Subchapter I. General Provisions.

Article 1. Felonies and Misdemeanors.

§ 14-1. Felonies and misdemeanors defined.

A felony is a crime which:

  1. Was a felony at common law;
  2. Is or may be punishable by death;
  3. Is or may be punishable by imprisonment in the State’s prison; or
  4. Is denominated as a felony by statute.

    Any other crime is a misdemeanor.

History. 1891, c. 205, s. 1; Rev., s. 3291; C.S., s. 4171; 1967, c. 1251, s. 1.

Cross References.

As to statute of limitations for misdemeanors, see G.S. 15-1 .

Editor’s Note.

Session Laws 2021-138, s. 20(a)-(g), provides: “(a) There is created the Bipartisan North Carolina Legislative Working Group on Criminal Law Recodification (Working Group). The purpose of the Working Group is to make recommendations to the General Assembly regarding a streamlined, comprehensive, orderly, and principled criminal code which includes all common law, statutory, regulatory, and ordinance crimes.

“(b) The Working Group shall be comprised of nine members selected as follows:

“(1) Two senators who are members of the majority party appointed by the President Pro Tempore of the Senate.

“(2) Two senators who are members of the minority party appointed by the Minority Leader of the Senate.

“(3) Two representatives who are members of the majority party appointed by the Speaker of the House of Representatives.

“(4) Two representatives who are members of the minority party appointed by the Minority Leader of the House of Representatives.

“(5) One individual appointed jointly by the President Pro Tempore of the Senate and the Speaker of the House of Representatives. This individual shall have served at least six years as a member of the General Assembly and shall serve as the chair of the Working Group.

“(c) The Working Group shall solicit comments and feedback from the public, as well as from all of the following:

“(1) The Administrative Office of the Courts.

“(2) The Attorney General.

“(3) The Conference of District Attorneys.

“(4) Indigent Defense Services.

“(5) The North Carolina Sheriffs’ Association.

“(6) The North Carolina Association of Chiefs of Police.

“(7) The North Carolina Police Benevolent Association.

“(8) The North Carolina League of Municipalities.

“(9) The North Carolina Association of County Commissioners.

“(d) All appointments to the Working Group shall be made no later than 30 days after this act becomes law. Vacancies on the Working Group shall be filled by the appointing authority. The Working Group, while in the discharge of its official duties, may exercise all the powers provided under the provisions of G.S. 120-19 and G.S. 120-19 .1 through G.S. 120-19.4 , including the power to request all officers, agents, agencies, and departments of the State to provide any information, data, or documents within their possession, ascertainable from their records, or otherwise available to them and the power to subpoena witnesses.

“(e) The Working Group shall meet upon the call of the chair but at least monthly beginning no later than September 15, 2021. A majority of the voting members shall constitute a quorum. Members shall receive per diem, subsistence, and travel allowances in accordance with G.S. 120-3.1 or G.S. 138-5 , as appropriate. The Legislative Services Commission, through the Legislative Services Officer, shall assign professional staff to monitor and provide technical assistance to the Working Group; provided, however, legislative staff shall not be made available at times when the 2021 General Assembly is in session. Upon the direction of the Legislative Services Commission, the Supervisors of Clerks of the Senate and of the House of Representatives shall assign clerical staff to the Working Group. The Working Group shall terminate on December 31, 2022.

“(f) The Working Group shall establish general principles which shall, at a minimum, provide for all of the following:

“(1) Incorporate existing statutory and common law offenses into Chapter 14 of the General Statutes, harmonizing additions with current Chapter content.

“(2) Apply consistent terminology across statutes and define all terminology.

“(3) Specify the required mental state or that an offense is a strict liability crime.

“(4) Eliminate redundant crimes and multiple punishment for the same conduct.

“(5) Simplify offense numbering.

“(6) Eliminate or modify unconstitutional provisions to ensure lawfulness.

“(7) Eliminate outdated laws.

“(8) Apply consistent, logical offense grading, with advice from the North Carolina Sentencing Policy and Advisory Commission.

“(g) The Working Group shall provide the following deliverables:

“(1) For common law crimes and crimes included in the North Carolina General Statutes:

“a. Create a database of all statutory and common law crimes, including statute number or common law designation; offense short title; elements; link to the statute; punishment; special and key features; frequency of charging, if available; and any proposed changes and the status of those changes in order to track decisions by the Working Group.

“b. Draft legislation amending, recodifying, or proposing changes to North Carolina criminal statutes using a format that is consistent with drafting conventions used by the North Carolina General Assembly, as directed by the Working Group.

“(2) For crimes created by local ordinances:

“a. Create a database of ordinance offenses, including ordinance title, general description, elements, punishment, and key feature coding. The Working Group will sample ordinances from diverse jurisdictions or review all, as time allows.

“b. Report on common ordinance crimes, including charging data, if available, and including presentation of a range of policy options for addressing ordinance crimes consistent with the Working Group’s goals.

“c. Draft legislation using a format that is consistent with drafting conventions used by the North Carolina General Assembly, as directed by the Working Group.

“(3) For crimes created by administrative boards and bodies:

“a. Create a database of all crimes created by administrative boards and bodies that make it a crime to violate any regulation created by an administrative board or body, with exemplary regulations and punishment levels.

“b. Report on policy options for addressing regulatory crimes consistent with the Working Group’s goals.

“c. Draft legislation using a format that is consistent with drafting conventions used by the North Carolina General Assembly, as directed by the Working Group.”

Session Laws 2021-138, s. 22(a), is a severability clause.

Legal Periodicals.

For article on punishment for crime in North Carolina, see 17 N.C.L. Rev. 205 (1939).

For brief comparison of criminal law sanctions in two civil rights cases, see 43 N.C.L. Rev. 667 (1965).

For case law survey as to criminal law and procedure, see 44 N.C.L. Rev. 970 (1966); 45 N.C.L. Rev. 910 (1967).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For article, “Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated,” see 66 N.C.L. Rev. 283 (1988).

For essay on how judges can contribute to legal professionalism, see 32 Wake Forest L. Rev. 621 (1997).

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

For article, “Innocence Modified,” see 89 N.C. L. Rev. 1083 (2011).

For article, “Is the White Collar Offender Privileged,” see 63 Duke L. J. 823 (2014).

For article, “Court Culture and Criminal Law Reform,” see 69 Duke L.J. Online 84 (2020).

CASE NOTES

Constitutionality. —

This section was held to be constitutional in State v. Lytle, 138 N.C. 738 , 51 S.E. 66, 1905 N.C. LEXIS 322 (1905).

Common-Law Provisions. —

Up to the time this section was passed the somewhat arbitrary common-law rule was followed as to what crimes were felonies, and what were misdemeanors and under that, conspiracy, and even such grave crimes as perjury and forgery, were misdemeanors. State v. Mallett, 125 N.C. 718 , 34 S.E. 651, 1899 N.C. LEXIS 294 (1899), aff'd, 181 U.S. 589, 21 S. Ct. 730, 45 L. Ed. 1015, 1901 U.S. LEXIS 1394 (1901); State v. Holder, 153 N.C. 606 , 69 S.E. 66, 1910 N.C. LEXIS 138 (1910). See State v. Hill, 91 N.C. 561 , 1884 N.C. LEXIS 117 (1884).

Punishment Determines Classification of Offenses. —

By this section, North Carolina adopted the rule, then almost universally prevalent, by which the nature of the punishment determined the classification of offenses; those which could be punished capitally or by imprisonment in the penitentiary were felonies (as to which there was no statute of limitations), and all others were misdemeanors, as to which prosecutions in this State were barred by two years. State v. Mallett, 125 N.C. 718 , 34 S.E. 651, 1899 N.C. LEXIS 294 (1899), aff'd, 181 U.S. 589, 21 S. Ct. 730, 45 L. Ed. 1015, 1901 U.S. LEXIS 1394 (1901).

The measure of punishment is the test of the nature of a crime, whether felony or misdemeanor. State v. Hyman, 164 N.C. 411 , 79 S.E. 284, 1913 N.C. LEXIS 80 (1913); Jones v. Brinkley, 174 N.C. 23 , 93 S.E. 372, 1917 N.C. LEXIS 7 (1917).

Offense Need Not Be Specified. —

It is not necessary to prescribe that an act is a misdemeanor or felony, as the punishment affixed determines that. State v. Lewis, 142 N.C. 626 , 55 S.E. 600, 1906 N.C. LEXIS 300 (1906).

Defective Indictment. —

Where an indictment did not use the word “feloniously” or state the statute showing a charge was felony, it was fatally defective and the charge was vacated. State v. Blakney, 156 N.C. App. 671, 577 S.E.2d 387, 2003 N.C. App. LEXIS 237 (2003).

Penitentiary Unknown to Common Law. —

The penitentiary, being a modern device, was unknown to the common law; therefore, punishment in the penitentiary could not be imposed by the common law. State v. McNeill, 75 N.C. 15 , 1876 N.C. LEXIS 189 (1876).

The use of the word “penitentiary” in prescribing the punishment for one convicted under a criminal statute has the same legal significance as the words “State’s prison,” both meaning the place of punishment in which convicts sentenced to imprisonment and hard labor are confined by the authority of law. State v. Burnett, 184 N.C. 783 , 115 S.E. 57, 1922 N.C. LEXIS 184 (1922).

Concurrence of General and Local Laws. —

This State’s general prohibition statutes, prohibiting the manufacture or sale of intoxicating liquors, expressly provided that they would not have the effect of repealing local or special statutes upon the subject, but they would continue in full force and in concurrence with the general law except where otherwise provided by law; and where the local law applicable made the offense a misdemeanor, punishable by imprisonment, in the county jail or penitentiary not exceeding two years, etc., the person convicted thereunder was guilty of a felony, by this section, and the two-year statute of limitations was not a bar to the prosecution. State v. Burnett, 184 N.C. 783 , 115 S.E. 57, 1922 N.C. LEXIS 184 (1922).

Conspiracy. —

A conspiracy to commit a felony is a felony and a conspiracy to commit a misdemeanor is a misdemeanor. State v. Abernethy, 220 N.C. 226 , 17 S.E.2d 25, 1941 N.C. LEXIS 511 (1941) (holding that a conspiracy to interfere with election officials in the discharge of their duties was a misdemeanor) .

An assault with intent to commit rape is a felony. State v. Gay, 224 N.C. 141 , 29 S.E.2d 458, 1944 N.C. LEXIS 319 (1944).

Criminal Contempt. —

Trial court, upon finding defendant in direct criminal contempt on six occasions, did not err in sentencing defendant to six consecutive thirty-day terms of imprisonment because a finding of contempt was not a Class 3 misdemeanor. State v. Burrow, 248 N.C. App. 663, 789 S.E.2d 923, 2016 N.C. App. LEXIS 810 (2016).

Suicide. —

At common law suicide was a felony, and attempted suicide was a misdemeanor, punishable by fine and imprisonment. State v. Willis, 255 N.C. 473 , 121 S.E.2d 854, 1961 N.C. LEXIS 616 (1961).

An attempt to commit suicide is an indictable misdemeanor in North Carolina. State v. Willis, 255 N.C. 473 , 121 S.E.2d 854, 1961 N.C. LEXIS 616 (1961).

Attempt to commit a felony is a misdemeanor, absent statutory provisions to the contrary. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

Fair Sentencing Act. —

Although the principal provisions of the Fair Sentencing Act are codified in Chapter 15A, Article 81A, the act resulted in revisions to other portions of the general statutes. See e.g., Chapter 14, Articles 1, 2, 2A, 33; Chapter 15A, Articles 58, 81A, 82, 83, 85, 85A, 89, 91; Chapter 148, Article 2, and Chapter 162, Article 4. State v. Ahearn, 307 N.C. 584 , 300 S.E.2d 689, 1983 N.C. LEXIS 1120 (1983).

For discussion of the historical background, policies, purposes, and implementation of the new Fair Sentencing Act, see State v. Ahearn, 307 N.C. 584 , 300 S.E.2d 689, 1983 N.C. LEXIS 1120 (1983).

§ 14-1.1. [Repealed]

Repealed by Session Laws 1993, c. 538, s. 2.

Cross References.

As to structured sentencing of persons convicted of crimes, see G.S. 15A-1340.10 et seq.

§ 14-2. [Repealed]

Repealed by Session Laws 1993, c. 538, s. 2.1.

Cross References.

As to structured sentencing of persons convicted of crimes, see G.S. 15A-1340.10 et seq.

§ 14-2.1. [Repealed]

Repealed by Session Laws 1993, c. 538, s. 3.

Cross References.

As to structured sentencing of persons convicted of crimes, see G.S. 15A-1340.10 et seq.

§ 14-2.2. [Repealed]

Repealed by Session Laws 2003-0378, s. 1, effective August 1, 2003.

Cross References.

As to persons convicted who used, displayed, or threatened to use or display a firearm during the commission of a felony, see G.S. 15A-1340.16 A.

§ 14-2.3. Forfeiture of gain acquired through criminal activity.

  1. Except as is otherwise provided in Article 3 of Chapter 31A, in the case of any violation of Article 13A of Chapter 14, or a general statute constituting a felony other than a nonwillful homicide, any money or other property or interest in property acquired thereby shall be forfeited to the State of North Carolina, including any profits, gain, remuneration, or compensation directly or indirectly collected by or accruing to any offender.
  2. An action to recover such property shall be brought by either a District Attorney or the Attorney General pursuant to G.S. 1-532 . The action must be brought within three years from the date of the conviction for the offense.
  3. Nothing in this section shall be construed to require forfeiture of any money or property recovered by law-enforcement officers pursuant to the investigation of an offense when the money or property is readily identifiable by the owner or guardian of the property or is traceable to him.

History. 1981, c. 840, s. 1; 2008-214, s. 1.

Effect of Amendments.

Session Laws 2008-214, s. 1, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “criminal activity” for “felonies” in the section heading; in subsection (a), inserted “Article 13A of Chapter 14, or” and substituted “offender” for “felon” at the end; substituted “offense” for “felony” at the end of subsection (b); and substituted “an offense” for “a felony” in subsection (c).

CASE NOTES

This section describes a category of contraband which is not per se illegal to possess at all times but is only derivatively subject to seizure due to its connection with illegal acts. State v. Triplett, 70 N.C. App. 341, 318 S.E.2d 913, 1984 N.C. App. LEXIS 3656 (1984).

For a comparison of contraband per se and derivative contraband, see State v. Triplett, 70 N.C. App. 341, 318 S.E.2d 913, 1984 N.C. App. LEXIS 3656 (1984).

This section authorizes the forfeiture of property characterized not by its use in a particular crime but as the acquired result of a crime. State v. Triplett, 70 N.C. App. 341, 318 S.E.2d 913, 1984 N.C. App. LEXIS 3656 (1984).

§ 14-2.4. Punishment for conspiracy to commit a felony.

  1. Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty of a felony that is one class lower than the felony he or she conspired to commit, except that a conspiracy to commit a Class A or Class B1 felony is a Class B2 felony, a conspiracy to commit a Class B2 felony is a Class C felony, and a conspiracy to commit a Class I felony is a Class 1 misdemeanor.
  2. Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a misdemeanor is guilty of a misdemeanor that is one class lower than the misdemeanor he or she conspired to commit, except that a conspiracy to commit a Class 3 misdemeanor is a Class 3 misdemeanor.

History. 1983, c. 451, s. 1; 1993, c. 538, s. 5; 1994, Ex. Sess., c. 22, s. 12; c. 24, s. 14(b).

CASE NOTES

A criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71, 1985 N.C. App. LEXIS 3919 (1985).

In order for a defendant to be found guilty of a conspiracy, it must be established by competent evidence that the defendant entered into an unlawful confederation for the criminal purposes alleged. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71, 1985 N.C. App. LEXIS 3919 (1985).

Proof of Conspiracy. —

While a conspiracy may be established from circumstantial evidence, there must be evidence to prove the agreement directly or such a state of facts that an agreement may be legally inferred. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71, 1985 N.C. App. LEXIS 3919 (1985).

If a conspiracy is to be proved by inferences drawn from the evidence, such evidence must point unerringly to the existence of a conspiracy. State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71, 1985 N.C. App. LEXIS 3919 (1985).

For case where proof of conspiracy to commit murder was held sufficient, see State v. Hunt, 323 N.C. 407 , 373 S.E.2d 400 (1988) sentence vacated and remanded for further consideration at 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990) in light of State v. Carey, 288 N.C. 254 , 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975).

Trial court did not err in denying defendants’ motions to dismiss conspiracy charge because substantial evidence existed, in that: (1) a co-defendant testified that defendants had agreed to distribute marijuana, were engaged in distributing marijuana, and stored marijuana in the house where defendants lived and sold marijuana from an apartment; (2) defendants each had access to the marijuana found in a garage; (3) one defendant was at the apartment when a law enforcement agent made a controlled delivery of a package containing marijuana; (4) marijuana, scales, packaging materials, and weapons were found at both the apartment and in the bedrooms and public areas of the house. State v. Harrington, 171 N.C. App. 17, 614 S.E.2d 337, 2005 N.C. App. LEXIS 1189 (2005).

Proof of conspiracy held insufficient where the State’s evidence indicated that the defendant wished her ex-husband dead, that they disagreed about custody, that she was present when her brother and husband discussed a plan for “taking care” of the victim, that someone made a long-distance phone call to the victim the night before his murder, that defendant borrowed ten dollars to take the kids camping on the day of the murder, that defendant participated in efforts to hide the victim’s body and personal belongings, and initially attempted to deceive law enforcement officers regarding his disappearance. State v. Merrill, 138 N.C. App. 215, 530 S.E.2d 608, 2000 N.C. App. LEXIS 597 (2000).

Court reversed defendant’s convictions of conspiracy to commit first-degree murder and conspiracy to commit shooting into occupied property because the cell phone call between defendant and another supported inferences about a possible agreement to resolve a money problem, but there was no mention of shooting, killing, or violence of any kind, and the evidence did not point unerringly toward conspiracies to commit murder or shoot into occupied property and was insufficient to support those charges. State v. Benardello, 164 N.C. App. 708, 596 S.E.2d 358, 2004 N.C. App. LEXIS 974 (2004).

The presumptive term for conspiracy is three years. State v. Arnold, 329 N.C. 128 , 404 S.E.2d 822, 1991 N.C. LEXIS 405 (1991).

Conspiracy and accessory before the fact are separate crimes which do not merge, because accessory before the fact requires actual commission of the contemplated felony, while conspiracy does not, and conspiracy requires an agreement, while an accessory need not agree to anything. State v. Fie, 80 N.C. App. 577, 343 S.E.2d 248, 1986 N.C. App. LEXIS 2248 (1986), rev'd, 320 N.C. 626 , 359 S.E.2d 774, 1987 N.C. LEXIS 2328 (1987).

Acting in Concert. —

In order to convict a defendant under a theory of acting in concert, it is not necessary that the defendant personally commit all the acts required to constitute the crime charged. When two or more persons act together with the common purpose to commit robbery, each is held responsible for the acts of the other done in the commission of the robbery. State v. Black, 328 N.C. 191 , 400 S.E.2d 398, 1991 N.C. LEXIS 95 (1991).

Indictment Facially Defective. —

Trial court was deprived of jurisdiction to adjudicate the charge of conspiracy because State’s failure to allege an essential element of the crime of conspiracy, the agreement to commit an unlawful act, rendered the indictment against defendant facially defective; merely charging in general terms a breach of G.S. 14-2.4 and referring to it in the indictment is not sufficient to cure the failure to charge the essentials of the offense“ in a plain, intelligible, and explicit manner. State v. Billinger, 213 N.C. App. 249, 714 S.E.2d 201, 2011 N.C. App. LEXIS 1402 (2011).

Evidence held to show a single conspiracy to feloniously break or enter various Durham retail stores within a four month period, and not 10 separate conspiracies to break or enter on 10 separate occasions. State v. Medlin, 86 N.C. App. 114, 357 S.E.2d 174, 1987 N.C. App. LEXIS 2691 (1987).

Convictions of both felonious conspiracy to commit felonious breaking and entering and felonious conspiracy to commit felonious larceny could not both be allowed to stand where there was evidence of only one agreement. State v. Hicks, 86 N.C. App. 36, 356 S.E.2d 595, 1987 N.C. App. LEXIS 2660 (1987).

Evidence supported the existence of multiple separate conspiracies because gang members first abducted and robbed a woman, then the members decided to kill the woman for her car; then, later that night the members decided to abduct, rob, and kill two other women for their car. State v. Tirado, 358 N.C. 551 , 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

Sufficient evidence existed to allow a jury to decide whether the defendant engaged in two conspiracies instead of one where the State presented evidence about the abandonment of the first attack, the time interval between the assaults, and the different motivations for the crimes. State v. Choppy, 141 N.C. App. 32, 539 S.E.2d 44, 2000 N.C. App. LEXIS 1275 (2000).

Conviction for Conspiracy and Substantive Offense. —

It is a fundamental principle of substantive criminal law that a defendant may properly be convicted of, and punished for, both conspiracy and the substantive offense which the defendant conspired to commit. Therefore, defendant was properly convicted of, and punished for, both conspiracy to commit murder and first degree murder. State v. Morston, 336 N.C. 381 , 445 S.E.2d 1, 1994 N.C. LEXIS 311 (1994).

Conspiracy to Commit Murder. —

Defendant took advantage of position of trust or confidence where victim of conspiracy to commit murder was defendant’s husband. State v. Arnold, 329 N.C. 128 , 404 S.E.2d 822, 1991 N.C. LEXIS 405 (1991).

Defendant was properly charged and convicted of conspiracy to commit first-degree murder under the felony murder rule because the instruction that was given requiring the jury to find an agreement and specific intent to kill eliminated the possibility that an unintentional felony murder formed the basis for the specific intent underlying the conspiracy of which the jury convicted defendant. State v. Curry, 171 N.C. App. 568, 615 S.E.2d 327, 2005 N.C. App. LEXIS 1312 (2005).

Motion to dismiss was properly denied where the evidence showed that defendant drove through an apartment complex in a borrowed car with victim’s brother, exited the vehicle in a certain area and returned to the vehicle after gunshots, and the brother fabricated a story to police to avoid identification, there was sufficient evidence to support a finding of conspiracy to commit murder. State v. Brewton, 173 N.C. App. 323, 618 S.E.2d 850, 2005 N.C. App. LEXIS 2027 (2005), writ denied, 636 S.E.2d 812, 2006 N.C. LEXIS 1141 (N.C. 2006).

Conviction for conspiracy to commit first degree murder was supported by sufficient evidence because, inter alia, defendant admitted to (1) knowing what was going to happen and to having remorse about thinking up such a thing and not stopping it, (2) conceiving of and agreeing to the plan to kill defendant’s mother, and (3) assisting the shooter in making it look like a break in and cleaning up the scene. State v. Crowe, 188 N.C. App. 765, 656 S.E.2d 688, 2008 N.C. App. LEXIS 261 (2008).

Proof Showed Conspiracy to Commit Larceny Rather Than Embezzlement. —

Lawful possession or control element of the crime of embezzlement was not satisfied when defendant’s wife, an administrative employee, took a corporate signature stamp without permission and wrote unauthorized corporate checks, thereby misappropriating funds from her employer; such evidence supported a finding of larceny rather than embezzlement, and thus, conspiracy to commit larceny rather than embezzlement. State v. Weaver, 359 N.C. 246 , 607 S.E.2d 599, 2005 N.C. LEXIS 30 (2005).

Dismissal of Charges as to One Coconspirator. —

Dismissal of charges pursuant to a plea agreement does not constitute an acquittal at law; therefore, in the absence of inconsistent verdicts for the same conspiracy (i.e., where all but one of the accused in the conspiracy has received an acquittal), the conviction of the sole remaining conspirator would not be set aside. State v. Gibson, 333 N.C. 29 , 424 S.E.2d 95, 1992 N.C. LEXIS 670 (1992).

Jury Instructions. —

Finding of “an agreement to kill” is equivalent to a finding of an agreement to commit an intentional murder, even in the absence of an instruction requiring the latter finding, and the finding of an agreement to kill is equivalent to the finding of an agreement to premeditate and deliberate. State v. Brewton, 173 N.C. App. 323, 618 S.E.2d 850, 2005 N.C. App. LEXIS 2027 (2005), writ denied, 636 S.E.2d 812, 2006 N.C. LEXIS 1141 (N.C. 2006).

Trial court committed plain error in failing to instruct the jury on conspiracy to commit common law robbery as the jury was properly instructed on robbery with a dangerous weapon and common law robbery, apparently based on the conflicting evidence regarding whether the gun used was real or fake; the same conflicting evidence directly pertained to defendant’s charge of conspiracy to commit common law robbery as there was conflicting evidence as to whether the agreement was that the person who committed the robbery would use a real or a fake gun. State v. Carter, 177 N.C. App. 539, 629 S.E.2d 332, 2006 N.C. App. LEXIS 1078 , aff'd, 361 N.C. 108 , 637 S.E.2d 537, 2006 N.C. LEXIS 1286 (2006).

Since the evidence showed that defendant and his coconspirator agreed to take as many batteries as they could and the evidence showed that the value of those taken was well in excess of $1,000, the trial court did not err in denying defendant’s request for a jury instruction on the lesser-included offense of conspiracy to commit misdemeanor, rather than felony, larceny. State v. Fish, 229 N.C. App. 584, 748 S.E.2d 65, 2013 N.C. App. LEXIS 963 (2013).

Sufficient Evidence to Go to Jury on Conspiracy to Commit Robbery with Dangerous Weapon. —

Defendant’s motion to dismiss a conspiracy to commit robbery with a dangerous weapon charge was properly denied as there was conflicting evidence as to whether a gun given to a person who committed a robbery (the actor) was real or not and there was sufficient evidence that the gun was an operable weapon where: (1) defendant and two other men told the actor to rob a store in exchange for drugs, which she agreed to do, (2) the men provided the actor with a gun and she committed the robbery, (3) the actor spoke primarily with defendant regarding the robbery, (4) the actor stated that one of the men told her that the gun was fake, but that she was uncertain whether it was fake, and (5) the actor stated that defendant and the others had a real gun and a fake gun and that she believed she had been given the fake one. State v. Carter, 177 N.C. App. 539, 629 S.E.2d 332, 2006 N.C. App. LEXIS 1078 , aff'd, 361 N.C. 108 , 637 S.E.2d 537, 2006 N.C. LEXIS 1286 (2006).

§ 14-2.5. Punishment for attempt to commit a felony or misdemeanor.

Unless a different classification is expressly stated, an attempt to commit a misdemeanor or a felony is punishable under the next lower classification as the offense which the offender attempted to commit. An attempt to commit a Class A or Class B1 felony is a Class B2 felony, an attempt to commit a Class B2 felony is a Class C felony, an attempt to commit a Class I felony is a Class 1 misdemeanor, and an attempt to commit a Class 3 misdemeanor is a Class 3 misdemeanor.

History. 1993, c. 538, s. 6; 1994, Ex. Sess., c. 22, s. 11; c. 24, s. 14(b).

CASE NOTES

Sufficiency of Evidence to Deny Motion to Dismiss Attempted Felony Larceny Charge. —

Evidence was sufficient to support defendant’s attempted felony larceny charge because the evidence presented by the prosecution at trial tended to show that defendant cut the connections of an air-conditioning (A/C) unit, loaded the A/C unit into a trailer behind defendant’s vehicle, and drove away from the mobile home of the A/C unit’s owner with the A/C unit in tow. When defendant was stopped, defendant was far enough from the mobile home that it could not be seen. State v. Primus, 227 N.C. App. 428, 742 S.E.2d 310, 2013 N.C. App. LEXIS 533 (2013).

Sufficiency of Evidence to Deny Motion to Dismiss Attempted Murder Charge. —

Denial of defendant’s motion to dismiss the charge of attempted first-degree murder arising from defendant’s act of shooting his wife was proper because the State presented evidence that defendant removed the wife’s cell phone from her reach, left the room, returned with a .45 caliber pistol, and shot her in the abdomen with a hollow point bullet; defendant then denied the wife medical assistance for approximately twelve hours. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802, 2013 N.C. App. LEXIS 69 (2013).

Sentence Aggravation. —

Trial court erred in sentencing defendant as a level IV offender on his conviction of second-degree murder, as the trial court erred in finding that a prior New York conviction of N.Y. Penal Law § 120.05 was substantially similar to North Carolina’s offense of simple assault set forth in G.S. 14-33(a), as the North Carolina offense required serious injury to the victim and the New York offense did not; furthermore, under G.S. 14-2.5 , an attempt to commit a misdemeanor or a felony is punishable under the next lower classification as the offense the offender attempted to commit, and defendant’s prior New York conviction for attempted second-degree assault should have been treated as a class 3 misdemeanor, which would have not had any point value for prior record purposes. State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600, 2006 N.C. App. LEXIS 45 (2006).

By also making attempted computer solicitation a felony under amended G.S. 14-202.3 , the legislature merely increased the severity of the crime; it did not create the new crime of attempt. State v. Ellis, 188 N.C. App. 820, 657 S.E.2d 51, 2008 N.C. App. LEXIS 272 (2008).

Trial court erred in sentencing defendant two classes higher than what was statutorily allowed for attempted second-degree kidnapping. State v. Jacobs, 239 N.C. App. 425, 768 S.E.2d 883, 2015 N.C. App. LEXIS 75 (2015).

Attempted Bribery of Juror is Class G Felony. —

Because North Carolina’s statutes do not provide a specific classification for attempted bribery of a juror, an attempt to commit the felony of bribery of a juror is punishable under the next lower classification as the offense which the offender attempted to commit pursuant to G.S. 14-2.5 . Thus, attempted bribery of a juror should be classified as a Class G felony pursuant to G.S. 14-220 (classifying bribery of a juror as a Class F felony). State v. Ross, 221 N.C. App. 185, 727 S.E.2d 370, 2012 N.C. App. LEXIS 719 (2012), writ denied, 366 N.C. 570 , 738 S.E.2d 369, 2013 N.C. LEXIS 231 (2013).

§ 14-2.6. Punishment for solicitation to commit a felony or misdemeanor.

  1. Unless a different classification is expressly stated, a person who solicits another person to commit a felony is guilty of a felony that is two classes lower than the felony the person solicited the other person to commit, except that a solicitation to commit a Class A or Class B1 felony is a Class C felony, a solicitation to commit a Class B2 felony is a Class D felony, a solicitation to commit a Class H felony is a Class 1 misdemeanor, and a solicitation to commit a Class I felony is a Class 2 misdemeanor.
  2. Unless a different classification is expressly stated, a person who solicits another person to commit a misdemeanor is guilty of a Class 3 misdemeanor.

History. 1993, c. 538, s. 6.1; 1994, Ex. Sess., c. 22, s. 13; c. 24, s. 14(b).

CASE NOTES

Solicitation conviction affirmed, no plain error. —

It was not plain error for the trial court to admit testimony about defendant’s alleged threats to kill and engage in a swap of drugs for stolen goods with a detective because given the strength of the other evidence that defendant solicited the shooting, the admission was not fundamental error, and the admission of other testimony from the detective was offered to provide background to the meeting between the detective, defendant, and defendant’s friend and was not so prejudicial that it resulted in a miscarriage of justice. State v. Benardello, 164 N.C. App. 708, 596 S.E.2d 358, 2004 N.C. App. LEXIS 974 (2004).

§ 14-3. Punishment of misdemeanors, infamous offenses, offenses committed in secrecy and malice, or with deceit and intent to defraud, or with ethnic animosity.

  1. Except as provided in subsections (b) and (c), every person who shall be convicted of any misdemeanor for which no specific classification and no specific punishment is prescribed by statute shall be punishable as a Class 1 misdemeanor. Any misdemeanor that has a specific punishment, but is not assigned a classification by the General Assembly pursuant to law is classified as follows, based on the maximum punishment allowed by law for the offense as it existed on the effective date of Article 81B of Chapter 15A of the General Statutes:
    1. If that maximum punishment is more than six months imprisonment, it is a Class 1 misdemeanor;
    2. If that maximum punishment is more than 30 days but not more than six months imprisonment, it is a Class 2 misdemeanor; and
    3. If that maximum punishment is 30 days or less imprisonment or only a fine, it is a Class 3 misdemeanor.

      Misdemeanors that have punishments for one or more counties or cities pursuant to a local act of the General Assembly that are different from the generally applicable punishment are classified pursuant to this subsection if not otherwise specifically classified.

  2. If a misdemeanor offense as to which no specific punishment is prescribed be infamous, done in secrecy and malice, or with deceit and intent to defraud, the offender shall, except where the offense is a conspiracy to commit a misdemeanor, be guilty of a Class H felony.
  3. If any Class 2 or Class 3 misdemeanor is committed because of the victim’s race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class 1 misdemeanor. If any Class A1 or Class 1 misdemeanor offense is committed because of the victim’s race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class H felony.

History. R.C., c. 34, s. 120; Code, s. 1097; Rev., s. 3293; C.S., s. 4173; 1927, c. 1; 1967, c. 1251, s. 3; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, ss. 2, 47, 48; 1981, c. 63, s. 1; c. 179, s. 14; 1991, c. 702, s. 2; 1993, c. 538, s. 7; 1994, Ex. Sess., c. 14, s. 2; c. 24, s. 14(b); 1995 (Reg. Sess., 1996), c. 742, s. 6; 2008-197, s. 4.1.

Cross References.

As to uttering worthless checks, see G.S. 14-106 and 14-107.

As to statute of limitations for misdemeanors, see G.S. 15-1 .

Effect of Amendments.

Session Laws 2008-197, s. 4.1, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “Class H” for “Class I” in subsection (c).

Legal Periodicals.

As to lack of clear test as to what constitutes infamous offense, see 28 N.C.L. Rev. 103 (1950).

For case law survey as to excessive punishment, see 45 N.C.L. Rev. 910 (1967).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note, “North Carolina County Jail Inmates’ Right of Access to Courts,” see 66 N.C.L. Rev. 583 (1988).

Survey of Developments in North Carolina Law and the Fourth Circuit, 1999: Clarifying North Carolina’s Ethnic Intimidation Statute and Penalty Enhancement for Bias Crimes, 78 N.C.L. Rev. 2003 (2000).

CASE NOTES

Analysis

I.General Consideration

Constitutionality. —

The punishment provisions of subsection (a) of this section are not unconstitutional. State v. Hullender, 8 N.C. App. 41, 173 S.E.2d 581, 1970 N.C. App. LEXIS 1475 (1970).

Trial court’s decision to enhance the common law obstruction of justice charge against defendant to make it a felony pursuant to G.S. 14-3(b) was not an ex post facto application of the law. State v. Wright, 206 N.C. App. 239, 696 S.E.2d 832, 2010 N.C. App. LEXIS 1444 (2010).

Section Places Ceiling on Court’s Power to Punish. —

The maximum provided in this section and G.S. 14-2 places a ceiling on the court’s power to punish by imprisonment when a ceiling is not otherwise fixed by law. Jones v. Ross, 257 F. Supp. 798, 1966 U.S. Dist. LEXIS 6824 (E.D.N.C. 1966).

This section has reference to misdemeanors other than those created by Article 3 of Chapter 20 of the General Statutes, which relates to motor vehicles. State v. Massey, 265 N.C. 579 , 144 S.E.2d 649, 1965 N.C. LEXIS 1053 (1965).

This section does not mean that the court may not place offenders on probation, or make use of other State facilities and services in proper cases. State v. Willis, 255 N.C. 473 , 121 S.E.2d 854, 1961 N.C. LEXIS 616 (1961).

Common-Law Offenses. —

Misdemeanors made punishable as at common law, or punishable by fine or imprisonment, or both, can be punished by fine, or imprisonment in the county jail, or both. State v. McNeill, 75 N.C. 15 , 1876 N.C. LEXIS 189 (1876); State v. Powell, 94 N.C. 920 , 1886 N.C. LEXIS 171 (1886); State v. Brown, 253 N.C. 195 , 116 S.E.2d 349, 1960 N.C. LEXIS 469 (1960).

If a statute prohibits a matter of public grievance, or commands a matter of public convenience, all acts or omissions contrary to the prohibition or command of the statute are misdemeanors at common law, notwithstanding the fact that no punishment is prescribed in the statute. State v. Bloodworth, 94 N.C. 918 , 1886 N.C. LEXIS 170 (1886).

Discretion of Trial Judge. —

Where the extent of the punishment is referred to the discretion of the trial judge, his sentence may not be interfered with by the appellate court, except in case of manifest and gross abuse. State v. Miller, 94 N.C. 904 , 1886 N.C. LEXIS 166 (1886); State v. Smith, 174 N.C. 804 , 93 S.E. 910, 1917 N.C. LEXIS 215 (1917).

The fact that others tried on similar charges are given shorter sentences is not ground for legal objection, the punishment imposed in a particular case, if within statutory limits, being within the sound discretion of the trial judge. State v. Best, 11 N.C. App. 286, 181 S.E.2d 138, 1971 N.C. App. LEXIS 1506 , cert. denied, 279 N.C. 350 , 182 S.E.2d 582, 1971 N.C. LEXIS 793 (1971).

Punishment “in the discretion of the court” is not specific punishment and, hence, is governed by the limits (ten years for felonies and two years for misdemeanors) prescribed in this section and G.S. 14-2 . State v. Adams, 266 N.C. 406 , 146 S.E.2d 505, 1966 N.C. LEXIS 1362 (1966).

Punishment Provisions of This Section and § 14-277. —

While G.S. 14-277 (d) provides in pertinent part that a violation of both subsections (a) and (b) of G.S. 14-277 is a misdemeanor, it also provides that a violation of G.S. 14-277(a) is punishable under subsection (a) of this section and a violation of G.S. 14-277(b) is punishable under G.S. 14-277(d) . The punishment provisions of subsection (a) of this section and G.S. 14-277(d) vary. State v. Chisholm, 90 N.C. App. 526, 369 S.E.2d 375, 1988 N.C. App. LEXIS 617 (1988).

Where Felony and Misdemeanor Counts Are Consolidated for Judgment. —

Where defendant was tried and convicted upon an indictment charging felonious breaking and entering and misdemeanor larceny, and both counts were consolidated for judgment, the fact that the one sentence imposed was in excess of that permissible upon conviction of the misdemeanor was immaterial and was not prejudicial where it did not exceed that permitted upon conviction of the felony. State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749, 1970 N.C. App. LEXIS 1309 (1970).

Where Statute Is Repealed Before Judgment. —

Where a statute prescribing the punishment for a crime is expressly and unqualifiedly repealed after such crime has been committed, but before final judgment, though after conviction, no punishment can be imposed. State v. Cress, 49 N.C. 421 , 1857 N.C. LEXIS 114 (1857); State v. Nutt, 61 N.C. 20 , 1866 N.C. LEXIS 34 (1866); State v. Long, 78 N.C. 571 , 1878 N.C. LEXIS 280 (1878); State v. Massey, 103 N.C. 356 , 9 S.E. 632, 1889 N.C. LEXIS 120 (1889); State v. Biggers, 108 N.C. 760 , 12 S.E. 1024, 1891 N.C. LEXIS 137 (1891); State v. Perkins, 141 N.C. 797 , 53 S.E. 735, 1906 N.C. LEXIS 163 (1906).

Excessive Punishment. —

The word “or,” in criminal statutes, cannot be interpreted to mean “and,” when the effect is to aggravate the offense or increase the punishment. And so where a statute provides that a party guilty of the offense created by it shall be fined or imprisoned, the court has no power to both fine and imprison. State v. Walters, 97 N.C. 489 , 2 S.E. 539, 1887 N.C. LEXIS 199 (1887).

A sentence of imprisonment for five years in the county jail and a recognizance of $500.00 to keep the peace for five years after the expiration thereof upon a defendant convicted of assault and battery is excessive and therefore unconstitutional. State v. Driver, 78 N.C. 423 , 1878 N.C. LEXIS 244 (1878).

The maximum punishment for a general misdemeanor is two years. State v. Burris, 3 N.C. App. 35, 164 S.E.2d 52, 1968 N.C. App. LEXIS 781 (1968).

A misdemeanor punishable in the discretion of the court means a maximum of two years. Atkins v. City of Charlotte, 296 F. Supp. 1068, 1969 U.S. Dist. LEXIS 9581 (W.D.N.C. 1969).

Same — Not Cruel or Unusual. —

It is well settled that when no time is fixed by the statute, an imprisonment for two years will not be held cruel and unusual. State v. Driver, 78 N.C. 423 , 1878 N.C. LEXIS 244 (1878); State v. Miller, 94 N.C. 904 , 1886 N.C. LEXIS 166 (1886); State v. Farrington, 141 N.C. 844 , 53 S.E. 954, 1906 N.C. LEXIS 172 (1906).

Where Common-Law Offense Is Altered by Statute. —

Where the grade of a common-law offense has been made higher by statute, the indictment must conclude against the statute, but when the punishment has been mitigated, it may conclude at common law. State v. Lawrence, 81 N.C. 522 , 1879 N.C. LEXIS 220 (1879).

Effect of Consent of Defendant. —

No consent of the defendant can confer a jurisdiction which is denied to the court by the law, and any punishment imposed, other than that prescribed for the offense, is illegal. In re Schenck, 74 N.C. 607 , 1876 N.C. LEXIS 154 (1876).

Failure to Instruct on Lesser-Included Offense. —

Where there was substantial evidence which would have supported a reasonable finding that defendant committed the lesser-included offense of attempted murder, the trial court erred in failing to instruct the jury on the lesser-included offense of attempted murder. State v. Collins, 334 N.C. 54 , 431 S.E.2d 188, 1993 N.C. LEXIS 291 (1993).

Sufficiency of Indictment. —

While the indictment did not use the precise language in G.S. 14-3 , use of a sufficiently similar phrase was sufficient to provide adequate notice to defendant that the State intended to seek elevation of the obstruction of justice charge to a felony. State v. Blount, 209 N.C. App. 340, 703 S.E.2d 921, 2011 N.C. App. LEXIS 78 (2011).

Jurisdiction. —

The superior court did not have jurisdiction where the indictment failed to allege the elements of a felony. State v. Bell, 121 N.C. App. 700, 468 S.E.2d 484, 1996 N.C. App. LEXIS 135 (1996), cert. denied, 483 S.E.2d 180, 1997 N.C. LEXIS 90 (N.C. 1997).

II.Infamous Offenses, etc., Generally

Intent of Subsection (b). —

When the legislature used the words “done in secrecy and malice, or with deceit and intent to defraud,” its manifest purpose was to describe offenses in which either secrecy and malice, or the employment of deceit with intent to defraud, are elements necessary to their criminality as defined by law. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

Subsection (b) and the reported cases leave some lack of certainty as to what crimes may be designated and punished as infamous. State v. Keen, 25 N.C. App. 567, 214 S.E.2d 242, 1975 N.C. App. LEXIS 2324 (1975).

“Infamous” Refers to Nature of Offense. —

A statute which names the punishment for all misdemeanors, where no specific punishment is prescribed, and provides that if the offense be “infamous,” it shall be punished as a felony, necessarily refers to the degrading nature of the offense, and not to the measure of punishment. State v. Surles, 230 N.C. 272 , 52 S.E.2d 880, 1949 N.C. LEXIS 614 (1949); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772, 1985 N.C. App. LEXIS 4185 (1985), aff'd in part and rev'd in part, 317 N.C. 164 , 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (1986).

Meaning of “infamous” must be determined with reference to the degrading nature of the offense and not the measure of punishment. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

In determining whether an offense is “infamous” and shall be punished as a felony for that reason under subsection (b) of this section, the courts look to the nature of the offense. State v. Glidden, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

What Is an “Infamous” Crime. —

A crime is “infamous” within the meaning of the statute if it is an act of depravity, involves moral turpitude, and reveals a heart devoid of social duty and a mind fatally bent on mischief. State v. Glidden, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

In determining whether a misdemeanor is an offense “done in secrecy and malice,” the courts must apply a definitional test and determine whether both “secrecy and malice” are necessary or inherent elements of the offense. State v. Glidden, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

Fact That Misdemeanor Is Infamous Affects Only Punishment. —

Under North Carolina law a determination that a misdemeanor is infamous affects only the punishment. United States v. MacCloskey, 682 F.2d 468, 1982 U.S. App. LEXIS 18255 (4th Cir. 1982).

The grade or class of a crime is determined by the punishment prescribed therefor and not the nomenclature of the statute, a felony being a crime punishable by death or imprisonment in the State prison, and while all misdemeanors for which no punishment is prescribed are punishable as misdemeanors at common law, where the offense is infamous, or done in secrecy or malice, or with deceit and intent to defraud, it is punishable by imprisonment in the county jail or State prison, under this section, and is a felony. State v. Harwood, 206 N.C. 87 , 173 S.E. 24, 1934 N.C. LEXIS 112 (1934).

Anonymous or Threatening Letters. —

Subsection (b) of this section and G.S. 14-394 , relating to anonymous or threatening letters, set up different punishment levels for the same criminal act without discriminating against any class of defendants, and do not violate equal protection. State v. Glidden, 76 N.C. App. 653, 334 S.E.2d 101, 1985 N.C. App. LEXIS 3929 (1985), rev'd, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

III.Particular Offenses

Attempting to receive stolen property is not a crime of the same degree as attempted robbery, attempted burglary and an attempt to commit a crime against nature. Nor does the crime of attempted receipt of stolen property include secrecy, malice, deceit or intent to defraud as necessary elements. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

Assaults. —

Upon the ruling in State v. Rippy, 127 N.C. 516 , 37 S.E. 148 (1900), overruled on other grounds, State v. Blackmon, 260 N.C. 352 , 132 S.E.2d 880 (1963), G.S. 14-33 , bearing directly on the case of assaults, with or without intent to kill, making provision for punishment of such offenses, is to be regarded as specific, within the meaning of this section, and entirely withdraws the case of assault from the operation of this section. State v. Smith, 174 N.C. 804 , 93 S.E. 910, 1917 N.C. LEXIS 215 (1917).

In a case in which defendant appealed his conviction for assault with a deadly weapon with ethnic animosity, he unsuccessfully argued that the statute under which he was charged could not apply to the facts presented at trial because both he and the victim were of the same race. The victim was white and he was having a relationship with a black female, and, had he been black, defendant might not have shot at him. State v. Brown, 202 N.C. App. 499, 689 S.E.2d 210, 2010 N.C. App. LEXIS 276 (2010).

Conspiracy to Charge with Infanticide. —

A conspiracy to charge one with infanticide, being only a common-law misdemeanor, is not punishable by imprisonment in the penitentiary. State v. Jackson, 82 N.C. 565 , 1880 N.C. LEXIS 302 (1880).

Conspiracy to violate the liquor law is a misdemeanor and punishable as at common law, that is, by fine or imprisonment, or both. State v. Brown, 253 N.C. 195 , 116 S.E.2d 349, 1960 N.C. LEXIS 469 (1960).

Larceny. —

The punishment upon conviction of the misdemeanor of larceny may not exceed two years. State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749, 1970 N.C. App. LEXIS 1309 (1970).

Where an indictment charged larceny of property of the value of $200.00 (now $400.00) or less, but contained no allegation the larceny was from a building by breaking and entering, the crime charged was a misdemeanor for which the maximum prison sentence was two years, notwithstanding all the evidence tended to show the larceny was accomplished by means of a felonious breaking and entering. State v. Bowers, 273 N.C. 652 , 161 S.E.2d 11, 1968 N.C. LEXIS 644 (1968).

Attempt to Obtain Property by False Pretense. —

Any attempt to obtain property by false pretense necessarily is done with intent to deceive. By its plain language subsection (b) of this section makes any attempt to obtain property by false pretenses a felony. State v. Page, 32 N.C. App. 478, 232 S.E.2d 460, 1977 N.C. App. LEXIS 1977 , cert. denied, 292 N.C. 643 , 235 S.E.2d 64, 1977 N.C. LEXIS 1165 (1977).

Destruction of Public Records. —

A plea of guilty to an indictment charging defendant with willfully, feloniously, secretly, and maliciously giving aid and assistance to his codefendant by manufacturing evidence, altering and destroying original records in the office of the Secretary of Revenue, was a confession of a felony under this section, although G.S. 14-76 designates such offense as a misdemeanor. State v. Harwood, 206 N.C. 87 , 173 S.E. 24, 1934 N.C. LEXIS 112 (1934).

An attempt to commit burglary constitutes a felony and is punishable by imprisonment in the State prison for a term not in excess of ten years, since it is an infamous offense or done in secrecy and malice, or both, within the purview of the statute. State v. Surles, 230 N.C. 272 , 52 S.E.2d 880, 1949 N.C. LEXIS 614 (1949).

An attempt to break and enter is a misdemeanor punishable under subsection (a) of this section. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

Attempted Robbery. —

An attempt to commit common-law robbery is an infamous crime. State v. McNeely, 244 N.C. 737 , 94 S.E.2d 853, 1956 N.C. LEXIS 510 (1956); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772, 1985 N.C. App. LEXIS 4185 (1985), aff'd in part and rev'd in part, 317 N.C. 164 , 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (1986).

An attempt to commit robbery with firearms is an infamous offense. State v. Parker, 262 N.C. 679 , 138 S.E.2d 496, 1964 N.C. LEXIS 727 (1964).

While at common law an attempt to commit a felony was a misdemeanor, the Supreme Court has held that an attempt to commit the offense of common-law robbery is an infamous crime, and by virtue of subsection (b) has been converted into a felony. State v. Bailey, 4 N.C. App. 407, 167 S.E.2d 24, 1969 N.C. App. LEXIS 1506 (1969).

An attempt to commit robbery is an infamous crime. State v. Best, 11 N.C. App. 286, 181 S.E.2d 138, 1971 N.C. App. LEXIS 1506 , cert. denied, 279 N.C. 350 , 182 S.E.2d 582, 1971 N.C. LEXIS 793 (1971).

Common-Law Robbery. —

Common-law robbery is an infamous crime which consists of the felonious taking of money or goods of any value from the person of another or in his presence against his will, by violence or putting him in fear. State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772, 1985 N.C. App. LEXIS 4185 (1985), aff'd in part and rev'd in part, 317 N.C. 164 , 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (1986).

Solicitation to commit common-law robbery is an infamous crime within the meaning of this section. State v. Mann, 317 N.C. 164 , 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (1986).

Solicitation to Commit Murder. —

Since it appears to be settled that conspiracy to murder is an infamous offense and punishable as a felony, and that solicitation to commit murder is but one step away from conspiracy to murder, sentence of not less than five nor more than 10 years was authorized by law. State v. Keen, 25 N.C. App. 567, 214 S.E.2d 242, 1975 N.C. App. LEXIS 2324 (1975).

Solicitation to commit murder constitutes an “infamous” offense. United States v. MacCloskey, 682 F.2d 468, 1982 U.S. App. LEXIS 18255 (4th Cir. 1982).

An attempt to commit murder is an infamous misdemeanor specifically elevated by subsection (b) to the status of a Class H felony. State v. Collins, 334 N.C. 54 , 431 S.E.2d 188, 1993 N.C. LEXIS 291 (1993).

Assault upon Female Child. —

In a prosecution charging assault with intent to commit rape, where at the conclusion of the State’s evidence defendant tendered a plea of guilty of an assault upon a female, and the court accepted defendant’s plea and found as a fact that the female referred to was a child nine years of age and defendant was 34 years of age, and also, that the assault was aggravated, shocking and outrageous, the accepted plea was for a misdemeanor under G.S. 14-33 and not for an “infamous offense” punishable as a felony, and judgment that the defendant be confined to the State’s prison for not less than eight nor more than 10 years, was a violation of this section. State v. Tyson, 223 N.C. 492 , 27 S.E.2d 113, 1943 N.C. LEXIS 308 (1943).

Denial of Access to Child in Sexual Abuse Investigation. —

Sufficient evidence supported defendant’s conviction for felonious obstruction of justice based upon a denial of access to her child; defendant denied officers and social workers access to her child throughout their investigation into the child’s sexual abuse allegations against defendant’s boyfriend. State v. Ditenhafer, 373 N.C. 116 , 834 S.E.2d 392, 2019 N.C. LEXIS 1063 (2019).

Evidence was sufficient to allow a reasonable inference that defendant acted with deceit and the intent to defraud necessary to commit felony common law obstruction of justice because it showed that, despite believing abuse of her daughter had occurred, defendant took steps to frustrate attempts by law enforcement and social workers to investigate that abuse, defendant coached her daughter on what to say and pressured her to lie, and after catching her husband raping her daughter, defendant instructed her daughter not to tell anyone. State v. Ditenhafer, 270 N.C. App. 300, 840 S.E.2d 850, 2020 N.C. App. LEXIS 171 (2020), aff'd, 376 N.C. 846 , 855 S.E.2d 162, 2021- NCSC-19, 2021 N.C. LEXIS 170 (2021).

Attempt to Commit Crime Against Nature. —

While an attempt to commit a felony is a misdemeanor, when such misdemeanor is infamous, or done in secrecy and malice, or with deceit and intent to defraud, it is punishable by imprisonment in the State’s prison, and is made a felony by this section, and an attempt to commit the crime against nature is infamous and is punishable by imprisonment in the State’s prison as a felony within the definition of this section. State v. Spivey, 213 N.C. 45 , 195 S.E. 1, 1938 N.C. LEXIS 9 (1938); State v. Mintz, 242 N.C. 761 , 89 S.E.2d 463, 1955 N.C. LEXIS 678 (1955).

An attempt to commit the crime against nature is an infamous act within the meaning of this section and is punishable as a felony. State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965).

Solicitation to commit a crime against nature cannot be construed as an attempt to commit a crime against nature; solicitation to commit a crime against nature is therefore not an “infamous misdemeanor” under this section; and the superior court therefore did not have original jurisdiction of such a charge. State v. Tyner, 50 N.C. App. 206, 272 S.E.2d 626, 1980 N.C. App. LEXIS 3474 (1980), cert. denied, 302 N.C. 633 , 280 S.E.2d 451, 1981 N.C. LEXIS 1264 (1981); State v. Mann, 77 N.C. App. 654, 335 S.E.2d 772, 1985 N.C. App. LEXIS 4185 (1985), aff'd in part and rev'd in part, 317 N.C. 164 , 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (1986).

Driving While License Permanently Revoked. —

A maximum term of 18 months and a minimum term of 12 months does not exceed the statutory maximum for the crime of driving while license permanently revoked. Since only the minimum punishment of not less than one year is specified in G.S. 20-28(b), this statute must be read together with this section, applicable to motor vehicle misdemeanors contained in sections other than Article 3 of Chapter 20, to find the maximum term of imprisonment. State v. Wells, 59 N.C. App. 682, 298 S.E.2d 73, 1982 N.C. App. LEXIS 3189 (1982).

Driving While Impaired. —

There was no merit to defendant’s argument that the trial court erroneously assigned prior record points to his out-of-state driving while impaired (DWI) convictions because in North Carolina, DWI is a Class 1 misdemeanor and the Alabama convictions could have resulted in imprisonment for more than six months, and, therefore, those convictions were properly classified as misdemeanors. State v. Armstrong, 203 N.C. App. 399, 691 S.E.2d 433, 2010 N.C. App. LEXIS 653 (2010).

Transmitting Unsigned Threatening Letter. —

The misdemeanor of transmitting an unsigned threatening letter in violation of G.S. 14-394 does not fall within any of the classes of misdemeanors made felonious by subsection (b) of this section. State v. Glidden, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

Attempted Kidnapping. —

To elevate the misdemeanor offense of attempted second degree kidnapping to a Class H felony under subsection (b), the indictment must specifically state that the offense was infamous, or done in secrecy and malice, or done with deceit and intent to defraud. State v. Bell, 121 N.C. App. 700, 468 S.E.2d 484, 1996 N.C. App. LEXIS 135 (1996), cert. denied, 483 S.E.2d 180, 1997 N.C. LEXIS 90 (N.C. 1997).

Criminal Contempt. —

Trial court, upon finding defendant in direct criminal contempt on six occasions, did not err in sentencing defendant to six consecutive thirty-day terms of imprisonment because a finding of contempt was not a Class 3 misdemeanor. State v. Burrow, 248 N.C. App. 663, 789 S.E.2d 923, 2016 N.C. App. LEXIS 810 (2016).

Obstruction of Justice. —

Record contained sufficient evidence that defendant acted with deceit and intent to defraud to support her conviction for felonious obstruction of justice, given her extensive efforts to protect her husband before and even after defendant’s discovery that her child’s accusations of sexual abuse were true; defendant continued her obstructive conduct after being shown inappropriate e-mails that her husband had sent to the child and even after witnessing an act of abuse, due to her motivation to preserve the family structure that benefitted her. State v. Ditenhafer, 376 N.C. 846 , 855 S.E.2d 162, 2021- NCSC-19, 2021 N.C. LEXIS 170 (2021).

§ 14-3.1. Infraction defined; sanctions.

  1. An infraction is a noncriminal violation of law not punishable by imprisonment. Unless otherwise provided by law, the sanction for a person found responsible for an infraction is a penalty of not more than one hundred dollars ($100.00). The proceeds of penalties for infractions are payable to the county in which the infraction occurred for the use of the public schools.
  2. The procedure for disposition of infractions is as provided in Article 66 of Chapter 15A of the General Statutes.

History. 1985, c. 764, s. 1; 1985 (Reg. Sess., 1986), c. 852, s. 17.

§ 14-4. Violation of local ordinances misdemeanor.

  1. Except as provided in subsection (b) or (c) of this section, if any person shall violate an ordinance of a county, city, town, or metropolitan sewerage district created under Article 5 of Chapter 162A, he shall be guilty of a Class 3 misdemeanor and shall be fined not more than five hundred dollars ($500.00). No fine shall exceed fifty dollars ($50.00) unless the ordinance expressly states that the maximum fine is greater than fifty dollars ($50.00).
  2. If any person shall violate an ordinance of a county, city, or town regulating the operation or parking of vehicles, he shall be responsible for an infraction and shall be required to pay a penalty of not more than fifty dollars ($50.00).
  3. A person may not be found responsible or guilty of a local ordinance violation punishable pursuant to subsection (a) of this section if, when tried for that violation, the person produces proof of compliance with the local ordinance through any of the following:
    1. No new alleged violations of the local ordinance within 30 days from the date of the initial alleged violation.
    2. The person provides proof of a good-faith effort to seek assistance to address any underlying factors related to unemployment, homelessness, mental health, or substance abuse that might relate to the person’s ability to comply with the local ordinance.

History. 1871-2, c. 195, s. 2; Code, s. 3820; Rev., s. 3702; C.S., s. 4174; 1969, c. 36, s. 2; 1985, c. 764, s. 2; 1985 (Reg. Sess., 1986), c. 852, s. 17; 1991, c. 415, s. 1; c. 446, s. 1; 1993, c. 538, s. 8; c. 539, s. 9; 1994, Ex. Sess., c. 24, ss. 14(b), 14(c); 1995, c. 509, s. 133.1; 2021-138, s. 13(c).

Local Modification.

Jacksonville: 1979, c. 511; Mecklenburg: 1983, c. 118; Onslow: 1979, c. 511, s. 2; 1991, c. 245; city of Greensboro: 1987, c. 772; town of North Topsail Beach: 1979, c. 511, s. 2; 1991, c. 245.

Editor’s Note.

Session Laws 2018-69, s. 1, as amended by Session Laws 2019-198, s. 3, provides: “All State agencies, boards, and commissions that have the power to define conduct as a crime in the North Carolina Administrative Code shall create a list of all crimes defined by the agency, board, or commission that are in effect or pending implementation. Each agency, board, or commission shall submit the list to the Joint Legislative Administrative Procedure Oversight Committee no later than November 1, 2019.”

Session Laws 2018-69, s. 3, as amended by Session Laws 2019-198, s. 4, provides: “Every county with a population of 20,000 or more according to the last federal decennial census, city or town with a population of 1,000 or more according to the last federal decennial census, or metropolitan sewerage district that has enacted an ordinance punishable pursuant to G.S. 14-4(a) shall create a list of applicable ordinances with a description of the conduct subject to criminal punishment in each ordinance. Each county, city, town, or metropolitan sewerage district shall submit the list to the Joint Legislative Administrative Procedure Oversight Committee November 1, 2019.”

Session Laws 2019-198, s. 5, provides: “No ordinance adopted on or after January 1, 2020, and before January 1, 2022, by a county, city, or town that was required to report pursuant to Section 3 of S.L. 2018-69, as amended by Section 4 of this act, shall be subject to the criminal penalty provided by G.S. 14-4 unless that county, city, or town submitted the required report on or before November 1, 2019. Ordinances regulated by this section may still be subject to civil penalties as authorized by G.S. 153A-123 or G.S. 160A-175 .”

Session Laws 2021-138, s. 13(d), made the amendments to this section by Session Laws 2021-138, s. 13(c), effective December 1, 2021, and applicable to offenses and violations committed on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Effect of Amendments.

Session Laws 2021-138, s. 13(c), substituted “(b) or (c) of this section” for “(b)” in subsection (a); and added subsection (c). For effective date and applicability, see editor’s note.

Legal Periodicals.

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

CASE NOTES

In General. —

While the town or city government has no right to make criminal law, the legislature has made the violation of ordinances a criminal offense. Board of Educ. v. Town of Henderson, 126 N.C. 689 , 36 S.E. 158, 1900 N.C. LEXIS 297 (1900); State v. Higgs, 126 N.C. 1014 , 35 S.E. 473, 1900 N.C. LEXIS 353 (1900); State v. Barrett, 243 N.C. 686 , 91 S.E.2d 917, 1956 N.C. LEXIS 605 (1956).

Section makes violation of a municipal ordinance a criminal offense. Walker v. City of Charlotte, 262 N.C. 697 , 138 S.E.2d 501, 1964 N.C. LEXIS 728 (1964).

The violation of a valid municipal ordinance is a misdemeanor. Frosty Ice Cream, Inc. v. Hord, 263 N.C. 43 , 138 S.E.2d 816, 1964 N.C. LEXIS 769 (1964).

The legislature in enacting this section made criminal what would otherwise be civil penalties for violations of ordinances. Cauble v. City of Asheville, 301 N.C. 340 , 271 S.E.2d 258, 1980 N.C. LEXIS 1167 (1980).

Because the summons delivered to defendant listed the statute as statutory basis for the charge against defendant, it correctly identified the crime with which he was charged; the summons indicated that the charge was based on defendant’s failure to remove all metal items from the yard, indicating to defendant the proper city ordinance subsection of which he was in violation., and defendant had sufficient notice of the charge against him. State v. Hales, 2022-NCCOA-134, 870 S.E.2d 629, 2022- NCCOA-134, 2022 N.C. App. LEXIS 138 (N.C. Ct. App.), writ denied, dismissed, 869 S.E.2d 323, 2022 N.C. LEXIS 309 (N.C. 2022).

Prior to Section Violation Not Punishable. —

Prior to the passage of this section there was no way provided for the enforcement of obedience to town ordinances; a violation of such ordinances was not a misdemeanor. State v. Parker, 75 N.C. 249 , 1876 N.C. LEXIS 264 (1876); School Dirs. v. City of Asheville, 137 N.C. 503 , 50 S.E. 279, 1905 N.C. LEXIS 200 (1905).

Jurisdiction. —

The superior court has no original jurisdiction to try indictments for violation of town ordinances. State v. White, 76 N.C. 15 , 1877 N.C. LEXIS 151 (1877); State v. Threadgill, 76 N.C. 17 , 1877 N.C. LEXIS 152 (1877).

Costs of Prosecutions. —

The criminal offenses created by the violation of town ordinances under this section are State prosecutions, in the name of the State, or for violation of the criminal law of the State, and at the expense of the State (State v. Higgs, 126 N.C. 1014 , 35 S.E. 473 (1900), overruled on other grounds, Small v. Councilmen of Edenton, 146 N.C. 527 , 60 S.E. 413 (1908), and the city cannot be charged with the costs of such prosecutions. Board of Educ. v. Town of Henderson, 126 N.C. 689 , 36 S.E. 158, 1900 N.C. LEXIS 297 (1900).

Ordinance Must Conform to State Law. —

It is uniformly held that a town ordinance in violation of a valid State statute appertaining to the question is void. Shaw v. Kennedy, 4 N.C. 591 , 1817 N.C. LEXIS 67 (1817); State v. Austin, 114 N.C. 855 , 19 S.E. 919, 1894 N.C. LEXIS 160 (1894); State v. Beacham, 125 N.C. 652 , 34 S.E. 447, 1899 N.C. LEXIS 280 (1899); State v. Prevo, 178 N.C. 740 , 101 S.E. 370, 1919 N.C. LEXIS 550 (1919).

Violation of an Invalid Ordinance Is No Offense. —

The violation of a valid ordinance is, under the provision of this section, a misdemeanor, but it is not a criminal offense to disregard one enacted without authority. State v. Hunter, 106 N.C. 796 , 11 S.E. 366, 1890 N.C. LEXIS 386 (1890); State v. Webber, 107 N.C. 962 , 12 S.E. 598, 1890 N.C. LEXIS 180 (1890).

Acting contrary to the provisions of a municipal ordinance is made a misdemeanor by this section. Notwithstanding the all-inclusive language of the statute, guilt must rest on the violation of a valid ordinance. If the ordinance is not valid, there can be no guilt. State v. McGraw, 249 N.C. 205 , 105 S.E.2d 659, 1958 N.C. LEXIS 455 (1958).

Same — Burden on State. —

Where the State failed to show that the original act of incorporation authorized the enactment of an ordinance, it failed to make out the case, for the legislature never intended to make the violation of a void ordinance an indictable misdemeanor. State v. Threadgill, 76 N.C. 17 , 1877 N.C. LEXIS 152 (1877).

Upon the prosecution of a criminal action for the violation of a city ordinance under this section the State must show that the ordinance in question was a valid one, as well as the violation as charged in the warrant. State v. Hunter, 106 N.C. 796 , 11 S.E. 366, 1890 N.C. LEXIS 386 (1890); State v. Snipes, 161 N.C. 242 , 76 S.E. 243, 1912 N.C. LEXIS 407 (1912); State v. Prevo, 178 N.C. 740 , 101 S.E. 370, 1919 N.C. LEXIS 550 (1919).

Failure to Prescribe Penalty. —

The violation of a valid town ordinance is made a misdemeanor by this section, and the defense that the ordinance did not prescribe a penalty therefor is untenable. State v. Razook, 179 N.C. 708 , 103 S.E. 67, 1920 N.C. LEXIS 334 (1920).

Where Fine Is Provided It Must Be Certain. —

An ordinance which imposes a fine is invalid if it is not certain as to the amount of the fine. State v. Irvin, 126 N.C. 989 , 35 S.E. 430, 1900 N.C. LEXIS 348 (1900).

Provision for Arrest Void. —

When a municipal ordinance imposed a penalty for its violation, and provided that the offender should be “arrested and fined $25.00 upon conviction thereof,” it was held that so much of the ordinance as provided for the arrest was void, but the other provisions were valid. State v. Earnhardt, 107 N.C. 789 , 12 S.E. 426, 1890 N.C. LEXIS 140 (1890).

Conviction for Fighting Held No Bar to Prosecution for Assault. —

A conviction of violating a city ordinance punishing the disturbance of the good order and quiet of the town by fighting was not a bar to a prosecution by the State for an assault. State v. Taylor, 133 N.C. 755 , 46 S.E. 5, 1903 N.C. LEXIS 126 (1903).

Personal Notice to Offender Sufficient. —

The requirement of the charter of a city or town that its ordinances shall be printed and published, was to bring such ordinances to the attention of the public, and where personal notice was given to an offender thereunder who afterwards committed the offense prohibited, the requirement of publication, etc., was not necessary for a conviction. State v. Razook, 179 N.C. 708 , 103 S.E. 67, 1920 N.C. LEXIS 334 (1920).

Defects in Warrant May Be Waived. —

Ordinarily defects in the form of a warrant for violating a city ordinance may be waived, and usually it is so considered when a plea of not guilty is entered by the defendants. State v. Prevo, 178 N.C. 740 , 101 S.E. 370, 1919 N.C. LEXIS 550 (1919).

Form of Indictment. —

It is not necessary, in indictments for violations of city ordinances, to set out the ordinance in the warrant. It is sufficient to refer to it by such indicia, as point it out with sufficient certainty. State v. Merritt, 83 N.C. 677 , 1880 N.C. LEXIS 154 (1880); State v. Cainan, 94 N.C. 880 , 1886 N.C. LEXIS 159 (1886).

In an indictment under an ordinance for loud and boisterous swearing, it is not necessary to set out the words used by the defendant. State v. Cainan, 94 N.C. 880 , 1886 N.C. LEXIS 159 (1886).

Fines Used to Maintain Public Schools. —

All the fines collected upon prosecutions for violations of the criminal laws of the State, whether for violations of ordinances made criminal by this section, or by other criminal statutes belong to the common school fund of the county; they are thus appropriated by the North Carolina Constitution, and cannot be diverted or withheld from this fund without violating the State Constitution. Cauble v. City of Asheville, 301 N.C. 340 , 271 S.E.2d 258, 1980 N.C. LEXIS 1167 (1980).

Same — Parking Violations. —

Moneys voluntarily paid by motorists to a city upon citations for violations of a city overtime parking ordinance constitute a penalty or fine collected for breach of a State penal law and should be used exclusively for maintaining free public schools in the county pursuant to N.C. Const., Art. IX, § 7, since violation of a city ordinance is also a violation of this section, which makes the violation of a local ordinance a misdemeanor. Cauble v. City of Asheville, 301 N.C. 340 , 271 S.E.2d 258, 1980 N.C. LEXIS 1167 (1980).

Sentence. —

Because the judgment for a person convicted of a Class 3 misdemeanor who had no more than three prior convictions could consist only of a fine, the trial court erred by sentencing defendant to a 15-day term of incarceration and 18 months’ probation; the trial court found defendant had one prior conviction of violating the statute. State v. Hales, 2022-NCCOA-134, 870 S.E.2d 629, 2022- NCCOA-134, 2022 N.C. App. LEXIS 138 (N.C. Ct. App.), writ denied, dismissed, 869 S.E.2d 323, 2022 N.C. LEXIS 309 (N.C. 2022).

Fine. —

Because the city ordinance defendant violated did not expressly state that the maximum fine for a violation of the ordinance was greater than $50, the maximum fine for defendant’s violation of the statute was $50; the trial court thus erred by imposing a $100 fine. State v. Hales, 2022-NCCOA-134, 870 S.E.2d 629, 2022- NCCOA-134, 2022 N.C. App. LEXIS 138 (N.C. Ct. App.), writ denied, dismissed, 869 S.E.2d 323, 2022 N.C. LEXIS 309 (N.C. 2022).

§ 14-4.1. Legislative review of regulatory crimes.

  1. Any rule adopted or amended pursuant to Article 2A of Chapter 150B of the General Statutes that creates a new criminal offense or otherwise subjects a person to criminal penalties is subject to G.S. 150B-21.3(b1) regardless of whether the rule received written objections from 10 or more persons pursuant to G.S. 150B-21.3(b2).
  2. This section applies to rules adopted on or after January 1, 2020.

History. 2019-198, s. 1.

Editor’s Note.

Session Laws 2019-198, s. 8, made this section, as added by Session Laws 2019-198, s. 1, effective August 14, 2019.

Article 2. Principals and Accessories.

§§ 14-5, 14-5.1. [Repealed]

Repealed by Session Laws 1981, c. 686, s. 2.

Cross References.

For present provisions as to punishment of accessories before the fact, see G.S. 14-5.2 .

§ 14-5.2. Accessory before fact punishable as principal felon.

All distinctions between accessories before the fact and principals to the commission of a felony are abolished. Every person who heretofore would have been guilty as an accessory before the fact to any felony shall be guilty and punishable as a principal to that felony. However, if a person who heretofore would have been guilty and punishable as an accessory before the fact is convicted of a capital felony, and the jury finds that his conviction was based solely on the uncorroborated testimony of one or more principals, coconspirators, or accessories to the crime, he shall be guilty of a Class B2 felony.

History. 1981, c. 686, s. 1; 1994, Ex. Sess., c. 22, s. 6.

Legal Periodicals.

For note on presence as a factor in aiding and abetting, see 35 N.C.L. Rev. 284 (1957).

For survey of 1980 criminal law in general, see 59 N.C.L. Rev. 1123 (1981).

For comment clarifying the law of parties in North Carolina by punishing accessories before the fact as principals, see 17 Wake Forest L. Rev. 599 (1981).

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Most of the cases below were decided under former G.S. 14-5 and prior statutory provisions.

Legislative Intent. —

The North Carolina legislature abolished all distinctions between accessories before the fact and principals in the commission of felonies by enacting this section. State v. Bond, 345 N.C. 1 , 478 S.E.2d 163, 1996 N.C. LEXIS 659 (1996), cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022, 1997 U.S. LEXIS 4140 (1997).

Underlying Principle. —

It is a well-established principle that where two agree to do an unlawful act, each is responsible for the act of the other, provided it be done in pursuance of the original understanding, or in furtherance of the common purpose. State v. Simmons, 51 N.C. 21 , 1858 N.C. LEXIS 92 (1858).

What Constitutes One a Party to an Offense. —

A person is a party to an offense if he either actually commits the offense or does some act which forms a part thereof, or if he assists in the actual commission of the offense or of any act which forms part thereof, or directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part thereof. To constitute one a party to an offense it has been held to be essential that he be concerned in its commission in some affirmative manner, as by actual commission of the crime or by aiding and abetting in its commission and it has been regarded as a general proposition that no one can be properly convicted of a crime to the commission of which he has never expressly or impliedly given his assent. State v. Spears, 268 N.C. 303 , 150 S.E.2d 499, 1966 N.C. LEXIS 1192 (1966).

History of Offense at Common Law. —

Accessory before the fact was a common-law offense. State v. Sauls, 29 N.C. App. 457, 224 S.E.2d 702, 1976 N.C. App. LEXIS 2540 , rev'd, 291 N.C. 253 , 230 S.E.2d 390, 1976 N.C. LEXIS 970 (1976).

At common law an accessory before the fact could only be convicted when tried at the same time with the principal, and after conviction of the principal, or after the principal had been tried, convicted and sentenced. State v. Duncan, 28 N.C. 98 , 1845 N.C. LEXIS 30 (1845); State v. Jones, 101 N.C. 719 , 8 S.E. 147, 1888 N.C. LEXIS 129 (1888).

At common law an accessory before the fact could only be convicted when tried at the same time as the principal, or after trial and conviction of the principal. State v. Jones, 101 N.C. 719 , 8 S.E. 147, 1888 N.C. LEXIS 129 (1888).

In enacting G.S. 14-5 , North Carolina recognized accessory before the fact as a substantive felony, making it no longer necessary to first convict the principal in order to convict an accessory. State v. Partlow, 272 N.C. 60 , 157 S.E.2d 688, 1967 N.C. LEXIS 966 (1967); State v. Philyaw, 291 N.C. 312 , 230 S.E.2d 370, 1976 N.C. LEXIS 976 (1976) (decided under provisions of former G.S. 14-5 ).

But the rule that an accessory could not be tried and convicted before the principal had no application as between two principals in first and second degrees. Shepard v. Railroad, 140 N.C. 391 , 53 S.E. 137, 1906 N.C. LEXIS 8 (1906).

At common law, one who encouraged or aided another in committing a crime, but who was not himself present at the commission of the crime, was classified as an accessory before the fact, a separate offense. State v. Walden, 75 N.C. App. 79, 330 S.E.2d 271, 1985 N.C. App. LEXIS 3587 (1985).

An Accessory Is Guilty of Natural or Probable Consequences. —

An accessory is guilty of any other crimes committed by the principal which are the natural or probable consequence of the common purpose. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275, 1988 N.C. App. LEXIS 638 (1988).

Accessories before the fact, who do not actually commit the crime, and may not have been present, can be convicted of first-degree murder under a theory of aiding and abetting. State v. Bond, 345 N.C. 1 , 478 S.E.2d 163, 1996 N.C. LEXIS 659 (1996), cert. denied, 521 U.S. 1124, 117 S. Ct. 2521, 138 L. Ed. 2d 1022, 1997 U.S. LEXIS 4140 (1997).

Cases Under Former G.S. 14-5 , 14-5.1, and 14-6 Still Applicable. —

The language of this section indicates that the essential elements of the offense have not changed. The legislature merely abolished the difference in guilt and sentencing treatment between the principal to the felony and an accessory in repealing G.S. 14-5 , 14-5.1 and 14-6 and replacing them with this section. Therefore, cases decided under the repealed statutes delineating the essential elements of accessory before the fact of felony are applicable to cases brought under the new statute. State v. Woods, 307 N.C. 213 , 297 S.E.2d 574, 1982 N.C. LEXIS 1673 (1982).

Cases decided before the enactment of this section delineating the essential elements of accessory before the fact of felony are applicable to cases brought under this section. State v. Walden, 75 N.C. App. 79, 330 S.E.2d 271, 1985 N.C. App. LEXIS 3587 (1985).

First Degree Murder Is Capital Felony. —

Defendant was convicted of a capital felony under G.S. 14-5.2 and G.S. 14-17 because she was convicted of first-degree murder; State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364, 2012 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696 , 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

Establishing Theory of Acting in Concert. —

Under the circumstances of this case, where victim was murdered in her own home, evidence of an unidentified latent fingerprint in addition to those of defendant supported the jury instruction concerning the theory of acting in concert. State v. Smart, 99 N.C. App. 730, 394 S.E.2d 475, 1990 N.C. App. LEXIS 829 (1990).

Acquittal of the named principal on charges of first-degree murder required, as a matter of law, that defendant’s plea of guilty to accessory before the fact to second-degree murder be set aside; this rule prevailed whether the defendant, prior to the acquittal of the principal, has been tried and found guilty of a felony on the theory that he was an accessory before the fact, or has pled guilty to being an accessory before the fact to the felony. State v. Suites, 109 N.C. App. 373, 427 S.E.2d 318, 1993 N.C. App. LEXIS 276 (1993).

Fair Sentencing Act. —

Although the principal provisions of the Fair Sentencing Act are codified in Chapter 15A, Article 81A, the act resulted in revisions to other portions of the General Statutes. See e.g., Chapter 14, Articles 1, 2, 2A, 33; Chapter 15A, Articles 58, 81A, 82, 83, 85, 85A, 89, 91; Chapter 148, Article 2, and Chapter 162, Article 4. State v. Ahearn, 307 N.C. 584 , 300 S.E.2d 689, 1983 N.C. LEXIS 1120 (1983).

For discussion of the historical background, policies, purposes, and implementation of the new Fair Sentencing Act, see State v. Ahearn, 307 N.C. 584 , 300 S.E.2d 689, 1983 N.C. LEXIS 1120 (1983).

II.Elements of the Offense

Who Is Accessory Before the Fact. —

An accessory before the fact is one who was absent from the scene when the crime was committed but who procured, counseled, commanded or encouraged the principal to commit it. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970); State v. Wiggins, 16 N.C. App. 527, 192 S.E.2d 680, 1972 N.C. App. LEXIS 1752 (1972); State v. Squire, 292 N.C. 494 , 234 S.E.2d 563, 1977 N.C. LEXIS 1134 , cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977).

An accessory before the fact is one who furnishes the means to carry on the crime, whose acts bring about the crime through the agency of or in connection with the perpetrators, who is a confederate, who instigates a crime. State v. Sauls, 29 N.C. App. 457, 224 S.E.2d 702, 1976 N.C. App. LEXIS 2540 , rev'd, 291 N.C. 253 , 230 S.E.2d 390, 1976 N.C. LEXIS 970 (1976).

For a defendant, not actually or constructively present at the scene, to be criminally responsible for the acts of others as an accessory before the fact, it must be shown that he counseled, or procured, or commanded the others to perpetrate the crime. State v. Sauls, 29 N.C. App. 457, 224 S.E.2d 702, 1976 N.C. App. LEXIS 2540 , rev'd, 291 N.C. 253 , 230 S.E.2d 390, 1976 N.C. LEXIS 970 (1976).

To render one guilty as an accessory before the fact, he must have had the requisite criminal intent; and it has been said that he must have the same intent as the principal. It is well settled, however, that he need not necessarily have intended the particular crime committed by the principal; an accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised or commanded. State v. Hewitt, 33 N.C. App. 168, 234 S.E.2d 468, 1977 N.C. App. LEXIS 2120 (1977).

An accessory before the fact is one who procures, counsels, commands or encourages the principal to commit a crime. State v. Furr, 292 N.C. 711 , 235 S.E.2d 193, 1977 N.C. LEXIS 1172 , cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (1977).

In this State, one who procures another to commit murder is an accessory before the fact to murder. State v. Furr, 292 N.C. 711 , 235 S.E.2d 193, 1977 N.C. LEXIS 1172 , cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (1977).

Under this section a defendant not actually or constructively present at the scene is guilty and punishable as a principal if it be shown that he counseled or procured or commanded the others to perpetrate the crime. State v. Bradley, 67 N.C. App. 81, 312 S.E.2d 519, 1984 N.C. App. LEXIS 2994 (1984).

To convict a defendant on the theory of being an accessory before the fact, the State must also show that the principal committed the crime. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275, 1988 N.C. App. LEXIS 638 (1988).

To convict a defendant on the theory of being an accessory before the fact, the State must also show that the principal committed the crime. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275, 1988 N.C. App. LEXIS 638 (1988).

An accessory before the fact is one who is absent from the scene when the crime was committed but who procured, counselled, commanded or encouraged the principal to commit it. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275, 1988 N.C. App. LEXIS 638 (1988).

In order to convict defendant for murder in the first degree as an accessory before the fact, the State must prove beyond a reasonable doubt that (1) the principal committed murder in the first degree; (2) defendant was not present when the murder occurred; and (3) defendant procured, counseled or commanded murderer to commit the crime. State v. Arnold, 329 N.C. 128 , 404 S.E.2d 822, 1991 N.C. LEXIS 405 (1991).

The essential elements of accessory before the fact to murder are (i) the defendant must have counseled, procured, commanded, encouraged, or aided the principal in the commission of the murder; (ii) the principal must have committed the murder; and (iii) the defendant must not have been present when the murder was committed. State v. Westbrooks, 345 N.C. 43 , 478 S.E.2d 483, 1996 N.C. LEXIS 648 (1996).

Solicitation to commit murder is a lesser included offense of murder as an accessory before the fact. State v. Westbrooks, 345 N.C. 43 , 478 S.E.2d 483, 1996 N.C. LEXIS 648 (1996).

The concept of accessory before the fact has been held to presuppose some arrangement with respect to the commission of the crime in question. State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555, 1974 N.C. App. LEXIS 1962 (1974), cert. denied, 287 N.C. 261 , 214 S.E.2d 434, 1975 N.C. LEXIS 1104 (1975).

There May Be Accessories Before the Fact to Murder in Both Degrees. —

Since malice, express or implied, is a constituent element of murder in any degree, there may be accessories before the fact to the crime of murder in both degrees. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Admittedly the concept of accessory before the fact presupposes some arrangement between the accessory and the principal with respect to the commission of the crime. It does not follow, however, that there can be no accessory before the fact to second-degree murder, which imports a specific intent to do an unlawful act. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

There may, of course, be accessories before the fact in all kinds of murder with deliberation, or premeditation, or malice aforethought, including murder in the second degree, which involves malice. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Intent May Be Inferred. —

The intent to aid or the showing of a felonious purpose may be inferred from the defendant’s actions and his relation to the perpetrators. There need be no express words communicating the intent to aid or indicating that defendant shared a felonious purpose. State v. Pryor, 59 N.C. App. 1, 295 S.E.2d 610, 1982 N.C. App. LEXIS 2864 (1982).

Elements of crime of being accessory after the fact are separate and distinct from those involved in crimes of being principal or accessory before the fact. State v. Cabey, 307 N.C. 496 , 299 S.E.2d 194, 1983 N.C. LEXIS 1100 (1983).

Conspiracy and accessory before the fact are separate crimes which do not merge, because accessory before the fact requires actual commission of the contemplated felony, while conspiracy does not, and conspiracy requires an agreement while an accessory need not agree to anything. State v. Fie, 80 N.C. App. 577, 343 S.E.2d 248, 1986 N.C. App. LEXIS 2248 (1986), rev'd, 320 N.C. 626 , 359 S.E.2d 774, 1987 N.C. LEXIS 2328 (1987).

Conviction for Conspiracy to Commit Murder Did Not Merge into Conviction for Murder by Acting in Concert. —

Defendant’s conviction for conspiracy to commit murder did not merge into her conviction for murder by acting in concert as the requirement of an agreement, while necessary to sustain a conviction for conspiracy, was not a necessary element for murder by acting in concert. State v. Kemmerlin, 356 N.C. 446 , 573 S.E.2d 870, 2002 N.C. LEXIS 1260 (2002).

Actual or constructive presence is no longer required to prove a crime under an aiding and abetting theory. State v. Gaines, 345 N.C. 647 , 483 S.E.2d 396, 1997 N.C. LEXIS 181 , cert. denied, 522 U.S. 900, 118 S. Ct. 248, 139 L. Ed. 2d 177, 1997 U.S. LEXIS 5901 (1997).

What Must Be Proven. —

The elements necessary to be proved in order to sustain a conviction for accessory before the fact were: (1) that defendant counseled, procured or commanded the principal to commit the offense; (2) that defendant was not present when the principal committed the offense; and (3) that the principal committed the offense. State v. Hunter, 290 N.C. 556 , 227 S.E.2d 535, 1976 N.C. LEXIS 1121 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539, 1977 U.S. LEXIS 673 (1977); State v. Philyaw, 291 N.C. 312 , 230 S.E.2d 370, 1976 N.C. LEXIS 976 (1976); State v. Sauls, 291 N.C. 253 , 230 S.E.2d 390, 1976 N.C. LEXIS 970 (1976), cert. denied, 431 U.S. 916, 97 S. Ct. 2178, 53 L. Ed. 2d 226, 1977 U.S. LEXIS 1788 (1977); State v. Saults, 294 N.C. 722 , 242 S.E.2d 801, 1978 N.C. LEXIS 1300 (1978); State v. Woods, 307 N.C. 213 , 297 S.E.2d 574, 1982 N.C. LEXIS 1673 (1982).

There were several things that must have concurred in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them to commit the offense. (2) That he was not present when the offense was committed. (3) That the principal committed the crime. State v. Bass, 255 N.C. 42 , 120 S.E.2d 580, 1961 N.C. LEXIS 567 (1961); State v. Benton, 275 N.C. 378 , 167 S.E.2d 775, 1969 N.C. LEXIS 408 (1969); State v. Chavis, 24 N.C. App. 148, 210 S.E.2d 555, 1974 N.C. App. LEXIS 1962 (1974), cert. denied, 287 N.C. 261 , 214 S.E.2d 434, 1975 N.C. LEXIS 1104 (1975); State v. Branch, 288 N.C. 514 , 220 S.E.2d 495, 1975 N.C. LEXIS 1030 (1975), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091, 1977 U.S. LEXIS 2580 (1977).

Causation of a crime by an alleged accessory is not “inherent” in the accessory’s counsel, procurement, command or aid of the principal perpetrator. State v. Davis, 319 N.C. 620 , 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987) (disavowing statement to the contrary in) State v. Hunter, 290 N.C. 556 , 227 S.E.2d 535, 1976 N.C. LEXIS 1121 (1976).

The elements of accessory before the fact to murder are as follows: (1) Defendant must have counseled, procured, commanded, encouraged, or aided the principal to murder the victim; (2) the principal must have murdered the victim; and (3) defendant must not have been present when the murder was committed. State v. Davis, 319 N.C. 620 , 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987).

What Constitutes Counseling, Procuring and Commanding. —

At a meeting of a board of commissioners of a town, at which the mayor presided, a report of the cemetery committee was adopted recommending that unless parties, who had taken lots in the town cemetery and had not paid for them, should pay the amount due within 60 days on notice, the bodies buried in such lots should be removed to the free part of such cemetery. In reply to a question of one of the commissioners as to the legal right to remove the bodies, the mayor said: “The way is open, go ahead and remove them.” It was held, therefore, that the mayor was individually guilty of counseling, procuring and commanding an act within the meaning of former G.S. 14-5 , making accessory before the fact a substantive crime. State v. McLean, 121 N.C. 589 , 28 S.E. 140, 1897 N.C. LEXIS 287 (1897).

The term “counsel” as used in former G.S. 14-5 describes the offense of a person who, not actually doing the felonious act, by his will contributed to it or procured it to be done. State v. Hewitt, 33 N.C. App. 168, 234 S.E.2d 468, 1977 N.C. App. LEXIS 2120 (1977).

The meaning of the word “command,” as applied to the case of principal and accessory is, where a person, having control over another, as a master over his servant, orders a thing to be done. State v. Mann, 2 N.C. 4 , 1791 N.C. LEXIS 18 (1791).

What Must Be Proven — Murder. —

In cases where a defendant is prosecuted as an accessory before the fact to murder, the State must prove beyond a reasonable doubt that the actions or statements of the defendant somehow caused or contributed to the actions of the principal, which in turn caused the victim’s death. State v. Davis, 319 N.C. 620 , 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987).

The elements of accessory before the fact to murder are as follows: (1) Defendant must have counseled, procured, commanded, encouraged, or aided the principal to murder the victim; (2) the principal must have murdered the victim; and (3) defendant must not have been present when the murder was committed. State v. Davis, 319 N.C. 620 , 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987).

When Defendant Is “Present”. —

In order to determine whether a defendant is present, the court must determine whether “he is near enough to render assistance if need be and to encourage the actual perpetration of the felony.” State v. Glaze, 37 N.C. App. 155, 245 S.E.2d 575, 1978 N.C. App. LEXIS 2673 (1978).

Constructive Presence. —

The actual distance of a person from the place where a crime is perpetrated is not always material in determining whether the person is constructively present. A person is deemed to be constructively present if he is near enough to render assistance if need be and to encourage the actual perpetration of the felony. State v. Wiggins, 16 N.C. App. 527, 192 S.E.2d 680, 1972 N.C. App. LEXIS 1752 (1972).

Evidence tending to show that defendant drove the automobile that carried men to a store, that to the knowledge of defendant the men entered the store, armed, that defendant stayed with the car, that later they were together when police stopped them and that defendant told police where they could find the stolen money, was sufficient to support an inference that defendant was constructively present at the time of the robbery. State v. Torain, 20 N.C. App. 69, 200 S.E.2d 665, 1973 N.C. App. LEXIS 1473 (1973), cert. denied, 284 N.C. 622 , 202 S.E.2d 278, 1974 N.C. LEXIS 1327 (1974).

The actual distance of a person from the place where a crime is perpetrated is not always material in determining whether the person is constructively present. A guard who has been posted to give warning or the driver of a “get-away” car may be constructively present at the scene of a crime although stationed a convenient distance away. State v. Pryor, 59 N.C. App. 1, 295 S.E.2d 610, 1982 N.C. App. LEXIS 2864 (1982).

Remaining in Vicinity of Offense. —

A person may be guilty as an aider and abettor if that person accompanies the actual perpetrator to the vicinity of the offense and, with the knowledge of the actual perpetrator, remains in that vicinity for the purpose of aiding and abetting in the offense and sufficiently close to the scene of the offense to render aid in its commission, if needed, or to provide a means by which the actual perpetrator may get away from the scene upon the completion of the offense. State v. Pryor, 59 N.C. App. 1, 295 S.E.2d 610, 1982 N.C. App. LEXIS 2864 (1982).

Larceny conviction was valid where the evidence showed that defendant procured the commission of the larceny, because the distinction that formerly existed between principals and accessories before the fact has been abolished. State v. Cartwright, 81 N.C. App. 144, 343 S.E.2d 557, 1986 N.C. App. LEXIS 2275 (1986).

Where the idea of stealing from victim came from defendant who told the principals that he wanted tools, that victim’s shop and mobile home were always left unlocked and that the keys were in victim’s car and truck, there was sufficient evidence to find the defendant guilty of accessory before the fact to first-degree burglary, accessory to the fact to felonious entering, and accessory before the fact to felonious larceny. State v. Marr, 342 N.C. 607 , 467 S.E.2d 236, 1996 N.C. LEXIS 25 (1996).

Evidence of Procuring and Participating Sufficient to Deny Motion to Dismiss. —

Where defendant took the principals to a dwelling at night, armed them and told them to “rough up” the inhabitants, the trial court did not err in denying defendant’s motion to dismiss or to set aside his conviction of first-degree burglary on grounds that he neither procured nor participated in breaking and entering. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275, 1988 N.C. App. LEXIS 638 (1988).

Trafficking. —

Defendants may be convicted of the substantive offense of trafficking in cocaine if they were accessories before the fact. State v. Agudelo, 89 N.C. App. 640, 366 S.E.2d 921, 1988 N.C. App. LEXIS 363 (1988).

III.Practice and Procedure
A.In General

Jurisdiction Where Accessorial Acts Occur Outside State. —

This State may constitutionally assert jurisdiction over a defendant who commits the crime of accessory before the fact to a felony committed within the State when the counselling, procuring or commanding took place without the State. State v. Darroch, 305 N.C. 196 , 287 S.E.2d 856, 1982 N.C. LEXIS 1259 , cert. denied, 457 U.S. 1138, 102 S. Ct. 2969, 73 L. Ed. 2d 1356, 1982 U.S. LEXIS 2729 (1982).

Prior Conviction of Principals Unnecessary. —

Under the provisions of former G.S. 14-5 it was not required that the principals be first convicted of the charge of murder to convict the accessories thereto, either before or after the fact, upon sufficient evidence. State v. Jones, 101 N.C. 719 , 8 S.E. 147, 1888 N.C. LEXIS 129 (1888); State v. Walton, 186 N.C. 485 , 119 S.E. 886, 1923 N.C. LEXIS 279 (1923).

It is not necessary to first convict principals in order to convict an accessory to a crime. State v. Partlow, 272 N.C. 60 , 157 S.E.2d 688, 1967 N.C. LEXIS 966 (1967).

But Guilt of Principal Must Be Established Beyond Reasonable Doubt. —

In order to warrant the conviction of an accessory, the guilt of the principal must be established to the same degree of certainty as if he himself were on trial, that is, beyond a reasonable doubt. State v. Benton, 275 N.C. 378 , 167 S.E.2d 775, 1969 N.C. LEXIS 408 (1969).

No Conviction of Accessory Where Principal Is Acquitted. —

Former G.S. 14-5 did not change the common-law rule that an acquittal of the principal was an acquittal of the accessory. State v. Jones, 101 N.C. 719 , 8 S.E. 147, 1888 N.C. LEXIS 129 (1888).

Because indictment charging defendant with assaulting victim specifically named as principal the person whom the defendant aided and abetted, and the principal was acquitted of assaulting the victim at a subsequent separate trial, because the named principal was acquitted, defendant’s conviction for aiding and abetting that assault had to be vacated. State v. Byrd, 122 N.C. App. 497, 470 S.E.2d 548, 1996 N.C. App. LEXIS 459 (1996).

Effect of Acquittal of One of Several Principals. —

Where there are three charged as principals with murder, the acquittal of one of them, the others having fled the jurisdiction of the court, does not of itself acquit the prisoners on trial as accessories before or after the fact, when the evidence of their guilt of the offense charged is sufficient both as to them as accessories and the principals directly charged with the murder. State v. Walton, 186 N.C. 485 , 119 S.E. 886, 1923 N.C. LEXIS 279 (1923).

Failure to Raise Acquittal of Principal on Appeal. —

Where indictment charging defendant with robbery was amended at the close of evidence to allege that defendant acted as an aider and abettor, principal was acquitted of robbery at subsequent separate trial, but defendant did not argue on appeal that his conviction for robbery should be reversed on the basis that principal was acquitted of robbery, the appellate court would not address the issue and defendant’s conviction for aiding and abetting robbery was not reversed. State v. Byrd, 122 N.C. App. 497, 470 S.E.2d 548, 1996 N.C. App. LEXIS 459 (1996).

New Trial Where Conviction of Principal Is Vacated. —

Where the conviction of the principal has been vacated by an order for a new trial, a new trial as to the alleged abettor defendant must also be ordered. State v. Spencer, 18 N.C. App. 499, 197 S.E.2d 232, 1973 N.C. App. LEXIS 1922 (1973).

Sentences Imposed Need Not Be Equal. —

There is no rule of law that sentences imposed upon defendants for a crime jointly committed by them must be equal. State v. Barrow, 292 N.C. 227 , 232 S.E.2d 693, 1977 N.C. LEXIS 1056 (1977).

Sentences for Capital Felonies. —

Although it was error for the trial court to fail to submit the special question to the jury regarding the basis of its verdict on the capital murder charge, since under the law in effect prior to October 1, 1994, both a Class A felony and a Class B felony required mandatory life sentences, the defendant was not prejudiced by the trial court’s error. State v. Larrimore, 340 N.C. 119 , 456 S.E.2d 789, 1995 N.C. LEXIS 242 (1995).

B.Indictment

What Indictment Must Aver. —

It is not necessary to allege maliciousness in the indictment. State v. Saults, 294 N.C. 722 , 242 S.E.2d 801, 1978 N.C. LEXIS 1300 (1978).

Allegation of Underlying Felony. —

In order to state a violation of former G.S. 14-5 , the indictment had to allege an underlying felony. State v. Hanson, 57 N.C. App. 595, 291 S.E.2d 912, 1982 N.C. App. LEXIS 2689 (1982).

Indictment Charging Principal Felony Is Sufficient. —

In cases controlled by this section, an indictment charging the principal felony will support trial and conviction as an accessory before the fact. State v. Gallagher, 313 N.C. 132 , 326 S.E.2d 873, 1985 N.C. LEXIS 1512 (1985).

C.Evidence

The record of the conviction of a principal felon is admissible on the trial of the accessory, and is conclusive evidence of the conviction of the principal, and prima facie evidence of his guilt. State v. Chittem, 13 N.C. 49 , 1828 N.C. LEXIS 82 (1828).

But not until judgment has been rendered on the verdict. State v. Duncan, 28 N.C. 98 , 1845 N.C. LEXIS 30 (1845).

Sufficiency of Evidence. —

Testimony that the accused had asked the person convicted of the murder of her husband to kill him, and that he accomplished the act the morning afterwards at the place she designated, was sufficient for a conviction of murder as an accessory before the fact. State v. Jones, 176 N.C. 702 , 97 S.E. 32, 1918 N.C. LEXIS 334 (1918).

Evidence was insufficient to convict defendant of conspiracy to embezzle and embezzlement based on the actions of defendant’s spouse in obtaining blank checks from the family business and using defendant’s parent’s signature stamp to forge nearly one-half million dollars worth of checks, all without permission, because the spouse had not received the blank checks that were forged in the course of employment or by the terms of employment and it followed that because the State had failed to prove that the spouse was guilty of embezzlement, defendant could not be convicted of aiding and abetting embezzlement without proof that an embezzlement occurred. State v. Weaver, 160 N.C. App. 613, 586 S.E.2d 841, 2003 N.C. App. LEXIS 1931 (2003), aff'd, 359 N.C. 246 , 607 S.E.2d 599, 2005 N.C. LEXIS 30 (2005).

D.Instructions

Accessory Before the Fact. —

Trial court did not commit plain error by instructing the jury on the theory of accessory before the fact as G.S. 14-5.2 did not abolish the theory of accessory before the fact, but merely abolished the distinction between an accessory before the fact and a principal; defendant was not convicted of a separate offense of accessory before the fact. The jury merely had the opportunity to find defendant guilty of burglary using the theory of accessory before the fact. State v. Surrett, 217 N.C. App. 89, 719 S.E.2d 120, 2011 N.C. App. LEXIS 2345 (2011).

Defendant was prejudiced under G.S. 15A-1443 of the trial court’s failure to instruct the jury on accessory before the fact to first degree murder pursuant to G.S. 14-5.2 because the proper instruction to the jury would have been accompanied by the special question to the jury regarding the basis of its verdict, which in turn would have determined whether she should have been sentenced to a class A or class B felony. State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364, 2012 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696 , 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

Defendant was not entitled to a new trial where the trial court failed to instruct the jury on accessory before the fact because she was convicted of first-degree murder under theories of both premeditation and deliberation and the felony murder rule, and her conviction of felony murder was supported by ample evidence. Defendant admitted that she asked to the two men to “freak out” her father, and sending them to attack her father, knowing they were armed, created a substantial foreseeable risk to human life. State v. Grainger, 367 N.C. 696 , 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

Corroborating Testimony Of Principal. —

Record included ample evidence corroborating the testimony of a principal because other witnesses and evidence, such as surveillance cameras, corroborated various significant aspects of the principal’s testimony; yet it could not be determined that the jury did or did not base defendant’s conviction“ solely on the uncorroborated testimony of the principal. State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364, 2012 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696 , 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

Trial court erred in failing to instruct the jury on accessory before the fact to first degree murder pursuant to G.S. 14-5.2 because the State offered no evidence indicating that defendant was actually or constructively present during the commission of the crime; defendant’s possible criminal actions occurred before the commission of the murder and after the principals had committed the murder and had already safely left the crime scene. State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364, 2012 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696 , 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

Instruction on Elements of Offense. —

The State offered substantial evidence of each and every element of, and the judge properly instructed the jury on, accessory before the fact of felony, i.e., that: (1) the defendant counseled, procured or commanded the principal(s) to commit the offense; (2) the defendant was not present when the principal(s) committed the offense; and (3) the principals committed the offense. State v. Walden, 75 N.C. App. 79, 330 S.E.2d 271, 1985 N.C. App. LEXIS 3587 (1985).

Instruction on Conspiracy. —

Evidence sufficient to show defendant’s involvement in a criminal conspiracy does not itself establish defendant’s liability as a party to the substantive felony committed as a result of the conspiracy; it is reversible error for the court to so instruct the jury. State v. Small, 301 N.C. 407 , 272 S.E.2d 128, 1980 N.C. LEXIS 1176 (1980).

Instructions on Heinous, Atrocious or Cruel Aggravating Circumstance Applied to Accessory. —

Court rejected defendant’s contention that the submission of the especially heinous, atrocious, or cruel aggravating circumstance violated his rights under the North Carolina and United States Constitutions because it impermissibly allowed the jury to find the existence of an aggravating circumstance based solely upon his codefendants’ actions; although defendant was not present when his grandmother who adopted him and his nephew were stabbed and burned to death, defendant admitted to planning the murders and enlisting his codefendants to perform them. State v. Brewington, 352 N.C. 489 , 532 S.E.2d 496, 2000 N.C. LEXIS 616 (2000), cert. denied, 531 U.S. 1165, 121 S. Ct. 1126, 148 L. Ed. 2d 992, 2001 U.S. LEXIS 1416 (2001).

Instruction on Second Degree Murder Held Error. —

Where the State sought to prove murder by use of the “accessory before the fact” theory, the trial court erred in submitting second degree murder as a possible jury verdict since on the evidence presented the jury rationally could have only either convicted or acquitted her of first degree murder. State v. Arnold, 98 N.C. App. 518, 392 S.E.2d 140, 1990 N.C. App. LEXIS 455 (1990), aff'd, 329 N.C. 128 , 404 S.E.2d 822, 1991 N.C. LEXIS 405 (1991).

Where trial court’s instructions made no mention of the necessary causal connection between defendant’s alleged statements and principal’s actions, simply stating that defendant should be found guilty if the jury found that principal murdered victim and that defendant “knowingly instigated, counseled or procured” the murder, the jury was not adequately instructed with respect to the chain of causation necessary to a conviction of accessory before the fact to murder. State v. Davis, 319 N.C. 620 , 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987).

No Error in Declining to Submit Accessory Before the Fact as Lesser Included Offense. —

Defendant was at least constructively present when the killing occurred; therefore, it was not error to decline to submit to the jury as a possible verdict accessory before the fact of murder as a lesser included offense. State v. Willis, 332 N.C. 151 , 420 S.E.2d 158, 1992 N.C. LEXIS 466 (1992).

The defendant was not entitled to an instruction on accessory before the fact, since he was constructively present at the crime scene, where he dropped the perpetrator off at the scene of the robbery-murder knowing that a crime of some type was to take place, and he stayed to help the perpetrator flee the scene. State v. White, 131 N.C. App. 734, 509 S.E.2d 462, 1998 N.C. App. LEXIS 1547 (1998).

Disjunctive Instruction Proper. —

Trial court did not err in giving a disjunctive instruction because the evidence was sufficient to find defendant guilty of first-degree sexual offense under the theory that he employed a dangerous or deadly weapon in the commission of the sexual act as well as under the theory that he was aided and abetted by one or more persons in the perpetration of the crime; by joining defendant in unclothing and immobilizing the victim, others were deemed to have contributed to the commission of the crime. State v. Dick, 370 N.C. 305 , 807 S.E.2d 545, 2017 N.C. LEXIS 945 (2017).

§ 14-6. [Repealed]

Repealed by Session Laws 1981, c. 686, s. 2.

Cross References.

For present provisions as to punishment of accessories before the fact, see G.S. 14-5.2 .

§ 14-7. Accessories after the fact; trial and punishment.

If any person shall become an accessory after the fact to any felony, whether the same be a felony at common law or by virtue of any statute made, or to be made, such person shall be guilty of a crime, and may be indicted and convicted together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted for such crime whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice. Unless a different classification is expressly stated, that person shall be punished for an offense that is two classes lower than the felony the principal felon committed, except that an accessory after the fact to a Class A or Class B1 felony is a Class C felony, an accessory after the fact to a Class B2 felony is a Class D felony, an accessory after the fact to a Class H felony is a Class 1 misdemeanor, and an accessory after the fact to a Class I felony is a Class 2 misdemeanor. The offense of such person may be inquired of, tried, determined and punished by any court which shall have jurisdiction of the principal felon, in the same manner as if the act, by reason whereof such person shall have become an accessory, had been committed at the same place as the principal felony, although such act may have been committed without the limits of the State; and in case the principal felony shall have been committed within the body of any county, and the act by reason whereof any person shall have become accessory shall have been committed within the body of any other county, the offense of such person guilty of a felony as aforesaid may be inquired of, tried, determined, and punished in either of said counties: Provided, that no person who shall be once duly tried for such felony shall be again indicted or tried for the same offense.

History. 1797, c. 485, s. 1, P.R; 1852, c. 58; R.C., c. 34, s. 54; Code, s. 978; Rev., s. 3289; C.S., s. 4177; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1997-443, s. 19.25(p).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

In General. —

An accessory after the fact is one who, after a felony has been committed, with knowledge that the felony has been committed, renders personal assistance to the felon in any manner to aid him to escape arrest or punishment knowing, at the time, the person so aided has committed a felony. State v. Potter, 221 N.C. 153 , 19 S.E.2d 257, 1942 N.C. LEXIS 417 (1942); State v. Williams, 17 N.C. App. 39, 193 S.E.2d 452, 1972 N.C. App. LEXIS 1557 (1972), cert. denied, 282 N.C. 675 , 194 S.E.2d 155, 1973 N.C. LEXIS 1152 (1973).

An accessory after the fact under this section is one who, knowing that a felony has been committed by another, receives, relieves, comforts or assists such other, the felon, or in any manner aids him to escape arrest or punishment. State v. Squire, 292 N.C. 494 , 234 S.E.2d 563, 1977 N.C. LEXIS 1134 , cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977).

Subject Matter Jurisdiction. —

Variance in indictment charging defendant with accessory after the fact to first degree murder did not deprive the trial court of subject matter jurisdiction to try defendant for accessory after the fact to second degree murder, as the indictment provided defendant with adequate notice to prepare his defense and to protect him from double jeopardy; defendant was clearly apprised of the conduct that was the subject of the accusation: that he rendered aid to the perpetrator after the perpetrator killed the victim. State v. Cole, 209 N.C. App. 84, 703 S.E.2d 842, 2011 N.C. App. LEXIS 59 (2011).

“Accessory After the Fact” Is a Substantive Crime. —

Accessory after the fact is a substantive crime. State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

Armed robbery under G.S. 14-87 differs in fact and in law from accessory after the fact under this section. State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

The offense of being an accessory after the fact to manslaughter is a substantive felony offense. State v. Martin, 30 N.C. App. 166, 226 S.E.2d 682, 1976 N.C. App. LEXIS 2174 (1976).

And Not a Lesser Degree of the Principal Crime. —

See State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

Hence, Participant in Felony Cannot Be Accessory. —

A participant in a felony may no more be an accessory after the fact than one who commits larceny may be guilty of receiving the goods which he himself had stolen. State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

Nor Can Acquittal as Accessory Bar Prosecution for Principal Crime. —

An acquittal of a charge of accessory after the fact of armed robbery will not support a plea of former jeopardy in a subsequent prosecution of the same defendant for armed robbery. State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

Effect of Principal’s Acquittal on an Accessory After the Fact. —

This section does not permit the conviction of an accessory after the fact to a felony committed by a named principal if that named principal is acquitted. State v. Robey, 91 N.C. App. 198, 371 S.E.2d 711, 1988 N.C. App. LEXIS 807 (1988).

Accessory Before and After the Fact Distinguished. —

The elements of the crime of being an accessory after the fact are separate and distinct from those involved in the crimes of being a principal or an accessory before the fact. State v. Cabey, 307 N.C. 496 , 299 S.E.2d 194, 1983 N.C. LEXIS 1100 (1983).

Elements of Offense. —

In order to convict a defendant of being an accessory after the fact under this section, the State must prove the following: (1) the felony has been committed by the principal; (2) the alleged accessory gave personal assistance to that principal to aid in his escaping detection, arrest, or punishment; and (3) the alleged accessory knew the principal committed the felony. State v. Duvall, 50 N.C. App. 684, 275 S.E.2d 842, 1981 N.C. App. LEXIS 2179 , rev'd, 304 N.C. 557 , 284 S.E.2d 495, 1981 N.C. LEXIS 1364 (1981).

Under this section, the State had to prove three things in its prosecution of defendant as an accessory after the fact: (1) the principal committed a felony; (2) the alleged accomplice personally aided the principal in his attempts to avoid criminal liability by any means calculated to assist him in doing so; and (3) the accomplice gave such help with knowledge that the principal had committed a felony. State v. Fearing, 304 N.C. 499 , 284 S.E.2d 479, 1981 N.C. LEXIS 1362 (1981).

In order to prove a person was an accessory after the fact three essential elements must be shown: (1) a felony was committed; (2) the accused knew that the person he received, relieved or assisted was the person who committed the felony; and (3) the accused rendered assistance to the felon personally. State v. Earnhardt, 307 N.C. 62 , 296 S.E.2d 649, 1982 N.C. LEXIS 1603 (1982).

In a prosecution for accessory after the fact under this section, the State need only show that the defendant knew: (1) That a felony had been committed; (2) that the principal had committed it; and (3) that the defendant rendered assistance to the principal personally. State v. Upright, 72 N.C. App. 94, 323 S.E.2d 479, 1984 N.C. App. LEXIS 4005 (1984), cert. denied, 313 N.C. 610 , 332 S.E.2d 82, 1985 N.C. LEXIS 1864 (1985).

Same — Robbery. —

On a charge of accessory after the fact to robbery the State must show: (1) robbery, (2) the accused knew of it and (3) possessing that knowledge, he assisted the robber in escaping detection, arrest and punishment. State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964); State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, 1978 N.C. App. LEXIS 2747 (1978), cert. denied, 295 N.C. 649 , 248 S.E.2d 253, 1978 N.C. LEXIS 1103 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487, 1979 U.S. LEXIS 974 (1979).

Same — Rape. —

To convict parents of the accused as accessories to the crime of rape, the State had the burden of proving beyond a reasonable doubt these essentials of the offense charged, namely: (1) That the son had actually committed the alleged crime of rape; (2) that the parents knew that the son had committed the alleged crime of rape; and (3) that the parents assisted the son in his efforts to avoid detection, arrest and punishment. State v. Overman, 284 N.C. 335 , 200 S.E.2d 604, 1973 N.C. LEXIS 865 (1973).

Same — Manslaughter. —

To constitute a person an accessory after the fact to manslaughter, these essentials must appear: (1) manslaughter must have been committed; (2) the accused must know that manslaughter has been committed by the person received, relieved or assisted; (3) the accessory must render assistance to the felon personally. State v. Martin, 30 N.C. App. 166, 226 S.E.2d 682, 1976 N.C. App. LEXIS 2174 (1976).

One cannot become an accessory after the fact until the offense has become an accomplished fact. —

Thus, a person cannot be convicted as an accessory after the fact to a murder because he aided the murderer to escape, when the aid was rendered after the mortal wound was given but before death ensued, as a murder is not complete until the death results. State v. Williams, 229 N.C. 348 , 49 S.E.2d 617, 1948 N.C. LEXIS 473 (1948).

The crime of accessory after the fact has its beginning after the principal offense has been committed. State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

Joinable Offenses. —

Being an accessory after the fact and aiding and abetting are joinable offenses. State v. Jewell, 104 N.C. App. 350, 409 S.E.2d 757, 1991 N.C. App. LEXIS 1046 (1991), aff'd, 331 N.C. 379 , 416 S.E.2d 3, 1992 N.C. LEXIS 272 (1992).

The offenses of accessory after the fact of a felony and being an aider and abettor to that felony are joinable offenses for purposes of indictment and trial, even though a defendant cannot be convicted of both. State v. Jewell, 104 N.C. App. 350, 409 S.E.2d 757, 1991 N.C. App. LEXIS 1046 (1991), aff'd, 331 N.C. 379 , 416 S.E.2d 3, 1992 N.C. LEXIS 272 (1992).

Aiding and Abetting as Aggravating Factor. —

When a defendant pleads guilty to being an accessory after the fact of a crime, should the trial court find by a preponderance of the evidence that the defendant aided and abetted in the commission of that crime, it may use this factor in aggravation of defendant’s sentence on the accessory charge. State v. Jewell, 104 N.C. App. 350, 409 S.E.2d 757, 1991 N.C. App. LEXIS 1046 (1991), aff'd, 331 N.C. 379 , 416 S.E.2d 3, 1992 N.C. LEXIS 272 (1992).

It is not necessary that the aid given by the accessory after the fact be effective to enable the felon to escape all or a part of his punishment. State v. Martin, 30 N.C. App. 166, 226 S.E.2d 682, 1976 N.C. App. LEXIS 2174 (1976).

Effect of Directed Verdict to Principal Offense. —

Since the crime of accessory after the fact has its beginning after the principal offense has been committed, a directed verdict of not guilty of armed robbery does not decide the issue of whether the defendant joined the criminal scheme after the robbery was complete. State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, 1978 N.C. App. LEXIS 2747 (1978), cert. denied, 295 N.C. 649 , 248 S.E.2d 253, 1978 N.C. LEXIS 1103 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487, 1979 U.S. LEXIS 974 (1979).

A directed verdict of not guilty of armed robbery only removes the issues of whether defendant participated as a principal robber or whether he aided and abetted in the commission of the robbery. The possibility remains that after the robbery was committed, the defendant assisted the felons by transporting them in his car from the scene of the crime. State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, 1978 N.C. App. LEXIS 2747 (1978), cert. denied, 295 N.C. 649 , 248 S.E.2d 253, 1978 N.C. LEXIS 1103 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487, 1979 U.S. LEXIS 974 (1979).

A directed verdict of not guilty of armed robbery foreclosed the State from subsequent prosecutions of defendant for armed robbery or for any lesser included offenses of armed robbery. But accessory after the fact of armed robbery is not a lesser included offense of armed robbery. Therefore, general double jeopardy motions would not bar the trial of defendant on charges of accessory after the fact to armed robbery. State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, 1978 N.C. App. LEXIS 2747 (1978), cert. denied, 295 N.C. 649 , 248 S.E.2d 253, 1978 N.C. LEXIS 1103 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487, 1979 U.S. LEXIS 974 (1979).

A receiver of stolen goods is not an accessory after the fact. State v. Tyler, 85 N.C. 569 , 1881 N.C. LEXIS 326 (1881).

Accepting part of the proceeds of a crime does not make one an accessory after the fact; rather, it constitutes the crime of receiving stolen goods. State v. Lewis, 58 N.C. App. 348, 293 S.E.2d 638, 1982 N.C. App. LEXIS 2771 (1982), cert. denied, 311 N.C. 766 , 321 S.E.2d 152, 1984 N.C. LEXIS 2125 (1984).

Evidence Prejudicial to Both Charged Felon and Accessory After the Fact. —

Where the court found prejudicial error in the proof that an alleged murderer committed the charged felony, and therefore awarded her a new trial, and the State had used the same evidence to also prove defendant was an accessory-after-the-fact, defendant was also entitled to a new trial. State v. Robey, 91 N.C. App. 198, 371 S.E.2d 711, 1988 N.C. App. LEXIS 807 (1988).

Fact that the perpetrator of an offense pleaded guilty to a lesser-included offense did not exculpate defendant on a charge of accessory after the fact. State v. McGee, 197 N.C. App. 366, 676 S.E.2d 662, 2009 N.C. App. LEXIS 677 (2009).

Denial of motion to dismiss charge of accessory after the fact to voluntary manslaughter was proper where the principal and a witness testified that defendant suggested evading punishment by falsely claiming that the victim had attempted to rape defendant. State v. Jordan, 162 N.C. App. 308, 590 S.E.2d 424, 2004 N.C. App. LEXIS 125 (2004).

Evidence Held Sufficient. —

The State presented sufficient evidence of the elements of accessory after the fact to withstand a motion to dismiss. State v. Barnes, 116 N.C. App. 311, 447 S.E.2d 478, 1994 N.C. App. LEXIS 898 (1994).

Defendant’s conviction for accessory after the fact to second-degree murder was supported by evidence showing defendant personally helped the principal avoid arrest, including testimony about the perpetrator’s guilt, circumstantial evidence linking the perpetrator to a car used in the crime, and the perpetrator’s guilty plea, and testimony that defendant learned the perpetrator had “gotten his stripes” by attacking the victim, that defendant offered $2,000 for use of a car to leave town with the perpetrator, and that they left town. State v. Brewington, 179 N.C. App. 772, 635 S.E.2d 512, 2006 N.C. App. LEXIS 2133 (2006).

Defendant was properly convicted of accessory after the fact to second degree murder in violation of G.S. 14-7 because the knowledge element of the offense was shown despite defendant not having seen the victim die; victim was shot at close range, which gave rise to inference that defendant knew what had happened to the victim. State v. Cole, 209 N.C. App. 84, 703 S.E.2d 842, 2011 N.C. App. LEXIS 59 (2011).

Evidence, including testimony that defendant was told that the gun placed in his trunk was used in the murder, gave rise to an inference that defendant knew what had taken place and support the denial of his motion to dismiss; it did not matter that defendant was not successful in helping the other person escape punishment. State v. Schiro, 219 N.C. App. 105, 723 S.E.2d 134, 2012 N.C. App. LEXIS 245 (2012).

Trial court properly denied defendant’s motion to dismiss the charge of accessory after the fact, as the jury could have concluded that defendant’s false statements were made in an effort to shield the identity of the actual shooter. State v. Cousin, 233 N.C. App. 523, 757 S.E.2d 332, 2014 N.C. App. LEXIS 362 (2014).

Evidence Held Insufficient. —

Evidence that defendant removed his truck from the scene of the crimes after the truck had been used to facilitate the crimes was insufficient to support verdict of accessory after the fact of breaking or entering and larceny. State v. Fie, 80 N.C. App. 577, 343 S.E.2d 248, 1986 N.C. App. LEXIS 2248 (1986), rev'd, 320 N.C. 626 , 359 S.E.2d 774, 1987 N.C. LEXIS 2328 (1987).

Defendant’s mere failure to report a crime did not render her an accessory after the fact and therefore, the State failed to prove any actus reus and the motion to dismiss that count should have been granted. State v. Ditenhafer, 258 N.C. App. 537, 812 S.E.2d 896, 2018 N.C. App. LEXIS 291 (2018), aff'd in part, rev'd, 373 N.C. 116 , 834 S.E.2d 392, 2019 N.C. LEXIS 1063 (2019).

Evidence that witness was accessory after the fact did not subject her testimony to rules relating to accomplice testimony. State v. Cabey, 307 N.C. 496 , 299 S.E.2d 194, 1983 N.C. LEXIS 1100 (1983).

Instruction Not Warranted. —

The trial court did not err in failing to instruct as to one defendant on the offenses of accessory before and accessory after the fact to the crimes of armed robbery and murder where the evidence showed that both defendants were present at the scene and were acting together in the commission of the armed robbery, and that the murders occurred in furtherance of their common purpose to commit this crime or as a natural consequence thereof. State v. Oliver, 302 N.C. 28 , 274 S.E.2d 183, 1981 N.C. LEXIS 1030 (1981).

Instruction Warranted. —

It was not plain error for a trial court to instruct on the offense of accessory after the fact to second-degree murder because the State presented no evidence about what may have transpired between the victim and the principal offender before the principal shot the victim, and while physical evidence could have supported a finding of premeditation and deliberation, there was also testimony that the witness thought the victim had been “jumped,” supporting a reasonable inference that the attack was spontaneous. State v. Brewington, 179 N.C. App. 772, 635 S.E.2d 512, 2006 N.C. App. LEXIS 2133 (2006).

Article 2A. Habitual Felons.

§ 14-7.1. Persons defined as habitual felons.

  1. Any person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof is declared to be an habitual felon and may be charged as a status offender pursuant to this Article.
  2. For the purpose of this Article, a felony offense is defined to include all of the following:
    1. An offense that is a felony under the laws of this State.
    2. An offense that is a felony under the laws of another state or sovereign that is substantially similar to an offense that is a felony in North Carolina, and to which a plea of guilty was entered, or a conviction was returned regardless of the sentence actually imposed.
    3. An offense that is a crime under the laws of another state or sovereign that does not classify any crimes as felonies if all of the following apply:
      1. The offense is substantially similar to an offense that is a felony in North Carolina.
      2. The offense may be punishable by imprisonment for more than a year in state prison.
      3. A plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed.
    4. An offense that is a felony under federal law. Provided, however, that federal offenses relating to the manufacture, possession, sale and kindred offenses involving intoxicating liquors shall not be considered felonies for the purposes of this Article.
  3. For the purposes of this Article, felonies committed before a person attains the age of 18 years shall not constitute more than one felony. The commission of a second felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the first felony. The commission of a third felony shall not fall within the purview of this Article unless it is committed after the conviction of or plea of guilty to the second felony. Pleas of guilty to or convictions of felony offenses prior to July 6, 1967, shall not be felony offenses within the meaning of this Article. Any felony offense to which a pardon has been extended shall not for the purpose of this Article constitute a felony. The burden of proving such pardon shall rest with the defendant and the State shall not be required to disprove a pardon.

History. 1967, c. 1241, s. 1; 1971, c. 1231, s. 1; 1979, c. 760, s. 4; 1981, c. 179, s. 10; 2011-192, s. 3(b); 2017-176, s. 2(a).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

Session Laws 2017-176, s. 2(c), made the rewriting of subsection (b) of this section by Session Laws 2017-176, s. 2(a), effective December 1, 2017, and applicable to any offense committed on or after that date and that is the principal felony offense for a charge of a status offense of habitual felon. Additionally, prosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.

Effect of Amendments.

Session Laws 2011-192, s. 3(b), effective December 1, 2011, added “and may be charged as a status offender pursuant to this Article” in the first sentence. For applicability, see Editor’s note.

Session Laws 2017-176, s. 2(a), added the subsection and subdivision designations; rewrote subsection (b), which read: “For the purpose of this Article, a felony offense is defined as an offense which is a felony under the laws of the State or other sovereign wherein a plea of guilty was entered or a conviction was returned regardless of the sentence actually imposed. Provided, however, that federal offenses relating to the manufacture, possession, sale and kindred offenses involving intoxicating liquors shall not be considered felonies for the purposes of this Article.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1977 criminal law, see 56 N.C.L. Rev. 965 (1978).

For note, “The Treatment of Foreign Country Convictions As Predicates for Sentence Enhancement Under Recidivist Statutes,” see 44 Duke L.J. 134.

For article, “Once, Twice, Four Times a Felon: North Carolina’s Unconstitutional Recidivist Statutes,” see 24 Campbell L. Rev. 115 (2001).

For note, “United States v. Bryant, Federal Habitual Offender Laws, and the Rights of Defendants in Tribal Courts: A Better Solution to Domestic Violence Exists,” see 39 Campbell L. Rev. 205 (2017).

CASE NOTES

Enhanced Punishment Is Constitutional. —

The Legislature is not constitutionally prohibited from enhancing punishment for habitual offenders. State v. Todd, 313 N.C. 110 , 326 S.E.2d 249, 1985 N.C. LEXIS 1520 (1985).

The Legislature has acted within constitutionally permissible bounds in enacting legislation designed to identify habitual criminals and to authorize enhanced punishment. State v. Todd, 313 N.C. 110 , 326 S.E.2d 249, 1985 N.C. LEXIS 1520 (1985).

The habitual felon provisions of G.S. 14-7.1 et seq. (the Habitual Felon Act) do not violate N.C. Const., Art. I, § 6. State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, 2000 N.C. App. LEXIS 988 (2000); State v. Skipper, 146 N.C. App. 532, 553 S.E.2d 690, 2001 N.C. App. LEXIS 984 (2001).

Defendant’s constitutional challenges to his sentence as an habitual felon failed because (1) the North Carolina Habitual Felon Act was not violative of the Separation of Powers Clause; (2) there was no double jeopardy infirmity inherent in the Habitual Felon Act as applied in conjunction with the North Carolina Structured Sentencing Act; and (3) the state appellate court and the state supreme court have rejected constitutional challenges to the Habitual Felon Act based on allegations of cruel and unusual punishment. State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399, 2005 N.C. App. LEXIS 607 (2005).

Procedures Are Constitutional. —

The procedures set forth in G.S. 14-7.1 through 14-7.6 comport with the defendant’s federal and State constitutional guarantees. State v. Todd, 313 N.C. 110 , 326 S.E.2d 249, 1985 N.C. LEXIS 1520 (1985).

Purpose. —

The primary purpose of a recidivist statute is to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time. This segregation and its duration are based not merely on that person’s most recent offense, but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107, 1985 N.C. App. LEXIS 3922 (1985).

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. State v. Thomas, 82 N.C. App. 682, 347 S.E.2d 494, 1986 N.C. App. LEXIS 2607 (1986), cert. denied, 320 N.C. 637 , 360 S.E.2d 102, 1987 N.C. LEXIS 2376 (1987); State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721, 1988 N.C. App. LEXIS 273 (1988).

Persons Intended to Be Affected. —

The manifest intent of the General Assembly in enacting the Habitual Felon Act was to insure lengthier sentences for those persons who repeatedly violate the criminal laws of this State. Nowhere in the Act is there any indication that the Act was intended to apply only to those persons who repeatedly violate the same criminal law, and the court declined to write any such requirement into the law. State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251, 1993 N.C. App. LEXIS 1124 (1993).

Determination of Whether Prior Conviction Constitutes a Felony a Question of North Carolina Law, Not Federal Law. —

Determination of whether a prior conviction constitutes a felony under the possession of a firearm by a felon offense and the habitual felon statute is a question of North Carolina state law, not federal law. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Being an habitual felon is not a crime but is a status, the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977).

Being an habitual felon is not a substantive crime. State v. Thomas, 82 N.C. App. 682, 347 S.E.2d 494, 1986 N.C. App. LEXIS 2607 (1986), cert. denied, 320 N.C. 637 , 360 S.E.2d 102, 1987 N.C. LEXIS 2376 (1987).

Being an habitual felon is not a crime but is a status. The status itself, standing alone, will not support a criminal sentence, and a court may not treat the violation of the Habitual Felon Act as a substantive offense. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721, 1988 N.C. App. LEXIS 273 (1988).

Because this section simply defines certain persons to be habitual felons, who, as such, are subject to greater punishment for criminal offenses, being an habitual felon is not a crime and cannot support, standing alone, a criminal sentence; rather, being an habitual felon is a status justifying an increased punishment for the principal felony. State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, 1994 N.C. App. LEXIS 716 (1994).

Being an habitual felon is not a crime but is a status, which subjects the individual subsequently convicted of a crime to increased punishment for that crime. State v. Patton, 119 N.C. App. 229, 458 S.E.2d 230, 1995 N.C. App. LEXIS 411 (1995), rev'd, 342 N.C. 633 , 466 S.E.2d 708, 1996 N.C. LEXIS 26 (1996).

Trial court erred in imposing a habitual felon sentence in a separate judgment from principal felony convictions, and directing that the latter run at the expiration of the habitual felon sentence; on remand, the court should calculate defendant’s prior record level pursuant to G.S. 15A-1340.14 and impose sentences upon the “underlying felonies as . . . Class C felonies.” State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, 2000 N.C. App. LEXIS 988 (2000).

Failure to Include Status in Indictment. —

Trial court had jurisdiction to try the defendant as habitual felon even though indictments for the underlying felonies did not charge the defendant with being a habitual felon; the principal felony indictment did not need to refer to the defendant’s alleged status as a habitual offender and defendant received adequate notice by separate indictment of the State’s intent to prosecute her as a habitual felon. State v. Sanders, 95 N.C. App. 494, 383 S.E.2d 409, 1989 N.C. App. LEXIS 809 (1989).

Sufficiency of Indictment. —

Where defendant did not dispute that his habitual felony indictment included each element specified in G.S. 14-7.3 , the indictment was facially valid; defendant’s claim that there was a variance between the indictment and the proof offered in support of the indictment should have been raised by a motion to dismiss and was waived by his guilty plea. State v. McGee, 175 N.C. App. 586, 623 S.E.2d 782, 2006 N.C. App. LEXIS 180 (2006).

State presented substantial evidence that defendant had attained the status of habitual felon as each of the three judgments introduced by the State listed the name of defendant as the same name by which defendant was charged in the latest indictment and defendant introduced no evidence to rebut that prima facie showing by the State. State v. Tyson, 189 N.C. App. 408, 658 S.E.2d 285, 2008 N.C. App. LEXIS 652 (2008).

Indictment Held Sufficient. —

Defendant contended that because the specific name of the controlled substance was not alleged in the indictment, the indictment was not sufficient to charge habitual felon; however, the habitual felon indictment alleging a prior conviction for felony possession with intent to manufacture, sell, or deliver a Schedule I controlled substance, in addition to two other felony convictions, was sufficient notice under North Carolina and case law. Additionally, because there was no defect in the indictment, the trial court had jurisdiction to sentence defendant as an habitual felon under G.S. 14-7.1 and G.S. 14-7.3 . State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399, 2005 N.C. App. LEXIS 607 (2005).

Although defendant’s habitual felon indictment predated defendant’s indictment for possessing stolen property, habitual felon indictment was ancillary to the possessing stolen property charges and complied with G.S. 14-7.1 . State v. Murray, 154 N.C. App. 631, 572 S.E.2d 845, 2002 N.C. App. LEXIS 1532 (2002), cert. denied, 357 N.C. 467 , 586 S.E.2d 778, 2003 N.C. LEXIS 967 (2003).

Conviction on Predicate Felonies. —

Defendant’s argument, that he was not convicted for purposes of G.S. 14-7.1 until he was sentenced for the first predicate felony, and, therefore, he committed the second felony before he was “convicted” of the first felony, did not challenge the sufficiency of the indictment on its face, and thus defendant’s guilty plea waived this argument; in any event, “conviction” referred to the jury’s or factfinder’s guilty verdict. State v. McGee, 175 N.C. App. 586, 623 S.E.2d 782, 2006 N.C. App. LEXIS 180 (2006).

Because possession of marijuana with intent to sell and deliver is a felony under North Carolina state law, the trial court properly relied on that conviction as one of defendant’s three prior convictions that qualified him for habitual felony status and satisfied the predicate felony element in prosecuting the possession of firearm by a felon, and the trial court had jurisdiction to sentence defendant as a habitual felon. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Separate Hearing to Determine Status Not Required. —

The Habitual Felons Act does not authorize an independent proceeding to determine defendant’s status as a habitual felon separate from the prosecution of a predicate substantive felony; the habitual felon indictment is necessarily ancillary to the indictment for the substantive felony. State v. Cheek, 339 N.C. 725 , 453 S.E.2d 862, 1995 N.C. LEXIS 93 (1995).

A separate habitual felon indictment is not required for each substantive felony indictment. State v. Patton, 342 N.C. 633 , 466 S.E.2d 708, 1996 N.C. LEXIS 26 (1996).

Printouts from the Automated Criminal/Infraction System (ACIS) database were admissible evidence to prove a prior felony under the Habitual Felon Act and thus, were not barred by the best evidence rule because the clerk of court, who maintained the physical court records, testified that the printout was a certified true copy of the information in ACIS; the best evidence rule does not bar the admission of the printout merely because the original judgment was unaccounted for at trial. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189, 2018 N.C. App. LEXIS 740 (2018), aff'd in part, 375 N.C. 232 , 846 S.E.2d 688, 2020 N.C. LEXIS 689 (2020).

This Article does not authorize an independent proceeding to establish a defendant’s status as an habitual felon. One must be charged as an habitual felon prior to the entry of a plea or a conviction on the substantive offense. Hyman v. Garrison, 567 F. Supp. 588, 1983 U.S. Dist. LEXIS 18989 (E.D.N.C. 1983).

Properly construed, this article clearly contemplates that when one who has already attained the status of an habitual felon is indicted for the commission of another felony, that person may then be also indicted in a separate bill as being an habitual felon. It is likewise clear that the proceeding by which the State seeks to establish that a defendant is an habitual felon is necessarily ancillary to a pending prosecution for the “principal,” or substantive, felony. Hyman v. Garrison, 567 F. Supp. 588, 1983 U.S. Dist. LEXIS 18989 (E.D.N.C. 1983).

Admission of Habitual Felon Status. —

Where admission of evidence showing that defendant previously had been adjudicated an habitual felon could not have affected the outcome of defendant’s habitual felon proceeding, such evidence was not improperly admitted. State v. Bishop, 343 N.C. 518 , 472 S.E.2d 842, 1996 N.C. LEXIS 412 (1996), cert. denied, 519 U.S. 1097, 117 S. Ct. 779, 136 L. Ed. 2d 723, 1997 U.S. LEXIS 616 (1997).

The prosecution may not use the conviction of the substantive felony to satisfy the requirements of this article. Simply stated, a person may not be indicted as an habitual felon until he is indicted for his fourth felony offense. Hyman v. Garrison, 567 F. Supp. 588, 1983 U.S. Dist. LEXIS 18989 (E.D.N.C. 1983).

1973 Plea of Nolo Contendere. —

Sentence entered in 1973 (before the enactment of G.S. 15A-1022 ), pursuant to plea of nolo contendere was not conviction for purposes of this section. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337, 1990 N.C. App. LEXIS 1064 (1990).

Guilty Plea Valid. —

Failure of the trial court to inform defendant of the maximum of minimum sentence did not invalidate defendant’s guilty plea to being an habitual offender. State v. Szucs, 207 N.C. App. 694, 701 S.E.2d 362, 2010 N.C. App. LEXIS 2014 (2010).

A no contest plea is a “conviction” within the meaning of this section. State v. Jackson, 128 N.C. App. 626, 495 S.E.2d 916, 1998 N.C. App. LEXIS 152 (1998).

“Conviction”, in the context of this section, includes final judgments entered upon the entry of a no contest plea, provided the no contest plea was entered after July 1, 1975. State v. Jackson, 128 N.C. App. 626, 495 S.E.2d 916, 1998 N.C. App. LEXIS 152 (1998).

Failure to be Present. —

In light of the fact that defendant had waived his right to be at his trial on drug charges due to his unexplained absence from the court, there was no error on the part of the trial court with continuing with the habitual offender portion of defendant’s trial since he was informed of the previous convictions the State intended to use and was given a fair opportunity to either admit or deny them or remain silent. State v. Davis, 186 N.C. App. 242, 650 S.E.2d 612, 2007 N.C. App. LEXIS 2109 (2007).

Fair Sentencing Act. —

Although the principal provisions of the Fair Sentencing Act are codified in Chapter 15A, Article 81A, the act resulted in revisions to other portions of the general statutes. See e.g., Chapter 14, Articles 1, 2, 2A, 33; Chapter 15A, Articles 58, 81A, 82, 83, 85, 85A, 89, 91; Chapter 148, Article 2, and Chapter 162, Article 4. State v. Ahearn, 307 N.C. 584 , 300 S.E.2d 689, 1983 N.C. LEXIS 1120 (1983).

For discussion of the historical background, policies, purposes, and implementation of the new Fair Sentencing Act, see State v. Ahearn, 307 N.C. 584 , 300 S.E.2d 689, 1983 N.C. LEXIS 1120 (1983).

Structured Sentencing Act. —

The Habitual Felon Act, G.S. 14-7.1 to 14-7.6 is different than the Structured Sentencing Act, G.S. 15A-1340.10 to 15A-1340.23, but does not conflict with that act; the Habitual Offender Act elevates a convicted person’s status within structured sentencing so that the person is eligible for a longer minimum and maximum sentence. State v. Parks, 146 N.C. App. 568, 553 S.E.2d 695, 2001 N.C. App. LEXIS 982 (2001), cert. denied, 537 U.S. 832, 123 S. Ct. 140, 154 L. Ed. 2d 49, 2002 U.S. LEXIS 6159 (2002).

The Structured Sentencing Act, G.S. 15A-1340.10 to 15A-1340.23 may be applied together with the Habitual Felon Act, G.S. 14-7.1 to 14-7.6, as long as different convictions justify the application of each. State v. Parks, 146 N.C. App. 568, 553 S.E.2d 695, 2001 N.C. App. LEXIS 982 (2001), cert. denied, 537 U.S. 832, 123 S. Ct. 140, 154 L. Ed. 2d 49, 2002 U.S. LEXIS 6159 (2002).

Combined use of the Habitual Felon Act, G.S. 14-7.1 et seq., and the Structured Sentencing Act, G.S. 15A-1340.10 et seq., when imposing a sentence on an habitual felon, was not a violation of double jeopardy. State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208, 2002 N.C. App. LEXIS 1515 (2002), cert. denied, 540 U.S. 846, 124 S. Ct. 121, 157 L. Ed. 2d 84, 2003 U.S. LEXIS 5783 (2003).

Basis of Sentencing Habitual Felon. —

In sentencing a habitual felon, the duration of the sentence is based not only on the defendant’s most recent offense, but on his past criminal conduct as well. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107, 1985 N.C. App. LEXIS 3922 (1985).

Consideration of Aggravating Factors. —

The sentencing court can rely on certain prior criminal convictions to aggravate a current sentence; however, the court cannot consider as separate aggravating factors both the status of being an habitual felon and the felonies underlying the habitual felon adjudication. State v. Kirkpatrick, 345 N.C. 451 , 480 S.E.2d 400, 1997 N.C. LEXIS 7 (1997).

Gross disproportionality principle applied to habitual felon sentencing; however, a prison sentence of 168 to 211 months for obtaining property by false pretenses was not grossly disproportionate where the predicate felonies were serious, included at least one violent offense, and the current charges arose out of defendant’s use of a counterfeit check and false account scheme to obtain vehicles valued at $42,998 and $13,582. State v. Clifton, 158 N.C. App. 88, 580 S.E.2d 40, 2003 N.C. App. LEXIS 935 , cert. denied, 357 N.C. 463 , 586 S.E.2d 266, 2003 N.C. LEXIS 896 (2003).

Habitual Felon and Habitual Misdemeanor Assault. —

Fact that the offense of felony assault inflicting serious bodily injury was used as a predicate offense to charge both habitual misdemeanor assault and habitual felon did not render an indictment defective; however, that same offense could not be used to determine defendant’s prior record level at sentencing. State v. Sydnor, 246 N.C. App. 353, 782 S.E.2d 910, 2016 N.C. App. LEXIS 292 (2016).

Sentence on Conviction as Habitual Felon. —

Upon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721, 1988 N.C. App. LEXIS 273 (1988).

Sentence Enhancement. —

The State did not present substantial evidence that third conviction relied upon to enhance sentence as a habitual felon was a felony, where State presented it’s evidence regarding the questioned offense through a court clerk who read the contents of an out-of-state indictment and judgment for the offense, the indictment did not charge defendant with felonious possession of stolen property, and did not recite that defendant pled guilty to a felony or was sentenced as a felon, and there was no certification from any official that the offense to which defendant pled was a felony in that state at the time. State v. Lindsey, 118 N.C. App. 549, 455 S.E.2d 909, 1995 N.C. App. LEXIS 299 (1995).

State’s use of defendant’s prior misdemeanor convictions to enhance a sentence already enhanced under the Habitual Felon Act, G.S. 14-7.1 et seq., did not constitute cruel and unusual punishment. State v. Hall, 174 N.C. App. 353, 620 S.E.2d 723, 2005 N.C. App. LEXIS 2397 (2005).

Evidence Insufficient to Establish Habitual Offender Status. —

Defendant’s sentencing as a habitual offender required reversal based on the order reversing defendant’s conviction for felony assault with a deadly weapon on a government official because defendant then lacked the criminal history to support the habitual offender enhancement. State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29, 2007 N.C. App. LEXIS 1978 (2007).

Use of Prior Convictions. —

Defendant’s prior convictions will either serve to establish his status as an habitual felon pursuant to G.S. 15-7.1 or to increase his prior record level pursuant to G.S. 15A-1340.14(b)(1-5); the existence of prior convictions may not be used to increase a defendant’s sentence pursuant to both provisions at the same time. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430, 1996 N.C. App. LEXIS 470 (1996).

Section 14-7.6 does not prohibit the use of convictions used to establish the defendant’s status as an habitual offender to assign points pursuant to G.S. 15A-1340(b)(6) and (b)(7), because these provisions address the gravity and circumstances of the offense, rather than the mere existence of a prior offense. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430, 1996 N.C. App. LEXIS 470 (1996).

Where defendant’s prior convictions for possession of cocaine were defined by G.S. 90-95(d)(2) as misdemeanors punishable as felonies, they could not support the charges of possession of a firearm by a felon and being a habitual felon under G.S. 14-415.1 and G.S. 14-7.1 . State v. Sneed, 2003 N.C. App. LEXIS 2050 (N.C. Ct. App. Nov. 18, 2003).

Habitual offender charge was supported by a judgment, signed by the presiding judge on the uniform citation form and included in the record on appeal and two other charges which had been consolidated for judgment but which were two separate offenses under G.S. 20-138.5 . State v. Allen, 164 N.C. App. 665, 596 S.E.2d 261, 2004 N.C. App. LEXIS 1018 (2004).

Defendant’s prior conviction for possession of cocaine under G.S. 90-95(d)(2) was a felony and was properly used as a basis for his conviction upon his plea of guilty to being a habitual felon under G.S. 14-7.1 . State v. Jones, 358 N.C. 473 , 598 S.E.2d 125, 2004 N.C. LEXIS 671 (2004).

Defendant was properly sentenced as a habitual offender where the record showed that defendant had been convicted of three previous felony offenses, including possession of cocaine. State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172, 2005 N.C. App. LEXIS 950 (2005).

Defendant was erroneously sentenced as a habitual offender because one of the prior convictions relied upon was a conviction from New Jersey for an offense that was not a felony in New Jersey. State v. Moncree, 188 N.C. App. 221, 655 S.E.2d 464, 2008 N.C. App. LEXIS 94 (2008).

Attempted Assault With Deadly Weapon. —

Defendant’s prior conviction for attempted assault with a deadly weapon inflicting serious injury could support later charges for possession of a firearm by a convicted felon and attaining habitual felon status where the offense of attempted assault with a deadly weapon inflicting serious injury was recognized in North Carolina under the show-of-violence rule. State v. Floyd, 369 N.C. 329 , 794 S.E.2d 460, 2016 N.C. LEXIS 1130 (2016).

Defendant Has Burden of Proving Prior Felony Was Set Aside. —

Though defendant may have had a valid defense to a habitual felony proceeding if he could establish that a juvenile felony conviction was unconditionally discharged under the provisions of 18 U.S.C.S. § 5021(a), defendant did not submit any evidence of such a discharge and thereby failed to carry his burden of proof under G.S. 14-7.1 to show that a prior felony was set aside. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648, 2005 N.C. App. LEXIS 1011 (2005).

This section did not prohibit defendant’s felony sentence from being enhanced on the grounds that he was an habitual felon when elements necessary to prove that he was an habitual felon were the same as those elements which were used to support the underlying felony. State v. Misenheimer, 123 N.C. App. 156, 472 S.E.2d 191, 1996 N.C. App. LEXIS 574 , cert. denied, 344 N.C. 441 , 476 S.E.2d 128, 1996 N.C. LEXIS 607 (1996).

Where the indictment referenced a principal felony which was subsequently dismissed; the principal felony was not an essential element of being an habitual felon and was, therefore, treated as surplusage and ignored. State v. Bowens, 140 N.C. App. 217, 535 S.E.2d 870, 2000 N.C. App. LEXIS 1102 (2000).

Imposition of a 30-year sentence for a habitual felon who under the facts could have received a maximum sentence of life imprisonment under G.S. 14-1.1 was within constitutional limits and did not constitute cruel and unusual punishment. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107, 1985 N.C. App. LEXIS 3922 (1985).

Issuance of a habitual felon indictment prior to the substantive felony indictment did not by itself void the habitual felon indictment where the notice and procedural requirements of the Habitual Felons Act, G.S. 14-7.1 to 14-7.6, were satisfied. State v. Blakney, 156 N.C. App. 671, 577 S.E.2d 387, 2003 N.C. App. LEXIS 237 (2003).

Change of Date on Indictment. —

It was the fact that another felony was committed, not its specific date, which was the essential question in the habitual felon indictment; therefore, because the date alleged in the indictment was neither an essential nor a substantial fact as to the charge of habitual felon, the trial court properly allowed the State to change a date in the habitual felon indictment. State v. Locklear, 117 N.C. App. 255, 450 S.E.2d 516, 1994 N.C. App. LEXIS 1198 (1994).

Separate Judgment and Commitment Held Error. —

In prosecution for assault with a deadly weapon upon a law enforcement officer and being an habitual felon, the trial court erred in sentencing defendant in a separate judgment and commitment as an habitual felon. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721, 1988 N.C. App. LEXIS 273 (1988).

Notice to Defendant of Habitual Offender Allegation Required Before Plea. —

Defendant must have notice of the allegation of habitual felon status at the time of his plea to the underlying substantive felony charge. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477, 1994 N.C. App. LEXIS 26 (1994).

Trial court did not err in considering defendant’s prior adjudication as an habitual felon as a nonstatutory aggravating factor when sentencing defendant for uttering an instrument bearing a forged endorsement. State v. Kirkpatrick, 123 N.C. App. 86, 472 S.E.2d 371, 1996 N.C. App. LEXIS 561 (1996), aff'd, 345 N.C. 451 , 480 S.E.2d 400, 1997 N.C. LEXIS 7 (1997).

Length of Time Since Past Conviction. —

Under G.S. 14-7.1 , a nineteen-year-old conviction could be a predicate for habitual felon status. State v. Hensley, 156 N.C. App. 634, 577 S.E.2d 417, 2003 N.C. App. LEXIS 234 (2003).

No Double Jeopardy Violation. —

That a cocaine possession offense was used to support both an underlying substantive felony (the “felon” portion of the offense of “felon in possession of a firearm”) and a habitual felon indictment did not subject defendant to double jeopardy. State v. Glasco, 160 N.C. App. 150, 585 S.E.2d 257, 2003 N.C. App. LEXIS 1729 (2003).

Selective Prosecution Not Shown. —

Without substantial evidence of intentional discrimination, and absent a showing that the prosecutorial system was motivated by discriminatory purpose and had discriminatory effect, a District Attorney did not abuse his prosecutorial discretion in deciding to seek indictments against all individuals eligible for prosecution as habitual felons; defendant’s claim that he was subject to selective prosecution was without merit. State v. Blyther, 175 N.C. App. 226, 623 S.E.2d 43, 2005 N.C. App. LEXIS 2740 (2005), cert. denied, 549 U.S. 852, 127 S. Ct. 121, 166 L. Ed. 2d 91, 2006 U.S. LEXIS 6684 (2006).

Motion to Dismiss Properly Denied. —

Defendant’s motion to dismiss a habitual felon charge was properly denied because, during defendant’s trial for failing to register as sex offender, the State introduced evidence of defendant’s conviction in 1987 for first-degree sexual offense and during habitual felon phase, the State introduced evidence of defendant’s convictions for two other felonies; in a habitual felon proceeding, there was no need to reintroduce evidence from hearing for principal offense, and the introduction of the three felonies was enough for jury to decide that defendant had attained the status of habitual felon. State v. Hoskins, 225 N.C. App. 177, 736 S.E.2d 631, 2013 N.C. App. LEXIS 66 (2013).

§ 14-7.2. Punishment.

When any person is charged by indictment with the commission of a felony under the laws of the State of North Carolina and is also charged with being an habitual felon as defined in G.S. 14-7.1 , he must, upon conviction, be sentenced and punished as an habitual felon, as in this Chapter provided, except in those cases where the death penalty or a life sentence is imposed.

History. 1967, c. 1241, s. 2; 1981, c. 179, s. 11.

CASE NOTES

Being an habitual felon is not a crime, but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977).

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. The effect of such a proceeding is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977).

The district attorney has the authority and discretion to withdraw a habitual felon indictment as to some or all of the underlying felony charges pending against a defendant, up until the time that the jury returns a verdict of guilty that defendant had attained the status of a habitual felon. Once such a verdict has been returned, then the court must sentence defendant as a habitual felon pursuant to G.S. 14-7.2 ; however, G.S.14-7.2 is not applicable until defendant has been convicted of both the underlying felony and habitual felon status. State v. Murphy, 193 N.C. App. 236, 666 S.E.2d 880, 2008 N.C. App. LEXIS 1762 (2008).

Because a prosecutor had the discretion whether to prosecute defendant as a habitual felon or not and had the authority to dismiss charges against defendant at any stage of the proceedings under G.S. 15A-931(a), the prosecutor could only seek habitual felon status under G.S. 14-7.2 and G.S. 14-7.6 as to a possession of a firearm charge and not as to attempted robbery and robbery charges. State v. Murphy, 193 N.C. App. 236, 666 S.E.2d 880, 2008 N.C. App. LEXIS 1762 (2008).

Habitual Felon and Habitual Misdemeanor Assault. —

Fact that the offense of felony assault inflicting serious bodily injury was used as a predicate offense to charge both habitual misdemeanor assault and habitual felon did not render an indictment defective; however, that same offense could not be used to determine defendant’s prior record level at sentencing. State v. Sydnor, 246 N.C. App. 353, 782 S.E.2d 910, 2016 N.C. App. LEXIS 292 (2016).

Use of Prior Convictions. —

Court of appeals erred in reversing defendant’s sentence because the trial court properly elevated defendant’s possession of marijuana offense to a Class I felony on the basis of his prior conviction under the North Carolina Controlled Substances Act and correctly punished that substantive Class I felony as a Class E felony due to defendant’s habitual felon status. State v. Howell, 370 N.C. 647 , 811 S.E.2d 570, 2018 N.C. LEXIS 223 (2018).

§ 14-7.3. Charge of habitual felon.

The district attorney, in his or her discretion, may charge a person as an habitual felon pursuant to this Article. An indictment which charges a person who is an habitual felon within the meaning of G.S. 14-7.1 with the commission of any felony under the laws of the State of North Carolina must, in order to sustain a conviction of habitual felon, also charge that said person is an habitual felon. The indictment charging the defendant as an habitual felon shall be separate from the indictment charging him with the principal felony. An indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place. No defendant charged with being an habitual felon in a bill of indictment shall be required to go to trial on said charge within 20 days of the finding of a true bill by the grand jury; provided, the defendant may waive this 20-day period.

History. 1967, c. 1241, s. 3; 2011-192, s. 3(c).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

Effect of Amendments.

Session Laws 2011-192, s. 3(c), effective December 1, 2011, added the first sentence. For applicability, see Editor’s note.

Legal Periodicals.

For note, “United States v. Bryant, Federal Habitual Offender Laws, and the Rights of Defendants in Tribal Courts: A Better Solution to Domestic Violence Exists,” see 39 Campbell L. Rev. 205 (2017).

CASE NOTES

One basic purpose behind this Chapter is to provide notice to defendant that he is being prosecuted for some substantive felony as a recidivist. Failure to provide such notice where the State accepts a guilty plea on the substantive felony charge may well vitiate the plea itself as not being knowingly entered with full understanding of the consequences. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977); State v. Winstead, 78 N.C. App. 180, 336 S.E.2d 721, 1985 N.C. App. LEXIS 4273 (1985).

Applicability of G.S. 14-7.4 to this Section. —

G.S. 14-7.4 by its own terms specifically applies to conviction of habitual felons under this section. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337, 1990 N.C. App. LEXIS 1064 (1990).

“Habitual felon” is a status, and once attained, such status is never lost. State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771, 1996 N.C. App. LEXIS 722 (1996), aff'd, 346 N.C. 165 , 484 S.E.2d 525, 1997 N.C. LEXIS 206 (1997).

Habitual Felon Indictment Ancillary to Indictment for Substantive Felony. —

The Habitual Felons Act does not authorize an independent proceeding to determine defendant’s status as a habitual felon separate from the prosecution of a predicate substantive felony; the habitual felon indictment is necessarily ancillary to the indictment for the substantive felony. State v. Cheek, 339 N.C. 725 , 453 S.E.2d 862, 1995 N.C. LEXIS 93 (1995).

An habitual felon indictment must be supported by a valid indictment on a substantive charge. State v. Winstead, 78 N.C. App. 180, 336 S.E.2d 721, 1985 N.C. App. LEXIS 4273 (1985).

The habitual felon indictment must be filed prior to the defendant’s pleading in the substantive felony case. State v. Little, 126 N.C. App. 262, 484 S.E.2d 835, 1997 N.C. App. LEXIS 364 (1997).

Age or Date of Birth Not Required in Indictment. —

Habitual offender indictment was not required to allege defendant’s age or date or birth. State v. Sinclair, 191 N.C. App. 485, 663 S.E.2d 866, 2008 N.C. App. LEXIS 1473 (2008).

Specific Reference to Predicate Felony Not Required. —

Nothing in the plain wording of this section requires a specific reference to the predicate substantive felony in the habitual felon indictment. State v. Cheek, 339 N.C. 725 , 453 S.E.2d 862, 1995 N.C. LEXIS 93 (1995).

Nothing in the plain wording of G.S. 14-7.3 requires a specific reference to the predicate substantive felony in an habitual felon indictment. The statute requires that the State give a defendant notice of the felonies on which it is relying to support the habitual felon charge; nowhere in the statute does it mention the predicate substantive felony or require it to be included in the indictment. State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830, 2003 N.C. App. LEXIS 1767 (2003).

Separate Indictment Charging Defendant as Habitual Felon Contemplated. —

Properly construed, this Chapter clearly contemplates that when one who has already attained the status of an habitual felon is indicted for the commission of another felony, that person may then be also indicted in a separate bill as being an habitual felon. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977).

New Indictment Required. —

State did not satisfy the requirements of G.S. 14-7.3 , and the trial court lacked the authority to sentence defendant as an habitual felon for a later offense, where the State had not obtained a new habitual felon indictment, and defendant did not agree to waive the same and admit his status pursuant to a bill of information; while the State previously charged defendant with being an habitual felon, defendant was already convicted of the substantive felonies associated with those bills of information, and a new indictment was required. State v. Bradley, 175 N.C. App. 234, 623 S.E.2d 85, 2005 N.C. App. LEXIS 2745 (2005), writ denied, 360 N.C. 365 , 630 S.E.2d 189, 2006 N.C. LEXIS 175 (2006).

Valid Indictment Procured After Continuance. —

Trial court did not lack subject matter jurisdiction to sentence defendant as a habitual felon based on the original habitual felon indictment being marked “not a true bill” by the grand jury foreman because the trial court retained jurisdiction at the moment it discovered the State’s habitual felon indictment error; the State sought to rectify its mistake by requesting a continuance and procuring a valid indictment; and the trial court’s grant of a continuance did not so offended the public sense of fair play that it constituted an abuse of discretion. State v. Hodge, 270 N.C. App. 110, 840 S.E.2d 285, 2020 N.C. App. LEXIS 130 (2020).

Defendant Received Sufficient Notice That He Was Being Prosecuted as Habitual Felon. —

Where a superseding habitual felon indictment was filed three months before defendant’s trial, defendant received sufficient notice under G.S. 14-7.3 that he was being prosecuted as an habitual felon. State v. Cogdell, 2004 N.C. App. LEXIS 717 (N.C. Ct. App. May 4, 2004), op. withdrawn, 2004 N.C. App. LEXIS 823 (N.C. Ct. App. May 12, 2004), sub. op., 165 N.C. App. 368, 599 S.E.2d 570, 2004 N.C. App. LEXIS 1397 (2004).

Separate Indictments Valid. —

This section does not require that the indictment charging defendant with the underlying felony must also charge that defendant is an habitual felon; where defendant was charged in one bill of indictment with felonious possession of cocaine, and in a separate bill of indictment with being an habitual felon, the indictments were not invalid. State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251, 1993 N.C. App. LEXIS 1124 (1993).

A separate habitual felon indictment is not required for each substantive felony indictment. State v. Patton, 342 N.C. 633 , 466 S.E.2d 708, 1996 N.C. LEXIS 26 (1996).

Defendant failed in his argument that the indictment for the principal felony could not support defendant’s sentencing as a habitual felon because a separate indictment charged defendant with habitual felony status; the indictments were sufficient, as G.S. 14-7.3 did not require the indictment charging defendant with the underlying felony to also charge defendant as a habitual felon. State v. Peoples, 167 N.C. App. 63, 604 S.E.2d 321, 2004 N.C. App. LEXIS 2055 (2004).

Defective Indictment. —

Since it is clear from the indictment that prior to its return all the substantive felony proceedings upon which it is based had been prosecuted to completion and there was no pending felony prosecution to which the habitual felon proceeding could attach as an ancillary proceeding, the indictment on motion of the defendant should have been dismissed for failure of the bill to charge a cognizable offense. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977).

Where the habitual felon indictment did not refer to any underlying felony with which defendant was charged, defendant’s indictment as an habitual offender was fatally flawed and the trial court erred in enhancing defendant’s sentence on that basis. State v. Farrior, 117 N.C. App. 429, 451 S.E.2d 332, 1994 N.C. App. LEXIS 1257 (1994).

State of North Carolina did not meet the requirements of the habitual felon indictment because the State did not provide an offense date for the crime the State convicted defendant for committing. Therefore, defendant’s habitual felon indictment, defective on its face, had to be vacated, and the case remanded for a new sentencing hearing. State v. Langley, 254 N.C. App. 186, 803 S.E.2d 166, 2017 N.C. App. LEXIS 447 (2017), rev'd, 371 N.C. 389 , 817 S.E.2d 191, 2018 N.C. LEXIS 624 (2018).

Defendant’s habitual felon indictment was fatally defective where the indictment did not allege an offense date for the crime of which defendant was convicted, i.e., common law robbery. State v. Forte, 260 N.C. App. 245, 817 S.E.2d 764, 2018 N.C. App. LEXIS 662 (2018).

Trivial Amendment to Sufficient Indictment Irrelevant. —

The amending of three indictments to include the words “in North Carolina” was irrelevant where the original indictment itself was not flawed and thus any attempt to correct a perceived flaw was harmless for the amendment could not have in any way prejudiced defendant. State v. Montford, 137 N.C. App. 495, 529 S.E.2d 247, 2000 N.C. App. LEXIS 431 , cert. denied, 353 N.C. 275 , 546 S.E.2d 386, 2000 N.C. LEXIS 953 (2000).

Trial court did not err in allowing, pursuant to G.S. 15A-923(e), the State of North Carolina to amend a habitual felon indictment under G.S. 14-7.3 , by expanding the date of the commission of a prior felony offense because the discrepancy between the indictment and the proof at trial as to the date of defendant’s prior offense was not a fatal variance. State v. Taylor, 203 N.C. App. 448, 691 S.E.2d 755, 2010 N.C. App. LEXIS 650 (2010), cert. dismissed, 366 N.C. 408 , 736 S.E.2d 180, 2012 N.C. LEXIS 1170 (2012).

New Indictment. —

Where there had been no entry of judgment or sentence as to the substantive underlying felony, until judgment was entered upon defendant’s conviction of that substantive underlying felony, there remained a pending, uncompleted felony prosecution to which a new habitual felon indictment could attach. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477, 1994 N.C. App. LEXIS 26 (1994).

Charges in Separate Counts of Same Indictment. —

Although defendant was charged with the underlying felony, common law robbery, and with being an habitual felon, in separate counts of the same bill of indictment rather than in separate bills of indictment this procedure did not violate this section. State v. Young, 120 N.C. App. 456, 462 S.E.2d 683, 1995 N.C. App. LEXIS 892 (1995).

The statute does not require that the indictment charging a defendant with habitual felon status be contained in a separate bill of indictment. State v. Young, 120 N.C. App. 456, 462 S.E.2d 683, 1995 N.C. App. LEXIS 892 (1995).

Denial of Motion to Quash Indictment. —

Where defendant had previously stipulated to a prior conviction and did not argue a lack of notice of the hearing at trial, the state’s requested corrections to the indictment as to the date and county of the prior conviction did not constitute an amendment; thus, the trial court did not err in denying defendant’s motion to quash. State v. Lewis, 162 N.C. App. 277, 590 S.E.2d 318, 2004 N.C. App. LEXIS 130 (2004).

Indictment Held Sufficient. —

Indictment charging defendant with being an habitual felon which expressly set forth each of the underlying felonies of which defendant was charged and convicted as being in violation of an enumerated “North Carolina General Statute,” contained a sufficient statement of the name of the state or sovereign against whom the felonies were committed to comport with the requirements of this section. State v. Williams, 99 N.C. App. 333, 393 S.E.2d 156, 1990 N.C. App. LEXIS 501 (1990).

A habitual felon indictment citing the defendant’s conviction for “the felony of breaking and entering buildings in violation of N.C.G.S. [G.S.] 14-54” was sufficient because the indictment clearly stated defendant had been convicted of felony breaking and entering, contained the date the felony was committed, the court in which he was convicted, the number assigned to the case, and the date of the conviction and, therefore, provided him with adequate notice of the underlying felony. State v. Briggs, 137 N.C. App. 125, 526 S.E.2d 678, 2000 N.C. App. LEXIS 255 (2000).

Habitual felon indictment complied with this section. State v. Smith, 112 N.C. App. 512, 436 S.E.2d 160, 1993 N.C. App. LEXIS 1138 (1993).

Defendant’s convictions of robbery with a firearm, G.S. 14-87(a), and having attained the status of habitual felon, G.S. 14-7.3 , were affirmed; the State was only required to prove that defendant claimed that he possessed a firearm during his robberies of two stores. State v. Jarrett, 167 N.C. App. 336, 607 S.E.2d 661, 2004 N.C. App. LEXIS 2173 (2004), cert. denied, 359 N.C. 324 , 611 S.E.2d 840, 2005 N.C. LEXIS 278 (2005).

Defendant contended that because the specific name of the controlled substance was not alleged in the indictment, the indictment was not sufficient to charge habitual felon; however, the habitual felon indictment alleging a prior conviction for felony possession with intent to manufacture, sell, or deliver a Schedule I controlled substance, in addition to two other felony convictions, was sufficient notice under North Carolina and case law. Additionally, because there was no defect in the indictment, the trial court had jurisdiction to sentence defendant as an habitual felon under G.S. 14-7.1 and G.S. 14-7.3 . State v. McIlwaine, 169 N.C. App. 397, 610 S.E.2d 399, 2005 N.C. App. LEXIS 607 (2005).

Where defendant did not dispute that his habitual felony indictment included each element specified in G.S. 14-7.3 , the indictment was facially valid; defendant’s claim that there was a variance between the indictment and the proof offered in support of the indictment should have been raised by a motion to dismiss and was waived by his guilty plea. State v. McGee, 175 N.C. App. 586, 623 S.E.2d 782, 2006 N.C. App. LEXIS 180 (2006).

Although there was a discrepancy as to the date of defendant’s prior felony offense in the indictment and the judgment which was entered into evidence, defendant’s possession of a firearm by a felon and habitual felon indictments were sufficient under G.S. 14-415.1(c) and G.S. 14-7.3 because the discrepancy was not material and did not affect a substantial right. Furthermore, the discrepancy in the indictments and the proof at trial was not a fatal variance because the date on which defendant committed the prior felony was not an essential element of either offense. State v. Taylor, 203 N.C. App. 448, 691 S.E.2d 755, 2010 N.C. App. LEXIS 650 (2010), cert. dismissed, 366 N.C. 408 , 736 S.E.2d 180, 2012 N.C. LEXIS 1170 (2012).

Habitual offender indictment returned against defendant contained all of the information required by this section and provided defendant with adequate notice of the bases for the State’s contention that defendant attained habitual felon status, alleging that the three prior felony offenses upon which the State relied were committed on three specified dates, they were committed against the State of North Carolina, and defendant was convicted of those offenses in the Superior Court, Pitt County. State v. Langley, 371 N.C. 389 , 817 S.E.2d 191, 2018 N.C. LEXIS 624 (2018).

Running of 20-Day Period. —

Under this section, the 20-day period runs from the time the grand jury returns an indictment on the habitual felon charge. State v. Winstead, 78 N.C. App. 180, 336 S.E.2d 721, 1985 N.C. App. LEXIS 4273 (1985).

Use of Prior Convictions. —

Defendant was erroneously sentenced as a habitual offender because one of the prior convictions relied upon was a conviction from New Jersey for an offense that was not a felony in New Jersey. State v. Moncree, 188 N.C. App. 221, 655 S.E.2d 464, 2008 N.C. App. LEXIS 94 (2008).

Reference to Predicate Felony Not Made. —

Trial court erred in instructing the jury that it could find defendant was a habitual offender based on his prior conviction for selling cocaine where the indictment did not allege that conviction as a predicate offense. State v. Jefferies, 243 N.C. App. 455, 776 S.E.2d 872, 2015 N.C. App. LEXIS 807 (2015).

Collateral Attack. —

Defendant cannot collaterally attack a prior conviction which is the basis of a habitual felon charge. State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771, 1996 N.C. App. LEXIS 722 (1996), aff'd, 346 N.C. 165 , 484 S.E.2d 525, 1997 N.C. LEXIS 206 (1997).

Defendant’s collateral attack questioning the validity of his original conviction for the habitual felon sentence was impermissible under G.S. 14-7.3 . State v. Flemming, 171 N.C. App. 413, 615 S.E.2d 310, 2005 N.C. App. LEXIS 1260 (2005).

Scope of Review. —

When appealing the use of a prior conviction as a partial basis for an habitual felon indictment, inquiries are permissible only to determine whether the State gave defendant proper notice that he was being prosecuted for some substantive felony as a recidivist pursuant to this section. State v. Creason, 123 N.C. App. 495, 473 S.E.2d 771, 1996 N.C. App. LEXIS 722 (1996), aff'd, 346 N.C. 165 , 484 S.E.2d 525, 1997 N.C. LEXIS 206 (1997).

Arraignment Not Proper. —

Court erred in failing to dismiss the habitual misdemeanor assault charge where defendant was not properly arraigned; the State introduced no evidence of five prior convictions and failed to present evidence of an essential element of the charge requiring that the conviction for habitual misdemeanor assault be vacated. State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461, 2003 N.C. App. LEXIS 1799 (2003).

Trial court lacked jurisdiction over an habitual felon charge because, at the time the habitual felon indictment was returned, the jury bribery crimes for which defendant was tried and found guilty had not yet occurred. The habitual felon indictment was therefore not ancillary to the jury bribery charges. State v. Ross, 221 N.C. App. 185, 727 S.E.2d 370, 2012 N.C. App. LEXIS 719 (2012), writ denied, 366 N.C. 570 , 738 S.E.2d 369, 2013 N.C. LEXIS 231 (2013).

§ 14-7.4. Evidence of prior convictions of felony offenses.

In all cases where a person is charged under the provisions of this Article with being an habitual felon, the record or records of prior convictions of felony offenses shall be admissible in evidence, but only for the purpose of proving that said person has been convicted of former felony offenses. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.

History. 1967, c. 1241, s. 4; 1981, c. 179, s. 12.

CASE NOTES

Applicability. —

This section by its own terms specifically applies to conviction of habitual felons under G.S. 14-7.3 . State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337, 1990 N.C. App. LEXIS 1064 (1990).

The “prima facie evidence” provisions of this section do not unconstitutionally shift the burden of proof to the defendant on the essential element of identity but merely create a presumption that allows the jury to decide whether the elements of the crime have been proven beyond a reasonable doubt. State v. Hairston, 137 N.C. App. 352, 528 S.E.2d 29, 2000 N.C. App. LEXIS 308 (2000).

Statute is Permissive. —

Plain reading of G.S. 14-7.4 and the habitual felon jurisprudence makes clear that the statute is permissive and does not exclude methods of proof that are not specifically delineated in the Habitual Offender Act. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189, 2018 N.C. App. LEXIS 740 (2018), aff'd in part, 375 N.C. 232 , 846 S.E.2d 688, 2020 N.C. LEXIS 689 (2020).

Proof of Prior Convictions. —

Use of true copies of the court record to prove prior convictions under the Habitual Felons Act, as opposed to certified copies, was not improper. State v. Gant, 153 N.C. App. 136, 568 S.E.2d 909, 2002 N.C. App. LEXIS 1072 (2002).

Where defendant, in pleading nolo contendere, stipulated to three of defendant’s eight prior convictions, but the State failed to prove any of the remaining convictions as required by G.S. 15A-1340.14(f) and G.S. 14-7.4 , the trial court erred under G.S. 15A-1340.13(b) and G.S. 15A-1340.14(a) in sentencing defendant as a prior record level III offender based on prior convictions that were not proven at trial; the sentence, despite being agreed to by defendant, had to be authorized by G.S. 15A-1340.17 . State v. Quick, 170 N.C. App. 166, 611 S.E.2d 864, 2005 N.C. App. LEXIS 897 (2005).

Defendant’s collateral attack questioning the validity of his original conviction for the habitual felon sentence was impermissible under G.S. 14-7.3 . State v. Flemming, 171 N.C. App. 413, 615 S.E.2d 310, 2005 N.C. App. LEXIS 1260 (2005).

Admission of exhibits containing both the dates of defendant’s prior offenses and resulting convictions for three felonies were properly admitted into evidence and supported defendant’s conviction as an habitual offender. State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754, 2005 N.C. App. LEXIS 1897 (2005).

State presented substantial evidence that defendant had attained the status of habitual felon as each of the three judgments introduced by the State listed the name of defendant as the same name by which defendant was charged in the latest indictment and defendant introduced no evidence to rebut that prima facie showing by the State. State v. Tyson, 189 N.C. App. 408, 658 S.E.2d 285, 2008 N.C. App. LEXIS 652 (2008).

Printouts from the Automated Criminal/Infraction System (ACIS) database were admissible evidence to prove a prior felony under the Habitual Felon Act and, thus, were not barred by the best evidence rule because the clerk of court, who maintained the physical court records, testified that the printout was a certified true copy of the information in ACIS; the best evidence rule does not bar the admission of the printout merely because the original judgment was unaccounted for at trial. State v. Waycaster, 260 N.C. App. 684, 818 S.E.2d 189, 2018 N.C. App. LEXIS 740 (2018), aff'd in part, 375 N.C. 232 , 846 S.E.2d 688, 2020 N.C. LEXIS 689 (2020).

Notes Need Not Be in Identical Order. —

Requirement that document bear “same name as that by which the defendant is charged” does not mean that names must be identical in order for document to be prima facie evidence that defendant named in document is same as defendant before court. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337, 1990 N.C. App. LEXIS 1064 (1990).

A faxed certified copy of a criminal record was admissible under this section to prove defendant’s status as an habitual felon; the exhibit’s reliability was bolstered below by defendant’s own admission under oath that he indeed was convicted of the crimes listed therein. State v. Wall, 141 N.C. App. 529, 539 S.E.2d 692, 2000 N.C. App. LEXIS 1412 (2000), cert. denied, 566 S.E.2d 480, 2002 N.C. LEXIS 674 (N.C. 2002).

Facsimile copy of judgment and probation order were sufficient as proof of defendant’s third felony under G.S. 14-7.4 . State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648, 2005 N.C. App. LEXIS 1011 (2005).

Names Held to Be “Same Name”. —

Names “Martin Bernard Petty” and “Martin Petty” are the “same name” for purposes of this section. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337, 1990 N.C. App. LEXIS 1064 (1990).

Where the documents introduced to prove defendant’s prior conviction for breaking and entering were all identified as accurate copies of the originals, and each of the documents indicated that defendant’s name was “Michael Hodge,” for purposes of this section “Michael Hodge” and “William Michael Hodge” were the same name, and the documents at issue therefore constituted prima facie evidence that the defendant named in the prior case was the same as the defendant before the court. State v. Hodge, 112 N.C. App. 462, 436 S.E.2d 251, 1993 N.C. App. LEXIS 1124 (1993).

Age Discrepancy. —

Any discrepancy between actual age of defendant at time of conviction and his age as reflected on record of conviction goes to weight of evidence and not its admissibility. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337, 1990 N.C. App. LEXIS 1064 (1990).

Nolo Contendere Plea Entered Prior to Enactment of Chapter 15A. —

Use of conviction resulting from nolo contendere plea entered prior to enactment of G.S. 15A-1022 as one of three prior felony convictions required by G.S. 14-7.1 to support charge of being habitual felon was improper, as rule at that time was that nolo contendere plea was neither admission nor adjudication of guilt. State v. Petty, 100 N.C. App. 465, 397 S.E.2d 337, 1990 N.C. App. LEXIS 1064 (1990).

Failure to Redact Additional Felony Conviction. —

Trial court’s failure to redact an additional felony conviction at defendant’s habitual felon proceeding was not erroneous, as the trial court instructed the jury to limit its consideration of the evidence to three specific felony convictions only, for which certified copies of the prior judgments were admitted. State v. Blakney, 233 N.C. App. 516, 756 S.E.2d 844, 2014 N.C. App. LEXIS 358 (2014).

The trial court erred by sentencing the defendant as an habitual felon where the issue was not submitted to the jury and the record did not show that he pleaded guilty to being an habitual felon; a stipulation, in the absence of an inquiry by the trial court to establish a record of a guilty plea, is not tantamount to a guilty plea. State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694, 2001 N.C. App. LEXIS 136 (2001).

Plain Error Not Found. —

It was not plain error for the trial court to admit copies of defendant’s previous judgments during his habitual felon proceedings because defendant did not challenge the authenticity of the certified judgment sheets or the veracity of the convictions. State v. McNeil, 165 N.C. App. 777, 600 S.E.2d 31, 2004 N.C. App. LEXIS 1516 (2004), aff'd, 359 N.C. 800 , 617 S.E.2d 271, 2005 N.C. LEXIS 841 (2005).

§ 14-7.5. Verdict and judgment.

When an indictment charges an habitual felon with a felony as above provided and an indictment also charges that said person is an habitual felon as provided herein, the defendant shall be tried for the principal felony as provided by law. The indictment that the person is an habitual felon shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal felony or other felony with which he is charged. If the jury finds the defendant guilty of a felony, the bill of indictment charging the defendant as an habitual felon may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of habitual felon were a principal charge. If the jury finds that the defendant is an habitual felon, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not an habitual felon, the trial judge shall pronounce judgment on the principal felony or felonies as provided by law.

History. 1967, c. 1241, s. 5.

Legal Periodicals.

For survey of 1977 criminal law, see 56 N.C.L. Rev. 965 (1978).

CASE NOTES

The proceeding by which the State seeks to establish that defendant is an habitual felon is necessarily ancillary to a pending prosecution for the “principal,” or substantive, felony. The Chapter does not authorize a proceeding independent from the prosecution of some substantive felony for the sole purpose of establishing a defendant’s status as an habitual felon. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977).

Trial court erred in denying defendant’s request to inform the jury during the first phase of the trial that, if convicted, defendant was subject to punishment as a class C felon due to defendant’s status as an habitual felon; while defendant had the right under G.S. 7A-97 to inform the jury of the punishment that could be imposed upon conviction of the crime for which defendant was being tried, this did not permit defendant to inform the jury of the maximum sentence as a result of an habitual felon adjudication. and G.S. 14-7.5 , providing that an habitual felon trial was to be held separate from the principal felony trial, precluded instruction on the habitual offender penalty. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606, 2003 N.C. App. LEXIS 1539 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382, 2004 U.S. LEXIS 2256 (2004).

A defendant charged as a habitual felon is not defending himself against the predicate substantive felony, but against a charge that he has at least three prior felony convictions; the trial for the substantive felony is held first, and only after defendant is convicted of the substantive felony is the habitual felon indictment revealed to, and considered by, the jury. State v. Cheek, 339 N.C. 725 , 453 S.E.2d 862, 1995 N.C. LEXIS 93 (1995).

Habitual Offender Statute Attaches Upon Third Conviction. —

Defendant became an habitual offender when he was convicted of the third offense; however the jury’s role in convicting the defendant as an habitual offender was still essential since it assured that the State had proven the fact of the three qualifying convictions to the jury’s satisfaction. State v. Brown, 146 N.C. App. 590, 553 S.E.2d 428, 2001 N.C. App. LEXIS 976 (2001).

Error in Sentencing Defendant as Habitual Felon. —

Trial court erred by sentencing defendant as a habitual felon in violation of G.S. 14-7.5 since the record did not show that his status as a habitual felon was submitted to the jury or that he entered a plea of guilty under G.S. 15A-1022 to having the status of a habitual felon. State v. Jester, 249 N.C. App. 101, 790 S.E.2d 368, 2016 N.C. App. LEXIS 864 (2016).

This section applies only to the indictment and not to the erroneous admission of oral evidence on cross-examination. State v. Thompson, 141 N.C. App. 698, 543 S.E.2d 160, 2001 N.C. App. LEXIS 20 (2001).

This Section Applies Only to the Indictment and Not to the Erroneous Admission of Oral Evidence. —

Where the State during cross-examination asked defendant about his prior conviction for being a habitual felon, G.S. 14-7.5 was not violated because the State’s questions did not refer to a pending habitual felon indictment against defendant but simply served to elicit information on defendant’s criminal record. State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519, 2003 N.C. App. LEXIS 1820 (2003).

Principal Felony Indictment Need Not Mention Recidivist Status. —

The legislature did not intend the first indictment notifying the defendant of the substantive charge against him to include a mention of the defendant’s recidivist status. State v. Keyes, 56 N.C. App. 75, 286 S.E.2d 861, 1982 N.C. App. LEXIS 2296 (1982).

This section does not give criminal defendant the right to inform the jury, during a principal felony trial, of the possible maximum sentence which might be imposed upon him at an habitual felon adjudication if he is found guilty of the principal offenses. State v. Wilson, 139 N.C. App. 544, 533 S.E.2d 865, 2000 N.C. App. LEXIS 988 (2000).

Jury Need Not Be Re-empaneled. —

When, as contemplated by this section, the same jury considers both the principal felony and the question of defendant’s recidivism, it is not necessary to re-empanel a jury once that jury has been properly empaneled pursuant to G.S. 15A-1216 . State v. Todd, 313 N.C. 110 , 326 S.E.2d 249, 1985 N.C. LEXIS 1520 (1985).

Pending, Uncompleted Felony Conviction Required. —

Where there had been no entry of judgment or sentence as to the substantive underlying felony, until judgment was entered upon defendant’s conviction of that substantive underlying felony, there remained a pending, uncompleted felony prosecution to which a new habitual felon indictment could attach. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477, 1994 N.C. App. LEXIS 26 (1994).

New Habitual Felon Indictment Did Not Result in Former Jeopardy. —

Although habitual felon indictment was joined for trial with one underlying charge, the indictment was quashed before defendant was placed on trial upon the charge that he was an habitual felon. The subsequent indictment alleging defendant’s status as an habitual felon was still part of, and ancillary to, the prosecution of defendant for an underlying felony, for which no judgment had been entered, and there was no former jeopardy. State v. Oakes, 113 N.C. App. 332, 438 S.E.2d 477, 1994 N.C. App. LEXIS 26 (1994).

The trial court erred by sentencing the defendant as an habitual felon where the issue was not submitted to the jury and the record did not show that he pleaded guilty to being an habitual felon; a stipulation, in the absence of an inquiry by the trial court to establish a record of a guilty plea, is not tantamount to a guilty plea. State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694, 2001 N.C. App. LEXIS 136 (2001).

Trial court erred in finding defendant guilty of being a habitual felon based on defendant’s stipulation to his status as such, where the court failed to establish a record showing that defendant’s stipulation was a guilty plea to the habitual felon charge. State v. Edwards, 150 N.C. App. 544, 563 S.E.2d 288, 2002 N.C. App. LEXIS 589 (2002).

Trial court erred in sentencing defendant as an habitual felon because the issue was not submitted to the jury, and the record did not establish that defendant pled to that charge; defendant’s mere stipulation to predicate felonies was insufficient. State v. Wilkins, 225 N.C. App. 492, 737 S.E.2d 791, 2013 N.C. App. LEXIS 133 (2013).

Motion to Dismiss Properly Denied. —

Defendant’s motion to dismiss a habitual felon charge was properly denied because, during defendant’s trial for failing to register as sex offender, the State introduced evidence of defendant’s conviction in 1987 for first-degree sexual offense and during habitual felon phase, the State introduced evidence of defendant’s convictions for two other felonies; in a habitual felon proceeding, there was no need to reintroduce evidence from hearing for principal offense, and the introduction of the three felonies was enough for jury to decide that defendant had attained the status of habitual felon. State v. Hoskins, 225 N.C. App. 177, 736 S.E.2d 631, 2013 N.C. App. LEXIS 66 (2013).

Prejudicial Error from Testimony on Habitual Status. —

Defendant was entitled to a new trial because the trial court’s failure to intervene and instruct the jury to disregard evidence of defendant’s habitual felon indictment was prejudicial error following a police officer’s interrupted testimony that defendant had “an outstanding grand jury indictment for a habitual” had the effect of revealing to the jury that defendant faced an indictment as a habitual offender. State v. Rogers, 236 N.C. App. 201, 762 S.E.2d 511, 2014 N.C. App. LEXIS 966 (2014).

§ 14-7.6. Sentencing of habitual felons.

When an habitual felon as defined in this Article commits any felony under the laws of the State of North Carolina, the felon must, upon conviction or plea of guilty under indictment as provided in this Article (except where the felon has been sentenced as a Class A, B1, or B2 felon) be sentenced at a felony class level that is four classes higher than the principal felony for which the person was convicted; but under no circumstances shall an habitual felon be sentenced at a level higher than a Class C felony. In determining the prior record level, convictions used to establish a person’s status as an habitual felon shall not be used. Sentences imposed under this Article shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.

History. 1967, c. 1241, s. 6; 1981, c. 179, s. 13; 1993, c. 538, s. 9; 1994, Ex. Sess., c. 22, ss. 15, 16; c. 24, s. 14(b); 1993 (Reg. Sess., 1994), c. 767, s. 16; 2011-192, s. 3(d).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

Effect of Amendments.

Session Laws 2011-192, s. 3(d), effective December 1, 2011, in the first sentence, substituted the language beginning “be sentenced at a felony class level” through to the end for “be sentenced as a Class C felon.” For applicability, see Editor’s note.

Legal Periodicals.

For comment discussing the North Carolina Fair Sentencing Act, see 60 N.C.L. Rev. 631 (1982).

For note, “Ramifications of the 1997 DWI/Felony Prior Record Level Amendment to the Structured Sentencing Act: State of North Carolina v. Tanya Watts Gentry,” see 22 Campbell L. Rev. 211 (1999).

CASE NOTES

Being an habitual felon is not a crime, but is a status the attaining of which subjects a person thereafter convicted of a crime to an increased punishment for that crime. The status itself, standing alone, will not support a criminal sentence. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977).

Being an habitual felon is not a substantive crime. State v. Thomas, 82 N.C. App. 682, 347 S.E.2d 494, 1986 N.C. App. LEXIS 2607 (1986), cert. denied, 320 N.C. 637 , 360 S.E.2d 102, 1987 N.C. LEXIS 2376 (1987).

Being an habitual felon is not a crime but is a status. The status itself, standing alone, will not support a criminal sentence, and a court may not treat the violation of the Habitual Felon Act as a substantive offense. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721, 1988 N.C. App. LEXIS 273 (1988).

Defendant was sentenced only once as required by the habitual felon statute, G.S. 14-7.6 ; he was not convicted of being an habitual felon, since the status being an habitual felon was not a separate offense, rather his status as an habitual felon enhanced his conviction of the crime attempting to obtain property by false pretenses. State v. Ledwell, 171 N.C. App. 314, 614 S.E.2d 562, 2005 N.C. App. LEXIS 1212 (2005), cert. dismissed, 699 S.E.2d 639, 2010 N.C. LEXIS 1101 (N.C. 2010).

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. The effect of such a proceeding is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past. State v. Allen, 292 N.C. 431 , 233 S.E.2d 585, 1977 N.C. LEXIS 1103 (1977).

The only reason for establishing that an accused is an habitual felon is to enhance the punishment which would otherwise be appropriate for the substantive felony which he has allegedly committed while in such a status. State v. Thomas, 82 N.C. App. 682, 347 S.E.2d 494, 1986 N.C. App. LEXIS 2607 (1986), cert. denied, 320 N.C. 637 , 360 S.E.2d 102, 1987 N.C. LEXIS 2376 (1987); State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721, 1988 N.C. App. LEXIS 273 (1988).

Rule of lenity, requiring that an ambiguous statute not be interpreted to impose a penalty on an individual which had not been clearly stated by the legislature, did not apply to the Habitual Felon Act, G.S. 14-7.6 , because there was no ambiguity in that statute’s directive as to the use of prior convictions. State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208, 2002 N.C. App. LEXIS 1515 (2002), cert. denied, 540 U.S. 846, 124 S. Ct. 121, 157 L. Ed. 2d 84, 2003 U.S. LEXIS 5783 (2003).

Basis of Sentencing Habitual Felon. —

In sentencing a habitual felon, the duration of the sentence is based not only on the defendant’s most recent offense, but on his past criminal conduct as well. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107, 1985 N.C. App. LEXIS 3922 (1985).

In the context of a defendant convicted of drug trafficking and subject to enhanced sentencing as an habitual felon, the two statutes complement each other and address different means of enhancing punishment; in essence, a drug trafficker who is not an habitual felon is subject to enhanced sentencing pursuant to G.S. 90-95(h)(4), while a drug trafficker who has also attained habitual felon status is subject to even more enhanced sentencing pursuant to G.S. 14-7.6 . State v. Eaton, 210 N.C. App. 142, 707 S.E.2d 642, 2011 N.C. App. LEXIS 319 (2011).

Use of Prior Convictions. —

Defendant’s prior convictions will either serve to establish his status as an habitual felon pursuant to G.S. 15-7.1 or to increase his prior record level pursuant to G.S. 15A-1340.14(b)(1-5); the existence of prior convictions may not be used to increase a defendant’s sentence pursuant to both provisions at the same time. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430, 1996 N.C. App. LEXIS 470 (1996).

By using the defendant’s five felony convictions in the habitual felon indictment, the State was precluded from using the same five convictions to increase defendant’s prior record level points; accordingly, the trial court erred in using one conviction used to establish defendant’s habitual felon status to enhance defendant’s sentence. State v. Lee, 150 N.C. App. 701, 564 S.E.2d 597, 2002 N.C. App. LEXIS 650 (2002).

Legislature did not intend to limit a prosecutor’s discretion in choosing which of defendant’s prior felony convictions to base an habitual offender prosecution on, so defendant’s argument that the prosecutor chose to base the prosecution on defendant’s less serious felonies, so that defendant’s more serious felonies would be available for purposes of enhancing defendant’s sentence, was overruled. State v. Cates, 154 N.C. App. 737, 573 S.E.2d 208, 2002 N.C. App. LEXIS 1515 (2002), cert. denied, 540 U.S. 846, 124 S. Ct. 121, 157 L. Ed. 2d 84, 2003 U.S. LEXIS 5783 (2003).

State, in attempting to prove defendant’s prior record level, incorrectly relied on defendant’s same two cocaine possession convictions that were also used to establish his habitual felon status. State v. Miller, 168 N.C. App. 572, 608 S.E.2d 565, 2005 N.C. App. LEXIS 345 (2005).

State’s use of defendant’s prior misdemeanor convictions to enhance a sentence already enhanced under the Habitual Felon Act, G.S. 14-7.1 et seq., did not constitute cruel and unusual punishment. State v. Hall, 174 N.C. App. 353, 620 S.E.2d 723, 2005 N.C. App. LEXIS 2397 (2005).

Trial court’s use of defendant’s prior driving while impaired convictions in determining defendant’s sentence as a Level II offender did not violate G.S. 15A-1340.16(d) as defendant’s prior convictions were not used as aggravating factors; instead, the trial court added points to defendant’s prior record pursuant to G.S. 15A-1340.14 , which in contrast to using the same prior convictions to establish a person’s status as an habitual felon, was not expressly prohibited. Further, the use of the same prior convictions introduced by the State as evidence of malice during trial to increase defendant’s prior record level at sentencing did not violate the plain language of G.S. 15A-1340.01 . State v. Bauberger, 176 N.C. App. 465, 626 S.E.2d 700, 2006 N.C. App. LEXIS 523 , aff'd, 361 N.C. 105 , 637 S.E.2d 536, 2006 N.C. LEXIS 1285 (2006).

Trial court properly assigned one prior conviction point in sentencing because attempted felonious larceny, which was the present offense, was a lesser included offense of felonious larceny, which was a prior conviction, and thus all of the elements of the present offense were included in the prior conviction for G.S. 15A-1340.14(b)(6) purposes; further, G.S. 14-72 related solely to punishment for the separate crime of larceny, did not change the nature of the crime, and the elements remained the same. Thus, for purposes of G.S. 15A-1340.14(b)(6), it did not matter under what provision of G.S. 14-72 the prior larceny convictions were established. State v. Ford, 195 N.C. App. 321, 672 S.E.2d 689, 2009 N.C. App. LEXIS 113 (2009).

Where, after defendant was convicted of obtaining property by false pretenses and financial card fraud, he agreed to enter a plea agreement to 68 additional charged felonies and four misdemeanors, he was erroneously sentenced at a prior record level VI, because the record established that he should have been sentenced at a prior record level V, since under G.S. 14-7.6 , defendant’s trafficking in marijuana conviction should not have been included for one point on the prior record worksheet. State v. Flint, 199 N.C. App. 709, 682 S.E.2d 443, 2009 N.C. App. LEXIS 1570 (2009).

Trial court did not err in using defendant’s 1988 felonious breaking or entering conviction for the purpose of both supporting the possession of a firearm by a felon charge, G.S. 14-415.1 , and calculating defendant’s prior record level because the possession of a firearm by a felon charge was a separate substantive offense from the prior felony conviction upon which defendant’s status as a felon was based and, as such, no “double counting” occurred in determining defendant’s prior record under G.S. 14-7.6 . State v. Best, 214 N.C. App. 39, 713 S.E.2d 556, 2011 N.C. App. LEXIS 1638 (2011).

Trial court did not err in determining that defendant was a prior record level IV offender; after the trial court used one of the 9 January 2002 convictions for habitual felon determination, it could still use the other 9 January 2002 conviction to calculate defendant’s prior record level. State v. Williams, 215 N.C. App. 412, 715 S.E.2d 553, 2011 N.C. App. LEXIS 1888 (2011).

Habitual Felon and Habitual Misdemeanor Assault. —

Fact that the offense of felony assault inflicting serious bodily injury was used as a predicate offense to charge both habitual misdemeanor assault and habitual felon did not render an indictment defective; however, that same offense could not be used to determine defendant’s prior record level at sentencing. State v. Sydnor, 246 N.C. App. 353, 782 S.E.2d 910, 2016 N.C. App. LEXIS 292 (2016).

No Contest Plea. —

“Conviction” within the context of this section includes a judgment entered upon a no contest plea, as long as the statutory procedures in G.S. 15A-1022 for entering a no contest plea are followed by the trial court in entering the plea. State v. Jones, 151 N.C. App. 317, 566 S.E.2d 112, 2002 N.C. App. LEXIS 745 (2002), cert. denied, 540 U.S. 842, 124 S. Ct. 111, 157 L. Ed. 2d 76, 2003 U.S. LEXIS 5726 (2003).

Prosecutor’s Discretion Whether to Charge Defendant as Habitual Felon. —

Because a prosecutor had the discretion whether to prosecute defendant as a habitual felon or not and had the authority to dismiss charges against defendant at any stage of the proceedings under G.S. 15A-931(a), the prosecutor could only seek habitual felon status under G.S. 14-7.2 and G.S. 14-7.6 as to a possession of a firearm charge and not as to attempted robbery and robbery charges. State v. Murphy, 193 N.C. App. 236, 666 S.E.2d 880, 2008 N.C. App. LEXIS 1762 (2008).

Because defendant pled guilty to having attained the status of an habitual felon, he waived all defenses other than the sufficiency of the indictment, and he did not challenge the sufficiency of the indictment; he was not allowed to attack the validity of his underlying convictions. State v. Ford, 195 N.C. App. 321, 672 S.E.2d 689, 2009 N.C. App. LEXIS 113 (2009).

Sentence on Conviction as Habitual Felon. —

Upon a conviction as an habitual felon, the court must sentence the defendant for the underlying felony as a Class C felon. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721, 1988 N.C. App. LEXIS 273 (1988).

Defendant’s claim failed, where defendant argued that because financial identity fraud was punishable as a class H felony, defendant could not be sentenced at a greater level regardless of defendant’s habitual felon status; because defendant was a habitual felon who was convicted of the felonies of failure to appear and financial identity fraud, defendant was to be sentenced as a class C felon under G.S. 14-7.6 . State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606, 2003 N.C. App. LEXIS 1539 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382, 2004 U.S. LEXIS 2256 (2004).

Lack of force and delay in the reporting of larceny did not support a constitutional challenge to defendant’s sentence of 107 to 138 months as a habitual felon under G.S. 14-7.6 based on excessiveness. State v. Hager, 203 N.C. App. 704, 692 S.E.2d 404, 2010 N.C. App. LEXIS 727 (2010).

Sentence Upon Subsequent Conviction. —

An habitual felon who is convicted of a subsequent felony is sentenced as a Class C felon which has a presumptive term of 15 years and a maximum term of life imprisonment. State v. Patton, 119 N.C. App. 229, 458 S.E.2d 230, 1995 N.C. App. LEXIS 411 (1995), rev'd, 342 N.C. 633 , 466 S.E.2d 708, 1996 N.C. LEXIS 26 (1996).

There is nothing in this section and G.S. 15A-1340.14(d) to prohibit the court from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level. State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670, 1996 N.C. App. LEXIS 796 (1996).

This section did not prohibit defendant’s felony sentence from being enhanced on the grounds that he was an habitual felon when elements necessary to prove that he was an habitual felon were the same as those elements which were used to support the underlying felony. State v. Misenheimer, 123 N.C. App. 156, 472 S.E.2d 191, 1996 N.C. App. LEXIS 574 , cert. denied, 344 N.C. 441 , 476 S.E.2d 128, 1996 N.C. LEXIS 607 (1996).

Imposition of a 30-year sentence for a habitual felon who under the facts could have received a maximum sentence of life imprisonment under G.S. 14-1.1 is within constitutional limits and does not constitute cruel and unusual punishment. State v. Aldridge, 76 N.C. App. 638, 334 S.E.2d 107, 1985 N.C. App. LEXIS 3922 (1985).

Sentence Was Proportionate and Not Cruel and Unusual. —

Defendant had a lengthy criminal record and was sentenced accordingly for G.S. 14-100 false pretenses, which sentence was enhanced by his status of being an habitual offender under G.S. 14-7.6 ; the sentence of 142 months to 180 months was within the range for a Class C level V felon, was not disproportionate to the defendant’s 25-year history of criminal convictions, and was not cruel and unusual under U.S. Const. amends. VIII, XIV. State v. Ledwell, 171 N.C. App. 314, 614 S.E.2d 562, 2005 N.C. App. LEXIS 1212 (2005), cert. dismissed, 699 S.E.2d 639, 2010 N.C. LEXIS 1101 (N.C. 2010).

Separate Judgment and Conviction Held Error. —

In prosecution for assault with a deadly weapon upon a law enforcement officer and being an habitual felon, the trial court erred in sentencing defendant in a separate judgment and commitment as an habitual felon. State v. Penland, 89 N.C. App. 350, 365 S.E.2d 721, 1988 N.C. App. LEXIS 273 (1988).

Trial court erred in entering judgment and commitment for defendant under the habitual offender case number since the error was clerical; however, the court was entitled to fix the error and reversal was not necessary. State v. McBride, 173 N.C. App. 101, 618 S.E.2d 754, 2005 N.C. App. LEXIS 1897 (2005).

Increased Sentence on Resentencing Upheld. —

Where defendant’s case was remanded on appeal on grounds that defendant was improperly given a separate sentence in an habitual felon court, it was not error for the trial court to increase defendant’s sentence on resentencing from three years to 15 years. State v. Kirkpatrick, 89 N.C. App. 353, 365 S.E.2d 640, 1988 N.C. App. LEXIS 277 (1988).

Prior Crimes Relevant to Habitual Felon Status and to Aggravating Factors. —

Evidence of a kidnapping defendant’s prior crimes was properly used to establish the status of a habitual felon as well as to establish the aggravating factor of prior felony convictions to increase the presumptive sentence of the underlying felony. State v. Roper, 328 N.C. 337 , 402 S.E.2d 600, 1991 N.C. LEXIS 251 , cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232, 1991 U.S. LEXIS 5029 (1991).

But Status and Underlying Felonies Are Not Separate Factors. —

The sentencing court can rely on certain prior criminal convictions to aggravate a current sentence; however, the court cannot consider as separate aggravating factors both the status of being an habitual felon and the felonies underlying the habitual felon adjudication. State v. Kirkpatrick, 345 N.C. 451 , 480 S.E.2d 400, 1997 N.C. LEXIS 7 (1997).

Trial court erred in sentencing defendant for the status of habitual felony offender alone and because the error was not clerical in nature, the reviewing court could not correct the error and defendant’s sentence was vacated. State v. Taylor, 156 N.C. App. 172, 576 S.E.2d 114, 2003 N.C. App. LEXIS 76 (2003).

Trial court did not err in using three felony convictions to increase defendant’s prior record level where each of those convictions had been consolidated for judgment with a felony conviction used to establish habitual felon status. State v. Truesdale, 123 N.C. App. 639, 473 S.E.2d 670, 1996 N.C. App. LEXIS 796 (1996).

Construction with Other Laws. —

This section does not prohibit the use of convictions used to establish the defendant’s status as a habitual offender to assign points pursuant to G.S. 15A-1340(b)(6) and (b)(7), because these provisions address the gravity and circumstances of the offense, rather than the mere existence of a prior offense. State v. Bethea, 122 N.C. App. 623, 471 S.E.2d 430, 1996 N.C. App. LEXIS 470 (1996).

Trial court did not err in considering defendant’s prior adjudication as an habitual felon as a nonstatutory aggravating factor when sentencing defendant for uttering an instrument bearing a forged endorsement. State v. Kirkpatrick, 123 N.C. App. 86, 472 S.E.2d 371, 1996 N.C. App. LEXIS 561 (1996), aff'd, 345 N.C. 451 , 480 S.E.2d 400, 1997 N.C. LEXIS 7 (1997).

Consecutive Sentencing Not Mandatory. —

Case had to be remanded for resentencing because the trial court imposed consecutive sentences based on a misapprehension of this statute as the trial court sentenced defendant as an habitual felon to three consecutive terms of imprisonment for his three common law robbery convictions because the trial court incorrectly believed that the law required consecutive sentences on habitual felon judgments; however, based on the language of this statute, the trial court was only required to impose a sentence consecutively to any sentence being served by defendant, but defendant was not already serving a sentence at the time of the sentencing hearing; thus, the trial court was incorrect in its belief that consecutive sentences were mandatory. State v. Duffie, 241 N.C. App. 88, 772 S.E.2d 100, 2015 N.C. App. LEXIS 377 (2015).

Concurrent Sentence Improper. —

State had no right to appeal from a concurrent sentence because the sentence was governed by G.S. 14-7.6 , which was outside the scope of appeal of G.S. 15A-1445(a)(3)(c); however, because the concurrent sentence was contrary to G.S. 14-7.6 , under N.C. R. App. P. 2 the court would treat the appeal as a mandamus petition, vacate the judgment, and remand for resentencing. State v. Watkins, 189 N.C. App. 784, 659 S.E.2d 58, 2008 N.C. App. LEXIS 687 (2008).

Sentence Held Proper. —

Sentence imposed on defendant of 84 months to 110 months imprisonment, where defendant had a prior record level of III, was not grossly disproportionate under the Eighth Amendment; defendant’s sentence was as a Class C felony under G.S. 14-7.6 and his sentence was in the mitigated sentencing range of G.S. 15A-1340.17 . State v. Flemming, 171 N.C. App. 413, 615 S.E.2d 310, 2005 N.C. App. LEXIS 1260 (2005).

Trial court did not err in ordering that defendant’s term of imprisonment for the sentence at issue began at the expiration of two prior consecutive sentences where G.S, 14-7.6 required that sentences run consecutively, and thus, the discretion under G.S. 15A-1354(a) was inapposite. State v. Jarman, 238 N.C. App. 128, 767 S.E.2d 370, 2014 N.C. App. LEXIS 1276 (2014).

Article 2B. Violent Habitual Felons.

§ 14-7.7. Persons defined as violent habitual felons.

  1. Any person who has been convicted of two violent felonies in any federal court, in a court of this or any other state of the United States, or in a combination of these courts is declared to be a violent habitual felon. For purposes of this Article, “convicted” means the person has been adjudged guilty of or has entered a plea of guilty or no contest to the violent felony charge, and judgment has been entered thereon when such action occurred on or after July 6, 1967. This Article does not apply to a second violent felony unless it is committed after the conviction or plea of guilty or no contest to the first violent felony. Any felony to which a pardon has been extended shall not, for the purposes of this Article, constitute a felony. The burden of proving a pardon shall rest with the defendant, and this State shall not be required to disprove a pardon. Conviction as an habitual felon shall not, for purposes of this Article, constitute a violent felony.
  2. For purposes of this Article, “violent felony” includes the following offenses:
    1. All Class A through E felonies.
    2. Any repealed or superseded offense substantially equivalent to the offenses listed in subdivision (1).
    3. Any offense committed in another jurisdiction substantially similar to the offenses set forth in subdivision (1) or (2).

History. 1994, Ex. Sess., c. 22, ss. 31, 32; 2000-155, s. 14.

Legal Periodicals.

For note, “Interpreting Begay After Sykes: Why Reckless Offenses Should be Eligible to Qualify as Violent Felonies Under the ACCA’s Residual Clause,” see 63 Duke L. J. 955 (2014).

CASE NOTES

Constitutionality. —

The violent habitual felon statute is not unconstitutional on its face. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818, 1997 N.C. App. LEXIS 345 (1997), cert. denied, 354 N.C. 72 , 553 S.E.2d 208, 2001 N.C. LEXIS 863 (2001).

Punishment as a violent habitual felon does not constitute double jeopardy. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734, 1999 N.C. App. LEXIS 1378 (1999), cert. dismissed, 367 N.C. 515 , 762 S.E.2d 453, 2014 N.C. LEXIS 693 (2014), writ denied, 368 N.C. 598 , 780 S.E.2d 556, 2015 N.C. LEXIS 1205 (2015).

Statute Is Not an Ex Post Facto Law. —

This section is not an ex post facto law pursuant to N.C. Const., Art. I, § 16; defendant’s violent habitual felon status would only enhance his punishment for the second degree murder conviction in the instant case, and not his punishment for the underlying voluntary manslaughter felony, and although the violent habitual felon statute was not enacted until 1994, perpetrators were on notice between 1967 and 1994, pursuant to a habitual felon statute, that certain crimes could be used to enhance punishment for later crimes. State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d 655, 2003 N.C. App. LEXIS 373 (2003).

Separate Indictments. —

Where defendant was charged in one bill of indictment with assault with a deadly weapon with intent to kill inflicting serious injury, and in a separate bill of being a violent habitual felon, defendant’s argument that he was not legally charged as a violent habitual felon because the charge was in a separate indictment was without merit. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818, 1997 N.C. App. LEXIS 345 (1997), cert. denied, 354 N.C. 72 , 553 S.E.2d 208, 2001 N.C. LEXIS 863 (2001).

Contents of Indictment. —

A habitual felon indictment is not required to specifically refer to the predicate substantive felony because the defendant is not defending himself against the predicate substantive felony, but against the charge that he has been previously convicted of the required number of felonies. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818, 1997 N.C. App. LEXIS 345 (1997), cert. denied, 354 N.C. 72 , 553 S.E.2d 208, 2001 N.C. LEXIS 863 (2001).

Violent Felony. —

Assault with a deadly weapon inflicting serious injury is also a violent felony for which a defendant may be punished as an habitual violent offender. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818, 1997 N.C. App. LEXIS 345 (1997), cert. denied, 354 N.C. 72 , 553 S.E.2d 208, 2001 N.C. LEXIS 863 (2001).

Evidence of Prior Violent Felonies. —

The State established prima facie evidence of the defendant’s prior violent felonies, where it placed into evidence certified copies of the defendant’s previous convictions for armed robbery. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906, 1998 N.C. App. LEXIS 1392 (1998).

Defendant’s 1992 conviction in California of the North Carolina equivalent of an “attempt” to commit a second degree sexual offense, although classified as a Class H felony at the time, was classified as a Class D felony and could be used for the purposes of a conviction under this section. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734, 1999 N.C. App. LEXIS 1378 (1999), cert. dismissed, 367 N.C. 515 , 762 S.E.2d 453, 2014 N.C. LEXIS 693 (2014), writ denied, 368 N.C. 598 , 780 S.E.2d 556, 2015 N.C. LEXIS 1205 (2015).

Defendant’s convictions of second degree murder and of being a violent habitual felon were affirmed; the trial court properly conducted a hearing as contemplated by G.S. 15A-1002(b) before its ruling that defendant was competent to stand trial where defendant was given adequate notice of the hearing, the trial court properly denied defendant’s request for a jury instruction on self defense, the evidence showed that the victim did not carry a gun, that no gun was found on or near the victim, and that defendant never claimed that he saw the victim with a gun, and the trial court properly considered a previous voluntary manslaughter conviction in determining violent habitual felon status. State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d 655, 2003 N.C. App. LEXIS 373 (2003).

Collateral Estoppel. —

Where defendant was acquitted on a charge of being a violent habitual felon, his later trial on the same charge, involving a different primary offense but the same two predicate offenses, was barred by collateral estoppel. State v. Safrit, 145 N.C. App. 541, 551 S.E.2d 516, 2001 N.C. App. LEXIS 727 (2001).

§ 14-7.8. Punishment.

When a person is charged by indictment with the commission of a violent felony and is also charged with being a violent habitual felon as defined in G.S. 14-7.7 , the person must, upon conviction, be sentenced in accordance with this Article, except in those cases where the death penalty is imposed.

History. 1994, Ex. Sess., c. 22, s. 31.

§ 14-7.9. Charge of violent habitual felon.

An indictment that charges a person who is a violent habitual felon within the meaning of G.S. 14-7.7 with the commission of any violent felony must, in order to sustain a conviction of violent habitual felon, also charge that the person is a violent habitual felon. The indictment charging the defendant as a violent habitual felon shall be separate from the indictment charging the defendant with the principal violent felony. An indictment that charges a person with being a violent habitual felon must set forth the date that prior violent felonies were committed, the name of the state or other sovereign against whom the violent felonies were committed, the dates of convictions of the violent felonies, and the identity of the court in which the convictions took place. A defendant charged with being a violent habitual felon in a bill of indictment shall not be required to go to trial on that charge within 20 days after the finding of a true bill by the grand jury unless the defendant waives this 20-day period.

History. 1994, Ex. Sess., c. 22, s. 31.

CASE NOTES

Name of State. —

The name of the state against whom the violent felonies were committed need not be expressly stated if the indictment sufficiently indicates the state. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818, 1997 N.C. App. LEXIS 345 (1997), cert. denied, 354 N.C. 72 , 553 S.E.2d 208, 2001 N.C. LEXIS 863 (2001).

Replacement of Technically Deficient Indictment. —

Due process was not violated where the State obtained a second indictment charging the defendant as a violent habitual felon after the first indictment was technically-deficient because the defendant had not been sentenced for his armed robbery conviction and because the first indictment placed him on notice that he was being tried as a violent habitual felon. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906, 1998 N.C. App. LEXIS 1392 (1998).

Held Sufficient. —

Indictments were sufficient where each one listed two prior conviction for felonies in Florida that met the requirements under North Carolina law for violent habitual felon status, and each specified a different one of the current offenses as an underlying substantive charge. State v. Floyd, 148 N.C. App. 290, 558 S.E.2d 237, 2002 N.C. App. LEXIS 13 (2002).

Deficient Indictment. —

Court erred in failing to dismiss the habitual misdemeanor assault charge where defendant was not properly arraigned; the State introduced no evidence of five prior convictions and failed to present evidence of an essential element of the charge requiring that the conviction for habitual misdemeanor assault be vacated. State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461, 2003 N.C. App. LEXIS 1799 (2003).

§ 14-7.10. Evidence of prior convictions of violent felonies.

In all cases where a person is charged under this Article with being a violent habitual felon, the records of prior convictions of violent felonies shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of former violent felonies. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.

History. 1994, Ex. Sess., c. 22, s. 31.

CASE NOTES

Prima Facie Case. —

Trial court properly denied defendant’s motion to dismiss a violent habitual felon indictment against defendant; there was substantial evidence that defendant had two prior felony convictions because, even though one of the judgments listed the convicted person’s race as black while defendant was white, this section created the requirements for a statutory prima facie case, and since the prosecution met that standard, any discrepancies in the details contained in the judgments were for the jury to consider in weighing the evidence; the trial court also declined to dismiss the charge on grounds that one of the convictions did not qualify for use as an underlying felony, as voluntary manslaughter was a superseded offense pursuant to G.S. 14-7.7(b)(2), as the offense had been upgraded by the General Assembly to a class D felony. State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d 655, 2003 N.C. App. LEXIS 373 (2003).

Certified Copies of Conviction Sufficient. —

The State established prima facie evidence of the defendant’s prior violent felonies, where it placed into evidence certified copies of the defendant’s previous convictions for armed robbery. State v. Mewborn, 131 N.C. App. 495, 507 S.E.2d 906, 1998 N.C. App. LEXIS 1392 (1998).

§ 14-7.11. Verdict and judgment.

When an indictment charges a violent habitual felon with a violent felony as provided in this Article and an indictment also charges that the person is a violent habitual felon as provided in this Article, the defendant shall be tried for the principal violent felony as provided by law. The indictment that the person is a violent habitual felon shall not be revealed to the jury unless the jury finds that the defendant is guilty of the principal violent felony or another violent felony with which the defendant is charged. If the jury finds the defendant guilty of a violent felony, the bill of indictment charging the defendant as a violent habitual felon may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of violent habitual felon were a principal charge. If the jury finds that the defendant is a violent habitual felon, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not a violent habitual felon, the trial judge shall pronounce judgment on the principal violent felony or felonies as provided by law.

History. 1994, Ex. Sess., c. 22, s. 31.

CASE NOTES

Improper Arraignment. —

Court erred in failing to dismiss the habitual misdemeanor assault charge where defendant was not properly arraigned; the State introduced no evidence of five prior convictions and failed to present evidence of an essential element of the charge requiring that the conviction for habitual misdemeanor assault be vacated. State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461, 2003 N.C. App. LEXIS 1799 (2003).

§ 14-7.12. Sentencing of violent habitual felons.

A person who is convicted of a violent felony and of being a violent habitual felon must, upon conviction (except where the death penalty is imposed), be sentenced to life imprisonment without parole. Life imprisonment without parole means that the person will spend the remainder of the person’s natural life in prison. The sentencing judge may not suspend the sentence and may not place the person sentenced on probation. Sentences for violent habitual felons imposed under this Article shall run consecutively with and shall commence at the expiration of any other sentence being served by the person.

History. 1994, Ex. Sess., c. 22, s. 31.

CASE NOTES

Constitutionality. —

The violent habitual felon statute is not unconstitutional on its face. State v. Mason, 126 N.C. App. 318, 484 S.E.2d 818, 1997 N.C. App. LEXIS 345 (1997), cert. denied, 354 N.C. 72 , 553 S.E.2d 208, 2001 N.C. LEXIS 863 (2001).

The term “life imprisonment without parole” falls within the meaning of the constitutional term “imprisonment,” so the sentence was authorized by the Constitution. State v. Allen, 346 N.C. 731 , 488 S.E.2d 188, 1997 N.C. LEXIS 483 (1997).

Purpose. —

Former G.S. 15A-1380.5 allowed a defendant not already benefited by the merciful hand of the Governor to have his case reviewed by a superior court judge; it increases a defendant’s chance of parole prior to the end of his natural life. State v. Allen, 346 N.C. 731 , 488 S.E.2d 188, 1997 N.C. LEXIS 483 (1997).

§§ 14-7.13 through 14-7.19.

Reserved for future codification purposes.

Article 2C. Continuing Criminal Enterprise.

§ 14-7.20. Continuing criminal enterprise.

  1. Except as otherwise provided in subsection (a1) of this section, any person who engages in a continuing criminal enterprise shall be punished as a Class H felon and in addition shall be subject to the forfeiture prescribed in subsection (b) of this section. (a1) Any person who engages in a continuing criminal enterprise where the felony violation required by subdivision (c)(1) of this section is a violation of G.S. 14-10.1 shall be punished as a Class D felon and, in addition, shall be subject to the forfeiture prescribed in subsection (b) of this section.
  2. Any person who is convicted under subsection (a) or (a1) of this section of engaging in a continuing criminal enterprise shall forfeit to the State of North Carolina:
    1. The profits obtained by the person in the enterprise, and
    2. Any of the person’s interest in, claim against, or property or contractual rights of any kind affording a source of influence over, such enterprise.
  3. For purposes of this section, a person is engaged in a continuing criminal enterprise if:
    1. The person violates any provision of this Chapter, the punishment of which is a felony; and
    2. The violation is a part of a continuing series of violations of this Chapter:
      1. Which are undertaken by the person in concert with five or more other persons with respect to whom the person occupies a position of organizer, a supervisory position, or any other position of management; and
      2. From which the person obtains substantial income or resources.

History. 1995, c. 378, s. 1; 2012-38, s. 2.

Effect of Amendments.

Session Laws 2012-38, s. 2, effective December 1, 2012, in subsection (a), substituted “Except as otherwise provided in subsection (a1) of this section, any” for “Any”; added subsection (a1); and inserted “or (a1)” in the introductory paragraph subsection (b). For applicability, see editor’s note.

§§ 14-7.21 through 14-7.24.

Reserved for future codification purposes.

Article 2D. Habitual Breaking and Entering Status Offense.

§ 14-7.25. Definitions.

The following definitions apply in this Article:

  1. “Breaking and entering.” — The term means any of the following felony offenses:
    1. First degree burglary (G.S. 14-51).
    2. Second degree burglary (G.S. 14-51).
    3. Breaking out of dwelling house burglary (G.S. 14-53).
    4. Breaking or entering buildings generally (G.S. 14-54(a)). d1. Breaking or entering with intent to terrorize or injure an occupant of the building (G.S. 14-54(a1)).
    5. Breaking or entering a building that is a place of religious worship (G.S. 14-54.1).
    6. Any repealed or superseded offense substantially equivalent to any of the offenses in sub-subdivision a., b., c., d., or e. of this subdivision.
    7. Any offense committed in another jurisdiction substantially similar to any of the offenses in sub-subdivision a., b., c., d., or e. of this subdivision.
  2. “Convicted.” — The person has been adjudged guilty of or has entered a plea of guilty or no contest to the offense of breaking and entering.
  3. “Status offender.” — A person who is a habitual breaking and entering status offender as described in G.S. 14-7.26 .

History. 2011-192, s. 3(a); 2017-176, s. 3(a).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

Session Laws 2017-176, s. 3(b), made subdivision (1)d1 as added by Session Laws 2017-176, s. 3(a), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-176, s. 3(a), added subdivision (1)d1. For effective date and applicability, see editor’s note.

§ 14-7.26. Habitual breaking and entering status offender.

Any person who has been convicted of or pled guilty to one or more prior felony offenses of breaking and entering in any federal court or state court in the United States, or combination thereof, is guilty of the status offense of habitual breaking and entering and may be charged with that status offense pursuant to this Article.

This Article does not apply to a second felony offense of breaking and entering unless it is committed after the conviction of the first felony offense of breaking and entering. For purposes of this Article, felony offenses of breaking and entering committed before the person is 18 years of age shall not constitute more than one felony of breaking and entering. Any felony to which a pardon has been extended shall not, for the purposes of this Article, constitute a felony offense of breaking and entering.

History. 2011-192, s. 3(a).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

§ 14-7.27. Punishment.

When any person is charged with a felony offense of breaking and entering and is also charged with being a status offender as defined in G.S. 14-7.26 , the person must, upon conviction, be sentenced and punished as a status offender as provided by this Article.

History. 2011-192, s. 3(a).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

§ 14-7.28. Charge of habitual breaking and entering status offender.

  1. The district attorney, in his or her discretion, may charge a person with the status offense of habitual breaking and entering pursuant to this Article. To sustain a conviction of a person as a status offender, the person must be charged separately for the felony offense of breaking and entering and for the habitual breaking and entering status offense. The indictment charging the defendant as a status offender shall be separate from the indictment charging the person with the principal felony offense of breaking and entering.
  2. An indictment that charges a person with being a status offender must set forth the date that the prior felony offense of breaking and entering was committed, the name of the state or other sovereign against whom the felony offense of breaking and entering was committed, the dates that the plea of guilty was entered into or conviction returned in the felony offense of breaking and entering, and the identity of the court in which the plea or conviction took place. No defendant charged with being a status offender in a bill of indictment shall be required to go to trial on the charge within 20 days of the finding of a true bill by the grand jury; provided, the defendant may waive this 20-day period.

History. 2011-192, s. 3(a).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

§ 14-7.29. Evidence of prior convictions of breaking and entering.

In all cases in which a person is charged under the provisions of this Article with being a status offender, the record of prior conviction of the felony offense of breaking and entering shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of a former felony offense of breaking and entering. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court and shall be prima facie evidence of the facts set out therein.

History. 2011-192, s. 3(a).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

§ 14-7.30. Verdict and judgment.

  1. When an indictment charges a person with a felony offense of breaking and entering as provided by this Article and an indictment also charges that the person is a status offender, the defendant shall be tried for the principal offense of breaking and entering as provided by law. The indictment that the person is a status offender shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal felony offense of breaking and entering with which the defendant is charged.
  2. If the jury finds the defendant guilty of the felony offense of breaking and entering, the bill of indictment charging the defendant as a status offender may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of status offender were a principal charge.
  3. If the jury finds that the defendant is a status offender, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not a status offender, the trial judge shall pronounce judgment on the principal felony offense of breaking and entering as provided by law.

History. 2011-192, s. 3(a).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

§ 14-7.31. Sentencing of status offenders.

  1. When a status offender as defined in this Article commits a felony offense of breaking and entering under the laws of the State of North Carolina, the status offender must, upon conviction or plea of guilty under indictment as provided in this Article, be sentenced as a Class E felon.
  2. In determining the prior record level, any conviction used to establish a person’s status as a status offender shall not be used. Sentences imposed under this Article shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.
  3. A conviction as a status offender under this Article shall not constitute commission of a felony for the purpose of either Article 2A or Article 2B of Chapter 14 of the General Statutes.

History. 2011-192, s. 3(a).

Editor’s Note.

Session Laws 2011-192, s. 3(e), provides: “This section becomes effective December 1, 2011, and applies to any offense that occurs on or after that date and that is the principal felony offense for a charge of either the status offenses of habitual breaking and entering or habitual felon. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-192, s. 9, provides: “This act shall be known as ‘The Justice Reinvestment Act of 2011’.”

§§ 14-7.32 through 14-7.34.

Reserved for future codification purposes.

Article 2E. Armed Habitual Felon.

§ 14-7.35. Definitions.

The following definitions apply in this Article:

  1. “Convicted.” — The person has been adjudged guilty of or has entered a plea of guilty or no contest to the firearm-related felony.
  2. “Firearm-related felony.” — Any felony committed by a person in which the person used or displayed a firearm while committing the felony.
  3. “Status offender.” — A person who is an armed habitual felon as described in G.S. 14-7.36 .

History. 2013-369, s. 26.

Cross References.

As to requirement that sentence court include in judgment whether firearm was used, see G.S. 15A-1382.2 .

Editor’s Note.

Session Laws 2013-369, s. 28, made this Article effective October 1, 2013, and applicable to offenses committed on or after that date, and further provides: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2013-369, s. 26, enacted this Article as Article 3D. It has been renumbered as Article 2E at the direction of the Revisor of Statutes.

§ 14-7.36. Armed habitual felon.

Any person who has been convicted of or pled guilty to one or more prior firearm-related felony offenses in any federal court or state court in the United States, or combination thereof, is guilty of the status offense of armed habitual felon and may be charged with that status offense pursuant to this Article.

This Article does not apply to a second firearm-related felony unless it is committed after the conviction of a firearm-related felony in which evidence of the person’s use, display, or threatened use or display of a firearm was needed to prove an element of the felony or was needed to establish the requirement for an enhanced or aggravated sentence. For purposes of this Article, firearm-related felonies committed before the person is 18 years of age shall not constitute more than one firearm-related felony. Any firearm-related felony to which a pardon has been extended shall not, for the purposes of this Article, constitute a firearm-related felony.

History. 2013-369, s. 26.

Legal Periodicals.

For article, “Incorporating Collateral Consequences Into Criminal Procedure,” see 54 Wake Forest L. Rev. 1 (2019).

§ 14-7.37. Punishment.

When any person is charged with a firearm-related felony and is also charged with being a status offender, the person must, upon conviction, be sentenced and punished as a status offender as provided by this Article.

History. 2013-369, s. 26.

§ 14-7.38. Charge of status offense as an armed habitual felon.

  1. The district attorney, in the district attorney’s discretion, may charge a person as a status offender pursuant to this Article. To sustain a conviction of a person as a status offender, the person must be charged separately for the principal firearm-related felony and for the status offense of armed habitual felon. The indictment charging the defendant as a status offender shall be separate from the indictment charging the person with the principal firearm-related felony.
  2. An indictment that charges a person with being a status offender must set forth all of the following information regarding the prior firearm-related felony:
    1. The date the offense was committed.
    2. The name of the state or other sovereign against whom the offense was committed.
    3. The dates that the plea of guilty was entered into or conviction returned in the offense.
    4. The identity of the court in which the plea or conviction took place.
  3. No defendant charged with being a status offender in a bill of indictment shall be required to go to trial on the charge within 20 days of the finding of a true bill by the grand jury; provided, the defendant may waive this 20-day period.

History. 2013-369, s. 26.

§ 14-7.39. Evidence of prior convictions of firearm-related felonies.

In all cases in which a person is charged under the provisions of this Article with being a status offender, the record of prior conviction of the firearm-related felony shall be admissible in evidence, but only for the purpose of proving that the person has been convicted of a former firearm-related felony. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court and shall be prima facie evidence of the facts set out therein.

History. 2013-369, s. 26.

§ 14-7.40. Verdict and judgment.

  1. When an indictment charges a person with a firearm-related felony as provided by this Article and an indictment also charges that the person is a status offender, the defendant shall be tried for the principal firearm-related felony as provided by law. The indictment that the person is a status offender shall not be revealed to the jury unless the jury shall find that the defendant is guilty of the principal firearm-related felony with which the defendant is charged.
  2. If the jury finds the defendant guilty of the principal firearm-related felony, and it is found as provided in this section that (i) the person committed the felony by using, displaying, or threatening the use or display of a firearm or deadly weapon and (ii) the person actually possessed the firearm or deadly weapon about his or her person, the bill of indictment charging the defendant as a status offender may be presented to the same jury. Except that the same jury may be used, the proceedings shall be as if the issue of status offender were a principal charge.
  3. If the jury finds that the defendant is a status offender, the trial judge shall enter judgment according to the provisions of this Article. If the jury finds that the defendant is not a status offender, the trial judge shall pronounce judgment on the principal firearm-related felony offense as provided by law.

History. 2013-369, s. 26.

§ 14-7.41. Sentencing of armed habitual felon.

  1. A person who is convicted of a firearm-related felony and is also convicted of the status offense must, upon conviction or plea of guilty under indictment as provided in this Article, be sentenced as a Class C felon (except where the felon has been sentenced as a Class A, B1, or B2 felon). However, in no case shall the person receive a minimum term of imprisonment of less than 120 months. The court may not suspend the sentence and may not place the person sentenced on probation.
  2. In determining the prior record level, any conviction used to establish a person’s status as an armed habitual felon shall not be used. Sentences imposed under this Article shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced under this section.
  3. A conviction as a status offender under this Article shall not constitute commission of a felony for the purpose of either Article 2A or Article 2B of Chapter 14 of the General Statutes.
  4. A sentence imposed under this Article may not be enhanced pursuant to G.S. 15A-1340.16 A.

History. 2013-369, s. 26.

Article 2F. Crimes by Unmanned Aircraft Systems.

§ 2F. Crimes committed by use of unmanned aircraft systems.

All crimes committed by use of an unmanned aircraft system, as defined in G.S. 15A-300.1 , while in flight over this State shall be governed by the laws of this State, and the question of whether the conduct by an unmanned aircraft system while in flight over this State constitutes a crime by the owner of the unmanned aircraft system shall be determined by the laws of this State.

History. 2014-100, 34.30(b).

Cross References.

As to operation of unmanned aircraft systems, see G.S. 63-95 .

CASE NOTES

Issue Submitted to Jury. —

Trial court erred in sentencing defendant as a habitual felon when the issue was not submitted to the jury. State v. Cannon, 254 N.C. App. 794, 804 S.E.2d 199, 2017 N.C. App. LEXIS 608 (2017), aff'd, 370 N.C. 487 , 809 S.E.2d 567, 2018 N.C. LEXIS 51 (2018).

Subchapter II. Offenses Against The State.

Article 3. Rebellion.

§ 14-8. Rebellion against the State.

If any person shall incite, set on foot, assist or engage in a rebellion or insurrection against the authority of the State of North Carolina or the laws thereof, or shall give aid or comfort thereto, every person so offending in any of the ways aforesaid shall be guilty of a felony, and shall be punished as a Class F felon.

History. Const., art. 4, s. 5; 1861, c. 18; 1866, c. 64; 1868, c. 60, s. 2; Code, s. 1106; Rev., s. 3437; C.S., s. 4178; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1122; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-9. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 71(1).

Cross References.

As to structured sentencing of persons convicted of crimes, see G.S. 15A-1340.10 et seq.

§ 14-10. Secret political and military organizations forbidden.

If any person, for the purpose of compassing or furthering any political object, or aiding the success of any political party or organization, or resisting the laws, shall join or in any way connect or unite himself with any oath-bound secret political or military organization, society or association of whatsoever name or character; or shall form or organize or combine and agree with any other person or persons to form or organize any such organization; or as a member of any secret political or military party or organization shall use, or agree to use, any certain signs or grips or passwords, or any disguise of the person or voice, or any disguise whatsoever for the advancement of its object, and shall take or administer any extrajudicial oath or other secret, solemn pledge, or any like secret means; or if any two or more persons, for the purpose of compassing or furthering any political object, or aiding the success of any political party or organization, or circumventing the laws, shall secretly assemble, combine or agree together, and the more effectually to accomplish such purposes, or any of them, shall use any certain signs, or grips, or passwords, or any disguise of the person or voice, or other disguise whatsoever, or shall take or administer any extrajudicial oath or other secret, solemn pledge; or if any persons shall band together and assemble to muster, drill or practice any military evolutions except by virtue of the authority of an officer recognized by law, or of an instructor in institutions or schools in which such evolutions form a part of the course of instruction; or if any person shall knowingly permit any of the acts and things herein forbidden to be had, done or performed on his premises, or on any premises under his control; or if any person being a member of any such secret political or military organization shall not at once abandon the same and separate himself entirely therefrom, every person so offending shall be guilty of a Class 1 misdemeanor.

History. 1868-9, c. 267; 1870-1, c. 133; 1871-2, c. 143; Code, s. 1095; Rev., s. 3439; C.S., s. 4180; 1993, c. 539, s. 10; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For subsequent statutes relating to prohibited secret societies and activities, see G.S. 14-12.2 et seq.

CASE NOTES

Ku Klux Klan Held Ineligible for School Exemption. —

It is beyond peradventure that the school exemption to this section’s prohibition on engaging in military evolutions does not apply to a group like the Carolina Knights of the Ku Klux Klan that is engaged in practicing guerilla warfare aimed at subverting the government. Person v. Miller, 854 F.2d 656, 1988 U.S. App. LEXIS 11237 (4th Cir. 1988), cert. denied, 489 U.S. 1011, 109 S. Ct. 1119, 103 L. Ed. 2d 182, 1989 U.S. LEXIS 840 (1989).

There was ample evidence from which the jury could find that defendant violated this section where the chief military officer of the State listed those organizations authorized to conduct military operations and the list did not include the defendant’s organization and he explicitly stated that neither defendant nor defendant’s agent, was to his knowledge authorized by law to conduct military operations in North Carolina and also testified that in addition to high school and college ROTC programs, the State has only one accredited military academy. Person v. Miller, 854 F.2d 656, 1988 U.S. App. LEXIS 11237 (4th Cir. 1988), cert. denied, 489 U.S. 1011, 109 S. Ct. 1119, 103 L. Ed. 2d 182, 1989 U.S. LEXIS 840 (1989).

Article 3A. Terrorism.

§ 14-10.1. Terrorism.

  1. As used in this section, the term “act of violence” means a violation of G.S. 14-17 ; a felony punishable pursuant to G.S. 14-18 ; any felony offense in this Chapter that includes an assault, or use of violence or force against a person; any felony offense that includes either the threat or use of any explosive or incendiary device; or any offense that includes the threat or use of a nuclear, biological, or chemical weapon of mass destruction.
  2. A person is guilty of the separate offense of terrorism if the person commits an act of violence with the intent to do either of the following:
    1. Intimidate the civilian population at large, or an identifiable group of the civilian population.
    2. Influence, through intimidation, the conduct or activities of the government of the United States, a state, or any unit of local government.
  3. A violation of this section is a felony that is one class higher than the offense which is the underlying act of violence, except that a violation is a Class B1 felony if the underlying act of violence is a Class A or Class B1 felony offense. A violation of this section is a separate offense from the underlying offense and shall not merge with other offenses.
  4. All real and personal property of every kind used or intended for use in the course of, derived from, or realized through an offense punishable pursuant to this Article shall be subject to lawful seizure and forfeiture to the State as set forth in G.S. 14-2.3 and G.S. 14-7.20 . However, the forfeiture of any real or personal property shall be subordinate to any security interest in the property taken by a lender in good faith as collateral for the extension of credit and recorded as provided by law, and no real or personal property shall be forfeited under this section against an owner who made a bona fide purchase of the property, or a person with rightful possession of the property, without knowledge of a violation of this Article.
  5. Any person whose property or person is injured by reason of a violation of this section may sue for and recover treble damages, costs, and attorneys’ fees pursuant to G.S. 1-539.2 D.

History. 2012-38, s. 1; 2015-215, s. 2.

Editor’s Note.

Session Laws 2012-38 provides in its preamble: “Whereas, closed community compounds are located across the United States and near the borders of this State; and

“Whereas, these compounds have limited public access and are reputed to be bound together by a common purpose or ideology; and

“Whereas, there have been reports of weapons fire and military-type training occurring at some of these compounds; and

“Whereas, a defendant who was convicted of the attempted murder of nine students at the University of North Carolina at Chapel Hill as an act of revenge for enemy casualties of war was not charged under federal domestic terrorism laws; and

“Whereas, the current State criminal statutes do not sufficiently recognize the increased danger to the public and do not sanction appropriately acts of terrorism; Now, therefore,”

Effect of Amendments.

Session Laws 2015-215, s. 2, effective October 1, 2015, and applicable to acts committed on or after that date, added subsection (e).

Article 4. Subversive Activities.

§ 14-11. Activities aimed at overthrow of government; use of public buildings.

It shall be unlawful for any person, by word of mouth or writing, willfully and deliberately to advocate, advise or teach a doctrine that the government of the United States, the State of North Carolina or any political subdivision thereof shall be overthrown or overturned by force or violence or by any other unlawful means. It shall be unlawful for any public building in the State, owned by the State of North Carolina, any political subdivision thereof, or by any department or agency of the State or any institution supported in whole or in part by State funds, to be used by any person for the purpose of advocating, advising or teaching a doctrine that the government of the United States, the State of North Carolina or any political subdivision thereof should be overthrown by force, violence or any other unlawful means.

History. 1941, c. 37, s. 1.

Legal Periodicals.

For comment on this section, see 19 N.C.L. Rev. 466 (1941).

§ 14-12. Punishment for violations.

Any person or persons violating any of the provisions of this Article shall, for the first offense, be guilty of a Class 1 misdemeanor and be punished accordingly, and for the second offense shall be punished as a Class H felon.

History. 1941, c. 37, s. 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 11; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-12.1. Certain subversive activities made unlawful.

It shall be unlawful for any person to:

  1. By word of mouth or writing advocate, advise or teach the duty, necessity or propriety of overthrowing or overturning the government of the United States or a political subdivision of the United States by force or violence; or,
  2. Print, publish, edit, issue or knowingly circulate, sell, distribute or publicly display any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that the government of the United States or a political subdivision of the United States should be overthrown by force, violence or any unlawful means; or,
  3. Organize or help to organize or become a member of or voluntarily assemble with any society, group or assembly of persons formed to teach or advocate the doctrine that the government of the United States or a political subdivision of the United States should be overthrown by force, violence or any unlawful means.

    Any person violating the provisions of this section shall be punished as a Class H felon.

    Whenever two or more persons assemble for the purpose of advocating or teaching the doctrine that the government of the United States or a political subdivision of the United States should be overthrown by force, violence or any unlawful means, such an assembly is unlawful, and every person voluntarily participating therein by his presence, aid or instigation, shall be punished as a Class H felon.

    Every editor or proprietor of a book, newspaper or serial and every manager of a partnership or incorporated association by which a book, newspaper or serial is issued, is chargeable with the publication of any matter contained in such book, newspaper or serial. But in every prosecution therefor, the defendant may show in his defense that the matter complained of was published without his knowledge or fault and against his wishes, by another who had no authority from him to make the publication and whose act was disavowed by him as soon as known.

    No person shall be employed by any department, bureau, institution or agency of the State of North Carolina who has participated in any of the activities described in this section, and any person now employed by any department, bureau, institution or agency and who has been or is engaged in any of the activities described in this section shall be forthwith discharged. Evidence satisfactory to the head of such department, bureau, institution or agency of the State shall be sufficient for refusal to employ any person or cause for discharge of any employee for the reasons set forth in this paragraph.

History. 1947, c. 1028; 1953, c. 675, s. 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Article 4A. Prohibited Secret Societies and Activities.

§ 14-12.2. Definitions.

The terms used in this Article are defined as follows:

  1. The term “secret society” shall mean any two or more persons organized, associated together, combined or united for any common purpose whatsoever, who shall use among themselves any certain grips, signs or password, or who shall use for the advancement of any of their purposes or as a part of their ritual any disguise of the person, face or voice or any disguise whatsoever, or who shall take any extrajudicial oath or secret solemn pledge or administer such oath or pledge to those associated with them, or who shall transact business and advance their purposes at secret meeting or meetings which are tiled and guarded against intrusion by persons not associated with them.
  2. The term “secret political society” shall mean any secret society, as hereinbefore defined, which shall at any time have for a purpose the hindering or aiding the success of any candidate for public office, or the hindering or aiding the success of any political party or organization, or violating any lawfully declared policy of the government of the State or any of the laws and constitutional provisions of the State.
  3. The term “secret military society” shall mean any secret society, as hereinbefore defined, which shall at any time meet, assemble or engage in a venture when members thereof are illegally armed, or which shall at any time have for a purpose the engaging in any venture by members thereof which shall require illegal armed force or in which illegal armed force is to be used, or which shall at any time muster, drill or practice any military evolutions while illegally armed.

History. 1953, c. 1193, s. 1.

Legal Periodicals.

For comment on this Article, see 31 N.C.L. Rev. 401 (1953).

§ 14-12.3. Certain secret societies prohibited.

It shall be unlawful for any person to join, unite himself with, become a member of, apply for membership in, form, organize, solicit members for, combine and agree with any person or persons to form or organize, or to encourage, aid or assist in any way any secret political society or any secret military society or any secret society having for a purpose the violating or circumventing the laws of the State.

History. 1953, c. 1193, s. 2.

§ 14-12.4. Use of signs, grips, passwords or disguises or taking or administering oath for illegal purposes.

It shall be unlawful for any person to use, agree to use, or to encourage, aid or assist in the using of any signs, grips, passwords, disguise of the face, person or voice, or any disguise whatsoever in the furtherance of any illegal secret political purpose, any illegal secret military purpose, or any purpose of violating or circumventing the laws of the State; and it shall be unlawful for any person to take or administer, or agree to take or administer, any extrajudicial oath or secret solemn pledge to further any illegal secret political purpose, any illegal secret military purpose, or any purpose of violating or circumventing the laws of the State.

History. 1953, c. 1193, s. 3.

§ 14-12.5. Permitting, etc., meetings or demonstrations of prohibited secret societies.

It shall be unlawful for any person to permit or agree to permit any members of a secret political society or a secret military society or a secret society having for a purpose the violating or circumventing the laws of the State to meet or to hold any demonstration in or upon any property owned or controlled by him.

History. 1953, c. 1193, s. 4.

§ 14-12.6. Meeting places and meetings of secret societies regulated.

Every secret society which has been or is now being formed and organized within the State, and which has members within the State shall forthwith provide or cause to be provided for each unit, lodge, council, group of members, grand lodge or general supervising unit a regular meeting place in some building or structure, and shall forthwith place and thereafter regularly keep a plainly visible sign or placard on the immediate exterior of such building or structure or on the immediate exterior of the meeting room or hall within such building or structure, if the entire building or structure is not controlled by such secret society, bearing upon said sign or placard the name of the secret society, the name of the particular unit, lodge, council, group of members, grand lodge or general supervising unit thereof and the name of the secretary, officer, organizer or member thereof who knows the purposes of the secret society and who knows or has a list of the names and addresses of the members thereof, and as such secretary, officer, organizer or member dies, removes, resigns or is replaced, his or her successor’s name shall be placed upon such sign or placard; any person or persons who shall hereafter undertake to form and organize any secret society or solicit membership for a secret society within the State shall fully comply with the foregoing provisions of this section before forming and organizing such secret society and before soliciting memberships therein; all units, lodges, councils, groups of members, grand lodge and general supervising units of all secret societies within the State shall hold all of their secret meetings at the regular meeting place of their respective units, lodges, councils, group of members, grand lodge or general supervising units or at the regular meeting place of some other unit, lodge, council, group of members, grand lodge or general supervising unit of the same secret society, and at no other place unless notice is given of the time and place of the meeting and the name of the secret society holding the meeting in some newspaper having circulation in the locality where the meeting is to be held at least two days before the meeting.

History. 1953, c. 1193, s. 5.

§ 14-12.7. Wearing of masks, hoods, etc., on public ways.

No person or persons at least 16 years of age shall, while wearing any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, enter, be or appear upon any lane, walkway, alley, street, road, highway or other public way in this State.

History. 1953, c. 1193, s. 6; 1983, c. 175, ss. 1, 10; c. 720, s. 4.

§ 14-12.8. Wearing of masks, hoods, etc., on public property.

No person or persons shall in this State, while wearing any mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, enter, or appear upon or within the public property of any municipality or county of the State, or of the State of North Carolina.

History. 1953, c. 1193, s. 7.

§ 14-12.9. Entry, etc., upon premises of another while wearing mask, hood or other disguise.

No person or persons at least 16 years of age shall, while wearing a mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, demand entrance or admission, enter or come upon or into, or be upon or in the premises, enclosure or house of any other person in any municipality or county of this State.

History. 1953, c. 1193, s. 8; 1983, c. 175, ss. 2, 10; c. 720, s. 4.

§ 14-12.10. Holding meetings or demonstrations while wearing masks, hoods, etc.

No person or persons at least 16 years of age shall while wearing a mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, hold any manner of meeting, or make any demonstration upon the private property of another unless such person or persons shall first obtain from the owner or occupier of the property his or her written permission to do so, which said written permission shall be recorded in the office of the register of deeds of the county in which said property is located before the beginning of such meeting or demonstration.

History. 1953, c. 1193, s. 9; 1983, c. 175, ss. 3, 10; c. 720, s. 4.

§ 14-12.11. Exemptions from provisions of Article.

  1. Any of the following are exempted from the provisions of G.S. 14-12.7 , 14-12.8, 14-12.9, 14-12.10 and 14-12.14:
    1. Any person or persons wearing traditional holiday costumes in season.
    2. Any person or persons engaged in trades and employment where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade or profession.
    3. Any person or persons using masks in theatrical productions including use in Mardi Gras celebrations and masquerade balls.
    4. Persons wearing gas masks prescribed in civil defense drills and exercises or emergencies.
    5. Any person or persons, as members or members elect of a society, order or organization, engaged in any parade, ritual, initiation, ceremony, celebration or requirement of such society, order or organization, and wearing or using any manner of costume, paraphernalia, disguise, facial makeup, hood, implement or device, whether the identity of such person or persons is concealed or not, on any public or private street, road, way or property, or in any public or private building, provided permission shall have been first obtained therefor by a representative of such society, order or organization from the governing body of the municipality in which the same takes place, or, if not in a municipality, from the board of county commissioners of the county in which the same takes place.
    6. Any person wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others. (a1) This Article shall not apply to any preliminary meetings held in good faith for the purpose of organizing, promoting or forming a labor union or a local organization or subdivision of any labor union nor shall the provisions of this Article apply to any meetings held by a labor union or organization already organized, operating and functioning and holding meetings for the purpose of transacting and carrying out functions, pursuits and affairs expressly pertaining to such labor union.
  2. Notwithstanding G.S. 14-12.7 and G.S. 14-12.8 , a person may wear a mask for the purpose of protecting the person’s head, face, or head and face, when operating a motorcycle, as defined in G.S. 20-4.01 . A person wearing a mask when operating a motorcycle shall remove the mask during a traffic stop, including at a checkpoint or roadblock under G.S. 20-16.3 A, or when approached by a law enforcement officer.
  3. Notwithstanding subdivision (a)(6) of this section, a person wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others shall remove the mask, upon request by a law enforcement officer, in any of the following circumstances:
    1. During a traffic stop, including a checkpoint or roadblock pursuant to G.S. 20-16.3 A.
    2. When a law enforcement officer has reasonable suspicion or probable cause during a criminal investigation.

History. 1953, c. 1193, s. 10; 2019-115, s. 1; 2020-3, s. 4.3(a); 2020-93, ss. 2, 3.

Editor’s Note.

Session Laws 2019-115, s. 2, made subsection (b), as added by Session Laws 2019-115, s. 1, effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2020-3, s. 4.3(b), made the amendment to this section by Session Laws 2020-3, s. 4.3(a) effective May 4, 2020, and provided that the amendment expired August 1, 2020. Session Laws 2020-93, s. 2, effective July 10, 2020, amended Session Laws 2020-3, s. 4.3(b), by deleting the expiration provision.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments.

Session Laws 2019-115, s. 1, designated the previously existing provisions of the section as subsection (a); and added subsection (b). For effective date and applicability, see editor’s note.

Session Laws 2020-3, s. 4.3(a), substituted “Any of the” for “The” in the introductory language of subsection (a); added subdivision (a)(6), and made stylistic changes; and added subsection (c). For effective date and expiration of amendment, see editor’s note.

Session Laws 2020-93, s. 3, effective July 10, 2020, added the subsection (a1) designator and, in subsection (a1), substituted “This Article” for “Provided, that the provisions of this Article” at the beginning; and added “Notwithstanding subdivision (a)(6) of this section” at the beginning of subsection (c).

§ 14-12.12. Placing burning or flaming cross on property of another or on public street or highway or on any public place.

  1. It shall be unlawful for any person or persons to place or cause to be placed on the property of another in this State a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is a whole or a part, without first obtaining written permission of the owner or occupier of the premises so to do.
  2. It shall be unlawful for any person or persons to place or cause to be placed on the property of another in this State or on a public street or highway, or on any public place a burning or flaming cross or any manner of exhibit in which a burning or flaming cross real or simulated, is a whole or a part, with the intention of intimidating any person or persons or of preventing them from doing any act which is lawful, or causing them to do any act which is unlawful.

History. 1953, c. 1193, s. 11; 1967, c. 522, ss. 1, 2; 2008-197, s. 1.

Effect of Amendments.

Session Laws 2008-197, s. 1, effective December 1, 2008, and applicable to offenses committed on or after that date, inserted “or on any public place” in the section heading, and in subsection (b).

§ 14-12.13. Placing exhibit with intention of intimidating, etc., another.

It shall be unlawful for any person or persons to place or cause to be placed anywhere in this State any exhibit of any kind whatsoever, while masked or unmasked, with the intention of intimidating any person or persons, or of preventing them from doing any act which is lawful, or of causing them to do any act which is unlawful. For the purposes of this section, the term “exhibit” includes items such as a noose.

History. 1953, c. 1193, s. 12; 2008-197, s. 2.

Effect of Amendments.

Session Laws 2008-197, s. 2, effective December 1, 2008, and applicable to offenses committed on or after that date, added the last sentence.

§ 14-12.14. Placing exhibit while wearing mask, hood, or other disguise.

It shall be unlawful for any person or persons, while wearing a mask, hood or device whereby the person, face or voice is disguised so as to conceal the identity of the wearer, to place or cause to be placed at or in any place in the State any exhibit of any kind whatsoever, with the intention of intimidating any person or persons, or of preventing them from doing any act which is lawful, or of causing them to do any act which is unlawful. For the purposes of this section, the term “exhibit” includes items such as a noose.

History. 1953, c. 1193, s. 13; 1967, c. 522, s. 3; 2008-197, s. 3.

Effect of Amendments.

Session Laws 2008-197, s. 3, effective December 1, 2008, and applicable to offenses committed on or after that date, added the last sentence.

§ 14-12.15. Punishment for violation of Article.

All persons violating any of the provisions of this Article, except for G.S. 14-12.12(b), 14-12.13, and 14-12.14, shall be guilty of a Class 1 misdemeanor. All persons violating the provisions of G.S. 14-12.12(b), 14-12.13, and 14-12.14 shall be punished as a Class H felon.

History. 1953, c. 1193, s. 14; 1967, c. 602; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 12; 1994, Ex. Sess., c. 24, s. 14(c); 2008-197, s. 4.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Effect of Amendments.

Session Laws 2008-197, s. 4, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “Class H” for “Class I” at the end.

Article 5. Counterfeiting and Issuing Monetary Substitutes.

§ 14-13. Counterfeiting coin and uttering coin that is counterfeit.

If any person shall falsely make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in falsely making, forging or counterfeiting the resemblance or similitude or likeness of any coin of gold or silver which is in common use and received in the discharge of contracts by the citizens of the State; or shall pass, utter, publish or sell, or attempt to pass, utter, publish or sell, or bring into the State from any other place with intent to pass, utter, publish or sell as true, any such false, forged or counterfeited coin, knowing the same to be false, forged or counterfeited, with intent to defraud any person whatsoever, every person so offending shall be punished as a Class I felon.

History. 1811, c. 814, s. 3, P.R; R.C., c. 34, s. 64; Code, s. 1035; Rev., s. 3422; C.S., s. 4181; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1123; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 379, s. 1(a).

Cross References.

As to forgery, see G.S. 14-119 et seq.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-14. Possessing tools for counterfeiting.

If any person shall have in his possession any instrument for the purpose of making any counterfeit similitude or likeness of any coin made of gold or silver which is in common use and received in discharge of contracts by the citizens of the State, and shall be duly convicted thereof, the person so offending shall be punished as a Class I felon.

History. 1811, c. 814, s. 4, P.R; R.C., c. 34, s. 65; Code, s. 1036; Rev., s. 3423; C.S., s. 4182; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1124; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 379, s. 1(b).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Indictment Sufficient. —

An indictment charging defendant with having in his possession “one pair of dies, upon which were made the likeness, similitude, figure and resemblance of the sides of a lawful Spanish milled silver dollar, etc., for the purpose of making and counterfeiting money in the likeness and similitude of Spanish milled silver dollars,” was held to charge, with sufficient certainty, the offense designated in this section. State v. Collins, 10 N.C. 191 , 1824 N.C. LEXIS 46 (1824).

§ 14-15. Issuing substitutes for money without authority.

If any person or corporation, unless the same be expressly allowed by law, shall issue any bill, due bill, order, ticket, certificate of deposit, promissory note or obligation, or any other kind of security, whatever may be its form or name, with the intent that the same shall circulate or pass as the representative of, or as a substitute for, money, he shall be guilty of a Class 3 misdemeanor and only punishable by a fine not to exceed the sum of fifty dollars ($50.00); and if the offender be a corporation, it shall in addition forfeit its charter. Every person or corporation offending against this section, or aiding or assisting therein, shall be guilty of a Class 3 misdemeanor and only punishable by a fine not to exceed fifty dollars ($50.00).

History. R.C., c. 36, s. 5; Code, s. 2493; 1895, c. 127; Rev., s. 3711; C.S., s. 4183; 1993, c. 539, s. 13; 1994, Ex. Sess., c. 24, s. 14(c).

Local Modification.

Cumberland: 1933, c. 33; Currituck: 1933, c. 328.

CASE NOTES

In General. —

Act of 1816, c. 900, which was very similar to this section, was held constitutional and the intent in so issuing the notes, etc., was held an essential ingredient of the offense. In State v. Humphreys, 19 N.C. 555 , 1837 N.C. LEXIS 87 (1837).

§ 14-16. Receiving or passing unauthorized substitutes for money.

If any person or corporation shall pass or receive, as the representative of, or as the substitute for, money, any bill, check, certificate, promissory note, or other security of the kind mentioned in G.S. 14-15 , whether the same be issued within or without the State, such person or corporation, and the officers and agents of such corporation aiding therein, who shall offend against this section shall be guilty of a Class 3 misdemeanor and only punishable by a fine not to exceed five dollars ($5.00).

History. R.C., c. 36, s. 6; Code, s. 2494; 1895, c. 127; Rev., s. 3712; C.S., s. 4184; 1993, c. 539, s. 14; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Applicability. —

Section making it an offense to “pass and receive” bank notes did not apply to a bank, but the bank should be penalized under another section which made it unlawful to make and issue notes of a less denomination than $3.00. State v. Bank of Fayetteville, 48 N.C. 450 , 1856 N.C. LEXIS 128 (1856).

§§ 14-16.1 through 14-16.5.

Reserved for future codification purposes.

Article 5A. Endangering Executive, Legislative, and Court Officers.

§ 14-16.6. Assault on executive, legislative, or court officer.

  1. Any person who assaults any legislative officer, executive officer, or court officer, or assaults another person as retaliation against any legislative officer, executive officer, or court officer because of the exercise of that officer’s duties, or any person who makes a violent attack upon the residence, office, temporary accommodation or means of transport of any one of those officers or persons in a manner likely to endanger the officer or person, shall be guilty of a felony and shall be punished as a Class I felon.
  2. Any person who commits an offense under subsection (a) and uses a deadly weapon in the commission of that offense shall be punished as a Class F felon.
  3. Any person who commits an offense under subsection (a) and inflicts serious bodily injury to any legislative officer, executive officer, or court officer, shall be punished as a Class F felon.

History. 1981, c. 822, s. 1; 1993, c. 539, s. 1125; 1994, Ex. Sess., c. 24, s. 14(c); 1999-398, s. 1; 2014-119, s. 6(a).

Cross References.

For definitions applicable to this Article, see G.S. 14-16.10 .

As to authority of the State Bureau of Investigation to investigate assaults upon or threats against the officers named in G.S. 147-2 and 147-3(c), see G.S. 143B-919 .

Effect of Amendments.

Session Laws 2014-119, s. 6(a), effective December 1, 2014, rewrote subsection (a). See Editor’s note for applicability.

Legal Periodicals.

For “Legislative Survey: Criminal Law,” see 22 Campbell L. Rev. 253 (2000).

§ 14-16.7. Threats against executive, legislative, or court officers.

  1. Any person who knowingly and willfully makes any threat to inflict serious bodily injury upon or to kill any legislative officer, executive officer, or court officer, or who knowingly and willfully makes any threat to inflict serious bodily injury upon or kill any other person as retaliation against any legislative officer, executive officer, or court officer because of the exercise of that officer’s duties, shall be guilty of a felony and shall be punished as a Class I felon.
  2. Any person who knowingly and willfully deposits for conveyance in the mail any letter, writing, or other document containing a threat to commit an offense described in subsection (a) of this section shall be guilty of a felony and shall be punished as a Class I felon.

History. 1981, c. 822, s. 1; 1993, c. 539, s. 1126; 1994, Ex. Sess., c. 24, s. 14(c); 1999-398, s. 1; 2014-119, s. 6(b).

Effect of Amendments.

Session Laws 2014-119, s. 6(b), effective December 1, 2014, rewrote subsection (a), and substituted “commit an offense described in subsection (a) of this section” for “inflict serious bodily injury upon or to kill any legislative officer, executive officer, or court officer” in subsection (b). See Editor’s note for applicability.

CASE NOTES

True Threat. —

Defendant’s social media posts did not rise to the level of a true treat because the statements were political hyperbole, there were no specifics that suggested an actual intent that the district attorney be killed, the State never proved that defendant actually owned any firearms or ammunition, the district attorney testified that she did not feel the need to have personal protection and she was not concerned about returning to work the next day, a detective did not express any concern directly to defendant, none of the responses to the posts indicated concern that defendant might be planning to kill the district attorney, and defendant’s deletion of the posts was strong evidence that he did not intend the posts to constitute a true threat to kill the district attorney. State v. Taylor, 270 N.C. App. 514, 841 S.E.2d 776, 2020 N.C. App. LEXIS 213 (2020), rev'd, 379 N.C. 589 , 866 S.E.2d 740, 2021- NCSC-164, 2021 N.C. LEXIS 1331 (2021).

Record evidence could not have supported a finding that defendant’s intent in posting his comments was to cause the district attorney to believe that defendant was going to kill her considering the alleged threats in the context of the entire social media conversation on defendant’s personal social media page, to which the district attorney Welch did not have access. State v. Taylor, 270 N.C. App. 514, 841 S.E.2d 776, 2020 N.C. App. LEXIS 213 (2020), rev'd, 379 N.C. 589 , 866 S.E.2d 740, 2021- NCSC-164, 2021 N.C. LEXIS 1331 (2021).

Because proof of a “true threat” is essential to prosecution pursuant this section, “true threat” must be included in the definition of the crime of threatening to kill a court officer. Further, “true threat” must be included as an “essential element” of the statute. State v. Taylor, 270 N.C. App. 514, 841 S.E.2d 776, 2020 N.C. App. LEXIS 213 (2020), rev'd, 379 N.C. 589 , 866 S.E.2d 740, 2021- NCSC-164, 2021 N.C. LEXIS 1331 (2021).

“True threat” is a constitutional fact that must be proven by the State beyond a reasonable doubt. Therefore, true threat is an essential element of this section, and the trial court is constitutionally prohibited from deciding the existence of a true threat as a matter of law. State v. Taylor, 270 N.C. App. 514, 841 S.E.2d 776, 2020 N.C. App. LEXIS 213 (2020), rev'd, 379 N.C. 589 , 866 S.E.2d 740, 2021- NCSC-164, 2021 N.C. LEXIS 1331 (2021).

Jury Instructions. —

Trial court erred by failing grant defendant’s request to instruct the jury that the State had to prove defendant communicated a “true threat,” that it instruct the jury on the definition of “true threat,” and that it instruct the jury on the appropriate standards of intent because defendant’s requested instruction was a generally correct statement of the law, and without instructing the jurors that they were required to consider the alleged threats in context and that they were required to apply the appropriate intent standards, the jury was free to find defendant guilty without having made a determination that any of defendant’s posts were true threats. State v. Taylor, 270 N.C. App. 514, 841 S.E.2d 776, 2020 N.C. App. LEXIS 213 (2020), rev'd, 379 N.C. 589 , 866 S.E.2d 740, 2021- NCSC-164, 2021 N.C. LEXIS 1331 (2021).

Trial court must properly and fully instruct the jury on all the required elements of anti-threat statutes, including the element of true threat, along with its associated intent elements, both general and specific. State v. Taylor, 270 N.C. App. 514, 841 S.E.2d 776, 2020 N.C. App. LEXIS 213 (2020), rev'd, 379 N.C. 589 , 866 S.E.2d 740, 2021- NCSC-164, 2021 N.C. LEXIS 1331 (2021).

§ 14-16.8. No requirement of receipt of the threat.

In prosecutions under G.S. 14-16.7 of this Article it shall not be necessary to prove that any legislative officer, executive officer, or court officer actually received the threatening communication or actually believed the threat.

History. 1981, c. 822, s. 1; 1999-398, s. 1.

§ 14-16.9. Officers-elect to be covered.

Any person who has been elected to any office covered by this Article but has not yet taken the oath of office shall be considered to hold the office for the purpose of this Article and G.S. 143B-919 .

History. 1981, c. 822, s. 1; 2011-145, s. 19.1(dd1); 2011-391, s. 43(l); 2014-100, s. 17.1(v).

Effect of Amendments.

Session Laws 2014-100, s. 17.1(v), effective July 1, 2014, substituted “G.S. 143B-919” for “G.S. 114-15” at the end of the section.

§ 14-16.10. Definitions.

The following definitions apply in this Article:

  1. Court officer. — Magistrate, clerk of superior court, acting clerk, assistant or deputy clerk, judge, or justice of the General Court of Justice; district attorney, assistant district attorney, or any other attorney designated by the district attorney to act for the State or on behalf of the district attorney; public defender or assistant defender; court reporter; juvenile court counselor as defined in G.S. 7B-1501(18a); any attorney or other individual employed by or acting on behalf of the department of social services in proceedings pursuant to Subchapter I of Chapter 7B of the General Statutes; any attorney or other individual appointed pursuant to G.S. 7B-601 or G.S. 7B-1108 or employed by the Guardian ad Litem Services Division of the Administrative Office of the Courts.
  2. Executive officer. — A person named in G.S. 147-3(c) .
  3. Legislative officer. — A person named in G.S. 147-2(1) , (2), or (3).

History. 1999-398, s. 1; 2001-490, s. 2.35; 2003-140, s. 10.

Subchapter III. Offenses Against the Person.

Article 6. Homicide.

§ 14-17. Murder in the first and second degree defined; punishment.

  1. A murder which shall be perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction as defined in G.S. 14-288.21 , poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State’s prison for life without parole as the court shall determine pursuant to G.S. 15A-2000 , except that any such person who was under 18 years of age at the time of the murder shall be punished in accordance with Part 2A of Article 81B of Chapter 15A of the General Statutes. (a1) If a murder was perpetrated with malice as described in subdivision (1) of subsection (b) of this section, and committed against a spouse, former spouse, a person with whom the defendant lives or has lived as if married, a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B-1(b)(6), or a person with whom the defendant shares a child in common, there shall be a rebuttable presumption that the murder is a “willful, deliberate, and premeditated killing” under subsection (a) of this section and shall be deemed to be murder in the first degree, a Class A felony, if the perpetrator has previously been convicted of one of the following offenses involving the same victim:
    1. An act of domestic violence as defined in G.S. 50B-1(a) .
    2. A violation of a domestic violence protective order under G.S. 50B-4.1(a), (f), (g), or (g1) or G.S. 14-269.8 when the same victim is the subject of the domestic violence protective order.
    3. Communicating a threat under G.S. 14-277.1 .
    4. Stalking as defined in G.S. 14-277.3 A.
    5. Cyberstalking as defined in G.S. 14-196.3 .
    6. Domestic criminal trespass as defined in G.S. 14-134.3 .
  2. A murder other than described in subsection (a) or (a1) of this section or in G.S. 14-23.2 shall be deemed second degree murder. Any person who commits second degree murder shall be punished as a Class B1 felon, except that a person who commits second degree murder shall be punished as a Class B2 felon in either of the following circumstances:
    1. The malice necessary to prove second degree murder is based on an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.
    2. The murder is one that was proximately caused by the unlawful distribution of any opium, opiate, or opioid; any synthetic or natural salt, compound, derivative, or preparation of opium, or opiate, or opioid; cocaine or other substance described in G.S. 90-90(1) d.; methamphetamine; or a depressant described in G.S. 90-92(a)(1), and the ingestion of such substance caused the death of the user.
  3. For the purposes of this section, it shall constitute murder where a child is born alive but dies as a result of injuries inflicted prior to the child being born alive. The degree of murder shall be determined as described in subsections (a) and (b) of this section.

History. 1893, cc. 85, 281; Rev., s. 3631; C.S., s. 4200; 1949, c. 299, s. 1; 1973, c. 1201, s. 1; 1977, c. 406, s. 1; 1979, c. 682, s. 6; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1251, ss. 1, 2; c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; c. 662, s. 1; 1987, c. 693; 1989, c. 694; 1993, c. 539, s. 112; 1994, Ex. Sess., c. 21, s. 1; c. 22, s. 4; c. 24, s. 14(c); 2001-470, s. 2; 2004-178, s. 1; 2007-81, s. 1; 2012-165, s. 1; 2013-47, s. 2; 2013-410, s. 3(a); 2017-94, s. 1; 2017-115, s. 9.

Cross References.

As to provisions regarding transfer to superior court, see G.S. 7B-2200 .

As to accomplices, see G.S. 14-5.2 .

As to nuclear, biological, or chemical weapons of mass destruction, see G.S. 14-288.21 et seq.

As to assault in this State, but death in another, see G.S. 15-131 .

As to indictment for homicide, see G.S. 15-144 .

As to verdict in prosecution for homicide, see G.S. 15-172 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to eligibility for parole of prisoners serving life sentence, see G.S. 15A-1371 .

As to capital punishment, see G.S. 15A-2000 et seq.

As to provisions regarding controlled substances, see G.S. 90-90 .

Editor’s Note.

Session Laws 2012-165 provides in its preamble: “Whereas, the State must prove that the defendant acted with malice to obtain a conviction of second degree murder; and

“Whereas, North Carolina case law holds that malice may be shown in three different ways: by hatred, ill will, or spite; a condition of the mind which prompts a person to take the life of another intentionally or to intentionally inflict serious bodily injury which proximately results in another’s death, without just cause, excuse or justification; or the commission of an inherently dangerous act or omission, in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; Now, therefore;”

Session Laws 2012-165, s. 4, made the amendments to this section by Session Laws 2012-165, s. 1, which amended subsection (a) and added subsection (b), applicable to offenses committed on or after December 1, 2012.

Session Laws 2013-47, s. 1, provides: “This act shall be known as ‘Lily’s Law.’ ”

Session Laws 2013-47, s. 3, provides: “This act becomes effective December 1, 2013, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the common law and statutes that would be applicable but for this act remain applicable to those prosecutions. The statutes, including Article 6A of Chapter 14 of the General Statutes, and the common law shall remain applicable to offenses not described in this act, whether the offense is charged due to a child being born alive and who dies or who is born alive with injuries resulting from injuries inflicted prior to being born alive. Nothing in this act shall be construed to apply to an unintentional act or omission committed by the child’s birth mother during the pregnancy that culminated in the birth of the child.” Session Laws 2013-47, s. 2, added subsection (c).

Session Laws 2017-94, s. 2, made subsection (a1), as added by Session Laws 2017-94, s. 1, effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2017-115, s. 1, provides: “This act shall be known and may be cited as the ‘Synthetic Opioid and Other Dangerous Drug Control Act.”’

Session Laws 2017-115, s. 12, made the rewriting of subdivision (b)(2) by Session Laws 2017-115, s. 9, effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2004-178, s. 1, effective December 1, 2004, and applicable to offenses committed on or after that date, inserted “or methamphetamine” preceding “when the ingestion” in the last sentence.

Session Laws 2007-81, s. 1, effective June 14, 2007, substituted “18 years” for “17 years” near the end of the first sentence; and deleted the former second sentence, which read: “Provided, however, any person under the age of 17 who commits murder in the first degree while serving a prison sentence imposed for a prior murder or while on escape from a prison sentence imposed for a prior murder shall be punished with death or imprisonment in the State’s prison for life without parole as the court shall determine pursuant to G.S. 15A-2000 .”

Session Laws 2012-165, s. 1, effective December 1, 2012, added the subsection (a) designation; deleted the last sentence in subsection (a), which formerly read: “All other kinds of murder, including that which shall be proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(1) d., or methamphetamine, when the ingestion of such substance causes the death of the user, shall be deemed murder in the second degree, and any person who commits such murder shall be punished as a Class B2 felon.”; and added subsection (b). For applicability, see editor’s note.

Session Laws 2013-47, s. 2, effective December 1, 2013, added subsection (c). For effective date and applicability, see Editor’s note.

Session Laws 2013-410, s. 3(a), effective August 23, 2013, substituted “in accordance with Part 2A of Article 81B of Chapter 15A of the General Statutes” for “with imprisonment in the State’s prison for life without parole” at the end of subsection (a).

Session Laws 2017-94, s. 1, added subsection (a1); and inserted “or (a1)” in the first sentence of subsection (b). For effective date and applicability, see editor’s note.

Session Laws 2017-115, s. 9, rewrote subdivision (b)(2), which read: “The murder is one that was proximately caused by the unlawful distribution of opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or cocaine or other substance described in G.S. 90-90(1) d., or methamphetamine, and the ingestion of such substance caused the death of the user.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For brief comment on the argument of counsel as to the death penalty, see 32 N.C.L. Rev. 438 (1954).

For note as to improper court response to spontaneous jury inquiry as to pardon and parole possibilities, see 33 N.C.L. Rev. 665 (1955).

For comment on homicide by fright, see 44 N.C.L. Rev. 844 (1966).

For case law survey as to homicide, see 45 N.C.L. Rev. 918 (1967).

For comment on the felony-murder doctrine, see 3 Wake Forest Intra. L. Rev. 20 (1967).

For article, “Capital Punishment and Life Imprisonment in North Carolina, 1946 to 1968: Implications for Abolition of the Death Penalty,” see 6 Wake Forest Intra. L. Rev. 417 (1970).

For note on voluntariness of guilty pleas in plea-bargaining context, see 49 N.C.L. Rev. 795 (1971).

For comment, “An Historical Analysis of Mandatory Capital Punishment,” see 7 N.C. Cent. L.J. 306 (1976).

For note on the burden of proof for affirmative defenses in homicide cases, see 12 Wake Forest L. Rev. 423 (1976).

For note on the erosion of the retreat rule and self-defense, see 12 Wake Forest L. Rev. 1093 (1976).

For survey of 1976 case law on constitutional law, see 55 N.C.L. Rev. 965 (1977).

For comment on the merger doctrine as a limitation on the felony-murder rule, see 13 Wake Forest L. Rev. 369 (1977).

For survey of 1977 law on criminal procedure, see 56 N.C.L. Rev. 983 (1978).

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

For survey of 1979 law on criminal procedure, see 58 N.C.L. Rev. 1404 (1980).

For comment on capital punishment and evolving standards of decency, see 16 Wake Forest L. Rev. 737 (1980).

For comment on capital sentencing statute, see 16 Wake Forest L. Rev. 765 (1980).

For comment on capital punishment in North Carolina, see 59 N.C.L. Rev. 911 (1981).

For survey of 1980 criminal law, see 59 N.C.L. Rev. 1123 (1981).

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

For note discussing the availability of the imperfect right of self-defense in homicide cases in light of State v. Norris, 303 N.C. 526 , 279 S.E.2d 570 (1981), see 4 Campbell L. Rev. 427 (1982).

For article discussing shortcomings of the North Carolina homicide law, see 19 Wake Forest L. Rev. 331 (1983).

For note discussing North Carolina’s capital sentencing procedure, see 62 N.C.L. Rev. 833 (1984).

For 1984 survey, “The Evolution of North Carolina’s Comparative Proportionality Review in Capital Cases,” see 63 N.C.L. Rev. 1146 (1985).

For article, “Prosecutorial Abuse of Peremptory Challenges in Death Penalty Litigation: Some Constitutional and Ethical Considerations,” see 8 Campbell L. Rev. 71 (1985).

For note, “Murder and the Tort of Intentional Infliction of Emotional Distress,” see 1986 Duke L.J. 572.

For survey of 1987 law on felony murder, see 65 N.C.L. Rev. 1220 (1987).

For survey of 1987 law on murder by poison, see 65 N.C.L. Rev. 1231 (1987).

For article, “Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated,” see 66 N.C.L. Rev. 283 (1988).

For note, “Overstepping Precedent? Tison v. Arizona Imposes the Death Penalty on Felony Murder Accomplices,” see 66 N.C. L. Rev. 817 (1988).

For note, “Mercy Killing and Malice in North Carolina,” see 66 N.C.L. Rev. 1160 (1988).

For note on the battered woman syndrome, see 11 Campbell L. Rev. 263 (1989).

For comment, “Ending the Continuous Reign of Terror: Sleeping Husbands, Battered Wives, and the Right of Self-Defense,” see 24 Wake Forest L. Rev. 959 (1989).

For note, “State v. Thomas: The North Carolina Supreme Court Determines That There Are Lesser Included Offenses of Felony Murder,” see 68 N.C. L. Rev. 1127 (1990).

For note, “State v. Beale and the Killing of a Viable Fetus: An Exercise in Statutory Construction and the Potential for Legislative Reform,” see 68 N.C. L. Rev. 1144 (1990).

For note, “State v. Norman: Self-Defense Unavailable to Battered Women Who Kill Passive Abusers,” see 68 N.C. L. Rev. 1159 (1990).

For comment, “Insanity Defense: Should the Shock of the Hayes Verdict Compel North Carolina to Fix What ‘Ain’t Broke’?”, see 25 Wake Forest L. Rev. 547 (1990).

For article, “On Self-Defense, Imminence, and Women Who Kill Their Batterers,” see 71 N.C.L. Rev. 371 (1993).

For note, “State v. Jennings: Public Fervor, the North Carolina Supreme Court, and Society’s Ultimate Punishment,” see 72 N.C.L. Rev. 1672 (1994).

For article, “Person or Thing — In Search of the Legal Status of a Fetus: A Survey of North Carolina Law,” see 17 Campbell L. Rev. 169 (1995).

For article, “Was the First Woman Hanged in North Carolina a ‘Battered spouse?’ ”, see 19 Campbell L. Rev. 311 (1997).

For a note on judicial limitations on the attempted felony-murder rule, see 76 N.C.L. Rev. 2360 (1998).

For comment, “North Carolina’s Unconstitutional Expansion of an Ancient Maxim: Using DWI Fatalities to Satisfy First Degree Felony Murder,” see 22 Campbell L. Rev. 169 (1999).

For article, “Shaken Baby Syndrome as Felony Murder in North Carolina,” see 34 Campbell L. Rev. 423 (2012).

For comment, “’Retribution, Not a Solution’: Drug-Induced Homicide in North Carolina,” see 42 Campbell L. Rev. 161 (2020).

For article, “CAPITAL PUNISHMENT IN NORTH CAROLINA: A JUSTICE’S VIEW ON WHY WE CAN ‘NO LONGER TINKER WITH THE MACHINERY OF DEATH’,” see 99 N.C. L. Rev. Addendum 1 (2020).

For article, “LIFE WITHOUT PAROLE SENTENCING IN NORTH CAROLINA ,” see 99 N.C.L. Rev. 279 (2021).

For article, “The Sixth and Eighth Amendment Nexus and the Future of Mandatory Sentences,” see 99 N.C.L. Rev. 1311 (2021).

CASE NOTES

Analysis

I.General Consideration

Section Not Unconstitutionally Vague. —

In light of the common understanding of what defines torture, the section is not unconstitutionally vague and puts a reasonable person on notice of what is forbidden. State v. Crawford, 329 N.C. 466 , 406 S.E.2d 579, 1991 N.C. LEXIS 531 (1991).

Failure of this section to define the term “deadly weapon” does not result in the statute being unconstitutionally vague. Furthermore, because North Carolina cases provide adequate notice of what constitutes a deadly weapon, a defendant is not deprived of due process. State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405, 1999 N.C. App. LEXIS 622 (1999), aff'd in part and rev'd in part, 353 N.C. 159 , 538 S.E.2d 917, 2000 N.C. LEXIS 894 (2000).

Prior to 1893 there were no degrees of murder in North Carolina. Any unlawful killing of a human being with malice aforethought, express or implied, was murder and punishable by death. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970); State v. Talbert, 282 N.C. 718 , 194 S.E.2d 822, 1973 N.C. LEXIS 1155 (1973); State v. Watkins, 283 N.C. 17 , 194 S.E.2d 800, 1973 N.C. LEXIS 894 , cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235, 1973 U.S. LEXIS 1220 (1973).

The degrees of homicide may be defined as follows: Murder in the first degree is the unlawful killing of another human being with malice and with premeditation and deliberation. Murder in the second degree is the unlawful killing of another human being with malice but without premeditation and deliberation. Voluntary manslaughter is the killing of another human being without malice and without premeditation and deliberation under the influence of some passion or heat of blood produced by adequate provocation. State v. Watson, 338 N.C. 168 , 449 S.E.2d 694, 1994 N.C. LEXIS 648 (1994), cert. denied, 514 U.S. 1071, 115 S. Ct. 1708, 131 L. Ed. 2d 569, 1995 U.S. LEXIS 2732 (1995).

There are two kinds of provocation relating to the law of homicide: One is that level of provocation which negates malice and reduces murder to voluntary manslaughter; the other is provocation sufficient to incite defendant to act suddenly and without deliberation. State v. Watson, 338 N.C. 168 , 449 S.E.2d 694, 1994 N.C. LEXIS 648 (1994), cert. denied, 514 U.S. 1071, 115 S. Ct. 1708, 131 L. Ed. 2d 569, 1995 U.S. LEXIS 2732 (1995).

Section Divides Murder into Four Classes. —

This section does not divide first degree murder into separate offenses, each of which has its own essential elements, but divides the offense into four distinct classes, according to the proof required for each. State v. Brown, 320 N.C. 179 , 358 S.E.2d 1, 1987 N.C. LEXIS 2180 , cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406, 1987 U.S. LEXIS 5019 (1987).

Purpose of Classifying Degrees of Murder. —

This section intended to select out of all murders denounced those that were more heinous because committed with premeditation and deliberation, or in the perpetration or attempted perpetration of a felony, etc., as murder in the first degree, punishable with death, and leave other murders deemed less heinous as murder in the second degree, punishable by imprisonment. State v. Smith, 221 N.C. 278 , 20 S.E.2d 313, 1942 N.C. LEXIS 455 (1942).

For history of this section, see State v. Kirksey, 227 N.C. 445 , 42 S.E.2d 613, 1947 N.C. LEXIS 455 (1947); State v. Davis, 305 N.C. 400 , 290 S.E.2d 574, 1982 N.C. LEXIS 1348 (1982); State v. Strickland, 307 N.C. 274 , 298 S.E.2d 645, 1983 N.C. LEXIS 1078 (1983), overruled in part, State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

Repeal of Former G.S. 15-162.1 . —

The repeal of G.S. 15-162.1 , relating to guilty pleas, leaving this section intact, showed the 1969 legislature’s intent for this section to stand alone. State v. Atkinson, 275 N.C. 288 , 167 S.E.2d 241, 1969 N.C. LEXIS 393 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971).

The repeal of G.S. 15-162.1 did not modify, change, add to, or take from this section. State v. Hill, 276 N.C. 1 , 170 S.E.2d 885, 1969 N.C. LEXIS 335 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971); State v. Roseboro, 276 N.C. 1 85, 171 S.E.2d 886, 1970 N.C. LEXIS 664 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971); Garner v. State, 8 N.C. App. 109, 174 S.E.2d 92, 1970 N.C. App. LEXIS 1506 (1970).

Former G.S. 15-162.1 did not alter this section, which is capable of standing alone. State v. Roseboro, 276 N.C. 185 , 171 S.E.2d 886, 1970 N.C. LEXIS 664 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971); Garner v. State, 8 N.C. App. 109, 174 S.E.2d 92, 1970 N.C. App. LEXIS 1506 (1970).

Applicability of Common-Law Definition. —

By the Act of 1893, c. 85 (this section), the crime of murder has been divided into two degrees, first and second. The common-law definition and description are still applicable to the crime in the second degree; but it takes more than this to constitute murder in the first degree — the killing must be willful, deliberate and premeditated, and this must be shown by the State beyond a reasonable doubt before it is justified in asking a verdict of guilty of murder in the first degree. State v. Rhyne, 124 N.C. 847 , 33 S.E. 128, 1899 N.C. LEXIS 132 (1899).

The statutes where murder is divided into two degrees have not, as a general rule, added to or taken away any ingredient of murder at common law, and every murder at common law is murder under the statutes. See State v. Rhyne, 124 N.C. 847 , 33 S.E. 128, 1899 N.C. LEXIS 13 2 (1899); State v. Dalton, 178 N.C. 779 , 101 S.E. 548, 1919 N.C. LEXIS 557 (1919), dismissed, 185 N.C. 606 , 115 S.E. 881, 1923 N.C. LEXIS 124 (1923), dismissed, Jackson v. Mills, 185 N.C. 53 , 115 S.E. 881, 1923 N.C. LEXIS 13 (1923); State v. Streeton, 231 N.C. 301 , 56 S.E.2d 649, 1949 N.C. LEXIS 526 (1949).

This section does not give any new definition of murder, but permits that to remain as it was at common law. The section simply selects out of all murders denounced by common law those deemed more heinous on account of the mode of their perpetration, classifies them as murder in the first degree, and provides a greater punishment for them than that prescribed for “all other kinds of murder,” which it denominates murder in the second degree. State v. Streeton, 231 N.C. 301 , 56 S.E.2d 649, 1949 N.C. LEXIS 526 (1949).

The common-law “year and a day” rule has become “obsolete,” within the meaning of that term as used in G.S. 4-1 , and the rule is no longer part of the common law of North Carolina for any purpose. State v. Vance, 328 N.C. 613 , 403 S.E.2d 495, 1991 N.C. LEXIS 324 (1991).

A person is criminally responsible for a homicide only if his act caused or directly contributed to the death of the victim. State v. Brock, 305 N.C. 532 , 290 S.E.2d 566, 1982 N.C. LEXIS 1349 (1982).

The corpus delicti in criminal homicide involves two elements: (1) the fact of the death, and (2) the existence of the criminal agency of another as the cause of death. State v. Jensen, 28 N.C. App. 436, 221 S.E.2d 717, 1976 N.C. App. LEXIS 2723 (1976); State v. Perdue, 320 N.C. 51 , 357 S.E.2d 345, 1987 N.C. LEXIS 2179 (1987).

The corpus delicti consists of two requirements in homicide cases: (1) There must be a corpse or circumstantial evidence so strong and cogent that there can be no doubt of the death, and (2) the criminal agency must be shown. State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844, 1987 N.C. App. LEXIS 2638 (1987).

Criminal Agency of Another. —

Evidence of “criminal agency of another,” as that phrase has been used in defining the corpus delicti in homicide cases, means evidence which tends to show that the deceased died not as the result of natural or accidental causes, but by the hand of another. State v. Perdue, 320 N.C. 51 , 357 S.E.2d 345, 1987 N.C. LEXIS 2179 (1987).

Proof Required in Homicide Cases. —

In homicide cases, as in all criminal cases, the State must show that a crime was committed and that defendant committed it. State v. Perry, 293 N.C. 97 , 235 S.E.2d 52, 1977 N.C. LEXIS 861 (1977); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908, 1986 N.C. App. LEXIS 1991 (1986).

In any prosecution for a homicide the State must prove two things: (1) That the deceased died by virtue of a criminal act; and (2) that the act was committed by the defendant. State v. Jones, 280 N.C. 60 , 184 S.E.2d 862, 1971 N.C. LEXIS 1091 (1971); State v. McCall, 286 N.C. 472 , 212 S.E.2d 132, 1975 N.C. LEXIS 1243 (1975); State v. Furr, 292 N.C. 711 , 235 S.E.2d 193, 1977 N.C. LEXIS 1172 , cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (1977); State v. Hooper, 79 N.C. App. 93, 339 S.E.2d 70, 1986 N.C. App. LEXIS 1989 (1986), writ denied, 316 N.C. 198 , 341 S.E.2d 574, 1986 N.C. LEXIS 2028 (1986), rev'd, 318 N.C. 680 , 351 S.E.2d 286, 1987 N.C. LEXIS 1821 (1987).

Proof Must Be Beyond Reasonable Doubt. —

It makes no difference whether the State is relying on circumstantial or direct evidence, or both, the evidence must produce in the mind of the jurors a moral certainty of the defendant’s guilt, otherwise the State has not proven his guilt beyond a reasonable doubt. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Burden on State to Show Jurisdiction. —

In a murder prosecution, the defendant’s challenge to jurisdiction alleging the insufficiency of the evidence to show that the murder was committed in this State is not an affirmative defense. Rather, the State has the burden to show beyond a reasonable doubt that the courts of this State have jurisdiction to try the accused. Former cases to the contrary are no longer authoritative. State v. Batdorf, 293 N.C. 486 , 238 S.E.2d 497, 1977 N.C. LEXIS 974 (1977).

Inversion of Order of Proof on Motion to Suppress Did Not Shift Burden. —

In a prosecution for first-degree murder, the trial court did not err in requiring defendant to present his evidence before the State put on its evidence during a hearing on defendant’s motion to suppress, and there was no merit to defendant’s contention that the inversion of the order of proof resulted in a shift of the burden of proof, since the order of proof is merely a matter of practice without legal effect; there was nothing in the trial court’s order denying defendant’s motion to suppress to indicate that the trial judge believed otherwise; and defendant was not prejudiced by the order of proof because it resulted in his having to call one of the State’s principal witnesses as his own. State v. Temple, 302 N.C. 1 , 273 S.E.2d 273, 1981 N.C. LEXIS 1017 (1981).

A killing done with malice and not in self-defense is murder, even though the person killed may have been seeking to effect an unlawful arrest upon the defendant. State v. Sanders, 295 N.C. 361 , 245 S.E.2d 674, 1978 N.C. LEXIS 888 (1978).

Use of Deadly Weapon. —

In the absence of evidence of mitigating or justifying factors, all killings accomplished through the intentional use of a deadly weapon are deemed to be malicious and unlawful. State v. Porter, 326 N.C. 489 , 391 S.E.2d 144, 1990 N.C. LEXIS 246 (1990).

Hands as Deadly Weapons. —

When a strong or mature person makes an attack by hands alone on a small child, the jury may infer that the hands were used as deadly weapons. State v. Pierce, 346 N.C. 471 , 488 S.E.2d 576, 1997 N.C. LEXIS 477 (1997).

Separate sentences for attempted first degree murder and assault with a deadly weapon with intent to kill did not result in double jeopardy where each offense required proof of at least one element that the other did not. State v. Peoples, 141 N.C. App. 115, 539 S.E.2d 25, 2000 N.C. App. LEXIS 1290 (2000).

Attempt to Kill Is Not Murder. —

An attempt only, to kill, with the most diabolical intent, may be moral, but cannot be legal, murder. State v. Scates, 50 N.C. 420 , 1858 N.C. LEXIS 76 (1858).

Principals and Accessories Distinguished. —

The North Carolina law of homicide still maintains a careful distinction between principals and accessories. State v. Furr, 292 N.C. 711 , 235 S.E.2d 193, 1977 N.C. LEXIS 1172 , cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (1977).

There May Be Accessories to Murder in Both Degrees. —

Since malice, express or implied, is a constituent element of murder in any degree, there may be accessories before the fact to the crime of murder in both degrees. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Admittedly the concept of accessory before the fact presupposes some arrangement between the assessory and the principal with respect to the commission of the crime. It does not follow, however, that there can be no accessory before the fact to second-degree murder, which imports a specific intent to do an unlawful act. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

An accessory before the fact may be tried for first-degree murder although the principal has pled guilty to second-degree murder. State v. Larrimore, 340 N.C. 119 , 456 S.E.2d 789, 1995 N.C. LEXIS 242 (1995).

Acting in Concert. —

Under the principle of acting in concert, a person may be found guilty of an offense if he is present at the scene of the crime and the evidence is sufficient to show that he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. State v. Wilson, 322 N.C. 117 , 367 S.E.2d 589, 1988 N.C. LEXIS 297 (1988).

Independent Act by Subsequent Perpetrator. —

If one man inflicts a mortal wound, of which the victim is languishing, and then a second kills the deceased by an independent act, we cannot imagine how the first can be said to have killed him, without involving the absurdity of saying that the deceased was killed twice. In such a case, the two persons could not be indicted as joint murderers, because there was no understanding, or connection between them. State v. Gibson, 333 N.C. 29 , 424 S.E.2d 95, 1992 N.C. LEXIS 670 (1992) (citing State v. Scates, 50 N.C. (5 Jones) 420, 423-24 (1848)) .

One who procures another to commit murder is an accessory before the fact to murder. State v. Furr, 292 N.C. 711 , 235 S.E.2d 193, 1977 N.C. LEXIS 1172 , cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (1977).

The elements of being an accessory before the fact to murder are: (1) That defendant counseled, procured, commanded, encouraged or aided the principal to murder the victim; (2) that the principal did murder the victim; and (3) that defendant was not present when the crime was committed. State v. Sams, 317 N.C. 230 , 345 S.E.2d 179, 1986 N.C. LEXIS 2787 (1986); State v. Davis, 319 N.C. 620 , 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987).

In cases where a defendant is prosecuted as an accessory before the fact to murder, the State must prove beyond a reasonable doubt that the actions or statements of the defendant somehow caused or contributed to the actions of the principal, which in turn caused the victim’s death. State v. Davis, 319 N.C. 620 , 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987).

Where one incites or employs a mental defective to kill another the question whether the employer is guilty as a principal depends upon whether the defective was criminally responsible for his act under the McNaughten rule. If the agent is legally responsible for his own acts, the instigator is only an accessory before the fact if he is absent when the crime is committed. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Venue Allegations and Proof Not in Fatal Variance. —

Where indictment alleged that felony murder occurred in Buncombe County and the evidence disclosed that the kidnapping, an essential element of the crime, occurred in Buncombe County, there was no fatal variance between the allegations in the indictment and proof at trial that victim actually died in Ashe County. State v. Vines, 317 N.C. 242 , 345 S.E.2d 169, 1986 N.C. LEXIS 2786 (1986).

Murder and Conspiracy Not Merged. —

Failure of the trial judge to merge defendant’s convictions when he granted codefendant’s motion for merger of conspiracy conviction with first-degree murder conviction neither violated defendant’s equal protection rights nor constituted error, where the evidence established that codefendant was not present at the actual murder, and his liability for the murder was predicated solely on his participation in the conspiracy, while defendant, on the other hand, not only conspired to murder victim, but actually participated in killing her. State v. Lowery, 318 N.C. 54 , 347 S.E.2d 729, 1986 N.C. LEXIS 2566 (1986).

Kidnapping Conviction Vacated. —

Where the placing of a gag over the victim’s mouth could not have been the proximate cause of her death without the binding of her hands and feet, which prevented the removal of the gag, so that the victim’s death would not have occurred without these other ligatures, the restraint of the victim which resulted in her murder was indistinguishable from the restraint used by the State to support the kidnapping charge, and defendant’s kidnapping conviction would be vacated. State v. Prevette, 317 N.C. 148 , 345 S.E.2d 159, 1986 N.C. LEXIS 2784 (1986).

First degree kidnapping is not a lesser included offense of murder. State v. Fernandez, 346 N.C. 1 , 484 S.E.2d 350, 1997 N.C. LEXIS 197 (1997).

First degree kidnapping requires the State to prove facts not required to prove murder, and it addresses a distinct evil, the kidnapping of and failure to release the victim in a safe place or condition; thus, at least one essential element of each crime is not an element of the other. State v. Fernandez, 346 N.C. 1 , 484 S.E.2d 350, 1997 N.C. LEXIS 197 (1997).

The charging of both felonious assault and attempted murder as to each victim was not error although these charges arose out of the same incident; substantial evidence existed against defendant of every essential element of both. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388, 2000 N.C. App. LEXIS 1405 (2000).

Killing of Viable But Unborn Child Is Not Murder. —

Where second count charged that defendant unlawfully, willfully and feloniously did of malice aforethought kill and murder baby girl, a viable but unborn child, in violation of this section, trial judge improperly denied defendant’s motion to dismiss second count of indictment since unlawful, willful and felonious killing of viable but unborn child is not murder within meaning of this section. State v. Beale, 324 N.C. 87 , 376 S.E.2d 1, 1989 N.C. LEXIS 21 (1989).

Jurisdiction Shown. —

Evidence as a whole amounted to a prima facie showing of jurisdiction sufficient to carry the case to the jury and to permit the jury to infer that the murder took place in this State, where the evidence tended to show that there was a breaking and entering at the victim’s home, that acts of violence took place there, and that the cement block and rock used by the killer to sink the victim’s body in creek were taken from the victim’s yard; a reasonable inference from this evidence is that the victim was dead when the cement block and rock were taken from her yard and placed in her car with her body for use in its disposal. State v. Rick, 342 N.C. 91 , 463 S.E.2d 182, 1995 N.C. LEXIS 535 (1995).

Instruction on Burden to Prove Jurisdiction Required. —

Where the defendant challenged the facts of jurisdiction, but the trial court did not instruct the jury as to which party bore the burden of proving jurisdiction and that if the jury was unconvinced beyond a reasonable doubt that the murder, or the essential elements of murder, occurred in North Carolina, it should return a special verdict so indicating, it was necessary to remand the case for a new trial on the charge of second-degree murder. State v. Rick, 342 N.C. 91 , 463 S.E.2d 182, 1995 N.C. LEXIS 535 (1995).

Death Need Not Be Intended for Conviction. —

While defendant may not have intended to join the codefendant in shooting and killing the victim, defendant’s intent was irrelevant under an acting in concert theory of felony murder in violation of G.S. 14-17 ; as long as defendant joined the codefendant in committing a felony, defendant was responsible for all other crimes committed in a single transaction that were in furtherance of a common purpose or plan. State v. Herring, 176 N.C. App. 395, 626 S.E.2d 742, 2006 N.C. App. LEXIS 521 (2006), cert. dismissed, 365 N.C. 334 , 2011 N.C. LEXIS 1167 (2011).

Defendant had no right to a reversal in his murder trial, despite his claim that the indictment was insufficient for saying only that he violated G.S. 14-17 . The indictment met requirements of G.S. 15-144 . State v. Elliott, 360 N.C. 400 , 628 S.E.2d 735, 2006 N.C. LEXIS 46 (2006), cert. denied, 549 U.S. 1000, 127 S. Ct. 505, 166 L. Ed. 2d 378, 2006 U.S. LEXIS 8127 (2006), writ denied, 364 N.C. 437 , 702 S.E.2d 498, 2010 N.C. LEXIS 762 (2010).

Entitlement to Parole Ineligibility Instruction. —

Where a State prisoner, who was convicted of first-degree murder, first-degree rape, kidnapping, armed robbery, and the burning of personal property, in violation of G.S. 14-17 , 14-27.2(a)(2), 14-39, 14-87, and 14-66, argued that the sentencing court erred by failing to provide a parole ineligibility instruction, the prisoner, who was sentenced to death for the murder conviction, was not entitled to federal habeas corpus relief because the prisoner would have been eligible for parole under former G.S. 15A-1371(a1) if the jury had recommended life imprisonment; thus, because the prisoner was eligible for parole as a matter of law, the prisoner was not entitled to a parole ineligibility instruction. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

Mitigating Circumstances. —

Where a State prisoner, who was sentenced to death for committing first-degree murder, in violation of G.S. 14-17 , argued that his attorneys were ineffective because they failed to adequately present mitigating evidence concerning his life history and his mental health, the prisoner was not entitled to federal habeas corpus relief because (1) the prisoner’s sisters testified at sentencing about the prisoner’s dysfunctional childhood; (2) the prisoner instructed the attorneys not to introduce further evidence of his background; and (3) a doctor testified at sentencing that the prisoner’s mental disorders impaired his ability to control his behavior; furthermore, the prisoner could not demonstrate prejudice because the additional evidence identified by the prisoner was largely cumulative and the jury found that four severe aggravating circumstances under G.S. 15A-2000 outweighed any mitigating circumstances. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

Indictment Upheld. —

In light of State v. Jones , 616 S.E.2d 496 (N.C. 2005), which held that an indictment comported with both statutory and constitutional requirements, defendant’s indictment for “attempted murder” was not defective, even though it lacked allegations that defendant acted with the specific intent to kill, premeditation, or deliberation. State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409, 2007 N.C. App. LEXIS 360 (2007).

Indictment Sufficient for Conspiracy to Commit Attempted First-Degree Murder. —

Indictment charging defendant with conspiracy to commit attempted first-degree murder was valid because conspiracy to commit attempted first-degree murder was a cognizable offense as the crime of attempt did not require failure as an essential element and, with all other elements of conspiracy appearing in the indictment, was adequately charged. State v. Lyons, 268 N.C. App. 603, 836 S.E.2d 917, 2019 N.C. App. LEXIS 974 (2019).

Arrest of Judgment Proper. —

Trial court did not err by electing to arrest judgment on a felonious child abuse with a deadly weapon conviction as only one felony was necessary to support a felony murder conviction, and the jury found that five felonies could support a felony murder charge including forcible rape, statutory rape, forcible sex offense, statutory sex offense, and felony child abuse with a deadly weapon. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

II.Murder in the First Degree Generally

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Payne, 213 N.C. 719 , 197 S.E. 573, 1938 N.C. LEXIS 184 (1938); State v. Hawkins, 214 N.C. 326 , 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Starnes, 220 N.C. 384 , 17 S.E.2d 346, 1941 N.C. LEXIS 543 (1941); State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402 , 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271 , 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Downey, 253 N.C. 348 , 117 S.E.2d 39, 1960 N.C. LEXIS 663 (1960); State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969); State v. Robbins, 275 N.C. 537 , 169 S.E.2d 858, 1969 N.C. LEXIS 436 (1969); State v. Reams, 277 N.C. 391 , 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971); State v. Duboise, 279 N.C. 73 , 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971); State v. Fountain, 282 N.C. 58 , 191 S.E.2d 674, 1972 N.C. LEXIS 886 (1972); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675 , cert. denied, 284 N.C. 256 , 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. Sparks, 285 N.C. 631 , 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976); State v. McLaughlin, 286 N.C. 597 , 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976); State v. Patterson, 288 N.C. 553 , 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976); State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. McCall, 289 N.C. 512 , 223 S.E.2d 303, 1976 N.C. LEXIS 1327 , vacated in part, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278, 1976 U.S. LEXIS 3242 (1976); State v. Smith, 290 N.C. 148 , 226 S.E.2d 10, 1976 N.C. LEXIS 1048 , cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Biggs, 292 N.C. 328 , 233 S.E.2d 512, 1977 N.C. LEXIS 1093 (1977); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105 , 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320 , 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978); State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Fleming, 296 N.C. 559 , 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979); State v. Martin, 303 N.C. 246 , 278 S.E.2d 214, 1981 N.C. LEXIS 1106 , cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240 (1981); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982); State v. Marshall, 304 N.C. 167 , 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Calloway, 305 N.C. 747 , 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Russell Council Judge, 308 N.C. 658 , 303 S.E.2d 817, 1983 N.C. LEXIS 1303 (1983); State v. Hamlet, 312 N.C. 162 , 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Huffstetler, 312 N.C. 92 , 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Rogers, 316 N.C. 203 , 341 S.E.2d 713, 1986 N.C. LEXIS 2137 (1986), overruled in part, State v. Vandiver, 321 N.C. 570 , 364 S.E.2d 373, 1988 N.C. LEXIS 111 (1988); State v. Jackson, 317 N.C. 1 , 343 S.E.2d 814, 1986 N.C. LEXIS 2425 (1986), vacated, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133, 1987 U.S. LEXIS 601 (1987), overruled in part, State v. Abbott, 320 N.C. 475 , 358 S.E.2d 365, 1987 N.C. LEXIS 2296 (1987); State v. Saunders, 317 N.C. 308 , 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986); State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986); State v. Bonney, 329 N.C. 61 , 405 S.E.2d 145, 1991 N.C. LEXIS 420 (1991); State v. Geddie, 345 N.C. 73 , 478 S.E.2d 146, 1996 N.C. LEXIS 649 (1996).

Murder in the first degree is sometimes defined briefly as murder in the second degree plus premeditation. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Murder in the first degree differs from murder in the second degree in that it requires premeditation and deliberation. State v. Marshall, 304 N.C. 167 , 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981).

For discussion of language found in this section which defines murder in the first degree, see State v. Strickland, 307 N.C. 274 , 298 S.E.2d 645, 1983 N.C. LEXIS 1078 (1983), overruled in part, State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

Elements of First-Degree Murder. —

In order to convict a defendant of first-degree murder the State is required to produce evidence which satisfies the jury beyond a reasonable doubt that he unlawfully killed a person with malice and in the execution of an actual specific intent to kill, formed after premeditation and deliberation. State v. Hamby, 276 N.C. 674 , 174 S.E.2d 385, 1970 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Sanders, 276 N.C. 598 , 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Mitchell, 288 N.C. 360 , 218 S.E.2d 332, 1975 N.C. LEXIS 984 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4211 (1976).

The elements required for conviction of first degree murder are (1) the unlawful killing of another human being; (2) with malice; and (3) with premeditation and deliberation. State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103, 2001 N.C. App. LEXIS 990 (2001).

Motive Is Not an Essential Element. —

It is not necessary to a conviction of murder that the State prove motive. State v. Adams, 136 N.C. 617 , 48 S.E. 589, 1904 N.C. LEXIS 313 (1904); State v. McDowell, 145 N.C. 563 , 59 S.E. 690, 1907 N.C. LEXIS 332 (1907); State v. Van Landingham, 283 N.C. 589 , 197 S.E.2d 539, 1973 N.C. LEXIS 1025 (1973).

But Its Presence or Absence May Be Considered. —

Motive is not an essential element of murder; however, while not necessary to be proven, motive or the absence of motive is a circumstance to be considered. State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63, 1973 N.C. App. LEXIS 1343 , cert. denied, 283 N.C. 106 , 194 S.E.2d 634, 1973 N.C. LEXIS 910 (1973).

Circumstances to Be Considered. —

There is premeditation and deliberation when there are jury findings of (1) an absence of provocation on the part of the deceased, (2) the dealing of lethal blows by the defendants after the deceased had been rendered helpless, and (3) a killing accomplished in a brutal manner through the infliction of numerous mortal wounds. State v. Johnston, 331 N.C. 680 , 417 S.E.2d 228, 1992 N.C. LEXIS 407 (1992).

In the context of attempted first-degree murder, circumstances that may tend to prove premeditation and deliberation include: (1) lack of provocation by the intended victim or victims; (2) conduct and statements of the defendant both before and after the attempted killing; (3) threats made against the intended victim or victims by the defendant; and (4) ill will or previous difficulty between the defendant and intended victim or victims. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906, 1998 N.C. App. LEXIS 1305 (1998), cert. denied, 651 S.E.2d 225, 2007 N.C. LEXIS 883 (N.C. 2007).

First Degree Murder Is Capital Felony. —

Defendant was convicted of a capital felony under G.S. 14-5.2 and G.S. 14-17 because she was convicted of first-degree murder; State v. Grainger, 224 N.C. App. 623, 741 S.E.2d 364, 2012 N.C. App. LEXIS 1476 (2012), rev'd, 367 N.C. 696 , 766 S.E.2d 280, 2014 N.C. LEXIS 946 (2014).

The State’s case may be strengthened by the showing of a motive when the evidence is circumstantial. State v. Turner, 143 N.C. 641 , 57 S.E. 158, 1907 N.C. LEXIS 85 (1907); State v. Stratford, 149 N.C. 483 , 62 S.E. 882, 1908 N.C. LEXIS 380 (1908); State v. Van Landingham, 283 N.C. 589 , 197 S.E.2d 539, 1973 N.C. LEXIS 1025 (1973).

It is not required that the State show motive for a killing, but evidence of motive, if otherwise admissible, is not only competent, but often very important, in strengthening the evidence for the prosecution. State v. Richards, 294 N.C. 474 , 242 S.E.2d 844, 1978 N.C. LEXIS 1287 (1978).

And motive may be shown to identify the prisoner as the perpetrator of the crime, and to establish malice, deliberation, and premeditation. State v. Adams, 138 N.C. 688 , 50 S.E. 765, 1905 N.C. LEXIS 317 (1905); State v. Wilkins, 158 N.C. 603 , 73 S.E. 992, 1912 N.C. LEXIS 98 (1912).

But motive, standing alone, is insufficient to support a conviction for murder. State v. Lee, 34 N.C. App. 106, 237 S.E.2d 315, 1977 N.C. App. LEXIS 1588 (1977), aff'd, 294 N.C. 299 , 240 S.E.2d 449, 1978 N.C. LEXIS 1235 (1978).

A specific intent to kill is an essential element of first degree murder. State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972).

A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation in first degree murder. State v. Propst, 274 N.C. 62 , 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976); State v. Robbins, 275 N.C. 537 , 169 S.E.2d 858, 1969 N.C. LEXIS 436 (1969); State v. Sparks, 285 N.C. 631 , 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976); State v. McLaughlin, 286 N.C. 597 , 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976); State v. Cooper, 286 N.C. 549 , 213 S.E.2d 305, 1975 N.C. LEXIS 1266 (1975); State v. Shepherd, 288 N.C. 346 , 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975); State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

Before a conviction for murder can be had, an unlawful and intentional taking of another’s life must be shown. Sometimes the intent may be imputed by reason of the killing with a deadly weapon, or by circumstances which indicate a reckless indifference to human life, but it must always exist before a charge of murder can be sustained. State v. Stitt, 146 N.C. 643 , 61 S.E. 566, 1908 N.C. LEXIS 279 (1908).

It is the duty of the State to allege and prove that the killing, though done with a deadly weapon, was intentional or willful. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

There was sufficient evidence to permit the jury to conclude that defendant intended to kill the store-owner’s wife; defendant fired several shots upon entering the store, hitting the victims, both of whom were behind the counter, after the wife opened the cash drawer, defendant shot her and took the money, the wife was shot in the head and arm while the owner was shot twice in the chest, killing him, and there was no evidence that either victim provoked defendant or resisted. State v. Poag, 159 N.C. App. 312, 583 S.E.2d 661, 2003 N.C. App. LEXIS 1504 (2003).

Trial court properly denied motion to dismiss the charge of attempted murder of an infant child as the State presented sufficient evidence of defendant’s specific intent to kill the child by showing that defendant carjacked a woman and her infant child, drove the woman and her infant child to a deserted area, raped the woman, beat the woman to death, and drove away while leaving the child behind in his diapers on a hot day in grass a foot tall at the deserted area. Additionally, a pediatric critical care expert testified that the infant’s injuries, especially sunburns, were life-threatening and that if the infant had not been found by a passerby before nightfall he could have died as a result of exposure and dehydration. State v. Edwards, 174 N.C. App. 490, 621 S.E.2d 333, 2005 N.C. App. LEXIS 2487 (2005).

The act of killing, and the guilty intent, must concur to constitute the offense. State v. Scates, 50 N.C. 420 , 1858 N.C. LEXIS 76 (1858).

The intent to kill must arise from a fixed determination previously formed after weighing the matter. State v. Myers, 309 N.C. 78 , 305 S.E.2d 506, 1983 N.C. LEXIS 1307 (1983); State v. Welch, 316 N.C. 578 , 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998).

Burden of Persuasion as to Intent. —

On the element of a deliberate and premeditated specific intent to kill in a first-degree murder case defendant has no burden of persuasion at all; the burden of persuasion on the existence of this element remains throughout the trial on the State. State v. Mash, 323 N.C. 339 , 372 S.E.2d 532, 1988 N.C. LEXIS 608 (1988).

Formation of Intent. —

The deliberate strangling of a person to death, taken in consideration with the statement of the victim that if her son left the room the defendant would kill her, and with her plea to the defendant to let her write a letter to her son before he killed her, presents sufficient evidence of intent to kill to submit to the jury. State v. Norman, 331 N.C. 738 , 417 S.E.2d 233, 1992 N.C. LEXIS 414 (1992).

There was evidence from which a jury could find the defendant formed the intent to kill his wife for some period of time before the killing where the defendant said that as he was arguing with his wife, he remembered what a friend had told him about his son’s passing out after holding his breath and the defendant decided to choke his wife until she passed out. State v. Norman, 331 N.C. 738 , 417 S.E.2d 233, 1992 N.C. LEXIS 414 (1992).

State Must Show That Defendant Had Formed Purpose to Kill Deceased. —

Before a conviction for murder in the first degree can be had, the State must show that the prisoner had formed, prior to the killing, with deliberation and premeditation, a purpose to kill deceased. State v. Terry, 173 N.C. 761 , 92 S.E. 154, 1917 N.C. LEXIS 411 (1917); State v. Benson, 183 N.C. 795 , 111 S.E. 869, 1922 N.C. LEXIS 373 (1922). See 5 N.C.L. Rev. 364.

If the circumstances of the killing show a formed design to take life of deceased, the crime is murder in the first degree. State v. Walker, 173 N.C. 780 , 92 S.E. 327, 1917 N.C. LEXIS 415 (1917); State v. Cain, 178 N.C. 724 , 100 S.E. 884, 1919 N.C. LEXIS 547 (1919).

If defendant resolved in his mind a fixed purpose to kill his wife and thereafter, because of that previously formed intention and not because of any legal provocation on her part, he deliberately and intentionally shot her, the three essential elements of murder in the first degree, i.e., premeditation, deliberation, and malice, concurred. State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969); State v. Martin, 303 N.C. 246 , 278 S.E.2d 214, 1981 N.C. LEXIS 1106 , cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240 (1981).

But where defendant, intending to kill a certain person, by mistake inflicts fatal injuries on another, he is guilty in the same degree as though he had killed the person intended, and therefore an instruction that if the jury should be satisfied beyond a reasonable doubt that defendant intended to kill a certain person with malice and with premeditation and deliberation and that by mistake he shot and killed deceased, defendant would be guilty of murder in the first degree is without error. State v. Burney, 215 N.C. 598 , 3 S.E.2d 24, 1939 N.C. LEXIS 323 (1939).

Where Intent and Act Are Simultaneous There Is No Murder in First Degree. —

Where the intent to kill is formed simultaneously with the act of killing, the homicide is not murder in the first degree. State v. Dowden, 118 N.C. 1145 , 24 S.E. 722, 1896 N.C. LEXIS 186 (1896); State v. Barrett, 142 N.C. 565 , 54 S.E. 856, 1906 N.C. LEXIS 289 (1906).

Where the killing was the product of a specific intent to kill formed under the influence of the provocation of the quarrel or struggle itself, then there would be no deliberation and hence no murder in the first degree. State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

Although there may have been time for deliberation, if the purpose to kill was formed and immediately executed in a passion, especially if the passion was aroused by a recent provocation or by mutual combat, the murder is not deliberate and premeditated. State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

If the accused previously procured a weapon for the purpose of using it, and does use it, the offense is ordinarily murder. State v. Johnson, 172 N.C. 920 , 90 S.E. 426, 1916 N.C. LEXIS 445 (1916).

Intent May Be Proved by Circumstantial Evidence. —

Intent, a necessary element of murder in the second degree, is a mental attitude which can rarely be proved by direct evidence. It must ordinarily be proved by circumstances from which it can be inferred. State v. Hugenberg, 34 N.C. App. 91, 237 S.E.2d 327, 1977 N.C. App. LEXIS 1585 , cert. denied, 293 N.C. 591 , 238 S.E.2d 151, 1977 N.C. LEXIS 998 (1977).

Intent Is Question for Jury. —

The jury alone may determine whether an intentional killing has been established where no judicial admission of the fact is made by the defendant. State v. Todd, 264 N.C. 524 , 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965).

Specific intent to kill shown. —

Trial court properly denied defendant’s motion to dismiss charge of attempted first degree murder in violation of G.S. 14-17 , as defendant’s acts of kidnapping his infant daughter and leaving her in a shed in freezing weather for two days, coupled with his stated interest in avoiding having to pay child support, showed a specific intent to kill the child. State v. Pittman, 174 N.C. App. 745, 622 S.E.2d 135, 2005 N.C. App. LEXIS 2583 (2005), vacated in part, 361 N.C. 156 , 696 S.E.2d 524, 2006 N.C. LEXIS 1412 (2006).

State presented sufficient evidence that defendant had the necessary specific intent for premeditated murder, as a reasonable juror could find from the evidence that defendant picked particular men to run over with defendant’s vehicle, drove directly at them or lured them into the direct path of the vehicle, and then tried to run over them not once, but in a manner designed to maximize the damage. State v. Shareef, 221 N.C. App. 285, 727 S.E.2d 387, 2012 N.C. App. LEXIS 765 (2012).

Culpable negligence may not be used to satisfy the intent requirements for a first-degree murder charge under this section. State v. Jones, 353 N.C. 159 , 538 S.E.2d 917, 2000 N.C. LEXIS 894 (2000).

Premeditation and Deliberation Are Essential Elements of First Degree Murder. —

For a conviction of murder in the first degree the killing must be done with willful premeditation and determination. State v. McKay, 150 N.C. 813 , 63 S.E. 1059, 1909 N.C. LEXIS 162 (1909); State v. Baldwin, 152 N.C. 822 , 68 S.E. 148, 1910 N.C. LEXIS 389 (1910).

The law is fixed by the statute, that the killing must be willful, upon premeditation and with deliberation, and where there is no evidence tending to prove this, the jury should be so instructed, and the question of guilt on the charge of murder in the first degree ought not to be submitted to them. State v. Rhyne, 124 N.C. 847 , 33 S.E. 128, 1899 N.C. LEXIS 132 (1899).

To convict a defendant of murder in the first degree, when the killing was not perpetrated by one of the means specified by this section and was not committed in the perpetration of or attempt to perpetrate a felony, the State must prove beyond a reasonable doubt that the killing was with premeditation and deliberation. State v. Cooper, 286 N.C. 549 , 213 S.E.2d 305, 1975 N.C. LEXIS 1266 (1975); Barfield v. Harris, 540 F. Supp. 451, 1982 U.S. Dist. LEXIS 12690 (E.D.N.C. 1982), aff'd, 719 F.2d 58, 1983 U.S. App. LEXIS 16325 (4th Cir. 1983).

The evidence was sufficient to support conviction for murder by lying in wait where defendant entered victim’s home while he was sleeping, armed himself, watched the victim come out of his room and followed him to the laundry room where he shot him. State v. Aikens, 342 N.C. 567 , 467 S.E.2d 99, 1996 N.C. LEXIS 17 (1996).

Where defendant had to move from hallway into living room to retrieve gun and then return to shoot victim and afterwards defendant concealed the body and rifle and drove them to another town to dispose of them, the evidence permitted a reasonable inference that defendant premeditated and deliberated killing. State v. Jones, 342 N.C. 628 , 467 S.E.2d 233, 1996 N.C. LEXIS 18 (1996).

Premeditation and Deliberation Must Be Shown in Addition to Presumption of Malice. —

The presumption which arises from the use of a deadly weapon in the commission of a homicide is that the killing was unlawful and that it was done with malice, which constitutes murder in the second degree, and in order for such homicide to constitute murder in the first degree the State must show beyond a reasonable doubt that it was done with premeditation and deliberation. State v. Miller, 197 N.C. 445 , 149 S.E. 590, 1929 N.C. LEXIS 264 (1929); State v. Perry, 209 N.C. 604 , 184 S.E. 545, 1936 N.C. LEXIS 307 (1936); State v. Floyd, 226 N.C. 571 , 39 S.E.2d 598, 1946 N.C. LEXIS 274 (1946); State v. Propst, 274 N.C. 62 , 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

Unless Murder Was Committed by Means Specifically Stated in Section. —

This section’s plain language requires proof of premeditation only in a murder committed by some means not specifically stated in the statute. Barfield v. Harris, 540 F. Supp. 451, 1982 U.S. Dist. LEXIS 12690 (E.D.N.C. 1982), aff'd, 719 F.2d 58, 1983 U.S. App. LEXIS 16325 (4th Cir. 1983).

When a homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture, the means and method used involves planning and purpose. Hence, the law presumes premeditation and deliberation. The act speaks for itself. State v. Dunheen, 224 N.C. 738 , 32 S.E.2d 322, 1944 N.C. LEXIS 244 (1944).

Premeditation and Deliberation Generally. —

Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Small, 328 N.C. 175 , 400 S.E.2d 413, 1991 N.C. LEXIS 87 (1991).

Premeditation and deliberation generally must be established by circumstantial evidence, because they ordinarily are not susceptible to proof by direct evidence. “Premeditation” means that the defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing. “Deliberation” means an intent to kill executed by the defendant in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Bonney, 329 N.C. 61 , 405 S.E.2d 145, 1991 N.C. LEXIS 420 (1991).

“Premeditation” means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906, 1998 N.C. App. LEXIS 1305 (1998), cert. denied, 651 S.E.2d 225, 2007 N.C. LEXIS 883 (N.C. 2007).

“Deliberation” means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906, 1998 N.C. App. LEXIS 1305 (1998), cert. denied, 651 S.E.2d 225, 2007 N.C. LEXIS 883 (N.C. 2007).

Defendant’s convictions for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury did not violate his right to be free of double jeopardy; in order to obtain a conviction for attempted first-murder, the State had to prove premeditation and deliberation, whereas it did not have to prove those elements to obtain a conviction for assault with a deadly weapon, which was a different offense requiring both proof of the use of a deadly weapon and proof of serious injury. State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687, 2005 N.C. App. LEXIS 1907 (2005).

First degree murder charge was not dismissed because the State presented sufficient evidence of premeditation and deliberation; there was no provocation on the part of the victim, and defendant’s act of lunging and delivering a fatal blow as the victim was backing away was inconsistent with self-defense. State v. Clark, 231 N.C. App. 421, 752 S.E.2d 709, 2013 N.C. App. LEXIS 1313 (2013).

State introduced substantial evidence of undignified treatment and concealment of the victim’s body and efforts to destroy evidence of the brutal murder that supported a reasonable inference of premeditation and deliberation on the part of defendant; the body had been stripped naked, arranged in a fetal position, bound with duct tape and wrapped in three black trash bags before being transported to the grave and buried. N.C. v. Bradley, 279 N.C. App. 389, 864 S.E.2d 850, 2021- NCCOA-495, 2021 N.C. App. LEXIS 513 (2021).

Premeditation and Deliberation Embrace Term “Malice Aforethought”. —

“Malice aforethought” was a term used in defining murder prior to the time of the adoption of this section dividing murder into degrees. As then used it did not mean an actual, express or preconceived disposition, but imported an intent, at the moment, to do without lawful authority, and without the pressure of necessity, that which the law forbade. As used in this section, the term premeditation and deliberation is more comprehensive and embraces all that is meant by aforethought, and more. State v. Hightower, 226 N.C. 62 , 36 S.E.2d 649, 1946 N.C. LEXIS 370 (1946); State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Premeditation is a prior determination to do the act. State v. Cameron, 166 N.C. 379 , 81 S.E. 748, 1914 N.C. LEXIS 411 (1914); State v. Bowser, 214 N.C. 249 , 199 S.E. 31, 1938 N.C. LEXIS 313 (1938); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675 , cert. denied, 284 N.C. 256 , 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. Baggett, 293 N.C. 307 , 237 S.E.2d 827, 1977 N.C. LEXIS 935 (1977); State v. Poole, 298 N.C. 254 , 258 S.E.2d 339, 1979 N.C. LEXIS 1356 (1979).

Premeditation means thought of beforehand, for some length of time, however short. State v. Benson, 183 N.C. 795 , 111 S.E. 869, 1922 N.C. LEXIS 373 (1922); State v. Hawkins, 214 N.C. 326 , 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402 , 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271 , 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Sanders, 276 N.C. 598 , 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Reams, 277 N.C. 391 , 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971); State v. Fountain, 282 N.C. 58 , 191 S.E.2d 674, 1972 N.C. LEXIS 886 (1972); State v. Britt, 285 N.C. 256 , 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. Smith, 290 N.C. 148 , 226 S.E.2d 10, 1976 N.C. LEXIS 1048 , cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Biggs, 292 N.C. 328 , 233 S.E.2d 512, 1977 N.C. LEXIS 1093 (1977); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105 , 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320 , 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978); State v. Barbour, 295 N.C. 66 , 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Corn, 303 N.C. 293 , 278 S.E.2d 221, 1981 N.C. LEXIS 1105 (1981); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Marshall, 304 N.C. 167 , 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Calloway, 305 N.C. 747 , 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Tysor, 307 N.C. 679 , 300 S.E.2d 366, 1983 N.C. LEXIS 1113 (1983); State v. Lowery, 309 N.C. 763 , 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (1983); State v. Hamlet, 312 N.C. 162 , 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Huffstetler, 312 N.C. 92 , 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985); State v. Welch, 316 N.C. 578 , 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998); State v. Saunders, 317 N.C. 308 , 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986).

Premeditation means that defendant formed the specific intent to kill the victim for some period of time, however short, before the actual killing. State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982); State v. Truesdale, 340 N.C. 229 , 456 S.E.2d 299, 1995 N.C. LEXIS 237 (1995).

“Premeditation” means that defendant formed the specific intent to kill for a period of time, however short, before the killing. State v. Lyons, 340 N.C. 646 , 459 S.E.2d 770, 1995 N.C. LEXIS 391 (1995).

Deliberation does not require brooding or reflection for any appreciable length of time, but imports the execution of an intent to kill in a cool state of blood without legal provocation, and in furtherance of a fixed design. State v. Britt, 285 N.C. 256 , 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Myers, 299 N.C. 671 , 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981).

Deliberation means that the action was done in a cool state of blood and does not require reflection or brooding for an apparent length of time, but rather an intention to kill executed by defendant in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose and not under the influence of a violent passion, suddenly aroused by just cause or legal provocation. State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Deliberation Means That the Act Is Done in Cool State of Blood. —

It does not mean brooding over it or reflecting upon it for a week, a day or an hour, or any other appreciable length of time, but it means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. State v. Benson, 183 N.C. 795 , 111 S.E. 869, 1922 N.C. LEXIS 373 (1922); State v. Bowser, 214 N.C. 249 , 199 S.E. 31, 1938 N.C. LEXIS 313 (1938); State v. Hawkins, 214 N.C. 326 , 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402 , 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271 , 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Reams, 277 N.C. 391 , 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971); State v. Fountain, 282 N.C. 58 , 191 S.E.2d 674, 1972 N.C. LEXIS 886 (1972); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675 , cert. denied, 284 N.C. 256 , 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. Barbour, 295 N.C. 66 , 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Poole, 298 N.C. 254 , 258 S.E.2d 339, 1979 N.C. LEXIS 1356 (1979); State v. Forrest, 321 N.C. 186 , 362 S.E.2d 252, 1987 N.C. LEXIS 2561 (1987).

Deliberation means an intention to kill, executed by the defendant in a cool state of blood, in furtherance of a fixed design or to accomplish some unlawful purpose, and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. State v. Sanders, 276 N.C. 598 , 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Biggs, 292 N.C. 328 , 233 S.E.2d 512, 1977 N.C. LEXIS 1093 (1977); State v. Marshall, 304 N.C. 167 , 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Bush, 307 N.C. 152 , 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995); State v. Tysor, 307 N.C. 679 , 300 S.E.2d 366, 1983 N.C. LEXIS 1113 (1983); State v. Russell Council Judge, 308 N.C. 658 , 303 S.E.2d 817, 1983 N.C. LEXIS 1303 (1983); State v. Lowery, 309 N.C. 763 , 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (1983); State v. Hamlet, 312 N.C. 162 , 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Huffstetler, 312 N.C. 92 , 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986); State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986).

Deliberation means an intention to kill, executed by defendant in a cool state of blood, in furtherance of a fixed design or to accomplish some unlawful purpose. State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. Smith, 290 N.C. 148 , 226 S.E.2d 10, 1976 N.C. LEXIS 1048 , cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105 , 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320 , 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978).

Deliberation means revolving over in the mind. A deliberate act is one done in a cool state of blood in furtherance of some fixed design. State v. Robbins, 275 N.C. 537 , 169 S.E.2d 858, 1969 N.C. LEXIS 436 (1969).

An unlawful killing is committed with deliberation if it is done in a “cool state of blood,” without legal provocation, and in furtherance of a fixed design to gratify a feeling of revenge, or to accomplish some unlawful purpose. State v. Corn, 303 N.C. 293 , 278 S.E.2d 221, 1981 N.C. LEXIS 1105 (1981); State v. Calloway, 305 N.C. 747 , 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Russell Council Judge, 308 N.C. 658 , 303 S.E.2d 817, 1983 N.C. LEXIS 1303 (1983); State v. Myers, 309 N.C. 78 , 305 S.E.2d 506, 1983 N.C. LEXIS 1307 (1983); State v. Welch, 316 N.C. 578 , 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998); State v. Saunders, 317 N.C. 308 , 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986).

Deliberation means that the defendant formed the intent to kill in a cool state of blood and not as a result of a violent passion due to sufficient provocation. State v. Truesdale, 340 N.C. 229 , 456 S.E.2d 299, 1995 N.C. LEXIS 237 (1995).

“Deliberation” means that defendant formed an intent to kill and carried out that intent in a cool state of blood, in furtherance of a fixed design for revenge or other unlawful purpose and not under the influence of a violent passion, suddenly aroused by some lawful or just cause or legal provocation. State v. Lyons, 340 N.C. 646 , 459 S.E.2d 770, 1995 N.C. LEXIS 391 (1995).

A defendant is said to have deliberated over a killing if he acted in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose, and he was not under the influence of a violent passion suddenly aroused by lawful or just cause or legal provocation. State v. Owen, 130 N.C. App. 505, 503 S.E.2d 426, 1998 N.C. App. LEXIS 1001 (1998).

Deliberation means that the intent to kill was formed while defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation. State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791 (1981); State v. Fullwood, 323 N.C. 371 , 373 S.E.2d 518 (1988) sentence vacated and remanded for further consideration at 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990) in light of 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235 (1973).

“Cool state of blood” does not mean the absence of passion and emotions, but an unlawful killing is deliberate and premeditated if done pursuant to a fixed design to kill, notwithstanding that defendant was angry or in an emotional state at the time, unless such anger or emotion was such as to disturb the faculties and reason. State v. Britt, 285 N.C. 256 , 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Marshall, 304 N.C. 167 , 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Saunders, 317 N.C. 308 , 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986); State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986).

In the context of determining the existence of deliberation, however, the term “cool state of blood” does not mean an absence of passion and emotion. One may deliberate, may premeditate, and may intend to kill after premeditation and deliberation, although prompted and, to a large extent, controlled by passion at the time. State v. Bonney, 329 N.C. 61 , 405 S.E.2d 145, 1991 N.C. LEXIS 420 (1991).

“Deliberation” means that the intent to kill was formed while the defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation. In the context of determining the existence of deliberation, however, the term “cool state of blood” does not mean “an absence of passion and emotion”. State v. Vause, 328 N.C. 231 , 400 S.E.2d 57, 1991 N.C. LEXIS 85 (1991).

Requirement of a cool state of blood does not mean that the defendant must be calm or tranquil. Premeditation and deliberation may be present even though the defendant is angry at the time of the killing, if he acts in the furtherance of a fixed design to kill. State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675 , cert. denied, 284 N.C. 256 , 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Defendant’s Emotion Must Not Have Disturbed His Faculties or Reason. —

The term “cool state of blood” does not mean that the defendant must be calm or tranquil or display the absence of emotion; rather, the defendant’s anger or emotion must not have been such as to disturb the defendant’s faculties and reason. State v. Tysor, 307 N.C. 679 , 300 S.E.2d 366, 1983 N.C. LEXIS 1113 (1983).

The phrase “cool state of blood” means that the defendant’s anger or emotion must not have been such as to overcome the defendant’s reason. State v. Hamlet, 312 N.C. 162 , 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986).

Passion does not always reduce the crime of murder, since a man may deliberate, may premeditate, and may intend to kill after premeditation and deliberation, although prompted and to a large extent controlled by passion at the time; if the design to kill was formed with deliberation and premeditation, it is immaterial that defendant was in a passion or excited when the design was carried into effect. State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

An unlawful killing is deliberate and premeditated if done pursuant to a fixed design to kill, notwithstanding that defendant was angry or in an emotional state at the time, unless such anger or emotion was such as to disturb the faculties and reason. State v. Fullwood, 323 N.C. 371 , 373 S.E.2d 518 (1988) sentence vacated and remanded for further consideration at 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602 (1990) in light of State v. Spaulding, 288 N.C. 397 , 219 S.E.2d 178, 1975 N.C. LEXIS 1007 (1975).

Killing committed during the course of a quarrel or scuffle may constitute first-degree murder provided defendant formed the intent to kill in a cool state of blood before the quarrel or scuffle began and the killing during the quarrel was the product of this earlier formed intent. State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

The fact that there was a quarrel does not preclude the possibility that the defendant formed the intent to kill with premeditation and deliberation. State v. Russell Council Judge, 308 N.C. 658 , 303 S.E.2d 817, 1983 N.C. LEXIS 1303 (1983).

No particular period of time is necessary to constitute premeditation and deliberation for a conviction of murder in the first degree. If the purpose to kill at all events has been deliberately formed, the interval which elapses before its execution is immaterial. State v. Coffey, 174 N.C. 814 , 94 S.E. 416, 1917 N.C. LEXIS 218 (1917); State v. Holdsclaw, 180 N.C. 731 , 105 S.E. 181, 1920 N.C. LEXIS 193 (1920).

Weighing the purpose to kill long enough to form a fixed design, and the putting of such design into execution at a future period, no matter how long deferred, constitutes premeditation and deliberation sufficient to sustain a conviction of murder in the first degree. State v. Dowden, 118 N.C. 1145 , 24 S.E. 722, 1896 N.C. LEXIS 186 (1896).

Where one forms a purpose to take the life of another and weighs this purpose in his mind with deliberation and premeditation for some period of time, however short, it is immaterial that the defendant was in a passion or excited when the design was carried into effect. State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

The fact that there was a quarrel does not preclude the possibility that the defendant formed the intent to kill with premeditation and deliberation. State v. Russell Council Judge, 308 N.C. 658 , 303 S.E.2d 817, 1983 N.C. LEXIS 1303 (1983).

Where one forms a purpose to take the life of another and weighs this purpose in his mind long enough to form a fixed design or determination to kill at a subsequent time, no matter how soon or how late, and pursuant thereto kills, this would be a killing with premeditation and deliberation and would be murder in the first degree. State v. Bock, 288 N.C. 145 , 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976).

Premeditation means thought over beforehand for some length of time, however short, but no particular time is required for the mental process of premeditation. State v. Robbins, 275 N.C. 537 , 169 S.E.2d 858, 1969 N.C. LEXIS 436 (1969); State v. Myers, 299 N.C. 671 , 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986); State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986).

Deliberation and premeditation need not be of any perceptible length of time. State v. Bynum, 175 N.C. 777 , 95 S.E. 101, 1918 N.C. LEXIS 154 (1918); State v. Burney, 215 N.C. 598 , 3 S.E.2d 24, 1939 N.C. LEXIS 323 (1939); State v. Hammonds, 216 N.C. 235 , 4 S.E.2d 439, 1939 N.C. LEXIS 131 (1939).

No fixed length of time is required for the mental processes of premeditation and deliberation constituting first-degree murder. State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981).

The killing of a human being after the fixed purpose to do so has been formed, for however short a time, is sufficient for the conviction of murder in the first degree. State v. Walker, 173 N.C. 780 , 92 S.E. 327, 1917 N.C. LEXIS 415 (1917).

It Is Sufficient if Premeditation and Deliberation Occur Prior to the Killing. —

No fixed length of time is required for the mental processes of premeditation and deliberation constituting an element of the offense of murder in the first degree, and it is sufficient if these processes occur prior to, and not simultaneously with, the killing. State v. Walters, 275 N.C. 615 , 170 S.E.2d 484, 1969 N.C. LEXIS 477 (1969); State v. Perry, 276 N.C. 339 , 172 S.E.2d 541, 1970 N.C. LEXIS 688 (1970).

Premeditation is thought beforehand for some length of time, however short. No particular length of time is required; it is sufficient if the process of premeditation occurred at any point prior to the killing. State v. Myers, 309 N.C. 78 , 305 S.E.2d 506, 1983 N.C. LEXIS 1307 (1983); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986).

Time for Premeditation Varies with Circumstances. —

The true test for premeditation is not the duration of time as much as it is the extent of the reflection and the time for premeditation would naturally vary with different individuals and under differing circumstances. State v. Buchanan, 287 N.C. 408 , 215 S.E.2d 80, 1975 N.C. LEXIS 1127 (1975), overruled in part, State v. Leach, 340 N.C. 236 , 456 S.E.2d 785 (1995).

Proof of Premeditation and Deliberation Is Proof of Intent to Kill. —

Since a specific intent to kill is a necessary constituent of the elements of premeditation and deliberation, proof of premeditation and deliberation is also proof of intent to kill. State v. Lowery, 309 N.C. 763 , 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (1983); State v. Quesinberry, 319 N.C. 228 , 354 S.E.2d 446, 1987 N.C. LEXIS 1929 (1987) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated and remanded for new capital sentencing proceeding, 328 N.C. 288 , 401 S.E.2d 632 (1991).

Premeditation and Deliberation Must Usually Be Proved by Circumstantial Evidence. —

Premeditation and deliberation are not ordinarily susceptible of proof by direct evidence and therefore must usually be proved by circumstantial evidence. State v. Watson, 222 N.C. 672 , 24 S.E.2d 540, 1943 N.C. LEXIS 401 (1943); State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Walters, 275 N.C. 615 , 170 S.E.2d 484, 1969 N.C. LEXIS 477 (1969); State v. Perry, 276 N.C. 339 , 172 S.E.2d 541, 1970 N.C. LEXIS 688 (1970); State v. Sanders, 276 N.C. 598 , 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972); State v. Van Landingham, 283 N.C. 589 , 197 S.E.2d 539, 1973 N.C. LEXIS 1025 (1973); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675 , cert. denied, 284 N.C. 256 , 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973); State v. DeGregory, 285 N.C. 122 , 203 S.E.2d 794, 1974 N.C. LEXIS 927 (1974); State v. Britt, 285 N.C. 256 , 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Sparks, 285 N.C. 631 , 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976); State v. McLaughlin, 286 N.C. 597 , 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976); State v. Bock, 288 N.C. 145 , 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976); State v. Shepherd, 288 N.C. 346 , 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975); State v. Mitchell, 288 N.C. 360 , 218 S.E.2d 332, 1975 N.C. LEXIS 984 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4211 (1976); State v. Griffin, 288 N.C. 437 , 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976); State v. Patterson, 288 N.C. 553 , 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976); State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. Strickland, 290 N.C. 169 , 225 S.E.2d 531, 1976 N.C. LEXIS 1049 (1976); State v. Smith, 290 N.C. 148 , 226 S.E.2d 10, 1976 N.C. LEXIS 1048 , cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105 , 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320 , 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978); State v. Barbour, 295 N.C. 66 , 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Marshall, 304 N.C. 167 , 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Misenheimer, 304 N.C. 108 , 282 S.E.2d 791, 1981 N.C. LEXIS 1334 (1981), overruled in part, State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982); State v. Calloway, 305 N.C. 747 , 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Hamlet, 312 N.C. 162 , 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Quesinberry, 319 N.C. 228 , 354 S.E.2d 446, 1987 N.C. LEXIS 1929 (1987) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, 328 N.C. 288 , 401 S.E.2d 632 (1991).

Premeditation and deliberation usually are not proved by direct evidence but by actions and circumstances surrounding the killing. State v. Truesdale, 340 N.C. 229 , 456 S.E.2d 299, 1995 N.C. LEXIS 237 (1995).

Premeditation and deliberation are processes of the mind and are not subject to proof by direct evidence but must be proved, if at all, by circumstantial evidence. State v. Vause, 328 N.C. 231 , 400 S.E.2d 57, 1991 N.C. LEXIS 85 (1991).

Since They Involve Processes of the Mind. —

Since premeditation and deliberation refer to processes of the mind, they must almost always be proved, if at all, by circumstantial evidence. State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978); State v. Corn, 303 N.C. 293 , 278 S.E.2d 221, 1981 N.C. LEXIS 1105 (1981); State v. Huffstetler, 312 N.C. 92 , 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986); State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986).

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. State v. Jackson, 317 N.C. 1 , 343 S.E.2d 814, 1986 N.C. LEXIS 2425 (1986), vacated, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133, 1987 U.S. LEXIS 601 (1987), overruled in part, State v. Abbott, 320 N.C. 475 , 358 S.E.2d 365, 1987 N.C. LEXIS 2296 (1987); 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971).

Prosecutor’s Statements That Jury Could Infer Premeditation from Circumstances Held Permissible. —

Where defendant was convicted of murdering victim by strangulation, prosecutor’s statements did not impermissibly eliminate the State’s burden to prove the elements of premeditation and deliberation; because the prosecutor was arguing that the jury could infer premeditation and deliberation from the circumstances and manner in which defendant killed the victim, the argument was not an incorrect statement of law. State v. Richardson, 328 N.C. 505 , 402 S.E.2d 401, 1991 N.C. LEXIS 261 (1991).

Comments by Prosecutor. —

Defendant’s first degree murder conviction for stabbing his wife to death was affirmed because the prosecutor’s statements as to the evidence were not grossly improper and the trial court’s failure to intervene ex mero motu was not error. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Circumstances to Be Considered in Determining Premeditation and Deliberation. —

Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Hamlet, 312 N.C. 162 , 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Huffstetler, 312 N.C. 92 , 322 S.E.2d 110, 1984 N.C. LEXIS 1799 (1984), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169, 1985 U.S. LEXIS 282 (1985); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Jackson, 317 N.C. 1 , 343 S.E.2d 814, 1986 N.C. LEXIS 2425 (1986), vacated, 479 U.S. 1077, 107 S. Ct. 1271, 94 L. Ed. 2d 133, 1987 U.S. LEXIS 601 (1987), overruled in part, State v. Abbott, 320 N.C. 475 , 358 S.E.2d 365, 1987 N.C. LEXIS 2296 (1987); State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986); State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986); State v. Lloyd, 89 N.C. App. 630, 366 S.E.2d 912, 1988 N.C. App. LEXIS 362 (1988).

For additional cases setting out some or all of the above circumstances as factors to be considered in determining whether a killing was with premeditation and deliberation, see State v. Hawkins, 214 N.C. 326 , 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402 , 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271 , 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Walters, 275 N.C. 615 , 170 S.E.2d 484, 1969 N.C. LEXIS 477 (1969); State v. Hamby, 276 N.C. 674 , 174 S.E.2d 385, 1970 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Duboise, 279 N.C. 73 , 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971); State v. Fountain, 282 N.C. 58 , 191 S.E.2d 674, 1972 N.C. LEXIS 886 (1972); State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972); State v. Van Landingham, 283 N.C. 589 , 197 S.E.2d 539, 1973 N.C. LEXIS 1025 (1973); State v. DeGregory, 285 N.C. 122 , 203 S.E.2d 794, 1974 N.C. LEXIS 927 (1974); State v. Britt, 285 N.C. 256 , 204 S.E.2d 817, 1974 N.C. LEXIS 968 (1974); State v. Bock, 288 N.C. 145 , 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976); State v. Shepherd, 288 N.C. 346 , 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975); State v. Mitchell, 288 N.C. 360 , 218 S.E.2d 332, 1975 N.C. LEXIS 984 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4211 (1976); State v. Griffin, 288 N.C. 437 , 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976); State v. Spaulding, 288 N.C. 397 , 219 S.E.2d 178, 1975 N.C. LEXIS 1007 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4213 (1976); State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. Stewart, 292 N.C. 219 , 232 S.E.2d 443, 1977 N.C. LEXIS 1055 (1977); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Thomas, 294 N.C. 105 , 240 S.E.2d 426, 1978 N.C. LEXIS 1189 (1978); State v. Hill, 294 N.C. 320 , 240 S.E.2d 794, 1978 N.C. LEXIS 1239 (1978); State v. Barbour, 295 N.C. 66 , 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978); State v. Myers, 299 N.C. 671 , 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980); State v. Corn, 303 N.C. 293 , 278 S.E.2d 221, 1981 N.C. LEXIS 1105 (1981); State v. Calloway, 305 N.C. 747 , 291 S.E.2d 622, 1982 N.C. LEXIS 1377 (1982); State v. Hamlet, 312 N.C. 162 , 321 S.E.2d 837, 1984 N.C. LEXIS 1801 (1984); State v. Saunders, 317 N.C. 308 , 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986); State v. Harris, 323 N.C. 112 , 371 S.E.2d 689, 1988 N.C. LEXIS 538 (1988), writ denied, 447 S.E.2d 406, 1994 N.C. LEXIS 393 (N.C. 1994).

Among the circumstances that may be considered in determining whether a killing was with premeditation and deliberation are (1) a lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) the dealing of lethal blows after the deceased has been felled and rendered helpless, (4) evidence that the killing was done in a brutal manner, and (5) the nature and number of the victim’s wounds. State v. Quesinberry, 319 N.C. 228 , 354 S.E.2d 446, 1987 N.C. LEXIS 1929 (1987) (in light of) McKoy v. North Carolina, 1990 U.S. LEXIS 1179, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), death sentence vacated, remanded for new capital sentencing proceeding, State v. Quesinberry, 328 N.C. 288 , 401 S.E.2d 632 (1991); State v. Holshouser, 15 N.C. App. 469, 190 S.E.2d 420, 1972 N.C. App. LEXIS 1943 (1972).

Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Small, 328 N.C. 175 , 400 S.E.2d 413, 1991 N.C. LEXIS 87 (1991).

Among other circumstances from which premeditation and deliberation may be inferred are (1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulty between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim’s wounds. State v. Vause, 328 N.C. 231 , 400 S.E.2d 57, 1991 N.C. LEXIS 85 (1991).

Same — Brutality. —

Evidence tending to show that defendant stabbed his victim no less than thirty-nine times and that he stabbed her repeatedly with sufficient force to bend the first knife he used before he picked up a second knife to complete the murderous attack permitted a reasonable finding that the killing was especially brutal and the defendant struck many of the deadly blows after the victim had been felled and rendered helpless. Such evidence, standing alone, was substantial evidence tending to show premeditation and deliberation. State v. Vause, 328 N.C. 231 , 400 S.E.2d 57, 1991 N.C. LEXIS 85 (1991).

Same — Previous Hostile Feelings and Prior Assaults. —

Previously existing hostile feelings between defendant and deceased, a prior assault upon the deceased by defendant, the use of grossly excessive force and killing in an unusually brutal way have all been held to be circumstances tending to show premeditation and deliberation. State v. Patterson, 288 N.C. 553 , 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976).

In a prosecution for murder in the first degree, malice on the part of defendant could be established by inference from the use of a deadly weapon and by surrounding circumstances which included two earlier assaults and accusations concerning deceased’s romantic relationship with defendant’s wife. State v. Alston, 44 N.C. App. 72, 259 S.E.2d 767, 1979 N.C. App. LEXIS 3165 (1979).

Same — Nature and Number of Wounds. —

The nature and number of the victims’ wounds is one circumstance from which an inference of premeditation and deliberation can be drawn. State v. Brown, 306 N.C. 151 , 293 S.E.2d 569, 1982 N.C. LEXIS 1447 , cert. denied, 459 U.S. 1080, 103 S. Ct. 503, 74 L. Ed. 2d 642 (1982); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986); State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986).

In determining whether a defendant acted after premeditation and deliberation, the nature of wounds to a victim is a circumstance to be considered. State v. Bearthes, 329 N.C. 149 , 405 S.E.2d 170, 1991 N.C. LEXIS 404 (1991).

Sufficient evidence of premeditation supported defendant’s conviction of first-degree murder under G.S. 14-17 , where defendant stabbed the victim multiple times in a bar after the victim called defendant names and punched defendant; the evidence of premeditation, which taken together was adequate for a jury to convict, included that defendant slashed the victim multiple times and that defendant left the scene. State v. Dennison, 171 N.C. App. 504, 615 S.E.2d 404, 2005 N.C. App. LEXIS 1271 (2005).

Same — Unseemly Conduct Toward and Concealment of Body. —

Any unseemly conduct toward the corpse of the person slain, or any indignity offered it by the slayer, and also concealment of the body, are evidence of express malice, and of premeditation and deliberation in the slaying, depending, of course, upon the particular circumstances of the case. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Same — Vicious and Brutal Slaying. —

Premeditation and deliberation may be inferred from the vicious and brutal slaying of a human being. State v. Reams, 277 N.C. 391 , 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971).

The ingredients of premeditation and deliberation necessary in first-degree murder may be inferred from the vicious and brutal circumstances of the homicide indicating a complete lack of provocation and a viciousness which demonstrates that death was the actor’s objective. State v. DeGregory, 285 N.C. 122 , 203 S.E.2d 794, 1974 N.C. LEXIS 927 (1974).

State Must Prove Premeditation and Deliberation in Death by Strangulation. —

Because strangulation is not among the methods of killing expressly established by this section as murder in the first degree, the State must prove premeditation and deliberation. State v. Richardson, 328 N.C. 505 , 402 S.E.2d 401, 1991 N.C. LEXIS 261 (1991).

Inference of Malice from Attack on Infant. —

Where defendant had nearly exclusive care of 30 day old child on the day in question, and testimony that fatal blows received by the victim likely occurred very shortly, perhaps a minute, before death, it was proper to instruct the jury that malice could be inferred from the attack of human hands alone. State v. Perdue, 320 N.C. 51 , 357 S.E.2d 345, 1987 N.C. LEXIS 2179 (1987).

The jury’s finding of malice required for a second-degree murder conviction was supported by the State’s evidence that defendant’s blood alcohol level was 0.113 three hours after the accident, that the collision occurred in the victim’s lane of travel, and that, at the time of the accident, charges of driving while impaired and driving while license revoked were pending against defendant. State v. Gray, 137 N.C. App. 345, 528 S.E.2d 46, 2000 N.C. App. LEXIS 324 (2000).

Where an adult has exclusive custody of a child for a period of time, and during such time the child suffers injuries which are neither self-inflicted nor accidental, the evidence is sufficient to create an inference that the adult inflicted the injuries. State v. Perdue, 320 N.C. 51 , 357 S.E.2d 345, 1987 N.C. LEXIS 2179 (1987).

No Presumption of Premeditation and Deliberation from Use of Deadly Weapon. —

Premeditation and deliberation necessary to constitute murder in the first degree are not presumed from a killing with a deadly weapon. State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Reams, 277 N.C. 391 , 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971). See also, State v. Hawkins, 214 N.C. 326 , 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Lamm, 232 N.C. 402 , 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271 , 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958).

Argument Not Grossly Improper. —

In first-degree murder trial where prosecutor stated that deliberation meant a “cold-blooded murder” and that it did not include the case where a man comes home and “finds his wife shacked up there with somebody,” such an example offered for the sake of comparison was not so grossly improper as to require the trial court to intervene ex mero motu. State v. Porter, 326 N.C. 489 , 391 S.E.2d 144, 1990 N.C. LEXIS 246 (1990).

Instruction on Deliberation and Premeditation — Held Proper. —

An instruction on deliberation that so long as the killing was the product of premeditation and deliberation it was murder in the first degree, notwithstanding that the execution thereof might have been done while the defendant was in a state of anger, passion, or emotional excitement, was a correct statement of law. State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978).

Judge’s instruction to the jury in a first-degree murder case that the jury, in determining premeditation and deliberation, may consider the “absence of provocation”, did not express a court opinion that there was no evidence of provocation in the case. State v. Fowler, 285 N.C. 90 , 203 S.E.2d 803, 1974 N.C. LEXIS 925 (1974), vacated in part, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2264 (1976).

Where evidence showed there was blood throughout the house, the victim was found against the base of the couch, and she had many slash wounds on her body, including two deep wounds capable of causing death, this evidence supported the state’s theory that defendant slashed the victim as she attempted to escape from him, chased her into the living room where she fell to the floor, and then stabbed her to death; therefore, the trial court did not err in instructing the jury that premeditation and deliberation may be proved by “the infliction of lethal blows after the victim was felled.” State v. Fullwood, 323 N.C. 371 , 373 S.E.2d 518, 1988 N.C. LEXIS 622 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1309 (1990) (in light of) State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 , 98 A.L.R.3d 285 (1978).

Preliminary Question of Sufficiency of Evidence to Be Determined by Court. —

In a first-degree murder prosecution, the trial court must determine the preliminary question whether the evidence, in its light most favorable to the State, is sufficient to permit the jury to make a legitimate inference and finding that the defendant, after premeditation and deliberation, formed a fixed purpose to kill and thereafter accomplished the purpose. State v. Walters, 275 N.C. 615 , 170 S.E.2d 484, 1969 N.C. LEXIS 477 (1969).

In order for the trial court to submit a charge of first-degree murder to the jury, there must have been substantial evidence presented from which a jury could determine that the defendant intentionally shot and killed the victim with malice, premeditation and deliberation. “Substantial evidence” is that amount of relevant evidence that a reasonable mind might accept as sufficient to support a conclusion. State v. Myers, 309 N.C. 78 , 305 S.E.2d 506, 1983 N.C. LEXIS 1307 (1983).

Attempt. —

The offense of “attempted first degree felony murder” does not exist under North Carolina law, as this charge is a logical impossibility in that it would require the defendant to intend what is by definition an unintentional result. State v. Lea, 126 N.C. App. 440, 485 S.E.2d 874, 1997 N.C. App. LEXIS 563 (1997).

Evidence Held Sufficient. —

Testimony of facts and circumstances which occurred after the commission of a homicide which tended to show a preconceived plan formed and carried out by the prisoner in detail, resulting in his actual killing of the deceased by two pistol shots, without excuse, with evidence that he thereafter stated he had done as he had intended, was competent upon the question of deliberation and premeditation, under the evidence in the case, to sustain a verdict of murder in the first degree. State v. Westmoreland, 181 N.C. 590 , 107 S.E. 438, 1921 N.C. LEXIS 156 (1921).

Defendant’s want of provocation, absence of excuse, lack of justification, and statement that he shot a person “to prove a point”, all permitted, if not compelled, a legitimate inference of premeditation and deliberation. State v. Rich, 277 N.C. 333 , 177 S.E.2d 422, 1970 N.C. LEXIS 603 (1970).

Where there was no evidence that the deceased had any weapon or at any time offered any threat to defendant, the want of provocation and absence of any excuse or justification, coupled with the other evidence, permitted a legitimate inference of premeditation and deliberation and was sufficient to be submitted to the jury on the issue of murder in the first degree. State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972).

The want of provocation, the absence of any excuse or justification for the shooting, the number of shots fired or attempted to be fired, and the fact that defendant ran immediately after the shooting, coupled with the other evidence, permitted a legitimate inference of premeditation and deliberation, and was sufficient to be submitted to the jury on the issue of murder in the first degree. State v. Sparks, 285 N.C. 631 , 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976).

State’s evidence was sufficient to be submitted to the jury on the issue of defendant’s guilt of conspiracy to commit murder, where there was evidence that defendant had discussed the murder with another and the means by which it might be accomplished, that defendant sent the coconspirator a picture of the victim for identification purposes, that defendant sent sums of money to the coconspirator, and that after an unsuccessful attempt was made upon the victim’s life, defendant had stated to a friend, who had introduced her to the coconspirator, that the coconspirator knew somebody who would “finish the job.” State v. Graham, 24 N.C. App. 591, 211 S.E.2d 805, 1975 N.C. App. LEXIS 2449 , cert. denied, 287 N.C. 262 , 214 S.E.2d 434, 1975 N.C. LEXIS 1107 (1975).

Where defendant was not harmed by the victim in any way and did not believe that he would have had any difficulty in defending himself against her, and the victim’s death was an unnecessary and senseless killing; where the 55 stab wounds constituted grossly excessive force; and where force which would have been lethal had the victim not already been dead was applied when an automobile was driven over her felled body, the evidence was sufficient to take the issue of defendant’s guilt of first-degree murder to the jury. State v. Bock, 288 N.C. 145 , 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976).

In a prosecution for first-degree murder, the evidence was sufficient to withstand a motion for nonsuit where it tended to show that deceased died as a result of a gunshot wound inflicted by a shot fired from a trailer; defendant, a short time before the shooting, had test fired a 12 gauge shotgun; 12 gauge shotgun wadding was found in a straight line between the trailer and the bodies after the shooting; a freshly-fired 12 gauge shotgun was later found in defendant’s house hidden between the quilts and mattress of the bed; and defendant was the only person in the trailer when the fatal shots were fired. State v. McCall, 289 N.C. 512 , 223 S.E.2d 303, 1976 N.C. LEXIS 1327 , vacated in part, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278, 1976 U.S. LEXIS 3242 (1976).

Evidence held sufficient to establish that victim was dead, and to allow the reasonable inference that she died by criminal agency and that the criminal agent was the defendant, despite the fact that her body was never found. State v. Head, 79 N.C. App. 1, 338 S.E.2d 908, 1986 N.C. App. LEXIS 1991 (1986).

Evidence held sufficient for the jury to determine that the defendant intentionally killed robbery victim with premeditation and deliberation. State v. Welch, 316 N.C. 578 , 342 S.E.2d 789, 1986 N.C. LEXIS 2163 (1986), writ denied, 1998 N.C. LEXIS 515 (N.C. July 29, 1998).

For additional cases in which evidence of first degree murder was held sufficient, see State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Sanders, 276 N.C. 598 , 174 S.E.2d 487, 1970 N.C. LEXIS 733 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985); State v. Brown, 315 N.C. 40 , 337 S.E.2d 808, 1985 N.C. LEXIS 1987 (1985), cert. denied, 476 U.S. 1165, 106 S. Ct. 2293, 90 L. Ed. 2d 733, 1986 U.S. LEXIS 1726 (1986); State v. Gladden, 315 N.C. 398 , 340 S.E.2d 673, 1986 N.C. LEXIS 1885 , cert. denied, 479 U.S. 871, 107 S. Ct. 241, 93 L. Ed. 2d 166, 1986 U.S. LEXIS 4138 (1986); State v. Triplett, 316 N.C. 1 , 340 S.E.2d 736, 1986 N.C. LEXIS 1901 (1986); State v. Hunt, 323 N.C. 407 , 373 S.E.2d 400, 1988 N.C. LEXIS 628 (1988), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1364 (1990), vacated, 494 U.S. 1022, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1384 (1990), reinstated, 330 N.C. 501 , 411 S.E.2d 806, 1992 N.C. LEXIS 12 (1992) (in light of) 302 N.C. 401 , 279 S.E.2d 356 (1981); State v. Ward, 286 N.C. 304 , 210 S.E.2d 407, 1974 N.C. LEXIS 12 29 (1974), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207, 1976 U.S. LEXIS 4200 (1976).

Evidence held sufficient to support a finding of premeditation and deliberation in the murder of a victim who was brutally beaten to death. State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986).

Evidence held sufficient to prove premeditation and deliberation so as to support a conviction for first degree murder caused by the gagging and resultant suffocation of the victim. State v. Prevette, 317 N.C. 148 , 345 S.E.2d 159, 1986 N.C. LEXIS 2784 (1986).

Evidence held sufficient to permit the jury to draw reasonable inferences that defendant acted with premeditation and deliberation when he shot and killed the deceased. State v. Saunders, 317 N.C. 308 , 345 S.E.2d 212, 1986 N.C. LEXIS 2780 (1986).

Evidence of defendant’s conduct and threatening statements both before and after the killing was strong evidence of premeditation and deliberation, and was sufficient to permit the jury to find premeditation and deliberation beyond a reasonable doubt. State v. Joplin, 318 N.C. 126 , 347 S.E.2d 421, 1986 N.C. LEXIS 2582 (1986).

Evidence held sufficient to support convictions of first-degree murder and conspiracy to commit murder. State v. Lowery, 318 N.C. 54 , 347 S.E.2d 729, 1986 N.C. LEXIS 2566 (1986).

Evidence held sufficient to show provocation, premeditation and deliberation on the part of defendant, who inflicted multiple stab wounds on victim. State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986).

Evidence held to constitute substantial evidence of each element of armed robbery and first-degree murder committed with premeditation and deliberation, and of defendant as the perpetrator. State v. Williams, 319 N.C. 73 , 352 S.E.2d 428, 1987 N.C. LEXIS 1825 (1987).

Where the defendant, who barricaded himself, his sister, and her two children, one of whom was only eight-months-old, in a railroad car for three days, was repeatedly offered both food and liquids for himself and the children, but refused to accept them or to release the children, even though negotiators warned the defendant that the baby would dehydrate, there was sufficient evidence from which a reasonable mind might conclude that the defendant had the requisite specific intent to kill the infant who died of dehydration. State v. Evangelista, 319 N.C. 152 , 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (1987).

A person is criminally responsible for a homicide if his act caused or directly contributed to the death of the victim. Where the testimony of the pathologist was that hammer blows to the head caused the victim’s death, and the cause of death tentatively cited by the emergency room physician, namely, myocardial infarction, was, according to the physician’s own testimony, not medically conclusive, even if the jury had perceived that testimony as contradicting the findings of the forensic pathologist, such contradictions and discrepancies were for the jury to resolve and did not warrant dismissal. State v. Quesinberry, 319 N.C. 228 , 354 S.E.2d 446, 1987 N.C. LEXIS 1929 (1987).

Evidence held sufficient to permit submission of issue of premeditation and deliberation to the jury. State v. Stocks, 319 N.C. 437 , 355 S.E.2d 492, 1987 N.C. LEXIS 2025 (1987).

Trial court did not err in denying defendant’s motion to dismiss first degree murder charge at the close of all the evidence, where physician testified that the victim died of pneumonia, but that there was a direct relationship between the gunshot wound and the pneumonia. State v. Penley, 318 N.C. 30 , 347 S.E.2d 783, 1986 N.C. LEXIS 2580 (1986).

Where victims, whose bodies were found in isolated areas of north Durham County, had been shot multiple times at close range, and both had close or contact wounds to the back, neck, face, and head behind the left ear, and there was no evidence of any provocation by either victim, the brutal method of these killings provided substantial evidence that the killer premeditated and deliberated. State v. Robbins, 319 N.C. 465 , 356 S.E.2d 279, 1987 N.C. LEXIS 2085 , cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226, 1987 U.S. LEXIS 4302 (1987).

Evidence held sufficient to support a finding of premeditation and deliberation, as well as malice, by defendant in death of her 30 day old infant. State v. Perdue, 320 N.C. 51 , 357 S.E.2d 345, 1987 N.C. LEXIS 2179 (1987).

Evidence as to premeditation and deliberation held sufficient, where such evidence indicated that three victims in two different rooms suffered multiple wounds which were inflicted from a .22-caliber semi-automatic rifle. Defendant’s contention that the ability to fire so rapidly negated the inference of premeditation based solely upon the number of wounds, and did not support the inference that the victims had already been felled before the lethal wounds were inflicted, was without merit. State v. Austin, 320 N.C. 276 , 357 S.E.2d 641, 1987 N.C. LEXIS 2168 , cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224, 1987 U.S. LEXIS 4370 (1987).

There was sufficient evidence from which the jury could properly have inferred premeditation and deliberation, where a pathologist testified that the killing was accomplished by a person stabbing the victim through the neck, partially removing the knife, and then plunging it home again. State v. Zuniga, 320 N.C. 233 , 357 S.E.2d 898, 1987 N.C. LEXIS 2176 , cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).

Evidence held sufficient to support defendant’s conviction for murder in the first degree based upon premeditation and deliberation. State v. Rasor, 319 N.C. 577 , 356 S.E.2d 328, 1987 N.C. LEXIS 2091 (1987); State v. Hager, 320 N.C. 77 , 357 S.E.2d 615, 1987 N.C. LEXIS 2170 (1987).

Evidence that defendant and deceased were the only persons in the home, that deceased was shot in the back from a distance of approximately two feet or point blank through some sheets and that the gun had to be cocked before it would fire, requiring 13 pounds of pressure, was sufficient for the jury to find defendant guilty of first degree murder. State v. Childress, 321 N.C. 226 , 362 S.E.2d 263, 1987 N.C. LEXIS 2556 (1987).

Evidence held sufficient to convict defendant of first-degree murder. State v. Nichols, 321 N.C. 616 , 365 S.E.2d 561, 1988 N.C. LEXIS 224 (1988).

Evidence held sufficient to show that defendant acted with premeditation and deliberation when he shot a state trooper. State v. Bray, 321 N.C. 663 , 365 S.E.2d 571, 1988 N.C. LEXIS 225 (1988).

Evidence held sufficient to convict defendant of first-degree murder on theories of both premeditation and deliberation and felony-murder. State v. James, 321 N.C. 676 , 365 S.E.2d 579, 1988 N.C. LEXIS 226 (1988).

The cumulative effect of actions and statements by defendant was more than sufficient evidence of a deliberate and premeditated killing so as to support a judgment of first degree murder. State v. Battle, 322 N.C. 69 , 366 S.E.2d 454, 1988 N.C. LEXIS 126 , cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

Evidence held sufficient to show that defendant choked victim to death with premeditation and deliberation. State v. Wilson, 322 N.C. 117 , 367 S.E.2d 589, 1988 N.C. LEXIS 297 (1988).

Where the evidence tended to show that defendant calmly volunteered his services as an assassin to his friend shortly after that friend’s dispute with the victim, defendant then worked out the details of the crime with his friend’s help; the two planned a ruse to gain access to the victim and discussed the need for a third party’s assistance, and defendant then carried out the plan, announcing his deadly intention to the victim before shooting him with a .22-caliber pistol, defendant’s conduct and declarations, coupled with the lack of legal provocation on the part of the victim, raised inferences of malice, premeditation, and deliberation sufficient to survive a motion to dismiss. State v. Cummings, 323 N.C. 181 , 372 S.E.2d 541, 1988 N.C. LEXIS 605 (1988), vacated, 494 U.S. 1021, 110 S. Ct. 1464, 108 L. Ed. 2d 602, 1990 U.S. LEXIS 1441 (1990) (in light of) 292 N.C. 643 , 235 S.E.2d 63 (1977).

Although doctors testified that in their opinion the defendant did not know right from wrong in regard to the acts at issue in defendant’s trial for first-degree murder, a police officer testified the defendant had a “very normal” demeanor and that she appeared to be oriented to time and was responsive to questions; the burden was on the defendant to prove insanity, the jury did not have to believe the expert witnesses, and the evidence supported the guilty verdicts; therefore, it was not error to refuse to set them aside. State v. Shytle, 323 N.C. 684 , 374 S.E.2d 573, 1989 N.C. LEXIS 8 (1989).

Where circumstantial evidence allowed a reasonable inference that defendant targeted a vulnerable victim, felled her with blows, assaulted her sexually, and manually strangled her until she died, the trial court did not err in denying defendant’s motion to dismiss charge of first-degree murder against defendant. State v. Davis, 325 N.C. 607 , 386 S.E.2d 418, 1989 N.C. LEXIS 596 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2900 (1990).

Evidence that defendant entered victim’s yard, placed a bucket under his window, stood on the bucket, aimed a .22 rifle through the window at victim, and fired the rifle at victim, and that subsequently he did not try to aid victim but covered him so that he could not be seen and left him to die, was substantial evidence from which the jury could find beyond a reasonable doubt that defendant intended to kill victim and that he did so with premeditation and deliberation, despite evidence of statements made by defendant before the shooting that they might have to shoot victim in the shoulder to keep him “under control.” State v. Freeman, 326 N.C. 40 , 387 S.E.2d 158, 1990 N.C. LEXIS 1 (1990).

Evidence tending to show that the defendant had control of weapon before she discharged it, killing husband; that the victim feared the defendant due to her prior actions toward him; and that the defendant gave inconsistent versions of “accident” which were inconsistent with the physical evidence; along with evidence of motive, and evidence that defendant’s first husband had died in a manner strikingly similar to that in which her second husband died, was sufficient to support a finding that the defendant intentionally killed husband with malice after premeditation and deliberation. State v. Stager, 329 N.C. 278 , 406 S.E.2d 876, 1991 N.C. LEXIS 522 (1991).

Evidence tending to show that defendant had become romantically involved with victim’s girlfriend and that he shot victim despite absence of any immediate threat to his person justified submission of issue of first degree murder to jury. State v. Williams, 100 N.C. App. 567, 397 S.E.2d 364, 1990 N.C. App. LEXIS 1077 (1990), cert. dismissed, 328 N.C. 576 , 403 S.E.2d 520, 1991 N.C. LEXIS 274 (1991).

There was sufficient evidence of murder in the first degree on the basis of premeditation and deliberation where the State’s evidence tended to show that the victim was shot while she was lying face down on the floor; the wound was a “hard contact” wound; the killer placed the gun directly against the victim’s skull before pulling the trigger; there was no evidence of provocation by the victim; the store was orderly, and the victim was a former bank employee who had been trained to submit without resistance to an armed robber’s demands. The evidence presented, viewed in the light most favorable to the State, supports the inference that the victim did not provoke defendant and that defendant killed the victim after she had been felled and rendered helpless. State v. Small, 328 N.C. 175 , 400 S.E.2d 413, 1991 N.C. LEXIS 87 (1991).

Evidence which tended to show that murder victim, a store clerk, was shot while lying face down on the floor, his legs wrapped with an electric cord, and died of a gunshot wound to the middle of his back, a contact wound which went directly to and through his heart, was sufficient to submit a charge of first-degree murder to the jury on a theory of malice, premeditation and deliberation. State v. McPhail, 329 N.C. 636 , 406 S.E.2d 591, 1991 N.C. LEXIS 520 (1991).

Evidence held to support defendant’s conviction of first-degree murder of defendant’s 16-year-old mentally handicapped daughter and to support the conclusion that defendant’s action of leaving car on train track was proximate cause of daughter’s death, which occurred when car was struck by train. State v. Brewer, 328 N.C. 515 , 402 S.E.2d 380, 1991 N.C. LEXIS 260 (1991).

Evidence held sufficient to support trial judge’s instructions on first-degree murder with premeditation and deliberation in case involving homicide of six-year-old forced to drink large amounts of water. State v. Crawford, 329 N.C. 466 , 406 S.E.2d 579, 1991 N.C. LEXIS 531 (1991).

Even assuming that defendant had not formed an intent to kill at the time the assault began, no rational juror could have reasonably found that defendant, having beaten the victim into submission and having inserted his hand past his wrist into the victim’s vagina at least twice, pulling out the victim’s organs, did not act with premeditation and deliberation when he later dragged her 120 feet into the woods leaving her helpless and bleeding to death; the evidence showing that the offense was committed over such a long period of time, with so many conscious decisions by the defendant, clearly supported the trial court’s finding that the defendant possessed the requisite premeditation and deliberation. State v. Thomas, 332 N.C. 544 , 423 S.E.2d 75, 1992 N.C. LEXIS 588 (1992).

The evidence was substantial as to each element of the offense of first-degree murder and the defendant being the perpetrator. State v. Peterson, 337 N.C. 384 , 446 S.E.2d 43, 1994 N.C. LEXIS 403 (1994), writ denied, 351 N.C. 479 , 543 S.E.2d 505, 2000 N.C. LEXIS 288 (2000).

The fact that defendant went to great lengths to conceal murder, including disposing of the body and destroying or hiding evidence such as the pipe, the sheets, and the mattress and his uncaring attitude about the victim, evidenced by killing her and then dumping her nude body by the roadside, could all be considered by the jury in finding premeditation and deliberation. State v. Weathers, 339 N.C. 441 , 451 S.E.2d 266, 1994 N.C. LEXIS 734 (1994).

Evidence was sufficient to support a conclusion that defendant acted with malice, premeditation and deliberation where defendant and the victim fought earlier in the evening, defendant followed the victim to a convenience store parking lot, defendant shot the victim after the victim had turned his back to defendant and was walking away, and defendant knew the victim was unarmed. State v. Ross, 338 N.C. 280 , 449 S.E.2d 556, 1994 N.C. LEXIS 652 (1994).

Evidence held sufficient to prove that defendant committed premeditated and deliberate murder. State v. Leach, 340 N.C. 236 , 456 S.E.2d 785, 1995 N.C. LEXIS 243 (1995).

The time interval between defendant’s departure from the confrontation and the shooting was clearly sufficient to allow him to think out the act and form a fixed design to kill in a cool state of blood, and his statements in the wake of the shooting indicated that he in fact did so; the evidence was sufficient to permit a reasonable inference that defendant premeditated and deliberated the killing. State v. Holt, 342 N.C. 395 , 464 S.E.2d 672, 1995 N.C. LEXIS 687 (1995).

Where there was substantial evidence to support a finding that the offense charged had been committed and that the defendant committed it, the case was for the jury and the motion to dismiss was properly denied. State v. Workman, 344 N.C. 482 , 476 S.E.2d 301, 1996 N.C. LEXIS 507 (1996).

Substantial evidence, including the contents of victim’s stomach, the motive, the weapon, the fact that defendant looked into who owned victim’s car, which had been parked outside his former girl friend’s house, the fact that he had his car painted and cleaned after victim disappeared, mtDNA sequencing, and other circumstances, supported the conviction of defendant under this section. State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231, 1999 N.C. App. LEXIS 856 (1999), cert. dismissed, 352 N.C. 669 , 535 S.E.2d 33, 2000 N.C. LEXIS 747 (2000).

The evidence was sufficient to point to defendant as the killer and withstand his motions to dismiss, where it showed that victim was stabbed 11 times with knives from the kitchen of the residence; there were no signs of forced entry, notwithstanding defendant’s statement to the contrary about hearing footsteps in the residence; money and other valuables were found on the kitchen table; victim wanted defendant to leave the residence and no longer wanted to be married; and defendant on numerous occasions inquired as to the particulars of how an inmate murdered his girlfriend. State v. Aldridge, 139 N.C. App. 706, 534 S.E.2d 629, 2000 N.C. App. LEXIS 1032 (2000).

Evidence that defendant armed himself with a loaded assault rifle as part of plan to rob the victim, and that there was only a very brief time between the time defendant entered the apartment and the time the victim was shot, was sufficient to allow the jury to conclude that defendant intentionally killed the victim with premeditation and deliberation and support conviction for first-degree murder. State v. Allen, 162 N.C. App. 587, 592 S.E.2d 31, 2004 N.C. App. LEXIS 246 (2004).

Evidence that two defendants told another person to stop a car that was transporting them, that the driver saw both of them walk towards a car he had just passed, that the driver heard gunshots, that both defendants had a handgun when they returned to the car, and that casings found near a person who was shot to death were linked to the handguns defendants had in their possession, was sufficient to sustain defendants’ conviction for first-degree murder; the appellate court held that the trial court did not commit error when it refused to give the jury an instruction on second-degree murder as a lesser included offense and that the State properly charged defendants using a short form indictment. State v. Pope, 163 N.C. App. 486, 593 S.E.2d 813, 2004 N.C. App. LEXIS 423 (2004).

Evidence was sufficient to support the jury’s verdict convicting defendant of first-degree murder, and thus the trial court properly denied defendant’s motions to dismiss and to set aside the verdict; (1) defendant admitted that he shot the victim in the head and told the police that the victim had been blackmailing him over a tape of defendant’s wife, (2) victim’s body was found buried on defendant’s property, and (3) defendant denied any knowledge of what happened to the victim until after the body was discovered on his property and then changed his story to reveal the confrontation between the victim and him. State v. Gladden, 168 N.C. App. 548, 608 S.E.2d 93, 2005 N.C. App. LEXIS 351 (2005).

Evidence was sufficient to support an attempted first-degree murder conviction because the evidence established that the prisoner broke into the victims’ home, brandished a gun, threatened to kill both victims, and then shot both victims. Fredrick v. Beck, 2005 U.S. Dist. LEXIS 28000 (W.D.N.C. Oct. 28, 2005).

State introduced ample and sufficient evidence to allow the jury to make reasonable inferences of defendant’s guilt of first-degree murder by aiding and abetting, including testimony and exhibits to prove defendant’s affair, ongoing problems in defendant’s marriage, defendant’s financial status and the insurance payout, and defendant’s suspicious behavior and flight following the murder. State v. Theer, 181 N.C. App. 349, 639 S.E.2d 655, 2007 N.C. App. LEXIS 151 (2007), cert. denied, 553 U.S. 1055, 128 S. Ct. 2473, 171 L. Ed. 2d 769, 2008 U.S. LEXIS 4216 (2008).

Evidence supported defendant’s conviction for first-degree murder as there was sufficient evidence to support the elements of premeditation and deliberation in the form of defendant’s statements and conduct before and after the killing, ill will between the parties, and the nature and number of the victim’s wounds. The victim’s back was turned when defendant fired defendant’s weapon, giving defendant adequate time to weigh the consequences of the act. State v. Bass, 190 N.C. App. 339, 660 S.E.2d 123, 2008 N.C. App. LEXIS 864 , cert. denied, 362 N.C. 683 , 670 S.E.2d 566, 2008 N.C. LEXIS 1054 (2008).

Evidence was sufficient to show that defendant was a person providing care or supervision to the child victim as required by G.S. 14-318.4(a), such that defendant could have been guilty of the underlying felony of child abuse to convict him of first-degree murder committed in the perpetration of a felony, where defendant lived in the child’s home for months, at least during the weekdays, defendant’s encounters with the child were daily and, although defendant may not have had plenary parental authority, evidence that he, inter alia, helped with potty training, cooked meals, and supervised the child while playing outside was sufficient for a jury to find the child depended on defendant for parental-type care. State v. Chambers, 278 N.C. App. 474, 861 S.E.2d 367, 2021- NCCOA-348, 2021 N.C. App. LEXIS 378 (2021).

Evidence was sufficient to show that defendant was a person providing care or supervision to the child victim as required by N.C. Gen. Stat. § 14-318.4(a), such that defendant could have been guilty of the underlying felony of child abuse to convict him of first-degree murder committed in the perpetration of a felony, where defendant lived in the child’s home for months, at least during the weekdays, defendant’s encounters with the child were daily and, although defendant may not have had plenary parental authority, evidence that he, inter alia, helped with potty training, cooked meals, and supervised the child while playing outside was sufficient for a jury to find the child depended on defendant for parental-type care. State v. Chambers, 278 N.C. App. 474, 861 S.E.2d 367, 2021- NCCOA-348, 2021 N.C. App. LEXIS 378 (2021).

Motion to dismiss a first-degree murder charge was properly denied because substantial evidence showed defendant killed the victim with malice, premeditation, and deliberation. Defendant possessed the murder weapon and the same type of ammunition, there was evidence placing defendant at the scene of the crime, malice was presumed from the use of a deadly weapon, and the location of the victim’s body in a seated position with multiple gunshot wounds indicated premeditation and deliberation. State v. Gallion, 2022-NCCOA-164, 2022 N.C. App. LEXIS 178 (March 15, 2022).

The evidence was sufficient to support a finding of premeditation and deliberation where the evidence showed that after a confrontation between defendant and victim, defendant went to his trailer and got his gun, told his girlfriend that victim had beaten him and that if he beat him anymore he would shoot him and after defendant left, his girlfriend called store where the victim was and said that defendant had a gun and had said he was going to shoot victim. As victim approached a trailer, defendant backed into an adjacent driveway and motioned for victim to come over, and when victim, who was unarmed, got within three to five feet of defendant’s truck, defendant stuck his gun out of the window and shot him. Defendant did not attempt to help victim; rather, he sat in his truck and looked at him. He told an emergency medical technician that the victim would not breathe because he had taken a gun and blown his brains out and there was testimony that to fire the gun, it was necessary to load it, close it, and cock it before pulling the trigger. There was evidence that defendant reloaded the gun after shooting the victim. State v. Vaughn, 324 N.C. 301 , 377 S.E.2d 738, 1989 N.C. LEXIS 163 (1989).

Denial of defendant’s motion to dismiss was upheld after the appellate court determined that there was sufficient evidence that defendant was the perpetrator of the crime and that he acted with premeditation and deliberation; among other things, there was fiber evidence and evidence connected with defendant’s boat linking him to the crime, and evidence of an elaborate process of concealing the body to support premeditation and deliberation. State v. Dawkins, 162 N.C. App. 231, 590 S.E.2d 324, 2004 N.C. App. LEXIS 116 (2004), cert. dismissed, 368 N.C. 821 , 784 S.E.2d 477, 2016 N.C. LEXIS 360 (2016), cert. dismissed, 368 N.C. 821 , 784 S.E.2d 476, 2016 N.C. LEXIS 366 (2016).

The evidence was sufficient to permit a rational juror to find that defendant killed the officers with premeditation and deliberation where, during defendant’s struggle with officers, his intent changed from a mere attempt to flee to the killing of the officers to further his escape. State v. Harden, 344 N.C. 542 , 476 S.E.2d 658, 1996 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

Evidence Held Sufficient to Raise Inference of Premeditation and Deliberation. —

Where the evidence, taken in the light most favorable to the State, showed that no knives or other weapons were found at the scene of the crime and no drawers were open; the victim was shot three times, once in the back; prior to the day of the shooting, defendant threatened, “If I ever come here and see another man in this house, I’ll kill him”; and after the shooting, defendant told lieutenant that he had shot two people but did not at that time claim that he had done so in self-defense; this evidence raised the legitimate inference that defendant killed with premeditation and deliberation and not in self-defense, and the trial court did not err in submitting the first-degree murder charge based on premeditation and deliberation. State v. Carter, 335 N.C. 422 , 440 S.E.2d 268, 1994 N.C. LEXIS 14 (1994).

Finding of Malice, Premeditation and Deliberation Precludes Voluntary Manslaughter. —

The jury’s finding that defendant was guilty of first degree murder on the basis of malice, premeditation and deliberation rendered harmless the trial court’s failure to submit the lesser included offense of voluntary manslaughter. State v. Jarrett, 137 N.C. App. 256, 527 S.E.2d 693, 2000 N.C. App. LEXIS 318 (2000).

Evidence Did Not Show That Defendant Acted in Heat of Passion. —

Although attempted voluntary manslaughter was a lesser-included offense of attempted first-degree murder, the trial court properly refused to instruct the jury that defendant could be found guilty of attempted voluntary manslaughter because the evidence did not show that defendant acted in the heat of passion. State v. Rainey, 154 N.C. App. 282, 574 S.E.2d 25, 2002 N.C. App. LEXIS 1462 (2002).

Evidence held sufficient to support a charge of conspiracy to commit murder. State v. Larrimore, 340 N.C. 119 , 456 S.E.2d 789, 1995 N.C. LEXIS 242 (1995).

The evidence of repeated coordinated assaults and the defendant’s agreement to “go on a killing spree” clearly refuted his argument that the State did not offer sufficient evidence of one or more conspiracies to commit first-degree murder. State v. Choppy, 141 N.C. App. 32, 539 S.E.2d 44, 2000 N.C. App. LEXIS 1275 (2000).

Evidence held sufficient to convict the defendants of first degree murder as aiders and abetters. State v. Vanhoy, 343 N.C. 476 , 471 S.E.2d 404, 1996 N.C. LEXIS 336 (1996).

Evidence Held Insufficient. —

Evidence which established a brutal murder, showed that defendant had the opportunity to commit it and raised suspicion in imaginative minds, nevertheless did not suffice to sustain a conviction. State v. Jones, 280 N.C. 60 , 184 S.E.2d 862, 1971 N.C. LEXIS 1091 (1971).

Where the evidence showed that defendant wanted his wife dead, that he actively sought her death, and that he harbored great hostility toward her without more, was not enough to permit a jury to find that he killed her. While such evidence might have supported a reasonable inference that defendant was responsible for his wife’s death and that he procured someone to murder her, these facts alone would not make defendant guilty of murder. State v. Furr, 292 N.C. 711 , 235 S.E.2d 193, 1977 N.C. LEXIS 1172 , cert. denied, 434 U.S. 924, 98 S. Ct. 402, 54 L. Ed. 2d 281, 1977 U.S. LEXIS 3781 (1977).

Death from Pneumonia Resulting from Wound. —

Trial court did not err in denying defendant’s motion to dismiss first degree murder charge at the close of all the evidence, where physician testified that the victim died of pneumonia, but that there was a direct relationship between the gunshot wound and the pneumonia. State v. Penley, 318 N.C. 30 , 347 S.E.2d 783, 1986 N.C. LEXIS 2580 (1986).

Demonstrative Evidence Was Relevent to Show Premeditation. —

Where defendant, who was convicted of strangling his pregnant high school girlfriend, testified that his action was impulsive and that he tore off the “skirt” part of the apron after the strangulation, it was proper to allow a detective, using a mannequin at trial, to demonstrate how the apron was tied around the victim’s neck as the demonstration was relevant as to whether defendant acted with premeditation and deliberation and the demonstration was not excessively inflammatory. State v. Fowler, 159 N.C. App. 504, 583 S.E.2d 637, 2003 N.C. App. LEXIS 1511 (2003).

III.Murder by Means Stated in Section

Premeditation and Intent to Kill Are Not Elements of Murder by Means Stated in Section. —

Premeditation and deliberation is not an element of the crime of first-degree murder perpetrated by means of poison, lying in wait, imprisonment, starving or torture. Likewise, a specific intent to kill is not an element of first-degree murder when the homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture. State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

When a homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture, the presence or absence of premeditation, deliberation and specific intent to kill is irrelevant. State v. Evangelista, 319 N.C. 152 , 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (1987); State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Neither premeditation and deliberation nor intent to kill are elements of murder in the first degree when the homicide is perpetrated by means of torture. State v. Phillips, 328 N.C. 1 , 399 S.E.2d 293, 1991 N.C. LEXIS 13 , cert. denied, 501 U.S. 1208, 111 S. Ct. 2804, 115 L. Ed. 2d 977, 1991 U.S. LEXIS 3393 (1991).

Premeditation and deliberation are not elements of the crime of first-degree murder perpetrated by means of lying in wait, nor is a specific intent to kill. State v. Baldwin, 330 N.C. 446 , 412 S.E.2d 31, 1992 N.C. LEXIS 5 (1992).

In light of defendant’s conviction for murder based on lying in wait, the trial court erred in refusing to arrest judgment on his conviction for secret assault. The legislature did not intend to punish a defendant both for a secret assault and for a murder when the assault is the very act that underlies the conviction for first-degree murder by lying in wait. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

A murder perpetrated by means of poison is murder in the first degree. State v. Hendrick, 232 N.C. 447 , 61 S.E.2d 349, 1950 N.C. LEXIS 557 (1950).

Any murder committed by means of poison is automatically first-degree murder. State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

When a murder is committed by means of poison, premeditation and deliberation are not elements of the crime of first-degree murder and premeditation and deliberation are hence irrelevant. State v. Moore, 335 N.C. 567 , 440 S.E.2d 797, 1994 N.C. LEXIS 104 , cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174, 1994 U.S. LEXIS 6701 (1994).

A separate showing of malice is not necessary for the charges of first-degree murder by means of poison and attempted first-degree murder by poison. State v. Smith, 351 N.C. 251 , 524 S.E.2d 28, 2000 N.C. LEXIS 3 , cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100, 2000 U.S. LEXIS 5702 (2000).

Intent to Kill by Poison Need Not Be Proved. —

When the State proceeds upon a theory of first-degree murder perpetrated by means of poison, the State is not required to come forward with evidence tending to show that the defendant possessed the intent to kill the victim, and the trial judge should not instruct the jury that it is required to find such an intent as a prerequisite for returning a conviction for first-degree murder. State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

When a murder is committed by means of poison, the murder is first degree, even if all the evidence presented tends to show only an intent to make the victim ill. State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

Evidence of Other Poisonings. —

In a capital poisoning case, there was no error in admission of evidence tending to show that defendant was responsible for the poisoning deaths of four other individuals, not including the murder for which she was convicted, based upon long-established state law permitting use of “other crime” evidence when probative of a defendant’s knowledge of a relevant set of circumstances, specific intent to commit the crime, motive for the crime, or plan or design to commit the crime. Barfield v. Harris, 540 F. Supp. 451, 1982 U.S. Dist. LEXIS 12690 (E.D.N.C. 1982), aff'd, 719 F.2d 58, 1983 U.S. App. LEXIS 16325 (4th Cir. 1983).

Burden on State in Prosecution for Murder by Poison. —

In a prosecution for murder by means of poison, the burden is on the State to prove beyond a reasonable doubt that the deceased died from poison and that defendant administered the poison with criminal intent. State v. Hendrick, 232 N.C. 447 , 61 S.E.2d 349, 1950 N.C. LEXIS 557 (1950).

Evidence of Murder by Poison Held Sufficient. —

In a prosecution for first-degree murder by poison, the evidence was sufficient to withstand motions for directed verdict and for judgment of nonsuit where defendant purchased rat poison with intent to kill deceased, and pursuant to a preconceived plan to do so, defendant poured it into tea prepared specially for deceased’s consumption and deceased drank the tea and almost immediately became ill and died. State v. Hunt, 289 N.C. 403 , 222 S.E.2d 234, 1976 N.C. LEXIS 1293 , vacated in part, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Evidence held sufficient to take first-degree murder by poison case to jury. See State v. Detter, 298 N.C. 604 , 260 S.E.2d 567, 1979 N.C. LEXIS 1408 (1979).

Purposes of Secret Assault and Murder by Lying in Wait Contrasted. —

The purpose of the secret assault statute is to provide for the protection of society in cases of assault from ambush which do not result in the death of the victim, while the purpose of the murder by lying in wait statute is to provide for such protection in cases of assault from ambush which do result in the death of the victim. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

Secret Assault Underlying Conviction for Murder by Lying in Wait Not Punishable. —

To provide for additional punishment for the assault underlying a conviction for murder by lying in wait would serve little purpose other than to augment paperwork, trial time, and the potential for error in an already overburdened court system. The legislature, in enacting the secret assault and murder by lying in wait statutes, did not intend this result, and courts will, and the court accordingly arrest a judgment entered upon the secret assault conviction for a defendant convicted of murder by lying in wait. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

Murder perpetrated by lying in wait refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. The assassin need not be concealed, nor need the victim be unaware of his presence. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin’s presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Any murder committed by means of lying in wait is automatically first-degree murder. State v. Brown, 320 N.C. 179 , 358 S.E.2d 1, 1987 N.C. LEXIS 2180 , cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406, 1987 U.S. LEXIS 5019 (1987).

Murder from Ambush Is Murder by Lying in Wait. —

When this section speaks of murder perpetrated by lying in wait, it refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. An assailant who watches and waits in ambush for his victim is most certainly lying in wait. State v. Allison, 298 N.C. 135 , 257 S.E.2d 417, 1979 N.C. LEXIS 1371 (1979).

And Constitutes First-Degree Murder. —

Defendants who lay in wait and killed deceased from ambush are guilty of murder in the first degree. State v. Wiggins, 171 N.C. 813 , 89 S.E. 58, 1916 N.C. LEXIS 189 (1916). See State v. Satterfield, 207 N.C. 118 , 176 S.E. 466, 1934 N.C. LEXIS 394 (1934); State v. Mozingo, 207 N.C. 247 , 176 S.E. 582, 1934 N.C. LEXIS 431 (1934).

Assailant Need Not Be Concealed to Lie in Wait. —

It is not necessary that an assailant be actually concealed in order to lie in wait. If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin’s presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait. State v. Allison, 298 N.C. 135 , 257 S.E.2d 417, 1979 N.C. LEXIS 1371 (1979).

Evidence of Murder by Lying in Wait. —

Evidence that defendant brought a gun to a residence where he had previously seen victim; that after expressing animosity towards victim, defendant entered the residence without the gun, checking as to victim’s presence; that defendant did not reveal the gun or indicate his plan of attack to the victim in any way; that defendant then went out onto the porch, positioned himself behind a clothes dryer and waited for victim to come outside; and that when victim entered the porch area, defendant did not warn him of his presence, but instead waited until he exited the porch area before shooting him in the back, clearly supported the court’s action in submitting murder perpetrated by lying in wait to the jury. State v. Battle, 322 N.C. 69 , 366 S.E.2d 454, 1988 N.C. LEXIS 126 , cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

Where defendant, by his own admission, was sneaking around dark golf course and, with a suddenness which deprived police officer victim of all opportunity to defend himself, fired upon and killed the officer, he was guilty of first degree murder by lying in wait, and it was not necessary for the State to show that defendant had an announced purpose or intent to kill the officer when he shot him under those circumstances. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Where the State’s evidence tended to show that the defendant hid in the victim’s closet and waited for her to return to her room before jumping out of the closet and assaulting her with a hammer, leading to her death, the evidence clearly supported submission to the jury of murder by lying in wait. State v. Camacho, 337 N.C. 224 , 446 S.E.2d 8, 1994 N.C. LEXIS 414 (1994).

Period of “Waiting” May Be Momentary. —

The State need not prove that the killer stationed himself and waited at the site of the killing for some period of time before it may proceed on a theory of lying in wait. Even a moment’s deliberate pause before killing one unaware of the impending assault and consequently without opportunity to defend himself satisfies the definition of murder perpetrated by lying in wait. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Evidence of Intoxication Irrelevant. —

As a specific intent to kill is not an element of the crime of first-degree murder by lying in wait, evidence of intoxication is irrelevant as a defense. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Malice Not Element for Murder by Starving. —

Malice is not a separate element of murder by starving; thus, the trial court did not err by not making a finding or conclusion as to malice. State v. Cheeks, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270 , 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528 , 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

Starvation. —

Deprivation of life-sustaining liquids amounts to starvation under this section. State v. Evangelista, 319 N.C. 152 , 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (1987).

Murder by Starvation. —

Murder by starving requires the willful deprivation of sufficient food or hydration to sustain life. The deprivation need not be absolute and continuous for a particular time period. State v. Cheeks, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270 , 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528 , 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

There was sufficient evidence to support the trial court’s conclusion that the defendant intentionally starved his four-year-old stepson and that starvation was the proximate cause of his death, and thus defendant’s conviction of first degree murder by starvation was affirmed; defendant did not challenge the sufficiency of the evidence of the specific findings of fact, which findings were conclusive, the fact that the child was wasting away would have been obvious to defendant, the child’s primary caretaker, yet the defendant took no action. State v. Cheeks, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270 , 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528 , 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

Based upon G.S. 14-17 and case law, the court can find no support for the necessity of a separate element of a legal duty to feed for murder by starving; in this case, as a four-year old child with developmental delays, the victim depended entirely upon the defendant and the victim’s mother for all of the victim’s needs, including food and water, and both were fully aware of the victim’s dependency upon them, such that no further legal duty was necessary. State v. Cheeks, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270 , 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528 , 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

Evidence that defendant, for the purpose of punishment, forced six-year-old to drink large quantities of water, causing his death, constituted adequate evidence of torture. State v. Crawford, 329 N.C. 466 , 406 S.E.2d 579, 1991 N.C. LEXIS 531 (1991).

Murder by Torture Is Murder in First Degree. —

When a homicide is perpetrated by means of torture, premeditation and deliberation are presumed and defendant is guilty of murder in the first degree. State v. Duboise, 279 N.C. 73 , 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971).

First-degree murder by torture requires the State to prove that the accused intentionally tortured the victim and that such torture was a proximate cause of the victim’s death. State v. Pierce, 346 N.C. 471 , 488 S.E.2d 576, 1997 N.C. LEXIS 477 (1997).

Murder by Torture Shown. —

The evidence supported the submission of first-degree murder by torture where for four weeks defendant punished his 21/2 year old niece by shaking her; by beating her with fists, a belt, a metal tray, a broken antenna, and a pair of tennis shoes; by making her wear soiled pants on her head; and by smacking and slapping her. Accordingly, the trial court properly denied defendants motion to dismiss the charge of first-degree murder on the basis of torture. State v. Pierce, 346 N.C. 471 , 488 S.E.2d 576, 1997 N.C. LEXIS 477 (1997).

Murder by torture is analogous to felony murder in that malice may be implied by the very act of torturing the victim. The commission of torture implies the requisite malice, and a separate showing of malice is not necessary. State v. Crawford, 329 N.C. 466 , 406 S.E.2d 579, 1991 N.C. LEXIS 531 (1991).

Jury’s finding of course of conduct and the intentional infliction of grievous pain and cruel suffering resulting in death satisfied statutory and constitutional requirements regarding torture. State v. Crawford, 329 N.C. 466 , 406 S.E.2d 579, 1991 N.C. LEXIS 531 (1991).

IV.Murder in Perpetration of a Felony

Purpose. —

The felony murder rule was promulgated to deter even accidental killings from occurring during the commission of or attempted commission of a dangerous felony. State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

Elements. —

The elements necessary to prove felony murder are that the killing took place while the accused was perpetrating or attempting to perpetrate one of the enumerated felonies. State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

North Carolina does not recognize an offense of second-degree felony murder. State v. Hunt, 91 N.C. App. 574, 372 S.E.2d 744, 1988 N.C. App. LEXIS 895 (1988) (in light of) State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664, 1986 N.C. App. LEXIS 2060 (1986).

The offense of “attempted first degree felony murder” does not exist under North Carolina law. State v. Lea, 126 N.C. App. 440, 485 S.E.2d 874, 1997 N.C. App. LEXIS 563 (1997).

A charge of “attempted felony murder” is a logical impossibility in that it requires the defendant to intend what is by definition an unintentional result; accordingly, the offense of “attempted felony murder” does not exist in North Carolina. State v. Lea, 126 N.C. App. 440, 485 S.E.2d 874, 1997 N.C. App. LEXIS 563 (1997).

The felony-murder rule does not unconstitutionally relieve the State of the burden of proving malice, since malice is not an element of the crime. Further, no burden is placed upon a defendant to prove or disprove any of the elements of the crime. State v. Womble, 292 N.C. 455 , 233 S.E.2d 534, 1977 N.C. LEXIS 1107 (1977).

State Is Not Relieved from Proving Mens Rea. —

The felony murder rule, as set out in this section, does not establish a presumption of premeditation and deliberation are not elements of felony murder; the State is not relieved from proving criminal mens rea. State v. Thomas, 332 N.C. 544 , 423 S.E.2d 75, 1992 N.C. LEXIS 588 (1992).

Term “Felony Murder” Disapproved. —

Since “felony murder” is not a statutory term, its use in an issue submitted to the jury is ill-advised and its usage is expressly disapproved. State v. Foster, 293 N.C. 674 , 239 S.E.2d 449, 1977 N.C. LEXIS 1015 (1977).

Premeditation and deliberation are not elements of the crime of felony-murder. State v. Swift, 290 N.C. 383 , 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976); State v. Wall, 304 N.C. 609 , 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (1982).

Premeditation and Deliberation Need Not Be Proved. —

A murder committed in the perpetration or attempt to perpetrate a felony is murder in the first degree, and in such instance the State is not put to proof of premeditation and deliberation. State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Fox, 277 N.C. 1 , 175 S.E.2d 561, 1970 N.C. LEXIS 506 (1970); State v. Doss, 279 N.C. 413 , 183 S.E.2d 671, 1971 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (1972); State v. Hairston, 280 N.C. 220 , 185 S.E.2d 633, 1972 N.C. LEXIS 1223 , cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145, 1972 U.S. LEXIS 1773 (1972); State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972); State v. Jenerett, 281 N.C. 81 , 187 S.E.2d 735, 1972 N.C. LEXIS 1007 (1972); State v. Williams, 284 N.C. 67 , 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973); State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Jones, 290 N.C. 292 , 225 S.E.2d 549, 1976 N.C. LEXIS 1058 (1976); State v. Peplinski, 290 N.C. 236 , 225 S.E.2d 568, 1976 N.C. LEXIS 1053 , cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301, 1976 U.S. LEXIS 3421 (1976); Chance v. Garrison, 537 F.2d 1212, 1976 U.S. App. LEXIS 8603 (4th Cir. 1976); State v. Warren, 292 N.C. 235 , 232 S.E.2d 419, 1977 N.C. LEXIS 1057 (1977); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981); State v. Wall, 304 N.C. 609 , 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (1982).

Death Need Not Be Intended. —

A homicide is murder in the first degree if it results from the commission or attempted commission of one of the specified felonies or of any other felony inherently dangerous to life, without regard to whether the death be intended or not. State v. Streeton, 231 N.C. 301 , 56 S.E.2d 649, 1949 N.C. LEXIS 526 (1949); State v. Maynard, 247 N.C. 462 , 101 S.E.2d 340, 1958 N.C. LEXIS 562 (1958); State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972); State v. Swift, 290 N.C. 383 , 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976).

The killing of another human being, whether intentional or otherwise, while the person who kills is engaged in the perpetration of a felony, which felony is inherently or foreseeably dangerous to human life, was murder at common law. State v. Shrader, 290 N.C. 253 , 225 S.E.2d 522, 1976 N.C. LEXIS 1054 (1976).

When evidence shows the killing of a person by one who is engaged in the perpetration or the attempt to perpetrate a felony described in this section, the perpetrator may properly be charged and convicted of murder in the first degree, notwithstanding such person’s intentions or conduct. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Felony murder, by its definition, does not require intent to kill as an element that must be satisfied for a conviction. State v. Cagle, 346 N.C. 497 , 488 S.E.2d 535, 1997 N.C. LEXIS 475 (1997), cert. denied, 522 U.S. 1032, 118 S. Ct. 635, 139 L. Ed. 2d 614, 1997 U.S. LEXIS 7581 (1997), writ denied, 356 N.C. 168 , 568 S.E.2d 616, 2002 N.C. LEXIS 738 (2002).

Trial court did not err in instructing the jury both on premeditation and deliberation, and felony murder, as defendant could be convicted of felony murder even though it was the co-felon he shot and killed during the robbery of the seafood merchant; the State only had to show that the killing occurred by defendant’s hands during the perpetration of a felony, and not that the intended victim was killed. State v. Torres, 171 N.C. App. 419, 615 S.E.2d 36, 2005 N.C. App. LEXIS 1200 (2005).

Defendant was not prejudiced by the refusal to allow defendant to obviate defendant’s intent through testimony under the guise of an expert under G.S. 8C-1-702(a) and G.S. 8C-1-104(a) as: (1) defendant’s intent to kill was irrelevant to a consideration of felony murder under G.S. 14-17 ; and (2) the state’s evidence set forth defendant’s intent to commit the felony, attempted robbery with a dangerous weapon, during which the killing occurred. State v. Oakes, 209 N.C. App. 18, 703 S.E.2d 476, 2011 N.C. App. LEXIS 52 (2011).

All Conspirators in Felony Are Guilty. —

The felony-murder rule applies whenever a conspirator kills another person in the course of committing a felony. If the unlawful act agreed to be done is dangerous or homicidal in its character, or if its accomplishment necessarily or probably required the use of force and violence which may result in the taking of life unlawfully, every party in such agreement will be held criminally liable for whatever any of his co-conspirators may do in furtherance of the common design. State v. Carey, 288 N.C. 254 , 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (1976).

When a conspiracy is formed to commit a robbery or burglary, and a murder is committed by any one of the conspirators in the attempted perpetration of the crime, each and all of the conspirators are guilty of murder in the first degree. State v. Bell, 205 N.C. 225 , 171 S.E. 50, 1933 N.C. LEXIS 512 (1933); State v. Stefanoff, 206 N.C. 443 , 174 S.E. 411, 1934 N.C. LEXIS 204 (1934); State v. Green, 207 N.C. 369 , 177 S.E. 120, 1934 N.C. LEXIS 472 (1934); State v. Kelly, 216 N.C. 627 , 6 S.E.2d 533, 1940 N.C. LEXIS 356 (1940); State v. Miller, 219 N.C. 514 , 14 S.E.2d 522, 1941 N.C. LEXIS 95 (1941); State v. Bennet, 226 N.C. 82 , 36 S.E.2d 708, 1946 N.C. LEXIS 382 (1946); State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Fox, 277 N.C. 1 , 175 S.E.2d 561, 1970 N.C. LEXIS 506 (1970); State v. Hairston, 280 N.C. 220 , 185 S.E.2d 633, 1972 N.C. LEXIS 1223 , cert. denied, 409 U.S. 888, 93 S. Ct. 194, 34 L. Ed. 2d 145, 1972 U.S. LEXIS 1773 (1972); State v. Wright, 282 N.C. 364 , 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972); State v. Carey, 288 N.C. 254 , 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (1976); State v. Peplinski, 290 N.C. 236 , 225 S.E.2d 568, 1976 N.C. LEXIS 1053 , cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301, 1976 U.S. LEXIS 3421 (1976); State v. Squire, 292 N.C. 494 , 234 S.E.2d 563, 1977 N.C. LEXIS 1134 , cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977).

But an interrelationship between felony and the homicide is prerequisite to application of felony-murder doctrine. State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Squire, 292 N.C. 494 , 234 S.E.2d 563, 1977 N.C. LEXIS 1134 , cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977); State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Unbroken Chain of Events Is Required. —

A killing is committed in the perpetration or attempted perpetration of a felony within the purview of a felony-murder statute when there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is linked to or part of the series of incidents, forming one continuous transaction. State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972); State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Shrader, 290 N.C. 253 , 225 S.E.2d 522, 1976 N.C. LEXIS 1054 (1976); State v. Covington, 290 N.C. 313 , 226 S.E.2d 629, 1976 N.C. LEXIS 1081 (1976); State v. Squire, 292 N.C. 494 , 234 S.E.2d 563, 1977 N.C. LEXIS 1134 , cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977); State v. Wooten, 295 N.C. 378 , 245 S.E.2d 699, 1978 N.C. LEXIS 889 (1978); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Fields, 315 N.C. 1 91 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985); State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

In felony murder, the killing may, but need not, be intentional. There must, however, be an unbroken chain of events leading from the attempted felony to the act causing death, so that the homicide is part of a series of events forming one continuous transaction. State v. Gibbs, 335 N.C. 1 , 436 S.E.2d 321, 1993 N.C. LEXIS 542 (1993), cert. denied, 512 U.S. 1246, 114 S. Ct. 2767, 129 L. Ed. 2d 881, 1994 U.S. LEXIS 5069 (1994).

Trial court properly denied defendant’s motion to dismiss the charge of first-degree felony murder because a break in time, place, and causal relationship did not occur between the victim’s death, which happened in an auto accident in a high speed chase on a highway 30 minutes after defendant stole a vehicle, and the underlying felony of robbery with a dangerous weapon, in which defendant stole the vehicle from the owner of the vehicle with a knife in a shopping mall parking lot. State v. Doyle, 161 N.C. App. 247, 587 S.E.2d 917, 2003 N.C. App. LEXIS 2059 (2003).

Continuous Transaction. —

A dwelling is occupied, for purposes of the arson statute, when the interval between the mortal blow and the burning is short, and the murder and the arson constitute parts of a continuous transaction. State v. Campbell, 332 N.C. 116 , 418 S.E.2d 476, 1992 N.C. LEXIS 363 (1992).

Trial court properly submitted a first-degree murder charge to the jury on the basis of felony murder, where the evidence tended to show that defendant shot the first victim after the first victim tackled defendant’s brother, that the second victim immediately grabbed defendant attempting to disarm him, and that defendant then shot the second victim in the head. State v. Johnson, 182 N.C. App. 63, 641 S.E.2d 364, 2007 N.C. App. LEXIS 500 (2007).

Trial court did not err in submitting a murder charge to the jury on the theory of felony murder under G.S. 14-17 in the case of a defendant shooting the victim while attempting to collect money due for the delivery of cocaine a week earlier; defendant admitted that he was there to collect the money for the cocaine. State v. Freeman, 202 N.C. App. 740, 690 S.E.2d 17, 2010 N.C. App. LEXIS 371 (2010).

State presented sufficient evidence to establish that defendant shot and killed the victim in the course of the robbery of the victim’s handgun. The State’s evidence indicated that defendant did not arrive at the car wash office with a weapon, but during the course of the evening obtained the victim’s handgun, used it to shoot both victims, and then fled with the weapon; the State produced sufficient evidence that defendant’s taking and use of the weapon were part of a continuous transaction, such that it was proper to convict him of the armed robbery of the same instrument used to commit the robbery. State v. McMillan, 214 N.C. App. 320, 718 S.E.2d 640, 2011 N.C. App. LEXIS 1625 (2011).

Trial court properly denied defendant’s motion to dismiss the first-degree murder charge under the felony murder rule, because there was substantial evidence from which the jury could have concluded that defendant struck the victim with a rock in order to take his wallet and that the killing and taking occurred as part of a continuous transaction. State v. Gettys, 219 N.C. App. 93, 724 S.E.2d 579, 2012 N.C. App. LEXIS 280 (2012).

Evidence was sufficient to permit a jury to find that defendant murdered the victim in the perpetration of felony larceny, as part of one continuous transaction, because the victim was killed in the victim’s apartment by blunt force injuries to the victim’s head, defendant’s DNA profile matched the DNA obtained from the top of a broken beer bottle found by the victim’s body, and defendant possessed the victim’s vehicle after the victim’s death. State v. McNeill, 243 N.C. App. 762, 778 S.E.2d 457, 2015 N.C. App. LEXIS 908 (2015).

Where the felony and the murder were interrelated parts of a series of events that formed one continuous transaction, defendant was properly charged with first-degree murder under the felony-murder theory. State v. Price, 344 N.C. 583 , 476 S.E.2d 317, 1996 N.C. LEXIS 498 (1996).

There was no break in the chain of events between the taking of the victim’s property and the force causing the victim’s death, so that the taking and the homicide were part of the same series of events, forming one continuous transaction. State v. Hartman, 344 N.C. 445 , 476 S.E.2d 328, 1996 N.C. LEXIS 502 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1562, 137 L. Ed. 2d 708, 1997 U.S. LEXIS 2745 (1997).

Victim’s Arrival Not a Break in Chain. —

Where victim’s arrival at the scene could be viewed as a break in the chain of events only insofar as his arrival interrupted the commission of felonies that, up until that moment, had been ongoing, his killing by the defendant resulted from and was the culmination of defendant’s course of criminal conduct. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Nor Is Commission of Underlying Felony. —

A killing is committed in the perpetration or attempted perpetration of a felony when there is no break in the chain of events leading from the initial felony to the act causing death, and the underlying felony is not deemed terminated prior to the killing merely because the participants have proceeded far enough to be convicted of the underlying felony. State v. Rinck, 303 N.C. 551 , 280 S.E.2d 912, 1981 N.C. LEXIS 1197 (1981).

But completion of the felony is not required to sustain a conviction under the felony-murder rule. State v. Hopper, 292 N.C. 580 , 234 S.E.2d 580, 1977 N.C. LEXIS 1140 (1977).

Self-defense, perfect or imperfect, is not a defense to first-degree murder under the felony murder theory. State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

As the purpose of the felony murder role is to deter even accidental killings from occurring during the commission of a dangerous felony, to allow self-defense, perfect or imperfect, to apply to felony murder would defeat that purpose. It is only certain applicable underlying felonies that can be subject to an instruction on perfect self-defense. State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

The felony murder rule may be applied when the underlying felony is murder. State v. Weeks, 322 N.C. 152 , 367 S.E.2d 895, 1988 N.C. LEXIS 239 (1988).

A murder committed in the perpetration or attempt to perpetrate arson is murder in the first degree, irrespective of premeditation, deliberation or malice aforethought. State v. McLaughlin, 286 N.C. 597 , 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976).

A homicide committed in the perpetration or attempted perpetration of rape is murder in the first degree and proof thereof dispenses with the necessity of proof of premeditation and deliberation. State v. Mays, 225 N.C. 486 , 35 S.E.2d 494, 1945 N.C. LEXIS 424 (1945); State v. King, 226 N.C. 241 , 37 S.E.2d 684, 1946 N.C. LEXIS 430 (1946); State v. Crawford, 260 N.C. 548 , 133 S.E.2d 232, 1963 N.C. LEXIS 775 (1963).

Statutory Rape of a Child by an Adult. —

Defendant’s conviction of first-degree murder under the felony-murder rule was appropriate because the underlying felony of statutory rape of a child by an adult sufficiently supported the conviction as the intent to commit the underlying act of sexual intercourse, inherent in the offense of statutory rape, satisfied the intent required for the crime to serve as the basis of a felony-murder charge. Furthermore, defendant was not entitled to vacatur of the conviction based on defendant’s acquittal of the predicate felony. State v. Watson, 277 N.C. App. 314, 858 S.E.2d 354, 2021- NCCOA-186, 2021 N.C. App. LEXIS 206 (2021).

Homicide in Perpetration or Attempted Perpetration of Burglary. —

A finding that a homicide was committed in the perpetration of a burglary suffices to support a conviction of murder in the first degree. State v. Simmons, 286 N.C. 681 , 213 S.E.2d 280, 1975 N.C. LEXIS 1271 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208, 1976 U.S. LEXIS 4204 (1976).

Defendant’s admission he pulled up a chair to the outside of the victim’s window, had a gun in his possession when it discharged, and shot the victim, allowed the jury to infer defendant’s attempted first-degree burglary and resulting felony murder. State v. Bumgarner, 147 N.C. App. 409, 556 S.E.2d 324, 2001 N.C. App. LEXIS 1178 (2001).

Murder committed in the perpetration or attempt to perpetrate robbery is murder in the first degree, irrespective of premeditation or deliberation or malice aforethought. State v. Lane, 166 N.C. 333 , 81 S.E. 620, 1914 N.C. LEXIS 403 (1914); State v. Glover, 208 N.C. 68 , 179 S.E. 6, 1935 N.C. LEXIS 3 20 (1935); State v. Exum, 213 N.C. 16 , 195 S.E. 7, 1938 N.C. LEXIS 3 (1938); State v. Alston, 215 N.C. 713 , 3 S.E.2d 11, 1939 N.C. LEXIS 353 (1939); State v. Kelly, 216 N.C. 627 , 6 S.E.2d 533, 1940 N.C. LEXIS 356 (1940); State v. Biggs, 224 N.C. 722 , 32 S.E.2d 352, 1944 N.C. LEXIS 256 (1944); State v. Maynard, 247 N.C. 462 , 101 S.E.2d 340, 1958 N.C. LEXIS 562 (1958); State v. Bunton, 247 N.C. 510 , 101 S.E.2d 454, 1958 N.C. LEXIS 579 (1958); State v. Bailey, 254 N.C. 380 , 119 S.E.2d 165, 1961 N.C. LEXIS 459 (1961); State v. Haynes, 276 N.C. 150 , 171 S.E.2d 435, 1970 N.C. LEXIS 648 (1970); State v. Wright, 282 N.C. 364 , 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972); State v. Carey, 285 N.C. 509 , 206 S.E.2d 222, 1974 N.C. LEXIS 1006 (1974); State v. Simmons, 286 N.C. 681 , 213 S.E.2d 280, 1975 N.C. LEXIS 1271 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3207, 49 L. Ed. 2d 1208, 1976 U.S. LEXIS 4204 (1976); State v. Carey, 288 N.C. 254 , 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (1976); State v. McZorn, 288 N.C. 417 , 219 S.E.2d 201, 1975 N.C. LEXIS 1008 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4214 (1976); State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. Jones, 290 N.C. 292 , 225 S.E.2d 549, 1976 N.C. LEXIS 1058 (1976); State v. Swift, 290 N.C. 383 , 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976); State v. Dollar, 292 N.C. 344 , 233 S.E.2d 521, 1977 N.C. LEXIS 1094 (1977); State v. Wall, 304 N.C. 609 , 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (1982).

Alternative Acts of Robbery. —

Where a trial court’s instructions allowed a jury to find defendant guilty of felony murder if it found that he committed either robbery with a dangerous weapon of a store owner or robbery with a dangerous weapon of a customer — the commission of one of the several felonies enumerated in G.S. 14-17 — the N.C. Const., Art. I, § 24 and G.S. 15A-1237(b) requirements of jury unanimity were satisfied. Either of these alternative acts established an element of felony murder. State v. Taylor, 362 N.C. 514 , 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Evidence that defendant robbed a restaurant at night, ordered the victims to lie down and then methodically aimed and shot them was sufficient to show premeditation and deliberation, and it was thus not error for the trial court to refuse to instruct the jury on second degree murder. State v. Robinson, 330 N.C. 1 , 409 S.E.2d 288, 1991 N.C. LEXIS 666 (1991).

An essential element of armed robbery, indeed the heart of the offense, is that a firearm or other dangerous weapon is used whereby the life of a person is endangered or threatened. This act is by its nature inherently dangerous to human life; and if this danger against which the statute is aimed occurs and the robber kills, the act is ordinarily murder under the felony-murder rule. State v. Barnett, 307 N.C. 608 , 300 S.E.2d 340, 1983 N.C. LEXIS 1110 (1983); State v. Jackson, 309 N.C. 26 , 305 S.E.2d 703, 1983 N.C. LEXIS 1312 (1983).

If there is evidence tending to show that defendant took property belonging to the deceased immediately after killing him, such evidence would support a jury determination that the killing occurred during the perpetration of a robbery. State v. Wooten, 295 N.C. 378 , 245 S.E.2d 699, 1978 N.C. LEXIS 889 (1978).

Interval Between Murder and Taking. —

For purposes of a felony murder charge, a homicide victim is still a “person,” within the meaning of the robbery statute, when the interval between the fatal blow and the taking of property is short. State v. Pakulski, 319 N.C. 562 , 356 S.E.2d 319, 1987 N.C. LEXIS 2089 (1987).

Neither the commission of armed robbery, as defined by G.S. 14-87(a), nor the commission of felony murder based on armed robbery depends upon whether the intention to commit the taking of the victim’s property was formed before or after the killing. State v. Handy, 331 N.C. 515 , 419 S.E.2d 545, 1992 N.C. LEXIS 423 (1992).

What Unspecified Felonies Are Within Purview of Section. —

The felony-murder language contained in this section will be accorded its plain meaning, and will not be interpreted to mean that only those offenses which are expressly set out and felonies where the use of a deadly weapon is not an element of the felony may serve as underlying felonies for purposes of the felony-murder rule. State v. King, 316 N.C. 78 , 340 S.E.2d 71, 1986 N.C. LEXIS 1892 (1986).

Felony murder rule may be used in automobile cases where an underlying felony is committed, even though the General Assembly has enacted the more specific statutes of felony death by vehicle and misdemeanor death by vehicle, G.S. 20-141.4 . State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405, 1999 N.C. App. LEXIS 622 (1999), aff'd in part and rev'd in part, 353 N.C. 159 , 538 S.E.2d 917, 2000 N.C. LEXIS 894 (2000).

And prohibition against ex post facto laws was not violated by the felony murder rule’s application in automobile accident. State v. Jones, 133 N.C. App. 448, 516 S.E.2d 405, 1999 N.C. App. LEXIS 622 (1999), aff'd in part and rev'd in part, 353 N.C. 159 , 538 S.E.2d 917, 2000 N.C. LEXIS 894 (2000).

Discharging Firearm into Occupied Property. —

The criminal offense created by G.S. 14-34.1 is a felony within the purview of this section. State v. Williams, 284 N.C. 67 , 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973); State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864, 1974 N.C. App. LEXIS 1859 (1974); State v. Swift, 290 N.C. 383 , 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976); State v. Wall, 304 N.C. 609 , 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (1982); State v. King, 316 N.C. 78 , 340 S.E.2d 71, 1986 N.C. LEXIS 1892 (1986).

A person has committed the felony of firing into an occupied vehicle under G.S. 14-34.1 , which will support a conviction of felony murder under this section, if he intentionally, without legal justification or excuse, discharges a firearm into an occupied vehicle, with knowledge that the vehicle is then occupied by one or more persons, or when he has reasonable grounds to believe that the vehicle might be occupied by one or more persons. State v. Wheeler, 321 N.C. 725 , 365 S.E.2d 609, 1988 N.C. LEXIS 229 (1988).

Any rational trier of fact could have found that defendant intended to fire into vehicle in which victim was sitting when he was killed from evidence that defendant pointed his pistol toward the vehicle and fired the pistol so that a bullet went into the vehicle. State v. Wheeler, 321 N.C. 725 , 365 S.E.2d 609, 1988 N.C. LEXIS 229 (1988).

Discharging a firearm into an occupied structure is a felony which will support a first degree felony murder prosecution. When persons act in concert to commit the felony of discharging a firearm into an occupied structure, each person is guilty not only of that felony but for any homicide committed in its perpetration. State v. Thomas, 325 N.C. 583 , 386 S.E.2d 555, 1989 N.C. LEXIS 597 (1989).

Evidence supported instruction that there was evidence that defendant confessed to first degree murder where he stated that willfully and with knowledge he discharged his gun three times into an occupied vehicle. State v. Cannon, 341 N.C. 79 , 459 S.E.2d 238, 1995 N.C. LEXIS 386 (1995).

Evidence was sufficient to submit a first-degree felony murder charge under the felony murder rule under G.S. 14-17 based on discharging a firearm into an occupied vehicle under G.S. 14-34.1 because defendant admitted that he drove his vehicle into a wooded area off the roadway and fired repeated shots at the victim’s truck as it drove by. State v. Hunt, 198 N.C. App. 488, 680 S.E.2d 720, 2009 N.C. App. LEXIS 1344 (2009), cert. dismissed, 368 N.C. 926 , 786 S.E.2d 919, 2016 N.C. LEXIS 522 (2016).

Trial court did not err by allowing the discharging of a firearm into occupied property to serve as the predicate felony to defendant’s felony murder conviction. State v. Maldonado, 241 N.C. App. 370, 772 S.E.2d 479, 2015 N.C. App. LEXIS 442 (2015).

Defendant was not prejudiced by his counsel’s failure to argue that it was error to instruct the jury on felony murder based on the underlying felony of discharging a weapon into occupied property given that defendant only fired a single shot at a single victim, and therefore the trial court erred by granting defendant’s motion for appropriate relief and vacating his convictions of first-degree murder and discharging a weapon into occupied property, because no legal authority existed in North Carolina that would have prohibited defendant’s felony murder conviction from being predicated on the crime of discharging a weapon into occupied property. State v. Spruiell, 252 N.C. App. 486, 798 S.E.2d 802, 2017 N.C. App. LEXIS 226 (2017).

Felonious Escape. —

A murder committed in the perpetration or attempt to perpetrate a felonious escape is murder in the first degree. State v. Lee, 277 N.C. 205 , 176 S.E.2d 765, 1970 N.C. LEXIS 566 (1970); State v. Squire, 292 N.C. 494 , 234 S.E.2d 563, 1977 N.C. LEXIS 1134 , cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977).

Felonious Breaking and Entering and Larceny. —

Where the evidence tends to show that defendant, armed with a pistol, feloniously broke into and entered an apartment, that he committed the crime of felonious larceny therein, and that while in said apartment he came upon and shot and killed the deceased, these crimes created substantial foreseeable human risks and therefore were unspecified felonies within the purview of this section. State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972).

Where the initial breaking into doctor’s office was not accomplished with a deadly weapon, and there was no evidence that defendants even possessed a deadly weapon when they broke into the office, the breaking or entering could not serve as an underlying felony on which to predicate a felony murder conviction based on the murder of security guard. State v. Pakulski, 319 N.C. 562 , 356 S.E.2d 319, 1987 N.C. LEXIS 2089 (1987).

Evidence was sufficient for first-degree murder under the felony-murder rule of G.S. 14-17 because there was a common plan to break into a house and either kill or rob: defendant obtained guns and drove a codefendant to the house; the codefendant broke into and entered the house carrying a gun; defendant was carrying a gun when he left the vehicle to check on the codefendant; and the victim was found in the basement of the house. State v. Wiley, 182 N.C. App. 437, 642 S.E.2d 717, 2007 N.C. App. LEXIS 688 (2007).

Sodomy. —

Without deciding whether every felony not specified in this section must be inherently dangerous to life, the crime committed where a 15-year-old boy, under threat of gunfire and knife, was compelled to submit to an act of sodomy by the defendant was a crime as atrocious and as inherently dangerous as the specified felonies in this section. State v. Doss, 279 N.C. 413 , 183 S.E.2d 671, 1971 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (1972).

Kidnapping. —

When persons act in concert to commit the felony of first-degree kidnapping, each person is guilty not only of first-degree kidnapping, but also for any homicide committed in its perpetration. State v. Roseborough, 344 N.C. 121 , 472 S.E.2d 763, 1996 N.C. LEXIS 404 (1996).

Where evidence was sufficient to establish that the blows used for restraint were separate and apart from the blows causing death, trial court did not err in denying motion to dismiss second-degree kidnapping charge. State v. Stroud, 345 N.C. 106 , 478 S.E.2d 476, 1996 N.C. LEXIS 653 (1996), cert. denied, 522 U.S. 826, 118 S. Ct. 86, 139 L. Ed. 2d 43, 1997 U.S. LEXIS 4830 (1997), cert. dismissed, 368 N.C. 424 , 779 S.E.2d 145, 2015 N.C. LEXIS 1200 (2015).

Where the evidence showed that the victim was transported in her car to the location of the murder, that defendant took the victim’s keys, and that he then drove back to and attempted to rob the store amply supported submission of felony murder with kidnapping as the underlying felony. State v. Richardson, 346 N.C. 520 , 488 S.E.2d 148, 1997 N.C. LEXIS 489 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 652, 1998 U.S. LEXIS 190 (1998), writ denied, 362 N.C. 478 , 667 S.E.2d 272, 2008 N.C. LEXIS 707 (2008), writ denied, 368 N.C. 770 , 782 S.E.2d 736, 2016 N.C. LEXIS 227 (2016).

When defendant presented the victim’s withdrawal slip and driver’s license to the bank while holding the victim hostage in the passenger’s seat, she made a false representation to the bank that the withdrawal was legitimate and had the continuing support of the victim; because defendant’s misrepresentation was clearly calculated to mislead and did in fact mislead, defendant’s actions constituted a false pretense and the “purpose” element of the kidnapping charge was satisfied and thus, the kidnapping and felony murder convictions were supported by sufficient evidence. State v. Parker, 354 N.C. 268 , 553 S.E.2d 885, 2001 N.C. LEXIS 1090 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162, 2002 U.S. LEXIS 4081 (2002).

Felonious Child Abuse. —

Felony murder on the basis of felonious child abuse requires the State to prove that the killing took place while the accused was perpetrating or attempting to perpetrate felonious child abuse with the use of a deadly weapon. State v. Pierce, 346 N.C. 471 , 488 S.E.2d 576, 1997 N.C. LEXIS 477 (1997).

Felonious Child Abuse And Use of Hands as Deadly Weapons. —

The court rejected the defendant’s ex post facto objections and upheld the defendant’s conviction, under this section, of murder while committing felonious child abuse in violation of G.S. 14-318.4 with the use of a deadly weapon, her hands, although this theory had not, at the time of the victim’s death, been used to support a first degree murder conviction resulting from the use of the hands as deadly weapons. State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569, 2000 N.C. App. LEXIS 541 (2000).

Mere possession of a deadly weapon is enough to satisfy the requirement that the use of a deadly weapon distinguishes the commission or attempted commission of an unspecified or “other” felony and makes the defendant guilty of a felony murder, even if the weapon is not physically used to actually commit the felony. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Assault with a Deadly Weapon with Intent to Kill. —

Where defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury under G.S. 14-32 , which is a felony involving use of a deadly weapon, the crime was thus within the purview of the felony-murder statute. State v. Terry, 337 N.C. 615 , 447 S.E.2d 720, 1994 N.C. LEXIS 493 (1994).

Deadly Weapons. —

Where there was evidence that the defendant used gasoline and fire to burn a mobile home while it was occupied, the gasoline and fire were used in combination as “a deadly weapon” for purposes of a felony murder conviction. State v. Hales, 344 N.C. 419 , 474 S.E.2d 328, 1996 N.C. LEXIS 487 (1996).

State did not have to prove that defendant knew the codefendant possessed a gun in order to for defendant to be convicted of felony murder under G.S. 14-17 based on trafficking in cocaine with a deadly weapon in violation of G.S. 90-95 under a concert of action theory; defendant’s knowledge that the codefendant had a gun was irrelevant as long as the codefendant killed the victim while possession or attempting to possess the drugs, which the State substantially established was the common purpose of defendant and the codefendant. State v. Herring, 176 N.C. App. 395, 626 S.E.2d 742, 2006 N.C. App. LEXIS 521 (2006), cert. dismissed, 365 N.C. 334 , 2011 N.C. LEXIS 1167 (2011).

Trial court did not err by submitting to the jury that defendant’s hands and arms could constitute deadly weapons during his felony murder trial because during the assault, the victim’s assailant engaged in a violent attack while using his hands and arms that resulted in extensive injuries. State v. Steen, 264 N.C. App. 566, 826 S.E.2d 478, 2019 N.C. App. LEXIS 240 (2018).

Pecuniary gain is not an essential element of felony murder. This circumstance examines the motive of the defendant rather than his acts; however, while motive does not constitute an element of the offense, it is appropriate to be considered on the question of sentence. State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981).

Independent proof of the underlying felony in a felony murder prosecution is not necessary where a confession, otherwise corroborated as to the murder, includes sufficient facts to support the existence of the felony. State v. Franklin, 308 N.C. 682 , 304 S.E.2d 579, 1983 N.C. LEXIS 1292 (1983).

It is proper to show solely by a defendant’s confession that the homicide was murder in the first degree by showing that the murder was committed in the perpetration of another felony. State v. Franklin, 308 N.C. 682 , 304 S.E.2d 579, 1983 N.C. LEXIS 1292 (1983).

Merger of Underlying Felony into Murder Conviction. —

When a defendant is convicted of first-degree murder pursuant to the felony murder rule, and a verdict of guilty is also returned on the underlying felony, this latter conviction provides not basis for an additional sentence; hence it merges into the murder conviction, and any judgment imposed on the underlying felony must be arrested. State v. Silhan, 302 N.C. 223 , 275 S.E.2d 450, 1981 N.C. LEXIS 1057 (1981), State v. Adams, 347 N.C. 48 , 490 S.E.2d 220, 1997 N.C. LEXIS 596 (1997).

Where defendants were charged with first-degree murder under the felony murder doctrine, the underlying felony became part of the first-degree murder charge, and further prosecution for the underlying felony was prohibited; therefore, the trial court was not required to instruct the jury as to the lesser included offenses of the underlying felony. State v. Rinck, 303 N.C. 551 , 280 S.E.2d 912, 1981 N.C. LEXIS 1197 (1981).

When the sole basis of a defendant’s conviction of first-degree murder is pursuant to the felony murder rule, no additional sentence may be imposed for the underlying felony as a separate independent offense, since the underlying felony merges with the conviction of first degree murder. State v. Weeks, 322 N.C. 152 , 367 S.E.2d 895, 1988 N.C. LEXIS 239 (1988).

A defendant may not be punished both for felony murder and for the underlying, predicate felony. Thus, the underlying felony supporting a conviction for felony murder merges into the murder conviction, provides no basis for an additional sentence, and any judgment imposed thereon must be arrested. State v. Barlowe, 337 N.C. 371 , 446 S.E.2d 352, 1994 N.C. LEXIS 398 (1994).

If a defendant is convicted only of first-degree felony murder, the underlying felony cannot be used as an aggravating circumstance at the sentencing proceeding, nor if convicted of the underlying felony can a defendant be sentenced separately for that felony. State v. Millsaps, 356 N.C. 556 , 572 S.E.2d 767, 2002 N.C. LEXIS 1251 (2002).

Upon defendant’s conviction of first degree murder on a theory of felony murder, the trial court erred by failing to arrest judgment on the underlying felony of felony larceny. State v. McNeill, 243 N.C. App. 762, 778 S.E.2d 457, 2015 N.C. App. LEXIS 908 (2015).

Same — Arson. —

Where proof of arson charge was an essential and indispensable element in the State’s proof of felony-murder, it afforded no basis for additional punishment. State v. White, 291 N.C. 118 , 229 S.E.2d 152, 1976 N.C. LEXIS 938 (1976).

Same — Robbery. —

Where it appeared conclusively that armed robbery charges were proved as essential elements in the capital offense of murder in the first degree upon which defendants were convicted, such charges became a part of and were merged into the murder charges. Having been so used, the defendants could not again be charged, convicted and sentenced for these elements, although the robberies constituted crimes within themselves. State v. Carroll, 282 N.C. 326 , 193 S.E.2d 85, 1972 N.C. LEXIS 960 (1972).

When the State, in the trial of a charge of murder, uses evidence that the murder occurred in the perpetration of an armed robbery so as to establish that the murder was murder in the first degree, the underlying felony becomes a part of the murder charge to the extent of preventing a further prosecution or sentence of the defendant for commission of the armed robbery. State v. Squire, 292 N.C. 494 , 234 S.E.2d 563, 1977 N.C. LEXIS 1134 , cert. denied, 434 U.S. 998, 98 S. Ct. 638, 54 L. Ed. 2d 493, 1977 U.S. LEXIS 4325 (1977).

Same — Discharging Firearm into Occupied Property. —

When a felony within the purview of G.S. 14-34.1 is relied upon as an essential element of and the basis for the conviction of a defendant for murder in the first degree under the felony-murder rule, no additional punishment can be imposed for such felony as an independent criminal offense. State v. Williams, 284 N.C. 67 , 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973).

Same — Firing at Automobile. —

State presented sufficient evidence for a reasonable jury to have found that defendant intended to shoot at the victim’s truck as he drove away, and committed the offense of felony murder in violation of G.S. 14-17 . State v. Mays, 154 N.C. App. 572, 573 S.E.2d 202, 2002 N.C. App. LEXIS 1542 (2002).

No double jeopardy existed where defendant was convicted of both discharging a firearm into a vehicle and felony murder, because North Carolina does not recognize the merger doctrine. State v. Jackson, 189 N.C. App. 747, 659 S.E.2d 73, 2008 N.C. App. LEXIS 689 (2008), cert. denied, 555 U.S. 1215, 129 S. Ct. 1532, 173 L. Ed. 2d 662, 2009 U.S. LEXIS 1704 (2009).

Punishment for Offense Which Was Not the Underlying Felony. —

When a defendant has been convicted of murder in the first degree based upon a finding that the murder was committed in the perpetration of a felony, separate punishment may not be imposed for the underlying felony. However, separate punishment may be imposed for any offense which arose out of the same transaction, but was not the underlying felony for the felony-murder conviction. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Same — Where Defendant Is Convicted on Theory of Premeditation and Deliberation. —

When a defendant has been convicted of first degree murder on a theory of premeditation and deliberation and in the process commits some other felony, the other felony is not an element of the murder conviction although the other felony may be part of the same continuous transaction, and therefore, a defendant may in such cases be sentenced upon both the murder conviction and the other felony conviction. State v. Silhan, 302 N.C. 223 , 275 S.E.2d 450, 1981 N.C. LEXIS 1057 (1981), State v. Adams, 347 N.C. 48 , 490 S.E.2d 220, 1997 N.C. LEXIS 596 (1997).

When a defendant is charged with both felony murder and premeditated and deliberate murder, but the jury returns a verdict of guilty of first degree murder without specifying upon which theory it relied, the court is to treat the verdict as a conviction for felony murder. The merger rule would then prohibit the court from considering the underlying felony in the sentencing hearing. However, when the jury’s verdict specifies both theories in its verdict of murder in the first degree, it is the court’s decision, not that of the jury, to select the theory on which the sentence for the homicide is to be based. And where the sentence for homicide rests upon the premeditated and deliberate murder conviction, the merger rule does not apply. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

When a jury is properly instructed upon both theories of premeditation and deliberation and felony murder, and returns a first degree murder verdict without specifying whether it relied on either or both theories, the case is treated as if the jury relied upon the felony murder theory for purposes of applying the merger rule, and judgment imposed on a conviction for the underlying felony must be arrested. State v. Silhan, 302 N.C. 223 , 275 S.E.2d 450, 1981 N.C. LEXIS 1057 (1981), State v. Adams, 347 N.C. 48 , 490 S.E.2d 220, 1997 N.C. LEXIS 596 (1997).

Where the jury specifically found defendant guilty of first degree murder of one victim under the felony murder rule, but made no finding as to defendant’s guilt on the basis of malice, premeditation and deliberation, and the underlying felony was the second-degree murder of another victim, the trial court could not impose an additional sentence upon defendant by sentencing him separately for this murder. State v. Weeks, 322 N.C. 152 , 367 S.E.2d 895, 1988 N.C. LEXIS 239 (1988).

Nonmerger of Felony Where Defendant Found Guilty Under Dual Theories. —

When the evidence so warrants, a trial judge may submit a special verdict form to the jury that allows the jurors to indicate whether they find defendant guilty of first degree murder based upon premeditation and deliberation or first degree murder based on a felony murder. However, if both theories are submitted to the jury and the jury finds defendant guilty under both theories, the underlying felony need not merge with the murder. State v. Lewis, 321 N.C. 42 , 361 S.E.2d 728, 1987 N.C. LEXIS 2493 (1987).

Nonmerger Where Victim Does Not Die from Assault. —

Where the victim did not die as a result of an assault with a machete, but from strangulation, the assault was a separate offense from the murder and the trial court did not err in submitting a felony murder instruction to the jury because the felonious assault did not merge into the homicide. State v. Carroll, 356 N.C. 526 , 573 S.E.2d 899, 2002 N.C. LEXIS 1265 (2002), cert. denied, 539 U.S. 949, 123 S. Ct. 2624, 156 L. Ed. 2d 640, 2003 U.S. LEXIS 4928 (2003).

Where the court has consolidated first-degree murder and armed robbery charges in the same trial against defendant under G.S. 15-152 (now G.S. 15A-926(a) ), the court may instruct the jury on murder in the first degree as a separate crime requiring deliberation, premeditation, and malice, rather than permit the jury to rely on the felony-murder rule as a basis for finding defendant guilty of first degree murder. State v. Thompson, 285 N.C. 181 , 203 S.E.2d 781, 1974 N.C. LEXIS 933 , cert. denied, 419 U.S. 867, 95 S. Ct. 123, 42 L. Ed. 2d 104, 1974 U.S. LEXIS 2748 (1974).

Where the trial judge submitted case to the jury on alternative theories charging felony murder in the commission of armed robbery and felonious breaking and entering, one of which was determined to be erroneous and the other properly submitted, and it could not be discerned from the record the theory upon which the jury relied, the case would be remanded for a new trial. State v. Pakulski, 319 N.C. 562 , 356 S.E.2d 319, 1987 N.C. LEXIS 2089 (1987).

Indictment for Underlying Felony. —

The State was not required to indict defendant for burglary in order to use burglary as the underlying felony in felony murder charges; thus, any variance between the burglary indictment and the jury charge on burglary did not prevent the State from using burglary as the underlying felony. State v. Scott, 150 N.C. App. 442, 564 S.E.2d 285, 2002 N.C. App. LEXIS 576 (2002).

Submission of Felony Murder Charge Not Error. —

Although there was sufficient evidence to submit felony murder to the jury, even if there were not, defendant could have suffered no prejudice thereby where the jury did not find him guilty of any charges based on a felony murder theory. State v. Green, 321 N.C. 594 , 365 S.E.2d 587, 1988 N.C. LEXIS 112 , cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

Failure to Submit Felony Murder Theory. —

Because defendant, who was convicted of first degree murder upon a theory of premeditation and deliberation, could have received the same sentence regardless of whether a felony murder theory was also submitted to the jury, he suffered no prejudice by failure of the court to submit such theory to the jury. State v. Lewis, 321 N.C. 42 , 361 S.E.2d 728, 1987 N.C. LEXIS 2493 (1987).

Evidence of Murder in Perpetration of Felony Held Sufficient. —

Evidence tending to show that the prisoner, with another, entered a store with intent to rob its cash drawer and shot and killed the deceased was evidence of an attempt to commit a felony and sufficient to sustain a verdict of murder in the first degree, as defined by this section, under proper instructions from the court upon conflicting evidence. State v. Sterling, 200 N.C. 18 , 156 S.E. 96, 1930 N.C. LEXIS 8 (1930).

Evidence tending to show that defendant killed the deceased with a deadly weapon while attempting to perpetrate a robbery was sufficient to be submitted to the jury on the issue of first degree murder, the credibility and probative force of the evidence being for the jury. State v. Langley, 204 N.C. 687 , 169 S.E. 705, 1933 N.C. LEXIS 238 (1933).

Evidence tending to show that defendant drove to a filling station at night with two others for the purpose of robbery, that defendant waited outside in the car while his companions went into the filling station, and that deceased was killed by a shot from a gun fired from the outside was sufficient to be submitted to the jury on the question of defendant’s guilt of murder in the first degree as stated in this section. State v. Ferrell, 205 N.C. 640 , 172 S.E. 186, 1934 N.C. LEXIS 35 (1934).

Evidence that defendant, while in the custody of officers of the law who had arrested him when they apprehended him in the commission of a robbery, drew his pistol in an attempt to escape, and with premeditation and deliberation shot one of the officers in his attempt to escape, was sufficient to support an instruction to the jury on the question of murder in the first degree. State v. Brooks, 206 N.C. 113 , 172 S.E. 879, 1934 N.C. LEXIS 123 (1934).

Evidence tending to show that defendant perpetrated or attempted to perpetrate the crime of arson upon a dwelling house, and thereby proximately caused the deaths of the occupants, was sufficient to be submitted to the jury on the charge of murder in the first degree. State v. Anderson, 228 N.C. 720 , 47 S.E.2d 1, 1948 N.C. LEXIS 316 (1948).

Evidence tending to show that defendants conspired to rob deceased and that they killed him with deadly weapons in the perpetration of the robbery was sufficient to take the issue of their guilt of murder in the first degree to the jury. State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949).

The confession of defendant that while he was having sexual intercourse with an eight-year-old child, she started to scream and that he put his hand over her mouth, that when he took his hand off her mouth she spoke once and said nothing more, and that he believed her to be dead and carried her away and hid her body, with corroborating evidence that deceased was last seen with defendant, and that her body was found at the place where defendant said he placed it, with expert medical testimony of the use of force and violence in the penetration of deceased’s vagina, and that death resulted from suffocation from the bursting of air sacs in deceased’s lungs, was held sufficient to be submitted to the jury and sustain a conviction of murder in the first degree. State v. Crawford, 260 N.C. 548 , 133 S.E.2d 232, 1963 N.C. LEXIS 775 (1963).

In a prosecution for murder committed during perpetration of an armed robbery and for conspiracy to commit armed robbery, the proof of murder in the first degree is complete when the State proves beyond a reasonable doubt the trigger man shot and killed the victim in the trigger man’s attempt to rob him. State v. Carey, 288 N.C. 254 , 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (1976).

In a prosecution for first degree murder, where defendant admitted to State’s witness that he and his brother had a blunt instrument and a knife when they decided to rob decedent, and evidence showed that decedent died of injuries inflicted by both blunt and sharp objects, the evidence was sufficient to withstand a motion for nonsuit even though defendant’s admissions did not include the actual use of the weapons against decedent. State v. Warren, 289 N.C. 551 , 223 S.E.2d 317, 1976 N.C. LEXIS 1331 (1976).

Where the evidence, taken in the light most favorable to the State, permits a legitimate inference that defendant was engaged in the perpetration or attempted perpetration of a robbery at the time the deceased was killed, the jury is entitled to draw the inference, notwithstanding the State’s introduction of defendant’s extrajudicial declarations in which he stated that he killed in self-defense rather than in the course of a robbery. State v. Wooten, 295 N.C. 378 , 245 S.E.2d 699, 1978 N.C. LEXIS 889 (1978).

Evidence held sufficient to establish that defendant killed victim in the perpetration of the felony of attempting to burn a building used for trade, a felony committed with the use of a deadly weapon, a fire bomb. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Evidence tending to show that the defendant was engaged in a common plan with another individual to perpetrate a robbery against victim and that defendant was present at the scene of the robbery, along with evidence from which the jury could find that the other individual killed the victim in furtherance of the plan to rob him, was sufficient for the jury to find the defendant guilty of first-degree murder under the felony-murder rule, notwithstanding the fact that it might conclude that he did not participate in the actual killing. State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986).

Evidence as to the position of the victim’s legs and evidence of the removal of clothes from the lower part of the victim’s body was sufficient, along with other evidence, to be submitted to the jury on a charge of felony murder when the underlying felony was attempted rape. State v. Harris, 319 N.C. 383 , 354 S.E.2d 222, 1987 N.C. LEXIS 1930 (1987).

Despite testimony of victim to a completed armed robbery, where defendant testified that when he went into house he intended to rob both men who were there, but that after he shot murder victim the other victim asked defendant not to shoot him and threw his wallet toward defendant and that defendant left without taking the wallet, this was evidence from which the jury could have found all the elements of attempted armed robbery so as to support a verdict of felony murder based on attempted armed robbery. State v. Blake, 326 N.C. 31 , 387 S.E.2d 160, 1990 N.C. LEXIS 7 (1990).

The following evidence, viewed in the light most favorable to the State, supported defendant’s conviction for both felony murder and armed robbery: (1) the defendant was at the scene of the crimes at the approximate time of the crimes; (2) he left a witness in a car while he entered a store; (3) he returned to car wearing a different shirt; (4) he was seen leaving the store; (5) he gave money to a witness stating he had gotten it in the store and had had to shoot someone; (6) he threatened to shoot witness if he told anyone; and (7) there had been money in the store earlier in the day. State v. Small, 328 N.C. 175 , 400 S.E.2d 413, 1991 N.C. LEXIS 87 (1991).

Where evidence that defendant’s conduct before the killing appeared to be that of a person “casing a job” or preparing to commit a robbery, and since he was armed, anticipating a possible homicide, and where defendant testified that he and his brother had driven to several convenience stores on the day of the robbery and shooting, that they stopped at the mart at closing time, that no other customers were in the store, and that he saw the victim follow his brother out of the store arguing with him, heard a noise, then saw the victim on the ground, and immediately left the scene it was reasonable to infer that defendant was serving as a lookout for the robbery. State v. Lane, 328 N.C. 598 , 403 S.E.2d 267, 1991 N.C. LEXIS 326 , cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 261, 1991 U.S. LEXIS 5855 (1991).

Where the felony murder theory upon which the case was submitted was fully supported by the evidence, failure to submit the case on a transferred intent theory, that might also have been supported by the evidence, gave defendant no cause to complain. State v. Abraham, 338 N.C. 315 , 451 S.E.2d 131, 1994 N.C. LEXIS 703 (1994).

Since the evidence supported the guilt of both defendants as to all of the felonious assaults, it made no difference which of the felonious assaults was the underlying felony, which defendant actually fired the fatal shots or whether defendants intended that the victim be killed. State v. Abraham, 338 N.C. 315 , 451 S.E.2d 131, 1994 N.C. LEXIS 703 (1994).

The evidence was sufficient to support a conclusion that murder was premeditated and deliberate where defendant carried a gun readied for firing during attempted robbery, indicating he anticipated a violent confrontation and the potential need for deadly force, and there was a lack of provocation on the part of the victim. State v. Bell, 338 N.C. 363 , 450 S.E.2d 710, 1994 N.C. LEXIS 711 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861, 1995 U.S. LEXIS 4361 (1995), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

Evidence that defendant intended to commit armed robbery against the victim, that in furtherance of this intent, he followed the victim outside armed with a sawed off shotgun, and that within the next two minutes defendant shot and killed the victim, was sufficient to support conviction for first degree felony murder. State v. Gillis, 158 N.C. App. 48, 580 S.E.2d 32, 2003 N.C. App. LEXIS 941 (2003).

Evidence which showed that defendant entered an apartment armed with a loaded shotgun, chambered a round of ammunition, verbally threatened the occupants with death, hit one of the occupants in the head to coerce surrender of his property, and shot another occupant in the head at close range while he was involved in a confrontation with another robber was sufficient to sustain the jury’s verdict that the killing and robbery were part of a single transaction, and the trial court did not err when it selected attempted armed robbery as the predicate felony for felony murder, arrested only that conviction, and entered judgments convicting defendant of felony murder and three counts of armed robbery. State v. Coleman, 161 N.C. App. 224, 587 S.E.2d 889, 2003 N.C. App. LEXIS 2039 (2003).

State presented sufficient evidence that the codefendant had constructive possession of the cocaine around the time of the shooting to find that defendant, by virtue of concert of action, committed trafficking in cocaine by possession of more than 400 grams of cocaine while also possessing a deadly weapon in violation of G.S. 90-95 ; when the codefendant shot the victim, the codefendant obtained dominion and control over the victim and the area around him, including the cocaine, and the codefendant’s shooting of the victim within moments of the codefendant stepping into the apartment with the gun to complete the gun transaction was sufficient to convict defendant of felony murder under G.S. 14-17 . State v. Herring, 176 N.C. App. 395, 626 S.E.2d 742, 2006 N.C. App. LEXIS 521 (2006), cert. dismissed, 365 N.C. 334 , 2011 N.C. LEXIS 1167 (2011).

Evidence supported defendant’s first-degree felony murder conviction on the basis of felonious child abuse, as an external examination of the victim’s body revealed the presence of bruises and scratches, including unusual bruises on the buttocks that were not typical of the bruises that usually resulted from a toddler’s fall and a recently inflicted blunt force injury to the victim’s ribs that did not appear to have resulted from the administration of CPR. State v. Perry, 229 N.C. App. 304, 750 S.E.2d 521, 2013 N.C. App. LEXIS 880 (2013).

Instruction Held Improper. —

Where the evidence was sufficient to be submitted to the jury on the theory of defendant’s guilt of murdering his victim in an attempt to commit the crime of rape, but was insufficient to show defendant’s guilt of the crime of kidnapping, an instruction that defendant would be guilty of murder in the first degree if the jury should find that the murder was perpetrated in the attempt to commit the crime of rape of in the commission of the felony of kidnapping would be held prejudicial, as permitting the jury to rest its verdict on a theory not supported by the evidence. State v. Knight, 248 N.C. 384 , 103 S.E.2d 452, 1958 N.C. LEXIS 495 (1958).

Attempted Sale of Cocaine as Underlying Felony. —

Evidence was sufficient for a reasonable juror to find attempted sale of cocaine by defendant, a lesser-included offense of sale of cocaine, thus, the trial court’s submission to the jury of sale of cocaine as a predicate felony to support defendant’s felony murder conviction for one victim’s death was not error. State v. Squires, 357 N.C. 529 , 591 S.E.2d 837, 2003 N.C. LEXIS 1265 (2003), cert. denied, 541 U.S. 1088, 124 S. Ct. 2818, 159 L. Ed. 2d 252, 2004 U.S. LEXIS 4087 (2004).

Arrested Judgment on Predicate Felonies. —

Jury determined that the robbery with a dangerous weapon, larceny, and possession of stolen goods convictions served as the predicate felonies underlying defendant’s conviction for first-degree felony murder, and the trial court failed to arrest judgment on the underlying felonies; the court arrested judgment on the convictions for robbery and larceny, and the possession of stolen goods conviction was vacated. State v. Stroud, 252 N.C. App. 200, 797 S.E.2d 34, 2017 N.C. App. LEXIS 134 (2017).

Mandatory Sentence. —

Imposing a mandatory sentence of life imprisonment without the possibility of parole on defendant, who was convicted of first degree murder under the felony murder rule, violated defendant’s right to be free from cruel and unusual punishment because defendant was under 18 years of age at the time he committed the offense. State v. Pemberton, 228 N.C. App. 234, 743 S.E.2d 719, 2013 N.C. App. LEXIS 729 (2013).

V.Murder in the Second Degree

Common-Law Murder Is Murder in Second Degree. —

By this section the crime of murder in the second degree is as at common law. State v. Smith, 221 N.C. 278 , 20 S.E.2d 313, 1942 N.C. LEXIS 455 (1942).

Since the Act of 1893, the killing being proved, and nothing else appearing, the law presumes malice, but not premeditation and deliberation, and the killing is murder in the second degree. State v. Hicks, 125 N.C. 636 , 34 S.E. 247, 1899 N.C. LEXIS 276 (1899).

Unless Specifically Made Murder in First Degree. —

All crimes which were murder at common law remain murder in the second degree, unless otherwise made murder in the first degree under one of the specific classifications of the statutes. State v. Davis, 305 N.C. 400 , 290 S.E.2d 574, 1982 N.C. LEXIS 1348 (1982).

Under statutes of this description, murder in the second degree is common-law murder but the killing is not accompanied by the distinguishing features of murder in the first degree. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Murder in the second degree is a lesser included offense of first degree murder. With the exception of the element of premeditation and deliberation, the elements of the two charges are the same and any defendant preparing a defense for first degree murder is ipso facto preparing a defense for second degree murder. State v. Goodson, 101 N.C. App. 665, 401 S.E.2d 118, 1991 N.C. App. LEXIS 144 (1991).

Aggravating Factor Required Additional Evidence. —

G.S. 15A-1340.16(d) was not violated because the prosecution was required to prove facts for the aggravated sentences that were in addition to the elements of defendant’s crimes of second degree murder and assault with a deadly weapon inflicting serious injury. State v. Borges, 183 N.C. App. 240, 644 S.E.2d 250, 2007 N.C. App. LEXIS 1037 (2007), cert. denied, 552 U.S. 1126, 128 S. Ct. 941, 169 L. Ed. 2d 776, 2008 U.S. LEXIS 472 (2008).

Although second-degree murder is a lesser included offense of premeditated and deliberate first-degree murder, a trial court does not have to submit a verdict of second-degree murder to the jury unless it is supported by the evidence. State v. Annadale, 329 N.C. 557 , 406 S.E.2d 837, 1991 N.C. LEXIS 536 (1991).

The essential elements of murder in the second degree are that the killing was unlawful and with malice. For these elements to be presumed present, the burden is upon the State to satisfy the jury from the evidence beyond a reasonable doubt that the defendant intentionally used a deadly weapon, as a weapon, and inflicted wounds proximately resulting in death. State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132, 1970 N.C. App. LEXIS 1519 (1970).

The law of North Carolina continues to be that the elements of malice and unlawfulness are essential to a second-degree murder conviction. Gardner v. Forister, 468 F. Supp. 761, 1979 U.S. Dist. LEXIS 13170 (W.D.N.C. 1979).

Malice Is an Element of Murder in Second Degree. —

An unlawful killing with malice is murder in the second degree. State v. Adams, 241 N.C. 559 , 85 S.E.2d 918, 1955 N.C. LEXIS 409 (1955); State v. Mercer, 275 N.C. 108 , 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969); State v. Winford, 279 N.C. 58 , 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971); State v. Williams, 288 N.C. 680 , 220 S.E.2d 558, 1975 N.C. LEXIS 1036 (1975).

Malice is always a necessary ingredient of murder. State v. Baldwin, 152 N.C. 822 , 68 S.E. 148, 1910 N.C. LEXIS 389 (1910).

But Malice Aforethought Is Not Required. —

The offense of murder in the second degree requires malice as an element, but not malice aforethought. State v. McGee, 47 N.C. App. 280, 267 S.E.2d 67, 1980 N.C. App. LEXIS 3073 (1980).

The Importance of Malice in Attempted Second-Degree Murder. —

Although defendant contended that attempted second-degree murder was a legal impossibility because “one cannot specifically intend a crime of general, or non-specific, intent,” the court held that there are forms of second-degree murder in which the malice element contains the intent to kill, and that attempted second-degree murder, therefore, does properly exist in North Carolina. State v. Coble, 134 N.C. App. 607, 518 S.E.2d 251, 1999 N.C. App. LEXIS 860 (1999), rev'd, 351 N.C. 448 , 527 S.E.2d 45, 2000 N.C. LEXIS 233 (2000).

Premeditation and Deliberation Are Not Elements of Murder in the Second Degree. —

Murder in the second degree is the unlawful killing of a human being with malice, but without elements of premeditation and deliberation. State v. Benson, 183 N.C. 795 , 111 S.E. 869, 1922 N.C. LEXIS 373 (1922); State v. Starnes, 220 N.C. 384 , 17 S.E.2d 346, 1941 N.C. LEXIS 543 (1941); State v. Downey, 253 N.C. 348 , 117 S.E.2d 39, 1960 N.C. LEXIS 663 (1960); State v. Kea, 256 N.C. 492 , 124 S.E.2d 174, 1962 N.C. LEXIS 475 (1962); State v. Foust, 258 N.C. 453 , 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531, 1969 N.C. App. LEXIS 1227 (1969); State v. Jennings, 276 N.C. 157 , 171 S.E.2d 447, 1970 N.C. LEXIS 649 (1970); State v. Duboise, 279 N.C. 73 , 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971); State v. Cannady, 16 N.C. App. 569, 192 S.E.2d 677, 1972 N.C. App. LEXIS 1762 (1972); State v. Fox, 18 N.C. App. 523, 197 S.E.2d 265, 1973 N.C. App. LEXIS 1927 , cert. denied, 283 N.C. 755 , 198 S.E.2d 725, 1973 N.C. LEXIS 1083 (1973); State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976); State v. McCall, 289 N.C. 512 , 223 S.E.2d 303, 1976 N.C. LEXIS 1327 , vacated in part, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278, 1976 U.S. LEXIS 3242 (1976); State v. Cousins, 289 N.C. 540 , 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976); State v. Christopher, 29 N.C. App. 231, 223 S.E.2d 835, 1976 N.C. App. LEXIS 2450 (1976); State v. Periman, 32 N.C. App. 33, 230 S.E.2d 802, 1977 N.C. App. LEXIS 1853 (1977); State v. Jones, 291 N.C. 681 , 231 S.E.2d 252, 1977 N.C. LEXIS 1233 (1977); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Hodges, 296 N.C. 66 , 249 S.E.2d 371, 1978 N.C. LEXIS 1160 (1978); State v. Fleming, 296 N.C. 559 , 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979); State v. Rogers, 299 N.C. 597 , 264 S.E.2d 89, 1980 N.C. LEXIS 988 (1980); State v. Brown, 300 N.C. 731 , 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980); State v. Jenkins, 300 N.C. 578 , 268 S.E.2d 458, 1980 N.C. LEXIS 1117 (1980); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981); State v. Simpson, 303 N.C. 439 , 279 S.E.2d 542, 1981 N.C. LEXIS 1180 (1981); State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Marshall, 304 N.C. 167 , 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Cooke, 306 N.C. 117 , 291 S.E.2d 649, 1982 N.C. LEXIS 1373 (1982); State v. Robbins, 309 N.C. 771 , 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985); State v. Head, 79 N.C. App. 1, 338 S.E.2d 908, 1986 N.C. App. LEXIS 1991 (1986); State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

The unlawful killing of a human being with malice but without premeditation and deliberation is murder in the second degree. State v. Geddie, 345 N.C. 73 , 478 S.E.2d 146, 1996 N.C. LEXIS 649 (1996).

Nor Is Intent to Kill. —

A specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first degree murder, is not an element of second degree murder or manslaughter. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965); State v. Meadows, 272 N.C. 327 , 158 S.E.2d 638, 1968 N.C. LEXIS 659 (1968); State v. Mercer, 275 N.C. 108 , 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969); State v. Bunn, 283 N.C. 444 , 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. Williams, 288 N.C. 680 , 220 S.E.2d 558, 1975 N.C. LEXIS 1036 (1975); State v. Lester, 289 N.C. 239 , 221 S.E.2d 268, 1976 N.C. LEXIS 1246 (1976); State v. Alston, 295 N.C. 629 , 247 S.E.2d 898, 1978 N.C. LEXIS 1076 (1978).

For a conviction of second-degree murder the jury need not find specific intent to kill. State v. Page, 346 N.C. 689 , 488 S.E.2d 225, 1997 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (1998).

In a case in which defendant appealed her conviction for second-degree murder, arguing that there was insufficient evidence that she committed an intentional act aimed at harming someone and no evidence that defendant aimed the car at anyone, since the State was not required to show that defendant had a conscious, direct purpose to do specific harm or damage, or had a specific intent to kill, defendant’s argument, that the evidence failed to show a specific intent to harm any particular person, was irrelevant to the court’s determination of the sufficiency of the evidence of second-degree murder. State v. Neville, 202 N.C. App. 121, 688 S.E.2d 76, 2010 N.C. App. LEXIS 89 (2010).

But Some Intentional Act Must Be in Chain of Causation. —

The specific intent to kill is not an essential element of either second degree murder or involuntary manslaughter; however, neither crime exists in the absence of some intentional act in the chain of causation leading to death. State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985).

A conviction under this section was supported by evidence that defendant and the victim were embroiled in a tempestuous relationship; that the defendant and the victim had words the night of the shooting, and she tried to leave him; that he followed her with a high-powered rifle and fired a shot at her legs to frighten her; that they returned to the house and continued arguing; that defendant then pointed the rifle at the victim or in her direction and fired; and that he realized she was hit but had not intended to kill her. State v. Lathan, 138 N.C. App. 234, 530 S.E.2d 615, 2000 N.C. App. LEXIS 603 (2000).

As an intent to inflict a wound which produces a homicide is an essential element of murder in the second degree. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965); State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

State Must Prove That Defendant Intentionally Inflicted the Fatal Wound. —

To convict a defendant of murder in the second degree, the State must prove that the defendant intentionally inflicted the wound which caused the death of the deceased. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

If upon a consideration of all the testimony, including the testimony of the defendant, the jury is not satisfied beyond a reasonable doubt that the defendant intentionally killed the deceased, it should return a verdict of not guilty of murder in the second degree. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

Defendant’s Act Was a Proximate Cause of Death. —

To warrant a conviction for homicide the State must establish that the act of the accused was a proximate cause of the death. State v. Jones, 290 N.C. 292 , 225 S.E.2d 549, 1976 N.C. LEXIS 1058 (1976).

Since proximate cause is an element of second-degree murder and manslaughter. State v. Sherrill, 28 N.C. App. 311, 220 S.E.2d 822, 1976 N.C. App. LEXIS 2672 (1976).

But foreseeability is not an element of proximate cause in a homicide case where an intentionally inflicted wound caused the victim’s death. State v. Wrenn, 279 N.C. 676 , 185 S.E.2d 129, 1971 N.C. LEXIS 909 (1971).

And Culpable Negligence May Support a Conviction. —

Culpable negligence from which death proximately ensues makes the actor guilty of manslaughter, and under some circumstances guilty of murder. State v. Colson, 262 N.C. 506 , 138 S.E.2d 121, 1964 N.C. LEXIS 680 (1964).

If the State is unable to prove an intentional shooting, no presumption of malice arises, and thus, in order to convict defendant of unlawful homicide, the State had to satisfy the jury beyond a reasonable doubt that defendant’s culpable negligence proximately caused the death of his wife. Otherwise, defendant would be entitled to an acquittal. State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969).

Both involuntary manslaughter and second-degree murder can involve an act of “culpable negligence” that proximately causes death. Culpable negligence, standing alone, will support at most involuntary manslaughter. When, however, an act of culpable negligence also imports danger to another and is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life, it will support a conviction for second-degree murder. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

What Is Malice. —

Malice is that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse or justification. State v. Benson, 183 N.C. 795 , 111 S.E. 869, 1922 N.C. LEXIS 373 (1922); State v. Tilley, 18 N.C. App. 300, 196 S.E.2d 816, 1973 N.C. App. LEXIS 1843 (1973); State v. Fleming, 296 N.C. 559 , 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979); State v. Robbins, 309 N.C. 771 , 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

Malice is not only hatred, ill will, or spite, as it is ordinarily understood — to be sure that is malice — but it also means that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse or justification. State v. Foust, 258 N.C. 453 , 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963); State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969); State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132, 1970 N.C. App. LEXIS 1519 (1970); State v. Patterson, 288 N.C. 553 , 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976); State v. Cousins, 289 N.C. 540 , 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Fleming, 296 N.C. 559 , 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979); State v. Myers, 299 N.C. 671 , 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980).

Malice exists as a matter of law whenever there has been unlawful and intentional homicide without excuse or mitigating circumstance. State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969); State v. Patterson, 288 N.C. 553 , 220 S.E.2d 600, 1975 N.C. LEXIS 1031 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4216 (1976); State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978); State v. Fleming, 296 N.C. 559 , 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979).

Any act evidencing wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person, is sufficient to supply the malice necessary for second-degree murder. Such an act will always be accompanied by a general intent to do the act itself, but it need not be accompanied by a specific intent to accomplish any particular purpose or to do any particular thing. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Lang, 309 N.C. 512 , 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983).

If Malice Is Shown. —

Since the distinction between manslaughter and murder in the second-degree is malice, culpable negligence will not support a murder charge unless there are sufficient facts to support a finding of malice. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

In a legal sense, malice is not restricted to spite or enmity toward a particular person. It also denotes a wrongful act intentionally done without just cause or excuse. State v. Jenkins, 300 N.C. 578 , 268 S.E.2d 458, 1980 N.C. LEXIS 1117 (1980); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985).

Malice May Be Express or Implied. —

Malice as an essential characteristic of the crime of murder in the second degree may be either express or implied. State v. Foust, 258 N.C. 453 , 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963).

Express Malice Is Not Required. —

But it is not necessary to a conviction for murder that the State prove express malice. State v. McDowell, 145 N.C. 563 , 59 S.E. 690, 1907 N.C. LEXIS 332 (1907).

Evidence was sufficient to sustain defendant’s conviction for murder by starvation because the act of starving another person to death, without more, sufficed to show malice; defendant proximately caused the child’s death by intentionally depriving him of needed hydration and nutrition, a showing that amply supported the trial court’s decision. State v. Cheeks, 2021-NCSC-69, 377 N.C. 528 , 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

Malice may be implied from the acts of defendant. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

The manner of the killing by defendant, his acts and conduct attending its commission, and his declaration immediately connected therewith were evidence of express malice. State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961).

And from Circumstances Other Than Use of Deadly Weapon. —

Malice may be implied from circumstances other than the use of a deadly weapon. State v. Periman, 32 N.C. App. 33, 230 S.E.2d 802, 1977 N.C. App. LEXIS 1853 (1977).

Malice may be shown by evidence of hatred, ill will, or dislike. State v. Foust, 258 N.C. 453 , 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963).

Any unseemly conduct toward the corpse of the person slain or any indignity offered it by the slayer should go to the jury on the question of malice. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Inference of Malice from Death Ensuing from Attack Made with Hands and Feet Only. —

Ordinarily if death ensues from an attack made with hands and feet only, on a person of mature years and full health and strength, the law would not imply the malice required to make the homicide second-degree murder, because ordinarily death would not be caused by the use of such means. The inference would be quite different, however, if the same assault were committed upon an infant of tender years or upon a person enfeebled by old age, sickness, or other apparent physical disability. State v. Sallie, 13 N.C. App. 499, 186 S.E.2d 667, 1972 N.C. App. LEXIS 2273 , cert. denied, 281 N.C. 316 , 188 S.E.2d 900, 1972 N.C. LEXIS 1075 (1972); State v. Lang, 309 N.C. 512 , 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983).

Whether an attack made with hands or feet alone which proximately causes death gives rise to either a presumption of malice as a matter of law or to an inference of malice as a matter of fact will depend upon the facts of the particular case. State v. Lang, 309 N.C. 512 , 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983).

The fact that a defendant struck a person with his hand or kicked a person and proximately caused that person’s death would not support either a presumption of malice as a matter of law or an inference of malice as a matter of fact unless the defendant was then using his hands or feet as deadly weapons. State v. Lang, 309 N.C. 512 , 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983).

Nothing else appearing, the trial court properly could instruct the jury that, should they find the defendant used his hands or feet as deadly weapons and intentionally inflicted a wound upon the deceased proximately causing his death, the law presumes that the killing was unlawful and done with malice. State v. Lang, 309 N.C. 512 , 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983).

Malice Shown with Shaken Baby Syndrome. —

The State presented substantial evidence that the defendant acted with malice in a prosecution for second-degree murder in the death of his two-month old son, where there was evidence of shaken child syndrome, and medical testimony also indicated that the defendant previously had inflicted a severe blow to the baby’s head. State v. Qualls, 130 N.C. App. 1, 502 S.E.2d 31, 1998 N.C. App. LEXIS 846 (1998), aff'd, 350 N.C. 56 , 510 S.E.2d 376, 1999 N.C. LEXIS 2 (1999).

Inference of Malice from Circumstances Surrounding Killing. —

Malice sufficient to support a conviction of second-degree murder may be proven by inference from circumstances surrounding the killing. State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844, 1987 N.C. App. LEXIS 2638 (1987).

Evidence that defendant, with a history of driving at speeds far in excess of speed limits, entered a sharp curve with a speed limit of 35 mph at more than 70 mph, while under the influence of alcohol, and collided head-on with a vehicle and caused the deaths of two persons supported the jury’s finding of malice. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441, 1999 N.C. App. LEXIS 193 (1999), aff'd, 351 N.C. 386 , 527 S.E.2d 299, 2000 N.C. LEXIS 239 (2000).

Evidence which showed that defendant and defendant’s girlfriend had been drinking heavily before they decided to purchase more alcohol, that defendant decided to drive even though defendant’s license was permanently revoked and defendant was impaired, and that defendant lost control of a car and that defendant’s girlfriend died in the ensuing accident supported jury’s findings that defendant’s actions demonstrated malice necessary to establish second-degree murder. State v. Vassey, 154 N.C. App. 384, 572 S.E.2d 248, 2002 N.C. App. LEXIS 1460 (2002), cert. denied, 357 N.C. 469 , 587 S.E.2d 339, 2003 N.C. LEXIS 932 (2003).

Defendant’s conviction for second-degree murder was upheld on appeal, because defendant failed to show any prejudice with regard to the trial court’s admission of a gun residue test over defendant’s objection, because defendant did not object to the admission of any statements made during the test, only the test results itself, and the trial court’s finding that exigent circumstances existed was supported by the evidence in that the test had to have been administered within a few hours of the shooting and defendant admitted he was one of the last to have seen the victim alive. State v. Page, 169 N.C. App. 127, 609 S.E.2d 432, 2005 N.C. App. LEXIS 514 (2005).

Substantial evidence existed to demonstrate the type of malice manifesting a mind utterly without regard for human life and social duty which would support a second degree murder conviction where the defendant operated his automobile with a high degree of alcohol in his blood and where, during the 16.7-mile chase, defendant ran both a stop sign and a red stop light, passing stopped traffic at speeds of 90-95 m.p.h. State v. Fuller, 138 N.C. App. 481, 531 S.E.2d 861, 2000 N.C. App. LEXIS 632 (2000).

Presumptions of Unlawfulness and Malice from Killing with Deadly Weapon. —

When a killing resulting from the intentional use of a deadly weapon is established, two presumptions arise: (1) that the killing was unlawful, and (2) that it was done with malice. State v. Adams, 241 N.C. 559 , 85 S.E.2d 918, 1955 N.C. LEXIS 409 (1955); State v. Revis, 253 N.C. 50 , 116 S.E.2d 171, 1960 N.C. LEXIS 456 (1960); State v. Todd, 264 N.C. 524 , 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965); State v. Propst, 274 N.C. 62 , 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976); State v. Mercer, 275 N.C. 108 , 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969); State v. Jennings, 276 N.C. 157 , 171 S.E.2d 447, 1970 N.C. LEXIS 649 (1970); State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132, 1970 N.C. App. LEXIS 1519 (1970); State v. Reams, 277 N.C. 391 , 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971); State v. Crump, 277 N.C. 573 , 178 S.E.2d 366, 1971 N.C. LEXIS 1054 (1971); State v. Boyd, 278 N.C. 682 , 180 S.E.2d 794, 1971 N.C. LEXIS 1023 (1971); State v. Winford, 279 N.C. 58 , 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971); State v. Parker, 279 N.C. 168 , 181 S.E.2d 432, 1971 N.C. LEXIS 763 (1971), cert. denied, 409 U.S. 987, 93 S. Ct. 342, 34 L. Ed. 2d 253, 1972 U.S. LEXIS 853 (1972); State v. McIlwain, 279 N.C. 469 , 183 S.E.2d 538, 1971 N.C. LEXIS 849 (1971); State v. Wrenn, 279 N.C. 676 , 185 S.E.2d 129, 1971 N.C. LEXIS 909 (1971); State v. Cannady, 17 N.C. App. 569, 192 S.E.2d 677 (1972); State v. Lea, 17 N.C. App. 71, 193 S.E.2d 383, 1972 N.C. App. LEXIS 1566 (1972), cert. denied, 282 N.C. 674 , 194 S.E.2d 154, 1973 N.C. LEXIS 1147 (1973); State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63, 1973 N.C. App. LEXIS 1343 , cert. denied, 283 N.C. 106 , 194 S.E.2d 634, 1973 N.C. LEXIS 910 (1973); State v. Oxendine, 24 N.C. App. 444, 210 S.E.2d 908, 1975 N.C. App. LEXIS 2400 , cert. denied, 287 N.C. 667 , 216 S.E.2d 910, 1975 N.C. LEXIS 1186 (1975); State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976); State v. McCall, 289 N.C. 512 , 223 S.E.2d 303, 1976 N.C. LEXIS 1327 , vacated in part, 429 U.S. 912, 97 S. Ct. 301, 50 L. Ed. 2d 278, 1976 U.S. LEXIS 3242 (1976); State v. Chavis, 30 N.C. App. 75, 226 S.E.2d 389, 1976 N.C. App. LEXIS 2149 , cert. denied, 290 N.C. 778 , 229 S.E.2d 33, 1976 N.C. LEXIS 1203 (1976); State v. Lee, 292 N.C. 617 , 234 S.E.2d 574, 1977 N.C. LEXIS 1144 (1977); State v. Myers, 299 N.C. 671 , 263 S.E.2d 768, 1980 N.C. LEXIS 996 (1980); State v. Lang, 309 N.C. 512 , 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983); State v. Robbins, 309 N.C. 771 , 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983).

Intentional killing of a human being with a deadly weapon implies malice. State v. McDowell, 145 N.C. 563 , 59 S.E. 690, 1907 N.C. LEXIS 332 (1907); State v. Brinkley, 183 N.C. 720 , 110 S.E. 783, 1922 N.C. LEXIS 350 (1922); State v. Pasour, 183 N.C. 793 , 111 S.E. 779, 1922 N.C. LEXIS 372 (1922); State v. Payne, 213 N.C. 719 , 197 S.E. 573, 1938 N.C. LEXIS 184 (1938); State v. Hawkins, 214 N.C. 326 , 199 S.E. 284, 1938 N.C. LEXIS 339 (1938); State v. Bright, 215 N.C. 537 , 2 S.E.2d 541, 1939 N.C. LEXIS 304 (1939); State v. Chavis, 231 N.C. 307 , 56 S.E.2d 678, 1949 N.C. LEXIS 533 (1949); State v. Lamm, 232 N.C. 402 , 61 S.E.2d 188, 1950 N.C. LEXIS 542 (1950); State v. Brown, 249 N.C. 271 , 106 S.E.2d 232, 1958 N.C. LEXIS 472 (1958); State v. Downey, 253 N.C. 348 , 117 S.E.2d 39, 1960 N.C. LEXIS 663 (1960); State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961); State v. Foust, 258 N.C. 453 , 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531, 1969 N.C. App. LEXIS 1227 (1969); State v. Hutchins, 303 N.C. 321 , 279 S.E.2d 788, 1981 N.C. LEXIS 1186 (1981).

At common law, the intentional killing of a human being with a deadly weapon, nothing more appearing, was murder, malice being presumed from the facts. State v. Rhyne, 124 N.C. 847 , 33 S.E. 128, 1899 N.C. LEXIS 132 (1899).

The common-law rule has been followed and it is now also presumed that a killing with a deadly weapon is unlawful and malicious. State v. Benson, 183 N.C. 795 , 111 S.E. 869, 1922 N.C. LEXIS 373 (1922); State v. Walker, 193 N.C. 489 , 137 S.E. 429, 1927 N.C. LEXIS 386 (1927).

A presumption of malice arises when one intentionally assaults another with a deadly weapon and thereby proximately causes his death. State v. Goins, 24 N.C. App. 468, 211 S.E.2d 481, 1975 N.C. App. LEXIS 2406 , cert. denied, 287 N.C. 262 , 214 S.E.2d 434, 1975 N.C. LEXIS 1106 (1975).

For Such Presumptions to Apply Intent Must Be Shown. —

The presumptions that a homicide was unlawful and done with malice do not arise against the slayer in a prosecution for homicide, unless he admits, or the State proves, that he intentionally killed the deceased with a deadly weapon. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

For the presumptions of malice and unlawfulness to arise from a killing with a deadly weapon, the defendant must admit or the State must prove beyond a reasonable doubt that the killing was intentional. State v. Barnwell, 17 N.C. App. 299, 194 S.E.2d 63, 1973 N.C. App. LEXIS 1343 , cert. denied, 283 N.C. 106 , 194 S.E.2d 634, 1973 N.C. LEXIS 910 (1973).

But Intent Need Not Be to Kill. —

The expression “intentional killing” is not used in the sense that a specific intent to kill must be admitted or established. The sense of the expression is that the presumptions arise when the defendant intentionally assaults another with a deadly weapon and thereby proximately causes the death of the person assaulted. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

Intent Must Be to Use Deadly Weapon as a Weapon. —

The intentional use of a deadly weapon as a weapon is necessary to give rise to presumptions of unlawfulness and of malice. State v. Propst, 274 N.C. 62 , 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

It is error for the trial court to instruct the jury that once a killing is proven to have been done with a deadly weapon the law presumes malice, since in order for a presumption of malice to arise, it has to be established or admitted that the defendant intentionally used a deadly weapon as a weapon and inflicted wounds proximately resulting in death. State v. Drake, 8 N.C. App. 214, 174 S.E.2d 132, 1970 N.C. App. LEXIS 1519 (1970).

The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions. The presumptions do not arise if an instrument, which is or may be a deadly weapon, is not intentionally used as a weapon, e.g., from an accidental discharge of a shotgun. State v. Winford, 279 N.C. 58 , 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971); State v. Duboise, 279 N.C. 73 , 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971).

Intent to Inflict a Wound. —

Malice, as one of the essential elements of murder in the second degree, is not presumed merely by the pointing of a gun or pistol at another person in fun in violation of G.S. 14-34 . In order for this presumption of malice to arise from an assault with a deadly weapon, there must be an intent to inflict a wound with such weapon which produces death. State v. Currie, 7 N.C. App. 439, 173 S.E.2d 49, 1970 N.C. App. LEXIS 1708 (1970).

Felonious Intent to Commit Second-Degree Murder Is Logical Impossibility. —

The trial judge erroneously submitted second-degree murder as the intended felony for first-degree burglary; because second-degree murder does not involve the intent to kill, it cannot serve as the felonious intent element for purposes of burglary. Just as attempted second-degree murder is a logical impossibility, so too is the felonious intent to commit second-degree murder. State v. Van Jordan, 140 N.C. App. 594, 537 S.E.2d 843, 2000 N.C. App. LEXIS 1246 (2000).

Effect of Mental Illness and Alcoholism on Presumption of Malice. —

In a second degree murder case, evidence of a defendant’s mental illness and alcoholism will not rebut the presumption of malice where the killing was accomplished by the intentional use of a deadly weapon so as to entitle defendant to a jury instruction on the lesser-included offense of voluntary manslaughter. State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338, 1987 N.C. App. LEXIS 2571 (1987).

Diminished Capacity Irrelevant. —

Trial court properly refused to instruct jury to consider diminished capacity when it deliberated whether to convict defendant of second-degree murder. State v. Page, 346 N.C. 689 , 488 S.E.2d 225, 1997 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (1998).

Instruction Warranted. —

Where defendant had been drinking heavily and smoking crack cocaine for several hours, it was possible for a trier of fact to find that he lacked the requisite state of mind — that is, the necessary specific intent of premeditation and deliberation — for first degree murder, and the trial court’s instruction of second degree murder was, therefore, proper. State v. Brooks, 136 N.C. App. 124, 523 S.E.2d 704, 1999 N.C. App. LEXIS 1309 (1999).

Error in Instructing on Presumption of Malice Absent Use of Deadly Weapon. —

The trial court in a homicide prosecution erred in instructing the jury to presume the existence of malice if they found that the victim’s death was intentionally caused where there was no evidence of the use of a deadly weapon, since malice is presumed only where death resulted from the intentional use of a deadly weapon. State v. Tilley, 18 N.C. App. 300, 196 S.E.2d 816 (1973). But see State v. Lang, 309 N.C. 512 , 308 S.E.2d 317 (1983) as to use of hands and feet as deadly weapons.

Error in Instructing on Presumption of Malice. —

In light of the fact that the trial court (1) repeatedly instructed the jury that they had to find that the defendant acted with malice in order to find him guilty of second-degree murder, and (2) instructed the jury that if the State failed to prove the defendant acted with malice, then the defendant could be guilty of no more than voluntary manslaughter, the court’s misstatement in the final mandate that second-degree murder was killing without malice did not constitute plain error. State v. Jones, 83 N.C. App. 593, 351 S.E.2d 122, 1986 N.C. App. LEXIS 2745 (1986).

Instruction as to Presumptions of Malice and Unlawfulness Shifts Burden of Production to Defendant. —

Instruction that if the State proved beyond a reasonable doubt that the defendant intentionally killed victim with a deadly weapon, or that he intentionally inflicted a wound upon her with a deadly weapon that proximately caused her death, then the law implied, first, that the killing was unlawful, and secondly, that it was done with malice, did not impermissibly shift the burden of proof to defendant but merely shifted the burden of production. And a state may legitimately shift a burden of production on an element of the crime to the defendant, so long as the presumed fact is rationally connected to a proven fact. Rook v. Rice, 783 F.2d 401, 1986 U.S. App. LEXIS 22069 (4th Cir.), cert. denied, 478 U.S. 1022, 106 S. Ct. 3315, 92 L. Ed. 2d 745, 1986 U.S. LEXIS 2868 (1986).

Jury Instruction Regarding “Bent on Mischief.” —

The portion of a jury instruction defining “deliberately bent on mischief” correctly conveyed to the jury that it could infer malice if it found that defendant’s acts manifested depravity of mind and disregard of human life. State v. Rich, 132 N.C. App. 440, 512 S.E.2d 441, 1999 N.C. App. LEXIS 193 (1999), aff'd, 351 N.C. 386 , 527 S.E.2d 299, 2000 N.C. LEXIS 239 (2000).

No Evidence to Warrant Instruction on Second-Degree Murder. —

Where the jury returned a verdict that defendant was guilty of first-degree murder under the felony-murder rule and not of premeditated and deliberated murder, no evidence in the record warranted submission of an instruction on second-degree murder. State v. Oliver, 334 N.C. 513 , 434 S.E.2d 202, 1993 N.C. LEXIS 391 (1993).

Because defendant did not provide evidence negating premeditation and deliberation other than his denial that he committed the offense, defendant was not entitled to an instruction on second-degree murder. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802, 2013 N.C. App. LEXIS 69 (2013).

Jury Question Warranted. —

Sufficient evidence was found to allow the issue of defendant’s guilt of second-degree murder to be submitted to the jury. State v. Hester, 111 N.C. App. 110, 432 S.E.2d 171, 1993 N.C. App. LEXIS 698 (1993).

Trial court did not err in submitting the second-degree murder charge to the jury as substantial evidence supported the element of malice by reckless disregard for human life because defendant was driving while his license was revoked both for prior DWI and non-DWI offenses; defendant was driving at a speed that was irresponsible late at night when the road conditions were icy; defendant lost control of his vehicle and hit the guard rail, the tow truck, and the victim; and the collision was so severe that it ripped the front bumper from his car, cracked the windshield, broke the headlights, and deployed the airbags, but defendant did not try to ascertain if anyone was harmed or attempt to render assistance of any sort. State v. Nazzal, 270 N.C. App. 345, 840 S.E.2d 881, 2020 N.C. App. LEXIS 166 (2020).

Constitutionality of Presumptions of Malice and Unlawfulness. —

Under the decision of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), the due process clause of U.S. Const., Amend. XIV prohibits the use of our long-standing rules in homicide cases that, in order to rebut the presumption of malice, defendant must prove to the satisfaction of the jury that he killed in the heat of a sudden passion, and that in order to rebut the presumption of unlawfulness, defendant must prove to the satisfaction of the jury that he killed in self-defense. State v. Hankerson, 288 N.C. 632 , 220 S.E.2d 575, 1975 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977).

The Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) decision does not preclude use of the presumptions of malice and unlawfulness upon proof beyond a reasonable doubt of a killing by the intentional use of a deadly weapon; nor does it prohibit making the presumptions mandatory in the absence of contrary evidence or permitting the logical inferences from facts proved to remain and be weighed against contrary evidence if it is produced. State v. Hankerson, 288 N.C. 632 , 220 S.E.2d 575, 1975 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977).

The presumptions of unlawfulness and malice arising from an intentional assault with a deadly weapon proximately resulting in death are constitutional. State v. Lester, 289 N.C. 239 , 221 S.E.2d 268, 1976 N.C. LEXIS 1246 (1976); State v. Biggs, 292 N.C. 328 , 233 S.E.2d 512, 1977 N.C. LEXIS 1093 (1977).

Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) does not apply to the presumption of malice created when the State proves beyond a reasonable doubt that the accused intentionally inflicted a wound with a deadly weapon proximately causing death. State v. Johnson, 28 N.C. App. 265, 220 S.E.2d 834, 1976 N.C. App. LEXIS 2661 , cert. denied, 289 N.C. 454 , 223 S.E.2d 162, 1976 N.C. LEXIS 1314 (1976).

The ruling of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975) does not preclude all use of traditional presumptions of malice and unlawfulness. It precludes only utilizing them in such a way as to relieve the State of the burden of proof on these elements when the issue of their existence is raised by the evidence. The presumptions themselves, standing alone, are valid and constitutional. State v. Biggs, 292 N.C. 328 , 233 S.E.2d 512, 1977 N.C. LEXIS 1093 (1977).

Requiring defendant to rebut the presumption of malice flowing from state’s proof of the intentional infliction of a wound upon the deceased with a deadly weapon, proximately resulting in death, does not violate Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), since the presumption persists only in the absence of evidence to the contrary, and evidence raising an issue on the existence of malice and unlawfulness causes the presumption to disappear, leaving only a permissible inference which the jury may accept or reject. State v. Weeks, 322 N.C. 152 , 367 S.E.2d 895, 1988 N.C. LEXIS 239 (1988).

Such Presumptions Are Mandatory. —

In a homicide case, in the absence of evidence of a killing in the heat of passion and the absence of evidence of self-defense, proof of the intentional infliction of a wound raises not mere permissible inferences but mandatory presumptions of the existence of malice and unlawfulness entitling the State at least to a conviction of murder in the second degree. State v. Patterson, 297 N.C. 247 , 254 S.E.2d 604, 1979 N.C. LEXIS 1247 (1979).

But Not Irrebuttable. —

An instruction to the jury that the law implies malice and unlawfulness from the intentional use of a deadly weapon proximately resulting in death is not a conclusive, irrebuttable presumption. The presumption is mandatory in that defendant, to avoid its effect, must produce some evidence raising an issue on the existence of malice and unlawfulness or rely on such evidence as the State may have adduced. In the presence of evidence raising such issues, the presumption disappears altogether, leaving only a permissible inference which the jury may accept or reject. State v. Reynolds, 307 N.C. 184 , 297 S.E.2d 532, 1982 N.C. LEXIS 1667 (1982).

Where all the evidence tends to show that defendant intentionally inflicted a wound with a deadly weapon which caused deceased’s death, such evidence raises inferences of an unlawful killing with malice which are sufficient to permit, but not require, the jury to return a verdict of murder in the second degree. State v. Hodges, 296 N.C. 66 , 249 S.E.2d 371, 1978 N.C. LEXIS 1160 (1978).

Presumption of Malice Disappears Where Evidence Shows Self-Defense or Provocation. —

When there is some evidence justifying an instruction concerning self-defense or heat of passion killing upon sudden provocation, any presumption of malice arising from a finding that defendant intentionally inflicted the wounds with a deadly weapon disappears, leaving only a permissible inference which the jury may accept or reject. State v. Bondurant, 309 N.C. 674 , 309 S.E.2d 170, 1983 N.C. LEXIS 1454 (1983).

Whether there is evidence in the case from which a jury could find a killing in the heat of passion or self-defense so that the mandatory presumptions are transformed into permissible inferences depends largely on the quantum of the evidence rather than its quality or credibility. This is a question for the court, not the jury. No instructions on this principle should be given to the jury. State v. Patterson, 297 N.C. 247 , 254 S.E.2d 604, 1979 N.C. LEXIS 1247 (1979).

Where defendant produced evidence from which the jury could have found that he killed in the heat of passion suddenly aroused or that he killed in self-defense, the State was not entitled to the benefit of mandatory presumptions of malice and unlawfulness. It was entitled at most to the benefit of permissible inferences that these elements existed if the jury should find it had proved beyond a reasonable doubt defendant’s intentional infliction of a wound with a deadly weapon resulting in death. These permissible inferences placed no burden upon defendant to rebut them by raising a reasonable doubt as to the existence of the inferred elements. It was error to so instruct the jury. State v. Patterson, 297 N.C. 247 , 254 S.E.2d 604, 1979 N.C. LEXIS 1247 (1979); State v. Lang, 309 N.C. 512 , 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983).

But Logical Inferences May Be Weighed Against the Evidence. —

If there is evidence of provocation or self-defense, the mandatory presumptions of malice and unlawfulness disappear, but the logical inferences from the facts proved may be weighed against the evidence. State v. Hankerson, 288 N.C. 632 , 220 S.E.2d 575, 1975 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977); State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406, 1980 N.C. App. LEXIS 2919 (1980).

Evidence of self-defense or of killing in a heat of passion upon sudden provocation are matters of excuse and mitigation, which should be weighed against the raised inferences of unlawfulness and malice. State v. Hodges, 296 N.C. 66 , 249 S.E.2d 371, 1978 N.C. LEXIS 1160 (1978).

Instruction as to Presumptions Absent Evidence of Passion, Provocation, or Self-Defense. —

If, after the mandatory presumptions as to the unlawfulness of the killing and as to malice arise, there is no evidence that the killing was in the heat of passion on sudden provocation or in self-defense, the law requires that the jury be instructed that the defendant must be convicted of murder in the second degree. State v. Lang, 309 N.C. 512 , 308 S.E.2d 317, 1983 N.C. LEXIS 1447 (1983).

Self-Serving Declarations Not Sufficient to Rebut Presumption. —

In prosecution for second-degree murder, where there was no evidence of just cause or reasonable provocation nor evidence of self-defense, unavoidable accident or misadventure, defendant’s self-serving declarations alone were not sufficient to rebut the presumption of malice arising in the case. State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515, 1975 N.C. App. LEXIS 2413 (1975).

State’s Burden of Proof. —

In offering evidence of “all other kinds of murder” as that phrase is employed in the second sentence of this section, the State must bear the burden of proving that the killing was intentional, unlawful and done with malice aforethought, even though it may have been proximately caused by the unlawful distribution of controlled substances or proximately caused by the commission or the attempted commission of any felony not specified in the first sentence of this section and without the use of a deadly weapon. State v. Davis, 305 N.C. 400 , 290 S.E.2d 574, 1982 N.C. LEXIS 1348 (1982).

If the State is to carry its burden of proof on a charge of murder in cases in which a killing occurs during the commission of a felony committed or attempted without the use of a deadly weapon and not one of the felonies specified in this section, it must show that the killing was murder as at common law by proof beyond a reasonable doubt that it was an intentional and unlawful killing with malice aforethought. In such cases the State will have borne the burden of proof necessary to sustain a conviction of murder in the second degree. If the State additionally can prove beyond a reasonable doubt that the murder was premeditated and deliberate, it will have borne its burden of proving the offense was murder in the first degree. State v. Davis, 305 N.C. 400 , 290 S.E.2d 574, 1982 N.C. LEXIS 1348 (1982).

In a prosecution for unlawful homicide, the burden is always upon the State to prove an unlawful slaying. State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969).

State Must Prove Each Element of the Crime. —

The State must bear the burden throughout the trial of proving each element of the crime charged, including, where applicable, malice and unlawfulness beyond a reasonable doubt. State v. Hankerson, 288 N.C. 632 , 220 S.E.2d 575, 1975 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977).

But the State is not required to prove malice and unlawfulness unless there is some evidence of their nonexistence. State v. Pinch, 306 N.C. 1 , 292 S.E.2d 203, 1982 N.C. LEXIS 1386 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982), writ denied, 366 S.E.2d 868, 1988 N.C. LEXIS 183 (N.C. 1988); State v. Robinson, 336 N.C. 78 , 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), cert. denied, 513 U.S. 1089, 115 S. Ct. 750, 130 L. Ed. 2d 650, 1995 U.S. LEXIS 276 (1995); State v. Rouse, 339 N.C. 59 , 451 S.E.2d 543, 1994 N.C. LEXIS 7 19 (1994), cert. denied, 516 U.S. 832, 116 S. Ct. 107, 133 L. Ed. 2d 60, 1995 U.S. LEXIS 5654 (1995), overruled in part, State v. Hurst, 360 N.C. 181 , 624 S.E.2d 309, 2006 N.C. LEXIS 7 (2006).

State need not prove malice and unlawfulness unless there is some evidence of their nonexistence, but once such evidence is presented, the State must prove these elements beyond a reasonable doubt. State v. Bondurant, 309 N.C. 674 , 309 S.E.2d 170, 1983 N.C. LEXIS 1454 (1983).

Such as Heat of Passion. —

When there is some evidence of heat of passion on sudden provocation, which negates malice, then in order to prove the existence of malice the State must prove the absence of heat of passion beyond a reasonable doubt. State v. Bush, 307 N.C. 152 , 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

Defendant’s Burden Is to Produce Some Evidence of Their Nonexistence. —

In a murder prosecution, defendant has no burden to produce evidence sufficient to raise a reasonable doubt as to the existence of malice or unlawfulness. His burden is simply to produce some evidence from which a jury could find the nonexistence of these elements, i.e., to produce some evidence of a killing in the heat of passion or some evidence of self-defense from which a jury could find the existence of these things. Upon production of such evidence, the burden is upon the State to prove beyond a reasonable doubt the existence of malice and the absence of self defense. State v. Patterson, 297 N.C. 247 , 254 S.E.2d 604, 1979 N.C. LEXIS 1247 (1979).

As Defendant Has No Burden to Raise Reasonable Doubt. —

The question whether evidence is sufficient to raise a reasonable doubt is always for the jury under proper instructions from the court. The instructions should, however, be put in terms of the State’s burden to prove every element beyond a reasonable doubt, not defendant’s burden to raise a reasonable doubt, since defendant has no such burden. State v. Patterson, 297 N.C. 247 , 254 S.E.2d 604, 1979 N.C. LEXIS 1247 (1979).

Instructions Placing Burden on Defendant to Prove Lesser Offense or Justification Are Improper. —

Instructions placing the burden on defendant (1) to show circumstances that would reduce the offense from second-degree murder to manslaughter and (2) to justify the killing on ground of self-defense were erroneous in view of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508, 1975 U.S. LEXIS 70 (1975) and State v. Hankerson, 288 N.C. 632 , 220 S.E.2d 575, 1975 N.C. LEXIS 1034 (1975), rev'd, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977); State v. McLaurin, 33 N.C. App. 589, 235 S.E.2d 871, 1977 N.C. App. LEXIS 2257 (1977).

An instruction placing the burden on petitioner to satisfy the jury of the absence of malice, or that the killing was committed in self-defense, is constitutional error unless the court should find that there was no evidence to support verdicts of either manslaughter or not guilty, or the instruction was otherwise harmless error beyond a reasonable doubt. Gardner v. Forister, 468 F. Supp. 761, 1979 U.S. Dist. LEXIS 13170 (W.D.N.C. 1979).

Murder in Second Degree Is Included in Murder in First Degree. —

If a person is found guilty of murder in the first degree, a fortiori, his guilt encompasses murder in the second degree. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

Manslaughter is a lesser included offense of murder in the second degree. State v. Holcomb, 295 N.C. 608 , 247 S.E.2d 888, 1978 N.C. LEXIS 1073 (1978).

Murder in Second Degree and Manslaughter Distinguished. —

The difference between second-degree murder and manslaughter is that malice, express or implied, is present in the former and not in the latter. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

In order for an accused to reduce the crime of second-degree murder to voluntary manslaughter, he must rely on evidence presented by the State or assume a burden to go forward with or produce evidence of heat of passion on sudden provocation. State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338, 1987 N.C. App. LEXIS 2571 (1987).

Reduction to Manslaughter for Killing in Heat of Passion on Adequate Provocation. —

The crime of second degree murder may be reduced to voluntary manslaughter upon a showing that defendant killed his victim in the heat of passion caused by provocation adequate to negate the element of malice. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

Reduction to Manslaughter Where Self-Defense Is Used. —

Second degree murder may be reduced to voluntary manslaughter if the killing results from the use of excessive force in the exercise of self-defense. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

What Is Excessive Force in Exercise of Self-Defense. —

Excessive force in the exercise of self-defense is that force used by a defendant who honestly believes that he must use deadly force to repel an attack, but whose belief is found by the jury to be unreasonable under the surrounding facts and circumstances. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

Premeditation Negated Second Degree Murder Instruction. —

As the record contained no evidence tending to show any provocation of defendant by the victim and defendant used the same ruse for the purpose of distracting another victim prior to shooting them, the evidence supported a finding of premeditation and deliberation and did not support an inference that defendant formed the intent to kill the victim at the same time that he shot him; thus, defendant was not entitled to a jury instruction as to second degree murder. State v. Wiggins, 210 N.C. App. 128, 707 S.E.2d 664, 2011 N.C. App. LEXIS 340 (2011).

Sentencing. —

Murder in the second degree is a Class C felony and therefore the judge sentencing a defendant who is adjudged guilty of this crime must impose a 15-year term of imprisonment unless aggravating or mitigating factors merit imposition of a longer or shorter term. State v. Melton, 307 N.C. 370 , 298 S.E.2d 673, 1983 N.C. LEXIS 1085 (1983).

Defendant’s aggravated sentence for second degree murder did not violated the ex post facto clauses in N.C. Const., Art. 1, § 16 and U.S. Const., Art. 1, § 10, because the trial court had the authority to use a special verdict for the jury to determine aggravating factors at the time of defendant’s trial. State v. Borges, 183 N.C. App. 240, 644 S.E.2d 250, 2007 N.C. App. LEXIS 1037 (2007), cert. denied, 552 U.S. 1126, 128 S. Ct. 941, 169 L. Ed. 2d 776, 2008 U.S. LEXIS 472 (2008).

No prejudicial error resulted from defendant’s resentencing, in light of Blackwell, as a procedural mechanism existed by which to submit the aggravating factors to the jury, and there was overwhelming and uncontradicted evidence that defendant joined with more than one other person in the commission of the second-degree murder of the victim. State v. Harris, 185 N.C. App. 285, 648 S.E.2d 218, 2007 N.C. App. LEXIS 1708 (2007).

When defendant had been sentenced to life in prison, pursuant to the Fair Sentencing Act (FSA), G.S. 14-1.1 , G.S. 15A-1340.4(f) (repealed) and former G.S. 14-17 , after pleading guilty to second degree murder, it was error to grant defendant’s motion for appropriate relief seeking sentencing pursuant to the Structured Sentencing Act (SSA), G.S. 15A-1340.10 et seq., because (1) the FSA exclusively controlled sentencing for defendant’s crime, since the crime was committed before the effective date of the SSA, (2) the SSA said the SSA did not affect sentences for crimes occurring before the SSA’s effective date and that statutes applied to pre-SSA sentences still applied to those sentences, and (3) an assistant district attorney’s consent to defendant’s sentence’s modification did not render defendant’s illegal sentence unappealable. State v. Whitehead, 365 N.C. 444 , 722 S.E.2d 492, 2012 N.C. LEXIS 124 (2012).

As the trial court sentenced defendant on her conviction for second-degree murder within the presumptive range for her conviction of a Class B2 felony pursuant to G.S. 15A-1340.17(c) and G.S. 14-17 , there was no error in sentencing defendant, as the trial court was not required to make findings of mitigating factors pursuant to G.S. 15A-1340.16(c). State v. Kelly, 221 N.C. App. 643, 727 S.E.2d 912, 2012 N.C. App. LEXIS 880 (2012).

After the jury returned a general verdict finding defendant guilty of second-degree murder, the trial judge did not err in sentencing defendant as a Class B1 felon as there was simply no evidence that supported a finding of depraved-heart malice because no evidence was presented that defendant intended to kill someone other than the victim but slashed his neck by accident as the repeated knife cuts were deliberately aimed at the victim’s neck; defendant never specifically rebutted the theory of deadly weapon implied malice or advanced a depraved-heart malice theory argument; and the evidence presented supported only B1 theories of malice, and the jury was properly instructed only on those theories. State v. Lail, 251 N.C. App. 463, 795 S.E.2d 401, 2016 N.C. App. LEXIS 1356 (2016).

Plain language of this statute that persons convicted of second-degree murder “shall be punished as a Class B1 felon, except,” indicates that the legislature intended to increase the sentence for second-degree murder to Class B1 and to retain Class B2 punishment only where either statutorily defined situation exists. Where no evidence is presented that would support a finding that an accused acted with depraved-heart malice, specification of a malice theory would not provide clarity for sentencing purposes as it would be inferred from a general verdict that the accused was guilty of B1 second-degree murder; thus, this statute does not always require a jury to specify whether the depraved-heart malice theory supported its conviction. State v. Lail, 251 N.C. App. 463, 795 S.E.2d 401, 2016 N.C. App. LEXIS 1356 (2016).

Court of appeals erred in holding that defendant’s stipulation on his sentencing worksheet that a second-degree murder conviction justified a B1 classification was improper because defendant properly stipulated to the facts underlying his conviction and the conviction itself; defendant simply agreed that the facts underlying his second-degree murder conviction fell within the general B1 category, and his factual stipulation then allowed the trial court to properly classify the offense as B1. State v. Arrington, 371 N.C. 518 , 819 S.E.2d 329, 2018 N.C. LEXIS 917 (2018).

Given the consistent definition of second-degree murder and the 2012 amendments, the statute indicates the legislature’s intent to elevate second-degree murder to a B1 offense, except in the two limited factual scenarios when the second-degree murder stems from either an inherently dangerous act or omission or a drug overdose; the legislature distinguishes between second-degree murders that involve an intent to harm versus the less culpable ones that involve recklessness or a drug overdose. State v. Arrington, 371 N.C. 518 , 819 S.E.2d 329, 2018 N.C. LEXIS 917 (2018).

Sentencing — Premeditation and Deliberation as Aggravating Factor. —

The trial court properly used and found ample evidence of premeditation and deliberation as an aggravating factor in second degree murder plan. State v. Brewer, 321 N.C. 284 , 362 S.E.2d 261, 1987 N.C. LEXIS 2560 (1987).

Where a defendant tried for murder in the first degree is found guilty of murder in the second degree, trial court may not find by the preponderance of the evidence that the killing was after premeditation and deliberation and use this finding as an aggravating factor. State v. Marley, 321 N.C. 415 , 364 S.E.2d 133, 1988 N.C. LEXIS 6 (1988).

A trial judge can find as an aggravating factor that the killing was done with premeditation and deliberation when a defendant charged with first degree murder pleads guilty to second degree murder. State v. Marley, 321 N.C. 415 , 364 S.E.2d 133, 1988 N.C. LEXIS 6 (1988).

Where a defendant is convicted on an indictment charging only second degree murder, a determination by the preponderance of the evidence that defendant premeditated and deliberated the killing is reasonably related to the purposes of sentencing. Therefore, a sentencing judge is not barred from using premeditation and deliberation as an aggravating factor in such a case. State v. Vandiver, 326 N.C. 348 , 389 S.E.2d 30, 1990 N.C. LEXIS 117 (1990).

Supplying Drugs Known to Be Dangerous. —

Evidence which tended to show that defendant supplied drugs to the victim with the knowledge that the drugs were inherently dangerous due to the fact that two other people had become violently ill after using the drugs in defendant’s presence, was sufficient to establish “a wrongful act intentionally done without just cause or excuse” and, therefore, the jury could have reasonably inferred that the defendant acted with malice necessary for a conviction of second-degree murder. State v. Liner, 98 N.C. App. 600, 391 S.E.2d 820, 1990 N.C. App. LEXIS 445 (1990).

Submission of second-degree murder as possible jury verdict during trial on charge of first-degree murder was not error where witness’ testimony that defendant was in the back seat holding the victim down while the other defendant pommeled her and then confronted her with a knife, in conjunction with testimony that the victim’s inert body was then dragged to the side of the road, permits an inference beyond any reasonable doubt that defendant acted with malice and in concert in the unlawful killing of the victim. State v. Goodson, 101 N.C. App. 665, 401 S.E.2d 118, 1991 N.C. App. LEXIS 144 (1991).

Course of Conduct. —

Where the offenses of first-degree murder and assault with a deadly weapon were joined offenses for which defendant was convicted contemporaneously with his conviction for second-degree murder, a Class C felony covered by the Fair Sentencing Act, finding these offenses to have established a “course of conduct” in aggravation of second-degree murder, violated the prohibition of such factors in State v. Westmoreland, 314 N.C. 442 , 334 S.E.2d 223 (1985); therefore, defendant was entitled to resentencing in the second-degree murder case, where the “course of conduct” aggravating factor would not be considered. State v. Terry, 337 N.C. 615 , 447 S.E.2d 720, 1994 N.C. LEXIS 493 (1994).

The evidence was insufficient to support the defendant’s conviction of second degree murder for shaking his girlfriend’s baby where the doctor testified that the victim died from shaken baby syndrome, which he said was caused by more than a light shaking; the defendant did not mention shaking the child at the first interview with police, but only after the results of the autopsy were made known to him, at which time he said he “became frustrated and started shaking [the baby]” but did not “realize that he was shaking her that hard” and that he did not mean to hurt her. Many small blood vessels on the surface of the victim’s brain were torn and bleeding, but larger vessels were not torn and there were no other internal or external injuries to the victim’s body, her ribs were not bruised or fractured, and there were no external head injuries and the skull was not fractured. State v. Blue, 138 N.C. App. 404, 531 S.E.2d 267, 2000 N.C. App. LEXIS 633 (2000), aff'd in part and rev'd in part, 353 N.C. 364 , 543 S.E.2d 478, 2001 N.C. LEXIS 267 (2001).

Evidence Held Sufficient. —

The intentional use of a deadly weapon as a weapon, when death proximately results from such use, gives rise to the presumptions that the killing was unlawful and done with malice, and such unlawful killing with malice was murder in the second degree, where all the evidence tended to show that defendant stubbornly continued over a period of hours to curse the deceased and to assault his helpless victim time after time with various deadly weapons while a witness was begging him to cease and desist, and that by these persistent assaults without the slightest provocation he inflicted mortal wounds proximately causing the death of his victim. This evidence afforded no basis upon which defendant could be found guilty of manslaughter. State v. Duboise, 279 N.C. 73 , 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971).

The evidence was sufficient to be submitted to the jury in a second-degree murder prosecution where it tended to show that the defendant and the deceased were imprisoned in the same prison unit, and that a prison guard saw them arguing and broke them up, that later the guard saw defendant approach deceased who was lying on his bunk and make a striking movement toward the deceased’s body, that although the guard saw no knife or other weapon in defendant’s hand, a small knife was later discovered in a heater and that deceased had died from a stab wound to the chest. State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515, 1975 N.C. App. LEXIS 2413 (1975).

The State’s evidence was sufficient to support defendant’s conviction of second-degree murder where it tended to show that the victim entered a car occupied by defendant and defendant’s companion in order to sell defendant a stolen M-16 rifle; the victim was seated in the front seat and defendant was seated in the back seat; defendant told the victim he had to pick up the money for the rifle at a friend’s house; as the car was being driven by defendant’s companion, defendant shot the victim in the head with a pistol which belonged to the girlfriend of the defendant’s companion; defendant threatened to shoot his companion unless he followed defendant’s orders, whereupon the companion assisted defendant in burying the body, and a search of the residence of defendant and his companion uncovered the M-16 rifle. State v. Fletcher, 301 N.C. 709 , 272 S.E.2d 859, 1981 N.C. LEXIS 1024 (1981).

The State’s evidence was sufficient to support convictions of defendants for second-degree murder where it tended to show that the victim, a State’s witness, and another person were standing in the front yard of the witness’s house at 4:00 A.M.; the witness heard a vehicle approaching the house, and heard one defendant screaming at him; the witness saw such defendant driving a pickup truck on the road in front of the house and saw the second defendant firing a gun from the back of the pickup; after passing the house, the pickup turned around and drove by the house again, at which time the second defendant fired several more shots; and the victim sustained a gunshot wound in the neck and died as a result thereof. State v. Spicer, 50 N.C. App. 214, 273 S.E.2d 521, 1981 N.C. App. LEXIS 2110 (1981).

For additional cases in which evidence of second-degree murder was held sufficient, see State v. Casper, 256 N.C. 99 , 122 S.E.2d 805, 1961 N.C. LEXIS 699 (1961), cert. denied, 376 U.S. 927, 84 S. Ct. 691, 11 L. Ed. 2d 622, 1964 U.S. LEXIS 1942 (1964); State v. McCain, 6 N.C. App. 558, 170 S.E.2d 531, 1969 N.C. App. LEXIS 1227 (1969); State v. Moore, 46 N.C. App. 563, 265 S.E.2d 421, 1980 N.C. App. LEXIS 2841 (1980); State v. Farris, 93 N.C. App. 757, 379 S.E.2d 283, 1989 N.C. App. LEXIS 395 (1989).

Evidence held sufficient to support a verdict of guilty of second-degree murder. State v. Blake, 83 N.C. App. 77, 349 S.E.2d 78, 1986 N.C. App. LEXIS 2668 (1986), aff'd, 319 N.C. 599 , 356 S.E.2d 352, 1987 N.C. LEXIS 2086 (1987); State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338, 1987 N.C. App. LEXIS 2571 (1987); State v. Blake, 319 N.C. 599 , 356 S.E.2d 352, 1987 N.C. LEXIS 2086 (1987); State v. Hemphill, 104 N.C. App. 431, 409 S.E.2d 744, 1991 N.C. App. LEXIS 1054 (1991).

Evidence was clearly sufficient to show that the defendant, whether acting alone or together with a codefendant pursuant to a common purpose, committed the crimes of second-degree murder and armed robbery against the victim. State v. Giles, 83 N.C. App. 487, 350 S.E.2d 868, 1986 N.C. App. LEXIS 2729 (1986).

While the opinions of the several medical expert witnesses differed as to the cause of the subarachnoid hemorrhage from which the victim’s death resulted, evidence tending to show that the defendant struck the victim with an iron bar, that the victim fell immediately and was rendered unconscious and went into cardiac arrest, as well as testimony by the State’s pathologist that the victim’s death was caused by the subarachnoid hemorrhage, which in his opinion was produced by trauma, was sufficiently substantial evidence on the issue of proximate cause to warrant submission of second-degree murder charge to the jury. State v. Springer, 83 N.C. App. 657, 351 S.E.2d 120, 1986 N.C. App. LEXIS 2746 (1986).

Evidence of three strong blows to different sides of the head, one severe enough to tear the victim’s ear almost completely off, was sufficient to establish malice and intent to kill for purposes of second degree murder conviction. State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844, 1987 N.C. App. LEXIS 2638 (1987).

Evidence was sufficient to support denial of motion to dismiss in trial for second degree murder under a theory of acting in concert. State v. Moore, 87 N.C. App. 156, 360 S.E.2d 293, 1987 N.C. App. LEXIS 3201 (1987).

Evidence held sufficient to allow the jury to reasonably find that murder was committed by defendant in furtherance of a robbery of the victim and his place of business, and accordingly, to support defendant’s convictions for both second-degree murder and armed robbery. State v. Pearson, 89 N.C. App. 620, 366 S.E.2d 895, 1988 N.C. App. LEXIS 357 , cert. denied, 323 N.C. 627 , 374 S.E.2d 597, 1988 N.C. LEXIS 761 (1988).

Evidence held sufficient to show evidence of malice so as to support conviction of second-degree murder. State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, 1988 N.C. App. LEXIS 449 , writ denied, 322 N.C. 484 , 370 S.E.2d 237, 1988 N.C. LEXIS 318 (1988).

Testimony of the eyewitness that after victim begged defendant not to kill him, that defendant said, “I’m going to kill you anyway” and that he proceeded to do so by deliberately firing a bullet through victim’s skull was sufficient to support conviction of second-degree murder. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760, 1990 N.C. App. LEXIS 1128 (1990).

Where defendant struck victim on the head with a handgun with such force that the victim was knocked instantly to the pavement, and where victim hit the pavement with sufficient force to shatter a bottle and cause punctures to the victim’s face and to cause bone fragments to enter the victim’s brain, there was substantial evidence from which the jury could conclude that the assault was one likely to cause death or serious bodily injury and was, therefore, an intentional killing. State v. Piche, 102 N.C. App. 630, 403 S.E.2d 559, 1991 N.C. App. LEXIS 495 (1991).

Although a physician testified that the hemorrhaging on the top surface of the brain and the cut on top of homicide victim’s head would not generally be considered serious injuries, there was no evidence to show that the act of striking another person in the head with a handgun with sufficient force to knock that person to the ground is not an assault likely to cause death or serious bodily injury. State v. Piche, 102 N.C. App. 630, 403 S.E.2d 559, 1991 N.C. App. LEXIS 495 (1991).

While evidence tended to show that defendant may have killed her husband, it did not necessarily lead to the conclusion that defendant first premeditated and deliberated his death; thus, the evidence supported a finding of second-degree murder. State v. Webster, 111 N.C. App. 72, 431 S.E.2d 808, 1993 N.C. App. LEXIS 708 (1993), aff'd, 337 N.C. 674 , 447 S.E.2d 349, 1994 N.C. LEXIS 490 (1994).

The evidence supported a conviction under this section and the defendant’s acts manifested recklessness of consequences and a total disregard for human life where the evidence showed that the he drove while impaired by alcohol, at a time when his license was in a state of permanent revocation; that he drove his pickup truck erratically, swerved off the road, and struck the victim’s bicycle killing him instantly; and that he was previously convicted of driving while impaired in 1991 and a 1997 conviction for driving while impaired was on appeal. State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859, 2000 N.C. App. LEXIS 600 (2000).

Defendant’s convictions of second degree murder, and of being a violent habitual felon were affirmed; the trial court properly conducted a hearing as contemplated by G.S. 15A-1002(b) before its ruling that defendant was competent to stand trial where defendant was given adequate notice of the hearing, the trial court properly denied defendant’s request for a jury instruction on self defense, the evidence showed that the victim did not carry a gun, that no gun was found on or near the victim, and that defendant never claimed that he saw the victim with a gun, and the trial court properly considered a previous voluntary manslaughter conviction in determining violent habitual felon status. State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d 655, 2003 N.C. App. LEXIS 373 (2003).

Evidence that defendant had a breath alcohol concentration of 0.08 and performed poorly on field sobriety tests after he caused an automobile accident that resulted in the death of a child was sufficient to sustain defendant’s conviction for second-degree murder, and the trial court did not err by allowing the State to introduce evidence that defendant was convicted of driving while impaired after he was involved in another accident in 1996, to prove malice. State v. Locklear, 159 N.C. App. 588, 583 S.E.2d 726, 2003 N.C. App. LEXIS 1535 (2003), aff'd, 359 N.C. 63 , 602 S.E.2d 359, 2004 N.C. LEXIS 1129 (2004).

Defendant’s conviction for accessory after the fact to second-degree murder was supported by evidence showing defendant personally helped the principal avoid arrest, including testimony about the perpetrator’s guilt, circumstantial evidence linking the perpetrator to a car used in the crime, and the perpetrator’s guilty plea, and testimony that defendant learned the perpetrator had “gotten his stripes” by attacking the victim, that defendant offered $2,000 for use of a car to leave town with the perpetrator, and that they left town. State v. Brewington, 179 N.C. App. 772, 635 S.E.2d 512, 2006 N.C. App. LEXIS 2133 (2006).

Sufficient evidence supported a second-degree murder charge against defendant, where defendant used a deadly weapon, a gun, and intentionally shot the victim after the victim tackled defendant’s brother. State v. Johnson, 182 N.C. App. 63, 641 S.E.2d 364, 2007 N.C. App. LEXIS 500 (2007).

Evidence that defendant fired several shots in the direction of three individuals, in a small trailer occupied by six persons, and that he admitted shooting one of the individuals, was sufficient to support his conviction of the second degree murder of that individual under G.S. 14-17 . State v. Brower, 186 N.C. App. 397, 651 S.E.2d 390, 2007 N.C. App. LEXIS 2209 (2007), cert. denied, 555 U.S. 954, 129 S. Ct. 418, 172 L. Ed. 2d 303, 2008 U.S. LEXIS 7664 (2008).

Evidence was sufficient to support defendant’s convictions for second degree murder where defendant stole a van, drove it recklessly while being pursued by police, which resulted in the van flipping over, colliding with another vehicle, and the occupants thereof being killed; there was sufficient evidence of defendant’s malice. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299, 2007 N.C. App. LEXIS 2253 (2007), cert. denied, 363 N.C. 586 , 683 S.E.2d 214, 2009 N.C. LEXIS 823 (2009).

Where the State introduced evidence that defendant knew a drug that defendant sold to two minors was inherently dangerous, there was sufficient evidence of malice to support a charge of second-degree murder. State v. Parlee, 209 N.C. App. 144, 703 S.E.2d 866, 2011 N.C. App. LEXIS 51 (2011).

Evidence was sufficient to support defendant’s conviction for second-degree murder under G.S. 14-17 , based on proper consideration of her confession with respect to her conduct towards her newborn baby, as well as other evidence that tied defendant to the criminal incident and proved that she was the perpetrator of the offense. State v. Kelly, 221 N.C. App. 643, 727 S.E.2d 912, 2012 N.C. App. LEXIS 880 (2012).

Evidence Held Insufficient. —

Evidence was insufficient to be submitted to the jury on charges of second-degree murder and voluntary manslaughter but was sufficient to be submitted on the charge of involuntary manslaughter where the evidence tended to show that defendant, a 16 year old boy, shot his 10 year old sister, but in showing the events leading up to and preceding the death of the sister, the State relied entirely on voluntary statements of defendant to the effect that he and his sister were fussing, defendant was “messing around with a shotgun”, and the gun accidentally went off. State v. Wagner, 50 N.C. App. 286, 273 S.E.2d 33, 1981 N.C. App. LEXIS 2111 (1981).

Evidence that the defendant and the victim argued, without more, was insufficient to show that the defendant’s anger was strong enough to disturb his ability to reason, and without evidence showing that the defendant was incapable of deliberating his actions, the evidence could not support the lesser included offense of second-degree murder. State v. Solomon, 340 N.C. 212 , 456 S.E.2d 778, 1995 N.C. LEXIS 241 , cert. denied, 516 U.S. 996, 116 S. Ct. 533, 133 L. Ed. 2d 438, 1995 U.S. LEXIS 7957 (1995).

For additional case in which evidence was held insufficient to support a finding of second-degree murder, see State v. Johnson, 78 N.C. App. 729, 338 S.E.2d 584, 1986 N.C. App. LEXIS 2003 , writ denied, 316 N.C. 382 , 342 S.E.2d 902, 1986 N.C. LEXIS 2089 (1986).

For additional cases in which evidence of second-degree murder was held sufficient, see State v. Mooneyhan, 104 N.C. App. 477, 409 S.E.2d 700, 1991 N.C. App. LEXIS 1058 (1991).

There is no “attempted second-degree murder” under North Carolina law; instead of seeking such a conviction, the prosecutor could have charged the defendant in a separate indictment with assault with a deadly weapon with intent to kill which requires proof of an element not required for attempted murder—use of a deadly weapon—and is not a lesser-included offense of attempted murder. State v. Coble, 351 N.C. 448 , 527 S.E.2d 45, 2000 N.C. LEXIS 233 (2000).

An incorrect instruction on attempted second-degree murder was not prejudicial to the defendant where no such crime exists and the jury found defendant guilty of attempted first-degree murder; they would not have found him totally innocent had the instructions been correct. State v. Choppy, 141 N.C. App. 32, 539 S.E.2d 44, 2000 N.C. App. LEXIS 1275 (2000).

The trial court did not err or violate double jeopardy principles in sentencing the defendant for both impaired driving and second degree murder. Driving while impaired is not a lesser included offense of second degree murder. State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859, 2000 N.C. App. LEXIS 600 (2000).

Double jeopardy did not require a driving while intoxicated (DWI) conviction had to be vacated where defendant was also convicted of second-degree murder because the legislature intended to create two separate offenses, and punishment for second degree murder was controlled by structured sentencing, while punishment for DWI was exempted from the structured sentencing provisions. State v. Armstrong, 203 N.C. App. 399, 691 S.E.2d 433, 2010 N.C. App. LEXIS 653 (2010).

VI.Defenses and Denials
A.In General

The common law “year and a day rule” purports to bar a prosecution for a person’s death where death actually occurs more than a year and a day after the time of the injuries inflicted by the defendant. The rationale for this rule was that causation was less certain when the victim’s death occurred so long after the defendant’s act, however, where there was sufficient evidence to support the conclusion that victim’s death was the proximate result of injuries he received due to defendant’s actions, the court would not apply that rule. State v. Vance, 98 N.C. App. 105, 390 S.E.2d 165, 1990 N.C. App. LEXIS 315 (1990), rev'd, 328 N.C. 613 , 403 S.E.2d 495, 1991 N.C. LEXIS 324 (1991).

Defendant may rely on more than one defense. State v. Todd, 264 N.C. 524 , 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965).

Plea of not guilty to the felony of second degree murder entitles defendant to offer evidence that the killing was committed in self-defense, by accident, or both; no election is required. State v. Hayes, 88 N.C. App. 749, 364 S.E.2d 712, 1988 N.C. App. LEXIS 1189 , writ denied, 322 N.C. 327 , 368 S.E.2d 871, 1988 N.C. LEXIS 246 (1988).

For discussion of defense of habitation, see State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, 1988 N.C. App. LEXIS 449 , writ denied, 322 N.C. 484 , 370 S.E.2d 237, 1988 N.C. LEXIS 318 (1988).

B.Accident

When Homicide Will Be Excused as Accidental. —

A homicide will be excused as accidental where (1) the killing was unintentional, (2) the perpetrator acted with no wrongful purpose, (3) the killing occurred while the perpetrator was engaged in a lawful enterprise, and (4) the killing did not occur as a result of culpable negligence. State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125, 1987 N.C. App. LEXIS 3074 (1987).

A defendant’s assertion of accidental killing is not an affirmative defense. State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969).

But Rather, a Denial of Guilt. —

The contention of a defendant charged with homicide that the killing was accidental is not an affirmative defense, but rather, a denial of guilt by denying the element of intent. State v. Jackson, 36 N.C. App. 126, 242 S.E.2d 891, 1978 N.C. App. LEXIS 2417 , cert. denied, 295 N.C. 470 , 246 S.E.2d 11, 1978 N.C. LEXIS 923 (1978).

Misadventure or accident is not an affirmative defense but merely a denial that defendant intentionally shot the deceased. State v. Mercer, 275 N.C. 108 , 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969).

The defense of accident is triggered in factual situations where a defendant, without premeditation, intent, or culpable negligence, commits acts which bring about the death of another. It is not an affirmative defense, but acts to negate the mens rea element of homicide. State v. Lytton, 319 N.C. 422 , 355 S.E.2d 485, 1987 N.C. LEXIS 2027 (1987).

And Does Not Shift the Burden of Proof to Defendant. —

The plea of accidental homicide, if indeed it can be properly called a plea, is certainly not an affirmative defense, and therefore does not impose the burden of proof upon the defendant, because the State cannot ask for a conviction unless it proves that the killing was done with criminal intent. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

Defendant’s assertion that the killing of deceased with a deadly weapon was accidental is not an affirmative defense which shifts the burden of proof to him to exculpate himself from a charge of murder; it is merely a denial that the defendant committed the crime, and the burden remains on the State to prove a homicide resulting from the intentional use of a deadly weapon before any presumption arises against the defendant. State v. Wrenn, 279 N.C. 676 , 185 S.E.2d 129, 1971 N.C. LEXIS 909 (1971).

Assertion by an accused that a killing with a deadly weapon was accidental is a denial that he committed the crime charged and is in no sense an affirmative defense shifting the burden to him to satisfy the jury that death of the victim was in fact an accident. State v. Harris, 289 N.C. 275 , 221 S.E.2d 343, 1976 N.C. LEXIS 1251 (1976).

State’s Burden of Proof Where Accidental Killing is Claimed. —

The claim that the killing was accidental goes to the very gist of the charge, and denies all criminal intent, and throws on the prosecution the burden of proving such intent beyond a reasonable doubt. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

As to the burden of proof where the defendant asserts killing was accidental, see also State v. Fowler, 268 N.C. 430 , 150 S.E.2d 731, 1966 N.C. LEXIS 1220 (1966).

Accident Is Not a Defense to Felony Murder. —

Accident will be no defense to a homicide committed in the perpetration of or in the attempt to perpetrate a felony. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

Evidence of Accidental Discharge of Weapon. —

When it is made to appear that death was caused by a gunshot wound, testimony tending to show that the weapon was fired in a scuffle or by some other accidental means is competent to rebut an intentional shooting. State v. Phillips, 264 N.C. 508 , 142 S.E.2d 337, 1965 N.C. LEXIS 1227 (1965).

Evidence of Prior Assaults on Same Victim. —

In defendant’s trial on a charge of murder in the first degree, the trial court properly admitted testimony which showed that defendant assaulted the victim, his girlfriend, on prior occasions and that defendant’s girlfriend had asked defendant to leave her residence on the day he shot her, because the testimony was relevant to defendant’s claim that he discharged his gun accidentally and the prejudicial effect of the evidence did not outweigh its probative value. State v. Latham, 157 N.C. App. 480, 579 S.E.2d 443, 2003 N.C. App. LEXIS 743 (2003).

Instruction on “Accident” Need Not Define Term. —

In a prosecution for murder and assault with a deadly weapon with intent to kill, where the trial judge instructs the jury on the defense of accident, it is not error if the court does not define the word “accident.” State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, 1976 N.C. App. LEXIS 2364 , cert. denied, 289 N.C. 728 , 224 S.E.2d 675, 1976 N.C. LEXIS 1385 (1976).

Instruction Held Necessary. —

Where both defendant’s sister and mother were witnesses for the State and testified that defendant stated that the shooting was accidental, trial judge erred in not instructing jury on defense of accident since testimony gave rise to inference from which jury could find defendant accidentally shot and killed his brother. State v. Garrett, 93 N.C. App. 79, 376 S.E.2d 465, 1989 N.C. App. LEXIS 83 , writ denied, 324 N.C. 338 , 378 S.E.2d 802, 1989 N.C. LEXIS 225 (1989).

Instruction Held Not Necessary. —

In a prosecution for second-degree murder, where the victim died of drowning, it was not error for the court to fail to charge the jury on the defense of accident. If the victim died as the result of an accidental drowning, it was an accident with which the defendant had nothing to do. If the jury had accepted the defendant’s version of the event, the jury should have found the defendant not guilty under the charge given to them by the court. It was not necessary for the court to charge on accident. State v. Willoughby, 58 N.C. App. 746, 294 S.E.2d 407, 1982 N.C. App. LEXIS 2827 (1982).

Evidence Held Insufficient to Support Defense of Accidental Death. —

Evidence in a prosecution for second-degree murder that defendant did not intend for the bullet to strike the victim but that he intended to fire to the right of his head for the purpose of scaring him did not present the defense of death by accident. State v. Walker, 34 N.C. App. 485, 238 S.E.2d 666, 1977 N.C. App. LEXIS 1724 (1977), cert. denied, 294 N.C. 445 , 241 S.E.2d 847, 1978 N.C. LEXIS 1284 (1978).

Where the evidence was uncontroverted that defendant was in a car driving away from the scene when the decedent called out, and that at that point defendant ordered the driver to stop, left the safety of the car with a loaded pistol in his hand, and approached the decedent, voluntarily placing himself in a volatile situation, the fact that he claimed that he did not intend the shooting would not cleanse him of culpability and thus give rise to a defense of accident. However, the defendant was entitled to have the jury consider whether he was guilty only of the offense of involuntary manslaughter. State v. Lytton, 319 N.C. 422 , 355 S.E.2d 485, 1987 N.C. LEXIS 2027 (1987).

Evidence held sufficient to show that individual was the victim of murder rather than the victim of an accident, and that defendant committed the crime. State v. Carroll, 85 N.C. App. 696, 355 S.E.2d 844, 1987 N.C. App. LEXIS 2638 (1987).

Testimony of physician that 30-day-old victim sustained profound head injury indicating fracture of the skull bones, that it is hard to fracture a child’s bones, and that it would take a considerable amount of torsion or force to cause the fractures he observed during the autopsy of the victim was sufficient to permit a jury to find that the victim’s injuries were not the result of accident. State v. Perdue, 320 N.C. 51 , 357 S.E.2d 345, 1987 N.C. LEXIS 2179 (1987).

C.Insanity

The jury should establish the defendant’s guilt or innocence of the crime first and reach the insanity issue only if it first has found the defendant guilty of the crime. State v. Evangelista, 319 N.C. 152 , 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (1987).

The test of insanity as a defense to a criminal charge in this State is the capacity to distinguish between right and wrong at the time of and in respect to the matter under investigation. State v. Mize, 315 N.C. 285 , 337 S.E.2d 562, 1985 N.C. LEXIS 1993 (1985).

Legal insanity requires that the accused be laboring under such defect of reason from disease of the mind as to be incapable of knowing the nature and quality of his act, or if he does know this, not to know right from wrong. State v. Pope, 24 N.C. App. 217, 210 S.E.2d 267, 1974 N.C. App. LEXIS 1965 (1974), cert. denied, 286 N.C. 419 , 211 S.E.2d 799, 1975 N.C. LEXIS 1230 (1975).

The test of insanity as a defense to a criminal charge is whether the defendant was laboring under such a defect of reason from disease or deficiency of mind at the time of the alleged act as to be incapable of knowing the nature and quality of his or her act or, if the defendant did know this, was incapable of distinguishing between right and wrong in relation to such act. State v. Evangelista, 319 N.C. 152 , 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (1987).

The M’Naghten test, which focuses on the defendant’s capacity to distinguish between right and wrong at the time of and in respect to the crime in question, is the appropriate test for insanity. State v. Davis, 321 N.C. 52 , 361 S.E.2d 724, 1987 N.C. LEXIS 2506 (1987).

A defendant who does not have the mental capacity to form an intent to kill, or to premeditate and deliberate upon the killing, cannot be lawfully convicted of murder in the first degree, whether such mental deficiency be due to a disease of the mind, intoxication or some other cause. State v. Cooper, 286 N.C. 549 , 213 S.E.2d 305, 1975 N.C. LEXIS 1266 (1975); State v. Shepherd, 288 N.C. 346 , 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975); State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

Insanity Is an Affirmative Defense. —

For case declining to change the longstanding common-law rule in North Carolina that insanity is an affirmative defense which must be proved by the defendant, see State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Burden of Proof on Defendant to Prove Insanity. —

The presumption of sanity gives rise to the firmly established rule that the defendant has the burden of proving that he was insane during the commission of the crime. The defendant, however, unlike the State, which must prove his guilt beyond a reasonable doubt, is merely required to prove his insanity to the satisfaction of the jury. State v. Mize, 315 N.C. 285 , 337 S.E.2d 562, 1985 N.C. LEXIS 1993 (1985); State v. Evangelista, 319 N.C. 152 , 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (1987).

The trial court’s instruction to the jury that the defendant had the burden of proving his insanity to the jury’s satisfaction was not error. State v. Evangelista, 319 N.C. 152 , 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (1987).

In this jurisdiction every person is presumed sane until the contrary is shown, and the defendant has the burden of proving his insanity to the satisfaction of the jury. State v. Davis, 321 N.C. 52 , 361 S.E.2d 724, 1987 N.C. LEXIS 2506 (1987).

It is the defendant’s burden to satisfy the jury of the existence of the insanity defense, even where the evidence of insanity presented by the defendant is uncontradicted by an offer of proof by the State. State v. Battle, 322 N.C. 69 , 366 S.E.2d 454, 1988 N.C. LEXIS 126 , cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

Constitutionality of Placing Such Burden on Defendant. —

The mens rea or the criminal intent required for first degree murder is proven through the elements of premeditation and deliberation. The State is not unconstitutionally relieved of any burden by the rule placing the burden of proof on the issue of insanity on defendant. State v. Mize, 315 N.C. 285 , 337 S.E.2d 562, 1985 N.C. LEXIS 1993 (1985).

Burden of Proving Unlawfulness Not Shifted to Defendant. —

The defense of insanity is unrelated to the existence or nonexistence of the element of unlawfulness. To place the burden of persuasion on the insanity issue upon the defendant in a homicide case in no way lessens the state’s burden to prove unlawfulness beyond a reasonable doubt, nor does it shift the burden of persuasion on this element to the defendant. State v. Marley, 321 N.C. 415 , 364 S.E.2d 133, 1988 N.C. LEXIS 6 (1988).

Theory of Diminished Responsibility Not Adopted. —

The Supreme Court has not adopted with respect to the specific intent to commit a crime such as first-degree murder what has been called the theory of diminished responsibility, under which some states hold that a defendant may offer evidence of an unusual or abnormal mental condition which is not sufficient to establish legal insanity, but tends to show that he did not have the capacity to premeditate or deliberate at the time of the murder. State v. Shepherd, 288 N.C. 346 , 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975).

Diminished capacity not amounting to legal insanity is not a defense to the element of malice in second-degree murder. State v. Page, 346 N.C. 689 , 488 S.E.2d 225, 1997 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (1998).

Admissibility of Evidence of Abnormal Mental Condition Not Amounting to Legal Insanity. —

A defendant may offer evidence of an abnormal mental condition, although not sufficient to establish legal insanity, for the purpose of showing that he did not have the capacity to deliberate or premeditate at the time the homicide was committed, elements necessary for a conviction of murder in the first degree. State v. Baldwin, 276 N.C. 690 , 174 S.E.2d 526, 1970 N.C. LEXIS 739 (1970).

Admissibility of Expert Testimony as to Mental Capacity. —

Since first-degree murder requires premeditation and deliberation, opinion testimony tending to show that a defendant did not have the capacity to premeditate or deliberate is testimony that embraces an ultimate issue to be decided by the trier of fact. Under G.S. 8C-1 , Rule 704, however, such testimony is not thereby rendered inadmissible. State v. Shank, 322 N.C. 243 , 367 S.E.2d 639, 1988 N.C. LEXIS 293 (1988).

Section 8C-1, Rule 704 plainly provides that an expert witness is not precluded from testifying as to whether a defendant had the capacity to make and carry out plans, or was under the influence of mental or emotional disturbance, merely because such testimony relates to an ultimate issue to be decided by the trier of fact. State v. Shank, 322 N.C. 243 , 367 S.E.2d 639, 1988 N.C. LEXIS 293 (1988) (overruling) State v. Kirkley, 308 N.C. 196 , 302 S.E.2d 144, 1983 N.C. LEXIS 1158 (1983) (and) State v. Anderson, 303 N.C. 185 , 278 S.E.2d 238, 1981 N.C. LEXIS 1100 (1981) (insofar as they are inconsistent) .

Trial court’s instruction that voluntary intoxication would not support a defense of insanity was not erroneous, where there was no evidence tending to show that defendant was suffering any chronic or permanent insanity in consequence of his excessive ingestion of alcohol. State v. Austin, 320 N.C. 276 , 357 S.E.2d 641, 1987 N.C. LEXIS 2168 , cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224, 1987 U.S. LEXIS 4370 (1987).

Instruction on Insanity Properly Refused. —

In the absence of any evidence of insanity, it is not error for the trial judge to refuse the defendant’s request that he instruct the jury upon the law relating to insanity as a defense to the charge of murder. State v. Jones, 293 N.C. 413 , 238 S.E.2d 482, 1977 N.C. LEXIS 969 (1977).

The trial court did not err by not charging the jury on the defense of insanity where the evidence only included testimony that defendant drove down the highway recklessly, that he woke his family up during the night to go “bird blinding,” that he shot into the floor beside his wife a few times, that he beat his wife and children, and that he had a reputation in the community for being crazy. State v. Strickland, 321 N.C. 31 , 361 S.E.2d 882, 1987 N.C. LEXIS 2505 (1987).

The trial court did not err in failing to direct verdicts of not guilty by reason of insanity, where although the defendant presented strong evidence that he was insane when he shot one victim and deprived her infant of liquids, the State presented evidence tending to controvert the defendant’s evidence and to support the presumption of his sanity. State v. Evangelista, 319 N.C. 152 , 353 S.E.2d 375, 1987 N.C. LEXIS 1886 (1987).

Effect of Finding of Not Guilty by Reason of Insanity. —

A finding of not guilty by reason of insanity is not the same as an acquittal, nor does it result in defendant’s being found guilty of a lesser degree of homicide. It simply means that defendant is absolved from criminal responsibility for his act and cannot be punished for it. Instead, defendant, upon appropriate findings by the trial court, may be involuntarily committed to a State mental health facility. State v. Marley, 321 N.C. 415 , 364 S.E.2d 133, 1988 N.C. LEXIS 6 (1988).

D.Intoxication

Drunkenness May Negate Specific Intent to Kill. —

Voluntary drunkenness is not a legal excuse for crime; but where a specific intent, or premeditation and deliberation, is essential to constitute a crime or a degree of crime, the fact of intoxication may negate its existence. State v. Propst, 274 N.C. 62 , 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

The general rule that voluntary drunkenness is no legal excuse for crime does not obtain with respect to crimes where, in addition to the overt act, it is required that a definite, specific intent be established as an essential feature. Murder in the first degree is a specific intent crime in that a specific intent to kill is a necessary ingredient of premeditation and deliberation. Intoxication which renders an offender utterly unable to form the required intent may be shown as a defense. State v. Baldwin, 276 N.C. 690 , 174 S.E.2d 526, 1970 N.C. LEXIS 739 (1970).

While voluntary drunkenness is not, per se, an excuse for a criminal act, it may be sufficient in degree to prevent and, therefore, disprove the existence of a specific intent such as the intent to kill. State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972).

Defendant’s intoxicated condition went only to negate the specific intent necessary to find him guilty of first-degree murder. State v. Cummings, 22 N.C. App. 452, 206 S.E.2d 781, 1974 N.C. App. LEXIS 2355 , cert. denied, 285 N.C. 760 , 209 S.E.2d 284, 1974 N.C. LEXIS 1156 (1974).

And May Be Defense to First Degree Murder But Not to Second Degree Murder. —

Voluntary drunkenness is a defense to the charge of first-degree murder to the extent that it precludes the mental processes of premeditation and deliberation, but voluntary drunkenness is no defense to murder in the second degree. State v. Couch, 35 N.C. App. 202, 241 S.E.2d 105, 1978 N.C. App. LEXIS 2924 (1978); State v. King, 49 N.C. App. 499, 272 S.E.2d 26, 1980 N.C. App. LEXIS 3423 (1980).

But Voluntary Intoxication Is Not a Defense to Felony Murder Based on Arson. —

Since voluntary intoxication is not a defense to a charge of arson, it is not a defense to a charge of felony murder having as its underlying felony the crime of arson. State v. White, 291 N.C. 118 , 229 S.E.2d 152, 1976 N.C. LEXIS 938 (1976).

Where legal intoxication is shown, the offense is reduced to second-degree murder. State v. Bunn, 283 N.C. 444 , 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. McLaughlin, 286 N.C. 597 , 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976); State v. Bock, 288 N.C. 145 , 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976).

No Inference Arises from Intoxication as Matter of Law. —

Whether intoxication and premeditation can coexist depends upon the degree of inebriety and its effect upon the mind and passions. No inference of the absence of deliberation and premeditation arises from intoxication as a matter of law. State v. Hamby, 276 N.C. 674 , 174 S.E.2d 385, 1970 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972); State v. Bunn, 283 N.C. 444 , 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973).

Because an Intoxicated Person May Still Be Capable of Premeditation and Deliberation. —

No inference of the absence of deliberation and premeditation arises from intoxication as a matter of law because intoxication does not necessarily render a person incapable of engaging in the thought processes of premeditation and deliberation. State v. Lowery, 309 N.C. 763 , 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (1983); State v. Locklear, 322 N.C. 349 , 368 S.E.2d 377, 1988 N.C. LEXIS 364 (1988).

A person may be excited, intoxicated and emotionally upset, and still have the capability to formulate the necessary plan, design, or intention to commit murder in the first degree. State v. Hamby, 276 N.C. 674 , 174 S.E.2d 385, 1970 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Bunn, 283 N.C. 444 , 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973).

Evidence of defendant’s intoxication need only raise a reasonable doubt as to whether defendant formed the requisite intent to kill required for conviction of first-degree murder in order for defendant to prevail on this issue. State v. Mash, 323 N.C. 339 , 372 S.E.2d 532, 1988 N.C. LEXIS 608 (1988).

Degree of Intoxication Which Must Be Shown to Constitute a Defense. —

To make the defense of intoxication available the evidence must show that at the time of the killing the prisoner’s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. And where the evidence shows that the purpose to kill was deliberately and premeditatedly formed when sober, the imbibing of intoxicants to whatever extent in order to carry out the design will not avail as a defense. State v. Baldwin, 276 N.C. 690 , 174 S.E.2d 526, 1970 N.C. LEXIS 739 (1970); State v. Medley, 295 N.C. 75 , 243 S.E.2d 374, 1978 N.C. LEXIS 947 (1978); State v. Lowery, 309 N.C. 763 , 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (1983).

For intoxication to constitute a defense it must appear that the defendant was not able, by reason of drunkenness, to think out beforehand what he intended to do and weigh it and understand the nature and consequence of his act. State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972); State v. Bunn, 283 N.C. 444 , 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. Medley, 295 N.C. 75 , 243 S.E.2d 374, 1978 N.C. LEXIS 947 (1978).

If at the time of the killing, defendant was so drunk as to be utterly incapable of forming a deliberate and premeditated intent to kill a person, he could not be guilty of murder in the first degree, for an essential element of that crime would be lacking. State v. Hamby, 276 N.C. 674 , 174 S.E.2d 385, 1970 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Bunn, 283 N.C. 444 , 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. Bock, 288 N.C. 145 , 217 S.E.2d 513, 1975 N.C. LEXIS 891 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3208, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4207 (1976); State v. Locklear, 322 N.C. 349 , 368 S.E.2d 377, 1988 N.C. LEXIS 364 (1988).

In the absence of evidence of intoxication to a degree precluding the ability to form a specific intent to kill, the court is not required to charge the jury thereupon. State v. McLaughlin, 286 N.C. 597 , 213 S.E.2d 238, 1975 N.C. LEXIS 1267 (1975), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 29 L. Ed. 2d 1208, 1976 U.S. LEXIS 4202 (1976).

A defendant who wishes to raise an issue for the jury as to whether he was so intoxicated by the voluntary consumption of alcohol that he did not form a deliberate and premeditated intent to kill has the burden of producing evidence, or relying on evidence produced by the State, which would support a conclusion by the judge that he was so intoxicated that he could not form a deliberate and premeditated intent to kill. State v. Mash, 323 N.C. 339 , 372 S.E.2d 532, 1988 N.C. LEXIS 608 (1988).

Where, among other things, witness’ testimony painted a vivid portrait of defendant coolly and coherently planning the murder with an accomplice, defendant had the presence of mind to realize the victim would not open the door for him and to communicate this problem to the accomplice, and was alert enough to compel the witness’ participation in the crime, this evidence, viewed in the light most favorable to the State, was sufficient to support a finding that defendant was not so intoxicated as to be incapable of premeditation and deliberation. State v. Cummings, 323 N.C. 81 , 372 S.E.2d 541 (1988) (in light of) In re Howett, 76 N.C. App. 142, 331 S.E.2d 701, 1985 N.C. App. LEXIS 3819 (1985).

Intent to Kill Formed When Sober and Executed When Drunk. —

Where the facts show that the intent to kill was deliberately formed when sober and executed when drunk, intoxication is no defense to the capital charge of murder in the first degree. State v. Baldwin, 276 N.C. 690 , 174 S.E.2d 526, 1970 N.C. LEXIS 739 (1970).

Intoxication for Purposes of Motor Vehicle Laws Is Not Sufficient to Establish Defense. —

A person may be “under the influence” of intoxicants in violation of the motor vehicle laws and yet be quite capable of forming and carrying out a specific intent to kill. State v. Medley, 295 N.C. 75 , 243 S.E.2d 374, 1978 N.C. LEXIS 947 (1978).

Breathalyzer Test Is Not Applicable in Homicides. —

The chemical analysis (Breathalyzer) test authorized by G.S. 20-139.1 is, by its express terms, applicable only to criminal actions arising out of the operation of a motor vehicle and has no application to criminal responsibility for homicide. State v. Medley, 295 N.C. 75 , 243 S.E.2d 374, 1978 N.C. LEXIS 947 (1978).

Effect of Intoxication Is Question for Jury. —

It is for the jury to determine whether the mental condition of accused was so far affected by intoxication that he was unable to form a guilty intent to commit murder, unless the evidence is not sufficient to warrant the submission of the question to the jury. State v. Hamby, 276 N.C. 674 , 174 S.E.2d 385, 1970 N.C. LEXIS 737 (1970), vacated, 408 U.S. 937, 92 S. Ct. 2862, 33 L. Ed. 2d 754, 1972 U.S. LEXIS 1911 (1972); State v. Lowery, 309 N.C. 763 , 309 S.E.2d 232, 1983 N.C. LEXIS 1463 (1983).

Evidence Held Insufficient to Support Defense of Intoxication. —

Where the evidence tended to show that defendant was drinking heavily but there was no evidence tending to show that defendant did not know what he was doing, both in the planning and the execution of the crime which he consummated, the evidence was not sufficient to make available to him the defense of intoxication. State v. Doss, 279 N.C. 413 , 183 S.E.2d 671, 1971 N.C. LEXIS 841 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762, 1972 U.S. LEXIS 1957 (1972).

The trial court did not err in refusing to instruct on voluntary intoxication and to submit the possible verdict of second degree murder to the jury, where defendant did not show voluntary intoxication sufficient to negate specific intent. State v. Strickland, 321 N.C. 31 , 361 S.E.2d 882, 1987 N.C. LEXIS 2505 (1987).

Evidence presented that defendant drank “about five or six” beers and consumed an indeterminate amount of marijuana and cocaine at some time earlier in the day was insufficient to show that defendant was so intoxicated that he was incapable of forming the intent necessary to commit first-degree premeditated and deliberated murder. State v. Baldwin, 330 N.C. 446 , 412 S.E.2d 31, 1992 N.C. LEXIS 5 (1992).

Instruction on Intoxication Not Required. —

Trial court did not err in charging that defendant’s intoxication could have no bearing upon his guilt or innocence of the lesser included offenses in the charge of first-degree murder. State v. Cummings, 22 N.C. App. 452, 206 S.E.2d 781, 1974 N.C. App. LEXIS 2355 , cert. denied, 285 N.C. 760 , 209 S.E.2d 284, 1974 N.C. LEXIS 1156 (1974).

It would have been erroneous for the trial court to have given an instruction on voluntary intoxication; defendant had to produce substantial evidence which would have supported a conclusion by the trial court that the defendant’s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated intent to kill; therefore, evidence tending to show only that the defendant drank some unknown quantity of beer over a period of several hours and claimed not to remember the killings did not meet the defendant’s burden of production. State v. Laws, 325 N.C. 81 , 381 S.E.2d 609, 1989 N.C. LEXIS 377 (1989), vacated, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603, 1990 U.S. LEXIS 1489 (1990).

Where the defendant did not make the requisite showing that he and co-conspirator was utterly incapable of forming the requisite intent, the trial court did not err in failing to give an instruction on voluntary intoxication. State v. Larrimore, 340 N.C. 119 , 456 S.E.2d 789, 1995 N.C. LEXIS 242 (1995).

E.Provocation

Provocation Is an Affirmative Defense. —

The legal provocation that will rob the crime of malice and thus reduce it to manslaughter, and self-defense, are affirmative pleas. State v. Todd, 264 N.C. 524 , 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965).

Provocation never disproves malice, but only removes the presumption of malice, which the law raises without proof. A malicious killing is murder, however gross the provocation. State v. Johnson, 23 N.C. 354 , 1840 N.C. LEXIS 140 (1840).

Reduction of Killing in Heat of Passion Engendered by Provocation to Manslaughter. —

In order to reduce second-degree murder to voluntary manslaughter, there must be some evidence that the defendant killed his victim in the heat of passion engendered by provocation which the law deems adequate to depose reason. State v. Burden, 36 N.C. App. 332, 244 S.E.2d 204, 1978 N.C. App. LEXIS 2476 , cert. denied, 295 N.C. 468 , 246 S.E.2d 216, 1978 N.C. LEXIS 913 (1978).

To reduce the crime of murder to voluntary manslaughter, the defendant must either rely on evidence presented by the State or assume a burden to go forward with or produce some evidence of all the elements of heat of passion on sudden provocation. State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

For case defining the term “heat of passion,” see State v. Pope, 24 N.C. App. 217, 210 S.E.2d 267, 1974 N.C. App. LEXIS 1965 (1974), cert. denied, 286 N.C. 419 , 211 S.E.2d 799, 1975 N.C. LEXIS 1230 (1975).

Abusive language will not serve as a legally sufficient provocation for a homicide in this State. State v. Watson, 287 N.C. 147 , 214 S.E.2d 85, 1975 N.C. LEXIS 1073 (1975).

Nor Mitigate Homicide to Lesser Degree. —

Mere words, however abusive, are never sufficient legal provocation to mitigate a homicide to a lesser degree. State v. Watson, 287 N.C. 147 , 214 S.E.2d 85, 1975 N.C. LEXIS 1073 (1975).

Words alone are never sufficient provocation to mitigate second degree murder to voluntary manslaughter. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

These facts do not show legal provocation: defendant prepared to shoot the victim by loading his gun and putting on the safety before he got out of his car; after the victim arrived, defendant removed the safety, knowing that shells were chambered and ready to be fired; defendant was approximately thirty feet from the victim when the victim directed a flashlight beam at defendant’s face. The victim and defendant exchanged no words and had no physical contact. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

Defendant’s statement to the police, admitting that he shot victim for refusing to hand over money from cash register, constituted substantial evidence that defendant was not provoked. State v. Miller, 339 N.C. 663 , 455 S.E.2d 137, 1995 N.C. LEXIS 94 (1995).

Evidence that defendant found his estranged wife riding in a car with another man was not sufficient to show adequate cause for passion which would negate the malice of murder and reduce it to manslaughter. State v. Burden, 36 N.C. App. 332, 244 S.E.2d 204, 1978 N.C. App. LEXIS 2476 , cert. denied, 295 N.C. 468 , 246 S.E.2d 216, 1978 N.C. LEXIS 913 (1978).

Evidence That Deceased Threw Cigarette Butt at Defendant. —

The law requires a showing of strong provocation before it will grant a defendant who is charged with second-degree murder a jury instruction on the lesser included offense of voluntary manslaughter. Evidence that the deceased threw a cigarette butt at defendant does not rise to the level of serious provocation required. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

The fact that defendant killed his father in order to end his suffering did not constitute adequate provocation to negate malice, since defendant, though clearly upset by his father’s condition, indicated by his action and his statements that his crime was premeditated and deliberate. State v. Forrest, 321 N.C. 186 , 362 S.E.2d 252, 1987 N.C. LEXIS 2561 (1987).

“Aggressor Instruction”. —

Where state’s witnesses testified defendant threatened shooting victim just seconds before the shooting — sufficiently close in time to the alleged crime to affect defendant’s self-defense argument — and defendant disputed this evidence, testifying that he shot the man in self-defense after the man provoked him it was not error for the court to give an “aggressor instruction.” Although defendant’s evidence did not support the aggressor instruction, the state’s evidence did. By instructing jurors on the aggressor qualification, the trial court allowed the triers of fact to determine which testimony to believe. Not only was this not plain error, it was not error at all. State v. Terry, 329 N.C. 191 , 404 S.E.2d 658, 1991 N.C. LEXIS 401 (1991).

F.Self-Defense

Elements of Perfect Self-Defense. —

The law of perfect self-defense excuses a killing altogether if, at the time of the killing, these four elements existed: (1) It appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm. State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Cooke, 306 N.C. 117 , 291 S.E.2d 649, 1982 N.C. LEXIS 1373 (1982); State v. Bush, 307 N.C. 152 , 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995); State v. Vaughan, 59 N.C. App. 318, 296 S.E.2d 516, 1982 N.C. App. LEXIS 3106 (1982), cert. denied, 461 U.S. 943, 103 S. Ct. 2120, 77 L. Ed. 2d 1301, 1983 U.S. LEXIS 219 (1983).

For a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm. State v. Norman, 324 N.C. 253 , 378 S.E.2d 8, 1989 N.C. LEXIS 158 (1989).

Perfect Self-Defense Requires Verdict of Not Guilty to All Offenses. —

The existence of the elements of a perfect right of self-defense requires a verdict of not guilty, not only as to the charge of murder in the first degree but as to all lesser included offenses as well. State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Vaughan, 59 N.C. App. 318, 296 S.E.2d 516, 1982 N.C. App. LEXIS 3106 (1982), cert. denied, 461 U.S. 943, 103 S. Ct. 2120, 77 L. Ed. 2d 1301, 1983 U.S. LEXIS 219 (1983).

“Without justification or excuse” as an element of murder in the first or second degree means the defendant did not believe it was necessary to kill the victim in order to save herself from death, or great bodily harm; or, if she did believe this, her belief under the circumstances as they appeared to her at that time was unreasonable. State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981).

Right Is Based on Real or Apparent Necessity. —

The right to kill in self-defense of one’s family or habitation, rests upon necessity, real or apparent. State v. Todd, 264 N.C. 524 , 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965); State v. Jackson, 284 N.C. 383 , 200 S.E.2d 596, 1973 N.C. LEXIS 870 (1973).

One may kill in defense of himself, or his family, when necessary to prevent death or great bodily harm, or when it is not actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. State v. Todd, 264 N.C. 524 , 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965).

The right to act in self-defense is based upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. State v. Deck, 285 N.C. 209 , 203 S.E.2d 830, 1974 N.C. LEXIS 937 (1974).

Where the jury finds that the defendant intended to kill and inflicted injuries, for defendant to be completely absolved, the jury must find that he acted in self-defense against actual or apparent danger of death or greater bodily harm. State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554, 1975 N.C. App. LEXIS 1876 (1975), cert. denied, 289 N.C. 141 , 220 S.E.2d 799, 1976 N.C. LEXIS 1233 (1976).

Where the jury finds that the defendant did not intend to kill, the defendant is privileged by the law of self-defense to use such force against the other as is actually or reasonably necessary under the circumstances to protect himself from bodily injury or offensive physical contact at the hands of the other, even though he is not thereby put in actual or apparent danger of death or great bodily harm. State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554, 1975 N.C. App. LEXIS 1876 (1975), cert. denied, 289 N.C. 141 , 220 S.E.2d 799, 1976 N.C. LEXIS 1233 (1976).

Trial court did not err in instructing the jury that it could find that defendant acted in self-defense only if defendant reasonably believed that under the circumstances it was necessary “to kill” the victims. State v. Richardson, 341 N.C. 585 , 461 S.E.2d 724, 1995 N.C. LEXIS 413 (1995).

Defendant Must Not Have Initiated or Provoked the Dispute. —

Self-defense requires, among other things, that the one invoking the defense be without fault in initiating the affray. It must also be shown that the killing was necessary or appeared to be necessary to prevent death or great bodily harm to defendant. State v. Mays, 14 N.C. App. 90, 187 S.E.2d 479, 1972 N.C. App. LEXIS 2043 , cert. denied, 281 N.C. 157 , 188 S.E.2d 366, 1972 N.C. LEXIS 1035 (1972); State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

The right to kill another in self-defense may be forfeited not only by physical aggression on the accused’s part but by conduct provoking the fatal encounter. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

And Must Not Be at Fault in Engaging in or Continuing the Difficulty. —

A person is justified in defending himself if he is without fault in provoking, or engaging in, or continuing a difficulty with another. State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554, 1975 N.C. App. LEXIS 1876 (1975), cert. denied, 289 N.C. 141 , 220 S.E.2d 799, 1976 N.C. LEXIS 1233 (1976).

Aggressor Is Guilty of Murder If He Intended to Kill or Seriously Injure. —

If one takes life, though in defense of his own life, in a quarrel which he himself has commenced with intent to take life or inflict serious bodily harm, the jeopardy in which he has been placed by the act of his adversary constitutes no defense whatever, but he is guilty of murder. But, if he commenced the quarrel with no intent to take life or inflict grievous bodily harm, then he is not acquitted of all responsibility for the affray which arose from his own act, but his offense is reduced from murder to manslaughter. State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978); State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Cooke, 306 N.C. 117 , 291 S.E.2d 649, 1982 N.C. LEXIS 1373 (1982).

Although a party is privileged to use deadly force to defend against an attack by unarmed assailants of vastly superior size, strength or number, if the defendant precipitated the altercation intending to provoke a deadly assault by the victim in order that he might kill him, his subsequent killing of the victim in response to the attack is murder. State v. Sanders, 295 N.C. 361 , 245 S.E.2d 674, 1978 N.C. LEXIS 888 (1978).

Aggressor Loses Benefit of Perfect Self-Defense. —

An accused who, though otherwise acting in self-defense, is the aggressor in bringing on the affray is guilty at least of voluntary manslaughter. The defendant, under such circumstances, “loses the benefit of perfect self-defense.” State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978).

But Has an Imperfect Right of Self-Defense. —

An imperfect right of self-defense is available to a defendant who reasonably believes it is necessary to kill the deceased to save himself from death or great bodily harm even if defendant (1) might have brought on the difficulty, provided he did so without murderous intent, and (2) might have used excessive force. State v. Mize, 316 N.C. 48 , 340 S.E.2d 439, 1986 N.C. LEXIS 1886 (1986).

Except in special circumstances, self-defense is not an available defense to felony murder. State v. Moore, 339 N.C. 456 , 451 S.E.2d 232, 1994 N.C. LEXIS 716 (1994).

Self-Defense and Felony Murder. —

Absent (i) a reasonable basis upon which the jury may have disbelieved the prosecution’s evidence of the underlying felony; (ii) a factual showing that defendant clearly articulated his intent to withdraw from the situation; or (iii) a factual showing that at the time of the violence the dangerous situation no longer existed, defendant has forfeited his right to claim self-defense as a defense to felony murder. State v. Bell, 338 N.C. 363 , 450 S.E.2d 710, 1994 N.C. LEXIS 711 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861, 1995 U.S. LEXIS 4361 (1995), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

And Is Guilty at Least of Manslaughter. —

If defendant believed it was necessary to kill the deceased in order to save herself from death or great bodily harm, and if defendant’s belief was reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, but defendant, although without murderous intent, was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the imperfect right of self-defense, having lost the benefit of perfect self-defense, and is guilty at least of voluntary manslaughter. State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Vaughan, 59 N.C. App. 318, 296 S.E.2d 516, 1982 N.C. App. LEXIS 3106 (1982), cert. denied, 461 U.S. 943, 103 S. Ct. 2120, 77 L. Ed. 2d 1301, 1983 U.S. LEXIS 219 (1983).

Where the issue in a homicide case narrows to the exercise of either the perfect or imperfect right of self-defense, as the jury may find, the question for the jury is not limited to whether defendant is guilty of first-degree murder or not guilty by reason of self-defense. When the defendant has exercised the imperfect right of self-defense, the homicide is reduced from murder to manslaughter. State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981).

Unless He Quits the Combat. —

A defendant, prosecuted for homicide in a difficulty which he had himself wrongfully provoked, may not maintain the position of perfect self-defense unless, at a time prior to the killing, he had quitted the combat. State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978).

A defendant, prosecuted for a homicide in a situation that he has provoked by the use of language “calculated and intended” to bring on the encounter, cannot maintain the position of perfect self-defense unless, at a time prior to the killing, he withdrew from the encounter within the meaning of the law. State v. Watson, 287 N.C. 147 , 214 S.E.2d 85, 1975 N.C. LEXIS 1073 (1975).

In order that the right of self-defense may be restored to a person who has provoked or commenced a combat, he must attempt in good faith to withdraw from the combat. He must also in some manner make known his intention to his adversary; and if the circumstances are such that he cannot notify his adversary, as where the injuries inflicted by him are such as to deprive his adversary of his capacity to receive impressions concerning his assailant’s design and endeavor to cease further combat, it is the assailant’s fault and he must bear the consequences. As long as a person keeps his gun in his hand prepared to shoot, the person opposing him is not expected or required to accept any act or statement as indicative of an intent to discontinue the assault. State v. Winford, 279 N.C. 58 , 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971).

Instruction as to Precipitation of Fight or Assault. —

In a prosecution for the murder of a military policeman while defendant was in a holding cell after having been illegally arrested, trial court’s instruction, dealing with the right to kill in self-defense, that “one enters a fight voluntarily if he uses toward his opponent such abusive language which considering all of the circumstances is calculated and intended to bring on a fight, and if a person precipitates an altercation or a fight with the intent to provoke a deadly assault by the victim in order that he might kill him the subsequent killing of the victim in response to the attack is murder” was a correct statement of the law and was supported by the evidence. State v. Sanders, 303 N.C. 608 , 281 S.E.2d 7, 1981 N.C. LEXIS 1201 , cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392, 1981 U.S. LEXIS 4315 (1981).

Amount of Force Used. —

If the defendant in killing the deceased was acting in self-defense but used more force than was necessary or reasonably appeared necessary under the circumstances, he is guilty of voluntary manslaughter. State v. Burden, 36 N.C. App. 332, 244 S.E.2d 204, 1978 N.C. App. LEXIS 2476 , cert. denied, 295 N.C. 468 , 246 S.E.2d 216, 1978 N.C. LEXIS 913 (1978).

The defense of habitation or domicile is limited to those cases where a defendant is attempting to prevent a forcible entry into his home. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406, 1980 N.C. App. LEXIS 2919 (1980).

For a case reviewing the law of the defense of habitation, and the distinction between the defense of habitation and ordinary self-defense, see State v. McCombs, 297 N.C. 151 , 253 S.E.2d 906, 1979 N.C. LEXIS 1139 (1979).

Under the evidence, the trial court in a second-degree murder case erred in failing to charge the jury on defense of habitation. State v. Hedgepeth, 46 N.C. App. 569, 265 S.E.2d 413, 1980 N.C. App. LEXIS 2839 (1980).

Neither permanency of residence nor a leasehold interest in the premises is required before a person is legally justified in standing her ground, rather than retreating, before using deadly force in self-defense. One must show only that she is a member of a household, however temporarily, and that she possesses an intent to reside in that particular place at the time of the attack. State v. Stevenson, 81 N.C. App. 409, 344 S.E.2d 334, 1986 N.C. App. LEXIS 2315 (1986).

When a person who is free from fault in bringing on a difficulty is attacked in his own home or on his own premises, the law imposes on him no duty to retreat before he can justify his fighting in self-defense, regardless of the character of the assault, but he is entitled to stand his ground, to repel force with force, and to increase his force, so as not only to resist, but also to overcome the assault and secure himself from all harm. This, of course, would not excuse the defendant if he used excessive force in repelling the attack and overcoming his adversary. This rule applies even when both defendant and victim reside in the same dwelling. State v. Hearn, 89 N.C. App. 103, 365 S.E.2d 206, 1988 N.C. App. LEXIS 240 (1988).

For discussion of defense of habitation, see State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, 1988 N.C. App. LEXIS 449 , writ denied, 322 N.C. 484 , 370 S.E.2d 237, 1988 N.C. LEXIS 318 (1988).

Once an assailant gains entry into an occupied dwelling, the usual rules of self-defense replace the rules governing defense of habitation. State v. Roberson, 90 N.C. App. 219, 368 S.E.2d 3, 1988 N.C. App. LEXIS 449 , writ denied, 322 N.C. 484 , 370 S.E.2d 237, 1988 N.C. LEXIS 318 (1988).

Use of Force in Resisting Unlawful Arrest. —

In a prosecution for the murder of a military policeman while defendant was in a holding cell after he had been unlawfully arrested, trial court did not err in failing to charge that defendant was entitled to use deadly force if such was required to prevent the arrest or to free himself from unlawful confinement, since the victim of an unlawful arrest is not ipso facto entitled to kill or to use deadly force against the person attempting arrest. State v. Sanders, 303 N.C. 608 , 281 S.E.2d 7, 1981 N.C. LEXIS 1201 , cert. denied, 454 U.S. 973, 102 S. Ct. 523, 70 L. Ed. 2d 392, 1981 U.S. LEXIS 4315 (1981).

Battered Spouse. —

For case declining to expand the law of self-defense so as to entitle a battered spouse who killed her intoxicated husband while he slept to jury instructions on either perfect or imperfect self-defense, see State v. Norman, 324 N.C. 253 , 378 S.E.2d 8, 1989 N.C. LEXIS 158 (1989).

Evidence of Victim’s Character. —

When self-defense is raised as a defense, the defendant may produce evidence of the victim’s character tending to show (1) that the victim was the aggressor, or (2) that defendant had a reasonable apprehension of death or bodily harm, or both. State v. Corn, 307 N.C. 79 , 296 S.E.2d 261, 1982 N.C. LEXIS 1591 (1982).

Evidence of the deceased’s violent character, whether known to the defendant or not, is admissible in a homicide case where self-defense is in issue and the State’s evidence is wholly circumstantial or the nature of the transaction is in doubt, in order to shed light on the question of which party was the first aggressor. State v. Barbour, 295 N.C. 66 , 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978); State v. Price, 301 N.C. 437 , 272 S.E.2d 103, 1980 N.C. LEXIS 1185 (1980).

Evidence as to the general moral character of the deceased is not admissible in a prosecution for homicide. State v. Vestal, 278 N.C. 561 , 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971).

It is true that upon a proper showing that the accused in a homicide case may have acted in self-defense, the jury is entitled to hear and evaluate evidence of uncommunicated threats and evidence of the general character of the victim as a violent and dangerous man; however, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of the self-defense. State v. Jones, 83 N.C. App. 593, 351 S.E.2d 122, 1986 N.C. App. LEXIS 2745 (1986).

In defendant’s murder trial, defendant was not required to make an offer of proof regarding testimony that her victim had told her former employee that he was going to “shoot up his house” that was excluded when the trial court granted the state’s motion to strike the testimony. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217 , 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

In defendant’s trial ending in her conviction for second-degree murder, evidence of her prior conduct in shooting a dog was irrelevant under G.S. 8C-1-401; the evidence was not necessary to show that defendant was knowledgeable about firearms or had used a gun in the past because defendant had admitted that she shot her victim and whether or not she knew how to use a pistol was not contested, and the evidence was irrelevant to her claim of self-defense. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217 , 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Testimony from a witness who saw defendant’s victim breaking car windows at an automobile dealership should have been admitted during her murder trial, which ended in her conviction for second-degree murder, as an essential element of her assertion of self-defense under G.S. 8C-1-405(b). State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217 , 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Erroneous exclusion of testimony from a car dealership employee who saw defendant’s victim breaking car windows at the dealership, which should have been admitted during defendant’s murder trial as evidence of the victim’s violent character, was prejudicial under G.S. 15A-1443(a) even though defendant testified to the same incident on direct and redirect examination. State v. Everett, 178 N.C. App. 44, 630 S.E.2d 703, 2006 N.C. App. LEXIS 1302 (2006), aff'd, 361 N.C. 217 , 639 S.E.2d 442, 2007 N.C. LEXIS 36 (2007).

Evidence of Acts of Violence Committed by Victim. —

In a criminal prosecution for homicide, if there is a proper showing that the accused may have acted in self-defense or some comparable justification, evidence of specific acts of violence committed by the victim is admissible. However, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of self-defense. This logically extends to defense of others. State v. Stone, 73 N.C. App. 691, 327 S.E.2d 644, 1985 N.C. App. LEXIS 3391 (1985).

If defendant seeks to offer evidence for the purpose of showing that the victim was the aggressor, it must be done through testimony concerning the victim’s general reputation for violence, but this rule does not render admissible evidence of specific acts of violence which have no connection with the homicide. State v. Corn, 307 N.C. 79 , 296 S.E.2d 261, 1982 N.C. LEXIS 1591 (1982).

Where the defendant in a homicide prosecution has offered evidence tending to show self-defense, testimony by him of specific acts of violence committed by the deceased in his presence or of which the defendant had knowledge prior to the homicide is admissible to show the deceased’s character as a violent and dangerous fighting man, in order to permit the jury to determine whether the defendant acted under a reasonable apprehension of danger to his person or his life. State v. Barbour, 295 N.C. 66 , 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978).

The trial court’s actions in excluding a witness’s testimony regarding specific acts of violence by the deceased which were not shown to be within defendant’s knowledge prior to the homicide and striking her statements as to the deceased’s violent character based solely on her personal experience were correct, since specific acts and a witness’s personal opinion are not admissible to show another person’s character as evidence of his conduct on a particular occasion. State v. Barbour, 295 N.C. 66 , 243 S.E.2d 380, 1978 N.C. LEXIS 946 (1978).

Evidence to Be Interpreted in Light Most Favorable to Defendant. —

In determining whether there was any evidence of self defense presented, the evidence must be interpreted in the light most favorable to the defendant. State v. Gappins, 320 N.C. 64 , 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Error in Preventing Defendant from Testifying About Fear for Life. —

In first-degree murder case where defendant was prevented from testifying to an essential element of self-defense, his fear for his life, this was error and the court granted a new trial. State v. Reed, 324 N.C. 535 , 379 S.E.2d 828, 1989 N.C. LEXIS 294 (1989).

The State bears the burden of proving that defendant did not act in self-defense; to survive a motion to dismiss, the State must therefore present sufficient substantial evidence which, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that defendant did not act in self-defense. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

When the issue of self-defense is raised, the State continues to have the burden of proving each element of the crime of murder in the second degree beyond a reasonable doubt. Simultaneously, the additional burden is added of proving malice based on inferences rather than presumptions. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406, 1980 N.C. App. LEXIS 2919 (1980).

The burden was on the State to prove beyond a reasonable doubt that defendant did not act in self-defense, there being evidence in the case that he did. State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978).

In a conviction of first-degree felony murder under G.S. 14-17 based on discharging a firearm into an occupied vehicle under G.S. 14-34.1 , the jury instructions did not deprive defendant of his defense of self-defense but properly placed the burden of proof on the State as to self-defense, with respect to both the degrees of homicide and as to the firing into an occupied vehicle. State v. Hunt, 198 N.C. App. 488, 680 S.E.2d 720, 2009 N.C. App. LEXIS 1344 (2009), cert. dismissed, 368 N.C. 926 , 786 S.E.2d 919, 2016 N.C. LEXIS 522 (2016).

Such Burden May Not Be Shifted to Defendant. —

On review of a conviction for second-degree murder the Supreme Court of North Carolina erred in declining to hold retroactive the rule in Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), which requires the State to establish all elements of a criminal offense beyond a reasonable doubt, and which invalidates presumptions that shift the burden of proving such elements, including self-defense, to the defendant. Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306, 1977 U.S. LEXIS 121 (1977).

Instruction Placing Burden of Proving Self-Defense on Defendant Unconstitutional. —

In a prosecution for second-degree murder, an instruction placing the burden of proving self-defense upon the defendant was constitutionally infirm, since North Carolina considers unlawfulness, or the absence of self-defense, to be an element of murder. Wynn v. Mahoney, 600 F.2d 448, 1979 U.S. App. LEXIS 13537 (4th Cir.), cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320, 1979 U.S. LEXIS 3727 (1979).

When Defendant Is Entitled to Instruction on Self-Defense. —

A defendant is entitled to an instruction on self-defense if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm. If, however, there is no evidence from which the jury reasonably could find that the defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, the defendant is not entitled to have the jury instructed on self-defense. It is for the court to determine in the first instance as a matter of law whether there is any evidence that the defendant reasonably believed it to be necessary to kill his adversary in order to protect himself from death or great bodily harm. State v. Bush, 307 N.C. 152 , 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

When the State or defendant produces evidence that defendant acted in self-defense, the question of self-defense becomes a substantial feature of the case requiring the trial judge to state and apply the law of self-defense to the facts of the case. State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

If the evidence is insufficient to evoke the doctrine of self-defense in a prosecution for first-degree murder, the trial judge is not required to give instructions on that defense even when specifically requested. State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

Where there is evidence that defendant acted in self-defense, the court must charge on this aspect, even though there is contradictory evidence by the State or discrepancies in defendant’s evidence. State v. Dooley, 285 N.C. 158 , 203 S.E.2d 815, 1974 N.C. LEXIS 930 (1974).

If the court determines as a matter of law that there is no evidence in the record from which the jury could find that the defendant reasonably could have believed it to be necessary to kill to protect himself from death or great bodily harm, then the defendant is not entitled to an instruction on self-defense. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147, 1986 N.C. App. LEXIS 2619 (1986).

A defendant is entitled to an instruction on self-defense if there is any evidence in the record which establishes that it was necessary or that it reasonably appeared to the defendant to be necessary to kill in order to protect himself from death or great bodily harm. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147, 1986 N.C. App. LEXIS 2619 (1986).

When defendant’s evidence is sufficient to support an instruction on self-defense, the instruction must be given, even though the State’s evidence is contradictory. State v. Hughes, 82 N.C. App. 724, 348 S.E.2d 147, 1986 N.C. App. LEXIS 2619 (1986).

A defendant is entitled to an instruction on perfect self defense as an excuse for a killing when evidence is presented tending to show that, at the time of the killing: (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm. State v. Gappins, 320 N.C. 64 , 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Where there is no evidence from which the jury reasonably could find that the defendant in fact believed that it was necessary to kill his adversary to protect himself from death or great bodily harm, the defendant is not entitled to have the jury instructed on self defense. State v. Blankenship, 320 N.C. 152 , 357 S.E.2d 357, 1987 N.C. LEXIS 2175 (1987); State v. Gappins, 320 N.C. 64 , 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Before defendant is entitled to an instruction on self-defense, two questions must be answered in the affirmative: (1) Is there any evidence that the defendant in fact formed a belief that it was necessary to kill her adversary in order to protect herself from death or great bodily harm, and (2) If so, was that belief reasonable? If both queries are answered in the affirmative, then an instruction on self-defense must be given. State v. Hayes, 88 N.C. App. 749, 364 S.E.2d 712, 1988 N.C. App. LEXIS 1189 , writ denied, 322 N.C. 327 , 368 S.E.2d 871, 1988 N.C. LEXIS 246 (1988).

Request Is Unnecessary. —

As the defense of self-defense was a substantial and essential feature of the case arising on defendant’s evidence, no special prayers for instructions were required, and the judge’s failure to charge with respect thereto was prejudicial error, and entitled defendant to a new trial. State v. Todd, 264 N.C. 524 , 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965).

The trial court is required to charge on self-defense, even without a special request, when, but only when, there is some construction of the evidence from which could be drawn a reasonable inference that the defendant assaulted the victim in self-defense. State v. Lewis, 27 N.C. App. 426, 219 S.E.2d 554, 1975 N.C. App. LEXIS 1876 (1975), cert. denied, 289 N.C. 141 , 220 S.E.2d 799, 1976 N.C. LEXIS 1233 (1976).

When Instruction on Imperfect Self-Defense to Be Given. —

A defendant is entitled to an instruction on imperfect self defense only if the first two elements of perfect self defense are shown to exist. State v. Gappins, 320 N.C. 64 , 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Excessive Force Basis for Imperfect Self-Defense. —

Whether defendant used excessive force is a question for the jury to determine; thus, the trial court properly instructed jury that if it found defendant to have used excessive force in defending himself, he was entitled, at most, to the defense of imperfect self-defense. State v. Bell, 338 N.C. 363 , 450 S.E.2d 710, 1994 N.C. LEXIS 711 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861, 1995 U.S. LEXIS 4361 (1995), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

Instruction on Defense of Another. —

North Carolina law recognizes that a person may not only take life in his own defense, but he may also do so in defense of another who stands in a family relation to him. The failure to instruct the jury on this fundamental issue constitutes prejudicial error. State v. Spencer, 21 N.C. App. 445, 204 S.E.2d 552, 1974 N.C. App. LEXIS 1832 (1974).

Instruction on Self-Defense Required. —

Where the State’s evidence presented testimony which would have permitted, but not required, the jury to find that: (1) Defendant was without fault in bringing on the difficulty, (2) deceased was armed with and first assaulted defendant with a deadly weapon, (3) the fatal blow was struck during a struggle for the weapon first used by the deceased and (4) the defendant used such force as was necessary or as appeared to him to be necessary to save himself from death or great bodily harm, the evidence was sufficient to require the trial judge to state and apply the law of self-defense to the facts of the case and the court’s failure to so do constituted prejudicial error. State v. Deck, 285 N.C. 209 , 203 S.E.2d 830, 1974 N.C. LEXIS 937 (1974).

Defendant on trial for second degree murder held entitled to an instruction on self-defense. State v. Hayes, 88 N.C. App. 749, 364 S.E.2d 712, 1988 N.C. App. LEXIS 1189 , writ denied, 322 N.C. 327 , 368 S.E.2d 871, 1988 N.C. LEXIS 246 (1988).

Where there was testimony that 1) defendant and decedent resided in the same house; 2) defendant loaded a gun in fear that decedent’s father was coming to the house to “cut” her; 3) defendant saw decedent approaching the house with what appeared to her to be a pipe or tire iron in his hand; 4) decedent and defendant argued and decedent threatened defendant’s life; and 5) defendant shot decedent as he was coming at her with a pipe raised in his hand, it was error for the court to fail to submit the question and to charge upon defendant’s right to stand her ground without retreating. State v. Hearn, 89 N.C. App. 103, 365 S.E.2d 206, 1988 N.C. App. LEXIS 240 (1988) (distinguishing) State v. Bennett, 67 N.C. App. 407, 313 S.E.2d 277, 1984 N.C. App. LEXIS 3073 (1984) (which held that a trial court’s refusal to instruct the jury that there was no duty to retreat was not in error because there was uncontradicted evidence that defendant was the initial aggressor) .

Defendant who undeniably was the aggressor in the final confrontation when he went to victim’s trailer about 3 a.m., woke him, and shot him to death, believing it necessary to kill victim before victim killed him, was not entitled to an instruction on the doctrine of imperfect self-defense, because he was the aggressor with murderous intent in the fatal confrontation. State v. Mize, 316 N.C. 48 , 340 S.E.2d 439, 1986 N.C. LEXIS 1886 (1986).

In a prosecution for first-degree murder, evidence of powder burns on defendant’s hands, which at most permitted an inference that defendant struggled for possession of the murder weapon before the fatal shots were fired, was insufficient to require an instruction to the jury on self-defense. State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

The trial court was correct in refusing to instruct the jury on either perfect or imperfect self defense, where the defendant’s evidence tended to show that the shooting was an accident. State v. Blankenship, 320 N.C. 152 , 357 S.E.2d 357, 1987 N.C. LEXIS 2175 (1987).

Where evidence clearly tended to show that defendant was the aggressor the court did not err by instructing jury that self-defense would not be available to defendant if he were found to be aggressor. State v. Williams, 100 N.C. App. 567, 397 S.E.2d 364, 1990 N.C. App. LEXIS 1077 (1990), cert. dismissed, 328 N.C. 576 , 403 S.E.2d 520, 1991 N.C. LEXIS 274 (1991).

Court did not err by refusing to give jury instruction concerning right of a person who is without fault in a situation to stand his ground, with no duty to retreat, when in his own home where there was no evidence suggesting that defendant was assaulted or attacked by victim at time of shooting. State v. Williams, 100 N.C. App. 567, 397 S.E.2d 364, 1990 N.C. App. LEXIS 1077 (1990), cert. dismissed, 328 N.C. 576 , 403 S.E.2d 520, 1991 N.C. LEXIS 274 (1991).

Defendant was awarded a new trial on charges of second degree murder because there was testimony from the prosecution’s witnesses that defendant returned fire only after a person in the car shot at defendant. According to such evidence, defendant was not the initial aggressor and his right to stand his ground was at least a substantial feature of his defense of self-defense; because this instructional error had a probable impact on the jury’s finding of guilt, the error was prejudicial, the trial court’s failure to give the instruction was thus plain error. State v. Davis, 177 N.C. App. 98, 627 S.E.2d 474, 2006 N.C. App. LEXIS 696 (2006).

Instruction on Self-Defense Not Required. —

Where defendant did not testify and presented absolutely no evidence, either circumstantial or direct, which would establish the necessity of his killing the victim but, instead, defendant relied on permissible inferences from testimony elicited on cross-examination of the State’s witnesses; and where the evidence established that defendant, at some point, introduced a knife into the fight and stabbed the victim, the trial court’s decision not to give an instruction on self-defense was proper. State v. Stone, 104 N.C. App. 448, 409 S.E.2d 719, 1991 N.C. App. LEXIS 1063 (1991).

If there is no evidence from which a jury reasonably could find that the defendant in fact believed that it was necessary to kill to protect another from death or great bodily harm, the defendant is not entitled to have the jury instructed on either perfect or imperfect defense of another. State v. Perry, 338 N.C. 457 , 450 S.E.2d 471, 1994 N.C. LEXIS 713 (1994).

Trial court did not err in declining defendant’s request to instruct the jury on either the affirmative defense of perfect self-defense or imperfect self-defense because defendant’s own depictions of his act of killing the victim as an accident, his decision to obtain a knife due to being motivated by fear, and his intention to use the knife to persuade the victim to leave his premises established it was not appropriate for defendant to receive the benefit of an instruction on self-defense. State v. Harvey, 372 N.C. 304 , 828 S.E.2d 481, 2019 N.C. LEXIS 522 (2019).

Requirements for a jury instruction on self-defense did not exist; defendant failed to present evidence that he formed a reasonable belief that it was necessary for him to fatally stab the victim in order for defendant to protect himself from death or great bodily harm because there was no evidence from which a jury could reasonably make such a finding so as to entitle defendant to have the jury to be instructed on self-defense. State v. Harvey, 372 N.C. 304 , 828 S.E.2d 481, 2019 N.C. LEXIS 522 (2019).

Defendant’s testimony that he did not recall shooting the victim, combined with his expert’s testimony that defendant acted involuntarily, defeated his self-defense argument, and the trial court did not err in instructing the jury that it could not find defendant guilty if he was not able to exercise voluntary control of his actions. State v. Yarborough, 271 N.C. App. 159, 843 S.E.2d 454, 2020 N.C. App. LEXIS 307 (2020).

Instructions as to Implication from Use of Deadly Weapon. —

Jury instructions in a first degree murder case, that told the jury that if they found that defendant killed victim intentionally with a deadly weapon, it was “implied in law” that the killing was done with malice, constituted prejudicial error, as they essentially eliminated his defense of self-defense from trial. Bush v. Stephenson, 669 F. Supp. 1322, 1986 U.S. Dist. LEXIS 21582 (E.D.N.C. 1986), aff'd, 826 F.2d 1059, 1987 U.S. App. LEXIS 10654 (4th Cir. 1987).

Where jury could have logically deduced from instruction of self-defense that defendant was under a duty to retreat in his own home if the assault upon him was not murderous, defendant deserved a new trial due to error in the charge. State v. Boswell, 24 N.C. App. 94, 210 S.E.2d 129, 1974 N.C. App. LEXIS 1936 (1974).

Questions for Jury. —

The reasonableness of defendant’s belief that self-defense is necessary is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time of the killing. State v. Deck, 285 N.C. 209 , 203 S.E.2d 830, 1974 N.C. LEXIS 937 (1974); State v. Davis, 289 N.C. 500 , 223 S.E.2d 296, 1976 N.C. LEXIS 1326 , vacated in part, 429 U.S. 809, 97 S. Ct. 47, 50 L. Ed. 2d 69 (1976).

The jury is permitted to consider all facts and circumstances, including evidence of self-defense, in determining whether a killing was unlawful. State v. McLaurin, 46 N.C. App. 746, 266 S.E.2d 406, 1980 N.C. App. LEXIS 2919 (1980).

The evidence was not sufficient to warrant an instruction on either perfect or imperfect self-defense where defendant failed to present evidence to support a finding that he in fact formed a belief that it was necessary to kill the victim in order to protect himself from death or great bodily harm, nor was there evidence that if defendant had formed such a belief, the belief was reasonable under the circumstances; defendant’s own statement acknowledged that the victim was unarmed and walking away from defendant when defendant shot him in the back, and thus, defendant was not facing an imminent threat of death or great bodily harm from the victim when defendant fired the fatal shot. State v. Ross, 338 N.C. 280 , 449 S.E.2d 556, 1994 N.C. LEXIS 652 (1994).

Defendant was not entitled to instruction on voluntary manslaughter based on imperfect self-defense where the evidence showed defendant shot the unarmed victim in the back as the victim was walking away from defendant. There was no evidence that defendant believed it necessary to kill the victim in order to save himself, and if defendant had presented evidence of such a belief, the belief would not have been reasonable under the circumstances. State v. Exxum, 338 N.C. 297 , 449 S.E.2d 554, 1994 N.C. LEXIS 641 (1994).

VII.Evidence
A.In General

Circumstantial Evidence Is Admissible. —

Circumstantial evidence may be used in homicide cases to establish the cause of death and the criminal agency. State v. Lawson, 6 N.C. App. 1, 169 S.E.2d 265, 1969 N.C. App. LEXIS 1129 (1969).

Circumstances immediately connected with the killing by the defendant, the viciousness and depravity of his acts and conduct attending the killing, are evidence of malice and are properly considered. State v. Fleming, 296 N.C. 559 , 251 S.E.2d 430, 1979 N.C. LEXIS 1198 (1979).

And May Be Used to Prove Corpus Delicti. —

The death, the felonious cause of death, and the identification of an accused as the person who caused the death can all be shown by circumstances from which these facts might reasonably be inferred. If the evidence is only circumstantial, it should be so strong and cogent that there can be no doubt of the death. State v. Head, 79 N.C. App. 1, 338 S.E.2d 908, 1986 N.C. App. LEXIS 1991 (1986).

But circumstantial evidence must exclude every reasonable hypothesis of innocence. See State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Applicability of Reasonable Doubt Standard to Circumstantial Evidence. —

The convincing effect of circumstantial evidence on the mind of the jury is measured by the same standard of intensity required of any other evidence: the jury must be convinced beyond a reasonable doubt as to every element of the crime before they find the defendant guilty of it, whether the evidence is wholly circumstantial, only partly so, or entirely direct. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Defendant cannot deprive State of right to show all the circumstances of homicide by admitting the bare facts as to identity, the location where the body was found, its general condition and the cause of death. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Failure to Produce or Contradict Evidence. —

Although the defendant’s failure to take the stand and deny the charges against him may not be the subject of comment, the defendant’s failure to produce exculpatory evidence or to contradict evidence presented by the State may properly be brought to the jury’s attention by the State in its closing argument. State v. Taylor, 337 N.C. 597 , 447 S.E.2d 360, 1994 N.C. LEXIS 496 (1994), cert. denied, 533 S.E.2d 475, 1999 N.C. LEXIS 174 (N.C. 1999).

Improper Reference to Defendant’s Silence. —

Because the State wrongfully referred to the defendant’s silence in the face of the agent’s accusation of murder, and it allowed the jury to infer guilt and lack of remorse through defendant’s exercise of his constitutional right to silence, the testimony should have been excluded. State v. Quick, 337 N.C. 359 , 446 S.E.2d 535, 1994 N.C. LEXIS 406 (1994).

Proper Reference to Defendant’s Silence. —

The defendant’s pre-Miranda right to counsel could be used against him in his murder trial; in other words, his refusal to speak with a youth detective without his lawyer could be used to rebut his earlier voluntary statement that he “didn’t mean to do it.” State v. Salmon, 140 N.C. App. 567, 537 S.E.2d 829, 2000 N.C. App. LEXIS 1242 (2000).

Where a prosecutor, during cross-examination in a second-degree murder trial, questioned defendant on the reason for omitting from a voluntary discussion with a deputy such important facts as that the victim had been drunk, was possibly on cocaine, and had threatened defendant’s life several times prior to the shooting, defendant’s right to remain silent was not violated, because the cross-examination questions did not constitute an impermissible comment upon the invocation of the right, and any error was harmless. State v. Ezzell, 182 N.C. App. 417, 642 S.E.2d 274, 2007 N.C. App. LEXIS 695 (2007).

Instruction as to Circumstantial Evidence. —

While circumstantial evidence is sufficient to justify a conviction when, and only when, the circumstances proved are consistent with the hypothesis of guilt and inconsistent with every other reasonable hypothesis, no set form of words is required to be used in conveying to the jury this rule relating to the degree of proof required for conviction upon circumstantial evidence. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

In the absence of a request to do so, the failure of the court to instruct the jury regarding circumstantial evidence, or as to what such evidence should show, will not be held for reversible error, if the charge is correct in all other respects as to the burden and measure of proof. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Evidence Favorable to Defendant. —

In defendant’s trial on charges of conspiracy to commit first degree murder, attempted first degree murder, and assault with a deadly weapon with intent to kill, the State did not have a duty to locate evidence favorable to defendant and the trial court did not err by denying defendant’s request that the State determine the identities of mental health professionals who were treating a prosecution witness and to provide defendant with that information, or by denying defendant access to mental health records concerning the witness that were made available to the court, after the court reviewed those records in camera and decided they did not contain exculpatory information. State v. Lynn, 157 N.C. App. 217, 578 S.E.2d 628, 2003 N.C. App. LEXIS 533 (2003).

Exculpatory Statements. —

It is well established that when the State introduces into evidence a defendant’s confession containing exculpatory statements which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by the exculpatory statements. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

A defendant’s statement was not exculpatory where it in no way indicated that defendant was provoked to shoot or that his action was reflexive. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

Inculpatory Statements Admitted Where Voluntarily Made. —

Defendant’s motion to suppress post-arrest inculpatory statements was properly denied in his trial for first-degree murder and for robbery with a dangerous weapon where the totality of the circumstances indicated that defendant had voluntarily made the statements, that his waiver of his Miranda rights was voluntary, intelligent, and knowingly made, that he never asked for counsel, that the conditions of the interview were of a non-coercive nature, that he was not on any substance or in need of food or bathroom breaks, and the fact that he had subnormal mental capacity did not, alone, render the statement incompetent; accordingly, there was no violation of his rights under U.S. Const. amend. V or N.C. Const. Art. I, § 23 and suppression of his statements was not required. State v. Mahatha, 157 N.C. App. 183, 578 S.E.2d 617, 2003 N.C. App. LEXIS 539 (2003).

Expert Testimony. —

Expert testimony was properly excluded where it would have directed the jury’s attention away from defendant’s actual conduct and confused it with evidence unrelated to the legality of the arrest or the force the officers used in attempting to apprehend defendant. State v. Harden, 344 N.C. 542 , 476 S.E.2d 658, 1996 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

Expert Medical Testimony — Child Abuse. —

Testimony of a physician in a prosecution for the murder of a two-year-old child that the bruises on the child’s chest did not form the typical bruising pattern normally sustained by children in day-to-day activities, and the opinion of another physician that the child was a “battered” child, and his explanation of that term, were well within the bounds of permissible expert medical testimony. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

In a prosecution of defendant for the murder of his 18-month-old step-daughter, the trial court did not err in admitting the testimony of three doctors who opined that decedent’s injury was probably not caused by a fall down a flight of stairs, since all three medical experts were in a better position to have an opinion on the cause of the deceased’s injuries than the jury because of their medical training and their experience in observing and treating skull fractures; the witnesses stated only their opinions as to the possibilities, not the certainties, of the cause of deceased’s injuries; and none of the three experts made any statement as to their opinion of defendant’s guilt or innocence. State v. Brown, 300 N.C. 731 , 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980).

Same — Bite Marks. —

In a prosecution for first-degree murder, the trial court did not err in allowing an expert witness to testify that bite marks appearing on victim’s body were made by defendant’s teeth, since the expert witness did not rely on untested methods or unproved hypotheses, but applied scientifically established techniques of dentistry and photography to determine whether the bite marks were caused by defendant’s teeth. State v. Temple, 302 N.C. 1 , 273 S.E.2d 273, 1981 N.C. LEXIS 1017 (1981).

Same — Cause of Death. —

In a prosecution for murder, the witness’s position as assistant medical examiner and his testimony regarding the number of other cases he had seen indicated sufficient expertise such that the trial court did not err in admitting his opinion of the cause of death. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

Same — Intent to Kill. —

Admission of psychiatrist’s testimony with respect to defendant’s specific intent to kill was reversible error. However, where the jury found that defendant was guilty of murder in the first degree both under the theory of premeditation and deliberation and under the theory of felony murder, only the jury’s finding that defendant was guilty of murder based on premeditation and deliberation would be set aside. State v. Johnson, 317 N.C. 343 , 346 S.E.2d 596, 1986 N.C. LEXIS 2426 (1986) (decided under the law as it obtained prior to the effective date of Chapter 8C).

Testimony of expert for the State that defendant was capable of forming the specific intent to kill was not error. State v. Hedgepeth, 330 N.C. 38 , 409 S.E.2d 309, 1991 N.C. LEXIS 663 (1991).

Doctor’s testimony regarding the manner and duration of death by strangulation was competent, admissible, and relevant to show the manner and means by which the killing was carried out, with respect to whether the killing was a premeditated and deliberate murder. State v. Drayton, 323 N.C. 585 , 374 S.E.2d 262, 1988 N.C. LEXIS 701 (1988).

Evidence Sufficient to Prove Accessory Before the Fact. —

Evidence held sufficient to convict defendant of being an accessory before the fact to murder committed by his teenage girlfriend by burning her grandparents’ house. State v. Johnson, 340 N.C. 32 , 455 S.E.2d 644, 1995 N.C. LEXIS 151 (1995).

Evidence of Killing in Perpetration of Felony. —

In a prosecution for murder in the first degree, testimony that in his voluntary confession defendant stated he entered deceased’s house to rape her was competent to show that killing was done in perpetration or attempt to perpetrate rape, which constitutes murder in first degree without proof of premeditation and deliberation. State v. King, 226 N.C. 241 , 37 S.E.2d 684, 1946 N.C. LEXIS 430 (1946).

Evidence tending to show that the prisoner killed the deceased in the perpetration or attempt to perpetrate a robbery is expressly made competent by this section and may be considered by the jury in determining the degree of crime, and whether the accused committed the highest felony or one of lower degree. State v. Westmoreland, 181 N.C. 590 , 107 S.E. 438, 1921 N.C. LEXIS 156 (1921).

Proving Premeditation and Deliberation. —

Premeditation and deliberation ordinarily must be proved by circumstantial evidence, such as the absence of provocation by the victim, the conduct of the defendant before and after the killing, ill will or other difficulties between the parties, or evidence that the killing was done in a brutal manner. State v. Artis, 325 N.C. 278 , 384 S.E.2d 470, 1989 N.C. LEXIS 482 (1989), vacated, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604, 1990 U.S. LEXIS 1467 (1990) (in light of) State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Premeditation and Deliberation Shown. —

Fact that defendant carried a loaded .32-caliber pistol for several days prior to robbery and murder, and threatened two persons with this weapon during two armed robberies just days before he killed victim with it, supported inference of premeditation and deliberation, as did defendant’s conduct in removing money and keys from victim and money from cash register after he shot the victim while he lay bleeding on the floor. State v. Miller, 339 N.C. 663 , 455 S.E.2d 137, 1995 N.C. LEXIS 94 (1995).

Evidence of premeditation and deliberation held sufficient to support first-degree murder conviction of 14 year old defendant who killed and robbed stepfather who drank and abused his family. State v. Bunnell, 340 N.C. 74 , 455 S.E.2d 426, 1995 N.C. LEXIS 168 (1995).

Evidence held sufficient to permit a reasonable jury to find beyond a reasonable doubt that defendant shot the victim with premeditation and deliberation and was guilty of first-degree murder. State v. Baity, 340 N.C. 65 , 455 S.E.2d 621, 1995 N.C. LEXIS 165 (1995).

The fact that one of two defendants drew his pistol, pointed it at victim, a pawnshop clerk and then told him, “Don’t even try it,” prior to shooting him was sufficient evidence of premeditation and deliberation to support a charge of first-degree murder. State v. Davis, 340 N.C. 1 , 455 S.E.2d 627, 1995 N.C. LEXIS 152 , cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83, 1995 U.S. LEXIS 5843 (1995).

Each element of first-degree murder, including premeditation and deliberation, was positively supported by the evidence where the day before child was killed, defendant grabbed the crying child, swung him out over the water and only when two fishermen spotted defendant did he put him down, remarking that he would finish what he wanted to do later and on the day of the murder, defendant threatened to kill both mother and child while he physically assaulted them. State v. Walls, 342 N.C. 1 , 463 S.E.2d 738, 1995 N.C. LEXIS 537 (1995), cert. denied, 517 U.S. 1197, 116 S. Ct. 1694, 134 L. Ed. 2d 794, 1996 U.S. LEXIS 3175 (1996).

The evidence was sufficient to establish that the defendant acted with premeditation and deliberation where there was evidence of ill will between the defendant and the victim resulting from a previous altercation and the evidence showed that the defendant shot the victim six times, three of the wounds to the head, and at least one shot to the victim’s head was fired with the muzzle of the gun pressed against the victim’s skin, inflicted while the victim was lying helpless on the ground, thus showing a conscious decision on the part of the defendant to ensure that his victim was dead. State v. McCray, 342 N.C. 123 , 463 S.E.2d 176, 1995 N.C. LEXIS 534 (1995).

Where defendant shot the victim as the victim moved toward his (victim’s) truck, defendant then shot the victim several times while chasing him through the woods and shot him in the head a number of times at close range while he was helpless on the ground, and the victim was discovered face-down on the ground with his arms folded up under his face and upper body, the evidence was sufficient to warrant an instruction on premeditated and deliberate first-degree murder. State v. Gibson, 342 N.C. 142 , 463 S.E.2d 193, 1995 N.C. LEXIS 545 (1995).

The State adequately established intent, malice, premeditation and deliberation where the defendant approached the victim several hours after the two had been involved in an altercation, got out of the car, pointed a gun at him, shot at the victim, first missing and then hitting him in the leg, and then continued to approach him with an angry look on his face, only retreating at the urging of his aunt. State v. Peoples, 141 N.C. App. 115, 539 S.E.2d 25, 2000 N.C. App. LEXIS 1290 (2000).

Evidence in attempted first-degree murder conviction was sufficient to show premeditation and deliberation on defendant’s part when defendant refused to be handcuffed by an officer, struck the officer, struggled with the officer, took the officer’s handgun out of its holster after repeated attempts, aimed the handgun at the officer, and shot the officer in the hand. State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103, 2001 N.C. App. LEXIS 990 (2001).

Deliberation and premeditation in the victim’s murder were shown by the fact that defendant took a revolver to a meeting with the victim, indicative of some preparation and intent to do harm to the victim; his statement that “she was going to take my kids” demonstrated ill will or previous difficulties. State v. Williams, 151 N.C. App. 535, 566 S.E.2d 155, 2002 N.C. App. LEXIS 772 , cert. denied, 356 N.C. 313 , 571 S.E.2d 214, 2002 N.C. LEXIS 999 (2002).

In a murder prosecution, evidence of defendant’s intent to kill was sufficient when it showed: (1) ill-will between defendant and the victim, based on the warrants they had obtained against each other, (2) defendant’s statement to another that he was going to shoot the victim, (3) defendant’s statement to another that he would rather see the victim dead than with another person, and (4) defendant shot the victim twice in the back as she was attempting to flee him. State v. McClary, 157 N.C. App. 70, 577 S.E.2d 690, 2003 N.C. App. LEXIS 378 (2003).

Although the trial court erred in admitting the hearsay statements of the witness, the error was harmless under G.S. 15A-1443(b) given the presence of overwhelming evidence of premeditation required for the conviction of first-degree murder; this evidence included the fact that defendant brought the murder weapon to the residence where the murder occurred, that defendant stabbed or lacerated the victim 51 times, and that the responding police officer saw that defendant’s clothes were heavily blood stained. State v. Champion, 171 N.C. App. 716, 615 S.E.2d 366, 2005 N.C. App. LEXIS 1364 (2005).

Jury could determine deliberation and premeditation beyond a reasonable doubt to support defendant’s convictions for attempted murder and assault with a deadly weapon with intent to kill or inflicting serious injury as: (1) defendant entered the victim’s house without the victim’s permission; (2) a fight resulted when defendant broke the victim’s television, and defendant pulled a knife on the victim; (3) defendant’s girlfriend testified that ill-will had developed between defendant and the victim; (4) defendant left his house with a gun in his truck; and (5) after shooting the victim in the shoulder yelled out, “I got one now and I got one more to go.” State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409, 2007 N.C. App. LEXIS 360 (2007).

In a case in which a jury convicted defendant of first degree murder of victim A, defendant unsuccessfully argued that the court erred in denying his motion to dismiss the charge of first degree murder on the grounds that the evidence was insufficient to establish every element of the crime. Defendant killed victim A after advancing from his hide-out in a wooded area, going back into the home, and killing victim B; thus, the evidence showed a time lapse for reflection during which defendant decided to go back into the home armed with the victim B’s gun, and forensic evidence showed that victim A was shot twice at close range, which required multiple pulls of the trigger. State v. Stitt, 201 N.C. App. 233, 689 S.E.2d 539, 2009 N.C. App. LEXIS 2252 (2009), writ denied, 377 N.C. 557 , 857 S.E.2d 531, 2021 N.C. LEXIS 508 (2021).

Evidence was sufficient to convict defendant of first-degree murder based on premeditation and deliberation, as it established that he shot the victim eight times, that there was no provocation, and that he went to the victim’s home with the express purpose of committing robbery. State v. Rogers, 227 N.C. App. 617, 742 S.E.2d 622, 2013 N.C. App. LEXIS 613 (2013).

Trial court did not err by denying defendant’s motion to dismiss a first degree murder charge based upon the theory of premeditation and deliberation because the State of North Carolina presented sufficient evidence to put the issue of premeditation and deliberation before the jury as the evidence showed that defendant got a ride to where the victim was, approached the car wherein defendant was seated, exchanged words with the driver, pulled out a gun, opened a car door, shot the unarmed victim four time, and fled the scene. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486, 2015 N.C. App. LEXIS 449 (2015).

State provided evidence through the witness’s testimony that defendant had multiple conversations with the witness in which he requested the witness to kill the victim, gave the witness a detailed map of the victim’s house and the surrounding area, provided the witness with two detailed suggestions as to how to the victim and offered to kill the witness’s girlfriend upon his own release if the witness killed the victim; this evidence established each and every element of solicitation to commit first-degree murder. State v. Strickland, 2022-NCCOA-299, 2022 N.C. App. LEXIS 314 (May 3, 2022).

Even assuming arguendo that an instruction on flight was improper, it did not prejudice defendant; evidence that a bullet from defendant’s gun went through the victim’s abdomen and lodged in his underwear, combined with defendant’s own confession to law enforcement, provided overwhelming evidence that defendant committed a murder. In addition, the trial court’s instruction correctly informed the jury that proof of flight was not sufficient by itself to establish guilt and would not be considered as tending to show premeditation and deliberation. State v. Taylor, 362 N.C. 514 , 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Evidence of Prior Crime as Indicative of Intent. —

Evidence of the defendant’s participation in a prior armed robbery is admissible for the purpose of showing intent in a prosecution for murder committed during the perpetration or attempted perpetration of a robbery. State v. May, 292 N.C. 644 , 235 S.E.2d 178, 1977 N.C. LEXIS 1167 , cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288, 1977 U.S. LEXIS 3839 (1977).

Evidence of Prior Abuse of Victim. —

Evidence that, on various occasions during approximately three and one-half years prior to her death, defendant had intentionally inflicted personal injuries upon his wife was admissible as bearing on intent, malice, motive, premeditation and deliberation on the part of the prisoner. State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969).

In a prosecution for second-degree murder, where the victim was a five-year-old child who died as a result of injuries to her head which could have been caused by a beating on one or several occasions by the defendant, previous acts of physical abuse were competent to show defendant’s predisposition to commit the violent act complained of in the indictment. Moreover, the evidence of child abuse was competent to show the state of mind necessary to establish malice, an essential element of second-degree murder. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, 1979 N.C. App. LEXIS 2267 , cert. denied, 297 N.C. 457 , 256 S.E.2d 809, 1979 N.C. LEXIS 1457 (1979), cert. denied, 444 U.S. 968, 100 S. Ct. 459, 62 L. Ed. 2d 382, 1979 U.S. LEXIS 3869 (1979).

Witness’ testimony that defendant told her he had exposed himself and masturbated in the presence of her three-year-old daughter was admissible as evidence of the defendant’s felonious intent in kidnapping 10-year-old murder victim, and was sufficient evidence to support the defendant’s conviction for first-degree murder under the felony murder theory. State v. Coffey, 326 N.C. 268 , 389 S.E.2d 48, 1990 N.C. LEXIS 119 (1990), writ denied, 421 S.E.2d 360, 1992 N.C. LEXIS 569 (N.C. 1992).

North Carolina, to prove the disputed issue of defendant’s intent to kill after defendant’s forensic psychologist testified that defendant was unable to form the specific intent to kill, elicited testimony on defendant’s prior misconduct toward his wife; thus, the psychologist’s testimony regarding the statements of defendant’s prior bad acts was properly admitted under G.S. 8C-1-404(b). State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Evidence of Prior Similar Act. —

Where defendant was on trial for murdering his 21/2 year old niece, evidence that 6 months prior defendant became angry with girlfriend’s 4 year old son and shook him and threw him into a chair which then slid and hit the wall was relevant to establish defendant’s motive and intent in shaking niece and to show absence of mistake on defendant’s part. State v. Pierce, 346 N.C. 471 , 488 S.E.2d 576, 1997 N.C. LEXIS 477 (1997).

Evidence of the disappearance of defendant’s co-worker was properly admitted in defendant’s trial for murdering his girlfriend; both women were residents of the same area, disappeared within nine months of each other, had legal, financial, and substance abuse problems, and had sustained relationships with defendant. The co-worker’s disappearance and the police investigation that followed led to the discovery of the girlfriend’s body, such that the disappearances and investigations of both were inextricably intertwined. N.C. v. Bradley, 279 N.C. App. 389, 864 S.E.2d 850, 2021- NCCOA-495, 2021 N.C. App. LEXIS 513 (2021).

Trial court did not err in admitting evidence of the disappearance of defendant’s co-worker, which led to the discovery of defendant’s girlfriend’s body; the investigations were intertwined and the evidence demonstrated how defendant targeted both of them pursuant to a common plan. N.C. v. Bradley, 279 N.C. App. 389, 864 S.E.2d 850, 2021- NCCOA-495, 2021 N.C. App. LEXIS 513 (2021).

Evidence of threats is admissible and may be offered as tending to show premeditation and deliberation, and previous express malice, which are necessary to convict of murder in the first degree. State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961).

Evidence of threats against the victim are admissible in evidence to show premeditation and deliberation. State v. Reams, 277 N.C. 391 , 178 S.E.2d 65, 1970 N.C. LEXIS 623 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74, 1971 U.S. LEXIS 1117 (1971).

In homicide cases, threats by the accused have always been freely admitted either to identify him as the killer or to disprove accident or justification, or to show premeditation and deliberation. Remoteness in time of the threat does not render the evidence incompetent, but goes only to its weight. State v. Potter, 295 N.C. 126 , 244 S.E.2d 397, 1978 N.C. LEXIS 982 (1978); State v. Sanders, 295 N.C. 361 , 245 S.E.2d 674, 1978 N.C. LEXIS 888 (1978).

General threats to kill not shown to have any reference to deceased are not admissible in evidence, but a threat to kill or injure someone not definitely designated is admissible in evidence where other facts adduced give individuation to it. State v. Faust, 254 N.C. 101 , 118 S.E.2d 769, 1961 N.C. LEXIS 412 , cert. denied, 368 U.S. 851, 82 S. Ct. 85, 7 L. Ed. 2d 49, 1961 U.S. LEXIS 646 (1961).

Uncommunicated Threats. —

Generally speaking, uncommunicated threats are not admissible in homicide cases. But there are exceptions to the rule which must be considered in light of the facts of the particular case. Such exceptions occur where the evidence has an explanatory bearing on the plea of self-defense. State v. Hurdle, 5 N.C. App. 610, 169 S.E.2d 17, 1969 N.C. App. LEXIS 1406 (1969).

In trials for homicide uncommunicated threats are admissible where they tend to throw light on the occurrence and aid the jury to a correct interpretation of the same, and there is testimony ultra sufficient to carry the case to the jury tending to show that the killing may have been done from a principle of self-preservation. State v. Hurdle, 5 N.C. App. 610, 169 S.E.2d 17, 1969 N.C. App. LEXIS 1406 (1969).

Defendant’s conviction and sentence on a charge of first-degree murder pursuant to G.S. 14-17 was upheld; the trial court properly excluded the victim’s uncommunicated threats to defendant into evidence, because defendant failed to put on evidence of self-defense as was required to admit such evidence pursuant to G.S. 8C-1 , N.C. R. Evid. 803(3), and defendant did not suffer any prejudice pursuant to G.S. 15A-1443(a) because defendant testified to substantially the same evidence that was contained in the uncommunicated threat. State v. Messick, 159 N.C. App. 232, 585 S.E.2d 392, 2003 N.C. App. LEXIS 1493 (2003).

Evidence bearing upon the atrocity of the offense and the callous disregard exhibited by the defendant toward the victim is especially relevant and material when the punishment to be imposed is to be fixed by the jury in its discretion. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Brutal or Vicious Circumstances Permitting Inference of Premeditation. —

It was not error to instruct jurors that they could infer premeditation and deliberation from the “brutal or vicious circumstances of the killing” and from defendant’s use of “grossly excessive force” where there was evidence of defendant’s use of grossly excessive force and he fired a semi-automatic rifle, fully loaded with 16 rounds, seven times at the victim, hitting his target twice. This is enough to show grossly excessive force. State v. Terry, 329 N.C. 191 , 404 S.E.2d 658, 1991 N.C. LEXIS 401 (1991).

Evidence of Private Prosecution. —

In first-degree murder prosecution, the court erred in excluding evidence that wife of deceased had employed private prosecution in the case. State v. White, 286 N.C. 395 , 211 S.E.2d 445, 1975 N.C. LEXIS 1192 (1975).

Use of Admissions Regarding Second-Degree Murder to Prove First-Degree Murder. —

Where defendant made affirmative admissions of the existence of malice and unlawfulness by admitting commission of two second-degree murders, there could not possibly be any constitutional transgressions or prejudice in the remarks of either the prosecutor or the trial court concerning the presumption of the existence of those very same elements in the charges of first-degree murder. State v. Pinch, 306 N.C. 1 , 292 S.E.2d 203, 1982 N.C. LEXIS 1386 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982), writ denied, 366 S.E.2d 868, 1988 N.C. LEXIS 183 (N.C. 1988); State v. Robinson, 336 N.C. 78 , 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), cert. denied, 513 U.S. 1089, 115 S. Ct. 750, 130 L. Ed. 2d 650, 1995 U.S. LEXIS 276 (1995); State v. Rouse, 339 N.C. 59 , 451 S.E.2d 543, 1994 N.C. LEXIS 7 19 (1994), cert. denied, 516 U.S. 832, 116 S. Ct. 107, 133 L. Ed. 2d 60, 1995 U.S. LEXIS 5654 (1995), overruled in part, State v. Hurst, 360 N.C. 181 , 624 S.E.2d 309, 2006 N.C. LEXIS 7 (2006).

Evidence of Malice from Defendant’s Statements. —

Statements by defendant that he believed the law in Anson County did not prevent the killing of blacks clearly tended to prove malice. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

Conviction Based Largely on Defendant’s Own Statements. —

Substantial evidence of first-degree murder was presented to sustain defendant’s conviction where the forensic pathologist testified that the victim could only have survived a matter of minutes after the infliction of the head wounds and where the defendant stated that he did not see anyone else in the store on the morning of the murder, that the victim was still alive when he saw him lying behind the counter, and that he picked up the stick containing the victim’s hair, blood and tissue; his own statements placed him as the person who had access to the victim, the victim’s blood, and other physical evidence, making it unnecessary for the police to match fingerprints taken in the store to defendant. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423, 2000 N.C. App. LEXIS 1397 (2000), aff'd, 354 N.C. 350 , 554 S.E.2d 644, 2001 N.C. LEXIS 1079 (2001).

Letters Showing Financial Motive to Kill Properly Admitted. —

Letters were relevant as they indicated that defendant faced financial hardships, and this, coupled with evidence that the victim had threatened to remove defendant from the home and continue to request child support, indicated that the letters made the existence of a financial motive to murder the victim more probable; the court also limited the danger of unfair prejudice by prohibiting the State from publishing to the jury letters which indicated a criminal action against defendant. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Causal Connection Between Assault and Death. —

Nonexpert testimony, even without an opinion as to the cause of death, can establish a causal connection between an assault and death sufficient to take the State’s case to the jury. State v. Luther, 21 N.C. App. 13, 203 S.E.2d 343, 1974 N.C. App. LEXIS 1698 , aff'd, 285 N.C. 570 , 206 S.E.2d 238, 1974 N.C. LEXIS 1012 (1974).

Establishing Theory of Acting in Concert. —

Where victim was murdered in her own home, evidence of an unidentified latent fingerprint in addition to those of defendant supported the jury instruction concerning the theory of acting in concert. State v. Smart, 99 N.C. App. 730, 394 S.E.2d 475, 1990 N.C. App. LEXIS 829 (1990).

Evidence of Conspiracy. —

Motion to dismiss was properly denied where the evidence showed that defendant drove through an apartment complex in a borrowed car with victim’s brother, exited the vehicle in a certain area and returned to the vehicle after gunshots, and the brother fabricated a story to police to avoid identification, there was sufficient evidence to support a finding of conspiracy to commit murder. State v. Brewton, 173 N.C. App. 323, 618 S.E.2d 850, 2005 N.C. App. LEXIS 2027 (2005), writ denied, 636 S.E.2d 812, 2006 N.C. LEXIS 1141 (N.C. 2006).

Sufficiency of Evidence to Deny Motion to Dismiss. —

Evidence tending to show defendant was the perpetrator of the homicide was sufficient to justify the trial court’s denial of defendant’s motion to dismiss. State v. Demery, 113 N.C. App. 58, 437 S.E.2d 704, 1993 N.C. App. LEXIS 1311 (1993).

In an action in which defendants appealed from a judgment of the Wayne County Court which convicted defendants of first-degree murder, there was sufficient evidence to persuade a rational trier of fact of each essential element beyond a reasonable doubt regarding the first defendant; the introduction of evidence showing that defendant said “I’m going to kill this expletive,” and that he had the gun when he pursued the victim’s car, provided sufficient evidence to support a guilty verdict. State v. Sloan, 180 N.C. App. 527, 638 S.E.2d 36, 2006 N.C. App. LEXIS 2517 (2006), aff'd, 361 N.C. 584 , 650 S.E.2d 594, 2007 N.C. LEXIS 1011 (2007).

Defendant’s motion to dismiss was properly denied as there was ample evidence that defendant shot the victim since: (1) defendant and the victim fought with each other before the shooting and defendant pulled a knife on the victim; (2) after the fight, defendant sat in defendant’s truck and pointed a gun toward the victim’s house; (3) the victim and the victim’s brother identified defendant’s voice as the voice they heard when the shooting occurred; (4) defendant’s girlfriend saw defendant leave in defendant’s truck shortly before the shooting; and (5) a .22 rifle and bullets were found in defendant’s shop. State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409, 2007 N.C. App. LEXIS 360 (2007).

Testimony that defendant and the victim wrestled for a gun, which the witness was told was a nine-millimeter, in the victim’s bedroom, that defendant was using a smaller gun to hit the victim, and the witness did not see who fired the gunshot that led to the victim’s death, was sufficient to support the denial of defendant’s motion to dismiss because it was sufficient for the jury to reasonably infer that defendant shot the victim, either with defendant’s own gun or the victim’s gun, and thus to allow the jury to conclude that defendant acted to cause the victim’s death. State v. Williams, 185 N.C. App. 318, 648 S.E.2d 896, 2007 N.C. App. LEXIS 1824 (2007).

As the State presented evidence that defendant retrieved a gun from his vehicle and intentionally fired the gun at defendant, killing him, the State presented sufficient evidence for the jury to infer malice on the part of defendant; thus, the trial court properly denied the motion to dismiss. State v. Banks, 191 N.C. App. 743, 664 S.E.2d 355, 2008 N.C. App. LEXIS 1484 (2008).

Evidence that the victim was with defendant less than 10 minutes before the victim was found; defendant was driving the victim’s car, which had blood in it; defendant bought bleach shortly after the body was found; the victim’s broken cell phones were found behind the store where defendant bought the bleach; and defendant had money with the victim’s blood on defendant was sufficient to support the denial of defendant’s motion to dismiss the first-degree murder charge. State v. Dawkins, 196 N.C. App. 719, 675 S.E.2d 402, 2009 N.C. App. LEXIS 513 (2009).

Evidence was sufficient to support defendant’s conviction of first-degree murder because it showed that: (1) after defendant and his accomplice beat and kicked the victim, he was carried into a bedroom, where he was tied with his hands and feet behind his back; (2) his neck was tied, pulled close to the legs area, and the feet and legs pulled up toward the neck area in the back area, and two pieces of tissue were inserted into his mouth; and (3) due to the severe arching of his back, the victim suffered a fracture in his thoracic spine and ultimately died from a combination of suffocation and strangulation. State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288, 2011 N.C. App. LEXIS 213 (2011).

Evidence that defendant, after being kicked in the face in a fight inside the nightclub, became angry, retrieved a 9 mm semi-automatic pistol from under the driver’s seat of his car, loaded the gun, and fired seven times toward the big crowd, resulting in the death of a police officer, was sufficient to support the trial court’s submission to the jury of a second-degree murder charge. Accordingly, the trial court did not err in denying defendant’s motion to dismiss the second-degree murder charge for insufficient evidence. State v. Carter, 212 N.C. App. 516, 711 S.E.2d 515, 2011 N.C. App. LEXIS 1175 (2011).

Substantial evidence supported a trial court’s denial of defendant’s motion to dismiss a first-degree murder charge because defendant was stopped while driving the victim’s truck, shoe prints found on the store floor under the victim, as well as, on the victim’s clothes were consistent with the soles of shoes found in defendant’s possession when he was arrested approximately 24 hours after the murder, fingerprints matching defendant’s were found in the store bathroom, and the victim’s DNA was found on the cash and shoes defendant had in his possession at the time he was arrested. State v. Kidwell, 218 N.C. App. 134, 720 S.E.2d 795, 2012 N.C. App. LEXIS 69 (2012).

There was substantial evidence to support the denial of defendant’s motion to dismiss a first-degree murder charge based on a claim that defendant had committed a premeditated and deliberate act in shooting a victim where the evidence did not demonstrate any provocation on the part of the victim, and the victim’s girlfriend testified that defendant simply walked up to the victim, shot him, and then ran. State v. Avent, 222 N.C. App. 147, 729 S.E.2d 708, 2012 N.C. App. LEXIS 948 , writ denied, 366 N.C. 397 , 736 S.E.2d 176, 2012 N.C. LEXIS 1169 (2012).

Denial of defendant’s motion to dismiss the charge of first-degree murder arising from defendant’s act of shooting his wife, which led to the later death of his child was proper because the evidence here established that the child was born alive after the shooting and lived for one month before dying; while the record supported defendant’s contention that the bullet did not strike the fetus, his insistence that the emergency cesarean section was performed solely for the safety of the mother was clearly contradicted by the record, and the record supported the conclusion that defendant’s shooting of the mother started a foreseeable chain of events that led to the child’s death. The State also provided sufficient evidence that defendant acted with premeditation and deliberation. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802, 2013 N.C. App. LEXIS 69 (2013).

Denial of defendant’s motion to dismiss the charge of attempted first-degree murder arising from defendant’s act of shooting his wife was proper because the State presented evidence that defendant removed the wife’s cell phone from her reach, left the room, returned with a .45 caliber pistol, and shot her in the abdomen with a hollow point bullet; defendant then denied the wife medical assistance for approximately twelve hours. State v. Broom, 225 N.C. App. 137, 736 S.E.2d 802, 2013 N.C. App. LEXIS 69 (2013).

To convict a defendant of first-degree murder, the State presented expert medical testimony by the forensic pathologist, and while he was unable to clinically determine a cause of death, the State presented substantial evidence from which the jury could determine that the cause was the natural result of a criminal act, given the presence of petechiae and bruising, plus the pathologist ruled out suicide, drowning, and electrocution, and defendant’s motion to dismiss was properly denied. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

There was sufficient evidence from which a reasonable inference of defendant’s guilt could be drawn, and thus the trial court did not err in denying defendant’s motion to dismiss; his financial hardships, coupled with the victim’s threat to end their relationship, were sufficient to show motive, plus he was in the home between the time that the victim returned home the night before and when her body was found the next day, and he had the means of suffocating the victim with the feather pillow found in his room. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Evidence was sufficient to support defendant’s conviction of felony murder because a reasonable juror could have concluded that defendant had motive to kill the victim based on the hostility that existed between them, defendant’s opportunity to commit the crimes was established by physical evidence at the crime scene and testimony of those who interacted with defendant near the scene shortly after the victim’s death, and it was undisputed that, regardless of who fired a weapon into the residence, it resulted in the victim’s death. State v. Gray, 261 N.C. App. 499, 820 S.E.2d 364, 2018 N.C. App. LEXIS 927 (2018).

Trial court did not err by denying defendant’s motion to dismiss based on insufficient evidence because the deputy testified that she saw defendant point a gun at her face and that she heard a gunshot after ducking behind her dashboard, and the jury could have reasonably inferred that defendant, in a conspiracy with another suspect, attempted to kill the deputy by firing a gun at her. Because intentional failure was not necessary to a charge of conspiracy to commit attempted murder, the State was not required to show that defendant intended to fail in his attempt to take the deputy’s life. State v. Lyons, 268 N.C. App. 603, 836 S.E.2d 917, 2019 N.C. App. LEXIS 974 (2019).

State’s evidence was sufficient to present the charge of first-degree murder to the jury, as the evidence showed that the victim was killed as the proximate cause of an assault with a deadly weapon, by an accomplice and defendant lying in wait to ambush the victim as he drove through the intersection. State v. Baldwin, 276 N.C. App. 368, 856 S.E.2d 897, 2021- NCCOA-97, 2021 N.C. App. LEXIS 124 (2021).

Sufficient Circumstantial Evidence. —

The State presented sufficient evidence to the jury that the defendant committed the subject crime where the evidence showed that the victim knew his assailant; that the defendant had borrowed money from the victim before; that the defendant’s behavior was suspicious to several witnesses, including his mother; that the defendant spent all his paycheck on beer and crack cocaine on the night of the murder; that, after the time of the murder, defendant returned to his friend’s house with more cocaine than he possessed before leaving and also with his shirt covered with blood; that defendant related three different stories as to how his shirt got bloody; and that a shoeprint found on the scene could be a match to the defendant’s shoe. State v. Brooks, 136 N.C. App. 124, 523 S.E.2d 704, 1999 N.C. App. LEXIS 1309 (1999).

Admissible Evidence. —

All statements made by defendant were fully authorized by the defendant and did not constitute a breach of the attorney-client privilege or any other right of the defendant and it was not error for the trial court to allow evidence of the defendant’s statements to be admitted. State v. McIntosh, 336 N.C. 517 , 444 S.E.2d 438, 1994 N.C. LEXIS 285 (1994).

In defendant’s trial on charges of first degree murder, first degree burglary, second degree kidnapping, and robbery with a dangerous weapon, the trial court properly admitted the videotaped statement that defendant’s wife gave to police, pursuant to G.S. 8C-1 , N.C. R. Evid. 804(b)(5), after defendant’s wife refused to testify for the State at defendant’s trial, properly admitted letters one of defendant’s co-conspirators wrote to a girlfriend urging the girlfriend to lie about the girlfriend’s involvement in the co-conspirator’s attempt to conceal evidence of the crime, pursuant to G.S. 8C-1 , N.C. R. Evid. 804(b)(3), (b)(5), and properly admitted evidence of similar crimes defendant committed shortly after the murder, pursuant to G.S. 8C-1, N.C. R. Evid. 404(b). State v. Carter, 156 N.C. App. 446, 577 S.E.2d 640, 2003 N.C. App. LEXIS 178 (2003), cert. denied, 358 N.C. 547 , 2004 N.C. LEXIS 1107 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 868, 160 L. Ed. 2d 784, 2005 U.S. LEXIS 565 (2005).

Evidence as to defendant’s prior convictions for driving while impaired and driving while license revoked was properly admitted, under G.S. 8C-1 , N.C. R. Evid. 404(b), as the evidence was relevant to show malice to support defendant’s charge for second degree murder following an auto accident in which defendant was driving while impaired. Further, there was no plain error in the trial court admitting evidence of defendant’s empty prescription pill bottle, testimony by an officer identifying the pills from the label, and testimony by a pharmacist about the interaction between the pills and alcohol, as the evidence was relevant to the charges against defendant. State v. Edwards, 170 N.C. App. 381, 612 S.E.2d 394, 2005 N.C. App. LEXIS 992 (2005).

Defendant’s first degree murder conviction for stabbing his wife to death was affirmed because defendant’s written waiver of his Miranda rights and written confession were made understandingly, knowingly, and voluntarily through a police officer that served as defendant’s interpreter. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Evidence permitted the inference that defendant was the aggressor at the time he shot the victim, where, although the evidence showed that the victim initially went to defendant’s home and began to argue with him, the evidence also showed that immediately before the victim was shot she was about to leave. State v. Cannon, 341 N.C. 79 , 459 S.E.2d 238, 1995 N.C. LEXIS 386 (1995).

Evidence of Prior Violent Behavior by Victim When an Accident Defense Used. —

In Defendant’s trial for second degree murder, trial court properly excluded evidence that defendant’s wife had shot her former husband, as defendant relied on a defense of accident, and the wife’s alleged violent character had no bearing on whether a rifle fired accidentally. State v. Crawford, 163 N.C. App. 122, 592 S.E.2d 719, 2004 N.C. App. LEXIS 307 (2004).

Evidence Held Sufficient to Support Conviction. —

Evidence that defendant, a gang member, (1) on one night met with other gang members to participate in an initiation of gang members, (2) participated in obtaining bullets to support gang missions, (3) asked to be allowed to shoot a victim that was abducted by other gang members, and (4) grumbled when he was not chosen to shoot and kill the victim, was sufficient to show that defendant joined with one or more persons to kidnap, rob, assault with a deadly weapon, and attempt to murder the victim, and was constructively present when the crimes were carried out. State v. Tirado, 358 N.C. 551 , 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

Evidence, including a history of violence and hostility between the parties, testimony from defendant’s girlfriend that she thought defendant was going to shoot the victim, and defendant’s DNA on a beer can, was sufficient to support defendant’s conviction for first-degree murder. State v. Hocutt, 177 N.C. App. 341, 628 S.E.2d 832, 2006 N.C. App. LEXIS 966 (2006).

Sufficient evidence supported a murder conviction where testimony revealed that defendant attacked the victim after the victim had been knocked to the ground by another, that defendant then beat the victim with a rubber mallet, that defendant then stole the shoes off the victim’s feet and fled the scene, and that during his flight, defendant stated to others “I killed him, I killed him.” State v. Yarrell, 172 N.C. App. 135, 616 S.E.2d 258, 2005 N.C. App. LEXIS 1428 (2005).

There was sufficient evidence of malice to support defendant’s second-degree murder conviction as: (1) there was evidence that defendant had consumed 9 to 12 beers in a two-hour timeframe; (2) defendant’s blood alcohol content was well-above the threshold for driving while impaired; (3) defendant got into a truck, ran over a sign and continued driving; and (4) defendant eventually ran off the road and crashed into the victims’ truck. State v. Davis, 197 N.C. App. 738, 678 S.E.2d 385, 2009 N.C. App. LEXIS 1080 (2009), aff'd in part and rev'd in part, 364 N.C. 297 , 698 S.E.2d 65, 2010 N.C. LEXIS 585 (2010).

Sufficient evidence supported defendant’s attempted first-degree murder conviction, given that defendant told the victim he would kill her if she did not follow his commands, he struck her over the head twice with his gun, he stated on the phone that he had a hostage, and when the victim tried to escape by shutting the front door, defendant shot the door near the doorknob four to six times before kicking the door and yelling. State v. Yarborough, 271 N.C. App. 159, 843 S.E.2d 454, 2020 N.C. App. LEXIS 307 (2020).

Error in admission of victim’s statements without cross-examination was harmless. —

Defendant’s conviction for first-degree murder was upheld on appeal, despite that the trial court erring by admitting the statements of two unavailable robbery victims with regard to their statements to police after the crime, which identified and implicated defendant and three others, without affording defendant the right to confrontation, because the evidence of defendant’s guilt was overwhelming, which rendered the trial court’s error harmless. State v. Allen, 171 N.C. App. 71, 614 S.E.2d 361, 2005 N.C. App. LEXIS 1186 (2005).

B.Physical Evidence

Real Evidence Must Be Properly Identified. —

Any evidence which is relevant to the trial of a criminal action is admissible but when real evidence (i.e. the object itself) is offered into evidence, it must be properly identified and offered. State v. Winford, 279 N.C. 58 , 181 S.E.2d 423, 1971 N.C. LEXIS 751 (1971).

Analysis by Expert Witness. —

In defendant’s trial on a charge of first degree murder, the trial court erred by denying defendant’s motion for a continuance so she could find an expert to analyze the State’s expert’s conclusion that there was blood splatter on defendant’s clothes which suggested that defendant was present when a victim was struck; the appellate court ordered a new trial because the State did not carry its burden of showing that the trial court’s ruling was harmless beyond a reasonable doubt. State v. Barlowe, 157 N.C. App. 249, 578 S.E.2d 660, 2003 N.C. App. LEXIS 536 (2003).

When Clothing Is Admissible. —

In cases of homicide or other crimes against the person, clothing worn by the defendant or by the victim is admissible if its appearance throws any light on the circumstances of the crime. State v. Norwood, 289 N.C. 424 , 222 S.E.2d 253, 1976 N.C. LEXIS 1295 (1976).

Clothing of Victim. —

The admission into evidence of the articles of clothing found upon a murder victim’s body was not error, where the location of the bullet holes in her dress and the presence thereon of stains, identified by an expert witness as powder burns, were material and tended to show that when the shots were fired the pistol was held close to the victim’s body. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

In a prosecution for first-degree murder, the clothing of deceased is admissible if its appearance throws any light on the circumstances of the crime. State v. Williams, 289 N.C. 439 , 222 S.E.2d 242, 1976 N.C. LEXIS 1297 , vacated in part, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69, 1976 U.S. LEXIS 2345 (1976).

Fingerprints of Codefendant. —

In the prosecution of two defendants for armed robbery and murder, there was no merit to one defendant’s contention that the trial court erred in admitting evidence of fingerprints of a codefendant found on the murder weapon as well as cards containing his fingerprints which were never linked to the murder weapon, since the evidence of the fingerprints was relevant because the State proceeded upon a theory of acting in concert, and, in criminal cases, every circumstance that is calculated to throw any light upon the supposed crime is admissible. State v. Smith, 301 N.C. 695 , 272 S.E.2d 852, 1981 N.C. LEXIS 1014 (1981).

Fruits of Plain View Seizure. —

In a prosecution of first-degree murder, where a State trooper had stopped defendants’ car for reckless driving and had subsequently observed the butt of a revolver protruding from under the center armrest, the revolver was properly admissible in evidence as the fruit of a lawful warrantless “plain view” seizure under circumstances requiring no search. State v. Smith, 289 N.C. 143 , 221 S.E.2d 247, 1976 N.C. LEXIS 1238 (1976).

Nontestimonial Identification. —

In a prosecution for first-degree murder, the trial court’s denial of defendant’s motion to suppress nontestimonial identification evidence was without error where, pursuant to an order of the trial court, fingernail scrapings, samples of defendant’s head and pubic hair, saliva samples, blood samples, and photographs of any wounds on defendant’s body were taken; the order stated defendant’s right to counsel; the State stipulated that nothing defendant said during the procedure would be offered into evidence; and defendant was fully advised of his constitutional right to the presence of counsel; and the State was not in violation of any provision of Chapter 15A, Article 14, by not procuring an express waiver from defendant, as the statute does not require an express waiver of the right to have counsel present at a nontestimonial identification procedure. State v. Temple, 302 N.C. 1 , 273 S.E.2d 273, 1981 N.C. LEXIS 1017 (1981).

Photographs — Scene of the Crime. —

In a prosecution under this section, where photographs are identified as accurate representations of the scene of the crime by the witness, the photographs are competent in evidence for the purpose of enabling the witness to explain his testimony, and a general objection to the admission of the photographs in evidence cannot be sustained. State v. Casper, 256 N.C. 99 , 122 S.E.2d 805, 1961 N.C. LEXIS 699 (1961), cert. denied, 376 U.S. 927, 84 S. Ct. 691, 11 L. Ed. 2d 622, 1964 U.S. LEXIS 1942 (1964).

Same — Body of Victim. —

There was no error in the admission of the two photographs of the body of a murder victim, the court instructing the jury that they were to be considered solely for the purpose of illustrating the testimony of the witness. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

In a prosecution for first-degree murder, a photograph is admissible for the purpose of illustrating the testimony of the doctor who examined the deceased. State v. Williams, 289 N.C. 439 , 222 S.E.2d 242, 1976 N.C. LEXIS 1297 , vacated in part, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69, 1976 U.S. LEXIS 2345 (1976).

Photographs and videotape used to illustrate testimony as to the location and condition of victim’s body, where each photograph showed something different, none was especially inflammatory, and the total amount of photographic evidence was not excessive, did not prejudice defendant, in light of the overwhelming evidence of defendant’s guilt, and in light of his receiving a sentence of life imprisonment, the minimum sentence for first-degree murder. State v. Murphy, 321 N.C. 738 , 365 S.E.2d 615, 1988 N.C. LEXIS 231 (1988).

Properly authenticated photographs of a homicide victim may be introduced into evidence even if they are gory, gruesome, horrible or revolting, so long as they are used by a witness to illustrate his testimony and so long as an excessive number of photographs are not used solely to arouse the passions of the jury. State v. Murphy, 321 N.C. 738 , 365 S.E.2d 615, 1988 N.C. LEXIS 231 (1988).

Same — Body in Casket. —

The trial court erred in a first-degree murder case in allowing the jury to be shown certain photographs of the victim’s body lying in a casket, but such error was harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant’s guilt. State v. Temple, 302 N.C. 1 , 273 S.E.2d 273, 1981 N.C. LEXIS 1017 (1981).

Same — Effect of Defendant’s Admissions. —

Photographs of the victim’s body and articles of clothing found upon it were competent notwithstanding the admission by the defendant, through his counsel, in open court, that the body was that of the victim, that it was discovered in a wooded area, partially hidden under boards and an old quilt and in a state of decomposition, and that the cause of death was five gunshot wounds in the abdomen. Notwithstanding these admissions, the circumstances with reference to the shooting of the deceased and the disposition of her body were material upon the question of the degree of the homicide and the decision as to the punishment to be inflicted, if the jury should find the defendant guilty of murder in the first degree. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

In a prosecution for first-degree murder, photographs of deceased and the clothing of deceased are admissible despite defendant’s contention that since he did not controvert the killing, the photographs and clothing were prejudicial and inflammatory, since the burden was still on the State to prove its case beyond a reasonable doubt so as to convince the jury that there had been an unlawful killing with malice and that the circumstances of the killing justified a finding of premeditation, deliberation and a specific intent to kill. State v. Williams, 289 N.C. 439 , 222 S.E.2d 242, 1976 N.C. LEXIS 1297 , vacated in part, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69, 1976 U.S. LEXIS 2345 (1976).

Same — Gruesome Character. —

If a photograph is relevant and material, the fact that it is gory or gruesome, and thus may tend to arouse prejudice, will not alone render it inadmissible. State v. Mercer, 275 N.C. 108 , 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969).

In a prosecution for homicide, photographs showing the condition of the body when found, the location where found, and the surrounding conditions at the time the body was found are not rendered incompetent by their portrayal of the gruesome spectacle and horrifying events which the witness testifies they accurately portray. State v. Atkinson, 275 N.C. 288 , 167 S.E.2d 241, 1969 N.C. LEXIS 393 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

The fact that a photograph depicts a horrible, gruesome and revolting scene, indicating a vicious, calculated act of cruelty, malice or lust, does not render the photograph incompetent in evidence, when properly authenticated. State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972).

In a prosecution for second-degree murder or involuntary manslaughter photographs depicting the way deceased looked at the hospital the night he died are not inadmissible because they were not made at the time of the event, or because they were gory or gruesome. State v. Cox, 289 N.C. 414 , 222 S.E.2d 246, 1976 N.C. LEXIS 1294 (1976).

In a prosecution for first-degree murder the fact that a photograph depicts a gruesome scene does not render it incompetent. State v. Williams, 289 N.C. 439 , 222 S.E.2d 242, 1976 N.C. LEXIS 1297 , vacated in part, 429 U.S. 809, 97 S. Ct. 45, 50 L. Ed. 2d 69, 1976 U.S. LEXIS 2345 (1976).

Same — Excessive Repetition. —

Where a prejudicial photograph is relevant, competent and therefore admissible, the admission of an excessive number of photographs depicting substantially the same scene may be sufficient ground for a new trial when the additional photographs add nothing in the way of probative value but tend solely to inflame the jurors. State v. Mercer, 275 N.C. 108 , 165 S.E.2d 328, 1969 N.C. LEXIS 354 (1969).

Map. —

In a murder trial where guilt was based on circumstantial evidence, the trial court committed reversible error in refusing to admit into evidence defendant’s proposed exhibit, a drawing found by law enforcement officers among victim’s personal effects, which included a rough map of the area surrounding defendant’s North Carolina home and numerous written notations indicating a possible larceny scheme. The exhibit was clearly relevant to a crucial issue in the case, namely, whether this defendant, and not some other person, was in fact the perpetrator of the crime, and it therefore should have been admitted into evidence at trial. State v. McElrath, 322 N.C. 1 , 366 S.E.2d 442, 1988 N.C. LEXIS 122 (1988).

Victim’s Medical Records. —

The court examined sealed medical records of the victim, which the victim’s hospital asserted as privileged under G.S. 8-53 , and concluded that they contained no information exculpatory of defendant’s guilt or material to her defense or punishment. State v. Jarrett, 137 N.C. App. 256, 527 S.E.2d 693, 2000 N.C. App. LEXIS 318 (2000).

VIII.Instructions
A.In General

Degree of Proof. —

No set formula is required to convey to the jury the fixed principle relating to the degree of proof required for conviction. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

A trial judge is not required to define “reasonable doubt” without a request to do so, but if he does undertake to define it, the definition should be in substantial accord with the definitions of this court. State v. Shepherd, 288 N.C. 346 , 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975).

The defining of “reasonable doubt” as a possibility of innocence not only was not reversible error but constituted an instruction more favorable to the defendant than the usual definitions such as “fully satisfied,” “entirely convinced,” or “satisfied to a moral certainty.” State v. Wright, 282 N.C. 364 , 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972).

Reasonable Doubt as “Honest, Substantial Misgiving”. —

Instruction in murder trial which read in part “A reasonable doubt, as that term is employed in the administration of criminal law, is an honest, substantial misgiving,” was not error. State v. Hudson, 331 N.C. 122 , 415 S.E.2d 732, 1992 N.C. LEXIS 211 (1992), cert. denied, 506 U.S. 1055, 113 S. Ct. 983, 122 L. Ed. 2d 136, 1993 U.S. LEXIS 150 (1993).

Ability to Form Specific Intent. —

The trial court committed reversible error in refusing to instruct the jury to consider the defendant’s mental condition in connection with his ability to form a specific intent to kill and instead gave the pattern instruction which explains intent as a state of mind or mental attitude which may be inferred from surrounding circumstances rather than by direct evidence. State v. Williams, 116 N.C. App. 225, 447 S.E.2d 817, 1994 N.C. App. LEXIS 900 (1994).

Defendant’s first degree murder conviction for stabbing his wife to death was affirmed because the trial court did not error in giving a jury instruction which limited the purpose of evidence that was introduced regarding defendant’s prior bad acts to the determination of defendant’s intent. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Inability to Form Specific Intent. —

The trial court did not err in instructing the jury that in order to find that defendant could not form a specific intent to commit a felony or that the defendant was mentally incapable of premeditation and deliberation they must find that the defendant was “utterly incapable” (or “utterly unable”) of forming a specific intent. State v. Griffin, 288 N.C. 437 , 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976).

Killing Must Have Been Intentional. —

While it was error for the trial court to omit the word “intentionally” before the word “killed” in each instance that the court instructed on the inference of malice from use of a deadly weapon, the omission did not constitute plain error where the instructions, taken as a whole, made it clear that the killing must have been intentional in order for defendant to be convicted of first-degree murder, and essentially all the evidence, both that of the State and defendant, showed that the killing was intentional. State v. Hedgepeth, 330 N.C. 38 , 409 S.E.2d 309, 1991 N.C. LEXIS 663 (1991).

A charge, in the court’s final mandate, that the jury had to be satisfied beyond a reasonable doubt that the killing was with premeditation and deliberation, also charged that the killing had to be intentional. State v. Larrimore, 340 N.C. 119 , 456 S.E.2d 789, 1995 N.C. LEXIS 242 (1995).

With respect to jury instructions, the phrase “that he intended to kill” is self-explanatory, and absent a special request for instructions from the defendant, the presiding judge was not required to supply its definition. State v. Sparks, 285 N.C. 631 , 207 S.E.2d 712, 1974 N.C. LEXIS 1065 (1974), vacated, 428 U.S. 905, 96 S. Ct. 3213, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2265 (1976).

Instruction Held to Relieve State’s Burden of Proving Specific Intent. —

Trial court’s instruction to the jury that “[t]he phrase intentionally killed refers not to the presence of a specific intent to kill; the sense of the expression is that the act that resulted in death is intentionally committed,” entirely relieved the State of its burden of proving the specific intent required for first-degree murder, and was, therefore, error. State v. Keel, 333 N.C. 52 , 423 S.E.2d 458, 1992 N.C. LEXIS 668 (1992).

Instruction Held Not to Relieve State’s Burden of Proving Malice. —

Instruction stating that if the State proved beyond a reasonable doubt that defendant killed deceased with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the deceased’s death, the law requires, first, that the killing was unlawful and, second, that it was done with malice, the use of the word “requires” did not create a mandatory presumption of malice. The instruction was more likely to be interpreted by lay jurors as creating additional requirements for the State’s proof, by depriving the State of any permissible inference of malice from an intentional killing with a deadly weapon. Therefore, the instruction did not relieve the State of its burden to prove malice beyond a reasonable doubt. State v. Laws, 325 N.C. 81 , 381 S.E.2d 609, 1989 N.C. LEXIS 377 (1989), vacated, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603, 1990 U.S. LEXIS 1489 (1990) (in light of) 316 N.C. 382 , 342 S.E.2d 901 (1986).

Given defendant’s use of a deadly weapon and the fact that when the victim tried to escape by shutting the front door, defendant shot the door near the doorknob four to six times before kicking the door, the court was not persuaded that, absent the malice instruction, there was a reasonable possibility that the jury would have reached a different verdict on the charge of attempted first-degree murder. State v. Yarborough, 271 N.C. App. 159, 843 S.E.2d 454, 2020 N.C. App. LEXIS 307 (2020).

Instruction on Inference of Premeditation and Deliberation. —

In trial for first-degree murder and robbery, evidence of lack of provocation, including victim’s weakened condition and defendant’s physical integrity on examination, and of defendant’s conduct in leaving the scene of the assault and callously selling victim’s personal belongings constituted evidence from which premeditation could be inferred; therefore, instruction regarding proof from which premeditation and deliberation could be inferred was supported by the evidence. State v. Davis, 325 N.C. 607 , 386 S.E.2d 418, 1989 N.C. LEXIS 596 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2900 (1990).

“Lack of provocation by the victim,” “use of grossly excessive force,” and “infliction of lethal wounds after the victim is felled,” as cited in the North Carolina Pattern Jury Instructions, N.C.P.I.-Crim. 206.10 are merely examples of circumstances which, if found, the jury could use to infer premeditation and deliberation. It is not required that each of the listed elements be proven beyond a reasonable doubt before the jury may infer premeditation and deliberation. State v. Cummings, 326 N.C. 298 , 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

Failure to give defendant’s requested instruction on the felled victim theory of premeditation and deliberation was not error because the State established the elements of premeditation and deliberation by evidence other than the number of shots fired; the State presented evidence that defendant walked away from the argument with the victim, entered his house, retrieved a firearm from a closet, exited the house, and then shot the victim, forming intent sometime within that timeframe. State v. Snider, 168 N.C. App. 701, 609 S.E.2d 231, 2005 N.C. App. LEXIS 395 (2005).

Instruction on Premeditation Not Plain Error Where Defense Was Total Innocence. —

Where, upon defendant’s trial for murder, he did not attempt to establish that he shot victim in an unpremeditated manner, but rather, his defense, presented by the testimony of several alibi witnesses, was total innocence, the trial court’s failure to elucidate the meaning of premeditation in its instructions to the jury did not constitute plain error. State v. Brown, 327 N.C. 1 , 394 S.E.2d 434, 1990 N.C. LEXIS 563 (1990).

Alibi Instruction Not Required. —

In prosecution for first-degree murder, where the record showed that the crime was committed on a certain corner at a specified time, and defendant testified that he was on that corner at that time, there was insufficient evidence to require an instruction on alibi, even had there been a special request for it. State v. Waddell, 289 N.C. 19 , 220 S.E.2d 293, 1975 N.C. LEXIS 871 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4215 (1976).

Instruction on Diminished Capacity Not Required. —

While there was expert testimony indicating that defendant suffered from post traumatic stress disorder, the after-effects of a concussion, and alcohol dependence, defendant was not entitled to an instruction on diminished capacity because the expert testimony did not explain how those circumstances impaired defendant’s ability to premeditate, deliberate, or form specific intent to kill. State v. McDowell, 215 N.C. App. 184, 715 S.E.2d 602, 2011 N.C. App. LEXIS 1896 (2011).

Instruction on accident not required. —

Defendant was not entitled an instruction on the defense of accident, despite defendant’s claim to have abandoned the burglary before shooting the murder victim, because defendant was engaged in misconduct, breaking and entering into a home with the intent to commit robbery, at the time of the shooting. State v. Yarborough, 198 N.C. App. 22, 679 S.E.2d 397, 2009 N.C. App. LEXIS 1078 (2009), cert. denied, 363 N.C. 812 , 693 S.E.2d 143, 2010 N.C. LEXIS 144 (2010).

Judge’s failure to give instruction on accident in a murder prosecution was error; however, where defendant’s testimony was contradicted by State’s witness, defendant was impeached by his prior inconsistent statements and his past criminal activity, and defendant’s story completely lacked the ring of truth, no plain error was found. See State v. Loftin, 322 N.C. 375 , 368 S.E.2d 613, 1988 N.C. LEXIS 363 (1988).

Guilt of Accomplice. —

In a prosecution for murder where an accomplice testified for the State, the trial court did not err in failing to instruct the jury that the accomplice was guilty, as an accomplice, of the crime charged against defendant. State v. Keller, 50 N.C. App. 364, 273 S.E.2d 741, 1981 N.C. App. LEXIS 2123 (1981).

Instruction as to Aiding and Abetting. —

Defendant’s conviction for first-degree murder, under a theory of aiding and abetting, was affirmed because the trial court’s clarifying instructions properly set out the elements of the crime and did not lessen the state’s burden of proof. State v. Glynn, 178 N.C. App. 689, 632 S.E.2d 551, 2006 N.C. App. LEXIS 1676 (2006), writ denied, 819 S.E.2d 732, 2018 N.C. LEXIS 984 (N.C. 2018).

Instruction as to Accessory Before the Fact. —

Where the trial court’s instructions made no mention of the necessary causal connection between defendant’s alleged statements and principal’s actions, simply stating that defendant should be found guilty if the jury found that principal murdered victim, and that defendant “knowingly instigated, counseled or procured” the murder, the jury was not adequately instructed with respect to the chain of causation necessary to a conviction of accessory before the fact to murder. State v. Davis, 319 N.C. 620 , 356 S.E.2d 340, 1987 N.C. LEXIS 2088 (1987).

Instruction Permitting Verdict of Guilty as Accessory to Second-Degree Murder. —

In a prosecution of a defendant as an accessory before the fact to the murder of her husband, defendant was not prejudiced by an instruction which would permit the jury to return a verdict of guilty as an accessory to murder in the second degree. State v. Benton, 276 N.C. 641 , 174 S.E.2d 793, 1970 N.C. LEXIS 735 (1970).

It was not plain error for a trial court to instruct on the offense of accessory after the fact to second-degree murder because the State presented no evidence about what may have transpired between the victim and the principal offender before the principal shot the victim, and while physical evidence could have supported a finding of premeditation and deliberation, there was also testimony that the witness thought the victim had been “jumped,” supporting a reasonable inference that the attack was spontaneous. State v. Brewington, 179 N.C. App. 772, 635 S.E.2d 512, 2006 N.C. App. LEXIS 2133 (2006).

Instruction Permitting Verdict of Guilty of Voluntary Manslaughter. —

Where the jury was instructed that it could find defendant guilty of first-degree murder, second-degree murder, or not guilty, and the jury returned a verdict of guilty of first-degree murder, any error in the trial court’s failure to instruct the jury on voluntary manslaughter was harmless. State v. Bunnell, 340 N.C. 74 , 455 S.E.2d 426, 1995 N.C. LEXIS 168 (1995).

Instruction on Lesser-Included Offense of Involuntary Manslaughter. —

Evidence of recklessness by defendant in selling the victim methadone supported charges on both second-degree murder and the lesser-included offense of involuntary manslaughter to the jury. State v. Barnes, 226 N.C. App. 318, 741 S.E.2d 457, 2013 N.C. App. LEXIS 344 (2013).

The court did not commit “plain error” in failing to charge the jury on involuntary manslaughter, where the only possible evidentiary support for an involuntary manslaughter verdict was defendant’s statement to the police to the effect that he did not stab the victim and that she twice ran onto his knife, because defendant did not rely upon the statement in the trial court, but repudiated it as a lie. State v. Pulley, 90 N.C. App. 673, 369 S.E.2d 634, 1988 N.C. App. LEXIS 591 (1988).

Instruction on action in concert, as a permissible basis for finding defendant guilty of first-degree murder was properly given in view of the evidence, and where defendant himself struck the fatal blow. State v. Wilson, 322 N.C. 117 , 367 S.E.2d 589, 1988 N.C. LEXIS 297 (1988).

Although evidence adduced at trial would support a jury finding that the defendant acted in perfect defense of another, as it also would support a finding that the defendant and another acted in concert to commit first-degree murder, the trial court properly gave an instruction on the acting in concert theory. State v. Perry, 338 N.C. 457 , 450 S.E.2d 471, 1994 N.C. LEXIS 713 (1994).

District court did not abuse its discretion by instructing the jury where it gave the definition of conspiracy four times and gave a long instruction on the definition of murder under North Carolina law. United States v. Celestine, 43 Fed. Appx. 586, 2002 U.S. App. LEXIS 16140 (4th Cir. 2002), cert. denied, 537 U.S. 1061, 123 S. Ct. 644, 154 L. Ed. 2d 546, 2002 U.S. LEXIS 8929 (2002), cert. denied, 537 U.S. 1094, 123 S. Ct. 706, 154 L. Ed. 2d 642, 2002 U.S. LEXIS 9354 (2002), cert. denied, 537 U.S. 1095, 123 S. Ct. 708, 154 L. Ed. 2d 644, 2002 U.S. LEXIS 9369 (2002), cert. denied, 537 U.S. 1144, 123 S. Ct. 944, 154 L. Ed. 2d 843, 2003 U.S. LEXIS 212 (2003).

Was erroneously given regarding defendant’s first-degree murder charge, as the State failed to present any evidence that defendant acted with another; moreover, the error was not harmless, as contended by the State, because the trial court also erroneously informed the jury in its instructions that it could convict defendant of first-degree murder on the basis of acting in concert under both felony murder and premeditation and deliberation theories. State v. Windley, 173 N.C. App. 187, 617 S.E.2d 682, 2005 N.C. App. LEXIS 1927 (2005), cert. dismissed, 360 N.C. 295 , 629 S.E.2d 290, 2006 N.C. LEXIS 541 (2006), cert. dismissed, 629 S.E.2d 288, 2006 N.C. LEXIS 833 (N.C. 2006).

Finding of “an agreement to kill” is equivalent to finding an agreement to commit an intentional murder, even in the absence of an instruction requiring the latter finding, and the finding of an agreement to kill is equivalent to the finding of an agreement to premeditate and deliberate. State v. Brewton, 173 N.C. App. 323, 618 S.E.2d 850, 2005 N.C. App. LEXIS 2027 (2005), writ denied, 636 S.E.2d 812, 2006 N.C. LEXIS 1141 (N.C. 2006).

Instructions Permitting Conviction of Both Defendants If One Found Guilty. —

Where the jury instructions in a case in which two defendants were jointly tried for rape and murder were susceptible of the construction that the jury should convict both defendants if it found one of them guilty, defendants would be granted a new trial as to the charges against them. State v. McCollum, 321 N.C. 557 , 364 S.E.2d 112, 1988 N.C. LEXIS 11 (1988).

Characterization of Deceased Held Harmless Error. —

In a prosecution for first-degree murder, the trial judge’s characterization of deceased as the common-law husband of the defendant in his charge to the jury was harmless error. State v. Hunt, 289 N.C. 403 , 222 S.E.2d 234, 1976 N.C. LEXIS 1293 , vacated in part, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Instruction as to Definition of Life Imprisonment in First-Degree Murder Case. —

When jurors sent a question regarding the definition of life imprisonment in a first-degree murder case, the trial judge erred by adding a statement to the definition of life in prison without parole that the jurors should decide punishment “wholly uninfluenced by consideration of what another arm of the government might or might not do in the future”; that extraneous language contained the suggestion that “life without parole” was not the only alternative to the death sentence and was, therefore, erroneous. State v. Boggess, 358 N.C. 676 , 600 S.E.2d 453, 2004 N.C. LEXIS 912 (2004).

Instruction as to Right to Consider Eligibility to Parole. —

When, in a prosecution for murder in the first degree, the question of eligibility for parole arises spontaneously during the deliberations of the jury and is brought to the attention of the court by independent inquiry of the jury and request for information, the court should instruct the jury that the question of eligibility for parole is not a proper matter for the jury to consider and should be eliminated entirely from their deliberations, and the action of the court in merely telling the jury that it cannot answer the inquiry must be held for prejudicial error upon appeal from conviction of the capital felony without recommendation of life imprisonment. State v. Conner, 241 N.C. 468 , 85 S.E.2d 584, 1955 N.C. LEXIS 385 (1955).

Aggravating Factor of Pecuniary Gain. —

Submission to the jury of the aggravating factor of pecuniary gain does not relitigate the question of intentional killing or any element of the offense of first-degree murder under the felony-murder rule. State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981).

Flight. —

So long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, an instruction of flight is properly given. State v. Green, 321 N.C. 594 , 365 S.E.2d 587, 1988 N.C. LEXIS 112 , cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

The fact that there may be other reasonable explanations for defendant’s conduct does not render an instruction on flight improper. State v. Green, 321 N.C. 594 , 365 S.E.2d 587, 1988 N.C. LEXIS 112 , cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

Instruction on Flight Held Warranted. —

As an escape from custody constitutes evidence of flight, evidence of defendant’s attempt to escape from custody following his arrest provided support for the trial court’s instruction on flight. State v. Levan, 326 N.C. 155 , 388 S.E.2d 429, 1990 N.C. LEXIS 10 (1990).

Where following the shooting, defendant first attempted to conceal victim’s body by ordering accomplice to drag it further into the woods by the roadside where the shooting had occurred, ordered accomplice to wipe the fingerprints off the gun and then to throw the murder weapon into a nearby river from which it was never recovered, tried to throw victim’s clothes and personal effects into a dumpster and eventually threw the items over the guard rail along a major highway, his actions were sufficient to support the trial court’s instruction on flight, despite fact defendant returned to his home following shooting and approached five law enforcement officers within 48 hours of victim’s murder. State v. Levan, 326 N.C. 155 , 388 S.E.2d 429, 1990 N.C. LEXIS 10 (1990).

Trial court properly refused to instruct that the automatism/unconsciousness defense applied to charges of felony murder, G.S. 14-17 , because the underlying kidnapping of the victim and the killing of the victim were a single transaction, and thus the kidnapping provided the voluntary act for purposes of the felony murder rule; although a psychiatrist testified that defendant was in a dissociative state when he actually killed the victim, there was no evidence that defendant was in a dissociative state when he kidnapped the victim. State v. Boggess, 195 N.C. App. 770, 673 S.E.2d 791, 2009 N.C. App. LEXIS 257 (2009).

Voluntary Intoxication. —

There was no prejudicial error in refusing to instruct the jury on voluntary intoxication as it related to the burning of defendant’s dwelling in a felony murder case, where the court did so charge the jury in the murder part of the case. State v. Hales, 344 N.C. 419 , 474 S.E.2d 328, 1996 N.C. LEXIS 487 (1996).

Defendant’s conviction of first-degree murder under G.S. 14-17 , was affirmed; the trial court properly denied defendant’s requested jury instructions on voluntary intoxication and second-degree murder, as defendant showed no signs of intoxication when he committed the crime, and the evidence of premeditation was very strong, and the trial court did not abuse its authority to question witnesses under G.S. 8C-1 , N.C. R. Crim. P. 614(b), as the trial court only questioned jurors to focus the witness, or to clarify the testimony. State v. Rios, 169 N.C. App. 270, 610 S.E.2d 764, 2005 N.C. App. LEXIS 685 (2005).

Robbery Occurring after Murder. —

Where a jury could reasonably infer that murder and subsequent robbery were all part of one continuous transaction, the trial court’s instructions on this issue were properly supported by the evidence. State v. Morganherring, 350 N.C. 701 , 517 S.E.2d 622, 1999 N.C. LEXIS 881 (1999), cert. denied, 529 U.S. 1024, 120 S. Ct. 1432, 146 L. Ed. 2d 322, 2000 U.S. LEXIS 1998 (2000).

Inaccurate Statements of Law. —

The court did not err in refusing to give defendant’s requested instruction where it was not an accurate statement of the law. State v. Harden, 344 N.C. 542 , 476 S.E.2d 658, 1996 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

Instruction on Second-Degree Murder Not Required. —

Because the evidence did not establish that defendant formed the intent to kill the victim under the influence of provocation such that premeditation and deliberation were negated, the trial court did not err in failing to instruct the jury on second-degree murder. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Instruction on Voluntary Manslaughter Not Required. —

Defendant did not present evidence of sudden provocation, and the State’s evidence did not establish sudden provocation, much less that he acted under an immediate grip of sufficient passion to warrant a voluntary manslaughter instruction; without evidence of such a provocation and heat of passion, the trial court did not err in failing to instruct the jury on voluntary manslaughter. State v. Holmes, 263 N.C. App. 289, 822 S.E.2d 708, 2018 N.C. App. LEXIS 1260 (2018).

Double Jeopardy. —

Trial court did not err by submitting to the jury both attempted first-degree murder and assault with a deadly weapon inflicting serious injury, and by imposing consecutive sentences for the offenses, because each offense contained at least one element not included in the other; therefore, defendants were not been subjected to double jeopardy. State v. Tirado, 358 N.C. 551 , 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

Failure to Give Instruction Was Harmless. —

In a case in which defendant passed a tow truck on the shoulder and struck and killed the victim, because the trial court instructed the jury on second-degree murder and the lesser-included offenses of involuntary manslaughter and misdemeanor death by vehicle, both of which were lesser offenses that involved killings that were unintentional, but the jury chose to convict defendant of second-degree murder, which required a mens rea of malice, the jury’s verdict rejected the notion that defendant’s passing of the tow truck along the shoulder was unintentional, and, thus, any error in failing to give an instruction on accident was harmless. State v. Nazzal, 270 N.C. App. 345, 840 S.E.2d 881, 2020 N.C. App. LEXIS 166 (2020).

B.Degree of Offense

When Jury May Be Instructed to Find Defendant Guilty of First-Degree Murder or Not Guilty. —

It is only in cases where all of the evidence tends to show that the homicide was committed by means of poison, lying in wait, imprisonment, starving, torture, or in the perpetration or attempt to perpetrate a felony, that the trial judge can instruct the jury that they must return a verdict of murder in the first degree or not guilty. State v. Perry, 209 N.C. 604 , 184 S.E. 545, 1936 N.C. LEXIS 307 (1936).

Where no inference can fairly be deduced from the evidence of or tending to prove a murder in the second degree or manslaughter, the trial judge should instruct the jury that it is their duty to render a verdict of “guilty of murder in the first degree,” if they are satisfied beyond a reasonable doubt, or of “not guilty.” State v. Smith, 294 N.C. 365 , 241 S.E.2d 674, 1978 N.C. LEXIS 1255 (1978).

If the evidence is sufficient to fully satisfy the state’s burden of proving each and every element of the offense of first-degree murder and there is no evidence to negate these elements other than the defendant’s denial that he committed the offense, second-degree murder should not be submitted to the jury. State v. Moseley, 336 N.C. 710 , 445 S.E.2d 906, 1994 N.C. LEXIS 420 (1994), cert. denied, 513 U.S. 1120, 115 S. Ct. 923, 130 L. Ed. 2d 802, 1995 U.S. LEXIS 677 (1995), cert. denied, 345 N.C. 645 , 483 S.E.2d 716, 1997 N.C. LEXIS 139 (1997).

The absence of self-defense is not an “element” of murder, nevertheless, upon the particular evidence presented, the trial court correctly instructed the jury that to convict the defendant of murder in the first degree the jury must find that he did not act in self-defense. State v. Keel, 337 N.C. 469 , 447 S.E.2d 748, 1994 N.C. LEXIS 486 (1994), cert. denied, 513 U.S. 1198, 115 S. Ct. 1270, 131 L. Ed. 2d 147, 1995 U.S. LEXIS 1797 (1995).

Murder by Means of Lying in Wait. —

When the evidence supports a finding that the murder was perpetrated by means of lying in wait and there is no conflict in the evidence, the trial court is not required to instruct the jury on second-degree murder. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

The trial court may not give an instruction on second-degree murder when the state’s evidence supports a jury finding of each element of lying in wait and when there is no conflict with respect to such evidence. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Trial court did not commit plain error by instructing the jury that it could convict defendant of first-degree murder based on the theory of lying in wait because the evidence suggested that the shooting immediately, or almost immediately, followed defendant’s ambush of the victim outside the house, and the evidence did not show that the victim was aware of defendant’s presence outside the house or defendant’s purpose to kill her; even if defendant could show error on that basis, defendant could not show prejudice resulting from the error because there was no possibility that, had the error in question not been committed, a different result would have been reached at trial. State v. Gosnell, 231 N.C. App. 106, 750 S.E.2d 593, 2013 N.C. App. LEXIS 1246 (2013).

It was no error to instruct a jury on a lying in wait theory of first degree murder absent evidence of a deadly purpose to kill, because (1) a lying in wait theory of murder did not require proof of a specific intent to kill, synonymous with a deadly purpose to kill, and (2) the evidence was sufficient where the initial rationale for a concealed attack on a victim which ended in murder was to “get some money.” State v. Grullon, 240 N.C. App. 55, 770 S.E.2d 379, 2015 N.C. App. LEXIS 172 (2015).

Where there was a conflict in the evidence regarding whether the defendant lay in wait, the evidence supported submission to the jury of second-degree murder and voluntary manslaughter. State v. Camacho, 337 N.C. 224 , 446 S.E.2d 8, 1994 N.C. LEXIS 414 (1994).

For all murder cases prosecuted under this section, when there is a conflict in the evidence regarding whether defendant committed the underlying felony or was lying in wait, all lesser degrees of homicide charged in the indictment pursuant to G.S. 15-144 and supported by the evidence must be submitted to the jury. State v. Camacho, 337 N.C. 224 , 446 S.E.2d 8, 1994 N.C. LEXIS 414 (1994).

Where there was abundant evidence that homicide was committed in the perpetration of rape, and that defendant was the one who committed the offense, and no element of murder in the second degree or manslaughter was made to appear, court properly limited the possible verdicts to guilty of murder in first degree or not guilty. State v. Mays, 225 N.C. 486 , 35 S.E.2d 494, 1945 N.C. LEXIS 424 (1945); State v. Scales, 242 N.C. 400 , 87 S.E.2d 916, 1955 N.C. LEXIS 523 (1955).

Where all the evidence is to the effect that murder was committed in the perpetration of a robbery, it is not error for the court to limit the jury to a verdict of guilty of murder in the first degree or not guilty under this section. State v. Gosnell, 208 N.C. 401 , 181 S.E. 323, 1935 N.C. LEXIS 425 (1935); State v. Matthews, 226 N.C. 639 , 39 S.E.2d 819, 1946 N.C. LEXIS 301 (1946).

Where all the evidence for the State tends to show that the defendants killed the deceased while attempting to rob him, the crime is murder in the first degree, under this section, and the failure of the trial court to submit the issue of guilty of murder in the second degree is not error. State v. Donnell, 202 N.C. 782 , 164 S.E. 352, 1932 N.C. LEXIS 220 (1932). See also, State v. Brown, 231 N.C. 152 , 56 S.E.2d 441, 1949 N.C. LEXIS 507 (1949).

In a case of murder in the first degree committed in the perpetration of, or attempt to perpetrate, a robbery, instruction that the jury should return a verdict of guilty as charged, guilty as charged with a recommendation for life imprisonment, or not guilty is a proper instruction. When the indictment and evidence disclose a killing in the perpetration of a robbery, only one of such verdicts may be returned. State v. Hill, 276 N.C. 1 , 170 S.E.2d 885, 1969 N.C. LEXIS 335 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971).

Where the evidence permits a legitimate inference that a murder was committed in perpetration of a robbery, it is not prejudicial error for the court to give the State’s contentions and to charge the jury that a murder committed in the perpetration of a robbery will be deemed murder in the first degree. State v. Rich, 277 N.C. 333 , 177 S.E.2d 422, 1970 N.C. LEXIS 603 (1970).

A murder committed in the perpetration or attempted commission of kidnapping or holding a human being for ransom constitutes murder in the first degree and an instruction to this effect upon supporting evidence cannot be held for error. State v. Streeton, 231 N.C. 301 , 56 S.E.2d 649, 1949 N.C. LEXIS 526 (1949).

Any error of trial judge in failing to instruct on involuntary manslaughter was harmless where the jury specifically found that the underlying felony of kidnapping was committed, which supported defendant’s conviction of murder in the first degree on the basis of felony murder. State v. Woods, 316 N.C. 344 , 341 S.E.2d 545, 1986 N.C. LEXIS 2070 (1986).

Murder Committed in Course of Kidnapping. —

The court properly instructed the jury on the theory of felony murder based on the underlying felony of kidnapping, while applying the theory of acting in concert. State v. Roseborough, 344 N.C. 121 , 472 S.E.2d 763, 1996 N.C. LEXIS 404 (1996).

Murder Committed in Course of Burglary. —

In a prosecution where defendants were charged with first-degree murder and the evidence tended to show that defendants killed decedent in the perpetration of the underlying felony of burglary, but there was no evidence that decedent was killed other than in the course of the commission of burglary, the trial court was not required to submit lesser included offenses of second-degree murder and voluntary manslaughter to the jury. State v. Rinck, 303 N.C. 551 , 280 S.E.2d 912, 1981 N.C. LEXIS 1197 (1981).

Murder Committed in Course of Robbery. —

Trial court erroneously instructed the jury it could convict defendant of second-degree murder if it found he acted in concert with co-felon “with a common purpose to commit robbery”; a conviction for second-degree murder requires a finding that defendant acted intentionally and with malice to kill the victim; therefore the erroneous instruction given by the trial court could have allowed defendant to be convicted of second-degree murder based on the defendant’s mens rea for robbery. State v. Hunt, 91 N.C. App. 574, 372 S.E.2d 744, 1988 N.C. App. LEXIS 895 (1988).

Duty of Judge to Determine If Instruction on Lesser Offense Is Warranted. —

It is the duty of the judge to determine, in the first instance, if there is any evidence or any inference fairly deducible therefrom tending to prove one of the lower grades of murder. Having done so, and having concluded that there is no basis for submission of manslaughter to the jury, it was the duty of the judge to instruct it accordingly. State v. Duboise, 279 N.C. 73 , 181 S.E.2d 393, 1971 N.C. LEXIS 752 (1971).

When Lesser Included Offense May Be Submitted to Jury. —

Defendant is entitled to have a lesser included offense submitted to the jury under the proper instructions, but only when there is evidence to support that lesser included offense. State v. Brown, 300 N.C. 731 , 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980).

It is a well-established rule that when the law and evidence justify the use of the felony-murder rule, the court is not required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it. State v. Warren, 292 N.C. 235 , 232 S.E.2d 419, 1977 N.C. LEXIS 1057 (1977).

An indictment in the form prescribed by G.S. 15-144 will support a verdict finding the defendant guilty of first-degree murder upon any of the theories set forth in this section or guilty of any lesser offense included within any of those theories. The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the state’s evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Same — Second-Degree Murder. —

In all cases in which the State relies upon premeditation and deliberation to support a first-degree murder conviction, the court must submit the issue of second-degree murder. State v. Hammond, 34 N.C. App. 390, 238 S.E.2d 198, 1977 N.C. App. LEXIS 1707 (1977); State v. Poole, 298 N.C. 254 , 258 S.E.2d 339, 1979 N.C. LEXIS 1356 (1979).

A trial judge is not required to give an instruction on second-degree murder in all first-degree cases, but may only instruct on second-degree murder when the evidence supports such a charge. State v. Williams, 315 N.C. 310 , 338 S.E.2d 75, 1986 N.C. LEXIS 1870 (1986).

A plea of not guilty to first degree murder does not, by itself, entitle a defendant to an instruction on second-degree murder. State v. Zuniga, 320 N.C. 233 , 357 S.E.2d 898, 1987 N.C. LEXIS 2176 , cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).

Only where defendant has brought forth evidence to negate premeditation and deliberation, or where the evidence is equivocal as to premeditation and deliberation, is defendant entitled to an instruction on second-degree murder. State v. Zuniga, 320 N.C. 233 , 357 S.E.2d 898, 1987 N.C. LEXIS 2176 , cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).

An instruction on murder in the second degree is required only when there is evidence to sustain such a verdict. State v. Bullock, 326 N.C. 253 , 388 S.E.2d 81, 1990 N.C. LEXIS 14 (1990).

Where a defendant is charged with premeditated and deliberate first degree murder, an instruction on the lesser included offense of second degree murder need be given only if the evidence, reasonably construed, tended to show lack of premeditation and deliberation or would permit a jury to rationally find defendant guilty of the lesser offense and acquit him of the greater. State v. Morston, 336 N.C. 381 , 445 S.E.2d 1, 1994 N.C. LEXIS 311 (1994).

A court should instruct on murder in the second degree only when the evidence would permit a reasonable finding that the defendant’s anger and emotion were strong enough to disturb the defendant’s ability to reason. State v. Perry, 338 N.C. 457 , 450 S.E.2d 471, 1994 N.C. LEXIS 713 (1994).

Trial court did not err when defendant was found guilty of first degree murder by denying defendant’s request for an instruction on the lesser included offense of second degree murder because the evidence showed that defendant acted with premeditation and deliberation and there was no evidence to suggest a lack thereof. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486, 2015 N.C. App. LEXIS 449 (2015).

Same — Manslaughter. —

The trial judge is required to instruct the jury on the lesser included offense of manslaughter only where there is evidence which would sustain such a verdict. It is not error to omit a charge on manslaughter where there is no evidence of manslaughter. State v. Mays, 14 N.C. App. 90, 187 S.E.2d 479, 1972 N.C. App. LEXIS 2043 , cert. denied, 281 N.C. 157 , 188 S.E.2d 366, 1972 N.C. LEXIS 1035 (1972).

The necessity for instructing the jury as to an included crime of lesser degree, such as manslaughter, than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. State v. Jones, 291 N.C. 681 , 231 S.E.2d 252, 1977 N.C. LEXIS 1233 (1977).

In a prosecution for first-degree murder, instructions on a lesser included offense of manslaughter are required only when there is evidence from which the jury could find that such included crime of lesser degree was committed. State v. Stewart, 292 N.C. 219 , 232 S.E.2d 443, 1977 N.C. LEXIS 1055 (1977).

It is difficult to imagine a homicide case in which the evidence supports an instruction on self-defense but not an instruction on voluntary manslaughter based upon an excessive force theory. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

A defendant is entitled to an instruction on voluntary manslaughter based on imperfect self-defense only if evidence is introduced from which the following may be found: (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant’s belief was reasonable, in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. State v. Battle, 322 N.C. 69 , 366 S.E.2d 454, 1988 N.C. LEXIS 126 , cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

To have been properly entitled to a jury instruction on voluntary manslaughter, defendant was required either to offer his own evidence or to rely upon the State’s evidence to show (1) that he stabbed his wife in the heat of passion, (2) that his passion was provoked by acts of his wife which the law regards as adequate provocation, and (3) that the stabbing occurred immediately after the provocation. State v. Tidwell, 323 N.C. 668 , 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Evidence of several steps taken by two men shot by the defendant, who were admittedly the defendant’s friends, did not amount to evidence of either an assault or a threatened assault that would rise to the level of provocation which would “render the mind incapable of cool reflection,” and therefore, did not warrant the requested instruction on voluntary manslaughter. State v. Huggins, 338 N.C. 494 , 450 S.E.2d 479, 1994 N.C. LEXIS 702 (1994).

Trial court did not err by failing to instruct the jury on involuntary manslaughter because defendant did not object to the trial court’s instructions during trial. State v. McCollum, 157 N.C. App. 408, 579 S.E.2d 467, 2003 N.C. App. LEXIS 747 (2003), aff'd, 358 N.C. 132 , 591 S.E.2d 519, 2004 N.C. LEXIS 7 (2004).

When Instruction on Lesser Included Offense Should Be Omitted. —

Where the evidence tends to show that the defendant committed the crime charged and there is no evidence of a lesser included offense, the trial court is correct in not charging on the lesser included offense. State v. Brown, 300 N.C. 731 , 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980).

Trial court correctly denied defendant’s request for instruction on second-degree murder and voluntary manslaughter where those instructions would have permitted the jury to find him not guilty of felony murder while at the same time finding that he was, in some manner, at fault for shooting into the victim’s vehicle, and that outcome would have undermined the imperfect self-defense limitation and the purpose of the felony murder rule. State v. Juarez, 369 N.C. 351 , 794 S.E.2d 293, 2016 N.C. LEXIS 1119 (2016).

Second-Degree Murder Instruction Required. —

In a prosecution for first-degree murder, where there was some evidence from which the jury could have inferred that the defendant killed the victim without premeditation and deliberation, it was error for the trial court not to instruct on second-degree murder, since the jury should be instructed on a lesser included offense when there is evidence from which the jury could find that such lesser included offense was committed. State v. Poole, 298 N.C. 254 , 258 S.E.2d 339, 1979 N.C. LEXIS 1356 (1979).

While the evidence was sufficient to support the theory of murder committed in the attempted perpetration of the felony of rape and also supported the inference that defendant did not intend to commit rape but sought to have intercourse with his victim on a voluntary basis and that his assault upon her was precipitated when she struck at him while she was trying to drive him from the house, it was the duty of the court upon such evidence to submit the question of defendant’s guilt of murder in the second degree, in addition to the question of defendant’s guilt of murder in the first degree, or not guilty. State v. Knight, 248 N.C. 384 , 103 S.E.2d 452, 1958 N.C. LEXIS 495 (1958).

The trial court should have instructed the jury on voluntary intoxication as well as the lesser included offense of second-degree murder, where the defendant produced enough evidence of his intoxication for a reasonable juror to find that defendant neither had the capacity to form the specific intent to rob the victim nor the capacity to commit first-degree murder. State v. Golden, 143 N.C. App. 426, 546 S.E.2d 163, 2001 N.C. App. LEXIS 299 (2001).

Expert testimony finding that defendant was unable to distinguish right from wrong did not negate defendant’s ability to premeditate and deliberate, and thus a jury instruction on second-degree murder was not required. State v. Erickson, 181 N.C. App. 479, 640 S.E.2d 761, 2007 N.C. App. LEXIS 262 (2007).

When defendant was charged with felony murder, pursuant to G.S. 14-17 , with felonious child abuse being the underlying felony, a trial court properly instructed the jury on the offense of second degree murder because the jury could rationally find that defendant did not use his hands as a deadly weapon in shaking the infant, and therefore not guilty of felony murder, but that the violent shaking was evidence of malice for purposes of second degree murder. State v. Barrow, 216 N.C. App. 436, 718 S.E.2d 673, 2011 N.C. App. LEXIS 2291 (2011), aff'd, 366 N.C. 141 , 727 S.E.2d 546, 2012 N.C. LEXIS 417 (2012).

Second-Degree Murder Instruction Not Required. —

Defendant was not entitled to an instruction on second-degree murder where the State’s evidence showed that defendant and daughter of victim had discussed killing victim in order to collect her life insurance and that victim was severely beaten about the head and was strangled with a telephone cord, and the only evidence tending to negate the required elements of first-degree murder was defendant’s silent, yet implicit, denial that he committed the crime. State v. Williams, 315 N.C. 310 , 338 S.E.2d 75, 1986 N.C. LEXIS 1870 (1986).

When all of the evidence tended to show that defendant killed deceased in the perpetration of rape, without evidence of guilt of a less degree of the crime, the court correctly refrained from submitting the question of defendant’s guilt of murder in the second degree. State v. Crawford, 260 N.C. 548 , 133 S.E.2d 232, 1963 N.C. LEXIS 775 (1963).

Where the evidence supported each element of the charged crime of first-degree murder by means of poison, and the only evidence to negate these elements was the defendant’s denial that he had committed the offense, the trial court did not err by refusing to instruct the jury on second-degree murder or involuntary manslaughter. State v. Johnson, 317 N.C. 193 , 344 S.E.2d 775, 1986 N.C. LEXIS 2794 (1986).

Evidence that defendant, jealous of his ex-lover’s relationship with victim, threatened to kill the victim, and that he obtained a rifle and after calling his ex-lover several times on the night of the shooting, entered her apartment with a key he had managed to obtain, shot the victim once, and while the unarmed victim staggered out of bed, shot him again with the fatal shot, belied anything other than a premeditated and deliberate killing, and an instruction on second-degree murder was not required. State v. Davis, 317 N.C. 315 , 345 S.E.2d 176, 1986 N.C. LEXIS 2774 (1986).

Where the evidence showed that defendant either premeditated and deliberated and then murdered her husband, or accidentally shot her husband as she contended throughout her trial, the trial court properly refused to submit the lesser included offenses of second degree murder and involuntary manslaughter to the jury. State v. Hickey, 317 N.C. 457 , 346 S.E.2d 646, 1986 N.C. LEXIS 2434 (1986).

Where State adequately established all the elements of first-degree murder, including premeditation and deliberation, and defendant produced no evidence sufficient to negate these elements, the mere possibility that the jury could return with a negative finding did not, without more, require the submission of the lesser included offense, murder in the second degree. State v. Cummings, 326 N.C. 298 , 389 S.E.2d 66, 1990 N.C. LEXIS 116 (1990).

Where defendant repeatedly threatened the victim on the day she was killed, concealed a small pistol in one of his pockets and waited in the victim’s apartment until her arrival, had a brief argument with her and as she attempted to leave, pulled out his gun and fired two shots at the back of her head, and the victim died as a result of a gunshot wound to the back of her head, such evidence unequivocally tended to show an intentional killing with malice, premeditation and deliberation, and defendant was not entitled to an instruction on the lesser included offenses of second-degree murder. State v. Stevenson, 327 N.C. 259 , 393 S.E.2d 527, 1990 N.C. LEXIS 576 (1990).

Where the evidence, viewed as a whole, was insufficient to negate the elements of premeditation and deliberation, the trial court did not err in failing to instruct the jury on second-degree murder and only charging on possible verdicts of guilty of murder in the first degree or not guilty. State v. Arrington, 336 N.C. 592 , 444 S.E.2d 418, 1994 N.C. LEXIS 294 (1994).

Where the State offered evidence that the murder was premeditated and deliberate, and defendant offered no evidence to negate these elements, the trial court’s refusal to give the second-degree murder instruction was proper. State v. Lane, 344 N.C. 618 , 476 S.E.2d 325, 1996 N.C. LEXIS 508 (1996).

The trial court was not required to instruct on second-degree murder where the State presented positive, uncontradicted evidence of each element of first-degree murder. State v. Leazer, 353 N.C. 234 , 539 S.E.2d 922, 2000 N.C. LEXIS 908 (2000).

Habeas relief for death row petitioner was not warranted where trial court’s instruction on aggravation was proper, and the court’s refusal to instruct the jury on the lesser-included offense of second degree murder did not violate established federal law. Bates v. Lee, 308 F.3d 411, 2002 U.S. App. LEXIS 22094 (4th Cir. 2002), cert. denied, 538 U.S. 1061, 123 S. Ct. 2223, 155 L. Ed. 2d 1113, 2003 U.S. LEXIS 4141 (2003).

Regardless of whether defendant was the first to fire his weapon, the State presented uncontroverted evidence from which the jury could rationally infer that defendant formed the requisite intent for first-degree murder at some point during the period in which he heard shots erupt in the front of the store, stepped around the corner to observe the action, and fired his weapon multiple times. Defendant’s conduct before, during, and after the murder provided sufficient positive evidence of premeditation and deliberation; accordingly, he was not entitled to an instruction on second-degree murder as the lesser included offense of first-degree murder. State v. Taylor, 362 N.C. 514 , 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Defendant’s admission that he fired three times in the victim’s direction supported a finding of premeditation and deliberation because premeditation and deliberation may be inferred from the multiple shots fired by defendant; accordingly, defendant was not entitled to an instruction on second-degree murder as the lesser included offense of first-degree murder. State v. Taylor, 362 N.C. 514 , 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Statements indicated that it was only after defendant fired multiple shots in the front of a store that he ran back towards the witnesses and appeared to a witness to be focused on leaving the store. Neither the witness’s testimony nor defendant’s leaving the store after shooting the victim negated premeditation and deliberation such that an instruction on second-degree murder as a lesser included offense of first-degree murder was warranted. State v. Taylor, 362 N.C. 514 , 669 S.E.2d 239, 2008 N.C. LEXIS 986 (2008), cert. denied, 558 U.S. 851, 130 S. Ct. 129, 175 L. Ed. 2d 84, 2009 U.S. LEXIS 5323 (2009).

Defendant was not entitled to a jury instruction on second-degree murder as a lesser-included offense of first-degree murder, because defendant conceded that the evidence presented warranted an instruction on the charge of first-degree murder, necessarily acknowledging support for findings of premeditation and deliberation, and defendant pointed to no evidence that the victim was killed without premeditation and deliberation. State v. Laurean, 220 N.C. App. 342, 724 S.E.2d 657, 2012 N.C. App. LEXIS 601 (2012).

In a first-degree murder case, in light of evidence of defendant’s premeditation and deliberation, including testimony that the victim begged for his life, multiple gunshot wounds, and the lack of provocation, defendant was not entitled to an instruction on the lesser-included offense of second-degree murder. State v. Rogers, 227 N.C. App. 617, 742 S.E.2d 622, 2013 N.C. App. LEXIS 613 (2013).

Where the jury had the right to convict defendant of second-degree murder, but convicted defendant of first-degree murder based on felony murder, the failure to instruct them that they could convict of voluntary manslaughter could not have harmed defendant. State v. Price, 344 N.C. 583 , 476 S.E.2d 317, 1996 N.C. LEXIS 498 (1996).

Where there was ample evidence to support a finding that defendant premeditated and deliberated a murder, the trial court did not err in refusing to instruct on second-degree murder. State v. Geddie, 345 N.C. 73 , 478 S.E.2d 146, 1996 N.C. LEXIS 649 (1996).

Premise for Instruction Held Improper. —

A trial court may not premise a second-degree murder instruction on the possibility that the jury will accept some of the state’s evidence while rejecting other portions of the state’s case. State v. Leroux, 326 N.C. 368 , 390 S.E.2d 314, 1990 N.C. LEXIS 163 , cert. denied, 498 U.S. 871, 111 S. Ct. 192, 112 L. Ed. 2d 155, 1990 U.S. LEXIS 4767 (1990).

Voluntary Manslaughter Instruction Not Required. —

There being no evidence in the record to sustain a verdict of manslaughter, it was not error for the court to omit manslaughter from the possible verdicts which the jury might return. State v. Vestal, 278 N.C. 561 , 180 S.E.2d 755, 1971 N.C. LEXIS 1013 (1971).

In prosecution for second-degree murder, where there was no evidence of just cause or reasonable provocation for the homicide, nor was there evidence of self-defense, unavoidable accident or misadventure, defendant’s self-serving declarations alone were not sufficient to rebut the presumption of malice arising in the case, and the trial court did not err in failing to instruct on manslaughter as a lesser included offense. State v. Mull, 24 N.C. App. 502, 211 S.E.2d 515, 1975 N.C. App. LEXIS 2413 (1975).

Where, in a prosecution for second-degree murder, there is no evidence that defendant killed under the heat of passion raised by sudden provocation and nothing that raises the issue of self-defense, a possible verdict of voluntary manslaughter should not be submitted. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

In a prosecution for second-degree murder involving the death of a child from the so-called “battered child” syndrome, where there was a great disparity in age and size between the victim and her slayer, and particularly where the slayer stood in loco parentis with the child, as a matter of law adequate provocation could not be found to exist so as to justify submission of voluntary manslaughter where the evidence showed that the defendant beat and abused the child unto its death. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, 1979 N.C. App. LEXIS 2267 , cert. denied, 297 N.C. 457 , 256 S.E.2d 809, 1979 N.C. LEXIS 1457 (1979), cert. denied, 444 U.S. 968, 100 S. Ct. 459, 62 L. Ed. 2d 382, 1979 U.S. LEXIS 3869 (1979).

The trial court in a second-degree murder case did not err in failing to charge the jury that it might find defendant, who offered no evidence in his own behalf, guilty of voluntary manslaughter, since evidence presented by the State tended to show that defendant was guilty of murder if he was guilty of anything, and evidence presented by a codefendant tended to show that defendant was not guilty of anything. State v. Gadsden, 300 N.C. 345 , 266 S.E.2d 665, 1980 N.C. LEXIS 1078 (1980).

Trial judge properly refused to submit voluntary manslaughter as an alternative verdict, where the State’s evidence tended to show a cold, calculated premeditated shooting by defendant, and defendant’s evidence, on the other hand, tended to show that he did not shoot victim intentionally and never intended to harm him, and that his gun accidentally discharged as he struggled with victim over the gun, which defendant had picked up to convince victim to stop choking him. State v. Blake, 317 N.C. 632 , 346 S.E.2d 399, 1986 N.C. LEXIS 2422 (1986).

Where the jury did not find defendant was in the grip of sufficient passion to reduce a charge of murder from first-degree to second-degree, then ipso facto it would not have found sufficient passion to find the defendant guilty only of voluntary manslaughter; therefore, the trial court did not err in failing to give the jury an instruction on voluntary manslaughter. State v. Tidwell, 323 N.C. 668 , 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Where defendant’s stabbing of his wife occurred more than eight hours after the alleged incident of provocation, the trial court was not required to charge the jury on a lesser included offense of voluntary manslaughter. State v. Tidwell, 323 N.C. 668 , 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Evidence that defendant believed it necessary to kill victim before victim killed him is not sufficient to justify an instruction as to voluntary manslaughter based on imperfect self-defense. State v. Battle, 322 N.C. 69 , 366 S.E.2d 454, 1988 N.C. LEXIS 126 , cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

Involuntary Manslaughter Instruction Required. —

Where the evidence offered by defendant, if believed by the jury, was sufficient to support a verdict of involuntary manslaughter, which was a lesser degree of the crime charged in the bill of indictment, the court erred in excluding it from the list of permissible verdicts. State v. Wrenn, 279 N.C. 676 , 185 S.E.2d 129, 1971 N.C. LEXIS 909 (1971).

In a prosecution for first-degree murder in which the defendant was found guilty of voluntary manslaughter, the trial judge erred in failing to instruct the jury on involuntary manslaughter where the defendant’s testimony was, in its entirety, an account of an unintentional killing. State v. Graham, 38 N.C. App. 86, 247 S.E.2d 300, 1978 N.C. App. LEXIS 2088 (1978).

Trial court should have given an involuntary manslaughter jury instruction where defendant requested such an instruction and there was evidence that tended to show that the victim was shot after she pointed a gun at defendant, that defendant attempted to knock the gun out of the victim’s hand, and that the gun discharged in a struggle between the victim and defendant to gain control of it.

Involuntary Manslaughter Instruction Not Required. —

Court’s failure to instruct the jury that involuntary manslaughter was one of their possible verdicts was not error where all of the evidence showed that defendant took a pistol from his back pocket and shot his victim twice after the defendant, a customer, had gotten into a dispute with the victim, a storekeeper, during the course of which the victim ordered defendant out of his store, advanced upon defendant, and hit him with a “billy club,” and where none of the evidence suggested that the two shots fired by defendant were fired involuntarily or by reason of culpable negligence. State v. Credle, 18 N.C. App. 142, 196 S.E.2d 289, 1973 N.C. App. LEXIS 1800 (1973).

When all the evidence tended to show that the accused committed second-degree murder and there was no evidence of guilt of involuntary manslaughter, the court correctly refused to charge on the unsupported lesser offense. The presence of such evidence is the determinative factor. State v. Redfern, 291 N.C. 319 , 230 S.E.2d 152, 1976 N.C. LEXIS 977 (1976).

Under the evidence, the trial judge in murder trial did not err in failing to instruct on involuntary manslaughter. State v. Wingard, 317 N.C. 590 , 346 S.E.2d 638, 1986 N.C. LEXIS 2411 (1986).

In trial for first-degree murder by reason of killing during the perpetration of a felony, evidence was sufficient to support a finding that defendant intended to shoot into residence within the meaning of G.S. 14-34.1 , and since defendant presented no evidence of involuntary manslaughter, trial judge did not err in failing to submit involuntary manslaughter as a possible verdict. State v. Clark, 325 N.C. 677 , 386 S.E.2d 191, 1989 N.C. LEXIS 599 (1989).

Assuming error in court’s failure to give a charge on involuntary manslaughter, it was harmless in view of the verdict of first-degree murder on the theory of premeditation and deliberation. State v. Hardison, 326 N.C. 646 , 392 S.E.2d 364, 1990 N.C. LEXIS 296 (1990).

Where a jury is properly instructed on the elements of first and second degree murder and thereafter returns a verdict of guilty of first degree murder based on premeditation and deliberation, any error in the trial court’s failure to instruct the jury on involuntary manslaughter is harmless even if the evidence would have supported such an instruction. State v. Jones, 339 N.C. 114 , 451 S.E.2d 826, 1994 N.C. LEXIS 730 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873, 1995 U.S. LEXIS 4455 (1995).

Failure to Charge on Voluntary Manslaughter Not Prejudicial. —

Where the court submitted to the jury possible verdicts of first-degree murder, second-degree murder, and not guilty, and the jury convicted the defendants of first-degree murder, even if there was sufficient evidence to support an instruction on voluntary manslaughter, in light of the jury’s verdict, the trial court’s failure to give an instruction was thereon harmless error. State v. Bowie, 340 N.C. 199 , 456 S.E.2d 771, 1995 N.C. LEXIS 235 (1995), cert. denied, 516 U.S. 994, 116 S. Ct. 529, 133 L. Ed. 2d 435, 1995 U.S. LEXIS 7931 (1995), writ denied, 363 N.C. 657 , 685 S.E.2d 509, 2009 N.C. LEXIS 902 (2009).

Where the trial court instructed the jury that it could find defendant guilty of first-degree murder, based either on the theory of premeditation and deliberation or the theory of felony murder, guilty of second-degree murder, or not guilty, and the jury returned a verdict of first-degree murder on both theories submitted, even if it was error to fail to instruct the jury regarding voluntary manslaughter, such error was harmless. State v. Leach, 340 N.C. 236 , 456 S.E.2d 785, 1995 N.C. LEXIS 243 (1995).

Error in Instruction on Manslaughter — Held Harmless. —

Where a jury was properly instructed as to both degrees of murder and yet found defendant guilty of murder in the first degree rather than the second degree, error in the charge on manslaughter was harmless. State v. Freeman, 275 N.C. 662 , 170 S.E.2d 461, 1969 N.C. LEXIS 482 (1969); State v. Fowler, 285 N.C. 90 , 203 S.E.2d 803, 1974 N.C. LEXIS 925 (1974), vacated in part, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2264 (1976).

Same — Not Harmless. —

When the jury is instructed that it may find defendant guilty of murder in the first degree, murder in the second degree, manslaughter, or not guilty, and the verdict is guilty of murder in the second degree, an error in the charge on manslaughter will require a new trial. State v. Freeman, 275 N.C. 662 , 170 S.E.2d 461, 1969 N.C. LEXIS 482 (1969).

In a prosecution for first-degree murder, a new trial was required where the trial judge twice and at crucial times in the charge to the jury gave an incorrect instruction as to the definition of voluntary manslaughter and related it to the evidence in a manner which would not disclose patent error to the average juror, despite the fact that the trial judge properly defined voluntary manslaughter in another portion of the charge. State v. Cousins, 289 N.C. 540 , 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976).

Instructions on Involuntary Manslaughter and Second-Degree Murder Not Required. —

Neither involuntary manslaughter nor second-degree murder are applicable when a victim is killed in the course of a felony set forth in G.S. 14-17 , so no lesser-included offense instruction on those offenses is required. State v. Ray, 149 N.C. App. 137, 560 S.E.2d 211, 2002 N.C. App. LEXIS 130 (2002), aff'd, 356 N.C. 665 , 576 S.E.2d 327, 2003 N.C. LEXIS 33 (2003).

Failure to Submit Lesser Offenses Not Prejudicial Where Defendant Is Convicted of Felony Murder. —

Where defendant was found guilty of murder in the first degree on theory of felony murder and was found not guilty on charge of first-degree murder with premeditation and deliberation, no prejudice resulted from the court’s failure to submit second-degree murder or involuntary manslaughter as possible verdicts. State v. Vines, 317 N.C. 242 , 345 S.E.2d 169, 1986 N.C. LEXIS 2786 (1986).

Submission of Lesser Offense as Prejudicial Error. —

If there is evidence of self-defense and no evidence of involuntary manslaughter, it is prejudicial error to submit a charge of involuntary manslaughter in a trial for second-degree murder. State v. Brooks, 46 N.C. App. 833, 266 S.E.2d 3, 1980 N.C. App. LEXIS 2926 (1980).

Submission of Lesser Offense Not Error. —

Even though the evidence established all the elements of first-degree murder, it was not error to submit a charge of second-degree murder to the jury because the trial court submitted only second-degree murder and the jury could only find defendant guilty or not guilty of that offense. State v. Spivey, 102 N.C. App. 640, 404 S.E.2d 23, 1991 N.C. App. LEXIS 486 (1991).

Evidence that defendant and a person he killed were drinking and arguing before the victim was stabbed was sufficient to negate premeditation and malice, and the trial court properly instructed the jury on second-degree murder and voluntary manslaughter as lesser-included offenses of first-degree murder, even though defendant asked the court not to give those instructions. State v. Beck, 163 N.C. App. 469, 594 S.E.2d 94, 2004 N.C. App. LEXIS 405 (2004), aff'd in part and rev'd in part, 359 N.C. 611 , 614 S.E.2d 274, 2005 N.C. LEXIS 644 (2005).

Conviction of Lesser Offense Renders Error in Submission of Greater Offense Harmless. —

Where the jury convicts the defendant of murder in the second degree, asserted error in submitting the question of defendant’s guilt of murder in the first degree is rendered harmless. State v. Casper, 256 N.C. 99 , 122 S.E.2d 805, 1961 N.C. LEXIS 699 (1961), cert. denied, 376 U.S. 927, 84 S. Ct. 691, 11 L. Ed. 2d 622, 1964 U.S. LEXIS 1942 (1964); State v. Hamilton, 19 N.C. App. 436, 199 S.E.2d 159, 1973 N.C. App. LEXIS 1675 , cert. denied, 284 N.C. 256 , 200 S.E.2d 656, 1973 N.C. LEXIS 850 (1973).

The submission of a question regarding the guilt of a defendant of murder in the second degree becomes harmless when the jury returns a verdict of manslaughter. State v. Bryant, 282 N.C. 92 , 191 S.E.2d 745, 1972 N.C. LEXIS 890 (1972), cert. denied, 410 U.S. 958, 93 S. Ct. 1432, 35 L. Ed. 2d 691, 1973 U.S. LEXIS 3268 (1973), cert. denied, 410 U.S. 987, 93 S. Ct. 1516, 36 L. Ed. 2d 184, 1973 U.S. LEXIS 3067 (1973); State v. Chavis, 30 N.C. App. 75, 226 S.E.2d 389, 1976 N.C. App. LEXIS 2149 , cert. denied, 290 N.C. 778 , 229 S.E.2d 33, 1976 N.C. LEXIS 1203 (1976).

Defendant’s conviction of voluntary manslaughter would render harmless an error, had error been committed, in submitting to the jury the question of defendant’s guilt of the more serious offense, at least absent any showing that the verdict of guilty of the lesser offense was affected thereby. State v. McLamb, 20 N.C. App. 164, 200 S.E.2d 838, 1973 N.C. App. LEXIS 1500 (1973).

It was not error to refuse to charge the jury on the lesser included offenses of voluntary and involuntary manslaughter, where there was no evidence that defendant was guilty of manslaughter. The State’s evidence indicated only a deliberate, intentional homicide, while defendant’s evidence was that he fled the scene before victim was shot and killed by somebody else. State v. Burge, 100 N.C. App. 671, 397 S.E.2d 760, 1990 N.C. App. LEXIS 1128 (1990).

The elements of violence and taking were so joined in time and circumstances that the trial court did not err by refusing to instruct the jury on the lesser included offenses. State v. Hartman, 344 N.C. 445 , 476 S.E.2d 328, 1996 N.C. LEXIS 502 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1562, 137 L. Ed. 2d 708, 1997 U.S. LEXIS 2745 (1997).

Instruction on Second Degree Murder Properly Denied. —

No rational juror could have convicted defendant of second degree murder, and the trial court did not err in denying defendant’s request for such an instruction, because the evidence did not support an alcohol impairment defense, and because any conduct by defendant indicating remorse in the hours after the offense was more than outweighed by his words and actions during and immediately after the killings. Skipper v. Lee, 1999 U.S. Dist. LEXIS 21347 (E.D.N.C. Nov. 29, 1999), aff'd, 238 F.3d 414, 2000 U.S. App. LEXIS 35555 (4th Cir. 2000).

Trial court erred in denying defendant’s motion for a jury instruction on second-degree murder because the State presented evidence of each element of first-degree murder, including premeditation and deliberation, and no evidence negated those elements; defendant’s possible drug intoxication at the time of the killing did not support an inference that defendant did not premeditate and deliberate in his actions, and the State presented evidence regarding: defendant’s conduct and statements before the killing, including threats of harm to the victim. State v. Bedford, 208 N.C. App. 414, 702 S.E.2d 522, 2010 N.C. App. LEXIS 2444 (2010).

Instruction on Lesser-Included Offense Properly Not Given. —

Trial court properly refused to submit a lesser-included offense charge of misdemeanor death by vehicle in defendant’s criminal trial on charges of second degree murder, as the jury chose to convict defendant of second degree murder rather than involuntary manslaughter, such that providing the additional misdemeanor death option would not have made a difference; any such error was harmless. State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299, 2007 N.C. App. LEXIS 2253 (2007), cert. denied, 363 N.C. 586 , 683 S.E.2d 214, 2009 N.C. LEXIS 823 (2009).

IX.Charge and Indictment

Constitutionality of Short Form Indictment. —

The defendant’s “short-form” first degree murder indictment complied with the state and federal Constitutions although it failed to charge in the indictment the elements of the crime or aggravating circumstances as “facts (other than prior conviction) that increase the maximum penalty for the crime.” State v. Smith, 352 N.C. 531 , 532 S.E.2d 773, 2000 N.C. LEXIS 617 (2000), cert. denied, 532 U.S. 949, 121 S. Ct. 1419, 149 L. Ed. 2d 360, 2001 U.S. LEXIS 2605 (2001).

Court declined to find the short-form indictment authorized by G.S. 15-144 unconstitutional in light of Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999) for failing to allege all essential elements of first-degree murder. State v. Parker, 2000 N.C. App. LEXIS 1107 (N.C. Ct. App. Oct. 3, 2000), op. withdrawn, sub. op., 140 N.C. App. 169, 539 S.E.2d 656, 2000 N.C. App. LEXIS 1218 (2000).

Prisoner’s short-form murder indictment provided constitutionally adequate notice because it cited to both the statute authorizing the short-form, pursuant to G.S. 15-144 , and to the state’s murder statute, pursuant to G.S. 14-17 , thus notifying the prisoner that he needed to defend against a charge of first degree murder on any or all grounds, including murder by torture. Stroud v. Polk, 466 F.3d 291, 2006 U.S. App. LEXIS 26216 (4th Cir. 2006), cert. denied, 551 U.S. 1134, 127 S. Ct. 2978, 168 L. Ed. 2d 709, 2007 U.S. LEXIS 7787 (2007).

Short-Form Indictment Held Sufficient. —

Premeditation and deliberation did not have to be separately alleged in defendant’s short-form indictment which charged him with first-degree murder, and since the death penalty is the prescribed statutory maximum punishment for first-degree murder in North Carolina, no additional facts had to be charged in the indictment to provide defendant with notice that he was charged with first-degree murder and that the maximum penalty to which he could be subjected was death. State v. Braxton, 352 N.C. 158 , 531 S.E.2d 428, 2000 N.C. LEXIS 524 (2000), cert. denied, 531 U.S. 1130, 121 S. Ct. 890, 148 L. Ed. 2d 797, 2001 U.S. LEXIS 862 (2001).

Murder indictments that comply with G.S. 15-144 are sufficient to charge first-degree murder on the basis of any theory set forth in G.S. 14-17 , which included the charge of felony murder based on attempted rape. State v. Garcia, 358 N.C. 382 , 597 S.E.2d 724, 2004 N.C. LEXIS 669 (2004), cert. denied, 543 U.S. 1156, 125 S. Ct. 1301, 161 L. Ed. 2d 122, 2005 U.S. LEXIS 1595 (2005).

Defendant’s conviction for first degree murder, pursuant to a theory of aiding and abetting under G.S. 14-5.2 , was affirmed because: (1) the short form indictment properly apprised defendant of the charges against him under G.S. 15-144 ; and (2) there was no variance with the evidence as the state’s evidence presented supported the indictment for first degree murder. State v. Glynn, 178 N.C. App. 689, 632 S.E.2d 551, 2006 N.C. App. LEXIS 1676 (2006), writ denied, 819 S.E.2d 732, 2018 N.C. LEXIS 984 (N.C. 2018).

First degree murder indictment that stated in part that defendant “unlawfully, willfully, and feloniously did. .. of malice aforethought kill and murder Rudolph Hughes. This act was in violation of North Carolina General Statute 14-17,” was a valid short form indictment under G.S. 15-144 . State v. Hester, 216 N.C. App. 286, 715 S.E.2d 905, 2011 N.C. App. LEXIS 2152 (2011).

Trial court did not err by refusing defendant’s request to require the State of North Carolina to disclose its felony murder theory before the jury was empaneled because, although the State used a short-form indictment to charge defendant with murder, the indictment was sufficient and the State’s legal theories were not factual information subject to inclusion in a bill of particulars. Moreover, defendant failed to establish that defendant could not adequately prepare a defense without knowledge of the State’s legal theory. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486, 2015 N.C. App. LEXIS 449 (2015).

Short form indictment for first-degree murder was sufficient to confer jurisdiction upon the courts; premeditation and deliberation did not need to be separately alleged in the indictment. State v. Sindy Lina Abbitt, 2021-NCCOA-403, 278 N.C. App. 692, 863 S.E.2d 301, 2021- NCCOA-403, 2021 N.C. App. LEXIS 421 (2021).

Short form indictment for first-degree murder was sufficient to confer jurisdiction upon the courts; premeditation and deliberation did not need to be separately alleged in the indictment. State v. Sindy Lina Abbitt, 2021-NCCOA-403, 278 N.C. App. 692, 863 S.E.2d 301, 2021- NCCOA-403, 2021 N.C. App. LEXIS 421 (2021).

Short-Form Indictments Did Not Have to Allege Aggravating Factors. —

Where defendant pled guilty to second-degree murder, the trial court did not err in finding the fact that the victim was eight months pregnant to be an aggravating factor and in sentencing him in the aggravated range; as defendant was indicted using a short-form murder indictment, the aggravating factors were not required to be alleged. State v. Hasty, 181 N.C. App. 144, 639 S.E.2d 94, 2007 N.C. App. LEXIS 33 (2007).

The State is not generally required to elect between legal theories in a murder prosecution prior to trial. State v. Wingard, 317 N.C. 590 , 346 S.E.2d 638, 1986 N.C. LEXIS 2411 (1986).

The State is not required at any time to elect a theory upon which it will proceed against defendant on a charge of first degree murder, and it is proper for the trial court to submit the issue of defendant’s guilt of that charge to the jury on each of the theories of first degree murder supported by substantial evidence presented at trial; rather than have the jury render a general verdict if it finds defendant guilty of first degree murder, the better practice is for the trial court to have the jury specify the theory or theories upon which it finds first degree murder to have been established beyond a reasonable doubt. State v. Clark, 325 N.C. 677 , 386 S.E.2d 191, 1989 N.C. LEXIS 599 (1989).

Allegation of Means. —

This section does not require an allegation or count to be contained in the bill of indictment as to the means used in committing the murder. The statute only classifies the crime as to degree and punishment in the manner therein set forth. State v. Smith, 223 N.C. 457 , 27 S.E.2d 114, 1943 N.C. LEXIS 299 (1943).

An indictment under G.S. 15-144 will support a verdict of murder in the first degree if the jury finds beyond a reasonable doubt that an accused killed with malice and after premeditation and deliberation or in the perpetration or attempted perpetration of any arson, rape, robbery, burglary or other felony the commission of which creates any substantial foreseeable human risk and actually results in loss of life. State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

The murder indictment which complied with G.S. 15-144 was sufficient and did not violate the defendant’s due process and equal protection rights under the United States Constitution. State v. Barnett, 141 N.C. App. 378, 540 S.E.2d 423, 2000 N.C. App. LEXIS 1397 (2000), aff'd, 354 N.C. 350 , 554 S.E.2d 644, 2001 N.C. LEXIS 1079 (2001).

Short-form indictment under G.S. 15-144 is sufficient to charge murder in the first degree under a theory of lying in wait, just as it is sufficient to charge murder in the first degree on the theory of felony murder or premeditation and deliberation. State v. Brown, 320 N.C. 179 , 358 S.E.2d 1, 1987 N.C. LEXIS 2180 , cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406, 1987 U.S. LEXIS 5019 (1987).

Including Verdict of Felony Murder. —

A felony murder may be proven by the State although the bill of indictment charges murder in the statutory language of G.S. 15-144 . State v. Lee, 277 N.C. 205 , 176 S.E.2d 765, 1970 N.C. LEXIS 566 (1970).

Allegation of Underlying Felony Unnecessary. —

Nothing contained in the Act of 1893 required any alteration or modification of the existing form of indictment for murder. Therefore, it was not necessary that an indictment for murder committed in the attempt to perpetrate larceny should contain a specific allegation of the attempted larceny, such allegation not having been necessary in indictments prior to the said Act of 1893. State v. Covington, 117 N.C. 834 , 23 S.E. 337, 1895 N.C. LEXIS 161 (1895).

An indictment must be sufficient in form to allege murder and support a conviction of murder in the first degree under G.S. 15-144 . It is not required that the indictment allege that the murder was committed in the perpetration of a robbery or other felony in order that it be sufficient to support a verdict of murder in the first degree. State v. Frazier, 280 N.C. 181 , 185 S.E.2d 652, 1972 N.C. LEXIS 1221 , vacated, 409 U.S. 1004, 93 S. Ct. 453, 34 L. Ed. 2d 295, 1972 U.S. LEXIS 621 (1972).

Separate Indictment Not Required for Underlying Felony. —

When the State prosecutes a defendant for first-degree murder under the felony-murder rule, the solicitor need not secure a separate indictment for the underlying felony. State v. Williams, 305 N.C. 656 , 292 S.E.2d 243, 1982 N.C. LEXIS 1383 , cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982).

The better practice where the State prosecutes a defendant for first-degree murder on the theory that the homicide was committed in the perpetration of or attempt to perpetrate a felony under this section would be that the district attorney should not secure a separate indictment for the felony. If he does, and there is a conviction of both, the defendant will be sentenced for the murder and the judgment will be arrested for the felony under the merger rule. If the separate felony indictment is treated as surplusage only and the murder charge is submitted to the jury under the felony-murder rule, then obviously the defendant cannot thereafter be tried for the felony. State v. Carey, 288 N.C. 254 , 218 S.E.2d 387, 1975 N.C. LEXIS 975 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1209, 1976 U.S. LEXIS 4210 (1976).

Specific Allegation of Underlying Felony Constitutes Election by State. —

By specifically alleging that the offense was committed in the perpetration of rape the State confined itself to that allegation in order to show murder in the first degree. Without a specific allegation, the State could show murder by any of the means embraced in the statute. State v. Davis, 253 N.C. 86 , 116 S.E.2d 365, 1960 N.C. LEXIS 474 (1960), cert. denied, 365 U.S. 855, 81 S. Ct. 816, 5 L. Ed. 2d 819, 1961 U.S. LEXIS 1601 (1961).

Election by State of Felony Murder or Premeditation Theory. —

The State is not required to elect prior to the introduction of evidence as to whether it will proceed under the felony-murder rule or on the basis of premeditation and deliberation. State v. Swift, 290 N.C. 383 , 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976).

Remedy for Alternative Indictment. —

After the return of a verdict of guilty of murder in the first degree, defendant moved in arrest of judgment because the indictment was alternative, indefinite, and uncertain. It was held that although the indictment was alternative, either charge constituted murder in the first degree under this section, informing defendant of the crime charged, and defendant’s remedy, if he desired greater certainty, was by motion for a bill of particulars under G.S. 15-143 (now G.S. 15A-925 ). State v. Puckett, 211 N.C. 66 , 189 S.E. 183, 1937 N.C. LEXIS 1 (1937).

Waiver by State of First-Degree Murder Charge. —

The district attorney during the trial of defendant on a capital offense, and when defendant was voluntarily absent, could properly elect to waive the charge of first-degree murder and proceed with the prosecution of a noncapital offense, second-degree murder. State v. Mulwee, 27 N.C. App. 366, 219 S.E.2d 304, 1975 N.C. App. LEXIS 1852 , cert. denied, 288 N.C. 732 , 220 S.E.2d 622, 1975 N.C. LEXIS 1052 (1975).

Effect of Announcement That State Would Not Prosecute for First Degree Murder. —

A solicitor’s (district attorney’s) announcement that the State would not prosecute for the capital felony of first degree murder, but for a lesser included offense, did not render incompetent any pertinent evidence bearing on the defendant’s guilt. State v. Ferguson, 280 N.C. 95 , 185 S.E.2d 119, 1971 N.C. LEXIS 1096 (1971).

Trial on Second-Degree Charge Not Grounds for Quashing Bill. —

A defendant who was tried on a bill of indictment returned by the grand jury charging him with murder in the first degree could not quash the bill on the ground that, following a preliminary hearing, he was bound over for trial on the lesser charge of second degree murder. State v. Mack, 282 N.C. 334 , 193 S.E.2d 71, 1972 N.C. LEXIS 961 (1972).

Indictment held sufficient to charge conspiracy to murder. See State v. Graham, 24 N.C. App. 591, 211 S.E.2d 805, 1975 N.C. App. LEXIS 2449 , cert. denied, 287 N.C. 262 , 214 S.E.2d 434, 1975 N.C. LEXIS 1107 (1975).

Juvenile Delinquency Petition Properly Alleged Murder. —

Petition alleging that “juvenile was delinquent as defined by former G.S. 7A-517(12) [see now G.S. 7B-101 ] in that in Durham County and on or about December 30, 1997, the above named juvenile unlawfully, willfully and feloniously did of malice aforethought kill and murder victim” properly alleged first degree murder under G.S. 14-17 , satisfied the requirements of former G.S. 7A-560 [see now G.S. 7B-402 ], and made transfer of case to Superior Court mandatory under former G.S. 7A-608 [see now G.S. 7B-2200 ]. In re K.R.B., 134 N.C. App. 328, 517 S.E.2d 200, 1999 N.C. App. LEXIS 744 (1999).

A charge of murder in the first degree includes murder in the second degree and manslaughter. State v. Roseboro, 276 N.C. 185 , 171 S.E.2d 886, 1970 N.C. LEXIS 664 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971).

Charges of child abuse and child neglect were not merged into a charge of second-degree murder, as the elements of child abuse and neglect are distinct and independent of the elements constituting second-degree murder. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

Presence at Murder Scene. —

The evidence of defendant’s actual or constructive presence at the scene of the murder was sufficiently substantial that a charge on this feature of the case was not necessary. State v. Hunt, 339 N.C. 622 , 457 S.E.2d 276, 1994 N.C. LEXIS 717 (1994).

X.Pleas of Guilty and Not Guilty

Defendant’s plea of not guilty puts in issue every essential element of the crime of first-degree murder, and the State must satisfy the jury from the evidence beyond a reasonable doubt that defendant unlawfully killed the deceased with malice and in execution of an actual, specific intent to kill formed after premeditation and deliberation. State v. Propst, 274 N.C. 62 , 161 S.E.2d 560, 1968 N.C. LEXIS 734 (1968), limited, State v. Hammonds, 290 N.C. 1 , 224 S.E.2d 595, 1976 N.C. LEXIS 1018 (1976).

Defendant’s plea of not guilty puts into issue all of the elements of the charges against him and the burden remains on the State to satisfy the jury beyond a reasonable doubt of all of the elements of the offense charged, including the lesser offense of second-degree murder. State v. Griffin, 288 N.C. 437 , 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976).

And Entitles Him to Show Both Self-Defense and Accident. —

The defendant’s plea of not guilty entitled him to present evidence that he acted in self-defense, that the shooting was accidental, or both; election is not required. State v. Todd, 264 N.C. 524 , 142 S.E.2d 154, 1965 N.C. LEXIS 1229 (1965).

The fact that the law imposed the threat of the gas chamber did not render plea of guilty to second degree murder involuntary. Petitioner entered his plea to a lesser offense of murder and was not exposed to the defect which prompted the holding in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138, 1968 U.S. LEXIS 2002 (1968); Pickett v. Henry, 315 F. Supp. 1138, 1970 U.S. Dist. LEXIS 10703 (E.D.N.C. 1970).

There is no rule which precludes a plea of guilty to a crime for which the maximum punishment is life imprisonment. State v. Watkins, 283 N.C. 17 , 194 S.E.2d 800, 1973 N.C. LEXIS 894 , cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235, 1973 U.S. LEXIS 1220 (1973).

Premeditation and Deliberation as Aggravating Factors in Sentencing Defendant Who Pleads Guilty to Second-Degree Murder. —

As premeditation and deliberation are not elements of murder in the second degree, if a defendant charged with murder in the first degree pleads guilty to murder in the second degree, the sentencing judge may conclude that for purposes of sentencing premeditation and deliberation have been established by a preponderance of the evidence and therefore may be used as an aggravating factor. State v. Melton, 307 N.C. 370 , 298 S.E.2d 673, 1983 N.C. LEXIS 1085 (1983).

Effect of Principal’s Guilty Plea to Voluntary Manslaughter on Charges Against Accessory. —

Principal’s guilty plea to voluntary manslaughter did not determine that the crime of second degree murder had not been committed, thus barring trial of one who aided and abetted. State v. Cassell, 24 N.C. App. 717, 212 S.E.2d 208, 1975 N.C. App. LEXIS 2483 , cert. denied, 287 N.C. 261 , 214 S.E.2d 433, 1975 N.C. LEXIS 1103 (1975).

Defendant’s Consent to Plea. —

Just prior to closing arguments defendant consented on the record to his attorney’s decision to concede guilt to second-degree murder or voluntary manslaughter. As per se error is based on a defendant not consenting to his counsel’s admission of his guilt, defendant’s consent prior to the closing arguments amounted to ratification of defense counsel’s earlier statement and cured any possible error. State v. Basden, 339 N.C. 288 , 451 S.E.2d 238, 1994 N.C. LEXIS 725 (1994), cert. denied, 515 U.S. 1152, 115 S. Ct. 2599, 132 L. Ed. 2d 845, 1995 U.S. LEXIS 4241 (1995).

Guilty Plea Voluntary. —

Although the inmate claimed that his guilty pleas were not voluntary and intelligent, in violation of his Sixth and Fourteenth Amendment rights, as he did not know he was admitting guilt of premeditated and deliberate murder, the inmate voluntarily pled with full knowledge of the charges against him and the consequences of his pleas and since the State possessed overwhelming evidence that the inmate acted with premeditation and deliberation, his pleas made premeditation and deliberation an admitted fact. The inmate also argued he was unaware of the consequences of his plea, as he did not know his admission of guilt would permit the State to submit his underlying felonies as aggravating factors during his sentencing, but this argument was rejected because, even if true, it did not entitle the inmate to relief. Meyer v. Branker, 506 F.3d 358, 2007 U.S. App. LEXIS 26335 (4th Cir. 2007), cert. denied, 554 U.S. 925, 128 S. Ct. 2975, 171 L. Ed. 2d 899, 2008 U.S. LEXIS 5074 (2008).

XI.Verdict

Degree of Murder Must Be Determined. —

Under this section, distinguishing murder into two degrees, the jury, on conviction, must determine in their verdict whether the crime is murder in the first or second degree. State v. Gadberry, 117 N.C. 811 , 23 S.E. 477, 1895 N.C. LEXIS 160 (1895); State v. Truesdale, 125 N.C. 696 , 34 S.E. 646, 1899 N.C. LEXIS 289 (1899).

Requisites of First-Degree Murder Verdict. —

For a conviction of murder in the first degree under this section and G.S. 15-172 , the jury must find specifically under the evidence that this degree of crime has been committed by the defendant, and the verdict must be received in open court in the presence of the presiding judge under constitutional mandate, N.C. Const., Art. I, § 13, 17, which right may not be waived. State v. Bazemore, 193 N.C. 336 , 137 S.E. 172, 1927 N.C. LEXIS 338 (1927).

Sufficient Evidence to Support Jury Verdict. —

Defendant’s convictions for first-degree murder and conspiracy to commit first-degree murder were affirmed because no improper promises were made to defendant in order to induce an involuntary confession and the medical evidence, along with defendant’s confession, were sufficient to support the jury’s verdict. State v. Shelly, 181 N.C. App. 196, 638 S.E.2d 516, 2007 N.C. App. LEXIS 71 (2007).

Verdict of Second-Degree Murder in Prosecution for First-Degree Murder. —

In a case of first-degree murder, committed after premeditation and deliberation, a verdict of second-degree murder is permissible if the jury should fail to find premeditation and deliberation. State v. Hill, 276 N.C. 1 , 170 S.E.2d 885, 1969 N.C. LEXIS 335 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971).

Manslaughter Is Necessarily Disproved on Verdict of First-Degree Murder. —

In proving the elements of first-degree murder beyond any reasonable doubt in the jurors’ minds, the State necessarily disproved manslaughter beyond a reasonable doubt. State v. Bush, 307 N.C. 152 , 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

As Is Heat of Passion. —

When the jury finds beyond a reasonable doubt that the defendant killed his victim with premeditation, they also necessarily find beyond a reasonable doubt that the State has shown that the defendant did not act in the heat of passion. State v. Bush, 307 N.C. 152 , 297 S.E.2d 563, 1982 N.C. LEXIS 1670 (1982), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

Defendant was not prejudiced by the court’s submission to the jury of the charge of first degree murder on the theory of premeditation and deliberation where the jury found defendant guilty of first-degree murder only on the theory of felony murder. State v. Price, 344 N.C. 583 , 476 S.E.2d 317, 1996 N.C. LEXIS 498 (1996).

XII.Capital Punishment

Editor’s Note. —

For additional cases regarding capital punishment, see the case notes under G.S. 15A-2000 .

Legislature May Constitutionally Impose Death as Punishment. —

Just as the legislature acts within its constitutional power in defining first-degree murder to include felony murder, it is also within its constitutional power to determine that first-degree murder, including felony murder, may be punished by death, provided that the death penalty statute itself is constitutional. State v. Williams, 305 N.C. 656 , 292 S.E.2d 243, 1982 N.C. LEXIS 1383 , cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982).

The imposition of the death penalty upon a conviction of murder is expressly authorized by N.C. Const., Art. XI, § 2. State v. Atkinson, 275 N.C. 288 , 167 S.E.2d 241, 1969 N.C. LEXIS 393 (1969), rev'd, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971).

Judgment and sentence of death upon conviction of first-degree murder is not unconstitutional. State v. Griffin, 288 N.C. 437 , 219 S.E.2d 48, 1975 N.C. LEXIS 1009 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4212 (1976); State v. Bush, 289 N.C. 159 , 221 S.E.2d 333, 1976 N.C. LEXIS 1239 , vacated, 429 U.S. 809, 97 S. Ct. 46, 50 L. Ed. 2d 69 (1976).

Imposition of death penalty for first-degree murder is not cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the United States Constitution.State v. Spaulding, 288 N.C. 397 , 219 S.E.2d 178, 1975 N.C. LEXIS 1007 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210, 1976 U.S. LEXIS 4213 (1976); State v. Carter, 289 N.C. 35 , 220 S.E.2d 313, 1975 N.C. LEXIS 872 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4218 (1976).

Retroactive Applicability of Invalidity of Unanimity Requirement. —

The 1990 case of McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), which invalidated the unanimity requirement of North Carolina’s capital sentencing scheme, should be applied retroactively to capital cases which became final before McKoy was decided. State v. Zuniga, 336 N.C. 508 , 444 S.E.2d 443, 1994 N.C. LEXIS 297 (1994).

Effect of Furman v. Georgia. —

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), holds that the Eighth and Fourteenth Amendments of the U.S. Constitution will no longer tolerate the infliction of a death sentence where either the jury or the judge is permitted to impose that sentence as a matter of discretion. State v. Rankin, 282 N.C. 572 , 193 S.E.2d 740, 1973 N.C. LEXIS 1110 (1973); State v. Waddell, 282 N.C. 431 , 194 S.E.2d 19, 1973 N.C. LEXIS 1100 (1973); State v. Watkins, 283 N.C. 17 , 194 S.E.2d 800, 1973 N.C. LEXIS 894 , cert. denied, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 235, 1973 U.S. LEXIS 1220 (1973); State v. Blackmon, 284 N.C. 1 , 199 S.E.2d 431, 1973 N.C. LEXIS 772 (1973).

Where the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), held that the imposition of the death penalty, under certain state statutes and in the application thereof, was unconstitutional, that decision did not affect the conviction but only the death sentence. State v. Wright, 282 N.C. 364 , 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972); State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972).

Former Mandatory Death Penalty Provision of Section Held Unconstitutional. —

North Carolina’s mandatory death penalty statute for first-degree murder contained in this section as amended in 1973 and before its amendment in 1977 departed markedly from contemporary standards respecting the imposition of the punishment of death and could not be applied consistently with the Eighth and Fourteenth Amendments’ requirement that the State’s power to punish be exercised within the limits of civilized standards, since it provided no objective standards for the jury and failed to allow for consideration of the particular character and record of each defendant with a view toward mitigation of the offense. Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944, 1976 U.S. LEXIS 85 (1976).

Same — The Effect of Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976), was to return the construction of this statute to its post-Furman (Furman v. Georgia, 1972 U.S. LEXIS 169, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)), pre-Waddell (State v. Waddell, 282 N.C. 431 , 194 S.E.2d 19, 1973 N.C. LEXIS 1100 (1973)) status. Carey v. Garrison, 452 F. Supp. 485, 1978 U.S. Dist. LEXIS 17246 (W.D.N.C. 1978) (State v. Waddell having held that provisions giving the jury discretion to impose sentences of life imprisonment in capital cases were unconstitutional, but were severable, with the result that the death penalty would become mandatory in such cases) .

Notice of Penalty Is Not Constitutionally Required. —

The United States Constitution does not require that notice be given that the first-degree murder charge carried with it the possibility that defendant might receive the death penalty upon conviction. State v. Woods, 307 N.C. 213 , 297 S.E.2d 574, 1982 N.C. LEXIS 1673 (1982).

Retention, etc., of Death Penalty Is Legislative Question. —

The matter of retention, modification or abolition of the death penalty is a question for the lawmaking authorities rather than the courts. State v. Waddell, 282 N.C. 431 , 194 S.E.2d 19, 1973 N.C. LEXIS 1100 (1973).

Standing to Challenge Constitutionality. —

Furman v. Georgia is without significance when the jury in a murder trial returns a verdict recommending life imprisonment. In that situation the defendant has no standing to raise the constitutionality of the death penalty or of a statute because it provides for that punishment. State v. Wright, 282 N.C. 364 , 192 S.E.2d 818, 1972 N.C. LEXIS 964 (1972); State v. Duncan, 282 N.C. 412 , 193 S.E.2d 65, 1972 N.C. LEXIS 970 (1972); State v. Rankin, 282 N.C. 572 , 193 S.E.2d 740, 1973 N.C. LEXIS 1110 (1973).

A defendant may not be subject to a potential death sentence absent a showing of actual intent to commit one or more of the underlying felonies delineated or described in this statute. State v. Jones, 353 N.C. 159 , 538 S.E.2d 917, 2000 N.C. LEXIS 894 (2000).

Cases in Which Defendants Received Death Sentence Remanded Pursuant to Mandate of United States Supreme Court. —

Pursuant to mandates of the Supreme Court of the United States in Hill v. North Carolina, 403 U.S. 948, 91 S. Ct. 2287, 29 L. Ed. 2d 860 (1971); Atkinson v. North Carolina, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971); Williams v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 860 (1971); Sanders v. North Carolina, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860 (1971); and Roseboro v. North Carolina, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971), first-degree murder cases in which the defendants received the death sentence were remanded to the superior court with direction that the defendants be sentenced to life imprisonment in the State’s prison. State v. Hill, 279 N.C. 371 , 183 S.E.2d 97, 1971 N.C. LEXIS 804 (1971); State v. Atkinson, 279 N.C. 386 , 183 S.E.2d 106, 1971 N.C. LEXIS 806 (1971); State v. Williams, 279 N.C. 388 , 183 S.E.2d 106, 1971 N.C. LEXIS 807 (1971); State v. Sanders, 279 N.C. 389 , 183 S.E.2d 107, 1971 N.C. LEXIS 808 (1971); State v. Roseboro, 279 N.C. 391 , 183 S.E.2d 108, 1971 N.C. LEXIS 809 (1971).

Resentencing Convicted Murderer Not Ex Post Facto Application of Law. —

Where an individual was convicted of murder and sentenced to death, which sentence was later invalidated, resentencing the convicted murderer to life imprisonment did not violate the due process clause as an ex post facto application of the law, especially since before the time of the convicted murderer’s June 19, 1973, offense, North Carolina had given notice in the 1969 version of this section that it intended to exact the maximum possible penalty for first-degree murder. Carey v. Garrison, 452 F. Supp. 485, 1978 U.S. Dist. LEXIS 17246 (W.D.N.C. 1978).

When Murder Considered Committed for Purposes of Ex Post Facto Punishment Prohibition. —

For purposes of the prohibition against ex post facto legislation, a murder was committed when the murderous acts were performed, and not when death resulted. Therefore, where defendant administered poison to her husband on three occasions, all before June 1, 1977, at a time when the maximum punishment for first-degree murder was life imprisonment, imposition of the death sentence under G.S. 15A-2002 would violate the prohibition against imposition of an ex post facto punishment. State v. Detter, 298 N.C. 604 , 260 S.E.2d 567, 1979 N.C. LEXIS 1408 (1979).

Prosecutor’s Argument. —

Where the prosecuting attorney, while making a vigorous plea for the imposition of the death penalty, did not depart from or distort the record, and there was nothing in his argument which would tend to mislead the jury or deprive the defendant of a fair trial, the argument was proper. State v. Westbrook, 279 N.C. 18 , 181 S.E.2d 572, 1971 N.C. LEXIS 749 (1971), vacated, 408 U.S. 939, 92 S. Ct. 2873, 33 L. Ed. 2d 761, 1972 U.S. LEXIS 1952 (1972).

Where the prosecuting attorney, in his argument, traveled outside the record, used language offensive in its nature, and in support of his plea for the death penalty, injected into his argument his own account of his record as a solicitor in other cases, for the purpose of persuading the jury that he did not ask the death penalty where it was not deserved, his argument was improper. State v. Smith, 279 N.C. 163 , 181 S.E.2d 458, 1971 N.C. LEXIS 762 (1971).

Argument not improper where the prosecutor argued the only way the jury could prevent defendant from killing again was to give him the death penalty. State v. Basden, 339 N.C. 288 , 451 S.E.2d 238, 1994 N.C. LEXIS 725 (1994), cert. denied, 515 U.S. 1152, 115 S. Ct. 2599, 132 L. Ed. 2d 845, 1995 U.S. LEXIS 4241 (1995).

The prosecutor’s argument that the death penalty would prevent the defendant from killing again was a proper argument and his argument that there had never been a more appropriate case for the death penalty and that the defendant had worked for and earned a sentence of death, were reasonable arguments in light of the evidence of the defendant’s pattern of violent and deadly behavior. State v. Jones, 339 N.C. 114 , 451 S.E.2d 826, 1994 N.C. LEXIS 730 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873, 1995 U.S. LEXIS 4455 (1995).

Although the State Supreme Court cautioned counsel against using Biblical arguments when arguing to the jury that a defendant deserved the death penalty, the court held that the prosecutor’s use of Biblical references during an argument to the jury in defendant’s case were not so grossly improper that the trial court erred by failing to intervene ex mero motu, and the court upheld defendant’s convictions for first-degree murder and robbery with a firearm based on evidence which showed that defendant shot a victim twice in the face with a shotgun and took the victim’s car and other personal property. State v. Haselden, 357 N.C. 1 , 577 S.E.2d 594, 2003 N.C. LEXIS 318 , cert. denied, 540 U.S. 988, 124 S. Ct. 475, 157 L. Ed. 2d 382, 2003 U.S. LEXIS 8097 (2003).

Sentence Not Disproportionate. —

Where defendant was convicted of three first-degree murders and the record established a cold-blooded, calculated course of conduct on the part of defendant which amounted to a wanton disregard for the value of human life, the two death sentences were not excessive or disproportionate. State v. Robinson, 339 N.C. 263 , 451 S.E.2d 196, 1994 N.C. LEXIS 724 (1994), cert. denied, 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818, 1995 U.S. LEXIS 4012 (1995), writ denied, 342 N.C. 417 , 465 S.E.2d 534, 1995 N.C. LEXIS 760 (1995), writ denied, 348 N.C. 76 , 505 S.E.2d 884, 1998 N.C. LEXIS 201 (1998), writ denied, 354 N.C. 73 , 553 S.E.2d 210, 2001 N.C. LEXIS 865 (2001).

Trial court’s judgment sentencing defendant to death was justified by evidence which showed that defendant and an accomplice forced their way into the victim’s house, and that the victim died after her throat was cut, she was stabbed multiple times, and she was shot twice in the head. State v. Watts, 357 N.C. 366 , 584 S.E.2d 740, 2003 N.C. LEXIS 827 (2003), cert. denied, 541 U.S. 944, 124 S. Ct. 1673, 158 L. Ed. 2d 370, 2004 U.S. LEXIS 2157 (2004).

Capital sentence for a death resulting from the attempted sale of crack cocaine was affirmed because the sentence was not disproportionate. State v. Squires, 357 N.C. 529 , 591 S.E.2d 837, 2003 N.C. LEXIS 1265 (2003), cert. denied, 541 U.S. 1088, 124 S. Ct. 2818, 159 L. Ed. 2d 252, 2004 U.S. LEXIS 4087 (2004).

Several factors supported the determination that imposition of the death penalty was neither excessive nor disproportionate where the evidence indicated that defendant began planning to kill the victim as soon as their telephone conversation ended the day before the murder; that defendant urged the victim to walk into the field for the ostensible purpose of setting up targets, then shot him without provocation; that the victim asked defendant not to shoot him again; that defendant fired three spaced shots into the victim; that the third shot was fired into the victim’s head as the victim lay helpless watching defendant; that defendant took the victim’s keys from his body after shooting him; and that defendant felt no remorse. State v. Hurst, 360 N.C. 181 , 624 S.E.2d 309, 2006 N.C. LEXIS 7 (2006), cert. denied, 549 U.S. 875, 127 S. Ct. 186, 166 L. Ed. 2d 131, 2006 U.S. LEXIS 7059 (2006), cert. denied, 364 N.C. 244 , 698 S.E.2d 664, 2010 N.C. LEXIS 422 (2010).

The State was entitled to present witnesses in the capital sentencing proceeding to prove the circumstances of prior convictions. State v. Harden, 344 N.C. 542 , 476 S.E.2d 658, 1996 N.C. LEXIS 500 (1996), cert. denied, 520 U.S. 1147, 117 S. Ct. 1321, 137 L. Ed. 2d 483, 1997 U.S. LEXIS 2017 (1997).

Demonstration of Murder for Personal Gain Not Required. —

In defendant’s trial on two counts of first-degree murder, the trial court erred by instructing jurors that they had to find defendant committed murder for personal gain, as an aggravating factor for purposes of determining if defendant should be sentenced to death, if they found that he was committing robbery with a dangerous weapon at the time a person who lived in the house and one of defendant’s accomplices were shot. State v. Jones, 357 N.C. 409 , 584 S.E.2d 751, 2003 N.C. LEXIS 828 (2003).

Use of Prior Murder for Sentencing Aggravator Not Double Jeopardy. —

Trial court’s denial of defendant’s pretrial motion to dismiss two murder charges against him in violation of G.S. 14-17 , based on double jeopardy pursuant to G.S. 15A-954 , was proper because the fact that in a prior murder case against defendant, the State had introduced evidence of the two murders in support of the aggravating circumstance described in G.S. 15A-2000(e)(11) was not tantamount to the State putting defendant on trial for those crimes; the jury’s consideration of defendant’s “other crimes of violence” in making its penalty recommendation on one murder was not logically equivalent to defendant receiving multiple punishment for the same crime. State v. Carter, 357 N.C. 345 , 584 S.E.2d 792, 2003 N.C. LEXIS 832 (2003), cert. denied, 541 U.S. 943, 124 S. Ct. 1670, 158 L. Ed. 2d 368, 2004 U.S. LEXIS 2144 (2004).

XIII.Appeal

Failure to Assign Error Precludes Review of Instructions. —

Where the defendant in a murder prosecution did not assign as error on direct appeal the failure of the trial judge in his instructions to place the burden of proving the absence of heat of passion or the absence of self-defense on the State, he waived his right to complain about such errors in post-conviction review. State v. Watson, 37 N.C. App. 399, 246 S.E.2d 25, 1978 N.C. App. LEXIS 2754 (1978).

Where the defendant in a prosecution for second-degree murder failed to raise at trial, on direct appeal or in a subsequent petition for post-conviction relief, the questions of the trial judge’s alleged error in instructing the jury that the burden was on the defendant to disprove malice to reduce the killing to voluntary manslaughter and to prove that he killed in self-defense, the defendant could not seek collateral review of the alleged error. State v. Locklear, 39 N.C. App. 671, 251 S.E.2d 638, 1979 N.C. App. LEXIS 2533 , cert. denied, 296 N.C. 739 , 254 S.E.2d 180, 1979 N.C. LEXIS 1290 (1979).

Failure to Preserve Evidence for Review. —

The trial court erred by not allowing the defendant to make an offer of proof and depriving her from preserving the proposed witness testimony in the record for the purpose of appellate review. State v. Brown, 116 N.C. App. 445, 448 S.E.2d 131, 1994 N.C. App. LEXIS 1034 (1994).

Error in Allowing New Trial. —

In a prosecution for murder the trial court erred in allowing the defendant a new trial on the basis that the retroactivity of the Mullaney rule, see Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 306 (1977), was applicable in his case, where the defendant appellant did not object or assign as error on appeal the instructions of the trial court to the jury requiring the defendant to prove the absence of malice or that he acted in self-defense in order to reduce the alleged crime of murder in the second degree to voluntary manslaughter. State v. Watson, 37 N.C. App. 399, 246 S.E.2d 25, 1978 N.C. App. LEXIS 2754 (1978).

Finding as to Mental Capacity Held Conclusive on Appeal. —

Where the jury, by its verdict, established that the defendant, at the time of the alleged offenses, had the mental capacity to know right from wrong with reference to these acts, that finding, supported as it was by ample evidence, was conclusive on appeal. State v. Shepherd, 288 N.C. 346 , 218 S.E.2d 176, 1975 N.C. LEXIS 982 (1975).

Review of State’s Argument in Capital Case. —

Despite trial counsel’s laxity, the State’s argument in capital cases is subject to limited appellate review for the existence of gross improprieties which make it plain that the trial court abused its discretion in failing to correct the prejudicial matters ex mero motu. State v. Pinch, 306 N.C. 1 , 292 S.E.2d 203, 1982 N.C. LEXIS 1386 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982), writ denied, 366 S.E.2d 868, 1988 N.C. LEXIS 183 (N.C. 1988); State v. Robinson, 336 N.C. 78 , 443 S.E.2d 306, 1994 N.C. LEXIS 229 (1994), cert. denied, 513 U.S. 1089, 115 S. Ct. 750, 130 L. Ed. 2d 650, 1995 U.S. LEXIS 276 (1995); State v. Rouse, 339 N.C. 59 , 451 S.E.2d 543, 1994 N.C. LEXIS 7 19 (1994), cert. denied, 516 U.S. 832, 116 S. Ct. 107, 133 L. Ed. 2d 60, 1995 U.S. LEXIS 5654 (1995), overruled in part, State v. Hurst, 360 N.C. 181 , 624 S.E.2d 309, 2006 N.C. LEXIS 7 (2006).

Ineffective Assistance of Counsel Claims. —

Where a State prisoner, who was convicted of first-degree murder, in violation of G.S. 14-17 , argued that his attorneys were ineffective because they failed to assert a diminished capacity defense, the prisoner was not entitled to federal habeas corpus relief because (1) the prisoner directed the attorneys to pursue the theory that another individual committed the murder; (2) the attorneys’ strategic decision to argue that the prisoner did not commit the murder was objectively reasonable; (3) the fact that the attorneys met with the prisoner only five times before trial did not establish their ineffectiveness; and (4) the State court reasonably held that asserting a diminished capacity defense would not have led to a different outcome. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

Defendant’s first degree murder conviction for stabbing his wife to death was affirmed because defendant failed to show ineffective assistance of counsel as he did not meet his burden of showing a reasonable probability that, but for defense counsel’s failure to raise an issue at trial, the result of his proceedings would have been different. State v. Nguyen, 178 N.C. App. 447, 632 S.E.2d 197, 2006 N.C. App. LEXIS 1571 (2006).

Where a prosecutor, during cross-examination in a second-degree murder trial, questioned defendant on the reason for omitting certain important facts from a voluntary discussion with a deputy, counsel’s failure to object did not constitute ineffective assistance. State v. Ezzell, 182 N.C. App. 417, 642 S.E.2d 274, 2007 N.C. App. LEXIS 695 (2007).

§ 14-17.1. Crime of suicide abolished.

The common-law crime of suicide is hereby abolished as an offense.

History. 1973, c. 1205.

Legal Periodicals.

For article, “Aid in Dying in North Carolina,” see 97 N.C. L. Rev. Addendum 1 (2019).

§ 14-18. Punishment for manslaughter.

Voluntary manslaughter shall be punishable as a Class D felony, and involuntary manslaughter shall be punishable as a Class F felony.

History. 4 Hen. VII, s. 13; 1816, c. 918, P.R; R.C., c. 34, s. 24; 1879, c. 255; Code, s. 1055; Rev., s. 3632; C.S., s. 4201; 1933, c. 249; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 112; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(q).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For case law survey as to homicide, see 45 N.C.L. Rev. 918 (1967).

For note on the burden of proof for affirmative defense in homicide cases, see 12 Wake Forest L. Rev. 423 (1976).

For note on the erosion of the retreat rule and self-defense, see 12 Wake Forest L. Rev. 1093 (1976).

For note discussing the availability of imperfect right of self-defense in homicide cases in light of State v. Norris, 303 N.C. 526 , 279 S.E.2d 570 (1981), see 4 Campbell L. Rev. 427 (1982).

For note on the battered woman syndrome, see 11 Campbell L. Rev. 263 (1989).

For article, “Aid in Dying in North Carolina,” see 97 N.C. L. Rev. Addendum 1 (2019).

CASE NOTES

Analysis

I.General Consideration

Burden of Proof. —

When the State undertakes a prosecution for unlawful homicide, it assumes the burden of producing evidence sufficient to prove that the deceased died as the result of a criminal act committed by the defendant. State v. Jones, 15 N.C. App. 537, 190 S.E.2d 278, 1972 N.C. App. LEXIS 1960 (1972).

In a prosecution for manslaughter, the State must produce evidence sufficient to establish beyond a reasonable doubt that the death proximately resulted from defendants’ unlawful acts. State v. Cummings, 46 N.C. App. 680, 265 S.E.2d 923, 1980 N.C. App. LEXIS 2915 , aff'd, 301 N.C. 374 , 271 S.E.2d 277, 1980 N.C. LEXIS 1172 (1980); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42, 1986 N.C. App. LEXIS 2171 (1986).

The act of the accused need not be the immediate cause of death; he is legally accountable if the direct cause is the natural result of the criminal act. State v. Cummings, 301 N.C. 374 , 271 S.E.2d 277, 1980 N.C. LEXIS 1172 (1980).

Nor the sole proximate cause of the death, nor the last act in sequence of time. There may be more than one proximate cause of the death in question. It is enough if defendants’ unlawful acts join and concur with other causes in producing the result. State v. Cummings, 46 N.C. App. 680, 265 S.E.2d 923, 1980 N.C. App. LEXIS 2915 , aff'd, 301 N.C. 374 , 271 S.E.2d 277, 1980 N.C. LEXIS 1172 (1980); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42, 1986 N.C. App. LEXIS 2171 (1986).

Use of Pistol as Aggravating Factor. —

Where defendant was convicted of involuntary manslaughter based on evidence that he had shot and killed victim outside nightclub, defendant’s possession and use of a pistol could not be used as a factor in aggravation of the crime of voluntary manslaughter. However, the trial court could properly have found as a nonstatutory aggravating factor that defendant returned to the nightclub carrying a loaded pistol after an earlier encounter with the owner. State v. McKinney, 88 N.C. App. 659, 364 S.E.2d 743, 1988 N.C. App. LEXIS 215 (1988).

Use As Prior Conviction For Violent Habitual Felon Charge. —

There was substantial evidence that defendant had two prior felony convictions because, even though one of the judgments listed the convicted person’s race as black while defendant was white, G.S. 14-7.10 created the requirements for a statutory prima facie case, and since the prosecution met that standard, any discrepancies in the details contained in the judgments were for the jury to consider in weighing the evidence; the trial court also declined to dismiss the charge on grounds that one of the convictions did not qualify for use as an underlying felony, as voluntary manslaughter was a superseded offense pursuant to G.S. 14-7.7(b)(2) where the offense had been upgraded by the General Assembly to a class D felony. State v. Wolfe, 157 N.C. App. 22, 577 S.E.2d 655, 2003 N.C. App. LEXIS 373 (2003).

Reversal for Improper Argument. —

Conviction was reversed and the defendant was granted a new trial where the prosecutor improperly argued that “there’s a lot of public sentiment at this point against driving and drinking, causing accidents on the highway.” The argument went outside the record and appealed to the jury to convict the defendant because impaired drivers had caused other accidents; such statements could only be construed as telling the jury that the citizens of the community sought and demanded conviction and punishment of the defendant. State v. Scott, 314 N.C. 309 , 333 S.E.2d 296, 1985 N.C. LEXIS 1789 (1985).

Trial court erred in failing to submit aggravating factors to the jury before imposing an aggravated sentences on defendant for his two manslaughter convictions; as defendant was entitled to a jury trial on the charge, any aggravating factor had to be submitted to the jury before an aggravated sentence could be imposed. State v. Speight, 359 N.C. 602 , 614 S.E.2d 262, 2005 N.C. LEXIS 645 (2005), vacated, 548 U.S. 923, 126 S. Ct. 2977, 165 L. Ed. 2d 983, 2006 U.S. LEXIS 5189 (2006) (as to Blakely error being subject to harmless review).

II.Manslaughter
A.In General

Definitions. —

Manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without the intention to kill or to inflict serious bodily injury. State v. Kea, 256 N.C. 492 , 124 S.E.2d 174, 1962 N.C. LEXIS 475 (1962); State v. Benge, 272 N.C. 261 , 158 S.E.2d 70, 1967 N.C. LEXIS 1014 (1967); State v. Roseboro, 276 N.C. 185 , 171 S.E.2d 886, 1970 N.C. LEXIS 664 (1970), rev'd, 403 U.S. 948, 91 S. Ct. 2289, 29 L. Ed. 2d 860 (1971); State v. Richardson, 14 N.C. App. 86, 187 S.E.2d 435, 1972 N.C. App. LEXIS 2042 (1972), cert. denied, 284 N.C. 258 , 200 S.E.2d 658, 1973 N.C. LEXIS 857 (1973); State v. Bunn, 283 N.C. 444 , 196 S.E.2d 777, 1973 N.C. LEXIS 992 (1973); State v. Spencer, 27 N.C. App. 301, 219 S.E.2d 231, 1975 N.C. App. LEXIS 1829 (1975); State v. Cousins, 289 N.C. 540 , 223 S.E.2d 338, 1976 N.C. LEXIS 1330 (1976); State v. Jones, 291 N.C. 681 , 231 S.E.2d 252, 1977 N.C. LEXIS 1233 (1977); State v. Stewart, 292 N.C. 219 , 232 S.E.2d 443, 1977 N.C. LEXIS 1055 (1977); State v. Alston, 295 N.C. 629 , 247 S.E.2d 898, 1978 N.C. LEXIS 1076 (1978); State v. Marshall, 304 N.C. 167 , 282 S.E.2d 422, 1981 N.C. LEXIS 1327 (1981); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774, 1982 N.C. App. LEXIS 2862 (1982).

Intentional or Unintentional Killing. —

Voluntary manslaughter is the intentional killing of a person without malice, while involuntary manslaughter is the unintentional killing of a person without malice. Stout v. Grain Dealers Mut. Ins. Co., 307 F.2d 521, 1962 U.S. App. LEXIS 4297 (4th Cir. 1962); State v. Fox, 18 N.C. App. 523, 197 S.E.2d 265, 1973 N.C. App. LEXIS 1927 , cert. denied, 283 N.C. 755 , 198 S.E.2d 725, 1973 N.C. LEXIS 1083 (1973).

Adequate Provocation. —

A killing is without malice if the defendant acts in the heat of passion upon adequate provocation so that the defendant’s state of mind overcomes his ability to reason and to control his actions. The act of provocation must be such, however, that it would naturally and reasonably arouse the passions of an ordinary man beyond his power of control. State v. Mathis, 105 N.C. App. 402, 413 S.E.2d 301, 1992 N.C. App. LEXIS 230 (1992).

Killing Must Be Unintentional. —

Where defendant was convicted of involuntary manslaughter as a lesser included offense of second degree murder, and the evidence showed without contradiction that defendant intentionally killed at close range, the judgment would be vacated and defendant discharged, since conviction of involuntary manslaughter required that the killing not be intentional. State v. Benge, 87 N.C. App. 282, 360 S.E.2d 701, 1987 N.C. App. LEXIS 3115 (1987).

Manslaughter is a lesser included offense of murder in the second degree. State v. Holcomb, 295 N.C. 608 , 247 S.E.2d 888, 1978 N.C. LEXIS 1073 (1978); State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

Distinguished by Presence or Absence of Malice. —

The difference between second-degree murder and manslaughter is that malice, express or implied, is present in the former and not in the latter. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

It is the absence of malice, premeditation, deliberation, intent to kill, and intent to inflict serious bodily injury that separates involuntary manslaughter from murder and voluntary manslaughter. State v. Greene, 314 N.C. 649 , 336 S.E.2d 87, 1985 N.C. LEXIS 2094 (1985).

Proximate cause is an element of second-degree murder and manslaughter. State v. Sherrill, 28 N.C. App. 311, 220 S.E.2d 822, 1976 N.C. App. LEXIS 2672 (1976).

But specific intent to kill is not. —

The specific intent to kill is not an essential element of either second degree murder or involuntary manslaughter; however, neither crime exists in the absence of some intentional act in the chain of causation leading to death. State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985).

Involuntary homicide is also “manslaughter.” United Servs. Auto. Ass'n v. Wharton, 237 F. Supp. 255, 1965 U.S. Dist. LEXIS 6458 (W.D.N.C. 1965).

When a death is caused by one who was driving under the influence of alcohol, only two elements must exist for the successful prosecution of manslaughter: A willful violation of G.S. 20-138 (now G.S. 20-138.1 ) and the causal link between that violation and the death. If these elements are present, the State need not demonstrate that defendant violated any other rule of the road, nor that his conduct was in any other way wrongful. State v. McGill, 314 N.C. 633 , 336 S.E.2d 90, 1985 N.C. LEXIS 2093 (1985).

B.Voluntary

Definitions. —

Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation. State v. Rummage, 280 N.C. 51 , 185 S.E.2d 221, 1971 N.C. LEXIS 1090 (1971); State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434, 1972 N.C. App. LEXIS 1925 (1972); State v. Cannady, 16 N.C. App. 569, 192 S.E.2d 677, 1972 N.C. App. LEXIS 1762 (1972); State v. Fox, 18 N.C. App. 523, 197 S.E.2d 265, 1973 N.C. App. LEXIS 1927 , cert. denied, 283 N.C. 755 , 198 S.E.2d 725, 1973 N.C. LEXIS 1083 (1973); State v. Christopher, 29 N.C. App. 231, 223 S.E.2d 835, 1976 N.C. App. LEXIS 2450 (1976); State v. Foust, 32 N.C. App. 301, 232 S.E.2d 276, 1977 N.C. App. LEXIS 1919 (1977); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Holcomb, 295 N.C. 608 , 247 S.E.2d 888, 1978 N.C. LEXIS 1073 (1978); Gardner v. Forister, 468 F. Supp. 761, 1979 U.S. Dist. LEXIS 13170 (W.D.N.C. 1979); State v. Brown, 300 N.C. 731 , 268 S.E.2d 201, 1980 N.C. LEXIS 1135 (1980); State v. King, 49 N.C. App. 499, 272 S.E.2d 26, 1980 N.C. App. LEXIS 3423 (1980); State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Rinck, 303 N.C. 551 , 280 S.E.2d 912, 1981 N.C. LEXIS 1197 (1981); State v. Robbins, 309 N.C. 771 , 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702, 1985 N.C. App. LEXIS 4259 (1985); State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42, 1986 N.C. App. LEXIS 2171 (1986).

Generally voluntary manslaughter occurs when one kills intentionally but does so in the heat of passion suddenly aroused by adequate provocation or in the exercise of self-defense where excessive force under the circumstances is employed or where the defendant is the aggressor bringing on the affray. Although a killing under these circumstances is both unlawful and intentional, the circumstances themselves are said to displace malice and to reduce the offense from murder to manslaughter. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Ferrell, 300 N.C. 157 , 265 S.E.2d 210, 1980 N.C. LEXIS 1043 (1980); State v. Lindsay, 45 N.C. App. 514, 263 S.E.2d 364, 1980 N.C. App. LEXIS 3013 (1980).

One who kills a human being under the influence of sudden passion, produced by adequate provocation sufficient to negate malice, is guilty of manslaughter. State v. Robbins, 309 N.C. 771 , 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702, 1985 N.C. App. LEXIS 4259 (1985).

Malice is not a necessary element of voluntary manslaughter. Reeves v. Reed, 452 F. Supp. 783, 1978 U.S. Dist. LEXIS 17525 (W.D.N.C. 1978), rev'd, 596 F.2d 628, 1979 U.S. App. LEXIS 15305 (4th Cir. 1979).

Theory of voluntary manslaughter is supported where the victim used words and threatening behavior toward defendant, thereby causing him to feel anger, rage, or furious resentment which rendered his mind incapable of cool reflection. State v. Mathis, 105 N.C. App. 402, 413 S.E.2d 301, 1992 N.C. App. LEXIS 230 (1992).

Adequate Provocation to Negate Malice. —

The crime of second degree murder may be reduced to voluntary manslaughter upon a showing that defendant killed his victim in the heat of passion caused by provocation adequate to negate the element of malice. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

Words alone are never sufficient provocation to mitigate second-degree murder to voluntary manslaughter. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

In order for an accused to reduce the crime of second-degree murder to voluntary manslaughter, he must rely on evidence presented by the State or assume a burden to go forward with or produce evidence of heat of passion on sudden provocation. State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338, 1987 N.C. App. LEXIS 2571 (1987); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

Issue of Proximate Cause Properly Submitted to Jury. —

In prosecution for voluntary manslaughter, issue of proximate cause of victim’s death was properly submitted to the jury, where pathologist testified that victim died as a result of complications from the bullet wound to his chest and abdomen inflicted by defendant, even though victim’s death was precipitated by his decision against medical advice to undergo colostomy reversal surgery. State v. Gilreath, 118 N.C. App. 200, 454 S.E.2d 871, 1995 N.C. App. LEXIS 161 (1995).

Lesser Included Offense of Second Degree Murder Premised on Acting in Concert. —

Voluntary manslaughter can be a lesser included offense of second degree murder when premised on the doctrine of acting in concert. State v. McCoy, 122 N.C. App. 482, 470 S.E.2d 542, 1996 N.C. App. LEXIS 441 (1996).

Defendant’s convictions on both assault with a deadly weapon inflicting serious injury and attempted voluntary manslaughter for shooting a person were mutually exclusive offenses and the trial court’s consolidation of the offenses into a single judgment was error that mandated a new trial; for the jury to convict on both offenses, it had to find either that defendant did not have the intent to kill, which would support the assault offense, or that he had the intent to kill, but that such intent was negated by sudden provocation, which would support the attempted manslaughter charge. State v. Hames, 170 N.C. App. 312, 612 S.E.2d 408, 2005 N.C. App. LEXIS 1007 (2005).

Extraordinary Mitigating Circumstances Not Found. —

When defendant pled guilty to voluntary manslaughter after acceding to defendant’s wife’s request to help the wife end the wife’s life, a trial court accurately understood the law by declining to find extraordinary mitigating circumstances sparing defendant from an otherwise mandatory active sentence, as the court correctly described an extraordinary factor as one “greater than in a normal case” and correctly stated the quality of factors, not the quantity, was the court’s prime consideration, accurately conveying the law that the victim’s consent and participation or the support of defendant’s family were only extraordinary mitigating factors if their quality and nature were substantially greater than the normal case. State v. Leonard, 258 N.C. App. 129, 811 S.E.2d 658, 2018 N.C. App. LEXIS 193 (2018).

C.Involuntary

Definitions. —

Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately resulting from the commission of an unlawful act not amounting to a felony, or resulting from some act done in an unlawful or culpably negligent manner, when fatal consequences were not improbable under all the facts existent at the time, or resulting from the culpably negligent omission to perform a legal duty. State v. Lawson, 6 N.C. App. 1, 169 S.E.2d 265, 1969 N.C. App. LEXIS 1129 (1969); State v. Stimpson, 279 N.C. 716 , 185 S.E.2d 168, 1971 N.C. LEXIS 912 (1971); State v. Rummage, 280 N.C. 51 , 185 S.E.2d 221, 1971 N.C. LEXIS 1090 (1971); State v. Holshouser, 15 N.C. App. 469, 190 S.E.2d 420, 1972 N.C. App. LEXIS 1943 (1972); State v. Robinson, 15 N.C. App. 542, 190 S.E.2d 427, 1972 N.C. App. LEXIS 1962 (1972); State v. Ward, 286 N.C. 304 , 210 S.E.2d 407, 1974 N.C. LEXIS 1229 (1974), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207, 1976 U.S. LEXIS 4200 (1976); State v. Redfern, 291 N.C. 319 , 230 S.E.2d 152, 1976 N.C. LEXIS 977 (1976); State v. Everhart, 291 N.C. 700 , 231 S.E.2d 604, 1977 N.C. LEXIS 1236 (1977); State v. Waite, 32 N.C. App. 279, 232 S.E.2d 278, 1977 N.C. App. LEXIS 1913 (1977); State v. Cates, 293 N.C. 462 , 238 S.E.2d 465, 1977 N.C. LEXIS 972 (1977); State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Lindsay, 45 N.C. App. 514, 263 S.E.2d 364, 1980 N.C. App. LEXIS 3013 (1980); State v. Oxendine, 300 N.C. 720 , 268 S.E.2d 212, 1980 N.C. LEXIS 1138 (1980); State v. McAdams, 51 N.C. App. 140, 275 S.E.2d 500, 1981 N.C. App. LEXIS 2180 (1981); State v. Martin, 52 N.C. App. 373, 278 S.E.2d 305, 1981 N.C. App. LEXIS 2418 , cert. denied, 303 N.C. 549 , 281 S.E.2d 399, 1981 N.C. LEXIS 1404 (1981); State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Flaherty, 55 N.C. App. 14, 284 S.E.2d 565, 1981 N.C. App. LEXIS 2971 (1981); State v. Atkins, 58 N.C. App. 146, 292 S.E.2d 744, 1982 N.C. App. LEXIS 2732 (1982); State v. Matthis, 59 N.C. App. 233, 296 S.E.2d 20, 1982 N.C. App. LEXIS 3071 (1982); State v. Robbins, 309 N.C. 771 , 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985); State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985); State v. Greene, 314 N.C. 649 , 336 S.E.2d 87, 1985 N.C. LEXIS 2094 (1985); State v. McGill, 314 N.C. 633 , 336 S.E.2d 90, 1985 N.C. LEXIS 2093 (1985); State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664, 1986 N.C. App. LEXIS 2060 (1986); State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986); State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, 1987 N.C. App. LEXIS 3129 (1987).

Involuntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury. State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434, 1972 N.C. App. LEXIS 1925 (1972); State v. Cannady, 16 N.C. App. 569, 192 S.E.2d 677, 1972 N.C. App. LEXIS 1762 (1972); State v. Stewart, 292 N.C. 219 , 232 S.E.2d 443, 1977 N.C. LEXIS 1055 (1977); State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Haith, 48 N.C. App. 319, 269 S.E.2d 205, 1980 N.C. App. LEXIS 3239 (1980); State v. Norris, 303 N.C. 526 , 279 S.E.2d 570, 1981 N.C. LEXIS 1188 (1981); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774, 1982 N.C. App. LEXIS 2862 (1982); State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, 1987 N.C. App. LEXIS 3129 (1987).

Involuntary manslaughter is the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission. State v. Wingard, 317 N.C. 590 , 346 S.E.2d 638, 1986 N.C. LEXIS 2411 (1986); State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125, 1987 N.C. App. LEXIS 3074 (1987).

Involuntary Manslaughter of Children By Starvation or Malnutrition. —

In cases of starvation or malnutrition of children by their parents or guardians, three elements must exist: (1) the defendant must have a duty to adequately feed and nourish the child; (2) the defendant must refuse to feed and nourish the child, either willfully or by his/her culpable negligence; and (3) the defendant’s actions, or inactions, must proximately result in the child’s death. State v. Fritsch, 132 N.C. App. 262, 511 S.E.2d 325, 1999 N.C. App. LEXIS 120 (1999), aff'd in part and rev'd in part, 351 N.C. 373 , 526 S.E.2d 451, 2000 N.C. LEXIS 241 (2000).

Homicide Must Have Been Unintentional and Without Malice. —

To constitute involuntary manslaughter, the homicide must have been without intention to kill or inflict serious bodily injury, and without either express or implied malice. State v. Foust, 258 N.C. 453 , 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963).

Unintentional Killing by Intentional Act. —

While involuntary manslaughter imports an unintentional killing, i.e., the absence of a specific intent to kill, it is accomplished by means of some intentional act. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

Although involuntary manslaughter does not concern intent to kill, it does connote an intentional act, like the defendant voluntarily drawing his gun. State v. Boyd, 61 N.C. App. 238, 300 S.E.2d 578, 1983 N.C. App. LEXIS 2628 , cert. denied, 308 N.C. 545 , 304 S.E.2d 238, 1983 N.C. LEXIS 1366 (1983).

A death that occurs as a result of constituting involuntary manslaughter, driving while impaired, although perhaps unintentional, is not an accident, because this result is reasonably foreseeable. Baker v. Provident Life & Accident Ins. Co., 171 F.3d 939, 1999 U.S. App. LEXIS 2600 (4th Cir. 1999).

An intentional violation of some statute designed for the protection of people which proximately though unintentionally causes death can support a conviction of involuntary manslaughter. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

Violation of “Safety” Statute or Ordinance. —

The intentional, willful, or wanton violation of any “safety” statute or ordinance, which proximately results in death, can support a conviction of involuntary manslaughter. State v. Powell, 109 N.C. App. 1, 426 S.E.2d 91, 1993 N.C. App. LEXIS 184 (1993), aff'd, 336 N.C. 762 , 446 S.E.2d 26, 1994 N.C. LEXIS 413 (1994).

Same — Illustrative Case. —

Where evidence was presented, including physical evidence, that defendant’s dogs, running loose, attacked and killed the victim, and that the dogs weighing one hundred pounds and eighty pounds, respectively, were trained by defendant to be aggressive and to scare people, there was substantial evidence that defendant intentionally violated a safety ordinance, and that such violation was the proximate cause of the victim’s death; therefore, the trial court properly submitted the charge of involuntary manslaughter to the jury. State v. Powell, 109 N.C. App. 1, 426 S.E.2d 91, 1993 N.C. App. LEXIS 184 (1993), aff'd, 336 N.C. 762 , 446 S.E.2d 26, 1994 N.C. LEXIS 413 (1994).

Instruction on involuntary manslaughter is not required, regardless of whether the actual killing was intentional or unintentional, when the intentional act leading to death was naturally dangerous to human life. State v. Lawrance, 94 N.C. App. 380, 380 S.E.2d 156, 1989 N.C. App. LEXIS 457 (1989).

Evidence Held Not to Support Involuntary Manslaughter Instruction. —

Where defendant was convicted of suffocating his seven-month-old son, trial court correctly determined that the evidence presented at trial did not support an involuntary manslaughter instruction; although defendant might not have intended to actually kill his son, the evidence certainly tended to show that he intended to press the child’s face into the mattress. State v. Lawrance, 94 N.C. App. 380, 380 S.E.2d 156, 1989 N.C. App. LEXIS 457 (1989).

Defendant was not entitled to a jury instruction on involuntary manslaughter where the State’s evidence showed that the defendant had knowledge of and experience with farm pesticides; that he went to a farm to obtain the deadly pesticide used in the murder; that he concocted a story as to why he needed the poison; that he showed the poison to two people; that he put it in his children’s Kool-Aid; that he failed to say anything at the hospital as to the real reason his children were sick; and where no evidence except the defendant’s denial negated the State’s evidence. State v. Smith, 351 N.C. 251 , 524 S.E.2d 28, 2000 N.C. LEXIS 3 , cert. denied, 531 U.S. 862, 121 S. Ct. 151, 148 L. Ed. 2d 100, 2000 U.S. LEXIS 5702 (2000).

A mere assault which proximately results in death, but which does not indicate a total disregard for human life and is committed with no intent to kill or to inflict serious bodily injury, will support, at most, a verdict of involuntary manslaughter. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

Punishment for involuntary manslaughter may be by fine or imprisonment or both in the discretion of the court. The imprisonment, however, may not exceed ten years. State v. Swinney, 271 N.C. 130 , 155 S.E.2d 545, 1967 N.C. LEXIS 1165 (1967).

Defendant’s contention that involuntary manslaughter was a misdemeanor for which punishment could not exceed two years was not sustained in State v. Swinney, 271 N.C. 130 , 155 S.E.2d 545, 1967 N.C. LEXIS 1165 (1967); State v. Efird, 271 N.C. 730 , 157 S.E.2d 538, 1967 N.C. LEXIS 1277 (1967).

Involuntary manslaughter is a lesser included offense of murder and of voluntary manslaughter. State v. Greene, 314 N.C. 649 , 336 S.E.2d 87, 1985 N.C. LEXIS 2094 (1985); State v. Mecado, 314 N.C. 659 , 336 S.E.2d 87, 1985 N.C. LEXIS 2086 (1985).

Conviction for Involuntary Manslaughter Upheld. —

Defendant’s conviction of involuntary manslaughter under G.S. 14-18 , was affirmed; the trial court properly refused to admit a synopsis of defendant’s statement given to police officer, as the synopsis did not did not fall within the recorded recollection hearsay exception under G.S. 8C-1 , N.C. R. Evid. 803(5), because there was no showing that defendant had an insufficient recollection of events, and the trial court properly denied defendant’s motion to dismiss pursuant to G.S. 15A-954 , because the State adequately proved the elements of the crime of voluntary manslaughter. State v. Alston, 161 N.C. App. 367, 588 S.E.2d 530, 2003 N.C. App. LEXIS 2185 (2003), aff'd, 359 N.C. 61 , 602 S.E.2d 674, 2004 N.C. LEXIS 1123 (2004).

Blakely Errors Were Harmless. —

Blakely errors committed by the trial court in sentencing defendant for involuntary manslaughter were harmless as defendant knowingly created a great risk of death to more than one person by means of a weapon or device that would normally be hazardous to more than one person since: (1) defendant operated defendant’s vehicle in a reckless manner by speeding, driving while intoxicated and with THC and morphine in defendant’s blood, and weaving in and out of traffic; (2) a reasonable person would have known that a great risk of death had been created; (3) defendant’s blood alcohol concentration was 0.10 two hours after the collision; (4) defendant acknowledged that the two involuntary manslaughter convictions showed that in the course of conduct as to each offense defendant killed another; and (5) since there were two involuntary manslaughter convictions, the evidence used to prove an element of one offense could be used to support an aggravating factor of a separate joined offense. State v. Speight, 186 N.C. App. 93, 650 S.E.2d 452, 2007 N.C. App. LEXIS 1983 (2007).

For discussion of involuntary manslaughter, see State v. Crisp, 64 N.C. App. 493, 307 S.E.2d 776, 1983 N.C. App. LEXIS 3321 (1983); State v. Allen, 77 N.C. App. 142, 334 S.E.2d 410, 1985 N.C. App. LEXIS 4056 (1985).

III.Heat of Passion

Heat of Passion Defined. —

See State v. Pope, 24 N.C. App. 217, 210 S.E.2d 267, 1974 N.C. App. LEXIS 1965 (1974), cert. denied, 286 N.C. 419 , 211 S.E.2d 799, 1975 N.C. LEXIS 1230 (1975); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

Heat of passion is defined as rage, anger, hatred or furious resentment rendering the mind incapable of cool reflection. State v. Spicer, 50 N.C. App. 214, 273 S.E.2d 521, 1981 N.C. App. LEXIS 2110 (1981).

A killing is without malice if the one who kills acted while under the influence of passion or in the heat of blood produced by adequate provocation. State v. Spicer, 50 N.C. App. 214, 273 S.E.2d 521, 1981 N.C. App. LEXIS 2110 (1981).

When one spouse kills the other in a heat of passion engendered by the discovery of the deceased and a paramour in the very act of intercourse, or under circumstances clearly indicating that the act had just been completed, or was “severely proximate,” and the killing follows immediately, it is manslaughter. State v. Ward, 286 N.C. 304 , 210 S.E.2d 407, 1974 N.C. LEXIS 1229 (1974), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207, 1976 U.S. LEXIS 4200 (1976); State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

A mere suspicion, belief or knowledge of past adultery will not change the character of a homicide from murder to manslaughter. State v. Long, 87 N.C. App. 137, 360 S.E.2d 121, 1987 N.C. App. LEXIS 3076 (1987).

IV.Reckless Use of Firearms

Deaths Caused by Wanton or Reckless Use of Firearms. —

With few exceptions, it may be said that every unintentional killing of a human being proximately caused by a wanton or reckless use of firearms, in the absence of intent to discharge the weapon or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty is involuntary manslaughter. State v. Foust, 258 N.C. 453 , 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963); State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434, 1972 N.C. App. LEXIS 1925 (1972); State v. Adcock, 24 N.C. App. 102, 210 S.E.2d 127, 1974 N.C. App. LEXIS 1939 (1974), cert. denied, 286 N.C. 416 , 211 S.E.2d 796, 1975 N.C. LEXIS 1214 (1975); State v. Redfern, 291 N.C. 319 , 230 S.E.2d 152, 1976 N.C. LEXIS 977 (1976); State v. Best, 59 N.C. App. 96, 295 S.E.2d 774, 1982 N.C. App. LEXIS 2862 (1982); State v. Robbins, 309 N.C. 771 , 309 S.E.2d 188, 1983 N.C. LEXIS 1456 (1983).

One who handles a firearm in a reckless or wanton manner and thereby unintentionally causes the death of another is guilty of involuntary manslaughter. State v. Moore, 275 N.C. 198 , 166 S.E.2d 652, 1969 N.C. LEXIS 375 (1969); State v. Putnam, 24 N.C. App. 570, 211 S.E.2d 493, 1975 N.C. App. LEXIS 2435 (1975); State v. Boyd, 61 N.C. App. 238, 300 S.E.2d 578, 1983 N.C. App. LEXIS 2628 , cert. denied, 308 N.C. 545 , 304 S.E.2d 238, 1983 N.C. LEXIS 1366 (1983).

Ordinarily an unintentional homicide resulting from the reckless use of firearms “in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under the circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter.” When the circumstances do show a heart devoid of a sense of social duty, the homicide cannot be involuntary manslaughter. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Oxendine, 300 N.C. 720 , 268 S.E.2d 212, 1980 N.C. LEXIS 1138 (1980).

An unintentional killing with a firearm resulting from culpable negligence is ordinarily involuntary manslaughter, unless the defendant acts with a heart devoid of a sense of social duty, or with a depravity of mind and disregard for human life. State v. Lytton, 319 N.C. 422 , 355 S.E.2d 485, 1987 N.C. LEXIS 2027 (1987).

At common law and under this section one who points a loaded gun at another, though without intention of discharging it, if the gun goes off accidentally and kills, commits manslaughter. State v. Stimpson, 279 N.C. 716 , 185 S.E.2d 168, 1971 N.C. LEXIS 912 (1971).

Facts Supporting Charge Concerning Negligent Handling of Gun. —

The showing that defendant was seated at a table, deceased was standing near him, defendant pulled the gun from his pocket after which it fired with the bullet striking deceased in the forehead, would certainly be some evidence that defendant intentionally pointed the gun at the deceased even though it may have fired accidentally. There were sufficient facts presented to support the charge concerning whether defendant handled the gun in a criminally negligent manner. State v. Jones, 15 N.C. App. 537, 190 S.E.2d 278, 1972 N.C. App. LEXIS 1960 (1972).

V.Culpable Negligence

Definitions. —

Culpable negligence in the law of involuntary manslaughter is something more than actionable negligence in the law of torts, and is such recklessness or carelessness, proximately resulting in injury or death, as is incompatible with a proper regard for the safety or rights of others. State v. Gainey, 29 N.C. App. 653, 225 S.E.2d 843, 1976 N.C. App. LEXIS 2621 (1976), rev'd, 292 N.C. 627 , 234 S.E.2d 610, 1977 N.C. LEXIS 1145 (1977).

Culpable negligence in the criminal law requires more than the negligence necessary to sustain a recovery in tort. Rather, for negligence to constitute the basis for the imposition of criminal sanctions, it must be such reckless or careless behavior that the act imports a thoughtless disregard of the consequences of the act or the act shows a heedless indifference to the rights and safety of others. There must be negligence of a gross and flagrant character, evincing reckless disregard of human life. State v. Newcomb, 26 N.C. App. 595, 216 S.E.2d 730, 1975 N.C. App. LEXIS 2121 , cert. denied, 288 N.C. 249 , 217 S.E.2d 680, 1975 N.C. LEXIS 953 (1975); State v. Everhart, 291 N.C. 700 , 231 S.E.2d 604, 1977 N.C. LEXIS 1236 (1977); State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Flaherty, 55 N.C. App. 14, 284 S.E.2d 565, 1981 N.C. App. LEXIS 2971 (1981).

Violation of Safety Statute or Ordinance. —

In a prosecution for involuntary manslaughter, the violation of a safety statute regulating the use of highways does not constitute culpable negligence unless such violation is intentional, willful or wanton, or unless the violation, though unintentional, is accompanied by recklessness or is under circumstances from which death or injury to others might have been reasonably anticipated. State v. Gainey, 29 N.C. App. 653, 225 S.E.2d 843, 1976 N.C. App. LEXIS 2621 (1976), rev'd, 292 N.C. 627 , 234 S.E.2d 610, 1977 N.C. LEXIS 1145 (1977).

An intentional, willful or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence. State v. Stewardson, 32 N.C. App. 344, 232 S.E.2d 308, 1977 N.C. App. LEXIS 1926 , cert. denied, 292 N.C. 643 , 235 S.E.2d 64, 1977 N.C. LEXIS 1166 (1977); State v. Jones, 32 N.C. App. 408, 232 S.E.2d 475, 1977 N.C. App. LEXIS 1962 (1977); State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Atkins, 58 N.C. App. 146, 292 S.E.2d 744, 1982 N.C. App. LEXIS 2732 (1982).

Where defendant’s dog attacked and killed jogger, the State presented substantial evidence of each element of the offense of involuntary manslaughter based on culpable negligence where a city safety ordinance was involved. State v. Powell, 336 N.C. 762 , 446 S.E.2d 26, 1994 N.C. LEXIS 413 (1994).

Deaths Resulting from Culpable Negligence. —

Culpable negligence, from which death proximately ensues, makes the actor guilty of manslaughter, and under some circumstances, guilty of murder. State v. Colson, 262 N.C. 506 , 138 S.E.2d 121, 1964 N.C. LEXIS 680 (1964).

A death which is proximately caused by culpable negligence is involuntary manslaughter. State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410, 1985 N.C. App. LEXIS 4365 (1985).

Culpable Negligence Not Sufficient to Support Murder Charge. —

Since the distinction between manslaughter and murder in the second degree is malice, culpable negligence will not support a murder charge unless there are sufficient facts to support a finding of malice. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

Both involuntary manslaughter and second-degree murder can involve an act of “culpable negligence” that proximately causes death. Culpable negligence, standing alone, will support at most involuntary manslaughter. When, however, an act of culpable negligence also imports danger to another and is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life, it will support a conviction for second-degree murder. State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

Intentional Shooting Can Be Culpable Negligence. —

It is not true that in order to entitle defendant to an instruction on involuntary manslaughter, the discharge of a weapon must necessarily be unintentional. An intentional shooting at an object can amount to culpable negligence, which is one of the states of mind required for an instruction on involuntary manslaughter. State v. Brewer, 325 N.C. 550 , 386 S.E.2d 569, 1989 N.C. LEXIS 604 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541, 1990 U.S. LEXIS 2638 (1990).

Involuntary Manslaughter While Operating Motor Vehicle. —

A defendant may be convicted of involuntary manslaughter in connection with the operation of a motor vehicle upon proof by the State that defendant (1) violated a safety statute, (2) in a culpably negligent manner, and (3) that such violation was a proximate cause of the victim’s death. State v. Bailey, 76 N.C. App. 610, 334 S.E.2d 266, 1985 N.C. App. LEXIS 3925 (1985).

Trial court did not err in denying defendant’s motion to dismiss the charges because, although defendant’s actions while driving were not impaired by alcohol, they were still sufficient to establish the culpable negligence needed to support both involuntary manslaughter and assault with a deadly weapon inflicting serious injury. A witness noticed inappropriate driving by both defendant and the decedent prior to their vehicles approaching a sharp curve, as they approached the curve, defendant attempted to pass the decedent and the witness despite having no visibility around the curve, and defendant’s attempt to pass the vehicles at that particular time was in blatant disregard of safety concerns associated with that portion of the highway and a violation of G.S. 20-150 . State v. Wade, 161 N.C. App. 686, 589 S.E.2d 379, 2003 N.C. App. LEXIS 2268 (2003).

Death by Vehicle as Lesser Included Offense. —

Death by vehicle under G.S. 20-141.4(a), repealed and revised as G.S. 20-141.4(a2), is a lesser included offense of the common law felony of involuntary manslaughter, made punishable by G.S. 14-18 . The distinction is that the lesser offense does not depend upon the presence of culpable or criminal negligence, it being enough to convict if death proximately results from the violation of a traffic statute or ordinance. State v. Lackey, 71 N.C. App. 581, 323 S.E.2d 32, 1984 N.C. App. LEXIS 3920 (1984).

Evidence tending to show that the deceased said, “Don’t shoot me,” standing alone, was not sufficient to raise an inference that the defendant intentionally pointed the weapon at her, or that he handled it in such a careless and reckless manner as to amount to culpable negligence. State v. Holshouser, 15 N.C. App. 469, 190 S.E.2d 420, 1972 N.C. App. LEXIS 1943 (1972).

Evidence that death was caused by defendant inadvertently stabbing victim in the chest while not attempting or intending to do so clearly met the requirement that the act be done in a culpable or criminally negligent way. State v. Daniels, 87 N.C. App. 287, 360 S.E.2d 470, 1987 N.C. App. LEXIS 3129 (1987).

VI.Self-Defense

For a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm. State v. Norman, 324 N.C. 253 , 378 S.E.2d 8, 1989 N.C. LEXIS 158 (1989).

Killing in Self-Defense May Be Voluntary Manslaughter. —

Under given circumstances a person may be justified in intentionally killing when he acts in self-defense, yet such person may be guilty of voluntary manslaughter when an intentional killing results from excessive use of force while he is acting in self-defense. State v. Rummage, 280 N.C. 51 , 185 S.E.2d 221, 1971 N.C. LEXIS 1090 (1971); State v. Locklear, 25 N.C. App. 74, 212 S.E.2d 404, 1975 N.C. App. LEXIS 2173 (1975); State v. Burden, 36 N.C. App. 332, 244 S.E.2d 204, 1978 N.C. App. LEXIS 2476 , cert. denied, 295 N.C. 468 , 246 S.E.2d 216, 1978 N.C. LEXIS 913 (1978).

A killing in the exercise of self-defense, but which fails to meet the standard of perfect self-defense, is voluntary manslaughter. State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702, 1985 N.C. App. LEXIS 4259 (1985).

Voluntary Manslaughter Based on Imperfect Self-Defense. —

A defendant is entitled to an instruction on voluntary manslaughter based on imperfect self-defense only if evidence is introduced from which the following may be found: (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. State v. Battle, 322 N.C. 69 , 366 S.E.2d 454, 1988 N.C. LEXIS 126 , cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

Reduction of Second-Degree Murder to Voluntary Manslaughter. —

Second degree murder may be reduced to voluntary manslaughter if a killing results from the use of excessive force in the exercise of self-defense. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

Excessive force in the exercise of self-defense is that force used by a defendant who honestly believes that he must use deadly force to repel an attack but whose belief is found by the jury to be unreasonable under the surrounding facts and circumstances. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

Right Not Absolute. —

The right to kill in defense of one’s self or a family member is not absolute. When one uses excessive force in the exercise of his right of self-defense, he loses the benefit of perfect self-defense and is guilty at least of voluntary manslaughter. State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702, 1985 N.C. App. LEXIS 4259 (1985).

Battered Spouse. —

For case declining to expand the law of self-defense so as to entitle a battered spouse who killed her intoxicated husband while he slept to jury instructions on either perfect or imperfect self-defense, see State v. Norman, 324 N.C. 253 , 378 S.E.2d 8, 1989 N.C. LEXIS 158 (1989).

Defense Unavailable for Involuntary Manslaughter. —

In a prosecution for second-degree murder in which all the evidence showed that the defendant intentionally shot deceased and thereby caused his death, and the defendant relied on the defense of self-defense which is unavailable for a charge of involuntary manslaughter, the trial court committed prejudicial error in submitting involuntary manslaughter to the jury, and where the jury found the defendant guilty of involuntary manslaughter and acquitted the defendant of all other degrees of homicide, the defendant was entitled to be discharged. State v. Cason, 51 N.C. App. 144, 275 S.E.2d 221, 1981 N.C. App. LEXIS 2188 (1981).

Neither permanency of residence nor a leasehold interest in the premises is required before a person is legally justified in standing her ground, rather than retreating, before using deadly force in self-defense. One must show only that she is a member of a household, however temporarily, and that she possesses an intent to reside in that particular place at the time of the attack. State v. Stevenson, 81 N.C. App. 409, 344 S.E.2d 334, 1986 N.C. App. LEXIS 2315 (1986).

Charge of Self-Defense Not Erroneous. —

See State v. Pearson, 24 N.C. App. 410, 210 S.E.2d 887, 1975 N.C. App. LEXIS 2394 , aff'd, 288 N.C. 34 , 215 S.E.2d 598, 1975 N.C. LEXIS 879 (1975).

Trial court’s charge that a person may not ordinarily claim self-defense when he has used deadly force to quell an assault, standing alone, unduly restricted defendant’s plea of self-defense. However, any error committed was completely removed by the subsequent instruction detailing what defendant had to show to excuse his act on the ground of self-defense. State v. Pearson, 24 N.C. App. 410, 210 S.E.2d 887, 1975 N.C. App. LEXIS 2394 , aff'd, 288 N.C. 34 , 215 S.E.2d 598, 1975 N.C. LEXIS 879 (1975).

Evidence that defendant believed it necessary to kill victim before victim killed him is not sufficient to justify an instruction as to voluntary manslaughter based on imperfect self-defense. State v. Battle, 322 N.C. 69 , 366 S.E.2d 454, 1988 N.C. LEXIS 126 , cert. denied, 487 U.S. 1220, 108 S. Ct. 2876, 101 L. Ed. 2d 911, 1988 U.S. LEXIS 2963 (1988).

Evidence of Previous Assaults Properly Excluded. —

Exclusion of evidence of previous assaults by the deceased on the defendant was proper, where there was no evidence that the defendant acted in self-defense. State v. Matthis, 59 N.C. App. 233, 296 S.E.2d 20, 1982 N.C. App. LEXIS 3071 (1982).

Punishment Following Plea of Nolo Contendere. —

Notwithstanding evidence that defendant shot in self-defense, a plea of nolo contendere permitted the court to impose a sentence of not more than ten years for involuntary manslaughter. State v. Swinney, 271 N.C. 130 , 155 S.E.2d 545, 1967 N.C. LEXIS 1165 (1967).

VII.Instructions to Jury

Charge as to Lesser Degrees of Same Crime. —

While under the provisions of G.S. 15-170 the trial judge was required to charge upon evidence on the lesser degrees of the same crime for which the prisoner was being tried, it was not required that he charge upon the principles of an assault with a deadly weapon, where the prisoner was charged with murder, and the killing of the deceased by him had been admitted, and the judge had correctly charged upon the crime of manslaughter, the lowest degree of an unlawful killing of human being. State v. Lutterloh, 188 N.C. 412 , 124 S.E. 752, 1924 N.C. LEXIS 85 (1924).

The law requires a showing of strong provocation before it will grant a defendant who is charged with second-degree murder a jury instruction on the lesser included offense of voluntary manslaughter. Evidence that the deceased threw a cigarette butt at defendant does not rise to the level of serious provocation required. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

When Supported by the Evidence. —

A proper charge on the issue of voluntary manslaughter is required when the evidence would support a finding either (a) that the defendant acted properly in self-defense except for the use of excessive force in repelling the assailant, or (b) that the defendant killed while in the heat of passion brought on by adequate provocation, amounting to an assault or threatened assault, not originating with the defendant. Gardner v. Forister, 468 F. Supp. 761, 1979 U.S. Dist. LEXIS 13170 (W.D.N.C. 1979).

Because involuntary manslaughter is a lesser included offense of the indicted crime of murder, an instruction on its elements is proper only if there is evidence to support it. State v. Boyd, 61 N.C. App. 238, 300 S.E.2d 578, 1983 N.C. App. LEXIS 2628 , cert. denied, 308 N.C. 545 , 304 S.E.2d 238, 1983 N.C. LEXIS 1366 (1983).

The submission to the jury of a possible verdict of involuntary manslaughter when defendant has been charged with murder is necessary only when there is evidence from which jury could find that such an included crime was committed. State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664, 1986 N.C. App. LEXIS 2060 (1986).

In a murder trial, the sole factor determining the judge’s obligation to give an instruction on voluntary manslaughter is whether there is any evidence in the record which might support a conviction for the less grievous offense. State v. Sullivan, 86 N.C. App. 316, 357 S.E.2d 414, 1987 N.C. App. LEXIS 2705 (1987).

Evidence Sufficient to Go to Jury. —

Where there was no real evidence of malice, but the jury could reasonably find from the evidence that deceased’s death had to be ascribed to the defendant’s unlawful and culpably negligent conduct, which it could reasonably have been foreseen was likely to result in serious injury, the evidence was sufficient to go to the jury on a charge of involuntary manslaughter. State v. Trueblood, 39 N.C. App. 459, 250 S.E.2d 666, 1979 N.C. App. LEXIS 2511 (1979).

Evidence Requiring Instruction on Proximate Cause. —

In a prosecution of a motorist for manslaughter in the deaths of two small boys who were struck by defendant’s car as defendant was attempting to pass another vehicle traveling in the same direction, evidence that the children were walking on the hard surface when they were struck and that the preceding car speeded up as defendant attempted to pass it, required the court to instruct the jury upon the conduct of the children in walking on the hard surface and the conduct of the other driver in increasing his speed, as bearing upon the question of whether defendant’s negligence was a proximate cause of the deaths. State v. Harrington, 260 N.C. 663 , 133 S.E.2d 452, 1963 N.C. LEXIS 778 (1963).

Evidence of Heat of Passion Required for Instruction on Voluntary Manslaughter. —

Voluntary manslaughter is defined as unlawful killing of a human being without malice, in the heat of passion as a result of legally sufficient provocation. Therefore, to warrant an instruction on voluntary manslaughter, there must be evidence that the killing occurred while the defendant was in heat of passion caused by legally sufficient provocation. State v. Upright, 72 N.C. App. 94, 323 S.E.2d 479, 1984 N.C. App. LEXIS 4005 (1984), cert. denied, 313 N.C. 610 , 332 S.E.2d 82, 1985 N.C. LEXIS 1864 (1985).

Absent any evidence to show heat of passion on sudden provocation, the trial court did not err by failing to submit possible verdicts of voluntary manslaughter. State v. Weeks, 322 N.C. 152 , 367 S.E.2d 895, 1988 N.C. LEXIS 239 (1988).

If there is any evidence of heat of passion on sudden provocation, either in the state’s evidence or offered by the defendant, the trial court must submit the possible verdict of voluntary manslaughter to the jury. State v. Weeks, 322 N.C. 152 , 367 S.E.2d 895, 1988 N.C. LEXIS 239 (1988).

To have been properly entitled to a jury instruction on voluntary manslaughter, defendant was required either to offer his own evidence or to rely upon the State’s evidence to show (1) that he stabbed his wife in the heat of passion, (2) that his passion was provoked by acts of his wife which the law regards as adequate provocation, and (3) that the stabbing occurred immediately after the provocation. State v. Tidwell, 323 N.C. 668 , 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Failure to Instruct as to Causal Connection Between Defendant’s Act and Death. —

Trial judge’s failure to instruct jury that a verdict of a guilty of manslaughter required proof beyond a reasonable doubt that defendant’s act proximately caused the death charged was error, despite plenary evidence upon which the jury could find death was the proximate result of defendant’s act. State v. Fowler, 285 N.C. 90 , 203 S.E.2d 803, 1974 N.C. LEXIS 925 (1974), vacated in part, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212, 1976 U.S. LEXIS 2264 (1976).

Failure to Instruct on Involuntary Manslaughter. —

In a prosecution for first-degree murder in which the defendant was found guilty of voluntary manslaughter, the trial judge erred in failing to instruct the jury on involuntary manslaughter where the defendant’s testimony was, in its entirety, an account of an unintentional killing. State v. Graham, 38 N.C. App. 86, 247 S.E.2d 300, 1978 N.C. App. LEXIS 2088 (1978).

Failure to Instruct Defendant Had No Duty to Retreat. —

Where the evidence showed that the victim of a fatal shooting was using deadly force, defendant was permitted to stand his ground and kill the victim if defendant believed it necessary and had a reasonable ground for such belief; therefore, as the trial court erred in failing to instruct that defendant had no duty to retreat defendant was entitled a new trial. State v. Nixon, 117 N.C. App. 141, 450 S.E.2d 562, 1994 N.C. App. LEXIS 1216 (1994).

Instruction on Excessive Force. —

It is difficult to imagine a homicide case in which the evidence supports an instruction on self-defense but not an instruction on voluntary manslaughter based upon an excessive force theory. State v. Best, 79 N.C. App. 734, 340 S.E.2d 524, 1986 N.C. App. LEXIS 2112 (1986).

Failure to Instruct on Involuntary Manslaughter Upheld. —

Assuming error in court’s failure to give a charge on involuntary manslaughter, it was harmless in view of the verdict of first-degree murder on the theory of premeditation and deliberation. State v. Hardison, 326 N.C. 646 , 392 S.E.2d 364, 1990 N.C. LEXIS 296 (1990).

Proof of Self-Defense. —

Instruction sufficient to apprise jury that defendant did not have the burden of proving self-defense. State v. Sprinkle, 30 N.C. App. 383, 226 S.E.2d 827, 1976 N.C. App. LEXIS 2260 (1976).

Question for the Jury. —

Where the evidence is conflicting with respect to the issue of whether the force used by a defendant was excessive under the circumstances, the question is properly submitted to the jury. State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702, 1985 N.C. App. LEXIS 4259 (1985).

Trial judge properly refused to submit voluntary manslaughter as an alternative verdict, where the State’s evidence tended to show a cold, calculated premeditated shooting by defendant, and defendant’s evidence, on the other hand, tended to show that he did not shoot victim intentionally and never intended to harm him, and that his gun accidentally discharged as he struggled with victim over the gun, which defendant had picked up to convince victim to stop choking him. State v. Blake, 317 N.C. 632 , 346 S.E.2d 399, 1986 N.C. LEXIS 2422 (1986).

Where the jury did not find defendant was in the grip of sufficient passion to reduce a charge of murder from first-degree to second-degree, then ipso facto it would not have found sufficient passion to find the defendant guilty only of voluntary manslaughter; therefore, the trial court did not err in failing to give the jury an instruction on voluntary manslaughter. State v. Tidwell, 323 N.C. 668 , 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Where defendant’s stabbing of his wife occurred more than eight hours after the alleged incident of provocation, the trial court was not required to charge the jury on a lesser included offense of voluntary manslaughter. State v. Tidwell, 323 N.C. 668 , 374 S.E.2d 577, 1989 N.C. LEXIS 4 (1989).

Mental Illness and Alcoholism Held Insufficient to Entitle Defendant to Voluntary Manslaughter Instruction. —

In a second degree murder case, evidence of a defendant’s mental illness and alcoholism will not rebut the presumption of malice where the killing was accomplished by the intentional use of a deadly weapon so as to entitle defendant to an instruction on the lesser-included offense of voluntary manslaughter. State v. Adams, 85 N.C. App. 200, 354 S.E.2d 338, 1987 N.C. App. LEXIS 2571 (1987).

In order for an instruction on voluntary manslaughter based on imperfect self-defense to be required, the first two elements of perfect self defense must be shown to exist. State v. Gappins, 320 N.C. 64 , 357 S.E.2d 654, 1987 N.C. LEXIS 2177 (1987).

Correction of Prosecutor’s Improper Statement of Law. —

Where during closing argument, prosecutor said, “Kind of like, I didn’t mean to do it, but, if I did, I’m sorry I did it. That’s what voluntary manslaughter is,” the prosecutor’s explanation of voluntary manslaughter was inadequate but not so grossly improper as to require the trial court to intervene ex mero motu; the trial court’s subsequent correct charge on the law of voluntary manslaughter provided adequate correction to any possible confusion created by the prosecutor’s language. State v. Laws, 325 N.C. 81 , 381 S.E.2d 609, 1989 N.C. LEXIS 377 (1989), vacated, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603, 1990 U.S. LEXIS 1489 (1990) (in light of) State v. Hefner, 199 N.C. 778 , 155 S.E. 879, 1930 N.C. LEXIS 251 (1930).

Instruction on Manslaughter Held Proper. —

Where the trial court instructed that defendant would be guilty of manslaughter if “he intentionally and unlawfully stabbed and killed” the victim, any possibility of prejudice in the defective charge was removed where prior to giving the above instruction, the court properly defined manslaughter as “the unlawful killing of a human being without malice, express or implied, and without deliberation or premeditation,” and when the jury later requested repeated instructions on the offenses charged, the court again gave a proper definition of manslaughter. State v. Edwards, 24 N.C. App. 303, 210 S.E.2d 273, 1974 N.C. App. LEXIS 1985 (1974).

There was no error in submitting to the jury an issue as to defendant’s guilt of manslaughter where the evidence would support a finding that defendant unlawfully killed, but without express or implied malice, or that he acted in self-defense but used excessive force, because either finding would warrant a verdict of manslaughter. State v. Goins, 24 N.C. App. 468, 211 S.E.2d 481, 1975 N.C. App. LEXIS 2406 , cert. denied, 287 N.C. 262 , 214 S.E.2d 434, 1975 N.C. LEXIS 1106 (1975).

Definitions of second-degree murder and voluntary manslaughter in the instructions to the jury in a prosecution for second-degree murder were not prejudicially deficient in that they did not require that the killings be intentional since specific intent to kill, while a necessary constituent of the elements of premeditation and deliberation in first-degree murder, is not an element of second-degree murder or manslaughter. State v. Alston, 295 N.C. 629 , 247 S.E.2d 898, 1978 N.C. LEXIS 1076 (1978).

Since involuntary manslaughter is a lesser-included offense of voluntary manslaughter and the record contained evidence from which a jury could find that defendant committed involuntary manslaughter, it is proper to submit involuntary manslaughter as a possible verdict charge in defendant’s trial for voluntary manslaughter, even though defendant argued self defense and used a knife. The evidence was sufficient for the jury to find defendant acted without any intent to kill or inflict serious injury where it could have concluded defendant either panicked or reacted instinctively upon discovering a man in his bathroom after he was told no one else was in the house. State v. Drew, 162 N.C. App. 682, 592 S.E.2d 27, 2004 N.C. App. LEXIS 247 (2004).

Instruction on Voluntary Manslaughter Held Improper. —

Voluntary manslaughter is the intentional unlawful killing of a human being, and therefore an instruction incorporating culpable negligence as an alternative finding is improper, since it does not require intent as a necessary element. St. Paul Fire & Marine Ins. Co. v. Lack, 476 F.2d 583, 1973 U.S. App. LEXIS 10812 (4th Cir. 1973).

In a prosecution for second-degree murder involving the death of a child from the so-called “battered child” syndrome, where there was a great disparity in age and size between the victim and her slayer, and particularly where the slayer stood in loco parentis with the child, as a matter of law adequate provocation could not be found to exist so as to justify submission of voluntary manslaughter where the evidence showed that the defendant beat and abused a child unto its death. State v. Vega, 40 N.C. App. 326, 253 S.E.2d 94, 1979 N.C. App. LEXIS 2267 , cert. denied, 297 N.C. 457 , 256 S.E.2d 809, 1979 N.C. LEXIS 1457 (1979), cert. denied, 444 U.S. 968, 100 S. Ct. 459, 62 L. Ed. 2d 382, 1979 U.S. LEXIS 3869 (1979).

Evidence held insufficient to support an instruction on voluntary manslaughter. State v. Sullivan, 86 N.C. App. 316, 357 S.E.2d 414, 1987 N.C. App. LEXIS 2705 (1987).

Instruction on Involuntary Manslaughter Held Proper. —

The trial judge, in a prosecution for second-degree murder, properly instructed the jury as to involuntary manslaughter where, in stating that if defendant while caring for his child “intentionally inflicted injury upon that child . . . under the age of sixteen years, and if his death directly resulted . . . defendant . . . would be guilty of involuntary manslaughter,” he was referring to an intentional violation of G.S. 14-318.2 . State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978).

Evidence was insufficient to be submitted to the jury on charges of second-degree murder and voluntary manslaughter but was sufficient to be submitted on the charge of involuntary manslaughter, where the evidence tended to show that defendant, a 16 year old boy, shot his 10 year old sister, but in showing the events leading up to and preceding the death of the sister, the State relied entirely on voluntary statements of defendant to the effect that he and his sister were fussing; defendant was “messing around with a shotgun”; and the gun accidentally went off. State v. Wagner, 50 N.C. App. 286, 273 S.E.2d 33, 1981 N.C. App. LEXIS 2111 (1981).

Where the evidence was uncontroverted that defendant was in a car driving away from the scene when the decedent called out, and that at that point defendant ordered the driver to stop, left the safety of the car with a loaded pistol in his hand, and approached the decedent, voluntarily placing himself in a volatile situation, the fact that he claimed that he did not intend the shooting would not cleanse him of culpability and thus give rise to a defense of accident. However, the defendant was entitled to have the jury consider whether he was guilty only of the offense of involuntary manslaughter. State v. Lytton, 319 N.C. 422 , 355 S.E.2d 485, 1987 N.C. LEXIS 2027 (1987).

Failure to Instruct on Involuntary Manslaughter Upheld. —

Under the evidence, the trial judge in murder trial did not err in failing to instruct on involuntary manslaughter. State v. Wingard, 317 N.C. 590 , 346 S.E.2d 638, 1986 N.C. LEXIS 2411 (1986).

Where the evidence showed that defendant either premeditated and deliberated and then murdered her husband, or accidentally shot her husband as she contended throughout her trial, the trial court properly refused to submit the lesser included offenses of second degree murder and involuntary manslaughter to the jury. State v. Hickey, 317 N.C. 457 , 346 S.E.2d 646, 1986 N.C. LEXIS 2434 (1986).

Where the defendant admitted that he knowingly slashed and stabbed the deceased with a hunting knife, the defendant’s use of such knife indicated a clear intent to inflict great bodily harm or death on the deceased; thus, the defendant’s actions would not fit within the definition of involuntary manslaughter, and therefore, the defendant would not qualify for such an instruction. State v. Fisher, 318 N.C. 512 , 350 S.E.2d 334, 1986 N.C. LEXIS 2738 (1986).

Defendant was not entitled to a jury instruction on manslaughter where the evidence for the State tended to show defendant and the victim dated periodically during the year preceding the victim’s death, defendant was jealous of other men and did not want the victim to see them, defendant stated he loved the victim but had threatened to kill both the victim and her ex-husband if he caught them together, defendant later followed the victim home from a motel and after the victim told defendant she did not want to see him again, defendant led the victim to a flower bed a few feet away, grabbed her arm, and as she turned her back to defendant, defendant shot the victim in the back of the head killing her. State v. Woodard, 324 N.C. 227 , 376 S.E.2d 753, 1989 N.C. LEXIS 101 (1989).

In felony murder trial for murder committed during the act of discharging a firearm into an occupied building, a felony under G.S. 14-34.1 , where defendant’s sole and unequivocal defense was that he was nowhere near the area on the night in question, an instruction on the offense of involuntary manslaughter was not warranted by the evidence. State v. Brewer, 325 N.C. 550 , 386 S.E.2d 569, 1989 N.C. LEXIS 604 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541, 1990 U.S. LEXIS 2638 (1990).

Failure to Instruct on Involuntary Manslaughter Held Harmless Error. —

Trial court’s failure to instruct the jury to consider a possible verdict for the lesser included offense of involuntary manslaughter was harmless error because the trial court gave correct instructions as to possible verdicts on murder in the first and second degrees and the jury found the defendant guilty of the greater crime of murder in the first degree upon a theory of premeditation and deliberation. State v. Young, 324 N.C. 489 , 380 S.E.2d 94, 1989 N.C. LEXIS 301 (1989).

Failure to Instruct on Involuntary Manslaughter Held Not Plain Error. —

The court did not commit “plain error” in failing to charge the jury on involuntary manslaughter, where the only possible evidentiary support for an involuntary manslaughter verdict was defendant’s statement to the police to the effect that he did not stab the victim and that she twice ran onto his knife, because defendant did not rely upon the statement in the trial court, but repudiated it as a lie. State v. Pulley, 90 N.C. App. 673, 369 S.E.2d 634, 1988 N.C. App. LEXIS 591 (1988).

Charge of Involuntary Manslaughter Held Error. —

If there is evidence of self-defense and no evidence of involuntary manslaughter, it is prejudicial error to submit a charge of involuntary manslaughter in a trial for second-degree murder. State v. Brooks, 46 N.C. App. 833, 266 S.E.2d 3, 1980 N.C. App. LEXIS 2926 (1980).

Where the record in a first-degree murder prosecution contained no evidence which tended to show that the victim died as the result of an unlawful act not amounting to a felony or as the result of an unlawful act that was not naturally dangerous to human life, it was error to permit the jury to consider the issue of involuntary manslaughter, and since it appeared that there was a reasonable possibility that the defendant would have been acquitted if the involuntary manslaughter issue had not been submitted, the error had to be held prejudicial. State v. Ataei-Kachuei, 68 N.C. App. 209, 314 S.E.2d 751, 1984 N.C. App. LEXIS 3206 (1984).

The appellate courts of this State have consistently held that it would be error to instruct on involuntary manslaughter when the only evidence of accident has been oral assertions by the defendant, especially where the defense has relied on self-defense. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506, 1985 N.C. App. LEXIS 4170 (1985).

VIII.Sufficiency of Evidence

The jury is required to find that defendant committed either an unlawful or a culpably negligent act before it can convict him of involuntary manslaughter. State v. Walker, 31 N.C. App. 199, 228 S.E.2d 772, 1976 N.C. App. LEXIS 1951 (1976).

In a manslaughter case arising from an automobile accident, evidence is sufficient to submit the case to the jury if it tends to show: (1) That the defendant was guilty of an intentional, wilful or wanton violation of a statute designed for the protection of human life and limb, or guilty of an inadvertent violation of such statute accompanied by recklessness of probable consequences of a dangerous nature amounting altogether to a thoughtless disregard of consequences, or heedless indifference to the safety and rights of other, and (2) that such violation and conduct was the proximate cause of the injury and resulting death of deceased. State v. Hillard, 81 N.C. App. 104, 344 S.E.2d 54, 1986 N.C. App. LEXIS 2270 (1986).

Evidence tending to show that defendant admitted drinking beer and taking Valium on the morning of the accident, that there were two empty beer cans and one half-empty beer can in his car, that blood analysis indicated the presence of .07% Valium in his blood after the accident, and that in the opinion of several witnesses he smelled of alcohol, had red, glassy eyes, and appeared to be impaired raised an inference from which the jury could find that defendant operated his vehicle after consuming alcohol and Valium, and when combined with evidence that immediately before the fatal accident defendant forced four cars other than the victim’s off the road by driving on the wrong side of the road, this evidence was sufficient to permit the jury to find that defendant operated his vehicle recklessly and in heedless disregard of the safety and rights of others, and that this conduct proximately caused the death of the victim. State v. Hillard, 81 N.C. App. 104, 344 S.E.2d 54, 1986 N.C. App. LEXIS 2270 (1986).

A plea of guilty or nolo contendere to automobile manslaughter does not establish intentional homicide. United Servs. Auto. Ass'n v. Wharton, 237 F. Supp. 255, 1965 U.S. Dist. LEXIS 6458 (W.D.N.C. 1965).

Evidence did not justify a charge on involuntary manslaughter where defendant intentionally discharged the gun under circumstances naturally dangerous to human life. State v. Ward, 286 N.C. 304 , 210 S.E.2d 407, 1974 N.C. LEXIS 1229 (1974), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207, 1976 U.S. LEXIS 4200 (1976).

Insufficient Evidence of Sudden Provocation. —

In a prosecution for murder while there was evidence that defendants’ mother may have been assaulted, there was no evidence whatsoever as to who may have assaulted her and, furthermore, the evidence was clear that the events giving rise to defendants’ mother’s wounds were considerably removed in time from the events surrounding the death of the victim; therefore, accepting, arguendo, that an assault or threatened assault on a close relative may provide adequate or legal provocation to arouse heat of passion, the evidence did not show anger suddenly aroused by provocation which the law deems adequate to dethrone reason temporarily and to displace malice. State v. Spicer, 50 N.C. App. 214, 273 S.E.2d 521, 1981 N.C. App. LEXIS 2110 (1981).

Use of Excessive Force in Self-Defense. —

Where the evidence permitted an inference that defendant shot victim in the back as he was retreating with an empty pistol, and twice more through a closed door, the evidence was sufficient to carry the case to the jury on the question of whether defendant used excessive force in self-defense. State v. Rathbone, 78 N.C. App. 58, 336 S.E.2d 702, 1985 N.C. App. LEXIS 4259 (1985).

Motion to Dismiss Properly Overruled. —

Where the evidence tended to show that victim was kicked, stomped and struck with various objects by between 6 and 15 people, and that defendant’s subsequent kicking of victim several times in the abdominal area caused or contributed to the victim’s death, the trial court properly overruled defendant’s motion to dismiss. State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42, 1986 N.C. App. LEXIS 2171 (1986).

Evidence Sufficient to Sustain Conviction. —

Evidence that defendant was handling gun in a culpably negligent manner at the time it fired and killed another was sufficient to support a conviction of involuntary manslaughter. State v. Brooks, 260 N.C. 186 , 132 S.E.2d 354, 1963 N.C. LEXIS 670 (1963).

Evidence that a nephew badly beat his uncle with a stove-lid lifter and, at the instance of a third person, desisted and left, that the uncle stated that if the nephew came back he was going to shoot him, and that when the nephew returned the uncle shot the unarmed nephew as the nephew stepped in the door, inflicting fatal injury, was sufficient to sustain conviction of manslaughter. State v. Dunlap, 268 N.C. 301 , 150 S.E.2d 436, 1966 N.C. LEXIS 1191 (1966).

Although there was a conflicting version of the shooting from defense witnesses, the State’s evidence was clearly sufficient to sustain a verdict of voluntary manslaughter. State v. Carver, 22 N.C. App. 674, 207 S.E.2d 299, 1974 N.C. App. LEXIS 2413 , rev'd, 286 N.C. 179 , 209 S.E.2d 785, 1974 N.C. LEXIS 1192 (1974).

In a prosecution for manslaughter, evidence was sufficient to show that the assault by defendants was a proximate cause of the victim’s death where the victim was knocked to the sidewalk on his back and, because of his intoxicated condition, was unable to expel vomitus from his mouth and died as a result of aspiration of vomitus. State v. Cummings, 46 N.C. App. 680, 265 S.E.2d 923, 1980 N.C. App. LEXIS 2915 , aff'd, 301 N.C. 374 , 271 S.E.2d 277, 1980 N.C. LEXIS 1172 (1980).

Testimony of defendant which showed that he pointed a pistol toward victim, which fired when he tried to pull it back, and that he fired second shot in an effort to scare victim away from him was sufficient to show culpable negligence on the part of defendant which proximately caused the death of victim. State v. Lane, 77 N.C. App. 741, 336 S.E.2d 410, 1985 N.C. App. LEXIS 4365 (1985).

Evidence held sufficient to permit the jury to conclude that defendant was guilty of voluntary manslaughter and assault with a deadly weapon inflicting serious injury. State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603, 1986 N.C. App. LEXIS 2135 , writ denied, 316 N.C. 556 , 344 S.E.2d 3, 1986 N.C. LEXIS 2377 (1986).

In a prosecution for involuntary manslaughter, evidence was sufficient to permit the jury to find beyond a reasonable doubt that death resulted from two-year-old victim having been violently handled or shaken, an act which produced both pattern-type bruises and abrasions and a subdural hematoma. State v. Evans, 317 N.C. 326 , 345 S.E.2d 193, 1986 N.C. LEXIS 2783 (1986).

Evidence was sufficient to permit a reasonable jury to conclude that the victim died as a result of the defendant’s culpably negligent handling of a loaded firearm. State v. Benjamin, 83 N.C. App. 318, 349 S.E.2d 878, 1986 N.C. App. LEXIS 2699 (1986).

Jury could reasonably have found from the evidence that defendant’s continuing to drive while passenger repeatedly discharged his gun amounted to a disregard for the rights and safety of others that proximately caused victim’s death, and could, therefore, based on this evidence, have reasonably found her guilty of involuntary manslaughter. State v. Thomas, 325 N.C. 583 , 386 S.E.2d 555, 1989 N.C. LEXIS 597 (1989).

The facts indicated that when defendant got into the truck to drive off his wife was yelling at him, leaning on the driver’s side rear view mirror and reaching into the truck in an attempt to turn off the ignition and stop the truck. Defendant found it necessary to push his wife away from the truck in order to leave. Under these facts, the victim’s yelling and threatening behavior would have a natural tendency to arouse the passions of an ordinary person. Insofar as there was evidence before the court to support a conviction of voluntary manslaughter, it was proper to submit that issue to the jury. State v. Mathis, 105 N.C. App. 402, 413 S.E.2d 301, 1992 N.C. App. LEXIS 230 (1992).

Evidence, although mostly circumstantial, in the form of defendant trying to break up the victim and the man she was dating, the victim using defendant’s cell phone on the night she disappeared, a bullet hole in the wall of defendant’s house trailer, and defendant not having an alibi, was sufficient to support the conviction for voluntary manslaughter. State v. Lassiter, 160 N.C. App. 443, 586 S.E.2d 488, 2003 N.C. App. LEXIS 1828 (2003).

Admissible testimony and opinions of woman who, with victim who died from smoking methamphetamine and defendant, smoked an eight-ball of meth was sufficient evidence to convict defendant of possession and its sale, by exchange for work, under G.S. 90-95 and involuntary manslaughter under G.S. 14-18 . State v. Yelton, 175 N.C. App. 349, 623 S.E.2d 594, 2006 N.C. App. LEXIS 44 (2006).

Insufficient Evidence to Sustain Verdict of Manslaughter. —

See State v. Harrington, 22 N.C. App. 473, 206 S.E.2d 768, 1974 N.C. App. LEXIS 2360 , aff'd, 286 N.C. 327 , 210 S.E.2d 424, 1974 N.C. LEXIS 1232 (1974).

Evidence would not support a verdict of voluntary manslaughter where the killing did not result from the use of excessive force in the exercise of the right of self-defense, nor was it the result of anger suddenly aroused by provocation which the law deems adequate to dethrone reason temporarily and to displace malice. State v. Ward, 286 N.C. 304 , 210 S.E.2d 407, 1974 N.C. LEXIS 1229 (1974), vacated in part, 428 U.S. 903, 96 S. Ct. 3206, 49 L. Ed. 2d 1207, 1976 U.S. LEXIS 4200 (1976).

Evidence would not support verdict of involuntary manslaughter where there was no evidence tending to show defendant was negligent in firing his gun and no evidence that a bullet from defendant’s gun was the proximate cause of victim’s death. State v. Meadlock, 95 N.C. App. 146, 381 S.E.2d 805, 1989 N.C. App. LEXIS 677 , writ denied, 325 N.C. 434 , 384 S.E.2d 544, 1989 N.C. LEXIS 525 (1989).

§ 14-18.1. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 73.

§ 14-18.2. [Repealed]

Repealed by Session Laws 2011-60, s. 3, effective December 1, 2011, and applicable to offenses committed on or after that date.

History. 1998-212, s. 17.16(b); repealed by 2011-60, s. 3, effective December 1, 2011.

Editor’s Note.

Session Laws 2011-60, s. 5, effective December 1, 2011, provides: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Former G.S. 14-18.2 pertained to injury to pregnant women.

§ 14-18.4. Death by distribution of certain controlled substances; aggravated death by distribution of certain controlled substances; penalties.

  1. Legislative Intent. —  The General Assembly recognizes that deaths due to the opioid epidemic are devastating families and communities across North Carolina. The General Assembly finds that the opioid crisis is overwhelming medical providers engaged in the lawful distribution of controlled substances and is straining prevention and treatment efforts. Therefore, the General Assembly enacts this law to encourage effective intervention by the criminal justice system to hold illegal drug dealers accountable for criminal conduct that results in death.
  2. Death by Distribution of Certain Controlled Substances. —  A person is guilty of death by distribution of certain controlled substances if all of the following requirements are met:
    1. The person unlawfully sells at least one certain controlled substance.
    2. The ingestion of the certain controlled substance or substances causes the death of the user.
    3. The commission of the offense in subdivision (1) of this subsection was the proximate cause of the victim’s death.
    4. The person did not act with malice.
  3. Aggravated Death by Distribution of Certain Controlled Substances. —  A person is guilty of aggravated death by distribution of certain controlled substances if all of the following requirements are met:
    1. The person unlawfully sells at least one certain controlled substance.
    2. The ingestion of the certain controlled substance or substances causes the death of the user.
    3. The commission of the offense in subdivision (1) of this subsection was the proximate cause of the victim’s death.
    4. The person did not act with malice.
    5. The person has a previous conviction under this section, G.S. 90-95(a)(1), 90-95.1, 90-95.4, 90-95.6, or trafficking in violation of G.S. 90-95(h), or a prior conviction in any federal or state court in the United States that is substantially similar to an offense listed, within seven years of the date of the offense. In calculating the seven-year period under this subdivision, any period of time during which the person was incarcerated in a local, state, or federal detention center, jail, or prison shall be excluded.
  4. Certain Controlled Substance. —  For the purposes of this section, the term “certain controlled substance” includes any opium, opiate, or opioid; any synthetic or natural salt, compound, derivative, or preparation of opium, opiate, or opioid; cocaine or any other substance described in G.S. 90-90(1)(d); methamphetamine; a depressant described in G.S. 90-92(a)(1); or a mixture of one or more of these substances.
  5. Lesser Included Offense. —  Death by distribution of certain controlled substances constitutes a lesser included offense of aggravated death by distribution of certain controlled substances in violation of this section.
  6. Samaritan Protection. —  Nothing in this section shall be construed to restrict or interfere with the rights and immunities provided under G.S. 90-96.2 .
  7. Lawful Distribution. —  This section shall not apply to any of the following:
    1. Issuing a valid prescription for a controlled substance for a legitimate medical purpose by an individual practitioner acting in the usual course of professional practice.
    2. Dispensing, delivering, or administering a controlled substance pursuant to a prescription, by a pharmacy permitted under G.S. 90-85.21 , a pharmacist, or an individual practitioner.
  8. Penalties. —  Unless the conduct is covered under some other provision of law providing greater punishment, the following classifications apply to the offenses set forth in this section:
    1. Death by distribution of certain controlled substances is a Class C felony.
    2. Aggravated death by distribution of certain controlled substances is a Class B2 felony.

History. 2019-83, s. 1.

Editor’s Note.

Session Laws 2019-83 provides in its preamble: “Whereas, the General Assembly finds that the number of deaths resulting from opioid-related overdoses has drastically increased over the past 20 years; and

“Whereas, the General Assembly finds that the number of deaths resulting from opioid-related overdoses is unlikely to be reduced so long as the drug continues to be made available through illegal distribution by drug dealers; and

“Whereas, the General Assembly finds that the legal distribution of opioids should only be through a prescription issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his or her professional practice; and

“Whereas, it is the intent of the General Assembly to strengthen the laws to act as a greater deterrent to persons who want to illegally distribute opioids and further exacerbate the opioid epidemic; Now, therefore,”

Session Laws 2019-83, s. 2, made this section as added by Session Laws 2019-83, s. 1, effective December 1, 2019, and applicable to offenses committed on or after that date.

Legal Periodicals.

For comment, “’Retribution, Not a Solution’: Drug-Induced Homicide in North Carolina,” see 42 Campbell L. Rev. 161 (2020).

For note, “From Overdoes to Crime Scene: The Incompatibility of Drug-Induced Homicide Statutes with Due Process,” see 70 Duke L.J. 659 (2020).

§ 14-19. [Repealed]

Repealed by Session Laws 1979, c. 760, s. 5.

§ 14-20. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 29(1).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§§ 14-21 through 14-23. [Repealed]

Repealed by Session Laws 1979, c. 682, s. 7.

Cross References.

As to rape and other sex offenses, see now G.S. 14-27.20 et seq.

Article 6A. Unborn Victims.

§ 14-23.1. Definition.

As used in this Article only, “unborn child” means a member of the species homo sapiens, at any stage of development, who is carried in the womb.

History. 2011-60, s. 2.

Cross References.

As to domestic violence, generally, see G.S. 50B-1 et seq.

Editor’s Note.

Session Laws 2011-60, s. 1 provides: “This act shall be known as the ‘Unborn Victims of Violence Act/Ethen’s Law.’ ”

Session Laws 2011-60, ss. 4-7, provide: “SECTION 4. This act shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. The term ‘domestic violence’ is defined in Chapter 50B of the General Statutes.

“SECTION 5. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

“SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

“SECTION 7. A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”

Session Laws 2011-60, s. 8, made this article effective December 1, 2011, and applicable to offenses committed on or after that date.

§ 14-23.2. Murder of an unborn child; penalty.

  1. A person who unlawfully causes the death of an unborn child is guilty of the separate offense of murder of an unborn child if the person does any one of the following:
    1. Willfully and maliciously commits an act with the intent to cause the death of the unborn child.
    2. Causes the death of the unborn child in perpetration or attempted perpetration of any of the criminal offenses set forth under G.S. 14-17 .
    3. Commits an act causing the death of the unborn child that is inherently dangerous to human life and is done so recklessly and wantonly that it reflects disregard of life.
  2. Penalty. — An offense under:
    1. Subdivision (a)(1) or (a)(2) of this section shall be a Class A felony, and any person who commits such offense shall be punished with imprisonment in the State’s prison for life without parole.
    2. Subdivision (a)(3) of this section shall be subject to the same sentence as if the person had been convicted of second degree murder pursuant to G.S. 14-17 .

History. 2011-60, s. 2.

Editor’s Note.

Session Laws 2011-60, ss. 4-7, provide: “SECTION 4. This act shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. The term ‘domestic violence’ is defined in Chapter 50B of the General Statutes.

“SECTION 5. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

“SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

“SECTION 7. A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”

§ 14-23.3. Voluntary manslaughter of an unborn child; penalty.

  1. A person is guilty of the separate offense of voluntary manslaughter of an unborn child if the person unlawfully causes the death of an unborn child by an act that would be voluntary manslaughter if it resulted in the death of the mother.
  2. Penalty. — Any person who commits an offense under this section shall be guilty of a Class D felony.

History. 2011-60, s. 2.

Editor’s Note.

Session Laws 2011-60, ss. 4-7, provide: “SECTION 4. This act shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. The term ‘domestic violence’ is defined in Chapter 50B of the General Statutes.

“SECTION 5. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

“SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

“SECTION 7. A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”

§ 14-23.4. Involuntary manslaughter of an unborn child; penalty.

  1. A person is guilty of the separate offense of involuntary manslaughter of an unborn child if the person unlawfully causes the death of an unborn child by an act that would be involuntary manslaughter if it resulted in the death of the mother.
  2. Penalty. — Any person who commits an offense under this section shall be guilty of a Class F felony.

History. 2011-60, s. 2.

Editor’s Note.

Session Laws 2011-60, ss. 4-7, provide: “SECTION 4. This act shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. The term ‘domestic violence’ is defined in Chapter 50B of the General Statutes.

“SECTION 5. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

“SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

“SECTION 7. A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”

§ 14-23.5. Assault inflicting serious bodily injury on an unborn child; penalty.

  1. A person is guilty of the separate offense of assault inflicting serious bodily injury on an unborn child if the person commits a battery on the mother of the unborn child and the child is subsequently born alive and suffered serious bodily harm as a result of the battery.
  2. For purposes of this section, “serious bodily harm” is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization, or causes the birth of the unborn child prior to 37-weeks gestation, if the child weighs 2,500 grams or less at the time of birth.
  3. Penalty. — Any person who commits an offense under this section shall be guilty of a Class F felony.

History. 2011-60, s. 2.

Editor’s Note.

Session Laws 2011-60, ss. 4-7, provide: “SECTION 4. This act shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. The term ‘domestic violence’ is defined in Chapter 50B of the General Statutes.

“SECTION 5. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

“SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

“SECTION 7. A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”

§ 14-23.6. Battery on an unborn child.

  1. A person is guilty of the separate offense of battery on an unborn child if the person commits a battery on a pregnant woman. This offense is a lesser-included offense of G.S. 14-23.5 .
  2. Penalty. — Any person who commits an offense under this section is guilty of a Class A1 misdemeanor.

History. 2011-60, s. 2.

Editor’s Note.

Session Laws 2011-60, ss. 4-7, provide: “SECTION 4. This act shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. The term ‘domestic violence’ is defined in Chapter 50B of the General Statutes.

“SECTION 5. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

“SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

“SECTION 7. A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”

§ 14-23.7. Exceptions.

Nothing in this Article shall be construed to permit the prosecution under this Article of any of the following:

  1. Acts which cause the death of an unborn child if those acts were lawful, pursuant to the provisions of G.S. 14-45.1 .
  2. Acts which are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment.
  3. Acts committed by a pregnant woman with respect to her own unborn child, including, but not limited to, acts which result in miscarriage or stillbirth by the woman. The following definitions shall apply in this section:
    1. Miscarriage. — The interruption of the normal development of an unborn child, other than by a live birth, and which is not an induced abortion permitted under G.S. 14-45.1 , resulting in the complete expulsion or extraction from a pregnant woman of the unborn child.
    2. Stillbirth. — The death of an unborn child prior to the complete expulsion or extraction from a woman, irrespective of the duration of pregnancy and which is not an induced abortion permitted under G.S. 14-45.1 .

History. 2011-60, s. 2.

Editor’s Note.

Session Laws 2011-60, ss. 4-7, provide: “SECTION 4. This act shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. The term ‘domestic violence’ is defined in Chapter 50B of the General Statutes.

“SECTION 5. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

“SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

“SECTION 7. A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”

§ 14-23.8. Knowledge not required.

Except for an offense under G.S. 14-23.2(a)(1), an offense under this Article does not require proof of either of the following:

  1. The person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant.
  2. The defendant intended to cause the death of, or bodily injury to, the unborn child.

History. 2011-60, s. 2.

Editor’s Note.

Session Laws 2011-60, ss. 4-7, provide: “SECTION 4. This act shall not be construed to impose criminal liability on an expectant mother who is the victim of acts of domestic violence which cause injury or death to her unborn child. The term ‘domestic violence’ is defined in Chapter 50B of the General Statutes.

“SECTION 5. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.

“SECTION 6. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

“SECTION 7. A prosecution for or conviction under this act is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.”

Article 7. Rape and Kindred Offenses. [Repealed]

§§ 14-24, 14-25. [Repealed]

Repealed by Session Laws, 1975, c. 402.

Cross References.

As to rape and other sex offenses, see now G.S. 14-27.20 et seq.

§§ 14-26, 14-27. [Repealed]

Repealed by Session Laws 1979, c. 682, s. 7.

Article 7A. Rape and Other Sex Offenses. [Repealed]

Editor’s Note. — Session Laws 2015-181, ss. 2 through 5, 7 through 10, and 13 through 15, recodified sections in former Article 7A of Chapter 14, Rape and Other Sex Offenses, as Article 7B of Chapter 14, Rape and Other Sex Offenses, effective December 1, 2015, and applicable to offenses committed on or after that date. Historical citations and annotations to former sections have been set out in the new sections where appropriate.

Table of Comparable Sections Former Article 7A of Chapter 14 to Present Article 7B of Chapter 14

Former Present Section Section 14-27.1 14-27.20 14-27.2(a)(2), (b), (c) 14-27.21 14-27.3 14-27.22 14-27.2A 14-27.23 14-27.2(a)(1) 14-27.24 14-27.7A 14-27.25 14-27.4(a)(2), (b) 14-27.26 14-7.5 14-27.27 14-27.4A 14-27.28 14-27.4(a)(1) 14-27.29 14-27.7A 14-27.30 14-27.7(a). 14-27.31 14-27.7(b) 14-27.32 14-27.5A 14-27.33 14-27.8 14-27.34 14-27.9 14-27.35 14-27.10 14-27.36

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§ 14-27.1.

Recodified as G.S. 14-27.20 by Session Laws 2015-181, s. 2, effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.1 and was recodified as G.S. 14-27.20 by Session Laws 2015-181, s. 2.

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.2. [Repealed]

Recodified as G.S. 14-27.21 by Session Laws 2015-181, s. 3(a), effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.2 and was recodified as G.S. 14-27.21 by Session Laws 2015-181, s. 3(a).

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.2A. [Repealed]

Recodified as G.S. 14-27.23 by Session Laws 2015-181, s. 5(a), effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.2 A and was recodified as G.S. 14-27.2 3 by Session Laws 2015-181, s. 5(a).

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.3. [Repealed]

Recodified as G.S. 14-27.22 by Session Laws 2015-181, s. 4(a), effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.3 and was recodified as G.S. 14-27.22 by Session Laws 2015-181, s. 4(a).

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.4. [Repealed]

Recodified as G.S. 14-27.26 by Session Laws 2015-181, s. 8(a), effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.4 and was recodified as G.S. 14-27.26 by Session Laws 2015-181, s. 8(a).

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.4A. [Repealed]

Recodified as G.S. 14-27.28 by Session Laws 2015-181, s. 10(a), effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.4 A and was recodified as G.S. 14-27.28 by Session Laws 2015-181, s. 10(a).

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.5. [Repealed]

Recodified as G.S. 14-27.27 by Session Laws 2015-181, s. 9(a), effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.5 and was recodified as G.S. 14-27.27 by Session Laws 2015-181, s. 9(a).

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.5A. [Repealed]

Recodified as G.S. 14-27.33 by Session Laws 2015-181, s. 15, effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.5 A and was recodified as G.S. 14-27.33 by Session Laws 2015-181, s. 15.

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.6. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 71(3).

§ 14-27.7. [Repealed]

Recodified as G.S. 14-27.31 and 14-27.32 by Session Laws 2015-181, ss. 13(a) and 14(a), effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.7 . G.S. 14-27.7 (a) was recodified as G.S. 14-27.31 and G.S. 14-27.7(b) was recodified as G.S. 14-27.32 by Session Laws 2015-181, ss. 13(a) and 14(a).

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.7A. [Repealed]

Recodified as G.S. 14-27.25 by Session Laws 2015-181, s. 7(a), effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.7 A and was recodified as G.S. 14-27.25 by Session Laws 2015-181, s. 7(a).

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.8. [Repealed]

Recodified as G.S. 14-27.34 by Session Laws 2015-181, s. 15, effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.8 and was recodified as G.S. 14-27.34 by Session Laws 2015-181, s. 15.

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.9. [Repealed]

Recodified as G.S. 14-27.35 by Session Laws 2015-181, s. 15, effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.9 and was recodified as G.S. 14-27.35 by Session Laws 2015-181, s. 15.

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-27.10. [Repealed]

Recodified as G.S. 14-27.36 by Session Laws 2015-181, s. 15, effective December 1, 2015, and applicable to offenses committed on or after that date.

Editor’s Note.

This section was enacted as G.S. 14-27.10 and was recodified as G.S. 14-27.36 by Session Laws 2015-181, s. 15.

Session Laws 2015-181, s. 48, made the recodification of this section effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Article 7B. Rape and Other Sex Offenses.

§ 14-27.20. Definitions.

The following definitions apply in this Article:

  1. Repealed by Session Laws 2018-47, s. 4(a), effective December 1, 2018.

    (1a) Against the will of the other person. — Either of the following:

    1. Without consent of the other person.
    2. After consent is revoked by the other person, in a manner that would cause a reasonable person to believe consent is revoked.
  2. Mentally incapacitated. — A victim who due to any act is rendered substantially incapable of either appraising the nature of his or her conduct, or resisting the act of vaginal intercourse or a sexual act.

    (2a) Person who has a mental disability. — A victim who has an intellectual disability or a mental disorder that temporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting the act of vaginal intercourse or a sexual act, or of communicating unwillingness to submit to the act of vaginal intercourse or a sexual act.

  3. Physically helpless. — Any of the following:
    1. A victim who is unconscious.
    2. A victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.
  4. Sexual act. — Cunnilingus, fellatio, analingus, or anal intercourse, but does not include vaginal intercourse. Sexual act also means the penetration, however slight, by any object into the genital or anal opening of another person’s body. It is an affirmative defense that the penetration was for accepted medical purposes.
  5. Sexual contact. — Any of the following:
    1. Touching the sexual organ, anus, breast, groin, or buttocks of any person.
    2. A person touching another person with their own sexual organ, anus, breast, groin, or buttocks.
    3. A person ejaculating, emitting, or placing semen, urine, or feces upon any part of another person.
  6. Touching. — As used in subdivision (5) of this section, means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim.

History. 1979, c. 682, s. 1; 2002-159, s. 2(a); 2003-252, s. 1; 2006-247, s. 12(a); 2015-181, s. 2; 2018-47, s. 4(a); 2019-245, ss. 5(a), 6(c).

Cross References.

For the Address Confidentiality Program, see G.S. 15C-1 et seq.

Editor’s Note.

Session Laws 2006-247, s. 1(a), provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

This section was formerly codified as G.S. 14-27.1 . It was recodified as G.S. 14-27.20 by Session Laws 2015-181, s. 2, effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification of this section by Session Laws 2015-181, s. 2, effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the rewriting of this section by Session Laws 2018-47, s. 4(a), effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 5(b), made subdivision (1a), as added by Session Laws 2019-245, s. 5(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 9(c), made the amendment of subdivision (2) of this section by Session Laws 2019-245, s. 6(c), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 9(a), is a severability clause.

Effect of Amendments.

Session Laws 2006-247, s. 12(a), effective December 1, 2006, and applicable to offenses committed on or after that date, added clause (iii) of subdivision (5) and made minor stylistic changes.

Session Laws 2018-47, s. 4(a), rewrote the section. For effective date and applicability, see editor’s note.

Session Laws 2019-245, s. 5(a), added subdivision (1a). For effective date and applicability, see editor’s note.

Session Laws 2019-245, s. 6(c), substituted “any act” for “(i) any act committed upon the victim or (ii) a poisonous or controlled substance provided to the victim without the knowledge or consent of the victim” in subdivision (2). For effective date and applicability, see editor’s note.

Legal Periodicals.

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For note discussing “serious personal injury” in rapes and sexual offenses in light of State v. Boone, 307 N.C. 198 , 297 S.E.2d 585 (1982), see 19 Wake Forest L. Rev. 881 (1983).

For note, “The ‘Outer Limits’ of the Right of Privacy: Bowers v. Hardwick,” see 22 Wake Forest L. Rev. 629 (1987).

For note that addresses the effect of a recent United States Supreme Court decision on sodomy laws and the manner in which society may shape its characterization of Acquired Immune Deficiency Syndrome (AIDS) and homosexuality, see 66 N.C.L. Rev. 226 (1987).

For note, “The General Fear Theory and Intrafamilial Sexual Assault,” see 66 N.C.L. Rev. 1177 (1988).

For survey on new penalties for criminal behavior in schools, see 22 Campbell L. Rev. 253 (2000).

For note, “Antiquated Notions of Womanhood and the Myth of the Unstoppable Male: Why Post-penetration Rape Should Be a Crime in North Carolina,” see 82 N.C.L. Rev. 1258 (2004).

For article, “Transforming Teenagers into Oral Sex Felons: The Persistence of the Crime Against Nature After Lawrence v. Texas,” see 43 Wake Forest L. Rev. 155 (2008).

For article, “Let’s Talk Specifics: Why STI Evidence Should Be Treated as a ‘Specific Instance’ Under Rape Shield Laws,” see 98 N.C.L. Rev. 689 (2020).

CASE NOTES

“Oral Sex” by Female on Male Construed. —

The term “oral sex” is recognized as describing a sexual act involving contact between the mouth of one party and the sex organs of another. When a female is said to perform oral sex on a male the term is reasonably taken to mean fellatio. State v. Goodson, 313 N.C. 318 , 327 S.E.2d 868, 1985 N.C. LEXIS 1528 (1985).

“Analingus” does not require penetration by the tongue, but requires only the stimulation of the anal opening by the tongue or lips. State v. White, 101 N.C. App. 593, 401 S.E.2d 106, 1991 N.C. App. LEXIS 143 (1991).

Penetration by the penis is not an element of “analingus.” State v. White, 101 N.C. App. 593, 401 S.E.2d 106, 1991 N.C. App. LEXIS 143 (1991).

“Any Object” Includes Parts of Human Body. —

In defining a “sexual act” in subdivision (4) as “the penetration, however slight, by any object into the genital or anal opening of another person’s body,” the legislature intended the words “any object” to embrace parts of the human body as well as inanimate or foreign objects; therefore, the State’s evidence was sufficient for the jury in a prosecution for second-degree sexual offense where it tended to show that the defendant penetrated the genital opening of the prosecutrix’s body with his fingers. State v. Lucas, 302 N.C. 342 , 275 S.E.2d 433, 1981 N.C. LEXIS 1054 (1981).

In defendant’s trial for first-degree rape and first-degree sex offense, defendant’s attorney actively participated in crafting the trial court’s response to the jury question, agreed with the trial court’s interpretation that a penis could be considered an “object,” and denied the trial court’s proposed clarification between vaginal intercourse and a sexual act, and thus defendant invited any error stemming from the trial court’s instructions. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

“Substantially Incapable” of Resisting. —

The element of “substantially incapable of . . . resisting the act of vaginal intercourse or sexual act” is not negated by the victim’s ability to verbally protest or even to engage in some physical resistance of the abuse. The words “substantially incapable” show the legislature’s intent to include within the definition of “mentally defective” those persons who by reason of their mental retardation or disorder would give little or no physical resistance to a sexual act. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, 1987 N.C. App. LEXIS 2586 , writ denied, 320 N.C. 174 , 358 S.E.2d 65, 1987 N.C. LEXIS 2182 (1987).

Evidence was sufficient to show that the injuries to the vagina were inflicted on the victim by defendant in an attempt to commit anal intercourse or in furtherance of the anal intercourse, and therefore, as part of one continuous transaction, the rape and the ensuing serious injuries the victim suffered as a result of the rape wore down the victim’s resistance and contributed to her submission so that defendant was able to inflict further personal injury on the victim with the sexual offense of anal intercourse. State v. Lilly, 117 N.C. App. 192, 450 S.E.2d 546, 1994 N.C. App. LEXIS 1212 (1994), aff'd, 342 N.C. 409 , 464 S.E.2d 42, 1995 N.C. LEXIS 670 (1995).

Trial court did not err in denying defendant’s motion to dismiss for insufficient evidence and in convicting him of second-degree rape in violation of G.S. 14-27.3(a)(2) because given the evidence of the victim’s age, frailty, and physical limitations, there was evidence from which the jury could reasonably conclude that the victim was not able to actively oppose or resist her attacker; the victim was 83 years of age, suffered from severe arthritis, and normally walked with the assistance of a walker, and because of the victim’s physical condition, it was impossible for her to travel down the front steps of her house without assistance. State v. Atkins, 193 N.C. App. 200, 666 S.E.2d 809, 2008 N.C. App. LEXIS 1743 (2008).

“Sexual Act”. —

Where the victim testified that defendant stuck two fingers inside her after pulling her clothes off and then licked her between her legs stating that he wanted to please her like a woman should be pleased, there was sufficient evidence to support defendant’s conviction based on the requisite “sexual act.” State v. Randolph, 224 N.C. App. 521, 735 S.E.2d 845, 2012 N.C. App. LEXIS 1444 (2012).

Sufficient evidence existed to support the denial of defendant’s motion to dismiss a first-degree sexual offense with a child charge because the minor victim, during the victim’s remote testimony discussed and demonstrated how defendant undressed and inserted a finger into the victim, a doctor who examined the victim a day after the incident opined that a penetrating injury had occurred, and the responding police officer and a police detective testified as to the statements which the victim made of defendant touching the victim’s genital area. State v. Phachoumphone, 257 N.C. App. 848, 810 S.E.2d 748, 2018 N.C. App. LEXIS 90 (2018).

Using a pattern instruction defining “sexual act” more broadly than precedent was not plain error because (1) defendant did not show a correct instruction would have caused a different verdict, and (2) verdicts finding defendant not guilty of a sex offense and guilty of child abuse showed no plain error, as inconsistent verdicts were not prima facie error, and defendant’s charges were not mutually exclusive. State v. Alonzo, 261 N.C. App. 51, 819 S.E.2d 584, 2018 N.C. App. LEXIS 800 (2018), modified, aff'd, 373 N.C. 437 , 838 S.E.2d 354, 2020 N.C. LEXIS 86 (2020).

Defendant’s argument that the trial court committed plain error by improperly instructing the jury on the definition of the term “sexual act” was squarely precluded by a prior decision of the court of appeals that addressed whether the phrase “sexual act” in the felony child abuse statute included vaginal intercourse because the court of appeals had to follow the most recent, controlling case addressing the question. State v. Gonzalez, 263 N.C. App. 527, 823 S.E.2d 886, 2019 N.C. App. LEXIS 20 (2019).

Sufficient evidence supported defendant’s conviction for attempted sexual offense because defendant’s attempt to engage in a sexual act with a victim when defendant put defendant’s hand between a victim’s legs and tried to push defendant’s hand up the victim’s skirt and a conclusion that this was an overt act exceeding mere preparation could be reasonably inferred, as well as, on another occasion, defendant’s intent to engage in a sex offense and overt act towards achieving this end. State v. Bauguss, 265 N.C. App. 33, 827 S.E.2d 127, 2019 N.C. App. LEXIS 341 (2019).

Court of Appeals erred when it held that the trial court erred by failing to instruct the jury on the definition of “sexual act” in former G.S. 14-27.1 (4) and the North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions need not turn its attention to the definition of “sexual act” in G.S. 14-318.4(a2) as it was instructed to do by the Court of Appeals because the legislative history demonstrated that from the time G.S. 14-27.1 was enacted in 1980, until it took its current form in G.S. 14-27.20 , the legislature intended for the definitions in the statute to apply only within the respective article, and the Supreme Court of North Carolina interpreted the definition of “sexual act” in G.S. 14-27.1(4) as arising from the specific elements of the crimes listed in Article 7A. State v. Alonzo, 373 N.C. 437 , 838 S.E.2d 354, 2020 N.C. LEXIS 86 (2020).

Trial court did not plainly err in instructing the jury based on N.C. Pattern Instructions Crim. No. 239-55B, instead of the definition of “sexual act” in G.S. 14-27.20(4) , because the legislature intended for the definitions in G.S. 14-27.20(4) to apply only within the respective article — Article 7B; and the offense of felonious child abuse by sexual act under G.S. 14-318.4(a2), as charged, was contained in a separate article — Article 39. State v. Wohlers, 272 N.C. App. 678, 847 S.E.2d 781, 2020 N.C. App. LEXIS 568 (2020).

Where defendant alleged that a forensic interviewer’s testimony was impermissible vouching of the minor victim’s credibility, there was no plain error as defendant could not show that the interviewer’s testimony had a probable impact on the jury’s finding of guilt because, besides the interviews and the trial testimony of the victim, defendant’s own written statement provided that he touched the victim’s private area; and the restrictive definition of “sexual act” in G.S. 14-27.20(4) , on which defendant relied for his argument that penetration was required to establish felony child abuse by sexual act, did not apply to that offense. State v. Wohlers, 272 N.C. App. 678, 847 S.E.2d 781, 2020 N.C. App. LEXIS 568 (2020).

Evidence was sufficient to convict defendant of four charges of statutory sex offense with a child under 13 by an adult because penetrating a victim’s labia constituted a sexual act; and, while there was no evidence defendant inserted his fingers into the child victim’s vagina, there was evidence that he penetrated her labia by rubbing his fingers in circles on her vulva. State v. Burns, 278 N.C. App. 718, 862 S.E.2d 431, 2021- NCCOA-404, 2021 N.C. App. LEXIS 423 (2021).

Evidence was sufficient to convict defendant of four charges of statutory sex offense with a child under 13 by an adult because penetrating a victim’s labia constituted a sexual act; and, while there was no evidence defendant inserted his fingers into the child victim’s vagina, there was evidence that he penetrated her labia by rubbing his fingers in circles on her vulva. State v. Burns, 278 N.C. App. 718, 862 S.E.2d 431, 2021- NCCOA-404, 2021 N.C. App. LEXIS 423 (2021).

The statutory definition of “sexual act” does not create disparate offenses; rather it enumerates the methods by which the single wrong of engaging in a sexual act with a child may be shown. Thus, the jury need not be instructed that it must be unanimous as to which sex act the defendant committed in order to convict him of first-degree sexual offense. State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794, 2000 N.C. App. LEXIS 1301 (2000).

A “sexual act” includes anal intercourse, which requires penetration of the anal opening by the penis. State v. Griffin, 319 N.C. 429 , 355 S.E.2d 474, 1987 N.C. LEXIS 2026 (1987).

Instruction on “Sexual Act” Sufficient. —

Trial court did not err in its jury instruction on one of the elements of second-degree statutory sex offense, namely, the requirement that defendant commit some “sexual act”; although technically incomplete, its instructions were sufficient to differentiate between the two offenses, so that the jury understood it was to consider the vaginal intercourse for purposes of the rape charge and the digital penetration for purposes of the sex offense charge. State v. Harris, 140 N.C. App. 208, 535 S.E.2d 614, 2000 N.C. App. LEXIS 1116 (2000).

An instruction setting forth the elements for first degree sexual offense that defines a sexual act as “any penetration, however slight, by an object into the genital opening of a person’s body,” comports with G.S. 14-27.1 , which defines a sexual act as “penetration, however slight, by any object into the genital or anal opening of another person’s body.” State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603, 2002 N.C. App. LEXIS 653 (2002).

When defendant was charged with first degree sexual offense with a child and a sex offense in a parental role, a disjunctive instruction allowing a jury to convict defendant if the jury found defendant committed, inter alia, analingus, when no such evidence was presented, was not plain error because, on the whole record, the instruction probably had no effect on the jury’s deliberations. State v. Martinez, 253 N.C. App. 574, 801 S.E.2d 356, 2017 N.C. App. LEXIS 384 (2017).

“Committed Upon.” —

Although the words “committed upon” the victim in G.S. 14-27.1(2) could extend to acts committed by someone other than the person accused of a rape, this phrase connotes an action committed upon the victim and not a voluntary act by the victim. Thus, the protection afforded by statute does not serve to negate the consent of a person who voluntarily and as a result of his or her own actions becomes intoxicated to a level short of unconsciousness or physical helplessness as defined by G.S. 14-27.1(3). State v. Haddock, 191 N.C. App. 474, 664 S.E.2d 339, 2008 N.C. App. LEXIS 1483 (2008).

Subdivision (4) of this section requires only slight penetration of the genital opening. State v. Watkins, 318 N.C. 498 , 349 S.E.2d 564, 1986 N.C. LEXIS 2671 (1986).

Penetration is not a necessary element of cunnilingus as the term is used in subdivision (4) of this section; rather, cunnilingus means stimulation by the tongue or lips of any part of a female’s genitalia, and the required stimulation is accomplished when there has been the slightest touching by the lips or tongue of another to any part of the female’s genitalia. State v. Ludlum, 303 N.C. 666 , 281 S.E.2d 159, 1981 N.C. LEXIS 1199 (1981).

Degradation to the person of a woman forced to submit or to a small girl incapable of consent is complete in the case of cunnilingus once the perpetrator’s lips or tongue have touched any part of her genitalia, whether or not any actual “penetration” of the genitalia takes place. State v. Ludlum, 303 N.C. 666 , 281 S.E.2d 159, 1981 N.C. LEXIS 1199 (1981).

Legislature intended by its use of the word cunnilingus in G.S. 14-27.1(4) to mean stimulation by the tongue or lips of any part of a woman’s genitalia; the legislative intent is borne out by the context in which the word is used in G.S. 14-27.1(4) and the overall statutory scheme, N.C. Gen. Stat. Art. 7A, Ch. 14, by which this kind of act is made punishable. State v. Morgan, 352 S.C. 359, 574 S.E.2d 203, 2002 S.C. App. LEXIS 201 (S.C. Ct. App. 2002).

Proof of Penetration. —

To prove a case of first-degree sexual offense, the State must prove there was “penetration, however slight, by any object into the genital or anal opening of another person’s body”; that the victim was a child under the age of 13 years old; and the defendant is at least 12 years old and is at least four years older than the victim. State v. Huntley, 104 N.C. App. 732, 411 S.E.2d 155, 1991 N.C. App. LEXIS 1108 (1991).

Circumstantial evidence of defendant’s penetration of child victim’s anus with a foreign object held sufficient. State v. Santiago, 148 N.C. App. 62, 557 S.E.2d 601, 2001 N.C. App. LEXIS 1281 (2001).

Where the evidence showed that defendant ordered the victim to drop her pants and underwear at gunpoint and asked her to spread open her labia so he could inspect her vagina and defendant then used the barrel of his gun to separate her labia and the victim testified that she felt the gun up against her private area right where her tampon would be entered, such evidence was sufficient to support a finding that a penetration occurred under G.S. 14-27.1(4) to support defendant’s conviction for first degree sexual offense, despite defendant changing his mind about pursuing any further contact with the victim upon discovering the tampon. State v. Bellamy, 172 N.C. App. 649, 617 S.E.2d 81, 2005 N.C. App. LEXIS 1793 (2005).

Although defendant argued the State failed to present sufficient evidence that he was the person that inserted an object into his ten-year-old daughter’s vagina, a trial court did not err in denying defendant’s motion to dismiss the charges of child abuse, G.S. 14-318.4(a2), because defendant’s teenage son testified he witnessed defendant moving his finger in the victim’s vagina, which satisfied the definition of “sexual act” under G.S. 14-27.1(4), and any inconsistencies in the victim’s testimony and the son’s testimony was for the jury to resolve. State v. Stokes, 216 N.C. App. 529, 718 S.E.2d 174, 2011 N.C. App. LEXIS 2287 (2011).

Evidence was sufficient to convict defendant of 10 counts of second-degree sexual offense, despite conflicting evidence as to penetration during vaginal intercourse, was as there was evidence of fellatio and digital penetration, and neither “intercourse” nor “penetration” is an element of second-degree sexual offense, State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Denial of defendant’s motion to dismiss a statutory rape charge was appropriate because reasonable jurors could have concluded that the State of North Carolina presented sufficient evidence of sexual penetration by the minor victim’s testimony that defendant was able to touch the victim between the victim’s labia before giving up after the victim repeatedly pushed defendant away. State v. Corbett, 264 N.C. App. 93, 824 S.E.2d 875, 2019 N.C. App. LEXIS 115 (2019).

Although young victim did not use the word “vagina” or “genital area” when describing the sexual assault perpetrated upon her, where she did employ words commonly used by females of tender years to describe those areas of their bodies, of which they are just becoming aware, such evidence was ample to support the verdict of guilty of first degree sexual offense. State v. Rogers, 322 N.C. 102 , 366 S.E.2d 474, 1988 N.C. LEXIS 125 (1988).

Fellatio may be accomplished by mere touching of the male sex organ to the lips or mouth of another. State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434, 1986 N.C. App. LEXIS 2240 , writ denied, 317 N.C. 336 , 346 S.E.2d 503, 1986 N.C. LEXIS 2322 (1986).

Fellatio is defined as “contact between the mouth of one party and the sex organs of another.” State v. Johnson, 105 N.C. App. 390, 413 S.E.2d 562, 1992 N.C. App. LEXIS 226 (1992).

Under the corpus delicti rule, statements defendant made to a victim’s brother immediately after defendant confessed to a detective that the victim attempted to perform fellatio, opportunity evidence, and defendant’s testimony that he felt something touch his penis did not constitute the substantial independent evidence that was required to establish the sexual act element of first-degree sexual offense under G.S. 14-27.1(4) and G.S. 14-27.4 because the victim testified that a sexual act did not occur, the statements made to the victim’s brother were not independent of the extrajudicial confession, and the extrajudicial confession and defendant’s testimony did not allow a jury to find beyond a reasonable doubt that the victim’s mouth made contact with defendant’s penis. State v. Smith, 362 N.C. 583 , 669 S.E.2d 299, 2008 N.C. LEXIS 972 (2008).

Child’s Testimony Held Insufficient to Attempted Fellatio. —

Testimony of ten-year-old victim of sexual abuse that she gritted her teeth when defendant began to force her to commit fellatio on January 7 and that she gritted her teeth while defendant masturbated over her on January 9, were insufficient to convict defendant of attempt to commit fellatio on second occasion. There must be some evidence that a touching, however slight, occurred, and victim’s testimony was not, as a matter of law, sufficient to show that defendant’s penis touched her lips or mouth on January 9. State v. Murphy, 100 N.C. App. 33, 394 S.E.2d 300, 1990 N.C. App. LEXIS 811 (1990).

Touching the victim’s breast and genitals demonstrated intent to commit a sexual act against the victim without her consent sufficient to support the charge of attempted second degree sex offense. State v. Buff, 170 N.C. App. 374, 612 S.E.2d 366, 2005 N.C. App. LEXIS 998 (2005).

Anal intercourse requires penetration of the anal opening of the victim by the penis of the male. State v. DeLeonardo, 315 N.C. 762 , 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

Variance Between Indictment and Proof. —

Where the indictment alleged that defendant engaged “in a sexual act, to wit: performing oral sex” on the child involved, but the State’s evidence showed only that the defendant placed his finger in victim’s vagina, which by definition is a separate sex offense under the terms of subdivision (4) of this section, the court erred in denying defendant’s motion for a directed verdict at the end of all the evidence, since the defendant was convicted of a crime he had not been charged with. State v. Loudner, 77 N.C. App. 453, 335 S.E.2d 78, 1985 N.C. App. LEXIS 4106 (1985).

A “Sexual Act” Includes Anal Intercourse. —

Defendant’s conviction for sexual assault was affirmed because there was substantial evidence that defendant engaged in a sexual act of anal penetration with the victim, against the victim’s will, and by employing a knife as a dangerous or deadly weapon. While the elderly victim gave conflicting testimony as to whether defendant penetrated her anally, a report from a rape kit concluded that semen was present on the swab from the victim’s rectum; furthermore, an emergency room doctor testified that it was possible for a person to be penetrated anally without showing signs of trauma and a victim might not recall anal penetration due to the fear experienced during such an assault. State v. Cartwright, 177 N.C. App. 531, 629 S.E.2d 318, 2006 N.C. App. LEXIS 1076 (2006).

“Sexual Act” Precluding Alimony. —

Even though a husband admitted to marital misconduct, in the form of breaking his wife’s arm, and physically and verbally abusing the parties’ minor children, a trial court properly determined the wife was not entitled to alimony under G.S. 50-16.3 A(a) because the wife had engaged in uncondoned illicit sexual behavior with another man, G.S. 50-16.1 A(3)(a), including sexual intercourse or sexual acts, as defined in G.S. 14-27.1(4); the trial court’s finding of fact that the other man’s finger penetrated the wife’s vagina was a finding of a “sexual act.” Romulus v. Romulus, 215 N.C. App. 495, 715 S.E.2d 308, 2011 N.C. App. LEXIS 2051 (2011).

“Sexual Contact.” —

State was not required to show that the conduct of defendant, a massage therapist, in touching the two female clients of the salon where defendant worked resulted in penetration, as the crime of sexual battery involved sexual contact, as defined by G.S. 14-27.1(5), and through the use of force and against the will of the two clients in violation of G.S. 14-27.5 A(a)(1). The State presented sufficient evidence to show that defendant touched, inter alia, the breasts and buttocks of the two female clients and that the female clients were petrified as defendant did so because they did not know what defendant planned to do next. State v. Viera, 189 N.C. App. 514, 658 S.E.2d 529, 2008 N.C. App. LEXIS 608 (2008).

Defendant juvenile’s adjudication of delinquency for sexual battery under G.S. 14-27.5 A was not supported by sufficient evidence and was vacated under N.C. R. App. P. 2 where: (1) the victim testified that defendant touched and grabbed her and made a gesture of a squeezing motion; (2) defendant avowed that he accidentally hit her buttocks, but did not squeeze them; (3) while there was sufficient evidence of sexual contact under G.S. 14-27.1(5), there was insufficient evidence of a sexual purpose; (4) defendant’s alleged request to hit the victim, which she took to mean have sex with her, was made months before the contact; and (5) there was no evidence that the statement was connected with the contact. In re K.C., 226 N.C. App. 452, 742 S.E.2d 239, 2013 N.C. App. LEXIS 385 (2013).

§ 14-27.21. First-degree forcible rape.

  1. A person is guilty of first-degree forcible rape if the person engages in vaginal intercourse with another person by force and against the will of the other person, and does any of the following:
    1. Uses, threatens to use, or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon.
    2. Inflicts serious personal injury upon the victim or another person.
    3. The person commits the offense aided and abetted by one or more other persons.
  2. Any person who commits an offense defined in this section is guilty of a Class B1 felony.
  3. Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.

History. 1979, c. 682, s. 1; 1979, 2nd Sess., c. 1316, s. 4; 1981, c. 63; c. 106, ss. 1, 2; c. 179, s. 14; 1983, c. 175, ss. 4, 10; c. 720, s. 4; 1994, Ex. Sess., c. 22, s. 2; 2004-128, s. 7; 2015-181, s. 3(a), (b); 2017-30, s. 1.

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

As to essentials of bill of indictment for rape, see G.S. 15-144.1 .

As to exclusion of bystanders during trial for rape or other sex offense, see G.S. 15-166 .

As to venue for trial of sex offenses where victim was transported, see G.S. 15A-136 .

As to office of coordinator of services for victims of sexual assault, see G.S. 143B-394.1 et seq.

Editor’s Note.

This section was formerly codified as G.S. 14-27.2 . It was recodified as G.S. 14-27.21 by Session Laws 2015-181, s. 3(a), effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 3(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2017-30, s. 3, made the substitution of “Uses, threatens to use, or displays” for “Employs or displays” at the beginning of subdivision (a)(1), by Session Laws 2017-30, s. 1, effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2004-128, s. 7, effective December 1, 2004, and applicable to offenses committed on or after that date, added subsection (c).

Session Laws 2015-181, s. 3(b), effective December 1, 2015, inserted “forcible” in the section heading; in subsection (a), in the introductory paragraph, substituted “first-degree forcible rape” for “rape in the first-degree,” added “with another person by force and against the will of the other person” which had been included in former subdivision (2), and added “and does any of the following” at the end of the paragraph, deleted former subdivision (1), which read: “With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older that the victim,” redesignated former subdivision (2)a, b and c as subdivisions (1), (2) and (3), and made related stylistic changes. For applicability, see editor’s note.

Session Laws 2017-30, s. 1, substituted “Uses, threatens to use, or displays” for “Employs or displays” at the beginning of subdivision (a)(1). For effective date and applicability, see editor’s note.

Legal Periodicals.

For note on United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), and its impact upon State capital punishment legislation, see 47 N.C.L. Rev. 421 (1969).

For comment on constitutional restrictions on the imposition of capital punishment, see 5 Wake Forest Intra. L. Rev. 183 (1969).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For comment on capital punishment and evolving standards of decency, see 16 Wake Forest L. Rev. 737 (1980).

For an article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For note discussing the constitutionality of North Carolina’s Rape-Shield Law, see 17 Wake Forest L. Rev. 781 (1981).

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note discussing “serious personal injury” in rapes and sexual offenses in light of State v. Boone, 307 N.C. 198 , 297 S.E.2d 585 (1982), see 19 Wake Forest L. Rev. 881 (1983).

For comment, “The Use of Rape Trauma Syndrome as Evidence in a Rape Trial: Valid or Invalid?,” see 21 Wake Forest L. Rev. 93 (1985).

For note, “State v. Smith: Facilitating the Admissibility of Hearsay Statements in Child Sexual Abuse Cases,” see 64 N.C.L. Rev. 1352 (1986).

For note, “State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims,” see 64 N.C.L. Rev. 1364 (1986).

For article, “Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated,” see 66 N.C.L. Rev. 283 (1988).

For note, “State v. Strickland: Evening the Odds in Rape Trials! North Carolina Allows Expert Testimony on Post Traumatic Stress Disorder to Disprove Victim Consent,” see 69 N.C.L. Rev. 1624 (1991).

For note entitled, “Michigan v. Lucas: Failure to Define the State Interest in Rape Shield Legislation,” see 70 N.C.L. Rev. 1592 (1992).

For comment, “Old Wine in New Bottles: The ‘Marital’ Rape Allowance,” see 72 N.C.L. Rev. 261 (1993).

For note, “Serious Personal Injury Requirement for Rape Is Met by Mental Injury Alone — State v. Baker,” see 21 N.C. Cent. L.J. 368 (1995).

For comment, “The Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

For article, “Poor Whites, Benevolent Masters, and the Ideologies of Slavery: The Local Trial of a Slave Accused of Rape,” see 85 N.C.L. Rev. 489 (2007).

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Many of the annotations under this section are from cases decided under former statutory provisions.

Constitutionality of Former G.S. 14-21 . —

See State v. Wilson, 296 N.C. 298 , 250 S.E.2d 621, 1979 N.C. LEXIS 1149 (1979).

Double Jeopardy Prohibitions Held Not Violated. —

Where defendant was convicted of first-degree rape under subdivision (a)(1) of this section and taking indecent liberties under G.S. 14-202.1 , these convictions did not violate the double jeopardy prohibitions under either our State or the federal Constitution. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

It is not double jeopardy for a defendant to be punished for convictions of rape, incest, and taking indecent liberties with a minor when all the convictions were based on one incident. State v. Fletcher, 322 N.C. 415 , 368 S.E.2d 633, 1988 N.C. LEXIS 370 (1988).

Elements Required. —

In order to prove first-degree rape, it is sufficient that the State demonstrate that the defendant engaged in vaginal intercourse with another person by force and against the will of the other person and either (1) employed or displayed a dangerous weapon or (2) inflicted serious personal injury upon the victim or another person. State v. Worsley, 336 N.C. 268 , 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

History of Offense. —

See State v. Dick, 6 N.C. 388 , 1818 N.C. LEXIS 38 (1818); State v. Jesse, 20 N.C. 95 , 1838 N.C. LEXIS 69 (1838); State v. Johnston, 76 N.C. 209 , 1877 N.C. LEXIS 209 (1877).

Rape by force and against the victim’s will is an act of violence by any definition, and it is a crime of violence as a matter of law. State v. Artis, 325 N.C. 278 , 384 S.E.2d 470 (1989) sentence vacated and remanded for further consideration at 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990). in light of State v. Grant, 57 N.C. App. 589, 291 S.E.2d 913, 1982 N.C. App. LEXIS 2688 .

The language of this section, “serious personal injury,” and the legislative context in which it arose, differs substantially from the language of G.S. 14-32 , “serious injury.” State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Indians. —

This section does not apply where the alleged acts were those of one Indian against another Indian within Indian country. United States v. Welch, 822 F.2d 460, 1987 U.S. App. LEXIS 8478 (4th Cir. 1987).

Generally, rape is not a continuous offense, but each act of intercourse constitutes a distinct and separate offense. State v. Small, 31 N.C. App. 556, 230 S.E.2d 425, 1976 N.C. App. LEXIS 2059 (1976), cert. denied, 291 N.C. 715 , 232 S.E.2d 207, 1977 N.C. LEXIS 1265 (1977).

Separate Acts of Intercourse as Separate Offenses. —

Where after defendant completed intercourse with first victim, he was not successful in his attempts with second victim, and he then completed the act with the first victim for a second time, each of his acts of forcible intercourse with the first victim was a separate rape rather than a continuing offense. State v. Dudley, 319 N.C. 656 , 356 S.E.2d 361, 1987 N.C. LEXIS 2078 (1987).

Although defendant’s husband did not fully penetrate the 11-year-old victim until his third attempt, each separate act of intercourse was complete and sufficient to sustain an indictment for first degree rape, and no double jeopardy occurred when the defendant/wife was convicted as an aider and abettor for two counts of attempted rape and one count of rape. State v. Owen, 133 N.C. App. 543, 516 S.E.2d 159, 1999 N.C. App. LEXIS 620 (1999).

Intoxication is not a defense to the crime of rape. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Imposition of a mandatory life sentence for first-degree rape is not constitutionally disproportionate and is not cruel and unusual punishment as prohibited by U.S. Const., Amend. VIII and N.C. Const., Art. I, § 27. State v. Peek, 313 N.C. 266 , 328 S.E.2d 249, 1985 N.C. LEXIS 1531 (1985).

Provision in this section for a mandatory life sentence for a conviction of rape in the first degree is not unconstitutional under U.S. Const., Amends. VIII and XIV. State v. McClintick, 315 N.C. 649 , 340 S.E.2d 41, 1986 N.C. LEXIS 1884 (1986).

Imposition of sentences of life imprisonment for first degree rape and first degree sexual offense does not violate the prohibition against cruel and unusual punishments. State v. Spaugh, 321 N.C. 550 , 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Sentencing Factors. —

Where a defendant has been charged with rape in the first degree under subdivision (a)(2)a of this section but has pled guilty to rape in the second degree under subdivision (a)(2) of G.S. 14-27.3 , if the sentencing judge concludes by a preponderance of the evidence that the defendant had used a gun during the rape, this would be a factor that must be considered in deciding whether to sentence the defendant beyond the presumptive term for the admitted offense. State v. Melton, 307 N.C. 370 , 298 S.E.2d 673, 1983 N.C. LEXIS 1085 (1983).

Due to the General Assembly giving children under 13 greater protection from first-degree rape than victims over 13, the rape of a victim under 13 by a defendant at least 12 and at least four years older than the victim makes the defendant more blameworthy, because rape victims under 13 are in fact more vulnerable to the crime of rape than they would otherwise be if older than 12. This does not, however, allow the age of the victim to be considered in sentencing for first-degree rape, because (1) age is an element of first-degree rape under subdivision (1) of subsection (a) of this section and as such cannot be considered an aggravating factor upon sentencing for that crime under G.S. 15A-1340.4(a)(1)(p), and (2) first-degree rape is a Class B felony which carries a mandatory life sentence without consideration of aggravating and mitigating factors, under G.S. 14-1.1(a)(2). State v. Vanstory, 84 N.C. App. 535, 353 S.E.2d 236, 1987 N.C. App. LEXIS 2528 (1987), disapproved, State v. Farlow, 336 N.C. 534 , 444 S.E.2d 913, 1994 N.C. LEXIS 291 (1994).

Unanimity of Verdict. —

Defendant’s convictions for first-degree rape of a child under the age of 13, in violation of G.S. 14-27.2(a)(1), were affirmed because the trial court did not violate defendant’s right to a unanimous verdict based upon generic testimony, or evidence of more incidents than there were criminal charges. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Right to Unanimous Jury Verdict not Violated. —

Defendant was not deprived of defendant’s right to a unanimous jury verdict as to charges of first-degree statutory sexual offense under G.S. 14-27.2 , statutory sexual offense against a person who was 13, 14, or 15 years old under G.S. 14-27.4(a)(1), taking indecent liberties with a child under G.S. 14-202.1 , second-degree forcible sexual offense under G.S 14-27.5, and assault on a female by a male at least 18 years of age under G.S. 14-33(c)(2) as: (1) the indictments were valid absent the inclusion of the specific acts that constituted the alleged sexual offenses; (2) the jury instructions and verdict sheets for each offense specifically identified each case by its number, listed the date on which each offense was alleged to have occurred, and listed the specific acts that were to serve as the underlying basis for each offense; (3) the jury was instructed specifically in each case in which defendant was charged with multiple counts of the same offense involving the same victim; (4) there was nothing in the record to indicate that the jury was confused by either the trial court’s instructions or the verdict sheets; and (5) the jury was polled following the announcement of the verdicts. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Election by State. —

By unequivocally arraigning defendant on second-degree rape and by failing thereafter to give any notice whatsoever, prior to the jury being impaneled and jeopardy attaching, of an intent instead to pursue a conviction for first-degree rape arguably supported by the short-form indictment, the State made a binding election not to pursue the greater degree of the offense, and such election was tantamount to an acquittal of first-degree rape. State v. Jones, 317 N.C. 487 , 346 S.E.2d 657, 1986 N.C. LEXIS 2420 (1986).

Assault on a female is not a lesser included offense of rape, because assault on a female contains elements not present in the greater offense of rape. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Multiple Short-Form Indictments Did Not Create a Danger of Ununanimous Verdicts. —

Appellate court erred in reversing defendant’s convictions of first-degree statutory rape, G.S. 14-27.2 , and taking indecent liberties with a minor, G.S. 14-202.1(a)(1), as defendant was properly charged by short-form indictments on all the charges as authorized by G.S. 15-144.2(a), because there was no danger of a nonunanimous verdict resulting from the multiple indictments in violation of N.C. Const. Art. 1, § 24, and G.S. 15A-1237(b), as even if some jurors disagreed on the kinds of sexual misconduct committed, the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of any immoral, improper, or indecent liberties as required by G.S. 14-202.1(a)(1), and because defendant was indicted on five counts of statutory rape, the victim testified to five specific incidents of statutory rape, and five verdicts of guilty were returned. State v. Lawrence, 360 N.C. 368 , 627 S.E.2d 609, 2006 N.C. LEXIS 30 (2006).

Instruction on Parole Ineligibility in Capital Case. —

Where a State prisoner, who was convicted of first-degree murder, first-degree rape, kidnapping, armed robbery, and the burning of personal property, in violation of G.S. 14-17 , 14-27.2(a)(2), 14-39, 14-87, and 14-66, argued that the sentencing court erred by failing to provide a parole ineligibility instruction, the prisoner, who was sentenced to death for the murder conviction, was not entitled to federal habeas corpus relief because the prisoner would have been eligible for parole under former G.S. 15A-1371(a1) if the jury had recommended life imprisonment; thus, because the prisoner was eligible for parole as a matter of law, the prisoner was not entitled to a parole ineligibility instruction. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

Error In Ordering Lifetime Satellite-Based Monitoring. —

Trial court erred in finding that lifetime satellite-based monitoring was required for defendant and in failing to order that a risk assessment of defendant be performed pursuant to G.S. 14-208.40 A(d) prior to ordering him to enroll in a lifetime satellite-based monitoring program upon release from prison because defendant was convicted for first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1, not attempted rape of a child, pursuant to G.S. 14-27.2 A as found by the trial court; the trial court did not find that defendant was a sexually violent predator or that he was a recidivist, and it found that the offense was not an aggravated offense. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

Satellite-Based Monitoring Proper. —

Imposition of lifetime satellite-based monitoring was appropriate because defendant was convicted of first-degree rape, which required vaginal penetration; without engaging in an improper examination of the facts giving rise to the crimes for which defendant was convicted, the trial court could have ascertained that both vaginal penetration and force were involved. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Prosecutorial Comments in Closing Argument. —

Defendant’s convictions for first-degree rape of a child under the age of 13, in violation of G.S. 14-27.2(a)(1), were affirmed because the trial court did not err by failing to intervene ex mero motu to limit certain remarks made by the State in its closing argument; in the remarks, the prosecutor referred to defendant as “vile,” “amoral,” “wicked,” and “evil.” State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

II.Indictment

In enacting subsection (a), the General Assembly has provided for a “shortened form” of the rape indictment which explicitly eliminates the requirement that the indictment contain allegations of every element of the offense. State v. Corbett, 307 N.C. 169 , 297 S.E.2d 553, 1982 N.C. LEXIS 1669 (1982).

Construction With G.S. 15-144.1 . —

In a rape prosecution, the fact that a lesser charge of assault on a female would not be available when a defendant asserts that the intercourse was consensual does not nullify the reference in G.S. 15-144.1 to assault on a female. A jury could find a defendant not guilty of rape under G.S. 14-27.2 or G.S. 14-27.3 based on evidence that defendant’s penis had not vaginally penetrated the victim. State v. Thomas, 196 N.C. App. 523, 676 S.E.2d 56, 2009 N.C. App. LEXIS 520 (2009).

Allegation of Intent. —

Intent is not an element of the offense of raping a female child under the age of 12 years (now 12 years or less), and a motion to quash an indictment therefor on the ground that it failed to allege “intent” is properly denied. State v. Gibson, 221 N.C. 252 , 20 S.E.2d 51, 1942 N.C. LEXIS 448 (1942).

Indictment Was Valid. —

Indictment charging defendant with statutory sexual offense under G.S. 14-27.2 , statutory sexual offense of a person who was 13, 14, or 15 years of age under G.S. 14-27.7 A, taking indecent liberties with a child under G.S. 14-202.1 , and forcible sexual offense under G.S. 14-27.5 that did not list the specific underlying sexual acts was valid, as the jury was instructed on the specific sexual acts that were to serve as the underlying act for each charged offense; when a short form indictment properly alleged the essential elements of the offense, it did not have to allege every matter required to be proved on the trial under G.S. 15-144.2(a), and indictments charging indecent liberties with a child or a sexual offense were valid even when they did not contain a specific allegation regarding which specific sexual act was committed. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Allegation of “By Force and Against The Will”. —

An indictment for rape must use the words “by force” or their equivalent in describing the manner in which the assault was accomplished. State v. Benton, 226 N.C. 745 , 40 S.E.2d 617, 1946 N.C. LEXIS 366 (1946).

The absence of both “forcibly” and “against her will” in the indictment is fatal, but “forcibly” can be supplied by any equivalent word. It is not supplied by the use of the word “ravish,” but is sufficiently charged by the words “feloniously and against her will.” State v. Johnson, 226 N.C. 266 , 37 S.E.2d 678, 1946 N.C. LEXIS 427 (1946).

Bill of indictment charging the rape of a “child under the age of 13 years,” although a valid indictment for a rape occurring after Oct. 1, 1983, did not allege a criminal offense for a rape allegedly occurring before the amendment to the statute, effective Oct. 1, 1983, substituting “a child under the age of 13 years” for “a child of the age of 12 years or less.” Therefore, the trial court did not have subject matter jurisdiction and the judgment entered would be arrested. State v. Howard, 317 N.C. 140 , 343 S.E.2d 538, 1986 N.C. LEXIS 2390 (1986) (holding, however, that the State could seek an indictment of defendant based upon the statute in effect on Feb. 15, 1983) .

Indictment charging defendant with first degree rape was fatally defective and should have been quashed, where it charged defendant, pursuant to this section, with the rape of “a child under the age of 13 years” during the “academic school year of 1981.” This section was amended effective October 1, 1983, by substituting “a child under the age of 13 years” for “a child of the age of 12 years or less.” Thus, at the time of the alleged offense, the prior statute controlled. State v. Trent, 320 N.C. 610 , 359 S.E.2d 463, 1987 N.C. LEXIS 2326 (1987).

Failure of Indictment to Allege Date of Crime. —

Because time did not constitute an element of first-degree rape, time was not of the essence of the crime; accordingly, in a case where the failure of the indictments to allege any date on which the offenses occurred would not be grounds for dismissal of the charges, the designation of a two-year period was not grounds for dismissal. State v. McKinney, 110 N.C. App. 365, 430 S.E.2d 300, 1993 N.C. App. LEXIS 502 , cert. denied, 334 N.C. 437 , 433 S.E.2d 182, 1993 N.C. LEXIS 363 (1993).

Violation of Subdivision (a)(2)c Not Alleged. —

Juvenile petition alleging that juvenile who was under the age of 12 at the time of the offense “did unlawfully willfully and feloniously carnally know and abuse . . . a child 6 years old and thus of the age of 12 years or less in violation of . . . G.S. 14-27.2 ” was insufficient to allege a violation of subdivision (a)(2)c of this section. State v. Drummond, 81 N.C. App. 518, 344 S.E.2d 328, 1986 N.C. App. LEXIS 2322 (1986).

Separate Indictment Required As to Earlier Incidents. —

When a defendant charged with rape admits that he had sexual intercourse with the prosecutrix, neither the State nor the defendant is entitled to have the jury consider a lesser included offense on the basis of incidents which might have preceded the sexual intercourse because the bill of indictment charging only rape does not encompass such earlier incidents but is directed only to the sexual intercourse itself; thus, if the State contends defendant committed some other crime, such as assault, prior to the rape itself, it should file a separate indictment or add a count to the rape indictment charging this other crime. State v. Edmondson, 302 N.C. 169 , 273 S.E.2d 659, 1981 N.C. LEXIS 1028 (1981).

Statutory Rape Not Lesser Included Offense of Incest. —

Trial court did not err in sentencing defendant for statutory rape and incest because statutory rape was not a lesser included offense of incest; the elements of statutory rape are not all included in the elements of incest, since statutory rape requires a showing of the victim’s and the defendant’s age, while the elements of incest can be proven without any reference to age, and incest requires a familial relationship that is not required for one to be convicted of statutory rape. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Effect of Verdict Where Indictment Insufficient. —

Where an indictment is insufficient to charge first-degree rape, but is sufficient to charge second-degree rape, and the evidence is clearly sufficient to support a guilty verdict for that offense, the verdict must be regarded as a verdict of guilty of second-degree rape, and the defendant may not be sentenced for first-degree rape. The case must be remanded for entry of a verdict of guilty of second-degree rape and for a proper judgment on that verdict. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

Failure to Submit Crime as Charged in Indictment. —

Where defendant was charged with forcible first-degree rape, the failure of the trial court to submit the case to the jury pursuant to such crime as charged in the indictment amounted to a dismissal of that charge and all lesser included offenses. Therefore, by this failure the trial judge dismissed the first and second-degree rape charges alleged in the indictment. State v. Williams, 318 N.C. 624 , 350 S.E.2d 353, 1986 N.C. LEXIS 2739 (1986).

Where the jury was instructed and reached its verdict on the basis of the elements set out in subdivision (a)(1) of this section, whereas defendant had been charged with rape on the basis of the elements set out in subdivision (a)(2) and in G.S. 14-27.3(a)(1), the indictment under which defendant was brought to trial could not be considered to have been a valid basis on which to rest the judgment. State v. Williams, 318 N.C. 624 , 350 S.E.2d 353, 1986 N.C. LEXIS 2739 (1986).

III.Other Crimes

Separate Crimes Arising Out of Same Events. —

Where a burglar, after breaking and entering, proceeds to rape someone inside the dwelling, he can be convicted of both burglary and rape. State v. Brady, 299 N.C. 547 , 264 S.E.2d 66, 1980 N.C. LEXIS 986 (1980).

Defendant’s conviction of felonious larceny, armed robbery, burglary, and rape, all of which arose out of the same series of events, did not place defendant in double jeopardy, since the four offenses were legally separate and distinct crimes, no one of which was a lesser included offense of the other; each clearly required the proof of at least one essential element not embodied in any of the other three offenses at issue; and the four felonies were factually distinct and independent crimes in this case. State v. Revelle, 301 N.C. 153 , 270 S.E.2d 476, 1980 N.C. LEXIS 1155 (1980).

Defendants’ convictions of both first-degree kidnapping and rape against one victim and of first-degree kidnapping and both first-degree rape and first-degree sex offense against the other could not all stand, even though the combination of convictions, because of the manner in which they were consolidated for judgment, resulted in no additional punishment attributable to any of the kidnapping cases, where it could not be said that the jury’s verdict of first-degree kidnapping was based upon a sexual assault other than the ones forming the basis for the other convictions. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

The holding in State v. Price, 313 N.C. 297 , 327 S.E.2d 863 (1985), that no principle of double jeopardy was violated by entry of judgments that the defendant committed both rape in the first degree and kidnapping in the first degree was overruled. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

Defendant may not be separately punished for the offenses of first-degree rape and first-degree kidnapping where the rape is the sexual assault used to elevate kidnapping to the first degree. State v. Mason, 317 N.C. 283 , 345 S.E.2d 195, 1986 N.C. LEXIS 2775 (1986).

Although some restraint is inherent in the crime of forced rape, the restraint, confinement, and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape. State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

Asportation of a rape victim is sufficient to support a charge of kidnapping if the defendant could have perpetuated the offense when he first threatened the victim, and instead, took the victim to a more secluded area to prevent others from witnessing or hindering the rape; such asportation is separate and independent of the rape, is removal for the purpose of facilitating the felony of rape, and is, therefore, kidnapping pursuant to G.S. 14-39 . State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

Convictions of first-degree kidnapping and first-degree rape could not both stand, where there was evidence of an unindicted sexual offense and of a first degree sexual offense for which defendant was indicted but not convicted, as well as evidence of the rape for which defendant was both indicted and convicted, but the trial court did not specify in its instructions to the jury in the kidnapping case which of these sexual assaults the jury might use to satisfy the “sexual assault” element of the first degree kidnapping. State v. Freeman, 319 N.C. 609 , 356 S.E.2d 765, 1987 N.C. LEXIS 2083 (1987).

A criminal defendant cannot be convicted of both first degree kidnapping and sexual assault when the latter was used to prove an element of the kidnapping, and thus where the jury may not have understood that it could only convict for first degree kidnapping by using the unindicted sexual assault, rather than the attempted rape of which defendant was convicted to supply the sexual assault element of the crime of first degree kidnapping, defendant’s convictions of both first degree kidnapping and attempted first degree rape could not stand. State v. Fisher, 321 N.C. 19 , 361 S.E.2d 551, 1987 N.C. LEXIS 2496 (1987).

Vaginal intercourse is not an element of taking indecent liberties with a minor, and committing the act for the purpose of arousing or gratifying sexual desire is not an element of rape. Thus defendant was not placed in double jeopardy by being convicted of both crimes. State v. Rhodes, 321 N.C. 102 , 361 S.E.2d 578, 1987 N.C. LEXIS 2489 (1987).

A defendant cannot be convicted of both first-degree rape and first-degree kidnapping when the rape is used to prove an element of the kidnapping charge. State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214, 1989 N.C. App. LEXIS 1027 (1989), cert. denied, dismissed, 327 N.C. 485 , 397 S.E.2d 227, 1990 N.C. LEXIS 851 (1990).

Trial court properly allowed the jury to review the evidence of defendant’s commission of rape and sexual offense under both a theory of statutory rape/sexual offense and forcible rape/sexual offense, however upon the jury’s verdicts of guilty under both theories, the judgment had to be arrested on one count of first-degree rape and on one count of first-degree sexual offense; separate convictions for these offenses, even though consolidated for a single judgment, had potentially severe adverse collateral consequences. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Conspiracy. —

Where evidence shown that victim told a co-defendant that she did not want to have sex with him, defendant purportedly laughed when the victim asked to be taken back to where they had found her, and defendant engaged in sex acts with victim, the evidence taken was adequate to support the inference that defendant made an agreement with the co-defendant to commit rape in the first degree and the trial court did not err in submitting the charge of conspiracy to commit first-degree rape to the jury. State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

First- and Second-Degree Rape Distinguished. —

The sole distinction between the crimes of first and second-degree rape is the element of the use of a deadly weapon or aiding and abetting. If serious bodily injury is inflicted, the crime is also first-degree rape. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

One difference between rape in the first degree under subdivision (a)(2)a of this section and rape in the second degree under G.S. 14-27.3 is that in the former but not in the latter a deadly weapon must have been used to effectuate the rape. State v. Corbett, 309 N.C. 382 , 307 S.E.2d 139, 1983 N.C. LEXIS 1390 (1983).

A verdict of guilty of rape in the first degree necessarily includes the jury’s determination that the defendant is guilty of each element of rape in the second degree. State v. Perry, 291 N.C. 586 , 231 S.E.2d 262, 1977 N.C. LEXIS 1223 (1977).

Assault on Child Under 12 Not Lesser Included Offense. —

Vaginal intercourse with a child under 12 is not itself an assault, since the crime of assault has essential elements which are not also essential elements of statutory rape. For example, assault generally requires proof of state of mind of either the defendant or the victim — the defendant’s intent to do immediate bodily harm or the victim’s reasonable apprehension of such harm. The statutory rape law, subdivision (a)(1) of this section, does not contain a state of mind element, however. Assault on a child under 12, former G.S. 14-33(b)(3), was not, therefore, a lesser included offense of first-degree rape of a child under 12 (now 13), under subdivision (a)(1) of this section. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

The offense of assaulting a child under the age of 12, former G.S. 14-33(b)(3), was not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less (now under the age of 13 years), under subdivision (a)(1) of this section. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

One was guilty of a misdemeanor assault under former G.S. 14-33(b)(3) if he assaulted a child under the age of 12 years. This crime had an essential element which was not also an essential element of the crime of first-degree rape of a child of the age of 12 years or less (now under the age of 13 years). Subdivision (a)(1) of this section provides that a person is guilty of first-degree rape only if he “engages in vaginal intercourse” with the young victim; no concomitant assault is required. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

Nor Is Assault on Female by Male over 18. —

The offense of assault on a female by a male over the age of 18, former G.S. 14-33(b)(2), was not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less (now under the age of 13 years), under subdivision (a)(1) of this section. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

Nor Is Taking Indecent Liberties with Child Under 16. —

The offense of taking indecent liberties with a child under G.S. 14-202.1 is not a lesser included offense of statutory rape under subdivision (a)(1) of this section because the age elements are different and, while sexual purpose may be inherent in an act of forcible vaginal intercourse, it is not required to be proved in order to convict a defendant of rape. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982) (overruling) State v. Shaw, 293 N.C. 616 , 239 S.E.2d 439, 1977 N.C. LEXIS 1011 (1977).

Arrest of Judgment Proper. —

Trial court did not err by electing to arrest judgment on a felonious child abuse with a deadly weapon conviction as only one felony was necessary to support a felony murder conviction, and the jury found that five felonies could support a felony murder charge including forcible rape, statutory rape, forcible sex offense, statutory sex offense, and felony child abuse with a deadly weapon. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Since the indictment for first degree rape did not include the purpose element included in the sexual battery statute, it was insufficient to confer subject matter jurisdiction, and the trial court lacked jurisdiction to enter a judgment of defendant’s guilt on that offense; thus, the court had to arrest judgment. State v. Kelso, 187 N.C. App. 718, 654 S.E.2d 28, 2007 N.C. App. LEXIS 2523 (2007).

IV.Victim under Age

Proof of Force or Infliction of Injury Not Essential. —

The use of deadly force or infliction of serious bodily injury is not an essential element of the crime of rape of a female under the age of 12 (now 13 years). State v. Cobb, 295 N.C. 1 , 243 S.E.2d 759, 1978 N.C. LEXIS 942 (1978).

Neither force nor intent is an element of rape of a female child under the age of 12 years (now 13 years). State v. Jones, 249 N.C. 134 , 105 S.E.2d 513, 1958 N.C. LEXIS 442 (1958); State v. Strickland, 254 N.C. 658 , 119 S.E.2d 781, 1961 N.C. LEXIS 516 (1961); State v. Murry, 277 N.C. 197 , 176 S.E.2d 738, 1970 N.C. LEXIS 565 (1970).

Nor Proof of Assault. —

The lack of an assault requirement under the statutory rape law, subdivision (a)(1) of this section, is understandable given the purpose of the statute. Unlike the provision of the first-degree rape statute that applies if the victim is an adult, subdivision (a)(2) of this section, the forbidden conduct under the statutory rape provision, subdivision (a)(1) of this section, is the act of intercourse itself; any force used in the act, any injury inflicted in the course of the act, or the apparent lack of consent of the child are not essential elements. This is so because the statutory rape law, subdivision (a)(1) of this section, was designed to protect children under 12 (now 13) from sexual acts. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

There is no requirement that the rape of a child be assaultive in character. State v. Zuniga, 320 N.C. 233 , 357 S.E.2d 898, 1987 N.C. LEXIS 2176 , cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).

Use of Force Presumed. —

Force is conclusively presumed in the case of carnal knowledge of a female under the age of 10 (now 13 years). State v. Dancy, 83 N.C. 608 , 1880 N.C. LEXIS 130 (1880); State v. Crawford, 260 N.C. 548 , 133 S.E.2d 232, 1963 N.C. LEXIS 775 (1963); State v. Summitt, 45 N.C. App. 481, 263 S.E.2d 612, 1980 N.C. App. LEXIS 2653 (1980), aff'd, 301 N.C. 591 , 273 S.E.2d 425, 1981 N.C. LEXIS 1010 (1981); State v. Bruce, 315 N.C. 273 , 337 S.E.2d 510, 1985 N.C. LEXIS 1996 (1985).

Consent No Defense. —

Consent of prosecutrix is no defense in a prosecution for carnal knowledge of a female child under the age of 12 years (now 13 years). State v. Temple, 269 N.C. 57 , 152 S.E.2d 206, 1967 N.C. LEXIS 1026 (1967); State v. Cox, 280 N.C. 689 , 187 S.E.2d 1, 1972 N.C. LEXIS 1292 (1972).

Trial court did not err by denying defendant’s request for instructions on mistake of age and consent as defenses because statutory rape is a strict liability crime. State v. Ward, 250 N.C. App. 254, 792 S.E.2d 579, 2016 N.C. App. LEXIS 1108 (2016).

Attempted First-Degree Rape of Child. —

In order to prove attempted first-degree rape of three and a half year old child, the State had to show that the victim was 12 years old or less, that the defendant was at least 12 years old and at least four years older than the victim, that the defendant had the intent to engage in vaginal intercourse with the victim, and that the defendant committed an act that went beyond mere preparation but fell short of actual commission of intercourse. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110, 1985 N.C. App. LEXIS 4330 (1985).

Evidence of 20-year-old defendant’s action with nine-year-old child was sufficient to support the jury’s verdict that defendant was guilty of attempted first degree rape, even though he stopped when she started to cry. State v. Griffin, 319 N.C. 429 , 355 S.E.2d 474, 1987 N.C. LEXIS 2026 (1987).

Juvenile who was under the age of 12 at the time of the offense could not be found guilty of first-degree rape under subdivision (a)(1) of this section for engaging in vaginal intercourse with six-year-old victim where the record contained no evidence of the age of his accomplice. State v. Drummond, 81 N.C. App. 518, 344 S.E.2d 328, 1986 N.C. App. LEXIS 2322 (1986).

Competence of Child as Witness. —

Whether a five-year-old child is competent to testify in a rape prosecution is a matter resting in the sound discretion of the trial judge, and where the evidence upon the voir dire as well as the child’s testimony upon the trial negates abuse of discretion the ruling of the trial court that the child was a competent witness will not be disturbed on appeal. State v. Merritt, 236 N.C. 363 , 72 S.E.2d 754, 1952 N.C. LEXIS 553 (1952).

In a prosecution for rape of a female under 12 years of age, her testimony to the effect that defendant had repeatedly had intercourse with her during the prior several years is competent in corroboration of the offense charged, and the first such occasions will not be held too remote when the evidence discloses that such acts were repeated with regularity up to the date specified in the indictment. State v. Browder, 252 N.C. 35 , 112 S.E.2d 728, 1960 N.C. LEXIS 380 (1960).

Leading Questions Held Proper. —

In prosecution for first-degree rape of six-year-old, the trial court did not abuse its discretion in permitting the prosecutor to ask leading questions on direct examination of the victim. State v. Hannah, 316 N.C. 362 , 341 S.E.2d 514, 1986 N.C. LEXIS 2110 (1986).

Young Victim’s Testimony Held Sufficient. —

Although the victim did not use the word “vagina,” or “genital area,” when describing the sexual assault perpetrated upon her, she did employ words commonly used by females of tender years to describe these areas of their bodies, of which they are just becoming aware, and her testimony was sufficient to require submission of defendant’s guilt of second-degree sexual offense to the jury. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Where a child testified that the defendant stuck his ding dong up her po po, and she demonstrated, using male and female dolls, that the po po is a vagina and the ding dong is a penis, this was substantial evidence from which the jury could find the defendant engaged in vaginal intercourse with his daughter. State v. Fletcher, 322 N.C. 415 , 368 S.E.2d 633, 1988 N.C. LEXIS 370 (1988).

Evidence of Discussion of Sexual Matters in Child’s Presence. —

In a prosecution for the rape of a six-year-old child, evidence that the victim’s father had discussed sexual matters in her presence was not competent as bearing upon consent, since consent is no defense, or to impugn the credibility of the victim’s testimony, or for any other purpose. State v. Cox, 280 N.C. 689 , 187 S.E.2d 1, 1972 N.C. LEXIS 1292 (1972).

Taking Testimony of Child in Absence of Jury. —

In a prosecution for rape of an eight-year-old child, it was error to have the court reporter take the testimony of the child in the absence of the jury and then read to the jury the examination which had been conducted in its absence. State v. Payton, 255 N.C. 420 , 121 S.E.2d 608, 1961 N.C. LEXIS 608 (1961).

Evidence held sufficient to convict a defendant of the offense of engaging in vaginal intercourse with a victim under the age of 13 years, when he was at least 12 years old and at least four years older than the victim. State v. Degree, 322 N.C. 302 , 367 S.E.2d 679, 1988 N.C. LEXIS 281 (1988).

V.Consent

Explicit Threat Unnecessary. —

The absence of an explicit threat inducing consent is not determinative; it is enough if the totality of the circumstances surrounding the actions of defendant give rise to a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sexual contact. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

The words “against the will” connote the victim’s lack of consent. State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982).

Proof of Lack of Consent. —

Evidence of physical resistance is not necessary to prove lack of consent in a rape case. State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977).

Consent Induced by Fear and Violence Is Void. —

Consent of prosecutrix which is induced by fear and violence is void and is no legal consent. State v. Carter, 265 N.C. 626 , 144 S.E.2d 826, 1965 N.C. LEXIS 1068 (1965); State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980); State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977).

Consent of the woman from fear of personal violence is void. Even though a man lays no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man is rape. State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977).

Circumstantial evidence and a co-defendant’s testimony that the victim feared defendant because defendant was carrying a knife was sufficient to prove lack of consent. State v. Hyatt, 355 N.C. 642 , 566 S.E.2d 61, 2002 N.C. LEXIS 676 (2002), cert. denied, 537 U.S. 1133, 123 S. Ct. 916, 154 L. Ed. 2d 823, 2003 U.S. LEXIS 390 (2003), writ denied, 359 N.C. 284 , 610 S.E.2d 382, 2005 N.C. LEXIS 32 (2005), writ denied, 656 S.E.2d 594, 2007 N.C. LEXIS 1244 (N.C. 2007), writ denied, 362 N.C. 90 , 2007 N.C. LEXIS 1475 (2007).

Sexual Encounters for Payment. —

Although the victim was a prostitute and initially sought a sexual encounter for payment, the victim’s fear of defendant was specific to the events leading to defendant’s sexual assaults on and murder of her, so that a jury could reasonably find that there was substantial evidence that the victim withdrew any prior consent to the sexual acts. State v. Penland, 343 N.C. 634 , 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Consent is also not a defense to G.S. 14-27.7 A although the legislature created it as a separate statute, rather than amending this section. State v. Anthony, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Consent Not Shown Where Woman Visits Disreputable Places Unescorted. —

Contributory negligence by the victim is no bar to prosecution by the State for the crime of rape. Hence, the fact that a woman goes, without proper escort, to a place where men of low morals might reasonably be expected to congregate does not establish her consent to have sexual relations with them, although it is competent evidence to be considered by the jury on that question. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967).

VI.Use of Force or Threats

Common Law Meaning. —

The phrase “by force and against her will,” (now “by force and against the will of the other person”) used in this section and G.S. 14-27.3 , 14-27.4 and 14-27.5, means the same as it did at common law when it was used to describe some of the elements of rape. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981); State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982); State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Actual Physical Force Not Required. —

By “force” does not necessarily mean by actual physical force. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

Fear, fright, or duress, may take the place of force. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977); State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977).

Or Threat of Serious Bodily Injury. —

The mere threat of serious bodily harm which reasonably induces fear thereof constitutes the requisite force. State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

Force Implied in the Case of an Incapacitated Victim. —

It makes no difference in the case of a sleeping or similarly incapacitated victim whether the State proceeds on the theory of a sexual act committed by force and against the victim’s will or whether it alleges an incapacitated victim; force and lack of consent are implied in law. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

The “general fear” theory in State v. Alston, 310 N.C. 399 , 312 S.E.2d 470 (1984), is applicable only to fact situations similar to those in that case. State v. Strickland, 318 N.C. 653 , 351 S.E.2d 281, 1987 N.C. LEXIS 1760 (1987).

Reasonableness of Fear and Fear of Violence. —

The failure of the trial judge in a prosecution for first degree rape to instruct the jury that the fear which induces consent must be reasonable and that the fear must be of violence was not error. Statements contained in prior cases do not establish an objective standard of reasonableness by which the jury must judge consent, and, even if the reasonableness standard were the rule, instructions that the victim’s fear must be reasonable and of violence were unnecessary under the facts of the case. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Evidence of Force Held Sufficient. —

Where it was established that the victim, a 78-year-old lady, had been severely beaten, resulting in multiple contusions and a large bite on her arm, multiple abrasions on her face, a one and one-half inch long laceration on the left side of her scalp, abrasions on both legs, and fractured ribs on her left side, there was evidence sufficient to support a conviction under this section. State v. Green, 305 N.C. 463 , 290 S.E.2d 625, 1982 N.C. LEXIS 1338 (1982).

VII.Dangerous or Deadly Weapons

What Is a Dangerous or Deadly Weapon. —

In order to be characterized as a dangerous or deadly weapon, an instrumentality need not have actually inflicted serious injury. A dangerous or deadly weapon is any article, instrument or substance which is likely to produce death or great bodily injury. State v. Young, 317 N.C. 396 , 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Legislative Intent Regarding Use of Deadly Weapon. —

The legislature intended to make implicit under this section a matter of ordinary common sense: that the use of a deadly weapon, in any manner, in the course of a rape offense, always has some tendency to assist, if not entirely enable, the perpetrator to accomplish his evil design upon the victim, who is usually unarmed. State v. Sturdivant, 304 N.C. 293 , 283 S.E.2d 719, 1981 N.C. LEXIS 1339 (1981); State v. Powell, 306 N.C. 718 , 295 S.E.2d 413, 1982 N.C. LEXIS 1546 (1982).

This section does not require a showing that a dangerous or deadly weapon was used in a particular manner in order to sustain a conviction for first degree rape. Instead it requires a showing only that such a weapon was employed or displayed. State v. Langford, 319 N.C. 340 , 354 S.E.2d 523, 1987 N.C. LEXIS 1923 (1987).

A weapon has been “employed” when defendant has it in his possession at the time of the rape. State v. Langford, 319 N.C. 340 , 354 S.E.2d 523, 1987 N.C. LEXIS 1923 (1987).

“Employs” a Weapon. —

A weapon has been “employed” within the meaning of this section when the defendant has it in his possession at the time of the rape. State v. White, 101 N.C. App. 593, 401 S.E.2d 106, 1991 N.C. App. LEXIS 143 (1991).

Trial court erred by denying defendant’s motions to dismiss the charges of first-degree rape and first-degree sexual offense because the State of North Carolina failed to offer any evidence tending to show that defendant employed or displayed a dangerous or deadly weapon or an article which the victim reasonably believed was a dangerous or deadly weapon, as required by G.S. 14-27.2(a)(2)(a) and G.S. 14-27.4(a)(2)(a). However, the case was remanded for resentencing because the jury’s convictions necessarily included all the elements of second-degree rape and second-degree sexual offense under G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1). State v. Adams, 187 N.C. App. 676, 654 S.E.2d 711, 2007 N.C. App. LEXIS 2572 (2007).

Formerly, it was necessary to show specifically that the weapon was used to overcome the victim’s resistance or to procure her submission, but this section, however, simply necessitates a showing that a dangerous or deadly weapon was employed or displayed in the course of a rape. State v. Powell, 306 N.C. 718 , 295 S.E.2d 413, 1982 N.C. LEXIS 1546 (1982).

Weapons of Conspirators. —

Pursuant to G.S. 14-27.2(a)(2)(a) and (c), there was substantial evidence to support defendant’s conviction of first degree rape, because the co-defendant displayed a handgun during his and defendant’s sexual assault of the victim and the jury could have imputed co-defendant’s use of the handgun to defendant under the theory of acting in concert. State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

Charge That Fake Gun Can Be Deadly or Dangerous Weapon. —

Where the indictment charges violation of this section with the use of deadly weapons, “to wit: a rifle, a shotgun, and a pistol,” a jury instruction that the deadly weapon element of this section would be met if the victim reasonably believed a fake gun to be a dangerous or deadly weapon does not change the theory alleged in the indictment. State v. McKinnon, 306 N.C. 288 , 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Unloaded Gun. —

A gun which is used in the commission of rape to threaten the victim into submission, if not known to be unloaded, is an “article which the other person reasonably believes to be a dangerous or deadly weapon” and is sufficient to meet the definition of first degree rape. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6, 1991 N.C. App. LEXIS 473 (1991).

Cord. —

Where defendant choked the victim with a cord until she lost consciousness and the manner in which defendant used the rope could have resulted in the victim’s death by strangulation, the only reasonable inference was that the cord as used by defendant was a dangerous weapon as a matter of law. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658, 1988 N.C. App. LEXIS 1067 (1988).

Knife. —

Where the jury, had it been left to determine the nature of the weapon as a factual issue, would have probably found that the knife used in rape of the victim was a dangerous or deadly weapon or at least that the victim reasonably believed it to be such, the court’s instructional error, if any, in instructing the jury that “a knife is a deadly weapon,” had no probable impact on the jury’s finding of guilt so as to merit a new trial despite the defendant’s failure to object to the instruction. State v. Clemmons, 319 N.C. 192 , 353 S.E.2d 209, 1987 N.C. LEXIS 1889 (1987).

Large Knife. —

The trial judge committed no error in taking from the jury the question of whether a knife (described as being a large knife with a long shiny blade), which was capable of cutting a person’s throat, going into the windpipe and going four inches into the stomach, was a deadly weapon. State v. Kuplen, 316 N.C. 387 , 343 S.E.2d 793, 1986 N.C. LEXIS 2227 (1986).

Where there was conflicting evidence on defendant’s use of a knife, proof of which was necessary for a verdict of first-degree rape, victim testifying that defendant employed a knife during the act of rape, while defendant testified that there was no knife in his truck when the incident occurred, and no knife was ever located by investigating officers, the trial court properly included the lesser-included offenses of second-degree rape and second-degree sexual offense in its charge to the jury. State v. Watkins, 89 N.C. App. 599, 366 S.E.2d 876, 1988 N.C. App. LEXIS 355 (1988).

Use of Weapon in Hands of Codefendant as Aggravating Factor. —

Where defendant’s commission of rape through the use of deadly weapons in the hands of his codefendant is a circumstance transactionally related to the commission of second-degree rape and reflective of his individual culpability for the crime, it may be considered by the trial judge and found as an aggravating factor. State v. Collier, 72 N.C. App. 508, 325 S.E.2d 256, 1985 N.C. App. LEXIS 3118 (1985).

Box Cutter as Deadly Weapon. —

Evidence held to amply support the trial judge’s instruction to the effect that utility knife or box cutter used in the perpetration of rape was a dangerous or deadly weapon per se, where in the circumstances of its use, it was likely to produce death or great bodily harm. State v. Torian, 316 N.C. 111 , 340 S.E.2d 465, 1986 N.C. LEXIS 1907 , cert. denied, 479 U.S. 836, 107 S. Ct. 133, 93 L. Ed. 2d 77, 1986 U.S. LEXIS 3637 (1986).

Sufficiency of Evidence. —

In a case in which the defendant and an accomplice raped a woman while the accomplice threatened the victim with a gun, remand was necessary as to charges of first degree rape and first degree sexual offense by anal intercourse because (1) defendant sufficiently preserved the issue for appellate review, and (2) the evidence was insufficient to permit a reasonable jury to convict defendant of the first degree offenses for which no acting in concert instruction was given since the record contained no evidence showing defendant’s personal use or display of a dangerous weapon. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560, 2007 N.C. App. LEXIS 2574 (2007), rev'd in part, 362 N.C. 340 , 663 S.E.2d 311, 2008 N.C. LEXIS 490 (2008).

VIII.Serious Personal Injury

Definitions. —

The term “inflicts serious injury” means physical or bodily injury resulting from an assault with a deadly weapon with intent to kill. The injury must be serious but it must fall short of causing death. Further definition seems neither wise nor desirable. Whether such serious injury has been inflicted must be determined according to the particular facts of each case. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Construction of Terms. —

Some guidance to the meaning of the phrase “serious bodily injury” (now “serious personal injury”) can be found by reference to cases construing G.S. 14-32 (assault with a deadly weapon with intent to kill inflicting serious injury) and by viewing similar cases from other jurisdictions. State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

“Serious bodily injury” (now “serious personal injury”) is not the equivalent of “by force and against her will.” State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

Connection with Sexual Acts. —

The element of infliction of serious personal injury upon the victim or another person in the crimes of first-degree sexual offense and first-degree rape is sufficiently connected in time to the sexual acts when there is a series of incidents forming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury. Such incidents include injury inflicted on the victim to overcome resistance or to obtain submission, injury inflicted upon the victim or another in an attempt to commit the crimes or in furtherance of the crimes of rape or sexual offense, or injury inflicted upon the victim or another for the purpose of concealing the crimes or to aid in the assailant’s escape. State v. Blackstock, 314 N.C. 232 , 333 S.E.2d 245, 1985 N.C. LEXIS 1784 (1985).

Continuous Transaction. —

In a rape case where both rapes and the assault that inflicted serious injury occurred within a one-half hour period, the injury was one in a series of incidents in the same criminal episode, forming one continuous transaction between the rapes and its infliction. State v. Johnson, 320 N.C. 746 , 360 S.E.2d 676, 1987 N.C. LEXIS 2402 (1987).

Injuries to Third Party. —

State could properly rely on injuries suffered by an attempted rape victim’s daughter in elevating the attempted rape to attempted first degree rape, as the jury could have reasonably inferred that defendant attacked the daughter to aid his escape and that the attempted rape of the mother and the attack on the daughter were part of one continuous transaction. State v. Rogers, 153 N.C. App. 203, 569 S.E.2d 657, 2002 N.C. App. LEXIS 1126 (2002).

Mental Injury May Constitute Serious Personal Injury. —

Proof of the element of infliction of “serious personal injury” as required by subdivision (2)b of this section and G.S. 14-27.4(2)b may be met by the showing of mental injury as well as bodily injury. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

While serious injury can be used to support a first-degree rape conviction, this element is not required for a conviction of second-degree rape. Mental injuries associated with the crime are sufficient to make a crime first degree rape, but they must be associated with the rape, and the State must prove that the defendant caused the harm, that it extended for some appreciable period of time beyond the incidents surrounding the crime itself, and that the harm was more than the “res gestae” results present in every forcible rape. State v. Finney, 358 N.C. 79 , 591 S.E.2d 863, 2004 N.C. LEXIS 10 (2004).

It was not plain error not to instruct a jury, in a first-degree rape prosecution, not to rely on the same evidence to find both that the victim suffered ongoing emotional harm and the aggravating factor of the victim’s advanced age because (1) testimony establishing the victim’s lingering negative emotional consequences, used to show the element that the victim suffered a serious personal injury, was not specifically related to the victim’s age, and, (2) since all the evidence concerned the victim’s mental state after the rape, none of the evidence was relevant to whether the victim was more vulnerable to the crime. State v. Saunders, 239 N.C. App. 434, 768 S.E.2d 340, 2015 N.C. App. LEXIS 79 (2015).

But Must Be Greater Than That Present in Every Rape. —

The legislature intended that ordinarily the mental injury inflicted must be more than the res gestae results present in every forcible rape and sexual offense. In order to support a jury finding of serious personal injury because of injury to the mind or nervous system, the State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

In order to prove a serious personal injury based on mental or emotional harm there is no requirement that the mental injury arise from an action not ordinarily present in a forcible rape; what is required is that the mental injury extend for some appreciable time beyond the incidents surrounding the rape and that it is a mental injury beyond that normally experienced in every forcible rape. State v. Baker, 336 N.C. 58 , 441 S.E.2d 551, 1994 N.C. LEXIS 169 (1994).

In order for a mental injury to constitute “serious personal injury,” the mental injury must be more than the res gestae results present in every forcible rape and sexual offense; if a mental injury extends for some appreciable time, it is a mental injury beyond that normally experienced in every forcible rape. State v. Easterling, 119 N.C. App. 22, 457 S.E.2d 913, 1995 N.C. App. LEXIS 397 (1995).

Where defendant argued that the jury was improperly not instructed that, in order to support a conviction for first-degree rape, the alleged mental injury had to be more than or different from the injury usually associated with forcible rape, the argument failed; the jury was properly instructed that serious mental injury could be shown if the injury lasted for an appreciable period of time beyond the crime, as a mental injury that extended for some period of time was a mental injury beyond that normally experienced in every forcible rape. State v. Finney, 157 N.C. App. 267, 581 S.E.2d 764, 2003 N.C. App. LEXIS 543 (2003), rev'd, 358 N.C. 79 , 591 S.E.2d 863, 2004 N.C. LEXIS 10 (2004).

Question Must Be Decided on Facts of Case. —

Obviously, the question of whether there was such mental injury as to result in “serious personal injury” must be decided upon the facts of each case. It is impossible to enunciate a “bright line” rule as to when the acts of an accused cause mental upset which could support a finding of “serious personal injury.” State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

In determining whether “serious personal injury” has been inflicted as the phrase is used in the definitions of first-degree rape and first-degree sexual offense, the court must consider the particular facts of each case. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Sufficiency of Evidence. —

The evidence in a first-degree rape prosecution was sufficient to support a finding that the victim suffered a serious bodily injury where the victim suffered a hard blow to her upper jaw that left her stunned and dazed and knocked five teeth out of alignment, breaking the root of one tooth, where the teeth had to be deadened, forced back into line and secured with a metal brace, and where expert medical testimony predicted that the teeth would die and that root canals or actual extraction would be necessary. State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

The evidence supported the serious injury element under this section where it showed that defendant repeatedly struck victim in the face immediately before he forced her to have sexual intercourse with him. State v. Locklear, 320 N.C. 754 , 360 S.E.2d 682, 1987 N.C. LEXIS 2406 (1987).

In trial on charges of first-degree rape and first-degree sexual offense, evidence supported the jury’s verdict of guilty on the basis that the victim suffered serious personal injury in the form of both bodily and mental injury, where the victim testified that in addition to the physical pain she experienced during and immediately after the rape and sodomy, she had continued to experience appetite loss, severe headaches, nightmares, sleep difficulty, difficulty in urination, and difficulty in bowel movements. State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645, 1990 N.C. App. LEXIS 1211 (1990).

The mental injuries at issue extended for some appreciable time beyond the incidents surrounding the crime itself where the victim experienced weight loss for ten months after the rape; 12 months after the rape, she was still experiencing depression, was unable to sleep, and did not feel comfortable interacting with the public; the victim had quit work, moved from her home, and sought counseling; and after the rape, the victim was unable to carry out her role as a mother and had to give up her child to the child’s grandmother for care for nine months. State v. Baker, 336 N.C. 58 , 441 S.E.2d 551, 1994 N.C. LEXIS 169 (1994).

Testimony of victim that she moved out of her home because she was “scared to go back” home, was not sufficient evidence to support the conclusion that the victim sustained a “serious” personal injury. State v. Lilly, 117 N.C. App. 192, 450 S.E.2d 546, 1994 N.C. App. LEXIS 1212 (1994), aff'd, 342 N.C. 409 , 464 S.E.2d 42, 1995 N.C. LEXIS 670 (1995).

State sufficiently proved the “serious personal injury” element of attempted first degree rape by evidence that the attempted rape victim suffered a broken nose, a concussion, bruises, and abrasions, and that her daughter suffered a cracked cheekbone and a broken nose and jaw. State v. Rogers, 153 N.C. App. 203, 569 S.E.2d 657, 2002 N.C. App. LEXIS 1126 (2002).

IX.Parties to Crime

Juvenile who was under the age of 12 at the time of the offense could not be found guilty of first-degree rape under subsection (a)(1) of this section for engaging in vaginal intercourse with six-year-old victim where the record contained no evidence of the age of his accomplice. State v. Drummond, 81 N.C. App. 518, 344 S.E.2d 328, 1986 N.C. App. LEXIS 2322 (1986).

Aider and Abettor Defined. —

An aider or abettor of first-degree rape is a person who is actually or constructively present at the scene of the crime and who aids, advises, counsels, instigates or encourages another to commit the offense. Even though not actually present during the commission of the crime, a person may be an aider or abettor if he shares the criminal intent of the perpetrator and if, during the commission of the crime, he is in a position to render any necessary aid to the perpetrator. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Knowledge of Aider and Abettor’s Threats. —

For defendant to be convicted of first-degree rape based in part on the actions of codefendant, it is necessary to show only that the two share a common unlawful purpose, i.e., that the two aid and abet one another in the commission of the crime; it is not necessary for each to have full knowledge of all acts committed by the other. Thus, where the trial court fully and adequately instructed on the elements of aiding and abetting, the court did not err in failing to instruct that the defendant must be found to have known of codefendant’s threats which induced consent. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Aiders and Abettors Are Guilty of Rape. —

Two or more persons may be guilty of the single crime of rape by being present, aiding and abetting in its commission. One holding the husband of prosecutrix while another is perpetrating the crime of rape is guilty as a principal in the offense. State v. Jordan, 110 N.C. 491 , 14 S.E. 752, 1892 N.C. LEXIS 91 (1892).

A man and a woman are both guilty of raping a female child where both caused the child to become drunk and the man had intercourse with the child while being held by the woman. State v. Hairston, 121 N.C. 579 , 28 S.E. 492, 1897 N.C. LEXIS 284 (1897).

One who is present, aiding and abetting, in a rape actually perpetrated by another, is equally guilty with the actual perpetrator of the crime. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Martin, 17 N.C. App. 317, 194 S.E.2d 60, 1973 N.C. App. LEXIS 1345 , cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 951 (1973).

The presence of defendant’s nephews inside and outside the truck while defendant engaged in sexual acts with the victim could reasonably have been regarded as encouragement to defendant and constituted sufficient evidence that they and defendant shared the “community of unlawful purpose” necessary for aiding and abetting. State v. Penland, 343 N.C. 634 , 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Defendant/female, as an aider and abettor, was equally as guilty of rape against 11-year old victim as the actual male perpetrator. State v. Owen, 133 N.C. App. 543, 516 S.E.2d 159, 1999 N.C. App. LEXIS 620 (1999).

Thus, a woman may be convicted of rape. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Martin, 17 N.C. App. 317, 194 S.E.2d 60, 1973 N.C. App. LEXIS 1345 , cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 951 (1973).

A woman, who is physically incapable of committing rape upon another woman, may be convicted of rape where she aids and abets a male assailant in the rape of another woman. State v. Martin, 17 N.C. App. 317, 194 S.E.2d 60, 1973 N.C. App. LEXIS 1345 , cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 951 (1973).

And a husband may be guilty of the rape of his wife. (But see G.S. 14-27.8 ). State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Martin, 17 N.C. App. 317, 194 S.E.2d 60, 1973 N.C. App. LEXIS 1345 , cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 951 (1973).

Sufficiency of Evidence of Aiding and Abetting. —

Where the testimony of each defendant tended to show that he was close by when the other was having intercourse with the victim, either sitting in the front seat of the car or leaning against the outside of the car, and where defendants’ testimony and the relationship of each defendant to the other as cousins were consistent with a jury determination that each defendant knew and intended that the other would regard his presence as an encouragement and protection, the defendants’ evidence did not tend to negate the element of aiding and abetting. State v. Amerson, 316 N.C. 161 , 340 S.E.2d 98, 1986 N.C. LEXIS 1917 (1986).

X.Intent

Intent to commit the crime of rape is inferred from the commission of the act. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Perverse Intent. —

Where the evidence was sufficiently clear that defendant violently sexually assaulted and murdered four year old as a part of the same violent transaction, it was not too speculative for the jury to infer that defendant committed these acts against the child with an intent to satisfy his perverse desires. State v. Kandies, 342 N.C. 419 , 467 S.E.2d 67, 1996 N.C. LEXIS 16 , cert. denied, 519 U.S. 894, 117 S. Ct. 237, 136 L. Ed. 2d 167, 1996 U.S. LEXIS 5859 (1996).

To support a conviction for breaking or entering and attempted first-degree rape, the State’s evidence must show that defendant broke or entered the victim’s home with the intent to commit the felony of rape. In addition, the State’s evidence must show that defendant had the intent to commit the crime of rape as defined by this section and that defendant committed an act which went beyond mere preparation, but fell short of the actual completion of the offense. State v. Parks, 78 N.C. App. 778, 336 S.E.2d 424 (1985).

State Must Show Substantial Evidence of Intent. —

Although to prove the charge of attempted first-degree rape the State is not required to show an actual physical attempt to have sexual intercourse with the victim, there must be substantial evidence that defendant had the intent to gratify his passion upon the victim notwithstanding any resistance on her part. State v. Nicholson, 99 N.C. App. 143, 392 S.E.2d 748, 1990 N.C. App. LEXIS 468 (1990) (holding evidence insufficient to convict defendant of attempted first-degree rape) .

Testimony as to Statements Made by Defendant to Victim. —

Testimony by rape victim that defendant acknowledged prior sexual offenses and that he stated he enjoyed degrading white women was admissible evidence relevant to show both defendant’s motive for assaulting prosecutrix and possession of criminal intent before the fact. State v. Searles, 304 N.C. 149 , 282 S.E.2d 430, 1981 N.C. LEXIS 1329 (1981).

For discussion of sufficiency of evidence to justify an inference of intent to rape, see State v. Rushing, 61 N.C. App. 62, 300 S.E.2d 445, 1983 N.C. App. LEXIS 2575 , aff'd, 308 N.C. 804 , 303 S.E.2d 822, 1983 N.C. LEXIS 1305 (1983).

XI.Penetration

The legislature did not intend to alter the penetration required for the offense of rape when it enacted this section. State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

Vaginal Intercourse Defined. —

An essential element of rape under subdivision (a)(1) is vaginal intercourse, which is defined as the slightest penetration of the female sex organ by the male sex organ. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

Slightest Penetration Is Sufficient to Withstand a Motion to Dismiss. —

For a charge of first-degree rape to withstand a motion to dismiss for insufficient evidence, there must be evidence, among other things, that defendant engaged in “vaginal intercourse” with the victim, however, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute vaginal intercourse within the meaning of the statute. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

Testimony by child prosecutrix that defendant inserted his penis at least partially into her vagina was sufficient to show that defendant engaged in vaginal intercourse with prosecutrix, and discrepancies between the victim’s testimony and the physical evidence, were for the jury to resolve and did not warrant dismissal of the discharge. State v. Weaver, 117 N.C. App. 434, 451 S.E.2d 15, 1994 N.C. App. LEXIS 1264 (1994).

Penetration Without Emission Sufficient. —

It shall not be necessary upon the trial of any indictment for the offense of rape to prove the actual emission of seed in order to constitute the offense, but the offense shall be completed upon proof of penetration only. State v. Monds, 130 N.C. 697 , 41 S.E. 789, 1902 N.C. LEXIS 144 (1902).

The slightest penetration of the sexual organ of the female by the sexual organ of the male amounts to carnal knowledge in a legal sense. State v. Sneeden, 274 N.C. 498 , 164 S.E.2d 190, 1968 N.C. LEXIS 806 (1968).

As vaginal intercourse requires only the slightest penetration, the absence of sperm and other physical symptoms such as swelling or abrasions does not support a finding of attempted rape. State v. Ashley, 54 N.C. App. 386, 283 S.E.2d 805, 1981 N.C. App. LEXIS 2863 (1981).

Evidence of the slightest penetration of the female sex organ by the male sex organ is sufficient for vaginal intercourse and the emission of semen need not be shown to prove the offense of rape. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Lack of Erection. —

While penetration is best achieved when there is an erection, by no means can penetration to the degree necessary to satisfy the penetration element of rape be excluded because there is no erection. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Scope of Medical Expert’s Testimony. —

A medical expert may not testify that the defendant raped the prosecuting witness; however, a physician who is properly qualified as an expert may offer an opinion as to whether the victim in a rape prosecution had been penetrated and whether internal injuries had been caused thereby. State v. Galloway, 304 N.C. 485 , 284 S.E.2d 509, 1981 N.C. LEXIS 1369 (1981).

Testimony that an examination revealed evidence of traumatic and forcible penetration consistent with an alleged rape is a proper expression for an expert witness to establish whether the victim had been penetrated by force. State v. Galloway, 304 N.C. 485 , 284 S.E.2d 509, 1981 N.C. LEXIS 1369 (1981).

Pregnancy as Tending to Show Penetration. —

Testimony of the prosecutrix concerning her pregnancy tended to show penetration, one of the elements of rape. Defendant’s plea of not guilty placed upon the State the burden of proving beyond a reasonable doubt all the essential elements of the offense charged. Hence, evidence tending to prove penetration, an essential element of the offense, was properly admitted. State v. Cross, 284 N.C. 174 , 200 S.E.2d 27, 1973 N.C. LEXIS 815 (1973).

Evidence of Penetration Held Sufficient. —

Testimony by the prosecutrix in a rape case that defendant had “sex” and “intercourse” with her was sufficient to support a finding by the jury that there was penetration. State v. Ashford, 301 N.C. 512 , 272 S.E.2d 126, 1980 N.C. LEXIS 1178 (1980).

Child’s testimony that defendant had “put his private parts in my private parts,” which was further clarified on direct examination, was sufficient to support the charge of first-degree rape. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544 , 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

The State introduced sufficient evidence of penetration to permit a rational trier of fact to find beyond a reasonable doubt that the defendant committed the offense of incest and rape, where the child victim testified at trial that her father had penetrated her, even though there were discrepancies in her extrajudicial statements to others and in her trial testimony with regard to the manner, extent and frequency of the penetration. State v. Bruce, 315 N.C. 273 , 337 S.E.2d 510, 1985 N.C. LEXIS 1996 (1985).

Child’s testimony, coupled with medical evidence, held sufficient evidence of a penetration to support a first-degree rape conviction. State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Child’s testimony and medical evidence held sufficient evidence of penetration to support a first-degree rape conviction. State v. Moore, 103 N.C. App. 87, 404 S.E.2d 695, 1991 N.C. App. LEXIS 711 (1991).

After threatening a victim with a knife and blinding her by taping her eyes shut, defendant penetrated the victim vaginally from the front, then withdrawing, turning her on her side and re-penetrating her vaginally; here, there was sufficient evidence to show that defendant committed two separate acts of first degree rape such that defendant’s motion to dismiss the second count of first degree rape and defendant’s motion to dismiss the second degree kidnapping charge were properly denied. State v. Key, 180 N.C. App. 286, 636 S.E.2d 816, 2006 N.C. App. LEXIS 2291 (2006).

In a prosecution for first-degree statutory rape, under G.S. 14-27.2(a)(1), and second-degree forcible rape, under G.S. 14-27.3(a)(1), sufficient evidence was submitted of defendant’s penetration of the victim, when the victim testified that defendant placed his penis between her legs, continued pushing, “it hurt,” and she found blood on her underwear, and a physician testified that, although there was no indication of complete penetration, there was bruising of the inner lip of the labia minora near the hymen, so the denial of defendant’s motion to dismiss for lack of sufficient evidence of penetration was proper, as complete penetration was not required. State v. Bell, 159 N.C. App. 151, 584 S.E.2d 298, 2003 N.C. App. LEXIS 1432 (2003), cert. denied, 358 N.C. 733 , 601 S.E.2d 863, 2004 N.C. LEXIS 1013 (2004).

Trial court did not err by denying defendant’s motion to dismiss the charge of first-degree rape because there was ample testimony in support of penetration, as several of the victim’s family members and officers testified that she told them she had been raped, the victim was admitted to the hospital for one or two nights because of her pain and her inability to sit up and walk, and her daughter testified that she suffered scratches and bruises on her face and arms. State v. Elder, 2021-NCCOA-350, 278 N.C. App. 493, 863 S.E.2d 256, 2021- NCCOA-350, 2021 N.C. App. LEXIS 371 (2021).

Trial court did not err by denying defendant’s motion to dismiss the charge of first-degree rape because there was ample testimony in support of penetration, as several of the victim’s family members and officers testified that she told them she had been raped, the victim was admitted to the hospital for one or two nights because of her pain and her inability to sit up and walk, and her daughter testified that she suffered scratches and bruises on her face and arms. State v. Elder, 2021-NCCOA-350, 278 N.C. App. 493, 863 S.E.2d 256, 2021- NCCOA-350, 2021 N.C. App. LEXIS 371 (2021).

Evidence of Penetration Held Insufficient. —

There was insufficient evidence that defendant engaged in vaginal intercourse with a child victim before the victim turned 13 to send a statutory rape charge under G.S. 14-27.2(a)(1) to the jury as the victim testified that the first time defendant had sex with the victim it was anal intercourse, and that although defendant began touching the victim earlier, the victim was 13 years old when defendant started having sexual intercourse with the victim. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Instruction on Attempted Rape Not Required. —

Victim’s testimony that defendant tried to make the victim have sex with defendant and the lack of medical evidence of penetration did not create a conflict that would necessitate an instruction on first-degree attempted rape under G.S. 14-27.2(a)(1) since: (1) an expert witness testimony as to a lack of trauma did not indicate lack of penetration; (2) there was evidence that defendant had inserted defendant’s penis into the victim’s vagina, which was corroborated; (3) a witness testified that defendant told the witness that defendant had had sex with the victim; and (4) the victim’s testimony was consistent with penetration. State v. Thomas, 187 N.C. App. 140, 651 S.E.2d 924, 2007 N.C. App. LEXIS 2309 (2007).

Instruction Upheld. —

The trial court did not err by instructing the jury that “vaginal intercourse” is defined to be penetration, however slight, of female sex organ by the male sex organ, rather than as defendant requested: “The slightest penetration of the female vagina by the male sex organ.” State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

Although the victim’s own testimony was perhaps scientifically inaccurate and somewhat ambiguous regarding the act of penetration, it was corroborated by the testimony of numerous other witnesses; therefore, the trial court did not err in denying the defendant’s motion to dismiss the charge of first-degree rape. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

XII.Character of Victim

Editor’s Note. —

All of the annotations below are to cases decided prior to the enactment of the rape shield law, G.S. 8C-1 , Rule 412.

General Character Bears on Question of Consent. —

The general character of the prosecutrix in a rape case may be shown as bearing upon the question of consent. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977).

And May Be Shown by Evidence of Reputation. —

The most generally permissible method of proving character in a prosecution for rape is by evidence of the witness’ reputation. State v. Cole, 20 N.C. App. 137, 201 S.E.2d 100, 1973 N.C. App. LEXIS 1492 (1973).

The character of the alleged victim in a rape prosecution may be shown by evidence of her reputation as bearing upon the question of consent. State v. Cole, 20 N.C. App. 137, 201 S.E.2d 100, 1973 N.C. App. LEXIS 1492 (1973).

Testimony of Stranger Investigating Reputation. —

A stranger who has investigated a person’s reputation in the appropriate community may testify to the result of his investigation. State v. Cole, 20 N.C. App. 137, 201 S.E.2d 100, 1973 N.C. App. LEXIS 1492 (1973).

Unchastity Bears on Credibility and Consent. —

In the case of a prosecuting witness over the age of 12 years the general character of the prosecuting witness for unchastity may be shown for the purpose of attacking the credibility of her testimony, and has bearing upon the likelihood of her consent. State v. Cox, 280 N.C. 689 , 187 S.E.2d 1, 1972 N.C. LEXIS 1292 (1972).

When a defendant has been charged with rape or with assault with intent to commit rape, evidence of the prosecutrix’s reputation for unchastity is admissible both to attack her credibility as a witness and to show the likelihood of consent. State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978).

In a prosecution for rape, the general character of the prosecutrix for unchastity may be shown both to attack the credibility of her testimony and as bearing upon the likelihood of consent. State v. Grundler, 251 N.C. 177 , 111 S.E.2d 1, 1959 N.C. LEXIS 553 (1959), cert. denied, 362 U.S. 917, 80 S. Ct. 670, 4 L. Ed. 2d 738, 1960 U.S. LEXIS 1468 (1960).

Specific Acts of Unchastity with Persons Other Than Defendant. —

Testimony of specific acts of unchastity with person other than defendant is properly excluded. State v. Grundler, 251 N.C. 177 , 111 S.E.2d 1, 1959 N.C. LEXIS 553 (1959), cert. denied, 362 U.S. 917, 80 S. Ct. 670, 4 L. Ed. 2d 738, 1960 U.S. LEXIS 1468 (1960).

Specific acts of unchastity with persons other than defendant are inadmissible in rape cases. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977); State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978).

A witness called by the defendant cannot be asked about specific acts of misconduct by prosecutrix. This witness must confine himself to testimony concerning general reputation for chastity. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977).

The prosecutrix may be cross-examined concerning specific acts of unchastity for the sole purpose of impeaching credibility, but the defendant is bound by her answer. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977).

An accused in a prosecution for rape has a right to impeach the State’s witness by competent evidence of bad reputation of the witness. State v. Cole, 20 N.C. App. 137, 201 S.E.2d 100, 1973 N.C. App. LEXIS 1492 (1973).

Evidence of Victim’s Character Improperly Excluded. —

Where the evidence of the victim’s character was offered in a rape case according to the standard permissible method of proving character, since the witness’s testimony was directed to the “general reputation and character” of the victim and not to his personal opinion, it was error for the court not to allow the jury to consider the witness’s testimony on the issue of consent. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

Charge Limiting Consideration of Character. —

There was no prejudice to the defendant in the technically erroneous charge in a rape case limiting consideration of the victim’s character to the issue of credibility and not allowing the jury to consider character on the issue of consent where the credibility of the victim’s testimony that she did not consent was the key to the State’s case, and there was no real distinction between the issue of the victim’s credibility and the issue of her consent. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

XIII.Evidence

Evidence aliunde defendant’s admissions held sufficient to satisfy the requirements of the corpus delicti rule, and when considered with defendant’s confession, held sufficient to survive defendant’s various motions to dismiss rape charge against him. State v. Sloan, 316 N.C. 714 , 343 S.E.2d 527, 1986 N.C. LEXIS 2409 (1986).

The unsupported testimony of the prosecutrix in a prosecution for rape is sufficient to require submission of the case to the jury. State v. Bailey, 36 N.C. App. 728, 245 S.E.2d 97, 1978 N.C. App. LEXIS 2616 (1978).

Not Limited to Non-Fatal Injuries. —

The statutes governing first-degree rape and first-degree sexual offense do not limit the injuries underlying the charge to those not resulting in death. State v. Richmond, 347 N.C. 412 , 495 S.E.2d 677, 1998 N.C. LEXIS 13 , cert. denied, 525 U.S. 843, 119 S. Ct. 110, 142 L. Ed. 2d 88, 1998 U.S. LEXIS 5225 (1998).

Testimony of Witnesses to Victim’s Physical Condition. —

Evidence of independent witnesses as to the physical condition of the prosecutrix on the night the intercourse occurred corroborates her testimony. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977).

Evidence of Defendant’s Prior Sexual Misconduct. —

Trial court’s allowance of testimony by the eight-year-old victim regarding prior acts of sexual misconduct was not error; testimony was admissible to establish a common plan or scheme on the part of defendant to sexually molest his niece. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Defendant’s convictions for first-degree rape of a child under the age of 13 were affirmed because evidence of defendant’s prior sexual relations with his older half-daughter from about nine years earlier was properly admitted under G.S. 8C-1-404(b) to show a common scheme or plan; further, DNA evidence showing that defendant was the father of the victim’s child, and thus must have had sexual intercourse with her, was admissible to show a common scheme or plan under Rule 404(b). State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Evidence of Victim’s Past Sexual Behavior. —

Defendant’s request to cross-examine the prosecuting witness in rape trial, based upon his speculation that she was motivated to accuse him of rape because she was pregnant by her boyfriend, did not fall under an exception in G.S. 8C-1 , Rule 412; therefore the trial court was correct in denying this line of questioning during cross-examination of the prosecuting witness. State v. Alverson, 91 N.C. App. 577, 372 S.E.2d 729, 1988 N.C. App. LEXIS 899 (1988).

Testimony as to Victim’s Credibility Inadmissible. —

Statements by an expert on child sexual abuse that she “had not picked up on anything” to suggest that someone had told the alleged victim what to say, and that she had no concerns that the alleged victim had been “coached,” bore directly on the alleged victim’s credibility and were inadmissible. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, 1993 N.C. App. LEXIS 97 (1993), writ denied, 333 N.C. 256 , 426 S.E.2d 701, 1993 N.C. LEXIS 44 (1993), aff'd, 336 N.C. 748 , 446 S.E.2d 1, 1994 N.C. LEXIS 407 (1994).

The trial court erred by allowing the teacher of an alleged victim of sexual abuse to testify on direct examination regarding specific instances of the alleged victim’s conduct which tended to establish her truthfulness. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, 1993 N.C. App. LEXIS 97 (1993), writ denied, 333 N.C. 256 , 426 S.E.2d 701, 1993 N.C. LEXIS 44 (1993), aff'd, 336 N.C. 748 , 446 S.E.2d 1, 1994 N.C. LEXIS 407 (1994).

Defendant’s convictions of first-degree statutory rape of a child under the age of thirteen were reversed because it was plain error to admit expert testimony that a lack of physical findings was not inconsistent with sexual abuse and that the victim fell in that category, as, (1) absent physical evidence, the testimony’s only bases were the victim’s history and statements to a social worker, which did not support the opinion that the child was abused, (2) the case turned on the credibility of the victim, who provided the only direct evidence against defendant, (3) the error seriously affected the fairness, integrity, and public reputation of judicial proceedings, since the victim’s recitations of defendant’s acts were not entirely consistent, and, (4) given the expert’s unquestioned stature in the field and the expert’s opinion that, even absent physical symptoms, the victim was sexually abused, the testimony stilled any doubts the jury might have had about the victim’s credibility or defendant’s culpability. State v. Towe, 366 N.C. 56 , 732 S.E.2d 564, 2012 N.C. LEXIS 420 (2012).

Victim’s Testimony Consistent with Physical Evidence Held Substantial. —

Where at trial, the victim, age nine, testified defendant, age 31, laid her on the ground, took off her shorts and panties and “put his thing in mine,” and where doctor testified there was bruising on the sides of the victim’s labia and a small laceration in the area of the fourchette, and in the doctor’s expert opinion, this physical evidence was consistent with a penis having been forced through the victim’s labia, there was substantial evidence that defendant engaged in vaginal intercourse with the victim. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

Evidence Held Sufficient to Support the Serious Injury Element. —

Where the defendant choked the victim into unconsciousness three times, her jeans were tied around her neck and used to drag her nude body through a wooded area where she was left, she had a deep red ring around her throat and bruises and abrasions over nearly her entire body, the victim testified that the defendant had tried to put her eyes out with his thumbs, the evidence, taken in the light most favorable to the State, supported the serious injury element of first-degree rape and first-degree sexual offense. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Victim’s Out-of-Court Statements. —

In defendant’s trial for first-degree rape of a five-year-old, the victim’s out-of-court statements to social worker contained sufficient guarantees of trustworthiness for admission under G.S. 8C-1 , Rule 803(24). State v. Deanes, 323 N.C. 508 , 374 S.E.2d 249, 1988 N.C. LEXIS 697 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009, 1989 U.S. LEXIS 2711 (1989) (applying) State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Statements Made for Purpose of Diagnosis and Treatment. —

In a second-degree rape case, where doctor testified he asked the victim if “anything” was put inside her and the victim responded, “Yes”, the victim’s statements to the doctor were made for the purpose of diagnosis and treatment and were reasonably pertinent to the doctor’s diagnosis and treatment; therefore, the question and answer were permitted as an exception to the general hearsay rule. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

Testimony Establishing Plan or Scheme. —

The challenged testimony of the victim, her attending physician, and the investigating police officer tended to establish a plan or scheme by defendant to sexually abuse the victim when the victim’s mother went to work; furthermore, as the alleged prior incidents occurred within twelve months prior to the incident for which defendant was charged, proof of the incidents was not so remote in time as to outweigh its probative force; therefore, the trial court did not err in allowing evidence of these prior incidents. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

Expert Testimony About Behaviors Observed in Children Who Have Experienced Sexual Abuse. —

Trial court did not abuse its discretion by allowing an expert witness who was called by the State during defendant’s trial on charges of attempted first-degree rape and taking indecent liberties with a minor to testify about common characteristics and behaviors observed in children who experienced sexual abuse, even though the witness did not interview the victim or talk to her parents. State v. McCall, 162 N.C. App. 64, 589 S.E.2d 896, 2004 N.C. App. LEXIS 12 (2004).

Opinion Testimony as to Age of Defendant. —

Lay witnesses with an adequate opportunity to observe and who have in fact observed may state their opinion regarding the age of a defendant in a criminal case when the fact that he was at the time in question over a certain age is one of the essential elements to be proved by the State. State v. Gray, 292 N.C. 270 , 233 S.E.2d 905, 1977 N.C. LEXIS 1090 (1977).

Failure to Submit Proof of Age. —

Noting the difficulty of determining the age of a juvenile by mere observation, particularly when the age of the juvenile at the time of the alleged offense, not at the time of trial, is the crucial determination, the court held that the charge of first-degree rape should have been dismissed at the close of the evidence because the State failed to offer any direct evidence of respondent’s age. In re Jones, 135 N.C. App. 400, 520 S.E.2d 787, 1999 N.C. App. LEXIS 1158 (1999).

Leading Questions to Young Victim. —

In trial charging defendant with rape of his 9-year-old sister, the trial court did not abuse its discretion by allowing leading questions to be asked of the prosecuting witness until she gave the desired answer that vaginal penetration had occurred. State v. Wilson, 322 N.C. 91 , 366 S.E.2d 701, 1988 N.C. LEXIS 133 (1988).

Social Worker Had Become Agent of State. —

In case involving crimes against child victim, where social worker went beyond merely fulfilling her role as the victim’s social worker and began working with the sheriff’s department on the case prior to interviewing defendant, social worker’s role changed and became essentially like that of an agent of the State; accordingly, because the social worker did not advise defendant of her Miranda rights, the trial court erred in denying defendant’s motion to suppress statements made during her interview with the social worker. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, 1993 N.C. App. LEXIS 98 , cert. denied, 333 N.C. 465 , 427 S.E.2d 626, 1993 N.C. LEXIS 123 (1993).

Date of Offense. —

Where the jury was instructed that the State would be held to prove that offense involving a child victim occurred on or about a specified date, and defendant was given the benefit of this instruction and an opportunity to present alibi evidence for that date, which evidence the jury chose to disbelieve, the State would not be required to furnish conclusive proof that the offense occurred on that date. To force the State to admit of a date certain in order to accommodate defendant’s alibi evidence, and then by convoluted reasoning to suggest that failure to prove that the offense occurred on that specific date was fatal to the State’s case, would clearly frustrate the State’s efforts to convict offenders on sex related offenses involving young children. State v. Wood, 311 N.C. 739 , 319 S.E.2d 247, 1984 N.C. LEXIS 1755 (1984).

Use of Term “Rape” in Testimony. —

Victim’s use of the term “rape” in her testimony was clearly a convenient shorthand term, amply defined by the balance of her testimony, and did not constitute an opinion on a question of law. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

Testimony by the prosecutrix that defendant raped her did not invade the province of the jury since (1) the court sustained an objection to the testimony and (2) the testimony was competent as a shorthand statement of fact. State v. See, 301 N.C. 388 , 271 S.E.2d 282, 1980 N.C. LEXIS 1173 (1980).

Testimony as to Odors and Voices of Assailants. —

There was no merit to defendant’s contention in a rape case that the trial court erroneously allowed the prosecutrix to identify the defendant by body odor and voice since prosecutrix never identified defendant but simply testified that she knew four men were involved because her assailants had four different body odors and she heard four different voices, and defendant admitted he was present with three other men. State v. Hammonds, 301 N.C. 713 , 272 S.E.2d 856, 1981 N.C. LEXIS 1023 (1981).

Improper Advances Made Four Years Before. —

In a prosecution for rape of a female child under the age of 12 years, testimony of the prosecuting witness that the defendant had made improper advances to her approximately four years prior to the offense charged is competent evidence in corroboration of the offense charged. Gasque v. State, 271 N.C. 323 , 156 S.E.2d 740, 1967 N.C. LEXIS 1193 (1967), cert. denied, 390 U.S. 1030, 88 S. Ct. 1423, 20 L. Ed. 2d 288, 1968 U.S. LEXIS 1945 (1968).

Testimony as to Assault on Others at Time of Rape. —

Testimony as to the events that occurred in a home from the time of defendant’s violent entry until the consummation of rape was competent and relevant as part of the res gestae, including testimony that persons other than the rape victim had been assaulted by the defendant. State v. Burleson, 280 N.C. 112 , 184 S.E.2d 869, 1971 N.C. LEXIS 1099 (1971).

Assaults on Other Women on Same Date. —

In a prosecution for first-degree rape, evidence that defendant committed assaults on two other women on the same date as the rape was competent to show defendant’s state of mind and his common scheme and design to apply physical force in the commission of crimes of violence; furthermore, the two assaults were sufficiently close in time to the alleged rape that the incidents presented circumstances, not too remote in time to have probative value, which tended to aid the jury in understanding the conduct and motives of defendant. State v. Rick, 51 N.C. App. 383, 276 S.E.2d 768, 1981 N.C. App. LEXIS 2230 , aff'd, 304 N.C. 356 , 283 S.E.2d 512, 1981 N.C. LEXIS 1348 (1981).

Photographs. —

Color photographs depicting the condition of the rape victim’s body when examined by the doctor were competent for the purpose of illustrating the doctor’s testimony. State v. Atkinson, 278 N.C. 168 , 179 S.E.2d 410, 1971 N.C. LEXIS 956 , rev'd, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971).

Letter Written by Defendant to Victim’s Mother. —

In prosecution for first-degree rape and intercourse by a substitute parent, the trial court did not commit prejudicial error in admitting into evidence, over objection, a letter which the defendant wrote to the victim’s mother, in which defendant promised not to “bother” victim again, despite defendant’s contention that what he had meant was that he would not discipline the victim anymore. State v. Moses, 316 N.C. 356 , 341 S.E.2d 551, 1986 N.C. LEXIS 2059 (1986).

In prosecution for first-degree rape under this section, court properly permitted testimony regarding a letter from defendant to victim’s mother, and the State did not violate G.S. 15A-903(a)(1) when it failed to produce this letter, since it was never in the State’s possession and defendant failed to show that the original was destroyed in bad faith, as required by G.S. 8C-1 , Rule 1004. State v. Jarrell, 133 N.C. App. 264, 515 S.E.2d 247, 1999 N.C. App. LEXIS 406 (1999).

Garments worn by the victim of a rape and murder showing the location of a wound upon the person of the deceased, or which otherwise corroborate the State’s theory of the case, are competent. State v. Atkinson, 278 N.C. 168 , 179 S.E.2d 410, 1971 N.C. LEXIS 956 , rev'd, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971).

When relevant, articles of clothing identified as worn by the victim at the time the crime was committed are always competent evidence. State v. Atkinson, 278 N.C. 168 , 179 S.E.2d 410, 1971 N.C. LEXIS 956 , rev'd, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971).

Trial court properly admitted into evidence panties allegedly worn by defendant’s eight-year-old niece and the results of lab tests performed on the panties since there was no prejudice by admission of the evidence in question. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Pubic Hair. —

Where pubic hair found on the victim was “microscopically consistent” with defendant’s pubic hair and could have originated from the defendant, it is admissible although an expert could not positively identify the defendant from the hair comparison. State v. Pratt, 306 N.C. 673 , 295 S.E.2d 462, 1982 N.C. LEXIS 1556 (1982).

In a rape case, a hair belonging to someone other than the victim found in her pubic area tended to show that the person from whom the hair came could have engaged in sexual contact with the victim. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

Semen. —

The trial court did not err in allowing evidence that a medical examination disclosed the presence of semen in the victim’s vagina, although there was no laboratory proof that the semen came from the defendant, where the victim testified that defendant had a climax when he had intercourse with her, and further testified that she did not have intercourse with anyone else that day, and the semen samples were taken shortly after the event. There is no requirement that there be laboratory proof of the source of semen before it can be introduced into evidence. State v. Kinch, 314 N.C. 99 , 331 S.E.2d 665, 1985 N.C. LEXIS 1710 (1985).

Previous Convictions of Aiders and Abettors. —

In trial on charge of first degree rape, which was tried on the theory that defendant was the principal and two other men were aiders and abettors, evidence of the previous convictions of the other men was irrelevant under G.S. 8C-1 , Rule 401, and being irrelevant, was not admissible. Further, the admission of such evidence violated the defendant’s Sixth Amendment right to confront the witnesses against him with regard to this charge. State v. Brown, 319 N.C. 361 , 354 S.E.2d 225, 1987 N.C. LEXIS 1921 (1987).

Testimony Irrelevant. —

Trial judge did not err by not allowing defendant’s witnesses to testify that he had not molested their children and by not allowing several children to testify that he had not molested them since such testimony was totally irrelevant. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Evidence as to Weapon Admitted. —

Victim’s testimony regarding the shiny object in defendant’s hand, which the victim believed to be a knife, was relevant to the first-degree rape charge. State v. Lawrence, 191 N.C. App. 422, 663 S.E.2d 898, 2008 N.C. App. LEXIS 1509 (2008), aff'd, 363 N.C. 118 , 678 S.E.2d 658, 2009 N.C. LEXIS 231 (2009).

Evidence Held Sufficient to Support Dangerous Weapon Element. —

Where the victim reasonably believed that the defendant had an object which was a dangerous weapon that he would use, the trial court did not err in denying defendant’s motion to dismiss the first-degree rape charge on the grounds that there was no evidence to support a finding that a dangerous or deadly weapon was employed or displayed. State v. Mayse, 97 N.C. App. 559, 389 S.E.2d 585, 1990 N.C. App. LEXIS 222 (1990).

Evidence Held Sufficient to Support Force Element. —

The evidence reasonably supported the inference that the victim had vaginal intercourse with defendant by force and against her will where her body was severely beaten, and testimony indicated that she was alive during the beating. State v. Moseley, 338 N.C. 1 , 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

Evidence Held Sufficient to Support Separate Charges and Convictions. —

Evidence which showed two distinct acts of intercourse, both accomplished by force and over the repeated resistance of the victim, was sufficient to support separate charges and convictions of first degree rape charges. State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214, 1989 N.C. App. LEXIS 1027 (1989), cert. denied, dismissed, 327 N.C. 485 , 397 S.E.2d 227, 1990 N.C. LEXIS 851 (1990).

Defendant’s 11 convictions for first-degree rape of a child under the age of 13, in violation of G.S. 14-27.2(a)(1), were affirmed because the generic evidence in the form of the victim’s testimony as to the acts that occurred approximately twice a week over a 10-month period was sufficient to support the convictions; thus, defendant’s right to a unanimous verdict was not violated. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

There was sufficient evidence to survive defendant’s motion to dismiss all of the charges against him, which included first-degree sex offense with a child, G.S. 14-27.4(a)(1), attempted first-degree statutory rape G.S. 14-27.2 , and two separate counts of indecent liberties with a child, G.S. 14-202.1(a)(1), because the victims both recounted specific details about the sexually abusive conduct of defendant; a police officer, doctors, and other witnesses testified that the victims both told them about defendant’s sexually abusive conduct, and the State introduced as evidence the recorded interviews of the victims that were used by the medical team at the child abuse center to make their treatment recommendations. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145, 2010 N.C. App. LEXIS 640 (2010), cert. dismissed, 372 N.C. 708 , 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Evidence Held Insufficient to Support Separate Charges and Convictions. —

Victim’s ambiguous characterization of the number of times defendant inserted his penis into her vagina as “a couple” was insufficient to charge defendant with three counts of first degree rape. State v. Blow, 237 N.C. App. 158, 764 S.E.2d 230, 2014 N.C. App. LEXIS 1117 (2014), rev'd, 368 N.C. 348 , 776 S.E.2d 844, 2015 N.C. LEXIS 931 (2015).

Evidence Held Sufficient. —

Evidence aliunde defendant’s admissions held sufficient to satisfy the requirements of the corpus delicti rule, and when considered with defendant’s confession, held sufficient to survive defendant’s various motions to dismiss rape charge against him. State v. Sloan, 316 N.C. 714 , 343 S.E.2d 527, 1986 N.C. LEXIS 2409 (1986).

As the victim testified that defendant had vaginal intercourse with her when she was 12, and defendant’s testimony established that he was more than four years older than the victim, defendant’s motion to dismiss first degree rape charges was properly denied. State v. Carter, 198 N.C. App. 297, 679 S.E.2d 457, 2009 N.C. App. LEXIS 1174 (2009).

Evidence held sufficient to withstand a motion to dismiss charge of first degree rape of ten-year-old victim. State v. Rhodes, 321 N.C. 102 , 361 S.E.2d 578, 1987 N.C. LEXIS 2489 (1987).

Evidence held sufficient to support conviction for first-degree rape of five-year-old, despite victim’s inability to testify upon being adjudged incompetent as a witness. State v. Deanes, 323 N.C. 508 , 374 S.E.2d 249, 1988 N.C. LEXIS 697 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009, 1989 U.S. LEXIS 2711 (1989).

Where the prosecuting witness testified that defendant removed her clothing, put her on top of him, and that she could feel something moving between her legs and defendant let her go only when her aunt drove into the driveway, the State met its burden of presenting substantial evidence on each element of the offense of attempted first degree rape. State v. Reynolds, 93 N.C. App. 552, 378 S.E.2d 557, 1989 N.C. App. LEXIS 249 (1989).

Evidence was sufficient to withstand defendant’s motion to dismiss where at trial child testified that defendant pulled down her pajamas and laid her on the floor and although child did not respond when asked to point to where her private parts were located, the transcript revealed that she knew where they were since she answered affirmatively when asked if private parts “were [where he] goes to the bathroom,” and doctor testified that the opening of the child’s vagina was approximately two centimeters in diameter and there was evidence of tearing, and subsequent healing, of the hymen ring. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419, 1989 N.C. App. LEXIS 814 (1989).

Victim’s testimony that defendant had sexual intercourse with her on the couch and later in the bedroom was sufficient to allow the jury to draw the reasonable inference that defendant had vaginal intercourse with the victim, and victim’s testimony that defendant threatened her with an open knife was sufficient to establish that defendant employed or displayed a dangerous or deadly weapon; therefore, trial court properly denied defendant’s motion to dismiss rape charges. State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214, 1989 N.C. App. LEXIS 1027 (1989), cert. denied, dismissed, 327 N.C. 485 , 397 S.E.2d 227, 1990 N.C. LEXIS 851 (1990).

Evidence is sufficient to show first-degree rape where the victim testified to many acts of vaginal intercourse by the defendants to which she did not consent, she recounted the threats by the defendants to hurt her with a butcher knife, which was found at the scene unless she cooperated, and the victim explained how the defendants held her arms and legs as each attempted vaginal intercourse and achieved some penetration. State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245, 1992 N.C. App. LEXIS 565 (1992).

There was sufficient evidence from which a rational trier of fact could find in the present case that the defendant engaged in vaginal intercourse with victim by force and against her will while either employing a dangerous weapon or inflicting serious personal injury upon her. State v. Worsley, 336 N.C. 268 , 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

Evidence that a murder victim was abducted from her apartment, that the defendant’s sperm was found in her vagina, and that intercourse occurred in the woods where her body was found supported the finding that the defendant had intercourse with the victim against her will, thus supporting his conviction for first-degree rape and felony-murder. State v. Trull, 349 N.C. 428 , 509 S.E.2d 178, 1998 N.C. LEXIS 852 (1998), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed. 2d 80, 1999 U.S. LEXIS 5255 (1999).

Evidence which included the testimony of victim, victim’s mother, a police detective, a social worker and a counselor, was sufficient to support the charges of first-degree rape under this section. State v. Jarrell, 133 N.C. App. 264, 515 S.E.2d 247, 1999 N.C. App. LEXIS 406 (1999).

Sufficient evidence supported the defendant’s conviction of first degree murder and first degree rape where the State’s expert testified that the victim, who weighed 92 pounds and was less than five feet tall, had a series of small, superficial stab wounds on her throat, consistent with “compliance or intimidation wounds,” and had “typical defense knife-type defense wounds” on the inside of her hands, her neck had been sliced with a knife, half-way severing her left jugular vein, and there was sperm inside her body. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145, 2001 N.C. App. LEXIS 269 (2001).

Although the victim did not testify that defendant penetrated her vaginally, a nurse testified that the victim told her at the hospital the night of the crime that the men had penetrated both her vagina and her rectum and the victim testified that defendant had committed all the same sex acts that the co-defendant had, which include vaginal penetration; thus, the evidence was sufficient to convict defend. State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

In a prosecution for first-degree statutory rape, under G.S. 14-27.2(a)(1), and second-degree forcible rape, under G.S. 14-27.3(a)(1), sufficient evidence was submitted showing that defendant was the perpetrator when the victim testified that defendant raped her and repeated this story to several people, so the denial of defendant’s motion to dismiss for lack of sufficient evidence that he was the perpetrator was proper, even though defendant presented evidence that he was not the perpetrator. State v. Bell, 159 N.C. App. 151, 584 S.E.2d 298, 2003 N.C. App. LEXIS 1432 (2003), cert. denied, 358 N.C. 733 , 601 S.E.2d 863, 2004 N.C. LEXIS 1013 (2004).

Although a nurse and doctor who examined an alleged rape victim testified that they did not find conclusive physical evidence that a sex act occurred, this medical testimony did not negate the victim’s testimony that defendant committed numerous sexual acts against her, which was corroborated by the forensic evidence; also, the State presented evidence of seminal fluid collected from the victim’s bedroom that matched defendant’s DNA. Therefore, the State presented sufficient evidence from which a jury could find that defendant committed first-degree statutory rape under G.S. 14-27.2(a)(1), first-degree sexual offense under G.S. 14-27.4(a)(1), and indecent liberties with a child under G.S. 14-202.1 . State v. Shepherd, 163 N.C. App. 646, 594 S.E.2d 439, 2004 N.C. App. LEXIS 581 (2004).

Defendant’s adjudication for first-degree attempted rape was affirmed and the trial court did not err in denying defendant’s motion to dismiss at the end of all the evidence, where: (1) defendant, who was 14 years old, told the victim, his 8-year-old step-sister, to come into his room; (2) when the victim entered the room, defendant pulled down her pants; (3) defendant then pulled down his own pants and touched the victim’s vagina with his penis; (4) when he heard his step-mother coming, defendant ran to his closet while pulling up his pants; (4) the step-mother found the victim under the covers in defendant’s bed not wearing pants or underwear; and (5) while the step-mother was in the room defendant hid in the closet. In re D.W., 171 N.C. App. 496, 615 S.E.2d 90, 2005 N.C. App. LEXIS 1358 (2005).

Trial court properly denied defendant’s motion to dismiss criminal charges against him; evidence that defendant forced the victim at knifepoint from the front of her home to a bedroom and then sexually assaulted her constituted sufficient evidence to satisfy the charge of kidnapping under G.S. 14-39(a), as well as the charge of rape under G.S. 14-27.2 and burglary under G.S. 14-51 . State v. Blizzard, 169 N.C. App. 285, 610 S.E.2d 245, 2005 N.C. App. LEXIS 680 (2005).

Complainant’s testimony that defendant’s penis penetrated her vagina “more than once” provided support for the rape charge provided sufficient evidence to support defendant’s conviction; thus, the denial of defendant’s motion to dismiss was proper. State v. Watson, 179 N.C. App. 228, 634 S.E.2d 231, 2006 N.C. App. LEXIS 1923 (2006).

Evidence supported defendant’s conviction for rape, statutory rape, sex offense, statutory sex offense, and sex offense in a parental role as: (1) defendant attacked the 14-year-old victim over a period of hours; (2) defendant’s expert testified that various wounds were inflicted while the victim was alive; (3) defendant raped the victim vaginally and anally while the victim was alive, leaving semen inside both her vagina and anus; (4) evidence from the victim’s lung tissue showed the victim was alive for a substantial period of time after the brain injury was inflicted; and (5) after hitting the victim in the head, defendant walked around thinking about how to cover up the crime, attempted to clean the victim up, and then sexually assaulted her body, all part of the same episode. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Victim’s testimony, corroborated by DNA evidence, that (1) defendant entered the victim’s vagina with his penis, (2) defendant forced himself upon the victim, (3) the victim fought defendant and made it known that the victim did not want to engage in sexual intercourse with defendant, (4) defendant hit the victim with a bottle, (5) defendant brandished a knife, and (6) defendant choked the victim to unconsciousness with his hands, was sufficient to support defendant’s conviction for first-degree rape. State v. Little, 188 N.C. App. 152, 654 S.E.2d 760, 2008 N.C. App. LEXIS 97 (2008).

Victim’s testimony that defendant possessed a shiny, silver object which the victim thought was a knife, together with defendant’s threatening behavior, was sufficient evidence that defendant displayed an article the victim reasonably believed was a dangerous weapon. Defendant’s threats were also sufficiently connected in time to the sexual acts. State v. Lawrence, 191 N.C. App. 422, 663 S.E.2d 898, 2008 N.C. App. LEXIS 1509 (2008), aff'd, 363 N.C. 118 , 678 S.E.2d 658, 2009 N.C. LEXIS 231 (2009).

Sufficient evidence supported defendant’s conviction of first degree rape, G.S. 14-27.2(a), as there was evidence of a mitochondrial DNA match between defendant’s parent and two hairs found in the victim’s bedroom. This evidence strongly suggested that the assailant was someone in the same maternal line as defendant’s parent, and defendant’s two brothers were in custody when the attack on the victim took place. State v. McAllister, 190 N.C. App. 289, 660 S.E.2d 247, 2008 N.C. App. LEXIS 832 (2008).

Evidence related to anal intercourse, from the victim’s journal entry and what statements she made to others, indicated that the sexual abuse by defendant began in 2001, and while the State purported to use the evidence to corroborate the victim’s testimony, it could not use the testimony for substantive purposes; although the State provided evidence of vaginal intercourse, such conduct was sufficient to support defendant’s first-degree rape conviction, not a first-degree sex offense, and thus State failed to provide substantial evidence of a first-degree sex offense in 2001. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Victim’s in-court testimony showed that in 2004 and 2005, defendant engaged in vaginal intercourse with her on numerous occasions, and such conduct was sufficient evidence of first-degree rape; although her journal entry and other witness testimony about statements she made indicated that defendant committed a sexual act through anal intercourse, there is no substantive evidence that during this time period, defendant committed a sexual act, and the State failed to provide substantial substantive evidence of a sexual act for the first-degree sex offense charges. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

State proved intent in an attempted first-degree forcible rape trial because defendant’s forcing the victim to undress at knife point and then stabbing her when she refused to approach constituted an overt act manifesting a sexual purpose or motivation. State v. Owen, 159 N.C. App. 204, 582 S.E.2d 689, 2003 N.C. App. LEXIS 1443 (2003).

State presented sufficient evidence to withstand defendant’s motion to dismiss his first-degree rape charge, and therefore the trial court did not err by denying the motion, because the victim’s friend identified defendant as the man he saw the victim with 30 minutes before the assault, two eyewitnesses identified defendant as the man they pulled off of the victim, and officer saw defendant running away from the scene and being chased by one eyewitness and another man, and debris and hair were found inside the victim. State v. White, 261 N.C. App. 506, 820 S.E.2d 116, 2018 N.C. App. LEXIS 904 (2018).

Evidence Held Insufficient. —

Evidence of defendant’s intent was, at most, ambiguous where, as vicious as the attack was, the only suggestion of a sexual component was defendant’s persistent attempts to have the victim roll onto her stomach; while defendant’s behavior allowed speculation as to why he wanted the victim prone rather than supine or on her side, this behavior was not substantial evidence allowing a reasonable conclusion that defendant had an intent to gratify his passion on the victim notwithstanding her resistance. State v. Walker, 139 N.C. App. 512, 533 S.E.2d 858, 2000 N.C. App. LEXIS 986 (2000).

Evidence Insufficient to Support Sentence. —

While defendant assumed a leadership position in committing the offenses of kidnapping and rape, there was insufficient evidence that defendant acted with more than one other person or that defendant was in a position of trust and confidence with the victim; thus, the trial court’s imposition of a sentence in excess of the presumptive range was erroneous and an abuse of discretion. State v. Rogers, 157 N.C. App. 127, 577 S.E.2d 666, 2003 N.C. App. LEXIS 368 (2003).

XIV.Instructions

Failure to Instruct as to Force. —

An instruction which fails to charge that the carnal knowledge of the prosecutrix must have been accomplished by force and against her will to constitute the crime of rape must be held reversible error. State v. Simmons, 228 N.C. 258 , 45 S.E.2d 121, 1947 N.C. LEXIS 593 (1947).

Failure to Charge on Lesser Offense Proper. —

The court’s failure to charge the jury on a lesser crime than rape as principals and to submit guilt of a lesser offense as a permissible verdict was not error since there was no evidence from which the jury could find that any defendant committed an included crime of lesser degree. State v. Dawson, 281 N.C. 645 , 190 S.E.2d 196, 1972 N.C. LEXIS 1158 (1972).

Where there was no evidence of any included lesser offenses embraced within the indictments for rape and kidnapping, the court was under no duty to charge on lesser included offenses. State v. Bynum, 282 N.C. 552 , 193 S.E.2d 725, 1973 N.C. LEXIS 1107 , cert. denied, 414 U.S. 836, 94 S. Ct. 182, 38 L. Ed. 2d 72, 1973 U.S. LEXIS 463 (1973), cert. denied, 414 U.S. 869, 94 S. Ct. 182, 38 L. Ed. 2d 116, 1973 U.S. LEXIS 827 (1973).

The trial court did not err in failing to submit the lesser included offenses of assault with intent to commit rape and assault on a female where all the State’s evidence tended to show commission of rape and the defendant’s evidence was that he had never had intercourse with the prosecutrix nor did he touch her in a manner constituting an assault. State v. Lampkins, 286 N.C. 497 , 212 S.E.2d 106, 1975 N.C. LEXIS 1245 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216, 1976 U.S. LEXIS 2277 (1976).

Where all the evidence in a prosecution for rape revealed a completed act of sexual intercourse and the only dispute between the State and the defendant was whether the act was accomplished by consent or by force, there was no necessity to submit the lesser included offenses of assault with intent to commit rape and assault on a female. State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977); State v. Edmondson, 302 N.C. 169 , 273 S.E.2d 659, 1981 N.C. LEXIS 1028 (1981).

Where all the State’s evidence indicated that vaginal penetration of the victim by defendant took place after he showed her a knife and that the victim was in fear for her life, while defendant’s evidence was that he entered victim’s home at her invitation and that the act of sexual intercourse occurred with victim’s consent, there was no evidence of second degree rape, and no instruction thereon was required. State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Where there was no evidence to support a verdict of rape in the second degree, all of the evidence showing either rape in the first degree or no rape at all, the trial judge was not required to submit the lesser offense. State v. Kinch, 314 N.C. 99 , 331 S.E.2d 665, 1985 N.C. LEXIS 1710 (1985).

In a trial for first-degree rape when all the evidence tended to show that the accused committed the crime with which he was charged and there was no evidence of guilt of the lesser-included offense of attempted first-degree rape, the court correctly refused to charge on the unsupported lesser offense. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

In a first-degree rape case, where the State introduced sufficient evidence of vaginal penetration through the victim’s testimony to permit a rational jury to find beyond a reasonable doubt that defendant engaged in forced intercourse with the victim, there was no error in the court’s refusal to instruct on lesser included offenses. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658, 1988 N.C. App. LEXIS 1067 (1988).

Although defendant contended that there was “substantial doubt” that he employed or used a dangerous or deadly weapon in the commission of rape, any “doubt” on this issue was for the jury to resolve; therefore, there being no evidentiary basis on which to submit second-degree rape charges to the jury, the trial court properly denied defendant’s request therefor. State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214, 1989 N.C. App. LEXIS 1027 (1989), cert. denied, dismissed, 327 N.C. 485 , 397 S.E.2d 227, 1990 N.C. LEXIS 851 (1990).

Pursuant to G.S. 15-144.1 , trial court properly declined to instruct a jury regarding assault on a female. Conduct that defendant relied on as supporting the assault charge was unrelated to the conduct supporting the first degree rape conviction, under G.S. 14-27.2 ; however, that conduct supported the G.S. 14-39 kidnapping conviction. State v. Thomas, 196 N.C. App. 523, 676 S.E.2d 56, 2009 N.C. App. LEXIS 520 (2009).

When Instructions on Lesser Included Offense Are Warranted. —

Instructions on the lesser included offenses of first-degree rape are warranted only when there is some doubt or conflict concerning the crucial element of penetration. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Instructions on the lesser included offenses of first-degree rape are warranted only when there is some doubt or conflict concerning crucial elements of the offense. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658, 1988 N.C. App. LEXIS 1067 (1988).

Where the evidence in the record only tended to establish that defendant raped his minor niece, the court did not err in denying defendant’s requested instruction on attempted first degree rape. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

When Charge on Lesser Included Offense Not Warranted. —

When the State seeks a conviction only on the greater offense and tries the case on an “all or nothing basis,” the trial court needs to present an instruction on the lesser offense only when the defendant presents evidence thereof or when the State’s evidence is conflicting; hence, in case in which the State proceeded on an “all or nothing basis” in prosecution of defendant for first-degree sexual offense and first-degree rape of two year old, the trial court did not err in refusing to instruct the jury on attempted first-degree rape and attempted first-degree sexual assault. State v. Ward, 118 N.C. App. 460, 455 S.E.2d 666 (1995).

When Charge on Attempted Rape Is Warranted. —

Instructions pertaining to attempted first-degree rape as a lesser included offense of first-degree rape are warranted when the evidence pertaining to the crucial element of penetration conflicts, or when, from the evidence presented, the jury may draw conflicting inferences. State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

When Charge of Attempted Rape Not Required. —

Where there is evidence of some penetration sufficient to support a conviction of rape and defendant denies having had any sexual relations with the victim, defendant is not entitled to a charge of attempted rape. State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Where defendant’s confession was the only evidence introduced at trial establishing his participation in the gang rape of an 11-year old victim, the trial court correctly refused to instruct the jury on attempted rape. State v. Brown, 112 N.C. App. 390, 436 S.E.2d 163, 1993 N.C. App. LEXIS 1139 (1993), aff'd, 339 N.C. 606 , 453 S.E.2d 165, 1995 N.C. LEXIS 22 (1995).

Defendants were not entitled to a jury instruction on second-degree rape where the State’s evidence tended to prove a first-degree rape, and defendants’ evidence did not conflict with the State’s evidence as to whether each defendant aided and abetted the other, but instead, was itself sufficient to support the jury in finding the element of aiding and abetting, by acts of encouragement and protection, and conflicted with the State’s evidence only on the issue of consent. State v. Amerson, 316 N.C. 161 , 340 S.E.2d 98, 1986 N.C. LEXIS 1917 (1986).

Defendant was not entitled to an instruction on the lesser included offense of second-degree rape, where he had an open knife in his hand or lying in the open easily within his reach during all times pertinent to his act of sexual intercourse with the victim, the evidence would not support a reasonable finding that the victim was not aware of the knife, and defendant’s statement to a police officer only amounted to a description of how he employed or displayed the knife, not a denial that he had employed or displayed a knife. State v. Langford, 319 N.C. 332 , 354 S.E.2d 518, 1987 N.C. LEXIS 1931 (1987).

Defendant’s mere failure to recollect whether he had knife open during rape created no conflict with victim’s clear and unequivocal testimony that he held the open knife to her throat. Nor was a conflict created in the evidence by victim’s response on cross-examination to the question of whether she actually saw a knife or whether the knife was “just mentioned,” as taking her answer in light of her other testimony concerning the knife, it was clear that she answered, in effect, that the knife was not “just mentioned,” and that she actually saw the knife as defendant brought it to her throat. In fact, victim was even able to estimate the length of the open blade before it was placed to her throat. Therefore, defendant was not entitled to an instruction on the lesser offense of second-degree rape. State v. Langford, 319 N.C. 340 , 354 S.E.2d 523, 1987 N.C. LEXIS 1923 (1987).

Instruction on Lesser-Included Offense Properly Denied. —

Where both defendant and the victim agreed that weapons were displayed during the altercation, and the only fact in dispute was whether the sex was consensual; the trial court correctly denied the instruction to charge on a lesser-included offense. State v. Mustafa, 113 N.C. App. 240, 437 S.E.2d 906, 1994 N.C. App. LEXIS 4 , cert. denied, 336 N.C. 613 , 447 S.E.2d 409, 1994 N.C. LEXIS 319 (1994).

Because there was no dispute as to the age of defendant, but, rather, defendant contended that he did not commit the crime of rape of a child, under plain error review, the trial court did not err in failing to instruct the jury upon the lesser offense of first-degree rape. State v. Agustin, 229 N.C. App. 240, 747 S.E.2d 316, 2013 N.C. App. LEXIS 881 (2013).

Lesser Offenses Improperly Submitted to Jury. —

In prosecutions for rape, when all the evidence tended to show a completed act of intercourse and the only issue was whether the act was with the prosecuting witness’s consent or by force and against her will, it was not proper to submit to the jury lesser offenses included within a charge of rape. State v. Davis, 291 N.C. 1 , 229 S.E.2d 285, 1976 N.C. LEXIS 931 (1976).

Instruction on “Use of Deadly Weapon”. —

The State is only required to show that defendant possessed a deadly or dangerous weapon at the time of the rape and that the victim was aware of the presence of the weapon because it had been displayed or employed; therefore, although the trial court’s instruction did not emphasize the victim’s awareness of the weapon, the instruction made clear that the State was required to prove that the weapon was displayed in some fashion, and there was no error. State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383, 1989 N.C. App. LEXIS 464 (1989).

Appellate court affirmed defendant’s first-degree rape conviction, where defendant did not object to the jury instruction, because, even if the trial court erred by instructing the jury that a knife was a dangerous weapon as a matter of law, the trial court’s instruction did not amount to plain error as, in light of the entire record, particularly the victim’s testimony that she knew it was a knife that defendant took from his pocket, that she asked him not to hurt her upon seeing the knife, and that she was scared, the jury likely would have found that the victim reasonably believed the knife to be a dangerous or deadly weapon. State v. Cartwright, 177 N.C. App. 531, 629 S.E.2d 318, 2006 N.C. App. LEXIS 1076 (2006).

Withdrawal of Request for Instructions Held Voluntary. —

Defendant on trial for first-degree rape and first-degree sexual offense was not forced by any erroneous ruling of the trial court to withdraw his request for instructions; accordingly, the defendant’s withdrawal of his request for instructions on involuntary commitment was voluntary and not improperly coerced by a mistaken ruling of the trial court. State v. Coppage, 94 N.C. App. 630, 381 S.E.2d 169, 1989 N.C. App. LEXIS 623 (1989).

Instruction on Defendant’s Admission as to Presence. —

In a prosecution for first-degree rape where the trial court instructed that the defendant’s admission that he was in the car with the rape victim could be considered by the jury as an admission of a fact relating to the crime charged, there was no merit to defendant’s contention that such instruction could have led the jury to believe that his mere presence was sufficient for conviction and that he had therefore committed the crime, since the trial court’s instructions made clear what the jury must find in order to convict defendant. State v. Hammonds, 301 N.C. 713 , 272 S.E.2d 856, 1981 N.C. LEXIS 1023 (1981).

Prejudicial Expression of Opinion by Judge. —

The trial judge committed prejudicial error by expressing his opinion on the evidence when he instructed the jury that there was “considerable evidence” that defendant had committed the crime charged, and when he further went on to say “not satisfied with that, the evidence tends to show that he, the defendant, again had intercourse with her” intimating to the jury that it was his opinion that the defendant was guilty. State v. Head, 24 N.C. App. 564, 211 S.E.2d 534, 1975 N.C. App. LEXIS 2432 (1975).

Instructions Permitting Conviction of Both Defendants If One Found Guilty. —

Where jury instructions in case in which two defendants were jointly tried for rape and murder were susceptible to the construction that the jury should convict both if it found one guilty, defendants would be granted a new trial as to the charges against them. State v. McCollum, 321 N.C. 557 , 364 S.E.2d 112, 1988 N.C. LEXIS 11 (1988).

Failure to Instruct on Corroborative Evidence. —

Where the evidence clearly showed that defendant engaged in sexual acts with child on more than one occasion, the State focused the child’s testimony on the incident in question and made it clear that defendant was charged for committing that act, and the jury was charged solely as to this incident, there was no prejudicial error in failing to instruct on corroborative evidence. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544 , 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

Instruction on Serious Injury Held Not Error. —

In prosecution for first-degree rape and first-degree sexual offense, the trial court did not err in instructing the jury on the element of serious injury, where the trial court corrected its instructions on the mental element of serious injury when the lack of any evidence tending to show mental injury was drawn to the court’s attention, and the trial court then specifically instructed the jury that there was no evidence of mental injury in the present case and that the jury’s sole consideration was whether there was serious bodily injury. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Trial court did not err by instructing the jury that it could find the victim suffered a “serious personal injury” in the form of a mental injury because the State presented substantial evidence that defendant inflicted bodily harm upon the victim as he attempted to overcome her resistance; the victim sustained extensive bruises and abrasions to most of the left side of her body, and it was for the jury to determine whether the victim sustained a serious personal injury. State v. Gentle, 260 N.C. App. 269, 817 S.E.2d 833, 2018 N.C. App. LEXIS 641 (2018), aff'd, 372 N.C. 47 , 822 S.E.2d 616, 2019 N.C. LEXIS 51 (2019).

Even assuming that there was no evidence to support the trial court’s instruction on mental injury, defendant failed to meet his burden of showing that the alleged error had any probable impact on the jury’s verdict because the jurors unanimously affirmed their verdict after defense counsel requested that they be individually polled; during deliberations, the jury requested to review pictures of the victim’s personal injuries. State v. Gentle, 260 N.C. App. 269, 817 S.E.2d 833, 2018 N.C. App. LEXIS 641 (2018), aff'd, 372 N.C. 47 , 822 S.E.2d 616, 2019 N.C. LEXIS 51 (2019).

No Error In Failing To Give Instruction On Voluntary Intoxication Not Error. —

Trial court was not required to instruct the jury on voluntary intoxication because defendant, who was convicted of first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1 did not present evidence to support a conclusion that, at the time the acts were committed, his mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming the requisite intent; the jury heard evidence from the State showing that defendant made careful plans to be alone with the child, and in at least one instance, tricked her into coming out of her room after she had locked herself away from him. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

No Plain Error. —

In defendant’s trial for first-degree rape and first-degree sex offense, the trial court did not commit plain error in referring to the victim as the victim during jury instructions, as case law held that the use of that term did not constitute plain error in instructions, plus it was not found that the term had a probable impact on the jury’s finding of guilt. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Invited Error on Instruction. —

In defendant’s trial for first-degree rape and first-degree sex offense, defendant’s attorney actively participated in crafting the trial court’s response to the jury question, agreed with the trial court’s interpretation that a penis could be considered an “object,” and denied the trial court’s proposed clarification between vaginal intercourse and a sexual act, and thus defendant invited any error stemming from the trial court’s instructions. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Instruction Held Proper. —

Where instruction given in first-degree rape case was essentially the pattern jury instruction in N.C.P.I. — Crim. 101.36, there was no error, under the “plain error” doctrine or otherwise. State v. Ayers, 92 N.C. App. 364, 374 S.E.2d 428, 1988 N.C. App. LEXIS 1044 (1988).

Instructions as to state’s burden in proving first-degree rape, and on the consequences of jury’s finding that defendant was insane at the time he perpetrated the crime, were held proper. State v. Coppage, 94 N.C. App. 630, 381 S.E.2d 169, 1989 N.C. App. LEXIS 623 (1989).

Trial court did not err in declining to instruct the jury on attempted first degree rape where there was no evidence that defendant merely attempted to rape the victim and all of the State’s evidence tended to show that defendant penetrated the victim. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419, 1989 N.C. App. LEXIS 814 (1989).

Trial court properly instructed the jury that it could find defendant guilty of the crimes of first-degree rape and first degree sexual offense if it found that defendant either displayed a dangerous or deadly weapon or was aided and abetted by one or more other persons during their commission, pursuant to G.S. 14-27.2(a)(2)(a) and (c) and G.S. 14-27.4(a)(2)(a) and (c). State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

Defendant’s convictions for first-degree rape of a child under the age of 13, in violation of G.S. 14-27.2(a)(1), were affirmed because the trial court properly instructed the jury on all 11 counts as its charge on the initial instruction on the elements of first-degree rape applied to all 11 counts. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Instruction Held Improper. —

In a case in which the defendant and an accomplice raped a woman, defendant was entitled to a new trial on the charge of first degree rape by acting in concert with someone else because the jury instruction referred to guilt both as a principle and by acting in concert, which allowed the jury to convict defendant twice for the same crime, in violation of double jeopardy rights. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560, 2007 N.C. App. LEXIS 2574 (2007), rev'd in part, 362 N.C. 340 , 663 S.E.2d 311, 2008 N.C. LEXIS 490 (2008).

XV.Attempt.

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 14-27.6 or other prior provisions.

Assault with Intent to Commit Rape Under Former G.S. 14-22. —

See State v. Harris, 277 N.C. 435 , 177 S.E.2d 865, 1970 N.C. LEXIS 628 (1970); State v. Hudson, 280 N.C. 74 , 185 S.E.2d 189, 1971 N.C. LEXIS 1093 (1971); State v. Norman, 14 N.C. App. 394, 188 S.E.2d 667, 1972 N.C. App. LEXIS 2138 (1972); State v. Young, 16 N.C. App. 101, 191 S.E.2d 369, 1972 N.C. App. LEXIS 1648 (1972); State v. Rice, 18 N.C. App. 575, 197 S.E.2d 245, 1973 N.C. App. LEXIS 1943 , cert. denied, 283 N.C. 757 , 198 S.E.2d 727, 1973 N.C. LEXIS 1093 (1973); State v. Dais, 22 N.C. App. 379, 206 S.E.2d 759, 1974 N.C. App. LEXIS 2339 , cert. denied, 285 N.C. 664 , 207 S.E.2d 758, 1974 N.C. LEXIS 1101 (1974); State v. Webb, 26 N.C. App. 526, 216 S.E.2d 382, 1975 N.C. App. LEXIS 2101 , cert. denied, 288 N.C. 251 , 217 S.E.2d 676, 1975 N.C. LEXIS 966 (1975); State v. Bradshaw, 27 N.C. App. 485, 219 S.E.2d 561, 1975 N.C. App. LEXIS 1883 (1975), cert. denied, 289 N.C. 299 , 222 S.E.2d 699, 1976 N.C. LEXIS 1273 (1976); State v. Giles, 34 N.C. App. 112, 237 S.E.2d 305, 1977 N.C. App. LEXIS 1590 (1977); State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978); State v. Little, 51 N.C. App. 64, 275 S.E.2d 249, 1981 N.C. App. LEXIS 2191 (1981).

Elements of Proof. —

In order to prove the offense set forth in former G.S. 14-27.6 , the State must prove that an accused had the intent to commit the crime and committed an act that goes beyond mere preparation, but falls short of actual commission of the offense. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982); State v. Moser, 74 N.C. App. 216, 328 S.E.2d 315, 1985 N.C. App. LEXIS 3450 (1985); State v. Harris, 319 N.C. 383 , 354 S.E.2d 222, 1987 N.C. LEXIS 1930 (1987).

An attempt to commit rape has the elements of (1) an intent to commit rape, and (2) an overt act done for that purpose, which goes beyond mere preparation, but falls short of the completed offense. State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810, 1987 N.C. App. LEXIS 2390 , cert. denied, 319 N.C. 408 , 354 S.E.2d 724, 1987 N.C. LEXIS 2007 (1987).

Before a defendant may be convicted of attempted rape, the State must prove, beyond a reasonable doubt, that the defendant: (1) had the specific intent to rape the victim, and (2) committed an act which went beyond mere preparation but fell short of the actual commission of the rape. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987); State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Intent is an essential element of attempted rape. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

State Must Show Substantial Evidence of Defendant’s Intent. —

Although to prove the charge of attempted first-degree rape the State is not required to show an actual physical attempt to have sexual intercourse with the victim, there must be substantial evidence that defendant had the intent to gratify his passion upon the victim notwithstanding any resistance on her part. State v. Nicholson, 99 N.C. App. 143, 392 S.E.2d 748, 1990 N.C. App. LEXIS 468 (1990) (holding evidence insufficient to convict defendant of attempted first-degree rape) .

Proof of Intent to Rape. —

To show an intent to rape, the State must prove that defendant intended to have sexual intercourse with the victim notwithstanding any resistance on her part. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

Sexually motivated assaults may give rise to an inference that defendant intended to rape his victim, notwithstanding that other inferences are also possible. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987); State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

State Need Not Show Actual Physical Attempt to Have Intercourse. —

To convict a defendant of attempted rape, the State is not required to show that he made an actual physical attempt to have intercourse. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

The element of intent is established if the evidence shows that defendant, at any time during the incident, had an intent to gratify his passion upon the victim, notwithstanding any resistance on her part. It is not necessary that defendant retain the intent throughout the incident. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988); State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

The State need not show that the defendant made an actual physical attempt to have intercourse or that he retained the intent to rape his victim throughout the incident. State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

It is sufficient if defendant has the intent to rape at any point during the assault, and it need not be shown that he made an actual, physical attempt to have intercourse. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

The element of intent is established if the evidence shows that defendant, at any time during the incident, had an intent to gratify his passion upon the victim, notwithstanding any resistance on her part. It is not necessary that defendant retain the intent throughout the incident. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Conviction Under Former G.S. 14-27.6 and G.S. 14-32 Not Double Jeopardy. —

In a criminal prosecution defendant was not subjected to double jeopardy where he was charged and convicted of assault with a deadly weapon with intent to kill inflicting serious injury and attempt to commit first-degree rape, though both crimes arose from the same series of events, since each offense charged included an element not common to the other offense. State v. Glenn, 51 N.C. App. 694, 277 S.E.2d 477, 1981 N.C. App. LEXIS 2301 (1981).

Intoxication may be a valid defense to the crime of attempted rape. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Attempted Rape of Child. —

In order to prove attempted first degree rape of three and a half year old, the State had to show that victim was 12 years old or less, that defendant was at least 12 years old and at least four years older than victim, that defendant had the intent to engage in vaginal intercourse with victim, and that defendant committed an act that went beyond mere preparation but fell short of actual commission of intercourse. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110, 1985 N.C. App. LEXIS 4330 (1985).

To support a conviction for breaking or entering and attempted first-degree rape, the State’s evidence must show that defendant broke or entered the victim’s home with the intent to commit the felony of rape. In addition, the State’s evidence must show that defendant had the intent to commit the crime of rape as defined by G.S. 14-27.2 and that defendant committed an act which went beyond mere preparation, but fell short of the actual completion of the offense. State v. Parks, 77 N.C. App. 778, 336 S.E.2d 424, 1985 N.C. App. LEXIS 4368 (1985).

Admissibility of Other Acts Establishing Pattern of Conduct. —

In a prosecution for attempted rape by defendant of his stepdaughter, testimony which tends to show that defendant systematically engaged in nonconsensual sexual relations with his stepdaughters as they matured physically, a pattern of conduct embracing the offense charged, is properly admitted. State v. Goforth, 59 N.C. App. 504, 297 S.E.2d 128, 1982 N.C. App. LEXIS 3140 (1982).

Admissibility of Prior Conviction. —

Evidence of defendant’s prior conviction in 1977 for assault with intent to rape, as well as his recent release from prison, offered to prove that his intent in assaulting and kidnapping his victim was to rape her, was properly admitted for that purpose in trial for kidnapping and attempted rape. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

Instructions pertaining to attempted first-degree rape as a lesser included offense of first degree rape are warranted when the evidence pertaining to the crucial element of penetration conflicts or when, from the evidence presented, the jury may draw conflicting inferences. State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

An attempt instruction is not warranted merely because there is no medical evidence of penetration or other physical symptoms, as long as there is sufficient evidence of completed acts of fellatio and anal intercourse. State v. Callahan, 86 N.C. App. 88, 356 S.E.2d 403, 1987 N.C. App. LEXIS 2658 (1987).

The fact that defendant verbally manifested his intent to rob the victim when he first grabbed hold of her did not exclude a reasonable inference by the jury that once defendant learned that the victim had no money, he formed the intent to gain some other gratification from the situation. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Evidence Held Sufficient. —

The evidence supported a reasonable inference that defendant removed his victim for the purpose of facilitating an attempt to rape her, where he grabbed her by the throat, ordered her to drive to a secluded, deserted parking lot beside a bus and turn off her taxi’s lights, he commanded her to pull her pants down to her knees and inquired about her underclothing, and he stated his intent to commit at least one manner of sexual attack on her, not necessarily to the exclusion of any other. The jury could have reasonably inferred that, but for the victim’s ingenuity and courage, she would have been subjected to attempted forcible sexual intercourse. State v. Whitaker, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

Evidence held sufficient to allow a jury to infer that defendant intended to rape his victim. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

Evidence of 20-year-old defendant’s action with nine-year-old child was sufficient to support the jury’s verdict that defendant was guilty of attempted first-degree rape, even though he stopped when she started to cry. State v. Griffin, 319 N.C. 429 , 355 S.E.2d 474, 1987 N.C. LEXIS 2026 (1987).

Testimony of victim that defendant dragged her down a hallway toward a guest bedroom, put his hand down over her shoulder and down the front of her shirt, and grabbed her breasts was sufficient circumstantial evidence from which the jury could infer defendant’s intent to engage in vaginal intercourse with the victim by force and against her will. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Where defendant grabbed the victim from behind; dragged her several feet; forced her to the ground, covering her mouth with hand; and proceeded to fondle her without her consent, desisting only after she kicked his groin area, this was ample evidence to support an inference that defendant, at some point during the attack, intended to forcibly rape the victim despite her resistance. State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

Where the defendant was playing with his pants zipper prior to the attack and during the attack he fumbled with the victim’s shorts and then began rubbing her crotch, this constituted sufficient evidence of overt sexual behavior from which the jury could properly infer, notwithstanding the possibility of other inferences, that defendant intended to engage in vaginal intercourse with his victim. State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

Charge Improper. —

It was error for the Court of Appeals to hold the lesser included offense of attempted second degree rape should have been submitted where the State submitted positive evidence of every element of the crime and the defendant testified that the event was consensual. If the jury had believed the defendant’s evidence, he would have been found not guilty; the defendant did not present evidence of a lesser included offense. State v. Nelson, 341 N.C. 695 , 462 S.E.2d 225, 1995 N.C. LEXIS 529 (1995).

Sufficiency of Evidence to Support Felony Murder Charge. —

Evidence as to the position of the victim’s legs and evidence of the removal of clothes from the lower part of the victim’s body was sufficient, with other evidence, to be submitted to the jury on a charge of felony murder when the underlying felony was attempted rape. State v. Harris, 319 N.C. 383 , 354 S.E.2d 222, 1987 N.C. LEXIS 1930 (1987).

§ 14-27.22. Second-degree forcible rape.

  1. A person is guilty of second-degree forcible rape if the person engages in vaginal intercourse with another person:
    1. By force and against the will of the other person; or
    2. Who has a mental disability or who is mentally incapacitated or physically helpless, and the person performing the act knows or should reasonably know the other person has a mental disability or is mentally incapacitated or physically helpless.
  2. Any person who commits the offense defined in this section is guilty of a Class C felony.
  3. Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child conceived during the commission of the rape, nor does the person have any rights related to the child under Chapter 48 of the General Statutes or Subchapter I of Chapter 7B of the General Statutes.

History. 1979, c. 682, s. 1; 1979, 2nd Sess., c. 1316, s. 5; 1981, cc. 63, 179; 1993, c. 539, s. 1130; 1994, Ex. Sess., c. 24, s. 14(c); 2002-159, s. 2(b); 2004-128, s. 8; 2015-181, s. 4(a), (b); 2018-47, s. 4(b).

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

As to essentials of bill of indictment for rape, see G.S. 15-144.1 .

As to venue of trial of sex offenses where victim was transported, see G.S. 15A-136 .

As to office of coordinator of services for victims of sexual assault, see G.S. 143B-394.1 et seq.

Editor’s Note.

This section was formerly codified as G.S. 14-27.3 . It was recodified as G.S. 14-27.22 by Session Laws 2015-181, s. 4(a), effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 4(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 4(b), effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2004-128, s. 8, effective December 1, 2004, and applicable to offenses committed on or after that date, added subsection (c).

Session Laws 2015-181, s. 4(b), effective December 1, 2015, inserted “forcible” in the section heading and substituted “second degree forcible rape” for “rape in the second-degree” in subsection (a). For applicability, see editor’s note.

Session Laws 2018-47, s. 4(b), rewrote subdivision (a)(2); and in subsection (c), substituted “does” for “shall” and “Subchapter I” for “Subchapter 1,” and added “of the General Statutes” following “Chapter 48.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For comment, “The Use of Rape Trauma Syndrome as Evidence in a Rape Trial: Valid or Invalid?”, see 21 Wake Forest L. Rev. 93 (1985).

For note discussing whether sex with a sleeping woman meets the requirements of force and lack of consent, see 65 N.C.L. Rev. 1246 (1987).

For note entitled, “Michigan v. Lucas: Failure to Define the State Interest in Rape Shield Legislation,” see 70 N.C.L. Rev. 1592 (1992).

For survey on constructive force as an element of second-degree rape, see 70 N.C.L. Rev. 2027 (1992).

For note, “Serious Personal Injury Requirement for Rape Is Met by Mental Injury Alone — State v. Baker,” see 21 N.C. Cent. L.J. 368 (1995).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Some of the annotations under this section are from cases decided under former similar statutory provisions.

Not Categorically Crime of Violence Under Federal Sentencing Guidelines Manual § 4B1.2. —

Defendant’s prior conviction for North Carolina second-degree rape was not categorically crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2; because district court erred in characterizing his prior conviction as crime of violence and thereby enhancing his base offense level for illegally possessing firearm, court vacated his sentence and remanded for resentencing. United States v. Shell, 789 F.3d 335, 2015 U.S. App. LEXIS 9885 (4th Cir. 2015).

First and Second-Degree Rape Distinguished. —

The sole distinction between the crimes of first and second-degree rape is the element of the use of a deadly weapon or aiding and abetting. If serious bodily injury is inflicted, the crime is also first-degree rape. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

While serious injury can be used to support a first-degree rape conviction, this element is not required for a conviction of second-degree rape. Mental injuries associated with the crime are sufficient to make a crime first degree rape, but they must be associated with the rape, but the State must prove that the defendant caused the harm, that it extended for some appreciable period of time beyond the incidents surrounding the crime itself, and that the harm was more than the “res gestae” results present in every forcible rape. State v. Finney, 358 N.C. 79 , 591 S.E.2d 863, 2004 N.C. LEXIS 10 (2004).

Custodial Sexual Offense Distinguished. —

Second-degree rape and second-degree sexual offense require an act by force and against the will of another person; custodial sexual offense does not. Custodial sexual offense requires that the perpetrator, or the perpetrator’s principal or employer, have custody of the victim; second-degree rape and second-degree sexual offense do not. Custodial sexual offense thus requires proof of a fact which second-degree rape and second-degree sexual offense do not, and both second-degree rape and second-degree sexual offense require proof of a fact which custodial sexual offense does not. Double jeopardy considerations thus are not implicated. State v. Raines, 319 N.C. 258 , 354 S.E.2d 486, 1987 N.C. LEXIS 1932 (1987).

Contributing to Delinquency of a Minor Is Separate Crime. —

Even though the crimes of second-degree rape and contributing to the delinquency of a minor are related in character and grow out of the same transaction, they are legally distinct and separate crimes. The prosecution for one is not a bar to a prosecution for the other. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

And Is Not a Lesser Included Offense of Second-Degree Rape. —

The act of sexual intercourse is not inherent to the crime of contributing to the delinquency of a minor under G.S. 14-316.1 . Therefore, this offense is not a lesser included offense of second-degree rape pursuant to this section. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Discretion as to the punishment for rape in the second degree is vested in the trial court, not the Supreme Court. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

Sentencing Factors. —

Where a defendant has been charged with rape in the first degree under subdivision (a)(1) of G.S. 14-27.2 but has pled guilty to rape in the second degree under subdivision (a)(2) of this section, if the sentencing judge concludes by a preponderance of the evidence that the defendant had used a gun during the rape, this would be a factor that must be considered in deciding whether to sentence the defendant beyond the presumptive term for the admitted offense. State v. Melton, 307 N.C. 370 , 298 S.E.2d 673, 1983 N.C. LEXIS 1085 (1983).

Because the age of the victim is not a necessary element of second-degree rape, and a determination by a preponderance of the evidence in the sentencing phase that the defendant raped a 11-year-old child is reasonably related to the purpose of sentencing, the age of a victim under 13 may be considered as a nonstatutory aggravating factor in sentencing for second-degree rape. State v. Vanstory, 84 N.C. App. 535, 353 S.E.2d 236, 1987 N.C. App. LEXIS 2528 (1987), disapproved, State v. Farlow, 336 N.C. 534 , 444 S.E.2d 913, 1994 N.C. LEXIS 291 (1994).

Construction with Other Provisions. —

The acts of having or attempting to have sexual intercourse with another person who is mentally defective or incapacitated and statutorily deemed incapable of consenting involve the “use or threat of violence to the person” within the meaning of G.S. 15A-2000(e)(3). State v. Holden, 338 N.C. 394 , 450 S.E.2d 878, 1994 N.C. LEXIS 709 (1994).

Sufficiency of Indictment. —

The indictment upon which defendant was tried charged common-law rape, and its language was clearly sufficient to embrace second-degree rape as defined by this section. State v. Davis, 291 N.C. 1 , 229 S.E.2d 285, 1976 N.C. LEXIS 931 (1976).

Where G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1), the statutes defining second-degree rape and second-degree sexual offense, required the offenses to be against “another person,” the indictments charging these offenses did not need to state the victim’s full name, nor did they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Therefore, the test in Coker, that a person of common understanding would know the intent of the indictments, was met. State v. McKoy, 196 N.C. App. 650, 675 S.E.2d 406, 2009 N.C. App. LEXIS 533 (2009), cert. dismissed, 365 N.C. 339 , 731 S.E.2d 835, 2011 N.C. LEXIS 1168 (2011), cert. dismissed, 366 N.C. 405 , 735 S.E.2d 329, 2012 N.C. LEXIS 1131 (2012).

An indictment which charged that the defendant “did, unlawfully, willfully and feloniously ravish and carnally know, by force and against her will,” the prosecuting witness, a female, charged all of the elements of second-degree rape. State v. Perry, 291 N.C. 586 , 231 S.E.2d 262, 1977 N.C. LEXIS 1223 (1977).

Where the statutes defining second-degree rape and second-degree sexual offense (G.S. 14-27.3 and G.S. 14-27.5 ) require the offenses to be against “another person,” the indictments charging these offenses do not need to state the victim’s full given name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. An indictment for a statutory offense is generally sufficient when it charges the offense in the language of the statute. State v. McKoy, 196 N.C. App. 650, 675 S.E.2d 406, 2009 N.C. App. LEXIS 533 (2009), cert. dismissed, 365 N.C. 339 , 731 S.E.2d 835, 2011 N.C. LEXIS 1168 (2011), cert. dismissed, 366 N.C. 405 , 735 S.E.2d 329, 2012 N.C. LEXIS 1131 (2012).

Indictment Upheld. —

While it would have been the better practice for the indictment to simply charge the defendant with the intent to commit second-degree rape, charging intent to commit attempted second-degree rape is not fatally defective. State v. Whitaker, 76 N.C. App. 52, 331 S.E.2d 752, 1985 N.C. App. LEXIS 3810 (1985), aff'd in part and rev'd in part, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

Indictments tracked the statutory language of G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1). Therefore, “RTB” was sufficient to inform defendant that he was charged with second-degree rape and second-degree sexual offense against “another person.” State v. McKoy, 196 N.C. App. 650, 675 S.E.2d 406, 2009 N.C. App. LEXIS 533 (2009), cert. dismissed, 365 N.C. 339 , 731 S.E.2d 835, 2011 N.C. LEXIS 1168 (2011), cert. dismissed, 366 N.C. 405 , 735 S.E.2d 329, 2012 N.C. LEXIS 1131 (2012).

In order to determine if the lack of a victim’s full name renders indictments fatally defective, courts apply the tests set forth in Coker and Lowe to inquire (1) whether a person of common understanding would know that the intent of the indictments was to charge a defendant with second-degree rape and second-degree sexual offense, violations of G.S. 14-27.3 and G.S. 14-27.5 , and (2) whether a defendant’s constitutional rights to notice and freedom from double jeopardy were adequately protected by the use of the victim’s initials. State v. McKoy, 196 N.C. App. 650, 675 S.E.2d 406, 2009 N.C. App. LEXIS 533 (2009), cert. dismissed, 365 N.C. 339 , 731 S.E.2d 835, 2011 N.C. LEXIS 1168 (2011), cert. dismissed, 366 N.C. 405 , 735 S.E.2d 329, 2012 N.C. LEXIS 1131 (2012).

Use of Words “And/Or” in Indictment Acceptable. —

Use of the words “and/or” did not render a short form indictment for rape facially invalid because a person of common understanding would have known that the intent of the indictment was to accuse defendant of having sexual intercourse with a person deemed by law to be incapable of giving consent. In turn, this language was sufficient to notify defendant of the charges against him in order to prepare an adequate defense and to protect him from being punished a second time for the same act. State v. Haddock, 191 N.C. App. 474, 664 S.E.2d 339, 2008 N.C. App. LEXIS 1483 (2008).

Minor plaintiffs’ action against their father for willfully assaulting, abusing, molesting and raping them was improperly dismissed under the provisions of G.S. 1A-1 , Rule 12(b)(6) on the ground that the action was barred by the parental immunity doctrine. Doe ex rel. Connolly v. Holt, 103 N.C. App. 516, 405 S.E.2d 807, 1991 N.C. App. LEXIS 794 (1991), aff'd, 332 N.C. 90 , 418 S.E.2d 511, 1992 N.C. LEXIS 372 (1992).

Inapplicability of Doctrine of Parental Immunity. —

Where a father’s acts against his minor daughters constituted incest in violation of this section, G.S. 14-178 , and second degree sexual offense in violation of G.S. 14-27.5 , and caused plaintiffs to suffer permanent physical, emotional and mental injuries, the doctrine of parental immunity will not bar a civil suit against him. Doe ex rel. Connolly v. Holt, 103 N.C. App. 516, 405 S.E.2d 807, 1991 N.C. App. LEXIS 794 (1991), aff'd, 332 N.C. 90 , 418 S.E.2d 511, 1992 N.C. LEXIS 372 (1992).

A proper indictment for the rape of a person who is asleep is one alleging rape of a “physically helpless” person. State v. Moorman, 82 N.C. App. 594, 347 S.E.2d 857, 1986 N.C. App. LEXIS 2605 (1986), writ denied, 318 N.C. 699 , 351 S.E.2d 737, 1986 N.C. LEXIS 2772 (1986), rev'd, 320 N.C. 387 , 358 S.E.2d 502, 1987 N.C. LEXIS 2288 (1987).

For discussion of sufficiency of evidence to justify an inference of intent to rape, see State v. Rushing, 61 N.C. App. 62, 300 S.E.2d 445, 1983 N.C. App. LEXIS 2575 , aff'd, 308 N.C. 804 , 303 S.E.2d 822, 1983 N.C. LEXIS 1305 (1983).

No Variance Where Indictment Alleged Use of Force and Proof Showed That Victim Was Asleep. —

Where evidence showed that penetration and the initiation of sexual intercourse was achieved while the prosecutrix was asleep and unable to communicate an unwillingness to submit to the act, there was no fatal variance between the indictment’s allegations that defendant carnally knew the prosecutrix by force and against her will and the proof the State presented at trial, and judgment of second-degree rape charge would not be arrested. State v. Moorman, 320 N.C. 387 , 358 S.E.2d 502, 1987 N.C. LEXIS 2288 (1987).

Election by State. —

By unequivocally arraigning defendant on second-degree rape and by failing thereafter to give any notice whatsoever, prior to the jury being impaneled and jeopardy attaching, of an intent instead to pursue a conviction for first-degree rape arguably supported by the short-form indictment, the State made a binding election not to pursue the greater degree of the offense, and such election was tantamount to an acquittal of first-degree rape. State v. Jones, 317 N.C. 487 , 346 S.E.2d 657, 1986 N.C. LEXIS 2420 (1986).

Satellite-Based Monitoring. —

Order pursuant G.S. 14-208.40 A(a) that defendant enroll in satellite-based monitoring for ten years after release from prison for sexual crime convictions was error because the Static 99 assessment conducted by the DOC concluded that defendant posed a “low” risk of re-offending, and there were no further findings or additional evidence; however, the state’s petition for writ of certiorari was granted, and the case was remanded to the trial court to enter an appropriate order in light of the recent case holding that second-degree rape was an aggravated offense as defined by the statute. State v. Oxendine, 206 N.C. App. 205, 696 S.E.2d 850, 2010 N.C. App. LEXIS 1450 (2010).

Trial court did not err by finding that defendant’s second-degree rape conviction constituted an aggravated offense pursuant to G.S. 14-208.6(1a), subjecting him to lifetime satellite-based monitoring, because the elements of second-degree rape, including the perpetrator’s use of force, were sufficient to constitute an aggravated offense. State v. Talbert, 233 N.C. App. 403, 756 S.E.2d 98, 2014 N.C. App. LEXIS 316 (2014).

Failure to Submit Crime as Charged in Indictment. —

Where defendant was charged with forcible first-degree rape, the failure of the trial court to submit the case to the jury pursuant to such crime as charged in the indictment amounted to a dismissal of that charge and all lesser included offenses. Therefore, by this failure the trial judge dismissed the first and second-degree rape charges alleged in the indictment. State v. Williams, 318 N.C. 624 , 350 S.E.2d 353, 1986 N.C. LEXIS 2739 (1986).

Where the jury was instructed and reached its verdict on the basis of the elements set out in G.S. 14-27.2(a)(1), whereas defendant had been charged with rape on the basis of the elements set out in G.S. 14-27.2(a)(2) and in subdivision (a)(1) of this section, the indictment under which defendant was brought to trial could not be considered to have been a valid basis on which to rest the judgment. State v. Williams, 318 N.C. 624 , 350 S.E.2d 353, 1986 N.C. LEXIS 2739 (1986).

Separate Acts of Intercourse. —

Where the evidence as to each of three separate acts of forcible intercourse was complete and sufficient to sustain a conviction of second degree rape without resort to the evidence necessary to prove either of the other rape charges, each of the three acts of forcible vaginal intercourse with the victim was a separate rape, and defendant was properly convicted and sentenced for all three offenses. State v. Midyette, 87 N.C. App. 199, 360 S.E.2d 507, 1987 N.C. App. LEXIS 3116 (1987), aff'd, 322 N.C. 108 , 366 S.E.2d 440, 1988 N.C. LEXIS 119 (1988).

Where there was only one sexual assault, the second-degree rape of the victim, which could have formed the “sexual assault” element of the first-degree kidnapping conviction, and since the rape was used to raise the kidnapping to first-degree, the defendant was convicted more than once for the same offense in violation of the prohibition against double jeopardy. Therefore, the case was remanded to the trial court for a new sentencing hearing, to either arrest judgment on the first-degree kidnapping conviction and resentence the defendant for second-degree kidnapping, or arrest judgment on the second-degree rape conviction. State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

Sentences for Convictions of Both Statutory Rape and Second Degree Rape Based on Single Act of Sexual Intercourse Were Prohibited. —

Defendant was entitled to relief on motion for appropriate relief because he received ineffective assistance when his counsel failed to object to judgment which sentenced him for convictions of both statutory rape and second degree rape, G.S. 14-27.3 , that were based upon a single act of sexual intercourse. A prior appellate opinion, issued before defendant’s trial and judgment, held that statutory rape and first degree rape convictions based on a single act of intercourse were prohibited, and second degree rape was a lesser included offense of first degree rape. State v. Banks, 225 N.C. App. 417, 736 S.E.2d 843, 2013 N.C. App. LEXIS 131 (2013), rev'd, 367 N.C. 652 , 766 S.E.2d 334, 2014 N.C. LEXIS 961 (2014).

Double Jeopardy Not Shown. —

Defendant’s convictions of two violations of G.S. 14-27.7 , for engaging in a sexual act and in intercourse with a person over whom his employer had custody, following his earlier acquittal of second-degree rape under this section and committing a sex act on a person who was physically helpless under G.S. 14-27.5 , and vacation of his conviction of engaging in a sex act by force and against victim’s will in violation of G.S. 14-27.5 , did not violate the double jeopardy clauses of the U.S. Const., Amend. V and N.C. Const., Art. I, § 19, as the offenses that defendant was convicted of were not lesser included offenses of other crimes that he was earlier tried for. State v. Raines, 81 N.C. App. 299, 344 S.E.2d 138, 1986 N.C. App. LEXIS 2260 (1986), aff'd, 319 N.C. 258 , 354 S.E.2d 486, 1987 N.C. LEXIS 1932 (1987).

At trial for second-degree rape, the defendant was furnished with an opportunity to plead and offer evidence to sustain his plea of former jeopardy by proving that the sexual act at issue, not the alcohol related instances, were the basis of his earlier plea of guilty to charges of contributing to the delinquency of a minor; however, defendant failed to do so. Thus, defendant’s assertion that the factual basis for the acceptance of his guilty plea was solely based upon the sexual act was too speculative and wholly insufficient to establish his burden of proof. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Double jeopardy argument would have been unsuccessful at trial when defendant was convicted of both second-degree rape and statutory rape, predicated on a single act of sexual intercourse with the fifteen-year-old and mentally disabled victim, because neither of the offenses was a lesser included offense of the other based on the separate and distinct elements that had to be proven for each offense. State v. Banks, 367 N.C. 652 , 766 S.E.2d 334, 2014 N.C. LEXIS 961 (2014).

Standing to Challenge Section. —

Defendant who was neither “mentally defective,” “mentally incapacitated,” nor “physically helpless” had no standing to challenge the constitutionality of this section on grounds that it unconstitutionally infringed upon a physically handicapped or mentally disabled person’s right to privacy by intruding upon such a person’s right to engage in consensual vaginal intercourse. State v. Teeter, 85 N.C. App. 624, 355 S.E.2d 804, 1987 N.C. App. LEXIS 2640 , writ denied, 320 N.C. 175 , 358 S.E.2d 66, 1987 N.C. LEXIS 2247 (1987).

Indictment Defective. —

Indictment of defendant for statutory rape was insufficient to support a judgment on the offense of attempted second degree rape, where the indictment failed to charge essential elements of the offense of attempted second degree rape. Because the indictment was fatally defective, defendant’s conviction for attempted second degree rape was a nullity. State v. Frink, 177 N.C. App. 144, 627 S.E.2d 472, 2006 N.C. App. LEXIS 689 (2006).

Child and the child’s brother were properly adjudicated to be abused, under G.S. 7B-101(1)(d), because the evidence showed the child’s mother and stepfather allowed the brother to commit G.S. 14-27.3 second-degree statutory rape and G.S. 14-27.5 second-degree statutory sexual offense against the child, despite being made aware of the conduct. In re M.A.E. (July 21, 2015).

Sentence Held Proper. —

Trial court’s failure to inform defendant of the increased maximum sentence for second-degree rape did not entitle defendant to relief because defense counsel informed the trial court that defendant had decided to reject a plea offer and proceed to trial on a charge of first-degree rape. State v. Ruffin, 232 N.C. App. 652, 754 S.E.2d 685, 2014 N.C. App. LEXIS 233 (2014).

II.Elements of Offense

The essential elements for a conviction of second-degree rape are that vaginal intercourse took place by force and against the will of the other person. State v. Hosey, 79 N.C. App. 196, 339 S.E.2d 414, 1986 N.C. App. LEXIS 1975 , modified, 318 N.C. 330 , 348 S.E.2d 805, 1986 N.C. LEXIS 2655 (1986).

Use of Force. —

The element of “by force and against her will” has long been present in North Carolina rape statutes, and is still sufficient to support a conviction of second-degree rape under this section. State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

Force is an essential element of the offense of rape. State v. Smith, 45 N.C. App. 501, 263 S.E.2d 371, 1980 N.C. App. LEXIS 2656 (1980).

Phrase “by force and against her will” (now “by force and against the will of the other person”) used in this section and G.S. 14-27.2 , 14-27.4 and 14-27.5, means the same as it did at common law when it was used to describe some of the elements of rape. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981); State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982); State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

“By force and against the will of the other person” is defined as notwithstanding her resistance. In re Howett, 76 N.C. App. 142, 331 S.E.2d 701, 1985 N.C. App. LEXIS 3819 (1985).

Trial court did not err in denying defendant’s motion to dismiss charges of second-degree rape and second-degree sexual offense, as there was evidence of force and constructive force by defendant, and the victim’s lack of consent to intercourse or a sexual act. State v. Norman, 227 N.C. App. 162, 741 S.E.2d 683, 2013 N.C. App. LEXIS 481 (2013).

Force required to constitute rape must be actual or constructive force used to achieve sexual intercourse. State v. Morrison, 85 N.C. App. 511, 355 S.E.2d 182, 1987 N.C. App. LEXIS 2607 (1987).

Actual Physical Force Not Required. —

The force necessary to constitute rape need not be actual physical force. State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980); State v. Hines, 286 N.C. 377 , 211 S.E.2d 201, 1975 N.C. LEXIS 1190 (1975); State v. Yancey, 291 N.C. 656 , 231 S.E.2d 637, 1977 N.C. LEXIS 1230 (1977); State v. Hosey, 79 N.C. App. 196, 339 S.E.2d 414, 1986 N.C. App. LEXIS 1975 , modified, 318 N.C. 330 , 348 S.E.2d 805, 1986 N.C. LEXIS 2655 (1986).

Constructive force is sufficient and the female’s submission under fear or duress takes the place of actual physical force. State v. Dull, 289 N.C. 55 , 220 S.E.2d 344, 1975 N.C. LEXIS 874 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4217 (1976); State v. Stanley, 74 N.C. App. 178, 327 S.E.2d 902, 1985 N.C. App. LEXIS 3430 (1985).

The force necessary to sustain a conviction of rape under subdivision (1) of subsection (a) of this section need not be actual physical force, but may be constructive force such as fear, fright, or coercion. State v. Strickland, 318 N.C. 653 , 351 S.E.2d 281, 1987 N.C. LEXIS 1760 (1987).

Constructive force in the form of fear, fright or coercion suffices to establish the element of force in second-degree rape and may be demonstrated by proof of defendant’s acts which, in the totality of the circumstances, create the reasonable inference that the purpose of such acts was to compel victim’s submission to sexual intercourse. State v. Parks, 96 N.C. App. 589, 386 S.E.2d 748, 1989 N.C. App. LEXIS 1109 (1989).

Defendant was not entitled to dismissal pursuant to G.S. 15A-954 of the second-degree rape charge, in violation of G.S. 14-27.3 , against defendant; there was sufficient evidence of constructive force to convict defendant, where the victim testified that defendant threatened the victim that if the victim did not do what defendant asked, defendant would pull a gun on the victim. State v. Scercy, 159 N.C. App. 344, 583 S.E.2d 339, 2003 N.C. App. LEXIS 1499 (2003).

And fear, fright, or coercion may take the place of force. State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980); State v. Hines, 286 N.C. 377 , 211 S.E.2d 201, 1975 N.C. LEXIS 1190 (1975); State v. Yancey, 291 N.C. 656 , 231 S.E.2d 637, 1977 N.C. LEXIS 1230 (1977); State v. Hosey, 79 N.C. App. 196, 339 S.E.2d 414, 1986 N.C. App. LEXIS 1975 , modified, 318 N.C. 330 , 348 S.E.2d 805, 1986 N.C. LEXIS 2655 (1986).

Establishing constructive force. —

The element of force can be shown to be constructive force in the form of fear, fright, or coercion. State v. Martin, 126 N.C. App. 426, 485 S.E.2d 352, 1997 N.C. App. LEXIS 371 (1997).

Victim’s General Fear of Defendant. —

The case of State v. Lester, 70 N.C. App. 757, 321 S.E.2d 166 (1984), aff’d per curiam, 313 N.C. 595 , 330 S.E.2d 205 (1985) holding that although the victim’s general fear of the defendant may have been justified by his conduct on prior occasions, absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape, is expressly overruled. State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

In view of the victim’s unusual prior consensual relationship with the defendant, absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been raped, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape. State v. Alston, 310 N.C. 399 , 312 S.E.2d 470, 1984 N.C. LEXIS 1585 (1984), limited, State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987); State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

The “general fear” theory in State v. Alston, 310 N.C. 399 , 312 S.E.2d 470, is applicable only to fact situations similar to those in that case. State v. Strickland, 318 N.C. 653 , 351 S.E.2d 281, 1987 N.C. LEXIS 1760 (1987); State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

Sexual activity between a parent and a minor child is not comparable to sexual activity between two adults with a history of consensual intercourse; the youth and vulnerability of children, coupled with the power inherent in a parent’s position of authority, creates a unique situation of dominance and control in which explicit threats and displays of force are not necessary to effect the abuser’s purpose. State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

Victim’s Physical Helplessness Is Sufficient Force. —

The physical act of vaginal intercourse with the victim while she is physically helpless is sufficient force for the purpose of second-degree rape. State v. Aiken, 73 N.C. App. 487, 326 S.E.2d 919, 1985 N.C. App. LEXIS 3334 (1985).

Mentally Defective Victim. —

If there is substantial evidence that a person has engaged in prohibited sexual conduct in violation of this section or G.S. 14-27.5 , and the victim was mentally defective, and the perpetrator knew or reasonably should have known that the victim was mentally defective, there is substantial evidence that the person has engaged in such conduct “by force and against the will” of the victim. State v. Washington, 131 N.C. App. 156, 506 S.E.2d 283, 1998 N.C. App. LEXIS 1308 (1998), cert. denied, 352 N.C. 362 , 544 S.E.2d 562, 2000 N.C. LEXIS 587 (2000), writ denied, 644 S.E.2d 562, 2007 N.C. LEXIS 282 (N.C. 2007).

Inference of Constructive Force in Parent-Child Relationship. —

Where explicit threats or displays of force are absent, constructive force may nevertheless be inferred from the unique situation of dominance and control which inheres in the parent-child relationship. State v. Parks, 96 N.C. App. 589, 386 S.E.2d 748, 1989 N.C. App. LEXIS 1109 (1989).

Which Need Not Have Biological or Legal Basis. —

A parent-child relationship exists for purposes of a constructive force analysis under this section where defendant’s relationship with victim encompasses nearly all the practical incidents of parenthood, notwithstanding the absence of a biological or legal parent-child relationship. State v. Parks, 96 N.C. App. 589, 386 S.E.2d 748, 1989 N.C. App. LEXIS 1109 (1989).

State introduced evidence sufficient to establish constructive force where it showed that there had been ample time for dominance and control by defendant to develop over child victim where defendant was not a parent but was the live-in boyfriend of victim’s mother, began living with the family when victim was only eight years old, and assumed parental responsibilities, often baby-sitting victim and her sister while his girlfriend worked, and where victim and defendant had both participated in simulated parent-child relationship for four or five years when the acts of sexual intercourse between them began. State v. Morrison, 94 N.C. App. 517, 380 S.E.2d 608, 1989 N.C. App. LEXIS 545 , cert. denied, 325 N.C. 549 , 385 S.E.2d 507, 1989 N.C. LEXIS 557 (1989).

The defendant, the victim’s step-father, began abusing the victim when she was only 15 years old. Each episode of abuse occurred while the victim lived with the defendant as an unemancipated minor in the defendant’s trailer and subject to his parental authority. In each incident, the defendant was either silent or at most said “Shh” while climbing on top of his step-daughter and engaging in sexual intercourse with her. She never gave her consent and the defendant never asked for it. The State presented sufficient evidence from which a jury could reasonably infer that the defendant used his position of power to force his step-daughter to participate in sexual intercourse. State v. Hardy, 104 N.C. App. 226, 409 S.E.2d 96, 1991 N.C. App. LEXIS 1012 (1991).

Constructive Force Shown. —

Evidence of threats and displays of force by defendant, who lived with victim’s mother and had a parental role in the family, for the purpose of compelling victim’s submission to sexual intercourse on the dates in question, held sufficient to constitute constructive force within the meaning of this section. State v. Parks, 96 N.C. App. 589, 386 S.E.2d 748, 1989 N.C. App. LEXIS 1109 (1989).

Force and Lack of Consent Implied in Law Where Victim Is Sleeping or Incapacitated. —

In the case of a sleeping or similarly incapacitated victim, it makes no difference whether the indictment alleges that vaginal intercourse was by force and against the victim’s will or whether it alleges merely vaginal intercourse with an incapacitated victim. In such a case, sexual intercourse with the victim is ipso facto rape, because the force and lack of consent are implied in law. State v. Moorman, 320 N.C. 387 , 358 S.E.2d 502, 1987 N.C. LEXIS 2288 (1987); State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Evidence of both actual and constructive force was present in rape case, the actual force occurring when defendant pushed the victim towards the bed and when he pushed her hands aside, and constructive force occurring when defendant locked the door, yelled at the victim and placed her in fear that she would be hurt. State v. Morrison, 85 N.C. App. 511, 355 S.E.2d 182, 1987 N.C. App. LEXIS 2607 (1987).

Penetration Must Be Established. —

It is necessary to establish penetration by the male sex organ of the female sex organ. State v. Barnes, 307 N.C. 104 , 296 S.E.2d 291, 1982 N.C. LEXIS 1601 (1982).

In a rape prosecution, the fact that a lesser charge of assault on a female would not be available when a defendant asserts that the intercourse was consensual does not nullify the reference in G.S. 15-144.1 to assault on a female. A jury could find a defendant not guilty of rape under G.S. 14-27.2 or G.S. 14-27.3 based on evidence that defendant’s penis had not vaginally penetrated the victim. State v. Thomas, 196 N.C. App. 523, 676 S.E.2d 56, 2009 N.C. App. LEXIS 520 (2009).

Slightest Penetration Sufficient. —

The slightest penetration of the female sex organ by the male sex organ is sufficient to constitute vaginal intercourse within the meaning of the statute. State v. Bruno, 108 N.C. App. 401, 424 S.E.2d 440, 1993 N.C. App. LEXIS 80 (1993).

It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient. State v. Bruno, 108 N.C. App. 401, 424 S.E.2d 440, 1993 N.C. App. LEXIS 80 (1993).

Withdrawal of Consent. —

Consent can be withdrawn. This concept ordinarily applies, however, to those situations in which there is evidence of more than one act of intercourse between the prosecutrix and the accused. State v. Way, 297 N.C. 293 , 254 S.E.2d 760, 1979 N.C. LEXIS 1245 (1979).

Assault on a female is not a lesser included offense of attempted second-degree rape, because the assault offense contains essential elements which are not contained in the attempted rape offense. State v. Wortham, 318 N.C. 669 , 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987) (insofar as the result in Freeman on the assault of a female conflicts with this decision) .

An attempt to commit rape has the elements of (1) an intent to commit rape, and (2) an overt act done for that purpose, which goes beyond mere preparation, but falls short of the completed offense. State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810, 1987 N.C. App. LEXIS 2390 , cert. denied, 319 N.C. 408 , 354 S.E.2d 724, 1987 N.C. LEXIS 2007 (1987).

There was substantial evidence of restraint to support defendant’s second-degree attempted rape conviction as defendant straddled the victim and tried to pull up the victim’s shirt, and defendant’s pants were unzipped, which created an inference of guilt and was evidence of intent; the same evidence demonstrated defendant’s overt act in furtherance of the crime. State v. Simpson, 187 N.C. App. 424, 653 S.E.2d 249, 2007 N.C. App. LEXIS 2431 (2007).

Lesser Included Offense. —

Trial court erred by denying defendant’s motions to dismiss the charges of first-degree rape and first-degree sexual offense because the State of North Carolina failed to offer any evidence tending to show that defendant employed or displayed a dangerous or deadly weapon or an article which the victim reasonably believed was a dangerous or deadly weapon, as required by G.S. 14-27.2(a)(2)(a) and G.S. 14-27.4(a)(2)(a). However, the case was remanded for resentencing because the jury’s convictions necessarily included all the elements of second-degree rape and second-degree sexual offense under G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1). State v. Adams, 187 N.C. App. 676, 654 S.E.2d 711, 2007 N.C. App. LEXIS 2572 (2007).

As there was clear and positive evidence that defendant’s penis penetrated the victim’s vagina, defendant was not entitled to an instruction on attempted second-degree rape. State v. Norman, 227 N.C. App. 162, 741 S.E.2d 683, 2013 N.C. App. LEXIS 481 (2013).

III.Evidence

Use of Term “Rape” in Testimony. —

Testimony by the prosecutrix that defendant raped her did not invade the province of the jury since (1) the court sustained an objection to the testimony and (2) the testimony was competent as a shorthand statement of fact. State v. See, 301 N.C. 388 , 271 S.E.2d 282, 1980 N.C. LEXIS 1173 (1980).

Prior Use of Tampon by Complainant. —

In prosecution for second-degree rape, and incest involving 13-year-old complainant, where physical examination revealed no bruising or tearing of the genital or rectal area and no sperm within the vagina, but did reveal an opening in the hymen, evidence concerning complainant’s prior use of a tampon was relevant and should have been admitted. State v. Baron, 58 N.C. App. 150, 292 S.E.2d 741, 1982 N.C. App. LEXIS 2755 (1982).

Victim’s Mental Status. —

A trial judge has no authority to order a victim to submit to a psychological examination when the victim’s mental status is an element of the crime with which the defendant is charged. State v. Horn, 337 N.C. 449 , 446 S.E.2d 52, 1994 N.C. LEXIS 404 (1994).

The victim’s character for drunkenness was not pertinent to defendant’s defense in trial for second-degree rape. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Proffered testimony as to the victim’s alcohol consumption with other people in party settings had no tendency to prove that the victim consented to sexual activity with the defendant on the day in question. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Defendant’s Good Character. —

Where defendant’s testimony contradicts that of the prosecuting witness, the jury is required, in reaching a verdict, to pass on the defendant’s credibility. Therefore, it is error for the court to fail to instruct the jury that evidence introduced by the defendant as to his good character could also be considered as bearing on his credibility. State v. Williams, 59 N.C. App. 549, 297 S.E.2d 604, 1982 N.C. App. LEXIS 3168 (1982).

Prior Acts, Crimes, and Wrongs. —

Trial court did not err by admitting the witness's testimony regarding Defendant's alleged prior forcible rapes during his trial for second-degree rape because they were relevant as the State's theory rested on the fact that the victim was physically helpless against defendant's actions and the witness's testimony was relevant to prove that defendant did not mistake the victim's actions and inactions as consent. State v. Rodriguez, 2021-NCCOA-594, 867 S.E.2d 229, 2021 N.C. App. LEXIS 602 (Ct. App. 2021).

Flight from First Trial on Offense. —

In prosecution for second-degree rape, probative value of evidence of defendant’s flight from first trial on such offense was not outweighed by its prejudicial effect, despite the fact that he was without counsel in the trial from which he fled. State v. Jeffries, 57 N.C. App. 416, 291 S.E.2d 859, 1982 N.C. App. LEXIS 2678 (1982).

Evidence of Restraint for Attempted Rape Independent of Restraint for Kidnapping Charge. —

Trial court did not err in denying defendant’s motion to dismiss his second-degree kidnapping charge, under G.S. 14-39(a), and there was sufficient evidence that defendant restrained the victim for the purpose of facilitating a felony where there was sufficient evidence from which the jury could find that defendant intended to rape the victim; further, the evidence of restraint forming the basis of the kidnapping charge was independent of the restraint inherent in the attempted rape charge as defendant pushed the victim down the hallway of her residence, into her bedroom, and pinned her on her bed, which constituted evidence that defendant took the victim to a more secluded area to prevent others from witnessing or hindering the rape. State v. Mangum, 158 N.C. App. 187, 580 S.E.2d 750, 2003 N.C. App. LEXIS 1036 (2003).

Evidence of Force Sufficient to Go to Jury. —

Where the State’s evidence tended to show that defendant broke into and entered the victim’s home twice, and the second time got into the victim’s bed, kissed her and held her down while repeating: “I’ve been wanting you, and now I’m going to have you” and later, put his hand into the victim’s panties and said, “Here it is, I’m going to eat it,” and finally, stated he “might as well [go] ahead and rape you anyway,” there was sufficient evidence of defendant’s intent to engage in vaginal intercourse by force and against the will of the victim to have allowed the case to go to the jury. State v. Walton, 90 N.C. App. 532, 369 S.E.2d 101, 1988 N.C. App. LEXIS 568 (1988).

There was sufficient evidence that defendant attempted to have intercourse with a child victim, and that defendant used force of threats in defendant’s attempt to have intercourse with the victim for purposes of an attempted rape charge under G.S. 14-27.3(a)(1) to go to a jury as: (1) defendant attempted to have intercourse with the victim through defendant’s repeated asking the victim for sex and the multiple other sexual acts; (2) these repeated acts constituted overt sexual behavior beyond mere preparation in defendant’s attempt to have intercourse with the victim; and (3) defendant’s relationship with the victim constituted one in which defendant had a position of power over the victim, and defendant used the position in such a way as to constitute constructive force. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Expert Testimony. —

Trial court did not abuse its discretion by refusing to admit the testimony of defendant’s expert because he State’s theory of physical helplessness did not rest on the rape victim’s lack of memory, and therefore the expert’s testimony concerning alcohol and its effect on memory would not have helped the jury determine a fact in issue in the case. State v. Lopez, 264 N.C. App. 496, 826 S.E.2d 498, 2019 N.C. App. LEXIS 279 (2019).

DNA Evidence. —

In rape case where assignment of error did not bring forward a specific objection to the admission of DNA evidence, but rather challenged its general admissibility, the assignment was overruled. State v. Bruno, 108 N.C. App. 401, 424 S.E.2d 440, 1993 N.C. App. LEXIS 80 (1993).

Evidence of Defendant’s Intent Insufficient. —

Evidence that defendant could not be ruled out as a partial contributor to the semen stain on the victim’s jeans, standing alone as it did in the case, was not enough to show defendant had the intent to have vaginal intercourse with the victim by force and against her will. State v. Rick, 342 N.C. 91 , 463 S.E.2d 182, 1995 N.C. LEXIS 535 (1995).

Evidence held sufficient to show sexual act was accomplished “by force” as is required by subdivision (a)(1) of this section where among other things, defendant pinned victim against sink, continued to restrain victim and would not let her go when victim pushed defendant, angled victim down hall and into bathroom, repeatedly placed victim upon bathroom sink so that he could accomplish act of sexual intercourse, forcibly unbuttoned victim’s blouse and forcibly removed her pants and panties and kept victim within his physical power during entire sexual episode. State v. Scott, 323 N.C. 350 , 372 S.E.2d 572, 1988 N.C. LEXIS 599 (1988).

Where there was conflicting evidence on defendant’s use of a knife, proof of which was necessary for a verdict of first-degree rape, victim testifying that defendant employed a knife during the act of rape, while defendant testified that there was no knife in his truck when the incident occurred, and no knife was ever located by investigating officers, the trial court properly included the lesser-included offense of second-degree rape and second-degree sexual offense in its charge to the jury. State v. Watkins, 89 N.C. App. 599, 366 S.E.2d 876, 1988 N.C. App. LEXIS 355 (1988).

Destruction of Evidence. —

Destruction of rape kit and all articles of clothing the victim had been wearing the night of the rape after a computer printout indicated that the case had been voluntarily dismissed did not involve reversible error, where the evidence was not exculpatory. State v. Graham, 118 N.C. App. 231, 454 S.E.2d 878, 1995 N.C. App. LEXIS 165 (1995).

Evidence Held Sufficient. —

Evidence held sufficient to find that defendant confined, restrained and removed victim from one place to another to facilitate the attempted gratification of his passion on her notwithstanding her resistance. State v. Whitaker, 76 N.C. App. 52, 331 S.E.2d 752, 1985 N.C. App. LEXIS 3810 (1985), aff'd in part and rev'd in part, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

Considering 13-year-old victim’s fear of her stepfather, along with her testimony that he accomplished his penetration of her through the use of force, there was sufficient evidence for the jury to find that defendant used sufficient actual force to overcome victim’s will and any resistance she was capable of. State v. Hosey, 79 N.C. App. 196, 339 S.E.2d 414, 1986 N.C. App. LEXIS 1975 , modified, 318 N.C. 330 , 348 S.E.2d 805, 1986 N.C. LEXIS 2655 (1986).

Evidence held sufficient to show that the defendant used physical force as well as the victim’s fear and fright to commit the crime of second-degree rape, where upon learning that she was sick, ignoring her demand that he leave her alone, and breaking through a locked door to enter her home, the defendant used force to make the victim submit to vaginal intercourse. State v. Strickland, 318 N.C. 653 , 351 S.E.2d 281, 1987 N.C. LEXIS 1760 (1987).

Evidence held sufficient to authorize the trial court’s denial of a motion at the close of the evidence to dismiss the charge of attempted second-degree rape. State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810, 1987 N.C. App. LEXIS 2390 , cert. denied, 319 N.C. 408 , 354 S.E.2d 724, 1987 N.C. LEXIS 2007 (1987).

Under the evidence, with all reasonable inferences drawn in the State’s favor, a jury could reasonably have found that defendant showed a preconceived intent to rape the prosecutrix, so as to support a charge of first degree burglary, (1) by entering motel room shortly after prosecutrix’s male companion had left, (2) by remaining in the room after he knew for certain that a woman was in it, and (3) by closing and locking the room door before jumping on the prosecutrix, who lay in bed, and that he committed an overt act toward the commission of rape necessary for a conviction of attempted second-degree rape. The fact that the prosecutrix was more than a match for defendant, causing him to abandon any such intent and flee the room, would not absolve him from responsibility for his actions. State v. Planter, 87 N.C. App. 585, 361 S.E.2d 768, 1987 N.C. App. LEXIS 3281 (1987).

Where victim testified, inter alia, that defendant pushed her onto her back when she tried to turn away and held her arms or hands during the act of intercourse and she stated that defendant repeatedly told her not to tell anyone and threatened to kill her and her family members if she did, this evidence was sufficient to show that defendant acted “by force and against the will of the other person,” as required by subdivision (a)(1). State v. Hall, 98 N.C. App. 1, 390 S.E.2d 169, 1990 N.C. App. LEXIS 312 (1990), rev'd, 330 N.C. 808 , 412 S.E.2d 883, 1992 N.C. LEXIS 66 (1992).

Although the victim was not able to identify the defendant as the perpetrator, the evidence was sufficient on the charges; the circumstantial evidence showed that hairs found at the scene of the crime were microscopically consistent with those of defendant and could have originated from the defendant and that the shoe prints found in the sand by the culvert and in the dust on the hardwood floor in the victim’s bedroom matched the treads of the defendant’s shoes. State v. Styles, 93 N.C. App. 596, 379 S.E.2d 255, 1989 N.C. App. LEXIS 396 (1989).

Evidence was sufficient to support defendant’s conviction for rape under G.S. 14-27.3(a), as the victim’s testimony that she was afraid of defendant and struggled with defendant physically to prevent intercourse, gave proof of both actual and constructive force sufficient to support the conviction. State v. Strickland, 153 N.C. App. 581, 570 S.E.2d 898, 2002 N.C. App. LEXIS 1266 (2002), cert. denied, 357 N.C. 65 , 2003 N.C. LEXIS 594 (2003), cert. dismissed, 602 S.E.2d 679, 2004 N.C. LEXIS 1044 (N.C. 2004).

Trial court did not err in denying defendant’s motion to dismiss his attempted second-degree rape charge and the evidence was sufficient to support defendant’s conviction, including defendant’s intent to rape the victim, where defendant: (1) forced entry into the victim’s residence at 4:00 a.m., (2) pinned the victim to her bed, (3) threatened the victim, (4) grabbed the victim’s breast and between her legs, and (5) despite resistance, did not end the assault until the police arrived. State v. Mangum, 158 N.C. App. 187, 580 S.E.2d 750, 2003 N.C. App. LEXIS 1036 (2003).

Defendant’s initial subterfuge; subsequent suggestive touching of the female victim along with the expression of his desire for her, the later assault, which included pulling the female’s pants down while lying on top of her, and threats of harm when she tried to get away from him, were sufficient to permit a reasonable fact-finder to infer that defendant had the requisite intent to rape the female victim and committed sufficient overt acts toward that end; defendant’s conviction for attempted second degree rape was affirmed. State v. Farmer, 158 N.C. App. 699, 582 S.E.2d 352, 2003 N.C. App. LEXIS 1230 (2003).

In a prosecution for first-degree statutory rape, under G.S. 14-27.2(a)(1), and second-degree forcible rape, under G.S. 14-27.3(a)(1), sufficient evidence was submitted showing that defendant was the perpetrator when the victim testified that defendant raped her and repeated this story to several people, so the denial of defendant’s motion to dismiss for lack of sufficient evidence that he was the perpetrator was proper, even though defendant presented evidence that he was not the perpetrator. State v. Bell, 159 N.C. App. 151, 584 S.E.2d 298, 2003 N.C. App. LEXIS 1432 (2003), cert. denied, 358 N.C. 733 , 601 S.E.2d 863, 2004 N.C. LEXIS 1013 (2004).

In a prosecution for first-degree statutory rape, under G.S. 14-27.2(a)(1), and second-degree forcible rape, under G.S. 14-27.3(a)(1), sufficient evidence was submitted of defendant’s penetration of the victim, when the victim testified that defendant placed his penis between her legs, continued pushing, “it hurt,” and she found blood on her underwear, and a physician testified that, although there was no indication of complete penetration, there was bruising of the inner lip of the labia minora near the hymen, so the denial of defendant’s motion to dismiss for lack of sufficient evidence of penetration was proper, as complete penetration was not required. State v. Bell, 159 N.C. App. 151, 584 S.E.2d 298, 2003 N.C. App. LEXIS 1432 (2003), cert. denied, 358 N.C. 733 , 601 S.E.2d 863, 2004 N.C. LEXIS 1013 (2004).

Forensic DNA testing showing a high probability that defendant was the father of the victim’s children and the victim’s statement that defendant, her father, started molesting her when she was four years old provided sufficient evidence to support defendant’s conviction for second-degree rape. State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334, 2005 N.C. App. LEXIS 1583 (2005).

Rape conviction was supported by testimony that defendant engaged in sexual intercourse with the victim when she was helpless due to her having consumed a large quantity of alcohol, the victim’s her lack of experience with intoxicating beverages, and the victim’s repeated loss of consciousness due to her alcohol consumption. State v. Buff, 170 N.C. App. 374, 612 S.E.2d 366, 2005 N.C. App. LEXIS 998 (2005).

Trial court did not err in denying defendant’s motion to dismiss for insufficient evidence and in convicting him of second-degree rape in violation of G.S. 14-27.3(a)(2) because given the evidence of the victim’s age, frailty, and physical limitations, there was evidence from which the jury could reasonably conclude that the victim was not able to actively oppose or resist her attacker; the victim was 83 years of age, suffered from severe arthritis, and normally walked with the assistance of a walker, and because of the victim’s physical condition, it was impossible for her to travel down the front steps of her house without assistance. State v. Atkins, 193 N.C. App. 200, 666 S.E.2d 809, 2008 N.C. App. LEXIS 1743 (2008).

Evidence was sufficient to support defendant’s conviction of second-degree rape because it showed that the victim consumed sizable portions of alcohol, was physically ill, was unable to remember anything after leaving the club, woke the following morning with her clothing removed, her vagina was sore, and she had a blurry memory of pushing someone off her. Defendant’s actions following the incident tended to show that he knew the victim was physically helpless when she was raped. State v. Lopez, 264 N.C. App. 496, 826 S.E.2d 498, 2019 N.C. App. LEXIS 279 (2019).

Evidence Held Insufficient. —

Evidence that respondent tried to remove minor female’s shorts, but stopped when she simply spread her legs to prevent her shorts from sliding off, and that when minor female told him to stop and that her mother would be home soon, respondent got up and left, was not sufficient as a matter of law to support the essential finding that respondent intended to have sexual intercourse with minor female notwithstanding her resistance. In re Howett, 76 N.C. App. 142, 331 S.E.2d 701, 1985 N.C. App. LEXIS 3819 (1985).

Defendant’s conviction for second-degree rape was reversed, because the State proceeded only under G.S. 14-27.3(a)(2) and G.S. 14-27.5(a)(2), based on a theory that the victim was “physically helpless,” but the State was unable to support that theory. Evidence that defendant pinned the victim in a submissive hold and tied her hands behind her back was not a unique and personal attribute of the victim but rather more indicative of the use of force. State v. Huss, 223 N.C. App. 480, 734 S.E.2d 612, 2012 N.C. App. LEXIS 1300 (2012), aff'd, 367 N.C. 162 , 749 S.E.2d 279, 2013 N.C. LEXIS 1160 (2013).

IV.Instructions

Failure of the trial court to define “sexual intercourse” in jury instructions is not usually error. State v. Barnes, 307 N.C. 104 , 296 S.E.2d 291, 1982 N.C. LEXIS 1601 (1982).

When Instruction Beyond “Sexual Intercourse” Not Required. —

Special instructions beyond the phrase “sexual intercourse” as to penetration are not required when there is plenary evidence before the jury that the female sex organ had been penetrated by the male sex organ. State v. Barnes, 307 N.C. 104 , 296 S.E.2d 291, 1982 N.C. LEXIS 1601 (1982).

When Instruction on Penetration Element Required. —

Where (1) the evidence of penetration by a male sex organ is weak, (2) there is a suggestion from the examining physician that penetration could have been by some other object, and (3) a prior erroneous instruction on second-degree sex offense, equating sexual intercourse with penetration of an object might have misled the jury, the failure to instruct on the penetration element of the offense is prejudicial error. Under these circumstances it was necessary for the trial judge to have included, in his instruction on second-degree rape, language sufficient to establish that penetration must be of the female sex organ by the male sex organ. State v. Barnes, 307 N.C. 104 , 296 S.E.2d 291, 1982 N.C. LEXIS 1601 (1982).

Lack of Consent. —

Trial court did not err in instructing the jury because the force and lack of consent were implied in law, and therefore the trial court was not required to instruct the jury that lack of consent was an essential element of second-degree rape. State v. Lopez, 264 N.C. App. 496, 826 S.E.2d 498, 2019 N.C. App. LEXIS 279 (2019).

Withdrawal of Consent After Penetration. —

In a prosecution for second-degree rape where, under the court’s instruction, the jury could have found the defendant guilty of rape if they believed the victim had consented to have intercourse with the defendant and in the middle of that act, she changed her mind, the court committed error requiring a new trial. If the actual penetration is accomplished with the woman’s consent, the accused is not guilty of rape, although he may be guilty of another crime because of his subsequent actions. State v. Way, 297 N.C. 293 , 254 S.E.2d 760, 1979 N.C. LEXIS 1245 (1979).

Jury Instructions. —

In a prosecution for second-degree rape, incest, and second-degree sexual offense, the trial court did not err in using the term “victim,” as found in the pattern jury instructions, when describing the generic definitions of the crimes, as it was not thereby intimating any opinion as to whether defendant had committed the crimes. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Impermissible Instruction Regarding Elements of Force and Lack of Consent. —

In a second degree rape charge under G.S. 14-27.3 where the victim alleged that she said no and that defendant engaged in sexual intercourse with her while she was asleep, and defendant alleged that the victim was awake and consented to intercourse, the State and defendant presented contradictory evidence on the elements of force and against the victim’s will, but the trial court impermissibly instructed the jury that two elements — force and lack of consent — were established as a matter of law if victim was found to be sleeping or similarly incapacitated; the trial court’s jury instruction created a reasonable likelihood that the jury did not deliberate upon the contradictory evidence, but rather understood the trial court’s instruction to mean force and lack of consent had been established. Thus, there was a reasonable likelihood the jury concluded the victim was asleep by a standard less than beyond a reasonable doubt; therefore, pursuant to G.S. 15A-1443(b) , the erroneous jury instruction was not harmless beyond a reasonable doubt, and defendant was entitled to a new trial. State v. Smith, 170 N.C. App. 461, 613 S.E.2d 304, 2005 N.C. App. LEXIS 1075 (2005), aff'd, modified, 360 N.C. 341 , 626 S.E.2d 258, 2006 N.C. LEXIS 20 (2006).

Instruction on Attempted Second-Degree Rape. —

Evidence was sufficient to support the alternative jury instruction for attempted second-degree rape; although the prosecuting witness did testify that she was raped by defendant in his bedroom, at other points in her testimony she described only an attempt to rape her, and jury acted within its prerogative to believe some, but not all of her testimony. State v. Hinton, 95 N.C. App. 683, 383 S.E.2d 704, 1989 N.C. App. LEXIS 869 (1989).

Where evidence unequivocally showed an act of penetration by defendant, and the only conflict presented by the evidence was whether intercourse was consensual or by force, the trial court did not err in denying request for an instruction on attempted second-degree rape. State v. Graham, 118 N.C. App. 231, 454 S.E.2d 878, 1995 N.C. App. LEXIS 165 (1995).

Jury instruction for second degree rape was not fatally ambiguous simply because the physical helplessness clause and the mental incapacity clause were joined in the disjunctive. State v. Haddock, 191 N.C. App. 474, 664 S.E.2d 339, 2008 N.C. App. LEXIS 1483 (2008).

Defendant was entitled to a new trial because the trial court erred when the court did not include the words “due to any act committed upon the victim,” as stated in G.S. 14-27.1(2), in the jury instruction at defendant’s trial for second degree rape. State v. Haddock, 191 N.C. App. 474, 664 S.E.2d 339, 2008 N.C. App. LEXIS 1483 (2008).

Trial court committed plain error by failing to charge jury on attempted second-degree rape (G.S. 14-27.3) and attempted incest (G.S. 14-178), as the evidence regarding penetration was conflicting; defendant denied penetration, claiming he could not maintain an erection, and the victim’s statements also put the fact of penetration in doubt. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Instruction on Lesser Offense Not Required. —

In prosecutions for rape, when all the evidence tends to show a completed act of intercourse and the only issue is whether the act was with the prosecuting witness’s consent or by force and against her will, it is not proper to submit to the jury lesser offenses included within a charge of rape. State v. Jeffries, 57 N.C. App. 416, 291 S.E.2d 859, 1982 N.C. App. LEXIS 2678 (1982).

Where the State’s evidence showed that defendant engaged in sexual intercourse with the prosecuting witness by force and against her will, while defendant’s evidence showed that he and the prosecuting witness were engaged in consensual sexual foreplay when the prosecuting witness bit him, causing him to lose interest, there was no evidence of a failed attempt at nonconsensual intercourse, and the court thus did not err in failing to charge on the lesser included offense of attempted second-degree rape. State v. Taylor, 79 N.C. App. 635, 339 S.E.2d 859, 1986 N.C. App. LEXIS 2087 (1986).

Sentencing Enhancement Based on Foreign Conviction. —

Defendant’s South Carolina third degree criminal sexual conduct conviction was substantially similar to North Carolina second-degree forcible rape and second-degree forcible sexual offense because (1) second-degree forcible rape and second-degree forcible sexual offense had identical elements except the underlying sexual conduct, and (2) South Carolina’s definition of “sexual battery” included vaginal intercourse as well as all conduct constituting a “sexual act” in North Carolina. State v. Bryant, 255 N.C. App. 93, 804 S.E.2d 563, 2017 N.C. App. LEXIS 656 (2017).

When Lesser Offense May Be Withdrawn from Jury Consideration. —

Where under the evidence the jury could not reasonably find that defendant’s intercourse with female was consensual and therefore that he did not commit the offense of second degree rape as charged in the indictment, but that he did commit the lesser included offense of assault on a female, it was not error to withdraw the lesser included offense from the jury’s consideration. State v. Jeffries, 57 N.C. App. 416, 291 S.E.2d 859, 1982 N.C. App. LEXIS 2678 (1982).

§ 14-27.23. Statutory rape of a child by an adult.

  1. A person is guilty of statutory rape of a child by an adult if the person is at least 18 years of age and engages in vaginal intercourse with a victim who is a child under the age of 13 years.
  2. A person convicted of violating this section is guilty of a Class B1 felony and shall be sentenced pursuant to Article 81B of Chapter 15A of the General Statutes, except that in no case shall the person receive an active punishment of less than 300 months, and except as provided in subsection (c) of this section. Following the termination of active punishment, the person shall be subject to enrollment in satellite-based monitoring as provided in Part 5 of Article 27A of Chapter 14 of the General Statutes.
  3. Notwithstanding the provisions of Article 81B of Chapter 15A of the General Statutes, the court may sentence the defendant to active punishment for a term of months greater than that authorized pursuant to G.S. 15A-1340.17 , up to and including life imprisonment without parole, if the court finds that the nature of the offense and the harm inflicted are of such brutality, duration, severity, degree, or scope beyond that normally committed in such crimes, or considered in basic aggravation of these crimes, so as to require a sentence to active punishment in excess of that authorized pursuant to G.S. 15A-1340.17 . If the court sentences the defendant pursuant to this subsection, it shall make findings of fact supporting its decision, to include matters it considered as egregious aggravation. Egregious aggravation can include further consideration of existing aggravating factors where the conduct of the defendant falls outside the heartland of cases even the aggravating factors were designed to cover. Egregious aggravation may also be considered based on the extraordinarily young age of the victim, or the depraved torture or mutilation of the victim, or extraordinary physical pain inflicted on the victim.
  4. Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.
  5. The offense under G.S. 14-27.24 is a lesser included offense of the offense in this section.

History. 2008-117, s. 1; 2015-181, s. 5(a), 5(b); 2021-182, s. 2(k).

Editor’s Note.

This section was enacted as G.S. 14-27.2 A and was recodified as G.S. 14-27.2 3 by Session Laws 2015-181, s. 5(a), effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 5(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2021-182, s. 2(m), made the amendments to subsection (b) of this section by Session Laws 2021-182, s. 2(k), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Effect of Amendments.

Session Laws 2015-181, s. 5(b), effective December 1, 2015, rewrote the section heading, which read: “Rape of a child; adult offender”; substituted “statutory rape of a child by an adult” for “rape of a child” in subsection (a); and substituted “G.S. 14-27.24” for “G.S. 14-27.2(a)(1)” in subsection (e). For applicability, see editor’s note.

Session Laws 2021-182, s. 2(k), in the second sentence of subsection (b), substituted “subject to enrollment in satellite-based monitoring as provided in” for “enrolled for life pursuant to.” For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Kennedy v. Louisiana and the Abolition of the Death Penalty for Child Rape: Euthanizing Evolving Standards of Decency,” see 45 Wake Forest L. Rev. 231 (2010).

For article, “Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina,” see 38 Campbell L. Rev. 151 (2016).

CASE NOTES

Intent. —

Intent element of statutory rape does not require that the defendant intend to engage in vaginal intercourse with an underage person, because mistake or lack of knowledge of age is not a defense. Nonetheless, both completed and attempted statutory rape require that the defendant intend to commit a sexual act with the victim. State v. Watson, 277 N.C. App. 314, 858 S.E.2d 354, 2021- NCCOA-186, 2021 N.C. App. LEXIS 206 (2021).

Motion to Dismiss Properly Denied. —

Because there was substantial evidence presented that the offense of rape of a child was committed by defendant on or after the effective date of the statute, the trial court did not err in denying defendant’s motion to dismiss that charge at the close of all of the evidence. State v. Agustin, 229 N.C. App. 240, 747 S.E.2d 316, 2013 N.C. App. LEXIS 881 (2013).

Sufficient Evidence. —

Sufficient evidence supported defendant’s conviction for rape of a child, G.S. 14-27.2 A, because, in addition to the victim’s testimony that defendant put his “manhood inside her middle hole,” there was evidence of the victim’s contemporaneous diary drawing depicting vaginal intercourse, defendant’s sperm on the victim’s bed, and medical testimony describing injuries to the victim’s vaginal area; although the victim used potentially ambiguous terms such as “middle hole” and “bottom hole,” the victim’s testimony made clear what parts she was referring to during her descriptions of sexual abuse. State v. Combs, 226 N.C. App. 87, 739 S.E.2d 584, 2013 N.C. App. LEXIS 284 (2013).

Trial court did not err in denying defendant’s motion to dismiss the charge of attempted first-degree rape of a child for insufficiency of the evidence because the record evidence tending to show that a completed rape occurred in the victim’s bedroom sufficed to support defendant’s conviction; evidence of a completed rape is sufficient to support an attempted rape conviction. State v. Baker, 369 N.C. 586 , 799 S.E.2d 816, 2017 N.C. LEXIS 406 (2017).

Jury Instruction on Lesser-Included Offense of First-Degree Rape. —

Because there was no dispute as to the age of defendant, but, rather, defendant contended that he did not commit the crime of rape of a child, under plain error review, the trial court did not err in failing to instruct the jury upon the lesser offense of first-degree rape. State v. Agustin, 229 N.C. App. 240, 747 S.E.2d 316, 2013 N.C. App. LEXIS 881 (2013).

Sentence Proper. —

Because the rape of a child statute mandates a minimum sentence of 300 months, with a corresponding maximum sentence, the sentence of 300-369 imposed by the trial court was in accordance with the statute. State v. Agustin, 229 N.C. App. 240, 747 S.E.2d 316, 2013 N.C. App. LEXIS 881 (2013).

Even though the trial court should not have referenced the Bible or divine judgment in sentencing, the defendant failed to show that the defendant was prejudiced as the trial court sentenced the defendant at the mandatory minimum for rape of a child and within the presumptive range for the Class B1 offenses. State v. Earls, 234 N.C. App. 186, 758 S.E.2d 654, 2014 N.C. App. LEXIS 553 (2014).

Trial court erred in granting defendant appropriate relief because the original 300-month sentence did not violate the Eighth Amendment rape of a child and sexual offense with a child carried a mandatory minimum sentence of 300 months imprisonment, and defendant’s 300-month sentence was less than or equal to the sentences of many other offenders of the same crime. State v. Thomsen, 242 N.C. App. 475, 776 S.E.2d 41, 2015 N.C. App. LEXIS 677 (2015), aff'd, 369 N.C. 22 , 789 S.E.2d 639, 2016 N.C. LEXIS 651 (2016).

Sentence Enhancement Based on Foreign Conviction. —

Defendant’s South Carolina first degree criminal sexual conduct with minors conviction was not substantially similar to North Carolina statutory rape of a child by an adult or statutory sexual offense with a child by an adult because the statutes’ disparate age requirements created different offenders and different victims. State v. Bryant, 255 N.C. App. 93, 804 S.E.2d 563, 2017 N.C. App. LEXIS 656 (2017).

§ 14-27.24. First-degree statutory rape.

  1. A person is guilty of first-degree statutory rape if the person engages in vaginal intercourse with a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim.
  2. Any person who commits an offense defined in this section is guilty of a Class B1 felony.
  3. Upon conviction, a person convicted under this section has no rights to custody of or rights of inheritance from any child born as a result of the commission of the rape, nor shall the person have any rights related to the child under Chapter 48 or Subchapter 1 of Chapter 7B of the General Statutes.

History. 1979, c. 682, s. 1; 1979, 2nd Sess., c. 1316, s. 4; 1981, c. 63; c. 106, ss. 1, 2; c. 179, s. 14; 1983, c. 175, ss. 4, 10; c. 720, s. 4; 1994, Ex. Sess., c. 22, s. 2; 2004-128, s. 7; 2015-181, s. 6.

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

As to essentials of bill of indictment for rape, see G.S. 15-144.1 .

As to exclusion of bystanders during trial for rape or other sex offense, see G.S. 15-166 .

As to venue for trial of sex offenses where victim was transported, see G.S. 15A-136 .

As to office of coordinator of services for victims of sexual assault, see G.S. 143B-394.1 et seq.

Editor’s Note.

Session Laws 2015-181, s. 48, made the enactment of this section by Session Laws 2015-181, s. 6, effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2004-128, s. 7, effective December 1, 2004, and applicable to offenses committed on or after that date, added subsection (c).

Legal Periodicals.

For note on United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), and its impact upon State capital punishment legislation, see 47 N.C.L. Rev. 421 (1969).

For comment on constitutional restrictions on the imposition of capital punishment, see 5 Wake Forest Intra. L. Rev. 183 (1969).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For comment on capital punishment and evolving standards of decency, see 16 Wake Forest L. Rev. 737 (1980).

For an article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For note discussing the constitutionality of North Carolina’s Rape-Shield Law, see 17 Wake Forest L. Rev. 781 (1981).

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note discussing “serious personal injury” in rapes and sexual offenses in light of State v. Boone, 307 N.C. 198 , 297 S.E.2d 585 (1982), see 19 Wake Forest L. Rev. 881 (1983).

For comment, “The Use of Rape Trauma Syndrome as Evidence in a Rape Trial: Valid or Invalid?,” see 21 Wake Forest L. Rev. 93 (1985).

For note, “State v. Smith: Facilitating the Admissibility of Hearsay Statements in Child Sexual Abuse Cases,” see 64 N.C.L. Rev. 1352 (1986).

For note, “State v. Stafford: Rape Trauma Syndrome and the Admissibility of Statements Made by Rape Victims,” see 64 N.C.L. Rev. 1364 (1986).

For article, “Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated,” see 66 N.C.L. Rev. 283 (1988).

For note, “State v. Strickland: Evening the Odds in Rape Trials! North Carolina Allows Expert Testimony on Post Traumatic Stress Disorder to Disprove Victim Consent,” see 69 N.C.L. Rev. 1624 (1991).

For note entitled, “Michigan v. Lucas: Failure to Define the State Interest in Rape Shield Legislation,” see 70 N.C.L. Rev. 1592 (1992).

For comment, “Old Wine in New Bottles: The ‘Marital’ Rape Allowance,” see 72 N.C.L. Rev. 261 (1993).

For note, “Serious Personal Injury Requirement for Rape Is Met by Mental Injury Alone — State v. Baker,” see 21 N.C. Cent. L.J. 368 (1995).

For comment, “The Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

For article, “Poor Whites, Benevolent Masters, and the Ideologies of Slavery: The Local Trial of a Slave Accused of Rape,” see 85 N.C.L. Rev. 489 (2007).

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For article, “Searching for Adequate Accountability: Supervisory Priests and the Church’s Child Sex Abuse Crisis,” see 66 Duke L.J. 1149 (2017).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Many of the annotations under this section are from cases decided under former statutory provisions.

Constitutionality of Former G.S. 14-21 . —

See State v. Wilson, 296 N.C. 298 , 250 S.E.2d 621, 1979 N.C. LEXIS 1149 (1979).

Double Jeopardy Prohibitions Held Not Violated. —

Where defendant was convicted of first-degree rape under subdivision (a)(1) of this section and taking indecent liberties under G.S. 14-202.1 , these convictions did not violate the double jeopardy prohibitions under either our State or the federal Constitution. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

It is not double jeopardy for a defendant to be punished for convictions of rape, incest, and taking indecent liberties with a minor when all the convictions were based on one incident. State v. Fletcher, 322 N.C. 415 , 368 S.E.2d 633, 1988 N.C. LEXIS 370 (1988).

Elements Required. —

In order to prove first-degree rape, it is sufficient that the State demonstrate that the defendant engaged in vaginal intercourse with another person by force and against the will of the other person and either (1) employed or displayed a dangerous weapon or (2) inflicted serious personal injury upon the victim or another person. State v. Worsley, 336 N.C. 268 , 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

History of Offense. —

See State v. Dick, 6 N.C. 388 , 1818 N.C. LEXIS 38 (1818); State v. Jesse, 20 N.C. 95 , 1838 N.C. LEXIS 69 (1838); State v. Johnston, 76 N.C. 209 , 1877 N.C. LEXIS 209 (1877).

Rape by force and against the victim’s will is an act of violence by any definition, and it is a crime of violence as a matter of law. State v. Artis, 325 N.C. 278 , 384 S.E.2d 470 (1989) sentence vacated and remanded for further consideration at 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990). in light of State v. Grant, 57 N.C. App. 589, 291 S.E.2d 913, 1982 N.C. App. LEXIS 2688 .

The language of this section, “serious personal injury,” and the legislative context in which it arose, differs substantially from the language of G.S. 14-32 , “serious injury.” State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Indians. —

This section does not apply where the alleged acts were those of one Indian against another Indian within Indian country. United States v. Welch, 822 F.2d 460, 1987 U.S. App. LEXIS 8478 (4th Cir. 1987).

Generally, rape is not a continuous offense, but each act of intercourse constitutes a distinct and separate offense. State v. Small, 31 N.C. App. 556, 230 S.E.2d 425, 1976 N.C. App. LEXIS 2059 (1976), cert. denied, 291 N.C. 715 , 232 S.E.2d 207, 1977 N.C. LEXIS 1265 (1977).

Separate Acts of Intercourse as Separate Offenses. —

Where after defendant completed intercourse with first victim, he was not successful in his attempts with second victim, and he then completed the act with the first victim for a second time, each of his acts of forcible intercourse with the first victim was a separate rape rather than a continuing offense. State v. Dudley, 319 N.C. 656 , 356 S.E.2d 361, 1987 N.C. LEXIS 2078 (1987).

Although defendant’s husband did not fully penetrate the 11-year-old victim until his third attempt, each separate act of intercourse was complete and sufficient to sustain an indictment for first degree rape, and no double jeopardy occurred when the defendant/wife was convicted as an aider and abettor for two counts of attempted rape and one count of rape. State v. Owen, 133 N.C. App. 543, 516 S.E.2d 159, 1999 N.C. App. LEXIS 620 (1999).

Intoxication is not a defense to the crime of rape. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Imposition of a mandatory life sentence for first-degree rape is not constitutionally disproportionate and is not cruel and unusual punishment as prohibited by U.S. Const., Amend. VIII and N.C. Const., Art. I, § 27. State v. Peek, 313 N.C. 266 , 328 S.E.2d 249, 1985 N.C. LEXIS 1531 (1985).

Provision in this section for a mandatory life sentence for a conviction of rape in the first degree is not unconstitutional under U.S. Const., Amends. VIII and XIV. State v. McClintick, 315 N.C. 649 , 340 S.E.2d 41, 1986 N.C. LEXIS 1884 (1986).

Imposition of sentences of life imprisonment for first degree rape and first degree sexual offense does not violate the prohibition against cruel and unusual punishments. State v. Spaugh, 321 N.C. 550 , 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

Sentencing Factors. —

Where a defendant has been charged with rape in the first degree under subdivision (a)(2)a of this section but has pled guilty to rape in the second degree under subdivision (a)(2) of G.S. 14-27.3 , if the sentencing judge concludes by a preponderance of the evidence that the defendant had used a gun during the rape, this would be a factor that must be considered in deciding whether to sentence the defendant beyond the presumptive term for the admitted offense. State v. Melton, 307 N.C. 370 , 298 S.E.2d 673, 1983 N.C. LEXIS 1085 (1983).

Due to the General Assembly giving children under 13 greater protection from first-degree rape than victims over 13, the rape of a victim under 13 by a defendant at least 12 and at least four years older than the victim makes the defendant more blameworthy, because rape victims under 13 are in fact more vulnerable to the crime of rape than they would otherwise be if older than 12. This does not, however, allow the age of the victim to be considered in sentencing for first-degree rape, because (1) age is an element of first-degree rape under subdivision (1) of subsection (a) of this section and as such cannot be considered an aggravating factor upon sentencing for that crime under G.S. 15A-1340.4(a)(1)(p), and (2) first-degree rape is a Class B felony which carries a mandatory life sentence without consideration of aggravating and mitigating factors, under G.S. 14-1.1(a)(2). State v. Vanstory, 84 N.C. App. 535, 353 S.E.2d 236, 1987 N.C. App. LEXIS 2528 (1987), disapproved, State v. Farlow, 336 N.C. 534 , 444 S.E.2d 913, 1994 N.C. LEXIS 291 (1994).

Unanimity of Verdict. —

Defendant’s convictions for first-degree rape of a child under the age of 13, in violation of G.S. 14-27.2(a)(1), were affirmed because the trial court did not violate defendant’s right to a unanimous verdict based upon generic testimony, or evidence of more incidents than there were criminal charges. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Right to Unanimous Jury Verdict not Violated. —

Defendant was not deprived of defendant’s right to a unanimous jury verdict as to charges of first-degree statutory sexual offense under G.S. 14-27.2 , statutory sexual offense against a person who was 13, 14, or 15 years old under G.S. 14-27.4(a)(1), taking indecent liberties with a child under G.S. 14-202.1 , second-degree forcible sexual offense under G.S 14-27.5, and assault on a female by a male at least 18 years of age under G.S. 14-33(c)(2) as: (1) the indictments were valid absent the inclusion of the specific acts that constituted the alleged sexual offenses; (2) the jury instructions and verdict sheets for each offense specifically identified each case by its number, listed the date on which each offense was alleged to have occurred, and listed the specific acts that were to serve as the underlying basis for each offense; (3) the jury was instructed specifically in each case in which defendant was charged with multiple counts of the same offense involving the same victim; (4) there was nothing in the record to indicate that the jury was confused by either the trial court’s instructions or the verdict sheets; and (5) the jury was polled following the announcement of the verdicts. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Election by State. —

By unequivocally arraigning defendant on second-degree rape and by failing thereafter to give any notice whatsoever, prior to the jury being impaneled and jeopardy attaching, of an intent instead to pursue a conviction for first-degree rape arguably supported by the short-form indictment, the State made a binding election not to pursue the greater degree of the offense, and such election was tantamount to an acquittal of first-degree rape. State v. Jones, 317 N.C. 487 , 346 S.E.2d 657, 1986 N.C. LEXIS 2420 (1986).

Assault on a female is not a lesser included offense of rape, because assault on a female contains elements not present in the greater offense of rape. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Multiple Short-Form Indictments Did Not Create a Danger of Ununanimous Verdicts. —

Appellate court erred in reversing defendant’s convictions of first-degree statutory rape, G.S. 14-27.2 , and taking indecent liberties with a minor, G.S. 14-202.1(a)(1), as defendant was properly charged by short-form indictments on all the charges as authorized by G.S. 15-144.2(a), because there was no danger of a nonunanimous verdict resulting from the multiple indictments in violation of N.C. Const. Art. 1, § 24, and G.S. 15A-1237(b), as even if some jurors disagreed on the kinds of sexual misconduct committed, the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of any immoral, improper, or indecent liberties as required by G.S. 14-202.1(a)(1), and because defendant was indicted on five counts of statutory rape, the victim testified to five specific incidents of statutory rape, and five verdicts of guilty were returned. State v. Lawrence, 360 N.C. 368 , 627 S.E.2d 609, 2006 N.C. LEXIS 30 (2006).

Instruction on Parole Ineligibility in Capital Case. —

Where a State prisoner, who was convicted of first-degree murder, first-degree rape, kidnapping, armed robbery, and the burning of personal property, in violation of G.S. 14-17 , 14-27.2(a)(2), 14-39, 14-87, and 14-66, argued that the sentencing court erred by failing to provide a parole ineligibility instruction, the prisoner, who was sentenced to death for the murder conviction, was not entitled to federal habeas corpus relief because the prisoner would have been eligible for parole under former G.S. 15A-1371(a1) if the jury had recommended life imprisonment; thus, because the prisoner was eligible for parole as a matter of law, the prisoner was not entitled to a parole ineligibility instruction. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

Error In Ordering Lifetime Satellite-Based Monitoring. —

Trial court erred in finding that lifetime satellite-based monitoring was required for defendant and in failing to order that a risk assessment of defendant be performed pursuant to G.S. 14-208.40 A(d) prior to ordering him to enroll in a lifetime satellite-based monitoring program upon release from prison because defendant was convicted for first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1, not attempted rape of a child, pursuant to G.S. 14-27.2 A as found by the trial court; the trial court did not find that defendant was a sexually violent predator or that he was a recidivist, and it found that the offense was not an aggravated offense. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

Satellite-Based Monitoring Proper. —

Imposition of lifetime satellite-based monitoring was appropriate because defendant was convicted of first-degree rape, which required vaginal penetration; without engaging in an improper examination of the facts giving rise to the crimes for which defendant was convicted, the trial court could have ascertained that both vaginal penetration and force were involved. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Prosecutorial Comments in Closing Argument. —

Defendant’s convictions for first-degree rape of a child under the age of 13, in violation of G.S. 14-27.2(a)(1), were affirmed because the trial court did not err by failing to intervene ex mero motu to limit certain remarks made by the State in its closing argument; in the remarks, the prosecutor referred to defendant as “vile,” “amoral,” “wicked,” and “evil.” State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

II.Indictment

In enacting subsection (a), the General Assembly has provided for a “shortened form” of the rape indictment which explicitly eliminates the requirement that the indictment contain allegations of every element of the offense. State v. Corbett, 307 N.C. 169 , 297 S.E.2d 553, 1982 N.C. LEXIS 1669 (1982).

Construction With G.S. 15-144.1 . —

In a rape prosecution, the fact that a lesser charge of assault on a female would not be available when a defendant asserts that the intercourse was consensual does not nullify the reference in G.S. 15-144.1 to assault on a female. A jury could find a defendant not guilty of rape under G.S. 14-27.2 or G.S. 14-27.3 based on evidence that defendant’s penis had not vaginally penetrated the victim. State v. Thomas, 196 N.C. App. 523, 676 S.E.2d 56, 2009 N.C. App. LEXIS 520 (2009).

Allegation of Intent. —

Intent is not an element of the offense of raping a female child under the age of 12 years (now 12 years or less), and a motion to quash an indictment therefor on the ground that it failed to allege “intent” is properly denied. State v. Gibson, 221 N.C. 252 , 20 S.E.2d 51, 1942 N.C. LEXIS 448 (1942).

Indictment Was Valid. —

Indictment charging defendant with statutory sexual offense under G.S. 14-27.2 , statutory sexual offense of a person who was 13, 14, or 15 years of age under G.S. 14-27.7 A, taking indecent liberties with a child under G.S. 14-202.1 , and forcible sexual offense under G.S. 14-27.5 that did not list the specific underlying sexual acts was valid, as the jury was instructed on the specific sexual acts that were to serve as the underlying act for each charged offense; when a short form indictment properly alleged the essential elements of the offense, it did not have to allege every matter required to be proved on the trial under G.S. 15-144.2(a), and indictments charging indecent liberties with a child or a sexual offense were valid even when they did not contain a specific allegation regarding which specific sexual act was committed. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Allegation of “By Force and Against The Will”. —

An indictment for rape must use the words “by force” or their equivalent in describing the manner in which the assault was accomplished. State v. Benton, 226 N.C. 745 , 40 S.E.2d 617, 1946 N.C. LEXIS 366 (1946).

The absence of both “forcibly” and “against her will” in the indictment is fatal, but “forcibly” can be supplied by any equivalent word. It is not supplied by the use of the word “ravish,” but is sufficiently charged by the words “feloniously and against her will.” State v. Johnson, 226 N.C. 266 , 37 S.E.2d 678, 1946 N.C. LEXIS 427 (1946).

Bill of indictment charging the rape of a “child under the age of 13 years,” although a valid indictment for a rape occurring after Oct. 1, 1983, did not allege a criminal offense for a rape allegedly occurring before the amendment to the statute, effective Oct. 1, 1983, substituting “a child under the age of 13 years” for “a child of the age of 12 years or less.” Therefore, the trial court did not have subject matter jurisdiction and the judgment entered would be arrested. State v. Howard, 317 N.C. 140 , 343 S.E.2d 538, 1986 N.C. LEXIS 2390 (1986) (holding, however, that the State could seek an indictment of defendant based upon the statute in effect on Feb. 15, 1983) .

Indictment charging defendant with first degree rape was fatally defective and should have been quashed, where it charged defendant, pursuant to this section, with the rape of “a child under the age of 13 years” during the “academic school year of 1981.” This section was amended effective October 1, 1983, by substituting “a child under the age of 13 years” for “a child of the age of 12 years or less.” Thus, at the time of the alleged offense, the prior statute controlled. State v. Trent, 320 N.C. 610 , 359 S.E.2d 463, 1987 N.C. LEXIS 2326 (1987).

Failure of Indictment to Allege Date of Crime. —

Because time did not constitute an element of first-degree rape, time was not of the essence of the crime; accordingly, in a case where the failure of the indictments to allege any date on which the offenses occurred would not be grounds for dismissal of the charges, the designation of a two-year period was not grounds for dismissal. State v. McKinney, 110 N.C. App. 365, 430 S.E.2d 300, 1993 N.C. App. LEXIS 502 , cert. denied, 334 N.C. 437 , 433 S.E.2d 182, 1993 N.C. LEXIS 363 (1993).

Violation of Subdivision (a)(2)c Not Alleged. —

Juvenile petition alleging that juvenile who was under the age of 12 at the time of the offense “did unlawfully willfully and feloniously carnally know and abuse . . . a child 6 years old and thus of the age of 12 years or less in violation of . . . G.S. 14-27.2 ” was insufficient to allege a violation of subdivision (a)(2)c of this section. State v. Drummond, 81 N.C. App. 518, 344 S.E.2d 328, 1986 N.C. App. LEXIS 2322 (1986).

Separate Indictment Required As to Earlier Incidents. —

When a defendant charged with rape admits that he had sexual intercourse with the prosecutrix, neither the State nor the defendant is entitled to have the jury consider a lesser included offense on the basis of incidents which might have preceded the sexual intercourse because the bill of indictment charging only rape does not encompass such earlier incidents but is directed only to the sexual intercourse itself; thus, if the State contends defendant committed some other crime, such as assault, prior to the rape itself, it should file a separate indictment or add a count to the rape indictment charging this other crime. State v. Edmondson, 302 N.C. 169 , 273 S.E.2d 659, 1981 N.C. LEXIS 1028 (1981).

Statutory Rape Not Lesser Included Offense of Incest. —

Trial court did not err in sentencing defendant for statutory rape and incest because statutory rape was not a lesser included offense of incest; the elements of statutory rape are not all included in the elements of incest, since statutory rape requires a showing of the victim’s and the defendant’s age, while the elements of incest can be proven without any reference to age, and incest requires a familial relationship that is not required for one to be convicted of statutory rape. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Effect of Verdict Where Indictment Insufficient. —

Where an indictment is insufficient to charge first-degree rape, but is sufficient to charge second-degree rape, and the evidence is clearly sufficient to support a guilty verdict for that offense, the verdict must be regarded as a verdict of guilty of second-degree rape, and the defendant may not be sentenced for first-degree rape. The case must be remanded for entry of a verdict of guilty of second-degree rape and for a proper judgment on that verdict. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

Failure to Submit Crime as Charged in Indictment. —

Where defendant was charged with forcible first-degree rape, the failure of the trial court to submit the case to the jury pursuant to such crime as charged in the indictment amounted to a dismissal of that charge and all lesser included offenses. Therefore, by this failure the trial judge dismissed the first and second-degree rape charges alleged in the indictment. State v. Williams, 318 N.C. 624 , 350 S.E.2d 353, 1986 N.C. LEXIS 2739 (1986).

Where the jury was instructed and reached its verdict on the basis of the elements set out in subdivision (a)(1) of this section, whereas defendant had been charged with rape on the basis of the elements set out in subdivision (a)(2) and in G.S. 14-27.3(a)(1), the indictment under which defendant was brought to trial could not be considered to have been a valid basis on which to rest the judgment. State v. Williams, 318 N.C. 624 , 350 S.E.2d 353, 1986 N.C. LEXIS 2739 (1986).

III.Other Crimes

Separate Crimes Arising Out of Same Events. —

Where a burglar, after breaking and entering, proceeds to rape someone inside the dwelling, he can be convicted of both burglary and rape. State v. Brady, 299 N.C. 547 , 264 S.E.2d 66, 1980 N.C. LEXIS 986 (1980).

Defendant’s conviction of felonious larceny, armed robbery, burglary, and rape, all of which arose out of the same series of events, did not place defendant in double jeopardy, since the four offenses were legally separate and distinct crimes, no one of which was a lesser included offense of the other; each clearly required the proof of at least one essential element not embodied in any of the other three offenses at issue; and the four felonies were factually distinct and independent crimes in this case. State v. Revelle, 301 N.C. 153 , 270 S.E.2d 476, 1980 N.C. LEXIS 1155 (1980).

Defendants’ convictions of both first-degree kidnapping and rape against one victim and of first-degree kidnapping and both first-degree rape and first-degree sex offense against the other could not all stand, even though the combination of convictions, because of the manner in which they were consolidated for judgment, resulted in no additional punishment attributable to any of the kidnapping cases, where it could not be said that the jury’s verdict of first-degree kidnapping was based upon a sexual assault other than the ones forming the basis for the other convictions. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

The holding in State v. Price, 313 N.C. 297 , 327 S.E.2d 863 (1985), that no principle of double jeopardy was violated by entry of judgments that the defendant committed both rape in the first degree and kidnapping in the first degree was overruled. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

Defendant may not be separately punished for the offenses of first-degree rape and first-degree kidnapping where the rape is the sexual assault used to elevate kidnapping to the first degree. State v. Mason, 317 N.C. 283 , 345 S.E.2d 195, 1986 N.C. LEXIS 2775 (1986).

Although some restraint is inherent in the crime of forced rape, the restraint, confinement, and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape. State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

Asportation of a rape victim is sufficient to support a charge of kidnapping if the defendant could have perpetuated the offense when he first threatened the victim, and instead, took the victim to a more secluded area to prevent others from witnessing or hindering the rape; such asportation is separate and independent of the rape, is removal for the purpose of facilitating the felony of rape, and is, therefore, kidnapping pursuant to G.S. 14-39 . State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

Convictions of first-degree kidnapping and first-degree rape could not both stand, where there was evidence of an unindicted sexual offense and of a first degree sexual offense for which defendant was indicted but not convicted, as well as evidence of the rape for which defendant was both indicted and convicted, but the trial court did not specify in its instructions to the jury in the kidnapping case which of these sexual assaults the jury might use to satisfy the “sexual assault” element of the first degree kidnapping. State v. Freeman, 319 N.C. 609 , 356 S.E.2d 765, 1987 N.C. LEXIS 2083 (1987).

A criminal defendant cannot be convicted of both first degree kidnapping and sexual assault when the latter was used to prove an element of the kidnapping, and thus where the jury may not have understood that it could only convict for first degree kidnapping by using the unindicted sexual assault, rather than the attempted rape of which defendant was convicted to supply the sexual assault element of the crime of first degree kidnapping, defendant’s convictions of both first degree kidnapping and attempted first degree rape could not stand. State v. Fisher, 321 N.C. 19 , 361 S.E.2d 551, 1987 N.C. LEXIS 2496 (1987).

Vaginal intercourse is not an element of taking indecent liberties with a minor, and committing the act for the purpose of arousing or gratifying sexual desire is not an element of rape. Thus defendant was not placed in double jeopardy by being convicted of both crimes. State v. Rhodes, 321 N.C. 102 , 361 S.E.2d 578, 1987 N.C. LEXIS 2489 (1987).

A defendant cannot be convicted of both first-degree rape and first-degree kidnapping when the rape is used to prove an element of the kidnapping charge. State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214, 1989 N.C. App. LEXIS 1027 (1989), cert. denied, dismissed, 327 N.C. 485 , 397 S.E.2d 227, 1990 N.C. LEXIS 851 (1990).

Trial court properly allowed the jury to review the evidence of defendant’s commission of rape and sexual offense under both a theory of statutory rape/sexual offense and forcible rape/sexual offense, however upon the jury’s verdicts of guilty under both theories, the judgment had to be arrested on one count of first-degree rape and on one count of first-degree sexual offense; separate convictions for these offenses, even though consolidated for a single judgment, had potentially severe adverse collateral consequences. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Conspiracy. —

Where evidence shown that victim told a co-defendant that she did not want to have sex with him, defendant purportedly laughed when the victim asked to be taken back to where they had found her, and defendant engaged in sex acts with victim, the evidence taken was adequate to support the inference that defendant made an agreement with the co-defendant to commit rape in the first degree and the trial court did not err in submitting the charge of conspiracy to commit first-degree rape to the jury. State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

First- and Second-Degree Rape Distinguished. —

The sole distinction between the crimes of first and second-degree rape is the element of the use of a deadly weapon or aiding and abetting. If serious bodily injury is inflicted, the crime is also first-degree rape. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

One difference between rape in the first degree under subdivision (a)(2)a of this section and rape in the second degree under G.S. 14-27.3 is that in the former but not in the latter a deadly weapon must have been used to effectuate the rape. State v. Corbett, 309 N.C. 382 , 307 S.E.2d 139, 1983 N.C. LEXIS 1390 (1983).

A verdict of guilty of rape in the first degree necessarily includes the jury’s determination that the defendant is guilty of each element of rape in the second degree. State v. Perry, 291 N.C. 586 , 231 S.E.2d 262, 1977 N.C. LEXIS 1223 (1977).

Assault on Child Under 12 Not Lesser Included Offense. —

Vaginal intercourse with a child under 12 is not itself an assault, since the crime of assault has essential elements which are not also essential elements of statutory rape. For example, assault generally requires proof of state of mind of either the defendant or the victim — the defendant’s intent to do immediate bodily harm or the victim’s reasonable apprehension of such harm. The statutory rape law, subdivision (a)(1) of this section, does not contain a state of mind element, however. Assault on a child under 12, former G.S. 14-33(b)(3), was not, therefore, a lesser included offense of first-degree rape of a child under 12 (now 13), under subdivision (a)(1) of this section. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

The offense of assaulting a child under the age of 12, former G.S. 14-33(b)(3), was not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less (now under the age of 13 years), under subdivision (a)(1) of this section. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

One was guilty of a misdemeanor assault under former G.S. 14-33(b)(3) if he assaulted a child under the age of 12 years. This crime had an essential element which was not also an essential element of the crime of first-degree rape of a child of the age of 12 years or less (now under the age of 13 years). Subdivision (a)(1) of this section provides that a person is guilty of first-degree rape only if he “engages in vaginal intercourse” with the young victim; no concomitant assault is required. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

Nor Is Assault on Female by Male over 18. —

The offense of assault on a female by a male over the age of 18, former G.S. 14-33(b)(2), was not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less (now under the age of 13 years), under subdivision (a)(1) of this section. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

Nor Is Taking Indecent Liberties with Child Under 16. —

The offense of taking indecent liberties with a child under G.S. 14-202.1 is not a lesser included offense of statutory rape under subdivision (a)(1) of this section because the age elements are different and, while sexual purpose may be inherent in an act of forcible vaginal intercourse, it is not required to be proved in order to convict a defendant of rape. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982) (overruling) State v. Shaw, 293 N.C. 616 , 239 S.E.2d 439, 1977 N.C. LEXIS 1011 (1977).

Arrest of Judgment Proper. —

Trial court did not err by electing to arrest judgment on a felonious child abuse with a deadly weapon conviction as only one felony was necessary to support a felony murder conviction, and the jury found that five felonies could support a felony murder charge including forcible rape, statutory rape, forcible sex offense, statutory sex offense, and felony child abuse with a deadly weapon. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Since the indictment for first degree rape did not include the purpose element included in the sexual battery statute, it was insufficient to confer subject matter jurisdiction, and the trial court lacked jurisdiction to enter a judgment of defendant’s guilt on that offense; thus, the court had to arrest judgment. State v. Kelso, 187 N.C. App. 718, 654 S.E.2d 28, 2007 N.C. App. LEXIS 2523 (2007).

IV.Victim under Age

Proof of Force or Infliction of Injury Not Essential. —

The use of deadly force or infliction of serious bodily injury is not an essential element of the crime of rape of a female under the age of 12 (now 13 years). State v. Cobb, 295 N.C. 1 , 243 S.E.2d 759, 1978 N.C. LEXIS 942 (1978).

Neither force nor intent is an element of rape of a female child under the age of 12 years (now 13 years). State v. Jones, 249 N.C. 134 , 105 S.E.2d 513, 1958 N.C. LEXIS 442 (1958); State v. Strickland, 254 N.C. 658 , 119 S.E.2d 781, 1961 N.C. LEXIS 516 (1961); State v. Murry, 277 N.C. 197 , 176 S.E.2d 738, 1970 N.C. LEXIS 565 (1970).

Nor Proof of Assault. —

The lack of an assault requirement under the statutory rape law, subdivision (a)(1) of this section, is understandable given the purpose of the statute. Unlike the provision of the first-degree rape statute that applies if the victim is an adult, subdivision (a)(2) of this section, the forbidden conduct under the statutory rape provision, subdivision (a)(1) of this section, is the act of intercourse itself; any force used in the act, any injury inflicted in the course of the act, or the apparent lack of consent of the child are not essential elements. This is so because the statutory rape law, subdivision (a)(1) of this section, was designed to protect children under 12 (now 13) from sexual acts. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

There is no requirement that the rape of a child be assaultive in character. State v. Zuniga, 320 N.C. 233 , 357 S.E.2d 898, 1987 N.C. LEXIS 2176 , cert. denied, 484 U.S. 959, 108 S. Ct. 359, 98 L. Ed. 2d 384, 1987 U.S. LEXIS 4733 (1987).

Use of Force Presumed. —

Force is conclusively presumed in the case of carnal knowledge of a female under the age of 10 (now 13 years). State v. Dancy, 83 N.C. 608 , 1880 N.C. LEXIS 130 (1880); State v. Crawford, 260 N.C. 548 , 133 S.E.2d 232, 1963 N.C. LEXIS 775 (1963); State v. Summitt, 45 N.C. App. 481, 263 S.E.2d 612, 1980 N.C. App. LEXIS 2653 (1980), aff'd, 301 N.C. 591 , 273 S.E.2d 425, 1981 N.C. LEXIS 1010 (1981); State v. Bruce, 315 N.C. 273 , 337 S.E.2d 510, 1985 N.C. LEXIS 1996 (1985).

Consent No Defense. —

Consent of prosecutrix is no defense in a prosecution for carnal knowledge of a female child under the age of 12 years (now 13 years). State v. Temple, 269 N.C. 57 , 152 S.E.2d 206, 1967 N.C. LEXIS 1026 (1967); State v. Cox, 280 N.C. 689 , 187 S.E.2d 1, 1972 N.C. LEXIS 1292 (1972).

Attempted First-Degree Rape of Child. —

In order to prove attempted first-degree rape of three and a half year old child, the State had to show that the victim was 12 years old or less, that the defendant was at least 12 years old and at least four years older than the victim, that the defendant had the intent to engage in vaginal intercourse with the victim, and that the defendant committed an act that went beyond mere preparation but fell short of actual commission of intercourse. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110, 1985 N.C. App. LEXIS 4330 (1985).

Evidence of 20-year-old defendant’s action with nine-year-old child was sufficient to support the jury’s verdict that defendant was guilty of attempted first degree rape, even though he stopped when she started to cry. State v. Griffin, 319 N.C. 429 , 355 S.E.2d 474, 1987 N.C. LEXIS 2026 (1987).

Juvenile who was under the age of 12 at the time of the offense could not be found guilty of first-degree rape under subdivision (a)(1) of this section for engaging in vaginal intercourse with six-year-old victim where the record contained no evidence of the age of his accomplice. State v. Drummond, 81 N.C. App. 518, 344 S.E.2d 328, 1986 N.C. App. LEXIS 2322 (1986).

Competence of Child as Witness. —

Whether a five-year-old child is competent to testify in a rape prosecution is a matter resting in the sound discretion of the trial judge, and where the evidence upon the voir dire as well as the child’s testimony upon the trial negates abuse of discretion the ruling of the trial court that the child was a competent witness will not be disturbed on appeal. State v. Merritt, 236 N.C. 363 , 72 S.E.2d 754, 1952 N.C. LEXIS 553 (1952).

In a prosecution for rape of a female under 12 years of age, her testimony to the effect that defendant had repeatedly had intercourse with her during the prior several years is competent in corroboration of the offense charged, and the first such occasions will not be held too remote when the evidence discloses that such acts were repeated with regularity up to the date specified in the indictment. State v. Browder, 252 N.C. 35 , 112 S.E.2d 728, 1960 N.C. LEXIS 380 (1960).

Leading Questions Held Proper. —

In prosecution for first-degree rape of six-year-old, the trial court did not abuse its discretion in permitting the prosecutor to ask leading questions on direct examination of the victim. State v. Hannah, 316 N.C. 362 , 341 S.E.2d 514, 1986 N.C. LEXIS 2110 (1986).

Young Victim’s Testimony Held Sufficient. —

Although the victim did not use the word “vagina,” or “genital area,” when describing the sexual assault perpetrated upon her, she did employ words commonly used by females of tender years to describe these areas of their bodies, of which they are just becoming aware, and her testimony was sufficient to require submission of defendant’s guilt of second-degree sexual offense to the jury. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Where a child testified that the defendant stuck his ding dong up her po po, and she demonstrated, using male and female dolls, that the po po is a vagina and the ding dong is a penis, this was substantial evidence from which the jury could find the defendant engaged in vaginal intercourse with his daughter. State v. Fletcher, 322 N.C. 415 , 368 S.E.2d 633, 1988 N.C. LEXIS 370 (1988).

Evidence of Discussion of Sexual Matters in Child’s Presence. —

In a prosecution for the rape of a six-year-old child, evidence that the victim’s father had discussed sexual matters in her presence was not competent as bearing upon consent, since consent is no defense, or to impugn the credibility of the victim’s testimony, or for any other purpose. State v. Cox, 280 N.C. 689 , 187 S.E.2d 1, 1972 N.C. LEXIS 1292 (1972).

Taking Testimony of Child in Absence of Jury. —

In a prosecution for rape of an eight-year-old child, it was error to have the court reporter take the testimony of the child in the absence of the jury and then read to the jury the examination which had been conducted in its absence. State v. Payton, 255 N.C. 420 , 121 S.E.2d 608, 1961 N.C. LEXIS 608 (1961).

Evidence held sufficient to convict a defendant of the offense of engaging in vaginal intercourse with a victim under the age of 13 years, when he was at least 12 years old and at least four years older than the victim. State v. Degree, 322 N.C. 302 , 367 S.E.2d 679, 1988 N.C. LEXIS 281 (1988).

V.Consent

Explicit Threat Unnecessary. —

The absence of an explicit threat inducing consent is not determinative; it is enough if the totality of the circumstances surrounding the actions of defendant give rise to a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sexual contact. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

The words “against the will” connote the victim’s lack of consent. State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982).

Proof of Lack of Consent. —

Evidence of physical resistance is not necessary to prove lack of consent in a rape case. State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977).

Consent Induced by Fear and Violence Is Void. —

Consent of prosecutrix which is induced by fear and violence is void and is no legal consent. State v. Carter, 265 N.C. 626 , 144 S.E.2d 826, 1965 N.C. LEXIS 1068 (1965); State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980); State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977).

Consent of the woman from fear of personal violence is void. Even though a man lays no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man is rape. State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977).

Circumstantial evidence and a co-defendant’s testimony that the victim feared defendant because defendant was carrying a knife was sufficient to prove lack of consent. State v. Hyatt, 355 N.C. 642 , 566 S.E.2d 61, 2002 N.C. LEXIS 676 (2002), cert. denied, 537 U.S. 1133, 123 S. Ct. 916, 154 L. Ed. 2d 823, 2003 U.S. LEXIS 390 (2003), writ denied, 359 N.C. 284 , 610 S.E.2d 382, 2005 N.C. LEXIS 32 (2005), writ denied, 656 S.E.2d 594, 2007 N.C. LEXIS 1244 (N.C. 2007), writ denied, 362 N.C. 90 , 2007 N.C. LEXIS 1475 (2007).

Sexual Encounters for Payment. —

Although the victim was a prostitute and initially sought a sexual encounter for payment, the victim’s fear of defendant was specific to the events leading to defendant’s sexual assaults on and murder of her, so that a jury could reasonably find that there was substantial evidence that the victim withdrew any prior consent to the sexual acts. State v. Penland, 343 N.C. 634 , 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Consent is also not a defense to G.S. 14-27.7 A although the legislature created it as a separate statute, rather than amending this section. State v. Anthony, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Consent Not Shown Where Woman Visits Disreputable Places Unescorted. —

Contributory negligence by the victim is no bar to prosecution by the State for the crime of rape. Hence, the fact that a woman goes, without proper escort, to a place where men of low morals might reasonably be expected to congregate does not establish her consent to have sexual relations with them, although it is competent evidence to be considered by the jury on that question. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967).

VI.Use of Force or Threats

Common Law Meaning. —

The phrase “by force and against her will,” (now “by force and against the will of the other person”) used in this section and G.S. 14-27.3 , 14-27.4 and 14-27.5, means the same as it did at common law when it was used to describe some of the elements of rape. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981); State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982); State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Actual Physical Force Not Required. —

By “force” does not necessarily mean by actual physical force. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

Fear, fright, or duress, may take the place of force. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Primes, 275 N.C. 61 , 165 S.E.2d 225, 1969 N.C. LEXIS 348 (1969); State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977); State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977).

Or Threat of Serious Bodily Injury. —

The mere threat of serious bodily harm which reasonably induces fear thereof constitutes the requisite force. State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

Force Implied in the Case of an Incapacitated Victim. —

It makes no difference in the case of a sleeping or similarly incapacitated victim whether the State proceeds on the theory of a sexual act committed by force and against the victim’s will or whether it alleges an incapacitated victim; force and lack of consent are implied in law. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

The “general fear” theory in State v. Alston, 310 N.C. 399 , 312 S.E.2d 470 (1984), is applicable only to fact situations similar to those in that case. State v. Strickland, 318 N.C. 653 , 351 S.E.2d 281, 1987 N.C. LEXIS 1760 (1987).

Reasonableness of Fear and Fear of Violence. —

The failure of the trial judge in a prosecution for first degree rape to instruct the jury that the fear which induces consent must be reasonable and that the fear must be of violence was not error. Statements contained in prior cases do not establish an objective standard of reasonableness by which the jury must judge consent, and, even if the reasonableness standard were the rule, instructions that the victim’s fear must be reasonable and of violence were unnecessary under the facts of the case. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Evidence of Force Held Sufficient. —

Where it was established that the victim, a 78-year-old lady, had been severely beaten, resulting in multiple contusions and a large bite on her arm, multiple abrasions on her face, a one and one-half inch long laceration on the left side of her scalp, abrasions on both legs, and fractured ribs on her left side, there was evidence sufficient to support a conviction under this section. State v. Green, 305 N.C. 463 , 290 S.E.2d 625, 1982 N.C. LEXIS 1338 (1982).

VII.Dangerous or Deadly Weapons

What Is a Dangerous or Deadly Weapon. —

In order to be characterized as a dangerous or deadly weapon, an instrumentality need not have actually inflicted serious injury. A dangerous or deadly weapon is any article, instrument or substance which is likely to produce death or great bodily injury. State v. Young, 317 N.C. 396 , 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Legislative Intent Regarding Use of Deadly Weapon. —

The legislature intended to make implicit under this section a matter of ordinary common sense: that the use of a deadly weapon, in any manner, in the course of a rape offense, always has some tendency to assist, if not entirely enable, the perpetrator to accomplish his evil design upon the victim, who is usually unarmed. State v. Sturdivant, 304 N.C. 293 , 283 S.E.2d 719, 1981 N.C. LEXIS 1339 (1981); State v. Powell, 306 N.C. 718 , 295 S.E.2d 413, 1982 N.C. LEXIS 1546 (1982).

This section does not require a showing that a dangerous or deadly weapon was used in a particular manner in order to sustain a conviction for first degree rape. Instead it requires a showing only that such a weapon was employed or displayed. State v. Langford, 319 N.C. 340 , 354 S.E.2d 523, 1987 N.C. LEXIS 1923 (1987).

A weapon has been “employed” when defendant has it in his possession at the time of the rape. State v. Langford, 319 N.C. 340 , 354 S.E.2d 523, 1987 N.C. LEXIS 1923 (1987).

“Employs” a Weapon. —

A weapon has been “employed” within the meaning of this section when the defendant has it in his possession at the time of the rape. State v. White, 101 N.C. App. 593, 401 S.E.2d 106, 1991 N.C. App. LEXIS 143 (1991).

Trial court erred by denying defendant’s motions to dismiss the charges of first-degree rape and first-degree sexual offense because the State of North Carolina failed to offer any evidence tending to show that defendant employed or displayed a dangerous or deadly weapon or an article which the victim reasonably believed was a dangerous or deadly weapon, as required by G.S. 14-27.2(a)(2)(a) and G.S. 14-27.4(a)(2)(a). However, the case was remanded for resentencing because the jury’s convictions necessarily included all the elements of second-degree rape and second-degree sexual offense under G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1). State v. Adams, 187 N.C. App. 676, 654 S.E.2d 711, 2007 N.C. App. LEXIS 2572 (2007).

Formerly, it was necessary to show specifically that the weapon was used to overcome the victim’s resistance or to procure her submission, but this section, however, simply necessitates a showing that a dangerous or deadly weapon was employed or displayed in the course of a rape. State v. Powell, 306 N.C. 718 , 295 S.E.2d 413, 1982 N.C. LEXIS 1546 (1982).

Weapons of Conspirators. —

Pursuant to G.S. 14-27.2(a)(2)(a) and (c), there was substantial evidence to support defendant’s conviction of first degree rape, because the co-defendant displayed a handgun during his and defendant’s sexual assault of the victim and the jury could have imputed co-defendant’s use of the handgun to defendant under the theory of acting in concert. State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

Charge That Fake Gun Can Be Deadly or Dangerous Weapon. —

Where the indictment charges violation of this section with the use of deadly weapons, “to wit: a rifle, a shotgun, and a pistol,” a jury instruction that the deadly weapon element of this section would be met if the victim reasonably believed a fake gun to be a dangerous or deadly weapon does not change the theory alleged in the indictment. State v. McKinnon, 306 N.C. 288 , 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Unloaded Gun. —

A gun which is used in the commission of rape to threaten the victim into submission, if not known to be unloaded, is an “article which the other person reasonably believes to be a dangerous or deadly weapon” and is sufficient to meet the definition of first degree rape. State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6, 1991 N.C. App. LEXIS 473 (1991).

Cord. —

Where defendant choked the victim with a cord until she lost consciousness and the manner in which defendant used the rope could have resulted in the victim’s death by strangulation, the only reasonable inference was that the cord as used by defendant was a dangerous weapon as a matter of law. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658, 1988 N.C. App. LEXIS 1067 (1988).

Knife. —

Where the jury, had it been left to determine the nature of the weapon as a factual issue, would have probably found that the knife used in rape of the victim was a dangerous or deadly weapon or at least that the victim reasonably believed it to be such, the court’s instructional error, if any, in instructing the jury that “a knife is a deadly weapon,” had no probable impact on the jury’s finding of guilt so as to merit a new trial despite the defendant’s failure to object to the instruction. State v. Clemmons, 319 N.C. 192 , 353 S.E.2d 209, 1987 N.C. LEXIS 1889 (1987).

Large Knife. —

The trial judge committed no error in taking from the jury the question of whether a knife (described as being a large knife with a long shiny blade), which was capable of cutting a person’s throat, going into the windpipe and going four inches into the stomach, was a deadly weapon. State v. Kuplen, 316 N.C. 387 , 343 S.E.2d 793, 1986 N.C. LEXIS 2227 (1986).

Where there was conflicting evidence on defendant’s use of a knife, proof of which was necessary for a verdict of first-degree rape, victim testifying that defendant employed a knife during the act of rape, while defendant testified that there was no knife in his truck when the incident occurred, and no knife was ever located by investigating officers, the trial court properly included the lesser-included offenses of second-degree rape and second-degree sexual offense in its charge to the jury. State v. Watkins, 89 N.C. App. 599, 366 S.E.2d 876, 1988 N.C. App. LEXIS 355 (1988).

Use of Weapon in Hands of Codefendant as Aggravating Factor. —

Where defendant’s commission of rape through the use of deadly weapons in the hands of his codefendant is a circumstance transactionally related to the commission of second-degree rape and reflective of his individual culpability for the crime, it may be considered by the trial judge and found as an aggravating factor. State v. Collier, 72 N.C. App. 508, 325 S.E.2d 256, 1985 N.C. App. LEXIS 3118 (1985).

Box Cutter as Deadly Weapon. —

Evidence held to amply support the trial judge’s instruction to the effect that utility knife or box cutter used in the perpetration of rape was a dangerous or deadly weapon per se, where in the circumstances of its use, it was likely to produce death or great bodily harm. State v. Torian, 316 N.C. 111 , 340 S.E.2d 465, 1986 N.C. LEXIS 1907 , cert. denied, 479 U.S. 836, 107 S. Ct. 133, 93 L. Ed. 2d 77, 1986 U.S. LEXIS 3637 (1986).

Sufficiency of Evidence. —

In a case in which the defendant and an accomplice raped a woman while the accomplice threatened the victim with a gun, remand was necessary as to charges of first degree rape and first degree sexual offense by anal intercourse because (1) defendant sufficiently preserved the issue for appellate review, and (2) the evidence was insufficient to permit a reasonable jury to convict defendant of the first degree offenses for which no acting in concert instruction was given since the record contained no evidence showing defendant’s personal use or display of a dangerous weapon. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560, 2007 N.C. App. LEXIS 2574 (2007), rev'd in part, 362 N.C. 340 , 663 S.E.2d 311, 2008 N.C. LEXIS 490 (2008).

VIII.Serious Personal Injury

Definitions. —

The term “inflicts serious injury” means physical or bodily injury resulting from an assault with a deadly weapon with intent to kill. The injury must be serious but it must fall short of causing death. Further definition seems neither wise nor desirable. Whether such serious injury has been inflicted must be determined according to the particular facts of each case. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Construction of Terms. —

Some guidance to the meaning of the phrase “serious bodily injury” (now “serious personal injury”) can be found by reference to cases construing G.S. 14-32 (assault with a deadly weapon with intent to kill inflicting serious injury) and by viewing similar cases from other jurisdictions. State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

“Serious bodily injury” (now “serious personal injury”) is not the equivalent of “by force and against her will.” State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

Connection with Sexual Acts. —

The element of infliction of serious personal injury upon the victim or another person in the crimes of first-degree sexual offense and first-degree rape is sufficiently connected in time to the sexual acts when there is a series of incidents forming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury. Such incidents include injury inflicted on the victim to overcome resistance or to obtain submission, injury inflicted upon the victim or another in an attempt to commit the crimes or in furtherance of the crimes of rape or sexual offense, or injury inflicted upon the victim or another for the purpose of concealing the crimes or to aid in the assailant’s escape. State v. Blackstock, 314 N.C. 232 , 333 S.E.2d 245, 1985 N.C. LEXIS 1784 (1985).

Continuous Transaction. —

In a rape case where both rapes and the assault that inflicted serious injury occurred within a one-half hour period, the injury was one in a series of incidents in the same criminal episode, forming one continuous transaction between the rapes and its infliction. State v. Johnson, 320 N.C. 746 , 360 S.E.2d 676, 1987 N.C. LEXIS 2402 (1987).

Injuries to Third Party. —

State could properly rely on injuries suffered by an attempted rape victim’s daughter in elevating the attempted rape to attempted first degree rape, as the jury could have reasonably inferred that defendant attacked the daughter to aid his escape and that the attempted rape of the mother and the attack on the daughter were part of one continuous transaction. State v. Rogers, 153 N.C. App. 203, 569 S.E.2d 657, 2002 N.C. App. LEXIS 1126 (2002).

Mental Injury May Constitute Serious Personal Injury. —

Proof of the element of infliction of “serious personal injury” as required by subdivision (2)b of this section and G.S. 14-27.4(2)b may be met by the showing of mental injury as well as bodily injury. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

While serious injury can be used to support a first-degree rape conviction, this element is not required for a conviction of second-degree rape. Mental injuries associated with the crime are sufficient to make a crime first degree rape, but they must be associated with the rape, and the State must prove that the defendant caused the harm, that it extended for some appreciable period of time beyond the incidents surrounding the crime itself, and that the harm was more than the “res gestae” results present in every forcible rape. State v. Finney, 358 N.C. 79 , 591 S.E.2d 863, 2004 N.C. LEXIS 10 (2004).

It was not plain error not to instruct a jury, in a first-degree rape prosecution, not to rely on the same evidence to find both that the victim suffered ongoing emotional harm and the aggravating factor of the victim’s advanced age because (1) testimony establishing the victim’s lingering negative emotional consequences, used to show the element that the victim suffered a serious personal injury, was not specifically related to the victim’s age, and, (2) since all the evidence concerned the victim’s mental state after the rape, none of the evidence was relevant to whether the victim was more vulnerable to the crime. State v. Saunders, 239 N.C. App. 434, 768 S.E.2d 340, 2015 N.C. App. LEXIS 79 (2015).

But Must Be Greater Than That Present in Every Rape. —

The legislature intended that ordinarily the mental injury inflicted must be more than the res gestae results present in every forcible rape and sexual offense. In order to support a jury finding of serious personal injury because of injury to the mind or nervous system, the State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

In order to prove a serious personal injury based on mental or emotional harm there is no requirement that the mental injury arise from an action not ordinarily present in a forcible rape; what is required is that the mental injury extend for some appreciable time beyond the incidents surrounding the rape and that it is a mental injury beyond that normally experienced in every forcible rape. State v. Baker, 336 N.C. 58 , 441 S.E.2d 551, 1994 N.C. LEXIS 169 (1994).

In order for a mental injury to constitute “serious personal injury,” the mental injury must be more than the res gestae results present in every forcible rape and sexual offense; if a mental injury extends for some appreciable time, it is a mental injury beyond that normally experienced in every forcible rape. State v. Easterling, 119 N.C. App. 22, 457 S.E.2d 913, 1995 N.C. App. LEXIS 397 (1995).

Where defendant argued that the jury was improperly not instructed that, in order to support a conviction for first-degree rape, the alleged mental injury had to be more than or different from the injury usually associated with forcible rape, the argument failed; the jury was properly instructed that serious mental injury could be shown if the injury lasted for an appreciable period of time beyond the crime, as a mental injury that extended for some period of time was a mental injury beyond that normally experienced in every forcible rape. State v. Finney, 157 N.C. App. 267, 581 S.E.2d 764, 2003 N.C. App. LEXIS 543 (2003), rev'd, 358 N.C. 79 , 591 S.E.2d 863, 2004 N.C. LEXIS 10 (2004).

Question Must Be Decided on Facts of Case. —

Obviously, the question of whether there was such mental injury as to result in “serious personal injury” must be decided upon the facts of each case. It is impossible to enunciate a “bright line” rule as to when the acts of an accused cause mental upset which could support a finding of “serious personal injury.” State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

In determining whether “serious personal injury” has been inflicted as the phrase is used in the definitions of first-degree rape and first-degree sexual offense, the court must consider the particular facts of each case. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Sufficiency of Evidence. —

The evidence in a first-degree rape prosecution was sufficient to support a finding that the victim suffered a serious bodily injury where the victim suffered a hard blow to her upper jaw that left her stunned and dazed and knocked five teeth out of alignment, breaking the root of one tooth, where the teeth had to be deadened, forced back into line and secured with a metal brace, and where expert medical testimony predicted that the teeth would die and that root canals or actual extraction would be necessary. State v. Roberts, 293 N.C. 1 , 235 S.E.2d 203, 1977 N.C. LEXIS 852 (1977).

The evidence supported the serious injury element under this section where it showed that defendant repeatedly struck victim in the face immediately before he forced her to have sexual intercourse with him. State v. Locklear, 320 N.C. 754 , 360 S.E.2d 682, 1987 N.C. LEXIS 2406 (1987).

In trial on charges of first-degree rape and first-degree sexual offense, evidence supported the jury’s verdict of guilty on the basis that the victim suffered serious personal injury in the form of both bodily and mental injury, where the victim testified that in addition to the physical pain she experienced during and immediately after the rape and sodomy, she had continued to experience appetite loss, severe headaches, nightmares, sleep difficulty, difficulty in urination, and difficulty in bowel movements. State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645, 1990 N.C. App. LEXIS 1211 (1990).

The mental injuries at issue extended for some appreciable time beyond the incidents surrounding the crime itself where the victim experienced weight loss for ten months after the rape; 12 months after the rape, she was still experiencing depression, was unable to sleep, and did not feel comfortable interacting with the public; the victim had quit work, moved from her home, and sought counseling; and after the rape, the victim was unable to carry out her role as a mother and had to give up her child to the child’s grandmother for care for nine months. State v. Baker, 336 N.C. 58 , 441 S.E.2d 551, 1994 N.C. LEXIS 169 (1994).

Testimony of victim that she moved out of her home because she was “scared to go back” home, was not sufficient evidence to support the conclusion that the victim sustained a “serious” personal injury. State v. Lilly, 117 N.C. App. 192, 450 S.E.2d 546, 1994 N.C. App. LEXIS 1212 (1994), aff'd, 342 N.C. 409 , 464 S.E.2d 42, 1995 N.C. LEXIS 670 (1995).

State sufficiently proved the “serious personal injury” element of attempted first degree rape by evidence that the attempted rape victim suffered a broken nose, a concussion, bruises, and abrasions, and that her daughter suffered a cracked cheekbone and a broken nose and jaw. State v. Rogers, 153 N.C. App. 203, 569 S.E.2d 657, 2002 N.C. App. LEXIS 1126 (2002).

IX.Parties to Crime

Juvenile who was under the age of 12 at the time of the offense could not be found guilty of first-degree rape under subsection (a)(1) of this section for engaging in vaginal intercourse with six-year-old victim where the record contained no evidence of the age of his accomplice. State v. Drummond, 81 N.C. App. 518, 344 S.E.2d 328, 1986 N.C. App. LEXIS 2322 (1986).

Aider and Abettor Defined. —

An aider or abettor of first-degree rape is a person who is actually or constructively present at the scene of the crime and who aids, advises, counsels, instigates or encourages another to commit the offense. Even though not actually present during the commission of the crime, a person may be an aider or abettor if he shares the criminal intent of the perpetrator and if, during the commission of the crime, he is in a position to render any necessary aid to the perpetrator. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Knowledge of Aider and Abettor’s Threats. —

For defendant to be convicted of first-degree rape based in part on the actions of codefendant, it is necessary to show only that the two share a common unlawful purpose, i.e., that the two aid and abet one another in the commission of the crime; it is not necessary for each to have full knowledge of all acts committed by the other. Thus, where the trial court fully and adequately instructed on the elements of aiding and abetting, the court did not err in failing to instruct that the defendant must be found to have known of codefendant’s threats which induced consent. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Aiders and Abettors Are Guilty of Rape. —

Two or more persons may be guilty of the single crime of rape by being present, aiding and abetting in its commission. One holding the husband of prosecutrix while another is perpetrating the crime of rape is guilty as a principal in the offense. State v. Jordan, 110 N.C. 491 , 14 S.E. 752, 1892 N.C. LEXIS 91 (1892).

A man and a woman are both guilty of raping a female child where both caused the child to become drunk and the man had intercourse with the child while being held by the woman. State v. Hairston, 121 N.C. 579 , 28 S.E. 492, 1897 N.C. LEXIS 284 (1897).

One who is present, aiding and abetting, in a rape actually perpetrated by another, is equally guilty with the actual perpetrator of the crime. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Martin, 17 N.C. App. 317, 194 S.E.2d 60, 1973 N.C. App. LEXIS 1345 , cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 951 (1973).

The presence of defendant’s nephews inside and outside the truck while defendant engaged in sexual acts with the victim could reasonably have been regarded as encouragement to defendant and constituted sufficient evidence that they and defendant shared the “community of unlawful purpose” necessary for aiding and abetting. State v. Penland, 343 N.C. 634 , 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Defendant/female, as an aider and abettor, was equally as guilty of rape against 11-year old victim as the actual male perpetrator. State v. Owen, 133 N.C. App. 543, 516 S.E.2d 159, 1999 N.C. App. LEXIS 620 (1999).

Thus, a woman may be convicted of rape. State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Martin, 17 N.C. App. 317, 194 S.E.2d 60, 1973 N.C. App. LEXIS 1345 , cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 951 (1973).

A woman, who is physically incapable of committing rape upon another woman, may be convicted of rape where she aids and abets a male assailant in the rape of another woman. State v. Martin, 17 N.C. App. 317, 194 S.E.2d 60, 1973 N.C. App. LEXIS 1345 , cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 951 (1973).

And a husband may be guilty of the rape of his wife. (But see G.S. 14-27.8 ). State v. Overman, 269 N.C. 453 , 153 S.E.2d 44, 1967 N.C. LEXIS 1092 (1967); State v. Martin, 17 N.C. App. 317, 194 S.E.2d 60, 1973 N.C. App. LEXIS 1345 , cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 951 (1973).

Sufficiency of Evidence of Aiding and Abetting. —

Where the testimony of each defendant tended to show that he was close by when the other was having intercourse with the victim, either sitting in the front seat of the car or leaning against the outside of the car, and where defendants’ testimony and the relationship of each defendant to the other as cousins were consistent with a jury determination that each defendant knew and intended that the other would regard his presence as an encouragement and protection, the defendants’ evidence did not tend to negate the element of aiding and abetting. State v. Amerson, 316 N.C. 161 , 340 S.E.2d 98, 1986 N.C. LEXIS 1917 (1986).

X.Intent

Intent to commit the crime of rape is inferred from the commission of the act. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Perverse Intent. —

Where the evidence was sufficiently clear that defendant violently sexually assaulted and murdered four year old as a part of the same violent transaction, it was not too speculative for the jury to infer that defendant committed these acts against the child with an intent to satisfy his perverse desires. State v. Kandies, 342 N.C. 419 , 467 S.E.2d 67, 1996 N.C. LEXIS 16 , cert. denied, 519 U.S. 894, 117 S. Ct. 237, 136 L. Ed. 2d 167, 1996 U.S. LEXIS 5859 (1996).

To support a conviction for breaking or entering and attempted first-degree rape, the State’s evidence must show that defendant broke or entered the victim’s home with the intent to commit the felony of rape. In addition, the State’s evidence must show that defendant had the intent to commit the crime of rape as defined by this section and that defendant committed an act which went beyond mere preparation, but fell short of the actual completion of the offense. State v. Parks, 78 N.C. App. 778, 336 S.E.2d 424 (1985).

State Must Show Substantial Evidence of Intent. —

Although to prove the charge of attempted first-degree rape the State is not required to show an actual physical attempt to have sexual intercourse with the victim, there must be substantial evidence that defendant had the intent to gratify his passion upon the victim notwithstanding any resistance on her part. State v. Nicholson, 99 N.C. App. 143, 392 S.E.2d 748, 1990 N.C. App. LEXIS 468 (1990) (holding evidence insufficient to convict defendant of attempted first-degree rape) .

Testimony as to Statements Made by Defendant to Victim. —

Testimony by rape victim that defendant acknowledged prior sexual offenses and that he stated he enjoyed degrading white women was admissible evidence relevant to show both defendant’s motive for assaulting prosecutrix and possession of criminal intent before the fact. State v. Searles, 304 N.C. 149 , 282 S.E.2d 430, 1981 N.C. LEXIS 1329 (1981).

For discussion of sufficiency of evidence to justify an inference of intent to rape, see State v. Rushing, 61 N.C. App. 62, 300 S.E.2d 445, 1983 N.C. App. LEXIS 2575 , aff'd, 308 N.C. 804 , 303 S.E.2d 822, 1983 N.C. LEXIS 1305 (1983).

XI.Penetration

The legislature did not intend to alter the penetration required for the offense of rape when it enacted this section. State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

Vaginal Intercourse Defined. —

An essential element of rape under subdivision (a)(1) is vaginal intercourse, which is defined as the slightest penetration of the female sex organ by the male sex organ. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

Slightest Penetration Is Sufficient to Withstand a Motion to Dismiss. —

For a charge of first-degree rape to withstand a motion to dismiss for insufficient evidence, there must be evidence, among other things, that defendant engaged in “vaginal intercourse” with the victim, however, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute vaginal intercourse within the meaning of the statute. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

Testimony by child prosecutrix that defendant inserted his penis at least partially into her vagina was sufficient to show that defendant engaged in vaginal intercourse with prosecutrix, and discrepancies between the victim’s testimony and the physical evidence, were for the jury to resolve and did not warrant dismissal of the discharge. State v. Weaver, 117 N.C. App. 434, 451 S.E.2d 15, 1994 N.C. App. LEXIS 1264 (1994).

Penetration Without Emission Sufficient. —

It shall not be necessary upon the trial of any indictment for the offense of rape to prove the actual emission of seed in order to constitute the offense, but the offense shall be completed upon proof of penetration only. State v. Monds, 130 N.C. 697 , 41 S.E. 789, 1902 N.C. LEXIS 144 (1902).

The slightest penetration of the sexual organ of the female by the sexual organ of the male amounts to carnal knowledge in a legal sense. State v. Sneeden, 274 N.C. 498 , 164 S.E.2d 190, 1968 N.C. LEXIS 806 (1968).

As vaginal intercourse requires only the slightest penetration, the absence of sperm and other physical symptoms such as swelling or abrasions does not support a finding of attempted rape. State v. Ashley, 54 N.C. App. 386, 283 S.E.2d 805, 1981 N.C. App. LEXIS 2863 (1981).

Evidence of the slightest penetration of the female sex organ by the male sex organ is sufficient for vaginal intercourse and the emission of semen need not be shown to prove the offense of rape. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Lack of Erection. —

While penetration is best achieved when there is an erection, by no means can penetration to the degree necessary to satisfy the penetration element of rape be excluded because there is no erection. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Scope of Medical Expert’s Testimony. —

A medical expert may not testify that the defendant raped the prosecuting witness; however, a physician who is properly qualified as an expert may offer an opinion as to whether the victim in a rape prosecution had been penetrated and whether internal injuries had been caused thereby. State v. Galloway, 304 N.C. 485 , 284 S.E.2d 509, 1981 N.C. LEXIS 1369 (1981).

Testimony that an examination revealed evidence of traumatic and forcible penetration consistent with an alleged rape is a proper expression for an expert witness to establish whether the victim had been penetrated by force. State v. Galloway, 304 N.C. 485 , 284 S.E.2d 509, 1981 N.C. LEXIS 1369 (1981).

Pregnancy as Tending to Show Penetration. —

Testimony of the prosecutrix concerning her pregnancy tended to show penetration, one of the elements of rape. Defendant’s plea of not guilty placed upon the State the burden of proving beyond a reasonable doubt all the essential elements of the offense charged. Hence, evidence tending to prove penetration, an essential element of the offense, was properly admitted. State v. Cross, 284 N.C. 174 , 200 S.E.2d 27, 1973 N.C. LEXIS 815 (1973).

Evidence of Penetration Held Sufficient. —

Testimony by the prosecutrix in a rape case that defendant had “sex” and “intercourse” with her was sufficient to support a finding by the jury that there was penetration. State v. Ashford, 301 N.C. 512 , 272 S.E.2d 126, 1980 N.C. LEXIS 1178 (1980).

Child’s testimony that defendant had “put his private parts in my private parts,” which was further clarified on direct examination, was sufficient to support the charge of first-degree rape. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544 , 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

The State introduced sufficient evidence of penetration to permit a rational trier of fact to find beyond a reasonable doubt that the defendant committed the offense of incest and rape, where the child victim testified at trial that her father had penetrated her, even though there were discrepancies in her extrajudicial statements to others and in her trial testimony with regard to the manner, extent and frequency of the penetration. State v. Bruce, 315 N.C. 273 , 337 S.E.2d 510, 1985 N.C. LEXIS 1996 (1985).

Child’s testimony, coupled with medical evidence, held sufficient evidence of a penetration to support a first-degree rape conviction. State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Child’s testimony and medical evidence held sufficient evidence of penetration to support a first-degree rape conviction. State v. Moore, 103 N.C. App. 87, 404 S.E.2d 695, 1991 N.C. App. LEXIS 711 (1991).

After threatening a victim with a knife and blinding her by taping her eyes shut, defendant penetrated the victim vaginally from the front, then withdrawing, turning her on her side and re-penetrating her vaginally; here, there was sufficient evidence to show that defendant committed two separate acts of first degree rape such that defendant’s motion to dismiss the second count of first degree rape and defendant’s motion to dismiss the second degree kidnapping charge were properly denied. State v. Key, 180 N.C. App. 286, 636 S.E.2d 816, 2006 N.C. App. LEXIS 2291 (2006).

In a prosecution for first-degree statutory rape, under G.S. 14-27.2(a)(1), and second-degree forcible rape, under G.S. 14-27.3(a)(1), sufficient evidence was submitted of defendant’s penetration of the victim, when the victim testified that defendant placed his penis between her legs, continued pushing, “it hurt,” and she found blood on her underwear, and a physician testified that, although there was no indication of complete penetration, there was bruising of the inner lip of the labia minora near the hymen, so the denial of defendant’s motion to dismiss for lack of sufficient evidence of penetration was proper, as complete penetration was not required. State v. Bell, 159 N.C. App. 151, 584 S.E.2d 298, 2003 N.C. App. LEXIS 1432 (2003), cert. denied, 358 N.C. 733 , 601 S.E.2d 863, 2004 N.C. LEXIS 1013 (2004).

Evidence of Penetration Held Insufficient. —

There was insufficient evidence that defendant engaged in vaginal intercourse with a child victim before the victim turned 13 to send a statutory rape charge under G.S. 14-27.2(a)(1) to the jury as the victim testified that the first time defendant had sex with the victim it was anal intercourse, and that although defendant began touching the victim earlier, the victim was 13 years old when defendant started having sexual intercourse with the victim. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Instruction on Attempted Rape Not Required. —

Victim’s testimony that defendant tried to make the victim have sex with defendant and the lack of medical evidence of penetration did not create a conflict that would necessitate an instruction on first-degree attempted rape under G.S. 14-27.2(a)(1) since: (1) an expert witness testimony as to a lack of trauma did not indicate lack of penetration; (2) there was evidence that defendant had inserted defendant’s penis into the victim’s vagina, which was corroborated; (3) a witness testified that defendant told the witness that defendant had had sex with the victim; and (4) the victim’s testimony was consistent with penetration. State v. Thomas, 187 N.C. App. 140, 651 S.E.2d 924, 2007 N.C. App. LEXIS 2309 (2007).

Instruction Upheld. —

The trial court did not err by instructing the jury that “vaginal intercourse” is defined to be penetration, however slight, of female sex organ by the male sex organ, rather than as defendant requested: “The slightest penetration of the female vagina by the male sex organ.” State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

Although the victim’s own testimony was perhaps scientifically inaccurate and somewhat ambiguous regarding the act of penetration, it was corroborated by the testimony of numerous other witnesses; therefore, the trial court did not err in denying the defendant’s motion to dismiss the charge of first-degree rape. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

XII.Character of Victim

Editor’s Note. —

All of the annotations below are to cases decided prior to the enactment of the rape shield law, G.S. 8C-1 , Rule 412.

General Character Bears on Question of Consent. —

The general character of the prosecutrix in a rape case may be shown as bearing upon the question of consent. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977).

And May Be Shown by Evidence of Reputation. —

The most generally permissible method of proving character in a prosecution for rape is by evidence of the witness’ reputation. State v. Cole, 20 N.C. App. 137, 201 S.E.2d 100, 1973 N.C. App. LEXIS 1492 (1973).

The character of the alleged victim in a rape prosecution may be shown by evidence of her reputation as bearing upon the question of consent. State v. Cole, 20 N.C. App. 137, 201 S.E.2d 100, 1973 N.C. App. LEXIS 1492 (1973).

Testimony of Stranger Investigating Reputation. —

A stranger who has investigated a person’s reputation in the appropriate community may testify to the result of his investigation. State v. Cole, 20 N.C. App. 137, 201 S.E.2d 100, 1973 N.C. App. LEXIS 1492 (1973).

Unchastity Bears on Credibility and Consent. —

In the case of a prosecuting witness over the age of 12 years the general character of the prosecuting witness for unchastity may be shown for the purpose of attacking the credibility of her testimony, and has bearing upon the likelihood of her consent. State v. Cox, 280 N.C. 689 , 187 S.E.2d 1, 1972 N.C. LEXIS 1292 (1972).

When a defendant has been charged with rape or with assault with intent to commit rape, evidence of the prosecutrix’s reputation for unchastity is admissible both to attack her credibility as a witness and to show the likelihood of consent. State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978).

In a prosecution for rape, the general character of the prosecutrix for unchastity may be shown both to attack the credibility of her testimony and as bearing upon the likelihood of consent. State v. Grundler, 251 N.C. 177 , 111 S.E.2d 1, 1959 N.C. LEXIS 553 (1959), cert. denied, 362 U.S. 917, 80 S. Ct. 670, 4 L. Ed. 2d 738, 1960 U.S. LEXIS 1468 (1960).

Specific Acts of Unchastity with Persons Other Than Defendant. —

Testimony of specific acts of unchastity with person other than defendant is properly excluded. State v. Grundler, 251 N.C. 177 , 111 S.E.2d 1, 1959 N.C. LEXIS 553 (1959), cert. denied, 362 U.S. 917, 80 S. Ct. 670, 4 L. Ed. 2d 738, 1960 U.S. LEXIS 1468 (1960).

Specific acts of unchastity with persons other than defendant are inadmissible in rape cases. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977); State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978).

A witness called by the defendant cannot be asked about specific acts of misconduct by prosecutrix. This witness must confine himself to testimony concerning general reputation for chastity. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977).

The prosecutrix may be cross-examined concerning specific acts of unchastity for the sole purpose of impeaching credibility, but the defendant is bound by her answer. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977).

An accused in a prosecution for rape has a right to impeach the State’s witness by competent evidence of bad reputation of the witness. State v. Cole, 20 N.C. App. 137, 201 S.E.2d 100, 1973 N.C. App. LEXIS 1492 (1973).

Evidence of Victim’s Character Improperly Excluded. —

Where the evidence of the victim’s character was offered in a rape case according to the standard permissible method of proving character, since the witness’s testimony was directed to the “general reputation and character” of the victim and not to his personal opinion, it was error for the court not to allow the jury to consider the witness’s testimony on the issue of consent. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

Charge Limiting Consideration of Character. —

There was no prejudice to the defendant in the technically erroneous charge in a rape case limiting consideration of the victim’s character to the issue of credibility and not allowing the jury to consider character on the issue of consent where the credibility of the victim’s testimony that she did not consent was the key to the State’s case, and there was no real distinction between the issue of the victim’s credibility and the issue of her consent. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

XIII.Evidence

Evidence aliunde defendant’s admissions held sufficient to satisfy the requirements of the corpus delicti rule, and when considered with defendant’s confession, held sufficient to survive defendant’s various motions to dismiss rape charge against him. State v. Sloan, 316 N.C. 714 , 343 S.E.2d 527, 1986 N.C. LEXIS 2409 (1986).

The unsupported testimony of the prosecutrix in a prosecution for rape is sufficient to require submission of the case to the jury. State v. Bailey, 36 N.C. App. 728, 245 S.E.2d 97, 1978 N.C. App. LEXIS 2616 (1978).

Not Limited to Non-Fatal Injuries. —

The statutes governing first-degree rape and first-degree sexual offense do not limit the injuries underlying the charge to those not resulting in death. State v. Richmond, 347 N.C. 412 , 495 S.E.2d 677, 1998 N.C. LEXIS 13 , cert. denied, 525 U.S. 843, 119 S. Ct. 110, 142 L. Ed. 2d 88, 1998 U.S. LEXIS 5225 (1998).

Testimony of Witnesses to Victim’s Physical Condition. —

Evidence of independent witnesses as to the physical condition of the prosecutrix on the night the intercourse occurred corroborates her testimony. State v. Tuttle, 28 N.C. App. 198, 220 S.E.2d 630, 1975 N.C. App. LEXIS 1712 (1975), cert. denied, 291 N.C. 716 , 232 S.E.2d 207, 1977 N.C. LEXIS 1268 (1977).

Evidence of Defendant’s Prior Sexual Misconduct. —

Trial court’s allowance of testimony by the eight-year-old victim regarding prior acts of sexual misconduct was not error; testimony was admissible to establish a common plan or scheme on the part of defendant to sexually molest his niece. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Defendant’s convictions for first-degree rape of a child under the age of 13 were affirmed because evidence of defendant’s prior sexual relations with his older half-daughter from about nine years earlier was properly admitted under G.S. 8C-1-404(b) to show a common scheme or plan; further, DNA evidence showing that defendant was the father of the victim’s child, and thus must have had sexual intercourse with her, was admissible to show a common scheme or plan under Rule 404(b). State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Evidence of Victim’s Past Sexual Behavior. —

Defendant’s request to cross-examine the prosecuting witness in rape trial, based upon his speculation that she was motivated to accuse him of rape because she was pregnant by her boyfriend, did not fall under an exception in G.S. 8C-1 , Rule 412; therefore the trial court was correct in denying this line of questioning during cross-examination of the prosecuting witness. State v. Alverson, 91 N.C. App. 577, 372 S.E.2d 729, 1988 N.C. App. LEXIS 899 (1988).

Testimony as to Victim’s Credibility Inadmissible. —

Statements by an expert on child sexual abuse that she “had not picked up on anything” to suggest that someone had told the alleged victim what to say, and that she had no concerns that the alleged victim had been “coached,” bore directly on the alleged victim’s credibility and were inadmissible. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, 1993 N.C. App. LEXIS 97 (1993), writ denied, 333 N.C. 256 , 426 S.E.2d 701, 1993 N.C. LEXIS 44 (1993), aff'd, 336 N.C. 748 , 446 S.E.2d 1, 1994 N.C. LEXIS 407 (1994).

The trial court erred by allowing the teacher of an alleged victim of sexual abuse to testify on direct examination regarding specific instances of the alleged victim’s conduct which tended to establish her truthfulness. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, 1993 N.C. App. LEXIS 97 (1993), writ denied, 333 N.C. 256 , 426 S.E.2d 701, 1993 N.C. LEXIS 44 (1993), aff'd, 336 N.C. 748 , 446 S.E.2d 1, 1994 N.C. LEXIS 407 (1994).

Defendant’s convictions of first-degree statutory rape of a child under the age of thirteen were reversed because it was plain error to admit expert testimony that a lack of physical findings was not inconsistent with sexual abuse and that the victim fell in that category, as, (1) absent physical evidence, the testimony’s only bases were the victim’s history and statements to a social worker, which did not support the opinion that the child was abused, (2) the case turned on the credibility of the victim, who provided the only direct evidence against defendant, (3) the error seriously affected the fairness, integrity, and public reputation of judicial proceedings, since the victim’s recitations of defendant’s acts were not entirely consistent, and, (4) given the expert’s unquestioned stature in the field and the expert’s opinion that, even absent physical symptoms, the victim was sexually abused, the testimony stilled any doubts the jury might have had about the victim’s credibility or defendant’s culpability. State v. Towe, 366 N.C. 56 , 732 S.E.2d 564, 2012 N.C. LEXIS 420 (2012).

Victim’s Testimony Consistent with Physical Evidence Held Substantial. —

Where at trial, the victim, age nine, testified defendant, age 31, laid her on the ground, took off her shorts and panties and “put his thing in mine,” and where doctor testified there was bruising on the sides of the victim’s labia and a small laceration in the area of the fourchette, and in the doctor’s expert opinion, this physical evidence was consistent with a penis having been forced through the victim’s labia, there was substantial evidence that defendant engaged in vaginal intercourse with the victim. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

Evidence Held Sufficient to Support the Serious Injury Element. —

Where the defendant choked the victim into unconsciousness three times, her jeans were tied around her neck and used to drag her nude body through a wooded area where she was left, she had a deep red ring around her throat and bruises and abrasions over nearly her entire body, the victim testified that the defendant had tried to put her eyes out with his thumbs, the evidence, taken in the light most favorable to the State, supported the serious injury element of first-degree rape and first-degree sexual offense. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Victim’s Out-of-Court Statements. —

In defendant’s trial for first-degree rape of a five-year-old, the victim’s out-of-court statements to social worker contained sufficient guarantees of trustworthiness for admission under G.S. 8C-1 , Rule 803(24). State v. Deanes, 323 N.C. 508 , 374 S.E.2d 249, 1988 N.C. LEXIS 697 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009, 1989 U.S. LEXIS 2711 (1989) (applying) State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Statements Made for Purpose of Diagnosis and Treatment. —

In a second-degree rape case, where doctor testified he asked the victim if “anything” was put inside her and the victim responded, “Yes”, the victim’s statements to the doctor were made for the purpose of diagnosis and treatment and were reasonably pertinent to the doctor’s diagnosis and treatment; therefore, the question and answer were permitted as an exception to the general hearsay rule. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

Testimony Establishing Plan or Scheme. —

The challenged testimony of the victim, her attending physician, and the investigating police officer tended to establish a plan or scheme by defendant to sexually abuse the victim when the victim’s mother went to work; furthermore, as the alleged prior incidents occurred within twelve months prior to the incident for which defendant was charged, proof of the incidents was not so remote in time as to outweigh its probative force; therefore, the trial court did not err in allowing evidence of these prior incidents. State v. Summers, 92 N.C. App. 453, 374 S.E.2d 631, 1988 N.C. App. LEXIS 1066 (1988).

Expert Testimony About Behaviors Observed in Children Who Have Experienced Sexual Abuse. —

Trial court did not abuse its discretion by allowing an expert witness who was called by the State during defendant’s trial on charges of attempted first-degree rape and taking indecent liberties with a minor to testify about common characteristics and behaviors observed in children who experienced sexual abuse, even though the witness did not interview the victim or talk to her parents. State v. McCall, 162 N.C. App. 64, 589 S.E.2d 896, 2004 N.C. App. LEXIS 12 (2004).

Opinion Testimony as to Age of Defendant. —

Lay witnesses with an adequate opportunity to observe and who have in fact observed may state their opinion regarding the age of a defendant in a criminal case when the fact that he was at the time in question over a certain age is one of the essential elements to be proved by the State. State v. Gray, 292 N.C. 270 , 233 S.E.2d 905, 1977 N.C. LEXIS 1090 (1977).

Failure to Submit Proof of Age. —

Noting the difficulty of determining the age of a juvenile by mere observation, particularly when the age of the juvenile at the time of the alleged offense, not at the time of trial, is the crucial determination, the court held that the charge of first-degree rape should have been dismissed at the close of the evidence because the State failed to offer any direct evidence of respondent’s age. In re Jones, 135 N.C. App. 400, 520 S.E.2d 787, 1999 N.C. App. LEXIS 1158 (1999).

Leading Questions to Young Victim. —

In trial charging defendant with rape of his 9-year-old sister, the trial court did not abuse its discretion by allowing leading questions to be asked of the prosecuting witness until she gave the desired answer that vaginal penetration had occurred. State v. Wilson, 322 N.C. 91 , 366 S.E.2d 701, 1988 N.C. LEXIS 133 (1988).

Social Worker Had Become Agent of State. —

In case involving crimes against child victim, where social worker went beyond merely fulfilling her role as the victim’s social worker and began working with the sheriff’s department on the case prior to interviewing defendant, social worker’s role changed and became essentially like that of an agent of the State; accordingly, because the social worker did not advise defendant of her Miranda rights, the trial court erred in denying defendant’s motion to suppress statements made during her interview with the social worker. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, 1993 N.C. App. LEXIS 98 , cert. denied, 333 N.C. 465 , 427 S.E.2d 626, 1993 N.C. LEXIS 123 (1993).

Date of Offense. —

Where the jury was instructed that the State would be held to prove that offense involving a child victim occurred on or about a specified date, and defendant was given the benefit of this instruction and an opportunity to present alibi evidence for that date, which evidence the jury chose to disbelieve, the State would not be required to furnish conclusive proof that the offense occurred on that date. To force the State to admit of a date certain in order to accommodate defendant’s alibi evidence, and then by convoluted reasoning to suggest that failure to prove that the offense occurred on that specific date was fatal to the State’s case, would clearly frustrate the State’s efforts to convict offenders on sex related offenses involving young children. State v. Wood, 311 N.C. 739 , 319 S.E.2d 247, 1984 N.C. LEXIS 1755 (1984).

Use of Term “Rape” in Testimony. —

Victim’s use of the term “rape” in her testimony was clearly a convenient shorthand term, amply defined by the balance of her testimony, and did not constitute an opinion on a question of law. State v. Goss, 293 N.C. 147 , 235 S.E.2d 844, 1977 N.C. LEXIS 865 (1977).

Testimony by the prosecutrix that defendant raped her did not invade the province of the jury since (1) the court sustained an objection to the testimony and (2) the testimony was competent as a shorthand statement of fact. State v. See, 301 N.C. 388 , 271 S.E.2d 282, 1980 N.C. LEXIS 1173 (1980).

Testimony as to Odors and Voices of Assailants. —

There was no merit to defendant’s contention in a rape case that the trial court erroneously allowed the prosecutrix to identify the defendant by body odor and voice since prosecutrix never identified defendant but simply testified that she knew four men were involved because her assailants had four different body odors and she heard four different voices, and defendant admitted he was present with three other men. State v. Hammonds, 301 N.C. 713 , 272 S.E.2d 856, 1981 N.C. LEXIS 1023 (1981).

Improper Advances Made Four Years Before. —

In a prosecution for rape of a female child under the age of 12 years, testimony of the prosecuting witness that the defendant had made improper advances to her approximately four years prior to the offense charged is competent evidence in corroboration of the offense charged. Gasque v. State, 271 N.C. 323 , 156 S.E.2d 740, 1967 N.C. LEXIS 1193 (1967), cert. denied, 390 U.S. 1030, 88 S. Ct. 1423, 20 L. Ed. 2d 288, 1968 U.S. LEXIS 1945 (1968).

Testimony as to Assault on Others at Time of Rape. —

Testimony as to the events that occurred in a home from the time of defendant’s violent entry until the consummation of rape was competent and relevant as part of the res gestae, including testimony that persons other than the rape victim had been assaulted by the defendant. State v. Burleson, 280 N.C. 112 , 184 S.E.2d 869, 1971 N.C. LEXIS 1099 (1971).

Assaults on Other Women on Same Date. —

In a prosecution for first-degree rape, evidence that defendant committed assaults on two other women on the same date as the rape was competent to show defendant’s state of mind and his common scheme and design to apply physical force in the commission of crimes of violence; furthermore, the two assaults were sufficiently close in time to the alleged rape that the incidents presented circumstances, not too remote in time to have probative value, which tended to aid the jury in understanding the conduct and motives of defendant. State v. Rick, 51 N.C. App. 383, 276 S.E.2d 768, 1981 N.C. App. LEXIS 2230 , aff'd, 304 N.C. 356 , 283 S.E.2d 512, 1981 N.C. LEXIS 1348 (1981).

Photographs. —

Color photographs depicting the condition of the rape victim’s body when examined by the doctor were competent for the purpose of illustrating the doctor’s testimony. State v. Atkinson, 278 N.C. 168 , 179 S.E.2d 410, 1971 N.C. LEXIS 956 , rev'd, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971).

Letter Written by Defendant to Victim’s Mother. —

In prosecution for first-degree rape and intercourse by a substitute parent, the trial court did not commit prejudicial error in admitting into evidence, over objection, a letter which the defendant wrote to the victim’s mother, in which defendant promised not to “bother” victim again, despite defendant’s contention that what he had meant was that he would not discipline the victim anymore. State v. Moses, 316 N.C. 356 , 341 S.E.2d 551, 1986 N.C. LEXIS 2059 (1986).

In prosecution for first-degree rape under this section, court properly permitted testimony regarding a letter from defendant to victim’s mother, and the State did not violate G.S. 15A-903(a)(1) when it failed to produce this letter, since it was never in the State’s possession and defendant failed to show that the original was destroyed in bad faith, as required by G.S. 8C-1 , Rule 1004. State v. Jarrell, 133 N.C. App. 264, 515 S.E.2d 247, 1999 N.C. App. LEXIS 406 (1999).

Garments worn by the victim of a rape and murder showing the location of a wound upon the person of the deceased, or which otherwise corroborate the State’s theory of the case, are competent. State v. Atkinson, 278 N.C. 168 , 179 S.E.2d 410, 1971 N.C. LEXIS 956 , rev'd, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971).

When relevant, articles of clothing identified as worn by the victim at the time the crime was committed are always competent evidence. State v. Atkinson, 278 N.C. 168 , 179 S.E.2d 410, 1971 N.C. LEXIS 956 , rev'd, 403 U.S. 948, 91 S. Ct. 2292, 29 L. Ed. 2d 861 (1971).

Trial court properly admitted into evidence panties allegedly worn by defendant’s eight-year-old niece and the results of lab tests performed on the panties since there was no prejudice by admission of the evidence in question. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Pubic Hair. —

Where pubic hair found on the victim was “microscopically consistent” with defendant’s pubic hair and could have originated from the defendant, it is admissible although an expert could not positively identify the defendant from the hair comparison. State v. Pratt, 306 N.C. 673 , 295 S.E.2d 462, 1982 N.C. LEXIS 1556 (1982).

In a rape case, a hair belonging to someone other than the victim found in her pubic area tended to show that the person from whom the hair came could have engaged in sexual contact with the victim. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

Semen. —

The trial court did not err in allowing evidence that a medical examination disclosed the presence of semen in the victim’s vagina, although there was no laboratory proof that the semen came from the defendant, where the victim testified that defendant had a climax when he had intercourse with her, and further testified that she did not have intercourse with anyone else that day, and the semen samples were taken shortly after the event. There is no requirement that there be laboratory proof of the source of semen before it can be introduced into evidence. State v. Kinch, 314 N.C. 99 , 331 S.E.2d 665, 1985 N.C. LEXIS 1710 (1985).

Previous Convictions of Aiders and Abettors. —

In trial on charge of first degree rape, which was tried on the theory that defendant was the principal and two other men were aiders and abettors, evidence of the previous convictions of the other men was irrelevant under G.S. 8C-1 , Rule 401, and being irrelevant, was not admissible. Further, the admission of such evidence violated the defendant’s Sixth Amendment right to confront the witnesses against him with regard to this charge. State v. Brown, 319 N.C. 361 , 354 S.E.2d 225, 1987 N.C. LEXIS 1921 (1987).

Testimony Irrelevant. —

Trial judge did not err by not allowing defendant’s witnesses to testify that he had not molested their children and by not allowing several children to testify that he had not molested them since such testimony was totally irrelevant. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Evidence as to Weapon Admitted. —

Victim’s testimony regarding the shiny object in defendant’s hand, which the victim believed to be a knife, was relevant to the first-degree rape charge. State v. Lawrence, 191 N.C. App. 422, 663 S.E.2d 898, 2008 N.C. App. LEXIS 1509 (2008), aff'd, 363 N.C. 118 , 678 S.E.2d 658, 2009 N.C. LEXIS 231 (2009).

Evidence Held Sufficient to Support Dangerous Weapon Element. —

Where the victim reasonably believed that the defendant had an object which was a dangerous weapon that he would use, the trial court did not err in denying defendant’s motion to dismiss the first-degree rape charge on the grounds that there was no evidence to support a finding that a dangerous or deadly weapon was employed or displayed. State v. Mayse, 97 N.C. App. 559, 389 S.E.2d 585, 1990 N.C. App. LEXIS 222 (1990).

Evidence Held Sufficient to Support Force Element. —

The evidence reasonably supported the inference that the victim had vaginal intercourse with defendant by force and against her will where her body was severely beaten, and testimony indicated that she was alive during the beating. State v. Moseley, 338 N.C. 1 , 449 S.E.2d 412, 1994 N.C. LEXIS 653 (1994), cert. denied, 514 U.S. 1091, 115 S. Ct. 1815, 131 L. Ed. 2d 738, 1995 U.S. LEXIS 3025 (1995).

Evidence Held Sufficient to Support Separate Charges and Convictions. —

Evidence which showed two distinct acts of intercourse, both accomplished by force and over the repeated resistance of the victim, was sufficient to support separate charges and convictions of first degree rape charges. State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214, 1989 N.C. App. LEXIS 1027 (1989), cert. denied, dismissed, 327 N.C. 485 , 397 S.E.2d 227, 1990 N.C. LEXIS 851 (1990).

Defendant’s 11 convictions for first-degree rape of a child under the age of 13, in violation of G.S. 14-27.2(a)(1), were affirmed because the generic evidence in the form of the victim’s testimony as to the acts that occurred approximately twice a week over a 10-month period was sufficient to support the convictions; thus, defendant’s right to a unanimous verdict was not violated. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

There was sufficient evidence to survive defendant’s motion to dismiss all of the charges against him, which included first-degree sex offense with a child, G.S. 14-27.4(a)(1), attempted first-degree statutory rape G.S. 14-27.2 , and two separate counts of indecent liberties with a child, G.S. 14-202.1(a)(1), because the victims both recounted specific details about the sexually abusive conduct of defendant; a police officer, doctors, and other witnesses testified that the victims both told them about defendant’s sexually abusive conduct, and the State introduced as evidence the recorded interviews of the victims that were used by the medical team at the child abuse center to make their treatment recommendations. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145, 2010 N.C. App. LEXIS 640 (2010), cert. dismissed, 372 N.C. 708 , 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Evidence Held Insufficient to Support Separate Charges and Convictions. —

Victim’s ambiguous characterization of the number of times defendant inserted his penis into her vagina as “a couple” was insufficient to charge defendant with three counts of first degree rape. State v. Blow, 237 N.C. App. 158, 764 S.E.2d 230, 2014 N.C. App. LEXIS 1117 (2014), rev'd, 368 N.C. 348 , 776 S.E.2d 844, 2015 N.C. LEXIS 931 (2015).

Evidence Held Sufficient. —

Evidence aliunde defendant’s admissions held sufficient to satisfy the requirements of the corpus delicti rule, and when considered with defendant’s confession, held sufficient to survive defendant’s various motions to dismiss rape charge against him. State v. Sloan, 316 N.C. 714 , 343 S.E.2d 527, 1986 N.C. LEXIS 2409 (1986).

As the victim testified that defendant had vaginal intercourse with her when she was 12, and defendant’s testimony established that he was more than four years older than the victim, defendant’s motion to dismiss first degree rape charges was properly denied. State v. Carter, 198 N.C. App. 297, 679 S.E.2d 457, 2009 N.C. App. LEXIS 1174 (2009).

Evidence held sufficient to withstand a motion to dismiss charge of first degree rape of ten-year-old victim. State v. Rhodes, 321 N.C. 102 , 361 S.E.2d 578, 1987 N.C. LEXIS 2489 (1987).

Evidence held sufficient to support conviction for first-degree rape of five-year-old, despite victim’s inability to testify upon being adjudged incompetent as a witness. State v. Deanes, 323 N.C. 508 , 374 S.E.2d 249, 1988 N.C. LEXIS 697 (1988), cert. denied, 490 U.S. 1101, 109 S. Ct. 2455, 104 L. Ed. 2d 1009, 1989 U.S. LEXIS 2711 (1989).

Where the prosecuting witness testified that defendant removed her clothing, put her on top of him, and that she could feel something moving between her legs and defendant let her go only when her aunt drove into the driveway, the State met its burden of presenting substantial evidence on each element of the offense of attempted first degree rape. State v. Reynolds, 93 N.C. App. 552, 378 S.E.2d 557, 1989 N.C. App. LEXIS 249 (1989).

Evidence was sufficient to withstand defendant’s motion to dismiss where at trial child testified that defendant pulled down her pajamas and laid her on the floor and although child did not respond when asked to point to where her private parts were located, the transcript revealed that she knew where they were since she answered affirmatively when asked if private parts “were [where he] goes to the bathroom,” and doctor testified that the opening of the child’s vagina was approximately two centimeters in diameter and there was evidence of tearing, and subsequent healing, of the hymen ring. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419, 1989 N.C. App. LEXIS 814 (1989).

Victim’s testimony that defendant had sexual intercourse with her on the couch and later in the bedroom was sufficient to allow the jury to draw the reasonable inference that defendant had vaginal intercourse with the victim, and victim’s testimony that defendant threatened her with an open knife was sufficient to establish that defendant employed or displayed a dangerous or deadly weapon; therefore, trial court properly denied defendant’s motion to dismiss rape charges. State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214, 1989 N.C. App. LEXIS 1027 (1989), cert. denied, dismissed, 327 N.C. 485 , 397 S.E.2d 227, 1990 N.C. LEXIS 851 (1990).

Evidence is sufficient to show first-degree rape where the victim testified to many acts of vaginal intercourse by the defendants to which she did not consent, she recounted the threats by the defendants to hurt her with a butcher knife, which was found at the scene unless she cooperated, and the victim explained how the defendants held her arms and legs as each attempted vaginal intercourse and achieved some penetration. State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245, 1992 N.C. App. LEXIS 565 (1992).

There was sufficient evidence from which a rational trier of fact could find in the present case that the defendant engaged in vaginal intercourse with victim by force and against her will while either employing a dangerous weapon or inflicting serious personal injury upon her. State v. Worsley, 336 N.C. 268 , 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994).

Evidence that a murder victim was abducted from her apartment, that the defendant’s sperm was found in her vagina, and that intercourse occurred in the woods where her body was found supported the finding that the defendant had intercourse with the victim against her will, thus supporting his conviction for first-degree rape and felony-murder. State v. Trull, 349 N.C. 428 , 509 S.E.2d 178, 1998 N.C. LEXIS 852 (1998), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed. 2d 80, 1999 U.S. LEXIS 5255 (1999).

Evidence which included the testimony of victim, victim’s mother, a police detective, a social worker and a counselor, was sufficient to support the charges of first-degree rape under this section. State v. Jarrell, 133 N.C. App. 264, 515 S.E.2d 247, 1999 N.C. App. LEXIS 406 (1999).

Sufficient evidence supported the defendant’s conviction of first degree murder and first degree rape where the State’s expert testified that the victim, who weighed 92 pounds and was less than five feet tall, had a series of small, superficial stab wounds on her throat, consistent with “compliance or intimidation wounds,” and had “typical defense knife-type defense wounds” on the inside of her hands, her neck had been sliced with a knife, half-way severing her left jugular vein, and there was sperm inside her body. State v. Berry, 143 N.C. App. 187, 546 S.E.2d 145, 2001 N.C. App. LEXIS 269 (2001).

Although the victim did not testify that defendant penetrated her vaginally, a nurse testified that the victim told her at the hospital the night of the crime that the men had penetrated both her vagina and her rectum and the victim testified that defendant had committed all the same sex acts that the co-defendant had, which include vaginal penetration; thus, the evidence was sufficient to convict defend. State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

In a prosecution for first-degree statutory rape, under G.S. 14-27.2(a)(1), and second-degree forcible rape, under G.S. 14-27.3(a)(1), sufficient evidence was submitted showing that defendant was the perpetrator when the victim testified that defendant raped her and repeated this story to several people, so the denial of defendant’s motion to dismiss for lack of sufficient evidence that he was the perpetrator was proper, even though defendant presented evidence that he was not the perpetrator. State v. Bell, 159 N.C. App. 151, 584 S.E.2d 298, 2003 N.C. App. LEXIS 1432 (2003), cert. denied, 358 N.C. 733 , 601 S.E.2d 863, 2004 N.C. LEXIS 1013 (2004).

Although a nurse and doctor who examined an alleged rape victim testified that they did not find conclusive physical evidence that a sex act occurred, this medical testimony did not negate the victim’s testimony that defendant committed numerous sexual acts against her, which was corroborated by the forensic evidence; also, the State presented evidence of seminal fluid collected from the victim’s bedroom that matched defendant’s DNA. Therefore, the State presented sufficient evidence from which a jury could find that defendant committed first-degree statutory rape under G.S. 14-27.2(a)(1), first-degree sexual offense under G.S. 14-27.4(a)(1), and indecent liberties with a child under G.S. 14-202.1 . State v. Shepherd, 163 N.C. App. 646, 594 S.E.2d 439, 2004 N.C. App. LEXIS 581 (2004).

Defendant’s adjudication for first-degree attempted rape was affirmed and the trial court did not err in denying defendant’s motion to dismiss at the end of all the evidence, where: (1) defendant, who was 14 years old, told the victim, his 8-year-old step-sister, to come into his room; (2) when the victim entered the room, defendant pulled down her pants; (3) defendant then pulled down his own pants and touched the victim’s vagina with his penis; (4) when he heard his step-mother coming, defendant ran to his closet while pulling up his pants; (4) the step-mother found the victim under the covers in defendant’s bed not wearing pants or underwear; and (5) while the step-mother was in the room defendant hid in the closet. In re D.W., 171 N.C. App. 496, 615 S.E.2d 90, 2005 N.C. App. LEXIS 1358 (2005).

Trial court properly denied defendant’s motion to dismiss criminal charges against him; evidence that defendant forced the victim at knifepoint from the front of her home to a bedroom and then sexually assaulted her constituted sufficient evidence to satisfy the charge of kidnapping under G.S. 14-39(a), as well as the charge of rape under G.S. 14-27.2 and burglary under G.S. 14-51 . State v. Blizzard, 169 N.C. App. 285, 610 S.E.2d 245, 2005 N.C. App. LEXIS 680 (2005).

Complainant’s testimony that defendant’s penis penetrated her vagina “more than once” provided support for the rape charge provided sufficient evidence to support defendant’s conviction; thus, the denial of defendant’s motion to dismiss was proper. State v. Watson, 179 N.C. App. 228, 634 S.E.2d 231, 2006 N.C. App. LEXIS 1923 (2006).

Evidence supported defendant’s conviction for rape, statutory rape, sex offense, statutory sex offense, and sex offense in a parental role as: (1) defendant attacked the 14-year-old victim over a period of hours; (2) defendant’s expert testified that various wounds were inflicted while the victim was alive; (3) defendant raped the victim vaginally and anally while the victim was alive, leaving semen inside both her vagina and anus; (4) evidence from the victim’s lung tissue showed the victim was alive for a substantial period of time after the brain injury was inflicted; and (5) after hitting the victim in the head, defendant walked around thinking about how to cover up the crime, attempted to clean the victim up, and then sexually assaulted her body, all part of the same episode. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Victim’s testimony, corroborated by DNA evidence, that (1) defendant entered the victim’s vagina with his penis, (2) defendant forced himself upon the victim, (3) the victim fought defendant and made it known that the victim did not want to engage in sexual intercourse with defendant, (4) defendant hit the victim with a bottle, (5) defendant brandished a knife, and (6) defendant choked the victim to unconsciousness with his hands, was sufficient to support defendant’s conviction for first-degree rape. State v. Little, 188 N.C. App. 152, 654 S.E.2d 760, 2008 N.C. App. LEXIS 97 (2008).

Victim’s testimony that defendant possessed a shiny, silver object which the victim thought was a knife, together with defendant’s threatening behavior, was sufficient evidence that defendant displayed an article the victim reasonably believed was a dangerous weapon. Defendant’s threats were also sufficiently connected in time to the sexual acts. State v. Lawrence, 191 N.C. App. 422, 663 S.E.2d 898, 2008 N.C. App. LEXIS 1509 (2008), aff'd, 363 N.C. 118 , 678 S.E.2d 658, 2009 N.C. LEXIS 231 (2009).

Sufficient evidence supported defendant’s conviction of first degree rape, G.S. 14-27.2(a), as there was evidence of a mitochondrial DNA match between defendant’s parent and two hairs found in the victim’s bedroom. This evidence strongly suggested that the assailant was someone in the same maternal line as defendant’s parent, and defendant’s two brothers were in custody when the attack on the victim took place. State v. McAllister, 190 N.C. App. 289, 660 S.E.2d 247, 2008 N.C. App. LEXIS 832 (2008).

Evidence related to anal intercourse, from the victim’s journal entry and what statements she made to others, indicated that the sexual abuse by defendant began in 2001, and while the State purported to use the evidence to corroborate the victim’s testimony, it could not use the testimony for substantive purposes; although the State provided evidence of vaginal intercourse, such conduct was sufficient to support defendant’s first-degree rape conviction, not a first-degree sex offense, and thus State failed to provide substantial evidence of a first-degree sex offense in 2001. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Victim’s in-court testimony showed that in 2004 and 2005, defendant engaged in vaginal intercourse with her on numerous occasions, and such conduct was sufficient evidence of first-degree rape; although her journal entry and other witness testimony about statements she made indicated that defendant committed a sexual act through anal intercourse, there is no substantive evidence that during this time period, defendant committed a sexual act, and the State failed to provide substantial substantive evidence of a sexual act for the first-degree sex offense charges. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

State proved intent in an attempted first-degree forcible rape trial because defendant’s forcing the victim to undress at knife point and then stabbing her when she refused to approach constituted an overt act manifesting a sexual purpose or motivation. State v. Owen, 159 N.C. App. 204, 582 S.E.2d 689, 2003 N.C. App. LEXIS 1443 (2003).

Evidence Held Insufficient. —

Evidence of defendant’s intent was, at most, ambiguous where, as vicious as the attack was, the only suggestion of a sexual component was defendant’s persistent attempts to have the victim roll onto her stomach; while defendant’s behavior allowed speculation as to why he wanted the victim prone rather than supine or on her side, this behavior was not substantial evidence allowing a reasonable conclusion that defendant had an intent to gratify his passion on the victim notwithstanding her resistance. State v. Walker, 139 N.C. App. 512, 533 S.E.2d 858, 2000 N.C. App. LEXIS 986 (2000).

Evidence Insufficient to Support Sentence. —

While defendant assumed a leadership position in committing the offenses of kidnapping and rape, there was insufficient evidence that defendant acted with more than one other person or that defendant was in a position of trust and confidence with the victim; thus, the trial court’s imposition of a sentence in excess of the presumptive range was erroneous and an abuse of discretion. State v. Rogers, 157 N.C. App. 127, 577 S.E.2d 666, 2003 N.C. App. LEXIS 368 (2003).

XIV.Instructions

Failure to Instruct as to Force. —

An instruction which fails to charge that the carnal knowledge of the prosecutrix must have been accomplished by force and against her will to constitute the crime of rape must be held reversible error. State v. Simmons, 228 N.C. 258 , 45 S.E.2d 121, 1947 N.C. LEXIS 593 (1947).

Failure to Charge on Lesser Offense Proper. —

The court’s failure to charge the jury on a lesser crime than rape as principals and to submit guilt of a lesser offense as a permissible verdict was not error since there was no evidence from which the jury could find that any defendant committed an included crime of lesser degree. State v. Dawson, 281 N.C. 645 , 190 S.E.2d 196, 1972 N.C. LEXIS 1158 (1972).

Where there was no evidence of any included lesser offenses embraced within the indictments for rape and kidnapping, the court was under no duty to charge on lesser included offenses. State v. Bynum, 282 N.C. 552 , 193 S.E.2d 725, 1973 N.C. LEXIS 1107 , cert. denied, 414 U.S. 836, 94 S. Ct. 182, 38 L. Ed. 2d 72, 1973 U.S. LEXIS 463 (1973), cert. denied, 414 U.S. 869, 94 S. Ct. 182, 38 L. Ed. 2d 116, 1973 U.S. LEXIS 827 (1973).

The trial court did not err in failing to submit the lesser included offenses of assault with intent to commit rape and assault on a female where all the State’s evidence tended to show commission of rape and the defendant’s evidence was that he had never had intercourse with the prosecutrix nor did he touch her in a manner constituting an assault. State v. Lampkins, 286 N.C. 497 , 212 S.E.2d 106, 1975 N.C. LEXIS 1245 (1975), cert. denied, 428 U.S. 909, 96 S. Ct. 3220, 49 L. Ed. 2d 1216, 1976 U.S. LEXIS 2277 (1976).

Where all the evidence in a prosecution for rape revealed a completed act of sexual intercourse and the only dispute between the State and the defendant was whether the act was accomplished by consent or by force, there was no necessity to submit the lesser included offenses of assault with intent to commit rape and assault on a female. State v. Hall, 293 N.C. 559 , 238 S.E.2d 473, 1977 N.C. LEXIS 982 (1977); State v. Edmondson, 302 N.C. 169 , 273 S.E.2d 659, 1981 N.C. LEXIS 1028 (1981).

Where all the State’s evidence indicated that vaginal penetration of the victim by defendant took place after he showed her a knife and that the victim was in fear for her life, while defendant’s evidence was that he entered victim’s home at her invitation and that the act of sexual intercourse occurred with victim’s consent, there was no evidence of second degree rape, and no instruction thereon was required. State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Where there was no evidence to support a verdict of rape in the second degree, all of the evidence showing either rape in the first degree or no rape at all, the trial judge was not required to submit the lesser offense. State v. Kinch, 314 N.C. 99 , 331 S.E.2d 665, 1985 N.C. LEXIS 1710 (1985).

In a trial for first-degree rape when all the evidence tended to show that the accused committed the crime with which he was charged and there was no evidence of guilt of the lesser-included offense of attempted first-degree rape, the court correctly refused to charge on the unsupported lesser offense. State v. McNicholas, 322 N.C. 548 , 369 S.E.2d 569, 1988 N.C. LEXIS 464 (1988).

In a first-degree rape case, where the State introduced sufficient evidence of vaginal penetration through the victim’s testimony to permit a rational jury to find beyond a reasonable doubt that defendant engaged in forced intercourse with the victim, there was no error in the court’s refusal to instruct on lesser included offenses. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658, 1988 N.C. App. LEXIS 1067 (1988).

Although defendant contended that there was “substantial doubt” that he employed or used a dangerous or deadly weapon in the commission of rape, any “doubt” on this issue was for the jury to resolve; therefore, there being no evidentiary basis on which to submit second-degree rape charges to the jury, the trial court properly denied defendant’s request therefor. State v. Grimes, 96 N.C. App. 489, 386 S.E.2d 214, 1989 N.C. App. LEXIS 1027 (1989), cert. denied, dismissed, 327 N.C. 485 , 397 S.E.2d 227, 1990 N.C. LEXIS 851 (1990).

Pursuant to G.S. 15-144.1 , trial court properly declined to instruct a jury regarding assault on a female. Conduct that defendant relied on as supporting the assault charge was unrelated to the conduct supporting the first degree rape conviction, under G.S. 14-27.2 ; however, that conduct supported the G.S. 14-39 kidnapping conviction. State v. Thomas, 196 N.C. App. 523, 676 S.E.2d 56, 2009 N.C. App. LEXIS 520 (2009).

When Instructions on Lesser Included Offense Are Warranted. —

Instructions on the lesser included offenses of first-degree rape are warranted only when there is some doubt or conflict concerning the crucial element of penetration. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Instructions on the lesser included offenses of first-degree rape are warranted only when there is some doubt or conflict concerning crucial elements of the offense. State v. Charles, 92 N.C. App. 430, 374 S.E.2d 658, 1988 N.C. App. LEXIS 1067 (1988).

Where the evidence in the record only tended to establish that defendant raped his minor niece, the court did not err in denying defendant’s requested instruction on attempted first degree rape. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

When Charge on Lesser Included Offense Not Warranted. —

When the State seeks a conviction only on the greater offense and tries the case on an “all or nothing basis,” the trial court needs to present an instruction on the lesser offense only when the defendant presents evidence thereof or when the State’s evidence is conflicting; hence, in case in which the State proceeded on an “all or nothing basis” in prosecution of defendant for first-degree sexual offense and first-degree rape of two year old, the trial court did not err in refusing to instruct the jury on attempted first-degree rape and attempted first-degree sexual assault. State v. Ward, 118 N.C. App. 460, 455 S.E.2d 666 (1995).

When Charge on Attempted Rape Is Warranted. —

Instructions pertaining to attempted first-degree rape as a lesser included offense of first-degree rape are warranted when the evidence pertaining to the crucial element of penetration conflicts, or when, from the evidence presented, the jury may draw conflicting inferences. State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

When Charge of Attempted Rape Not Required. —

Where there is evidence of some penetration sufficient to support a conviction of rape and defendant denies having had any sexual relations with the victim, defendant is not entitled to a charge of attempted rape. State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Where defendant’s confession was the only evidence introduced at trial establishing his participation in the gang rape of an 11-year old victim, the trial court correctly refused to instruct the jury on attempted rape. State v. Brown, 112 N.C. App. 390, 436 S.E.2d 163, 1993 N.C. App. LEXIS 1139 (1993), aff'd, 339 N.C. 606 , 453 S.E.2d 165, 1995 N.C. LEXIS 22 (1995).

Defendants were not entitled to a jury instruction on second-degree rape where the State’s evidence tended to prove a first-degree rape, and defendants’ evidence did not conflict with the State’s evidence as to whether each defendant aided and abetted the other, but instead, was itself sufficient to support the jury in finding the element of aiding and abetting, by acts of encouragement and protection, and conflicted with the State’s evidence only on the issue of consent. State v. Amerson, 316 N.C. 161 , 340 S.E.2d 98, 1986 N.C. LEXIS 1917 (1986).

Defendant was not entitled to an instruction on the lesser included offense of second-degree rape, where he had an open knife in his hand or lying in the open easily within his reach during all times pertinent to his act of sexual intercourse with the victim, the evidence would not support a reasonable finding that the victim was not aware of the knife, and defendant’s statement to a police officer only amounted to a description of how he employed or displayed the knife, not a denial that he had employed or displayed a knife. State v. Langford, 319 N.C. 332 , 354 S.E.2d 518, 1987 N.C. LEXIS 1931 (1987).

Defendant’s mere failure to recollect whether he had knife open during rape created no conflict with victim’s clear and unequivocal testimony that he held the open knife to her throat. Nor was a conflict created in the evidence by victim’s response on cross-examination to the question of whether she actually saw a knife or whether the knife was “just mentioned,” as taking her answer in light of her other testimony concerning the knife, it was clear that she answered, in effect, that the knife was not “just mentioned,” and that she actually saw the knife as defendant brought it to her throat. In fact, victim was even able to estimate the length of the open blade before it was placed to her throat. Therefore, defendant was not entitled to an instruction on the lesser offense of second-degree rape. State v. Langford, 319 N.C. 340 , 354 S.E.2d 523, 1987 N.C. LEXIS 1923 (1987).

Instruction on Lesser-Included Offense Properly Denied. —

Where both defendant and the victim agreed that weapons were displayed during the altercation, and the only fact in dispute was whether the sex was consensual; the trial court correctly denied the instruction to charge on a lesser-included offense. State v. Mustafa, 113 N.C. App. 240, 437 S.E.2d 906, 1994 N.C. App. LEXIS 4 , cert. denied, 336 N.C. 613 , 447 S.E.2d 409, 1994 N.C. LEXIS 319 (1994).

Because there was no dispute as to the age of defendant, but, rather, defendant contended that he did not commit the crime of rape of a child, under plain error review, the trial court did not err in failing to instruct the jury upon the lesser offense of first-degree rape. State v. Agustin, 229 N.C. App. 240, 747 S.E.2d 316, 2013 N.C. App. LEXIS 881 (2013).

Lesser Offenses Improperly Submitted to Jury. —

In prosecutions for rape, when all the evidence tended to show a completed act of intercourse and the only issue was whether the act was with the prosecuting witness’s consent or by force and against her will, it was not proper to submit to the jury lesser offenses included within a charge of rape. State v. Davis, 291 N.C. 1 , 229 S.E.2d 285, 1976 N.C. LEXIS 931 (1976).

Instruction on “Use of Deadly Weapon”. —

The State is only required to show that defendant possessed a deadly or dangerous weapon at the time of the rape and that the victim was aware of the presence of the weapon because it had been displayed or employed; therefore, although the trial court’s instruction did not emphasize the victim’s awareness of the weapon, the instruction made clear that the State was required to prove that the weapon was displayed in some fashion, and there was no error. State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383, 1989 N.C. App. LEXIS 464 (1989).

Appellate court affirmed defendant’s first-degree rape conviction, where defendant did not object to the jury instruction, because, even if the trial court erred by instructing the jury that a knife was a dangerous weapon as a matter of law, the trial court’s instruction did not amount to plain error as, in light of the entire record, particularly the victim’s testimony that she knew it was a knife that defendant took from his pocket, that she asked him not to hurt her upon seeing the knife, and that she was scared, the jury likely would have found that the victim reasonably believed the knife to be a dangerous or deadly weapon. State v. Cartwright, 177 N.C. App. 531, 629 S.E.2d 318, 2006 N.C. App. LEXIS 1076 (2006).

Withdrawal of Request for Instructions Held Voluntary. —

Defendant on trial for first-degree rape and first-degree sexual offense was not forced by any erroneous ruling of the trial court to withdraw his request for instructions; accordingly, the defendant’s withdrawal of his request for instructions on involuntary commitment was voluntary and not improperly coerced by a mistaken ruling of the trial court. State v. Coppage, 94 N.C. App. 630, 381 S.E.2d 169, 1989 N.C. App. LEXIS 623 (1989).

Instruction on Defendant’s Admission as to Presence. —

In a prosecution for first-degree rape where the trial court instructed that the defendant’s admission that he was in the car with the rape victim could be considered by the jury as an admission of a fact relating to the crime charged, there was no merit to defendant’s contention that such instruction could have led the jury to believe that his mere presence was sufficient for conviction and that he had therefore committed the crime, since the trial court’s instructions made clear what the jury must find in order to convict defendant. State v. Hammonds, 301 N.C. 713 , 272 S.E.2d 856, 1981 N.C. LEXIS 1023 (1981).

Prejudicial Expression of Opinion by Judge. —

The trial judge committed prejudicial error by expressing his opinion on the evidence when he instructed the jury that there was “considerable evidence” that defendant had committed the crime charged, and when he further went on to say “not satisfied with that, the evidence tends to show that he, the defendant, again had intercourse with her” intimating to the jury that it was his opinion that the defendant was guilty. State v. Head, 24 N.C. App. 564, 211 S.E.2d 534, 1975 N.C. App. LEXIS 2432 (1975).

Instructions Permitting Conviction of Both Defendants If One Found Guilty. —

Where jury instructions in case in which two defendants were jointly tried for rape and murder were susceptible to the construction that the jury should convict both if it found one guilty, defendants would be granted a new trial as to the charges against them. State v. McCollum, 321 N.C. 557 , 364 S.E.2d 112, 1988 N.C. LEXIS 11 (1988).

Failure to Instruct on Corroborative Evidence. —

Where the evidence clearly showed that defendant engaged in sexual acts with child on more than one occasion, the State focused the child’s testimony on the incident in question and made it clear that defendant was charged for committing that act, and the jury was charged solely as to this incident, there was no prejudicial error in failing to instruct on corroborative evidence. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544 , 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

Instruction on Serious Injury Held Not Error. —

In prosecution for first-degree rape and first-degree sexual offense, the trial court did not err in instructing the jury on the element of serious injury, where the trial court corrected its instructions on the mental element of serious injury when the lack of any evidence tending to show mental injury was drawn to the court’s attention, and the trial court then specifically instructed the jury that there was no evidence of mental injury in the present case and that the jury’s sole consideration was whether there was serious bodily injury. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

No Error In Failing To Give Instruction On Voluntary Intoxication Not Error. —

Trial court was not required to instruct the jury on voluntary intoxication because defendant, who was convicted of first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1 did not present evidence to support a conclusion that, at the time the acts were committed, his mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming the requisite intent; the jury heard evidence from the State showing that defendant made careful plans to be alone with the child, and in at least one instance, tricked her into coming out of her room after she had locked herself away from him. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

No Plain Error. —

In defendant’s trial for first-degree rape and first-degree sex offense, the trial court did not commit plain error in referring to the victim as the victim during jury instructions, as case law held that the use of that term did not constitute plain error in instructions, plus it was not found that the term had a probable impact on the jury’s finding of guilt. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Invited Error on Instruction. —

In defendant’s trial for first-degree rape and first-degree sex offense, defendant’s attorney actively participated in crafting the trial court’s response to the jury question, agreed with the trial court’s interpretation that a penis could be considered an “object,” and denied the trial court’s proposed clarification between vaginal intercourse and a sexual act, and thus defendant invited any error stemming from the trial court’s instructions. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Instruction Held Proper. —

Where instruction given in first-degree rape case was essentially the pattern jury instruction in N.C.P.I. — Crim. 101.36, there was no error, under the “plain error” doctrine or otherwise. State v. Ayers, 92 N.C. App. 364, 374 S.E.2d 428, 1988 N.C. App. LEXIS 1044 (1988).

Instructions as to state’s burden in proving first-degree rape, and on the consequences of jury’s finding that defendant was insane at the time he perpetrated the crime, were held proper. State v. Coppage, 94 N.C. App. 630, 381 S.E.2d 169, 1989 N.C. App. LEXIS 623 (1989).

Trial court did not err in declining to instruct the jury on attempted first degree rape where there was no evidence that defendant merely attempted to rape the victim and all of the State’s evidence tended to show that defendant penetrated the victim. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419, 1989 N.C. App. LEXIS 814 (1989).

Trial court properly instructed the jury that it could find defendant guilty of the crimes of first-degree rape and first degree sexual offense if it found that defendant either displayed a dangerous or deadly weapon or was aided and abetted by one or more other persons during their commission, pursuant to G.S. 14-27.2(a)(2)(a) and (c) and G.S. 14-27.4(a)(2)(a) and (c). State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

Defendant’s convictions for first-degree rape of a child under the age of 13, in violation of G.S. 14-27.2(a)(1), were affirmed because the trial court properly instructed the jury on all 11 counts as its charge on the initial instruction on the elements of first-degree rape applied to all 11 counts. State v. Bullock, 178 N.C. App. 460, 631 S.E.2d 868, 2006 N.C. App. LEXIS 1572 (2006), limited, State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Instruction Held Improper. —

In a case in which the defendant and an accomplice raped a woman, defendant was entitled to a new trial on the charge of first degree rape by acting in concert with someone else because the jury instruction referred to guilt both as a principle and by acting in concert, which allowed the jury to convict defendant twice for the same crime, in violation of double jeopardy rights. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560, 2007 N.C. App. LEXIS 2574 (2007), rev'd in part, 362 N.C. 340 , 663 S.E.2d 311, 2008 N.C. LEXIS 490 (2008).

XV.Attempt.

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 14-27.6 or other prior provisions.

Assault with Intent to Commit Rape Under Former G.S. 14-22. —

See State v. Harris, 277 N.C. 435 , 177 S.E.2d 865, 1970 N.C. LEXIS 628 (1970); State v. Hudson, 280 N.C. 74 , 185 S.E.2d 189, 1971 N.C. LEXIS 1093 (1971); State v. Norman, 14 N.C. App. 394, 188 S.E.2d 667, 1972 N.C. App. LEXIS 2138 (1972); State v. Young, 16 N.C. App. 101, 191 S.E.2d 369, 1972 N.C. App. LEXIS 1648 (1972); State v. Rice, 18 N.C. App. 575, 197 S.E.2d 245, 1973 N.C. App. LEXIS 1943 , cert. denied, 283 N.C. 757 , 198 S.E.2d 727, 1973 N.C. LEXIS 1093 (1973); State v. Dais, 22 N.C. App. 379, 206 S.E.2d 759, 1974 N.C. App. LEXIS 2339 , cert. denied, 285 N.C. 664 , 207 S.E.2d 758, 1974 N.C. LEXIS 1101 (1974); State v. Webb, 26 N.C. App. 526, 216 S.E.2d 382, 1975 N.C. App. LEXIS 2101 , cert. denied, 288 N.C. 251 , 217 S.E.2d 676, 1975 N.C. LEXIS 966 (1975); State v. Bradshaw, 27 N.C. App. 485, 219 S.E.2d 561, 1975 N.C. App. LEXIS 1883 (1975), cert. denied, 289 N.C. 299 , 222 S.E.2d 699, 1976 N.C. LEXIS 1273 (1976); State v. Giles, 34 N.C. App. 112, 237 S.E.2d 305, 1977 N.C. App. LEXIS 1590 (1977); State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978); State v. Little, 51 N.C. App. 64, 275 S.E.2d 249, 1981 N.C. App. LEXIS 2191 (1981).

Elements of Proof. —

In order to prove the offense set forth in former G.S. 14-27.6 , the State must prove that an accused had the intent to commit the crime and committed an act that goes beyond mere preparation, but falls short of actual commission of the offense. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982); State v. Moser, 74 N.C. App. 216, 328 S.E.2d 315, 1985 N.C. App. LEXIS 3450 (1985); State v. Harris, 319 N.C. 383 , 354 S.E.2d 222, 1987 N.C. LEXIS 1930 (1987).

An attempt to commit rape has the elements of (1) an intent to commit rape, and (2) an overt act done for that purpose, which goes beyond mere preparation, but falls short of the completed offense. State v. Morrison, 84 N.C. App. 41, 351 S.E.2d 810, 1987 N.C. App. LEXIS 2390 , cert. denied, 319 N.C. 408 , 354 S.E.2d 724, 1987 N.C. LEXIS 2007 (1987).

Before a defendant may be convicted of attempted rape, the State must prove, beyond a reasonable doubt, that the defendant: (1) had the specific intent to rape the victim, and (2) committed an act which went beyond mere preparation but fell short of the actual commission of the rape. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987); State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Intent is an essential element of attempted rape. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

State Must Show Substantial Evidence of Defendant’s Intent. —

Although to prove the charge of attempted first-degree rape the State is not required to show an actual physical attempt to have sexual intercourse with the victim, there must be substantial evidence that defendant had the intent to gratify his passion upon the victim notwithstanding any resistance on her part. State v. Nicholson, 99 N.C. App. 143, 392 S.E.2d 748, 1990 N.C. App. LEXIS 468 (1990) (holding evidence insufficient to convict defendant of attempted first-degree rape) .

Proof of Intent to Rape. —

To show an intent to rape, the State must prove that defendant intended to have sexual intercourse with the victim notwithstanding any resistance on her part. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

Sexually motivated assaults may give rise to an inference that defendant intended to rape his victim, notwithstanding that other inferences are also possible. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987); State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

State Need Not Show Actual Physical Attempt to Have Intercourse. —

To convict a defendant of attempted rape, the State is not required to show that he made an actual physical attempt to have intercourse. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

The element of intent is established if the evidence shows that defendant, at any time during the incident, had an intent to gratify his passion upon the victim, notwithstanding any resistance on her part. It is not necessary that defendant retain the intent throughout the incident. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988); State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

The State need not show that the defendant made an actual physical attempt to have intercourse or that he retained the intent to rape his victim throughout the incident. State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

It is sufficient if defendant has the intent to rape at any point during the assault, and it need not be shown that he made an actual, physical attempt to have intercourse. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

The element of intent is established if the evidence shows that defendant, at any time during the incident, had an intent to gratify his passion upon the victim, notwithstanding any resistance on her part. It is not necessary that defendant retain the intent throughout the incident. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Conviction Under Former G.S. 14-27.6 and G.S. 14-32 Not Double Jeopardy. —

In a criminal prosecution defendant was not subjected to double jeopardy where he was charged and convicted of assault with a deadly weapon with intent to kill inflicting serious injury and attempt to commit first-degree rape, though both crimes arose from the same series of events, since each offense charged included an element not common to the other offense. State v. Glenn, 51 N.C. App. 694, 277 S.E.2d 477, 1981 N.C. App. LEXIS 2301 (1981).

Intoxication may be a valid defense to the crime of attempted rape. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Attempted Rape of Child. —

In order to prove attempted first degree rape of three and a half year old, the State had to show that victim was 12 years old or less, that defendant was at least 12 years old and at least four years older than victim, that defendant had the intent to engage in vaginal intercourse with victim, and that defendant committed an act that went beyond mere preparation but fell short of actual commission of intercourse. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110, 1985 N.C. App. LEXIS 4330 (1985).

To support a conviction for breaking or entering and attempted first-degree rape, the State’s evidence must show that defendant broke or entered the victim’s home with the intent to commit the felony of rape. In addition, the State’s evidence must show that defendant had the intent to commit the crime of rape as defined by G.S. 14-27.2 and that defendant committed an act which went beyond mere preparation, but fell short of the actual completion of the offense. State v. Parks, 77 N.C. App. 778, 336 S.E.2d 424, 1985 N.C. App. LEXIS 4368 (1985).

Admissibility of Other Acts Establishing Pattern of Conduct. —

In a prosecution for attempted rape by defendant of his stepdaughter, testimony which tends to show that defendant systematically engaged in nonconsensual sexual relations with his stepdaughters as they matured physically, a pattern of conduct embracing the offense charged, is properly admitted. State v. Goforth, 59 N.C. App. 504, 297 S.E.2d 128, 1982 N.C. App. LEXIS 3140 (1982).

Admissibility of Prior Conviction. —

Evidence of defendant’s prior conviction in 1977 for assault with intent to rape, as well as his recent release from prison, offered to prove that his intent in assaulting and kidnapping his victim was to rape her, was properly admitted for that purpose in trial for kidnapping and attempted rape. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

Instructions pertaining to attempted first-degree rape as a lesser included offense of first degree rape are warranted when the evidence pertaining to the crucial element of penetration conflicts or when, from the evidence presented, the jury may draw conflicting inferences. State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

An attempt instruction is not warranted merely because there is no medical evidence of penetration or other physical symptoms, as long as there is sufficient evidence of completed acts of fellatio and anal intercourse. State v. Callahan, 86 N.C. App. 88, 356 S.E.2d 403, 1987 N.C. App. LEXIS 2658 (1987).

The fact that defendant verbally manifested his intent to rob the victim when he first grabbed hold of her did not exclude a reasonable inference by the jury that once defendant learned that the victim had no money, he formed the intent to gain some other gratification from the situation. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Evidence Held Sufficient. —

The evidence supported a reasonable inference that defendant removed his victim for the purpose of facilitating an attempt to rape her, where he grabbed her by the throat, ordered her to drive to a secluded, deserted parking lot beside a bus and turn off her taxi’s lights, he commanded her to pull her pants down to her knees and inquired about her underclothing, and he stated his intent to commit at least one manner of sexual attack on her, not necessarily to the exclusion of any other. The jury could have reasonably inferred that, but for the victim’s ingenuity and courage, she would have been subjected to attempted forcible sexual intercourse. State v. Whitaker, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

Evidence held sufficient to allow a jury to infer that defendant intended to rape his victim. State v. Hall, 85 N.C. App. 447, 355 S.E.2d 250, 1987 N.C. App. LEXIS 2629 (1987).

Evidence of 20-year-old defendant’s action with nine-year-old child was sufficient to support the jury’s verdict that defendant was guilty of attempted first-degree rape, even though he stopped when she started to cry. State v. Griffin, 319 N.C. 429 , 355 S.E.2d 474, 1987 N.C. LEXIS 2026 (1987).

Testimony of victim that defendant dragged her down a hallway toward a guest bedroom, put his hand down over her shoulder and down the front of her shirt, and grabbed her breasts was sufficient circumstantial evidence from which the jury could infer defendant’s intent to engage in vaginal intercourse with the victim by force and against her will. State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853, 1987 N.C. App. LEXIS 3471 (1987), aff'd, 322 N.C. 467 , 368 S.E.2d 386, 1988 N.C. LEXIS 241 (1988).

Where defendant grabbed the victim from behind; dragged her several feet; forced her to the ground, covering her mouth with hand; and proceeded to fondle her without her consent, desisting only after she kicked his groin area, this was ample evidence to support an inference that defendant, at some point during the attack, intended to forcibly rape the victim despite her resistance. State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

Where the defendant was playing with his pants zipper prior to the attack and during the attack he fumbled with the victim’s shorts and then began rubbing her crotch, this constituted sufficient evidence of overt sexual behavior from which the jury could properly infer, notwithstanding the possibility of other inferences, that defendant intended to engage in vaginal intercourse with his victim. State v. Dunston, 90 N.C. App. 622, 369 S.E.2d 636, 1988 N.C. App. LEXIS 585 (1988).

Charge Improper. —

It was error for the Court of Appeals to hold the lesser included offense of attempted second degree rape should have been submitted where the State submitted positive evidence of every element of the crime and the defendant testified that the event was consensual. If the jury had believed the defendant’s evidence, he would have been found not guilty; the defendant did not present evidence of a lesser included offense. State v. Nelson, 341 N.C. 695 , 462 S.E.2d 225, 1995 N.C. LEXIS 529 (1995).

Sufficiency of Evidence to Support Felony Murder Charge. —

Evidence as to the position of the victim’s legs and evidence of the removal of clothes from the lower part of the victim’s body was sufficient, with other evidence, to be submitted to the jury on a charge of felony murder when the underlying felony was attempted rape. State v. Harris, 319 N.C. 383 , 354 S.E.2d 222, 1987 N.C. LEXIS 1930 (1987).

§ 14-27.25. Statutory rape of person who is 15 years of age or younger.

  1. A defendant is guilty of a Class B1 felony if the defendant engages in vaginal intercourse with another person who is 15 years of age or younger and the defendant is at least 12 years old and at least six years older than the person, except when the defendant is lawfully married to the person.
  2. Unless the conduct is covered under some other provision of law providing greater punishment, a defendant is guilty of a Class C felony if the defendant engages in vaginal intercourse with another person who is 15 years of age or younger and the defendant is at least 12 years old and more than four but less than six years older than the person, except when the defendant is lawfully married to the person.

History. 1995, c. 281, s. 1; 2015-62, s. 1(a); 2015-181, s. 7(a), (b).

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

Editor’s Note.

This section was formerly codified as G.S. 14-27.7 A. It was recodified as G.S. 14-27.25 by Session Laws 2015-181, s. 7(a), effective December 1, 2015.

Session Laws 2015-62, s. 1(d), made the amendment to this section by Session Laws 2015-62, s. 1(a), applicable to offenses committed on or after December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 7(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2015-62, s. 1(a), effective December 1, 2015, substituted “15 years of age or younger” for “13, 14, or 15 years old” in the section heading and in subsections (a) and (b); and added “Unless the conduct is covered under some other provision of law providing greater punishment,” in subsection (b). For applicability, see editor’s note.

Session Laws 2015-181, s. 7(b), effective December 1, 2015, deleted “or sexual offense” following “Statutory rape” in the section heading; in subsection (a), deleted “or a sexual act” following “vaginal intercourse” and; inserted “at least 12 years old and”; and in subsection (b), deleted “or a sexual act” following “vaginal intercourse”; and inserted “at least 12 years old and.” For applicability, see editor’s note.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

Constitutionality. —

Even though consent is not a defense to “statutory” rape under this section, the sentencing scheme does not violate the North Carolina Constitution. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195, 1999 N.C. App. LEXIS 604 (1999), aff'd, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Sentencing scheme under G.S. 14-27.7 A reflects a rational legislative policy, is not disproportionate to the crime, and is therefore constitutional; further, the exemption for married couples from G.S. 14-27.7 A(a) does not violate equal protection. State v. Clark, 161 N.C. App. 316, 588 S.E.2d 66, 2003 N.C. App. LEXIS 2047 (2003).

Double Jeopardy. —

Defendant’s claim that by failing to differentiate the various charges by providing different dates for the offenses and listing the underlying acts, the indictments opened the door to defendant being subjected to double jeopardy for the same acts on the same dates, was rejected because: (1) defendant’s indictments for statutory sexual offense, statutory sexual offense against a person who was 13, 14, or 15 years of age, and sexual offense were in compliance with the requirements of G.S. 15-144.2 , and the indictments matched the wording of N.C. G.S. 14-27.4(a)(1), G.S. 14-27.7 A(a), and G.S. 14-27.5(a)(1); (2) defendant’s indictments for the charges of taking indecent liberties with a child matched the wording of G.S.14-202.1(a)(2); and (3) defendant’s assault on a female indictments matched the wording of G.S. 14-33(c)(2); each of the indictments was sufficient to inform defendant of the charges against defendant, and defendant failed to show any deprivation of defendant’s ability to prepare a defense due to a lack of specificity in the indictments. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Double jeopardy argument would have been unsuccessful at trial when defendant was convicted of both second-degree rape and statutory rape, predicated on a single act of sexual intercourse with the fifteen-year-old and mentally disabled victim, because neither of the offenses was a lesser included offense of the other based on the separate and distinct elements that had to be proven for each offense. State v. Banks, 367 N.C. 652 , 766 S.E.2d 334, 2014 N.C. LEXIS 961 (2014).

Sentences for Convictions of Both Statutory Rape and Second Degree Rape Based on Single Act of Sexual Intercourse Were Prohibited. —

Defendant was entitled to relief on motion for appropriate relief because he received ineffective assistance when his counsel failed to object to judgment which sentenced him for convictions of both statutory rape and second degree rape, G.S. 14-27.3 , that were based upon a single act of sexual intercourse. A prior appellate opinion, issued before defendant’s trial and judgment, held that statutory rape and first degree rape convictions based on a single act of intercourse were prohibited, and second degree rape was a lesser included offense of first degree rape. State v. Banks, 225 N.C. App. 417, 736 S.E.2d 843, 2013 N.C. App. LEXIS 131 (2013), rev'd, 367 N.C. 652 , 766 S.E.2d 334, 2014 N.C. LEXIS 961 (2014).

Indecent Liberties and Sexual Offense Were Not Lesser Included Offenses. —

Because defendant molested the victim, his granddaughter, for many years prior to having vaginal intercourse with her beginning around age 14, the jury could infer that defendant continued his additional acts of touching and other sexual acts. Therefore the evidence was sufficient to convict defendant of statutory sexual offense under G.S. 14-27.4 and indecent liberties in violation of G.S. 202.1(a), on top of the statutory rape charges under G.S. 14-27.7 A(a). State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1, 2011 N.C. App. LEXIS 1740 (2011).

Right Against Self-Incrimination. —

Trial court erred by admitting defendant’s affidavit of indigency into evidence because in doing so, it required defendant to surrender his Fifth Amendment right against compelled self-incrimination in order to assert his right to the assistance of counsel, as his statement of his date of birth on his affidavit was testimonial because he was charged with abduction of a child and statutory rape. However, the error was harmless because neither charge required the State to prove defendant’s exact age and the victim’s testimony established that defendant was 19 years old and she was 14 when the crimes occurred. State v. Diaz, 372 N.C. 493 , 831 S.E.2d 532, 2019 N.C. LEXIS 790 (2019).

Consent is not a defense to a crime codified under this section. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195, 1999 N.C. App. LEXIS 604 (1999), aff'd, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Mistake of age is not a defense to the crime codified under this section. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195, 1999 N.C. App. LEXIS 604 (1999), aff'd, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Consent is not a defense to this statute although the legislature created it as a separate statute, rather than amending G.S. 14-27.2(a)(1). State v. Anthony, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Evidence of defendant’s prior assault on another victim was admissible. to show common scheme and intent where the prior assault and the current charges were similar in nature: in both instances the victims, similar in age, visited various residences or places in which they were unfamiliar and then were taken by automobile to isolated areas at night; during both instances, defendant told the victims something was wrong with the automobile, asked the victims to get out of the automobile, and then proceeded to sexually assault them. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404, 2000 N.C. App. LEXIS 1403 (2000).

Defendant Not Entitled to Admission of Prior Assault Evidence. —

The trial court did not abuse its discretion in denying admissibility of evidence of a victim’s prior assault which the defendant claimed the victim fabricated so as to obtain a pregnancy test and which he wanted to introduce to demonstrate “habit” where it noted that the “two incidents” occurring “two years apart” were not sufficient to constitute a habit. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404, 2000 N.C. App. LEXIS 1403 (2000).

Satellite-Based Monitoring. —

Trial court did err by concluding that defendant was subject to enrollment in satellite-based monitoring pursuant to G.S. 14-208.40(a)(2) after he pleaded guilty to statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a) because the offense of solicitation to take an indecent liberty with a minor inherently involved the physical, mental, or sexual abuse of a minor. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Neither the North Carolina Department of Correction nor the trial court was responsible for any type of notice regarding defendant’s eligibility for satellite-based monitoring (SBM) because G.S. 14-208.40 A was the applicable statute for determining his eligibility for enrollment in SBM and the time period of his enrollment since when defendant entered an Alford plea to four counts of taking indecent liberties with a minor in violation of G.S. 14-27.7 A(a), he was newly convicted of a reportable conviction. since defendant was placed on probation and, as a condition of his probation, was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40 A, not G.S. 14-208.40B. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Trial court properly exercised subject matter jurisdiction pursuant to G.S. 14-208.40 A and followed the proper hearing procedures in assessing defendant’s eligibility for satellite-based monitoring because the trial court determined that defendant was convicted of a reportable offense, statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a), considered the assessment prepared by the North Carolina Department of Correction and the testimony of the witnesses; the General Assembly devised a separate procedure for determining eligibility for satellite-based monitoring and clearly granted the superior courts subject matter jurisdiction to conduct these determinations pursuant to specific statutory procedures. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Satellite-Based Monitoring Improper. —

Since only two of the trial court’s findings were supported by competent evidence, which could support findings of fact that could lead to a conclusion that defendant required the highest possible level of supervision and monitoring, it was be proper to remand the case to the trial court to consider the evidence and make additional findings; the State did not present any evidence to support the finding that the statutory sex offenses in violation of G.S. 14-27.7 A(a) occurred when other children were present in defendant’s home, and the trial court’s finding regarding defendant’s lack of remorse was unsupported by competent evidence because it was unclear whether the trial court found that defendant’s Alford plea itself showed a lack of remorse or whether defendant’s actions showed a lack of remorse. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Because defendant’s conviction for statutory rape, based upon acts committed in 2005, could not be considered a reportable conviction, defendant was not eligible for satellite-based monitoring for the offense. State v. Kpaeyeh, 246 N.C. App. 694, 784 S.E.2d 582, 2016 N.C. App. LEXIS 363 (2016).

Conviction Overturned. —

The defendant’s pre-December 1995 conviction for statutory rape with a fourteen-year-old could not stand where G.S. 14-27.7 A which made rape statutory if the victim is under fifteen years of age did not become effective until 1 December 1995, five days after defendant had sex with the fourteen-year-old. State v. Crockett, 138 N.C. App. 109, 530 S.E.2d 359, 2000 N.C. App. LEXIS 548 (2000).

Date of Offense Not Necessary for Statutory Rape Indictment. —

The fact that an indictment charging the defendant with statutory rape did not specify the exact date the offense was committed was immaterial because the evidence at trial showed that this offense occurred in January 1996 when the victim was fourteen which age satisfied the requirements of this section. State v. Crockett, 138 N.C. App. 109, 530 S.E.2d 359, 2000 N.C. App. LEXIS 548 (2000).

When defendant was charged with statutory rape of a victim, under G.S. 14-27.7 A(a), if the victim’s testimony was insufficient to establish that defendant had sex with the victim twice in a certain month, the State nevertheless presented substantial evidence that defendant had sex with the victim at least six times between two dates, including at least four times in another certain month, and the variance between the period of time in the indictment within which the offenses occurred and the State’s evidence at trial was not material and did not deprive defendant of the opportunity to adequately present a defense, so dismissal was not required. State v. Hueto, 195 N.C. App. 67, 671 S.E.2d 62, 2009 N.C. App. LEXIS 62 (2009).

Jury Instruction on Crime Not Set Out in Indictment. —

The court erred in entering judgment upon the defendant’s conviction of a statutory sexual offense, a violation of this section, following instructions under this section where the indictment alleged a forcible sexual offense, a violation of G.S. 14-27.4 . State v. Miller, 137 N.C. App. 450, 528 S.E.2d 626, 2000 N.C. App. LEXIS 418 (2000).

Jury Instruction on Sex Offense Proper. —

Trial court did not commit plain error in instructing the jury on a sex offense and accepting a guilty verdict thereon as there was evidence upon which the jury could have found that defendant committed a sexual act upon the victim and the jury instructions as a whole were correct. State v. Tadeja, 191 N.C. App. 439, 664 S.E.2d 402, 2008 N.C. App. LEXIS 1503 (2008).

Indictment Sufficient. —

Short-form indictment charging violation of G.S. 14-27.7 A(a) was sufficient when it alleged that defendant unlawfully, willfully, and feloniously engaged in a sexual act with a person of the age of 13 years, that defendant was at least six years older than the victim, and that he was not lawfully married to the victim; the indictment complied with the requirements of G.S. 15-144.2(a) and was sufficient to put him on notice of the crime of which he was accused. State v. Bradley, 179 N.C. App. 551, 634 S.E.2d 258, 2006 N.C. App. LEXIS 1968 (2006).

Indictment which was couched in the language of the statute was sufficient. State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267, 2006 N.C. App. LEXIS 2251 (2006).

Trial court had jurisdiction to enter judgment on defendant’s statutory rape charge under G.S. 14-27.7 A(a) as the indictment was not facially invalid because it alleged that defendant carnally knew the victim, instead of that he had vaginal intercourse with the victim since at common law, carnal knowledge and sexual intercourse were synonymous; the indictment alleged all material elements of G.S. 14-27.7 A, even though it did not contain the language “by force and against her will” under G.S. 15-144.1 since G.S. 15-144.1 did not apply as its subsections did not address an indictment for statutory rape of a child 13, 14, or 15 years old. State v. Morgan, 225 N.C. App. 784, 741 S.E.2d 422, 2013 N.C. App. LEXIS 230 (2013).

Because neither force nor a lack of consent were elements of the crime of attempted statutory rape, the State was not required to prove that the vaginal intercourse was by force and against the victim’s will and, therefore, such an allegation was not required in the short form indictment. State v. Gibert, 229 N.C. App. 476, 747 S.E.2d 253, 2013 N.C. App. LEXIS 932 (2013).

Short form indictment was sufficient to vest jurisdiction in the trial court because the phrase “ravish and carnally know” was essentially synonymous with vaginal intercourse where the victim was under the age of consent; the indictment alleged that defendant attempted to engage in vaginal intercourse with the victim; and allegations of force or a lack of consent were not required as they were not elements of the crime of attempted statutory rape. State v. Gibert, 229 N.C. App. 476, 747 S.E.2d 253, 2013 N.C. App. LEXIS 932 (2013).

Indictment Insufficient. —

While defendant abandoned error as to one of the six challenged indictments filed against him, each alleging charges of first-degree sexual offense, the trial court erred in failing to dismiss the remaining five upon defendant’s motion as fatally defective, given that they erroneously charged two similar but distinct crimes and effectively charged neither. State v. Hill, 185 N.C. App. 216, 647 S.E.2d 475, 2007 N.C. App. LEXIS 1712 (2007), rev'd, 362 N.C. 169 , 655 S.E.2d 831, 2008 N.C. LEXIS 24 (2008).

Indictment charging defendant with statutory sexual offense under G.S. 14-27.2 , statutory sexual offense of a person who was 13, 14, or 15 years of age under G.S. 14-27.7 A, taking indecent liberties with a child under G.S. 14-202.1 , and forcible sexual offense under G.S. 14-27.5 that did not list the specific underlying sexual acts was valid, as the jury was instructed on the specific sexual acts that were to serve as the underlying act for each charged offense; when a short form indictment properly alleged the essential elements of the offense, it did not have to allege every matter required to be proved on the trial under G.S. 15-144.2(a), and indictments charging indecent liberties with a child or a sexual offense were valid even when they did not contain a specific allegation regarding which specific sexual act was committed. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Defendant’s indictments for four counts of statutory sexual offenses were valid even though the indictments cited G.S. 14-27.7 A, as the indictments put defendant on notice that defendant was being charged pursuant to G.S. 14-27.4(a)(1) with four counts of first-degree sexual offense against a child who was under the age of 13, where defendant was at least 12 years old and at least four years older than the victim; further, the jury was instructed pursuant to G.S. 14-27.4(a)(1). State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Trial court lacked jurisdiction to require defendant to register as a sex offender and prohibit contact with the victims because the trial court did not have jurisdiction over defendant inasmuch as the indictment charging defendant with the statutory rape “of person 13, 14, or 15 years old” was facially defective inasmuch as it did not include the names of the victims. State v. Shuler, 263 N.C. App. 366, 822 S.E.2d 737, 2018 N.C. App. LEXIS 1251 (2018).

Instructions under This Section Insufficient for Indictment Brought under G.S. 14-27.4 . —

Where the jury is instructed and reaches its verdict on the basis of the elements set out in this section, but defendant was indicted and brought to trial on the basis of the elements set out in G.S. 14-27.4 , the indictment under which defendant was brought to trial could not be considered valid, and any judgment made thereon must be vacated. State v. Bowen, 139 N.C. App. 18, 533 S.E.2d 248, 2000 N.C. App. LEXIS 807 (2000).

The defendant was entitled to the Miranda warnings prior to the date of birth question elicited during booking, and the failure to give those warnings rendered his response inadmissible as evidence where defendant’s age was an essential element of the crime charged, and the investigating officer, knew or should have known her question regarding his date of birth would elicit an incriminating response. State v. Locklear, 138 N.C. App. 549, 531 S.E.2d 853, 2000 N.C. App. LEXIS 626 (2000).

Where two or more offenses are joined for judgment, one offense may properly be aggravated by evidence needed to prove a separate joined offense. In a case where sexual offense by a person in a parental role was not the most serious crime in the consolidated judgment and thus was not the offense from which defendant’s sentence was derived, the aggravator of abusing a position of trust did not apply to the crime of sexual offense by a person in a parental role, but rather properly applied to the most serious offense in each of the two consolidated judgments, the statutory sexual offense of a person aged 13, 14, or 15. State v. Tucker, 357 N.C. 633 , 588 S.E.2d 853, 2003 N.C. LEXIS 1411 (2003).

Continuous Course of Conduct Theory Not Recognized. —

Denial of defendant’s motion to dismiss one of the charges based on the argument that they were in the nature of a “continuous transaction” was proper, because North Carolina does not recognize the “continuous course of conduct” theory. State v. Cortes-Serrano, 195 N.C. App. 644, 673 S.E.2d 756, 2009 N.C. App. LEXIS 259 (2009).

Defendant was entitled to a new trial on the two statutory rape charges, because the trial court’s failure to include “not guilty by reason of unconsciousness” in the final mandate to the jury constituted plain error, as there was a reasonable likelihood that the jury applied the instructions on unconsciousness in a manner that lessened the State’s burden of proof, given the jury’s inconsistent verdicts. Since the evidence of unconsciousness arose out of the State’s evidence, the State had the burden of proving defendant’s consciousness beyond a reasonable doubt. State v. Tyson, 195 N.C. App. 327, 672 S.E.2d 700, 2009 N.C. App. LEXIS 190 (2009).

Trial Court Misapplied Birthday Rule in Improperly Dismissing Charges Against Defendant. —

In a case in which the State appealed the trial court’s grant of a motion to dismiss charges of statutory rape and statutory sexual offense against defendant, the trial court erred in applying the reasoning of the Moore decision used to calculate the age of the victim to the calculation of time in G.S. 14-27.7 A(b); the trial court misapplied the birthday rule. Defendant in the Moore decision was charged with violating G.S. 14-27.7 A(a), while defendant in the present case was charged with violating G.S. 14-27.7A(b). State v. Faulk, 200 N.C. App. 118, 683 S.E.2d 265, 2009 N.C. App. LEXIS 1558 (2009).

Substantially Similar to Prior Conviction. —

In its calculation of his prior record level, the trial court did not err by determining that one of defendant’s prior convictions in Georgia was substantially similar to a Class B1 felony in North Carolina because both sought to protect persons under the age of 16 from engaging in sexual activity with older individuals, both statutes opted to levy greater punishment on older offenders with greater age discrepancies from their victims, and defendant’s indictment revealed he would have been 36 years old when he committed the conduct underlying his Georgia conviction against a person under 16 years of age, and therefore defendant’s conduct would constitute the Class B1 felony offense under this section. State v. Graham, 270 N.C. App. 478, 841 S.E.2d 754, 2020 N.C. App. LEXIS 211 (2020), aff'd, 379 N.C. 75 , 863 S.E.2d 752, 2021- NCSC-125, 2021 N.C. LEXIS 1026 (2021).

Substantially similar to an offense in North Carolina. —

Determination that defendant’s out-of-state conviction may be counted as an elevated felony classification for purposes of sentencing in North Carolina trial court was affirmed because the Court of Appeals majority properly applied the comparative elements test in affirming the trial court’s consideration of defendant’s conviction in the state of Georgia for statutory rape as equivalent to a North Carolina Class B1 felony for the purpose of the calculation of prior record level points in criminal sentencing. State v. Graham, 2021-NCSC-125, 379 N.C. 75 , 863 S.E.2d 752, 2021- NCSC-125, 2021 N.C. LEXIS 1026 (2021).

Evidence Sufficient to Prove Attempt But Not Completed Crime. —

Evidence that defendant demanded that victim perform fellatio, but the victim refused was sufficient to support a conviction for the attempted, but not the completed crime of statutory sexual offense. State v. Sines, 158 N.C. App. 79, 579 S.E.2d 895, 2003 N.C. App. LEXIS 943 , cert. denied, 357 N.C. 468 , 587 S.E.2d 69, 2003 N.C. LEXIS 943 (2003).

Evidence Was Sufficient to Support Conviction. —

Evidence was sufficient to support a conviction for statutory rape, including the element of a required six-year age difference between defendant and the 15-year-old victim, where the victim accurately testified as to both of their birth dates, and a marriage certificate, which was admitted into evidence, set forth both of their ages; the statutory rape occurred before the marriage, and defendant and the pregnant victim proceeded with a divorce before defendant was indicted two months after the date of the marriage. State v. Howard, 158 N.C. App. 226, 580 S.E.2d 725, 2003 N.C. App. LEXIS 1049 (2003).

There was substantial evidence to withstand defendant’s motions to dismiss because the evidence established that the victim, defendant’s biological daughter, was between 13 and 15 years old, an essential element of statutory rape under section G.S. 14-27.7 A(a), during the time she lived with defendant, and defendant engaged in almost daily sexual intercourse with her. There was also sufficient evidence of defendant’s age because it was biologically impossible for defendant to be less than six years older than the victim and to be her father. State v. Wiggins, 161 N.C. App. 583, 589 S.E.2d 402, 2003 N.C. App. LEXIS 2263 (2003).

Sufficient evidence supported convictions for taking indecent liberties with a child under G.S. 14-202.1 , statutory sex offense under G.S. 14-27.7 A(a), and sexual activity by a custodian, G.S. 14-27.7 (a), where the 15-year-old victim, a patient in a behavioral hospital, testified that she had engaged in sexual activity with defendant, a mental health technician at the hospital, and where the victim’s mother and sister also testified that the victim told them about her interactions with defendant, and that they heard firsthand telephone conversations between the victim and defendant regarding specific sexual activity. State v. Evans, 162 N.C. App. 540, 591 S.E.2d 564, 2004 N.C. App. LEXIS 180 (2004).

Evidence that the victim was 15 years old and had not yet turned 16 was sufficient to support defendant’s statutory rape conviction under G.S. 14-27.7 A(a); because the statute did not qualify the age of the person, the minor described in G.S. 14-27.7 A(a) must be either 13, 14, or 15, not more or less than those ages. State v. Moore, 167 N.C. App. 495, 606 S.E.2d 127, 2004 N.C. App. LEXIS 2337 (2004).

Defendant’s conviction for statutory rape was upheld on appeal where the record indicated that one of the victims was 14 years old, defendant was 36 years old, and they were not lawfully married at the time of the incident; further evidence in the case, considered in the light most favorable to the State, tended to show defendant forced the victim to engage in vaginal and anal intercourse, which evidence was based on the victim’s testimony, corroborative testimony by the State’s witnesses, and physical evidence. State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774, 2005 N.C. App. LEXIS 250 (2005).

Evidence was sufficient to support defendant’s conviction for statutory rape, as it showed that he engaged in repeated acts of sexual intercourse with the victim when she was under the age of consent and he was an adult who was dating her mother; indeed, the evidence showed that she gave birth to his baby when she was still a minor. State v. Jones, 172 N.C. App. 308, 616 S.E.2d 15, 2005 N.C. App. LEXIS 1580 (2005).

When taken in the light most favorable to the State, the victim’s testimony that defendant “stuck his fingers in her vagina” while she was 13 years old provided sufficient evidence to support defendant’s conviction for statutory sexual offense of a person 13 years old. State v. Brown, 178 N.C. App. 189, 631 S.E.2d 49, 2006 N.C. App. LEXIS 1311 (2006).

Victim’s statement the victim had sex with defendant and the principal’s corroborating testimony that the victim said the victim had sex with defendant and contracted a sexually transmitted disease was sufficient to support a statutory rape conviction under G.S. 14-27.7 A. State v. Kitchengs, 183 N.C. App. 369, 645 S.E.2d 166, 2007 N.C. App. LEXIS 1165 (2007).

Evidence supported defendant’s conviction for rape, statutory rape, sex offense, statutory sex offense, and sex offense in a parental role as: (1) defendant attacked the 14-year-old victim over a period of hours; (2) defendant’s expert testified that various wounds were inflicted while the victim was alive; (3) defendant raped the victim vaginally and anally while the victim was alive, leaving semen inside both her vagina and anus; (4) evidence from the victim’s lung tissue showed the victim was alive for a substantial period of time after the brain injury was inflicted; and (5) after hitting the victim in the head, defendant walked around thinking about how to cover up the crime, attempted to clean the victim up, and then sexually assaulted her body, all part of the same episode. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

There was substantial evidence to support convictions for incest under G.S. 14-178(a), and two counts of statutory sex offense of a person who was 15 years old in violation of G.S. 14-27.7 A(a), because: (1) the victim testified that defendant was her biological father and identified him in open court, and her birth certificate identified defendant as her father, providing direct evidence of defendant’s paternity; and (2) there was substantial direct and circumstantial evidence that defendant had vaginal intercourse or engaged in a sexual act with his daughter on multiple occasions while she was 15. State v. Ware, 188 N.C. App. 790, 656 S.E.2d 662, 2008 N.C. App. LEXIS 263 (2008).

Evidence of slight anal penetration by defendant was sufficient to defeat defendant’s motion to dismiss one count each of the statutory sex offense and sexual activity by substitute parent charges. State v. Sprouse, 217 N.C. App. 230, 719 S.E.2d 234, 2011 N.C. App. LEXIS 2434 (2011).

Evidence Sufficient to Withstand Motion to Dismiss. —

Evidence that the victim was defendant’s daughter and that they were not married, and that defendant pushed the victim down on his bed and said something sexual, but stopped after the victim told defendant that she had her period, was sufficient to withstand a motion to dismiss. State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267, 2006 N.C. App. LEXIS 2251 (2006).

Denial of motion to dismiss statutory sex offense charge was proper where the State presented sufficient evidence of each element which tended to show defendant committed sexual assaults upon the victim, the victim was 13 years old at the time in question, and defendant was at least six years older than the victim, to whom defendant was not lawfully married. State v. Wallace, 179 N.C. App. 710, 635 S.E.2d 455, 2006 N.C. App. LEXIS 2166 (2006).

There was sufficient evidence of defendant’s overt actions beyond mere preparation in defendant’s attempt to have vaginal intercourse with his daughter for purposes of an attempted statutory rape of a person who is 13, 14, or 15 years old under G.S. 14-27.7 A(a) and an attempted incest charge under G.S. 14-178(a)(ii) to go to the jury; defendant’s repeated asking of his daughter to have intercourse with him, when combined with his comments that he wanted to be “inside her” and be “her first,” and the repeated sexual acts, constituted sufficient evidence of overt sexual behavior from which it could be inferred that defendant intended to engage in vaginal intercourse with his victim. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Denial of defendant’s motion to dismiss a statutory rape charge was appropriate because reasonable jurors could have concluded that the State of North Carolina presented sufficient evidence of sexual penetration by the minor victim’s testimony that defendant was able to touch the victim between the victim’s labia before giving up after the victim repeatedly pushed defendant away. State v. Corbett, 264 N.C. App. 93, 824 S.E.2d 875, 2019 N.C. App. LEXIS 115 (2019).

Victim’s testimony alleging vaginal intercourse in 2016 between her and defendant—when the victim was 14 and defendant was 19 years her elder—was sufficient to survive a motion to dismiss the charge of statutory rape under N.C. Gen. Stat. § 14-27.25(a). State v. Darr, 2022-NCCOA-296, 2022 N.C. App. LEXIS 318 (May 3, 2022).

Evidence Sufficient to Allow Charges to Go to Jury. —

Testimony of the victim, the victim’s mother, and defendant regarding the ages of defendant and the victim at time of the alleged commission of statutory rape was sufficient to allow the charges to go to the jury, the State was not required to produce birth certificates as evidence of the ages of the victim and defendant. State v. Cortes-Serrano, 195 N.C. App. 644, 673 S.E.2d 756, 2009 N.C. App. LEXIS 259 (2009).

As the victim testified that defendant had vaginal intercourse with her when she was 13, 14, and 15 years of age, (3) defendant w, and defendant’s testimony established that he was more than six years older than the victim and was not lawfully married to her, defendant’s motion to dismiss statutory rape charges was properly denied. State v. Carter, 198 N.C. App. 297, 679 S.E.2d 457, 2009 N.C. App. LEXIS 1174 (2009).

Defendant Not Entitled to Jury Instruction on Mistake of Fact. —

Defendant’s request for a jury instruction on mistake of fact as to the victim’s age was properly denied because statutory rape is a strict liability crime to which mistake of fact is no defense. State v. Browning, 177 N.C. App. 487, 629 S.E.2d 299, 2006 N.C. App. LEXIS 1079 (2006).

§ 14-27.26. First-degree forcible sexual offense.

  1. A person is guilty of a first degree forcible sexual offense if the person engages in a sexual act with another person by force and against the will of the other person, and does any of the following:
    1. Uses, threatens to use, or displays a dangerous or deadly weapon or an article which the other person reasonably believes to be a dangerous or deadly weapon.
    2. Inflicts serious personal injury upon the victim or another person.
    3. The person commits the offense aided and abetted by one or more other persons.
  2. Any person who commits an offense defined in this section is guilty of a Class B1 felony.

History. 1979, c. 682, s. 1; 1979, 2nd Sess., c. 1316, s. 6; 1981, c. 63; c. 106, ss. 3, 4; c. 179, s. 14; 1983, c. 175, ss. 5, 10; c. 720, s. 4; 1994, Ex. Sess., c. 22, s. 3; 2015-181, s. 8(a), (b); 2017-30, s. 2.

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

As to essentials of bill of indictment for sexual offense, see G.S. 15-144.2 .

As to venue of trial of sex offenses where victim was transported, see G.S. 15A-136 .

As to office of coordinator of services for victims of sexual assault, see G.S. 143B-394.1 et seq.

Editor’s Note.

This section was formerly codified as G.S. 14-27.4 . It was recodified as G.S. 14-27.26 by Session Laws 2015-181, s. 8(a), effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 8(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2017-30, s. 3, made the substitution of “Uses, threatens to use, or displays” for “Employs or displays” at the beginning of subdivision (a)(1), by Session Laws 2017-30, s. 2, effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2015-181, s. 8(b), effective December 1, 2015, inserted “forcible” in the section heading; in subsection (a), in the introductory paragraph, substituted “first-degree forcible sexual offense” for “sexual offense in the first-degree,” added “with another person by force and against the will of the other person” which had been included in former subdivision (2), and added “and does any of the following” at the end of the paragraph, deleted former subdivision (1), which read: “With a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older that the victim,” redesignated former subdivision (2)a, b and c as subdivisions (1), (2) and (3), respectively, and made related stylistic changes. For applicability, see editor’s note.

Session Laws 2017-30, s. 2, effective December 1, 2017, substituted “Uses, threatens to use, or displays” for “Employs or displays” at the beginning of subdivision (a)(1).

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note that addresses the effect of a recent United States Supreme Court decision on sodomy laws and the manner in which society may shape its characterization of Acquired Immune Deficiency Syndrome (AIDS) and homosexuality, see 66 N.C.L. Rev. 226 (1987).

For comment, “The Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

CASE NOTES

Analysis

I.General Consideration

Constitutionality. —

This statute sufficiently appraises defendants of prohibited conduct and is not void for vagueness. State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42, 1998 N.C. App. LEXIS 1157 (1998).

Effect of G.S. 14-27.7 . —

Argument that an indictment under this section was subject to dismissal on grounds that the section had been partially repealed by G.S. 14-27.7 was without merit, since the two statutes were enacted as parts of the same legislative act, Session Laws 1979, c. 682, and an intent to simultaneously enact and repeal a law could not be attributed to the General Assembly. State v. Nations, 319 N.C. 318 , 354 S.E.2d 510, 1987 N.C. LEXIS 1934 (1987).

Inapplicability of Committed Youthful Offender Statute. —

Article 3B of Chapter 148 does not apply to a conviction or plea of guilty of a sexual offense in the first degree, for which the punishment is mandatory life imprisonment. State v. Browning, 321 N.C. 535 , 364 S.E.2d 376, 1988 N.C. LEXIS 110 (1988); State v. Rhinehart, 322 N.C. 53 , 366 S.E.2d 429, 1988 N.C. LEXIS 127 (1988).

Indians. —

This section does not apply where the alleged acts were those of one Indian against another Indian within Indian country. United States v. Welch, 822 F.2d 460, 1987 U.S. App. LEXIS 8478 (4th Cir. 1987).

Mandatory Life Imprisonment Not Cruel and Unusual. —

The imposition of a mandatory sentence of life imprisonment for first-degree sexual offense is not so disproportionate as to constitute a violation of U.S. Const., Amend. VIII. State v. Higginbottom, 312 N.C. 760 , 324 S.E.2d 834, 1985 N.C. LEXIS 1498 (1985).

The mandatory life sentence for first-degree sexual offense is constitutional. State v. Cooke, 318 N.C. 674 , 351 S.E.2d 290, 1987 N.C. LEXIS 1769 (1987).

Imposition of sentences of life imprisonment for first degree rape and first degree sexual offense does not violate the prohibition against cruel and unusual punishments. State v. Spaugh, 321 N.C. 550 , 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

The mandatory life sentence for first-degree sexual offense does not constitute cruel and unusual punishment. State v. Joyce, 97 N.C. App. 464, 389 S.E.2d 136, 1990 N.C. App. LEXIS 164 (1990), cert. denied, 339 N.C. 619 , 454 S.E.2d 263, 1995 N.C. LEXIS 38 (1995); State v. Young, 103 N.C. App. 415, 406 S.E.2d 3, 1991 N.C. App. LEXIS 797 (1991).

A life sentence for first-degree sexual offense does not constitute cruel and unusual punishment. State v. Green, 124 N.C. App. 269, 477 S.E.2d 182, 1996 N.C. App. LEXIS 1055 (1996), aff'd, 348 N.C. 588 , 502 S.E.2d 819, 1998 N.C. LEXIS 364 (1998).

First and Second Degree Offenses Distinguished. —

A second-degree offense differs from a first-degree offense only in the absence of the alternative elements of aiding and abetting, use or display of a deadly weapon, or infliction of serious bodily injury. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Where the only theory that would sustain defendant’s conviction of a sexual offense was aiding and abetting, defendant could only be tried for a first-degree sexual offense and the court’s instruction on second-degree sexual offense was error, since the offense is always first degree when aiding and abetting is proven. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Taking Indecent Liberties Not Lesser Included Offense. —

In a prosecution of defendant under subsection (a) of this section for engaging in a sexual act with children under 12 (now under 13 years of age), the trial court did not err in failing to instruct on taking indecent liberties with children in violation of G.S. 14-202.1 , since taking indecent liberties with children is not a lesser included offense of the crime proscribed by subsection (a). State v. Williams, 303 N.C. 507 , 279 S.E.2d 592, 1981 N.C. LEXIS 1195 (1981).

The definitional elements of first-degree sex offense and indecent liberties are different; therefore, defendant’s conviction of first-degree sex offense and indecent liberties did not contravene his constitutional protection against double jeopardy. State v. Manley, 95 N.C. App. 213, 381 S.E.2d 900, 1989 N.C. App. LEXIS 662 (1989).

The indictments against the defendant for first-degree sexual offense and for indecent liberties with a child were upheld in spite of his allegations that they were defective as a matter of law in not setting out each element of the offenses. State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794, 2000 N.C. App. LEXIS 1301 (2000).

Crime against nature is not a lesser included offense of first or second degree sexual offense. State v. Warren, 309 N.C. 224 , 306 S.E.2d 446, 1983 N.C. LEXIS 1387 (1983). See also, State v. Barrett, 307 N.C. 126 , 302 S.E.2d 632, 1982 N.C. LEXIS 1835 (1982); State v. Jordan, 321 N.C. 714 , 365 S.E.2d 617, 1988 N.C. LEXIS 233 (1988).

Assault on Female Not Lesser Included Offense. —

To convict for first-degree sexual offense, it need not be shown that the victim is a female, that the defendant is a male, or that the defendant is at least 18 years of age. Therefore, the crime of assault on a female has at least three elements not included in the crime of first-degree sexual offense and cannot be a lesser included offense of first-degree sexual offense. State v. Bagley, 321 N.C. 201 , 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988).

Defendant may be convicted of kidnapping and of sexual assault where restraint or asportation of victim is separate, complete act, independent of and apart from sexual assault. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Separate Crimes Arising out of Same Events. —

Defendants’ convictions of both first degree kidnapping and rape against one victim and of first-degree kidnapping and both first degree rape and first-degree sex offense against the other could not all stand, even though the combination of convictions, because of the manner in which they were consolidated for judgment, resulted in no additional punishment attributable to any of the kidnapping cases, where it could not be said that the jury’s verdict of first-degree kidnapping was based upon a sexual assault other than the ones forming the basis for the other convictions. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

Punishment for Both First-Degree Kidnapping and Sexual Assault Held Error. —

The guarantee against double jeopardy under U.S. Const., Amend. V protects against multiple punishments for the same offense. Defendant may not be punished for both first-degree kidnapping and sexual assault, where sexual assault is used to elevate kidnapping to first degree. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Where defendant was convicted and sentenced for sexual assault and first-degree kidnapping predicated on one sexual assault, trial court was required to arrest judgment either on conviction of sexual assault or on conviction of first-degree kidnapping. Defendant could be resentenced for second-degree kidnapping, if judgment on first-degree kidnapping was arrested. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Separate Sentences for Offenses Based on Same Acts. —

Imposition of sentences for first-degree sexual offenses as well as offenses of taking of indecent liberties with a child, based on the same acts, did not constitute double jeopardy, as the elements of the two crimes are different. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Defendant’s right to a unanimous jury verdict was jeopardized by the trial court’s failure to ensure that each juror had in mind the same instances of abuse when voting to convict defendant. State v. Bates, 172 N.C. App. 27, 616 S.E.2d 280, 2005 N.C. App. LEXIS 1585 (2005).

II.Elements of Offense

Legislative Intent to Distinguish Offenses. —

The intent of the legislature when it employed the term “vaginal intercourse” in former G.S. 14-21.1 was not to change the traditional elements of rape but to distinguish that offense from other sexual offenses now included within this section. State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

State’s Burden of Proof. —

To convict a defendant of a first-degree sexual offense with a child of 12 years or less (now under the age of 13 years), the State need only prove that (1) the defendant engaged in a “sexual act,” (2) the victim was at the time of the act 12 years old or less, and (3) the defendant was at the time four or more years older than the victim. State v. Ludlum, 303 N.C. 666 , 281 S.E.2d 159, 1981 N.C. LEXIS 1199 (1981).

Failure to Allege Age Deemed Fatal. —

Four petitions, brought pursuant to this section, failed to state the respondent’s alleged misconduct with particularity, as they did not contain the crucial allegations of the age of the victim and the respondent and, therefore, were dismissed as fatally defective. In re Jones, 135 N.C. App. 400, 520 S.E.2d 787, 1999 N.C. App. LEXIS 1158 (1999).

Sexual Purpose. —

Neither the first-degree sexual offense statute nor the crime against nature statute contains a sexual purpose requirement; because the North Carolina General Assembly included this requirement in the indecent liberties statute, but omitted it from these other sex offense statutes, it was concluded that the omission was intentional. Therefore, an argument by appellant, a juvenile, that the State failed to present evidence of “sexual purpose” with respect to the first-degree sexual offense and crime against nature charges was meritless. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

The term “sexual act,” as used in this section, means cunnilingus, fellatio, analingus, or anal intercourse. It also means the penetration, however slight, by any object into the genital or anal opening of another person’s body. State v. DeLeonardo, 315 N.C. 762 , 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

Penetration. —

Where the evidence showed that defendant ordered the victim to drop her pants and underwear at gunpoint and asked her to spread open her labia so he could inspect her vagina and defendant then used the barrel of his gun to separate her labia and the victim testified that she felt the gun up against her private area right where her tampon would be entered, such evidence was sufficient to support a finding that a penetration occurred under G.S. 14-27.1(4) to support defendant’s conviction for first degree sexual offense, despite defendant changing his mind about pursuing any further contact with the victim upon discovering the tampon. State v. Bellamy, 172 N.C. App. 649, 617 S.E.2d 81, 2005 N.C. App. LEXIS 1793 (2005).

When considered with the evidence that a victim suffered extensive damage to her outer genital and rectal areas, the State’s evidence gave rise to a reasonable inference that the victim’s colon injury was the result of the penetration of an object into her rectum, as defined in G.S. 14-27.4(a)(2). Therefore, the State introduced substantial evidence on the charge of first-degree sexual offense, and the trial court did not err in denying defendant’s motion to dismiss. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701, 2008 N.C. App. LEXIS 431 (2008).

Act of forcing a victim to self-penetrate constitutes engaging in a sexual act with another person and against the will of the other person. State v. Green, 229 N.C. App. 121, 746 S.E.2d 457, 2013 N.C. App. LEXIS 891 (2013).

Penetration was a required element of the offense of crime against nature, but it was not a required element of first-degree sexual offense; therefore, adjudications of delinquency could not have been upheld for crime against nature offenses where there was no evidence of penetration. The victim stated that he was asked to “lick” the penis of appellant, a juvenile; an inference of penetration could not have been drawn because it conflicted with the victim’s direct testimony. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

Fellatio is any touching of the male sexual organ by the lips, tongue, or mouth of another person. State v. Johnson, 105 N.C. App. 390, 413 S.E.2d 562, 1992 N.C. App. LEXIS 226 (1992).

Lack of Consent Essential. —

Both a first and second-degree sexual offense, insofar as they may be committed against an adult not physically or mentally handicapped, have as an essential element the lack of the victim’s consent because they must be committed “by force and against the will” of the victim. State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982).

Although the victim was a prostitute and initially sought a sexual encounter for payment, the victim’s fear of defendant was specific to the events leading to defendant’s sexual assaults on and murder of her, so that a jury could reasonably find that there was substantial evidence that the victim withdrew any prior consent to the sexual acts. State v. Penland, 343 N.C. 634 , 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Crime Actively Encouraged by Victim. —

The defendant was not guilty of a first-degree sexual offense where the victim actively encouraged and ultimately induced the defendant to commit the crime of fellatio on him for the purpose of documenting certain facts relative to their relationship and not for the purpose of having the defendant arrested for his acts. State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982).

Use of Force. —

Phrase “by force and against her will,” (now “by force and against the will of the other person”) used in this section, G.S. 14-27.2 , 14-27.3, and 14-27.5, means the same as it did at common law when it was used to describe some of the elements of rape. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981).

Actual Physical Force Not Required. —

Under the sexual offense statutes, actual physical force is not required to satisfy the statutory requirement that the sexual act be committed “by force and against the will” of the victim. Fear of serious bodily harm reasonably engendered by threats or other actions of a defendant and which causes the victim to consent to the sexual act takes the place of force and negates the consent. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981).

Nor is medical evidence of penetration, such as bruising or tearing, required to support a conviction of first-degree sexual offense. State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Force and Lack of Consent Are Implied when Victim Is Incapacitated. —

It makes no difference in the case of a sleeping or similarly incapacitated victim whether the State proceeds on the theory of a sexual act committed by force and against the victim’s will or whether it alleges an incapacitated victim; force and lack of consent are implied in law. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

The phrase “by force and against the will” used in the first and second-degree rape statutes and the first and second-degree sexual offense statutes means the same as it did at common law when it was used to describe some of the elements of rape. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Whether Sexual Act Committed While Victim Was Alive or Dead Was Irrelevant. —

Where the sexual act was committed during a continuous transaction that began when the victim was alive, the evidence was sufficient to support defendant’s conviction for first-degree sexual offense; the precise timing of the sexual act was irrelevant if it occurred during a continuous transaction. All of the evidence clearly suggested that the sexual offense and the death of the victim were so connected as to form a continuous chain of events. State v. Thomas, 329 N.C. 423 , 407 S.E.2d 141, 1991 N.C. LEXIS 530 (1991).

Intent to commit the crime of sexual offense is inferred from the commission of the act. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Intoxication Not a Defense. —

Since intent is not an essential element of the crime of first-degree sexual offense, intoxication is not a defense of that crime. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Dangerous or Deadly Weapon. —

Trial court erred by denying defendant’s motions to dismiss the charges of first-degree rape and first-degree sexual offense because the State of North Carolina failed to offer any evidence tending to show that defendant employed or displayed a dangerous or deadly weapon or an article which the victim reasonably believed was a dangerous or deadly weapon, as required by G.S. 14-27.2(a)(2)(a) and G.S. 14-27.4(a)(2)(a). However, the case was remanded for resentencing because the jury’s convictions necessarily included all the elements of second-degree rape and second-degree sexual offense under G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1). State v. Adams, 187 N.C. App. 676, 654 S.E.2d 711, 2007 N.C. App. LEXIS 2572 (2007).

What Is a Dangerous or Deadly Weapon. —

In order to be characterized as a dangerous or deadly weapon, an instrumentality need not have actually inflicted serious injury. A dangerous or deadly weapon is any article, instrument or substance which is likely to produce death or great bodily injury. State v. Young, 317 N.C. 396 , 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Deadly weapon does not have to be one that kills. State v. Workman, 309 N.C. 594 , 308 S.E.2d 264, 1983 N.C. LEXIS 1435 (1983).

Where there is a question as to a weapon’s deadly or dangerous nature, it is properly submitted to the jury. State v. Workman, 309 N.C. 594 , 308 S.E.2d 264, 1983 N.C. LEXIS 1435 (1983).

Charge That Fake Gun May Be Deadly or Dangerous Weapon. —

Where the indictment charges violation of this section with the use of deadly weapons, “to wit: a rifle, a shotgun, and a pistol,” a jury instruction that the deadly weapon element of this section would be met if the victim reasonably believed a fake gun to be a dangerous or deadly weapon does not change the theory alleged in the indictment. State v. McKinnon, 306 N.C. 288 , 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Deadly Weapon Need Not Be Possessed at Precise Moment of Penetration. —

In a prosecution for first-degree sexual offense, where a knife was employed in an effort to force the victim to give in to defendant’s demands, it was of no consequence that defendant was not in possession of the deadly weapon at the precise moment that penetration occurred. State v. Whittington, 318 N.C. 114 , 347 S.E.2d 403, 1986 N.C. LEXIS 2564 (1986).

Serious Personal Injury. —

The term “inflicts serious injury” means physical or bodily injury resulting from an assault with a deadly weapon with intent to kill. The injury must be serious but it must fall short of causing death. Further definition seems neither wise nor desirable. Whether such serious injury has been inflicted must be determined according to the particular facts of each case. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

The element of infliction of serious personal injury upon the victim or another person in the crimes of first-degree sexual offense and first-degree rape is sufficiently connected in time to the sexual acts when there is a series of incidents forming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury. Such incidents include injury inflicted on the victim to overcome resistance or to obtain submission, injury inflicted upon the victim or another in an attempt to commit the crimes or in furtherance of the crimes of rape or sexual offense, or injury inflicted upon the victim or another for the purpose of concealing the crimes or to aid in the assailant’s escape. State v. Blackstock, 314 N.C. 232 , 333 S.E.2d 245, 1985 N.C. LEXIS 1784 (1985).

It was no error to deny defendant’s motion to dismiss a charge of first-degree sexual offense for insufficient evidence because the State presented substantial evidence of the victim’s serious personal injury. State v. Harding, 258 N.C. App. 306, 813 S.E.2d 254, 2018 N.C. App. LEXIS 245 , writ denied, 371 N.C. 450 , 817 S.E.2d 205, 2018 N.C. LEXIS 669 (2018).

Trial court did not err by instructing the jury that it could find the victim suffered a “serious personal injury” in the form of a mental injury because the State presented substantial evidence that defendant inflicted bodily harm upon the victim as he attempted to overcome her resistance; the victim sustained extensive bruises and abrasions to most of the left side of her body, and it was for the jury to determine whether the victim sustained a serious personal injury. State v. Gentle, 260 N.C. App. 269, 817 S.E.2d 833, 2018 N.C. App. LEXIS 641 (2018), aff'd, 372 N.C. 47 , 822 S.E.2d 616, 2019 N.C. LEXIS 51 (2019).

Even assuming that there was no evidence to support the trial court’s instruction on mental injury, defendant failed to meet his burden of showing that the alleged error had any probable impact on the jury’s verdict because the jurors unanimously affirmed their verdict after defense counsel requested that they be individually polled; during deliberations, the jury requested to review pictures of the victim’s personal injuries. State v. Gentle, 260 N.C. App. 269, 817 S.E.2d 833, 2018 N.C. App. LEXIS 641 (2018), aff'd, 372 N.C. 47 , 822 S.E.2d 616, 2019 N.C. LEXIS 51 (2019).

Not Limited to Non-Fatal Injuries. —

The statutes governing first-degree rape and first-degree sexual offense do not limit the injuries underlying the charge to those not resulting in death. State v. Richmond, 347 N.C. 412 , 495 S.E.2d 677, 1998 N.C. LEXIS 13 , cert. denied, 525 U.S. 843, 119 S. Ct. 110, 142 L. Ed. 2d 88, 1998 U.S. LEXIS 5225 (1998).

Mental Injury May Constitute Serious Personal Injury. —

Proof of the element of infliction of “serious personal injury” as required by G.S. 14-27.2(a)(2)b and subdivision (a)(2)b of this section may be met by the showing of mental injury as well as bodily injury. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

But Must Be Greater Than That Present in Every Sexual Offense. —

The legislature intended that ordinarily the mental injury inflicted must be more than the res gestae results present in every forcible rape and sexual offense. In order to support a jury finding of serious personal injury because of injury to the mind or nervous system, the State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Question Must Be Decided on Facts of Cases. —

Obviously, the question of whether there was such mental injury as to result in “serious personal injury” must be decided upon the facts of each case. It is impossible to enunciate a “bright line” rule as to when the acts of an accused cause mental upset which could support a finding of “serious personal injury.” State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

In determining whether “serious personal injury” has been inflicted as the phrase is used in the definitions of first-degree rape and first-degree sexual offense, the court must consider the particular facts of each case. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Evidence of Serious Personal Injury Held Sufficient. —

Where none of the victim’s serious external injuries were the cause of the victim’s death, and all of the external injuries were inflicted upon her immediately prior to and during a sexual assault by the defendant, the trial court properly denied defendant’s motion to dismiss the charge of first-degree sexual offense for lack of substantial evidence of “serious personal injury.” State v. Thomas, 332 N.C. 544 , 423 S.E.2d 75, 1992 N.C. LEXIS 588 (1992).

Legislative Intent as to Punishment of Aiders and Abettors. —

It is evident that the legislature, by its enactment of subdivision (a)(2)c of this section, chose to include in the more serious first-degree categories those sexual offenses which involved aiders and abettors and to subject to a harsher penalty those who participated in gang assaults, regardless of the actual role of the participant. In so doing, the legislature acknowledged the increased severity of rapes and other sexual offenses committed by persons acting in concert. State v. Polk, 309 N.C. 559 , 308 S.E.2d 296, 1983 N.C. LEXIS 1443 (1983).

An aider and abettor is one who advises, counsels, procures, or encourages another to commit a crime. State v. Bell, 311 N.C. 131 , 316 S.E.2d 611, 1984 N.C. LEXIS 1723 (1984).

To render one who does not actually participate in the commission of a crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator of the crime or by his conduct made it known to such perpetrator that he was standing by to lend assistance when and if it should become necessary. State v. Bell, 311 N.C. 131 , 316 S.E.2d 611, 1984 N.C. LEXIS 1723 (1984).

Aider and Abettor Is as Guilty as Principal Offender. —

Under the statutory scheme, a person who commits a sexual act with another person by force and against the will of the other person, and who also is aided and abetted by one or more persons is guilty of a first-degree sexual offense. An aider and abettor is as guilty as the principal offender, and thus an aider and abettor of any sexual offense ipso facto becomes guilty of a first-degree offense. State v. Polk, 309 N.C. 559 , 308 S.E.2d 296, 1983 N.C. LEXIS 1443 (1983).

Under this section, an aider and abettor of a sexual offense is guilty of a first-degree sexual offense or nothing at all. State v. Polk, 309 N.C. 559 , 308 S.E.2d 296, 1983 N.C. LEXIS 1443 (1983).

The presence of defendant’s nephews inside and outside the truck while defendant engaged in sexual acts with the victim could reasonably have been regarded as encouragement to defendant and constituted sufficient evidence that they and defendant shared the “community of unlawful purpose” necessary for aiding and abetting. State v. Penland, 343 N.C. 634 , 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Conviction for Aiding and Abetting Is Not Double Jeopardy. —

One who was convicted of first-degree sexual offense by reason of his aiding and abetting a first-degree sexual offense committed by two other persons has been convicted of only one offense. He was not subjected to multiple convictions or to enhanced punishment by an improper use of the same element twice. Since defendant’s acts of assistance were properly used under the statute to elevate the charges against his codefendants to first-degree offenses in the first instance, defendant’s acts of aiding and abetting were used against him only once, that is, to find him guilty of the crime of first-degree sexual offense by reason of aiding and abetting. State v. Polk, 309 N.C. 559 , 308 S.E.2d 296, 1983 N.C. LEXIS 1443 (1983).

Second-Degree Sexual Offense Held Not Lesser Included Offense. —

In order for an offense to be submitted as a lesser included offense, not only must there be evidence of all elements of the offense, but all the elements of the offense to be submitted must be contained in the greater offense, and thus as a second-degree sexual offense has as an element that the sexual act must be committed “by force and against the will of the other person,” or against a person “who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know” of the victim’s deficiency, and neither of these alternative elements was an element of the first-degree sexual offense with which the defendant was charged, it was not error for the court to refuse to submit second-degree sexual offense as a lesser included charge. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Submission of Lesser Offenses Not Proper. —

Where no evidence was offered which suggested that defendant did not display knife prior to both offenses, the evidence would not have justified submission either of second-degree sexual offense or attempted second-degree rape. State v. Kuplen, 316 N.C. 387 , 343 S.E.2d 793, 1986 N.C. LEXIS 2227 (1986).

Charging a defendant with a separate count of first-degree sexual offense for each alternative sexual act performed in a single transaction would result in a multiplicitous indictment. State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428, 1999 N.C. App. LEXIS 192 (1999).

Sexual offense indictments were fatally defective because they cited one statute, but defendant was tried, convicted, and sentenced under another statute, and the averments were insufficient to satisfy all of the elements contained in either statute; while the indictments (1) alleged that each victim was a child under age 13, (2) named each child, and (3) averred that defendant “did engage in a sex act” with each, under the very narrow circumstances presented, the use of “short-form” language authorized under G.S. 15-144.2(b) was not sufficient to cure the fatal defects. State v. Miller, 159 N.C. App. 608, 583 S.E.2d 620, 2003 N.C. App. LEXIS 1538 (2003), aff'd, 358 N.C. 133 , 591 S.E.2d 520, 2004 N.C. LEXIS 14 (2004).

Victim’s Testimony of Discrete Instances Sufficient. —

Denial of defendant’s motion to dismiss after he was indicted on multiple sexual offenses with a child under G.S. 14-27.4(a)(1), G.S. 14-27.5(a)(1), and G.S. 14-202.1(a) was proper because the victim clearly described discrete instances of different types of sexual acts perpetrated upon him by defendant over a long period of time. That evidence was sufficient to withstand the motion to dismiss. State v. Davis, 214 N.C. App. 175, 715 S.E.2d 189, 2011 N.C. App. LEXIS 1640 (2011).

Sufficiency of Evidence. —

In a case in which the defendant and an accomplice raped a woman while the accomplice threatened the victim with a gun, remand was necessary as to charges of first degree rape and first degree sexual offense by anal intercourse because (1) defendant sufficiently preserved the issue for appellate review, and (2) the evidence was insufficient to permit a reasonable jury to convict defendant of the first degree offenses for which no acting in concert instruction was given since the record contained no evidence showing defendant’s personal use or display of a dangerous weapon. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560, 2007 N.C. App. LEXIS 2574 (2007), rev'd in part, 362 N.C. 340 , 663 S.E.2d 311, 2008 N.C. LEXIS 490 (2008).

Evidence, including testimony from operating physician in the emergency room that a laceration to a victim’s vagina was likely caused by the insertion of an object, possibly a fist, but not a penis, was sufficient to convict defendant of first degree sexual assault under G.S. 14.27.4. State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412, 2009 N.C. App. LEXIS 2214 (2009).

Because defendant molested the victim, his granddaughter, for many years prior to having vaginal intercourse with her beginning around age 14, the jury could infer that defendant continued his additional acts of touching and other sexual acts. Therefore the evidence was sufficient to convict defendant of statutory sexual offense under G.S. 14-27.4 and indecent liberties in violation of G.S. 202.1(a), on top of the statutory rape charges under G.S. 14-27.7 A(a). State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1, 2011 N.C. App. LEXIS 1740 (2011).

Defendant’s motion to dismiss charges of first- degree statutory sexual offense was properly denied, because defendant’s confession was supported by substantial independent evidence tending to establish its trustworthiness, including facts tending to show defendant had the opportunity to commit the crime and there was strong corroboration of the essential facts and circumstances embraced in defendant’s confession. Although the victim did not testify to fellatio during trial she did, prior to trial, inform two others that defendant made her perform fellatio. State v. Sweat, 216 N.C. App. 321, 718 S.E.2d 655, 2011 N.C. App. LEXIS 2235 (2011), aff'd in part and rev'd in part, 366 N.C. 79 , 727 S.E.2d 691, 2012 N.C. LEXIS 416 (2012).

Evidence related to anal intercourse, from the victim’s journal entry and what statements she made to others, indicated that the sexual abuse by defendant began in 2001, and while the State purported to use the evidence to corroborate the victim’s testimony, it could not use the testimony for substantive purposes; although the State provided evidence of vaginal intercourse, such conduct was sufficient to support defendant’s first-degree rape conviction, not a first-degree sex offense, and thus State failed to provide substantial evidence of a first-degree sex offense in 2001. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Victim’s in-court testimony showed that in 2004 and 2005, defendant engaged in vaginal intercourse with her on numerous occasions, and such conduct was sufficient evidence of first-degree rape; although her journal entry and other witness testimony about statements she made indicated that defendant committed a sexual act through anal intercourse, there is no substantive evidence that during this time period, defendant committed a sexual act, and the State failed to provide substantial substantive evidence of a sexual act for the first-degree sex offense charges. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

III.Practice and Procedure

Sufficiency of Indictment. —

Section 15-144.2(a) authorizes, for sexual offense, an abbreviated form of indictment which omits allegations of the particular elements that distinguish first-degree and second-degree sexual offense. State v. Berkley, 56 N.C. App. 163, 287 S.E.2d 445, 1982 N.C. App. LEXIS 2358 (1982).

While it is essential that the State prove a “sexual act” as defined by G.S. 14-27.1(4) in order to convict a defendant under this section, an indictment which is drafted pursuant to the provisions of G.S. 15-144.2(b) without specifying which “sexual act” was committed is sufficient to charge the crime of the first-degree sexual offense and to inform a defendant of such accusation. If a defendant wishes additional information in the nature of the specific “sexual act” with which he stands charged, he may move for a bill of particulars. State v. Edwards, 305 N.C. 378 , 289 S.E.2d 360, 1982 N.C. LEXIS 1274 (1982).

Indictments were sufficiently specific under this subsection, where indictments charging sexual offenses with a minor quoted the language of the statute, even though they did not describe the nature of the sex acts. State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42, 1998 N.C. App. LEXIS 1157 (1998).

While defendant abandoned error as to one of the six challenged indictments filed against him, each alleging charges of first-degree sexual offense, the trial court erred in failing to dismiss the remaining five upon defendant’s motion as fatally defective, given that they erroneously charged two similar but distinct crimes and effectively charged neither. State v. Hill, 185 N.C. App. 216, 647 S.E.2d 475, 2007 N.C. App. LEXIS 1712 (2007), rev'd, 362 N.C. 169 , 655 S.E.2d 831, 2008 N.C. LEXIS 24 (2008).

First-degree sexual offense indictments contained identical language and lacked specificity as to particular conduct; the State’s theory on appeal would require the imputing of conduct in 2006 to other years, which would result in punishing defendant more than once for the same conduct in violation. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Sufficient evidence supported defendant’s conviction for two counts of first-degree sexual offense with a child and one count of incest because there was no possibility that defendant was confused regarding the identity of the victim. The use of “[MXX],” together with the date of birth, in the indictments provided defendant with sufficient notice to prepare his defense and protect himself against future prosecutions for the same crimes. State v. Perkins, 2022- NCCOA-38, 2022 N.C. App. LEXIS 36 (N.C. Ct. App. Jan. 18, 2022).

Petition Sufficient in Juvenile Case. —

Petitions charging appellant, a juvenile, with first-degree sexual offense and crimes against nature were sufficient where they stated that appellant engaged in a sexual act with a child under the age of 13 and that appellant committed the infamous crime against nature with the victim; moreover, the petitions stated that the victim was 7 and that he performed fellatio on appellant. The State did not need to identify the particular sex acts involved or describe the manner in which they were performed, and appellant did not have to be the one performing the sexual act for either of these offenses. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

Consolidation of Offenses Occurring on Different Dates. —

Consolidation of two counts of first-degree sexual offense and two counts of taking indecent liberties with a child, which allegedly occurred one week apart did not constitute error. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Indictments with Dates Different from Those of Arrest Warrants Held Not Prejudicial. —

Trial court committed no error, plain or otherwise, with respect to defendant not having been served with bills of indictment or with respect to the State offering evidence that the offenses occurred on dates different from those alleged in arrest warrants; where defendant was represented by counsel of record on the date of the return of the true bills of indictment, where he and his counsel waived formal arraignment, at which they would have been informed of the allegations contained in the bills of indictment, where defendant presented evidence that he was never alone with the victim during any of the times during which the State’s evidence showed the offenses occurred, and where he did not rely solely upon alibi but also presented evidence through his own testimony and the testimony of others directly contradicting the victim’s account of the incidents. State v. Hutchings, 139 N.C. App. 184, 533 S.E.2d 258, 2000 N.C. App. LEXIS 811 (2000).

Alternate Theories Properly Considered. —

Trial court properly allowed the jury to review the evidence of defendant’s commission of rape and sexual offense under both a theory of statutory rape/sexual offense and forcible rape/sexual offense, however upon the jury’s verdicts of guilty under both theories, the judgment had to be arrested on one count of first-degree rape and on one count of first-degree sexual offense; separate convictions for these offenses, even though consolidated for a single judgment, had potentially severe adverse collateral consequences. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Indictment with Incorrect Statutory Cite Held Valid. —

Defendant’s indictments for four counts of statutory sexual offenses were valid even though the indictments cited G.S. 14-27.7 A, as the indictments put defendant on notice that defendant was being charged pursuant to G.S. 14-27.4(a)(1) with four counts of first-degree sexual offense against a child who was under the age of 13, where defendant was at least 12 years old and at least four years older than the victim; further, the jury was instructed pursuant to G.S. 14-27.4(a)(1). State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Allegation in indictment that victim was “a child under 12 years of age” sufficiently alleged that she was “a child under the age of 13 years” within the meaning of this section. State v. Gainey, 319 N.C. 391 , 354 S.E.2d 236, 1987 N.C. LEXIS 1938 (1987).

Fatal Variance. —

Where all of the State’s evidence tended to show that defendant penetrated the vaginal and rectal orifices of two girls by using a tampon, and no evidence in the record tended to show that defendant committed the act of cunnilingus or of anal intercourse with either victim as alleged in the indictment, the trial court erred in failing to dismiss the charges on grounds of a fatal variance between the allegations and the proof at trial. State v. Williams, 303 N.C. 507 , 279 S.E.2d 592, 1981 N.C. LEXIS 1195 (1981).

There was a fatal variance between the juvenile petition and the evidence where the petition, which charged a first-degree sexual offense based on the parties’ ages, was fatally defective because it did not allege the ages of the victim and the juvenile. In re Griffin, 162 N.C. App. 487, 592 S.E.2d 12, 2004 N.C. App. LEXIS 172 (2004).

Even in child sexual abuse cases, a variance as to time becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense; while time variances do not always prejudice a defendant so as to require dismissal, even when an alibi is involved, when the defendant relies on the date set forth in the indictment, but the State’s evidence substantially varies to the prejudice of defendant’s alibi defense, the interests of justice and fair play require that the defendant’s motion for dismissal be granted. In a case charging the defendant with taking indecent liberties with a child, where the State’s proof failed to show that alleged abuse occurred on the dates in the indictment, where the defendant had relied on those dates in building his alibi defense, and where all the evidence presented at trial went to sexual encounters over a period of years that ended a significant period of time prior to the dates listed in the indictment, defendant’s motion to dismiss should have been granted, and defendant’s conviction was reversed on appeal. State v. Custis, 162 N.C. App. 715, 591 S.E.2d 895, 2004 N.C. App. LEXIS 245 (2004).

Defendant’s convictions on six counts of first-degree sexual offense had to be vacated, as a fatal variance existed between the offense charged, which the State said in the indictment was by force and against the victim’s will, and the fact that the State did not present any evidence that the alleged offenses were forcible and the trial court’s instruction to the jury that the offense was based on the victim being under 13-years-old. State v. Lawrence, 170 N.C. App. 200, 612 S.E.2d 678, 2005 N.C. App. LEXIS 1016 (2005), rev'd in part, 360 N.C. 368 , 627 S.E.2d 609, 2006 N.C. LEXIS 30 (2006).

Because the indicted charge under this section was a lesser included offense of G.S. 14-27.4 A, the indictment did not allege all the elements of the crime set out in G.S. 14-27.4 A, the crime of which defendant was convicted, and therefore the judgment was vacated. Because the indictment sufficiently alleged the lesser included offense of first degree sexual offense under this section, and the jury’s verdict on the greater offense of sexual offense with a child necessarily included a determination by the jury that the defendant was guilty of that lesser included offense, the court remanded for entry of judgment and resentencing on the charge. of first degree sexual offense in violation of this section. State v. Hicks, 239 N.C. App. 396, 768 S.E.2d 373, 2015 N.C. App. LEXIS 71 , cert. denied, 368 N.C. 267 , 772 S.E.2d 731, 2015 N.C. LEXIS 540 (2015).

No Fatal Variance. —

State’s failure to physically amend the indictment to remedy a discrepancy between the date of the offense alleged in the indictment and that supported by the State’s evidence did not deprive the trial court of jurisdiction because the discrepancy was not automatically fatal; time was not an essential element of the offenses, no alibi defense was raised, and no statute of limitations was implicated since first-degree sexual offense was a felony. State v. Gates, 245 N.C. App. 525, 781 S.E.2d 883, 2016 N.C. App. LEXIS 186 (2016).

Victim Not Required to Testify. —

While it is true that in most sexual offense cases the victim does testify, nevertheless there is no requirement that the victim testify before the accused may be convicted. State v. Cooke, 318 N.C. 674 , 351 S.E.2d 290, 1987 N.C. LEXIS 1769 (1987).

Testimony as to Victim’s Credibility Inadmissible. —

Statements by an expert on child sexual abuse that she “had not picked up on anything” to suggest that someone had told the alleged victim what to say, and that she had no concerns that the alleged victim had been “coached,” bore directly on the alleged victim’s credibility and were inadmissible. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, 1993 N.C. App. LEXIS 97 (1993), writ denied, 333 N.C. 256 , 426 S.E.2d 701, 1993 N.C. LEXIS 44 (1993), aff'd, 336 N.C. 748 , 446 S.E.2d 1, 1994 N.C. LEXIS 407 (1994).

The trial court erred by allowing the teacher of an alleged victim of sexual abuse to testify on direct examination regarding specific instances of the alleged victim’s conduct which tended to establish her truthfulness. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, 1993 N.C. App. LEXIS 97 (1993), writ denied, 333 N.C. 256 , 426 S.E.2d 701, 1993 N.C. LEXIS 44 (1993), aff'd, 336 N.C. 748 , 446 S.E.2d 1, 1994 N.C. LEXIS 407 (1994).

Defendant’s convictions of first-degree sexual offense with a child under the age of thirteen were reversed because it was plain error to admit expert testimony that a lack of physical findings was not inconsistent with sexual abuse and that the victim fell in that category, as, (1) absent physical evidence, the testimony’s only bases were the victim’s history and statements to a social worker, which did not support the opinion that the child was abused, (2) the case turned on the credibility of the victim, who provided the only direct evidence against defendant, (3) the error seriously affected the fairness, integrity, and public reputation of judicial proceedings, since the victim’s recitations of defendant’s acts were not entirely consistent, and, (4) given the expert’s unquestioned stature in the field and the expert’s opinion that, even absent physical symptoms, the victim was sexually abused, the testimony stilled any doubts the jury might have had about the victim’s credibility or defendant’s culpability. State v. Towe, 366 N.C. 56 , 732 S.E.2d 564, 2012 N.C. LEXIS 420 (2012).

Testimony of Children. —

A conviction may be upheld in a case involving sexual offenses where proof includes testimony of a child victim even though the victim did not use the precise terms set out in this section. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Child victim’s testimony of defendant’s conduct and testimony by previous child victims of similar conduct, along with expert testimony of clinical social worker, was sufficient to convict defendant of first-degree sexual offense. State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316, 2001 N.C. App. LEXIS 1185 (2001), cert. denied, 536 U.S. 967, 122 S. Ct. 2680, 153 L. Ed. 2d 851, 2002 U.S. LEXIS 5060 (2002).

There was substantial evidence to support the essential elements of first-degree sexual offense under G.S. 14-27.4(a) where all three of defendant’s children testified to the egregious acts committed by defendant against them. State v. Bartlett, 153 N.C. App. 680, 571 S.E.2d 28, 2002 N.C. App. LEXIS 1247 (2002).

Use of Anatomical Dolls to Illustrate Testimony Proper. —

The courts of this State have allowed the use of anatomical dolls in sexual abuse cases to illustrate the testimony of child witnesses; the practice is wholly consistent with existing rules governing the use of photographs and other items to illustrate testimony and it conveys the information sought to be elicited, while permitting the child to use a familiar item, thereby making him more comfortable. State v. Chandler, 324 N.C. 172 , 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

Even though dolls were used to illustrate the testimony of a social worker rather than the abused children, the evidence was still admissible; the demonstration illustrated the social worker’s testimony as to the manner in which the children communicated accounts of sexual abuse and the social worker’s demonstration of what she observed each child do with the dolls also corroborated the testimony of each child. State v. Chandler, 324 N.C. 172 , 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

Seven-year-old child’s testimony constituted sufficient evidence of penetration to support a conviction of first degree sexual offense. State v. Watkins, 318 N.C. 498 , 349 S.E.2d 564, 1986 N.C. LEXIS 2671 (1986).

Although young victim did not use the word “vagina” or “genital area” when describing the sexual assault perpetrated upon her, where she did employ words commonly used by females of tender years to describe those areas of their bodies, of which they are just becoming aware, such evidence was ample to support verdict of guilty of first degree sexual offense. State v. Rogers, 322 N.C. 102 , 366 S.E.2d 474, 1988 N.C. LEXIS 125 (1988).

Proof of Penetration. —

To prove a case of first-degree sexual offense, the State must prove there was “penetration, however slight, by any object into the genital or anal opening of another person’s body”; that the victim was a child under the age of 13 years old; and the defendant is at least 12 years old and is at least four years older than the victim. State v. Huntley, 104 N.C. App. 732, 411 S.E.2d 155, 1991 N.C. App. LEXIS 1108 (1991).

Seven-year-old child’s testimony constituted sufficient evidence of penetration to support a conviction of first-degree sexual offense. State v. Watkins, 318 N.C. 498 , 349 S.E.2d 564, 1986 N.C. LEXIS 2671 (1986).

Child’s Testimony Sufficient to Show Penetration of Anal Opening. —

In trial for first degree sexual offense, where victim testified that defendant put his penis in the “back” and went on to explain that she meant “where I go number two,” the child’s testimony, taken as a totality, was sufficient evidence that the defendant penetrated child’s anal opening. State v. Estes, 99 N.C. App. 312, 393 S.E.2d 158, 1990 N.C. App. LEXIS 494 (1990).

Medical Evidence to Support Victim’s Testimony. —

Evidence was sufficient to allow a jury to convict defendant of first-degree sexual offense when the victim, his daughter, testified about his acts of anal intercourse and fellatio upon her, and medical evidence was presented from which the jury could infer that sexual acts upon the victim occurred. State v. Davis, 2002 N.C. App. LEXIS 1193 (N.C. Ct. App. Aug. 6, 2002), cert. denied, 356 N.C. 170 , 568 S.E.2d 623, 2002 N.C. LEXIS 793 (2002).

Defendant’s conviction of six counts of first-degree sexual offense of a child under the age of 13 years was affirmed because admission of videotape interviews of the children victims was permissible under G.S. 8C-1-803(4) because the challenged statements were made to pediatric nurses at the children’s center prior to examination by the doctor; there was sufficient evidence to support the charges. State v. Burgess, 181 N.C. App. 27, 639 S.E.2d 68, 2007 N.C. App. LEXIS 72 (2007), cert. denied, 365 N.C. 337 , 717 S.E.2d 384, 2011 N.C. LEXIS 728 (2011).

Medical Evidence Not Required. —

Medical evidence was not required to support a conviction of first-degree sexual offense under G.S. 14-27.4(a)(1) where the nature of the criminal acts made it unlikely that there would be physical evidence of the offense. State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212, 2001 N.C. App. LEXIS 860 (2001), aff'd, 560 S.E.2d 148, 2002 N.C. LEXIS 82 (N.C. 2002), cert. dismissed, 364 N.C. 612 , 705 S.E.2d 343, 2010 N.C. LEXIS 946 (2010).

Child’s uncertainty as to the time or particular day the offense was committed goes to the weight of the testimony rather than its admissibility, and nonsuit may not be allowed on the ground that the State’s evidence fails to fix any definite time when the offense was committed where there is sufficient evidence that the defendant committed each essential act of the offense. State v. Effler, 309 N.C. 742 , 309 S.E.2d 203, 1983 N.C. LEXIS 1459 (1983).

Allowing Testimony as to Age of Defendant Not Error. —

In a prosecution for first degree sexual offenses and taking indecent liberties with minors, the trial court did not err in allowing a deputy to testify as to his opinion that defendant appeared to be between 29 and 30 years of age since it was not necessary for the State to prove defendant’s exact age in order to convict him of any of the crimes charged, and the deputy had ample opportunity to observe defendant during the booking process and in the courtroom. State v. Banks, 322 N.C. 753 , 370 S.E.2d 398, 1988 N.C. LEXIS 479 (1988).

Evidence Supported Charge of First-Degree Sexual Offense. —

Where the defendant choked the victim into unconsciousness three times, her jeans were tied around her neck and used to drag her nude body through a wooded area where she was left, she had a deep red ring around her throat and bruises and abrasions over nearly her entire body, the victim testified that the defendant had tried to put her eyes out with his thumbs, the evidence, taken in the light most favorable to the State, supported the serious injury element of first-degree rape and first-degree sexual offense. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Because defendant displayed a dangerous or deadly weapon and the co-defendant aided and abetted defendant in having oral or anal intercourse with the victim, the evidence was sufficient to convict him of the crime of first degree sexual offense, under G.S. 14-27.4 . State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

Evidence that defendant removed his pants, walked into the room where the victim, defendant’s seven- or eight-year-old daughter was seated, stood in front of the victim, and asked the victim to put defendant’s penis in the victim’s mouth qualified as overt act sufficient to submit the charge of attempted first-degree sexual offense to the jury. State v. Henderson, 182 N.C. App. 406, 642 S.E.2d 509, 2007 N.C. App. LEXIS 671 (2007).

Trial court did not err in instructing the jury on first-degree sexual offense because there was evidence to support a finding that the victim suffered serious personal injury; there was ample evidence of physical injury, including injuries to the victim’s face, neck, arms, and legs, and evidence of the victim’s residual mental injury was sufficient to support a finding of serious personal injury. State v. Gates, 245 N.C. App. 525, 781 S.E.2d 883, 2016 N.C. App. LEXIS 186 (2016).

Evidence Supported Findings in Aggravation. —

In first-degree sexual offense case, rather than characterize the prosecuting attorney’s summary of the evidence as a “mere assertion,” it was more appropriate to focus on the fact that defense counsel admitted the correctness of that summary in his own statement to the court; the message communicated to the trial court by defendant, through counsel, was very clear by conduct, syntax and vocabulary, and if not a stipulation, it was certainly an admission that defendant in fact stuck his penis in the mouth of the five-year-old niece whom he bathed, fed and took care of, and with whom he lived; therefore, there was sufficient evidence to support the findings in aggravation. State v. Mullican, 95 N.C. App. 27, 381 S.E.2d 847, 1989 N.C. App. LEXIS 658 (1989), aff'd, 329 N.C. 683 , 406 S.E.2d 854, 1991 N.C. LEXIS 514 (1991).

Motive for Original Use of Force Irrelevant. —

Even though defendant struck victim with croquet stick in her bedroom because he was angry with her for having sex with someone else, rather than for the purpose of forcing her to have sex with him, the first-degree sexual offense statute applied; it was clear that defendant’s use of the croquet stick had the effect of putting the victim in fear for her life and thereby forcing her to submit to the defendant; fact that defendant initially became angry at the thought that the victim may have engaged in sexual activity with someone else was of no significance. State v. Hinton, 95 N.C. App. 683, 383 S.E.2d 704, 1989 N.C. App. LEXIS 869 (1989).

Cross-Examination Properly Restricted. —

In trial for first-degree sexual offense and burglary, the trial court did not err in prohibiting defendant’s attempted cross-examination of victim concerning psychiatric treatment that she had received and unrelated charges of sexual assault that she had made against another person in a previous judicial proceeding. State v. Wrenn, 316 N.C. 141 , 340 S.E.2d 443, 1986 N.C. LEXIS 1916 (1986).

Testimony Held Sufficient to Show Cunnilingus. —

Victim’s testimony was sufficient to establish that defendant placed his tongue on her mons pubis, which is part of the external female genitalia. Thus, the act of cunnilingus was thus complete. State v. Weathers, 322 N.C. 97 , 366 S.E.2d 471, 1988 N.C. LEXIS 124 (1988).

Testimony of Victim Sufficient Evidence of Cunnilingus. —

Testimony of four-year-old girl that defendant “touched me . . . with his tongue . . . between my legs,” while indicating the place of touching to the jury, constituted sufficient evidence of cunnilingus to support a conviction for a first-degree sexual offense. State v. Ludlum, 303 N.C. 666 , 281 S.E.2d 159, 1981 N.C. LEXIS 1199 (1981).

An alleged child victim’s testimony that defendant placed his tongue on her pubic area was sufficient to establish that defendant committed a completed act of cunnilingus. State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212, 2001 N.C. App. LEXIS 860 (2001), aff'd, 560 S.E.2d 148, 2002 N.C. LEXIS 82 (N.C. 2002), cert. dismissed, 364 N.C. 612 , 705 S.E.2d 343, 2010 N.C. LEXIS 946 (2010).

Testimony Held Irrelevant. —

Trial judge did not err by not allowing defendant’s witnesses to testify that he had not molested their children and by not allowing several children to testify that he had not molested them since such testimony was totally irrelevant. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Evidence of Intent. —

Where defendant showed to brother of a sexual-offense victim, condoms to be used “whenever they were going to make love,” the prosecution’s questions to defendant concerning the condoms were admissible to show proof of intent, preparation, plan, knowledge and absence of mistake. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Evidence of prior sex acts may have some relevance to the question of defendant’s guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. Such evidence is deemed admissible and not violative of the general rule prohibiting character evidence. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Evidence Improperly Admitted. —

The trial court erred in allowing the State to cross-examine defendant charged with a sexual offense in the first degree concerning the following items in cross-examination: photographs, a dildo, a catalogue of condoms, lubricant, and two books entitled “Sexual Intercourse” and “The Sex Book,” all of which were found in his home. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Evidence That Defendant Enjoyed Consensual Anal Sex With His Wife Improperly Admitted. —

Defendant was granted a new trial on his convictions of first degree sex offense with a child, G.S. 14-27.4 , and taking indecent liberties with a child, G.S. 14-202.1 , because the trial court erred, pursuant to G.S. 8C-1 , N.C. R. Evid. 404(b), in admitting testimony by defendant’s wife that defendant enjoyed anal sex; the fact that defendant engaged in and liked consensual anal sex with his wife was not by itself sufficiently similar to engaging in anal sex with an underage victim beyond the characteristics inherent to both to be admissible under rule 404(b). State v. Dunston, 161 N.C. App. 468, 588 S.E.2d 540, 2003 N.C. App. LEXIS 2186 (2003).

Statements to Social Worker Acting as Agent of State. —

In case involving crimes against child victim, where social worker went beyond merely fulfilling her role as the victim’s social worker and began working with the sheriff’s department on the case prior to interviewing defendant, the social worker’s role changed and became essentially like that of an agent of the State; accordingly, because the social worker did not advise defendant of her Miranda rights, the trial court erred in denying defendant’s motion to suppress statements made during her interview with the social worker. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, 1993 N.C. App. LEXIS 98 , cert. denied, 333 N.C. 465 , 427 S.E.2d 626, 1993 N.C. LEXIS 123 (1993).

Admission of defendant’s statement concerning prior incidents held proper. In a case of first degree sexual offense and taking indecent liberties with two young boys, defendant’s statement to detective concerning prior incidents of taking indecent liberties with two young girls was relevant to show defendant’s unnatural lust, intent or state of mind. State v. Reeder, 105 N.C. App. 343, 413 S.E.2d 580, 1992 N.C. App. LEXIS 236 (1992).

Confession was voluntary because defendant was not under arrest during the questioning; he was advised of and knowingly waived his constitutional rights; the officer’s statements regarding defendant’s employment, the possession of his car, and his rights to visit his son came in response to specific questions asked by defendant; and any promises that may have been made by the officer concerned collateral matters, not involving the crime charged. State v. Cabe, 136 N.C. App. 510, 524 S.E.2d 828, 2000 N.C. App. LEXIS 53 (2000).

Defense of Duress. —

Although defendant argued he forced his teenage son to commit a sex act against defendant’s ten-year-old daughter and, as such, the son was acting under duress and could not be guilty of a crime, a trial court did not err in denying defendant’s motion to dismiss the charges of aiding and abetting a sex offense and child abuse, G.S. 14-27.4(a)(1) and G.S. 14-318.4(a2), because even if defendant’s teenage son was under duress while performing certain acts upon his sister, such acts still constituted a crime and duress did not transform those acts into non-criminal activity. State v. Stokes, 216 N.C. App. 529, 718 S.E.2d 174, 2011 N.C. App. LEXIS 2287 (2011).

Evidence Held Sufficient. —

Evidence was sufficient to support defendant’s conviction of first-degree sex offense based on the theory that he aided and abetted his codefendant brother in the commission of the offense. State v. Bell, 311 N.C. 131 , 316 S.E.2d 611, 1984 N.C. LEXIS 1723 (1984).

Child’s testimony held sufficient to support a conviction for first-degree sexual offense. State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Where both child victims testified and demonstrated with anatomically correct dolls the manner in which defendant inserted his penis into their backsides, this evidence was sufficient to permit the jury to find beyond a reasonable doubt that defendant penetrated the anal openings of both of the boys with his penis. State v. DeLeonardo, 315 N.C. 762 , 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

Evidence of rectal penetration held sufficient. State v. Sloan, 316 N.C. 714 , 343 S.E.2d 527, 1986 N.C. LEXIS 2409 (1986).

Testimony of child who was nine at the time of the offense, describing 20-year-old defendant’s commission of anal intercourse, corroborated by that of her mother and the examining physician’s evidence constituting proof of essential elements of first degree sexual offense. State v. Griffin, 319 N.C. 429 , 355 S.E.2d 474, 1987 N.C. LEXIS 2026 (1987).

Evidence held sufficient to convict defendant of an offense under this section against four-year-old victim. State v. Kivett, 321 N.C. 404 , 364 S.E.2d 404, 1988 N.C. LEXIS 8 (1988).

Evidence held sufficient to support the jury finding that defendant was guilty of first degree sexual offense. State v. Jordan, 321 N.C. 714 , 365 S.E.2d 617, 1988 N.C. LEXIS 233 (1988).

Testimony of child victim held sufficient for the jury to find the dates of the offenses. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

There was evidence in record to support jury’s findings as to first-degree sexual offense where, although child responded “I don’t think so” when the assistant district attorney asked if defendant had done anything else to her, her sister testified that she and other girl “touched” defendant’s penis “with [their] lips” when the three were in the car. State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467, 1989 N.C. App. LEXIS 86 (1989).

In trial on charges of first-degree rape and first-degree sexual offense, evidence supported the jury’s verdict of guilty on the basis that the victim suffered serious personal injury in the form of both bodily and mental injury, where the victim testified that in addition to the physical pain she experienced during and immediately after the rape and sodomy, she had continued to experience appetite loss, severe headaches, nightmares, sleep difficulty, difficulty in urination, and difficulty in bowel movements. State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645, 1990 N.C. App. LEXIS 1211 (1990).

Evidence in juvenile proceeding held sufficient to support conviction of first degree sexual offense by 13-year-old babysitter against four-year-old. In re J.A., 103 N.C. App. 720, 407 S.E.2d 873, 1991 N.C. App. LEXIS 933 (1991).

Although a nurse and doctor who examined an alleged rape victim testified that they did not find conclusive physical evidence that a sex act occurred, this medical testimony did not negate the victim’s testimony that defendant committed numerous sexual acts against her, which was corroborated by the forensic evidence; also, the State presented evidence of seminal fluid collected from the victim’s bedroom that matched defendant’s DNA. Therefore, the State presented sufficient evidence from which a jury could find that defendant committed first-degree statutory rape under G.S. 14-27.2(a)(1), first-degree sexual offense under G.S. 14-27.4(a)(1), and indecent liberties with a child under G.S. 14-202.1 . State v. Shepherd, 163 N.C. App. 646, 594 S.E.2d 439, 2004 N.C. App. LEXIS 581 (2004).

Defendant’s conviction for sexual assault was affirmed because there was substantial evidence that defendant engaged in a sexual act of anal penetration with the victim, against the victim’s will, and by employing a knife as a dangerous or deadly weapon. While the elderly victim gave conflicting testimony as to whether defendant penetrated her anally, a report from a rape kit concluded that semen was present on the swab from the victim’s rectum; furthermore, an emergency room doctor testified that it was possible for a person to be penetrated anally without showing signs of trauma and a victim might not recall anal penetration due to the fear experienced during such an assault. State v. Cartwright, 177 N.C. App. 531, 629 S.E.2d 318, 2006 N.C. App. LEXIS 1076 (2006).

Evidence supported defendant’s conviction for rape, statutory rape, sex offense, statutory sex offense, and sex offense in a parental role as: (1) defendant attacked the 14-year-old victim over a period of hours; (2) defendant’s expert testified that various wounds were inflicted while the victim was alive; (3) defendant raped the victim vaginally and anally while the victim was alive, leaving semen inside both her vagina and anus; (4) evidence from the victim’s lung tissue showed the victim was alive for a substantial period of time after the brain injury was inflicted; and (5) after hitting the victim in the head, defendant walked around thinking about how to cover up the crime, attempted to clean the victim up, and then sexually assaulted her body, all part of the same episode. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Convictions of two counts of first-degree sexual offense were proper because a detective and a forensic interviewer corroborated the six-year-old victim’s testimony by relating that the victim told them during interviews that defendant performed fellatio on him more than once. State v. Prush, 185 N.C. App. 472, 648 S.E.2d 556, 2007 N.C. App. LEXIS 1822 (2007).

Circumstances to which the ten-year-old female testified, and defendant’s inculpatory statements, when viewed most favorably to the State, amounted to substantial evidence that defendant’s penis touched the ten-year-old female’s mouth and supported defendant’s conviction for first degree sexual offense. The ten-year-old female testified that the female heard a “swishing” sound made by undershorts being pulled down, and felt skin and wetness on the female’s mouth, and, in defendant’s inculpatory statements, defendant admitted putting defendant’s penis in the “other little girl’s mouth”. State v. Reaves, 196 N.C. App. 683, 676 S.E.2d 74, 2009 N.C. App. LEXIS 523 (2009).

Trial court did not err in denying defendant’s motion to dismiss because, viewing the evidence in the light most favorable to the State of North Carolina, the State presented sufficient evidence of anal penetration of the minor victim by defendant, through the testimony of the victim, the victim’s brother, a physician’s assistant who examined the victim, and a child therapist who met with the victim, to allow a jury to find that defendant committed first-degree sexual offense. State v. Norman, 196 N.C. App. 779, 675 S.E.2d 395, 2009 N.C. App. LEXIS 504 (2009).

Trial court did not err in denying defendant’s motion to dismiss because the evidence was sufficient to constitute substantial evidence of each element of the crime of first degree sexual offense under G.S. 14-27.4(a) where a minor child testified that on three separate occasions defendant reached beneath the child’s shorts and touched between “the skin type area” in “the area that you pee out of.” Further, the child testified that defendant would rub against a pressure point causing the child pain and made the child feel as if the child was about to pass out, while a pediatrician testified that with extreme pressure and friction on the outside of the child’s labia majora or also on the inside coupled with the complaint of pain, it was more suggestive of touching these structures on the inside. State v. Crocker, 197 N.C. App. 358, 676 S.E.2d 658, 2009 N.C. App. LEXIS 712 (2009).

Trial court did not err in denying defendant’s motion to dismiss the first degree sexual offense charge, because the State presented sufficient evidence and the jury instructions, read as a whole, correctly instructed the jury of the findings required for conviction. State v. Lark, 198 N.C. App. 82, 678 S.E.2d 693, 2009 N.C. App. LEXIS 1101 (2009).

There was sufficient evidence to survive defendant’s motion to dismiss all of the charges against him, which included first-degree sex offense with a child, G.S. 14-27.4(a)(1), attempted first-degree statutory rape G.S. 14-27.2 , and two separate counts of indecent liberties with a child, G.S. 14-202.1(a)(1), because the victims both recounted specific details about the sexually abusive conduct of defendant; a police officer, doctors, and other witnesses testified that the victims both told them about defendant’s sexually abusive conduct, and the State introduced as evidence the recorded interviews of the victims that were used by the medical team at the child abuse center to make their treatment recommendations. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145, 2010 N.C. App. LEXIS 640 (2010), cert. dismissed, 372 N.C. 708 , 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Where the victim testified that on at least one occasion defendant’s penis penetrated her anus and a nurse examiner testified that the victim’s anal fissure could have resulted from trauma to the anal area, the evidence, if credited by the jury, was sufficient to support a finding of anal penetration supporting the first-degree sexual offense conviction. State v. Carter, 216 N.C. App. 453, 718 S.E.2d 687, 2011 N.C. App. LEXIS 2289 (2011), rev'd, 366 N.C. 496 , 739 S.E.2d 548, 2013 N.C. LEXIS 344 (2013).

Appellate court erred in granting defendant a new trial on two convictions of sexual offense of a child, because defendant confessed to four incidents of fellatio with victim and the State presented sufficient evidence of trustworthiness of defendant’s confession to all four incidents, including that defendant’s confession contained details likely to be known only to perpetrator and evidence that defendant had an opportunity to commit the crime. State v. Sweat, 366 N.C. 79 , 727 S.E.2d 691, 2012 N.C. LEXIS 416 (2012).

Evidence that defendant forced the victim, at gunpoint, to remove her clothing and insert her fingers into her vagina was sufficient to defeat defendant’s motion to dismiss a first-degree sex offense charge. State v. Green, 229 N.C. App. 121, 746 S.E.2d 457, 2013 N.C. App. LEXIS 891 (2013).

Evidence Held Insufficient. —

Given the ambiguity of the seven-year-old victim’s testimony as to anal intercourse, and absent corroborative evidence (such as physiological or demonstrative evidence) that anal intercourse occurred, as a matter of law the evidence was insufficient to support a verdict of first-degree sexual offense. State v. Hicks, 319 N.C. 84 , 352 S.E.2d 424, 1987 N.C. LEXIS 1826 (1987).

There was insufficient evidence that defendant engaged in first-degree sexual offense against a child who was under the age of 13, where defendant was at least 12 years old and at least four years older than the victim under G.S. 14-27.4(a)(1) prior to the victim turning 13 to send the case to the jury, as the victim testified that the first time defendant had sex with the victim, the victim was 13, and that over the course of two years, defendant performed various other sexual acts upon the victim; the victim’s testimony failed to indicate that the events occurred when defendant began touching the victim and on the day prior to the victim’s 13th birthday. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Under the corpus delicti rule, statements defendant made to a victim’s brother immediately after defendant confessed to a detective that the victim attempted to perform fellatio, opportunity evidence, and defendant’s testimony that he felt something touch his penis did not constitute the substantial independent evidence that was required to establish the sexual act element of first-degree sexual offense under G.S. 14-27.1(4) and G.S. 14-27.4 because the victim testified that a sexual act did not occur, the statements made to the victim’s brother were not independent of the extrajudicial confession, and the extrajudicial confession and defendant’s testimony did not allow a jury to find beyond a reasonable doubt that the victim’s mouth made contact with defendant’s penis. State v. Smith, 362 N.C. 583 , 669 S.E.2d 299, 2008 N.C. LEXIS 972 (2008).

Expert Statement Improper Evidence. —

Expert’s statement, which intimated the cause of the alleged victim’s post-traumatic stress syndrome was the sexual abuse inflicted by defendant, was erroneously admitted as substantive evidence to prove victim suffered a sexual assault by anal penetration and that defendant committed the offense. State v. Hensley, 120 N.C. App. 313, 462 S.E.2d 550, 1995 N.C. App. LEXIS 822 (1995).

Defendant was entitled to a new trial on the charge of first-degree sexual offense because the trial court erred when it admitted a doctor’s expert opinion that sexual abuse had in fact occurred when the doctor’s testimony amounted to an improper opinion on the victim’s credibility, and it had a probable impact on the jury’s result; the victim’s testimony was the only direct evidence implicating defendant on the charge of first-degree sexual offense, and while the doctor could give such testimony with regard to vaginal rape, where he found significant findings of physical evidence to support the charge history, he could not testify that it was defendant who repeatedly abused the victim where no such physical evidence existed. State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367, 2009 N.C. App. LEXIS 1065 (2009), vacated, 2011 N.C. App. LEXIS 380 (N.C. Ct. App. Mar. 1, 2011).

Arrest of Judgment Proper. —

Trial court did not err by electing to arrest judgment on a felonious child abuse with a deadly weapon conviction as only one felony was necessary to support a felony murder conviction, and the jury found that five felonies could support a felony murder charge including forcible rape, statutory rape, forcible sex offense, statutory sex offense, and felony child abuse with a deadly weapon. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Jury Instruction on Crime Not Set Out in Indictment. —

The court erred in entering judgment upon the defendant’s conviction of a statutory sexual offense, a violation of G.S. 14-27.7 A, following instructions under G.S. 14-27.7 A where the indictment alleged a forcible sexual offense, a violation of this section. State v. Miller, 137 N.C. App. 450, 528 S.E.2d 626, 2000 N.C. App. LEXIS 418 (2000).

Trial court committed plain error by instructing the jury on “sexual offense with a child; adult offender” in violation of G.S. 14-27.4 A(a), where the indictment charged defendant pursuant to G.S. 14-27.26 , first-degree sexual offense. State v. Harris, 243 N.C. App. 728, 778 S.E.2d 875, 2015 N.C. App. LEXIS 896 (2015).

Instructions under G.S. 14-27.7 A Insufficient for Indictment Brought under This Section. —

Where the jury is instructed and reaches its verdict on the basis of the elements set out in G.S. 14-27.7 A, but defendant was indicted and brought to trial on the basis of the elements set out in this section, the indictment under which defendant was brought to trial could not be considered valid and any judgment made thereon must be vacated. State v. Bowen, 139 N.C. App. 18, 533 S.E.2d 248, 2000 N.C. App. LEXIS 807 (2000).

Disjunctive Instruction Proper. —

Trial court did not err in giving a disjunctive instruction because the evidence was sufficient to find defendant guilty of first-degree sexual offense under the theory that he employed a dangerous or deadly weapon in the commission of the sexual act as well as under the theory that he was aided and abetted by one or more persons in the perpetration of the crime; by joining defendant in unclothing and immobilizing the victim, others were deemed to have contributed to the commission of the crime. State v. Dick, 370 N.C. 305 , 807 S.E.2d 545, 2017 N.C. LEXIS 945 (2017).

No Error in Jury Instruction. —

Trial court’s jury instruction on sexual offense did not deprive defendant of his right to a unanimous jury verdict because a jury verdict did not need to make a specific finding regarding precisely which sexual acts proscribed by this section that defendant committed. State v. Flow, 277 N.C. App. 289, 859 S.E.2d 224, 2021- NCCOA-183, 2021 N.C. App. LEXIS 201 (2021).

Double Jeopardy. —

Defendant’s claim that by failing to differentiate the various charges by providing different dates for the offenses and listing the underlying acts, the indictments opened the door to defendant being subjected to double jeopardy for the same acts on the same dates, was rejected because: (1) defendant’s indictments for statutory sexual offense, statutory sexual offense against a person who was 13, 14, or 15 years of age, and sexual offense were in compliance with the requirements of G.S. 15-144.2 , and the indictments matched the wording of N.C. G.S. 14-27.4(a)(1), G.S. 14-27.7 A(a), and G.S. 14-27.5(a)(1); (2) defendant’s indictments for the charges of taking indecent liberties with a child matched the wording of G.S.14-202.1(a)(2); and (3) defendant’s assault on a female indictments matched the wording of G.S. 14-33(c)(2); each of the indictments was sufficient to inform defendant of the charges against defendant, and defendant failed to show any deprivation of defendant’s ability to prepare a defense due to a lack of specificity in the indictments. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Unanimity of Verdict. —

Trial court did not err by not requiring a unanimous verdict regarding the specific sexual act it found as the predicate act for the verdict of guilty of first degree sexual offense where the victim testified that he had committed various sexual acts with the victim. State v. Carrigan, 161 N.C. App. 256, 589 S.E.2d 134, 2003 N.C. App. LEXIS 2045 (2003).

Defendant was not deprived of defendant’s right to a unanimous jury verdict as to charges of first-degree statutory sexual offense under G.S. 14-27.2 , statutory sexual offense against a person who was 13, 14, or 15 years old under G.S. 14-27.4(a)(1), taking indecent liberties with a child under G.S. 14-202.1 , second-degree forcible sexual offense under G.S 14-27.5, and assault on a female by a male at least 18 years of age under G.S. 14-33(c)(2) as: (1) the indictments were valid absent the inclusion of the specific acts that constituted the alleged sexual offenses; (2) the jury instructions and verdict sheets for each offense specifically identified each case by its number, listed the date on which each offense was alleged to have occurred, and listed the specific acts which were to serve as the underlying basis for each offense; (3) the jury was instructed specifically in each case in which defendant was charged with multiple counts of the same offense involving the same victim; (4) there was nothing in the record to indicate that the jury was confused by either the trial court’s instructions or the verdict sheets; and (5) the jury was polled following the announcement of the verdicts. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Instruction Held to Deprive Defendant of Unanimous Verdict. —

The trial court committed reversible error in instructing the jury that it could convict defendant of first degree sex offense if it found that he forced the victim to perform either fellatio or anal intercourse, as defendant had a constitutional right to be convicted by the unanimous verdict of a jury in open court, and under this instruction there was no way to tell whether defendant was convicted of second degree sexual offense because the jury unanimously agreed that defendant engaged in fellatio, anal intercourse, both fellatio and anal intercourse, or whether some members of the jury found that he engaged in fellatio but not anal intercourse, and some found that he engaged in anal intercourse but not fellatio. State v. Callahan, 86 N.C. App. 88, 356 S.E.2d 403, 1987 N.C. App. LEXIS 2658 (1987).

Instruction Did Not Deny Defendant’s Right to Conviction by Unanimous Jury. —

For case holding jury instruction on charge of first degree sexual offense stating that if jury found defendant engaged in either fellatio or vaginal penetration it could convict defendant of that charge was not error and in particular was not a denial of defendant’s right to a conviction by a unanimous jury, see State v. McCarty, 326 N.C. 782 , 392 S.E.2d 359, 1990 N.C. LEXIS 286 (1990).

Trial court properly instructed the jury it could find defendant guilty of the crimes of first-degree rape and first degree sexual offense if it found that defendant either displayed a dangerous or deadly weapon or was aided and abetted by one or more other persons during their commission, pursuant to G.S. 14-27.2(a)(2)(a) and (c) and G.S. 14-27.4(a)(2)(a) and (c). State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

Disjunctive Instruction Did Not Risk Nonunanimous Verdict. —

A disjunctive jury instruction on a first-degree sexual offense did not risk a nonunanimous verdict by defining a sexual act as either cunnilingus or penetration, where the statutory definition of “sexual act” did not create disparate offenses, but merely enumerated alternative methods of showing the commission of a sexual act. State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428, 1999 N.C. App. LEXIS 192 (1999).

Instruction on Crime Against Nature Properly Refused. —

Where there was no evidence from which the jury could have found that victim consented to sexual act, the trial court did not err in refusing to submit a crime against nature charge to the jury. State v. Jordan, 321 N.C. 714 , 365 S.E.2d 617, 1988 N.C. LEXIS 233 (1988).

Instructions on Serious Injury Upheld. —

In prosecution for first-degree rape and first-degree sexual offense, the trial court did not err in instructing the jury on the element of serious injury, where the trial court corrected its instructions on the mental element of serious injury when the lack of any evidence tending to show mental injury was drawn to the court’s attention, and the trial court then specifically instructed the jury that there was no evidence of mental injury in the present case and that the jury’s sole consideration was whether there was serious bodily injury. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Failure to Instruct Jury Not to Consider Serious Injury Evidence Upheld. —

Where the defendant was charged with first-degree sexual offense, but he was convicted of second-degree sexual offense which does not include either use of a deadly weapon or the infliction of serious injury, the trial court did not err in failing to instruct the jury not to consider evidence of serious injury caused by the sexual offense in determining its verdict on the assault with a deadly weapon inflicting serious injury charge, for in convicting him of second-degree sexual offense the jury necessarily found that no serious injury was inflicted during that offense, and in convicting him of assault with a deadly weapon inflicting serious injury they necessarily found that the victim’s only serious injury was inflicted during the assault with the deadly weapon. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

Jury instructions did not result in conditional directed verdicts because reviewing the instructions in their entirety, the instructions could not have led the jury to believe that it could return a verdict of guilty in all four first-degree sexual offense charges if the jury was satisfied of defendant’s guilt beyond a reasonable doubt for only one of those offenses. State v. Norman, 196 N.C. App. 779, 675 S.E.2d 395, 2009 N.C. App. LEXIS 504 (2009).

No Requirement of Instruction to Prove Digital Penetration. —

Trial court was not required to instruct jury that the State had to prove digital penetration as alleged in the indictment. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335, 2010 N.C. App. LEXIS 2362 (2010).

Attempt Instruction Not Warranted. —

In a trial for first-degree sexual offense, there was not sufficient evidence of the existence of a mere attempt to warrant an attempt instruction. State v. Rhinehart, 322 N.C. 53 , 366 S.E.2d 429, 1988 N.C. LEXIS 127 (1988).

In a case in which the defendant and an accomplice raped a woman and defendant was convicted of, inter alia, first degree sexual offense by anal intercourse, an instruction on attempted first degree sexual offense by anal intercourse was not required since the victim’s testimony never specifically excluded penetration and there was DNA evidence that defendant’s sperm was found on an anal swab. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560, 2007 N.C. App. LEXIS 2574 (2007), rev'd in part, 362 N.C. 340 , 663 S.E.2d 311, 2008 N.C. LEXIS 490 (2008).

Instruction of Lesser Offenses Warranted. —

Where there was conflicting evidence on defendant’s use of a knife, proof of which was necessary for a verdict of first-degree rape, victim testifying that defendant employed a knife during the act of rape, while defendant testified that there was no knife in his truck when the incident occurred, and no knife was ever located by investigating officers, the trial court properly included the lesser-included offenses of second-degree rape and second-degree sexual offense in its charge to the jury. State v. Watkins, 89 N.C. App. 599, 366 S.E.2d 876, 1988 N.C. App. LEXIS 355 (1988).

Instruction of Lesser Offenses Not Warranted. —

Trial court did not err in refusing defendant’s request to charge the jury on the lesser included offense of second-degree sexual offense, where the victim testified that defendant had a knife in his possession while he was performing oral sex on her. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808, 2011 N.C. App. LEXIS 1224 (2011).

Trial court did not err in denying defendant’s motion for a jury instruction on the lesser-included offense of second-degree forcible sex offense because the evidence showed that defendant was guilty of first-degree forcible sex offense as defendant’s cousin aided and abetted defendant in the commission of the sexual offense because the cousin’s words and actions of removing the victim’s short, refusing to respond as she pleaded for help and resisted, and uttering words that the victim should submit created an atmosphere to subvert the will of the victim; the cousin raped the victim on defendant’s orders; and no evidence tended to show that the cousin was merely a bystander. State v. Carpenter, 276 N.C. App. 120, 854 S.E.2d 825, 2021- NCCOA-43, 2021 N.C. App. LEXIS 41 (2021).

When Submission of Lesser Included Offense Necessary. —

Fact that the evidence in a trial for first degree sexual offense would have supported a verdict of guilty of the lesser included offense of second-degree sexual offense did not mean that the trial judge was required to submit the lesser offense. When the State seeks a conviction of only the greater offense and the case is tried on an all or nothing basis, the State’s evidence is not regarded as evidence of the lesser included offense unless it is conflicting, and the lesser included offense must be submitted only when a defendant presents evidence thereof or when the State’s evidence is conflicting. State v. Bullard, 97 N.C. App. 496, 389 S.E.2d 123, 1990 N.C. App. LEXIS 160 (1990).

Instruction Defining “Sexual Act”. —

In trial for first-degree sexual offense, trial court’s instruction which stated in part that “a sexual act means any penetration, however slight, by an object into the genital opening of a person’s body,” was not plain error. State v. Carter, 326 N.C. 243 , 388 S.E.2d 111, 1990 N.C. LEXIS 15 (1990).

When defendant was charged with first degree sexual offense with a child and a sex offense in a parental role, a disjunctive instruction allowing a jury to convict defendant if the jury found defendant committed, inter alia, analingus, when no such evidence was presented, was not plain error because, on the whole record, the instruction probably had no effect on the jury’s deliberations. State v. Martinez, 253 N.C. App. 574, 801 S.E.2d 356, 2017 N.C. App. LEXIS 384 (2017).

Instruction on “Use of Deadly Weapon”. —

The State is only required to show that defendant possessed a deadly or dangerous weapon at the time of the rape and that the victim was aware of the presence of the weapon because it had been displayed or employed; therefore, although the trial court’s instruction did not emphasize the victim’s awareness of the weapon, the instruction made clear that the State was required to prove that the weapon was displayed in some fashion and, therefore, was proper. State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383, 1989 N.C. App. LEXIS 464 (1989).

Trial court did not err by instructing the jury that it could consider whether or not the use of the bottle constituted a deadly weapon during the commission of the sexual offense because the victim testified that defendant and his accomplice, after tying his hands and feet, shoved a rag into his mouth, pulled his pants and underwear down, and inserted a bottle into his rectum, and that he thought that it would probably be left inside or that he was going to die; emergency room nurse examined the victim and observed a tear in his anal wall accompanied by “serious drainage.” State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288, 2011 N.C. App. LEXIS 213 (2011).

Error in Failure to Give Instruction on Affirmative Defense. —

Trial court committed reversible error by failing to instruct the jury on an affirmative defense to the predicate felony on which the jury based its first-degree murder conviction, as the jury based its conviction solely on the finding that defendant penetrated the victim’s genital opening with an object prior to inflicting the injuries that caused her death and defendant claimed he penetrated the victim while cleaning feces and urine, an accepted medical purpose. State v. Stepp, 232 N.C. App. 132, 753 S.E.2d 485, 2014 N.C. App. LEXIS 61 (2014), rev'd, 367 N.C. 772 , 767 S.E.2d 324, 2015 N.C. LEXIS 35 (2015).

Withdrawal of Request for Instructions Held Voluntary. —

Defendant on trial for first-degree rape and first-degree sexual offense was not forced by any erroneous ruling of the trial court to withdraw his request for instructions; accordingly, the defendant’s withdrawal of his request for instructions on involuntary commitment was voluntary and not improperly coerced by a mistaken ruling of the trial court. State v. Coppage, 94 N.C. App. 630, 381 S.E.2d 169, 1989 N.C. App. LEXIS 623 (1989).

Invited Error on Instruction. —

In defendant’s trial for first-degree rape and first-degree sex offense, defendant’s attorney actively participated in crafting the trial court’s response to the jury question, agreed with the trial court’s interpretation that a penis could be considered an “object,” and denied the trial court’s proposed clarification between vaginal intercourse and a sexual act, and thus defendant invited any error stemming from the trial court’s instructions. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

No Plain Error in Instruction. —

In defendant’s trial for first-degree rape and first-degree sex offense, the trial court did not commit plain error in referring to the victim as the victim during jury instructions, as case law held that the use of that term did not constitute plain error in instructions, plus it was not found that the term had a probable impact on the jury’s finding of guilt. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Juvenile Disposition. —

Juvenile defendant failed to argue how the absence of a sex offender specific evaluation hindered the trial court’s ability to properly sentence him on his adjudication for first degree sex offenses with a child. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757, 2008 N.C. App. LEXIS 693 (2008).

When appellant, a juvenile, was adjudicated delinquent for first degree sexual offense and indecent liberties between children, a trial court made sufficient dispositional findings because the court found, beyond a reasonable doubt, (1) crimes were premeditated and willful, (2) the sex crime was extremely serious, (3) the juvenile denied charges and said sex offender treatment would not benefit the juvenile, (4) the juvenile had attention deficit hyperactivity disorder symptoms, requiring a controlled environment, and (5) the juvenile’s family’s proximity to the victim made the juvenile’s release too dangerous. In re G.C., 230 N.C. App. 511, 750 S.E.2d 548, 2013 N.C. App. LEXIS 1203 (2013).

Denial of juvenile defendant’s motion for release pending appeal was not improper, given that defendant did not challenge the trial court’s findings of fact supporting its reason for denying defendant’s motion, which was that he committed first degree sex offenses with a child. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757, 2008 N.C. App. LEXIS 693 (2008).

Defendant Entitled to New Sentencing Hearing. —

Defendant was entitled to a new sentencing hearing, as he was erroneously sentenced for three counts of commission of sexual offense by an adult against a child in violation of G.S. 14-27.4 A (see now G.S. 14-27.28 ), although he was not convicted of that offense, but of first degree sexual offense, a violation of G.S. 14-27.4 (see now G.S. 14-27.26 ). State v. Bowlin, 245 N.C. App. 469, 783 S.E.2d 230, 2016 N.C. App. LEXIS 197 (2016).

§ 14-27.27. Second-degree forcible sexual offense.

  1. A person is guilty of second degree forcible sexual offense if the person engages in a sexual act with another person:
    1. By force and against the will of the other person; or
    2. Who has a mental disability or who is mentally incapacitated or physically helpless, and the person performing the act knows or should reasonably know that the other person has a mental disability or is mentally incapacitated or physically helpless.
  2. Any person who commits the offense defined in this section is guilty of a Class C felony.

History. 1979, c. 682, s. 1; 1979, 2nd Sess., c. 1316, s. 7; 1981, c. 63; c. 179, s. 14; 1993, c. 539, s. 1131; 1994, Ex. Sess., c. 24, s. 14(c); 2002-159, s. 2(c); 2015-181, s. 9(a), (b); 2018-47, s. 4(c).

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

As to essentials of bill of indictment for sexual offenses, see G.S. 15-144.2 .

As to venue of trial of sexual offenses where victim was transported, see G.S. 15A-136 .

As to office of coordinator of services for victims of sexual assault, see G.S. 143B-394.1 et seq.

Editor’s Note.

This section was formerly codified as G.S. 14-27.5 . It was recodified as G.S. 14-27.27 by Session Laws 2015-181, s. 9(a), effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 9(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the rewriting of subdivision (a)(2) of this section by Session Laws 2018-47, s. 4(c), effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2015-181, s. 9(b), effective December 1, 2015, inserted “forcible” in the section heading and substituted “second degree forcible sexual assault” for “a sexual offense in the second degree” in subsection (a). For applicability, see editor’s note.

Session Laws 2018-47, s. 4(c), rewrote subdivision (a)(2). For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For note discussing whether sex with a sleeping woman meets the requirements of force and lack of consent, see 65 N.C.L. Rev. 1246 (1987).

For note that addresses the effect of a recent United States Supreme Court decision on sodomy laws and the manner in which society may shape its characterization of Acquired Immune Deficiency Syndrome (AIDS) and homosexuality, see 66 N.C.L. Rev. 226 (1987).

For comment, “The Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

For article, “Transforming Teenagers into Oral Sex Felons: The Persistence of the Crime Against Nature After Lawrence v. Texas,” see 43 Wake Forest L. Rev. 155 (2008).

CASE NOTES

First and Second-Degree Offenses Distinguished. —

A second-degree offense differs from a first-degree offense only in the absence of the alternative elements of aiding and abetting, use or display of a deadly weapon, or infliction of serious bodily injury. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Under G.S. 14-27.4(a) and subsection (a) of this section, when aiding and abetting is proven, the offense is first degree; it can never be a second-degree offense. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Where the only theory that would sustain defendant’s conviction of a sexual offense was aiding and abetting, defendant could only be tried for a first-degree sexual offense and the court’s instruction on second-degree sexual offense was error, since the offense is always first degree when aiding and abetting is proven. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

In order for an offense to be submitted as a lesser included offense, not only must there be evidence of all elements of the offense, but all the elements of the offense to be submitted must be contained in the greater offense, and thus as a second-degree sexual offense has as an element that the sexual act must be committed “by force and against the will of the other person,” or against a person “who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know” of the victim’s deficiency, and neither of these alternative elements was an element of the first-degree sexual offense with which the defendant was charged, it was not error for the court to refuse to submit second-degree sexual offense as a lesser included charge. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Custodial Sexual Offense Distinguished. —

Second-degree rape and second-degree sexual offense require an act by force and against the will of another person. Custodial sexual offense does not. Custodial sexual offense requires that the perpetrator, or the perpetrator’s principal or employer, have custody of the victim. Second-degree rape and second-degree sexual offense do not. Custodial sexual offense thus requires proof of a fact which second-degree rape and second-degree sexual offense do not, and both second-degree rape and second-degree sexual offense require proof of a fact which custodial sexual offense does not. Double jeopardy considerations thus are not implicated. State v. Raines, 319 N.C. 258 , 354 S.E.2d 486, 1987 N.C. LEXIS 1932 (1987).

Conduct Included in “Sexual Act”. —

In defining a “sexual act” in G.S. 14-27.1(4) as “the penetration, however slight, by any object into the genital or anal opening of another person’s body,” the legislature intended the words “any object” to embrace parts of the human body as well as inanimate or foreign objects; therefore, the State’s evidence was sufficient for the jury in a prosecution for second-degree sexual offense where it tended to show that the defendant penetrated the genital opening of the prosecutrix’s body with his fingers. State v. Lucas, 302 N.C. 342 , 275 S.E.2d 433, 1981 N.C. LEXIS 1054 (1981).

Since anal intercourse or any other sexual act specified in this section, when it is relied on for conviction, constitutes an essential element of a second-degree sex offense, proof of such a sexual act forcibly committed, standing alone, is never enough to make a sex offense especially heinous, atrocious, or cruel, because under G.S. 15A-1340.4(a)(1) evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation. State v. Atkins, 311 N.C. 272 , 316 S.E.2d 306, 1984 N.C. LEXIS 1735 (1984).

Fellatio is included as a sexual act within the meaning of this section. State v. Jacobs, 128 N.C. App. 559, 495 S.E.2d 757, 1998 N.C. App. LEXIS 145 (1998).

Where the victim testified that defendant stuck two fingers inside her after pulling her clothes off and then licked her between her legs stating that he wanted to please her like a woman should be pleased, there was sufficient evidence to support defendant’s conviction based on the requisite “sexual act.” State v. Randolph, 224 N.C. App. 521, 735 S.E.2d 845, 2012 N.C. App. LEXIS 1444 (2012).

Request For Oral Sex. —

Requesting fellatio from an adult who is legally capable of consent in a non-threatening manner generally would not constitute an attempted sexual offense, but as the request for fellatio here was immediately preceded by defendant tricking the victim into letting him into her apartment, raping her, jabbing at her with a screwdriver, and immediately after her denial of his request, raping her again, this request was accompanied by a threat and show of force and amounted to an attempt; defendant’s presentation of his penis to the victim amounted to an attempt to engage her in a sexual act by force, and his conviction of an attempted second-degree sexual offense was affirmed. State v. Miles, 237 N.C. App. 170, 764 S.E.2d 237, 2014 N.C. App. LEXIS 1128 (2014).

“By Force”. —

The phrase “by force and against her will,” (now “by force and against the will of the other person”) used in this section and G.S. 14-27.2 , 14-27.3, and 14-27.4, means the same as it did at common law when it was used to describe some of the elements of rape. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981); State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Under the sexual offense statutes, actual physical force is not required to satisfy the statutory requirement that the sexual act be committed “by force and against the will” of the victim. Fear of serious bodily harm reasonably engendered by threats or other actions of a defendant and which causes the victim to consent to the sexual act takes the place of force and negates the consent. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981); State v. Raines, 72 N.C. App. 300, 324 S.E.2d 279, 1985 N.C. App. LEXIS 3058 (1985).

The threat of serious bodily harm which reasonably induces fear thereof constitutes sufficient force for a second-degree sexual offense under subdivision (a)(1) of this section. State v. Berkley, 56 N.C. App. 163, 287 S.E.2d 445, 1982 N.C. App. LEXIS 2358 (1982).

State presented sufficient evidence of the force required for forcible sexual offense under G.S. 14-27.5(a) to go to a jury as: (1) the victim was conditioned by defendant while the victim was living in defendant’s home to succumb to defendant’s illicit acts through the use of pornography and the regular occurrence of the sexual acts; (2) the victim was subject to defendant’s parental authority; (3) the victim testified that defendant told the victim that defendant wanted to be the first one to have sex with the victim, and complained to the victim that defendant’s wife was cold and did not have sex with defendant; (4) the victim stated that defendant said defendant was in love with the victim and told the victim about a dream defendant once had in which defendant shot both the victim and defendant; and (5) defendant told the victim that if the victim ever told anyone what defendant did with the victim, that defendant would go to jail, which would ruin defendant’s life and defendant would have no reason to live. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Juvenile was improperly adjudicated delinquent for second degree sexual offense counts under G.S. 14-27.5 because the State failed to prove either actual force or constructive force; the perpetrator and the victims were all minors of similar ages who suffered from some degree of cognitive difficulties. A relationship of a leader to a follower among children in school simply did not involve the same wielding of authority, disparity of power, and degree of fear that occurs between an abusive parent and a child. In re T.W., 221 N.C. App. 193, 726 S.E.2d 867, 2012 N.C. App. LEXIS 714 (2012).

To the extent that a sexual offense victim is not aware of the touching before it occurred or does not understand the exact nature of the touching at the moment it occurs, lack of consent is implied in law; therefore, defendant’s motion to dismiss was properly denied. State v. Henderson, 233 N.C. App. 538, 756 S.E.2d 860, 2014 N.C. App. LEXIS 361 (2014).

Physically Helpless. —

While under some circumstances the extreme old age or extreme youthfulness of a victim may increase an offender’s culpability because of the victim’s relative defenselessness, a 17-year-old rape or kidnapping victim is not so extremely young as to make her age reasonably related to the purposes of sentencing, and defendant would be entitled to a new sentencing hearing on his convictions of second-degree sexual offense and first-degree kidnapping where the trial judge considered the victim’s age as an aggravating factor in sentencing him. State v. Lewis, 68 N.C. App. 575, 315 S.E.2d 766, 1984 N.C. App. LEXIS 3415 (1984).

Actual physical force is not required to satisfy the statutory requirement that the act be committed by force and against the will of the victim; fear of serious bodily harm reasonably engendered by threats or other actions of a defendant and which causes the victim to consent, takes the place of force and negates the consent. State v. Britt, 80 N.C. App. 147, 341 S.E.2d 51, 1986 N.C. App. LEXIS 2149 (1986).

Mental Status of Defective Victim. —

A trial judge has no authority to order a victim to submit to a psychological examination when the victim’s mental status is an element of the crime with which the defendant is charged. State v. Horn, 337 N.C. 449 , 446 S.E.2d 52, 1994 N.C. LEXIS 404 (1994).

If there is substantial evidence that a person has engaged in prohibited sexual conduct in violation of G.S. 14-27.3 or this section, and the victim was mentally defective, and the perpetrator knew or reasonably should have known that the victim was mentally defective, there is substantial evidence that the person has engaged in such conduct “by force and against the will” of the victim. State v. Washington, 131 N.C. App. 156, 506 S.E.2d 283, 1998 N.C. App. LEXIS 1308 (1998), cert. denied, 352 N.C. 362 , 544 S.E.2d 562, 2000 N.C. LEXIS 587 (2000), writ denied, 644 S.E.2d 562, 2007 N.C. LEXIS 282 (N.C. 2007).

Mental Limitations of Defendant. —

Because, as the State conceded, there was no evidence that the victim had any mental limitations, the adjudication that defendant juvenile was delinquent for committing second-degree sexual offense was erroneous. In re A.W., 209 N.C. App. 596, 706 S.E.2d 305, 2011 N.C. App. LEXIS 215 (2011).

Lack of Consent Essential. —

Both a first and second-degree sexual offense, insofar as they may be committed against an adult not physically or mentally handicapped, have as an essential element the lack of the victim’s consent because they must be committed “by force and against the will” of the victim. State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982).

Force and Lack of Consent Are Implied When Victim Is Incapacitated. —

It makes no difference in the case of a sleeping or similarly incapacitated victim whether the State proceeds on the theory of a sexual act committed by force and against the victim’s will or whether it alleges an incapacitated victim; force and lack of consent are implied in law. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Lesser Included Offense. —

It was error for the trial court to submit crime against nature as a lesser included offense of second degree sexual offense. State v. Warren, 309 N.C. 224 , 306 S.E.2d 446, 1983 N.C. LEXIS 1387 (1983).

Trial court erred by denying defendant’s motions to dismiss the charges of first-degree rape and first-degree sexual offense because the State of North Carolina failed to offer any evidence tending to show that defendant employed or displayed a dangerous or deadly weapon or an article which the victim reasonably believed was a dangerous or deadly weapon, as required by G.S. 14-27.2(a)(2)(a) and G.S. 14-27.4(a)(2)(a). However, the case was remanded for resentencing because the jury’s convictions necessarily included all the elements of second-degree rape and second-degree sexual offense under G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1). State v. Adams, 187 N.C. App. 676, 654 S.E.2d 711, 2007 N.C. App. LEXIS 2572 (2007).

Defendant’s conviction for crime against nature in violation of G.S. 14-177 was vacated because crime against nature was a lesser-included offense of second-degree sexual offense, G.S. 14-27.5 , and entry of judgment on both convictions subjected defendant to unconstitutional double jeopardy; as to both crimes, the trial court instructed the jury that to return a guilty verdict, it had to find that defendant (1) committed the sex act of fellatio with the victim, an adult who was mentally disabled or incapacitated or physically helpless so as to be incapable of properly consenting. State v. Hunt, 221 N.C. App. 489, 728 S.E.2d 409, 2012 N.C. App. LEXIS 875 (2012), aff'd in part, 367 N.C. 700 , 766 S.E.2d 288, 2014 N.C. LEXIS 945 (2014).

When Submission of Lesser Included Offense Necessary. —

Fact that the evidence in a trial for first degree sexual offense would have supported a verdict of guilty of the lesser included offense of second-degree sexual offense did not mean that the trial judge was required to submit the lesser offense. When the State seeks a conviction of only the greater offense and the case is tried on an all or nothing basis, the State’s evidence is not regarded as evidence of the lesser included offense unless it is conflicting, and the lesser included offense must be submitted only when a defendant presents evidence thereof or when the State’s evidence is conflicting. State v. Bullard, 97 N.C. App. 496, 389 S.E.2d 123, 1990 N.C. App. LEXIS 160 (1990).

Proper Refusal to Charge on Lesser Included Offense. —

All of the evidence tended to show that, if the defendant committed any crime at all, he committed the crime of second-degree sexual offense for which he was tried; in such situations, the trial court must refuse to charge on lesser included offenses. State v. Brown, 332 N.C. 262 , 420 S.E.2d 147, 1992 N.C. LEXIS 482 (1992).

Trial court did not err in refusing defendant’s request to charge the jury on the lesser included offense of second-degree sexual offense where the victim testified that defendant had a knife in his possession while he was performing oral sex on her. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808, 2011 N.C. App. LEXIS 1224 (2011).

Trial court did not err in denying defendant’s motion for a jury instruction on the lesser-included offense of second-degree forcible sex offense because the evidence showed that defendant was guilty of first-degree forcible sex offense as defendant’s cousin aided and abetted defendant in the commission of the sexual offense because the cousin’s words and actions of removing the victim’s short, refusing to respond as she pleaded for help and resisted, and uttering words that the victim should submit created an atmosphere to subvert the will of the victim; the cousin raped the victim on defendant’s orders; and no evidence tended to show that the cousin was merely a bystander. State v. Carpenter, 276 N.C. App. 120, 854 S.E.2d 825, 2021- NCCOA-43, 2021 N.C. App. LEXIS 41 (2021).

Second-degree sexual offense and assault with a deadly weapon inflicting serious injury are separate and distinct offenses; each requires the proof of an element that the other does not, and neither is a lesser included offense of the other. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

Nonsuit Not Allowed for Failure to Fix a Definite Time. —

In the interests of justice and recognizing that young children cannot be expected to be exact regarding times and dates, a child’s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence. Nonsuit may not be allowed on the ground that the State’s evidence fails to fix any definite time for the offense where there is sufficient evidence that defendant committed each essential act of the offense. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Double Jeopardy Not Shown. —

Defendant’s convictions of two violations of G.S. 14-27.7 , for engaging in a sexual act and in intercourse with a person over whom his employer had custody, following his earlier acquittal of second degree rape under G.S. 14-27.3 and committing a sex act on a person who was physically helpless under this section, and vacation of his conviction of engaging in a sex act by force and against victim’s will in violation of this section did not violate the double jeopardy clauses of U.S. Const. Amend V and N.C. Const., Art. I, § 19, as the offenses that defendant was convicted of were not lesser included offenses of the crimes that he was earlier tried for. State v. Raines, 81 N.C. App. 299, 344 S.E.2d 138, 1986 N.C. App. LEXIS 2260 (1986), aff'd, 319 N.C. 258 , 354 S.E.2d 486, 1987 N.C. LEXIS 1932 (1987).

Defendant’s conviction of both the crime against nature and second degree sexual offense was not error because the crime against nature proscribed by G.S. 14-177 requires penetration of or by the sexual organ, while second degree sexual offense does not. State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434, 1986 N.C. App. LEXIS 2240 , writ denied, 317 N.C. 336 , 346 S.E.2d 503, 1986 N.C. LEXIS 2322 (1986).

Defendant’s claim that by failing to differentiate the various charges by providing different dates for the offenses and listing the underlying acts, the indictments opened the door to defendant being subjected to double jeopardy for the same acts on the same dates, was rejected because: (1) defendant’s indictments for statutory sexual offense, statutory sexual offense against a person who was 13, 14, or 15 years of age, and sexual offense were in compliance with the requirements of G.S. 15-144.2 , and the indictments matched the wording of N.C. G.S. 14-27.4(a)(1), G.S. 14-27.7 A(a), and G.S. 14-27.5(a)(1); (2) defendant’s indictments for the charges of taking indecent liberties with a child matched the wording of G.S.14-202.1(a)(2); and (3) defendant’s assault on a female indictments matched the wording of G.S. 14-33(c)(2); each of the indictments was sufficient to inform defendant of the charges against defendant, and defendant failed to show any deprivation of defendant’s ability to prepare a defense due to a lack of specificity in the indictments. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Minor plaintiffs’ action against their father for willfully assaulting, abusing, molesting and raping them was improperly dismissed under the provisions of G.S. 1A-1 , Rule 12(b)(6) on the ground that the action was barred by the parental immunity doctrine. Doe ex rel. Connolly v. Holt, 103 N.C. App. 516, 405 S.E.2d 807, 1991 N.C. App. LEXIS 794 (1991), aff'd, 332 N.C. 90 , 418 S.E.2d 511, 1992 N.C. LEXIS 372 (1992).

Doctrine of Parental Immunity Inapplicable. —

Where a father’s acts against his minor daughters constituted incest in violation of G.S. 14-178 , second degree rape in violation of G.S. 14-27.3 , and second degree sexual offense in violation of this section, and caused plaintiffs to suffer permanent physical, emotional and mental injuries the doctrine of parental immunity will not bar a civil suit against him. Doe ex rel. Connolly v. Holt, 103 N.C. App. 516, 405 S.E.2d 807, 1991 N.C. App. LEXIS 794 (1991), aff'd, 332 N.C. 90 , 418 S.E.2d 511, 1992 N.C. LEXIS 372 (1992).

Constructive Force. —

In prosecution on charge of second-degree sexual offense committed by the defendant against his 13-year-old son, constructive force reasonably could be inferred from the circumstances surrounding the parent-child relationship, where the defendant began abusing his son when the boy was only eight years old, the child was conditioned to succumb to the defendant’s illicit advances at an age when he could not yet fully comprehend the implication of the defendant’s conduct, not until he saw a film at school did the boy realize that the defendant’s behavior was considered improper and abusive, and the incidents of abuse all occurred while the boy lived as an unemancipated minor in the defendant’s household, subject to the defendant’s parental authority and threats of disciplinary action. State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

Trial court properly denied defendant’s motion to dismiss for insufficient evidence, as the State proved the element of force under G.S. 14-27.5 since in the case of a parent-child relationship, constructive force could be reasonably inferred from the circumstances surrounding the parent-child relationship, and in the instant case there was sufficient evidence from which a reasonable jury could have concluded that defendant used his position of power to force his stepdaughter to engage in sexual acts, including vaginal penetration. State v. Corbett, 154 N.C. App. 713, 573 S.E.2d 210, 2002 N.C. App. LEXIS 1525 (2002).

Juvenile Delinquency Adjudication. —

It was error for the court of appeals to vacate a juvenile’s delinquency adjudication based on a sexual battery charge on the grounds that a juvenile court counselor (JCC) did not comply with the timelines contained in G.S. 7B-1703 , when the JCC had filed a petition alleging the juvenile committed simple assault and then filed a second petition, based on the same incident, alleging the juvenile committed sexual battery, on the grounds that the alleged failure to comply with these timelines deprived the trial court of subject matter jurisdiction, because the legislature did not intend G.S. 7B-1703 ’s timing requirements to be jurisdictional, as the legislature did not mention jurisdiction in the statute or state a JCC’s failure to meet the statutory timing requirements divested a court of subject matter jurisdiction. In re D.S., 364 N.C. 184 , 694 S.E.2d 758, 2010 N.C. LEXIS 434 (2010).

Sufficiency of Indictment. —

Section 15-144.2(a) authorizes, for sexual offense, an abbreviated form of indictment which omits allegations of the particular elements that distinguish first-degree and second-degree sexual offense. State v. Berkley, 56 N.C. App. 163, 287 S.E.2d 445, 1982 N.C. App. LEXIS 2358 (1982).

In an indictment for second-degree sexual offense the statements regarding the victim’s and defendant’s ages did not render the indictment insufficient to charge a violation of this statute. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Indictment charging defendant with statutory sexual offense under G.S. 14-27.2 , statutory sexual offense of a person who was 13, 14, or 15 years of age under G.S. 14-27.7 A, taking indecent liberties with a child under G.S. 14-202.1 , and forcible sexual offense under G.S. 14-27.5 that did not list the specific underlying sexual acts was valid, as the jury was instructed on the specific sexual acts that were to serve as the underlying act for each charged offense; when a short form indictment properly alleged the essential elements of the offense, it did not have to allege every matter required to be proved on the trial under G.S. 15-144.2(a), and indictments charging indecent liberties with a child or a sexual offense were valid even when they did not contain a specific allegation regarding which specific sexual act was committed. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Where G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1), the statutes defining second-degree rape and second-degree sexual offense, required the offenses to be against “another person,” the indictments charging these offenses did not need to state the victim’s full name, nor did they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. Therefore, the test in Coker, that a person of common understanding would know the intent of the indictments, was met. State v. McKoy, 196 N.C. App. 650, 675 S.E.2d 406, 2009 N.C. App. LEXIS 533 (2009), cert. dismissed, 365 N.C. 339 , 731 S.E.2d 835, 2011 N.C. LEXIS 1168 (2011), cert. dismissed, 366 N.C. 405 , 735 S.E.2d 329, 2012 N.C. LEXIS 1131 (2012).

Where the statutes defining second-degree rape and second-degree sexual offense (G.S. 14-27.3 and G.S. 14-27.5 ) require the offenses to be against “another person,” the indictments charging these offenses do not need to state the victim’s full given name, nor do they need to add periods after each letter in initials in order to accomplish the common sense understanding that initials represent a person. An indictment for a statutory offense is generally sufficient when it charges the offense in the language of the statute. State v. McKoy, 196 N.C. App. 650, 675 S.E.2d 406, 2009 N.C. App. LEXIS 533 (2009), cert. dismissed, 365 N.C. 339 , 731 S.E.2d 835, 2011 N.C. LEXIS 1168 (2011), cert. dismissed, 366 N.C. 405 , 735 S.E.2d 329, 2012 N.C. LEXIS 1131 (2012).

Indictments tracked the statutory language of G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1). Therefore, “RTB” was sufficient to inform defendant that he was charged with second-degree rape and second-degree sexual offense against “another person.” State v. McKoy, 196 N.C. App. 650, 675 S.E.2d 406, 2009 N.C. App. LEXIS 533 (2009), cert. dismissed, 365 N.C. 339 , 731 S.E.2d 835, 2011 N.C. LEXIS 1168 (2011), cert. dismissed, 366 N.C. 405 , 735 S.E.2d 329, 2012 N.C. LEXIS 1131 (2012).

In order to determine if the lack of a victim’s full name renders indictments fatally defective, courts apply the tests set forth in Coker and Lowe to inquire (1) whether a person of common understanding would know that the intent of the indictments was to charge a defendant with second-degree rape and second-degree sexual offense, violations of G.S. 14-27.3 and G.S. 14-27.5 , and (2) whether a defendant’s constitutional rights to notice and freedom from double jeopardy were adequately protected by the use of the victim’s initials. State v. McKoy, 196 N.C. App. 650, 675 S.E.2d 406, 2009 N.C. App. LEXIS 533 (2009), cert. dismissed, 365 N.C. 339 , 731 S.E.2d 835, 2011 N.C. LEXIS 1168 (2011), cert. dismissed, 366 N.C. 405 , 735 S.E.2d 329, 2012 N.C. LEXIS 1131 (2012).

State submitted substantial evidence to show both that defendant, a salon’s massage therapist, had sexual contact with two female clients through the use of force and against their will, and, thus, committed two sexual batteries in violation of G.S. 14-27.5(a)(1), and that defendant while working at the salon was practicing massage therapy without a license in violation of G.S. 90-634(a)(1). As a result, dismissal of those charges on defendant’s motion was not warranted. State v. Viera, 189 N.C. App. 514, 658 S.E.2d 529, 2008 N.C. App. LEXIS 608 (2008).

In deciding whether a particular second-degree sex offense is especially heinous, atrocious or cruel, the facts should be compared with facts which are normally present in any second-degree sex offense, however the offense may be committed. State v. Atkins, 311 N.C. 272 , 316 S.E.2d 306, 1984 N.C. LEXIS 1735 (1984).

Motion to Dismiss Properly Denied. —

Trial court did not err in denying defendant’s motion to dismiss charges of second-degree rape and second-degree sexual offense, as there was evidence of force and constructive force by defendant, and the victim’s lack of consent to intercourse or a sexual act. State v. Norman, 227 N.C. App. 162, 741 S.E.2d 683, 2013 N.C. App. LEXIS 481 (2013).

Jury Instructions. —

In a prosecution for second-degree rape, incest, and second-degree sexual offense, the trial court did not err in using the term “victim,” as found in the pattern jury instructions, when describing the generic definitions of the crimes, as it was not thereby intimating any opinion as to whether defendant had committed the crimes. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Instruction Held to Deprive Defendant of Unanimous Verdict. —

The trial court committed reversible error in instructing the jury that it could convict defendant of first-degree sex offense if it found that he forced the victim to perform either fellatio or anal intercourse, as defendant had a constitutional right to be convicted by the unanimous verdict of a jury in open court, and under this instruction there was no way to tell whether defendant was convicted of second degree sexual offense because the jury unanimously agreed that defendant engaged in fellatio, anal intercourse, both fellatio and anal intercourse, or whether some members of the jury found that he engaged in fellatio but not anal intercourse, and some found that he engaged in anal intercourse but not fellatio. State v. Callahan, 86 N.C. App. 88, 356 S.E.2d 403, 1987 N.C. App. LEXIS 2658 (1987).

Failure to Instruct Jury Not to Consider Serious Injury Evidence Upheld. —

Where the defendant was charged with first-degree sexual offense, but he was convicted of second-degree sexual offense which does not include either use of a deadly weapon or the infliction of serious injury, the trial court did not err in failing to instruct the jury not to consider evidence of serious injury caused by the sexual offense in determining its verdict on the assault with a deadly weapon inflicting serious injury charge, for in convicting him of second-degree sexual offense the jury necessarily found that no serious injury was inflicted during that offense, and in convicting him of assault with a deadly weapon inflicting serious injury they necessarily found that the victim’s only serious injury was inflicted during the assault with the deadly weapon. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

Instruction Upheld Although Not Technically Correct. —

While instruction that the first element of attempted second-degree sexual offense is the intent of defendant to commit the offense by inserting his finger into the vaginal “area” was not technically correct, the jury, construing the charge contextually, must have understood that penetration of the vaginal “opening” was the necessary element of the crime. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Instructions on Attempting to Commit Offense Held Not Required. —

Where, in prosecution for second-degree sexual offense, the evidence as to penetration was not conflicting at all; for the victim testified that defendant repeatedly penetrated her with a cane, the physical findings testified to by the emergency room doctor who examined her bore her out, and no evidence to the contrary was presented, the court was not required to instruct the jury on attempting to commit the offense. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

Where the state’s evidence tended to show that defendant broke into and entered the victim’s home twice, and the second time got into the victim’s bed, kissed her and held her down while repeating: “I’ve been wanting you, and now I’m going to have you” and later, put his hand into the victim’s panties and said, “Here it is, I’m going to eat it,” and finally, stated he “might as well [go] ahead and rape you anyway,” there was sufficient evidence of defendant’s intent to engage in vaginal intercourse by force and against the will of the victim to have allowed the case to go to the jury. State v. Walton, 90 N.C. App. 532, 369 S.E.2d 101, 1988 N.C. App. LEXIS 568 (1988).

Variance in State’s Evidence Held Not a Deprivation of Rights. —

Where defendant did not present alibi evidence for the date alleged in the indictment charging him with second-degree sexual offense or for the dates shown by the State’s evidence, but simply denied committing the offense, the variation in the State’s evidence did not deprive him of his right adequately to present his defense or ensnare him in any way, and was not prejudicial. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Where there was conflicting evidence on defendant’s use of a knife, proof of which was necessary for a verdict of first-degree rape, victim testifying that defendant employed a knife during the act of rape, while defendant testified that there was no knife in his truck when the incident occurred, and no knife was ever located by investigating officers, the trial court properly included the lesser-included offenses of second-degree rape and second-degree sexual offense in its charge to the jury. State v. Watkins, 89 N.C. App. 599, 366 S.E.2d 876, 1988 N.C. App. LEXIS 355 (1988).

Young Victim’s Testimony Held Sufficient. —

Although the victim did not use the word “vagina,” or “genital area,” when describing the sexual assault perpetrated upon her, she did employ words commonly used by females of tender years to describe these areas of their bodies, of which they are just becoming aware, and her testimony was sufficient to require submission of defendant’s guilt of second-degree sexual offense to the jury. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

The court rejected the defendant’s contention that the juvenile court committed plain error in admitting the victim’s testimony since she was only four-years-old and was incompetent to testify, specifically, his argument that she did not clearly communicate her understanding of the obligation to tell the truth or illustrate that she had the capacity to understand and relate facts since she provided inaudible responses to questions. The victim’s story was consistent and corroborated by the testimony of her mother, her brother, her doctor, and the investigating officer and the evidence sufficiently demonstrated the use of force. In re Clapp, 137 N.C. App. 14, 526 S.E.2d 689, 2000 N.C. App. LEXIS 252 (2000).

Victim’s Testimony of Discrete Instances Sufficient. —

Denial of defendant’s motion to dismiss after he was indicted on multiple sexual offenses with a child under G.S. 14-27.4(a)(1), G.S. 14-27.5(a)(1), and G.S. 14-202.1(a) was proper because the victim clearly described discrete instances of different types of sexual acts perpetrated upon him by defendant over a long period of time. That evidence was sufficient to withstand the motion to dismiss. State v. Davis, 214 N.C. App. 175, 715 S.E.2d 189, 2011 N.C. App. LEXIS 1640 (2011).

Expert Testimony. —

Trial court did not err in allowing testimony by doctor that sexual abuse of child was very likely because the doctor was in a better position than the jury to understand the significance of her medical findings. State v. Dick, 126 N.C. App. 312, 485 S.E.2d 88, 1997 N.C. App. LEXIS 358 (1997).

In situations where a victim’s IQ falls within the range considered to be “mental retardation,” but the victim is highly functional in the victim’s daily activities and communication, the State must present expert testimony as to the extent of the victim’s mental disability as defined by G.S. 14-27.5 . State v. Hunt, 211 N.C. App. 452, 710 S.E.2d 339, 2011 N.C. App. LEXIS 826 (2011), rev'd, 365 N.C. 432 , 722 S.E.2d 484, 2012 N.C. LEXIS 125 (2012).

Ineffectiveness of Counsel Argument Rejected Where Evidence Sufficient. —

The evidence was sufficient under this section—even if the victim and her brother had been found incompetent to testify and thus, unavailable, because the victim’s mother testified that the three-year-old victim came out of the bedroom and told her that the twelve-year-old defendant made her take off her clothes and licked her private parts—and allegations as to ineffective assistance of counsel due to failure to object to the minors’ testimony were rejected where the result would not have been different had the attorney objected to its admission. In re Clapp, 137 N.C. App. 14, 526 S.E.2d 689, 2000 N.C. App. LEXIS 252 (2000).

Evidence held sufficient to show that defendant used force to commit two sexual acts with his 12-year-old daughter. State v. Britt, 80 N.C. App. 147, 341 S.E.2d 51, 1986 N.C. App. LEXIS 2149 (1986).

Admission to One Element of Offense Did Not Amount to Ineffective Assistance. —

Despite defense counsel’s statement he was not conceding any element of second-degree sex offense, having made statements regarding consent and sexual contact, counsel made no admission of guilt and caselaw did not support defendant’s argument that an admission of an element of the charge violated his Sixth Amendment rights. State v. Crump, 273 N.C. App. 336, 848 S.E.2d 501, 2020 N.C. App. LEXIS 634 (2020).

Ineffective Assistance Of Counsel Not Shown. —

Defendant did not receive ineffective assistance of counsel when trial counsel asked defendant on direct examination if he had “ever done such a thing before,” despite knowing of other sexual offense charges pending against defendant because the evidence about the other pending sexual offense charges did not likely affect the jury’s verdicts; defendant admitted to engaging in a sex act with the victim, and substantial evidence of the victim’s mental disability was presented. State v. Hunt, 221 N.C. App. 489, 728 S.E.2d 409, 2012 N.C. App. LEXIS 875 (2012), aff'd in part, 367 N.C. 700 , 766 S.E.2d 288, 2014 N.C. LEXIS 945 (2014).

As the trial court erred it determining that defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to register as a sex offender for life pursuant to G.S. 14-208.23 . State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Although second-degree sexual offense, G.S. 14-27.5 , is a “sexually violent offense,” it cannot be an “aggravated offense” as defined by G.S. 14-208.6(1a), because vaginal, anal, or oral penetration are not elements of that offense. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

“Aggravated Offense.” —

As the trial court erred it determining that defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to enroll in lifetime satellite-based monitoring under G.S. 14-208.40 A. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Proof of Aggravating Factors. —

Trial court erred in finding an aggravating factor in defendant’s prosecution for second degree sexual offense, G.S. 14-27.5; evidence necessary to prove an element of the offense could not be used to prove any factor in aggravation, G.S. 15A-1340.16(d), and to prove the element of force, the State used the same evidence used to prove that defendant took advantage of a position of trust as an aggravating factor. State v. Corbett, 154 N.C. App. 713, 573 S.E.2d 210, 2002 N.C. App. LEXIS 1525 (2002).

Sexual Battery Not an Aggravated Offense for Purposes of Satellite-Based Monitoring Finding. —

Trial court erred in determining that sexual battery under G.S. 14-27.5 A was an aggravated offense for purposes of satellite-based monitoring program under G.S. 14-208.40 B because an aggravated offense required engaging in a sexual act involving vaginal, anal, or oral penetration through the use of force, pursuant to G.S. 14-208.6(1a), and sexual battery did not require vaginal, anal, or oral penetration. State v. Brooks, 204 N.C. App. 193, 693 S.E.2d 204, 2010 N.C. App. LEXIS 822 (2010).

Evidence Failed to Show Victim Was “Physically Helpless.” —

Defendant’s conviction for second-degree rape was reversed, because the State proceeded only under G.S. 14-27.3(a)(2) and G.S. 14-27.5(a)(2), based on a theory that the victim was “physically helpless,” but the State was unable to support that theory. Evidence that defendant pinned the victim in a submissive hold and tied her hands behind her back was not a unique and personal attribute of the victim but rather more indicative of the use of force. State v. Huss, 223 N.C. App. 480, 734 S.E.2d 612, 2012 N.C. App. LEXIS 1300 (2012), aff'd, 367 N.C. 162 , 749 S.E.2d 279, 2013 N.C. LEXIS 1160 (2013).

Evidence held sufficient to support conviction of second-degree sexual offense. State v. Moorman, 82 N.C. App. 594, 347 S.E.2d 857, 1986 N.C. App. LEXIS 2605 (1986), writ denied, 318 N.C. 699 , 351 S.E.2d 737, 1986 N.C. LEXIS 2772 (1986), rev'd, 320 N.C. 387 , 358 S.E.2d 502, 1987 N.C. LEXIS 2288 (1987).

Evidence of penetration held sufficient to support conviction of second-degree sexual offense. State v. Oliver, 85 N.C. App. 1, 354 S.E.2d 527, 1987 N.C. App. LEXIS 2586 , writ denied, 320 N.C. 174 , 358 S.E.2d 65, 1987 N.C. LEXIS 2182 (1987).

Where defendant entered a hospital in the middle of the night and went into the room of a patient whom he had never seen before, a jury could reasonably find that his actions in pulling back the bedclothing, pulling up the victim’s gown, and pulling her panties aside amounted to actual physical “force” as that term is to be applied in sexual offense cases. State v. Brown, 332 N.C. 262 , 420 S.E.2d 147, 1992 N.C. LEXIS 482 (1992).

Where victim testified that after defendant made her take a shower and douche at his parents’ house, “he made her perform oral sex on him, but she gagged herself so he would let her stop. . . . He forced her head down and made her place her mouth around his penis, and then she proceeded to try and throw up,” this testimony constituted relevant evidence that a reasonable mind might accept as adequate to support the conclusion that defendant forced victim to engage in fellatio against her will; the court, therefore, did not err in denying defendant’s motion to dismiss the charge of second-degree sexual offense. State v. Easterling, 119 N.C. App. 22, 457 S.E.2d 913, 1995 N.C. App. LEXIS 397 (1995).

Evidence was sufficient where victim testified that penetration had occurred, there was medical evidence, and other corroborative evidence by a police officer, social workers, and victim’s foster mother. State v. Dick, 126 N.C. App. 312, 485 S.E.2d 88, 1997 N.C. App. LEXIS 358 (1997).

Testimony of child along with medical evidence of penetration and corroborative evidence by police officer, social workers and child’s foster mother constituted sufficient evidence for conviction. State v. Dick, 126 N.C. App. 312, 485 S.E.2d 88, 1997 N.C. App. LEXIS 358 (1997).

Victim’s testimonial evidence of being thrown on a bed by defendant juvenile, of being restrained during a sexual assault, and of being threatened if he reported the assault was sufficient to sustain defendant’s conviction for second-degree sexual assault in violation of G.S. 14-27.5(a). State v. Tucker, 154 N.C. App. 653, 573 S.E.2d 197, 2002 N.C. App. LEXIS 1540 (2002).

Trial court properly denied defendant’s motion to dismiss, pursuant to G.S. 15A-954 , with respect to sexual offense charges against him which he allegedly committed against his 16-year-old daughter, as the evidence was sufficient to support the jury verdict, finding defendant guilty of second-degree sexual offense in violation of G.S. 14-27.5 , where he physically and sexually attacked her; defendant’s claim that there were inconsistencies in the testimony and a lack of physical evidence to bolster the victim’s testimony lacked merit, as there was no physical evidence bolstering requirement, and inconsistencies were for the jury to resolve. State v. Dorton, 172 N.C. App. 759, 617 S.E.2d 97, 2005 N.C. App. LEXIS 1794 (2005).

Evidence that defendant committed several overt acts, including touching the victim’s breast and vaginal areas, demonstrated intent to commit a sexual act against the victim without her consent sufficient to support the charge of attempted second degree sex offense. State v. Buff, 170 N.C. App. 374, 612 S.E.2d 366, 2005 N.C. App. LEXIS 998 (2005).

Evidence was sufficient to convict defendant of 10 counts of second-degree sexual offense, as there was evidence of fellatio and digital penetration, and that the victim, his adult granddaughter, was mildly retarded and would have found it difficult to disobey an authority figure. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Evidence was sufficient to convict defendant of 10 counts of second-degree sexual offense, despite conflicting evidence as to penetration during vaginal intercourse, was as there was evidence of fellatio and digital penetration, and neither “intercourse” nor “penetration” is an element of second-degree sexual offense, State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Defendant’s conviction for second-degree sexual assault was affirmed because the defendant’s videotaped statement made in the back of a patrol car during a conversation with an officer was admissible; the defendant was not being interrogated by the officer at the time and Miranda warnings therefor were not required, the statement was relevant to the crime, and the danger of unfair prejudice did not substantially outweigh the probative value of the evidence. State v. Gantt, 161 N.C. App. 265, 588 S.E.2d 893, 2003 N.C. App. LEXIS 2055 (2003).

Right to Unanimous Jury Verdict not Violated. —

Defendant was not deprived of defendant’s right to a unanimous jury verdict as to charges of first-degree statutory sexual offense under G.S. 14-27.2 , statutory sexual offense against a person who was 13, 14, or 15 years old under G.S. 14-27.4(a)(1), taking indecent liberties with a child under G.S. 14-202.1 , second-degree forcible sexual offense under G.S 14-27.5, and assault on a female by a male at least 18 years of age under G.S. 14-33(c)(2) as: (1) the indictments were valid absent the inclusion of the specific acts that constituted the alleged sexual offenses; (2) the jury instructions and verdict sheets for each offense specifically identified each case by its number, listed the date on which each offense was alleged to have occurred, and listed the specific acts which were to serve as the underlying basis for each offense; (3) the jury was instructed specifically in each case in which defendant was charged with multiple counts of the same offense involving the same victim; (4) there was nothing in the record to indicate that the jury was confused by either the trial court’s instructions or the verdict sheets; and (5) the jury was polled following the announcement of the verdicts. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Child and the child’s brother were properly adjudicated to be abused, under G.S. 7B-101(1)(d), because the evidence showed the child’s mother and stepfather allowed the brother to commit G.S. 14-27.3 second-degree statutory rape and G.S. 14-27.5 second-degree statutory sexual offense against the child, despite being made aware of the conduct. In re M.A.E. (July 21, 2015).

Sentencing Enhancement Based on Foreign Conviction. —

Defendant’s South Carolina third degree criminal sexual conduct conviction was substantially similar to North Carolina second-degree forcible rape and second-degree forcible sexual offense because (1) second-degree forcible rape and second-degree forcible sexual offense had identical elements except the underlying sexual conduct, and (2) South Carolina’s definition of “sexual battery” included vaginal intercourse as well as all conduct constituting a “sexual act” in North Carolina. State v. Bryant, 255 N.C. App. 93, 804 S.E.2d 563, 2017 N.C. App. LEXIS 656 (2017).

Verdict Not Inconsistent. —

Trial court did not err by accepting the jury’s verdicts finding defendant guilty of first-degree rape and second-degree sexual offense, as the jury could have determined defendant inflicted serious personal injuries on the victim to overcome her resistance to being raped and that he had committed the second-degree sexual offense, by forcing his penis into her mouth. State v. Brake, 2021-NCCOA-496, 279 N.C. App. 416, 865 S.E.2d 716, 2021- NCCOA-496, 2021 N.C. App. LEXIS 499 (2021).

§ 14-27.28. Statutory sexual offense with a child by an adult.

  1. A person is guilty of statutory sexual offense with a child by an adult if the person is at least 18 years of age and engages in a sexual act with a victim who is a child under the age of 13 years.
  2. A person convicted of violating this section is guilty of a Class B1 felony and shall be sentenced pursuant to Article 81B of Chapter 15A of the General Statutes, except that in no case shall the person receive an active punishment of less than 300 months, and except as provided in subsection (c) of this section. Following the termination of active punishment, the person shall be subject to enrollment in satellite-based monitoring as provided in Part 5 of Article 27A of Chapter 14 of the General Statutes.
  3. Notwithstanding the provisions of Article 81B of Chapter 15A of the General Statutes, the court may sentence the defendant to active punishment for a term of months greater than that authorized pursuant to G.S. 15A-1340.17 , up to and including life imprisonment without parole, if the court finds that the nature of the offense and the harm inflicted are of such brutality, duration, severity, degree, or scope beyond that normally committed in such crimes, or considered in basic aggravation of these crimes, so as to require a sentence to active punishment in excess of that authorized pursuant to G.S. 15A-1340.17 . If the court sentences the defendant pursuant to this subsection, it shall make findings of fact supporting its decision, to include matters it considered as egregious aggravation. Egregious aggravation can include further consideration of existing aggravating factors where the conduct of the defendant falls outside the heartland of cases even the aggravating factors were designed to cover. Egregious aggravation may also be considered based on the extraordinarily young age of the victim, or the depraved torture or mutilation of the victim, or extraordinary physical pain inflicted on the victim.
  4. The offense under G.S. 14-27.29 is a lesser included offense of the offense in this section.

History. 2008-117, s. 2; 2015-181, s. 10(a), (b); 2021-182, s. 2(l).

Editor’s Note.

This section was formerly codified as G.S. 14-27.4 A. It was recodified as G.S. 14-27.28 by Session Laws 2015-181, s. 10(a), effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 10(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2021-182, s. 2(m), made the amendments to subsection (b) of this section by Session Laws 2021-182, s. 2(l), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Effect of Amendments.

Session Laws 2015-181, s. 10(b), effective December 1, 2015, rewrote the section heading, which read: “Sexual offense with a child; adult offender”; substituted “statutory sexual offense with a child by an adult” for “sexual offense with a child” in subsection (a); and substituted “G.S. 14-27.29” for “G.S. 14-27.4(a)(1)” in subsection (d). For applicability, see editor’s note.

Session Laws 2021-182, s. 2( l ), in subsection (b), substituted “subject to enrollment in satellite-based monitoring as provided in” for “enrolled for life pursuant to.” For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For article, “Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina,” see 38 Campbell L. Rev. 151 (2016).

CASE NOTES

Lesser Included Offenses. —

Because the indicted charge, G.S. 14-27.4(a)(1), was a lesser included offense of this section, the indictment did not allege all the elements of the crime set out in this section, the crime of which defendant was convicted, and therefore the judgment was vacated. Because the indictment sufficiently alleged the lesser included offense of first degree sexual offense under G.S. 14-27.4(a)(1), and the jury’s verdict on the greater offense of sexual offense with a child necessarily included a determination by the jury that the defendant was guilty of that lesser included offense, the court remanded for entry of judgment and resentencing on the charge. of first degree sexual offense in violation of G.S. 14-27.4(a)(1). State v. Hicks, 239 N.C. App. 396, 768 S.E.2d 373, 2015 N.C. App. LEXIS 71 , cert. denied, 368 N.C. 267 , 772 S.E.2d 731, 2015 N.C. LEXIS 540 (2015).

Sufficiency of Indictment. —

Superseding indictment upon which defendant was tried and convicted of first-degree sex offense with a child was facially defective, and thus failed to establish jurisdiction in the trial court, because the indictment did not name the victim, but identified the alleged victim only as “Victim #1.” State v. White, 372 N.C. 248 , 827 S.E.2d 80, 2019 N.C. LEXIS 376 (2019).

Evidence Sufficient. —

Defendant’s motion to dismiss charge of sexual offense with a child was properly denied, because defendant’s confession was supported by substantial independent evidence tending to establish its trustworthiness, including facts tending to show defendant had the opportunity to commit the crime and there was strong corroboration of the essential facts and circumstances embraced in defendant’s confession. Although the victim did not testify to fellatio during trial she did, prior to trial, inform two others that defendant made her perform fellatio. State v. Sweat, 216 N.C. App. 321, 718 S.E.2d 655, 2011 N.C. App. LEXIS 2235 (2011), aff'd in part and rev'd in part, 366 N.C. 79 , 727 S.E.2d 691, 2012 N.C. LEXIS 416 (2012).

Appellate court erred in granting defendant a new trial on two convictions of sexual offense of a child, because defendant confessed to four incidents of fellatio with victim and the State presented sufficient evidence of trustworthiness of defendant’s confession to all four incidents, including that defendant’s confession contained details likely to be known only to perpetrator and evidence that defendant had an opportunity to commit the crime. State v. Sweat, 366 N.C. 79 , 727 S.E.2d 691, 2012 N.C. LEXIS 416 (2012).

Sufficient evidence existed to support the denial of defendant’s motion to dismiss a first-degree sexual offense with a child charge because the minor victim, during the victim’s remote testimony discussed and demonstrated how defendant undressed and inserted a finger into the victim, a doctor who examined the victim a day after the incident opined that a penetrating injury had occurred, and the responding police officer and a police detective testified as to the statements which the victim made of defendant touching the victim’s genital area. State v. Phachoumphone, 257 N.C. App. 848, 810 S.E.2d 748, 2018 N.C. App. LEXIS 90 (2018).

Sufficient evidence supported defendant’s conviction for attempted sexual offense because defendant’s attempt to engage in a sexual act with a victim when defendant put defendant’s hand between a victim’s legs and tried to push defendant’s hand up the victim’s skirt and a conclusion that this was an overt act exceeding mere preparation could be reasonably inferred, as well as, on another occasion, defendant’s intent to engage in a sex offense and overt act towards achieving this end. State v. Bauguss, 265 N.C. App. 33, 827 S.E.2d 127, 2019 N.C. App. LEXIS 341 (2019).

Sufficient evidence supported defendant’s conviction for statutory sexual offense because defendant’s plan with the victim’s mother to engage in sexual acts with the victim could be reasonably inferred, as well as defendant’s encouraging the mother to perform such acts on the victim, showing defendant aided and abetted in the mother’s sexual crimes. State v. Bauguss, 265 N.C. App. 33, 827 S.E.2d 127, 2019 N.C. App. LEXIS 341 (2019).

Evidence was sufficient to convict defendant of four charges of statutory sex offense with a child under 13 by an adult because penetrating a victim’s labia constituted a sexual act; and, while there was no evidence defendant inserted his fingers into the child victim’s vagina, there was evidence that he penetrated her labia by rubbing his fingers in circles on her vulva. State v. Burns, 278 N.C. App. 718, 862 S.E.2d 431, 2021- NCCOA-404, 2021 N.C. App. LEXIS 423 (2021).

Evidence was sufficient to convict defendant of four charges of statutory sex offense with a child under 13 by an adult because penetrating a victim’s labia constituted a sexual act; and, while there was no evidence defendant inserted his fingers into the child victim’s vagina, there was evidence that he penetrated her labia by rubbing his fingers in circles on her vulva. State v. Burns, 278 N.C. App. 718, 862 S.E.2d 431, 2021- NCCOA-404, 2021 N.C. App. LEXIS 423 (2021).

Evidence Insufficient. —

There was insufficient evidence to support one of the counts of sexual offense, as there was no evidence to support a finding that the charged conduct occurred in the alleged county. State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Trial court erred in granting defendant appropriate relief because the original 300-month sentence did not violate the Eighth Amendment rape of a child and sexual offense with a child carried a mandatory minimum sentence of 300 months imprisonment, and defendant’s 300-month sentence was less than or equal to the sentences of many other offenders of the same crime. State v. Thomsen, 242 N.C. App. 475, 776 S.E.2d 41, 2015 N.C. App. LEXIS 677 (2015), aff'd, 369 N.C. 22 , 789 S.E.2d 639, 2016 N.C. LEXIS 651 (2016).

Satellite-Based Monitoring. —

State did not establish that defendant’s enrollment in the satellite based monitoring (SBM) program for the remainder of his life constituted a reasonable Fourth Amendment search; defendant was ordered to enroll due to his offenses in violation of G.S. 14-27.28 , there was no evidence to support the State’s need to perpetually monitor defendant, who would be at least 89 years old upon his release, and the State failed to show how monitoring his movements for the rest of his life would deter future offenses. State v. Thompson, 273 N.C. App. 686, 852 S.E.2d 365, 2020 N.C. App. LEXIS 706 (2020).

Sentence Enhancement Based on Foreign Conviction. —

Defendant’s South Carolina first degree criminal sexual conduct with minors conviction was not substantially similar to North Carolina statutory rape of a child by an adult or statutory sexual offense with a child by an adult because the statutes’ disparate age requirements created different offenders and different victims. State v. Bryant, 255 N.C. App. 93, 804 S.E.2d 563, 2017 N.C. App. LEXIS 656 (2017).

Instructional Error.

Trial court committed plain error by instructing the jury on “sexual offense with a child; adult offender” in violation of G.S. 14-27.28 , where the indictment charged defendant pursuant to G.S. 14-27.4(a)(1), first-degree sexual offense. State v. Harris, 243 N.C. App. 728, 778 S.E.2d 875, 2015 N.C. App. LEXIS 896 (2015).

Defendant’s rights under the Sixth Amendment were violated because the court was permitted to increase the penalty beyond a prescribed statutory maximum without submitting the issue to a jury for proof beyond a reasonable doubt, and thus, resentencing was necessary. State v. Singletary, 247 N.C. App. 368, 786 S.E.2d 712, 2016 N.C. App. LEXIS 500 (2016).

§ 14-27.29. First-degree statutory sexual offense.

  1. A person is guilty of first-degree statutory sexual offense if the person engages in a sexual act with a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim.
  2. Any person who commits an offense defined in this section is guilty of a Class B1 felony.

History. 1979, c. 682, s. 1; 1979, 2nd Sess., c. 1316, s. 6; 1981, c. 63; c. 106, ss. 3, 4; c. 179, s. 14; 1983, c. 175, ss. 5, 10; c. 720, s. 4; 1994, Ex. Sess., c. 22, s. 3; 2015-181, s. 11.

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

As to essentials of bill of indictment for sexual offense, see G.S. 15-144.2 .

As to venue of trial of sex offenses where victim was transported, see G.S. 15A-136 .

As to office of coordinator of services for victims of sexual assault, see G.S. 143B-394.1 et seq.

Editor’s Note.

Session Laws 2015-181, s. 48, made the enactment of this section by Session Laws 2015-181, s. 11, effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note that addresses the effect of a recent United States Supreme Court decision on sodomy laws and the manner in which society may shape its characterization of Acquired Immune Deficiency Syndrome (AIDS) and homosexuality, see 66 N.C.L. Rev. 226 (1987).

For comment, “The Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

CASE NOTES

Analysis

I.General Consideration

Constitutionality. —

This statute sufficiently appraises defendants of prohibited conduct and is not void for vagueness. State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42, 1998 N.C. App. LEXIS 1157 (1998).

Effect of G.S. 14-27.7 . —

Argument that an indictment under this section was subject to dismissal on grounds that the section had been partially repealed by G.S. 14-27.7 was without merit, since the two statutes were enacted as parts of the same legislative act, Session Laws 1979, c. 682, and an intent to simultaneously enact and repeal a law could not be attributed to the General Assembly. State v. Nations, 319 N.C. 318 , 354 S.E.2d 510, 1987 N.C. LEXIS 1934 (1987).

Inapplicability of Committed Youthful Offender Statute. —

Article 3B of Chapter 148 does not apply to a conviction or plea of guilty of a sexual offense in the first degree, for which the punishment is mandatory life imprisonment. State v. Browning, 321 N.C. 535 , 364 S.E.2d 376, 1988 N.C. LEXIS 110 (1988); State v. Rhinehart, 322 N.C. 53 , 366 S.E.2d 429, 1988 N.C. LEXIS 127 (1988).

Indians. —

This section does not apply where the alleged acts were those of one Indian against another Indian within Indian country. United States v. Welch, 822 F.2d 460, 1987 U.S. App. LEXIS 8478 (4th Cir. 1987).

Mandatory Life Imprisonment Not Cruel and Unusual. —

The imposition of a mandatory sentence of life imprisonment for first-degree sexual offense is not so disproportionate as to constitute a violation of U.S. Const., Amend. VIII. State v. Higginbottom, 312 N.C. 760 , 324 S.E.2d 834, 1985 N.C. LEXIS 1498 (1985).

The mandatory life sentence for first-degree sexual offense is constitutional. State v. Cooke, 318 N.C. 674 , 351 S.E.2d 290, 1987 N.C. LEXIS 1769 (1987).

Imposition of sentences of life imprisonment for first degree rape and first degree sexual offense does not violate the prohibition against cruel and unusual punishments. State v. Spaugh, 321 N.C. 550 , 364 S.E.2d 368, 1988 N.C. LEXIS 101 (1988).

The mandatory life sentence for first-degree sexual offense does not constitute cruel and unusual punishment. State v. Joyce, 97 N.C. App. 464, 389 S.E.2d 136, 1990 N.C. App. LEXIS 164 (1990), cert. denied, 339 N.C. 619 , 454 S.E.2d 263, 1995 N.C. LEXIS 38 (1995); State v. Young, 103 N.C. App. 415, 406 S.E.2d 3, 1991 N.C. App. LEXIS 797 (1991).

A life sentence for first-degree sexual offense does not constitute cruel and unusual punishment. State v. Green, 124 N.C. App. 269, 477 S.E.2d 182, 1996 N.C. App. LEXIS 1055 (1996), aff'd, 348 N.C. 588 , 502 S.E.2d 819, 1998 N.C. LEXIS 364 (1998).

First and Second Degree Offenses Distinguished. —

A second-degree offense differs from a first-degree offense only in the absence of the alternative elements of aiding and abetting, use or display of a deadly weapon, or infliction of serious bodily injury. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Where the only theory that would sustain defendant’s conviction of a sexual offense was aiding and abetting, defendant could only be tried for a first-degree sexual offense and the court’s instruction on second-degree sexual offense was error, since the offense is always first degree when aiding and abetting is proven. State v. Barnette, 304 N.C. 447 , 284 S.E.2d 298, 1981 N.C. LEXIS 1359 (1981).

Taking Indecent Liberties Not Lesser Included Offense. —

In a prosecution of defendant under subsection (a) of this section for engaging in a sexual act with children under 12 (now under 13 years of age), the trial court did not err in failing to instruct on taking indecent liberties with children in violation of G.S. 14-202.1 , since taking indecent liberties with children is not a lesser included offense of the crime proscribed by subsection (a). State v. Williams, 303 N.C. 507 , 279 S.E.2d 592, 1981 N.C. LEXIS 1195 (1981).

The definitional elements of first-degree sex offense and indecent liberties are different; therefore, defendant’s conviction of first-degree sex offense and indecent liberties did not contravene his constitutional protection against double jeopardy. State v. Manley, 95 N.C. App. 213, 381 S.E.2d 900, 1989 N.C. App. LEXIS 662 (1989).

The indictments against the defendant for first-degree sexual offense and for indecent liberties with a child were upheld in spite of his allegations that they were defective as a matter of law in not setting out each element of the offenses. State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794, 2000 N.C. App. LEXIS 1301 (2000).

Crime against nature is not a lesser included offense of first or second degree sexual offense. State v. Warren, 309 N.C. 224 , 306 S.E.2d 446, 1983 N.C. LEXIS 1387 (1983). See also, State v. Barrett, 307 N.C. 126 , 302 S.E.2d 632, 1982 N.C. LEXIS 1835 (1982); State v. Jordan, 321 N.C. 714 , 365 S.E.2d 617, 1988 N.C. LEXIS 233 (1988).

Assault on Female Not Lesser Included Offense. —

To convict for first-degree sexual offense, it need not be shown that the victim is a female, that the defendant is a male, or that the defendant is at least 18 years of age. Therefore, the crime of assault on a female has at least three elements not included in the crime of first-degree sexual offense and cannot be a lesser included offense of first-degree sexual offense. State v. Bagley, 321 N.C. 201 , 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988).

Defendant may be convicted of kidnapping and of sexual assault where restraint or asportation of victim is separate, complete act, independent of and apart from sexual assault. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Separate Crimes Arising out of Same Events. —

Defendants’ convictions of both first degree kidnapping and rape against one victim and of first-degree kidnapping and both first degree rape and first-degree sex offense against the other could not all stand, even though the combination of convictions, because of the manner in which they were consolidated for judgment, resulted in no additional punishment attributable to any of the kidnapping cases, where it could not be said that the jury’s verdict of first-degree kidnapping was based upon a sexual assault other than the ones forming the basis for the other convictions. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

Punishment for Both First-Degree Kidnapping and Sexual Assault Held Error. —

The guarantee against double jeopardy under U.S. Const., Amend. V protects against multiple punishments for the same offense. Defendant may not be punished for both first-degree kidnapping and sexual assault, where sexual assault is used to elevate kidnapping to first degree. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Where defendant was convicted and sentenced for sexual assault and first-degree kidnapping predicated on one sexual assault, trial court was required to arrest judgment either on conviction of sexual assault or on conviction of first-degree kidnapping. Defendant could be resentenced for second-degree kidnapping, if judgment on first-degree kidnapping was arrested. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Separate Sentences for Offenses Based on Same Acts. —

Imposition of sentences for first-degree sexual offenses as well as offenses of taking of indecent liberties with a child, based on the same acts, did not constitute double jeopardy, as the elements of the two crimes are different. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Defendant’s right to a unanimous jury verdict was jeopardized by the trial court’s failure to ensure that each juror had in mind the same instances of abuse when voting to convict defendant. State v. Bates, 172 N.C. App. 27, 616 S.E.2d 280, 2005 N.C. App. LEXIS 1585 (2005).

II.Elements of Offense

Legislative Intent to Distinguish Offenses. —

The intent of the legislature when it employed the term “vaginal intercourse” in former G.S. 14-21.1 was not to change the traditional elements of rape but to distinguish that offense from other sexual offenses now included within this section. State v. Johnson, 317 N.C. 417 , 347 S.E.2d 7, 1986 N.C. LEXIS 2396 (1986).

State’s Burden of Proof. —

To convict a defendant of a first-degree sexual offense with a child of 12 years or less (now under the age of 13 years), the State need only prove that (1) the defendant engaged in a “sexual act,” (2) the victim was at the time of the act 12 years old or less, and (3) the defendant was at the time four or more years older than the victim. State v. Ludlum, 303 N.C. 666 , 281 S.E.2d 159, 1981 N.C. LEXIS 1199 (1981).

Failure to Allege Age Deemed Fatal. —

Four petitions, brought pursuant to this section, failed to state the respondent’s alleged misconduct with particularity, as they did not contain the crucial allegations of the age of the victim and the respondent and, therefore, were dismissed as fatally defective. In re Jones, 135 N.C. App. 400, 520 S.E.2d 787, 1999 N.C. App. LEXIS 1158 (1999).

Sexual Purpose. —

Neither the first-degree sexual offense statute nor the crime against nature statute contains a sexual purpose requirement; because the North Carolina General Assembly included this requirement in the indecent liberties statute, but omitted it from these other sex offense statutes, it was concluded that the omission was intentional. Therefore, an argument by appellant, a juvenile, that the State failed to present evidence of “sexual purpose” with respect to the first-degree sexual offense and crime against nature charges was meritless. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

The term “sexual act,” as used in this section, means cunnilingus, fellatio, analingus, or anal intercourse. It also means the penetration, however slight, by any object into the genital or anal opening of another person’s body. State v. DeLeonardo, 315 N.C. 762 , 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

Penetration. —

Where the evidence showed that defendant ordered the victim to drop her pants and underwear at gunpoint and asked her to spread open her labia so he could inspect her vagina and defendant then used the barrel of his gun to separate her labia and the victim testified that she felt the gun up against her private area right where her tampon would be entered, such evidence was sufficient to support a finding that a penetration occurred under G.S. 14-27.1(4) to support defendant’s conviction for first degree sexual offense, despite defendant changing his mind about pursuing any further contact with the victim upon discovering the tampon. State v. Bellamy, 172 N.C. App. 649, 617 S.E.2d 81, 2005 N.C. App. LEXIS 1793 (2005).

When considered with the evidence that a victim suffered extensive damage to her outer genital and rectal areas, the State’s evidence gave rise to a reasonable inference that the victim’s colon injury was the result of the penetration of an object into her rectum, as defined in G.S. 14-27.4(a)(2). Therefore, the State introduced substantial evidence on the charge of first-degree sexual offense, and the trial court did not err in denying defendant’s motion to dismiss. State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701, 2008 N.C. App. LEXIS 431 (2008).

Act of forcing a victim to self-penetrate constitutes engaging in a sexual act with another person and against the will of the other person. State v. Green, 229 N.C. App. 121, 746 S.E.2d 457, 2013 N.C. App. LEXIS 891 (2013).

Penetration was a required element of the offense of crime against nature, but it was not a required element of first-degree sexual offense; therefore, adjudications of delinquency could not have been upheld for crime against nature offenses where there was no evidence of penetration. The victim stated that he was asked to “lick” the penis of appellant, a juvenile; an inference of penetration could not have been drawn because it conflicted with the victim’s direct testimony. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

Fellatio is any touching of the male sexual organ by the lips, tongue, or mouth of another person. State v. Johnson, 105 N.C. App. 390, 413 S.E.2d 562, 1992 N.C. App. LEXIS 226 (1992).

Lack of Consent Essential. —

Both a first and second-degree sexual offense, insofar as they may be committed against an adult not physically or mentally handicapped, have as an essential element the lack of the victim’s consent because they must be committed “by force and against the will” of the victim. State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982).

Although the victim was a prostitute and initially sought a sexual encounter for payment, the victim’s fear of defendant was specific to the events leading to defendant’s sexual assaults on and murder of her, so that a jury could reasonably find that there was substantial evidence that the victim withdrew any prior consent to the sexual acts. State v. Penland, 343 N.C. 634 , 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Crime Actively Encouraged by Victim. —

The defendant was not guilty of a first-degree sexual offense where the victim actively encouraged and ultimately induced the defendant to commit the crime of fellatio on him for the purpose of documenting certain facts relative to their relationship and not for the purpose of having the defendant arrested for his acts. State v. Booher, 305 N.C. 554 , 290 S.E.2d 561, 1982 N.C. LEXIS 1350 (1982).

Use of Force. —

Phrase “by force and against her will,” (now “by force and against the will of the other person”) used in this section, G.S. 14-27.2 , 14-27.3, and 14-27.5, means the same as it did at common law when it was used to describe some of the elements of rape. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981).

Actual Physical Force Not Required. —

Under the sexual offense statutes, actual physical force is not required to satisfy the statutory requirement that the sexual act be committed “by force and against the will” of the victim. Fear of serious bodily harm reasonably engendered by threats or other actions of a defendant and which causes the victim to consent to the sexual act takes the place of force and negates the consent. State v. Locklear, 304 N.C. 534 , 284 S.E.2d 500, 1981 N.C. LEXIS 1365 (1981).

Nor is medical evidence of penetration, such as bruising or tearing, required to support a conviction of first-degree sexual offense. State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Force and Lack of Consent Are Implied when Victim Is Incapacitated. —

It makes no difference in the case of a sleeping or similarly incapacitated victim whether the State proceeds on the theory of a sexual act committed by force and against the victim’s will or whether it alleges an incapacitated victim; force and lack of consent are implied in law. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

The phrase “by force and against the will” used in the first and second-degree rape statutes and the first and second-degree sexual offense statutes means the same as it did at common law when it was used to describe some of the elements of rape. State v. Dillard, 90 N.C. App. 318, 368 S.E.2d 442, 1988 N.C. App. LEXIS 529 (1988).

Whether Sexual Act Committed While Victim Was Alive or Dead Was Irrelevant. —

Where the sexual act was committed during a continuous transaction that began when the victim was alive, the evidence was sufficient to support defendant’s conviction for first-degree sexual offense; the precise timing of the sexual act was irrelevant if it occurred during a continuous transaction. All of the evidence clearly suggested that the sexual offense and the death of the victim were so connected as to form a continuous chain of events. State v. Thomas, 329 N.C. 423 , 407 S.E.2d 141, 1991 N.C. LEXIS 530 (1991).

Intent to commit the crime of sexual offense is inferred from the commission of the act. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Intoxication Not a Defense. —

Since intent is not an essential element of the crime of first-degree sexual offense, intoxication is not a defense of that crime. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Dangerous or Deadly Weapon. —

Trial court erred by denying defendant’s motions to dismiss the charges of first-degree rape and first-degree sexual offense because the State of North Carolina failed to offer any evidence tending to show that defendant employed or displayed a dangerous or deadly weapon or an article which the victim reasonably believed was a dangerous or deadly weapon, as required by G.S. 14-27.2(a)(2)(a) and G.S. 14-27.4(a)(2)(a). However, the case was remanded for resentencing because the jury’s convictions necessarily included all the elements of second-degree rape and second-degree sexual offense under G.S. 14-27.3(a)(1) and G.S. 14-27.5(a)(1). State v. Adams, 187 N.C. App. 676, 654 S.E.2d 711, 2007 N.C. App. LEXIS 2572 (2007).

What Is a Dangerous or Deadly Weapon. —

In order to be characterized as a dangerous or deadly weapon, an instrumentality need not have actually inflicted serious injury. A dangerous or deadly weapon is any article, instrument or substance which is likely to produce death or great bodily injury. State v. Young, 317 N.C. 396 , 346 S.E.2d 626, 1986 N.C. LEXIS 2416 (1986).

Deadly weapon does not have to be one that kills. State v. Workman, 309 N.C. 594 , 308 S.E.2d 264, 1983 N.C. LEXIS 1435 (1983).

Where there is a question as to a weapon’s deadly or dangerous nature, it is properly submitted to the jury. State v. Workman, 309 N.C. 594 , 308 S.E.2d 264, 1983 N.C. LEXIS 1435 (1983).

Charge That Fake Gun May Be Deadly or Dangerous Weapon. —

Where the indictment charges violation of this section with the use of deadly weapons, “to wit: a rifle, a shotgun, and a pistol,” a jury instruction that the deadly weapon element of this section would be met if the victim reasonably believed a fake gun to be a dangerous or deadly weapon does not change the theory alleged in the indictment. State v. McKinnon, 306 N.C. 288 , 293 S.E.2d 118, 1982 N.C. LEXIS 1440 (1982).

Deadly Weapon Need Not Be Possessed at Precise Moment of Penetration. —

In a prosecution for first-degree sexual offense, where a knife was employed in an effort to force the victim to give in to defendant’s demands, it was of no consequence that defendant was not in possession of the deadly weapon at the precise moment that penetration occurred. State v. Whittington, 318 N.C. 114 , 347 S.E.2d 403, 1986 N.C. LEXIS 2564 (1986).

Serious Personal Injury. —

The term “inflicts serious injury” means physical or bodily injury resulting from an assault with a deadly weapon with intent to kill. The injury must be serious but it must fall short of causing death. Further definition seems neither wise nor desirable. Whether such serious injury has been inflicted must be determined according to the particular facts of each case. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

The element of infliction of serious personal injury upon the victim or another person in the crimes of first-degree sexual offense and first-degree rape is sufficiently connected in time to the sexual acts when there is a series of incidents forming one continuous transaction between the rape or sexual offense and the infliction of the serious personal injury. Such incidents include injury inflicted on the victim to overcome resistance or to obtain submission, injury inflicted upon the victim or another in an attempt to commit the crimes or in furtherance of the crimes of rape or sexual offense, or injury inflicted upon the victim or another for the purpose of concealing the crimes or to aid in the assailant’s escape. State v. Blackstock, 314 N.C. 232 , 333 S.E.2d 245, 1985 N.C. LEXIS 1784 (1985).

Not Limited to Non-Fatal Injuries. —

The statutes governing first-degree rape and first-degree sexual offense do not limit the injuries underlying the charge to those not resulting in death. State v. Richmond, 347 N.C. 412 , 495 S.E.2d 677, 1998 N.C. LEXIS 13 , cert. denied, 525 U.S. 843, 119 S. Ct. 110, 142 L. Ed. 2d 88, 1998 U.S. LEXIS 5225 (1998).

Mental Injury May Constitute Serious Personal Injury. —

Proof of the element of infliction of “serious personal injury” as required by G.S. 14-27.2(a)(2)b and subdivision (a)(2)b of this section may be met by the showing of mental injury as well as bodily injury. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

But Must Be Greater Than That Present in Every Sexual Offense. —

The legislature intended that ordinarily the mental injury inflicted must be more than the res gestae results present in every forcible rape and sexual offense. In order to support a jury finding of serious personal injury because of injury to the mind or nervous system, the State must ordinarily offer proof that such injury was not only caused by the defendant but that the injury extended for some appreciable time beyond the incidents surrounding the crime itself. State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

Question Must Be Decided on Facts of Cases. —

Obviously, the question of whether there was such mental injury as to result in “serious personal injury” must be decided upon the facts of each case. It is impossible to enunciate a “bright line” rule as to when the acts of an accused cause mental upset which could support a finding of “serious personal injury.” State v. Boone, 307 N.C. 198 , 297 S.E.2d 585, 1982 N.C. LEXIS 1676 (1982).

In determining whether “serious personal injury” has been inflicted as the phrase is used in the definitions of first-degree rape and first-degree sexual offense, the court must consider the particular facts of each case. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Evidence of Serious Personal Injury Held Sufficient. —

Where none of the victim’s serious external injuries were the cause of the victim’s death, and all of the external injuries were inflicted upon her immediately prior to and during a sexual assault by the defendant, the trial court properly denied defendant’s motion to dismiss the charge of first-degree sexual offense for lack of substantial evidence of “serious personal injury.” State v. Thomas, 332 N.C. 544 , 423 S.E.2d 75, 1992 N.C. LEXIS 588 (1992).

Legislative Intent as to Punishment of Aiders and Abettors. —

It is evident that the legislature, by its enactment of subdivision (a)(2)c of this section, chose to include in the more serious first-degree categories those sexual offenses which involved aiders and abettors and to subject to a harsher penalty those who participated in gang assaults, regardless of the actual role of the participant. In so doing, the legislature acknowledged the increased severity of rapes and other sexual offenses committed by persons acting in concert. State v. Polk, 309 N.C. 559 , 308 S.E.2d 296, 1983 N.C. LEXIS 1443 (1983).

An aider and abettor is one who advises, counsels, procures, or encourages another to commit a crime. State v. Bell, 311 N.C. 131 , 316 S.E.2d 611, 1984 N.C. LEXIS 1723 (1984).

To render one who does not actually participate in the commission of a crime guilty of the offense committed, there must be some evidence tending to show that he, by word or deed, gave active encouragement to the perpetrator of the crime or by his conduct made it known to such perpetrator that he was standing by to lend assistance when and if it should become necessary. State v. Bell, 311 N.C. 131 , 316 S.E.2d 611, 1984 N.C. LEXIS 1723 (1984).

Aider and Abettor Is as Guilty as Principal Offender. —

Under the statutory scheme, a person who commits a sexual act with another person by force and against the will of the other person, and who also is aided and abetted by one or more persons is guilty of a first-degree sexual offense. An aider and abettor is as guilty as the principal offender, and thus an aider and abettor of any sexual offense ipso facto becomes guilty of a first-degree offense. State v. Polk, 309 N.C. 559 , 308 S.E.2d 296, 1983 N.C. LEXIS 1443 (1983).

Under this section, an aider and abettor of a sexual offense is guilty of a first-degree sexual offense or nothing at all. State v. Polk, 309 N.C. 559 , 308 S.E.2d 296, 1983 N.C. LEXIS 1443 (1983).

The presence of defendant’s nephews inside and outside the truck while defendant engaged in sexual acts with the victim could reasonably have been regarded as encouragement to defendant and constituted sufficient evidence that they and defendant shared the “community of unlawful purpose” necessary for aiding and abetting. State v. Penland, 343 N.C. 634 , 472 S.E.2d 734, 1996 N.C. LEXIS 397 (1996), cert. denied, 519 U.S. 1098, 117 S. Ct. 781, 136 L. Ed. 2d 725, 1997 U.S. LEXIS 634 (1997).

Conviction for Aiding and Abetting Is Not Double Jeopardy. —

One who was convicted of first-degree sexual offense by reason of his aiding and abetting a first-degree sexual offense committed by two other persons has been convicted of only one offense. He was not subjected to multiple convictions or to enhanced punishment by an improper use of the same element twice. Since defendant’s acts of assistance were properly used under the statute to elevate the charges against his codefendants to first-degree offenses in the first instance, defendant’s acts of aiding and abetting were used against him only once, that is, to find him guilty of the crime of first-degree sexual offense by reason of aiding and abetting. State v. Polk, 309 N.C. 559 , 308 S.E.2d 296, 1983 N.C. LEXIS 1443 (1983).

Second-Degree Sexual Offense Held Not Lesser Included Offense. —

In order for an offense to be submitted as a lesser included offense, not only must there be evidence of all elements of the offense, but all the elements of the offense to be submitted must be contained in the greater offense, and thus as a second-degree sexual offense has as an element that the sexual act must be committed “by force and against the will of the other person,” or against a person “who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know” of the victim’s deficiency, and neither of these alternative elements was an element of the first-degree sexual offense with which the defendant was charged, it was not error for the court to refuse to submit second-degree sexual offense as a lesser included charge. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Submission of Lesser Offenses Not Proper. —

Where no evidence was offered which suggested that defendant did not display knife prior to both offenses, the evidence would not have justified submission either of second-degree sexual offense or attempted second-degree rape. State v. Kuplen, 316 N.C. 387 , 343 S.E.2d 793, 1986 N.C. LEXIS 2227 (1986).

Charging a defendant with a separate count of first-degree sexual offense for each alternative sexual act performed in a single transaction would result in a multiplicitous indictment. State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428, 1999 N.C. App. LEXIS 192 (1999).

Sexual offense indictments were fatally defective because they cited one statute, but defendant was tried, convicted, and sentenced under another statute, and the averments were insufficient to satisfy all of the elements contained in either statute; while the indictments (1) alleged that each victim was a child under age 13, (2) named each child, and (3) averred that defendant “did engage in a sex act” with each, under the very narrow circumstances presented, the use of “short-form” language authorized under G.S. 15-144.2(b) was not sufficient to cure the fatal defects. State v. Miller, 159 N.C. App. 608, 583 S.E.2d 620, 2003 N.C. App. LEXIS 1538 (2003), aff'd, 358 N.C. 133 , 591 S.E.2d 520, 2004 N.C. LEXIS 14 (2004).

Victim’s Testimony of Discrete Instances Sufficient. —

Denial of defendant’s motion to dismiss after he was indicted on multiple sexual offenses with a child under G.S. 14-27.4(a)(1), G.S. 14-27.5(a)(1), and G.S. 14-202.1(a) was proper because the victim clearly described discrete instances of different types of sexual acts perpetrated upon him by defendant over a long period of time. That evidence was sufficient to withstand the motion to dismiss. State v. Davis, 214 N.C. App. 175, 715 S.E.2d 189, 2011 N.C. App. LEXIS 1640 (2011).

Sufficiency of Evidence. —

In a case in which the defendant and an accomplice raped a woman while the accomplice threatened the victim with a gun, remand was necessary as to charges of first degree rape and first degree sexual offense by anal intercourse because (1) defendant sufficiently preserved the issue for appellate review, and (2) the evidence was insufficient to permit a reasonable jury to convict defendant of the first degree offenses for which no acting in concert instruction was given since the record contained no evidence showing defendant’s personal use or display of a dangerous weapon. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560, 2007 N.C. App. LEXIS 2574 (2007), rev'd in part, 362 N.C. 340 , 663 S.E.2d 311, 2008 N.C. LEXIS 490 (2008).

Evidence, including testimony from operating physician in the emergency room that a laceration to a victim’s vagina was likely caused by the insertion of an object, possibly a fist, but not a penis, was sufficient to convict defendant of first degree sexual assault under G.S. 14.27.4. State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412, 2009 N.C. App. LEXIS 2214 (2009).

Because defendant molested the victim, his granddaughter, for many years prior to having vaginal intercourse with her beginning around age 14, the jury could infer that defendant continued his additional acts of touching and other sexual acts. Therefore the evidence was sufficient to convict defendant of statutory sexual offense under G.S. 14-27.4 and indecent liberties in violation of G.S. 202.1(a), on top of the statutory rape charges under G.S. 14-27.7 A(a). State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1, 2011 N.C. App. LEXIS 1740 (2011).

Defendant’s motion to dismiss charges of first- degree statutory sexual offense was properly denied, because defendant’s confession was supported by substantial independent evidence tending to establish its trustworthiness, including facts tending to show defendant had the opportunity to commit the crime and there was strong corroboration of the essential facts and circumstances embraced in defendant’s confession. Although the victim did not testify to fellatio during trial she did, prior to trial, inform two others that defendant made her perform fellatio. State v. Sweat, 216 N.C. App. 321, 718 S.E.2d 655, 2011 N.C. App. LEXIS 2235 (2011), aff'd in part and rev'd in part, 366 N.C. 79 , 727 S.E.2d 691, 2012 N.C. LEXIS 416 (2012).

Evidence related to anal intercourse, from the victim’s journal entry and what statements she made to others, indicated that the sexual abuse by defendant began in 2001, and while the State purported to use the evidence to corroborate the victim’s testimony, it could not use the testimony for substantive purposes; although the State provided evidence of vaginal intercourse, such conduct was sufficient to support defendant’s first-degree rape conviction, not a first-degree sex offense, and thus State failed to provide substantial evidence of a first-degree sex offense in 2001. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Victim’s in-court testimony showed that in 2004 and 2005, defendant engaged in vaginal intercourse with her on numerous occasions, and such conduct was sufficient evidence of first-degree rape; although her journal entry and other witness testimony about statements she made indicated that defendant committed a sexual act through anal intercourse, there is no substantive evidence that during this time period, defendant committed a sexual act, and the State failed to provide substantial substantive evidence of a sexual act for the first-degree sex offense charges. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

III.Practice and Procedure

Sufficiency of Indictment. —

Section 15-144.2(a) authorizes, for sexual offense, an abbreviated form of indictment which omits allegations of the particular elements that distinguish first-degree and second-degree sexual offense. State v. Berkley, 56 N.C. App. 163, 287 S.E.2d 445, 1982 N.C. App. LEXIS 2358 (1982).

While it is essential that the State prove a “sexual act” as defined by G.S. 14-27.1(4) in order to convict a defendant under this section, an indictment which is drafted pursuant to the provisions of G.S. 15-144.2(b) without specifying which “sexual act” was committed is sufficient to charge the crime of the first-degree sexual offense and to inform a defendant of such accusation. If a defendant wishes additional information in the nature of the specific “sexual act” with which he stands charged, he may move for a bill of particulars. State v. Edwards, 305 N.C. 378 , 289 S.E.2d 360, 1982 N.C. LEXIS 1274 (1982).

Indictments were sufficiently specific under this subsection, where indictments charging sexual offenses with a minor quoted the language of the statute, even though they did not describe the nature of the sex acts. State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42, 1998 N.C. App. LEXIS 1157 (1998).

While defendant abandoned error as to one of the six challenged indictments filed against him, each alleging charges of first-degree sexual offense, the trial court erred in failing to dismiss the remaining five upon defendant’s motion as fatally defective, given that they erroneously charged two similar but distinct crimes and effectively charged neither. State v. Hill, 185 N.C. App. 216, 647 S.E.2d 475, 2007 N.C. App. LEXIS 1712 (2007), rev'd, 362 N.C. 169 , 655 S.E.2d 831, 2008 N.C. LEXIS 24 (2008).

First-degree sexual offense indictments contained identical language and lacked specificity as to particular conduct; the State’s theory on appeal would require the imputing of conduct in 2006 to other years, which would result in punishing defendant more than once for the same conduct in violation. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Petition Sufficient in Juvenile Case. —

Petitions charging appellant, a juvenile, with first-degree sexual offense and crimes against nature were sufficient where they stated that appellant engaged in a sexual act with a child under the age of 13 and that appellant committed the infamous crime against nature with the victim; moreover, the petitions stated that the victim was 7 and that he performed fellatio on appellant. The State did not need to identify the particular sex acts involved or describe the manner in which they were performed, and appellant did not have to be the one performing the sexual act for either of these offenses. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

Consolidation of Offenses Occurring on Different Dates. —

Consolidation of two counts of first-degree sexual offense and two counts of taking indecent liberties with a child, which allegedly occurred one week apart did not constitute error. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Indictments with Dates Different from Those of Arrest Warrants Held Not Prejudicial. —

Trial court committed no error, plain or otherwise, with respect to defendant not having been served with bills of indictment or with respect to the State offering evidence that the offenses occurred on dates different from those alleged in arrest warrants; where defendant was represented by counsel of record on the date of the return of the true bills of indictment, where he and his counsel waived formal arraignment, at which they would have been informed of the allegations contained in the bills of indictment, where defendant presented evidence that he was never alone with the victim during any of the times during which the State’s evidence showed the offenses occurred, and where he did not rely solely upon alibi but also presented evidence through his own testimony and the testimony of others directly contradicting the victim’s account of the incidents. State v. Hutchings, 139 N.C. App. 184, 533 S.E.2d 258, 2000 N.C. App. LEXIS 811 (2000).

Alternate Theories Properly Considered. —

Trial court properly allowed the jury to review the evidence of defendant’s commission of rape and sexual offense under both a theory of statutory rape/sexual offense and forcible rape/sexual offense, however upon the jury’s verdicts of guilty under both theories, the judgment had to be arrested on one count of first-degree rape and on one count of first-degree sexual offense; separate convictions for these offenses, even though consolidated for a single judgment, had potentially severe adverse collateral consequences. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Indictment with Incorrect Statutory Cite Held Valid. —

Defendant’s indictments for four counts of statutory sexual offenses were valid even though the indictments cited G.S. 14-27.7 A, as the indictments put defendant on notice that defendant was being charged pursuant to G.S. 14-27.4(a)(1) with four counts of first-degree sexual offense against a child who was under the age of 13, where defendant was at least 12 years old and at least four years older than the victim; further, the jury was instructed pursuant to G.S. 14-27.4(a)(1). State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Allegation in indictment that victim was “a child under 12 years of age” sufficiently alleged that she was “a child under the age of 13 years” within the meaning of this section. State v. Gainey, 319 N.C. 391 , 354 S.E.2d 236, 1987 N.C. LEXIS 1938 (1987).

Fatal Variance. —

Where all of the State’s evidence tended to show that defendant penetrated the vaginal and rectal orifices of two girls by using a tampon, and no evidence in the record tended to show that defendant committed the act of cunnilingus or of anal intercourse with either victim as alleged in the indictment, the trial court erred in failing to dismiss the charges on grounds of a fatal variance between the allegations and the proof at trial. State v. Williams, 303 N.C. 507 , 279 S.E.2d 592, 1981 N.C. LEXIS 1195 (1981).

There was a fatal variance between the juvenile petition and the evidence where the petition, which charged a first-degree sexual offense based on the parties’ ages, was fatally defective because it did not allege the ages of the victim and the juvenile. In re Griffin, 162 N.C. App. 487, 592 S.E.2d 12, 2004 N.C. App. LEXIS 172 (2004).

Even in child sexual abuse cases, a variance as to time becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense; while time variances do not always prejudice a defendant so as to require dismissal, even when an alibi is involved, when the defendant relies on the date set forth in the indictment, but the State’s evidence substantially varies to the prejudice of defendant’s alibi defense, the interests of justice and fair play require that the defendant’s motion for dismissal be granted. In a case charging the defendant with taking indecent liberties with a child, where the State’s proof failed to show that alleged abuse occurred on the dates in the indictment, where the defendant had relied on those dates in building his alibi defense, and where all the evidence presented at trial went to sexual encounters over a period of years that ended a significant period of time prior to the dates listed in the indictment, defendant’s motion to dismiss should have been granted, and defendant’s conviction was reversed on appeal. State v. Custis, 162 N.C. App. 715, 591 S.E.2d 895, 2004 N.C. App. LEXIS 245 (2004).

Defendant’s convictions on six counts of first-degree sexual offense had to be vacated, as a fatal variance existed between the offense charged, which the State said in the indictment was by force and against the victim’s will, and the fact that the State did not present any evidence that the alleged offenses were forcible and the trial court’s instruction to the jury that the offense was based on the victim being under 13-years-old. State v. Lawrence, 170 N.C. App. 200, 612 S.E.2d 678, 2005 N.C. App. LEXIS 1016 (2005), rev'd in part, 360 N.C. 368 , 627 S.E.2d 609, 2006 N.C. LEXIS 30 (2006).

Because the indicted charge under this section was a lesser included offense of G.S. 14-27.4 A, the indictment did not allege all the elements of the crime set out in G.S. 14-27.4 A, the crime of which defendant was convicted, and therefore the judgment was vacated. Because the indictment sufficiently alleged the lesser included offense of first degree sexual offense under this section, and the jury’s verdict on the greater offense of sexual offense with a child necessarily included a determination by the jury that the defendant was guilty of that lesser included offense, the court remanded for entry of judgment and resentencing on the charge. of first degree sexual offense in violation of this section. State v. Hicks, 239 N.C. App. 396, 768 S.E.2d 373, 2015 N.C. App. LEXIS 71 , cert. denied, 368 N.C. 267 , 772 S.E.2d 731, 2015 N.C. LEXIS 540 (2015).

Victim Not Required to Testify. —

While it is true that in most sexual offense cases the victim does testify, nevertheless there is no requirement that the victim testify before the accused may be convicted. State v. Cooke, 318 N.C. 674 , 351 S.E.2d 290, 1987 N.C. LEXIS 1769 (1987).

Testimony as to Victim’s Credibility Inadmissible. —

Statements by an expert on child sexual abuse that she “had not picked up on anything” to suggest that someone had told the alleged victim what to say, and that she had no concerns that the alleged victim had been “coached,” bore directly on the alleged victim’s credibility and were inadmissible. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, 1993 N.C. App. LEXIS 97 (1993), writ denied, 333 N.C. 256 , 426 S.E.2d 701, 1993 N.C. LEXIS 44 (1993), aff'd, 336 N.C. 748 , 446 S.E.2d 1, 1994 N.C. LEXIS 407 (1994).

The trial court erred by allowing the teacher of an alleged victim of sexual abuse to testify on direct examination regarding specific instances of the alleged victim’s conduct which tended to establish her truthfulness. State v. Baymon, 108 N.C. App. 476, 424 S.E.2d 141, 1993 N.C. App. LEXIS 97 (1993), writ denied, 333 N.C. 256 , 426 S.E.2d 701, 1993 N.C. LEXIS 44 (1993), aff'd, 336 N.C. 748 , 446 S.E.2d 1, 1994 N.C. LEXIS 407 (1994).

Defendant’s convictions of first-degree sexual offense with a child under the age of thirteen were reversed because it was plain error to admit expert testimony that a lack of physical findings was not inconsistent with sexual abuse and that the victim fell in that category, as, (1) absent physical evidence, the testimony’s only bases were the victim’s history and statements to a social worker, which did not support the opinion that the child was abused, (2) the case turned on the credibility of the victim, who provided the only direct evidence against defendant, (3) the error seriously affected the fairness, integrity, and public reputation of judicial proceedings, since the victim’s recitations of defendant’s acts were not entirely consistent, and, (4) given the expert’s unquestioned stature in the field and the expert’s opinion that, even absent physical symptoms, the victim was sexually abused, the testimony stilled any doubts the jury might have had about the victim’s credibility or defendant’s culpability. State v. Towe, 366 N.C. 56 , 732 S.E.2d 564, 2012 N.C. LEXIS 420 (2012).

Testimony of Children. —

A conviction may be upheld in a case involving sexual offenses where proof includes testimony of a child victim even though the victim did not use the precise terms set out in this section. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Child victim’s testimony of defendant’s conduct and testimony by previous child victims of similar conduct, along with expert testimony of clinical social worker, was sufficient to convict defendant of first-degree sexual offense. State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316, 2001 N.C. App. LEXIS 1185 (2001), cert. denied, 536 U.S. 967, 122 S. Ct. 2680, 153 L. Ed. 2d 851, 2002 U.S. LEXIS 5060 (2002).

There was substantial evidence to support the essential elements of first-degree sexual offense under G.S. 14-27.4(a) where all three of defendant’s children testified to the egregious acts committed by defendant against them. State v. Bartlett, 153 N.C. App. 680, 571 S.E.2d 28, 2002 N.C. App. LEXIS 1247 (2002).

Use of Anatomical Dolls to Illustrate Testimony Proper. —

The courts of this State have allowed the use of anatomical dolls in sexual abuse cases to illustrate the testimony of child witnesses; the practice is wholly consistent with existing rules governing the use of photographs and other items to illustrate testimony and it conveys the information sought to be elicited, while permitting the child to use a familiar item, thereby making him more comfortable. State v. Chandler, 324 N.C. 172 , 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

Even though dolls were used to illustrate the testimony of a social worker rather than the abused children, the evidence was still admissible; the demonstration illustrated the social worker’s testimony as to the manner in which the children communicated accounts of sexual abuse and the social worker’s demonstration of what she observed each child do with the dolls also corroborated the testimony of each child. State v. Chandler, 324 N.C. 172 , 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

Seven-year-old child’s testimony constituted sufficient evidence of penetration to support a conviction of first degree sexual offense. State v. Watkins, 318 N.C. 498 , 349 S.E.2d 564, 1986 N.C. LEXIS 2671 (1986).

Although young victim did not use the word “vagina” or “genital area” when describing the sexual assault perpetrated upon her, where she did employ words commonly used by females of tender years to describe those areas of their bodies, of which they are just becoming aware, such evidence was ample to support verdict of guilty of first degree sexual offense. State v. Rogers, 322 N.C. 102 , 366 S.E.2d 474, 1988 N.C. LEXIS 125 (1988).

Proof of Penetration. —

To prove a case of first-degree sexual offense, the State must prove there was “penetration, however slight, by any object into the genital or anal opening of another person’s body”; that the victim was a child under the age of 13 years old; and the defendant is at least 12 years old and is at least four years older than the victim. State v. Huntley, 104 N.C. App. 732, 411 S.E.2d 155, 1991 N.C. App. LEXIS 1108 (1991).

Seven-year-old child’s testimony constituted sufficient evidence of penetration to support a conviction of first-degree sexual offense. State v. Watkins, 318 N.C. 498 , 349 S.E.2d 564, 1986 N.C. LEXIS 2671 (1986).

Child’s Testimony Sufficient to Show Penetration of Anal Opening. —

In trial for first degree sexual offense, where victim testified that defendant put his penis in the “back” and went on to explain that she meant “where I go number two,” the child’s testimony, taken as a totality, was sufficient evidence that the defendant penetrated child’s anal opening. State v. Estes, 99 N.C. App. 312, 393 S.E.2d 158, 1990 N.C. App. LEXIS 494 (1990).

Medical Evidence to Support Victim’s Testimony. —

Evidence was sufficient to allow a jury to convict defendant of first-degree sexual offense when the victim, his daughter, testified about his acts of anal intercourse and fellatio upon her, and medical evidence was presented from which the jury could infer that sexual acts upon the victim occurred. State v. Davis, 2002 N.C. App. LEXIS 1193 (N.C. Ct. App. Aug. 6, 2002), cert. denied, 356 N.C. 170 , 568 S.E.2d 623, 2002 N.C. LEXIS 793 (2002).

Defendant’s conviction of six counts of first-degree sexual offense of a child under the age of 13 years was affirmed because admission of videotape interviews of the children victims was permissible under G.S. 8C-1-803(4) because the challenged statements were made to pediatric nurses at the children’s center prior to examination by the doctor; there was sufficient evidence to support the charges. State v. Burgess, 181 N.C. App. 27, 639 S.E.2d 68, 2007 N.C. App. LEXIS 72 (2007), cert. denied, 365 N.C. 337 , 717 S.E.2d 384, 2011 N.C. LEXIS 728 (2011).

Medical Evidence Not Required. —

Medical evidence was not required to support a conviction of first-degree sexual offense under G.S. 14-27.4(a)(1) where the nature of the criminal acts made it unlikely that there would be physical evidence of the offense. State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212, 2001 N.C. App. LEXIS 860 (2001), aff'd, 560 S.E.2d 148, 2002 N.C. LEXIS 82 (N.C. 2002), cert. dismissed, 364 N.C. 612 , 705 S.E.2d 343, 2010 N.C. LEXIS 946 (2010).

Child’s uncertainty as to the time or particular day the offense was committed goes to the weight of the testimony rather than its admissibility, and nonsuit may not be allowed on the ground that the State’s evidence fails to fix any definite time when the offense was committed where there is sufficient evidence that the defendant committed each essential act of the offense. State v. Effler, 309 N.C. 742 , 309 S.E.2d 203, 1983 N.C. LEXIS 1459 (1983).

Allowing Testimony as to Age of Defendant Not Error. —

In a prosecution for first degree sexual offenses and taking indecent liberties with minors, the trial court did not err in allowing a deputy to testify as to his opinion that defendant appeared to be between 29 and 30 years of age since it was not necessary for the State to prove defendant’s exact age in order to convict him of any of the crimes charged, and the deputy had ample opportunity to observe defendant during the booking process and in the courtroom. State v. Banks, 322 N.C. 753 , 370 S.E.2d 398, 1988 N.C. LEXIS 479 (1988).

Evidence Supported Charge of First-Degree Sexual Offense. —

Where the defendant choked the victim into unconsciousness three times, her jeans were tied around her neck and used to drag her nude body through a wooded area where she was left, she had a deep red ring around her throat and bruises and abrasions over nearly her entire body, the victim testified that the defendant had tried to put her eyes out with his thumbs, the evidence, taken in the light most favorable to the State, supported the serious injury element of first-degree rape and first-degree sexual offense. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Because defendant displayed a dangerous or deadly weapon and the co-defendant aided and abetted defendant in having oral or anal intercourse with the victim, the evidence was sufficient to convict him of the crime of first degree sexual offense, under G.S. 14-27.4 . State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

Evidence that defendant removed his pants, walked into the room where the victim, defendant’s seven- or eight-year-old daughter was seated, stood in front of the victim, and asked the victim to put defendant’s penis in the victim’s mouth qualified as overt act sufficient to submit the charge of attempted first-degree sexual offense to the jury. State v. Henderson, 182 N.C. App. 406, 642 S.E.2d 509, 2007 N.C. App. LEXIS 671 (2007).

Evidence Supported Findings in Aggravation. —

In first-degree sexual offense case, rather than characterize the prosecuting attorney’s summary of the evidence as a “mere assertion,” it was more appropriate to focus on the fact that defense counsel admitted the correctness of that summary in his own statement to the court; the message communicated to the trial court by defendant, through counsel, was very clear by conduct, syntax and vocabulary, and if not a stipulation, it was certainly an admission that defendant in fact stuck his penis in the mouth of the five-year-old niece whom he bathed, fed and took care of, and with whom he lived; therefore, there was sufficient evidence to support the findings in aggravation. State v. Mullican, 95 N.C. App. 27, 381 S.E.2d 847, 1989 N.C. App. LEXIS 658 (1989), aff'd, 329 N.C. 683 , 406 S.E.2d 854, 1991 N.C. LEXIS 514 (1991).

Motive for Original Use of Force Irrelevant. —

Even though defendant struck victim with croquet stick in her bedroom because he was angry with her for having sex with someone else, rather than for the purpose of forcing her to have sex with him, the first-degree sexual offense statute applied; it was clear that defendant’s use of the croquet stick had the effect of putting the victim in fear for her life and thereby forcing her to submit to the defendant; fact that defendant initially became angry at the thought that the victim may have engaged in sexual activity with someone else was of no significance. State v. Hinton, 95 N.C. App. 683, 383 S.E.2d 704, 1989 N.C. App. LEXIS 869 (1989).

Cross-Examination Properly Restricted. —

In trial for first-degree sexual offense and burglary, the trial court did not err in prohibiting defendant’s attempted cross-examination of victim concerning psychiatric treatment that she had received and unrelated charges of sexual assault that she had made against another person in a previous judicial proceeding. State v. Wrenn, 316 N.C. 141 , 340 S.E.2d 443, 1986 N.C. LEXIS 1916 (1986).

Testimony Held Sufficient to Show Cunnilingus. —

Victim’s testimony was sufficient to establish that defendant placed his tongue on her mons pubis, which is part of the external female genitalia. Thus, the act of cunnilingus was thus complete. State v. Weathers, 322 N.C. 97 , 366 S.E.2d 471, 1988 N.C. LEXIS 124 (1988).

Testimony of Victim Sufficient Evidence of Cunnilingus. —

Testimony of four-year-old girl that defendant “touched me . . . with his tongue . . . between my legs,” while indicating the place of touching to the jury, constituted sufficient evidence of cunnilingus to support a conviction for a first-degree sexual offense. State v. Ludlum, 303 N.C. 666 , 281 S.E.2d 159, 1981 N.C. LEXIS 1199 (1981).

An alleged child victim’s testimony that defendant placed his tongue on her pubic area was sufficient to establish that defendant committed a completed act of cunnilingus. State v. Stancil, 146 N.C. App. 234, 552 S.E.2d 212, 2001 N.C. App. LEXIS 860 (2001), aff'd, 560 S.E.2d 148, 2002 N.C. LEXIS 82 (N.C. 2002), cert. dismissed, 364 N.C. 612 , 705 S.E.2d 343, 2010 N.C. LEXIS 946 (2010).

Testimony Held Irrelevant. —

Trial judge did not err by not allowing defendant’s witnesses to testify that he had not molested their children and by not allowing several children to testify that he had not molested them since such testimony was totally irrelevant. State v. Hoffman, 95 N.C. App. 647, 383 S.E.2d 458, 1989 N.C. App. LEXIS 828 (1989).

Evidence of Intent. —

Where defendant showed to brother of a sexual-offense victim, condoms to be used “whenever they were going to make love,” the prosecution’s questions to defendant concerning the condoms were admissible to show proof of intent, preparation, plan, knowledge and absence of mistake. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Evidence of prior sex acts may have some relevance to the question of defendant’s guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. Such evidence is deemed admissible and not violative of the general rule prohibiting character evidence. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Evidence Improperly Admitted. —

The trial court erred in allowing the State to cross-examine defendant charged with a sexual offense in the first degree concerning the following items in cross-examination: photographs, a dildo, a catalogue of condoms, lubricant, and two books entitled “Sexual Intercourse” and “The Sex Book,” all of which were found in his home. State v. Hinson, 102 N.C. App. 29, 401 S.E.2d 371, 1991 N.C. App. LEXIS 209 (1991).

Evidence That Defendant Enjoyed Consensual Anal Sex With His Wife Improperly Admitted. —

Defendant was granted a new trial on his convictions of first degree sex offense with a child, G.S. 14-27.4 , and taking indecent liberties with a child, G.S. 14-202.1 , because the trial court erred, pursuant to G.S. 8C-1 , N.C. R. Evid. 404(b), in admitting testimony by defendant’s wife that defendant enjoyed anal sex; the fact that defendant engaged in and liked consensual anal sex with his wife was not by itself sufficiently similar to engaging in anal sex with an underage victim beyond the characteristics inherent to both to be admissible under rule 404(b). State v. Dunston, 161 N.C. App. 468, 588 S.E.2d 540, 2003 N.C. App. LEXIS 2186 (2003).

Statements to Social Worker Acting as Agent of State. —

In case involving crimes against child victim, where social worker went beyond merely fulfilling her role as the victim’s social worker and began working with the sheriff’s department on the case prior to interviewing defendant, the social worker’s role changed and became essentially like that of an agent of the State; accordingly, because the social worker did not advise defendant of her Miranda rights, the trial court erred in denying defendant’s motion to suppress statements made during her interview with the social worker. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, 1993 N.C. App. LEXIS 98 , cert. denied, 333 N.C. 465 , 427 S.E.2d 626, 1993 N.C. LEXIS 123 (1993).

Admission of defendant’s statement concerning prior incidents held proper. In a case of first degree sexual offense and taking indecent liberties with two young boys, defendant’s statement to detective concerning prior incidents of taking indecent liberties with two young girls was relevant to show defendant’s unnatural lust, intent or state of mind. State v. Reeder, 105 N.C. App. 343, 413 S.E.2d 580, 1992 N.C. App. LEXIS 236 (1992).

Confession was voluntary because defendant was not under arrest during the questioning; he was advised of and knowingly waived his constitutional rights; the officer’s statements regarding defendant’s employment, the possession of his car, and his rights to visit his son came in response to specific questions asked by defendant; and any promises that may have been made by the officer concerned collateral matters, not involving the crime charged. State v. Cabe, 136 N.C. App. 510, 524 S.E.2d 828, 2000 N.C. App. LEXIS 53 (2000).

Defense of Duress. —

Although defendant argued he forced his teenage son to commit a sex act against defendant’s ten-year-old daughter and, as such, the son was acting under duress and could not be guilty of a crime, a trial court did not err in denying defendant’s motion to dismiss the charges of aiding and abetting a sex offense and child abuse, G.S. 14-27.4(a)(1) and G.S. 14-318.4(a2), because even if defendant’s teenage son was under duress while performing certain acts upon his sister, such acts still constituted a crime and duress did not transform those acts into non-criminal activity. State v. Stokes, 216 N.C. App. 529, 718 S.E.2d 174, 2011 N.C. App. LEXIS 2287 (2011).

Evidence Held Sufficient. —

Evidence was sufficient to support defendant’s conviction of first-degree sex offense based on the theory that he aided and abetted his codefendant brother in the commission of the offense. State v. Bell, 311 N.C. 131 , 316 S.E.2d 611, 1984 N.C. LEXIS 1723 (1984).

Child’s testimony held sufficient to support a conviction for first-degree sexual offense. State v. Smith, 315 N.C. 76 , 337 S.E.2d 833, 1985 N.C. LEXIS 1990 (1985).

Where both child victims testified and demonstrated with anatomically correct dolls the manner in which defendant inserted his penis into their backsides, this evidence was sufficient to permit the jury to find beyond a reasonable doubt that defendant penetrated the anal openings of both of the boys with his penis. State v. DeLeonardo, 315 N.C. 762 , 340 S.E.2d 350, 1986 N.C. LEXIS 1902 (1986).

Evidence of rectal penetration held sufficient. State v. Sloan, 316 N.C. 714 , 343 S.E.2d 527, 1986 N.C. LEXIS 2409 (1986).

Testimony of child who was nine at the time of the offense, describing 20-year-old defendant’s commission of anal intercourse, corroborated by that of her mother and the examining physician’s evidence constituting proof of essential elements of first degree sexual offense. State v. Griffin, 319 N.C. 429 , 355 S.E.2d 474, 1987 N.C. LEXIS 2026 (1987).

Evidence held sufficient to convict defendant of an offense under this section against four-year-old victim. State v. Kivett, 321 N.C. 404 , 364 S.E.2d 404, 1988 N.C. LEXIS 8 (1988).

Evidence held sufficient to support the jury finding that defendant was guilty of first degree sexual offense. State v. Jordan, 321 N.C. 714 , 365 S.E.2d 617, 1988 N.C. LEXIS 233 (1988).

Testimony of child victim held sufficient for the jury to find the dates of the offenses. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

There was evidence in record to support jury’s findings as to first-degree sexual offense where, although child responded “I don’t think so” when the assistant district attorney asked if defendant had done anything else to her, her sister testified that she and other girl “touched” defendant’s penis “with [their] lips” when the three were in the car. State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467, 1989 N.C. App. LEXIS 86 (1989).

In trial on charges of first-degree rape and first-degree sexual offense, evidence supported the jury’s verdict of guilty on the basis that the victim suffered serious personal injury in the form of both bodily and mental injury, where the victim testified that in addition to the physical pain she experienced during and immediately after the rape and sodomy, she had continued to experience appetite loss, severe headaches, nightmares, sleep difficulty, difficulty in urination, and difficulty in bowel movements. State v. Davis, 101 N.C. App. 12, 398 S.E.2d 645, 1990 N.C. App. LEXIS 1211 (1990).

Evidence in juvenile proceeding held sufficient to support conviction of first degree sexual offense by 13-year-old babysitter against four-year-old. In re J.A., 103 N.C. App. 720, 407 S.E.2d 873, 1991 N.C. App. LEXIS 933 (1991).

Although a nurse and doctor who examined an alleged rape victim testified that they did not find conclusive physical evidence that a sex act occurred, this medical testimony did not negate the victim’s testimony that defendant committed numerous sexual acts against her, which was corroborated by the forensic evidence; also, the State presented evidence of seminal fluid collected from the victim’s bedroom that matched defendant’s DNA. Therefore, the State presented sufficient evidence from which a jury could find that defendant committed first-degree statutory rape under G.S. 14-27.2(a)(1), first-degree sexual offense under G.S. 14-27.4(a)(1), and indecent liberties with a child under G.S. 14-202.1 . State v. Shepherd, 163 N.C. App. 646, 594 S.E.2d 439, 2004 N.C. App. LEXIS 581 (2004).

Defendant’s conviction for sexual assault was affirmed because there was substantial evidence that defendant engaged in a sexual act of anal penetration with the victim, against the victim’s will, and by employing a knife as a dangerous or deadly weapon. While the elderly victim gave conflicting testimony as to whether defendant penetrated her anally, a report from a rape kit concluded that semen was present on the swab from the victim’s rectum; furthermore, an emergency room doctor testified that it was possible for a person to be penetrated anally without showing signs of trauma and a victim might not recall anal penetration due to the fear experienced during such an assault. State v. Cartwright, 177 N.C. App. 531, 629 S.E.2d 318, 2006 N.C. App. LEXIS 1076 (2006).

Evidence supported defendant’s conviction for rape, statutory rape, sex offense, statutory sex offense, and sex offense in a parental role as: (1) defendant attacked the 14-year-old victim over a period of hours; (2) defendant’s expert testified that various wounds were inflicted while the victim was alive; (3) defendant raped the victim vaginally and anally while the victim was alive, leaving semen inside both her vagina and anus; (4) evidence from the victim’s lung tissue showed the victim was alive for a substantial period of time after the brain injury was inflicted; and (5) after hitting the victim in the head, defendant walked around thinking about how to cover up the crime, attempted to clean the victim up, and then sexually assaulted her body, all part of the same episode. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Convictions of two counts of first-degree sexual offense were proper because a detective and a forensic interviewer corroborated the six-year-old victim’s testimony by relating that the victim told them during interviews that defendant performed fellatio on him more than once. State v. Prush, 185 N.C. App. 472, 648 S.E.2d 556, 2007 N.C. App. LEXIS 1822 (2007).

Circumstances to which the ten-year-old female testified, and defendant’s inculpatory statements, when viewed most favorably to the State, amounted to substantial evidence that defendant’s penis touched the ten-year-old female’s mouth and supported defendant’s conviction for first degree sexual offense. The ten-year-old female testified that the female heard a “swishing” sound made by undershorts being pulled down, and felt skin and wetness on the female’s mouth, and, in defendant’s inculpatory statements, defendant admitted putting defendant’s penis in the “other little girl’s mouth”. State v. Reaves, 196 N.C. App. 683, 676 S.E.2d 74, 2009 N.C. App. LEXIS 523 (2009).

Trial court did not err in denying defendant’s motion to dismiss because, viewing the evidence in the light most favorable to the State of North Carolina, the State presented sufficient evidence of anal penetration of the minor victim by defendant, through the testimony of the victim, the victim’s brother, a physician’s assistant who examined the victim, and a child therapist who met with the victim, to allow a jury to find that defendant committed first-degree sexual offense. State v. Norman, 196 N.C. App. 779, 675 S.E.2d 395, 2009 N.C. App. LEXIS 504 (2009).

Trial court did not err in denying defendant’s motion to dismiss because the evidence was sufficient to constitute substantial evidence of each element of the crime of first degree sexual offense under G.S. 14-27.4(a) where a minor child testified that on three separate occasions defendant reached beneath the child’s shorts and touched between “the skin type area” in “the area that you pee out of.” Further, the child testified that defendant would rub against a pressure point causing the child pain and made the child feel as if the child was about to pass out, while a pediatrician testified that with extreme pressure and friction on the outside of the child’s labia majora or also on the inside coupled with the complaint of pain, it was more suggestive of touching these structures on the inside. State v. Crocker, 197 N.C. App. 358, 676 S.E.2d 658, 2009 N.C. App. LEXIS 712 (2009).

Trial court did not err in denying defendant’s motion to dismiss the first degree sexual offense charge, because the State presented sufficient evidence and the jury instructions, read as a whole, correctly instructed the jury of the findings required for conviction. State v. Lark, 198 N.C. App. 82, 678 S.E.2d 693, 2009 N.C. App. LEXIS 1101 (2009).

There was sufficient evidence to survive defendant’s motion to dismiss all of the charges against him, which included first-degree sex offense with a child, G.S. 14-27.4(a)(1), attempted first-degree statutory rape G.S. 14-27.2 , and two separate counts of indecent liberties with a child, G.S. 14-202.1(a)(1), because the victims both recounted specific details about the sexually abusive conduct of defendant; a police officer, doctors, and other witnesses testified that the victims both told them about defendant’s sexually abusive conduct, and the State introduced as evidence the recorded interviews of the victims that were used by the medical team at the child abuse center to make their treatment recommendations. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145, 2010 N.C. App. LEXIS 640 (2010), cert. dismissed, 372 N.C. 708 , 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Where the victim testified that on at least one occasion defendant’s penis penetrated her anus and a nurse examiner testified that the victim’s anal fissure could have resulted from trauma to the anal area, the evidence, if credited by the jury, was sufficient to support a finding of anal penetration supporting the first-degree sexual offense conviction. State v. Carter, 216 N.C. App. 453, 718 S.E.2d 687, 2011 N.C. App. LEXIS 2289 (2011), rev'd, 366 N.C. 496 , 739 S.E.2d 548, 2013 N.C. LEXIS 344 (2013).

Appellate court erred in granting defendant a new trial on two convictions of sexual offense of a child, because defendant confessed to four incidents of fellatio with victim and the State presented sufficient evidence of trustworthiness of defendant’s confession to all four incidents, including that defendant’s confession contained details likely to be known only to perpetrator and evidence that defendant had an opportunity to commit the crime. State v. Sweat, 366 N.C. 79 , 727 S.E.2d 691, 2012 N.C. LEXIS 416 (2012).

Evidence that defendant forced the victim, at gunpoint, to remove her clothing and insert her fingers into her vagina was sufficient to defeat defendant’s motion to dismiss a first-degree sex offense charge. State v. Green, 229 N.C. App. 121, 746 S.E.2d 457, 2013 N.C. App. LEXIS 891 (2013).

Evidence Held Insufficient. —

Given the ambiguity of the seven-year-old victim’s testimony as to anal intercourse, and absent corroborative evidence (such as physiological or demonstrative evidence) that anal intercourse occurred, as a matter of law the evidence was insufficient to support a verdict of first-degree sexual offense. State v. Hicks, 319 N.C. 84 , 352 S.E.2d 424, 1987 N.C. LEXIS 1826 (1987).

There was insufficient evidence that defendant engaged in first-degree sexual offense against a child who was under the age of 13, where defendant was at least 12 years old and at least four years older than the victim under G.S. 14-27.4(a)(1) prior to the victim turning 13 to send the case to the jury, as the victim testified that the first time defendant had sex with the victim, the victim was 13, and that over the course of two years, defendant performed various other sexual acts upon the victim; the victim’s testimony failed to indicate that the events occurred when defendant began touching the victim and on the day prior to the victim’s 13th birthday. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Under the corpus delicti rule, statements defendant made to a victim’s brother immediately after defendant confessed to a detective that the victim attempted to perform fellatio, opportunity evidence, and defendant’s testimony that he felt something touch his penis did not constitute the substantial independent evidence that was required to establish the sexual act element of first-degree sexual offense under G.S. 14-27.1(4) and G.S. 14-27.4 because the victim testified that a sexual act did not occur, the statements made to the victim’s brother were not independent of the extrajudicial confession, and the extrajudicial confession and defendant’s testimony did not allow a jury to find beyond a reasonable doubt that the victim’s mouth made contact with defendant’s penis. State v. Smith, 362 N.C. 583 , 669 S.E.2d 299, 2008 N.C. LEXIS 972 (2008).

Expert Statement Improper Evidence. —

Expert’s statement, which intimated the cause of the alleged victim’s post-traumatic stress syndrome was the sexual abuse inflicted by defendant, was erroneously admitted as substantive evidence to prove victim suffered a sexual assault by anal penetration and that defendant committed the offense. State v. Hensley, 120 N.C. App. 313, 462 S.E.2d 550, 1995 N.C. App. LEXIS 822 (1995).

Defendant was entitled to a new trial on the charge of first-degree sexual offense because the trial court erred when it admitted a doctor’s expert opinion that sexual abuse had in fact occurred when the doctor’s testimony amounted to an improper opinion on the victim’s credibility, and it had a probable impact on the jury’s result; the victim’s testimony was the only direct evidence implicating defendant on the charge of first-degree sexual offense, and while the doctor could give such testimony with regard to vaginal rape, where he found significant findings of physical evidence to support the charge history, he could not testify that it was defendant who repeatedly abused the victim where no such physical evidence existed. State v. Streater, 197 N.C. App. 632, 678 S.E.2d 367, 2009 N.C. App. LEXIS 1065 (2009), vacated, 2011 N.C. App. LEXIS 380 (N.C. Ct. App. Mar. 1, 2011).

Arrest of Judgment Proper. —

Trial court did not err by electing to arrest judgment on a felonious child abuse with a deadly weapon conviction as only one felony was necessary to support a felony murder conviction, and the jury found that five felonies could support a felony murder charge including forcible rape, statutory rape, forcible sex offense, statutory sex offense, and felony child abuse with a deadly weapon. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Jury Instruction on Crime Not Set Out in Indictment. —

The court erred in entering judgment upon the defendant’s conviction of a statutory sexual offense, a violation of G.S. 14-27.7 A, following instructions under G.S. 14-27.7 A where the indictment alleged a forcible sexual offense, a violation of this section. State v. Miller, 137 N.C. App. 450, 528 S.E.2d 626, 2000 N.C. App. LEXIS 418 (2000).

Instructions under G.S. 14-27.7 A Insufficient for Indictment Brought under This Section. —

Where the jury is instructed and reaches its verdict on the basis of the elements set out in G.S. 14-27.7 A, but defendant was indicted and brought to trial on the basis of the elements set out in this section, the indictment under which defendant was brought to trial could not be considered valid and any judgment made thereon must be vacated. State v. Bowen, 139 N.C. App. 18, 533 S.E.2d 248, 2000 N.C. App. LEXIS 807 (2000).

Double Jeopardy. —

Defendant’s claim that by failing to differentiate the various charges by providing different dates for the offenses and listing the underlying acts, the indictments opened the door to defendant being subjected to double jeopardy for the same acts on the same dates, was rejected because: (1) defendant’s indictments for statutory sexual offense, statutory sexual offense against a person who was 13, 14, or 15 years of age, and sexual offense were in compliance with the requirements of G.S. 15-144.2 , and the indictments matched the wording of N.C. G.S. 14-27.4(a)(1), G.S. 14-27.7 A(a), and G.S. 14-27.5(a)(1); (2) defendant’s indictments for the charges of taking indecent liberties with a child matched the wording of G.S.14-202.1(a)(2); and (3) defendant’s assault on a female indictments matched the wording of G.S. 14-33(c)(2); each of the indictments was sufficient to inform defendant of the charges against defendant, and defendant failed to show any deprivation of defendant’s ability to prepare a defense due to a lack of specificity in the indictments. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Unanimity of Verdict. —

Trial court did not err by not requiring a unanimous verdict regarding the specific sexual act it found as the predicate act for the verdict of guilty of first degree sexual offense where the victim testified that he had committed various sexual acts with the victim. State v. Carrigan, 161 N.C. App. 256, 589 S.E.2d 134, 2003 N.C. App. LEXIS 2045 (2003).

Defendant was not deprived of defendant’s right to a unanimous jury verdict as to charges of first-degree statutory sexual offense under G.S. 14-27.2 , statutory sexual offense against a person who was 13, 14, or 15 years old under G.S. 14-27.4(a)(1), taking indecent liberties with a child under G.S. 14-202.1 , second-degree forcible sexual offense under G.S 14-27.5, and assault on a female by a male at least 18 years of age under G.S. 14-33(c)(2) as: (1) the indictments were valid absent the inclusion of the specific acts that constituted the alleged sexual offenses; (2) the jury instructions and verdict sheets for each offense specifically identified each case by its number, listed the date on which each offense was alleged to have occurred, and listed the specific acts which were to serve as the underlying basis for each offense; (3) the jury was instructed specifically in each case in which defendant was charged with multiple counts of the same offense involving the same victim; (4) there was nothing in the record to indicate that the jury was confused by either the trial court’s instructions or the verdict sheets; and (5) the jury was polled following the announcement of the verdicts. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Instruction Held to Deprive Defendant of Unanimous Verdict. —

The trial court committed reversible error in instructing the jury that it could convict defendant of first degree sex offense if it found that he forced the victim to perform either fellatio or anal intercourse, as defendant had a constitutional right to be convicted by the unanimous verdict of a jury in open court, and under this instruction there was no way to tell whether defendant was convicted of second degree sexual offense because the jury unanimously agreed that defendant engaged in fellatio, anal intercourse, both fellatio and anal intercourse, or whether some members of the jury found that he engaged in fellatio but not anal intercourse, and some found that he engaged in anal intercourse but not fellatio. State v. Callahan, 86 N.C. App. 88, 356 S.E.2d 403, 1987 N.C. App. LEXIS 2658 (1987).

Instruction Did Not Deny Defendant’s Right to Conviction by Unanimous Jury. —

For case holding jury instruction on charge of first degree sexual offense stating that if jury found defendant engaged in either fellatio or vaginal penetration it could convict defendant of that charge was not error and in particular was not a denial of defendant’s right to a conviction by a unanimous jury, see State v. McCarty, 326 N.C. 782 , 392 S.E.2d 359, 1990 N.C. LEXIS 286 (1990).

Trial court properly instructed the jury it could find defendant guilty of the crimes of first-degree rape and first degree sexual offense if it found that defendant either displayed a dangerous or deadly weapon or was aided and abetted by one or more other persons during their commission, pursuant to G.S. 14-27.2(a)(2)(a) and (c) and G.S. 14-27.4(a)(2)(a) and (c). State v. Haywood, 144 N.C. App. 223, 550 S.E.2d 38, 2001 N.C. App. LEXIS 419 (2001).

Disjunctive Instruction Did Not Risk Nonunanimous Verdict. —

A disjunctive jury instruction on a first-degree sexual offense did not risk a nonunanimous verdict by defining a sexual act as either cunnilingus or penetration, where the statutory definition of “sexual act” did not create disparate offenses, but merely enumerated alternative methods of showing the commission of a sexual act. State v. Petty, 132 N.C. App. 453, 512 S.E.2d 428, 1999 N.C. App. LEXIS 192 (1999).

Instruction on Crime Against Nature Properly Refused. —

Where there was no evidence from which the jury could have found that victim consented to sexual act, the trial court did not err in refusing to submit a crime against nature charge to the jury. State v. Jordan, 321 N.C. 714 , 365 S.E.2d 617, 1988 N.C. LEXIS 233 (1988).

Instructions on Serious Injury Upheld. —

In prosecution for first-degree rape and first-degree sexual offense, the trial court did not err in instructing the jury on the element of serious injury, where the trial court corrected its instructions on the mental element of serious injury when the lack of any evidence tending to show mental injury was drawn to the court’s attention, and the trial court then specifically instructed the jury that there was no evidence of mental injury in the present case and that the jury’s sole consideration was whether there was serious bodily injury. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Failure to Instruct Jury Not to Consider Serious Injury Evidence Upheld. —

Where the defendant was charged with first-degree sexual offense, but he was convicted of second-degree sexual offense which does not include either use of a deadly weapon or the infliction of serious injury, the trial court did not err in failing to instruct the jury not to consider evidence of serious injury caused by the sexual offense in determining its verdict on the assault with a deadly weapon inflicting serious injury charge, for in convicting him of second-degree sexual offense the jury necessarily found that no serious injury was inflicted during that offense, and in convicting him of assault with a deadly weapon inflicting serious injury they necessarily found that the victim’s only serious injury was inflicted during the assault with the deadly weapon. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

Jury instructions did not result in conditional directed verdicts because reviewing the instructions in their entirety, the instructions could not have led the jury to believe that it could return a verdict of guilty in all four first-degree sexual offense charges if the jury was satisfied of defendant’s guilt beyond a reasonable doubt for only one of those offenses. State v. Norman, 196 N.C. App. 779, 675 S.E.2d 395, 2009 N.C. App. LEXIS 504 (2009).

No Requirement of Instruction to Prove Digital Penetration. —

Trial court was not required to instruct jury that the State had to prove digital penetration as alleged in the indictment. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335, 2010 N.C. App. LEXIS 2362 (2010).

Attempt Instruction Not Warranted. —

In a trial for first-degree sexual offense, there was not sufficient evidence of the existence of a mere attempt to warrant an attempt instruction. State v. Rhinehart, 322 N.C. 53 , 366 S.E.2d 429, 1988 N.C. LEXIS 127 (1988).

In a case in which the defendant and an accomplice raped a woman and defendant was convicted of, inter alia, first degree sexual offense by anal intercourse, an instruction on attempted first degree sexual offense by anal intercourse was not required since the victim’s testimony never specifically excluded penetration and there was DNA evidence that defendant’s sperm was found on an anal swab. State v. Person, 187 N.C. App. 512, 653 S.E.2d 560, 2007 N.C. App. LEXIS 2574 (2007), rev'd in part, 362 N.C. 340 , 663 S.E.2d 311, 2008 N.C. LEXIS 490 (2008).

Instruction of Lesser Offenses Warranted. —

Where there was conflicting evidence on defendant’s use of a knife, proof of which was necessary for a verdict of first-degree rape, victim testifying that defendant employed a knife during the act of rape, while defendant testified that there was no knife in his truck when the incident occurred, and no knife was ever located by investigating officers, the trial court properly included the lesser-included offenses of second-degree rape and second-degree sexual offense in its charge to the jury. State v. Watkins, 89 N.C. App. 599, 366 S.E.2d 876, 1988 N.C. App. LEXIS 355 (1988).

Instruction of Lesser Offenses Not Warranted. —

Trial court did not err in refusing defendant’s request to charge the jury on the lesser included offense of second-degree sexual offense, where the victim testified that defendant had a knife in his possession while he was performing oral sex on her. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808, 2011 N.C. App. LEXIS 1224 (2011).

When Submission of Lesser Included Offense Necessary. —

Fact that the evidence in a trial for first degree sexual offense would have supported a verdict of guilty of the lesser included offense of second-degree sexual offense did not mean that the trial judge was required to submit the lesser offense. When the State seeks a conviction of only the greater offense and the case is tried on an all or nothing basis, the State’s evidence is not regarded as evidence of the lesser included offense unless it is conflicting, and the lesser included offense must be submitted only when a defendant presents evidence thereof or when the State’s evidence is conflicting. State v. Bullard, 97 N.C. App. 496, 389 S.E.2d 123, 1990 N.C. App. LEXIS 160 (1990).

Instruction Defining “Sexual Act”. —

In trial for first-degree sexual offense, trial court’s instruction which stated in part that “a sexual act means any penetration, however slight, by an object into the genital opening of a person’s body,” was not plain error. State v. Carter, 326 N.C. 243 , 388 S.E.2d 111, 1990 N.C. LEXIS 15 (1990).

Using a pattern instruction defining “sexual act” more broadly than precedent was not plain error because (1) defendant did not show a correct instruction would have caused a different verdict, and (2) verdicts finding defendant not guilty of a sex offense and guilty of child abuse showed no plain error, as inconsistent verdicts were not prima facie error, and defendant’s charges were not mutually exclusive. State v. Alonzo, 261 N.C. App. 51, 819 S.E.2d 584, 2018 N.C. App. LEXIS 800 (2018), modified, aff'd, 373 N.C. 437 , 838 S.E.2d 354, 2020 N.C. LEXIS 86 (2020).

Instruction on “Use of Deadly Weapon”. —

The State is only required to show that defendant possessed a deadly or dangerous weapon at the time of the rape and that the victim was aware of the presence of the weapon because it had been displayed or employed; therefore, although the trial court’s instruction did not emphasize the victim’s awareness of the weapon, the instruction made clear that the State was required to prove that the weapon was displayed in some fashion and, therefore, was proper. State v. Pruitt, 94 N.C. App. 261, 380 S.E.2d 383, 1989 N.C. App. LEXIS 464 (1989).

Trial court did not err by instructing the jury that it could consider whether or not the use of the bottle constituted a deadly weapon during the commission of the sexual offense because the victim testified that defendant and his accomplice, after tying his hands and feet, shoved a rag into his mouth, pulled his pants and underwear down, and inserted a bottle into his rectum, and that he thought that it would probably be left inside or that he was going to die; emergency room nurse examined the victim and observed a tear in his anal wall accompanied by “serious drainage.” State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288, 2011 N.C. App. LEXIS 213 (2011).

Error in Failure to Give Instruction on Affirmative Defense. —

Trial court committed reversible error by failing to instruct the jury on an affirmative defense to the predicate felony on which the jury based its first-degree murder conviction, as the jury based its conviction solely on the finding that defendant penetrated the victim’s genital opening with an object prior to inflicting the injuries that caused her death and defendant claimed he penetrated the victim while cleaning feces and urine, an accepted medical purpose. State v. Stepp, 232 N.C. App. 132, 753 S.E.2d 485, 2014 N.C. App. LEXIS 61 (2014), rev'd, 367 N.C. 772 , 767 S.E.2d 324, 2015 N.C. LEXIS 35 (2015).

Withdrawal of Request for Instructions Held Voluntary. —

Defendant on trial for first-degree rape and first-degree sexual offense was not forced by any erroneous ruling of the trial court to withdraw his request for instructions; accordingly, the defendant’s withdrawal of his request for instructions on involuntary commitment was voluntary and not improperly coerced by a mistaken ruling of the trial court. State v. Coppage, 94 N.C. App. 630, 381 S.E.2d 169, 1989 N.C. App. LEXIS 623 (1989).

Invited Error on Instruction. —

In defendant’s trial for first-degree rape and first-degree sex offense, defendant’s attorney actively participated in crafting the trial court’s response to the jury question, agreed with the trial court’s interpretation that a penis could be considered an “object,” and denied the trial court’s proposed clarification between vaginal intercourse and a sexual act, and thus defendant invited any error stemming from the trial court’s instructions. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

No Plain Error in Instruction. —

In defendant’s trial for first-degree rape and first-degree sex offense, the trial court did not commit plain error in referring to the victim as the victim during jury instructions, as case law held that the use of that term did not constitute plain error in instructions, plus it was not found that the term had a probable impact on the jury’s finding of guilt. State v. Spence, 237 N.C. App. 367, 764 S.E.2d 670, 2014 N.C. App. LEXIS 1146 (2014).

Juvenile Disposition. —

Juvenile defendant failed to argue how the absence of a sex offender specific evaluation hindered the trial court’s ability to properly sentence him on his adjudication for first degree sex offenses with a child. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757, 2008 N.C. App. LEXIS 693 (2008).

When appellant, a juvenile, was adjudicated delinquent for first degree sexual offense and indecent liberties between children, a trial court made sufficient dispositional findings because the court found, beyond a reasonable doubt, (1) crimes were premeditated and willful, (2) the sex crime was extremely serious, (3) the juvenile denied charges and said sex offender treatment would not benefit the juvenile, (4) the juvenile had attention deficit hyperactivity disorder symptoms, requiring a controlled environment, and (5) the juvenile’s family’s proximity to the victim made the juvenile’s release too dangerous. In re G.C., 230 N.C. App. 511, 750 S.E.2d 548, 2013 N.C. App. LEXIS 1203 (2013).

Denial of juvenile defendant’s motion for release pending appeal was not improper, given that defendant did not challenge the trial court’s findings of fact supporting its reason for denying defendant’s motion, which was that he committed first degree sex offenses with a child. In re J.J.D.L., 189 N.C. App. 777, 659 S.E.2d 757, 2008 N.C. App. LEXIS 693 (2008).

§ 14-27.30. Statutory sexual offense with a person who is 15 years of age or younger.

  1. A defendant is guilty of a Class B1 felony if the defendant engages in a sexual act with another person who is 15 years of age or younger and the defendant is at least 12 years old and at least six years older than the person, except when the defendant is lawfully married to the person.
  2. Unless the conduct is covered under some other provision of law providing greater punishment, a defendant is guilty of a Class C felony if the defendant engages in a sexual act with another person who is 15 years of age or younger and the defendant is at least 12 years old and more than four but less than six years older than the person, except when the defendant is lawfully married to the person.

History. 1995, c. 281, s. 1; 2015-181, s. 12.

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

Editor’s Note.

Session Laws 2015-181, s. 48, made the enactment of this section by Session Laws 2015-181, s. 12, effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

Constitutionality. —

Even though consent is not a defense to “statutory” rape under this section, the sentencing scheme does not violate the North Carolina Constitution. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195, 1999 N.C. App. LEXIS 604 (1999), aff'd, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Sentencing scheme under G.S. 14-27.7 A reflects a rational legislative policy, is not disproportionate to the crime, and is therefore constitutional; further, the exemption for married couples from G.S. 14-27.7 A(a) does not violate equal protection. State v. Clark, 161 N.C. App. 316, 588 S.E.2d 66, 2003 N.C. App. LEXIS 2047 (2003).

Double Jeopardy. —

Defendant’s claim that by failing to differentiate the various charges by providing different dates for the offenses and listing the underlying acts, the indictments opened the door to defendant being subjected to double jeopardy for the same acts on the same dates, was rejected because: (1) defendant’s indictments for statutory sexual offense, statutory sexual offense against a person who was 13, 14, or 15 years of age, and sexual offense were in compliance with the requirements of G.S. 15-144.2 , and the indictments matched the wording of N.C. G.S. 14-27.4(a)(1), G.S. 14-27.7 A(a), and G.S. 14-27.5(a)(1); (2) defendant’s indictments for the charges of taking indecent liberties with a child matched the wording of G.S.14-202.1(a)(2); and (3) defendant’s assault on a female indictments matched the wording of G.S. 14-33(c)(2); each of the indictments was sufficient to inform defendant of the charges against defendant, and defendant failed to show any deprivation of defendant’s ability to prepare a defense due to a lack of specificity in the indictments. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Double jeopardy argument would have been unsuccessful at trial when defendant was convicted of both second-degree rape and statutory rape, predicated on a single act of sexual intercourse with the fifteen-year-old and mentally disabled victim, because neither of the offenses was a lesser included offense of the other based on the separate and distinct elements that had to be proven for each offense. State v. Banks, 367 N.C. 652 , 766 S.E.2d 334, 2014 N.C. LEXIS 961 (2014).

Sentences for Convictions of Both Statutory Rape and Second Degree Rape Based on Single Act of Sexual Intercourse Were Prohibited. —

Defendant was entitled to relief on motion for appropriate relief because he received ineffective assistance when his counsel failed to object to judgment which sentenced him for convictions of both statutory rape and second degree rape, G.S. 14-27.3 , that were based upon a single act of sexual intercourse. A prior appellate opinion, issued before defendant’s trial and judgment, held that statutory rape and first degree rape convictions based on a single act of intercourse were prohibited, and second degree rape was a lesser included offense of first degree rape. State v. Banks, 225 N.C. App. 417, 736 S.E.2d 843, 2013 N.C. App. LEXIS 131 (2013), rev'd, 367 N.C. 652 , 766 S.E.2d 334, 2014 N.C. LEXIS 961 (2014).

Indecent Liberties and Sexual Offense Were Not Lesser Included Offenses. —

Because defendant molested the victim, his granddaughter, for many years prior to having vaginal intercourse with her beginning around age 14, the jury could infer that defendant continued his additional acts of touching and other sexual acts. Therefore the evidence was sufficient to convict defendant of statutory sexual offense under G.S. 14-27.4 and indecent liberties in violation of G.S. 202.1(a), on top of the statutory rape charges under G.S. 14-27.7 A(a). State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1, 2011 N.C. App. LEXIS 1740 (2011).

Consent is not a defense to a crime codified under this section. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195, 1999 N.C. App. LEXIS 604 (1999), aff'd, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Mistake of age is not a defense to the crime codified under this section. State v. Anthony, 133 N.C. App. 573, 516 S.E.2d 195, 1999 N.C. App. LEXIS 604 (1999), aff'd, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Consent is not a defense to this statute although the legislature created it as a separate statute, rather than amending G.S. 14-27.2(a)(1). State v. Anthony, 351 N.C. 611 , 528 S.E.2d 321, 2000 N.C. LEXIS 348 (2000).

Evidence of defendant’s prior assault on another victim was admissible. to show common scheme and intent where the prior assault and the current charges were similar in nature: in both instances the victims, similar in age, visited various residences or places in which they were unfamiliar and then were taken by automobile to isolated areas at night; during both instances, defendant told the victims something was wrong with the automobile, asked the victims to get out of the automobile, and then proceeded to sexually assault them. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404, 2000 N.C. App. LEXIS 1403 (2000).

Defendant Not Entitled to Admission of Prior Assault Evidence. —

The trial court did not abuse its discretion in denying admissibility of evidence of a victim’s prior assault which the defendant claimed the victim fabricated so as to obtain a pregnancy test and which he wanted to introduce to demonstrate “habit” where it noted that the “two incidents” occurring “two years apart” were not sufficient to constitute a habit. State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404, 2000 N.C. App. LEXIS 1403 (2000).

Satellite-Based Monitoring. —

Trial court did err by concluding that defendant was subject to enrollment in satellite-based monitoring pursuant to G.S. 14-208.40(a)(2) after he pleaded guilty to statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a) because the offense of solicitation to take an indecent liberty with a minor inherently involved the physical, mental, or sexual abuse of a minor. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Neither the North Carolina Department of Correction nor the trial court was responsible for any type of notice regarding defendant’s eligibility for satellite-based monitoring (SBM) because G.S. 14-208.40 A was the applicable statute for determining his eligibility for enrollment in SBM and the time period of his enrollment since when defendant entered an Alford plea to four counts of taking indecent liberties with a minor in violation of G.S. 14-27.7 A(a), he was newly convicted of a reportable conviction. since defendant was placed on probation and, as a condition of his probation, was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40 A, not G.S. 14-208.40B. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Trial court properly exercised subject matter jurisdiction pursuant to G.S. 14-208.40 A and followed the proper hearing procedures in assessing defendant’s eligibility for satellite-based monitoring because the trial court determined that defendant was convicted of a reportable offense, statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a), considered the assessment prepared by the North Carolina Department of Correction and the testimony of the witnesses; the General Assembly devised a separate procedure for determining eligibility for satellite-based monitoring and clearly granted the superior courts subject matter jurisdiction to conduct these determinations pursuant to specific statutory procedures. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Satellite-Based Monitoring Improper. —

Since only two of the trial court’s findings were supported by competent evidence, which could support findings of fact that could lead to a conclusion that defendant required the highest possible level of supervision and monitoring, it was be proper to remand the case to the trial court to consider the evidence and make additional findings; the State did not present any evidence to support the finding that the statutory sex offenses in violation of G.S. 14-27.7 A(a) occurred when other children were present in defendant’s home, and the trial court’s finding regarding defendant’s lack of remorse was unsupported by competent evidence because it was unclear whether the trial court found that defendant’s Alford plea itself showed a lack of remorse or whether defendant’s actions showed a lack of remorse. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Conviction Overturned. —

The defendant’s pre-December 1995 conviction for statutory rape with a fourteen-year-old could not stand where G.S. 14-27.7 A which made rape statutory if the victim is under fifteen years of age did not become effective until 1 December 1995, five days after defendant had sex with the fourteen-year-old. State v. Crockett, 138 N.C. App. 109, 530 S.E.2d 359, 2000 N.C. App. LEXIS 548 (2000).

Date of Offense Not Necessary for Statutory Rape Indictment. —

The fact that an indictment charging the defendant with statutory rape did not specify the exact date the offense was committed was immaterial because the evidence at trial showed that this offense occurred in January 1996 when the victim was fourteen which age satisfied the requirements of this section. State v. Crockett, 138 N.C. App. 109, 530 S.E.2d 359, 2000 N.C. App. LEXIS 548 (2000).

When defendant was charged with statutory rape of a victim, under G.S. 14-27.7 A(a), if the victim’s testimony was insufficient to establish that defendant had sex with the victim twice in a certain month, the State nevertheless presented substantial evidence that defendant had sex with the victim at least six times between two dates, including at least four times in another certain month, and the variance between the period of time in the indictment within which the offenses occurred and the State’s evidence at trial was not material and did not deprive defendant of the opportunity to adequately present a defense, so dismissal was not required. State v. Hueto, 195 N.C. App. 67, 671 S.E.2d 62, 2009 N.C. App. LEXIS 62 (2009).

Jury Instruction on Crime Not Set Out in Indictment. —

The court erred in entering judgment upon the defendant’s conviction of a statutory sexual offense, a violation of this section, following instructions under this section where the indictment alleged a forcible sexual offense, a violation of G.S. 14-27.4 . State v. Miller, 137 N.C. App. 450, 528 S.E.2d 626, 2000 N.C. App. LEXIS 418 (2000).

Jury Instruction on Sex Offense Proper. —

Trial court did not commit plain error in instructing the jury on a sex offense and accepting a guilty verdict thereon as there was evidence upon which the jury could have found that defendant committed a sexual act upon the victim and the jury instructions as a whole were correct. State v. Tadeja, 191 N.C. App. 439, 664 S.E.2d 402, 2008 N.C. App. LEXIS 1503 (2008).

Indictment Sufficient. —

Short-form indictment charging violation of G.S. 14-27.7 A(a) was sufficient when it alleged that defendant unlawfully, willfully, and feloniously engaged in a sexual act with a person of the age of 13 years, that defendant was at least six years older than the victim, and that he was not lawfully married to the victim; the indictment complied with the requirements of G.S. 15-144.2(a) and was sufficient to put him on notice of the crime of which he was accused. State v. Bradley, 179 N.C. App. 551, 634 S.E.2d 258, 2006 N.C. App. LEXIS 1968 (2006).

Indictment which was couched in the language of the statute was sufficient. State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267, 2006 N.C. App. LEXIS 2251 (2006).

Trial court had jurisdiction to enter judgment on defendant’s statutory rape charge under G.S. 14-27.7 A(a) as the indictment was not facially invalid because it alleged that defendant carnally knew the victim, instead of that he had vaginal intercourse with the victim since at common law, carnal knowledge and sexual intercourse were synonymous; the indictment alleged all material elements of G.S. 14-27.7 A, even though it did not contain the language “by force and against her will” under G.S. 15-144.1 since G.S. 15-144.1 did not apply as its subsections did not address an indictment for statutory rape of a child 13, 14, or 15 years old. State v. Morgan, 225 N.C. App. 784, 741 S.E.2d 422, 2013 N.C. App. LEXIS 230 (2013).

Because neither force nor a lack of consent were elements of the crime of attempted statutory rape, the State was not required to prove that the vaginal intercourse was by force and against the victim’s will and, therefore, such an allegation was not required in the short form indictment. State v. Gibert, 229 N.C. App. 476, 747 S.E.2d 253, 2013 N.C. App. LEXIS 932 (2013).

Short form indictment was sufficient to vest jurisdiction in the trial court because the phrase “ravish and carnally know” was essentially synonymous with vaginal intercourse where the victim was under the age of consent; the indictment alleged that defendant attempted to engage in vaginal intercourse with the victim; and allegations of force or a lack of consent were not required as they were not elements of the crime of attempted statutory rape. State v. Gibert, 229 N.C. App. 476, 747 S.E.2d 253, 2013 N.C. App. LEXIS 932 (2013).

Indictment Insufficient. —

While defendant abandoned error as to one of the six challenged indictments filed against him, each alleging charges of first-degree sexual offense, the trial court erred in failing to dismiss the remaining five upon defendant’s motion as fatally defective, given that they erroneously charged two similar but distinct crimes and effectively charged neither. State v. Hill, 185 N.C. App. 216, 647 S.E.2d 475, 2007 N.C. App. LEXIS 1712 (2007), rev'd, 362 N.C. 169 , 655 S.E.2d 831, 2008 N.C. LEXIS 24 (2008).

Indictment charging defendant with statutory sexual offense under G.S. 14-27.2 , statutory sexual offense of a person who was 13, 14, or 15 years of age under G.S. 14-27.7 A, taking indecent liberties with a child under G.S. 14-202.1 , and forcible sexual offense under G.S. 14-27.5 that did not list the specific underlying sexual acts was valid, as the jury was instructed on the specific sexual acts that were to serve as the underlying act for each charged offense; when a short form indictment properly alleged the essential elements of the offense, it did not have to allege every matter required to be proved on the trial under G.S. 15-144.2(a), and indictments charging indecent liberties with a child or a sexual offense were valid even when they did not contain a specific allegation regarding which specific sexual act was committed. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Defendant’s indictments for four counts of statutory sexual offenses were valid even though the indictments cited G.S. 14-27.7 A, as the indictments put defendant on notice that defendant was being charged pursuant to G.S. 14-27.4(a)(1) with four counts of first-degree sexual offense against a child who was under the age of 13, where defendant was at least 12 years old and at least four years older than the victim; further, the jury was instructed pursuant to G.S. 14-27.4(a)(1). State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Instructions under This Section Insufficient for Indictment Brought under G.S. 14-27.4 . —

Where the jury is instructed and reaches its verdict on the basis of the elements set out in this section, but defendant was indicted and brought to trial on the basis of the elements set out in G.S. 14-27.4 , the indictment under which defendant was brought to trial could not be considered valid, and any judgment made thereon must be vacated. State v. Bowen, 139 N.C. App. 18, 533 S.E.2d 248, 2000 N.C. App. LEXIS 807 (2000).

The defendant was entitled to the Miranda warnings prior to the date of birth question elicited during booking, and the failure to give those warnings rendered his response inadmissible as evidence where defendant’s age was an essential element of the crime charged, and the investigating officer, knew or should have known her question regarding his date of birth would elicit an incriminating response. State v. Locklear, 138 N.C. App. 549, 531 S.E.2d 853, 2000 N.C. App. LEXIS 626 (2000).

Where two or more offenses are joined for judgment, one offense may properly be aggravated by evidence needed to prove a separate joined offense. In a case where sexual offense by a person in a parental role was not the most serious crime in the consolidated judgment and thus was not the offense from which defendant’s sentence was derived, the aggravator of abusing a position of trust did not apply to the crime of sexual offense by a person in a parental role, but rather properly applied to the most serious offense in each of the two consolidated judgments, the statutory sexual offense of a person aged 13, 14, or 15. State v. Tucker, 357 N.C. 633 , 588 S.E.2d 853, 2003 N.C. LEXIS 1411 (2003).

Continuous Course of Conduct Theory Not Recognized. —

Denial of defendant’s motion to dismiss one of the charges based on the argument that they were in the nature of a “continuous transaction” was proper, because North Carolina does not recognize the “continuous course of conduct” theory. State v. Cortes-Serrano, 195 N.C. App. 644, 673 S.E.2d 756, 2009 N.C. App. LEXIS 259 (2009).

Defendant was entitled to a new trial on the two statutory rape charges, because the trial court’s failure to include “not guilty by reason of unconsciousness” in the final mandate to the jury constituted plain error, as there was a reasonable likelihood that the jury applied the instructions on unconsciousness in a manner that lessened the State’s burden of proof, given the jury’s inconsistent verdicts. Since the evidence of unconsciousness arose out of the State’s evidence, the State had the burden of proving defendant’s consciousness beyond a reasonable doubt. State v. Tyson, 195 N.C. App. 327, 672 S.E.2d 700, 2009 N.C. App. LEXIS 190 (2009).

Trial Court Misapplied Birthday Rule in Improperly Dismissing Charges Against Defendant. —

In a case in which the State appealed the trial court’s grant of a motion to dismiss charges of statutory rape and statutory sexual offense against defendant, the trial court erred in applying the reasoning of the Moore decision used to calculate the age of the victim to the calculation of time in G.S. 14-27.7 A(b); the trial court misapplied the birthday rule. Defendant in the Moore decision was charged with violating G.S. 14-27.7 A(a), while defendant in the present case was charged with violating G.S. 14-27.7A(b). State v. Faulk, 200 N.C. App. 118, 683 S.E.2d 265, 2009 N.C. App. LEXIS 1558 (2009).

Evidence Sufficient to Prove Attempt But Not Completed Crime. —

Evidence that defendant demanded that victim perform fellatio, but the victim refused was sufficient to support a conviction for the attempted, but not the completed crime of statutory sexual offense. State v. Sines, 158 N.C. App. 79, 579 S.E.2d 895, 2003 N.C. App. LEXIS 943 , cert. denied, 357 N.C. 468 , 587 S.E.2d 69, 2003 N.C. LEXIS 943 (2003).

Evidence Was Sufficient to Support Conviction. —

Evidence was sufficient to support a conviction for statutory rape, including the element of a required six-year age difference between defendant and the 15-year-old victim, where the victim accurately testified as to both of their birth dates, and a marriage certificate, which was admitted into evidence, set forth both of their ages; the statutory rape occurred before the marriage, and defendant and the pregnant victim proceeded with a divorce before defendant was indicted two months after the date of the marriage. State v. Howard, 158 N.C. App. 226, 580 S.E.2d 725, 2003 N.C. App. LEXIS 1049 (2003).

There was substantial evidence to withstand defendant’s motions to dismiss because the evidence established that the victim, defendant’s biological daughter, was between 13 and 15 years old, an essential element of statutory rape under section G.S. 14-27.7 A(a), during the time she lived with defendant, and defendant engaged in almost daily sexual intercourse with her. There was also sufficient evidence of defendant’s age because it was biologically impossible for defendant to be less than six years older than the victim and to be her father. State v. Wiggins, 161 N.C. App. 583, 589 S.E.2d 402, 2003 N.C. App. LEXIS 2263 (2003).

Sufficient evidence supported convictions for taking indecent liberties with a child under G.S. 14-202.1 , statutory sex offense under G.S. 14-27.7 A(a), and sexual activity by a custodian, G.S. 14-27.7 (a), where the 15-year-old victim, a patient in a behavioral hospital, testified that she had engaged in sexual activity with defendant, a mental health technician at the hospital, and where the victim’s mother and sister also testified that the victim told them about her interactions with defendant, and that they heard firsthand telephone conversations between the victim and defendant regarding specific sexual activity. State v. Evans, 162 N.C. App. 540, 591 S.E.2d 564, 2004 N.C. App. LEXIS 180 (2004).

Evidence that the victim was 15 years old and had not yet turned 16 was sufficient to support defendant’s statutory rape conviction under G.S. 14-27.7 A(a); because the statute did not qualify the age of the person, the minor described in G.S. 14-27.7 A(a) must be either 13, 14, or 15, not more or less than those ages. State v. Moore, 167 N.C. App. 495, 606 S.E.2d 127, 2004 N.C. App. LEXIS 2337 (2004).

Defendant’s conviction for statutory rape was upheld on appeal where the record indicated that one of the victims was 14 years old, defendant was 36 years old, and they were not lawfully married at the time of the incident; further evidence in the case, considered in the light most favorable to the State, tended to show defendant forced the victim to engage in vaginal and anal intercourse, which evidence was based on the victim’s testimony, corroborative testimony by the State’s witnesses, and physical evidence. State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774, 2005 N.C. App. LEXIS 250 (2005).

Evidence was sufficient to support defendant’s conviction for statutory rape, as it showed that he engaged in repeated acts of sexual intercourse with the victim when she was under the age of consent and he was an adult who was dating her mother; indeed, the evidence showed that she gave birth to his baby when she was still a minor. State v. Jones, 172 N.C. App. 308, 616 S.E.2d 15, 2005 N.C. App. LEXIS 1580 (2005).

When taken in the light most favorable to the State, the victim’s testimony that defendant “stuck his fingers in her vagina” while she was 13 years old provided sufficient evidence to support defendant’s conviction for statutory sexual offense of a person 13 years old. State v. Brown, 178 N.C. App. 189, 631 S.E.2d 49, 2006 N.C. App. LEXIS 1311 (2006).

Victim’s statement the victim had sex with defendant and the principal’s corroborating testimony that the victim said the victim had sex with defendant and contracted a sexually transmitted disease was sufficient to support a statutory rape conviction under G.S. 14-27.7 A. State v. Kitchengs, 183 N.C. App. 369, 645 S.E.2d 166, 2007 N.C. App. LEXIS 1165 (2007).

Evidence supported defendant’s conviction for rape, statutory rape, sex offense, statutory sex offense, and sex offense in a parental role as: (1) defendant attacked the 14-year-old victim over a period of hours; (2) defendant’s expert testified that various wounds were inflicted while the victim was alive; (3) defendant raped the victim vaginally and anally while the victim was alive, leaving semen inside both her vagina and anus; (4) evidence from the victim’s lung tissue showed the victim was alive for a substantial period of time after the brain injury was inflicted; and (5) after hitting the victim in the head, defendant walked around thinking about how to cover up the crime, attempted to clean the victim up, and then sexually assaulted her body, all part of the same episode. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

There was substantial evidence to support convictions for incest under G.S. 14-178(a), and two counts of statutory sex offense of a person who was 15 years old in violation of G.S. 14-27.7 A(a), because: (1) the victim testified that defendant was her biological father and identified him in open court, and her birth certificate identified defendant as her father, providing direct evidence of defendant’s paternity; and (2) there was substantial direct and circumstantial evidence that defendant had vaginal intercourse or engaged in a sexual act with his daughter on multiple occasions while she was 15. State v. Ware, 188 N.C. App. 790, 656 S.E.2d 662, 2008 N.C. App. LEXIS 263 (2008).

Evidence of slight anal penetration by defendant was sufficient to defeat defendant’s motion to dismiss one count each of the statutory sex offense and sexual activity by substitute parent charges. State v. Sprouse, 217 N.C. App. 230, 719 S.E.2d 234, 2011 N.C. App. LEXIS 2434 (2011).

Evidence Sufficient to Withstand Motion to Dismiss. —

Evidence that the victim was defendant’s daughter and that they were not married, and that defendant pushed the victim down on his bed and said something sexual, but stopped after the victim told defendant that she had her period, was sufficient to withstand a motion to dismiss. State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267, 2006 N.C. App. LEXIS 2251 (2006).

Denial of motion to dismiss statutory sex offense charge was proper where the State presented sufficient evidence of each element which tended to show defendant committed sexual assaults upon the victim, the victim was 13 years old at the time in question, and defendant was at least six years older than the victim, to whom defendant was not lawfully married. State v. Wallace, 179 N.C. App. 710, 635 S.E.2d 455, 2006 N.C. App. LEXIS 2166 (2006).

There was sufficient evidence of defendant’s overt actions beyond mere preparation in defendant’s attempt to have vaginal intercourse with his daughter for purposes of an attempted statutory rape of a person who is 13, 14, or 15 years old under G.S. 14-27.7 A(a) and an attempted incest charge under G.S. 14-178(a)(ii) to go to the jury; defendant’s repeated asking of his daughter to have intercourse with him, when combined with his comments that he wanted to be “inside her” and be “her first,” and the repeated sexual acts, constituted sufficient evidence of overt sexual behavior from which it could be inferred that defendant intended to engage in vaginal intercourse with his victim. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Evidence Sufficient to Allow Charges to Go to Jury. —

Testimony of the victim, the victim’s mother, and defendant regarding the ages of defendant and the victim at time of the alleged commission of statutory rape was sufficient to allow the charges to go to the jury, the State was not required to produce birth certificates as evidence of the ages of the victim and defendant. State v. Cortes-Serrano, 195 N.C. App. 644, 673 S.E.2d 756, 2009 N.C. App. LEXIS 259 (2009).

As the victim testified that defendant had vaginal intercourse with her when she was 13, 14, and 15 years of age, (3) defendant w, and defendant’s testimony established that he was more than six years older than the victim and was not lawfully married to her, defendant’s motion to dismiss statutory rape charges was properly denied. State v. Carter, 198 N.C. App. 297, 679 S.E.2d 457, 2009 N.C. App. LEXIS 1174 (2009).

Defendant Not Entitled to Jury Instruction on Mistake of Fact. —

Defendant’s request for a jury instruction on mistake of fact as to the victim’s age was properly denied because statutory rape is a strict liability crime to which mistake of fact is no defense. State v. Browning, 177 N.C. App. 487, 629 S.E.2d 299, 2006 N.C. App. LEXIS 1079 (2006).

§ 14-27.31. Sexual activity by a substitute parent or custodian.

  1. If a defendant who has assumed the position of a parent in the home of a minor victim engages in vaginal intercourse or a sexual act with a victim who is a minor residing in the home, the defendant is guilty of a Class E felony.
  2. If a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim, the defendant is guilty of a Class E felony.
  3. Consent is not a defense to a charge under this section.

History. 1979, c. 682, s. 1; 1979, 2nd Sess., c. 1316, s. 9; 1981, c. 63; c. 179, s. 14; 1993, c. 539, s. 1132; 1994, Ex. Sess., c. 24, s. 14(c); 1999-300, s. 2; 2003-98, s. 1; 2015-181, s. 13(a), (b).

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

As to office of coordinator of services for victims of sexual assault, see G.S. 143B-394.1 et seq.

Editor’s Note.

This section was formerly codified as G.S. 14-27.7(a). It was recodified as G.S. 14-27.31 by Session Laws 2015-181, s. 13(a).

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 13(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2015-181, s. 13(b), effective December 1, 2015, rewrote the section heading, which read: “Intercourse and sexual offenses with certain victims; consent no defense”; deleted “or if a person having custody of a victim of any age or a person who is an agent or employee of any person, or institution, whether such institution is private, charitable, or governmental, having custody of a victim of any age engages in vaginal intercourse or a sexual act with such victim,” following “minor residing in the home” in subsection (a); added subsection (b); and added the subsection (c) designator. For applicability, see editor’s note.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For survey on new penalties for criminal behavior in schools, see 22 Campbell L. Rev. 253 (2000).

For comment, “The Hidden Dichotomy in the Law of Morality,” see 31 Campbell L. Rev. 591 (2009).

CASE NOTES

Hospital Patients. —

In enacting this statute and making it applicable to private and charitable institutions, whose patients are nearly all voluntary, the General Assembly obviously used the word “custody” in its broadest sense, intending thereby to protect from abuse all hospital patients, voluntary and committed alike. State v. Raines, 81 N.C. App. 299, 344 S.E.2d 138, 1986 N.C. App. LEXIS 2260 (1986), aff'd, 319 N.C. 258 , 354 S.E.2d 486, 1987 N.C. LEXIS 1932 (1987).

The protection of this section extends to voluntary patients in a private hospital. State v. Raines, 319 N.C. 358 , 354 S.E.2d 486 (1987).

Where Defendant Was Acting as Agent of Sheriff. —

In a prosecution for sexual activity by a custodian, the trial court did not err in barring in limine the introduction of a contract that, according to defendant, showed that he was an independent contractor and not an agent or employee of the sheriff’s office, because as a matter of law defendant was acting as agent of sheriff when the crimes were allegedly committed; further, the trial court did not err in prohibiting the cross-examination of the sheriff and the health care services administrator regarding the contract, because the trial court properly excluded evidence of the contract at trial. State v. Wilson, 183 N.C. App. 100, 643 S.E.2d 620, 2007 N.C. App. LEXIS 844 (2007), modified, aff'd, 362 N.C. 162 , 655 S.E.2d 359, 2008 N.C. LEXIS 32 (2008).

Convictions for sexual activity by a custodian and attempted sexual activity by a custodian were affirmed because defendant, who was a mental health clinician employed by an independent contractor that provided services to prisoners in a county jail, was an agent of the county sheriff so that defendant was criminally liable when defendant committed sexual acts with a prisoner in violation of G.S. 14-27.7(a). State v. Wilson, 362 N.C. 162 , 655 S.E.2d 359, 2008 N.C. LEXIS 32 (2008).

Job Placement Program Participant. —

The sixteen-year-old who allegedly had sex with defendant recreational assistant was under the care, preservation, and protection of the live-in job placement program where defendant worked and was, therefore, within its “custody” as defined by this section; although the program participants enjoyed much freedom and were able to withdraw from the program at any time, they got their food, clothing, and medical care from the program, and were subject to the program’s “zero tolerance” drug, alcohol, and violence policy and disciplined for violating that policy and other rules. State v. Jones, 143 N.C. App. 514, 548 S.E.2d 167, 2001 N.C. App. LEXIS 291 (2001).

Second-Degree Rape and Second-Degree Sexual Offense Distinguished from Custodial Sexual Offense. —

Second-degree rape and second-degree sexual offense require an act by force and against the will of another person. Custodial sexual offense does not. Custodial sexual offense requires that the perpetrator, or the perpetrator’s principal or employer, have custody of the victim. Second-degree rape and second-degree sexual offense do not. Custodial sexual offense thus requires proof of a fact which second-degree rape and second-degree sexual offense do not, and both second-degree rape and second-degree sexual offense require proof of a fact which custodial sexual offense does not. Double jeopardy considerations thus are not implicated. State v. Raines, 319 N.C. 358 , 354 S.E.2d 486 (1987).

Effect of Section on G.S. 14-27.4 . —

Argument that indictment under G.S. 14-27.4 was subject to dismissal on grounds that that statute had been partially repealed by this section was without merit, since the two statutes were enacted as parts of the same legislative act, Session Laws 1979, c. 682. An intent to simultaneously enact and repeal a law could not be attributed to the General Assembly. State v. Nations, 319 N.C. 318 , 354 S.E.2d 510, 1987 N.C. LEXIS 1934 (1987).

Consent is no defense to a charge under this section. State v. Raines, 72 N.C. App. 300, 324 S.E.2d 279, 1985 N.C. App. LEXIS 3058 (1985).

Marriage Not a Defense Where Victim Too Young to Lawfully Marry. —

Defendant could not claim the defense of marriage in an action charging defendant with, inter alia, attempted statutory sex offense and statutory rape, because defendant and the child, who was only 13, could not lawfully be married. State v. Ewell, 168 N.C. App. 98, 606 S.E.2d 914, 2005 N.C. App. LEXIS 169 (2005).

Knowledge of Victim’s Status. —

In a case in which defendant was convicted, inter alia, of a sex act by a custodian, he argued unsuccessfully that knowledge that he was the custodian was a requirement of the charge of sex offense by a custodian. The State was not required to present evidence of defendant’s knowledge of the victim’s status or condition in order to secure a conviction. State v. Coleman, 200 N.C. App. 696, 684 S.E.2d 513, 2009 N.C. App. LEXIS 1724 (2009).

Admissibility of Letter Written by Defendant. —

In prosecution for first degree rape and intercourse by a substitute parent, the trial court did not commit prejudicial error in admitting into evidence, over objection, a letter which the defendant wrote to the victim’s mother, in which defendant promised not to “bother” victim again, despite defendant’s contention that what he had meant was that he would not discipline the victim anymore. State v. Moses, 316 N.C. 356 , 341 S.E.2d 551, 1986 N.C. LEXIS 2059 (1986).

Testimony by Officer on Female Anatomy. —

When the defendant, a stepfather, was convicted for sexual offenses by an individual serving in a parental role, it was not reasonably probable that the jury was swayed by the officer’s “opinion” regarding female anatomy such that the jury would have reached a different result had the officer’s “opinion” not been before the jury. State v. Wilson, 260 N.C. App. 698, 818 S.E.2d 160, 2018 N.C. App. LEXIS 724 (2018).

Variance between Indictment and Proof. —

Where the indictment alleged that defendant engaged “in a sexual act, to wit: performing oral sex” on the child involved, but the State’s evidence showed only that the defendant placed his finger in victim’s vagina, which by definition is a separate sex offense under the terms of G.S. 14-27.1(4), the court erred in denying defendant’s motion for a directed verdict at the end of all the evidence, since the defendant was convicted of a crime which he had not been charged with. State v. Loudner, 77 N.C. App. 453, 335 S.E.2d 78, 1985 N.C. App. LEXIS 4106 (1985).

Where the indictment charging defendant with violation of this statute indicated that the charge was based on defendant’s having engaged in vaginal intercourse with the victim, and at trial, the state’s evidence tended to show attempted rape, attempted anal intercourse, and fellatio, and the State failed to present any evidence of vaginal penetration the defendant’s conviction of engaging in a sexual act by a substitute parent could not stand. State v. Bruce, 90 N.C. App. 547, 369 S.E.2d 95, 1988 N.C. App. LEXIS 630 (1988).

Indictment Sufficient. —

Indictment for sex offense in a parental role that matched the form required by G.S. 14-27.7 was sufficient to inform defendant of the charges against him. State v. Massey, 174 N.C. App. 216, 621 S.E.2d 633, 2005 N.C. App. LEXIS 2400 (2005), rev'd in part, 361 N.C. 406 , 646 S.E.2d 362, 2007 N.C. LEXIS 595 (2007).

Adding the words “at the time of the offense, the defendant was residing in the home with (the juvenile’s name)” to what otherwise was a facially valid indictment did not constitute a substantial alteration of the offenses charged in the indictment because these additional words did not add any previously omitted essential element of the crime of sexual activity by a substitute parent, G.S. 14-27.31(a) (2019). State v. Scott, 2021-NCCOA-355, 278 N.C. App. 585, 863 S.E.2d 194, 2021- NCCOA-355, 2021 N.C. App. LEXIS 387 (2021).

Factual basis for nolo contendere pleas to the charges of sexual activity by a substitute parent and crime against nature held adequate. State v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920, 1988 N.C. App. LEXIS 283 , cert. denied, 323 N.C. 177 , 373 S.E.2d 118, 1988 N.C. LEXIS 549 (1988).

Jury Instruction. —

In a case in which defendant was convicted of, inter alia, a sex offense by a custodian, while he moved to dismiss, he did not object to the trial court’s instructions on the charge of sex by a custodian, and since defendant’s knowledge that the victim was in his custody was not a required element of the charge of sex offense by a custodian, the trial court did not err in failing to include that defendant knew or should have known that the victim was in his custody in its instruction to the jury. State v. Coleman, 200 N.C. App. 696, 684 S.E.2d 513, 2009 N.C. App. LEXIS 1724 (2009).

When defendant was charged with first degree sexual offense with a child and a sex offense in a parental role, a disjunctive instruction allowing a jury to convict defendant if the jury found defendant committed, inter alia, analingus, when no such evidence was presented, was not plain error because, on the whole record, the instruction probably had no effect on the jury’s deliberations. State v. Martinez, 253 N.C. App. 574, 801 S.E.2d 356, 2017 N.C. App. LEXIS 384 (2017).

Sentencing of defendant for both crime against nature and sexual activity by a substitute parent involving the same victim did not violate the merger doctrine or subject him to double jeopardy. State v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920, 1988 N.C. App. LEXIS 283 , cert. denied, 323 N.C. 177 , 373 S.E.2d 118, 1988 N.C. LEXIS 549 (1988).

Double Jeopardy Not Shown. —

Defendant’s convictions of two violations of this section, for engaging in a sexual act and in intercourse with a person over whom his employer had custody, following his earlier acquittal of second degree rape under G.S. 14-27.3 and committing a sex act on a person who was physically helpless under G.S. 14-27.5 , and vacation of his conviction of engaging in a sex act by force and against victim’s will in violation of G.S. 14-27.5 did not violate the double jeopardy clauses of U.S. Const., Amend. V and N.C. Const., Art. I, § 19, as the offenses that defendant was convicted of were not lesser included offenses of the crimes that he was earlier tried for. State v. Raines, 81 N.C. App. 299, 344 S.E.2d 138, 1986 N.C. App. LEXIS 2260 (1986), aff'd, 319 N.C. 258 , 354 S.E.2d 486, 1987 N.C. LEXIS 1932 (1987).

Where two or more offenses are joined for judgment, one offense may properly be aggravated by evidence needed to prove a separate joined offense; in a case where sexual offense by a person in a parental role was not the most serious crime in the consolidated judgment and thus was not the offense from which defendant’s sentence was derived, the aggravator of abusing a position of trust did not apply to the crime of sexual offense by a person in a parental role, but rather properly applied to the most serious offense in each of the two consolidated judgments, the statutory sexual offense of a person aged 13, 14, or 15. State v. Tucker, 357 N.C. 633 , 588 S.E.2d 853, 2003 N.C. LEXIS 1411 (2003).

Aggravating Factor in Sentencing Held Error. —

Trial court erred in sentencing defendant, convicted of two violations of this section, by finding as an aggravating factor that the defendant “took advantage of a position of trust or confidence to commit the offense,” as evidence necessary to prove an element of the offense may not be used to prove any factor in aggravation, and the evidence necessary to convict defendant tended to show that he took advantage of his custodial position in committing the offenses involved. State v. Raines, 81 N.C. App. 299, 344 S.E.2d 138, 1986 N.C. App. LEXIS 2260 (1986), aff'd, 319 N.C. 258 , 354 S.E.2d 486, 1987 N.C. LEXIS 1932 (1987).

A relationship of trust and confidence was needed to prove the custodial element of custodial sexual offense. The evidence that proved the aggravating factor that the defendant took advantage of a position of trust or confidence to commit the offense thus was necessary to prove the custodial element of the offense, and the finding of the aggravating factor was proscribed by G.S. 15A-1340.4(a). State v. Raines, 319 N.C. 358 , 354 S.E.2d 486 (1987).

Where the trial court entered three separate judgments of conviction, it erred in using an element of an offense that defendant was convicted of, specifically the factor of abusing a position of trust, to prove a sentencing factor in aggravation. State v. Tucker, 156 N.C. App. 53, 575 S.E.2d 770, 2003 N.C. App. LEXIS 33 , rev'd, 357 N.C. 633 , 588 S.E.2d 853, 2003 N.C. LEXIS 1411 (2003).

Evidence Sufficient to Support Conviction. —

Sufficient evidence supported convictions for taking indecent liberties with a child under G.S. 14-202.1 , statutory sex offense under G.S. 14-27.7 A(a), and sexual activity by a custodian, G.S. 14-27.7 (a), where the 15-year-old victim, a patient in a behavioral hospital, testified that she had engaged in sexual activity with defendant, a mental health technician at the hospital, and where the victim’s mother and sister also testified that the victim told them about her interactions with defendant, and that they heard firsthand telephone conversations between the victim and defendant regarding specific sexual activity. State v. Evans, 162 N.C. App. 540, 591 S.E.2d 564, 2004 N.C. App. LEXIS 180 (2004).

Sufficient evidence showed defendant assumed the position of a parent in the victim’s home, as defendant paid for all of the victim’s support, including food, shelter, gifts and spending money, and defendant represented himself as the victim’s temporary custodian in seeking an evaluation of him for involuntary civil commitment for substance abuse; defendant did not dispute the other elements of the offense of sexual activity by a substitute parent. State v. Oakley, 167 N.C. App. 318, 605 S.E.2d 215, 2004 N.C. App. LEXIS 2185 (2004).

In a case in which defendant was convicted, inter alia, of a sex act by a custodian, he argued unsuccessfully that the trial court erred in denying his motion to dismiss the charge of sex offense by a custodian since the State presented substantial evidence on each and every element of G.S. 14-27.7(a) and that he was the perpetrator. During the relevant period, defendant was employed by a corporation at a boys’ group home, at that time a minor was living at a girls’ group home operated by the same corporation, and she performed fellatio on defendant while he worked at his job with the corporation. State v. Coleman, 200 N.C. App. 696, 684 S.E.2d 513, 2009 N.C. App. LEXIS 1724 (2009).

Evidence of slight anal penetration by defendant was sufficient to defeat defendant’s motion to dismiss one count each of the statutory sex offense and sexual activity by substitute parent charges. State v. Sprouse, 217 N.C. App. 230, 719 S.E.2d 234, 2011 N.C. App. LEXIS 2434 (2011).

Defendant’s motion to dismiss a sexual offense in a parental role charge was properly denied where he paid for the victim’s care and support at a time when she was legally unable to work and maintain herself, he made numerous representations of his parental and supervisory role over the victim, and he initiated a relationship of trust with the victim by approaching her with references to his same-aged daughter. State v. Sheridan, 263 N.C. App. 697, 824 S.E.2d 146, 2019 N.C. App. LEXIS 74 (2019).

Conviction for sexual offense by a person in a parental role was reversed where there was no evidence to support the finding that defendant and the victim had a relationship analogous to that of a parent and child; the evidence, taken in the light most favorable to the State, was sufficient to establish only that defendant babysat for the victims and was not the mother’s boyfriend or a de facto stepfather. State v. Bailey, 163 N.C. App. 84, 592 S.E.2d 738, 2004 N.C. App. LEXIS 300 (2004).

Satellite-Based Monitoring. —

Trial court erred in failing to follow the procedural framework set out in G.S. 14-208.40 A when it required defendant, who was convicted of violating G.S. 14-27.7(a), to register as a sex offender and enroll in satellite-based monitoring for his natural life because the trial waited to decide whether defendant fell within G.S. 14-208.40 A(b)(i) through (iv) until after it had a chance to review the risk assessment under G.S. 14-208.40A(b)(v); the trial court erred in considering the risk assessment before deciding whether defendant committed an aggravated offense, and it could not determine, based on the elements of the offense alone, that defendant engaged in a sexual act involving penetration. State v. Mann, 214 N.C. App. 155, 715 S.E.2d 213, 2011 N.C. App. LEXIS 1618 (2011).

§ 14-27.32. Sexual activity with a student.

  1. If a defendant, who is a teacher, school administrator, student teacher, school safety officer, or coach, at any age, or who is other school personnel, and who is at least four years older than the victim engages in vaginal intercourse or a sexual act with a victim who is a student, at any time during or after the time the defendant and victim were present together in the same school, but before the victim ceases to be a student, the defendant is guilty of a Class G felony, except when the defendant is lawfully married to the student. The term “same school” means a school at which the student is enrolled and the defendant is employed, assigned, or volunteers.
  2. A defendant who is school personnel, other than a teacher, school administrator, student teacher, school safety officer, or coach, and is less than four years older than the victim and engages in vaginal intercourse or a sexual act with a victim who is a student, is guilty of a Class I felony.
  3. This section shall apply unless the conduct is covered under some other provision of law providing for greater punishment.
  4. Consent is not a defense to a charge under this section.
  5. For purposes of this section, the terms “school”, “school personnel”, and “student” shall have the same meaning as in G.S. 14-202.4(d). For purposes of this section, the term “school safety officer” shall include a school resource officer or any other person who is regularly present in a school for the purpose of promoting and maintaining safe and orderly schools.

History. 1979, c. 682, s. 1; 1979, 2nd Sess., c. 1316, s. 9; 1981, c. 63; c. 179, s. 14; 1993, c. 539, s. 1132; 1994, Ex. Sess., c. 24, s. 14(c); 1999-300, s. 2; 2003-98, s. 1; 2015-44, s. 2; 2015-181, s. 14(a), (b).

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

As to office of coordinator of services for victims of sexual assault, see G.S. 143B-394.1 et seq.

Editor’s Note.

This section was formerly codified as G.S. 14-27.7(b). It was recodified as G.S. 14-27.32 by Session Laws 2015-181, s. 14(a), effective December 1, 2015.

Session Laws 2015-44, s. 1, provides: “This act may be cited as the ‘Protect Our Students Act’.”

Session Laws 2015-44, s. 5, made the amendment to this section by Session Laws 2015-44, s. 2, which substituted “Class I felony” for “Class A1 misdemeanor” at the end of subsection (b), applicable to offenses committed on or after December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification and amendment of this section by Session Laws 2015-181, s. 14(a), (b), effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2015-44, s. 2, effective December 1, 2015, substituted “Class I felony” for “Class A1 misdemeanor” at the end of subsection (b). For applicability, see editor’s note.

Session Laws 2015-181, s. 14(b), effective December 1, 2015, added the section heading; redesignated (b) as (a); added the designators (b) through (e); and substituted “section” for “subsection” once in (c) and twice in (e). For applicability, see editor’s note.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For survey on new penalties for criminal behavior in schools, see 22 Campbell L. Rev. 253 (2000).

For comment, “The Hidden Dichotomy in the Law of Morality,” see 31 Campbell L. Rev. 591 (2009).

§ 14-27.33. Sexual battery.

  1. A person is guilty of sexual battery if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person:
    1. By force and against the will of the other person; or
    2. Who has a mental disability or who is mentally incapacitated or physically helpless, and the person performing the act knows or should reasonably know that the other person has a mental disability or is mentally incapacitated or physically helpless.
  2. Any person who commits the offense defined in this section is guilty of a Class A1 misdemeanor.

History. 2003-252, s. 2; 2015-181, s. 15; 2018-47, s. 4(d).

Editor’s Note.

This section was formerly codified as G.S. 14-27.5 A. It was recodified as G.S. 14-27.33 by Session Laws 2015-181, s. 15, effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification of this section by Session Laws 2015-181, s. 15, effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the rewriting of subdivision (a)(2) of this section by Session Laws 2018-47, s. 4(d), effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2018-47, s. 4(d), rewrote subdivision (a)(2). For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

“Sexual Contact.” —

State was not required to show that the conduct of defendant, a massage therapist, in touching the two female clients of the salon where defendant worked resulted in penetration, as the crime of sexual battery involved sexual contact, as defined by G.S. 14-27.1(5), and through the use of force and against the will of the two clients in violation of G.S. 14-27.5 A(a)(1). The State presented sufficient evidence to show that defendant touched, inter alia, the breasts and buttocks of the two female clients and that the female clients were petrified as defendant did so because they did not know what defendant planned to do next. State v. Viera, 189 N.C. App. 514, 658 S.E.2d 529, 2008 N.C. App. LEXIS 608 (2008).

Lesser Included Offense. —

Since the indictment for first degree rape did not include the purpose element included in the sexual battery statute, it was insufficient to confer subject matter jurisdiction, and the trial court lacked jurisdiction to enter a judgment of defendant’s guilt on that offense; thus, the court had to arrest judgment. State v. Kelso, 187 N.C. App. 718, 654 S.E.2d 28, 2007 N.C. App. LEXIS 2523 (2007).

Evidence Held Insufficient. —

Defendant juvenile’s adjudication of delinquency for sexual battery under G.S. 14-27.5 A was not supported by sufficient evidence and was vacated under N.C. R. App. P. 2 where: (1) the victim testified that defendant touched and grabbed her and made a gesture of a squeezing motion; (2) defendant avowed that he accidentally hit her buttocks, but did not squeeze them; (3) while there was sufficient evidence of sexual contact under G.S. 14-27.1(5), there was insufficient evidence of a sexual purpose; (4) defendant’s alleged request to hit the victim, which she took to mean have sex with her, was made months before the contact; and (5) there was no evidence that the statement was connected with the contact. In re K.C., 226 N.C. App. 452, 742 S.E.2d 239, 2013 N.C. App. LEXIS 385 (2013).

District court erred in adjudicating defendant juvenile delinquent on the sexual battery charges as the State failed to introduce sufficient evidence that defendant touched the tops of the girls’ breasts for a sexual purpose because defendant consistently denied touching either girls’ breast, instead contending that he had only put his hands around their shoulders; neither the location nor the alleged manner of the touching was secretive in nature; and evidence was undisputed that defendant had been wiping the green glowing liquid from his glove on trees, signs, and other young people during the night — annoying, possibly even distressing and obnoxious, behavior — but not an obviously sexual act. In re S.A.A., 251 N.C. App. 131, 795 S.E.2d 602, 2016 N.C. App. LEXIS 1300 (2016).

§ 14-27.33A. Sexual contact or penetration under pretext of medical treatment.

  1. Definitions. —  The following definitions apply in this section:
    1. Incapacitated. — A patient’s incapability of appraising the nature of a medical treatment, either because the patient is unconscious or under the influence of an impairing substance, including, but not limited to, alcohol, anesthetics, controlled substances listed under Chapter 90 of the General Statutes, or any other drug or psychoactive substance capable of impairing a person’s physical or mental faculties.
    2. Medical treatment. — Includes an examination or a procedure.
    3. Patient. — A person who has undergone or is seeking to undergo medical treatment.
    4. Sexual contact. — The intentional touching of a person’s intimate parts or the intentional touching of the clothing covering the immediate area of the person’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or done in a sexual manner.
    5. Sexual penetration. — Sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, regardless of whether semen is emitted, if that intrusion can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or done in a sexual manner.
  2. Offense; Penalty. —  Unless the conduct is covered under some other provision of law providing greater punishment, a person who undertakes medical treatment of a patient is guilty of a Class C felony if the person does any of the following in the course of that medical treatment:
    1. Represents to the patient that sexual contact between the person and the patient is necessary or will be beneficial to the patient’s health and induces the patient to engage in sexual contact with the person by means of the representation.
    2. Represents to the patient that sexual penetration between the person and the patient is necessary or will be beneficial to the patient’s health and induces the patient to engage in sexual penetration with the person by means of the representation.
    3. Engages in sexual contact with the patient while the patient is incapacitated.
    4. Engages in sexual penetration with the patient while the patient is incapacitated.
  3. This section does not prohibit a person from being charged with, convicted of, or punished for any other violation of law that is committed by that person while violating this section.
  4. The court may order a term of imprisonment imposed for a violation of this section to be served consecutively to a term of imprisonment imposed for any other crime, including any other violation of law arising out of the same transaction as the violation of this section.

History. 2019-191, s. 43(a).

Editor’s Note.

Session Laws 2019-191, s. 43(b), made this section, as added by Session Laws 2019-191, s. 43(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

§ 14-27.34. No defense that victim is spouse of person committing act.

A person may be prosecuted under this Article whether or not the victim is the person’s legal spouse at the time of the commission of the alleged rape or sexual offense.

History. 1979, c. 682, s. 1; 1987, c. 742; 1993, c. 274, s. 1; 2015-181, s. 15.

Editor’s Note.

This section was formerly codified as G.S. 14-27.8 . It was recodified as G.S. 14-27.34 by Session Laws 2015-181, s. 15, effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification of this section by Session Laws 2015-181, s. 15, effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For comment, “Old Wine in New Bottles: The ‘ Marital’ Rape Allowance,” see 72 N.C.L. Rev. 261 (1993).

CASE NOTES

Editor’s Note. —

The cases cited below were decided prior to the 1993 amendment which abolished the spousal defense to a prosecution for rape or sexual offense.

Strict Construction of Section. —

This section is in derogation of the common law, and must be strictly construed. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

This section is not a separate rape offense. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

This section does not enumerate additional elements of rape which must be proved by the State. Rather, it abolishes, in part, the common law defense of marriage. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

Effect of Section Is to Bar Prosecution. —

The wording of this section does not suggest that defendant must wait until prosecution is underway to offer proof concerning his marital status. This section has the effect of barring prosecution altogether. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

Marriage as Plea in Bar. —

Marriage is not a defense to be raised by defendant only at trial. Marriage as a defense to rape is raised by a plea in bar to prevent trial of cases which do not meet the criteria of this section. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

Plea in Bar as Inquiry as to Status. —

A plea in bar under this section is not an inquiry into what defendant did, but into whether defendant was married and not separated “pursuant to a written agreement or a judicial decree” (now not separated) at the time of the incident. This is an inquiry into status. An answer in the affirmative would bar prosecution of a defendant. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

Living Separate and Apart. —

As amended in 1987, this section only requires that a husband and wife be “living separate and apart.” State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

Under this section as it read prior to the 1987 amendment, the parties had to be “living separate and apart pursuant to a written agreement or a judicial decree.” The only judicial decree which would constitute a judicial separation for such purposes was a decree for a divorce from bed and board. An ex parte order requiring defendant and his wife to stay away from one another and requiring defendant to halt his harassment of his wife did not rise to the level of a judicial decree of separation as was required by this section. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

This section does not require a separate form of indictment other than the one provided for by G.S. 15-144.1 . State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

Sufficiency of Indictment. —

Rape indictment drawn in accordance with G.S. 15-144.1 was sufficient enough to let defendant know that he was charged with the rape of his estranged wife and to allow him to prepare his defense. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

§ 14-27.35. No presumption as to incapacity.

In prosecutions under this Article, there shall be no presumption that any person under the age of 14 years is physically incapable of committing a sex offense of any degree or physically incapable of committing rape, or that a male child under the age of 14 years is incapable of engaging in sexual intercourse.

History. 1979, c. 682, s. 1; 2015-181, s. 15.

Editor’s Note.

This section was formerly codified as G.S. 14-27.9 . It was recodified as G.S. 14-27.35 by Session Laws 2015-181, s. 15, effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification of this section by Session Laws 2015-181, s. 15, effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

CASE NOTES

Infants of fourteen and over are not entitled to any presumption of incapacity to commit rape. State v. Rogers, 275 N.C. 411 , 168 S.E.2d 345, 1969 N.C. LEXIS 411 (1969), cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518, 1970 U.S. LEXIS 3419 (1970) (decided under former G.S. 14-21 ).

§ 14-27.36. Evidence required in prosecutions under this Article.

It shall not be necessary upon the trial of any indictment for an offense under this Article where the sex act alleged is vaginal intercourse or anal intercourse to prove the actual emission of semen in order to constitute the offense; but the offense shall be completed upon proof of penetration only. Penetration, however slight, is vaginal intercourse or anal intercourse.

History. 1979, c. 682, s. 1; 2015-181, s. 15.

Editor’s Note.

This section was formerly codified as G.S. 14-27.10 . It was recodified as G.S. 14-27.36 by Session Laws 2015-181, s. 15, effective December 1, 2015.

Session Laws 2015-181, s. 48, made the recodification of this section by Session Laws 2015-181, s. 15, effective December 1, 2015, and applicable to offenses committed on or after that date, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

CASE NOTES

Penetration is an essential element of both rape and sodomy. State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980).

Penetration Without Emission Sufficient. —

There is “carnal knowledge” or “sexual intercourse” in a legal sense if there is the slightest penetration of the sexual organ of the female by the sexual organ of the male. It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient. State v. Murry, 277 N.C. 197 , 176 S.E.2d 738, 1970 N.C. LEXIS 565 (1970); State v. Jackson, 18 N.C. App. 234, 196 S.E.2d 568, 1973 N.C. App. LEXIS 1823 (1973) (decided under former G.S. 14-21 ).

The terms carnal knowledge and sexual intercourse are synonymous. There is carnal knowledge or sexual intercourse in a legal sense if there is any slightest penetration of the sexual organ of the female by the sexual organ of the male. State v. Jones, 249 N.C. 134 , 105 S.E.2d 513, 1958 N.C. LEXIS 442 (1958); State v. Burell, 252 N.C. 115 , 113 S.E.2d 16, 1960 N.C. LEXIS 395 (1960); State v. Temple, 269 N.C. 57 , 152 S.E.2d 206, 1967 N.C. LEXIS 1026 (1967).

Evidence Sufficient to Support Finding of Penetration. —

Testimony by the prosecutrix in a rape case that defendant had “sex” and “intercourse” with her was sufficient to support a finding by the jury that there was penetration. State v. Ashford, 301 N.C. 512 , 272 S.E.2d 126, 1980 N.C. LEXIS 1178 (1980).

Victim’s testimony that defendant inserted his penis barely like not a lot, into her butt was sufficient evidence of anal penetration. State v. Sprouse, 217 N.C. App. 230, 719 S.E.2d 234, 2011 N.C. App. LEXIS 2434 (2011).

Article 8. Assaults.

§ 14-28. Malicious castration.

If any person, of malice aforethought, shall unlawfully castrate any other person, or cut off, maim or disfigure any of the privy members of any person, with intent to murder, maim, disfigure, disable or render impotent such person, the person so offending shall be punished as a Class C felon.

History. 1831, c. 40, s. 1; R.C., c. 34, s. 4; 1868-9, c. 167, s. 6; Code, s. 999; Rev., s. 3627; C.S., s. 4210; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1133; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

CASE NOTES

Elements of the offense of maliciously maiming a privy member as condemned by this section are: (1) The accused must act with malice aforethought, (2) the act must be done on purpose and unlawfully, (3) the act must be done with intent to maim or disfigure a privy member of the person assaulted, and (4) there must be permanent injury to the privy member of the person assaulted. State v. Beasley, 3 N.C. App. 323, 164 S.E.2d 742, 1968 N.C. App. LEXIS 856 (1968).

Intent. —

An intent to maim or disfigure a privy member is prima facie to be inferred from an act which does in fact disfigure, unless the presumption be repelled by evidence to the contrary. State v. Beasley, 3 N.C. App. 323, 164 S.E.2d 742, 1968 N.C. App. LEXIS 856 (1968).

The offense of maiming a privy member condemned by G.S. 14-29 is a lesser included offense of this section, proof of malice aforethought, or of a preconceived intention to commit the maiming of the privy member, not being necessary to conviction under G.S. 14-29 . State v. Beasley, 3 N.C. App. 323, 164 S.E.2d 742, 1968 N.C. App. LEXIS 856 (1968).

Nonsuit Denied Where Evidence Sufficient to Show Maiming without Malice. —

In a prosecution upon an indictment charging a malicious maiming of a privy member in violation of this section, defendant’s motion for nonsuit of the “felony charge” was properly denied where there was sufficient evidence to support conviction under G.S. 14-29 of maiming a privy member without malice aforethought, both offenses being felonies, and the offense condemned by G.S. 14-29 being a lesser included offense of this section. State v. Beasley, 3 N.C. App. 323, 164 S.E.2d 742, 1968 N.C. App. LEXIS 856 (1968).

Sufficiency of the Evidence. —

Trial court did not err in denying defendant’s motion to dismiss the charge of attempted malicious castration, under G.S. 14-28 , because there was sufficient evidence of each element of the crime charged and evidence that defendant was the perpetrator. The testimony as to the series of acts which defendant committed, especially their frequency, nature, and escalating level of violence, could have led a reasonable juror to conclude that defendant had malice towards the juvenile victim prior to the assault, that such malice motivated defendant to assault the victim’s privy member, and that in doing so defendant specifically intended to disfigure the victim’s penis, either by stomping on it or by cutting the victim with a knife and thereby to further humiliate and emasculate the victim. State v. Lanford, 225 N.C. App. 189, 736 S.E.2d 619, 2013 N.C. App. LEXIS 71 (2013).

Appeal from Sentence for Punishment. —

Upon conviction of the criminal offense inhibited by this section, sentence of the court for a period within that allowed by statute will not be considered on appeal as a cruel or unusual punishment against the provision of N.C. Const., Art. I, § 14 (now see N.C. Const., Art. I, § 27), or discriminatory against the principal actor in committing the crime, when the others participating therein to a lesser extent have been sentenced for shorter terms, the sentences imposed being left largely in the discretion of the trial court, and in the absence of an abuse of this discretion not reviewable on appeal. State v. Griffin, 190 N.C. 133 , 129 S.E. 410, 1925 N.C. LEXIS 27 (1925).

§ 14-28.1. Female genital mutilation of a child.

  1. Legislative Intent. —  The General Assembly finds that female genital mutilation is a crime that causes a long-lasting impact on the victim’s quality of life and has been recognized internationally as a violation of the human rights of girls and women. The practice is mostly carried out on girls under the age of 15 years old. The General Assembly also recognizes that the practice includes any procedure that intentionally alters or injures the female genital organs for nonmedical reasons. These procedures can cause severe pain, excessive bleeding, urinary problems, and death. Therefore, the General Assembly enacts this law to protect these vulnerable victims.
  2. Mutilation. —  A person who knowingly and unlawfully circumcises, excises, or infibulates the whole or any part of the labia majora, labia minora, or clitoris of a child less than 18 years of age is guilty of a Class C felony.
  3. Consent to Mutilation. —  A parent, or a person providing care to or supervision of a child less than 18 years of age, who consents to or permits the unlawful circumcision, excision, or infibulation, in whole or in any part, of the labia majora, labia minora, or clitoris of the child, is guilty of a Class C felony.
  4. Removal for Mutilation. —  A parent, or a person providing care to or supervision of a child less than 18 years of age, who knowingly removes or permits the removal of the child from the State for the purpose of having the child’s labia majora, labia minora, or clitoris circumcised, excised, or infibulated, is guilty of a Class C felony.
  5. Exceptions. —  A surgical operation is not a violation of this section if the operation meets either of the following requirements:
    1. The operation is necessary to the health of the person on whom it is performed and is performed by a person licensed in the State as a medical practitioner.
    2. The operation is performed on a person in labor who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in this State as a medical practitioner or certified nurse midwife, or a person in training to become licensed as a medical practitioner or certified nurse midwife.
  6. No Defense. —  It is not a defense to prosecution under this section that the person on whom the circumcision, excision, or infibulation is performed, or any other person, believes that the circumcision, excision, or infibulation is required as a matter of custom or ritual, or that the person on whom the circumcision, excision, or infibulation is performed consented to the circumcision, excision, or infibulation.

History. 2019-183, s. 1.

Editor’s Note.

Session Laws 2019-183, s. 2, is a severability clause.

Session Laws 2019-183, s. 3, made this section, as added by Session Laws 2019-183, s. 1, effective October 1, 2019, and applicable to offenses committed on or after that date.

§ 14-29. Castration or other maiming without malice aforethought.

If any person shall, on purpose and unlawfully, but without malice aforethought, cut, or slit the nose, bite or cut off the nose, or a lip or an ear, or disable any limb or member of any other person, or castrate any other person, or cut off, maim or disfigure any of the privy members of any other person, with intent to kill, maim, disfigure, disable or render impotent such person, the person so offending shall be punished as a Class E felon.

History. 1754, c. 56, P.R; 1791, c. 339, ss. 2, 3, P.R; 1831, c. 40, s. 2; R.C., c. 34, s. 47; Code, s. 1000; Rev., s. 3626; C.S., s. 4211; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1134; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

History of Section. —

See State v. Bass, 255 N.C. 42 , 120 S.E.2d 580, 1961 N.C. LEXIS 567 (1961).

The words “without malice aforethought” were included in this section to differentiate it from G.S. 14-30 , and make it clear and definite that allegation and proof of premeditation (prepense) are not a requirement in the prosecution of offenses under this section. State v. Bass, 255 N.C. 42 , 120 S.E.2d 580, 1961 N.C. LEXIS 567 (1961).

Proof of Malice Aforethought Not Necessary. —

Proof of malice aforethought, or of a preconceived intention to commit the maiming, is not necessary. State v. Girgin, 23 N.C. 121 , 1840 N.C. LEXIS 79 (1840).

Intent is an essential element of the offense under this section. State v. Haulk, 38 N.C. App. 357, 247 S.E.2d 798, 1978 N.C. App. LEXIS 2182 (1978).

This section does not purport to define an offense based on negligence or carelessness; it condemns an intentional offense. State v. Haulk, 38 N.C. App. 357, 247 S.E.2d 798, 1978 N.C. App. LEXIS 2182 (1978).

Where the import of instructions to the jury in a prosecution under this section was that something less than intentional conduct, gross carelessness or criminal negligence, for example, would suffice for conviction, a new trial was necessary. State v. Haulk, 38 N.C. App. 357, 247 S.E.2d 798, 1978 N.C. App. LEXIS 2182 (1978).

Presumption of Intent to Maim. —

Near severing of the victim’s finger trigger the presumption that defendant intended to maim the victim. State v. Flaugher, 214 N.C. App. 370, 713 S.E.2d 576, 2011 N.C. App. LEXIS 1754 (2011).

Lesser Included Offense of G.S. 14-28 . —

The offense of maiming a privy member condemned by this section is a lesser included offense of G.S. 14-28 , proof of malice aforethought, or of a preconceived intention to commit the maiming of the privy member not being necessary to conviction under this section. State v. Beasley, 3 N.C. App. 323, 164 S.E.2d 742, 1968 N.C. App. LEXIS 856 (1968).

Nonsuit Denied Where Evidence Sufficient to Show Maiming Without Malice. —

In a prosecution upon an indictment charging a malicious maiming of a privy member in violation of G.S. 14-28 , defendant’s motion for nonsuit of the “felony charge” was properly denied where there was sufficient evidence to support conviction under this section of maiming a privy member without malice aforethought, both offenses being felonies, and the offense condemned by this section being a lesser included offense of G.S. 14-28 . State v. Beasley, 3 N.C. App. 323, 164 S.E.2d 742, 1968 N.C. App. LEXIS 856 (1968).

Consent of Victim No Defense. —

Under this section the elements of the offense of mayhem are the same as under the common law, and the consent of the victim does not constitute a defense in a prosecution under this statute. State v. Bass, 255 N.C. 42 , 120 S.E.2d 580, 1961 N.C. LEXIS 567 (1961).

Biting Or Biting Off Nose, Lip or Ear. —

While biting off the nose, lip, or ear of another is a proscribed act under this section, merely biting the nose, lip, or ear of another is not. State v. Foy, 130 N.C. App. 466, 503 S.E.2d 399, 1998 N.C. App. LEXIS 934 (1998).

Total Separation of Ear from Head Required for Conviction. —

Maiming of a victim’s ear occurs only when a victim’s ear is totally severed from the victim’s head or a part of a victim’s ear is totally severed from the rest of the victim’s ear; thus, defendant’s motion to dismiss a maiming charge should have been granted where the State failed to prove that the victim’s ear had been completely removed from the victim’s head. State v. Scott, 161 N.C. App. 104, 587 S.E.2d 485, 2003 N.C. App. LEXIS 1999 (2003).

§ 14-30. Malicious maiming.

If any person shall, of malice aforethought, unlawfully cut out or disable the tongue or put out an eye of any other person, with intent to murder, maim or disfigure, the person so offending, his counselors, abettors and aiders, knowing of and privy to the offense, shall be punished as a Class C felon.

History. 22 and 23 Car. II, c. 1 (Coventry Act); 1754, c. 56, P.R; 1791, c. 339, s. 1, P.R; 1831, c. 12; R.C., c. 34, s. 14; Code, s. 1080; Rev., s. 3636; C.S., s. 4212; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1135; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

History of Section. —

See State v. Bass, 255 N.C. 42 , 120 S.E.2d 580, 1961 N.C. LEXIS 567 (1961).

When Corpus Delicti Complete. —

Under this section the corpus delicti is complete, if the maim be committed on purpose, and with intent to disfigure, although without malice prepense. State v. Crawford, 13 N.C. 425 , 1830 N.C. LEXIS 79 (1830).

Indictment — Necessary Allegations. —

An indictment, for biting off ear, must state the offense to be done on purpose, as well as unlawfully. State v. Ormond, 18 N.C. 119 , 1834 N.C. LEXIS 29 (1834).

Same — Unnecessary Allegations. —

But it need not be alleged whether it was the right or left ear. State v. Green, 29 N.C. 39 , 1846 N.C. LEXIS 11 (1846).

Same — Sufficient Allegations. —

An indictment charging the defendant with unlawfully, willfully, feloniously and with malice aforethought putting out the right eye of named person with her thumbs with intent to maim and disfigure named person charged a violation of this section. State v. Atkins, 242 N.C. 294 , 87 S.E.2d 507, 1955 N.C. LEXIS 501 (1955).

Conviction Under This Section and § 14-32. —

Elements of malice aforethought and intent to murder, maim or disfigure, necessary elements of this section, are not elements of G.S. 14-32(b). Additionally, use of a deadly weapon is required for a violation of G.S. 14-32(b), but not for this section; therefore, defendant was properly convicted of and punished for the offenses of assault with a deadly weapon inflicting serious injury and malicious maiming. State v. Aytche, 98 N.C. App. 358, 391 S.E.2d 43, 1990 N.C. App. LEXIS 388 (1990).

“Malice Aforethought” Construed. —

The words “malice aforethought” do not mean an actual, express or preconceived disposition; but import an intent, at the moment, to do, without lawful authority, and without the pressure of necessity, that which the law forbids. State v. Crawford, 13 N.C. 425 , 1830 N.C. LEXIS 79 (1830).

Malicious Intent Express or Implied. —

The malicious intent to maim or disfigure may either be expressed or implied from circumstances. State v. Irwin, 2 N.C. 112 , 1794 N.C. LEXIS 30 (1794).

Proof of Grudges or Threatenings Not Necessary. —

Proof of antecedent grudges, threatenings or an express design is not necessary. State v. Irwin, 2 N.C. 112 , 1794 N.C. LEXIS 30 (1794).

What Constitutes Maiming. —

To constitute maiming under this statute, by biting off an ear, it is not necessary that the whole ear shall be bitten off — it is sufficient if a part only is taken off, provided enough is taken off to alter and impair the natural personal appearance, and, to ordinary observation, to render the person less comely. State v. Girgin, 23 N.C. 121 , 1840 N.C. LEXIS 79 (1840).

Presumptions. —

An intent to disfigure is prima facie to be inferred from an act which does in fact disfigure, unless that presumption be repelled by evidence on the part of the accused of a different intent, or at least of the absence of the intent mentioned in the statute. State v. Girgin, 23 N.C. 121 , 1840 N.C. LEXIS 79 (1840).

“To wound” is distinguished from “to maim” in that the latter implies a permanent injury to a member of the body or renders a person lame or defective in bodily vigor. State v. Malpass, 226 N.C. 403 , 38 S.E.2d 156, 1946 N.C. LEXIS 449 (1946).

Where there was no evidence of permanent injury to the privy parts of the prosecuting witness, it was error for the court to submit to jury the question of the guilt of defendant under this section. State v. Malpass, 226 N.C. 403 , 38 S.E.2d 156, 1946 N.C. LEXIS 449 (1946).

Total Loss of Eyesight. —

Defendant’s challenge to the jury instruction on maiming lacked merit, because the total loss of eyesight, without actual physical removal, was sufficient to support a finding that an eye was “put out” and thus supported the conviction for malicious maiming. State v. Coakley, 238 N.C. App. 480, 767 S.E.2d 418, 2014 N.C. App. LEXIS 1341 (2014).

First Blow or Sudden Affray. —

The first blow, or a sudden affray, does not palliate the offense of maiming under the act of 1791; for if it did, the statute would be of little avail. State v. Crawford, 13 N.C. 425 , 1830 N.C. LEXIS 79 (1830).

Same — Accident or Self-Defense. —

When the act is proved, the law presumes that it was done on purpose. The burden is therefore upon defendant to show that it was done accidentally or in self-defense. State v. Evans, 2 N.C. 281 , 1796 N.C. LEXIS 32 (1796); State v. Skidmore, 87 N.C. 509 , 1882 N.C. LEXIS 109 (1882).

§ 14-30.1. Malicious throwing of corrosive acid or alkali.

If any person shall, of malice aforethought, knowingly and willfully throw or cause to be thrown upon another person any corrosive acid or alkali with intent to murder, maim or disfigure and inflicts serious injury not resulting in death, he shall be punished as a Class E felon.

History. 1963, c. 354; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1136; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Necessary elements of the crime of malicious throwing of corrosive acid or alkaline are that the perpetrator (1) throw or cause the substance to be thrown (2) upon another person (3) with intent to murder, maim or disfigure. State v. Riddick, 316 N.C. 127 , 340 S.E.2d 422, 1986 N.C. LEXIS 1924 (1986).

Unnecessary for Jury to Find Defendant’s Motive Was Intent to Murder. —

In a prosecution for maliciously throwing a corrosive acid or alkali, it is not necessary for the jury to find that the intent to murder, maim, or disfigure was the sole or even the dominant motivation for defendant’s actions. State v. Wingard, 10 N.C. App. 101, 177 S.E.2d 765, 1970 N.C. App. LEXIS 1196 (1970).

Defendant May Not Complain if Jury Finds Intent to Murder. —

One who, without provocation, deliberately throws corrosive acid or alkali into the face and eyes of another, thereby causing serious injuries, is in no position to complain if a jury finds that he intended his act to produce the very result which it did produce, to murder, maim, or disfigure. State v. Wingard, 10 N.C. App. 101, 177 S.E.2d 765, 1970 N.C. App. LEXIS 1196 (1970).

Error in Charging on Lesser Included Offense Not Prejudicial. —

In a prosecution for the malicious throwing of corrosive acid or alkali with the intent to murder, maim, or disfigure, any error by the trial court in charging on the lesser included offense of assault could not have been prejudicial to the defendant. State v. Wingard, 10 N.C. App. 101, 177 S.E.2d 765, 1970 N.C. App. LEXIS 1196 (1970).

Evidence Held Insufficient. —

Evidence of muriatic acid on the windowsill and front door of burglary victim’s residence was not sufficient to support a conviction of malicious throwing of acid, as there was no evidence that defendant intended by use of the acid to murder, maim or disfigure anyone, that he actually threw or attempted to throw the acid, or that he threw it or attempted to throw it at some person. State v. Riddick, 316 N.C. 127 , 340 S.E.2d 422, 1986 N.C. LEXIS 1924 (1986).

§ 14-31. Maliciously assaulting in a secret manner.

If any person shall in a secret manner maliciously commit an assault and battery with any deadly weapon upon another by waylaying or otherwise, with intent to kill such other person, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, he shall be punished as a Class E felon.

History. 1887, c. 32; Rev., s. 3621; 1919, c. 25; C.S., s. 4213; 1969, c. 602, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1137; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to an assault in this State injuring person in another State, see G.S. 15-132 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

The felony described in this section is often referred to as malicious secret assault and battery with a deadly weapon. State v. Lewis, 274 N.C. 438 , 164 S.E.2d 177, 1968 N.C. LEXIS 799 (1968).

Elements of Offense. —

On a trial under a criminal indictment the burden is on the State to show beyond a reasonable doubt the ingredients or elements necessary to constitute the statutory offense, or the lower degree of the same crime for which a verdict is permissible, and where assault and battery, prohibited by this section, are charged, the State must accordingly show that it was maliciously done with a deadly weapon, secretly by waylaying or otherwise, etc., with intent to kill, and when the evidence was conflicting, it was an expression of opinion inhibited by G.S. 1-180 (now see G.S. 1-180 .1), for the judge to charge the jury that if they believed the evidence, a cold-blooded and cruel assault had been committed. State v. Kline, 190 N.C. 177 , 129 S.E. 417, 1925 N.C. LEXIS 37 (1925).

The following elements must be proven beyond a reasonable doubt in order to establish the crime of secret assault: (1) secret manner; (2) malice; (3) assault and battery; (4) deadly weapon; and (5) intent to kill. State v. Hill, 287 N.C. 207 , 214 S.E.2d 67, 1975 N.C. LEXIS 1077 (1975); State v. Green, 101 N.C. App. 317, 399 S.E.2d 376, 1991 N.C. App. LEXIS 12 (1991).

Legislative Intent. —

This section specifies that a person has to assault another “with intent to kill such other person,” and refers explicitly to “the person so assaulted.” The language is clearly indicative of legislative intent that to find a defendant guilty of this offense, the jury must find unanimously that he committed the assault on a particular individual. State v. Lyons, 330 N.C. 298 , 410 S.E.2d 906 (1991).

Construction With Other Provisions. —

The General Assembly intended that consecutive sentences could be imposed against a defendant who contemporaneously violated both this section and G.S. 14-32(a). Although both sections contain three common elements, each contains specific additional elements not contained by the other. State v. Woodberry, 126 N.C. App. 78, 485 S.E.2d 59, 1997 N.C. App. LEXIS 367 (1997).

Intent is a prescribed element of secret assault under this section. State v. Currie, 19 N.C. App. 17, 198 S.E.2d 28, 1973 N.C. App. LEXIS 1555 (1973).

Infliction of serious injury need not be shown at all in a prosecution under this section. State v. Hill, 287 N.C. 207 , 214 S.E.2d 67, 1975 N.C. LEXIS 1077 (1975).

Effect of Words “or Otherwise.” —

The legislature, after denouncing as criminal secret assaults with intent to kill, and after giving one explicit illustration, added the words “or otherwise,” in order to prevent the application of the maxim expressio unius exclusio alterrius, thus including every other manner of making secret attempts, regardless of the attendant circumstances. State v. Shade, 115 N.C. 757 , 20 S.E. 537, 1894 N.C. LEXIS 311 (1894).

Instructions in a Disjunctive Form. —

Instructions in a disjunctive form on the charge of maliciously assaulting in a secret manner were fatally ambiguous, thereby resulting in an uncertain verdict in violation of defendant’s right to a unanimous verdict. State v. Lyons, 330 N.C. 298 , 410 S.E.2d 906 (1991).

Indictment omitting the words “by waylaying or otherwise,” was held sufficient. State v. Shade, 115 N.C. 757 , 20 S.E. 537, 1894 N.C. LEXIS 311 (1894).

Assault with Intent to Commit Murder. —

Attempts to commit any of the four capital offenses were formerly felonies, but during the prosecution for “Ku Klux” troubles the offense of assault with intent to commit murder was reduced to a simple misdemeanor. The act of 1887, ch. 32, restored the grade of the offense to a felony, except in those cases in which it is committed openly, giving the assailed an opportunity to know his assailant. State v. Telfair, 109 N.C. 878 , 13 S.E. 726, 1891 N.C. LEXIS 333 (1891); State v. Harris, 120 N.C. 577 , 26 S.E. 774, 1897 N.C. LEXIS 134 (1897).

What Constitutes Secret Assault. —

While it is not required for the conviction of a secret assault, under the provisions of this section, that the assailed should not have been aware of the presence of his assailant, it is necessary that the purpose of the assailant be not previously made known to him; and where the evidence did not tend to show that it was a secret assault, within the intent and meaning of the statute, an instruction to the contrary was reversible error. State v. Oxendine, 187 N.C. 658 , 122 S.E. 568, 1924 N.C. LEXIS 368 (1924).

In the context of an assault case, “lying in wait” is nothing more or less than taking the victim by surprise, an element of secret assault, a separate but joinable offense. State v. Puckett, 66 N.C. App. 600, 312 S.E.2d 207, 1984 N.C. App. LEXIS 2934 (1984).

Trial court erred in denying defendant’s motion to dismiss because the State did not produce substantial evidence as to the element of secret manner where (1) the State had not presented any evidence that the victims were unaware of defendants’ purpose prior to the attack nor that defendants intended to be furtive in their assault; (2) the State’s brief lacked any argument that defendants attempted to be furtive in their approach of the car and its occupants; and (3) defendants did not conceal themselves somewhere to wait, and they did not plan an attack to occur in the dark or from behind. State v. Holcombe, 203 N.C. App. 530, 691 S.E.2d 740, 2010 N.C. App. LEXIS 648 (2010).

Same — Assault from Behind. —

An assault made from behind and in such a manner as to prevent the person assaulted from knowing who his assailant is, or that the blow is about to be struck, is a secret assault. State v. Harris, 120 N.C. 577 , 26 S.E. 774, 1897 N.C. LEXIS 134 (1897).

Same — Assault by Means of Poison. —

An assault by means of poison comes within the intent of our statutes making an assault with a deadly weapon with intent to kill punishable as a felony. State v. Alderman, 182 N.C. 917 , 110 S.E. 59, 1921 N.C. LEXIS 365 (1921).

Same — Assault Facing Victim. —

Where one, facing another or walking up in front of him, draws a pistol from a hip-pocket and shoots him without warning, it is not a secret assault, within the meaning of this section. State v. Patton, 115 N.C. 753 , 20 S.E. 538, 1894 N.C. LEXIS 310 (1894).

Same — Sufficiency of Evidence. —

For sufficiency of evidence to prove a secret assault, see State v. Bridges, 178 N.C. 733 , 101 S.E. 29, 1919 N.C. LEXIS 549 (1919).

The “secret manner” element of the crime was met, where the victim testified that he observed defendant running into the woods and did not know what defendant was doing at the time, and he also testified that he did not know why defendant wanted to shoot him. State v. Green, 101 N.C. App. 317, 399 S.E.2d 376, 1991 N.C. App. LEXIS 12 (1991).

Victim Must Not Know of Defendant’s Purpose. —

Regarding defendant’s “secret manner,” the victim does not have to be aware of the defendant’s presence, but it is necessary that the victim not know the defendant’s purpose. State v. Green, 101 N.C. App. 317, 399 S.E.2d 376, 1991 N.C. App. LEXIS 12 (1991).

Defendant’s conviction under G.S. 14-31 for secret assault of a second victim during a burglary was improper because the second victim, who awoke to the first victim’s scream and lunged at defendant, was aware of defendant’s presence and purpose before defendant’s assault on the second victim began. State v. Wright, 210 N.C. App. 52, 708 S.E.2d 112, 2011 N.C. App. LEXIS 306 (2011).

Evidence Permissible to Show Malice. —

As bearing on the question of malice and felonious intent, the State was allowed to show that, a week or two before the happening of the offenses charged in the bill of indictment, the defendant had been seen about the home of the prosecuting witness; that he had shot at his house and threatened to shoot him. State v. Miller, 189 N.C. 695 , 128 S.E. 1, 1925 N.C. LEXIS 383 (1925).

Instruction. —

For charge not sufficiently explaining the offense, see State v. Vanderburg, 200 N.C. 713 , 158 S.E. 248, 1931 N.C. LEXIS 419 (1931).

Verdict for Simple Assault. —

Upon the trial of an indictment charging a secret felonious assault, verdict may be rendered for simple assault. State v. Jennings, 104 N.C. 774 , 10 S.E. 249, 1889 N.C. LEXIS 275 (1889).

An indictment charging a felonious assault with intent to kill as defined in this section, embraces as a lesser degree of the crime charged the offense of assault with a deadly weapon, and where the evidence is sufficient to sustain a verdict of the offense charged, defendant may not complain of a verdict of guilty of the lesser offense. State v. High, 215 N.C. 244 , 1 S.E.2d 563, 1939 N.C. LEXIS 242 (1939).

Secret assault is not a higher degree of felonious assault with a deadly weapon with the intent to kill or inflict serious bodily injury. State v. Hill, 287 N.C. 207 , 214 S.E.2d 67, 1975 N.C. LEXIS 1077 (1975).

In light of defendant’s conviction for murder based on lying in wait, the trial court erred in refusing to arrest judgment on his conviction for secret assault. The legislature did not intend to punish a defendant both for a secret assault and for a murder when the assault is the very act that underlies the conviction for first-degree murder by lying in wait. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

Secret Assault Underlying Conviction for Murder by Lying in Wait Not Punishable. —

To provide for additional punishment for the assault underlying a conviction for murder by lying in wait would serve little purpose other than to augment paperwork, trial time, and the potential for error in an already overburdened court system. The legislature, in enacting the secret assault and murder by lying in wait statutes, did not intend this result, and courts will, and the court accordingly arrest a judgment entered upon the secret assault conviction for a defendant convicted of murder by lying in wait. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

Purposes of Secret Assault and Murder by Lying in Wait Contrasted. —

The purpose of the secret assault statute is to provide for the protection of society in cases of assault from ambush which do not result in the death of the victim, while the purpose of the murder by lying in wait statute is to provide for such protection in cases of assault from ambush which do result in the death of the victim. State v. Joyner, 329 N.C. 211 , 404 S.E.2d 653, 1991 N.C. LEXIS 418 (1991).

Submission of Lesser Included Offense. —

Where there was positive evidence that the defendant committed every element of the offense under this section charged in the bill of indictment, and there was no conflicting evidence as to any element of the offense, the defendant’s contention that the jury might have convicted the defendant of the lesser included offense of assault with a deadly weapon if they had been given the opportunity did not support the submission of the lesser included offense to the jury. State v. McWhorter, 34 N.C. App. 462, 238 S.E.2d 639, 1977 N.C. App. LEXIS 1719 (1977), cert. denied, 294 N.C. 443 , 241 S.E.2d 844, 1978 N.C. LEXIS 1273 (1978).

Disjunctive Instruction on Multiple Offenses Improper. —

Where the trial court instructed the jury disjunctively, permitting consideration of two possible crimes for which defendant could be separately convicted and punished (i.e., secretly assaulting one victim and secretly assaulting another victim), and where the jury was permitted to consider these separate crimes in determining whether defendant was guilty of a single crime of secret assault under G.S. 14-31 , the jury’s verdict was fatally ambiguous because it could not be determined whether all the jurors found defendant assaulted victim, all found he assaulted other victim, all found both offenses, or some found one offense while some found the other offense; therefore, a new trial is necessary on the charge of secret assault. State v. Lyons, 102 N.C. App. 174, 401 S.E.2d 776, 1991 N.C. App. LEXIS 306 , cert. denied, 329 N.C. 791 , 408 S.E.2d 527, 1991 N.C. LEXIS 618 (1991), aff'd, 330 N.C. 298 , 412 S.E.2d 308, 1991 N.C. LEXIS 803 (1991).

When Defendant Entitled to Judgment of Nonsuit. —

If the State sought a conviction under this section and only proved that the assault was made in a secret manner, defendant would be entitled to a judgment of nonsuit. State v. Hill, 287 N.C. 207 , 214 S.E.2d 67, 1975 N.C. LEXIS 1077 (1975).

Sentencing. —

The General Assembly intended that consecutive sentences could be imposed against a defendant who contemporaneously violated both this section and G.S. 14-32(a). State v. Woodberry, 126 N.C. App. 78, 485 S.E.2d 59, 1997 N.C. App. LEXIS 367 (1997).

While this section and G.S. 14-32(a) contain three common elements, each contains specific additional elements not contained by the other; therefore, read together, the plain language of the statutes indicates that consecutive sentences are permissible. State v. Woodberry, 126 N.C. App. 78, 485 S.E.2d 59, 1997 N.C. App. LEXIS 367 (1997).

State’s prayer for judgment on defendant’s conviction for assault was not continued for an unreasonable period of time, because for that period of time judgment was active, and defendant failed to show that defendant suffered any actual prejudice from delay in sentencing. State v. Lea, 156 N.C. App. 178, 576 S.E.2d 131, 2003 N.C. App. LEXIS 82 (2003).

§ 14-32. Felonious assault with deadly weapon with intent to kill or inflicting serious injury; punishments.

  1. Any person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury shall be punished as a Class C felon.
  2. Any person who assaults another person with a deadly weapon and inflicts serious injury shall be punished as a Class E felon.
  3. Any person who assaults another person with a deadly weapon with intent to kill shall be punished as a Class E felon.

History. 1919, c. 101; C.S., s. 4214; 1931, c. 145, s. 30; 1969, c. 602, s. 2; 1971, c. 765, s. 1; c. 1093, s. 12; 1973, c. 229, ss. 1-3; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1138; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to an assault in this State resulting in injury in another state, see G.S. 15-132 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For note on the erosion of the retreat rule and self-defense, see 12 Wake Forest L. Rev. 1093 (1976).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note, “Farewell to the ‘Serious Bodily Injury’ Standard in Felonious Assault Cases: After State v. Everhardt a Defendant Can be Convicted if the Victim Sustains Serious Mental Injury,” see 69 N.C.L. Rev. 1517 (1991).

CASE NOTES

Analysis

I.General Consideration

Section Creates New Offense. —

By the enactment of this section the legislature intended to create a new offense of higher degree than the common-law crime of assault with intent to kill. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962).

Purpose. —

This section is designed for the protection of life or limb. State v. Cass, 55 N.C. App. 291, 285 S.E.2d 337, 1982 N.C. App. LEXIS 2192 (1982).

Construction With Other Provisions. —

The General Assembly intended that consecutive sentences could be imposed against a defendant who contemporaneously violated both subsection (a) of this section and G.S. 14-31 . Although both sections contain three common elements, each contains specific additional elements not contained by the other. State v. Woodberry, 126 N.C. App. 78, 485 S.E.2d 59, 1997 N.C. App. LEXIS 367 (1997).

Primary distinction between felonious assault under G.S. 14-32 and misdemeanor assault under G.S. 14-33 is that a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted, while if the evidence shows that only one of the two elements is present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor. State v. Lowe, 150 N.C. App. 682, 564 S.E.2d 313, 2002 N.C. App. LEXIS 651 (2002).

The felony described in this section is often referred to as felonious assault. State v. Lewis, 274 N.C. 438 , 164 S.E.2d 177, 1968 N.C. LEXIS 799 (1968).

The offense defined in subsection (b) is a lesser included offense of the offense defined in subsection (a). State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Cox, 11 N.C. App. 377, 181 S.E.2d 205, 1971 N.C. App. LEXIS 1529 (1971); State v. Thacker, 281 N.C. 447 , 189 S.E.2d 145, 1972 N.C. LEXIS 1085 (1972), disapproved, North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286, 1979 U.S. LEXIS 91 (1979); State v. Jennings, 16 N.C. App. 205, 192 S.E.2d 46, 1972 N.C. App. LEXIS 1678 , cert. denied, 282 N.C. 428 , 192 S.E.2d 838, 1972 N.C. LEXIS 990 (1972); State v. Turner, 21 N.C. App. 608, 205 S.E.2d 628, 1974 N.C. App. LEXIS 1884 , cert. denied, 285 N.C. 668 , 207 S.E.2d 751, 1974 N.C. LEXIS 1117 (1974).

Subsection (c) of this section creates another lesser offense of subsection (a), that of assault with a firearm with intent to kill. State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970).

Guilt of Lesser Degree of Offense. —

Where the defendants were tried for violating this section in making an assault with a deadly weapon with intent to kill, etc., the action would not be dismissed when the undisputed evidence tended to show the assault was made with a deadly weapon. State v. Hefner, 199 N.C. 778 , 155 S.E. 879, 1930 N.C. LEXIS 251 (1930).

Not a Lesser-Included Offense of Attempted First Degree Murder. —

Assault with a deadly weapon with intent to kill requires proof of an element not required for attempted first-degree murder, i.e., use of a deadly weapon, thus, it is not a lesser-included offense of attempted first-degree murder. State v. Cozart, 131 N.C. App. 199, 505 S.E.2d 906, 1998 N.C. App. LEXIS 1305 (1998), cert. denied, 651 S.E.2d 225, 2007 N.C. LEXIS 883 (N.C. 2007).

Separate sentences for attempted first degree murder and assault with a deadly weapon with intent to kill did not result in double jeopardy where each offense required proof of at least one element that the other did not. State v. Peoples, 141 N.C. App. 115, 539 S.E.2d 25, 2000 N.C. App. LEXIS 1290 (2000).

Conviction on Two Separate Counts Not Double Jeopardy. —

Defendant’s assault convictions under G.S. 14-32(a) and (b) did not violate double jeopardy because 1) the assaults were the result of separate thought processes as defendant began beating the victim with his fists and then turned away to grab a bat and began to use that bat to beat the victim; and 2) the acts were distinct in time as defendant moved toward the 12-year-old child before turning back to beat the victim. State v. Wilkes, 225 N.C. App. 233, 736 S.E.2d 582, 2013 N.C. App. LEXIS 53 (2013), aff'd, 367 N.C. 116 , 748 S.E.2d 146, 2013 N.C. LEXIS 990 (2013), cert. dismissed, 368 N.C. 251 , 771 S.E.2d 309, 2015 N.C. LEXIS 329 (2015).

Facts Not Showing Multiple Offenses. —

In a felonious assault case, the mere fact that some of the shots entered from the front and some entered from the back did not make two offenses. State v. Dilldine, 22 N.C. App. 229, 206 S.E.2d 364, 1974 N.C. App. LEXIS 2287 (1974).

The defendant’s second assault charge should have been dismissed where the defendant testified that the gun went off while he struggled with the victim/his former wife after having already once shot her and the prosecution asserted that the defendant shot her later after he had abducted her but had no evidence to establish this assertion because the victim fainted shortly after the struggle. State v. Brooks, 138 N.C. App. 185, 530 S.E.2d 849, 2000 N.C. App. LEXIS 601 (2000).

Trial court did not err in dismissing four of the five assault with a deadly weapon with intent to kill charges filed against defendant, as the evidence showed defendant’s firing of five bullets from a semi-automatic gun in rapid succession constituted one assault, not five assaults. State v. Maddox, 159 N.C. App. 127, 583 S.E.2d 601, 2003 N.C. App. LEXIS 1438 (2003).

Aiding and Abetting Through Failure to Defend Victim. —

A mother may be found guilty of assault on a theory of aiding and abetting solely on the basis that she was present when her child was assaulted but failed to take reasonable steps to prevent the assault. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Trial court properly allowed the jury to consider a verdict of guilty of assault with a deadly weapon inflicting serious injury, upon a theory of aiding and abetting, solely on the ground that defendant mother was present when her child was brutally beaten by third party but failed to take all steps reasonable to prevent the attack or otherwise protect the child from injury. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

In a prosecution against defendant mother for assault with a deadly weapon inflicting serious injury, upon a theory of aiding and abetting, on the ground that defendant was present when third party brutally beat her child but failed to take all steps reasonable to prevent the attack or otherwise protect the child, testimony tending to show that the third party had committed other attacks against her children in the presence of the defendant was competent as it tended to exhibit a chain of circumstances in respect to the matter on trial which were so connected with the offense charged as to throw light upon the identity of the child’s attacker and to make out the res gestae. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Aiding and Abetting Assault on Child Through Silence. —

In a prosecution of defendant mother for aiding and abetting another in assault on defendant’s one-year-old child, where the only evidence for the State tended to show that, during the assault, defendant did absolutely nothing, the totality of the circumstances warranted the inference by the jury that defendant knew her silent presence during the beating inflicted upon her son would be regarded by the principal as encouragement and support, particularly in light of testimony that defendant had witnessed prior beatings by the principal, indicating that defendant was aware of the severity of his treatment of her children; that defendant had never interfered in the past; that defendant had herself beaten her children in the principal’s presence; and that defendant lied and instructed her children to lie to conceal the principal’s complicity in the assault. State v. Walden, 53 N.C. App. 196, 280 S.E.2d 505, 1981 N.C. App. LEXIS 2578 (1981), rev'd, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Attempted Assault. —

Defendant’s prior conviction for attempted assault with a deadly weapon inflicting serious injury could support later charges for possession of a firearm by a convicted felon and attaining habitual felon status where the offense of attempted assault with a deadly weapon inflicting serious injury was recognized in North Carolina under the show-of-violence rule. State v. Floyd, 369 N.C. 329 , 794 S.E.2d 460, 2016 N.C. LEXIS 1130 (2016).

Admissibility of Evidence. —

See State v. Oxendine, 224 N.C. 825 , 32 S.E.2d 648, 1945 N.C. LEXIS 236 (1945).

Evidence was sufficient to support conviction of assault with a deadly weapon inflicting serious injury where testimony revealed defendant went into the room where the victims were, defendant later reemerged from the room wearing one victim’s jacket, the victim was undressed and lying in bed in an unlit bedroom, the victim was struck, was bleeding, and blacked out, and, as a result of the assault, the victim incurred a nasal fracture, sinus fracture, and closed head injury, and required surgery on her nose. State v. Yarrell, 172 N.C. App. 135, 616 S.E.2d 258, 2005 N.C. App. LEXIS 1428 (2005).

Conviction of assault with a deadly weapon inflicting serious injury was supported by sufficient evidence where testimony revealed that defendant hit the victim in the head, that the victim then fell to the ground, and that, as a result of the assault, the victim incurred a deep laceration over her left eye and required stitches, antibiotics, and a tetanus shot. State v. Yarrell, 172 N.C. App. 135, 616 S.E.2d 258, 2005 N.C. App. LEXIS 1428 (2005).

Evidence that defendant struck repeated blows to the victim’s head and face with defendant’s hands and fists, causing, inter alia, traumatic head injuries and extreme facial bruising and swelling, was sufficient to show that defendant used defendant’s hands and fists as deadly weapons and that the victim suffered serious injuries, thereby supporting defendant’s conviction for assault with deadly weapon inflicting serious injury. State v. Allen, 193 N.C. App. 375, 667 S.E.2d 295, 2008 N.C. App. LEXIS 1820 (2008).

Denial of motion to dismiss charge of assault with a deadly weapon inflicting serious injury was proper, where the evidence showed that defendant drove off with the victim holding on to the car door, thereby dragging the victim along. State v. Ryder, 196 N.C. App. 56, 674 S.E.2d 805, 2009 N.C. App. LEXIS 457 (2009).

Evidence of communicated threats was received with apparent approval in State v. Scott, 26 N.C. 409 (1844), and with explicit approval in State v. Turpin, 77 N.C. 473 , 24 Am. R. 455 (1877). It was denied in State v. Byrd, 121 N.C. 684 , 28 S.E. 353 (1897) and in State v. Skidmore, 87 N.C. 509 (1882), in an opinion which overlooked the two cases first cited. See 11 N.C.L. Rev. 20.

Evidence that defendant said nothing to prosecutrix at the time he shot her, but that two weeks before he shot her he told her he was going to kill her, was competent and properly admitted in evidence in a prosecution under this section. State v. Heard, 262 N.C. 599 , 138 S.E.2d 243, 1964 N.C. LEXIS 706 (1964).

Testimony Properly Admitted Absent Showing of Prejudice. —

In the appeal of a conviction for robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury, where defendant assigned as error the failure of the trial court to sustain three objections made by defendant during the testimony of the victim, in which the victim stated that she was not sure how good her husband’s hearing was on the side where he had been shot; that she could still see the defendant’s face when she closed her eyes; and that she had let the defendant take the money because he had a gun, the defendant may have been correct in his assertion that these answers were in places speculative or unresponsive, but neither the defendant nor the record showed that the errors were material or prejudicial, and absent such a showing defendant was not entitled to a new trial. State v. Billups, 301 N.C. 607 , 272 S.E.2d 842, 1981 N.C. LEXIS 1012 (1981).

A police officer was properly allowed to testify concerning the type of pistol used in assault as the officer’s testimony regarding the location of shell casings when a bullet was fired from two different weapons was based not upon any specialized expertise or training, but merely upon his own personal experience and observations in firing different kinds of weapons; defendant’s due process rights were not violated by the destruction of the shell casings as the police had no duty to preserve the casings when defendant did not file a discovery request for the casings. State v. Fisher, 171 N.C. App. 201, 614 S.E.2d 428, 2005 N.C. App. LEXIS 1214 (2005), cert. denied, 361 N.C. 223 , 642 S.E.2d 711, 2007 N.C. LEXIS 153 (2007).

Statement That Defendant Is Charged with “Equivalent of Attempted Murder”. —

In a prosecution under this section, where the court made the statement that defendant was charged with the “North Carolina equivalent of attempted murder” at the very beginning of defendant’s trial, which was not repeated in the court’s charge to the jury, and the statement was an apparent attempt to paraphrase a portion of the indictment, while it cannot be said that the trial court gave the jury a distorted view of the case through the use of the “stilted” language of the indictment, a distorted view was given through the use of an inaccurate and misleading paraphrase. “Intent to kill” and “attempted murder” do not mean the same thing. State v. Hall, 59 N.C. App. 567, 297 S.E.2d 614, 1982 N.C. App. LEXIS 3202 (1982).

Great Monetary Loss as Aggravating Factor Was Proper. —

Defendant was not entitled to a new sentencing hearing on his assault with a deadly weapon inflicting serious injury conviction where the victim’s medical bills after being shot in the amount of $29,837.29 were “excessive” and surpassed those normally incurred from such an assault; defendant stipulated to the medical bills as he did not object to the State’s recitation of the figure nor take exception to the amount of the medical expenses offered by the State in support of its argument for the existence of the non-statutory aggravating factor of great monetary loss. State v. Pender, 176 N.C. App. 688, 627 S.E.2d 343, 2006 N.C. App. LEXIS 582 (2006).

Sentencing. —

The trial court, in sentencing, cannot rely upon the aggravating factor of the defendant’s use of a deadly weapon when the defendant is convicted of an assault. State v. Barbour, 104 N.C. App. 793, 411 S.E.2d 411, 1991 N.C. App. LEXIS 1104 (1991).

Aggravating Factors Must Be Indicated at the Sentencing Hearing. —

It is error where the trial court did not make written findings nor indicate at the sentencing hearing what aggravating factor was being applied to the assault with a deadly weapon with intent to kill count. State v. Clark, 107 N.C. App. 184, 419 S.E.2d 188, 1992 N.C. App. LEXIS 663 (1992).

Aggravating Factor Required Additional Evidence. —

G.S. 15A-1340.16(d) was not violated because the prosecution was required to prove facts for the aggravated sentences that were in addition to the elements of defendant’s crimes of second degree murder and assault with a deadly weapon inflicting serious injury. State v. Borges, 183 N.C. App. 240, 644 S.E.2d 250, 2007 N.C. App. LEXIS 1037 (2007), cert. denied, 552 U.S. 1126, 128 S. Ct. 941, 169 L. Ed. 2d 776, 2008 U.S. LEXIS 472 (2008).

Ineffective Assistance of Counsel Not Shown. —

In a case in which defendant was convicted of violating G.S. 14-32(b) and G.S. 14-87 and he appealed, arguing that his counsel was ineffective: (1) in cross-examining a detective, (2) in failing to impeach a State’s witness with her prior convictions of assault, disorderly conduct or attempted robbery; and (3) in being unable to introduce defense exhibit 6, which was the victim’s medical record noting a polysubstance abuse history, due to counsel’s lack of preparation, even assuming arguendo that the performance of defendant’s trial counsel was deficient for the above reasons, defendant had not demonstrated that there was a reasonable probability that the result of the trial would have been different but for his trial counsel’s actions. Defendant was identified in a police photo line-up, and he admitted that he intended to rob the victim. State v. Wilson, 203 N.C. App. 110, 689 S.E.2d 917, 2010 N.C. App. LEXIS 505 (2010).

II.Other Crimes

Assault With Deadly Weapon As Lesser Included Offense. —

Assault with a deadly weapon under G.S. 14-33 is an essential element of the felony created and defined by this section, being an included “less degree of the same crime.” State v. Weaver, 264 N.C. 681 , 142 S.E.2d 633, 1965 N.C. LEXIS 1260 (1965); State v. Caldwell, 269 N.C. 521 , 153 S.E.2d 34, 1967 N.C. LEXIS 1099 (1967); State v. Lane, 1 N.C. App. 539, 162 S.E.2d 149, 1968 N.C. App. LEXIS 1125 (1968); State v. Burris, 3 N.C. App. 35, 164 S.E.2d 52, 1968 N.C. App. LEXIS 781 (1968); State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

Misdemeanor Assault Compared. —

The primary distinction between felonious assault under this section and misdemeanor assault under G.S. 14-33 is that a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted, while if the evidence shows that only one of the two elements was present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

Armed Robbery as Separate Offense. —

The crime of armed robbery defined in G.S. 14-87 includes an assault on the person with a deadly weapon. The crime of felonious assault defined in subsection (a) of this section is an assault with a deadly weapon which is made with intent to kill and which inflicts serious injury. These additional elements of the crime of felonious assault are not elements of the crime of armed robbery defined in G.S. 14-87 . State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971); State v. Stepney, 280 N.C. 306 , 185 S.E.2d 844, 1972 N.C. LEXIS 1250 (1972); State v. Alexander, 284 N.C. 87 , 199 S.E.2d 450, 1973 N.C. LEXIS 779 (1973), cert. denied, 415 U.S. 927, 94 S. Ct. 1434, 39 L. Ed. 2d 484, 1974 U.S. LEXIS 1292 (1974); State v. Teel, 24 N.C. App. 385, 210 S.E.2d 517, 1975 N.C. App. LEXIS 2387 (1975); State v. Wilson, 26 N.C. App. 188, 215 S.E.2d 167, 1975 N.C. App. LEXIS 2002 (1975); State v. Wheeler, 34 N.C. App. 243, 237 S.E.2d 874, 1977 N.C. App. LEXIS 1649 (1977), cert. denied, 294 N.C. 187 , 241 S.E.2d 522, 1978 N.C. LEXIS 1220 (1978).

Although Felonious Assault May Be Committed During Perpetration of Armed Robbery. —

The fact that a felonious assault is committed during the perpetration of armed robbery does not deprive the felonious assault of its character as a complete and separate felony. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971).

Secret assault is not a higher degree of felonious assault with a deadly weapon with the intent to kill or inflict serious bodily injury. State v. Hill, 287 N.C. 207 , 214 S.E.2d 67, 1975 N.C. LEXIS 1077 (1975).

Convictions of Armed Robbery and Felonious Assault Based on Separate Features of One Continuous Course of Conduct. —

When separate indictments for armed robbery and felonious assault based on separate features of one continuous course of conduct are tried together, and verdicts of guilty as charged are returned, these verdicts provide support for separate judgments. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971).

Discharging Firearm into Occupied Building Distinguished. —

Discharging a firearm into an occupied building and assault with a deadly weapon inflicting serious injury are entirely separate and distinct offenses. To prove the one, the State must show that defendant fired into an occupied building, an element which need not be shown to support the second charge. Likewise to prove the second charge, it must show the infliction of serious injury, which is not an element of the first charge. State v. Shook, 293 N.C. 315 , 237 S.E.2d 843, 1977 N.C. LEXIS 936 (1977).

Since assault with a deadly weapon and assault by pointing a gun each involve the element of assault on a person, these two criminal offenses contain an element not essential to discharging a firearm into an occupied building and are not, therefore, lesser included offenses of that offense. State v. Bland, 34 N.C. App. 384, 238 S.E.2d 199, 1977 N.C. App. LEXIS 1704 (1977), cert. denied, 294 N.C. 183 , 241 S.E.2d 518, 1978 N.C. LEXIS 1203 (1978).

Discharging a firearm into occupied property and assault with a deadly weapon with intent to kill inflicting serious injury are separate and distinct offenses which serve distinct purposes, and defendant was properly convicted of, and punished for, both offenses. State v. Morston, 336 N.C. 381 , 445 S.E.2d 1, 1994 N.C. LEXIS 311 (1994).

Asportation of the victim is not an inherent or inevitable feature of an assault; therefore, removal of a victim from the front porch of her home to a more secluded wooded area clearly facilitated the commission of the felony of assault, and thus a separate charge for kidnapping was proper. State v. Coffer, 54 N.C. App. 78, 282 S.E.2d 492, 1981 N.C. App. LEXIS 2790 (1981).

Trial court did not err by submitting to the jury both attempted first-degree murder and assault with a deadly weapon inflicting serious injury, and by imposing consecutive sentences for the offenses, because each offense contained at least one element not included in the other; therefore, defendants were not been subjected to double jeopardy. State v. Tirado, 358 N.C. 551 , 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

Defendant cannot be convicted of both assault with a deadly weapon inflicting serious injury and attempted murder upon the same victim, because they are mutually exclusive, and defendant who convicted of both was entitled to a new trial. State v. Yang, 174 N.C. App. 755, 622 S.E.2d 632, 2005 N.C. App. LEXIS 2623 (2005).

Conviction Under This Section and G.S. 14-30 . —

Elements of malice aforethought and intent to murder, maim or disfigure, necessary elements of G.S. 14-30 , are not elements of subsection (b) of this section. Additionally, use of a deadly weapon is required for a violation of subsection (b), but not for G.S. 14-30 ; therefore, defendant was properly convicted of and punished for the offenses of assault with a deadly weapon inflicting serious injury and malicious maiming. State v. Aytche, 98 N.C. App. 358, 391 S.E.2d 43, 1990 N.C. App. LEXIS 388 (1990).

Prosecution Under G.S. 14-34.2 and This Section Not Double Jeopardy. —

Prosecution of defendants under G.S. 14-34.2 for assault on a law-enforcement officer with a firearm and under this section for assault with a deadly weapon with intent to kill did not violate the prohibition against double jeopardy, nor did it require the State to elect prosecution under a single statute, though the facts underlying defendants’ indictment under each statute were the same, since each offense required proof of an element which did not exist in the other charge. State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, 1980 N.C. App. LEXIS 3231 (1980).

Where a defendant was charged and convicted for assault upon a law officer with a firearm while he was in the performance of his duties and also for assault on the same officer with a deadly weapon with intent to kill inflicting serious injuries, the defendant was not placed in double jeopardy, however, judgment was arrested in the case charging the lesser included offense of assault upon the officer with a firearm while he was in the performance of his duties because the constitutional guarantee against double jeopardy protects a defendant from multiple punishment for the same offense. State v. Byrd, 50 N.C. App. 736, 275 S.E.2d 522, 1981 N.C. App. LEXIS 2206 (1981).

Cumulative punishments for offenses arising from the same act did not violate double jeopardy, where the defendant was convicted for assault with a deadly weapon with intent to kill and assault with a deadly weapon on a law enforcement officer, as each offense required proof of an element the other did not and the legislative purposes underlying the offenses were distinct. State v. Coria, 131 N.C. App. 449, 508 S.E.2d 1, 1998 N.C. App. LEXIS 1383 (1998).

Where the facts underlying the jury’s guilty verdict for assault with a deadly weapon on a government official in violation of G.S. 14-34.2 were not the same facts underlying the jury’s verdict of guilty for assault with a deadly weapon in violation of G.S. 14-32 , and where the evidence showed that defendant completed the first assault on an officer by driving a truck over the officer’s leg just before the officer pulled defendant from the truck and then completed the second instance of assault independently of the first assault by reentering the vehicle and driving it toward the officer, defendant’s convictions on both charges did not violate double jeopardy; neither U.S. Const. amend. XIV nor N.C. Const. Art. I, § 19, forbade the prosecution and punishment of defendant for those two separate and distinct crimes. State v. Spellman, 167 N.C. App. 374, 605 S.E.2d 696, 2004 N.C. App. LEXIS 2380 (2004).

Trial court violated defendant’s right to be free of double jeopardy when it sentenced him for both assault with a deadly weapon inflicting serious injury under G.S. 14-32(b) and misdemeanor assault inflicting serious injury under G.S. 14-33(c)(1) based on an incident in which defendant punched his girlfriend into a wall and stabbed her multiple times in the arm and leg; because defendant’s convictions under G.S. 14-32(b) provided for greater punishment than G.S. 14-32.4 or G.S. 14-33(c), the trial court could not convict and sentence defendant under two statutes for the same conduct in each incident without violating the double jeopardy provisions of USCS Const. Amend. 5 and N. C. Const. Art. I, § 19. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863, 2005 N.C. App. LEXIS 2289 (2005).

Defendant’s argument that the assault with a deadly weapon inflicting serious injury charge he was convicted of was a lesser included offense of assault by a prisoner with a deadly weapon inflicting bodily injury, and thus, his consecutive sentences for those convictions violated the Double Jeopardy Clause failed because the offenses were distinct. State v. Smith, 267 N.C. App. 364, 832 S.E.2d 921, 2019 N.C. App. LEXIS 729 (2019).

while assault with a deadly weapon inflicting serious injury charge and assault by a prisoner with a deadly weapon inflicting bodily injury bear similarities, they are distinct for two reasons pertaining to the respective injuries required to prove the charges; not every bodily injury is serious, and the inverse is true as well, not every serious injury is a bodily injury, and thus, “serious injury” and “bodily injury” are not synonymous. State v. Smith, 267 N.C. App. 364, 832 S.E.2d 921, 2019 N.C. App. LEXIS 729 (2019).

Prosecution Under G.S. 14-32.4 and This Section Double Jeopardy. —

Defendant could not be convicted and sentenced for both assault with a deadly weapon with intent to kill inflicting serious injury, pursuant to G.S. 14-32(b), and assault inflicting serious bodily injury, G.S. 14-32.4 , for the same conduct without violating the double jeopardy provisions of the United States and North Carolina Constitutions. State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679, 2003 N.C. App. LEXIS 1418 (2003).

Trial court erred in entering judgment and conviction on the charge of assault by strangulation, when defendant was also convicted on the greater charge of assault with a deadly weapon with intent to kill inflicting serious injury, because in the absence of evidence that the assaults were in fact two separate actions — that is, in the absence of evidence of a distinct interruption in the assault — the evidence only supported a finding of a single assault, so that defendant could only have been convicted under the greater charge. State v. Prince, 271 N.C. App. 321, 843 S.E.2d 700, 2020 N.C. App. LEXIS 342 (2020), aff'd, 377 N.C. 198 , 856 S.E.2d 96, 2021- NCSC-40, 2021 N.C. LEXIS 323 (2021).

Prosecution Under G.S. 14-318.2 and Subsection (b) Not Double Jeopardy. —

Neither subsection (b) of this section not G.S. 14-318.2 proscribes a crime which is a lesser included offense of the other, and conviction or acquittal of one will not support a plea of former jeopardy against a charge for violation of the other. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Nor Is Prosecution Under G.S. 14-27.6 and This Section. —

In a criminal prosecution defendant was not subjected to double jeopardy where he was charged and convicted of assault with a deadly weapon with intent to kill inflicting serious injury and attempt to commit first-degree rape, though both crimes arose from the same series of events, since each offense charged included an element not common to the other offense. State v. Glenn, 51 N.C. App. 694, 277 S.E.2d 477, 1981 N.C. App. LEXIS 2301 (1981).

Second-Degree Sexual Offense Is a Separate Offense. —

Second-degree sexual offense and assault with a deadly weapon inflicting serious injury are separate and distinct offenses; each requires the proof of an element that the other does not, and neither is a lesser included offense of the other. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

Common Law Attempted Murder. —

Defendant’s counsel did not provide ineffective assistance by failing to move to dismiss a common law attempted murder charge against defendant, on the theory that common law attempted murder had been abrogated by G.S. 14-32(a), prohibiting assault with a deadly weapon with intent to kill inflicting serious injury; this statute did not abrogate common law attempted murder, as attempted murder could occur through many circumstances, requiring only (1) intent to kill and (2) an overt act which was more than mere preparation and committed with malice, premeditation, and deliberation. State v. Ramirez, 156 N.C. App. 249, 576 S.E.2d 714, 2003 N.C. App. LEXIS 117 , cert. denied, 540 U.S. 991, 124 S. Ct. 487, 157 L. Ed. 2d 388, 2003 U.S. LEXIS 8150 (2003).

Felony Murder. —

Where defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury under this section, which is a felony involving use of a deadly weapon, the crime was thus within the purview of the felony-murder statute. State v. Terry, 337 N.C. 615 , 447 S.E.2d 720, 1994 N.C. LEXIS 493 (1994).

Conspiracy. —

Substantial evidence existed that defendant conspired to assault a victim with a deadly weapon with intent to kill inflicting serious injury where, inter alia, defendant’s parent and defendant’s friend set out to fight another man and anyone who may have been with the other man, defendant’s parent charged toward the victim and loudly asked if the victims wanted a war, defendant and codefendants were heard to respond that they would give them a war, defendant then exited the truck and joined the fight, and where defendant briefly broke away from the fight, stating that defendant would finish the victim off, retrieved a wooden dowel rod from the truck, and returned to strike the victim in the head. State v. Sanders, 208 N.C. App. 142, 701 S.E.2d 380, 2010 N.C. App. LEXIS 2074 (2010).

Conviction on Two Separate Counts Not Double Jeopardy. —

Conviction and sentence of defendant for assault with a deadly weapon with intent to kill inflicting serious injury, and assault with intent to commit rape, did not subject him to double jeopardy, since the elements for the two crimes are not the same. State v. Herring, 50 N.C. App. 298, 273 S.E.2d 29, 1981 N.C. App. LEXIS 2105 (1981).

Where defendant dragged his wife by the hair into the house and then beat her with his gun, defendant’s convictions of first-degree kidnapping in violation of G.S. 14-39(a) and assault with a deadly weapon inflicting serious injury in violation of G.S. 14-32(b) did not violate double jeopardy under N.C. Const. Art. I, § 19; the restraint and removal of the wife, which was the act of dragging her into the house, were separate from the commission of the assault, which was the act of beating the wife with the gun once the kidnapping had been completed. State v. Romero, 164 N.C. App. 169, 595 S.E.2d 208, 2004 N.C. App. LEXIS 729 (2004).

Election Between Charges. —

The trial court did not err in denying defendant’s pretrial motion to require the State to elect between the charges of felonious assault with a deadly weapon upon a law enforcement officer in the performance of his duties and felonious assault with a deadly weapon with intent to kill inflicting serious injury, since a defendant may be charged with more than one offense based on a given course of conduct, and even when an election ultimately will be necessary, the State is not required to elect prior to the introduction of evidence. State v. Ward, 301 N.C. 469 , 272 S.E.2d 84, 1980 N.C. LEXIS 1189 (1980).

Sentencing. —

While this section and G.S. 14-31 contain three common elements, each contains specific additional elements not contained by the other; therefore, read together the plain language of the statutes indicates that consecutive sentences are permissible. State v. Woodberry, 126 N.C. App. 78, 485 S.E.2d 59, 1997 N.C. App. LEXIS 367 (1997).

The General Assembly intended that consecutive sentences could be imposed against a defendant who contemporaneously violated both G.S. 14-31 and subsection (a). State v. Woodberry, 126 N.C. App. 78, 485 S.E.2d 59, 1997 N.C. App. LEXIS 367 (1997).

III.Elements of Offense

In order for a conviction of crime under the provisions of this section as it stood before the 1969 amendment, there had to be a charge and evidence thereon of five essential elements: an assault, the use of a deadly weapon, the intent to kill, infliction of serious injury, death not resulting, and while an assault did not necessarily include a battery, where serious injury was inflicted a battery was necessarily implied. State v. Hefner, 199 N.C. 778 , 155 S.E. 879, 1930 N.C. LEXIS 251 (1930); State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962); State v. Meadows, 272 N.C. 327 , 158 S.E.2d 638, 1968 N.C. LEXIS 659 (1968); State v. Marshall, 5 N.C. App. 476, 168 S.E.2d 487, 1969 N.C. App. LEXIS 1368 (1969); State v. Whitted, 14 N.C. App. 62, 187 S.E.2d 391, 1972 N.C. App. LEXIS 2036 (1972).

To warrant the conviction of an accused of a felonious assault and battery under this section, as it stood before the 1969 amendment, on the theory that he participated in the offense as a principal in the first degree, the State had to produce evidence sufficient to establish beyond a reasonable doubt that he did these four things: (1) committed an assault and battery upon another; (2) committed the assault and battery with a deadly weapon; (3) committed the assault and battery with intent to kill the victim of his violence; and (4) thus inflict on the person of his victim serious injury not resulting in death. State v. Birchfield, 235 N.C. 410 , 70 S.E.2d 5, 1952 N.C. LEXIS 400 (1952).

The essential elements of the crime of assault with a deadly weapon with intent to kill inflicting serious injury are (1) an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in death. State v. Cain, 79 N.C. App. 35, 338 S.E.2d 898, cert. denied, 316 N.C. 380 , 342 S.E.2d 899 (1986). In accord with third paragraph in main volume. See State v. Reid, 335 N.C. 647 , 440 S.E.2d 776, 1994 N.C. LEXIS 112 (1994).

Elements of a charge under subsection (b) are (1) as assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death. State v. Aytche, 98 N.C. App. 358, 391 S.E.2d 43, 1990 N.C. App. LEXIS 388 (1990); State v. Woods, 126 N.C. App. 581, 486 S.E.2d 255, 1997 N.C. App. LEXIS 601 (1997).

Intent Is Not Prescribed Element Under Subsection (b). —

Intent is not a prescribed element of assault with a deadly weapon inflicting serious injury under subsection (b) of this section. State v. Currie, 19 N.C. App. 17, 198 S.E.2d 28, 1973 N.C. App. LEXIS 1555 (1973).

But Is Prescribed Under Subsection (c). —

Intent is a prescribed element of assault with firearm with intent to kill under subsection (c) of this section. State v. Currie, 19 N.C. App. 17, 198 S.E.2d 28, 1973 N.C. App. LEXIS 1555 (1973).

Physical injury is certainly something more than emotional distress. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Secret manner and malice need not be shown at all in a prosecution under this section. State v. Hill, 287 N.C. 207 , 214 S.E.2d 67, 1975 N.C. LEXIS 1077 (1975).

Victim Need Not Have Been Placed in Fear. —

It is not necessary that the victim be placed in fear in order to sustain a conviction for assault. All that is necessary to sustain a conviction for assault is evidence of an overt act showing an intentional offer by force and violence to do injury to another sufficient to put a person of reasonable firmness in apprehension of immediate bodily harm. State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181, 1982 N.C. App. LEXIS 3164 (1982).

Defendant Must Be Present at Scene of Assault. —

Where the evidence showed that defendant procured, counseled, commanded or encouraged others to commit an attempted armed robbery and that he was absent from the scene when the others committed a felonious assault in their attempt to carry out the armed robbery, the felonious assault charge against defendant should not have been submitted to the jury and the trial court should have arrested the judgment on that charge since, in order to be guilty of a felonious assault, a defendant must be present at the scene of the assault either actually or constructively. State v. Allen, 34 N.C. App. 260, 237 S.E.2d 869, 1977 N.C. App. LEXIS 1651 , cert. denied, 293 N.C. 741 , 241 S.E.2d 516, 1977 N.C. LEXIS 1028 (1977).

Illustrative Case. —

Trial court did not err by not dismissing charges of assault with a deadly weapon with intent to kill filed against defendant, as the evidence presented showed defendant intended to kill a man when defendant fired a semi-automatic weapon five times at the man and the man only avoided being killed or seriously injured by jumping behind a tree. State v. Maddox, 159 N.C. App. 127, 583 S.E.2d 601, 2003 N.C. App. LEXIS 1438 (2003).

Jury could determine deliberation and premeditation beyond a reasonable doubt to support defendant’s convictions for attempted murder and assault with a deadly weapon with intent to kill or inflicting serious injury as: (1) defendant entered the victim’s house without the victim’s permission; (2) a fight resulted when defendant broke the victim’s television, and defendant pulled a knife on the victim; (3) defendant’s girlfriend testified that ill-will had developed between defendant and the victim; (4) defendant left his house with a gun in his truck; and (5) after shooting the victim in the shoulder yelled out, “I got one now and I got one more to go.” State v. Watkins, 181 N.C. App. 502, 640 S.E.2d 409, 2007 N.C. App. LEXIS 360 (2007).

IV.Indictment

Necessity of. —

A charge of assault with a deadly weapon with intent to kill, resulting in serious injury, is a charge of a felony, under this section, and defendant may not be put to answer thereon but by indictment. State v. Clegg, 214 N.C. 675 , 200 S.E. 371, 1939 N.C. LEXIS 406 (1939).

Sufficiency of Indictment. —

It is sufficient for indictments or warrants seeking to charge a crime in which one of the elements is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly that the weapon used was a “deadly weapon” or to allege such facts as would necessarily demonstrate the deadly character of the weapon. State v. Palmer, 293 N.C. 633 , 239 S.E.2d 406, 1977 N.C. LEXIS 1012 (1977).

An indictment which follows substantially the language of this section as to its essential elements meets the requirements of law. State v. Randolph, 228 N.C. 228 , 45 S.E.2d 132, 1947 N.C. LEXIS 598 (1947); State v. Wiggs, 269 N.C. 507 , 153 S.E.2d 84, 1967 N.C. LEXIS 1097 (1967); State v. Lane, 1 N.C. App. 539, 162 S.E.2d 149, 1968 N.C. App. LEXIS 1125 (1968).

In an indictment charging an assault with intent to kill “and murder” the words “and murder” were surplusage and placed no additional burden on the State. State v. Plemmons, 230 N.C. 56 , 52 S.E.2d 10, 1949 N.C. LEXIS 569 (1949).

“A certain knife” was a sufficient description of the weapon in an indictment for assault with a deadly weapon with intent to kill. State v. Randolph, 228 N.C. 228 , 45 S.E.2d 132, 1947 N.C. LEXIS 598 (1947); State v. Wiggs, 269 N.C. 507 , 153 S.E.2d 84, 1967 N.C. LEXIS 1097 (1967).

Indictments which named two and one-half ton truck as the weapon used by defendant in committing assault and expressly alleged that it was a “deadly weapon” were sufficient to support the verdicts of guilty of felonious assault with a deadly weapon and the judgments based thereon. State v. Hinson, 85 N.C. App. 558, 355 S.E.2d 232, 1987 N.C. App. LEXIS 2630 (1987).

Injury Need Not Be Described in Indictment. —

In an indictment, under this section, it is not necessary to describe the injury further than in the words of the statute. State v. Gregory, 223 N.C. 415 , 27 S.E.2d 140, 1943 N.C. LEXIS 290 (1943).

Effect of Omitting Averment of Serious Injury. —

An indictment charging assault with intent to kill, without averment of the infliction of serious injury, charged a misdemeanor under this section as it stood prior to the 1969 amendment. State v. Floyd, 241 N.C. 298 , 84 S.E.2d 915, 1954 N.C. LEXIS 590 (1954).

An indictment which does not incorporate the word “feloniously” or charge that the offense is a felony cannot support a conviction of an offense greater than a misdemeanor. State v. Price, 265 N.C. 703 , 144 S.E.2d 865, 1965 N.C. LEXIS 1083 (1965).

The allegation in a warrant that defendant assaulted his wife “by threatening to kill her” fell short of charging that he acted with the specific intent to kill required to make the offense a felony under this section; the offense charged was a misdemeanor under G.S. 14-33 . State v. Harris, 14 N.C. App. 268, 188 S.E.2d 1, 1972 N.C. App. LEXIS 2102 (1972).

Indictment Held Sufficient. —

An indictment charging that defendant assaulted a named person with intent to kill and did inflict serious and permanent bodily injuries not resulting in death by setting his victim afire, was sufficient to charge an assault where serious injury was inflicted. State v. Price, 265 N.C. 703 , 144 S.E.2d 865, 1965 N.C. LEXIS 1083 (1965).

While the indictment for one of the assault with a deadly weapon inflicting serious injury charges did not include the word “assault,” it was sufficient as it correctly listed the offense as “AWDW SERIOUS INJURY” and referenced the correct statute, and substantially following the language of the statute. State v. Hill, 262 N.C. App. 113, 821 S.E.2d 631, 2018 N.C. App. LEXIS 1035 (2018).

Offenses Not Included Under Indictment for Assault with Firearm with Intent to Kill. —

An indictment for assault with a firearm with intent to kill would not support a verdict of guilty of assault with a deadly weapon with intent to kill inflicting serious injury and did not support the verdict of guilty of assault with a deadly weapon inflicting serious injury. State v. Bryant, 19 N.C. App. 676, 199 S.E.2d 744, 1973 N.C. App. LEXIS 1737 (1973).

Variance Between Indictment and Evidence at Trial. —

Trial court erred by denying defendant’s motion to dismiss an assault charge where there was a fatal variance between the indictment and the evidence presented at trial regarding the type of deadly weapon used in the assault. State v. Skinner, 162 N.C. App. 434, 590 S.E.2d 876, 2004 N.C. App. LEXIS 177 (2004).

V.Deadly Weapon

What Is a Deadly Weapon. —

Any instrument which is likely to produce death or great bodily harm, under the circumstances of its use, is properly denominated a deadly weapon. State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Whitaker, 29 N.C. App. 602, 225 S.E.2d 129, 1976 N.C. App. LEXIS 2578 (1976); State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

A deadly weapon is not one which must kill but one which under the circumstances of its use is likely to cause death or great bodily harm. State v. Strickland, 290 N.C. 169 , 225 S.E.2d 531, 1976 N.C. LEXIS 1049 (1976); State v. Palmer, 293 N.C. 633 , 239 S.E.2d 406, 1977 N.C. LEXIS 1012 (1977).

Defendant assaulted the victim by hitting her vehicle with his vehicle, and according to eyewitness reports and the lack of skid marks to indicate an attempt to stop his vehicle, defendant was driving his vehicle in an erratic and reckless manner; thus, defendant’s vehicle may be considered a deadly weapon, and his culpable negligence was established when defendant proceeded to operate a vehicle while under the influence of impairing substances. State v. Bucklew, 2021-NCCOA-659, 867 S.E.2d 362, 2021- NCCOA-659, 2021 N.C. App. LEXIS 689 (N.C. Ct. App. 2021).

May Depend upon Manner of Use. —

The deadly character of a weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself. State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Palmer, 293 N.C. 633 , 239 S.E.2d 406, 1977 N.C. LEXIS 1012 (1977).

And May Be Question of Law or Fact. —

Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly is one of law, and the court must take the responsibility of so declaring. But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury. State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Whitaker, 29 N.C. App. 602, 225 S.E.2d 129, 1976 N.C. App. LEXIS 2578 (1976); State v. Palmer, 293 N.C. 633 , 239 S.E.2d 406, 1977 N.C. LEXIS 1012 (1977); State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

If there is a conflict in the evidence regarding either the nature of the weapon or the manner of its use, with some of the evidence tending to show that the weapon used or as used would not likely produce death or great bodily harm and other evidence tending to show the contrary, the jury must resolve the conflict. State v. Palmer, 293 N.C. 633 , 239 S.E.2d 406, 1977 N.C. LEXIS 1012 (1977).

The trial judge correctly submitted to the jury, under proper instructions, the questions whether the bottle involved was a deadly weapon and whether serious injury was inflicted where a lone woman, attacked by five males, was held down by defendant while an accomplice rammed a bottle into her rectum with such force as to cause excessive bleeding, dilation of the rectum, and the infliction of multiple cuts, some deep and long, about the rectum. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

Insufficient Evidence to Support Charge of Assault With Deadly Weapon. —

Trial court erred in denying defendant’s motion to dismiss the charge of assault with a deadly weapon inflicting serious bodily injury because there was insufficient evidence to determine defendant’s size and strength compared to that of the victim; mere observation by the jury of the victim and defendant’s strength and size alone was not sufficient to support the deadly weapon element, as a result of which the State failed to prove the deadly weapon element of the offense. State v. Lawson, 173 N.C. App. 270, 619 S.E.2d 410, 2005 N.C. App. LEXIS 2036 (2005).

The deadly character of a weapon may be inferred by the jury from the manner of its use and the injury inflicted, and evidence of slashes with a knife across the upper arm and lower back along the belt line, producing cuts requiring 16 stitches to close, was sufficient for the jury to infer that the knife was a deadly weapon. State v. Randolph, 228 N.C. 228 , 45 S.E.2d 132, 1947 N.C. LEXIS 598 (1947).

Weapon Need Not Be Introduced as Evidence. —

The introduction into evidence of the weapon used is not requisite to the admission of testimony as to the manner of its use, and the injuries inflicted, in establishing the character of the weapon as deadly. State v. Randolph, 228 N.C. 228 , 45 S.E.2d 132, 1947 N.C. LEXIS 598 (1947).

A pistol or a gun is a deadly weapon. State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, 1976 N.C. App. LEXIS 2364 , cert. denied, 289 N.C. 728 , 224 S.E.2d 675, 1976 N.C. LEXIS 1385 (1976).

An unexplained misfiring of a loaded pistol does not change its deadly character. State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, 1976 N.C. App. LEXIS 2364 , cert. denied, 289 N.C. 728 , 224 S.E.2d 675, 1976 N.C. LEXIS 1385 (1976).

Knife. —

Under the case law of this State, a knife with a three-inch blade constitutes a deadly weapon per se when used as a weapon in an assault. State v. Cox, 11 N.C. App. 377, 181 S.E.2d 205, 1971 N.C. App. LEXIS 1529 (1971).

Trial court did not err in denying defendant’s motion to dismiss the charge of assault with a deadly weapon inflicting serious injury, a violation of G.S. 14-32(b), because although defendant claimed the State presented no substantive evidence that the knife was a dangerous or deadly weapon, which was an essential element of assault with a deadly weapon inflicting serious injury under G.S. 14-32(b), the State’s evidence included the documents from the domestic violence hearing which were admitted as substantive evidence and tended to show that defendant stabbed his girlfriend five times with a knife causing wounds still visible some eight weeks after the assault. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863, 2005 N.C. App. LEXIS 2289 (2005).

Evidence was sufficient to support a finding that defendant used a “deadly weapon” during his assault on the victim despite the fact that the State did not introduce the knife, where a witness testified that defendant had a knife and the victim testified that he was stabbed or cut eight or nine times. State v. Walker, 204 N.C. App. 431, 694 S.E.2d 484, 2010 N.C. App. LEXIS 1006 (2010).

Fire as Deadly Weapon. —

Where the State’s evidence tended to show that victim of assault was five years old and asleep at the time defendant set fire to house, this evidence was sufficient to justify the trial court in permitting the jury to find that fire was used as a deadly weapon, and to permit defendant’s conviction for assault with a deadly weapon inflicting serious injury. State v. Riddick, 315 N.C. 749 , 340 S.E.2d 55, 1986 N.C. LEXIS 1918 (1986).

Metal walking cane is a weapon clearly capable of inflicting a lethal wound when used as a club. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

A baseball bat should be denominated a deadly weapon if viciously used. State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970).

Plastic Bag. —

Given proper surrounding circumstances, a plastic bag is a deadly weapon. State v. Strickland, 290 N.C. 169 , 225 S.E.2d 531, 1976 N.C. LEXIS 1049 (1976).

A defendant’s fists could have been deadly weapons given the manner in which they were used and the relative size and condition of the parties. This section classifies assaults with deadly weapons either with intent to kill or inflicting serious injury as felonies. State v. Grumbles, 104 N.C. App. 766, 411 S.E.2d 407, 1991 N.C. App. LEXIS 1109 (1991).

After considering the great disparity between defendant’s size of six feet and five inches, and the victim’s size, four feet and 11 inches, the jury found that defendant’s hands were deadly weapons. State v. Brunson, 180 N.C. App. 188, 636 S.E.2d 202, 2006 N.C. App. LEXIS 2240 (2006), aff'd, 362 N.C. 81 , 653 S.E.2d 144, 2007 N.C. LEXIS 1220 (2007).

Evidence Sufficient to Go to Jury. —

Denial of defendants’ motions to dismiss was proper, where the evidence was sufficient to submit to the jury the question of whether second defendant’s fists or the tree limbs, used to beat the victim, were of such character to constitute a deadly weapon. State v. Wallace, 197 N.C. App. 339, 676 S.E.2d 922, 2009 N.C. App. LEXIS 711 (2009).

Substantial evidence existed to convict defendant of felony assault with a deadly weapon inflicting serious injuries because: (1) defendant weighed 175 pounds and the victim weighed 110 pounds; and (2) the victim had a shoe print on her back, handprint bruises on her arms, thighs, and buttocks, and had handprints on her neck, which were consistent with a choke hold. The jury determined that defendant’s hands and feet constituted deadly weapons under G.S. 14-32(b). State v. Harris, 189 N.C. App. 49, 657 S.E.2d 701, 2008 N.C. App. LEXIS 431 (2008).

Use of Deadly Weapon May Not Be Considered in Aggravation. —

Since use of a deadly weapon is an element of the crime of felonious assault, it may not also be considered as a factor in aggravation. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

The trial court, in sentencing, cannot rely upon the aggravating factor of the defendant’s use of a deadly weapon when the defendant is convicted of an assault under this section. State v. Braswell, 67 N.C. App. 609, 313 S.E.2d 216, 1984 N.C. App. LEXIS 3098 (1984).

Evidence of Premeditation and Deliberation Not Required. —

Defendant’s convictions for attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury did not violate his right to be free of double jeopardy; in order to obtain a conviction for attempted first-murder, the State had to prove premeditation and deliberation, whereas it did not have to prove those elements to obtain a conviction for assault with a deadly weapon, which was a different offense requiring both proof of the use of a deadly weapon and proof of serious injury. State v. Bethea, 173 N.C. App. 43, 617 S.E.2d 687, 2005 N.C. App. LEXIS 1907 (2005).

VI.Intent to Kill

An intent to kill is a matter for the State to prove, and is ordinarily shown by proof of facts from which an intent to kill may be reasonably inferred. State v. Thacker, 281 N.C. 447 , 189 S.E.2d 145, 1972 N.C. LEXIS 1085 (1972), disapproved, North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286, 1979 U.S. LEXIS 91 (1979).

No Presumption of Felonious Intent. —

The admission or proof of an assault with a deadly weapon, resulting in serious injury, but not in death, cannot be said, as a matter of law, to establish a presumption of felonious intent, or intent to kill. State v. Ferguson, 261 N.C. 558 , 135 S.E.2d 626, 1964 N.C. LEXIS 538 (1964).

A person might intentionally and without justification or excuse assault another with a deadly weapon and inflict upon him serious injury not resulting in death, but such an assault would not establish a presumption of felonious intent, or the intent to kill. Such intent must be found by the jury as a fact from the evidence. State v. Ferguson, 261 N.C. 558 , 135 S.E.2d 626, 1964 N.C. LEXIS 538 (1964).

Intent to Kill May Be Inferred from Circumstances. —

An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances. State v. Ferguson, 261 N.C. 558 , 135 S.E.2d 626, 1964 N.C. LEXIS 538 (1964); State v. Marshall, 5 N.C. App. 476, 168 S.E.2d 487, 1969 N.C. App. LEXIS 1368 (1969); State v. Thacker, 281 N.C. 447 , 189 S.E.2d 145, 1972 N.C. LEXIS 1085 (1972), disapproved, North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286, 1979 U.S. LEXIS 91 (1979); State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, 1976 N.C. App. LEXIS 2364 , cert. denied, 289 N.C. 728 , 224 S.E.2d 675, 1976 N.C. LEXIS 1385 (1976); State v. Ransom, 41 N.C. App. 583, 255 S.E.2d 237, 1979 N.C. App. LEXIS 2680 (1979); State v. White, 307 N.C. 42 , 296 S.E.2d 267, 1982 N.C. LEXIS 1592 (1982); State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181, 1982 N.C. App. LEXIS 3164 (1982); State v. James, 321 N.C. 676 , 365 S.E.2d 579, 1988 N.C. LEXIS 226 (1988).

An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence; that is, by proving facts from which the fact sought to be proven may be reasonably inferred. State v. Ferguson, 261 N.C. 558 , 135 S.E.2d 626, 1964 N.C. LEXIS 538 (1964); State v. Jones, 18 N.C. App. 531, 197 S.E.2d 268, 1973 N.C. App. LEXIS 1929 , cert. denied, 283 N.C. 756 , 198 S.E.2d 726, 1973 N.C. LEXIS 1085 (1973); State v. Parks, 290 N.C. 748 , 228 S.E.2d 248, 1976 N.C. LEXIS 1180 (1976); State v. Ransom, 41 N.C. App. 583, 255 S.E.2d 237, 1979 N.C. App. LEXIS 2680 (1979).

In a case involving an assault with a deadly weapon inflicting serious injury with intent to kill, a motion to dismiss based on insufficient evidence was properly denied because the jury could have inferred an intent to kill due to the victim’s multiple stab wounds with a knife. State v. Nicholson, 169 N.C. App. 390, 610 S.E.2d 433, 2005 N.C. App. LEXIS 601 (2005), cert. denied, 2006 N.C. App. LEXIS 2222 (N.C. Ct. App. Nov. 7, 2006).

Trial court did not err in refusing to eliminate the intent to kill element of defendant’s assault with a deadly weapon with intent to kill inflicting serious injury charge under G.S. 14-32 as: (1) defendant and an accomplice had discussed intentionally forcing motorists off the highway in order to rob them; (2) defendant or the accomplice then deliberately threw a very large rock or concrete chunk through the driver’s side windshield of a driver’s car as it was approaching at approximately 55 or 60 miles per hour; and (3) it was easily foreseeable that such deliberate action could result in death, either from the impact of the rock on the driver or from the driver’s losing control of the vehicle and becoming involved in a deadly automobile accident. State v. Liggons, 194 N.C. App. 734, 670 S.E.2d 333, 2009 N.C. App. LEXIS 1 (2009).

The State adequately established intent, malice, premeditation and deliberation where the defendant approached the victim several hours after the two had been involved in an altercation, got out of the car, pointed a gun at him, shot at the victim, first missing and then hitting him in the leg, and then continued to approach him with an angry look on his face, only retreating at the urging of his aunt. State v. Peoples, 141 N.C. App. 115, 539 S.E.2d 25, 2000 N.C. App. LEXIS 1290 (2000).

Explanation of Transferred Intent Did Not Shift Burden. —

In trial on charges of assault with a deadly weapon with intent to kill, no presumption of any kind arose where the trial court merely fulfilled its duty by explaining the well-established rule of substantive law known as the doctrine of transferred intent, as it applied to the assault charged. Therefore, no unconstitutional burden shifting occurred. State v. Locklear, 331 N.C. 239 , 415 S.E.2d 726, 1992 N.C. LEXIS 199 (1992).

Transferred Intent Sufficient. —

The requisite mental state for assault with a deadly weapon with intent to kill inflicting serious injury is the intent to kill. Thus, where, the evidence tended to show that defendant possessed the intent to shoot and kill detective, under the doctrine of transferred intent, this intent sufficed as the intent element for the felony of assault upon detective’s life with a deadly weapon with intent to kill inflicting serious injury. State v. Morston, 336 N.C. 381 , 445 S.E.2d 1, 1994 N.C. LEXIS 311 (1994).

When defendant was charged with two counts of assault with a deadly weapon with intent to kill inflicting serious injury, in violation of G.S. 14-32(a), for shooting at a police officer and inadvertently striking a bystander, the trial court properly refused to dismiss the intent to kill element with respect to the assault against the bystander, because defendant’s intent to kill the police officer could properly be applied to the assault of the bystander. State v. Ramirez, 156 N.C. App. 249, 576 S.E.2d 714, 2003 N.C. App. LEXIS 117 , cert. denied, 540 U.S. 991, 124 S. Ct. 487, 157 L. Ed. 2d 388, 2003 U.S. LEXIS 8150 (2003).

Proof of an assault with a deadly weapon inflicting serious injury not resulting in death does not, as a matter of law, establish a presumption of intent to kill. Such intent must be found by the jury as a fact from the evidence. State v. Thacker, 281 N.C. 447 , 189 S.E.2d 145, 1972 N.C. LEXIS 1085 (1972), disapproved, North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286, 1979 U.S. LEXIS 91 (1979); State v. Turner, 21 N.C. App. 608, 205 S.E.2d 628, 1974 N.C. App. LEXIS 1884 , cert. denied, 285 N.C. 668 , 207 S.E.2d 751, 1974 N.C. LEXIS 1117 (1974); State v. Ransom, 41 N.C. App. 583, 255 S.E.2d 237, 1979 N.C. App. LEXIS 2680 (1979); State v. White, 307 N.C. 42 , 296 S.E.2d 267, 1982 N.C. LEXIS 1592 (1982).

Natural Results of Deliberate Act. —

A person who deliberately fired a pistol into the face of his victim at point-blank range has to be held to intend the normal and natural results of his deliberate act. The fact that the victim’s life was spared could be cause for a salute to medical science, but it hardly changed the intent apparently present when defendant pulled the trigger. State v. Jones, 18 N.C. App. 531, 197 S.E.2d 268, 1973 N.C. App. LEXIS 1929 , cert. denied, 283 N.C. 756 , 198 S.E.2d 726, 1973 N.C. LEXIS 1085 (1973).

Evidence of Other Offenses as Proof of Mental State or Intent. —

When a specific mental state is an essential element of the crime charged, evidence of commission of another offense is admissible to establish requisite mental state or intent. The evidence of a threat with a knife two days earlier and a slap two weeks prior to the incident tended to show design or intent on the part of the defendant. State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181, 1982 N.C. App. LEXIS 3164 (1982).

Whether defendant was so intoxicated as to prevent his forming the specific intent, required by this section, to rob and assault the victim, was a question of fact to be determined by the jury. State v. Robertson, 138 N.C. App. 506, 531 S.E.2d 490, 2000 N.C. App. LEXIS 642 (2000), cert. denied, 560 S.E.2d 357, 2002 N.C. LEXIS 132 (N.C. 2002).

Trial court did not err in refusing to instruct the jury on misdemeanor assault inflicting serious injury under G.S. 14-33(c)(1) as a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury under G.S. 14-32 as the instrument used to assault a driver was a rock which, when thrown at the driver’s side windshield of the car being driven at about 55 or 60 miles per hour was large enough to shatter the windshield, bend the steering wheel, and fracture the driver’s skull; based on the size of the rock and the manner in which it was used, the rock could only have been a deadly weapon. State v. Liggons, 194 N.C. App. 734, 670 S.E.2d 333, 2009 N.C. App. LEXIS 1 (2009).

Evidence Held Sufficient. —

In a prosecution for assault with a deadly weapon with intent to kill, an altercation, the shooting and resulting death of decedent soon after defendant pointed the pistol at another’s chest and pulled the trigger, and other circumstances, were sufficient evidence of intent to kill. State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, 1976 N.C. App. LEXIS 2364 , cert. denied, 289 N.C. 728 , 224 S.E.2d 675, 1976 N.C. LEXIS 1385 (1976).

Evidence that defendant attacked the victim, placed her in his trunk and kept her there unconscious, seriously injured and bleeding for four hours, in addition to the use of a deadly weapon and the severity of the victim’s injuries, was sufficient to show the element of an intent to kill in the assault charge. State v. Scott, 161 N.C. App. 104, 587 S.E.2d 485, 2003 N.C. App. LEXIS 1999 (2003).

In a case in which defendant was convicted of two counts of assault with a deadly weapon with intent to kill inflicting serious injury, the State presented sufficient evidence that defendant had the specific intent to kill his victims; the number of stab wounds and the manner in which the stabbings took place were all relevant factors for the jury to consider. State v. Pointer, 181 N.C. App. 93, 638 S.E.2d 909, 2007 N.C. App. LEXIS 93 (2007).

There was substantial evidence that defendant unlawfully entered a home with the intent to commit felonious assault under G.S. 14-32(c) for purposes of a burglary charge, even though the same evidence would also support an intent to murder theory as: (1) defendant and three conspirators kicked down the front door of a victim’s house, wearing ski masks and carrying loaded guns, (2) they terrorized and assaulted the occupants, (3) co-defendant testified that they entered the home intending to kill at least one person, and (4) they abandoned their plan upon discovering that they had entered the wrong house. State v. Jordan, 186 N.C. App. 576, 651 S.E.2d 917, 2007 N.C. App. LEXIS 2270 (2007).

There was sufficient evidence of intent to support defendant’s assault with a deadly weapon inflicting serious injury conviction as: (1) there was evidence that defendant had consumed 9 to 12 beers in a two-hour timeframe; (2) defendant’s blood alcohol content was well-above the threshold for driving while impaired; (3) defendant got into a truck, ran over a sign, and continued driving; (4) defendant eventually ran off the road and crashed into the victims’ truck; and (5) a violation of G.S. 20-138.1 constituted culpable negligence as a matter of law. State v. Davis, 197 N.C. App. 738, 678 S.E.2d 385, 2009 N.C. App. LEXIS 1080 (2009), aff'd in part and rev'd in part, 364 N.C. 297 , 698 S.E.2d 65, 2010 N.C. LEXIS 585 (2010).

Defendant’s motions to dismiss the assault with a deadly weapon with intent to kill inflicting serious injury charge under G.S. 14-32(a) was properly denied as there was sufficient evidence that defendant had the intent to kill because he repeatedly hit the victim over the head with a baseball bat until she lost consciousness. State v. Wilkes, 225 N.C. App. 233, 736 S.E.2d 582, 2013 N.C. App. LEXIS 53 (2013), aff'd, 367 N.C. 116 , 748 S.E.2d 146, 2013 N.C. LEXIS 990 (2013), cert. dismissed, 368 N.C. 251 , 771 S.E.2d 309, 2015 N.C. LEXIS 329 (2015).

Defendant’s motion to dismiss, based on a failure to show an intent to kill the officer, was properly denied as the fact that defendant fired a shot at the officer supported an inference of an intent to kill. State v. Stewart, 231 N.C. App. 134, 750 S.E.2d 875, 2013 N.C. App. LEXIS 1234 (2013), writ denied, 371 N.C. 458 , 814 S.E.2d 109, 2018 N.C. LEXIS 477 (2018), writ denied, 374 N.C. 268 , 838 S.E.2d 463, 2020 N.C. LEXIS 214 (2020).

VII.Serious Injury

Comparison to Language in G.S. 14-27.2 . —

The language of G.S. 14-27.2 , “serious personal injury,” and the legislative context in which it arose, differs substantially from the language of this section, “serious injury.” State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

The term “inflicts serious injury” means physical or bodily injury resulting from an assault with a deadly weapon with intent to kill. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962); State v. Ferguson, 261 N.C. 558 , 135 S.E.2d 626, 1964 N.C. LEXIS 538 (1964); State v. Marshall, 5 N.C. App. 476, 168 S.E.2d 487, 1969 N.C. App. LEXIS 1368 (1969); State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Whitted, 14 N.C. App. 62, 187 S.E.2d 391, 1972 N.C. App. LEXIS 2036 (1972); State v. Williams, 29 N.C. App. 24, 222 S.E.2d 720, 1976 N.C. App. LEXIS 2369 , cert. denied, 289 N.C. 728 , 224 S.E.2d 676, 1976 N.C. LEXIS 1387 (1976); State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

The term “serious injury,” as employed in subsection (a) of this section, means physical or bodily injury resulting from an assault with a deadly weapon. State v. James, 321 N.C. 676 , 365 S.E.2d 579, 1988 N.C. LEXIS 226 (1988).

The term “inflicts serious injury,” as used under this section, means physical or bodily injury resulting from an assault with a deadly weapon. The injury must be serious, but it must fall short of causing death. State v. Hensley, 90 N.C. App. 245, 368 S.E.2d 208, 1988 N.C. App. LEXIS 446 (1988).

And Includes Serious Mental Injury. —

Serious injury, within the meaning and intent of that term as used in this section, includes serious mental injury caused by an assault with a deadly weapon. State v. Everhardt, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Because “serious injury” could include serious mental injury, the victim’s testimony regarding the victim’s mental condition, including the victim’s dreams, after the alleged incident was admissible to support an element of the crime of felony aggravated assault on a handicapped person under G.S. 14-32.1 . State v. Lofton, 193 N.C. App. 364, 667 S.E.2d 317, 2008 N.C. App. LEXIS 1815 (2008).

Whether the assault is calculated to create a breach of the peace that would outrage the sensibilities of the community does not adequately or correctly describe the infliction of serious injury contemplated by this section. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962).

Facts of Particular Case Are Determinative. —

Whether serious injury has been inflicted must be determined according to the particular facts of each case. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962); State v. Ferguson, 261 N.C. 558 , 135 S.E.2d 626, 1964 N.C. LEXIS 538 (1964); State v. Marshall, 5 N.C. App. 476, 168 S.E.2d 487, 1969 N.C. App. LEXIS 1368 (1969); State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Whitted, 14 N.C. App. 62, 187 S.E.2d 391, 1972 N.C. App. LEXIS 2036 (1972); State v. Pearson, 27 N.C. App. 157, 218 S.E.2d 192, 1975 N.C. App. LEXIS 1777 , cert. denied, 288 N.C. 733 , 220 S.E.2d 352, 1975 N.C. LEXIS 1054 (1975); State v. Williams, 29 N.C. App. 24, 222 S.E.2d 720, 1976 N.C. App. LEXIS 2369 , cert. denied, 289 N.C. 728 , 224 S.E.2d 676, 1976 N.C. LEXIS 1387 (1976); State v. James, 321 N.C. 676 , 365 S.E.2d 579, 1988 N.C. LEXIS 226 (1988).

Whether serious injury has been inflicted must be determined according to the particular facts of each case and is a question the jury must answer under proper instruction. State v. Marshall, 5 N.C. App. 476, 168 S.E.2d 487, 1969 N.C. App. LEXIS 1368 (1969); State v. Whitted, 14 N.C. App. 62, 187 S.E.2d 391, 1972 N.C. App. LEXIS 2036 (1972); State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978); State v. Rotenberry, 54 N.C. App. 504, 284 S.E.2d 197, 1981 N.C. App. LEXIS 2913 (1981), cert. denied, 305 N.C. 306 , 290 S.E.2d 705 (1982); State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181, 1982 N.C. App. LEXIS 3164 (1982); State v. Hensley, 90 N.C. App. 245, 368 S.E.2d 208, 1988 N.C. App. LEXIS 446 (1988).

Factors the courts consider in determining if an injury is serious include pain, loss of blood, hospitalization and time lost from work. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

Some factors the courts may consider in determining whether an injury is serious include, but are not limited to, pain and suffering, loss of blood, hospitalization and time lost from work. State v. Hensley, 90 N.C. App. 245, 368 S.E.2d 208, 1988 N.C. App. LEXIS 446 (1988).

Evidence that the victim was hospitalized is not necessary for proof of serious injury. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978); State v. Rotenberry, 54 N.C. App. 504, 284 S.E.2d 197, 1981 N.C. App. LEXIS 2913 (1981), cert. denied, 305 N.C. 306 , 290 S.E.2d 705 (1982); State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181, 1982 N.C. App. LEXIS 3164 (1982).

Serious physical injury may be proven even when it is not evident immediately upon the impact of the assault, as physical injury may later manifest itself as the result of psychological trauma. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

A “whiplash” injury may or may not be a serious injury, depending upon its severity and the painful effect it may have on the injured victim. State v. Ferguson, 261 N.C. 558 , 135 S.E.2d 626, 1964 N.C. LEXIS 538 (1964).

Injury Must Fall Short of Causing Death. —

The injury must be serious but it must fall short of causing death. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962); State v. Ferguson, 261 N.C. 558 , 135 S.E.2d 626, 1964 N.C. LEXIS 538 (1964); State v. Meadows, 272 N.C. 327 , 158 S.E.2d 638, 1968 N.C. LEXIS 659 (1968); State v. Marshall, 5 N.C. App. 476, 168 S.E.2d 487, 1969 N.C. App. LEXIS 1368 (1969); State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Whitted, 14 N.C. App. 62, 187 S.E.2d 391, 1972 N.C. App. LEXIS 2036 (1972); State v. Williams, 29 N.C. App. 24, 222 S.E.2d 720, 1976 N.C. App. LEXIS 2369 , cert. denied, 289 N.C. 728 , 224 S.E.2d 676, 1976 N.C. LEXIS 1387 (1976); State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

Under this section, if the State proves to the satisfaction of the jury beyond a reasonable doubt that assaultive conduct resulted in death, it has disproven the “serious injury” element, because “serious injury” necessarily must be injury that falls short of death. Thus, if a victim dies as the result of an assault, a defendant cannot be convicted of assault with a deadly weapon inflicting serious injury for that particular assaultive conduct. State v. Ledford, 315 N.C. 599 , 340 S.E.2d 309, 1986 N.C. LEXIS 1896 (1986).

“Serious injury” under subsection (b) of this section is the same as under subsection (a) of this section. State v. Parker, 7 N.C. App. 191, 171 S.E.2d 665, 1970 N.C. App. LEXIS 1657 (1970); State v. Williams, 29 N.C. App. 24, 222 S.E.2d 720, 1976 N.C. App. LEXIS 2369 , cert. denied, 289 N.C. 728 , 224 S.E.2d 676, 1976 N.C. LEXIS 1387 (1976).

“Serious injury” as employed in subsection (b) of this section, means physical or bodily injury resulting from an assault with a deadly weapon. State v. Musselwhite, 59 N.C. App. 477, 297 S.E.2d 181, 1982 N.C. App. LEXIS 3164 (1982).

Although the indictment did not track the exact language of this section by using the term “serious injury”, when read as a whole, it sufficiently stated facts which support every element of the crime charged and apprised defendant of the specific charge against him. State v. Crisp, 126 N.C. App. 30, 483 S.E.2d 462, 1997 N.C. App. LEXIS 315 (1997).

Evidence of Infliction of Serious Injury. —

A pistol wound in the neck, close to the spinal cord, resulting in unconsciousness, with the bullet lodging in the neck, was sufficient evidence of serious injury, within the meaning of the statute, to submit the question of serious injury to the jury. State v. Marshall, 5 N.C. App. 476, 168 S.E.2d 487, 1969 N.C. App. LEXIS 1368 (1969).

Where it was uncontradicted that a deadly weapon, a shotgun, was used to inflict physical injuries upon victim; that he suffered multiple wounds to both legs and knees, the left hip, arm and hand; that he was hospitalized for three days and three nights; and that he suffered great pain and continued to suffer pain as a result of some of the pellets remaining in his body, this evidence clearly showed that defendant inflicted serious injuries upon the victim. Evidence that there was not any significant open wound, bone destruction, tendon or ligament damage, and that the victim remained “neurovascularly intact,” did not contradict or negate the evidence of serious injury, but only pointed out that the injuries could have been much more serious than the evidence showed. State v. Hensley, 90 N.C. App. 245, 368 S.E.2d 208, 1988 N.C. App. LEXIS 446 (1988).

Reasonable minds could not differ as to the seriousness of victim’s physical injuries where a bullet ripped through her ear mere inches from her skull, she required emergency room treatment for a gunshot wound, powder burns and lacerations on her hand and head, and her testimony indicated that her physical injuries might have some permanency since she was still suffering from daily ringing in her ear at the time of trial. State v. Hedgepeth, 330 N.C. 38 , 409 S.E.2d 309, 1991 N.C. LEXIS 663 (1991).

Evidence that the victim was hospitalized is not necessary for proof of serious injury. State v. Hedgepeth, 330 N.C. 38 , 409 S.E.2d 309, 1991 N.C. LEXIS 663 (1991).

Testimony by the victim that defendant beat him in the head with the butt of defendant’s gun, knocking him to the floor, then stood over him and attempted to throw a compressor at his head which struck his shoulder, and that as a result of the compressor striking his shoulder, he was badly bruised, was substantial evidence that defendant inflicted serious injury upon the victim when he struck him with the air conditioning compressor. State v. Ramseur, 338 N.C. 502 , 450 S.E.2d 467, 1994 N.C. LEXIS 710 (1994).

Conviction upheld where victim suffered injuries including broken wrist, requiring steel plate and screws in his hand, chewed fingers, and gash to the head requiring stitches. State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563, 2001 N.C. App. LEXIS 546 (2001).

State presented sufficient evidence from which a jury could have found that a victim sustained serious injury as a result of defendant’s assault, contrary to G.S. 14-32(b), where the victim was treated at a hospital for multiple lacerations to his forearm, small stab wounds to his leg, a deep laceration to his thumb, bruising to his back, and a puncture wound to his right orbital rim that caused a fracture of the bone; further, because of the wounds to his eye and thumb, the victim was referred to eye and hand specialists. State v. Morgan, 164 N.C. App. 298, 595 S.E.2d 804, 2004 N.C. App. LEXIS 819 (2004).

Jury found that the victim’s injuries, including swollen, black eyes; bruises on the victim’s neck, arms, back, and inner thighs; and redness on her vagina, and testimony that the victim suffered pain all over as a result of the beating sustained from defendant was sufficient to support a finding that the victim’s injuries were serious. State v. Brunson, 180 N.C. App. 188, 636 S.E.2d 202, 2006 N.C. App. LEXIS 2240 (2006), aff'd, 362 N.C. 81 , 653 S.E.2d 144, 2007 N.C. LEXIS 1220 (2007).

Evidence showing that the victim went to the hospital, took pain medication for two weeks, walked with a limp for one to two weeks, and did not fully heal for approximately one month after being shot in the knee was sufficient to show that the victim sustained a serious injury as required to support defendant’s conviction for assault with a deadly weapon inflicting serious injury. State v. Tice, 191 N.C. App. 506, 664 S.E.2d 368, 2008 N.C. App. LEXIS 1507 (2008).

Denial of defendants’ motions to dismiss was proper, where the testimony of the emergency room doctor that the victim suffered a chest fracture and numerous bruises and contusions, and the testimony of the victim and the victim’s wife that the victim’s injuries hurt and the victim was having a lot of pain in the victim’s chest tended to show that first defendant’s alleged assault resulted in “serious injury.” State v. Wallace, 197 N.C. App. 339, 676 S.E.2d 922, 2009 N.C. App. LEXIS 711 (2009).

Evidence was sufficient to support a finding that the victim suffered serious injury where the evidence showed that defendant bled a lot, suffered cuts to his lip, back, and arm, received a chest tube to drain blood, was on a ventilator as a result of a puncture wounds to his lung, and has visible scars at trial, two years later. State v. Walker, 204 N.C. App. 431, 694 S.E.2d 484, 2010 N.C. App. LEXIS 1006 (2010).

Question of Fact for Jury. —

When an injury may or may not be serious depending upon its severity and the painful effect it may have on the victim, the issue is for the jury to determine upon the particular facts of each case. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Anorexia nervosa is by definition both physical and mental, and a jury could properly find it to be a serious injury. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Depression. —

Where depression involved psychomotor retardation which has to do with the physical manifestations of the depressed mental condition, such a condition may be found by a jury to constitute serious injury. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Insomnia is a physical as well as a mental phenomenon, and a jury could properly find it to be a serious injury. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

The pain of severe, chronic headaches could be a serious physical injury, and whether a headache results from a blow to the head or a blow to the psyche is legally irrelevant since either headache may feel the same physically to the victim. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Serious Injury Not Shown. —

While “a wrecked nervous system” is often considerably more painful and enduring than “wounded or lacerated limbs,” under the circumstances of this case, serious injury could not be proven by showing serious mental injury. State v. Everhardt, 96 N.C. App. 1, 384 S.E.2d 562, 1989 N.C. App. LEXIS 929 (1989), aff'd, 326 N.C. 777 , 392 S.E.2d 391, 1990 N.C. LEXIS 298 (1990).

Handgun was a deadly weapon per se; however, a conviction for assault with a deadly weapon inflicting serious injury, G.S. 14-32(b), was reversed where the trial court’s erroneous admission of the victim’s prior statement was the only direct evidence that the victim was struck with the weapon. State v. McCree, 160 N.C. App. 200, 584 S.E.2d 861, 2003 N.C. App. LEXIS 1727 (2003).

VIII.Self-Defense

Applicability. —

The law of self-defense in cases of homicide applies also in cases of assault with intent to kill, and an unsuccessful attempt to kill cannot be justified unless the homicide would have been excusable if death had ensued. It follows that where an accused has inflicted wounds upon another with intent to kill such other, he may be absolved from criminal liability for so doing upon the principle of self-defense only in case he was in actual or apparent danger of death or great bodily harm at the hands of such other. State v. Anderson, 230 N.C. 54 , 51 S.E.2d 895, 1949 N.C. LEXIS 551 (1949); State v. Barnette, 8 N.C. App. 198, 174 S.E.2d 82, 1970 N.C. App. LEXIS 1516 (1970); State v. Hall, 31 N.C. App. 34, 228 S.E.2d 637, 1976 N.C. App. LEXIS 1898 (1976).

Use of Deadly Force Must Be Reasonably Necessary. —

A defendant could assault a person with intent to kill only if such force was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm. Likewise, a defendant could be absolved from criminal liability for the assault with intent to kill only if he acted in self-defense when he was in actual or apparent danger of suffering death or great bodily harm. State v. Barnette, 8 N.C. App. 198, 174 S.E.2d 82, 1970 N.C. App. LEXIS 1516 (1970); State v. Dial, 38 N.C. App. 529, 248 S.E.2d 366, 1978 N.C. App. LEXIS 2232 (1978).

To repel a felonious assault, a defendant may employ deadly force in his defense, but only if it reasonably appears necessary to protect himself against death or great bodily harm. State v. Hunter, 315 N.C. 371 , 338 S.E.2d 99, 1986 N.C. LEXIS 1871 (1986).

Reasonableness of Apprehension of Death or Bodily Harm. —

In determining the reasonableness of defendant’s apprehension of death or great bodily harm the reasonableness of the apprehension must be determined by the jury on the basis of all facts and circumstances as they appeared to defendant at the time of the shooting. State v. Tann, 57 N.C. App. 527, 291 S.E.2d 824, 1982 N.C. App. LEXIS 2670 (1982).

Among the circumstances to be considered by the jury are the size, age and strength of defendant’s assailant in relation to that of defendant; the fierceness or persistence of the assault upon defendant; whether the assailant had or appeared to have a weapon in his possession; and the reputation of the assailant for danger and violence. State v. Tann, 57 N.C. App. 527, 291 S.E.2d 824, 1982 N.C. App. LEXIS 2670 (1982).

Although a defendant need not submit in meekness to indignities or violence to his person merely because the affront does not threaten death or great bodily harm or offensive physical contact. The use of deadly force to prevent harm other than death or great bodily harm is therefore excessive as a matter of law. State v. Hunter, 315 N.C. 371 , 338 S.E.2d 99, 1986 N.C. LEXIS 1871 (1986).

Defendant’s evidence that victim had physically abused defendant in the past and had threatened to beat defendant approximately 30 minutes before the shooting was not sufficient to show that at the time of the shooting defendant was in actual or apparent danger of death or great bodily harm; therefore, absent any additional evidence to support defendant’s argument, the court did not err in refusing to submit a self-defense instruction. State v. Kinney, 92 N.C. App. 671, 375 S.E.2d 692, 1989 N.C. App. LEXIS 44 (1989).

Voluntarily Entering Into a Fight. —

If a person voluntarily, that is, aggressively and willingly, without legal provocation or excuse, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight and withdraws from it and gives notice to his adversary that he has done so. State v. Plemmons, 29 N.C. App. 159, 223 S.E.2d 549, 1976 N.C. App. LEXIS 2401 (1976).

Where defendant entered into affray voluntarily and without lawful excuse or provocation, he was considered the aggressor and was therefore not entitled to a charge on self-defense. State v. Hall, 89 N.C. App. 491, 366 S.E.2d 527, 1988 N.C. App. LEXIS 269 (1988).

Defense of Home or Grounds. —

In certain cases, a defendant may justify an intentional assault on the ground that it was made in an effort to defend his home from attack or to evict trespassers. State v. Dial, 38 N.C. App. 529, 248 S.E.2d 366, 1978 N.C. App. LEXIS 2232 (1978).

The right of self defense is available only to a person who is without fault. State v. Plemmons, 29 N.C. App. 159, 223 S.E.2d 549, 1976 N.C. App. LEXIS 2401 (1976).

Burden of Proof. —

In prosecutions for felonious assault and for assault with a deadly weapon, it is not incumbent on a defendant to satisfy the jury he acted in self defense. On the contrary, the burden of proof rests on the State throughout the trial to establish beyond a reasonable doubt that defendant unlawfully assaulted the alleged victim. State v. Fletcher, 268 N.C. 140 , 150 S.E.2d 54, 1966 N.C. LEXIS 1143 (1966); State v. Smith, 28 N.C. App. 314, 220 S.E.2d 858, 1976 N.C. App. LEXIS 2673 (1976); State v. Turner, 29 N.C. App. 33, 222 S.E.2d 745, 1976 N.C. App. LEXIS 2373 (1976).

Evidence of Dangerous Character of Victim. —

Where the defendant pleads and offers evidence of self-defense, evidence of the character of the victim as a violent and dangerous fighting man is admissible if such character was known to the defendant, and further, such evidence is relevant on the question of the defendant’s reasonable apprehension of death or bodily harm in his confrontation with the victim, and it may include specific acts of violence by the deceased. When such evidence is introduced by the defendant, the court, even in the absence of a request, should instruct the jury as to the bearing which this evidence might have on defendant’s reasonable apprehension of death or great bodily harm from the attack to which his evidence pointed. State v. Powell, 51 N.C. App. 224, 275 S.E.2d 528, 1981 N.C. App. LEXIS 2220 (1981).

In assault cases when defendant pleads and offers evidence of self defense, he may then offer evidence tending to show the bad general reputation of his assailant as a violent and dangerous fighting man. State v. Tann, 57 N.C. App. 527, 291 S.E.2d 824, 1982 N.C. App. LEXIS 2670 (1982).

Instruction as to Defendant’s Knowledge of Victim’s Violent and Dangerous Character. —

When evidence tending to show the dangerous and violent character of a victim is introduced, the court, even in the absence of a request, should instruct the jury as to the bearing defendant’s knowledge thereof might have on his reasonable apprehension of death or great bodily injury. State v. Tann, 57 N.C. App. 527, 291 S.E.2d 824, 1982 N.C. App. LEXIS 2670 (1982).

Jury Question on Amount of Force Used. —

In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury where defendant contended that the victim grabbed defendant by the hair and t-shirt to drag him into a cell for the purpose of a homosexual act, and that defendant then swung at the victim with a razor to get the victim to remove his hands, a jury question was raised as to whether defendant reasonably felt he was in imminent danger of a homosexual assault and whether he used more force than was reasonably necessary to repel the assault. State v. Molko, 50 N.C. App. 551, 274 S.E.2d 271, 1981 N.C. App. LEXIS 2144 (1981).

Failure to instruct the jury with reference to defendant’s right of self-defense in respect to repelling a nonfelonious assault was prejudicial error. State v. Fletcher, 268 N.C. 140 , 150 S.E.2d 54, 1966 N.C. LEXIS 1143 (1966).

Evidence Allowed. —

In trial for assault with a deadly weapon in which defendant claimed self-defense, the trial court did not err in admitting evidence that prior to wounding the victim, defendant placed a gun to the head of a fourteen year old boy and questioned him regarding stolen cocaine. State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322, 1991 N.C. App. LEXIS 1015 (1991).

IX.Instructions to Jury

Defendant is entitled to have the different permissible verdicts arising on the evidence presented to the jury under proper instructions. State v. Jennings, 16 N.C. App. 205, 192 S.E.2d 46, 1972 N.C. App. LEXIS 1678 , cert. denied, 282 N.C. 428 , 192 S.E.2d 838, 1972 N.C. LEXIS 990 (1972).

When the lesser included offense of assault with a firearm resulting in serious bodily injury is supported by some evidence, a defendant is entitled to have the different permissible views arising on the evidence presented to the jury under proper instructions. State v. Jones, 18 N.C. App. 531, 197 S.E.2d 268, 1973 N.C. App. LEXIS 1929 , cert. denied, 283 N.C. 756 , 198 S.E.2d 726, 1973 N.C. LEXIS 1085 (1973).

Assault with a deadly weapon, which was a misdemeanor under former G.S. 14-33(b)(1), was a lesser included offense of the felonies described in this section. However, the necessity for instructing the jury as to an included crime of lesser degree than that charged arose when and only when there was evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence was the determinative factor. State v. Williams, 31 N.C. App. 111, 228 S.E.2d 668, 1976 N.C. App. LEXIS 1916 , cert. denied, 291 N.C. 450 , 230 S.E.2d 767, 1976 N.C. LEXIS 1015 (1976).

Submission of Lesser Offense Only Where All Evidence Shows Felonious Assault. —

In a prosecution for two offenses of assault with a deadly weapon with intent to kill inflicting serious injury, wherein all the evidence showed that a deadly weapon was used in both assaults and that serious injury was inflicted on both victims, the trial court erred (1) in failing to submit defendant’s guilt or innocence of assault with a deadly weapon inflicting serious injury, and (2) in submitting the misdemeanors of assault inflicting serious injury and assault with a deadly weapon. State v. Thacker, 281 N.C. 447 , 189 S.E.2d 145, 1972 N.C. LEXIS 1085 (1972), disapproved, North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286, 1979 U.S. LEXIS 91 (1979); State v. Turner, 21 N.C. App. 608, 205 S.E.2d 628, 1974 N.C. App. LEXIS 1884 , cert. denied, 285 N.C. 668 , 207 S.E.2d 751, 1974 N.C. LEXIS 1117 (1974).

Failure to Submit Lesser Offense Held Error. —

Where defendant stated, “I was trying to frighten her so she would move back so I could get in my car and leave,” and this statement was bolstered by his earlier testimony that he fired a warning shot while at the rear of the house just prior to his shot which wounded the victim, the trial court should have instructed the jury on the lesser included offense of assault with a deadly weapon inflicting serious injury. State v. Harrington, 95 N.C. App. 187, 381 S.E.2d 808, 1989 N.C. App. LEXIS 679 (1989).

Because of an evidence conflict about who actually cut the victim, the court should have granted defendant’s request for an instruction on the lesser included charge of simple assault, including an instruction that simple assault is not an option if the jury determines that defendant was the person who cut the victim. State v. Andrews, 122 N.C. App. 274, 468 S.E.2d 597, 1996 N.C. App. LEXIS 247 (1996).

Under circumstances in which a trial court correctly found that the issue of whether a two-by-four board used to beat the victim was a deadly weapon was for the jury to determine, the trial court should have instructed the jury on the lesser included offense of assault inflicting serious injury, and the failure to do so constituted reversible error. State v. Tillery, 186 N.C. App. 447, 651 S.E.2d 291, 2007 N.C. App. LEXIS 2204 (2007).

Failure to Submit Lesser Offense Held Not Error. —

Where all the evidence presented showed a shooting with a deadly weapon with an intent to kill and none of the evidence showed the lack of such intent, it was not error for the court to fail to submit to the jury the lesser offense described in subsection (b). State v. Jennings, 16 N.C. App. 205, 192 S.E.2d 46, 1972 N.C. App. LEXIS 1678 , cert. denied, 282 N.C. 428 , 192 S.E.2d 838, 1972 N.C. LEXIS 990 (1972); State v. Turner, 21 N.C. App. 608, 205 S.E.2d 628, 1974 N.C. App. LEXIS 1884 , cert. denied, 285 N.C. 668 , 207 S.E.2d 751, 1974 N.C. LEXIS 1117 (1974).

Where the uncontradicted evidence was that defendant shot a police officer at close range in the face, this evidence did not justify submission of the issue of guilt of a lesser included offense. State v. Jones, 18 N.C. App. 531, 197 S.E.2d 268, 1973 N.C. App. LEXIS 1929 , cert. denied, 283 N.C. 756 , 198 S.E.2d 726, 1973 N.C. LEXIS 1085 (1973).

Defendants in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury were not entitled to an instruction on the lesser included offense of assault with a deadly weapon where the evidence showed that the victim had been struck in the back of the head with a stick about two feet long; that he was hospitalized for nine days; that a neurosurgeon had to operate in order to repair the injuries to his skull; that fragments of bone had to be peeled back; and that his head was still indented from the injuries. State v. Davis, 33 N.C. App. 262, 234 S.E.2d 762, 1977 N.C. App. LEXIS 2175 (1977).

The failure of the trial court to submit to the jury the lesser offense of simple assault was not error where the evidence showed that the defendant struck the victim in the head with a blackjack, since a blackjack is a deadly weapon per se. State v. Daniels, 38 N.C. App. 382, 247 S.E.2d 770, 1978 N.C. App. LEXIS 2191 (1978).

In trial in which defendant was found guilty of assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err by not instructing the jury on the lesser included offenses of (1) assault with a deadly weapon with intent to kill, and (2) assault with a deadly weapon, where there was no contradiction in the evidence of the infliction of serious injury to victim and likewise, contradiction in the evidence that a deadly weapon was used. State v. Cain, 79 N.C. App. 35, 338 S.E.2d 898, 1986 N.C. App. LEXIS 2019 , writ denied, 316 N.C. 380 , 342 S.E.2d 899, 1986 N.C. LEXIS 2124 (1986).

Where, in prosecution for assault with a deadly weapon inflicting serious injury, evidence indicated that defendant repeatedly beat the victim with a metal walking cane and that she suffered very serious injuries as a consequence, but there was no evidence which indicated that she was not beaten with the cane or that she was not seriously injured by it, even though some of the incidental details of the crime were inconsistent, the court’s failure to charge on simple assault was not error, plain or otherwise. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

In trial for first-degree burglary, felonious breaking and entering, assault with a deadly weapon with intent to kill inflicting serious injury, and assault with a deadly weapon with intent to kill, where the only evidence which would negate the intent to kill was the defendant’s denial that he would have killed victim, the trial court’s refusal to submit a jury instruction on the lesser offenses of misdemeanor assault with a deadly weapon and misdemeanor breaking and entering was not error. State v. Owen, 111 N.C. App. 300, 432 S.E.2d 378, 1993 N.C. App. LEXIS 783 (1993).

Where all the evidence tended to show a shooting with a deadly weapon with the intent to kill, the trial court did not err in refusing to submit the lesser offense of assault with a deadly weapon inflicting serious injury. State v. Oliver, 334 N.C. 513 , 434 S.E.2d 202, 1993 N.C. LEXIS 391 (1993).

Court was not required to submit the lesser-included offense of assault with a deadly weapon to the jury where the court determined, based on the evidence, that the victim’s injury was “serious”. State v. Crisp, 126 N.C. App. 30, 483 S.E.2d 462, 1997 N.C. App. LEXIS 315 (1997).

Instructions on assault with a deadly weapon and assault inflicting serious injury were not warranted where the defendant shot one victim three times at close range with a large caliber pistol and within seconds fired fatal shots into another, and where one of the victim’s bones in an arm was broken in several places with the bullet exiting near the elbow, and another bullet passed through his right side and shoulder, with a third remaining lodged near his shoulder. State v. Washington, 142 N.C. App. 657, 544 S.E.2d 249, 2001 N.C. App. LEXIS 174 (2001).

Where the defendant was charged with assault with a deadly weapon inflicting serious injury, he was not entitled to instructions on either simple assault or assault with a deadly weapon, where the evidence was undisputed that the victim had been seriously injured. State v. Uvalle, 151 N.C. App. 446, 565 S.E.2d 727, 2002 N.C. App. LEXIS 752 (2002).

Trial court did not commit plain error when it failed to instruct the jury on the lesser included offense of assault with a deadly weapon inflicting serious injury as the evidence showed that defendant went into his home, retrieved a loaded gun, pointed the gun at the victim at close range, told the victim he was not leaving the alley that day, and then shot the victim in the back. It was irrelevant that defendant only shot the victim one time as the lack of multiple shots fired did not negate intent to kill. State v. Cromartie, 177 N.C. App. 73, 627 S.E.2d 677, 2006 N.C. App. LEXIS 701 (2006).

Trial court did not err in declining to instruct the jury on misdemeanor assault with a deadly weapon, as a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury, where the evidence, including the blood, the 53 staples used to close the lacerations to the victim’s head, the severed finger, and the loss of use of a finger, showed that the victim sustained a serious injury. State v. Flaugher, 214 N.C. App. 370, 713 S.E.2d 576, 2011 N.C. App. LEXIS 1754 (2011).

Instruction on Meaning of “Assault”. —

It is incumbent upon the trial judge to define or otherwise explain to a jury the meaning of the legal term “assault.” State v. Hickman, 21 N.C. App. 421, 204 S.E.2d 718, 1974 N.C. App. LEXIS 1821 (1974).

Conviction of Simple Assault. —

An instruction directing verdict of guilty of at least simple assault was not erroneous when the prosecuting witness had been injured by being struck by some hard metallic substance in the defendant’s hand, which he did not see, causing his nose to be broken and other serious injuries. State v. Strickland, 192 N.C. 253 , 134 S.E. 850, 1926 N.C. LEXIS 275 (1926).

Omission of “Assault with a Deadly Weapon” from Charge to Jury. —

When accused was indicted under this section for an assault with intent to kill and with a deadly weapon, the omission, by the court in its charge, of “assault with a deadly weapon” from the catalogue of permissible verdicts, did not deprive the jury of the statutory authority to consider it. State v. Bentley, 223 N.C. 563 , 27 S.E.2d 738, 1943 N.C. LEXIS 324 (1943).

State Must Prove Murderous Intent. —

Upon a trial of one charged with using a deadly weapon in inflicting a serious injury not resulting in death, under this section, an instruction that the use of such weapon raised a presumption of felonious intent was reversible error, the fact of murderous intent being for the State to prove. State v. Gibson, 196 N.C. 393 , 145 S.E. 772, 1928 N.C. LEXIS 387 (1928).

The term “intent to kill” is self-explanatory and the trial court is not required to define the term in its charge. State v. Plemmons, 230 N.C. 56 , 52 S.E.2d 10, 1949 N.C. LEXIS 569 (1949).

In the absence of a special request for instructions from the defendant, the judge is not required to define “intent to kill.” The meaning is obvious and no explanation is necessary. However, when a trial judge undertakes to define the term, he must do so correctly. State v. Parks, 290 N.C. 748 , 228 S.E.2d 248, 1976 N.C. LEXIS 1180 (1976).

Deadly Weapons. —

Instruction was erroneous and prejudicial because it invaded the province of the jury to determine whether nightstick used by the defendant was a “deadly weapon.” State v. Buchanan, 28 N.C. App. 163, 220 S.E.2d 207, 1975 N.C. App. LEXIS 1701 (1975), cert. denied, 289 N.C. 452 , 223 S.E.2d 161, 1976 N.C. LEXIS 1308 (1976).

In prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and for attempted robbery with a dangerous weapon, where victim testified that she was stabbed with a pocketknife and treating physician testified that victim was bleeding profusely from all of her wounds when she arrived at hospital, that she lost from one to two quarts of blood, and that she had to be hospitalized for four days, the trial court did not err in instructing the jury that a knife is a dangerous or deadly weapon. State v. Mason, 79 N.C. App. 477, 339 S.E.2d 474, 1986 N.C. App. LEXIS 2081 (1986).

Instruction as to Both Assault and Serious Injury. —

The plain meaning of “inflicts serious injury,” under G.S. 14-32(b) was that if a person committed an assault with a deadly weapon and serious injury resulted from that assault, the person was guilty of felonious assault, so a disjunctive jury instruction which did not allow a determination of whether the jury unanimously found that defendant both committed an assault with a deadly weapon and serious injury resulted from the use of that deadly weapon was fatally defective. State v. Lotharp, 148 N.C. App. 435, 559 S.E.2d 807, 2002 N.C. App. LEXIS 18 , rev'd, 356 N.C. 420 , 571 S.E.2d 583, 2002 N.C. LEXIS 1102 (2002).

Instruction As to Serious Injury. —

Where the evidence was sufficient of an assault with a deadly weapon with intent to kill, not resulting in death, a charge by the judge to the jury that “serious injury” included “anything that would cause a breach of the peace,” was held not to be reversible error to the defendant’s prejudice where all the evidence tended to show that serious injury was inflicted in violation of this section. State v. Hefner, 199 N.C. 778 , 155 S.E. 879, 1930 N.C. LEXIS 251 (1930).

In a prosecution for assault with a deadly weapon inflicting serious injury, the trial judge’s instruction to the jury that a serious injury was any physical injury that caused great pain and suffering was not error since it imposed a greater degree of injury than necessary. State v. Williams, 29 N.C. App. 24, 222 S.E.2d 720, 1976 N.C. App. LEXIS 2369 , cert. denied, 289 N.C. 728 , 224 S.E.2d 676, 1976 N.C. LEXIS 1387 (1976).

In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, where the State’s evidence with respect to the injuries is uncontradicted and the injuries could not conceivably be considered anything but serious, the trial judge may instruct the jury that if they believe the evidence as to the injuries, then they will find that there was serious injury. State v. Davis, 33 N.C. App. 262, 234 S.E.2d 762, 1977 N.C. App. LEXIS 2175 (1977).

Where the defendant was charged with first-degree sexual offense, but he was convicted of second-degree sexual offense which does not include either use of a deadly weapon or the infliction of serious injury, the trial court did not err in failing to instruct the jury not to consider evidence of serious injury caused by the sexual offense in determining its verdict on the assault with a deadly weapon inflicting serious injury charge, for in convicting him of second-degree sexual offense the jury necessarily found that no serious injury was inflicted during that offense, and in convicting him of assault with a deadly weapon inflicting serious injury they necessarily found that the victim’s only serious injury was inflicted during the assault with the deadly weapon. State v. Hensley, 91 N.C. App. 282, 371 S.E.2d 498, 1988 N.C. App. LEXIS 816 (1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1647, 104 L. Ed. 2d 161, 1989 U.S. LEXIS 1760 (1989).

While there was sufficient evidence for the assault with a deadly weapon inflicting serious injury charge to withstand a motion to dismiss, the trial court’s instruction to the jury that the gunshot wound was serious required remand because there was a reasonable possibility that the jury would find the injury not serious, and therefore find defendant not guilty. State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615, 2007 N.C. App. LEXIS 1162 (2007).

Agreement Among Reasonable Minds. —

In the absence of conflicting evidence, a trial judge may instruct the jury that injuries to a victim are serious as a matter of law if reasonable minds could not differ as to their serious nature. State v. Hedgepeth, 330 N.C. 38 , 409 S.E.2d 309, 1991 N.C. LEXIS 663 (1991).

Failure to Instruct Jury on Shooting by Accident. —

Where in a prosecution for assault with a deadly weapon with intent to kill inflicting serious bodily harm, all of the evidence indicated that defendant intended to fire and did fire the shot or shots which resulted in injury to the victim, defendant was not entitled to an instruction on shooting by accident or misadventure. State v. Efird, 37 N.C. App. 66, 245 S.E.2d 226, 1978 N.C. App. LEXIS 2659 (1978).

Failure to Define Accident. —

In a prosecution for murder and assault with a deadly weapon with intent to kill where the trial judge instructs the jury on the defense of accident it is not error if the court does not define the word “accident.” State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, 1976 N.C. App. LEXIS 2364 , cert. denied, 289 N.C. 728 , 224 S.E.2d 675, 1976 N.C. LEXIS 1385 (1976).

Failure to Instruct Jury to Return Not Guilty Verdict if State Failed to Prove Any Elements of the Crime Charged. —

Because defendant’s plea of not guilty to a charge of assault with a deadly weapon inflicting serious injury with the intent to kill placed the burden upon the State to satisfy the jury beyond a reasonable doubt of every element of the offenses charged in the bill of indictment, defendant was entitled to a specific instruction that if the jury determined that the State failed to prove any of the elements of the charges, it should return a verdict of not guilty. The trial court’s failure to include such an instruction necessitated a new trial. State v. McArthur, 186 N.C. App. 373, 651 S.E.2d 256, 2007 N.C. App. LEXIS 2202 (2007).

Self-Defense. —

Instructions implying that defendant could not lawfully use force in self defense unless he was threatened with death or great bodily harm were erroneous. State v. Fletcher, 268 N.C. 140 , 150 S.E.2d 54, 1966 N.C. LEXIS 1143 (1966).

Instructions implying that the burden of proof was on defendant to satisfy the jury that he acted in self defense have no application in criminal prosecutions for felonious assault or assault with a deadly weapon. State v. Fletcher, 268 N.C. 140 , 150 S.E.2d 54, 1966 N.C. LEXIS 1143 (1966).

Instruction on self-defense was erroneous which told the jury that defendant could use no more force than necessary in defending himself. The law is that the defendant could use such force as was reasonably necessary or apparently necessary. One may fight in self defense and may use more force than is actually necessary to prevent death or great bodily harm, if he believes it to be necessary and has a reasonable ground for the belief. State v. Hearns, 9 N.C. App. 42, 175 S.E.2d 376, 1970 N.C. App. LEXIS 1273 (1970).

In a felonious assault prosecution, the language used by the court in instructing the jury on self defense effectively conveyed to the jury that it had to determine the reasonableness of defendant’s belief in the necessity of force from the circumstances as they appeared to him at the time of the assault. State v. Cantrell, 24 N.C. App. 575, 211 S.E.2d 525, 1975 N.C. App. LEXIS 2437 (1975).

The failure of the trial judge to include not guilty by reason of self-defense as a possible verdict in his final mandate to the jury was not cured by the discussion of the law of self-defense in the body of the charge. By failing to so charge, the jury could have assumed that a verdict of not guilty by reason of self-defense was not a permissible verdict in the case. State v. Girley, 27 N.C. App. 388, 219 S.E.2d 301, 1975 N.C. App. LEXIS 1859 (1975), cert. denied, 289 N.C. 141 , 220 S.E.2d 799, 1976 N.C. LEXIS 1231 (1976).

In a prosecution for assault with a deadly weapon with intent to kill, inflicting serious injury, an instruction on self defense was not warranted where defendant never abandoned the fight and never withdrew, but simply drove off a short distance out of sight of the victim and then stepped from his car and shot the victim. State v. Plemmons, 29 N.C. App. 159, 223 S.E.2d 549, 1976 N.C. App. LEXIS 2401 (1976).

Trial court did not err in refusing defendant’s request for an instruction on self-defense where the victim merely walked past defendant in the day room and exhibited no threatening behavior toward defendant before defendant assaulted him, where defendant was not afraid that victim would personally harm him, and where there was no evidence that victim had the financial ability to arrange for an assault against anyone, nor that he ever named defendant as being the target of any alleged assault. State v. Lovell, 93 N.C. App. 726, 379 S.E.2d 101, 1989 N.C. App. LEXIS 390 (1989).

Where Victim Is Initial Assailant Self-Defense Instruction Improper. —

Trial court erred in its instructions to the effect that self defense was unavailable to defendant if he was the aggressor where the testimony of both victim and defendant pointed to the victim as the initial assailant. State v. Tann, 57 N.C. App. 527, 291 S.E.2d 824, 1982 N.C. App. LEXIS 2670 (1982).

Erroneous Instruction on Self-Defense. —

Where although trial judge related in his summary some evidence that victim had threatened defendant prior to the shooting, judge failed to establish a relation between the previous incidents and defendant’s claim of self-defense, and did not directly explain and apply the law of self defense to any of the evidence except to say that the jury should consider whether or not victim had a weapon in his pocket, this was error. State v. Tann, 57 N.C. App. 527, 291 S.E.2d 824, 1982 N.C. App. LEXIS 2670 (1982).

Defense of Home. —

Where there was evidence that defendant acted in defense of his home, an instruction on the defendant’s right to act in self defense without an instruction also on the defendant’s right to act in defense of home contained prejudicial error. State v. Edwards, 28 N.C. App. 196, 220 S.E.2d 158, 1975 N.C. App. LEXIS 1711 (1975).

Instruction on Defendant’s Right to Evict Prosecuting Witness. —

In a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err in failing to charge the jury on defendant’s right to evict the prosecuting witness from defendant’s home and in failing to define the force which could have been used to accomplish such eviction, since defendant did not present any evidence that he tried to remove the victim by a gentle laying on of hands prior to the shooting, nor was there any evidence that the victim ever threatened or used deadly physical force upon defendant. State v. Myers, 49 N.C. App. 197, 270 S.E.2d 574, 1980 N.C. App. LEXIS 3327 (1980).

Evidence Sufficient to Require Instruction as to Defense of Third Person. —

Evidence was sufficient to require an instruction as to the right of the defendant, indicted for a felonious assault with a deadly weapon with intent to kill, as a private citizen to interfere with and prevent the prosecuting witness from committing a felonious assault on a third person. State v. Hornbuckle, 265 N.C. 312 , 144 S.E.2d 12, 1965 N.C. LEXIS 972 (1965).

Where defendant saw the victim force his former girl friend from a dance hall and down the street several blocks, knew that victim had threatened to kill the girl and that he was a dangerous man with a propensity for violent conduct, observed that the victim was acting in a wild and irrational manner as if he had been drinking or taking some drugs and observed that the victim reached for his pocket just before defendant shot him, the trial court committed prejudicial error in failing to instruct upon the right of defendant to go to the defense of a third person to prevent a felonious assault, since the court must instruct the jury on all substantial features of the case that arise from the evidence. State v. Graves, 18 N.C. App. 177, 196 S.E.2d 582, 1973 N.C. App. LEXIS 1811 (1973).

Instruction Upheld. —

Where the only issue before the jury was whether a shooting was accidental or intentional, judge’s remark at end of instruction that “of course, pointing a gun at a person is not lawful conduct,” did not affect the proceeding so that without the statement the verdict would have been different; therefore, there was no plain error. State v. Kinney, 92 N.C. App. 671, 375 S.E.2d 692, 1989 N.C. App. LEXIS 44 (1989).

Instruction Held Erroneous. —

As assault inflicting serious bodily injury is not a lesser included offense of assault with a deadly weapon with intent to kill and inflict serious injury, the trial court committed reversible error in submitting the former to the jury. State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1, 2002 N.C. App. LEXIS 296 (2002).

X.Verdict

Terms of Verdict. —

In a prosecution under this section a verdict of guilty of “assault with intent to harm but not to kill” was a complete and sensible verdict, and supported judgment for a simple assault, the words “without intent to kill but with intent to harm” being mere surplusage. State v. Sumner, 269 N.C. 555 , 153 S.E.2d 111, 1967 N.C. LEXIS 1105 (1967).

Defendant’s conviction of assault with a deadly weapon inflicting serious injury was improper, as the jury verdict form did not include an option of finding defendant not guilty, nor did it include an option to find defendant guilty of simple assault. The instructions did not cure the omission of a “not guilty” option from the jury verdict form. State v. Jenkins, 189 N.C. App. 502, 658 S.E.2d 309, 2008 N.C. App. LEXIS 605 (2008).

Erroneous Instruction — Not Cured by Verdict. —

An instruction that defendant’s admission of assault with a deadly weapon, which resulted in serious injury, raised the presumption of defendant’s guilt of assault with a deadly weapon with intent to kill, resulting in serious injury, as charged, and placed the burden on defendant to satisfy the jury of matters in mitigation or excuse, was not cured by a verdict of guilty of the misdemeanor of an assault with a deadly weapon, since the instruction required defendant to show to the satisfaction of the jury, matters in mitigation or excuse before he could successfully ask for a verdict of not guilty. State v. Carver, 213 N.C. 150 , 195 S.E. 349, 1938 N.C. LEXIS 28 (1938).

Same — Cured by Conviction of Lesser Included Offense. —

Any error in instructing the jury as to defendant’s guilt or innocence of felonious assault under subsection (a) of this section was cured by the jury’s verdict which found defendant guilty of the lesser included offense described in subsection (b). State v. Hearns, 9 N.C. App. 42, 175 S.E.2d 376, 1970 N.C. App. LEXIS 1273 (1970).

Verdict Insufficient to Support Sentence Under This Section. —

Although the indictment charged and the evidence showed that the deadly weapon used in an assault was a firearm, the jury’s verdict of guilty of “assault with a deadly weapon with intent to kill” would not support a sentence of five years for assault with a firearm with intent to kill pursuant to subsection (c) but would support a maximum sentence of two years under G.S. 14-33 . State v. Edmondson, 283 N.C. 533 , 196 S.E.2d 505, 1973 N.C. LEXIS 1001 (1973) (decided prior to the 1973 amendment to this section) .

XI.Sufficiency of Evidence

Evidence Favorable to Defendant. —

In defendant’s trial on charges of conspiracy to commit first degree murder, attempted first degree murder, and assault with a deadly weapon with intent to kill, the State did not have a duty to locate evidence favorable to defendant, and the trial court did not err by denying defendant’s request that the State determine the identities of mental health professionals who were treating a prosecution witness and to provide defendant with that information, or by denying defendant access to mental health records concerning the witness that were made available to the court, after the court reviewed those records in camera and decided they did not contain exculpatory information. State v. Lynn, 157 N.C. App. 217, 578 S.E.2d 628, 2003 N.C. App. LEXIS 533 (2003).

Evidence of Infliction of Serious Injury. —

Evidence that several defendants indicted under the provisions of this section were discovered selling liquor in violation of our prohibition law, and that they were armed with pistols and blackjacks and acted in concert, and that one of them threatened the life of the officer attempting to arrest them, and that the others participated by carrying the officer to a room of a garage where they beat him with a blackjack into unconsciousness, and carried him out into a field and left him there where later and alone he recovered consciousness, was sufficient for the conviction of them all of an assault with a deadly weapon with intent to kill, resulting in serious injury, in violation of this section. State v. Hefner, 199 N.C. 778 , 155 S.E. 879, 1930 N.C. LEXIS 251 (1930).

Where the evidence tended to show that the force of shotgun blasts into truck drove shards of glass into the arm and shoulder of victim, blood was observed on his arm, treatment for the injuries was given and officer testified that when he arrived at the hospital victim was very shaken, there was sufficient evidence of injury presented at trial to withstand defendants’ motion to dismiss. State v. Alexander, 337 N.C. 182 , 446 S.E.2d 83, 1994 N.C. LEXIS 422 (1994).

Despite a defendant’s argument that the evidence as to his infliction of serious injury upon his victims was insufficient, the evidence was sufficient to establish the “serious bodily injury” element for his convictions for felonious child abuse inflicting serious injury under G.S. 14-318.4(a) and assault with a deadly weapon inflicting serious injury under G.S. 14-32(b). State v. Lowe, 154 N.C. App. 607, 572 S.E.2d 850, 2002 N.C. App. LEXIS 1530 (2002).

Intent to Kill. —

Defendant’s intent to not only rob or to injure, but to kill was supported by evidence that defendant leapt onto the victim’s back once he seized defendant’s knife; that he struggled with him, causing him serious injury; that defendant threatened the victim before and after the scuffle without appearing to hear his acquiescence in his demands; that defendant had attempted to obtain and had subsequently regretted not being equipped with a gun at the assault; and that defendant had instead obtained and chosen to use an assault-type knife with finger-holes, designed to enable an assailant to repeatedly stab a victim without losing his grip. State v. Grigsby, 351 N.C. 454 , 526 S.E.2d 460, 2000 N.C. LEXIS 236 (2000).

Use of Deadly Weapon. —

The evidence was clearly sufficient to raise an inference of the use of a deadly weapon where the victim had what looked like a board print on his face and he was bleeding from his face and eyes, with a broken cheekbone. State v. Phillips, 87 N.C. App. 246, 360 S.E.2d 475, 1987 N.C. App. LEXIS 3119 (1987).

The State’s evidence that the defendant hit the victim with a log and that the victim suffered two hematomas near his brain and received 15 stitches sufficiently supported its theory that the defendant used a deadly weapon during the assault. State v. Cody, 135 N.C. App. 722, 522 S.E.2d 777, 1999 N.C. App. LEXIS 1235 (1999).

Trial court did not err in denying defendant’s motion to dismiss the charges because, although defendant’s actions while driving were not impaired by alcohol, they were still sufficient to establish the culpable negligence needed to support both involuntary manslaughter and assault with a deadly weapon inflicting serious injury. A witness noticed inappropriate driving by both defendant and the decedent prior to their vehicles approaching a sharp curve, as they approached the curve, defendant attempted to pass the decedent and the witness despite having no visibility around the curve, and defendant’s attempt to pass the vehicles at that particular time was in blatant disregard of safety concerns associated with that portion of the highway and a violation of G.S. 20-150 . State v. Wade, 161 N.C. App. 686, 589 S.E.2d 379, 2003 N.C. App. LEXIS 2268 (2003).

The court is not required to instruct on simple assault where the evidence is uncontradicted that the assault was committed with a deadly weapon per se. State v. Hensley, 90 N.C. App. 245, 368 S.E.2d 208, 1988 N.C. App. LEXIS 446 (1988).

Assault. —

The State’s evidence that the defendant participated in a fight and that one witness saw him hit the victim with a “branch or a log” sufficiently supported its theory that he assaulted the victim. State v. Cody, 135 N.C. App. 722, 522 S.E.2d 777, 1999 N.C. App. LEXIS 1235 (1999).

Evidence Sufficient to Survive Motion to Dismiss. —

Trial court did not err in denying defendant’s motion to dismiss two counts of assault with a deadly weapon inflicting serious injury, under G.S. 14-32(b), because, although not perfectly clear from the victim’s testimony, in context of the overall narrative and in the light most favorable to the State of North Carolina, it was reasonable to infer that the various instances when defendant hit or struck the victim occurred separately from each other with distinct interruptions between them. Therefore, they could have formed the basis of separate assault counts, and the fact that these assaults formed part of chronic and continual abuse did not change that conclusion. State v. Lanford, 225 N.C. App. 189, 736 S.E.2d 619, 2013 N.C. App. LEXIS 71 (2013).

Trial court did not err in denying defendant’s motion to dismiss the charge of assault with a deadly weapon inflicting serious injury, as there was evidence that defendant sought to assist his girlfriend in taking her children from the victim, her estranged husband, an enlisted the help of another, who brought weapons. State v. Johnson, 251 N.C. App. 260, 795 S.E.2d 126, 2016 N.C. App. LEXIS 1319 (2016).

Where there is positive and uncontradicted evidence as to the element of a serious injury, an instruction on the lesser offense of assault with a deadly weapon is not required. State v. Hensley, 90 N.C. App. 245, 368 S.E.2d 208, 1988 N.C. App. LEXIS 446 (1988).

Failure to Instruct on Defense of Family Upheld. —

Where although victim may have earlier assaulted defendant’s wife, at the time of defendant’s assault on the victim the wife was removed from any likely harm from the victim, the trial court committed no error in failing to instruct on defense of family. State v. Hall, 89 N.C. App. 491, 366 S.E.2d 527, 1988 N.C. App. LEXIS 269 (1988).

Evidence Sufficient to Support Use of Nonstatutory Aggravating Factors in Sentencing. —

Where evidence presented tended to show defendant acquired personal information about his victim, adopted an alias, contacted him to schedule a meeting about his girlfriend in order to observe what the victim looked like, and several weeks later on the night of the offense, awaited the victim’s return home, spoke his name when the latter passed by, and then fired four shots at him as he tried to escape, the circumstances of this felonious assault supported the trial court’s finding of premeditation and deliberation, and tended to show a higher degree of culpability than other assault cases in which only the assaultive conduct itself is pertinent to the degree of culpability of the defendant; therefore, the use of nonstatutory factors to aggravate defendant’s sentence was proper. State v. Smith, 92 N.C. App. 500, 374 S.E.2d 617, 1988 N.C. App. LEXIS 1071 (1988).

It was error for the trial court to find as a factor in aggravation that assault with a deadly weapon resulting in serious injury was especially heinous, atrocious or cruel, where the victim received 50 stitches, was hospitalized for two weeks, lost the sight in one eye and had some amnesia, as it could not be said that the conduct of defendant was any more brutal than that inherent in any assault with a deadly weapon resulting in serious bodily injury. State v. McLean, 74 N.C. App. 224, 328 S.E.2d 451, 1985 N.C. App. LEXIS 3440 (1985).

Defendant’s convictions on both assault with a deadly weapon inflicting serious injury and attempted voluntary manslaughter for shooting a person were mutually exclusive offenses and the trial court’s consolidation of the offenses into a single judgment was error that mandated a new trial; for the jury to convict on both offenses, it had to find either that defendant did not have the intent to kill, which would support the assault offense, or that he had the intent to kill, but that such intent was negated by sudden provocation, which would support the attempted manslaughter charge. State v. Hames, 170 N.C. App. 312, 612 S.E.2d 408, 2005 N.C. App. LEXIS 1007 (2005).

Sentence Supported by Evidence. —

Evidence that assault victim was beaten, shot in the back of the head, driven over by a car, and left on the highway with his leg caught up underneath the car held to justify a sentence in excess of the presumptive term. State v. Poole, 82 N.C. App. 117, 345 S.E.2d 466, 1986 N.C. App. LEXIS 2398 (1986).

No error occurred in the imposition of an aggravated sentence on defendant’s conviction for assault with a deadly weapon with intent to kill inflicting serious injury, because while G.S. 15A-1340.16 did not apply based on when the crime occurred, a common-law procedural mechanism existed for submitted aggravating factors to the jury in the form of a special verdict; overwhelming evidence was presented that defendant shot a rival gang member in the rival gang member’s territory, supporting the aggravating factor that defendant committed the crime to further or benefit the purposes of a criminal street gang. State v. Roberson, 182 N.C. App. 133, 641 S.E.2d 347, 2007 N.C. App. LEXIS 491 (2007).

Defendant’s conviction and sentence for assault on a child had to be vacated because he could not be “guilty of” violating that statute where he was convicted and sentenced for assault with a deadly weapon, which carried a harsher punishment than that provided under the first statute. State v. Perry, 260 N.C. App. 659, 818 S.E.2d 699, 2018 N.C. App. LEXIS 781 , writ denied, 371 N.C. 790 , 821 S.E.2d 175, 2018 N.C. LEXIS 1089 (2018).

Evidence Sufficient to Support Guilt as to Multiple Victims. —

Where the evidence supported the guilt of both defendants as to all of the felonious assaults, it made no difference which of the felonious assaults was the underlying felony, which defendant actually fired the fatal shots or whether defendants intended that the victim be killed. State v. Abraham, 338 N.C. 315 , 451 S.E.2d 131, 1994 N.C. LEXIS 703 (1994).

The charging of both felonious assault and attempted murder as to each victim was not error although these charges arose out of the same incident; substantial evidence existed against defendant of every essential element of both. State v. Washington, 141 N.C. App. 354, 540 S.E.2d 388, 2000 N.C. App. LEXIS 1405 (2000).

Evidence Sufficient to Support Conviction. —

See State v. Cody, 225 N.C. 38 , 33 S.E.2d 71, 1945 N.C. LEXIS 243 (1945); State v. Williams, 272 N.C. 273 , 158 S.E.2d 85, 1967 N.C. LEXIS 1018 (1967); State v. Strater, 272 N.C. 276 , 158 S.E.2d 60, 1967 N.C. LEXIS 1019 (1967); State v. Burns, 24 N.C. App. 392, 210 S.E.2d 524, 1975 N.C. App. LEXIS 2390 (1975).

Evidence held sufficient to permit the jury to conclude that defendant was guilty of voluntary manslaughter and assault with a deadly weapon inflicting serious injury. State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603, 1986 N.C. App. LEXIS 2135 , writ denied, 316 N.C. 556 , 344 S.E.2d 3, 1986 N.C. LEXIS 2377 (1986).

From evidence that five persons were injured by gunshots and the particular circumstances surrounding those shootings, i.e., a shootout between two rival gangs, the jury could reasonably infer that defendant, either solely or while acting in concert with others, inflicted injuries during the shootout, and accordingly, it was for the jury to decide whether the facts satisfied them beyond a reasonable doubt that defendant was guilty of assault with a deadly weapon. State v. Platt, 85 N.C. App. 220, 354 S.E.2d 332, 1987 N.C. App. LEXIS 2578 (1987).

Evidence that as defendant drove two and one-half ton truck toward road where deputies were located, he was waving one arm out the window and screaming “Stand right there. . . . I’ll kill you,” and that he drove the truck straight at the deputies before colliding with two automobiles and running into ditch, raised reasonable inferences sufficient to take to the jury the issues of defendant’s use of the truck as a deadly weapon and whether he acted with the requisite specific intent to kill the deputies. State v. Hinson, 85 N.C. App. 558, 355 S.E.2d 232, 1987 N.C. App. LEXIS 2630 (1987).

Evidence held sufficient to support a finding that defendant committed each of the elements of assault with a deadly weapon with intent to kill inflicting serious bodily injury not resulting in death. State v. James, 321 N.C. 676 , 365 S.E.2d 579, 1988 N.C. LEXIS 226 (1988).

Based on the evidence, defendant was properly found guilty of aiding and abetting the commission of the offense of assault with a deadly weapon inflicting serious injury not only because he [was] present when [the crime was] committed but because, by his actions, he clearly show[ed] his consent to the criminal purpose and contribution to its execution; based on the evidence, defendant was also properly found guilty of damage to personal property. State v. Poe, 119 N.C. App. 266, 458 S.E.2d 242, 1995 N.C. App. LEXIS 468 , writ denied, 341 N.C. 423 , 461 S.E.2d 765, 1995 N.C. LEXIS 522 (1995).

Conviction was affirmed where substantial evidence was presented that defendant assaulted his estranged wife with a broken bottle to survive defendant’s motion to dismiss; and the evidence amply supported the trial court’s instruction that a broken wine bottle was a dangerous and deadly weapon as a matter of law because it was likely to produce death or great bodily harm. State v. Morgan, 156 N.C. App. 523, 577 S.E.2d 380, 2003 N.C. App. LEXIS 187 (2003).

Evidence was sufficient to convict defendants of assault with a deadly weapon with the intent to kill, in violation of G.S. 14-32(a), because the State of North Carolina’s evidence showed that (1) defendants arrived together; (2) one defendant handed the other defendant the handgun that the other defendant used to shoot the victim; (3) one defendant encouraged the other defendant to continue shooting the victim; and (4) defendants fled the scene together in the same car. State v. Wade, 213 N.C. App. 481, 714 S.E.2d 451, 2011 N.C. App. LEXIS 1498 (2011).

Because defendant assaulted his victim with a lawn chair and not his fists alone, the State was not required to present evidence as to defendant’s or the victim’s size of condition when the assault occurred; thus, evidence that after the assault the lawn chair was bent and bloody but that it had not been bent or bloody before the assault was sufficient to convict defendant of assault with a deadly weapon. State v. Mills, 221 N.C. App. 409, 726 S.E.2d 926, 2012 N.C. App. LEXIS 771 (2012).

Evidence Insufficient to Sustain Verdict Against Defendant. —

See State v. Jarrell, 233 N.C. 741 , 65 S.E.2d 304, 1951 N.C. LEXIS 373 (1951).

Evidence held insufficient to convict the defendant of robbery with a dangerous weapon in violation of G.S. 14-87 and assault with a deadly weapon inflicting serious bodily injury in violation of subsection (b) of this section. State v. Griffin, 84 N.C. App. 671, 353 S.E.2d 679, 1987 N.C. App. LEXIS 2545 , writ denied, 319 N.C. 407 , 354 S.E.2d 732, 1987 N.C. LEXIS 1960 (1987).

§ 14-32.1. Assaults on individuals with a disability; punishments.

  1. For purposes of this section, an “individual with a disability” is an individual who has one or more of the following that would substantially impair the ability to defend oneself:
    1. A physical or mental disability, such as a decreased use of arms or legs, blindness, deafness, intellectual disability, or mental illness.
    2. An infirmity.
  2. through (d) Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 31, effective October 1, 1994.

    (e) Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any aggravated assault or assault and battery on an individual with a disability is guilty of a Class F felony. A person commits an aggravated assault or assault and battery upon an individual with a disability if, in the course of the assault or assault and battery, that person does any of the following:

    1. Uses a deadly weapon or other means of force likely to inflict serious injury or serious damage to an individual with a disability.
    2. Inflicts serious injury or serious damage to an individual with a disability.
    3. Intends to kill an individual with a disability.

      (f) Any person who commits a simple assault or battery upon an individual with a disability is guilty of a Class A1 misdemeanor.

History. 1981, c. 780, s. 1; 1993, c. 539, ss. 15, 1139; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 767, s. 31; 2006-179, s. 1; 2018-47, s. 4(m).

Editor’s Note.

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the rewriting of this section by Session Laws 2018-47, s. 4(m), effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2006-179, effective December 1, 2006, and applicable to offenses committed on or after December 1, 2006, substituted “Class A1” for “Class 1” near the end of subsection (f).

Session Laws 2018-47, s. 4(m), rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

In order to convict an individual under G.S. 14-32.1(e), the jury must find that defendant knew or had reasonable grounds to know the victim was a handicapped person. The evidence supported defendant’s conviction of aggravated assault on a handicapped person, and the conviction was affirmed, where defendant testified that she suffered from profound hearing loss, and that she was wearing a hearing aid on the evening that she was assaulted by defendant. State v. Singletary, 163 N.C. App. 449, 594 S.E.2d 64, 2004 N.C. App. LEXIS 509 , cert. denied, 359 N.C. 196 , 608 S.E.2d 65, 2004 N.C. LEXIS 1285 (2004).

Testimony as to Mental Condition of Victim Relevant and Thus, Admissible. —

Victim’s testimony regarding the victim’s mental condition, including the victim’s dreams, after the alleged incident was relevant because the victim’s mental state supported an element of the crime of felony aggravated assault on a handicapped person. State v. Lofton, 193 N.C. App. 364, 667 S.E.2d 317, 2008 N.C. App. LEXIS 1815 (2008).

§ 14-32.2. Patient abuse and neglect; punishments; definitions.

  1. It is unlawful for any person to physically abuse a patient of a health care facility or a resident of a residential care facility, when the abuse results in death or bodily injury.
  2. Unless the conduct is prohibited by some other provision of law providing for greater punishment, a violation of subsection (a) of this section is the following:
    1. A Class C felony where intentional conduct proximately causes the death of the patient or resident.
    2. A Class E felony where culpably negligent conduct proximately causes the death of the patient or resident.
    3. A Class F felony where such conduct is willful or culpably negligent and proximately causes serious bodily injury to the patient or resident.
    4. A Class H felony where such conduct evinces a pattern of conduct and the conduct is willful or culpably negligent and proximately causes bodily injury to a patient or resident.
  3. through (e1) Repealed by Session Laws 2019-76, s. 12(a), effective January 1, 2020, and applicable to offenses committed on or after that date.

    (f) Any defense which may arise under G.S. 90-321(h) or G.S. 90-322(d) pursuant to compliance with Article 23 of Chapter 90 of the General Statutes is fully applicable to any prosecution initiated under this section.

    (g) Criminal process for a violation of this section may be issued only upon the request of a district attorney.

    (h) The provisions of this section do not supersede any other applicable statutory or common law offenses.

    (i) The following definitions apply in this section:

    1. Abuse. — The willful or culpably negligent infliction of physical injury or the willful or culpably negligent violation of any law designed for the health or welfare of a patient or resident.
    2. Culpably negligent. — Conduct of a willful, gross, and flagrant character, evincing reckless disregard of human life.
    3. Health care facility. — Includes hospitals, skilled nursing facilities, intermediate care facilities, intermediate care facilities for individuals with intellectual disabilities, psychiatric facilities, rehabilitation facilities, kidney disease treatment centers, home health agencies, ambulatory surgical facilities, and any other health care related facility whether publicly or privately owned.
    4. Person. — Includes any individual, association, corporation, partnership, or other entity.
    5. Residential care facility. — Includes adult care homes and any other residential care related facility whether publicly or privately owned.

History. 1987, c. 527, s. 1; 1993, c. 539, s. 1140; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 535, s. 1; 1995 (Reg. Sess., 1996), c. 742, ss. 7, 8; 1999-334, s. 3.15; 1999-456, s. 61(b); 2007-188, s. 1; 2019-76, s. 12(a).

Editor’s Note.

At the direction of the Revisor of Statutes, a colon was substituted for a period at the end of the introductory paragraph of subsection (b).

Session Laws 1995, c. 535, s. 37, provides: “Rules adopted by the Department of Human Resources, the Medical Care Commission, and the Social Services Commission regulating domiciliary care homes prior to the effective date of this act remain in effect for adult care homes until amended or repealed.”

Session Laws 2019-76, s. 12(c) made the amendments by Session Laws 2019-76, s. 12(a) effective January 1, 2020, and applicable to offenses committed on or after that date.

Session Laws 2019-76, s. 33, provides: “Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Effect of Amendments.

Session Laws 2007-188, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, in subsection (b), substituted a semicolon for a period at the end of subdivision (b)(3); and substituted “Class H felony” for “Class A1 misdemeanor” in subdivision (b)(4).

Session Laws 2019-76, s. 12(a), effective January 1, 2020, rewrote this section.

§ 14-32.3. Domestic abuse, neglect, and exploitation of disabled or elder adults.

  1. Abuse. —  A person is guilty of abuse if that person is a caretaker of a disabled or elder adult who is residing in a domestic setting and, with malice aforethought, knowingly and willfully: (i) assaults, (ii) fails to provide medical or hygienic care, or (iii) confines or restrains the disabled or elder adult in a place or under a condition that is cruel or unsafe, and as a result of the act or failure to act the disabled or elder adult suffers mental or physical injury.If the disabled or elder adult suffers serious injury from the abuse, the caretaker is guilty of a Class F felony. If the disabled or elder adult suffers injury from the abuse, the caretaker is guilty of a Class H felony.A person is not guilty of an offense under this subsection if the act or failure to act is in accordance with G.S. 90-321 or G.S. 90-322 .
  2. Neglect. —  A person is guilty of neglect if that person is a caretaker of a disabled or elder adult who is residing in a domestic setting and, wantonly, recklessly, or with gross carelessness: (i) fails to provide medical or hygienic care, or (ii) confines or restrains the disabled or elder adult in a place or under a condition that is unsafe, and as a result of the act or failure to act the disabled or elder adult suffers mental or physical injury.If the disabled or elder adult suffers serious injury from the neglect, the caretaker is guilty of a Class G felony. If the disabled or elder adult suffers injury from the neglect, the caretaker is guilty of a Class I felony.A person is not guilty of an offense under this subsection if the act or failure to act is in accordance with G.S. 90-321 or G.S. 90-322 .
  3. Repealed by Session Laws 2005-272, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date.
  4. Definitions. —  The following definitions apply in this section:
    1. Caretaker. — A person who has the responsibility for the care of a disabled or elder adult as a result of family relationship or who has assumed the responsibility for the care of a disabled or elder adult voluntarily or by contract.
    2. Disabled adult. — A person 18 years of age or older or a lawfully emancipated minor who is present in the State of North Carolina and who is physically or mentally incapacitated as defined in G.S. 108A-101(d).
    3. Domestic setting. — Residence in any residential setting except for a health care facility or residential care facility as these terms are defined in G.S. 14-32.2 .
    4. Elder adult. — A person 60 years of age or older who is not able to provide for the social, medical, psychiatric, psychological, financial, or legal services necessary to safeguard the person’s rights and resources and to maintain the person’s physical and mental well-being.

History. 1995, c. 246, s. 1; 1995 (Reg. Sess., 1996), c. 742, s. 9; 2005-272, s. 1.

Effect of Amendments.

Session Laws 2005-272, s. 1, effective December 1, 2005, repealed subsection (c), relating to exploitation by a caretaker. See Editor’s Note for applicability.

CASE NOTES

Caretaker. —

State presented sufficient evidence from which a reasonable jury could conclude that defendant was the victim’s “caretaker” and therefore guilty of neglecting an elder adult because the State presented evidence that, in the victim’s final weeks, defendant bathed the victim, purchased food and supplies for her, assisted the victim paying her bills, helped with “general normal care, daily care things,” and purchased life insurance on the victim’s behalf and at her request. State v. Stubbs, 271 N.C. App. 778, 845 S.E.2d 125, 2020 N.C. App. LEXIS 431 , writ denied, 376 N.C. 540 , 851 S.E.2d 372, 2020 N.C. LEXIS 1176 (2020).

§ 14-32.4. Assault inflicting serious bodily injury; strangulation; penalties.

  1. Unless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts serious bodily injury is guilty of a Class F felony. “Serious bodily injury” is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.
  2. Unless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts physical injury by strangulation is guilty of a Class H felony.

History. 1996, 2nd Ex. Sess., c. 18, s. 20.13(a); 2004-186, s. 9.1.

Effect of Amendments.

Session Laws 2004-186, s. 9.1, effective December 1, 2004, and applicable to offenses committed on or after that date, added subsection (b) and designated the previously existing provisions as subsection (a); and rewrote the section heading, which formerly read “Assault inflicting serious bodily injury.”

CASE NOTES

Relationship to Other Laws. —

Based upon the application of principles of statutory construction, defendant could not have been separately convicted and punished for the offenses of both habitual misdemeanor assault, G.S. 14-33.2 , and felony assault inflicting serious bodily injury, G.S. 14-32.4(a), stemming from the same act where under the prefatory language of G.S. 14-33(c)(1), defendant’s conduct violated that statute, a necessary prerequisite for defendant’s guilt of G.S. 14-33.2 , only if his conduct was not covered under a separate provision of law providing greater punishment. Because G.S. 14-32.4(a) provided greater punishment for the act committed by defendant upon the victim, that act did not constitute a violation of G.S. 14-33(c)(1). State v. Fields, 374 N.C. 629 , 843 S.E.2d 186, 2020 N.C. LEXIS 504 (2020).

What Is Serious Bodily Injury. —

Proof of “serious bodily injury” requires proof of a more severe injury than the “serious injury” element of other assault offenses. State v. Williams, 150 N.C. App. 497, 563 S.E.2d 616, 2002 N.C. App. LEXIS 577 (2002).

“Serious Bodily Injury” Upon a Law Enforcement Officer. —

G.S. 14-34.7 was ambiguous because the statute’s title referred to assaults inflicting “serious injury” while the statute text specified assaults inflicting “serious bodily injury” — under North Carolina law, the terms “serious injury” and “serious bodily injury” were not interchangeable; however, when interpreting ambiguous statutes, the principal goal is to effectuate the purpose of the legislature, and the “manifest purpose” of the legislature in enacting G.S. 14-34.7 was to make an assault inflicting “serious injury” or “serious bodily injury” against a law enforcement officer a felony. State v. Crawford, 167 N.C. App. 777, 606 S.E.2d 375, 2005 N.C. App. LEXIS 1 (2005).

Indictment Sufficient. —

Because the indictment alleged the offense of assault inflicting serious bodily injury by reciting the words of the statute itself, the indictment was sufficient. State v. Rushing, 268 N.C. App. 285, 836 S.E.2d 262, 2019 N.C. App. LEXIS 884 (2019).

Serious Bodily Injury Shown. —

Evidence that the victim had to have his jaw wired shut for two months, causing him to lose a great deal of weight, and that he continued to suffer from back spasms as a result of two broken ribs, all as a result of his assault, was sufficient evidence of “serious bodily injury.” State v. Williams, 150 N.C. App. 497, 563 S.E.2d 616, 2002 N.C. App. LEXIS 577 (2002).

Evidence that defendant struck eight-year-old daughter on the buttocks with a board multiple times while disciplining her and that the blows caused a large bruise that was crusted around the outside, had a spot near the middle that was open and oozing, and was painful to the touch was sufficient for a jury to reasonably infer that defendant caused great pain and suffering, and the trial court did not err by denying defendant’s motion to dismiss charges of felonious child abuse, in violation of G.S. 14-318.4(a), and felonious assault inflicting serious bodily injury, in violation of G.S. 14-32.4 . State v. Williams, 154 N.C. App. 176, 571 S.E.2d 619, 2002 N.C. App. LEXIS 1397 (2002).

Evidence was sufficient to support defendants’ convictions for assault inflicting serious bodily injury where the victim testified that his facial injuries were “very” painful, and that he suffered pain for about a month, and a doctor testified that the injuries suffered by the victim were the type that caused “severe” and “extreme” pain. State v. Brown, 177 N.C. App. 177, 628 S.E.2d 787, 2006 N.C. App. LEXIS 882 (2006).

There was substantial record evidence of a serious permanent disfigurement, and sufficient evidence to supported defendant’s conviction of assault inflicting serious bodily injury, under circumstances in which defendant’s assault caused the victim facial swelling, a scalp abrasion, a fractured nose, eye swelling, and an evulsed tooth. State v. Downs, 179 N.C. App. 860, 635 S.E.2d 518, 2006 N.C. App. LEXIS 2111 (2006).

There was substantial evidence that the victim suffered a serious bodily injury, given in part that the beating left the victim with broken bones in the victim’s face, a broken hand, a cracked knee, and a swollen eye; further, the victim testified that the victim’s pain lasted for five to six weeks after the attack. State v. Jamison, 234 N.C. App. 231, 758 S.E.2d 666, 2014 N.C. App. LEXIS 564 (2014).

It was not error to deny defendant’s motion to dismiss a charge of assault on a law enforcement officer inflicting serious bodily injury because the State presented substantial evidence of (1) an assault, (2) serious bodily injury, (3) the victim being a law enforcement officer performing his official duties, and (4) defendant’s knowledge that the victim was a law enforcement officer. State v. Burwell, 256 N.C. App. 722, 808 S.E.2d 583, 2017 N.C. App. LEXIS 1024 (2017).

Trial court did not err in denying defendant’s motion to dismiss where the victim’s injury, resulting pain, and significant scar constituted substantial evidence of a serious bodily injury as defined by G.S. 14-32.4(a). State v. Fields, 265 N.C. App. 69, 827 S.E.2d 120, 2019 N.C. App. LEXIS 333 (2019), modified, aff'd, 374 N.C. 629 , 843 S.E.2d 186, 2020 N.C. LEXIS 504 (2020).

Serious Bodily Injury Not Shown. —

Because the State failed to show serious bodily injury on the part of the victim as the vicious beating of the victim did not place her at substantial risk of death, trial court erred in denying defendant’s motion to dismiss a charge of assault upon one victim inflicting serious bodily injury under G.S. 14-32.4(a). State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412, 2009 N.C. App. LEXIS 2214 (2009).

Evidence Held Sufficient. —

Victim’s testimony that defendant attacked the victim and that the victim feared for her life, which was ample evidence of an assault, and the fact that the victim received cuts and bruises on her neck as a result of being strangled, which was confirmed by photographic evidence, provided sufficient evidence of each essential element of assault by strangulation. State v. Little, 188 N.C. App. 152, 654 S.E.2d 760, 2008 N.C. App. LEXIS 97 (2008).

Conviction for assault inflicting serious bodily injury was supported by testimony that the victim had abdominal pain and a large bruise and swelling over the victim’s left collarbone, which an x-ray revealed was broken, and that an emergency room nurse gathering rape the kit was unable to use a speculum because the victim was in so much pain, allowing jury to conclude that the victim’s injuries created a protracted condition that caused extreme pain. State v. Rouse, 198 N.C. App. 378, 679 S.E.2d 520, 2009 N.C. App. LEXIS 1162 (2009).

Sufficient evidence supported defendant’s conviction of assault inflicting serious bodily injury, G.S. 14-32.4 , as there was evidence of a mitochondrial DNA match between defendant’s parent and two hairs found in the victim’s bedroom. This evidence strongly suggested that the assailant was someone in the same maternal line as defendant’s parent, and defendant’s two brothers were in custody when the attack on the victim took place. State v. McAllister, 190 N.C. App. 289, 660 S.E.2d 247, 2008 N.C. App. LEXIS 832 (2008).

Evidence, including a victim’s statement that she felt that defendant was trying to crush her throat, that he pushed down with his weight on her neck with his foot, that she thought he was trying to choke her out or make her go unconscious, and that she thought she was going to die, was sufficient to convict defendant of assault by strangulation under G.S. 14-32.4 . State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412, 2009 N.C. App. LEXIS 2214 (2009).

Trial court did not err in denying defendant’s motion to dismiss the charge of assault by strangulation, under G.S. 14-32.4(b), because there was sufficient evidence, from the victim’s testimony that defendant grabbed the victim by the neck and head in the manner described on at least two separate occasions, that there were separate assaults with distinct interruptions, one of which could have constituted an assault by strangulation. The fact that these assaults were part of a pattern of chronic abuse did not mean that they were considered one assault. State v. Lanford, 225 N.C. App. 189, 736 S.E.2d 619, 2013 N.C. App. LEXIS 71 (2013).

Interpreting the assault by strangulation statute to require extensive physical injuries would frustrate the purpose of the General Assembly, as multiple other offenses incorporated that type of additional injury; accordingly, such proof was not required to support a conviction. State v. Lowery, 228 N.C. App. 229, 743 S.E.2d 696, 2013 N.C. App. LEXIS 715 , cert. dismissed, 367 N.C. 272 , 752 S.E.2d 482, 2013 N.C. LEXIS 1432 (2013).

For purposes of an assault by strangulation conviction, the cuts and bruises on the victim’s neck and strangulation during the assault that caused difficulty breathing were sufficient to support each element of the offense. State v. Lowery, 228 N.C. App. 229, 743 S.E.2d 696, 2013 N.C. App. LEXIS 715 , cert. dismissed, 367 N.C. 272 , 752 S.E.2d 482, 2013 N.C. LEXIS 1432 (2013).

While there was insufficient evidence to support the “serious bodily injury” element of assault inflicting serious bodily injury on an officer, the jury clearly found that the officer sustained a physical injury and thus, the evidence supported a conviction for assault on a law officer inflicting physical injury. State v. Williams, 255 N.C. App. 168, 804 S.E.2d 570, 2017 N.C. App. LEXIS 659 (2017).

Trial court did not err in denying defendant’s motion to dismiss because there was sufficient evidence to support a determination that the victim suffered serious bodily injury based on the injury to the victim’s left eye, which left the victim completely blind for a week and with impaired vision for two weeks. State v. Rushing, 268 N.C. App. 285, 836 S.E.2d 262, 2019 N.C. App. LEXIS 884 (2019).

Defendant’s motion to dismiss the two felony hit and run charges was properly denied because contact was not required in order for an accident to occur; and, even if defendant could not have seen behind the trailer and even if there was no contact between the motorcycle’s front tire and the trailer, the circumstantial evidence was sufficient to accept a conclusion that defendant knew, or reasonably should have known, that the vehicle he was driving was involved in a crash and that someone was killed or seriously injured as a result. State v. Gibson, 276 N.C. App. 230, 855 S.E.2d 533, 2021- NCCOA-69, 2021 N.C. App. LEXIS 80 (2021).

Denial of Motion to Dismiss. —

Trial court did not err by denying defendant’s motion to dismiss a felony breaking and entering with the intent to terrorize or injure charge and a felony assault inflicting serious bodily injury charge. Defendant’s acts of entering the victim’s home uninvited, arguing with the victim, and then proceeding to violently attacking the victim were sufficient to support an inference that defendant entered the victim’s home with the intent to terrorize or injure the victim. State v. Griffin, 264 N.C. App. 490, 826 S.E.2d 253, 2019 N.C. App. LEXIS 259 (2019).

Lesser Included Offense. —

As assault inflicting serious bodily injury is not a lesser included offense of assault with a deadly weapon with intent to kill and inflict serious injury, the trial court committed reversible error in submitting the former to the jury. State v. Hannah, 149 N.C. App. 713, 563 S.E.2d 1, 2002 N.C. App. LEXIS 296 (2002).

Under G.S. 14-33(c)(2), the essential elements of assault on a female were assault upon a female person by a male person at least 18 years of age; in contrast, the offense of assault by strangulation, G.S. 14-32.4(b), required only that an individual assault another person and inflict physical injury by strangulation. Because each offense included at least one element not present in the other, assault on a female was not a lesser included offense of assault by strangulation and the trial court properly denied a lesser-included-offense instruction. State v. Brunson, 187 N.C. App. 472, 653 S.E.2d 552, 2007 N.C. App. LEXIS 2421 (2007).

Trial court erred in entering judgment and conviction on the charge of assault by strangulation, when defendant was also convicted on the greater charge of assault with a deadly weapon with intent to kill inflicting serious injury, because in the absence of evidence that the assaults were in fact two separate actions — that is, in the absence of evidence of a distinct interruption in the assault — the evidence only supported a finding of a single assault, so that defendant could only have been convicted under the greater charge. State v. Prince, 271 N.C. App. 321, 843 S.E.2d 700, 2020 N.C. App. LEXIS 342 (2020), aff'd, 377 N.C. 198 , 856 S.E.2d 96, 2021- NCSC-40, 2021 N.C. LEXIS 323 (2021).

Complete Inability to Breathe Not Requirement. —

State was not required to prove that the victim had a complete inability to breathe in order to prove the elements of assault by strangulation. State v. Braxton, 183 N.C. App. 36, 643 S.E.2d 637, 2007 N.C. App. LEXIS 834 (2007).

Prosecution Under G.S. 14-32 and This Section Double Jeopardy. —

Defendant could not be convicted and sentenced for both assault with a deadly weapon with intent to kill inflicting serious injury, pursuant to G.S. 14-32(b), and assault inflicting serious bodily injury, G.S. 14-32.4 , for the same conduct without violating the double jeopardy provisions of the United States and North Carolina Constitutions. State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679, 2003 N.C. App. LEXIS 1418 (2003).

Trial court violated defendant’s right to be free of double jeopardy when it sentenced him for both assault with a deadly weapon inflicting serious injury under G.S. 14-32(b) and misdemeanor assault inflicting serious injury under G.S. 14-33(c)(1) based on an incident in which defendant punched his girlfriend into a wall and stabbed her multiple times in the arm and leg; because defendant’s convictions under G.S. 14-32(b) provided for greater punishment than G.S. 14-32.4 or G.S. 14-33(c), the trial court could not convict and sentence defendant under two statutes for the same conduct in each incident without violating the double jeopardy provisions of USCS Const. Amend. 5 and N. C. Const. Art. I, § 19. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863, 2005 N.C. App. LEXIS 2289 (2005).

Double jeopardy barred defendant’s G.S. 14-32.4(a) assault inflicting serious bodily injury (AISBI) conviction because (1) defendant was convicted of assault with a deadly weapon with the intent to kill and inflicting serious injury, which provided a greater punishment, and (2) G.S. 14-3.2(a) barred an AISBI conviction if defendant was also convicted of another offense, based on the same conduct, that provided a greater punishment. State v. Baldwin, 240 N.C. App. 413, 770 S.E.2d 167, 2015 N.C. App. LEXIS 277 (2015).

Appellate Review Limited by Jury Instruction. —

Review of whether there was substantial evidence of serious bodily injury was limited to the evidence presented at trial that supported the definition of serious bodily injury given to the jury. State v. Jamison, 234 N.C. App. 231, 758 S.E.2d 666, 2014 N.C. App. LEXIS 564 (2014).

Failure to Instruct on Consent Not Error. —

Trial court did not err when it declined to instruct the jury on consent because the absence of consent was not an element of assault, and thus not an element of assault inflicting serious bodily injury. State v. Russell, 271 N.C. App. 560, 844 S.E.2d 586, 2020 N.C. App. LEXIS 385 (2020).

Sentencing. —

The language in G.S. 14-32.4(b), unless the conduct was covered under some other provision of law providing greater punishment, was an indicator of legislative intent to prohibit a court from sentencing a defendant for the same conduct under both G.S. 14-32.4(b) and G.S. 14-32.4(a) because the former is a Class H felony and the latter is a Class F felony. State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412, 2009 N.C. App. LEXIS 2214 (2009).

Because the defendant was convicted and sentenced for both categories of assault, assault on a female and assault inflicting serious bodily injury, the trial court acted contrary to the statutory mandate of the assault on a female statute and the judgment was arrested on the assault of a female conviction. State v. Jamison, 234 N.C. App. 231, 758 S.E.2d 666, 2014 N.C. App. LEXIS 564 (2014).

Trial court erred in sentencing defendant for both assault inflicting serious bodily injury and assault with a deadly weapon, because this section prohibited punishment for the assault with a deadly weapon charge when the punishment for assault inflicting bodily injury was greater. State v. Coakley, 238 N.C. App. 480, 767 S.E.2d 418, 2014 N.C. App. LEXIS 1341 (2014).

Assault inflicting serious bodily injury (AISBI) under North Carolina law “typically” involved purposeful, violent, and aggressive behavior; accordingly, defendant’s prior AISBI conviction constituted a crime of violence under the residual clause of U.S. Sentencing Guidelines Manual § 4B1.2. United States v. Thompson, 874 F.3d 412, 2017 U.S. App. LEXIS 21518 (4th Cir. 2017), cert. denied, 138 S. Ct. 1179, 200 L. Ed. 2d 325, 2018 U.S. LEXIS 1385 (2018).

§ 14-33. Misdemeanor assaults, batteries, and affrays, simple and aggravated; punishments.

  1. Any person who commits a simple assault or a simple assault and battery or participates in a simple affray is guilty of a Class 2 misdemeanor.
  2. Unless his conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class 1 misdemeanor if, in the course of the assault, assault and battery, or affray, he:
    1. through (3) Repealed by Session Laws 1995, c. 507, s. 19.5(b);

      (4) through (7) Repealed by Session Laws 1991, c. 525, s. 1;

      (8) Repealed by Session Laws 1995, c. 507, s. 19.5(b);

      (9) Commits an assault and battery against a sports official when the sports official is discharging or attempting to discharge official duties at a sports event, or immediately after the sports event at which the sports official discharged official duties. A “sports official” is a person at a sports event who enforces the rules of the event, such as an umpire or referee, or a person who supervises the participants, such as a coach. A “sports event” includes any interscholastic or intramural athletic activity in a primary, middle, junior high, or high school, college, or university, any organized athletic activity sponsored by a community, business, or nonprofit organization, any athletic activity that is a professional or semiprofessional event, and any other organized athletic activity in the State.

  3. Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she:
    1. Inflicts serious injury upon another person or uses a deadly weapon;
    2. Assaults a female, he being a male person at least 18 years of age;
    3. Assaults a child under the age of 12 years;
    4. Assaults an officer or employee of the State or any political subdivision of the State, when the officer or employee is discharging or attempting to discharge his official duties;
    5. Repealed by Session Laws 1999-105, s. 1, effective December 1, 1999; or
    6. Assaults a school employee or school volunteer when the employee or volunteer is discharging or attempting to discharge his or her duties as an employee or volunteer, or assaults a school employee or school volunteer as a result of the discharge or attempt to discharge that individual’s duties as a school employee or school volunteer. For purposes of this subdivision, the following definitions shall apply:
      1. “Duties” means:
        1. All activities on school property;
        2. All activities, wherever occurring, during a school authorized event or the accompanying of students to or from that event; and
        3. All activities relating to the operation of school transportation.
      2. “Employee” or “volunteer” means:
        1. An employee of a local board of education; or a charter school authorized under G.S. 115C-218.5 , or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of Article 39 of Chapter 115C of the General Statutes;
        2. An independent contractor or an employee of an independent contractor of a local board of education, charter school authorized under G.S. 115C-218.5 , or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of Article 39 of Chapter 115C of the General Statutes, if the independent contractor carries out duties customarily performed by employees of the school; and
        3. An adult who volunteers his or her services or presence at any school activity and is under the supervision of an individual listed in sub-sub-subdivision 1. or 2. of this sub-subdivision.
    7. Assaults a public transit operator, including a public employee or a private contractor employed as a public transit operator, when the operator is discharging or attempting to discharge his or her duties.
    8. Assaults a company police officer certified pursuant to the provisions of Chapter 74E of the General Statutes or a campus police officer certified pursuant to the provisions of Chapter 74G, Article 1 of Chapter 17C, or Chapter 116 of the General Statutes in the performance of that person’s duties.
    9. Assaults a transportation network company (TNC) driver providing a transportation network company (TNC) service. For the purposes of this subdivision, the definitions for “TNC driver” and “TNC service” as defined in G.S. 20-280.1 shall apply. (c1) No school personnel as defined in G.S. 14-33(c)(6) who takes reasonable actions in good faith to end a fight or altercation between students shall incur any civil or criminal liability as the result of those actions.
  4. Any person who, in the course of an assault, assault and battery, or affray, inflicts serious injury upon another person, or uses a deadly weapon, in violation of subdivision (c)(1) of this section, on a person with whom the person has a personal relationship, and in the presence of a minor, is guilty of a Class A1 misdemeanor. A person convicted under this subsection, who is sentenced to a community punishment, shall be placed on supervised probation in addition to any other punishment imposed by the court.A person committing a second or subsequent violation of this subsection shall be sentenced to an active punishment of no less than 30 days in addition to any other punishment imposed by the court.The following definitions apply to this subsection:
    1. “Personal relationship” is as defined in G.S. 50B-1(b) .
    2. “In the presence of a minor” means that the minor was in a position to see or hear the assault.
    3. “Minor” is any person under the age of 18 years who is residing with or is under the care and supervision of, and who has a personal relationship with, the person assaulted or the person committing the assault.

History. 1870-1, c. 43, s. 2; 1873-4, c. 176, s. 6; 1879, c. 92, ss. 2, 6; Code, s. 987; Rev., s. 3620, 1911, c. 193; C.S., s. 4215; 1933, c. 189; 1949, c. 298; 1969, c. 618, s. 1; 1971, c. 765, s. 2; 1973, c. 229, s. 4; c. 1413; 1979, cc. 524, 656; 1981, c. 180; 1983, c. 175, ss. 6, 10; c. 720, s. 4; 1985, c. 321; 1991, c. 525, s. 1; 1993, c. 286, s. 1; c. 539, s. 16; 1994, Ex. Sess., c. 14, s. 3; c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 687, s. 1; 1995, c. 352, s. 1; 1995, c. 507, s. 19.5(b); 1999-105, s. 1; 2003-409, s. 1; 2004-26, s. 1; 2004-199, s. 7; 2005-231, s. 6.2; 2012-149, s. 1; 2014-101, s. 7; 2015-62, s. 4(b); 2019-194, s. 3.5(a).

Editor’s Note.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

Session Laws 2012-149 provides in its preamble: “Whereas, the General Assembly of North Carolina finds that a safe and civil environment in school is necessary in order for students to learn and achieve high academic standards; and

“Whereas, bullying and harassment, like other disruptive or violent behaviors, disrupt both a student’s ability to learn and a school’s ability to educate its students in a safe environment; and

“Whereas, bullying and harassing behaviors create a climate that fosters violence in our schools; and

“Whereas, it is essential to enact a law that seeks to protect the health and welfare of North Carolina students and improve the learning environment for North Carolina students; and

“Whereas, to do so, State and national data and anecdotal evidence have established the need to identify the most vulnerable targets and potential victims of bullying and harassment; and

“Whereas, the sole purpose of this law is to protect all children from bullying and harassment, and no other legislative purpose is intended nor should any other intent be construed from passage of this law; Now, therefore,”

Session Laws 2019-194, s. 1, provides: “This act shall be known as the ‘Passenger Protection Act’ and may be cited by that name.”

Session Laws 2019-194, s. 3.5(b), made subdivision (c)(9), as added by Session Laws 2019-194, s. 3.5(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2004-26, s. 1, effective December 1, 2004, and applicable to offenses committed on or after that date, added subdivision (c)(7).

Session Laws 2004-199, s. 7, effective August 17, 2004, inserted “is guilty of a Class A1 misdemeanor. A person convicted under this subsection, who is sentenced to a community punishment” in the first paragraph of subsection (d).

Session Laws, 2005-231, s. 6.2, effective July 28, 2005, added subdivision (c)(8).

Session Laws 2012-149, s. 1, effective July 12, 2012, added subsection (c1).

Session Laws 2014-101, s. 7, effective August 6, 2014, substituted “G.S. 115C-218.5” for “G.S. 115C-283.29D” throughout subdivision (c)(6). See Editor’s note for applicability.

Session Laws 2015-62, s. 4(b), effective December 1, 2015, substituted “see or hear” for “have observed” near the end of subdivision (d)(2). For applicability, see editor’s note.

Session Laws 2019-194, s. 3.5(a), added subdivision (c)(9). For effective date and applicability, see editor’s note.

Legal Periodicals.

For note as to the “show of violence” rule in North Carolina relative to an assault on a female, see 36 N.C.L. Rev. 198 (1958).

As to credit for time served under a vacated judgment upon retrial and second conviction, see 44 N.C.L. Rev. 458 (1966).

For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For article, “Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated,” see 66 N.C.L. Rev. 283 (1988).

CASE NOTES

Analysis

I.General Consideration

Statutory Construction. —

Plain language of the prefatory clause “unless the conduct is covered under some other provision of law providing greater punishment” reveals an intent by the General Assembly to limit a trial court’s authority to impose punishment for assault on a female when punishment is also imposed for higher class offenses that apply to the same conduct; the court agrees with this interpretation. State v. Jamison, 234 N.C. App. 231, 758 S.E.2d 666, 2014 N.C. App. LEXIS 564 (2014).

There is no statutory definition of assault in North Carolina, and the crime of assault is governed by common-law rules. State v. Roberts, 270 N.C. 655 , 155 S.E.2d 303, 1967 N.C. LEXIS 1400 (1967); State v. Hill, 6 N.C. App. 365, 170 S.E.2d 99, 1969 N.C. App. LEXIS 1187 (1969).

Common Law Definition. —

An assault is an intentional offer or attempt by force or violence to do injury to the person of another. State v. Thompson, 27 N.C. App. 576, 219 S.E.2d 566, 1975 N.C. App. LEXIS 1908 (1975), cert. denied, 289 N.C. 141 , 220 S.E.2d 800, 1976 N.C. LEXIS 1234 (1976).

An assault is a show of violence causing a reasonable apprehension of immediate bodily harm. State v. Thompson, 27 N.C. App. 576, 219 S.E.2d 566, 1975 N.C. App. LEXIS 1908 (1975), cert. denied, 289 N.C. 141 , 220 S.E.2d 800, 1976 N.C. LEXIS 1234 (1976).

The common-law offense of assault is an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm. State v. Sawyer, 29 N.C. App. 505, 225 S.E.2d 328, 1976 N.C. App. LEXIS 2552 (1976).

The word “assault” has been defined as an overt act or attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or violence must be sufficient to put a person of reasonable firmness in fear of immediate physical injury. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550, 1988 N.C. App. LEXIS 177 (1988).

Relationship to Federal Law. —

Because none of categories of assault under North Carolina law had elements matching elements of misdemeanor crime of domestic violence, district court properly dismissed indictment against defendant charging him with possession of firearm by prohibited person. United States v. Vinson, 805 F.3d 120, 2015 U.S. App. LEXIS 19169 (4th Cir. 2015).

Relationship to Other Laws. —

Based upon the application of principles of statutory construction, defendant could not have been separately convicted and punished for the offenses of both habitual misdemeanor assault, G.S. 14-33.2 , and felony assault inflicting serious bodily injury, G.S. 14-32.4(a), stemming from the same act where under the prefatory language of G.S. 14-33(c)(1), defendant’s conduct violated that statute, a necessary prerequisite for defendant’s guilt of G.S. 14-33.2 , only if his conduct was not covered under a separate provision of law providing greater punishment. Because G.S. 14-32.4(a) provided greater punishment for the act committed by defendant upon the victim, that act did not constitute a violation of G.S. 14-33(c)(1). State v. Fields, 374 N.C. 629 , 843 S.E.2d 186, 2020 N.C. LEXIS 504 (2020).

Battery Defined. —

A battery is the offensive touching of the person of another without his or her consent. City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430, 1998 N.C. App. LEXIS 914 (1998).

Definitions of Assault Necessary. —

Because a definition of assault was necessary for the jury to reach a verdict on the charge of assault on a law enforcement officer, the omission of the definition of assault in the jury instructions was prejudicial error. State v. Lineberger, 115 N.C. App. 687, 446 S.E.2d 375, 1994 N.C. App. LEXIS 769 (1994).

Statutory Mandate Disregarded. —

Because the defendant was convicted and sentenced for both categories of assault, assault on a female and assault inflicting serious bodily injury, the trial court acted contrary to the statutory mandate of the assault on a female statute and the judgment was arrested on the assault of a female conviction. State v. Jamison, 234 N.C. App. 231, 758 S.E.2d 666, 2014 N.C. App. LEXIS 564 (2014).

“Show of Violence” Rule. —

In some cases of assault, North Carolina has adopted the “show of violence” rule which requires a reasonable apprehension on the part of the assailed witness of immediate bodily harm or injury which caused him to engage in a course of conduct he would not have otherwise followed. State v. Sawyer, 28 N.C. App. 490, 221 S.E.2d 518, 1976 N.C. App. LEXIS 2739 (1976).

A criminal assault may be proven under the “show of violence” rule by evidence of apprehension of harm on the part of the person or persons assailed. State v. Messick, 88 N.C. App. 428, 363 S.E.2d 657, 1988 N.C. App. LEXIS 37 , cert. denied, 323 N.C. 368 , 373 S.E.2d 553, 1988 N.C. LEXIS 678 (1988).

Proof of Actual Apprehension Not Required. —

While the civil tort of assault requires proof of actual apprehension of harmful contact on the part of the victim, criminal assault does not require proof of actual apprehension, so long as there is evidence of some overt act sufficient to put a person of reasonable firmness in apprehension of immediate bodily harm. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76, 1986 N.C. App. LEXIS 2143 (1986), rev'd in part, 318 N.C. 669 , 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987).

Where evidence discloses actual battery, whether victim is “put in fear” is inapposite. State v. Thompson, 27 N.C. App. 576, 219 S.E.2d 566, 1975 N.C. App. LEXIS 1908 (1975), cert. denied, 289 N.C. 141 , 220 S.E.2d 800, 1976 N.C. LEXIS 1234 (1976).

Emphasis Either on Intent of Accused or Apprehension of Victim. —

In this State a criminal assault may be accomplished either by an overt act on the part of the accused evidencing an intentional offer or attempt by force and violence to do injury to the person of another or by the “show of violence” on the part of the accused sufficient to cause a reasonable apprehension of immediate bodily harm on the part of the person assailed which causes him to engage in a course of conduct which he would not otherwise have followed. Thus, either or both of two rules may be applied in prosecuting a person accused of an assault. The first places emphasis on the intent or state of mind of the person accused. Under the second, which is sometimes referred to as the “show of violence” rule, emphasis is shifted to a consideration of the apprehension of the person assailed and the reasonableness of that apprehension. State v. O'Briant, 43 N.C. App. 341, 258 S.E.2d 839, 1979 N.C. App. LEXIS 3059 (1979).

Implied Intent. —

Even though intent is an essential element of criminal assault, the intent may be implied from culpable or criminal negligence if the injury or apprehension thereof is the direct result of intentional acts done under circumstances which show a reckless disregard for the safety of others and a willingness to inflict injury. State v. Davis, 68 N.C. App. 238, 314 S.E.2d 828, 1984 N.C. App. LEXIS 3194 (1984).

Intent is not a prescribed element of assault with a deadly weapon. See State v. Currie, 19 N.C. App. 17, 198 S.E.2d 28, 1973 N.C. App. LEXIS 1555 (1973); State v. Messick, 88 N.C. App. 428, 363 S.E.2d 657, 1988 N.C. App. LEXIS 37 , cert. denied, 323 N.C. 368 , 373 S.E.2d 553, 1988 N.C. LEXIS 678 (1988).

Ignorance of Number of Occupants in Vehicle Immaterial. —

Where defendant’s “show of violence” by firing at car placed both occupants in fear of immediate harm, defendant’s ignorance regarding the number of occupants in the car was immaterial, since his actions were sufficient to constitute an assault with a deadly weapon on both occupants. Therefore, the trial court properly refused to dismiss one of the assault charges. State v. Messick, 88 N.C. App. 428, 363 S.E.2d 657, 1988 N.C. App. LEXIS 37 , cert. denied, 323 N.C. 368 , 373 S.E.2d 553, 1988 N.C. LEXIS 678 (1988).

Requirements of Indictment. —

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4 (a), he unsuccessfully argued that the indictments charging him with violating G.S. 14-33(c)(4) and G.S. 14-258.4 had to meet the same requirements as one charging a person with the offense of resisting, delaying, or obstructing an officer under G.S. 14-223 . While an indictment alleging a violation of G.S. 14-223 had to describe the duty the named officer was discharging or attempting to discharge, because the specific duty that an officer was attempting to discharge was not an essential element of G.S. 14-33(c)(4) or G.S. 14-258.4, the duty the officer was attempting to discharge did not have to described in the indictments. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

Indictment Need Not Allege That Accused Was Male Person over 18. —

Since it is not an essential element of the criminal offense under this section, it is not required that the indictment allege that the defendant was a male person over 18 years of age at the time of the alleged assault. State v. Smith, 157 N.C. 578 , 72 S.E. 853, 1911 N.C. LEXIS 100 (1911); State v. Jones, 181 N.C. 546 , 106 S.E. 817, 1921 N.C. LEXIS 143 (1921); State v. Lefler, 202 N.C. 700 , 163 S.E. 873, 1932 N.C. LEXIS 193 (1932); State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958).

Preliminaries to Consensual Intercourse Not Assault. —

Although defendant’s wrestling, kissing, and pressing himself against another without that other’s consent may constitute assault, when such acts are merely the preliminaries to consensual sexual intercourse they can hardly suffice as an overt act of force and violence to do harm to another sufficient to put a reasonable person in fear of bodily harm. State v. Jeffries, 57 N.C. App. 416, 291 S.E.2d 859, 1982 N.C. App. LEXIS 2678 (1982).

An affray is defined by the common law as a fight between two or more persons in a public place so as to cause terror to the people. In re Drakeford, 32 N.C. App. 113, 230 S.E.2d 779, 1977 N.C. App. LEXIS 1864 (1977).

Court held that juvenile could not be adjudicated delinquent for violating G.S. 14-33(a) by engaging in a simple affray as the fight occurred on private property. In re May, 153 N.C. App. 299, 569 S.E.2d 704, 2002 N.C. App. LEXIS 1130 (2002), aff'd, 357 N.C. 423 , 584 S.E.2d 271, 2003 N.C. LEXIS 833 (2003).

Instruction on Adequate Provocation. —

Although instruction on adequate provocation included a reference to assault, the trial judge’s instruction on adequate provocation did not require an additional instruction on the definition of assault. State v. Martin, 97 N.C. App. 604, 389 S.E.2d 414, 1990 N.C. App. LEXIS 221 (1990).

When Use of Force Justified. —

One without fault in provoking or continuing an assault is privileged to use such force as is reasonably necessary to protect himself from bodily harm or offensive physical contact. State v. Grant, 57 N.C. App. 589, 291 S.E.2d 913, 1982 N.C. App. LEXIS 2688 (1982).

When Deadly Force May Be Used to Repel Assault. —

Although a defendant need not submit in meekness to indignities or violence to his person merely because the affront does not threaten death or great bodily harm, he may not resort to the use of deadly force to protect himself from mere bodily harm or offensive physical contact. The use of deadly force to prevent harm other than death or great bodily harm is therefore excessive as a matter of law. State v. Hunter, 315 N.C. 371 , 338 S.E.2d 99, 1986 N.C. LEXIS 1871 (1986).

When Failure to Instruct on Self-Defense Erroneous. —

If defendant’s evidence, even though contradicted by the State, raises the issue of self-defense, it is error for the court not to charge on the defense. State v. Grant, 57 N.C. App. 589, 291 S.E.2d 913, 1982 N.C. App. LEXIS 2688 (1982).

When Instruction on Justification Improper. —

Where there is no evidence from which a jury could find that defendant reasonably believed himself in need of protection, it would be improper for the court to instruct on justification. State v. Grant, 57 N.C. App. 589, 291 S.E.2d 913, 1982 N.C. App. LEXIS 2688 (1982).

Defendant Not Entitled to Simple Assault Instruction. —

Defendant was not entitled to a simple assault instruction because: (1) the evidence showed defendant acted in concert with others to seriously injure the victim, and (2) defendant’s denial and the equivocal testimony of another perpetrator that that perpetrator did not see defendant strike the victim were insufficient to allow a jury to rationally find simple assault. State v. Rowe, 231 N.C. App. 462, 752 S.E.2d 223, 2013 N.C. App. LEXIS 1308 (2013).

Failure to Dismiss Charge Held Error. —

The affray charge upon which respondent juvenile was convicted had as an essential element the assault charge which had been dismissed for lack of evidence. Consequently, respondent’s acquittal on the assault charge barred further petitions based on that charge. Therefore, respondent was twice put in jeopardy for the same offense under G.S. 14-33 and the trial judge erred in failing to dismiss the petition. In re Drakeford, 32 N.C. App. 113, 230 S.E.2d 779, 1977 N.C. App. LEXIS 1864 (1977).

Because the arrest warrant failed to charge defendant with the commission of a simple assault, G.S. 14-33(a), the trial court erred in failing to dismiss the charge as stated in the criminal pleading and the appellate court vacated defendant’s conviction for assault. State v. Garcia, 146 N.C. App. 745, 553 S.E.2d 914, 2001 N.C. App. LEXIS 1076 (2001).

Career Offenders. —

For career offender purposes under federal statute, the date the prior conviction was sustained should control, not the date of later sentencing; thus, defendant was properly determined to be a career offender under federal statute where prior felony offense had been amended to become a misdemeanor. United States v. Johnson, 114 F.3d 435, 1997 U.S. App. LEXIS 11938 (4th Cir. 1997), cert. denied, 522 U.S. 903, 118 S. Ct. 257, 139 L. Ed. 2d 184, 1997 U.S. LEXIS 5958 (1997), dismissed, 2018 U.S. Dist. LEXIS 195034 (W.D.N.C. Nov. 15, 2018).

Juvenile Delinquency Adjudication. —

It was error for the court of appeals to vacate a juvenile’s delinquency adjudication based on a sexual battery charge on the grounds that a juvenile court counselor (JCC) did not comply with the timelines contained in G.S. 7B-1703 , when the JCC had filed a petition alleging the juvenile committed simple assault and then filed a second petition, based on the same incident, alleging the juvenile committed sexual battery, on the grounds that the alleged failure to comply with these timelines deprived the trial court of subject matter jurisdiction, because the legislature did not intend G.S. 7B-1703 ’s timing requirements to be jurisdictional, as the legislature did not mention jurisdiction in the statute or state a JCC’s failure to meet the statutory timing requirements divested a court of subject matter jurisdiction. In re D.S., 364 N.C. 184 , 694 S.E.2d 758, 2010 N.C. LEXIS 434 (2010).

Trial Court Erred in Entering Judgment and Sentencing Defendant for Habitual Misdemeanor Assault. —

Because the jury returned a verdict finding defendant guilty of felony assault inflicting serious bodily injury, the trial court erred in entering judgment and sentencing defendant for habitual misdemeanor assault predicated on misdemeanor assault inflicting serious injury arising from the same conduct. State v. Fields, 265 N.C. App. 69, 827 S.E.2d 120, 2019 N.C. App. LEXIS 333 (2019), modified, aff'd, 374 N.C. 629 , 843 S.E.2d 186, 2020 N.C. LEXIS 504 (2020).

II.Other Crimes

Assault with Deadly Weapon an Included Offense Under G.S. 14-32 . —

Assault with a deadly weapon is an essential element of the felony created and defined by G.S. 14-32 , being an included “less degree of the same crime.” State v. Weaver, 264 N.C. 681 , 142 S.E.2d 633, 1965 N.C. LEXIS 1260 (1965); State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

Assault with a deadly weapon, which is a misdemeanor under subdivision (b)(1) of this section, is a lesser included offense of the felonies described in G.S. 14-32 . However, the necessity for instructing the jury as to an included crime of lesser degree than that charged arises when, and only when, there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor. State v. Williams, 31 N.C. App. 111, 228 S.E.2d 668, 1976 N.C. App. LEXIS 1916 , cert. denied, 291 N.C. 450 , 230 S.E.2d 767, 1976 N.C. LEXIS 1015 (1976).

Assault on Government Employee. —

Assault on a government employee was a class A1 misdemeanor; a trial court possessed the discretion to enter a delinquency Level 3 based on a juvenile adjudication of assault on a government employee, and the juvenile’s “high” prior delinquency history. In re D.A.S., 183 N.C. App. 107, 643 S.E.2d 660, 2007 N.C. App. LEXIS 828 (2007).

Felonious Assault Compared. —

The primary distinction between felonious assault under G.S. 14-32 and misdemeanor assault under this section is that a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted, while if the evidence shows that only one of the two elements was present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

Misdemeanor Assault Inflicting Serious Injury. —

Where the appellate court found sufficient evidence from which the jury could believe that fists and a commode lid were not used as deadly weapons but did inflict serious injury on victim, the trial court was required to give the instruction on the lesser included offense of misdemeanor assault inflicting serious injury. State v. Lowe, 150 N.C. App. 682, 564 S.E.2d 313, 2002 N.C. App. LEXIS 651 (2002).

Trial court did not err in refusing to instruct the jury on misdemeanor assault inflicting serious injury under G.S. 14-33(c)(1) as a lesser included offense of assault with a deadly weapon with intent to kill inflicting serious injury under G.S. 14-32 as the instrument used to assault a driver was a rock which, when thrown at the driver’s side windshield of the car being driven at about 55 or 60 miles per hour was large enough to shatter the windshield, bend the steering wheel, and fracture the driver’s skull; based on the size of the rock and the manner in which it was used, the rock could only have been a deadly weapon. State v. Liggons, 194 N.C. App. 734, 670 S.E.2d 333, 2009 N.C. App. LEXIS 1 (2009).

The allegation in a warrant that defendant assaulted his wife “by threatening to kill her” fell short of charging that he acted with the specific intent to kill required to make the offense a felony under G.S. 14-32 ; the offense charged was a misdemeanor under this section. State v. Harris, 14 N.C. App. 268, 188 S.E.2d 1, 1972 N.C. App. LEXIS 2102 (1972).

Submission of Lesser Offense Only Where All Evidence Shows Felonious Assault. —

In a prosecution for two offenses of assault with a deadly weapon with intent to kill inflicting serious injury wherein all the evidence showed that a deadly weapon was used in both assaults and that serious injury was inflicted on both victims, the trial court erred (1) in failing to submit defendant’s guilt or innocence of assault with a deadly weapon inflicting serious injury, and (2) in submitting the misdemeanors of assault inflicting serious injury and assault with a deadly weapon. State v. Thacker, 281 N.C. 447 , 189 S.E.2d 145, 1972 N.C. LEXIS 1085 (1972), disapproved, North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286, 1979 U.S. LEXIS 91 (1979).

Any party charged with an affray may be charged with the lesser included offense of an assault. In re Drakeford, 32 N.C. App. 113, 230 S.E.2d 779, 1977 N.C. App. LEXIS 1864 (1977).

Crime of Armed Robbery Includes Assault with Deadly Weapon. —

The crime of armed robbery defined in G.S. 14-87 includes an assault on the person with a deadly weapon. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971).

Assault with a deadly weapon is not a lesser included offense of attempted armed robbery. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550, 1988 N.C. App. LEXIS 177 (1988).

Convictions of Armed Robbery and Assault with Deadly Weapon Arising Out of Same Conduct. —

If a person is convicted simultaneously of armed robbery and of the lesser included offense of assault with a deadly weapon, and both offenses arise out of the same conduct, and separate judgments are pronounced, the judgment on the separate verdict of guilty of assault with a deadly weapon must be arrested, because in such case the armed robbery is accomplished by the assault with a deadly weapon and all essentials of this assault charge are essentials of the armed robbery charge. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971).

Since discharging a firearm into an occupied vehicle is not essential to support an assault with a deadly weapon, and an assault on a person is not an essential element of discharging a firearm into an occupied vehicle, defendant was not placed in double jeopardy by receiving convictions for both offenses. State v. Messick, 88 N.C. App. 428, 363 S.E.2d 657, 1988 N.C. App. LEXIS 37 , cert. denied, 323 N.C. 368 , 373 S.E.2d 553, 1988 N.C. LEXIS 678 (1988).

Assault on a female is not a lesser included offense of rape, because assault on a female contains elements not present in the greater offense of rape. State v. Herring, 322 N.C. 733 , 370 S.E.2d 363, 1988 N.C. LEXIS 480 (1988).

Assault is not a lesser included offense of attempted rape. State v. Robinson, 97 N.C. App. 597, 389 S.E.2d 417, 1990 N.C. App. LEXIS 384 (1990).

Simple assault is a lesser included offense of assault with intent to commit rape. State v. Little, 51 N.C. App. 64, 275 S.E.2d 249, 1981 N.C. App. LEXIS 2191 (1981).

When Assault Not Lesser Included Offense of Rape. —

Where evidence showed that defendant hit victim while having intercourse with her, and in its proof of second-degree rape, the State did not need to rely on this evidence of defendant’s blow, since there was ample evidence that he had used other forceful measures to subdue her and subject her to intercourse against her will, the evidence revealed two distinct offenses involving distinct occurrences, and was not of a greater offense and lesser included offense. State v. Jeffries, 57 N.C. App. 416, 291 S.E.2d 859, 1982 N.C. App. LEXIS 2678 (1982).

When Assault May Be Withdrawn from Consideration in Rape Trial. —

Where under the evidence the jury could not reasonably find that defendant’s intercourse with female was consensual and therefore that he did not commit the offense of second degree rape as charged in the indictment, but that he did commit the lesser included offense of assault on a female, it was not error to withdraw the lesser included offense from the jury’s consideration. State v. Jeffries, 57 N.C. App. 416, 291 S.E.2d 859, 1982 N.C. App. LEXIS 2678 (1982).

Assault on Female by Male over Age 18 Not Included in Statutory Rape. —

The offense of assault on a female by a male over the age of 18, subdivision (b)(2) of this section, is not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less, under G.S. 14-27.2(a)(1). State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

Nor Is Assault on Child Under Age 12 Included. —

The offense of assaulting a child under the age of 12, subdivision (b)(3), of this section, is not, as a matter of law, a lesser included offense of first-degree rape of a child of the age of 12 or less, under G.S. 14-27.2(a)(1). State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

One is guilty of a misdemeanor assault under subdivision (b)(3) of this section if he assaults a child under the age of 12 years. This crime has an essential element, an assault, which is not also an essential element of the crime of first-degree rape of a child of the age of 12 years or less. Section 14-27.2(a)(1) provides that a person is guilty of first-degree rape only if he “engages in vaginal intercourse” with the young victim; no concomitant assault is required. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

Vaginal intercourse with a child under 12 is not itself an assault, since the crime of assault has essential elements which are not also essential elements of statutory rape. For example, assault generally requires proof of state of mind of either the defendant or the victim — the defendant’s intent to do immediate bodily harm or the victim’s reasonable apprehension of such harm. The statutory rape law, G.S. 14-27.2(a)(1), does not contain a state of mind element, however. Assault on a child under 12, subdivision (b)(3) of this section, is not, therefore, a lesser included offense of first-degree rape of a child under 12, G.S. 14-27.2(a)(1). State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982).

In a prosecution of a defendant for assault with intent to commit rape, nonsuit of the felony does not entitle the defendant to his discharge, but the State may put defendant on trial under the same indictment for assault on a female, defendant being a male over the age of 18. State v. Gammons, 260 N.C. 753 , 133 S.E.2d 649, 1963 N.C. LEXIS 796 (1963); State v. Walker, 4 N.C. App. 478, 167 S.E.2d 18, 1969 N.C. App. LEXIS 1524 (1969).

Assault on a female is not a lesser included offense of attempted second-degree rape, because the assault offense contains essential elements which are not contained in the attempted rape offense. State v. Wortham, 318 N.C. 669 , 351 S.E.2d 294 (1987) disapproving State v. Freeman, 307 N.C. 445 , 298 S.E.2d 376 (1983) insofar as the result in Freeman in the assault on a female conviction conflicts with this decision State v. Bagley, 321 N.C. 201 , 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510 (1969).

Nor of First-Degree Sexual Offense. —

To convict for first-degree sexual offense, it need not be shown that the victim is a female, that the defendant is a male, or that the defendant is at least 18 years of age. Therefore, the crime of assault on a female has at least three elements not included in the crime of first-degree sexual offense and cannot be a lesser included offense of first-degree sexual offense. State v. Bagley, 321 N.C. 201 , 362 S.E.2d 244, 1987 N.C. LEXIS 2554 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 912, 1988 U.S. LEXIS 2005 (1988).

Assault Not Lesser Included Offense of Taking Indecent Liberties with Child. —

Since assault is not an essential element of taking indecent liberties with a child, the crime of assault on a child under the age of 12 years cannot be a lesser included offense of taking indecent liberties with a child. State v. Holman, 94 N.C. App. 361, 380 S.E.2d 128, 1989 N.C. App. LEXIS 468 (1989).

Failure to Submit Question of Guilt of Simple Assault. —

Where in a prosecution for assault with a deadly weapon the evidence tended to show assault on a female at least, it was not error to fail to submit the question of guilt of simple assault. State v. Hill, 6 N.C. App. 365, 170 S.E.2d 99, 1969 N.C. App. LEXIS 1187 (1969); State v. Barnhill, 37 N.C. App. 612, 246 S.E.2d 579, 1978 N.C. App. LEXIS 2813 (1978); State v. Patton, 302 N.C. App. 80, 341 S.E.2d 744 (1986).

Defendant Not Entitled to Jury Instruction on Simple Assault. —

Defendant was not entitled to a jury instruction on simple assault as a lesser included offense of aggravated assault with a deadly weapon, because there was substantial evidence that the victim suffered serious injury caused by defendant and thus, the evidence did not support such an instruction. State v. Hope, 223 N.C. App. 468, 737 S.E.2d 108, 2012 N.C. App. LEXIS 1306 (2012).

Failure to Instruct as to Lesser Offense Held Not Error. —

Since the evidence that defendant used a deadly weapon was uncontradicted, he was not entitled to a charge on assault inflicting serious injury. State v. Springs, 33 N.C. App. 61, 234 S.E.2d 193, 1977 N.C. App. LEXIS 2098 (1977).

Where the only dispute in a rape prosecution is whether an admitted act of sexual intercourse was accomplished by consent or by force, the lesser included offenses of assault with intent to commit rape and assault upon a female need not be submitted to the jury, because lesser included offenses must be submitted only where there is evidence to support them. State v. Edmondson, 302 N.C. 169 , 273 S.E.2d 659, 1981 N.C. LEXIS 1028 (1981).

Where there was no dispute that defendant, who was charged with felonious assault with a deadly weapon inflicting serious injury, used a “deadly weapon,” to cause the victim’s injuries, or that those injuries were serious, he was not entitled to an instruction on the lesser included offense of misdemeanor assault. State v. Uvalle, 151 N.C. App. 446, 565 S.E.2d 727, 2002 N.C. App. LEXIS 752 (2002).

Use of Conviction in Another Jurisdiction. —

Trial court erred in sentencing defendant as a level IV offender on his conviction of second-degree murder, as the trial court erred in finding that a prior New York conviction of N.Y. Penal Law § 120.05 was substantially similar to North Carolina’s offense of simple assault set forth in G.S. 14-33(a), as the North Carolina offense required serious injury to the victim and the New York offense did not; furthermore, under G.S. 14-2.5 , an attempt to commit a misdemeanor or a felony is punishable under the next lower classification as the offense the offender attempted to commit, and defendant’s prior New York conviction for attempted second-degree assault should have been treated as a class 3 misdemeanor, which would have not had any point value for prior record purposes. State v. Hanton, 175 N.C. App. 250, 623 S.E.2d 600, 2006 N.C. App. LEXIS 45 (2006).

III.Infliction of Serious Injury

Conviction of misdemeanor assault requires proof of infliction of or attempt to inflict serious injury, while conviction of common-law robbery does not. State v. Malloy, 53 N.C. App. 369, 280 S.E.2d 640, 1981 N.C. App. LEXIS 2594 (1981).

Evidence Insufficient to Show Felony Child Abuse but Sufficient for Misdemeanor Assault Charge. —

Remand for re-sentencing on felony child abuse inflicting serious physical injury was improper because the indictment failed to allege an essential element required for proof of that crime: that injury be inflicted by a parent or any other person providing care to or supervision of a child less than 16 years of age; however, the indictment and jury verdict did support a conviction for class A1 misdemeanor assault. State v. Locklear, 178 N.C. App. 732, 632 S.E.2d 516, 2006 N.C. App. LEXIS 1641 (2006), vacated, 361 N.C. 700 , 654 S.E.2d 704, 2007 N.C. LEXIS 1117 (2007), vacated in part, 361 N.C. 688 , 2007 N.C. LEXIS 1462 (2007).

Serious Injury Shown. —

Evidence that defendant struck eight-year-old daughter on the buttocks with a board multiple times while disciplining her and that the blows caused a large bruise that was crusted around the outside, had a spot near the middle that was open and oozing, and was painful to the touch was sufficient for a jury to reasonably infer that defendant caused great pain and suffering, and any error which occurred because the trial court allowed the jury to consider defendant’s guilt or innocence on the charge of felonious assault inflicting serious bodily injury was rendered harmless by the jury’s verdict finding defendant not guilty of that charge but guilty of the lesser included offense of misdemeanor assault inflicting serious injury, in violation of G.S. 14-33(c)(1). State v. Williams, 154 N.C. App. 176, 571 S.E.2d 619, 2002 N.C. App. LEXIS 1397 (2002).

Defendant’s motion to dismiss a charge of assault inflicting serious injury was properly denied because sufficient evidence showed defendant acted “in concert” with others who admittedly inflicted serious injury on the victim, as defendant and another kicked the victim for several minutes while a third perpetrator hit the victim in the head with a golf club. State v. Rowe, 231 N.C. App. 462, 752 S.E.2d 223, 2013 N.C. App. LEXIS 1308 (2013).

Serious damage includes serious physical injury. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962).

But May Include Damage Other Than Bodily Injury. —

Serious damage may include damage other than bodily injury. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962).

And Does Not Necessarily Involve Use of Deadly Weapon. —

The term serious damage done embraces results other than those arising from the use of a deadly weapon. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962).

Factors the courts consider in determining if an injury is serious include pain, loss of blood, hospitalization and time lost from work. State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494, 1983 N.C. App. LEXIS 3389 (1983).

IV.Use of Deadly Weapon

A deadly weapon is any instrument which is likely to produce death or great bodily harm, and the deadly character of the weapon depends sometimes more upon the manner of its use, and the condition of the person assaulted, than upon the intrinsic character of the weapon itself. State v. Palmer, 293 N.C. 633 , 239 S.E.2d 406, 1977 N.C. LEXIS 1012 (1977).

May Be Question of Fact For Jury. —

Where the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly is one of law, and the court must take the responsibility of so declaring. But where it may or may not be likely to produce fatal results, according to the manner of its use or the part of the body at which the blow is aimed, its alleged deadly character is one of fact to be determined by the jury. State v. Palmer, 293 N.C. 633 , 239 S.E.2d 406, 1977 N.C. LEXIS 1012 (1977).

Under circumstances in which a trial court correctly found that the issue of whether a two-by-four board used to beat the victim was a deadly weapon was for the jury to determine, the trial court should have instructed the jury on the lesser included offense of assault inflicting serious injury, and the failure to do so constituted reversible error. State v. Tillery, 186 N.C. App. 447, 651 S.E.2d 291, 2007 N.C. App. LEXIS 2204 (2007).

Sufficiency of Indictment. —

It is sufficient for indictments or warrants seeking to charge a crime in which one of the elements is the use of a deadly weapon (1) to name the weapon and (2) either to state expressly that the weapon used was a “deadly weapon” or to allege such facts as would necessarily demonstrate the deadly character of the weapon. State v. Palmer, 293 N.C. 633 , 239 S.E.2d 406, 1977 N.C. LEXIS 1012 (1977).

Assault with Deadly Weapon with Ethnic Animosity. —

In a case in which defendant appealed his conviction for assault with a deadly weapon with ethnic animosity, he unsuccessfully argued that the statute under which he was charged could not apply to the facts presented at trial because both he and the victim were of the same race. The victim was white and he was having a relationship with a black female, and, had he been black, defendant might not have shot at him. State v. Brown, 202 N.C. App. 499, 689 S.E.2d 210, 2010 N.C. App. LEXIS 276 (2010).

A criminal assault may be committed with an automobile. State v. Sawyer, 28 N.C. App. 490, 221 S.E.2d 518, 1976 N.C. App. LEXIS 2739 (1976).

Defendant was not entitled to a jury instruction on the lesser offense of misdemeanor assault on a government official under G.S. 14-33(c)(4) because defendant used a deadly weapon — his car — when he drove into a deputy’s car; thus the evidence only supported the charge of felony assault on a government official under G.S. 14-34.2 . State v. Batchelor, 167 N.C. App. 797, 606 S.E.2d 422, 2005 N.C. App. LEXIS 9 (2005).

Involuntary Commitment. —

Trial court did not err by conducting a fact-based analysis in determining whether defendant was charged with a violent crime under G.S. 15A-1003(a) or in concluding that defendant was charged with a violent crime because although violence was not an element of the offenses for which he was charged, possession of a firearm by a felon, G.S. 14-415.1 , and resisting an officer, G.S. 14-223 , an assault with a deadly weapon in violation of G.S. 14-33(c)(1) was involved in the commission of the crime of resisting an officer. In re Murdock, 222 N.C. App. 45, 730 S.E.2d 811, 2012 N.C. App. LEXIS 947 (2012).

Evidence Held Sufficient. —

The intentional firing of a high-powered rifle into or near a home, frightening the inmates and causing them to seek safety in the back of the house, would be sufficient evidence to make out a case of assault with a deadly weapon. State v. Blizzard, 280 N.C. 11 , 184 S.E.2d 851, 1971 N.C. LEXIS 1086 (1971).

V.Assaults on Females

Misdemeanor Crime of Domestic Violence Under Federal Law. —

Defendant’s prior conviction for assault on a female qualified as a misdemeanor crime of domestic violence under 18 U.S.C.S. § 921, causing defendant to be a person prohibited from possessing a firearm under 18 U.S.C.S. § 922; North Carolina’s different formulations of assault were alternative elements of the offense, so the offense of assault on a female was divisible, and defendant’s conviction of the completed-battery form of assault was a misdemeanor crime of domestic violence. United States v. Vinson, 794 F.3d 418, 2015 U.S. App. LEXIS 12560 (4th Cir. 2015).

Subdivision (b)(2) of this section establishes classifications by gender which serve important governmental objectives and are substantially related to achievement of those objectives. Therefore, the statute does not deny males equal protection of law in violation of the Fourteenth Amendment to the Constitution of the United States.State v. Gurganus, 39 N.C. App. 395, 250 S.E.2d 668, 1979 N.C. App. LEXIS 2512 (1979).

The General Assembly was entitled to take note of the differing physical sizes and strengths of the sexes, and reasonably to conclude that assaults and batteries without deadly weapons by physically larger and stronger males are likely to cause greater physical injury and risk of death than similar assaults by females. Having so concluded, the General Assembly could choose to provide greater punishment for these offenses, which it found created greater danger to life and limb, without violating the Fourteenth Amendment. State v. Gurganus, 39 N.C. App. 395, 250 S.E.2d 668, 1979 N.C. App. LEXIS 2512 (1979).

Victims Need Not Be Under 12 Years of Age Under G.S. 14-33(c)(2). —

Defendant’s claim that G.S. 14-33(c) was intended to be limited to victims less than 12 years old was rejected, as even though G.S. 14-33(c)(3) required that victims be less than 12 years old, nothing in G.S. 14-33(c)(2), the section under which defendant was convicted, required the female victim to be under a certain age; the only elements required for an assault under G.S. 14-33(c)(2) were that the victim be a female, and that the perpetrator be a male who was at least 18 years old. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

The 1911 amendment to this section was not intended to create a separate and distinct offense in law, to be known as an assault and battery by a man, or boy over 18 years of age, upon a woman, for it was always a crime for a man, or a boy over 18 years of age, to assault a woman. State v. Smith, 157 N.C. 578 , 72 S.E. 853, 1911 N.C. LEXIS 100 (1911); State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958).

The essential elements of the crime of assault upon a female are (1) assault and (2) upon a female person by a male person. State v. Craig, 35 N.C. App. 547, 241 S.E.2d 704, 1978 N.C. App. LEXIS 3023 (1978); State v. Rushing, 61 N.C. App. 62, 300 S.E.2d 445, 1983 N.C. App. LEXIS 2575 , aff'd, 308 N.C. 804 , 303 S.E.2d 822, 1983 N.C. LEXIS 1305 (1983); State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76, 1986 N.C. App. LEXIS 2143 (1986), rev'd in part, 318 N.C. 669 , 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987).

Murder Indictment Not Containing All Elements of Assault upon Female. —

Because an indictment for murder did not contain allegations to include the necessary elements of the crime of assault upon a female, the indictment did not support the verdict of guilty of assault upon a female. State v. Craig, 35 N.C. App. 547, 241 S.E.2d 704, 1978 N.C. App. LEXIS 3023 (1978).

The marital relationship does not afford a license to commit assault. State v. Sherron, 4 N.C. App. 386, 166 S.E.2d 836, 1969 N.C. App. LEXIS 1502 (1969).

Assault is a requisite element of assault on a female, and is defined as an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm. State v. Jeffries, 57 N.C. App. 416, 291 S.E.2d 859, 1982 N.C. App. LEXIS 2678 (1982).

Fact that defendant is a male person need not be alleged specifically when the indictment charges a rape or related offense, since defendant’s sex may be assumed from the nature of the offense charged. State v. Rick, 54 N.C. App. 104, 282 S.E.2d 497, 1981 N.C. App. LEXIS 2808 (1981).

The classifications based upon age found in subdivision (b)(2) of this section do not violate the Fourteenth Amendment. State v. Gurganus, 39 N.C. App. 395, 250 S.E.2d 668, 1979 N.C. App. LEXIS 2512 (1979).

Defendant’s Age Not Essential Element of Crime. —

Although this section prescribes a greater punishment if defendant is over 18 years of age, defendant’s age is not an essential element of the crime of assault upon a female and need not be alleged. State v. Rick, 54 N.C. App. 104, 282 S.E.2d 497, 1981 N.C. App. LEXIS 2808 (1981); State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76, 1986 N.C. App. LEXIS 2143 (1986), rev'd in part, 318 N.C. 669 , 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987).

It was not necessary for the defendant’s age to be stated in the bill of indictment to convict him for an assault on a female, when the proof clearly showed that he was over 18 at the time of the alleged assault, and on the trial no question was made as to that fact. State v. Beam, 255 N.C. 347 , 121 S.E.2d 558, 1961 N.C. LEXIS 590 (1961).

Age a Collateral Matter — How Determined. —

Whether defendant was over 18 years of age is a collateral matter, wholly independent of defendant’s guilt or innocence in respect of the assault charged; and it would seem appropriate that his age be determined under a special issue. Unless the necessity therefor is eliminated by defendant’s admission, this issue must be resolved by a jury, not by a court. State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958).

Presumption That Accused Is over 18. —

Where a male defendant is charged with an assault upon a female there is a rebuttable presumption that defendant is over 18 years of age, which presumption, in the absence of evidence to the contrary, is evidence to be considered by the jury; but this does not imply that the jury is not required to determine defendant’s age. State v. Lefler, 202 N.C. 700 , 163 S.E. 873, 1932 N.C. LEXIS 193 (1932); State v. Lewis, 224 N.C. 774 , 32 S.E.2d 334, 1944 N.C. LEXIS 250 (1944); State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958).

Fact That Accused Is Under 18 Is Matter of Defense. —

The presumption is that the male person charged is over 18 years of age; and the fact, if it be a fact, that he is not over 18 years of age, relevant solely to punishment, is a matter of defense. State v. Smith, 157 N.C. 578 , 72 S.E. 853, 1911 N.C. LEXIS 100 (1911); State v. Jones, 181 N.C. 546 , 106 S.E. 817, 1921 N.C. LEXIS 143 (1921); State v. Lefler, 202 N.C. 700 , 163 S.E. 873, 1932 N.C. LEXIS 193 (1932); State v. Lewis, 224 N.C. 774 , 32 S.E.2d 334, 1944 N.C. LEXIS 250 (1944); State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958).

Burden to Prove Age Below 18. —

The burden is upon the defendant, charged with an assault upon a woman, to show that he was under the age specified in order to except his case, and it is not necessary to the validity of the bill that it state that he was over the age, as an assault upon a woman is a crime without regard to the age of the person who commits it, and the age merely relates to the degree of punishment and is not an element or ingredient of the offense charged. State v. Smith, 157 N.C. 578 , 72 S.E. 853, 1911 N.C. LEXIS 100 (1911); State v. Morgan, 225 N.C. 549 , 35 S.E.2d 621, 1945 N.C. LEXIS 426 (1945); State v. Herring, 226 N.C. 213 , 37 S.E.2d 319, 1946 N.C. LEXIS 414 (1946); State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958); State v. Beam, 255 N.C. 347 , 121 S.E.2d 558, 1961 N.C. LEXIS 590 (1961).

Plea of Not Guilty as Putting Accused’s Age in Issue. —

Although not an essential averment, if in fact the indictment charged that the defendant was a male person over the age of 18 years, it could be considered, nothing else appearing, that the defendant’s plea of not guilty was a denial of this nonessential averment; but where as in the instant case the indictment did not so charge it could not be said that the defendant, simply by his plea of not guilty, put in issue whether he was over 18 years of age at the time of the alleged assault. State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958).

Assault on a female is not a lesser included offense of taking indecent liberties with a child because assault on a female contains elements not present in the greater offense. State v. Love, 127 N.C. App. 437, 490 S.E.2d 249, 1997 N.C. App. LEXIS 885 (1997).

Assault on Female Not a Lesser Included Offense of Assault by Strangulation. —

Under G.S. 14-33(c)(2), the essential elements of assault on a female were assault upon a female person by a male person at least 18 years of age; in contrast, the offense of assault by strangulation, G.S. 14-32.4(b), required only that an individual assault another person and inflict physical injury by strangulation. Because each offense included at least one element not present in the other, assault on a female was not a lesser included offense of assault by strangulation and the trial court properly denied a lesser-included-offense instruction. State v. Brunson, 187 N.C. App. 472, 653 S.E.2d 552, 2007 N.C. App. LEXIS 2421 (2007).

Effect of Admission by Accused That He Is over 18. —

When a male defendant, during the progress of his trial on an indictment charging an assault on a female or a more serious crime embracing the charge of assault on a female, testifies that he is over 18 years of age at the time of the alleged assault and there is no evidence or contention to the contrary, the collateral issue as to defendant’s age need not be submitted to or answered by the jury. His testimony, under such circumstances, relating to such collateral issue, relevant solely to punishment, must be considered an admission on which the court may rely in the trial of the cause and in pronouncing judgment. State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958).

Amendment of Warrant. —

Where defendant entered a plea of guilty to a warrant charging an assault upon a female and nothing more, the trial court was without authority, upon a later amendment of the warrant to charge that defendant was a male person over 18 years of age, to enter judgment on the amended warrant in the absence of a verdict of a jury or a plea of guilty by defendant to the warrant as amended, and sentence in excess of that permitted by law for the offense originally charged in the warrant would be set aside and cause remanded for trial upon the warrant as amended. State v. Terry, 236 N.C. 222 , 72 S.E.2d 423, 1952 N.C. LEXIS 515 (1952).

Evidence Sufficient to Go to Jury. —

There was sufficient evidence presented for a jury to decide the question of whether defendant committed an assault on a female by fondling a victim’s breasts for an assault on a female charge under G.S. 14-33(c)(2) and for the jury to infer that defendant awoke the victim on the day the assault occurred in the same manner as defendant had on many other mornings, by fondling the victim’s breasts, as the victim testified that: (1) during the week, defendant would wake the victim up by putting defendant’s hands up the victim’s bra or putting defendant’s hands down the victim’s pants; (2) defendant awoke the victim this way almost every day; and (3) on the date at issue, the victim woke up the same way as the victim did every morning, and the victim got dressed and went to school. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Jury Instructions. —

If the basis of a habitual misdemeanor assault charge is an offense under G.S. 14-33 , there must also be a physical injury; Although the trial court erred in failing to instruct jury on all necessary elements for defendant’s conviction of habitual misdemeanor assault, G.S. 14-33.2 , in that it failed to instruct that the jury must find that the assaults resulted in physical injury, the judgment was affirmed because there was plenary, uncontroverted evidence that both of the underlying assaults resulted in physical injuries; thus, defendant was not able to show that, absent the error, the jury probably would have returned different verdicts, and thus failed to establish plain error. State v. Garrison, 225 N.C. App. 170, 736 S.E.2d 610, 2013 N.C. App. LEXIS 65 (2013).

Amendment of Jury Instruction. —

Trial court did not err in amending the jury instructions to read that the assault, in violation of G.S. 14-33(c)(2), could have been committed if defendant intentionally touched, however slight, the body of the alleged victim. State v. West, 146 N.C. App. 741, 554 S.E.2d 837, 2001 N.C. App. LEXIS 1075 (2001).

Prior Contempt Adjudication Resulted in Double Jeopardy. —

Defendant’s prosecution on the change of assault on a female under subdivision (b)(2) of this section, subsequent to his being held in contempt for violating a violence protective order, was barred by the Double Jeopardy Clause, and his conviction for assault on a female was accordingly vacated. State v. Gilley, 135 N.C. App. 519, 522 S.E.2d 111, 1999 N.C. App. LEXIS 1177 (1999), cert. denied, 353 N.C. 528 , 549 S.E.2d 860, 2001 N.C. LEXIS 602 (2001).

The age of defendant relates only to the punishment. State v. Beam, 255 N.C. 347 , 121 S.E.2d 558, 1961 N.C. LEXIS 590 (1961).

An assault on a female, committed by a man or boy over 18 years of age, is not simple assault; it is a misdemeanor punishable in the discretion of the court. State v. Barnhill, 37 N.C. App. 612, 246 S.E.2d 579, 1978 N.C. App. LEXIS 2813 (1978).

Sentence Under Verdict of “Guilty of Simple Assault on a Female”. —

In a prosecution for an assault with intent to commit rape a verdict of “guilty of simple assault on a female” supports a sentence for an assault on a female by a male person over the age of 18 years when the defendant’s own evidence discloses that he was over 18 years of age at the time of the commission of the assault, and no question of defendant’s age is raised during the trial. State v. Mitchell, 6 N.C. App. 534, 170 S.E.2d 355, 1969 N.C. App. LEXIS 1222 (1969).

Sentence on Conviction of Assault upon Female. —

One lawfully convicted of assault upon a female may be sentenced to a longer term of imprisonment, if the evidence shows him to be, and he is found to be, over 18 years of age, than would be proper in the absence of such evidence and finding, even though the indictment under which he was tried does not allege his age. State v. Perry, 291 N.C. 586 , 231 S.E.2d 262, 1977 N.C. LEXIS 1223 (1977).

Defendant’s argument that the conduct used to support his conviction for assault on a female under G.S. 14-33(c)(2) was also used to support his conviction for robbery under G.S. 14-87 was not appealable as of right under G.S. 15A-1444(a1) because both sentences were within the presumptive range under G.S. 15A-1340.17(c). State v. Potter, 198 N.C. App. 682, 680 S.E.2d 262, 2009 N.C. App. LEXIS 1343 (2009), abrogated in part, State v. Jones, 237 N.C. App. 526, 767 S.E.2d 341, 2014 N.C. App. LEXIS 1211 (2014).

Sodomy as Assault and Battery. —

Sodomy is but an extremely aggravated form of assault and battery. City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430, 1998 N.C. App. LEXIS 914 (1998).

Substantial evidence supported the defendant’s conviction of assault on a female where witness, who was a female, testified that defendant, a male over age 18, “hit me across the chest . . . .” State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518, 2000 N.C. App. LEXIS 887 (2000).

Concealed Weapon Permit Properly Denied. —

Applicant’s request for a concealed handgun permit was properly denied as: (1) the criteria for revoking a permit under G.S. 14-415.18 did not apply as the applicant’s prior permit had expired and had not been revoked prior to its expiration; (2) under G.S. 14-415.12(b)(8), the sheriff was to deny a permit if an applicant had been convicted of a misdemeanor under N.C. Gen. Stat. ch. 14, art. 8; (3) the applicant had been convicted of assault on a female under G.S. 14-33(c)(2), which was a misdemeanor violation under art. 8.; and (4) the applicant was not entitled to renew his permit under G.S. 14-415.16 . Kelly v. Riley, 223 N.C. App. 261, 733 S.E.2d 194, 2012 N.C. App. LEXIS 1252 (2012).

Conviction Vacated. —

Defendant’s assault on a female conviction was vacated because defendant was also convicted of habitual misdemeanor assault based on the same conduct, and G.S. 14-33(c) barred a sentence if another law requiring greater punishment covered the conduct. State v. Jones, 237 N.C. App. 526, 767 S.E.2d 341, 2014 N.C. App. LEXIS 1211 (2014).

Substantial Similarity to Out-of-State Offense. —

While the trial court properly determined that the Tennessee offense of “theft of property” was substantially similar to the North Carolina offense of “larceny,” it erred in determining that the Tennessee offense of “domestic assault” was substantially similar to the North Carolina offense of “assault on a female” because the Tennessee offense did not require the victim to be female or the assailant to be male and of a certain age. State v. Sanders, 367 N.C. 716 , 766 S.E.2d 331, 2014 N.C. LEXIS 957 (2014).

VI.Assaults on Law-Enforcement Officers

The clear legislative intent in enacting former subdivision (b)(4) of this section was to provide greater punishment for those who place themselves in open defiance of duly constituted authority by assaulting public officers who are on duty. State v. Kirby, 15 N.C. App. 480, 190 S.E.2d 320, 1972 N.C. App. LEXIS 1946 (1972).

This section is designed to protect the State’s law enforcement officers from bodily injury and threats of violence. State v. Davis, 68 N.C. App. 238, 314 S.E.2d 828, 1984 N.C. App. LEXIS 3194 (1984).

Burden on State. —

To obtain a conviction under this section, the burden is on the State to satisfy the jury from the evidence beyond a reasonable doubt that the party assaulted was a law-enforcement officer performing the duty of his office, and that the defendant knew his victim was a law-enforcement officer. State v. Rowland, 54 N.C. App. 458, 283 S.E.2d 543, 1981 N.C. App. LEXIS 2865 (1981).

Knowledge on the part of the accused is an essential element of the crime of assault with a firearm upon a law enforcement officer. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Assault on Officer Is Primary Conduct Proscribed. —

In the offense of assaulting a public officer in the performance of some duty, the assault on the officer is the primary conduct proscribed by the statute and the particular duty that the officer is performing while being assaulted is of secondary importance. State v. Kirby, 15 N.C. App. 480, 190 S.E.2d 320, 1972 N.C. App. LEXIS 1946 (1972); State v. Bradley, 32 N.C. App. 666, 233 S.E.2d 603, 1977 N.C. App. LEXIS 2035 (1977).

An assault upon an officer while he is discharging or attempting to discharge a duty of his office was an offense punishable under former subdivision (b)(4) of this section, regardless of its effects or intended effects upon the officer’s performance of his duties. The particular duty the officer was performing when assaulted was not of primary importance, it only being essential that the officer was performing or attempting to perform any duty of his office. State v. Waller, 37 N.C. App. 133, 245 S.E.2d 808, 1978 N.C. App. LEXIS 2669 (1978).

Where a patrolman, while not engaged in any patrol of the highway for purposes of observing traffic or making random license checks, spontaneously decided to stop petitioner, not while petitioner was “on a public highway” nor while petitioner was operating a vehicle, but instead while petitioner was in a private driveway, although petitioner would have had a meritorious defense to any prosecution based on failure to display his license, he was not entitled to invoke self-help against what was, at the time, an arguably lawful arrest, and petitioner’s conviction for assaulting the highway patrolman could survive despite the finding that the officer’s initial stop and demand were illegal as an unreasonable search and seizure under the Fourth Amendment. Keziah v. Bostic, 452 F. Supp. 912, 1978 U.S. Dist. LEXIS 16900 (W.D.N.C. 1978).

Under former subdivision (b)(4) of this section, the particular duty the officer was performing when assaulted was not of primary importance, it only being essential that the officer was performing or attempting to perform any duty of his office. Thus a magistrate’s order failing to allege specifically the duty of office which the public officer was discharging or attempting to discharge is not for that reason defective. State v. Anderson, 40 N.C. App. 318, 253 S.E.2d 48, 1979 N.C. App. LEXIS 2254 (1979).

“Serious Injury” and “Serious Bodily Injury”. —

G.S. 14-34.7 was ambiguous because the statute’s title referred to assaults inflicting “serious injury” while the statute text specified assaults inflicting “serious bodily injury” — under North Carolina law, the terms “serious injury” and “serious bodily injury” were not interchangeable; however, when interpreting ambiguous statutes, the principal goal is to effectuate the purpose of the legislature, and the “manifest purpose” of the legislature in enacting G.S. 14-34.7 was to make an assault inflicting “serious injury” or “serious bodily injury” against a law enforcement officer a felony. State v. Crawford, 167 N.C. App. 777, 606 S.E.2d 375, 2005 N.C. App. LEXIS 1 (2005).

Evidence Showing Officer Discharging Duty of Office. —

Although a warrant charging a violation of former subdivision (b)(4) of this section was sufficient if it alleged only in general terms that the officer was discharging or attempting to discharge a duty of his office at the time the assault occurred, without alleging specifically what that duty was, to sustain a conviction of violating that statute it was still necessary that the State present evidence and that the jury find under appropriate instructions from the court that the officer was discharging or attempting to discharge some duty of his office when the defendant assaulted him. State v. Waller, 37 N.C. App. 133, 245 S.E.2d 808, 1978 N.C. App. LEXIS 2669 (1978).

Where evidence established that defendant did assault a deputy sheriff by swinging his elbow at him, either offensively or in trying to free himself; and that this assault occurred while the deputy sheriff was discharging or attempting to discharge a duty of his office, such conduct violated former subdivision (b)(4), and arrest therefor was thus lawful and proper. State v. Sampley, 60 N.C. App. 493, 299 S.E.2d 460, 1983 N.C. App. LEXIS 2509 (1983).

Officers who were investigating a minor accident were performing a duty of their office, even though G.S. 20-166.1(e) only requires law enforcement departments to investigate collisions resulting in injury or death, and defendant therefore could properly be convicted of violating former subdivision (b)(4). State v. Adams, 88 N.C. App. 139, 362 S.E.2d 789, 1987 N.C. App. LEXIS 3422 (1987).

Off-Duty Officers in Uniform. —

Where officers were off-duty members of the police department, were working in full police uniform and were carrying sidearms, the officers’ employment had been arranged through the police department, the officers were required to follow department mandated rules and guidelines and furthermore, at the time they were assaulted, the officers were attempting to place defendant under arrest, there was sufficient evidence presented at trial to establish a violation of subdivision (b)(4) of this section. State v. Lightner, 108 N.C. App. 349, 423 S.E.2d 827, 1992 N.C. App. LEXIS 920 (1992).

Presumption That Public Officer is Acting Lawfully. —

The offense under former subdivision (b)(4) of assaulting a public officer when such officer is discharging or attempting to discharge a duty of his office presupposed lawful conduct of the public officer in discharging or attempting to discharge a duty of his office. State v. Jefferies, 17 N.C. App. 195, 193 S.E.2d 388, 1972 N.C. App. LEXIS 1622 (1972), cert. denied, 282 N.C. 673 , 194 S.E.2d 153, 1973 N.C. LEXIS 1144 (1973).

One resisting an illegal arrest is not resisting an officer within the discharge of his official duties. State v. Anderson, 40 N.C. App. 318, 253 S.E.2d 48, 1979 N.C. App. LEXIS 2254 (1979).

A person resisting an illegal arrest is not resisting an officer within the discharge of his official duties. Roberts v. Swain, 126 N.C. App. 712, 487 S.E.2d 760, 1997 N.C. App. LEXIS 635 , cert. denied, 347 N.C. 270 , 493 S.E.2d 746, 1997 N.C. LEXIS 676 (1997).

Where the evidence is so conflicting as to raise the question of whether the law officer is acting lawfully, the jury must be properly instructed by the trial judge. State v. Bradley, 32 N.C. App. 666, 233 S.E.2d 603, 1977 N.C. App. LEXIS 2035 (1977).

A charge under this section requires all the essential elements of a charge under G.S. 14-223 . State v. Caldwell, 21 N.C. App. 723, 205 S.E.2d 322, 1974 N.C. App. LEXIS 1912 (1974).

Lesser Included Offense. —

Misdemeanor assault on a government official is not a lesser included offense of felony malicious conduct by a prisoner; therefore, defendant was not entitled to such a jury instruction in a case where defendant spat in an officer’s face. State v. Crouse, 169 N.C. App. 382, 610 S.E.2d 454, 2005 N.C. App. LEXIS 691 (2005).

Failure to Instruct Jury on Lesser-Included Offense of Misdemeanor Assault of Government Official Was Reversible Error. —

Trial court erred in failing to submit the lesser-included offense of misdemeanor assault on a government official to the jury and this failure amounted to prejudicial error that could not be cured by defendant’s subsequent conviction for felony assault with a deadly weapon on a government official because it could not be known whether the jury would have convicted defendant of a lesser degree if so permitted. State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29, 2007 N.C. App. LEXIS 1978 (2007).

Resisting Officer and Assaulting Officer Are Separate Offenses. —

The charge of resisting an officer and the charge of assaulting a public officer while discharging or attempting to discharge a duty of his office are separate and distinct offenses and the trial judge did not err in failing to “merge” them. State v. Kirby, 15 N.C. App. 480, 190 S.E.2d 320, 1972 N.C. App. LEXIS 1946 (1972); State v. Hardy, 298 N.C. 191 , 257 S.E.2d 426, 1979 N.C. LEXIS 1372 (1979).

There is a distinction between the offenses of resisting an officer under G.S. 14-223 and assault on an officer under former subdivision (b)(4) of this section. In the offense of resisting an officer, the resisting of the public officer in the performance of some duty is the primary conduct proscribed by that statute and the particular duty that the officer is performing while being resisted is of paramount importance and is very material to the preparation of the defendant’s defense, while in the offense of assaulting a public officer in the performance of some duty, the assault on the officer is the primary conduct proscribed by the statute and the particular duty that the officer is performing while being assaulted is of secondary importance. State v. Waller, 37 N.C. App. 133, 245 S.E.2d 808, 1978 N.C. App. LEXIS 2669 (1978).

Trial court did not err in refusing defendant’s request for a jury instruction that the incident that occurred at the patrol car was separate from that occurring at defendant’s car and that evidence of the latter was not proof that defendant obstructed and delayed the officer, as the offenses of assaulting a government officer and obstruction and delay of a public officer were separate; the jury could find, without violating the Double Jeopardy Clause, that the evidence of defendant’s conduct that occurred after she left the patrol car was supportive of a charge of obstructing and delaying, even though the district court had found that the same conduct was insufficient to constitute an assault. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824, 2004 N.C. App. LEXIS 742 (2004).

Conviction of Both Resisting Arrest and Assault on Officer. —

Where a defendant had been tried under two warrants, one for violating G.S. 14-223 and the other for violating former subdivision (b)(4), and where each warrant included all the elements of the offense charged in the other, and each specified only acts of violence which defendant directed at the officer’s person while he was attempting to hold defendant in custody, the defendant had been twice convicted and sentenced for the same criminal offense, and the constitutional guaranty against double jeopardy protected a defendant from multiple punishments for the same offense. State v. Summrell, 282 N.C. 157 , 192 S.E.2d 569, 1972 N.C. LEXIS 924 (1972).

Where the record revealed that defendant was convicted of both resisting arrest and assault on an officer in the performance of his duties on the same evidence, the defendant was twice convicted and sentenced for the same criminal offense. The fact that defendant was given concurrent sentences did not make the duplication of punishment and sentences any less a violation of defendant’s constitutional right not to be put in jeopardy twice for the same offense. State v. Raynor, 33 N.C. App. 698, 236 S.E.2d 307, 1977 N.C. App. LEXIS 2327 (1977); State v. Hardy, 298 N.C. 191 , 257 S.E.2d 426, 1979 N.C. LEXIS 1372 (1979).

Election Between Duplicate Charges. —

In a prosecution for resisting arrest and assaulting a police officer, where the warrants charge the same conduct and the evidence clearly shows that no line of demarcation between defendant’s resistance of arrest and his assaults upon the officer could be drawn, the assaults being the means by which the resistance was accomplished, the State must elect between the duplicate charges. State v. Hardy, 33 N.C. App. 722, 236 S.E.2d 709, 1977 N.C. App. LEXIS 2332 (1977), aff'd in part and rev'd in part, 298 N.C. 191 , 257 S.E.2d 426, 1979 N.C. LEXIS 1372 (1979).

Trial court did not violate the Double Jeopardy Clause by admitting evidence of events occurring after defendant left a patrol car in defendant’s subsequent trial for obstruction and delay of a public officer under G.S. 14-223 , even though defendant had been acquitted of an assault upon a government officer charge under G.S. 14-33(c)(4), as the acquittal could have resulted from findings that defendant did not attempt to do immediate physical injury to the officer, did not use sufficient force to put a reasonable person in fear of immediate bodily harm, or was defending herself from the excessive use of force; as there was more than one possible explanation from for the acquittal, defendant failed to meet her burden to establish collateral estoppel. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824, 2004 N.C. App. LEXIS 742 (2004).

Defendant’s convictions for malicious conduct by a prisoner and habitual misdemeanor assault did not charge the same offense, and, thus, did not violate the double jeopardy clause; although the conduct alleged in both indictments was identical, the evidence needed to prove both malicious conduct by a prisoner and habitual misdemeanor assault based on an assault on a government employee was different, which meant separate offenses were involved. State v. Artis, 174 N.C. App. 668, 622 S.E.2d 204, 2005 N.C. App. LEXIS 2610 (2005).

Excessive Force by Officer. —

In all cases where the charge is assault on a law officer in violation of former subdivision (b)(4) of this section, or assault of a law officer with a firearm (G.S. 14-34.2), the use of excessive force by the law officer in making an arrest or preventing escape from custody does not take the officer outside the performance of his duties, nor does it make the arrest unlawful. State v. Mensch, 34 N.C. App. 572, 239 S.E.2d 297, 1977 N.C. App. LEXIS 1771 (1977), cert. denied, 294 N.C. 443 , 241 S.E.2d 845, 1978 N.C. LEXIS 1274 (1978).

In a prosecution for assault on a police officer it is not incumbent upon the State to prove that the law officer did not use excessive force in making an arrest, but where there is evidence tending to show the use of such excessive force by the law officer, the trial court should instruct the jury that the assault by the defendant upon the law officer was justified or excused if the assault was limited to the use of reasonable force by the defendant in defending himself from that excessive force. State v. Mensch, 34 N.C. App. 572, 239 S.E.2d 297, 1977 N.C. App. LEXIS 1771 (1977), cert. denied, 294 N.C. 443 , 241 S.E.2d 845, 1978 N.C. LEXIS 1274 (1978).

The right to use force to defend oneself against the excessive use of force during an arrest may arise despite the lawfulness of the arrest, and the use of excessive force does not render the arrest illegal. State v. Anderson, 40 N.C. App. 318, 253 S.E.2d 48, 1979 N.C. App. LEXIS 2254 (1979).

Where defendant has been illegally restrained under U.S. Const., Amend. IV., he has the right to use only such force as reasonably appears necessary to prevent the unlawful restraint of his liberty. State v. Harrell, 67 N.C. App. 57, 312 S.E.2d 230, 1984 N.C. App. LEXIS 2985 (1984).

Defendant’s act of striking officer in the face was an unnecessary show of force in response to the officer’s retention of his license and request to search his car. Defendant was, therefore, properly charged under former subdivision (b)(4) of this section. State v. Harrell, 67 N.C. App. 57, 312 S.E.2d 230, 1984 N.C. App. LEXIS 2985 (1984).

The bystander coming to the aid of an arrestee is entitled to use only such force as is reasonably necessary to defend the arrestee from the excessive use of force. State v. Anderson, 40 N.C. App. 318, 253 S.E.2d 48, 1979 N.C. App. LEXIS 2254 (1979).

One who comes to the aid of an arrestee must do so at his own peril and should be excused only when the individual would himself be justified in defending himself from the conduct of the arresting officers. State v. Anderson, 40 N.C. App. 318, 253 S.E.2d 48, 1979 N.C. App. LEXIS 2254 (1979).

Instruction on Use of Reasonable Force to Resist Excessive Force. —

When there is evidence tending to show the excessive use of force by a law-enforcement officer in making an arrest, the trial court is required to instruct the jury that the force used against the law-enforcement officer was justified or excused if the assault was limited to the use of reasonable force by defendant in defending himself from excessive force. State v. Anderson, 40 N.C. App. 318, 253 S.E.2d 48, 1979 N.C. App. LEXIS 2254 (1979).

VII.Sufficiency of Evidence

Assault on Female. —

Evidence that the prisoner wakened the prosecutrix while she was asleep in her own room at night by placing his hand upon her forehead, was sufficient to convict of an assault upon a female, etc., and a motion as of nonsuit thereon could not be granted, though such evidence was insufficient for a conviction of the intent to ravish her. State v. Hill, 181 N.C. 558 , 107 S.E. 140, 1921 N.C. LEXIS 148 (1921).

Evidence that a man, 23 years of age, several times accosted a girl 15 years of age, on the streets of a town, with improper solicitation, which resulted in her fleeing from him in a direction she had not intended to go, and, in her great fear of him, had caused her to become nervous and to lose sleep at night, was held to be such evidence of violence, begun to be executed with ability to effectuate it, as would come within the intent and meaning of this section making it a crime for a man or boy over 18 years of age to assault any female person. State v. Williams, 186 N.C. 627 , 120 S.E. 224, 1923 N.C. LEXIS 310 (1923).

In a criminal prosecution upon an indictment charging defendant with assault with intent to commit rape wherein defendant tendered to the court a plea of guilty of an assault upon a female, it was held that while the court found that the assault was aggravated, shocking and outrageous to the sensibilities and decencies of right-thinking citizens, the court did not find the offense to be infamous and that the plea tendered by defendant, and accepted by the court, did not constitute a plea of guilty to an infamous offense, but, on the contrary, constituted a plea of guilty of a misdemeanor punishable as provided in this section. State v. Tyson, 223 N.C. 492 , 27 S.E.2d 113, 1943 N.C. LEXIS 308 (1943).

Where a female was approached at night on a city street by defendant, who made improper proposals and indecently exposed his person, without touching the said female, who thereupon ran a short distance to her home, the evidence was insufficient to support a conviction of assault with intent to commit rape, although it would warrant a conviction of an assault upon a female. State v. Gay, 224 N.C. 141 , 29 S.E.2d 458, 1944 N.C. LEXIS 319 (1944).

In State v. Moore, 227 N.C. 326 , 42 S.E.2d 84 (1947), the court held the evidence sufficient to sustain a verdict of guilty of assault upon a female.

Evidence held sufficient to be submitted to the jury in a prosecution for assault on a female. State v. Allen, 245 N.C. 185 , 95 S.E.2d 526, 1956 N.C. LEXIS 554 (1956).

For discussion of sufficiency of evidence to justify an inference of intent to rape, see State v. Rushing, 61 N.C. App. 62, 300 S.E.2d 445, 1983 N.C. App. LEXIS 2575 , aff'd, 308 N.C. 804 , 303 S.E.2d 822, 1983 N.C. LEXIS 1305 (1983).

Assault on Child. —

There was ample evidence to support the verdict of guilty of assault on a child under 12 years of age. State v. Roberts, 286 N.C. 265 , 210 S.E.2d 396, 1974 N.C. LEXIS 1226 (1974).

Defendant’s conviction and sentence for assault on a child had to be vacated because he could not be “guilty of” violating that statute where he was convicted and sentenced for assault with a deadly weapon, which carried a harsher punishment than that provided under the first statute. State v. Perry, 260 N.C. App. 659, 818 S.E.2d 699, 2018 N.C. App. LEXIS 781 , writ denied, 371 N.C. 790 , 821 S.E.2d 175, 2018 N.C. LEXIS 1089 (2018).

Evidence Sufficient for Show of Violence. —

Denial of defendant’s motion to dismiss the assault with a deadly weapon charge was proper as the testimony supported a conclusion that he committed an act to do some immediate injury to the victim by driving a vehicle toward him at a high rate of speed, and his actions in doing so immediately after the parties had engaged in a violent struggle put the victim reasonably in fear of harm. State v. Quinton Dante English, 272 N.C. App. 89, 845 S.E.2d 901, 2020 N.C. App. LEXIS 463 (2020).

Evidence Sufficient. —

Taken in the light most favorable to the State, the evidence was sufficient to support a finding that the defendant committed an assault inflicting serious injury because the testimony established that the defendant struck the victim in the left cheek; clawed at the victim’s face; grabbed the victim’s bottom lip; ripped the victim’s bottom lip open; stuck his hand back in the victim’s mouth and ripped the victim’s soft tissue out from under the victim’s tongue; and pulled his hand out of the victim’s mouth, breaking the victim’s jaw in the process. State v. Carpenter, 155 N.C. App. 35, 573 S.E.2d 668, 2002 N.C. App. LEXIS 1624 (2002).

Evidence that defendant, a gang member, (1) on one night met with other gang members to participate in an initiation of gang members, (2) participated in obtaining bullets to support gang missions, (3) asked to be allowed to shoot a victim that was abducted by other gang members, and (4) grumbled when he was not chosen to shoot and kill the victim, was sufficient to show that defendant joined with one or more persons to kidnap, rob, assault with a deadly weapon, and attempt to murder the victim, and was constructively present when the crimes were carried out. State v. Tirado, 358 N.C. 551 , 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

State produced sufficient evidence to support a conviction of assault with a deadly weapon where testimony revealed that defendant went into the room where the victims were, later reemerged from the room wearing one victim’s jacket, and that at the time of the assault, the victim was undressed and facing downward in an unlit bedroom, was hit in the head from behind, and dragged to the ground, where he was then kicked while facing downward. State v. Yarrell, 172 N.C. App. 135, 616 S.E.2d 258, 2005 N.C. App. LEXIS 1428 (2005).

Through the testimony of a middle school teacher that defendant, a juvenile, dragged her and struggled while the teacher was trying to prevent defendant from assaulting another student, the State had presented enough evidence for a charge of assault on a state employee in violation of G.S. 14-33(c)(4) to withstand a motion to dismiss. Thus, defense counsel was not ineffective for failing to renew the motion at the close of all of the evidence. In re A.V., 188 N.C. App. 317, 654 S.E.2d 811, 2008 N.C. App. LEXIS 80 (2008).

There was substantial evidence that defendant assaulted a victim under G.S. 14-33(c)(1) because (1) defendant had attempted to engage the victim in play fighting and was rebuffed, (2) the victim shoved defendant in an attempt to relay to defendant the victim’s feelings about “play fighting,” (3) defendant was in close proximity when the victim was struck, and (4) defendant was taunting the victim when the victim regained consciousness. In re C.B., 187 N.C. App. 803, 654 S.E.2d 21, 2007 N.C. App. LEXIS 2521 (2007).

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4(a), he unsuccessfully argued that the evidence was insufficient to show that the officer was taking defendant into custody for littering. Defendant was a passenger in a car that attempted to evade police officers, and during the chase, officers observed plastic bags being thrown from the vehicle into the river below, and, while there was a variance between the allegations in the indictment and the proof offered, the variance was not material; the indictments alleged that the officer was performing his duties as a government employee, and proof was offered to support the material allegation that the officer was performing a government duty when he was spit upon. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4(a), he unsuccessfully argued that the evidence was insufficient to support a finding that he acted knowingly and willfully when he spat on a police officer. Defendant’s conduct and his statements prior to and during the encounter with the officer supported the conclusion that defendant acted knowingly and willfully when he spat on the officer. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4(a), he unsuccessfully argued that the officer’s many statements about the spitting incident failed to establish that defendant spit a bodily fluid on him. Considering the evidence in the light most favorable to the State, taking it to be true, and giving the State the benefit of every reasonable inference to be drawn therefrom, the officer’s testimony was sufficient to allow a reasonable inference that defendant emitted a bodily fluid onto the officer and, thus, assaulted him. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

State sufficiently proved appellant, a juvenile, committed every element of simple assault because the State presented evidence that (1) the victim was robbed of personal property by a group of boys while waiting for the victim’s mother after school, (2) the victim twice identified appellant in photographic lineups as an assaulter, (3) the victim testified at trial to remembering appellant patting the victim down, (4) another perpetrator testified to appellant having walked behind the victim, (5) the victim testified and wrote a statement giving a vivid description of the incident in which the boys confronted the victim, the other perpetrator walked behind the victim and pulled the victim down, and then the rest of the boys, including appellant, rushed in and beat up and robbed the victim. In re T.H., 218 N.C. App. 123, 721 S.E.2d 728, 2012 N.C. App. LEXIS 75 (2012).

In connection with an order finding the defendant juvenile delinquent of misdemeanor assault, there was sufficient evidence for the trial court to determine that defendant’s actions were intentional and the trial court did not err in denying a motion to dismiss the petition; a witness testified that the defendant was very defiant, “body checked” the witness, and stormed past another person and left. In re M.J.G., 234 N.C. App. 350, 759 S.E.2d 361, 2014 N.C. App. LEXIS 611 (2014).

Since the testimony and video footage showed that defendant drove toward the victim, hit the victim with the passenger side-view mirror of the car, exited the vehicle, and walked toward the victim while visibly upset, the circumstances could have allowed a reasonable person to believe that the defendant intended to hit the victim, or at least intended to put the victim in fear of immediate bodily harm and, thus, was sufficient to withstand the defendant’s motion to dismiss the charge of misdemeanor assault. State v. Bediz, 269 N.C. App. 39, 837 S.E.2d 188, 2019 N.C. App. LEXIS 1016 (2019).

Evidence Insufficient. —

In State v. Silver, 227 N.C. 352 , 42 S.E.2d 208 (1947), the court held the evidence insufficient to sustain a verdict of guilty of an assault upon a female.

Evidence Insufficient for Conviction for Two Separate Assaults. —

Because defendant’s two assault charges for pointing a gun and assault with a deadly weapon arose out of the acts of raising his gun and firing his gun that occurred in rapid succession and seemingly without interruption, the evidence was insufficient to convict him of two separate assaults; thus, his conviction for assault by pointing a gun was vacated. State v. Jones, 265 N.C. App. 644, 829 S.E.2d 507, 2019 N.C. App. LEXIS 497 (2019).

VIII.Punishment

Constitutionality. —

When the punishment does not exceed the limits fixed by this section, it cannot be considered cruel and unusual punishment in a constitutional sense. State v. Caldwell, 269 N.C. 521 , 153 S.E.2d 34, 1967 N.C. LEXIS 1099 (1967).

A sentence of imprisonment which is within the limitation authorized by statute cannot be held cruel or unusual in the constitutional sense. State v. Cross, 27 N.C. App. 335, 219 S.E.2d 274, 1975 N.C. App. LEXIS 1839 (1975).

When no imprisonment time is fixed by the statute, imprisonment for two years, as in the case of an assault with a deadly weapon, will not be held to be cruel and unusual punishment in violation of N.C. Const., Art. I, § 14 (see now N.C. Const., Art. I, § 27). State v. Crandall, 225 N.C. 148 , 33 S.E.2d 861, 1945 N.C. LEXIS 282 (1945).

Right to Unanimous Jury Verdict not Violated. —

Defendant was not deprived of defendant’s right to a unanimous jury verdict as to charges of first-degree statutory sexual offense under G.S. 14-27.2 , statutory sexual offense against a person who was 13, 14, or 15 years old under G.S. 14-27.4(a)(1), taking indecent liberties with a child under G.S. 14-202.1 , second-degree forcible sexual offense under G.S 14-27.5, and assault on a female by a male at least 18 years of age under G.S. 14-33(c)(2) as: (1) the indictments were valid absent the inclusion of the specific acts that constituted the alleged sexual offenses; (2) the jury instructions and verdict sheets for each offense specifically identified each case by its number, listed the date on which each offense was alleged to have occurred, and listed the specific acts which were to serve as the underlying basis for each offense; (3) the jury was instructed specifically in each case in which defendant was charged with multiple counts of the same offense involving the same victim; (4) there was nothing in the record to indicate that the jury was confused by either the trial court’s instructions or the verdict sheets; and (5) the jury was polled following the announcement of the verdicts. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Sentencing. —

State met its burden of proving defendant’s prior conviction in Virginia, for inflicting bodily injury on an employee of a juvenile detention center in violation of Va. Code Ann. § 18.2-55, was “substantially similar” to a Class A1 or Class 1 misdemeanor as required by G.S. 15A-1340.14(e), for the purpose of considering prior convictions for sentencing defendant for murder, kidnapping, rape, and burglary convictions in North Carolina. Indeed, the Virginia conviction was substantially similar to bodily injury caused in violation of G.S. 14-33(c), a class A1 misdemeanor, for North Carolina purposes. State v. Sapp, 190 N.C. App. 698, 661 S.E.2d 304, 2008 N.C. App. LEXIS 1098 (2008).

Extent of Sentence. —

While the language of this section authorizes a punishment for assault with or without intent to kill, by fine or imprisonment, or both, in the discretion of the court, it does not at all mean that the judge may change the character of punishment recognized and established by the law for such an offense, but that, within such limits, the extent of the fine and imprisonment, or both, is in the discretion of the trial judge, and his sentence may not be interfered with by the appellate court, except in case of manifest and gross abuse. State v. Smith, 174 N.C. 804 , 93 S.E. 910, 1917 N.C. LEXIS 215 (1917).

As long as the punishment rendered is within the maximum provided by law, an appellate court must assume that the trial judge acted fairly, reasonably and impartially in the performance of his office. State v. Cross, 27 N.C. App. 335, 219 S.E.2d 274, 1975 N.C. App. LEXIS 1839 (1975).

Determination of Prior Record Level. —

Trial court erred by concluding that defendant’s prior conviction in violation under Ohio Rev. Code Ann. § 2901.23 was substantially similar to G.S. 14-32 and in attributing to defendant a prior record level IV for felony sentencing purposes because § 2901.23 was not substantially similar to G.S. 14-32 , but it was substantially similar to G.S. 14-33(c)(1); therefore, defendant’s prior record level points for felony sentencing would be reduced. State v. Phillips, 227 N.C. App. 416, 742 S.E.2d 338, 2013 N.C. App. LEXIS 528 (2013).

Sentencing court erred in finding that the Tennessee offense of domestic assault was substantially similar to the North Carolina offense of assault on a female where the Tennessee offense required a showing of a particular relationship between defendant and the victim and did not require that the victim be female. State v. Sanders, 232 N.C. App. 262, 753 S.E.2d 713, 2014 N.C. App. LEXIS 123 , aff'd, 367 N.C. 716 , 766 S.E.2d 331, 2014 N.C. LEXIS 957 (2014).

Assault with a deadly weapon is a general misdemeanor, punishable by fine or imprisonment or both, at the discretion of the court. State v. Weaver, 264 N.C. 681 , 142 S.E.2d 633, 1965 N.C. LEXIS 1260 (1965); State v. Burris, 3 N.C. App. 35, 164 S.E.2d 52, 1968 N.C. App. LEXIS 781 (1968).

And the maximum legal sentence therefor is two years. State v. Weaver, 264 N.C. 681 , 142 S.E.2d 633, 1965 N.C. LEXIS 1260 (1965); State v. Burris, 3 N.C. App. 35, 164 S.E.2d 52, 1968 N.C. App. LEXIS 781 (1968).

This section creates no new offense and relates only to punishment. Under its provisions all assaults and assaults and batteries not made felonious by other statutes are general misdemeanors punishable in the discretion of the court, except that where no deadly weapon has been used and no serious damage done, the punishment may not exceed a fine of $50.00 or imprisonment for 30 days, unless the assault comes within one of the exceptions appearing in this section. Assaults and assaults and batteries upon a female by a man or boy over 18 years of age are expressly excluded from the exceptions and they remain general misdemeanors. State v. Jackson, 226 N.C. 66 , 36 S.E.2d 706, 1946 N.C. LEXIS 381 (1946); State v. Courtney, 248 N.C. 447 , 103 S.E.2d 861, 1958 N.C. LEXIS 531 (1958); State v. Beam, 255 N.C. 347 , 121 S.E.2d 558, 1961 N.C. LEXIS 590 (1961); State v. Perry, 291 N.C. 586 , 231 S.E.2d 262, 1977 N.C. LEXIS 1223 (1977).

This section deals with punishment for various types of assault, all common-law offenses. State v. Jones, 258 N.C. 89 , 128 S.E.2d 1, 1962 N.C. LEXIS 635 (1962).

This section does not create a new offense as to assaults on a female, but only provides for different punishments for various types of assault. State v. Roberts, 270 N.C. 655 , 155 S.E.2d 303, 1967 N.C. LEXIS 1400 (1967).

Subsection (b) of this section and its subdivisions do not create additional or separate offenses. Instead, those subdivisions provide for differing punishments when the presence or absence of certain factors is established. State v. Gurganus, 39 N.C. App. 395, 250 S.E.2d 668, 1979 N.C. App. LEXIS 2512 (1979).

Although not elements of the crimes prohibited, the factors in subsection (b) of this section and its subdivisions must be shown to exist in order for the evidence to support a judgment imposing one of the greater sentences provided. State v. Gurganus, 39 N.C. App. 395, 250 S.E.2d 668, 1979 N.C. App. LEXIS 2512 (1979).

Double Jeopardy. —

Defendant’s claim that by failing to differentiate the various charges by providing different dates for the offenses and listing the underlying acts, the indictments opened the door to defendant being subjected to double jeopardy for the same acts on the same dates, was rejected because: (1) defendant’s indictments for statutory sexual offense, statutory sexual offense against a person who was 13, 14, or 15 years of age, and sexual offense were in compliance with the requirements of G.S. 15-144.2 , and the indictments matched the wording of N.C. G.S. 14-27.4(a)(1), G.S. 14-27.7 A(a), and G.S. 14-27.5(a)(1); (2) defendant’s indictments for the charges of taking indecent liberties with a child matched the wording of G.S.14-202.1(a)(2); and (3) defendant’s assault on a female indictments matched the wording of G.S. 14-33(c)(2); each of the indictments was sufficient to inform defendant of the charges against defendant, and defendant failed to show any deprivation of defendant’s ability to prepare a defense due to a lack of specificity in the indictments. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

It was no error to sentence defendant both for assault on a female and assault by strangulation because the crimes (1) were based on different conduct and (2) consolidated with a greater crime. State v. Harding, 258 N.C. App. 306, 813 S.E.2d 254, 2018 N.C. App. LEXIS 245 , writ denied, 371 N.C. 450 , 817 S.E.2d 205, 2018 N.C. LEXIS 669 (2018).

Double Punishment Prohibited. —

Where defendants were charged with assault on a law-enforcement officer with a firearm under G.S. 14-34.2 and assault with a deadly weapon with intent to kill under G.S. 14-32 , arrest of judgment upon their conviction of the lesser offense of assault with a deadly weapon was required, since assault and the use of a deadly weapon were necessarily included in the offense of assault on a law-enforcement officer with a firearm, and this result would punish defendants twice for the same offense. State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, 1980 N.C. App. LEXIS 3231 (1980).

Trial court violated defendant’s right to be free of double jeopardy when it sentenced him for both assault with a deadly weapon inflicting serious injury under G.S. 14-32(b) and misdemeanor assault inflicting serious injury under G.S. 14-33(c)(1) based on an incident in which defendant punched his girlfriend into a wall and stabbed her multiple times in the arm and leg; because defendant’s convictions under G.S. 14-32(b) provided for greater punishment than G.S. 14-32.4 or G.S. 14-33(c), the trial court could not convict and sentence defendant under two statutes for the same conduct in each incident without violating the double jeopardy provisions of USCS Const. Amend. 5 and N. C. Const. Art. I, § 19. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863, 2005 N.C. App. LEXIS 2289 (2005).

Sentence Held Erroneous. —

In prosecution for assault with a deadly weapon, appealing defendant relied upon and introduced evidence of self-defense and of matters in justification. The trial court instructed the jury that under the indictment and evidence the appealing defendant could be convicted of assault with a deadly weapon or of a simple assault. The jury convicted defendant of simple assault, but in imposing judgment the court found as a fact that said simple assault inflicted serious injury, and imposed a sentence of four months on the roads. It was held that the verdict of simple assault was permissible under the indictment and evidence, and the court was without power to sentence the appealing defendant to more than 30 days’ imprisonment. State v. Palmer, 212 N.C. 10 , 192 S.E. 896, 1937 N.C. LEXIS 219 (1937).

Where in a trial of an indictment, under G.S. 14-32 , defendant was convicted of an assault with intent to kill and judgment rendered that defendant serve not less than three nor more than four years in the State’s prison, there was error, as the offense described in the verdict was at most a misdemeanor punishable by fine and imprisonment, or both, in the discretion of the court as provided by this section. State v. Gregory, 223 N.C. 415 , 27 S.E.2d 140, 1943 N.C. LEXIS 290 (1943).

Where the offense charged, an assault wherein serious damage was inflicted, was a misdemeanor, conviction thereof did not support judgment of imprisonment in the State’s prison from two to five years. State v. Malpass, 226 N.C. 403 , 38 S.E.2d 156, 1946 N.C. LEXIS 449 (1946).

Effect of Acquittal on Part of Verdict. —

The fact that the jury convicted defendant of assault with a deadly weapon, after it had acquitted him in a previous part of the verdict of assault with a deadly weapon doing serious injury, did not entitle him to his discharge on his motion in arrest of judgment. State v. Bentley, 223 N.C. 563 , 27 S.E.2d 738, 1943 N.C. LEXIS 324 (1943).

Sentence Suspended on Condition of Payment of Fine Improper. —

Where defendant was found guilty of simple assault and the judgment imposed a jail sentence of 30 days which was suspended on condition that defendant pay a fine of $50.00 and costs of court, the judgment was not within the limits of this section. The penalty for violation of this section is phrased in the disjunctive. The imposition of a fine in addition to a jail sentence, exceeded the limitations of the statute, and the judgment was improper. State v. Allen, 42 N.C. App. 727, 257 S.E.2d 649, 1979 N.C. App. LEXIS 2982 (1979).

OPINIONS OF ATTORNEY GENERAL

Effect of 1969 Amendment. — This section, as rewritten in 1969, did not create new offenses. It merely classified assaults, assault and battery and affray as simple or aggravated and provided the amount of punishment which could be administered depending upon the elements of aggravation found. Opinion of Attorney General to Mr. Charles B. Winberry, 7th Judicial District Prosecutor, 40 N.C. Op. Att'y Gen. 154 (1969).

§ 14-33.1. Evidence of former threats upon plea of self-defense.

In any case of assault, assault and battery, or affray in which the plea of the defendant is self-defense, evidence of former threats against the defendant by the person alleged to have been assaulted by him, if such threats shall have been communicated to the defendant before the altercation, shall be competent as bearing upon the reasonableness of the claim of apprehension by the defendant of bodily harm, and also as bearing upon the amount of force which reasonably appeared necessary to the defendant, under the circumstances, to repel his assailant.

History. 1969, c. 618, s. 2.

CASE NOTES

Evidence of threats is admissible in assault cases upon a plea of self-defense; therefore, it follows that, under proper factual circumstances, such evidence is admissible upon a plea of defense of others. State v. Graves, 18 N.C. App. 177, 196 S.E.2d 582, 1973 N.C. App. LEXIS 1811 (1973).

Prior threats are admissible in assault cases where the defendant claims self-defense when the evidence of the threats is properly presented. State v. Butler, 21 N.C. App. 679, 205 S.E.2d 571, 1974 N.C. App. LEXIS 1901 (1974).

§ 14-33.2. Habitual misdemeanor assault.

A person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of G.S. 14-33 and causes physical injury, or G.S. 14-34 , and has two or more prior convictions for either misdemeanor or felony assault, with the earlier of the two prior convictions occurring no more than 15 years prior to the date of the current violation. A conviction under this section shall not be used as a prior conviction for any other habitual offense statute. A person convicted of violating this section is guilty of a Class H felony.

History. 1995, c. 507, s. 19.5(c); 2004-186, s. 10.1.

Effect of Amendments.

Session Laws 2004-186, s. 10.1, effective December 1, 2004, and applicable to offenses committed on or after that date, rewrote the section.

Legal Periodicals.

Once, Twice, Four Times a Felon: North Carolina’s Unconstitutional Recidivist Statutes, see 24 Campbell L. Rev. 115 (2001).

For comment, “Lots of Squeeze, Little (or No) Juice: North Carolina’s Habitual Misdemeanor Larceny Statute, a Law Where Results Do Not Justify Costs,” see 97 N.C.L. Rev. 432 (2019).

CASE NOTES

Double Jeopardy. —

Habitual misdemeanor assault statute does not violate the double jeopardy provisions of the United States and North Carolina Constitutions. State v. Carpenter, 155 N.C. App. 35, 573 S.E.2d 668, 2002 N.C. App. LEXIS 1624 (2002).

Recidivist statutes, or repeat-offender statutes, survived double jeopardy challenges because they increased the severity of the punishment for the crime being prosecuted, and they did not punish a previous crime a second time; the Apprendi and Blakely holdings did not extend to the habitual misdemeanor assault statute, G.S. 14-33.2 . State v. Massey, 179 N.C. App. 803, 635 S.E.2d 528, 2006 N.C. App. LEXIS 2141 (2006).

Relationship to Other Laws. —

Based upon the application of principles of statutory construction, defendant could not have been separately convicted and punished for the offenses of both habitual misdemeanor assault, G.S. 14-33.2 , and felony assault inflicting serious bodily injury, G.S. 14-32.4(a), stemming from the same act where under the prefatory language of G.S. 14-33(c)(1), defendant’s conduct violated that statute, a necessary prerequisite for defendant’s guilt of G.S. 14-33.2 , only if his conduct was not covered under a separate provision of law providing greater punishment. Because G.S. 14-32.4(a) provided greater punishment for the act committed by defendant upon the victim, that act did not constitute a violation of G.S. 14-33(c)(1). State v. Fields, 374 N.C. 629 , 843 S.E.2d 186, 2020 N.C. LEXIS 504 (2020).

Habitual Misdemeanor Assault as Substantive Offense. —

A close analysis of the precise wording of the habitual offender statutes reveals the intent of the General Assembly that habitual misdemeanor assault be a substantive offense rather than merely a status for purposes of sentence enhancement. State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518, 2000 N.C. App. LEXIS 887 (2000).

Habitual Felon and Habitual Misdemeanor Assault. —

Fact that the offense of felony assault inflicting serious bodily injury was used as a predicate offense to charge both habitual misdemeanor assault and habitual felon did not render an indictment defective; however, that same offense could not be used to determine defendant’s prior record level at sentencing. State v. Sydnor, 246 N.C. App. 353, 782 S.E.2d 910, 2016 N.C. App. LEXIS 292 (2016).

Indictments. —

Court erred in failing to dismiss the habitual misdemeanor assault charge where defendant was not properly arraigned; the State introduced no evidence of five prior convictions and failed to present evidence of an essential element of the charge requiring that the conviction for habitual misdemeanor assault be vacated. State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461, 2003 N.C. App. LEXIS 1799 (2003).

Defendant’s indictment for habitual misdemeanor assault complied with G.S. 15A-924 , G.S. 15A-928 where its first count, misdemeanor assault, properly alleged all elements, including causing physical injury to the victim, it did not mention defendant’s prior assault convictions as required by G.S. 15A-928 , and the second count, habitual misdemeanor assault, alleged that defendant had previously been convicted of two or more misdemeanor assaults in violation of G.S. 14-33.2 and listed the dates of those prior convictions. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

The habitual misdemeanor assault statute does not violate the prohibition on ex post facto laws found in both the United States Constitution, Art. I, § 10, cl. 1, and the North Carolina Constitution, Art. I, § 16, by increasing the penalty for these crimes after the offenses were committed, since it does not impose punishment for previous crimes, but rather imposes an enhanced punishment for behavior occurring after the enactment of the statute, because of the repetitive nature of such behavior. State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518, 2000 N.C. App. LEXIS 887 (2000).

G.S. 14-33.2 did not punish defendant for prior conduct, but rather for current conduct to a greater degree, due to his previous similar offenses, and thus did not violate the prohibition on ex post facto laws. State v. McCree, 160 N.C. App. 200, 584 S.E.2d 861, 2003 N.C. App. LEXIS 1727 (2003).

Argument Regarding Ex Post Facto Effect of Law Disallowed. —

Because G.S. 7A-97 presents no mandatory requirement that defendant be allowed to argue his version of the law, trial court properly exercised its discretion in preventing defendant from showing the jury a copy of this section, including its effective date, to support his argument that because two of the offenses named in the indictment occurred prior to its enactment they should not have been considered in determining the issue of his guilt on this charge. State v. Smith, 139 N.C. App. 209, 533 S.E.2d 518, 2000 N.C. App. LEXIS 887 (2000).

Prior Conviction for Misdemeanor Habitual Assault. —

Given the literal language of G.S. 14-33.2 , defendant’s prior conviction for misdemeanor habitual assault could not serve as one of the predicate felonies needed to support a decision to sentence him as an habitual felon following his conviction for some other substantive offense. State v. Shaw, 224 N.C. App. 209, 737 S.E.2d 596, 2012 N.C. App. LEXIS 1378 (2012).

Prior Offenses Need Not Have Occurred on Separate Occasions. —

G.S. 13-33.2 does not require that the prior misdemeanors supporting the finding that a defendant is an habitual offender occur on five separate occasions. State v. Forrest, 168 N.C. App. 614, 609 S.E.2d 241, 2005 N.C. App. LEXIS 392 (2005).

Jury Instructions. —

Although the trial court erred in failing to instruct jury on all necessary elements for defendant’s conviction of habitual misdemeanor assault, G.S. 14-33.2 , in that it failed to instruct that the jury must find that the assaults resulted in physical injury, the judgment was affirmed because there was plenary, uncontroverted evidence that both of the underlying assaults resulted in physical injuries; thus, defendant was not able to show that, absent the error, the jury probably would have returned different verdicts, and thus failed to establish plain error. State v. Garrison, 225 N.C. App. 170, 736 S.E.2d 610, 2013 N.C. App. LEXIS 65 (2013).

§ 14-34. Assaulting by pointing gun.

If any person shall point any gun or pistol at any person, either in fun or otherwise, whether such gun or pistol be loaded or not loaded, he shall be guilty of a Class A1 misdemeanor.

History. 1889, c. 527; Rev., s. 3622; C.S., s. 4216; 1969, c. 618, s. 21/2; 1993, c. 539, s. 17; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 507, s. 19.5(d).

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

CASE NOTES

Construction. —

Criminal offense penalized in G.S. 14-34 does not encompass the pointing of an imitation firearm because the literal language of G.S. 14-34 is ambiguous; the devices which one is forbidden to point at another are limited to items fairly characterized as firearms, not a broader category of devices, and in such circumstances, the rule of lenity suggests that the court should interpret the existing statutory language narrowly, leaving any expansion of the scope of the existing statutory language to the political, rather than the judicial, branch of government. In re N.T., 214 N.C. App. 136, 715 S.E.2d 183, 2011 N.C. App. LEXIS 1622 (2011).

Intentional Pointing Pistol Must Be Without Legal Justification. —

The literal provisions of this section are subject to the qualification that the intentional pointing of a pistol is in violation thereof only if done willfully, that is, without legal justification. Lowe v. Department of Motor Vehicles, 244 N.C. 353 , 93 S.E.2d 448, 1956 N.C. LEXIS 410 (1956); State v. Adams, 2 N.C. App. 282, 163 S.E.2d 1, 1968 N.C. App. LEXIS 914 (1968); State v. Spinks, 39 N.C. App. 340, 250 S.E.2d 90, 1979 N.C. App. LEXIS 2492 (1979).

Term “gun” as used in G.S. 14-34 encompasses devices ordinarily understood to be “firearms” and not other devices that fall outside that category because the word “gun” is an informal synonym for “firearm.” In re N.T., 214 N.C. App. 136, 715 S.E.2d 183, 2011 N.C. App. LEXIS 1622 (2011).

An officer, in making a lawful arrest, is not justified in pointing a loaded weapon at the person to be arrested except in good faith upon necessity, real or apparent. Lowe v. Department of Motor Vehicles, 244 N.C. 353 , 93 S.E.2d 448, 1956 N.C. LEXIS 410 (1956).

Legal justification must be made to appear, whether it be an individual who intentionally points a pistol at his assailant in the exercise of a perfect right of self-defense or an officer who does so in good faith in the discharge of his official duty and when necessary or apparently necessary either to defend himself or to make a lawful arrest or otherwise to perform his official duty. But the mere fact that he is an officer engaged in the performance of an official duty does not perforce exempt him from the provisions of this section. Lowe v. Department of Motor Vehicles, 244 N.C. 353 , 93 S.E.2d 448, 1956 N.C. LEXIS 410 (1956).

The pointing of a gun without legal justification is a violation of this section. State v. Walker, 34 N.C. App. 485, 238 S.E.2d 666, 1977 N.C. App. LEXIS 1724 (1977), cert. denied, 294 N.C. 445 , 241 S.E.2d 847, 1978 N.C. LEXIS 1284 (1978).

The rule is well established that a violation of this section requires the intentional pointing of a gun without legal justification or excuse. State v. Thornton, 43 N.C. App. 564, 259 S.E.2d 381, 1979 N.C. App. LEXIS 3098 (1979).

The pointing of a gun need only be done without legal justification to constitute assault under this section. In re J.A., 103 N.C. App. 720, 407 S.E.2d 873, 1991 N.C. App. LEXIS 933 (1991).

And Is Negligence Per Se. —

If any person intentionally points a pistol at any person, this action is in violation of this section and constitutes an assault. Moreover, such action, being in violation of the statute is negligence per se; and if the pistol accidentally discharges, the injured person may recover damages for actionable negligence. Lowe v. Department of Motor Vehicles, 244 N.C. 353 , 93 S.E.2d 448, 1956 N.C. LEXIS 410 (1956).

And Constitutes Assault with a Deadly Weapon. —

It is axiomatic that if the gun or pistol used is in fact a deadly weapon, then the pointing thereof is an assault with a deadly weapon. State v. Currie, 7 N.C. App. 439, 173 S.E.2d 49, 1970 N.C. App. LEXIS 1708 (1970).

If a pistol is a deadly weapon and is pointed at the person of another, then such pointing is an assault with a deadly weapon. State v. Reives, 29 N.C. App. 11, 222 S.E.2d 727, 1976 N.C. App. LEXIS 2364 , cert. denied, 289 N.C. 728 , 224 S.E.2d 675, 1976 N.C. LEXIS 1385 (1976).

The absence of legal justification is not an element of the offense to be established by the State; rather, the presence of legal justification is a defense which must arise upon the evidence. State v. Gullie, 96 N.C. App. 366, 385 S.E.2d 556, 1989 N.C. App. LEXIS 991 (1989).

Instruction on Legal Justification Not Required Absent Evidence. —

Although defendant relied upon the legal justification of self-defense, where the record revealed that defendant presented no evidence sufficient to invoke the benefit of the doctrine, and that instead, defendant’s case was entirely grounded upon his denial that he had a gun in his possession during the confrontation, this obviated the necessity for the court to instruct the jury on the issue of legal justification. State v. Gullie, 96 N.C. App. 366, 385 S.E.2d 556, 1989 N.C. App. LEXIS 991 (1989).

Gun Need Not Be Loaded. —

In an indictment for assault with a deadly weapon an instruction that if the State “had satisfied the jury beyond a reasonable doubt that the defendant pointed a pistol at the prosecutor, whether loaded or not, this would be an assault,” and to find the defendant guilty, was correct under the provisions of this section. State v. Atkinson, 141 N.C. 734 , 53 S.E. 228, 1906 N.C. LEXIS 154 (1906).

Pointing a gun at another under such circumstances as would not excuse its intentional discharge constitutes, in this and many other states, a statutory misdemeanor, and an accidental killing occasioned by it is manslaughter. In this State it is immaterial whether the gun is loaded or not. State v. Currie, 7 N.C. App. 439, 173 S.E.2d 49, 1970 N.C. App. LEXIS 1708 (1970).

Accidental Discharge of Pointed Gun Resulting in Death Constitutes Manslaughter. —

When one causes the death of another by an unlawful act which amounts to an assault on the person, as pointing a gun under circumstances which would not excuse its discharge, he is guilty at least of manslaughter. State v. Stitt, 146 N.C. 643 , 61 S.E. 566, 1908 N.C. LEXIS 279 (1908).

Where one points a loaded gun at another, though without intention of discharging it, if the gun goes off accidentally and kills, it is manslaughter. State v. Coble, 177 N.C. 588 , 99 S.E. 339, 1919 N.C. LEXIS 176 (1919); State v. Boldin, 227 N.C. 594 , 42 S.E.2d 897, 1947 N.C. LEXIS 471 (1947).

Where one engages in an unlawful and dangerous act, such as “fooling with an old gun”, i.e., using a loaded pistol in a careless and reckless manner, or pointing it at another, and kills the other by accident, he would be guilty of an unlawful homicide or manslaughter. State v. Hovis, 233 N.C. 359 , 64 S.E.2d 564, 1951 N.C. LEXIS 328 (1951); State v. Stimpson, 279 N.C. 716 , 185 S.E.2d 168, 1971 N.C. LEXIS 912 (1971).

With few exceptions, it may be said that every unintentional killing of a human being proximately caused by a wanton or reckless use of firearms, in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under circumstances not evidencing a heart devoid of a sense of social duty, is involuntary manslaughter. State v. Foust, 258 N.C. 453 , 128 S.E.2d 889, 1963 N.C. LEXIS 440 (1963).

If a person intentionally pointed the gun at the deceased and it was then discharged, inflicting the wound of which he died, or if the person was at the time guilty of culpable negligence in the way he handled and dealt with the gun, and by reason of such negligence the gun was discharged, causing the death of deceased, in either event the person would be guilty of manslaughter, and this whether the discharge of the gun was intentional or accidental. State v. Currie, 7 N.C. App. 439, 173 S.E.2d 49, 1970 N.C. App. LEXIS 1708 (1970).

If a person points a pistol at another in sport, as a joke, or to cause fright merely, believing and, perhaps, having some reason to think that it is not loaded, and subsequently pulls the trigger, causing the pistol to be discharged, and resulting in the killing of the person pointed at, he is guilty of manslaughter. State v. Currie, 7 N.C. App. 439, 173 S.E.2d 49, 1970 N.C. App. LEXIS 1708 (1970).

Question of Guilt for Jury. —

Where one pointed a gun at another and death ensued by its discharge evidence was sufficient to submit to the jury the question of the prisoner’s guilt or innocence of the crime of manslaughter. State v. Turnage, 138 N.C. 566 , 49 S.E. 913, 1905 N.C. LEXIS 301 (1905); State v. Limerick, 146 N.C. 649 , 61 S.E. 568 (1908).

Discharging Firearm into Occupied Building Distinguished. —

Since assault with a deadly weapon and assault by pointing a gun each involve the element of assault on a person, these two criminal offenses contain an element not essential to discharging a firearm into an occupied building and are not, therefore, lesser included offenses of that offense. State v. Bland, 34 N.C. App. 384, 238 S.E.2d 199, 1977 N.C. App. LEXIS 1704 (1977), cert. denied, 294 N.C. 183 , 241 S.E.2d 518, 1978 N.C. LEXIS 1203 (1978).

Pointing Pistol in Pocket. —

An instruction that if the jury were satisfied beyond a reasonable doubt that the defendant had a pistol in his coat pocket and “with pistol and hand on the inside of his pocket, he pointed the pistol at the prosecutor, this would be an assault,” is not error. State v. Atkinson, 141 N.C. 734 , 53 S.E. 228, 1906 N.C. LEXIS 154 (1906).

Airsoft Pistol Not A “Gun.” —

Trial court erred by finding defendant to be a delinquent juvenile based upon its finding that he was responsible for committing an assault by pointing an airsoft gun in violation of G.S. 14-34 because the airsoft pistol was not a “gun” for purposes of G.S.14-34; G.S. 14-34 does not permit the imposition of criminal or juvenile sanctions upon an individual who points an airsoft gun or other imitation firearm at another person. In re N.T., 214 N.C. App. 136, 715 S.E.2d 183, 2011 N.C. App. LEXIS 1622 (2011).

Defendant Charged with Communicating Threats and Assault Was Not Subject to Double Jeopardy. —

Where the defendant was charged with communicating threats and assault by pointing a gun, he was not subjected to double jeopardy, even though the charges arose out of the same incident, since the elements of the two offenses differed. State v. Evans, 40 N.C. App. 730, 253 S.E.2d 590, 1979 N.C. App. LEXIS 2346 (1979).

Where there was no evidence that defendant intentionally pointed his pistol at anyone this section did not apply, and an instruction that the violation of the statute, proximately resulting in injury and death, would constitute manslaughter, must be held for error. The State’s evidence of a statement by defendant to the effect that he was “dry firing” the pistol did not amount to evidence that defendant intentionally pointed the weapon at deceased, though it was competent upon the question of culpable negligence. State v. Kluckhohn, 243 N.C. 306 , 90 S.E.2d 768, 1956 N.C. LEXIS 362 (1956).

Evidence Sufficient. —

Defendant who pointed gun at the prosecutor was, under the circumstances, guilty of an assault at common law, if not under this section. State v. Scott, 142 N.C. 582 , 55 S.E. 69, 1906 N.C. LEXIS 293 (1906).

Evidence was sufficient to withstand defendant’s motion to dismiss a charge of assault by pointing a gun at the victim where the victim testified that defendant pointed a gun directly at her and told her not to move, and where the victim also identified defendant both in a photo lineup and in court as the person who pointed a gun at her. State v. McCree, 160 N.C. App. 200, 584 S.E.2d 861, 2003 N.C. App. LEXIS 1727 (2003).

Each conviction for assault by pointing a gun was supported by the evidence because the jury could reasonably have inferred that each individual who was in the house was corralled by defendant into a single bedroom and that defendant pointed his shotgun at each of them. State v. Pender, 243 N.C. App. 142, 776 S.E.2d 352, 2015 N.C. App. LEXIS 741 (2015).

Evidence Insufficient for Conviction for Two Separate Assaults. —

Because defendant’s two assault charges for pointing a gun and assault with a deadly weapon arose out of the acts of raising his gun and firing his gun that occurred in rapid succession and seemingly without interruption, the evidence was insufficient to convict him of two separate assaults; thus, his conviction for assault by pointing a gun was vacated. State v. Jones, 265 N.C. App. 644, 829 S.E.2d 507, 2019 N.C. App. LEXIS 497 (2019).

Variance Between Pleading and Proof. —

Where warrant charged defendant with assaulting prosecutrix with a deadly weapon, to wit, a pistol, by pointing the pistol at her, her testimony that the defendant pointed a “gun” at her was sufficient to carry the case to the jury as tending to show a violation of this section. State v. Barnes, 253 N.C. 711 , 117 S.E.2d 849, 1961 N.C. LEXIS 358 (1961).

§ 14-34.1. Discharging certain barreled weapons or a firearm into occupied property.

  1. Any person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class E felony.
  2. A person who willfully or wantonly discharges a weapon described in subsection (a) of this section into an occupied dwelling or into any occupied vehicle, aircraft, watercraft, or other conveyance that is in operation is guilty of a Class D felony.
  3. If a person violates this section and the violation results in serious bodily injury to any person, the person is guilty of a Class C felony.

History. 1969, c. 341; c. 869, s. 7; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; c. 755; 1993, c. 539, s. 1141; 1994, Ex. Sess., c. 24, s. 14(c); 2005-461, s. 1.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Purpose of Section. —

The protection of the occupant(s) of the building was the primary concern and objective of the General Assembly when it enacted this section. State v. Williams, 284 N.C. 67 , 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973).

This section was enacted for the protection of occupants of the premises, vehicles, and other property described in the statute. A violation is a serious crime. State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864, 1974 N.C. App. LEXIS 1859 (1974).

The purpose of this section is to protect occupants of the buildings, vehicles or other property described in the statute. State v. Mancuso, 321 N.C. 464 , 364 S.E.2d 359, 1988 N.C. LEXIS 102 (1988).

Relationship With Other Laws. —

Where defendant filed a Fed. R. Crim. P. 12(b) motion to dismiss pursuant to 8 U.S.C.S. § 1326(d), his conviction under G.S. 14-34.1(a) was an aggravated felony as it was a crime of violence under 18 U.S.C.S. § 16, and that was specifically adopted and imported into 8 U.S.C.S. § 1101(a)(43)(F). United States v. Lopez, 84 F. Supp. 3d 482, 2015 U.S. Dist. LEXIS 12421 (W.D.N.C. 2015), aff'd, 667 Fed. Appx. 837, 2016 U.S. App. LEXIS 14697 (4th Cir. 2016).

Conviction for Violating G.S. 14-34 Not a “Crime of Violence” Under Federal Sentencing Guidelines § 2L1.2. —

Defendant’s conviction for discharging a firearm into a building in violation of G.S. 14-34.1(a) was not a crime of violence within the meaning of U.S. Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) because the offense did not require that an offender use or attempt to use force against another person; the error was not harmless. United States v. Parral-Dominguez, 794 F.3d 440, 2015 U.S. App. LEXIS 12697 (4th Cir. 2015).

Construction with G.S. 14-34.5 . —

Defendant’s consecutive sentences for assault with a firearm on a law enforcement officer, in violation of G.S. 14-34.5 , and discharging a firearm into occupied property, in violation of G.S. 14-343.1, did not violate double jeopardy because one crime required proof of a law enforcement officer then performing his duties, and the other crime required proof of willful and wanton discharge of a firearm into occupied property, so different elements constituted each offense. State v. Sellers, 155 N.C. App. 51, 574 S.E.2d 101, 2002 N.C. App. LEXIS 1631 (2002).

Elements of Offense. —

The elements of the offense prohibited by this section are (1) the willful or wanton discharging (2) of a firearm (3) into any building (4) while it is occupied. State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322, 1991 N.C. App. LEXIS 1015 (1991).

Knowledge Requirement. —

Although this section does not contain an express knowledge requirement with respect to the building or vehicle being occupied, the Supreme Court has interpreted the section so as to add a knowledge requirement. State v. James, 342 N.C. 589 , 466 S.E.2d 710, 1996 N.C. LEXIS 20 (1996).

General Intent Crime — Intoxication No Defense. —

Discharging a firearm into a vehicle does not require that the State prove any specific intent but only that the defendant perform the act because it is a general intent crime. Since intoxication does not negate a general intent, it was not necessary for the court to charge on intent or intoxication as a defense. State v. Jones, 339 N.C. 114 , 451 S.E.2d 826, 1994 N.C. LEXIS 730 (1994), cert. denied, 515 U.S. 1169, 115 S. Ct. 2634, 132 L. Ed. 2d 873, 1995 U.S. LEXIS 4455 (1995).

When Section Violated. —

A person is guilty of the felony created by this section if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building with knowledge that the building is then occupied by one or more persons or when he has reasonable grounds to believe that the building might be occupied by one or more persons. State v. Williams, 284 N.C. 67 , 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973); State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864, 1974 N.C. App. LEXIS 1859 (1974); State v. Gunn, 24 N.C. App. 561, 211 S.E.2d 508, 1975 N.C. App. LEXIS 2431 , cert. denied, 286 N.C. 724 , 213 S.E.2d 724, 1975 N.C. LEXIS 1287 (1975); State v. Zigler, 42 N.C. App. 148, 256 S.E.2d 479, 1979 N.C. App. LEXIS 3707 (1979); State v. Hicks, 60 N.C. App. 718, 300 S.E.2d 33, 1983 N.C. App. LEXIS 2538 (1983); State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322, 1991 N.C. App. LEXIS 1015 (1991).

The repeated discharge of a firearm toward the house and the resultant striking of the house by the bullets so discharged is evidence of something more than the firing of a stray bullet which accidentally strikes the dwelling. Such conduct manifests an intentional disregard of and indifference to the rights and safety of others, and supports elements of the offense of discharging a firearm into an occupied dwelling to require its submission to the jury. State v. Watson, 66 N.C. App. 306, 311 S.E.2d 381, 1984 N.C. App. LEXIS 2846 (1984); State v. Cain, 79 N.C. App. 35, 338 S.E.2d 898, 1986 N.C. App. LEXIS 2019 , writ denied, 316 N.C. 380 , 342 S.E.2d 899, 1986 N.C. LEXIS 2124 (1986).

Trial court properly denied defendant’s motion to dismiss the charge of discharging a firearm into an occupied vehicle while in operation because defendant fired three shots at the victim’s pickup truck while both individuals were driving down the road, the “into property” element was satisfied when the bullet struck the truck’s toolbox, and while the bullet did not enter the vehicle through a standard part of the vehicle, such as the tailgate or the door, the bullet did strike the exterior of the vehicle, via the toolbox, which was fastened to the exterior of the truck and even sat inside the bed of the truck, adjacent to the wall of the truck’s passenger cabin. State v. Staton, 2021-NCCOA-427, 279 N.C. App. 57, 862 S.E.2d 883, 2021- NCCOA-427, 2021 N.C. App. LEXIS 437 , cert. denied, 379 N.C. 158 , 863 S.E.2d 604, 2021 N.C. LEXIS 1067 (2021).

Same — Building Must Be Occupied. —

This section is not violated unless the accused discharges or attempts to discharge the firearm into a building while it is occupied. State v. Williams, 284 N.C. 67 , 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973).

Porch Part Of Dwelling. —

Porch was a part of the dwelling for purposes of G.S.14-34.1 because it was attached to the dwelling and shared a common wall, and the trial court did not err in denying defendant’s motion to dismiss the charge of discharging a firearm into an occupied dwelling where there was substantial evidence that the porch was occupied; in addition to a building, a porch may be classified as a structure, erection, or enclosure within the meaning of the statute. State v. Miles, 223 N.C. App. 160, 733 S.E.2d 572, 2012 N.C. App. LEXIS 1196 (2012).

Occupied Automobile. —

A person is guilty of the felony created by this section if he intentionally, without legal justification or excuse, discharges a firearm into an occupied building when he has reasonable grounds to believe that the building might be occupied by one or more persons. State v. Watson, 66 N.C. App. 306, 311 S.E.2d 381, 1984 N.C. App. LEXIS 2846 (1984).

The State established that defendant discharged his firearm into an occupied vehicle where one victim testified that he was struck by a bullet while his right foot was still in the car, another victim was shot while sitting in the car, and there were bullet holes in the car. State v. Martin, 131 N.C. App. 38, 506 S.E.2d 260, 1998 N.C. App. LEXIS 1245 (1998).

Trial court did not err by denying defendant’s motion to dismiss a first degree murder charge based on the underlying felony of discharging a firearm into an occupied property because the State of North Carolina presented sufficient evidence, through the testimony of eyewitnesses and a forensic pathologist, that defendant was outside a vehicle when defendant discharged a firearm at a passenger in the vehicle. State v. Hicks, 241 N.C. App. 345, 772 S.E.2d 486, 2015 N.C. App. LEXIS 449 (2015).

Indictment Failed to Allege that Vehicle Was in Operation. —

Indictment was insufficient to support a conviction of discharging a firearm into an occupied vehicle in operation, G.S. 14-34.1(b), because it failed to allege that the vehicle was “in operation”; however, the indictment was sufficient to support a conviction as to the lesser offense of discharging a firearm into an occupied vehicle under G.S. 14-34.1(a). State v. Galloway, 226 N.C. App. 100, 738 S.E.2d 412, 2013 N.C. App. LEXIS 285 (2013).

A firearm can be discharged “into” occupied property even if the firearm itself is inside the property, so long as the person discharging it is not inside the property. State v. Mancuso, 321 N.C. 464 , 364 S.E.2d 359, 1988 N.C. LEXIS 102 (1988); State v. Bray, 321 N.C. 663 , 365 S.E.2d 571, 1988 N.C. LEXIS 225 (1988).

The trial court properly denied defendant’s motion to dismiss charges of discharging a firearm into occupied property under G.S. 14-34.1 ; there was substantial evidence from which a jury could have found that defendant fired “into” occupied property, as a witness indicated that although defendant was almost leaning inside the car, he was definitely standing outside and in the crease of the door when he shot the victim. State v. Alexander, 152 N.C. App. 701, 568 S.E.2d 317, 2002 N.C. App. LEXIS 972 (2002).

“Enclosure.” —

For the purposes of G.S. 14-34.1 , an apartment within an apartment building is an “area” that is “surrounded on all sides” or “closed in”; thus, an apartment is an enclosure as that term is used in G.S. 14-34.1 . State v. Cockerham, 155 N.C. App. 729, 574 S.E.2d 694, 2003 N.C. App. LEXIS 18 (2003).

Apartment. —

Where defendant was entirely inside his apartment unit when he fired a shot into an adjacent unit, defendant fired into occupied property within the meaning of G.S. 14-34.1 . State v. Cockerham, 155 N.C. App. 729, 574 S.E.2d 694, 2003 N.C. App. LEXIS 18 (2003).

Multiple Shots as Multiple Violations. —

Substantial evidence existed that defendant who killed his wife discharged his firearm into the victim’s truck seven times, therefore validating seven distinct violations of this section. State v. Nobles, 350 N.C. 483 , 515 S.E.2d 885, 1999 N.C. LEXIS 425 (1999).

Because the evidence showed that defendant fired seven shots toward the victim’s car and that one bullet hole was found in the victim’s car, it did not violate the double jeopardy clauses of the North Carolina and federal constitutions to impose three separate sentences for three counts of attempted discharge of a firearm into occupied property or to sentence defendant both for the three attempt counts and for one completed offense. Each shot fired at the victim’s car was a separate offense under G.S. 14-34.1 . State v. Hagans, 188 N.C. App. 799, 656 S.E.2d 704, 2008 N.C. App. LEXIS 259 (2008).

Testimony that three gun shots were fired in quick succession, each hitting a different location around the front door, and that neither of the guns potentially used were fully automatic tended to show that each of the three shorts for which second defendant was convicted was a distinct time; therefore, the second defendant’s three convictions did not violate the rule against double jeopardy. State v. Kirkwood, 229 N.C. App. 656, 747 S.E.2d 730, 2013 N.C. App. LEXIS 983 (2013).

Subsequent Shots as Aggravating Factor. —

In sentencing for discharging a firearm into occupied property, that defendant shot at least two times into the house could properly be used as a basis for aggravation. The crime of discharging a weapon into an occupied building is accomplished when the defendant shoots once into the structure, and any further acts of shooting are above and beyond that necessary to prove the offense for which defendant is convicted. State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322, 1991 N.C. App. LEXIS 1015 (1991).

Endangering Toddler. —

In sentencing for discharging a firearm into an occupied building, finding that the shooting endangered a two-year-old child could be considered as an additional nonstatutory aggravating factor. State v. Jones, 104 N.C. App. 251, 409 S.E.2d 322, 1991 N.C. App. LEXIS 1015 (1991).

Any rational trier of fact could have found that defendant intended to fire into vehicle in which victim was sitting when he was killed from evidence that defendant pointed his pistol toward the vehicle and fired the pistol so that a bullet went into the vehicle. State v. Wheeler, 321 N.C. 725 , 365 S.E.2d 609, 1988 N.C. LEXIS 229 (1988).

The attempt to draw a sharp line between a “willful” act and a “wanton” act in the context of this section would be futile. The elements of each are substantially the same. State v. Williams, 284 N.C. 67 , 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973); State v. Gunn, 24 N.C. App. 561, 211 S.E.2d 508, 1975 N.C. App. LEXIS 2431 , cert. denied, 286 N.C. 724 , 213 S.E.2d 724, 1975 N.C. LEXIS 1287 (1975).

Assault with Deadly Weapon Distinguished. —

Discharging a firearm into an occupied building and assault with a deadly weapon inflicting serious injury are entirely separate and distinct offenses. To prove the one, the State must show that defendant fired into an occupied building, an element which need not be shown to support the second charge. Likewise to prove the second charge, it must show the infliction of serious injury, which is not an element of the first charge. State v. Shook, 293 N.C. 315 , 237 S.E.2d 843, 1977 N.C. LEXIS 936 (1977).

Since discharging a firearm into an occupied vehicle is not essential to support an assault with a deadly weapon, and an assault on a person is not an essential element of discharging a firearm into an occupied vehicle, defendant was not placed in double jeopardy by receiving convictions for both offenses. State v. Messick, 88 N.C. App. 428, 363 S.E.2d 657, 1988 N.C. App. LEXIS 37 , cert. denied, 323 N.C. 368 , 373 S.E.2d 553, 1988 N.C. LEXIS 678 (1988).

Discharging a firearm into occupied property and assault with a deadly weapon with intent to kill inflicting serious injury are separate and distinct offenses which serve distinct purposes, and defendant was properly convicted of, and punished for, both offenses. State v. Morston, 336 N.C. 381 , 445 S.E.2d 1, 1994 N.C. LEXIS 311 (1994).

Assault with Deadly Weapon and Assault by Pointing Gun Are Not Lesser Included Offenses. —

Since assault with a deadly weapon and assault by pointing a gun each involve the element of assault on a person, these two criminal offenses contain an element not essential to discharging a firearm into an occupied building and are not, therefore, lesser included offenses of that offense. State v. Bland, 34 N.C. App. 384, 238 S.E.2d 199, 1977 N.C. App. LEXIS 1704 (1977), cert. denied, 294 N.C. 183 , 241 S.E.2d 518, 1978 N.C. LEXIS 1203 (1978).

Violation of this section is an unspecified felony within the purview of G.S. 14-17 . State v. Williams, 284 N.C. 67 , 199 S.E.2d 409, 1973 N.C. LEXIS 776 (1973).

And Can Result in Conviction of First-Degree Murder. —

A homicide committed in the perpetration of the felony under this section can result in conviction for murder in the first degree under the felony-murder rule of G.S. 14-17 . State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864, 1974 N.C. App. LEXIS 1859 (1974).

Conviction for first-degree felony murder based on the underlying felony of discharging a firearm into occupied property is proper. State v. Wall, 304 N.C. 609 , 286 S.E.2d 68, 1982 N.C. LEXIS 1227 (1982).

The offense of discharging a firearm into occupied property may serve as the underlying felony for a first-degree murder conviction based on the felony-murder rule. State v. King, 316 N.C. 78 , 340 S.E.2d 71, 1986 N.C. LEXIS 1892 (1986) (declining to adopt the “merger doctrine” to bar the application of the felony-murder rule to homicides committed during perpetration of the felony of discharging a firearm into occupied property) .

A person has committed the felony of firing into an occupied vehicle under this section, which will support a conviction of felony murder under G.S. 14-17 , if he intentionally, without legal justification or excuse, discharges a firearm into an occupied vehicle with knowledge that the vehicle is then occupied by one or more persons, or when he has reasonable grounds to believe that the vehicle might be occupied by one or more persons. State v. Wheeler, 321 N.C. 725 , 365 S.E.2d 609, 1988 N.C. LEXIS 229 (1988).

Jury could reasonably have found from the evidence that defendant’s continuing to drive while passenger repeatedly discharged his gun amounted to a disregard for the rights and safety of others that proximately caused victim’s death, and could, therefore, based on this evidence, have reasonably found her guilty of involuntary manslaughter. State v. Thomas, 325 N.C. 583 , 386 S.E.2d 555, 1989 N.C. LEXIS 597 (1989).

Discharging a firearm into an occupied structure is a felony which will support a first degree felony murder prosecution. When persons act in concert to commit the felony of discharging a firearm into an occupied structure, each person is guilty not only of that felony but for any homicide committed in its perpetration. State v. Thomas, 325 N.C. 583 , 386 S.E.2d 555, 1989 N.C. LEXIS 597 (1989).

No double jeopardy existed where defendant was convicted of both discharging a firearm into a vehicle and felony murder, because North Carolina does not recognize the merger doctrine. State v. Jackson, 189 N.C. App. 747, 659 S.E.2d 73, 2008 N.C. App. LEXIS 689 (2008), cert. denied, 555 U.S. 1215, 129 S. Ct. 1532, 173 L. Ed. 2d 662, 2009 U.S. LEXIS 1704 (2009).

Evidence was sufficient to submit a first-degree felony murder charge under the felony murder rule under G.S. 14-17 based on discharging a firearm into an occupied vehicle under G.S. 14-34.1 because defendant admitted that he drove his vehicle into a wooded area off the roadway and fired repeated shots at the victim’s truck as it drove by. State v. Hunt, 198 N.C. App. 488, 680 S.E.2d 720, 2009 N.C. App. LEXIS 1344 (2009), cert. dismissed, 368 N.C. 926 , 786 S.E.2d 919, 2016 N.C. LEXIS 522 (2016).

Felony Murder. —

Defendant was not prejudiced by his counsel’s failure to argue that it was error to instruct the jury on felony murder based on the underlying felony of discharging a weapon into occupied property given that defendant only fired a single shot at a single victim, and therefore the trial court erred by granting defendant’s motion for appropriate relief and vacating his convictions of first-degree murder and discharging a weapon into occupied property, because no legal authority existed in North Carolina that would have prohibited defendant’s felony murder conviction from being predicated on the crime of discharging a weapon into occupied property. State v. Spruiell, 252 N.C. App. 486, 798 S.E.2d 802, 2017 N.C. App. LEXIS 226 (2017).

Solicitation to commit shooting into occupied property. —

Court affirmed defendant’s conviction of solicitation to commit shooting into occupied property; it was not plain error for the trial court to admit testimony about defendant’s alleged threats to kill and engage in a swap of drugs for stolen goods with a detective because given the strength of the other evidence that defendant solicited the shooting, the admission was not fundamental error, and the admission of other testimony from the detective was offered to provide background to the meeting between the detective, defendant, and defendant’s friend and was not so prejudicial that it resulted in a miscarriage of justice. State v. Benardello, 164 N.C. App. 708, 596 S.E.2d 358, 2004 N.C. App. LEXIS 974 (2004).

Indictment. —

An indictment under this section, which charges the offense substantially in the words of the statute, contains allegations sufficient to apprise an accused of the offense with which he is charged and to enable the court to proceed to judgment. State v. Walker, 34 N.C. App. 271, 238 S.E.2d 154, 1977 N.C. App. LEXIS 1653 , cert. denied, 293 N.C. 743 , 241 S.E.2d 516, 1977 N.C. LEXIS 1036 (1977).

Indictment which failed to state that the defendant knew or should have known that the dwelling was occupied by one or more persons was not defective, and the trial court did not err in denying the defendant’s motion to dismiss for failure of the indictment to charge a crime under this section. State v. Walker, 34 N.C. App. 271, 238 S.E.2d 154, 1977 N.C. App. LEXIS 1653 , cert. denied, 293 N.C. 743 , 241 S.E.2d 516, 1977 N.C. LEXIS 1036 (1977).

Although the crime of discharging a firearm into occupied property was listed as a Class E felony on defendant’s indictment, the specific description of the crime using the word “residence” put defendant on notice that the crime charged was actually a Class D felony under G.S. 14-34.1(b) because the term “residence” as used in the indictment was synonymous with “dwelling” as used in G.S. 14-34.1(b). State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129, 2010 N.C. App. LEXIS 684 (2010).

Body of the superseding indictment sufficiently charged defendant in the words of the statute by alleging that he willfully discharged a firearm into an occupied apartment because the plain meaning of “apartment” included “dwelling,” as it was defined as a room or set of rooms fitted especially with housekeeping facilities and usually leased as a dwelling. State v. Bryant, 244 N.C. App. 102, 779 S.E.2d 508, 2015 N.C. App. LEXIS 962 (2015).

Body of the superseding indictment sufficiently charged defendant with violating the statute because although the superseding indictment referenced G.S. 14-34 , it did not constitute a fatal defect as to the validity of the indictment; defendant was put on reasonable notice as to the charge against him. State v. Bryant, 244 N.C. App. 102, 779 S.E.2d 508, 2015 N.C. App. LEXIS 962 (2015).

Indictment charged that defendant discharged a handgun into an occupied structure with the intent to incite fear in others; the indictment attempted to charge defendant with violating the statute, but failed to accurately do so by alleging that he discharged a firearm into an occupied structure, not within, and thus the indictment was insufficient to confer jurisdiction upon the trial court, and judgment entered upon his conviction for discharging a firearm from within a building with the intent to incite fear was vacated. State v. McLean, 251 N.C. App. 850, 796 S.E.2d 804, 2017 N.C. App. LEXIS 47 (2017).

Indictment was not fatally defective, and the appellate court need not arrest judgment because the statutory reference on an indictment was surplusage and could be disregarded; the body of defendant’s indictment charged him with unlawfully, willfully, and feloniously discharging a firearm into an occupied dwelling; the indictment clearly identified the crime being charged; and defendant could not complain that he was unaware of the acts for which he was charged and, if anything, benefited by the State’s decision to proceed under the offense that did not involve serious bodily injury as it reduced his level of punishment from a Class C to a Class D felony. State v. Jones, 265 N.C. App. 644, 829 S.E.2d 507, 2019 N.C. App. LEXIS 497 (2019).

Prosecution on two counts of discharging a firearm into occupied property did not violate double jeopardy provisions, even though 3606 and 3608 Jonquil Street were apartments located within the same building; the facts alleged in the second count of the indictment — that the building was located at 3608 Jonquil Street and was occupied by one set of victims — would not have sustained defendant’s conviction for shooting into 3606 Jonquil while that residence was occupied by another set of victims. State v. Ray, 97 N.C. App. 621, 389 S.E.2d 422, 1990 N.C. App. LEXIS 206 (1990).

Intentional Shooting Can Result in Involuntary Manslaughter. —

It is not true that in order to entitle defendant to an instruction on involuntary manslaughter, the discharge of a weapon must necessarily be unintentional. An intentional shooting at an object can amount to culpable negligence, which is one of the states of mind required for an instruction on involuntary manslaughter. State v. Brewer, 325 N.C. 550 , 386 S.E.2d 569, 1989 N.C. LEXIS 604 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541, 1990 U.S. LEXIS 2638 (1990).

Instruction on Involuntary Manslaughter Not Warranted. —

In trial for first degree murder by reason of killing during the perpetration of a felony, evidence was sufficient to support a finding that defendant intended to shoot into residence within the meaning of this section and since defendant presented no evidence of involuntary manslaughter, trial judge did not err in failing to submit involuntary manslaughter as a possible verdict. State v. Clark, 325 N.C. 677 , 386 S.E.2d 191, 1989 N.C. LEXIS 599 (1989).

In felony murder trial for murder committed during the act of discharging a firearm into an occupied building, a felony under this section, where defendant’s sole and unequivocal defense was that he was nowhere near the area on the night in question, an instruction on the offense of involuntary manslaughter was not warranted by the evidence. State v. Brewer, 325 N.C. 550 , 386 S.E.2d 569, 1989 N.C. LEXIS 604 (1989), cert. denied, 495 U.S. 951, 110 S. Ct. 2215, 109 L. Ed. 2d 541, 1990 U.S. LEXIS 2638 (1990).

Instruction on Involuntary Manslaughter Required. —

In a prosecution for first degree felony murder on the theory that murder occurred while defendant was driving due to the discharge by her passenger of a firearm into an occupied structure in violation of this section, the trial court erred in failing to submit to the jury an alternative verdict of guilty of involuntary manslaughter. State v. Thomas, 325 N.C. 583 , 386 S.E.2d 555, 1989 N.C. LEXIS 597 (1989).

Instruction on Diminished Capacity. —

In a felony murder case, the trial court did not err by declining to give a diminished capacity instruction on the charge of discharging a firearm into occupied property. State v. Maldonado, 241 N.C. App. 370, 772 S.E.2d 479, 2015 N.C. App. LEXIS 442 (2015).

Instruction Held Proper. —

Where the court instructed the jury that the intent required under this section was a specific intent which could be negated by the voluntary intoxication of the defendant, the charge to the jury is free from prejudicial error. State v. Gunn, 24 N.C. App. 561, 211 S.E.2d 508, 1975 N.C. App. LEXIS 2431 , cert. denied, 286 N.C. 724 , 213 S.E.2d 724, 1975 N.C. LEXIS 1287 (1975).

Where the trial judge specifically instructed the jury that before it could find the defendant guilty it must find beyond a reasonable doubt that the defendant acted “intentionally,” this was clearly proper. State v. Gunn, 24 N.C. App. 561, 211 S.E.2d 508, 1975 N.C. App. LEXIS 2431 , cert. denied, 286 N.C. 724 , 213 S.E.2d 724, 1975 N.C. LEXIS 1287 (1975).

A correct charge under this section would provide that the accused would be guilty if the defendant intentionally, without legal justification or excuse, discharged a firearm into an occupied vehicle with knowledge that the vehicle was occupied by one or more persons or when he had reasonable grounds to believe that the vehicle might be occupied by one or more persons. State v. Tanner, 25 N.C. App. 251, 212 S.E.2d 695, 1975 N.C. App. LEXIS 2232 (1975).

A correct charge would provide that the accused would be guilty if he intentionally, without legal justification or excuse, discharged a firearm into an occupied building with knowledge that the building was then occupied by one or more persons, or when the accused had reasonable grounds to believe that the building might be occupied by one or more persons. State v. Burris, 27 N.C. App. 656, 219 S.E.2d 807, 1975 N.C. App. LEXIS 1935 (1975).

Although a preferable instruction to the jury would use the language “intentionally discharged a firearm,” there was no prejudicial error by the use of the language “intentionally used a firearm.” State v. Swift, 290 N.C. 383 , 226 S.E.2d 652, 1976 N.C. LEXIS 1084 (1976).

Trial court properly instructed the jury on theory of acting in concert in prosecution for discharging a firearm into an occupied dwelling, where there was evidence tending to show that defendant and two companions were standing together at the scene of the incident and all were armed; that after a shot was fired from victims’ dwelling, defendant and his companions all fired shots; that a witness saw all three men fire shots at the dwelling but could not tell whose shots struck the dwelling, and that defendant made conflicting statements as to whether he had fired into the dwelling or had fired only into the air. State v. Musselwhite, 54 N.C. App. 68, 283 S.E.2d 149, 1981 N.C. App. LEXIS 2792 (1981), aff'd, 305 N.C. 295 , 287 S.E.2d 897, 1982 N.C. LEXIS 1268 (1982).

In a case in which defendant was convicted of discharging a firearm into occupied property, in violation of G.S. 14-34.1 , she unsuccessfully argued on appeal that the trial court erred by providing a jury instruction on transferred intent because it inaccurately informed the jury of the elements of discharging a firearm into occupied property. It was clear from the record that the jury was properly instructed that the State was required to prove knowledge that the home was occupied before finding defendant guilty of the charge. State v. Small, 201 N.C. App. 331, 689 S.E.2d 444, 2009 N.C. App. LEXIS 2233 (2009).

Trial court properly instructed a jury under G.S. 14-34.1(b), as it was a general intent crime, and defendant’s intentional firing of a shotgun when defendant had reason to believe a school bus defendant ended up shooting was occupied was willful and wanton conduct. State v. McLean, 211 N.C. App. 321, 712 S.E.2d 271, 2011 N.C. App. LEXIS 705 (2011).

Defendant could not establish that the trial court’s jury instruction that the State was not required to prove that he intentionally discharged a firearm at a victim or at the occupied property was made in error, much less plain error, because there was sufficient evidence presented that defendant intentionally discharged a pistol as recounted by several witnesses. State v. Bryant, 244 N.C. App. 102, 779 S.E.2d 508, 2015 N.C. App. LEXIS 962 (2015).

Instruction Held Erroneous. —

It was held that an instruction to the jury on a charge under this section was erroneous where it contained provision that the jury must find that “the gun was discharged; and first and last, that the defendant acted willfully or wantonly which means that he must have known that one or more persons were in the dwelling or apartment,” in that it equated willful and wanton conduct with knowledge of occupancy of the building. State v. Williams, 21 N.C. App. 525, 204 S.E.2d 864, 1974 N.C. App. LEXIS 1859 (1974).

Instruction that equates willful and wanton conduct with knowledge of occupancy of the building and thereby attempts to condense two separate elements of the crime into one is in error. State v. Furr, 26 N.C. App. 335, 215 S.E.2d 840, 1975 N.C. App. LEXIS 2043 (1975).

In a prosecution for willfully or wantonly discharging a firearm into an occupied dwelling in violation of this section, the trial court erred in giving an instruction which equated willful or wanton conduct with knowledge that the house in question was occupied by one or more persons when the defendant fired the shot. State v. Leeper, 27 N.C. App. 420, 219 S.E.2d 253, 1975 N.C. App. LEXIS 1873 (1975).

Defendant was awarded a new trial on charges of discharging a firearm into occupied property because the trial court, when it gave the final mandate as to the charge, did not instruct the jury that it could return a verdict of not guilty as to that charge if it found that defendant acted in self-defense. Further, because there was evidence that defendant was not the initial aggressor and his right to stand his ground was at least a substantial feature of his defense of self-defense; the trial court’s failure to instruct the jury that defendant had no duty to retreat was plain error. State v. Davis, 177 N.C. App. 98, 627 S.E.2d 474, 2006 N.C. App. LEXIS 696 (2006).

Clerical Error in Sentencing. —

Where a trial court noted that defendant was being sentenced for a Class D offense of discharging a firearm into an occupied dwelling, and then sentenced defendant accordingly, its reference to G.S. 14-34.1(a) was merely a clerical error and did not affect the sentencing defendant received. State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129, 2010 N.C. App. LEXIS 684 (2010).

Multiple Convictions Justified. —

Having examined the indictments and the underlying facts of each conviction, Supreme Court concluded that defendant’s conviction and sentencing on three counts of discharging a firearm into occupied property did not violate double jeopardy principles. State v. Rambert, 341 N.C. 173 , 459 S.E.2d 510, 1995 N.C. LEXIS 375 (1995), limited, State v. Dew, 379 N.C. 64 , 864 S.E.2d 268, 2021- NCSC-124, 2021 N.C. LEXIS 1010 (2021).

Multiple Convictions Not Justified. —

Defendant’s first-degree burglary conviction would be reversed where the State failed to allege that dwelling house was occupied at the time of breaking and entering and where the offense of burglary and the offense of discharging a firearm into occupied property were mutually exclusive, since defendant could not be entering the dwelling and firing “into” it from the outside at the same time. State v. Surcey, 139 N.C. App. 432, 533 S.E.2d 479, 2000 N.C. App. LEXIS 899 (2000).

Illustrative Case. —

The evidence supported defendant’s conviction under this section, where the victim testified that she personally saw the defendant shoot into her residence, and her testimony was corroborated by her previous statement to the police. State v. Davis, 130 N.C. App. 675, 505 S.E.2d 138, 1998 N.C. App. LEXIS 1152 (1998).

Evidence Held Sufficient. —

Victim’s testimony that defendant continued shooting after he entered the apartment was sufficient to support a conviction for discharging a firearm into occupied property. State v. Silas, 168 N.C. App. 627, 609 S.E.2d 400, 2005 N.C. App. LEXIS 456 (2005), aff'd in part, modified, 360 N.C. 377 , 627 S.E.2d 604, 2006 N.C. LEXIS 26 (2006).

Substantial evidence existed from which a jury could have found that defendant had reasonable grounds to believe that the restaurant was occupied when he fired the shots in its direction; prior to the subject incident, the restaurant had stayed open until 3:00 a.m., and the restaurant was located in an area where other establishments were open until the early morning hours. State v. Everette, 172 N.C. App. 237, 616 S.E.2d 237, 2005 N.C. App. LEXIS 1437 (2005), aff'd in part and rev'd in part, 361 N.C. 646 , 652 S.E.2d 241, 2007 N.C. LEXIS 1107 (2007), Goldston v. State, 173 N.C. App. 416, 618 S.E.2d 785, 2005 N.C. App. LEXIS 2012 (2005).

Trial court properly denied defendant’s motions for dismissal and to set aside the verdict on a charge of discharging a firearm into an occupied property, in violation of G.S. 14-34.1 , as there was sufficient evidence to present the charge to the jury and sufficient evidence to uphold the verdict, based on defendant having fired shots into a restaurant in the early morning hours, resulting in damage to the property; the restaurant was closed at the time but the lights were still on although turned down, other nearby establishments were still open, and there were people crowding the streets near the premises, such that it was inferrable that defendant had reasonable grounds to believe that the premises might have been occupied when the shots were fired. State v. Everette, 361 N.C. 646 , 652 S.E.2d 241, 2007 N.C. LEXIS 1107 (2007).

Testimony that defendant intended to discharge the gun and that a bullet penetrated an exterior apartment wall was sufficient to support defendant’s conviction for felony discharging a firearm into an occupied property under G.S. 14-34.1 . State v. Canady, 191 N.C. App. 680, 664 S.E.2d 380, 2008 N.C. App. LEXIS 1498 (2008).

In a case in which defendant was convicted of discharging a firearm into occupied property, she argued unsuccessfully that there was insufficient evidence to support the firearm conviction because the State failed to present evidence that the firearm discharged by defendant met the requisite velocity specifications set forth in G.S. 14-34.1(a). Defendant had discharged a shotgun, and the most reasonable interpretation was that all firearms were implicated in the statute, but only certain barreled weapons were included—those with a muzzle velocity of at least 600 feet per second; the legislature included the traditional firearm in the statute, but further included other barreled weapons that have a propensity to penetrate a structure and injure occupants. State v. Small, 201 N.C. App. 331, 689 S.E.2d 444, 2009 N.C. App. LEXIS 2233 (2009).

State presented substantial evidence of an agreement for defendant to discharge a firearm into an occupied building, in a case where defendant fired a gun at a person in front of a school gymnasium in a drive-by shooting. State v. Dubose, 208 N.C. App. 406, 702 S.E.2d 330, 2010 N.C. App. LEXIS 2426 (2010).

Substantial evidence of each of the elements of the charged offense of discharging a firearm into an occupied vehicle in operation, G.S. 14-34.1(b), where the victim testified unequivocally that, on the date in question, the windows of his vehicle were down, defendant removed a “small caliber gun” from his pocket and fired it in the direction of his vehicle, and one round had been fired from a firearm recovered near defendant at the time of his arrest; although defendant argued that it would have been physically impossible for him to shoot into the victim’s vehicle based upon where he was standing at the time of the shooting, based on the evidence in the record, defendant’s position relative to the vehicle at the time of the shooting was a factual determination reserved for the jury. State v. Galloway, 226 N.C. App. 100, 738 S.E.2d 412, 2013 N.C. App. LEXIS 285 (2013).

Evidence that first defendant was the driver of the vehicle seen leaving the incident, first defendant fled from the police, first defendant made a statement showing knowledge of the location of the shooting, and gun residue was found on the first defendant supported the finding that the first defendant was the perpetrator or coconspirator of the charged offenses. State v. Kirkwood, 229 N.C. App. 656, 747 S.E.2d 730, 2013 N.C. App. LEXIS 983 (2013).

Evidence that parts of defendant were outside the vehicle when he shot the victim was sufficient to support a finding he discharged a firearm into occupied property, the felony underlying the felony murder count. State v. Mitchell, 240 N.C. App. 246, 770 S.E.2d 740, 2015 N.C. App. LEXIS 274 (2015).

Evidence was sufficient to convict defendant of discharging a firearm into a dwelling that he knew to be occupied because an eyewitness testified that, before discharging his firearm, defendant stepped out of his car and loudly “called out” the individuals inside the victim’s house, challenging them to come outside; and the eyewitness had been standing in the doorway of the victim’s house when defendant drove past the dwelling. State v. Jones, 265 N.C. App. 644, 829 S.E.2d 507, 2019 N.C. App. LEXIS 497 (2019).

Evidence was sufficient to convict defendant of seven separate acts of discharging a firearm into an occupied vehicle because defendant’s actions did not constitute a single episode of rapid gunfire but, rather, separate and distinct acts that occurred over a period of time within which defendant started firing, the women defendant was chasing jumped into the victim’s truck, and one of the women told the victim to “go,” and then had a short exchange with her boyfriend on the phone before more shots were fired at the truck as it sped away. State v. Morrison, 272 N.C. App. 656, 847 S.E.2d 238, 2020 N.C. App. LEXIS 569 (2020).

No Plain Error. —

Although the trial court erred in admitting an arrest warrant into evidence, it did not amount to plain error because there was testimony from more than one witness indicating that defendant intentionally discharged his pistol; testimony from a firearms analyst confirmed that the bullet found in the wall of the apartment occupied by the victim was discharged from the black pistol entered into evidence. State v. Bryant, 244 N.C. App. 102, 779 S.E.2d 508, 2015 N.C. App. LEXIS 962 (2015).

Admission of Arrest Warrant Not Plain Error. —

Although the trial court erred in admitting an arrest warrant into evidence, it did not amount to plain error because there was testimony from more than one witness indicating that defendant intentionally discharged his pistol; testimony from a firearms analyst confirmed that the bullet found in the wall of the apartment occupied by the victim was discharged from the black pistol entered into evidence. State v. Bryant, 244 N.C. App. 102, 779 S.E.2d 508, 2015 N.C. App. LEXIS 962 (2015).

After the defendant fired a single shot into a single vehicle occupied by two people while the vehicle was in operation, resulting in serious bodily injury to one occupant, and the jury returned verdicts finding the defendant guilty of violating subsections (a) and (b) of G.S. 14-34.1 based upon that single shot into a single occupied vehicle, the trial court was required to arrest judgment on the conviction of the lesser offense and impose judgment only upon the elevated Class C felony based on the resulting serious bodily injury. State v. Miller, 267 N.C. App. 639, 833 S.E.2d 644, 2019 N.C. App. LEXIS 796 (2019).

Sentence Held Proper. —

Trial court’s judgment sentencing defendant for the Class D felony of discharging a firearm into an occupied dwelling was consistent with the record and the jury’s guilty verdict finding him guilty of felonious discharging a firearm into an occupied property as the State abandoned the serious bodily injury portion of the offense before charging the jury. State v. Jones, 265 N.C. App. 644, 829 S.E.2d 507, 2019 N.C. App. LEXIS 497 (2019).

§ 14-34.2. Assault with a firearm or other deadly weapon upon governmental officers or employees, company police officers, or campus police officers.

Unless a person’s conduct is covered under some other provision of law providing greater punishment, any person who commits an assault with a firearm or any other deadly weapon upon an officer or employee of the State or of any political subdivision of the State, a company police officer certified pursuant to the provisions of Chapter 74E of the General Statutes, or a campus police officer certified pursuant to the provisions of Chapter 74G, Article 1 of Chapter 17C or Chapter 116 of the General Statutes, in the performance of his duties shall be guilty of a Class F felony.

History. 1969, c. 1134; 1977, c. 829; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1981, c. 535, s. 1; 1991, c. 525, s. 2; 1993, c. 539, s. 1142; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 687, s. 2; 1995, c. 507, s. 19.5(i); 2005-231, s. 6.1.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws, 2005-231, s. 6.1, effective July 28, 2005, inserted “Chapter 74G” near the end of the section.

CASE NOTES

Effect of Use of Excessive Force by Officer in Making Lawful Arrest. —

While the use of excessive force in a lawful arrest may subject a law-enforcement officer to civil or criminal liability, it does not take the officer outside the performance of his duties for purposes of this section. State v. Irick, 291 N.C. 480 , 231 S.E.2d 833, 1977 N.C. LEXIS 1217 (1977).

In all cases where the charge was assault on a law officer in violation of former G.S. 14-33(b)(4), or assault on a law officer with a firearm (this section), the use of excessive force by the law officer in making an arrest or preventing escape from custody does not take the officer outside the performance of his duties, nor does it make the arrest unlawful. State v. Mensch, 34 N.C. App. 572, 239 S.E.2d 297, 1977 N.C. App. LEXIS 1771 (1977), cert. denied, 294 N.C. 443 , 241 S.E.2d 845, 1978 N.C. LEXIS 1274 (1978).

State Need Not Prove Lack of Excessive Force. —

In a prosecution for assault on a police officer, it is not incumbent upon the State to prove that the law officer did not use excessive force in making an arrest. State v. Mensch, 34 N.C. App. 572, 239 S.E.2d 297, 1977 N.C. App. LEXIS 1771 (1977), cert. denied, 294 N.C. 443 , 241 S.E.2d 845, 1978 N.C. LEXIS 1274 (1978).

Assault May Be Justified If Excessive Force Used. —

Where there is evidence tending to show the use of excessive force by the law officer in making an arrest, the trial court should instruct the jury that the assault by the defendant upon the law officer was justified or excused if the assault was limited to the use of reasonable force by the defendant in defending himself from that excessive force. State v. Mensch, 34 N.C. App. 572, 239 S.E.2d 297, 1977 N.C. App. LEXIS 1771 (1977), cert. denied, 294 N.C. 443 , 241 S.E.2d 845, 1978 N.C. LEXIS 1274 (1978).

Prosecution Under This Section and § 14-32 Not Double Jeopardy. —

Prosecution of defendants under this section for assault on a law-enforcement officer with a firearm and under G.S. 14-32 for assault with a deadly weapon with intent to kill did not violate the prohibition against double jeopardy, nor did it require the State to elect prosecution under a single statute, though the facts underlying defendants’ indictment under each statute were the same, since each offense required proof of an element which did not exist in the other charge. State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, 1980 N.C. App. LEXIS 3231 (1980).

Where a defendant was charged and convicted for assault upon a law officer with a firearm while he was in the performance of his duties and also for assault on the same officer with a deadly weapon with intent to kill inflicting serious injuries, the defendant was not placed in double jeopardy, however, judgment was arrested in the case charging the lesser included offense of assault upon the officer with a firearm while he was in the performance of his duties because the constitutional guarantee against double jeopardy protects a defendant from multiple punishment for the same offense. State v. Byrd, 50 N.C. App. 736, 275 S.E.2d 522, 1981 N.C. App. LEXIS 2206 (1981).

Cumulative punishments for offenses arising from the same act did not violate double jeopardy, where the defendant was convicted for assault with a deadly weapon with intent to kill and assault with a deadly weapon on a law enforcement officer, but each offense required proof of an element the other did not and the legislative purposes underlying the offenses were distinct. State v. Coria, 131 N.C. App. 449, 508 S.E.2d 1, 1998 N.C. App. LEXIS 1383 (1998).

Where the facts underlying the jury’s guilty verdict for assault with a deadly weapon on a government official in violation of G.S. 14-34.2 were not the same facts underlying the jury’s verdict of guilty for assault with a deadly weapon in violation of G.S. 14-32 , and where the evidence showed that defendant completed the first assault on an officer by driving a truck over the officer’s leg just before the officer pulled defendant from the truck and then completed the second instance of assault independently of the first assault by reentering the vehicle and driving it toward the officer, defendant’s convictions on both charges did not violate double jeopardy; neither U.S. Const. amend. XIV nor N.C. Const. Art. I, § 19, forbade the prosecution and punishment of defendant for those two separate and distinct crimes. State v. Spellman, 167 N.C. App. 374, 605 S.E.2d 696, 2004 N.C. App. LEXIS 2380 (2004).

And Election Between Charges Not Required. —

The trial court did not err in denying defendant’s pretrial motion to require the State to elect between the charges of felonious assault with a deadly weapon upon a law-enforcement officer in the performance of his duties and felonious assault with a deadly weapon with intent to kill inflicting serious injury since a defendant may be charged with more than one offense based on a given course of conduct, and even when an election ultimately will be necessary, the State is not required to elect prior to the introduction of evidence. State v. Ward, 301 N.C. 469 , 272 S.E.2d 84, 1980 N.C. LEXIS 1189 (1980).

Assault with Deadly Weapon Is Lesser Included Offense. —

Where defendants were charged with assault on a law-enforcement officer with a firearm and assault with a deadly weapon with intent to kill, arrest of judgment upon their conviction of the lesser offense of assault with a deadly weapon was required, since assault and the use of a deadly weapon were necessarily included in the offense of assault on a law-enforcement officer with a firearm, and this result would punish defendants twice for the same offense. State v. Partin, 48 N.C. App. 274, 269 S.E.2d 250, 1980 N.C. App. LEXIS 3231 (1980).

Defendant was not entitled to a jury instruction on the lesser offense of misdemeanor assault on a government official under G.S. 14-33(c)(4) because defendant used a deadly weapon — his car — when he drove into a deputy’s car; thus the evidence only supported the charge of felony assault on a government official under G.S. 14-34.2 . State v. Batchelor, 167 N.C. App. 797, 606 S.E.2d 422, 2005 N.C. App. LEXIS 9 (2005).

Failure to Instruct Jury on Lesser-Included Offense of Misdemeanor Assault of Government Official Was Reversible Error. —

Trial court erred in failing to submit the lesser-included offense of misdemeanor assault on a government official to the jury and this failure amounted to prejudicial error that could not be cured by defendant’s subsequent conviction for felony assault with a deadly weapon on a government official because it could not be known whether the jury would have convicted defendant of a lesser degree if so permitted. State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29, 2007 N.C. App. LEXIS 1978 (2007).

Jury Instruction on Box-Cutter as a Deadly Weapon Was Not Error. —

Officers’ testimony supported the trial court’s instruction to the jury that a razor knife (box-cutter) was a deadly or dangerous weapon as a matter of law, for the purpose of the charge of assault with a deadly weapon against government officers, because the assaulted officers testified that defendant lunged at them in an attempt to cut them and kept charging at them. State v. Doisey, 162 N.C. App. 447, 590 S.E.2d 886, 2004 N.C. App. LEXIS 188 (2004).

The trial court erred by amending the jury verdict after deliberation to enhance the defendant’s conviction to the felony of assault with a deadly weapon upon a government official, pursuant to this section, where the trial court only instructed the jury on the charge of assault on a government official and the State’s motion to amend the verdict did not comport with any of the challenges allowable under G.S. 15A-1240 . State v. Brogden, 137 N.C. App. 579, 528 S.E.2d 391, 2000 N.C. App. LEXIS 423 (2000).

Intent Is Presumed from Act. —

In order to return a verdict of guilty of assault with a firearm upon a law-enforcement officer in the performance of his duties, the jury is not required to find the defendant possessed any intent beyond the intent to commit the unlawful act, and this will be inferred or presumed from the act itself. State v. Mayberry, 38 N.C. App. 509, 248 S.E.2d 402, 1978 N.C. App. LEXIS 2228 (1978).

Intent was sufficiently established by evidence that defendant operated a truck dangerously while an officer was hanging on the window and that defendant had a reckless disregard for the safety of the officer; defendant’s motion to dismiss for lack of evidence of intent was properly denied since the State did not have to establish actual intent where such intent could be inferred from defendant’s conduct. State v. Spellman, 167 N.C. App. 374, 605 S.E.2d 696, 2004 N.C. App. LEXIS 2380 (2004).

The diminished capacity defense is not available to negate the general intent required for a conviction of assault with a deadly weapon on a government officer. State v. Page, 346 N.C. 689 , 488 S.E.2d 225, 1997 N.C. LEXIS 488 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 651, 1998 U.S. LEXIS 185 (1998).

The indictment need not allege the particular duty, but need only allege that the law enforcement officer was performing a duty of his office at the time the assault occurred. State v. Bethea, 71 N.C. App. 125, 321 S.E.2d 520, 1984 N.C. App. LEXIS 3805 (1984).

This is no compelling reason to insist that an indictment charging the felony offense of assault with a firearm on a law enforcement officer performing a duty of his office should require more, as to the particular duty being performed, than that required to charge a violation in a warrant of former G.S. 14-33(b)(4), which made it a misdemeanor offense to assault a law enforcement officer while he was discharging or attempting to discharge a duty of his office. State v. Bethea, 71 N.C. App. 125, 321 S.E.2d 520, 1984 N.C. App. LEXIS 3805 (1984).

It was not error to find as an aggravating factor that the offense was for the purpose of preventing a lawful arrest, where, while the offense charged does not require that the officer actually be in the process of arresting the defendant in order to be “performing a duty of his office,” there was evidence tendered at trial from which the trial judge could find as an aggravating factor that the offense was committed for the purpose of preventing a lawful arrest. State v. Bethea, 71 N.C. App. 125, 321 S.E.2d 520, 1984 N.C. App. LEXIS 3805 (1984).

Knowledge is an essential element of the crime of assault with a firearm upon a law enforcement officer. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Knowledge is an essential element of this offense. State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227, 1986 N.C. App. LEXIS 2455 (1986).

Defendant Must Have Known That Victim Was Fireman. —

Conviction under this section requires not only that the jury find that the victim was a fireman, but also that the defendant knew or had reasonable grounds to know that the victim was a fireman. State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227, 1986 N.C. App. LEXIS 2455 (1986).

Failure to Charge on Element of Knowledge. —

Defendant’s convictions for assault with a firearm upon a law enforcement officer would be vacated where the trial judge failed to instruct on the element of knowledge and the cases would be remanded to permit resentencing on the charge of assault with a deadly weapon, a lesser included offense. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Knowledge Shown by Evidence. —

Evidence that two of the three vehicles in which the volunteer firemen arrived were displaying rotating red lights, that one of the firemen was wearing a jacket which bore fire department insignia, and that two of the three firemen verbally identified themselves to defendant as firemen called to extinguish barn fire was sufficient to show that defendant knew or had reasonable grounds to know that the victims whom defendant was charged with assaulting were firemen. State v. Teasley, 82 N.C. App. 150, 346 S.E.2d 227, 1986 N.C. App. LEXIS 2455 (1986).

Wooden Chair as Deadly Weapon. In a prosecution for assault with a deadly weapon on a government official, a deputy’s testimony that defendant picked up a wooden kitchen chair and threw the chair at the deputy in an overhand motion like a baseball was sufficient to determine that the chair attained the character of a deadly weapon based on the manner of its use. State v. James, 224 N.C. App. 164, 735 S.E.2d 627, 2012 N.C. App. LEXIS 1360 (2012).

Evidence held sufficient to meet the requirements of this section. State v. Adams, 88 N.C. App. 139, 362 S.E.2d 789, 1987 N.C. App. LEXIS 3422 (1987).

Where defendant instigated a dog’s attack on the police officers, made no objection to a jury instruction that the dog was under defendant’s control, and did not identify the instruction as plain error, as required by N.C. R. App. 10(b)(2), 10(c)(4), the dog was a deadly weapon under G.S. 14-34.2 because defendant used it in a deadly manner and the police officers perceived it to be deadly in its use; as a result, the trial court properly denied defendant’s motion to dismiss. State v. Cook, 164 N.C. App. 139, 594 S.E.2d 819, 2004 N.C. App. LEXIS 741 , aff'd, 359 N.C. 185 , 606 S.E.2d 118, 2004 N.C. LEXIS 1349 (2004).

Trial court properly denied defendant’s motion to dismiss the assault with a deadly weapon on a government officer charge because, in light of the evidence showing that a gun was only inches from defendant’s outstretched hand and that defendant was actively, forcefully, and to some degree successfully resisting officers’ attempt to arrest him, defendant’s failure to physically touch the weapon did not preclude the commission of an assault with the firearm. State v. Barksdale, 181 N.C. App. 302, 638 S.E.2d 579, 2007 N.C. App. LEXIS 75 (2007).

State presented substantial evidence from which a jury could have found that defendant’s submerging the deputy in the river was likely to produce death or great bodily harm, and thus the evidence supported the conclusion that “hands and water” were in this case a deadly weapon. State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29, 2007 N.C. App. LEXIS 1978 (2007).

Admissibility of Result of Breathalyzer Test. —

Where defendant was not driving or operating a vehicle at the time of the alleged assault on a police officer, the court erred in admitting testimony showing the result of a breathalyzer test. State v. Powell, 18 N.C. App. 732, 198 S.E.2d 70, 1973 N.C. App. LEXIS 1993 , cert. denied, 283 N.C. 757 , 198 S.E.2d 727, 1973 N.C. LEXIS 1092 (1973).

Erroneous Admission of Irrelevant Motive Evidence Held Non-Prejudicial. —

Since the State presented evidence that defendant assaulted a deputy sheriff by dragging the officer with his car, any error committed in admitting evidence of another traffic stop where defendant also fled in a vehicle was non-prejudicial. State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648, 2005 N.C. App. LEXIS 1011 (2005).

Sentencing Issues. —

Where defendant pled guilty to assault with a deadly weapon on a government officer and felony fleeing to elude arrest, as assault with a deadly weapon on a government officer was the more serious of the two underlying felonies, and all of the elements of assault with a deadly weapon on a government officer were not included in any of defendant’s prior offenses, the trial court misapplied G.S. 15A-1340.14(b)(6) by including an additional point in calculating her sentence. State v. Gardner, 225 N.C. App. 161, 736 S.E.2d 826, 2013 N.C. App. LEXIS 56 (2013).

District court erred in revoking defendant’s supervised release and sentencing him to 36 months’ imprisonment because his conviction for North Carolina offense of assault with deadly weapon on government official was categorically not crime of violence for purposes of United States Sentencing Guidelines, and thus, district court erred in classifying defendant’s supervised release violations as Grade A violation. United States v. Simmons, 917 F.3d 312, 2019 U.S. App. LEXIS 6619 (4th Cir. 2019).

§ 14-34.3. Manufacture, sale, purchase, or possession of teflon-coated types of bullets prohibited.

  1. It is unlawful for any person to import, manufacture, possess, store, transport, sell, offer to sell, purchase, offer to purchase, deliver or give to another, or acquire any teflon-coated bullet.
  2. This section does not apply to:
    1. Officers and enlisted personnel of the Armed Forces of the United States when in discharge of their official duties as such and acting under orders requiring them to carry arms or weapons, civil officers of the United States while in the discharge of their official duties, officers and soldiers of the militia when called into actual service, officers of the State, or of any county, city or town, charged with the execution of the laws of the State, when acting in the discharge of their official duties;
    2. Importers, manufacturers, and dealers validly licensed under the laws of the United States or the State of North Carolina who possess for the purpose of sale to authorized law-enforcement agencies only;
    3. Inventors, designers, ordinance consultants and researchers, chemists, physicists, and other persons employed by or under contract with a manufacturing company engaged in making or doing research designed to enlarge knowledge or to facilitate the creation, development, or manufacture of more effective police-type body armor.
  3. Any person who violates any provision of this section is guilty of a Class 1 misdemeanor.

History. 1981 (Reg. Sess., 1982), c. 1272, s. 1; 1993, c. 539, s. 18; 1994, Ex. Sess., c. 24, s. 14(c); 1999-456, s. 33(a); 2011-183, s. 8.

Effect of Amendments.

Session Laws 2011-183, s. 8, effective June 20, 2011, substituted “Armed Forces” for “armed forces” in subdivision (b)(1).

§ 14-34.4. Adulterated or misbranded food, drugs, or cosmetics; intent to cause serious injury or death; intent to extort.

  1. Any person who with the intent to cause serious injury or death manufactures, sells, delivers, offers, or holds for sale, any food, drug, or cosmetic that is adulterated or misbranded, or adulterates or misbrands any food, drug, or cosmetic, in violation of G.S. 106-122 , is guilty of a Class C felony.
  2. Any person who with the intent to wrongfully obtain, directly or indirectly, anything of value or any acquittance, advantage, or immunity communicates to another that he has violated, or intends to violate, subsection (a) of this section, is guilty of a Class C felony.

History. 1987, c. 313, s. 1.

§ 14-34.5. Assault with a firearm on a law enforcement, probation, or parole officer, or on a member of the North Carolina National Guard, or on a person employed at a State or local detention facility.

  1. Any person who commits an assault with a firearm upon a law enforcement officer, probation officer, or parole officer while the officer is in the performance of his or her duties is guilty of a Class D felony.

    (a1) Any person who commits an assault with a firearm upon a member of the North Carolina National Guard while the member is in the performance of his or her duties is guilty of a Class E felony.

  2. Anyone who commits an assault with a firearm upon a person who is employed at a detention facility operated under the jurisdiction of the State or a local government while the employee is in the performance of the employee’s duties is guilty of a Class D felony.

History. 1995, c. 507, s. 19.5(j); 1995 (Reg. Sess., 1996), c. 742, s. 10; 1997-443, s. 19.25(gg); 2015-74, s. 2; 2019-116, s. 1; 2019-228, s. 1(a).

Editor’s Note.

Session Laws 2019-116, s. 2, made the amendment of this section by Session Laws 2019-116, s. 1, effective December 1, 2019, and applicable to offenses committed on or after that date, and further provided: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2019-228, s. 1(c), made the substitution of “Class D felony” for “Class E felony” in subsection (a) by Session Laws 2019-228, s. 1(a), effective December 1, 2019, and applicable to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this section are not abated or affected by this act, and the statutes that would be applicable but for this section remain applicable to those prosecutions.

Effect of Amendments.

Session Laws 2015-74, s. 2, effective December 1, 2015, inserted “or on a member of the North Carolina National Guard” in the section heading; and added subsection (a1). For applicability, see editor’s note.

Session Laws 2019-116, s. 1, substituted “Class D felony” for “Class E felony” at the end of subsections (a) and (b). For effective date and applicability, see editor’s note.

Session Laws 2019-228, s. 1(a), substituted “Class D felony” for “Class E felony” in subsection (a). For effective date and applicability, see editor’s note.

CASE NOTES

In General. —

The elements required for conviction of the crime of assault with a firearm on a law enforcement officer are (1) an assault; (2) with a firearm; (3) on a law enforcement officer; (4) while the officer is engaged in the performance of his or her duties. State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103, 2001 N.C. App. LEXIS 990 (2001).

Construction With Other Assault Provisions. —

Assault by pointing a gun in violation of G.S. 14-34 is not a lesser-included offense of assault with a firearm on a law enforcement officer because the latter offense does not include the element of pointing a gun at a person; however, assault with a deadly weapon in violation of G.S. 14-33(c)(1) is a lesser-included offense of assault with a firearm on a law enforcement officer since a firearm is considered a deadly weapon. The same conduct cannot be used to convict on both assault with a deadly weapon and assault with a firearm on a law enforcement officer. State v. Dickens, 162 N.C. App. 632, 592 S.E.2d 567, 2004 N.C. App. LEXIS 269 (2004).

Construction with G.S. 14-34.1 . —

Defendant’s consecutive sentences for assault with a firearm on a law enforcement officer, in violation of G.S. 14-34.5 , and discharging a firearm into occupied property, in violation of G.S. 14-34.1 , did not violate double jeopardy because one crime required proof of a law enforcement officer then performing his duties, and the other crime required proof of willful and wanton discharge of a firearm into occupied property, so different elements constituted each offense. State v. Sellers, 155 N.C. App. 51, 574 S.E.2d 101, 2002 N.C. App. LEXIS 1631 (2002).

Exclusionary Rule Did Not Bar Evidence of Assault on Law Enforcement Officer. —

Trial court properly denied defendant’s motion to suppress evidence in the trial of his charge of assault on a law enforcement officer because, even if the police officers’ entry into defendant’s home was unlawful, the exclusionary rule did not operate to exclude evidence of defendant’s assault on the law enforcement officers. State v. Parker, 188 N.C. App. 616, 655 S.E.2d 860, 2008 N.C. App. LEXIS 192 (2008).

Sufficiency of Indictment. —

Indictment that charged the offense in the language of G.S. 14-34.5(a) was sufficient even though it did not aver that defendant knew the assault victim was a police officer. State v. Thomas, 153 N.C. App. 326, 570 S.E.2d 142, 2002 N.C. App. LEXIS 1188 (2002), cert. dismissed, 367 N.C. 268 , 749 S.E.2d 865, 2013 N.C. LEXIS 1240 (2013).

Evidence Sufficient. —

In a prosecution for assault with a firearm on a law enforcement officer, where the evidence showed that defendant struck a police officer, struggled with the officer, removed the officer’s handgun from its holster, took aim at the officer, and fired a shot at the officer, the element of assault was properly proven. State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103, 2001 N.C. App. LEXIS 990 (2001).

To be guilty of the offense of assault with a firearm on a law enforcement officer under G.S. 14-34.5 , the defendant must have known or had reasonable grounds to know that the victim was a law enforcement officer; evidence was sufficient that defendant knew he was shooting at officers where: (1) two plain clothes officers approached defendant with one only slightly behind the other; (2) one identified himself as a police officer, and defendant asked the other why he was under arrest; (3) both officers assisted in helping subdue defendant when he struggled; (4) defendant grabbed one officer’s radio while he was calling for backup, and he grabbed the gun of the other officer while resisting their arrest; and (5) he clearly assaulted the officer when he grabbed the other officer’s gun and fired a shot in the first officer’s direction. State v. Dickens, 162 N.C. App. 632, 592 S.E.2d 567, 2004 N.C. App. LEXIS 269 (2004).

§ 14-34.6. Assault or affray on a firefighter, an emergency medical technician, medical responder, and hospital personnel.

  1. A person is guilty of a Class I felony if the person commits an assault or affray causing physical injury on any of the following persons who are discharging or attempting to discharge their official duties:
    1. An emergency medical technician or other emergency health care provider.
    2. A medical responder.
    3. Hospital personnel and licensed healthcare providers who are providing or attempting to provide health care services to a patient.
    4. Repealed by Session Laws 2011-356, s. 2, effective December 1, 2011, and applicable to offenses committed on or after that date.
    5. A firefighter.
    6. Hospital security personnel.
  2. Unless a person’s conduct is covered under some other provision of law providing greater punishment, a person is guilty of a Class G felony if the person violates subsection (a) of this section and (i) inflicts serious bodily injury or (ii) uses a deadly weapon other than a firearm.
  3. Unless a person’s conduct is covered under some other provision of law providing greater punishment, a person is guilty of a Class E felony if the person violates subsection (a) of this section and uses a firearm.

History. 1995, c. 507, s. 19.6(a); 1996, 2nd Ex. Sess., c. 18, s. 20.14B(b); 1997-9, s. 2; 1997-443, s. 11A.129A; 1998-217, s. 1; 2011-356, s. 2; 2015-97, s. 1; 2017-57, s. 16B.3(a); 2019-228, s. 1(b).

Editor’s Note.

The number of this section was assigned by the Revisor of Statutes, the number in Session Laws 1995, c. 507, s. 19.6(a) having been 14-34.5.

Session Laws 2019-228, s. 1(c), made the amendment of this section by Session Laws 2019-228, s. 1(b), effective December 1, 2019, and applicable to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this section are not abated or affected by this act, and the statutes that would be applicable but for this section remain applicable to those prosecutions.

Effect of Amendments.

Session Laws 2011-356, s. 2, effective December 1, 2011, and applicable to offenses committed on or after that date, in the section catchline, substituted “and emergency department personnel” for “emergency department nurse, or emergency department physician”; in the introductory paragraph of subsection (a), substituted “Class I felony” for “Class A1 misdemeanor” and inserted “causing physical injury”; in subdivision (a)(1), added “or other emergency health care provider”; rewrote subdivision (a)(3), which formerly read: “An emergency department nurse”; deleted subdivision (a)(4), which read: “An emergency department physician”; and in subsection (b), substituted “Class H felony” for “Class I felony.”

Session Laws 2015-97, s. 1, effective December 1, 2015, rewrote subdivision (a)(3), which read: “The following emergency department personnel: physicians, physicians assistants, nurses, and licensed nurse practitioners.” For applicability, see editor’s note.

Session Laws 2017-57, s. 16B.3(a), added subdivision (a)(6). For effective date and applicability, see editor’s note.

Session Laws 2019-228, s. 1(b), deleted “in a hospital” following “patient” at the end of subdivision (a)(3); substituted “Class G felony” for “Class H felony” in subsection (b); and substituted “Class E felony” for “Class F felony” in subsection (c). For effective date and applicability, see editor’s note.

CASE NOTES

Evidence Sufficient. —

Evidence that defendant shot twice at the door while the firefighters were attempting to force open the door and that defendant was aware that people were outside pounding on the door and shot at the door to send a warning to whatever was on the other side was sufficient to support defendant’s convictions for assaulting a firefighter with a firearm. State v. Starr, 209 N.C. App. 106, 703 S.E.2d 876, 2011 N.C. App. LEXIS 58 , modified, aff'd, 365 N.C. 314 , 718 S.E.2d 362, 2011 N.C. LEXIS 993 (2011).

§ 14-34.7. Certain assaults on a law enforcement, probation, or parole officer, or on a member of the North Carolina National Guard, or on a person employed at a State or local detention facility; penalty.

  1. Unless covered under some other provision of law providing greater punishment, a person is guilty of a Class F felony if the person assaults a law enforcement officer, probation officer, or parole officer while the officer is discharging or attempting to discharge his or her official duties and inflicts serious bodily injury on the officer.

    (a1) Unless covered under some other provision of law providing greater punishment, a person is guilty of a Class F felony if the person assaults a member of the North Carolina National Guard while he or she is discharging or attempting to discharge his or her official duties and inflicts serious bodily injury on the member.

  2. Unless covered under some other provision of law providing greater punishment, a person is guilty of a Class F felony if the person assaults a person who is employed at a detention facility operated under the jurisdiction of the State or a local government while the employee is in the performance of the employee’s duties and inflicts serious bodily injury on the employee.
  3. Unless covered under some other provision of law providing greater punishment, a person is guilty of a Class I felony if the person does any of the following:
    1. Assaults a law enforcement officer, probation officer, or parole officer while the officer is discharging or attempting to discharge his or her official duties and inflicts physical injury on the officer.
    2. Assaults a person who is employed at a detention facility operated under the jurisdiction of the State or a local government while the employee is in the performance of the employee’s duties and inflicts physical injury on the employee.
    3. Assaults a member of the North Carolina National Guard while he or she is discharging or attempting to discharge his or her official duties and inflicts physical injury on the member.For the purposes of this subsection, “physical injury” includes cuts, scrapes, bruises, or other physical injury which does not constitute serious injury.

History. 1996, 2nd Ex. Sess., c. 18, s. 20.14B(a); 1997-443, s. 19.25(hh); 2001-487, s. 41; 2011-356, s. 1; 2015-74, s. 1.

Effect of Amendments.

Session Laws 2011-356, s. 1, effective December 1, 2011, and applicable to offenses committed on or after that date, added subsection (c).

Session Laws 2015-74, s. 1, effective December 1, 2015, in the section heading, substituted “Certain assaults” for “Assault inflicting serious injury” and inserted “or on a member of the North Carolina National Guard”; added subsection (a1); in subsection (b), substituted “Unless covered under some other provision of law providing greater punishment, a person is guilty of a Class F felony if the person assaults” for “Anyone who assaults,” and deleted “is guilty of a Class F felony, unless the person’s conduct is covered under some other provision of law providing greater punishment” from the end; substituted “any of the following:” for “either of the following:” in the introductory sentence of subsection (c); and added subdivision (c)(3). For applicability, see editor’s note.

Legal Periodicals.

For comment, “Drawing the Blue Line: Categorizing Law Enforcement as a Protected Class Within Hate Crime Legislation,” see 42 Campbell L. Rev. 281 (2020).

CASE NOTES

“Serious Injury” and “Serious Bodily Injury”. —

G.S. 14-34.7 was ambiguous because the statute’s title referred to assaults inflicting “serious injury” while the statute text specified assaults inflicting “serious bodily injury” — under North Carolina law, the terms “serious injury” and “serious bodily injury” were not interchangeable; however, when interpreting ambiguous statutes, the principal goal is to effectuate the purpose of the legislature, and the “manifest purpose” of the legislature in enacting G.S. 14-34.7 was to make an assault inflicting “serious injury” or “serious bodily injury” against a law enforcement officer a felony. State v. Crawford, 167 N.C. App. 777, 606 S.E.2d 375, 2005 N.C. App. LEXIS 1 (2005).

Liability Not Limited to Officer Engaging in Lawful Conduct in Performance of Official Duties. —

Unlike the offense of resisting, delaying, or obstructing an officer, criminal liability for the offense of assaulting an officer is not limited to situations where an officer is engaging in lawful conduct in the performance or attempted performance of his or her official duties. State v. Friend, 237 N.C. App. 490, 768 S.E.2d 146, 2014 N.C. App. LEXIS 1208 (2014).

Evidence Sufficient to Withstand Dismissal. —

Trial court did not err in denying defendant’s motion to dismiss the charge of assault causing physical injury on a law enforcement officer because, although defendant was no longer in the police captain’s custody and was instead in the custody of the county jail at the time of the assault on the captain, by remaining at the jail to ensure the safety of other officers, the captain was discharging the duties of his office. State v. Friend, 237 N.C. App. 490, 768 S.E.2d 146, 2014 N.C. App. LEXIS 1208 (2014).

It was not error to deny defendant’s motion to dismiss a charge of assault on a law enforcement officer inflicting serious bodily injury because the State presented substantial evidence of (1) an assault, (2) serious bodily injury, (3) the victim being a law enforcement officer performing his official duties, and (4) defendant’s knowledge that the victim was a law enforcement officer. State v. Burwell, 256 N.C. App. 722, 808 S.E.2d 583, 2017 N.C. App. LEXIS 1024 (2017).

Denial of defendant’s motion to dismiss the charge of assault causing physical injury on a law enforcement officer was appropriate because any concerns a police captain may have had about officer safety were well-founded as defendant had proven to be extremely uncooperative. By remaining at the jail to ensure the safety of other officers, the captain was discharging the duties of the captain’s office when defendant tackled the captain. State v. William, 2014 N.C. App. LEXIS 1425 (Dec. 2, 2014).

Denial of defendant’s motion to dismiss the charge of assault causing physical injury on a law enforcement officer was appropriate because any concerns a police captain may have had about officer safety were well-founded as defendant had proven to be extremely uncooperative. By remaining at the jail to ensure the safety of other officers, the captain was discharging the duties of the captain’s office when defendant tackled the captain. State v. Friend, 237 N.C. App. 490, 768 S.E.2d 146, 2014 N.C. App. LEXIS 1208 (2014).

Evidence Insufficient. —

There was insufficient evidence to support the “serious bodily injury” element of assault inflicting serious bodily injury on an officer, as the injury did not require stitches and allowed the officer to return to work that day. State v. Williams, 255 N.C. App. 168, 804 S.E.2d 570, 2017 N.C. App. LEXIS 659 (2017).

§ 14-34.8. Criminal use of laser device.

  1. For purposes of this section, the term “laser” means light amplification by stimulated emission of radiation.
  2. It is unlawful intentionally to point a laser device at a law enforcement officer, or at the head or face of another person, while the device is emitting a laser beam.
  3. A violation of this section is an infraction.
  4. This section does not apply to a law enforcement officer who uses a laser device in discharging or attempting to discharge the officer’s official duties. This section does not apply to a health care professional who uses a laser device in providing services within the scope of practice of that professional nor to any other person who is licensed or authorized by law to use a laser device or uses it in the performance of the person’s official duties.
  5. This section does not apply to laser tag, paintball guns, and other similar games and devices using light emitting diode (LED) technology.

History. 1999-401, s. 1.

§ 14-34.9. Discharging a firearm from within an enclosure.

Unless covered under some other provision of law providing greater punishment, any person who willfully or wantonly discharges or attempts to discharge a firearm, as a part of criminal gang activity, from within any building, structure, motor vehicle, or other conveyance, erection, or enclosure toward a person or persons not within that enclosure shall be punished as a Class E felon.

History. 2008-214, s. 2; 2017-194, s. 6.

Editor’s Note.

Session Laws 2017-194, s. 20 made the amendment to this section by Session Laws 2017-194, s. 6, which substituted “criminal gang activity” for “a pattern of criminal street gang activity,” effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 6, substituted “criminal gang activity” for “a pattern of criminal street gang activity” in the middle of this section. For applicability, see editor’s note.

§ 14-34.10. Discharge firearm within enclosure to incite fear.

Unless covered under some other provision of law providing greater punishment, any person who willfully or wantonly discharges or attempts to discharge a firearm within any occupied building, structure, motor vehicle, or other conveyance, erection, or enclosure with the intent to incite fear in another shall be punished as a Class F felon.

History. 2013-144, s. 1.

CASE NOTES

Indictment Insufficient. —

Indictment charged that defendant discharged a handgun into an occupied structure with the intent to incite fear in others; the indictment attempted to charge defendant with violating the statute, but failed to accurately do so by alleging that he discharged a firearm into an occupied structure, not within, and thus the indictment was insufficient to confer jurisdiction upon the trial court, and judgment entered upon his conviction for discharging a firearm from within a building with the intent to incite fear was vacated. State v. McLean, 251 N.C. App. 850, 796 S.E.2d 804, 2017 N.C. App. LEXIS 47 (2017).

Article 9. Hazing.

§ 14-35. Hazing; definition and punishment.

It is unlawful for any student in attendance at any university, college, or school in this State to engage in hazing, or to aid or abet any other student in the commission of this offense. For the purposes of this section hazing is defined as follows: “to subject another student to physical injury as part of an initiation, or as a prerequisite to membership, into any organized school group, including any society, athletic team, fraternity or sorority, or other similar group.” Any violation of this section shall constitute a Class 2 misdemeanor.

History. 1913, c. 169, ss. 1, 2, 3, 4; C.S., s. 4217; 1969, c. 1224, s. 1; 1993, c. 539, s. 19; 1994, Ex. Sess., c. 24, s. 14(c); 2003-299, s. 1.

Legal Periodicals.

For article, “Victimology, Personality, and Hazing: A Study of Black Greek-Letter Organizations,” see 36 N.C. Cent. L. Rev. 16 (2013).

§ 14-36. [Repealed]

Repealed by Session Laws 2003-299, § 2, effective December 1, 2003, and applicable to offenses committed on or after that date.

§ 14-37. [Repealed]

Repealed by Session Laws 1979, c. 7, s. 1.

§ 14-38. Witnesses in hazing trials; no indictment to be founded on self-criminating testimony.

In all trials for the offense of hazing any student or other person subpoenaed as a witness in behalf of the State shall be required to testify if called upon to do so: Provided, however, that no student or other person so testifying shall be amenable or subject to indictment on account of, or by reason of, such testimony.

History. 1913, c. 169, s. 8; C.S., s. 4220.

Article 10. Kidnapping and Abduction.

§ 14-39. Kidnapping.

  1. Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:
    1. Holding such other person for a ransom or as a hostage or using such other person as a shield; or
    2. Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
    3. Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person; or
    4. Holding such other person in involuntary servitude in violation of G.S. 14-43.12 .
    5. Trafficking another person with the intent that the other person be held in involuntary servitude or sexual servitude in violation of G.S. 14-43.11 .
    6. Subjecting or maintaining such other person for sexual servitude in violation of G.S. 14-43.13 .
  2. There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.
  3. Any firm or corporation convicted of kidnapping shall be punished by a fine of not less than five thousand dollars ($5,000) nor more than one hundred thousand dollars ($100,000), and its charter and right to do business in the State of North Carolina shall be forfeited.

History. 1933, c. 542; 1975, c. 843, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 746, s. 2; 1993, c. 539, s. 1143; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 509, s. 8; 2006-247, s. 20(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

Session Laws 2006-247, s. 1(a), provides: “That this shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2006-247, s. 20(c), effective December 1, 2006, and applicable to offenses committed on or after that date, substituted “14-43.12” for “14-43.2” at the end of subdivision (a)(4) and added subdivisions (a)(5) and (a)(6).

Legal Periodicals.

For case law survey on kidnapping, see 41 N.C.L. Rev. 445 (1963).

For a note analyzing the recent amendment codifying the definition of kidnapping, see 12 Wake Forest L. Rev. 434 (1976).

For a survey of 1977 criminal law, see 56 N.C.L. Rev. 965 (1978).

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Many of the cases below were decided under this section as it stood prior to the 1975 amendment. At that time the statute did not specifically define kidnapping and was construed as incorporating common-law elements of kidnapping. The cases should be read in light of State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909 (1977), aff’d, 294 N.C. 503 , 243 S.E.2d 338 (1978), which held that the 1975 amendment superseded the common law.

Editor’s Note. —

In addition, many of the cases below were decided prior to July 1, 1981, the effective date of the 1979 amendment which created two degrees of kidnapping.

Constitutionality. —

This section, on its face, does not violate the due process clause of U.S. Const., Amend. XIV, or the law of land clause of N.C. Const., Art. I, § 19, or the cruel or unusual punishment clause of either Constitution. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

This section, as herein construed, is not vague. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

This section applies to all who violate it without exception or classification. Consequently, it does not, upon its face, violate the equal protection clause of U.S. Const., Amend. XIV or the like clause contained in N.C. Const., Art. I, § 19. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

This section does not interfere with or prohibit any activity protected by U.S. Const., Amend. I or any other federal or State constitutional provision. It is a penal statute completely within the State’s police power. The doctrine of overbreadth has no application to it. State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978).

This section is neither unconstitutionally vague nor “overbroad.” State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978).

As to the constitutionality of the sentencing procedure, see State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

This section prima facie violates no provision of the State or federal Constitutions. State v. Silhan, 297 N.C. 660 , 256 S.E.2d 702, 1979 N.C. LEXIS 1270 (1979).

History. —

A former statute, C.S., s. 4221, provided that any person who forcibly or fraudulently kidnapped any person should be guilty of a felony, and upon conviction might be punished in the discretion of the court, not exceeding 20 years in the State’s prison. As a result of the kidnapping and death in the Lindbergh tragedy, the General Assembly repealed C.S., s. 4221 by the enactment of Public Laws 1933, c. 542, now codified as this section. State v. Bruce, 268 N.C. 174 , 150 S.E.2d 216, 1966 N.C. LEXIS 1156 (1966).

Legislative Intent. —

The Supreme Court’s long-standing interpretation in State v. Fulcher, 294 NC 503, 243 S.E.2d 338 (1978) of legislative intent in the enactment of this section has become an integral part of the kidnapping statute, and thus remains the appropriate focus for analysis of kidnapping convictions. State v. Beatty, 347 N.C. 555 , 495 S.E.2d 367, 1998 N.C. LEXIS 7 (1998).

Effect of the 1975 Amendment. —

Though this section, as amended in 1975, is broader than common-law kidnapping, in that it eliminates asportation as a necessary element of the crime, it is restrictive in that, by limiting kidnapping to unlawful confinement, restraint or asportation for the purposes enumerated it does not include some of the situations covered by the common-law crime. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

The present statutory definition of the crime of kidnapping, enacted in 1975, must be construed in the light of recent decisions of the Supreme Court decided prior to the rewriting of the statute. When so considered, it is clear that the legislature intended to change the law as therein declared. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

This Section Supersedes the Common Law. —

This section, as amended in 1975, supersedes the common-law crime of kidnapping. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

Since this section supersedes the common-law crime of kidnapping, common-law kidnapping no longer exists in North Carolina. State v. Holmon, 36 N.C. App. 569, 244 S.E.2d 491, 1978 N.C. App. LEXIS 2549 (1978).

And Changes the Law as Theretofore Declared. —

The present statutory definition of the crime of kidnapping enacted in 1975 changed the law as theretofore declared by the Supreme Court. State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980).

Consideration of Common Law Kidnapping for Sentencing Purposes. —

The trial court properly assessed four points under G.S. 15A-1340.14 for the defendant’s prior common law kidnapping offense, as the common law definition of kidnapping is substantially similar to the definition under this section. State v. Rice, 129 N.C. App. 715, 501 S.E.2d 665, 1998 N.C. App. LEXIS 767 (1998).

This section follows the pattern of the kidnapping provision, § 212.1, of the Model Penal Code. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

Term “aggravated kidnapping” is a misnomer and should not be used in connection with this statute. State v. Pratt, 306 N.C. 673 , 295 S.E.2d 462, 1982 N.C. LEXIS 1556 (1982).

While some of the opinions of the Supreme Court refer to the crime defined in subsection (a) as “aggravated kidnapping,” this is a misnomer. The proper term for the crime there defined is “kidnapping.” State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978).

First-degree kidnapping differs from second-degree kidnapping in that the former includes the following essential element not present in the latter: the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted. All other essential elements for first- and second-degree kidnapping are identical. Thus, someone properly found guilty of first-degree kidnapping is necessarily guilty of second-degree kidnapping. State v. Jeune, 332 N.C. 424 , 420 S.E.2d 406, 1992 N.C. LEXIS 484 (1992).

The common-law crime of false imprisonment has not been superseded by this section, as amended in 1975, because there may be an unlawful restraint without the purposes specified in the statute. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

First and Second Degrees Distinguished. —

There are two degrees of kidnapping in North Carolina: (1) if the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony; (2) if the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony. State v. Pratt, 152 N.C. App. 694, 568 S.E.2d 276, 2002 N.C. App. LEXIS 970 (2002), cert. denied, 357 N.C. 168 , 581 S.E.2d 442, 2003 N.C. LEXIS 565 (2003).

Kidnapping and False Imprisonment Distinguished. —

Whether a defendant who confines, restrains, or removes another is guilty of kidnapping or false imprisonment, depends upon whether the act was committed to accomplish one of the purposes enumerated in this section. State v. Lang, 58 N.C. App. 117, 293 S.E.2d 255, 1982 N.C. App. LEXIS 2717 (1982); State v. Whitaker, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

The trial court properly denied the defendant’s request for a jury instruction on the lesser-included offense of false imprisonment where the evidence showed that he held the victim at gunpoint in order to force her to watch him commit suicide or at the very least to force her to watch him point a gun at his head and repeatedly threaten to do so, and thereby terrorize her. State v. Baldwin, 141 N.C. App. 596, 540 S.E.2d 815, 2000 N.C. App. LEXIS 1401 (2000).

Crime of false imprisonment is a lesser included offense of the crime of kidnapping. State v. Lang, 58 N.C. App. 117, 293 S.E.2d 255, 1982 N.C. App. LEXIS 2717 (1982); State v. Whitaker, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

As is Felonious Restraint. —

Felonious restraint is a lesser included offense of kidnapping. State v. Wilson, 128 N.C. App. 688, 497 S.E.2d 416, 1998 N.C. App. LEXIS 164 (1998).

The difference between kidnapping and the lesser-included offense of false imprisonment is the purpose of the confinement, restraint, or removal of another person. State v. Claypoole, 118 N.C. App. 714, 457 S.E.2d 322, 1995 N.C. App. LEXIS 378 (1995).

Under G.S. 14-39(a)(2), (3) (2001), any person who, unlawfully and without consent, confines, restrains, or removes from one place to another any other person is guilty of kidnapping if such confinement, restraint or removal is for one of several purposes outlined in the statute, including facilitating the commission of any felony and terrorizing the person so confined. State v. Pratt, 152 N.C. App. 694, 568 S.E.2d 276, 2002 N.C. App. LEXIS 970 (2002), cert. denied, 357 N.C. 168 , 581 S.E.2d 442, 2003 N.C. LEXIS 565 (2003).

As there could be no kidnapping without there first being a false imprisonment. State v. Owen, 24 N.C. App. 598, 211 S.E.2d 830, 1975 N.C. App. LEXIS 2450 , cert. denied, 287 N.C. 263 , 214 S.E.2d 435, 1975 N.C. LEXIS 1111 (1975).

But Forcible Trespass Is Not. —

Since forcible trespass requires proof of an element not essential to kidnapping, i.e., entry into a person’s premises, it cannot be a lesser included offense of kidnapping. State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778, 1982 N.C. App. LEXIS 2729 (1982).

The restraint, confinement, and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape. For the kidnapping convictions to be upheld, the initial inquiry is whether there was substantial evidence that the defendants restrained or confined the victim separate and apart from any restraint necessary to accomplish the acts of rape. State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245, 1992 N.C. App. LEXIS 565 (1992).

When Defendant May Be Convicted of Both Kidnapping and Another Felony. —

There is no constitutional barrier to the conviction of a defendant for kidnapping by restraining his victim, and also of another felony to facilitate which such restraint was committed, provided the restraint, which constitutes the kidnapping, is a separate, complete act, independent of and apart from the other felony. Such independent and separate restraint need not be, itself, substantial in time, under this section as now written. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

Under this section it is necessary to prove that the confinement, restraint, or removal is for the purpose of, among other alternatives, “facilitating the commission of any felony,” and if the intended felony is actually completed, the defendant can be convicted and sentenced for kidnapping and the intended felony without violating the Double Jeopardy Clause of the U.S. Const., Amend. V. State v. Handsome, 300 N.C. 313 , 266 S.E.2d 670, 1980 N.C. LEXIS 1079 (1980).

Defendant may not be separately punished for the offenses of first-degree rape and first-degree kidnapping where the rape is the sexual assault used to elevate kidnapping to first degree. State v. Mason, 317 N.C. 283 , 345 S.E.2d 195, 1986 N.C. LEXIS 2775 (1986).

Where the removal of the victim is an inherent and integral part of the underlying felony, it is insufficient to support a conviction for a separate kidnapping offense. State v. Parker, 81 N.C. App. 443, 344 S.E.2d 330, 1986 N.C. App. LEXIS 2297 (1986).

Although some restraint is inherent in the crime of forced rape, the restraint, confinement and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape. State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

Asportation of a rape victim is sufficient to support a charge of kidnapping if the defendant could have perpetuated the offense when he first threatened the victim, and instead, took the victim to a more secluded area to prevent others from witnessing or hindering the rape. Such asportation is separate and independent of the rape, is removal for the purpose of facilitating the felony of rape, and is, therefore, kidnapping pursuant to this section. State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

As both first-degree rape and first-degree sexual offense, of which the jury found defendant guilty, were sufficient to support conviction of first-degree kidnapping, and each carried a mandatory penalty of life imprisonment, defendant was not prejudiced when the trial judge averted the multiple punishment problem by arresting judgment on the rape conviction. State v. Young, 319 N.C. 661 , 356 S.E.2d 347, 1987 N.C. LEXIS 2077 (1987).

Convictions of first-degree kidnapping and first-degree rape could not both stand, where there was evidence of an unindicted sexual offense and of a first-degree sexual offense for which defendant was indicted but not convicted, as well as evidence of the rape for which defendant was both indicted and convicted, but the trial court did not specify in its instructions to the jury in the kidnapping case which of these sexual assaults the jury might use to satisfy the “sexual assault” element of the first-degree kidnapping. State v. Freeman, 319 N.C. 609 , 356 S.E.2d 765, 1987 N.C. LEXIS 2083 (1987).

Defendant may be convicted of kidnapping and of sexual assault where restraint or asportation of victim is separate, complete act, independent of and apart from sexual assault. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Although restraint of the victim is inherent in the crime of rape, the restraint, confinement and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape. State v. McKenzie, 122 N.C. App. 37, 468 S.E.2d 817, 1996 N.C. App. LEXIS 211 (1996).

It was reversible error to impose sentences for first-degree kidnapping and attempted robbery with a dangerous weapon offenses, both of which the jury was instructed could serve as underlying felonies to the charge of felony murder. State v. Oglesby, 174 N.C. App. 658, 622 S.E.2d 152, 2005 N.C. App. LEXIS 2624 (2005), aff'd in part, vacated in part, 361 N.C. 550 , 648 S.E.2d 819, 2007 N.C. LEXIS 812 (2007), dismissed, 278 N.C. App. 564, 862 S.E.2d 225, 2021- NCCOA-354, 2021 N.C. App. LEXIS 356 (2021).

Since the State failed to show that the removal of the victims was separate from the robbery, that it increased the danger beyond that inherent in the robbery, that the victims were physically injured, or that they were subjected to restraint beyond that of the threatened use of a firearm, defendant’s kidnapping convictions were reversed as being in violation of double jeopardy. State v. Ripley, 172 N.C. App. 453, 617 S.E.2d 106, 2005 N.C. App. LEXIS 1801 (2005), aff'd, 360 N.C. 333 , 626 S.E.2d 289, 2006 N.C. LEXIS 21 (2006).

In a case where defendant was convicted of second-degree sexual offense, first-degree kidnapping, and two counts of second-degree rape, although the State’s argument in its brief that there was evidence that defendant removed the victim from the open field to the fence area behind the building might have been sufficient to sustain a punishment for kidnapping separate from the punishments for the rapes and sexual assault, that argument was overruled because the trial court only instructed based on restraint and the State stipulated to that instruction. State v. Parker, 237 N.C. App. 546, 768 S.E.2d 1, 2014 N.C. App. LEXIS 1207 (2014).

Charge of second-degree kidnapping should have been dismissed because there was no evidence in the record that the victim was subject to any restraint beyond that inherent in defendant’s commission of a first-degree sex offense and misdemeanor assault inflicting serious injury. There was no evidence that the victim was restrained beyond what was required to overpower and assault him in a sudden and brief attack.

Same — Illustrative Cases. —

In a prosecution for first-degree rape and kidnapping, where the defendant told the prosecutrix she would not live to be 19 if she did not cooperate with him, and she had every reason to believe that he would carry out his threat to kill her, and the defendant had exhibited a knife and threatened the life of the prosecutrix with it, and the knife continued in use as long as it was accessible to him, there was ample evidence to submit the case to the jury on first-degree rape and kidnapping. State v. Dull, 289 N.C. 55 , 220 S.E.2d 344, 1975 N.C. LEXIS 874 (1975), vacated in part, 428 U.S. 904, 96 S. Ct. 3211, 49 L. Ed. 2d 1211, 1976 U.S. LEXIS 4217 (1976).

As the felonious assault which it was alleged in the indictment was one of the purposes for which defendant removed the victim from one place to another was not an element of the kidnapping offense, since it was not necessary for the State to prove the felonious assault in order to convict the defendant of kidnapping, but only to prove that the purpose of the removal was a felonious assault, the felonious assault was, consequently, a separate and distinct offense and the defendant could be convicted and sentenced on both the assault and the kidnapping charges. State v. Dammons, 293 N.C. 263 , 237 S.E.2d 834, 1977 N.C. LEXIS 931 (1977); State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, 1980 N.C. App. LEXIS 3088 (1980).

Where the restraint of two victims was for the purpose of facilitating the commission of the crime against nature and for the purpose of facilitating the flight of defendant from the room after the perpetration of the two crimes, the restraint of each woman was separate and apart from, and not an inherent incident of the crime against nature, though closely related thereto in time, and either of such purposes satisfied the statutory definition of kidnapping. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

There was ample evidence of kidnapping in a prosecution for kidnapping, armed robbery, and assault with a deadly weapon with intent to kill inflicting serious bodily harm when defendant produced a pistol and forced the victim to walk 50 feet or more into the woods, where he committed felonious assault. State v. Alston, 294 N.C. 577 , 243 S.E.2d 354, 1978 N.C. LEXIS 1291 (1978).

When the State proves the elements of kidnapping and the purpose for which the victim was confined or restrained, conviction of the kidnapping may be sustained. Thus, the crimes of crime against nature, assault with intent to commit rape and robbery with a dangerous weapon are separate and distinct offenses and are punishable as such. State v. Banks, 295 N.C. 399 , 245 S.E.2d 743, 1978 N.C. LEXIS 891 (1978).

The principle that when a criminal offense in its entirety is an essential element of another offense a defendant may not be punished for both offenses was not applicable in a prosecution for two counts of kidnapping and for robbery and other felonies for which the victims were kidnapped, since in order to prove kidnapping it was only necessary to prove a purpose of robbery and the other felonies and not the commission of the felonies themselves. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

Even though both the prosecution and the trial court treated the “serious injury” arising out of the felonious assault charge and the “sexual assault” arising out of the rape charge as elements of the respective kidnappings in a prosecution for two counts of kidnapping, first-degree rape, two counts of armed robbery, and assault with a deadly weapon with the intent to kill inflicting serious bodily injury, the convictions and sentencing of the defendant for the kidnappings and the assault and rape were not violations of the Double Jeopardy Clause of the United States Constitution or the Law of the Land Clause of the North Carolina Constitution. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

In a prosecution for kidnapping and armed robbery, the restraint and asportation of the victim, consisting of moving her from the store to a hallway in the rear of the building and tying her to a grocery cart, was not necessary to and not a part of the armed robbery, and the elements of the two offenses were not the same. Thus, conviction of both crimes did not violate due process and equal protection standards. State v. Vert, 39 N.C. App. 26, 249 S.E.2d 476, 1978 N.C. App. LEXIS 2333 (1978), cert. denied, 296 N.C. 739 , 254 S.E.2d 181, 1979 N.C. LEXIS 1294 (1979).

In a prosecution for rape and kidnapping, where the victim was by trick enticed into defendant’s automobile and transported about six blocks away, where by force and by threat of the use of a knife, she was raped, and during a period of about 45 minutes the victim was under the complete dominion and control of the defendant, the restraint accompanying the rape was not an inherent, inevitable feature of the kidnapping. Under these circumstances, the kidnapping was a separate, complete act independent of the later committed crime of rape. Thus, the constitutional problem of double jeopardy did not arise and defendant failed to show denial of due process. State v. Wilson, 296 N.C. 298 , 250 S.E.2d 621, 1979 N.C. LEXIS 1149 (1979).

The restraint, confinement and asportation of a rape victim may constitute kidnapping if it is a separate, complete act, independent of and apart from the rape. State v. Silhan, 297 N.C. 660 , 256 S.E.2d 702, 1979 N.C. LEXIS 1270 (1979).

Where a defendant is charged with kidnapping, rape and crime against nature, an essential element of each offense being a restraint, the defendant can be convicted for each offense without violating the constitutional prohibition against double jeopardy where there is also a showing of asportation as an element of kidnapping. State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980).

Double jeopardy did not result when defendant was tried and convicted of kidnapping for the purpose of facilitating flight following his participation in an armed robbery and of armed robbery, since the intent of the legislature in establishing the punishment for kidnapping was to impose an indivisible penalty for restraint and removal for specified purposes, no hypothetical part of which penalty represents a punishment for the felony which gave rise to the flight of defendant and his removal of the victim, and the crimes of armed robbery and kidnapping involve vastly different social implications. State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, 1980 N.C. App. LEXIS 3088 (1980).

Asportation of the victim is not an inherent or inevitable feature of an assault; therefore, removal of a victim from the front porch of her home to a more secluded wooded area clearly facilitated the commission of the felony of assault, and thus a separate charge for kidnapping was proper. State v. Coffer, 54 N.C. App. 78, 282 S.E.2d 492, 1981 N.C. App. LEXIS 2790 (1981).

Where removal of the victims was a separate course of conduct designed to remove the victims from the view of a passerby who might have hindered the commission of the crime, the evidence was sufficient under this section to sustain kidnapping convictions, and the court properly denied defendant’s motion to dismiss kidnapping charges. State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518, 1985 N.C. App. LEXIS 4164 , writ denied, 314 N.C. 670 , 337 S.E.2d 583, 1985 N.C. LEXIS 2140 (1985).

Conduct of defendant in forcing his victim to drive down a highway, turn into a motel parking lot and drive around to the back of the motel, a darker and much more deserted area, was more than a mere technical asportation, was not necessary to the accomplishment of the robbery which he subsequently committed, and did, in fact, expose the victim to danger greater than that inherent in the robbery itself, and the trial court did not err in denying motion to dismiss the charge of second-degree kidnapping. State v. Parker, 81 N.C. App. 443, 344 S.E.2d 330, 1986 N.C. App. LEXIS 2297 (1986).

Where the placement of a gag over victim’s mouth could not have been the proximate cause of her death without the binding of her hands and feet, which prevented the removal of the gag, so that the victim’s death would not have occurred without these other ligatures, the restraint of the victim which resulted in her murder was indistinguishable from the restraint used by the State to support the kidnapping charge, and defendant’s kidnapping conviction would be vacated. State v. Prevette, 317 N.C. 148 , 345 S.E.2d 159, 1986 N.C. LEXIS 2784 (1986).

Trial judge properly refused to dismiss kidnapping charges where the State’s evidence tended to show that defendant removed victim from his truck and dragged her down to river and under bridge where he committed sexual assaults out of the view of passersby on the road, and that the victim sustained multiple bruises, abrasions and cuts from being dragged on her back, as these acts constituted neither a mere technical asportation nor an inherent and integral part of the rape and sex offense committed. State v. Tucker, 317 N.C. 532 , 346 S.E.2d 417, 1986 N.C. LEXIS 2405 (1986).

Where defendant threatened the victim with a knife at the front of the car wash and then dragged her approximately 80 feet to the rear of the car wash, where he sexually assaulted her, the removal of the victim was separate and apart from that which was inherent in the first-degree sexual offense, and therefore, the trial judge did not err in denying defendant’s motion to dismiss the kidnapping charge. State v. Whittington, 318 N.C. 114 , 347 S.E.2d 403, 1986 N.C. LEXIS 2564 (1986).

Where defendant’s conviction of sexual offense was used to raise kidnapping to first-degree kidnapping, the trial judge erred in sentencing defendant for both crimes. State v. Whittington, 318 N.C. 114 , 347 S.E.2d 403, 1986 N.C. LEXIS 2564 (1986).

Defendants’ convictions of both first degree kidnapping and rape against one victim and of first degree kidnapping and both first degree rape and first degree sex offense against the other could not all stand, even though the combination of convictions, because of the manner in which they were consolidated for judgment, resulted in no additional punishment attributable to any of the kidnapping cases, where it could not be said that the jury’s verdict of first degree kidnapping was based upon a sexual assault other than the ones forming the basis for the other convictions. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

The holding in State v. Price, 313 N.C. 297 , 327 S.E.2d 863, (1985), that no principle of double jeopardy was violated by entry of judgments that the defendant committed both rape in the first degree and kidnapping in the first degree, is overruled. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

Where defendant was convicted for two first degree rapes and first degree kidnapping arising out of the same incident, and the jury may have used one of the rapes to elevate the kidnapping from second to first degree, the case would be remanded for resentencing. State v. Johnson, 320 N.C. 746 , 360 S.E.2d 676, 1987 N.C. LEXIS 2402 (1987).

A defendant cannot be convicted of both first degree kidnapping and a sexual assault when the latter was used to prove an element of the kidnapping, and thus where the jury may not have understood that it could only convict for first degree kidnapping by using unindicted sexual assault, rather than the attempted rape of which defendant was convicted, to supply the sexual assault element of the crime of first degree kidnapping, defendant’s convictions of both first degree kidnapping and attempted first degree rape could not stand. State v. Fisher, 321 N.C. 19 , 361 S.E.2d 551, 1987 N.C. LEXIS 2496 (1987).

Evidence of restraint and injury separate from evidence used to indict for first-degree murder held sufficient to also convict defendant of first-degree kidnapping. State v. Wilson, 322 N.C. 117 , 367 S.E.2d 589, 1988 N.C. LEXIS 297 (1988).

Defendant could be convicted of both robbery and kidnapping for the purpose of committing a felony where he forced his way into, and took control of, victim’s car by threatening her with a pistol, completing the force necessary to commit the robbery and, then, by further restraining her in the car and driving her to an isolated park, he exposed her to greater danger than that inherent in the robbery and, thereby, committed the separate crime of kidnapping. State v. Hill, 139 N.C. App. 471, 534 S.E.2d 606, 2000 N.C. App. LEXIS 990 (2000).

The trial court did not err in finding defendant guilty of both common law robbery and second-degree kidnapping in connection with the robbery of a pizza restaurant, where there was sufficient evidence of restraint of an employee beyond what was necessary for the commission of common law robbery, to wit: defendant placed the employee in a choke hold, hit him in the side three times, wrestled with the employee on the floor, grabbed the employee again around the throat, pointed a gun at his head, and marched the employee to the front of the pizza shop. State v. Muhammad, 146 N.C. App. 292, 552 S.E.2d 236, 2001 N.C. App. LEXIS 862 (2001).

Court Required to Arrest Judgment for First-Degree Kidnapping. —

Where defendant was convicted and sentenced for sexual assault and first-degree kidnapping predicated on one sexual assault, Supreme Court required trial court to arrest judgment either on conviction of sexual assault or on conviction of first-degree kidnapping. Defendant could be resentenced for second-degree kidnapping, if judgment on first-degree kidnapping was arrested. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Kidnapping as Felony Supporting Burglary Charge. —

There was not a fatal variance between the indictment charging that defendant broke into the victim’s residence with an intent to sexually assault the victim, a crime not recognized in North Carolina, and the evidence offered at trial as there was not a requirement that a burglary indictment specify the crime a defendant intended to commit at the time that he broke into a victim’s residence, and the indictment properly alleged that defendant intended to commit a felony at the time of the breaking and entering; further, the indictment alleged that defendant intended to kidnap the victim, a crime for which he was convicted. State v. Mangum, 158 N.C. App. 187, 580 S.E.2d 750, 2003 N.C. App. LEXIS 1036 (2003).

First-degree kidnapping is not a lesser included offense of murder. State v. Fernandez, 346 N.C. 1 , 484 S.E.2d 350, 1997 N.C. LEXIS 197 (1997).

First degree kidnapping requires the State to prove facts not required to prove murder, and it addresses a distinct evil, the kidnapping of and failure to release the victim in a safe place or condition; thus, at least one essential element of each crime is not an element of the other. State v. Fernandez, 346 N.C. 1 , 484 S.E.2d 350, 1997 N.C. LEXIS 197 (1997).

Jury, by finding first-degree kidnapping, necessarily found facts sufficient to convict defendant of second-degree kidnapping, a felony which would have supported defendant’s felony murder conviction; even had the jury not been instructed that murder was the equivalent of not being released in a safe place, defendant would have been convicted of felony murder, as either first-degree or second-degree kidnapping would have served as an underlying felony for felony murder. State v. Roache, 358 N.C. 243 , 595 S.E.2d 381, 2004 N.C. LEXIS 340 (2004).

Instruction on Parole Ineligibility in Capital Case. —

Where a State prisoner, who was convicted of first-degree murder, first-degree rape, kidnapping, armed robbery, and the burning of personal property, in violation of G.S. 14-17 , 14-27.2(a)(2), 14-39, 14-87, and 14-66, argued that the sentencing court erred by failing to provide a parole ineligibility instruction, the prisoner, who was sentenced to death for the murder conviction, was not entitled to federal habeas corpus relief because the prisoner would have been eligible for parole under former G.S. 15A-1371(a1) if the jury had recommended life imprisonment; thus, because the prisoner was eligible for parole as a matter of law, the prisoner was not entitled to a parole ineligibility instruction. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

II.Kidnapping, Generally

Prior Contempt Adjudication And Double Jeopardy. —

Defendant’s convictions for kidnapping, non-felonious breaking or entering, and domestic criminal trespass did not violate the Double Jeopardy Clause where several elements contained within the applicable statutory language were not set out in the protective order that the defendant had previously been held in contempt for violating. State v. Gilley, 135 N.C. App. 519, 522 S.E.2d 111, 1999 N.C. App. LEXIS 1177 (1999), cert. denied, 353 N.C. 528 , 549 S.E.2d 860, 2001 N.C. LEXIS 602 (2001).

Subsection (a) of this section defines the offense of kidnapping. Proof of the elements set forth therein is all that the statute requires for a conviction of kidnapping. State v. Brady, 299 N.C. 547 , 264 S.E.2d 66, 1980 N.C. LEXIS 986 (1980).

Offense of kidnapping under G.S. 14-39 is a single continuing offense, lasting from the time of the initial unlawful confinement, restraint or removal until the victim regains his or her free will. State v. Smith, 162 N.C. App. 46, 589 S.E.2d 739, 2004 N.C. App. LEXIS 60 (2004).

“Kidnapping” Defined. —

Subsection (a) of this section defines kidnapping as (1) an unlawful, nonconsensual restraint, confinement or removal from one place to another, (2) for the purpose of committing or facilitating the commission of certain specified acts. On its face, this is all this section requires for a conviction of kidnapping. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

The gist of the offense proscribed by this section is the unlawful, nonconsensual confinement, restraint or removal of victim, for the purposes of committing certain acts specified in the statute. State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, 1980 N.C. App. LEXIS 3088 (1980).

Kidnapping, as defined by this section, is the confinement, restraint or removal of a person against his will for a felonious purpose. State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778, 1982 N.C. App. LEXIS 2729 (1982).

The offense of kidnapping is established upon proof of an unlawful, nonconsensual restraint, confinement, or removal of a person from one place to another, for the purpose of: (1) holding the person for ransom, as a hostage or using them as a shield; (2) facilitating flight from or the commission of any felony; or (3) terrorizing or doing serious bodily harm to the person. G.S. 14-39(a). If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree. G.S. 14-39(b). State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830, 2003 N.C. App. LEXIS 1767 (2003).

Sixteen level enhancement was properly applied under U.S. Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) to defendant who pleaded guilty to illegal reentry after deportation and aggravated felony conviction, because prior North Carolina kidnapping conviction was crime of violence since it was limited to conduct for specific nefarious purpose. United States v. Flores-Granados, 783 F.3d 487, 2015 U.S. App. LEXIS 6112 (4th Cir.), cert. denied, 577 U.S. 893, 136 S. Ct. 224, 193 L. Ed. 2d 169, 2015 U.S. LEXIS 4816 (2015).

Unlawful Removal Constitutes Kidnapping. —

Where a defendant by force and threat of violence took a person and carried him where he did not consent to go, this constitutes kidnapping under this section. State v. Penley, 277 N.C. 704 , 178 S.E.2d 490, 1971 N.C. LEXIS 1067 (1971).

Distance of Removal Is Immaterial. —

It is the fact, not the distance, of forcible removal of the victim that constitutes kidnapping. State v. Lowry, 263 N.C. 536 , 139 S.E.2d 870, 1965 N.C. LEXIS 1330 (1965), cert. denied, 382 U.S. 22, 86 S. Ct. 227, 15 L. Ed. 2d 16, 1965 U.S. LEXIS 538 (1965), limited, State v. Wright, 274 N.C. 380 , 163 S.E.2d 897, 1968 N.C. LEXIS 792 (1968); State v. Reid, 5 N.C. App. 424, 168 S.E.2d 511, 1969 N.C. App. LEXIS 1356 (1969); State v. Barbour, 278 N.C. 449 , 180 S.E.2d 115, 1971 N.C. LEXIS 989 (1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673, 1972 U.S. LEXIS 4121 (1972); State v. Dix, 14 N.C. App. 328, 188 S.E.2d 737, 1972 N.C. App. LEXIS 2126 (1972), rev'd, 282 N.C. 490 , 193 S.E.2d 897, 1973 N.C. LEXIS 1102 (1973).

The asportation requirement has been relaxed so that any carrying away is sufficient, and the distance the victim is carried is immaterial. State v. Ingland, 278 N.C. 42 , 178 S.E.2d 577, 1971 N.C. LEXIS 936 (1971); State v. Murphy, 280 N.C. 1 , 184 S.E.2d 845, 1971 N.C. LEXIS 1085 (1971); State v. Hudson, 281 N.C. 100 , 187 S.E.2d 756, 1972 N.C. LEXIS 1009 (1972), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112, 1974 U.S. LEXIS 1634 (1974); State v. Dix, 14 N.C. App. 328, 188 S.E.2d 737, 1972 N.C. App. LEXIS 2126 (1972), rev'd, 282 N.C. 490 , 193 S.E.2d 897, 1973 N.C. LEXIS 1102 (1973).

200 Feet Not Minor. —

Distance of removal need not be substantial, but where defendant forced victim 200 feet in the course of a robbery, asportation was not “minor” or “merely technical in nature.” In fact, it was unnecessary to extract more money from victim, and trial court did not err in denying motion to dismiss charge of kidnapping. State v. Little, 133 N.C. App. 601, 515 S.E.2d 752, 1999 N.C. App. LEXIS 616 (1999).

Removal of the victim only a few feet could be sufficient to constitute kidnapping in a proper case. State v. Owen, 24 N.C. App. 598, 211 S.E.2d 830, 1975 N.C. App. LEXIS 2450 , cert. denied, 287 N.C. 263 , 214 S.E.2d 435, 1975 N.C. LEXIS 1111 (1975).

Shift of Location Within Same Structure May Constitute Carrying Away. —

Where the shift of location or removal was done within a physical structure, such a removal constituted a carrying away and sufficiently established the offense of kidnapping. State v. Dix, 14 N.C. App. 328, 188 S.E.2d 737, 1972 N.C. App. LEXIS 2126 (1972), rev'd, 282 N.C. 490 , 193 S.E.2d 897, 1973 N.C. LEXIS 1102 (1973).

Where defendants moved victim only as far as her hotel room to get her keys and money, the movement was necessary to complete the robbery and was not sufficient to support convictions for kidnapping. State v. Weaver, 123 N.C. App. 276, 473 S.E.2d 362, 1996 N.C. App. LEXIS 729 , cert. denied, writ denied, 344 N.C. 636 , 477 S.E.2d 53, 1996 N.C. LEXIS 567 (1996).

Each Place of Confinement Not a Separate Offense. —

The offense of kidnapping under this section is a single continuing offense, lasting from the time of the initial unlawful confinement, restraint or removal until the victim regains his or her free will; each place of confinement or each act of asportation does not constitute a separate offense. State v. White, 127 N.C. App. 565, 492 S.E.2d 48, 1997 N.C. App. LEXIS 1123 (1997).

As used in this section, the term “confine” connotes some form of imprisonment within a given area, such as a room, a house or a vehicle. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

Restraint. —

While defendant did ultimately drive the victim back to her home, defendant also forced the victim to get into a car with him immediately after he had sexually assaulted her. This restraint and removal was a distinct criminal transaction that facilitated the accompanying felony offense and was sufficient to constitute the separate crime of kidnapping under North Carolina law. State v. King, 249 N.C. App. 440, 791 S.E.2d 463, 2016 N.C. App. LEXIS 912 (2016).

The term “restrain,” while broad enough to include a restriction upon freedom of movement by confinement, connotes also such a restriction, by force, threat or fraud, without a confinement. Thus, one who is physically seized and held, or whose hands or feet are bound, or who, by the threatened use of a deadly weapon, is restricted in his freedom of motion, is restrained within the meaning of this statute. Such restraint, however, is not kidnapping unless it is (1) unlawful (i.e., without legal right), (2) without the consent of the person restrained (or of his parent or guardian if he be under 16 years of age), and (3) for one of the purposes specifically enumerated in the statute. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978); State v. Moore, 77 N.C. App. 553, 335 S.E.2d 535, 1985 N.C. App. LEXIS 4180 (1985), aff'd, 317 N.C. 144 , 343 S.E.2d 430, 1986 N.C. LEXIS 2385 (1986).

The term “restrain” connotes restriction by force, threat or fraud with or without confinement. Restraint does not have to last for an appreciable period of time and removal does not require movement for a substantial distance. State v. Brayboy, 105 N.C. App. 370, 413 S.E.2d 590, 1992 N.C. App. LEXIS 240 (1992).

Restraint Must Be Separate and Apart from That Inherent in Committing Other Felonies. —

The word “restrain,” as used in this section, connotes a restraint separate and apart from that which is inherent in the commission of the other felony. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

Certain felonies (e.g., forcible rape and armed robbery) cannot be committed without some restraint of the victim. This section was not intended by the legislature to make such restraint, which is an inherent, inevitable feature of such other felony, also kidnapping, so as to permit the conviction and punishment of the defendant for both crimes. To hold otherwise would violate the constitutional prohibition against double jeopardy. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978); State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980); State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981); State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518, 1985 N.C. App. LEXIS 4164 , writ denied, 314 N.C. 670 , 337 S.E.2d 583, 1985 N.C. LEXIS 2140 (1985).

The restraint element necessary for the charge of kidnapping is separate and distinct from the elements necessary to the charge of assault with a deadly weapon with intent to kill inflicting serious injury. State v. Carrillo, 115 N.C. App. 674, 446 S.E.2d 379, 1994 N.C. App. LEXIS 773 (1994).

Restraint or removal is inherently an element of some felonies, such as armed robbery and rape, and therefore, the restraint, confinement or removal required of the crime of kidnapping, has to be something more than that restraint inherently necessary for the commission of these other felonies. State v. Raynor, 128 N.C. App. 244, 495 S.E.2d 176, 1998 N.C. App. LEXIS 6 (1998).

State presented substantial evidence of the required kidnapping element that the restraint be a separate complete act independent of and apart from the attempted rape as: (1) defendant straddled the victim on the sofa, hit the victim, tried to pull up the victim’s tank top, and had defendant’s pants unzipped, at which time defendant had completed the crime of attempted second-degree rape, (2) defendant then pulled the victim from the couch and dragged the victim to the kitchen, and (3) defendant’s acts to restrain the victim while they struggled in the kitchen clearly subjected the victim to greater danger and vulnerability than was inherent in the attempted rape that occurred on the couch. State v. Simpson, 187 N.C. App. 424, 653 S.E.2d 249, 2007 N.C. App. LEXIS 2431 (2007).

Trial court erred by not granting the second defendant’s motion to dismiss the charge under G.S. 14-39 of first-degree kidnapping of the second victim as an inherent aspect of the robbery of the second victim because the second victim was held by the first defendant while he robbed the victims, the second victim was not moved to another location, but was not held for hours or days, nor was she injured. The restraint used against the second victim was an inherent part of the armed robbery and did not expose her to any greater danger than that required to complete the robbery offense. State v. Cole, 199 N.C. App. 151, 681 S.E.2d 423, 2009 N.C. App. LEXIS 1380 (2009), writ denied, 368 N.C. 605 , 780 S.E.2d 833, 2015 N.C. LEXIS 1269 (2015).

Trial court properly denied the motion to dismiss the kidnapping charges with respect to the two women because defendant did not leave the premises after the robbery and sexual offenses were concluded. Rather, he continued to hold the two women in the room at gunpoint for a period of time, engaging in acts wholly unrelated to the robbery and sexual offenses. State v. Bell, 221 N.C. App. 535, 728 S.E.2d 439, 2012 N.C. App. LEXIS 868 (2012).

More Restraint Than Necessary for Robbery. —

The evidence showed that more than a mere technical asportation occurred when defendant restrained and moved victim from the front door of his residence to a back bedroom, and when they then restrained and moved victim to the kitchen, the restraint utilized was more than that inherently necessary for the commission of armed robbery. State v. Raynor, 128 N.C. App. 244, 495 S.E.2d 176, 1998 N.C. App. LEXIS 6 (1998).

Evidence sufficiently established additional restraint beyond that necessary for the robbery for the purpose of facilitating flight, as alleged in the kidnapping indictment. State v. McNeil, 155 N.C. App. 540, 574 S.E.2d 145, 2002 N.C. App. LEXIS 1598 (2002).

As Must Removal of Victim. —

To constitute kidnapping, removal must be separate and apart from that which is an inherent, inevitable part of the commission of another felony. State v. Battle, 61 N.C. App. 87, 300 S.E.2d 276, 1983 N.C. App. LEXIS 2555 (1983).

Where removal is separate and apart from the commission of another felony, subsection (a) of this section allows conviction and punishment for both crimes. State v. Davidson, 77 N.C. App. 540, 335 S.E.2d 518, 1985 N.C. App. LEXIS 4164 , writ denied, 314 N.C. 670 , 337 S.E.2d 583, 1985 N.C. LEXIS 2140 (1985).

The victim’s age is not an essential element of the crime of kidnapping itself, but it is, instead, a factor which relates to the State’s burden of proof in regard to consent. If the victim is shown to be under 16, the State has the burden of showing that he or she was unlawfully confined, restrained, or removed from one place to another without the consent of a parent or legal guardian. Otherwise, the State must prove that the action was taken without his or her own consent. State v. Hunter, 299 N.C. 29 , 261 S.E.2d 189, 1980 N.C. LEXIS 908 (1980); State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, 1980 N.C. App. LEXIS 3088 (1980); State v. Froneberger, 55 N.C. App. 148, 285 S.E.2d 119, 1981 N.C. App. LEXIS 3001 (1981), cert. denied, 305 N.C. 397 , 290 S.E.2d 367, 1982 N.C. LEXIS 1473 (1982).

Asportation No Longer Essential. —

This section, as amended in 1975, removes asportation as an essential element of the crime of kidnapping. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978). See State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980).

Restraint or removal of the victim for any of the purposes specified in the statute is sufficient to constitute kidnapping. Thus, no asportation is required where there is the requisite restraint. State v. Brayboy, 105 N.C. App. 370, 413 S.E.2d 590, 1992 N.C. App. LEXIS 240 (1992).

The legislature rejected the decision in State v. Ingland, 278 N.C. 42 , 178 S.E.2d 577, (1971), to the effect that there must be both detention and asportation of the victim, the statute plainly stating that confinement, restraint or removal of the victim for any one of the three specified purposes is sufficient to constitute the offense of kidnapping. Thus, no asportation whatever is now required where there is the requisite confinement or restraint. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978); State v. Moore, 77 N.C. App. 553, 335 S.E.2d 535, 1985 N.C. App. LEXIS 4180 (1985), aff'd, 317 N.C. 144 , 343 S.E.2d 430, 1986 N.C. LEXIS 2385 (1986).

Substantiality of Time or Distance Not Essential. —

The legislature in 1975 rejected the determinations in State v. Dix, 282 N.C. 490 , 193 S.E.2d 897 (1973), and in State v. Roberts, 286 N.C. 265 , 210 S.E.2d 396 (1974), to the effect that where the State relies upon asportation of the victim to establish a kidnapping, the asportation must be for a substantial distance, and where the State relies upon “dominion and control,” i.e., “confinement” or “restraint,” such must continue “for some appreciable period of time.” Thus, it was clearly the intent of the legislature to make resort to a tape measure or a stop watch unnecessary in determining whether the crime of kidnapping has been committed. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978); State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980); State v. Moore, 77 N.C. App. 553, 335 S.E.2d 535, 1985 N.C. App. LEXIS 4180 (1985), aff'd, 317 N.C. 144 , 343 S.E.2d 430, 1986 N.C. LEXIS 2385 (1986).

The use of actual physical force or violence is not always essential to the commission of the offense of kidnapping. State v. Bruce, 268 N.C. 174 , 150 S.E.2d 216, 1966 N.C. LEXIS 1156 (1966); State v. Penley, 277 N.C. 704 , 178 S.E.2d 490, 1971 N.C. LEXIS 1067 (1971); State v. Barbour, 278 N.C. 449 , 180 S.E.2d 115, 1971 N.C. LEXIS 989 (1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673, 1972 U.S. LEXIS 4121 (1972).

Threats and intimidation are equivalent to the use of actual force or violence. State v. Ingland, 278 N.C. 42 , 178 S.E.2d 577, 1971 N.C. LEXIS 936 (1971); State v. Hudson, 281 N.C. 100 , 187 S.E.2d 756, 1972 N.C. LEXIS 1009 (1972), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112, 1974 U.S. LEXIS 1634 (1974).

The crime of kidnapping is frequently committed by threats and intimidation and appeals to fears of the victim which are sufficient to put an ordinarily prudent person in fear for his life or personal safety, and to overcome the will of the victim and secure control of his person without his consent and against his will, and are equivalent to the use of actual force or violence. State v. Bruce, 268 N.C. 174 , 150 S.E.2d 216, 1966 N.C. LEXIS 1156 (1966); State v. Penley, 277 N.C. 704 , 178 S.E.2d 490, 1971 N.C. LEXIS 1067 (1971); State v. Barbour, 278 N.C. 449 , 180 S.E.2d 115, 1971 N.C. LEXIS 989 (1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673, 1972 U.S. LEXIS 4121 (1972).

Proof of Actual Force Held Unnecessary. —

Where defendant entered victim’s car without her permission and ordered her to drive him around, telling her that if she did as he said, no one would be hurt, and victim thought defendant had a pistol under his jacket, a jury could reasonably infer from such evidence that victim acquiesced to defendant’s demands because she feared for her safety; it was not necessary for the State to prove use of actual physical force. State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778, 1982 N.C. App. LEXIS 2729 (1982).

Threats by actions may be more effective than when made by mere words, and defendant’s uninvited entrance into the car in itself constituted a threat under this section. State v. Ballard, 28 N.C. App. 146, 220 S.E.2d 205, 1975 N.C. App. LEXIS 1696 (1975).

Defendant’s conduct on first entering car and in directing the victim where to drive constituted such a threat as to put an ordinarily prudent person in fear for her life or personal safety so as to secure control of her person against her will, and from that point on there was an ample showing of asportation to constitute the crime of kidnapping. State v. Ballard, 28 N.C. App. 146, 220 S.E.2d 205, 1975 N.C. App. LEXIS 1696 (1975).

Kidnapping by Means of Fraud Rather Than Force. —

The use of fraud instead of force to effect a kidnapping is a violation of the kidnapping statute. State v. Ingland, 278 N.C. 42 , 178 S.E.2d 577, 1971 N.C. LEXIS 936 (1971); State v. Hudson, 281 N.C. 100 , 187 S.E.2d 756, 1972 N.C. LEXIS 1009 (1972), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112, 1974 U.S. LEXIS 1634 (1974); State v. Alston, 294 N.C. 577 , 243 S.E.2d 354, 1978 N.C. LEXIS 1291 (1978); State v. Sturdivant, 304 N.C. 293 , 283 S.E.2d 719, 1981 N.C. LEXIS 1339 (1981).

Where false and fraudulent representations or fraud amounting substantially to a coercion of the will of the kidnapped person are used as a substitute for force in effecting kidnapping, there is, in truth and in law, no consent at all on the part of the victim, and under those circumstances the law has long considered fraud and violence as the same in the kidnapping of a person. State v. Ingland, 278 N.C. 42 , 178 S.E.2d 577, 1971 N.C. LEXIS 936 (1971); State v. Murphy, 280 N.C. 1 , 184 S.E.2d 845, 1971 N.C. LEXIS 1085 (1971); State v. Jackson, 309 N.C. 26 , 305 S.E.2d 703, 1983 N.C. LEXIS 1312 (1983).

The use of fraud, threats or intimidation is equivalent to the use of force or violence so far as a charge of kidnapping is concerned. State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

The unlawful taking and carrying away of a human being fraudulently is kidnapping within the meaning of this section. State v. Barbour, 278 N.C. 449 , 180 S.E.2d 115, 1971 N.C. LEXIS 989 (1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673, 1972 U.S. LEXIS 4121 (1972).

Trial court properly denied the defendant’s motion to dismiss the kidnapping charge because the State presented substantial evidence that the defendant obtained consent from the victim by falsely telling the victim that he was stranded and needed a ride; from this evidence, the jury could infer that the scene of the shooting was not a place to which the victim would normally have gone willingly absent the defendant’s fraudulent representations. State v. Davis, 158 N.C. App. 1, 582 S.E.2d 289, 2003 N.C. App. LEXIS 932 (2003).

Consent of Victim Negates Offense. —

The term “kidnap,” by itself, continues to have a precise and definite legal meaning under subsection (a) of this section, to wit, the unlawful seizure of a person against his will. In short, common sense dictates that one cannot unlawfully kidnap or unlawfully restrain another with his consent. State v. Hall, 305 N.C. 77 , 286 S.E.2d 552, 1982 N.C. LEXIS 1247 (1982).

Consent of Parent. —

State failed to prove that defendant kidnapped his minor sons because it could not show that the confinement was without defendant’s consent when defendant was doing the confining; the State provided no basis for construing the statute to preclude a kidnapping charge against a third person when defendant consented to confinement of his sons but to allow the State to prosecute defendant for confining his sons. State v. Pender, 243 N.C. App. 142, 776 S.E.2d 352, 2015 N.C. App. LEXIS 741 (2015).

There is no kidnapping when a parent or legal custodian consents to the unlawful confinement of his or her minor child, regardless whether the child himself or herself consents to the confinement; the plain language requires that only one parent, “a parent,” consent to the confinement. State v. Pender, 243 N.C. App. 142, 776 S.E.2d 352, 2015 N.C. App. LEXIS 741 (2015).

State Must Prove One of the Purposes in this Section. —

Since kidnapping is a specific intent crime, the State must prove that the defendant unlawfully confined, restrained, or removed the person for one of the eight purposes set out in the statute. State v. Moore, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

The unlawful confinement, restraint, or removal of a person is kidnapping only when it is done for one of the purposes stated in this statute. State v. Ellis, 90 N.C. App. 655, 369 S.E.2d 642, 1988 N.C. App. LEXIS 582 (1988).

Listed Purposes Not Mutually Exclusive. —

The purposes specified in subsection (a) of this section are not mutually exclusive. State v. Hall, 305 N.C. 77 , 286 S.E.2d 552, 1982 N.C. LEXIS 1247 (1982).

Only One Purpose Need Be Proved. —

Indictments under the kidnapping statute may allege one or several of the purposes set forth in subsection (a), but the State need prove only one purpose in order to sustain its burden of proof as to that element of the crime. State v. Sellars, 52 N.C. App. 380, 278 S.E.2d 907, 1981 N.C. App. LEXIS 2474 , cert. denied, 304 N.C. 200 , 285 S.E.2d 108, 1981 N.C. LEXIS 1464 (1981); State v. Moore, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986); State v. Surrett, 109 N.C. App. 344, 427 S.E.2d 124, 1993 N.C. App. LEXIS 270 (1993).

State Is Restricted to the Purposes Alleged in the Indictment. —

The indictment in a kidnapping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment. State v. Moore, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

Defendant was entitled to a new trial where the trial court instructed the jury on terrorizing under subdivision (a)(3) of this section, while the indictment alleged that the victim was restrained for the purpose of facilitating the commission of a felony or facilitating the flight of any person following the commission of a felony under subdivision (a)(2). State v. Mitchell, 77 N.C. App. 663, 97 N.C. App. 143, 335 S.E.2d 793, 1985 N.C. App. LEXIS 4186 (1985).

Jury May Only Convict on Theory of Purpose Alleged. —

Where the indictment for a crime alleges a theory of the crime, the State is held to proof of that theory and the jury is only allowed to convict on that theory. Therefore, where the indictment charged that defendant kidnapped one victim for the purpose (1) of committing armed robbery and assault on him, and (2) to facilitate his flight after committing the felonies of armed robbery and murder in his crimes against another victim, and in charging the jury the trial judge did not specify either purpose expressed in the indictment, there was error in the vagueness of the judge’s charge, because the jury could have convicted the defendant of kidnapping the first victim to facilitate his flight after the armed robbery, a charge not named in the indictment. State v. Taylor, 304 N.C. 249 , 283 S.E.2d 761, 1981 N.C. LEXIS 1354 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398, 1983 U.S. LEXIS 4714 (1983).

Evidence of More Than One Purpose Where Indictment Charges Only One. —

So long as the evidence proves the purpose charged in the indictment, the fact that it also shows that the kidnapping was effectuated for another purpose enumerated in subsection (a) of this section is immaterial and may be disregarded. State v. Hall, 305 N.C. 77 , 286 S.E.2d 552, 1982 N.C. LEXIS 1247 (1982).

Evidence of Purpose Held Sufficient. —

When defendant presented the victim’s withdrawal slip and driver’s license to the bank while holding the victim hostage in the passenger’s seat, she made a false representation to the bank that the withdrawal was legitimate and had the continuing support of the victim; because defendant’s misrepresentation was clearly calculated to mislead and did in fact mislead, defendant’s actions constituted a false pretense and the “purpose” element of the kidnapping charge was satisfied. State v. Parker, 354 N.C. 268 , 553 S.E.2d 885, 2001 N.C. LEXIS 1090 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162, 2002 U.S. LEXIS 4081 (2002).

Exposure to Danger Not Involving an Enumerated Purpose Is Not Kidnapping. —

Regardless of the danger to which the victims are exposed, unless the purpose of the exposure is either felonious, or otherwise enumerated, and not merely unlawful, the statutory crime of kidnapping has not been committed. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

It is not necessary for the unlawfulness to exist from the beginning of the transaction. State v. Barbour, 278 N.C. 449 , 180 S.E.2d 115, 1971 N.C. LEXIS 989 (1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673, 1972 U.S. LEXIS 4121 (1972).

Accomplishment of Purpose Not Essential. —

It is not necessary under this statute to show that the kidnapping accomplished its purpose. State v. Moore, 77 N.C. App. 553, 335 S.E.2d 535, 1985 N.C. App. LEXIS 4180 (1985), aff'd, 317 N.C. 144 , 343 S.E.2d 430, 1986 N.C. LEXIS 2385 (1986).

What Intent Is Required. —

This section makes it a crime for a person to confine, restrain or remove a person for any of the eight separate purposes set forth therein; and in order to be guilty of kidnapping the defendant must have formed the intent to do one of these eight purposes at the time he confined, restrained or removed the victim. State v. Moore, 74 N.C. App. 464, 328 S.E.2d 864, 1985 N.C. App. LEXIS 3541 (1985), modified, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

How Long Intent Must Be Retained. —

The offense of kidnapping with intent to rape does not require that defendant retain the intent throughout the offense, but if he, at any time during the kidnapping, has an intent to gratify his passion upon the victim, notwithstanding any resistance on her part, the defendant would be guilty of the offense. State v. Franks, 74 N.C. App. 661, 329 S.E.2d 717, 1985 N.C. App. LEXIS 3558 (1985); State v. Whitaker, 76 N.C. App. 52, 331 S.E.2d 752, 1985 N.C. App. LEXIS 3810 (1985), aff'd in part and rev'd in part, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

Offense of kidnapping with intent to commit rape was complete if defendant at any time during the confinement had the requisite intent; it was immaterial that he changed his mind. State v. Franks, 74 N.C. App. 661, 329 S.E.2d 717, 1985 N.C. App. LEXIS 3558 (1985).

Inferring Intent. —

On a charge of kidnapping with the intent to rape, the intent to commit rape may be inferred from the evidence without a showing of an actual physical attempt to have intercourse. State v. Lang, 46 N.C. App. 138, 264 S.E.2d 821, 1980 N.C. App. LEXIS 2807 (1980).

Aiding and Abetting. —

In a prosecution for kidnapping, the defendant could be convicted upon the State’s showing that he accompanied the principal during the removal of the victim for the purpose of facilitating the commission of the victim’s murder, since the overall circumstances, including the defendant’s actual presence throughout the entire criminal episode and the defendant’s handing of guns to the actual perpetrators of the murder, warranted the inference that the defendant intended to aid and abet the principal by accompanying him. State v. Easter, 51 N.C. App. 190, 275 S.E.2d 861, 1981 N.C. App. LEXIS 2221 , cert. denied, 303 N.C. 183 , 280 S.E.2d 455, 1981 N.C. LEXIS 1284 (1981).

Release of Victim. —

Victim released in a “safe place” where she was voluntarily released in a motel parking lot. State v. White, 127 N.C. App. 565, 492 S.E.2d 48, 1997 N.C. App. LEXIS 1123 (1997).

The element of failure to release in a safe place applies to a kidnapping by restraint and confinement, and not just to kidnapping by removal. State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).

Where defendant was indicted for first-degree kidnapping, but the arrest warrant charged him with second-degree kidnapping, the trial court properly denied defendant’s attempt to admit evidence of the arrest warrant since it had no relevance on the issue of defendant’s guilt or whether the victim was released in a “safe place,” because the allegations of an arrest warrant do not necessarily “frame” what is relevant to a particular criminal case tried upon an indictment. State v. Corbett, 168 N.C. App. 117, 607 S.E.2d 281, 2005 N.C. App. LEXIS 146 (2005), aff'd, 360 N.C. 287 , 624 S.E.2d 625, 2006 N.C. LEXIS 4 (2006).

Charge of Kidnapping Requires Victim to be Alive. —

Prosecutor’s statement of the facts to support defendant’s guilty plea to kidnapping in violation of G.S. 14-39 demonstrated that defendant’s only conduct that could have constituted kidnapping took place after the victim was stabbed and killed by defendant’s wife. Because kidnapping required a live victim, the trial court erred in accepting defendant’s guilty plea. State v. Keller, 198 N.C. App. 639, 680 S.E.2d 212, 2009 N.C. App. LEXIS 1350 (2009), writ denied, 367 N.C. 800 , 764 S.E.2d 903, 2014 N.C. LEXIS 904 (2014), writ denied, 369 N.C. 532 , 795 S.E.2d 768, 2017 N.C. LEXIS 96 (2017).

Aggravating Circumstance to Felony Murder. —

Trial court did not err in allowing the jury to find as an aggravating circumstance that a murder was committed during a kidnapping where the evidence showed that, after the elderly victim invited defendant into his home, defendant grabbed the victim, choked him until he became unconscious, bound him, covered his face in tape, and left him to die from asphyxiation under a bed before defendant then ransacked the victim’s home and left with cash, other personal items, and the victim’s car. State v. Smith, 359 N.C. 199 , 607 S.E.2d 607, 2005 N.C. LEXIS 28 , cert. denied, 546 U.S. 850, 126 S. Ct. 109, 163 L. Ed. 2d 121, 2005 U.S. LEXIS 6884 (2005).

Evidence held sufficient to be submitted to the jury on the charge of kidnapping. State v. Dorsett, 245 N.C. 47 , 95 S.E.2d 90, 1956 N.C. LEXIS 523 (1956); State v. Williams, 275 N.C. 77 , 165 S.E.2d 481, 1969 N.C. LEXIS 350 (1969); State v. Barrow, 292 N.C. 227 , 232 S.E.2d 693, 1977 N.C. LEXIS 1056 (1977); State v. Hoots, 33 N.C. App. 258, 234 S.E.2d 764, 1977 N.C. App. LEXIS 2174 (1977).

Where a motorist who invited a hitchhiker to ride with him is compelled by the force and intimidation exerted upon him by the hitchhiker to abandon his own desired course of travel and to drive his car as commanded by the hitchhiker, there is a kidnapping. State v. Barbour, 278 N.C. 449 , 180 S.E.2d 115, 1971 N.C. LEXIS 989 (1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673, 1972 U.S. LEXIS 4121 (1972).

Evidence that after defendant had shot at victim’s car several times, he got into the car and slapped her twice, and that then the car pulled down a dirt road, viewed in the light most favorable to the State, permitted a reasonable inference that defendant unlawfully confined the victim in her car. State v. Strickland, 321 N.C. 31 , 361 S.E.2d 882, 1987 N.C. LEXIS 2505 (1987).

Evidence in trial for sexual offenses against three minor teenage boys held sufficient for the jury properly to infer a lack of parental consent to the defendant’s alleged confinement, restraint or removal of victim. State v. Gross, 104 N.C. App. 97, 408 S.E.2d 531, 1991 N.C. App. LEXIS 986 (1991).

There is substantial evidence from which the jury could infer the victim was kidnapped where the defendant called her into a room, locked the door, and physically restrained her. State v. Mebane, 106 N.C. App. 516, 418 S.E.2d 245, 1992 N.C. App. LEXIS 565 (1992).

Where defendant forced victim into his car despite her screams, fighting, and struggling with him, demanded that she lay down and be quiet, where victim’s screams were heard by others in the parking lot and she stated that she was “scared to death” and crawled out of the window of defendant’s moving vehicle and where defendant attempted to prevent her escape by driving the vehicle at a speed of between fifteen and twenty miles per hour while struggling to hold the victim in the car, this evidence would support a finding that the defendant intended by his actions and commands to put the victim in a state of intense fright or apprehension; the fact that he did not have the opportunity fully to carry out his intentions because of her fortunate and speedy escape was of no avail. State v. Surrett, 109 N.C. App. 344, 427 S.E.2d 124, 1993 N.C. App. LEXIS 270 (1993).

Substantial evidence found that the victim-infant was unlawfully confined, restrained and removed within the meaning of this section. State v. Pendergrass, 111 N.C. App. 310, 432 S.E.2d 403, 1993 N.C. App. LEXIS 797 (1993).

The removal of a clerk from the part of a convenience store where the money was kept to some other location was sufficient to support the charge of kidnapping. State v. Baker, 338 N.C. 526 , 451 S.E.2d 574, 1994 N.C. LEXIS 727 (1994).

Removal of a victim from one location to another prior to murdering her supported a charge of kidnapping. State v. Baker, 338 N.C. 526 , 451 S.E.2d 574, 1994 N.C. LEXIS 727 (1994).

Substantial evidence, including the contents of victim’s stomach, the motive, the weapon, the fact that defendant looked into who owned defendant’s car, parked outside his former girl friend’s house, the fact that he had his car painted and cleaned after victim disappeared, Mitochondrial DNA sequencing, and other circumstances, supported the conviction of defendant under G.S. 14-17 and this section. State v. Underwood, 134 N.C. App. 533, 518 S.E.2d 231, 1999 N.C. App. LEXIS 856 (1999), cert. dismissed, 352 N.C. 669 , 535 S.E.2d 33, 2000 N.C. LEXIS 747 (2000).

Evidence showed the required restraint for kidnapping where an inference could be made that defendant fraudulently induced the victim to return to his apartment by assuring her that he would help her, fraudulently induced her to enter his bedroom, and once there, restrained her, brandished a knife, and threatened either to have sex with her or to kill her. State v. Robertson, 149 N.C. App. 563, 562 S.E.2d 551, 2002 N.C. App. LEXIS 288 (2002).

Testimony that the victim’s mother did not give the victim permission to go with defendant was sufficient to support his conviction for kidnapping. State v. Quinn, 166 N.C. App. 733, 603 S.E.2d 886, 2004 N.C. App. LEXIS 2025 (2004).

Evidence that defendant, a gang member, (1) on one night met with other gang members to participate in an initiation of gang members, (2) participated in obtaining bullets to support gang missions, (3) asked to be allowed to shoot a victim that was abducted by other gang members, and (4) grumbled when he was not chosen to shoot and kill the victim, was sufficient to show that defendant joined with one or more persons to kidnap, rob, assault with a deadly weapon, and attempt to murder the victim, and was constructively present when the crimes were carried out. State v. Tirado, 358 N.C. 551 , 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

Trial court did not err in denying defendant’s motion to dismiss the second-degree kidnapping charges, a violation of G.S. 14-39(a), which arose from two separate incidents in which defendant beat and restrained his girlfriend against her will because the evidence was sufficient to support the trial court’s denial of defendant’s motion to dismiss the charges of second-degree kidnapping. The record showed that the hospital staff that treated defendant’s girlfriend testified that defendant restrained his girlfriend by refusing to allow her to seek medical treatment for a broken arm after the first incident, and after the second incident, a police officer testified that the girlfriend told him that defendant had been holding her against her will for days and would not let her contact her family. State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863, 2005 N.C. App. LEXIS 2289 (2005).

Sufficient evidence supported defendant’s conviction of first degree kidnapping, G.S. 14-39 , as there was evidence of a mitochondrial DNA match between defendant’s parent and two hairs found in the victim’s bedroom. This evidence strongly suggested that the assailant was someone in the same maternal line as defendant’s parent, and defendant’s two brothers were in custody when the attack on the victim took place. State v. McAllister, 190 N.C. App. 289, 660 S.E.2d 247, 2008 N.C. App. LEXIS 832 (2008).

Pursuant to G.S. 15-144.1 , trial court properly declined to instruct a jury regarding assault on a female. Conduct that defendant relied on as supporting assault charge was unrelated to conduct supporting first degree rape under G.S. 14-27.2 ; however, that conduct supported G.S. 14-39 kidnapping conviction. State v. Thomas, 196 N.C. App. 523, 676 S.E.2d 56, 2009 N.C. App. LEXIS 520 (2009).

Evidence was sufficient to establish that defendant confined, restrained, or removed a victim from one place to another place independent of the restraint required to undertake a rape, such that denial of a motion to dismiss a G.S.14-39 kidnapping charge was proper: (1) defendant threatened the victim with a gun while she was in his car; (2) when she tried to escape, he grabbed her and pulled her back into the car and sprayed her in the face with mace; (3) he drove her away from her car and children and told her that if she tried to jump out, he had his hand on the rifle’s trigger and he would kill her; (4) when she jumped out, he stopped the car and again forced her back into the car at gunpoint; (5) he drove to a secluded, wooded area and, only then, committed the rape; (6) defendant deceived the victim into voluntarily going with him that evening by telling her he had something important to show her; and (7) such deceit, unnecessary for the rape, was sufficient to support a conviction of kidnapping. State v. Thomas, 196 N.C. App. 523, 676 S.E.2d 56, 2009 N.C. App. LEXIS 520 (2009).

State’s evidence was sufficient to show that at the time defendant induced a victim to enter his car on the pretext of paying her money in return for a sexual act, his intent was to assault her, and a reasonable mind could conclude from the evidence that had the victim known of such intent, she would not have consented to have been moved by defendant from the place where she first encountered him. State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412, 2009 N.C. App. LEXIS 2214 (2009).

Although defendant was never in the presence of the intended victim, evidence of a plan and defendant’s overt act of lying in wait behind the residence of the intended victim supported defendant’s conviction for attempted kidnapping. State v. Lawrence, 210 N.C. App. 73, 706 S.E.2d 822, 2011 N.C. App. LEXIS 345 (2011), rev'd, 365 N.C. 506 , 723 S.E.2d 326, 2012 N.C. LEXIS 265 (2012).

Circumstantial evidence of actions taken against a victim under sixteen was sufficient to establish lack of parental consent to support a kidnapping conviction under G.S. 14-39 , although the victim’s parents did not testify as to lack of consent, where the State presented evidence that, having shot and repeatedly stabbed the victim, the codefendants found the victim after she crawled outside and removed her from the yard for the stated purpose of killing her while she was incapable of escaping. Thus, it was reasonable to infer that the minor victim’s parents did not consent to the removal. State v. Phillips, 365 N.C. 103 , 711 S.E.2d 122, 2011 N.C. LEXIS 385 (2011), cert. denied, 565 U.S. 1204, 132 S. Ct. 1541, 182 L. Ed. 2d 176, 2012 U.S. LEXIS 1493 (2012).

Evidence Held Insufficient. —

Absent evidence indicating how or why defendant got together with victim, or what occurred between the time they were seen together and the time victim was shot, the State failed to prove beyond a reasonable doubt that defendant restrained, confined or removed victim within the meaning of this section, so as to support a conviction on the charge of kidnapping. State v. Robbins, 319 N.C. 465 , 356 S.E.2d 279, 1987 N.C. LEXIS 2085 , cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226, 1987 U.S. LEXIS 4302 (1987).

Evidence in case was not sufficient to show that the defendant unlawfully confined, restrained, or removed the victim from one place to another without his consent; thus, it was error to submit to the jury kidnapping as a possible verdict. State v. Skeels, 346 N.C. 147 , 484 S.E.2d 390, 1997 N.C. LEXIS 217 (1997).

Where there was no evidence regarding the circumstances under which the defendant entered the victim’s truck or under what circumstances the victim drove to the area where he was killed it was error to submit kidnapping to the jury as a possible verdict. State v. Skeels, 346 N.C. 147 , 484 S.E.2d 390, 1997 N.C. LEXIS 217 (1997).

Substantial evidence did not support defendant’s kidnapping conviction under G.S.14-39(a) as defendant raped a victim wholly in a guest bedroom, and there was no evidence of confinement, restraint, or removal, other than that which was inherent to the offense of rape itself; thus, the case was remanded for resentencing since defendant’s rape and sex offense charges were consolidated. State v. Simmons, 191 N.C. App. 224, 662 S.E.2d 559, 2008 N.C. App. LEXIS 1188 (2008).

Defendant’s kidnapping convictions required reversal, because the evidence showed that any confinement or restraint of the named victims was solely to facilitate the commission of the attempted robbery. State v. Yarborough, 198 N.C. App. 22, 679 S.E.2d 397, 2009 N.C. App. LEXIS 1078 (2009), cert. denied, 363 N.C. 812 , 693 S.E.2d 143, 2010 N.C. LEXIS 144 (2010).

When an appellate court held insufficient evidence supported defendant’s second-degree kidnapping conviction, it was error not to consider if defendant committed attempted second-degree kidnapping because: (1) that was the North Carolina Supreme Court’s practice; and (2) sufficient evidence showed defendant committed that crime. State v. Stokes, 367 N.C. 474 , 756 S.E.2d 32, 2014 N.C. LEXIS 290 (2014).

Double Jeopardy Violation. —

Defendant’s convictions for first-degree kidnapping, first-degree sexual offense, and second-degree sexual offense violated defendant’s right against double jeopardy, because defendant restrained the victim solely for the purposes of committing sexual assaults and strangulation. State v. Martin, 222 N.C. App. 213, 729 S.E.2d 717, 2012 N.C. App. LEXIS 944 (2012), cert. dismissed, 371 N.C. 485 , 818 S.E.2d 288, 2018 N.C. LEXIS 831 (2018).

III.Holding Victim for Ransom or as Hostage

The term “hostage,” as used in subdivision (a)(1) of this section, implies the unlawful taking, restraining or confining of a person with the intent that the person or victim be held as security for the performance or forbearance of some act by a third person. State v. Lee, 33 N.C. App. 162, 234 S.E.2d 482, 1977 N.C. App. LEXIS 2119 (1977).

To hold a person as hostage means to hold that person as security for the performance or forbearance of some act by some third person. State v. Moore, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

Evidence That Victim Was Held as Hostage Held Sufficient. —

Although at the time defendant first removed victim from her employer’s parking lot his purpose was to convince her to return to him, the evidence was sufficient to support a finding that subsequently the defendant confined the victim as security for prevention of his arrest by law enforcement authorities and to extract from them a promise that he would not go to jail, which constituted holding victim as a hostage within the meaning of the kidnapping statute. State v. Moore, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

IV.Facilitating Commission of Felony or Flight

No Conviction When Restraint an Inherent Feature of Other Felony. —

Under this section, as construed and applied in State v. Fulcher, 294 NC 503, 243 S.E.2d 338 (1978), a person cannot be convicted of kidnapping when the only evidence of restraint is that which is an inherent, inevitable feature of another felony such as armed robbery. State v. Beatty, 347 N.C. 555 , 495 S.E.2d 367, 1998 N.C. LEXIS 7 (1998).

Where restraint or asportation is not an inherent feature of some other felony, etc. then the unlawful restraint or asportation of a person against that person’s will for the purpose of committing a felony is kidnapping. State v. Alston, 61 N.C. App. 454, 300 S.E.2d 857, 1983 N.C. App. LEXIS 2717 (1983), rev'd, 310 N.C. 399 , 312 S.E.2d 470, 1984 N.C. LEXIS 1585 (1984).

Kidnapping charges were proper under G.S. 14-39(a) because the restraint of the victims through blindfolding and binding the victims on the floor during an armed robbery was not necessary to effectuate the armed robbery of the victims and the victims were placed in greater danger than that inherent in the offense of robbery with a dangerous weapon. State v. Ly, 189 N.C. App. 422, 658 S.E.2d 300, 2008 N.C. App. LEXIS 650 (2008).

Trial court did not err by denying defendant’s motion to dismiss the kidnapping charge because defendant’s removal of the victim from the bedroom to the living room after stealing her car keys constituted restraint and removal not integral to the underlying armed robbery. State v. Thomas, 268 N.C. App. 121, 834 S.E.2d 654, 2019 N.C. App. LEXIS 846 (2019).

Proof of Intent to Commit a Felony. —

When an indictment alleges an intent to commit a particular felony, the State must prove the particular felonious intent alleged. Intent, or the absence of it, may be inferred from the circumstances surrounding the event and must be determined by the jury. State v. White, 307 N.C. 42 , 296 S.E.2d 267, 1982 N.C. LEXIS 1592 (1982); State v. Moore, 77 N.C. App. 553, 335 S.E.2d 535, 1985 N.C. App. LEXIS 4180 (1985), aff'd, 317 N.C. 144 , 343 S.E.2d 430, 1986 N.C. LEXIS 2385 (1986); State v. Whitaker, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

As substantial evidence allowed a jury to infer that a defendant’s removal of a victim through her house was to aid his attempts to rape her, his kidnapping conviction was affirmed. State v. Rogers, 153 N.C. App. 203, 569 S.E.2d 657, 2002 N.C. App. LEXIS 1126 (2002).

Felony Need Not Be Committed Against Kidnapping Victim. —

It is not necessary that the felony which was facilitated by the kidnapping must also be committed against the victim of the kidnapping, because the statute clearly requires only that the kidnapping facilitate the commission of any felony. State v. Moore, 77 N.C. App. 553, 335 S.E.2d 535, 1985 N.C. App. LEXIS 4180 (1985), aff'd, 317 N.C. 144 , 343 S.E.2d 430, 1986 N.C. LEXIS 2385 (1986).

Felony Involved Need Not Be Specified in Indictment. —

An essential element of kidnapping under subdivision (a)(2) of this section is that the confinement, restraint or removal be for the purpose of facilitating the commission of any felony or facilitating escape following the commission of a felony. The requirements of G.S. 15A-924(a)(5) are met for purposes of alleging this element by the allegation in the indictment that the confinement, restraint, or removal was carried out for the purpose of facilitating “a felony” or escape following “a felony.” It is not required that the indictment specify the felony referred to in subdivision (a)(2). State v. Freeman, 314 N.C. 432 , 333 S.E.2d 743, 1985 N.C. LEXIS 2003 (1985).

No Conviction for Kidnapping to Facilitate an Assault Where the Assault Charge was Unsupported by Evidence. —

The defendant’s kidnapping conviction based on an indictment charging that the defendant kidnapped the victim “to facilitate the commission of a felony” was overturned where; based on the court’s earlier finding that the state’s assertion that the defendant committed two assaults was unsupported by evidence, it held the kidnapping conviction based on the alleged second assault plain error. State v. Brooks, 138 N.C. App. 185, 530 S.E.2d 849, 2000 N.C. App. LEXIS 601 (2000).

Language of Indictment Upheld. —

An indictment alleging that defendant kidnapped victim “by unlawfully confining, restraining, or removing her from one place to another without her consent for the purpose of committing a felony . . . ” charges the offense in the language of the statute and is sufficient. All of the elements of the crime of kidnapping are clearly alleged in the indictment. The additional “Rape or Robbery” language in the indictment, following “committing a felony,” is mere harmless surplusage and may properly be disregarded in passing upon its validity. State v. Freeman, 314 N.C. 432 , 333 S.E.2d 743, 1985 N.C. LEXIS 2003 (1985).

Lesser Included Offenses. —

Defendant was improperly convicted of second-degree kidnapping for the purpose of committing the crime of felonious escape because the State failed to prove the elements of felonious escape; however, the jury’s verdict of guilty contained all the elements of the lesser included offense of false imprisonment. State v. Miller, 146 N.C. App. 494, 553 S.E.2d 410, 2001 N.C. App. LEXIS 975 (2001).

Evidence held sufficient to convict defendant of kidnapping for the purpose of facilitating the commission of armed robbery. State v. Torbit, 77 N.C. App. 816, 336 S.E.2d 122, 1985 N.C. App. LEXIS 4395 (1985).

Forced removal of clerk to prescription counter of drug store during attempted armed robbery with intent to steal drugs was a mere technical asportation and insufficient to support conviction of separate offense of kidnapping. State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981).

The evidence supported a reasonable inference that defendant removed his victim for the purpose of facilitating an attempt to rape her, where he grabbed her by the throat, ordered her to drive to a secluded, deserted parking lot beside a bus and turn off her taxi’s lights, commanded her to pull her pants down to her knees and inquired about her underclothing, and stated his intent to commit at least one manner of sexual attack on her, not necessarily to the exclusion of any other. The jury could have reasonably inferred that, but for the victim’s ingenuity and courage, she would have been subjected to attempted forcible sexual intercourse. State v. Whitaker, 316 N.C. 515 , 342 S.E.2d 514, 1986 N.C. LEXIS 2165 (1986).

Evidence held sufficient to show that defendant abducted victim to facilitate attempted robbery of store with a dangerous weapon where it tended to show that while still attempting to complete the robbery he abducted and threatened her in an effort to coerce night manager into turning the store’s money over to him. State v. Harlee, 85 N.C. App. 159, 354 S.E.2d 348, 1987 N.C. App. LEXIS 2556 (1987).

Where one of the robbers approached victim, pointed a gun at him, and victim did not move and was not injured the act of threatening with a gun was an inherent inevitable feature of the robbery and was insufficient to support a conviction for kidnapping. State v. Beatty, 347 N.C. 555 , 495 S.E.2d 367, 1998 N.C. LEXIS 7 (1998).

Where the evidence showed that the victim was transported in her car to the location of the murder, that defendant took the victim’s keys, and that he then drove back to and attempted to rob the store amply supports submission of felony murder with kidnapping as the underlying felony. State v. Richardson, 346 N.C. 520 , 488 S.E.2d 148, 1997 N.C. LEXIS 489 (1997), cert. denied, 522 U.S. 1056, 118 S. Ct. 710, 139 L. Ed. 2d 652, 1998 U.S. LEXIS 190 (1998), writ denied, 362 N.C. 478 , 667 S.E.2d 272, 2008 N.C. LEXIS 707 (2008), writ denied, 368 N.C. 770 , 782 S.E.2d 736, 2016 N.C. LEXIS 227 (2016).

Evidence was sufficient to support a kidnapping conviction where the kidnapping was based on evidence of the defendant’s ruse of luring the victim away from his home to the murder site under the pretense of earning money. State v. Call, 349 N.C. 382 , 508 S.E.2d 496, 1998 N.C. LEXIS 848 (1998).

Evidence indicated that defendant’s assault on a victim was complete and that defendant then removed the victim to a different location to facilitate defendant’s flight from the assault scene. State v. Scott, 161 N.C. App. 104, 587 S.E.2d 485, 2003 N.C. App. LEXIS 1999 (2003).

Evidence that defendant first robbed a victim, then forcibly restrained him and moved him about an apartment at gunpoint for use as an interpreter to facilitate the robbery of the apartment’s Spanish-speaking occupants, was sufficient to support defendant’s conviction under G.S. 14-39(a) because defendant’s actions exposed the victim to greater danger than that inherent in the armed robbery of the victim itself. State v. McCree, 160 N.C. App. 19, 584 S.E.2d 348, 2003 N.C. App. LEXIS 1667 (2003).

Defendants’ convictions in a joint trial for one count of first degree burglary and five counts of first degree kidnapping were affirmed because defendants and three other men entered a residence and tied up the five people that they found in the residence, hit some of the people that they tied up, took money from one of the people, and unplugged and moved a stereo system that they planned to take with them before police officers arrived upon the scene and arrested defendants. Furthermore, the trial court did not abuse its discretion in denying a motion to sever defendants’ trials because of defendants’ collective criminal behavior in the commission of the crimes. State v. Escoto, 162 N.C. App. 419, 590 S.E.2d 898, 2004 N.C. App. LEXIS 181 (2004).

Evidence that defendant kidnapped the victim to facilitate the armed robbery, which could not have occurred without the kidnapping, was sufficient to support the denial of defendant’s motion to dismiss the kidnapping charge. State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615, 2007 N.C. App. LEXIS 1162 (2007).

Where defendant restrained a victim and prevented the victim from leaving her home by holding onto her shirt and pulling her back from the door before defendant subsequently committed a robbery of the same victim with a dangerous weapon, a separate conviction of defendant for kidnapping, in violation of G.S. 14-39(a)(2), was proper and not violative of U.S. Const., Amend. XIV and N.C. Const., Art. I, § 19; the restraint and removal of the victim was a distinct criminal transaction that facilitated the accompanying felony offense. State v. Boyce, 361 N.C. 670 , 651 S.E.2d 879, 2007 N.C. LEXIS 1104 (2007).

V.Doing Bodily Harm or Terrorizing

The serious injury element of first-degree kidnapping is not limited to a fatal injury. State v. Wilson, 322 N.C. 117 , 367 S.E.2d 589, 1988 N.C. LEXIS 297 (1988).

Assault as Means and Not Purpose of Kidnapping. —

Where there was no evidence of intent to do bodily harm other than the harm that actually was inflicted when defendant struck victim with rifle, and such assault was the means rather than the purpose of the victim’s removal, it was error for the trial judge to instruct the jury that it could consider the infliction of serious bodily harm as a purpose for the confinement or removal of the victim. State v. Moore, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

Evidence Held Sufficient on Theory of Terrorizing Victim. —

Evidence that the defendant held the victim at gunpoint for almost three hours after inflicting a serious head injury upon her, during which time he threatened to shoot himself in her presence and in the presence of their three-year-old son, tried to get her to shoot him, and made threats against her life if she tried to take the children away from him, would support a finding that defendant intended by these actions and threats to put victim in a state of intense fright or apprehension so that she would agree to stay with him, and that he removed her to trailer and confined her there for that purpose. Thus the trial judge’s submission of the kidnapping charge to the jury on the theory that a purpose for the confinement or removal was to terrorize the victim was proper. State v. Moore, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

There was sufficient evidence that defendant’s purpose in confining the victims was to terrorize them because defendant shot a truck parked outside the house so that everyone could hear it, cut the telephone line to the house, shot through the windows multiple times to break into the house, yelled multiple times upon entering the house that he was going to kill one of the victims, corralled the victims into a single bedroom, and pointed his shotgun at them. State v. Pender, 243 N.C. App. 142, 776 S.E.2d 352, 2015 N.C. App. LEXIS 741 (2015).

Evidence was sufficient to support defendant’s kidnapping conviction because it showed that: (1) defendant and his accomplice knocked the victim to the floor, where he was kicked in the stomach repeatedly until defendant and his accomplice carried him into a bedroom, where his deceased body was later found; (2) a medical examiner testimony about his observations and examination of the victim showed the extent of bodily harm; (3) the victim was tied up with three electrical-type cords around his neck; (4) there were abrasions on the victim’s chest and abdomen; (5) the victim’s thoracic spine was fractured due to the severe arching of his back; and (6) the medical examiner testified that the cause of death was a combination of suffocation and strangulation. State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288, 2011 N.C. App. LEXIS 213 (2011).

Evidence Showed Intent to Terrorize or Cause Bodily Harm. —

Evidence supported defendants’ kidnapping convictions, as the evidence showed they intended to terrorize or cause bodily harm to a victim after they severely beat the victim by attempting to stuff the victim in a garbage can and then throwing the victim into a ditch. State v. Boozer, 210 N.C. App. 371, 707 S.E.2d 756, 2011 N.C. App. LEXIS 504 (2011).

Evidence was sufficient to support defendant’s kidnapping conviction because it showed that: (1) defendant beat and kicked the victim repeatedly while wrestling him to the floor; (2) defendant bound the victim’s hands and feet and placed a rag in his mouth; (3) both defendant and his accomplice then threatened to kill the victim; (4) defendant pulled the victim’s pants and underwear down, and the accomplice forced a bottle into his rectum; and (5) at trial the victim testified that he thought he was going to die. State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288, 2011 N.C. App. LEXIS 213 (2011).

Stabbing with Scissors. —

The court properly instructed that the jury could find defendant guilty of first degree kidnapping if, inter alia, the State proved beyond a reasonable doubt that defendant inflicted multiple stabbing and cutting wounds with scissors. State v. Johnson, 320 N.C. 746 , 360 S.E.2d 676, 1987 N.C. LEXIS 2402 (1987).

Kidnapping in Conjunction with Murder. —

Trial court did not err in submitting the underlying felony of kidnapping to the jury where defendant abused girlfriend and her child on automobile trip prior to killing the child. State v. Walls, 342 N.C. 1 , 463 S.E.2d 738, 1995 N.C. LEXIS 537 (1995), cert. denied, 517 U.S. 1197, 116 S. Ct. 1694, 134 L. Ed. 2d 794, 1996 U.S. LEXIS 3175 (1996).

Evidence Held Sufficient and Jury Unanimity Not Required. —

State presented sufficient evidence to survive G.S. 15-173 motion to dismiss kidnapping charges in capital murder case where a defendant and codefendant confined, restrained, or removed the victim for the purpose of doing serious bodily harm to or terrorizing the victim, resulting in serious injury to the victim including putting the victim in the victim’s car trunk and then burning the car; the jury was not required to unanimously find any one of the “either/or” kidnapping predicates, as long as there was evidence for them to find at least one of the predicates — “unanimity” was not required. State v. Bell, 359 N.C. 1 , 603 S.E.2d 93, 2004 N.C. LEXIS 1126 (2004), cert. denied, 544 U.S. 1052, 125 S. Ct. 2299, 161 L. Ed. 2d 1094, 2005 U.S. LEXIS 4243 (2005).

VI.First-Degree Kidnapping

Subsections (a) and (b) Must Be Read Together to Determine Elements of First-Degree Kidnapping. —

By amending subsection (b) of this section, the legislature manifested its intent that there would be two degrees of kidnapping. The language of subsection (a) creates and defines the offense of kidnapping. The language of subsection (b) addresses the degree of the crime. The two subsections must be read together to determine the elements of first-degree kidnapping. State v. Jerrett, 309 N.C. 239 , 307 S.E.2d 339, 1983 N.C. LEXIS 1391 (1983); State v. Corley, 310 N.C. 40 , 311 S.E.2d 540, 1984 N.C. LEXIS 1555 (1984).

The language of subsection (b) of this section states essential elements of the offense of kidnapping in the first degree and does not relate to matters in mitigation of punishment. To properly convict a defendant of kidnapping in the first degree, the State must allege and prove the applicable elements of both subsections (a) and (b) of this section. State v. Corley, 310 N.C. 40 , 311 S.E.2d 540, 1984 N.C. LEXIS 1555 (1984).

Illustrative Case. —

Trial court’s refusal to dismiss the charges of first-degree kidnapping or to lower the charges to second-degree kidnapping was proper where: (1) defendant ordered two victims into the woods at gunpoint, where he bound their hands and wrapped their faces with duct tape; (2) defendant repeatedly threatened to kill the men if they did not comply with his demands; and (3) defendant left the victims bound and gagged in the woods at nighttime. State v. Pratt, 152 N.C. App. 694, 568 S.E.2d 276, 2002 N.C. App. LEXIS 970 (2002), cert. denied, 357 N.C. 168 , 581 S.E.2d 442, 2003 N.C. LEXIS 565 (2003).

Failure to Release Victims in a Safe Place. —

First-degree kidnapping charges under G.S. 14-39(b) were proper because defendants in robbing the victims committed no affirmative or wilful act to release the victims in a safe place, but instead departed the victims’ home leaving the victims bound, blindfolded, and without access to a telephone. State v. Ly, 189 N.C. App. 422, 658 S.E.2d 300, 2008 N.C. App. LEXIS 650 (2008).

Trial court did not err by denying defendant’s motion to dismiss the charge of first-degree kidnapping as defendant did not affirmatively and voluntarily release the victim because the victim ran away when he saw he had an opportunity to do so when defendant turned his back on the victim; and defendant’s failure to pursue or attempt to re-establish control over the victim did not convert the victim’s escape into a release in a safe place. State v. Massey, 265 N.C. App. 301, 826 S.E.2d 839, 2019 N.C. App. LEXIS 380 (2019).

Failure to Leave Child in a Safe Place. —

Defendant’s motion to dismiss the first-degree kidnapping charge was properly denied; there was sufficient evidence to find that defendant did not leave the child in a safe place where defendant left the child in the middle of the night in an isolated, rural, wooded area with which the child was unfamiliar. State v. Sakobie, 157 N.C. App. 275, 579 S.E.2d 125, 2003 N.C. App. LEXIS 645 (2003).

What Must Be Alleged in Indictment for First-Degree Kidnapping. —

In order to properly indict a defendant for first-degree kidnapping, it is necessary for the State to allege both the essential elements of kidnapping as provided in subsection (a) of this section and at least one of the elements of first-degree kidnapping listed in subsection (b) of this section. State v. Bell, 311 N.C. 131 , 316 S.E.2d 611, 1984 N.C. LEXIS 1723 (1984).

In order for the State to properly indict a defendant for first-degree kidnapping, the State must allege the applicable elements of both subsection (a) and subsection (b). State v. Jerrett, 309 N.C. 239 , 307 S.E.2d 339, 1983 N.C. LEXIS 1391 (1983); State v. Jackson, 77 N.C. App. 491, 335 S.E.2d 903, 1985 N.C. App. LEXIS 4177 (1985); State v. Moore, 316 N.C. 328 , 341 S.E.2d 733, 1986 N.C. LEXIS 2071 (1986).

This section, as amended in 1979, expressed the General Assembly’s intent for an indictment for first-degree kidnapping to allege the applicable elements of both subsections (a) and (b). State v. McCullough, 79 N.C. App. 541, 340 S.E.2d 132, 1986 N.C. App. LEXIS 2089 , cert. denied, 316 N.C. 556 , 344 S.E.2d 13, 1986 N.C. LEXIS 2204 (1986).

Factual Basis Must Be Alleged. —

Unlike the short-form indictments authorized for homicide and rape, an indictment charging first-degree kidnapping must include information regarding the factual basis under which the State intends to proceed, and the State is limited to that factual basis at trial. State v. Brown, 312 N.C. 237 , 321 S.E.2d 856, 1984 N.C. LEXIS 1796 (1984).

Evidence of First-Degree Kidnapping Was Separate From that Used to Show Aggravation Factor. —

Same item of evidence was not used to prove both an element of the offense and an aggravating factor for purposes of sentencing defendant for first-degree kidnapping, resulting in serious injury where: (1) defendant pushed the victim off of the porch and shot him; (2) the victim fell to the ground but was unable to get up because he had been shot; (3) the victim was paralyzed as a result of the shooting; (4) the evidence that the victim had been shot was sufficient to prove the serious injury element of first-degree kidnapping; and (5) the evidence that the victim was paralyzed as a result of the shooting was the additional evidence that supported the finding of the aggravating factor. State v. Jones, 158 N.C. App. 498, 581 S.E.2d 103, 2003 N.C. App. LEXIS 1178 , cert. denied, 357 N.C. 465 , 586 S.E.2d 462, 2003 N.C. LEXIS 848 (2003).

Reduction of Offense Where Elements of Subsection (b) Not Set Out or Submitted. —

Where indictment sufficiently alleged the elements set forth in subsection (a) of this section, which are necessary to sustain a conviction for second-degree kidnapping, but did not allege that the victim was not released in a safe place, seriously injured or sexually assaulted, and the evidence was not only sufficient to convict for the lesser included offense, but the higher offense as well, the conviction for first-degree kidnapping would be vacated and the case remanded for an entry of a verdict for second-degree kidnapping, upon which defendant would be resentenced. State v. McCullough, 79 N.C. App. 541, 340 S.E.2d 132, 1986 N.C. App. LEXIS 2089 , cert. denied, 316 N.C. 556 , 344 S.E.2d 13, 1986 N.C. LEXIS 2204 (1986).

Indictment which did not allege in particular that victim was sexually assaulted, seriously injured, or not released in a safe place was insufficient to charge kidnapping in the first degree. State v. Moore, 315 N.C. 595 , 341 S.E.2d 35, 1986 N.C. LEXIS 1945 (1986) (holding however, that it was a valid second-degree kidnapping indictment) .

Where the trial court failed to submit the essential element of kidnapping in the first degree, but the court essentially submitted to the jury the offense of kidnapping in the second degree, the jury’s verdict of kidnapping in the first degree would be considered a verdict of guilty of kidnapping in the second degree. State v. Corley, 310 N.C. 40 , 311 S.E.2d 540, 1984 N.C. LEXIS 1555 (1984).

When Conviction on First-Degree Kidnapping as Well as Sexual Offense Is Not Permissible. —

Where, in finding defendant guilty of first-degree kidnapping, the jury must have relied on the crimes of rape or sexual offense of which he was also convicted to satisfy the sexual assault element, defendant was unconstitutionally subjected to double punishment under statutes proscribing the same conduct. State v. Freeland, 316 N.C. 13 , 340 S.E.2d 35, 1986 N.C. LEXIS 1882 (1986).

Defendants’ convictions for both first-degree kidnapping and rape violated prohibition against double jeopardy where rape of one victim was the only sexual assault which could have formed the “sexual assault” element of first-degree kidnapping convictions involving her and where defendants were indicted for and convicted of only one first-degree rape and first-degree sex offense against another victim. State v. Belton, 318 N.C. 141 , 347 S.E.2d 755, 1986 N.C. LEXIS 2579 (1986).

Defendant could not be convicted and sentenced for first-degree kidnapping as well as for first-degree rape and first-degree sexual offense, where he was convicted of first-degree kidnapping on the basis that he had sexually assaulted the victim during the kidnapping. State v. Mason, 315 N.C. 724 , 340 S.E.2d 430, 1986 N.C. LEXIS 1894 (1986) (remanding for a new sentencing hearing so the trial court could arrest judgment on the first degree kidnapping conviction and resentence for second degree kidnapping, or arrest judgment on one of the sexual assault convictions) .

The legislature did not intend a defendant to be convicted and punished for both first-degree kidnapping and the underlying sexual assault. State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

Where there was only one sexual assault, the second-degree rape of the victim, which could have formed the “sexual assault” element of the first-degree kidnapping conviction, and since the rape was used to raise the kidnapping to first-degree, the defendant was convicted more than once for the same offense in violation of the prohibition against double jeopardy. Therefore, the case would be remanded to the trial court for a new sentencing hearing, to either arrest judgment on the first-degree kidnapping conviction and resentence defendant for second-degree kidnapping, or arrest judgment on the second-degree rape conviction. State v. Walker, 84 N.C. App. 540, 353 S.E.2d 245, 1987 N.C. App. LEXIS 2533 (1987).

A defendant cannot be separately convicted for both first degree kidnapping and the underlying sexual assault under subsection (b) of this section without violating both the U.S. Constitution and N.C. Const. Art. 1, § 19. State v. White, 127 N.C. App. 565, 492 S.E.2d 48, 1997 N.C. App. LEXIS 1123 (1997).

Because defendant was convicted of a second-degree sexual offense, principles of double jeopardy precluded the use of the underlying sexual assault to support the first-degree kidnapping conviction. State v. Holloman, 231 N.C. App. 426, 751 S.E.2d 638, 2013 N.C. App. LEXIS 1314 (2013).

Sentencing defendant for both first degree kidnapping and an underlying sexual assault violated the protections against double jeopardy under the state and federal constitutions. In order for the jury to convict defendant on the charge of first degree kidnapping of a victim, who was not seriously injured or left in an unsafe place, it was necessary for the jury to find that defendant sexually assaulted her; therefore, one of the two sex offense charges had to be the basis for the count of first degree kidnapping. State v. Barksdale, 237 N.C. App. 464, 768 S.E.2d 126, 2014 N.C. App. LEXIS 1245 (2014).

Restraint Must be Separate and Apart From that Inherent in Committing Other Felonies. —

Under this section “restraint” connotes restraint separate and apart from that inherent in the commission of the other felony, and the key question is whether the victim is exposed to greater danger than that inherent in the other felony itself or subjected to the kind of danger this section was designed to prevent. State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).

Trial court did not err by denying defendant’s motion to dismiss the first-degree kidnapping charge where the commission of the underlying felony of rape did not require defendant to separately restrain or remove the victim from her living room couch to her bedroom and when defendant removed the victim from her living room to her bedroom he increased her helplessness and vulnerability. State v. Knight, 245 N.C. App. 532, 785 S.E.2d 324, 2016 N.C. App. LEXIS 198 (2016), modified, aff'd, 369 N.C. 640 , 799 S.E.2d 603, 2017 N.C. LEXIS 405 (2017).

The evidence showed restraint of the victim separate and apart from the restraint inherent in commission of armed robbery, where the robbery/murder victim was found lying bound and gagged on the floor, which the elements of armed robbery did not require. State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).

Defendant’s kidnapping conviction was vacated because there was insufficient evidence of confinement, restraint, or removal of the victim beyond that which was inherent to the additional crimes of armed robbery and rape. The victim’s testimony was that defendant grabbed the victim by her arm, pushed her back into her kitchen, pulled out a knife and demanded money, pushed the victim through a hall and into a den where he raped her, and left when the victim gave him her money. State v. Cartwright, 177 N.C. App. 531, 629 S.E.2d 318, 2006 N.C. App. LEXIS 1076 (2006).

In defendant’s prosecution for first-degree kidnapping under G.S. 14-39(a), defendant was not entitled to have the jury instructed on second-degree kidnapping because the evidence showed three robbers, including defendant, bound the victims’ hands with duct tape and left the victims bound in the victims’ hotel room after the robbers fled, so defendant did not release the victims in a safe place unharmed pursuant to G.S. 14-39(b), and sufficient evidence showed the robbers restrained the victims for the purpose of committing felony robbery with a dangerous weapon, so an instruction on first-degree kidnapping was supported but an instruction on second-degree kidnapping was not. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93, 2007 N.C. App. LEXIS 1050 (2007).

Defendant’s act of pinning the victim down on the bed by pushing defendant’s knee into the victim’s chest, defendant’s grabbing of the victim’s hair, and defendant’s preventing the victim from leaving the motel room were separate and independent acts from his assaulting her by means of strangulation, and thus were sufficient to support the charge of first-degree kidnapping. State v. Braxton, 183 N.C. App. 36, 643 S.E.2d 637, 2007 N.C. App. LEXIS 834 (2007).

Sentence Violated Double Jeopardy. —

Defendant was improperly convicted of first degree kidnapping and first degree rape where the first degree kidnapping conviction arose from the same sexual assault which was the basis of the first degree rape conviction. State v. Wiggins, 136 N.C. App. 735, 526 S.E.2d 207, 2000 N.C. App. LEXIS 149 (2000).

When Conviction of First-Degree Kidnapping as Well as Sexual Offense Is Permitted. —

Where verdict explicitly showed that what raised the kidnapping charge to first-degree was not the sexual assault, but that defendant did not release the victim in a safe place, defendant could be convicted of both first-degree kidnapping and sexual assault. State v. Chambers, 92 N.C. App. 230, 374 S.E.2d 158, 1988 N.C. App. LEXIS 1019 (1988).

The evidence showed that the rape-murder victim was unlawfully moved from one place to another without her consent for the purpose of committing first-degree rape, and thus, supported the first-degree kidnapping conviction, where a door in the victim’s apartment indicated forced entry, her car had not been moved and her clothing was inappropriate, and the defendant’s semen was found in her vagina. State v. Trull, 349 N.C. 428 , 509 S.E.2d 178, 1998 N.C. LEXIS 852 (1998), cert. denied, 528 U.S. 835, 120 S. Ct. 95, 145 L. Ed. 2d 80, 1999 U.S. LEXIS 5255 (1999).

State Has Burden to Show Factors Which Would Increase Punishment. —

The State has the burden of proof concerning those factors in this section which would subject the defendant to increased punishment. Where the State alleges in the bill of indictment the additional factor that will support the increased punishment, the State has accepted the burden of proof as to that factor. State v. Gunther, 38 N.C. App. 279, 248 S.E.2d 97, 1978 N.C. App. LEXIS 2168 (1978), aff'd in part and rev'd in part, 296 N.C. 578 , 251 S.E.2d 462, 1979 N.C. LEXIS 1202 (1979).

In order for the State to subject a defendant to a punishment of greater than 25 years (now punishment as a Class D felon) upon conviction of kidnapping, the State must allege and prove beyond a reasonable doubt that in the course of the kidnapping the defendant either sexually assaulted the victim, or seriously injured the victim, or released the victim in an unsafe place. State v. Gunther, 38 N.C. App. 279, 248 S.E.2d 97, 1978 N.C. App. LEXIS 2168 (1978), aff'd in part and rev'd in part, 296 N.C. 578 , 251 S.E.2d 462, 1979 N.C. LEXIS 1202 (1979).

Intent to Terrorize Shown. —

Denial of defendant’s motion to dismiss the kidnapping charge was proper as the State proved he confined the victim for the purpose of terrorizing her; defendant hid in the back of the victim’s car, forced her to remain inside and drive by applying enough force to her neck to create red marks and threatening her with a knife, and even after arriving at a gas station where the victim screamed for help, defendant hit her on top of the head. The victim’s screams and escape into the convenience store showed her fear during the incident. State v. Quinton Dante English, 272 N.C. App. 89, 845 S.E.2d 901, 2020 N.C. App. LEXIS 463 (2020).

Evidence Insufficient to Support Sentence. —

While defendant assumed a leadership position in committing the offenses of kidnapping and rape, there was insufficient evidence that defendant acted with more than one other person or that defendant was in a position of trust and confidence with the victim; thus, the trial court’s imposition of a sentence in excess of the presumptive range was erroneous and an abuse of discretion. State v. Rogers, 157 N.C. App. 127, 577 S.E.2d 666, 2003 N.C. App. LEXIS 368 (2003).

Resentencing Warranted. —

Because the trial court erred in sentencing defendant for both first-degree kidnapping and first-degree rape, as the same sexual assault served as the basis for both convictions, the matter was remanded for resentencing. On resentencing, the trial court could either: (1) arrest judgment on the first-degree kidnapping conviction and resentence defendant for second-degree kidnapping, or (2) arrest judgment on the first-degree rape conviction and resentence defendant on the first-degree kidnapping conviction. State v. Daniels, 189 N.C. App. 705, 659 S.E.2d 22, 2008 N.C. App. LEXIS 711 (2008), dismissed, 203 N.C. App. 350, 691 S.E.2d 78, 2010 N.C. App. LEXIS 558 (2010).

Evidence Sufficient to Withstand Motion to Dismiss. —

Motion to dismiss the kidnapping charges was properly denied where the state’s evidence was sufficient to allow the jury to consider whether the victims had been released to a safe place and to allow the jury to conclude that defendant committed the acts of confinement, removal, or restraint with respect to each victim, separate and independent of defendant’s commission of burglary and armed robbery. State v. Anderson, 181 N.C. App. 655, 640 S.E.2d 797, 2007 N.C. App. LEXIS 410 (2007).

Defendant was properly convicted of first-degree kidnapping under G.S. 14-39(b), apart from the armed robbery defendant also committed, because when defendant and defendant’s co-defendants bound the victims, the victims were placed in greater danger than the restraint and removal inherent in armed robbery, and there was no affirmative or wilful action on the part of defendants to “release” the victims. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93, 2007 N.C. App. LEXIS 1050 (2007).

Although the second defendant claimed that because the jury found him not guilty of robbery, there was not substantial evidence of the robbery, and therefore any kidnapping could not have occurred to facilitate a robbery, the appellate court found that the State was not required to prove the robbery in order to convict a person of kidnapping and substantial evidence of the restraint of the victims in furtherance of robbery was presented by the State, sufficient to reach the jury. Moreover, the first defendant’s failure to chase or do any additional harm to the second victim did not convert her escape into a release and the State presented substantial evidence, sufficient to present to a jury, on both counts of first-degree kidnapping against the second defendant. State v. Cole, 199 N.C. App. 151, 681 S.E.2d 423, 2009 N.C. App. LEXIS 1380 (2009), writ denied, 368 N.C. 605 , 780 S.E.2d 833, 2015 N.C. LEXIS 1269 (2015).

Defendant’s contention that his conviction for first-degree kidnapping should be vacated was rejected where the evidence indicated that the victim was alive when defendant carried him into the bedroom, and to suggest that leaving a person bound by his neck, hands, and feet so tightly that he suffered a fracture to his spine and ultimately suffocated amounted to being left in a position of safety was without merit. State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288, 2011 N.C. App. LEXIS 213 (2011).

Trial court did not err by denying the defendant’s motion to dismiss the first-degree kidnapping charge because the evidence was sufficient to submit the charge to the jury as it showed that there were two separate, distinct restraints sufficient to support convictions for both kidnapping and assault by strangulation, there was evidence of defendant’s clear, direct intent to terrorize the victim, and leaving the victim in the middle of a gravel driveway, unconscious and injured, was not leaving the victim in a place of safety or protection. State v. James, 248 N.C. App. 751, 789 S.E.2d 543, 2016 N.C. App. LEXIS 803 (2016).

Evidence Insufficient to Withstand Motion to Dismiss. —

In a case where defendant was convicted of second-degree sexual offense, first-degree kidnapping, and two counts of second-degree rape, the trial court erred in denying defendant’s motions to dismiss the charge of kidnapping as the evidence of restraint was insufficient to support the charge of kidnapping because defendant’s restraint of the victim was inherent in the underlying felonies of sexual assault and rape; and, although the amount of force used by defendant in restraining the victim might have been more than necessary to accomplish the rapes and sexual assault, the restraint was inherent in the actual commission of those acts. State v. Parker, 237 N.C. App. 546, 768 S.E.2d 1, 2014 N.C. App. LEXIS 1207 (2014).

Trial court erred by denying defendant’s motion to dismiss one of the first-degree kidnapping charges under N.C. Gen. Stat. § 14-39 because the State alleged that defendant committed the kidnapping when he moved the victim from the back bedroom to another bedroom and put her in a closet, which occurred after defendant raped the victim. State v. Elder, 2021-NCCOA-350, 278 N.C. App. 493, 863 S.E.2d 256, 2021- NCCOA-350, 2021 N.C. App. LEXIS 371 (2021).

Evidence Sufficient to Support Conviction. —

There was strong evidence that defendant committed two counts of first degree kidnapping where according to defendant, another individual told two men to get out of the car, they were taken into the woods out of sight of the road and that an individual told them to take off their clothes and they were found only partially clothed and at that time another individual shot both men to death. State v. Villatoro, 193 N.C. App. 65, 666 S.E.2d 838, 2008 N.C. App. LEXIS 1737 (2008).

Trial court did not commit error by denying defendant’s motion to dismiss the charge of first-degree kidnapping because there was sufficient evidence of confinement to support the charge distinct from evidence of assault; the victim was specifically prevented from leaving her apartment and denied the opportunity to reach safety, subjecting her to further abuse. State v. Guin, 2022-NCCOA-133, 870 S.E.2d 285, 2022- NCCOA-133, 2022 N.C. App. LEXIS 146 (N.C. Ct. App. 2022).

No Double Jeopardy in Case Involving Convictions of Kidnapping and Assault with a Deadly Weapon Inflicting Serious Injury. —

Where defendant dragged his wife by the hair into the house and then beat her with his gun, defendant’s convictions of first-degree kidnapping in violation of G.S. 14-39(a) and assault with a deadly weapon inflicting serious injury in violation of G.S. 14-32(b) did not violate double jeopardy under N.C. Const. Art. I, § 19; the restraint and removal of the wife, which was the act of dragging her into the house, were separate from the commission of the assault, which was the act of beating the wife with the gun once the kidnapping had been completed. State v. Romero, 164 N.C. App. 169, 595 S.E.2d 208, 2004 N.C. App. LEXIS 729 (2004).

VII.Second-Degree Kidnapping
A.In General

As Crime of Violence for Purposes of U.S. Sentencing Guidelines. —

District court did not err when it sentenced defendant to imprisonment for 20 years following his guilty plea to conspiracy to manufacture and distribute marijuana, which was the same sentence the court imposed after he was convicted of knowingly manufacturing marijuana in violation of 21 U.S.C.S. § 841, before that conviction was reversed; the trial judge listened to defendant’s evidence about his rehabilitation, and did not err when he found that defendant’s conviction for second-degree kidnapping in violation of G.S. 14-39 was a crime of violence under USSG § 4B1.2 that required an enhanced sentence. United States v. Harris, 890 F.3d 480, 2018 U.S. App. LEXIS 13112 (4th Cir. 2018).

Release in Safe Place by Defendant Must Be Voluntary. —

While it is true that subsection (b) of this section does not expressly state that defendant must voluntarily release the victim in a safe place, a requirement of “voluntariness” is inherent in the statute. The language “in a safe place by the defendant” implies a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety. State v. Jerrett, 309 N.C. 239 , 307 S.E.2d 339, 1983 N.C. LEXIS 1391 (1983).

Release Held Not “Voluntary” Nor in a “Safe Place.” —

Releasing a kidnap victim when the kidnapper is aware he is cornered and outnumbered by law enforcement officials is not “voluntary” and sending a victim out into the focal point of the officers’ weapons is not a “safe place.” State v. Heatwole, 333 N.C. 156 , 423 S.E.2d 735, 1992 N.C. LEXIS 672 (1992).

The crime of second-degree kidnapping was complete, irrespective of the fact that defendant went on to commit the crime of first degree rape, where, defendant forced the victim into the store restroom, tied her hands with cable, and thus procured her submission and restrained her within the meaning of this section with the purpose of committing rape. State v. Hill, 116 N.C. App. 573, 449 S.E.2d 573, 1994 N.C. App. LEXIS 1157 , cert. denied, 338 N.C. 670 , 453 S.E.2d 183, 1994 N.C. LEXIS 807 (1994).

It was plain error to instruct the jury on kidnapping under G.S. 14-39(b) since: (1) if any burglary occurred, it was completed before the restraint, (2) the burglary was complete as soon as defendant kicked down the front door and entered the victim’s residence with the intent to murder, (3) the kidnapping was not complete until defendant and co-defendants unlawfully restrained the victims by ordering them at gunpoint to lie on the ground, and (4) the felony that was the only alleged purpose for the kidnapping occurred before, not after, the kidnapping; however, evidence showing that the victims were held at gunpoint in the kitchen was sufficient to find that the victims were both “restrained” and “confined” for purposes of kidnapping. State v. Jordan, 186 N.C. App. 576, 651 S.E.2d 917, 2007 N.C. App. LEXIS 2270 (2007).

The evidence was sufficient to prove specific intent as required by this section where the defendant, while brandishing a gun, confined his wife in her apartment against her will for close to twenty hours and intermittently threatened to kill himself. State v. Baldwin, 141 N.C. App. 596, 540 S.E.2d 815, 2000 N.C. App. LEXIS 1401 (2000).

The evidence was sufficient to show that the defendant acted with the purpose of terrorizing the victim where he called her twice, entered her home uninvited, punched her repeatedly and pointed a gun in her face, followed her when she fled to a neighbor’s house, made the neighbor lie on the floor while he pushed a table against her, choked her, and dragged her outside. State v. Guice, 141 N.C. App. 177, 541 S.E.2d 474, 2000 N.C. App. LEXIS 1402 (2000), writ denied, 353 N.C. 731 , 551 S.E.2d 112, 2001 N.C. LEXIS 762 (2001).

Trial court did not err in denying defendant’s motion to dismiss the charge of second-degree kidnapping as the evidence that defendant grabbed the victim on the street at night, attempted to drag the victim to some bushes, wrestled with and sexually molested the victim, fled from the scene when the police were called by a woman who heard the victim screaming, and that the victim was emotionally upset and distraught when the police arrived and when she saw defendant at a showup identification about 30 minutes later was sufficient for the jury to conclude that defendant acted with the purpose of terrorizing the victim. State v. Harrison, 169 N.C. App. 257, 610 S.E.2d 407, 2005 N.C. App. LEXIS 608 (2005), aff'd, 360 N.C. 394 , 627 S.E.2d 461, 2006 N.C. LEXIS 27 (2006).

Sufficient Evidence of Restraint. —

All of the elements for second-degree kidnapping were met. State v. Allen, 112 N.C. App. 419, 435 S.E.2d 802, 1993 N.C. App. LEXIS 1133 (1993).

Where the evidence showed that, after shooting victim, a pawnshop clerk, defendant pointed his gun at victim’s girl-friend and ordered her to get down on the floor and crawl towards back room, conviction of second-degree kidnapping for the purpose of terrorizing would be upheld. State v. Davis, 340 N.C. 1 , 455 S.E.2d 627, 1995 N.C. LEXIS 152 , cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83, 1995 U.S. LEXIS 5843 (1995).

Where evidence was sufficient to establish that the blows used for restraint were separate and apart from the blows causing death, trial court did not err in denying motion to dismiss second-degree kidnapping charge. State v. Stroud, 345 N.C. 106 , 478 S.E.2d 476, 1996 N.C. LEXIS 653 (1996), cert. denied, 522 U.S. 826, 118 S. Ct. 86, 139 L. Ed. 2d 43, 1997 U.S. LEXIS 4830 (1997), cert. dismissed, 368 N.C. 424 , 779 S.E.2d 145, 2015 N.C. LEXIS 1200 (2015).

There was sufficient evidence of victim’s “restraint” during an armed robbery to warrant a second degree kidnapping conviction, where the victim was physically forced into the living room from a bedroom to prevent him from hindering the defendant and his accomplice from robbing the other victims. State v. Allred, 131 N.C. App. 11, 505 S.E.2d 153, 1998 N.C. App. LEXIS 1235 (1998).

Trial court did not err in submitting second-degree kidnapping charge to the jury where there was sufficient evidence of an independent act; the evidence permitted a reasonable inference that defendant fraudulently coerced victim into remaining with him in car so that he could drive to a secluded place (the cemetery), get high on marijuana, and then sexually assault her. State v. Harris, 140 N.C. App. 208, 535 S.E.2d 614, 2000 N.C. App. LEXIS 1116 (2000).

Trial court did not err in denying defendant’s motion to dismiss his second-degree kidnapping charge and there was sufficient evidence that defendant restrained the victim for the purpose of facilitating a felony where there was sufficient evidence from which the jury could find that defendant intended to rape the victim; further, the evidence of restraint forming the basis of the kidnapping charge was independent of the restraint inherent in the attempted rape charge as defendant pushed the victim down the hallway of her residence, away from her sister’s bedroom, into her bedroom and pinned her on her bed, which constituted evidence that defendant took the victim to a more secluded area to prevent others from witnessing or hindering the rape. State v. Mangum, 158 N.C. App. 187, 580 S.E.2d 750, 2003 N.C. App. LEXIS 1036 (2003).

After threatening a victim with a knife and blinding her by taping her eyes shut, defendant penetrated the victim vaginally from the front, then withdrawing, turning her on her side and re-penetrating her vaginally; here, there was sufficient evidence to show that defendant committed two separate acts of first degree rape such that defendant’s motion to dismiss the second count of first degree rape and defendant’s motion to dismiss the second degree kidnapping charge were properly denied. State v. Key, 180 N.C. App. 286, 636 S.E.2d 816, 2006 N.C. App. LEXIS 2291 (2006).

Evidence that defendant restrained three young children under the age of 16 in an apartment bedroom while defendant and an accomplice searched for drugs and money during a robbery sufficiently supported defendant’s conviction for second-degree kidnapping in violation of G.S. 14-39 . As a result, and because the jury was properly instructed regarding the charge, the trial court did not have grounds to dismiss the charge. State v. Sapp, 190 N.C. App. 698, 661 S.E.2d 304, 2008 N.C. App. LEXIS 1098 (2008).

Court of appeals erred in vacating defendant’s conviction for second-degree kidnapping because the trial court did not err in denying defendant’s motions to dismiss the charge since the State presented sufficient evidence of restraint that was separate and apart from that inherent in the commission of the sex offense; defendant took additional action, which increased the victim’s helplessness and vulnerability beyond the initial blows to his head that enabled defendant to commit the sex offense. State v. China, 370 N.C. 627 , 811 S.E.2d 145, 2018 N.C. LEXIS 224 (2018).

Evidence Sufficient to Support Conviction. —

Trial court properly denied defendant’s motion to dismiss and properly convicted defendant of second-degree kidnapping; testimony from the victim and other witnesses showed that defendant grabbed the victim while he was seated inside his car, threw the victim to the ground, knocked the victim onto the hood of his car, and that the victim could not flee from defendant because defendant continued to hold the victim while assaulting him, therefore, there was sufficient evidence that defendant restrained and terrorized the victim as required by the kidnapping statute. State v. Washington, 157 N.C. App. 535, 579 S.E.2d 463, 2003 N.C. App. LEXIS 728 (2003).

Evidence that defendant restrained the victim when defendant stood by the door of the victim’s apartment after the victim asked defendant to leave, thereby confining the victim inside, was sufficient to support a second-degree kidnapping charge and withstand defendant’s motion to dismiss. State v. Johnson, 183 N.C. App. 576, 646 S.E.2d 123, 2007 N.C. App. LEXIS 1169 (2007).

State presented sufficient evidence of confinement to support the second degree kidnapping charge with respect to the son because the boy was confined to his bedroom because defendant ordered it while, as the boy knew, holding the boy’s mother at gunpoint. State v. Bell, 221 N.C. App. 535, 728 S.E.2d 439, 2012 N.C. App. LEXIS 868 (2012).

Evidence was not sufficient to show defendant attempted to move a victim apart from the movement needed to commit armed robbery because, by ordering the victim into an awaiting automobile after completing the armed robbery, defendant tried to place the victim in danger greater than that inherent in the armed robbery, so convictions for attempted second-degree kidnapping and armed robbery were not inconsistent with double jeopardy prohibitions, and defendant tried to move the victim to facilitate defendant’s flight. State v. Stokes, 367 N.C. 474 , 756 S.E.2d 32, 2014 N.C. LEXIS 290 (2014).

Trial court correctly denied defendant’s motion to dismiss the second-degree kidnapping charge because the jury properly concluded beyond a reasonable doubt that defendant’s restraint was separate and distinct from the armed robbery, and that he was exposed to greater danger in addition to what occurred during the robbery from his person with a dangerous weapon. State v. Stokley, 276 N.C. App. 249, 855 S.E.2d 834, 2021- NCCOA-71, 2021 N.C. App. LEXIS 73 (2021).

Insufficient Evidence of Restraint. —

There was insufficient “restraint” of the victims during a robbery to warrant convictions for second degree kidnapping, where the victims were held at gunpoint during the robbery, but were not moved or injured in any way. State v. Allred, 131 N.C. App. 11, 505 S.E.2d 153, 1998 N.C. App. LEXIS 1235 (1998).

Evidence Insufficient to Sustain Removal Requirement. —

Conviction for second-degree kidnapping was vacated in case where removal to victim’s bedroom was an inherent part of armed robbery. State v. Ross, 133 N.C. App. 310, 515 S.E.2d 252, 1999 N.C. App. LEXIS 397 (1999).

Trial court erred in denying defendant’s motion to dismiss a second- degree kidnapping charge under G.S. 14-39(a)(2) where defendant’s act of pushing a convenience store clerk toward the register during a robbery did not expose her to a greater danger than inherent in an armed robbery, and thus was insufficient to support the charge. State v. Stephens, 175 N.C. App. 328, 623 S.E.2d 610, 2006 N.C. App. LEXIS 50 (2006).

Evidence was not sufficient to sustain defendant’s convictions for 10 counts of second degree kidnapping because the State’s evidence of kidnapping established only the elements of the crime of robbery with a dangerous weapon with the lone added component of the victims’ being required to lie down on the floor and that lone act was a mere technical asportation. State v. Taylor, 191 N.C. App. 561, 664 S.E.2d 375, 2008 N.C. App. LEXIS 1476 (2008).

Where the evidence showed that after a child had finished urinating, defendant entered the restroom stall he occupied, closed the door, and molested the child, as defendant effectively restricted the child’s ability to leave the stall and removed him from the view of others in the restroom who might hinder the commission of the offense, the evidence was sufficient to allow a jury to find that defendant confined the child within the stall for the purpose of facilitating defendant’s taking indecent liberties with him, in violation of G.S. 14-39 . State v. Shue, 163 N.C. App. 58, 592 S.E.2d 233, 2004 N.C. App. LEXIS 264 , cert. denied, 358 N.C. 380 , 597 S.E.2d 773, 2004 N.C. LEXIS 362 (2004).

No double jeopardy implications arose from convictions for second degree kidnapping, first degree burglary, and felonious larceny because the trial court arrested judgment on the common-law robbery charge, which eliminated any possibility of the defendant being punished twice for the restraint involved in the common-law robbery and second degree kidnapping. Moreover, the only force inherent in burglary or in larceny pursuant to a breaking and entering was forcible entry into the property, which was achieved when the intruders forced the door open and not by pushing the victim to the floor of the victim’s apartment and holding the victim there. State v. Cousar, 190 N.C. App. 750, 660 S.E.2d 902, 2008 N.C. App. LEXIS 1076 (2008).

Evidence Insufficient to Show Removal and Restraint Were Not Inherent Part of Robbery. —

Defendant’s two convictions for second degree kidnapping were reversed, because the removal and restraint of the victims was an inherent part of the robbery and did not expose the victims to a greater danger than the robbery itself; while the victims were ordered to bathroom, neither were bound or physically harmed and they were only in bathroom for 10 to 15 minutes while defendant and the others completed the robbery. State v. Payton, 198 N.C. App. 320, 679 S.E.2d 502, 2009 N.C. App. LEXIS 1176 (2009).

Reversal Due to Failure to Prove Underlying Felony. —

Defendant was entitled to reversal of his kidnapping conviction, because the State failed to prove the particularly felonious intent alleged where the second-degree rape conviction was reversed. State v. Huss, 223 N.C. App. 480, 734 S.E.2d 612, 2012 N.C. App. LEXIS 1300 (2012), aff'd, 367 N.C. 162 , 749 S.E.2d 279, 2013 N.C. LEXIS 1160 (2013).

Sentence For Second-Degree Kidnapping Within Presumptive Range. —

Because defendant’s sentence for second-degree kidnapping was within the presumptive range, he had no direct appeal as a matter of right under G.S. 15A-1444(a1) , and it was defendant’s minimum sentence of imprisonment that determined whether G.S. 15A-1444(a1) was applicable; defendant’s minimum sentence of 46 months imprisonment for second-degree kidnapping was within the presumptive range, even though it was at the top of the presumptive range, and his maximum term overlapped into the aggravated range. State v. Daniels, 203 N.C. App. 350, 691 S.E.2d 78, 2010 N.C. App. LEXIS 558 (2010).

B.Mitigating Factors in Subsection (b)

Editor’s Note. —

Most of the following cases concerning sentencing under subsection (b) were decided prior to July 1, 1981, the effective date of the 1979 amendment to this section, which rewrote subsection (b) so as to create two degrees of the offense of kidnapping, and which substituted felony classifications for each degree of kidnapping for former provisions concerning minimum and maximum sentences.

Purpose of Subsection (b). —

Subsection (b) of this section seeks to reduce the possibility of harm to a victim who is in an already dangerous situation. In other words, it is intended to offer a kidnapper the inducement of a lesser sentence if he refrains from injuring or permitting injury to his victim. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

It is reasonable to assume that the General Assembly had a purpose similar to that of the Model Penal Code, which was to maximize the kidnapper’s incentive to return the victim alive, in providing reduced punishment under subsection (b) of this section when the victim has been released in a safe place and has not been sexually assaulted or seriously injured. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

Nature of Mitigating Factors. —

The mitigating factors in subsection (b) of this section are not the antithesis of any essential element of the crime of kidnapping. Proof of these factors does not negate any element of the crime of kidnapping which the State must prove. The mitigating factors are, in reality, pleas in avoidance or mitigation of punishment and not pleas in negation. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

No Jury Determination Required. —

Since the mitigating factors to be found under subsection (b) of this section relate solely to the severity of the sentence and not to any element of the offense itself, a defendant is not entitled to a jury determination under either the federal or State Constitution. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

Determination Made by Judge. —

The judge may make the determination with regard to the existence of the factors in subsection (b) of this section relating to sentencing from evidence adduced at the trial of the kidnapping case itself or at the sentencing hearing provided for in G.S. 15A-1334 following the trial, or at both proceedings. If at either or both proceedings evidence of the existence of the mitigating factors has been presented, the judge must consider this and all other evidence bearing on the question. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978); State v. Bright, 301 N.C. 243 , 271 S.E.2d 368, 1980 N.C. LEXIS 1165 (1980).

Since the mitigating factors in subsection (b) of this section are not elements of any substantive criminal offense, but bear solely on the question of punishment, having the judge determine these matters is not violative of N.C. Const., Art. I, § 24. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

Normally a jury need only determine whether a defendant has committed the substantive offense of kidnapping as defined in subsection (a) of this section. The factors set forth in subsection (b) of this section relate only to sentencing; therefore, their existence or nonexistence should properly be determined by the trial judge. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978); State v. Brady, 299 N.C. 547 , 264 S.E.2d 66, 1980 N.C. LEXIS 986 (1980); State v. Bright, 301 N.C. 243 , 271 S.E.2d 368, 1980 N.C. LEXIS 1165 (1980); State v. Boone, 302 N.C. 561 , 276 S.E.2d 354, 1981 N.C. LEXIS 1062 (1981).

No Findings Required. —

If no evidence either at trial or at the sentencing hearing is adduced tending to show the existence of the mitigating factors in subsection (b) of this section, then the judge, without making findings, may proceed to impose a sentence. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978); State v. Bright, 301 N.C. 243 , 271 S.E.2d 368, 1980 N.C. LEXIS 1165 (1980).

Same — Where Separate Criminal Charges Are Tried Jointly with Kidnapping. —

When the question of the existence of the mitigating factors in subsection (b) of this section has, in effect, been submitted to the jury in the form of separate criminal charges tried jointly with the kidnapping case, and the jury finds defendant guilty, there is no need for the judge to make separate findings. The nonexistence of mitigating factors will already have been determined beyond a reasonable doubt. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978); State v. Bright, 301 N.C. 243 , 271 S.E.2d 368, 1980 N.C. LEXIS 1165 (1980).

The trial court properly sentenced defendant to life imprisonment for kidnapping without making findings of fact concerning the mitigating circumstances as to whether the victim was released by the defendant in a safe place and had not been sexually assaulted or seriously injured, where charges of kidnapping and assault with intent to commit rape were submitted to the jury, the jury found defendant guilty of both charges, and the nonexistence of the mitigating factors of subsection (b) of this section was thus already established beyond a reasonable doubt. State v. Bright, 301 N.C. 243 , 271 S.E.2d 368, 1980 N.C. LEXIS 1165 (1980).

The State may stipulate to the presence of all the mitigating factors in subsection (b) of this section and thereby avoid determination of the question. State v. Williams, 295 N.C. 655 , 249 S.E.2d 709, 1978 N.C. LEXIS 1125 (1978).

Evidence permitted jury reasonably to infer that victim was not “released by the defendant in a safe place” within the meaning and intent of that phrase as used in subsection (b) of this section when the defendant at approximately 5:00 on a mid-January morning released the victim at an intersection located nine-tenths of a mile from a shopping mall. State v. Sutcliff, 322 N.C. 85 , 366 S.E.2d 476, 1988 N.C. LEXIS 136 (1988).

VIII.Charge and Indictment, Generally

Prosecutorial Discretion in Choice of Crime. —

When kidnapping, by definition, overruns other crimes for which the prescribed punishment is less severe, a prosecutor has the naked and arbitrary power to choose the crime for which he will prosecute. State v. Dix, 282 N.C. 490 , 193 S.E.2d 897, 1973 N.C. LEXIS 1102 (1973).

Allowing Amendment of Indictment Erroneous. —

Allowing the State to change the alleged purposes of the “confinement, restraint or removal” in an indictment charging defendant with kidnapping was erroneous because the amendment was a substantial alteration that unfairly prejudiced defendant; among other things, the inclusion of the allegation that the victim “was seriously injured” was intended to elevate crime to first degree. State v. Morris, 185 N.C. App. 481, 648 S.E.2d 909, 2007 N.C. App. LEXIS 1802 (2007).

Trial court erred in allowing the State to amend the charge of second degree kidnapping by changing the underlying crime from assault inflicting serious injury to assault inflicting serious bodily injury because it raised the underlying crime from a misdemeanor to a felony. State v. Hill, 262 N.C. App. 113, 821 S.E.2d 631, 2018 N.C. App. LEXIS 1035 (2018).

State Held Not Required to Elect Between Charges. —

Where a victim was forced from his residence at gunpoint and transported by a car for a distance of eight miles, where he was robbed, there was sufficient asportation and evidence to support both kidnapping and armed robbery, and the State was not required to elect between charges. State v. Sommerset, 21 N.C. App. 272, 204 S.E.2d 206, 1974 N.C. App. LEXIS 1777 , cert. denied, 285 N.C. 594 , 205 S.E.2d 725, 1974 N.C. LEXIS 1048 (1974).

Consolidation of Charges. —

Where kidnapping and assault charges arose out of the same transaction, and elements of the assault charge were essentials of the kidnapping charge, the consolidation of the assault and kidnapping charges was permissible under G.S. 15-152 (now G.S. 15A-926(a)). State v. Barbour, 278 N.C. 449 , 180 S.E.2d 115, 1971 N.C. LEXIS 989 (1971), cert. denied, 404 U.S. 1023, 92 S. Ct. 699, 30 L. Ed. 2d 673, 1972 U.S. LEXIS 4121 (1972).

Charge May Be Confined to “Kidnapping by Unlawful Restraint”. —

Since “confinement” and “restraint” are practically synonymous, and there must be restraint if there is confinement, and since unlawful removal from one place to another must involve unlawful restraint, in any kidnapping case the State may confine the charge against the defendant to kidnapping by unlawful restraint. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

Indictment Using Common-Law Definition No Longer Sufficient. —

An indictment which would have been sufficient under this section prior to the 1975 amendment because the term “kidnap” was given the common-law definition did not allege the elements required under this section, which statutorily defines kidnapping and supersedes the common-law definition of kidnapping. The indictment could not be considered sufficient even to charge common-law kidnapping as a lesser included offense. State v. Holmon, 36 N.C. App. 569, 244 S.E.2d 491, 1978 N.C. App. LEXIS 2549 (1978).

In a kidnapping case, the indictment must allege the specific purposes on which the State intends to rely; the State is furthermore restricted to proving those purposes alleged in the indictment. State v. McClain, 86 N.C. App. 219, 356 S.E.2d 826, 1987 N.C. App. LEXIS 2690 (1987).

As to indictments held sufficient prior to the 1975 amendment, see State v. Penley, 277 N.C. 704 , 178 S.E.2d 490, 1971 N.C. LEXIS 1067 (1971); State v. Norwood, 289 N.C. 424 , 222 S.E.2d 253, 1976 N.C. LEXIS 1295 (1976).

State Must Allege Transportation. —

The legislature’s proclamation in G.S. 14-43.3 that felonious restraint is a lesser included offense of kidnapping does not relieve the State of its duty to allege in the kidnapping indictment that the defendant transported the victim by motor vehicle or other conveyance. State v. Wilson, 128 N.C. App. 688, 497 S.E.2d 416, 1998 N.C. App. LEXIS 164 (1998).

Where indictment charged that defendant committed kidnapping only by unlawfully removing the victim “from one place to another,” trial judge’s instruction that defendant could be convicted if he simply unlawfully restrained the victim was error. State v. Tucker, 317 N.C. 532 , 346 S.E.2d 417, 1986 N.C. LEXIS 2405 (1986).

Where indictment for kidnapping specified armed robbery as the underlying felony, defendant could be convicted of kidnapping based on the underlying felony of common-law robbery. State v. Parker, 81 N.C. App. 443, 344 S.E.2d 330, 1986 N.C. App. LEXIS 2297 (1986).

Where the elements of restraint and removal of victims were not an inherent part of robbery conviction, defendant’s motion to dismiss first and second degree kidnapping charges was properly denied. State v. Warren, 122 N.C. App. 738, 471 S.E.2d 667, 1996 N.C. App. LEXIS 551 (1996).

Where trial judge submitted case to the jury on alternative theories, one of which was determined to be erroneous and the other properly submitted, and the appellate court could not discern from the record the theory upon which the jury relied, the court would remand for a new trial on the charge of second-degree kidnapping. State v. Getward, 89 N.C. App. 26, 365 S.E.2d 209, 1988 N.C. App. LEXIS 241 (1988).

Confining, Restraining And/Or Removing. —

The trial court’s use of the disjunctive “or” in the jury instruction on kidnapping was not error although the indictment used the conjunctive “and” to describe the State’s allegations because substantial evidence supported any of the three methods set out in the indictment: confining, restraining and/or removing where the evidence showed that the defendant bound the victim’s hands behind her back with wire ties, dragged her approximately 15 feet and forced her into a storage closet where he left her while he returned to the front office to empty the cash register, then returned and bound the her ankles with wire ties before raping her twice. State v. Lancaster, 137 N.C. App. 37, 527 S.E.2d 61, 2000 N.C. App. LEXIS 266 (2000).

Instructing Jury on a Theory Unsupported by the Indictment. —

Where kidnapping indictments alleged that defendant’s purpose was to facilitate “the commission of a felony, to wit: escape,” and his trial was on that theory, but the court charged the jury that they could find defendant guilty of second-degree kidnapping if they found that his purpose was to use the person named “as a shield,” this error by the court permitted the jury to convict defendant upon a theory not supported by the bill of indictment, and though defendant failed to object to it the error was nevertheless reviewable under the “plain error” rule. State v. Ellis, 90 N.C. App. 655, 369 S.E.2d 642, 1988 N.C. App. LEXIS 582 (1988).

Where the trial court instructed the jury on serious bodily injury under subsection (b) of this section, while the indictment alleged as the basis for first-degree kidnapping that the victim was not released in a safe place, this variance between the instruction and the indictment constituted plain error entitling defendant to a new trial. State v. Bailey, 97 N.C. App. 472, 389 S.E.2d 131, 1990 N.C. App. LEXIS 163 (1990).

Where the indictment charged the defendant with kidnapping for “removing” the victims, but the trial court informed the jury that the defendant committed kidnapping if he “confined, restrained or removed” the victims, the appellate court would vacate defendant’s first degree kidnapping convictions and remand for a new trial. State v. Dominie, 134 N.C. App. 445, 518 S.E.2d 32, 1999 N.C. App. LEXIS 800 (1999).

Instructing the jury that it could convict defendant if it found he kidnapped victim for the purpose of committing the felonies of second-degree sex offense or crime against nature, theories different from that found in the indictment, which alleged that he kidnapped her for the purpose of committing felony rape, was not plain error where the jury convicted him of committing or attempting to commit all three. State v. Harris, 140 N.C. App. 208, 535 S.E.2d 614, 2000 N.C. App. LEXIS 1116 (2000).

Indictment Alleging Only Second-Degree Kidnapping. —

Indictment for first-degree kidnapping which failed to allege that victim was not released in a safe place or was seriously injured or sexually assaulted alleged only the crime of second-degree kidnapping, and if defendant was not entitled to a new trial because the court erred in charging the jury, his conviction would be treated as being for that lesser offense. State v. Ellis, 90 N.C. App. 655, 369 S.E.2d 642, 1988 N.C. App. LEXIS 582 (1988).

Defendant was entitled to reversal of convictions for first degree kidnapping and entry of convictions for second degree kidnapping because the indictment only alleged that defendant did something “for the purpose of doing other serious bodily harm” and failed to allege actual serious injury. State v. Rodriguez, 192 N.C. App. 178, 664 S.E.2d 654, 2008 N.C. App. LEXIS 1542 (2008).

No Fatal Variance In Indictment. —

Because a victim’s age did not involve an essential element of the crime of kidnapping, any alleged variance in the indictment regarding the victim’s age could not have been fatal. State v. Pender, 243 N.C. App. 142, 776 S.E.2d 352, 2015 N.C. App. LEXIS 741 (2015).

Indictment Sufficient. —

Defendant’s kidnapping indictments were sufficient for the victims who were allegedly under 16 at the time of the incident, even though they alleged that the victim and not the parent did not consent, because age was not an essential element of the crime of kidnapping, and whether the State had to prove a lack of consent from the victim or from the parent or custodian was contingent upon the victim’s age. State v. Pender, 243 N.C. App. 142, 776 S.E.2d 352, 2015 N.C. App. LEXIS 741 (2015).

Evidence Was Sufficient to Deny Motion to Dismiss. —

Trial court properly denied defendant’s motion to dismiss criminal charges against him; evidence that defendant forced the victim at knifepoint from the front of her home to a bedroom and then sexually assaulted her constituted sufficient evidence to satisfy the charge of kidnapping under G.S. 14-39(a), as well as the charge of rape under G.S. 14-27.2 and burglary under G.S. 14-51 . State v. Blizzard, 169 N.C. App. 285, 610 S.E.2d 245, 2005 N.C. App. LEXIS 680 (2005).

Evidence was sufficient to sustain the kidnapping convictions where the removal of two of the victims from downstairs to upstairs was not integral or inherent in the armed robberies of all four victims. The robberies of the first two victims took place entirely downstairs when the robbers demanded their cell phones, nothing was taken from the victims after they were moved upstairs, there was no evidence that it was necessary to move the first two victims upstairs to complete the robbery of the other two victims, and the removal of the first two victims subjected them to greater danger, as the other robbers assaulted the victims with handguns after they were escorted upstairs. State v. Curtis, 246 N.C. App. 107, 782 S.E.2d 522, 2016 N.C. App. LEXIS 242 , aff'd, 369 N.C. 310 , 794 S.E.2d 501, 2016 N.C. LEXIS 1111 (2016).

IX.Instructions

Instructions which merely list but do not define and explain the elements of kidnapping to the jury are not sufficient. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

Court Not Required to Instruct that Acts of Confinement Be Separate from Other Felony Charged. —

Trial court did not err in refusing to instruct that in order for defendant’s acts of confinement to constitute kidnapping, they must have been separate, complete and independent of the robbery since evidence was sufficient to support trial court’s instruction as given where defendant forced five employees to back of store and into freezer, retrieved one employee and forced him from freezer and into office where he was forced to open safe, guided that employee back to freezer, and informed all five employees that they would be shot if they left freezer. State v. Clinding, 92 N.C. App. 555, 374 S.E.2d 891, 1989 N.C. App. LEXIS 8 (1989).

Charge on Elements of First and Second-Degree Kidnapping Held Correct. —

By stating, “If you do not find the defendant guilty of first-degree kidnapping, you must determine whether he is guilty of second-degree kidnapping. Second-degree kidnapping differs from first-degree kidnapping only in that it is unnecessary for the State to prove that the person had been sexually assaulted,” trial court correctly charged jury on elements of first and second-degree kidnapping. State v. Coats, 100 N.C. App. 455, 397 S.E.2d 512, 1990 N.C. App. LEXIS 1070 (1990).

Instructions on Elements of Kidnapping Held Improper. —

Where the trial judge instructed the jury that kidnapping was the taking and carrying away without lawful authority of a human being by force, threat of force, or fraud, the trial judge failed to properly instruct the jury on the elements of kidnapping. State v. Wingo, 30 N.C. App. 123, 226 S.E.2d 221, 1976 N.C. App. LEXIS 2164 (1976).

An instruction permitting the jury to find either defendant guilty of kidnapping if they found from the evidence that he confined, restrained or removed from one place to another either of the victims for the purpose of obtaining information, even though such a purpose is not one of the proscribed purposes set out in subsection (a) of this section, was error and entitled the defendants to a new trial. State v. Hoots, 33 N.C. App. 258, 234 S.E.2d 764, 1977 N.C. App. LEXIS 2174 (1977).

Instruction on Elements of Kidnapping Held Not Prejudicial. —

Defendant was not prejudiced by a portion of the charge in which the court stated that two of the essential elements of kidnapping a person under the age of 16 were that the victim did not consent and that the victim had not reached his sixteenth birthday, where the court in other portions of the charge instructed the jury that before it could find defendant guilty of kidnapping the State must prove beyond a reasonable doubt, among other things, that he had not reached his sixteenth birthday; and that his parents did not consent to his confinement or restraint. State v. McGuire, 49 N.C. App. 70, 270 S.E.2d 526, 1980 N.C. App. LEXIS 3355 (1980).

Instruction Requiring Substantiality in Terms of Distance and Time is Error. —

The Court of Appeals erred in its holding that “substantiality” in terms of distance or time is an essential of kidnapping and in its pronouncements that the trial judge must instruct the jury that “confinement” or “restraint,” as used in this statute, means confinement or restraint “for a substantial period” and that “removal,” as used in this statute, requires a movement “for a substantial distance.” State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

The failure of the trial court to instruct that kidnapping by unlawful confinement means confinement for a substantial period and not merely incidental to the commission of another crime; that kidnapping by unlawful restraint means restraint for a substantial period of time and not merely incidental to the commission of another crime; or that kidnapping by unlawfully moving one from one place to another means movement for a substantial distance and not merely incidental to the commission of another crime was not error in light of State v. Fulcher, 294 N.C. 503 , 243 S.E.2d 338 (1978). State v. Alston, 294 N.C. 577 , 243 S.E.2d 354, 1978 N.C. LEXIS 1291 (1978).

A charge to the jury that in order to constitute kidnapping under subsection (a) any unlawful confinement, restraint, or removal from one place to another must involve a substantial period or distance would be improper. State v. Silhan, 297 N.C. 660 , 256 S.E.2d 702, 1979 N.C. LEXIS 1270 (1979).

Instruction on “Distance Carried Away” Held Not Reversible Error. —

In prosecution for kidnapping, where the distance the victim was carried is immaterial, the court’s instructing the jury that “any carrying away is sufficient, members of the jury, that is the distance he is carried is immaterial,” though disapproved, did not constitute reversible error. State v. Owen, 24 N.C. App. 598, 211 S.E.2d 830, 1975 N.C. App. LEXIS 2450 , cert. denied, 287 N.C. 263 , 214 S.E.2d 435, 1975 N.C. LEXIS 1111 (1975).

Charge on Unlawful Restraint Sufficient. —

Any unlawful asportation involves unlawful restraint, and any unlawful confinement must involve unlawful restraint. Therefore, if a case were to involve asportation or confinement, it would not be necessary to charge on either. A charge on unlawful restraint would be sufficient. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

Instruction on Kidnapping by Fraud. —

If it be conceded arguendo that the evidence was sufficient to require a charge on kidnapping by fraud as well as kidnapping by force, it is not perceived how a failure to charge on the fraudulent aspect of the matter was prejudicial to defendant, since kidnapping effected by fraud is still kidnapping, and failure to so charge would have been advantageous to defendant. State v. Ingland, 278 N.C. 42 , 178 S.E.2d 577, 1971 N.C. LEXIS 936 (1971).

Instruction Defining Terror. —

In a prosecution for kidnapping, the trial judge was correct in defining terror, for purposes of this section, as involving more than ordinary fear. State v. Jones, 36 N.C. App. 447, 244 S.E.2d 709, 1978 N.C. App. LEXIS 2527 (1978).

Instructions as to Lesser Included Offenses. —

Where there was no evidence of any included lesser offenses embraced within the indictments for rape and kidnapping, the court was under no duty to charge on lesser included offenses. State v. Bynum, 282 N.C. 552 , 193 S.E.2d 725, 1973 N.C. LEXIS 1107 , cert. denied, 414 U.S. 836, 94 S. Ct. 182, 38 L. Ed. 2d 72, 1973 U.S. LEXIS 463 (1973), cert. denied, 414 U.S. 869, 94 S. Ct. 182, 38 L. Ed. 2d 116, 1973 U.S. LEXIS 827 (1973).

The trial court did not err in failing to instruct on the lesser-included offense of false imprisonment, where the evidence shows that defendant, who was charged with kidnapping the victim for the purpose of facilitating the commission of a felony, confined, restrained, or removed the victim in order to commit a robbery and there was no evidence indicating that defendant acted for any other purpose. State v. Lancaster, 137 N.C. App. 37, 527 S.E.2d 61, 2000 N.C. App. LEXIS 266 (2000).

In a prosecution for first degree kidnapping, the defendants were not entitled to have the jury instructed with regard to second degree kidnapping as a lesser included offense, since there was no evidence that the defendants consciously and willfully left the victims in a safe place, where the victims were left in a house and in the back yard of the house when the defendants shot one victim and chased another as she escaped. State v. Parker, 143 N.C. App. 680, 550 S.E.2d 174, 2001 N.C. App. LEXIS 322 (2001).

There was no error in the trial court’s failure to submit the charge of second-degree kidnapping to the jury because there was no affirmative or willful action on the part of defendants to release the victims, as alleged by defendants. State v. Love, 177 N.C. App. 614, 630 S.E.2d 234, 2006 N.C. App. LEXIS 1189 (2006).

Trial court did not plainly err by failing to instruct the jury on false imprisonment since the jury had ample evidence of the defendant’s guilt of kidnapping, through the victim and multiple unbiased eyewitnesses. State v. James, 248 N.C. App. 751, 789 S.E.2d 543, 2016 N.C. App. LEXIS 803 (2016).

Instruction on False Imprisonment as Lesser Offense. —

In appropriate cases the trial judge should instruct the jury on false imprisonment as a lesser offense of kidnapping. State v. Fulcher, 34 N.C. App. 233, 237 S.E.2d 909, 1977 N.C. App. LEXIS 1648 (1977), aff'd, 294 N.C. 503 , 243 S.E.2d 338, 1978 N.C. LEXIS 1288 (1978).

It is not error to fail to instruct on false imprisonment if there is no evidence tending to show that the victim was kidnapped for some purpose other than rape, or for no purpose. State v. Franks, 74 N.C. App. 661, 329 S.E.2d 717, 1985 N.C. App. LEXIS 3558 (1985).

Where the evidence indicated that defendant confined, restrained, and removed the victim in order to terrorize and sexually assault her and there was no evidence indicating that defendant acted for any other purpose, the trial court did not err in failing to instruct on the lesser-included offense of false imprisonment. State v. Claypoole, 118 N.C. App. 714, 457 S.E.2d 322, 1995 N.C. App. LEXIS 378 (1995).

Trial court did not err in failing to instruct on the lesser-included offense of false imprisonment, where the evidence showed that defendant restrained the victim for the purpose of terrorizing her; among other things, the evidence showed that defendant approached the victim with a rifle, grabbed her hair, and forced her into his vehicle, where he placed her in headlock, choked her, and caused her to hit her head against the side of the vehicle. State v. Jacobs, 172 N.C. App. 220, 616 S.E.2d 306, 2005 N.C. App. LEXIS 1586 (2005).

Defendant’s conviction for second-degree kidnapping was affirmed because the trial court did not err in denying defendant’s request to instruct the jury regarding the lesser-included offense of false imprisonment, as defendant had the specific intent to terrorize his victim, a woman whom defendant grabbed on the street, attempted to drag toward some bushes, and wrestled with and sexually molested before defendant fled. State v. Harrison, 169 N.C. App. 257, 610 S.E.2d 407, 2005 N.C. App. LEXIS 608 (2005), aff'd, 360 N.C. 394 , 627 S.E.2d 461, 2006 N.C. LEXIS 27 (2006).

In an action charging defendant with, inter alia, second degree kidnapping, defendant was not entitled to a jury charge on the lesser-included offense of false imprisonment because defendant failed to object to the exclusion of such an instruction and defendant failed to show that the jury probably would have convicted defendant of false imprisonment rather than kidnapping if the judge had given an instruction on false imprisonment. State v. Rodriguez, 192 N.C. App. 178, 664 S.E.2d 654, 2008 N.C. App. LEXIS 1542 (2008).

Defendant was entitled to a new trial kidnapping charge, because the jury should have been instructed on lesser included offenses of false imprisonment where the jury could have found that defendant formed the intent to rob the victim only after restraint ended and the victim got out of the car. State v. Ryder, 196 N.C. App. 56, 674 S.E.2d 805, 2009 N.C. App. LEXIS 457 (2009).

Failure to Instruct on False Imprisonment Not Plain Error. —

Where the State’s evidence unerringly pointed to a purpose to terrorize the victim in defendant’s act of grabbing the victim at gunpoint and telling her that he was going to kill her, and the jury clearly rejected defendant’s testimony that the whole incident was a misunderstanding, there was no evidence supporting the lesser included offense of false imprisonment, and the trial court did not commit plain error in failing to instruct the jury thereon. State v. Nicholson, 99 N.C. App. 143, 392 S.E.2d 748, 1990 N.C. App. LEXIS 468 (1990).

It was not plain error for the trial court to fail to instruct the jury on the lesser-included offense of false imprisonment in the second-degree kidnapping charge where defendant’s overly sexual actions were inconsistent with his allegation that he restrained the victim for purposes of using the telephone or restroom, or for purposes of horseplay. State v. Mangum, 158 N.C. App. 187, 580 S.E.2d 750, 2003 N.C. App. LEXIS 1036 (2003).

Instructions on Theories Not Charged or Substantiated Held Improper. —

Where theories of the crime neither supported by the evidence nor charged in the bill of indictment were included in the trial court’s instructions to the jury in a prosecution for kidnapping, the defendant was entitled to a new trial. State v. Dammons, 293 N.C. 263 , 237 S.E.2d 834, 1977 N.C. LEXIS 931 (1977); State v. Mitchell, 77 N.C. App. 663, 97 N.C. App. 143, 335 S.E.2d 793, 1985 N.C. App. LEXIS 4186 (1985).

In a prosecution for kidnapping upon an indictment charging defendant with unlawfully removing the victim from one place to another for the purpose of facilitating the commission of the felony of rape and for the purpose of facilitating the flight of defendant following the commission of a felony, the trial judge improperly instructed the jury on possible theories of conviction not charged in the indictment when he instructed that defendant would be guilty of kidnapping if the jury found that defendant’s confinement or constraint of the victim was for the purpose of facilitating his flight from apprehension for another crime, or to obtain the use of her vehicle. State v. Taylor, 301 N.C. 164 , 270 S.E.2d 409, 1980 N.C. LEXIS 1148 (1980).

Where the judge’s instructions permitted the jury to predicate guilt on theories of the crime which were not charged in the bill of indictment and which were, in one instance, not supported by the evidence at trial, there was “plain error” in the jury instructions, and defendant was therefore entitled to receive a new trial on first-degree kidnapping charge. State v. Brown, 312 N.C. 237 , 321 S.E.2d 856, 1984 N.C. LEXIS 1796 (1984).

Instruction to the jury which charged a theory not supported by the indictment was erroneous. State v. Odom, 316 N.C. 306 , 341 S.E.2d 332, 1986 N.C. LEXIS 2067 (1986).

It was not plain error to instruct a jury on an unindicted statutory element because defendant showed no effect on the jury’s verdict, as (1) the State presented compelling evidence of the element of not released in a safe place, and (2) defendant was convicted under all three elements of the statutory subsection in question. State v. Harding, 258 N.C. App. 306, 813 S.E.2d 254, 2018 N.C. App. LEXIS 245 , writ denied, 371 N.C. 450 , 817 S.E.2d 205, 2018 N.C. LEXIS 669 (2018).

Unsupported Instructions Constitute Error. —

It is error, generally prejudicial, for the court to instruct upon those purposes set forth in this section which are not supported by the evidence. State v. Moore, 74 N.C. App. 464, 328 S.E.2d 864, 1985 N.C. App. LEXIS 3541 (1985), modified, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

Where although there was no evidence in the record to support a finding that at the time defendant originally confined, restrained and removed the victim he did so for the purpose of holding her as a hostage within the meaning of North Carolina law, the court nevertheless instructed the jury as to what was necessary for a conviction under the hostage theory, defendant was entitled to a new trial. State v. Moore, 74 N.C. App. 464, 328 S.E.2d 864, 1985 N.C. App. LEXIS 3541 (1985), modified, 315 N.C. 738 , 340 S.E.2d 401, 1986 N.C. LEXIS 1881 (1986).

Court vacated defendant’s second-degree kidnapping conviction; the trial court erred in instructing the jury that it could find defendant guilty if he unlawfully confined, restrained, or removed the victim when the indictment alleged only unlawful removal. State v. Smith, 162 N.C. App. 46, 589 S.E.2d 739, 2004 N.C. App. LEXIS 60 (2004).

Failure to Instruct on Specific Intent Held Error. —

The trial court’s aiding and abetting instructions were erroneous in failing to require that the jury find the defendant possessed the specific criminal intent for commission of first degree burglary and second degree kidnapping. The trial court’s use of the phrases “knowingly encouraged and[/or] aided” did not “adequately convey” the requisite specific intent concept as expressly requested by defendant in writing. State v. Lucas, 138 N.C. App. 226, 530 S.E.2d 602, 2000 N.C. App. LEXIS 596 (2000), aff'd in part and rev'd in part, 353 N.C. 568 , 548 S.E.2d 712, 2001 N.C. LEXIS 668 (2001).

Refusal to Instruct on Unproved Purposes. —

When a trial judge determines that the State has failed to prove one or more of the purposes of kidnapping alleged in the indictment, he may properly refuse to instruct on that purpose or those purposes. State v. Sellars, 52 N.C. App. 380, 278 S.E.2d 907, 1981 N.C. App. LEXIS 2474 , cert. denied, 304 N.C. 200 , 285 S.E.2d 108, 1981 N.C. LEXIS 1464 (1981).

Instruction Held Proper. —

Because the testimony was sufficient to show that a kidnapping victim was involuntarily released into the focal point of an officer’s weapon, the trial court did not invade the province of the jury by instructing the jury under Heatwole that, should it find the release occurred under those circumstances, the release was not in a “safe place.” State v. Corbett, 168 N.C. App. 117, 607 S.E.2d 281, 2005 N.C. App. LEXIS 146 (2005), aff'd, 360 N.C. 287 , 624 S.E.2d 625, 2006 N.C. LEXIS 4 (2006).

Trial court did not commit plain error under N.C. R. App. P. 10(c)(4) when the indictment charged that defendant “confined, restrained and removed” the victim and the jury was instructed that to convict of kidnapping based on a finding that defendant “restrained or removed” the victim because the indictment alleging all three theories was sufficient and put defendant on notice that the State intended to show that defendant committed kidnapping in any one of the three theories; the jury instruction correctly allowed any one of the three theories to serve as the basis for a finding of kidnapping. State v. Key, 180 N.C. App. 286, 636 S.E.2d 816, 2006 N.C. App. LEXIS 2291 (2006).

In defendant’s prosecution for first-degree kidnapping under G.S. 14-39(a), the jury was properly instructed that the term “release,” for purposes of finding if a victim was not released by defendant in a safe place, meant that the victim was free from all restraint, because that comported with the plain and ordinary meaning of the word. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93, 2007 N.C. App. LEXIS 1050 (2007).

Trial court properly instructed the jury on the charges against defendant of second-degree kidnapping in violation of G.S. 14-39 . Contrary to defendant’s contention, G.S. 14-39 did not require for a conviction that a person know that a victim was under the age of 16 and, thus, the trial court did not err in not defining the term “unlawfully” when it instructed the jury on that offense regarding defendant transporting to girls under the age of 16 to defendant’s house. State v. Bowman, 188 N.C. App. 635, 656 S.E.2d 638, 2008 N.C. App. LEXIS 281 (2008).

Because the trial court’s instruction clearly and appropriately defined “terrorizing” and “serious bodily harm,” as required for guilt of the offense of kidnapping under G.S. 14-39 , defendant’s claim was overruled. State v. Bonilla, 209 N.C. App. 576, 706 S.E.2d 288, 2011 N.C. App. LEXIS 213 (2011).

§ 14-40. Enticing minors out of the State for the purpose of employment.

If any person shall employ and carry beyond the limits of this State any minor, or shall induce any minor to go beyond the limits of this State, for the purpose of employment without the consent in writing, duly authenticated, of the parent, guardian or other person having authority over such minor, he shall be guilty of a Class 2 misdemeanor. The fact of the employment and going out of the State of the minor, or of the going out of the State by the minor, at the solicitation of the person for the purpose of employment, shall be prima facie evidence of knowledge that the person employed or solicited to go beyond the limits of the State is a minor.

History. 1891, c. 45; Rev., s. 3630; C.S., s. 4222; 1969, c. 1224, s. 4; 1993, c. 539, s. 21; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Count Joined with One Under G.S. 14-41 . —

An indictment for abduction, containing two counts, one under this section and the second under G.S. 14-41 , cannot be quashed for misjoinder of two different offenses, as the two counts are merely statements of the same transaction to meet the different phases of proof. State v. Burnett, 142 N.C. 577 , 55 S.E. 72, 1906 N.C. LEXIS 292 (1906).

§ 14-41. Abduction of children.

  1. Any person who, without legal justification or defense, abducts or induces any minor child who is at least four years younger than the person to leave any person, agency, or institution lawfully entitled to the child’s custody, placement, or care shall be guilty of a Class F felony.
  2. The provisions of this section shall not apply to any public officer or employee in the performance of his or her duty.

History. 1879, c. 81; Code, s. 973; Rev., s. 3358; C.S., s. 4223; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1144; 1994, Ex. Sess., c. 24, s. 14(c); 1995 (Reg. Sess., 1996), c. 745, s. 1.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

This section is broad and comprehensive in its terms, and embraces all means by which the child may be abducted. State v. Chisenhall, 106 N.C. 676 , 11 S.E. 518, 1890 N.C. LEXIS 366 (1890).

The proviso in G.S. 14-42 must be read in harmony with this section. State v. Walker, 35 N.C. App. 182, 241 S.E.2d 89, 1978 N.C. App. LEXIS 2920 (1978).

Definition. —

Abduction under this section, is the taking and carrying away of a child, ward, etc., either by fraud, persuasion, or open violence. The consent of the child is no defense. If there is no force or inducement and the departure of the child is entirely voluntary, there is no abduction. State v. Chisenhall, 106 N.C. 676 , 11 S.E. 518, 1890 N.C. LEXIS 366 (1890); State v. Burnett, 142 N.C. 577 , 55 S.E. 72, 1906 N.C. LEXIS 292 (1906).

Intent Not Required. —

There is nothing in this section which requires that the abduction should be with a particular intent. It is only necessary to allege and prove that the child was abducted, or by any means induced to leave its custodian. State v. Chisenhall, 106 N.C. 676 , 11 S.E. 518, 1890 N.C. LEXIS 366 (1890); State v. Nobles, 99 N.C. App. 473, 393 S.E.2d 328, 1990 N.C. App. LEXIS 521 (1990), aff'd, 329 N.C. 239 , 404 S.E.2d 668, 1991 N.C. LEXIS 406 (1991).

Force Not Required. —

In a prosecution under this section it is not necessary for the State to show that the child was carried away by force. State v. Ashburn, 230 N.C. 722 , 55 S.E.2d 333, 1949 N.C. LEXIS 429 (1949).

When considering the age of a kidnapping victim as an aggravating factor in sentencing a person convicted under this section, it is not necessary to show that the abduction was caused by the child’s vulnerability. It is not the cause of the taking which supports the aggravating factor. Whatever the motive, if the victim is more vulnerable because of age, this aggravates the crime. State v. Nobles, 329 N.C. 239 , 404 S.E.2d 668, 1991 N.C. LEXIS 406 (1991).

Jurisdiction. —

Instruction and special verdict as to North Carolina’s jurisdiction were not required when defendant was charged with child abduction based on acts occurring in North Carolina and Florida because: (1) defendant did not contest facts relevant to North Carolina’s jurisdiction; and (2) at least one crime element occurred in North Carolina. State v. Lalinde, 231 N.C. App. 308, 750 S.E.2d 868, 2013 N.C. App. LEXIS 1228 (2013).

Vulnerability in Hospital. —

That a child victim of kidnapping was more vulnerable because he was in a hospital at the time of his abduction was a proper aggravating factor. State v. Nobles, 329 N.C. 239 , 404 S.E.2d 668, 1991 N.C. LEXIS 406 (1991).

The increased vulnerability of a victim (an infant abducted from a hospital shortly after birth) because of his being in a hospital was a proper nonstatutory aggravating factor. A person should be able to enter a hospital without feeling he has to be on guard against wrongdoers. It was particularly egregious that the defendant disguised herself as a nurse and used this disguise to abduct the baby. The mother of the child had a right to rely on a person dressed as a nurse. This made the victim more vulnerable than he ordinarily would have been and makes it a worse crime than if it had occurred under other circumstances. It is not only that the victim was away from the safety of his home that made this a properly found aggravating factor. State v. Nobles, 329 N.C. 239 , 404 S.E.2d 668, 1991 N.C. LEXIS 406 (1991).

Father’s Consent a Good Defense. —

If the carrying away was with the father’s consent, that fact is a defense the burden of which is upon the defendant. State v. Burnett, 142 N.C. 577 , 55 S.E. 72, 1906 N.C. LEXIS 292 (1906).

Where the only inference reasonably deducible from the evidence in a prosecution under this section was that the defendant was acting with the consent of the child’s father, the trial court erred in denying the defendant’s motion for judgment as of nonsuit. State v. Walker, 35 N.C. App. 182, 241 S.E.2d 89, 1978 N.C. App. LEXIS 2920 (1978).

Father Not Guilty in Absence of Order in Favor of Mother. —

In the absence of a custody order in favor of the mother, the father of the child taken cannot be guilty of the crime of child abduction. State v. Walker, 35 N.C. App. 182, 241 S.E.2d 89, 1978 N.C. App. LEXIS 2920 (1978).

The indictment need not state the means by which the abduction was accomplished, nor that it was done without the consent and against the will of her father, State v. Burnett, 142 N.C. 577 , 55 S.E. 72 (1906), nor that the defendant was not a nearer relation to the child than the person from whose custody the child was abducted. State v. George, 93 N.C. 567 , 1885 N.C. LEXIS 120 (1885).

Evidence that defendant induced a minor to accompany him on a trip for immoral purposes by promising marriage is sufficient to sustain conviction. State v. Ashburn, 230 N.C. 722 , 55 S.E.2d 333, 1949 N.C. LEXIS 429 (1949).

Right Against Self-Incrimination. —

Trial court erred by admitting defendant’s affidavit of indigency into evidence because in doing so, it required defendant to surrender his Fifth Amendment right against compelled self-incrimination in order to assert his right to the assistance of counsel, as his statement of his date of birth on his affidavit was testimonial because he was charged with abduction of a child and statutory rape. However, the error was harmless because neither charge required the State to prove defendant’s exact age and the victim’s testimony established that defendant was 19 years old and she was 14 when the crimes occurred. State v. Diaz, 372 N.C. 493 , 831 S.E.2d 532, 2019 N.C. LEXIS 790 (2019).

Social Worker Became Agent of State. —

In case involving crimes against child victim, where social worker went beyond merely fulfilling her role as the victim’s social worker and began working with the sheriff’s department on the case prior to interviewing defendant, the social worker’s role changed and became essentially like that of an agent of the State; accordingly, because the social worker did not advise defendant of her Miranda rights, the trial court erred in denying defendant’s motion to suppress statements made during her interview with the social worker. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, 1993 N.C. App. LEXIS 98 , cert. denied, 333 N.C. 465 , 427 S.E.2d 626, 1993 N.C. LEXIS 123 (1993).

No Requirement of Charge on Guilty Knowledge. —

Where a kidnapping defendant conceded that she did not present any evidence to support a mistake of fact defense but said “the inference that she committed the prohibited act without criminal intent plainly was raised by the evidence,” this was not enough evidence to require a charge on guilty knowledge. If the defendant did not know that her conduct was criminal she still may be found guilty if she knew she was doing all the acts that constituted the elements of the crime. State v. Nobles, 329 N.C. 239 , 404 S.E.2d 668, 1991 N.C. LEXIS 406 (1991).

Use of Wrong Expression in Charge to Jury. —

The rule that what the court says to the jury is to be considered in its entirety and contextually saves from successful attack the use, on a trial for abduction, of the expression “taken out,” where the jury must have understood from the entire charge that the court meant thereby “taken away.” State v. Truelove, 224 N.C. 147 , 29 S.E.2d 460, 1944 N.C. LEXIS 320 (1944).

Satellite-Based Monitoring. —

Order requiring defendant to enroll in satellite-based monitoring under G.S. 14-208.40 B(1m) for the remainder of his life was proper where defendant was convicted of a reportable offense under G.S. 14-208.6(4) as his 2009 convictions for abduction of children under G.S. 14-41 fell under the offense against a minor portion of the reportable conviction definition; the trial court had determined at the sentencing hearing that defendant’s 2009 convictions were reportable offenses and that defendant was not the victims’ parent. State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Motion to Dismiss Properly Denied. —

Trial court did not err in denying defendant’s motion to dismiss the abduction of a child charge because the victim’s testimony indicated that defendant induced the victim to leave with him. State v. Diaz, 256 N.C. App. 528, 808 S.E.2d 450, 2017 N.C. App. LEXIS 967 (2017), aff'd in part and rev'd in part, 372 N.C. 493 , 831 S.E.2d 532, 2019 N.C. LEXIS 790 (2019).

Trial court did not err by denying defendant’s motion to dismiss a child abduction charge when defendant led officers on a high-speed chase after discovering the child in the back seat of the pickup truck that defendant had stolen because the child abduction statute included no element of specific intent. Furthermore, the State of North Carolina presented substantial evidence that defendant knew defendant had abducted the child when defendant called a 911 operator and then led police on the chase with the child strapped into a car seat. State v. French, 273 N.C. App. 601, 849 S.E.2d 360, 2020 N.C. App. LEXIS 683 (2020).

OPINIONS OF ATTORNEY GENERAL

Removal of Child from State by Parent in Absence of Custody Order. — See opinion of Attorney General to Honorable Roy R. Holdford, Jr., Solicitor, Second Solicitorial District, 40 N.C. Op. Att'y Gen. 143 (1970).

Applicability to Arrest by Special Police. — See opinion of Attorney General to Mr. G.R. Rankin, Vanguard Security Service, 40 N.C. Op. Att'y Gen. 152 (1970).

§ 14-42. [Repealed]

Repealed by Session Laws 1993, c. 539, s. 1358.2.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-43. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 29(2).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-43.1. Unlawful arrest by officers from other states.

A law-enforcement officer of a state other than North Carolina who, knowing that he is in the State of North Carolina and purporting to act by authority of his office, arrests a person in the State of North Carolina, other than as is permitted by G.S. 15A-403 , is guilty of a Class 2 misdemeanor.

History. 1973, c. 1286, s. 10; 1993, c. 539, s. 22; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-43.2. [Repealed]

Repealed by Session Laws 2006-247, s. 20(a), effective December 1, 2006, and applicable to offenses committed on or after that date.

Cross References.

For current provisions regarding involuntary servitude, see G.S. 14-43.12 .

Editor’s Note.

Session Laws 2006-247, s. 1(a) provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22 provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-43.3. Felonious restraint.

A person commits the offense of felonious restraint if he unlawfully restrains another person without that person’s consent, or the consent of the person’s parent or legal custodian if the person is less than 16 years old, and moves the person from the place of the initial restraint by transporting him in a motor vehicle or other conveyance. Violation of this section is a Class F felony. Felonious restraint is considered a lesser included offense of kidnapping.

History. 1985, c. 545, s. 1; 1993, c. 539, s. 1147; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

Restraint. —

It was not error to deny defendant’s motion to dismiss a charge of felonious restraint due to insufficient evidence of restraint because: (1) the evidence allowed a reasonable jury to find defendant restrained the victim by fraud, based on defendant’s failure to make defendant’s intentions to have sex with the victim clear when defendant knew the victim thought defendant was rescuing the victim; and (2) a reasonable juror could find the victim did not understand the victim would be forced to have sex with defendant and the victim would not have left with defendant had the victim known this. State v. Lalinde, 231 N.C. App. 308, 750 S.E.2d 868, 2013 N.C. App. LEXIS 1228 (2013).

Relationship to Kidnapping. —

Felonious restraint is a lesser included offense of kidnapping. State v. Wilson, 128 N.C. App. 688, 497 S.E.2d 416, 1998 N.C. App. LEXIS 164 (1998).

Duty of State to Allege Transportation. —

The legislature’s proclamation in this section that felonious restraint is a lesser included offense of kidnapping does not relieve the State of its duty to allege in the kidnapping indictment that the defendant transported the victim by motor vehicle or other conveyance. State v. Wilson, 128 N.C. App. 688, 497 S.E.2d 416, 1998 N.C. App. LEXIS 164 (1998).

Insufficient Evidence. —

Record contained no evidence that defendant intended to transport the victim by vehicle when he entered the apartment in which she was hiding and, thus, it failed to show that defendant intended to commit the offense of felonious restraint. State v. Allah, 231 N.C. App. 88, 750 S.E.2d 903, 2013 N.C. App. LEXIS 1248 (2013).

§§ 14-43.4 through 14-43.9.

Reserved for future codification purposes.

Article 10A. Human Trafficking.

§ 14-43.10. Definitions.

  1. Definitions. —  The following definitions apply in this Article:
    1. Coercion. — The term includes all of the following:
      1. Causing or threatening to cause bodily harm to any person, physically restraining or confining any person, or threatening to physically restrain or confine any person.
      2. Exposing or threatening to expose any fact or information that if revealed would tend to subject a person to criminal or immigration proceedings, hatred, contempt, or ridicule.
      3. Destroying, concealing, removing, confiscating, or possessing any actual or purported passport or other immigration document, or any other actual or purported government identification document, of any person.
      4. Providing a controlled substance, as defined by G.S. 90-87 , to a person.
    2. Deception. — The term includes all of the following:
      1. Creating or confirming another’s impression of an existing fact or past event that is false and which the accused knows or believes to be false.
      2. Maintaining the status or condition of a person arising from a pledge by that person of his or her personal services as security for a debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined, or preventing a person from acquiring information pertinent to the disposition of such debt.
      3. Promising benefits or the performance of services that the accused does not intend to deliver or perform or knows will not be delivered or performed.
    3. Involuntary servitude. — The term includes the following:
      1. The performance of labor, whether or not for compensation, or whether or not for the satisfaction of a debt; and
      2. By deception, coercion, or intimidation using violence or the threat of violence or by any other means of coercion or intimidation.
    4. Minor. — A person who is less than 18 years of age.
    5. Sexual servitude. — The term includes the following:
      1. Any sexual activity as defined in G.S. 14-190.13 for which anything of value is directly or indirectly given, promised to, or received by any person, which conduct is induced or obtained by coercion or deception or which conduct is induced or obtained from a person under the age of 18 years; or
      2. Any sexual activity as defined in G.S. 14-190.13 that is performed or provided by any person, which conduct is induced or obtained by coercion or deception or which conduct is induced or obtained from a person under the age of 18 years.
    6. Victim. — Unless the context requires otherwise, a person subjected to the practices set forth in G.S. 14-43.11 , 14-43.12, or 14-43.13.
  2. Reserved.

History. 2006-247, s. 20(b); 2018-75, s. 1; 2018-145, s. 11(e).

Cross References.

As to North Carolina Human Trafficking Commission, see G.S. 7A-354 .

Editor’s Note.

Session Laws 2006-247, s. 20(b), enacted this section as G.S. 14-43.4 . It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 1(a) provides: “This act shall be known as ‘An Act to Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 22, makes this article effective December 1, 2006, and applicable to offenses committed on or after that date, and provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2018-75, s. 8(a), (b), provides: “(a) Study. — The North Carolina Human Trafficking Commission, in consultation with the Conference of District Attorneys and the Office of Indigent Defense Services, shall study the human trafficking offenses set forth in Article 10A of Chapter 14 of the General Statutes. At a minimum, the study shall consider (i) the appropriate level of sentencing for each offense, (ii) whether any revisions to the sentencing levels would reduce human trafficking, and (iii) the effects of expanding the eligibility of any post-conviction relief to human trafficking victims.

“(b) Report. — The North Carolina Human Trafficking Commission shall submit its findings from the study required under subsection (a) of this section, including any legislative recommendations, to the Joint Legislative Oversight Committee on Justice and Public Safety by February 1, 2019.”

Session Laws 2018-75, s. 9, is a severability clause.

Session Laws 2018-75, s. 10, as amended by Session Laws 2018-145, s. 11(e), made subdivision (a)(6), as added by Session Laws 2018-75, s. 1, effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2018-75, s. 1, as amended by Session Laws 2018-145, s. 11(e), added subdivision (a)(6). For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Moving Upstream: The Merits of a Public Health Law Approach to Human Trafficking,” 89 N.C.L. Rev. 447 (2011).

For comment, “Employment and Diversity-Based Visas: Why Birthright Citizenship Is Not All That Is Wrong with America’s Immigration System,” see 39 Campbell L. Rev. 413 (2017).

For article, “Fighting Human Trafficking Today: Moral Panics, Zombie Data, and the Seduction of Rescue,” see 52 Wake Forest L. Rev. 477 (2017).

For article, “Attacking Human Trafficking through Legislative Change,” see 52 Wake Forest L. Rev. 457 (2017).

For article, “Criminalizing Buyers under Child Sex Trafficking Laws as a Critical Protection for Child Victims,” see 52 Wake Forest L. Rev. 435 (2017).

For article, “Meeting the Legal Needs of Human Trafficking Survivors,” see 52 Wake Forest L. Rev. 379 (2017).

For article, “Federal Human Trafficking Review: An Analysis & Recommendations from the 2016 Legal Developments,” see 52 Wake Forest L. Rev. 293 (2017).

§ 14-43.11. Human trafficking.

  1. A person commits the offense of human trafficking when that person (i) knowingly or in reckless disregard of the consequences of the action recruits, entices, harbors, transports, provides, or obtains by any means another person with the intent that the other person be held in involuntary servitude or sexual servitude or (ii) willfully or in reckless disregard of the consequences of the action causes a minor to be held in involuntary servitude or sexual servitude.
  2. A person who violates this section is guilty of a Class C felony if the victim of the offense is an adult. A person who violates this section is guilty of a Class B2 felony if the victim of the offense is a minor.
  3. Each violation of this section constitutes a separate offense and shall not merge with any other offense. Evidence of failure to deliver benefits or perform services standing alone shall not be sufficient to authorize a conviction under this section.

    (c1) Mistake of age is not a defense to prosecution under this section. Consent of a minor is not a defense to prosecution under this section.

  4. A person who is not a legal resident of North Carolina, and would consequently be ineligible for State public benefits or services, shall be eligible for the public benefits and services of any State agency if the person is otherwise eligible for the public benefit and is a victim of an offense charged under this section. Eligibility for public benefits and services shall terminate at such time as the victim’s eligibility to remain in the United States is terminated under federal law.

History. 2006-247, s. 20(b); 2007-547, s. 1; 2013-368, s. 1; 2017-151, s. 1.

Editor’s Note.

Session Laws 2006-247, s. 20(b), enacted this section as G.S. 14-43.5. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2007-547, s. 11, provides: “The North Carolina Justice Academy shall establish protocols suitable for the training of State and local law enforcement officers. The protocols shall be made available to all State and local law enforcement agencies so that the agencies may conduct training on:

“(1) The phenomenon of human trafficking and State and federal laws on human trafficking.

“(2) How to recognize and identify victims of one or more of the practices set forth in G.S. 14-43.11 , G.S. 14-43.12 , or G.S. 14-43.13 .

“(3) Methods for protecting trafficking victims and possible trafficking victims, and advising them of their rights.

“(4) Procedures and techniques for handling specialized needs of victims who may face cultural, language, and other barriers that impede ability to request and obtain available services.

“Nothing in this section shall be construed to require the North Carolina Justice Academy to conduct training of State or local law enforcement officers.”

Session Laws 2017-151, s. 6, makes the amendment to subsection (b) of this section by Session Laws 2017-151, s. 1, which substituted “Class C felony” for “Class F felony” in the first sentence and “Class B2 felony” for “Class C felony” in the second sentence, effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2007-547, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, added subsection (d).

Session Laws 2013-368, s. 1, effective October 1, 2013, in subsection (a), substituted “person (i) knowingly or in reckless disregard of the consequences of the action” for “person knowingly” and added “or (ii) willfully or in reckless disregard of the consequences of the action causes a minor to be held in involuntary servitude or sexual servitude”; and added subsection (c1). For applicability, see Editor’s note.

Session Laws 2017-151, s. 1, in subsection (b), substituted “Class C felony” for “Class F felony” in the first sentence and “Class B2 felony” for “Class C felony” in the second sentence. For effective date and applicability, see editor’s note.

§ 14-43.12. Involuntary servitude.

  1. A person commits the offense of involuntary servitude when that person knowingly and willfully or in reckless disregard of the consequences of the action holds another in involuntary servitude.
  2. A person who violates this section is guilty of a Class F felony if the victim of the offense is an adult. A person who violates this section is guilty of a Class C felony if the victim of the offense is a minor.
  3. Each violation of this section constitutes a separate offense and shall not merge with any other offense. Evidence of failure to deliver benefits or perform services standing alone shall not be sufficient to authorize a conviction under this section.

    (c1) Mistake of age is not a defense to prosecution under this section. Consent of a minor is not a defense to prosecution under this section.

  4. Nothing in this section shall be construed to affect the laws governing the relationship between an unemancipated minor and his or her parents or legal guardian.
  5. If any person reports a violation of this section, which violation arises out of any contract for labor, to any party to the contract, the party shall immediately report the violation to the sheriff of the county in which the violation is alleged to have occurred for appropriate action. A person violating this subsection shall be guilty of a Class 1 misdemeanor.

History. 1983, ch. 746, s. 1; 1993, c. 539, ss. 23, 1146; 1994, Ex. Sess., c. 24, s. 14(c); 2006-247, s. 20(b); 2013-368, s. 2.

Editor’s Note.

Session Laws 2006-247, s. 20(b), enacted this section as G.S. 14-43.6. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2007-547, s. 11, provides: “The North Carolina Justice Academy shall establish protocols suitable for the training of State and local law enforcement officers. The protocols shall be made available to all State and local law enforcement agencies so that the agencies may conduct training on:

“(1) The phenomenon of human trafficking and State and federal laws on human trafficking.

“(2) How to recognize and identify victims of one or more of the practices set forth in G.S. 14-43.11 , G.S. 14-43.12 , or G.S. 14-43.13 .

“(3) Methods for protecting trafficking victims and possible trafficking victims, and advising them of their rights.

“(4) Procedures and techniques for handling specialized needs of victims who may face cultural, language, and other barriers that impede ability to request and obtain available services.

“Nothing in this section shall be construed to require the North Carolina Justice Academy to conduct training of State or local law enforcement officers.”

Effect of Amendments.

Session Laws 2013-368, s. 2, effective October 1, 2013, inserted “or in reckless disregard of the consequences of the action” in subsection (a); and added subsection (c1). For applicability, see Editor’s note.

§ 14-43.13. Sexual servitude.

  1. A person commits the offense of sexual servitude when that person knowingly or in reckless disregard of the consequences of the action subjects, maintains, or obtains another for the purposes of sexual servitude.
  2. A person who violates this section is guilty of a Class D felony if the victim of the offense is an adult. A person who violates this section is guilty of a Class C felony if the victim of the offense is a minor.

    (b1) Mistake of age is not a defense to prosecution under this section. Consent of a minor is not a defense to prosecution under this section.

  3. Each violation of this section constitutes a separate offense and shall not merge with any other offense. Evidence of failure to deliver benefits or perform services standing alone shall not be sufficient to authorize a conviction under this section.

History. 2006-247, s. 20(b); 2013-368, s. 3; 2019-158, s. 1(a).

Editor’s Note.

Session Laws 2006-247, s. 20(b), enacted this section as G.S. 14-43.7. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2007-547, s. 11, provides: “The North Carolina Justice Academy shall establish protocols suitable for the training of State and local law enforcement officers. The protocols shall be made available to all State and local law enforcement agencies so that the agencies may conduct training on:

“(1) The phenomenon of human trafficking and State and federal laws on human trafficking.

“(2) How to recognize and identify victims of one or more of the practices set forth in G.S. 14-43.11 , G.S. 14-43.12 , or G.S. 14-43.13 .

“(3) Methods for protecting trafficking victims and possible trafficking victims, and advising them of their rights.

“(4) Procedures and techniques for handling specialized needs of victims who may face cultural, language, and other barriers that impede ability to request and obtain available services.

“Nothing in this section shall be construed to require the North Carolina Justice Academy to conduct training of State or local law enforcement officers.”

Session Laws 2019-158, s. 1(b), made the amendment to subsection (a) of this section by Session Laws 2019-158, s. 1(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-158, s. 7, is a severability clause.

Effect of Amendments.

Session Laws 2013-368, s. 3, effective October 1, 2013, inserted “or in reckless disregard of the consequences of the action” in subsection (a); substituted “Class D” for “Class F” in subsection (b); and added subsection (b1). For applicability, see Editor’s note.

Session Laws 2019-158, s. 1(a), effective December 1, 2019, substituted “subjects, maintains, or obtains” for “subjects or maintains” and “for the purposes of” for “in” in subsection (a). For effective date and applicability, see editor’s note.

§ 14-43.14. Unlawful sale, surrender, or purchase of a minor.

  1. A person commits the offense of unlawful sale, surrender, or purchase of a minor when that person, acting with willful or reckless disregard for the life or safety of a minor, participates in any of the following: the acceptance, solicitation, offer, payment, or transfer of any compensation, in money, property, or other thing of value, at any time, by any person in connection with the unlawful acquisition or transfer of the physical custody of a minor, except as ordered by the court. This section does not apply to actions that are ordered by a court, authorized by statute, or otherwise lawful.
  2. A person who violates this section is guilty of a Class F felony and shall pay a minimum fine of five thousand dollars ($5,000). For each subsequent violation, a person is guilty of a Class F felony and shall pay a minimum fine of ten thousand dollars ($10,000).
  3. A minor whose parent, guardian, or custodian has sold or attempted to sell a minor in violation of this Article is an abused juvenile as defined by G.S. 7B-101(1) . The court may place the minor in the custody of the Department of Social Services or with such other person as is in the best interest of the minor.
  4. A violation of this section is a lesser included offense of G.S. 14-43.11 .
  5. When a person is convicted of a violation of this section, the sentencing court shall consider whether the person is a danger to the community and whether requiring the person to register as a sex offender pursuant to Article 27A of this Chapter would further the purposes of that Article as stated in G.S. 14-208.5 . If the sentencing court rules that the person is a danger to the community and that the person shall register, then an order shall be entered requiring the person to register.

History. 2012-153, s. 1.

§ 14-43.15. Minor victims.

Any minor victim of a violation of G.S. 14-43.11 , 14-43.12, or 14-43.13 shall be alleged to be abused and neglected and the provisions of Subchapter I of Chapter 7B of the General Statutes shall apply.

History. 2018-68, s. 8.1(c); 2019-177, s. 3.

Editor’s Note.

Session Laws 2018-68, s. 9.1, made this section effective October 1, 2018.

Effect of Amendments.

Session Laws 2019-177, s. 3, effective July 26, 2019, substituted “Statutes” for “Statues.”

§ 14-43.16. Affirmative defense.

  1. Affirmative Defense. —  It is an affirmative defense to a prosecution under this Article that the person charged with the offense was a victim at the time of the offense and was coerced or deceived into committing the offense as a direct result of the person’s status as a victim.
  2. Construction. —  Nothing in this section shall be construed to limit or abrogate any other affirmative defense to a prosecution under this Article available to a person by statute or common law.

History. 2018-75, s. 2(a); 2018-145, s. 11(a).

Editor’s Note.

Session Laws 2018-75, s. 2(b), as amended by Session Laws 2018-145, s. 11(a), made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2018-75, s. 2(a), enacted this section as G.S. 14-43.15 . It has been renumbered as G.S. 14-43.16 at the direction of the Revisor of Statutes.

Session Laws 2018-75, s. 9, is a severability clause.

§ 14-43.17. Victim confidentiality; penalty for unlawful disclosure.

  1. Confidentiality Requirement. —  Except as otherwise provided in subsections (b) and (d) of this section, the name, address, or other information that reasonably could be expected to lead directly to the identity of any of the following, is confidential and shall not be considered a public record as that term is defined in G.S. 132-1 :
    1. A victim.
    2. An alleged victim.
    3. An immediate family member of a victim or alleged victim. For purposes of this subdivision, the term “immediate family member” means a spouse, child, sibling, parent, grandparent, grandchild, or the spouse of an immediate family member. This term includes stepparents, stepchildren, stepsiblings, and adoptive relationships.
  2. Exceptions. —  Information subject to the confidentiality requirement set forth in subsection (a) of this section may be disclosed only for the following purposes:
    1. For use in a law enforcement investigation or criminal prosecution.
    2. To ensure the provision of medical care, housing, or family services or benefits to any of the persons listed in subdivisions (1) through (3) of subsection (a) of this section.
    3. Upon written request by any of the persons listed in subdivisions (1) through (3) of subsection (a) of this section.
    4. As required by federal law or court order.
  3. Penalty. —  A person who knowingly violates subsection (a) of this section is guilty of a Class 3 misdemeanor.
  4. Court Records. —  This section does not apply to records that have been made part of a court file in the custody of the General Court of Justice.

History. 2018-75, s. 3(a); 2018-145, ss. 11(b), 23.

Editor’s Note.

Session Laws 2018-75, s. 3(b), as amended by Session Laws 2018-145, s. 11(b), made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2018-75, s. 3(a), enacted this section as G.S. 14-43.16 . It has been renumbered as G.S. 14-43.17 at the direction of the Revisor of Statutes.

Session Laws 2018-75, s. 9, is a severability clause.

Effect of Amendments.

Session Laws 2018-145, s. 23, effective December 27, 2018, in subsection (a), substituted “subsections (b) and (d)” for “subsection (b)” preceding “of this section”; and added subsection (d).

§ 14-43.18. Civil cause of action; damages and attorneys’ fees; limitation.

  1. Cause of Action. —  An individual who is a victim may bring a civil action against a person who violates this Article or a person who knowingly benefits financially or by receiving anything of value from participation in a venture which that person knew or should have known violates this Article.
  2. Relief and Damages. —  The victim may seek and the court may award any or all of the following types of relief:
    1. An injunction to enjoin continued violation of this Article.
    2. Compensatory damages, which includes the following:
      1. The greater of (i) the gross income or value to the defendant of the victim’s labor; or (ii) value of the victim’s labor as guaranteed under the Minimum Wage Law and overtime provisions of the Fair Labor Standards Act (FLSA).
      2. Any costs reasonably incurred by the victim for medical care, psychological treatment, temporary housing, transportation, and any other services designed to assist a victim in recovering from any injuries or loss resulting from a violation of this Article.
    3. General damages for noneconomic losses.
  3. Attorneys’ Fees. —  The court may award to the plaintiff and assess against the defendant the reasonable costs and expenses, including attorneys’ fees, of the plaintiff in bringing an action pursuant to this section. If the court determines that the plaintiff’s action is frivolous, it may award to the defendant and assess against the plaintiff the reasonable costs and expenses, including attorneys’ fees, of the defendant in defending the action brought pursuant to this section.
  4. Stay Pending Criminal Action. —  Any civil action filed under this section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the plaintiff is the victim. The term “criminal action” includes investigation and prosecution and is pending until final adjudication in the trial court.
  5. Statute of Limitations. —  No action may be maintained under subsection (a) of this section unless it is commenced no later than either of the following:
    1. Ten years after the cause of action arose.
    2. Ten years after the victim reaches 18 years of age if the victim was a minor at the time of the alleged offense.
  6. Jury Trial. —  Parties to a civil action brought pursuant to this section shall have the right to a jury trial as provided under G.S. 1A-1 , Rules of Civil Procedure.

History. 2019-158, s. 3(a).

Editor’s Note.

Session Laws 2019-158, s. 3(b), made this section effective July 1, 2019, and applicable to causes of action arising on or after that date.

Session Laws 2019-158, s. 7, is a severability clause.

§ 14-43.19.

Reserved for future codification purposes.

§ 14-43.20. Mandatory restitution; victim services; forfeiture.

  1. Repealed by Session Laws 2018-75, s. 4(a), effective December 1, 2018.
  2. Restitution. —  Restitution for a victim is mandatory under this Article. At a minimum, the court shall order restitution in an amount equal to the value of the victim’s labor as guaranteed under the Minimum Wage Law and overtime provisions of the Fair Labor Standards Act (FLSA). In addition, the judge may order any other amount of loss identified, including the gross income or value to the defendant of the victim’s labor or services and any costs reasonably certain to be incurred by or on behalf of the victim for medical care, psychological treatment, temporary housing, transportation, funeral services, and any other services designed to assist a victim recover from any injuries or loss resulting from an offense committed under G.S. 14-43.11 , 14-43.12, or 14-43.13.
  3. Trafficking Victim Services. —  Subject to the availability of funds, the Department of Health and Human Services may provide or fund emergency services and assistance to individuals who are victims of one or more offenses under G.S. 14-43.11 , 14-43.12, or 14-43.13.
  4. Certification. —  The Attorney General, a district attorney, or any law enforcement official shall certify in writing to the United States Department of Justice or other federal agency, such as the United States Department of Homeland Security, that an investigation or prosecution under this Article for a violation of G.S. 14-43.11 , 14-43.12, or 14-43.13 has begun and the individual who is a likely victim of one of those crimes is willing to cooperate or is cooperating with the investigation to enable the individual, if eligible under federal law, to qualify for an appropriate special immigrant visa and to access available federal benefits. Cooperation with law enforcement shall not be required of victims who are under 18 years of age. This certification shall be made available to the victim and the victim’s designated legal representative.
  5. Forfeiture. —  A person who commits a violation of G.S. 14-43.11 , 14-43.12, or 14-43.13 is subject to the property forfeiture provisions set forth in G.S. 14-2.3 .
  6. Escheat. —  If a judge finds that the victim to whom restitution is due under this Article is unavailable to claim the restitution award, then the judge shall order the restitution be made payable to the clerk of superior court in the county in which the conviction for the offense requiring restitution occurred. If the victim fails to claim the restitution award within two years of the date of the restitution order issued by the judge, the clerk shall remit the restitution proceeds to the Crime Victims Compensation Fund established pursuant to G.S. 15B-23 . Notwithstanding any provision of G.S. 15B-23 to the contrary, funds remitted to the Crime Victims Compensation Fund shall be used only to provide aid to victims who are (i) worthy and needy as determined by the Crime Victims Compensation Commission and (ii) enrolled in public institutions of higher education of this State.

History. 2013-368, s. 17; 2018-75, s. 4(a); 2018-145, s. 11(c).

Editor’s Note.

Session Laws 2018-75, s. 4(b), as amended by Session Laws 2018-145, s. 11(c), provides “G.S. 14-43.20(f), as enacted by subsection (a) of this section, becomes effective December 1, 2018, and applies to orders for restitution entered on or after that date. The remainder of this section becomes effective December 1, 2018, and applies to offenses committed on or after that date.”

Session Laws 2018-75, s. 9, is a severability clause.

Effect of Amendments.

Session Laws 2018-75, s. 4(a), as amended by Session Laws 2018-145, s. 11(c), deleted subsection (a); rewrote the last sentence of subsection (b); added a heading in subsection (e); and added subsection (f). For effective date and applicability, see editor’s note.

Article 11. Abortion and Kindred Offenses.

§ 14-44. Using drugs or instruments to destroy unborn child.

If any person shall willfully administer to any woman, either pregnant or quick with child, or prescribe for any such woman, or advise or procure any such woman to take any medicine, drug or other substance whatever, or shall use or employ any instrument or other means with intent thereby to destroy such child, he shall be punished as a Class H felon.

History. 1881, c. 351, s. 1; Code, s. 975; Rev., s. 3618; C.S., s. 4226; 1967, c. 367, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

As to instances when abortion not unlawful, see G.S. 14-45.1 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For article on federal constitutional limitations on the enforcement and administration of state abortion statutes, see 46 N.C.L. Rev. 730 (1968).

For article, “Legal Implications of Human in Vitro Fertilization for the Practicing Physician in North Carolina,” see 6 Campbell L. Rev. 5 (1984).

For note, “State v. Beale and the Killing of a Viable Fetus: An Exercise in Statutory Construction and the Potential for Legislative Reform,” see 68 N.C. L. Rev. 1144 (1990).

For note entitled, “The Pregnant Silence: Rust v. Sullivan, Abortion Rights, and Publicly Funded Speech,” see 70 N.C.L. Rev. 1623 (1992).

For article, “Person or Thing — In Search of the Legal Status of a Fetus: A Survey of North Carolina Law,” see 17 Campbell L. Rev. 169 (1995).

For article, “The Prospect of Enacting An Unborn Victims of Violence Act in North Carolina,” see 28 N.C. Cent. L.J. 127 (2006).

For article, “Criminalizing Buyers under Child Sex Trafficking Laws as a Critical Protection for Child Victims,” see 52 Wake Forest L. Rev. 435 (2017).

For article, “Doctor, Doctor, Give Me the News: First Amendment Empowers Display and Describe Requirements for Purposes of Informed Consent and Commercial Speech, ,” see 13 Elon L. Rev. 1 (2020).

CASE NOTES

Constitutional Power of State. —

See Corkey v. Edwards, 322 F. Supp. 1248 (W.D.N.C. 1971), judgment vacated, 410 U.S. 950, 93 S. Ct. 1411, 35 L. Ed. 2d 682 (1973). (for reconsideration in light of) Roe v. Wade, 1973 U.S. LEXIS 159, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 and Doe v. Bolton, 1973 U.S. LEXIS 112, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201.

This section and § 14-45 create separate and distinct offenses, the first statute being designed to protect the life of a child in ventre sa mere, and the second being primarily for the protection of the woman. State v. Jordon, 227 N.C. 579 , 42 S.E.2d 674, 1947 N.C. LEXIS 465 (1947); State v. Green, 230 N.C. 381 , 53 S.E.2d 285, 1949 N.C. LEXIS 644 (1949); State v. Hoover, 252 N.C. 133 , 113 S.E.2d 281, 1960 N.C. LEXIS 411 (1960).

Section relates to destruction of child. State v. Forte, 222 N.C. 537 , 23 S.E.2d 842, 1943 N.C. LEXIS 366 (1943).

The words “either pregnant or quick with child” contained in this section mean “pregnant with child that is quick,” since otherwise the words “or quick with child” would be merely confusing surplusage, and since the sine qua non of the offense is the intent to destroy the child in ventre sa mere, which must be quick before it has independent life. State v. Jordon, 227 N.C. 579 , 42 S.E.2d 674, 1947 N.C. LEXIS 465 (1947); State v. Green, 230 N.C. 381 , 53 S.E.2d 285, 1949 N.C. LEXIS 644 (1949). But see, State v. Slagle, 83 N.C. 630 , 1880 N.C. LEXIS 138 (1880).

Thus, evidence that defendant, with intent to produce a miscarriage, gave a certain drug to a woman within 30 days after she had conceived, is insufficient to be submitted to the jury in a prosecution under this section since in such instance the child could not be quick. State v. Jordon, 227 N.C. 579 , 42 S.E.2d 674, 1947 N.C. LEXIS 465 (1947).

Elements of Offense — Intent. —

The essential ingredient of the offense is the intent and not the noxious nature of the drug used. State v. Crews, 128 N.C. 581 , 38 S.E. 293, 1901 N.C. LEXIS 435 (1901); State v. Shaft, 166 N.C. 407 , 81 S.E. 932, 1914 N.C. LEXIS 415 (1914).

It is no defense even if defendant could show that the drug would not in fact cause a miscarriage. State v. Crews, 128 N.C. 581 , 38 S.E. 293 (1901). For the offense is committed by administering any substance with intent to procure an abortion. State v. Shaft, 166 N.C. 407 , 81 S.E. 932, 1914 N.C. LEXIS 415 (1914).

Same — Abortion or Procuring Abortion. —

It is just as much a crime to produce an abortion under the advice of and with means furnished by another, as it is to have an abortion performed by another. The gravamen of the offense is the abortion, or the procuring of the abortion, and not the manner by which it is accomplished. Parker v. Edwards, 222 N.C. 75 , 21 S.E.2d 876, 1942 N.C. LEXIS 26 (1942).

Same — Procurement or Use of Drug Not Essential. —

For a conviction under this section it is no essential to show that defendant procured the drug or that the woman used it. If defendant prescribed or advised its use with the illegal intent, that alone is sufficient. State v. Powell, 181 N.C. 515 , 106 S.E. 133, 1921 N.C. LEXIS 135 (1921).

Under this section it is not necessary to charge or prove that the accused procured the drug. State v. Crews, 128 N.C. 581 , 38 S.E. 293, 1901 N.C. LEXIS 435 (1901).

Woman Not an Accomplice. —

The woman is not, in a legal sense, an accomplice, whether or not she consents to the abortion. State v. Shaft, 166 N.C. 407 , 81 S.E. 932, 1914 N.C. LEXIS 415 (1914).

Admissibility of Evidence — Belief of Woman as to Her Pregnancy Relevant. —

In a prosecution for abortion, belief of victim on the day of alleged operation that she was pregnant is a relevant circumstance, properly proved by her own testimony. State v. Hoover, 252 N.C. 133 , 113 S.E.2d 281, 1960 N.C. LEXIS 411 (1960).

Same — Statement of Woman as to Payment of Doctor’s Fee Admissible. —

The testimony as to the statement of a woman on whom the defendant was charged with bringing on a miscarriage or abortion, in violation of the provisions of this section and G.S. 14-45 , that the defendant had paid the physician one half of the $200.00 fee he had charged for such services, uttered in the defendant’s presence, is held competent with the other evidence in this case; and whether the defendant, under the circumstances was so intoxicated that he did not understand, presented a question for the jury to determine as to whether the woman’s statement was made in the hearing as well as in the defendant’s presence, whether they were understood by him, whether he denied them or remained silent. State v. Martin, 182 N.C. 846 , 109 S.E. 74, 1921 N.C. LEXIS 353 (1921).

Same — Admission of evidence that woman took an anesthetic was not prejudicial. State v. Evans, 211 N.C. 458 , 190 S.E. 724, 1937 N.C. LEXIS 124 (1937).

Same — Evidence of Disease Facilitating Abortion Properly Excluded. —

Evidence offered by the defendant tending to show that the deceased was suffering from a disease which facilitated the abortion was not relevant to the issue involving the defendant’s guilt as charged in the indictment. There was no error in the exclusion of such evidence. State v. Evans, 211 N.C. 458 , 190 S.E. 724, 1937 N.C. LEXIS 124 (1937).

Same — Statement Made Four Months Prior to Abortion Inadmissible. —

Upon the trial of a physician for procuring an abortion, testimony of the conversation between the physician and the woman as to an abortion about four months prior to the time in controversy is irrelevant and incompetent and its admission in evidence is prejudicial to the defendant and constitutes reversible error. State v. Brown, 202 N.C. 221 , 162 S.E. 216, 1932 N.C. LEXIS 464 (1932).

Same — Prejudicial Evidence. —

In a prosecution for abortion, testimony of the woman that she went to defendant by reason of newspaper articles stating that defendant had performed abortions was held incompetent as hearsay and extremely prejudicial to defendant, entitling her to a new trial. State v. Gavin, 232 N.C. 323 , 59 S.E.2d 823, 1950 N.C. LEXIS 502 (1950).

Sufficiency of Evidence. —

Indictment and evidence that the defendant advised the prosecutrix, who was then “pregnant or quick with child,” to take a certain drug, medicine or substance with intent to destroy the child is sufficient for a conviction under this section. State v. Powell, 181 N.C. 515 , 106 S.E. 133, 1921 N.C. LEXIS 135 (1921).

Testimony of the relation between the defendant and the woman, his paying half of the doctor’s fees, and his concern as to the result, is held sufficient to sustain the verdict of guilty, taken in connection with the other evidence in the case. State v. Martin, 182 N.C. 846 , 109 S.E. 74, 1921 N.C. LEXIS 353 (1921).

Joinder of Offenses. —

Where the defendant is tried under this section and G.S. 14-45 , for producing a miscarriage or abortion of a pregnant woman, the action will not be dismissed upon the evidence if it is sufficient for a conviction upon either count. State v. Martin, 182 N.C. 846 , 109 S.E. 74, 1921 N.C. LEXIS 353 (1921); State v. Hoover, 252 N.C. 133 , 113 S.E.2d 281, 1960 N.C. LEXIS 411 (1960).

Upon the trial on an indictment charging the performance of an operation on a woman (1) quick with child, with intent to destroy the child, and (2) with intent to procure a miscarriage, there was a verdict of guilty, and upon the jury being polled, each juror stated that the verdict related to the first count, which verdict was entered, and upon retirement and further consideration of the second count, as instructed, the verdict on that count was not guilty, the defendant is not prejudiced thereby. State v. Dilliard, 223 N.C. 446 , 27 S.E.2d 85, 1943 N.C. LEXIS 296 (1943).

Variance. —

On the trial of an indictment charging the performance of an operation upon a woman “quick with child,” with intent thereby to destroy the child, where the proof tends to show the performance of an operation upon a pregnant woman, with no evidence that she was “quick with child,” there is a fatal variance and defendant’s motion for nonsuit should be allowed. State v. Forte, 222 N.C. 537 , 23 S.E.2d 842, 1943 N.C. LEXIS 366 (1943).

Where warrant charged that defendant feloniously advised a woman pregnant with child to take certain medicines with intent to destroy such child, and the evidence tended to show that this was prior to the time the child was quick, nonsuit for fatal variance should have been allowed. State v. Green, 230 N.C. 381 , 53 S.E.2d 285, 1949 N.C. LEXIS 644 (1949).

§ 14-45. Using drugs or instruments to produce miscarriage or injure pregnant woman.

If any person shall administer to any pregnant woman, or prescribe for any such woman, or advise and procure such woman to take any medicine, drug or anything whatsoever, with intent thereby to procure the miscarriage of such woman, or to injure or destroy such woman, or shall use any instrument or application for any of the above purposes, he shall be punished as a Class I felon.

History. 1881, c. 351, s. 2; Code, s. 976; Rev., s. 3619; C.S., s. 4227; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

As to instances when abortion not unlawful, see G.S. 14-45.1 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For article, “Legal Implications of Human in Vitro Fertilization for the Practicing Physician in North Carolina,” see 6 Campbell L. Rev. 5 (1984).

CASE NOTES

In General. —

This section relates to miscarriage of, or to injury to, or destruction of the woman. State v. Forte, 222 N.C. 537 , 23 S.E.2d 842, 1943 N.C. LEXIS 366 (1943).

Constitutional Power of State. —

See Corkey v. Edwards, 322 F. Supp. 1248 (W.D.N.C. 1971), judgment vacated, 410 U.S. 950, 93 S. Ct. 1411, 35 L. Ed. 2d 682 (1973). (for reconsideration in light of) Roe v. Wade, 1973 U.S. LEXIS 159, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 and Doe v. Bolton, 1973 U.S. LEXIS 112, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201.

The purpose of this section is the protection of “any pregnant woman.” State v. Hoover, 252 N.C. 133 , 113 S.E.2d 281, 1960 N.C. LEXIS 411 (1960).

This section is designed primarily for the protection of the woman. State v. Mitchner, 256 N.C. 620 , 124 S.E.2d 831, 1962 N.C. LEXIS 519 (1962).

This section and § 14-44 create separate offenses, section 14-44 being designed to protect the life of a child in ventre sa mere, and this section being primarily for the protection of the woman. State v. Jordon, 227 N.C. 579 , 42 S.E.2d 674, 1947 N.C. LEXIS 465 (1947); State v. Green, 230 N.C. 381 , 53 S.E.2d 285, 1949 N.C. LEXIS 644 (1949); State v. Hoover, 252 N.C. 133 , 113 S.E.2d 281, 1960 N.C. LEXIS 411 (1960).

Properties of Drug Irrelevant If Intent Shown. —

This section proscribes the administering of any drug with the intent to produce a miscarriage. It is the intent which is made requisite within the statute, and not the properties of the administered drug, which makes the violation of this statute a felony. State v. Lenderman, 20 N.C. App. 687, 202 S.E.2d 787, 1974 N.C. App. LEXIS 2524 , cert. denied, 285 N.C. 375 , 205 S.E.2d 100, 1974 N.C. LEXIS 994 (1974).

An actual miscarriage is not a necessary element to prove violation of this section. State v. Hoover, 252 N.C. 133 , 113 S.E.2d 281, 1960 N.C. LEXIS 411 (1960); State v. Mitchner, 256 N.C. 620 , 124 S.E.2d 831, 1962 N.C. LEXIS 519 (1962).

But proof of pregnancy is essential. State v. Hoover, 252 N.C. 133 , 113 S.E.2d 281, 1960 N.C. LEXIS 411 (1960); State v. Mitchner, 256 N.C. 620 , 124 S.E.2d 831, 1962 N.C. LEXIS 519 (1962).

This section does not require that the woman be quick with child and for that reason provides for a lesser punishment than G.S. 14-44 . State v. Hoover, 252 N.C. 133 , 113 S.E.2d 281, 1960 N.C. LEXIS 411 (1960).

A woman may be pregnant within the meaning of this section though the fetus has not quickened. State v. Mitchner, 256 N.C. 620 , 124 S.E.2d 831, 1962 N.C. LEXIS 519 (1962).

But see G.S. 14-45.1 permitting abortion during first 20 weeks of pregnancy.

When Death Results from Abortion, It Is Culpable Homicide. —

When death results from an abortion or attempted abortion of a pregnant woman, when not necessary to save the life of the woman or that of the unborn child or to protect the health of the woman, it is a culpable homicide, even though done at the woman’s request. State v. Mitchner, 256 N.C. 620 , 124 S.E.2d 831, 1962 N.C. LEXIS 519 (1962).

Evidence of Previous Abortions. —

Where defendant’s defense to a charge of criminal abortion is that the operation was necessary to save the life of the mother, evidence that defendant had committed previous abortions is competent to show animus; but where defendant denies he performed the operation charged, evidence of previous abortions committed by him is incompetent. State v. Choate, 228 N.C. 491 , 46 S.E.2d 476, 1948 N.C. LEXIS 274 (1948).

Expert Medical Testimony. —

In a prosecution for abortion, testimony of a medical expert that a certain described treatment of a pregnant woman might cause an abortion is competent. State v. Brooks, 267 N.C. 427 , 148 S.E.2d 263, 1966 N.C. LEXIS 1062 (1966).

It was not error for the trial court to exclude testimony to the effect that pills, taken as directed, would not cause an abortion and would have no effect upon the prosecuting witness, where there was no evidence in the record that defendant was aware the drug was ineffective as a means to induce a miscarriage, and that defendant thereby lacked the intent required in this section. State v. Lenderman, 20 N.C. App. 687, 202 S.E.2d 787, 1974 N.C. App. LEXIS 2524 , cert. denied, 285 N.C. 375 , 205 S.E.2d 100, 1974 N.C. LEXIS 994 (1974).

Evidence Sufficient. —

In a prosecution for aiding and abetting in an abortion, it was held that the evidence was sufficient to take the case to the jury. State v. Manning, 225 N.C. 41 , 33 S.E.2d 239, 1945 N.C. LEXIS 253 (1945); State v. Choate, 228 N.C. 491 , 46 S.E.2d 476, 1948 N.C. LEXIS 274 (1948).

§ 14-45.1. When abortion not unlawful.

  1. Notwithstanding any of the provisions of G.S. 14-44 and 14-45, it shall not be unlawful, during the first 20 weeks of a woman’s pregnancy, to advise, procure, or cause a miscarriage or abortion when the procedure is performed by a qualified physician licensed to practice medicine in North Carolina in a hospital or clinic certified by the Department of Health and Human Services to be a suitable facility for the performance of abortions. (a1) The Department of Health and Human Services shall annually inspect any clinic, including ambulatory surgical facilities, where abortions are performed. The Department of Health and Human Services shall publish on the Department’s Web site and on the State Web site established under G.S. 90-21.84 the results and findings of all inspections conducted on or after January 1, 2013, of clinics, including ambulatory surgical facilities, where abortions are performed, including any statement of deficiencies and any notice of administrative action resulting from the inspection. No person who is less than 18 years of age shall be employed at any clinic, including ambulatory surgical facilities, where abortions are performed. The requirements of this subsection shall not apply to a hospital required to be licensed under Chapter 131E of the General Statutes.
  2. Notwithstanding any of the provisions of G.S. 14-44 and 14-45, it shall not be unlawful, after the twentieth week of a woman’s pregnancy, to advise, procure or cause a miscarriage or abortion when the procedure is performed by a qualified physician licensed to practice medicine in North Carolina in a hospital licensed by the Department of Health and Human Services, if there is a medical emergency as defined by G.S. 90-21.81(5). (b1) A qualified physician who advises, procures, or causes a miscarriage or abortion after the sixteenth week of a woman’s pregnancy shall record all of the following: the method used by the qualified physician to determine the probable gestational age of the unborn child at the time the procedure is to be performed; the results of the methodology, including the measurements of the unborn child; and an ultrasound image of the unborn child that depicts the measurements. The qualified physician shall provide this information, including the ultrasound image, to the Department of Health and Human Services pursuant to G.S. 14-45.1(c).A qualified physician who procures or causes a miscarriage or abortion after the twentieth week of a woman’s pregnancy shall record the findings and analysis on which the qualified physician based the determination that there existed a medical emergency as defined by G.S. 90-21.81(5) and shall provide that information to the Department of Health and Human Services pursuant to G.S. 14-45.1(c). Materials generated by the physician or provided by the physician to the Department of Health and Human Services pursuant to this section shall not be public records under G.S. 132-1 .The information provided under this subsection shall be for statistical purposes only, and the confidentiality of the patient and the physician shall be protected. It is the duty of the qualified physician to submit information to the Department of Health and Human Services that omits identifying information of the patient and complies with Health Insurance Portability and Accountability Act of 1996 (HIPAA).
  3. The Department of Health and Human Services shall prescribe and collect on an annual basis, from hospitals or clinics, including ambulatory surgical facilities, where abortions are performed, statistical summary reports concerning the medical and demographic characteristics of the abortions provided for in this section, including the information described in subsection (b1) of this section as it shall deem to be in the public interest. Hospitals or clinics where abortions are performed shall be responsible for providing these statistical summary reports to the Department of Health and Human Services. The reports shall be for statistical purposes only and the confidentiality of the patient relationship shall be protected. Materials generated by the physician or provided by the physician to the Department of Health and Human Services pursuant to this section shall not be public records under G.S. 132-1 .
  4. The requirements of G.S. 130A-114 are not applicable to abortions performed pursuant to this section.
  5. No physician, nurse, or any other health care provider who shall state an objection to abortion on moral, ethical, or religious grounds shall be required to perform or participate in medical procedures which result in an abortion. The refusal of a physician, nurse, or health care provider to perform or participate in these medical procedures shall not be a basis for damages for the refusal, or for any disciplinary or any other recriminatory action against the physician, nurse, or health care provider. For purposes of this section, the phrase “health care provider” shall have the same meaning as defined under G.S. 90-410(1).
  6. Nothing in this section shall require a hospital, other health care institution, or other health care provider to perform an abortion or to provide abortion services.
  7. For purposes of this section, “qualified physician” means (i) a physician who possesses, or is eligible to possess, board certification in obstetrics or gynecology, (ii) a physician who possesses sufficient training based on established medical standards in safe abortion care, abortion complications, and miscarriage management, or (iii) a physician who performs an abortion in a medical emergency as defined by G.S. 90-21.81(5).

History. 1967, c. 367, s. 2; 1971, c. 383, ss. 1, 11/2; 1973, c. 139; c. 476, s. 128; c. 711; 1997-443, s. 11A.118(a); 2013-366, s. 1(a), (b); 2015-62, s. 7(a).

Editor’s Note.

Session Laws 1967, c. 367, s. 2, designated the above section as G.S. 14-46 . Since there was already a G.S. 14-46 in the General Statutes, the section added by the 1967 act has been designated G.S. 14-45.1 herein.

Pursuant to Session Laws 1973, c. 476, ss. 128 and 152, “Department of Human Resources” has been substituted for “North Carolina Medical Care Commission” in subsections (a) and (b) and for “State Board of Health” in subsection (c) of the section as rewritten by Session Laws 1973, c. 711.

Session Laws 2015-62, s. 7(d), made subsections (b1) and (c) of this section, as enacted by Session Laws 2015-62, s. 7(a), applicable to abortions performed or attempted on or after January 1, 2016. The remainder of the amendments to this section by Session Laws 2015-62, s. 7(a), are applicable to abortions performed or attempted on or after October 1, 2015.

Effect of Amendments.

Session Laws 2013-366, s. 1(a), (b) effective August 28, 2013, in subsection (e), in the first sentence, inserted “or any other health care provider,” in the second sentence, added “nurse, or health care provider” twice, added the last sentence, and made minor stylistic changes; and in subsection (f), deleted “or” following “hospital,” added “or other health care provider,” and made related grammatical changes.

Session Laws 2015-62, s. 7(a), inserted “qualified” preceding “physician” in subsection (a); added subsections (a1), (b1), and (g); in subsection (b), inserted “qualified” preceding “physician” and substituted “a medical emergency as defined by G.S. 90-21.81(5)” for “substantial risk that continuance of the pregnancy would threaten the life or gravely impair the health of the woman”; in subsection (c), inserted “including ambulatory surgical facilities,” deleted “such representative samplings of” preceding “statistical summary,” and inserted “including the information described in subsection (b1) of this section” in the first sentence, and added the last sentence; substituted “G.S. 13A-114” for “G.S. 130-43” in subsection (d); and in subsection (e), substituted “No physician,” for “Nothing in this section shall require a physician licensed to practice medicine in North Carolina, any,” and inserted “grounds shall be required.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For comment on this section, see 46 N.C.L. Rev. 585 (1968).

For comment on a constitutional right to abortion, see 49 N.C.L. Rev. 487 (1971).

For note on equal protection and residence requirements, see 49 N.C.L. Rev. 753 (1971).

For article, “Legal Implications of Human in Vitro Fertilization for the Practicing Physician in North Carolina,” see 6 Campbell L. Rev. 5 (1984).

For article, “Webster v. Reproductive Health Services: A Path to Constitutional Equilibrium,” see 12 Campbell L. Rev. 181 (1990).

For article, “The Potential for Enacting Parental Consent Legislation in North Carolina: Moving Beyond the Clash of Absolutes” see 26 Wake Forest L. Rev. 433 (1991).

For a note on minors’ rights vis-a-vis abortion, see 1999 Duke L.J. 297.

For article discussing the rise and decline of North Carolina Abortion Fund, see 22 Campbell L. Rev. 119 (1999).

For comment, “Compensating Post-Conception Prenatal Medical Malpractice While Respecting Life: A Recommendation to North Carolina Legislators,” see 29 Campbell L. Rev. 761 (2007).

For note, “Conscience Clauses and the Right of Refusal: The War Between Legal and Ethical Responsibility,” see 55 Wake Forest L. Rev. 717 (2020).

CASE NOTES

Constitutionality. —

G.S. 14-45.1(a) was unconstitutional under U.S. Const. amend. XIV because it operated as a total ban, not a regulation, that clearly encompassed at least some pre-viability abortions, and state law could not impose an outright ban that prevented a woman from choosing to have an abortion before viability. Bryant v. Woodall, 363 F. Supp. 3d 611, 2019 U.S. Dist. LEXIS 49101 (M.D.N.C. 2019), aff'd, 1 F.4th 280, 2021 U.S. App. LEXIS 17972 (4th Cir. 2021).

Burden of Proof. —

The legislature did not intend to reverse the presumption of innocence, and the burden of proof in a prosecution is on the State to show that an abortion did not come within the exemptions of this section. Corkey v. Edwards, 322 F. Supp. 1248 (W.D.N.C. 1971), judgment vacated, 410 U.S. 950, 93 S. Ct. 1411, 35 L. Ed. 2d 682 (1973). (for reconsideration in light of) Roe v. Wade, 1973 U.S. LEXIS 159, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 and Doe v. Bolton, 1973 U.S. LEXIS 112, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201.

Claims for relief for wrongful life and for wrongful birth are not cognizable at law in this jurisdiction. Azzolino v. Dingfelder, 315 N.C. 103 , 337 S.E.2d 528, 1985 N.C. LEXIS 2169 (1985), cert. denied, 479 U.S. 835, 107 S. Ct. 131, 93 L. Ed. 2d 75, 1986 U.S. LEXIS 3625 (1986).

To the extent the legislature has spoken to date, it has tended to discourage holding physicians or nurses liable for not acting in a manner which will result in abortion. Azzolino v. Dingfelder, 315 N.C. 103 , 337 S.E.2d 528, 1985 N.C. LEXIS 2169 (1985), cert. denied, 479 U.S. 835, 107 S. Ct. 131, 93 L. Ed. 2d 75, 1986 U.S. LEXIS 3625 (1986).

Defendants owed no duty to child who had not yet been conceived regarding genetic counseling rendered to her parents, and they could not be found liable to her on a wrongful life theory. Gallagher v. Duke Univ., 638 F. Supp. 979, 1986 U.S. Dist. LEXIS 23456 (M.D.N.C. 1986), aff'd in part, vacated in part, 852 F.2d 773, 1988 U.S. App. LEXIS 10022 (4th Cir. 1988).

A claim for “wrongful conception” or “wrongful pregnancy” is recognizable in this State. Jackson v. Bumgardner, 318 N.C. 172 , 347 S.E.2d 743, 1986 N.C. LEXIS 2569 (1986).

There is no rational basis for distinguishing between temporary and permanent methods of birth control for the purpose of determining whether a complaint states a cause of action for medical malpractice resulting in wrongful conception. Jackson v. Bumgardner, 318 N.C. 172 , 347 S.E.2d 743, 1986 N.C. LEXIS 2569 (1986).

Negligently Inducing Conception. —

A cause of action exists in North Carolina when a health care provider negligently provides counseling and information which induces a couple to conceive a defective child. Gallagher v. Duke Univ., 638 F. Supp. 979, 1986 U.S. Dist. LEXIS 23456 (M.D.N.C. 1986), aff'd in part, vacated in part, 852 F.2d 773, 1988 U.S. App. LEXIS 10022 (4th Cir. 1988).

Damages for “Wrongful Conception”. —

In an action for “wrongful conception”, plaintiff wife may recover damages for the expenses associated with her pregnancy, but plaintiffs may not recover for the costs of rearing their child. Jackson v. Bumgardner, 318 N.C. 172 , 347 S.E.2d 743, 1986 N.C. LEXIS 2569 (1986).

Trespass at Abortion Clinic — Necessity Defense Unavailable. —

The defense of “necessity” is unavailable to individuals who commit the crime of trespass in an effort to “save the lives” of fetuses from abortion. State v. Thomas, 103 N.C. App. 264, 405 S.E.2d 214, 1991 N.C. App. LEXIS 636 (1991).

The North Carolina General Assembly has made a “clear and deliberate choice” regarding the competing values at issue by choosing to make those abortions performed in accordance with the provisions of this section lawful. Since there was no evidence at the defendants’ trial that the clinic was performing or about to perform illegal abortions, it is implicit that the “evil” which the defendants sought to avoid by blocking the clinic’s entrances was nonexistent. The nonexistence of an “evil” to avoid foreclosed the possibility of a defense based upon necessity. State v. Thomas, 103 N.C. App. 264, 405 S.E.2d 214, 1991 N.C. App. LEXIS 636 (1991).

OPINIONS OF ATTORNEY GENERAL

Abortion Cannot Be Performed After Twenty Weeks for Sole Reason that Fetus Is Abnormal. — Even if a woman at 22 weeks of gestation is found to have a genetically abnormal fetus which will be severely mentally retarded and/or will not survive beyond the first year of life, an abortion cannot be performed in North Carolina for these reasons alone upon request of the woman. — See opinion of Attorney General to Mr. Lewis H. Nelson, M.D., Assistant Professor, Bowman Gray School of Medicine, 48 N.C. Op. Att'y Gen. 136 (1979).

§ 14-46. Concealing birth of child.

If any person shall, by secretly burying or otherwise disposing of the dead body of a newborn child, endeavor to conceal the birth of such child, such person shall be punished as a Class I felon. Any person aiding, counseling or abetting any other person in concealing the birth of a child in violation of this statute shall be guilty of a Class 1 misdemeanor.

History. 21 Jac. I, c. 27; 43 Geo. III, c. 58, s. 3; 9 Geo. IV, c. 31, s. 14; 1818, c. 985, P.R; R.C., c. 34, s. 28; 1883, c. 390; Code, s. 1004; Rev., s. 3623; C.S., s. 4228; 1977, c. 577; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 24, 1148; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For article, “Webster v. Reproductive Health Services: A Path to Constitutional Equilibrium,” see 12 Campbell L. Rev. 181 (1990).

CASE NOTES

History. —

Under the section as it stood after the amendment of 1818, the offense was the concealing of the death of a being on whom murder could have been committed. If, therefore, the child was stillborn, concealment would be no offense. The burden of showing that fact would, however, be on the defendant. State v. Joiner, 11 N.C. 350 , 1826 N.C. LEXIS 14 (1826).

A former conviction for concealing the birth of a child is no defense to an indictment for the murder of such child. State v. Morgan, 95 N.C. 641 , 1886 N.C. LEXIS 322 (1886).

Evidence Insufficient for Directed Verdict. —

Under the provisions of this section making it a felony for any person to conceal the birth of a newborn child by secretly burying or otherwise disposing of its dead body, it is reversible error for the trial judge to direct a verdict of guilty upon evidence tending to show that the defendant found the dead body of the infant in a state of decomposition and therefore buried it, and had informed the authorities thereof and directed them where he had buried it, it being required of the State to rebut the common-law presumption of innocence by establishing the defendant’s guilt beyond a reasonable doubt. State v. Arrowood, 187 N.C. 715 , 122 S.E. 759, 1924 N.C. LEXIS 385 (1924).

§ 14-46.1. Prohibit sale of the remains of an unborn child resulting from an abortion or miscarriage.

  1. No person shall sell the remains of an unborn child resulting from an abortion or a miscarriage or any aborted or miscarried material.
  2. For purposes of this section, the term “sell” shall mean the transfer from one person to another in exchange for any consideration whatsoever. The term shall not include payment for incineration, burial, cremation, or any services performed pursuant to G.S. 130A-131.10(f) .
  3. A person convicted of a violation of this section is guilty of a Class I felony.

History. 2015-265, s. 2.

Editor’s Note.

Session Laws 2015-265, s. 4, made this section effective October 1, 2015, and applicable to offenses committed on or after that date.

Article 12. Libel and Slander.

§ 14-47. Communicating libelous matter to newspapers.

If any person shall state, deliver or transmit by any means whatever, to the manager, editor, publisher or reporter of any newspaper or periodical for publication therein any false and libelous statement concerning any person or corporation, and thereby secure the publication of the same, he shall be guilty of a Class 2 misdemeanor.

History. 1901, c. 557, ss. 2, 3; Rev., s. 3635; C.S., s. 4229; 1969, c. 1224, s. 1; 1993, c. 539, s. 25; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to the truth of allegations in indictment for libel as a defense, see G.S. 15-168 .

As to libel by a newspaper, see G.S. 99-1 and 99-2.

Legal Periodicals.

For comment on responsibility of newspapermen, see 4 N.C.L. Rev. 27 (1926).

§ 14-48. [Repealed]

Repealed by Session Laws 1975, c. 402.

Article 13. Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material.

§ 14-49. Malicious use of explosive or incendiary; punishment.

  1. Any person who willfully and maliciously injures another by the use of any explosive or incendiary device or material is guilty of a Class D felony.
  2. Any person who willfully and maliciously damages any real or personal property of any kind or nature belonging to another by the use of any explosive or incendiary device or material is guilty of a Class G felony.

    (b1) Any person who willfully and maliciously damages, aids, counsels, or procures the damaging of any church, chapel, synagogue, mosque, masjid, or other building of worship by the use of any explosive or incendiary device or material is guilty of a Class E felony.

    (b2) Any person who willfully and maliciously damages, aids, counsels, or procures the damaging of the State Capitol, the Legislative Building, the Justice Building, or any building owned or occupied by the State or any of its agencies, institutions, or subdivisions or by any county, incorporated city or town, or other governmental entity by the use of any explosive or incendiary device or material is guilty of a Class E felony.

  3. Repealed by Session Laws 1993, c. 539, s. 1149, effective October 1, 1994.

History. 1923, c. 80, s. 1; C.S., s. 4231(a); 1951, c. 1126, s. 1; 1969, c. 869, s. 6; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1149; 1994, Ex. Sess., c. 24, s. 14(c); 1995 (Reg. Sess., 1996), c. 751, s. 1; 2003-392, s. 3(c).

Cross References.

For structured sentencing provisions, 1994, see G.S. 15A-1340.10 et seq.

CASE NOTES

The offense created by this section is malicious injury or damage to property, real or personal, by the use of high explosives. State v. Conrad, 275 N.C. 342 , 168 S.E.2d 39, 1969 N.C. LEXIS 404 (1969); State v. Cannady, 18 N.C. App. 213, 196 S.E.2d 617, 1973 N.C. App. LEXIS 1818 (1973).

The word “malicious” as used in this section connotes a feeling of animosity, hatred or ill will toward the owner, the possessor, or the occupant. State v. Conrad, 275 N.C. 342 , 168 S.E.2d 39, 1969 N.C. LEXIS 404 (1969); State v. Cannady, 18 N.C. App. 213, 196 S.E.2d 617, 1973 N.C. App. LEXIS 1818 (1973).

“Malicious” means more than intending wrong, it connotes actual ill will or resentment toward the owner or possessor of the property and is an element of preconceived revenge. State v. Cannady, 18 N.C. App. 213, 196 S.E.2d 617, 1973 N.C. App. LEXIS 1818 (1973).

Count Charging Violation of This Section as Embracing a Charge Under G.S. 14-127 . —

See State v. Bindyke, 288 N.C. 608 , 220 S.E.2d 521, 1975 N.C. LEXIS 1033 (1975).

“Feloniously” Not Substitute for “Maliciously” in Indictment Under This Section. —

Use of the word “feloniously” in an indictment based on subsection (b) charging defendants with damaging real and personal property of another by use of an explosive was not a sufficient substitute for the word “maliciously” as used in the statute, since the word “feloniously” implies that the act charged to have been done proceeded from an evil heart and wicked purpose but does not allege the necessary element of actual ill will, hatred or animosity of the accused toward the person whose property was injured. State v. Cannady, 18 N.C. App. 213, 196 S.E.2d 617, 1973 N.C. App. LEXIS 1818 (1973).

Without the element of malicious damage to property being alleged in the indictment, regardless of the method with which the damage was caused, the defendants were not apprised of the crime charged and the bill of indictment was defective. State v. Cannady, 18 N.C. App. 213, 196 S.E.2d 617, 1973 N.C. App. LEXIS 1818 (1973).

Indictment Should Contain Identifying Description of Property. —

Since no distinction whatever is made between real and personal property in this section an indictment under this section should contain an identifying description of the property which the defendant damaged or attempted to damage by the use of the explosive. State v. Conrad, 275 N.C. 342 , 168 S.E.2d 39, 1969 N.C. LEXIS 404 (1969).

Where the Jury Can Consider Lesser Offense. —

On an indictment under G.S. 14-49.1 , if proof of occupancy fails, the jury can consider the lesser included offense of malicious injury to unoccupied property under this section. State v. Hanford, 16 N.C. App. 353, 191 S.E.2d 910, 1972 N.C. App. LEXIS 1703 , cert. denied, 282 N.C. 428 , 192 S.E.2d 841, 1972 N.C. LEXIS 987 (1972).

Sufficiency of Evidence. —

In a prosecution for willful and malicious injury to person and property by means of dynamite, and conspiracy to injure a person by means of dynamite, where defendant knew the victim was an undercover narcotics agent, an informer saw defendant and his co-conspirators in possession of dynamite while they were beside the victim’s car with its hood raised, defendant stated in coming away from the car that “it would happen in the morning,” and the victim was injured the next morning by an explosion when he attempted to start his car, the evidence for the State was sufficient to withstand defendant’s motion for nonsuit. State v. Sellers, 289 N.C. 268 , 221 S.E.2d 264, 1976 N.C. LEXIS 1250 (1976).

Conviction Upheld. —

Because there was some probability that defendant planned to use gasoline thrown on his victim as an explosive or incendiary device, the conviction for violating subsection (a) was upheld. State v. Cockerham, 129 N.C. App. 831, 497 S.E.2d 831 (1998).

Verdict in Consolidated Trial of Separate Indictments. —

See same catchline in note under G.S. 14-49.1 .

§ 14-49.1. Malicious damage of occupied property by use of explosive or incendiary; punishment.

Any person who willfully and maliciously damages any real or personal property of any kind or nature, being at the time occupied by another, by the use of any explosive or incendiary device or material is guilty of a felony punishable as a Class D felony.

History. 1967, c. 342; 1969, c. 869, s. 6; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1150; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

The offense created by this section is malicious injury or damage to property, real or personal, by the use of high explosives. State v. Little, 286 N.C. 185 , 209 S.E.2d 749, 1974 N.C. LEXIS 1193 (1974).

A measurable amount of damage must be shown to bring an action within the purview of this section. State v. Bennett, 132 N.C. App. 187, 510 S.E.2d 698, 1999 N.C. App. LEXIS 91 (1999).

The word “malicious,” as used in this section, connotes a feeling of animosity, hatred or ill will toward the owner, the possessor or the occupant. State v. Little, 286 N.C. 185 , 209 S.E.2d 749, 1974 N.C. LEXIS 1193 (1974).

Evidence showing defendant’s past disagreements and confrontations with a home’s occupant, and defendant’s conduct before a fire in which the home was burned sufficiently supported a reasonable inference of malice. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41, 2002 N.C. App. LEXIS 1276 (2002), aff'd in part, 357 N.C. 235 , 581 S.E.2d 57, 2003 N.C. LEXIS 608 (2003).

Where the trial court’s jury instruction referred to both express and implied malice and was in accordance with the pattern jury instructions for arson and homicide, the trial court’s instruction was proper. State v. Sexton, 357 N.C. 235 , 581 S.E.2d 57, 2003 N.C. LEXIS 608 (2003).

Description in the indictment of the property damaged as a “1974 Ford Torino owned by the North Carolina State Bureau of Investigation, being at the time occupied by another, Albert Stout, Jr.,” was sufficient to inform defendant with certainty as to the crime that he had allegedly committed. State v. Sanders, 288 N.C. 285 , 218 S.E.2d 352, 1975 N.C. LEXIS 976 (1975), cert. denied, 423 U.S. 1091, 96 S. Ct. 886, 47 L. Ed. 2d 102, 1976 U.S. LEXIS 1279 (1976).

Indictment Should Include Description of Any Other Property Injured. —

An indictment drawn under this section should include not only the description of the occupied property and the name of the occupant but any other property injured or attempted to be injured by the explosion so that if proof of occupancy fails, the jury could consider whether the defendant is guilty under G.S. 14-49 of the lesser included offense of malicious injury to unoccupied property. State v. Conrad, 275 N.C. 342 , 168 S.E.2d 39, 1969 N.C. LEXIS 404 (1969); State v. Hanford, 16 N.C. App. 353, 191 S.E.2d 910, 1972 N.C. App. LEXIS 1703 , cert. denied, 282 N.C. 428 , 192 S.E.2d 841, 1972 N.C. LEXIS 987 (1972).

Where the Jury Can Consider Lesser Offense. —

On an indictment under this section, if proof of occupancy fails, the jury can consider the lesser included offense of malicious injury to unoccupied property under G.S. 14-49 . State v. Hanford, 16 N.C. App. 353, 191 S.E.2d 910, 1972 N.C. App. LEXIS 1703 , cert. denied, 282 N.C. 428 , 192 S.E.2d 841, 1972 N.C. LEXIS 987 (1972).

Sufficiency of Evidence. —

In a prosecution for willful and malicious injury to person and property by means of dynamite, and conspiracy to injure a person by means of dynamite, where defendant knew the victim was an undercover narcotics agent, an informer saw defendant and his co-conspirators in possession of dynamite while they were beside the victim’s car with its hood raised, defendant stated in coming away from the car that “it would happen in the morning,” and the victim was injured the next morning by an explosion when he attempted to start his car, the evidence for the State was sufficient to withstand defendant’s motion for nonsuit. State v. Sellers, 289 N.C. 268 , 221 S.E.2d 264, 1976 N.C. LEXIS 1250 (1976).

Evidence showing defendant’s confrontation with a home’s occupants the evening before the home burned, observations of defendant staring at the home, defendant running from the home after the fire started, defendant’s flight when accused of starting the fire, cuts on defendant’s arm after breaking glass was heard immediately before the fire started, and the presence of fuel containers in defendant’s home sufficiently proved his malicious damage of the home by an incendiary device. State v. Sexton, 153 N.C. App. 641, 571 S.E.2d 41, 2002 N.C. App. LEXIS 1276 (2002), aff'd in part, 357 N.C. 235 , 581 S.E.2d 57, 2003 N.C. LEXIS 608 (2003).

No Measurable Damage Shown. —

Evidence that the defendant started a fire in front of his jail cell that left a scorched spot on the concrete floor, and that the spot was barely visible after being stripped and waxed over, did not support a conviction under this section, since no measurable damage resulted. State v. Bennett, 132 N.C. App. 187, 510 S.E.2d 698, 1999 N.C. App. LEXIS 91 (1999).

Verdict in Consolidated Trial of Separate Indictments. —

In consolidated trial of separate indictments charging the same defendant with malicious damage to an occupied dwelling and malicious damage to an automobile, where the evidence discloses but one explosion and the jury returns a verdict finding defendant guilty of malicious damage to the occupied dwelling, a further jury verdict finding defendant guilty of malicious damage to the automobile should be treated as surplusage, since the verdict of dynamiting the occupied dwelling contains the maximum charge under G.S. 14-49 as amended by this section. State v. Conrad, 275 N.C. 342 , 168 S.E.2d 39, 1969 N.C. LEXIS 404 (1969).

§ 14-50. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 71(4).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-50.1. Explosive or incendiary device or material defined.

As used in this Article, “explosive or incendiary device or material” means nitroglycerine, dynamite, gunpowder, other high explosive, incendiary bomb or grenade, other destructive incendiary device, or any other destructive incendiary or explosive device, compound, or formulation; any instrument or substance capable of being used for destructive explosive or incendiary purposes against persons or property, when the circumstances indicate some probability that such instrument or substance will be so used; or any explosive or incendiary part or ingredient in any instrument or substance included above, when the circumstances indicate some probability that such part or ingredient will be so used.

History. 1969, c. 869, s. 6.

§§ 14-50.2 through 14-50.14.

Reserved for future codification purposes.

Article 13A. North Carolina Criminal Gang Suppression Act.

§ 14-50.15. Short title.

This Article shall be known and may be cited as the “North Carolina Criminal Gang Suppression Act.”

History. 2008-214, s. 3; 2017-194, s. 3.

Cross References.

As to North Carolina Criminal Gang Nuisance Abatement Act, see G.S. 14-50.41 et seq.

Editor’s Note.

Session Laws 2017-194, s. 2, substituted “Criminal Gang” for “Street Gang” in the Article 13A heading effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2017-194, s. 20, made the amendment to this section by Session Laws 2017-194, s. 3, which substituted “Criminal Gang” for “Street Gang,” effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 3, substituted “Criminal Gang” for “Street Gang.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Revisiting Eve’s Law: Suggestions for Improving the North Carolina Anti-Gang Statute,” see 88 N.C.L. Rev. 1995 (2010).

§ 14-50.16. [Repealed]

Repealed by Session Laws 2017-194, s. 1, effective December 1, 2017 and applicable to offenses committed on or after that date.

History. 2008-214, s. 3; repealed by 2017-194, s. 1, effective December 1, 2017.

Editor’s Note.

Former G.S. 14-50.16 pertained to pattern of criminal street gang activity.

§ 14-50.16A. Criminal gang activity.

Definitions. — The following definitions apply in this Article:

  1. Criminal gang. — Any ongoing organization, association, or group of three or more persons, whether formal or informal, that (i) has as one of its primary activities the commission of criminal or delinquent acts and (ii) shares a common name, identification, signs, symbols, tattoos, graffiti, attire, or other distinguishing characteristics, including common activities, customs, or behaviors. The term shall not include three or more persons associated in fact, whether formal or informal, who are not engaged in criminal gang activity.
  2. Criminal gang activity. — The commission of, attempted commission of, or solicitation, coercion, or intimidation of another person to commit (i) any offense under Article 5 of Chapter 90 of the General Statutes or (ii) any offense under Chapter 14 of the General Statutes except Article 9, 22A, 40, 46, or 59 thereof, and further excepting G.S. 14-82 , 14-145, 14-183, 14-184, 14-186, 14-190.9, 14-247, 14-248, or 14-313 thereof, and either of the following conditions is met:
    1. The offense is committed with the intent to benefit, promote, or further the interests of a criminal gang or for the purposes of increasing a person’s own standing or position within a criminal gang.
    2. The participants in the offense are identified as criminal gang members acting individually or collectively to further any criminal purpose of a criminal gang.
  3. Criminal gang leader or organizer. — Any criminal gang member who acts in any position of management with regard to the criminal gang and who meets two or more of the following criteria:
    1. Exercises decision-making authority over matters regarding a criminal gang.
    2. Participates in the direction, planning, organizing, or commission of criminal gang activity.
    3. Recruits other gang members.
    4. Receives a larger portion of the proceeds of criminal gang activity.
    5. Exercises control and authority over other criminal gang members.
  4. Criminal gang member. — Any person who meets three or more of the following criteria:
    1. The person admits to being a member of a criminal gang.
    2. The person is identified as a criminal gang member by a reliable source, including a parent or a guardian.
    3. The person has been previously involved in criminal gang activity.
    4. The person has adopted symbols, hand signs, or graffiti associated with a criminal gang.
    5. The person has adopted the display of colors or the style of dress associated with a criminal gang.
    6. The person is in possession of or linked to a criminal gang by physical evidence, including photographs, ledgers, rosters, written or electronic communications, or membership documents.
    7. The person has tattoos or markings associated with a criminal gang.
    8. The person has adopted language or terminology associated with a criminal gang.
    9. The person appears in any form of social media to promote a criminal gang.

History. 2017-194, s. 4.

Editor’s Note.

Session Laws 2017-194, s. 20, made this section effective December 1, 2017, and applicable to offenses committed on or after that date.

CASE NOTES

Appeal from Preliminary Injunction Prohibiting Activity. —

Defendant’s appeal from a preliminary injunction restraining the defendant from engaging in criminal street gang activity, as defined in G.S. 14-50.16(c) (repealed), was premature and therefore subject to dismissal; defendant did not argue any substantial right that would be irrevocably lost if the preliminary injunction was not immediately reviewed. State ex rel. City of Charlotte v. Hidden Valley Kings, 234 N.C. App. 394, 759 S.E.2d 693, 2014 N.C. App. LEXIS 615 (2014).

§ 14-50.17. Soliciting; encouraging participation.

  1. It is unlawful for any person to cause, encourage, solicit, or coerce a person 16 years of age or older to participate in criminal gang activity.
  2. A violation of this section is a Class H felony.

History. 2008-214, s. 3; 2017-194, s. 7.

Editor’s Note.

Session Laws 2017-194, s. 20, made the amendment to subsection (a) of this section by Session Laws 2017-194, s. 7, which substituted “criminal gang activity” for “criminal street gang activity,” effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 7, substituted “criminal gang activity” for “criminal street gang activity” in subsection (a). For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Revisiting Eve’s Law: Suggestions for Improving the North Carolina Anti-Gang Statute,” see 88 N.C.L. Rev. 1995 (2010).

§ 14-50.18. Soliciting; encouraging participation; minor.

  1. It is unlawful for any person to cause, encourage, solicit, or coerce a person under 16 years of age to participate in criminal gang activity.
  2. A violation of this section is a Class F felony.
  3. Nothing in this section shall preclude a person who commits a violation of this section from criminal culpability for the underlying offense committed by the minor under any other provision of law.

History. 2008-214, s. 3; 2017-194, s. 8.

Editor’s Note.

Session Laws 2017-194, s. 20, made the amendment to subsection (a) of this section by Session Laws 2017-194, s. 8, which substituted “criminal gang activity” for “criminal street gang activity,” effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 8, substituted “criminal gang activity” for “criminal street gang activity” in subsection (a). For effective date and applicability, see editor’s note.

§ 14-50.19. Intimidation to deter from gang withdrawal.

  1. It is unlawful for any person to communicate a threat of injury to a person, or to damage the property of another, with the intent to deter a person from assisting another to withdraw from membership in a criminal gang.

    (a1) It is unlawful for any person to injure a person with the intent to deter a person from assisting another to withdraw from membership in a criminal gang.

  2. A violation of subsection (a) of this section is a Class G felony. A violation of subsection (a1) of this section is a Class F felony.

History. 2008-214, s. 3; 2017-194, s. 9.

Editor’s Note.

Session Laws 2017-194, s. 20, made the amendment to this section by Session Laws 2017-194, s. 9, which substituted “Intimidation” for “Threats” in the section heading; substituted “criminal gang” for “criminal street gang” in subsection (a); added subsection (a1); and rewrote subsection (b), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 9, substituted “Intimidation” for “Threats” in the section heading; substituted “criminal gang” for “criminal street gang” in subsection (a); added subsection (a1); and rewrote subsection (b), which read: “A violation of this section is a Class H felony.” For effective date and applicability, see editor’s note.

§ 14-50.20. Punishment or retaliation for gang withdrawal.

  1. It is unlawful for any person to communicate a threat of injury to a person, or to damage the property of another, as punishment or retaliation against a person for having withdrawn from a criminal gang.

    (a1) It is unlawful for any person to injure a person as punishment or retaliation against a person for having withdrawn from a criminal gang.

  2. A violation of subsection (a) of this section is a Class G felony. A violation of subsection (a1) of this section is a Class F felony.

History. 2008-214, s. 3; 2017-194, s. 10.

Editor’s Note.

Session Laws 2017-194, s. 20, made the amendment to this section by Session Laws 2017-194, s. 10, which substituted “Punishment or retaliation for gang withdrawal” for “Threats of punishment or retaliation” in the section heading; substituted “criminal gang” for “criminal street gang” in subsection (a); added subsection (a1); and rewrote subsection (b), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 10, substituted “Punishment or retaliation for gang withdrawal” for “Threats of punishment or retaliation” in the section heading; substituted “criminal gang” for “criminal street gang” in subsection (a); added subsection (a1); and rewrote subsection (b), which read: “A violation of this section is a Class H felony.” For effective date and applicability, see editor’s note.

§ 14-50.21. Separate offense.

Any offense committed in violation of G.S. 14-50.17 through G.S. 14-50.20 shall be considered a separate offense.

History. 2008-214, s. 3; 2019-177, s. 4(a).

Effect of Amendments.

Session Laws 2019-177, s. 4(a), effective July 26, 2019, substituted “G.S. 14-50.17” for “G.S. 14-50.16.”

§ 14-50.22. Enhanced offense for misdemeanor criminal gang activity.

A person age 15 or older who is convicted of a misdemeanor offense that is committed for the benefit of, at the direction of, or in association with, any criminal gang is guilty of an offense that is one class higher than the offense committed. A Class A1 misdemeanor shall be enhanced to a Class I felony under this section.

History. 2008-214, s. 3; 2017-194, s. 11.

Editor’s Note.

Session Laws 2017-194, s. 20, made the amendment to this section by Session Laws 2017-194, s. 11, which inserted “misdemeanor”’ in the section heading; and substituted “criminal gang” for “criminal street gang,” effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 11, inserted “misdemeanor” in the section heading; and substituted “criminal gang” for “criminal street gang” in the middle of the first sentence. For effective date and applicability, see editor’s note.

§ 14-50.23. Contraband, seizure, and forfeiture.

  1. All property of every kind used or intended for use in the course of, derived from, or realized through criminal gang activity is subject to the seizure and forfeiture provisions of G.S. 14-2.3 .
  2. In any action under this section, the court may enter a restraining order in connection with any interest that is subject to forfeiture.
  3. Innocent Activities. —  The provisions of this section shall not apply to property used for criminal gang activity where the owner or person who has legal possession of the property does not have actual knowledge that the property is being used for criminal gang activity.

History. 2008-214, s. 3; 2017-194, s. 12.

Editor’s Note.

Session Laws 2017-194, s. 20, made the amendment to this section by Session Laws 2017-194, s. 12, which substituted “criminal gang” for “criminal street gang” in subsections (a) and (c); and deleted “or a pattern of criminal street gang activity” following “gang activity” in subsection (a), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 12, substituted “criminal gang” for “criminal street gang” in subsections (a) and (c); and deleted “or a pattern of criminal street gang activity” following “gang activity” in subsection (a). For effective date and applicability, see editor’s note.

§ 14-50.24. [Repealed]

Repealed by Session Laws 2012-28, s. 2, effective October 1, 2012.

History. 2008-214, s. 3; repealed by 2012-28, s. 2, effective October 1, 2012.

Editor’s Note.

Former G.S. 14-50.24 pertained to the declaration of and abatement of property used by criminal street gangs as a public nuisance.

§ 14-50.25. Reports of disposition; criminal gang activity.

When a defendant is found guilty of a criminal offense, other than an offense under G.S. 14-50.17 through G.S. 14-50.20 , the presiding judge shall determine whether the offense involved criminal gang activity. If the judge so determines, then the judge shall indicate on the form reflecting the judgment that the offense involved criminal gang activity. The clerk of court shall ensure that the official record of the defendant’s conviction includes a notation of the court’s determination.

History. 2008-214, s. 3; 2017-194, s. 13; 2019-177, s. 4(b).

Editor’s Note.

Session Laws 2017-194, s. 20, made the amendment to this section by Session Laws 2017-194, s. 13, effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 13, substituted “criminal gang” for “criminal street gang” in the section heading and throughout the section. For effective date and applicability, see editor’s note.

Session Laws 2019-177, s. 4(b), effective July 26, 2019, substituted “G.S. 14-50.17” for “G.S. 14-50.16.”

CASE NOTES

No Evidence Supporting Finding of Street Gang Activity. —

Trial court abused its discretion finding that the offense involved criminal street gang activity because there was no evidence presented at trial supporting that decision. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689, 2017 N.C. App. LEXIS 452 (2017).

Judicial Error In Finding Street Gang Activity. —

Trial court’s error by finding that the offense defendant committed involved a street gang activity was a judicial error, not a clerical error, because the trial could announced in open court that it ordered gang restrictions upon the finding of gang affiliation, and the judgment reflected the judicial determination that gang activity played a part in the crime through a criminal street gang activity finding. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689, 2017 N.C. App. LEXIS 452 (2017).

CASE NOTES

No Evidence Supporting Finding of Street Gang Activity. —

Trial court abused its discretion finding that the offense involved criminal street gang activity because there was no evidence presented at trial supporting that decision. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689, 2017 N.C. App. LEXIS 452 (2017).

Judicial Error In Finding Street Gang Activity. —

Trial court’s error by finding that the offense defendant committed involved a street gang activity was a judicial error, not a clerical error, because the trial could announced in open court that it ordered gang restrictions upon the finding of gang affiliation, and the judgment reflected the judicial determination that gang activity played a part in the crime through a criminal street gang activity finding. State v. Thompson, 254 N.C. App. 220, 801 S.E.2d 689, 2017 N.C. App. LEXIS 452 (2017).

§ 14-50.26. Matters proved in criminal trial court.

A conviction of an offense defined as criminal gang activity shall preclude the defendant from contesting any factual matters determined in the criminal proceeding in any subsequent civil action or proceeding based on the same conduct.

History. 2008-214, s. 3.

§ 14-50.27. Local ordinances not preempted by State law.

Nothing in this Article shall prevent a local governing body from adopting and enforcing ordinances relating to gangs and gang violence that are consistent with this Article. Where local laws duplicate or supplement the provisions of this Article, this Article shall be construed as providing alternative remedies and not as preempting the field.

History. 2008-214, s. 3.

§ 14-50.27A. Dissemination of criminal intelligence information.

A law enforcement agency may disseminate an assessment of criminal intelligence information to the principal of a school when necessary to avoid imminent danger to the life of a student or employee of the school or to the public school property pursuant to 28 C.F.R. § 23.20. The notification may be made in person or by telephone. As used in this subsection, the term “school” means any public or private school in the State under Chapter 115C of the General Statutes.

History. 2009-93, s. 1.

Editor’s Note.

Session Laws 2009-93, s. 2, made this section effective December 1, 2009.

§ 14-50.28. Applicability to juveniles under the age of 16.

Except as provided in G.S. 14-50.22 , 14-50.29, and 14-50.30, the provisions of this Article shall not apply to juveniles under the age of 16.

History. 2008-214, s. 3.

Legal Periodicals.

For article, “Revisiting Eve’s Law: Suggestions for Improving the North Carolina Anti-Gang Statute,” see 88 N.C.L. Rev. 1995 (2010).

§ 14-50.29. Conditional discharge for first offenders under the age of 18.

  1. Whenever any person who has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state, pleads guilty to or is guilty of (i) a Class H felony under this Article or (ii) an enhanced offense under G.S. 14-50.22 , and the offense was committed before the person attained the age of 18 years, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place the defendant on probation upon such reasonable terms and conditions as the court may require.
  2. If the court, in its discretion, defers proceedings pursuant to this section, it shall place the defendant on supervised probation for not less than one year, in addition to any other conditions. Prior to taking any action to discharge and dismiss under this section, the court shall make a finding that the defendant has no previous criminal convictions. Upon fulfillment of the terms and conditions of the probation provided for in this section, the court shall discharge the defendant and dismiss the proceedings against the defendant.
  3. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this section may occur only once with respect to any person. Disposition of a case to determine discharge and dismissal under this section at the district court division of the General Court of Justice shall be final for the purpose of appeal. Upon violation of a term or condition of the probation provided for in this section, the court may enter an adjudication of guilt and proceed as otherwise provided.
  4. Upon discharge and dismissal pursuant to this section, the person may apply for an order to expunge the complete record of the proceedings resulting in the dismissal and discharge, pursuant to the procedures and requirements set forth in G.S. 15A-145.1 .
  5. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150 .

History. 2008-214, s. 3; 2009-510, s. 2; 2009-577, s. 4.

Effect of Amendments.

Session Laws 2009-510, s. 2, effective October 1, 2010, rewrote subsection (e).

Session Laws 2009-577, s. 4, effective December 1, 2009, and applicable to petitions for expunctions filed on or after that date, in subsection (a), deleted “has not yet attained the age of 18 years, and” following “Whenever any person who” near the beginning, and inserted “and the offense was committed before the person attained the age of 18 years,” near the middle; and, in subsection (d), substituted “G.S. 15A-145.1” for “G.S. 14-50.30(a)” at the end, and deleted the former second and third sentences which read: “If the court determines, after hearing, that such person was dismissed and the proceedings against the person discharged and that the person had not yet attained 18 years of age at the time of the offense, it shall enter such order. The effect of such order shall be to restore such person in the contemplation of the law to the status the person occupied before such arrest or indictment or information.”

Legal Periodicals.

For article, “Revisiting Eve’s Law: Suggestions for Improving the North Carolina Anti-Gang Statute,” see 88 N.C.L. Rev. 1995 (2010).

§ 14-50.30. Expunction of records.

Any person who has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state, may, if the offense was committed before the person attained the age of 18 years, be eligible to apply for expunction of certain offenses under this Article pursuant to G.S. 15A-145.1 .

History. 2008-214, s. 3; 2009-510, s. 3; 2009-577, s. 5; 2010-174, s. 1.

Effect of Amendments.

Session Laws 2009-510, s. 3, effective October 1, 2010, in subsection (b), added “and that the conviction be expunged from the records of the court” at the end of the first sentence, rewrote the former third and fourth sentences, which read: “The court shall also order that the said conviction be expunged from the records of the court, and direct all law enforcement agencies bearing record of the same to expunge their records of the conviction as the result of a criminal charge. The clerk shall forward a certified copy of the order to the sheriff, chief of police, or other arresting agency.”, and deleted the former last sentence which read: “The sheriff, chief, or head of such other arresting agency shall then transmit the copy of the order with a form supplied by the State Bureau of Investigation to the State Bureau of Investigation, and the State Bureau of Investigation shall forward the order to the Federal Bureau of Investigation.”

Session Laws 2009-577, s. 5, effective December 1, 2009, and applicable to petitions for expunctions filed on or after that date, rewrote the section.

Session Laws 2010-174, s. 1, effective October 1, 2010, and applicable to petitions for expunctions filed on or after that date, deleted “information and that the conviction be expunged from the records of the court. agencies the Department of Correction, the Division of Motor Vehicles, and any other State or local government agencies identified by the petitioner as conviction petitioner’s shall notify State and local agencies of the court’s order as provided in G.S. 15A-150 .”

Legal Periodicals.

For article, “Revisiting Eve’s Law: Suggestions for Improving the North Carolina Anti-Gang Statute,” see 88 N.C.L. Rev. 1995 (2010).

§§ 14-50.31 through 14-50.40.

Reserved for future codification purposes.

Article 13B. North Carolina Criminal Gang Nuisance Abatement Act.

§ 14-50.41. Short title.

This Article shall be known and may be cited as the “North Carolina Criminal Gang Nuisance Abatement Act.”

History. 2012-28, s. 1; 2018-142, s. 1.

Cross References.

As to North Carolina Gang Suppression Act, see G.S. 14-50.15 et seq.

Editor’s Note.

Session Laws 2012-28, s. 3, made this Article effective October 1, 2012, and applicable to offenses committed and abatement actions commenced on or after that date.

Session Laws 2012-28, s. 1, enacted this section as G.S. 14-50.31 . It has been renumbered as this section at the direction of the Revisor of Statutes.

Session Laws 2017-194, s. 14 substituted “Criminal Gang” for “Street Gang” in the Article 13B heading effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2018-142, s. 1, effective December 14, 2018, rewrote the section.

§ 14-50.42. Real property used by criminal gangs declared a public nuisance: abatement.

  1. Public Nuisance. —  Any real property that is erected, established, maintained, owned, leased, or used by any criminal gang for the purpose of conducting criminal gang activity, as defined in G.S. 14-50.16 A(2), shall constitute a public nuisance and may be abated as provided by and subject to the provisions of Article 1 of Chapter 19 of the General Statutes.Proof that criminal gang activity by a criminal gang member is regularly committed at any real property or proof that the real property is regularly used for engaging in criminal gang activity by a criminal gang member is prima facie evidence that the owner or person who has legal possession of the real property knowingly permitted the act unless the owner or person who has legal possession of the real property is making or has made a good-faith attempt to terminate the criminal gang activity or remove criminal gang members from the property through legal means, including trespass or summary ejectment. For purposes of this section, the term “regularly” means at least five times in a period of not more than 12 months.
  2. Innocent Activities. —  The provisions of this section shall not apply to real property used for criminal gang activity where any of the following conditions are met:
    1. The owner or person who has legal possession of the real property does not have actual knowledge that the real property is being used for criminal gang activity.
    2. The owner or person who has legal possession of the real property is being coerced into allowing the property to be used for criminal gang activity.
    3. The owner or person who has legal possession of the real property is making or has made a good-faith attempt to terminate the criminal gang activity or remove criminal gang members from the property through legal means, including trespass or summary ejectment.For purposes of this subsection, evidence that the defendant knew, or by the exercise of due diligence should have known, of the criminal gang activity constitutes proof of actual knowledge.

History. 2008-214, s. 3; 2012-28, ss. 1, 2; 2017-194, s. 15.

Editor’s Note.

Session Laws 2012-28, s. 1, enacted this section as G.S. 14-50.32. It has been renumbered as this section at the direction of the Revisor of Statutes.

Session Laws 2012-28, s. 2, effective October 1, 2012, and applicable to offenses committed and abatement actions commenced on or after that date, repealed former G.S. 14-50.24 , pertaining to the declaration of and abatement of property used by criminal street gangs as a public nuisance. The text of G.S. 14-50.24 was substantially similar to this section, and its historical citation has been added here.

Session Laws 2017-194, s. 20, made the amendment to this section by Session Laws 2017-194, s. 15, which substituted “criminal gangs” or variants for “criminal street gangs” or variants in section heading and throughout the section; in subsection (a), substituted “G.S. 14-50.16A(2)” for “G.S. 14- 50.16(c)” and added the second paragraph; and rewrote subsection (b), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-194, s. 15, substituted “criminal gangs” or variants for “criminal street gangs” or variants in section heading and throughout the section; in subsection (a), substituted “G.S. 14-50.16A(2)” for “G.S. 14-50.16(c)” and added the second paragraph; and rewrote subsection (b). For effective date and applicability, see editor’s note.

§ 14-50.43. Criminal gangs declared a public nuisance.

  1. A criminal gang, as defined in G.S. 14-50.16 A(a), that regularly engages in criminal gang activity, as defined in G.S. 14-50.16 A(2), constitutes a public nuisance. For the purposes of this section, the term “regularly” means at least five times in a period of not more than 12 months.
  2. Any person who regularly associates with others to engage in criminal gang activity, as defined in G.S. 14-50.16 A(2), may be made a defendant in a suit, brought pursuant to Chapter 19 of the General Statutes, to abate any public nuisance resulting from criminal gang activity.
  3. If the court finds that a public nuisance exists under this section, the court may enter an order enjoining the defendant in the suit from engaging in criminal gang activities and impose other reasonable requirements to prevent the defendant or a gang from engaging in future criminal gang activities.
  4. An order entered under this section shall expire three years after entry unless extended by the court for good cause established by the plaintiff after a hearing. The order may be modified, rescinded, or vacated at any time prior to its expiration date upon the motion of any party if it appears to the court that one or more of the defendants is no longer engaging in criminal gang activities.

History. 2012-28, s. 1; 2015-91, s. 4; 2017-194, s. 16.

Editor’s Note.

Session Laws 2012-28, s. 1, enacted this section as G.S. 14-50.33. It has been renumbered as this section at the direction of the Revisor of Statutes.

Session Laws 2017-194, s. 20, made the amendment to this section by Session Laws 2017-194, s. 16, which substituted “Criminal gangs” or variants for “Street gangs” or variants in the section heading and throughout the section; substituted “G.S. 14-50.16A(2)” for “G.S. 14-50.16(c)” in subsections (a) and (b); in subsection (a), substituted “G.S. 14-50.16A(a)” for “G.S. 14-50.16(b)” and substituted “activity” for “activities”; and substituted “three years” for “one year” in the first sentence of subsection (d), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2015-91, s. 4, effective June 19, 2015, divided subsection (d) into two sentences by substituting “after entry unless extended by the court for good cause established by the plaintiff after a hearing. The order” for “after entry; however the order.”

Session Laws 2017-194, s. 16, substituted “Criminal gangs” or variants for “Street gangs” or variants in the section heading and throughout the section; substituted “G.S. 14-50.16A(2)” for “G.S. 14-50.16(c)” in subsections (a) and (b); in subsection (a), substituted “G.S. 14-50.16A(a)” for “G.S. 14-50.16(b)” and substituted “activity” for “activities”; and substituted “three years” for “one year” in the first sentence of subsection (d). For effective date and applicability, see editor’s note.

Subchapter IV. Offenses Against the Habitation and Other Buildings.

Article 14. Burglary and Other Housebreakings.

§ 14-51. First and second degree burglary.

There shall be two degrees in the crime of burglary as defined at the common law. If the crime be committed in a dwelling house, or in a room used as a sleeping apartment in any building, and any person is in the actual occupation of any part of said dwelling house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first degree. If such crime be committed in a dwelling house or sleeping apartment not actually occupied by anyone at the time of the commission of the crime, or if it be committed in any house within the curtilage of a dwelling house or in any building not a dwelling house, but in which is a room used as a sleeping apartment and not actually occupied as such at the time of the commission of the crime, it shall be burglary in the second degree. For the purposes of defining the crime of burglary, larceny shall be deemed a felony without regard to the value of the property in question.

History. 1889, c. 434, s. 1; Rev., s. 3331; C.S., s. 4232; 1969, c. 543, s. 1.

Cross References.

As to accessories, see G.S. 14-5.2 et seq.

As to breaking into or entering jails with intent to kill or injure prisoners therein, see G.S. 14-221 .

Legal Periodicals.

For note on burglary in North Carolina, see 35 N.C.L. Rev. 98 (1956).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

CASE NOTES

Analysis

I.General Consideration

Purpose of this section is to protect the habitations of men, where they repose and sleep, from meditated harm. State v. Surles, 230 N.C. 272 , 52 S.E.2d 880, 1949 N.C. LEXIS 614 (1949).

The purpose of the law in the offense of first-degree burglary was and is to protect the habitations of men, where they repose and sleep, from meditated harm. State v. Beaver, 291 N.C. 137 , 229 S.E.2d 179, 1976 N.C. LEXIS 940 (1976).

Attempt. —

Burglary is defined in North Carolina by the common law and this section, as the breaking and entering of the dwelling house or sleeping apartment of another in the nighttime with intent to commit a felony therein, whether such intent be executed or not. An attempt to commit a crime is an act done with intent to commit that crime, carried beyond mere preparation to commit it, but falling short of its actual commission. State v. Goodman, 71 N.C. App. 343, 322 S.E.2d 408, 1984 N.C. App. LEXIS 3863 (1984).

Deadly Weapon as Aggravating Factor. —

In a prosecution for first degree burglary, where the defendant broke into and entered a motel room by pointing a gun at the victim’s head and driving him into the room, wherein he committed armed robbery, the trial court erred in sentencing him by considering as a factor in aggravation the use of a deadly weapon. If the evidence of the deadly weapon was removed, the State would have failed to prove three elements of the burglary: breaking, entering, and intent to commit a felony. State v. Edwards, 75 N.C. App. 588, 331 S.E.2d 183, 1985 N.C. App. LEXIS 3692 (1985).

For case upholding burglary conviction on a theory of acting in concert, where defendant was involved in a common scheme or plan to “rough up” victims, see State v. Ruffin, 90 N.C. App. 712, 370 S.E.2d 279, 1988 N.C. App. LEXIS 609 (1988).

Steps on Appeal. —

While convictions that result in a judgment of death are automatically appealable to the Supreme Court of North Carolina, all other convictions are properly appealed to the Court of Appeals pursuant to G.S. 7A-27 and N.C. R. App. P. 4(d), and while neither party filed a motion to bypass the Court of Appeals as to defendant’s non-capital conviction for burglary, when he appealed his conviction for murder and his death sentence, the Supreme Court of North Carolina, on its own initiative, and consistently with N.C. R. App. P. 2, considered defendant’s assignments of error that concerned his burglary conviction under G.S. 14-51 because the issue also related to one of his arguments regarding an aggravating circumstance. State v. Elliott, 360 N.C. 400 , 628 S.E.2d 735, 2006 N.C. LEXIS 46 (2006), cert. denied, 549 U.S. 1000, 127 S. Ct. 505, 166 L. Ed. 2d 378, 2006 U.S. LEXIS 8127 (2006), writ denied, 364 N.C. 437 , 702 S.E.2d 498, 2010 N.C. LEXIS 762 (2010).

II.Elements of Offense
A.In General

Elements. —

The crime of burglary at common law was composed of five distinct elements, which were: (1) the breaking; (2) the entering; (3) that the breaking and entry be into a mansion house; (4) that the breaking and entering were in the nighttime, and (5) that the breaking and entering were with the intent to commit a felony. State v. Whit, 49 N.C. 349 , 1857 N.C. LEXIS 94 (1857).

Burglary is a common-law offense, the elements of which are the breaking and entering during the nighttime of a dwelling or sleeping apartment with intent to commit a felony therein and whether the building is occupied at the time affects only the degree. State v. Mumford, 227 N.C. 132 , 41 S.E.2d 201, 1947 N.C. LEXIS 356 (1947); State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510, 1969 N.C. App. LEXIS 1552 (1969).

Burglary, whether in the first degree or in the second degree, is the breaking and entering of a dwelling house of another in the nighttime with the intent to commit a felony therein. State v. Cooper, 288 N.C. 496 , 219 S.E.2d 45, 1975 N.C. LEXIS 1015 (1975).

To warrant a conviction for burglary the State’s evidence must show that there was a breaking and entering during the nighttime of a dwelling or sleeping apartment with intent to commit a felony therein. State v. Wilson, 289 N.C. 531 , 223 S.E.2d 311, 1976 N.C. LEXIS 1329 (1976); State v. Garrison, 294 N.C. 270 , 240 S.E.2d 377, 1978 N.C. LEXIS 1231 (1978); State v. Jones, 294 N.C. 642 , 243 S.E.2d 118, 1978 N.C. LEXIS 1294 (1978).

Burglary is a common-law offense. It consists of the felonious breaking and entering of the dwelling house or sleeping apartment of another in the nighttime with the intent to commit a felony therein, whether such intent be executed or not. State v. Beaver, 291 N.C. 137 , 229 S.E.2d 179, 1976 N.C. LEXIS 940 (1976); State v. Goodman, 71 N.C. App. 343, 322 S.E.2d 408, 1984 N.C. App. LEXIS 3863 (1984).

Common-law burglary is defined as the breaking and entering of a dwelling house of another in the nighttime with the intent to commit a felony therein. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Because the location of the offense is not an element of first-degree burglary, the variance as to the location of the house in question between the proof at trial and defendant’s indictment did not constitute grounds to arrest the judgment. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275, 1988 N.C. App. LEXIS 638 (1988).

Common Law Changed. —

Burglary, as defined at common law, was a capital offense, i.e., the breaking into and entering of the “mansion or dwelling house of another in the nighttime, with an intent to commit a felony therein,” whether the intent was executed after the burglarious act or not. This has been changed by this section dividing the crime into two degrees, first and second, with certain designated differences between them, with different punishment prescribed for each. State v. Allen, 186 N.C. 302 , 119 S.E. 504, 1923 N.C. LEXIS 236 (1923); State v. Morris, 215 N.C. 552 , 2 S.E.2d 554, 1939 N.C. LEXIS 307 (1939).

First and Second Degree Burglary Distinguished. —

If the burglary occurred — i.e., the breaking and entry occurred — while the dwelling house was actually occupied, that is, while some person other than the intruder was in the house, the crime is burglary in the first degree. If the house was then unoccupied, however momentarily, and whether known to the intruder or not, the offense is burglary in the second degree. Otherwise, the elements of the two offenses are identical. State v. Tippett, 270 N.C. 588 , 155 S.E.2d 269, 1967 N.C. LEXIS 1391 (1967).

The bill of indictment returned by the grand jury charged all of the elements of burglary in the first degree. Consequently, it necessarily charged all of the elements of burglary in the second degree plus the additional allegation that the dwelling house in question was actually occupied at the time of the alleged breaking and entry by the defendant. This further element of actual occupancy at the time of the breaking and entering is the only distinction between the two degrees of burglary. State v. Allen, 279 N.C. 115 , 181 S.E.2d 453, 1971 N.C. LEXIS 756 (1971).

If the burglarized dwelling is occupied, it is burglary in the first degree; if unoccupied, it is burglary in the second degree. State v. Frank, 284 N.C. 137 , 200 S.E.2d 169, 1973 N.C. LEXIS 811 (1973); State v. Wood, 286 N.C. 248 , 210 S.E.2d 52, 1974 N.C. LEXIS 1223 (1974); State v. Wilson, 289 N.C. 531 , 223 S.E.2d 311, 1976 N.C. LEXIS 1329 (1976).

By this section the offense of burglary is divided into two degrees, first and second. The distinction between the two degrees depends upon the actual occupancy of the dwelling house or sleeping apartment at the time of the commission of the crime. State v. Beaver, 291 N.C. 137 , 229 S.E.2d 179, 1976 N.C. LEXIS 940 (1976).

If the intrusion is into a place where people are present, then burglary in the first degree has been committed. If the intrusion is into a place where it is likely that the repose of one of the household would be disturbed if one were present (but is not), then burglary in the second degree has been committed. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

The sole distinction between the two degrees of burglary is the element of actual occupancy of the dwelling house or sleeping apartment at the time of the breaking and entering. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979).

Value of Goods Stolen Immaterial. —

A person who burglariously broke and entered a dwelling at nighttime while the same was occupied was guilty of burglary in the first degree, and the fact that the value of the goods stolen from the dwelling was less than $20.00 was no defense to the charge of burglary in the first degree, since the provision of G.S. 14-72 , dividing larceny into two degrees, by its terms had no application to burglary. State v. Richardson, 216 N.C. 304 , 4 S.E.2d 852, 1939 N.C. LEXIS 152 (1939).

B.First Degree

Elements. —

Burglary in the first degree consists of the intent, which must be executed, of breaking and entering the presently occupied dwelling house or sleeping apartment of another, in the nighttime, with the further concurrent intent, which may be executed or not, then and there to commit therein some crime which is in law a felony. This particular, or ulterior, intent to commit therein some designated felony must be proved, in addition to the more general one, in order to make out the offense. State v. Thorpe, 274 N.C. 457 , 164 S.E.2d 171, 1968 N.C. LEXIS 800 (1968); State v. Accor, 277 N.C. 65 , 175 S.E.2d 583, 1970 N.C. LEXIS 508 (1970); State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979); State v. Noland, 312 N.C. 1 , 320 S.E.2d 642, 1984 N.C. LEXIS 1780 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 173 (1985).

The elements of burglary in the first degree are: (1) the breaking (2) and entering (3) in the nighttime (4) with the intent to commit a felony (5) into a dwelling house or a room used as a sleeping apartment in any house or sleeping apartment (6) which is actually occupied at the time of the offense. State v. Davis, 282 N.C. 107 , 191 S.E.2d 664, 1972 N.C. LEXIS 892 (1972).

The constituent elements of burglary in the first degree are: (1) the breaking (2) and entering (3) in the nighttime (4) into a dwelling house or a room used as a sleeping apartment (5) which is actually occupied at the time of the offense (6) with the intent to commit a felony therein. State v. Wells, 290 N.C. 485 , 226 S.E.2d 325, 1976 N.C. LEXIS 1090 (1976); State v. Simpson, 303 N.C. 439 , 279 S.E.2d 542, 1981 N.C. LEXIS 1180 (1981); State v. Meadows, 306 N.C. 683 , 295 S.E.2d 394, 1982 N.C. LEXIS 1544 (1982); State v. Watts, 76 N.C. App. 656, 334 S.E.2d 68, 1985 N.C. App. LEXIS 4472 (1985); State v. Ledford, 315 N.C. 599 , 340 S.E.2d 309, 1986 N.C. LEXIS 1896 (1986).

Burglary in the first degree is the breaking and entering during the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony therein. State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980); State v. Bell, 285 N.C. 746 , 208 S.E.2d 506, 1974 N.C. LEXIS 1134 (1974); State v. Rinck, 303 N.C. 551 , 280 S.E.2d 912, 1981 N.C. LEXIS 1197 (1981); State v. Smith, 311 N.C. 145 , 316 S.E.2d 75, 1984 N.C. LEXIS 1731 (1984); State v. Brewer, 80 N.C. App. 195, 341 S.E.2d 354, 1986 N.C. App. LEXIS 2151 (1986); State v. Patton, 80 N.C. App. 302, 341 S.E.2d 744, 1986 N.C. App. LEXIS 2176 (1986).

The crime of burglary in the first degree is complete when an occupied dwelling is broken and entered in the nighttime with the intent to commit larceny therein whether or not anything was actually stolen from the house. State v. Coffey, 289 N.C. 431 , 222 S.E.2d 217, 1976 N.C. LEXIS 1296 (1976).

First-degree burglary is defined as the unlawful breaking and entering of an occupied dwelling or sleeping apartment in the nighttime with the intent to commit a felony therein. State v. Sweezy, 291 N.C. 366 , 230 S.E.2d 524, 1976 N.C. LEXIS 997 (1976).

The essential elements of first degree burglary include breaking and entering a dwelling at nighttime, with the intent to commit a felony therein. In re Mitchell, 87 N.C. App. 164, 359 S.E.2d 809, 1987 N.C. App. LEXIS 3077 (1987).

In order to support a verdict of guilty of first degree burglary, there must be evidence from which a jury could determine that the defendant broke and entered an occupied dwelling house of another at nighttime, with the intent to commit a felony therein. State v. Davis, 90 N.C. App. 185, 368 S.E.2d 52, 1988 N.C. App. LEXIS 412 (1988).

In a prosecution for first-degree burglary, the burden is on the State to prove that the defendant committed: (1) a breaking; (2) and entering; (3) at nighttime; (4) into the dwelling house, or a room used as a sleeping apartment, of another; (5) which is actually occupied at the time; and (6) with the intent to commit a felony therein. State v. Wright, 127 N.C. App. 592, 492 S.E.2d 365, 1997 N.C. App. LEXIS 1127 (1997), cert. dismissed, 374 N.C. 751 , 842 S.E.2d 598, 2020 N.C. LEXIS 528 (2020).

“Breaking” is essential element of the offense of first-degree burglary. State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980); State v. Wilson, 289 N.C. 531 , 223 S.E.2d 311, 1976 N.C. LEXIS 1329 (1976); State v. Smith, 311 N.C. 145 , 316 S.E.2d 75, 1984 N.C. LEXIS 1731 (1984).

To support charge of first degree burglary, the State must present substantial evidence that there was a breaking and entering during the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony. State v. Leonard, 74 N.C. App. 443, 328 S.E.2d 593, 1985 N.C. App. LEXIS 3499 (1985).

Proof that the offense was planned is not an essential element of burglary in the first degree. State v. Isom, 65 N.C. App. 223, 309 S.E.2d 283, 1983 N.C. App. LEXIS 3467 (1983).

Felonious Intent Element. —

The trial judge erroneously submitted second-degree murder as the intended felony for first-degree burglary; because second-degree murder does not involve the intent to kill, it cannot serve as the felonious intent element for purposes of burglary. State v. Van Jordan, 140 N.C. App. 594, 537 S.E.2d 843, 2000 N.C. App. LEXIS 1246 (2000).

Concealed Officers as Persons in Actual Occupation. —

Police officers concealed in a dwelling house with the knowledge and consent of the absent owner are persons in actual occupation within the meaning of this section; breaking and entering such a dwelling house would thus constitute burglary in the first degree. State v. Thomas, 52 N.C. App. 186, 278 S.E.2d 535, 1981 N.C. App. LEXIS 2419 (1981), cert. denied, 305 N.C. 591 , 292 S.E.2d 16, 1982 N.C. LEXIS 1532 (1982).

Marital Relationship Alone Not a Complete Defense. —

The marital relationship, in and of itself, does constitute a complete defense to the offense of burglary in the first degree. State v. Cox, 73 N.C. App. 432, 326 S.E.2d 100, 1985 N.C. App. LEXIS 3287 (1985).

In an action for first-degree burglary under the “acting in concert” principle, the defendant’s contention that the State failed to provide evidence establishing that the burglary was part of a common plan was without merit, where a plan to “rough up” the victim required either gaining entry into her house or persuading her to come outside. Clearly, breaking into her home was in pursuance of the common purpose to assault her. State v. Barnes, 91 N.C. App. 484, 372 S.E.2d 352, 1988 N.C. App. LEXIS 827 (1988), modified, 324 N.C. 539 , 380 S.E.2d 118, 1989 N.C. LEXIS 293 (1989).

Property “of Another” Requirement Met. —

The defendant committed burglary by breaking into his grandmother’s house to murder her although defendant had a key, paid rent, kept personal belongings in the house, and had recently lived there. The victim/grandmother had exclusive possession of her residence at the time the defendant broke and entered into it, she had expressly refused to allow him entry into her house, and locked the screen door to keep others, including defendant and his girlfriend, from entering. State v. Blyther, 138 N.C. App. 443, 531 S.E.2d 855, 2000 N.C. App. LEXIS 619 (2000).

Failure to Allege Occupation. —

Defendant’s first-degree burglary conviction would be reversed where the State failed to allege that dwelling house was occupied at the time of the breaking and entering and where the offense of burglary and the offense of discharging a firearm into occupied property were mutually exclusive, since defendant could not be entering the dwelling and firing “into” it from the outside at the same time. State v. Surcey, 139 N.C. App. 432, 533 S.E.2d 479, 2000 N.C. App. LEXIS 899 (2000).

Sufficient Evidence of Breaking. —

Testimony that the screen door was closed and the victim was trying to close the door when the defendant forced the defendant’s way into the home provided substantial evidence that a breaking occurred for burglary purposes. State v. Jamison, 234 N.C. App. 231, 758 S.E.2d 666, 2014 N.C. App. LEXIS 564 (2014).

Evidence Held Sufficient. —

Under the evidence, with all reasonable inferences drawn in the State’s favor, a jury could reasonably have found that defendant showed a preconceived intent to rape the prosecutrix, so as to support a charge of first degree burglary, (1) by entering motel room shortly after prosecutrix’s male companion had left, (2) by remaining in the room after he knew for certain that a woman was in it, and (3) by then closing and locking the room door before jumping on the prosecutrix, who lay in bed, and that he committed an overt act toward the commission of rape necessary for a conviction of attempted second-degree rape. The fact that the prosecutrix was more than a match for defendant, causing him to abandon any such intent and flee the room, would not absolve him from responsibility for his actions. State v. Planter, 87 N.C. App. 585, 361 S.E.2d 768, 1987 N.C. App. LEXIS 3281 (1987).

Where defendant broke into skating rink which had an apartment, struck victim on the head with a stick as he was leaving with a briefcase containing the night’s receipts and $300 which had been lying on the desk in the apartment, the State’s evidence was sufficient to support the conviction of burglary in the first degree. State v. Brandon, 120 N.C. App. 815, 463 S.E.2d 798, 1995 N.C. App. LEXIS 940 (1995).

Given that the State presented sufficient evidence showing that defendant and two other men committed a breaking and entering into the victims’ occupied residence, at night, taking a chain necklace, a PlayStation, some games, and a VCR and asking, “where is the money?” every element of a charge of first-degree burglary was shown to support the denial of a motion to dismiss. State v. Farrar, 190 N.C. App. 202, 660 S.E.2d 116, 2008 N.C. App. LEXIS 898 (2008).

Evidence Held Insufficient. —

Where a breaking and entering could have occurred any time before the sun rose, the evidence was only sufficient to raise a “suspicion or conjecture” that the breaking and entering occurred at nighttime, and the State failed to produce evidence of one element of first-degree burglary, entitling defendant to have the charge of burglary against him dismissed. However, the jury, in convicting defendant of first-degree burglary, necessarily found facts which established felonious breaking and entering. State v. Barnett, 113 N.C. App. 69, 437 S.E.2d 711, 1993 N.C. App. LEXIS 1308 (1993).

Jury Instruction at Variance with Indictment Benefitted Defendant and Was Not Prejudicial Error. —

Defendant’s first-degree burglary conviction was not improper because, although the jury instructions, which stated that the State had to prove, inter alia, that at the time of the breaking and entering, defendant intended to commit robbery with a firearm or attempted to commit robbery with a firearm, were at variance with the indictment, which alleged that defendant committed the offense by breaking and entering with the intent to commit felony larceny, the jury instructions actually benefitted defendant by adding an additional element for the State to prove, and thus there was no prejudicial error; any error in the jury charge was not prejudicial because larceny was a lesser-included offense of robbery with a dangerous weapon. State v. Farrar, 361 N.C. 675 , 651 S.E.2d 865, 2007 N.C. LEXIS 1097 (2007).

C.Second Degree

Elements. —

Second degree burglary is the breaking and entering of an unoccupied dwelling house during the nighttime with the intent to commit a felony therein. State v. Helton, 79 N.C. App. 566, 339 S.E.2d 814, 1986 N.C. App. LEXIS 2082 (1986).

The constituent elements of second-degree burglary are: (1) the breaking (2) and entering (3) in the nighttime (4) into a dwelling house or sleeping apartment (5) of another (6) with the intent to commit a felony therein. State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986).

In order to support a conviction for second degree burglary, there must be evidence from which a jury could find that defendants broke and entered a dwelling house at nighttime, with the intent to commit a felony therein. State v. Humphries, 82 N.C. App. 749, 348 S.E.2d 167, 1986 N.C. App. LEXIS 2627 (1986).

Felonious Intent. —

An essential element of second-degree burglary, as derived from the common law, is the intent of the perpetrator to commit a felony after accomplishing the breaking and entering of a dwelling house belonging to another in the nighttime. State v. Foust, 40 N.C. App. 71, 251 S.E.2d 893, 1979 N.C. App. LEXIS 2581 (1979).

Both Breaking and Entering Must Be Proven. —

Unlike felonious breaking or entering with intent to commit larceny, second degree burglary requires proof of both a breaking and an entering. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

Actual Occupancy Not an Element. —

Burglary in the second degree consists of all the elements of burglary in the first degree save the element of actual occupancy. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979).

Occupancy Is No Defense. —

If the bill of indictment, by omitting any allegation as to occupancy of the building, charged second-degree burglary only and if the evidence is sufficient to show all of the elements thereof, proof of actual occupancy of the dwelling at the time of the breaking and entering is not a defense to the charge. State v. Allen, 279 N.C. 115 , 181 S.E.2d 453, 1971 N.C. LEXIS 756 (1971).

Dwelling Need Only Be Momentarily Unoccupied. —

If the burglarized dwelling is occupied, the crime is burglary in the first degree; but, if it is unoccupied, however momentarily, and whether known to the intruder or not, the crime is burglary in the second degree. State v. Simons, 65 N.C. App. 164, 308 S.E.2d 502, 1983 N.C. App. LEXIS 3392 (1983).

Evidence Held Sufficient. —

Defendant’s admission that on the night in question he pried open the door to victim’s house and entered with the intent to steal anything of value that he could find, and that he, in fact, stole several items from the residence, coupled with the other evidence presented, provided sufficient evidence to justify submission of charge of second-degree burglary and to support the jury’s finding of guilt. State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986).

Defendant’s conduct of approaching a house from the rear and standing approximately 60 seconds in the front doorway before walking away and after defendant had talked to the homeowner about certain furniture constituted sufficient overt acts which went beyond mere preparation but fell just short of the completed offense of burglary in violation of G.S. 14-51 ; based on defendant’s conduct, the jury could infer that, when defendant was standing on the door sill, defendant was attempting to gain entry into the home and was sufficient to deny defendant’s motion to dismiss. State v. Key, 180 N.C. App. 286, 636 S.E.2d 816, 2006 N.C. App. LEXIS 2291 (2006).

Evidence Held Insufficient. —

Where evidence presented by defendants and the State indicated that each defendant believed the apartment which was entered to be the dwelling of the other’s girlfriend, each defendant presented evidence that he believed the other defendant had permission to enter the apartment, and nothing in the apartment, according to the owner, had been disturbed, there was insufficient evidence to sustain a verdict of second degree burglary. However, there was evidence from which the jury could have found defendants guilty of misdemeanor breaking or entering under G.S. 14-54(b) . State v. Humphries, 82 N.C. App. 749, 348 S.E.2d 167, 1986 N.C. App. LEXIS 2627 (1986).

III.Breaking and Entering

Breaking may be actual or constructive. State v. Wilson, 289 N.C. 531 , 223 S.E.2d 311, 1976 N.C. LEXIS 1329 (1976); State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979); State v. Edwards, 75 N.C. App. 588, 331 S.E.2d 183, 1985 N.C. App. LEXIS 3692 (1985); State v. Baynard, 79 N.C. App. 559, 339 S.E.2d 810, 1986 N.C. App. LEXIS 2099 (1986).

Constructive breaking, as distinguished from actual forcible breaking, may be classed under the following heads: (1) when entrance is obtained by threats, as if the felon threatens to set fire to the house unless the door is opened, (2) when in consequence of violence commenced, or threatened in order to obtain entrance, the owner, with a view more effectually to repel it, opens the door and sallies out, and the felon enters, (3) when entrance is obtained by procuring the servants or some inmate to remove the fastening, (4) when some process of law is fraudulently resorted to for the purpose of obtaining an entrance, (5) when some trick is resorted to induce the owner to remove the fastening and open the door, and the felon enters; as, if one knocks at the door, under pretense of business, or counterfeits the voice of a friend, and, the door being open, enters. State v. Wilson, 289 N.C. 531 , 223 S.E.2d 311, 1976 N.C. LEXIS 1329 (1976); State v. Smith, 65 N.C. App. 770, 310 S.E.2d 115, 1984 N.C. App. LEXIS 2772 , modified, 311 N.C. 145 , 316 S.E.2d 75, 1984 N.C. LEXIS 1731 (1984); State v. Smith, 311 N.C. 145 , 316 S.E.2d 75, 1984 N.C. LEXIS 1731 (1984).

The list of five types of possible constructive breakings is not exhaustive but illustrative; the list merely provides a series of examples which illustrate certain general types of fact situations that might give rise to a constructive breaking, i.e., a breaking in law. State v. Smith, 311 N.C. 145 , 316 S.E.2d 75, 1984 N.C. LEXIS 1731 (1984).

A constructive breaking in the law of burglary occurs, quite simply, when an opening is made not by the defendant but by some other person and, under the circumstances, the law regards the defendant as the author thereof. State v. Smith, 311 N.C. 145 , 316 S.E.2d 75, 1984 N.C. LEXIS 1731 (1984).

A constructive breaking may be accomplished in a number of different ways, such as by tricking the occupant into opening the door, or by threatening the occupant with a deadly weapon. State v. Edwards, 75 N.C. App. 588, 331 S.E.2d 183, 1985 N.C. App. LEXIS 3692 (1985).

A defendant commits a constructive breaking when the opening is made by a person other than the defendant, if that person is acting at the direction of, or in concert with, the defendant. State v. Helton, 79 N.C. App. 566, 339 S.E.2d 814, 1986 N.C. App. LEXIS 2082 (1986); State v. Bray, 321 N.C. 663 , 365 S.E.2d 571, 1988 N.C. LEXIS 225 (1988).

A constructive breaking occurs where entrance is obtained in consequence of violence commenced or threatened by defendant. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979).

Constructive breaking is as sufficient a breaking for the purposes of this offense as any physical removal by the defendant of a barrier to entry. State v. Isom, 65 N.C. App. 223, 309 S.E.2d 283, 1983 N.C. App. LEXIS 3467 (1983).

Constructive breaking occurs when confederate within house opens the door to admit defendant. The “confederate” or “other person” who actually creates the opening need not be an “inmate” or someone who regularly resides in the dwelling; it is enough if that person is acting at the direction, express or implied, of defendant, or is acting in concert with defendant, or both. State v. Smith, 311 N.C. 145 , 316 S.E.2d 75, 1984 N.C. LEXIS 1731 (1984).

If any force at all is employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open or closed, there is a breaking sufficient in law to constitute burglary, if the other elements of the offense are present. State v. Wilson, 289 N.C. 531 , 223 S.E.2d 311, 1976 N.C. LEXIS 1329 (1976).

A breaking in the law of burglary constitutes any act of force, however slight, employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979); State v. Noland, 312 N.C. 1 , 320 S.E.2d 642, 1984 N.C. LEXIS 1780 (1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, 1985 U.S. LEXIS 173 (1985); State v. Goodman, 71 N.C. App. 343, 322 S.E.2d 408, 1984 N.C. App. LEXIS 3863 (1984).

Unlocking Door or Opening Window. —

There is a sufficient “breaking” to sustain a charge of first-degree burglary when a person unlocks a door with a key, or opens a closed, but not fastened window. State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980).

Moving and raising of the window would be a breaking within the meaning of the law. State v. Wells, 290 N.C. 485 , 226 S.E.2d 325, 1976 N.C. LEXIS 1090 (1976).

Unlocked Door. —

The mere pushing or pulling open of an unlocked door constitutes a breaking. State v. Sweezy, 291 N.C. 366 , 230 S.E.2d 524, 1976 N.C. LEXIS 997 (1976); State v. Watts, 76 N.C. App. 656, 334 S.E.2d 68, 1985 N.C. App. LEXIS 4472 (1985).

Evidence that defendant entered through an unlocked door onto the porch of the house was sufficient to show a breaking and an entering. State v. Watts, 76 N.C. App. 656, 334 S.E.2d 68, 1985 N.C. App. LEXIS 4472 (1985).

The trial court did not need to find an aggravating factor for the breaking and entering count since the defendant was convicted of a misdemeanor which is not subject to G.S. 15A-1340.4(b). The finding of an aggravating factor for the misdemeanor conviction, therefore, was superfluous and nonprejudicial error. The extent of punishment for misdemeanors is referred to the discretion of the trial court and its sentence may not be interfered with by the appellate court, except in cases of manifest and gross abuse. State v. Clark, 107 N.C. App. 184, 419 S.E.2d 188, 1992 N.C. App. LEXIS 663 (1992).

Entry through an open window or door does not constitute a breaking. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

There was sufficient evidence that a “breaking” occurred since the victim here testified that she had screens on her windows and they were in place when she went to bed that night and since her nephew usually shut the door when he left. State v. Styles, 93 N.C. App. 596, 379 S.E.2d 255, 1989 N.C. App. LEXIS 396 (1989).

Damage to Window or Door Not Required. —

In order to show a breaking it is not required that the State offer evidence of damage to a door or window. State v. Henderson, 285 N.C. 1 , 203 S.E.2d 10, 1974 N.C. LEXIS 896 (1974), vacated in part, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205, 1976 U.S. LEXIS 2262 (1976), overruled in part, State v. McCraw, 300 N.C. 610 , 268 S.E.2d 173, 1980 N.C. LEXIS 1116 (1980).

Proof That Windows and Doors Closed Prior to Entry. —

Proof that a breaking occurred, or from which it may reasonably be inferred that the defendant broke into the dwelling, is usually accomplished by testimony showing that prior to the entry all doors and windows were closed. State v. Alexander, 18 N.C. App. 460, 197 S.E.2d 272, 1973 N.C. App. LEXIS 1902 , cert. denied, 283 N.C. 666 , 198 S.E.2d 721, 1973 N.C. LEXIS 1040 (1973), cert. denied, 284 N.C. 255 , 200 S.E.2d 655, 1973 N.C. LEXIS 845 (1973).

“Busting” Door Open. —

There was sufficient evidence of a “breaking” to support the trial court’s charge on burglary where the state’s evidence tended to show that defendant and a male accomplice gained access to deceased’s dwelling by pushing a female accomplice out of the way, “busting” the door open and rushing into the dwelling. State v. Easterling, 300 N.C. 594 , 268 S.E.2d 800, 1980 N.C. LEXIS 1113 (1980).

Breaking Occurred Although Victim “Cracked” Door Open. —

In a prosecution for first-degree burglary and second-degree rape, defendant’s entry was accomplished by a “breaking” notwithstanding the fact that the prosecuting witness “cracked” her door to see who was there. State v. Wilson, 289 N.C. 531 , 223 S.E.2d 311, 1976 N.C. LEXIS 1329 (1976).

Pushing Victim into Room as Door Opened. —

Where the evidence showed that defendant gained entry into victim’s motel room by pushing victim into the room as he opened the door, this clearly constituted a constructive breaking. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979).

Failure to Prove Both Breaking and Entering Personally Committed by Defendant. —

Where there was no evidence from which the jury reasonably could have concluded that defendant, rather than codefendant, removed window screen and pried open window, and it was just as likely that defendant crawled through window after codefendant opened it, and where the court failed to instruct the jury on acting in concert, the evidence did not permit a finding that defendant personally committed each element of the offense of second degree burglary. However, by finding defendant guilty of second degree burglary the jury necessarily found facts that would support defendant’s conviction of felonious breaking or entering. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986) (vacating conviction of second degree burglary and remanding for entry of a judgment as upon a conviction of felonious breaking or entering) .

Where the State offered no evidence to raise an inference that any force was employed to gain entry to the victim’s apartment, and the victim testified concerning the type of lock on the only door to the apartment, but never stated that the door and two windows were closed when she went to sleep, and there was no evidence of forced entry, the defendant could not properly be convicted of burglary, but in view of evidence that the defendant entered the victim’s apartment with the intent to commit an assault upon her, he could be convicted of felonious breaking or entering. State v. Eldridge, 83 N.C. App. 312, 349 S.E.2d 881, 1986 N.C. App. LEXIS 2694 (1986).

Showing of Nonconsent by Occupant. —

While consent to entry by the owner of a dwelling house constitutes a defense to burglary, in order to convict a person of burglary it is not necessary to show nonconsent by the owner when the premises are occupied by another, but only nonconsent by the occupant. State v. Watts, 76 N.C. App. 656, 334 S.E.2d 68, 1985 N.C. App. LEXIS 4472 (1985).

Inference from Possession of Stolen Articles. —

Upon proof of larceny following a breaking and entering, the defendant’s possession of the stolen articles under such circumstances will also support an inference that he committed the breaking and entering. State v. Greene, 30 N.C. App. 507, 227 S.E.2d 154, 1976 N.C. App. LEXIS 2294 (1976).

Where trial court failed to instruct the jury as to acting in concert or constructive breaking, the State was required to prove that defendant personally committed each essential element of the offense of burglary, including an actual breaking. State v. Helton, 79 N.C. App. 566, 339 S.E.2d 814, 1986 N.C. App. LEXIS 2082 (1986).

Evidence held sufficient to permit a finding that defendant and another were acting in concert to further their joint effort to evade the authorities when the other individual committed a breaking on victim’s house, and therefore, under a constructive breaking theory, there was sufficient evidence that defendant broke into the house. State v. Bray, 321 N.C. 663 , 365 S.E.2d 571, 1988 N.C. LEXIS 225 (1988).

IV.Dwelling House or Sleeping Apartment

Sleeping Apartment. —

The sleeping apartment referred to in the section is one in which a person regularly sleeps. State v. Foster, 129 N.C. 704 , 40 S.E. 209, 1901 N.C. LEXIS 130 (1901).

Store with Sleeping Quarters. —

The offense of burglary may be committed by breaking into a store if there are sleeping quarters in the store, for the sleeping there makes it a dwelling. State v. Foster, 129 N.C. 704 , 40 S.E. 209, 1901 N.C. LEXIS 130 (1901).

Tent or Booth. —

Burglary could not be committed in a tent or booth erected in a market or fair, although the owner lodged in it. State v. Jake, 60 N.C. 471 , 1864 N.C. LEXIS 44 (1864).

Sorority House Rooms. —

If entered, the rooms assigned to each sorority member, as well as the quarters solely occupied by the caretakers, would properly be considered individual dwelling houses for purposes of our burglary statute. State v. Merritt, 120 N.C. App. 732, 463 S.E.2d 590, 1995 N.C. App. LEXIS 928 (1995).

Trial court’s statement to the jury that the motel room in question was a sleeping apartment was an impermissible expression of opinion, or an assumption that a material fact had been proved within the meaning of G.S. 15A-1232 . However, since there could be no serious contention that a motel room, regularly and usually occupied by travelers for the purpose of sleeping, was not in fact a “sleeping apartment” within the meaning of this section and its predecessors, nor did defendants contest the “sleeping apartment” issue at trial, other than by their general pleas of not guilty, there was no reasonable possibility that this error contributed to defendant’s conviction or that a different result would have been obtained had the language complained of been omitted, therefore, the error was harmless. State v. Nelson, 298 N.C. 573 , 260 S.E.2d 629, 1979 N.C. LEXIS 1427 (1979), cert. denied, 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282, 1980 U.S. LEXIS 2306 (1980).

Storage room built at the back of a house behind a bedroom was “appurtenant” to the main dwelling and a robbery therefrom would constitute first-degree burglary. State v. Green, 305 N.C. 463 , 290 S.E.2d 625, 1982 N.C. LEXIS 1338 (1982).

Travel Trailer. —

An occupied travel trailer can satisfy the occupied dwelling element of first degree burglary. State v. Taylor, 109 N.C. App. 692, 428 S.E.2d 273, 1993 N.C. App. LEXIS 376 (1993).

An uninhabited, unoccupied residential condominium unit, available for rent, is a “dwelling house or sleeping apartment” as those terms are used in the definition of burglary. State v. Hobgood, 112 N.C. App. 262, 434 S.E.2d 881, 1993 N.C. App. LEXIS 1069 (1993).

Dwelling Broken into Must Be that of Another. —

Requirement that dwelling house or sleeping apartment broken into be that of someone other than defendant was an element of burglary at common law and is implicitly incorporated in this section. State v. Harold, 312 N.C. 787 , 325 S.E.2d 219, 1985 N.C. LEXIS 1499 (1985).

One cannot commit the offense of burglary by breaking into one’s own house. State v. Cox, 73 N.C. App. 432, 326 S.E.2d 100, 1985 N.C. App. LEXIS 3287 (1985).

Occupation or Possession Is Equivalent to Ownership. —

In burglary cases occupation or possession of a dwelling is equivalent to ownership, and actual ownership of the premises need not be proved. The inquiry relevant to this element of the crime is whether the premises is the dwelling of another, not whether it is owned by another. State v. Harold, 312 N.C. 787 , 325 S.E.2d 219, 1985 N.C. LEXIS 1499 (1985).

In burglary cases, occupation or possession of a dwelling or sleeping apartment is tantamount to ownership. State v. Cox, 73 N.C. App. 432, 326 S.E.2d 100, 1985 N.C. App. LEXIS 3287 (1985).

Ownership Need Not Be Alleged. —

There is no requirement that actual ownership of the occupied premises be alleged and proved. State v. Beaver, 291 N.C. 137 , 229 S.E.2d 179, 1976 N.C. LEXIS 940 (1976).

Occupation of Dwelling House by One Other Than Owner. —

A structure does not lose its status as a dwelling house because it is being occupied by someone other than the owner. State v. Watts, 76 N.C. App. 656, 334 S.E.2d 68, 1985 N.C. App. LEXIS 4472 (1985).

Where individual living in house was not paying rent and he was living there to protect it and its contents for its owners, this fact did not negate the evidence, which clearly showed that the structure was a dwelling house. State v. Watts, 76 N.C. App. 656, 334 S.E.2d 68, 1985 N.C. App. LEXIS 4472 (1985).

Owners Not Present. —

A dwelling house does not lose its character merely because its elderly owner/occupant is residing elsewhere, due to ill health. State v. Smith, 121 N.C. App. 41, 464 S.E.2d 471, 1995 N.C. App. LEXIS 962 (1995).

The character of a dwelling place does not change simply because its owners are absent for a time, especially where there are objects of value left in the homes and there are persons who maintain the homes in the owners’ absence. State v. Smith, 121 N.C. App. 41, 464 S.E.2d 471, 1995 N.C. App. LEXIS 962 (1995).

Occupant Need Not Be Asleep. —

There is no requirement that there be an individual asleep in the house which is broken into in order for burglary to be committed. Edwards v. Garrison, 529 F.2d 1374, 1975 U.S. App. LEXIS 12401 (4th Cir. 1975), cert. denied, 424 U.S. 950, 96 S. Ct. 1421, 47 L. Ed. 2d 355, 1976 U.S. LEXIS 189 (1976).

Whether House Is Occupied Is for Jury. —

The question whether a house is actually occupied at the time an intruder breaks and enters is for the jury. State v. Simons, 65 N.C. App. 164, 308 S.E.2d 502, 1983 N.C. App. LEXIS 3392 (1983).

V.Curtilage

Definition. —

The meaning of the term curtilage is a piece of ground, either inclosed or not, that is commonly used with the dwelling house. State v. Twitty, 2 N.C. 102 , 1794 N.C. LEXIS 22 (1794).

The curtilage is the land around a dwelling house upon which those outbuildings lie that are commonly used with the dwelling house. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Visual and auditory proximity of outbuildings that serve the comfort and convenience of the homeowner is still a useful theoretical measure of whether those buildings lie within or beyond the curtilage. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Shed that housed tools, garden equipment, nonperishable food, and a freezer and that was located at least 45 feet from dwelling was not within the curtilage of dwelling house for purposes of the burglary statute. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Common Areas. —

The common areas of sorority house, appurtenant to the caretaker’s private apartment, were within the curtilage and a portion of the caretaker’s “dwelling house” for purposes of the burglary statute. State v. Merritt, 120 N.C. App. 732, 463 S.E.2d 590, 1995 N.C. App. LEXIS 928 (1995).

VI.Nighttime

Nighttime. —

The law considers it to be nighttime when it is so dark that a man’s face cannot be identified except by artificial light or moonlight. With respect to burglary, there is no statutory definition of nighttime in this State. State v. Frank, 284 N.C. 137 , 200 S.E.2d 169, 1973 N.C. LEXIS 811 (1973); State v. Garrison, 294 N.C. 270 , 240 S.E.2d 377, 1978 N.C. LEXIS 1231 (1978); State v. Leonard, 74 N.C. App. 443, 328 S.E.2d 593, 1985 N.C. App. LEXIS 3499 (1985); State v. Lyszaj, 314 N.C. 256 , 333 S.E.2d 288, 1985 N.C. LEXIS 1788 (1985).

There was sufficient evidence that a break-in occurred during the nighttime to support the denial of a motion to dismiss a burglary charge under G.S. 14-51 where: (1) judicial notice under G.S. 8C-1 , N.C. R. Evid. 201(b) was taken of the time of twilight and the distance between defendant’s girlfriend’s apartment and the victim’s home; (2) defendant left his girlfriend’s apartment after 10:00 p.m. and returned by 6 a.m.; and (3) if defendant had committed the break-in after 5:47 a.m., he would not have been able to steal the items and return to the apartment by 6:00 a.m. State v. Brown, 221 N.C. App. 383, 732 S.E.2d 584, 2012 N.C. App. LEXIS 756 (2012).

Both Degrees of Offense Must Occur at Night. —

Since 1889, burglary has been divided into two degrees by this section. If the burglarized dwelling is occupied, it is burglary in the first degree; if unoccupied, it is burglary in the second degree. To constitute burglary in either degree, however, the common law required the felonious breaking and entering to occur in the nighttime, and this common law requirement is still the law in this State. State v. Jones, 294 N.C. 642 , 243 S.E.2d 118, 1978 N.C. LEXIS 1294 (1978).

Hour Need Not Be Alleged. —

Although the common law required an indictment for burglary to allege the hour the crime was committed, today it is sufficient to aver that the crime was committed in the nighttime. State v. Wood, 286 N.C. 248 , 210 S.E.2d 52, 1974 N.C. LEXIS 1223 (1974).

Since nine o’clock at night in January in this longitude is two hours or more after darkness begins, that evidence justifies the inference that the breaking and entry also occurred during the dark of night. State v. Squalls, 65 N.C. App. 599, 309 S.E.2d 558, 1983 N.C. App. LEXIS 3535 (1983).

Circumstantial Evidence as to Nighttime. —

The State is not limited to proving solely by direct evidence that the breaking and entering was accomplished in the nighttime; this essential element may be shown by proof of circumstances which convince a reasonable mind of the fact. State v. Ledford, 315 N.C. 599 , 340 S.E.2d 309, 1986 N.C. LEXIS 1896 (1986).

The defendant presented sufficient evidence entitling him to an instruction on the definition of nighttime where a question existed as to whether the crimes, including one charge pursuant to this section, were committed in the early morning after nighttime had ended. State v. McKeithan, 140 N.C. App. 422, 537 S.E.2d 526, 2000 N.C. App. LEXIS 1205 (2000).

Evidence Held Sufficient. —

Testimony of victim that it was dark in victim’s room and dark outside when men entered his bedroom, along with testimony of accomplice that when they arrived at victim’s residence, it was about 9:10 p.m., and they waited outside until he turned the light out, viewed in the light most favorable to the State, constituted substantial evidence that the unauthorized entry was during the nighttime. State v. Leonard, 74 N.C. App. 443, 328 S.E.2d 593, 1985 N.C. App. LEXIS 3499 (1985).

Testimony that the burglary did not occur until after two victims returned from the store which was after 8:00 p.m., was sufficient to allow a reasonable juror to find that the breaking and entering occurred during the nighttime and thus, the support a conviction for first-degree burglary. State v. Yarborough, 198 N.C. App. 22, 679 S.E.2d 397, 2009 N.C. App. LEXIS 1078 (2009), cert. denied, 363 N.C. 812 , 693 S.E.2d 143, 2010 N.C. LEXIS 144 (2010).

Defendant’s conviction for burglary was supported by sufficient evidence showing that the offense occurred during “nighttime” as the victim’s testimony established that the burglary occurred between 5:00 a.m. and 5:30 a.m., and defendant stipulated to a record from the U.S. Naval Observatory which showed that, on the date of the attack, the sun did not rise until 6:44 a.m., approximately one hour and 15 minutes to an hour and 45 minutes after other evidence established that the victim was attacked. N.C. v. Reavis, 207 N.C. App. 218, 700 S.E.2d 33, 2010 N.C. App. LEXIS 1860 (2010).

Insufficient Evidence of Entry. —

Trial court erred in denying the defendants’ motion to dismiss the second-degree burglary charge because the State never offered evidence that the defendants actually crossed the threshold of the home nor introduced evidence permitting a reasonable inference of such actual entry. State v. Lucas, 234 N.C. App. 247, 758 S.E.2d 672, 2014 N.C. App. LEXIS 566 (2014).

Evidence Held Insufficient. —

Where no substantial evidence existed as to the essential element that defendant perfected his breaking and entering during the nighttime, defendant’s conviction for second-degree burglary was reversed. State v. Rick, 342 N.C. 91 , 463 S.E.2d 182, 1995 N.C. LEXIS 535 (1995).

VII.Felonious Intent

Felonious intent is an essential element of burglary which the State must allege and prove, and the felonious intent proven must be the felonious intent alleged. State v. Wilson, 293 N.C. 47 , 235 S.E.2d 219, 1977 N.C. LEXIS 855 (1977).

A specific felonious intent is an essential element of burglary which must be alleged and proved and the State is held to proof of the intent alleged in the indictment, and it is error for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment. State v. Joyner, 301 N.C. 18 , 269 S.E.2d 125, 1980 N.C. LEXIS 1143 (1980).

First-degree burglary and second-degree burglary under this section and felonious breaking and entering under subsection (a) of G.S. 14-54 require, for conviction, proof of intent to commit a felony. State v. Freeman, 307 N.C. 445 , 298 S.E.2d 376, 1983 N.C. LEXIS 1092 (1983).

Felonious intent is an essential element which the State must allege and prove in order to sustain a charge of first-degree burglary. State v. Wright, 127 N.C. App. 592, 492 S.E.2d 365, 1997 N.C. App. LEXIS 1127 (1997), cert. dismissed, 374 N.C. 751 , 842 S.E.2d 598, 2020 N.C. LEXIS 528 (2020).

Since felonious intent is a state of mind and may be inferred from a defendant’s acts and conduct, it is within the province of the jury to determine whether the defendant had the requisite felonious intent at the time of the breaking and entering. State v. Wright, 127 N.C. App. 592, 492 S.E.2d 365, 1997 N.C. App. LEXIS 1127 (1997), cert. dismissed, 374 N.C. 751 , 842 S.E.2d 598, 2020 N.C. LEXIS 528 (2020).

Intent Must Exist at Time of Breaking and Entering. —

The fifth element of burglary — the intent to commit a felony — must exist at the time of the breaking and entering. Intent, being a state of mind, is difficult to prove and ordinarily is a question for the jury to decide. State v. Alexander, 18 N.C. App. 460, 197 S.E.2d 272, 1973 N.C. App. LEXIS 1902 , cert. denied, 283 N.C. 666 , 198 S.E.2d 721, 1973 N.C. LEXIS 1040 (1973), cert. denied, 284 N.C. 255 , 200 S.E.2d 655, 1973 N.C. LEXIS 845 (1973).

The offense of burglary is the breaking and entering with the requisite intent. It is complete when the building is entered or it does not occur. A breaking and an entry without the intent to commit a felony in the building is not converted into burglary by the subsequent commission therein of a felony subsequently conceived. State v. Freeman, 307 N.C. 445 , 298 S.E.2d 376, 1983 N.C. LEXIS 1092 (1983).

If at the time of a breaking and entering a person does not possess the intent to commit a felony therein, he may only properly be convicted of misdemeanor breaking or entering. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

The defendant’s intent to commit a felony must exist at the time of entry, but it is no defense that defendant abandoned the intent after entering. State v. Davis, 90 N.C. App. 185, 368 S.E.2d 52, 1988 N.C. App. LEXIS 412 (1988); State v. Robinson, 97 N.C. App. 597, 389 S.E.2d 417, 1990 N.C. App. LEXIS 384 (1990).

Actual Commission of Felony Not Required. —

Actual commission of the felony, which the indictment charges was intended by the defendant at the time of the breaking and entering, is not required in order to sustain a conviction of burglary. State v. Bell, 285 N.C. 746 , 208 S.E.2d 506, 1974 N.C. LEXIS 1134 (1974); State v. Brewer, 80 N.C. App. 195, 341 S.E.2d 354, 1986 N.C. App. LEXIS 2151 (1986).

The actual commission of the intended felony is not essential to the crime of burglary. State v. Wells, 290 N.C. 485 , 226 S.E.2d 325, 1976 N.C. LEXIS 1090 (1976); State v. Wilson, 293 N.C. 47 , 235 S.E.2d 219, 1977 N.C. LEXIS 855 (1977).

The crime of burglary is completed by the breaking and entering of the occupied dwelling of another, in the nighttime, with the requisite ulterior intent to commit the designated felony therein, even though, after entering the house, the accused abandons his intent through fear or because he is resisted. State v. Wilson, 293 N.C. 47 , 235 S.E.2d 219, 1977 N.C. LEXIS 855 (1977).

Because there was substantial evidence from which the jury could have plausibly determined that defendant entered with the intent of committing rape, but did not follow through with his plans where he ripped off the victim’s clothes and choked her prior to letting her go, the trial court correctly denied defendant’s request to dismiss the case at the close of evidence. State v. Holt, 181 N.C. App. 328, 639 S.E.2d 65, 2007 N.C. App. LEXIS 22 (2007).

Defendant Need Not Retain Intent Throughout Intrusion. —

The intent to commit a felony must exist at the time of entry, but it is not necessary that defendant retain that intent throughout the intrusion. State v. Norris, 65 N.C. App. 336, 309 S.E.2d 507, 1983 N.C. App. LEXIS 3471 (1983).

The requisite felonious intent need exist only at the time of the breaking and entering. It is no defense that the defendant later abandoned his intent because of unexpected or startling resistance or outcry. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76, 1986 N.C. App. LEXIS 2143 (1986), rev'd in part, 318 N.C. 669 , 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987).

Intent Usually Proved by Circumstances. —

Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. State v. Bell, 285 N.C. 746 , 208 S.E.2d 506, 1974 N.C. LEXIS 1134 (1974).

Commission of Felony as Proof of Intent. —

The fact that a felony was actually committed after the house was entered is not necessarily proof of the intent requisite for the crime of burglary, but is only evidence from which such intent at the time of the breaking and entering may be found. State v. Bell, 285 N.C. 746 , 208 S.E.2d 506, 1974 N.C. LEXIS 1134 (1974).

Evidence that the defendant committed larceny once inside the apartment which he broke into was some evidence of intent at the time of the break-in, although it was not positive proof. State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190, 1985 N.C. LEXIS 1557 (1985).

Usual Purpose Is Theft. —

In the absence of evidence of other intent or explanation for breaking and entering, the usual object or purpose of burglarizing a dwelling house at night is theft. State v. Hedrick, 289 N.C. 232 , 221 S.E.2d 350, 1976 N.C. LEXIS 1245 (1976); State v. Thomas, 52 N.C. App. 186, 278 S.E.2d 535, 1981 N.C. App. LEXIS 2419 (1981), cert. denied, 305 N.C. 591 , 292 S.E.2d 16, 1982 N.C. LEXIS 1532 (1982).

Fact of entry alone, in the nighttime, accompanied by flight when discovered, is some evidence of guilt, and in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent. State v. Accor, 277 N.C. 65 , 175 S.E.2d 583, 1970 N.C. LEXIS 508 (1970).

Evidence of unauthorized entry at night and flight upon discovery, in the absence of any other explanation, will support an inference of larcenous intent. The fact that the jury found that defendant did not accomplish the larceny does not negate the inference, since it is the intent at the time of the breaking and entering that is determinative. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76, 1986 N.C. App. LEXIS 2143 (1986), rev'd in part, 318 N.C. 669 , 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987).

The intelligent mind will take cognizance of the fact that people do not usually enter the dwellings of others, in the nighttime, when the inmates are asleep, with innocent intent. The most usual intent is to steal, and when there is no explanation or evidence of a different intent, the ordinary mind will infer this also. The fact of the entry alone, in the nighttime, accompanied by flight when discovered, is some evidence of guilt, and in the absence of any other proof, or evidence of other intent, and with no explanatory facts or circumstances, may warrant a reasonable inference of guilty intent. State v. Sweezy, 291 N.C. 366 , 230 S.E.2d 524, 1976 N.C. LEXIS 997 (1976).

Defendant Not Aided by Fact that Valuables Undisturbed. —

In a prosecution for first-degree burglary, where the State attempts to show intent to commit larceny, the fact that defendant did not disturb any of the valuables in the house does not aid him. State v. Hedrick, 289 N.C. 232 , 221 S.E.2d 350, 1976 N.C. LEXIS 1245 (1976).

Jury Question. —

Where the evidence is sufficient for submission to the jury upon the allegations contained in the indictment, it is for the jury to determine, under all the circumstances, whether the defendant had the ulterior criminal intent at the time of breaking and entering to commit the felony charged in the indictment. State v. Accor, 277 N.C. 65 , 175 S.E.2d 583, 1970 N.C. LEXIS 508 (1970).

The indictment having identified the intent necessary, the State is held to the proof of that intent. Of course, intent or absence of it may be inferred from the circumstances surrounding the occurrence, but the inference must be drawn by the jury. State v. Accor, 277 N.C. 65 , 175 S.E.2d 583, 1970 N.C. LEXIS 508 (1970).

Evidence Held Sufficient to Show Intent. —

Evidence held sufficient for a rational trier of fact to infer that defendant in burglary prosecution intended to commit the felony of rape. State v. Powell, 74 N.C. App. 584, 328 S.E.2d 613, 1985 N.C. App. LEXIS 3519 (1985).

Trial court did not err in denying defendant’s motion to dismiss his first-degree burglary charge and the evidence was sufficient to support the jury’s finding that defendant intended to rape the victim at the time that he forced his way into the victim’s residence where: (1) defendant forced the victim into her bedroom, pushed her onto the bed, threw his body on top of hers, and pinned her down; (2) defendant removed duct tape from his pocket, whereupon the victim renewed her efforts to escape and called for help; (3) defendant repeatedly touched the victim’s breast and genitals and, despite her resistance, did not end the assault until law enforcement officers arrived; and (4) although defendant asserted that he merely wished to use the telephone or the restroom when he entered the home, none of the acts he committed within the residence furthered these asserted goals. State v. Mangum, 158 N.C. App. 187, 580 S.E.2d 750, 2003 N.C. App. LEXIS 1036 (2003).

In an attempted first degree burglary case, a trial court could have inferred an intent to commit larceny because there was no evidence that defendant had a non-criminal intent on the two occasions that he attempted to break into a dwelling. Inter alia, defendant did not ask for assistance, and he did not explain how the evidence that he went from door to door at 4:00 a.m., trying the door knob of each dwelling, was evidence of a non-criminal purpose; moreover, the fact that defendant complied with an officer’s order to stop and the fact that he was not in possession of stolen goods at the time of his arrest did not show that he had a non-criminal reason for the attempted burglary. State v. Mims, 241 N.C. App. 611, 774 S.E.2d 349, 2015 N.C. App. LEXIS 506 (2015).

In an attempted first degree burglary case, a trial court could have inferred an intent to commit larceny because there was no evidence that defendant had a non-criminal intent on the two occasions that he attempted to break into a dwelling. Inter alia, defendant did not ask for assistance, and he did not explain how the evidence that he went from door to door at 4:00 a.m., trying the door knob of each dwelling, was evidence of a non-criminal purpose; moreover, the fact that defendant complied with an officer’s order to stop and the fact that he was not in possession of stolen goods at the time of his arrest did not show that he had a non-criminal reason for the attempted burglary. State v. Mims, 241 N.C. App. 611, 774 S.E.2d 349, 2015 N.C. App. LEXIS 506 (2015).

Evidence held sufficient to support finding of intent to rape so as to permit a conviction of first-degree burglary. State v. Wortham, 80 N.C. App. 54, 341 S.E.2d 76, 1986 N.C. App. LEXIS 2143 (1986), rev'd in part, 318 N.C. 669 , 351 S.E.2d 294, 1987 N.C. LEXIS 1741 (1987).

Evidence Held Sufficient to Establish Felony of Taking Indecent Liberties with a Child. —

Testimony of 13-year-old victim that intruder was feeling on his “private area” permitted the jury to reasonably conclude that the activity concerned the victim’s genital area, and taken with the remainder of State’s evidence, was sufficient to establish the underlying felony of taking indecent liberties with a child and, a fortiori, the offense of first degree burglary. State v. Oakman, 97 N.C. App. 433, 388 S.E.2d 579, 1990 N.C. App. LEXIS 135 (1990).

Evidence held insufficient to show overt manifestation of an intended forcible sexual gratification, even when it was considered that defendant had been previously convicted of a rape carried out in the same apartment complex by a similar method. State v. Davis, 90 N.C. App. 185, 368 S.E.2d 52, 1988 N.C. App. LEXIS 412 (1988).

VIII.Indictment

Felony Must Be Specified. —

In order for an indictment to sustain a verdict of guilty of burglary in the first degree, it must not only charge the burglarious entry with the intent at the time, but must also charge the felony intended to be committed with sufficient definiteness, though it is not necessary that the actual commission of the intended felony be charged or proven. State v. Allen, 186 N.C. 302 , 119 S.E. 504 (1923), superseded by statute, specifically G.S. 15A-924(a)(5), as stated in State v. Worsley, 336 N.C. 268 , 443 S.E.2d 68, 1994 N.C. LEXIS 233 (1994), and State v. Silas, 360 N.C. 377 , 627 S.E.2d 604, 2006 N.C. LEXIS 26 (2006).

The indictment for burglary must specify the particular felony which the defendant is alleged to have intended to commit at the time of the breaking and entering, and it is not sufficient to charge generally an intent to commit an unspecified felony. State v. Norwood, 289 N.C. 424 , 222 S.E.2d 253, 1976 N.C. LEXIS 1295 (1976).

The particular felony which it is alleged the accused intended to commit must be specified. State v. Wells, 290 N.C. 485 , 226 S.E.2d 325, 1976 N.C. LEXIS 1090 (1976).

When the prosecution amended an indictment for felonious breaking and entering in such a manner that the defendant could no longer rely upon its statement of the felony defendant allegedly intended, such an amendment was a substantial alteration and was prohibited by G.S. 15A-923(e), as to allow such practice would enable the State to thwart the very purpose of an indictment, which was to enable the accused to prepare for trial. State v. Farrar, 179 N.C. App. 561, 634 S.E.2d 253, 2006 N.C. App. LEXIS 1966 (2006), rev'd in part, 361 N.C. 675 , 651 S.E.2d 865, 2007 N.C. LEXIS 1097 (2007).

It is axiomatic that where the State alleges an intent to commit a specific felony as an element of burglary in the indictment, the jury is required to find defendant possessed the intent to commit the specific felony alleged in order to convict on the charge. State v. Farrar, 179 N.C. App. 561, 634 S.E.2d 253, 2006 N.C. App. LEXIS 1966 (2006), rev'd in part, 361 N.C. 675 , 651 S.E.2d 865, 2007 N.C. LEXIS 1097 (2007).

But Not Fully and Specifically. —

The indictment for burglary need not set out the felony which the defendant, at the time of the breaking and entering, intended to commit within the dwelling in as complete detail as would be required in an indictment for the actual commission of that felony. It must, however, state with certainty the felony which the State alleges he intended, at the time of his breaking and entering, to commit within the dwelling. State v. Cooper, 288 N.C. 496 , 219 S.E.2d 45, 1975 N.C. LEXIS 1015 (1975).

In an indictment for burglary the felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of that felony. State v. Norwood, 289 N.C. 424 , 222 S.E.2d 253, 1976 N.C. LEXIS 1295 (1976).

The felony intended need not be set out as fully and specifically as would be required in an indictment for the actual commission of said felony where the State is relying only upon the charge of burglary. State v. Wells, 290 N.C. 485 , 226 S.E.2d 325, 1976 N.C. LEXIS 1090 (1976); State v. Wilson, 293 N.C. 47 , 235 S.E.2d 219, 1977 N.C. LEXIS 855 (1977).

It is ordinarily sufficient to state the intended offense generally, as by alleging an intent to commit therein the crime of larceny, rape or arson. State v. Wells, 290 N.C. 485 , 226 S.E.2d 325, 1976 N.C. LEXIS 1090 (1976); State v. Wilson, 293 N.C. 47 , 235 S.E.2d 219, 1977 N.C. LEXIS 855 (1977).

There was not a fatal variance between the indictment charging that defendant broke into the victim’s residence with an intent to sexually assault the victim, a crime not recognized in North Carolina, and the evidence offered at trial as there was not a requirement that a burglary indictment specify the crime a defendant intended to commit at the time that he broke into a victim’s residence, and the indictment properly alleged that defendant intended to commit a felony at the time of the breaking and entering; further, the indictment alleged that defendant intended to kidnap the victim, a crime for which he was convicted. State v. Mangum, 158 N.C. App. 187, 580 S.E.2d 750, 2003 N.C. App. LEXIS 1036 (2003).

Charging Intent to Commit “a Felony” Insufficient. —

In an indictment for burglary it is not enough to charge generally an intent to commit “a felony” in the dwelling house of another. State v. Wells, 290 N.C. 485 , 226 S.E.2d 325, 1976 N.C. LEXIS 1090 (1976); State v. Wilson, 293 N.C. 47 , 235 S.E.2d 219, 1977 N.C. LEXIS 855 (1977).

Description of Stolen Property Not Required. —

It is not required that indictment for first-degree burglary describe property which defendant intended to steal, or that which he did steal. State v. Coffey, 289 N.C. 431 , 222 S.E.2d 217, 1976 N.C. LEXIS 1296 (1976).

Indictment Sufficient to Support Conviction of Lesser Offense. —

While it is error for the court to permit the jury to convict based on some abstract theory not supported by the bill of indictment, an indictment charging defendant with larceny pursuant to a burglary was sufficient to uphold defendant’s conviction for larceny pursuant to a breaking or entering, as felonious breaking or entering is a lesser degree of the offense of second degree burglary, and G.S. 15-170 provides that upon the trial of any indictment the prisoner may be convicted of the crime charged therein or a lesser degree of the same crime. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

Although, in its jury charge on the offense of first-degree burglary, the court did not instruct the jury on the lesser-included offense of felonious breaking or entering, the indictment charging only burglary and the instructions thereon were nonetheless sufficient to support a conviction for felonious breaking or entering. State v. Eldridge, 83 N.C. App. 312, 349 S.E.2d 881, 1986 N.C. App. LEXIS 2694 (1986).

Indictment Sufficient to Charge Larceny Punishable as a Felony. —

An indictment that alleged larceny was committed “pursuant to a violation of G.S. 14-51 ” was in the language of G.S. 14-72(b) and was sufficient to apprise defendant that he was charged with larceny punishable as a felony because it was committed pursuant to a burglary. State v. Mandina, 91 N.C. App. 686, 373 S.E.2d 155, 1988 N.C. App. LEXIS 911 (1988).

Indictment Sufficient To Charge First-Degree Burglary. —

Trial court did not err in convicting defendant of first-degree burglary because all of the legal elements of first-degree burglary were properly charged in the indictment; a nominal or inconsequential error in the street address does not render the indictment fatally defective, and north Carolina case law does not require that the breaking and entering element be specifically pleaded for the crime of burglary. State v. McCormick, 204 N.C. App. 105, 693 S.E.2d 195, 2010 N.C. App. LEXIS 820 (2010).

Failure to Identify Premises Fatal. —

Indictment for burglary is fatally defective if it fails to identify the premises broken and entered with sufficient certainty to enable the defendant to prepare his defense and to offer him protection from another prosecution for the same incident. State v. Coffey, 289 N.C. 431 , 222 S.E.2d 217, 1976 N.C. LEXIS 1296 (1976); State v. Beaver, 291 N.C. 137 , 229 S.E.2d 179, 1976 N.C. LEXIS 940 (1976).

Indictment for Burglarizing Unoccupied Toolshed Was Defective. —

Indictment for burglary in the second degree, which specified that defendant broke into and entered an unoccupied toolshed at nighttime with felonious intent, was defective and should have been quashed, and the trial court was remiss in not dismissing charges of burglary in the second degree based upon that indictment. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Burglary Indictment Insufficient. —

An indictment alleging that defendant broke and entered, with intent to commit a felony within, to wit: “by sexually assaulting a female,” did not charge the defendant with the crime of burglary and would not support the imposition of a sentence to life imprisonment for first-degree burglary. State v. Cooper, 288 N.C. 496 , 219 S.E.2d 45, 1975 N.C. LEXIS 1015 (1975).

Proof of Element Not Essential to Intended Felony Was Not Fatal Variance. —

Evidence that defendant followed his victims to apartment, that as they attempted to close the apartment door he pushed his way into the apartment, and that he took a purse from one of his victims and then fled supported a finding that he intended to commit and in fact did commit larceny from the person, so as to support conviction of first-degree burglary. The fact that he was required to use force against his victim in order to take the purse, thereby placing the victim in fear and elevating his crime to that of common-law robbery, did not establish a fatal variance in the indictment and the proof. State v. Brewer, 80 N.C. App. 195, 341 S.E.2d 354, 1986 N.C. App. LEXIS 2151 (1986).

What Must Be Proved Where Indictment Charges Intent to Commit Rape. —

Where bill of indictment stated that defendant broke and entered the dwelling house of the victim with the intent to commit a felony therein, to wit, rape, the State was required to introduce substantial evidence to permit the jury to find that, at the time defendant broke and entered, he intended to have vaginal intercourse with the victim by force and against her will. Furthermore, the state’s evidence had to present some overt manifestation of an intended forcible sexual gratification by defendant to prevail. State v. Davis, 90 N.C. App. 185, 368 S.E.2d 52, 1988 N.C. App. LEXIS 412 (1988).

IX.Lesser Offenses

Lesser Offense Set Forth in G.S. 14-54 . —

The statutory offense set forth in G.S. 14-54 is a less degree of the offense of burglary in the first degree as defined in this section. State v. Perry, 265 N.C. 517 , 144 S.E.2d 591, 1965 N.C. LEXIS 1030 (1965); State v. Fowler, 1 N.C. App. 546, 162 S.E.2d 37, 1968 N.C. App. LEXIS 1127 (1968).

A felonious entering into a house otherwise than burglariously with intent to commit larceny, a violation of G.S. 14-54 , is a less degree of the felony of burglary in the first degree. State v. Fikes, 270 N.C. 780 , 155 S.E.2d 277, 1967 N.C. LEXIS 1426 (1967).

A violation of G.S. 14-54 is a lesser degree of the felony of burglary in the first degree. State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510, 1969 N.C. App. LEXIS 1552 (1969).

The statutory offense of felonious breaking or entering is a lesser included offense of burglary in the first and second degrees. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979); State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

To justify submission of felonious breaking or entering as a permissible verdict in a prosecution for burglary there must be evidence tending to show that defendant could have gained entry to victim’s motel room by means other than a burglarious breaking, i.e., a forcible entry. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979).

Misdemeanor breaking or entering is a lesser included offense of burglary in the first degree. State v. Patton, 80 N.C. App. 302, 341 S.E.2d 744, 1986 N.C. App. LEXIS 2176 (1986); State v. Planter, 87 N.C. App. 585, 361 S.E.2d 768, 1987 N.C. App. LEXIS 3281 (1987).

Distinction between misdemeanor breaking or entering and burglary rests on whether the unlawful breaking or entering was done with the intent to commit the felony named in the indictment. State v. Patton, 80 N.C. App. 302, 341 S.E.2d 744, 1986 N.C. App. LEXIS 2176 (1986); State v. Planter, 87 N.C. App. 585, 361 S.E.2d 768, 1987 N.C. App. LEXIS 3281 (1987).

Where only evidence of intent to commit larceny was the fact that defendant broke and entered into victim’s apartment, the trial court erred in failing to submit the lesser included offense of misdemeanor breaking or entering to the jury as a possible verdict. State v. Patton, 80 N.C. App. 302, 341 S.E.2d 744, 1986 N.C. App. LEXIS 2176 (1986).

Forcible trespass and trespass are not lesser included offenses of attempted first-degree burglary. Attempted first-degree burglary does not require a commandment forbidding entry for an order to leave as does trespass under G.S. 14-134 . It also does not require that the defendant enter the lands of another by force, threats of force or a show of strength by a multitude of people, as does forcible trespass under G.S. 14-126 . State v. McAlister, 59 N.C. App. 58, 295 S.E.2d 501, 1982 N.C. App. LEXIS 2850 (1982).

Resentencing for Misdemeanor Breaking and Entering on Vacation of First Degree Burglary Conviction. —

By finding defendant guilty of first-degree burglary, the jury necessarily found facts which would support defendant’s conviction of misdemeanor breaking or entering, and thus where judgment on the verdict of guilty of first-degree burglary was vacated for failure to prove intent to commit a felony, the cause would be remanded to the superior court for resentencing on the misdemeanor breaking or entering conviction. State v. Davis, 90 N.C. App. 185, 368 S.E.2d 52, 1988 N.C. App. LEXIS 412 (1988).

X.Evidence

Fingerprint Evidence. —

Evidence that the occupant of a burglarized residence did not know defendant and had never seen him before, coupled with lack of evidence that defendant had ever been on the premises before, was substantial evidence that the accused’s fingerprints found inside the residence could only have been impressed at the time of the offense. State v. Wright, 78 N.C. App. 673, 334 S.E.2d 84 (1985).

Evidence that respondent entered a house at night because somebody was chasing her was evidence of other intent, and precluded application of the presumption that when a party enters the dwelling of another, in the nighttime, while the inmates are asleep, the usual intent is to steal. In re Mitchell, 87 N.C. App. 164, 359 S.E.2d 809, 1987 N.C. App. LEXIS 3077 (1987).

Recent Possession. —

Larceny and burglary convictions upheld under the doctrine of recent possession. State v. Walker, 86 N.C. App. 336, 357 S.E.2d 384, 1987 N.C. App. LEXIS 2694 (1987), aff'd, 321 N.C. 593 , 364 S.E.2d 141, 1988 N.C. LEXIS 5 (1988).

Denial of defendant’s motion to dismiss a burglary charge under G.S. 14-51 was proper as there was sufficient evidence of defendant’s identity as the perpetrator based on the doctrine of recent possession since the time period between when the items were missing and when defendant was discovered with the items was a matter of hours. State v. Brown, 221 N.C. App. 383, 732 S.E.2d 584, 2012 N.C. App. LEXIS 756 (2012).

Evidence Establishing Constructive Presence. —

Where state’s evidence tended to show defendant was waiting with a gun either five or six yards from the house or down the road, but close enough to lend aid by apprehending a victim who fled from the house immediately after a burglary, the court held there was sufficient evidence to establish defendant’s constructive presence and to submit the charge of burglary to the jury under the theory of acting in concert. State v. Barnes, 91 N.C. App. 484, 372 S.E.2d 352, 1988 N.C. App. LEXIS 827 (1988), modified, 324 N.C. 539 , 380 S.E.2d 118, 1989 N.C. LEXIS 293 (1989).

Sufficiency of Evidence. —

When the solicitor (now district attorney) announces that he will not seek a conviction upon the maximum degree of the crime charged in the bill of indictment, and the defendant interposes no objection to being tried upon the lesser degree of the offense, the sufficiency of the evidence to support a conviction of the lesser degree must be measured by the same standards which would be applied had the bill of indictment charged only the lesser degree of the offense. State v. Allen, 279 N.C. 115 , 181 S.E.2d 453, 1971 N.C. LEXIS 756 (1971).

Evidence was sufficient to overrule defendant’s motion to nonsuit in a prosecution for burglary. State v. Surles, 230 N.C. 272 , 52 S.E.2d 880, 1949 N.C. LEXIS 614 (1949); State v. Irick, 291 N.C. 480 , 231 S.E.2d 833, 1977 N.C. LEXIS 1217 (1977).

Evidence Was Sufficient to Deny Motion to Dismiss. —

Where defendant took the principals to dwelling at night, armed them and told them to “rough up” the inhabitants, the trial court did not err in denying defendant’s motion to dismiss or to set aside his conviction of first-degree burglary on grounds that he neither procured nor participated in breaking and entering. State v. Ruffin, 90 N.C. App. 705, 370 S.E.2d 275, 1988 N.C. App. LEXIS 638 (1988).

Trial judge did not err in denying defendant’s motion to dismiss the charges of first degree burglary, felonious larceny, and felonious possession of stolen goods; the presence of defendant’s fingerprints on both sides of a window to a room in which there was no apparent reason for his presence and from which a television had recently been taken was evidence sufficient to support a conclusion with respect to the charges against the defendant. State v. Williams, 95 N.C. App. 627, 383 S.E.2d 456, 1989 N.C. App. LEXIS 812 (1989).

In view of uncontroverted evidence presented by homeowner that the dwelling in question was occupied at the time defendant entered, it was not error for the trial court to deny his motion to dismiss the charge of first degree burglary on ground that State had failed to prove this. State v. Gilreath, 118 N.C. App. 200, 454 S.E.2d 871, 1995 N.C. App. LEXIS 161 (1995).

Defendants’ convictions in a joint trial for one count of first degree burglary and five counts of first degree kidnapping were affirmed because defendants and three other men entered a residence and tied up the five people that they found in the residence, hit some of the people that they tied up, took money from one of the people, and unplugged and moved a stereo system that they planned to take with them before police officers arrived upon the scene and arrested defendants. Furthermore, the trial court did not abuse its discretion in denying a motion to sever defendants’ trials because of defendants’ collective criminal behavior in the commission of the crimes. State v. Escoto, 162 N.C. App. 419, 590 S.E.2d 898, 2004 N.C. App. LEXIS 181 (2004).

Trial court properly denied defendant’s motion to dismiss criminal charges against him; evidence that defendant forced the victim at knifepoint from the front of her home to a bedroom and then sexually assaulted her constituted sufficient evidence to satisfy the charge of kidnapping under G.S. 14-39(a), as well as the charge of rape under G.S. 14-27.2 and burglary under G.S. 14-51 . State v. Blizzard, 169 N.C. App. 285, 610 S.E.2d 245, 2005 N.C. App. LEXIS 680 (2005).

Evidence held sufficient to convict defendant of both first degree burglary and robbery with a dangerous weapon. State v. Maness, 321 N.C. 454 , 364 S.E.2d 349, 1988 N.C. LEXIS 104 (1988).

Defendant’s second-degree burglary conviction under G.S. 14-51 was upheld because there was sufficient evidence that he intended to commit armed robbery when he entered the victim’s hotel room; defendant held the victim at gunpoint while the victim was forced into his room and robbed. A constructive breaking occurred when the victim was forced into his room. State v. Irons, 189 N.C. App. 201, 657 S.E.2d 733, 2008 N.C. App. LEXIS 408 (2008).

Sufficient Evidence of Burglary in the First Degree. —

There was sufficient evidence to convict defendant of burglary in the first degree under G.S. 14-51 , given that the State showed that he broke and entered his murder victim’s home in the nighttime. While the evidence that the victim was in or near her nightclothes at the time of the murder was not dispositive of whether the breaking and entering occurred at night, such evidence was relative and was properly considered with the other evidence that tended to show that the crime occurred during the nighttime. State v. Elliott, 360 N.C. 400 , 628 S.E.2d 735, 2006 N.C. LEXIS 46 (2006), cert. denied, 549 U.S. 1000, 127 S. Ct. 505, 166 L. Ed. 2d 378, 2006 U.S. LEXIS 8127 (2006), writ denied, 364 N.C. 437 , 702 S.E.2d 498, 2010 N.C. LEXIS 762 (2010).

XI.Instructions

Alternative Theories of Guilt. —

Jury instructions on three alternative theories of guilt under which defendant could be convicted of burglary did not violate N.C. Const. Art. I, § 24 as the separate theories of guilt were not separate offenses, and all of the theories required a common mindset to burglarize the victims’ home and an act in furtherance of the crime; the instructions were proper, even though two theories required defendant’s presence and one required him to not be present. State v. Surrett, 217 N.C. App. 89, 719 S.E.2d 120, 2011 N.C. App. LEXIS 2345 (2011).

Instruction as to Second Degree Burglary Not Authorized Where All Evidence Proves First Degree Burglary. —

Where all the evidence is to the effect that the building was actually occupied at the time of the breaking and entry, the court is not authorized to instruct the jury that it may return a verdict of burglary in the second degree. State v. Tippett, 270 N.C. 588 , 155 S.E.2d 269, 1967 N.C. LEXIS 1391 (1967).

Where a burglarious breaking into a dwelling house had been charged in the bill of indictment, and the evidence tended only to establish the first degree burglary, an instruction to the jury that they might return a verdict of guilty in either degree was erroneous. State v. Allen, 186 N.C. 302 , 119 S.E. 504 (1923), superseded by statute as stated in State v. Worsley, 336 N.C. 268 , 443 S.E.2d 68 (1994), and State v. Silas, 360 N.C. 377 , 627 S.E.2d 603 (2006).

Failure to Instruct on Specific Intent Held Error. —

The trial court’s aiding and abetting instructions were erroneous in failing to require that the jury find the defendant possessed the specific criminal intent for commission of first degree burglary and second degree kidnapping. The trial court’s use of the phrases “knowingly encouraged and[/or] aided” did not “adequately convey” the requisite specific intent concept as expressly requested by defendant in writing. State v. Lucas, 138 N.C. App. 226, 530 S.E.2d 602, 2000 N.C. App. LEXIS 596 (2000), aff'd in part and rev'd in part, 353 N.C. 568 , 548 S.E.2d 712, 2001 N.C. LEXIS 668 (2001).

Charge of Misdemeanor Breaking and Entering Not Required. —

Where the prosecutrix’s testimony supported the conclusion that defendant attempted to rape her, and neither the State nor defendant submitted any evidence from which to infer another reason for defendant’s entry into the prosecutrix’s room, the trial court did not err in failing to submit the lesser-included offense of misdemeanor breaking or entering to the jury as a possible verdict for defendant. State v. Planter, 87 N.C. App. 585, 361 S.E.2d 768, 1987 N.C. App. LEXIS 3281 (1987).

Where overwhelming evidence showed that prior to breaking into the house defendant had decided to kill his estranged wife’s family, all the evidence relevant to the time before defendant broke and entered supported an inference that defendant possessed the intent to kill, and no evidence tended to negate this intent, a rational trier of fact could not have concluded defendant did not possess the intent to commit murder, and the trial court did not err in refusing to instruct on the lesser-included offense of misdemeanor breaking or entering. State v. Gibbs, 335 N.C. 1 , 436 S.E.2d 321, 1993 N.C. LEXIS 542 (1993), cert. denied, 512 U.S. 1246, 114 S. Ct. 2767, 129 L. Ed. 2d 881, 1994 U.S. LEXIS 5069 (1994).

Evidence of intoxication was insufficient to require an instruction on misdemeanor breaking and entering where the only evidence of defendant’s intoxication was the testimony defendant was an alcoholic, defendant’s testimony that he had been drinking on the dates in question, and the fact that the police, on a later date, found beer in his car. State v. Howie, 116 N.C. App. 609, 448 S.E.2d 867, 1994 N.C. App. LEXIS 1070 (1994).

Where State’s evidence clearly satisfied the elements of first-degree burglary and first-degree statutory rape, and there was no substantial evidence of misdemeanor breaking or entering, it was not error for judge to refuse to instruct on the lesser offense. State v. Campbell, 133 N.C. App. 531, 515 S.E.2d 732, 1999 N.C. App. LEXIS 619 (1999).

Charge of Felonious Breaking and Entering Not Required. —

Defendant who was charged with first degree burglary was not entitled to a jury instruction on the lesser included offense of felonious breaking and entering where the state’s evidence was sufficient to satisfy its burden of proof on each element of the greater offense. State v. Crawford, 179 N.C. App. 613, 634 S.E.2d 909, 2006 N.C. App. LEXIS 2019 (2006).

Error Not to Instruct on Misdemeanor Breaking and Entering. —

The trial court erred in not instructing the jury on the lesser-included offense of misdemeanor breaking or entering and the error was not cured by the guilty verdict of first-degree burglary since it cannot be known whether the jury would have convicted defendant of misdemeanor breaking or entering had it been properly instructed. State v. Barlowe, 337 N.C. 371 , 446 S.E.2d 352, 1994 N.C. LEXIS 398 (1994).

Instruction that defendant must have intended to commit rape or robbery with a dangerous weapon, or both at the time of the breaking and entering was proper and did not violate defendant’s right to a unanimous jury verdict, where the indictment was phrased in the conjunctive, e.g., rape and robbery. It was proper for the trial court to instruct the jury that it could convict for the indicted offense if it found that defendant committed either or both of the particular felonies alleged to support the indictment. State v. Williams, 314 N.C. 337 , 333 S.E.2d 708, 1985 N.C. LEXIS 1879 (1985).

Instructions as to Lesser Offenses Supported by Evidence. —

Where there is evidence of a burglarious entry into a dwelling house sufficient to convict of first degree burglary, and also of the lesser offense, it is reversible error for the trial judge to refuse or neglect to charge the different elements of law relating to each of the separate offenses, though a verdict of guilty of the lesser offense might have been rendered, and this error is not cured under a general verdict of guilty of the greater offense. State v. Allen, 186 N.C. 302 , 119 S.E. 504 (1923), superseded by statute as stated in State v. Worsley, 336 N.C. 268 , 443 S.E.2d 68 (1994), and State v. Silas, 360 N.C. 377 , 627 S.E.2d 603 (2006).

Instructions as to Lesser Offense Not Supported by Evidence. —

Ample evidence from which the jury could infer that defendant entered the victim’s house with the intent to commit rape and to commit other offenses against the victims did not conflict with evidence that he intended to commit rape, but was irrelevant for purposes of proof of burglary and of felony murder. Therefore, the State’s evidence was positive as to each element of burglary based on the intent to commit rape, and no evidence contradicted any element of this charge. Thus, the trial court did not err in refusing to submit the lesser-included offenses of second-degree murder and involuntary manslaughter to the jury. State v. Yelverton, 334 N.C. 532 , 434 S.E.2d 183, 1993 N.C. LEXIS 398 (1993).

Failure to instruct on the lesser-included offense of misdemeanor breaking or entering was not error where there was no evidence to support the lesser charge. State v. Gay, 334 N.C. 467 , 434 S.E.2d 840, 1993 N.C. LEXIS 392 (1993).

Trial court did not err in refusing to charge the jury on the lesser included offense of common law robbery where evidence showed defendant used a knife, a deadly weapon. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808, 2011 N.C. App. LEXIS 1224 (2011).

Failure to Charge Lesser Offense. —

Since a rational trier of fact could have found that the drugged and intoxicated defendant did not form an intent to commit larceny before breaking and entering, the trial court prejudicially erred in failing to instruct on misdemeanor breaking and entering. State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190, 1985 N.C. LEXIS 1557 (1985).

Lesser Offense Set Forth in G.S. 14-54 . —

Breaking or entering a building with intent to terrorize under G.S. 14-54(a1) is not a lesser included offense of first-degree burglary because unlike first-degree burglary, G.S. 14-54(a1) requires the intent to terrorize or injure an occupant of the building broken or entered into. Unlike G.S. 14-54(a1), first-degree burglary requires (i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein. State v. McDaris, 274 N.C. App. 339, 852 S.E.2d 403, 2020 N.C. App. LEXIS 798 (2020).

Instruction That Verdict of Burglary in Second Degree Not Permissible. —

Where all the evidence shows that dwelling was actually occupied, instruction that verdict of burglary in second degree is not permissible is without error. State v. Johnson, 218 N.C. 604 , 12 S.E.2d 278, 1940 N.C. LEXIS 58 (1940).

Where all of the evidence presented showed the dwelling was occupied at the time of the breaking and entering, the court was not authorized to instruct the jury it could return a verdict of burglary in the second degree. State v. Gilreath, 118 N.C. App. 200, 454 S.E.2d 871, 1995 N.C. App. LEXIS 161 (1995).

Where evidence showed that house was unoccupied for approximately half an hour, there was no error in instructing the jury that if it did not find from the evidence, beyond a reasonable doubt, that the house was occupied at the time of the breaking and entering, it should find the defendant not guilty of burglary in the first degree, but it should return a verdict of burglary in the second degree if it did so find each of the elements thereof. State v. Tippett, 270 N.C. 588 , 155 S.E.2d 269, 1967 N.C. LEXIS 1391 (1967).

Sufficient Evidence to Submit Question of First-Degree Burglary to Jury. —

Evidence that the house was broken into by forcing the door open, that the time was late at night, and that the prosecuting witness and his wife were asleep in the room entered, together with evidence that tracks in the freshly fallen snow were followed and led to the defendant’s room in another house in a distant part of the city, where defendant was apprehended, was held sufficient to be submitted to the jury on the question of defendant’s guilt of burglary in the first degree. State v. Oakley, 210 N.C. 206 , 186 S.E. 244, 1936 N.C. LEXIS 60 (1936).

Where evidence supported an inference that second victim had been forced, through violence and the threat of violence, back into his upstairs apartment before being killed, trial court did not err in submitting the charge of first-degree burglary to the jury. State v. Parker, 350 N.C. 411 , 516 S.E.2d 106, 1999 N.C. LEXIS 424 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681, 2000 U.S. LEXIS 246 (2000).

Sufficient Evidence to Submit Question of Second-Degree Burglary. —

Evidence that the defendants encountered the owner of a dwelling house immediately outside of the house at nighttime, and marched him into the house at the point of firearms and stole money which was hidden in the house, was sufficient to be submitted to the jury on the charge of second-degree burglary, the method of entry being a constructive “breaking.” State v. Rodgers, 216 N.C. 572 , 5 S.E.2d 831, 1939 N.C. LEXIS 52 (1939).

Submission of Question of Guilt of Nonburglarious Breaking. —

The evidence tended to show unlawful entry into a dwelling at nighttime while same was actually occupied, and the actual commission therein of the felony charged in the bill of indictment. The evidence also tended to show that a window of the room in which felony was committed was open, and that the perpetrator of the crime was first seen in this room, and that after the commission of the crime he escaped by the open window. There was also circumstantial evidence that entry was made by opening a window of another room of the house. There was also sufficient evidence tending to identify defendant as the perpetrator of the crime. Held: Although there was no evidence of burglary in the second degree, the evidence tended to show burglary in the first degree, or a nonburglarious breaking and entering with intent to commit a felony, depending upon whether the perpetrator of the crime entered by the open window or burglariously “broke” into the dwelling, and therefore the trial court should have charged that the defendant could be found guilty of burglary in the first degree, guilty of a nonburglarious breaking and entering of the dwelling house with intent to commit a felony or other infamous crime therein, or not guilty, and its failure to submit the question of defendant’s guilt of nonburglarious entry constituted reversible error. State v. Chambers, 218 N.C. 442 , 11 S.E.2d 280, 1940 N.C. LEXIS 7 (1940).

Failure to Define Larceny. —

Where an indictment for second-degree burglary alleged that the defendant’s intent was to commit larceny, but the trial judge failed to define the term “larceny” in its instructions, the omission was prejudicial and erroneous and required a new trial. State v. Foust, 40 N.C. App. 71, 251 S.E.2d 893, 1979 N.C. App. LEXIS 2581 (1979).

Charge Where Only Issue Was Time of Offense. —

Where one charged with burglary in the first degree admitted the entering and taking, the only question remaining was whether it was done at nighttime, and the jury should not have been charged that they could convict of a lesser offense as provided by this section, for the offense was either burglary in the first degree or larceny. State v. McKnight, 111 N.C. 690 , 16 S.E. 319, 1892 N.C. LEXIS 245 (1892).

Opinion of What Constituted Dwelling House. —

Challenged instruction of the trial court, which constituted an indirect statement that apartment and the common areas of sorority house constituted a single “dwelling house” for purposes of application of the burglary statute, violated G.S. 15A-1232 by expressing an opinion as to the existence of a material fact. State v. Merritt, 120 N.C. App. 732, 463 S.E.2d 590, 1995 N.C. App. LEXIS 928 (1995).

XII.Verdict

Discretion of Jury as to Degree. —

The jury does not have the discretionary power to return a verdict of burglary in the second degree if all the evidence shows burglary in the first degree. But under an indictment for burglary in the first degree a verdict of second-degree burglary may be returned if the evidence shows such an offense. State v. Fleming, 107 N.C. 905 , 12 S.E. 131, 1890 N.C. LEXIS 170 (1890).

Where, in the trial of an indictment for burglary, the evidence showed that the house in which the crime was committed was actually occupied at the time, a conviction of burglary in the second degree was not authorized. State v. Alston, 113 N.C. 666 , 18 S.E. 692, 1893 N.C. LEXIS 147 (1893); State v. Johnston, 119 N.C. 883 , 26 S.E. 163, 1896 N.C. LEXIS 402 (1896).

Attempt to Commit Burglary. —

The jury may convict of an attempt to commit burglary in the second degree where the prosecution is for burglary in the first degree. State v. Surles, 230 N.C. 272 , 52 S.E.2d 880, 1949 N.C. LEXIS 614 (1949).

Effect of Requesting Verdict of Second Degree Burglary on Indictment Charging Burglary in First Degree. —

The defendant was charged with burglary in the first degree in the bill of indictment, and when the solicitor (now district attorney) stated that he would not ask for a verdict of first degree burglary, but would only ask for a verdict of second degree burglary on the indictment, it was tantamount to taking a nolle prosequi with leave on the capital charge. State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510, 1969 N.C. App. LEXIS 1552 (1969).

Verdict of Guilty in First Degree upon Trial for Burglary in Second Degree Set Aside. —

Where defendant was tried for burglary in the second degree on indictment charging burglary in the first degree, and the verdict, as rendered, showed defendant was convicted of burglary in the first degree, or was guilty “as charged in the bill of indictment,” the fact that clerk certified “that defendant was guilty of second degree burglary as charged in the bill of indictment” which was merely the clerk’s interpretation of verdict, rather than a precise certification of it, was not sufficient to deny motion to set aside verdict. State v. Jordan, 226 N.C. 155 , 37 S.E.2d 111, 1946 N.C. LEXIS 403 (1946).

Verdict Considered as Verdict for Lesser Offense Where Breaking Not Shown. —

Where there was insufficient evidence from which the jury could find that defendant committed an actual breaking under the court’s instructions, the verdicts of second degree burglary returned by the jury would be considered verdicts of guilty of felonious breaking or entering. State v. Helton, 79 N.C. App. 566, 339 S.E.2d 814, 1986 N.C. App. LEXIS 2082 (1986).

Double Jeopardy. —

The offense of burglary is completed by the breaking and entering of the occupied dwelling of another, in the nighttime, with the intent to commit the designated felony therein. The crime has been committed even though, after entering the house, the accused abandons his intent to commit the designated felony. Consequently, the felonious intent required as an element of burglary cannot be equated with the commission of the underlying felony, and if a burglar after breaking and entering proceeds to commit the underlying felony inside the dwelling, he can be convicted of both crimes. State v. Brady, 299 N.C. 547 , 264 S.E.2d 66, 1980 N.C. LEXIS 986 (1980).

Defendant’s conviction of felonious larceny, armed robbery, burglary, and rape, all of which arose out of the same series of events, did not place defendant in double jeopardy, since the four offenses were legally separate and distinct crimes, no one of which was a lesser included offense of the other; each clearly required the proof of at least one essential element not embodied in any of the other three offenses at issue; and the four felonies were factually distinct and independent crimes. State v. Revelle, 301 N.C. 153 , 270 S.E.2d 476, 1980 N.C. LEXIS 1155 (1980).

Defendant’s burglary conviction did not violate double jeopardy principles where he was also convicted for first degree felony-murder; there was no inconsistency in the jury finding a lack of premeditation and deliberation required for first degree murder but finding the requisite intent to satisfy a felony-murder conviction. State v. Blyther, 138 N.C. App. 443, 531 S.E.2d 855, 2000 N.C. App. LEXIS 619 (2000).

§ 14-51.1. [Repealed]

Repealed by Session Laws 2011-268, s. 2, effective December 1, 2011.

History. 1993 (Reg. Sess., 1994), c. 673, s. 1; repealed by 2011-268, s. 26, effective December 1, 2011.

Cross References.

For current sections pertaining to use of defensive force in protection of home, etc., see G.S. 14-51.2 et seq.

Editor’s Note.

Former G.S. 14-51.1 pertained to use of deadly physical force against an intruder.

Session Laws 2011-268, s. 26, provides: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-51.2. Home, workplace, and motor vehicle protection; presumption of fear of death or serious bodily harm.

  1. The following definitions apply in this section:
    1. Home. — A building or conveyance of any kind, to include its curtilage, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence.
    2. Law enforcement officer. — Any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, probation officer, post-release supervision officer, or parole officer.
    3. Motor vehicle. — As defined in G.S. 20-4.01(23) .
    4. Workplace. — A building or conveyance of any kind, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, which is being used for commercial purposes.
  2. The lawful occupant of a home, motor vehicle, or workplace is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or serious bodily harm to another if both of the following apply:
    1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, motor vehicle, or workplace, or if that person had removed or was attempting to remove another against that person’s will from the home, motor vehicle, or workplace.
    2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
  3. The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances:
    1. The person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.
    2. The person sought to be removed from the home, motor vehicle, or workplace is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used.
    3. The person who uses defensive force is engaged in, attempting to escape from, or using the home, motor vehicle, or workplace to further any criminal offense that involves the use or threat of physical force or violence against any individual.
    4. The person against whom the defensive force is used is a law enforcement officer or bail bondsman who enters or attempts to enter a home, motor vehicle, or workplace in the lawful performance of his or her official duties, and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.
    5. The person against whom the defensive force is used (i) has discontinued all efforts to unlawfully and forcefully enter the home, motor vehicle, or workplace and (ii) has exited the home, motor vehicle, or workplace.
  4. A person who unlawfully and by force enters or attempts to enter a person’s home, motor vehicle, or workplace is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
  5. A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.
  6. A lawful occupant within his or her home, motor vehicle, or workplace does not have a duty to retreat from an intruder in the circumstances described in this section.
  7. This section is not intended to repeal or limit any other defense that may exist under the common law.

History. 2011-268, s. 1.

Editor’s Note.

Session Laws 2011-268, s. 26, provides: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Legal Periodicals.

For comment, “Protecting the Home: Castle Doctrine in North Carolina,” see 43 Campbell L. Rev. 137 (2021).

CASE NOTES

Editor’s Note. —

Some of the following annotations were decided under former G.S. 14-51.1 .

Construction. —

In enacting G.S. 14-51.1 , the general assembly broadened the defense of habitation to make the use of deadly force justifiable whether to prevent unlawful entry into the home or to terminate an unlawful entry by an intruder. State v. Blue, 356 N.C. 79 , 565 S.E.2d 133, 2002 N.C. LEXIS 540 (2002).

Language of subsection (b) is clear: the same rebuttable presumption of lawfulness applies if the person against whom defensive force is used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred. State v. Kuhns, 260 N.C. App. 281, 817 S.E.2d 828, 2018 N.C. App. LEXIS 646 (2018).

Front Porch of Home. —

The court properly instructed the jury with regard to the defendant’s right to defend himself pursuant to this section, notwithstanding the defendant’s assertion that the trial court committed prejudicial error when it failed to instruct the jury that the front porch was part of his home’s curtilage and thus covered thereunder; the jury asked whether the front porch was “a part of the home or inside the home,” and the trial court properly replied that the “front porch is a part of the home,” and “a front porch is not inside the home.” State v. Blue, 143 N.C. App. 478, 550 S.E.2d 6, 2001 N.C. App. LEXIS 301 (2001), rev'd, 356 N.C. 79 , 565 S.E.2d 133, 2002 N.C. LEXIS 540 (2002).

Whether a porch, deck, garage, or other appurtenance attached to a dwelling is within the home or residence for purposes of G.S. 14-51.1 is a question of fact best left for the jury’s determination based on the evidence presented at trial. State v. Blue, 356 N.C. 79 , 565 S.E.2d 133, 2002 N.C. LEXIS 540 (2002).

When a trial judge, in response to the jury’s question asking whether a porch was inside a home, responded that “a porch is not inside the home,” this was tantamount to instructing the jury that the porch could not as a matter of law be inside the home for purposes of a defense of habitation defense under G.S. 14-51.1 , and it improperly invaded the province of the jury and commented on the evidence. State v. Blue, 356 N.C. 79 , 565 S.E.2d 133, 2002 N.C. LEXIS 540 (2002).

Defendant, who testified that defendant did not intend to shoot a police officer that kicked open the door to defendant’s bedroom, was not entitled to an instruction on the castle doctrine because defendant’s own words disproved the rebuttable presumption that defendant was in reasonable fear of imminent harm. State v. Cook, 254 N.C. App. 150, 802 S.E.2d 575, 2017 N.C. App. LEXIS 454 (2017), cert. dismissed, 370 N.C. 575 , 809 S.E.2d 601, 2018 N.C. LEXIS 112 (2018), aff'd, 370 N.C. 506 , 809 S.E.2d 566, 2018 N.C. LEXIS 52 (2018).

During defendant’s trial for assault with a deadly weapon, the trial court erred by failing to instruct the jury that defendant had no duty to retreat before using deadly force in self-defense and by later instructing the jury that the law pertaining to whether defendant had no duty to retreat did not apply to the case because it was required under this section, and defendant was entitled to a new trial. State v. Bass, 253 N.C. App. 754, 802 S.E.2d 477, 2017 N.C. App. LEXIS 440 (2017), aff'd in part and rev'd in part, 371 N.C. 535 , 819 S.E.2d 322, 2018 N.C. LEXIS 918 (2018).

Because the trial court agreed to instruct the jury on self-defense, its omission of the required stand-your-ground provision substantively deviated from the agreed-upon pattern jury instruction, thus preserving the issue for appellate review. State v. Lee, 370 N.C. 671 , 811 S.E.2d 563, 2018 N.C. LEXIS 221 (2018).

Record reflected a reasonable possibility that, had the trial court given the required stand-your-ground provision from its instructions on self-defense, a different result would have been reached because during closing argument, the State contended that defendant’s failure to retreat was culpable; thus, the omission of the stand-your-ground instruction permitted the jury to consider defendant’s failure to retreat as evidence that his use of force was unnecessary, excessive, or unreasonable. State v. Lee, 370 N.C. 671 , 811 S.E.2d 563, 2018 N.C. LEXIS 221 (2018).

Under either G.S. 14-51.2 or G.S. 14-51.3 , a person does not have a duty to retreat, but may stand his or her ground; accordingly, when the defendant presents competent evidence of self-defense at trial, the trial court must instruct the jury on a defendant’s right to stand his or her ground, as that instruction informs the determination of whether the defendant’s actions were reasonable under the circumstances, a critical component of self-defense. State v. Lee, 370 N.C. 671 , 811 S.E.2d 563, 2018 N.C. LEXIS 221 (2018).

Trial court committed prejudicial error by failing to provide defendant’s requested jury instruction on the defense of habitation because despite numerous requests to leave and multiple orders from law enforcement, the victim continued to return to defendant’s property while repeatedly threatening him with bodily harm; the victim was within the curtilage of defendant’s property, and therefore, within his home, when defendant utilized defensive force against the victim. State v. Kuhns, 260 N.C. App. 281, 817 S.E.2d 828, 2018 N.C. App. LEXIS 646 (2018).

Defendant was prejudiced by the trial court’s failure to provide the requested instruction on the defense of habitation because a person who used permissible defensive force was justified in using such force and was immune from civil or criminal liability for the use of such force. State v. Kuhns, 260 N.C. App. 281, 817 S.E.2d 828, 2018 N.C. App. LEXIS 646 (2018).

Error In Failure to Provide Jury Instruction. —

Defendant’s convictions were reversed and he was granted a new trial as the trial court erred by declining to instruct the jury on defense of habitation because defendant was inside his home when the victim crossed over the door’s threshold; the victim had repeatedly assaulted defendant previously that evening, including throwing him into and over furniture inside his home; defendant had barely managed to get himself off of the floor and into his wheelchair when the victim returned and entered defendant’s home; and, presuming a conflict in the evidence existed as to whether the victim had a right to be in defendant’s home as he either stayed there occasionally or kept some clothes there, it was to be resolved by a properly instructed jury. State v. Coley, 263 N.C. App. 249, 822 S.E.2d 762, 2018 N.C. App. LEXIS 1218 (2018), aff'd, 375 N.C. 156 , 846 S.E.2d 455, 2020 N.C. LEXIS 686 (2020).

Jury Instruction. —

Defendant was entitled to a new trial, with complete and accurate instruction on self-defense, because the trial court committed reversible error in omitting the relevant stand your ground language from the jury instructions delivered at trial as defendant alleged that defendant shot the victim in self-defense. State v. Bass, 371 N.C. 535 , 819 S.E.2d 322, 2018 N.C. LEXIS 918 (2018).

Because the defendant invited any error in the trial court’s instructions as to self-defense and defense of habitation, the defendant waived review of the issue, including plain error review; defendant could not show material prejudice from the failure to record the entire charge conference because the trial court twice mentioned the possibility of giving an instruction on defense of habitation and invited counsel to address the issue, but defendant instead focused on the self-defense instruction. State v. Coburn, 268 N.C. App. 233, 834 S.E.2d 691, 2019 N.C. App. LEXIS 882 (2019).

Trial court committed reversible error by instructing the jury that defendant would not be entitled to the full benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with the victim, his son-in-law, because the undisputed evidence did not support that anyone other than the victim was the aggressor in the altercation, as defendant was woken up by noise in the middle of the night and found the victim strangling defendant’s daughter, the victim’s wife, in their bedroom and threatening to kill her. State v. Corbett, 269 N.C. App. 509, 839 S.E.2d 361, 2020 N.C. App. LEXIS 118 (2020), cert. dismissed, 375 N.C. 276 , 845 S.E.2d 793, 2020 N.C. LEXIS 742 (2020), aff'd, 376 N.C. 799 , 855 S.E.2d 228, 2021- NCSC-18, 2021 N.C. LEXIS 176 (2021).

Trial court did not err in declining to instruct the jury on defendant’s requested instruction of defense of habitation when defendant was convicted of assault with a deadly weapon inflicting serious injury because there was no evidence the victim was in fact in the process of unlawfully and forcefully entering, or had unlawfully and forcefully entered, a home as the blood spatter and all-terrain vehicle tracks showed that the victim was outside the bounds of defendant’s property and away from defendant’s residence. State v. Dilworth, 274 N.C. App. 57, 851 S.E.2d 406, 2020 N.C. App. LEXIS 723 (2020).

Trial court properly instructed the jury when defendant shot and killed the victim in defendant’s driveway because the court’s instructions, viewed as a whole, properly instructed the jury on the elements of the castle doctrine. State v. Austin, 2021-NCCOA-494, 279 N.C. App. 377, 865 S.E.2d 350, 2021- NCCOA-494, 2021 N.C. App. LEXIS 510 (2021).

Jury to Determine Fact Issues. —

Because the trial court determined that there were fact questions concerning the applicability of the castle doctrine defense when defendant shot and killed the victim in defendant’s driveway, the trial court properly permitted the case to proceed to trial so that the jury could resolve those disputed facts. State v. Austin, 2021-NCCOA-494, 279 N.C. App. 377, 865 S.E.2d 350, 2021- NCCOA-494, 2021 N.C. App. LEXIS 510 (2021).

Sufficiency of the Evidence. —

Trial court properly denied defendant’s motion to dismiss for insufficiency of the evidence because the State of North Carolina presented sufficient evidence to rebut the castle doctrine’s presumption in favor of the lawful occupant of a home, thus creating a fact issue concerning the doctrine’s applicability, when defendant shot and killed the victim in defendant’s driveway, A witness for the State testified that defendant stood over the wounded victim and fatally shot the victim as the victim pleaded with defendant. State v. Austin, 2021-NCCOA-494, 279 N.C. App. 377, 865 S.E.2d 350, 2021- NCCOA-494, 2021 N.C. App. LEXIS 510 (2021).

§ 14-51.3. Use of force in defense of person; relief from criminal or civil liability.

  1. A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:
    1. He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.
    2. Under the circumstances permitted pursuant to G.S. 14-51.2 .
  2. A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.

History. 2011-268, s. 1.

Editor’s Note.

Session Laws 2011-268, s. 26, provides: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Legal Periodicals.

For comment, “Protecting the Home: Castle Doctrine in North Carolina,” see 43 Campbell L. Rev. 137 (2021).

CASE NOTES

Erroneous Jury Instruction. —

Trial court’s deviation from the pattern self-defense instruction, taken as a whole, misstated the law by suggesting that an aggressor could not under any circumstances regain justification for using defensive force and the error entitled defendant to a new trial because there was a reasonable possibility that had the jury been properly instructed on self-defense the jurors would not have convicted defendant. State v. Holloman, 247 N.C. App. 434, 786 S.E.2d 328, 2016 N.C. App. LEXIS 529 (2016), rev'd, 369 N.C. 615 , 799 S.E.2d 824, 2017 N.C. LEXIS 397 (2017).

Because the trial court agreed to instruct the jury on self-defense, its omission of the required stand-your-ground provision substantively deviated from the agreed-upon pattern jury instruction, thus preserving the issue for appellate review. State v. Lee, 370 N.C. 671 , 811 S.E.2d 563, 2018 N.C. LEXIS 221 (2018).

Record reflected a reasonable possibility that, had the trial court given the required stand-your-ground provision from its instructions on self-defense, a different result would have been reached because during closing argument, the State contended that defendant’s failure to retreat was culpable; thus, the omission of the stand-your-ground instruction permitted the jury to consider defendant’s failure to retreat as evidence that his use of force was unnecessary, excessive, or unreasonable. State v. Lee, 370 N.C. 671 , 811 S.E.2d 563, 2018 N.C. LEXIS 221 (2018).

Defendant was entitled to a new trial, with complete and accurate instruction on self-defense, because the trial court committed reversible error in omitting the relevant stand your ground language from the jury instructions delivered at trial as defendant alleged that defendant shot the victim in self-defense. State v. Bass, 371 N.C. 535 , 819 S.E.2d 322, 2018 N.C. LEXIS 918 (2018).

Trial court committed reversible error by instructing the jury that defendant would not be entitled to the full benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with the victim, his son-in-law, because the undisputed evidence did not support that anyone other than the victim was the aggressor in the altercation, as defendant was woken up by noise in the middle of the night and found the victim strangling defendant’s daughter, the victim’s wife, in their bedroom and threatening to kill her. State v. Corbett, 269 N.C. App. 509, 839 S.E.2d 361, 2020 N.C. App. LEXIS 118 (2020), cert. dismissed, 375 N.C. 276 , 845 S.E.2d 793, 2020 N.C. LEXIS 742 (2020), aff'd, 376 N.C. 799 , 855 S.E.2d 228, 2021- NCSC-18, 2021 N.C. LEXIS 176 (2021).

Jury Instruction Proper. —

Trial court did not err by failing to allow the jury to consider whether defendant could have regained the right to use defensive force even though he had been the aggressor with the intent to use non-deadly force because such an instruction would not have constituted an accurate statement of the law arising upon the evidence; the record evidence demonstrated the complete absence of any evidence tending to show that defendant was the aggressor using non-deadly, as compared to deadly, force. State v. Holloman, 369 N.C. 615 , 799 S.E.2d 824, 2017 N.C. LEXIS 397 (2017).

During defendant’s trial for assault with a deadly weapon, the trial court erred by failing to instruct the jury that defendant had no duty to retreat before using deadly force in self-defense and by later instructing the jury that the law pertaining to whether defendant had no duty to retreat did not apply to the case because it was required under this section, and defendant was entitled to a new trial. State v. Bass, 253 N.C. App. 754, 802 S.E.2d 477, 2017 N.C. App. LEXIS 440 (2017), aff'd in part and rev'd in part, 371 N.C. 535 , 819 S.E.2d 322, 2018 N.C. LEXIS 918 (2018).

Court of appeals improperly vacated defendant’s conviction because the self-defense instructions were not erroneous; the instruction that a defendant who was the aggressor using deadly force forfeited the right to use deadly force in self-defense and that a person who displayed a firearm to the opponent with the intent to use deadly force and provoked the use of deadly force was an aggressor for purposes of the law of self-defense did not constitute an inaccurate statement of the law. State v. Holloman, 369 N.C. 615 , 799 S.E.2d 824, 2017 N.C. LEXIS 397 (2017).

Under either G.S. 14-51.2 or G.S. 14-51.3 , a person does not have a duty to retreat, but may stand his or her ground; accordingly, when the defendant presents competent evidence of self-defense at trial, the trial court must instruct the jury on a defendant’s right to stand his or her ground, as that instruction informs the determination of whether the defendant’s actions were reasonable under the circumstances, a critical component of self-defense. State v. Lee, 370 N.C. 671 , 811 S.E.2d 563, 2018 N.C. LEXIS 221 (2018).

Trial court did not err in instructing the jury on self-defense because the North Carolina’s decision in Richardson expressly held that an instruction including the disputed phrase “to kill” was correct. State v. Leaks, 270 N.C. App. 317, 840 S.E.2d 893, 2020 N.C. App. LEXIS 167 (2020), modified, aff'd, 379 N.C. 57 , 864 S.E.2d 217, 2021- NCSC-123, 2021 N.C. LEXIS 1015 (2021).

Lack of Self-Defense / Defense of Others Instruction. —

In a case in which a jury found defendant guilty of involuntary manslaughter, the lack of a self-defense/defense of others instruction deprived the jury of the ability to decide the issue of whether defendant’s participation in the altercation with the decedent was lawful. Therefore, because the trial court failed to include an instruction on self-defense/defense of others in its final mandate to the jury, defendant was entitled to a new trial. State v. Gomola, 257 N.C. App. 816, 810 S.E.2d 797, 2018 N.C. App. LEXIS 130 (2018).

Trial court erred in failing to instruct the jury on self-defense because, although there was conflicting testimony, the testimony of certain eyewitnesses that defendant was assaulted was sufficient to support defendant’s proposition that the assault on defendant gave rise to defendant’s reasonable apprehension of death or great bodily harm. The trial court’s error was prejudicial as there was a reasonable possibility that the jury could have found that defendant reasonably believed deadly force to be necessary. State v. Parks, 264 N.C. App. 112, 824 S.E.2d 881, 2019 N.C. App. LEXIS 136 (2019).

Error In Failure to Provide Jury Instruction. —

Trial court committed prejudicial error by failing to provide defendant’s requested jury instruction on the defense of habitation because despite numerous requests to leave and multiple orders from law enforcement, the victim continued to return to defendant’s property while repeatedly threatening him with bodily harm; the victim was within the curtilage of defendant’s property, and therefore, within his home, when defendant utilized defensive force against the victim. State v. Kuhns, 260 N.C. App. 281, 817 S.E.2d 828, 2018 N.C. App. LEXIS 646 (2018).

Defendant, who was convicted defendant of discharging a firearm into an occupied and operating vehicle and misdemeanor injury to personal property, was entitled to a self-defense instruction, including language that defendant had no duty to retreat or could defend and stand his ground where he was in a location where he had a lawful right to be. Defendant showed a reasonable possibility the jury could have returned a different verdict had the trial court given the requested and statutorily mandated self-defense and no-duty-to-retreat instruction to the jury. State v. Ayers, 261 N.C. App. 220, 819 S.E.2d 407, 2018 N.C. App. LEXIS 852 (2018).

In a case in which a jury found defendant guilty of second-degree murder, assault with a deadly weapon, and discharging a firearm into an occupied dwelling, the trial court committed prejudicial error by failing to include no duty to retreat and stand-your-ground provisions from its instructions on self-defense. From the evidence, a jury could reasonably infer that defendant reasonably believed the victim was armed at the time of the altercation. State v. Irabor, 262 N.C. App. 490, 822 S.E.2d 421, 2018 N.C. App. LEXIS 1099 (2018).

Defendant’s convictions were reversed and he was granted a new trial as the trial court erred by declining to instruct the jury on self-defense because defendant’s testimony supported his argument that he shot at the victim, and intended to do so; defendant’s testimony asserted that he only fired one shot at the victim as he did not intend to kill him, but was using the only means of protection he had to defend himself against the victim’s repeated attacks because he was recovering from a broken leg and was using crutches and a wheelchair; he had a reasonable belief that the victim would continue to severely injure him or even kill him; and defendant shot at the victim to strike the blow as a way to prevent further assault or death. State v. Coley, 263 N.C. App. 249, 822 S.E.2d 762, 2018 N.C. App. LEXIS 1218 (2018), aff'd, 375 N.C. 156 , 846 S.E.2d 455, 2020 N.C. LEXIS 686 (2020).

Sentencing.—

Four-level sentencing enhancement for possessing firearm in connection with another felony offense—assault with deadly weapon and discharging weapon into occupied property—that was imposed when defendant pleaded guilty to unlawful possession of firearm was to be reconsidered because defendant could not have been convicted of felonies if acting in self-defense under North Carolina law and parties below apparently overlooked security video that showed streaks of light rapidly moving through frame in defendant’s direction when defendant fired gun. United States v. Oliver, 2022 U.S. App. LEXIS 11301 (4th Cir. Apr. 26, 2022).

§ 14-51.4. Justification for defensive force not available.

The justification described in G.S. 14-51.2 and G.S. 14-51.3 is not available to a person who used defensive force and who:

  1. Was attempting to commit, committing, or escaping after the commission of a felony.
  2. Initially provokes the use of force against himself or herself. However, the person who initially provokes the use of force against himself or herself will be justified in using defensive force if either of the following occur:
    1. The force used by the person who was provoked is so serious that the person using defensive force reasonably believes that he or she was in imminent danger of death or serious bodily harm, the person using defensive force had no reasonable means to retreat, and the use of force which is likely to cause death or serious bodily harm to the person who was provoked was the only way to escape the danger.
    2. The person who used defensive force withdraws, in good faith, from physical contact with the person who was provoked, and indicates clearly that he or she desires to withdraw and terminate the use of force, but the person who was provoked continues or resumes the use of force.

History. 2011-268, s. 1.

Editor’s Note.

Session Laws 2011-268, s. 26, provides: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

CASE NOTES

Not Applicable to Offense Occurring Before Law Effective. —

While the trial court erred in instructing the jury regarding a statutory amendment to the law of self-defense that had an effective date after the date of the offenses in defendant’s case, defendant failed to meet his burden of showing that he was prejudiced by the instruction. State v. Rawlings, 236 N.C. App. 437, 762 S.E.2d 909, 2014 N.C. App. LEXIS 999 (2014), cert. dismissed, 369 N.C. 533 , 797 S.E.2d 287, 2017 N.C. LEXIS 196 (2017).

Jury Instructions. —

Trial court did not err by failing to allow the jury to consider whether defendant could have regained the right to use defensive force even though he had been the aggressor with the intent to use non-deadly force because such an instruction would not have constituted an accurate statement of the law arising upon the evidence; the record evidence demonstrated the complete absence of any evidence tending to show that defendant was the aggressor using non-deadly, as compared to deadly, force. State v. Holloman, 369 N.C. 615 , 799 S.E.2d 824, 2017 N.C. LEXIS 397 (2017).

Court of appeals improperly vacated defendant’s conviction because the self-defense instructions were not erroneous; the instruction that a defendant who was the aggressor using deadly force forfeited the right to use deadly force in self-defense and that a person who displayed a firearm to the opponent with the intent to use deadly force and provoked the use of deadly force was an aggressor for purposes of the law of self-defense did not constitute an inaccurate statement of the law. State v. Holloman, 369 N.C. 615 , 799 S.E.2d 824, 2017 N.C. LEXIS 397 (2017).

Trial court committed reversible error by instructing the jury that defendant would not be entitled to the full benefit of self-defense or defense of a family member if the jury found that he were the initial aggressor in the altercation with the victim, his son-in-law, because the undisputed evidence did not support that anyone other than the victim was the aggressor in the altercation, as defendant was woken up by noise in the middle of the night and found the victim strangling defendant’s daughter, the victim’s wife, in their bedroom and threatening to kill her. State v. Corbett, 269 N.C. App. 509, 839 S.E.2d 361, 2020 N.C. App. LEXIS 118 (2020), cert. dismissed, 375 N.C. 276 , 845 S.E.2d 793, 2020 N.C. LEXIS 742 (2020), aff'd, 376 N.C. 799 , 855 S.E.2d 228, 2021- NCSC-18, 2021 N.C. LEXIS 176 (2021).

Trial court erred in instructing the jury on the aggressor doctrine because the record disclosed no evidence tending to show that defendant brought on the difficulty or was the aggressor, and it necessarily followed that the instruction as it related to the evidence was partially inapplicable, incomplete, and misleading. The testimony at trial did not permit a reasonable jury to infer that defendant aggressively and willingly entered into the fight with the victim, where she expressly instructed him not to come to her residence, yet he disregarded her instructions and then physically assaulted her. State v. Hicks, 2022-NCCOA-263, 2022 N.C. App. LEXIS 267 (April 19, 2022).

Agressor Allowed To Regain Right To Utilize Defensive Force. —

Provisions of subsection (2)(a) allowing an aggressor to regain the right to use defensive force under certain circumstances do not apply in situations in which the aggressor initially uses deadly force against the person provoked. State v. Holloman, 369 N.C. 615 , 799 S.E.2d 824, 2017 N.C. LEXIS 397 (2017).

As the language of subsection (2)(a) reflects, the General Assembly, by enacting this legislation, appears to have allowed an aggressor to regain the right to utilize defensive force under certain circumstances; moreover, subsection (2)(a) does not, when read literally, appear to distinguish between situations in which the aggressor did or did not utilize deadly force. State v. Holloman, 369 N.C. 615 , 799 S.E.2d 824, 2017 N.C. LEXIS 397 (2017).

§ 14-52. Punishment for burglary.

Burglary in the first degree shall be punishable as a Class D felony, and burglary in the second degree shall be punishable as a Class G felony.

History. 1870-1, c. 222; Code, s. 994; 1889, c. 434, s. 2; Rev., s. 3330; C.S., s. 4233; 1941, c. 215, s. 1; 1949, c. 299, s. 2; 1973, c. 1201, s. 3; 1977, c. 871, s. 2; 1979, c. 672; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1151; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to eligibility of prisoners serving life sentence for parole, see G.S. 15A-1371 .

As to facilities and program for youthful offenders, see G.S. 148-49.10 et seq.

Legal Periodicals.

For article, “Capital Punishment and Life Imprisonment in North Carolina, 1946 to 1968: Implications for Abolition of the Death Penalty,” see 6 Wake Forest Intra. L. Rev. 417 (1970).

For comment on capital punishment and evolving standards of decency, see 16 Wake Forest L. Rev. 737 (1980).

For comment on capital punishment in North Carolina, see 59 N.C.L. Rev. 911 (1981).

CASE NOTES

Convictions Remain Valid. —

The Supreme Court of the United States has held that the imposition of the death penalty, under certain state statutes and in the application thereof, is unconstitutional. That decision does not affect the conviction but only the death sentence. State v. Davis, 282 N.C. 107 , 191 S.E.2d 664, 1972 N.C. LEXIS 892 (1972).

Sentence to Run Consecutively with Any Other Sentence. —

The plain meaning of the last sentence of this section is that a term imposed for burglary under the statute is to run consecutively with any other sentence being served by the defendant. State v. Warren, 313 N.C. 254 , 328 S.E.2d 256, 1985 N.C. LEXIS 1530 (1985).

Prison Term. —

In the absence of any aggravating or mitigating factors, the Fair Sentencing Act requires the imposition of the presumptive term when a prison term is imposed. Further, notwithstanding the Fair Sentencing Act, this section prohibits the trial judge from suspending a sentence or placing a defendant on probation for first-degree burglary. State v. Goodman, 71 N.C. App. 343, 322 S.E.2d 408, 1984 N.C. App. LEXIS 3863 (1984).

§ 14-53. Breaking out of dwelling house burglary.

If any person shall enter the dwelling house of another with intent to commit any felony or larceny therein, or being in such dwelling house, shall commit any felony or larceny therein, and shall, in either case, break out of such dwelling house in the nighttime, such person shall be punished as a Class D felon.

History. 12 Anne, c. 7, s. 3; R.C., c. 34, s. 8; Code, s. 995; Rev., s. 3332; C.S., s. 4234; 1969, c. 543, s. 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Larceny is a felony regardless of the value of property stolen, if committed pursuant to a violation of G.S. 14-51 , 14-53, 14-54 or 14-57. State v. Smith, 66 N.C. App. 570, 312 S.E.2d 222, 1984 N.C. App. LEXIS 2952 (1984).

Indictment Must Charge Breaking Out. —

One charged by indictment of breaking into a house cannot be convicted of breaking out, and a charge of the court to that effect is error. State v. McPherson, 70 N.C. 239 , 1874 N.C. LEXIS 198 (1874).

§ 14-54. Breaking or entering buildings generally.

  1. Any person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon.

    (a1) Any person who breaks or enters any building with intent to terrorize or injure an occupant of the building is guilty of a Class H felony.

  2. Any person who wrongfully breaks or enters any building is guilty of a Class 1 misdemeanor.
  3. As used in this section, “building” shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.

History. 1874-5, c. 166; 1879, c. 323; Code, s. 996; Rev., s. 3333; C.S., s. 4235; 1955, c. 1015; 1969, c. 543, s. 3; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 26; 1994, Ex. Sess., c. 24, s. 14(c); 2013-95, s. 1.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Effect of Amendments.

Session Laws 2013-95, s. 1, effective December 1, 2013, added subsection (a1). For applicability, see Editor’s note.

Legal Periodicals.

For brief comment on the 1955 amendment, see 33 N.C.L. Rev. 538 (1955).

For note on burglary in North Carolina, see 35 N.C.L. Rev. 98 (1956).

For comment on alleging and proving elements of offense under this section and G.S. 14-72 , see 3 Wake Forest Intra. L. Rev. 1 (1967).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For survey of 1980 criminal law, see 59 N.C.L. Rev. 1123 (1981).

For note discussing the evolution of the law governing double jeopardy and multiple punishments in a single prosecution context, particularly with regard to larceny and breaking and entering, in light of State v. Gardner, 315 N.C. 444 , 340 S.E.2d 701 (1986), see 65 N.C.L. Rev. 1267 (1987).

CASE NOTES

Analysis

I.General Consideration

Constitutionality. —

This section and G.S. 14-72 do not violate the equal protection or due process provisions of either the State or federal Constitutions. State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812, 1978 N.C. App. LEXIS 2730 (1978).

This section and G.S. 14-72 are reasonably related to valid legislative goals. The legislature has determined that breaking or entering with intent to commit larceny is a more serious crime than breaking or entering without the intent to commit larceny or any felony, and that larceny committed pursuant to breaking or entering is more serious than simple larceny. The legislature was acting within its authority in designating these crimes as felonies and in fixing punishment commensurate with their serious nature. State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812, 1978 N.C. App. LEXIS 2730 (1978).

This section and G.S. 14-72 meet the test of equal protection because all persons who fall under the terms of the statutes are subject to the same sentence. State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812, 1978 N.C. App. LEXIS 2730 (1978).

Double Jeopardy. —

Where a defendant has been tried for breaking and entering, and then the State tries him for a felony in which breaking and entering is an indispensable element, he has suffered double jeopardy. This is because the charge against him was increased after he had been tried for an offense consisting of an essential element of the greater offense. Wood v. Ross, 434 F.2d 297, 1970 U.S. App. LEXIS 6395 (4th Cir. 1970), vacated, 404 U.S. 244, 92 S. Ct. 402, 30 L. Ed. 2d 413, 1971 U.S. LEXIS 5 (1971).

Defendant’s convictions for kidnapping, non-felonious breaking or entering, and domestic criminal trespass did not violate the Double Jeopardy Clause where several elements contained within the applicable statutory language were not set out in the protective order that defendant had previously been held in contempt for violating. State v. Gilley, 135 N.C. App. 519, 522 S.E.2d 111, 1999 N.C. App. LEXIS 1177 (1999), cert. denied, 353 N.C. 528 , 549 S.E.2d 860, 2001 N.C. LEXIS 602 (2001).

Same — Larceny. —

Prosecution for larceny will not bar a subsequent prosecution for breaking and entering with intent to commit larceny, the larceny being necessarily distinct from the breaking and entering. State v. Hooker, 145 N.C. 581 , 59 S.E. 866, 1907 N.C. LEXIS 336 (1907).

Conviction and punishment for both felony breaking or entering and felonious larceny based upon the same breaking or entering in a single trial is not prohibited by the provisions of either the Constitution of the United States or the Constitution of North Carolina. State v. Edmondson, 316 N.C. 187 , 340 S.E.2d 110, 1986 N.C. LEXIS 1919 (1986).

A defendant may be tried for, convicted of, and punished separately for the crime of breaking or entering and the crime of felony larceny following that breaking or entering when the cases are jointly tried. State v. Gardner, 315 N.C. 444 , 340 S.E.2d 701, 1986 N.C. LEXIS 1900 (1986).

It was proper to convict defendant of felonious larceny even though he had been acquitted of felonious breaking or entering when the trial court had instructed the jury on guilt based upon the acting in concert theory. State v. Weaver, 79 N.C. App. 244, 339 S.E.2d 40, 1986 N.C. App. LEXIS 2029 , rev'd, 318 N.C. 400 , 348 S.E.2d 791, 1986 N.C. LEXIS 2657 (1986).

Breaking or entering with the intention to commit larceny under this section and larceny following a break-in under G.S. 14-72 are separate offenses for which punishment can be imposed without violating the constitutional restriction against double jeopardy. State v. Hall, 81 N.C. App. 650, 344 S.E.2d 811, 1986 N.C. App. LEXIS 2346 , cert. dismissed, 318 N.C. 510 , 349 S.E.2d 868, 1986 N.C. LEXIS 2707 (1986).

Same — Conspiracy. —

Convictions of both felonious conspiracy to commit felonious breaking and entering and felonious conspiracy to commit felonious larceny could not both be allowed to stand where there was evidence of only one agreement. State v. Hicks, 86 N.C. App. 36, 356 S.E.2d 595, 1987 N.C. App. LEXIS 2660 (1987).

Statutory Offense. —

The offense defined in this section, commonly referred to as house breaking or nonburglarious breaking, is a statutory, not a common-law, offense. State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510, 1969 N.C. App. LEXIS 1552 (1969).

Prior to the 1955 amendment, a nude defendant who entered the sleeping quarters of hospital nurses was not guilty of an offense under this section, where he did not flee when discovered but merely asked for a girl who worked at the hospital, and left upon demand without any attempt at larceny. State v. Cook, 242 N.C. 700 , 89 S.E.2d 383, 1955 N.C. LEXIS 660 (1955).

Effect and Application of 1969 Amendment. —

The title of the 1969 amendatory act, Session Laws 1969, c. 543, s. 7, expresses the legislative intent to clarify, not to repeal, “the laws relating to burglar and related offenses.” It is, therefore, clear that the 1969 act amended, rather than repealed, this section. State v. Melton, 7 N.C. App. 721, 173 S.E.2d 610, 1970 N.C. App. LEXIS 1765 (1970).

A defendant may be prosecuted, and if lawfully convicted may be punished, after the effective date of the 1969 amendment for a violation of this section as it existed prior to the effective date of that amendment, May 23, 1969, where the offense was committed prior to the effective date of May 23, 1969. State v. Melton, 7 N.C. App. 721, 173 S.E.2d 610, 1970 N.C. App. LEXIS 1765 (1970).

A defendant is entitled to have the jury instructed as to what facts they were required to find in order to find him guilty under the statute as it existed on the date the offense was alleged to have been committed, without reference to the less stringent requirements of the amended statute. State v. Melton, 7 N.C. App. 721, 173 S.E.2d 610, 1970 N.C. App. LEXIS 1765 (1970).

Construction With Armed Career Criminal Act. —

Burglary convictions under G.S. 14-54 were violent felonies for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C.S. § 924(e); district court did not violate defendant’s right to trial by jury under the Sixth Amendment to the U.S. Constitution or commit other error when it reviewed the record to determine if defendant was convicted of violating G.S. 14-54 on separate occasions without submitting that issue to a jury, found that he was subject to enhanced punishment under the ACCA, and sentenced him to fifteen years’ imprisonment, five years of supervised release, and a $100 special assessment. United States v. Thompson, 421 F.3d 278, 2005 U.S. App. LEXIS 19223 (4th Cir. 2005), cert. denied, 547 U.S. 1005, 126 S. Ct. 1463, 164 L. Ed. 2d 250, 2006 U.S. LEXIS 2065 (2006).

This section concerns only crimes of breaking and entering buildings and does not relate to the felony of larceny. The crime of larceny after breaking or entering is punishable as provided in G.S. 14-72 . State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586, 1972 N.C. App. LEXIS 2162 , cert. denied, 281 N.C. 625 , 190 S.E.2d 468, 1972 N.C. LEXIS 1141 (1972).

Evidence held to show a single conspiracy to feloniously break or enter various Durham retail stores within a four month period, and not 10 separate conspiracies to break or enter on 10 separate occasions. State v. Medlin, 86 N.C. App. 114, 357 S.E.2d 174, 1987 N.C. App. LEXIS 2691 (1987).

Guilty Plea Supported. —

Arresting officer’s testimony established a sufficient factual basis to support defendant’s guilty plea to breaking and entering; the officer testified that he found defendant’s truck near a burglarized residence, that he saw jewelry and boxes in the truck, that footprints in the snow led up to the residence where a window was broken, and that, during a search of the residence, the officer found defendant underneath a bed with a stolen rifle laying next to him. State v. Poore, 172 N.C. App. 839, 616 S.E.2d 639, 2005 N.C. App. LEXIS 1774 (2005).

Denial of Motion to Dismiss. —

Trial court did not err by denying defendant’s motion to dismiss a felony breaking and entering with the intent to terrorize or injure charge and a felony assault inflicting serious bodily injury charge. Defendant’s acts of entering the victim’s home uninvited, arguing with the victim, and then proceeding to violently attacking the victim were sufficient to support an inference that defendant entered the victim’s home with the intent to terrorize or injure the victim. State v. Griffin, 264 N.C. App. 490, 826 S.E.2d 253, 2019 N.C. App. LEXIS 259 (2019).

II.Elements of Offense

Felonious Breaking or Entering. —

Under the provisions of this section, if any person breaks and enters or enters any storehouse, shop or other building where any merchandise, chattel, money, valuable security or other personal property shall be, with the intent to commit the felony of larceny, he shall be guilty of a felony. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965); State v. Williams, 279 N.C. 663 , 185 S.E.2d 174, 1971 N.C. LEXIS 908 (1971).

The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein. State v. Litchford, 78 N.C. App. 722, 338 S.E.2d 575, 1986 N.C. App. LEXIS 2002 (1986); State v. White, 84 N.C. App. 299, 352 S.E.2d 261, 1987 N.C. App. LEXIS 3316 , cert. denied, 321 N.C. 123 , 361 S.E.2d 603, 1987 N.C. LEXIS 2532 (1987).

In respect to a dwelling, it is the entering otherwise than by a burglarious breaking, with intent to commit a felony, that constitutes the offense condemned by this section. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965); State v. Williams, 279 N.C. 663 , 185 S.E.2d 174, 1971 N.C. LEXIS 908 (1971); State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510, 1969 N.C. App. LEXIS 1552 (1969).

This section condemns three separate felonies as follows: (1) If any person, with intent to commit a felony or other infamous crime therein, shall break or enter the dwelling house of another otherwise than by a burglarious breaking, he shall be guilty of a felony; (2) if any person, with intent to commit a felony or other infamous crime therein, shall break or enter any storehouse, shop, warehouse, banking house, countinghouse or other building where any merchandise, chattel, money, valuable security or other personal property shall be, he shall be guilty of a felony; (3) if any person, with intent to commit a felony or other infamous crime therein, shall break or enter any uninhabited house, he shall be guilty of a felony. State v. McDowell, 1 N.C. App. 361, 161 S.E.2d 769, 1968 N.C. App. LEXIS 1079 (1968).

To support a conviction for felonious breaking and entering under this statute, there must exist substantial evidence of each of the following elements: (1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein. State v. Walton, 90 N.C. App. 532, 369 S.E.2d 101, 1988 N.C. App. LEXIS 568 (1988).

Court properly denied defendant’s motion to dismiss a felony breaking and entering charge because there was sufficient evidence that he intended to commit a felony (i.e. larceny) in the building he broke into, which was one of the essential elements of felonious breaking and entering under G.S. 14-54(a) ; the evidence tended to show that (1) the security system keypad to the building’s office was destroyed, (2) the contents of an employee’s desk had been removed and strewn around, (3) the keypad to the motion detector system for the office was destroyed, and (4) a computer monitor and processor were missing. State v. Cogdell, 2004 N.C. App. LEXIS 717 (N.C. Ct. App. May 4, 2004), op. withdrawn, 2004 N.C. App. LEXIS 823 (N.C. Ct. App. May 12, 2004), sub. op., 165 N.C. App. 368, 599 S.E.2d 570, 2004 N.C. App. LEXIS 1397 (2004).

Following defendant’s guilty plea to 18 U.S.C.S. § 922(g), district court properly applied ACCA enhancement because prior convictions for breaking and entering, in violation of G.S. 14-54(a) , qualified as ACCA predicate convictions under 18 U.S.C.S. § 924(e)(2)(B)(ii); neither U.S. Supreme Court’s decision in Mathis nor Stitt was superseding contrary decision of Supreme Court overruling Fourth Circuit’s explicit holding in Mungro that North Carolina breaking and entering qualified as violent felony for ACCA purposes.

Misdemeanor breaking and entering, subsection (b), requires only proof of the wrongful breaking or entry into any building. State v. Freeman, 307 N.C. 445 , 298 S.E.2d 376, 1983 N.C. LEXIS 1092 (1983); State v. Rushing, 61 N.C. App. 62, 300 S.E.2d 445, 1983 N.C. App. LEXIS 2575 , aff'd, 308 N.C. 804 , 303 S.E.2d 822, 1983 N.C. LEXIS 1305 (1983).

Trial court did not err in denying defendant’s motion to dismiss the charge of misdemeanor breaking and entering because defendant broke or entered into a trailer without the consent of the owners or the tenants; although defendant pointed to her lease agreement as establishing a claim of right, there was substantial evidence that defendant had no claim of right to enter the trailer, and viewed in the light most favorable to the State, that evidence was sufficient to allow a reasonable juror to conclude that defendant did not have a claim of right to enter the trailer. State v. Young, 195 N.C. App. 107, 671 S.E.2d 372, 2009 N.C. App. LEXIS 57 (2009).

Intent is not a prescribed element of wrongful breaking and entering under subsection (b) of this section. See State v. Currie, 19 N.C. App. 17, 198 S.E.2d 28, 1973 N.C. App. LEXIS 1555 (1973).

Identification of Owner of Property Not An Element. —

Relying on analogous statute, G.S. 14-54(a) , prohibiting breaking and entering, the appellate court found that the identification of the owner of the property was not an element of breaking into a coin-operated machine under G.S. 14-56.1 ; therefore, defendant was properly convicted of breaking into a coin-operated machine, although the State did not allege that the owner of the property was a natural person or a person capable of owning property. State v. Price, 170 N.C. App. 672, 613 S.E.2d 60, 2005 N.C. App. LEXIS 1085 (2005).

Distinction between misdemeanor breaking or entering and burglary rests on whether the unlawful breaking or entering was done with the intent to commit the felony named in the indictment. State v. Patton, 80 N.C. App. 302, 341 S.E.2d 744, 1986 N.C. App. LEXIS 2176 (1986).

Aiding and Abetting. —

Evidence held to support defendant’s convictions on breaking or entering charges, since he aided and abetted the principal perpetrators, and he was therefore equally culpable even though he did not physically enter the buildings. State v. Medlin, 86 N.C. App. 114, 357 S.E.2d 174, 1987 N.C. App. LEXIS 2691 (1987).

III.Breaking or Entering

Interpretation Not Broad. —

As interpreted by the North Carolina Supreme Court, G.S. 14-54 sweeps no more broadly than the generic elements of burglary. The North Carolina Supreme Court’s clarification that the offense requires either breaking or entering without a building owner’s consent brings it within the requirement of an “unlawful or unprivileged entry.” United States v. Mungro, 754 F.3d 267, 2014 U.S. App. LEXIS 10850 (4th Cir. 2014), cert. denied, 574 U.S. 1036, 135 S. Ct. 734, 190 L. Ed. 2d 458, 2014 U.S. LEXIS 7977 (2014), dismissed, 2021 U.S. Dist. LEXIS 49457 (W.D.N.C. Mar. 16, 2021).

“Unlawful Breaking or Entering” Essential to Both Offenses. —

The unlawful breaking or entering of a building described in this section is an essential element of both the felony and misdemeanor offenses. The distinction rests solely on whether the unlawful breaking or entering is done “with intent to commit a felony or other infamous crime therein.” State v. Jones, 264 N.C. 134 , 141 S.E.2d 27, 1965 N.C. LEXIS 1129 (1965).

This section defines a felony and defines a misdemeanor. The unlawful breaking or entering of a building described in this statute is an essential element of both offenses. The distinction rests solely on whether the unlawful breaking or entering is done “with intent to commit a felony or other infamous crime therein.” State v. Dickens, 272 N.C. 515 , 158 S.E.2d 614, 1968 N.C. LEXIS 691 (1968); State v. Williams, 2 N.C. App. 194, 162 S.E.2d 688, 1968 N.C. App. LEXIS 898 (1968); State v. Green, 2 N.C. App. 221, 162 S.E.2d 513, 1968 N.C. App. LEXIS 907 (1968).

But Both Breaking and Entering Need Not Be Shown. —

Evidence of a breaking when available is relevant, but the absence of such evidence is not a fatal defect of proof to support a conviction of breaking and entering under this section where there is proof of entry. Nor is proof of entry where there is proof of breaking necessary to support a conviction on a charge of breaking and entering under this section. Blakeney v. State, 2 N.C. App. 312, 163 S.E.2d 69, 1968 N.C. App. LEXIS 918 (1968).

Either a breaking or an entering with the requisite intent is sufficient to constitute a violation of this section. State v. Bronson, 10 N.C. App. 638, 179 S.E.2d 823, 1971 N.C. App. LEXIS 1687 (1971).

Since subsection (a) of this section is in the disjunctive, the contention that there is no evidence that defendant broke and entered a house was not well taken. State v. Houston, 19 N.C. App. 542, 199 S.E.2d 668, 1973 N.C. App. LEXIS 1698 , cert. denied, 284 N.C. 426 , 200 S.E.2d 662, 1973 N.C. LEXIS 890 (1973).

To convict a defendant of a violation of subsection (a) of this section, it is sufficient if the State’s evidence shows either a breaking or an entering; it need not show both. State v. O'Neal, 77 N.C. App. 600, 335 S.E.2d 920, 1985 N.C. App. LEXIS 4192 (1985).

To convict of violating this section, it is sufficient if the State’s evidence shows either a breaking or an entering; it need not show both. State v. Barnett, 41 N.C. App. 171, 254 S.E.2d 199, 1979 N.C. App. LEXIS 2374 (1979).

It is evident it was the intention of the legislature to make it a penal offense to willfully break into a storehouse where merchandise, etc., is kept, or into an uninhabited house, or to willfully enter into a dwelling house in the night otherwise than by breaking, with the intent to commit a felony. State v. Hughes, 86 N.C. 662 , 1882 N.C. LEXIS 266 (1882).

For conviction of felonious breaking or entering it is not necessary that the State show both a breaking and an entering; proof of either is sufficient if committed with the requisite felonious intent. State v. Helton, 79 N.C. App. 566, 339 S.E.2d 814, 1986 N.C. App. LEXIS 2082 (1986); State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986).

By the disjunctive language of this section, the State meets its burden by offering substantial evidence that defendant either “broke” or “entered” the building with the requisite unlawful intent. The State need not show both a breaking and an entering. State v. Myrick, 306 N.C. 110 , 291 S.E.2d 577, 1982 N.C. LEXIS 1385 (1982).

Because defendant was convicted under G.S. 14-54(a) of felonious breaking or entering, when defendant either broke into or entered each storage unit, his crime related to that unit was complete at that point regardless of whether he later returned to that unit. United States v. Carr, 592 F.3d 636, 2010 U.S. App. LEXIS 1714 (4th Cir.), cert. denied, 562 U.S. 844, 131 S. Ct. 82, 178 L. Ed. 2d 53, 2010 U.S. LEXIS 5910 (2010).

The absence of evidence of breaking does not constitute a fatal defect of proof. State v. Vester, 22 N.C. App. 16, 205 S.E.2d 556, 1974 N.C. App. LEXIS 2219 (1974), cert. denied, 285 N.C. 668 , 207 S.E.2d 760, 1974 N.C. LEXIS 1118 (1974), cert. denied, 419 U.S. 1116, 95 S. Ct. 795, 42 L. Ed. 2d 814, 1975 U.S. LEXIS 314 (1975).

Breaking Not Required Where Entry Shown. —

Housebreaking or nonburglarious breaking is a statutory and not a common-law offense, and under this section it is unlawful to enter a dwelling with intent to commit a felony therein, either with or without a breaking, and therefore while evidence of a breaking, when available, is always relevant proof of a breaking is not essential to sustain conviction. State v. Mumford, 227 N.C. 132 , 41 S.E.2d 201, 1947 N.C. LEXIS 356 (1947); State v. Best, 232 N.C. 575 , 61 S.E.2d 612, 1950 N.C. LEXIS 583 (1950).

A breaking is not now and has never been a prerequisite of guilt and proof thereof is not required. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965); State v. Williams, 279 N.C. 663 , 185 S.E.2d 174, 1971 N.C. LEXIS 908 (1971).

Under this section it is unlawful to break into a dwelling with intent to commit a felony therein. It is likewise unlawful to enter, with like intent, without a breaking. Hence, evidence of a breaking, when available, is always relevant, but absence of such evidence does not constitute a fatal defect of proof. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965); State v. Williams, 279 N.C. 663 , 185 S.E.2d 174, 1971 N.C. LEXIS 908 (1971).

Under this section it is unlawful to break into a dwelling with intent to commit a felony therein. It is likewise unlawful to enter, with like intent, without a breaking. State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510, 1969 N.C. App. LEXIS 1552 (1969).

A breaking is not a necessary element of the offense defined in this section and the offense defined in this section is complete, all other elements being present, if there was an entry with felonious intent. State v. Lassiter, 15 N.C. App. 265, 189 S.E.2d 798, 1972 N.C. App. LEXIS 1895 , cert. denied, 281 N.C. 761 , 191 S.E.2d 358, 1972 N.C. LEXIS 1205 (1972).

Where the State offered no evidence to raise an inference that any force was employed to gain entry to the victim’s apartment, and the victim testified concerning the type of lock on the only door to the apartment, but never stated that the door and two windows were closed when she went to sleep, and there was no evidence of forced entry, the defendant could not properly be convicted of burglary, but in view of evidence that the defendant entered the victim’s apartment with the intent to commit an assault upon her, he could be convicted of felonious breaking or entering. State v. Eldridge, 83 N.C. App. 312, 349 S.E.2d 881, 1986 N.C. App. LEXIS 2694 (1986).

Entry Not Required When Breaking Shown. —

The fact that the shaking of a door and its opening was not followed by a physical entrance into the building does not prevent a finding by the jury that defendants broke and entered the building. They had actually opened the door although they had not entered and the crime was complete upon the finding by the jury of the overt act and felonious intent which was amply supported by the evidence. State v. Nichols, 268 N.C. 152 , 150 S.E.2d 21, 1966 N.C. LEXIS 1147 (1966).

Breaking of store window with requisite intent to commit a felony therein, completes offense, even though the defendant is interrupted or otherwise abandons his purpose without actually entering the building. State v. Jones, 272 N.C. 108 , 157 S.E.2d 610, 1967 N.C. LEXIS 979 (1967); State v. Burgess, 1 N.C. App. 104, 160 S.E.2d 110, 1968 N.C. App. LEXIS 1017 (1968); State v. Wooten, 1 N.C. App. 240, 161 S.E.2d 59, 1968 N.C. App. LEXIS 1052 (1968).

Violation of subsection (a) of this section was complete when defendant broke open the door with the obvious intention to enter and take something from the store. State v. Avery, 48 N.C. App. 675, 269 S.E.2d 708, 1980 N.C. App. LEXIS 3318 (1980).

Breaking of store window, with the requisite intent to commit a felony therein, constitutes a breaking and completes the offense under subsection (a) of this section, even if defendant never physically enters the building. State v. O'Neal, 77 N.C. App. 600, 335 S.E.2d 920, 1985 N.C. App. LEXIS 4192 (1985).

Entry Prohibited by Separation Agreement. —

Bill of indictment charging defendant with felonious breaking and entering and felonious larceny of antique guns was not subject to being quashed on grounds that defendant was married to the occupier of the premises, where defendant’s entry of the premises was expressly prohibited by a marital separation agreement. State v. Lindley, 81 N.C. App. 490, 344 S.E.2d 291, 1986 N.C. App. LEXIS 2291 (1986).

Entry with Consent of Owner. —

In order to convict a person of housebreaking under this section there must have been an unlawful entry by the prisoner, and when the owner has procured the act to be done by the prisoner in company with and at the instance of the one selected by the owner for the purpose, the entry is lawful, and no crime is shown to have been committed, whatever the intent of the prisoner may have been at the time. State v. Goffney, 157 N.C. 624 , 73 S.E. 162, 1911 N.C. LEXIS 108 (1911).

While the statute does not make absence of consent an element of the offense, and entry with consent of the owner of a building, or anyone empowered to give effective consent to entry, cannot be the basis of a conviction for felonious entry. State v. Thompson, 59 N.C. App. 425, 297 S.E.2d 177, 1982 N.C. App. LEXIS 3163 (1982).

An entry is found to be a lawful one where the owner of the premises gives the defendant permission to enter, and where the entry is with the consent and at the instance of the owner. State v. Thompson, 8 N.C. App. 313, 174 S.E.2d 130, 1970 N.C. App. LEXIS 1547 (1970).

The entry proscribed by this section contemplates an unauthorized or unpermitted entry, and thus an entry with the consent of the owner is not an unlawful entry. State v. Boone, 39 N.C. App. 218, 249 S.E.2d 817, 1978 N.C. App. LEXIS 2361 (1978), modified, 297 N.C. 652 , 256 S.E.2d 683, 1979 N.C. LEXIS 1266 (1979).

An entry with consent of the owner of a building, or anyone empowered to give effective consent to entry, cannot be the basis for conviction of felonious entry under subsection (a). State v. Boone, 297 N.C. 652 , 256 S.E.2d 683, 1979 N.C. LEXIS 1266 (1979).

An entry is punishable under this statute only if it is wrongful, i.e., without the owner’s consent. State v. Wheeler, 70 N.C. App. 191, 319 S.E.2d 631, 1984 N.C. App. LEXIS 3650 (1984), cert. denied, 316 N.C. 201 , 341 S.E.2d 583, 1986 N.C. LEXIS 2047 (1986).

While defendant entered a law office with implied consent from the firm, that consent was void ab initio when defendant went into areas of the firm that were not open to the public so that defendant could commit theft; thus, defendant’s convictions for felonious breaking and entering and felonious larceny were supported by sufficient evidence. State v. Brooks, 178 N.C. App. 211, 631 S.E.2d 54, 2006 N.C. App. LEXIS 1334 (2006).

Trial court did not err in denying defendant juvenile’s motion to dismiss the charge of felonious breaking and entering and larceny and then finding defendant delinquent on the charges because the State presented substantial evidence of a felonious breaking and entry sufficient to convince a rational trier of fact beyond a reasonable doubt of defendant’s guilt; the office of a county cooperative extension service director was not held out to the public, and even if defendant had implied consent to enter the office because it was necessary for the general public to have access to it, stealing cash from the director’s purse constituted an act sufficient to render implied consent void ab initio. In re S.D.R., 191 N.C. App. 552, 664 S.E.2d 414, 2008 N.C. App. LEXIS 1481 (2008).

Entering Place of Business During Business Hours. —

A person cannot be convicted of felonious entry into a store or place of business during normal business hours through a door open to the public because there has not been an unauthorized or unpermitted entry. State v. Boone, 39 N.C. App. 218, 249 S.E.2d 817, 1978 N.C. App. LEXIS 2361 (1978), modified, 297 N.C. 652 , 256 S.E.2d 683, 1979 N.C. LEXIS 1266 (1979); State v. Speller, 44 N.C. App. 59, 259 S.E.2d 784, 1979 N.C. App. LEXIS 3169 (1979).

Where defendant entered a store at a time when it was open to the public, his entry was thus with the consent, implied if not express, of the owner and it cannot serve as the basis for a conviction for felonious entry. State v. Boone, 297 N.C. 652 , 256 S.E.2d 683, 1979 N.C. LEXIS 1266 (1979).

Concealment Voided Consent to Entry During Business Hours. —

Although a person cannot be convicted of felonious entry into a store or place of business during normal business hours through a door open to the public because there has not been an unauthorized or unpermitted entry, where defendant entered the building during normal business hours, but thereafter without the consent of the owner, he went into an area not open to the public and there secreted himself, and remained concealed until well beyond the closing of business hours for the store for the purpose of participating in a theft, these acts voided any consent to the entry. Going into an area not open to the public and remaining hidden there past closing hours made the entry through the front door open for business unlawful. State v. Speller, 44 N.C. App. 59, 259 S.E.2d 784, 1979 N.C. App. LEXIS 3169 (1979).

Where “consent” is obtained by fraud or trickery, the law treats defendant’s action as a “constructive breaking,” sufficient to sustain a conviction under this section. State v. Wheeler, 70 N.C. App. 191, 319 S.E.2d 631, 1984 N.C. App. LEXIS 3650 (1984), cert. denied, 316 N.C. 201 , 341 S.E.2d 583, 1986 N.C. LEXIS 2047 (1986).

Any Act of Force, However Slight, Constitutes Breaking. —

A breaking in the law of burglary constitutes any act of force, however slight, employed to effect an entrance through any usual or unusual place of ingress, whether open, partly open, or closed. State v. Myrick, 306 N.C. 110 , 291 S.E.2d 577, 1982 N.C. LEXIS 1385 (1982).

Unlocking Door with Key. —

There is a sufficient breaking where a person enters a building with a felonious intent by unlocking a door with a key. State v. Knight, 261 N.C. 17 , 134 S.E.2d 101, 1964 N.C. LEXIS 412 (1964).

Dislocation of a door of a grill from its locked position was a sufficient breaking even if defendant did not otherwise enter the building. State v. Myrick, 306 N.C. 110 , 291 S.E.2d 577, 1982 N.C. LEXIS 1385 (1982).

Putting one’s arm through a tear in a screen constitutes an entry. State v. O'Neal, 77 N.C. App. 600, 335 S.E.2d 920, 1985 N.C. App. LEXIS 4192 (1985).

Damage to Door or Window Not Required. —

The State is not required to offer evidence of damage to a door or window. A breaking or entering condemned by the statute may be shown to be a mere pushing or pulling open of an unlocked door or the raising or lowering of an unlocked window, or the opening of a locked door with a key. State v. Bronson, 10 N.C. App. 638, 179 S.E.2d 823, 1971 N.C. App. LEXIS 1687 (1971).

Possession of Stolen Goods Conviction Vacated. —Defendant’s Prior Convictions for Breaking or Entering Multiple Subunits at Single Complex Constituted Separate Occasions for Purposes of the Federal Armed Career Criminal Act. —

Defendant was properly sentenced as an armed career criminal under the Armed Career Criminal Act (ACCA) because his prior convictions for breaking or entering multiple subunits at a single complex constituted separate occasions for purposes of the ACCA; the crimes were committed in 13 different locations (i.e., the separate storage units), the crimes had 10 different victims, and as he committed each of the 13 crimes, defendant had the opportunity to make a conscious and knowing decision to cease and desist his criminal behavior or engage in yet another crime. United States v. Carr, 592 F.3d 636, 2010 U.S. App. LEXIS 1714 (4th Cir.), cert. denied, 562 U.S. 844, 131 S. Ct. 82, 178 L. Ed. 2d 53, 2010 U.S. LEXIS 5910 (2010).

Dismissal Proper. —

Trial court did not err in dismissing the felonious breaking and entering against defendant, tried on theory of acting in concert, because no evidence linked defendant to the unknown man seen carrying property of another in a yard, defendant took no action to aid the unknown man, and the two did not flee from the yard together after police arrived. State v. Bowden, 216 N.C. App. 275, 717 S.E.2d 230, 2011 N.C. App. LEXIS 2145 (2011).

IV.Building

“Building” should be given its common and usual meaning. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Items listed in this section denote qualities of permanence and immobility, while those listed in G.S. 14-56 are characterized by a high degree of mobility. State v. Douglas, 54 N.C. App. 85, 282 S.E.2d 832, 1981 N.C. App. LEXIS 2795 (1981); State v. Bost, 55 N.C. App. 612, 286 S.E.2d 632, 1982 N.C. App. LEXIS 2242 (1982).

Dwelling house is the place wherein a man reposes. State v. Clinton, 3 N.C. App. 571, 165 S.E.2d 343, 1969 N.C. App. LEXIS 1623 (1969).

Every permanent building in which the owner or renter and his family, or any member thereof, usually and habitually dwell and sleep is deemed a dwelling. State v. Clinton, 3 N.C. App. 571, 165 S.E.2d 343, 1969 N.C. App. LEXIS 1623 (1969).

Room in a rooming house is included in the meaning of the term “dwelling house.” State v. Clinton, 3 N.C. App. 571, 165 S.E.2d 343, 1969 N.C. App. LEXIS 1623 (1969).

Occupancy is not an element of this section and § 14-72. State v. Young, 60 N.C. App. 705, 299 S.E.2d 834, 1983 N.C. App. LEXIS 2516 (1983).

Indictment was sufficient under G.S. 15A-924(a)(5) to charge defendant with felonious breaking and entering under G.S. 14-54(a) because the statement that defendant did break and enter a building used as a residence was surplusage as whether a building was a residence or not was not an essential element of the crime; the garage that defendant allegedly broke into was within the curtilage of the residence although it was an independent structure. State v. Jones, 188 N.C. App. 562, 655 S.E.2d 915, 2008 N.C. App. LEXIS 200 (2008).

Mobile Home. —

An unoccupied mobile home not affixed to the premises and intended for retail sale is a “building” within the meaning of this section. State v. Douglas, 51 N.C. App. 594, 277 S.E.2d 467, 1981 N.C. App. LEXIS 2295 (1981), aff'd, 304 N.C. 713 , 285 S.E.2d 802, 1982 N.C. LEXIS 1231 (1982).

An unoccupied mobile home located on a dealer’s lot is a “building” within the meaning of this section. State v. Douglas, 54 N.C. App. 85, 282 S.E.2d 832, 1981 N.C. App. LEXIS 2795 (1981).

A mobile home, as used in the sense of a residence, distinctly differs in terms of mobility from a “trailer” which is used to haul goods and personal property from place to place or for camping or vacation purposes, as the chief quality of the latter is its mobility, while the former is normally anchored to a foundation and left stationary; thus, a mobile home is a “building” within the meaning of this section and is not covered by G.S. 14-56 . State v. Douglas, 54 N.C. App. 85, 282 S.E.2d 832, 1981 N.C. App. LEXIS 2795 (1981).

The mere fact of a mobile home’s capability of being transported from place to place on wheels attached to its frame should not remove it from the ambit of this section. State v. Douglas, 51 N.C. App. 594, 277 S.E.2d 467, 1981 N.C. App. LEXIS 2295 (1981), aff'd, 304 N.C. 713 , 285 S.E.2d 802, 1982 N.C. LEXIS 1231 (1982).

“Trailers” and Other Items Named in G.S. 14-56 . —

Whether “trailers,” “railroad cars” or other items specifically named in G.S. 14-56 qualify as “buildings” under this section depends upon the circumstances in each case; they may qualify as “buildings” if under the circumstances of their use and location at the time in question they have lost their character of mobility and have attained a character of permanence. State v. Bost, 55 N.C. App. 612, 286 S.E.2d 632, 1982 N.C. App. LEXIS 2242 (1982).

Clerk’s Office. —

The office of the clerk of a superior court in a county courthouse is a “structure designed to house or secure within it any activity or property” within the meaning of subsection (c) of this section and therefore is by statutory definition a “building” under subsection (b) of this section. Even though the office may be open to the public, it is still protected by the statute during the time that it is not open for public business. State v. Winston, 45 N.C. App. 99, 262 S.E.2d 331, 1980 N.C. App. LEXIS 2566 (1980).

Video store office containing a desk and safe behind a closed but not locked door was not public, although members of the public could enter the office with a video store employee. Further, any implied consent for defendant to enter the office was rendered void ab initio by defendant’s theft of the contents of the safe. State v. Rawlinson, 198 N.C. App. 600, 679 S.E.2d 878, 2009 N.C. App. LEXIS 1341 (2009).

Several connected buildings, with different building numbers, constructed at different times, and treated as separate buildings by those using them, but connected by passageways that permitted unrestricted access from one building to the other, were properly treated as separate buildings for purposes of this section. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Fenced-In Area. —

The word “building” in this section is restricted to that which has, or is intended to have, one or more walls and a roof, thus, as any structure must be ejusdem generis with this definition, a fenced-in area is not contemplated by this section. State v. Gamble, 56 N.C. App. 55, 286 S.E.2d 804, 1982 N.C. App. LEXIS 2310 (1982).

V.Intent

Felonious intent is an essential element of the crime defined in this section. It must be alleged and proved, and the felonious intent proven must be the felonious intent alleged, which is the “intent to steal.” State v. Friddle, 223 N.C. 258 , 25 S.E.2d 751, 1943 N.C. LEXIS 251 (1943); State v. Jones, 264 N.C. 134 , 141 S.E.2d 27, 1965 N.C. LEXIS 1129 (1965); State v. Crawford, 3 N.C. App. 337, 164 S.E.2d 625, 1968 N.C. App. LEXIS 858 (1968); State v. Jackson, 4 N.C. App. 459, 167 S.E.2d 20, 1969 N.C. App. LEXIS 1518 (1969).

In order to convict under this section it is necessary to show intent and a failure to show intent leaves no other course except acquittal. State v. Spear, 164 N.C. 452 , 79 S.E. 869, 1913 N.C. LEXIS 86 (1913). See also State v. Crisp, 188 N.C. 799 , 125 S.E. 543, 1924 N.C. LEXIS 176 (1924).

In order to satisfy the felony requirement of this section it must be made to appear that there was a breaking or entering into a designated building or room “with intent to commit a felony or other infamous crime therein.” State v. Andrews, 246 N.C. 561 , 99 S.E.2d 745, 1957 N.C. LEXIS 482 (1957); State v. Walton, 90 N.C. App. 532, 369 S.E.2d 101, 1988 N.C. App. LEXIS 568 (1988).

The crime defined in this section is complete, all other elements being present, if there was an entry with felonious intent. State v. Vines, 262 N.C. 747 , 138 S.E.2d 630, 1964 N.C. LEXIS 745 (1964).

To convict a person of the felony defined in this section, the State must satisfy the jury from the evidence beyond a reasonable doubt that a building described in this section was broken into or entered “with intent to commit a felony or other infamous crime therein.” State v. Jones, 264 N.C. 134 , 141 S.E.2d 27, 1965 N.C. LEXIS 1129 (1965).

First-degree burglary and second-degree burglary under G.S. 14-51 and felonious breaking and entering under subsection (a) of this section require, for conviction, proof of intent to commit a felony. State v. Freeman, 307 N.C. 445 , 298 S.E.2d 376, 1983 N.C. LEXIS 1092 (1983).

Intent Must Exist at Time of Breaking or Entering. —

An essential element of the crime stated in subsection (a) of this section is that the intent exist at the time of the breaking or entering. State v. Hill, 38 N.C. App. 75, 247 S.E.2d 295, 1978 N.C. App. LEXIS 3103 (1978); State v. Costigan, 51 N.C. App. 442, 276 S.E.2d 467, 1981 N.C. App. LEXIS 2248 (1981).

The offense of burglary is the breaking and entering with the requisite intent. It is complete when the building is entered or it does not occur. A breaking and an entry without the intent to commit a felony in the building is not converted into burglary by the subsequent commission therein of a felony subsequently conceived. State v. Freeman, 307 N.C. 445 , 298 S.E.2d 376, 1983 N.C. LEXIS 1092 (1983).

Completion of Intended Felony or Larceny Not Required. —

Under this section, if a person breaks or enters one of the buildings described therein with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before he accomplishes his felonious intent or whether, if successful, the goods he succeeds in stealing have a value in excess of $200.00. In short, his criminal conduct is not determinable on the basis of the success of his felonious venture. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965); State v. Williams, 279 N.C. 663 , 185 S.E.2d 174, 1971 N.C. LEXIS 908 (1971); State v. Smith, 266 N.C. 747 , 147 S.E.2d 165, 1966 N.C. LEXIS 1435 (1966); State v. Nichols, 268 N.C. 152 , 150 S.E.2d 21, 1966 N.C. LEXIS 1147 (1966); State v. Cloud, 271 N.C. 591 , 157 S.E.2d 12, 1967 N.C. LEXIS 1249 (1967); State v. Crawford, 3 N.C. App. 337, 164 S.E.2d 625, 1968 N.C. App. LEXIS 858 (1968).

If a person breaks or enters with intent to commit the crime of larceny, he does so with intent to commit a felony, without reference to whether he is completely frustrated before he accomplishes his felonious intent. His criminal conduct is not determinable on the basis of the success of his felonious venture. State v. Wooten, 1 N.C. App. 240, 161 S.E.2d 59, 1968 N.C. App. LEXIS 1052 (1968); State v. Sawyer, 283 N.C. 289 , 196 S.E.2d 250, 1973 N.C. LEXIS 958 (1973); State v. Costigan, 51 N.C. App. 442, 276 S.E.2d 467, 1981 N.C. App. LEXIS 2248 (1981).

If there is a breaking and entering with the felonious intent to steal, the accomplishment of the felonious intent is not a prerequisite of guilt. State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972); State v. Harlow, 16 N.C. App. 312, 191 S.E.2d 900, 1972 N.C. App. LEXIS 1693 (1972).

The crime of larceny has an element not present in the crime of felonious breaking or entering, to wit, a wrongful taking and carrying away of the personal property of another. As a result it was not inconsistent for the jury to determine that the defendant entered a mobile home with the intent to commit larceny yet find that no larceny was in fact committed. State v. Brown, 308 N.C. 181 , 301 S.E.2d 89, 1983 N.C. LEXIS 1124 (1983).

To prove a defendant guilty of felonious breaking or entering, it is not necessary to prove that he was also guilty of larceny. Rather it is only necessary to prove that the defendant intended to commit a felony, to wit, larceny. State v. Edwards, 310 N.C. 142 , 310 S.E.2d 610, 1984 N.C. LEXIS 1562 (1984).

Intent to Commit Crime May Be Inferred from Its Commission. —

The intent to commit larceny may be inferred from the fact that defendant committed larceny. State v. Thompkins, 83 N.C. App. 42, 348 S.E.2d 605, 1986 N.C. App. LEXIS 2640 (1986).

Evidence that the defendant committed rape after he entered the building is evidence he intended to commit rape at the time he broke into the building. State v. Gray, 322 N.C. 457 , 368 S.E.2d 627, 1988 N.C. LEXIS 360 (1988).

Effect of Arrest of Judgment on Conviction Under G.S. 14-72(b). —

The trial court’s arrest of judgment on defendant’s conviction for felonious larceny under G.S. 14-72(b) had no effect on his conviction for felonious breaking or entering since it is not necessary for conviction of breaking and entering under subsection (a) of this section that a felony or larceny actually be committed in the building broken into; it is merely the intent at the time of the breaking or entering to commit the felony or larceny within the building that is required. State v. Stafford, 45 N.C. App. 297, 262 S.E.2d 695, 1980 N.C. App. LEXIS 2629 (1980).

Intent May Be Inferred from Circumstances. —

Without other explanation for breaking into building or a showing of the owner’s consent, intent may be inferred from the circumstances. State v. Myrick, 306 N.C. 110 , 291 S.E.2d 577, 1982 N.C. LEXIS 1385 (1982).

Intent is a mental attitude which must ordinarily be proved by circumstances from which it can be inferred. State v. Bronson, 10 N.C. App. 638, 179 S.E.2d 823, 1971 N.C. App. LEXIS 1687 (1971); State v. Harlow, 16 N.C. App. 312, 191 S.E.2d 900, 1972 N.C. App. LEXIS 1693 (1972); State v. Costigan, 51 N.C. App. 442, 276 S.E.2d 467, 1981 N.C. App. LEXIS 2248 (1981).

In determining the presence or absence of the element of intent the jury may consider the acts and conduct of defendant and the general circumstances existing at the time of the alleged commission of the offense. State v. Bronson, 10 N.C. App. 638, 179 S.E.2d 823, 1971 N.C. App. LEXIS 1687 (1971).

The jury may infer the requisite specific intent to commit larceny at the time of the breaking or entering from the acts and conduct of defendant and the general circumstances existing at the time of the alleged commission of the offense charged. State v. Costigan, 51 N.C. App. 442, 276 S.E.2d 467, 1981 N.C. App. LEXIS 2248 (1981).

Where defendant offered no exculpatory evidence as to his intent when he entered a young girl’s room through her bedroom window, that intent could properly be inferred from the circumstances and the court properly denied his motion to dismiss the charge of felony breaking and entering for insufficient evidence. State v. Roberts, 135 N.C. App. 690, 522 S.E.2d 130, 1999 N.C. App. LEXIS 1245 (1999).

Trial court properly denied motion to dismiss the charge of felonious breaking and entering, under G.S. 14-54(a) where substantial evidence existed that defendant and two accomplices entered a locked building without permission in the early morning hours, they ransacked the inside of the building, and they placed items that belonged to the business located in the building into bags. The jury could infer that defendant and his accomplices intended to commit larceny. State v. Garcia, 174 N.C. App. 498, 621 S.E.2d 292, 2005 N.C. App. LEXIS 2493 (2005).

And Conduct Within Building. —

The intent with which defendant broke and entered, or entered, may be found by the jury from what he did within the building. State v. Bronson, 10 N.C. App. 638, 179 S.E.2d 823, 1971 N.C. App. LEXIS 1687 (1971).

Evidence of what a defendant does after he breaks and enters a house is evidence of his intent at the time of the breaking and entering. State v. Gray, 322 N.C. 457 , 368 S.E.2d 627, 1988 N.C. LEXIS 360 (1988).

Evidence tending to show an unexplained breaking or entering into a dwelling at night, accompanied by flight when discovered, is sufficient under the law to support the inference that the breaking or entering was done with the intent to steal or commit a felony. The intent inferred is sufficient under the law to support a charge of felonious breaking or entering and warrant its submission to the jury. State v. Salters, 65 N.C. App. 31, 308 S.E.2d 512, 1983 N.C. App. LEXIS 3396 (1983).

Dual Intent. —

When an intruder unlawfully enters one’s home and commits two crimes therein, it is illogical to presume that he entered for one purpose only. At least a jury should not be precluded from finding that he entered with a dual purpose. State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Where rape victim testified that prior to defendant’s unlawful entry into her home on the night in question, she had seven dollars in her purse and that upon defendant’s departure she discovered that the money was missing from her purse, this evidence was sufficient for the jury to find that defendant entered her home for the purpose of committing larceny. State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Misdemeanor Instruction Not Warranted Where Intent to Murder Proven. —

The submission of misdemeanor breaking or entering as a lesser-included offense of first-degree burglary was not warranted where the evidence was clear and positive that defendant entered the mobile home with the intent to commit murder. State v. Lawrence, 352 N.C. 1 , 530 S.E.2d 807, 2000 N.C. LEXIS 441 (2000).

As to sufficiency of evidence to justify an inference of intent to rape, see State v. Rushing, 61 N.C. App. 62, 300 S.E.2d 445, 1983 N.C. App. LEXIS 2575 , aff'd, 308 N.C. 804 , 303 S.E.2d 822, 1983 N.C. LEXIS 1305 (1983).

Intoxication as Defense. —

Intoxication which renders an offender utterly unable to form the required specific intent may be shown as a defense. State v. Bronson, 10 N.C. App. 638, 179 S.E.2d 823, 1971 N.C. App. LEXIS 1687 (1971).

Voluntary intoxication is not a defense. State v. Tillman, 22 N.C. App. 688, 207 S.E.2d 316, 1974 N.C. App. LEXIS 2419 (1974).

Insufficient Evidence of Intent. —

Trial court erred by considering breaking or entering a building with intent to terrorize under G.S. 14-54(a1) to be a supported felony for first-degree burglary, and therefore defendant’s first-degree burglary conviction was reversed; sufficient evidence was not presented to support the inference that defendant broke and entered the victims’ residence with the intent to subsequently break or enter another building within the residence and therein terrorize the victims. State v. McDaris, 274 N.C. App. 339, 852 S.E.2d 403, 2020 N.C. App. LEXIS 798 (2020).

VI.Larceny

Value of Stolen Property Immaterial. —

Larceny by breaking and entering a building is a felony without regard to the value of the stolen property. State v. Stubbs, 266 N.C. 274 , 145 S.E.2d 896, 1966 N.C. LEXIS 1324 (1966).

Larceny is a felony regardless of the value of property stolen, if committed pursuant to a violation of G.S. 14-51 , 14-53, 14-54 or 14-57. State v. Smith, 66 N.C. App. 570, 312 S.E.2d 222, 1984 N.C. App. LEXIS 2952 (1984).

Where larceny is committed pursuant to breaking and entering, it constitutes a felony without regard to the value of the property in question. State v. Richardson, 8 N.C. App. 298, 174 S.E.2d 77, 1970 N.C. App. LEXIS 1541 (1970).

Evidence was legally sufficient to support defendant’s conviction for felonious larceny under G.S. 14-72(a) because although the value of the items taken was less than $1,000, the crime was elevated to a felony when it was committed pursuant to a breaking and entering under G.S. 14-54 . State v. Jones, 188 N.C. App. 562, 655 S.E.2d 915, 2008 N.C. App. LEXIS 200 (2008).

Ownership of Property Is Immaterial. —

It is incumbent upon the State to establish that, at the time the defendant broke and entered, he intended to steal something. However, it is not incumbent upon the State to establish the ownership of the property which he intended to steal, the particular ownership being immaterial. State v. Crawford, 3 N.C. App. 337, 164 S.E.2d 625, 1968 N.C. App. LEXIS 858 (1968); State v. Young, 60 N.C. App. 705, 299 S.E.2d 834, 1983 N.C. App. LEXIS 2516 (1983).

Nonownership Not a Defense. —

It is no defense to a larceny charge that title to the property taken is in one other than the person from whom it was taken. The same rule applies to breaking and entering with larcenous intent. State v. Richardson, 8 N.C. App. 298, 174 S.E.2d 77, 1970 N.C. App. LEXIS 1541 (1970).

Owner of Property Sought to Be Stolen Need Not Be Identified. —

If there is a breaking and entering with the felonious intent to steal, the identification of the owner of the personal property sought to be stolen is not a prerequisite to guilt. State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972).

VII.Indictment

Indictment Must Sufficiently Describe Crime. —

The bill of indictment under this section must describe the crime alleged in such detail as would enable the defendant to plead his conviction or acquittal thereof as a bar to another prosecution for the same offense. State v. Carroll, 10 N.C. App. 143, 178 S.E.2d 10, 1970 N.C. App. LEXIS 1210 (1970).

Where larceny charge should have been dismissed by the trial court due to a variance between the indictment and the evidence at trial, a breaking and entering felony conviction was vacated. State v. Craycraft, 152 N.C. App. 211, 567 S.E.2d 206, 2002 N.C. App. LEXIS 892 (2002).

Intended Felony Must Be Alleged. —

An indictment charging the offense of felonious breaking or entering is sufficient only if it alleges the particular felony which is intended to be committed. State v. Vick, 70 N.C. App. 338, 319 S.E.2d 327 (1984), overruled as stated in State v. Silas, 360 N.C. 377 , 627 S.E.2d 604 (2006), see the following case note.

Overruling of Case Law on Indictment Requirements. —

There is no requirement that an indictment for felonious breaking or entering contain specific allegations of the intended felony, and State v. Vick, 70 N.C. App. 338, 319 S.E.2d 327 (N.C. Ct. App. 1984), is overruled insofar as it is inconsistent with this; however, if an indictment does specifically allege the intended felony, G.S. 15A-923(e) mandates such allegations may not be amended. State v. Silas, 360 N.C. 377 , 627 S.E.2d 604, 2006 N.C. LEXIS 26 (2006).

Description of Building. —

In an indictment under this section punishing the breaking and entering of buildings, a building must be described as to show that it is within the language of the statute and so as to identify it with reasonable particularity so as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense. State v. Sellers, 273 N.C. 641 , 161 S.E.2d 15, 1968 N.C. LEXIS 643 (1968).

Particular identification in the indictment of the building alleged to have been broken into and entered is desirable. State v. Melton, 7 N.C. App. 721, 173 S.E.2d 610, 1970 N.C. App. LEXIS 1765 (1970).

In light of the growth in population and in the number of structures (domestic, business and governmental), the prosecuting officers of this State would be well advised to identify the subject premises in a bill of indictment under this section by street address, highway address, rural road address or some clear description and designation to set the subject premises apart from like and other structures described in Article 14 of this Chapter. State v. Carroll, 10 N.C. App. 143, 178 S.E.2d 10, 1970 N.C. App. LEXIS 1210 (1970).

Under this section, the breaking or entering of any building with intent to commit a felony or larceny therein constitutes a felony. Thus the necessity for describing the building in the bill of indictment for the purpose of showing that it is within the statute no longer exists. It remains necessary, however, to identify the building with reasonable particularity so as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense. State v. Carroll, 10 N.C. App. 143, 178 S.E.2d 10, 1970 N.C. App. LEXIS 1210 (1970).

An indictment under this section is sufficient if the building allegedly broken and entered is described sufficiently to show that it is within the language of the section and to identify it with reasonable particularity so that defendant may prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense. State v. Vawter, 33 N.C. App. 131, 234 S.E.2d 438, 1977 N.C. App. LEXIS 2114 (1977).

The recommended practice is to identify the location of the subject premises by street address, rural road address or some other clear description. However, an indictment under this section is sufficient if the building allegedly broken and entered is described sufficiently to show that it is within the language of the statute and to identify it with reasonable particularity so that defendant may prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense. State v. Baker, 34 N.C. App. 434, 238 S.E.2d 648, 1977 N.C. App. LEXIS 1714 (1977).

Felonious breaking and entering indictments were sufficient to reasonably identify the building in which the crime was committed, as required by G.S. 14-54 , because, although the victim owned several buildings, including six rental houses, the indictment identified the building as the one in which defendant resided. State v. Ly, 189 N.C. App. 422, 658 S.E.2d 300, 2008 N.C. App. LEXIS 650 (2008).

Same — Bill of Particulars. —

If a defendant is in doubt as to the identity of the building he is charged with having feloniously broken into and entered, he can call for a bill of particulars. State v. Sellers, 273 N.C. 641 , 161 S.E.2d 15, 1968 N.C. LEXIS 643 (1968).

“Unlawfully Breaking” Charges Intent. —

An indictment under this section for housebreaking is sufficient when charging “that defendant did break and enter (otherwise than by burglarious breaking) the storeroom and house, etc., with intent to commit a felony, to wit, with intent the goods, etc., feloniously to steal, etc.,” and is not defective for the failure to allege that the breaking and entering was feloniously done, there being no distinction between the words “unlawfully breaking” and “entering with the intent to commit a felony.” State v. Goffney, 157 N.C. 624 , 73 S.E. 162, 1911 N.C. LEXIS 108 (1911).

Indictment Charging Intent to Commit More Than One Offense. —

An indictment for entering a house with an intent to commit a felony or other infamous crime is not defective because it charges an intent to commit more than one offense. State v. Christmas, 101 N.C. 749 , 8 S.E. 361, 1888 N.C. LEXIS 137 (1888).

Defendant was improperly convicted and sentenced for both larceny of a firearm and felonious larceny of that same firearm pursuant to a breaking or entering; therefore, his felonious larceny pursuant to a breaking or entering charge was reversed and his sentence on that charge was vacated. State v. Adams, 331 N.C. 317 , 416 S.E.2d 380, 1992 N.C. LEXIS 279 (1992).

Ownership. —

A person is guilty of feloniously breaking and entering a dwelling house if he unlawfully breaks and enters such dwelling house with the intent to steal personal property located therein without reference to the ownership thereof. State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972).

But see State v. Crawford, 29 N.C. App. 117, 223 S.E.2d 534 (1976) which held that, in a prosecution for breaking and entering, and felonious larceny, the allegations of ownership described in a bill of indictment are essential and proof of ownership should not vary from ownership as alleged. State v. Crawford, 29 N.C. App. 117, 223 S.E.2d 534, 1976 N.C. App. LEXIS 2388 (1976).

Conviction of Lesser Degree of Offense Charged. —

While it is error for the court to permit the jury to convict based on some abstract theory not supported by the bill of indictment, indictment charging defendant with larceny pursuant to a burglary was sufficient to uphold defendant’s conviction for larceny pursuant to a breaking or entering, as felonious breaking or entering is a lesser degree of the offense of second degree burglary, and G.S. 15-170 provides that upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a lesser degree of the same crime. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

Indictment Held Insufficient. —

Defendant was improperly convicted of felonious larceny because the indictment, which failed to allege ownership of the handgun, was fatally defective. State v. McNeil, 209 N.C. App. 654, 707 S.E.2d 674, 2011 N.C. App. LEXIS 296 (2011).

Indictment Held Sufficient. —

See Doss v. North Carolina, 252 F. Supp. 298, 1966 U.S. Dist. LEXIS 7799 (M.D.N.C. 1966).

The indictment charged store-breaking, larceny and receiving in the language of the statute under which it was drawn, G.S. 14-72 and this section, and contained the elements of the offense intended to be charged, and sufficiently informed the petitioner of the crime with which he was charged so that he could adequately prepare his defense and could plead the judgment as a bar to any subsequent prosecution for the same offense. Nothing more was required. Harris v. North Carolina, 320 F. Supp. 770, 1970 U.S. Dist. LEXIS 12236 (M.D.N.C. 1970), aff'd, 435 F.2d 1305, 1971 U.S. App. LEXIS 12507 (4th Cir. 1971).

Though not sufficient as an indictment for burglary, an indictment, under which the defendant was tried for and convicted of burglary in the first degree, alleging that the defendant, at the specified time, broke and entered the dwelling house therein described, was sufficient to support a conviction under subsection (b) for wrongfully breaking and entering a building. State v. Cooper, 288 N.C. 496 , 219 S.E.2d 45, 1975 N.C. LEXIS 1015 (1975).

Although, in its jury charge on the offense of first degree burglary, the court did not instruct the jury on the lesser-included offense of felonious breaking or entering, the indictment charging only burglary and the instructions thereon were nonetheless sufficient to support a conviction for felonious breaking or entering. State v. Eldridge, 83 N.C. App. 312, 349 S.E.2d 881, 1986 N.C. App. LEXIS 2694 (1986).

Indictment alleging that defendant entered into an agreement with two or more persons to commit, on December 20, 1985, the unlawful act of breaking and entering to commit larceny contained sufficient allegations to meet the requirements of G.S. 15A-924(a)(5). State v. Hicks, 86 N.C. App. 36, 356 S.E.2d 595, 1987 N.C. App. LEXIS 2660 (1987).

Variance. —

In a prosecution for breaking and entering a building with intent to steal, the fact that the indictment alleges an intent to steal the property of a named corporation while the evidence discloses the property actually stolen belonged to another is not fatal. State v. Crawford, 3 N.C. App. 337, 164 S.E.2d 625, 1968 N.C. App. LEXIS 858 (1968).

If evidence offered at trial fails to show ownership as alleged in indictment of premises entered and property taken, a motion for judgment of nonsuit should be allowed, both to a charge of breaking or entering and to a charge of felonious larceny. State v. Crawford, 29 N.C. App. 117, 223 S.E.2d 534, 1976 N.C. App. LEXIS 2388 (1976).

There was no fatal variance where the indictment alleged a breaking and entering with intent to steal of a “building occupied by Julian Jones used as a garage” and the evidence showed that the building was a storage shed and no longer used by Mr. Jones, since it was not incumbent on the State to establish the owner of the property defendant intended to steal but only the intent to steal upon breaking or entering. State v. Graham, 47 N.C. App. 303, 267 S.E.2d 56, 1980 N.C. App. LEXIS 3081 (1980).

Because the indictment included all the required elements alleging defendant stole the victim’s television and the earrings from her residence, the indictment properly alleged all the elements of larceny; and any allegations in the indictment that were not necessary to support the larceny charge, including the ownership of the laptop, the camera, and the gaming system were deemed to be surplusage; thus, the trial court properly denied defendant’s motion to dismiss the larceny charge based upon an alleged fatal variance between the indictment and the evidence presented at trial. State v. Bacon, 254 N.C. App. 463, 803 S.E.2d 402, 2017 N.C. App. LEXIS 553 (2017).

VIII.Lesser Offenses

Misdemeanor Breaking and Entering Is Lesser Included Offense of Felonious Breaking and Entering. —

The misdemeanor defined in this section must be considered “a less degree of the same crime,” an included offense, within the meaning of G.S. 15-170 . State v. Jones, 264 N.C. 134 , 141 S.E.2d 27, 1965 N.C. LEXIS 1129 (1965); State v. Dickens, 272 N.C. 515 , 158 S.E.2d 614, 1968 N.C. LEXIS 691 (1968); State v. Williams, 2 N.C. App. 194, 162 S.E.2d 688, 1968 N.C. App. LEXIS 898 (1968).

Misdemeanor breaking or entering, under subsection (b) of this section, is a lesser included offense of felonious breaking or entering and requires only proof of wrongful breaking or entry into any building. State v. O'Neal, 77 N.C. App. 600, 335 S.E.2d 920, 1985 N.C. App. LEXIS 4192 (1985).

Wrongful breaking or entering without intent to commit a felony or other infamous crime is a lesser degree of felonious breaking or entering within this section. State v. Worthey, 270 N.C. 444 , 154 S.E.2d 515, 1967 N.C. LEXIS 1374 (1967).

The misdemeanor of nonfelonious breaking and entering, if there is evidence to support it, is a lesser included offense of the felony of breaking and entering with intent to commit a felony as described in this section. State v. Johnson, 1 N.C. App. 15, 159 S.E.2d 249, 1968 N.C. App. LEXIS 998 (1968); State v. Fowler, 1 N.C. App. 546, 162 S.E.2d 37, 1968 N.C. App. LEXIS 1127 (1968).

Wrongful breaking and entering without intent to commit a felony or other infamous crime is a lesser included offense of the felony of breaking or entering with intent to commit a felony under this section. State v. Fowler, 1 N.C. App. 549, 162 S.E.2d 39, 1968 N.C. App. LEXIS 1128 (1968); State v. Lewis, 17 N.C. App. 117, 193 S.E.2d 455, 1972 N.C. App. LEXIS 1582 (1972), cert. denied, 283 N.C. 259 , 195 S.E.2d 691, 1973 N.C. LEXIS 949 (1973).

Any person who breaks or enters any building described in this section with intent to commit any felony or larceny therein, is guilty of a felony. A wrongful breaking or entering into such building, without the intent to commit any felony therein, is a misdemeanor, a lesser included offense within the meaning of G.S. 15-170 . State v. Dozier, 19 N.C. App. 740, 200 S.E.2d 348, 1973 N.C. App. LEXIS 1754 (1973), cert. denied, 284 N.C. 618 , 201 S.E.2d 690, 1974 N.C. LEXIS 1306 (1974).

Breaking and Entering Is Lesser Offense of Burglary. —

The statutory offense set forth in this section is a less degree of the offense of burglary in the first degree set forth in G.S. 14-51 . State v. Perry, 265 N.C. 517 , 144 S.E.2d 591, 1965 N.C. LEXIS 1030 (1965); State v. Fowler, 1 N.C. App. 546, 162 S.E.2d 37, 1968 N.C. App. LEXIS 1127 (1968); State v. Bell, 284 N.C. 416 , 200 S.E.2d 601, 1973 N.C. LEXIS 876 (1973).

A felonious entering into a house otherwise than burglariously with intent to commit larceny, a violation of this section, is a less degree of the felony of burglary in the first degree. State v. Fikes, 270 N.C. 780 , 155 S.E.2d 277, 1967 N.C. LEXIS 1426 (1967).

A violation of this section is a less degree of the felony of burglary in the first degree. State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510, 1969 N.C. App. LEXIS 1552 (1969).

Misdemeanor breaking or entering is a lesser included offense of burglary in the first degree. State v. Patton, 80 N.C. App. 302, 341 S.E.2d 744, 1986 N.C. App. LEXIS 2176 (1986).

The statutory offense of felonious breaking or entering is a lesser included offense of burglary in the first and second degree. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979); State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Felonious breaking or entering is a lesser included offense of second degree burglary and only requires proof of a breaking or entering with the intent to commit any felony or larceny therein. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

The defendant’s burglary conviction was vacated because the evidence failed to support the state’s theory that he entered with the intent to commit a sex offense; and the case was remanded for an appropriate entry of judgment where the jury found facts that would support defendant’s conviction for non-felonious breaking and entering, pursuant to this section. State v. Cooper, 138 N.C. App. 495, 530 S.E.2d 73, 2000 N.C. App. LEXIS 637 , aff'd, 353 N.C. 260 , 538 S.E.2d 912, 2000 N.C. LEXIS 907 (2000).

Defendant’s conviction for first-degree burglary was inappropriate because the State failed to present sufficient evidence of entry. However, the evidence did support a conviction for felonious breaking or entering under G.S. 14-54(a) . State v. Watkins, 218 N.C. App. 94, 720 S.E.2d 844, 2012 N.C. App. LEXIS 53 (2012).

Breaking or Entering With Intent to Terrorize Not a Lesser Included Offense of First-Degree Burglary. —

Breaking or entering a building with intent to terrorize under G.S. 14-54(a1) is not a lesser included offense of first-degree burglary because unlike first-degree burglary, this section requires the intent to terrorize or injure an occupant of the building broken or entered into. Unlike this section, first-degree burglary requires (i) the breaking (ii) and entering (iii) in the nighttime (iv) into the dwelling house or sleeping apartment (v) of another (vi) which is actually occupied at the time of the offense (vii) with the intent to commit a felony therein. State v. McDaris, 274 N.C. App. 339, 852 S.E.2d 403, 2020 N.C. App. LEXIS 798 (2020).

Conviction for Burglary Reversed. —

Conviction for first degree burglary was reversed and the matter remanded for imposition of a judgment for misdemeanor breaking or entering because the evidence, which included defendant reaching in and pulling the victim out of the house after the victim opened the door, showed an intent to commit robbery outside, not inside, the victim’s house. State v. Goldsmith, 187 N.C. App. 162, 652 S.E.2d 336, 2007 N.C. App. LEXIS 2310 (2007).

First-degree trespass is a lesser included offense of felony breaking or entering. State v. Hamilton, 132 N.C. App. 316, 512 S.E.2d 80, 1999 N.C. App. LEXIS 111 (1999).

To justify submission of felonious breaking or entering as a permissible verdict in a prosecution for burglary there must be evidence tending to show that defendant could have gained entry to victim’s motel room by means other than a burglarious breaking, i.e., a forcible entry. State v. Jolly, 297 N.C. 121 , 254 S.E.2d 1, 1979 N.C. LEXIS 1140 (1979).

Offenses of breaking or entering and larceny are separate and distinct crimes, neither one a lesser included offense of the other. State v. Gardner, 68 N.C. App. 515, 316 S.E.2d 131, 1984 N.C. App. LEXIS 3413 (1984), aff'd, 315 N.C. 444 , 340 S.E.2d 701, 1986 N.C. LEXIS 1900 (1986); State v. Edmondson, 70 N.C. App. 426, 320 S.E.2d 315, 1984 N.C. App. LEXIS 3683 (1984), aff'd, 316 N.C. 187 , 340 S.E.2d 110, 1986 N.C. LEXIS 1919 (1986).

Receiving stolen goods is not a lesser included offense of breaking and entering but a separate and distinct offense. State v. Miller, 18 N.C. App. 489, 197 S.E.2d 46, 1973 N.C. App. LEXIS 1915 , cert. denied, 283 N.C. 757 , 198 S.E.2d 727, 1973 N.C. LEXIS 1090 (1973).

Felonious Breaking and Entering as Lesser Included Offense of Felony-Murder. —

Where proof that defendant feloniously broke into and entered a dwelling is an essential and indispensable element in the State’s proof of murder committed in the perpetration of the felony of feloniously breaking into and entering that particular dwelling, the conviction of defendant for felony-murder, that is, murder in the first degree without proof of malice, premeditation or deliberation, is based on a finding by the jury that the murder was committed in the perpetration of the felonious breaking and entering, and the felonious breaking and entering is a lesser included offense of the felony-murder. Hence, a separate verdict of guilty of felonious breaking and entering affords no basis for additional punishment. State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972).

IX.Trial
A.Burden of Proof

Proof of recent possession of stolen property by the State does not shift the burden of proof to the defendant but the burden remains with the State to demonstrate defendant’s guilt beyond a reasonable doubt. State v. Fair, 291 N.C. 171 , 229 S.E.2d 189, 1976 N.C. LEXIS 944 (1976).

Insanity as Defense. —

Insanity is an affirmative defense and the burden of carrying it is upon the defendant. State v. Tillman, 22 N.C. App. 688, 207 S.E.2d 316, 1974 N.C. App. LEXIS 2419 (1974).

B.Evidence

Circumstantial Evidence. —

Neither this statute nor State v. Walton, 90 N.C. App. 532, 369 S.E.2d 101 (1988) requires that evidence be direct; rather, the evidence must be substantial. It is well-established in the appellate courts of this State that jurors may rely on circumstantial evidence to the same degree as they rely on direct evidence. State v. Sluka, 107 N.C. App. 200, 419 S.E.2d 200, 1992 N.C. App. LEXIS 668 (1992).

Competent evidence. —

Competent evidence existed that defendant willfully violated his probation by committing a new offense of misdemeanor breaking or entering because competent evidence was presented to satisfy the trial court judge that defendant broke or entered into the apartment without permission from the property manager. State v. Pettiford, 869 S.E.2d 772, 2022- NCCOA-136, 2022 N.C. App. LEXIS 137 (N.C. Ct. App. 2022).

Evidence Concerning Accomplice Immaterial. —

Where defendant was charged under this section with nonburglariously breaking and entering and the evidence showed that he sat in his car while a friend unlawfully entered the house of another, the defendant was a principal in the crime being committed and the fact that his friend did not enter by burglarious breaking is immaterial. State v. Best, 232 N.C. 575 , 61 S.E.2d 612, 1950 N.C. LEXIS 583 (1950).

Acquittal of Third Persons Not Relevant. —

Since breaking and entering, larceny and uttering a forged check are offenses that require only one perpetrator, the acquittal of third persons arrested with the accused for the crime is not relevant evidence at defendant’s trial. State v. McCullough, 50 N.C. App. 184, 272 S.E.2d 613, 1980 N.C. App. LEXIS 3461 (1980).

Evidence of Entry Without Breaking. —

Where the evidence in the case and the inferences to be reasonably drawn therefrom were not such as would have required the jury to find that defendant entered by a burglarious breaking, the jury might reasonably have inferred that defendant made his entry without a burglarious breaking. State v. Bell, 284 N.C. 416 , 200 S.E.2d 601, 1973 N.C. LEXIS 876 (1973).

Inference From Possession of Recently Stolen Property. —

Evidence that defendant was in possession of stolen property shortly after the property was stolen raises a presumption of defendant’s guilt of larceny of such property. State v. Snuggs, 18 N.C. App. 226, 196 S.E.2d 525, 1973 N.C. App. LEXIS 1821 (1973).

The presumption of recent possession, or inference as it is more properly called, is one of fact and not of law. The inference derived from recent possession is to be considered by the jury merely as an evidentiary fact, along with the other evidence in the case, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant’s guilt. State v. Fair, 291 N.C. 171 , 229 S.E.2d 189, 1976 N.C. LEXIS 944 (1976).

While possession of recently stolen property will support both a presumption of guilt of larceny and an inference of guilt of breaking and entering, they are mere inferences which the jury may consider along with other evidence in the case, which other evidence may be sufficient to tip the scales with respect to one count but not the other. State v. Barnes, 30 N.C. App. 671, 228 S.E.2d 83, 1976 N.C. App. LEXIS 2335 (1976).

The presumption spawned by possession of recently stolen property arises when, and only when, the State shows beyond a reasonable doubt that: (1) the property described in the indictment was stolen; (2) the stolen goods were found in defendant’s custody and were subject to his control and disposition to the exclusion of others, though they need not necessarily be found in defendant’s hands or on his person so long as he had the power and intent to control the goods; and (3) the possession was recently after the larceny, mere possession of stolen property being insufficient to raise a presumption of guilty. State v. Hamlet, 316 N.C. 41 , 340 S.E.2d 418, 1986 N.C. LEXIS 1888 (1986).

Lapse of nine days held not to defeat the inference of defendant’s guilt arising from his possession of recently stolen property. State v. Washington, 86 N.C. App. 235, 357 S.E.2d 419, 1987 N.C. App. LEXIS 2693 (1987), cert. denied, 322 N.C. 485 , 370 S.E.2d 235, 1988 N.C. LEXIS 329 (1988).

Tracing Stolen Articles to Defendant. —

It is always competent in a prosecution for breaking and entering and larceny to show all of the goods lost from a store and to trace some or all of the articles to a defendant. State v. Richardson, 8 N.C. App. 298, 174 S.E.2d 77, 1970 N.C. App. LEXIS 1541 (1970).

Evidence Concerning Owner’s Permission. —

Where the evidence tended to show that a homeowner was locked out of his house and was trying to gain entry by using a credit card when defendant approached him and opened the door with an eight inch knife, the homeowner and defendant entered the house, drank alcoholic beverages and removed some items belonging to the homeowner, and both then left the house whereupon the homeowner called the police, testimony by the homeowner that he did not forbid defendant to come into the house because he was afraid defendant had a gun or knife was evidence from which the jury could conclude defendant did not have the owner’s permission to enter the house. State v. Bartlett, 45 N.C. App. 704, 263 S.E.2d 800, 1980 N.C. App. LEXIS 2695 (1980).

Fingerprints. —

In prosecution for breaking and entering testimony by a qualified expert that fingerprints found at the scene of the crime correspond with the fingerprints of the accused, when accompanied by substantial evidence of circumstances from which the jury can find that the fingerprints could only have been impressed at the time the crime was committed, is sufficient to withstand motion for nonsuit and carry the case to the jury. State v. Miller, 289 N.C. 1 , 220 S.E.2d 572, 1975 N.C. LEXIS 869 (1975).

In prosecution for breaking and entering, where the State’s evidence established that: (1) defendant’s right thumbprint was found on the lock at the scene of the crime, a fact defendant solemnly admitted in open court; (2) no other fingerprints — of defendant or any one else — were found at the scene; and (3) when informed of the fingerprint defendant stated to the police that he had never been in the business establishment alleged to have been broken into, a statement now conceded to be false, defendant’s motion to nonsuit on the breaking and entering count was properly denied. State v. Miller, 289 N.C. 1 , 220 S.E.2d 572, 1975 N.C. LEXIS 869 (1975).

The defendant’s fingerprint, found at the scene of the crimes, standing alone, did not constitute substantial evidence that defendant was present at the time the crimes were committed, so his convictions for breaking or entering and larceny were reversed. State v. Gilmore, 142 N.C. App. 465, 542 S.E.2d 694, 2001 N.C. App. LEXIS 136 (2001).

For the State to survive a motion to dismiss under G.S. 15A-1227(a)(1), it must present evidence that defendant entered a building within the meaning of subsection (b) of this section and that he did so wrongfully, that is, that he entered without any consent or permission of the owner or occupant. State v. Winston, 45 N.C. App. 99, 262 S.E.2d 331, 1980 N.C. App. LEXIS 2566 (1980).

Evidence Held Sufficient. —

Evidence that a cotton mill had been broken into and that goods taken therefrom had been found in defendant’s possession within an hour or two thereafter, with further evidence of his unlawful possession, is sufficient for conviction, under the provisions of this section and defendant’s demurrer to the State’s evidence, or motion for dismissal thereon, is properly overruled. State v. Williams, 187 N.C. 492 , 122 S.E. 13, 1924 N.C. LEXIS 321 (1924).

The evidence was held amply sufficient to support verdict of guilty of feloniously breaking and entering and larceny by means of such felonious breaking and entering. State v. Majors, 268 N.C. 146 , 150 S.E.2d 35, 1966 N.C. LEXIS 1145 (1966).

Evidence held sufficient to sustain conviction under this section. State v. Hargett, 196 N.C. 692 , 146 S.E. 801, 1929 N.C. LEXIS 75 (1929); State v. Thompkins, 83 N.C. App. 42, 348 S.E.2d 605, 1986 N.C. App. LEXIS 2640 (1986).

Evidence held sufficient to overrule nonsuit in the prosecution for unlawfully breaking and entering a building with intent to steal merchandise therefrom. State v. Cloud, 271 N.C. 591 , 157 S.E.2d 12, 1967 N.C. LEXIS 1249 (1967).

Evidence that around midnight the defendant and a companion broke the glass door of a hardware store and took away guns and ammunition was held sufficient to show a present intent on the part of defendant to take property belonging to another and convert it to his own use. State v. Thompson, 8 N.C. App. 313, 174 S.E.2d 130, 1970 N.C. App. LEXIS 1547 (1970).

The court properly denied a motion for nonsuit where the State, having introduced substantial evidence of each element of the offense of breaking or entering the building as charged in the indictment and that defendant was one of the persons who committed the offense, the question of guilt or innocence was properly submitted to the jury. State v. Burch, 24 N.C. App. 514, 211 S.E.2d 511, 1975 N.C. App. LEXIS 2416 (1975).

There was sufficient circumstantial evidence from which the court could have found that respondent committed the breaking or entering: (1) Numerous items similar though not identified, as those stolen were found in the car driven by respondent; (2) respondent’s companion in the car had a fresh cut on his hand and at the store that was broken into, blood was found on the window and near the cash register; (3) and the officer’s observation of the car being driven by respondent under suspicious circumstances “backing out from behind” the store and thereafter stopping the car. In re Frye, 32 N.C. App. 384, 232 S.E.2d 301, 1977 N.C. App. LEXIS 1933 (1977).

Where the evidence shows (1) that a breaking and entering occurred; (2) that prior thereto the accused had possession of an instrument used to effect it; (3) that such possession occurred within a short time prior to the breaking and entering; (4) and that the instrument was found at the scene of the crime immediately after the crime was committed, a jury would be justified in finding that the instrument had been brought there by the person who had been shown to have previously possessed it and that such person used it to effect the breaking and entering. If the evidence is also sufficient to show that the crime of larceny was committed pursuant to the breaking and entering, then the jury may infer that the accused is guilty of larceny as well as breaking and entering. State v. McNair, 36 N.C. App. 196, 243 S.E.2d 805, 1978 N.C. App. LEXIS 2447 (1978).

Where evidence presented by defendants and the State indicated that each defendant believed the apartment which was entered to be the dwelling of the other’s girl friend, each defendant presented evidence that he believed the other defendant had permission to enter the apartment, and nothing in the apartment, according to the owner, had been disturbed, there was insufficient evidence to sustain a verdict of second degree burglary. However, there was evidence from which the jury could have found defendants guilty of misdemeanor breaking or entering under this section. State v. Humphries, 82 N.C. App. 749, 348 S.E.2d 167, 1986 N.C. App. LEXIS 2627 (1986).

Evidence held to sufficiently satisfy the intent requirement of the offense of felonious breaking or entering. State v. White, 84 N.C. App. 299, 352 S.E.2d 261, 1987 N.C. App. LEXIS 3316 , cert. denied, 321 N.C. 123 , 361 S.E.2d 603, 1987 N.C. LEXIS 2532 (1987).

Evidence held sufficient for the jury to conclude beyond a reasonable doubt that defendant’s entry into victim’s home was nonconsensual and, therefore, wrongful. State v. Locklear, 320 N.C. 754 , 360 S.E.2d 682, 1987 N.C. LEXIS 2406 (1987).

Evidence of nonconsensual entry held to justify submission of that issue to the jury. State v. Murphy, 321 N.C. 72 , 361 S.E.2d 745, 1987 N.C. LEXIS 2490 (1987).

Evidence that a window in victim’s apartment was open and the screen was on the ground, that flower pots on the windowsill were disturbed, and that defendant’s fingerprints were on the screen and the windowsill, considered in the light most favorable to the State, supported submission of the breaking issue to the jury. State v. Murphy, 321 N.C. 72 , 361 S.E.2d 745, 1987 N.C. LEXIS 2490 (1987).

Where defendant’s fingerprints were found on frame of window broken by alleged perpetrator, and he was spotted at the crime scene shortly before break-in occurred, denial of defendant’s motion to dismiss was proper. State v. Barnette, 96 N.C. App. 199, 385 S.E.2d 163, 1989 N.C. App. LEXIS 952 (1989).

Though the owner of the goods allegedly stolen by defendant after he broke and entered the owner’s home did not testify, evidence that defendant exited the premise through a window with a crowbar in his hand, as well as a knapsack or jacket containing the goods, and that pry marks were located on the window, was sufficient to convict him under this section. State v. Jones, 151 N.C. App. 317, 566 S.E.2d 112, 2002 N.C. App. LEXIS 745 (2002), cert. denied, 540 U.S. 842, 124 S. Ct. 111, 157 L. Ed. 2d 76, 2003 U.S. LEXIS 5726 (2003).

There was sufficient circumstantial evidence to support convictions of breaking and entering and larceny where defendant’s car was seen at a burglary scene with its tailgate open, pulled up to the door of the house, a coffee table from the house was in the car, and a witness placed defendant next door to the crime scene on the day the offenses occurred. State v. Ethridge, 168 N.C. App. 359, 607 S.E.2d 325, 2005 N.C. App. LEXIS 253 (2005), aff'd, 360 N.C. 359 , 625 S.E.2d 777, 2006 N.C. LEXIS 17 (2006).

State of North Carolina met its burden of proving each element of breaking and entering under G.S. 14-54(a) , including intent, because the evidence presented was sufficient for the jury to conclude that defendants intended to commit robbery with a dangerous weapon at the time defendants entered the home of the victims. State v. Ly, 189 N.C. App. 422, 658 S.E.2d 300, 2008 N.C. App. LEXIS 650 (2008).

Evidence that a man matching defendant’s description was seen leaning against the company truck, which was known to be in defendant’s possession on the date of the larceny; that the truck and the man were seen outside the shed while the shed door was partway open; and that the company truck and at least some of the equipment stolen from the storage building were recovered a few days later at defendant’s residence was sufficient to support defendant’s convictions for breaking or entering and larceny. State v. Milligan, 192 N.C. App. 677, 666 S.E.2d 183, 2008 N.C. App. LEXIS 1654 (2008).

Although defendant was never in the presence of the intended victim, evidence of a plan and defendant’s overt act of lying in wait behind the residence of the intended victim supported defendant’s conviction for attempted breaking and entering. State v. Lawrence, 210 N.C. App. 73, 706 S.E.2d 822, 2011 N.C. App. LEXIS 345 (2011), rev'd, 365 N.C. 506 , 723 S.E.2d 326, 2012 N.C. LEXIS 265 (2012).

While the evidence did not support defendant’s first degree burglary conviction, because the record contained no evidence that defendant intended to transport the victim by vehicle when he entered the apartment in which she was hiding, the evidence did support a conviction for misdemeanor breaking and entering. State v. Allah, 231 N.C. App. 88, 750 S.E.2d 903, 2013 N.C. App. LEXIS 1248 (2013).

Given the victim’s testimony that a shotgun was missing after the break in, plus an officer’s testimony in this regard, the testimony was sufficient to establish that items were missing after the breaking and entering. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Defendant’s motion to dismiss the misdemeanor breaking or entering charge based on the insufficiency of the evidence was properly denied because, while defendant was permitted to have access to the garage in order to collect his belongings, he lacked permission to enter the interior of the residence; although defendant retained a garage door opener after moving out of the home, he never possessed a key to the home and was not given the new code to the alarm system after the victim changed it following their break-up; and the fact that defendant had to kick in the door in order to gain entry into the residence supported the proposition that he lacked permission to enter the home. State v. Vetter, 257 N.C. App. 915, 810 S.E.2d 759, 2018 N.C. App. LEXIS 138 (2018).

Where the general license or privilege to enter a store open to the public was specifically revoked as to defendant, and his ban from the store was implemented and personally communicated to him and no evidence suggested it had been rescinded, defendant’s entry to a retail store was unlawful, and therefore, the State’s evidence was sufficient to support defendant’s conviction for felonious breaking and entering. State v. Allen, 258 N.C. App. 285, 812 S.E.2d 192, 2018 N.C. App. LEXIS 221 (2018).

Sufficient substantial evidence showed defendant personally committed felonious breaking and entering, larceny, and misdemeanor injury to real property because (1) witnesses saw defendant drive a car to the victim’s apartment, (2) defendant had no permission to be there, (3) a witness saw a television in the car’s trunk, (4) televisions were stolen from the apartment, and, (5) when spoken to, defendant acted startled, slammed the trunk, and drove away. State v. Webb, 258 N.C. App. 361, 812 S.E.2d 182, 2018 N.C. App. LEXIS 227 (2018).

Evidence Held Insufficient. —

There was insufficient evidence from which the jury could find that defendant committed the breaking and entering where no fingerprints were taken linking the defendant to the break-in, no effort was made to determine whether the footprints leading from the home matched the defendant’s footprints, and where clearly defendant never had actual possession of the stolen merchandise. State v. McKinney, 25 N.C. App. 283, 212 S.E.2d 707, 1975 N.C. App. LEXIS 2240 (1975).

In a prosecution of defendant for breaking or entering, evidence relating to the actions of a bloodhound should have been excluded because the State failed to show that the dog was put on the trail of the guilty party under such circumstances as to afford substantial assurance that the person trailed was in fact the person suspected, and the case should have been dismissed for insufficiency of evidence where the evidence tended to show that one and a half to two hours after a breaking occurred, one and a half to two miles away, defendant was found on a little sandbar by a creek; there was no evidence tending to establish that defendant was ever at the residence broken into; the only witness to the crime was unable to identify the man he had seen leaving the residence; there was no evidence defendant was at the place at which the dog was released to track the thieves; there was no evidence placing stolen guns or other stolen items in defendant’s possession; there was evidence of footprints in the vicinity of the residence, but no evidence indicating they were defendant’s footprints; and there was no evidence that defendant attempted to flee to avoid capture. State v. Lanier, 50 N.C. App. 383, 273 S.E.2d 746, 1981 N.C. App. LEXIS 2121 (1981).

Same — Evidence of Intoxication. —

Evidence that defendant was in an intoxicated condition at the time he was apprehended fell short of a showing that defendant was in such an intoxicated condition that he was utterly unable to form the intent required. State v. Bronson, 10 N.C. App. 638, 179 S.E.2d 823, 1971 N.C. App. LEXIS 1687 (1971).

C.Instructions

Duty of Court to Submit to Jury Question of Guilt Hereunder Where Indictment Charges First-Degree Burglary. —

Where the evidence is sufficient to justify it upon a bill of indictment charging a defendant with burglary in the first degree, it is the duty and mandatory upon the court to submit to the jury the question of whether or not the defendant is guilty of breaking and entering the dwelling house in question at the time and place mentioned in the bill of indictment otherwise than burglariously, and it is error for the court to fail or refuse to do so. State v. Johnson, 218 N.C. 604 , 12 S.E.2d 278, 1940 N.C. LEXIS 58 (1940).

Same — Illustration. —

The State’s evidence tended to show that defendant broke and entered the dwelling house in question at night while same was occupied as a sleeping apartment, stole some money and ran away when the female occupant discovered him and screamed. Defendant contended, upon supporting evidence, that at the time he was too drunk to know where he was or what he was doing. The court instructed the jury that defendant might be convicted of burglary in the first degree, or of burglary in the second degree, if they found that the room was unoccupied, but if they found defendant was too drunk to form felonious intent they should return a verdict of not guilty. Held: The instruction required the jury to find the defendant guilty of burglary in the first degree or not guilty, since there was no evidence that the room was unoccupied, and defendant was entitled to a new trial for error of the court in failing to instruct that defendant might be found guilty of breaking and entering otherwise than burglariously, or of an attempt to commit the offense. State v. Feyd, 213 N.C. 617 , 197 S.E. 171, 1938 N.C. LEXIS 154 (1938).

The evidence tended to show unlawful entry into a dwelling at nighttime while same was actually occupied, and the actual commission therein of the felony charged in the bill of indictment. The evidence also tended to show that the window of the room in which the felony was committed was open, and that the perpetrator of the crime was first seen in this room, and that after the commission of the crime he escaped by the open window. There was also circumstantial evidence that entry was made by opening a window of another room of the house. There was also sufficient evidence tending to identify defendant as the perpetrator of the crime. Held: Although there is no evidence of burglary in the second degree, the evidence tends to show burglary in the first degree, or a nonburglarious breaking and entering with intent to commit a felony, depending upon whether the perpetrator of the crime entered by the open window or burglariously “broke” into the dwelling, and therefore the trial court should have charged that the defendant might be found guilty of burglary in the first degree, guilty of a nonburglarious breaking and entering of the dwelling house with intent to commit a felony or other infamous crime therein, or not guilty, and its failure to submit the question of defendant’s guilt of nonburglarious entry constitutes reversible error. State v. Chambers, 218 N.C. 442 , 11 S.E.2d 280, 1940 N.C. LEXIS 7 (1940).

Charge on Lesser Offense Not Required Absent Evidence Thereof. —

Where the State’s evidence, which was all that the jury had to go on since defendant presented none, tended to show only that defendant forcibly entered apartment by breaking through a screened window, and did not tend to show that defendant entered the apartment without force through an open, unscreened window, the court was only required to instruct the jury on the offense of first degree burglary, and was not required to charge on the lesser included offense of felonious breaking and entering. State v. Mayfield, 74 N.C. App. 601, 329 S.E.2d 419, 1985 N.C. App. LEXIS 3516 , cert. denied, 314 N.C. 335 , 333 S.E.2d 495, 1985 N.C. LEXIS 1973 (1985).

Instruction on a lesser included offense is proper only where there is evidence that would permit a jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater offense; therefore, in a trial under this section, the possibility that a jury might partially accept or reject the State’s evidence against defendant was not sufficient to require an instruction on the lesser included offense of misdemeanor breaking or entering. State v. Barnette, 96 N.C. App. 199, 385 S.E.2d 163, 1989 N.C. App. LEXIS 952 (1989).

Where overwhelming evidence showed that prior to breaking into the house defendant had decided to kill his estranged wife’s family, all the evidence relevant to the time before defendant broke and entered supported an inference that defendant possessed the intent to kill, and no evidence tended to negate this intent, a rational trier of fact could not have concluded defendant did not possess the intent to commit murder, and the trial court did not err in refusing to instruct on the lesser included offense of misdemeanor breaking or entering. State v. Gibbs, 335 N.C. 1 , 436 S.E.2d 321, 1993 N.C. LEXIS 542 (1993), cert. denied, 512 U.S. 1246, 114 S. Ct. 2767, 129 L. Ed. 2d 881, 1994 U.S. LEXIS 5069 (1994).

A jury instruction on the lesser included offenses of misdemeanor breaking or entering and first degree trespass was not required in a prosecution for felonious breaking or entering, where there was no evidence that defendant entered the store for some reason other than larceny, particularly as items were stolen from the premises. State v. Hamilton, 132 N.C. App. 316, 512 S.E.2d 80, 1999 N.C. App. LEXIS 111 (1999).

Trial court committed no plain error in failing to instruct the jury on non-felonious breaking and entering where there was substantial evidence that: (1) defendant entered the residence in order to rape the victim; (2) once inside, defendant pushed the victim into her room and onto her bed, held her arms tightly behind her back, removed duct tape from his pocket, and repeatedly touched the victim’s breast and between her legs; and (3) although defendant argued that there was evidence that he merely wanted to use the telephone and the restroom, none of the above-stated acts committed by defendant were in furtherance of defendant’s stated intent to use the telephone or restroom. State v. Mangum, 158 N.C. App. 187, 580 S.E.2d 750, 2003 N.C. App. LEXIS 1036 (2003).

Defendant who was charged with first degree burglary was not entitled to a jury instruction on the lesser included offense of felonious breaking and entering where the state’s evidence was sufficient to satisfy its burden of proof on each element of the greater offense. State v. Crawford, 179 N.C. App. 613, 634 S.E.2d 909, 2006 N.C. App. LEXIS 2019 (2006).

With regard to defendant’s conviction for first-degree burglary wherein the State established by positive and uncontroverted evidence that defendant and another broke and entered the dwelling of the victim during the nighttime with a weapon, and the only element of first-degree burglary that was controverted was defendant’s intent when he entered the home, because the State established all the elements of first-degree burglary, except the intent with which defendant entered the home, with positive and uncontroverted evidence, it also established the elements of felonious breaking or entering except for intent and, therefore, it was not error for the trial court to omit an instruction for the lesser included offense of felonious breaking or entering. Instead, because the evidence as to defendant’s intent was circumstantial and controverted, the trial court was required to instruct on the lesser included offense of misdemeanor non-felonious breaking or entering, which it did. State v. Graham, 186 N.C. App. 182, 650 S.E.2d 639, 2007 N.C. App. LEXIS 2110 (2007).

Ingenuity of counsel did not constitute evidence that supported an instruction on misdemeanor breaking or entering, and thus the trial court was not required to submit the lesser charge to the jury in connection with defendant’s charge of breaking and entering. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Defendant was not entitled to instructions in his breaking and entering case on the misdemeanor offense of possession of stolen goods because all the evidence tended to show that there was a breaking and entering at the victim’s residence, that a shotgun had been taken as a result, that defendant’s DNA profile matched a sample of blood found on a door frame, and his friend stated that he believed the gun belonged to defendant. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Although there was not sufficient evidence to support a conviction for second-degree burglary, there was sufficient evidence to establish defendants’ intent to commit a felony and, thus, to support entry of judgment on felonious breaking or entering. State v. Lucas, 234 N.C. App. 247, 758 S.E.2d 672, 2014 N.C. App. LEXIS 566 (2014).

Where only evidence of defendant’s intent to commit larceny was the fact that he broke and entered into victim’s apartment, the trial court erred in failing to submit the lesser included offense of misdemeanor breaking or entering to the jury as a possible verdict. State v. Patton, 80 N.C. App. 302, 341 S.E.2d 744, 1986 N.C. App. LEXIS 2176 (1986).

Any failure by the court to set forth fully the elements of breaking or entering was harmless error, where the court properly instructed the jury regarding the elements of second degree burglary, as by finding defendant guilty of second degree burglary the jury necessarily found that he had committed each element of the offense of felonious breaking or entering. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

Charge on Felony Not Due Process Violation. —

No due process violation occurred when, after further research, the trial court reversed its prior ruling, made at the close of the State’s evidence, that it would submit misdemeanor breaking and entering, and submitted the charge of felonious breaking and entering to the jury. State v. White, 84 N.C. App. 299, 352 S.E.2d 261, 1987 N.C. App. LEXIS 3316 , cert. denied, 321 N.C. 123 , 361 S.E.2d 603, 1987 N.C. LEXIS 2532 (1987).

Failure to Charge on Misdemeanor Prejudicial Error. —

Where the evidence as to defendant’s intent was circumstantial and did not point unerringly to an intent to commit a felony, it was prejudicial error for the court to fail to charge that the jury could find a verdict of nonfelonious breaking and entering, a misdemeanor, and for the court to fail to explain the full contents of this section to the jury. State v. Worthey, 270 N.C. 444 , 154 S.E.2d 515, 1967 N.C. LEXIS 1374 (1967).

In a prosecution for rape and felonious breaking and entering, where the jury was not compelled to find from the evidence that defendant intended to commit rape at the time he entered the building, and if the jury had not found that defendant intended to commit rape at the time he entered the building and found the other elements of breaking or entering, they should have found him guilty of misdemeanor breaking or entering, it was error not to submit this possible verdict to the jury. State v. Gray, 322 N.C. 457 , 368 S.E.2d 627, 1988 N.C. LEXIS 360 (1988).

Evidence that defendant admitted to breaking into a property with sole intent of finding a place to sleep was sufficient to support giving instruction on lesser included offense of misdemeanor breaking and entering. State v. Friend, 164 N.C. App. 430, 596 S.E.2d 275, 2004 N.C. App. LEXIS 958 (2004).

The term “larceny” is a vital element, etc. of the crime of breaking and entering with the intent to commit larceny and the trial judge’s failure to define such term in his instructions constituted error requiring a new trial. State v. Elliott, 21 N.C. App. 555, 205 S.E.2d 106, 1974 N.C. App. LEXIS 1873 (1974).

With regards to the rule that it is not error for the trial court to instruct on breaking or entering when a defendant is charged with “breaking and entering,” the rule is applicable to the element of “breaking or entering” regardless of whether the defendant “breaks or enters” a motor vehicle or a dwelling house; thus, the trial court did not err in instructing the jury on “breaking or entering” on defendant’s charge of breaking and entering a motor vehicle. State v. Mitchell, 234 N.C. App. 423, 759 S.E.2d 335, 2014 N.C. App. LEXIS 600 (2014).

Proper Instruction. —

See State v. Jones, 272 N.C. 108 , 157 S.E.2d 601 (1967).

Same — Instruction in Words of Section. —

Where the court charged in the words of this section, the instruction was free from prejudicial error. State v. Wade, 14 N.C. App. 414, 188 S.E.2d 714, 1972 N.C. App. LEXIS 2142 , cert. denied, 281 N.C. 627 , 190 S.E.2d 470, 1972 N.C. LEXIS 1150 (1972).

Same — Instruction Allowing Conviction on Alternative Propositions. —

In prosecutions under this section, where the indictment charges the defendant with breaking and entering, proof by the State of either a breaking or an entering is sufficient, and instructions allowing juries to convict on the alternative propositions are proper. State v. Boyd, 287 N.C. 131 , 214 S.E.2d 14, 1975 N.C. LEXIS 1072 (1975); State v. Reagan, 35 N.C. App. 140, 240 S.E.2d 805, 1978 N.C. App. LEXIS 2884 (1978); State v. Sellars, 52 N.C. App. 380, 278 S.E.2d 907, 1981 N.C. App. LEXIS 2474 , cert. denied, 304 N.C. 200 , 285 S.E.2d 108, 1981 N.C. LEXIS 1464 (1981).

Instruction As To Diminished Capacity Defense. —

Trial court did not commit plain error by failing to instruct the jury on diminished capacity from defendant having taken medication before breaking and entering into a building with his accomplices, despite defendant’s contention that he was in a fog, because defendant’s two statements regarding his mental condition were insufficient to create a reasonable doubt in the juror’s minds that defendant was unable to form the specific intent necessary to commit the crime of breaking and entering. State v. Garcia, 174 N.C. App. 498, 621 S.E.2d 292, 2005 N.C. App. LEXIS 2493 (2005).

Instruction as to Duress Defense. —

Denial of defendant’s request for an instruction on duress was appropriate because, even though defendant alleged that the other perpetrators with whom defendant was taking drugs forced defendant to attempt a break-in of a home, the trial court found that defendant had the opportunity to avoid doing the act in question. Furthermore, defendant failed to show that defendant’s actions were caused by a reasonable fear that defendant would suffer immediate death or serious bodily injury if defendant did not act. State v. Burrow, 248 N.C. App. 663, 789 S.E.2d 923, 2016 N.C. App. LEXIS 810 (2016).

D.Verdict

Verdict of Felonious “B. & E.” Disapproved. —

In a prosecution for felonious breaking and entering, a verdict that defendant is guilty of felonious “B. & E.” is disapproved. State v. Gaston, 4 N.C. App. 575, 167 S.E.2d 510, 1969 N.C. App. LEXIS 1552 (1969).

Larceny Verdict After Acquittal of Felonious Breaking and Entering. —

Where a defendant is acquitted of felonious breaking or entering, he cannot be convicted of felonious larceny based on the felonious breaking or entering charge, and a jury’s verdict of guilty of felonious larceny must be treated as a verdict of guilty of misdemeanor larceny. State v. Cornell, 51 N.C. App. 108, 275 S.E.2d 857, 1981 N.C. App. LEXIS 2207 (1981).

Reduction of Burglary Conviction to Felonious Breaking or Entering. —

Where there was no evidence from which the jury reasonably could have concluded that defendant, rather than codefendant, removed window screen and pried open window, and it was just as likely that defendant crawled through window after codefendant opened it, and where the court failed to instruct the jury on acting in concert, the evidence did not permit a finding that defendant personally committed each element of the offense of second degree burglary. However, by finding defendant guilty of second degree burglary, the jury necessarily found facts that would support defendant’s conviction of felonious breaking or entering. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986) (vacating conviction of second degree burglary and remanding for entry of a judgment as upon a conviction of felonious breaking or entering) .

Where there was insufficient evidence from which the jury could find that defendant committed an actual breaking under the court’s instructions, the verdicts of second degree burglary returned by the jury would be considered verdicts of guilty of felonious breaking or entering. State v. Helton, 79 N.C. App. 566, 339 S.E.2d 814, 1986 N.C. App. LEXIS 2082 (1986).

E.Sentencing

Editor’s Note. —

Some of the cases in the following annotations were decided under the section as it stood prior to the effective date of the 1979 amendment.

Trial court did not err in failing to find nonstatutory mitigating factor, on sentencing defendant on convictions of felonious breaking or entering and felonious larceny, that the victim suffered only insubstantial loss, where the victim’s loss was insubstantial merely because the police stopped defendant’s accomplice in the middle of the larceny. State v. Litchford, 78 N.C. App. 722, 338 S.E.2d 575, 1986 N.C. App. LEXIS 2002 (1986).

Computation of Defendant’s Prior Felony Record Level. —

While it was error to have accepted defendant’s stipulation of the substantial similarity of a Tennessee conviction for theft over $1,000 to a Class H felony, the error did not affect the computation of defendant’s prior felony record level; because a Class H felony and a Class I felony were both assigned two points, any possible error did not affect defendant’s prior record level and there was no prejudicial error. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Sentence Under Former Provisions Held Not Cruel or Unusual. —

See State v. Greer, 270 N.C. 143 , 153 S.E.2d 849, 1967 N.C. LEXIS 1313 (1967); State v. Robinson, 271 N.C. 448 , 156 S.E.2d 854, 1967 N.C. LEXIS 1217 (1967); State v. Strickland, 10 N.C. App. 540, 179 S.E.2d 162, 1971 N.C. App. LEXIS 1670 (1971).

Maximum Sentence. —

The punishment for a violation of this section may be a maximum of 10 years. State v. Hodge, 267 N.C. 238 , 147 S.E.2d 881, 1966 N.C. LEXIS 1017 (1966).

The maximum punishment for the felony of breaking and entering is 10 years’ imprisonment. State v. Reed, 4 N.C. App. 109, 165 S.E.2d 674, 1969 N.C. App. LEXIS 1451 (1969); State v. Perryman, 4 N.C. App. 684, 167 S.E.2d 517, 1969 N.C. App. LEXIS 1581 (1969).

Larceny of any property of another of any value after breaking and entering, and larceny of property of more than $200.00 (now $400.00) in value, are felonious, each of which may be punishable by imprisonment for as much as 10 years. State v. Jones, 3 N.C. App. 455, 165 S.E.2d 36, 1969 N.C. App. LEXIS 1599 (1969).

A sentence of 10 years is not in excess of that permitted by the statute upon a conviction of the felony of breaking and entering in violation of subsection (a) of this section. State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749, 1970 N.C. App. LEXIS 1309 (1970).

X.Appeal

Scope of Review. —

Each defendant having entered a plea of guilty to a valid information charging the felony of nonburglarious breaking, their appeal brings up for review only the question whether the facts charged constitute an offense punishable under the laws and Constitution. Defendants’ plea established a violation of this section. State v. Hodge, 267 N.C. 238 , 147 S.E.2d 881, 1966 N.C. LEXIS 1017 (1966).

Sentence Where Misdemeanor and Felony Charges Consolidated. —

Where defendant was tried and convicted upon an indictment charging felonious breaking and entering and misdemeanor larceny, and both counts were consolidated for judgment, the fact that the one sentence imposed is in excess of that permissible upon conviction of the misdemeanor is immaterial and is not prejudicial where it does not exceed that permitted upon conviction of the felony. State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749, 1970 N.C. App. LEXIS 1309 (1970).

Sentence Exceeding Maximum. —

Where the maximum term of a sentence is set beyond statutory authorization under this section, the sentence imposed is not void in toto. Petitioner is not entitled to be released from custody since he has not served that part of the sentence which is within lawful limits. State v. Clendon, 249 N.C. 44 , 105 S.E.2d 93, 1958 N.C. LEXIS 400 (1958).

§ 14-54.1. Breaking or entering a building that is a place of religious worship.

  1. Any person who wrongfully breaks or enters any building that is a place of religious worship with intent to commit any felony or larceny therein is guilty of a Class G felony.
  2. As used in this section, a “building that is a place of religious worship” shall be construed to include any church, chapel, meetinghouse, synagogue, temple, longhouse, or mosque, or other building that is regularly used, and clearly identifiable, as a place for religious worship.

History. 2005-235, s. 1.

CASE NOTES

Fatal Variance. —

There was a fatal variance as to the ownership of the stolen property where the larceny indictment alleged that the stolen property belonged to the pastor and the church but the evidence at trial did not show that the pastor held title to or had any sort of ownership interest in the stolen property. All of the evidence tended to show that the pastor dealt with the property only in his capacity as an employee of the church. State v. Campbell, 243 N.C. App. 563, 777 S.E.2d 525, 2015 N.C. App. LEXIS 870 (2015), rev'd, 369 N.C. 599 , 799 S.E.2d 600, 2017 N.C. LEXIS 400 (2017).

Defendant’s larceny conviction was vacated because an indictment alleging a church and the church’s pastor owned stolen property varied fatally from evidence that only the church owned the property, since (1) the pastor, as a church employee, did not own the property, and (2) the church was capable of owning property. State v. Campbell, 257 N.C. App. 739, 810 S.E.2d 803, 2018 N.C. App. LEXIS 141 (2018), modified, aff'd, 373 N.C. 216 , 835 S.E.2d 844, 2019 N.C. LEXIS 1190 (2019).

Take and Carry Away. —

Insufficient evidence supported defendant’s larceny conviction because (1) the evidence only showed defendant entered a church from which property was stolen at the relevant time without showing motive or how defendant could carry or dispose of the large items, and (2) the North Carolina Supreme Court’s finding of sufficient intent evidence did not address taking and carrying away. State v. Campbell, 257 N.C. App. 739, 810 S.E.2d 803, 2018 N.C. App. LEXIS 141 (2018), modified, aff'd, 373 N.C. 216 , 835 S.E.2d 844, 2019 N.C. LEXIS 1190 (2019).

Insufficient evidence existed to support a larceny charge since the State’s evidence merely proved that the defendant was present inside the church for several hours during the four-day period in which equipment was taken, but the State failed to actually link the defendant to the stolen property or to prove that the defendant was in the church at the time when the equipment, which was never recovered, was stolen. State v. Campbell, 373 N.C. 216 , 835 S.E.2d 844, 2019 N.C. LEXIS 1190 (2019).

§ 14-54.2. Breaking or entering a pharmacy.

  1. Definition. —  The following definitions apply to this section:
    1. Pharmacy. — A business that has a pharmacy permit under G.S. 90-85.21 .
    2. Controlled substance. — As defined in G.S. 90-87(5).
  2. Offense. —  A person who breaks or enters a pharmacy with the intent to commit a larceny of a controlled substance is guilty of a Class E felony.
  3. Additional Offense. —  Unless the conduct is covered under some other provision of law providing greater punishment, a person who receives or possesses any controlled substance stolen in violation of subsection (b) of this section, knowing or having reasonable grounds to believe the controlled substance was stolen, is guilty of a Class F felony.
  4. Forfeiture. —  Any interest a person has acquired or maintained in property obtained in violation of this section shall be subject to forfeiture pursuant to the procedures for forfeiture as set forth in G.S. 90-112 .

History. 2019-40, s. 1.

Editor’s Note.

Session Laws 2019-40, s. 2, made this section, as enacted by Session Laws 2019-40, s. 1, effective December 1, 2019, and applicable to offenses committed on or after that date.

§ 14-55. Preparation to commit burglary or other housebreakings.

If any person shall be found armed with any dangerous or offensive weapon, with the intent to break or enter a dwelling, or other building whatsoever, and to commit any felony or larceny therein; or shall be found having in his possession, without lawful excuse, any picklock, key, bit, or other implement of housebreaking; or shall be found in any such building, with intent to commit any felony or larceny therein, such person shall be punished as a Class I felon.

History. Code, s. 997; Rev., s. 3334; 1907, c. 822; C.S., s. 4236; 1969, c. 543, s. 4; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1152; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

CASE NOTES

Analysis

I.General Consideration

This section defines three separate offenses. State v. Morgan, 268 N.C. 214 , 150 S.E.2d 377, 1966 N.C. LEXIS 1167 (1966); State v. Shore, 10 N.C. App. 75, 178 S.E.2d 22, 1970 N.C. App. LEXIS 1190 (1970), cert. denied, 278 N.C. 105 , 179 S.E.2d 453, 1971 N.C. LEXIS 951 (1971); State v. Hines, 15 N.C. App. 337, 190 S.E.2d 293, 1972 N.C. App. LEXIS 1915 (1972).

This section defines three separate offenses, and the part of this section relating to possession of implements of housebreaking is a separate offense. State v. Godwin, 269 N.C. 263 , 152 S.E.2d 152, 1967 N.C. LEXIS 1057 (1967).

Offenses of Being Armed and Possessing Housebreaking Implements Are Separate. —

The offense of being armed with any dangerous weapon with intent to break and enter a dwelling or other building and commit a felony therein, and the offense of possessing, without lawful excuse, implements of housebreaking, are separate and distinct offenses, under this section, the first requiring a presently existing intent to break and enter, and the second mere possession, without lawful excuse, of implements of housebreaking, which infers no personal intent but rather the purpose for which the implements are kept. State v. Baldwin, 226 N.C. 295 , 37 S.E.2d 898, 1946 N.C. LEXIS 435 (1946).

II.Possession of House- breaking Implements
A.Possession of Housebreaking Implements

Elements of Offense. —

The gravamen of the offense of possession of housebreaking implements, as defined by this section lies in the possession, without lawful excuse, of an implement or implements either enumerated in the statute or which fairly come within the meaning of the term other implements of housebreaking. State v. Bagley, 300 N.C. 736 , 268 S.E.2d 77, 1980 N.C. LEXIS 1115 (1980).

The essential elements of the crime of possession of implements of housebreaking are (1) the possession of an implement of housebreaking (2) without lawful excuse, and the State has the burden of proving both of these elements. State v. Stockton, 13 N.C. App. 287, 185 S.E.2d 459, 1971 N.C. App. LEXIS 1232 (1971).

Police officer had probable cause to arrest defendant for possession of burglary tools under G.S. 14-55 because her suspicion that defendant possessed implements of housebreaking was supported by: (1) defendant’s possession of a flashlight; (2) defendant’s possession of a backpack containing unknown items; and (3) all of the factors supporting the finding of reasonable suspicion for the initial stop of defendant, including the time of day, defendant’s proximity to the location of the crime, and the absence of other persons in the area. State v. Campbell, 188 N.C. App. 701, 656 S.E.2d 721, 2008 N.C. App. LEXIS 280 (2008).

Burden of Proof. —

The gravamen of the offense is the possession of burglar’s tools without lawful excuse, and the burden is on the State to show two things: (1) That the person charged was found having in his possession an implement or implements of housebreaking enumerated in, or which come within the meaning of the statute; and (2) that such possession was without lawful excuse. State v. Boyd, 223 N.C. 79 , 25 S.E.2d 456, 1943 N.C. LEXIS 207 (1943); State v. Morgan, 268 N.C. 214 , 150 S.E.2d 377, 1966 N.C. LEXIS 1167 (1966); State v. Godwin, 269 N.C. 263 , 152 S.E.2d 152, 1967 N.C. LEXIS 1057 (1967); State v. Craddock, 272 N.C. 160 , 158 S.E.2d 25, 1967 N.C. LEXIS 994 (1967); State v. Davis, 272 N.C. 469 , 158 S.E.2d 630, 1968 N.C. LEXIS 676 (1968); State v. Styles, 3 N.C. App. 204, 164 S.E.2d 412, 1968 N.C. App. LEXIS 823 (1968); State v. McCloud, 7 N.C. App. 132, 171 S.E.2d 470, 1970 N.C. App. LEXIS 1648 , aff'd, 276 N.C. 518 , 173 S.E.2d 753, 1970 N.C. LEXIS 717 (1970); State v. Shore, 10 N.C. App. 75, 178 S.E.2d 22, 1970 N.C. App. LEXIS 1190 (1970), cert. denied, 278 N.C. 105 , 179 S.E.2d 453, 1971 N.C. LEXIS 951 (1971); State v. Beard, 22 N.C. App. 596, 207 S.E.2d 390, 1974 N.C. App. LEXIS 2391 (1974).

The phrase “without lawful excuse” must be construed in the spirit of this section, and, even though the possession of the pistols and blackjack be unlawful and even though defendants possessed the pistols and blackjack for the purpose of personal protection in the unlawful transportation of alcoholic beverages such possession is not within the meaning of this section. State v. Boyd, 223 N.C. 79 , 25 S.E.2d 456, 1943 N.C. LEXIS 207 (1943).

Proof of “Intent” or “Unlawful Use” Not Required. —

The offense of possessing implements of housebreaking without lawful excuse, does not require the proof of any “intent” or “unlawful use.” State v. Vick, 213 N.C. 235 , 195 S.E. 779, 1938 N.C. LEXIS 55 (1938).

The offense of possessing implements of housebreaking does not require the proof of “intent” in this State. State v. Ledford, 24 N.C. App. 542, 211 S.E.2d 532, 1975 N.C. App. LEXIS 2424 (1975).

A prosecution under this section does not require proof of any specific intent to break into a particular building at a particular time and place. State v. Bagley, 300 N.C. 736 , 268 S.E.2d 77, 1980 N.C. LEXIS 1115 (1980).

But State Must Show General Intent To Use Unlawfully. —

Although a prosecution under this section does not require proof of any specific intent to break into a particular building at a particular time and place, the burden rests on the State to show beyond a reasonable doubt that the defendant possessed the article in question with a general intent to use it at some time for the purpose of facilitating a breaking. State v. Bagley, 300 N.C. 736 , 268 S.E.2d 77, 1980 N.C. LEXIS 1115 (1980).

Where defendant is charged with possession of certain specific items condemned by this section, it is not necessary for the court to determine whether tools or implements that have legitimate purposes were being possessed for an illegitimate purpose. State v. Styles, 3 N.C. App. 204, 164 S.E.2d 412, 1968 N.C. App. LEXIS 823 (1968).

Character of Object of Burglary Immaterial. —

The possession of an implement with intent to burglarize and not the character of the object (be it a house or vending machine) of the burglary brings the act within the condemnation of the statute. State v. Shore, 10 N.C. App. 75, 178 S.E.2d 22, 1970 N.C. App. LEXIS 1190 (1970), cert. denied, 278 N.C. 105 , 179 S.E.2d 453, 1971 N.C. LEXIS 951 (1971).

Proof That All Articles in Defendant’s Possession Are Implements of Housebreaking Not Required. —

The State is not required to prove that all the articles the defendant had in his possession are implements of housebreaking. State v. Stockton, 13 N.C. App. 287, 185 S.E.2d 459, 1971 N.C. App. LEXIS 1232 (1971).

Constructive Possession. —

The State need not always prove an actual possession of implements of housebreaking, but may show constructive possession by circumstantial evidence. State v. Ledford, 24 N.C. App. 542, 211 S.E.2d 532, 1975 N.C. App. LEXIS 2424 (1975).

B.Implements

“Implements of Housebreaking” Generally. —

If tools enumerated in an indictment are embraced within the general term “other implement of housebreaking,” their possession without lawful excuse is prohibited by this section. State v. Morgan, 268 N.C. 214 , 150 S.E.2d 377, 1966 N.C. LEXIS 1167 (1966).

Items which are “implements of housebreaking” are not specifically named in this section, so if their possession without lawful excuse is proscribed at all it is under the general language of the statute. State v. Shore, 10 N.C. App. 75, 178 S.E.2d 22, 1970 N.C. App. LEXIS 1190 (1970), cert. denied, 278 N.C. 105 , 179 S.E.2d 453, 1971 N.C. LEXIS 951 (1971).

An article may be deemed an implement of housebreaking, the possession of which is made criminal by the statute, when (1) it is a picklock, key, bit, or any other instrument capable of being used for the purpose of housebreaking, and (2) at the time and place alleged, the person charged with its possession did in fact possess it for that purpose, i.e., without lawful excuse. State v. Bagley, 300 N.C. 736 , 268 S.E.2d 77, 1980 N.C. LEXIS 1115 (1980).

Nature and Purpose of Tools. —

This section defines a separate felony for mere possession without lawful excuse of tools or implements of housebreaking, and it is the inherent nature and purpose of the tool, or the clear effect of a combination of otherwise innocent tools, which is condemned. State v. Godwin, 3 N.C. App. 55, 164 S.E.2d 86, 1968 N.C. App. LEXIS 787 (1968).

Use to Which Instrument Is Put Is Not Controlling. —

The fact that certain implements were possessed and used by the defendant in breaking open a window in a building is not determinative of the question of whether or not they were implements of housebreaking possessed in violation of this section. The use to which a tool or instrument is put is not necessarily controlling in determining whether it is within the intent of the phrase “or other implement of housebreaking” as contained in this section. State v. Puckett, 43 N.C. App. 596, 259 S.E.2d 310, 1979 N.C. App. LEXIS 3092 (1979).

Crowbar is clearly a breaking tool. State v. Morgan, 268 N.C. 214 , 150 S.E.2d 377, 1966 N.C. LEXIS 1167 (1966).

Combination of Crowbar and Big Screwdriver. —

Under the circumstances the possession of a crowbar and a big screwdriver were without lawful excuse, and said crowbar and big screwdriver were other implements of housebreaking within the intent and meaning of this section. State v. Morgan, 268 N.C. 214 , 150 S.E.2d 377, 1966 N.C. LEXIS 1167 (1966).

Combination of Gloves, Tapes, Chisels, Crowbars, Hammers, and Punches. —

While gloves, tapes, chisels, crowbars, hammers, and punches all have their honest and legitimate uses, when no explanation is offered for this combination of articles by a man several hundred miles from his home, in the middle of the night, it is ample to sustain a possession of wrongful and unlawful possession of tools used in store breaking. State v. Nichols, 268 N.C. 152 , 150 S.E.2d 21, 1966 N.C. LEXIS 1147 (1966).

Picklock. —

This section contemplates a picklock as being a burglary tool when it is in the possession of someone without lawful excuse. State v. Craddock, 272 N.C. 160 , 158 S.E.2d 25, 1967 N.C. LEXIS 994 (1967).

A “lockpick” and a “picklock” are the same thing. State v. Craddock, 272 N.C. 160 , 158 S.E.2d 25, 1967 N.C. LEXIS 994 (1967).

Chisels and Screwdrivers May Be Implements of Housebreaking. —

Although the instruments have other uses which are legitimate and were not made for the specific purpose of breaking into buildings, it is common knowledge that chisels and screwdrivers can be, and may be, used as implements of housebreaking. State v. Cadora, 13 N.C. App. 176, 185 S.E.2d 297, 1971 N.C. App. LEXIS 1184 (1971).

Screwdrivers and Icepicks May Be Implements of Housebreaking. —

Although the tools possessed by defendant were capable of legitimate use, under the circumstances shown by the State, a legitimate inference could be drawn that defendant possessed the screwdriver and icepick for the purpose of breaking into the building, so as to come within the proscription of this section as “other implements of housebreaking.” State v. Robinson, 115 N.C. App. 358, 444 S.E.2d 475, 1994 N.C. App. LEXIS 612 (1994).

Tire Tool Not Necessarily an Implement For Housebreaking. —

A tire tool is a part of the repair kit which the manufacturer delivers with each motor vehicle designed to run on pneumatic tires; not only is there lawful excuse for its possession, but there is little or no excuse for a motorist to be on the road without one. State v. Garrett, 263 N.C. 773 , 140 S.E.2d 315, 1965 N.C. LEXIS 1365 (1965).

There is some doubt whether a tire tool, under the ejusdem generis rule, is of the same classification as a picklock, key, or bit, and hence, condemned by this section. State v. Garrett, 263 N.C. 773 , 140 S.E.2d 315, 1965 N.C. LEXIS 1365 (1965); State v. Godwin, 3 N.C. App. 55, 164 S.E.2d 86, 1968 N.C. App. LEXIS 787 (1968).

But May Be Under Certain Circumstances. —

A tire tool was an implement of housebreaking within the meaning of this section where there was plenary circumstantial evidence which implied that defendant was in actual or constructive possession of the tire tool, that the tire tool was reasonably capable of use for the purpose of breaking into a building, and that defendant did in fact possess it for that purpose at the time and place of his arrest. State v. Bagley, 300 N.C. 736 , 268 S.E.2d 77, 1980 N.C. LEXIS 1115 (1980).

Small Screwdrivers, Tire Tool, Gloves, Flashlights, and Socks Held Not Implements of Housebreaking. —

Two small screwdrivers, a tire tool, gloves, flashlights, and socks in defendant’s possession at time store was broken into and entered by defendant were not other implements of housebreaking within the intent and meaning of this section. State v. Morgan, 268 N.C. 214 , 150 S.E.2d 377, 1966 N.C. LEXIS 1167 (1966).

Pistol is not an “implement of housebreaking” within the intent and meaning of this section. State v. Godwin, 269 N.C. 263 , 152 S.E.2d 152, 1967 N.C. LEXIS 1057 (1967).

In a prosecution under this section for having possession without lawful excuse of a crowbar, hack saw and automatic pistol, the burden is on the State to prove beyond a reasonable doubt that the possession of the implements was “without lawful excuse” within the spirit of the statute, and the possession of a pistol for personal protection, even though unauthorized, cannot be unlawful possession within the meaning of the statute. State v. Davis, 245 N.C. 146 , 95 S.E.2d 564, 1956 N.C. LEXIS 561 (1956).

Implements for Opening Car Doors. —

This section does not make it illegal to possess implements used for opening car doors. State v. Kersh, 12 N.C. App. 80, 182 S.E.2d 608, 1971 N.C. App. LEXIS 1288 (1971).

Ladder and Torch Not Housebreaking Implements. —

Neither a three-foot long ladder nor an acetylene torch with tanks mounted on a wheeled stand possessed by defendant was reasonably adapted for use in housebreaking, and they do not qualify as implements of housebreaking within the meaning of this section. State v. Puckett, 43 N.C. App. 596, 259 S.E.2d 310, 1979 N.C. App. LEXIS 3092 (1979).

Judicial Knowledge of Housebreaking Implements. —

Although a Stillson wrench, a brace, drills of varying sizes, detonating caps, flashlight batteries, gloves, dynamite, bullets, a drill chuck key, and other like articles, are articles having legitimate uses, the court will take judicial knowledge that they are, in combination, implements of housebreaking. State v. Baldwin, 226 N.C. 295 , 37 S.E.2d 898, 1946 N.C. LEXIS 435 (1946).

III.Practice and Procedure

Sufficiency of Indictment. —

An indictment under this section is not fatally defective because of its failure to enumerate any of the articles specified in the statute as implements of housebreaking when it does specify implements coming within the generic term of “implements of housebreaking.” State v. Morgan, 268 N.C. 214 , 150 S.E.2d 377, 1966 N.C. LEXIS 1167 (1966).

Surplusage in Indictment. —

Where a count in an indictment contains words set forth in the second offense defined in this section, namely, “having in his possession without lawful excuse,” those words are mere surplusage where the count sufficiently embraces the first offense defined in this section. State v. Hines, 15 N.C. App. 337, 190 S.E.2d 293, 1972 N.C. App. LEXIS 1915 (1972).

Reference in an indictment to the defendant’s possession of items not illegal under this section was mere surplusage and did not render the charge ambiguous since the indictment also charged the possession of specific items listed in the statute, and the proof showed that defendant possessed these specific items as well as other items which came within the generic term of implements of housebreaking. State v. Kersh, 12 N.C. App. 80, 182 S.E.2d 608, 1971 N.C. App. LEXIS 1288 (1971).

Possession of Bolt-Cutter Raises Inference of Unlawful Purpose. —

The conduct of defendants and the circumstances under which they were in possession of a bolt-cutter may raise the inference that its possession is for an unlawful purpose. State v. Shore, 10 N.C. App. 75, 178 S.E.2d 22, 1970 N.C. App. LEXIS 1190 (1970), cert. denied, 278 N.C. 105 , 179 S.E.2d 453, 1971 N.C. LEXIS 951 (1971).

It is reasonable to perceive that a burglar with a bolt-cutter, on the prowl to steal that which belongs to others, would clip a padlock and enter and steal from a service station building as readily as he would clip a metal band securing a vending machine and steal its contents. State v. Shore, 10 N.C. App. 75, 178 S.E.2d 22, 1970 N.C. App. LEXIS 1190 (1970), cert. denied, 278 N.C. 105 , 179 S.E.2d 453, 1971 N.C. LEXIS 951 (1971).

Jury Must Decide Conflicting Evidence. —

The evidence as to whether the possession of an implement was lawful, being in conflict, is for the jury to decide and a nonsuit would be improper. State v. Shore, 10 N.C. App. 75, 178 S.E.2d 22, 1970 N.C. App. LEXIS 1190 (1970), cert. denied, 278 N.C. 105 , 179 S.E.2d 453, 1971 N.C. LEXIS 951 (1971).

Testimony of Police May Be Competent Evidence of Possession of Burglary Tools. —

Testimony of police officers in regard to the lack of defendant’s need for certain tools in his employment may be competent evidence of possession of burglary tools without lawful excuse within this section. State v. Glaze, 24 N.C. App. 60, 210 S.E.2d 124, 1974 N.C. App. LEXIS 1928 (1974).

Ownership of Automobile and Location of Tools Therein Need Not Be Shown. —

Where the evidence tended to show that defendant was in control of an automobile, that he owned tools and had placed them therein, then who owned the automobile, and where the tools were located therein, were not essential elements which had to be shown in order to convict defendant of possession of burglary tools. State v. Kersh, 12 N.C. App. 80, 182 S.E.2d 608, 1971 N.C. App. LEXIS 1288 (1971).

Inference Where Accused Is Borrower of Vehicle Containing Contraband. —

Where contraband material, such as burglary tools, is under the control of an accused, even though the accused is the borrower of a vehicle, this fact is sufficient to give rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury. State v. Glaze, 24 N.C. App. 60, 210 S.E.2d 124, 1974 N.C. App. LEXIS 1928 (1974).

Rebuttal of Such Inference. —

If the owner of a vehicle loans the vehicle to an accused without telling him what is contained within the vehicle, the accused may offer evidence to that effect and thereby rebut the inference of knowledge and possession of the contents. State v. Glaze, 24 N.C. App. 60, 210 S.E.2d 124, 1974 N.C. App. LEXIS 1928 (1974).

Evidence Held Sufficient. —

Evidence tending to show that officers searched a car owned by defendant and to which defendant had the key, and found therein implements which, in combination, as a matter of common knowledge, are implements of housebreaking, is sufficient to overrule defendant’s motion to nonsuit in a prosecution under this section. State v. Baldwin, 226 N.C. 295 , 37 S.E.2d 898, 1946 N.C. LEXIS 435 (1946).

Evidence that implements of housebreaking were found in car which defendant was operating was sufficient to take the case to the jury in prosecution under this section. State v. Roberts, 82 N.C. App. 733, 348 S.E.2d 151, 1986 N.C. App. LEXIS 2616 (1986).

There was sufficient evidence to support the denial of defendant’s motion to dismiss and the jury’s finding that defendant possessed stolen goods under G.S. 14-71.1 and burglary tools under G.S. 14-55 as: (1) the camera and camcorder were stolen and both items were identified at trial; (2) the items were seized from a trailer, and defendant claimed the items belonged to defendant; and (3) a break-in had occurred at the victim’s office, and that the tools found with the camera and camcorder in the trailer were consistent with the tools typically used to break and enter locked properties. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250, 2007 N.C. App. LEXIS 1733 (2007).

Evidence Held Insufficient. —

The evidence failed to show that any of the articles found in the automobile was an implement made and designed for the express purpose of housebreaking, within the terms of this section. State v. Boyd, 223 N.C. 79 , 25 S.E.2d 456, 1943 N.C. LEXIS 207 (1943).

Upon an indictment charging possession, without lawful excuse, of a crowbar, hack saw and automatic pistol, in a prosecution under this section, the evidence was held insufficient to be submitted to the jury. State v. Davis, 245 N.C. 146 , 95 S.E.2d 564, 1956 N.C. LEXIS 561 (1956).

Evidence tending to show that defendant was a passenger in a car in which implements of housebreaking were found, without any evidence that defendant had any control whatsoever over either the automobile or the implements of housebreaking found therein, and without evidence showing when, where, or under what circumstances defendant entered the automobile, or disclosing his relationship or association with the driver thereof, is insufficient to be submitted to the jury in prosecution for possession of implements of housebreaking without lawful excuse. State v. Godwin, 269 N.C. 263 , 152 S.E.2d 152, 1967 N.C. LEXIS 1057 (1967).

Instruction on Elements of Offense Erroneous. —

Where defendant was charged with the first offense defined in this section, the trial court erred by instructing the jury on the first and second offense defined in this section when it substituted “implementation of housebreaking,” an element of the second offense, for “dangerous or offensive weapon,” an element of the first offense defined. State v. Hines, 15 N.C. App. 337, 190 S.E.2d 293, 1972 N.C. App. LEXIS 1915 (1972).

Instruction as to Tire Tool. —

In a prosecution for felonious possession of implements of storebreaking pursuant to this section, it was not error for the trial court to permit the jury to conclude that a tire tool was an implement of storebreaking, where there is abundant evidence to show that the tire tool was used in the breaking, no explanation appears of record which would justify the presence of the tire tool inside the store after the breaking, no suggestion appears of record that any automobile tire was in need of or receiving repair on the premises in question at the time defendant and his companion were apprehended, and the jury was properly instructed on the principles of actual and constructive possession. State v. Bagley, 43 N.C. App. 171, 258 S.E.2d 427, 1979 N.C. App. LEXIS 3052 (1979), aff'd, 300 N.C. 736 , 268 S.E.2d 77, 1980 N.C. LEXIS 1115 (1980).

§ 14-56. Breaking or entering into or breaking out of railroad cars, motor vehicles, trailers, aircraft, boats, or other watercraft.

  1. If any person, with intent to commit any felony or larceny therein, breaks or enters any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind, containing any goods, wares, freight, or other thing of value, or, after having committed any felony or larceny therein, breaks out of any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind containing any goods, wares, freight, or other thing of value, that person is guilty of a Class I felony. It is prima facie evidence that a person entered in violation of this section if he is found unlawfully in such a railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft.

    (a1) If any person violates subsection (a) of this section, that person is guilty of a Class H felony if both of the following conditions are met:

    1. The railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind is owned or operated by any law enforcement agency, the North Carolina National Guard, or any branch of the Armed Forces of the United States.
    2. The person knows or reasonably should know that the railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind is owned or operated by any law enforcement agency, the North Carolina National Guard, or any branch of the Armed Forces of the United States.
  2. It shall not be a violation of this section for any person to break or enter any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind to provide assistance to a person inside the railroad car, motor vehicle, trailer, aircraft, boat, or watercraft of any kind if one or more of the following circumstances exist:
    1. The person acts in good faith to access the person inside the railroad car, motor vehicle, trailer, aircraft, boat, or watercraft of any kind in order to provide first aid or emergency health care treatment or because the person inside is, or is in imminent danger of becoming unconscious, ill, or injured.
    2. It is reasonably apparent that the circumstances require prompt decisions and actions in medical, other health care, or other assistance for the person inside the railroad car, motor vehicle, trailer, aircraft, boat, or watercraft of any kind.
    3. The necessity of immediate health care treatment or removal of the person from the railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind is so reasonably apparent that any delay in the rendering of treatment or removal would seriously worsen the physical condition or endanger the life of the person.

History. 1907, c. 468; C.S., s. 4237; 1969, c. 543, s. 5; 1979, c. 437; c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 10; 1981, c. 63, s. 1; c. 179, s. 14; 2015-286, s. 3.3(a); 2021-167, s. 1.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor's Note.

Session Laws 2021-167, s. 3, made subsection (a1) of this section, as added by Session Laws 2021-167, s. 1, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2015-286, s. 3.3(a), effective December 1, 2015, designated the existing language as subsection (a); and added subsection (b). For applicability, see Editor’s note.

Session Laws 2021-167, s. 1, added subsection (a1). For effective date and applicability, see editor's note.

CASE NOTES

Gravamen of the offense is the breaking and entering with intent to commit larceny. State v. Harrington, 15 N.C. App. 602, 190 S.E.2d 280, 1972 N.C. App. LEXIS 1989 (1972).

Actual Larceny Need Not Be Completed. —

The language of this section does not require the actual larceny of anything in order to convict of felonious breaking or entering. It is the breaking or entering with intent to commit larceny that is proscribed. State v. Kirkpatrick, 34 N.C. App. 452, 238 S.E.2d 615, 1977 N.C. App. LEXIS 1717 (1977).

The success of the larceny venture does not determine the grade of the breaking or entering as defendants argue. It is only necessary to establish the intent to commit larceny in order to establish a felonious breaking or entering of the motor vehicle. State v. Kirkpatrick, 34 N.C. App. 452, 238 S.E.2d 615, 1977 N.C. App. LEXIS 1717 (1977).

Larceny May Be Felony or Misdemeanor. —

This section makes it a felony to break or enter a motor vehicle containing any goods, wares, freight or other thing of value with intent to commit larceny, whether the larceny be felonious or misdemeanor larceny. State v. Kirkpatrick, 34 N.C. App. 452, 238 S.E.2d 615, 1977 N.C. App. LEXIS 1717 (1977).

Subject of Larceny. —

Papers, a shoe bag and cigarettes are without question personal property, and as such they may be the subject of larceny within the meaning of this section. State v. Quick, 20 N.C. App. 589, 202 S.E.2d 299, 1974 N.C. App. LEXIS 2499 (1974).

Items Listed Characterized by High Degree of Mobility. —

Items listed in G.S. 14-54 denote qualities of permanence and immobility, while those listed in this section are characterized by a high degree of mobility. State v. Douglas, 54 N.C. App. 85, 282 S.E.2d 832, 1981 N.C. App. LEXIS 2795 (1981).

The chief distinction between the categories of items enumerated in G.S. 14-54 and this section is the property of permanence. The items listed in G.S. 14-54 denote the qualities of permanence and immobility while those listed in this section are characterized by a high degree of mobility. State v. Bost, 55 N.C. App. 612, 286 S.E.2d 632, 1982 N.C. App. LEXIS 2242 (1982).

When “Trailers,” etc., Qualify as Buildings Under G.S. 14-54 . —

Whether “trailers,” “railroad cars” or other items specifically named in this section qualify as “buildings” under G.S. 14-54 depends upon the circumstances in each case; they may qualify as “buildings” if under the circumstances of their use and location at the time in question they have lost their character of mobility and have attained a character of permanence. State v. Bost, 55 N.C. App. 612, 286 S.E.2d 632, 1982 N.C. App. LEXIS 2242 (1982).

The term “trailer” and other property specifically named in this section applies to the specifically named property when being primarily used for its intended purpose. State v. Bost, 55 N.C. App. 612, 286 S.E.2d 632, 1982 N.C. App. LEXIS 2242 (1982).

Mobile Home Not Covered by Section. —

A mobile home, as used in the sense of a residence, distinctly differs in terms of mobility from a “trailer” which is used to haul goods and personal property from place to place or for camping or vacation purposes, as the chief quality of the latter is its mobility, while the former is normally anchored to a foundation and left stationary; thus, a mobile home is a building within the meaning of G.S. 14-54 and is not covered by this section. State v. Douglas, 54 N.C. App. 85, 282 S.E.2d 832, 1981 N.C. App. LEXIS 2795 (1981).

Trailer on Construction Site. —

A trailer used for the storage of tools and equipment of a construction company on the construction site during the building of a bridge lost its characteristics of mobility and became a structure used primarily for storage of property so that it attained the status of a building within the meaning of G.S. 14-54 . State v. Bost, 55 N.C. App. 612, 286 S.E.2d 632, 1982 N.C. App. LEXIS 2242 (1982).

Chain Lock on Hood of Car Does Not Preclude Finding of Entry. —

The mere fact that a chain lock on the hood of a car prevented the hood from opening beyond 12-18 inches did not preclude a finding that there was an entry. State v. Nealy, 64 N.C. App. 663, 308 S.E.2d 343, 1983 N.C. App. LEXIS 3343 (1983), cert. denied, 310 N.C. 155 , 311 S.E.2d 295, 1984 N.C. LEXIS 1607 (1984).

Entitlement to Charge on Lesser Degree of Offense. —

Mere fact that defendant was not successful in his effort to commit a felony within the vehicle in which he was caught did not entitle him to a charge on a lesser degree of the crime charged. State v. Carver, 96 N.C. App. 230, 385 S.E.2d 145, 1989 N.C. App. LEXIS 958 (1989).

Evidence Held to Establish Entry. —

Although there was no testimony that either defendant was actually seen with a portion of his body under the hood of the car, testimony of the arresting officer that one defendant was squatting down and looking up under the hood, which the other defendant was trying to raise, led to the obvious conclusion that there was an entry. Certainly, when one raises the hood of a car he must first extend some portion of his hand beneath the hood to release the hood latch. State v. Nealy, 64 N.C. App. 663, 308 S.E.2d 343, 1983 N.C. App. LEXIS 3343 (1983), cert. denied, 310 N.C. 155 , 311 S.E.2d 295, 1984 N.C. LEXIS 1607 (1984).

Possession of Recently Stolen Goods. —

In a prosecution under this section, the doctrine of possession of recently stolen goods does not apply unless there is proof that the property had been stolen. State v. McKay, 32 N.C. App. 61, 231 S.E.2d 22, 1977 N.C. App. LEXIS 1856 (1977).

In a prosecution under this section, the doctrine of inference of guilt derived from the possession of recently stolen goods applies only when the possession is of a kind which manifests that the stolen goods came to the possessor by his own act or with his undoubted concurrence, and so recently and under such circumstances as to give reasonable assurance that such possession could not have been obtained unless the holder was himself the thief. State v. McKay, 32 N.C. App. 61, 231 S.E.2d 22, 1977 N.C. App. LEXIS 1856 (1977).

Possession of recently stolen goods does not have to be such that the goods are actually in the hands or on the person of the accused. It is sufficient if the property was under his exclusive personal control. State v. McKay, 32 N.C. App. 61, 231 S.E.2d 22, 1977 N.C. App. LEXIS 1856 (1977).

Allegation of Ownership of Vehicle and Property Therein. —

Where the bill of indictment specifically lays the ownership of the property contained in the motor vehicle in another named person, thereby negating the possibility of defendant’s breaking and entering the vehicle to steal his own property, and the motor vehicle involved is described in detail and its possession is alleged to be in another, the technical ownership of the vehicle broken into is immaterial. State v. Harrington, 15 N.C. App. 602, 190 S.E.2d 280, 1972 N.C. App. LEXIS 1989 (1972).

Lack of Consent. —

Lack of vehicle owner’s consent is not an element of an offense under this section; however, where there was circumstantial evidence, based upon which lack of consent could be inferred (i.e., locked doors), and other evidence to support trial court’s finding that defendant had committed the offense charged, defendant’s motion to dismiss was properly denied. State v. Carver, 96 N.C. App. 230, 385 S.E.2d 145, 1989 N.C. App. LEXIS 958 (1989).

The State’s evidence was sufficient for submission of the question to the jury as to whether an entry had been committed by the defendant where the defendant was standing on the street at the open door of a van with the upper part of his body inside the van. State v. Sneed, 38 N.C. App. 230, 247 S.E.2d 658, 1978 N.C. App. LEXIS 2135 (1978).

Evidence of Control by Defendant Lacking. In a prosecution for breaking and entering a motor vehicle and larceny, evidence that defendant was present in the vehicle containing stolen items and with individuals who had attempted to negotiate stolen traveler’s checks, without any evidence that any of the stolen items were under the actual control of defendant, is insufficient to carry the question of defendant’s guilt to the jury. State v. Millsaps, 29 N.C. App. 176, 223 S.E.2d 559, 1976 N.C. App. LEXIS 2407 (1976).

Section 20-107(a) Not a Lesser Included Offense of This Section. —

A lesser included offense is one which is composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense; while most of the elements of G.S. 20-107 (a) are present in this section, neither injuring or tampering with the vehicle itself nor breaking or removing a part of it (elements of G.S. 20-107 ) are part of the greater offense found in this section. State v. Carver, 96 N.C. App. 230, 385 S.E.2d 145, 1989 N.C. App. LEXIS 958 (1989).

G.S. 20-107 (a) prohibits any person from willfully injuring or tampering with any vehicles or breaking or removing any part or parts of or from a vehicle without the consent of the owner; while most of the elements of G.S. 20-107 (a) are present in G.S. 14-56 , neither injuring or tampering with the vehicle itself, nor breaking or removing a part of the car are part of the greater offense, and thus, neither part of G.S. 20-107 is a lesser included offense of G.S. 14-56 . State v. Jackson, 162 N.C. App. 695, 592 S.E.2d 575, 2004 N.C. App. LEXIS 265 (2004).

Where the record was devoid of evidence that victim’s vehicle contained any items of even trivial value that belonged to the victim or to anyone else, the trial court erred in submitting the issue of defendant’s guilt of this offense to the jury. State v. McLaughlin, 321 N.C. 267 , 362 S.E.2d 280, 1987 N.C. LEXIS 2566 (1987).

Trivial effects found in a vehicle, which are sufficient to cause the charge to go to the jury on the fourth element for breaking and entering a motor vehicle, are effects that are not inherently a part of the functioning vehicle. Where the State’s only proof of that element was proof that a car that was on an auto dealership lot for detailing and resale contained the keys and parts of the car, the fourth element was not met, and it was error to submit the charge to the jury. State v. Jackson, 162 N.C. App. 695, 592 S.E.2d 575, 2004 N.C. App. LEXIS 265 (2004).

In a case in which defendant appealed his conviction for violating G.S. 14-56 , the trial court erred in denying his motion to dismiss as the State failed to present evidence that the truck contained any items of value apart from objects installed in the truck. There was no testimony that the truck contained anything of even trivial value other than components installed in the truck, and, under the Jackson decision, the tape player and speakers—part of the functioning truck—were not sufficient to prove element four of the offense of breaking and entering a motor vehicle. State v. McDowell, 217 N.C. App. 634, 720 S.E.2d 423, 2011 N.C. App. LEXIS 2591 (2011).

State presented insufficient evidence that the truck contained “goods, wares, freight, or other thing of value” an essential element of felony breaking or entering a motor vehicle, and therefore defendant’s conviction was reversed, because the record was devoid of any evidence that the truck contained an item of even trivial value, and there was no evidence that anything had been taken from inside the truck. While the testimony that there was “some stuff scattered around” the vehicle was evidence that things may have been in the vehicle, such testimony was not evidence that those things were even of a trivial value. State v. McKoy, 2021 N.C. App. LEXIS 258 (June 1, 2021).

Sufficiency of Indictment. —

Trial court had jurisdiction to try defendant for violating G.S. 14-56 because the indictment charging defendant with breaking or entering into a motor vehicle with the intent to commit larceny of the same motor vehicle contained no fatal defect, in that the remaining elements of the offense were also charged in the indictment. State v. Clark, 208 N.C. App. 388, 702 S.E.2d 324, 2010 N.C. App. LEXIS 2435 (2010).

Evidence Sufficient to Show Each Element. —

Where the evidence showed that defendant, along with two others, walked toward a truck, and that, after a loud noise defendant and the others then emerged carrying boxes of wine, and where it further showed that, the next morning, the padlock to the tractor trailer was missing and, when the truck was opened, wine was discovered missing, this evidence was sufficient to show each of the elements of the crime charged under this section, and that defendant actively participated in the breaking and entering. State v. Riggs, 100 N.C. App. 149, 394 S.E.2d 670, 1990 N.C. App. LEXIS 895 (1990).

There was sufficient evidence to support a conviction for breaking or entering a motor vehicle with an intent to commit larceny where defendant shared a common purpose with his co-defendant to open a truck, to wrongfully remove a satchel with an intent to deprive the victim of the satchel and its contents, and to appropriate them to defendant’s use. Although the co-defendant broke into the vehicle and grabbed a satchel, defendant hastily drove away from the scene with his co-defendant in the passenger seat, holding the satchel. State v. Baskin, 190 N.C. App. 102, 660 S.E.2d 566, 2008 N.C. App. LEXIS 895 (2008).

For purposes of a conviction for breaking and entering a motor vehicle, evidence of either a breaking or an entering satisfies the State’s burden of proof on the first element. State v. Mitchell, 234 N.C. App. 423, 759 S.E.2d 335, 2014 N.C. App. LEXIS 600 (2014).

Trial court did not err in denying the defendant’s motion to dismiss the charge of breaking and entering a motor vehicle because the State presented substantial evidence that the defendant opened the car door, or, alternatively, an accomplice opened the door and was acting in concert with the defendant; and the defendant, or the accomplice acting in concert with the defendant, intended to steal the vehicle. State v. Mitchell, 234 N.C. App. 423, 759 S.E.2d 335, 2014 N.C. App. LEXIS 600 (2014).

Evidence Not Sufficient to Support Conviction Under This Section. —

Where the evidence tended to show that defendant grabbed victim and at gunpoint forced her back into her automobile, that defendant bound victim, kidnapped her, committed armed robbery and returned victim to hospital parking lot, the evidence supported convictions for second-degree kidnapping and robbery with dangerous weapon and might have supported verdicts for other offenses had they been charged, but did not support conviction for breaking or entering motor vehicle. State v. Ellis, 100 N.C. App. 591, 397 S.E.2d 518, 1990 N.C. App. LEXIS 1073 (1990), cert. denied, 328 N.C. 273 , 400 S.E.2d 457, 1991 N.C. LEXIS 141 (1991).

There was insufficient evidence to establish defendant’s intent to commit larceny, as circumstantial evidence showed defendant’s intent was to show a companion how to break glass, and they left the scene once they heard the window of a vehicle break; there was no attempt to enter the vehicle and nothing was removed from it. State v. Chillo, 208 N.C. App. 541, 705 S.E.2d 394, 2010 N.C. App. LEXIS 2391 (2010).

With regards to the rule that it is not error for the trial court to instruct on breaking or entering when a defendant is charged with “breaking and entering,” the rule is applicable to the element of “breaking or entering” regardless of whether the defendant “breaks or enters” a motor vehicle or a dwelling house; thus, the trial court did not err in instructing the jury on “breaking or entering” on defendant’s charge of breaking and entering a motor vehicle. State v. Mitchell, 234 N.C. App. 423, 759 S.E.2d 335, 2014 N.C. App. LEXIS 600 (2014).

§ 14-56.1. Breaking into or forcibly opening coin- or currency-operated machines.

Any person who forcibly breaks into, or by the unauthorized use of a key or other instrument opens, any coin- or currency-operated machine with intent to steal any property or moneys therein shall be guilty of a Class 1 misdemeanor, but if such person has previously been convicted of violating this section, such person shall be punished as a Class I felon. The term “coin- or currency-operated machine” shall mean any coin- or currency-operated vending machine, pay telephone, telephone coin or currency receptacle, or other coin- or currency-activated machine or device.

There shall be posted on the machines referred to in G.S. 14-56.1 a decal stating that it is a crime to break into vending machines, and that a second offense is a felony. The absence of such a decal is not a defense to a prosecution for the crime described in this section.

History. 1963, c. 814, s. 1; 1977, c. 723, ss. 1, 3; 1979, c. 760, s. 5; c. 767, s. 1; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 27, 1153; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Identification of Owner of Property Not An Element. —

Relying on an analogous statute, G.S. 14-54(a) , prohibiting breaking and entering, the appellate court found that the identification of the owner of the property was not an element of breaking into a coin-operated machine under G.S. 14-56.1 ; therefore, defendant was properly convicted of breaking into a coin-operated machine, although the State did not allege that the owner of the property was a natural person or a person capable of owning property. State v. Price, 170 N.C. App. 672, 613 S.E.2d 60, 2005 N.C. App. LEXIS 1085 (2005).

§ 14-56.2. Damaging or destroying coin- or currency-operated machines.

Any person who shall willfully and maliciously damage or destroy any coin- or currency-operated machine shall be guilty of a Class 1 misdemeanor. The term “coin- or currency-operated machine” shall be defined as set out in G.S. 14-56.1 .

History. 1963, c. 814, s. 2; 1977, c. 723, s. 2; 1993, c. 539, s. 28; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-56.3. Breaking into paper currency machines.

Any person, who with intent to steal any moneys therein forcibly breaks into any vending or dispensing machine or device which is operated or activated by the use, deposit or insertion of United States paper currency, shall be guilty of a Class 1 misdemeanor, but if such person has previously been convicted of violating this section, such person shall be punished as a Class I felon.

There shall be posted on the machines referred to in this section a decal stating that it is a crime to break into paper currency machines. The absence of such a decal is not a defense to a prosecution for the crime described in this section.

History. 1977, c. 853, ss. 1, 2; 1979, c. 760, s. 5; c. 767, s. 2; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 29, 115; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-56.4. Preparation to commit breaking or entering into motor vehicles.

  1. For purposes of this section:
    1. “Manipulative key” means a key, device or instrument, other than a key that is designed to operate a specific lock, that can be variably positioned and manipulated in a vehicle keyway to operate a lock or cylinder or multiple locks or cylinders, including a wiggle key, jiggle key, or rocket key.
    2. “Master key” means a key that operates all the keyed locks or cylinders in a similar type or group of locks.
  2. It is unlawful for any person to possess any motor vehicle master key, manipulative key, or other motor vehicle lock-picking device or hot wiring device, with the intent to commit any felony, larceny, or unauthorized use of a motor propelled conveyance.
  3. It is unlawful for a person to willfully buy, sell, or transfer a motor vehicle master key, manipulative key or device, key-cutting device, lock pick or lock-picking device, or hot wiring device, designed to open or capable of opening the door or trunk of any motor vehicle or of starting the engine of a motor vehicle for use in any manner prohibited by this section.
  4. Violation of this section is a Class 1 misdemeanor. A second or subsequent violation of this section is a Class I felony.
  5. This section shall not apply to any person who is a dealer of new or used motor vehicles, a car rental agent, a locksmith, an employee of a towing service, an employee of an automotive repair business, a person who is lawfully repossessing a vehicle, or a state, county, or municipal law enforcement officer, when that person is acting within the scope of the person’s official duties or employment. This section shall not apply to a business which has a key-cutting device located and used on the premises for the purpose of making replacement keys for the owner or person who is in lawful custody of a vehicle.

History. 2005-352, s. 1.

§ 14-57. Burglary with explosives.

Any person who, with intent to commit any felony or larceny therein, breaks and enters, either by day or by night, any building, whether inhabited or not, and opens or attempts to open any vault, safe, or other secure place by use of nitroglycerine, dynamite, gunpowder, or any other explosive, or acetylene torch, shall be deemed guilty of burglary with explosives. Any person convicted under this section shall be punished as a Class D felon.

History. 1921, c. 5; C.S., s. 4237(a); 1969, c. 543, s. 6; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1155; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

“Burglary with explosives” was unknown to the common law. Obviously, it is separate and distinct from the crime of burglary named in G.S. 14-51 . United States v. Brandenburg, 144 F.2d 656, 1944 U.S. App. LEXIS 2902 (3d Cir. 1944).

This section is not void for vagueness. Dean v. North Carolina, 269 F. Supp. 986, 1967 U.S. Dist. LEXIS 8812 (M.D.N.C. 1967).

Larceny is a felony regardless of the value of property stolen, if committed pursuant to a violation of G.S. 14-51 , 14-53, 14-54 or 14-57. State v. Smith, 66 N.C. App. 570, 312 S.E.2d 222, 1984 N.C. App. LEXIS 2952 (1984).

Article 15. Arson and Other Burnings.

§ 14-58. Punishment for arson.

There shall be two degrees of arson as defined at the common law. If the dwelling burned was occupied at the time of the burning, the offense is arson in the first degree and is punishable as a Class D felony. If the dwelling burned was unoccupied at the time of the burning, the offense is arson in the second degree and is punishable as a Class G felony.

History. R.C., c. 34, s. 2; 1870-1, c. 222; Code, s. 985; Rev., s. 3335; C.S., s. 4238; 1941, c. 215, s. 2; 1949, c. 299, s. 3; 1973, c. 1201, s. 4; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1156; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to eligibility of prisoners serving life sentence for parole, see G.S. 15A-1371 .

As to arrests and prosecutions by Attorney General, see G.S. 58-79-5 .

Legal Periodicals.

For article, “Capital Punishment and Life Imprisonment in North Carolina, 1946 to 1968: Implications for Abolition of the Death Penalty,” see 6 Wake Forest Intra. L. Rev. 417 (1970).

For comment on capital punishment in North Carolina, see 59 N.C.L. Rev. 911 (1981).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For article, “Evidence on Fire,” see 97 N.C.L. Rev. 483 (2019).

Council of State Special Prosecutor Pilot Project

Session Laws 2017-57, s. 18B.13, as added by Session Laws 2017-197, s. 5.7, provides: “(a) Pilot Project. — The Administrative Office of the Courts, in consultation with the Conference of District Attorneys, may appoint up to two special prosecutors per Council of State member at the member’s request to aid local district attorneys’ offices in prosecuting cases arising under Article 15 of Chapter 14 of the North Carolina General Statutes, violations of Chapter 58 of the North Carolina General Statutes, and violations of Chapter 14 of the North Carolina General Statutes as they relate to insurance fraud. Attorneys appointed as special prosecutors under this program shall be agency attorneys currently employed in the department of the requesting Council of State member and shall have a physical office in the local district attorney’s office throughout the duration of the special appointment. Special prosecutors shall report to the Director of the Administrative Office of the Courts or the director’s designee on all cases related to the special appointment. Nothing in this section shall be construed to authorize the hiring of additional personnel or outside counsel.

“(b) The Administrative Office of the Courts, in conjunction with the agencies that utilize the pilot program set out in subsection (a), shall report to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by April 1, 2018. The report shall include the results of the pilot program and recommendations on whether the program should be extended.

“(c) This section expires June 30, 2019, and all pending cases shall remain within the local district attorney’s office for prosecution by attorneys employed by that office.”

CASE NOTES

Purpose. —

The main purpose of common law arson is to protect against danger to those persons who might be in the dwelling house which is burned. Where there are several apartments in a single building, this purpose can be served only by subjecting to punishment for arson any person who sets fire to any part of the building. State v. Jones, 296 N.C. 75 , 248 S.E.2d 858, 1978 N.C. LEXIS 1161 (1978); State v. Wyatt, 48 N.C. App. 709, 269 S.E.2d 717, 1980 N.C. App. LEXIS 3316 (1980).

Legislative Intent. —

The intent of the Legislature in enacting G.S. 14-58.1 and G.S. 14-58.2 was to extend protection against wilful and malicious burning to mobile and manufactured housing, it did not intend to remove that protection when, in 1979, it amended this section and G.S. 14-58.2 to classify the crime of arson in separate degrees for sentencing purposes. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

Common-Law Offense. —

Arson is not defined by statute but is a common-law offense. State v. Arnold, 285 N.C. 751 , 208 S.E.2d 646, 1974 N.C. LEXIS 1135 (1974); State v. Allen, 322 N.C. 176 , 367 S.E.2d 626, 1988 N.C. LEXIS 295 (1988).

Specific intent is not an essential element of the crime of common-law arson. State v. White, 291 N.C. 118 , 229 S.E.2d 152, 1976 N.C. LEXIS 938 (1976).

In this State, the crime of arson has not been defined by statute, therefore the common-law definition of arson remains in force. State v. Vickers, 306 N.C. 90 , 291 S.E.2d 599, 1982 N.C. LEXIS 1381 (1982); State v. Allen, 322 N.C. 176 , 367 S.E.2d 626, 1988 N.C. LEXIS 295 (1988).

First-degree arson is an offense against both persons and property. State v. Allen, 322 N.C. 176 , 367 S.E.2d 626, 1988 N.C. LEXIS 295 (1988).

Evidence that defendant carried out his plan to murder and rob the victim and then burned the evidence of those crimes as parts of one continuous transaction was sufficient to support defendant’s conviction for first-degree arson. State v. Jaynes, 342 N.C. 249 , 464 S.E.2d 448, 1995 N.C. LEXIS 673 (1995), cert. denied, 518 U.S. 1024, 116 S. Ct. 2563, 135 L. Ed. 2d 1080, 1996 U.S. LEXIS 4166 (1996).

“Arson” Defined. —

As defined at common law, arson is the willful and malicious burning of the dwelling house of another person. State v. Vickers, 306 N.C. 90 , 291 S.E.2d 599, 1982 N.C. LEXIS 1381 (1982); State v. Eubanks, 83 N.C. App. 338, 349 S.E.2d 884, 1986 N.C. App. LEXIS 2700 (1986).

“Burning”. —

To satisfy the proof of a “burning” it is not necessary that the building be wholly consumed or even materially damaged. It is sufficient if any part, however small, is consumed. A building is burned within the common-law definition of arson when it is charred. State v. Shaw, 305 N.C. 327 , 289 S.E.2d 325, 1982 N.C. LEXIS 1269 (1982).

The crime of arson is consummated by the burning of any, the smallest part of the house, and it is burned within the common-law definition of the offense when it is charred, that is, when the wood is reduced to coal and its identity changed, but not merely scorched or discolored by heat. State v. Oxendine, 305 N.C. 126 , 286 S.E.2d 546, 1982 N.C. LEXIS 1246 (1982).

Some portion of the dwelling itself, in contrast to its mere contents, must be burned to constitute arson; however, the least burning of any part of the building, no matter how small, is sufficient, and it is not necessary that the building be consumed or materially damaged by the fire. State v. Oxendine, 305 N.C. 126 , 286 S.E.2d 546, 1982 N.C. LEXIS 1246 (1982).

The “burning” element of arson requires that some portion of the dwelling itself be burned. State v. Eubanks, 83 N.C. App. 338, 349 S.E.2d 884, 1986 N.C. App. LEXIS 2700 (1986).

“Dwelling house” as contemplated in the definition of arson means an inhabited house. State v. Vickers, 306 N.C. 90 , 291 S.E.2d 599, 1982 N.C. LEXIS 1381 (1982).

A house is a “dwelling house” if someone lives there. State v. Eubanks, 83 N.C. App. 338, 349 S.E.2d 884, 1986 N.C. App. LEXIS 2700 (1986).

Mobile Homes and Manufactured Housing. —

It is certainly common knowledge that many of our citizens inhabit mobile homes and manufactured housing and we hold the words “dwelling” and “dwelling house” apply to those structures as surely as those made of lumber and brick. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

The malicious and willful burning of a mobile home which is used as a dwelling and which is unoccupied at the time of the burning constitutes second degree arson. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

Dwelling of “Another”. —

The need for protection from willful and malicious burning of a dwelling house is so compelling that the common-law arson requirement that the dwelling burned be that of “another” is satisfied by a showing that some other person or persons, together with the arsonist, were joint occupants of the same dwelling unit. State v. Shaw, 305 N.C. 327 , 289 S.E.2d 325, 1982 N.C. LEXIS 1269 (1982).

A house is the dwelling house “of another” if someone other than the defendant lives there. State v. Eubanks, 83 N.C. App. 338, 349 S.E.2d 884, 1986 N.C. App. LEXIS 2700 (1986).

If a dweller in an apartment house burns the building, he or she is guilty of arson, even if the fire is confined to the rooms occupied by the wrongdoer, because the building is the dwelling house of the other tenants. State v. Allen, 322 N.C. 176 , 367 S.E.2d 626, 1988 N.C. LEXIS 295 (1988).

For a burning to be “willful and malicious” in the law of arson, it must simply be done voluntarily, without excuse or justification, and without any bona fide claim of right. An intent or animus against either the property itself or its owner is not an element of the offense of common-law arson. State v. Allen, 322 N.C. 176 , 367 S.E.2d 626, 1988 N.C. LEXIS 295 (1988).

Property Must Be Inhabited. —

Since arson is an offense against the security of the habitation and not the property, an essential element of the crime is that the property be inhabited by some person. State v. Vickers, 306 N.C. 90 , 291 S.E.2d 599, 1982 N.C. LEXIS 1381 (1982).

Continuous Transaction. —

A dwelling is occupied for purposes of the arson statute when the interval between the mortal blow and the burning is short, and the murder and the arson constitute parts of a continuous transaction. State v. Campbell, 332 N.C. 116 , 418 S.E.2d 476, 1992 N.C. LEXIS 363 (1992).

Temporary Absence of Occupants. —

Common-law arson results from the burning of a dwelling even if its occupants are temporarily absent at the time of the burning. State v. Vickers, 306 N.C. 90 , 291 S.E.2d 599, 1982 N.C. LEXIS 1381 (1982).

Inhabitant’s Death Renders Property Uninhabited. —

While temporary absence from a dwelling will not affect its status as an inhabited dwelling, an inhabitant’s death certainly renders it uninhabited since someone must “live” in a dwelling for it to be “inhabited.” State v. Ward, 93 N.C. App. 682, 379 S.E.2d 251, 1989 N.C. App. LEXIS 398 (1989).

Property Was Not Inhabited Where Occupants Permanently Absent. —

Where there were only two inhabitants of the trailer before it burned and the State’s evidence showed the trailer was uninhabited at the time it was burned as one inhabitant had been murdered and the other inhabitant had disconnected the power to the trailer and vacated it, defendant could not be convicted of common law arson since both prior inhabitants of the trailer were permanently absent from the trailer at the time it was burned. State v. Ward, 93 N.C. App. 682, 379 S.E.2d 251, 1989 N.C. App. LEXIS 398 (1989).

No evidence was needed to prove that dwelling was “occupied” for purposes of this section, where the burning of a downstairs apartment, after the murder of that apartment’s tenant, and the murder of an upstairs victim were parts of a continuous transaction. State v. Parker, 350 N.C. 411 , 516 S.E.2d 106, 1999 N.C. LEXIS 424 (1999), cert. denied, 528 U.S. 1084, 120 S. Ct. 808, 145 L. Ed. 2d 681, 2000 U.S. LEXIS 246 (2000).

Burning of Interior Wallpaper Substantiates Charring. —

Wallpaper affixed to an interior wall is unquestionably a part of the dwelling’s framework, and where the evidence discloses that the wallpaper in a dwelling has been burned, it competently substantiates the charring element of arson. State v. Oxendine, 305 N.C. 126 , 286 S.E.2d 546, 1982 N.C. LEXIS 1246 (1982).

Common-law definition of arson is still in force in this State. State v. Long, 243 N.C. 393 , 90 S.E.2d 739, 1956 N.C. LEXIS 355 (1956); State v. Gulley, 46 N.C. App. 822, 266 S.E.2d 8, 1980 N.C. App. LEXIS 2930 (1980).

Second-Degree Arson — Defined. —

Under this section, if the dwelling that burned was unoccupied at the time of the burning, the offense is arson in the second degree. State v. Eubanks, 83 N.C. App. 338, 349 S.E.2d 884, 1986 N.C. App. LEXIS 2700 (1986).

Second-Degree Arson — Elements. —

Combining the definitions found in the common law definition of arson and those found in this section, the court found the elements of second-degree arson to be: (1) the malicious and willful (2) burning of a structure; (3) which is the dwelling house of another; and (4) which is unoccupied at the time of the burning. State v. Jones, 110 N.C. App. 289, 429 S.E.2d 410, 1993 N.C. App. LEXIS 457 (1993).

Same — Evidence Held Sufficient. —

Evidence held sufficient to support conviction of second-degree arson. State v. Eubanks, 83 N.C. App. 338, 349 S.E.2d 884, 1986 N.C. App. LEXIS 2700 (1986).

Second-Degree Arson — Not Submitted. —

Defendant was not entitled to submit second degree arson as a possible verdict where, during the time which elapsed between the murder and the arson, the defendant took additional actions designed to further his “criminal scheme,” i.e., defendant and co-defendant disposed of the murder weapon, burned their blood-soiled clothes, purchased gasoline to ignite the fire at the victim’s house, and set the house on fire. State v. Holder, 138 N.C. App. 89, 530 S.E.2d 562, 2000 N.C. App. LEXIS 552 (2000).

Sufficiency of Indictment. —

An indictment was sufficient to charge defendant with common-law arson of an apartment where it alleged that apartment 9F was burned and apartment 9E was occupied by a named person, since Building 9 of the apartments, comprised of apartments A through F, constituted one dwelling house such that the requirement of a burning could be satisfied by the charring in 9F while the requirement of occupancy could be satisfied by the tenant’s presence in 9E. State v. Wyatt, 48 N.C. App. 709, 269 S.E.2d 717, 1980 N.C. App. LEXIS 3316 (1980).

Even though the statutory reference was incorrect, the body of the indictment was sufficient to properly charge defendant with the burning of a mobile home. State v. Jones, 110 N.C. App. 289, 429 S.E.2d 410, 1993 N.C. App. LEXIS 457 (1993).

Validity of Trial Upheld. —

Although indictments charging attempted first-degree arson recited that the charges were brought pursuant to this section, they actually charged a violation of G.S. 14-67 which prohibits attempted arson; this mistake in the citation of the statute did not affect the validity of the trial. State v. Barnes, 333 N.C. 666 , 430 S.E.2d 223, 1993 N.C. LEXIS 241 , cert. denied, 510 U.S. 946, 114 S. Ct. 387, 126 L. Ed. 2d 336, 1993 U.S. LEXIS 6721 (1993).

Aggravating and Mitigating Factors. —

It is incorrect for the trial judge to find as an aggravating factor the fact that the inhabitants were not at home when the offense was committed. If anything, this should be considered a mitigating factor. State v. Jones, 59 N.C. App. 472, 297 S.E.2d 132, 1982 N.C. App. LEXIS 3144 (1982).

It is not an appropriate aggravating factor for a trial court to consider that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person when defendant is convicted of first degree arson. State v. Waters, 87 N.C. App. 502, 361 S.E.2d 416, 1987 N.C. App. LEXIS 3220 (1987).

Evidence held admissible in prosecution for arson as tending to show ill will towards occupants of house burned and as being part of res gestae. State v. Smith, 225 N.C. 78 , 33 S.E.2d 472, 1945 N.C. LEXIS 257 (1945).

Evidence Sufficient to Defeat Motion to Dismiss. —

Trial court properly denied defendant’s motion to dismiss a charge of first-degree arson; evidence which indicated that defendant had threatened to burn the victims, was in the vicinity of the scene when he made another threatening call, and that a fire was deliberately set was sufficient evidence that defendant was the perpetrator. State v. Curmon, 171 N.C. App. 697, 615 S.E.2d 417, 2005 N.C. App. LEXIS 1362 (2005).

Evidence Sufficient to Go to Jury. —

Where the defendant set fire to his own apartment, but there were three other occupied apartments in the building, the evidence was sufficient to go to the jury on the charge of common-law arson. State v. Jones, 296 N.C. 75 , 248 S.E.2d 858, 1978 N.C. LEXIS 1161 (1978).

In a prosecution for first degree arson, the evidence permitted the jury to find that a victim of gunshot wounds was alive when the fire was set but died before he inhaled any fumes or soot; the fact that a pathologist found no sooty material in the victim’s airway was not conclusive proof that the victim died before the fire was set. State v. Eason, 328 N.C. 409 , 402 S.E.2d 809, 1991 N.C. LEXIS 246 (1991).

Voluntary intoxication is not a defense to a charge of arson. State v. White, 291 N.C. 118 , 229 S.E.2d 152, 1976 N.C. LEXIS 938 (1976).

Instructions. —

In a prosecution of defendant for burning an apartment, it was immaterial which person occupied which apartment in view of the court’s ruling that Building 9 of the apartments, with all its individual apartments, constituted a single dwelling house, and defendant therefore was not prejudiced by the trial court’s instructions which placed people in the wrong apartment. State v. Wyatt, 48 N.C. App. 709, 269 S.E.2d 717, 1980 N.C. App. LEXIS 3316 (1980).

A trial court is not obligated ex mero motu to make a distinction between a partial burning or slight charring of some portion of the building and a mere scorching or discoloration thereof, not constituting arson, for the jury, where no serious question concerning the nature of the damage caused by the fire is ever raised during trial. State v. Oxendine, 305 N.C. 126 , 286 S.E.2d 546, 1982 N.C. LEXIS 1246 (1982).

For discussion of victim’s age as aggravation of arson conviction, see State v. Allen, 322 N.C. 176 , 367 S.E.2d 626, 1988 N.C. LEXIS 295 (1988).

Curtilage. —

Defendant, who allegedly set fire to a garage about 30 feet from an inhabited house, was properly charged with first-degree arson under G.S. 14-58 and not with burning an outbuilding under G.S. 14-62 because the garage was located within the curtilage of an inhabited house; although tension existed between caselaw applying G.S. 14-62 to outbuildings within the curtilage of dwelling houses and the common-law definition of arson, the appellate court was bound by precedent to find that defendant’s motion to dismiss the arson charge was properly denied. State v. Nipper, 177 N.C. App. 794, 629 S.E.2d 883, 2006 N.C. App. LEXIS 1181 (2006).

§ 14-58.1. Definition of “house” and “building.”

As used in this Article, the terms “house” and “building” shall be defined to include mobile and manufactured-type housing and recreational trailers.

History. 1973, c. 1374.

CASE NOTES

Legislative Intent. —

The intent of the Legislature in enacting this section and G.S. 14-58 .2 was to extend protection against wilful and malicious burning to mobile and manufactured housing, it did not intend to remove that protection when, in 1979, it amended G.S. 14-58 and 14-58.2 to classify the crime of arson in separate degrees for sentencing purposes. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

Mobile Homes and Manufactured Housing. —

It is certainly common knowledge that many of our citizens inhabit mobile homes and manufactured housing and we hold the words “dwelling” and “dwelling house” apply to those structures as surely as those made of lumber and brick. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

Unoccupied Mobile Home. —

The malicious and willful burning of a mobile home which is used as a dwelling and which is unoccupied at the time of the burning constitutes second degree arson. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

§ 14-58.2. Burning of mobile home, manufactured-type house or recreational trailer home.

If any person shall willfully and maliciously burn any mobile home or manufactured-type house or recreational trailer home which is the dwelling house of another and which is occupied at the time of the burning, the same shall constitute the crime of arson in the first degree.

History. 1973, c. 1374; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Legislative Intent. —

The intent of the Legislature in enacting G.S. 14-58.1 and this section was to extend protection against wilful and malicious burning to mobile and manufactured housing, it did not intend to remove that protection when, in 1979, it amended G.S. 14-58 and this section to classify the crime of arson in separate degrees for sentencing purposes. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

Dwelling and Dwelling House. —

It is certainly common knowledge that many of our citizens inhabit mobile homes and manufactured housing and we hold the words “dwelling” and “dwelling house” apply to those structures as surely as those made of lumber and brick. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

Unoccupied Mobile Home. —

The malicious and willful burning of a mobile home which is used as a dwelling and which is unoccupied at the time of the burning constitutes second degree arson. State v. Hodge, 121 N.C. App. 209, 465 S.E.2d 14, 1995 N.C. App. LEXIS 1041 (1995).

Sufficiency of Evidence. —

Fact that vinyl siding on a mobile home melted as a result of a fire set by defendant was sufficient to constitute the “charring” necessary to find that the mobile home had burned and it supported defendant’s conviction under G.S. 14-58.2 . State v. Norris, 172 N.C. App. 722, 617 S.E.2d 298, 2005 N.C. App. LEXIS 1787 (2005), rev'd, 360 N.C. 507 , 630 S.E.2d 915, 2006 N.C. LEXIS 592 (2006).

Jury Instruction on Malice. —

Where the trial court’s jury instruction referred to both express and implied malice and was in accordance with the pattern jury instructions for arson and homicide, the trial court’s instruction was proper. State v. Sexton, 357 N.C. 235 , 581 S.E.2d 57, 2003 N.C. LEXIS 608 (2003).

§ 14-59. Burning of certain public buildings.

If any person shall wantonly and willfully set fire to or burn or cause to be burned or aid, counsel or procure the burning of, the State Capitol, the Legislative Building, the Justice Building or any building owned or occupied by the State or any of its agencies, institutions or subdivisions or by any county, incorporated city or town or other governmental or quasi-governmental entity, he shall be punished as a Class F felon.

History. 1830, c. 41, s. 1; R.C., c. 34, s. 7; 1868-9, c. 167, s. 5; Code, s. 985, subsec. 3; Rev., s. 3344; C.S., s. 4239; 1965, c. 14; 1971, c. 816, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 115; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Intent Necessary. —

If the prisoner put fire to the jail, not with an intention of destroying it, he is not guilty under the act. But if he put fire to the jail and burnt it with an intent to burn it down and destroy it, he is guilty, notwithstanding the fire went out, or was put out by others before the intention of the prisoner was completed by burning down the jail; and this is the law, although his main intention was to escape. State v. Mitchell, 27 N.C. 350 , 1845 N.C. LEXIS 105 (1845).

Uninhabited Dwelling House. —

Uninhabited dwelling house which defendant was convicted of burning did not constitute a public building as defined by this section. State v. Smith, 74 N.C. App. 514, 328 S.E.2d 877, 1985 N.C. App. LEXIS 3534 (1985).

Where the indictment, the evidence, the jury instructions and the verdict were for burning an uninhabited dwelling house, which constitutes a violation of G.S. 14-67.1 , a Class H felony carrying a presumptive term of three years, judgment stating that the offense was in violation of this section, a Class E felony, and sentencing defendant to a nine year term, the presumptive term for violation of this section, would be vacated and the case remanded for entry of a proper judgment consistent with a conviction for violation of G.S. 14-67.1 . State v. Smith, 74 N.C. App. 514, 328 S.E.2d 877, 1985 N.C. App. LEXIS 3534 (1985).

Construction with Other Statutes. —

The burning of personal property in violation of G.S. 14-66 was not a lesser included offense of burning a public building in violation of this section. In re Davis, 114 N.C. App. 253, 441 S.E.2d 696, 1994 N.C. App. LEXIS 315 (1994).

§ 14-60. Burning of schoolhouses or buildings of educational institutions.

If any person shall wantonly and willfully set fire to or burn or cause to be burned or aid, counsel or procure the burning of, any schoolhouse or building owned, leased or used by any public or private school, college or educational institution, he shall be punished as a Class F felon.

History. 1901, c. 4, s. 28; Rev., s. 3345; 1919, c. 70; C.S., s. 4240; 1965, c. 870; 1971, c. 816, s. 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1158; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-61. Burning of certain bridges and buildings.

If any person shall wantonly and willfully set fire to or burn or cause to be burned, or aid, counsel or procure the burning of, any public bridge, or private toll bridge, or the bridge of any incorporated company, or any fire-engine house or rescue-squad building, or any house belonging to an incorporated company or unincorporated association and used in the business of such company or association, he shall be punished as a Class F felon.

History. 1825, c. 1278, P.R; R.C., c. 34, s. 30; Code, s. 985, subsec. 4; Rev., s. 3337; C.S., s. 4241; 1971, c. 816, s. 3; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1159; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

City Market House. —

A person charged with damaging a market house by fire must be tried under this section and not under a municipal ordinance as the general law must prevail over the ordinance, when they conflict. The municipal court would have jurisdiction only by express legislation conveying it. Washington v. Hammond, 76 N.C. 33 , 1877 N.C. LEXIS 156 (1877).

§ 14-62. Burning of certain buildings.

If any person shall wantonly and willfully set fire to or burn or cause to be burned, or aid, counsel or procure the burning of, any uninhabited house, or any stable, coach house, outhouse, warehouse, office, shop, mill, barn or granary, or any building, structure or erection used or intended to be used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, he shall be punished as a Class F felon.

History. 1874-5, c. 228; Code, s. 985, subsec. 6; 1885, c. 66; 1903, c. 665, s. 2; Rev., s. 3338; C.S., s. 4242; 1927, c. 11, s. 1; 1953, c. 815; 1959, c. 1298, s. 1; 1971, c. 816, s. 4; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1160; 1994, Ex. Sess., c. 24, s. 14(c); 1995 (Reg. Sess., 1996), c. 751, s. 2.

Cross References.

As to burning of ginhouses and tobacco houses, see G.S. 14-64 .

As to setting fire to grass and brushlands and woodlands, see G.S. 14-136 .

As to burning crops in fields, see G.S. 14-141 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For comment on the 1953 amendment, see 31 N.C.L. Rev. 403 (1953).

CASE NOTES

Analysis

I.General Consideration

Constitutionality. —

This section is not unconstitutional as violative of U.S. Const., Amend. XIV. State v. Stewart, 4 N.C. App. 249, 166 S.E.2d 458, 1969 N.C. App. LEXIS 1476 (1969).

The imposition of a sentence of 12 years in prison for violation of this section is not cruel and unusual punishment under U.S. Const., Amends. VII and XIV. State v. Stewart, 4 N.C. App. 249, 166 S.E.2d 458, 1969 N.C. App. LEXIS 1476 (1969).

This section clearly and specifically defines the prohibited conduct and sets out the possible punishment. State v. Stewart, 4 N.C. App. 249, 166 S.E.2d 458, 1969 N.C. App. LEXIS 1476 (1969).

This section cannot be extended to cover structures not intended by the legislature. State v. Cuthrell, 235 N.C. 173 , 69 S.E.2d 233, 1952 N.C. LEXIS 366 (1952).

Crime Fixed Herein Is Separate from That in G.S. 14-66 . —

A verdict of not guilty on a count brought under this section does not necessarily carry a verdict of not guilty on a second count brought under G.S. 14-66 , the counts being separate and distinct and each requiring proof of facts which the other does not. State v. Pierce, 208 N.C. 47 , 179 S.E. 8, 1935 N.C. LEXIS 310 (1935).

“Trade”. —

The word “trade” as used in this section means more than traffic in goods, and the like. It is used in its broader sense, and as such is synonymous with “occupation” or “calling.” Thus the word “trade” as here used embraces any ordinary occupation or business, whether manual or mercantile. State v. Cuthrell, 235 N.C. 173 , 69 S.E.2d 233, 1952 N.C. LEXIS 366 (1952).

Prosecution for Procuring Burning Charges Complicity. —

When an individual is prosecuted for procuring felonious burning under this section he is being charged with complicity in the burning and not with mere solicitation. State v. Sargent, 22 N.C. App. 148, 205 S.E.2d 768, 1974 N.C. App. LEXIS 2262 (1974).

Inquiry into Defendant’s Character Desirable. —

Inquiry into such matters as the age, the character, the education, the environment, the habits, the mentality, the propensities, and the record of the person about to be sentenced is a procedure particularly desirable in respect to this section, which covers the wanton and willful burning of a wide variety of structures. State v. Stewart, 4 N.C. App. 249, 166 S.E.2d 458, 1969 N.C. App. LEXIS 1476 (1969).

Search by Firemen Without Warrant Reasonable While Present at Fire. —

While firemen are present at a fire and engaged in any continuing activity to bring under control or extinguish a fire, or prevent reignition, a search for the possible presence of accelerants on the premises may reasonably be conducted without a search warrant and without regard to how or why any accelerants may have been placed or stored on the premises. The fruits of such a search are admissible in evidence against any person charged with an unlawful burning of or upon the premises. State v. Langley, 64 N.C. App. 674, 308 S.E.2d 445, 1983 N.C. App. LEXIS 3350 (1983).

II.Elements of Offense

In General. —

Defendant’s plea of not guilty in a prosecution under this section places the burden upon the State to prove: (1) the fire, (2) that it was of incendiary origin, and (3) that defendant was connected with the crime. State v. Sheetz, 46 N.C. App. 641, 265 S.E.2d 914, 1980 N.C. App. LEXIS 2923 (1980).

Where a plea of not guilty is entered in a prosecution for common-law arson or for the statutory felony of burning a building contrary to this section it is incumbent on the State to prove both the fire and cause of the fire and the connection of the accused with the crime. State v. Cuthrell, 233 N.C. 274 , 63 S.E.2d 549, 1951 N.C. LEXIS 574 (1951).

Burning of Uninhabited Dwelling. —

The essential elements of the crime of feloniously burning an uninhabited dwelling house are: (i) the house was uninhabited, (ii) a fire occurred in it, (iii) the fire was of incendiary origin, and (iv) the defendant unlawfully and willfully started it. State v. Smith, 74 N.C. App. 514, 328 S.E.2d 877, 1985 N.C. App. LEXIS 3534 (1985).

Not Lesser Included Offense of Arson. —

Burning an uninhabited house was not a lesser included offense of arson; thus, the defendant could not be convicted of burning an uninhabited house where he was indicted for arson, and the proof showed that the house was inhabited by the murder victim at the time of the murder and fire. State v. Britt, 132 N.C. App. 173, 510 S.E.2d 683, 1999 N.C. App. LEXIS 82 (1999).

Nature and Use of Structure. —

Under an indictment charging that the defendant willfully and feloniously procured the burning of a certain building used in carrying on a trade, the burden rests on the State to prove that the defendant unlawfully procured the burning of (1) a structure that answered to the description of a “building” within the meaning of this section, and also (2) that the structure was “used in carrying on a trade,” within the purview of the section. Findings by the jury concerning these two elements of the statutory offense charged are quite as essential to a conviction as proof of the fact of procuring the burning of the structure. State v. Cuthrell, 235 N.C. 173 , 69 S.E.2d 233, 1952 N.C. LEXIS 366 (1952).

State Must Prove That Building Was in Fact Burned. —

To establish guilt in procuring arson, it is necessary for the State to prove not only that defendant instructed someone to burn the building, but also that the building was in fact burned. State v. Sargent, 22 N.C. App. 148, 205 S.E.2d 768, 1974 N.C. App. LEXIS 2262 (1974).

Proof of Title. —

Ownership is alleged only to identify the property, and is sufficiently proved by showing occupancy. State v. Gailor, 71 N.C. 88 , 1874 N.C. LEXIS 20 (1874); State v. Jaynes, 78 N.C. 504 , 1878 N.C. LEXIS 266 (1878); State v. Thompson, 97 N.C. 496 , 1 S.E. 921, 1887 N.C. LEXIS 20 2 (1887); State v. Daniel, 121 N.C. 574 , 28 S.E. 255, 1897 N.C. LEXIS 282 (1897); State v. Sprouse, 150 N.C. 860 , 64 S.E. 900, 1909 N.C. LEXIS 172 (1909).

This section was copied from the English Statute of 7 and 8 Geo. IV., c. 30; and under that it was sufficient to allege the building simply “of ” A. (Archb. Cr. Pl. [3d Am. Ed.] 262, and lxiv.); and this is the better practice, proof of either possession or property being sufficient identification. State v. Daniel, 121 N.C. 574 , 28 S.E. 255, 1897 N.C. LEXIS 282 (1897).

Motive or Intent. —

It is not always necessary to show either a motive or an intent, for in some offenses the intent to do the forbidden act is the criminal intent, and the act committed with that intent constitutes the crime. If the person has done the act which in itself is a violation of the law, he will not be heard to say that he did not have the intent. State v. King, 86 N.C. 603 (1882); State v. Voight, 90 N.C. 741 (1884); State v. Smith, 93 N.C. 516 (1885); State v. McBrayer, 98 N.C. 619 , 2 S.E. 755 (1887); State v. McLean, 121 N.C. 589 , 28 S.E. 140, 42 L.R.A. 721 (1897). But this principle does not apply when the act is itself equivocal and becomes criminal only by reason of the intent. State v. Morgan, 136 N.C. 628 , 48 S.E. 670, 1904 N.C. LEXIS 316 (1904).

III.Willfulness and Wantonness

“Willfulness” and “Wantonness” Defined. —

“Willfulness” means the wrongful doing of an act without justification or excuse. “Wantonness” means the doing of an act in conscious and intentional disregard of an indifference to the rights and safety of others. State v. Oxendine, 64 N.C. App. 559, 307 S.E.2d 583, 1983 N.C. App. LEXIS 3316 (1983).

Attempt to draw a sharp line between a “wilful” act and a “wanton” act would be futile. The elements of each are substantially the same. State v. Oxendine, 64 N.C. App. 559, 307 S.E.2d 583, 1983 N.C. App. LEXIS 3316 (1983).

Requirement of Willfulness and Wantonness Satisfied. —

In a case involving the burning of a food market defendant’s use of a highly flammable and volatile substance such as kerosene coupled with the proximity of the other buildings placed the interests and safety of others in jeopardy. These facts meet the requirements of the (1982) test for “willful and wanton” under this section and the State adduced sufficient evidence to make out its case against defendant. State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607, 1988 N.C. App. LEXIS 632 (1988).

IV.Buildings

Farm Buildings. —

This section is intended to encompass, inter alia, all farm buildings that do not fall within the common law definition of arson. State v. Vickers, 306 N.C. 90 , 291 S.E.2d 599, 1982 N.C. LEXIS 1381 (1982).

Outhouse. —

Uninhabited storage house which the defendant burned fell within the statutory definition of “outhouse” even though it did not contain an outdoor toilet. State v. Woods, 109 N.C. App. 360, 427 S.E.2d 145, 1993 N.C. App. LEXIS 278 (1993).

Closing of a shopping center’s doors to the public after being damaged by a fire does not in and of itself take a business premises outside the operation of this section. It was proper to charge arson under this section for a fire occurring one week later, although all of the businesses in the shopping center remained closed after the first fire, where they nevertheless remained as businesses through the date of the second fire and the building in which they were located was “a building . . . used” in carrying on a business on the date of the second fire. State v. Langley, 64 N.C. App. 674, 308 S.E.2d 445, 1983 N.C. App. LEXIS 3350 (1983).

Garage. —

Defendant, who allegedly set fire to a garage about 30 feet from an inhabited house, was properly charged with first-degree arson under G.S. 14-58 and not with burning an outbuilding under G.S. 14-62 because the garage was located within the curtilage of an inhabited house; although tension existed between caselaw applying G.S. 14-62 to outbuildings within the curtilage of dwelling houses and the common-law definition of arson, the appellate court was bound by precedent to find that defendant’s motion to dismiss the arson charge was properly denied. State v. Nipper, 177 N.C. App. 794, 629 S.E.2d 883, 2006 N.C. App. LEXIS 1181 (2006).

V.Indictments

Indictment in Language of Section Insufficient. —

Where a bill of indictment merely charges the offense in the language of this section, it fails to meet the minimum requirements as to identity of the offense attempted to be charged and is fatally defective. State v. Banks, 247 N.C. 745 , 102 S.E.2d 245, 1958 N.C. LEXIS 315 (1958).

“Wantonly and Willfully” Must Be Charged. —

An indictment charged that the defendant “did unlawfully, willfully and feloniously set fire to and burn a certain ginhouse, belonging to B. and in the possession of one G.” Verdict of guilty and defendant moved in arrest of judgment for that this section had been amended (Laws 1885, c. 66) by striking out the words “unlawfully and maliciously” and “willfully,” and that the words used in the indictment are not synonymous with those required by the amended statute. The objection would be well taken if this indictment was sustainable only under this section. State v. Massey, 97 N.C. 465 , 2 S.E. 445 (1887); State v. Morgan, 98 N.C. 641 , 3 S.E. 927 (1887). But it is a valid indictment under G.S. 14-64 , as was held in State v. Thorne, 81 N.C. 555 , 1879 N.C. LEXIS 230 (1879) cited and followed by State v. Dollar, 292 N.C. 344 , 233 S.E.2d 521 (1977).

It seems to be the rule that “unlawfully and willfully” do not answer the requirements under this section but under G.S. 14-64 it is sufficient in the indictment. State v. Pierce, 123 N.C. 745 , 31 S.E. 847, 1898 N.C. LEXIS 134 (1898).

Allegation of Ownership Unnecessary. —

In the indictment it is not necessary to set out that the burned property “was the property of ” or “was in the possession of ” anyone. The constituent element is “willful and wanton.” State v. Daniel, 121 N.C. 574 , 28 S.E. 255, 1897 N.C. LEXIS 282 (1897).

Allegation of ownership or of possession suffices to meet requirements of identity under this section. State v. Banks, 247 N.C. 745 , 102 S.E.2d 245, 1958 N.C. LEXIS 315 (1958).

Charge of Particular Intent. —

It was formerly the rule that an indictment under this section for burning a barn must aver that the act was done “with intent thereby to injure or defraud” some person. And an indictment for such offense at common law had to charge that the barn contained hay or grain, or was a parcel of the dwelling house. State v. Porter, 90 N.C. 719 , 1884 N.C. LEXIS 316 (1884).

Same — Not Necessary. —

An indictment for burning a mill, under this section, need not allege that the prisoner set fire to the mill with the intent to injure some particular person. State v. Rogers, 94 N.C. 860 , 1886 N.C. LEXIS 155 (1886).

Indictment for Burning Tobacco Barn or Storage Building. —

Since a “tobacco house” does not have a generally accepted connotation or definition, an indictment under this section for burning a tobacco barn or a tobacco storage building is proper; hence, defendant’s contention that he should have been charged under G.S. 14-64 was without merit. State v. Vickers, 306 N.C. 90 , 291 S.E.2d 599, 1982 N.C. LEXIS 1381 (1982).

Indictment Sufficient. —

Trial court had jurisdiction to try defendant for violating this section because the indictment charging him was not fatally defective due to its failure to include “wanton” as “willful” was essentially the same, and therefore the indictment charged the essential elements of the offense. State v. Hunt, 250 N.C. App. 238, 792 S.E.2d 552, 2016 N.C. App. LEXIS 1107 (2016).

VI.Evidence

Threats. —

The proof of threats directed against the son and grandson, from their near relationship to the owner of a burned house, was relevant, though perhaps feeble, in showing general ill will to the family and a motive for the act. State v. Rash, 34 N.C. 382 , 1851 N.C. LEXIS 96 (1851); State v. Gailor, 71 N.C. 88 , 1874 N.C. LEXIS 20 (1874); State v. Green, 92 N.C. 779 , 1885 N.C. LEXIS 290 (1885); State v. Thompson, 97 N.C. 496 , 1 S.E. 921, 1887 N.C. LEXIS 20 2 (1887).

Bad Feeling. —

It was entirely competent for the State to show motive upon the part of the defendant to burn a barn occupied and used by the witness, and to that end it was proper to show that bad feeling existed, and the reasons for it, but that part of a reply of a witness in which he stated that defendant had been convicted of stealing and sent to the chain gang should have been excluded and the jury carefully cautioned not to regard it as it put the character of the defendant in issue. State v. Barrett, 151 N.C. 665 , 65 S.E. 894, 1909 N.C. LEXIS 341 (1909).

Ill will toward an agent of the owner of a building was not sufficient to show motive for setting fire to the building, as such evidence was too remote. State v. Battle, 126 N.C. 1036 , 35 S.E. 624, 1900 N.C. LEXIS 355 (1900).

Admissibility of Evidence of Bad Blood, Footprints, etc. —

Under an indictment for burning a barn, evidence of bad blood for the owner of the barn, footprints, failure of defendant to go to fire when the remainder of the neighborhood was there, the hour defendant arose, and his acts when notified of the fire was admissible and was sufficient to sustain a verdict of guilty. State v. Allen, 149 N.C. 458 , 62 S.E. 597, 1908 N.C. LEXIS 375 (1908).

Opinion Evidence as to Origin of Fire. —

In a prosecution under this section it was reversible error to admit opinion testimony that the fire was of incendiary origin since the facts constituting the basis for such conclusion were so simply and readily understood that it was for the jury to draw the conclusion from testimony as to the facts, and since the conclusion is not a proper subject of opinion testimony. State v. Cuthrell, 233 N.C. 274 , 63 S.E.2d 549, 1951 N.C. LEXIS 574 (1951).

An expert in arson investigation may properly give his opinion that a fire was of incendiary origin where his opinion is based on the expert’s own examination of the premises and based on a proper hypothetical question supported by the evidence. State v. Sheetz, 46 N.C. App. 641, 265 S.E.2d 914, 1980 N.C. App. LEXIS 2923 (1980).

Previous Fires. —

On trial under indictment under this section for burning a barn to collect fire insurance thereon, evidence that the defendant at another place, at some indefinite time in the past, had another barn burn was incompetent and did not come within the exceptions to the general rule, there being no causal relation between the two fires, or logical or natural connection between them, nor were they a part of the same transaction. State v. Deadmon, 195 N.C. 705 , 143 S.E. 514, 1928 N.C. LEXIS 190 (1928).

In a prosecution for procuring another to burn a building used for trade, evidence of unrelated previous fires, absent a showing that they had been deliberately set, that they were criminal in nature, and that charges were ever brought or convictions entered against either defendant or defendant’s wife for any of the previous burnings was prejudicial and reversible error. State v. Alley, 54 N.C. App. 647, 284 S.E.2d 215, 1981 N.C. App. LEXIS 2906 (1981).

Evidence of prior noncriminal unrelated fire held inadmissible because of its prejudicial character since such evidence was irrelevant in that it neither confirmed nor suggested a relationship between two defendants charged with burning down a food market. Moreover, the State failed to show defendants had any connection with the previous fire. State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607, 1988 N.C. App. LEXIS 632 (1988).

Subsequent Attempt to Fire Another Building. —

Where the defendant was indicted for setting fire to an outhouse, evidence was competent to show that at the same time an attempt was made to fire a dwelling house near it, the evidence directly connecting the defendant with the latter attempt. State v. Thompson, 97 N.C. 496 , 1 S.E. 921, 1887 N.C. LEXIS 202 (1887).

Effect of Evidence That Dwelling Was Inhabited. —

Defendant who was charged with the unlawful burning of an uninhabited dwelling pursuant to this section was entitled to have his motion for nonsuit granted, since the evidence tended to show that the mobile home burned was used by three people as their place of residence. Their temporary absence at the time of the fire did not make the dwelling an uninhabited house within the meaning of this section. State v. Gulley, 46 N.C. App. 822, 266 S.E.2d 8, 1980 N.C. App. LEXIS 2930 (1980).

Evidence Held Sufficient. —

Evidence that defendant’s sister and her husband had an interest in house located primarily on land owned by defendant and her husband but partly on the property of her sister and her husband, that the Bank of North Carolina had an interest in the house because it had been pledged as security for a loan, and that defendant was aware of these interests, but nevertheless proceeded to procure the burning because of problems which had arisen in connection with the interest of her sister and her sister’s husband in the house, was sufficient to permit the jury to find that defendant conspired to burn and procured the burning of the house in conscious and intentional disregard of and indifference to the right of her sister, her sister’s husband and the bank, and thus that she did so wantonly. State v. White, 74 N.C. App. 504, 328 S.E.2d 902, 1985 N.C. App. LEXIS 3524 (1985).

Evidence held sufficient to sustain conviction of burning a horse barn, in violation of this section, and of burning personal property, in violation of G.S. 14-66 . State v. Graves, 83 N.C. App. 126, 349 S.E.2d 320, 1986 N.C. App. LEXIS 2664 (1986).

There was substantial circumstantial evidence for the jury to have found defendant guilty of violating this section where the defendant was the only person seen in close proximity to the fire after it started and he also failed to warn nearby residents, lied about his identity, and attempted to flee the scene in a stolen car. State v. Woods, 109 N.C. App. 360, 427 S.E.2d 145, 1993 N.C. App. LEXIS 278 (1993).

Circumstantial Evidence Held Sufficient. —

While the evidence was entirely circumstantial, it was held to be sufficiently substantial to connect defendant with the burning of the store when it tended to show the following: Defendant had been handling and had access to kerosene the day of the fire; the fire was believed to have been ignited by a petroleum product and he was one of the last persons in the store before the fire; he closed the store much earlier than usual; unlike all other times defendant had closed, he failed to lock the front door which activated the alarm system; he hurriedly left the store after closing; smoke was seen seeping out under the soda machine just as defendant was leaving; and the fire was deliberately set. State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607, 1988 N.C. App. LEXIS 632 (1988).

Evidence Held Insufficient. —

The evidence against the defendant on a charge of malicious burning of a dwelling house was held insufficient to survive a motion to dismiss. State v. Blizzard, 280 N.C. 11 , 184 S.E.2d 851, 1971 N.C. LEXIS 1086 (1971).

Evidence that defendant had known co-defendant for 29 years, that defendant worked for co-defendant and that she was seen with him exiting the store just before the fire was insufficient evidence to connect her with the perpetration of the fire. State v. Clark, 90 N.C. App. 489, 369 S.E.2d 607, 1988 N.C. App. LEXIS 632 (1988).

VII.Questions For Jury

Must Be Sufficient Evidence. —

The general rule is, if there be any evidence tending to prove the fact in issue the weight of it must be left to the jury, but if there be no evidence conducing to that conclusion the judge should say so, and, in a criminal case, direct an acquittal. In State v. Vinson, 63 N.C. 335 (1869), it was said: “But it is confessedly difficult to draw the line between evidence which is very slight, and that which, as having no bearing on the fact to be proved, is in relation to that fact no evidence at all.” The evidence must be more than sufficient to raise a suspicion or a conjecture. State v. Rhodes, 111 N.C. 647 , 15 S.E. 1038, 1892 N.C. LEXIS 232 (1892).

Nature and Use of Structure. —

It is for the jury to find and declare by their verdict, among other things, (1) whether the structure alleged to have been burned had arrived at such a stage of completion as to be usable for some useful purpose so as to make it a building within the meaning of the statute, and, if so, (2) whether it had been put to use in the occupation or business of the lessee prior to the fire. The action of the trial court in assuming the existence of these disputed facts was prejudicial error. State v. Cuthrell, 235 N.C. 173 , 69 S.E.2d 233, 1952 N.C. LEXIS 366 (1952).

Intent. —

It is prima facie presumed that a person intended the natural consequence of his act when he set fire to a building. But this is subject to rebuttal by evidence to the contrary and then “intent” becomes a question for the jury. State v. Phifer, 90 N.C. 721 , 1884 N.C. LEXIS 317 (1884).

Alibi. —

The burden of proving an alibi does not rest on the prisoner, but the burden of proving the guilt of the prisoner rests on the State. It is for the jury to decide, and it is only necessary for the prisoner to offer enough evidence to produce in the mind of the jury a reasonable doubt. State v. Jaynes, 78 N.C. 504 , 1878 N.C. LEXIS 266 (1878).

Evidence Sufficient to Submit to Jury. —

On the trial of defendant of burning a barn, the tracing by the bloodhounds some two hours later of a track leading from the rear of the barn to defendant’s residence, together with the identification of the track as that of defendant by one of his shoes, with evidence of motive, was sufficient evidence of guilt to take the case to the jury. State v. Thompson, 192 N.C. 704 , 135 S.E. 775, 1926 N.C. LEXIS 387 (1926).

On trial for willfully and wantonly burning a barn in violation of this section, evidence of the felonious origin of the fire and of the identity of the defendant as the culprit was sufficient to be submitted to the jury that defendant had committed the crime, the corpus delicti being reasonably inferable from the circumstances, there being evidence that a fresh boot track found at the scene of the crime was made by defendant’s boot, and that defendant failed to answer charges of his brother, made in presence of officers, under circumstances calling for a reply. State v. Wilson, 205 N.C. 376 , 171 S.E. 338, 1933 N.C. LEXIS 563 (1933).

For circumstantial evidence sufficient for jury, see State v. Moore, 262 N.C. 431 , 137 S.E.2d 812, 1964 N.C. LEXIS 660 (1964).

Evidence Insufficient to Submit to Jury. —

Where the only evidence against a person accused of burning a barn was threats made by him, without any evidence connecting him with the execution of said threats, or with the offense charged, the trial judge should have withdrawn the case from the jury. State v. Freeman, 131 N.C. 725 , 42 S.E. 575, 1902 N.C. LEXIS 351 (1902).

Where, in a prosecution under this section, the evidence fails to establish the felonious origin of the fire or the identity of the defendant as the one who committed the offense charged, or circumstances from which these facts might reasonably be inferred, it is insufficient to be submitted to the jury. State v. Church, 202 N.C. 692 , 163 S.E. 874, 1932 N.C. LEXIS 190 (1932).

VIII.Instructions

Duty of Trial Court to Define and Explain Words. —

The duty rests upon the trial court to define and explain to the jury the meaning of (1) “building” and (2) “used in carrying on any trade” as used in this section. State v. Cuthrell, 235 N.C. 173 , 69 S.E.2d 233, 1952 N.C. LEXIS 366 (1952).

§ 14-62.1. Burning of building or structure in process of construction.

If any person shall wantonly and willfully set fire to or burn or cause to be burned, or aid, counsel or procure the burning of, any building or structure in the process of construction for use or intended to be used as a dwelling house or in carrying on any trade or manufacture, or otherwise, whether the same or any of them respectively shall then be in the possession of the offender, or in the possession of any other person, he shall be punished as a Class H felon.

History. 1957, c. 792; 1971, c. 816, s. 5; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1161; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-62.2. Burning of churches and certain other religious buildings.

If any person shall wantonly and willfully set fire to or burn or cause to be burned, or aid, counsel or procure the burning of any church, chapel, or meetinghouse, the person shall be punished as a Class E felon.

History. 1995 (Reg. Sess., 1996), c. 751, s. 3.

§ 14-63. Burning of boats and barges.

If any person shall wantonly and willfully set fire to or burn or cause to be burned or aid, counsel or procure the burning of, any boat, barge, ferry or float, without the consent of the owner thereof, he shall be punished as a Class H felon. In the event the consent of the owner is given for an unlawful or fraudulent purpose, however, the penalty provisions of this section shall remain in full force and effect.

History. 1909, c. 854; C.S., s. 4243; 1971, c. 816, s. 6; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-64. Burning of ginhouses and tobacco houses.

If any person shall wantonly and willfully set fire to or burn or cause to be burned, or aid, counsel or procure the burning of, any ginhouse or tobacco house, or any part thereof, he shall be punished as a Class H felon.

History. 1863, c. 17; 1868-9, c. 167, s. 5; Code, s. 985, subsec. 2; 1903, c. 665, s. 1; Rev., s. 3341; C.S., s. 4244; 1971, c. 816, s. 7; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

As to setting fire to churches and certain other buildings, see G.S. 14-62.2 .

As to setting fire to grass and brushlands and woodlands, see G.S. 14-136 and 14-137.

As to burning crops in the field, see G.S. 14-141 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For comment, “It’s Time to Let Go: Why the Atmospheric Trust Won’t Help the World Breathe Easier,” see 92 N.C. L. Rev. 236 (2013).

CASE NOTES

Indictment in General. —

That any informality will not be grounds for quashing proceeding if the charge is set out in a clear manner and enough matter appears to enable the court to proceed to judgment, see G.S. 15-153 . That judgments will not be vitiated for failure to aver certain unnecessary matter, see G.S. 15-155 . State v. Rogers, 168 N.C. 112 , 83 S.E. 161, 1914 N.C. LEXIS 23 (1914).

Indictment Under G.S. 14-62 for Burning Tobacco Barn. —

Since a “tobacco house” does not have a generally accepted connotation or definition, an indictment under G.S. 14-62 for burning a tobacco barn or a tobacco storage building is proper; hence, defendant’s contention that he should have been charged under this section was without merit. State v. Vickers, 306 N.C. 90 , 291 S.E.2d 599, 1982 N.C. LEXIS 1381 (1982).

Necessity of Alleging “Willful Burning”. —

In the case of State v. Thorne, 81 N.C. 555 (1879), there was an indictment for unlawfully, maliciously and feloniously burning a ginhouse. The court was asked to charge the jury that the defendant could not be convicted under the act of 1869, because the burning was not charged to have been willfully done. The court held that the word maliciously was more comprehensive and included willfully. State v. Green, 92 N.C. 779 , 1885 N.C. LEXIS 290 (1885).

Necessity of Showing Motive. —

It is never indispensable to a conviction that a motive for the commission of the crime should appear. But when the State has to rely upon circumstantial evidence to establish the guilt of the defendant, it is not only competent, but often very important, in strengthening the evidence for the prosecution, to show a motive for committing the crime. State v. Green, 92 N.C. 779 , 1885 N.C. LEXIS 290 (1885).

§ 14-65. Fraudulently setting fire to dwelling houses.

If any person, being the occupant of any building used as a dwelling house, whether such person be the owner thereof or not, or, being the owner of any building designed or intended as a dwelling house, shall wantonly and willfully or for a fraudulent purpose set fire to or burn or cause to be burned, or aid, counsel or procure the burning of such building, he shall be punished as a Class H felon.

History. Code, s. 985; 1903, c. 665, s. 3; Rev., s. 3340; 1909, c. 862; C.S., s. 4245; 1927, c. 11, s. 2; 1971, c. 816, s. 8; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For an article discussing “reverse bad faith,” the concept of allowing an insurer to assert a counterclaim for affirmative relief against an insured who brings a frivolous, bad faith action, see 19 Campbell L. Rev. 43 (1996).

CASE NOTES

The main import of this section is protection of the property itself, whereas the gravamen of the offense of common-law arson is the danger that results to persons who are or might be in the dwelling. State v. White, 288 N.C. 44 , 215 S.E.2d 557, 1975 N.C. LEXIS 880 (1975).

Essential Element of Crime. —

Burning or procuring to be burned the dwelling house occupied by defendant to constitute a criminal offense must have been done willfully and wantonly, or for a fraudulent purpose. To convict the defendant something more must be found than the fact that the house was burned, and that it was done at the instance and request of the defendant. By the terms of this section an essential element of the crime charged was that it be done willfully and wantonly or for a fraudulent purpose. State v. Cash, 234 N.C. 292 , 67 S.E.2d 50, 1951 N.C. LEXIS 449 (1951).

For a burning of a dwelling to be criminal under this section as a willful and wanton burning, it must be shown to have been done intentionally, without legal excuse or justification, and with the knowledge that the act will endanger the rights or safety of others or with reasonable grounds to believe that the rights or safety of others may be endangered. State v. Brackett, 306 N.C. 138 , 291 S.E.2d 660, 1982 N.C. LEXIS 1370 (1982).

Where the indictment upon which defendant was tried charged her with wanton and willful burning and not with burning for a fraudulent purpose, in order to prove that defendant’s conduct violated this section the State was required to prove (1) that she was the owner or occupier (2) of a dwelling house (3) that she burned or set on fire (4) wantonly and willfully. State v. Brackett, 306 N.C. 138 , 291 S.E.2d 660, 1982 N.C. LEXIS 1370 (1982).

The essential elements of the crime of fraudulently setting fire to dwelling houses are (1) that the accused was the owner or occupier (2) of a building used as a dwelling house (3) which he set fire to or burned or caused to be burned (4) for a fraudulent purpose. State v. James, 77 N.C. App. 219, 334 S.E.2d 452, 1985 N.C. App. LEXIS 4041 (1985).

Public Interest Does Not Make Burning Wanton. —

The public’s interest in not having the building destroyed is not the sort of right which would make defendant’s conduct in setting fire to his dwelling wanton. State v. Brackett, 306 N.C. 138 , 291 S.E.2d 660, 1982 N.C. LEXIS 1370 (1982).

Nor Does Burning so as to Collect Insurance. —

Intent to set fire to home for the purpose of collecting insurance proceeds worth more than home is not wanton. State v. Brackett, 306 N.C. 138 , 291 S.E.2d 660, 1982 N.C. LEXIS 1370 (1982).

Burning a dwelling for the purpose of frightening the occupant and keeping him from testifying for the State would clearly be a willful and malicious burning, but it would not be a burning “for a fraudulent purpose.” State v. White, 288 N.C. 44 , 215 S.E.2d 557, 1975 N.C. LEXIS 880 (1975).

Indictment Need Not Specify Particular Fraudulent Purpose. —

Where in a prosecution under this section the indictment charges that the defendant burned his dwelling house for the fraudulent purpose of obtaining insurance money thereon, and the court charges the jury that if they should find beyond a reasonable doubt that the defendant did the act charged for a fraudulent purpose, it was not necessary for the bill of indictment to specify any particular fraudulent purpose, and the unnecessary allegation in the bill is not, necessarily, fatal. State v. Morrison, 202 N.C. 60 , 161 S.E. 725, 1932 N.C. LEXIS 426 (1932).

Indictment which charges in one count that accused burned and/or procured to be burned the building in question is not improper. Hicks v. Reese, 624 F. Supp. 1116, 1986 U.S. Dist. LEXIS 30714 (W.D.N.C. 1986).

State Not Required to Elect Theory of Crime. —

Petitioner’s rights were not violated by trial court’s failure in arson trial to require the State to elect its theory of the crime, that is, whether petitioner burned the dwelling or procured another to do so. Both the indictment and the instructions were consistent with the statute in that petitioner could be found guilty if the jury found beyond a reasonable doubt that he caused his dwelling house to be burned, whether he set the fire himself or procured another to do so. Hicks v. Reese, 624 F. Supp. 1116, 1986 U.S. Dist. LEXIS 30714 (W.D.N.C. 1986).

Evidence of Solicitation Not Improper. —

In arson trial, petitioner’s rights were not violated by the trial court’s admitting into evidence testimony that petitioner had solicited a named individual to burn his dwelling house, as the admission of such testimony was relevant toward petitioner’s intent and motive for the offense charged. Hicks v. Reese, 624 F. Supp. 1116, 1986 U.S. Dist. LEXIS 30714 (W.D.N.C. 1986).

Sufficiency of Evidence. —

Evidence that fire in defendant’s house started in a closet in which was hanging a quilt soaked in kerosene, that kindling wood was on the floor of the closet, that the closet had no ceiling, but opened at the top into the attic, that defendant was being pressed to pay installments on the mortgage on the house, and was threatened with foreclosure, with other incriminating circumstantial evidence, establishes a motive and an opportunity for the defendant to commit the crime, and that the fire was of incendiary origin, and is sufficient to be submitted to the jury in a prosecution under this section. State v. Moses, 207 N.C. 139 , 176 S.E. 267, 1934 N.C. LEXIS 400 (1934).

Evidence showing that a week before fire petitioner solicited another to burn his house for $2,000.00, that he was within a mile to a mile and a quarter from his house at the time of the fire, that the fire was started with gasoline, and that petitioner had quit his job three days before the fire and on the date of the fire had unsuccessfully tried to sell his house was sufficient to support a conviction under this section. Hicks v. Reese, 624 F. Supp. 1116, 1986 U.S. Dist. LEXIS 30714 (W.D.N.C. 1986).

Evidence that defendant was delinquent in his mortgage payments and that the proceeds from his homeowner’s insurance policy would have been sufficient to cover his mortgage debt, along with evidence contradicting his accounts of his whereabouts the day of the fire, and evidence that there had been no forcible entry to the house, that the fire was intentionally started inside the house, that items had been cleared from defendant’s yard immediately preceding the fire, and that items defendant claimed were lost in the fire being found in his new house were sufficient to sustain a charge of fraudulently burning a dwelling. State v. Payne, 149 N.C. App. 421, 561 S.E.2d 507, 2002 N.C. App. LEXIS 218 (2002).

Expert opinion of a fire investigator that the fire to defendant’s house trailer, which occurred after the disappearance of the murdered victim, was intentionally set through the use of an accelerant and not accidentally caused by a grease fire as defendant claimed was sufficient to establish that defendant set the fire with the fraudulent purpose to destroy possible evidence regarding the murder of the victim. State v. Lassiter, 160 N.C. App. 443, 586 S.E.2d 488, 2003 N.C. App. LEXIS 1828 (2003).

When Evidence of Willfulness and Wantonness Insufficient. —

Viewed in the light most favorable to the State, there was no substantial evidence of willfulness and wantonness where there was no evidence that defendant set fire to her dwelling house with reckless disregard of the rights or safety of others, where her house was located on a large lot and the fire did not endanger other homes, defendant herself reported the fire, and she was alone at her home when the fire started. State v. Brackett, 306 N.C. 138 , 291 S.E.2d 660, 1982 N.C. LEXIS 1370 (1982).

Aggravation of Sentence. —

Fact that fraudulently burning a dwelling involved property of great monetary value was not an element of the offense, so it could be used to aggravate defendant’s sentence. State v. Payne, 149 N.C. App. 421, 561 S.E.2d 507, 2002 N.C. App. LEXIS 218 (2002).

§ 14-66. Burning of personal property.

If any person shall wantonly and willfully set fire to or burn, or cause to be burned, or aid, counsel or procure the burning of, any goods, wares, merchandise or other chattels or personal property of any kind, whether or not the same shall at the time be insured by any person or corporation against loss or damage by fire, with intent to injure or prejudice the insurer, the creditor or the person owning the property, or any other person, whether the property is that of such person or another, he shall be punished as a Class H felon.

History. 1921, c. 119; C.S., s. 4245(a); 1971, c. 816, s. 9; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For an article discussing “reverse bad faith,” the concept of allowing an insurer to assert a counterclaim for affirmative relief against an insured who brings a frivolous, bad faith action, see 19 Campbell L. Rev. 43 (1996).

CASE NOTES

Crime Fixed Herein Is Separate from That in G.S. 14-62 . —

A verdict of not guilty on a count brought under G.S. 14-62 does not necessarily carry a verdict of not guilty on a second count brought under this section, the counts being separate and distinct and each requiring proof of facts which the other does not. State v. Pierce, 208 N.C. 47 , 179 S.E. 8, 1935 N.C. LEXIS 310 (1935).

Intent to Injure or Prejudice Owner. —

A violation of this section requires, in addition to the willful and wanton burning of personal property, that the defendant have the specific intent to injure or prejudice the owner of the property. State v. Murchinson, 39 N.C. App. 163, 249 S.E.2d 871, 1978 N.C. App. LEXIS 2351 (1978).

The legislature chose to add the element of intent to injure or prejudice and, until this section is amended, the State must prove beyond a reasonable doubt such intent. State v. Murchinson, 39 N.C. App. 163, 249 S.E.2d 871, 1978 N.C. App. LEXIS 2351 (1978).

The holding in State v. Murchinson, 39 N.C. App. 163, 249 S.E.2d 871 (1978), that an intent to injure or prejudice the owner of the burned property must be shown by evidence other than the act of burning itself, is overruled. State v. Wesson, 45 N.C. App. 510, 263 S.E.2d 298, 1980 N.C. App. LEXIS 2661 (1980).

In a prosecution for the unlawful burning of personal property, a stolen automobile, in violation of this section, the jury could properly find an intent to injure or prejudice the owner or some other person by the burning from the nature of the act — the willful burning of an automobile stolen from a stranger, evidence that defendant poured paint thinner over the interior of the car and set it on fire, and defendant’s alleged statement that the automobile should be burned because it was nothing but trash. State v. Wesson, 45 N.C. App. 510, 263 S.E.2d 298, 1980 N.C. App. LEXIS 2661 (1980).

Intent to Injure or Prejudice May Be Inferred. —

The specific intent to injure or prejudice the owner of the property may be proven by circumstances from which it may be inferred, such as the nature of the act and the manner in which it was done. State v. Jordan, 59 N.C. App. 527, 296 S.E.2d 823, 1982 N.C. App. LEXIS 3151 (1982).

“Willful” means the wrongful doing of an act without justification or excuse, or purposely and deliberately in violation of the law. State v. Murchinson, 39 N.C. App. 163, 249 S.E.2d 871, 1978 N.C. App. LEXIS 2351 (1978).

Construction with Other Statutes. —

The burning of personal property in violation of this section was not a lesser included offense of burning a public building in violation of G.S. 14-59 . In re Davis, 114 N.C. App. 253, 441 S.E.2d 696, 1994 N.C. App. LEXIS 315 (1994).

Evidence Held Sufficient. —

Evidence held sufficient to sustain conviction of burning a horse barn, in violation of G.S. 14-62 , and of burning personal property, in violation of this section. State v. Graves, 83 N.C. App. 126, 349 S.E.2d 320, 1986 N.C. App. LEXIS 2664 (1986).

Evidence Held Insufficient. —

Evidence that defendant’s car was driven away from defendant’s house shortly before defendant’s personal property therein was destroyed by fire, and that the car had been driven to the house several times during the days preceding the fire, and that the occupants of the car were heard in the house, is held insufficient, in the absence of evidence that defendant was one of the occupants of the car, to resist defendant’s motions for judgment as of nonsuit in a prosecution under this section, although there was ample evidence that the fire was of incendiary origin and destroyed personal property of defendant which had been insured by him. State v. Simms, 208 N.C. 459 , 181 S.E. 269, 1935 N.C. LEXIS 52 (1935).

Defendant, a juvenile, was improperly adjudicated a delinquent because there was insufficient evidence to prove that defendant had committed the crime of burning personal property where the only admissible evidence was a witness’s observation of defendant at the scene of a fire. In re Rhyne, 154 N.C. App. 477, 571 S.E.2d 879, 2002 N.C. App. LEXIS 1454 (2002).

Search by Firemen Without Warrant Reasonable While Present at Fire. —

While firemen are present at a fire and engaged in any continuing activity to bring under or control or extinguish a fire, or prevent reignition, a search for the possible presence of accelerants on the premises may reasonably be conducted without a search warrant and without regard to how or why any accelerants may have been placed or stored on the premises. The fruits of such a search are admissible in evidence against any person charged with an unlawful burning of or upon the premises. State v. Langley, 64 N.C. App. 674, 308 S.E.2d 445, 1983 N.C. App. LEXIS 3350 (1983).

Instruction on Parole Ineligibility in Capital Case. —

Where a State prisoner, who was convicted of first-degree murder, first-degree rape, kidnapping, armed robbery, and the burning of personal property, in violation of G.S. 14-17 , 14-27.2(a)(2), 14-39, 14-87, and 14-66, argued that the sentencing court erred by failing to provide a parole ineligibility instruction, the prisoner, who was sentenced to death for the murder conviction, was not entitled to federal habeas corpus relief because the prisoner would have been eligible for parole under former G.S. 15A-1371(a1) if the jury had recommended life imprisonment; thus, because the prisoner was eligible for parole as a matter of law, the prisoner was not entitled to a parole ineligibility instruction. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

Jury Instruction on Presence Not Required. —

Trial court did not err in failing to instruct the jury regarding defendant’s presence at the scene, as evidence of such was not required to prove a fact necessary to establish any element of burning personal property. State v. Jefferies, 243 N.C. App. 455, 776 S.E.2d 872, 2015 N.C. App. LEXIS 807 (2015).

§ 14-67. [Repealed]

Repealed by Session Laws 1993, c. 539, s. 1358.2.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-67.1. Burning other buildings.

If any person shall wantonly and willfully set fire to or burn or cause to be burned or aid, counsel or procure the burning of any building or other structure of any type not otherwise covered by the provisions of this Article, he shall be punished as a Class H felon.

History. 1971, c. 816, s. 11; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1192.1; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Validity of Trial Not Affected by Improper Statutory Reference. —

Although indictments charging attempted first-degree arson recited that the charges were brought pursuant to G.S. 14-58 , they actually charged a violation of this section which prohibits attempted arson; this mistake in the citation of the statute did not affect the validity of the trial. State v. Barnes, 333 N.C. 666 , 430 S.E.2d 223, 1993 N.C. LEXIS 241 , cert. denied, 510 U.S. 946, 114 S. Ct. 387, 126 L. Ed. 2d 336, 1993 U.S. LEXIS 6721 (1993).

A conviction under this section does not require that the State prove a “burning” as is required under the arson statute and the common law. It requires that a defendant willfully and wantonly attempt to set fire to or burn any building or structure. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Evidence Held Sufficient. —

Evidence that defendant ignited a fire bomb in building, which caused some blackening of the floor tile, a steel cabinet and an office partition, and that some burned matches were also found in the building, was sufficient to support a conviction for attempting to set fire to or burn a building under this section. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Felony Murder. —

Evidence held sufficient to establish that defendant killed victim in the perpetration of the felony set forth in this section of attempting to burn a building used for trade, a felony committed with the use of a deadly weapon, a fire bomb. State v. Avery, 315 N.C. 1 , 337 S.E.2d 786, 1985 N.C. LEXIS 1997 (1985).

Erroneous Sentence. —

Where the indictment, the evidence, the jury instructions and the verdict were for burning an uninhabited dwelling house, which constitutes violation of this section, a Class H felony carrying a presumptive term of three years, judgment stating that the offense was in violation of G.S. 14-59 , a Class E felony, and sentencing defendant to a nine year term, the presumptive term for violation of G.S. 14-59 , would be vacated and the case remanded for entry of a proper judgment consistent with a conviction for violation of this section. State v. Smith, 74 N.C. App. 514, 328 S.E.2d 877, 1985 N.C. App. LEXIS 3534 (1985).

§ 14-67.2. Burning caused during commission of another felony.

  1. If any person, during the commission of a felony, knowingly damages any dwelling, structure, building, or conveyance referenced in this Article by means of fire or explosive that results in damages valued at ten thousand dollars ($10,000) or more, the person shall be punished as a Class D felon unless the person’s conduct is covered under some other provision of law providing greater punishment.
  2. If any person, during the commission of a felony, knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another person to damage any dwelling, structure, building, or conveyance referenced in this Article by means of fire or explosive that results in damages valued at ten thousand dollars ($10,000) or more, the person shall be punished as a Class D felon unless the person’s conduct is covered under some other provision of law providing greater punishment.

History. 2018-31, s. 1.

Editor’s Note.

Session Laws 2018-31, s. 4, made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

§ 14-68. Failure of owner of property to comply with orders of public authorities.

If the owner or occupant of any building or premises shall fail to comply with the duly authorized orders of the chief of the fire department, or of the Commissioner of Insurance, or of any municipal or county inspector of buildings or of particular features, facilities, or installations of buildings, he shall be guilty of a Class 3 misdemeanor, and punished only by a fine of not less than ten ($10.00) nor more than fifty dollars ($50.00) for each day’s neglect, failure, or refusal to obey such orders.

History. 1899, c. 58, s. 4; Rev., s. 3343; C.S., s. 4247; 1969, c. 1063, s. 1; 1993, c. 539, s. 30; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-69. Failure of officers to investigate incendiary fires.

If any town or city officer shall fail, neglect or refuse to comply with any of the requirements of the law in regard to the investigation of incendiary fires, he shall be guilty of a Class 3 misdemeanor and shall only be punished by a fine not less than twenty-five ($25.00) nor more than two hundred dollars ($200.00).

History. 1899, c. 58, s. 5; Rev., s. 3342; C.S., s. 4248; 1993, c. 539, s. 3; 1994, Ex. Sess., c. 24, s. 14(c); 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-69.1. Making a false report concerning destructive device.

  1. Except as provided in subsection (c) of this section, any person who, by any means of communication to any person or group of persons, makes a report, knowing or having reason to know the report is false, that there is located in or in sufficient proximity to cause damage to any building, house or other structure whatsoever or any vehicle, aircraft, vessel or boat any device designed to destroy or damage the building, house or structure or vehicle, aircraft, vessel or boat by explosion, blasting or burning, is guilty of a Class H felony.
  2. Repealed by S.L. 1997-443, s. 19.25(cc).
  3. Any person who, by any means of communication to any person or groups of persons, makes a report, knowing or having reason to know the report is false, that there is located in or in sufficient proximity to cause damage to any public building any device designed to destroy or damage the public building by explosion, blasting, or burning, is guilty of a Class H felony. Any person who receives a second conviction for a violation of this subsection within five years of the first conviction for violation of this subsection is guilty of a Class G felony. For purposes of this subsection, “public building” means educational property as defined in G.S. 14-269.2(a)(1), a hospital as defined in G.S. 131E-76(3), a building housing only State, federal, or local government offices, or the offices of State, federal, or local government located in a building that is not exclusively occupied by the State, federal, or local government.
  4. The court may order a person convicted under this section to pay restitution, including costs and consequential damages resulting from the disruption of the normal activity that would have otherwise occurred on the premises but for the false report, pursuant to Article 81C of Chapter 15A of the General Statutes.
  5. For purposes of this section, the term “report” shall include making accessible to another person by computer.

History. 1959, c. 555, s. 1; 1991, c. 648, s. 1; 1993, c. 539, ss. 32, 116; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(cc); 1999-257, s. 1; 2005-311, s. 1.

Legal Periodicals.

For survey on new penalties for criminal behavior in schools, see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

Defendant Juvenile Convicted Under Proper Subsection. —

Defendant juvenile’s claim that defendant was charged, tried, and convicted under the wrong statute for an offense involving a school was rejected as “any building” under G.S. 14-69.1(a) included a school; defendant did not have to be charged and convicted under G.S. 14-69.1(c). In re B.D.N., 186 N.C. App. 108, 649 S.E.2d 913, 2007 N.C. App. LEXIS 1969 (2007).

Plain Error Rule Inapplicable. —

Defendant juvenile’s claim that a trial court committed plain error by denying defendant’s motion to dismiss because defendant was improperly convicted under G.S. 14-69.1(a) and should have been charged under G.S. 14-69.1(c) was rejected as respondent did not challenge the jury instructions or the admissibility of evidence. In re B.D.N., 186 N.C. App. 108, 649 S.E.2d 913, 2007 N.C. App. LEXIS 1969 (2007).

Evidence Supported Denial of Motion to Dismiss. —

There was sufficient evidence to support the denial of defendant juvenile’s motion to dismiss a juvenile delinquency petition charging defendant with violating G.S. 14-69.1(a) as: (1) defendant was the last student to use a calculator prior to another student finding a message “Bomb at Lunch” on it; (2) a student testified that the student heard defendant say that defendant meant it all as a prank; and (3) another student testified that the student heard defendant tell a third student that the reason defendant made the bomb threat was because defendant thought it would be fun to get out of school. In re B.D.N., 186 N.C. App. 108, 649 S.E.2d 913, 2007 N.C. App. LEXIS 1969 (2007).

§ 14-69.2. Perpetrating hoax by use of false bomb or other device.

  1. Except as provided in subsection (c) of this section, any person who, with intent to perpetrate a hoax, conceals, places, or displays any device, machine, instrument or artifact, so as to cause any person reasonably to believe the same to be a bomb or other device capable of causing injury to persons or property is guilty of a Class H felony.
  2. Repealed by S.L. 1997-443, s. 19.25(dd).
  3. Any person who, with intent to perpetrate a hoax, conceals, places, or displays in or at a public building any device, machine, instrument, or artifact, so as to cause any person reasonably to believe the same to be a bomb or other device capable of causing injury to persons or property is guilty of a Class H felony. Any person who receives a second conviction for a violation of this subsection within five years of the first conviction for violation of this subsection is guilty of a Class G felony. For purposes of this subsection “public building” means educational property as defined in G.S. 14-269.2(a)(1), a hospital as defined in G.S. 131E-76(3), a building housing only State, federal, or local government offices, or the offices of State, federal, or local government located in a building that is not exclusively occupied by the State, federal, or local government.
  4. The court may order a person convicted under this section to pay restitution, including costs and consequential damages resulting from the disruption of the normal activity that would have otherwise occurred on the premises but for the hoax, pursuant to Article 81C of Chapter 15A of the General Statutes.

History. 1959, c. 555, s. 1; 1991, c. 648, s. 2; 1993, c. 539, s. 33; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(dd); 1999-257, s. 2.

Legal Periodicals.

For survey on new penalties for criminal behavior in schools, see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

Evidence Sufficient. —

Defendant’s motion to dismiss the charge of perpetrating a hoax by use of a false bomb or other device was properly denied where a jury could reasonably have found that defendant placed the device in his truck and concealed it by not telling the officer about it when asked whether there was anything in the truck that could harm the officers, and, despite consent to the search and telling officers there was nothing in the truck that could harm them, the officers also found multiple knives, a meat cleaver, and a BB rifle. State v. Golden, 224 N.C. App. 136, 735 S.E.2d 425, 2012 N.C. App. LEXIS 1363 (2012).

§ 14-69.3. Arson or other unlawful burning that results in serious bodily injury to a firefighter, law enforcement officer, fire investigator, or emergency medical technician.

  1. The following definitions apply in this section:
    1. Emergency medical technician. — The term includes an emergency medical technician, an emergency medical technician-intermediate, and an emergency medical technician-paramedic, as those terms are defined in G.S. 131E-155 .
    2. Fire investigator. — The term includes any person who, individually or as part of an investigative team, has the responsibility and authority to determine the origin, cause, or development of a fire or explosion.
  2. A person is guilty of a Class E felony if the person commits a felony under Article 15 of Chapter 14 of the General Statutes and a firefighter, law enforcement officer, fire investigator, or emergency medical technician suffers serious bodily injury while discharging or attempting to discharge official duties on the property, or proximate to the property, that is the subject of the firefighter’s, law enforcement officer’s, fire investigator’s, or emergency medical technician’s discharge or attempt to discharge his or her respective duties.

History. 2003-392, s. 3(a); 2018-31, s. 2.

Editor’s Note.

Session Laws 2018-31, s. 4, made the rewriting of this section by Session Laws 2018-31, s. 2, effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2018-31, s. 2, rewrote the section. For effective date and applicability, see editor’s note.

Subchapter V. Offenses Against Property.

Article 16. Larceny.

§ 14-70. Distinctions between grand and petit larceny abolished; punishment; accessories to larceny.

All distinctions between petit and grand larceny are abolished. Unless otherwise provided by statute, larceny is a Class H felony and is subject to the same rules of criminal procedure and principles of law as to accessories before and after the fact as other felonies.

History. R.C., c. 34, s. 26; Code, s. 1075; Rev., s. 3500; C.S., s. 4249; 1969, c. 522, s. 1; 1993, c. 539, s. 1163; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to larceny from dwelling by breaking and entering, see G.S. 14-51 et seq.

As to larceny of property and receipt of stolen goods, see G.S. 14-72 .

As to robbery, see G.S. 14-87 .

As to obtaining property by false pretense, see G.S. 14-100 et. seq.

As to taking away or injuring exhibits at fairs, see G.S. 14-164 .

As to theft of property from public libraries, museums, etc., see G.S. 14-398 .

As to restitution of stolen property to its owner, see G.S. 15-8 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to stealing of aircraft, see G.S. 63-25 .

CASE NOTES

Analysis

I.General Consideration

Larceny is a common-law offense. But common-law larceny does not include every wrongful taking and carrying away of the personal property of another. State v. Watts, 25 N.C. App. 194, 212 S.E.2d 557, 1975 N.C. App. LEXIS 2212 (1975).

At common law both grand and petit larceny were felonies. State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962).

Indictment Must State Ownership. —

The defendant’s conviction for larceny of a blue suitcase was vacated where the indictment should have named either the child as general owner, or his mother, as special owner but, instead, named his grandmother who was not standing in loco parentis and thus, had no special interest in the child’s belongings. State v. Salters, 137 N.C. App. 553, 528 S.E.2d 386, 2000 N.C. App. LEXIS 410 (2000).

At common law the stealing of property of any value was a felony, and both grand larceny and petit larceny were felonies. State v. Massey, 273 N.C. 721 , 161 S.E.2d 103, 1968 N.C. LEXIS 652 (1968).

Accessories Abolished. —

There are no accessories to larceny. All that counsel and aid are guilty of the offenses as principals. State v. Gaston, 73 N.C. 93 , 1875 N.C. LEXIS 24 (1875); State v. Bennett, 237 N.C. 749 , 76 S.E.2d 42, 1953 N.C. LEXIS 721 (1953), overruled in part, State v. Adcock, 310 N.C. 1 , 310 S.E.2d 587, 1984 N.C. LEXIS 1556 (1984).

Larceny conviction was valid where the evidence showed that defendant procured the commission of the larceny, because the distinction that formerly existed between principals and accessories before the fact has been abolished. State v. Cartwright, 81 N.C. App. 144, 343 S.E.2d 557, 1986 N.C. App. LEXIS 2275 (1986).

Larceny upon Two Persons at One Time. —

A person committing larceny from the person, upon two persons at the same time may be tried and convicted for both offenses. State v. Bynum, 117 N.C. 749 , 23 S.E. 218, 1895 N.C. LEXIS 142 (1895); State v. Bynum, 117 N.C. 752 , 23 S.E. 219, 1895 N.C. LEXIS 143 (1895).

Larceny of Several Items at Same Time and Place. —

A single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place. In such instances the constitutional guarantee against double jeopardy prohibits multiple convictions. State v. Froneberger, 81 N.C. App. 398, 344 S.E.2d 344, 1986 N.C. App. LEXIS 2303 (1986).

Casually Lost Property as Subject of Larceny. —

Notwithstanding what was said in some of the earlier cases, the modern view in this jurisdiction as well as others is that casually lost property may be the subject of larceny as well as that which is mislaid. No distinction is now made between property “lost” and property “mislaid.” State v. Moore, 46 N.C. App. 259, 264 S.E.2d 899, 1980 N.C. App. LEXIS 2830 (1980).

Same — If at the time of finding, the finder knows or has reasonable means of knowing or ascertaining the owner, he is deemed guilty of larceny if he keeps the property with the intent to deprive the owner thereof. State v. Moore, 46 N.C. App. 259, 264 S.E.2d 899, 1980 N.C. App. LEXIS 2830 (1980).

Same — Where a closed receptacle, container or pocketbook is found and the contents are not known until later, a finder may be guilty of larceny if a felonious intent is formed as soon as the contents are discovered. State v. Moore, 46 N.C. App. 259, 264 S.E.2d 899, 1980 N.C. App. LEXIS 2830 (1980).

Mitigation of Charge. —

An indictment for larceny charges a felony, and it is a matter of defense to mitigate the charge to a misdemeanor by showing that the property taken was a value of less than the amount prescribed by statute, and that it was neither taken from the person nor from a dwelling house. State v. Benfield, 9 N.C. App. 657, 177 S.E.2d 306, 1970 N.C. App. LEXIS 1430 (1970), vacated, 278 N.C. 199 , 179 S.E.2d 388, 1971 N.C. LEXIS 958 (1971).

II.Elements of the Offense

“Larceny”. —

Larceny, according to the common-law meaning of the term, may be defined as the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter’s consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker’s own use. State v. McCrary, 263 N.C. 490 , 139 S.E.2d 739, 1965 N.C. LEXIS 1312 (1965); State v. Moore, 46 N.C. App. 259, 264 S.E.2d 899, 1980 N.C. App. LEXIS 2830 (1980).

Larceny is a wrongful taking and carrying away of the personal property of another without his consent, which is done with felonious intent; that is, with intent to deprive the owner of his property and to appropriate it to the taker’s use fraudulently. State v. Watts, 25 N.C. App. 194, 212 S.E.2d 557, 1975 N.C. App. LEXIS 2212 (1975).

The essential elements of larceny are that defendant (1) took the property of another and (2) carried it away (3) without the owner’s consent (4) with the intent to deprive the owner of the property permanently; each of these element must be established by sufficient, competent evidence. State v. Lively, 83 N.C. App. 639, 351 S.E.2d 111, 1986 N.C. App. LEXIS 2753 (1986) See State v. Cathey, 162 N.C. App. 350, 590 S.E.2d 408, 2004 N.C. App. LEXIS 128 (2004).

Larceny Under Former G.S. 14-80 and G.S. 14-148 Distinguished. —

Where there was nothing in the record to establish that the urns or vases stolen by defendant from cemeteries were so connected to the land that they could not be the subject of common-law larceny or that they were affixed to the soil as tombstones or markers but rather they were movable objects of a decorative nature that were easily moved from the grave markers on which they rested, defendant was properly convicted of common-law larceny rather than the offenses under former G.S. 14-80 or G.S. 14-148 . State v. Schultz, 34 N.C. App. 120, 237 S.E.2d 349, 1977 N.C. App. LEXIS 1592 (1977), aff'd, 294 N.C. 281 , 240 S.E.2d 451, 1978 N.C. LEXIS 1232 (1978).

Larceny a Lesser-Included Offense of Robbery With a Dangerous Weapon. —

Defendant’s first-degree burglary conviction was not improper because, although the jury instructions, which stated that the State had to prove, inter alia, that at the time of the breaking and entering, defendant intended to commit robbery with a firearm or attempted to commit robbery with a firearm, were at variance with the indictment, which alleged that defendant committed the offense by breaking and entering with the intent to commit felony larceny, the jury instructions actually benefitted defendant by adding an additional element for the State to prove, and thus there was no prejudicial error; any error in the jury charge was not prejudicial because larceny was a lesser-included offense of robbery with a dangerous weapon. State v. Farrar, 361 N.C. 675 , 651 S.E.2d 865, 2007 N.C. LEXIS 1097 (2007).

The phrase “felonious intent” originated when both grand and petit larceny were felonies. Now “felonious intent,” in the law of larceny, does not necessarily signify an intent to commit a felony. State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962).

Intent Is Necessary. —

To constitute the crime of larceny, there must be an original, felonious intent, general or special, at the time of the taking. If such intent be present, no subsequent act or explanation can change the felonious character of the original act. But if the requisite intent be not present, the taking is only a trespass, and it cannot be felony by any subsequent misconduct or bad faith on the part of the taker. State v. Arkle, 116 N.C. 1017 , 21 S.E. 408, 1895 N.C. LEXIS 320 (1895); State v. Holder, 188 N.C. 561 , 125 S.E. 113, 1924 N.C. LEXIS 125 (1924).

Felonious intent is an essential element of the crime of larceny. State v. McCrary, 263 N.C. 490 , 139 S.E.2d 739, 1965 N.C. LEXIS 1312 (1965).

But “Intent to appropriate the goods to his own use” has been eliminated and is not now an essential element of the crime of larceny. State v. Watts, 25 N.C. App. 194, 212 S.E.2d 557, 1975 N.C. App. LEXIS 2212 (1975).

And Intent Need Only Be To Deprive Owner of Property. —

To constitute larceny it is not required that the purpose of the taking be to convert the stolen property to the pecuniary advantage or convenience of the taker but it is sufficient if the taking be fraudulent and with the intent wholly to deprive the owner of his property. State v. Watts, 25 N.C. App. 194, 212 S.E.2d 557, 1975 N.C. App. LEXIS 2212 (1975).

Owner’s Possession Must Be Severed. —

Even if only for an instant, there must be a complete severance of the object from the owner’s possession, to such an extent that the defendant has absolute possession of it. State v. Carswell, 36 N.C. App. 377, 243 S.E.2d 911, 1978 N.C. App. LEXIS 2487 , rev'd, 296 N.C. 101 , 249 S.E.2d 427, 1978 N.C. LEXIS 1165 (1978).

Lack of Consent. —

Evidence showing that the owners of a burglarized residence were out of town at the time of the crime, that their daughter periodically checked the house to make sure it was secure, that when she checked the house on the day before the burglary all doors and windows were locked, and that when she checked the house on the day after the burglary, the house had been forcibly entered through the basement door, drawers were standing open, rugs turned over, jewelry cases emptied, silver items disarranged, and jewelry and shotguns were missing, coupled with the owner’s testimony that she had feared a robbery would occur and had taken most of her valuables out of the house and left a note for the robbers to please go away, was sufficient to support a finding of lack of consent. State v. Mandina, 91 N.C. App. 686, 373 S.E.2d 155, 1988 N.C. App. LEXIS 911 (1988).

An indictment for larceny that fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective; if a bill of indictment does not allege that an incorporated legal entity is a corporation or the name of the legal entity does not import that it is a corporation, the indictment is fatally defective. Thus, an indictment that alleged larceny, but failed to name the corporation that owned the property defendant supposedly stole was fatally defective and a conviction for larceny was reversed. State v. Cathey, 162 N.C. App. 350, 590 S.E.2d 408, 2004 N.C. App. LEXIS 128 (2004).

Indictments alleging that the city transit and parking services owned the parking meters allegedly broken into by defendant, were insufficient to allege injury to personal property in violation of G.S. 14-160 and larceny because the city transit and parking services was not a natural person, and the indictments did not allege that the city transit and parking services was capable of owning property. State v. Price, 170 N.C. App. 672, 613 S.E.2d 60, 2005 N.C. App. LEXIS 1085 (2005).

Indictment charging defendant with larceny was fatally defective as it did not state that a church from which the items were taken was a legal entity capable of owning property. State v. Patterson, 194 N.C. App. 608, 671 S.E.2d 357, 2009 N.C. App. LEXIS 24 (2009).

III.Practice and Procedure

Indictment — Ownership of Property Must Be Alleged. —

The common-law offense of larceny contemplates that the property taken must belong to or be in the possession of another and the statutory offense of embezzlement provides that the misappropriated property must belong to “any other person or corporation, unincorporated association, or organization.” In view of the breadth of the offenses, the warrant or bill of indictment charging these offenses must allege the ownership of the property either in a natural person or a legal entity capable of owning property. State v. Wooten, 18 N.C. App. 652, 197 S.E.2d 614, 1973 N.C. App. LEXIS 1968 , cert. denied, 283 N.C. 758 , 198 S.E.2d 728, 1973 N.C. LEXIS 1096 (1973).

In a prosecution for breaking or entering, and felonious larceny, the allegations of ownership described in a bill of indictment are essential. State v. Crawford, 29 N.C. App. 117, 223 S.E.2d 534, 1976 N.C. App. LEXIS 2388 (1976).

If the evidence offered at trial fails to show the ownership as alleged in the indictment of the premises entered and the property taken, a motion for judgment of nonsuit should be allowed, both to a charge of breaking or entering and to a charge of felonious larceny. State v. Crawford, 29 N.C. App. 117, 223 S.E.2d 534, 1976 N.C. App. LEXIS 2388 (1976).

Where the indictments alleging larceny in violation of G.S. 14-70 failed to allege that the retailer that was the victim in the case was a legal entity capable of owning property, the indictments were flawed and had to be vacated. State v. Phillips, 162 N.C. App. 719, 592 S.E.2d 272, 2004 N.C. App. LEXIS 258 (2004) in part, 172 N.C. App. 143, 615 S.E.2d 880, 2005 N.C. App. LEXIS 1426 (2005).

Felony larceny count in an indictment was not saved by any language in the second count under G.S. 15A-924(a)(2) because the larceny count, which failed to state that a store was a legal entity capable of owning the stolen cartons of cigarettes, did not incorporate by reference language of the second count, which was properly worded; thus, the indictment was fatally defective. State v. Brown, 184 N.C. App. 539, 646 S.E.2d 590, 2007 N.C. App. LEXIS 1469 (2007).

Same — Description of Property. —

There is required a reasonable certainty in the designation of stolen property to enable the defendant to know and meet the specific charge if he can, and to protect himself if he cannot, from a second prosecution for the same offense. State v. Clark, 30 N.C. 226 , 1848 N.C. LEXIS 54 (1848); State v. Horan, 61 N.C. 571 , 1868 N.C. LEXIS 76 (1868); State v. Bragg, 86 N.C. 687 , 1882 N.C. LEXIS 275 (1882).

In a prosecution for larceny, the property alleged to have been taken should be described by the name usually applied to it in its condition at that time, and, if possible, the number, kind, quality, and other distinguishing features. State v. Hartley, 39 N.C. App. 70, 249 S.E.2d 453, 1978 N.C. App. LEXIS 2343 (1978), cert. denied, 296 N.C. 738 , 254 S.E.2d 179, 1979 N.C. LEXIS 1286 (1979).

Indictment charging that defendant “unlawfully and willfully did feloniously steal, take and carry away” seven dollars, in violation of this section and G.S. 14-72(a), failed to allege felonious larceny, and charged only misdemeanor larceny. State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Where indictment for larceny failed to properly allege felonious larceny, a conviction for felonious larceny could not stand; however, since the indictment clearly charged misdemeanor larceny, the jury verdict would be considered a verdict of guilty of misdemeanor larceny, and the cause would be remanded for a proper sentence. State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Same — It is not necessary for an indictment to allege that a larceny was from the person for it to be shown. State v. Benfield, 9 N.C. App. 657, 177 S.E.2d 306, 1970 N.C. App. LEXIS 1430 (1970), vacated, 278 N.C. 199 , 179 S.E.2d 388, 1971 N.C. LEXIS 958 (1971).

Same — Larceny and Malicious Mischief Distinguished. —

An indictment for larceny at common law for stealing a cow is not supported by proof that the defendant shot the cow down and then cut off her ears. Such an act is not larceny, but malicious mischief. State v. Butler, 65 N.C. 309 (1871). See § 14-85 .

Conviction for Larceny, Receiving and Possession of Same Property. —

Where defendant was convicted of larceny, receiving, and possession of the same property, he may be convicted of only one of those offenses, and the trial court erred in failing to arrest judgment for defendant’s conviction of felonious possession of stolen goods. State v. Barnett, 113 N.C. App. 69, 437 S.E.2d 711, 1993 N.C. App. LEXIS 1308 (1993).

Convictions for felonious possession of stolen property were arrested, as defendant could not be convicted of larceny and possession of the same stolen property. State v. Spencer, 187 N.C. App. 605, 654 S.E.2d 69, 2007 N.C. App. LEXIS 2555 (2007).

Inference Arising from Possession of Recently Stolen Property. —

The defendant’s possession of the fruits of the crime recently after its commission justifies the inference of guilt on his trial for larceny. State v. Knight, 261 N.C. 17 , 134 S.E.2d 101, 1964 N.C. LEXIS 412 (1964).

The doctrine of possession of recently stolen property is a factual presumption whereby a person found in the unexplained possession of recently stolen property is presumed to be the thief. State v. Majette, 30 N.C. App. 120, 226 S.E.2d 223, 1976 N.C. App. LEXIS 2163 (1976).

A defendant’s possession of stolen goods soon after the theft is a circumstance tending to show him guilty of the larceny. State v. Greene, 30 N.C. App. 507, 227 S.E.2d 154, 1976 N.C. App. LEXIS 2294 (1976).

Same — Burden of Proof. —

Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), is inapposite to the so-called recent possession doctrine because that doctrine does not shift the burden of proof to the defendant. The doctrine only allows the jury to infer that the defendant stole the goods, because the State first proved that the stolen goods were in defendant’s possession so soon after the theft that it was unlikely that he obtained them honestly. The doctrine is only an evidentiary inference shifting to the defendant the burden of going forward with evidence. Evidentiary inferences and presumptions such as this are unaffected by Mullaney. State v. Hales, 32 N.C. App. 729, 233 S.E.2d 601, 1977 N.C. App. LEXIS 2048 , cert. denied, 292 N.C. 732 , 235 S.E.2d 782, 1977 N.C. LEXIS 1196 (1977).

Same — Instruction. —

Where no evidence was presented which tended to show that codefendant was ever in possession, actual or constructive, of the recently stolen property, the instruction to apply the doctrine of possession of recently stolen property was prejudicial error as to him. State v. Majette, 30 N.C. App. 120, 226 S.E.2d 223, 1976 N.C. App. LEXIS 2163 (1976).

Trial judge correctly instructed the jury regarding the elements of larceny, and a misstatement in the mandate portion of the charge, which was not brought to the attention of the trial judge when made or before the jury retired to consider its verdict, was not error; the jury was fully instructed as to all six elements of larceny, and the instructions were only, at most, incomplete at one important point. State v. Skinner, 162 N.C. App. 434, 590 S.E.2d 876, 2004 N.C. App. LEXIS 177 (2004).

Inference from Pawning on Different Occasions. —

The fact that defendant pawned silver stolen from his mother’s house, where he also lived, on different occasions, standing alone, was insufficient to support an inference that he took it on separate occasions. State v. Froneberger, 81 N.C. App. 398, 344 S.E.2d 344, 1986 N.C. App. LEXIS 2303 (1986).

Exclusive possession, for purposes of the recent possession doctrine, does not necessarily mean sole possession; it means possession to the exclusion of all persons not party to the crime. State v. Lytton, 88 N.C. App. 758, 365 S.E.2d 6, 1988 N.C. App. LEXIS 206 (1988).

What Is Recent Depends on Circumstances. —

For purposes of the recent possession doctrine, what period after a larceny is recent depends upon the circumstances. State v. Lytton, 88 N.C. App. 758, 365 S.E.2d 6, 1988 N.C. App. LEXIS 206 (1988).

Convictions Upheld Under Recent Possession Doctrine. —

Larceny and burglary convictions upheld under the doctrine of recent possession. State v. Walker, 86 N.C. App. 336, 357 S.E.2d 384, 1987 N.C. App. LEXIS 2694 (1987), aff'd, 321 N.C. 593 , 364 S.E.2d 141, 1988 N.C. LEXIS 5 (1988).

Evidence held sufficient to withstand motion for nonsuit in prosecution for larceny. See State v. Ellis, 32 N.C. App. 226, 231 S.E.2d 285, 1977 N.C. App. LEXIS 1888 (1977); State v. Craft, 32 N.C. App. 357, 232 S.E.2d 282, 1977 N.C. App. LEXIS 1928 , cert. denied, 292 N.C. 642 , 235 S.E.2d 63, 1977 N.C. LEXIS 1158 (1977).

Where the evidence shows (1) that a breaking and entering occurred; (2) that prior thereto the accused had possession of an instrument used to effect it; (3) that such possession occurred within a short time prior to the breaking and entering; and (4) that the instrument was found at the scene of the crime immediately after the crime was committed, a jury would be justified in finding that the instrument had been brought there by the person who had been shown to have previously possessed it and that such person used it to effect the breaking and entering. If the evidence is also sufficient to show that the crime of larceny was committed pursuant to the breaking and entering, then the jury may infer that the accused is guilty of larceny as well as breaking and entering. State v. McNair, 36 N.C. App. 196, 243 S.E.2d 805, 1978 N.C. App. LEXIS 2447 (1978).

Evidence of orange paint on the defendant’s van identical or similar to paint used on the stolen tractor and mowing deck, where the defendant’s witnesses presented a plausible explanation for the presence of the paint, was insufficient to find the defendant guilty of larceny. State v. Lively, 83 N.C. App. 639, 351 S.E.2d 111, 1986 N.C. App. LEXIS 2753 (1986); 319 N.C. 461 , 356 S.E.2d 10 (1987).

Evidence (1) that when the victim, a 76-year-old widow who was living alone, walked into her house, defendant struck her in the head seven or eight times, and left, (2) that when a neighbor discovered the victim that evening, her pocketbook was moved and there was no money in it, (3) that police officers followed footsteps in the snow to a house where defendant was, and (4) that the victim identified defendant as her attacker, was sufficient to support the conviction for felonious larceny. State v. Skinner, 162 N.C. App. 434, 590 S.E.2d 876, 2004 N.C. App. LEXIS 177 (2004).

Evidence Insufficient. —

A charge of stealing two barrels of turpentine is not supported by proof of the taking of that quantity from the box cut in the tree to receive and hold the descending sap. State v. Moore, 33 N.C. 70 , 1850 N.C. LEXIS 21 (1850); State v. Bragg, 86 N.C. 687 , 1882 N.C. LEXIS 275 (1882).

Evidence of orange paint on the defendant’s van identical or similar to paint used on the stolen tractor and mowing deck, where the defendant’s witnesses presented a plausible explanation for the presence of the paint, was insufficient to find the defendant guilty of larceny. State v. Lively, 83 N.C. App. 639, 351 S.E.2d 111, 1986 N.C. App. LEXIS 2753 (1986).

Instructions — Intent. —

The trial court, in charging the jury where the factual situation raises a question as to the intent to deprive permanently, should instruct on this element and add that while temporary deprivation will not suffice, if the defendant did not ever intend to return the property and was totally indifferent as to whether the owner ever recovered it, then that would constitute an “intent to permanently deprive.” State v. Watts, 25 N.C. App. 194, 212 S.E.2d 557, 1975 N.C. App. LEXIS 2212 (1975).

Same — Felonious Intent. —

What is meant by felonious intent is a question for the court to explain to the jury, and whether it is present at any particular time is for the jury to say. State v. McCrary, 263 N.C. 490 , 139 S.E.2d 739, 1965 N.C. LEXIS 1312 (1965).

Same — Felonious Larceny of Automobile. —

The trial court properly charged the jury that to find defendant guilty of the felonious larceny of an automobile, they must find from the evidence and beyond a reasonable doubt not only that defendant took and carried away the automobile without the owner’s consent, knowing that he was not entitled to take it and intending at the time to deprive the owner of its use permanently, but also that the automobile was worth more than $200.00 (now $400.00). State v. Dickerson, 20 N.C. App. 169, 201 S.E.2d 69, 1973 N.C. App. LEXIS 1502 (1973).

Same — Failure to Charge Lesser Included Offense. —

Where all of the evidence indicated that the value of the stolen property exceeded $200.00 (now $400.00), the trial court did not err by failing to instruct the jury to consider in addition an issue as to defendant’s possible guilt or innocence of the lesser included offense of misdemeanor larceny. State v. Dickerson, 20 N.C. App. 169, 201 S.E.2d 69, 1973 N.C. App. LEXIS 1502 (1973).

Since all the evidence indicated that the value of the stolen property exceeded $200.00 (now $400.00), the trial court did not err by failing to instruct as to the lesser included offense of misdemeanor larceny. State v. Reese, 31 N.C. App. 575, 230 S.E.2d 213, 1976 N.C. App. LEXIS 2064 (1976).

Verdict of Guilty of “Grand Larceny”. —

While there is no longer a crime in this State designated as “grand larceny” the verdict of the jury must be considered as tantamount to a verdict finding the defendant guilty as charged in the bill of indictment. State v. Walker, 6 N.C. App. 740, 171 S.E.2d 91, 1969 N.C. App. LEXIS 1270 (1969).

§ 14-71. Receiving stolen goods; receiving or possessing goods represented as stolen.

  1. If any person shall receive any chattel, property, money, valuable security or other thing whatsoever, the stealing or taking whereof amounts to larceny or a felony, either at common law or by virtue of any statute made or hereafter to be made, such person knowing or having reasonable grounds to believe the same to have been feloniously stolen or taken, he shall be guilty of a Class H felony, and may be indicted and convicted, whether the felon stealing and taking such chattels, property, money, valuable security or other thing, shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and any such receiver may be dealt with, indicted, tried and punished in any county in which he shall have, or shall have had, any such property in his possession or in any county in which the thief may be tried, in the same manner as such receiver may be dealt with, indicted, tried and punished in the county where he actually received such chattel, money, security, or other thing; and such receiver shall be punished as one convicted of larceny.
  2. If a person knowingly receives or possesses property in the custody of a law enforcement agency that was explicitly represented to the person by an agent of the law enforcement agency or a person authorized to act on behalf of a law enforcement agency as stolen, the person is guilty of a Class H felony and may be indicted, tried, and punished in any county in which the person received or possessed the property.

History. 1797, c. 485, s. 2; R.C., c. 34, s. 56; Code, s. 1074; Rev., s. 3507; C.S., s. 4250; 1949, c. 145, s. 1; 1975, c. 163, s. 1; 1993, c. 539, s. 1164; 1994, Ex. Sess., c. 24, s. 14(c); 2007-373, s. 1; 2008-187, s. 34(a).

Cross References.

As to seizure and forfeiture of conveyance used in committing a crime under this section, see G.S. 14-86.1 .

Effect of Amendments.

Session Laws 2007-373, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, added “receiving or possessing goods represented as stolen” at the end of the section catchline; designated the previously existing provisions as subsection (a); and added subsection (b).

Session Laws 2008-187, s. 34(a), effective August 7, 2008, inserted “or a person authorized to act on behalf of a law enforcement agency” in subsection (b).

Legal Periodicals.

As to elements of crime of receiving stolen goods, see 26 N.C.L. Rev. 192 (1948).

CASE NOTES

Analysis

I.General Consideration

Editor’s Note. —

Many of the cases below were decided under this section as it stood prior to the 1975 amendment, which added the language concerning “reasonable grounds to believe” that property is stolen with respect to the degree of knowledge required to support a conviction.

Possession of stolen goods is a statutory crime created by the legislature and is of recent vintage. State v. Taylor, 64 N.C. App. 165, 307 S.E.2d 173, 1983 N.C. App. LEXIS 3254 (1983), aff'd in part and rev'd in part, 311 N.C. 380 , 317 S.E.2d 369, 1984 N.C. LEXIS 1741 (1984).

Purpose. —

The possession statutes were passed to provide protection for society in those instances where the State does not have sufficient evidence to prove who committed the larceny, or the elements of receiving stolen property. State v. Taylor, 64 N.C. App. 165, 307 S.E.2d 173, 1983 N.C. App. LEXIS 3254 (1983), aff'd in part and rev'd in part, 311 N.C. 380 , 317 S.E.2d 369, 1984 N.C. LEXIS 1741 (1984).

Effect of the 1975 amendment to this section was to alter the standard of proof established in prosecutions thereunder. State v. Fearing, 304 N.C. 471 , 284 S.E.2d 487, 1981 N.C. LEXIS 1363 (1981).

The inclusion in this section in 1975 of language concerning a defendant’s reasonable grounds to believe the items were stolen signifies a clear intent by the legislature to equate a defendant’s reasonable belief with implied guilty knowledge. State v. Parker, 316 N.C. 295 , 341 S.E.2d 555, 1986 N.C. LEXIS 2129 (1986).

Crimes of larceny and of receiving stolen goods, knowing them to have been stolen, are separate and distinct offenses. However, receiving stolen property is a sort of secondary crime based upon a prior commission of the primary crime of larceny. It presupposes, but does not include, larceny. Therefore, the elements of larceny are not elements of the crime of receiving. State v. Brady, 237 N.C. 675 , 75 S.E.2d 791, 1953 N.C. LEXIS 706 (1953); State v. Neill, 244 N.C. 252 , 93 S.E.2d 155, 1956 N.C. LEXIS 398 (1956).

Receiving stolen goods and possession of stolen goods are separate and independent statutory offenses under this section and G.S. 14-71.1 , neither of which is a lesser-included offense of the other. State v. Blythe, 85 N.C. App. 341, 354 S.E.2d 889, 1987 N.C. App. LEXIS 2595 (1987).

Crime of receiving stolen goods is a sort of secondary crime based upon a prior commission of the primary crime of larceny. State v. Muse, 280 N.C. 31 , 185 S.E.2d 214, 1971 N.C. LEXIS 1088 (1971), cert. denied, 406 U.S. 974, 92 S. Ct. 2409, 32 L. Ed. 2d 674, 1972 U.S. LEXIS 2400 (1972).

Person cannot be guilty both of stealing property and receiving the same property knowing it to have been stolen by someone else. State v. Prince, 39 N.C. App. 685, 251 S.E.2d 631, 1979 N.C. App. LEXIS 2559 , cert. denied, 296 N.C. 739 , 254 S.E.2d 180, 1979 N.C. LEXIS 1292 (1979).

A person cannot be guilty of both larceny and receiving the same goods. Thus, one who steals property and one who receives it afterward from him knowing it to have been stolen, are guilty of separate offenses, and neither is the accomplice of the other. State v. Whitaker, 40 N.C. App. 251, 252 S.E.2d 242, 1979 N.C. App. LEXIS 2604 (1979).

While receiving and possession are distinct and separate crimes for which the legislature could have provided punishment for the same individual, this was not intended by the enactment of the possession statutes. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

Receiver of Stolen Goods Punished as Principal. —

By abolishing the distinction between petit and grand larceny the offense of accessory after the fact was also abolished, and one receiving stolen goods is treated and punished as principal. State v. Tyler, 85 N.C. 569 , 1881 N.C. LEXIS 326 (1881).

Receiving Stolen Property Is Not Accessorial to Larceny. —

This section, defining the offense of receiving stolen property, clearly creates an offense not accessorial to larceny. State v. Golden, 20 N.C. App. 451, 201 S.E.2d 546, 1974 N.C. App. LEXIS 2463 , cert. denied, 285 N.C. 88 , 203 S.E.2d 60, 1974 N.C. LEXIS 920 (1974).

Accepting part of the proceeds of a crime does not make one an accessory after the fact; rather, it constitutes the crime of receiving stolen goods. State v. Lewis, 58 N.C. App. 348, 293 S.E.2d 638, 1982 N.C. App. LEXIS 2771 (1982), cert. denied, 311 N.C. 766 , 321 S.E.2d 152, 1984 N.C. LEXIS 2125 (1984).

Section Applies Only to Receiving, Not Possession or Offering for Sale. —

The possession or offering for sale of goods, known to have been stolen, is not a statutory crime under this section, which applies only to receiving the stolen goods. State v. Burnette, 22 N.C. App. 29, 205 S.E.2d 357, 1974 N.C. App. LEXIS 2224 (1974).

Plea of guilty of receiving stolen property knowing it to have been stolen is insufficient to support a felony sentence, even though the indictment charges defendant with receiving stolen goods having a value of more than $200 (now $400). State v. Wallace, 270 N.C. 155 , 153 S.E.2d 873, 1967 N.C. LEXIS 1318 (1967).

II.Elements of Offense

In General. —

The criminality of the action denounced by this section consists in receiving with guilty knowledge and felonious intent goods which previously had been stolen. Sufficient evidence of all the essential elements of the offense must be made to appear in order to sustain a conviction. State v. Yow, 227 N.C. 585 , 42 S.E.2d 661, 1947 N.C. LEXIS 462 (1947).

The essential elements of the crime of receiving stolen goods which must be proven, are stated as follows: (a) The stealing of the goods by someone other than the accused; (b) that the accused, knowing them to be stolen, received or aided in concealing the goods, and (c) continued such possession or concealment with a dishonest purpose. State v. Brady, 237 N.C. 675 , 75 S.E.2d 791, 1953 N.C. LEXIS 706 (1953); State v. Muse, 280 N.C. 31 , 185 S.E.2d 214, 1971 N.C. LEXIS 1088 (1971), cert. denied, 406 U.S. 974, 92 S. Ct. 2409, 32 L. Ed. 2d 674, 1972 U.S. LEXIS 2400 (1972); State v. Grant, 17 N.C. App. 15, 193 S.E.2d 308, 1972 N.C. App. LEXIS 1551 (1972); State v. Lash, 21 N.C. App. 365, 204 S.E.2d 563, 1974 N.C. App. LEXIS 1806 , cert. denied, 285 N.C. 593 , 206 S.E.2d 865, 1974 N.C. LEXIS 1043 (1974); State v. Burnette, 22 N.C. App. 29, 205 S.E.2d 357, 1974 N.C. App. LEXIS 2224 (1974); State v. May, 41 N.C. App. 370, 255 S.E.2d 303, 1979 N.C. App. LEXIS 2668 (1979).

The essential elements of the offense of receiving stolen goods are the receiving of goods which had been feloniously stolen by some person other than the accused, with knowledge by the accused at the time of the receiving that the goods had been theretofore feloniously stolen, and the retention of the possession of such goods with a felonious intent or with a dishonest motive. State v. Tilley, 272 N.C. 408 , 158 S.E.2d 573, 1968 N.C. LEXIS 667 (1968); State v. Watson, 13 N.C. App. 189, 185 S.E.2d 33, 1971 N.C. App. LEXIS 1188 (1971).

The criminality of the action denounced by this section consists in receiving with guilty knowledge and felonious intent goods which previously had been stolen. State v. Tilley, 272 N.C. 408 , 158 S.E.2d 573, 1968 N.C. LEXIS 667 (1968).

In a prosecution for receiving stolen goods, having established the theft of goods by someone other than the accused, the State had further to establish that the accused, knowing or having reasons to know the goods were stolen, received or aided in concealing the goods and continued such possession with a dishonest purpose. State v. Moore, 46 N.C. App. 259, 264 S.E.2d 899, 1980 N.C. App. LEXIS 2830 (1980).

The elements of receiving stolen goods are: (1) The receipt or concealment of property, (2) stolen by another, (3) knowing, or with reasonable grounds to believe, that it was stolen, and (4) with a dishonest purpose. State v. Gardner, 84 N.C. App. 616, 353 S.E.2d 662, 1987 N.C. App. LEXIS 2537 , aff'd, 320 N.C. 789 , 360 S.E.2d 695, 1987 N.C. LEXIS 2410 (1987).

Elements of attempted receipt of stolen property are: (1) guilty knowledge at the time that the property had been stolen; and (2) the commission of some overt act with the intent to commit the major offense; and (3) a reasonable belief, at the time the property was received, that the property was stolen. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

Predisposition is not an element included in the definition of attempted receipt of stolen property. Rather, it relates to defendant’s propensity in general to attempt to receive stolen property. The State was required to prove that defendant received the property with a dishonest purpose, to wit, the intent to deprive the true owner of her property. While evidence of this intent may tend to show defendant’s predisposition, such evidence does not make predisposition an element of the crime. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

Nor are Secrecy, Malice, Deceit, or Intent to Defraud. —

Attempting to receive stolen property is a crime of the same degree as attempted robbery, attempted burglary and an attempt to commit a crime against nature. The crime of attempted receipt of stolen property includes secrecy, malice, deceit or intent to defraud as necessary elements. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

Guilty Knowledge Essential. —

This section makes guilty knowledge one of the essential elements of the offense of receiving stolen goods. This knowledge may be actual, or it may be implied when the circumstances under which the goods were received are sufficient to lead the party charged to believe they were stolen. State v. Stathos, 208 N.C. 456 , 181 S.E. 273, 1935 N.C. LEXIS 50 (1935); State v. Grant, 17 N.C. App. 15, 193 S.E.2d 308, 1972 N.C. App. LEXIS 1551 (1972).

Knowledge by the accused that the goods were stolen is an essential element of the offense of receiving stolen goods. State v. Watson, 13 N.C. App. 189, 185 S.E.2d 33, 1971 N.C. App. LEXIS 1188 (1971).

Guilty knowledge is one of the essential elements of the crime of receiving stolen goods. State v. May, 41 N.C. App. 370, 255 S.E.2d 303, 1979 N.C. App. LEXIS 2668 (1979).

The test of guilty knowledge is whether defendant knew, or must have known, that the goods were stolen. State v. Hart, 14 N.C. App. 120, 187 S.E.2d 351, 1972 N.C. App. LEXIS 2052 , cert. denied, 281 N.C. 625 , 190 S.E.2d 469, 1972 N.C. LEXIS 1143 (1972).

Guilty knowledge may be inferred from incriminating circumstances. State v. Hart, 14 N.C. App. 120, 187 S.E.2d 351, 1972 N.C. App. LEXIS 2052 , cert. denied, 281 N.C. 625 , 190 S.E.2d 469, 1972 N.C. LEXIS 1143 (1972); State v. Allen, 45 N.C. App. 417, 263 S.E.2d 630, 1980 N.C. App. LEXIS 2659 (1980).

Purchase from Public Business. —

Where a defendant, charged with a violation of this section, purchases property in a public business from one in custody or possession and with the actual or apparent authority to sell it, the State must prove that the property was taken by the seller in violation of a felony statute, such as G.S. 14-74 , and that at the time of the transaction the defendant had knowledge, or reasonable grounds to believe, that the seller had so taken the property and had no authority to transact the sale. State v. Babb, 34 N.C. App. 336, 238 S.E.2d 308, 1977 N.C. App. LEXIS 1693 (1977).

Felonious intent in receiving stolen goods with knowledge at the time that they had been stolen is necessary to a conviction under this section, and a charge which fails to submit the question of such intent to the jury entitled defendant to a new trial. State v. Morrison, 207 N.C. 804 , 178 S.E. 562, 1935 N.C. LEXIS 275 (1935).

Property Must Be Stolen. —

If there was no theft, the buying of the property is not criminal, even if the buyer believes the property to have been stolen. State v. Collins, 240 N.C. 128 , 81 S.E.2d 270, 1954 N.C. LEXIS 663 (1954).

If property was not stolen or taken from the owner in violation of this section, as where the original taking was without felonious intent, or was not against the owner’s will or consent, the receiver is not guilty of receiving stolen property. State v. Collins, 240 N.C. 128 , 81 S.E.2d 270, 1954 N.C. LEXIS 663 (1954).

Or Taken In Violation of Other Felony Statute. —

Under this section the property knowingly received or concealed could include not only stolen property but trust property converted in violation of G.S. 14-74 or property taken in violation of any other felony statute. But if the property knowingly received was not stolen but was taken in violation of some felony statute, the indictment should so allege. State v. Babb, 34 N.C. App. 336, 238 S.E.2d 308, 1977 N.C. App. LEXIS 1693 (1977).

Same — Receiving Embezzled Property. —

This section makes it an offense knowingly to receive embezzled property in violation of a felony embezzlement statute, but such offense is distinct from that of receiving stolen goods, and a charge of receiving stolen goods is not sustained by proof that the goods were merely embezzled. State v. Babb, 34 N.C. App. 336, 238 S.E.2d 308, 1977 N.C. App. LEXIS 1693 (1977).

Upon Recovery by Owner, Character as Stolen Property Lost. —

When the actual, physical possession of stolen property has been recovered by the owner or his agent, its character as stolen property is lost and the subsequent delivery of the property by the owner or agent to a particeps criminis, for the purpose of entrapping him as the receiver of stolen goods, does not establish the crime, for in a legal sense he does not receive stolen property. State v. Hageman, 307 N.C. 1 , 296 S.E.2d 433, 1982 N.C. LEXIS 1596 (1982).

Constructive receipt is sufficient to constitute “receiving” within the meaning of this section. State v. Hart, 14 N.C. App. 120, 187 S.E.2d 351, 1972 N.C. App. LEXIS 2052 , cert. denied, 281 N.C. 625 , 190 S.E.2d 469, 1972 N.C. LEXIS 1143 (1972).

Goods Received Through Agent. —

If stolen goods are received by an agent of the accused, at his instance, that is sufficient to sustain a conviction if he knew that they were stolen goods. State v. Stroud, 95 N.C. 626 , 1886 N.C. LEXIS 320 (1886).

It would certainly make the accused a receiver in contemplation of law, if the stolen property was received by his servant or agent, acting under his directions, he knowing at the time of giving the orders that it was stolen. State v. Hart, 14 N.C. App. 120, 187 S.E.2d 351, 1972 N.C. App. LEXIS 2052 , cert. denied, 281 N.C. 625 , 190 S.E.2d 469, 1972 N.C. LEXIS 1143 (1972).

Self-Interest Not Necessary for Conviction. —

It is not necessary that one receiving stolen goods do it for the purpose of making them his own or to derive profit from them, if he receives them to help the thief, as a friendly act, he is nevertheless guilty. State v. Rushing, 69 N.C. 29 , 1873 N.C. LEXIS 161 (1873).

Time Not of the Essence. —

The crime of receiving stolen goods is not one of the offenses in which time is of the essence. State v. Tessnear, 254 N.C. 211 , 118 S.E.2d 393, 1961 N.C. LEXIS 375 (1961).

Value of Goods Received Must Exceed $400.00. —

That the value of stolen goods received with knowledge by defendant exceeded $100.00 (now $400.00) is an essential element of the offense prescribed by this section. State v. Tessnear, 254 N.C. 211 , 118 S.E.2d 393, 1961 N.C. LEXIS 375 (1961); State v. Wallace, 270 N.C. 155 , 153 S.E.2d 873, 1967 N.C. LEXIS 1318 (1967).

In order for the defendant to be found guilty of a felony under this section, it is incumbent upon the State to prove beyond a reasonable doubt that the value of the goods was more than $200 (now $400). This is an essential element of the crime because G.S. 14-72 specifically provides that “the receiving of stolen goods knowing them to be stolen, of the value of not more than two hundred dollars (now $400), is hereby declared a misdemeanor.” State v. Wallace, 270 N.C. 155 , 153 S.E.2d 873, 1967 N.C. LEXIS 1318 (1967).

III.Lesser Offenses

Receiving stolen goods is not a lesser included offense of larceny, and jeopardy has not attached as to a proper larceny indictment. State v. Burnette, 22 N.C. App. 29, 205 S.E.2d 357, 1974 N.C. App. LEXIS 2224 (1974).

The crimes of larceny and receiving stolen goods, knowing them to have been stolen, are separate offenses and not degrees of the same offense. State v. Prince, 39 N.C. App. 685, 251 S.E.2d 631, 1979 N.C. App. LEXIS 2559 , cert. denied, 296 N.C. 739 , 254 S.E.2d 180, 1979 N.C. LEXIS 1292 (1979).

Or of Breaking and Entering. —

Receiving stolen goods is not a lesser included offense of breaking and entering but a separate and distinct offense. State v. Miller, 18 N.C. App. 489, 197 S.E.2d 46, 1973 N.C. App. LEXIS 1915 , cert. denied, 283 N.C. 757 , 198 S.E.2d 727, 1973 N.C. LEXIS 1090 (1973).

Receiving or Transferring Stolen Vehicle Is Separate Offense. —

The two offenses under G.S. 20-106 and this section are separate offenses. The latter is not a lesser included offense under the former. State v. Carlin, 37 N.C. App. 228, 245 S.E.2d 586, 1978 N.C. App. LEXIS 2692 (1978).

Possessing stolen property in violation of G.S. 14-71.1 is not a lesser included offense of receiving stolen property in violation of this section. State v. Davis, 302 N.C. 370 , 275 S.E.2d 491, 1981 N.C. LEXIS 1059 (1981).

The unlawful receipt of stolen property is a single, specific act occurring at a specific time; possession, however, is a continuing offense beginning at the time of receipt and continuing until divestment; therefore, the legislature intended possession and receiving of stolen goods to be distinct, separate crimes of equal degree rather than the former to be a lesser included offense of the latter. State v. Davis, 302 N.C. 370 , 275 S.E.2d 491, 1981 N.C. LEXIS 1059 (1981); State v. Andrews, 52 N.C. App. 26, 277 S.E.2d 857, 1981 N.C. App. LEXIS 2318 (1981), aff'd in part and rev'd in part, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 (1982).

IV.Practice and Procedure
A.Venue

Section Supersedes General Venue Provisions. —

For purposes of determining venue for the offense of feloniously receiving stolen property, this section supersedes the general venue provisions. State v. Gardner, 84 N.C. App. 616, 353 S.E.2d 662, 1987 N.C. App. LEXIS 2537 , aff'd, 320 N.C. 789 , 360 S.E.2d 695, 1987 N.C. LEXIS 2410 (1987).

County Where Defendant in Possession. —

Under this section, venue is proper in any county in which a defendant was in possession of the stolen goods. State v. Haywood, 297 N.C. 686 , 256 S.E.2d 715, 1979 N.C. LEXIS 1272 (1979).

County Where Thief May Be Tried. —

The legislature has empowered grand juries to indict persons for receiving stolen goods in any county in which the thief may be tried. State v. Gardner, 84 N.C. App. 616, 353 S.E.2d 662, 1987 N.C. App. LEXIS 2537 , aff'd, 320 N.C. 789 , 360 S.E.2d 695, 1987 N.C. LEXIS 2410 (1987).

B.Indictment

The words “receive” and “possess” are material words which must be used in indictments to distinguish between the two offenses of receiving stolen goods under this section and possessing stolen goods under G.S. 14-71.1 . State v. Blythe, 85 N.C. App. 341, 354 S.E.2d 889, 1987 N.C. App. LEXIS 2595 (1987).

Defendant cannot be convicted of possession of stolen goods on an indictment charging him with receiving stolen goods. State v. Blythe, 85 N.C. App. 341, 354 S.E.2d 889, 1987 N.C. App. LEXIS 2595 (1987).

Indictment Need Not Name Owner of Property. —

It is not necessary that the warrant or indictment in a prosecution for receiving stolen goods state the names of those from whom the goods were stolen. State v. Truesdale, 13 N.C. App. 622, 186 S.E.2d 604, 1972 N.C. App. LEXIS 2293 (1972); State v. Golden, 20 N.C. App. 451, 201 S.E.2d 546, 1974 N.C. App. LEXIS 2463 , cert. denied, 285 N.C. 88 , 203 S.E.2d 60, 1974 N.C. LEXIS 920 (1974).

Amendment of Indictment. —

The court did not err in allowing the State’s motion to amend warrants for receiving stolen goods since the original warrants charged all the essential elements of the offense of receiving stolen goods, and the amendment describing ownership of the property in more detail did not change the offense with which defendants were charged. State v. Truesdale, 13 N.C. App. 622, 186 S.E.2d 604, 1972 N.C. App. LEXIS 2293 (1972).

Sufficiency of Indictment. —

The indictment was held sufficient in Doss v. North Carolina, 252 F. Supp. 298, 1966 U.S. Dist. LEXIS 7799 (M.D.N.C. 1966); State v. Matthews, 267 N.C. 244 , 148 S.E.2d 38, 1966 N.C. LEXIS 1019 (1966).

Variance Not Fatal. —

The location of the receipt of stolen goods is not an element of the offense and as such, a variance between the allegations in the indictment and proof at trial will not be fatal. State v. Gardner, 84 N.C. App. 616, 353 S.E.2d 662, 1987 N.C. App. LEXIS 2537 , aff'd, 320 N.C. 789 , 360 S.E.2d 695, 1987 N.C. LEXIS 2410 (1987).

Fatal Variance. —

Where an indictment sufficiently alleged feloniously receiving stolen goods knowing them to have been stolen (taken by common-law larceny) in violation of this section, but the State’s evidence tended to show that defendant received property which was taken by a shop foreman, in violation of the felony statute, G.S. 14-74 , there was a fatal variance in the charge and the proof, a failure by the State to show that the goods were stolen. State v. Babb, 34 N.C. App. 336, 238 S.E.2d 308, 1977 N.C. App. LEXIS 1693 (1977).

C.Presumption from Recent Possession of Stolen Goods

Presumption from Recent Possession of Stolen Property Does Not Apply. —

The inference or presumption arising from the recent possession of stolen property, without more, does not extend to the charge of this section of receiving said property knowing it to have been feloniously stolen or taken. State v. Best, 202 N.C. 9 , 161 S.E. 535, 1931 N.C. LEXIS 158 (1931); State v. Lowe, 204 N.C. 572 , 169 S.E. 180, 1933 N.C. LEXIS 200 (1933); State v. Yow, 227 N.C. 585 , 42 S.E.2d 661, 1947 N.C. LEXIS 462 (1947); State v. Hoskins, 236 N.C. 412 , 72 S.E.2d 876, 1952 N.C. LEXIS 573 (1952); State v. Neill, 244 N.C. 252 , 93 S.E.2d 155, 1956 N.C. LEXIS 398 (1956); State v. Muse, 280 N.C. 31 , 185 S.E.2d 214, 1971 N.C. LEXIS 1088 (1971), cert. denied, 406 U.S. 974, 92 S. Ct. 2409, 32 L. Ed. 2d 674, 1972 U.S. LEXIS 2400 (1972); State v. St. Clair, 17 N.C. App. 22, 193 S.E.2d 404, 1972 N.C. App. LEXIS 1553 (1972).

Recent possession of stolen property, without more, raises no presumption in a prosecution for receiving stolen goods with knowledge that they had been feloniously stolen, and an instruction that recent possession raised no presumption of guilt but raised a presumption of fact to be considered by the jury in passing upon the guilt or innocence of defendant, must be held for reversible error. State v. Larkin, 229 N.C. 126 , 47 S.E.2d 697, 1948 N.C. LEXIS 419 (1948).

D.Evidence

Testimony of Owner on Value Admissible. —

In a prosecution for receiving stolen goods, the owner who has knowledge of value gained from experience, information and observation, may give his opinion of the value of personal property; however, the approved procedure requires that he first be qualified to give the evidence. State v. Whitaker, 40 N.C. App. 251, 252 S.E.2d 242, 1979 N.C. App. LEXIS 2604 (1979).

Failure to Prove Ownership of Property. —

In a prosecution under this section where there was no evidence on the record tending to show that the property alleged to have been stolen was that of the owner named in the indictment, the defendant’s motion for dismissal or nonsuit should be allowed. State v. Pugh, 196 N.C. 725 , 147 S.E. 7, 1929 N.C. LEXIS 88 (1929).

Evidence held sufficient to go to jury upon charge of receiving stolen property with knowledge that it had been feloniously stolen. State v. Larkin, 229 N.C. 126 , 47 S.E.2d 697, 1948 N.C. LEXIS 419 (1948); State v. Chambers, 239 N.C. 114 , 79 S.E.2d 262, 1953 N.C. LEXIS 374 (1953); State v. Lash, 21 N.C. App. 365, 204 S.E.2d 563, 1974 N.C. App. LEXIS 1806 , cert. denied, 285 N.C. 593 , 206 S.E.2d 865, 1974 N.C. LEXIS 1043 (1974).

Evidence of receiving stolen goods held amply sufficient to overrule motion for nonsuit. State v. Myers, 240 N.C. 462 , 82 S.E.2d 213, 1954 N.C. LEXIS 439 (1954).

Upon appeal from a conviction under an indictment for feloniously receiving property of a value of $602, knowing it to have been feloniously stolen, it was held that, considering the evidence in the light most favorable to the State, it was amply sufficient to carry the State’s case to the jury, and to support the verdict, and defendant’s motions for judgment of compulsory nonsuit were properly overruled by the trial judge. State v. Matthews, 267 N.C. 244 , 148 S.E.2d 38, 1966 N.C. LEXIS 1019 (1966).

Evidence Held Insufficient. —

See State v. Hoskins, 236 N.C. 412 , 72 S.E.2d 876, 1952 N.C. LEXIS 573 (1952).

There was no evidence to support the verdict, and the defendant’s motion for nonsuit on the charge of feloniously receiving stolen goods should have been allowed, where all the evidence, including the defendant’s possession of the goods soon after they were stolen, tended to show that the defendant, and no one else, was the thief. State v. Prince, 39 N.C. App. 685, 251 S.E.2d 631, 1979 N.C. App. LEXIS 2559 , cert. denied, 296 N.C. 739 , 254 S.E.2d 180, 1979 N.C. LEXIS 1292 (1979).

E.Instructions

Failure to Instruct on Felonious Intent. —

Where the indictment charges the defendant with “feloniously” receiving stolen goods, knowing them to have been stolen, but the charge fails to instruct the jury that it must find that the receiving was with the felonious intent, this is error and entitles the defendant to a new trial. State v. Brady, 237 N.C. 675 , 75 S.E.2d 791, 1953 N.C. LEXIS 706 (1953).

Instructions Held Sufficient. —

Where the trial judge clearly charged the jury in substance that if it found beyond a reasonable doubt from the evidence that defendant was guilty of receiving stolen property (certain guns), knowing it to have been stolen, as he had defined the offense for it, and found beyond a reasonable doubt that the guns were of a value of $600, then it would return a verdict of guilty as charged, but if under those circumstances it found the guns were of a value of $200 or less (now $400 or less), then it would return a verdict of guilty of receiving stolen goods, knowing them to have been stolen, of a value of $200 or less (now $400 or less), a misdemeanor, this conforms to the decision in State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91 (1962). State v. Matthews, 267 N.C. 244 , 148 S.E.2d 38, 1966 N.C. LEXIS 1019 (1966).

Where the judge charged the jury: “Now, the offense charged here has at least four distinct elements that the State must satisfy you beyond a reasonable doubt about,” and the court then instructed the jury as to the essential elements of the crime of receiving stolen goods, quoting from 1 Wharton’s Criminal Evidence, 10th Ed., G.S. 325b, p. 643, with the exception that Wharton states there are three elements, and the second element is “. . . (b) that the accused, knowing them to be stolen, received or aided in concealing the goods,” and the trial judge charged: “ . . . second, that the defendant received the goods that were stolen; third, that at the time of receiving the goods the defendant knew that they had been stolen,” an assignment of error to the charge was overruled. State v. Matthews, 267 N.C. 244 , 148 S.E.2d 38, 1966 N.C. LEXIS 1019 (1966).

Instruction Where Presumption as to Recently Stolen Goods Not Relied Upon. —

Where the State in a prosecution for receiving stolen goods did not rely upon the presumption arising from the possession of recently stolen goods, the trial court was not required to charge that the jury must find that the goods allegedly received by defendant were the same goods that were stolen. State v. Muse, 280 N.C. 31 , 185 S.E.2d 214, 1971 N.C. LEXIS 1088 (1971), cert. denied, 406 U.S. 974, 92 S. Ct. 2409, 32 L. Ed. 2d 674, 1972 U.S. LEXIS 2400 (1972).

Failure to Instruct as to Stealing of Goods by One Other Than Accused. —

An essential element of the crime of receiving stolen goods in violation of this section is the stealing of the goods by someone other than the accused. Therefore, failure to properly instruct the jury with regard to this element would constitute reversible error requiring a new trial. State v. Slate, 38 N.C. App. 209, 247 S.E.2d 430, 1978 N.C. App. LEXIS 2130 (1978).

Instruction Defining Intent. —

A charge to the jury in a prosecution for felonious receiving of stolen property defining the necessary intent as the intent to convert property to the defendant’s own use or deprive the owner of its use permanently was correct and sufficient. State v. Laughinghouse, 39 N.C. App. 655, 251 S.E.2d 667, 1979 N.C. App. LEXIS 2534 (1979).

Reasonableness of Defendant’s Belief Under Circumstances. —

In a prosecution for feloniously receiving stolen goods, where the trial court instructed the jury that they should return a verdict of guilty if they found from the evidence beyond a reasonable doubt that the defendant, with a dishonest purpose, received goods which he knew “or had reasonable grounds to believe” someone had stolen, it was not error for the court to fail to go further and charge the jury that they should judge the reasonableness of defendant’s belief from the circumstances as they appeared to him at the time he received the stolen goods. State v. Lovick, 42 N.C. App. 577, 257 S.E.2d 146, 1979 N.C. App. LEXIS 2844 (1979).

F.Verdict and Sentence

Verdict Need Not Specify Value of Goods. —

In a prosecution under this section, it is not required that the jury should determine the value of the goods in its verdict. State v. Morrison, 207 N.C. 804 , 178 S.E. 562, 1935 N.C. LEXIS 275 (1935); State v. Hill, 237 N.C. 764 , 75 S.E.2d 915, 1953 N.C. LEXIS 715 (1953).

Defective Verdict. —

Where the verdict in an indictment under this section is “guilty of receiving stolen goods,” it is defective as not being responsive to the charge or falling within the requirements of the statute to constitute the offense made in the indictment, and thereon a judgment may not be entered or a sentence imposed. State v. Shaw, 194 N.C. 690 , 140 S.E. 621, 1927 N.C. LEXIS 180 (1927); State v. Cannon, 218 N.C. 466 , 11 S.E.2d 301, 1940 N.C. LEXIS 15 (1940).

A judgment upon a general verdict of guilty upon an indictment containing two counts — one for horse stealing, under G.S. 14-81 , and the other for receiving, under this section, is erroneous — the offenses not being of the same grade and the punishment being different. State v. Goings, 98 N.C. 766 , 4 S.E. 121, 1887 N.C. LEXIS 369 (1887).

Failure to Charge and Find Guilty Knowledge. —

Where the evidence is conflicting as to whether the defendant knew at the time of receiving goods that they were stolen, and the charge of the court fails to instruct that finding of such knowledge was necessary for conviction, the verdict of guilty without finding that the defendant possessed such knowledge at the time he received the goods is defective, and a venire de novo will be ordered on appeal. State v. Barbee, 197 N.C. 248 , 148 S.E. 249, 1929 N.C. LEXIS 205 (1929).

Conviction of Larceny Is Tantamount to Acquittal on Charge of Receiving. —

Upon an indictment for larceny and for receiving property, knowing the same to have been stolen, a verdict of guilty of larceny is tantamount to an acquittal on the charge of receiving. State v. Holbrook, 223 N.C. 622 , 27 S.E.2d 725, 1943 N.C. LEXIS 334 (1943).

When Acquittal of Larceny Bars Prosecution for Receiving. —

Defendants acquitted of larceny, despite evidence that they had stolen the items, could not, over their motion for nonsuit, be convicted of receiving stolen goods, where no evidence indicated that others might have stolen the items and then transferred them to defendants. State v. Strickland, 20 N.C. App. 470, 201 S.E.2d 501, 1974 N.C. App. LEXIS 2470 (1974).

Sentence. —

An exception to a judgment of imprisonment in the State’s prison for a term of three years, pronounced against a defendant upon a verdict of guilty of receiving stolen goods, knowing them to be stolen, was untenable, in that the judgment was within this section. State v. Reddick, 222 N.C. 520 , 23 S.E.2d 909, 1943 N.C. LEXIS 361 (1943).

§ 14-71.1. Possessing stolen goods.

If any person shall possess any chattel, property, money, valuable security or other thing whatsoever, the stealing or taking whereof amounts to larceny or a felony, either at common law or by virtue of any statute made or hereafter to be made, such person knowing or having reasonable grounds to believe the same to have been feloniously stolen or taken, he shall be guilty of a Class H felony, and may be indicted and convicted, whether the felon stealing and taking such chattels, property, money, valuable security or other thing shall or shall not have been previously convicted, or shall or shall not be amenable to justice; and any such possessor may be dealt with, indicted, tried and punished in any county in which he shall have, or shall have had, any such property in his possession or in any county in which the thief may be tried, in the same manner as such possessor may be dealt with, indicted, tried and punished in the county where he actually possessed such chattel, money, security, or other thing; and such possessor shall be punished as one convicted of larceny.

History. 1977, c. 978, s. 1; 1993, c. 539, s. 1165; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For survey of 1981 law on criminal procedure, see 60 N.C.L. Rev. 1302 (1982).

CASE NOTES

Analysis

I.In General.

Possession of stolen goods is a statutory crime created by the legislature and is of recent vintage. State v. Taylor, 64 N.C. App. 165, 307 S.E.2d 173, 1983 N.C. App. LEXIS 3254 (1983), aff'd in part and rev'd in part, 311 N.C. 380 , 317 S.E.2d 369, 1984 N.C. LEXIS 1741 (1984).

Purpose. —

This section was apparently passed to provide protection for society in those incidents where the State does not have sufficient evidence to prove who committed the larceny, or the elements of receiving. State v. Kelly, 39 N.C. App. 246, 249 S.E.2d 832, 1978 N.C. App. LEXIS 2369 (1978); State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

The legislature’s intent was to provide for the State a position to which to recede when it cannot establish the elements of breaking and entering or larceny but can effect proof of possession of the stolen goods. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

The legislative purpose set forth with regard to this section is to provide protection for society in those incidents where the State does not have sufficient evidence to prove who committed the larceny, or the elements of receiving. State v. Perry, 52 N.C. App. 48, 278 S.E.2d 273, 1981 N.C. App. LEXIS 2324 (1981), aff'd in part, modified, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982); State v. Taylor, 64 N.C. App. 165, 307 S.E.2d 173, 1983 N.C. App. LEXIS 3254 (1983), aff'd in part and rev'd in part, 311 N.C. 380 , 317 S.E.2d 369, 1984 N.C. LEXIS 1741 (1984).

This section is useful where the State has no evidence as to who committed the larceny and has, by the passage of time, lost the probative benefit of the doctrine of possession of recently stolen property. State v. Perry, 52 N.C. App. 48, 278 S.E.2d 273, 1981 N.C. App. LEXIS 2324 (1981), aff'd in part, modified, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982).

The possession statutes were enacted to plug a loophole in the law as it then existed when one was found in possession of stolen goods and the State was unable to prove either the larceny or receiving. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

This section was designed to extend society’s protection against theft by allowing prosecution where the State could not prove who committed the larceny and could not prove the elements of receiving stolen goods. However, this does not mean that where the evidence established who committed the larceny, the defendant could not be charged with possession. State v. Maynard, 65 N.C. App. 612, 309 S.E.2d 581, 1983 N.C. App. LEXIS 3547 (1983).

A fair and reasonable reading of this section together with G.S. 14-72 leads inescapably to the conclusion that the General Assembly intended to make the possession of any stolen firearm, by anyone knowing or having reasonable grounds to believe the firearm to be stolen, a felony, regardless of the value of the firearm. State v. Taylor, 311 N.C. 380 , 317 S.E.2d 369, 1984 N.C. LEXIS 1741 (1984).

This section was enacted to protect the State in cases when, at trial, it could not establish the elements of larceny or breaking and entering but could prove the defendant’s possession of the stolen property. State v. Brown, 85 N.C. App. 583, 355 S.E.2d 225, 1987 N.C. App. LEXIS 2621 , writ denied, 320 N.C. 172 , 358 S.E.2d 56, 1987 N.C. LEXIS 2202 (1987).

Possession is a sort of secondary crime based upon a prior commission of the primary crime of larceny. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

The words “dishonest purpose” do not appear in this section and thus are not considered “material words of the statute” which must be used in an indictment thereunder. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).

“Reasonable Man Standard” Applies. —

Since this section includes language concerning a defendant’s reasonable grounds to believe that property was stolen, it is obvious that the legislature also intended for the “reasonable man standard” to apply to the offense of possession of stolen property. State v. Parker, 316 N.C. 295 , 341 S.E.2d 555, 1986 N.C. LEXIS 2129 (1986).

The fact that a defendant is willing to sell property for a fraction of its value is sufficient to give rise to an inference that he knew, or had reasonable grounds to believe, that the property was stolen. State v. Brown, 85 N.C. App. 583, 355 S.E.2d 225, 1987 N.C. App. LEXIS 2621 , writ denied, 320 N.C. 172 , 358 S.E.2d 56, 1987 N.C. LEXIS 2202 (1987).

Larceny and possession of property stolen in the larceny are separate crimes. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

And Legislature Did Not Intend Punishment for Both Receiving and Possession. —

While receiving and possession are distinct and separate crimes for which the legislature could have provided punishment for the same individual, this was not intended by the enactment of the possession statutes. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

The words “receive” and “possess” are material words which must be used in indictments to distinguish between the two offenses of receiving stolen goods under G.S. 14-71 and possessing stolen goods under this section. State v. Blythe, 85 N.C. App. 341, 354 S.E.2d 889, 1987 N.C. App. LEXIS 2595 (1987).

Use of the word “have” in indictments was not sufficient to charge defendants with possession of stolen goods in violation of this section. State v. Blythe, 85 N.C. App. 341, 354 S.E.2d 889, 1987 N.C. App. LEXIS 2595 (1987).

Jurisdiction and Venue. —

While the legislature did not intend to convict and punish a defendant for both larceny and possession of stolen property, it did intend to allow indictment and trial on both charges. This section thus confers jurisdiction and venue on the county where defendant possessed the property or where it was stolen. State v. Brown, 85 N.C. App. 583, 355 S.E.2d 225, 1987 N.C. App. LEXIS 2621 , writ denied, 320 N.C. 172 , 358 S.E.2d 56, 1987 N.C. LEXIS 2202 (1987).

Defendant Held Not Unconstitutionally Subjected to Multiple Punishments for the Same Crime. —

In prosecution for six counts of felonious possession of stolen property and two counts of misdemeanor possession of stolen property, the defendant was not unconstitutionally subjected to multiple punishments for the same crime, where each separate count of which defendant was convicted grew out of a possession begun at different times of receipt following break-ins over a six-week period; this section individuates crimes of possession by the time at which the stolen goods came into the criminal’s possession rather than homogenizing all simultaneously possessed stolen items into one possessor offense. State v. White, 322 N.C. 770 , 370 S.E.2d 390, 1988 N.C. LEXIS 487 , cert. denied, 488 U.S. 958, 109 S. Ct. 399, 102 L. Ed. 2d 387, 1988 U.S. LEXIS 5121 (1988).

II.Elements of Offense.

Elements of Felonious Possession of Stolen Property. —

The essential elements of feloniously possessing stolen property are (1) possession of personal property, (2) valued at more than $400.00, (3) which has been stolen, (4) the possessor knowing or having reasonable grounds to believe the property to have been stolen, and (5) the possessor acting with a dishonest purpose. State v. Davis, 302 N.C. 370 , 275 S.E.2d 491, 1981 N.C. LEXIS 1059 (1981); In re Dulaney, 74 N.C. App. 587, 328 S.E.2d 904, 1985 N.C. App. LEXIS 3523 (1985); State v. Parker, 76 N.C. App. 508, 333 S.E.2d 551, 1985 N.C. App. LEXIS 3887 (1985), aff'd in part and rev'd in part, 316 N.C. 295 , 341 S.E.2d 555, 1986 N.C. LEXIS 2129 (1986); State v. Bartlett, 77 N.C. App. 747, 336 S.E.2d 100, 1985 N.C. App. LEXIS 4393 (1985); State v. Parker, 316 N.C. 295 , 341 S.E.2d 555, 1986 N.C. LEXIS 2129 (1986); State v. Brown, 85 N.C. App. 583, 355 S.E.2d 225, 1987 N.C. App. LEXIS 2621 , writ denied, 320 N.C. 172 , 358 S.E.2d 56, 1987 N.C. LEXIS 2202 (1987).

The essential elements which must be proved under this section and G.S. 14-72 on a charge of felonious possession of stolen property are: (1) possession of personal property; (2) having a value in excess of $400.00; (3) which has been stolen; (4) the possessor knowing or having reasonable grounds to believe the property was stolen; and (5) the possessor acting with a dishonest purpose. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).

Defendant charged with possession of stolen property under this section or possession of a stolen vehicle under G.S. 20-106 could be convicted if the State produced sufficient evidence that defendant possessed stolen property (i.e. a vehicle), which he knew or had reason to believe had been stolen or taken. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683, 2003 N.C. App. LEXIS 377 (2003).

Respondent, a juvenile, was erroneously found delinquent for the felonious possession of his mother’s stolen car; he should have been adjudicated delinquent for misdemeanor possession of stolen goods. The State did not introduce evidence of the car’s condition or its value; thus, the State did not satisfy G.S. 14-71.1 , which required a stolen item to have a value of more than $1,000. In re J.H., 177 N.C. App. 776, 630 S.E.2d 457, 2006 N.C. App. LEXIS 1223 , aff'd, 361 N.C. 110 , 637 S.E.2d 538, 2006 N.C. LEXIS 1291 (2006).

The name of the person from whom goods were stolen is not an essential element of an indictment alleging possession of stolen goods, nor is a variance between the indictment’s allegations of ownership of the property and the proof of ownership fatal. State v. Medlin, 86 N.C. App. 114, 357 S.E.2d 174, 1987 N.C. App. LEXIS 2691 (1987).

Value of Goods Possessed Must Exceed $400 at Some Point in Time. —

The element of felonious possession requiring the property to be valued at more than $400 implicitly includes the requirement that there be at least one single point in time when the defendant possessed an amount of goods valued at more than $400. State v. Watson, 80 N.C. App. 103, 341 S.E.2d 366, 1986 N.C. App. LEXIS 2156 (1986).

Elements. —

Defendant charged with possession of stolen property under G.S. 14-71.1 or possession of a stolen vehicle under G.S. 20-106 could be convicted if the State produced sufficient evidence that defendant possessed stolen property (i.e. a vehicle), which he knew or had reason to believe had been stolen or taken. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683, 2003 N.C. App. LEXIS 377 (2003).

III.Application.

State Does Not Have to Prove Who Committed the Larceny. —

To require the State to prove who committed the larceny as an element of this offense would defeat the obvious intent of the legislature. On a charge of possession of stolen property, it is not necessary that the State prove someone other than the defendant stole the property. State v. Kelly, 39 N.C. App. 246, 249 S.E.2d 832, 1978 N.C. App. LEXIS 2369 (1978).

The essential elements of possession of stolen property are: (1) possession of personal property; (2) which has been stolen; (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen; and (4) the possessor acting with a dishonest purpose. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

“Dishonest purpose” element of the crime of possession of stolen property can be met by a showing that the possessor acted with an intent to aid the thief, receiver, or possessor of stolen property. The fact that the defendant does not intend to profit personally by his action is immaterial. It is sufficient if he intends to assist another wrongdoer in permanently depriving the true owner of his property. State v. Parker, 316 N.C. 295 , 341 S.E.2d 555, 1986 N.C. LEXIS 2129 (1986).

Possession of stolen property is a continuing offense, beginning at the time of receipt, and ending at the time of divestment. State v. Bartlett, 77 N.C. App. 747, 336 S.E.2d 100, 1985 N.C. App. LEXIS 4393 (1985); State v. Watson, 80 N.C. App. 103, 341 S.E.2d 366, 1986 N.C. App. LEXIS 2156 (1986); State v. White, 87 N.C. App. 311, 361 S.E.2d 301, 1987 N.C. App. LEXIS 3207 (1987), aff'd in part and rev'd in part, 322 N.C. 770 , 370 S.E.2d 390, 1988 N.C. LEXIS 487 (1988).

Separate Offenses Shown. —

Where the evidence showed that defendant burglarized several different residences over a three-month period and kept the stolen property until it was seized by police, his acts constituted separate offenses of possession of stolen property beginning on the dates he stole the property. State v. White, 87 N.C. App. 311, 361 S.E.2d 301, 1987 N.C. App. LEXIS 3207 (1987), aff'd in part and rev'd in part, 322 N.C. 770 , 370 S.E.2d 390, 1988 N.C. LEXIS 487 (1988).

Separate Offenses Not Shown. —

Trial court erred by sentencing defendant on five, rather than one, counts of felony possession of stolen goods, as defendant and his companions stole five all-terrain vehicles (ATVs) from the same victim during one break-in, occurring on the same night, and there was no interruption in the events once the transaction began such that defendant was divested of possession and then came back into possession; the ATVs were stolen at approximately the same time, and defendant’s actions were part of a single, continuous transaction. State v. Phillips, 172 N.C. App. 143, 615 S.E.2d 880, 2005 N.C. App. LEXIS 1426 (2005).

While defendant possessed two separate stolen firearms, defendant could not be convicted on separate counts for each firearm possessed under G.S. 14-71.1 ; the Boykin interpretation of the North Carolina legislature’s intent in G.S. 14-72(b)(4) applied to G.S. 14-71.1 . State v. Surrett, 217 N.C. App. 89, 719 S.E.2d 120, 2011 N.C. App. LEXIS 2345 (2011).

Lesser Included Offenses. —

Defendant was entitled to an instruction on the misdemeanor charge of possession of stolen goods, where evidence was presented that she possessed personal property with a value of less than $1,000, as she took a total amount of $14,800 over a period of two months, but never possessed more than $1,000 at one time. State v. Brantley, 129 N.C. App. 725, 501 S.E.2d 676, 1998 N.C. App. LEXIS 765 (1998).

One has possession of stolen property when one has both the power and intent to control its disposition or use. In re Dulaney, 74 N.C. App. 587, 328 S.E.2d 904, 1985 N.C. App. LEXIS 3523 (1985).

There may be joint possession of stolen goods by two or more persons if they are shown to have acted in concert. State v. Bartlett, 77 N.C. App. 747, 336 S.E.2d 100, 1985 N.C. App. LEXIS 4393 (1985).

Charging of Other Offenses as to Same Property. —

Although possession is a charge for the State to fall back on when lacking evidence of other offenses, a defendant may be indicted and tried for larceny, receiving, and possession of the same property as long as he is punished for only one of those offenses. State v. Maynard, 65 N.C. App. 612, 309 S.E.2d 581, 1983 N.C. App. LEXIS 3547 (1983).

Defendant’s conviction and sentencing for possession of a stolen vehicle, in violation of G.S. 20-106 , and possession of stolen property, in violation of this section, for possession of the vehicle, violated double jeopardy because the legislature did not intend to punish a defendant for possession of the same property twice. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683, 2003 N.C. App. LEXIS 377 (2003).

Defendant Can Be Convicted of Possessing Property Which He Has Stolen. —

While it is true that a defendant cannot be convicted of receiving stolen property which he has stolen himself, such is not the case in a charge of possession of stolen property. State v. Kelly, 39 N.C. App. 246, 249 S.E.2d 832, 1978 N.C. App. LEXIS 2369 (1978).

Similarly, Receiving and Possession of Same Stolen Property are Separate Crimes. —

The unlawful receipt of stolen property is a single, specific act occurring at a specific time; possession, however, is a continuing offense beginning at the time of receipt and continuing until divestment; therefore, the legislature intended possession and receiving of stolen goods to be distinct, separate crimes of equal degree rather than the former to be a lesser included offense of the latter. State v. Davis, 302 N.C. 370 , 275 S.E.2d 491, 1981 N.C. LEXIS 1059 (1981); State v. Andrews, 52 N.C. App. 26, 277 S.E.2d 857, 1981 N.C. App. LEXIS 2318 (1981), aff'd in part and rev'd in part, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 (1982).

Possessing stolen property in violation of this section is not a lesser included offense of receiving stolen property in violation of G.S. 14-71 . State v. Davis, 302 N.C. 370 , 275 S.E.2d 491, 1981 N.C. LEXIS 1059 (1981).

Possession of stolen goods is not a lesser included offense of receiving stolen goods because the elements of receiving and possessing involved separate and distinct acts, the one not present in the other. State v. Taylor, 64 N.C. App. 165, 307 S.E.2d 173, 1983 N.C. App. LEXIS 3254 (1983), aff'd in part and rev'd in part, 311 N.C. 380 , 317 S.E.2d 369, 1984 N.C. LEXIS 1741 (1984).

Receiving stolen goods and possession of stolen goods are separate and independent statutory offenses under G.S. 14-71 and this section, neither of which is a lesser-included offense of the other. State v. Blythe, 85 N.C. App. 341, 354 S.E.2d 889, 1987 N.C. App. LEXIS 2595 (1987).

Thus, Conviction May Be of Only One of Offenses of Larceny, Receipt, or Possession. —

Although a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he may be convicted of only one of those offenses. State v. Andrews, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 , cert. denied, 459 U.S. 946, 103 S. Ct. 263, 74 L. Ed. 2d 205, 1982 U.S. LEXIS 4028 (1982).

A defendant may not be convicted and punished for both receiving and possession of the same stolen property. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

Defendant cannot be convicted of possession of stolen goods on an indictment charging him with receiving stolen goods. State v. Blythe, 85 N.C. App. 341, 354 S.E.2d 889, 1987 N.C. App. LEXIS 2595 (1987).

Trial judge did not err in denying defendant’s motion to dismiss the charges of first degree burglary, felonious larceny, and felonious possession of stolen goods; the presence of defendant’s fingerprints on both sides of a window to a room in which there was no apparent reason for his presence and from which a television had recently been taken, was evidence sufficient to support a conclusion with respect to the charges against the defendant. State v. Williams, 95 N.C. App. 627, 383 S.E.2d 456, 1989 N.C. App. LEXIS 812 (1989).

Instruction on Dishonest Purpose. —

Instruction that possessing stolen property for the purpose of selling it and keeping the proceeds would be a dishonest purpose did not relieve the State of its burden of showing that defendant acted with a dishonest purpose, and thus was not an improper peremptory instruction on the question of intent. State v. Brown, 85 N.C. App. 583, 355 S.E.2d 225, 1987 N.C. App. LEXIS 2621 , writ denied, 320 N.C. 172 , 358 S.E.2d 56, 1987 N.C. LEXIS 2202 (1987).

Evidence Held Sufficient. —

Evidence held sufficient to establish that saws seen in defendant’s possession were stolen, and to permit the question of defendant’s knowledge that the property was stolen to go to the jury. State v. Brown, 85 N.C. App. 583, 355 S.E.2d 225, 1987 N.C. App. LEXIS 2621 , writ denied, 320 N.C. 172 , 358 S.E.2d 56, 1987 N.C. LEXIS 2202 (1987).

Where the State presented the evidence of the property recovered from defendant’s home and the testimony of the break-in victims identifying the stolen property taken from their residences, a co-defendant testified that he and defendant had together committed six to eight of the area break-ins, and defendant admitted that he took the stolen property in pawn, the evidence showed that defendant knew or had reasonable grounds to believe that the stolen property was stolen. State v. White, 322 N.C. 770 , 370 S.E.2d 390, 1988 N.C. LEXIS 487 , cert. denied, 488 U.S. 958, 109 S. Ct. 399, 102 L. Ed. 2d 387, 1988 U.S. LEXIS 5121 (1988).

Evidence held sufficient to sustain a conviction under this section. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).

The evidence was sufficient to support a finding that the defendant knew or had reasonable grounds to believe that the car he was in was stolen, where he was found asleep in the car, the car had a key in the ignition, the defendant lied to arresting officers about his name and falsely stated that the car belonged to a friend, and the car was strewn with items not belonging to the car’s owner. State v. Vaughn, 130 N.C. App. 456, 503 S.E.2d 110, 1998 N.C. App. LEXIS 940 (1998), aff'd, 350 N.C. 88 , 511 S.E.2d 638, 1999 N.C. LEXIS 41 (1999).

Evidence which showed that police stopped defendant while he was driving a vehicle that was reported stolen, that the vehicle was worth $1,995, and that the person who owned the vehicle and reported it stolen told a police officer that the vehicle defendant was driving was her vehicle was sufficient to sustain defendant’s conviction for feloniously possessing stolen property, and the trial court properly denied defendant’s motion to dismiss that charge. State v. Murray, 154 N.C. App. 631, 572 S.E.2d 845, 2002 N.C. App. LEXIS 1532 (2002), cert. denied, 357 N.C. 467 , 586 S.E.2d 778, 2003 N.C. LEXIS 967 (2003).

Evidence that defendant knew or had reason to know the car he was driving was stolen was sufficient as: (1) he was driving the car several hours after it was stolen; (2) he said the vehicle belonged to a “friend” whose name he would not give; (3) the car’s owner said he gave no one permission to drive it on the day in question; and (4) defendant had the owner’s keys. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683, 2003 N.C. App. LEXIS 377 (2003).

Evidence which showed that defendant approached a stolen car and placed his hand on the door handle and that the car was worth more than $1,000 was sufficient to sustain defendant’s conviction for felonious possession of stolen goods. State v. King, 158 N.C. App. 60, 580 S.E.2d 89, 2003 N.C. App. LEXIS 939 (2003).

Substantial evidence existed to show that respondent, a juvenile, had possession of his mother’s stolen car; the car was found in the driveway of a house in another city nine days after the car was stolen, respondent was found in the house, he had access to the car on the day that it was stolen, and he confessed to his mother that he had taken the car. In re J.H., 177 N.C. App. 776, 630 S.E.2d 457, 2006 N.C. App. LEXIS 1223 , aff'd, 361 N.C. 110 , 637 S.E.2d 538, 2006 N.C. LEXIS 1291 (2006).

There was insufficient evidence to support defendant’s conviction for possession of a stolen firearm even though an accomplice testified that defendant asked the accomplice to tell the officers a story about finding a bag of guns after a man threw it into the area near the apartment building, as: (1) defendant’s testimony exactly contradicted the accomplice’s testimony; (2) there was no evidence that defendant had any knowledge about from where the guns came, much less that one of the eight guns in the apartment was stolen; and (3) there was no evidence that defendant should have had reason to believe that one of the guns was stolen. State v. Brown, 182 N.C. App. 277, 641 S.E.2d 850, 2007 N.C. App. LEXIS 574 (2007).

There was sufficient evidence to support the denial of defendant’s motion to dismiss and the jury’s finding that defendant possessed stolen goods under G.S. 14-71.1 and burglary tools under G.S. 14-55 as: (1) the camera and camcorder were stolen and both items were identified at trial; (2) the items were seized from a trailer, and defendant claimed the items belonged to defendant; and (3) a break-in had occurred at the victim’s office, and that the tools found with the camera and camcorder in the trailer were consistent with the tools typically used to break and enter locked properties. State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250, 2007 N.C. App. LEXIS 1733 (2007).

Evidence was sufficient to support defendant’s possession of stolen property conviction because (1) the testimony showed that he had possession of the truck where the stolen tools were found for at least three days prior to being stopped by the police, (2) defendant testified that he did not trust the person who gave him the tools nor was he surprised that the tolls were stolen, and (3) that evidence was sufficient to allow the question of whether defendant knew or had reasonable grounds to believe that the tools were stolen to go to the jury. State v. Southards, 189 N.C. App. 152, 657 S.E.2d 419, 2008 N.C. App. LEXIS 403 (2008).

Trial court did not err in denying defendant’s motion to dismiss the charge of felonious possession of stolen property for insufficient evidence because the State’s evidence was sufficient to satisfy the $1,000 fair market value statutory minimum and to support a felonious possession of stolen goods conviction when the “reasonable selling price” of a DVD player at the time it was stolen, and in like-new condition, was over $1,300; the jury did not speculate as to the value of the DVD player but merely reached a different conclusion than that advanced by defendant because the jury could have reasonably concluded that the DVD player was worth $1,300 and was merely missing a necessary component. State v. Davis, 198 N.C. App. 146, 678 S.E.2d 709, 2009 N.C. App. LEXIS 1158 (2009).

Evidence was sufficient to support a jury’s verdict of guilty of felonious possession of stolen goods, as the jury could have found beyond a reasonable doubt that defendant knew the goods had been stolen based upon defendant’s own statements to a detective that the man who provided the stolen property to defendant had made a “score” from a barber shop. State v. Tanner, 364 N.C. 229 , 695 S.E.2d 97, 2010 N.C. LEXIS 423 (2010).

Because there was sufficient evidence that defendant knew or had reasonable grounds to believe that the items were stolen, the trial court did not err by denying defendant’s motion to dismiss the charges of possession of stolen property and obtaining property by false pretenses. State v. Jester, 249 N.C. App. 101, 790 S.E.2d 368, 2016 N.C. App. LEXIS 864 (2016).

Trial court did not err by denying defendant’s motion to dismiss the possession of stolen goods charges because sufficient evidence showed that he constructively possessed the firearms that were found in the van he was renting, even though he did not have exclusive possession of the van, as defendant had a nervous disposition, he admitted ownership of the basketball goal in proximity to the stolen firearms, he had rented the van, and he swiftly departed when the officers began search the van, leaving his personal property behind. State v. Rice, 252 N.C. App. 480, 798 S.E.2d 432, 2017 N.C. App. LEXIS 227 (2017).

Evidence Held Insufficient. —

In a proceeding in which juvenile was charged with being a delinquent child in that she unlawfully, willfully, and feloniously possessed a Volkswagon van, knowing and having reasonable grounds to believe it to have been feloniously stolen, evidence which tended to show that juvenile was a passenger in the stolen vehicle, having accepted a ride to Florida with some friends, and that at some point while en route she learned that the vehicle was stolen, was not sufficient to withstand a motion to dismiss, as there was no evidence linking juvenile to the theft or tending to show that she had control or could have exercised control over the vehicle. In re Dulaney, 74 N.C. App. 587, 328 S.E.2d 904, 1985 N.C. App. LEXIS 3523 (1985).

Defendant’s unexplained presence in a stolen vehicle, as a passenger, in such an intoxicated state that he had earlier passed out, was not sufficient to sustain a conviction for felonious possession of stolen property, where the State’s evidence was not sufficient to show that defendant had control or could have exercised control over the vehicle, and the evidence as to defendant’s knowledge that the vehicle was stolen was unclear. State v. Bartlett, 77 N.C. App. 747, 336 S.E.2d 100, 1985 N.C. App. LEXIS 4393 (1985).

Evidence held insufficient to establish felonious possession of stolen goods. State v. Allen, 79 N.C. App. 280, 339 S.E.2d 76, 1986 N.C. App. LEXIS 1990 , aff'd, 317 N.C. 329 , 344 S.E.2d 789, 1986 N.C. LEXIS 2792 (1986).

Since the State’s only evidence showing defendant knew that items he possessed were stolen was from the erroneous admission of a hearsay statement that violated defendant’s confrontation rights, the admission of that hearsay was not harmless error, and defendant was entitled to a new trial on charges of possession of stolen goods in violation of G.S. 14-17.1 . State v. Morton, 166 N.C. App. 477, 601 S.E.2d 873, 2004 N.C. App. LEXIS 1739 (2004).

Because substantial evidence of each element of an offense charged had to be shown to exist when a court ruled on a motion to dismiss, an adjudication finding that respondent, a juvenile, was delinquent for having the felonious possession of his mother’s stolen car had to be reversed; the State introduced substantial evidence that he had possession of the stolen car, but the State failed to introduce any evidence as to the car’s condition or that it was worth more than $1,000, as G.S. 14-71.1 required. Thus, a trial court erroneously denied respondent’s motion to dismiss the charge against him. In re J.H., 177 N.C. App. 776, 630 S.E.2d 457, 2006 N.C. App. LEXIS 1223 , aff'd, 361 N.C. 110 , 637 S.E.2d 538, 2006 N.C. LEXIS 1291 (2006).

Evidence was insufficient to support defendant’s conviction for possession of property stolen pursuant to a breaking or entering because the number and type of items found, the fact that the items were found in plain view, and the fact that defendant gave a false name when first questioned only raised a mere suspicion or conjecture that defendant possessed the requisite knowledge and were insufficient to prove knowledge. State v. Webb, 192 N.C. App. 719, 666 S.E.2d 212, 2008 N.C. App. LEXIS 1652 (2008).

Trial court erred in denying defendant’s motion to dismiss the charge of felony possession of stolen goods because the evidence was insufficient to establish that defendant knew or had reasonable grounds to believe the gun was stolen. State v. Wilson, 203 N.C. App. 547, 691 S.E.2d 734, 2010 N.C. App. LEXIS 643 (2010).

Trial court erred in denying defendant’s motion to dismiss the charge of felony possession of stolen goods, because the State’s evidence that the decals had been removed and another sticker attached fell well short of providing “substantial evidence” that defendant knew or should have known that the four-wheeler was stolen, as necessary to submit the charge to the jury. State v. Cannon, 216 N.C. App. 507, 721 S.E.2d 691, 2011 N.C. App. LEXIS 2292 (2011).

Evidence Supported Conviction for Misdemeanor, Not Felony. —

Conviction for felony possession of stolen goods was reduced to misdemeanor possession of stolen goods because there was no evidence of the value of the goods stolen. State v. Tanner, 193 N.C. App. 150, 666 S.E.2d 845, 2008 N.C. App. LEXIS 1759 (2008), rev'd, 364 N.C. 229 , 695 S.E.2d 97, 2010 N.C. LEXIS 423 (2010).

IV.Sentencing.

And Legislature May Constitutionally Punish a Defendant for Both. —

Nothing in the United States Constitution or in the Constitution of North Carolina prohibits the legislature from punishing a defendant for both larceny and possession of property stolen in the larceny. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

Nothing in the United States Constitution or in the Constitution of North Carolina prohibits the Legislature from punishing a defendant for both offenses of larceny and possession, since each crime requires proof of an additional fact which the other does not. State v. Andrews, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 , cert. denied, 459 U.S. 946, 103 S. Ct. 263, 74 L. Ed. 2d 205, 1982 U.S. LEXIS 4028 (1982).

But Legislature Did Not Intend to Punish Both Larceny and Possession. —

The legislature did not intend to punish an individual for larceny of property and the possession of the same property which he stole. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010); State v. Andrews, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 , cert. denied, 459 U.S. 946, 103 S. Ct. 263, 74 L. Ed. 2d 205, 1982 U.S. LEXIS 4028 (1982).

In enacting this section and G.S. 14-72 the legislature did not intend that an individual be punishable for possession of the same goods that he stole. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

Convictions for felonious possession of stolen property were arrested, as defendant could not be convicted of larceny and possession of the same stolen property. State v. Spencer, 187 N.C. App. 605, 654 S.E.2d 69, 2007 N.C. App. LEXIS 2555 (2007).

Nor May One Be Punished for Being Accessory to Both. —

The legislature did not intend that a defendant be punished for both larceny and possession of the same property. The same logic compels the holding that a defendant may not be punished for both accessory before the fact of larceny and possession. State v. Maynard, 65 N.C. App. 612, 309 S.E.2d 581, 1983 N.C. App. LEXIS 3547 (1983).

Conviction for Uncharged Offense Was Error. —

Trial court erred in entering judgment on the possession of stolen property related to the truck defendant was driving, as that was not an offense with which defendant was charged. State v. Marsh, 187 N.C. App. 235, 652 S.E.2d 744, 2007 N.C. App. LEXIS 2357 (2007), overruled in part, State v. Tanner, 364 N.C. 229 , 695 S.E.2d 97, 2010 N.C. LEXIS 423 (2010).

§ 14-71.2. Receiving or transferring stolen vehicles.

Any person who, with intent to procure or pass title to a vehicle which he knows or has reason to believe has been stolen or unlawfully taken, receives or transfers possession of the same from or to another, or who has in his possession any vehicle which he knows or has reason to believe has been stolen or unlawfully taken, and who is not an officer of the law engaged at the time in the performance of his duty as such officer shall be punished as a Class H felon.

History. 1937, c. 407, s. 70; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1252; 1994, Ex. Sess., c. 24, s. 14(c); 2019-186, s. 1(c).

Cross References.

As to seizure and forfeiture of conveyances used in committing a crime under this section, see G.S. 14-86.1 .

As to penalty for a felony violation of this Article, see G.S. 20-177 .

Editor’s Note.

This section is former G.S. 20-106 , as recodified by Session Laws 2019-186, s. 1(c), effective December 1, 2019, and applicable to offenses committed on or after that date. The historical citation from the former section has been added to this section as recodified.

Legal Periodicals.

For survey of 1976 case law on criminal law, see 55 N.C.L. Rev. 976 (1977).

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 20-106 .

Constitutionality. —

This section is constitutional. State v. Lockamy, 31 N.C. App. 713, 230 S.E.2d 565, 1976 N.C. App. LEXIS 2093 (1976).

The language “or has reason to believe has been stolen or unlawfully taken” does not create a matter of conjecture as to what is prohibited and is not unconstitutionally vague so as to deprive the defendant of due process of law. State v. Rook, 26 N.C. App. 33, 215 S.E.2d 159, 1975 N.C. App. LEXIS 1962 (1975).

Purpose of Section. —

The purpose of this section is to discourage the possession of stolen vehicles by one who knows a vehicle is stolen or has reason to believe that it is stolen. State v. Rook, 26 N.C. App. 33, 215 S.E.2d 159, 1975 N.C. App. LEXIS 1962 (1975); State v. Abrams, 29 N.C. App. 144, 223 S.E.2d 516, 1976 N.C. App. LEXIS 2396 (1976); State v. Murchinson, 39 N.C. App. 163, 249 S.E.2d 871, 1978 N.C. App. LEXIS 2351 (1978).

Elements. —

Defendant charged with possession of stolen property under G.S. 14-71.1 or possession of a stolen vehicle under G.S. 20-106 could be convicted if the State produced sufficient evidence that defendant possessed stolen property (i.e. a vehicle), which he knew or had reason to believe had been stolen or taken. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683, 2003 N.C. App. LEXIS 377 (2003).

Provision as to Police Officers an Exception and Not an Element of Offense. —

The provision exculpating police officers in the line of duty was apparently placed in the statute out of an abundance of legislative caution. Such a provision may have been thought necessary in light of the fact that the crime charged merely requires possession with knowledge that the vehicle is stolen, not criminal intent. The provision is an exception to the statute, not an element of the offense. State v. Murchinson, 39 N.C. App. 163, 249 S.E.2d 871, 1978 N.C. App. LEXIS 2351 (1978).

No Felonious Intent Required. —

Neither the construction of this section nor the purpose for which it was enacted compels a requirement that the doer of the act have a felonious intent. State v. Abrams, 29 N.C. App. 144, 223 S.E.2d 516, 1976 N.C. App. LEXIS 2396 (1976).

This section requires only that the State prove defendant knew or had reason to believe that the vehicle in his possession was stolen. No felonious intent is required. State v. Murchinson, 39 N.C. App. 163, 249 S.E.2d 871, 1978 N.C. App. LEXIS 2351 (1978).

Because the purpose of this section is to discourage the possession of stolen vehicles the State need only prove that the defendant knew or had reason to believe that the vehicle in his possession was stolen. No felonious intent is required. State v. Baker, 65 N.C. App. 430, 310 S.E.2d 101, 1983 N.C. App. LEXIS 3568 (1983), cert. denied, 312 N.C. 85 , 321 S.E.2d 900, 1984 N.C. LEXIS 2185 (1984).

G.S. 14-71 Not Lesser Included Offense. —

The offenses under this section and G.S. 14-71 are separate offenses; the latter is not a lesser included offense under the former. State v. Carlin, 37 N.C. App. 228, 245 S.E.2d 586, 1978 N.C. App. LEXIS 2692 (1978).

Sufficiency of Indictment. —

Indictment was sufficient to give defendant notice of the basis of the habitual felon indictment because the indictment stated that defendant possessed a stolen vehicle, which conveyed exactly the same meaning as saying that a defendant was in possession of a stolen vehicle. Moreover, the indictment also referenced the case number, date, and county of the prior conviction, which was sufficient to allow a person of common understanding to comprehend which felony conviction was being referenced even if the language describing the offense had been unclear. State v. Griffin, 213 N.C. App. 625, 713 S.E.2d 185, 2011 N.C. App. LEXIS 1478 (2011).

Double Jeopardy. —

Defendant’s conviction and sentencing for possession of a stolen vehicle, in violation of G.S. 20-106 , and possession of stolen property, in violation of G.S. 14-71.1 , for possession of the same vehicle, violated double jeopardy because the Legislature did not intend to punish a defendant twice for possession of the same property. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683, 2003 N.C. App. LEXIS 377 (2003).

Unauthorized Use Is Not A Lesser Included Offense of Possession of Stolen Vehicle. —

Unauthorized use of a motor vehicle is not a lesser-included offense of possession of a stolen vehicle and State v. Oliver is overruled to the extent that it is inconsistent with this opinion; unauthorized use of a motor vehicle contains an essential element, taking or operating, that is not included in possession of a stolen vehicle, and thus the trial court did not err in denying defendant’s request to instruct the jury on unauthorized use of a motor vehicle. State v. Robinson, 368 N.C. 402 , 777 S.E.2d 755, 2015 N.C. LEXIS 1058 (2015).

Evidence Held Insufficient to Show Knowledge or Reason to Know. —

Evidence that defendant was in possession of stolen vehicle approximately one month after it was stolen was not sufficient to raise an inference that defendant knew or had reason to believe that the automobile was stolen, where the evidence offered by the State demonstrated the intervening agency of others. State v. Leonard, 34 N.C. App. 131, 237 S.E.2d 347, 1977 N.C. App. LEXIS 1595 (1977).

Evidence tending to show that public vehicle identification number plate on an automobile had been replaced was not sufficient to raise an inference that defendant knew or had reason to believe that the vehicle was stolen, where there was no evidence that the alteration was made by defendant or with his knowledge. State v. Leonard, 34 N.C. App. 131, 237 S.E.2d 347, 1977 N.C. App. LEXIS 1595 (1977).

Decision of the North Carolina Criminal Justice Education and Training Standards Commission, which revoked and suspended a law enforcement officer’s certification as a result of finding that he violated G.S. 20-106 by knowingly possessing a stolen vehicle, was reversed and remanded for the Commission to consider the elements of the offense of possession of a stolen vehicle because the Commission’s order merely citing the statute was insufficient evidence to satisfy the elements of the statute. Powell v. N.C. Crim. Justice Educ. & Training Stds. Comm'n, 165 N.C. App. 848, 600 S.E.2d 56, 2004 N.C. App. LEXIS 1525 (2004).

Effect of Doctrine of Possession of Recently Stolen Goods. —

The doctrine of possession of recently stolen goods is, under appropriate circumstances, applicable to justify denial of a motion for nonsuit in a case charging illegal possession of a stolen vehicle pursuant to this section. State v. Murchinson, 39 N.C. App. 163, 249 S.E.2d 871, 1978 N.C. App. LEXIS 2351 (1978).

Evidence of Possession Held Sufficient. —

Where defendant had control over vehicle, since he was driving it, the State’s evidence in the case was sufficient to go to the jury on the element of possession. State v. Suitt, 94 N.C. App. 571, 380 S.E.2d 570, 1989 N.C. App. LEXIS 537 (1989).

Evidence was sufficient to show defendant knew or had reason to think the car he was driving was stolen as (1) he was driving the car several hours after it was stolen; (2) he said the vehicle belonged to a “friend” whose name he would not give; (3) the car’s owner said he gave no one permission to drive it on the day in question; and (4) defendant had the owner’s keys. State v. Bailey, 157 N.C. App. 80, 577 S.E.2d 683, 2003 N.C. App. LEXIS 377 (2003).

Jury Instructions. —

In light of case law on which the court was bound, despite the discrepancy discovered, the trial court did not err in denying defendant’s request for an instruction on unauthorized use of a motor vehicle as a lesser-included offense of possession of a stolen vehicle. State v. Robinson, 236 N.C. App. 446, 763 S.E.2d 178, 2014 N.C. App. LEXIS 1004 (2014), modified, 368 N.C. 402 , 777 S.E.2d 755, 2015 N.C. LEXIS 1058 (2015).

Defendant failed to show plain error in the jury instructions for possession of a stolen motor vehicle, as the instruction “is in the car, such as driving” related to the theory of actual possession, and the possession element could be satisfied if the jury found that defendant was operating the vehicle; the jury could have inferred that defendant operated the vehicle and was not merely a passenger, and he failed to show that absent any purported error, a different verdict was probable. State v. Quinones, 258 N.C. App. 559, 811 S.E.2d 734, 2018 N.C. App. LEXIS 274 (2018).

§ 14-72. Larceny of property; receiving stolen goods or possessing stolen goods.

  1. Larceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony. The receiving or possessing of stolen goods of the value of more than one thousand dollars ($1,000) while knowing or having reasonable grounds to believe that the goods are stolen is a Class H felony. Larceny as provided in subsection (b) of this section is a Class H felony. Receiving or possession of stolen goods as provided in subsection (c) of this section is a Class H felony. Except as provided in subsections (b) and (c) of this section, larceny of property, or the receiving or possession of stolen goods knowing or having reasonable grounds to believe them to be stolen, where the value of the property or goods is not more than one thousand dollars ($1,000), is a Class 1 misdemeanor. In all cases of doubt, the jury shall, in the verdict, fix the value of the property stolen.
  2. The crime of larceny is a felony, without regard to the value of the property in question, if the larceny is any of the following:
    1. From the person.
    2. Committed pursuant to a violation of G.S. 14-51 , 14-53, 14-54, 14-54.1, or 14-57.
    3. Of any explosive or incendiary device or substance. As used in this section, the phrase “explosive or incendiary device or substance” shall include any explosive or incendiary grenade or bomb; any dynamite, blasting powder, nitroglycerin, TNT, or other high explosive; or any device, ingredient for such device, or type or quantity of substance primarily useful for large-scale destruction of property by explosive or incendiary action or lethal injury to persons by explosive or incendiary action. This definition shall not include fireworks; or any form, type, or quantity of gasoline, butane gas, natural gas, or any other substance having explosive or incendiary properties but serving a legitimate nondestructive or nonlethal use in the form, type, or quantity stolen.
    4. Of any firearm. As used in this section, the term “firearm” shall include any instrument used in the propulsion of a shot, shell or bullet by the action of gunpowder or any other explosive substance within it. A “firearm,” which at the time of theft is not capable of being fired, shall be included within this definition if it can be made to work. This definition shall not include air rifles or air pistols.
    5. Of any record or paper in the custody of the North Carolina State Archives as defined by G.S. 121-2(7) and G.S. 121-2(8) .
    6. Committed after the defendant has been convicted in this State or in another jurisdiction for any offense of larceny under this section, or any offense deemed or punishable as larceny under this section, or of any substantially similar offense in any other jurisdiction, regardless of whether the prior convictions were misdemeanors, felonies, or a combination thereof, at least four times. A conviction shall not be included in the four prior convictions required under this subdivision unless the defendant was represented by counsel or waived counsel at first appearance or otherwise prior to trial or plea. If a person is convicted of more than one offense of misdemeanor larceny in a single session of district court, or in a single week of superior court or of a court in another jurisdiction, only one of the convictions may be used as a prior conviction under this subdivision; except that convictions based upon offenses which occurred in separate counties shall each count as a separate prior conviction under this subdivision.
  3. The crime of possessing stolen goods knowing or having reasonable grounds to believe them to be stolen in the circumstances described in subsection (b) is a felony or the crime of receiving stolen goods knowing or having reasonable grounds to believe them to be stolen in the circumstances described in subsection (b) is a felony, without regard to the value of the property in question.
  4. Where the larceny or receiving or possession of stolen goods as described in subsection (a) of this section involves the merchandise of any store, a merchant, a merchant’s agent, a merchant’s employee, or a peace officer who detains or causes the arrest of any person shall not be held civilly liable for detention, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, when such detention is upon the premises of the store or in a reasonable proximity thereto, is in a reasonable manner for a reasonable length of time, and, if in detaining or in causing the arrest of such person, the merchant, the merchant’s agent, the merchant’s employee, or the peace officer had, at the time of the detention or arrest, probable cause to believe that the person committed an offense under subsection (a) of this section. If the person being detained by the merchant, the merchant’s agent, or the merchant’s employee, is a minor under the age of 18 years, the merchant, the merchant’s agent, or the merchant’s employee, shall call or notify, or make a reasonable effort to call or notify the parent or guardian of the minor, during the period of detention. A merchant, a merchant’s agent, or a merchant’s employee, who makes a reasonable effort to call or notify the parent or guardian of the minor shall not be held civilly liable for failing to notify the parent or guardian of the minor.

History. 1895, c. 285; Rev., s. 3506; 1913, c. 118, s. 1; C.S., s. 4251; 1941, c. 178, s. 1; 1949, c. 145, s. 2; 1959, c. 1285; 1961, c. 39, s. 1; 1965, c. 621, s. 5; 1969, c. 522, s. 2; 1973, c. 238, ss. 1, 2; 1975, c. 163, s. 2; c. 696, s. 4; 1977, c. 978, ss. 2, 3; 1979, c. 408, s. 1; c. 760, s. 5; 1979, 2nd Sess., c. 1316, ss. 11, 47; 1981, c. 63, s. 1; c. 179, s. 14; 1991, c. 523, s. 2; 1993, c. 539, s. 34; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 185, s. 2; 2006-259, s. 4(a); 2012-154, s. 1.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Effect of Amendments.

Session Laws 2006-259, s. 4(a), effective December 1, 2006, and applicable to acts committed on or after that date, added “any of the following” at the end of the introductory paragraph of subsection (b), substituted a period for “; or” at the end of subdivision (b)(1), inserted “14-54.1” in subdivision (b)(2), and inserted “G.S.” preceding “121-2(8)” in subdivision (b)(5).

Session Laws 2012-154, s. 1, effective December 1, 2012, added subdivision (b)(6). For applicability, see editor’s note.

Legal Periodicals.

For case law survey as to punishment for larceny, see 45 N.C.L. Rev. 910 (1967).

For comment on alleging and proving elements of offense under this section and G.S. 14-54 , see 3 Wake Forest Intra. L. Rev. 1 (1967).

For survey of 1981 law on criminal procedure, see 60 N.C.L. Rev. 1302 (1982).

For note discussing the evolution of the law governing double jeopardy and multiple punishments in a single prosecution context, particularly with regard to larceny and breaking and entering, in light of State v. Gardner, 315 N.C. 444 , 340 S.E.2d 701 (1986), see 65 N.C.L. Rev. 1267 (1987).

For article, “Apprendi/Blakely: A Primer for Practitioners,” see 30 N.C. Cent. L. Rev. 1 (2007).

For comment, “Lots of Squeeze, Little (or No) Juice: North Carolina’s Habitual Misdemeanor Larceny Statute, a Law Where Results Do Not Justify Costs,” see 97 N.C.L. Rev. 432 (2019).

CASE NOTES

Analysis

I.General Consideration

Constitutionality. —

Section 14-54 and this section do not violate the equal protection or due process provisions of either the State or federal Constitutions. State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812, 1978 N.C. App. LEXIS 2730 (1978).

Section 14-54 and this section are reasonably related to valid legislative goals. The legislature has determined that breaking or entering with intent to commit larceny is a more serious crime than breaking or entering without the intent to commit larceny or any felony, and that larceny committed pursuant to breaking or entering is more serious than simple larceny. The legislature was acting within its authority in designating these crimes as felonies and in fixing punishment commensurate with their serious nature. State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812, 1978 N.C. App. LEXIS 2730 (1978).

Section 14-54 and this section meet the test of equal protection because all persons who fall under the terms of the statutes are subject to the same sentence. State v. Killian, 37 N.C. App. 234, 245 S.E.2d 812, 1978 N.C. App. LEXIS 2730 (1978).

Purpose. —

A fair and reasonable reading of this section together with G.S. 14-71.1 leads inescapably to the conclusion that the General Assembly intended to make the possession of any stolen firearm, by anyone knowing or having reasonable grounds to believe the firearm to be stolen, a felony, regardless of the value of the firearm. State v. Taylor, 311 N.C. 380 , 317 S.E.2d 369, 1984 N.C. LEXIS 1741 (1984).

The purpose of this section is to establish levels of punishment for larceny based on the value of the goods stolen, the nature of the goods stolen or the method by which stolen, not to create new offenses. State v. Boykin, 78 N.C. App. 572, 337 S.E.2d 678, 1985 N.C. App. LEXIS 4328 (1985).

Purpose of Subdivision (b)(4). —

The legislature, by enacting subdivision (b)(4) of this section, did not intend to create a separate unit of prosecution for each firearm stolen, nor to allow multiple punishment for the theft of multiple firearms. State v. Boykin, 78 N.C. App. 572, 337 S.E.2d 678, 1985 N.C. App. LEXIS 4328 (1985).

Purpose of Amendments. —

It seems probable the General Assembly, in enacting the amendments to this section, was not motivated by a disposition to protect thieves from the adverse effects of inflation, but to reduce the number of cases (involving felony charges) in the exclusive jurisdiction of the superior court. State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962).

This section relates solely to punishment for the separate crime of larceny. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965); State v. Boykin, 78 N.C. App. 572, 337 S.E.2d 678, 1985 N.C. App. LEXIS 4328 (1985).

Breaking or Entering. —

This section applies where there is no charge of breaking and entering or breaking or entering involved. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965).

Section 14-54 concerns only the crimes of breaking and entering buildings and does not relate to the felony of larceny. The crime of larceny after breaking or entering is punishable as provided in this section. State v. Haigler, 14 N.C. App. 501, 188 S.E.2d 586, 1972 N.C. App. LEXIS 2162 , cert. denied, 281 N.C. 625 , 190 S.E.2d 468, 1972 N.C. LEXIS 1141 (1972).

Section Does Not Apply to Burglary. —

A person who burglariously breaks and enters a dwelling at nighttime while the same is occupied is guilty of burglary in the first degree, and the fact that the value of goods stolen from the dwelling is less than $20 is no defense to the capital charge, this section dividing larceny into two degrees having no application to burglary. State v. Richardson, 216 N.C. 304 , 4 S.E.2d 852, 1939 N.C. LEXIS 152 (1939).

The offenses of larceny and receiving are separate and distinct. State v. Golden, 20 N.C. App. 451, 201 S.E.2d 546, 1974 N.C. App. LEXIS 2463 , cert. denied, 285 N.C. 88 , 203 S.E.2d 60, 1974 N.C. LEXIS 920 (1974).

Receiving Is Not Accessorial to Larceny. —

This section, defining the offense of receiving, clearly creates an offense not accessorial to larceny. State v. Golden, 20 N.C. App. 451, 201 S.E.2d 546, 1974 N.C. App. LEXIS 2463 , cert. denied, 285 N.C. 88 , 203 S.E.2d 60, 1974 N.C. LEXIS 920 (1974).

Larceny and possession of the property stolen in the larceny are separate and distinct offenses. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

Where defendant was charged with both larceny and possession of stolen goods relating to the same property, the trial court improperly entered judgment on a jury verdict convicting him of both charges because in such cases a conviction could only be entered on one of the charges. State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519, 2003 N.C. App. LEXIS 1820 (2003).

And therefore double jeopardy considerations do not prohibit punishment of the same person for both offenses. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

Nothing in the United States Constitution or in the Constitution of North Carolina prohibits the Legislature from punishing a defendant for both offenses of larceny and possession, since each crime requires proof of an additional fact which the other does not. State v. Andrews, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 , cert. denied, 459 U.S. 946, 103 S. Ct. 263, 74 L. Ed. 2d 205, 1982 U.S. LEXIS 4028 (1982).

But Legislature Did Not Intend Punishment for Both Larceny and Possession. —

The legislature did not intend to punish an individual for larceny of property and the possession of the same property which he stole. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010); State v. Andrews, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 , cert. denied, 459 U.S. 946, 103 S. Ct. 263, 74 L. Ed. 2d 205, 1982 U.S. LEXIS 4028 (1982); State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

Although it could have done so, the legislature, by creation of the statutory offense of possession of stolen property, did not intend to punish an individual for both larceny and possession. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

And Conviction May Be of Only One of Offenses of Larceny, Receiving, or Possession. —

Although a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he may be convicted of only one of those offenses. State v. Andrews, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 , cert. denied, 459 U.S. 946, 103 S. Ct. 263, 74 L. Ed. 2d 205, 1982 U.S. LEXIS 4028 (1982).

While a defendant may be indicted and tried both for larceny and possession of the same stolen goods, he may not be convicted of both offenses. State v. Williams, 65 N.C. App. 373, 309 S.E.2d 266, 1983 N.C. App. LEXIS 3501 (1983).

A defendant may be found guilty of larceny or receiving but not both. State v. Graham, 47 N.C. App. 303, 267 S.E.2d 56, 1980 N.C. App. LEXIS 3081 (1980).

Although defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he can be convicted of and sentenced for only one of these offenses. State v. Little, 121 N.C. App. 619, 468 S.E.2d 423, 1996 N.C. App. LEXIS 111 (1996).

Convictions of Both Breaking or Entering and Larceny Permissible. —

A defendant may be tried for, convicted of, and punished separately for the crime of breaking or entering and the crime of felony larceny following that breaking or entering when the cases are jointly tried. State v. Gardner, 315 N.C. 444 , 340 S.E.2d 701, 1986 N.C. LEXIS 1900 (1986).

The prohibitions in the United States and North Carolina Constitutions against placing a person twice in jeopardy does not prohibit, in a single trial, convictions and punishment for both breaking or entering and felony larceny based upon that breaking or entering. State v. Gardner, 315 N.C. 444 , 340 S.E.2d 701, 1986 N.C. LEXIS 1900 (1986).

Conviction and punishment for both felony breaking or entering and felonious larceny based upon the same breaking or entering in a single trial is not prohibited by the provisions of either the Constitution of the United States or the Constitution of North Carolina. State v. Edmondson, 316 N.C. 187 , 340 S.E.2d 110, 1986 N.C. LEXIS 1919 (1986).

Breaking or entering with the intention to commit larceny under G.S. 14-54 and larceny following a break-in under this section are separate offenses for which punishment can be imposed without violating the constitutional restriction against double jeopardy. State v. Hall, 81 N.C. App. 650, 344 S.E.2d 811, 1986 N.C. App. LEXIS 2346 , cert. dismissed, 318 N.C. 510 , 349 S.E.2d 868, 1986 N.C. LEXIS 2707 (1986).

Conviction of Larceny Not Precluded by Acquittal of Breaking or Entering. —

It was proper to convict defendant of felonious larceny even though he had been acquitted of felonious breaking or entering when the trial court had instructed the jury on guilt based upon the acting in concert theory. State v. Weaver, 79 N.C. App. 244, 339 S.E.2d 40, 1986 N.C. App. LEXIS 2029 , rev'd, 318 N.C. 400 , 348 S.E.2d 791, 1986 N.C. LEXIS 2657 (1986).

Only difference between larceny and embezzlement is that in the former there must be a trespass, while in the latter that is not necessary. State v. Bailey, 25 N.C. App. 412, 213 S.E.2d 400, 1975 N.C. App. LEXIS 2275 (1975).

Offenses of breaking or entering and larceny are separate and distinct crimes, neither one a lesser included offense of the other. State v. Gardner, 68 N.C. App. 515, 316 S.E.2d 131, 1984 N.C. App. LEXIS 3413 (1984), aff'd, 315 N.C. 444 , 340 S.E.2d 701, 1986 N.C. LEXIS 1900 (1986); State v. Edmondson, 70 N.C. App. 426, 320 S.E.2d 315, 1984 N.C. App. LEXIS 3683 (1984), aff'd, 316 N.C. 187 , 340 S.E.2d 110, 1986 N.C. LEXIS 1919 (1986).

Prosecution Under G.S. 14-74 Not Barred by Dismissal Under This Section. —

Since the element of trespass required in this section is not required for prosecution under G.S. 14-74 , and the element of trust required under G.S. 14-74 is not required in this section, the dismissal in district court of a charge under this section cannot be considered a prior adjudication which would bar prosecution under G.S. 14-74. State v. Bullin, 34 N.C. App. 589, 239 S.E.2d 278, 1977 N.C. App. LEXIS 1775 (1977).

A single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place. In such instances the constitutional guarantee against double jeopardy prohibits multiple convictions. State v. Froneberger, 81 N.C. App. 398, 344 S.E.2d 344, 1986 N.C. App. LEXIS 2303 (1986).

Separate Acts of Larceny Shown. —

Evidence that defendant broke into car dealer’s building and took a number of car keys, property of value, and then selected a car to drive away from lot, showed two separate acts of larceny, separated in time and space, involving separate property. State v. Spruill, 89 N.C. App. 580, 366 S.E.2d 547, 1988 N.C. App. LEXIS 256 , cert. denied, 323 N.C. 368 , 373 S.E.2d 554, 1988 N.C. LEXIS 677 (1988).

Trial court properly denied a defendant’s motion to dismiss one of the larceny counts where substantial evidence showed that he stole a shotgun that was locked behind the seats of a truck, after stealing the shotgun he stole a different automobile, and he then used that automobile to leave the scene; as a result, the case involved two distinct statutory provisions with each larceny predicated on separate and unrelated property. State v. West, 180 N.C. App. 664, 638 S.E.2d 508, 2006 N.C. App. LEXIS 2498 (2006).

Defendant was improperly convicted and sentenced for both larceny of a firearm and felonious larceny of that same firearm pursuant to a breaking or entering; therefore, his felonious larceny pursuant to a breaking or entering charge was reversed and his sentence on that charge was vacated. State v. Adams, 331 N.C. 317 , 416 S.E.2d 380, 1992 N.C. LEXIS 279 (1992).

Larceny Conviction for Procurement of Larceny. —

Larceny conviction was valid where the evidence showed that defendant procured the commission of the larceny, because the distinction that formerly existed between principals and accessories before the fact has been abolished. State v. Cartwright, 81 N.C. App. 144, 343 S.E.2d 557, 1986 N.C. App. LEXIS 2275 (1986).

Felonious Larceny and Safecracking Are Separate Offenses. —

Upon amending G.S. 14-89.1 in 1977, the Legislature clearly intended felonious larceny and safecracking to remain separately punishable offenses; thus a defendant, at a single trial, may be convicted of both crimes as charged in indictments. State v. Strohauer, 84 N.C. App. 68, 351 S.E.2d 823, 1987 N.C. App. LEXIS 2464 (1987).

Conviction of Only One Conspiracy Held Permissible Where There Was Only One Agreement. —

Convictions of both felonious conspiracy to commit felonious breaking and entering and felonious conspiracy to commit felonious larceny could not both be allowed to stand where there was evidence of only one agreement. State v. Hicks, 86 N.C. App. 36, 356 S.E.2d 595, 1987 N.C. App. LEXIS 2660 (1987).

II.Larceny
A.In General

Elements of Offense. —

To constitute larceny there must be a wrongful taking and carrying away of the personal property of another without his consent, and this must be done with felonious intent; that is, with intent to deprive the owner of his property and to appropriate it to the taker’s use fraudulently. State v. Bowers, 273 N.C. 652 , 161 S.E.2d 11, 1968 N.C. LEXIS 644 (1968).

Larceny is the felonious taking and carrying away by any person of the goods or personal property of another, without the latter’s consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker’s own use. State v. Perry, 21 N.C. App. 478, 204 S.E.2d 889, 1974 N.C. App. LEXIS 1845 (1974); State v. Boykin, 78 N.C. App. 572, 337 S.E.2d 678, 1985 N.C. App. LEXIS 4328 (1985).

To establish the offense of larceny, the State must show that defendant took and carried away the goods of another with the intent to deprive the owner thereof permanently. State v. Perry, 52 N.C. App. 48, 278 S.E.2d 273, 1981 N.C. App. LEXIS 2324 (1981), aff'd in part, modified, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982); State v. Thompson, 59 N.C. App. 425, 297 S.E.2d 177, 1982 N.C. App. LEXIS 3163 (1982); State v. Lamson, 75 N.C. App. 132, 330 S.E.2d 68, 1985 N.C. App. LEXIS 3581 (1985); Street v. Moffitt, 84 N.C. App. 138, 351 S.E.2d 821, 1987 N.C. App. LEXIS 2465 (1987).

The essential elements of larceny are that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner’s consent; and (4) with the intent to deprive the owner of his property permanently. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010); State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982); State v. Coats, 74 N.C. App. 110, 327 S.E.2d 298, 1985 N.C. App. LEXIS 3381 , cert. denied, 314 N.C. 118 , 332 S.E.2d 492, 1985 N.C. LEXIS 1935 (1985); In re Bass, 77 N.C. App. 110, 334 S.E.2d 779, 1985 N.C. App. LEXIS 4046 (1985); Street v. Moffitt, 84 N.C. App. 138, 351 S.E.2d 821, 1987 N.C. App. LEXIS 2465 (1987).

To convict a defendant of larceny, it must be shown that he (1) took the property of another; (2) carried it away; (3) without the owner’s consent; and (4) with the intent to deprive the owner of the property permanently. State v. Reeves, 62 N.C. App. 219, 302 S.E.2d 658, 1983 N.C. App. LEXIS 2854 (1983).

The crime of larceny has an element not present in the crime of felonious breaking or entering, to wit, a wrongful taking and carrying away of the personal property of another. As a result it was not inconsistent for the jury to determine that the defendant entered a mobile home with the intent to commit larceny yet find that no larceny was in fact committed. State v. Brown, 308 N.C. 181 , 301 S.E.2d 89, 1983 N.C. LEXIS 1124 (1983).

Trespass was not a necessary element of larceny when possession of property was obtained by trick or artifice; the State did not need to allege how the stolen property was taken and carried away, and the words “by trick” did not need be in an indictment charging larceny. State v. Barbour, 153 N.C. App. 500, 570 S.E.2d 126, 2002 N.C. App. LEXIS 1172 (2002).

Where defendant’s co-conspirator testified that he and defendant planned to break into and rob a convenience store of cigarettes and he saw defendant take a large white bag and break into the store and take the cigarettes, and another witness saw defendant with a large white bag of cigarettes the following day, and where cigarettes valued at $3,500 were missing after the break-in, the trial court properly denied defendant’s motion to dismiss the felony charge because the State had proved all of the essential elements of the crime under G.S. 14-72(a). State v. Owens, 160 N.C. App. 494, 586 S.E.2d 519, 2003 N.C. App. LEXIS 1820 (2003).

The three types of takings prohibited by Md. Code Ann., Crim. Law § 7-104 are similar to the North Carolina common law regarding taking and asportation because in both states, the law is focused on the perpetrator placing the property under his control and depriving the owner of control over it; defendant’s Maryland conviction for theft was substantially similar to the North Carolina offense of misdemeanor larceny for sentencing purposes under G.S. 15A-1340.14 . State v. Key, 180 N.C. App. 286, 636 S.E.2d 816, 2006 N.C. App. LEXIS 2291 (2006).

Elements are Different for Possession of Stolen Goods and Larceny. —

Different elements are involved to establish the crimes of possession of stolen goods and larceny. State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703, 2003 N.C. App. LEXIS 383 (2003).

Person Cannot be Guilty of Possession of Stolen Property and Larceny of the Same Property. —

A review of the legislative history and case law background against which North Carolina’s possession statutes were enacted and an analysis of its internal provisions leads to the conclusion that, by its enactment, the legislature does not intend to punish an individual for larceny of property and the possession of the same property which he stole. State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703, 2003 N.C. App. LEXIS 383 (2003).

Statutory provision upgrading misdemeanor larceny to felony larceny does not change the nature of the crime; the elements of proof remain the same. State v. Boykin, 78 N.C. App. 572, 337 S.E.2d 678, 1985 N.C. App. LEXIS 4328 (1985).

“Felonious intent” is an essential element of the crime of larceny without regard to the value of the stolen property. State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962); State v. Wesson, 16 N.C. App. 683, 193 S.E.2d 425, 1972 N.C. App. LEXIS 1805 (1972), cert. denied, 282 N.C. 675 , 194 S.E.2d 155, 1973 N.C. LEXIS 1150 (1973).

To constitute larceny the taker must have had the intent to steal at the time he unlawfully takes the property from the owner’s possession by an act of trespass. State v. Bowers, 273 N.C. 652 , 161 S.E.2d 11, 1968 N.C. LEXIS 644 (1968).

Where the evidence tended to show that a defendant charged with larceny took or obtained possession of the property by trick or fraud, the burden was on the State to prove that defendant had a felonious intent at the time he took or got possession by trick or fraud. State v. Harris, 35 N.C. App. 401, 241 S.E.2d 370, 1978 N.C. App. LEXIS 2982 (1978).

“Felonious Intent” Defined. —

For definitions of “felonious intent,” an element of the crime of larceny, see State v. Powell, 103 N.C. 424 , 9 S.E. 627, 1889 N.C. LEXIS 134 (1889); State v. Kirkland, 178 N.C. 810 , 101 S.E. 560, 1919 N.C. LEXIS 560 (1919); State v. Booker, 250 N.C. 272 , 108 S.E.2d 426, 1959 N.C. LEXIS 629 (1959); State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962); State v. Wesson, 16 N.C. App. 683, 193 S.E.2d 425, 1972 N.C. App. LEXIS 1805 (1972), cert. denied, 282 N.C. 675 , 194 S.E.2d 155, 1973 N.C. LEXIS 1150 (1973).

The phrase “felonious intent” originated when both grand and petit larceny were felonies. Now “felonious intent,” in the law of larceny, does not necessarily signify an intent to commit a felony. State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962); State v. Wesson, 16 N.C. App. 683, 193 S.E.2d 425, 1972 N.C. App. LEXIS 1805 (1972), cert. denied, 282 N.C. 675 , 194 S.E.2d 155, 1973 N.C. LEXIS 1150 (1973).

The “felonious intent” as applied to the crime of larceny is the intent which exists where a person knowingly takes and carries away the personal property of another without any claim or pretense of right with the intent wholly and permanently to deprive the owner of his property and to convert it to the use of the taker or to some other person than the owner. State v. Wesson, 16 N.C. App. 683, 193 S.E.2d 425, 1972 N.C. App. LEXIS 1805 (1972), cert. denied, 282 N.C. 675 , 194 S.E.2d 155, 1973 N.C. LEXIS 1150 (1973); State v. Perry, 21 N.C. App. 478, 204 S.E.2d 889, 1974 N.C. App. LEXIS 1845 (1974).

Felonious Intent Essential to Robbery and Larceny. —

In robbery, as in larceny, the taking of the property must be with the felonious intent permanently to deprive the owner of his property. State v. Jones, 57 N.C. App. 460, 291 S.E.2d 869, 1982 N.C. App. LEXIS 2676 (1982).

Larceny involves a trespass either actual or constructive. State v. Bowers, 273 N.C. 652 , 161 S.E.2d 11, 1968 N.C. LEXIS 644 (1968); In re Glenn, 73 N.C. App. 302, 326 S.E.2d 646, 1985 N.C. App. LEXIS 3272 (1985).

An act of trespass is an essential element in the crime of larceny. State v. Bailey, 25 N.C. App. 412, 213 S.E.2d 400, 1975 N.C. App. LEXIS 2275 (1975).

Every larceny includes a trespass, and if there is no trespass in taking the goods, there can be no felony committed in carrying them away. State v. Bailey, 25 N.C. App. 412, 213 S.E.2d 400, 1975 N.C. App. LEXIS 2275 (1975).

A conviction under this section requires that either an actual or constructive trespass be shown. State v. Bullin, 34 N.C. App. 589, 239 S.E.2d 278, 1977 N.C. App. LEXIS 1775 (1977).

One who lawfully acquires possession of goods or money of another cannot commit larceny by feloniously converting them to his own use, for the reason that larceny, being a criminal trespass on the right of possession, cannot be committed by one who, being invested with that right, is consequently incapable of trespassing on it. State v. Bailey, 25 N.C. App. 412, 213 S.E.2d 400, 1975 N.C. App. LEXIS 2275 (1975).

But actual trespass is not a necessary element of larceny when possession of property is fraudulently obtained by some trick or artifice. State v. Bowers, 273 N.C. 652 , 161 S.E.2d 11, 1968 N.C. LEXIS 644 (1968).

There must be a taking and carrying away of personal property of another to complete the crime of larceny; otherwise there is only an attempt to commit the offense. State v. Wilfong, 101 N.C. App. 221, 398 S.E.2d 668, 1990 N.C. App. LEXIS 1233 (1990).

“From the Person” Defined by Common Law. —

With regard to larceny from the person, as no statute defines the phrase “from the person” as it relates to larceny, the common law definition controls. At common law, larceny from the person differs from robbery in that larceny from the person lacks the requirement that the victim be put in fear. Larceny from the person forms a middle ground in the common law between the “private” stealing most commonly associated with larceny, and the taking by force and violence commonly associated with robbery. State v. Buckom, 328 N.C. 313 , 401 S.E.2d 362, 1991 N.C. LEXIS 181 (1991).

Taking and Carrying Away. —

While there must be a taking and carrying away of the personal property of another to complete the crime of larceny, it is not necessary that the property be completely removed from the premises of the owner. The least removal of an article, from the actual or constructive possession of the owner, so as to be under the control of the felon, will be a sufficient asportation. State v. Walker, 6 N.C. App. 740, 171 S.E.2d 91, 1969 N.C. App. LEXIS 1270 (1969).

Severance from Owner’s Possession. —

Even if only for an instant, there must be a complete severance of the object from the owner’s possession, to such an extent that the defendant has absolute possession of it. State v. Carswell, 36 N.C. App. 377, 243 S.E.2d 911, 1978 N.C. App. LEXIS 2487 , rev'd, 296 N.C. 101 , 249 S.E.2d 427, 1978 N.C. LEXIS 1165 (1978).

Length of Possession Immaterial. —

The fact that the property may have been in defendant’s possession and under his control for only an instant is immaterial if his removal of the property from its original status was such as would constitute a complete severance from the possession of the owner. State v. Walker, 6 N.C. App. 740, 171 S.E.2d 91, 1969 N.C. App. LEXIS 1270 (1969).

Exclusive Control. —

It is not always necessary that the stolen property should have been actually in the hands or on the person of the accused and it is sufficient if such property was under his exclusive personal control. State v. Foster, 268 N.C. 480 , 151 S.E.2d 62, 1966 N.C. LEXIS 1238 (1966); State v. Solomon, 24 N.C. App. 527, 211 S.E.2d 478, 1975 N.C. App. LEXIS 2420 (1975).

Single Larceny Offense. —

Single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place; trial court erred in denying defendant’s motion to dismiss a larceny charge where he took tools from multiple vans, but the vans were parked inside the same locked fence in close proximity as the larcenies were part of a single, continuous transaction. State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703, 2003 N.C. App. LEXIS 383 (2003).

Each Item Taken In Single Criminal Incident is Not Separate Offense. —

Nothing in the statutory language of this section suggests that to charge a person with a separate offense for each item stolen in a single criminal incident is intended. State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703, 2003 N.C. App. LEXIS 383 (2003).

Custody is not a bar to the elements of trespass or intent to deprive. In re Glenn, 73 N.C. App. 302, 326 S.E.2d 646, 1985 N.C. App. LEXIS 3272 (1985).

One with custody may commit larceny where she subsequently forms the intent to, and does, convert such property. In re Glenn, 73 N.C. App. 302, 326 S.E.2d 646, 1985 N.C. App. LEXIS 3272 (1985).

Obtaining Title Through Fraud. —

When, in addition to possession, the owner voluntarily passes title as well to the alleged thief, not expecting the property to be returned to him or to be disposed of in accordance with his directions, trespass is involved and the taker is not guilty of larceny, even where the owner is induced to part with the title through the fraud and misrepresentation of the alleged thief. Although the acts of the perpetrator of the fraud may be criminal in such a case, they constitute some other crime than common-law larceny. State v. Robertson, 55 N.C. App. 659, 286 S.E.2d 612, 1982 N.C. App. LEXIS 2251 (1982).

Property Must Belong to Another. —

An essential element of larceny is that the property taken must belong to another person. State v. Bost, 55 N.C. App. 612, 286 S.E.2d 632, 1982 N.C. App. LEXIS 2242 (1982).

Knowing the Identity of Owner. —

Taking money with intent to deprive the owner when the identity of the owner is known constitutes misdemeanor larceny. Rowland v. Perry, 41 F.3d 167, 1994 U.S. App. LEXIS 33432 (4th Cir. 1994).

Where police officer saw victim drop money, saw detainee pick it up and keep it and it appeared to officer that detainee knew the identity of the owner of the money when he took it, officer had ample reason to believe that detainee was committing the crime of misdemeanor larceny. Rowland v. Perry, 41 F.3d 167, 1994 U.S. App. LEXIS 33432 (4th Cir. 1994).

Title to Property Taken. —

It is no defense to a larceny charge that title to the property taken is in one other than the person from whom it was taken. State v. Richardson, 8 N.C. App. 298, 174 S.E.2d 77, 1970 N.C. App. LEXIS 1541 (1970); State v. Eppley, 14 N.C. App. 314, 188 S.E.2d 758, 1972 N.C. App. LEXIS 2124 , aff'd in part and rev'd in part, 282 N.C. 249 , 192 S.E.2d 441, 1972 N.C. LEXIS 932 (1972).

In the prosecution for feloniously breaking and entering it was incumbent upon the State to establish, at the time the defendant broke and entered, that he intended to steal something. However, it was not incumbent upon the State to establish ownership of the property which he intended to steal, the particular ownership being immaterial. State v. Young, 60 N.C. App. 705, 299 S.E.2d 834, 1983 N.C. App. LEXIS 2516 (1983).

Ownership Need Not Be Laid In Particular Person. —

As long as it can be shown defendant was not taking his own property, ownership need not be laid in a particular person to allege and prove robbery. State v. Pratt, 306 N.C. 673 , 295 S.E.2d 462, 1982 N.C. LEXIS 1556 (1982).

Entry Prohibited by Separation Agreement. —

Bill of indictment charging defendant with felonious breaking and entering and felonious larceny of antique guns was not subject to being quashed on grounds that defendant was married to the occupier of the premises, where defendant’s entry of the premises was expressly prohibited by a marital separation agreement. State v. Lindley, 81 N.C. App. 490, 344 S.E.2d 291, 1986 N.C. App. LEXIS 2291 (1986).

No Trespass. —

Absent a trespass, there was no felonious larceny under G.S. 14-72 ; a trial court should have dismissed a larceny charge which was based on defendant’s admission that she dug up and spent money buried by the victim in land defendant was renting, even though the money was buried before defendant’s lease. No trespassory taking occurred since the lease granted defendant lawful possession of the land where the money was buried. State v. Jones, 177 N.C. App. 269, 628 S.E.2d 436, 2006 N.C. App. LEXIS 842 (2006).

Trial court properly assigned one prior conviction point in sentencing because attempted felonious larceny, which was the present offense, was a lesser included offense of felonious larceny, which was a prior conviction, and thus all of the elements of the present offense were included in the prior conviction for G.S. 15A-1340.14(b)(6) purposes; further, G.S. 14-72 related solely to punishment for the separate crime of larceny, did not change the nature of the crime, and the elements remained the same. Thus, for purposes of G.S. 15A-1340.14(b)(6), it did not matter under what provision of G.S. 14-72 the prior larceny convictions were established. State v. Ford, 195 N.C. App. 321, 672 S.E.2d 689, 2009 N.C. App. LEXIS 113 (2009).

Substantial Evidence Supported Conviction. —

Trial court properly denied defendant’s motion to dismiss a charge of larceny from the person because, while the victim was looking at a jar of pickles when defendant took the victim’s purse from a grocery cart, there was substantial evidence that the purse was in the victim’s immediate presence and was under the victim’s protection or control. State v. Sheppard, 228 N.C. App. 266, 744 S.E.2d 149, 2013 N.C. App. LEXIS 721 (2013).

In a misdemeanor larceny case involving a stolen cellphone, a dismissal was not warranted because there was substantial evidence that respondent, a juvenile, was the perpetrator of the crime; the trial court heard the testimony of the victim, a witness, several officers, narratives of the events, and about the items found on respondent when arrested. In re K.M.M., 242 N.C. App. 25, 774 S.E.2d 430, 2015 N.C. App. LEXIS 572 (2015).

Denial of defendant’s motion to dismiss was appropriate in defendant’s trial for felony larceny because a rational juror could have concluded from the evidence of a surveillance video and the identifications of defendant by witnesses that defendant was the sole occupant and driver of a pickup truck and, without the owner’s consent, hitched the owner’s parked trailer — valued at over $1,000 — to the truck and drove away with the trailer in tow, intending to deprive the owner of the trailer permanently. State v. McKoy, 277 N.C. App. 639, 859 S.E.2d 635, 2021- NCCOA-237, 2021 N.C. App. LEXIS 247 (2021).

Insufficient Evidence. —

Defendant’s convictions for felony larceny were vacated as he did not take money from a company’s possession by an act of actual trespass, and he did not trick the company to deposit extra money into his account, as the money was deposited by mistake; defendant did not actually or constructively trespass on the property of another in making withdrawals and purchasing cashier’s checks with the money deposited in his own bank account. State v. Jones, 244 N.C. App. 719, 781 S.E.2d 333, 2016 N.C. App. LEXIS 56 (2016), rev'd, 369 N.C. 631 , 800 S.E.2d 54, 2017 N.C. LEXIS 404 (2017).

B.Degree of Offense

This section divides larceny into two degrees, one a misdemeanor, the other a felony. State v. Andrews, 246 N.C. 561 , 99 S.E.2d 745, 1957 N.C. LEXIS 482 (1957); State v. Barber, 5 N.C. App. 126, 167 S.E.2d 883, 1969 N.C. App. LEXIS 1292 (1969).

Degree of Offense Depends Solely on Value of Property Taken. —

Whether a person who commits the crime of larceny is guilty of a felony or guilty of a misdemeanor depends solely upon the value of the property taken. State v. Summers, 263 N.C. 517 , 139 S.E.2d 627, 1965 N.C. LEXIS 1321 (1965).

Erroneous admission of a surveillance videotape was not harmless because this was the only evidence of the value of stolen property, required to prove a felony under G.S. 14-72(a). State v. Snead, 239 N.C. App. 439, 768 S.E.2d 344, 2015 N.C. App. LEXIS 83 (2015), rev'd in part, 368 N.C. 811 , 783 S.E.2d 733, 2016 N.C. LEXIS 313 (2016).

Dividing line between felonious and nonfelonious larceny, not perpetrated by breaking and entering, is $200 (now $1,000). Anders v. Turner, 379 F.2d 46, 1967 U.S. App. LEXIS 6198 (4th Cir. 1967).

Attempted Felonious Larceny. —

Elements of nonfelonious larceny are the same as felonious larceny, except that pursuant to G.S. 14-72(a), for nonfelonious larceny the stolen goods must be worth $1000 or less; therefore, because defendant only argued that the State of North Carolina failed to present substantial evidence that a pickup truck was not worth $1000 and did not challenge that defendant committed attempted larceny of the pickup truck, defendant’s argument that the trial court erred by denying defendant’s motion to dismiss the charge of attempted felonious larceny failed. State v. Clark, 208 N.C. App. 388, 702 S.E.2d 324, 2010 N.C. App. LEXIS 2435 (2010).

State Must Prove Value Exceeds $400 for Felony. —

In cases under this section, it is incumbent upon the State to prove beyond a reasonable doubt that the property stolen had a value in excess of $200 (now $1,000) in order for the punishment to be that provided for a felony. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965).

In order for the defendant to be found guilty of a felony under G.S. 14-71 , it is incumbent upon the State to prove beyond a reasonable doubt that the value of the goods was more than $200 (now $1,000). This is an essential element of the crime because this section specifically provides that “the receiving of stolen goods knowing them to be stolen, of the value of not more than two hundred dollars is hereby declared a misdemeanor.” State v. Wallace, 270 N.C. 155 , 153 S.E.2d 873, 1967 N.C. LEXIS 1318 (1967).

State Must Prove That Value of Property Exceeded $1,000. —

Except in those instances where this section does not apply, to convict of the felony of larceny, it is incumbent upon the State to prove beyond a reasonable doubt that the value of the stolen property was more than $200 (now $1,000); and, this being an essential element of the offense, it is incumbent upon the trial judge to so instruct the jury. State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962); State v. Holloway, 265 N.C. 581 , 144 S.E.2d 634, 1965 N.C. LEXIS 1054 (1965), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010); State v. Jones, 275 N.C. 432 , 168 S.E.2d 380, 1969 N.C. LEXIS 412 (1969).

Except in those cases where this section is inapplicable, the State must prove beyond a reasonable doubt that the value of the stolen property was more than $200 (now $1,000) in order to convict of felony-larceny, and the trial judge must so instruct the jury even though no request is made for such instruction. The reason for this requirement is that the defendant’s plea of not guilty places in issue every essential element of the offense, including the element of value of the property stolen, and the credibility of the testimony must be passed upon by the jury. State v. Walker, 6 N.C. App. 740, 171 S.E.2d 91, 1969 N.C. App. LEXIS 1270 (1969).

The burden of proof as to value in excess of $200 (now $1,000) is upon the State as an essential element of the crime of felonious larceny where defendant is not charged with or found guilty of felonious breaking or entering as a part of the same occurrence. State v. Lilly, 25 N.C. App. 453, 213 S.E.2d 418, 1975 N.C. App. LEXIS 2287 (1975).

Erroneous admission of lay opinion testimony in a larceny prosecution was not harmless because nothing else showed the value of the property taken. State v. Snead, 239 N.C. App. 439, 768 S.E.2d 344, 2015 N.C. App. LEXIS 83 (2015), rev'd in part, 368 N.C. 811 , 783 S.E.2d 733, 2016 N.C. LEXIS 313 (2016).

Jury Must Find Beyond Reasonable Doubt That Value Exceeded $1,000. —

Although an indictment charges, and all the evidence tends to show, that the value of the stolen property was more than $200 (now $1,000), the jury, under appropriate instructions, must find from the evidence beyond a reasonable doubt that this is the fact. State v. Curry, 288 N.C. 312 , 218 S.E.2d 374, 1975 N.C. LEXIS 978 (1975).

It is incumbent upon the State to prove beyond a reasonable doubt that the value of the stolen property was more than $200 (now $1,000); and, value in excess of $200 (now $1,000) being an essential element of the offense, it is incumbent upon the trial judge to so instruct the jury. The basis for this requirement is the elementary proposition that the credibility of the testimony, even though unequivocal and uncontradicted, must be passed upon by the jury. State v. Curry, 288 N.C. 312 , 218 S.E.2d 374, 1975 N.C. LEXIS 978 (1975).

Insufficient Evidence for Felony Larceny Charge. —

Defendant’s conviction of felonious larceny, G.S. 14-72 , was reversed and remanded for resentencing because the trial court failed to find that the value of the property he took was more than $1,000.00 or that he committed the larceny in the course of a felonious breaking and entering, as required by the statute. State v. Matthews, 175 N.C. App. 550, 623 S.E.2d 815, 2006 N.C. App. LEXIS 138 (2006).

Evidence was insufficient to convict defendant of felonious larceny based upon the stolen items having a value in excess of $1,000 because the trial court erred in ruling that the value of the stolen items was a question of fact for the jury to decide as the jury could not estimate the value of the stolen items because the State presented no evidence upon which the jury could reasonably ascertain the combined value of the television and the earrings; however, because the trial court instructed the jury on the lesser-included offense of misdemeanor larceny, and the jury necessarily found that all the elements necessary to establish that offense were proven, the case was remanded for entry of judgment and resentencing for misdemeanor larceny. State v. Bacon, 254 N.C. App. 463, 803 S.E.2d 402, 2017 N.C. App. LEXIS 553 (2017).

Fair Market Value Versus Replacement Cost. —

Where stolen property is not commonly traded and has no ascertainable market value, a jury may infer the market value of the stolen property from evidence of the replacement cost. State v. Helms, 107 N.C. App. 237, 418 S.E.2d 832, 1992 N.C. App. LEXIS 667 (1992).

Effect of Plea of Not Guilty. —

A plea of not guilty to an indictment charging the felony of larceny puts in issue every essential element of the crime and constitutes a denial of the charge that the value of the stolen property was more than $200 (now $1,000). State v. Jones, 275 N.C. 432 , 168 S.E.2d 380, 1969 N.C. LEXIS 412 (1969).

Larceny Where Value Is $400 or Less Is Only a Misdemeanor. —

If the value of the stolen property is found to be of the value of not more than $200 (now $1,000) or less, such larceny is only a misdemeanor and punishable as such. State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965).

Nothing else appearing, larceny of goods of the value of not more than $200 (now $1,000) is a misdemeanor. State v. Barber, 5 N.C. App. 126, 167 S.E.2d 883, 1969 N.C. App. LEXIS 1292 (1969).

III.Receiving Stolen Property

Elements of Offense. —

The essential elements of feloniously receiving stolen property are (1) receiving or aiding in the concealment of personal property, (2) valued at more than $400.00 (now $1,000), (3) which has been stolen, (4) by someone else, (5) the receiver knowing or having reasonable grounds to believe the property to have been stolen, and (6) the receiver acting with a dishonest purpose. State v. Davis, 302 N.C. 370 , 275 S.E.2d 491, 1981 N.C. LEXIS 1059 (1981).

Same — Knowledge. —

Knowledge that the goods were stolen at the time of receiving them is an essential element of the offense of receiving stolen goods, and although guilty knowledge may be inferred from incriminating circumstances, a charge that such knowledge might be actual or implied, without specifying that it would have to exist at the time of the receiving, is erroneous. State v. Saulding, 211 N.C. 63 , 188 S.E. 647, 1936 N.C. LEXIS 405 (1936).

IV.Possession of Stolen Property

“Possession” Defined. —

One has possession of stolen property when one has both the power and intent to control its disposition or use. In re Dulaney, 74 N.C. App. 587, 328 S.E.2d 904, 1985 N.C. App. LEXIS 3523 (1985); State v. Bartlett, 77 N.C. App. 747, 336 S.E.2d 100, 1985 N.C. App. LEXIS 4393 (1985).

Elements of Offense. —

The essential elements of feloniously possessing stolen property are (1) possession of personal property, (2) valued at more than $400.00 (now $1,000), (3) which has been stolen, (4) the possessor knowing or having reasonable grounds to believe the property to have been stolen, and (5) the possessor acting with a dishonest purpose. State v. Davis, 302 N.C. 370 , 275 S.E.2d 491, 1981 N.C. LEXIS 1059 (1981); In re Dulaney, 74 N.C. App. 587, 328 S.E.2d 904, 1985 N.C. App. LEXIS 3523 (1985); State v. Bartlett, 77 N.C. App. 747, 336 S.E.2d 100, 1985 N.C. App. LEXIS 4393 (1985); State v. Parker, 316 N.C. 295 , 341 S.E.2d 555, 1986 N.C. LEXIS 2129 (1986).

The essential elements of possession of stolen property are: (1) possession of personal property; (2) which has been stolen; (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen; and (4) the possessor acting with a dishonest purpose. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010); State v. Brown, 81 N.C. App. 622, 344 S.E.2d 817, 1986 N.C. App. LEXIS 2355 (1986).

The essential elements which must be proved under G.S. 14-71.1 and this section on a charge of felonious possession of stolen property are: (1) possession of personal property; (2) having a value in excess of $400.00 (now $1,000); (3) which has been stolen; (4) the possessor knowing or having reasonable grounds to believe the property was stolen; and (5) the possessor acting with a dishonest purpose. State v. Martin, 97 N.C. App. 19, 387 S.E.2d 211, 1990 N.C. App. LEXIS 26 (1990).

Indictment charging defendant with possession of stolen goods was not fatally defective as the indictment for that crime did not have to signify that an entity that was allegedly wronged was capable of owning property. State v. Patterson, 194 N.C. App. 608, 671 S.E.2d 357, 2009 N.C. App. LEXIS 24 (2009).

Reasonable Grounds to Know Property Stolen. —

The state’s evidence that the defendant was in a tavern with a person who made a call to a pawn shop, the defendant left the tavern with this person, the property was taken from a truck at approximately this time and the defendant then had possession of the property a short time later, which property he pawned, was substantial evidence from which a jury could conclude the defendant knew or had reasonable grounds to know the property was stolen. State v. Davis, 80 N.C. App. 523, 342 S.E.2d 530, 1986 N.C. App. LEXIS 2186 (1986).

Taking and Carrying Away Not Essential. —

The elements of taking and carrying away of the property are not essential to the offense of possession of stolen property. State v. Andrews, 52 N.C. App. 26, 277 S.E.2d 857, 1981 N.C. App. LEXIS 2318 (1981), aff'd in part and rev'd in part, 306 N.C. 144 , 291 S.E.2d 581, 1982 N.C. LEXIS 1384 (1982).

Joint Possession. —

There may be joint possession of stolen goods by two or more persons if they are shown to have acted in concert, the possession of one participant being the possession of all. State v. Eppley, 14 N.C. App. 314, 188 S.E.2d 758, 1972 N.C. App. LEXIS 2124 , aff'd in part and rev'd in part, 282 N.C. 249 , 192 S.E.2d 441, 1972 N.C. LEXIS 932 (1972).

Exclusive possession of stolen property may be joint possession if persons are shown to have acted in concert or to have been particeps criminis. State v. Solomon, 24 N.C. App. 527, 211 S.E.2d 478, 1975 N.C. App. LEXIS 2420 (1975).

There may be joint possession of stolen goods by two or more persons if they are shown to have acted in concert. State v. Bartlett, 77 N.C. App. 747, 336 S.E.2d 100, 1985 N.C. App. LEXIS 4393 (1985).

Trial court erred by sentencing defendant on five, rather than one, counts of felony possession of stolen goods, as defendant and his companions stole five all-terrain vehicles (ATVs) from the same victim during one break-in, occurring on the same night, and there was no interruption in the events once the transaction began such that defendant was divested of possession and then came back into possession; the ATVs were stolen at approximately the same time, and defendant’s actions were part of a single, continuous transaction. State v. Phillips, 172 N.C. App. 143, 615 S.E.2d 880, 2005 N.C. App. LEXIS 1426 (2005).

Recent Possession. —

To invoke the doctrine of recent possession, the State must prove: (1) the property described in the indictment was stolen; (2) the stolen goods were found in defendant’s custody and subject to his control and disposition to the exclusion of others; and (3) the possession was discovered recently after the larceny. State v. Mitchell, 109 N.C. App. 222, 426 S.E.2d 443, 1993 N.C. App. LEXIS 222 (1993).

Relevant Evidence. —

Denial of defendant’s motion in limine was not plain error as there was no G.S. 8C-1 , N.C. R. Evid. 404(b) violation in a witness’s testimony that a digital camera was stolen during a breaking and entering from the witness’s employer, and that the digital camera found in defendant’s camper was that camera as the testimony only tended to show that defendant possessed stolen items, not that defendant was acting in conformity with a propensity to steal, and the fact that defendant had multiple stolen items in the camper was relevant to the felonious possession of stolen goods charge under G.S. 14-72(c). State v. Patterson, 194 N.C. App. 608, 671 S.E.2d 357, 2009 N.C. App. LEXIS 24 (2009).

Evidence Supported Conviction for Misdemeanor, Not Felony. —

Jury’s verdict only supported a conviction for misdemeanor possession of stolen property because the jury found defendant not guilty of breaking and entering and the jury was not charged on whether the value of the truck was over $1,000. State v. Marsh, 187 N.C. App. 235, 652 S.E.2d 744, 2007 N.C. App. LEXIS 2357 (2007), overruled in part, State v. Tanner, 364 N.C. 229 , 695 S.E.2d 97, 2010 N.C. LEXIS 423 (2010).

Conviction for felony possession of stolen goods was reduced to misdemeanor possession of stolen goods because there was no evidence of the value of the goods stolen. State v. Tanner, 193 N.C. App. 150, 666 S.E.2d 845, 2008 N.C. App. LEXIS 1759 (2008), rev'd, 364 N.C. 229 , 695 S.E.2d 97, 2010 N.C. LEXIS 423 (2010).

Pawning of Property Held Possession for Dishonest Purpose. —

Where the defendant had possession of the property and rather than attempting to return it to its rightful owner he pawned it, this would be possession for a dishonest purpose. State v. Davis, 80 N.C. App. 523, 342 S.E.2d 530, 1986 N.C. App. LEXIS 2186 (1986).

Separate Offenses. —

While defendant possessed two separate stolen firearms, defendant could not be convicted on separate counts for each firearm possessed under G.S. 14-71.1 ; the Boykin interpretation of the North Carolina legislature’s intent in G.S. 14-72(b)(4) applied to G.S. 14-71.1 . State v. Surrett, 217 N.C. App. 89, 719 S.E.2d 120, 2011 N.C. App. LEXIS 2345 (2011).

Evidence Held Insufficient. —

Trial court erred in denying defendant’s motion to dismiss the charge of felony possession of stolen goods, because the State’s evidence that the decals had been removed and another sticker attached fell well short of providing “substantial evidence” that defendant knew or should have known that the four-wheeler was stolen, as necessary to submit the charge to the jury. State v. Cannon, 216 N.C. App. 507, 721 S.E.2d 691, 2011 N.C. App. LEXIS 2292 (2011).

V.Value of Property

“Value” as used in this section means fair market value. State v. Cotten, 2 N.C. App. 305, 163 S.E.2d 100, 1968 N.C. App. LEXIS 917 (1968).

The “market value” of the stolen item is used in determining whether the crime is felonious or nonfelonious. State v. Dees, 14 N.C. App. 110, 187 S.E.2d 433, 1972 N.C. App. LEXIS 2049 (1972).

“Market value” of a stolen item is the criterion used to determine the worth of personal property which was the subject of a larceny. State v. Hall, 57 N.C. App. 544, 291 S.E.2d 873, 1982 N.C. App. LEXIS 2683 (1982).

The proper method for determining value under this section is the price that the stolen goods would bring in the open market in the condition they were in at the time they were stolen, not their replacement value. State v. Morris, 79 N.C. App. 659, 339 S.E.2d 834, 1986 N.C. App. LEXIS 2103 , rev'd, 318 N.C. 643 , 350 S.E.2d 91, 1986 N.C. LEXIS 2737 (1986).

In the case of common articles having a market value, the courts have usually rejected the original cost and any special value to the owner personally as standards of value for purposes of graduation of the offense, and have declared the proper criterion to be the price which the subject of the larceny would bring in open market — its “market value” or its “reasonable selling price,” at the time and place of the theft and in the condition in which it was when the thief commenced the acts culminating in the larceny. State v. Dees, 14 N.C. App. 110, 187 S.E.2d 433, 1972 N.C. App. LEXIS 2049 (1972).

For determining whether the crime is a felony or a misdemeanor under this section, the word “value” means the fair market value of the stolen item at the time of the theft. State v. Shaw, 26 N.C. App. 154, 215 S.E.2d 390, 1975 N.C. App. LEXIS 1993 (1975).

The word “value” as used in this section does not mean the price at which the owner would sell, but means fair market value. State v. Haney, 28 N.C. App. 222, 220 S.E.2d 371, 1975 N.C. App. LEXIS 1725 (1975).

“Value” in subsection (a) of this section refers to fair market value, not replacement cost. State v. Morris, 318 N.C. 643 , 350 S.E.2d 91, 1986 N.C. LEXIS 2737 (1986).

Value Based on Fair Market Value. —

In cases under G.S. 14-72(a), the value is based upon the fair market value of the property stolen since it has been entirely lost. State v. Gorham, 262 N.C. App. 483, 822 S.E.2d 313, 2018 N.C. App. LEXIS 1105 (2018).

Money is the standard of value. If the amount is known there can be no disagreement as to value. State v. Summers, 263 N.C. 517 , 139 S.E.2d 627, 1965 N.C. LEXIS 1321 (1965).

Price Received for Stolen Goods Is Irrelevant. —

The price received for stolen tools had no relevance to the “market value.” State v. Dees, 14 N.C. App. 110, 187 S.E.2d 433, 1972 N.C. App. LEXIS 2049 (1972).

Actual Value of Property, Not Taker’s Intent, Is Determinative. —

The actual value of the thing wrongfully appropriated, rather than the intention of the taker with respect to value, determines the grade of larceny. State v. Dees, 14 N.C. App. 110, 187 S.E.2d 433, 1972 N.C. App. LEXIS 2049 (1972).

Value of Property Taken, Not Property Possessed, Is Determinative. —

This section requires the State to prove the value of the property taken, not the property possessed by the accused, to be in excess of $200 (now $1,000). State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284, 1977 N.C. App. LEXIS 2187 (1977).

Fire Insurance Coverage Immaterial to Value After Fire. —

The extent of fire insurance obtained prior to fire was immaterial to the issue of whether personal property stolen after the fire had any value. State v. Hall, 57 N.C. App. 544, 291 S.E.2d 873, 1982 N.C. App. LEXIS 2683 (1982).

Opinion as to Value. —

It is not necessary that a witness be an expert in order to give his opinion as to value. State v. Cotten, 2 N.C. App. 305, 163 S.E.2d 100, 1968 N.C. App. LEXIS 917 (1968).

A witness who has knowledge of value gained from experience, information and observation may give his opinion of the value of specific real property, personal property, or services. State v. Cotten, 2 N.C. App. 305, 163 S.E.2d 100, 1968 N.C. App. LEXIS 917 (1968).

The witness’s testimony as to his opinion the “value” of the stolen automobile was properly admitted and was sufficient to require submission to the jury of an issue as to defendant’s guilt of felonious larceny under this section where defendant did not object to the form of the question or move to strike the answer. State v. Coleman, 24 N.C. App. 530, 211 S.E.2d 542, 1975 N.C. App. LEXIS 2421 (1975).

In a prosecution under this section, the testimony of a security officer, based on her observations as an employee of a store, relating to the “approximate” number of different items she observed being stolen and the retail value of each item, was competent to establish the value of the goods stolen. State v. Austin, 75 N.C. App. 338, 330 S.E.2d 661, 1985 N.C. App. LEXIS 3632 (1985).

Despite initially stating that he did not know what fair market value of stolen items was, once witness understood the meaning of the term he was able to give clear, cogent testimony as to the “fair market value” of his tools at the time they were taken, and his testimony was credible. State v. Haire, 96 N.C. App. 209, 385 S.E.2d 178, 1989 N.C. App. LEXIS 955 (1989), cert. denied, 326 N.C. 265 , 389 S.E.2d 117, 1990 N.C. LEXIS 83 (1990).

Estimate has been held to be some evidence of value. State v. Cotten, 2 N.C. App. 305, 163 S.E.2d 100, 1968 N.C. App. LEXIS 917 (1968).

Retail Price as Proof of Value. —

Where a merchant has determined a retail price of merchandise which he is willing to accept as the worth of the item offered for sale, such a price constitutes evidence of fair market value sufficient to survive a motion to dismiss. State v. Williams, 65 N.C. App. 373, 309 S.E.2d 266, 1983 N.C. App. LEXIS 3501 (1983).

Evidence of Value Held Sufficient. —

Absent direct evidence of value, evidence was sufficient to support the jury’s finding that the value of a 1975 Chrysler Cordoba at the time of the theft exceeded $400.00. State v. Holland, 318 N.C. 602 , 350 S.E.2d 56, 1986 N.C. LEXIS 2742 (1986).

Evidence was sufficient to support defendant’s conviction for felony larceny, in violation of G.S. 14-72 , as there was testimony from the owner of a van that defendant stole as to the value of it, based on the loan on the vehicle; such testimony was sufficient to establish that the van was valued at more than $1,000. State v. Redman, 224 N.C. App. 363, 736 S.E.2d 545, 2012 N.C. App. LEXIS 1440 (2012).

Testimony by the owner of a marine store regarding the value of the stolen boat batteries provided sufficient evidence that the value of the batteries exceeded $1,000, as required for a felony larceny conviction. State v. Fish, 229 N.C. App. 584, 748 S.E.2d 65, 2013 N.C. App. LEXIS 963 (2013).

VI.Offenses Which Are Felonies Regardless of Value of Property

Where this section does not apply, the larceny is a felony, as at common law, without regard to the value of the stolen property. State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962); State v. Fowler, 266 N.C. 667 , 147 S.E.2d 36, 1966 N.C. LEXIS 1415 (1966).

Larceny is a felony regardless of the value of property stolen, if committed pursuant to a violation of G.S. 14-51 , 14-53, 14-54 or 14-57. State v. Smith, 66 N.C. App. 570, 312 S.E.2d 222, 1984 N.C. App. LEXIS 2952 (1984).

Larceny from Building. —

Larceny from a building in violation of G.S. 14-51 , 14-53, 14-54 or 14-57 is a felony, without regard to the value of the property. State v. Benfield, 278 N.C. 199 , 179 S.E.2d 388, 1971 N.C. LEXIS 958 (1971).

Same — Larceny by Breaking and Entering. —

Under the amendment of this section, larceny by breaking and entering any building referred to therein is a felony without regard to the value of the stolen property. State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962); State v. Jones, 264 N.C. 134 , 141 S.E.2d 27, 1965 N.C. LEXIS 1129 (1965); State v. Wilson, 264 N.C. 595 , 142 S.E.2d 180, 1965 N.C. LEXIS 1246 (1965); State v. McKoy, 265 N.C. 380 , 144 S.E.2d 46, 1965 N.C. LEXIS 989 (1965); State v. Brown, 266 N.C. 55 , 145 S.E.2d 297, 1965 N.C. LEXIS 1389 (1965).

Where larceny is committed pursuant to breaking and entering, it constitutes a felony without regard to the value of the property in question. State v. Richardson, 8 N.C. App. 298, 174 S.E.2d 77, 1970 N.C. App. LEXIS 1541 (1970); State v. Wright, 22 N.C. App. 428, 206 S.E.2d 787, 1974 N.C. App. LEXIS 2348 (1974).

Larceny is a felony, without regard to the value of the property taken, when committed pursuant to a burglary or a breaking or entering. State v. Helton, 79 N.C. App. 566, 339 S.E.2d 814, 1986 N.C. App. LEXIS 2082 (1986).

Evidence was legally sufficient to support defendant’s conviction for felonious larceny under G.S. 14-72(a) because although the value of the items taken was less than $1,000, the crime was elevated to a felony when it was committed pursuant to a breaking and entering under G.S. 14-54 . State v. Jones, 188 N.C. App. 562, 655 S.E.2d 915, 2008 N.C. App. LEXIS 200 (2008).

Occupancy is not an element of G.S. 14-54 and this section. State v. Young, 60 N.C. App. 705, 299 S.E.2d 834, 1983 N.C. App. LEXIS 2516 (1983).

Larceny Following Breaking and Entering by Stranger. —

This section cannot reasonably be interpreted to permit defendant’s conviction of felonious larceny merely because he committed the larceny pursuant to or after a breaking or entering by some stranger. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

It is improper, absent the jury’s finding that the property stolen exceeded the diacritical amount set forth in the statute, for the trial judge to accept a verdict of guilty of felonious larceny where the jury has failed to find the defendant guilty of the felonious breaking or entering pursuant to which the larceny occurred. State v. Perry, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982), overruled in part, State v. Mumford, 364 N.C. 394 , 699 S.E.2d 911, 2010 N.C. LEXIS 730 (2010).

Larceny from a person is a felony. State v. Williams, 261 N.C. 172 , 134 S.E.2d 163, 1964 N.C. LEXIS 426 (1964).

Without Regard to Value of Property Stolen. —

Larceny from the person as at common law is a felony without regard to the value of the property stolen. State v. Massey, 273 N.C. 721 , 161 S.E.2d 103, 1968 N.C. LEXIS 652 (1968); State v. Benfield, 278 N.C. 199 , 179 S.E.2d 388, 1971 N.C. LEXIS 958 (1971).

Taking Required. —

In larceny from the person there must be a taking, though the value of the property is immaterial. State v. Parker, 262 N.C. 679 , 138 S.E.2d 496, 1964 N.C. LEXIS 727 (1964).

Evidence that defendant stole shoulder bag from an unattended grocery cart would not support a conviction of larceny from the person, but would support a conviction of misdemeanor larceny. State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656, 1988 N.C. App. LEXIS 43 (1988).

Larceny of any explosive or incendiary device or substance is a felony. State v. Benfield, 278 N.C. 199 , 179 S.E.2d 388, 1971 N.C. LEXIS 958 (1971).

Larceny of a firearm is a felony regardless of the value of the weapon stolen and without regard to whether the larceny was accomplished by means of a felonious breaking or entering. State v. Robinson, 51 N.C. App. 567, 277 S.E.2d 79, 1981 N.C. App. LEXIS 2279 (1981); State v. Boykin, 78 N.C. App. 572, 337 S.E.2d 678, 1985 N.C. App. LEXIS 4328 (1985).

Larceny of Firearms and Other Property. —

Where three firearms, in addition to other property having a value greater than $400.00 (now $1,000), were allegedly stolen in a single transaction, and defendant was properly charged with one count of felonious larceny, the court erred in not dismissing three larceny of firearms charges. State v. Boykin, 78 N.C. App. 572, 337 S.E.2d 678, 1985 N.C. App. LEXIS 4328 (1985).

Receiving Stolen Goods. —

In order for the crime of receiving stolen property to be rendered a felony by subsection (c) without regard to the value of the property, the defendant must have known not only that the property was stolen, but also that the theft was accomplished under circumstances enumerated in subsection (b). State v. Scott, 11 N.C. App. 642, 182 S.E.2d 256, 1971 N.C. App. LEXIS 1603 (1971) (decided under this section as it stood before the 1975 amendment).

VII.Lesser Offenses

Misdemeanor of larceny is a lesser degree of the felony of larceny within the meaning of G.S. 15-170 . State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962); State v. Summers, 263 N.C. 517 , 139 S.E.2d 627, 1965 N.C. LEXIS 1321 (1965).

Misdemeanor larceny is a lesser included offense of felony larceny, which lacks the essential elements of larceny that the property have a value of over $400.00, or that the larceny was from the person. State v. Henry, 57 N.C. App. 168, 290 S.E.2d 775, 1982 N.C. App. LEXIS 2606 (1982).

Larceny is a lesser included offense of armed robbery. State v. White, 322 N.C. 506 , 369 S.E.2d 813, 1988 N.C. LEXIS 472 (1988) (overruling) State v. Hurst, 320 N.C. 589 , 359 S.E.2d 776, 1987 N.C. LEXIS 2356 (1987).

Larceny is a lesser included offense of common-law robbery. State v. Wilfong, 101 N.C. App. 221, 398 S.E.2d 668, 1990 N.C. App. LEXIS 1233 (1990).

Larceny from the person is a lesser included offense of common-law robbery, which differs from common-law robbery in that it lacks the essential element that the victim be put in fear. State v. Henry, 57 N.C. App. 168, 290 S.E.2d 775, 1982 N.C. App. LEXIS 2606 (1982).

Felonious Larceny as Included Offense in Felony-Murder. —

A separate judgment based on a verdict of guilty of felonious larceny was arrested on the ground that the commission of this crime was an essential of and the basis for the conviction of defendant for felony-murder and therefore no additional punishment could be imposed for it as an independent criminal offense. State v. Thompson, 280 N.C. 202 , 185 S.E.2d 666, 1972 N.C. LEXIS 1222 (1972).

Larceny Not Lesser Included Offense of Larceny by Employee. —

Where defendant was charged with larceny by an employee he could not be convicted of the offense of larceny, since the two are wholly separate offenses, and each requires different evidentiary showings. In short, larceny is not a lesser included offense of larceny by an employee. State v. Daniels, 43 N.C. App. 556, 259 S.E.2d 396, 1979 N.C. App. LEXIS 3104 (1979); State v. Brown, 56 N.C. App. 228, 287 S.E.2d 421, 1982 N.C. App. LEXIS 2349 (1982).

Unauthorized Use of Conveyance Is Lesser Included Offense of Larceny. —

All of the essential elements of the crime of unauthorized use of a conveyance, G.S. 14-72.2(a), are included in larceny, and it may be a lesser included offense of larceny where there is evidence to support the charge. State v. Ross, 46 N.C. App. 338, 264 S.E.2d 742, 1980 N.C. App. LEXIS 2814 (1980).

Unauthorized use of a motor vehicle in violation of G.S. 14-72.2 is considered a lesser included offense of larceny, under this section, where there is evidence to support the charge. State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778, 1982 N.C. App. LEXIS 2729 (1982).

VIII.Practice and Procedure
A.Indictment

Required Allegations Generally. —

To convict of felony-larceny, the indictment must allege and the State must prove beyond a reasonable doubt, as an essential element of the crime, that the value of the property exceeded $200 (now $1,000), or that the larceny was from the person, or that the larceny was from a building in violation of G.S. 14-51 , 14-53, 14-54 or 14-57, or that the property involved was an explosive or incendiary device or substance. State v. Benfield, 278 N.C. 199 , 179 S.E.2d 388, 1971 N.C. LEXIS 958 (1971); State v. Corpening, 31 N.C. App. 376, 229 S.E.2d 206, 1976 N.C. App. LEXIS 2005 (1976).

Ownership of Property. —

The indictment in a larceny case must allege a person who has a property interest in the property stolen. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

In a prosecution for larceny the State must prove that the person alleged in the indictment to have a property interest in the property stolen has ownership, meaning title to the property or some special property interest. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

The purpose of the requirement that ownership be alleged in an indictment for larceny is to (1) inform defendant of the elements of the alleged crime, (2) enable him to determine whether the allegations constitute an indictable offense, (3) enable him to prepare for trial and (4) enable him to plead the verdict in bar of subsequent prosecution for the same offense. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

The indictment for larceny must correctly charge the owner or the person in possession of the property stolen. State v. Vawter, 33 N.C. App. 131, 234 S.E.2d 438, 1977 N.C. App. LEXIS 2114 (1977).

An indictment for larceny of property is fatally defective if it fails to allege the ownership of the property in a natural person or a legal entity capable of owning property. State v. Roberts, 14 N.C. App. 648, 188 S.E.2d 610, 1972 N.C. App. LEXIS 2208 (1972); State v. Perkins, 57 N.C. App. 516, 291 S.E.2d 865, 1982 N.C. App. LEXIS 2677 (1982).

It is sufficient if the person alleged in the indictment to be the owner of the property taken has a special property interest, such as that of a bailee or custodian, or otherwise has possession and control of it. State v. Bost, 55 N.C. App. 612, 286 S.E.2d 632, 1982 N.C. App. LEXIS 2242 (1982).

A bill of indictment is fatally defective where it fails to charge the defendant with the larceny from a legal entity capable of owning property. State v. Strange, 58 N.C. App. 756, 294 S.E.2d 403, 1982 N.C. App. LEXIS 2825 (1982).

Where indictment did not allege that “Metropolitan YMCA t/d/b/a Hayes-Taylor YMCA Branch” was a corporation or other legal entity capable of owning property, nor did the name indicate that it was a corporation or a natural person, the larceny count in such indictment was fatally defective. State v. Perkins, 57 N.C. App. 516, 291 S.E.2d 865, 1982 N.C. App. LEXIS 2677 (1982).

Indictment lacking an indication of the victim’s legal ownership of the property at issue was insufficient on a larceny charge because the State is required to prove ownership and a proper indictment must identify as victim a legal entity capable of owning property. State v. Norman, 149 N.C. App. 588, 562 S.E.2d 453, 2002 N.C. App. LEXIS 268 (2002).

Abbreviation “Inc.” identifying the victim in a larceny indictment imported the entity’s ability to own property, and thus, the indictment was sufficient; the fact of incorporation did not need to be alleged where the corporate name was correctly set out in the indictment. State v. Cave, 174 N.C. App. 580, 621 S.E.2d 299, 2005 N.C. App. LEXIS 2479 (2005).

Indictment charging defendant with larceny was fatally defective because charged defendant with larceny of “the personal property of a country club”; the term “country club” had not been recognized by statute or by the courts as sufficient for identifying an entity as being capable of owning property, and thus, the identification in the indictment was insufficient. State v. Garner, 252 N.C. App. 393, 798 S.E.2d 755, 2017 N.C. App. LEXIS 180 (2017).

Indictment for felonious larceny is fatally defective when it fails to allege that property was taken from an entity capable of owning property. State v. Garner, 252 N.C. App. 393, 798 S.E.2d 755, 2017 N.C. App. LEXIS 180 (2017).

Indictment for felony larceny was valid on its face because the name of the property owner named in the indictment was sufficient itself to import an association or a corporation capable of owning property. State v. Speas, 265 N.C. App. 351, 827 S.E.2d 548, 2019 N.C. App. LEXIS 387 (2019).

Insufficient to Charge Property to be That of Servant. —

In an indictment for larceny, it is not sufficient to charge the stolen property to be the property of one who is a mere servant, although he may have had actual possession at the time of the larceny; because having no property, his possession is the possession of his master. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

Description of Property. —

The description in a warrant or bill of indictment of the goods alleged to have been stolen is sufficient if from it defendant can have a fair and reasonable opportunity to prepare his defense, can avail himself of his conviction or acquittal as a bar to subsequent prosecution for the same offense, and the court is enabled, on conviction, to pronounce sentence according to law. State v. Fuller, 13 N.C. App. 193, 185 S.E.2d 312, 1971 N.C. App. LEXIS 1189 (1971).

Whether the description of property in a larceny indictment is sufficient or so defective as to be void depends on the certainty educed by the description. The property alleged to have been taken must be described with “reasonable certainty.” State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284, 1977 N.C. App. LEXIS 2187 (1977).

Reasonable certainty is attained when the description reasonably informs the accused of the transaction meant, when it protects the accused in the event of subsequent prosecutions for the same offense, when it enables the court to see that the property described is the subject of larceny, and when it enables the jury to say that the article proved to be stolen is the same as the one described. State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284, 1977 N.C. App. LEXIS 2187 (1977).

Same — Animals. —

When describing an animal in an indictment for larceny, it is sufficient to refer to it by the name commonly applied to animals of its kind without further description. A specific description of the animal, such as its color, age, weight, sex, markings or brand, is not necessary. State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284, 1977 N.C. App. LEXIS 2187 (1977).

The general term “hogs” in a larceny indictment sufficiently described the animals taken so as to identify them with reasonable certainty. State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284, 1977 N.C. App. LEXIS 2187 (1977).

Failure to State that Goods Were Stolen. —

An indictment charging defendant with felonious possession of stolen goods, which fails to state that the goods were stolen, is not thus fatally defective. State v. Williams, 65 N.C. App. 373, 309 S.E.2d 266, 1983 N.C. App. LEXIS 3501 (1983).

Value of Property. —

Where neither larceny from the person nor by breaking and entering is involved, an indictment for the felony of larceny must charge, as an essential element of the crime, that the value of the stolen goods was more than $200 (now $1,000). State v. Jones, 275 N.C. 432 , 168 S.E.2d 380, 1969 N.C. LEXIS 412 (1969).

Same — Misdemeanor. —

Where the indictment charges the larceny of $200 (now $1,000) or less and does not charge that the larceny was from a building by breaking or entering, or by any other means of such nature as to make the larceny a felony, the indictment charges only a misdemeanor, and a sentence on the count in excess of two years must be vacated and the cause remanded for proper judgment. State v. Fowler, 266 N.C. 667 , 147 S.E.2d 36, 1966 N.C. LEXIS 1415 (1966).

Where an indictment charges larceny of property of the value of $200 (now $1,000) or less, but contains no allegation the larceny was from a building by breaking and entering, the crime charged is a misdemeanor for which the maximum prison sentence is two years, notwithstanding all the evidence tends to show the larceny was accomplished by means of a felonious breaking and entering. State v. Jones, 275 N.C. 432 , 168 S.E.2d 380, 1969 N.C. LEXIS 412 (1969).

Failure to Allege Felonious Larceny. —

Where indictment for larceny failed to properly allege felonious larceny, a conviction for felonious larceny could not stand; however, since the indictment clearly charged misdemeanor larceny, the jury verdict would be considered a verdict of guilty of misdemeanor larceny, and the cause would be remanded for a proper sentence. State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Indictment charging that defendant “unlawfully and willfully did feloniously steal, take and carry away” seven dollars in violation of G.S. 14-70 and subsection (a) of this section failed to allege felonious larceny, and charged only misdemeanor larceny. State v. Wilson, 315 N.C. 157 , 337 S.E.2d 470, 1985 N.C. LEXIS 2002 (1985).

Felony Irrespective of Value. —

In order to properly charge the felony of larceny of property, without regard to the value of the property, the bill of indictment must contain one or more of the elements set out in subsection (b) of this section. State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749, 1970 N.C. App. LEXIS 1309 (1970).

Same — Larceny from the Person. —

Solicitors would do well to include in bills of indictment the words “from the person” if and when they intend to prosecute for the felony of larceny from the person. State v. Bowers, 273 N.C. 652 , 161 S.E.2d 11, 1968 N.C. LEXIS 644 (1968).

A person may not be convicted and punished for the felony of larceny from the person when the indictment on which he is tried fails to allege that the larceny was from the person. State v. Benfield, 278 N.C. 199 , 179 S.E.2d 388, 1971 N.C. LEXIS 958 (1971).

Variance — Value. —

Where the offense charged is that of felonious larceny, in order to distinguish the offense of felonious larceny from misdemeanor larceny, it is necessary to show that the value of the property stolen was more than $200 (now $1,000); this having been done, a difference between the value alleged in the bill of indictment and the value shown by the evidence is immaterial. State v. McCall, 12 N.C. App. 85, 182 S.E.2d 617, 1971 N.C. App. LEXIS 1289 , cert. denied, 279 N.C. 513 , 183 S.E.2d 689, 1971 N.C. LEXIS 877 (1971).

Same — Ownership. —

There was no fatal variance between indictment and proof where the indictment charged the larceny of money from “Piggly Wiggly Store #7,” and witnesses referred to the store as “Piggly Wiggly in Wilson,” “Piggly Wiggly Store,” “Piggly Wiggly,” and “Piggly Wiggly Wilson, Inc.,” there being no evidence that any other Piggly Wiggly store existed in the city or county, and there being nothing to indicate that the defendants, witnesses or jurors were confused by the difference in names. State v. McCall, 12 N.C. App. 85, 182 S.E.2d 617, 1971 N.C. App. LEXIS 1289 , cert. denied, 279 N.C. 513 , 183 S.E.2d 689, 1971 N.C. LEXIS 877 (1971).

There was no fatal variance in a larceny indictment placing ownership of stolen tools in a corporation and evidence that, although the tools were personally owned by individual mechanics working for the corporation, they were left overnight on the corporation’s premises and were in the possession of the corporation at the time of the theft. State v. Dees, 14 N.C. App. 110, 187 S.E.2d 433, 1972 N.C. App. LEXIS 2049 (1972).

There is no fatal variance in an indictment for larceny where the indictment alleges that two persons had a property interest in the stolen property when in fact, one was the bailee or special owner of the property, and the other had legal title to the property, since the property may be laid in either the owner, the special owner or both. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

In a prosecution for larceny, if the person alleged in the indictment to have a property interest in the stolen property is not the owner or special owner of it, there is a fatal variance entitling defendant to a nonsuit. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

Because the indictment included all the required elements alleging defendant stole the victim’s television and the earrings from her residence, the indictment properly alleged all the elements of larceny; and any allegations in the indictment that were not necessary to support the larceny charge, including the ownership of the laptop, the camera, and the gaming system were deemed to be surplusage; thus, the trial court properly denied defendant’s motion to dismiss the larceny charge based upon an alleged fatal variance between the indictment and the evidence presented at trial. State v. Bacon, 254 N.C. App. 463, 803 S.E.2d 402, 2017 N.C. App. LEXIS 553 (2017).

Same — Description of Property. —

Where a larceny indictment described the stolen property as “a 1970 Plymouth, Serial # PM14360F239110, the personal property of George Edison Biggs,” and the evidence showed the taking by defendant of a 1970 Plymouth which was owned by George Edison Biggs but there was no evidence as to the serial number, the variance was not fatal. State v. Coleman, 24 N.C. App. 530, 211 S.E.2d 542, 1975 N.C. App. LEXIS 2421 (1975).

A material element in an indictment charging the offense of larceny is the identification of the “personal property” taken and carried away. Thus, a variance in the indictment and proof at trial in this regard is a material variance; further, such is a fatal variance if it hampers defendant’s ability to defend himself on the charge at trial and does not insure that defendant will be protected from another prosecution for the same offense. State v. Simmons, 57 N.C. App. 548, 291 S.E.2d 815, 1982 N.C. App. LEXIS 2664 (1982).

Where defendant was charged in larceny count of indictment with taking eight heavy duty freezers, serial numbers of which were listed, the personal property of Southern Food Service, Inc., in the custody and possession of Patterson Storage Warehouse Company, Inc., but the officers’ inventory of the property seized described a 21 cubic foot freezer of a different serial number, even though there was evidence that the name brand, general appearance, and serial number of the recovered freezer matched one of those on the company’s inventory, absent proof at trial that defendant took any of the freezers identified by the serial numbers in the indictment, there was a fatal variance in the indictment and proof at trial on the larceny count and defendant’s motion to dismiss that charge should have been granted. State v. Simmons, 57 N.C. App. 548, 291 S.E.2d 815, 1982 N.C. App. LEXIS 2664 (1982).

An indictment charging that defendant at a specified time and place did “with force and arms” feloniously steal, take, and carry away from a person specified a sum of money, charges the crime of larceny and not that of robbery. State v. Acrey, 262 N.C. 90 , 136 S.E.2d 201, 1964 N.C. LEXIS 591 (1964).

“Steal” Synonymous with “Felonious Intent” in Warrant Charging Misdemeanor Larceny. —

The word “steal” as used in a warrant charging misdemeanor larceny encompassed and was synonymous with the required “felonious intent” and was therefore sufficient to withstand the defendant’s motion to quash. State v. Wesson, 16 N.C. App. 683, 193 S.E.2d 425, 1972 N.C. App. LEXIS 1805 (1972), cert. denied, 282 N.C. 675 , 194 S.E.2d 155, 1973 N.C. LEXIS 1150 (1973).

“Larceny by trick” is not a crime separate and distinct from common-law larceny, but the term is often used to describe a larceny when possession was obtained by trick or fraud. It is not necessary that the manner in which the stolen property was taken and carried away be alleged, and the words “by trick” are not required in an indictment charging larceny. State v. Harris, 35 N.C. App. 401, 241 S.E.2d 370, 1978 N.C. App. LEXIS 2982 (1978).

Felony Habitual Larceny. —

In a case in which defendant was found guilty of felony habitual larceny and pled guilty to attaining habitual felon status, while reserving the right to appeal the felony habitual larceny conviction, the appellate court agreed with defendant that his indictment for felony habitual larceny was facially invalid because an attempted larceny conviction is not an eligible count of larceny to support an indictment for felony habitual larceny under G.S. 14-72(b)(6). State v. Irvins, 277 N.C. App. 101, 858 S.E.2d 300, 2021- NCCOA-143, 2021 N.C. App. LEXIS 160 (2021).

Because attempted misdemeanor larceny does not fit within any of the three statutory categories set forth in G.S. 14-72(b)(6), attempted larceny is not an eligible count of larceny to support an indictment for felony habitual larceny. State v. Irvins, 277 N.C. App. 101, 858 S.E.2d 300, 2021- NCCOA-143, 2021 N.C. App. LEXIS 160 (2021).

Indictment Held Sufficient. —

See Doss v. North Carolina, 252 F. Supp. 298, 1966 U.S. Dist. LEXIS 7799 (M.D.N.C. 1966).

The indictment charged store-breaking, larceny and receiving in the language of the statute under which it was drawn, G.S. 14-54 and this section, and contained the elements of the offense intended to be charged, and sufficiently informed the petitioner of the crime with which he was charged so that he could adequately prepare his defense and could plead the judgment as a bar to any subsequent prosecution for the same offense. Nothing more was required. Harris v. North Carolina, 320 F. Supp. 770, 1970 U.S. Dist. LEXIS 12236 (M.D.N.C. 1970), aff'd, 435 F.2d 1305, 1971 U.S. App. LEXIS 12507 (4th Cir. 1971).

While it is error for the court to permit the jury to convict based on some abstract theory not supported by the bill of indictment, indictment charging defendant with larceny pursuant to a burglary was sufficient to uphold defendant’s conviction for larceny pursuant to a breaking or entering, as felonious breaking or entering is a lesser degree of the offense of second degree burglary, and G.S. 15-70 (see now G.S. 15A-736 ) provides that upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a lesser degree of the same crime. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

Indictment charging felonious larceny committed pursuant to burglary and instructions thereon were sufficient to charge the defendant with felonious larceny committed pursuant to breaking or entering. State v. Eldridge, 83 N.C. App. 312, 349 S.E.2d 881, 1986 N.C. App. LEXIS 2694 (1986).

An indictment that alleged larceny was committed “pursuant to a violation of G.S. 14-51 ” was in the language of G.S. 14-72(b) and was sufficient to apprise defendant that he was charged with larceny punishable as a felony because it was committed pursuant to a burglary. State v. Mandina, 91 N.C. App. 686, 373 S.E.2d 155, 1988 N.C. App. LEXIS 911 (1988).

B.Evidence

Circumstantial Evidence Admissible. —

All of the essential elements of larceny must be established by sufficient, competent evidence; and the essential facts can be proved by circumstantial evidence where the circumstance raises a logical inference of the fact to be proved and not just a mere suspicion or conjecture. State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284, 1977 N.C. App. LEXIS 2187 (1977).

Inference of Intent to Keep Permanently. —

In a prosecution for felonious larceny of a car, the fact that the car had not yet been returned or even located by the police at the time of trial was sufficient to raise an inference in favor of the state that the defendant did in fact intend to keep the car permanently when he took it. State v. Jackson, 75 N.C. App. 294, 330 S.E.2d 668, 1985 N.C. App. LEXIS 3627 (1985).

Defendant’s taking and subsequent abandonment of vehicle, which put it beyond his power to return and indicated a complete lack of concern as to whether the owner ever recovered the truck, constituted sufficient evidence of an intent to permanently deprive the owner of the property so as to support conviction of larceny. State v. Barts, 316 N.C. 666 , 343 S.E.2d 828, 1986 N.C. LEXIS 2395 (1986).

Inference from Pawning on Different Occasions. —

The fact that defendant pawned silver stolen from his mother’s house, where he also lived, on different occasions, standing alone, was insufficient to support an inference that he took it on separate occasions. State v. Froneberger, 81 N.C. App. 398, 344 S.E.2d 344, 1986 N.C. App. LEXIS 2303 (1986).

Tracing to Defendant of Goods Lost from Store. —

It is always competent in a prosecution for breaking and entering and larceny to show all of the goods lost from a store and to trace some or all of the articles to a defendant. State v. Richardson, 8 N.C. App. 298, 174 S.E.2d 77, 1970 N.C. App. LEXIS 1541 (1970); State v. Eppley, 14 N.C. App. 314, 188 S.E.2d 758, 1972 N.C. App. LEXIS 2124 , aff'd in part and rev'd in part, 282 N.C. 249 , 192 S.E.2d 441, 1972 N.C. LEXIS 932 (1972).

Evidence Held Admissible. —

In a prosecution for larceny and receiving of paper, evidence of size, weight, quantity and value of the paper, from experienced witnesses, who based their opinions on personal observation, is admissible to show a value of more than $50 (now $1,000) to establish a felony under this section. State v. Weinstein, 224 N.C. 645 , 31 S.E.2d 920, 1944 N.C. LEXIS 446 (1944), cert. denied, 324 U.S. 849, 65 S. Ct. 689, 89 L. Ed. 1410, 1945 U.S. LEXIS 2421 (1945).

Trial judge did not err in denying defendant’s motion to dismiss the charges of first degree burglary, felonious larceny, and felonious possession of stolen goods; the presence of defendant’s fingerprints on both sides of a window to a room in which there was no apparent reason for his presence and from which a television had recently been taken, was evidence sufficient to support a conclusion with respect to the charges against the defendant. State v. Williams, 95 N.C. App. 627, 383 S.E.2d 456, 1989 N.C. App. LEXIS 812 (1989).

Evidence was sufficient to deny defendant’s motion to dismiss and to present the case to the jury where defendant was a passenger in a car when he and others were detained by police, there were items from several stores in the car but none of the people in the car could produce receipts, one of the co-defendants testified that he told an investigating officer that defendant acted as a lookout while the others were stealing from the stores, and defendant provided contradictory testimony both that he was unaware of his co-defendants taking any items from the store and that he knew his co-defendants were taking merchandise. State v. Cave, 174 N.C. App. 580, 621 S.E.2d 299, 2005 N.C. App. LEXIS 2479 (2005).

Defendant’s motion to dismiss was properly denied because the evidence was sufficient to convict him of larceny of a firearm as the evidence supported the inference that he intended to permanently deprive the victim of her pistol because, even assuming that defendant initially secured possession of the pistol in an effort to prevent injury, the jury could infer that defendant, a former marine, knew or should have known, upon handling the firearm, that it was not capable of discharging a projectile as it was unloaded, but, instead of returning the weapon, he fled the scene with the pistol; and he attempted to conceal the firearm in the spare tire well of his vehicle and feigned ignorance of the firearm in his vehicle after being apprehended. State v. Rogers, 255 N.C. App. 413, 805 S.E.2d 172, 2017 N.C. App. LEXIS 730 (2017).

Evidence Sufficient. —

Evidence was held amply sufficient to support verdict of guilty of feloniously breaking and entering and larceny by means of such felonious breaking and entering in State v. Majors, 268 N.C. 146 , 150 S.E.2d 35, 1966 N.C. LEXIS 1145 (1966).

Evidence held sufficient to show a present intent on the part of defendant to take property belonging to another and convert it to his own use. State v. Thompson, 8 N.C. App. 313, 174 S.E.2d 130, 1970 N.C. App. LEXIS 1547 (1970).

Nonsuit was properly denied upon proof of exercise of control over stolen goods by (1) offer of sale, (2) rental of warehouse space for storage of the goods, and (3) borrowing money upon pledge of the stolen goods. State v. Carter, 20 N.C. App. 461, 201 S.E.2d 500, 1974 N.C. App. LEXIS 2467 , cert. denied, 285 N.C. 87 , 203 S.E.2d 60, 1974 N.C. LEXIS 916 (1974).

Where defendant was seen leaving victim’s apartment with goods resembling those later reported stolen, and the State presented substantial evidence from which the jury could infer that defendant took property belonging to victim, the court properly denied the motion to dismiss charge of felonious larceny on grounds that the State failed to establish that the property in his possession was that stolen from victim. State v. McCoy, 79 N.C. App. 273, 339 S.E.2d 419, 1986 N.C. App. LEXIS 1988 (1986).

Evidence held sufficient to establish felonious possession of stolen property. State v. Brown, 81 N.C. App. 622, 344 S.E.2d 817, 1986 N.C. App. LEXIS 2355 (1986).

Where the clerk at a convenience store had just opened the cash register, had her hand in the cash drawer, and was in the process of making change for the defendant when he reached in and grabbed the money, evidence was sufficient to support the defendant’s conviction for larceny from the person. State v. Buckom, 328 N.C. 313 , 401 S.E.2d 362, 1991 N.C. LEXIS 181 (1991).

There was sufficient circumstantial evidence to support convictions of breaking and entering and larceny where defendant’s car was seen at a burglary scene with its tailgate open, pulled up to the door of the house, a coffee table from the house was in the car, and a witness placed defendant next door to the crime scene on the day the offenses occurred; however, the trial court improperly entered judgment on possession of stolen property, since defendant was convicted of larceny and possession of the same property which he stole. State v. Ethridge, 168 N.C. App. 359, 607 S.E.2d 325, 2005 N.C. App. LEXIS 253 (2005), aff'd, 360 N.C. 359 , 625 S.E.2d 777, 2006 N.C. LEXIS 17 (2006).

While defendant entered a law office with implied consent from the firm, that consent was void ab initio when defendant went into areas of the firm that were not open to the public so that defendant could commit theft; thus, defendant’s convictions for felonious breaking and entering and felonious larceny were supported by sufficient evidence. State v. Brooks, 178 N.C. App. 211, 631 S.E.2d 54, 2006 N.C. App. LEXIS 1334 (2006).

Evidence that a man matching defendant’s description was seen leaning against the company truck, which was known to be in defendant’s possession on the date of the larceny; that the truck and the man were seen outside the shed while the shed door was partway open; and that the company truck and at least some of the equipment stolen from the storage building were recovered a few days later at defendant’s residence was sufficient to support defendant’s convictions for breaking or entering and larceny. State v. Milligan, 192 N.C. App. 677, 666 S.E.2d 183, 2008 N.C. App. LEXIS 1654 (2008).

Evidence that defendant took the victim’s vehicle and abandoned it in another state, placing the car beyond defendant’s power to return and allowing an inference that defendant intended to permanently deprive the victim of the car, was sufficient to support defendant’s conviction or felonious larceny of a motor vehicle. State v. Allen, 193 N.C. App. 375, 667 S.E.2d 295, 2008 N.C. App. LEXIS 1820 (2008).

Trial court did not err in denying defendant’s motion to dismiss the charge of felonious possession of stolen property for insufficient evidence because the State’s evidence was sufficient to satisfy the $1,000 fair market value statutory minimum and to support a felonious possession of stolen goods conviction when the “reasonable selling price” of a DVD player at the time it was stolen, and in like-new condition, was over $1,300; the jury did not speculate as to the value of the DVD player but merely reached a different conclusion than that advanced by defendant because the jury could have reasonably concluded that the DVD player was worth $1,300 and was merely missing a necessary component. State v. Davis, 198 N.C. App. 146, 678 S.E.2d 709, 2009 N.C. App. LEXIS 1158 (2009).

Sufficient evidence was presented that a pickup truck was worth more than $1000 because the State of North Carolina presented the testimony of three witnesses, the truck owner, a police officer, and a police sergeant, who each testified that they believed the pickup truck was worth more than $1000; fact that defendant presented witnesses who valued the pickup truck below $1000 was immaterial because the contradictions and discrepancies did not warrant dismissal of the case but were for the jury to resolve. State v. Clark, 208 N.C. App. 388, 702 S.E.2d 324, 2010 N.C. App. LEXIS 2435 (2010).

Evidence was sufficient to support a jury’s verdict of guilty of felonious possession of stolen goods, as the jury could have found beyond a reasonable doubt that defendant knew the goods had been stolen in violation of G.S. 14-54 based upon defendant’s own statements to a detective that the man who provided the stolen property to defendant had made a “score” from a barber shop. State v. Tanner, 364 N.C. 229 , 695 S.E.2d 97, 2010 N.C. LEXIS 423 (2010).

Where the victim testified that $500 in cash and a laptop computer valued at $600 were taken from his home, the evidence was sufficient to support defendant’s conviction for felonious larceny and the trial court did not err in failing to instruct the jury on the lesser included charge of misdemeanor larceny. State v. Sergakis, 223 N.C. App. 510, 735 S.E.2d 224, 2012 N.C. App. LEXIS 1301 (2012).

Evidence was sufficient to support defendant’s attempted felony larceny charge because the evidence presented by the prosecution at trial tended to show that defendant cut the connections of an air-conditioning (A/C) unit, loaded the A/C unit into a trailer behind defendant’s vehicle, and drove away from the mobile home of the A/C unit’s owner with the A/C unit in tow. When defendant was stopped, defendant was far enough from the mobile home that it could not be seen. State v. Primus, 227 N.C. App. 428, 742 S.E.2d 310, 2013 N.C. App. LEXIS 533 (2013).

Evidence allowed a reasonable inference that defendant participated in the robbery and larceny of the victim’s motorcycle, and that the victim was killed during that robbery and larceny, and thus the State presented substantial evidence to allow the jury to draw the inference that defendant was the perpetrator of robbery with a dangerous weapon and larceny, and his motion to dismiss was properly denied. State v. Stroud, 252 N.C. App. 200, 797 S.E.2d 34, 2017 N.C. App. LEXIS 134 (2017).

Sufficient substantial evidence showed defendant personally committed felonious breaking and entering, larceny, and misdemeanor injury to real property because (1) witnesses saw defendant drive a car to the victim’s apartment, (2) defendant had no permission to be there, (3) a witness saw a television in the car’s trunk, (4) televisions were stolen from the apartment, and, (5) when spoken to, defendant acted startled, slammed the trunk, and drove away. State v. Webb, 258 N.C. App. 361, 812 S.E.2d 182, 2018 N.C. App. LEXIS 227 (2018).

Evidence Insufficient. —

Where the State’s evidence was that $400 was stolen, and defendant testified that she received $420 by gift, and that she stole nothing, there was no evidence from which the jury could have found the defendant guilty of larceny of a value of $200 (now $1,000) or less. State v. Summers, 263 N.C. 517 , 139 S.E.2d 627, 1965 N.C. LEXIS 1321 (1965).

There was insufficient evidence from which the jury could find that defendant committed the larceny where no fingerprints were taken linking the defendant to the larceny, no effort was made to determine whether the footprints leading from the home matched the defendant’s footprints, and where clearly defendant never had actual possession of the stolen merchandise. State v. McKinney, 25 N.C. App. 283, 212 S.E.2d 707, 1975 N.C. App. LEXIS 2240 (1975).

In a prosecution for larceny of an automobile, owner’s testimony that if he had been planning to sell the automobile he would not have sold it for less than $2,000 was incompetent to show value, and where there was no evidence of the value of the stolen automobile, the jury’s verdict of guilty of felonious larceny must be treated as a verdict of guilty of misdemeanor larceny. State v. Rick, 54 N.C. App. 104, 282 S.E.2d 497, 1981 N.C. App. LEXIS 2808 (1981).

In a proceeding in which juvenile was charged with being a delinquent child in that she unlawfully, willfully, and feloniously possessed a vehicle, knowing and having reasonable grounds to believe it to have been feloniously stolen, evidence which tended to show that juvenile was a passenger in the stolen vehicle, having accepted a ride to Florida with some friends, and that at some point while en route she learned that the vehicle was stolen, was not sufficient to withstand a motion to dismiss, as there was no evidence linking juvenile to the theft or tending to show that she had control or could have exercised control over the vehicle. In re Dulaney, 74 N.C. App. 587, 328 S.E.2d 904, 1985 N.C. App. LEXIS 3523 (1985).

Defendant’s unexplained presence in a stolen vehicle, as a passenger, in such an intoxicated state that he had earlier passed out, was not sufficient to sustain a conviction for felonious possession of stolen property where the State’s evidence was not sufficient to show that defendant had control or could have exercised control over the vehicle, and the evidence as to defendant’s knowledge that the vehicle was stolen was unclear. State v. Bartlett, 77 N.C. App. 747, 336 S.E.2d 100, 1985 N.C. App. LEXIS 4393 (1985).

Evidence held insufficient to establish felonious possession of stolen goods. State v. Allen, 79 N.C. App. 280, 339 S.E.2d 76, 1986 N.C. App. LEXIS 1990 , aff'd, 317 N.C. 329 , 344 S.E.2d 789, 1986 N.C. LEXIS 2792 (1986).

C.Presumption from Possession of Recently Stolen Property

Constitutionality. —

Application of the doctrine of possession of recently stolen property is not unconstitutional. State v. McNeill, 54 N.C. App. 675, 284 S.E.2d 206, 1981 N.C. App. LEXIS 2915 (1981).

When Presumption Arises. —

If the circumstances are such as to exclude the intervening agency of others between the theft and the recent possession of stolen goods, then such recent possession may afford presumptive evidence that the person in possession is the thief. State v. Foster, 268 N.C. 480 , 151 S.E.2d 62, 1966 N.C. LEXIS 1238 (1966); State v. Cotten, 2 N.C. App. 305, 163 S.E.2d 100, 1968 N.C. App. LEXIS 917 (1968).

The principle of law known as recent possession of stolen property itself indicates the conditions under which it operates, and to bring it into play there must be proof of three things: (1) That the property described in the indictment was stolen, the mere fact of finding one man’s property in another man’s possession raising no presumption that the latter stole it; (2) that the property shown to have been possessed by accused was the stolen property; and (3) that the possession was recently after the larceny, since mere possession of stolen property raises no presumption of guilt. State v. Foster, 268 N.C. 480 , 151 S.E.2d 62, 1966 N.C. LEXIS 1238 (1966); State v. Black, 14 N.C. App. 373, 188 S.E.2d 634, 1972 N.C. App. LEXIS 2134 (1972); State v. Solomon, 24 N.C. App. 527, 211 S.E.2d 478, 1975 N.C. App. LEXIS 2420 (1975); State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

The applicability of the doctrine of the inference of guilt derived from the recent possession of stolen goods depends upon the circumstance and character of the possession. It applies only when the possession is of a kind which manifests that the stolen goods came to the possessor by his own act or with his undoubted concurrence, and so recently and under such circumstances as to give reasonable assurance that such possession could not have been obtained unless the holder was himself the thief. State v. Foster, 268 N.C. 480 , 151 S.E.2d 62, 1966 N.C. LEXIS 1238 (1966).

When goods are stolen and one is found in possession so soon thereafter that he could not have reasonably gotten the possession unless he had stolen them himself, the law presumes he was the thief. State v. Solomon, 24 N.C. App. 527, 211 S.E.2d 478, 1975 N.C. App. LEXIS 2420 (1975).

The presumption spawned by possession of recently stolen property arises when, and only when, the State shows beyond a reasonable doubt that the property described in the indictment was stolen; the stolen goods were found in defendant’s custody and subject to his control and disposition to the exclusion of others, though not necessarily found in defendant’s hands or on his person so long as he had the power and intent to control the goods; and the possession was recently after the larceny, mere possession of stolen property being insufficient to raise the presumption of guilt. State v. Maines, 301 N.C. 669 , 273 S.E.2d 289, 1981 N.C. LEXIS 1021 (1981); State v. Joseph, 59 N.C. App. 436, 297 S.E.2d 173, 1982 N.C. App. LEXIS 3162 (1982); State v. Hamlet, 316 N.C. 41 , 340 S.E.2d 418, 1986 N.C. LEXIS 1888 (1986).

When there is evidence that a building has been broken into and entered and thereby the property in question has been stolen, the possession of such stolen property recently after the larceny raises presumptions that the possessor is guilty of the larceny and also of the breaking and entering. State v. Maines, 301 N.C. 669 , 273 S.E.2d 289, 1981 N.C. LEXIS 1021 (1981).

The doctrine of possession of recently stolen property, a rule of law which allows the jury to presume that the possessor of stolen property is guilty of larceny, can arise only when the State proves three things beyond a reasonable doubt: (1) That the property described in the indictment was stolen; (2) that the defendant was found in possession of the stolen property; and (3) that the defendant’s possession was recently after the larceny. State v. Callahan, 83 N.C. App. 323, 350 S.E.2d 128, 1986 N.C. App. LEXIS 2698 (1986).

Where stolen property is of a type not normally or frequently traded through lawful channels, the inference of guilt attendant on its possession will survive a longer time interval, since under those circumstances it is more likely that the defendant acquired the property by his own acts and to the exclusion of the intervening agency of others. State v. Callahan, 83 N.C. App. 323, 350 S.E.2d 128, 1986 N.C. App. LEXIS 2698 (1986).

Commercial Restaurant Equipment. —

A period of 11 or 12 days between the larceny of commercial restaurant equipment, which is not a kind of property which is usually or frequently traded through lawful retail channels, and defendant’s possession thereof was not so long as to preclude application of the doctrine of possession of recently stolen property. State v. Callahan, 83 N.C. App. 323, 350 S.E.2d 128, 1986 N.C. App. LEXIS 2698 (1986).

Purpose Is in Locating Thief. —

The presumption of recent possession is not in aid of identifying or locating the stolen property, but in tracking down the thief upon its discovery. State v. Foster, 268 N.C. 480 , 151 S.E.2d 62, 1966 N.C. LEXIS 1238 (1966); State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

Larceny Must Be Established. —

Before the presumption of guilt stemming from possession of recently stolen property can attach, the State must show by positive or circumstantial evidence a prima facie larceny of the goods. State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284, 1977 N.C. App. LEXIS 2187 (1977).

Identity of the fruits of the crime must be established before the presumption of recent possession can apply. State v. Foster, 268 N.C. 480 , 151 S.E.2d 62, 1966 N.C. LEXIS 1238 (1966); State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

Possession of stolen property shortly after the time of theft raises a presumption of the possessor’s guilt of larceny of such property but the presumption does not apply until the identity of the property is established. State v. Bembery, 33 N.C. App. 31, 234 S.E.2d 33, 1977 N.C. App. LEXIS 2092 (1977).

Control of Stolen Property. —

The principle of law known as recent possession of stolen property is usually applied to possession which involves custody about the person, but it is not necessarily so limited. It may be of things elsewhere deposited, but under the control of a party. It may be in a storeroom or barn when the party has the key. In short, it may be in any place where it is manifest it must have been put by the act of the party or his undoubted concurrence. State v. Foster, 268 N.C. 480 , 151 S.E.2d 62, 1966 N.C. LEXIS 1238 (1966).

Possession of part of recently stolen property under some circumstances warrants the inference that the accused stole all of it. The inference of guilt is not always repelled by the fact that only part of the recently stolen property is found in the possession of the accused. State v. Boomer, 33 N.C. App. 324, 235 S.E.2d 284, 1977 N.C. App. LEXIS 2187 (1977).

Strength of Presumption Depends on Lapse of Time and Other Circumstances. —

The possession of stolen property recently after the theft, and under circumstances excluding the intervening agency of others, affords presumptive evidence that the person in possession is himself the thief, and the evidence is stronger or weaker as the possession is nearer to or more distant from the time of the commission of the offense. State v. Cotten, 2 N.C. App. 305, 163 S.E.2d 100, 1968 N.C. App. LEXIS 917 (1968).

The presumption that the possessor is the thief, which arises from the possession of stolen goods, is strong or weak as the time elapsing between the stealing of the goods and the finding of them in the possession of the defendant is short or long. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

It is the general rule in this State that one found in the unexplained possession of recently stolen property is presumed to be the thief. This is a factual presumption and is strong or weak depending on circumstances — the time between the theft and the possession, the type of property involved and its legitimate availability in the community. State v. Hagler, 32 N.C. App. 444, 232 S.E.2d 712, 1977 N.C. App. LEXIS 1968 , cert. denied, 292 N.C. 642 , 235 S.E.2d 63, 1977 N.C. LEXIS 1161 (1977).

The presumption is strong or weak depending upon the circumstances of the case and the length of time intervening between the larceny of the goods and the discovery of them in defendant’s possession. State v. Maines, 301 N.C. 669 , 273 S.E.2d 289, 1981 N.C. LEXIS 1021 (1981).

Burden of Proof Not Shifted. —

Proof of recent possession by the State does not shift the burden of proof to the defendant but the burden remains with the State to demonstrate defendant’s guilt beyond a reasonable doubt. State v. Fair, 291 N.C. 171 , 229 S.E.2d 189, 1976 N.C. LEXIS 944 (1976).

Mullany v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), is inapposite to the so-called recent possession doctrine because that doctrine does not shift the burden of proof to the defendant. The doctrine only allows the jury to infer that the defendant stole the goods, because the State first proved that the stolen goods were in defendant’s possession so soon after the theft that it was unlikely that he obtained them honestly. The doctrine is only an evidentiary inference shifting to the defendant the burden of going forward with evidence. Evidentiary inferences and presumptions such as this are unaffected by Mullaney. State v. Hales, 32 N.C. App. 729, 233 S.E.2d 601, 1977 N.C. App. LEXIS 2048 , cert. denied, 292 N.C. 732 , 235 S.E.2d 782, 1977 N.C. LEXIS 1196 (1977).

Presumption Is Evidential Fact. —

The presumption, however, is one of fact only and is to be considered by the jury merely as an evidential fact along with other evidence in determining the defendant’s guilt. State v. Foster, 268 N.C. 480 , 151 S.E.2d 62, 1966 N.C. LEXIS 1238 (1966).

The presumption that the possessor is the thief, which arises from the possession of stolen goods, is to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant’s guilt. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976); State v. Maines, 301 N.C. 669 , 273 S.E.2d 289, 1981 N.C. LEXIS 1021 (1981).

The presumption that the possessor is the thief which arises from the possession of stolen goods is a presumption of fact and not of law. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

The presumption of recent possession, or inference as it is more properly called, is one of fact and not of law. The inference derived from recent possession is to be considered by the jury merely as an evidentiary fact, along with the other evidence in the case, in determining whether the State has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant’s guilt. State v. Fair, 291 N.C. 171 , 229 S.E.2d 189, 1976 N.C. LEXIS 944 (1976).

However, recent possession is not evidence of guilt; it just raises an inference that will permit the case to go to the jury under proper instructions from the court. State v. Greene, 289 N.C. 578 , 223 S.E.2d 365, 1976 N.C. LEXIS 1334 (1976).

Inference Insufficient to Support Conviction. —

Evidence was insufficient to support the conviction of defendant of felonious breaking and entering and larceny under the doctrine of possession of recently stolen property where it tended to show that defendant was one of four persons in a car which contained stolen goods; the State did not demonstrate a criminal conspiracy among the four; only one of the four claimed a possessory interest in the stolen goods; that person also owned the car; in order to convict defendant, the jury must infer that he possessed the goods from the mere fact of driving with the owner of the car seated beside him, and then infer he was the thief that stole them based on the possession of recently stolen goods, and such a conviction based on stacked inferences could not stand. State v. Maines, 301 N.C. 669 , 273 S.E.2d 289, 1981 N.C. LEXIS 1021 (1981).

D.Defenses

Defense of Abandonment. —

Property which has been abandoned by the owner cannot be the subject of larceny. State v. Hall, 57 N.C. App. 544, 291 S.E.2d 873, 1982 N.C. App. LEXIS 2683 (1982).

Party relying on defense of abandonment must affirmatively show by clear, unequivocal and decisive evidence the intent of the owner to permanently terminate his ownership of the disputed property. State v. Hall, 57 N.C. App. 544, 291 S.E.2d 873, 1982 N.C. App. LEXIS 2683 (1982).

Entrapment Aspects of “Sting” Operations. —

See State v. Luster, 306 N.C. 566 , 295 S.E.2d 421, 1982 N.C. LEXIS 1548 (1982).

E.Instructions

Larceny — Proof Required as to All Elements. —

Trial judges should bear in mind that instructions requiring proof beyond a reasonable doubt and jury findings as to all essential elements thereof are prerequisite to a conviction of felony-larceny. State v. Benfield, 278 N.C. 199 , 179 S.E.2d 388, 1971 N.C. LEXIS 958 (1971).

Same — Value of Property. —

Where a defendant is indicted for the larceny of property of the value of more than $200 (now $1,000), except in those instances where this section does not apply, it is incumbent upon the trial judge to instruct the jury, if they find from the evidence beyond a reasonable doubt that the defendant is guilty of larceny but fail to find from the evidence beyond a reasonable doubt that the value of the stolen property exceeds $200 (now $1,000), the jury should return a verdict of guilty of larceny of property of a value not exceeding $200 (now $1,000). State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962).

When there is evidence tending to show the value of the stolen goods was more than $200 (now $1,000) and other evidence tending to show the value thereof was $200 (now $1,000) or less, the jury should be instructed that if they find from the evidence beyond a reasonable doubt that the defendant is guilty of larceny and that the value of the stolen property was more than $200 (now $1,000), it would be their duty to return a verdict of guilty of felony-larceny; however, if they find from the evidence beyond a reasonable doubt that the defendant is guilty of larceny but fail to find from the evidence beyond a reasonable doubt that the value of the stolen goods was more than $200 (now $1,000), it would be their duty to return a verdict of guilty of misdemeanor-larceny. State v. Jones, 275 N.C. 432 , 168 S.E.2d 380, 1969 N.C. LEXIS 412 (1969).

Although an indictment charges, and all the evidence tends to show, that the value of the stolen property was more than $200 (now $1,000), the jury, under appropriate instructions, must find from the evidence beyond a reasonable doubt that this is the fact. In such case, there is no basis, and it is inappropriate, for the court to instruct the jury with reference to a verdict of guilty of misdemeanor-larceny. State v. Jones, 275 N.C. 432 , 168 S.E.2d 380, 1969 N.C. LEXIS 412 (1969).

The court should submit to the jury the issue of defendant’s guilt of misdemeanor-larceny, where the evidence of the State does not show the value of the property that was taken. State v. Walker, 6 N.C. App. 740, 171 S.E.2d 91, 1969 N.C. App. LEXIS 1270 (1969).

As to a possible verdict of misdemeanor-larceny, it is well-established that where there is no evidence from which it can be inferred that the value of the stolen property was less than $200 (now $1,000), defendant is not entitled to an instruction with respect to larceny of property of a value less than $200 (now $1,000). State v. Reese, 31 N.C. App. 575, 230 S.E.2d 213, 1976 N.C. App. LEXIS 2064 (1976).

Refusal to Instruct on Misdemeanor Larceny Upheld. —

Where all the evidence presented showed that chainsaw was taken pursuant to a breaking or entering, it was not error to refuse to instruct on misdemeanor larceny. State v. Weaver, 79 N.C. App. 244, 339 S.E.2d 40, 1986 N.C. App. LEXIS 2029 , rev'd, 318 N.C. 400 , 348 S.E.2d 791, 1986 N.C. LEXIS 2657 (1986).

The trial court properly refused to give a requested instruction on the lesser charge of misdemeanor larceny because the only evidence of value indicated that the truck stolen was worth more than the threshold amount and there was no evidence which would have supported a jury verdict of misdemeanor larceny. State v. Huggins, 338 N.C. 494 , 450 S.E.2d 479, 1994 N.C. LEXIS 702 (1994).

Refusal to Instruct on Misdemeanor Larceny — Held Error. —

Where the State’s only evidence concerning the value of stolen items was provided by the testimony of the owner as to their replacement cost, and the jury could have inferred from the evidence that the fair market value of the items was less than their replacement cost and not more than $400.00 (now $1,000), it was error for the trial judge to refuse to charge on misdemeanor larceny when properly requested so to do. State v. Morris, 318 N.C. 643 , 350 S.E.2d 91, 1986 N.C. LEXIS 2737 (1986).

In prosecution for armed robbery, where all the essential elements of larceny would be proven by proof of the allegations in the indictment, where defendant’s own evidence regarding his acquisition of automobile in question would have supported a conviction of larceny, and where although the indictment charged that the value of the stolen property was approximately $1,490, the State introduced no evidence of value, the court’s refusal to instruct the jury on misdemeanor larceny was prejudicial error. State v. White, 85 N.C. App. 81, 354 S.E.2d 324, 1987 N.C. App. LEXIS 2583 (1987), aff'd, 322 N.C. 506 , 369 S.E.2d 813, 1988 N.C. LEXIS 472 (1988).

Refusal to Instruct on Misdemeanor Possession of Stolen Goods Upheld. —

Defendant was not entitled to instructions in his breaking and entering case on the misdemeanor offense of possession of stolen goods because all the evidence tended to show that there was a breaking and entering at the victim’s residence, that a shotgun had been taken as a result, that defendant’s DNA profile matched a sample of blood found on a door frame, and his friend stated that he believed the gun belonged to defendant. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Unauthorized Use of Motor Vehicle. —

In a prosecution for felonious larceny of a car, the jury could have believed, based on the evidence, that the defendant intended to permanently deprive the victim of the use of her car at the time he took it, or they could have believed, as the defendant contended, that he did not intend to take the victim’s car under any circumstances. Therefore, the trial court was not required to instruct the jury on unauthorized use of a motor vehicle and properly refrained from doing so. State v. Jackson, 75 N.C. App. 294, 330 S.E.2d 668, 1985 N.C. App. LEXIS 3627 (1985).

Defendant was properly convicted of larceny of a motor vehicle because defendant failed to show that the trial court committed plain error in failing to instruct the jury on the offense of unauthorized use of a motor vehicle as a lesser-included offense of larceny. The jury was instructed on voluntary intoxication, heard all the evidence, and found defendant to be guilty of larceny. State v. Hole, 240 N.C. App. 537, 770 S.E.2d 760, 2015 N.C. App. LEXIS 326 (2015).

Receiving Stolen Property. —

Where the trial judge clearly charged the jury in substance that if it found beyond a reasonable doubt from the evidence that defendant was guilty of receiving stolen property (certain guns), knowing it to have been stolen, as he had defined the offense for it, and found beyond a reasonable doubt that the guns were of a value of $600, then it would return a verdict of guilty as charged, but if under those circumstances it found the guns were of a value of $200 (now $1,000) or less, then it would return a verdict of guilty of receiving stolen goods, knowing them to have been stolen, of a value of $200 (now $1,000) or less, a misdemeanor, this conforms to the decision in State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962); State v. Matthews, 267 N.C. 244 , 148 S.E.2d 38, 1966 N.C. LEXIS 1019 (1966).

Felonious Intent. —

What is meant by “felonious intent” is a matter for the court to explain to the jury and no exact words are required to instruct the jury as to its meaning. State v. Wesson, 16 N.C. App. 683, 193 S.E.2d 425, 1972 N.C. App. LEXIS 1805 (1972), cert. denied, 282 N.C. 675 , 194 S.E.2d 155, 1973 N.C. LEXIS 1150 (1973).

F.Verdict

Verdict Need Not Fix Precise Value of Stolen Property. —

The final sentence of this section does not require that the jury fix the precise value of the stolen property. The only issue of legal significance is whether the value thereof exceeds $200 (now $1,000). When the jury is properly instructed, the verdict necessarily determines whether the value of the stolen property exceeds $200 (now $1,000). State v. Cooper, 256 N.C. 372 , 124 S.E.2d 91, 1962 N.C. LEXIS 449 (1962).

This section does not require that the jury fix the precise value of the stolen property. The only issue of legal significance is whether the value thereof exceeds $200 (now $1,000). State v. Jones, 275 N.C. 432 , 168 S.E.2d 380, 1969 N.C. LEXIS 412 (1969).

In a case where the jury was given a choice of not guilty, guilty of felonious larceny or guilty of nonfelonious larceny, finding the defendant guilty of felonious larceny indicated their belief that the value of the property exceeded $400 (now $1,000), and they were not required to fix the value of the property. State v. Austin, 75 N.C. App. 338, 330 S.E.2d 661, 1985 N.C. App. LEXIS 3632 (1985).

Except in Cases of Doubt. —

The portion of this section which expressly states, “In all cases of doubt the jury shall in its verdict fix the value of the property stolen,” means exactly what it says, and where all the evidence is to the effect that the stolen property had a value many times in excess of $200 (now $1,000), and there is no evidence or contention to the contrary, the trial court is under no legal obligation to require the jury to fix the value of the stolen property. State v. Brown, 267 N.C. 189 , 147 S.E.2d 916, 1966 N.C. LEXIS 1006 (1966).

A jury should fix the value of the stolen property only in cases of doubt concerning value. State v. Austin, 75 N.C. App. 338, 330 S.E.2d 661, 1985 N.C. App. LEXIS 3632 (1985).

Where the bill upon which the defendant was tried charged the defendant with the larceny of a 1961 Chevrolet automobile of the value of $1200 and the evidence amply supported the charge, and there was no evidence to the contrary, it was unnecessary upon such a factual situation to require the jury to find that a 1961 Chevrolet automobile of the value of $1200 was worth more than $200 (now $1,000). State v. Brown, 267 N.C. 189 , 147 S.E.2d 916, 1966 N.C. LEXIS 1006 (1966).

Value Need Not Be Established Under G.S. 15A-1237(a). —

G.S. 15A-1237(a) does not require that a verdict in a felonious larceny case establish the value of the allegedly stolen property. State v. Jefferies, 41 N.C. App. 95, 254 S.E.2d 550, 1979 N.C. App. LEXIS 2397, cert. denied, 297 N.C. 614, 257 S.E.2d 438, 1979 N.C. LEXIS 1519 (1979).

Verdict Where Court Failed to Instruct as to Duty to Find Value of Property. —

A verdict finding the defendant guilty as charged in the bill of indictment must be considered as a verdict of guilty of larceny of personal property having a value of $200 (now $1,000) or less, a misdemeanor, where the trial court failed to instruct the jury as to their duty to fix the value of the property. State v. Walker, 6 N.C. App. 740, 171 S.E.2d 91, 1969 N.C. App. LEXIS 1270 (1969).

Where, absent a finding of guilty of the breaking and entering, a verdict of guilty of larceny of property of a value of more than $200 (now $1,000) (a felony), or of guilty of larceny of property of a value of $200 (now $1,000) or less (a misdemeanor), was permissible under appropriate instructions, but the jury was not instructed as to its duty to fix the value of the property in question, the verdict must be considered as a verdict of guilty of larceny of property of a value of $200 (now $1,000) or less (a misdemeanor). State v. Teel, 20 N.C. App. 398, 201 S.E.2d 733, 1974 N.C. App. LEXIS 2447 (1974).

Where a defendant is tried for breaking or entering and felonious larceny and the jury returns a verdict of not guilty of felonious breaking or entering and guilty of felonious larceny, it is improper for the trial judge to accept the verdict of guilty of felonious larceny unless the jury has been instructed as to its duty to fix the value of the property stolen; the jury having to find that the value of the property taken exceeds $400 (now $1,000) for the larceny to be felonious. State v. Perry, 52 N.C. App. 48, 278 S.E.2d 273, 1981 N.C. App. LEXIS 2324 (1981), aff'd in part, modified, 305 N.C. 225 , 287 S.E.2d 810, 1982 N.C. LEXIS 1252 (1982).

If a defendant is found not guilty of breaking or entering and the felonious larceny charge is based upon its having been accomplished by means of a felonious breaking or entering pursuant to subdivision (b)(2) of this section, it is necessary for the judge to submit to the jury the question of the value of the stolen property in order for the jury to return a verdict of guilty of felonious larceny. State v. Robinson, 51 N.C. App. 567, 277 S.E.2d 79, 1981 N.C. App. LEXIS 2279 (1981).

Where the court in its charge did not instruct the jury to fix the value of the property taken but told them to find defendant guilty of felonious larceny if they were satisfied beyond a reasonable doubt that the property was taken during burglary or after a breaking or entering, and defendant was found not guilty of the burglary and breaking or entering, the jury could not find him guilty of felonious larceny under these circumstances and the court should have treated the jury’s verdict as a finding of guilty of misdemeanor larceny. State v. Hall, 57 N.C. App. 561, 291 S.E.2d 812, 1982 N.C. App. LEXIS 2665 (1982).

Finding. —

A finding that defendant stole property of the value of more than $50 was not a finding that the property had a value of more than $100 (now $1,000). State v. Williams, 235 N.C. 429 , 70 S.E.2d 1, 1952 N.C. LEXIS 397 (1952).

Acquittal of Breaking and Entering Does Not Preclude Conviction of Larceny. —

Where trial proceeded on the theory that defendant was guilty, if at all, as an aider and abettor of two other principal perpetrators, a not guilty verdict on a count of breaking and entering is not necessarily a finding by the jury that larceny was not committed by defendant pursuant to a breaking. It could be a finding simply that defendant was not an aider and abettor on the breaking count. The jury could, therefore, consistently with its verdict on the breaking count find that felonious larceny was committed pursuant to a breaking by the principal perpetrators and defendant, by reason of aiding and abetting, was guilty of the felony as a principal in the second degree, provided, of course, this theory of the case was presented to them in the trial judge’s instructions. State v. Curry, 288 N.C. 312 , 218 S.E.2d 374, 1975 N.C. LEXIS 978 (1975).

Additional Convictions Vacated. —

Additional convictions for possession of the automobile and the credit cards were vacated because they violated double jeopardy. State v. Scanlon, 176 N.C. App. 410, 626 S.E.2d 770, 2006 N.C. App. LEXIS 541 (2006).

G.Sentencing

Larceny from the Person. —

The punishment for larceny from the person may include imprisonment for a term of ten years. State v. Bowers, 273 N.C. 652 , 161 S.E.2d 11, 1968 N.C. LEXIS 644 (1968); State v. Massey, 273 N.C. 721 , 161 S.E.2d 103, 1968 N.C. LEXIS 652 (1968).

Under North Carolina structured sentencing, G.S. 15A-1340.17 , defendant’s prior N.C. G.S. 14-72(b)(1) conviction could have resulted in more than one year of imprisonment, so even though he actually had received only 24 months of probation, his motion to dismiss his current indictment for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C.S. §§ 922(g)(1) and 924 was denied. United States v. Hopkins, 2010 U.S. Dist. LEXIS 126204 (E.D.N.C. Nov. 30, 2010).

Trial court erred in sentencing defendant on his convictions for both larceny from the person and larceny of goods worth more than $1000 because the defendant’s convictions were based on the single act of taking the victim’s purse from the victim’s grocery cart. State v. Sheppard, 228 N.C. App. 266, 744 S.E.2d 149, 2013 N.C. App. LEXIS 721 (2013).

Larceny by Breaking and Entering. —

The maximum punishment is ten years’ imprisonment for the felony of larceny of property from a building referred to in this section by breaking or entering therein with intent to steal. State v. Reed, 4 N.C. App. 109, 165 S.E.2d 674, 1969 N.C. App. LEXIS 1451 (1969).

Misdemeanor. —

A plea of guilty to the larceny of a sum less than $200 (now $1,000) does not support a sentence of ten years’ imprisonment, and the imposition of such sentence must be vacated. State v. Davis, 267 N.C. 126 , 147 S.E.2d 570, 1966 N.C. LEXIS 995 (1966).

The maximum imprisonment for the misdemeanor of larceny is two years. State v. Barber, 5 N.C. App. 126, 167 S.E.2d 883, 1969 N.C. App. LEXIS 1292 (1969); State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749, 1970 N.C. App. LEXIS 1309 (1970).

Where an indictment charges larceny of property of the value of $200 (now $1,000) or less, but contains no allegation the larceny was from a building by breaking and entering, the crime charged is a misdemeanor for which the maximum prison sentence is two years, notwithstanding all the evidence tends to show the larceny was accomplished by means of a felonious breaking and entering. State v. Bowers, 273 N.C. 652 , 161 S.E.2d 11, 1968 N.C. LEXIS 644 (1968); State v. Massey, 273 N.C. 721 , 161 S.E.2d 103, 1968 N.C. LEXIS 652 (1968).

Consideration of Out of State Conviction as Misdemeanor. —

Trial court did not err by concluding that third-degree theft under N.J. Stat. Ann. § 2C:20-2(2) was not substantially similar to misdemeanor larceny under G.S. 14-72.2 and, therefore, the court did not err in counting the defendant’s New Jersey theft conviction as a Class I felony when calculating the defendant’s prior record level because there were many elements of third degree theft not found in misdemeanor larceny, including theft from a person. State v. Hogan, 234 N.C. App. 218, 758 S.E.2d 465, 2014 N.C. App. LEXIS 559 (2014).

Predicate for Felony Murder. —

Jury determined that the robbery with a dangerous weapon, larceny, and possession of stolen goods convictions served as the predicate felonies underlying defendant’s conviction for first-degree felony murder, and the trial court failed to arrest judgment on the underlying felonies; the court arrested judgment on the convictions for robbery and larceny, and the possession of stolen goods conviction was vacated. State v. Stroud, 252 N.C. App. 200, 797 S.E.2d 34, 2017 N.C. App. LEXIS 134 (2017).

Not Cruel and Unusual Punishment. —

A sentence of twenty-five years imprisonment, imposed after a plea of guilty to four indictments charging felonious breaking and entering and larceny in violation of G.S. 14-54 and this section, did not exceed the statutory maximum and was not cruel and unusual punishment in the constitutional sense. State v. Greer, 270 N.C. 143 , 153 S.E.2d 849, 1967 N.C. LEXIS 1313 (1967).

The imposition of a sentence of imprisonment of seven to nine years upon plea of nolo contendere to the offenses of breaking and entering and larceny is not cruel or unusual punishment in a constitutional sense. State v. Robinson, 271 N.C. 448 , 156 S.E.2d 854, 1967 N.C. LEXIS 1217 (1967).

Consolidated Counts. —

Where defendant was tried and convicted upon an indictment charging felonious breaking and entering and misdemeanor-larceny, and both counts were consolidated for judgment, the fact that the one sentence imposed is in excess of that permissible upon conviction of the misdemeanor is immaterial and is not prejudicial where it does not exceed that permitted upon conviction of the felony. State v. Cleary, 9 N.C. App. 189, 175 S.E.2d 749, 1970 N.C. App. LEXIS 1309 (1970).

Remand for Resentencing. —

Case was remanded for resentencing on defendant’s possession of stolen goods conviction because the trial court arrested judgment to avoid double jeopardy, and the underlying guilty verdict remained intact. State v. Garner, 252 N.C. App. 393, 798 S.E.2d 755, 2017 N.C. App. LEXIS 180 (2017); State v. Langley, 254 N.C. App. 186, 803 S.E.2d 166, 2017 N.C. App. LEXIS 447 (2017), rev'd, 371 N.C. 389 , 817 S.E.2d 191, 2018 N.C. LEXIS 624 (2018).

Giving of Instruction on Acting In Concert. —

Trial court did not err by giving an acting in concert instruction because no fatal variance was created between the allegations in defendant’s indictment for habitual misdemeanor larceny and the jury instruction. Moreover,the evidence was sufficient to support the instruction because defendant and co-defendant completed acts necessary to constitute larceny pursuant to a common plan or purpose as they drove to a store together, entered the store together, stuffed shirts into their pants together, and existed the store together. State v. Glidewell, 255 N.C. App. 110, 804 S.E.2d 228, 2017 N.C. App. LEXIS 658 (2017); State v. Buchanan, 253 N.C. App. 783, 801 S.E.2d 366, 2017 N.C. App. LEXIS 443 (2017).

§ 14-72.1. Concealment of merchandise in mercantile establishments.

  1. Whoever, without authority, willfully conceals the goods or merchandise of any store, not theretofore purchased by such person, while still upon the premises of such store, shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided in subsection (e). Such goods or merchandise found concealed upon or about the person and which have not theretofore been purchased by such person shall be prima facie evidence of a willful concealment.
  2. Repealed by Session Laws 1985 (Regular Session, 1986), c. 841, s. 2.
  3. A merchant, or the merchant’s agent or employee, or a peace officer who detains or causes the arrest of any person shall not be held civilly liable for detention, malicious prosecution, false imprisonment, or false arrest of the person detained or arrested, where such detention is upon the premises of the store or in a reasonable proximity thereto, is in a reasonable manner for a reasonable length of time, and, if in detaining or in causing the arrest of such person, the merchant, or the merchant’s agent or employee, or the peace officer had at the time of the detention or arrest probable cause to believe that the person committed the offense created by this section. If the person being detained by the merchant, or the merchant’s agent or employee, is a minor under the age of 18 years, the merchant or the merchant’s agent or employee, shall call or notify, or make a reasonable effort to call or notify the parent or guardian of the minor, during the period of detention. A merchant, or the merchant’s agent or employee, who makes a reasonable effort to call or notify the parent or guardian of the minor shall not be held civilly liable for failing to notify the parent or guardian of the minor.
  4. Whoever, without authority, willfully transfers any price tag from goods or merchandise to other goods or merchandise having a higher selling price or marks said goods at a lower price or substitutes or superimposes thereon a false price tag and then presents said goods or merchandise for purchase shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided in subsection (e).Nothing herein shall be construed to provide that the mere possession of goods or the production by shoppers of improperly priced merchandise for checkout shall constitute prima facie evidence of guilt.

    (d1) Notwithstanding subsection (e) of this section, any person who violates subsection (a) of this section by using a lead-lined or aluminum-lined bag, a lead-lined or aluminum-lined article of clothing, or a similar device to prevent the activation of any antishoplifting or inventory control device is guilty of a Class H felony.

  5. Punishment. —  For a first conviction under subsection (a) or (d), or for a subsequent conviction for which the punishment is not specified by this subsection, the defendant shall be guilty of a Class 3 misdemeanor. The term of imprisonment may be suspended only on condition that the defendant perform community service for a term of at least 24 hours. For a second offense committed within three years after the date the defendant was convicted of an offense under this section, the defendant shall be guilty of a Class 2 misdemeanor. The term of imprisonment may be suspended only on condition that the defendant be imprisoned for a term of at least 72 hours as a condition of special probation, perform community service for a term of at least 72 hours, or both. For a third or subsequent offense committed within five years after the date the defendant was convicted of two other offenses under this section, the defendant shall be guilty of a Class 1 misdemeanor. The term of imprisonment may be suspended only if a condition of special probation is imposed to require the defendant to serve a term of imprisonment of at least 11 days. However, if the sentencing judge finds that the defendant is unable, by reason of mental or physical infirmity, to perform the service required under this section, and the reasons for such findings are set forth in the judgment, the judge may pronounce such other sentence as the judge finds appropriate.
  6. Repealed by Session Laws 2009-372, s. 12, effective December 1, 2009, and applicable to offenses committed on or after that date.
  7. Limitations. —  For active terms of imprisonment imposed under this section:
    1. The judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial;
    2. The defendant must serve the mandatory minimum period of imprisonment and good or gain time credit may not be used to reduce that mandatory minimum period; and
    3. The defendant may not be released or paroled unless he is otherwise eligible and has served the mandatory minimum period of imprisonment.

History. 1957, c. 301; 1971, c. 238; 1973, c. 457, ss. 1, 2; 1985 (Reg. Sess., 1986), c. 841, ss. 1-3; 1987, c. 660; 1993, c. 539, s. 35; 1994, Ex. Sess., c. 24, s. 14(c); c. 28, s. 1; 1995, c. 185, s. 3; c. 509, s. 9; 1997-80, s. 1; 1997-443, s. 19.25(ff); 2009-372, s. 12.

Effect of Amendments.

Session Laws 2009-372, s. 12, effective December 1, 2009, and applicable to offenses committed on or after that date, deleted subsection (f), regarding community service periods.

Legal Periodicals.

For case law survey on shoplifting, see 41 N.C.L. Rev. 446 (1963).

For note on the 1971 amendment to this section with regard to the powers of the merchant and his immunity from suit for malicious prosecution, see 50 N.C.L. Rev. 188 (1971).

For note on the 1971 amendment to this section, concerning civil actions which may result from enforcement of the criminal sanction, see 7 Wake Forest L. Rev. 683 (1971).

CASE NOTES

This section violates neither N.C. Const., Art. I, § 17, (now N.C. Const., Art. I, § 19) nor the due process clause of the federal Constitution by reason of vagueness and uncertainty and of not informing a person of ordinary intelligence with reasonable precision of the acts it prohibits. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961).

It Is Sufficiently Definite. —

This section is sufficiently definite to guide the judge in its application and the lawyer in defending one charged with its violation. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961).

This section defines with sufficient clarity and definiteness the acts which are penalized, and informs a person of ordinary intelligence with reasonable precision what acts it intends to prohibit so that he may know what acts he should avoid, in order that he may not “cross the line” and bring himself within its penalties. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961).

Section Omits No Essential Provisions. —

This section omits no essential provisions which go to impress the inhibited acts committed as being wrongful and criminal. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961).

And Section Has a Substantial Relation to the End Sought to Be Accomplished. —

It is manifest that this section has a rational, real and substantial relation to the end sought to be accomplished, which is the protection of our merchants from shoplifting, and that such was the manifest purpose and design of the legislation. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961).

Act May Be Made Criminal Irrespective of Intent. —

It is within the power of the legislature to declare an act criminal irrespective of the intent of the doer of the act. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961).

The statutory offense of shoplifting is very limited in its application, particularly with respect to the owner or possessor of the property covered. State v. Wooten, 18 N.C. App. 652, 197 S.E.2d 614, 1973 N.C. App. LEXIS 1968 , cert. denied, 283 N.C. 758 , 198 S.E.2d 728, 1973 N.C. LEXIS 1096 (1973).

This section, due to its narrow scope, would not cover property in a residence, bank, school or church, but only “the goods or merchandise of any store.” State v. Wooten, 18 N.C. App. 652, 197 S.E.2d 614, 1973 N.C. App. LEXIS 1968 , cert. denied, 283 N.C. 758 , 198 S.E.2d 728, 1973 N.C. LEXIS 1096 (1973).

No Protection from Claims of Assault and Battery. —

Subsection (c) gives police officers, merchants, their employees and their agents the authority to detain or cause the arrest of persons suspected of shoplifting on the merchant’s premises and protects them from civil liability for detention, malicious prosecution, false imprisonment, or false arrest; however, actions for assault and battery are conspicuously omitted from the statute. Burwell v. Giant Genie Corp., 115 N.C. App. 680, 446 S.E.2d 126, 1994 N.C. App. LEXIS 763 (1994).

Unless the Assault and Battery Are One with the Detention. —

Trial court properly instructed the jury on the shopkeeper’s privilege under subsection (c) of this section, where plaintiff’s claims for assault and battery could not be separated from plaintiff’s detention; plaintiff was injured when, as he tried to leave defendant’s store after being accused of shoplifting, defendant store owner and his employee used force to detain him, which resulted in the three men falling to the ground. However, if probable cause was lacking or the detention was not reasonable, subsection (c) of this section would not apply. Redding v. Shelton's Harley Davidson, Inc., 139 N.C. App. 816, 534 S.E.2d 656, 2000 N.C. App. LEXIS 1030 (2000), writ denied, 353 N.C. 380 , 546 S.E.2d 606, 2001 N.C. LEXIS 149 (2001).

Pat Down Searches Not Permitted. —

Subsection (c) does not give police officers or merchants the right to conduct “pat down” searches of customers without their counsel. Burwell v. Giant Genie Corp., 115 N.C. App. 680, 446 S.E.2d 126, 1994 N.C. App. LEXIS 763 (1994).

Elements of Offense. —

The statutory offense created by this section is composed of four essential elements: Whoever (1) without authority, (2) willfully conceals the goods or merchandise of any store, (3) not theretofore purchased by such person, (4) while still upon the premises of the store, shall be guilty of a misdemeanor. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961); State v. Watts, 31 N.C. App. 513, 229 S.E.2d 715, 1976 N.C. App. LEXIS 2029 (1976).

To be guilty under this section, it must be proven that: (1) A person without authority, (2) willfully concealed store merchandise, (3) not purchased by that person, (4) while still upon the premises. State v. Daye, 83 N.C. App. 444, 350 S.E.2d 514, 1986 N.C. App. LEXIS 2757 (1986).

Felonious or Criminal Intent Is Not a Necessary Element. —

It is manifest from the language of this section, in view of its manifest purpose and design, that the legislature intended that a felonious intent or a criminal intent should not be a necessary element of the statutory crime of shoplifting. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961).

Willful Concealment. —

“Willfully conceals” as used in this section means that the concealing is done under the circumstances set forth in the statute voluntarily, intentionally, purposely and deliberately, indicating a purpose to do it without authority, and in violation of law, and this is an essential element of the statutory offense of shoplifting. State v. Hales, 256 N.C. 27 , 122 S.E.2d 768, 1961 N.C. LEXIS 690 (1961); State v. Watts, 31 N.C. App. 513, 229 S.E.2d 715, 1976 N.C. App. LEXIS 2029 (1976).

Testimony That Defendant “Concealed” Merchandise. —

In a prosecution under subsection (a) of this section for willfully concealing merchandise, testimony of witness who characterized defendant’s activities in store as “concealing” merchandise merely described, in a shorthand form, the actions that the witness observed defendant make, and no error was committed. State v. Daye, 83 N.C. App. 444, 350 S.E.2d 514, 1986 N.C. App. LEXIS 2757 (1986).

Ownership Need Not Be Alleged. —

Although a warrant for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective the rule is not applicable to the shoplifting statute. State v. Wooten, 18 N.C. App. 652, 197 S.E.2d 614, 1973 N.C. App. LEXIS 1968 , cert. denied, 283 N.C. 758 , 198 S.E.2d 728, 1973 N.C. LEXIS 1096 (1973).

While drafters of warrants charging a violation of this statute would be well advised to allege whether the merchandising firm is a natural person or a corporation, the failure to do so did not here render the warrant fatally defective. State v. Wooten, 18 N.C. App. 652, 197 S.E.2d 614, 1973 N.C. App. LEXIS 1968 , cert. denied, 283 N.C. 758 , 198 S.E.2d 728, 1973 N.C. LEXIS 1096 (1973).

Subsection (c) Not Applicable Where Persons Detained Without Explanation. —

In civil action for false imprisonment, defendant’s failure to explain to plaintiffs why they could not leave and his refusal to call the police or to search plaintiffs’ pocketbooks when plaintiffs offered to have him do so supported the jury’s finding that subsection (c) of this section was not applicable. Ayscue v. Mullen, 78 N.C. App. 145, 336 S.E.2d 863, 1985 N.C. App. LEXIS 4266 (1985).

The privilege created under subsection (c) should be regarded as an affirmative defense upon which defendants have the burden of proof; the trial court, therefore, erred in instructing the jury that plaintiff, who was detained on suspicion of shoplifting, had the burden of proof to establish that defendants failed to act in a reasonable manner. Redding v. Shelton's Harley Davidson, Inc., 139 N.C. App. 816, 534 S.E.2d 656, 2000 N.C. App. LEXIS 1030 (2000), writ denied, 353 N.C. 380 , 546 S.E.2d 606, 2001 N.C. LEXIS 149 (2001).

Evidence Sufficient to Convict. —

See State v. Watts, 31 N.C. App. 513, 229 S.E.2d 715, 1976 N.C. App. LEXIS 2029 (1976).

§ 14-72.2. Unauthorized use of a motor-propelled conveyance.

  1. A person is guilty of an offense under this section if, without the express or implied consent of the owner or person in lawful possession, he takes or operates an aircraft, motorboat, motor vehicle, or other motor-propelled conveyance of another.
  2. Unauthorized use of an aircraft is a Class H felony. All other unauthorized use of a motor-propelled conveyance is a Class 1 misdemeanor.
  3. Unauthorized use of a motor-propelled conveyance shall be a lesser-included offense of unauthorized use of an aircraft.
  4. As used in this section, “owner” means any person with a property interest in the motor-propelled conveyance.

History. 1973, c. 1330, s. 38; 1977, c. 919; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 36, 1166; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For a survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

CASE NOTES

Editor’s Note. —

Many of the cases below were decided under former G.S. 20-105 .

Constitutionality. —

See State v. Graham, 32 N.C. App. 601, 233 S.E.2d 615, 1977 N.C. App. LEXIS 2025 (1977) (decided prior to the 1977 amendment) .

Lesser Included Offense of Larceny. —

All of the essential elements of the crime of unauthorized use of a conveyance are included in larceny, G.S. 14-72 , and it may be a lesser included offense of larceny where there is evidence to support the charge. State v. Ross, 46 N.C. App. 338, 264 S.E.2d 742, 1980 N.C. App. LEXIS 2814 (1980); State v. Coward, 54 N.C. App. 488, 283 S.E.2d 536, 1981 N.C. App. LEXIS 2859 (1981).

Unauthorized use of a motor vehicle in violation of this section is considered a lesser included offense of larceny, under G.S. 14-72 , where there is evidence to support the charge. State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778, 1982 N.C. App. LEXIS 2729 (1982).

Unauthorized Use is Not a Lesser Offense of Possession of Stolen Goods. —

Using the required definitional test, the crime of unauthorized use of a motor vehicle contained at least one essential element not present in the crime of possession of stolen goods: the requirement that the property be a “motor-propelled conveyance.” Therefore, defendant was not entitled to a jury instruction on the motor vehicle offense. State v. Nickerson, 365 N.C. 279 , 715 S.E.2d 845, 2011 N.C. LEXIS 818 (2011).

Inference Arising from Unlawful Possession of Vehicle. —

See State v. Frazier, 268 N.C. 249 , 150 S.E.2d 431, 1966 N.C. LEXIS 1172 (1966); State v. Hayes, 273 N.C. 712 , 161 S.E.2d 185, 1968 N.C. LEXIS 651 (1968).

Keeping Vehicle Longer Than Authorized. —

Defendant’s testimony would have supported his conviction of a charge of unauthorized use of a motor vehicle as he testified that he was given permission from the owner to use the vehicle, but defendant kept the vehicle longer than permitted, although he did not have the intent to permanently deprive the owner of the vehicle. State v. Robinson, 236 N.C. App. 446, 763 S.E.2d 178, 2014 N.C. App. LEXIS 1004 (2014), modified, 368 N.C. 402 , 777 S.E.2d 755, 2015 N.C. LEXIS 1058 (2015).

Jury Instructions. —

As unauthorized use of a motor vehicle under G.S. 14-72.2(a) was a lesser-included offense of possession of stolen goods, the jury should have been so instructed, as there was contradictory evidence on two of the elements of possession of stolen goods; the state’s evidence established that defendant was in possession of property that was valued at more than $1,000 and was stolen, and the evidence also showed that the car defendant was driving belonged to a friend. State v. Nickerson, 208 N.C. App. 136, 701 S.E.2d 685, 2010 N.C. App. LEXIS 2066 (2010), rev'd, 365 N.C. 279 , 715 S.E.2d 845, 2011 N.C. LEXIS 818 (2011).

In light of case law on which the court was bound, despite the discrepancy discovered, the trial court did not err in denying defendant’s request for an instruction on unauthorized use of a motor vehicle as a lesser-included offense of possession of a stolen vehicle. State v. Robinson, 236 N.C. App. 446, 763 S.E.2d 178, 2014 N.C. App. LEXIS 1004 (2014), modified, 368 N.C. 402 , 777 S.E.2d 755, 2015 N.C. LEXIS 1058 (2015).

Defendant was properly convicted of larceny of a motor vehicle because defendant failed to show that the trial court committed plain error in failing to instruct the jury on the offense of unauthorized use of a motor vehicle as a lesser-included offense of larceny. The jury was instructed on voluntary intoxication, heard all the evidence, and found defendant to be guilty of larceny. State v. Hole, 240 N.C. App. 537, 770 S.E.2d 760, 2015 N.C. App. LEXIS 326 (2015).

Possession of One Participant Is the Possession of All. —

Possession may be personal and exclusive, although it is the joint possession of two or more persons, if they are shown to have acted in concert, or to have been particeps criminis, the possession of one participant being the possession of all. State v. Frazier, 268 N.C. 249 , 150 S.E.2d 431, 1966 N.C. LEXIS 1172 (1966).

Unauthorized use of a motor vehicle is not a lesser included offense of common-law robbery. One of the essential elements of unauthorized use of a motor vehicle is the taking or operating of a motor vehicle without having formed an intent to permanently deprive the owner thereof. Conversely, to be guilty of common-law robbery one must have an intent to permanently deprive a person of the goods taken from such person. All the elements of unauthorized use of a motor vehicle are not present in common-law robbery. State v. McCullough, 76 N.C. App. 516, 333 S.E.2d 537, 1985 N.C. App. LEXIS 3897 (1985).

Unauthorized Use Is Not A Lesser Included Offense of Possession of Stolen Vehicle. —

Unauthorized use of a motor vehicle is not a lesser-included offense of possession of a stolen vehicle and State v. Oliver is overruled to the extent that it is inconsistent with this opinion; unauthorized use of a motor vehicle contains an essential element, taking or operating, that is not included in possession of a stolen vehicle, and thus the trial court did not err in denying defendant’s request to instruct the jury on unauthorized use of a motor vehicle. State v. Robinson, 368 N.C. 402 , 777 S.E.2d 755, 2015 N.C. LEXIS 1058 (2015).

In a prosecution for felonious larceny of a car, the jury could have believed, based on the evidence, that the defendant intended to permanently deprive the victim of the use of her car at the time he took it, or they could have believed, as the defendant contended, that he did not intend to take the victim’s car under any circumstances. Therefore, the trial court was not required to instruct the jury on unauthorized use of a motor vehicle and properly refrained from doing so. State v. Jackson, 75 N.C. App. 294, 330 S.E.2d 668, 1985 N.C. App. LEXIS 3627 (1985).

Immediate flight of both defendants, without explanation, at mere approach of officers may be considered more than slight corroborative evidence of relation between their then unlawful possession and the unlawful removal of automobile from parking lot. State v. Frazier, 268 N.C. 249 , 150 S.E.2d 431, 1966 N.C. LEXIS 1172 (1966).

Where all evidence tends to show that defendant intended to permanently deprive victim of her car, it would be improper for the court to instruct on unauthorized use of a conveyance. State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778, 1982 N.C. App. LEXIS 2729 (1982).

A person is in lawful possession of a vehicle under an omnibus clause if he is given possession of the automobile by the automobile’s owner or owner’s permittee under a good faith belief that giving possession of the vehicle to the third party would not be in violation of any law or contractual obligation. Belasco v. Nationwide Mut. Ins. Co., 73 N.C. App. 413, 326 S.E.2d 109, 1985 N.C. App. LEXIS 3251 (1985).

Possession of Employer’s Vehicle Past Authorized Time Sufficient. —

Evidence that defendant was the last person to have possession or control of a truck, that defendant had the truck for nearly a month between the time defendant refused to return the truck to defendant’s employer and the subject events, and that the truck was recovered from defendant’s residence was sufficient to support a conviction for unauthorized use of a motor vehicle. State v. Milligan, 192 N.C. App. 677, 666 S.E.2d 183, 2008 N.C. App. LEXIS 1654 (2008).

Insufficient Evidence of Lack of Consent. —

Denial of defendant juvenile’s motion to dismiss an unauthorized use of a motor vehicle charge under G.S. 14-72.2(a) was not supported by sufficient evidence as although there was evidence that defendant was operating a motor vehicle registered to his mother at the time that this vehicle collided with a utility pole, there was no evidence that defendant was using the vehicle without his mother’s consent; the mere fact that an under-aged, unlicensed individual operated a motor vehicle registered to another person did not, without more, establish the required lack of consent. In re A.N.C., 225 N.C. App. 315, 750 S.E.2d 835, 2013 N.C. App. LEXIS 127 (2013).

§ 14-72.3. Removal of shopping cart from shopping premises.

  1. As used in this section:
    1. “Shopping cart” means the type of push cart commonly provided by grocery stores, drugstores, and other retail stores for customers to transport commodities within the store and from the store to their motor vehicles outside the store.
    2. “Premises” includes the motor vehicle parking area set aside for customers of the store.
  2. It is unlawful for any person to remove a shopping cart from the premises of a store without the consent, given at the time of the removal, of the store owner, manager, agent or employee.
  3. Violation of this section is a Class 3 misdemeanor.

History. 1983, c. 705, s. 1; 1994, Ex. Sess., c. 14, s. 3.1.

§ 14-72.4. Unauthorized taking or sale of labeled dairy milk cases or milk crates bearing the name or label of owner.

  1. A person is guilty of the unauthorized taking or sale of a dairy milk case or milk crate on or after January 1, 1990, if he:
    1. Takes, buys, sells or disposes of any dairy milk case or milk crate, bearing the name or label of the owner, without the express or implied consent of the owner or his designated agent; or
    2. Refuses upon demand of the owner or his designated agent to return to the owner or his designated agent any dairy milk case or milk crate, bearing the name or label of the owner; or
    3. Defaces, obliterates, erases, covers up, or otherwise removes or conceals any name, label, registered trademark, insignia, or other business identification of an owner of a dairy milk case or milk crate, for the purpose of destroying or removing from the milk case or milk crate evidence of its ownership.
  2. For purposes of this section dairy milk cases or milk crates shall be deemed to bear a name or label of an owner when there is imprinted or attached on the case or crate a name, insignia, mark, business identification or label showing ownership or sufficient information to ascertain ownership. For purposes of this section, the term “dairy case” shall be defined as a wire or plastic container which holds 16 quarts or more of beverage and is used by distributors or retailers, or their agents, as a means to transport, store, or carry dairy products.
  3. A violation of this section is a Class 2 misdemeanor.
  4. Nothing in this section shall preclude the prosecution of any misdemeanor or felony offense that is applicable under any other statute or common law.

History. 1989, c. 303, s. 1; 1994, Ex. Sess., c. 14, s. 3.2.

§ 14-72.5. Larceny of motor fuel.

  1. If any person shall take and carry away motor fuel valued at less than one thousand dollars ($1,000) from an establishment where motor fuel is offered for retail sale with the intent to steal the motor fuel, that person shall be guilty of a Class 1 misdemeanor.
  2. The term “motor fuel” as used in this section shall have the same meaning as found in G.S. 105-449.60(20).
  3. Conviction Report Sent to Division of Motor Vehicles. —  The court shall report final convictions of violations of this section to the Division of Motor Vehicles. The Division of Motor Vehicles shall revoke a person’s drivers license for a second or subsequent conviction under this section in accordance with G.S. 20-17(a)(16).

History. 2001-352, s. 1.

§ 14-72.6. Felonious larceny, possession, or receiving of stolen goods from a permitted construction site.

  1. A person is guilty of a Class I felony if he commits any of the following offenses, where the goods are valued in excess of three hundred dollars ($300.00) but less than one thousand dollars ($1,000):
    1. Larceny of goods from a permitted construction site.
    2. Possessing or receiving of stolen goods, with actual knowledge or having reasonable grounds to believe that the goods were stolen from a permitted construction site.
  2. As used in this section, a “permitted construction site” is a site where a permit, license, or other authorization has been issued by the State or a local governmental entity for the placement of new construction or improvements to real property.

History. 2005-208, s. 1.

§ 14-72.7. Chop shop activity.

  1. A person is guilty of a Class G felony if that person engages in any of the following activities, without regard to the value of the property in question:
    1. Altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part the person knows or has reasonable grounds to believe has been illegally obtained by theft, fraud, or other illegal means.
    2. Permitting a place to be used for any activity prohibited by this section, where the person either owns or has legal possession of the place, and knows or has reasonable grounds to believe that the place is being used for any activity prohibited by this section.
    3. Purchasing, disposing of, selling, transferring, receiving, or possessing a motor vehicle or motor vehicle part either knowing or having reasonable grounds to believe that the vehicle identification number of the motor vehicle, or vehicle part identification number of the vehicle part, has been altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed.
    4. Purchasing, disposing of, selling, transferring, receiving, or possessing a motor vehicle or motor vehicle part to or from a person engaged in any activity prohibited by this section, knowing or having reasonable grounds to believe that the person is engaging in that activity.
  2. Innocent Activities. —  The provisions of this section shall not apply to either of the following:
    1. Purchasing, disposing of, selling, transferring, receiving, possessing, crushing, or compacting a motor vehicle or motor vehicle part in good faith and without knowledge of previous illegal activity in regard to that vehicle or part, as long as the person engaging in the activity does not remove a vehicle identification number or vehicle part identification number before or during the activity.
    2. Purchasing, disposing of, selling, transferring, receiving, possessing, crushing, or compacting a motor vehicle or motor vehicle part after law enforcement proceedings are completed or as a part of law enforcement proceedings, as long as the activity is not in conflict with law enforcement proceedings.
  3. Civil Penalty. —  Any court with jurisdiction of a criminal prosecution under this section may also assess a civil penalty. The clear proceeds of the civil penalties shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2 . The civil penalty shall not exceed three times the assets obtained by the defendant as a result of violations of this section.
  4. Private Actions. —  Any person aggrieved by a violation of this section may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, costs of suit, and any attorneys’ fees as may be provided by law.
  5. Seizure and Forfeiture. —  Any instrumentality possessed or used to engage in the activities prohibited by this section are subject to the seizure and forfeiture provisions of G.S. 14-86.1 . The real property of a place used to engage in the activities prohibited by this section is subject to the abatement and forfeiture provisions of Chapter 19 of the General Statutes.
  6. Definitions. —  For the purposes of this section, the following definitions apply:
    1. Instrumentality. — Motor vehicle, motor vehicle part, other conveyance, tool, implement, or equipment possessed or used in the activities prohibited under this section.
    2. Vehicle identification number. — A number, a letter, a character, a datum, a derivative, or a combination thereof, used by the manufacturer or the Division of Motor Vehicles for the purpose of uniquely identifying a motor vehicle.
    3. Vehicle part identification number. — A number, a letter, a character, a datum, a derivative, or a combination thereof, used by the manufacturer for the purpose of uniquely identifying a motor vehicle part.

History. 2007-178, s. 1; 2013-323, s. 1.

Effect of Amendments.

Session Laws 2013-323, s. 1, effective December 1, 2013, in subsection (a), in the introductory language, substituted “Class G” for “Class H” and deleted “knowingly” preceding “engages”; substituted “or has reasonable grounds to believe has been illegally” for “to be illegally” in subdivision (a)(1); inserted “or has reasonable grounds to believe” in subdivision (a)(2); substituted “either knowing or having reasonable grounds to believe” for “with the knowledge” in subdivision (a)(3); and inserted “or having reasonable grounds to believe” in subdivision (a)(4). For applicability, see Editor’s note.

§ 14-72.8. Felony larceny of motor vehicle parts.

  1. Offense; Punishment. —  Unless the conduct is covered under some other provision of law providing greater punishment, larceny of a motor vehicle part is a Class I felony if (i) the cost of repairing the motor vehicle is one thousand dollars ($1,000) or more or (ii) the motor vehicle part is a catalytic converter.
  2. Presumption. —  A person in possession of a catalytic converter that has been removed from a motor vehicle is presumed to have obtained the catalytic converter under circumstances constituting a violation of subsection (a) of this section unless the person is any of the following:
    1. An employee or agent of a company, or an individual, acting in their official duties for a motor vehicle dealer, motor vehicle repair shop, secondary metals recycler, or salvage yard that is licensed, permitted, or registered pursuant to State law.
    2. An individual who possesses vehicle registration documentation indicating that the catalytic converter in the individual’s possession is the result of a replacement of a catalytic converter from a vehicle registered in that individual’s name.
  3. Determining Cost. —  For purposes of this section, the cost of repairing a motor vehicle means the cost of any replacement part and any additional costs necessary to install the replacement part in the motor vehicle.

History. 2009-379, s. 1; 2021-154, s. 1.

Editor’s Note.

Session Laws 2021-154, s. 6, made this section, as amended by Session Laws 2021-154, s. 1, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2021-154, s. 1, designated subsections (a) and (c); added subsection (b); in subsection (a), added “Offense; Punishment,” inserted “(i),” and substituted “more or (ii) the motor vehicle part is a catalytic converter” for “more”; added “Determining Cost” in subsection (c); and made minor punctuation changes. For effective date and applicability, see editor’s note.

CASE NOTES

Value. —

Statute makes larceny of a motor vehicle part a Class I felony if the cost of repairing the motor vehicle is $ 1,000 or more, and it would appear that if a defendant removed a part worth $ 500.00 from a vehicle, but the cost to repair by replacing the part would be over $ 1,000.00 because of the labor, the larceny would be elevated to a Class I felony. The statute expressly does not depend upon the fair market value of the car itself in its damaged condition as compared to its original condition or even just the value of the stolen part. State v. Gorham, 262 N.C. App. 483, 822 S.E.2d 313, 2018 N.C. App. LEXIS 1105 (2018).

Indictment. —

Trial court lacked jurisdiction to try defendant for larceny of motor vehicle parts because the indictment failed to allege the cost of repairing a single motor vehicle, and thus, the indictment was invalid on its face. State v. Stephenson, 267 N.C. App. 475, 833 S.E.2d 393, 2019 N.C. App. LEXIS 758 (2019).

§ 14-72.9. Larceny of law enforcement equipment.

  1. Definitions. –
    1. “Law enforcement equipment” means any equipment owned or operated by a law enforcement agency and used by law enforcement agencies to conduct law enforcement operations, including firearms and any other type of weapon, ammunition, radios, computers, handcuffs and other restraints, phones, cell site simulators, light bars, and sirens.
    2. “Law enforcement vehicle” means any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind owned or operated by any law enforcement agency, the North Carolina National Guard, or any branch of the Armed Forces of the United States.
  2. Offense. –  A person is guilty of a Class H felony if the person commits larceny of law enforcement equipment from a law enforcement vehicle and the person knows, or reasonably should know, that the vehicle was a law enforcement vehicle and that the property was law enforcement equipment.
  3. Additional Offense. –  A person is guilty of a Class G felony if the person violated subsection (b) of this section and the law enforcement equipment is valued in excess of one thousand dollars ($1,000).”

History. 2021-167, s. 2.

Editor's Note.

Session Laws 2021-167, s. 3, made this section, as added by Session Laws 2021-167, s. 2, effective December 1, 2021, and applicable to offenses committed on or after that date.

[Reserved]

Reserved for future codification purposes.

§ 14-72.11. Larceny from a merchant.

A person is guilty of a Class H felony if the person commits larceny against a merchant under any of the following circumstances:

  1. By taking property that has a value of more than two hundred dollars ($200.00), using an exit door erected and maintained to comply with the requirements of 29 C.F.R. § 1910.36 and 29 C.F.R. § 1910.37, to exit the premises of a store.
  2. By removing, destroying, or deactivating a component of an antishoplifting or inventory control device to prevent the activation of any antishoplifting or inventory control device.
  3. By affixing a product code created for the purpose of fraudulently obtaining goods or merchandise from a merchant at less than its actual sale price.
  4. When the property is infant formula valued in excess of one hundred dollars ($100.00). As used in this subsection, the term “infant formula,” has the same meaning as found in 21 U.S.C. § 321(z).
  5. By exchanging property for cash, a gift card, a merchandise card, or some other item of value, knowing or having reasonable grounds to believe the property is stolen.

History. 2007-373, s. 2; 2008-187, s. 34(b); 2017-162, s. 1.

Editor’s Note.

Session Laws 2017-162, s. 5 made the amendment to this section by Session Laws 2017-162, s. 1, which rewrote subdivision (1), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2008-187, s. 34(b), effective August 7, 2008, substituted “29 C.F.R. § 1910.36 and 29 C.F.R. § 1910.37” for “29 C.F.R. § 1910 Subpart E” in subdivision (1).

Session Laws 2017-162, s. 1, rewrote subdivision (1), which read: “If the property taken has a value of more than two hundred dollars ($200.00), by using an exit door erected and maintained to comply with the requirements of 29 C.F.R. § 1910.36 and 29 C.F.R. § 1910.37 upon which door has been placed a notice, sign, or poster providing information about the felony offense and punishment provided under this subsection, to exit the premises of a store.”; and added subdivision (5). For effective date and applicability, see editor’s note.

CASE NOTES

Indictment Insufficient. —

Indictment charging defendant with larceny from a merchant by removal of anti-theft device was fatally flawed in that it alleged only that “merchandise” was taken, a description too general to identify the property allegedly taken, and it alleged only an attempted rather than completed larceny. State v. Justice, 219 N.C. App. 642, 723 S.E.2d 798, 2012 N.C. App. LEXIS 438 (2012).

§ 14-73. Jurisdiction of the superior courts in cases of larceny and receiving stolen goods.

The superior courts shall have exclusive jurisdiction of the trial of all cases of the larceny of property, or the receiving of stolen goods knowing them to be stolen, of the value of more than one thousand dollars ($1,000).

History. 1913, c. 118, s. 2; C.S., s. 4252; 1941, c. 178, s. 2; 1949, c. 145, s. 3; 1961, c. 39, s. 2; 1979, c. 408, s. 2; 1991, c. 523, s. 3.

§ 14-73.1. Petty misdemeanors.

The offenses of larceny and the receiving of stolen goods knowing the same to have been stolen, which are made misdemeanors by Article 16, Subchapter V, Chapter 14 of the General Statutes, as amended, are hereby declared to be petty misdemeanors.

History. 1949, c. 145, s. 4; 1973, c. 108, s. 1.

Legal Periodicals.

For brief comment on section, see 27 N.C.L. Rev. 448 (1949).

§ 14-74. Larceny by servants and other employees.

If any servant or other employee, to whom any money, goods or other chattels, or any of the articles, securities or choses in action mentioned in G.S. 14-75 , by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods or other chattels, or any of the articles, securities or choses in action mentioned as aforesaid, or any part thereof, with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; or if any servant, being in the service of his master, without the assent of his master, shall embezzle such money, goods or other chattels, or any of the articles, securities or choses in action mentioned as aforesaid, or any part thereof, or otherwise convert the same to his own use, with like purpose to steal them, or to defraud his master thereof, the servant so offending shall be guilty of a felony: Provided, that nothing contained in this section shall extend to apprentices or servants within the age of 16 years. If the value of the money, goods, or other chattels, or any of the articles, securities, or choses in action mentioned in G.S. 14-75 , is one hundred thousand dollars ($100,000) or more, the person is guilty of a Class C felony. If the value of the money, goods, or other chattels, or any of the articles, securities, or choses in action mentioned in G.S. 14-75, is less than one hundred thousand dollars ($100,000), the person is guilty of a Class H felony.

History. 21 Hen. VIII, c. 7, ss. 1, 2; R.C., c. 34, s. 18; Code, s. 1065; Rev., s. 3499; C.S., s. 4253; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1997-443, s. 19.25(c); 1998-217, s. 4(a).

Cross References.

As to embezzlement, see G.S. 14-90 et seq.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

The purpose of this section was to make the conduct described therein a crime because it does not constitute the crime of common-law larceny. State v. Babb, 34 N.C. App. 336, 238 S.E.2d 308, 1977 N.C. App. LEXIS 1693 (1977).

The defendant’s constitutional rights were violated when she was indicted and prosecuted for felony larceny pursuant to this section in superior court after she had previously been convicted in district court of misdemeanor larceny based on the same offense, the alleged theft from her employer of a copy machine; furthermore, the prosecutor was bound to his promise not to pursue the misdemeanor charge on appeal, and the State’s election to seek conviction in superior court only on the felony larceny charge required acquittal on the misdemeanor charge. State v. Bissette, 142 N.C. App. 669, 544 S.E.2d 266, 2001 N.C. App. LEXIS 183 (2001).

Larceny Not Lesser Included Offense. —

Where defendant was charged with larceny by an employee he could not be convicted of the offense of larceny, since the two are wholly separate offenses, and each requires different evidentiary showings. In short, larceny is not a lesser included offense of larceny by an employee. State v. Daniels, 43 N.C. App. 556, 259 S.E.2d 396, 1979 N.C. App. LEXIS 3104 (1979).

Servant Defined. —

In a strict sense all employees are servants but the term servant is usually applied, and meant to apply to one of menial rank. State v. Higgins, 1 N.C. 59 (1793).

“Employee”. —

An inmate performing a mandatory work assignment cannot be convicted of larceny by employee because such an inmate is not an “employee” within the meaning of this section. State v. Frazier, 142 N.C. App. 207, 541 S.E.2d 800, 2001 N.C. App. LEXIS 40 (2001).

Trust Relation Necessary. —

A person employed as a clerk, who takes goods from his employer’s store and sends them to another at a distance to be sold cannot be convicted under this statute as there was no parting with possession by the owner which brought about a trust relation. State v. Higgins, 1 N.C. 59 (1793).

This section requires by its express terms that the larceny be committed in violation of a trust relationship between the employee and the employer. State v. Bullin, 34 N.C. App. 589, 239 S.E.2d 278, 1977 N.C. App. LEXIS 1775 (1977).

Evidence at defendant’s trial for larceny by employee did not fail to prove her necessary trust relationship with the victim, her employer, because her position was not managerial, as she was entrusted with receiving payments for the employer, preparing and reconciling daily accounting records, and depositing the payments into the bank. State v. Morris, 156 N.C. App. 335, 576 S.E.2d 391, 2003 N.C. App. LEXIS 113 , cert. denied, 357 N.C. 510 , 588 S.E.2d 379, 2003 N.C. LEXIS 1149 (2003).

And Must Be Alleged. —

In an indictment under this section, it is necessary to allege that the property was received and held by the defendant in trust, or for the use of the owner, and being so held it was feloniously converted or made way with by the servant or agent. State v. Wilson, 101 N.C. 730 , 7 S.E. 872, 1888 N.C. LEXIS 131 (1888); State v. Brown, 56 N.C. App. 228, 287 S.E.2d 421, 1982 N.C. App. LEXIS 2349 (1982).

Value Is Immaterial. —

This section does not believe its terms require that the property stolen reflect a minimum value in order for a violation thereof to constitute a felony. State v. Monk, 36 N.C. App. 337, 244 S.E.2d 186, 1978 N.C. App. LEXIS 2477 (1978).

This section does not require that the value of the stolen property be established. State v. Canipe, 64 N.C. App. 102, 306 S.E.2d 548, 1983 N.C. App. LEXIS 3230 (1983).

Age Not Essential Element. —

The phrase, “Provided, that nothing contained in this section shall extend to . . . servants within the age of 16 years” withdraws a class of defendants from the crime of larceny by an employee, while the language before the phrase completely and definitely defines the offense; hence, age is not an essential element which the indictment must allege and the State initially prove. State v. Brown, 56 N.C. App. 228, 287 S.E.2d 421, 1982 N.C. App. LEXIS 2349 (1982).

Burden of Raising Age Exception. —

To place the burden on defendant to raise the age exception to this section and to prove that he comes within it is not unconstitutional. State v. Brown, 56 N.C. App. 228, 287 S.E.2d 421, 1982 N.C. App. LEXIS 2349 (1982).

Dismissal Under G.S. 14-72 No Bar to Prosecution Under this Section. —

Since the element of trespass required in G.S. 14-72 is not required for prosecution under this section, and the element of trust required under this section is not required in G.S. 14-72 , the dismissal in district court of a charge under G.S. 14-72 cannot be considered a prior adjudication which would bar prosecution under this section. State v. Bullin, 34 N.C. App. 589, 239 S.E.2d 278, 1977 N.C. App. LEXIS 1775 (1977).

Adequate Notice of Charge. —

The defendant was adequately notified in the indictment that he would be put on trial for the embezzlement of certain nuts and bolts during a certain period of time where the crime alleged in the bill of indictment was embezzlement but the proof adduced at trial showed that the defendant aided and abetted another in the crime of embezzlement. He could not be misled or prejudiced by being convicted of a lower grade of the principal offense charged. State v. Lancaster, 37 N.C. App. 528, 246 S.E.2d 575, 1978 N.C. App. LEXIS 2798 , cert. denied, 295 N.C. 650 , 248 S.E.2d 255, 1978 N.C. LEXIS 1107 (1978).

Indictments charging defendant with larceny by employee identified the offense with enough certainty to (1) enable her to prepare her defense, (2) protect her from being twice put in jeopardy for the same offense, and (3) enable the court to know what judgment to announce in the event of a conviction; thus, they were constitutionally sufficient, and they adequately alleged a delivery in trust because they stated the money was delivered to defendant for the use of her employer; it was unnecessary to allege who delivered the money. State v. Morris, 156 N.C. App. 335, 576 S.E.2d 391, 2003 N.C. App. LEXIS 113 , cert. denied, 357 N.C. 510 , 588 S.E.2d 379, 2003 N.C. LEXIS 1149 (2003).

Because defendant failed to show that he was prejudiced by the use of the shorthand references to his employer during his trial, as the variation in names did not hamper defendant’s ability to defend against the charges or expose him to potential future prosecution, the trial court did not err by denying defendant’s motion to dismiss. State v. Fink, 252 N.C. App. 379, 798 S.E.2d 537, 2017 N.C. App. LEXIS 192 (2017).

Conspiracy. —

Defendant’s conviction for conspiracy to commit larceny by an employee did not require that he be an employee of the store as his conviction for conspiracy was a separate crime from the statutory crime of larceny by an employee. State v. Saunders, 126 N.C. App. 524, 485 S.E.2d 853, 1997 N.C. App. LEXIS 521 (1997).

Evidence of Intent. —

Evidence at defendant’s trial for larceny by employee which showed repeated discrepancies among daily payment summaries and daily bank deposit slips while under defendant’s control provided sufficient evidence that defendant intended to manipulate her employer’s records and convert the employer’s property for her improper use, and this evidence of defendant’s intent to defraud conformed to the charges in the indictments. State v. Morris, 156 N.C. App. 335, 576 S.E.2d 391, 2003 N.C. App. LEXIS 113 , cert. denied, 357 N.C. 510 , 588 S.E.2d 379, 2003 N.C. LEXIS 1149 (2003).

Evidence Admissible. —

In a prosecution of defendant for embezzlement of merchandise from his employer, the trial court did not err in admitting testimony concerning certain state’s exhibits and in admitting the exhibits consisting of cigarettes, matches, soup, soap and hams, since the items and the circumstances under which they were found were sufficiently identified and described by the officer who retrieved them, and since the evidence was relevant to show that the crime of embezzlement was committed. State v. Bryant, 50 N.C. App. 139, 272 S.E.2d 916, 1980 N.C. App. LEXIS 3470 (1980).

Trial court did not err by admitting an officer’s testimony that contained admissions that defendant had embezzled cash receipts from his previous employer because it was relevant to show his intent, plan, or absence of mistake or accident, the crimes and defendant’s methods were similar, and the trial court limited the evidence’s use in its instructions to the jury. State v. Fink, 252 N.C. App. 379, 798 S.E.2d 537, 2017 N.C. App. LEXIS 192 (2017).

Evidence Sufficient. —

Evidence was sufficient to support defendant’s conviction of larceny by an employee because it showed that the cash was the employer’s property, as defendant solely acted as the employer’s agent when he provided the proposal and accepted the cash as full payment from the customer for the agreed upon work, and as soon as the customer tendered payment to defendant as the employer’s manager and agent, the funds became the employer’s property. State v. Fink, 252 N.C. App. 379, 798 S.E.2d 537, 2017 N.C. App. LEXIS 192 (2017).

§ 14-75. Larceny of chose in action.

If any person shall feloniously steal, take and carry away, or take by robbery, any bank note, check or other order for the payment of money issued by or drawn on any bank or other society or corporation within this State or within any of the United States, or any treasury warrant, debenture, certificate of stock or other public security, or certificate of stock in any corporation, or any order, bill of exchange, bond, promissory note or other obligation, either for the payment of money or for the delivery of specific articles, being the property of any other person, or of any corporation (notwithstanding any of the said particulars may be termed in law a chose in action), that person is guilty of a Class H felony.

History. 1811, c. 814, s. 1; R.C., c. 34, s. 20; Code, s. 1064; Rev., s. 3498; C.S., s. 4254; 1945, c. 635; 1993, c. 539, s. 1167; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to description of stolen money in indictment, see G.S. 15-149 .

CASE NOTES

Relationship to Other Crimes. —

There is no authority indicating that the crimes of larceny of a chose in action, forgery, and uttering a forged paper or instrument are mutually exclusive. Therefore, the trial court did not err in failing to instruct the jury that the crimes were mutually exclusive. State v. Grier, 224 N.C. App. 150, 735 S.E.2d 434, 2012 N.C. App. LEXIS 1371 (2012).

Validity of Instrument Not Required. —

G.S. 14-75 does not require that the “bank note, check or other order for payment” be valid. Therefore, the trial court did not err in failing to instruct the jury that larceny of a chose in action required a valid instrument. State v. Grier, 224 N.C. App. 150, 735 S.E.2d 434, 2012 N.C. App. LEXIS 1371 (2012).

Treasury Notes. —

Treasury notes issued by the United States Treasury Department are covered by this statute as they are “public securities.” Although a class of securities issued after the enactment of the statute they are subject to larceny the same as any other note issued after the enactment. State v. Thompson, 71 N.C. 146 , 1874 N.C. LEXIS 32 (1874).

Due Bills. —

While a “due bill” is not a promissory note, and negotiable by endorsement, it is within the meaning of the words, “or other obligation,” in this section. The larceny of such a paper is indictable. State v. Campbell, 103 N.C. 344 , 9 S.E. 410, 1889 N.C. LEXIS 115 (1889).

A pension check on the United States Treasury comes under this section. State v. Bishop, 98 N.C. 773 , 4 S.E. 357, 1887 N.C. LEXIS 371 (1887).

Charter of Bank Issuing Immaterial. —

If a stolen note was issued by a bank within one of the United States, it is within the letter of the act, and there cannot be the slightest doubt but that it is also within its spirit and meaning. The act is silent as to the authority by which the bank must be chartered, and the mischief of stealing one of its notes from a bona fide holder is the same, whether it derives its existence from an act of Congress or from the legislature of New York. State v. Banks, 61 N.C. 577 , 1868 N.C. LEXIS 77 (1868).

Larceny of the Instrument and Paper Distinguished. —

When a person is indicted for stealing a promissory note or any other chose in action, it is upon the State to prove the larceny of the instrument, and proof of larceny of a piece of paper is not sufficient. If the instrument has been paid before the alleged felonious taking, the indictment charging only larceny of a chose in action is not sufficient to convict. State v. Campbell, 103 N.C. 344 , 9 S.E. 410, 1889 N.C. LEXIS 115 (1889).

Sufficient Description. —

An indictment for larceny which describes the thing stolen, as “one promissory note issued by the Treasury Department of the government of the United States for the payment of one dollar,” is in that respect sufficient. State v. Fulford, 61 N.C. 563 , 1868 N.C. LEXIS 73 (1868).

Amount Must Be Set Out. —

An indictment for stealing a bank note is sufficient if it states the amount of the note and what bank it was drawn on. Some cases hold that the mere statement of the amount of the note is sufficient description. State v. Rout, 10 N.C. 618 , 1825 N.C. LEXIS 69 (1825).

Evidence Insufficient. —

There was insufficient evidence to convict defendant of larceny of chose in action under G.S. 14-75 . Despite the record evidence that defendant took a check from the victim’s checkbook and cashed a check made payable to herself for $465.00, there was no evidence that the check evidenced any debt or obligation prior to the taking. State v. Grier, 224 N.C. App. 150, 735 S.E.2d 434, 2012 N.C. App. LEXIS 1371 (2012).

§ 14-75.1. Larceny of secret technical processes.

Any person who steals property consisting of a sample, culture, microorganism, specimen, record, recording, document, drawing, or any other article, material, device, or substance which constitutes, represents, evidences, reflects, or records a secret scientific or technical process, invention, formula, or any phase or part thereof shall be punished as a Class H felon. A process, invention, or formula is “secret” when it is not, and is not intended to be, available to anyone other than the owner thereof or selected persons having access thereto for limited purposes with his consent, and when it accords or may accord the owner an advantage over competitors or other persons who do not have knowledge or the benefit thereof.

History. 1967, c. 1175; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-76. Larceny, mutilation, or destruction of public records and papers.

If any person shall steal, or for any fraudulent purpose shall take from its place of deposit for the time being, or from any person having the lawful custody thereof, or shall unlawfully and maliciously obliterate, injure or destroy any record, writ, return, panel, process, interrogatory, deposition, affidavit, rule, order or warrant of attorney or any original document whatsoever, of or belonging to any court of record, or relating to any matter, civil or criminal, begun, pending or terminated in any such court, or any bill, answer, interrogatory, deposition, affidavit, order or decree or any original document whatsoever, of or belonging to any court or relating to any cause or matter begun, pending or terminated in any such court, every such offender shall be guilty of a Class 1 misdemeanor; and in any indictment for such offense it shall not be necessary to allege that the article, in respect to which the offense is committed, is the property of any person or that the same is of any value. If any person shall steal or for any fraudulent purpose shall take from the register’s office, or from any person having the lawful custody thereof, or shall unlawfully and willfully obliterate, injure or destroy any book wherein deeds or other instruments of writing are registered, or any other book of registration or record required to be kept by the register of deeds or shall unlawfully destroy, obliterate, deface or remove any records of proceedings of the board of county commissioners, or unlawfully and fraudulently abstract any record, receipt, order or voucher or other paper writing required to be kept by the clerk of the board of commissioners of any county, he shall be guilty of a Class 1 misdemeanor.

History. 8 Hen. VI, c. 12, s. 3; R.C., c. 34, s. 31; 1881, c. 17; Code, s. 1071; Rev., s. 3508; C.S., s. 4255; 1993, c. 539, s. 37; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

History of Section. —

See State v. West, 31 N.C. App. 431, 229 S.E.2d 826, 1976 N.C. App. LEXIS 2016 (1976), aff'd, 293 N.C. 18 , 235 S.E.2d 150, 1977 N.C. LEXIS 853 (1977).

Offense Is a Felony. —

Nomenclature does not always determine the grade or class of a crime; a felony is a crime which is or may be punishable either by death or by imprisonment in the State prison and any other crime is a misdemeanor. Calling an offense a misdemeanor does not make it so when the punishment imposed makes it a felony and construed with G.S. 14-3 the offense prescribed by this section is punishable by imprisonment in the penitentiary, and therefore a felony. State v. Harwood, 206 N.C. 87 , 173 S.E. 24, 1934 N.C. LEXIS 112 (1934).

Injury to Tax Books. —

An indictment will lie under this section for changing, injuring or obliterating tax books, and the oral testimony of the register of deeds is competent to show the amount of the abstract made by him and sent to the auditor, the changed amount, and the acts of the deputy sheriff, as circumstances to show his guilt. State v. Gouge, 157 N.C. 602 , 72 S.E. 994, 1911 N.C. LEXIS 103 (1911).

Evidence Insufficient. —

On a trial under this section for the destruction of certain pages of a book in the office of the register of deeds, wherein the defendant’s interest in so doing was shown, it was required of the State to show that the offense was committed on the day the defendant had an opportunity to commit the offense, and a margin of several weeks, in which the offense might have been committed, during which time the books were open to the public generally, was insufficient evidence to be submitted to the jury, and defendant’s motion as of nonsuit should have been allowed. State v. Swinson, 196 N.C. 100 , 144 S.E. 555, 1928 N.C. LEXIS 291 (1928).

§ 14-76.1. Mutilation or defacement of records and papers in the North Carolina State Archives.

If any person shall willfully or maliciously obliterate, injure, deface, or alter any record or paper in the custody of the North Carolina State Archives as defined by G.S. 121-2(7) and 121-2(8), he shall be guilty of a Class 1 misdemeanor. The provisions of this section do not apply to employees of the Department of Natural and Cultural Resources who may destroy any accessioned records or papers that are approved for destruction by the North Carolina Historical Commission pursuant to the authority contained in G.S. 121-4(12) .

History. 1975, c. 696, s. 3; 1993, c. 539, s. 38; 1994, Ex. Sess., c. 24, s. 14(c); 2015-241, s. 14.30(s).

Effect of Amendments.

Session Laws 2015-241, s. 14.30(s), effective July 1, 2015, substituted “Department of Natural and Cultural Resources” for “Department of Cultural Resources.”

§ 14-77. Larceny, concealment or destruction of wills.

If any person, either during the life of the testator or after his death, shall steal or, for any fraudulent purpose, shall destroy or conceal any will, codicil or other testamentary instrument, he shall be guilty of a Class 1 misdemeanor.

History. R.C., c. 34, s. 32; Code, s. 1072; Rev., s. 3510; C.S., s. 4256; 1993, c. 539, s. 39; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to clerk’s power to compel production of will when one in whose custody it is refuses to produce it, see G.S. 28A-2A-4.

CASE NOTES

Purpose of Section. —

Obviously the basis for making the fraudulent suppression of a will a crime as provided by this section is the fact that it is the policy of the law that wills should be probated, and that the rights of the parties in cases of dispute should be openly arrived at according to the orderly process of law. Wells v. Odum, 207 N.C. 226 , 176 S.E. 563, 1934 N.C. LEXIS 425 (1934).

§ 14-78. Larceny of ungathered crops.

If any person shall steal or feloniously take and carry away any maize, corn, wheat, rice or other grain, or any cotton, tobacco, potatoes, peanuts, pulse, fruit, vegetable or other product cultivated for food or market, growing, standing or remaining ungathered in any field or ground, that person is guilty of a Class H felony.

History. 1811, c. 816, P.R; R.C., c. 34, s. 21; 1868-9, c. 251; Code, s. 1069; Rev., s. 3503; C.S., s. 4257; 1975, c. 697; 1993, c. 539, s. 1168; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

At Common Law. —

By the common law, larceny cannot be committed of things which savor of the realty, and are at the time they are taken a part of the freehold, such as corn and the produce of land. State v. Foy, 82 N.C. 679 , 1880 N.C. LEXIS 330 (1880); State v. Thompson, 93 N.C. 537 , 1885 N.C. LEXIS 109 (1885).

What Indictment Must Allege. —

On trial of an indictment for larceny charging the defendant with stealing “seed cotton and lint cotton,” evidence that defendant took the gleanings of the cotton from the field, was not admissible. To render such evidence competent, the indictment should have been framed under the statute, and described the crop as “growing, standing or ungathered” in the field, and cultivated for food or market. State v. Bragg, 86 N.C. 687 , 1882 N.C. LEXIS 275 (1882).

In the case of State v. Liles, 78 N.C. 496 (1878), the defendant was indicted for the larceny of figs, “remaining ungathered in a certain field,” etc. and the words “cultivated for food or market,” were omitted and it was held that the indictment, for that reason, was fatally defective. State v. Thompson, 93 N.C. 537 , 1885 N.C. LEXIS 109 (1885).

Indictment Must Conclude Against the Statute. —

An indictment for larceny of growing cabbage must conclude against the statute, and a failure to so conclude makes the indictment one at common law. As the offense at common law was not larceny but only a civil trespass, there can be no judgment. State v. Foy, 82 N.C. 679 , 1880 N.C. LEXIS 330 (1880).

Applies to All Crops. —

This section applies to any growing crops cultivated for food or market, and is not restricted to several articles specifically named. State v. Ballard, 97 N.C. 443 , 1 S.E. 685, 1887 N.C. LEXIS 186 (1887).

§ 14-78.1. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(1).

§ 14-79. Larceny of ginseng.

If any person shall take and carry away, or shall aid in taking or carrying away, any ginseng growing upon the lands of another person, with intent to steal the same, he shall be punished as a Class H felon.

History. 1905, c. 211; Rev., s. 3502; C.S., s. 4258; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1169; 1994, Ex. Sess., c. 24, s. 14(c); 1999-107, s. 1.

Cross References.

For taking of certain wild plants from land of another, generally, see G.S. 14-129 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to digging ginseng out of season on the lands of another, see G.S. 106-202.19 .

§ 14-79.1. Larceny of pine needles or pine straw.

If any person shall take and carry away, or shall aid in taking or carrying away, any pine needles or pine straw being produced on the land of another person upon which land notices, signs, or posters prohibiting the raking or removal of pine needles or pine straw have been placed in accordance with the provisions of G.S. 14-159.7 , or upon which posted notices have been placed in accordance with the provisions of G.S. 14-159.7 , with the intent to steal the pine needles or pine straw, that person shall be guilty of a Class H felony.

History. 1997-443, s. 19.25(aa).

§ 14-79.2. Waste kitchen grease; unlawful acts and penalties.

  1. It shall be unlawful for any person to do any of the following:
    1. Take and carry away, or aid in taking or carrying away, any waste kitchen grease container or the waste kitchen grease contained therein, which container bears a notice that unauthorized removal is prohibited without written consent of the owner of the container.
    2. Intentionally contaminate or purposely damage any waste kitchen grease container or grease therein.
    3. Place a label on a waste kitchen grease container knowing that it is owned by another person in order to claim ownership of the container.
  2. Any person who violates subsection (a) of this section shall be penalized as follows:
    1. If the value of the waste kitchen grease container, or the container and the waste kitchen grease contained therein, is one thousand dollars ($1,000) or less, it shall be a Class 1 misdemeanor.
    2. If the value of the waste kitchen grease container, or the container and the waste kitchen grease contained therein, is more than one thousand dollars ($1,000), it shall be a Class H felony.
  3. A container in which waste kitchen grease is deposited that bears a name on the container shall be presumed to be owned by that person named on the container.
  4. As used in this section, “waste kitchen grease” has the same meaning as in G.S. 106-168.1 .

History. 2012-127, s. 6.

§ 14-80. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(2).

§ 14-81. Larceny of horses, mules, swine, cattle, or dogs.

  1. Larceny of horses, mules, swine, or cattle is a Class H felony.

    (a1) Larceny of a dog is a Class I felony.

  2. In sentencing a person convicted of violating this section, the judge shall, as a minimum punishment, place a person on probation subject to the following conditions:
    1. A person must make restitution for the damage or loss caused by the larceny of the livestock or dogs, and
    2. A person must pay a fine of not less than the amount of the damages or loss caused by the larceny of the livestock or dogs.
  3. No provision in this section shall limit the authority of the judge to sentence the person convicted of violating this section to an active sentence.

History. 1866-7, c. 62; 1868, c. 37, s. 1; 1879, c. 234, s. 2; Code, s. 1066; Rev., s. 3505; 1917, c. 162, s. 2; C.S., s. 4260; 1965, c. 621, s. 6; 1981, c. 664, s. 2; 1989, c. 773, s. 2; 1993, c. 539, s. 1171; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Taking with Belief of Interest. —

One taking a mule from the stable of another at night and without the consent of the owner is not guilty of larceny if he believed at the time when he took the mule that he had an interest in it. State v. Thompson, 95 N.C. 596 , 1886 N.C. LEXIS 312 (1886).

Same — Question for Jury. —

One who takes a mule from the stable of another in a manner indicating felonious purpose but under a claim of interest should have the question of his act being under a bona fide claim submitted to the jury, and a charge that if the taking was not under a bona fide belief that he had a property or interest in the mule he would be guilty of larceny was not error. State v. Thompson, 95 N.C. 596 , 1886 N.C. LEXIS 312 (1886).

Joinder with Charge of Receiving Stolen Goods. —

An indictment for horse stealing concluded at common law is punishable as petit larceny. If there are two counts and the second is for receiving stolen goods and concludes against the statute, the punishment for the two is the same and they may be joined, but on conviction a sentence of ten years is all that can be given. State v. Lawrence, 81 N.C. 522 , 1879 N.C. LEXIS 220 (1879).

§ 14-82. Taking horses, mules, or dogs for temporary purposes.

If any person shall unlawfully take and carry away any horse, gelding, mare, mule, or dog, the property of another person, secretly and against the will of the owner of such property, with intent to deprive the owner of the special or temporary use of the same, or with the intent to use such property for a special or temporary purpose, the person so offending shall be guilty of a Class 2 misdemeanor.

History. 1879, c. 234, s. 1; Code, s. 1067; Rev., s. 3509; 1913, c. 11; C.S., s. 4261; 1969, c. 1224, s. 3; 1989, c. 773, s. 3; 1994, Ex. Sess., c. 14, s. 3.3.

CASE NOTES

Indictment. —

An indictment for stealing the temporary use of a horse in violation of this section was not defective because it charged the stealing of the temporary use of a buggy also. State v. Darden, 117 N.C. 697 , 23 S.E. 106, 1895 N.C. LEXIS 130 (1895).

Employee Liable. —

An occasional employee, who took the employer’s mule at night and drove it off without the knowledge or consent of the employer, was guilty of a tortious conversion, and an act indictable under this section; and where the mule died in his possession he was liable for its value, at least in the absence of any evidence in support of his claim that the death was accidental. Clark v. Whitehurst, 171 N.C. 1 , 86 S.E. 78, 1915 N.C. LEXIS 305 (1915).

§ 14-83. [Repealed]

Repealed by Session Laws 1943, c. 543.

§ 14-83.1. Fixtures subject to larceny.

All common law distinctions providing that personal property that has become affixed to real property is not subject to a charge of larceny are abolished. Any person who shall remove or take and carry away, or shall aid another in removing, taking or carrying away, any property that is affixed to real property, with the intent to steal the property, shall be guilty of larceny and shall be punished as provided by statute.

History. 2008-128, s. 2.

Editor’s Note.

Session Laws 2008-128, s. 2, enacted this section as G.S. 14-83 A; it was recodified as G.S. 14-83 .1 at the direction of the Revisor of Statutes.

§ 14-84. Animals subject to larceny.

All common-law distinctions among animals with respect to their being subject to larceny are abolished. Any animal that is in a person’s possession is the subject of larceny.

History. 1919, c. 116, s. 9; C.S., s. 4263; 1955, c. 804; 1983, c. 35, s. 1.

CASE NOTES

Elements of Offense. —

Under this section, the State was obliged to prove that defendant took and carried away the dog in question without the owner’s consent, and with the intent to deprive the owner of his property permanently. State v. Rowell, 74 N.C. App. 595, 328 S.E.2d 606, 1985 N.C. App. LEXIS 3526 (1985).

Evidence Held Sufficient. —

Evidence which tended to show that the dog in question was taken from its lot without the owner’s consent, that defendant had the dog almost immediately thereafter, falsely claiming that the owner had given it to him, and that he then sold the dog to another was sufficient to justify conviction under this section. State v. Rowell, 74 N.C. App. 595, 328 S.E.2d 606, 1985 N.C. App. LEXIS 3526 (1985).

§ 14-85. Pursuing or injuring livestock with intent to steal.

If any person shall pursue, kill or wound any horse, mule, ass, jennet, cattle, hog, sheep or goat, the property of another, with the intent unlawfully and feloniously to convert the same to his own use, he shall be guilty of a Class H felony, and shall be punishable, in all respects, as if convicted of larceny, though such animal may not have come into the actual possession of the person so offending.

History. 1866, c. 57; Code, s. 1068; Rev., s. 3504; C.S., s. 4264; 1993, c. 539, s. 1172; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Sufficiency of Indictment. —

An indictment under this section for injury to livestock, in which the animal alleged to have been injured is described as a “certain cattle beast,” was sufficiently definite. State v. Credle, 91 N.C. 640 , 1884 N.C. LEXIS 133 (1884).

§ 14-86. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(3), effective October 1, 1994.

§ 14-86.1. Seizure and forfeiture of conveyances used in committing larceny and similar crimes.

  1. All conveyances, including vehicles, watercraft or aircraft, used to unlawfully conceal, convey or transport property in violation of G.S. 14-71 , 14-71.1, or 14-71.2 or used by any person in the commission of armed or common-law robbery, or used in violation of G.S. 14-72.7 , or used by any person in the commission of any larceny when the value of the property taken is more than two thousand dollars ($2,000) shall be subject to forfeiture as provided herein, except that:
    1. No conveyance used by any person as a common carrier in the transaction of the business of the common carrier shall be forfeited under the provisions of this section unless it shall appear that the owner or other person in custody or control of such conveyance was a consenting party or privy to a violation that may subject the conveyance to forfeiture under this section;
    2. No conveyance shall be forfeited under the provisions of this section by reason of any act or omission committed or omitted while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or any state;
    3. No conveyance shall be forfeited pursuant to this section unless the violation involved is a felony;
    4. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party who neither had knowledge of nor consented to the act or omission;
    5. No conveyance shall be forfeited under the provisions of this section unless the owner knew or had reason to believe the vehicle was being used in the commission of any violation that may subject the conveyance to forfeiture under this section;
    6. The trial judge in the criminal proceeding which may subject the conveyance to forfeiture may order the seized conveyance returned to the owner if he finds forfeiture inappropriate. If the conveyance is not returned to the owner the procedures provided in subsection (e) shall apply.As used in this section concerning a violation of G.S. 14-72.7 , the term “conveyance” includes any “instrumentality” as defined in that section.
  2. Any conveyance subject to forfeiture under this section may be seized by any law-enforcement officer upon process issued by any district or superior court having original jurisdiction over the offense except that seizure without such process may be made when:
    1. The seizure is incident to an arrest or subject to a search under a search warrant; or
    2. The property subject to seizure has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under this section.
  3. The conveyance shall be deemed to be in custody of the law-enforcement agency seizing it. The law-enforcement agency may remove the property to a place designated by it or request that the North Carolina Department of Justice or Department of Public Safety take custody of the property and remove it to an appropriate location for disposition in accordance with law; provided, the conveyance shall be returned to the owner upon execution by him of a good and valid bond, with sufficient sureties, in a sum double the value of the property, which said bond shall be approved by an officer of the agency seizing the conveyance and shall be conditioned upon the return of said property to the custody of said officer on the day of trial to abide the judgment of the court.
  4. Whenever a conveyance is forfeited under this section, the law-enforcement agency having custody of it may:
    1. Retain the conveyance for official use; or
    2. Transfer the conveyance which was forfeited under the provisions of this section to the North Carolina Department of Justice or to the North Carolina Department of Public Safety when, in the discretion of the presiding judge and upon application of the North Carolina Department of Justice or the North Carolina Department of Public Safety, said conveyance may be of official use to the North Carolina Department of Justice or the North Carolina Department of Public Safety; or
    3. Upon determination by the director of any law-enforcement agency that a conveyance transferred pursuant to the provisions of this section is of no further use to said agency, such conveyance may be sold as surplus property in the same manner as other conveyances owned by the law-enforcement agency. The proceeds from such sale, after deducting the cost thereof, shall be paid to the school fund of the county in which said conveyance was seized. Any conveyance transferred to any law-enforcement agency under the provisions of this section which has been modified or especially equipped from its original manufactured condition so as to increase its speed shall be used in the performance of official duties only. Such conveyance shall not be resold, transferred or disposed of other than as junk unless the special equipment or modification has been removed and destroyed, and the vehicle restored to its original manufactured condition.
  5. All conveyances subject to forfeiture under the provisions of this section shall be forfeited pursuant to the procedures for forfeiture of conveyances used to conceal, convey, or transport intoxicating beverages found in G.S. 18B-504 . Provided, nothing in this section or G.S. 18B-504 shall be construed to require a conveyance to be sold when it can be used in the performance of official duties of the law-enforcement agency.

History. 1979, c. 592; 1983, c. 74; c. 768, s. 2; 1991, c. 523, s. 4; 2007-178, s. 2; 2011-145, s. 19.1(g); 2021-134, s. 1.2(b).

Effect of Amendments.

Session Laws 2007-178, s. 2, effective December 1, 2007, and applicable to offenses committed on or after that date, in subsection (a), inserted “or used in violation of G.S. 14-72.7 ,” in the introductory paragraph; and added the concluding paragraph.

Session Laws 2011-145, s. 19.1(g), effective January 1, 2012, substituted “Department of Public Safety” for “Department of Crime Control and Public Safety” in subsection (c) and three times in subdivision (d)(2).

Session Laws 2021-134, s. 1.2(b), effective October 1, 2021, substituted “14-71.2” for “20-106” in subsection (a) in the introductory language.

CASE NOTES

Vehicles. —

Where defendant used two vehicles in the commission of armed robbery, forfeiture of both vehicles was authorized by this section. State v. Bishop, 343 N.C. 518 , 472 S.E.2d 842, 1996 N.C. LEXIS 412 (1996), cert. denied, 519 U.S. 1097, 117 S. Ct. 779, 136 L. Ed. 2d 723, 1997 U.S. LEXIS 616 (1997).

A town lacked authority to seize a vehicle used by its owner to aid and abet a felonious larceny, because only “law-enforcement officers” are authorized to seize conveyances, and the town was not a “law-enforcement officer.” In re 1990 Red Cherokee Jeep, 131 N.C. App. 108, 505 S.E.2d 588, 1998 N.C. App. LEXIS 1241 (1998).

Search Warrant. —

A town had standing to apply for a search warrant authorizing seizure of a vehicle, although the town had no authority to conduct the search, where the town sought seizure and forfeiture of a vehicle used to aid and abet a felonious larceny. In re 1990 Red Cherokee Jeep, 131 N.C. App. 108, 505 S.E.2d 588, 1998 N.C. App. LEXIS 1241 (1998).

Only district attorneys are to prosecute forfeiture proceedings. In re 1990 Red Cherokee Jeep, 131 N.C. App. 108, 505 S.E.2d 588, 1998 N.C. App. LEXIS 1241 (1998).

§ 14-86.2. Larceny, destruction, defacement, or vandalism of portable toilets or pumper trucks.

Unless the conduct is covered under some other provision of law providing greater punishment, if any person steals, takes from its temporary location or from any person having the lawful custody thereof, or willfully destroys, defaces, or vandalizes a chemical or portable toilet as defined in G.S. 130A-290 or a pumper truck that is operated by a septage management firm that is permitted by the Department of Environmental Quality under G.S. 130A-291.1 , the person is guilty of a Class 1 misdemeanor.

History. 2009-37, s. 1; 2015-241, s. 14.30(u).

Effect of Amendments.

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources.”

§§ 14-86.3, 14-86.4.

Reserved for future codification purposes.

Article 16A. Organized Retail Theft.

§ 14-86.5. Definitions.

The following definitions apply in this Article:

  1. “Retail property.” — Any new article, product, commodity, item, or component intended to be sold in retail commerce.
  2. “Retail property fence.” — A person or business that buys retail property knowing or believing that retail property is stolen.
  3. “Theft.” — To take possession of, carry away, transfer, or cause to be carried away the retail property of another with the intent to steal the retail property.
  4. “Value.” — The retail value of an item as advertised by the affected retail establishment, to include all applicable taxes.

History. 2007-373, s. 3.

Editor’s Note.

This article, as added by Session Laws 2007-373, s. 4, effective December 1, 2007, is applicable to offenses committed on or after that date.

§ 14-86.6. Organized retail theft.

  1. A person is guilty of a Class H felony if the person does either of the following:
    1. Conspires with another person to commit theft of retail property from retail establishments, with a value exceeding one thousand five hundred dollars ($1,500) aggregated over a 90-day period, with the intent to sell that retail property for monetary or other gain, and who takes or causes that retail property to be placed in the control of a retail property fence or other person in exchange for consideration.
    2. Receives or possesses any retail property that has been taken or stolen in violation of subdivision (1) of this subsection while knowing or having reasonable grounds to believe the property is stolen.

      (a1) A person is guilty of a Class G felony if the person does either of the following:

      (1) Conspires with another person to commit theft of retail property from one or more retail establishments, with a value exceeding twenty thousand dollars ($20,000) aggregated over a 90-day period, with the intent to sell that retail property for monetary or other gain, and who takes or causes that retail property to be placed in the control of a retail property fence or other person in exchange for consideration.

      (2) Conspires with two or more other persons as an organizer, supervisor, financier, leader, or manager to engage for profit in a scheme or course of conduct to effectuate the transfer or sale of property stolen from a merchant in violation of this section.

  2. Any interest a person has acquired or maintained in violation of this section shall be subject to forfeiture pursuant to the procedures for forfeiture set out in G.S. 18B-504 .
  3. Thefts of retail property occurring in more than one county may be aggregated into an alleged violation of this section. Each county where a part of the charged offense occurs has concurrent venue as described in G.S. 15A-132 .

History. 2007-373, s. 3; 2008-187, s. 34(c); 2017-162, s. 2.

Editor’s Note.

Session Laws 2017-162, s. 5 made the amendment to this section by Session Laws 2017-162, s. 2, which added “does either of the following” at the end of the introductory language for subsection (a); and added subsections (a1) and (c), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2008-187, s. 34(c), effective August 7, 2008, substituted “from retail establishments” for “from a retail establishment” in subdivision (a)(1).

Session Laws 2017-162, s. 2, added “does either of the following” at the end of the introductory language for subsection (a); and added subsections (a1) and (c). For effective date and applicability, see editor’s note.

Article 17. Robbery.

§ 14-87. Robbery with firearms or other dangerous weapons.

  1. Any person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of a Class D felony.

    (a1) Attempted robbery with a dangerous weapon shall constitute a lesser included offense of robbery with a dangerous weapon, and evidence sufficient to prove robbery with a dangerous weapon shall be sufficient to support a conviction of attempted robbery with a dangerous weapon.

  2. , (c) Repealed by Session Laws 1979, c. 760, s. 5.

    (d) Repealed by Session Laws 1993, c. 539, s. 1173.

History. 1929, c. 187, s. 1; 1975, cc. 543, 846; 1977, c. 871, ss. 1, 6; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, ss. 12, 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1173; 1994, Ex. Sess., c. 24, s. 14(c); 2017-31, s. 1.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to facilities and programs for youthful offenders, see G.S. 148-49.10 et seq.

Editor’s Note.

Session Laws 2017-31, s. 2, made subsection (a1), as added by Session Laws 2017-31, s. 1, which added subsection (a1), effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2017-31, s. 1, added subsection (a1). For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For note on lesser included offenses, see 2 Campbell L. Rev. 145 (1980).

For article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For survey of 1982 law on criminal procedure, see 61 N.C.L. Rev. 1090 (1983).

For article, “Culpability, Dangerousness, and Harm: Balancing the Factors on Which Our Criminal Law Is Predicated,” see 66 N.C.L. Rev. 283 (1988).

For article, “Apprendi/Blakely: A Primer for Practitioners,” see 30 N.C. Cent. L. Rev. 1 (2007).

CASE NOTES

Analysis

I.General Consideration

Purpose. —

The primary purpose and intent of the legislature in enacting this section, was to provide for more severe punishment for the commission of robbery when such offense is committed or attempted with the use or threatened use of firearms or other dangerous weapons. It does not add to or subtract from the common-law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission or attempted commission of the offense sentence shall be imposed as therein directed. State v. Jones, 227 N.C. 402 , 42 S.E.2d 465, 1947 N.C. LEXIS 438 (1947); State v. Hare, 243 N.C. 262 , 90 S.E.2d 550, 1955 N.C. LEXIS 594 (1955). See State v. Chase, 231 N.C. 589 , 58 S.E.2d 364, 1950 N.C. LEXIS 354 (1950).

A principal purpose of this section was to increase the penalties for armed robberies effected by the use of dangerous weapons. Ashford v. Edwards, 780 F.2d 405, 1985 U.S. App. LEXIS 25711 (4th Cir. 1985).

This section seeks retribution by punishing a specific offender, rather than deterrence by creating a new crime of possession of a firearm during a robbery. State v. Gibbons, 303 N.C. 484 , 279 S.E.2d 574, 1981 N.C. LEXIS 1189 (1981).

The section’s thrust was not to redefine robbery by eliminating the element of a taking from the offense, but rather to provide that an attempted taking with a dangerous weapon be punished as severely as a completed taking under the same circumstances, and that both be punished more severely than forceful takings committed without dangerous weapons. State v. White, 322 N.C. 506 , 369 S.E.2d 813, 1988 N.C. LEXIS 472 (1988).

The purpose of the section was to increase the punishment for common law robbery when firearms or other dangerous weapons were used to commit a robbery, whether or not the robber succeeded in the effort to take personal property. State v. White, 322 N.C. 506 , 369 S.E.2d 813, 1988 N.C. LEXIS 472 (1988).

To be found guilty of robbery with a dangerous weapon, the defendant’s threatened use or use of a dangerous weapon must precede or be concomitant with the taking, or be so joined by time and circumstances with the taking as to be part of one continuous transaction. Where a continuous transaction occurs, the temporal order of the threat or use of a dangerous weapon and the taking is immaterial. State v. Olson, 330 N.C. 557 , 411 S.E.2d 592, 1992 N.C. LEXIS 3 (1992).

For the offense of robbery with a dangerous weapon there must be a continuous transaction in which the threat or use of the dangerous weapon and the taking are so joined in time and circumstances as to be inseparable. State v. Barnes, 125 N.C. App. 75, 479 S.E.2d 236, 1997 N.C. App. LEXIS 21 , aff'd, 347 N.C. 350 , 492 S.E.2d 355, 1997 N.C. LEXIS 738 (1997).

Common-Law Offense Not Changed. —

This section does not change the offense of common-law robbery or divide it into degrees. State v. Hare, 243 N.C. 262 , 90 S.E.2d 550, 1955 N.C. LEXIS 594 (1955); State v. Massey, 273 N.C. 721 , 161 S.E.2d 103, 1968 N.C. LEXIS 652 (1968).

Section Increases Penalty for Use of Weapon Rather Than Creating New Offense. —

This section creates no new offense. It does not add to or subtract from the common-law offense of robbery except to provide that when firearms or other dangerous weapons are used in the commission of the offense, more severe punishment may be imposed. In re Sellers, 234 N.C. 648 , 68 S.E.2d 308, 1951 N.C. LEXIS 533 (1951); State v. Stewart, 255 N.C. 571 , 122 S.E.2d 355, 1961 N.C. LEXIS 642 (1961); State v. Norris, 264 N.C. 470 , 141 S.E.2d 869, 1965 N.C. LEXIS 1220 (1965); State v. Bell, 270 N.C. 25 , 153 S.E.2d 741, 1967 N.C. LEXIS 1286 (1967); State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809, 1971 N.C. LEXIS 941 (1971); State v. Osborne, 13 N.C. App. 420, 185 S.E.2d 593, 1972 N.C. App. LEXIS 2254 (1972); State v. Rivens, 299 N.C. 385 , 261 S.E.2d 867, 1980 N.C. LEXIS 923 (1980).

The use, or threatened use, of firearms or other dangerous weapons in perpetrating a robbery does not add to or subtract from the common-law offense of robbery, but this section provides a more severe punishment for a robbery attempted or accomplished with the use of a dangerous weapon. State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966); State v. Faulkner, 5 N.C. App. 113, 168 S.E.2d 9, 1969 N.C. App. LEXIS 1290 (1969); State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969).

This section creates no new offense, but provides that when firearms or other dangerous weapons are used, more severe punishment may be imposed. State v. Rogers, 273 N.C. 208 , 159 S.E.2d 525, 1968 N.C. LEXIS 580 (1968); State v. Barksdale, 16 N.C. App. 559, 192 S.E.2d 659, 1972 N.C. App. LEXIS 1759 (1972), cert. denied, 282 N.C. 673 , 194 S.E.2d 152, 1973 N.C. LEXIS 1140 (1973); State v. Black, 286 N.C. 191 , 209 S.E.2d 458, 1974 N.C. LEXIS 1194 (1974); State v. Brown, 300 N.C. 41 , 265 S.E.2d 191, 1980 N.C. LEXIS 1040 (1980).

This section does not create a new crime, it merely increases the punishment which may be imposed from common-law robbery where the perpetrator employs a weapon. State v. Gibbons, 303 N.C. 484 , 279 S.E.2d 574, 1981 N.C. LEXIS 1189 (1981).

The focus of this section is not the creation of a new crime for commission of an offense with a firearm, but the punishment of a specific person who has committed a robbery which endangers a specific victim. State v. Gibbons, 303 N.C. 484 , 279 S.E.2d 574, 1981 N.C. LEXIS 1189 (1981).

State must show active participation or accessory before the fact in a prosecution for armed robbery. State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

Principals Equally Guilty. —

All who are present at the place of a crime and are either aiding, abetting, assisting or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, are principals and equally guilty. State v. Dowd, 28 N.C. App. 32, 220 S.E.2d 393, 1975 N.C. App. LEXIS 1671 (1975).

Both principals in the first degree and principals in the second degree are considered principals and are equally guilty of common-law robbery. State v. Melvin, 57 N.C. App. 503, 291 S.E.2d 885, 1982 N.C. App. LEXIS 2680 , cert. denied, 306 N.C. 748 , 295 S.E.2d 484, 1982 N.C. LEXIS 1775 (1982).

Persons Who Aid and Abet Attempt. —

By its express terms, this section extends to one who aids and abets in an attempt to commit armed robbery. State v. Dowd, 28 N.C. App. 32, 220 S.E.2d 393, 1975 N.C. App. LEXIS 1671 (1975).

Guilt of Coconspirator for Murder Committed in Course of Armed Robbery. —

When a conspiracy is formed to commit an armed robbery and any one of the conspirators commits a murder in the perpetration or attempted perpetration of the armed robbery, all conspirators actually or constructively present, aiding and abetting the actual perpetrators of the crime of armed robbery are guilty of murder in the first degree. Where one has entered into the perpetration of a felony and has aided or encouraged its commission, he cannot escape criminal liability by withdrawing from the scene. State v. Martin, 309 N.C. 465 , 308 S.E.2d 277, 1983 N.C. LEXIS 1437 (1983).

Exception to signing of judgment entered upon defendant’s conviction of armed robbery was without merit where the indictment properly charged defendant with armed robbery, the evidence supported the judgment and the sentence was within the statutory limits. State v. Hughes, 8 N.C. App. 334, 174 S.E.2d 1, 1970 N.C. App. LEXIS 1558 (1970).

Conviction of Armed Robbery and Unlawful Use of a Conveyance Upheld. —

Defendant did not suffer conviction for the same crime twice by being convicted of armed robbery and the unlawful use of a conveyance; defendant was not charged with the armed robbery of an automobile, but instead, he was charged with the larceny of the automobile after the crime of armed robbery had been completed; therefore, defendant could be convicted of the larceny of the automobile as a separate crime. State v. Stevens, 94 N.C. App. 194, 379 S.E.2d 863, 1989 N.C. App. LEXIS 451 (1989).

Variance Between Indictment and Evidence Not Fatal. —

Variance between an indictment, which stated defendant took a wallet and its contents, a television, and a VCR from a victim, and the evidence at trial, which showed defendant took $50 from the victim while his accomplice took the other items, was not fatal to the indictment; the gist of the offense of robbery with a dangerous weapon was not the taking of personal property but rather a taking or attempted taking by force or putting a victim in fear by use of a dangerous weapon and the evidence at trial tended to show defendant took the money from the victim at gunpoint. State v. McCree, 160 N.C. App. 19, 584 S.E.2d 348, 2003 N.C. App. LEXIS 1667 (2003).

Plain Error Found. —

Trial court committed plain error in failing to instruct the jury on conspiracy to commit common law robbery as the jury was properly instructed on robbery with a dangerous weapon and common law robbery, apparently based on the conflicting evidence regarding whether the gun used was real or fake; the same conflicting evidence directly pertained to defendant’s charge of conspiracy to commit common law robbery as there was conflicting evidence as to whether the agreement was that the person who committed the robbery would use a real or a fake gun. State v. Carter, 177 N.C. App. 539, 629 S.E.2d 332, 2006 N.C. App. LEXIS 1078 , aff'd, 361 N.C. 108 , 637 S.E.2d 537, 2006 N.C. LEXIS 1286 (2006).

Instruction on Parole Ineligibility in Capital Case. —

Where a State prisoner, who was convicted of first-degree murder, first-degree rape, kidnapping, armed robbery, and the burning of personal property, in violation of G.S. 14-17 , 14-27.2(a)(2), 14-39, 14-87, and 14-66, argued that the sentencing court erred by failing to provide a parole ineligibility instruction, the prisoner, who was sentenced to death for the murder conviction, was not entitled to federal habeas corpus relief because the prisoner would have been eligible for parole under former G.S. 15A-1371(a1) if the jury had recommended life imprisonment; thus, because the prisoner was eligible for parole as a matter of law, the prisoner was not entitled to a parole ineligibility instruction. Campbell v. Polk, 447 F.3d 270, 2006 U.S. App. LEXIS 11591 (4th Cir.), cert. denied, 549 U.S. 1098, 127 S. Ct. 834, 166 L. Ed. 2d 669, 2006 U.S. LEXIS 9512 (2006).

II.Common-Law Robbery

Elements of Offense. —

Robbery at common law is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. State v. Stewart, 255 N.C. 571 , 122 S.E.2d 355, 1961 N.C. LEXIS 642 (1961); State v. Lawrence, 262 N.C. 162 , 136 S.E.2d 595, 1964 N.C. LEXIS 620 (1964); State v. Norris, 264 N.C. 470 , 141 S.E.2d 869, 1965 N.C. LEXIS 1220 (1965); State v. Rogers, 273 N.C. 208 , 159 S.E.2d 525, 1968 N.C. LEXIS 580 (1968); State v. Faulkner, 5 N.C. App. 113, 168 S.E.2d 9, 1969 N.C. App. LEXIS 1290 (1969); State v. Moore, 279 N.C. 455 , 183 S.E.2d 546, 1971 N.C. LEXIS 846 (1971); State v. Osborne, 13 N.C. App. 420, 185 S.E.2d 593, 1972 N.C. App. LEXIS 2254 (1972); State v. Hoover, 14 N.C. App. 154, 187 S.E.2d 453, 1972 N.C. App. LEXIS 2065 , cert. denied, 281 N.C. 316 , 188 S.E.2d 899, 1972 N.C. LEXIS 1071 (1972); State v. Black, 286 N.C. 191 , 209 S.E.2d 458, 1974 N.C. LEXIS 1194 (1974); State v. Dixon, 34 N.C. App. 388, 238 S.E.2d 183, 1977 N.C. App. LEXIS 1706 (1977); State v. Melvin, 57 N.C. App. 503, 291 S.E.2d 885, 1982 N.C. App. LEXIS 2680 , cert. denied, 306 N.C. 748 , 295 S.E.2d 484, 1982 N.C. LEXIS 1775 (1982).

Robbery is the taking, with intent to steal, of the personal property of another, from his person or in his presence, without his consent or against his will, by violence or intimidation. State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966); State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969); State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809, 1971 N.C. LEXIS 941 (1971); State v. Young, 16 N.C. App. 101, 191 S.E.2d 369, 1972 N.C. App. LEXIS 1648 (1972); State v. Rivens, 299 N.C. 385 , 261 S.E.2d 867, 1980 N.C. LEXIS 923 (1980); State v. Chapman, 49 N.C. App. 103, 270 S.E.2d 524, 1980 N.C. App. LEXIS 3353 (1980).

Common-law robbery is the felonious, nonconsensual taking of money or personal property from the person or presence of another by means of violence or fear. State v. Smith, 305 N.C. 691 , 292 S.E.2d 264, 1982 N.C. LEXIS 1379 (1982), cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622, 1982 U.S. LEXIS 4583 (1982), cert. denied, 330 N.C. 617 , 412 S.E.2d 68, 1991 N.C. LEXIS 759 (1991).

The essential elements of the offense of common-law robbery are the taking with the felonious intent of defendant to permanently deprive the owner of his property and to convert the owner’s property to his own use. State v. McCullough, 79 N.C. App. 541, 340 S.E.2d 132, 1986 N.C. App. LEXIS 2089 , cert. denied, 316 N.C. 556 , 344 S.E.2d 13, 1986 N.C. LEXIS 2204 (1986).

Common-law robbery is the taking and carrying away of personal property of another from his person or presence without his consent by violence or by putting him in fear and with the intent to deprive him of its use permanently, the taker knowing that he was not entitled to take it. State v. McCullough, 79 N.C. App. 541, 340 S.E.2d 132, 1986 N.C. App. LEXIS 2089 , cert. denied, 316 N.C. 556 , 344 S.E.2d 13, 1986 N.C. LEXIS 2204 (1986).

Not Defined by Statute. —

Robbery, a common-law offense not defined by statute in North Carolina, is merely an aggravated form of larceny. State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966); State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969); State v. Hullender, 8 N.C. App. 41, 173 S.E.2d 581, 1970 N.C. App. LEXIS 1475 (1970); State v. Chapman, 49 N.C. App. 103, 270 S.E.2d 524, 1980 N.C. App. LEXIS 3353 (1980).

Highway robbery is a common-law offense and is frequently denominated “common-law robbery.” State v. Stewart, 255 N.C. 571 , 122 S.E.2d 355, 1961 N.C. LEXIS 642 (1961).

Felonious Intent Is Essential Element. —

An essential element of the offense of common-law robbery is a felonious taking, i.e., a taking with the felonious intent on the part of the taker to deprive the owner of his property permanently and to convert it to the use of the taker. State v. Norris, 264 N.C. 470 , 141 S.E.2d 869, 1965 N.C. LEXIS 1220 (1965); State v. Mundy, 265 N.C. 528 , 144 S.E.2d 572, 1965 N.C. LEXIS 1033 (1965).

A homicide victim is still a “person” within the meaning of the statutory definition of armed robbery, so long as the death and the taking were so connected as to form a continuous chain of events; the same rule must hold for common-law robbery. State v. Davis, 325 N.C. 607 , 386 S.E.2d 418, 1989 N.C. LEXIS 596 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2900 (1990).

Use or threatened use of a firearm or other dangerous weapon is not an essential of common-law robbery. State v. Moore, 279 N.C. 455 , 183 S.E.2d 546, 1971 N.C. LEXIS 846 (1971).

“Fear” Not Limited to Fear of Death. —

The word “fear” as used in the phrase, “putting him in fear,” in the definition of common-law robbery is not confined to fear of death. State v. Moore, 279 N.C. 455 , 183 S.E.2d 546, 1971 N.C. LEXIS 846 (1971).

Proof of Violence or Fear Sufficient. —

For robbery at common law it is not necessary to prove both violence and putting in fear — proof of either is sufficient. State v. Moore, 279 N.C. 455 , 183 S.E.2d 546, 1971 N.C. LEXIS 846 (1971); State v. Dixon, 34 N.C. App. 388, 238 S.E.2d 183, 1977 N.C. App. LEXIS 1706 (1977).

Absent the elements of violence or intimidation, the offense becomes larceny. State v. Chapman, 49 N.C. App. 103, 270 S.E.2d 524, 1980 N.C. App. LEXIS 3353 (1980).

Degree of force used in common-law robbery is immaterial so long as it is sufficient to cause the victim to part with his property. State v. Dixon, 34 N.C. App. 388, 238 S.E.2d 183, 1977 N.C. App. LEXIS 1706 (1977).

Solicitation to commit common-law robbery is an infamous crime within the meaning of G.S. 14-3 . State v. Mann, 317 N.C. 164 , 345 S.E.2d 365, 1986 N.C. LEXIS 2781 (1986).

A spouse may be indicted and convicted of robbery with a dangerous weapon against his or her spouse; the common law rule exempting spouses from prosecution in larceny cases does not apply to prosecutions for armed robbery. State v. Mahaley, 122 N.C. App. 490, 470 S.E.2d 549, 1996 N.C. App. LEXIS 442 (1996).

Evidence Held Sufficient. —

Where testimony established that victim’s apartment was “a mess” and “in total disarray” and that victim usually kept her apartment neat and clean rather than in the state seen by investigating officers, the evidence permitted a reasonable inference that defendant had engaged in a purposeful search of victim’s apartment, at least some part of which occurred in her presence against her will and by putting her in fear, culminating in removal of a radio and ring; therefore, court did not err in refusing to dismiss charge of common-law robbery. State v. Davis, 325 N.C. 607 , 386 S.E.2d 418, 1989 N.C. LEXIS 596 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2587, 110 L. Ed. 2d 268, 1990 U.S. LEXIS 2900 (1990).

III.Armed Robbery

Armed robbery is a crime of violence, the very nature of which suffices to support a reasonable belief that defendant would evade arrest if not immediately taken into custody. State v. Shore, 285 N.C. 328 , 204 S.E.2d 682, 1974 N.C. LEXIS 975 (1974).

Conviction for conspiracy to commit robbery with a dangerous weapon under G.S. 14-87 provided a predicate offense for sentencing under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e)(2)(B), because it was similar to enumerated offenses under § 924(e)(2)(B)(ii), and it was a dangerous crime of violence, which created a serious potential risk of physical injury to another. United States v. White, 571 F.3d 365, 2009 U.S. App. LEXIS 14608 (4th Cir. 2009), cert. denied, 558 U.S. 1151, 130 S. Ct. 1140, 175 L. Ed. 2d 978, 2010 U.S. LEXIS 689 (2010), dismissed, 2011 U.S. Dist. LEXIS 3549 (W.D.N.C. Jan. 7, 2011).

Defendant was properly sentenced under Armed Career Criminal Act (ACCA), 18 U.S.C.S. § 824(e), because offense of armed robbery categorically qualified as violent felony under “force clause” of ACCA particularly because crime necessarily entailed use, attempted use, or threatened use of violent physical force. United States v. Burns-Johnson, 864 F.3d 313, 2017 U.S. App. LEXIS 12877 (4th Cir.), cert. denied, 138 S. Ct. 461, 199 L. Ed. 2d 339, 2017 U.S. LEXIS 6870 (2017).

Gravamen of the offense of armed robbery is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery. State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982).

Elements of Offense. —

Under this section, an armed robbery is defined as the taking of the personal property of another in his presence or from his person without his consent by endangering or threatening his life with a firearm, with the taker knowing that he is not entitled to the property and the taker intending to permanently deprive the owner of the property. State v. May, 292 N.C. 644 , 235 S.E.2d 178, 1977 N.C. LEXIS 1167 , cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288, 1977 U.S. LEXIS 3839 (1977); State v. Davis, 301 N.C. 394 , 271 S.E.2d 263, 1980 N.C. LEXIS 1168 (1980); State v. Bates, 309 N.C. 528 , 308 S.E.2d 258, 1983 N.C. LEXIS 1434 (1983), rev'd, 313 N.C. 591 , 330 S.E.2d 204, 1985 N.C. LEXIS 1561 (1985).

An armed robbery occurs when an individual takes or attempts to take personal property from the person of another, or in his presence, or from any place of business or residence where there is a person or persons in attendance, by the use or threatened use of a dangerous weapon, whereby the life of a person is endangered or threatened. State v. Porter, 303 N.C. 680 , 281 S.E.2d 377, 1981 N.C. LEXIS 1268 (1981).

The essentials of the offense set forth in this section are (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of “firearms or other dangerous weapon, implement or means”; and (3) danger or threat to the life of the victim. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978); State v. Moore, 37 N.C. App. 248, 245 S.E.2d 898, 1978 N.C. App. LEXIS 2732 , cert. denied, 295 N.C. 651 , 248 S.E.2d 255, 1978 N.C. LEXIS 1112 (1978); State v. Gibbons, 303 N.C. 484 , 279 S.E.2d 574, 1981 N.C. LEXIS 1189 (1981); State v. Chambers, 53 N.C. App. 358, 280 S.E.2d 636, 1981 N.C. App. LEXIS 2593 , cert. denied, 304 N.C. 197 , 285 S.E.2d 103, 1981 N.C. LEXIS 1451 (1981); State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982); State v. Willis, 61 N.C. App. 244, 300 S.E.2d 829, 1983 N.C. App. LEXIS 2634 (1983); State v. Abdullah, 309 N.C. 63 , 306 S.E.2d 100, 1983 N.C. LEXIS 1311 (1983); State v. Greene, 67 N.C. App. 703, 314 S.E.2d 262, 1984 N.C. App. LEXIS 3136 (1984); State v. Giles, 83 N.C. App. 487, 350 S.E.2d 868, 1986 N.C. App. LEXIS 2729 (1986).

To obtain a conviction for the offense of armed robbery, the State must prove three elements: (1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of “firearms or other dangerous weapon, implement or means;” and (3) danger or threat to the life of the victim. In re Stowe, 118 N.C. App. 662, 456 S.E.2d 336, 1995 N.C. App. LEXIS 326 (1995).

The elements necessary to constitute armed robbery under this section are: (1) the unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; and (3) whereby the life of a person is endangered or threatened. State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982); State v. Leonard, 74 N.C. App. 443, 328 S.E.2d 593, 1985 N.C. App. LEXIS 3499 (1985); State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985); State v. Hope, 317 N.C. 302 , 345 S.E.2d 361, 1986 N.C. LEXIS 2778 (1986).

Armed robbery under this section consists of the following elements: (1) the unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened. Force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense. State v. Small, 328 N.C. 175 , 400 S.E.2d 413, 1991 N.C. LEXIS 87 (1991).

The State sufficiently proved the elements necessary to constitute armed robbery. State v. Wilson, 121 N.C. App. 720, 468 S.E.2d 475, 1995 N.C. App. LEXIS 1096 (1995).

It is the taking of personal property from another with force or putting that person in fear that is the gist of this offense, and the ownership of the property taken is not relevant; indeed, the State need only show that the property taken was in the “care, custody, control, management, or possession” of the person from whom it was taken. State v. Willis, 127 N.C. App. 549, 492 S.E.2d 43, 1997 N.C. App. LEXIS 1058 (1997).

Armed robbery has the following essential elements: (1) the unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; (3) whereby the life of a person is endangered or threatened. State v. Willis, 127 N.C. App. 549, 492 S.E.2d 43, 1997 N.C. App. LEXIS 1058 (1997).

When defendant was convicted of two counts of robbery with a dangerous weapon under G.S. 14-87(a), based on defendant taking personal property from two victims who were married to each other, defendant’s claim that defendant should only have been sentenced on one count because the property taken was marital property had no merit because, as long as the evidence showed defendant was not taking defendant’s own property, which it did, ownership was irrelevant. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93, 2007 N.C. App. LEXIS 1050 (2007).

Decedent as Victim. —

A homicide victim is still a person, within the meaning of the robbery statute, when the interval between the fatal blow and the taking of property is short. State v. Wilson, 354 N.C. 493 , 556 S.E.2d 272, 2001 N.C. LEXIS 1236 (2001), overruled in part, State v. Millsaps, 356 N.C. 556 , 572 S.E.2d 767, 2002 N.C. LEXIS 1251 (2002).

Robbery from a dead victim was possible when the taking and the death were part of a continuous chain of events. State v. Gainey, 355 N.C. 73 , 558 S.E.2d 463, 2002 N.C. LEXIS 21 , cert. denied, 537 U.S. 896, 123 S. Ct. 182, 154 L. Ed. 2d 165, 2002 U.S. LEXIS 6690 (2002).

Adjudication of a Juvenile. —

Where the State’s evidence showed more than “mere possession” of the weapon, the gun was fired into the air shortly before the juvenile demanded candy, the juvenile deliberately gestured toward the gun in his pocket while demanding the candy, and the victim was scared that if he did not comply, the juvenile might shoot him, the trial court did not err in denying the juvenile’s motion to dismiss and adjudicating him delinquent on the armed robbery charge. In re Stowe, 118 N.C. App. 662, 456 S.E.2d 336, 1995 N.C. App. LEXIS 326 (1995).

This section superadds to the minimum essentials of common-law robbery the additional requirement that the robbery must be committed “with the use or threatened use of . . . firearms or other dangerous weapon, implement or means whereby the life of a person is endangered or threatened.” State v. Rogers, 246 N.C. 611 , 99 S.E.2d 803, 1957 N.C. LEXIS 502 (1957), limited, State v. Lawrence, 262 N.C. 162 , 136 S.E.2d 595, 1964 N.C. LEXIS 620 (1964); State v. Stewart, 255 N.C. 571 , 122 S.E.2d 355, 1961 N.C. LEXIS 642 (1961); State v. Norris, 264 N.C. 470 , 141 S.E.2d 869, 1965 N.C. LEXIS 1220 (1965).

Critical and essential difference between armed robbery and common-law robbery is that in order for the jury to convict for armed robbery the victim must be endangered or threatened by the use or threatened use of a “firearm or other dangerous weapon, implement or means.” State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809, 1971 N.C. LEXIS 941 (1971).

Where a weapon which is dangerous within the meaning of this section is used in a robbery, the only difference between common-law robbery and armed robbery is whether the life of the person robbed is endangered or threatened by the weapon. State v. Osborne, 13 N.C. App. 420, 185 S.E.2d 593, 1972 N.C. App. LEXIS 2254 (1972).

The essential difference between armed robbery and common-law robbery is that the former is accomplished by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. State v. Lee, 282 N.C. 566 , 193 S.E.2d 705, 1973 N.C. LEXIS 1109 (1973); State v. Dollar, 292 N.C. 344 , 233 S.E.2d 521, 1977 N.C. LEXIS 1094 (1977); State v. Clemmons, 34 N.C. App. 101, 237 S.E.2d 298, 1977 N.C. App. LEXIS 1587 (1977); State v. Coats, 301 N.C. 216 , 270 S.E.2d 422, 1980 N.C. LEXIS 1156 (1980).

The essential difference between armed robbery and common-law robbery is that, to prove the former, the State must produce evidence sufficient to show that the victim was endangered or threatened by the use or threatened use of a firearm or other dangerous weapon, implement or means. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

The critical difference between armed robbery and common law robbery is that the former is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened. State v. Cummings, 346 N.C. 291 , 488 S.E.2d 550, 1997 N.C. LEXIS 480 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873, 1998 U.S. LEXIS 713 (1998).

Danger or Threat to Life Must Be Found. —

Prerequisite to conviction for armed robbery, the jury must find from the evidence, beyond a reasonable doubt, that the life of the victim was endangered or threatened by the use, or threatened use, of firearms or other dangerous weapon, implement, or means. A conviction of “guilty as charged” may not be based on a finding that the accused “used force or intimidation sufficient to create an apprehension of danger.” This is a critical distinction between armed robbery as defined in this section, and common-law robbery. State v. Covington, 273 N.C. 690 , 161 S.E.2d 140, 1968 N.C. LEXIS 649 (1968); State v. Gibbons, 303 N.C. 484 , 279 S.E.2d 574, 1981 N.C. LEXIS 1189 (1981).

This section requires, among other things, that a robbery be accomplished by the use or threatened use of a firearm or other dangerous weapon whereby the life of a person is endangered or threatened. State v. Jones, 292 N.C. 255 , 232 S.E.2d 707, 1977 N.C. LEXIS 1060 (1977).

Intent to Kill or Inflict Serious Injury Are Not Elements. —

The crime of armed robbery includes an assault on the person with a deadly weapon, but it does not include the additional elements of (1) intent to kill or (2) inflicting serious injury. State v. Kearns, 27 N.C. App. 354, 219 S.E.2d 228, 1975 N.C. App. LEXIS 1849 (1975), cert. denied, 289 N.C. 300 , 222 S.E.2d 700, 1976 N.C. LEXIS 1278 (1976).

Use of force or intimidation must necessarily precede or be concomitant with the taking before the defendant can properly be found guilty of armed robbery. That is, the use of force or violence must be such as to induce the victim to part with his or her property. State v. Richardson, 308 N.C. 470 , 302 S.E.2d 799, 1983 N.C. LEXIS 1220 (1983); State v. Hope, 317 N.C. 302 , 345 S.E.2d 361, 1986 N.C. LEXIS 2778 (1986).

In this jurisdiction, for defendant to be found guilty of armed robbery, his use or threatened use of a dangerous weapon must precede or be concomitant with the taking, or be so joined with it in a continuous transaction by time and circumstances as to be inseparable. State v. Hope, 317 N.C. 302 , 345 S.E.2d 361, 1986 N.C. LEXIS 2778 (1986).

Exact time relationship between violence and actual taking is unimportant, as long as there is one continuing transaction amounting to armed robbery, with the elements of violence and of taking so joined in time and circumstances as to be inseparable. State v. Hope, 317 N.C. 302 , 345 S.E.2d 361, 1986 N.C. LEXIS 2778 (1986).

The commission of armed robbery as defined by subsection (a) of this section does not depend upon whether the threat or use of violence precedes or follows the taking of the victim’s property. Where there is a continuous transaction, the temporal order of the threat or use of a dangerous weapon and the taking is immaterial. State v. Green, 321 N.C. 594 , 365 S.E.2d 587, 1988 N.C. LEXIS 112 , cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

As Is Forming of Intent and Use of Force. —

Provided that the theft and the force are aspects of a single transaction, it is immaterial whether the intention to commit the theft was formed before or after force was used upon the victims. State v. Green, 321 N.C. 594 , 365 S.E.2d 587, 1988 N.C. LEXIS 112 , cert. denied, 488 U.S. 900, 109 S. Ct. 247, 102 L. Ed. 2d 235, 1988 U.S. LEXIS 4317 (1988).

Felony-Murder Rule. —

An essential element of armed robbery, indeed the heart of the offense, is that a firearm or other dangerous weapon be used whereby the life of a person is endangered or threatened. This act is by its nature inherently dangerous to human life; and, if this danger against which the statute is aimed occurs and the robber kills, the act is ordinarily murder under the felony-murder rule. State v. Barnett, 307 N.C. 608 , 300 S.E.2d 340, 1983 N.C. LEXIS 1110 (1983).

Presence of Victim. —

The definition of robbery necessarily carries with it the concept that the offense can only be committed in the presence of the victim. State v. Jacobs, 25 N.C. App. 500, 214 S.E.2d 254, 1975 N.C. App. LEXIS 2310 , cert. denied, 287 N.C. 666 , 216 S.E.2d 909, 1975 N.C. LEXIS 1183 (1975).

The word “presence” taken from the common-law elements and used in an indictment under this section, must be interpreted broadly and with due consideration to the main element of the crime — intimidation or force by the use or threatened use of firearms. State v. Clemmons, 35 N.C. App. 192, 241 S.E.2d 116, 1978 N.C. App. LEXIS 2922 , cert. denied, 294 N.C. 737 , 244 S.E.2d 155, 1978 N.C. LEXIS 1309 (1978).

If the force or intimidation by the use of firearms for the purpose of taking personal property has been used and caused the victim in possession or control to flee the premises and this is followed by the taking of the property in a continuous course of conduct, the taking is from the “presence” of the victim. State v. Clemmons, 35 N.C. App. 192, 241 S.E.2d 116, 1978 N.C. App. LEXIS 2922 , cert. denied, 294 N.C. 737 , 244 S.E.2d 155, 1978 N.C. LEXIS 1309 (1978); State v. Edwards, 49 N.C. App. 547, 272 S.E.2d 384, 1980 N.C. App. LEXIS 3445 (1980); State v. Herring, 74 N.C. App. 269, 328 S.E.2d 23, 1985 N.C. App. LEXIS 3425 (1985), aff'd, 316 N.C. 188 , 340 S.E.2d 105, 1986 N.C. LEXIS 1920 (1986).

Ownership of the property is generally immaterial to the offense of armed robbery as long as the proof is sufficient to establish ownership in someone other than the defendant. State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982).

Profit Immaterial. —

So great is the offense when life is endangered and threatened by the use of firearms or other dangerous weapons, that it is not of controlling consequence whether the assailants profit much or little, or nothing, from their felonious undertaking. State v. Parker, 262 N.C. 679 , 138 S.E.2d 496, 1964 N.C. LEXIS 727 (1964); State v. Jenkins, 8 N.C. App. 532, 174 S.E.2d 690, 1970 N.C. App. LEXIS 1602 (1970); State v. Rawls, 70 N.C. App. 230, 319 S.E.2d 622, 1984 N.C. App. LEXIS 3660 (1984), cert. denied, 317 N.C. 713 , 347 S.E.2d 451, 1986 N.C. LEXIS 2471 (1986).

Instructions on Weapon Held During Robbery. —

Trial court did not err in overruling defendant’s objections to the prosecutor’s closing arguments because, while the prosecutor argued to the jury that the shotgun defendant held during a robbery could be a dangerous weapon even if it was unloaded and by suggesting that the shotgun could have been used to strike the victim, defendant failed to show prejudice where, after closing arguments, the trial court admonished the jury to follow the court’s instructions and not the attorneys’ statements of the law and instructed the jury on the law and elements of armed robbery. State v. Martin, 248 N.C. App. 84, 786 S.E.2d 426, 2016 N.C. App. LEXIS 664 (2016).

Illustrative Cases. —

Where one of the robbers approached victim, pointed a gun at him, and victim did not move and was not injured the act of threatening with a gun was an inherent inevitable feature of the robbery and was insufficient to support a conviction for kidnapping. State v. Beatty, 347 N.C. 555 , 495 S.E.2d 367, 1998 N.C. LEXIS 7 (1998).

The evidence was sufficient for a conviction on armed robbery under this section, where an inference existed that defendant took money from the victim’s person after having shot him with a firearm even though other evidence supported a contrary conclusion that the shooting and the taking of the money were two separate transactions. State v. Jarrett, 137 N.C. App. 256, 527 S.E.2d 693, 2000 N.C. App. LEXIS 318 (2000).

Defendant was properly convicted of robbery because one of the victims testified that defendant, along with another, burst into a home with guns, demanded that the occupants give up their money and place it onto a table, and that the victim put money on the table in compliance with the demands. State v. Bethea, 156 N.C. App. 167, 575 S.E.2d 831, 2003 N.C. App. LEXIS 68 (2003).

Evidence of, inter alia, defendant’s prior history or robbing people, defendant’s statement made prior to the commission of the alleged crime that he had planned to rob the victim when the victim returned to buy cocaine, and defendant’s actions was sufficient for the jury to convict defendant of armed robbery. State v. Gillis, 158 N.C. App. 48, 580 S.E.2d 32, 2003 N.C. App. LEXIS 941 (2003).

Trial court properly denied defendant’s motion to dismiss the armed robbery charges against him, and the evidence was sufficient to support defendant’s armed robbery conviction, where: (1) the sole eyewitness testified that she heard someone yell “give me your shit” and “I don’t have anything, man,” (2) the eyewitness testified that defendant rummaged through the victim’s car, (3) the victim’s wallet and other personal items were ultimately found strewn outside his car, and (4) prior to the shooting, the eyewitness saw the victim put a handgun in his car. State v. Johnson, 161 N.C. App. 504, 588 S.E.2d 488, 2003 N.C. App. LEXIS 2194 (2003).

Evidence was sufficient to show defendant and another acted in concert to robbery with a dangerous weapon, including testimony that defendant and another had common a plan or purpose to obtain money to go to Florida. State v. Combs, 182 N.C. App. 365, 642 S.E.2d 491, 2007 N.C. App. LEXIS 696 , aff'd, 361 N.C. 585 , 650 S.E.2d 594, 2007 N.C. LEXIS 1005 (2007).

There was sufficient evidence of robbery with a dangerous weapon where defendant used a firearm, endangering and threatening the lives of his victims, in order to take their personal property. State v. Williams, 201 N.C. App. 103, 685 S.E.2d 534, 2009 N.C. App. LEXIS 1856 (2009).

Conviction Upheld. —

Defendant’s conviction of robbery with a firearm, G.S. 14-87 , and possession of a handgun by a felon, G.S. 14-415.1 , was affirmed; the trial court did not err in admitting the in-court and out-of-court identification of defendant as the perpetrator of a robbery by a store clerk, the State presented a sufficient foundation for the admission of a videotape of the robbery into evidence, and testimony by a police officer which allegedly stated that defendant was a liar did not rise to the level of plain error. State v. Lawson, 159 N.C. App. 534, 583 S.E.2d 354, 2003 N.C. App. LEXIS 1495 (2003).

Substantial evidence was presented from which a jury could find a defendant committed robbery with a dangerous weapon, in violation of G.S. 14-87(a), because a co-defendant testified that defendant retrieved a gun from the co-defendant before entering victims’ hotel room, a victim testified that one of the defendants brandished a gun upon entering the hotel room, and the other victim testified the firearm appeared to be a black revolver and that one of the robbers poked the victim in the head several times with the gun, so the defendant’s motion to dismiss was properly denied. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93, 2007 N.C. App. LEXIS 1050 (2007).

Defendant was not entitled to a jury instruction on second-degree murder or manslaughter since the State proceeded on a theory of felony murder only, relying on robbery with a dangerous weapon as the underlying felony, and the evidence of the G.S. 14-87(a) elements was not in conflict; defendant had permission to access the victim’s marijuana in a temporary manner, but then used a dangerous weapon to remove the drug from the victim’s possession. State v. Gwynn, 362 N.C. 334 , 661 S.E.2d 706, 2008 N.C. LEXIS 486 (2008).

Trial court did not err in denying defendant’s motion to dismiss a robbery charged based on insufficient evidence of the use of a firearm during the robbery, as the law would presume the instrument to be what defendant’s conduct represented it to be — a firearm or other dangerous weapon. State v. Ford, 194 N.C. App. 468, 669 S.E.2d 832, 2008 N.C. App. LEXIS 2228 (2008).

Substantial evidence supported a conviction for robbery with a dangerous weapon where defendant and another formulated a plan to rob the victim, obtained a weapon, and went to the victim’s house, entered the house, which was occupied by both the victim and a friend, and began shooting. Although the circumstantial evidence suggested that defendant actually took the friend’s pocketbook and remove it from the house, the crime of robbery with a dangerous weapon was complete even before any actual removal of the pocketbook. State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129, 2010 N.C. App. LEXIS 684 (2010).

Ineffective Assistance of Counsel Not Found. —

Defendant’s conviction of robbery with a firearm, G.S. 14-87 , and possession of a handgun by a felon, G.S. 14-415.1 , was affirmed; defendant did not receive ineffective assistance of counsel pursuant to the test in G.S. 15A-1443(a) , as counsel did not err in failing to object to the identification of defendant, or to the introduction of a videotape of the robbery, based on a legitimate trial strategy. State v. Lawson, 159 N.C. App. 534, 583 S.E.2d 354, 2003 N.C. App. LEXIS 1495 (2003).

IV.Attempted Robbery

Attempt Is of Equal Gravity with Completed Act. —

This section makes the attempt to commit the offense an offense of equal gravity with the completed act. State v. Sanders, 280 N.C. 81 , 185 S.E.2d 158, 1971 N.C. LEXIS 1094 (1971); State v. Cherry, 29 N.C. App. 599, 225 S.E.2d 119, 1976 N.C. App. LEXIS 2577 (1976).

Elements of attempted armed robbery are: (1) The unlawful attempted taking of personal property from another, (2) the possession, use or threatened use of “firearms or other dangerous weapon, implement or means,” and (3) danger or threat to the life of the victim. State v. Torbit, 77 N.C. App. 816, 336 S.E.2d 122, 1985 N.C. App. LEXIS 4395 (1985).

An attempted robbery with a dangerous weapon occurs when a person, with the specific intent to unlawfully deprive another of personal property by endangering or threatening his or her life with a dangerous weapon, does some overt act calculated to bring about this result. State v. Allison, 319 N.C. 92 , 352 S.E.2d 420, 1987 N.C. LEXIS 1823 (1987).

Attempt Completes Offense. —

An attempt to take money or other personal property from another under the circumstances delineated by this section constitutes an accomplished offense, and is punishable to the same extent as if there was an actual taking. State v. Spratt, 265 N.C. 524 , 144 S.E.2d 569, 1965 N.C. LEXIS 1032 (1965).

Offense is complete if there is an attempt to take property by use of firearms or other dangerous weapons. Thus, all that is necessary to prove the offense is that an attempt was made to rob by the use of a firearm or other dangerous weapon. State v. Thompson, 64 N.C. App. 485, 307 S.E.2d 838, 1983 N.C. App. LEXIS 3301 (1983), cert. denied, 313 N.C. 513 , 329 S.E.2d 399, 1985 N.C. LEXIS 1671 (1985).

The attempt to take property by the forbidden means, all other elements being present, completes the offense of armed robbery. State v. Jenkins, 8 N.C. App. 532, 174 S.E.2d 690, 1970 N.C. App. LEXIS 1602 (1970).

The offense is complete if there is either a taking or an attempt to take the personal property of another by the means and in the manner prescribed by this section, but there must be one or the other. State v. Evans, 279 N.C. 447 , 183 S.E.2d 540, 1971 N.C. LEXIS 845 (1971); State v. Clemmons, 35 N.C. App. 192, 241 S.E.2d 116, 1978 N.C. App. LEXIS 2922 , cert. denied, 294 N.C. 737 , 244 S.E.2d 155, 1978 N.C. LEXIS 1309 (1978).

Under this section an attempt to rob another of personal property, made with the use of a dangerous weapon, whereby the life of a person is endangered or threatened, is a completed crime and is punishable to the same extent as if the property had been taken as intended. State v. Price, 280 N.C. 154 , 184 S.E.2d 866, 1971 N.C. LEXIS 1108 (1971); State v. Cherry, 29 N.C. App. 599, 225 S.E.2d 119, 1976 N.C. App. LEXIS 2577 (1976).

Under this section the offense is complete if there is an attempt to take personal property by use of firearms or other dangerous weapon. State v. Duncan, 14 N.C. App. 113, 187 S.E.2d 353, 1972 N.C. App. LEXIS 2050 (1972); State v. May, 292 N.C. 644 , 235 S.E.2d 178, 1977 N.C. LEXIS 1167 , cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288, 1977 U.S. LEXIS 3839 (1977); State v. Hunt, 297 N.C. 447 , 255 S.E.2d 182, 1979 N.C. LEXIS 1252 (1979).

If all of the elements are present, the offense is complete whether the taking is successful or amounts only to an attempt to take personalty from the victim. State v. Kinsey, 17 N.C. App. 57, 193 S.E.2d 430, 1972 N.C. App. LEXIS 1562 (1972), cert. denied, 282 N.C. 674 , 194 S.E.2d 153, 1973 N.C. LEXIS 1145 (1973).

Intent Required. —

One of the elements of an attempt to commit a crime is that defendant must have intent to commit the substantive offense. State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981).

It is immaterial whether the intent was formed before or after force was used upon the victim, provided that the theft and force are aspects of a single transaction. State v. Faison, 330 N.C. 347 , 411 S.E.2d 143, 1991 N.C. LEXIS 802 (1991).

Overt Act Required. —

There can be no attempt to commit robbery in the absence of an overt act in part execution of the intent to commit the crime. State v. Powell, 6 N.C. App. 8, 169 S.E.2d 210, 1969 N.C. App. LEXIS 1130 (1969).

An attempt occurs when the defendant, with the requisite intent to rob, does some overt act calculated and designed to bring about the robbery, thereby endangering or threatening the life of a person. State v. Price, 280 N.C. 154 , 184 S.E.2d 866, 1971 N.C. LEXIS 1108 (1971); State v. Cherry, 29 N.C. App. 599, 225 S.E.2d 119, 1976 N.C. App. LEXIS 2577 (1976); State v. May, 292 N.C. 644 , 235 S.E.2d 178, 1977 N.C. LEXIS 1167 , cert. denied, 434 U.S. 928, 98 S. Ct. 414, 54 L. Ed. 2d 288, 1977 U.S. LEXIS 3839 (1977).

In order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, should have done some over act adapted to, approximating, and which in the ordinary and likely course of things would result in the commission thereof. State v. Dowd, 28 N.C. App. 32, 220 S.E.2d 393, 1975 N.C. App. LEXIS 1671 (1975).

Attempted armed robbery occurs when a person with the requisite intent does some overt act calculated to unlawfully deprive another of personal property by endangering or threatening his life with a firearm. State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439, 1981 N.C. LEXIS 1331 (1981).

Court Guided by Peculiar Facts of Case. —

In determining whether a person has been guilty of the offense of attempting to commit robbery, the courts are guided by the peculiar facts of each case, in order to decide whether the acts of the defendant have advanced beyond the stage of mere preparation, to the point where it can be said that an attempt to commit the crime has been made. The question is one of degree, and cannot be controlled by exact definition. State v. Powell, 6 N.C. App. 8, 169 S.E.2d 210, 1969 N.C. App. LEXIS 1130 (1969).

Overt Act Held to Have Occurred Before Interruption. —

Where defendant entered a store, pulled a gun from under his shirt, pointed it at the proprietor at close range and ordered the proprietor not to move and not to put his hands under the counter, and having obtained the owner’s compliance with his demands, then proceeded to order him to move away from the counter, directing him to move to the center of the store, and at this point the intended robbery was interrupted, the crime of attempted armed robbery was complete because defendant had manifested an intent to rob and had done an affirmative act beyond mere preparation in furtherance of that intent. State v. Smith, 300 N.C. 71 , 265 S.E.2d 164, 1980 N.C. LEXIS 1036 (1980).

Evidence Held to Raise Suspicion That No Overt Act Occurred. —

In a prosecution for attempted armed robbery, the evidence did no more than place defendant in the hardware store with a pistol in his belt. He had no accomplice. He did not make a gesture indicating an intent to touch, withdraw or otherwise threaten the use of the pistol. There was, therefore, no threat, actual or constructive, of the use of a deadly weapon. He did not make a demand, express or implied, for money or other property. The evidence raised a suspicion that defendant may have intended to commit a robbery or other crime but fell short of showing an overt act in furtherance of an intent to rob. State v. Jacobs, 31 N.C. App. 582, 230 S.E.2d 550, 1976 N.C. App. LEXIS 2066 (1976).

Although lurking outside a place of business with a loaded pistol may be unlawful conduct, it does not constitute the sort of overt act which would clearly show that defendant attempted to rob that business. State v. Parker, 66 N.C. App. 355, 311 S.E.2d 327, 1984 N.C. App. LEXIS 2864 (1984).

Evidence Held Sufficient. —

Despite testimony of victim to a completed armed robbery, where defendant testified that when he went into house he intended to rob both men who were there, but that after he shot murder victim the other victim asked defendant not to shoot him and threw his wallet toward defendant and that defendant left without taking the wallet, this was evidence from which the jury could find all the elements of attempted armed robbery so as to support a verdict of felony murder based on attempted armed robbery. State v. Blake, 326 N.C. 31 , 387 S.E.2d 160, 1990 N.C. LEXIS 7 (1990).

The evidence supported the defendant’s conviction of armed robbery, where he took marijuana from a guest of the victim, and when the victim would not move from the doorway, he brandished a pistol at her, threatened to shoot her, and took $31 off her television set as he was leaving, which established a continuous transaction, with the threatened use of a firearm so connected in time and circumstance with the actual taking as to be inseparable. State v. McDonald, 130 N.C. App. 263, 502 S.E.2d 409, 1998 N.C. App. LEXIS 913 (1998).

Although defendant testified that defendant was attempting to retrieve a necklace which another person took from defendant in an earlier robbery when defendant pointed a gun at the other person and told the other person “to give it up,” evidence supported jury’s finding that defendant had felonious intent, and the appellate court sustained defendant’s conviction for attempted robbery with a firearm. State v. Poole, 154 N.C. App. 419, 572 S.E.2d 433, 2002 N.C. App. LEXIS 1444 (2002), cert. denied, 356 N.C. 689 , 578 S.E.2d 589, 2003 N.C. LEXIS 285 (2003).

Evidence was sufficient to support defendants’ convictions of attempted robbery with a firearm where they did an overt act calculated and designed to rob the victim when they brandished their weapons in the apartment as one defendant moved toward the victim with the intent to take money from his pockets. State v. Calderon, 242 N.C. App. 125, 774 S.E.2d 398, 2015 N.C. App. LEXIS 566 (2015).

Ineffective Assistance of Counsel Not Shown. —

In a case in which defendant was convicted of violating G.S. 14-32(b) and G.S. 14-87 and he appealed, arguing that his counsel was ineffective: (1) in cross-examining a detective, (2) in failing to impeach a State’s witness with her prior convictions of assault, disorderly conduct or attempted robbery; and (3) in being unable to introduce defense exhibit 6, which was the victim’s medical record noting a polysubstance abuse history, due to counsel’s lack of preparation, even assuming arguendo that the performance of defendant’s trial counsel was deficient for the above reasons, defendant had not demonstrated that there was a reasonable probability that the result of the trial would have been different but for his trial counsel’s actions. Defendant was identified in a police photo line-up, and he admitted that he intended to rob the victim. State v. Wilson, 203 N.C. App. 110, 689 S.E.2d 917, 2010 N.C. App. LEXIS 505 (2010).

V.Use or Threatened Use of Dangerous Weapon
A.In General

Main element of the offense is force or intimidation occasioned by the use or threatened use of firearms. State v. Mull, 224 N.C. 574 , 31 S.E.2d 764, 1944 N.C. LEXIS 434 (1944); State v. Waddell, 279 N.C. 442 , 183 S.E.2d 644, 1971 N.C. LEXIS 844 (1971); State v. Ballard, 280 N.C. 479 , 186 S.E.2d 372, 1972 N.C. LEXIS 1267 (1972); State v. Clemmons, 35 N.C. App. 192, 241 S.E.2d 116, 1978 N.C. App. LEXIS 2922 , cert. denied, 294 N.C. 737 , 244 S.E.2d 155, 1978 N.C. LEXIS 1309 (1978); State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982); State v. Haddick, 76 N.C. App. 524, 333 S.E.2d 518, 1985 N.C. App. LEXIS 4240 (1985).

The gist of the offense of robbery with firearms is the accomplishment of the robbery by the use of or threatened use of firearms or other dangerous weapon. State v. Williams, 265 N.C. 446 , 144 S.E.2d 267, 1965 N.C. LEXIS 1007 (1965); State v. Waddell, 279 N.C. 442 , 183 S.E.2d 644, 1971 N.C. LEXIS 844 (1971); State v. Black, 286 N.C. 191 , 209 S.E.2d 458, 1974 N.C. LEXIS 1194 (1974).

In an indictment for robbery with firearms or other dangerous weapons, the gist of the offense is not the taking of personal property, but a taking or attempted taking by force or putting in fear by the use of firearms or other dangerous weapons. State v. Harris, 8 N.C. App. 653, 175 S.E.2d 334, 1970 N.C. App. LEXIS 1641 (1970).

In an indictment for robbery, the kind and value of the property taken is not material — the gist of the offense is not the taking, but a taking by force or putting in fear. State v. Rogers, 273 N.C. 208 , 159 S.E.2d 525, 1968 N.C. LEXIS 580 (1968); State v. Johnson, 20 N.C. App. 53, 200 S.E.2d 395, 1973 N.C. App. LEXIS 1467 (1973).

The gist of the offense of armed robbery is not the taking but the taking by force or putting in fear. Testimony by the victim of the armed robbery that he was scared is sufficient to meet the requirements of the statute. State v. Swaney, 277 N.C. 602 , 178 S.E.2d 399, 1971 N.C. LEXIS 1056 , cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428, 1971 U.S. LEXIS 1801 (1971); State v. Spillars, 280 N.C. 341 , 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972).

The gravamen of the offense of armed robbery is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery. State v. Ballard, 280 N.C. 479 , 186 S.E.2d 372, 1972 N.C. LEXIS 1267 (1972).

The gist of the offense of robbery with firearms is the accomplishment of the robbery by the use or threatened use of firearms or other dangerous weapons whereby the life of a person is endangered or threatened. State v. Harris, 281 N.C. 542 , 189 S.E.2d 249, 1972 N.C. LEXIS 1107 (1972); State v. Martin, 47 N.C. App. 223, 267 S.E.2d 35, 1980 N.C. App. LEXIS 3088 (1980).

Defendant’s claim that the trial court erred in allowing a victim of his armed robbery to testify as to how she felt when the gun was placed to her head was reviewed by plain error standard because he had not preserved that issue for review by having raised it in the trial court, pursuant to N.C. R. App. P. 10(b)(1); the court found that the testimony was relevant, pursuant to G.S. 8C-1 , Rule 401, in that her testimony as to her fear for her life and her intimidation proved the main element of the offense of robbery with a dangerous weapon in violation of G.S. 14-87 . State v. Jackson, 161 N.C. App. 118, 588 S.E.2d 11, 2003 N.C. App. LEXIS 1980 (2003).

Possession, use or threatened use of a firearm is a separate element from “endangering or threatening” the life of a person in the crime of armed robbery. State v. Thomas, 85 N.C. App. 319, 354 S.E.2d 891, 1987 N.C. App. LEXIS 2588 (1987).

Representations of Firearm and Reasonable Belief by Victim Sufficient. —

The State need only prove that the defendant represented that he had a firearm and that circumstances led the victim reasonably to believe that the defendant had a firearm and might use it. State v. Lee, 128 N.C. App. 506, 495 S.E.2d 373, 1998 N.C. App. LEXIS 108 (1998).

To obtain a conviction for armed robbery, it is not necessary for the State to prove that the defendant displayed the firearm to the victim. Proof requires that the victim reasonably believed that defendant possessed, or used or threatened to use a firearm in the perpetration of the crime. State v. Lee, 128 N.C. App. 506, 495 S.E.2d 373, 1998 N.C. App. LEXIS 108 (1998).

Question Is Whether Use of Particular Instrument Threatened or Endangered Life. —

In determining whether evidence of the use of a particular instrument constitutes evidence of use of “any firearms or other dangerous weapon, implement or means” within the prohibition of this section, the determinative question is whether the evidence was sufficient to support a jury finding that a person’s life was in fact endangered or threatened. State v. Alston, 305 N.C. 647 , 290 S.E.2d 614, 1982 N.C. LEXIS 1342 (1982); State v. Joyner, 67 N.C. App. 134, 312 S.E.2d 681, 1984 N.C. App. LEXIS 3008 (1984), aff'd, 312 N.C. 779 , 324 S.E.2d 841, 1985 N.C. LEXIS 1502 (1985).

In determining whether a robbery with a particular implement constitutes a violation of this section, the determinative question is whether the evidence was sufficient to support a jury finding that a person’s life was in fact endangered or threatened. State v. Joyner, 312 N.C. 779 , 324 S.E.2d 841, 1985 N.C. LEXIS 1502 (1985).

Not Whether Victim Was Scared or in Fear of His Life. —

The question in an armed robbery case is whether a person’s life was in fact endangered or threatened by defendant’s possession, use or threatened use of a dangerous weapon, not whether the victim was scared or in fear of his life. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

The question under this section is whether a person’s life was in fact endangered or threatened by defendant’s possession, use or threatened use of the opened knife, not whether the person was scared or in fear of his life. State v. Moore, 279 N.C. 455 , 183 S.E.2d 546, 1971 N.C. LEXIS 846 (1971).

Where there was evidence sufficient to show that the victim was in fear for her life, the State did not have to prove such fear to overcome defendant’s motion for nonsuit. Rather, the State could prove, at the least, that during the course of the robbery or attempted robbery, there was a threatened use of a dangerous weapon which endangered or threatened the life of the victim. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

“Endangered or Threatened” Construed Conjunctively. —

Although this section sets forth disjunctively, “endangered or threatened,” several means or ways by which this offense may be committed, a warrant thereunder correctly charges them conjunctively, as “endangered and threatened.” State v. Swaney, 277 N.C. 602 , 178 S.E.2d 399, 1971 N.C. LEXIS 1056 , cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428, 1971 U.S. LEXIS 1801 (1971).

Presumption That Victim Was Endangered or Threatened. —

Where defendant uses a dangerous weapon per se, there is a mandatory presumption that the victim’s life was in fact endangered or threatened. State v. Wiggins, 78 N.C. App. 405, 337 S.E.2d 198, 1985 N.C. App. LEXIS 4309 (1985).

Effect on Presumption of Evidence that Victim Was Not Endangered or Threatened. —

Where there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim’s life was endangered or threatened is mandatory. However, when any evidence is introduced tending to show that the life of the victim was not endangered or threatened, the mandatory presumption disappears, leaving only a mere permissive inference which permits but does not require the jury to infer the elemental fact of danger or threat to life from the basic fact proven, that is, robbery with what appeared to the victim to be a firearm or other dangerous weapon. State v. Allen, 74 N.C. App. 449, 328 S.E.2d 615, 1985 N.C. App. LEXIS 3515 (1985), rev'd, 317 N.C. 119 , 343 S.E.2d 893, 1986 N.C. LEXIS 2403 (1986).

While evidence that defendant was found with an inoperable pistol or that he used a cap pistol removed the mandatory presumption of danger or threat to life, allowing the jury to consider the lesser included offense of common law robbery, the evidence was not so compelling as to prevent a permissive inference of danger or threat to life or to require a directed verdict in defendant’s favor as to the charge of robbery with a dangerous weapon, as defendant had ample time to have discarded the barrel portion of the pistol which was found in his possession, and, testimony at trial clearly showed that a gun barrel was seen in defendant’s hand at the time of the robbery. State v. Allen, 74 N.C. App. 449, 328 S.E.2d 615, 1985 N.C. App. LEXIS 3515 (1985), rev'd, 317 N.C. 119 , 343 S.E.2d 893, 1986 N.C. LEXIS 2403 (1986).

Danger or Threat Must Be Shown Beyond Reasonable Doubt. —

For a conviction of robbery with firearms or other dangerous weapons, the State must further show beyond a reasonable doubt that the life of a person was endangered or threatened by the defendant’s, or his accomplice’s, possession, use or threatened use of a firearm or other dangerous weapon, implement or means; proof of this additional element is not required for conviction of the offense of common-law robbery. State v. Evans, 279 N.C. 447 , 183 S.E.2d 540, 1971 N.C. LEXIS 845 (1971).

Serious injury need not be shown at all in a prosecution for armed robbery. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971).

Nor Intent to Kill. —

Neither the infliction of serious injury nor an intent to kill is an essential element of the charge of armed robbery. State v. Wheeler, 21 N.C. App. 514, 204 S.E.2d 862, 1974 N.C. App. LEXIS 1855 (1974).

Evidence of a continuing threat meets the element of endangering or threatening a person’s life in an armed robbery charge. State v. Thomas, 85 N.C. App. 319, 354 S.E.2d 891, 1987 N.C. App. LEXIS 2588 (1987).

In a prosecution for robbery with a dangerous weapon, the evidence was sufficient to allow a jury to find that defendant’s use of a knife to threaten the victim’s life was part of a continuous transaction beginning when defendant stole videos from the victim, as the victim chased defendant after he took the videos, and defendant’s use of the knife was necessary to allow defendant to successfully complete his taking of the videos. State v. Bellamy, 159 N.C. App. 143, 582 S.E.2d 663, 2003 N.C. App. LEXIS 1434 , cert. denied, 357 N.C. 579 , 589 S.E.2d 130, 2003 N.C. LEXIS 1306 (2003).

Continuing Threat Held to Extend to Victim’s Subsequent Acts. —

Where, although the victim did not testify that defendant actually pointed the gun at her at the time she gave her ring to his accomplice, earlier there had been such “use” of the firearm as to force her to commit certain acts, and it had been made clear to her on several occasions prior to the actual taking of her ring that the firearm would be used against her if she did not comply, this continuing threat extended to every subsequent act by her, and thus constituted a “threatened use” of a firearm which “endangered or threatened” her life within the terms of subsection (a). State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

Where there was a display of a firearm which induced the victim to acquiesce to the defendants’ demands, and on several occasions the defendants indicated that they would use the weapon if the victim resisted, the conduct of the defendants rose to the level of a continuing threat of the use of a firearm sufficient to support conviction of the defendants under this section. State v. Randolph, 312 N.C. 198 , 321 S.E.2d 864, 1984 N.C. LEXIS 1793 (1984).

Intent to Harm Not Required. —

This section does not require the State to prove that defendant intended to cut the victim, it requires only a showing that defendant used or threatened to use a dangerous weapon or implement and posed a danger or threat to the life of the victim. State v. Harris, 115 N.C. App. 560, 445 S.E.2d 626, 1994 N.C. App. LEXIS 714 (1994).

Actual Possession of Weapon Necessary. —

The purpose and intent of this section is to provide for more severe punishment for the commission of robbery with firearms, and other specified weapons, than is prescribed for common-law robbery, and construing the title and context of the statute together to ascertain the legislative intent, it was held that possession of firearms or other of the specified weapons is necessary to constitute the offense of “robbery with firearms” under this section, and it was reversible error for the court to refuse to so instruct the jury in accordance with defendants’ prayers for special instructions upon evidence tending to show that defendants sought to make their victim believe they had firearms, and threatened to use same, but that they actually carried no weapon. State v. Keller, 214 N.C. 447 , 199 S.E. 620, 1938 N.C. LEXIS 372 (1938).

The actual possession and use or threatened use of firearms or other dangerous weapon is necessary to constitute the offense of robbery with firearms or other dangerous weapon. Whether it was a firearm or a toy pistol, and if a toy pistol, whether it was a dangerous weapon were questions for the jury under proper instructions. State v. Faulkner, 5 N.C. App. 113, 168 S.E.2d 9, 1969 N.C. App. LEXIS 1290 (1969).

But Mere Possession Insufficient. —

Mere possession of a firearm during the course of a robbery is insufficient to support an armed robbery conviction under this section; rather, the section includes an additional requirement that the possession of the firearm threaten or endanger the life of a person. State v. Gibbons, 303 N.C. 484 , 279 S.E.2d 574, 1981 N.C. LEXIS 1189 (1981); State v. Bartow, 77 N.C. App. 103, 334 S.E.2d 480, 1985 N.C. App. LEXIS 4020 (1985).

The mere possession of a firearm during the course of taking property is not a violation of subsection (a) of this section; the firearm must be used to endanger or threaten the life of a person, as that element is the essence of armed robbery. State v. Thomas, 85 N.C. App. 319, 354 S.E.2d 891, 1987 N.C. App. LEXIS 2588 (1987).

Operable Gun Required. —

Subsection (a) is distinguishable because the only way a person’s life would be threatened is with the use of an operable gun; the armed robbery statute necessarily implies that the gun be operable. To the contrary, G.S. 14-269.2(b) states it is illegal to carry any gun on school property. In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

Statement in an indictment that defendant kept his hand in his coat while demanding money was insufficient to support a charge of armed robbery in violation of G.S. 14-87 , because it failed either to state expressly that the weapon was dangerous or to allege facts that showed the dangerous nature of the alleged weapon. State v. Marshall, 188 N.C. App. 744, 656 S.E.2d 709, 2008 N.C. App. LEXIS 277 (2008).

When the evidence shows that a firearm, or what appeared to be a firearm, was used in accomplishing a robbery, and there is no evidence that the firearm was incapable of endangering or threatening the victim’s life, the jury may infer, if it is not required to find, that the victim’s life was endangered or threatened by the weapon. State v. Hewett, 87 N.C. App. 423, 361 S.E.2d 104, 1987 N.C. App. LEXIS 3167 (1987).

Force May Be Actual or Constructive. —

The element of force in the offense of robbery may be actual or constructive. State v. Norris, 264 N.C. 470 , 141 S.E.2d 869, 1965 N.C. LEXIS 1220 (1965).

“Actual Force”. —

Actual force implies physical violence. State v. Norris, 264 N.C. 470 , 141 S.E.2d 869, 1965 N.C. LEXIS 1220 (1965).

“Constructive Force”. —

Under constructive force are included all demonstrations of force, menaces, and other means by which the person robbed is put in fear sufficient to suspend the free exercise of his will or prevent resistance to the taking. State v. Norris, 264 N.C. 470 , 141 S.E.2d 869, 1965 N.C. LEXIS 1220 (1965).

Exhibition of a pistol while demanding money conveyed the message loud and clear that the victim’s life was being threatened. State v. Green, 2 N.C. App. 170, 162 S.E.2d 641, 1968 N.C. App. LEXIS 892 (1968).

Verbal Demand to Surrender Money Not Required. —

The fact that neither defendant nor a companion made any verbal demand on the prosecuting witness to surrender money did not entitle defendant to a nonsuit in an armed robbery prosecution, where evidence showed that the witness had immediately pitched the money onto the floor when a gun was pointed in his face. State v. Jenkins, 8 N.C. App. 532, 174 S.E.2d 690, 1970 N.C. App. LEXIS 1602 (1970).

Threats Expressed by Nonverbal Conduct. —

Threats under this section may be expressed by nonverbal conduct as well as by words, and the fact that defendant left the pistol stuck in his belt or pants instead of pointing it directly at his victim did not lessen his implied threat to use it or the danger to the life of his victim had he not yielded. State v. Allen, 47 N.C. App. 482, 267 S.E.2d 514, 1980 N.C. App. LEXIS 3131 (1980).

Assault on Victim’s Husband as Threat. —

Where victim was standing about a foot from her husband during defendant’s assault upon and robbery of him, and saw defendant reach for her husband’s notebook, knock him to the ground, and take her husband’s watch and wallet, it was clear that defendant made a threat to victim’s life, which threat did not end when defendant finished robbing her husband but continued through the time he took victim’s shoulder bag, even though he never pointed his gun at her, told her to give him her bag, or verbally threatened her life, as defendant’s assault of victim’s husband in order to take his property spoke louder than any words of threat. State v. Thomas, 85 N.C. App. 319, 354 S.E.2d 891, 1987 N.C. App. LEXIS 2588 (1987).

Use of Gun to Facilitate Escape Held Concomitant with Robbery Attempt. —

Defendant was not entitled to dismissal of charge of attempted robbery with a firearm on grounds that there was no evidence that he displayed, used, or threatened to use the gun during the course of the attempted robbery, but that the evidence showed that his gun was used only to facilitate his escape, where the evidence was sufficient to allow the jury to conclude that defendant’s use or threatened use of his gun was concomitant with and inseparable from his robbery attempt. State v. Von Cunningham, 97 N.C. App. 631, 389 S.E.2d 286, 1990 N.C. App. LEXIS 204 (1990).

While defendant’s use of intimidation with a gun occurred after the taking of the property, the effort to avoid apprehension was an action continuous with the taking and was a part of the robbery attempt; defendant’s armed robbery conviction was affirmed where, after taking shirts from a store, defendant showed the security officers who tried to stop him that he had a gun. State v. Gaither, 161 N.C. App. 96, 587 S.E.2d 505, 2003 N.C. App. LEXIS 1996 (2003).

Where defendant was in possession of a knife, but did not use or threaten to use the knife during the taking of victim’s purse, and victim was asleep at the time of the taking, trial court erred in denying defendant’s motion to dismiss the charge of robbery with a dangerous weapon. State v. Dalton, 122 N.C. App. 666, 471 S.E.2d 657, 1996 N.C. App. LEXIS 558 (1996).

No Voluntary Intent to Abandon Fruits of Thievery. —

Defendant’s act of pushing away a shopping cart containing a stolen saw before brandishing a knife and threatening an employee did not evince a voluntary intent to abandon the fruits of defendant’s thievery; there was substantial evidence supporting conviction of robbery with a dangerous weapon. State v. Hurley, 180 N.C. App. 680, 637 S.E.2d 919, 2006 N.C. App. LEXIS 2499 (2006).

Evidence Held Sufficient. —

Even though trial judge dismissed first degree rape charge for insufficient evidence of a firearm, the judge was not required to dismiss the armed robbery charge for the same reason. State v. Lee, 128 N.C. App. 506, 495 S.E.2d 373, 1998 N.C. App. LEXIS 108 (1998).

In a prosecution for robbery with a dangerous weapon, the evidence was sufficient to allow a jury to find that defendant threatened the victim’s life when he stole videos from the victim, as he asked “You want a piece of this?” while waving a pocketknife with a two to three-inch blade at the victim, after the victim chased him. State v. Bellamy, 159 N.C. App. 143, 582 S.E.2d 663, 2003 N.C. App. LEXIS 1434 , cert. denied, 357 N.C. 579 , 589 S.E.2d 130, 2003 N.C. LEXIS 1306 (2003).

Evidence was sufficient that to show that defendant, together with an accomplice, pursuant to a common purpose, committed the crime of robbery with a dangerous weapon under G.S. 14-87(a) as defendant and her accomplice: (1) entered a store; (2) took merchandise without paying for it; (3) were pursued by a manager into the parking lot; and (4) where the chase ended when defendant shoved the manager to the ground and the accomplice attempted to run over her with an SUV; the assault with the SUV on the manager after being pushed to the ground by defendant was made in an attempt to end the manager’s pursuit of the merchandise taken from the store, and even though the accomplice was circling in the SUV, the accomplice never left the premises of the common parking lot between the store and the adjacent bank. State v. Hill, 182 N.C. App. 88, 641 S.E.2d 380, 2007 N.C. App. LEXIS 495 (2007).

Trial court did not commit error when it denied the first defendant’s motion to dismiss the charge of armed robbery under G.S. 14-87(a) of the first victim where the evidence showed that defendants entered the home with weapons and told the victims that they were being robbed, the first victim’s person was removed by threat of force from her property, and that property then was stolen in the course of the criminal activity. The fact that the first victim did not know that the property had been taken was immaterial; she was taken from her property, and her control over the property was replaced by that of defendants. State v. Cole, 199 N.C. App. 151, 681 S.E.2d 423, 2009 N.C. App. LEXIS 1380 (2009), writ denied, 368 N.C. 605 , 780 S.E.2d 833, 2015 N.C. LEXIS 1269 (2015).

In a case in which defendant appealed his conviction for robbery with the dangerous weapon, he argued unsuccessfully that the evidence was insufficient to establish robbery with a dangerous weapon. There was substantial evidence that defendant used a deadly weapon to kill the victims and then took their property, not as a mere afterthought, but with the intent of utilizing the vehicle and cellular telephones, and selling other personal property; the fact that the victims were deceased at the time of the taking was irrelevant. State v. Stitt, 201 N.C. App. 233, 689 S.E.2d 539, 2009 N.C. App. LEXIS 2252 (2009), writ denied, 377 N.C. 557 , 857 S.E.2d 531, 2021 N.C. LEXIS 508 (2021).

B.Dangerous Weapon

“Dangerous Weapon” Defined. —

By statute, the “dangerous weapon” or means must be one which endangers or threatens life. State v. Smallwood, 78 N.C. App. 365, 337 S.E.2d 143, 1985 N.C. App. LEXIS 4287 (1985).

A dangerous or deadly weapon is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm. State v. Wiggins, 78 N.C. App. 405, 337 S.E.2d 198, 1985 N.C. App. LEXIS 4309 (1985).

“Means.” —

Because the term “means” in G.S. 14-87 follows the terms “firearm,” “other dangerous weapon,” and “implement,” the legislature intended the “means” employed by an armed robber to consist of some extraneous instrument similar to a “firearm,” “implement,” or “other dangerous weapon.” State v. Duff, 171 N.C. App. 662, 615 S.E.2d 373, 2005 N.C. App. LEXIS 1367 (2005).

Rifle Used as Club. —

Rifle did not cease to be a firearm by virtue of being used as a club. State v. McNatt, 342 N.C. 173 , 463 S.E.2d 76, 1995 N.C. LEXIS 539 (1995).

Instrument Incapable of Endangering Life Is Not a Dangerous Weapon. —

No matter what an instrument appears to be, if in fact it is a cap pistol, or a toy pistol, or some other instrument incapable of threatening or endangering life, it cannot be a firearm or other dangerous weapon within the meaning of the armed robbery statute. State v. Allen, 317 N.C. 119 , 343 S.E.2d 893, 1986 N.C. LEXIS 2403 (1986).

Factors Determining Dangerousness. —

Whether an instrument can be considered a dangerous weapon depends on the nature of the instrument, the manner in which the defendant used it or threatened to use it, and in some cases the victim’s perception of the instrument and its use. State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190, 1985 N.C. LEXIS 1557 (1985).

Requirement of “External” Weapon or Instrument. —

Common sense and the clear intent of G.S. 14-87 lead the North Carolina Court of Appeals to conclude that an individual cannot possess, use, or threaten to use a dangerous weapon during a robbery where that individual is not possessing, using, or threatening to use some external weapon or instrument during the robbery; the critical difference between armed and common law robbery is that the former is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened. State v. Duff, 171 N.C. App. 662, 615 S.E.2d 373, 2005 N.C. App. LEXIS 1367 (2005).

Claim of Possession of Firearm by Defendant is Sufficient. —

Defendant’s convictions of robbery with a firearm, G.S. 14-87(a), and having attained the status of habitual felon, G.S. 14-7.3 , were affirmed; the State was only required to prove that defendant claimed that he possessed a firearm during his robberies of two stores. State v. Jarrett, 167 N.C. App. 336, 607 S.E.2d 661, 2004 N.C. App. LEXIS 2173 (2004), cert. denied, 359 N.C. 324 , 611 S.E.2d 840, 2005 N.C. LEXIS 278 (2005).

Defendant Failed to Prove Weapon Was Not Dangerous. —

There was no error in the finding that defendant used a dangerous weapon in the commission of the robbery where defendant failed to show conclusively that the weapon was not operational and did not eliminate the permissive inference of danger to the victim. State v. Duncan, 136 N.C. App. 515, 524 S.E.2d 808, 2000 N.C. App. LEXIS 59 (2000).

Dangerous Character of Weapon Presumed from Conduct. —

When a person perpetrates a robbery by brandishing an instrument which appears to be a firearm, or other dangerous weapon, in the absence of any evidence to the contrary, the law will presume the instrument to be what his conduct represents it to be — a firearm or other dangerous weapon. State v. Quick, 60 N.C. App. 771, 299 S.E.2d 815, 1983 N.C. App. LEXIS 2523 (1983); State v. Allen, 74 N.C. App. 449, 328 S.E.2d 615, 1985 N.C. App. LEXIS 3515 (1985), rev'd, 317 N.C. 119 , 343 S.E.2d 893, 1986 N.C. LEXIS 2403 (1986).

Dangerous Character of Weapon Inferred from Wound. —

Evidence tending to show that the victim of a robbery was left unconscious from a blow, inflicting a wound in the back of her head requiring eight stitches to close and causing her to be hospitalized for two weeks, was sufficient to show that the robbery was committed by the use of a dangerous weapon, since the dangerous character of the weapon may be inferred from the wound. State v. Rowland, 263 N.C. 353 , 139 S.E.2d 661, 1965 N.C. LEXIS 1285 (1965).

The evidence was clearly sufficient to raise an inference of the use of a deadly weapon when the victim had what looked like a board print on his face and he was bleeding from his face and eyes, with a broken cheekbone. State v. Phillips, 87 N.C. App. 246, 360 S.E.2d 475, 1987 N.C. App. LEXIS 3119 (1987).

Danger Inferred from Use of Knife. —

It may be inferred that the threat of use and actual use of a knife constitute a danger to a person’s life for the purposes of this section. State v. Moore, 279 N.C. 455 , 183 S.E.2d 546, 1971 N.C. LEXIS 846 (1971).

Evidence From Detective Was Sufficient to Establish Use of Knife. —

Sufficient evidence supported defendant’s conviction for robbery with a dangerous weapon in violation of G.S. 14-87(a) based on a detective’s testimony that the victim reported being robbed by a man with a knife and evidence that defendant’s wrist was lacerated during the robbery at a drive-up ATM. Defendant did not object to the detective’s testimony on what the victim told him. State v. Hill, 365 N.C. 273 , 715 S.E.2d 841, 2011 N.C. LEXIS 814 (2011).

When Character of Weapon Is a Question of Law. —

Where the alleged dangerous weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether it is dangerous within the foregoing definition is one of law, and the court must take the responsibility of so declaring. State v. Wiggins, 78 N.C. App. 405, 337 S.E.2d 198, 1985 N.C. App. LEXIS 4309 (1985).

Appearance and Manner of Use of Instrument. —

Whether an instrument is a dangerous weapon or a firearm can only be judged by the victim of a robbery from its appearance and the manner of its use. The court cannot perceive how the victims could have determined with certainty that the firearm was real unless defendant had actually fired a shot. State v. Quick, 60 N.C. App. 771, 299 S.E.2d 815, 1983 N.C. App. LEXIS 2523 (1983).

Inability to Identify Weapon. —

When a witness testified that he was robbed by use of a firearm or other dangerous weapon, his admission on cross-examination that he could not positively say it was a gun or dangerous weapon was without probative value. State v. Thompson, 297 N.C. 285 , 254 S.E.2d 526, 1979 N.C. LEXIS 1242 (1979).

A robbery victim should not be required to force the issue merely to determine the true character of the weapon. Thus, when a witness testified that he was robbed by use of a firearm or other dangerous weapon, his admission on cross-examination that he could not positively say it was a gun or dangerous weapon is without probative value. State v. Quick, 60 N.C. App. 771, 299 S.E.2d 815, 1983 N.C. App. LEXIS 2523 (1983).

Evidence elicited on cross-examination that the witness or witnesses could not positively testify that the instrument used was in fact a firearm or dangerous weapon was not of sufficient probative value to warrant submission of the lesser included offense of common-law robbery. State v. Quick, 60 N.C. App. 771, 299 S.E.2d 815, 1983 N.C. App. LEXIS 2523 (1983).

Weapon Need Not Be a Firearm. —

A weapon does not have to be a firearm to be a life-threatening weapon. State v. Funderburk, 60 N.C. App. 777, 299 S.E.2d 822, 1983 N.C. App. LEXIS 2520 (1983).

Use of Implement Which Appears to Be a Firearm. —

When a person commits a robbery by the use or threatened use of an implement which appears to be a firearm or other dangerous weapon, the law presumes, in the absence of any evidence to the contrary, that the instrument is what his conduct represents it to be — an implement endangering or threatening the life of the person being robbed. Thus, where there is evidence that a defendant has committed a robbery with what appears to the victim to be a firearm or other dangerous weapon and nothing to the contrary appears in evidence, the presumption that the victim’s life was endangered or threatened is mandatory. If the jury in such cases finds the basic fact (that the robbery was accomplished with what appeared to the victim to be a firearm or other dangerous weapon), the jury must find the elemental fact (that a life was endangered or threatened). This is so because, when no evidence is introduced tending to show that a life was not endangered or threatened, no issue is raised as to the nonexistence of the elemental facts and the jury may be directed to find the elemental facts if it finds that basic facts do exist beyond a reasonable doubt. State v. Joyner, 312 N.C. 779 , 324 S.E.2d 841, 1985 N.C. LEXIS 1502 (1985).

Use of Implement Which Appears to Be a Firearm — Function of Jury. —

In an armed robbery case, the jury may conclude that the weapon is what it appears to the victim to be in the absence of any evidence to the contrary. If, however, there is any evidence that the weapon was, in fact, not what it appeared to the victim to be, the jury must determine what, in fact, the instrument was. Finally, if other evidence shows conclusively that the weapon was not what it appeared to be, then the jury should not be permitted to find that it was what it appeared to be. State v. Allen, 317 N.C. 119 , 343 S.E.2d 893, 1986 N.C. LEXIS 2403 (1986).

Where there was evidence that the instrument used by defendant in a robbery appeared to be a firearm capable of endangering or threatening the life of the victim, and there was also evidence that the instrument was either a cap pistol or an inoperative firearm incapable of threatening or endangering the life of the victim, it was for the jury to determine the nature of the weapon. The jury should have been instructed that they could, but were not required to, infer from the instrument’s appearance to the victim that it was a firearm or other dangerous weapon. State v. Allen, 317 N.C. 119 , 343 S.E.2d 893, 1986 N.C. LEXIS 2403 (1986).

Same — Instruction to Jury. —

In a case where the instrument used to commit a robbery is described as appearing to be a firearm or other dangerous weapon capable of threatening or endangering the life of the victim, and there is no evidence to the contrary, it would be proper to instruct the jury to conclude that the instrument was what it appeared to be. However, the jury should not be so instructed if there is evidence that the instrument was not, in fact, such a weapon, but was a toy pistol or some other instrument incapable of threatening or endangering the victim’s life, even if the victim thought otherwise. State v. Allen, 317 N.C. 119 , 343 S.E.2d 893, 1986 N.C. LEXIS 2403 (1986).

Absence of Firing Pin from Firearm. —

The purpose of subsection (a) of this section would be frustrated or defeated if the court accepted defendant’s contention that in the absence of a firing pin, a rifle is not a firearm under this section. The robbery victim should not have to force such issues of whether the instrument actually possesses a firing pin, whether the instrument is loaded, or whether the instrument is real. State v. Joyner, 67 N.C. App. 134, 312 S.E.2d 681, 1984 N.C. App. LEXIS 3008 (1984), aff'd, 312 N.C. 779 , 324 S.E.2d 841, 1985 N.C. LEXIS 1502 (1985).

Use of Pistol as Club. —

A pistol used as a club could be as dangerous as a blackjack. State v. Funderburk, 60 N.C. App. 777, 299 S.E.2d 822, 1983 N.C. App. LEXIS 2520 (1983).

BB Rifle. —

Testimony of defendant that the rifle was a BB rifle constituted affirmative evidence which indicated that the victims’ lives were not endangered or threatened in fact by his possession, use or threatened use of the rifle and was affirmative testimony tending to prove the absence of an element of the offense charged under this section; such evidence required submission of the case to the jury on the lesser included offense of common-law robbery as well as the greater offense of robbery with firearms or other dangerous weapons. State v. Alston, 305 N.C. 647 , 290 S.E.2d 614, 1982 N.C. LEXIS 1342 (1982).

BB Gun. —

Defendant’s conviction of robbery with a dangerous weapon by the use of a BB gun required evidence that a BB gun was a dangerous weapon, as well as a jury instruction on the definition of a dangerous weapon. State v. Fleming, 148 N.C. App. 16, 557 S.E.2d 560, 2001 N.C. App. LEXIS 1276 (2001).

Pellet Gun. —

The testimony by defendant that the rifle he used during the robbery was a Remington pellet gun was sufficient to support a jury finding that the lives of the victims were endangered or threatened by his possession, use or threatened use of the rifle. State v. Alston, 305 N.C. 647 , 290 S.E.2d 614, 1982 N.C. LEXIS 1342 (1982).

A pellet gun may be a dangerous weapon per se, or at a minimum, such a determination must be made upon a consideration of the instrument’s use. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24, 1994 N.C. App. LEXIS 1079 (1994).

Where defendant placed a pellet gun into the clerk’s back, pointed directly at her kidney, the evidence showed the projectile from such a pistol was capable of totally penetrating a quarter-inch of plywood, and, thus, very likely would have resulted in a life-threatening injury to the clerk had defendant fired the weapon. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24, 1994 N.C. App. LEXIS 1079 (1994).

Stun Gun. —

Given the serious nature of the injury suffered by the victim, the tearing of the victim’s rotator cuff requiring two surgeries, physical therapy, and resulting in limited motion, the question of whether the stun gun was a dangerous weapon that threatened or endangered the victim’s life was properly placed before the jury and the trial court did not err in denying defendant’s motion to dismiss. Due to the actual effect of the stun gun, a permissive inference existed sufficient to support a jury determination that the stun gun was a dangerous weapon. State v. Rivera, 216 N.C. App. 566, 716 S.E.2d 859, 2011 N.C. App. LEXIS 2279 (2011).

Taser. —

Denying defendant’s motion to dismiss was not error where defendant incapacitated the victim with a taser while he was being beaten, including on his head, to ensure he could not defend himself, and thus, the jury could have concluded the taser was used as a deadly weapon under G.S. 14-87(a). State v. Chavis, 2021-NCCOA-349, 278 N.C. App. 482, 863 S.E.2d 225, 2021- NCCOA-349, 2021 N.C. App. LEXIS 360 (2021).

Use of Vehicle as Weapon. —

Evidence was sufficient that defendant’s accomplice had a dangerous weapon for purposes of G.S. 14-87(a) in her possession at the time she obtained the property as: (1) the accomplice drove an SUV owned by defendant towards a store manager in an attempt to “run the lady over”; (2) a witness saw defendant shove the manager to the ground, and the SUV swerve toward the manager as she was coming back to pick up defendant; (3) the witness thought the SUV was going to hit the manager; and (4) the accomplice drove defendant’s SUV in such a manner as to endanger the life of the manager. State v. Hill, 182 N.C. App. 88, 641 S.E.2d 380, 2007 N.C. App. LEXIS 495 (2007).

Knife Not Always Dangerous Per Se. —

A knife is not always a dangerous weapon per se. The circumstances of the case, rather than the physical description of the knife itself, ultimately determine this issue. State v. Smallwood, 78 N.C. App. 365, 337 S.E.2d 143, 1985 N.C. App. LEXIS 4287 (1985).

But Is When Serious Bodily Injury or Death Results. —

Where the victim has suffered serious bodily injury or death, the courts have consistently held that a knife is a dangerous or deadly weapon per se, absent production or detailed description. State v. Smallwood, 78 N.C. App. 365, 337 S.E.2d 143, 1985 N.C. App. LEXIS 4287 (1985).

When Character of Knife Is a Jury Question. —

In cases where the knife has not been produced or described in detail, and the victim has not suffered injury or death, the question of whether a knife is a dangerous weapon is generally for the jury. State v. Smallwood, 78 N.C. App. 365, 337 S.E.2d 143, 1985 N.C. App. LEXIS 4287 (1985).

Where, in view of the circumstances under which knife (which was never produced) was used in robbery, there was some evidence of the nonexistence of the element of danger to life, the court erred in defining the knife as a dangerous weapon and in refusing to submit common-law robbery to the jury. State v. Smallwood, 78 N.C. App. 365, 337 S.E.2d 143, 1985 N.C. App. LEXIS 4287 (1985).

Pocketknife. —

A pocketknife, considering its use or threatened use by defendant, was a dangerous weapon. State v. Norris, 264 N.C. 470 , 141 S.E.2d 869, 1965 N.C. LEXIS 1220 (1965).

The evidence fully supported trial judge’s instruction that pocketknife used to threaten victim was a dangerous or deadly weapon likely to produce death or great bodily injury, where there was evidence that the blade was three to four inches long and was held at various times to the victim’s throat, side and stomach, and defendant threatened to cut off the victim’s clothing with the knife and to cut her throat from “ear to ear” if she did not comply with his demands. State v. Mason, 317 N.C. 283 , 345 S.E.2d 195, 1986 N.C. LEXIS 2775 (1986).

In a prosecution for robbery with a dangerous weapon, the evidence was sufficient to allow a jury to find that defendant used a dangerous weapon when he stole videos from the victim, as he used a pocketknife with a two to three-inch blade to threaten the victim’s life, after the victim chased him. State v. Bellamy, 159 N.C. App. 143, 582 S.E.2d 663, 2003 N.C. App. LEXIS 1434 , cert. denied, 357 N.C. 579 , 589 S.E.2d 130, 2003 N.C. LEXIS 1306 (2003).

Box Cutter. —

Trial court did not err by instructing that box cutter with an exposed, sharply pointed razor blade was dangerous per se. State v. Wiggins, 78 N.C. App. 405, 337 S.E.2d 198, 1985 N.C. App. LEXIS 4309 (1985).

Evidence that two defendants entered a video store, pushed a 65-year-old clerk to the floor and placed a box cutter to her throat, and took $380 was sufficient to sustain defendants’ convictions for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. State v. Distance, 163 N.C. App. 711, 594 S.E.2d 221, 2004 N.C. App. LEXIS 576 (2004).

Butcher Knife. —

Evidence was sufficient to support the verdict of guilty of armed robbery; the record was replete with evidence that defendant had in his possession a 10-inch butcher knife and while it is obvious that a knife is not a “firearm,” it is a “dangerous weapon” as described by this section. State v. Stevens, 94 N.C. App. 194, 379 S.E.2d 863, 1989 N.C. App. LEXIS 451 (1989).

Glass Bottle. —

Where the evidence showed that the victim was struck in the back of the head with a glass bottle, causing him to fall to the ground, the evidence was sufficient to support a finding that the bottle was a dangerous weapon. State v. Moses, 154 N.C. App. 332, 572 S.E.2d 223, 2002 N.C. App. LEXIS 1452 (2002).

Broken Bottle. —

Where defendant held a broken bottleneck to victim’s face and lip and threatened to cut her badly, the defendant’s use of the broken bottleneck constituted a dangerous weapon. State v. Harris, 115 N.C. App. 560, 445 S.E.2d 626, 1994 N.C. App. LEXIS 714 (1994).

Hammer. —

Evidence did not compel a finding that hammer brandished by defendant was a dangerous weapon, and therefore, the trial court erred in refusing to instruct the jury on the lesser included offense of common law robbery. State v. Jackson, 85 N.C. App. 531, 355 S.E.2d 224, 1987 N.C. App. LEXIS 2637 (1987).

Gasoline. —

Where defendant’s use of gasoline, by throwing it in victim’s face, amounted to the use of a dangerous weapon, conviction for attempted robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon was upheld. State v. Cockerham, 129 N.C. App. 831, 497 S.E.2d 831 (1998).

Lawn Chair. —

Evidence was sufficient to establish that a lawn chair was used by defendant as a dangerous weapon during a robbery where the owner of chair testified that the morning after the assault, there was blood on the chair and the chair was bent, and that the chair was not bent or bloody before the assault. State v. Mills, 221 N.C. App. 409, 726 S.E.2d 926, 2012 N.C. App. LEXIS 771 (2012).

Fists, Hands, and Feet. —

Trial court erred by denying defendant’s motion to dismiss the charge of robbery with a dangerous weapon because the State failed to demonstrate that he either possessed or used a dangerous weapon, implement, or means during the attack; defendant’s fists, hands, and feet could not be considered dangerous weapons for purposes of G.S. 14-87 . State v. Duff, 171 N.C. App. 662, 615 S.E.2d 373, 2005 N.C. App. LEXIS 1367 (2005).

Although G.S. 14-87 refers to the possession, use, or threatened use of “means” during the robbery, the North Carolina Court of Appeals is not convinced that “means” was included in the statute in order to reach the situation where a robbery was perpetrated by the use of hands, fists, or feet; it is a recognized principle of statutory construction that when particular or specific words or acts, the subject of a statute, are followed by general words, the latter must as a rule be confined to acts and things of the same kind. State v. Duff, 171 N.C. App. 662, 615 S.E.2d 373, 2005 N.C. App. LEXIS 1367 (2005).

Despite prior holdings of the North Carolina Court of Appeals that, under certain circumstances, a defendant’s hands, fists, and feet can be considered deadly weapons for the purposes of an assault conviction, the court has never held that hands, fists, and feet can be considered dangerous weapons for the purposes of G.S. 14-87 . State v. Duff, 171 N.C. App. 662, 615 S.E.2d 373, 2005 N.C. App. LEXIS 1367 (2005).

For purposes of the robbery with a dangerous weapon statute, G.S. 14-87 , a defendant’s hands and feet may not be considered dangerous weapons. State v. Hinton, 361 N.C. 207 , 639 S.E.2d 437, 2007 N.C. LEXIS 33 (2007).

Conflicting Evidence as to Whether Gun Was Real. —

Defendant’s motion to dismiss a conspiracy to commit robbery with a dangerous weapon charge was properly denied as there was conflicting evidence as to whether a gun given to a person who committed a robbery (the actor) was real or not and there was sufficient evidence that the gun was an operable weapon where: (1) defendant and two other men told the actor to rob a store in exchange for drugs, which she agreed to do, (2) the men provided the actor with a gun and she committed the robbery, (3) the actor spoke primarily with defendant regarding the robbery, (4) the actor stated that one of the men told her that the gun was fake, but that she was uncertain whether it was fake, and (5) the actor stated that defendant and the others had a real gun and a fake gun and that she believed she had been given the fake one. State v. Carter, 177 N.C. App. 539, 629 S.E.2d 332, 2006 N.C. App. LEXIS 1078 , aff'd, 361 N.C. 108 , 637 S.E.2d 537, 2006 N.C. LEXIS 1286 (2006).

Motion to Dismiss Denied. —

Trial court did not err by denying defendant’s motion to dismiss the charge of robbery with a dangerous weapon where the evidence did not conclusively demonstrate that the instruments used during the robbery could not have been a firearm or other dangerous weapon, as there was no evidence that conclusively linked either the BB pistol or the pellet gun to the robbery, the victim testified that all three of the robbers were armed with handguns, and defendant and his co-conspirators were not carrying any weapons when they were apprehended by police. State v. Holt, 241 N.C. App. 577, 773 S.E.2d 542, 2015 N.C. App. LEXIS 509 (2015).

Motion to Dismiss Denied. —

Trial court did not err by denying defendant’s motion to dismiss the charge of robbery with a dangerous weapon where the evidence did not conclusively demonstrate that the instruments used during the robbery could not have been a firearm or other dangerous weapon, as there was no evidence that conclusively linked either the BB pistol or the pellet gun to the robbery, the victim testified that all three of the robbers were armed with handguns, and defendant and his co-conspirators were not carrying any weapons when they were apprehended by police. State v. Holt, 241 N.C. App. 577, 773 S.E.2d 542, 2015 N.C. App. LEXIS 509 (2015).

Sufficient Evidence. —

Trial court properly submitted the charge of robbery with a dangerous weapon to the jury. Sufficient evidence showed defendant not only possessed a knife while committing a theft, he also removed it from his pocket and wielded it with dire threats when the victim attempted to call the police. State v. Whisenant, 249 N.C. App. 456, 791 S.E.2d 122, 2016 N.C. App. LEXIS 917 (2016).

VI.Taking and Intent

Taking or Attempt to Take Required. —

The offense requires the taking, or the attempt to take, in robbery with firearms. State v. Parker, 262 N.C. 679 , 138 S.E.2d 496, 1964 N.C. LEXIS 727 (1964).

There must be an actual taking of property for there to be the crime of common-law robbery, whereas under this section the offense is complete if there is an attempt to take personal property by use of firearms or other dangerous weapon. State v. Rogers, 273 N.C. 208 , 159 S.E.2d 525, 1968 N.C. LEXIS 580 (1968); State v. Lock, 284 N.C. 182 , 200 S.E.2d 49, 1973 N.C. LEXIS 816 (1973); State v. Black, 286 N.C. 191 , 209 S.E.2d 458, 1974 N.C. LEXIS 1194 (1974).

It is not incumbent upon the State to prove that defendants actually took money. In a prosecution for the offense of armed robbery the offense is complete if there is an attempt to take personal property by use of firearms. State v. Jenkins, 8 N.C. App. 532, 174 S.E.2d 690, 1970 N.C. App. LEXIS 1602 (1970).

In order to commit robbery, property must be taken, which is larceny; thus the taking or attempted taking of property is an essential element of robbery. State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969).

The taking and carrying away is an essential element of the crime of robbery. State v. Bobbitt, 29 N.C. App. 155, 223 S.E.2d 398, 1976 N.C. App. LEXIS 2400 (1976).

Taking Must Be with Felonious Intent. —

The taking must be done animo furandi, with a felonious intent to appropriate the goods taken to some use or purpose of the taker. State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966); State v. Webb, 27 N.C. App. 391, 219 S.E.2d 268, 1975 N.C. App. LEXIS 1860 (1975).

In robbery, as in larceny, the taking of the property must be with the felonious intent permanently to deprive the owner of his property. State v. Jones, 57 N.C. App. 460, 291 S.E.2d 869, 1982 N.C. App. LEXIS 2676 (1982).

A taking with “felonious intent” is an essential element of the offense of armed robbery, of attempt to commit armed robbery, and of common-law robbery, and it is prejudicial error for the court to charge that defendant may be convicted of such offense even though the taking was without felonious intent. State v. Spratt, 265 N.C. 524 , 144 S.E.2d 569, 1965 N.C. LEXIS 1032 (1965).

A taking of personal property with felonious intent is an essential element of the offense of armed robbery, of attempt to commit armed robbery, and of common-law robbery. The court must so instruct the jury in every robbery case, and must in some sufficient form explain and define the term “felonious intent.” The extent of the definition required depends upon the evidence in the particular case. State v. Mundy, 265 N.C. 528 , 144 S.E.2d 572, 1965 N.C. LEXIS 1033 (1965).

In robbery, as in larceny, the taking of the property must be with the felonious intent permanently to deprive the owner of his property. Thus, if one disarms another in self-defense with no intent to steal his weapon, he is not guilty of robbery. If he takes another’s property for the taker’s immediate and temporary use with no intent permanently to deprive the owner of his property, he is not guilty of larceny. State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966).

“Felonious taking” is an essential element of the crime of armed robbery, and it means “a taking with the felonious intent on the part of the taker to deprive the owner of his property permanently and to convert it to the use of the taker.” State v. Harmon, 21 N.C. App. 508, 204 S.E.2d 883, 1974 N.C. App. LEXIS 1853 , cert. denied, 285 N.C. 593 , 205 S.E.2d 724, 1974 N.C. LEXIS 1040 (1974), cert. denied, 285 N.C. 593 , 206 S.E.2d 864 (1974); State v. Brown, 300 N.C. 41 , 265 S.E.2d 191, 1980 N.C. LEXIS 1040 (1980).

Felonious intent is an essential element of the offense of armed robbery and of the attempt to commit armed robbery; felonious intent means the intent to permanently deprive the owner of his property. State v. Wheeler, 122 N.C. App. 653, 471 S.E.2d 636, 1996 N.C. App. LEXIS 556 (1996).

Although the defendant claimed provocation, according to the defendant’s own statement, when the victim declined to make a loan to the defendant, the defendant struck the victim several times on the head with a sledgehammer, reached into the victim’s back pocket after the victim fell, removed the victim’s wallet, and then left the scene to clean up; therefore, the taking of the wallet occurred in an unbroken transaction. State v. Barden, 356 N.C. 316 , 572 S.E.2d 108, 2002 N.C. LEXIS 1115 (2002), cert. denied, 538 U.S. 1040, 123 S. Ct. 2087, 155 L. Ed. 2d 1074, 2003 U.S. LEXIS 3818 (2003).

Taking Personal Property from Victim’s Person or Presence. —

Evidence established that defendant took personal property from the victim’s person or presence, for purposes of defendant’s robbery with a dangerous weapon conviction, given that the victim testified that while he was laying on the ground as ordered, his money and his cell phone were taken; the motion to dismiss was properly denied. State v. McLean, 251 N.C. App. 850, 796 S.E.2d 804, 2017 N.C. App. LEXIS 47 (2017).

Taking from Dead Victim. —

When the death and the taking are so connected as to form a continuous chain of events, a taking from the body of a dead victim is a taking “from the person.” State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Fact that the victim is already dead when his possessions are taken is not an impediment in this jurisdiction to the defendant’s conviction for armed robbery. All that is required is that the elements of armed robbery occur under circumstances and in a time frame that can be perceived as a single transaction. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

Neither the commission of armed robbery, as defined in subsection (a), nor the commission of felony murder based on armed robbery, depends upon whether the intention to commit the taking of the victim’s property was formed before or after the killing. State v. Hartman, 344 N.C. 445 , 476 S.E.2d 328, 1996 N.C. LEXIS 502 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1562, 137 L. Ed. 2d 708, 1997 U.S. LEXIS 2745 (1997).

Person or persons in attendance. —

Store clerk saw the defendant in her store in a “mask” and with a gun and fled the store; even though the defendant took the money after the store clerk fled, the robbery occurred in the store clerk’s “presence” under G.S. 14-87 because the defendant made his purposes known to her. State v. Tuck, 173 N.C. App. 61, 618 S.E.2d 265, 2005 N.C. App. LEXIS 1930 (2005).

Defendant Guilty Although He Did Not Keep Victim’s Money After Stabbing Him. —

Although defendant did not keep any of the victim’s money, the crime of armed robbery was complete as the defendant stood over the man he had stabbed and made the decision whether to keep the small sum of money that he had taken from his victim or to discard it before fleeing. State v. King, 299 N.C. 707 , 264 S.E.2d 40, 1980 N.C. LEXIS 981 (1980).

Instruction as to “Felonious Intent” Depends on Facts of Case. —

The comprehensiveness and specificity of the definition and explanation of “felonious intent” required in a charge depends on the facts in the particular case. State v. Brown, 300 N.C. 41 , 265 S.E.2d 191, 1980 N.C. LEXIS 1040 (1980).

What Constitutes Intent. —

When, in order to serve a temporary purpose of his own, one takes property (1) with the specific intent wholly and permanently to deprive the owner of it, or (2) under circumstances which render it unlikely that the owner will ever recover his property and which disclose the taker’s total indifference to his rights, one takes it with the intent to steal (animus furandi). State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966); State v. Reaves, 9 N.C. App. 315, 176 S.E.2d 13, 1970 N.C. App. LEXIS 1347 (1970).

“Intent to Rob” Is a Sufficient Definition of “Felonious Intent.” —

The word “rob” was known to the common law and the expression “intent to rob” is a sufficient definition of “felonious intent” as applied to this section, in the absence of evidence raising an inference of a different intent or purpose. State v. Spratt, 265 N.C. 524 , 144 S.E.2d 569, 1965 N.C. LEXIS 1032 (1965); State v. Webb, 27 N.C. App. 391, 219 S.E.2d 268, 1975 N.C. App. LEXIS 1860 (1975); State v. Hunter, 290 N.C. 556 , 227 S.E.2d 535, 1976 N.C. LEXIS 1121 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539, 1977 U.S. LEXIS 673 (1977).

In some cases, as where the defense is an alibi or the evidence develops no direct issue or contention that the taking was under a bona fide claim of right or was without any intent to steal, “felonious intent” may be simply defined as an “intent to rob” or “intent to steal.” On the other hand, where the evidence raises a direct issue as to the intent and purpose of the taking, a more comprehensive definition is required. State v. Mundy, 265 N.C. 528 , 144 S.E.2d 572, 1965 N.C. LEXIS 1033 (1965).

Since “Rob” Imports an Intent to Steal. —

“Rob” or “robbery” has a well-defined meaning and imports an intent to steal. State v. Spratt, 265 N.C. 524 , 144 S.E.2d 569, 1965 N.C. LEXIS 1032 (1965).

Where evidence did not permit inference that defendant ever intended to return property forcibly taken but required the conclusion that defendant was totally indifferent as to whether the owner ever recovered the property, there was no justification for indulging the fiction that the taking was for a temporary purpose, without any animus furandi or lucri causa. State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966).

Intent to Permanently Deprive. —

Trial court did not err in denying the defendant’s motion to dismiss a robbery charge as the evidence that the defendant’s accomplice took the victim’s work vehicle and subsequently abandoned it near the crime scene was sufficient to show an intent to permanently deprive the victim of his property. State v. Kemmerlin, 356 N.C. 446 , 573 S.E.2d 870, 2002 N.C. LEXIS 1260 (2002).

Intent for Purposes of Felony Murder. —

Neither the commission of armed robbery, as defined by subsection (a) of this section, nor the commission of felony murder based on armed robbery depends upon whether the intention to commit the taking of the victim’s property was formed before or after the killing. State v. Handy, 331 N.C. 515 , 419 S.E.2d 545, 1992 N.C. LEXIS 423 (1992).

Taking Under Claim of Right or as Prank. —

A defendant is not guilty of robbery if he forcibly takes personal property from the actual possession of another under a bona fide claim of right or title to the property, or for the personal protection and safety of defendant and others, or as a frolic, prank or practical joke, or under color of official authority. State v. Spratt, 265 N.C. 524 , 144 S.E.2d 569, 1965 N.C. LEXIS 1032 (1965).

Taking Held Not Under Bona Fide Claim of Title. —

In a prosecution for armed robbery the defendant’s contention that he could not be found guilty of robbery and forcibly taking property from the actual possession of another where he had a bona fide claim of right or title to the property since such belief negates the requisite animus furandi or intent to steal was without merit where (1) the defendant denied taking any property from the prosecuting witness at all; (2) the defendant and others were “dealing” in marijuana, which is prohibited by Chapter 90 of the General Statutes; (3) the alleged claim or debt was an unliquidated amount of money; and (4) the defendant used a “sawed-off” shotgun to aid him in collection of the debt or claim to the property taken over the objections of the prosecuting witness. State v. Oxner, 37 N.C. App. 600, 246 S.E.2d 546, 1978 N.C. App. LEXIS 2810 (1978), aff'd, 297 N.C. 44 , 252 S.E.2d 705, 1979 N.C. LEXIS 1106 (1979).

Taking for Short Period of Time Sufficient. —

It was not error to deny defendant’s motion to dismiss a charge of robbery with a firearm on the theory that there was a variance between the theory in the jury instructions and the evidence because (1) the evidence showed a robber reached into the victim’s pocket, took the victim’s cell phone, and threw the phone away, (2) the fact that the “taking” was for a relatively short period of time was insignificant, (3) defendant could show no prejudice from an indictment alleging an actual taking rather than an attempt, since the punishment was the same for both crimes, and (4) defense counsel’s objection to the State’s request for an instruction on attempted robbery constituted invited error. State v. Mason, 222 N.C. App. 223, 730 S.E.2d 795, 2012 N.C. App. LEXIS 938 (2012).

Time of Formulating Intent. —

When the circumstances of an alleged armed robbery reveal that defendant intended to permanently deprive the owner of his property and the taking was effectuated by the use of a dangerous weapon, it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the theft and the use or threat of force can be perceived by the jury as constituting a single transaction. State v. Fields, 315 N.C. 191 , 337 S.E.2d 518, 1985 N.C. LEXIS 2004 (1985).

When the circumstances of armed robbery reveal an intent to permanently deprive the owner of his property and a taking effectuated by the use of a dangerous weapon, it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the theft and the use of force can be perceived by the jury as constituting a single transaction. State v. Rasor, 319 N.C. 577 , 356 S.E.2d 328, 1987 N.C. LEXIS 2091 (1987).

There was sufficient evidence that money was taken by the defendant where victim testified that when she went to bed she had a ten dollar bill in a brown envelope with her name on it and that the envelope was inside her bra that was hanging on the chair in her bedroom, the victim testified she knew the defendant had gotten the ten dollars ($10.00) because she heard him “a ’ rambling around in there”, and the bra and the brown envelope with the victim’s name on it were found in the culvert near defendant’s trailer. State v. Styles, 93 N.C. App. 596, 379 S.E.2d 255, 1989 N.C. App. LEXIS 396 (1989).

Sufficient evidence was presented that capital murder defendant took property from the victim so as to support his conviction for armed robbery, where the defendant told a friend that he had robbed and killed the victim, the defendant suddenly had a large sum of money, and the victim, who normally carried a large sum of money, had only $9.00 when his body was discovered. State v. Call, 349 N.C. 382 , 508 S.E.2d 496, 1998 N.C. LEXIS 848 (1998).

Evidence of Intent. —

Where the State’s evidence showed that defendant struck victim on the head with a stick while he was attempting to leave skating rink with the night’s receipts, defendant entered the skating rink and threatened victims and three hundred dollars was missing from a desk in the apartment after the defendant fled was sufficient to give rise to a reasonable inference that defendant intended to deprive another of personal property. State v. Brandon, 120 N.C. App. 815, 463 S.E.2d 798, 1995 N.C. App. LEXIS 940 (1995).

VII.Lesser Offenses

Included Offenses — Common-Law Robbery, Assault, Larceny from Person, and Simple Larceny. —

An indictment for robbery with firearms will support a conviction of the lesser offenses of common-law robbery, assault, larceny from the person, or simple larceny, if there is evidence of guilt of such lesser offenses. State v. Bell, 228 N.C. 659 , 46 S.E.2d 834, 1948 N.C. LEXIS 299 (1948); State v. Hare, 243 N.C. 262 , 90 S.E.2d 550, 1955 N.C. LEXIS 594 (1955); State v. Wenrich, 251 N.C. 460 , 111 S.E.2d 582, 1959 N.C. LEXIS 591 (1959); State v. Swaney, 277 N.C. 602 , 178 S.E.2d 399, 1971 N.C. LEXIS 1056 , cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428, 1971 U.S. LEXIS 1801 (1971).

In a prosecution for robbery with firearms, an accused may be acquitted of the major charge and convicted of an included or lesser offense, such as common-law robbery, or assault, or larceny from the person, or simple larceny, if a verdict for the included or lesser offense is supported by allegations of the indictment and by evidence on the trial. State v. Parker, 262 N.C. 679 , 138 S.E.2d 496, 1964 N.C. LEXIS 727 (1964); State v. Rogers, 273 N.C. 208 , 159 S.E.2d 525, 1968 N.C. LEXIS 580 (1968); State v. Conrad, 275 N.C. 342 , 168 S.E.2d 39, 1969 N.C. LEXIS 404 (1969); State v. Black, 286 N.C. 191 , 209 S.E.2d 458, 1974 N.C. LEXIS 1194 (1974); State v. Fletcher, 27 N.C. App. 672, 220 S.E.2d 101, 1975 N.C. App. LEXIS 1942 (1975).

An indictment for robbery with firearms will support a conviction of a lesser offense such as common-law robbery, assault with a deadly weapon, larceny from the person, simple larceny or simple assault, if a verdict for the included or lesser offense is supported by the evidence on the trial. State v. Faulkner, 5 N.C. App. 113, 168 S.E.2d 9, 1969 N.C. App. LEXIS 1290 (1969); State v. Allen, 47 N.C. App. 482, 267 S.E.2d 514, 1980 N.C. App. LEXIS 3131 (1980).

An indictment under this section includes common-law robbery. State v. Rowland, 263 N.C. 353 , 139 S.E.2d 661, 1965 N.C. LEXIS 1285 (1965); State v. Jackson, 6 N.C. App. 406, 170 S.E.2d 137, 1969 N.C. App. LEXIS 1195 (1969); State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809, 1971 N.C. LEXIS 941 (1971); State v. Tarrant, 70 N.C. App. 449, 320 S.E.2d 291, 1984 N.C. App. LEXIS 3688 (1984); State v. Owens, 73 N.C. App. 631, 327 S.E.2d 42, 1985 N.C. App. LEXIS 3337 (1985).

In a prosecution for robbery with a dangerous weapon, the accused may be acquitted of the crime charged and convicted of a lesser offense included in the offense charged, such as common-law robbery, if there is evidence from which the commission of such lesser offense can be found. State v. Black, 21 N.C. App. 640, 205 S.E.2d 154, 1974 N.C. App. LEXIS 1891 , aff'd, 286 N.C. 191 , 209 S.E.2d 458, 1974 N.C. LEXIS 1194 (1974).

Common-law robbery is distinguished from armed robbery by the absence of the element of the use or threatened use of a firearm or other dangerous weapon, and is accordingly a lesser included offense of armed robbery. State v. Smallwood, 78 N.C. App. 365, 337 S.E.2d 143, 1985 N.C. App. LEXIS 4287 (1985).

Same — Larceny. —

Larceny is a lesser included offense of armed robbery. State v. White, 322 N.C. 506 , 369 S.E.2d 813, 1988 N.C. LEXIS 472 (1988) (overruling) State v. Hurst, 320 N.C. 589 , 359 S.E.2d 776, 1987 N.C. LEXIS 2356 (1987).

Common-law robbery is a lesser included offense of armed robbery. State v. Harris, 91 N.C. App. 526, 372 S.E.2d 336, 1988 N.C. App. LEXIS 819 (1988).

Larceny is a lesser included offense of robbery with a dangerous weapon; and, armed robbery is an aggravated form of larceny. State v. Cummings, 346 N.C. 291 , 488 S.E.2d 550, 1997 N.C. LEXIS 480 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873, 1998 U.S. LEXIS 713 (1998).

Defendant’s first-degree burglary conviction was not improper because, although the jury instructions, which stated that the State had to prove, inter alia, that at the time of the breaking and entering, defendant intended to commit robbery with a firearm or attempted to commit robbery with a firearm, were at variance with the indictment, which alleged that defendant committed the offense by breaking and entering with the intent to commit felony larceny, the jury instructions actually benefitted defendant by adding an additional element for the State to prove, and thus there was no prejudicial error; any error in the jury charge was not prejudicial because larceny was a lesser-included offense of robbery with a dangerous weapon. State v. Farrar, 361 N.C. 675 , 651 S.E.2d 865, 2007 N.C. LEXIS 1097 (2007).

Same — Misdemeanor Larceny. —

In prosecution for armed robbery, where all of the essential elements of larceny would be proven by proof of the allegations in the indictment, where defendant’s own evidence regarding his acquisition of where automobile in question would have supported a conviction of larceny, and where although the indictment charged that the value of the stolen property was approximately $1,490, the State introduced no evidence of value, the court’s refusal to instruct the jury on misdemeanor larceny was prejudicial error. State v. White, 85 N.C. App. 531, 354 S.E.2d 324 (1987).

Same — Accessory Before the Fact. —

The crime of accessory before the fact to robbery is included in the indictment for robbery. State v. Wiggins, 21 N.C. App. 441, 204 S.E.2d 692, 1974 N.C. App. LEXIS 1830 (1974).

Same — Highway robbery is a lesser offense embraced in the charge of robbery with firearms or other dangerous weapon. State v. Stewart, 255 N.C. 571 , 122 S.E.2d 355, 1961 N.C. LEXIS 642 (1961).

Same — Assault on the Person. —

The crime of robbery ex vi termini includes an assault on the person. State v. Powell, 6 N.C. App. 8, 169 S.E.2d 210, 1969 N.C. App. LEXIS 1130 (1969).

Same — Assault on the Person with Deadly Weapon. —

The crime of armed robbery defined in this section includes an assault on the person with a deadly weapon. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971); State v. Harris, 27 N.C. App. 520, 219 S.E.2d 538, 1975 N.C. App. LEXIS 1890 (1975); State v. Davis, 31 N.C. App. 590, 230 S.E.2d 203, 1976 N.C. App. LEXIS 2069 (1976); State v. Mullen, 47 N.C. App. 667, 267 S.E.2d 564, 1980 N.C. App. LEXIS 3171 , cert. denied, 301 N.C. 103 , 273 S.E.2d 308, 1980 N.C. LEXIS 1326 (1980).

Assault with a deadly weapon is a lesser included offense of robbery with firearms, and the jury may acquit as to the greater charge and return a verdict as to the lesser if the evidence warrants such a finding. State v. Brown, 300 N.C. 41 , 265 S.E.2d 191, 1980 N.C. LEXIS 1040 (1980).

The crime of armed robbery includes an assault on a person with a deadly weapon; however, where the assault charged contains a necessary ingredient which is not an essential ingredient of armed robbery, the fact that the assault is committed during the perpetration of the armed robbery does not deprive the assault of its character as a complete and separate offense. State v. Teel, 24 N.C. App. 385, 210 S.E.2d 517, 1975 N.C. App. LEXIS 2387 (1975).

Offenses Not Included — Accessory After the Fact. —

Armed robbery differs in fact and in law from accessory after the fact under G.S. 14-7 . State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

Where the bill of indictment charges armed robbery, both a waiver and information are necessary, under G.S. 15-140.1 (now G.S. 15A-642 ), to vest the court with jurisdiction to try the defendant, or to entertain his plea, on a charge of accessory after the fact of armed robbery, because the offense of accessory after the fact is not a lesser included offense of the principal crime. State v. Brown, 21 N.C. App. 87, 202 S.E.2d 798, 1974 N.C. App. LEXIS 1720 (1974).

A directed verdict of not guilty of armed robbery foreclosed the State from subsequent prosecutions of defendant for armed robbery or for any lesser included offenses of armed robbery. But accessory after the fact of armed robbery is not a lesser included offense of armed robbery. Therefore, general double jeopardy principles would not bar the trial of defendant on charges of accessory after the fact to armed robbery. State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, 1978 N.C. App. LEXIS 2747 (1978), cert. denied, 295 N.C. 649 , 248 S.E.2d 253, 1978 N.C. LEXIS 1103 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487, 1979 U.S. LEXIS 974 (1979).

Same — Assault Under G.S. 14-32(a). —

The crime of felonious assault defined in G.S. 14-32(a) is an assault with a deadly weapon which is made with intent to kill and which inflicts serious injury. These additional elements of the crime of felonious assault are not elements of the crime of armed robbery defined in this section. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971); State v. Harris, 27 N.C. App. 520, 219 S.E.2d 538, 1975 N.C. App. LEXIS 1890 (1975); State v. Edwards, 49 N.C. App. 547, 272 S.E.2d 384, 1980 N.C. App. LEXIS 3445 (1980).

Assault with a deadly weapon with intent to kill inflicting serious injury cannot be considered a lesser included offense of armed robbery. The two offenses are separate and complete and an acquittal on the assault charge would not bar a conviction on the armed robbery charge. State v. Wheeler, 34 N.C. App. 243, 237 S.E.2d 874, 1977 N.C. App. LEXIS 1649 (1977), cert. denied, 294 N.C. 187 , 241 S.E.2d 522, 1978 N.C. LEXIS 1220 (1978).

Same — Assault Under G.S. 14-32(b). —

An assault with a deadly weapon inflicting serious injury, defined by G.S. 14-32(b), is not a lesser included offense of armed robbery because the infliction of serious injury is not an essential ingredient of armed robbery. State v. Stepney, 280 N.C. 306 , 185 S.E.2d 844, 1972 N.C. LEXIS 1250 (1972); State v. Teel, 24 N.C. App. 385, 210 S.E.2d 517, 1975 N.C. App. LEXIS 2387 (1975); State v. Edwards, 49 N.C. App. 547, 272 S.E.2d 384, 1980 N.C. App. LEXIS 3445 (1980).

Where defendant was charged with armed robbery but found guilty of assault with a deadly weapon inflicting serious bodily injury, the trial court should have granted his motion in arrest of judgment, since assault with a deadly weapon inflicting serious injury is not a lesser included offense of armed robbery, but a separate offense. State v. Perry, 18 N.C. App. 141, 196 S.E.2d 369, 1973 N.C. App. LEXIS 1799 (1973).

Assault with a deadly weapon inflicting serious injury is not a lesser included offense of attempted common-law robbery. State v. Wilson, 26 N.C. App. 188, 215 S.E.2d 167, 1975 N.C. App. LEXIS 2002 (1975).

Assault with a deadly weapon is not a lesser included offense of attempted armed robbery. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550, 1988 N.C. App. LEXIS 177 (1988).

Fact that allegations in armed robbery indictment include charge of assault does not render the indictment invalid. State v. Swaney, 277 N.C. 602 , 178 S.E.2d 399, 1971 N.C. LEXIS 1056 , cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428, 1971 U.S. LEXIS 1801 (1971).

Conviction of armed robbery does not establish guilt of felonious assault. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971); State v. Alexander, 284 N.C. 87 , 199 S.E.2d 450, 1973 N.C. LEXIS 779 (1973), cert. denied, 415 U.S. 927, 94 S. Ct. 1434, 39 L. Ed. 2d 484, 1974 U.S. LEXIS 1292 (1974).

Armed robbery and felonious assault charges are separate and distinct offenses. State v. Wheeler, 21 N.C. App. 514, 204 S.E.2d 862, 1974 N.C. App. LEXIS 1855 (1974).

Fact that felonious assault is committed during perpetration of armed robbery does not deprive the felonious assault of its character as a complete and separate felony. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971).

Distinction between robbery and forcible trespass is that in the former there is, and in the latter is not, a felonious intention to take the goods, and appropriate them to the offender’s own use. State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966); State v. Spratt, 265 N.C. 524 , 144 S.E.2d 569, 1965 N.C. LEXIS 1032 (1965).

When Instructions as to Lesser Included Offenses Required. —

The court should not submit to the jury an included lesser crime where there is no testimony tending to show that such lesser offense was committed. But where there is evidence tending to show the commission of a lesser offense the court, of its own motion, should submit such offense to the jury for its determination. State v. Wenrich, 251 N.C. 460 , 111 S.E.2d 582, 1959 N.C. LEXIS 591 (1959).

In trial for murder and common-law robbery, absent affirmative evidence that defendant took victim’s belongings only as an afterthought, and that the violence committed against victim served no intimidating purpose, defendant was not entitled to an instruction on misdemeanor larceny. State v. Davis, 325 N.C. 603 , 386 S.E.2d 418 (1989).

It is true that in a prosecution for robbery with firearms, an accused may be acquitted of the major charge and convicted of an included or lesser offense, such as common-law robbery, or assault, or larceny from the person, or simple larceny, if a verdict for the included or lesser offense is supported by allegations of the indictment and by evidence on the trial. However, the trial court is not required to submit to the jury the question of a lesser offense, included in that charged in the indictment, where there is no evidence to support such a verdict. State v. Owens, 277 N.C. 697 , 178 S.E.2d 442, 1971 N.C. LEXIS 1066 (1971).

The necessity for instructing the jury as to an included crime of lesser degree than that charged, arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed, and the presence of such evidence is the determinative factor. Hence, there is no such necessity if the State’s evidence tends to show a completed robbery and there is no conflicting evidence relating to elements of the crime charged. Mere contention that the jury might accept the State’s evidence in part and might reject it in part will not suffice. State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809, 1971 N.C. LEXIS 941 (1971); State v. Allen, 47 N.C. App. 482, 267 S.E.2d 514, 1980 N.C. App. LEXIS 3131 (1980).

In an armed robbery prosecution, there is no necessity for the trial judge to instruct the jury as to an included crime of lesser degree where the State’s evidence tends to show a completed robbery and there is no conflicting evidence relating to the elements of the crime charged. State v. Reaves, 9 N.C. App. 315, 176 S.E.2d 13, 1970 N.C. App. LEXIS 1347 (1970).

The trial court is not required to charge the jury upon the question of a defendant’s guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant’s guilt of such lesser degrees. State v. Hailstock, 15 N.C. App. 556, 190 S.E.2d 376, 1972 N.C. App. LEXIS 1967 , cert. denied, 281 N.C. 760 , 191 S.E.2d 363, 1972 N.C. LEXIS 1201 (1972); State v. Black, 21 N.C. App. 640, 205 S.E.2d 154, 1974 N.C. App. LEXIS 1891 , aff'd, 286 N.C. 191 , 209 S.E.2d 458, 1974 N.C. LEXIS 1194 (1974).

It is not necessary to submit the lesser included offense to the jury if the evidence discloses no conflicting evidence relating to the essential elements of the greater crime. State v. Brown, 300 N.C. 41 , 265 S.E.2d 191, 1980 N.C. LEXIS 1040 (1980).

Common-law robbery is a lesser included offense of armed robbery, and it is error to refuse to submit common-law robbery to the jury where the evidence does not compel a finding that the weapon allegedly used is a dangerous weapon as a matter of law. State v. Jackson, 85 N.C. App. 531, 355 S.E.2d 224, 1987 N.C. App. LEXIS 2637 (1987).

Same — Common-Law Robbery. —

Common-law robbery is a lesser included offense of armed robbery. However, the necessity for instructing the jury as to a lesser included offense arises only when there is evidence to support such a verdict. State v. Wilson, 31 N.C. App. 323, 229 S.E.2d 314, 1976 N.C. App. LEXIS 1975 (1976).

If the State’s evidence shows an armed robbery as charged in the indictment and there is no conflicting evidence relating to the elements of the crime charged, an instruction on common-law robbery is not required. State v. Lee, 282 N.C. 566 , 193 S.E.2d 705, 1973 N.C. LEXIS 1109 (1973); State v. Martin, 29 N.C. App. 17, 222 S.E.2d 718, 1976 N.C. App. LEXIS 2366 , cert. denied, 290 N.C. 96 , 225 S.E.2d 325, 1976 N.C. LEXIS 1037 (1976); State v. Dollar, 292 N.C. 344 , 233 S.E.2d 521, 1977 N.C. LEXIS 1094 (1977); State v. Clemmons, 34 N.C. App. 101, 237 S.E.2d 298, 1977 N.C. App. LEXIS 1587 (1977); State v. Coats, 301 N.C. 216 , 270 S.E.2d 422, 1980 N.C. LEXIS 1156 (1980).

Where all of the evidence tended to show that an armed robbery was committed by the defendant, and others, acting in concert, and that the defendant aided and abetted in the use and threatened use of a firearm wielded by another, and there was no evidence tending to show the commission of common-law robbery, it would have been error for the trial court to charge on the unsupported lesser degree of the crime. State v. Curtis, 18 N.C. App. 116, 196 S.E.2d 278, 1973 N.C. App. LEXIS 1792 (1973).

The evidence did not support an instruction on common-law robbery, where there was no evidence in the record of a taking, an essential element of the crime of common-law robbery. State v. Duncan, 14 N.C. App. 113, 187 S.E.2d 353, 1972 N.C. App. LEXIS 2050 (1972).

Where the evidence for the State clearly shows an armed robbery and there is no evidence of a lesser offense, the trial court is not required to submit to the jury the lesser included offenses of common-law robbery and assault. State v. Swaney, 277 N.C. 602 , 178 S.E.2d 399, 1971 N.C. LEXIS 1056 , cert. denied, 402 U.S. 1006, 91 S. Ct. 2199, 29 L. Ed. 2d 428, 1971 U.S. LEXIS 1801 (1971).

In a prosecution for robbery with a dangerous weapon, defendant’s denial of his participation in the robbery and his denial that he saw a gun during the robbery did not constitute evidence sufficient to require the trial court to submit an issue of common-law robbery to the jury. State v. Coats, 46 N.C. App. 615, 265 S.E.2d 486, 1980 N.C. App. LEXIS 2870 , aff'd, 301 N.C. 216 , 270 S.E.2d 422, 1980 N.C. LEXIS 1156 (1980).

When the State offered evidence in an armed robbery case that the robbery was attempted or accomplished by the use or threatened use of what appeared to the victim to be a firearm or other dangerous weapon, evidence elicited on cross-examination that the witness or witnesses could not positively testify that the instrument used was in fact a firearm or dangerous weapon was not of sufficient probative value to warrant submission of the lesser included offense of common-law robbery. That portion of State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809 (1971), cert. denied, 409 U.S. 948, 93 S. Ct. 293, 34 L. Ed. 2d 218 (1972), which is inconsistent with this is no longer authoritative. State v. Thompson, 297 N.C. 285 , 254 S.E.2d 526, 1979 N.C. LEXIS 1242 (1979).

Trial court in an armed robbery case properly refused defendants’ request for an instruction on common-law robbery, where victim testified that all he observed during the incident before being rendered unconscious was the barrel of a gun held at his forehead, and there was no evidence in the record to contradict this testimony. State v. Porter, 303 N.C. 680 , 281 S.E.2d 377, 1981 N.C. LEXIS 1268 (1981).

Where the evidence showed that defendant perpetrated robbery with the threatened use of a dangerous weapon held a couple of inches from the victim’s side, and there was no conflicting evidence relating to the elements of the crime, the court did not err in failing to instruct on common law robbery. State v. Wiggins, 78 N.C. App. 405, 337 S.E.2d 198, 1985 N.C. App. LEXIS 4309 (1985).

Where all of the State’s uncontradicted evidence, if believed, tended to compel the conclusion that a glass vase, as wielded by the defendant, “endangered or threatened” the victim’s life, and hence, was a dangerous weapon, there was no evidence to support an instruction on the lesser included offense of common-law robbery. State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190, 1985 N.C. LEXIS 1557 (1985).

Where the uncontroverted evidence is positive and unequivocal as to each and every element of armed robbery, and there is no evidence supporting the defendant’s guilt of a lesser offense, the trial court does not err in failing to instruct the jury on the lesser included offense of common-law robbery. State v. Peacock, 313 N.C. 554 , 330 S.E.2d 190, 1985 N.C. LEXIS 1557 (1985).

In a prosecution for armed robbery, the trial court did not err in refusing to instruct the jury on attempted common-law robbery, where the defendant admitted on cross-examination that he intended to rob the store and that he intended to frighten the cashier with a shotgun, and he admitted also that he pointed the shotgun in the cashier’s direction. State v. Haddick, 76 N.C. App. 524, 333 S.E.2d 518, 1985 N.C. App. LEXIS 4240 (1985).

While common-law robbery is a lesser included offense of armed robbery, and an indictment for armed robbery will support a conviction of common-law robbery, trial judge is not required to instruct on common-law robbery when defendant is indicted for armed robbery if the uncontradicted evidence indicates that the robbery was perpetrated by the use or threatened use of what appeared to be a dangerous weapon. State v. Porter, 303 N.C. 680 , 281 S.E.2d 377, 1981 N.C. LEXIS 1268 (1981); State v. Tarrant, 70 N.C. App. 449, 320 S.E.2d 291, 1984 N.C. App. LEXIS 3688 (1984).

It is error to refuse to submit common-law robbery to the jury where the evidence does not compel a finding that the weapon allegedly used is a dangerous weapon as a matter of law. State v. Smallwood, 78 N.C. App. 365, 337 S.E.2d 143, 1985 N.C. App. LEXIS 4287 (1985).

Where the State’s evidence was to the effect that defendant’s companion held a knife to the victim’s throat in perpetrating a robbery, and that the victim received a cut on his neck, and that defendant and his companion attacked and beat their victim and took money from his person, but no knife was introduced in evidence or described by any witness, it was error for the court to fail to submit the question of defendant’s guilt of the lesser crime of common-law robbery. State v. Ross, 268 N.C. 282 , 150 S.E.2d 421, 1966 N.C. LEXIS 1181 (1966).

When there is evidence of defendant’s guilt of common-law robbery, it is error for the court to fail to submit the lesser offense to the jury. State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809, 1971 N.C. LEXIS 941 (1971).

In an armed robbery prosecution where there was no other evidence of a weapon, and the robbery victim was not sure whether defendant actually had a weapon, it was error for the trial judge to fail to charge on the lesser offense of common-law robbery. State v. Jackson, 27 N.C. App. 675, 219 S.E.2d 816, 1975 N.C. App. LEXIS 1944 (1975).

Where conflicting testimony raised an issue for the jury as to whether defendant had in his possession and used or threatened to use a firearm or other dangerous weapon to perpetrate the robbery, the trial judge, even without request for special instructions, should have submitted the lesser offense of common-law robbery to the jury under proper instructions. State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809, 1971 N.C. LEXIS 941 (1971).

Common-law robbery is a lesser included offense of armed robbery, and it is error to refuse to submit common-law robbery to the jury where the evidence does not compel a finding that the weapon allegedly used is a dangerous weapon as a matter of law. State v. Jackson, 85 N.C. App. 531, 355 S.E.2d 224, 1987 N.C. App. LEXIS 2637 (1987).

In defendant’s prosecution for robbery with a dangerous weapon under G.S. 14-87(a), defendant was not entitled to an instruction on the lesser-included offense of common-law robbery because evidence was presented that three robbers, including defendant, used a handgun when the robbers entered the victims’ hotel room and stole the victims’ money and cellular telephones, so the evidence tended to show that the robbers perpetrated the robbery with a firearm capable of endangering or threatening the lives of the victims. State v. Morgan, 183 N.C. App. 160, 645 S.E.2d 93, 2007 N.C. App. LEXIS 1050 (2007).

Trial court did not err in refusing to instruct the jury on the lesser-included offense of common-law robbery because (1) defendant did not offer any evidence supporting the contention that the gun was not functional; and (2) defendant did not produce any evidence that the gun he used was rendered inoperable even if a piece did fall off. State v. Williams, 201 N.C. App. 103, 685 S.E.2d 534, 2009 N.C. App. LEXIS 1856 (2009).

Trial court did not err by failing to instruct the jury on the lesser-included offense of common law robbery because defendant was either guilty of robbing the victim by the threatened use of the chef’s knife or he was not guilty at all. State v. Clevinger, 249 N.C. App. 383, 791 S.E.2d 248, 2016 N.C. App. LEXIS 920 (2016).

Same — Attempted Common-Law Robbery. —

The trial court in a prosecution for attempted armed robbery was not required to submit the lesser offense of attempted common-law robbery because of the failure of the State’s witnesses to testify that the sawed-off shotgun used by defendant was not a toy, where all of the evidence indicated that defendant used a sawed-off shotgun in the crime and there was no evidence that the shotgun was not a real and functioning deadly weapon. State v. Davis, 37 N.C. App. 173, 245 S.E.2d 583, 1978 N.C. App. LEXIS 2677 , cert. denied, 295 N.C. 650 , 248 S.E.2d 254, 1978 N.C. LEXIS 1104 (1978).

Where under the State’s evidence, a defendant would be guilty of attempted armed robbery, and under the defendant’s evidence, he would not be guilty of attempted armed robbery or attempted common-law robbery, the judge is not required to instruct the jury that it might return a verdict of guilty of attempted common-law robbery. State v. Owens, 277 N.C. 697 , 178 S.E.2d 442, 1971 N.C. LEXIS 1066 (1971).

Same — Felonious Larceny. —

In a prosecution for armed robbery the trial court erred in failing to instruct the jury on the lesser included offense of felonious larceny where defendant’s testimony, that he did not at any time draw a knife on the victim’s assistant manager, did not have a knife in his possession at any time while he was with the assistant manager, did not say anything at any time to threaten or force the assistant manager to give him money, but merely walked out with the money when the assistant manager turned his back to defendant, would have negated the element of violence or intimidation required to elevate the crime of felonious larceny to that of common-law robbery or armed robbery; moreover, the fact that defendant closed the door to the assistant manager’s office as he ran out and locked it from the outside, leaving the assistant manager confined inside was not precedent to nor concomitant or contemporaneous with the act of taking the money bag, and the act of closing and locking the door therefore could not be held to constitute the requisite violence or putting in fear to make the crime in question robbery as a matter of law. State v. Chapman, 49 N.C. App. 103, 270 S.E.2d 524, 1980 N.C. App. LEXIS 3353 (1980).

Same — Assault with Deadly Weapon and Simple Assault. —

Where there was no evidence in an armed robbery prosecution that any offense other than armed robbery or common-law robbery had been committed, the trial court did not err in failing to submit the issues of assault with a deadly weapon and simple assault. State v. Gurkin, 8 N.C. App. 304, 174 S.E.2d 20, 1970 N.C. App. LEXIS 1543 (1970).

In a prosecution for attempted armed robbery, the necessity for instructing the jury as to included crimes of assault with a deadly weapon and simple assault arises when and only when there is evidence from which the jury could find that such included crimes of lesser degree were committed. The presence of such evidence is the determinative factor. State v. Sanders, 29 N.C. App. 662, 225 S.E.2d 620, 1976 N.C. App. LEXIS 2623 (1976).

Although there was evidence of all the essential elements of the crime of robbery, defendant’s evidence asserting a claim of ownership of the stereo created a conflict in the evidence as to felonious intent. There certainly was ample evidence of the lesser included crime of an assault with a deadly weapon. Thus, defendant was entitled to a charge on the crime of assault with a deadly weapon in order to have the different views arising on the evidence presented to the jury upon proper instructions. State v. Brown, 300 N.C. 41 , 265 S.E.2d 191, 1980 N.C. LEXIS 1040 (1980).

When the State’s evidence tends to show armed robbery, there is no conflicting evidence relating to elements of the offense and the only offense committed, if any, was the one charged, the court is not required to instruct on the lesser included offense of assault with a deadly weapon. State v. Davis, 31 N.C. App. 590, 230 S.E.2d 203, 1976 N.C. App. LEXIS 2069 (1976).

Where the State’s evidence was positive and without conflict on all of the elements of the charge of robbery with a firearm, and there was no evidence to the contrary, instructions on the lesser included offenses of common-law robbery, assault with a deadly weapon and simple assault were not required. State v. Wheeler, 34 N.C. App. 243, 237 S.E.2d 874, 1977 N.C. App. LEXIS 1649 (1977), cert. denied, 294 N.C. 187 , 241 S.E.2d 522, 1978 N.C. LEXIS 1220 (1978).

Where all of the State’s evidence tended to show the armed robbery of another person and where all of defendant’s evidence tended to show that he committed no crime, the trial court was not required to charge on the lesser offense of assault with a deadly weapon. State v. Allison, 280 N.C. 175 , 184 S.E.2d 857, 1971 N.C. LEXIS 1114 (1971).

Even though the crime of attempted armed robbery as defined in this section includes the crime of assault with a deadly weapon, the absence of any evidence that the defendant committed such a crime of lesser degree made it unnecessary for the court to submit to the jury as one of its permissible verdicts the crime of assault with a deadly weapon. State v. Harris, 27 N.C. App. 520, 219 S.E.2d 538, 1975 N.C. App. LEXIS 1890 (1975).

The evidence tended to show that defendant was apprehended by the owner of a filling station after defendant had broken into the station, and that defendant by the use of a pistol disarmed such owner and took his rifle. Even conceding that defendant took the rifle “for a temporary use” and that he intended thereafter to abandon the rifle at the first opportunity, the evidence conclusively showed that defendant intended to deprive the owner permanently of the rifle or to leave the recovery of the rifle by the owner to mere chance, and therefore the evidence disclosed the animus furandi, and did not require the court to submit the question of defendant’s guilt of assault as a less degree of the offense of robbery with firearms. State v. Smith, 268 N.C. 167 , 150 S.E.2d 194, 1966 N.C. LEXIS 1155 (1966).

Where there was no evidence that defendant was guilty of either assault with a deadly weapon or simple assault, the trial judge was not required to charge on the lesser included offenses of this section. State v. Hewett, 87 N.C. App. 423, 361 S.E.2d 104, 1987 N.C. App. LEXIS 3167 (1987).

Refusal to charge on lesser included offenses held proper. State v. Harmon, 21 N.C. App. 508, 204 S.E.2d 883, 1974 N.C. App. LEXIS 1853 , cert. denied, 285 N.C. 593 , 205 S.E.2d 724, 1974 N.C. LEXIS 1040 (1974), cert. denied, 285 N.C. 593 , 206 S.E.2d 864 (1974).

Where the State introduced substantial evidence of defendant’s guilt of robbery with a firearm the trial court did not err by refusing to charge on the lesser included offense of larceny. State v. Cummings, 346 N.C. 291 , 488 S.E.2d 550, 1997 N.C. LEXIS 480 (1997), cert. denied, 522 U.S. 1092, 118 S. Ct. 886, 139 L. Ed. 2d 873, 1998 U.S. LEXIS 713 (1998).

Where there was no evidence presented to support an instruction on common law robbery as a lesser-included offense of armed robbery, the trial court did not err by not instructing the jury on common law robbery. State v. Gaither, 161 N.C. App. 96, 587 S.E.2d 505, 2003 N.C. App. LEXIS 1996 (2003).

Where the evidence showed defendants used guns to rob people, judge’s decision not to charge the jury on the lesser offense of common robbery was proper in defendants’ trial for robbery with a dangerous weapon. State v. Johnson, 164 N.C. App. 1, 595 S.E.2d 176, 2004 N.C. App. LEXIS 694 (2004).

Merger of Sentences. —

Trial court erred when it failed to arrest judgment on defendant’s armed robbery conviction under G.S. 14-87(a); when defendant was convicted of first-degree murder pursuant to the felony murder rule, and a verdict of guilty was returned on the underlying felony, the armed robbery conviction provided no basis for an additional sentence, hence it merged into the murder conviction. State v. Staten, 172 N.C. App. 673, 616 S.E.2d 650, 2005 N.C. App. LEXIS 1777 (2005), cert. denied, 547 U.S. 1081, 126 S. Ct. 1798, 164 L. Ed. 2d 537, 2006 U.S. LEXIS 3102 (2006).

Distinction Between Robbery and Use of Victim’s Gun. —

In an appeal as of right with regard to the imposition of a sentence of death against a defendant following a jury trial, which resulted in his conviction for the first-degree murder of a police officer while in the performance of his duties, the trial court did not err by denying his motion to dismiss the charge of robbery with a dangerous weapon since the evidence presented was sufficient for the jury to find that the defendant’s use of the victim’s gun was inseparable from the taking of it and the defendant’s efforts to flee, thus, it was a continuous transaction. State v. Maness, 363 N.C. 261 , 677 S.E.2d 796, 2009 N.C. LEXIS 621 (2009).

VIII.Indictment

Description of Property. —

An indictment for robbery must contain a description of the property sufficient, at least, to show that such property is the subject of robbery. State v. Rogers, 273 N.C. 208 , 159 S.E.2d 525, 1968 N.C. LEXIS 580 (1968).

An indictment was defective under this section where it did not describe any property sufficiently to show that it was the subject of robbery, and although the indictment stated a value, what property had that value did not appear. State v. Owens, 277 N.C. 697 , 178 S.E.2d 442, 1971 N.C. LEXIS 1066 (1971).

Same — Particular Identity or Value. —

It is not necessary to describe accurately or prove the particular identity or value of the property further than to show it was the property of the person assaulted or in his care, and had a value. State v. Mull, 224 N.C. 574 , 31 S.E.2d 764, 1944 N.C. LEXIS 434 (1944); State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969).

Attempted armed robbery indictment which alleged the attempted taking of an unspecified amount of cash from the presence of an individual with the use of a weapon was not insufficient for failing to specify the amount of cash or the true legal owner of the cash. State v. Burroughs, 147 N.C. App. 693, 556 S.E.2d 339, 2001 N.C. App. LEXIS 1240 (2001).

Property Should Be Described by Usual Name. —

Property alleged to have been taken should be described by the name usually applied to it when in the condition it was in when taken, and where possible to state the number or quantity, kind, quality, distinguishing features, etc., thereof. State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969).

Sufficiency of Allegation of Ownership. —

In an indictment for robbery the allegation of ownership of the property taken is sufficient when it negates the idea that the accused was taking his own property. State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982).

It is not necessary that ownership of the property be laid in any particular person in order to allege and prove the crime of armed robbery. State v. Rogers, 273 N.C. 208 , 159 S.E.2d 525, 1968 N.C. LEXIS 580 (1968); State v. McGilvery, 9 N.C. App. 15, 175 S.E.2d 328, 1970 N.C. App. LEXIS 1264 (1970); State v. Spillars, 280 N.C. 341 , 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972); State v. Johnson, 20 N.C. App. 53, 200 S.E.2d 395, 1973 N.C. App. LEXIS 1467 (1973).

It is not necessary that ownership of the property be laid in a particular person in order to allege and prove armed robbery. The gist of the offense of robbery is the taking by force or putting in fear. An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of robbery and negates the idea that the accused was taking his own property. State v. Jackson, 306 N.C. 642 , 295 S.E.2d 383, 1982 N.C. LEXIS 1542 (1982).

In an indictment for robbery the allegation of ownership of the property taken is sufficient when it negates the idea that the accused was taking his own property. State v. Ballard, 280 N.C. 479 , 186 S.E.2d 372, 1972 N.C. LEXIS 1267 (1972).

To allege and prove the crime of armed robbery, it is not necessary that ownership of the property be laid in any particular person, at least so long as the allegation and proof are sufficient to negate the idea of the accused’s taking his own property. State v. Fountain, 14 N.C. App. 82, 187 S.E.2d 493, 1972 N.C. App. LEXIS 2041 (1972).

An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of robbery and negates the idea that the accused was taking his own property. State v. Spillars, 280 N.C. 341 , 185 S.E.2d 881, 1972 N.C. LEXIS 1252 (1972).

Name of Person in Attendance. —

It is plain from this section that it is not necessary that the name of the person in attendance in the place of business be set out in the bill of indictment. It is only required that, upon trial, the State must prove that someone was in attendance. State v. Rankin, 55 N.C. App. 478, 286 S.E.2d 119, 1982 N.C. App. LEXIS 2219 (1982).

Indictment for Crime Against Person Must Name Victim. —

Indictment for attempted armed robbery was fatally defective in failing to name any victim because the indictment was for a crime against a person and thus, was required to name a victim. By failing to name a victim, the indictment for attempted armed robbery was fatally defective and the trial court had no jurisdiction to enter judgment. State v. Oldroyd, 271 N.C. App. 544, 843 S.E.2d 478, 2020 N.C. App. LEXIS 392 (2020), rev'd, 869 S.E.2d 193, 2022- NCSC-27, 2022 N.C. LEXIS 240 (N.C. 2022).

Charge of Aiding and Abetting Unnecessary. —

Person who aids or abets another in the commission of armed robbery is guilty under this section, and it is not necessary that the indictment charge him with aiding and abetting. State v. Ferree, 54 N.C. App. 183, 282 S.E.2d 587, 1981 N.C. App. LEXIS 2819 (1981).

Kind and value of property taken is not material so long as it is described by allegation and proof sufficient to show that it is the subject of robbery. State v. Fountain, 14 N.C. App. 82, 187 S.E.2d 493, 1972 N.C. App. LEXIS 2041 (1972).

It Must Appear That Article Taken Had Some Value. —

Although value need not be averred by a specific allegation, it must appear from the indictment that the article taken had some value. State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969).

The allegation in a bill of indictment that the property taken was “personal property of the value of . . .” was insufficient to charge the offense of robbery. State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969).

Where the gist of the offense as described in the indictment is the attempt to commit robbery by the use or threatened use of firearms, the force or intimidation occasioned by the use or threatened use of firearms is the main element of the offense. In such a case, it is not necessary or material to describe accurately or prove the particular identity or value of the property, provided the indictment shows that the property was that of the person assaulted or under his care, and that such property is the subject of robbery and that it had some value. State v. Owens, 277 N.C. 697 , 178 S.E.2d 442, 1971 N.C. LEXIS 1066 (1971).

Where the property involved is described in an indictment under this section as “U.S. currency,” it is the subject of robbery and some value can be inferred from the description of the property itself. State v. Owens, 277 N.C. 697 , 178 S.E.2d 442, 1971 N.C. LEXIS 1066 (1971).

It is not necessary in an armed robbery prosecution to allege or prove the particular value of the property taken, provided the indictment and proof show that the property was that of the person assaulted or under his care, and that such property is the subject of robbery and that it had some value. State v. Reaves, 15 N.C. App. 476, 190 S.E.2d 358, 1972 N.C. App. LEXIS 1945 , cert. denied, 282 N.C. 155 , 191 S.E.2d 604, 1972 N.C. LEXIS 919 (1972).

The bill of indictment upon which defendant is tried for attempted armed robbery is fatally defective when it fails to allege that defendant attempted to take any property or thing of value from anyone. State v. Teel, 24 N.C. App. 385, 210 S.E.2d 517, 1975 N.C. App. LEXIS 2387 (1975).

And That It May Be Subject of Larceny. —

The property taken must be such as is the subject of larceny to constitute the offense of robbery. State v. Rogers, 273 N.C. 208 , 159 S.E.2d 525, 1968 N.C. LEXIS 580 (1968).

An indictment for robbery must contain a description of the property sufficient, at least, to show that such property is the subject of robbery. To constitute the offense of robbery the property must be such as is the subject of larceny. State v. Council, 6 N.C. App. 397, 169 S.E.2d 921, 1969 N.C. App. LEXIS 1193 (1969); State v. Johnson, 20 N.C. App. 53, 200 S.E.2d 395, 1973 N.C. App. LEXIS 1467 (1973).

Money is recognized by law as property which may be the subject of larceny, and hence of robbery. State v. Owens, 277 N.C. 697 , 178 S.E.2d 442, 1971 N.C. LEXIS 1066 (1971).

Bill of indictment for armed robbery sufficiently charged felonious intent where it alleged that defendants, by the use and threatened use of firearms whereby the life of a motel night clerk was endangered, unlawfully, willfully and feloniously took money from the motel. State v. Frietch, 8 N.C. App. 331, 174 S.E.2d 149, 1970 N.C. App. LEXIS 1556 (1970).

Bill Need Not Allege That Defendant Intended Conversion of Property. —

A bill of indictment for armed robbery need not allege that defendants intended to convert the personal property stolen to their own use. State v. Frietch, 8 N.C. App. 331, 174 S.E.2d 149, 1970 N.C. App. LEXIS 1556 (1970).

Indictments Consolidated. —

An indictment charging defendants with rape and an indictment charging defendants with armed robbery could be consolidated for trial when it appeared that defendants stopped the car in which husband and wife were riding, forced them into the woods where each raped the wife while the other held a pistol on the husband, and that one of them committed robbery from the person of the husband while he was being held at the point of the pistol, since the crimes were so connected in time and place that the evidence on the trial of the one was competent and admissible on the trial of the other. State v. Morrow, 262 N.C. 592 , 138 S.E.2d 245, 1964 N.C. LEXIS 707 (1964), cert. denied, 358 S.E.2d 531, 1987 N.C. LEXIS 2314 (N.C. 1987).

In a prosecution of defendant for armed robbery and murder, the trial court did not err in consolidating defendant’s case for trial with that of a codefendant since defendants were charged in separate indictments for the same crimes; they were tried upon the theory that the murder with which they were charged was committed in connection with a robbery committed by them jointly; their defenses were not antagonistic; and neither attempted to incriminate the other in the presentation of an alibi. State v. Smith, 301 N.C. 695 , 272 S.E.2d 852, 1981 N.C. LEXIS 1014 (1981).

Indictment Sufficient. —

Indictment was sufficient where it alleged each of the essential elements of armed robbery: the unlawful taking or attempted taking of personal property of another; the possession, use, or threatened use of firearms or other dangerous weapon, implement or means; and danger or threat to the life of the victim. State v. Patterson, 182 N.C. App. 102, 641 S.E.2d 376, 2007 N.C. App. LEXIS 485 (2007).

Bill of Indictment Illegally Amended to Charge Felony of Attempted Armed Robbery. —

See State v. Teel, 24 N.C. App. 385, 210 S.E.2d 517, 1975 N.C. App. LEXIS 2387 (1975).

Indictment Charged Larceny Not Robbery. —

An indictment charging that defendant at a specified time and place did “with force and arms” feloniously steal, take, and carry away from a person specified, a sum of money, charged the crime of larceny and not that of robbery. State v. Acrey, 262 N.C. 90 , 136 S.E.2d 201, 1964 N.C. LEXIS 591 (1964).

Instruction as to Lesser Included Offense Not Required. —

Trial court was not required to instruct jury on lesser included offense of misdemeanor larceny when state’s evidence sufficiently established requisite elements of robbery with a dangerous weapon, and defendant’s version of the events was consistent with the state’s evidence up until time criminal activity began, at which time, defendant portrayed himself as both a victim and an innocent bystander who was helpless to the mischievous but criminal conduct of his co-defendant. State v. Summerlin, 98 N.C. App. 167, 390 S.E.2d 358, 1990 N.C. App. LEXIS 375 (1990).

Indictment Properly Dismissed. —

In defendant’s conviction for robbery with firearm, the trial court properly denied defendant’s motion to dismiss the indictment based on the State’s withholding of evidence favorable to defendant, as any possible violation of defendant’s rights was completely cured and without prejudice. State v. Geddie, 2003 N.C. App. LEXIS 85 (N.C. Ct. App. Feb. 18, 2003).

Amended Indictment Upheld. —

Because a showing of a taking is not a necessary element of the crime of robbery with a dangerous weapon, the amendment of the indictment against defendant from attempted robbery with a dangerous weapon to robbery with a dangerous weapon sufficiently apprised defendant of the charge against him with enough certainty to have enabled him to prepare his defense and was not in error; further, since the classifications and punishments of the crimes of attempted robbery with a dangerous weapon and robbery with a dangerous weapon are identical, the amendment to defendant’s indictment did not deprive the trial court of knowledge as to the judgment to pronounce in the event of conviction since the amendment did not substantially alter the charge. State v. Van Trusell, 170 N.C. App. 33, 612 S.E.2d 195, 2005 N.C. App. LEXIS 886 (2005).

Amendment of an indictment alleging robbery with a dangerous weapon to remove allegations concerning the amount of money taken during the robberies was permissible because the amendment did not constitute substantial alterations in that the value of the property taken was not an element of the offense but merely surplusage. State v. McCallum, 187 N.C. App. 628, 653 S.E.2d 915, 2007 N.C. App. LEXIS 2561 (2007).

Bill Need Not Name all Victims. —

Force or intimidation occasioned by the use or threatened use of firearms is the main element of the offense of armed robbery, G.S. 14-87 ; the deletion of one of two victim’s names from the indictment at trial did not change the degree or nature of the charged offense of armed robbery and did not prejudice defendant’s theory of defense, and thus the trial court properly allowed the amendment. State v. Ingram, 160 N.C. App. 224, 585 S.E.2d 253, 2003 N.C. App. LEXIS 1731 (2003).

Merger. —

Where defendant convicted of first degree murder did not receive a harsher punishment based on the trial court’s error in not arresting judgment as to a conviction for robbery with a dangerous weapon, in violation of G.S. 14-87 , because the robbery conviction merged into the murder conviction, the sentence for murder was not disturbed. State v. Curry, 203 N.C. App. 375, 692 S.E.2d 129, 2010 N.C. App. LEXIS 684 (2010).

IX.Evidence

Evidence of Demand for Property Not Mentioned in Indictment. —

Upon a conviction of robbery with firearms, the verdict conforming to the charge and evidence, there was no error where evidence, of a demand on the victim for property not mentioned in the indictment, was admitted without objection and referred to in the court’s charge. State v. Mull, 224 N.C. 574 , 31 S.E.2d 764, 1944 N.C. LEXIS 434 (1944).

Evidence of Demand Not Necessary. —

Evidence that defendants drew their pistols, and one defendant told victim, “Buddy, don’t even try it,” held sufficient to show attempted armed robbery, even without a demand for money or property. State v. Davis, 340 N.C. 1 , 455 S.E.2d 627, 1995 N.C. LEXIS 152 , cert. denied, 516 U.S. 846, 116 S. Ct. 136, 133 L. Ed. 2d 83, 1995 U.S. LEXIS 5843 (1995).

Robbery of Same Premises on Prior Occasion. —

In prosecution for armed robbery the trial court did not err in allowing an eyewitness to testify that the defendant robbed the same restaurant three days before the crime for which he was on trial. State v. Garnett, 24 N.C. App. 489, 211 S.E.2d 519, 1975 N.C. App. LEXIS 2410 (1975).

Evidence of a prior robbery was relevant and admissible where defendant’s statement indicated money from the prior robbery was used to buy walkie-talkies, ski masks, and shotguns for the robbery in the case at bar, and the robberies were similar. State v. Colvin, 92 N.C. App. 152, 374 S.E.2d 126, 1988 N.C. App. LEXIS 1024 (1988).

Photographs of Robbery. —

The trial court properly allowed the photographs of the robbery to be admitted into evidence where the accuracy of the photographs was established by the testimony of a witness who was familiar with the scene, object and person portrayed therein. State v. Garnett, 24 N.C. App. 489, 211 S.E.2d 519, 1975 N.C. App. LEXIS 2410 (1975).

Videotape of Robbery. —

Defendant in robbery case argued that the judge erred in allowing the jury to view a videotape without first instructing them that it was admissible solely for the purpose of illustrating the victim’s testimony; however, defendant did not request a limiting instruction, and since the State laid a proper foundation to introduce the videotape for either substantive or illustrative purposes, no limiting instruction was necessary. State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604, 1988 N.C. App. LEXIS 1055 (1988), rev'd in part, 326 N.C. 37 , 387 S.E.2d 450, 1990 N.C. LEXIS 3 (1990).

Testimony as to Absence of Fingerprints. —

In a prosecution of defendant for armed robbery and murder, trial court did not commit prejudicial error in denying defendant’s motion for a mistrial after striking the testimony of several witnesses concerning the absence of fingerprints of defendant at the murder scene and the absence of gunpowder on the hands of bystanders after the robbery-murder, since, the trial court, after the motions to strike were allowed, instructed the jury not to consider the stricken evidence and specifically referred to the evidence and the witness who provided it, there was no way in which defendant would have been prejudiced by the evidence had it not been withdrawn from the jury’s consideration, and defendant’s motion for mistrial was a matter addressed to the sound discretion of the trial judge, and no abuse of that discretion appeared. State v. Smith, 301 N.C. 695 , 272 S.E.2d 852, 1981 N.C. LEXIS 1014 (1981).

Handguns. —

In a prosecution for armed robbery, the Court of Appeals erred in determining that the admission of handguns taken from defendants five weeks after the crime with which they were charged was prejudicial error, since (1) on the basis of the record before the court, it was unable to conclude that the admission of the exhibits by the trial court was in fact error, as the exhibits in question were not placed before the court for its examination, nor was there any stipulation placed in the record which would serve to describe the exhibits; and (2) even if the exhibits were erroneously admitted, defendants were not prejudiced by their admission into evidence, as several witnesses positively identified defendants as the persons who perpetrated the robbery. State v. Milby, 302 N.C. 137 , 273 S.E.2d 716, 1981 N.C. LEXIS 1042 (1981).

Admission of Weapon Without Description. —

Where the court admitted the weapon (a box cutter) itself into evidence, although a verbal description supplemental to introduction of the weapon would have been preferable, its omission was not fatal, and pursuant to N.C.R.A.P. 9(b)(5), the appellate court would order the weapon sent up and added to the record on appeal. State v. Wiggins, 78 N.C. App. 405, 337 S.E.2d 198, 1985 N.C. App. LEXIS 4309 (1985).

Previous Abandoned Plan as Evidence. —

In a prosecution for armed robbery, evidence of a plan to rob a shopping mall, which plan was abandoned because of circumstances at the mall unfavorable to the successful execution of the planned crime, was admissible where within minutes the same parties were engaged in a plan which resulted in the armed robbery. The evidence elicited by the defendants concerning their hesitancy to engage in the charged crimes emphasized the relevancy of the evidence of the abandoned plan, which tends to show intent and the existence of the abandoned plan, which tends to show intent and the existence of a plan and design among defendants and their confederates to obtain money by means of a robbery. State v. Martin, 309 N.C. 465 , 308 S.E.2d 277, 1983 N.C. LEXIS 1437 (1983).

Possession of Recently Stolen Property Raises Presumption. —

If and when it is established that there was an armed robbery in which property was stolen, then the possession of such recently stolen property raises a presumption of fact that the possessor is guilty of the armed robbery. State v. Hickson, 25 N.C. App. 619, 214 S.E.2d 259, 1975 N.C. App. LEXIS 2340 , cert. denied, 288 N.C. 246 , 217 S.E.2d 670, 1975 N.C. LEXIS 940 (1975).

Possession of a non-unique item similar or identical to a stolen item, standing alone, is not sufficient to establish defendant’s possession of the stolen item, so as to apply the doctrine of recent possession for the purpose of inferring that defendant was the thief. State v. Holland, 318 N.C. 602 , 350 S.E.2d 56, 1986 N.C. LEXIS 2742 (1986).

Defendant’s confession, without more, was substantial evidence of each of the essential elements of the crime to support his conviction for robbery of victim with a dangerous weapon. State v. James, 321 N.C. 676 , 365 S.E.2d 579, 1988 N.C. LEXIS 226 (1988).

Trial court’s striking of defendant’s statement that he did not rob the business in question constituted prejudicial error entitling him to a new trial. Defendant’s testimony later in the trial to the effect that he took no money in the course of the robbery did not render the court’s action harmless, since the offense of robbery with a dangerous weapon is completed if there is an attempt to take personal property by the use of a firearm or other deadly weapon. State v. Lassiter, 70 N.C. App. 731, 321 S.E.2d 175, 1984 N.C. App. LEXIS 4023 (1984), cert. denied, 313 N.C. 512 , 329 S.E.2d 398, 1985 N.C. LEXIS 1665 (1985), cert. denied, 313 N.C. 512 , 329 S.E.2d 398 (1985).

Defense of Voluntary Intoxication. —

Defendant’s testimony about his drug use on the night of the crime failed to establish a defense of cocaine-induced intoxication and thus rendered harmless the judge’s alleged misstatement regarding defendant’s inability to raise the defense of voluntary intoxication to the crime of robbery with a firearm. State v. Attmore, 92 N.C. App. 385, 374 S.E.2d 649, 1988 N.C. App. LEXIS 1058 (1988).

Robbery victim’s testimony that defendant had his hand in his pocket as if he was brandishing a gun was sufficient to support defendant’s conviction of robbery with a dangerous weapon; that defendant never said he had a gun and that the victim never actually saw a firearm was not fatal to the State’s case, as the victim reasonably believed that defendant possessed a firearm during the robbery. State v. Bartley, 156 N.C. App. 490, 577 S.E.2d 319, 2003 N.C. App. LEXIS 204 (2003).

Evidence held sufficient to be submitted to the jury on the charge of robbery with firearms. State v. Dorsett, 245 N.C. 47 , 95 S.E.2d 90, 1956 N.C. LEXIS 523 (1956).

Testimony by armed robbery victim, including identification of defendant, was sufficient for submission of case to the jury. State v. Canady, 8 N.C. App. 320, 174 S.E.2d 140, 1970 N.C. App. LEXIS 1550 (1970).

The evidence that defendant had a pistol within easy reach, that he had threatened the prosecutrix with it, and that she was in fear for her life when he took her money, was sufficient to go to the jury on the robbery with firearms charge. State v. Harris, 281 N.C. 542 , 189 S.E.2d 249, 1972 N.C. LEXIS 1107 (1972).

Evidence was sufficient to be submitted to the jury in a prosecution for armed robbery where it tended to show that a store employee was robbed at gunpoint by more than one person; that the persons who robbed him fled from the scene in a red Dodge Aspen; that at least one person fled into the woods at the end of a high speed chase by a county police officer; that police officers used a bloodhound to follow the trail of that person to a location where both defendants were found hiding under a bridge; and that a .32 caliber revolver was also found at that location. State v. Porter, 303 N.C. 680 , 281 S.E.2d 377, 1981 N.C. LEXIS 1268 (1981).

In a prosecution for armed robbery, evidence from which the jury could find that defendant was driving an automobile in the vicinity of the place where the armed robbery occurred with the intention of aiding the robber in his escape, and that defendant picked the robber up in his automobile a few minutes after the robbery and aided the robber in leaving the scene was sufficient evidence to overcome defendant’s motion to dismiss. State v. Monroe, 78 N.C. App. 661, 338 S.E.2d 137, 1986 N.C. App. LEXIS 1966 (1986).

Evidence held sufficient to permit the jury to infer that defendant committed armed robbery. State v. Bush, 78 N.C. App. 686, 338 S.E.2d 590, 1986 N.C. App. LEXIS 2016 (1986).

Evidence was sufficient to be submitted to the jury in a prosecution for armed robbery where the evidence tended to show that the night manager of a motel sensed an object against his head which felt like a pistol barrel and he heard it click, a toy pistol was found in defendant’s room, and money and a .38 caliber pistol were taken in the robbery. State v. Dark, 26 N.C. App. 610, 216 S.E.2d 498, 1975 N.C. App. LEXIS 2126 , cert. denied, 288 N.C. 245 , 217 S.E.2d 669, 1975 N.C. LEXIS 935 (1975).

Where the State’s evidence showed that the defendant held a dangerous weapon in his hand at the time he assaulted the victim, that he still had the weapon hanging from his arm at the time he went into the kitchen to take food from the refrigerator, and that it was no longer necessary for him to use or threaten to use the weapon at the time of the robbery since he had already injured and subdued the victim, viewing this evidence in the light most favorable to the State, there was sufficient evidence to submit the charge of armed robbery to the jury and the trial court properly denied the defendant’s motion for nonsuit as to that charge. State v. Lilly, 32 N.C. App. 467, 232 S.E.2d 495, 1977 N.C. App. LEXIS 1974 , cert. denied, 292 N.C. 643 , 235 S.E.2d 64, 1977 N.C. LEXIS 1164 (1977).

Evidence was sufficient to be submitted to the jury in a prosecution for armed robbery where it tended to show that a male wearing a stocking mask over his face ran toward the manager of a grocery store who was leaving the store after closing; the man had a gun pointed at the manager; the manager, who was carrying an automatic pistol, turned and fired six times at the man who then fled; approximately an hour later police went to an apartment about six blocks from the store where they found defendant lying on the floor bleeding from gunshot wounds; the apartment was the residence of defendant’s aunt; defendant was taken to the hospital where clothes he was wearing, including trousers and tennis shoes, were taken into custody by police; the tread pattern on the bottom of the tennis shoes was found to be similar to a footprint found near a mud puddle behind the store and to other footprints in the area; and no other shootings were reported that evening. State v. Quinerly, 50 N.C. App. 563, 274 S.E.2d 285, 1981 N.C. App. LEXIS 2129 (1981).

Trial court did not err in denying defendant’s motions to dismiss armed robbery charge where the evidence showed that after defendant initially dragged victim to defendant’s truck, victim said to defendant, “Do you want to get the money? You can get the money and go,” since the fact that the idea of making money from victim’s employer may have originated with victim rather than defendant did not necessarily remove the armed robbery issue from the jury. State v. Sutcliff, 322 N.C. 85 , 366 S.E.2d 476, 1988 N.C. LEXIS 136 (1988).

Where the State’s evidence tended to show that defendant was found hiding beneath a house in the area that the robbers were reported to have run, defendant matched the description of one of the robbers and was in the company of the other defendant who was positively identified by a victim as one of the robbers, and from the area beneath and around the house, law enforcement officers found a pair of flowered shorts and a burgundy silk-type shirt with holes cut in each, two pairs of tennis shoes, a pocket knife, and $305.00, all of which were linked to the robbery, the trial court did not err in submitting the evidence to the jury. State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604, 1988 N.C. App. LEXIS 1055 (1988), rev'd in part, 326 N.C. 37 , 387 S.E.2d 450, 1990 N.C. LEXIS 3 (1990).

The evidence was sufficient to support a finding by the jury that defendant was guilty of conspiracy to commit armed robbery and attempted armed robbery. State v. Bell, 338 N.C. 363 , 450 S.E.2d 710, 1994 N.C. LEXIS 711 (1994), cert. denied, 515 U.S. 1163, 115 S. Ct. 2619, 132 L. Ed. 2d 861, 1995 U.S. LEXIS 4361 (1995), limited, State v. Richardson, 341 N.C. 658 , 462 S.E.2d 492, 1995 N.C. LEXIS 532 (1995).

Where there was substantial evidence to support a finding that the offense charged had been committed and that the defendant committed it, the case was for the jury and the motion to dismiss was properly denied. State v. Workman, 344 N.C. 482 , 476 S.E.2d 301, 1996 N.C. LEXIS 507 (1996).

Trial court did not err in denying defendant’s motion to dismiss a robbery with a dangerous weapon charge for insufficient evidence; although the victim had not seen defendant’s knife until defendant was in custody, an officer who saw the incident testified that he had seen the knife after defendant took the victim’s wallet and immediately after a short chase by the victim, defendant was holding the knife and the wallet while threatening the victim. State v. Blair, 181 N.C. App. 236, 638 S.E.2d 914, 2007 N.C. App. LEXIS 85 (2007).

Evidence that defendant and the victim knew each other and were in close communication; that defendant told defendant’s cousin that defendant and defendant’s son were leaving to commit a robbery; that defendant told defendant’s cousin defendant could obtain firearms; and that, after the murder, defendant was in possession of certain firearms stolen from the victim’s house was sufficient to support a conviction for robbery with a dangerous weapon and, thus, to send the charge to the jury. State v. Rankin, 191 N.C. App. 332, 663 S.E.2d 438, 2008 N.C. App. LEXIS 1320 (2008).

Motion to dismiss was denied because there was sufficient evidence that defendant committed armed robbery in violation of G.S. 14-87 in that: (1) Victim saw an unidentified assailant run away from an ATM after taking the victim’s money; (2) State of North Carolina presented a photograph depicting a bleeding laceration that the victim sustained during the robbery; (3) Assailant ran in the direction of a parking lot where the victim found a pickup truck parked; (4) Victim asked the driver of the truck if the driver had seen a person running from the ATM; (5) Driver replied “yes,” but when asked again later, replied “no” and immediately left for an appointment at 10:40 p.m., despite the victim asking the driver to wait for the police; (6) Victim gave the license plate number of the truck to the police, who found defendant driving the truck; (7) Truck was owned by a suspect in the earlier robbery of another person, who was robbed four hours earlier at an ATM; and (8) Other person’s robber demanded money, brandished a knife, then took the other person’s money out of the ATM and ran to a pickup truck parked in a nearby parking lot. State v. Hill, 210 N.C. App. 170, 706 S.E.2d 799, 2011 N.C. App. LEXIS 305 , aff'd, 365 N.C. 273 , 715 S.E.2d 841, 2011 N.C. LEXIS 814 (2011).

Evidence of Taking Sufficient. —

Although the State did not introduce the money found on defendant’s person, there was substantial evidence that defendant and his accomplices unlawfully took the victim’s personal property. State v. Donnell, 117 N.C. App. 184, 450 S.E.2d 533, 1994 N.C. App. LEXIS 1210 (1994).

Taking the circumstantial evidence in the light most favorable to the State, a reasonable jury could have been convinced beyond a reasonable doubt that there was a taking, so the evidence was sufficient for a conviction for robbery with a dangerous weapon, G.S. 14-87(a), and the defendant’s motion to dismiss was properly denied. State v. White, 154 N.C. App. 598, 572 S.E.2d 825, 2002 N.C. App. LEXIS 1520 (2002).

Evidence was sufficient to support the “taking” element of armed robbery, as a jury could have reasonably concluded that the victim’s purse, which was remained within the victim’s arms reach, was no longer under the victim’s protection because defendant had a gun pressed into the victim’s stomach. State v. Patterson, 182 N.C. App. 102, 641 S.E.2d 376, 2007 N.C. App. LEXIS 485 (2007).

Evidence Sufficient to Be Submitted to Jury in Prosecution for Conspiracy to Commit Armed Robbery. —

See State v. Mason, 24 N.C. App. 568, 211 S.E.2d 501, 1975 N.C. App. LEXIS 2434 , cert. denied, 286 N.C. 725 , 213 S.E.2d 725, 1975 N.C. LEXIS 1292 (1975).

Evidence Sufficient to Show Conspiracy. —

Evidence held sufficient to show that defendant knew in advance that a robbery was going to occur, that he participated with codefendant in the robbery, with each having preassigned roles, and that defendant and codefendant conspired to commit the robbery. State v. Ayudkya, 96 N.C. App. 606, 386 S.E.2d 604, 1989 N.C. App. LEXIS 1117 (1989).

Evidence was sufficient to convict defendant of conspiracy to commit robbery with a dangerous weapon, as it established that he and his accomplice agreed to rob the victim, that the accomplice let defendant into the victim’s home, that defendant fatally shot him, and that the accomplice helped him remove the victim’s money and drugs. State v. Rogers, 227 N.C. App. 617, 742 S.E.2d 622, 2013 N.C. App. LEXIS 613 (2013).

Evidence held sufficient to show that defendant acted in concert with another in armed robbery. State v. Bray, 321 N.C. 663 , 365 S.E.2d 571, 1988 N.C. LEXIS 225 (1988).

Evidence was sufficient to convict each defendant of robbery with a dangerous weapon where the evidence showed the defendants acted in concert; one defendant’s act of pointing a gun at the victims was sufficient to implicate both defendants for robbery with a dangerous weapon, even though they had not planned, prior to the crime, on using a weapon. State v. Johnson, 164 N.C. App. 1, 595 S.E.2d 176, 2004 N.C. App. LEXIS 694 (2004).

Evidence that defendant, a gang member, (1) on one night met with other gang members to participate in an initiation of gang members, (2) participated in obtaining bullets to support gang missions, (3) asked to be allowed to shoot a victim that was abducted by other gang members, and (4) grumbled when he was not chosen to shoot and kill the victim, was sufficient to show that defendant joined with one or more persons to kidnap, rob, assault with a deadly weapon, and attempt to murder the victim, and was constructively present when the crimes were carried out. State v. Tirado, 358 N.C. 551 , 599 S.E.2d 515, 2004 N.C. LEXIS 911 (2004), cert. denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285, 2005 U.S. LEXIS 2312 (2005).

Sufficient evidence supported defendant’s conviction for armed robbery because, (1) viewed in the light most favorable to the State, the State presented substantial evidence to show that there was an actual taking of property, (2) it is not necessary that defendant committed any of the actions of armed robbery if defendant acted in concert with another person, and, (3) taken in the light most favorable to the State, the evidence supported the trial court’s instruction to the jury of a completed robbery with a firearm, as defendant was actually present during the robbery, and the State presented evidence that defendant participated in the robbery by rifling through the victim’s pockets. State v. Mason, 222 N.C. App. 223, 730 S.E.2d 795, 2012 N.C. App. LEXIS 938 (2012).

Defendant’s participation in elaborate preparations for robbery was sufficient to prove guilt of conspiracy to commit robbery with a dangerous weapon. State v. Colvin, 90 N.C. App. 50, 367 S.E.2d 340, 1988 N.C. App. LEXIS 381 , cert. denied, 322 N.C. 608 , 370 S.E.2d 249, 1988 N.C. LEXIS 384 (1988).

Evidence Insufficient to Show Taking with Intent to Deprive Decedent of Property. —

Where the evidence clearly established that defendant and deceased struggled violently in the area where most of decedent’s personal property was discovered, and defendant’s uncontroverted testimony refuted the conclusion that he forcibly took these items from the decedent with the intent to steal them, the logical inference was that decedent lost these items during the struggle. There was simply no substantial evidence of a taking by defendant with the intent to permanently deprive decedent of the property. Therefore, defendant’s motion to dismiss the charge of robbery with a dangerous weapon should have been dismissed. State v. Bates, 309 N.C. 528 , 308 S.E.2d 258, 1983 N.C. LEXIS 1434 (1983), rev'd, 313 N.C. 591 , 330 S.E.2d 204, 1985 N.C. LEXIS 1561 (1985).

The evidence of robbery with a dangerous weapon was sufficient for the trial court to submit it as an aggravating circumstance where the wallet—containing a driver’s license and other papers, but no money—was found lying open in front of the victim’s body; inside the wallet were a drop and a smear of blood which the defendant admitted could have come from his hand but which he could not explain given the fact that he claimed not to have taken the money until after cleaning up and disposing of the murder weapon and bloody clothes, supporting a reasonable inference that defendant removed the money immediately after the murder. State v. Frogge, 351 N.C. 576 , 528 S.E.2d 893, 2000 N.C. LEXIS 357 , cert. denied, 531 U.S. 994, 121 S. Ct. 487, 148 L. Ed. 2d 459, 2000 U.S. LEXIS 7536 (2000).

Evidence supported defendant’s conviction for robbery with a dangerous weapon, as defendant stated that defendant struck the victim multiple times on the head with a piece of wood and a pot, and those items were recovered from the scene of the crime, and the medical examiner opined that the victim died as a result of multiple blows to the head; defendant’s own witness testified that defendant used cash to purchase cocaine on the night of the homicide, corroborating defendant’s confession that defendant had taken cash from the victim’s wallet. State v. Blue, 207 N.C. App. 267, 699 S.E.2d 661, 2010 N.C. App. LEXIS 1878 (2010).

Victim’s testimony that she awoke to find defendant on top of her holding a knife to her throat, that defendant had taken money from the victim’s purse, that defendant took the victims’ knife, that defendant took the victim’s sports bra, and that the victim never saw her purse after defendant left, was sufficient to support a conclusion that defendant unlawfully took the victim’s property and, thus, to support the conviction for robbery with a dangerous weapon. State v. Speight, 213 N.C. App. 38, 711 S.E.2d 808, 2011 N.C. App. LEXIS 1224 (2011).

Testimony As to State of Mind Admissible. —

Testimony by two of the adult armed robbery victims as to the children’s state of mind was relevant to suggest that their lives were endangered and threatened by defendant’s actions. State v. Anderson, 181 N.C. App. 655, 640 S.E.2d 797, 2007 N.C. App. LEXIS 410 (2007).

Evidence held sufficient to sustain conviction in State v. Vance, 268 N.C. 287 , 150 S.E.2d 418, 1966 N.C. LEXIS 1183 (1966).

The evidence of the State was sufficient to support the verdict of robbery with a firearm where it was established that defendant picked the victim, furnished the weapon, was present during the robbery, refused to identify the robbers, and tried to mislead the officers by identifying another person. State v. Moore, 22 N.C. App. 679, 207 S.E.2d 358, 1974 N.C. App. LEXIS 2415 , cert. denied, 285 N.C. 762 , 209 S.E.2d 287, 1974 N.C. LEXIS 1166 (1974).

The evidence was sufficient to show that the crime of armed robbery was committed and that defendant committed it, where it tended to show that the victim’s personal property was taken from his person without his consent by violent means with the intent to steal, and a firearm was used, even though the victim was shot first and then his money was taken. State v. Handsome, 300 N.C. 313 , 266 S.E.2d 670, 1980 N.C. LEXIS 1079 (1980).

Evidence that store personnel allowed defendant to take a coat only because they were afraid, since he had a gun and threatened to kill one of them, was sufficient to support a jury finding that the defendant’s use or threatened use of the gun was inseparable from the taking and induced the victims to part with the coat. State v. Hope, 317 N.C. 302 , 345 S.E.2d 361, 1986 N.C. LEXIS 2778 (1986).

Where there was evidence that a .410 shotgun and other property was taken from residence and that the .410 shotgun was used to kill victim, the jury could have found beyond a reasonable doubt that defendant used violence before he left the victim’s premises with the stolen property, and therefore, before the taking was over, and thus the evidence was sufficient to support a conviction of robbery with a deadly weapon. State v. Sumpter, 318 N.C. 102 , 347 S.E.2d 396, 1986 N.C. LEXIS 2573 (1986).

The evidence was clearly sufficient to show that the defendant, whether acting alone or together with the codefendant pursuant to a common purpose, committed the crimes of second-degree murder and armed robbery against the victim. State v. Giles, 83 N.C. App. 487, 350 S.E.2d 868, 1986 N.C. App. LEXIS 2729 (1986).

Evidence held to constitute substantial evidence of each element of armed robbery and first-degree murder committed with premeditation and deliberation, and of defendant as the perpetrator. State v. Williams, 319 N.C. 73 , 352 S.E.2d 428, 1987 N.C. LEXIS 1825 (1987).

Evidence held sufficient to support convictions of robberies with a firearm of two murder victims. State v. Robbins, 319 N.C. 465 , 356 S.E.2d 279, 1987 N.C. LEXIS 2085 , cert. denied, 484 U.S. 918, 108 S. Ct. 269, 98 L. Ed. 2d 226, 1987 U.S. LEXIS 4302 (1987).

Evidence tending to show a continuous transaction in which defendant critically wounded the victim and removed his wallet a short time afterwards was sufficient to support defendant’s conviction for armed robbery. State v. Rasor, 319 N.C. 577 , 356 S.E.2d 328, 1987 N.C. LEXIS 2091 (1987).

Evidence held sufficient to convict defendant of both first degree burglary and robbery with a dangerous weapon. State v. Maness, 321 N.C. 454 , 364 S.E.2d 349, 1988 N.C. LEXIS 104 (1988).

Evidence held sufficient to allow the jury to reasonably find that murder was committed by defendant in furtherance of a robbery of the victim and his place of business, and accordingly, to support defendant’s convictions for both second-degree murder and armed robbery. State v. Pearson, 89 N.C. App. 620, 366 S.E.2d 895, 1988 N.C. App. LEXIS 357 , cert. denied, 323 N.C. 627 , 374 S.E.2d 597, 1988 N.C. LEXIS 761 (1988).

The following evidence, viewed in the light most favorable to the State, supported defendant’s conviction for both felony murder and armed robbery: (1) the defendant was at the scene of the crimes at the approximate time of the crimes; (2) he left a witness in a car while he entered a store; (3) he returned to car wearing a different shirt; (4) he was seen leaving the store; (5) he gave money to a witness stating he had gotten it in the store and had had to shoot someone; (6) he threatened to shoot witness if he told anyone; and (7) there had been money in the store earlier in the day. State v. Small, 328 N.C. 175 , 400 S.E.2d 413, 1991 N.C. LEXIS 87 (1991).

State’s evidence was sufficient to support a felony murder charge based on robbery with a dangerous weapon, as the evidence showed defendant and the victim together on a store surveillance videotape, and the next evening defendant was in possession of the victim’s car, wallet, boom box, and other personal property; the evidence also showed that the victim kept his wallet in the pocket of his trousers and his boom box in the house. DNA evidence placed defendant at the victim’s home, and the victim’s blood was found on defendant’s trousers. State v. Campbell, 359 N.C. 644 , 617 S.E.2d 1, 2005 N.C. LEXIS 842 (2005).

Substantial evidence existed in the record to support the trial court’s submission of the case against defendant for robbery with a dangerous weapon to the jury even though no physical evidence was found. State v. Roddey, 110 N.C. App. 810, 431 S.E.2d 245, 1993 N.C. App. LEXIS 674 (1993).

Where there was evidence that defendant was in possession of money apparently belonging to the victim at the time witness and other defendant entered the victim’s home and where there was also evidence that defendant was in possession of a gun at that time, there was sufficient evidence to support defendant’s conviction for robbery with a dangerous weapon. State v. Wiggins, 334 N.C. 18 , 431 S.E.2d 755, 1993 N.C. LEXIS 293 (1993).

Evidence was clearly sufficient to show that defendant robbed victim with the use of a dangerous weapon. State v. Everette, 111 N.C. App. 775, 433 S.E.2d 802, 1993 N.C. App. LEXIS 919 (1993).

The evidence supported the defendant’s convictions of robbery with a dangerous weapon and attempted robbery with a dangerous weapon, where the defendant and his accomplice entered a victim’s home, displayed weapons, and required certain victims to give them money and jewelry. State v. Allred, 131 N.C. App. 11, 505 S.E.2d 153, 1998 N.C. App. LEXIS 1235 (1998).

Evidence supported the defendant’s conviction for robbery with a dangerous weapon, where the defendant was seen in a bar near the victim’s home shortly before he was robbed and murdered, the defendant’s palm print was found in the victim’s home, and the defendant was seen driving the victim’s car and trying to use his cash card shortly before his body was discovered. State v. Thomas, 350 N.C. 315 , 514 S.E.2d 486, 1999 N.C. LEXIS 246 , cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388, 1999 U.S. LEXIS 7570 (1999).

The victim’s testimony that defendant “held a metal object towards her” and demanded all the money in the store’s cash register, coupled with her testimony that she was afraid for her life, was sufficient to satisfy the requirements of this section. State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734, 1999 N.C. App. LEXIS 1378 (1999), cert. dismissed, 367 N.C. 515 , 762 S.E.2d 453, 2014 N.C. LEXIS 693 (2014), writ denied, 368 N.C. 598 , 780 S.E.2d 556, 2015 N.C. LEXIS 1205 (2015).

State presented substantial evidence to support each element of robbery with a dangerous weapon; there was substantial evidence that defendant was the man who unlawfully took the victims’ personal property, that a dangerous weapon was used in the robbery, and that the lives of the victims were threatened. State v. McConico, 153 N.C. App. 723, 570 S.E.2d 776, 2002 N.C. App. LEXIS 1274 (2002), cert. denied, 357 N.C. 168 , 581 S.E.2d 440, 2003 N.C. LEXIS 457 (2003).

Although the State Supreme Court cautioned counsel against using Biblical arguments when arguing to the jury that a defendant deserved the death penalty, the court held that the prosecutor’s use of Biblical references during an argument to the jury in defendant’s case were not so grossly improper that the trial court erred by failing to intervene ex mero motu, and the court upheld defendant’s convictions for first-degree murder and robbery with a firearm based on evidence which showed that defendant shot a victim twice in the face with a shotgun and took the victim’s car and other personal property. State v. Haselden, 357 N.C. 1 , 577 S.E.2d 594, 2003 N.C. LEXIS 318 , cert. denied, 540 U.S. 988, 124 S. Ct. 475, 157 L. Ed. 2d 382, 2003 U.S. LEXIS 8097 (2003).

Evidence that defendant entered an apartment armed with a loaded shotgun, chambered a round of ammunition, verbally threatened the occupants with death, hit one of the occupants in the head to coerce surrender of his property, and shot another occupant in the head at close range while he was involved in a confrontation with another robber was sufficient to sustain the jury’s verdict that the killing and robbery were part of a single transaction, and the trial court did not err when it selected attempted armed robbery as the predicate felony for felony murder, arrested only that conviction, and entered judgments convicting defendant of felony murder and three counts of armed robbery. State v. Coleman, 161 N.C. App. 224, 587 S.E.2d 889, 2003 N.C. App. LEXIS 2039 (2003).

There was substantial evidence that defendant used a dangerous weapon to rob her victim, and defendant’s conviction for robbery with a dangerous weapon was affirmed where, although the victim did not know who struck her, she testified that the last thing she remembered before waking up in a hospital’s emergency room was getting out of her vehicle to speak with defendant following a collision which defendant admitted having caused intentionally; although no weapon was produced at trial, a treating doctor testified that the victim received head injuries consistent with the use of a foreign instrument against the back of her head, and that, although her other injuries were consistent with a fall, in his opinion her head injuries occurred before she fell to the curb. State v. Singletary, 163 N.C. App. 449, 594 S.E.2d 64, 2004 N.C. App. LEXIS 509 , cert. denied, 359 N.C. 196 , 608 S.E.2d 65, 2004 N.C. LEXIS 1285 (2004).

Defendant’s motion to dismiss for insufficient evidence was properly denied where the charge of robbery with a dangerous weapon was supported by evidence that the victim had money stolen at gunpoint and identified defendant, a person he had known for 15 years, as the assailant. State v. Boyd, 209 N.C. App. 418, 705 S.E.2d 774, 2011 N.C. App. LEXIS 195 (2011).

Evidence was sufficient to convict defendant of robbery with a dangerous weapon, as testimony that he went to the victim’s home intending to rob him, fatally shot him, and left with money and drugs established that the robbery and shooting were a continuous transaction. State v. Rogers, 227 N.C. App. 617, 742 S.E.2d 622, 2013 N.C. App. LEXIS 613 (2013).

Trial court did not err by denying defendant’s motion to dismiss one of the counts of attempted robbery with a dangerous weapon because there was sufficient evidence to support two separate attempted robbery convictions, as defendant and his co-conspirators robbed two different victims in two different rooms of the residence they targeted. The evidence also showed that after learning a second victim was present, defendant indicated a desire to follow through with the robbery. State v. Jastrow, 237 N.C. App. 325, 764 S.E.2d 663, 2014 N.C. App. LEXIS 1148 (2014).

Evidence Held Insufficient to Support Conviction. —

Proof of the defendant’s presence in a place of business, his possession therein of a firearm and his intent to commit the offense of robbery was not sufficient to support a conviction of the offense described in this section, for it omitted the essential elements of (1) a taking or attempt to take personal property, and (2) the endangering or threatening of the life of a person. State v. Evans, 279 N.C. 447 , 183 S.E.2d 540, 1971 N.C. LEXIS 845 (1971).

Where the evidence was insufficient to establish that murder victim was in possession of his watch or ring at the time of alleged robbery, the fact that these items were absent from the scene of the murder and alleged robbery and were never recovered thereafter was insufficient to establish proof of robbery with a dangerous weapon. State v. Holland, 318 N.C. 602 , 350 S.E.2d 56, 1986 N.C. LEXIS 2742 (1986).

Uncontradicted evidence offered by the State that the defendant, who had been asked by county police to act as an informant about break-ins at grocery stores possibly involving the co-defendant, informed the police of the intended robbery beforehand and later assisted the police in gathering evidence did not permit a reasonable inference that the defendant had the specific intent to unlawfully deprive the store owner of his personal property, and, thus, the trial court erred in denying the defendant’s motions to dismiss the charge of attempted robbery with a dangerous weapon. State v. Allison, 319 N.C. 92 , 352 S.E.2d 420, 1987 N.C. LEXIS 1823 (1987).

Evidence was insufficient to support conviction for attempted robbery with a dangerous weapon because the weapons used during the commission of the offenses were not firearms but air pistols and the State failed to introduce evidence of the weapons’ capability to inflict death or great bodily injury. State v. Williamson, 272 N.C. App. 204, 845 S.E.2d 876, 2020 N.C. App. LEXIS 469 (2020).

Evidence Held Insufficient to Support Conviction. —

Where there was not sufficient evidence to show the juvenile knew that his friend was going to rob the victim, nor did the State introduce any evidence tending to show that the juvenile encouraged the commission of the crime, and in fact, tried to help stop the attack, the robbery charge should have been dismissed. In re R.P.M., 172 N.C. App. 782, 616 S.E.2d 627, 2005 N.C. App. LEXIS 1803 (2005).

Evidence held insufficient to convict defendant of robbery with a dangerous weapon in violation of this section and assault with a deadly weapon inflicting serious bodily injury in violation of G.S. 14-32(b). State v. Griffin, 84 N.C. App. 671, 353 S.E.2d 679, 1987 N.C. App. LEXIS 2545 , writ denied, 319 N.C. 407 , 354 S.E.2d 732, 1987 N.C. LEXIS 1960 (1987).

Defendant’s conviction of armed robbery, pursuant to G.S. 14-87 , had to be reversed because defendant used only his hands in the robbery and, thus, the evidence was not sufficient to support the conviction of armed robbery; however, pursuant to G.S. 15-170 , there was sufficient evidence for a conviction of the lesser included offense of common law robbery, as defendant stole a car from the victim with the use of force. State v. Staten, 172 N.C. App. 673, 616 S.E.2d 650, 2005 N.C. App. LEXIS 1777 (2005), cert. denied, 547 U.S. 1081, 126 S. Ct. 1798, 164 L. Ed. 2d 537, 2006 U.S. LEXIS 3102 (2006).

Evidence Held Sufficient to Show Use of Dangerous Weapon. —

Defendant’s conviction of robbery with a dangerous weapon, G.S. 14-87 , was affirmed, because evidence was sufficient to support the conviction of robbery with a dangerous weapon, because the evidence established that defendant used a box cutter, which was classified as a dangerous weapon, and that the victim believed that his life was being threatened. State v. Pratt, 161 N.C. App. 161, 587 S.E.2d 437, 2003 N.C. App. LEXIS 1979 (2003).

Failure to Show Material or Prejudicial Errors. —

In the appeal of a conviction for robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury, where defendant assigned as error the failure of the trial court to sustain three objections made by defendant during the testimony of the victim in which the victim stated that she was not sure how good her husband’s hearing was on the side where he had been shot; that she can still see the defendant’s face when she closes her eyes; and that she let the defendant take the money because he had a gun, the defendant may have been correct in his assertion that these answers were in places speculative or unresponsive, but neither the defendant nor the record showed that the errors were material or prejudicial, and absent such a showing defendant was not entitled to a new trial. State v. Billups, 301 N.C. 607 , 272 S.E.2d 842, 1981 N.C. LEXIS 1012 (1981).

Variance as to Ownership. —

In respect of armed robbery, variance between the allegations of the indictment and the proof in respect of the ownership of the property taken is not material. State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982).

Variance as to Ownership of Store from Which Property Taken. —

A variance between the allegation in the indictment which alleged that one person was the owner and in charge of the store from which the property was forcibly taken and the evidence which disclosed that another person owned the store was not fatal to an indictment which contained all essential averments required by the statute. State v. Waddell, 279 N.C. 442 , 183 S.E.2d 644, 1971 N.C. LEXIS 844 (1971).

No Fatal Variance Between Indictment and Evidence. —

There was no fatal variance between an indictment which charged that property was taken from the “residence” or “place of business” of a named person and evidence that the armed robbery occurred at a finance company where the person named was employed, the property having been in the lawful custody of such person. State v. McGilvery, 9 N.C. App. 15, 175 S.E.2d 328, 1970 N.C. App. LEXIS 1264 (1970).

Variance Between Allegations and Proof as to Property Taken Not Material. —

Variance between the allegations of the indictment and the proof in respect of the property taken was not material. State v. Ballard, 280 N.C. 479 , 186 S.E.2d 372, 1972 N.C. LEXIS 1267 (1972).

Judgment of Nonsuit for Variance Improvidently Entered. —

The fact that one employee named in the indictment as the person endangered and threatened and from whom the store’s money had been taken happened to be farther from the store’s money than two other employees when it was taken into possession by robbers did not negate the fact that the money was taken from the presence of that employee and all other employees then on duty in the store; therefore a judgment of nonsuit for variance was improvidently entered. State v. Ballard, 280 N.C. 479 , 186 S.E.2d 372, 1972 N.C. LEXIS 1267 (1972).

Evidence Sufficient to Deny Motion to Dismiss. —

Trial court properly denied defendants’ motion to dismiss, pursuant to G.S. 15A-954 , in their criminal trial wherein they were charged with robbery with a dangerous weapon in violation of G.S. 14-87 , as there was substantial evidence of each essential element of the offense and of defendants’ identities as the perpetrators; a restaurant employee who was held at gunpoint while the restaurant was robbed testified as to the elements of the offense, and an accomplice who also worked in the restaurant identified defendants as the perpetrators. State v. Jackson, 161 N.C. App. 118, 588 S.E.2d 11, 2003 N.C. App. LEXIS 1980 (2003).

Evidence was sufficient to show defendant attempted to commit the crime of attempted robbery with a dangerous weapon because, viewing the evidence in the light most favorable to the State, a reasonable person could find that defendant and his accomplices, while acting in concert, tried to rob a victim of her pocketbook as they entered the victim’s house with guns drawn. State v. Farrar, 179 N.C. App. 561, 634 S.E.2d 253, 2006 N.C. App. LEXIS 1966 (2006), rev'd in part, 361 N.C. 675 , 651 S.E.2d 865, 2007 N.C. LEXIS 1097 (2007).

Evidence that the victim was going to buy marijuana, defendant had money with the victim’s blood on defendant, and defendant had several bags of marijuana on defendant was sufficient to allow a jury to infer that defendant robbed the victim and killed the victim in the process and thus, to withstand defendant’s motion to dismiss the charge of felony murder based on armed robbery. State v. Dawkins, 196 N.C. App. 719, 675 S.E.2d 402, 2009 N.C. App. LEXIS 513 (2009).

Evidence that defendant had injured the victim with the pickaxe when defendant demanded the victim’s wallets was sufficient to defeat a motion to dismiss. State v. Flaugher, 214 N.C. App. 370, 713 S.E.2d 576, 2011 N.C. App. LEXIS 1754 (2011).

Evidence allowed a reasonable inference that defendant participated in the robbery and larceny of the victim’s motorcycle, and that the victim was killed during that robbery and larceny, and thus the State presented substantial evidence to allow the jury to draw the inference that defendant was the perpetrator of robbery with a dangerous weapon and larceny, and his motion to dismiss was properly denied. State v. Stroud, 252 N.C. App. 200, 797 S.E.2d 34, 2017 N.C. App. LEXIS 134 (2017).

Evidence was Sufficient to Find Defendant Aided and Abetted the Armed Robbery. —

State offered sufficient circumstantial evidence to allow the jury to find that defendant aided and abetted the friend’s armed robbery by driving the “get away” car; immediately after committing the robbery, the friend got into the car at the gas station with his loaded gun, a ski cap, and gloves although it was a hot May day, and a paper bag with the stolen money, defendant then drove off, with a loaded gun under his own seat, taking the “back way home,” while the friend lay down on the back seat of the car. State v. Clark, 159 N.C. App. 520, 583 S.E.2d 680, 2003 N.C. App. LEXIS 1491 (2003).

X.Instructions

Instruction on Element of Felonious Taking. —

In every armed robbery case the judge must instruct the jury on the element of felonious taking, but he need not use the specific words “felonious taking”; he is only required to describe in accurate terms the state of mind necessary for the crime. State v. Harmon, 21 N.C. App. 508, 204 S.E.2d 883, 1974 N.C. App. LEXIS 1853 , cert. denied, 285 N.C. 593 , 205 S.E.2d 724, 1974 N.C. LEXIS 1040 (1974), cert. denied, 285 N.C. 593 , 206 S.E.2d 864 (1974).

Explanation of Principles of Aiding and Abetting. —

When the State presents evidence tending to show defendant might have aided and abetted, it is incumbent upon the trial court to explain the principles of aiding and abetting which apply to the particular evidence in the case. State v. Logan, 25 N.C. App. 49, 212 S.E.2d 236, 1975 N.C. App. LEXIS 2166 (1975).

Reading Statute to Jury Without Further Comment. —

Any error resulting from a plain reading of the statute to the jury without further comment is neither material nor prejudicial. State v. Westry, 15 N.C. App. 1, 189 S.E.2d 618, 1972 N.C. App. LEXIS 1817 , cert. denied, 281 N.C. 763 , 191 S.E.2d 360, 1972 N.C. LEXIS 1214 (1972).

Reference to “Some Weapon”. —

In its instructions, the trial court’s use of the words “some weapon” rather than “firearms or other dangerous weapon,” although not approved, was not such as to mislead or misinform the jury, where the court specified a pistol as the weapon allegedly used elsewhere in the charge. State v. Bailey, 278 N.C. 80 , 178 S.E.2d 809, 1971 N.C. LEXIS 941 (1971).

Definition of Dangerous Weapon. —

Although the court omitted the word “death” from the instruction defining dangerous weapon, the trial court’s instruction as to the definition of serious bodily injury was appropriate to aid the jury in determining if the instrument was likely to cause death or serious bodily injury, and, therefore, to endanger or threaten life. State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24, 1994 N.C. App. LEXIS 1079 (1994).

Victim’s Belief That Weapon Was Firearm. —

Where victim’s testimony showed that she believed the gun to be a firearm, the trial court properly refused to give an instruction on the lesser included offense of common law robbery. State v. Wilson, 121 N.C. App. 720, 468 S.E.2d 475, 1995 N.C. App. LEXIS 1096 (1995).

Instruction Not Relieving State of Proving Essential Element. —

An instruction which merely informed the jury that a .22 caliber pistol was, in fact, a firearm, and should the jury find that defendant used a .22 caliber pistol on the occasion in question then such a weapon would be a firearm within the meaning of that term as used in this section, was not objectionable on the ground that the instruction in effect told the jury that defendant used a firearm in the commission of the robbery, thereby relieving the State of the burden of proving an essential element of armed robbery. State v. Bailey, 280 N.C. 264 , 185 S.E.2d 683, 1972 N.C. LEXIS 1226 , cert. denied, 409 U.S. 948, 93 S. Ct. 293, 34 L. Ed. 2d 218, 1972 U.S. LEXIS 947 (1972).

Common Purpose. —

Fact that the trial court’s instructions on the law of acting in concert allowed the jury to convict defendant of robbery with a dangerous weapon without proof that he shared a common purpose with his codefendants to use a firearm in the robbery did not result in error, in light of the principle that G.S. 14-87 did not create a new crime but merely increased the punishment which could be imposed for common law robbery when the perpetrator used a weapon. State v. Thompson, 149 N.C. App. 276, 560 S.E.2d 568, 2002 N.C. App. LEXIS 213 (2002).

Unauthorized Expression of Opinion. —

Where defendants entered pleas of not guilty to charges of armed robbery and there was nothing in the record to show that they made any judicial admission that the offense had actually occurred, a trial court’s instruction to the jury that defendants “do not deny that somebody did this, but they say they are not the men, and some other men did it, not themselves,” was an unauthorized expression of opinion on the evidence in violation of this section. State v. Brinkley, 10 N.C. App. 160, 177 S.E.2d 727, 1970 N.C. App. LEXIS 1216 (1970).

Charge as to Two Counts Where Facts Supported Only One Count. —

Where defendant took money from a store owner and no injury was inflicted on any one of the employees, even though the lives of all employees present were endangered, a charge and conviction of two counts of robbery was erroneous: Defendant committed only one robbery. State v. Potter, 285 N.C. 238 , 204 S.E.2d 649, 1974 N.C. LEXIS 967 (1974).

Error to Give Instruction for Second-Degree Murder Based upon Mens Rea for Robbery. —

Trial court erroneously instructed the jury it could convict defendant of second-degree murder if it found he acted in concert with co-felon “with a common purpose to commit robbery”; a conviction for second-degree murder requires a finding that defendant acted intentionally and with malice to kill the victim; therefore, the erroneous instruction given by the trial court could have allowed defendant to be convicted of second-degree murder based on the defendant’s mens rea for robbery. State v. Hunt, 91 N.C. App. 574, 372 S.E.2d 744, 1988 N.C. App. LEXIS 895 (1988).

Evidence Supporting Charge on Both Kidnapping and Armed Robbery. —

Where a victim was forced from his residence at gunpoint and transported by a car for a distance of eight miles where he was robbed, there was sufficient asportation and evidence to support a charge to the jury on both kidnapping and armed robbery, and the State is not required to elect between charges. State v. Sommerset, 21 N.C. App. 272, 204 S.E.2d 206, 1974 N.C. App. LEXIS 1777 , cert. denied, 285 N.C. 594 , 205 S.E.2d 725, 1974 N.C. LEXIS 1048 (1974).

Knife as Deadly Weapon. —

In prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and for attempted robbery with a dangerous weapon, where victim testified that she was stabbed with a pocketknife and treating physician testified that victim was bleeding profusely from all of her wounds when she arrived at hospital, that she lost from one to two quarts of blood and that she had to be hospitalized for four days, the trial court did not err in instructing the jury that a knife is a dangerous or deadly weapon. State v. Mason, 79 N.C. App. 477, 339 S.E.2d 474, 1986 N.C. App. LEXIS 2081 (1986).

Cap Pistol. —

In a case where there was evidence that the instrument used by defendant in the robbery appeared to be a firearm capable of endangering or threatening the life of the victim and there was also evidence that the instrument was either a cap pistol or an inoperative firearm incapable of threatening or endangering the life of the victim, it was for the jury to determine the nature of the weapon. The jury should have been instructed that they could, but were not required to, infer from the instrument’s appearance to the victim that it was a firearm or other dangerous weapon. State v. Allen, 317 N.C. 119 , 343 S.E.2d 893, 1986 N.C. LEXIS 2403 (1986).

Instruction to Return Verdict of Guilty “as Charged”. —

In a prosecution for robbery by use of a knife, an instruction to return a verdict of guilty “as charged,” without any reference to a knife or other weapon whereby the life of the victim was endangered or threatened, was erroneous. State v. Ross, 268 N.C. 282 , 150 S.E.2d 421, 1966 N.C. LEXIS 1181 (1966).

Lesser Included Offenses. —

The elements of violence and taking were so joined in time and circumstances that the trial court did not err by refusing to instruct the jury on the lesser included offenses. State v. Hartman, 344 N.C. 445 , 476 S.E.2d 328, 1996 N.C. LEXIS 502 (1996), cert. denied, 520 U.S. 1201, 117 S. Ct. 1562, 137 L. Ed. 2d 708, 1997 U.S. LEXIS 2745 (1997).

The trial judge did not err in giving instructions for robbery with a dangerous weapon without instructing for the offense of misdemeanor larceny where the evidence presented at trial positively established the elements of armed robbery. State v. Washington, 142 N.C. App. 657, 544 S.E.2d 249, 2001 N.C. App. LEXIS 174 (2001).

When defendants were convicted of robbery with a dangerous weapon, under G.S. 14-87(a), as well as felonious conspiracy to commit robbery with a firearm, it was not plain error not to instruct the jury on the allegedly lesser included offense of aggravated common law robbery because (1) the crime of aggravated common law robbery was not recognized in North Carolina, and (2) the evidence fully supported defendants’ convictions for armed robbery and did not support a conviction for any lesser included offense. State v. Harris, 222 N.C. App. 585, 730 S.E.2d 834, 2012 N.C. App. LEXIS 1025 (2012), cert. denied, 569 U.S. 952, 133 S. Ct. 2010, 185 L. Ed. 2d 876, 2013 U.S. LEXIS 3187 (2013).

Trial court did not err at defendant’s trial for robbery with a dangerous weapon by not instructing the jury on extortion as a lesser included offense of armed robbery. State v. Wright, 240 N.C. App. 270, 770 S.E.2d 757, 2015 N.C. App. LEXIS 261 (2015).

Instruction on Attempt Not Warranted. —

In view of evidence that defendant used a knife to rob victim, defendant was not entitled to have the court instruct the jury on attempted common law robbery. Defendant was either guilty of attempting to rob victim of his wallet and money by the threatened use of a knife or not guilty. State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550, 1988 N.C. App. LEXIS 177 (1988).

Failure to Instruct on Common-Law Robbery Was Error. —

Defendant was entitled to a new trial on robbery with dangerous weapon charge, because the jury should have been instructed on lesser included offenses of common law robbery where the jury could have found that the victim relinquished the victim’s car due to threat of being hit with defendant’s fist, which was not a dangerous weapon. State v. Ryder, 196 N.C. App. 56, 674 S.E.2d 805, 2009 N.C. App. LEXIS 457 (2009).

After the defendant was convicted of attempted robbery with a dangerous weapon, the trial court erred in not instructing the jury on the lesser included offense of common law robbery because the State put forth some evidence that the weapon used was a BB gun, and a BB gun was not a dangerous weapon. State v. Wise, 269 N.C. App. 105, 837 S.E.2d 193, 2019 N.C. App. LEXIS 1020 (2019).

Failure to Instruct on Common-Law Robbery Not Error. —

The trial court did not err in denying request for an instruction on common-law robbery where state’s evidence included use of pry bar, screwdriver, and lug wrench carried into the trailer by the assailants. State v. Johnson, 337 N.C. 212 , 446 S.E.2d 92, 1994 N.C. LEXIS 423 (1994).

Failure to instruct the jury on the lesser included offense of common law robbery, in addition to robbery under G.S. 14-87 , was not error because the evidence showed the police found what appeared to be a silver handgun outside a bedroom window where defendant’s accomplice was found, and the victim told police that one of the men who robbed the store pointed a silver handgun at the clerk. State v. Ford, 194 N.C. App. 468, 669 S.E.2d 832, 2008 N.C. App. LEXIS 2228 (2008).

Failure to Instruct on Defense of Voluntary Intoxication Not Error. —

Where the only charge against defendant to which voluntary intoxication was relevant was the charge of robbery with a firearm, defendant not only testified as to his intent to commit robbery, he testified in great detail about the events that occurred in the supermarket and beyond defendant’s own statements that he was “zooted” on the night in question, and the only suggestion of intoxication was witness’s observation that defendant’s eyes appeared “glassy,” this evidence was not sufficient to have entitled defendant to an instruction on intoxication, and there was no error in the failure of the judge to submit the charge to the jury. State v. Attmore, 92 N.C. App. 385, 374 S.E.2d 649, 1988 N.C. App. LEXIS 1058 (1988).

Error in the instructions with respect to actual or constructive possession did not entitle defendant to a new trial where the central issue was whether the defendant’s use of the pistol to threaten and endanger the victim was close enough in time to the taking of the property as to constitute one continuous transaction and the trial court’s instructions upon this point were clear and correct. State v. Jarrett, 137 N.C. App. 256, 527 S.E.2d 693, 2000 N.C. App. LEXIS 318 (2000).

Instruction on Defense of Duress Not Warranted. —

Defendant’s testimony that during struggle with victim he gained control of gun, demanded and received victim’s wallet, and then shot him in the back of the head plainly negated a defense of duress, and the trial court did not err in refusing to give such an instruction in connection with armed robbery charge. State v. Bailey, 97 N.C. App. 472, 389 S.E.2d 131, 1990 N.C. App. LEXIS 163 (1990).

Instruction on Right Not to Retreat. —

Defendant was entitled to a jury instruction relating the defendant’s right not to retreat where the evidence revealed that defendant did not stab the victim until after trying to leave the house on two occasions and after the victim tried to choke her. State v. Brown, 117 N.C. App. 239, 450 S.E.2d 538, 1994 N.C. App. LEXIS 1206 (1994), cert. denied, 339 N.C. 616 , 454 S.E.2d 259, 1995 N.C. LEXIS 27 (1995), cert. denied, 340 N.C. 115 , 456 S.E.2d 320, 1995 N.C. LEXIS 212 (1995).

Instruction Proper Where Substantially the Same. —

There was no error where the instruction given by the court was substantially the same as the one requested by the defendant. State v. Duncan, 136 N.C. App. 515, 524 S.E.2d 808, 2000 N.C. App. LEXIS 59 (2000).

Requested Instructions. —

In defendant’s conviction for robbery with firearm, the trial court did not err in denying defendant’s requested jury instructions that the victim had an interest in this case because of pending criminal charges; although the trial court’s instruction was more general than defendant’s requested instructions, it substantially conformed with defendant’s request, and defendant was also allowed to cross-examine the victim regarding the pending criminal charges, and was allowed to argue the point to the jury. State v. Geddie, 2003 N.C. App. LEXIS 85 (N.C. Ct. App. Feb. 18, 2003).

Harmless Error. —

In a prosecution for robbery with a dangerous weapon, if it was error for the trial court to fail to instruct the jury on misdemeanor larceny, the error was harmless beyond a reasonable doubt, under G.S. 15A-1443(b) , given the overwhelming evidence of defendant’s guilt as, while defendant denied possessing or using a knife to accomplish the taking, he did not deny his threat of force against the victim, and the victim’s testimony unequivocally showed that in a single, continuous transaction defendant stole videotapes and, in order to escape, threatened the victim with a knife after a pursuit that ended only 20 feet from the victim’s store. State v. Bellamy, 159 N.C. App. 143, 582 S.E.2d 663, 2003 N.C. App. LEXIS 1434 , cert. denied, 357 N.C. 579 , 589 S.E.2d 130, 2003 N.C. LEXIS 1306 (2003).

Elements of the Offense. —

Although a jury instruction did not specifically mention any particular element of the offense charged — only that the evidence tended to show that defendant admitted one or more facts relating to the crime charged under G.S. 14-87(a) — the testimony provided the evidence needed to support some of the elements of the charge. State v. Borders, 164 N.C. App. 120, 594 S.E.2d 813, 2004 N.C. App. LEXIS 740 (2004).

XI.Punishment

Punishment Provisions Constitutional. —

It is within the province of the General Assembly to prescribe maximum punishments which may be imposed upon those convicted of crime. It is not for courts to say that the policy judgment of the General Assembly with respect to punishment for armed robbery is wrong. Armed robbery is a crime of violence and those who take the risk must assume the consequences involved. The punishment provisions of this section are constitutionally valid. State v. Legette, 292 N.C. 44 , 231 S.E.2d 896, 1977 N.C. LEXIS 1041 (1977); State v. Watson, 294 N.C. 159 , 240 S.E.2d 440, 1978 N.C. LEXIS 1193 (1978).

Subsection (d) Controls over Fair Sentencing Act. —

The legislature clearly intended the provisions of subsection (d) of this section to control over the conflicting provisions of the Fair Sentencing Act, G.S. 15A-1340.1 et seq. State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7, 1982 N.C. App. LEXIS 3068 (1982).

Section 15A-1335 did not apply on resentencing where the judge did not weigh aggravating factors but imposed the minimum sentence of 14 years prescribed by subsection (d) of this section. State v. Williams, 74 N.C. App. 728, 329 S.E.2d 709, 1985 N.C. App. LEXIS 3568 (1985).

Minimum and Presumptive Sentence Is 14 Years. —

Considering (1) the combined effect of subsection (d) of this section and G.S. 15A-1340.4(f) excepting robbery with a firearm from the 12-year presumptive sentence of other Class D felonies, and (2) the amendment of subsection (a) of this section specifically to state that one who robs with a firearm shall be guilty of a Class D felony (and not that the person shall be punished as a Class D felon), 14 years is not only the minimum, but also the presumptive, sentence in robbery with firearm cases. State v. Morris, 59 N.C. App. 157, 296 S.E.2d 309, 1982 N.C. App. LEXIS 3079 (1982).

The language of subsection (d) of this section is unambiguous and its effect is clear. Any person convicted of armed robbery must receive no less than a 14-year sentence, notwithstanding any other provision of law. Thus, there is no room for judicial construction on this point. State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7, 1982 N.C. App. LEXIS 3068 (1982).

Under subsection (d) of this section, trial judges are prohibited from imposing a term of less than 14 years. State v. Williams, 74 N.C. App. 728, 329 S.E.2d 709, 1985 N.C. App. LEXIS 3568 (1985).

And May Not Be Reduced Except for Good Behavior. —

As the General Assembly has chosen to remove much of the discretionary power which judges previously exercised in the sentencing process, the 14-year sentence for armed robbery specified in subsection (d) of this section is a minimum which may not be reduced under the Fair Sentencing Act, G.S. 15A-1340.1 et seq., except by credit for good behavior. State v. Leeper, 59 N.C. App. 199, 296 S.E.2d 7, 1982 N.C. App. LEXIS 3068 (1982).

Findings as to Aggravating and Mitigating Factors Not Required Where Presumptive Sentence Imposed. —

Where the court imposes the presumptive sentence specified in subsection (d) of this section, it is not required to make any findings regarding aggravating and mitigating factors. State v. Horne, 59 N.C. App. 576, 297 S.E.2d 788, 1982 N.C. App. LEXIS 3177 (1982); State v. Crain, 73 N.C. App. 269, 326 S.E.2d 120, 1985 N.C. App. LEXIS 3248 (1985).

Possession or use of a firearm should not be used as an aggravating factor to lengthen the sentence in a robbery with firearm case. State v. Morris, 59 N.C. App. 157, 296 S.E.2d 309, 1982 N.C. App. LEXIS 3079 (1982).

Pecuniary Gain as Aggravating Factor. —

If the pecuniary gain at issue in a case is inherent in the offense, then that “pecuniary gain” should not be considered an aggravating factor. Pecuniary incentive is not always inherent in the crime. Thus, the determination, whether pecuniary gain as an aggravating factor, is also an element of the underlying offense, is a factual one. For example, if A hires or pays B to disarm C with the threatened use of a firearm and to throw C’s weapon in the river, B could be convicted of robbery with a firearm, and B’s sentence could be enhanced by the aggravating fact that the offense was committed for hire or pecuniary gain. State v. Morris, 59 N.C. App. 157, 296 S.E.2d 309, 1982 N.C. App. LEXIS 3079 (1982).

Bodily Injury to Blind Victim as Aggravating Factor. —

It was proper to find as a factor in aggravation that the defendant inflicted bodily injury upon his blind victim who was both helpless and defenseless in excess of the minimum amount necessary to prove this offense. The infliction of bodily injury in any amount is not an element of either first-degree burglary or robbery with a firearm. State v. Isom, 65 N.C. App. 223, 309 S.E.2d 283, 1983 N.C. App. LEXIS 3467 (1983).

Aggravating Circumstance to Felony Murder. —

Trial court did not err in allowing the jury to find as an aggravating circumstance that a murder was committed during a robbery where the evidence showed that, after the elderly victim invited defendant into his home, defendant grabbed the victim, choked him until he became unconscious, bound him, covered his face in tape, and left him to die from asphyxiation under a bed before defendant then ransacked the victim’s home and left with cash, other personal items, and the victim’s car. State v. Smith, 359 N.C. 199 , 607 S.E.2d 607, 2005 N.C. LEXIS 28 , cert. denied, 546 U.S. 850, 126 S. Ct. 109, 163 L. Ed. 2d 121, 2005 U.S. LEXIS 6884 (2005).

Predicate for Felony Murder. —

Jury determined that the robbery with a dangerous weapon, larceny, and possession of stolen goods convictions served as the predicate felonies underlying defendant’s conviction for first-degree felony murder, and the trial court failed to arrest judgment on the underlying felonies; the court arrested judgment on the convictions for robbery and larceny, and the possession of stolen goods conviction was vacated. State v. Stroud, 252 N.C. App. 200, 797 S.E.2d 34, 2017 N.C. App. LEXIS 134 (2017).

Sentences Need Not Be Consecutive for Offenses Disposed of at Same Proceeding. —

Where two or more armed robbery offenses are being disposed of in the same sentencing proceeding, the sentences are not required by this section to be consecutive to one another because the defendant is not yet serving a sentence for any of the counts at the time of the sentencing proceeding. The sentencing court may impose consecutive sentences, but it is not required to do so. State v. Crain, 73 N.C. App. 269, 326 S.E.2d 120, 1985 N.C. App. LEXIS 3248 (1985); State v. Thomas, 85 N.C. App. 319, 354 S.E.2d 891, 1987 N.C. App. LEXIS 2588 (1987).

Punishment Within Statutory Limits Is Constitutional. —

A sentence of 24 to 30 years for the offense of robbery with firearms does not exceed the maximum prescribed by this section and does not constitute cruel and unusual punishment. State v. LePard, 270 N.C. 157 , 153 S.E.2d 875, 1967 N.C. LEXIS 1319 (1967).

A sentence for robbery which was within the statutory maximum did not constitute the cruel and unusual punishment forbidden by N.C. Const., Art. I, § 14 (now N.C. Const., Art. I, § 27). State v. Witherspoon, 271 N.C. 714 , 157 S.E.2d 362, 1967 N.C. LEXIS 1273 (1967).

Punishment under this section which does not exceed the limit fixed by this section cannot be considered cruel and unusual in a constitutional sense. State v. Frietch, 8 N.C. App. 331, 174 S.E.2d 149, 1970 N.C. App. LEXIS 1556 (1970); State v. Neal, 19 N.C. App. 426, 199 S.E.2d 143, 1973 N.C. App. LEXIS 1673 (1973); State v. Slade, 291 N.C. 275 , 229 S.E.2d 921, 1976 N.C. LEXIS 972 (1976).

A sentence which is within the maximum authorized by statute is not cruel and unusual in a constitutional sense, unless the punishment provisions of the statute itself are unconstitutional. State v. Barrow, 292 N.C. 227 , 232 S.E.2d 693, 1977 N.C. LEXIS 1056 (1977).

Only Recourse Is Executive Clemency. —

If defendant believes that the sentence imposed under this section upon his plea of guilty, understandingly and voluntarily made, is excessive, his sole recourse is to executive clemency, the sentence being within the statutory maximum. State v. Baugh, 268 N.C. 294 , 150 S.E.2d 437, 1966 N.C. LEXIS 1186 (1966).

Setting Minimum Sentence at Maximum. —

In a prosecution for armed robbery, the trial court did not err in sentencing defendant to prison “for the term of not less than thirty (30) years” without specifying a minimum term, since the maximum punishment for armed robbery was 30 years (now 40 years), and the judge set the minimum sentence at the maximum allowed by law. State v. Lipscomb, 27 N.C. App. 416, 219 S.E.2d 349, 1975 N.C. App. LEXIS 1871 (1975).

Maximum Punishment for Common Law Robbery. —

When, on a charge of robbery with firearms or other dangerous weapons, the jury returns a verdict of guilty of robbery, the maximum sentence that may be imposed is ten years. State v. Williams, 265 N.C. 446 , 144 S.E.2d 267, 1965 N.C. LEXIS 1007 (1965).

Discretion of Trial Judge in Imposing Sentence. —

As long as a sentence is within the statutory limits, the punishment imposed by a trial judge is in his discretion. State v. Slade, 291 N.C. 275 , 229 S.E.2d 921, 1976 N.C. LEXIS 972 (1976).

By virtue of subsection (a) of this section, the legislature has granted a wide discretion to the trained presiding judge who has had the opportunity to hear the facts, observe the parties to the proceeding and, after verdict, to inquire into the habits, mentality and past record of the person to be sentenced before imposing punishment within the limits of this section. The use of this discretionary power by the trial judge is not a denial of equal protection of the laws. State v. Jenkins, 292 N.C. 179 , 232 S.E.2d 648, 1977 N.C. LEXIS 1051 (1977).

Where a sentence is within statutory limits the punishment actually imposed by the trial judge is a discretionary matter. State v. Barrow, 292 N.C. 227 , 232 S.E.2d 693, 1977 N.C. LEXIS 1056 (1977).

The actual length of a sentence imposed is at the discretion of a trial judge so long as it is within statutory limits. State v. Watson, 294 N.C. 159 , 240 S.E.2d 440, 1978 N.C. LEXIS 1193 (1978).

Allowing Victim to Comment on Punishment of Defendant. —

In a prosecution for armed robbery the trial court did not commit prejudicial error by allowing a victim of the attempted armed robbery to make a statement relating to the punishment of the defendant. State v. Clemmons, 34 N.C. App. 101, 237 S.E.2d 298, 1977 N.C. App. LEXIS 1587 (1977).

Indictment Insufficient to Permit Punishment Under Section. —

A bill of indictment was sufficient to support a plea or conviction of highway robbery, for the facts alleged were sufficient to charge robbery by intimidation or violence, which is the gist of common-law robbery, but it did not allege that the life of a person was endangered or threatened by the use or threatened use of a dangerous weapon, instrument or means; hence, the indictment did not contain the additional allegations required in order to permit the more severe punishment provided for in this section. State v. Stewart, 255 N.C. 571 , 122 S.E.2d 355, 1961 N.C. LEXIS 642 (1961).

Plea of Guilty of Robbery Without Firearms. —

Where defendant was charged with attempted robbery with firearms, his plea of guilty of robbery without firearms was insufficient to support judgment, and the court erred in accepting such plea. State v. Hare, 243 N.C. 262 , 90 S.E.2d 550, 1955 N.C. LEXIS 594 (1955).

Court May Not Change Effect of Guilty Plea by Increasing Punishment. —

Upon a plea of guilty of highway robbery the court could not change the effect of the plea by finding facts and thereby exposing defendant to greater punishment than the plea would support. State v. Stewart, 255 N.C. 571 , 122 S.E.2d 355, 1961 N.C. LEXIS 642 (1961).

Sentence Within Presumptive Range. —

Defendant’s argument that the conduct used to support his conviction for assault on a female under G.S. 14-33(c)(2) was also used to support his conviction for robbery under G.S. 14-87 was not appealable as of right under G.S. 15A-1444(a1) because both sentences were within the presumptive range under G.S. 15A-1340.17(c). State v. Potter, 198 N.C. App. 682, 680 S.E.2d 262, 2009 N.C. App. LEXIS 1343 (2009), abrogated in part, State v. Jones, 237 N.C. App. 526, 767 S.E.2d 341, 2014 N.C. App. LEXIS 1211 (2014).

Habitual Offender’s Sentence Within Presumptive Range. —

As defendant failed to show the court erred in sentencing defendant in the presumptive range as an habitual felon where the trial court made a brief comment regarding the sentencing range in terms of a failed plea bargain, the conviction and sentence of 145 to 183 months for robbery with a dangerous weapon and habitual felon status was affirmed. State v. McFadden, 181 N.C. App. 131, 638 S.E.2d 633, 2007 N.C. App. LEXIS 11 (2007).

“Great Monetary Value” Aggravating Factor Not Supported By Evidence. —

Defendant was entitled to a new sentencing hearing after his armed robbery conviction because a finding as an aggravating factor that the offense involved the actual taking of great monetary value was not supported by the evidence where $1,300 and $700 were taken from the victims; the amounts of $1,300 and $700 do not constitute great or extraordinary amounts such that either represents a sum of “great monetary value” within the aggravating factor list. State v. Pender, 176 N.C. App. 688, 627 S.E.2d 343, 2006 N.C. App. LEXIS 582 (2006).

XII.Double Jeopardy

Effect of Directed Verdict. —

Since the crime of accessory after the fact has its beginning after the principal offense has been committed, a directed verdict of not guilty of armed robbery does not decide the issue of whether the defendant joined the criminal scheme after the robbery was complete. State v. Cox, 37 N.C. App. 356, 246 S.E.2d 152, 1978 N.C. App. LEXIS 2747 (1978), cert. denied, 295 N.C. 649 , 248 S.E.2d 253, 1978 N.C. LEXIS 1103 (1978), cert. denied, 440 U.S. 930, 99 S. Ct. 1268, 59 L. Ed. 2d 487, 1979 U.S. LEXIS 974 (1979).

Trial Court Erred in Allowing Conviction. —

The trial court erred in allowing the jury to convict defendant of attempted armed robbery and of aiding and abetting in common-law robbery, a lesser included offense of armed robbery. State v. Barksdale, 16 N.C. App. 559, 192 S.E.2d 659, 1972 N.C. App. LEXIS 1759 (1972), cert. denied, 282 N.C. 673 , 194 S.E.2d 152, 1973 N.C. LEXIS 1140 (1973).

Prosecution as Accessory Before the Fact Not Barred by Insufficiency of Evidence to Support Armed Robbery Charge. —

Insufficiency of the evidence to support a conviction for robbery did not entitle defendant to his discharge, and the State properly tried defendant on the same indictment as an accessory before the fact to the robbery. State v. Wiggins, 21 N.C. App. 441, 204 S.E.2d 692, 1974 N.C. App. LEXIS 1830 (1974).

Prosecution for Armed Robbery Not Barred by Acquittal as Accessory. —

An acquittal of a charge of accessory after the fact of armed robbery will not support a plea of former jeopardy in a subsequent prosecution of the same defendant for armed robbery. State v. McIntosh, 260 N.C. 749 , 133 S.E.2d 652, 1963 N.C. LEXIS 797 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1345, 12 L. Ed. 2d 302, 1964 U.S. LEXIS 1350 (1964).

Where an indictment charged defendants with robbery with firearms from the companion of the person they were formerly charged with killing, even though the two offenses were committed at the same time, and evidence of guilt of one of the offenses was substantially the same as the evidence of guilt of the other, the acquittal or conviction for one offense would not bar a subsequent prosecution for the other. State v. Dills, 210 N.C. 178 , 185 S.E. 677, 1936 N.C. LEXIS 49 (1936).

Merger of Armed Robbery and Murder Charges. —

Where it appeared conclusively that armed robbery charges were proved as essential elements in the capital offense of murder in the first degree upon which the defendants were convicted, the robberies became a part of and were merged into the murder charges, and having been so used, the defendants could not again be charged, convicted and sentenced for these elements although the robberies constituted crimes within themselves. State v. Carroll, 282 N.C. 326 , 193 S.E.2d 85, 1972 N.C. LEXIS 960 (1972).

It was reversible error to impose sentences for a first-degree kidnapping and attempted robbery with a dangerous weapon offenses, both of which the jury was instructed could serve as underlying felonies to the charge of felony murder. State v. Oglesby, 174 N.C. App. 658, 622 S.E.2d 152, 2005 N.C. App. LEXIS 2624 (2005), aff'd in part, vacated in part, 361 N.C. 550 , 648 S.E.2d 819, 2007 N.C. LEXIS 812 (2007), dismissed, 278 N.C. App. 564, 862 S.E.2d 225, 2021- NCCOA-354, 2021 N.C. App. LEXIS 356 (2021).

A defendant may be convicted for both conspiracy to commit robbery and the commission of the same robbery without being subject to double jeopardy. State v. Wiggins, 21 N.C. App. 441, 204 S.E.2d 692, 1974 N.C. App. LEXIS 1830 (1974).

Charge of assault with a deadly weapon with intent to kill is not merged with armed robbery charge since “intent to kill” is not an element of armed robbery. State v. Alston, 80 N.C. App. 540, 342 S.E.2d 573, 1986 N.C. App. LEXIS 2185 , cert. denied, 317 N.C. 707 , 347 S.E.2d 441, 1986 N.C. LEXIS 2513 (1986).

Separate Judgments May Be Entered for Armed Robbery and Felonious Assault. —

When separate indictments for armed robbery and felonious assault based on separate features of one continuous course of conduct are tried together, and verdicts of guilty as charged are returned, these verdicts provide support for separate judgments. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971).

Convictions of Armed Robbery and Assault with a Deadly Weapon Arising from Same Conduct Will Not Support Separate Judgments. —

If a person is convicted simultaneously of armed robbery and of the lesser included offense of assault with a deadly weapon, and both offenses arise out of the same conduct, and separate judgments are pronounced, the judgment on the separate verdict of guilty of assault with a deadly weapon must be arrested because in such case, the armed robbery is accomplished by the assault with a deadly weapon and all essentials of this assault charge are essentials of the armed robbery charge. State v. Richardson, 279 N.C. 621 , 185 S.E.2d 102, 1971 N.C. LEXIS 906 (1971); State v. Lunsford, 26 N.C. App. 78, 214 S.E.2d 619, 1975 N.C. App. LEXIS 1978 (1975).

If a person is convicted simultaneously of armed robbery and the lesser included offense of assault with a deadly weapon, and both offenses arise out of the same conduct, separate judgments may not be pronounced. State v. Alexander, 284 N.C. 87 , 199 S.E.2d 450, 1973 N.C. LEXIS 779 (1973), cert. denied, 415 U.S. 927, 94 S. Ct. 1434, 39 L. Ed. 2d 484, 1974 U.S. LEXIS 1292 (1974).

Two offenses, G.S. 14-87(a) and G.S. 14-87.1 , were not fungible, as the crime of robbery with a dangerous weapon contained the additional element that the life of a person was endangered or threatened by the use of the dangerous weapon; thus, defendant failed to show the trial court erred in sentencing him in the presumptive range as a Class D felony habitual felon. State v. McFadden, 181 N.C. App. 131, 638 S.E.2d 633, 2007 N.C. App. LEXIS 11 (2007).

Multiple Convictions Proper Where Several Persons Each Threatened and Robbed. —

Where more than one person is present during a robbery wherein the life of each is threatened and property is taken from the person of each, the robber can be convicted of more than one armed robbery offense. State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982).

Where the proof showed, and the jury found, that defendant threatened each of two partners in a restaurant business and demanded money from each of them without limitation, there was no federal constitutional infirmity in convicting him of two attempted armed robberies. Ashford v. Edwards, 780 F.2d 405, 1985 U.S. App. LEXIS 25711 (4th Cir. 1985).

But Not Where Property Taken From Only One. —

Where two persons, both employees, are present during a robbery wherein the life of each is threatened incident to the theft only of property or money belonging to the employer, a single armed robbery is committed. State v. Beaty, 306 N.C. 491 , 293 S.E.2d 760, 1982 N.C. LEXIS 1485 (1982).

Conviction Under Federal and State Statutes. —

Defendant who was convicted for robbing a bank in this State with a dangerous weapon in violation of 18 U.S.C. § 2113(d) was not entitled to dismissal of an indictment in the Superior Court of Perquimans County for committing the same robbery with a dangerous weapon in violation of this section on double jeopardy grounds, as defendant was not being prosecuted for the “same offense” that he had been punished for in the federal court. State v. Myers, 82 N.C. App. 299, 346 S.E.2d 273, 1986 N.C. App. LEXIS 2467 (1986).

Robbery defendant’s double jeopardy rights were violated because the fact that the bank’s money was obtained from two tellers did not allow the State to indict defendant for two separate armed robberies. State v. Becton, 163 N.C. App. 592, 594 S.E.2d 143, 2004 N.C. App. LEXIS 419 (2004).

When defendant entered a guilty plea on a charge of armed robbery, former (d) of G.S. 14-87 required that an armed robbery prison term run consecutively with and commence at expiration of any other sentence being served by the offender; defendant’s concurrent sentence for this offense was illegal and should have been vacated. State v. Ellis, 361 N.C. 200 , 639 S.E.2d 425, 2007 N.C. LEXIS 38 (2007).

OPINIONS OF ATTORNEY GENERAL

Aggregated Sentences. — The post release supervision and parole commission cannot aggregate, pursuant to G.S. 15A-1354(b), the sentences imposed for armed robberies committed prior to October 1, 1994. See opinion of Attorney General to Sam F. Boyd, Executive Director Post-Release Supervision and Parole Commission, — N.C.A.G. — (Aug. 1, 1995).

Aggregated Sentences. — If an inmate is sentenced to consecutive armed robbery sentences at the same sentencing hearing, his sentence should be aggregated pursuant to G.S. 15A-1354(b). See opinion of Attorney General to Sam F. Boyd, Executive Director Post-Release Supervision and Parole Commission, — N.C.A.G. — (Aug. 1, 1995).

§ 14-87.1. Punishment for common-law robbery.

Robbery as defined at common law, other than robbery with a firearm or other dangerous weapon as defined by G.S. 14-87 , shall be punishable as a Class G felony.

History. 1979, c. 760, s. 5; 1993, c. 539, s. 1174; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For article on plea bargaining statutes and practices in North Carolina, see 59 N.C.L. Rev. 477 (1981).

CASE NOTES

No Substantial Evidence of Violence or Fear. —

Where the evidence tended to show that defendant took the victim’s watch by violence or fear, but there was no evidence that violence or fear induced her to give money to the defendant, the evidence tended to show that she gave the defendant her money in furtherance of her desire to have the watch back, the State failed to present substantial evidence that the victim was induced to part with her money as a result of violence or fear. State v. Parker, 322 N.C. 559 , 369 S.E.2d 596, 1988 N.C. LEXIS 467 (1988).

Use of Gun as Aggravating Factor Under § 15A-1340.4. —

Use of a deadly weapon has never been an element of proof required to establish common law robbery in North Carolina; consequently, the State’s evidence proving defendant’s use of the gun as an aggravating factor was not barred by G.S. 15A-1340.4(a). State v. Smaw, 96 N.C. App. 98, 384 S.E.2d 304, 1989 N.C. App. LEXIS 928 (1989).

Defendant Properly Required to Speak Words of Robber. —

Notwithstanding the fact that the witness stated that she did not need to hear defendant speak in order to identify him, the trial court correctly requested and required defendant to speak the words the robber spoke to demonstrate his voice to the witness and to the jury for purposes of voice identification. State v. Locklear, 117 N.C. App. 255, 450 S.E.2d 516, 1994 N.C. App. LEXIS 1198 (1994).

When Defendant May Be Convicted of Both Robbery and Another Offense. —

The trial court did not err in finding defendant guilty of both common law robbery and second-degree kidnapping in connection with the robbery of a pizza restaurant where there was sufficient evidence of restraint of an employee beyond what was necessary for the commission of common law robbery, to wit: defendant placed the employee in a choke hold, hit him in the side three times, wrestled with the employee on the floor, grabbed the employee again around the throat, pointed a gun at his head and marched the employee to the front of the pizza shop. State v. Muhammad, 146 N.C. App. 292, 552 S.E.2d 236, 2001 N.C. App. LEXIS 862 (2001).

Evidence Sufficient. —

State sufficiently proved appellant, a juvenile, committed every element of simple assault because the State presented evidence that (1) the victim was robbed of personal property by a group of boys while waiting for the victim’s mother after school, (2) the victim twice identified appellant in photographic lineups as an assaulter, (3) the victim testified at trial to remembering appellant patting the victim down, (4) another perpetrator testified to appellant having walked behind the victim, (5) the victim testified and wrote a statement giving a vivid description of the incident in which the boys confronted the victim, the other perpetrator walked behind the victim and pulled the victim down, and then the rest of the boys, including appellant, rushed in and beat up and robbed the victim. In re T.H., 218 N.C. App. 123, 721 S.E.2d 728, 2012 N.C. App. LEXIS 75 (2012).

Evidence of Identity Deemed Sufficient. —

Trial court properly denied defendant’s motion to dismiss robbery charges on grounds of insufficient evidence that defendant was the perpetrator, as he was “eyeball to eyeball” with the victim on two occasions, and asked for the same amount of money for the same reasons and gave the same story on both occasions. State v. Wilson, 158 N.C. App. 235, 580 S.E.2d 386, 2003 N.C. App. LEXIS 1045 (2003).

Evidence That Taking Was Accomplished By Fear Deemed Sufficient. —

In a robbery prosecution, the evidence was sufficient to show the taking was accomplished by fear, even though the victim ran after her assailant after he robbed her, as the victim testified she had been “absolutely scared,” in fear, frantic, and “scared to death” of defendant while defendant robbed her, and her employer testified that the victim was “in a terrible state,” was “scared to death,” and was acting unusual after the attack. State v. Wilson, 158 N.C. App. 235, 580 S.E.2d 386, 2003 N.C. App. LEXIS 1045 (2003).

Additional Element Not Required For Common Law Robbery. —

Two offenses, G.S. 14-87(a) and G.S. 14-87.1 , were not fungible, as the crime of robbery with a dangerous weapon contained the additional element that the life of a person was endangered or threatened by the use of the dangerous weapon; thus, defendant failed to show the trial court erred in sentencing him in the presumptive range as a Class D felony habitual felon. State v. McFadden, 181 N.C. App. 131, 638 S.E.2d 633, 2007 N.C. App. LEXIS 11 (2007).

§ 14-88. Train robbery.

If any person shall enter upon any locomotive engine or car on any railroad in this State, and by threats, the exhibition of deadly weapons or the discharge of any pistol or gun, in or near any such engine or car, shall induce or compel any person on such engine or car to submit and deliver up, or allow to be taken therefrom, or from him, anything of value, he shall be guilty of train robbery, and on conviction thereof shall be punished as a Class D felon.

History. 1895, c. 204, s. 2; Rev., s. 3765; C.S., s. 4266; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1175; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-89. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 71(5), effective October 1, 1994.

§ 14-89.1. Safecracking.

  1. A person is guilty of safecracking if he unlawfully opens, enters, or attempts to open or enter a safe or vault:
    1. By the use of explosives, drills, or tools; or
    2. Through the use of a stolen combination, key, electronic device, or other fraudulently acquired implement or means; or
    3. Through the use of a master key, duplicate key or device made or obtained in an unauthorized manner, stethoscope or other listening device, electronic device used for unauthorized entry in a safe or vault, or other surreptitious means; or
    4. By the use of any other safecracking implement or means.
  2. A person is also guilty of safecracking if he unlawfully removes from its premises a safe or vault for the purpose of stealing, tampering with, or ascertaining its contents.
  3. Safecracking shall be punishable as a Class I felony.

History. 1961, c. 653; 1973, c. 235, s. 1; 1977, c. 1106; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1176; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For survey of 1976 case law on criminal law, see 55 N.C.L. Rev. 976 (1977).

For survey of 1977 criminal law, see 56 N.C.L. Rev. 965 (1978).

CASE NOTES

Violation of this section is a felony. State v. Whaley, 262 N.C. 536 , 138 S.E.2d 138, 1964 N.C. LEXIS 682 (1964).

Safecracking is a separate and distinct crime, usually requiring special implements or explosives and particular skills. State v. Buie, 26 N.C. App. 151, 215 S.E.2d 401, 1975 N.C. App. LEXIS 1992 (1975).

Upon amending this section in 1977, the Legislature clearly intended felonious larceny and safecracking to remain separately punishable offenses; thus a defendant, at a single trial, may be convicted of both crimes as charged in indictments. State v. Strohauer, 84 N.C. App. 68, 351 S.E.2d 823, 1987 N.C. App. LEXIS 2464 (1987).

Safecracking Is Not Identical to Former Crime of Burglary with Explosives. —

Elements of the crimes of burglary with explosives and safecracking are not identical for offenses committed before October 1, 1977; the predecessor to this section provided as an essential element that the safe or vault be used for storing money or other valuables. State v. Pennell, 54 N.C. App. 252, 283 S.E.2d 397, 1981 N.C. App. LEXIS 2831 (1981).

Attempt and Completed Offense of Safecracking Are of Equal Dignity. —

This section makes the completed act of safecracking and attempted safecracking offenses of equal dignity. State v. Sanders, 280 N.C. 81 , 185 S.E.2d 158, 1971 N.C. LEXIS 1094 (1971).

This section makes an attempt to force open a safe or vault a crime of equal dignity with the completed offense. State v. Sanders, 280 N.C. 81 , 185 S.E.2d 158, 1971 N.C. LEXIS 1094 (1971).

Acts Constituting Attempted Safecracking. —

Removing the dial, sawing off the hinges, chiseling out a part of the concrete bottom of a small safe and smudging it with a blowtorch were held to go beyond mere preparation for safecracking and in law to constitute attempted safecracking. State v. Sanders, 280 N.C. 81 , 185 S.E.2d 158, 1971 N.C. LEXIS 1094 (1971).

Evidence sufficient to sustain conviction for safecracking. State v. Walker, 6 N.C. App. 447, 170 S.E.2d 627, 1969 N.C. App. LEXIS 1210 (1969).

Evidence sufficient to sustain conviction of defendant as abettor of offense of attempted safecracking. State v. Spears, 268 N.C. 303 , 150 S.E.2d 499, 1966 N.C. LEXIS 1192 (1966).

Evidence Insufficient For Conviction. —

Legislature did not intend “safe” or “vault” to include a locking side compartment in a particle board desk; evidence that defendant tried to break open the locking side compartment of a desk did not support his conviction for safecracking in violation of G.S. 14-89.1 . State v. Goodson, 178 N.C. App. 557, 631 S.E.2d 842, 2006 N.C. App. LEXIS 1565 (2006).

Failure to Allege “Feloniously”. —

An indictment for violation of this section which does not contain the word “feloniously” is fatally defective. State v. Whaley, 262 N.C. 536 , 138 S.E.2d 138, 1964 N.C. LEXIS 682 (1964).

An indictment which clearly states that a safe was opened “by the use of chopping tools,” follows the language of the safecracking statute, and is entirely proper. State v. Martin, 20 N.C. App. 477, 201 S.E.2d 540, 1974 N.C. App. LEXIS 2473 (1974).

Variance Between Indictment And Jury Instructions. —

Vacating of defendant’s conviction for safe-cracking was appropriate because the trial court erred by giving jury instructions that defendant acquired the combination to the safe by surreptitious means, which varied materially from the allegations contained in the indictment of defendant acquiring the combination to the safe by fraudulent means. State v. Ross, 249 N.C. App. 672, 792 S.E.2d 155, 2016 N.C. App. LEXIS 1028 (2016).

Sentence of 48-50 years under former section held cruel and unusual punishment. See Thacker v. Garrison, 445 F. Supp. 376, 1978 U.S. Dist. LEXIS 19623 (W.D.N.C. 1978).

Article 18. Embezzlement.

§ 14-90. Embezzlement of property received by virtue of office or employment.

  1. This section shall apply to any person:
    1. Exercising a public trust.
    2. Holding a public office.
    3. Who is a guardian, administrator, executor, trustee, or any receiver, or any other fiduciary, including, but not limited to, a settlement agent, as defined in G.S. 45A-3 .
    4. Who is an officer or agent of a corporation, or any agent, consignee, clerk, bailee or servant, except persons under the age of 16 years, of any person.
  2. Any person who shall:
    1. Embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, or
    2. Take, make away with or secrete, with intent to embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, any money, goods or other chattels, bank note, check or order for the payment of money issued by or drawn on any bank or other corporation, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United States or by any state, or any other valuable security whatsoever that (i) belongs to any other person or corporation, unincorporated association or organization or (ii) are closing funds as defined in G.S. 45A-3 , which shall have come into his possession or under his care, shall be guilty of a felony.
  3. If the value of the property described in subsection (b) of this section is one hundred thousand dollars ($100,000) or more, the person is guilty of a Class C felony. If the value of the property is less than one hundred thousand dollars ($100,000), the person is guilty of a Class H felony.

History. 21 Hen. VII, c. 7; 1871-2, c. 145, s. 2; Code, s. 1014; 1889, c. 226; 1891, c. 188; 1897, c. 31; Rev., s. 3406; 1919, c. 97, s. 25; C.S., s. 4268; 1931, c. 158; 1939, c. 1; 1941, c. 31; 1967, c. 819; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1997-443, s. 19.25(d); 2009-348, s. 1; 2009-570, s. 31.

Cross References.

As to larceny by servants or other employees, see G.S. 14-74 .

As to the embezzlement of funds of a corporation by its officers, see G.S. 14-254 .

As to description in indictment for embezzlement, see G.S. 15-150 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to embezzlement by a member of the State Sinking Fund Commission, see G.S. 142-40.

Effect of Amendments.

Session Laws 2009-348, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, rewrote the section.

Session Laws 2009-570, s. 31, effective August 28, 2009, substituted “G.S. 45A-3” for “G.S. 45-3” at the end of subdivision (a)(3).

Legal Periodicals.

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

CASE NOTES

Analysis

I.General Consideration

Origin and Purpose. —

Embezzlement was not a common-law offense. State v. Hill, 91 N.C. 561 , (1884). It was first made a criminal offense in England by statute, 21 Henry VIII, ch. 7, to punish the appropriation by servants of the property of their masters in violation of the trust and confidence reposed in them. 1 McLain Cr. Law, G.S. 621. It was enacted in consequence of a decision that a banker’s clerk, who received money from a customer and appropriated it to his own use, could not be convicted of larceny on the ground that the money had never been in the employer’s possession. Clark’s Cr. Law, p. 308. State v. McDonald, 133 N.C. 680 , 45 S.E. 582, 1903 N.C. LEXIS 117 (1903); State v. Griffin, 239 N.C. 41 , 79 S.E.2d 230, 1953 N.C. LEXIS 634 (1953).

The offense of embezzlement is exclusively statutory. State v. Blair, 227 N.C. 70 , 40 S.E.2d 460, 1946 N.C. LEXIS 346 (1946); State v. Thornton, 251 N.C. 658 , 111 S.E.2d 901, 1960 N.C. LEXIS 538 (1960); State v. Ellis, 33 N.C. App. 667, 236 S.E.2d 299, 1977 N.C. App. LEXIS 2321 , cert. denied, 293 N.C. 255 , 236 S.E.2d 708, 1977 N.C. LEXIS 904 (1977).

The crime of embezzlement, unknown to the common law, was created and is defined by statute. State v. Ross, 272 N.C. 67 , 157 S.E.2d 712, 1967 N.C. LEXIS 967 (1967); State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971); State v. Wooten, 18 N.C. App. 652, 197 S.E.2d 614, 1973 N.C. App. LEXIS 1968 , cert. denied, 283 N.C. 758 , 198 S.E.2d 728, 1973 N.C. LEXIS 1096 (1973); State v. Agnew, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 , cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124, 1978 U.S. LEXIS 2688 (1978).

Strict Construction. —

Statutes creating criminal offenses must be strictly construed. This rule has been applied with vigor in the construction of the embezzlement statute. State v. Ross, 272 N.C. 67 , 157 S.E.2d 712, 1967 N.C. LEXIS 967 (1967).

This section is a penal statute, creating a new offense, and cannot be extended by construction to persons not within the classes designated. State v. Eurell, 220 N.C. 519 , 17 S.E.2d 669, 1941 N.C. LEXIS 579 (1941).

The purpose of the 1939 amendment was to enlarge the scope of the embezzlement statute. State v. Ross, 272 N.C. 67 , 157 S.E.2d 712, 1967 N.C. LEXIS 967 (1967).

The words “or any other fiduciary” show clearly the General Assembly did not intend to restrict the application of the 1939 amendment to receivers. State v. Ross, 272 N.C. 67 , 157 S.E.2d 712, 1967 N.C. LEXIS 967 (1967).

Section 14-168.1 Compared. —

Section 14-168.1 is more limited in its scope with regard to bailees than this section; it appears to embrace a bailee “who fraudulently converts the same” to his own use, while this section covers the bailee who “shall embezzle or fraudulently or knowingly and willfully misapply or convert to his own use.” State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

There is no irreconcilable conflict between this section and G.S. 14-168.1 as they relate to bailees. State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

Section 14-168.1 does not remove bailees from this section or make embezzlement by a bailee a misdemeanor. State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

Section 14-254 Compared. —

The use of the word “abstract” in G.S. 14-254 differentiates it from this section. The latter applies to embezzlement and excepts offenders under 16 years of age. It is not necessary under G.S. 14-254 to allege that the defendant is more than 16 years old. State v. Switzer, 187 N.C. 88 , 121 S.E. 43, 1924 N.C. LEXIS 237 (1924).

A defendant charged with embezzlement must have intended to defraud his principal. By contrast, a defendant violates G.S. 14-254 if he does any of the acts prohibited by the statute with an intent to defraud or deceive any person. State v. Kornegay, 313 N.C. 1 , 326 S.E.2d 881, 1985 N.C. LEXIS 1511 (1985).

A defendant charged with embezzlement must have received the property he embezzled in the course of his employment and by virtue of his fiduciary relationship with his principal. Under G.S. 14-254 it is sufficient to show that a defendant as an agent or officer of a corporation abstracted or misapplied corporate funds. It need not be shown that he received such funds in the course of his employment. State v. Kornegay, 313 N.C. 1 , 326 S.E.2d 881, 1985 N.C. LEXIS 1511 (1985).

Jurisdiction Over Offense. —

Though defendant received money in Nevada and spent some of it in Arizona, under the “duty to account” doctrine, the embezzlement occurred when he failed to deliver the funds to his employer in North Carolina; therefore, the trial court had jurisdiction over the crime pursuant to G.S. 15A-134 . State v. Tucker, 227 N.C. App. 627, 743 S.E.2d 55, 2013 N.C. App. LEXIS 607 (2013).

Defendant May Be Charged But Not Convicted of Both Embezzlement and False Pretenses. —

While a defendant cannot be convicted of both embezzlement and false pretenses based upon a single transaction, the State may charge the defendant with both offenses. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

And State Need Not Elect Between Them. —

As to embezzlement and false pretenses charges, the Legislature intended to give full effect to North Carolina’s original common-law rule against requiring the State to elect between charges, if the felonies charged allegedly arose from the same transaction. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Where There Is Substantial Evidence of Each. —

Where there is substantial evidence tending to support both embezzlement and false pretenses arising from the same transaction, the State is not required to elect between the offenses. Indeed, if the evidence at trial conflicts, and some of it tends to show false pretenses but other evidence tends to show that the same transaction amounted to embezzlement, the trial court should submit both charges for the jury’s consideration; in doing so, however, the trial court must instruct the jury that it may convict the defendant only of one of the offenses or the other, but not of both. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

But Court May Only Submit Charge Supported by Evidence. —

If the evidence at trial tends only to show embezzlement or tends only to show false pretenses, the trial court must submit only the charge supported by evidence for the jury’s consideration. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Consolidated Conviction of Both Embezzlement and False Pretenses as Error. —

Separate convictions for mutually exclusive offenses, even though consolidated for a single judgment, have potentially severe adverse collateral consequences; therefore, consolidating the two convictions against defendant for embezzlement and obtaining property by false pretenses and entering a single judgment did not reduce the trial court’s error to harmless error. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Great Monetary Loss as Aggravating Factor. —

Since the ratio of the amounts embezzled to the threshold amount of the offense charged was a factor to be considered in determining whether the imposition of an aggravated sentence was proper, defendant’s embezzlement of $404,436 and $296,901 supported the imposition of an aggravated sentence, as they were sums of “great monetary value” when compared with threshold amount required for embezzlement of amounts over $100,000.00. State v. Cobb, 187 N.C. App. 295, 652 S.E.2d 699, 2007 N.C. App. LEXIS 2367 (2007).

False Accusation of Embezzlement Is Actionable Slander. —

The offense defined in this section is a felony, and a false accusation thereof is slander, actionable per se, and malice is presumed. Elmore v. Atlantic C.L.R.R., 189 N.C. 658 , 127 S.E. 710, 1925 N.C. LEXIS 377 (1925).

Dischargeability in Bankruptcy. —

The elements of embezzlement must be proved by clear and convincing evidence to establish a debt as nondischargeable, and a written agreement between the parties may be refuted by the actions of the parties. Great Am. Ins. Co. v. Storms, 28 B.R. 761, 1983 Bankr. LEXIS 6638 (Bankr. E.D.N.C. 1983).

II.Elements of the Offense

Embezzlement Defined. —

Embezzlement is simply a fraudulent breach of trust by misapplying the property entrusted to the defendant to the use either of himself or another, when done with a fraudulent intent. State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

Embezzlement and fraudulent conversion are not necessarily and strictly synonymous. State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

Charges of Embezzlement and False Pretenses Mutually Exclusive. —

Close scrutiny of the elements of embezzlement and obtaining property by false pretense shows that the two charges are mutually exclusive; in order to be found guilty of embezzlement, a defendant must obtain the property in question rightfully in the course of his employment by virtue of his fiduciary or agency relationship with his principal; the charge of obtaining property by false pretense requires the defendant to have wrongfully obtained the property at the outset. State v. Speckman, 92 N.C. App. 265, 374 S.E.2d 419, 1988 N.C. App. LEXIS 1051 (1988), rev'd, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Elements of Embezzlement. —

In order to convict a defendant of embezzlement, four distinct propositions of fact must be established: (1) that the defendant was the agent of the prosecutor, and (2) by the terms of his employment had received property of his principal; (3) that he received it in the course of his employment; and (4) knowing it was not his own, converted it to his own use. State v. Block, 245 N.C. 661 , 97 S.E.2d 243, 1957 N.C. LEXIS 642 (1957); State v. Helsabeck, 258 N.C. 107 , 128 S.E.2d 205, 1962 N.C. LEXIS 653 (1962); State v. Buzzelli, 11 N.C. App. 52, 180 S.E.2d 472, 1971 N.C. App. LEXIS 1449 , cert. denied, 279 N.C. 350 , 182 S.E.2d 583, 1971 N.C. LEXIS 795 (1971); State v. McCaskill, 47 N.C. App. 289, 267 S.E.2d 331, 1980 N.C. App. LEXIS 3094 (1980).

Embezzlement in violation of this section requires the establishment of four elements: (1) That the defendant was the agent of the prosecutor; (2) that by the terms of his employment he was to receive the property of his principal; (3) that he received the property in the course of his employment; and (4) that, knowing it was not his own, he converted it to his own use or fraudulently misapplied it. State v. Ellis, 33 N.C. App. 667, 236 S.E.2d 299, 1977 N.C. App. LEXIS 2321 , cert. denied, 293 N.C. 255 , 236 S.E.2d 708, 1977 N.C. LEXIS 904 (1977); State v. Seay, 44 N.C. App. 301, 260 S.E.2d 786, 1979 N.C. App. LEXIS 3248 (1979), cert. denied, 449 U.S. 826, 101 S. Ct. 89, 66 L. Ed. 2d 29, 1980 U.S. LEXIS 2707 (1980); State v. Seufert, 49 N.C. App. 524, 271 S.E.2d 756, 1980 N.C. App. LEXIS 3421 (1980), cert. denied, 301 N.C. 726 , 276 S.E.2d 289, 1981 N.C. LEXIS 1143 (1981); State v. Sutton, 53 N.C. App. 281, 280 S.E.2d 751, 1981 N.C. App. LEXIS 2595 (1981); State v. Tedder, 62 N.C. App. 12, 302 S.E.2d 318, 1983 N.C. App. LEXIS 2800 (1983).

In order to convict a defendant of embezzlement under this section, the State must prove three distinct elements: (1) that the defendant, being more than 16 years of age, acted as an agent or fiduciary for his principal, (2) that he received money or valuable property of his principal in the course of his employment and by virtue of his fiduciary relationship, and (3) that he fraudulently or knowingly and willfully misapplied or converted to his own use such money or valuable property of his principal which he had received in his fiduciary capacity. State v. Pate, 40 N.C. App. 580, 253 S.E.2d 266, 1979 N.C. App. LEXIS 2282 , cert. denied, 297 N.C. 616 , 257 S.E.2d 222, 1979 N.C. LEXIS 1527 (1979); State v. Earnest, 64 N.C. App. 162, 306 S.E.2d 560, 1983 N.C. App. LEXIS 3235 (1983); State v. Kornegay, 313 N.C. 1 , 326 S.E.2d 881, 1985 N.C. LEXIS 1511 (1985); State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379, 1987 N.C. App. LEXIS 2714 (1987); State v. Britt, 87 N.C. App. 152, 360 S.E.2d 291, 1987 N.C. App. LEXIS 3079 (1987).

This section makes criminal the fraudulent conversion of personal property by one occupying some position of trust or some fiduciary relationship. The person accused must have been entrusted with and received into his possession lawfully the personal property of another, and thereafter with felonious intent must have fraudulently converted the property to his own use. State v. Griffin, 239 N.C. 41 , 79 S.E.2d 230, 1953 N.C. LEXIS 634 (1953).

Defendant’s motion to dismiss the two embezzlement charges was properly denied because her employer entrusted her with both its funds and both key fobs, which were used to access the funds, even if the bank intended that employees have their own key fobs and that two employees participate in each transaction as a security measure; defendant had lawful possession or control of both her own and her supervisor’s key fobs; defendant kept both fobs during the course of her employment as the director of accounting from approximately 2008 to 2014, and she routinely wrote checks using both fobs; the employer entrusted the entire process to defendant; and defendant transferred $402,402.99 from the employer’s account into her personal account. State v. Grandy, 261 N.C. App. 691, 821 S.E.2d 243, 2018 N.C. App. LEXIS 1000 (2018).

Actual or Constructive Possession. —

The phrase “which shall have come into his possession or under his care” contemplates actual and constructive possession. Thus, the possession required by this section to make out a prima facie case of embezzlement may be actual or constructive possession. State v. Jackson, 57 N.C. App. 71, 291 S.E.2d 190, 1982 N.C. App. LEXIS 2619 (1982).

Having access to property differs from possessing property in a fiduciary capacity. Embezzlement is the fraudulent conversion of property by one who has lawfully acquired possession of it for the use and benefit of the owner, i.e., in a fiduciary capacity. State v. Keyes, 64 N.C. App. 529, 307 S.E.2d 820, 1983 N.C. App. LEXIS 3293 (1983).

Conversion to Own Use Need Not Be Shown. —

To embezzle is for an agent fraudulently to misapply the property of his principal; it is not necessary that the agent should convert it to his own use, that is, expend the money for his own benefit. State v. Foust, 114 N.C. 842 , 19 S.E. 275, 1894 N.C. LEXIS 156 (1894).

It is not necessary to show that the agent converted his principal’s property to his own use so long as it is shown that the agent fraudulently or knowingly and willfully misapplied it. State v. Pate, 40 N.C. App. 580, 253 S.E.2d 266, 1979 N.C. App. LEXIS 2282 , cert. denied, 297 N.C. 616 , 257 S.E.2d 222, 1979 N.C. LEXIS 1527 (1979); State v. Earnest, 64 N.C. App. 162, 306 S.E.2d 560, 1983 N.C. App. LEXIS 3235 (1983).

It is not necessary to show that the agent converted his principal’s property to the agent’s own use. It is sufficient to show that the agent fraudulently or knowingly and willfully misapplied it, or that he secreted it with intent to embezzle or fraudulently or knowingly and willfully misapply it. State v. Smithey, 15 N.C. App. 427, 190 S.E.2d 369, 1972 N.C. App. LEXIS 1932 (1972); State v. Bryant, 50 N.C. App. 139, 272 S.E.2d 916, 1980 N.C. App. LEXIS 3470 (1980).

In order to prove the third element of embezzlement under this section, it is not necessary to show the defendant converted the property to his own use, provided the State shows that defendant fraudulently or knowingly and willfully misapplied the property for purposes other than those for which he received it as agent or fiduciary. State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379, 1987 N.C. App. LEXIS 2714 (1987).

Fraudulent Intent Is an Essential Element. —

The intent to fraudulently or willfully misapply the principal’s property for purposes other than that for which it was received is an essential element of embezzlement that the State must prove beyond a reasonable doubt. State v. Pate, 40 N.C. App. 580, 253 S.E.2d 266, 1979 N.C. App. LEXIS 2282 , cert. denied, 297 N.C. 616 , 257 S.E.2d 222, 1979 N.C. LEXIS 1527 (1979).

The criminality of the act of embezzlement depends upon the intent, and therefore the State must show the intent to defraud beyond a reasonable doubt. State v. Thompson, 50 N.C. App. 484, 274 S.E.2d 381, 1981 N.C. App. LEXIS 2131 (1981).

Meaning of Fraudulent Intent. —

Fraudulent intent within the meaning of this section is the intent to willfully or corruptly use or misapply the property of another for purposes other than that for which it is held, and evidence tending to show that defendant, without authorization, applied funds of his employer to his own use, although defendant testified that he used the funds to pay a debt due him by his employer, is sufficient to be submitted to the jury on the question of fraudulent intent. State v. McLean, 209 N.C. 38 , 182 S.E. 700, 1935 N.C. LEXIS 15 (1935); State v. Howard, 222 N.C. 291 , 22 S.E.2d 917, 1942 N.C. LEXIS 85 (1942); State v. Agnew, 33 N.C. App. 496, 236 S.E.2d 287, 1977 N.C. App. LEXIS 2243 (1977), aff'd in part and rev'd in part, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 (1978); State v. Earnest, 64 N.C. App. 162, 306 S.E.2d 560, 1983 N.C. App. LEXIS 3235 (1983).

Fraudulent intent which constitutes a necessary element of embezzlement, within the meaning of this section, is the intent of the agent to embezzle or otherwise willfully and corruptly use or misapply the property of the principal or employer for purposes other than those for which the property is held. State v. Gentry, 228 N.C. 643 , 46 S.E.2d 863, 1948 N.C. LEXIS 314 , cert. denied, 335 U.S. 818, 69 S. Ct. 39, 93 L. Ed. 372, 1948 U.S. LEXIS 1780 (1948); State v. Smithey, 15 N.C. App. 427, 190 S.E.2d 369, 1972 N.C. App. LEXIS 1932 (1972).

The fraudulent intent required under this section is the intent to willfully or corruptly use or misapply the property of another for purposes other than those for which the agent or fiduciary received it in the course of his employment. State v. Pate, 40 N.C. App. 580, 253 S.E.2d 266, 1979 N.C. App. LEXIS 2282 , cert. denied, 297 N.C. 616 , 257 S.E.2d 222, 1979 N.C. LEXIS 1527 (1979).

Intent Must Be Proved Beyond a Reasonable Doubt. —

The conversion being admitted or shown, the burden is on the State to show beyond a reasonable doubt the intent to defraud. State v. McDonald, 133 N.C. 680 , 45 S.E. 582, 1903 N.C. LEXIS 117 (1903).

But Direct Proof of Intent Is Not Necessary. —

Fraudulent intent is a necessary element of the statutory offense of embezzlement and the State must prove such intent beyond a reasonable doubt, but direct proof is not necessary, it being sufficient if facts and circumstances are shown from which it may be reasonably inferred. State v. McLean, 209 N.C. 38 , 182 S.E. 700, 1935 N.C. LEXIS 15 (1935).

Fraudulent intent within the meaning of this section may be shown by direct evidence, or by evidence of facts and circumstances from which it may reasonably be inferred. State v. Helsabeck, 258 N.C. 107 , 128 S.E.2d 205, 1962 N.C. LEXIS 653 (1962); State v. Smithey, 15 N.C. App. 427, 190 S.E.2d 369, 1972 N.C. App. LEXIS 1932 (1972); State v. Pate, 40 N.C. App. 580, 253 S.E.2d 266, 1979 N.C. App. LEXIS 2282 , cert. denied, 297 N.C. 616 , 257 S.E.2d 222, 1979 N.C. LEXIS 1527 (1979); State v. Agnew, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 , cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124, 1978 U.S. LEXIS 2688 (1978).

Conversion Without Intent Is Insufficient. —

The mere converting or appropriating the property of another to one’s own use is not sufficient to constitute the crime of embezzlement, fraudulent intent in the act of such conversion or appropriation being an essential element of the offense. State v. Cahoon, 206 N.C. 388 , 174 S.E. 91, 1934 N.C. LEXIS 192 (1934).

Proof of conversion of principal’s property without proof of fraudulent intent will not sustain a conviction of embezzlement, and the State’s failure to show substantial evidence of fraudulent intent would be sufficient grounds to grant defendant’s motion to dismiss. State v. Britt, 87 N.C. App. 152, 360 S.E.2d 291, 1987 N.C. App. LEXIS 3079 (1987).

And the act of conversion does not raise the presumption of a felonious intent in a prosecution of an indictment for embezzlement. State v. Agnew, 33 N.C. App. 496, 236 S.E.2d 287, 1977 N.C. App. LEXIS 2243 (1977), aff'd in part and rev'd in part, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 (1978).

Intent to Repay Is No Defense. —

An intent to restore the property embezzled or a readiness and willingness to do so at a later date is not a defense to a prosecution under this section. State v. Summers, 141 N.C. 841 , 53 S.E. 856, 1906 N.C. LEXIS 171 (1906); State v. Agnew, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 , cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124, 1978 U.S. LEXIS 2688 (1978).

Trespass is not a necessary element. In embezzlement the possession of the property is acquired lawfully by virtue of the fiduciary relationship and thereafter the felonious intent and fraudulent conversion enter in to make the act of appropriation a crime. State v. Griffin, 239 N.C. 41 , 79 S.E.2d 230, 1953 N.C. LEXIS 634 (1953).

Nor Is Demand for Payment. —

A demand is not necessary to support a prosecution under this section, as it is not made a prerequisite to prosecution. State v. Blackley, 138 N.C. 620 , 50 S.E. 310, 1905 N.C. LEXIS 308 (1905).

It need not be alleged or proved that the property had been committed to the care of defendant, nor that any breach of confidence or trust, save that which grows out of the relation of owner and servant or agent, had occurred. State v. Wilson, 101 N.C. 730 , 7 S.E. 872, 1888 N.C. LEXIS 131 (1888).

Property of Prosecutor. —

The property alleged to have been embezzled must be the property of the prosecutor. State v. Barton, 125 N.C. 702 , 34 S.E. 553, 1899 N.C. LEXIS 290 (1899).

Goods Received Under Special Directions. —

Where goods come into the possession of a servant, out of the ordinary course of his employment, but in pursuance of special directions from the master to receive them, and the servant embezzles the same, he is indictable under this section. State v. Costin, 89 N.C. 511 , 1883 N.C. LEXIS 279 (1883).

Age of Defendant. —

The burden of showing that he is underage is on the defendant and the State is not called on to prove that he is past 16 years old, for this is a matter of defense and within the defendant’s knowledge. State v. Blackley, 138 N.C. 620 , 50 S.E. 310, 1905 N.C. LEXIS 308 (1905).

Conduct Satisfied Elements for Embezzlement. —

Debtor’s general assertions regarding her mental health were an insufficient basis for the court to ignore her own admissions and other evidence that showed she knowingly and willfully (if not fraudulently) misapplied the funds owed to plaintiff while in possession of these funds in her capacity as plaintiff’s agent. Accordingly, debtor’s conduct satisfied the elements for embezzlement under G.S. 14-90 as referenced in G.S. 1-538.2 . Vector Aerospace Engine Services-Atlantic v. Mason, 2017 Bankr. LEXIS 1188 (Bankr. W.D.N.C. May 1, 2017).

Evidence Held Sufficient. —

The mere making of false entries in books of account is not sufficient evidence of an act of conversion constituent to the crime of embezzlement, regardless of the defendant’s fraudulent intent at the time of making such a false entry. But depositing funds of another in one’s own account, together with the making of incorrect entries in books of account, and failing to turn the other’s funds over to him at a time when obligated to do so, is sufficient evidence of conversion. State v. Buzzelli, 11 N.C. App. 52, 180 S.E.2d 472, 1971 N.C. App. LEXIS 1449 , cert. denied, 279 N.C. 350 , 182 S.E.2d 583, 1971 N.C. LEXIS 795 (1971).

Evidence that defendant attorney, knowing money was not his, nonetheless deposited client’s check into his personal account and subsequently failed to turn the funds over to client was sufficient to show embezzlement. State v. Melvin, 86 N.C. App. 291, 357 S.E.2d 379, 1987 N.C. App. LEXIS 2714 (1987).

Where the record supported conclusion that defendant was victim’s attorney, received money from the victim rightfully in the course of his employment, and it was clear that the victim never obtained a share in a partnership for which the money was intended, there was sufficient evidence to support the inference that defendant either fraudulently or knowingly and willfully misapplied his client’s funds or that he secreted them with the intent to embezzle. State v. Speckman, 92 N.C. App. 265, 374 S.E.2d 419, 1988 N.C. App. LEXIS 1051 (1988), rev'd, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Evidence held insufficient to show fraudulent intent. State v. Britt, 87 N.C. App. 152, 360 S.E.2d 291, 1987 N.C. App. LEXIS 3079 (1987).

Defendant could not be convicted of aiding and abetting embezzlement where defendant’s spouse obtained blank checks from the family business and used defendant’s parent’s signature stamp to forge nearly one-half million dollars worth of checks, all without permission, because the spouse had not received the blank checks that were forged in the course of employment or by the terms of employment and it followed that because the State had failed to prove that the spouse was guilty of embezzlement, without proof that an embezzlement occurred. State v. Weaver, 160 N.C. App. 613, 586 S.E.2d 841, 2003 N.C. App. LEXIS 1931 (2003), aff'd, 359 N.C. 246 , 607 S.E.2d 599, 2005 N.C. LEXIS 30 (2005).

Lawful possession or control element of the crime of embezzlement was not satisfied when defendant’s wife, an administrative employee, took a corporate signature stamp without permission and wrote unauthorized corporate checks, thereby misappropriating funds from her employer; such evidence supported a finding of larceny rather than embezzlement. State v. Weaver, 359 N.C. 246 , 607 S.E.2d 599, 2005 N.C. LEXIS 30 (2005).

Evidence was insufficient to support an embezzlement conviction where defendant opened a post office box and bank accounts in the name of her employers without authorization, directed checks to the post office box, deposited the checks into the unauthorized accounts, and wrote checks to herself from those accounts; defendant never took lawful possession of the incoming checks, nor was she entrusted with the checks by virtue of a fiduciary capacity, but, instead, acquired the incoming checks through misrepresentation. State v. Palmer, 175 N.C. App. 208, 622 S.E.2d 676, 2005 N.C. App. LEXIS 2712 (2005).

III.Who May Be Guilty of Embezzlement

Fiduciary Defined. —

The trial court in a prosecution for embezzlement properly defined a fiduciary as “a person having a duty created by his undertaking to act primarily for another’s benefit.” State v. Seay, 44 N.C. App. 301, 260 S.E.2d 786, 1979 N.C. App. LEXIS 3248 (1979), cert. denied, 449 U.S. 826, 101 S. Ct. 89, 66 L. Ed. 2d 29, 1980 U.S. LEXIS 2707 (1980).

Defendant Need Not Be Corporate Agent or Fiduciary. —

A defendant charged with embezzlement need not be an agent or fiduciary of a corporation. State v. Kornegay, 313 N.C. 1 , 326 S.E.2d 881, 1985 N.C. LEXIS 1511 (1985).

Fiduciary Relationship Shown. —

Defendant’s promises, promotions, receipt and disbursement of money, and his positions in the condominium development corporations placed him in a fiduciary relationship with all of the investors and potential purchasers of condominium properties; the evidence was sufficient that defendant misapplied or converted funds of investors and potential purchasers. State v. Rupe, 109 N.C. App. 601, 428 S.E.2d 480, 1993 N.C. App. LEXIS 364 (1993).

Bailee. —

The fact that Public Laws 1941, ch. 31, amended this section by adding “bailee” to the classes of persons specified constituted a legislative declaration that theretofore a bailee was not included in the definition of classes of persons made by the statute. State v. Eurell, 220 N.C. 519 , 17 S.E.2d 669, 1941 N.C. LEXIS 579 (1941).

A contractor is not an officer, clerk or servant within the meaning of this section. State v. Barton, 125 N.C. 702 , 34 S.E. 553, 1899 N.C. LEXIS 290 (1899).

Vendor. —

This section does not embrace a vendor in an executory contract of purchase and sale. State v. Blair, 227 N.C. 70 , 40 S.E.2d 460, 1946 N.C. LEXIS 346 (1946); State v. Thornton, 251 N.C. 658 , 111 S.E.2d 901, 1960 N.C. LEXIS 538 (1960).

The relation of lessor and lessee is not embraced by this section. State v. Keith, 126 N.C. 1114 , 36 S.E. 169, 1900 N.C. LEXIS 371 (1900).

Debtor and Creditor. —

Where the relationship between the parties is that of debtor and creditor and not that of employee and employer, the debtor cannot be guilty of embezzlement of any funds due on the account. Gray v. Bennett, 250 N.C. 707 , 110 S.E.2d 324, 1959 N.C. LEXIS 494 (1959).

Where the parties’ conduct indicates a debtor-creditor relation, funds that come into the hands of the debtor belong to him, and his subsequent use of them is not embezzlement. Great Am. Ins. Co. v. Storms, 28 B.R. 761, 1983 Bankr. LEXIS 6638 (Bankr. E.D.N.C. 1983).

Clerks of the Superior Courts. —

This section does not apply to clerks of the superior courts and like officers who would seem to fall within the terms of G.S. 14-92 . State v. Connelly, 104 N.C. 794 , 10 S.E. 469, 1889 N.C. LEXIS 280 (1889).

Person Commissioned by Clerk of Superior Court. —

One who, under authority of and subject to the orders of the clerk of the superior court, is commissioned to collect, receive and handle money, and to disburse it to those entitled thereto under the law, has substantially the same status as a court-appointed receiver. Such commissioner is a fiduciary in the same sense as a receiver is a fiduciary. State v. Ross, 272 N.C. 67 , 157 S.E.2d 712, 1967 N.C. LEXIS 967 (1967).

Commissioner in Equity. —

A commissioner appointed by a court of equity to sell land is empowered to do one specific act, viz: to sell the land and distribute the proceeds to the parties entitled thereto; immediately upon his appointment he ceases to be an attorney or agent for either party; and where indictment charged the defendant with embezzlement of funds as commissioner, the defendant could not be convicted as agent or attorney. State v. Ray, 207 N.C. 642 , 178 S.E. 224, 1935 N.C. LEXIS 230 (1935).

As a local alcoholic beverage control board employee, defendant should have been charged with embezzlement under G.S. 14-90 ; a trial court lacked jurisdiction to hear the case where defendant was charged with violation of G.S. 14-92 . State v. Jones, 172 N.C. App. 161, 615 S.E.2d 896, 2005 N.C. App. LEXIS 1438 (2005).

Partner. —

Under the common law a partner cannot be prosecuted for embezzlement. State v. Brown, 81 N.C. App. 281, 343 S.E.2d 553, 1986 N.C. App. LEXIS 2288 (1986).

IV.Indictment

Necessity of Alleging Ownership. —

In an indictment for embezzlement it is necessary to allege ownership of the property in a person, corporation, or other legal entity able to own property. State v. Ellis, 33 N.C. App. 667, 236 S.E.2d 299, 1977 N.C. App. LEXIS 2321 , cert. denied, 293 N.C. 255 , 236 S.E.2d 708, 1977 N.C. LEXIS 904 (1977).

The common-law offense of larceny contemplates that the property taken must belong to or be in the possession of another, and the statutory offense of embezzlement provides that the misappropriated property must belong to “any other person or corporation, unincorporated association, or organization.” In view of the breadth of the offenses, the warrant or bill of indictment charging these offenses must allege the ownership of the property either in a natural person or a legal entity capable of owning property. State v. Wooten, 18 N.C. App. 652, 197 S.E.2d 614, 1973 N.C. App. LEXIS 1968 , cert. denied, 283 N.C. 758 , 198 S.E.2d 728, 1973 N.C. LEXIS 1096 (1973).

Where the owner of embezzled property is an association, partnership, corporation, or other firm or organization, there must be allegations showing such organization to be a legal entity capable of owning property as such, or the individuals comprising the same and owing the property should be set out as owners. State v. Thornton, 251 N.C. 658 , 111 S.E.2d 901, 1960 N.C. LEXIS 538 (1960).

The name of the person from whom the money was received need not be stated. State v. Lanier, 88 N.C. 658 , 1883 N.C. LEXIS 147 (1883); State v. Lanier, 89 N.C. 517 , 1883 N.C. LEXIS 280 (1883).

Name of Corporation. —

In an indictment for embezzlement, where the property belongs to a corporation, the name of the corporation should be given, and the fact that it is a corporation should be stated, unless the name itself imports a corporation. State v. Ellis, 33 N.C. App. 667, 236 S.E.2d 299, 1977 N.C. App. LEXIS 2321 , cert. denied, 293 N.C. 255 , 236 S.E.2d 708, 1977 N.C. LEXIS 904 (1977).

Age of Defendant. —

The averment that the defendant is neither an apprentice nor under the age of 16 years is a substantial compliance with the statute. State v. Lanier, 88 N.C. 658 , 1883 N.C. LEXIS 147 (1883); State v. Lanier, 89 N.C. 517 , 1883 N.C. LEXIS 280 (1883).

It is unnecessary to determine whether an indictment could be sustained under other of the cognate statutes, G.S. 14-91 through 14-99, where an indictment of a bank receiver for embezzlement is drawn under this section. State v. Whitehurst, 212 N.C. 300 , 193 S.E. 657, 1937 N.C. LEXIS 297 (1937).

Fatal Variance Where Only Violation of G.S. 14-92 Charged. —

The crime of embezzlement rests upon statute alone, and conviction thereof under an indictment drawn under this section, when the evidence tends only to show a violation of G.S. 14-92 , is erroneous upon the ground that the proof is at variance with the offense charged in the bill. State v. Grace, 196 N.C. 280 , 145 S.E. 399, 1928 N.C. LEXIS 349 (1928).

Indictment Sufficient Under both This Section and G.S. 14-92 . —

There was no merit to defendant city clerk’s contention that her convictions for embezzlement from the city were invalid in that she was convicted for violations of this section, which is a private sector embezzlement statute, when she should have been tried for violations of G.S. 14-92 , a statute applicable to public officials, since the indictments against defendant did not refer specifically to any statute and were sufficient to charge defendant with violations of either this section or G.S. 14-92 , and since the sentence imposed for each offense of which defendant was convicted was within the maximum permissible under either statute. State v. Thompson, 50 N.C. App. 484, 274 S.E.2d 381, 1981 N.C. App. LEXIS 2131 (1981).

Indictment Under This Section Rather Than § 14-168.1. —

It was proper for the State to elect to indict the defendant for felonious embezzlement under this section, the broader statute, rather than to indict him under G.S. 14-168.1 , the narrower statute. State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

Indictment Charging False Pretenses Will Support Embezzlement Conviction. —

Section 14-100 clearly provides that a defendant may be convicted of embezzlement upon an indictment charging him with false pretenses. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Dismissal on Unsworn Representations. —

The court erred in allowing motion to dismiss indictments which on their face sufficiently alleged embezzlement, where even assuming, arguendo, that the court could consider extraneous evidence in ruling on the motion, only the unsworn representations of defense counsel at the hearing on defendant’s motion, to the effect that defendant was a partner in the victimized partnership, were before the court. State v. Brown, 81 N.C. App. 281, 343 S.E.2d 553, 1986 N.C. App. LEXIS 2288 (1986).

Amendment of Indictment Permitted. —

As the terms “employee” and “agent” were essentially interchangeable for purposes of the embezzlement statute, the amendment of an indictment that alleged defendant was an “employee” of a company to allege that he was an “employee or agent” of the company did not violate G.S. 15A-923(e) by substantially altering the crime charged. State v. Tucker, 227 N.C. App. 627, 743 S.E.2d 55, 2013 N.C. App. LEXIS 607 (2013).

Substantial Alteration Prohibited. —

Deletion by trial court of the words, “Mike Frost, president” from indictments charging defendant with embezzlement to change ownership from Mike Frost, an individual, to Petroleum World, Inc., a corporation, was a substantial alteration of the indictment prohibited by G.S. 15A-923(e). State v. Hughes, 118 N.C. App. 573, 455 S.E.2d 912, 1995 N.C. App. LEXIS 298 , writ denied, 340 N.C. 570 , 460 S.E.2d 326, 1995 N.C. LEXIS 427 (1995).

Indictment Held Sufficient. —

Allegations contained in defendant’s indictment that she “unlawfully, willfully and feloniously did embezzle” could fairly be read to allege that she knowingly and willfully embezzled from her employer and thus, there was nothing vague or insufficiently particular about the allegations contained in the indictment and it adequately apprised defendant as to the charges facing her and did not prejudice her ability to prepare a defense. State v. Booker, 262 N.C. App. 290, 821 S.E.2d 877, 2018 N.C. App. LEXIS 1084 (2018).

V.Evidence

Evidence Sufficient to Survive Motion to Dismiss. —

Trial court did not err when it denied defendant’s motion to dismiss the embezzlement charges against defendant because the State of North Carolina presented substantial evidence of defendant’s agency or fiduciary relationship with the vendors who contracted with defendant sufficient to survive a motion to dismiss on that element. Additionally, the State also presented evidence sufficient to survive the motion to dismiss on the issue of intent as the State presented evidence that defendant received money on behalf of the vendors, did not pay them when it was due, and was experiencing personal financial problems. State v. Newell, 189 N.C. App. 138, 657 S.E.2d 400, 2008 N.C. App. LEXIS 427 (2008).

Evidence that defendant made numerous food purchases that were questionable because they consisted of items that would not be purchased by or served at school system events and that defendant had forged her supervisors’ signatures and/or changed budget code information on credit card authorization forms was sufficient for the embezzlement charge to survive a motion to dismiss. State v. Parker, 233 N.C. App. 577, 756 S.E.2d 122, 2014 N.C. App. LEXIS 364 (2014).

Embezzlement claim was not dismissed because the allegations showed that debtor acted as plaintiff’s agent in connection with the 2004 Subscription Agreement and the applicable law discussing the parameters of an embezzlement claim indicated that those parameters were extremely murky. Porters Neck Ltd., LLC v. Porters Neck Country Club Inc. (In re Porters Neck Country Club, Inc.), 628 B.R. 495, 2021 Bankr. LEXIS 387 (Bankr. E.D.N.C. 2021).

Sufficient evidence supported defendant’s conviction for embezzlement of $123,367.09 because he was acting as the victim’s fiduciary when he gained access to her money. A fiduciary relationship existed prior to the point when he came into possession of the funds in the victim’s bank accounts. The wrongful conversion of $123,367.09 occurred while he acted as a fiduciary and, even though they held joint accounts, defendant was not entitled to convert the money to his use without the victim’s permission. State v. Steele, 868 S.E.2d 876, 2022- NCCOA-39, 2022 N.C. App. LEXIS 28 (N.C. Ct. App. 2022).

Evidence of Motive. —

Evidence which tended to show that defendant was living far and away above the standard to be expected of one earning $265.00 a week was relevant to establish motive under this section. State v. Sutton, 53 N.C. App. 281, 280 S.E.2d 751, 1981 N.C. App. LEXIS 2595 (1981).

Evidence of Defendant’s Spending and Deposits. —

Evidence that during a period in which a defendant had allegedly been guilty of embezzling money from his employer the defendant spent money considerably in excess of his known income or made large bank deposits has been held admissible. State v. Buzzelli, 11 N.C. App. 52, 180 S.E.2d 472, 1971 N.C. App. LEXIS 1449 , cert. denied, 279 N.C. 350 , 182 S.E.2d 583, 1971 N.C. LEXIS 795 (1971).

Testimony as to Signatures. —

The trial court in an embezzlement case properly allowed a State’s witness to testify that the signature on checks introduced as State’s exhibits was that of defendant, where the witness testified that he had seen defendant write her signature on thousands of occasions. State v. Thompson, 50 N.C. App. 484, 274 S.E.2d 381, 1981 N.C. App. LEXIS 2131 (1981).

Evidence Held Sufficient. —

Defendant’s conviction for embezzlement was affirmed because defendant was an agent of the company, defendant was given complete access to the corporation’s accounts, and defendant was also able to write checks on behalf of the corporation and to delegate where the corporation’s money went. State v. Smalley, 220 N.C. App. 142, 725 S.E.2d 68, 2012 N.C. App. LEXIS 516 (2012).

Evidence Held Insufficient. —

Where the evidence tended to show witness paid defendant the sum of $363.00 while the amount due was actually $353.41, a difference of $9.59, and in his capacity of magistrate, defendant was statutorily permitted only to collect the amount of the worthless check, and any related fees or court costs. Any amount overpaid by witness rightfully remained his property and subject to return upon being claimed. Thus, the $9.59 never “belonged,” to the State as defendant’s principal, thereby rendering nonexistent an essential element of the crime charged. State v. Rhome, 120 N.C. App. 278, 462 S.E.2d 656, 1995 N.C. App. LEXIS 823 (1995).

Knowing and Willful Misapplication of Funds. —

North Carolina State Bar presented substantial evidence that the attorney knowingly and willfully misapplied a client’s settlement money for other purposes; for months the attorney was aware that not only was the attorney’s trust account out of balance, but it was woefully short of the necessary funds. N.C. State Bar v. Leonard, 178 N.C. App. 432, 632 S.E.2d 183, 2006 N.C. App. LEXIS 1573 (2006).

VI.Instructions

Reference to Crime of Larceny. —

The trial court in an embezzlement case did not err in referring in the instructions to the crime of larceny where the court was simply explaining the crime of embezzlement by contrasting it with the crime of larceny. State v. Thompson, 50 N.C. App. 484, 274 S.E.2d 381, 1981 N.C. App. LEXIS 2131 (1981).

Faulty Instructions Held Reversible Error. —

Trial court committed reversible error by essentially instructing the jury that the receipts of vendors who contracted with defendant could not be commingled with other corporate funds as a matter of law. State v. Newell, 189 N.C. App. 138, 657 S.E.2d 400, 2008 N.C. App. LEXIS 427 (2008).

§ 14-91. Embezzlement of State property by public officers and employees.

If any officer, agent, or employee of the State, or other person having or holding in trust for the same any bonds issued by the State, or any security, or other property and effects of the same, shall embezzle or knowingly and willfully misapply or convert the same to his own use, or otherwise willfully or corruptly abuse such trust, such offender and all persons knowingly and willfully aiding and abetting or otherwise assisting therein shall be guilty of a felony. If the value of the property is one hundred thousand dollars ($100,000) or more, a violation of this section is a Class C felony. If the value of the property is less than one hundred thousand dollars ($100,000), a violation of this section is a Class F felony.

History. 1874-5, c. 52; Code, s. 1015; Rev., s. 3407; C.S., s. 4269; 1979, c. 716; c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1997-443, s. 19.25(e).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

The word “property” is sufficiently all inclusive to embrace money, goods, chattels, evidences of debt and things in action. State v. Ward, 222 N.C. 316 , 22 S.E.2d 922, 1942 N.C. LEXIS 89 (1942).

The fraudulent intent which constitutes a necessary element of the crime of embezzlement, within this section, is the intent to embezzle or otherwise willfully and corruptly use or misapply the property of the principal or employer for purposes other than those for which the property is held. State v. Howard, 222 N.C. 291 , 22 S.E.2d 917, 1942 N.C. LEXIS 85 (1942).

Where defendant’s alleged scheme did not misapply State funds he already possessed or could otherwise control, but instead deceived those with such control into paying those funds to his co-participants in the scheme, defendant did not misapply funds which he “held in trust” as required by a strict construction of this statute. State v. Bonner, 91 N.C. App. 424, 371 S.E.2d 773, 1988 N.C. App. LEXIS 875 (1988).

Collected Taxes Held in Trust. —

A retailer holds sales and use taxes collected from purchasers in trust for the State within the meaning of this section. State v. Kennedy, 130 N.C. App. 399, 503 S.E.2d 133, 1998 N.C. App. LEXIS 938 (1998), aff'd, 350 N.C. 87 , 511 S.E.2d 305, 1999 N.C. LEXIS 43 (1999).

Sufficiency of evidence. —

Defendant’s conviction for embezzlement of North Carolina property of a value of $100,000 or more by aiding and abetting was affirmed because the State presented substantial evidence that defendant committed the crime by testimony that defendant was the only person authorized to make withdrawals from the corporate account from which the missing funds that were withheld from employee wages for remittance to the North Carolina Department of Revenue were deposited. State v. Ross, 173 N.C. App. 569, 620 S.E.2d 33, 2005 N.C. App. LEXIS 2084 (2005), aff'd, 360 N.C. 355 , 625 S.E.2d 779, 2006 N.C. LEXIS 14 (2006).

§ 14-92. Embezzlement of funds by public officers and trustees.

If an officer, agent, or employee of an entity listed below, or a person having or holding money or property in trust for one of the listed entities, shall embezzle or otherwise willfully and corruptly use or misapply the same for any purpose other than that for which such moneys or property is held, such person shall be guilty of a felony. If the value of the money or property is one hundred thousand dollars ($100,000) or more, the person is guilty of a Class C felony. If the value of the money or property is less than one hundred thousand dollars ($100,000), the person is guilty of a Class F felony. If any clerk of the superior court or any sheriff, treasurer, register of deeds or other public officer of any county, unit or agency of local government, or local board of education shall embezzle or wrongfully convert to his own use, or corruptly use, or shall misapply for any purpose other than that for which the same are held, or shall fail to pay over and deliver to the proper persons entitled to receive the same when lawfully required so to do, any moneys, funds, securities or other property which such officer shall have received by virtue or color of his office in trust for any person or corporation, such officer shall be guilty of a felony. If the value of the money, funds, securities, or other property is one hundred thousand dollars ($100,000) or more, the person is guilty of a Class C felony. If the value of the money, funds, securities, or other property is less than one hundred thousand dollars ($100,000), the person is guilty of a Class F felony. The provisions of this section shall apply to all persons who shall go out of office and fail or neglect to account to or deliver over to their successors in office or other persons lawfully entitled to receive the same all such moneys, funds and securities or property aforesaid. The following entities are protected by this section: a county, a city or other unit or agency of local government, a local board of education, and a penal, charitable, religious, or educational institution.

History. 1876-7, c. 47; Code, s. 1016; 1891, c. 241; Rev., s. 3408; C.S., s. 4270; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1985, c. 509, s. 3; 1993, c. 539, s. 1177; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(f).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For survey of 1981 criminal law, see 60 N.C.L. Rev. 1289 (1982).

CASE NOTES

Section 14-231 Compared. —

See State v. Windley, 178 N.C. 670 , 100 S.E. 116, 1919 N.C. LEXIS 533 (1919).

Section Inapplicable to Private Property. —

This section does not embrace the unlawful appropriation of the property of private individuals. State v. Connelly, 104 N.C. 794 , 10 S.E. 469, 1889 N.C. LEXIS 280 (1889).

Trial court lacked jurisdiction to hear the case where defendant, a local alcoholic beverage control board employee, was charged with violation of G.S. 14-92 ; defendant should have been charged with embezzlement under G.S. 14-90 . State v. Jones, 172 N.C. App. 161, 615 S.E.2d 896, 2005 N.C. App. LEXIS 1438 (2005).

Collected Taxes Held in Trust. —

A retailer holds sales and use taxes collected from purchasers in trust for the county within the meaning of this section. State v. Kennedy, 130 N.C. App. 399, 503 S.E.2d 133, 1998 N.C. App. LEXIS 938 (1998), aff'd, 350 N.C. 87 , 511 S.E.2d 305, 1999 N.C. LEXIS 43 (1999).

Meaning of “Willfully and Corruptly”. —

The words “willfully” and “corruptly,” as they relate to misapplication of funds under this section, have been defined as “[d]one with an unlawful intent,” and “the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.” State v. Agnew, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 , cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124, 1978 U.S. LEXIS 2688 (1978).

In a charge upon the trial of county officials for the misapplication of county funds under the provisions of this section, the definition that “wilfully and corruptly” meant with “bad faith and without regard to the rights of others and in the interest of such parties for whom the funds were held” was not erroneous under the circumstances of the case. State v. Shipman, 202 N.C. 518 , 163 S.E. 657, 1932 N.C. LEXIS 151 (1932).

Fraudulent Intent Is Necessary. —

Unless fraudulent intent is proved, the offense under this section is not proved. State v. Agnew, 33 N.C. App. 496, 236 S.E.2d 287, 1977 N.C. App. LEXIS 2243 (1977), aff'd in part and rev'd in part, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 (1978).

Fraudulent Intent Can Be Inferred. —

The fraudulent intent required in the charge of embezzlement can be inferred from the facts proven. It is not necessary that there be direct evidence of such intent. State v. Barbour, 43 N.C. App. 143, 258 S.E.2d 475, 1979 N.C. App. LEXIS 3039 (1979).

Evidence that defendant city clerk wrote salary checks to herself in excess of the amount authorized was sufficient to permit a reasonable inference that defendant fraudulently or knowingly and willfully misapplied the city’s funds to her own use without authorization so as to support her conviction of embezzlement. State v. Thompson, 50 N.C. App. 484, 274 S.E.2d 381, 1981 N.C. App. LEXIS 2131 (1981).

The State need not prove embezzlement or misapplication of the entire sum alleged in the indictment. State v. Agnew, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 , cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124, 1978 U.S. LEXIS 2688 (1978).

Nor Exclusive Possession. —

It is not necessary for the State to prove that defendant had exclusive possession of the funds to sustain a charge of embezzlement under this section. More than one person can have possession of the same property at the same time. State v. Barbour, 43 N.C. App. 143, 258 S.E.2d 475, 1979 N.C. App. LEXIS 3039 (1979).

As Related to Forfeiture of Retirement Benefits. —

By pleading guilty, respondent admitted to embezzling public funds entrusted to her while serving as the register of deeds; G.S. 128-38.4 A provides a disjunctive “or” and enables it to be invoked through state or federal procedure, which is provided for by the express elements of G.S. 14-92 , and there are scenarios where an aggravating factor is not found or is omitted in a plea bargain. A valid forfeiture of future accruals occurred. N.C. Dep't of State Treasurer v. Riddick, 274 N.C. App. 183, 852 S.E.2d 376, 2020 N.C. App. LEXIS 776 (2020).

To remain eligible for retirement benefits, respondent agreed and bore a duty to faithfully execute the duties of her office and to account for all public funds entrusted to her, which she violated by pleading guilty to embezzlement; G.S. 128-38.4 A does not unconstitutionally impair contracts under the Federal or State Constitutions. N.C. Dep't of State Treasurer v. Riddick, 274 N.C. App. 183, 852 S.E.2d 376, 2020 N.C. App. LEXIS 776 (2020).

Knowledge of Supervisory Board No Excuse. —

The fact that a supervisory board has knowledge of a subordinate’s unlawful use of public moneys, does not excuse or justify one who knowingly misapplies such funds unlawfully. State v. Agnew, 294 N.C. 382 , 241 S.E.2d 684, 1978 N.C. LEXIS 1256 , cert. denied, 439 U.S. 830, 99 S. Ct. 107, 58 L. Ed. 2d 124, 1978 U.S. LEXIS 2688 (1978).

Sufficiency of Indictment Under Both This Section and § 14-90. —

There was no merit to defendant city clerk’s contention that her convictions for embezzlement from the city were invalid in that she was convicted for violations of G.S. 14-90 , which is a private sector embezzlement statute, when she should have been tried for violations of this section, a statute applicable to public officials, since the indictments against defendant did not refer specifically to any statute, they were sufficient to charge defendant with violations of either G.S. 14-90 or this section, and the sentence imposed for each offense of which defendant was convicted was within the maximum permissible under either statute. State v. Thompson, 50 N.C. App. 484, 274 S.E.2d 381, 1981 N.C. App. LEXIS 2131 (1981).

Testimony as to Signature. —

The trial court in an embezzlement case properly allowed a State’s witness to testify that the signature on checks introduced as State’s exhibits was that of defendant where the witness testified that he had seen defendant write her signature on thousands of occasions. State v. Thompson, 50 N.C. App. 484, 274 S.E.2d 381, 1981 N.C. App. LEXIS 2131 (1981).

Instructions — Use of Words “Fiduciary Person”. —

Trial court in an embezzlement case did not commit prejudicial error in charging the jury that defendant was a fiduciary person though this section, neither contains nor refers to the words “fiduciary person,” since the trial court was not restricted to using the exact words of the statute in giving instructions and the use of “fiduciary person” to define that statutory phrasing of this section has been specifically approved by the North Carolina Supreme Court. The use of the words was not an expression of trial judge’s opinion contrary to the mandate of G.S. 15A-1222 . State v. Barbour, 43 N.C. App. 143, 258 S.E.2d 475, 1979 N.C. App. LEXIS 3039 (1979).

Same — Reference to Crime of Larceny. —

The trial court in an embezzlement case did not err in referring in the instructions to the crime of larceny where the court was simply explaining the crime of embezzlement by contrasting it with the crime of larceny. State v. Thompson, 50 N.C. App. 484, 274 S.E.2d 381, 1981 N.C. App. LEXIS 2131 (1981).

§ 14-93. Embezzlement by treasurers of charitable and religious organizations.

If any treasurer or other financial officer of any benevolent or religious institution, society or congregation shall lend any of the moneys coming into his hands to any other person or association without the consent of the institution, association or congregation to whom such moneys belong; or, if he shall fail to account for such moneys when called on, he shall be guilty of a felony. If the violation of this section involves money with a value of one hundred thousand dollars ($100,000) or more, the person is guilty of a Class C felony. If the violation of this section involves money with a value of less than one hundred thousand dollars ($100,000) or less, a violation of this section is a Class H felony.

History. 1879, c. 105; Code, s. 1017; Rev., s. 3409; C.S., s. 4271; 1993, c. 539, s. 1178; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(g).

CASE NOTES

Two Offenses Created. —

Under this section two offenses are created which apply to certain officers of benevolent or religious institutions. One offense is the lending of their moneys without consent; the other is the failure to account for such moneys. State v. Dunn, 138 N.C. 672 , 50 S.E. 772, 1905 N.C. LEXIS 314 (1905).

Association for Members Solely. —

An association organized for the benefit of its members solely is not a benevolent or religious association and in indictment under this section cannot be sustained against an officer who misappropriates funds of the association. State v. Dunn, 134 N.C. 663 , 46 S.E. 949, 1904 N.C. LEXIS 143 (1904).

§ 14-94. Embezzlement by officers of railroad companies.

If any president, secretary, treasurer, director, engineer, agent or other officer of any railroad company shall embezzle any moneys, bonds or other valuable funds or securities, with which such president, secretary, treasurer, director, engineer, agent or other officer shall be charged by virtue of his office or agency, or shall in any way, directly or indirectly, apply or appropriate the same for the use or benefit of himself or any other person, state or corporation, other than the company of which he is president, secretary, treasurer, director, engineer, agent or other officer, for every such offense the person so offending shall be guilty of a felony, and on conviction in the superior or criminal court of any county through which the railroad of such company shall pass, shall be punished as a felon. If the value of the money, bonds, or other valuable funds or securities is one hundred thousand dollars ($100,000) or more, a violation of this section is a Class C felony. If the value of the money, bonds, or other valuable funds or securities is less than one hundred thousand dollars ($100,000), a violation of this section is a Class H felony.

History. 1870-1, c. 103, s. 1; Code, s. 1018; Rev., s. 3403; C.S., s. 4272; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1997-443, s. 19.25(h).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-95. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 71(6).

Cross References.

For structured sentencing provisions, see now G.S. 15A-1340.10 et seq.

§§ 14-96, 14-96.1. [Repealed]

Repealed by Session Laws 1989 (Regular Session, 1990), c. 1054, s. 6.

Cross References.

For provisions relating to embezzlement by insurance agents, brokers or administrators, and reports to the Commissioner, see now G.S. 58-2-162 , 58-2-163.

§ 14-97. Appropriation of partnership funds by partner to personal use.

Any person engaged in a partnership business in the State of North Carolina who shall, without the knowledge and consent of his copartner or copartners, take funds belonging to the partnership business and appropriate the same to his own personal use with the fraudulent intent of depriving his copartners of the use thereof, shall be guilty of a felony. Appropriation of partnership funds with a value of one hundred thousand dollars ($100,000) or more by a partner is a Class C felony. Appropriation of partnership funds with the value of less than one hundred thousand dollars ($100,000) by a partner is a Class H felony.

History. 1921, c. 127; C.S., s. 4274(a); 1993, c. 539, s. 1179; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(i).

CASE NOTES

Fraudulent intent is an essential element of this crime and must be proved by the State, and in a prosecution under this section an instruction that the jury should return a verdict of guilty if they found beyond a reasonable doubt the facts to be as the evidence tended to show, is error, the question of fraudulent intent being a question for the jury to determine from the evidence. State v. Rawls, 202 N.C. 397 , 162 S.E. 899, 1932 N.C. LEXIS 518 (1932).

§ 14-98. Embezzlement by surviving partner.

If any surviving partner shall willfully and intentionally convert any of the property, money or effects belonging to the partnership to his own use, and refuse to account for the same on settlement, he shall be guilty of a felony. If the property, money, or effects has a value of one hundred thousand dollars ($100,000) or more, a violation of this section is a Class C felony. If the property, money, or effects has a value of less than one hundred thousand dollars ($100,000), a violation of this section is a Class H felony.

History. 1901, c. 640, s. 9; Rev., s. 3405; C.S., s. 4275; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1997-443, s. 19.25(j).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-99. Embezzlement of taxes by officers.

If any officer appropriates to his own use the State, county, school, city or town taxes, he shall be guilty of embezzlement, and shall be punished as a felon. If the value of the taxes is one hundred thousand dollars ($100,000) or more, a violation of this section is a Class C felony. If the value of the taxes is less than one hundred thousand dollars ($100,000), a violation of this section is a Class F felony.

History. 1883, c. 136, s. 49; Code, s. 3705; Rev., s. 3410; C.S., s. 4276; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1180; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(k).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Inference of Fraudulent Intent. —

While the intent to commit the offense of embezzlement is an essential ingredient of the crime, the fraudulent intent may be inferred by the jury under evidence sufficient to show it, and where under such evidence the trial court correctly defines such intent, and places the burden of proof throughout the trial on the State to show the intent beyond a reasonable doubt, an exception that the court failed to instruct the jury upon the element of felonious intent is untenable. State v. Lancaster, 202 N.C. 204 , 162 S.E. 367, 1932 N.C. LEXIS 460 (1932).

Article 19. False Pretenses and Cheats.

§ 14-100. Obtaining property by false pretenses.

  1. If any person shall knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value, such person shall be guilty of a felony: Provided, that if, on the trial of anyone indicted for such crime, it shall be proved that he obtained the property in such manner as to amount to larceny or embezzlement, the jury shall have submitted to them such other felony proved; and no person tried for such felony shall be liable to be afterwards prosecuted for larceny or embezzlement upon the same facts: Provided, further, that it shall be sufficient in any indictment for obtaining or attempting to obtain any such money, goods, property, services, chose in action, or other thing of value by false pretenses to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person, and without alleging any ownership of the money, goods, property, services, chose in action or other thing of value; and upon the trial of any such indictment, it shall not be necessary to prove either an intent to defraud any particular person or that the person to whom the false pretense was made was the person defrauded, but it shall be sufficient to allege and prove that the party accused made the false pretense charged with an intent to defraud. If the value of the money, goods, property, services, chose in action, or other thing of value is one hundred thousand dollars ($100,000) or more, a violation of this section is a Class C felony. If the value of the money, goods, property, services, chose in action, or other thing of value is less than one hundred thousand dollars ($100,000), a violation of this section is a Class H felony.
  2. Evidence of nonfulfillment of a contract obligation standing alone shall not establish the essential element of intent to defraud.

    (b1) In any prosecution for violation of this section, the State is not required to establish that all of the acts constituting the crime occurred in this State or within a single city, county, or local jurisdiction of this State, and it is no defense that not all of the acts constituting the crime occurred in this State or within a single city, county, or local jurisdiction of this State.

  3. For purposes of this section, “person” means person, association, consortium, corporation, body politic, partnership, or other group, entity, or organization.

History. 33 Hen. VIII, c. 1, ss. 1, 2; 30 Geo. II, c. 24, s. 1; 1811, c. 814, s. 2, P.R; R.C., c. 34, s. 67; Code, s. 1025; Rev., s. 3432; C.S., s. 4277; 1975, c. 783; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1997-443, s. 19.25(l); 2019-193, s. 2(a).

Cross References.

As to obtaining property or services by false or fraudulent use of credit cards or other means, see G.S. 14-113.1 et seq.

As to alleging intent in the indictment, see G.S. 15-151 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

Session Laws 2019-193, s. 2(b), made subsection (b1), as added by Session Laws 2019-193, s. 2(a), effective December 1, 2019, and applicable to offenses committed on or after that date, and further provided: “Prosecutions for offenses committed before the effective date of this act are not abated by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2019-193, s. 2(a), added subsection (b1). For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For survey of 1980 criminal law, see 59 N.C.L. Rev. 1123 (1981).

For article, “After Goeller v. United States, Can the Theft Loss Treatment Now Be Applied to Investments When Corporate Deception is Present?,” see 38 Campbell L. Rev. 1 (2016).

CASE NOTES

Analysis

I.General Consideration

Origin of Section. —

This section was derived from the English statutes, 33 Henry VIII, and 30 George II. State v. Yarboro, 194 N.C. 498 , 140 S.E. 216, 1927 N.C. LEXIS 138 (1927).

Unlike larceny, which is a common-law offense, the crime of obtaining property by false pretenses is statutory. State v. Kelly, 75 N.C. App. 461, 331 S.E.2d 227, 1985 N.C. App. LEXIS 3708 (1985).

Purpose. —

The simple purpose of this section is to prevent persons from using false pretenses to obtain property. The ultimate loss to the victim, therefore, is an issue which is irrelevant to the purpose of the criminal statute and is an issue properly within the province of the civil courts. State v. Hines, 36 N.C. App. 33, 243 S.E.2d 782, 1978 N.C. App. LEXIS 2402 , cert. denied, 295 N.C. 262 , 245 S.E.2d 779, 1978 N.C. LEXIS 1004 (1978).

The gist of the offense described in this section is obtaining something of value from the owner thereof by false pretense. State v. Wilson, 34 N.C. App. 474, 238 S.E.2d 632, 1977 N.C. App. LEXIS 1721 (1977).

The gist of obtaining property by false pretense is the false representation of a subsisting fact which is intended to and which does deceive one from whom property is obtained. State v. Linker, 309 N.C. 612 , 308 S.E.2d 309, 1983 N.C. LEXIS 1445 (1983).

The essence of the crime is the intentional false pretense, and not the resulting economic harm to the victim. State v. Hines, 36 N.C. App. 33, 243 S.E.2d 782, 1978 N.C. App. LEXIS 2402 , cert. denied, 295 N.C. 262 , 245 S.E.2d 779, 1978 N.C. LEXIS 1004 (1978).

Scope of Proscribed Activity Broadened by 1975 Amendment. —

The legislature, by the unambiguous language of the 1975 amendment of this section, clearly intended to broaden the scope of the proscribed activity so as to make a false representation “of a past or subsisting fact or of a future fulfillment or event” punishable under the statute, and to include in the definition of the crime an attempt to obtain something of value with an intent to defraud. State v. Cronin, 299 N.C. 229 , 262 S.E.2d 277, 1980 N.C. LEXIS 922 (1980).

Prior to the 1975 amendment to this section, criminal liability could not be imposed on someone for misrepresenting his intention to do something in the future, since his “state of mind” was not considered a subsisting fact. The statute’s 1975 amendment, however, broadened the scope of proscribed activity to include, within the definition of “false pretense,” cases in which someone misrepresents his present intention to perform a promise. State v. Compton, 90 N.C. App. 101, 367 S.E.2d 353, 1988 N.C. App. LEXIS 380 (1988).

Prosecution Under This Section Where Other Sections More Specifically Fit Alleged Activities. —

A person may be prosecuted under this section although other statutes, such as G.S. 14-106 or 14-107, more specifically fit the alleged activities, since a single act or transaction may violate different statutes. State v. Freeman, 59 N.C. App. 84, 295 S.E.2d 619, 1982 N.C. App. LEXIS 2857 (1982), rev'd, 308 N.C. 502 , 302 S.E.2d 779, 1983 N.C. LEXIS 1217 (1983).

Defendant May Be Charged But Not Convicted of Both Embezzlement and False Pretenses. —

While a defendant cannot be convicted of both embezzlement and false pretenses based upon a single transaction, the State may charge the defendant with both offenses. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

And State Need Not Elect Between Them. —

As to embezzlement and false pretenses charges, the legislature intended to give full effect to North Carolina’s original common law rule against requiring the State to elect between charges, if the felonies charged allegedly arose from the same transaction. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Where There Is Substantial Evidence of Each. —

Where there is substantial evidence tending to support both embezzlement and false pretenses arising from the same transaction, the State is not required to elect between the offenses. Indeed, if the evidence at trial conflicts, and some of it tends to show false pretenses but other evidence tends to show that the same transaction amounted to embezzlement, the trial court should submit both charges for the jury’s consideration; in doing so, however, the trial court must instruct the jury that it may convict the defendant only of one of the offenses or the other, but not of both. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

But Court May Only Submit Charge Supported by Evidence. —

If the evidence at trial tends only to show embezzlement or tends only to show false pretenses, the trial court must submit only the charge supported by evidence for the jury’s consideration. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Consolidated Conviction of Both Embezzlement and False Pretenses as Error. —

Separate convictions for mutually exclusive offenses, even though consolidated for a single judgment, have potentially severe adverse collateral consequences; therefore, consolidating the two convictions against defendant for embezzlement and obtaining property by false pretenses and entering a single judgment did not reduce the trial court’s error to harmless error. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Collateral Estoppel Did Not Bar Trial. —

Collateral estoppel under G.S. 15A-954(a)(7) did not bar trial on a second set of 10 checks that were the subject of obtaining money by false pretenses indictments since even if the victim gave permission as to the first four checks litigated in a first trial, a jury could still find that the victim did not give permission to defendant to cash the 10 checks; because of the lack of joinder and the fact that the transactions in the second case occurred at a different time, the only issues decided in the first trial were whether defendant obtained money by false pretenses when negotiating each of the first four checks. State v. Spargo, 187 N.C. App. 115, 652 S.E.2d 50, 2007 N.C. App. LEXIS 2312 (2007).

Prosecution Under This Section After Dismissal of Larceny Charges. —

Because the crimes of larceny and obtaining property by false pretenses are separate and distinguishable offenses, the issuance of a second indictment for false pretenses, after the dismissal of larceny charges at the close of the State’s evidence, did not constitute double jeopardy. State v. Kelly, 75 N.C. App. 461, 331 S.E.2d 227, 1985 N.C. App. LEXIS 3708 (1985).

The legislature acted within its authority in setting different punishments for offenses under this section and G.S. 14-107 . State v. Freeman, 79 N.C. App. 177, 339 S.E.2d 56, 1986 N.C. App. LEXIS 1981 , cert. denied, 317 N.C. 338 , 346 S.E.2d 144 (1986).

Liability of Corporations. —

See State v. Rowland Lumber Co., 153 N.C. 610 , 69 S.E. 58, 1910 N.C. LEXIS 139 (1910).

Evidence of Similar Representations to Others. —

Evidence that defendant previously had represented to some five other parties that he would help them obtain houses, and that they had neither obtained houses or received their money back, was relevant to show defendant’s fraudulent intent in transactions which were the subject of the present prosecution, and such relevant evidence was not rendered inadmissible merely because it may have shown the commission of a separate offense. State v. Wilson, 57 N.C. App. 444, 291 S.E.2d 830, 1982 N.C. App. LEXIS 2668 (1982).

Nonfulfillment of Contractual Obligation. —

Defendant’s 10 G.S. 14-168.1 convictions were proper as defendant’s claim that since G.S. 14-100(b) specifically stated that evidence of nonfulfillment of a contract obligation, standing alone, did not establish the requisite intent to sustain an obtaining property by false pretenses charge, nonfulfillment of a contract obligation was not enough to establish the requisite intent for a conversion charge was rejected because the North Carolina legislature specifically included that limitation in the obtaining property by false pretenses statute, but not in the conversion statute; G.S. 14-168.1 could not be rewritten as under N.C. Const. Art. I, § 6, only the legislature had the power to make law. State v. Minton, 223 N.C. App. 319, 734 S.E.2d 608, 2012 N.C. App. LEXIS 1249 (2012).

II.Elements of Offense

Elements Generally. —

The crime of obtaining property by false pretenses pursuant to this section should be defined as a false representation: (1) of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another. State v. Cronin, 299 N.C. 229 , 262 S.E.2d 277, 1980 N.C. LEXIS 922 (1980); State v. Davis, 48 N.C. App. 526, 269 S.E.2d 291, 1980 N.C. App. LEXIS 3252 (1980); State v. Kilgore, 65 N.C. App. 331, 308 S.E.2d 876, 1983 N.C. App. LEXIS 3478 (1983); State v. Hopkins, 70 N.C. App. 530, 320 S.E.2d 409, 1984 N.C. App. LEXIS 3712 (1984); State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760, 1986 N.C. App. LEXIS 2179 (1986).

The elements of the offense of false pretenses are: (1) That the representation was made as alleged; (2) that property or something of value was obtained by reason of the representation; (3) that the representation was false; (4) that it was made with intent to defraud; (5) that it actually did deceive and defraud the person to whom it was made. State v. Carlson, 171 N.C. 818 , 89 S.E. 30, 1916 N.C. LEXIS 190 (1916); State v. Johnson, 195 N.C. 506 , 142 S.E. 775, 1928 N.C. LEXIS 135 (1928); In re Prushinowski, 574 F. Supp. 1439, 1983 U.S. Dist. LEXIS 12503 (E.D.N.C. 1983).

Obtaining property by false pretenses is defined as (1) a false representation of a past or subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which the defendant obtains or attempts to obtain anything of value from another person. State v. Compton, 90 N.C. App. 101, 367 S.E.2d 353, 1988 N.C. App. LEXIS 380 (1988).

Defendant Must Obtain or Attempt to Obtain Something. —

An essential element of the offense proscribed by this section is that accused “obtain or attempt to obtain” something of value by means of any kind of false pretense. State v. Hadlock, 34 N.C. App. 226, 237 S.E.2d 748, 1977 N.C. App. LEXIS 1645 (1977).

Trial court properly convicted defendant of obtaining property by false pretenses and attempting to obtain property by false pretenses because he attempted to obtain $900 from his bank by making a false representation in the bank’s affidavit that his girlfriend had forged three checks and was successful in obtaining the temporary use of $600 of the $900, the trial court did not err in failing to instruct the jury on the “single taking rule,” and defendant failed to make a double jeopardy argument before the trial court. State v. Buchanan, 253 N.C. App. 783, 801 S.E.2d 366, 2017 N.C. App. LEXIS 443 (2017).

Court of Appeals properly affirmed defendant’s convictions for obtaining property worth less than $100,000 by false pretenses because, while defendant preserved each of his challenges to the sufficiency of the State’s evidence by filing a motion to dismiss, the State presented sufficient evidence that he obtained a “thing of value” by aiding and abetting a public employee to alter or falsify court documents to secure remission of bail bond forfeitures. State v. Golder, 374 N.C. 238 , 839 S.E.2d 782, 2020 N.C. LEXIS 271 (2020).

Obtaining Thing of Value. —

In an action for obtaining property by false pretenses, the State presented sufficient evidence to establish that defendant obtained property or a thing of value, including evidence that defendant obtained credits to her taxpayer account by way of invalid payments. State v. Brantley-Phillips, 278 N.C. App. 279, 862 S.E.2d 416, 2021- NCCOA-307, 2021 N.C. App. LEXIS 332 (2021).

In an action for obtaining property by false pretenses, the State presented sufficient evidence to establish that defendant obtained property or a thing of value, including evidence that defendant obtained credits to her taxpayer account by way of invalid payments. State v. Brantley-Phillips, 278 N.C. App. 279, 862 S.E.2d 416, 2021- NCCOA-307, 2021 N.C. App. LEXIS 332 (2021).

Obtaining Something of Value Is Not an Element of Soliciting Another to Commit the Offense. —

Indictment against defendant for soliciting two others to commit the crime of false pretenses did not have to allege that defendant obtained something of value. While obtaining something of value is an element of the crime of false pretenses, it is not an element of the crime of soliciting another to commit that crime. State v. Polite, 79 N.C. App. 752, 340 S.E.2d 762, 1986 N.C. App. LEXIS 2126 (1986).

Retain Not Within Definition of Obtain. —

State failed to produce sufficient evidence that defendant obtained a professional bail bondsman’s license; while the State likened retaining to obtaining, retain is not within the definition of obtain, and thus the trial court erred by denying defendant’s motion to dismiss the obtaining property by false pretenses charge. State v. Mathis, 261 N.C. App. 263, 819 S.E.2d 627, 2018 N.C. App. LEXIS 871 (2018).

A transfer of title is not necessary for commission of the offense of obtaining property by false pretenses. State v. Walston, 67 N.C. App. 110, 312 S.E.2d 676, 1984 N.C. App. LEXIS 2997 (1984); State v. Kelly, 75 N.C. App. 461, 331 S.E.2d 227, 1985 N.C. App. LEXIS 3708 (1985).

Knowledge and Intent Are Essential. —

It is an essential element of obtaining property by false pretense that the act be done knowingly and designedly with intent to cheat or defraud. State v. Hines, 54 N.C. App. 529, 284 S.E.2d 164, 1981 N.C. App. LEXIS 2935 (1981).

The intent to cheat and defraud the prosecutor is an essential ingredient in the crime of false pretense. State v. Blue, 84 N.C. 807 , 1881 N.C. LEXIS 183 (1881); State v. Oakley, 103 N.C. 408 , 9 S.E. 575, 1889 N.C. LEXIS 128 (1889).

Intent is seldom provable by direct evidence; it must ordinarily be proved by circumstances from which it may be inferred. State v. Bennett, 84 N.C. App. 689, 353 S.E.2d 690, 1987 N.C. App. LEXIS 2546 (1987).

In determining the absence or presence of intent, the jury may consider the acts and conduct of the defendant and the general circumstances existing at the time of the alleged commission of the offense charged. State v. Bennett, 84 N.C. App. 689, 353 S.E.2d 690, 1987 N.C. App. LEXIS 2546 (1987).

Nonfulfillment of Contractual Obligation Is Not Sufficient to Show Intent. —

This section recognizes the danger that juries may improperly infer criminal intent merely from a defendant’s failure to carry out his promise, and provides that evidence of the nonfulfillment of a contractual obligation, standing alone, is not sufficient to show an intent to defraud. State v. Compton, 90 N.C. App. 101, 367 S.E.2d 353, 1988 N.C. App. LEXIS 380 (1988).

Statute set forth that evidence of nonfulfillment of a contract obligation standing alone shall not establish the essential element of intent to defraud, but nothing in the statute renders this type of evidence inadmissible, but simply makes clear that such evidence, without more, is insufficient to satisfy the intent to defraud element of this offense; defendant’s argument that the statute served as a bar to the admissibility of this evidence lacked merit. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225, 2015 N.C. App. LEXIS 706 (2015), cert. denied, 579 U.S. 918, 136 S. Ct. 2493, 195 L. Ed. 2d 824, 2016 U.S. LEXIS 4029 (2016).

Jury was informed that it was required to determine that defendant intended to defraud the insurer through her submission of documents containing false representations in order to return a guilty verdict; no reasonable juror could have been left with the mistaken belief that she could have been found guilty based solely on her failure to comply with contractual obligations under her insurance policy. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225, 2015 N.C. App. LEXIS 706 (2015), cert. denied, 579 U.S. 918, 136 S. Ct. 2493, 195 L. Ed. 2d 824, 2016 U.S. LEXIS 4029 (2016).

Deceit Shown. —

Where defendant obtained items by having a store clerk charge them to defendant’s employer’s account using a false purchase order, and the store clerk testified that he believed that defendant was buying the items on account for the employer with the employer’s authorization, the State sufficiently proved deceit as an element of obtaining property by false pretenses, because the clerk was deceived, even if the store owner, upon seeing the purchase order after the sale, was not deceived. State v. Edwards, 150 N.C. App. 544, 563 S.E.2d 288, 2002 N.C. App. LEXIS 589 (2002).

Evidence of conduct which shows merely that defendant was inept or that he failed to diligently pursue the accomplishment of his promise is insufficient to allow an inference that the promise was made without the present intention to comply with it. State v. Compton, 90 N.C. App. 101, 367 S.E.2d 353, 1988 N.C. App. LEXIS 380 (1988).

An element of the offense is that the party to whom the false representation was made was deceived by it. State v. Whedbee, 152 N.C. 770 , 67 S.E. 60, 1910 N.C. LEXIS 378 (1910).

If he is so deceived it matters not whether he parted with goods for the sake of gain or for a charitable purpose. State v. Matthews, 91 N.C. 635 , 1884 N.C. LEXIS 131 (1884).

Victim was a “person” in North Carolina. —

Presuming, without deciding, that “person within this State” was an essential element to the offense of obtaining property by false pretenses, a reasonable mind could conclude the cell phone provider was operating as a “person within this State” and that the falsely obtained iPhones came from a store operated by the victim, located in North Carolina, and thus, the trial court properly denied defendant’s motion to dismiss on that basis. State v. Pierce, 279 N.C. App. 494, 865 S.E.2d 335, 2021- NCCOA-502, 2021 N.C. App. LEXIS 521 (2021).

Charges of Embezzlement and False Pretenses Mutually Exclusive. —

Close scrutiny of the elements of embezzlement and obtaining property by false pretense shows that the two charges are mutually exclusive; in order to be found guilty of embezzlement, a defendant must obtain the property in question rightfully in the course of his employment by virtue of his fiduciary or agency relationship with his principal; the charge of obtaining property by false pretense requires the defendant to have wrongfully obtained the property at the outset. State v. Speckman, 92 N.C. App. 265, 374 S.E.2d 419, 1988 N.C. App. LEXIS 1051 (1988), rev'd, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Trial court did not err by finding that defendant had taken advantage of a position of trust by taking money from people who sought his help securing loans and using that finding as an aggravating factor when it imposed sentence, but because defendant’s plea to a charge that he took money by false pretenses when he withdrew $22,200 from a swimming association’s account was really a plea to embezzlement, the trial court should not have used the trust or confidence aggravating factor when it sentenced defendant for committing that crime. State v. Murphy, 152 N.C. App. 335, 567 S.E.2d 442, 2002 N.C. App. LEXIS 923 (2002).

Victim’s Failure to Receive Compensation Is Not an Element. —

The Supreme Court never intended the victim’s failure to receive compensation to be an element of the offense. Beginning with the statute codified as Potter’s Revisal of 1819, Laws 1811, c. 814, s. 2, through this section, there is and has been no statutory requirement that the State must prove that the defendant obtained the goods, property, things of value, services, etc., without compensation to the victims. Research discloses no case in which the question of the victim’s compensation was before the court, although in some cases the victim received nothing at all, and in some the victim did receive some compensation of a sort. State v. Hines, 36 N.C. App. 33, 243 S.E.2d 782, 1978 N.C. App. LEXIS 2402 , cert. denied, 295 N.C. 262 , 245 S.E.2d 779, 1978 N.C. LEXIS 1004 (1978).

The phrase “without compensation” has constituted obiter dictum in the cases where it has been used, and it is not an element of the offense of false pretense. State v. Hines, 36 N.C. App. 33, 243 S.E.2d 782, 1978 N.C. App. LEXIS 2402 , cert. denied, 295 N.C. 262 , 245 S.E.2d 779, 1978 N.C. LEXIS 1004 (1978).

A defendant can be convicted of obtaining goods by false pretenses in violation of this section even though some compensation is paid, if the compensation actually paid is less than the amount represented. State v. Hines, 36 N.C. App. 33, 243 S.E.2d 782, 1978 N.C. App. LEXIS 2402 , cert. denied, 295 N.C. 262 , 245 S.E.2d 779, 1978 N.C. LEXIS 1004 (1978).

Economic Harm Is Irrelevant. —

The court is not required to instruct the jury that the resulting economic harm to the defendant is not the essence of the crime. Such an economic result to the defendant is irrelevant for the purposes of this section. State v. Bass, 53 N.C. App. 40, 280 S.E.2d 7, 1981 N.C. App. LEXIS 2538 (1981).

The false pretense may be by act or conduct without spoken words. State v. Matthews, 121 N.C. 604 , 28 S.E. 469, 1897 N.C. LEXIS 289 (1897).

Caveat Emptor Is Inapplicable. —

The doctrine of caveat emptor, “let the buyer beware,” does not apply to actual fraud or obtaining property by false representation. By this doctrine the purchaser is forewarned of tricks of the trade, bluster, puffs and empty boasts on the part of the person putting his property on the market; but the seller cannot escape the penalty by reason of the doctrine where the facts constituting the crime are made to appear. State v. Jones, 70 N.C. 75 , 1874 N.C. LEXIS 168 (1874); State v. Young, 76 N.C. 258 , 1877 N.C. LEXIS 223 (1877); State v. Burke, 108 N.C. 750 , 12 S.E. 1000, 1891 N.C. LEXIS 134 (1891).

Representation to Agent of Owner of Goods. —

It is not necessary that the false representations be made to the owner of the goods directly, but it is sufficient if they were made to his agent. State v. Taylor, 131 N.C. 711 , 42 S.E. 539, 1902 N.C. LEXIS 348 (1902).

Intent to Repay Is No Defense. —

The crime under this section is committed even though the borrower who obtained a loan by means of a false representation may have intended to repay and may even have honestly believed that he would be able to repay. State v. Tesenair, 35 N.C. App. 531, 241 S.E.2d 877, 1978 N.C. App. LEXIS 3019 (1978).

Attempt to Adversely Possess Property Is No Defense. —

Contrary to defendant’s contention, the mere fact that he attempted to adversely possess the property did not insulate him from criminal liability in the event that the evidence otherwise showed his guilt of obtaining property by false pretenses. State v. Pendergraft, 238 N.C. App. 516, 767 S.E.2d 674, 2014 N.C. App. LEXIS 1345 (2014), aff'd, 368 N.C. 314 , 776 S.E.2d 679, 2015 N.C. LEXIS 932 (2015).

Predicate Act. —

Although the plaintiff argued, in response to the defendants’ motion to dismiss the claim under the North Carolina Racketeer Influence and Corruption Organizations Act (NC RICO), G.S. 75D-4 et seq., that the felony set forth in G.S. 14-100(a) served as the predicate act different from wire fraud, the plaintiff did not allege that any of the defendants violated G.S. 14-100(a) in the complaint itself. Without such an allegation, the plaintiff’s claim for violation of NC RICO was deficient. Southwood v. Credit Card Solution, 2012 U.S. Dist. LEXIS 152146 (E.D.N.C. Oct. 23, 2012), dismissed in part, 976 F. Supp. 2d 721, 2013 U.S. Dist. LEXIS 140908 (E.D.N.C. 2013).

Instruction as to “Intent to Deceive” Held Proper. —

In the context of the provisions of this section, when a person obtains something of value by means of misrepresentations with intent to deceive the victim, the requisite intent to cheat or defraud exists. Therefore, an instruction to the jury that in order to find defendant guilty it must find that defendant “intended to deceive” meets the statutory requirement that there be an “intent to cheat or defraud.” State v. Cronin, 299 N.C. 229 , 262 S.E.2d 277, 1980 N.C. LEXIS 922 (1980).

Constructive Presence for Acting In Concert Not Shown. —

Defendant’s conviction for obtaining property by false pretenses based on acting in concert was vacated as there was insufficient evidence to show he was constructively present when a court employee inputted her fraudulent hours; defendant was not anywhere near the office at the time, nothing suggested that defendant was in contact to lend help to the employee, and although defendant told another to approve the hours, this alone did not satisfy constructive presence as the approval came long after and far away from the actual execution of the crime. State v. Bradsher, 850 S.E.2d 533, 2020 N.C. App. LEXIS 700 (N.C. Ct. App. 2020).

III.Indictment

The indictment must allege all of the essential elements of the offense. State v. Claudius, 164 N.C. 521 , 80 S.E. 261, 1913 N.C. LEXIS 96 (1913).

Necessary Allegations — Accused “Obtained or Attempted to Obtain”. —

An indictment was insufficient to charge an offense under this section where the indictment failed to allege that defendant obtained or attempted to obtain anything. State v. Hadlock, 34 N.C. App. 226, 237 S.E.2d 748, 1977 N.C. App. LEXIS 1645 (1977).

Same — “Feloniously”. —

The offense is a felony and a bill of indictment charging such offense and which omits the word “feloniously” is defective, and judgment will be arrested on a verdict of guilty. State v. Caldwell, 112 N.C. 854 , 16 S.E. 1010, 1893 N.C. LEXIS 302 (1893).

Indictment failing to include the word “feloniously” was insufficient. State v. Fowler, 266 N.C. 528 , 146 S.E.2d 418, 1966 N.C. LEXIS 1379 (1966).

Same — Intent to Defraud. —

Where the indictment upon which the defendant was charged failed to allege that the defendant acted with the intent to defraud, the omission of an essential element of this section was fatal to the indictment. State v. Moore, 38 N.C. App. 239, 247 S.E.2d 670, 1978 N.C. App. LEXIS 2138 , cert. denied, 295 N.C. 736 , 248 S.E.2d 866, 1978 N.C. LEXIS 1147 (1978).

Same — Causal Connection. —

The indictment must show a causal connection between the false representation and the parting with the property (State v. Whedbee, 152 N.C. 770 , 67 S.E. 60 (1910)) but no particular form of words is necessary; an allegation that “by means of the false pretense” or “relying on the false pretense,” or the like, is sufficient, where it is apparent that the delivery of the property was the natural result of the pretense alleged. State v. Claudius, 164 N.C. 521 , 80 S.E. 261, 1913 N.C. LEXIS 96 (1913).

A bill of indictment for obtaining property by false pretense must contain allegations sufficient to state a causal connection between the alleged false representation and the obtaining of the property or money. State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760, 1986 N.C. App. LEXIS 2179 (1986).

An allegation that money or property was obtained “by means of a false pretense” is sufficient to allege the causal connection where the facts alleged are adequate to make clear that the delivery of the property was the result of the false representation. State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760, 1986 N.C. App. LEXIS 2179 (1986).

Same — Property Obtained. —

The indictment must describe the thing alleged to have been obtained with reasonable certainty, and by the name or term usually employed to describe it. State v. Gibson, 169 N.C. 318 , 85 S.E. 7, 1915 N.C. LEXIS 217 (1915).

Since a superseding indictment sufficiently described the false pretense incident as the defendant representing to the store employee that he was entitled to a cash refund for a watch band, when in truth and in fact, he knew that he had unlawfully taken the watch band and was not entitled to a refund, the indictment gave him proper notice and was properly not dismissed. State v. Ledwell, 171 N.C. App. 314, 614 S.E.2d 562, 2005 N.C. App. LEXIS 1212 (2005), cert. dismissed, 699 S.E.2d 639, 2010 N.C. LEXIS 1101 (N.C. 2010).

Since the indictment alleged the defendant sought to exchange the watch band that he had taken from the store for cash, the indictment did not have to allege the exact amount of cash that the defendant had tried to obtain by false pretenses. State v. Ledwell, 171 N.C. App. 314, 614 S.E.2d 562, 2005 N.C. App. LEXIS 1212 (2005), cert. dismissed, 699 S.E.2d 639, 2010 N.C. LEXIS 1101 (N.C. 2010).

Indictments were insufficient to allege the crime of obtaining property by false pretenses because the indictments alleged that defendant obtained services from others, but the term “services” did not describe with reasonable certainty the property obtained by false pretenses. State v. Jones, 367 N.C. 299 , 758 S.E.2d 345, 2014 N.C. LEXIS 173 (2014).

Indictment for obtaining property by false pretenses must describe the property obtained in sufficient detail to identify the transaction by which defendant obtained money. State v. Mostafavi, 370 N.C. 681 , 811 S.E.2d 138, 2018 N.C. LEXIS 216 (2018).

Indictment for False Pretenses Must Describe Property Obtained. —

Indictment for obtaining property by false pretenses must describe the property obtained in sufficient detail to identify the transaction by which defendant obtained money. State v. Mostafavi, 370 N.C. 681 , 811 S.E.2d 138, 2018 N.C. LEXIS 216 (2018).

Unnecessary Allegations — Person Intended to be Cheated. —

The charge as to the persons intended to be cheated is surplusage and immaterial; all that is necessary is a charge of intent. State v. Ridge, 125 N.C. 655 , 34 S.E. 439, 1899 N.C. LEXIS 281 (1899); State v. Salisbury Ice & Fuel Co., 166 N.C. 366 , 81 S.E. 737, 1914 N.C. LEXIS 408 (1914).

Same — Actual Deceit. —

The specific allegation in the bill of indictment that the victim was in fact deceived is unnecessary when the facts alleged suggest that the false pretense was the probable motivation for the victim’s conduct. State v. Hines, 36 N.C. App. 33, 243 S.E.2d 782, 1978 N.C. App. LEXIS 2402 , cert. denied, 295 N.C. 262 , 245 S.E.2d 779, 1978 N.C. LEXIS 1004 (1978).

Same — “Without compensation.” —

The phrase “without compensation” is not an essential element of the offense of false pretenses, and, therefore, it is not necessary to allege in a bill of indictment charging false pretenses that the accused obtained property from the victim “without compensation.” State v. Cronin, 299 N.C. 229 , 262 S.E.2d 277, 1980 N.C. LEXIS 922 (1980).

Same — Value of Property. —

No averment of the value of the property obtained is necessary. State v. Gillespie, 80 N.C. 396 , 1879 N.C. LEXIS 106 (1879).

Same — Present Form of Property. —

It is not legally significant whether the thing gained by the party perpetrating the criminal act under this section is in the same form as it was when taken by false pretense from the owner. Thus, there was no variance in cases where the bills of indictment charged that the defendant obtained money from his employer and the evidence disclosed that he received a color television set and a clothes dryer from another party in exchange for the money pursuant to a prior agreement. State v. Wilson, 34 N.C. App. 474, 238 S.E.2d 632, 1977 N.C. App. LEXIS 1721 (1977).

Aiding and Abetting Allegations Were Surplusage. —

Because allegations of whether a defendant was acting in concert or aiding and abetting were “irrelevant and surplusage,” defendant failed to show that instructing the jury on the basis of one of these theories substantially altered the charged offense, and defendant’s argument that defendant was unable to prepare a defense lacked merit. Defendant had timely notice of the charges to adequately prepare a defense and was not convicted of a crime other than that alleged in the indictment. State v. Estes, 186 N.C. App. 364, 651 S.E.2d 598, 2007 N.C. App. LEXIS 2208 (2007).

Victim’s Name was Surplusage. —

That the indictment alleged that defendant obtained value from a victim by false pretenses, but the State’s evidence showed that defendant obtained value from the victim’s husband, was not fatal to the State’s case because inclusion of the victim’s name in the indictment was not required by G.S. 14-100(a) and thus was surplusage. State v. Seelig, 226 N.C. App. 147, 738 S.E.2d 427, 2013 N.C. App. LEXIS 277 (2013).

Variance Between Misrepresentation Alleged and That Proven. —

The State must prove, as an essential element of the crime, that defendant made the misrepresentation as alleged. If the State’s evidence fails to establish that defendant made this misrepresentation, but tends to show that some other misrepresentation was made, then the State’s proof varies fatally from the indictments. State v. Linker, 309 N.C. 612 , 308 S.E.2d 309, 1983 N.C. LEXIS 1445 (1983).

Indictment Charging False Pretenses Will Support Embezzlement Conviction. —

This statute now clearly provides that a defendant may be convicted of embezzlement upon an indictment charging him with false pretenses. State v. Speckman, 326 N.C. 576 , 391 S.E.2d 165, 1990 N.C. LEXIS 237 (1990).

Identity of Victim Not Required For Restitution Order. —

Victim was not required to be specifically identified in the indictment before the victim could receive restitution. State v. Moore, 209 N.C. App. 551, 705 S.E.2d 797, 2011 N.C. App. LEXIS 210 , rev'd in part, 365 N.C. 283 , 715 S.E.2d 847, 2011 N.C. LEXIS 813 (2011).

Sufficiency of Indictment. —

Indictment, which charged that defendant committed two counts of obtaining property by false pretenses, was not fatally defective because there was no confusion as to what offenses the State of North Carolina accused defendant of committing as the use of the term “solicit” in the indictment did not necessarily imply the allegation of a separate criminal act for solicitation, and the indictment did not have to specify the alleged victim as the State of North Carolina was not required to prove an intent to defraud any particular person. State v. McBride, 187 N.C. App. 496, 653 S.E.2d 218, 2007 N.C. App. LEXIS 2418 (2007).

Indictments alleging that defendant obtained money from the victims by employing a false pretense, and that he sold the victims bread products advertised as gluten-free when in fact he knew they contained gluten, were not facially deficient because the allegations were sufficient to raise a reasonable inference that defendant was the person who made the false representation that the products were gluten-free. State v. Seelig, 226 N.C. App. 147, 738 S.E.2d 427, 2013 N.C. App. LEXIS 277 (2013).

False pretenses indictment returned against defendant sufficiently apprised defendant that he had been accused of falsely representing that he owned the subject property as part of an attempt to fraudulently obtain ownership or possession of it, having alleged that he wrongfully obtained the property by moving into the house with the intent to fraudulently convert the property to his own. State v. Pendergraft, 238 N.C. App. 516, 767 S.E.2d 674, 2014 N.C. App. LEXIS 1345 (2014), aff'd, 368 N.C. 314 , 776 S.E.2d 679, 2015 N.C. LEXIS 932 (2015).

Indictments were not facially invalid, as in each indictment, the State gave the name of the victim, the monetary sum defendant took from each victim, and the false representation used by defendant to obtain the money by defendant, approaching the victims, claiming the roof of their home needed repair, and overcharging for work that did not need to be done or damages caused by defendant. State v. Barker, 240 N.C. App. 224, 770 S.E.2d 142, 2015 N.C. App. LEXIS 369 (2015).

Indictments for the two counts relating to the moving expenses were legally sufficient; it was clear from the indictments that the false invoices submitted formed the basis for these counts. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225, 2015 N.C. App. LEXIS 706 (2015), cert. denied, 579 U.S. 918, 136 S. Ct. 2493, 195 L. Ed. 2d 824, 2016 U.S. LEXIS 4029 (2016).

Court of appeals erred in vacating defendant’s convictions for obtaining property by false presences because indictment describes the personal property used to obtain money, and defendant was not confused at trial regarding the property conveyed; in light of the pleading requirements set forth in the Criminal Procedure Act of 1975, the indictment did not need to include the amount of money obtained because it adequately advised defendant of the conduct that was the subject of the accusation. State v. Mostafavi, 370 N.C. 681 , 811 S.E.2d 138, 2018 N.C. LEXIS 216 (2018).

Court of appeals erred in vacating defendant’s convictions for obtaining property by false presences because the indictment was facially valid and fulfilled the purpose of the Criminal Procedure Act of 1975 since it tracked the language of the false presences statute and clearly identified the conduct subject of the accusation; the indictment described the personal property used to obtain money, the inclusion of which was sufficient to identify the specific transactions at issue. State v. Mostafavi, 370 N.C. 681 , 811 S.E.2d 138, 2018 N.C. LEXIS 216 (2018).

No Fatal Variance. —

There was not a fatal variance between the indictment and the State’s evidence, and therefore the trial court did not err by denying defendant’s motion to dismiss the charge of obtaining property by false pretenses, because the indictment did not allege that the false pretense was that defendant forged a special warranty deed, forgery was not an essential element of the offense, and the State presented ample evidence that defendant presented and recorded a forged deed. State v. Everette, 237 N.C. App. 35, 764 S.E.2d 634, 2014 N.C. App. LEXIS 1083 (2014).

Fatal Variance. —

Document at issue was not a fraudulent invoice purporting to be from an entity that was actually fictitious, but rather a genuine estimate prepared by a legitimate business; there was a fatal variance between the allegations of the indictment and the evidence presented at trial to establish this count of obtaining property by false pretenses, and the conviction on this count was vacated. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225, 2015 N.C. App. LEXIS 706 (2015), cert. denied, 579 U.S. 918, 136 S. Ct. 2493, 195 L. Ed. 2d 824, 2016 U.S. LEXIS 4029 (2016).

IV.Illustrative Cases

Jury Instruction on Doctrine of Recent Possession. —

Trial court properly instructed the jury on the doctrine of recent possession at defendant’s trial for obtaining property by false pretenses because the doctrine did not have elements which were logically inconsistent with the offense and there was evidence upon which the jury could have inferred that defendant was the one who took hedge trimmers. The evidence showed that hedge trimmers were stolen and that defendant exclusively had possession of the hedge trimmers at a pawn shop almost two hours after the hedge trimmers were taken. State v. Street, 254 N.C. App. 214, 802 S.E.2d 526, 2017 N.C. App. LEXIS 451 (2017).

Jury Instruction on Single Taking Rule. —

Defendant filed a single affidavit to obtain credit for three checks, which would support only a single taking; the fact that defendant was unsuccessful in obtaining a credit for all three checks was irrelevant, and error in failing to instruct the jury on the single taking rule amounted to plain error. State v. Buchanan, 262 N.C. App. 303, 821 S.E.2d 890, 2018 N.C. App. LEXIS 1085 (2018).

Instruction Regarding False Misrepresentation. —

Trial court did not err in failing to give an instruction about the misrepresentation alleged in the indictment; although defendant claimed there were two false representations the State advanced at trial to support the obtaining property by false pretenses charges based on falsified hours that were not the false representation alleged in the indictment, one lone statement could not serve as an alternative false representation, plus it did not follow that the State was advancing an alternative false representation when it alleged that defendant urged another to approve the employee’s hours. State v. Bradsher, 850 S.E.2d 533, 2020 N.C. App. LEXIS 700 (N.C. Ct. App. 2020).

False Representations as to Deed of Trust. —

A representation that a deed of trust covered certain land, which was not in fact included, on the faith of which defendant obtained money was a false pretense within this section. State v. Roberts, 189 N.C. 93 , 126 S.E. 161, 1925 N.C. LEXIS 251 (1925).

False representation that land is free from encumbrances, when knowingly made in order to effect a sale, or to obtain a loan, may be the subject matter of this offense. State v. Banks, 24 N.C. App. 604, 211 S.E.2d 860, 1975 N.C. App. LEXIS 2451 (1975); State v. Wallace, 25 N.C. App. 360, 213 S.E.2d 420, 1975 N.C. App. LEXIS 2264 , cert. denied, 287 N.C. 468 , 215 S.E.2d 628, 1975 N.C. LEXIS 1153 (1975).

One who obtains money as the purchase price of land sold by him to another upon the representation that the land is unencumbered, when it is encumbered by a mortgage, is liable in a prosecution for obtaining goods under false pretenses. State v. Munday, 78 N.C. 460 , 1878 N.C. LEXIS 253 (1878).

False Representation as to Security for Loan. —

The crime of obtaining property for means of a false pretense is committed when one obtains a loan of money by falsely representing the nature of the security given, or by falsely representing that the property pledged as security is free from liens. State v. Tesenair, 35 N.C. App. 531, 241 S.E.2d 877, 1978 N.C. App. LEXIS 3019 (1978).

False Representation of Insurance Application. —

Evidence was sufficient to support a permissible inference that defendant agent intended to cheat or defraud when without authority he submitted insurance premium and application filled out based on information taken from another company’s policy and received the advance on his commission under false pretense, and there was sufficient competent evidence for the jury to determine defendant’s ulterior criminal intent. State v. Melvin, 99 N.C. App. 16, 392 S.E.2d 740, 1990 N.C. App. LEXIS 484 (1990).

False Representations as to Standing Timber. —

A conviction under this section for false and fraudulent representations as to the quantity of standing timber on land sold to the prosecutor cannot be sustained where the amount of the purchase price for land is to be determined by the number of feet of timber cut therefrom, the prosecutor not being damaged thereby; nor can the conviction be sustained for misrepresentations as to the quality of the trees, when the prosecutor had ample opportunity to inspect them and had been urged to do so by the defendant. State v. Corey, 199 N.C. 209 , 153 S.E. 923, 1930 N.C. LEXIS 87 (1930).

Misrepresentation of Personal Identity. —

The crime of obtaining property by means of a false pretense may be committed when one obtains goods on credit by a willful misrepresentation of his identity, quite apart from any intention of the defendant ultimately to pay or not to pay. State v. Tesenair, 35 N.C. App. 531, 241 S.E.2d 877, 1978 N.C. App. LEXIS 3019 (1978).

Allegations in indictments to the effect that the property in question was obtained “by means of a false pretense which was calculated to deceive and did deceive,” in that “the defendant received and accepted delivery . . . by representing herself as ‘Mrs. A. Johnson,’ ” sufficiently alleged that the defendant’s misrepresentations deceived the owner of the property and that the property was obtained as a result of the misrepresentation. State v. Anthony, 74 N.C. App. 590, 328 S.E.2d 598, 1985 N.C. App. LEXIS 3548 (1985).

Jury Instruction Failed to Allege Exact Misrepresentation Upheld. —

Where the State’s evidence showed that defendant obtained property (the victims’ money) by false pretenses (the statements that defendant was a “broker” or “licensed broker” and that their money would be invested in stock options), even though the instruction on obtaining property by false pretenses failed to mention the exact misrepresentation alleged in the indictment, there was no fatal variance between the indictment, the proof presented at trial, and the instructions given to the jury. State v. Clemmons, 111 N.C. App. 569, 433 S.E.2d 748, 1993 N.C. App. LEXIS 859 , cert. denied, 335 N.C. 240 , 439 S.E.2d 153, 1993 N.C. LEXIS 622 (1993).

False Statement of Ownership to Pawn Broker. —

In a prosecution for obtaining property by false pretenses in violation of G.S. 14-100 , the trial court properly granted the State’s motion to join two offenses pursuant to G.S. 15A-926(a), because a transactional connection between the offenses was evidenced by a common modus operandi, the short time lapse between the criminal activity, and similar circumstances in victim, location, and motive; the trial court also properly granted the State’s motion pursuant to G.S. 15A-923(e) to amend the indictment to change the date of the charged offense, as the controlling precedent held that such a change was permissible, and properly denied defendant’s motion to dismiss for insufficient evidence pursuant to G.S. 15A-954 , as the State produced sufficient evidence that a pawn shop owner was actually deceived by defendant’s false representation that he owned stolen cameras. State v. Simpson, 159 N.C. App. 435, 583 S.E.2d 714, 2003 N.C. App. LEXIS 1531 , aff'd, 357 N.C. 652 , 588 S.E.2d 466, 2003 N.C. LEXIS 1417 (2003).

State presented substantial evidence that defendant falsely represented he owned the stolen property sufficient to withstand defendant’s motion to dismiss the two counts of obtaining property by false pretenses because a pawnshop employee verified the pawn tickets, which stated defendant was giving a security interest in the described goods. State v. Mostafavi, 370 N.C. 681 , 811 S.E.2d 138, 2018 N.C. LEXIS 216 (2018).

The falsification of expense records cannot in itself constitute the crime of false pretenses, since it is essential that the false pretense must have included the transfer of money or property, i.e., there must be a causal relationship between the representation alleged to have been made and the obtaining of the money or property. State v. Davis, 48 N.C. App. 526, 269 S.E.2d 291, 1980 N.C. App. LEXIS 3252 (1980).

False Representations Regarding Termite Treatments. —

Evidence held sufficient to support conviction of obtaining money by false pretenses by false representations to homeowners that their homes were in need of treatment for termites, and by misrepresenting the nature of the treatment which was actually provided. State v. Childers, 80 N.C. App. 236, 341 S.E.2d 760, 1986 N.C. App. LEXIS 2179 (1986).

Evidence tending to show that the defendant was not licensed to sell insurance for United American Insurance Company was not sufficient to raise an inference that the defendant intended to cheat or defraud the insurees, nor did the evidence tending to show that the defendant told them that the policies would be issued within five to six weeks raise any such inference, in light of the evidence tending to show that the insurance policies were in fact issued. State v. Bennett, 84 N.C. App. 689, 353 S.E.2d 690, 1987 N.C. App. LEXIS 2546 (1987).

Creation of Appearance of Legitimate Business. —

Where defendant opened a business account in the name of a nonexistent business and drew four checks against the account knowing there were insufficient funds in the account to cover the amount of the checks, bank employees and the investigating officer were unable to locate the business at the address printed on the check or at any other location, and there was no evidence in the record to suggest any legitimate business purpose for defendant’s having opened an account in the name of that business, the jury could find the defendant had committed four separate violations of obtaining property by false pretenses by creating the identity of a business calculated to engender confidence in the inherent worth of the checks. State v. Bresse, 101 N.C. App. 519, 400 S.E.2d 73, 1991 N.C. App. LEXIS 65 , cert. denied, 329 N.C. 272 , 407 S.E.2d 842, 1991 N.C. LEXIS 436 (1991).

Worthless Checks. —

The writing and passing of a worthless check in exchange for property, standing alone, is sufficient to uphold a conviction for obtaining property under false pretenses. State v. Rogers, 346 N.C. 262 , 485 S.E.2d 619, 1997 N.C. LEXIS 301 (1997).

Withholding Customers’ Negative Balance Statements. —

Trial court erred by granting a former employer’s motion for a directed verdict as to a former employee’s wrongful discharge claim because the evidence tended to show that the employer violated G.S. 14-100 by purposely withholding customers’ negative balance statements, transferring those monies to a separate account, and sending out subsequent statements that did not show the negative balance, which induced the customers to pay the amounts for each of the invoices listed therein; because the employee’s wrongful discharge claim was based upon being terminated in retaliation for reporting the employer’s conduct, his claim fell within the very narrow public policy exception to the at-will employment doctrine. Combs v. City Elec. Supply Co., 203 N.C. App. 75, 690 S.E.2d 719, 2010 N.C. App. LEXIS 503 (2010).

Relevant Evidence. —

Defendant’s failure to respond and to attend or reschedule the examination raised a reasonable inference as to her awareness that her claims were fraudulent; because this evidence was relevant to an essential element of an offense of obtaining property by false pretenses, its admission did not violate the rule. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225, 2015 N.C. App. LEXIS 706 (2015), cert. denied, 579 U.S. 918, 136 S. Ct. 2493, 195 L. Ed. 2d 824, 2016 U.S. LEXIS 4029 (2016).

Prior Bad Acts. —

In a prosecution for uttering a forged instrument (G.S. 14-120) and attempting to obtain property by false pretenses (G.S. 14-100), the trial court did not err in admitting a second forged check under G.S. 8C-1 , N.C. R. Evid. 404(b), as it was relevant to undercut defendant’s explanations for possessing the check at issue and establish his intent to defraud, and the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under G.S. 8C-1 , N.C. R. Evid. 403. State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163, 2012 N.C. App. LEXIS 515 (2012), writ denied, 367 N.C. 790 , 766 S.E.2d 670, 2014 N.C. LEXIS 1139 (2014).

Convictions for Insurance Fraud and Obtaining Property by False Pretenses Proper. —

Because the North Carolina legislature expressed its intent to proscribe and punish the same misrepresentation under both insurance fraud and obtaining property by false pretenses, the trial court did not err by consolidating both Class H felony convictions for judgment and sentencing defendant in the high presumptive range for one Class H felony. State v. Ray, 274 N.C. App. 240, 851 S.E.2d 653, 2020 N.C. App. LEXIS 745 (2020).

Erroneous Charge to Jury. —

The trial court erred where, although the first part of charge concerning the elements of obtaining property by false pretenses was correct, the trial court then mistakenly characterized the other person’s name on the coupon as a “representation.” This characterization may have misled the jury, in that the question before them was whether the tendering of the coupon bearing the other person’s name and revalidation sticker was a representation that the coupon was valid. The charge was incorrect and defendant was entitled to a new trial. State v. Roth, 89 N.C. App. 511, 366 S.E.2d 486, 1988 N.C. App. LEXIS 266 (1988).

Evidence Held Sufficient. —

Instructions under this section were proper where the State presented sufficient evidence to show that: (1) defendant falsely represented to victim that he needed money because his car had broken down and he needed to get his mother to the hospital; (2) defendant intended to deceive victim; (3) victims were, in fact, deceived; and (4) defendant thereby attempted to obtain money from them. State v. Hutchinson, 139 N.C. App. 132, 532 S.E.2d 569, 2000 N.C. App. LEXIS 800 (2000).

When defendant presented the victim’s withdrawal slip and driver’s license to the bank while holding the victim hostage in the passenger’s seat, she made a false representation to the bank that the withdrawal was legitimate and had the continuing support of the victim; defendant’s misrepresentation was clearly calculated to mislead and did in fact mislead. State v. Parker, 354 N.C. 268 , 553 S.E.2d 885, 2001 N.C. LEXIS 1090 (2001), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162, 2002 U.S. LEXIS 4081 (2002).

Evidence supported conviction for obtaining property by false pretenses in violation of G.S. 14-100 where it was shown someone else owned caliper’s that were pawned the defendant. State v. Hensley, 156 N.C. App. 634, 577 S.E.2d 417, 2003 N.C. App. LEXIS 234 (2003).

Evidence was sufficient to survive defendant’s motion to dismiss the charge of aiding and abetting obtaining property by false pretenses; defendant did not deny asking a county employee to come to defendant’s residence and fix a toilet on county time, and defendant stated that the employee may have come on county time and in a county vehicle. State v. Sink, 178 N.C. App. 217, 631 S.E.2d 16, 2006 N.C. App. LEXIS 1312 (2006).

Defendant’s passing of a worthless check in order to obtain the mall gift certificates was sufficient to support defendant’s conviction for obtaining property by false pretenses. State v. Cagle, 182 N.C. App. 71, 641 S.E.2d 705, 2007 N.C. App. LEXIS 476 (2007).

Denial of defendant’s motion to dismiss the charge of obtaining property by false pretenses was proper because the State presented sufficient evidence from which the jury could have inferred that defendant knowingly and willingly laundered money through defendant’s personal and business banking accounts in aiding and abetting three others in obtaining property by false pretenses from school system. State v. Estes, 186 N.C. App. 364, 651 S.E.2d 598, 2007 N.C. App. LEXIS 2208 (2007).

Trial court did not err in denying defendant’s motion to dismiss based on insufficiency of the evidence because the evidence was sufficient to justify sending the case to the jury in that the evidence clearly indicated that defendant made a false representation to his two victims regarding the legitimacy of the deposit of counterfeit checks by them into their banking accounts, that it was his intent to do so, and that his deception was effective as defendant obtained money in the transactions. State v. McBride, 187 N.C. App. 496, 653 S.E.2d 218, 2007 N.C. App. LEXIS 2418 (2007).

Evidence that defendant received money for rental of a house that defendant did not own or have the right to rent was sufficient to support a conviction for obtaining property by false pretenses. State v. Moore, 209 N.C. App. 551, 705 S.E.2d 797, 2011 N.C. App. LEXIS 210 , rev'd in part, 365 N.C. 283 , 715 S.E.2d 847, 2011 N.C. LEXIS 813 (2011).

Substantial evidence supported defendant’s conviction for obtaining by false pretense under G.S. 14-100 as he told the same false story to obtain money at other area churches. State v. Twitty, 212 N.C. App. 100, 710 S.E.2d 421, 2011 N.C. App. LEXIS 952 (2011).

Where defendant was charged with obtaining money by a false pretense—selling bread products advertised as gluten-free while knowing they contained gluten—the following evidence was sufficient to support his convictions: 1) representatives of the manufacturer whose bread products defendant sold to the victims testified that all such products contained gluten; 2) all but one sample of bread products sold to the victims tested positive for gluten; 3) victims who suffered from celiac disease, or who were allergic to or intolerant of gluten, testified that they suffered adverse effects after eating the products defendant sold. State v. Seelig, 226 N.C. App. 147, 738 S.E.2d 427, 2013 N.C. App. LEXIS 277 (2013).

Although defendant returned the victim’s check without cashing it, the evidence was sufficient to convict him of obtaining property by false pretenses by selling the victim bread products falsely advertised as being gluten free, as it established that he attempted to obtain value from the victim; proof that he actually obtained value was not an element of the offense. State v. Seelig, 226 N.C. App. 147, 738 S.E.2d 427, 2013 N.C. App. LEXIS 277 (2013).

Evidence that defendant deliberately targeted two elderly women, for the purpose of defrauding each of them by claiming their roofs needed significant repairs when neither woman’s roof needed repair at all was sufficient to support defendant’s convictions for obtaining property by false pretenses. State v. Barker, 240 N.C. App. 224, 770 S.E.2d 142, 2015 N.C. App. LEXIS 369 (2015).

Because the State offered evidence sufficient to allow the jury to determine that two moving company invoices were fraudulent, the State was not obligated to show what happened to the money defendant obtained from the insurer in order to prove her guilt of the offense of obtaining property by false pretenses; sufficient evidence existed to support a finding that the two companies were fictitious and that by submitting the invoices, defendant falsely represented that the invoices were legitimate in an effort to defraud the insurer, and the trial court did not err in denying the motion to dismiss. State v. Holanek, 242 N.C. App. 633, 776 S.E.2d 225, 2015 N.C. App. LEXIS 706 (2015), cert. denied, 579 U.S. 918, 136 S. Ct. 2493, 195 L. Ed. 2d 824, 2016 U.S. LEXIS 4029 (2016).

Trial court did not err by denying defendant’s motion to dismiss because the evidence was sufficient to sustain his conviction for obtaining property by false pretenses where it showed that he signed paperwork representing that he was the lawful owner of the scrap metal he was selling to the victim, the victim paid defendant for the materials he represented were his to sell, and it could be reasonably inferred from the evidence that defendant’s false representation caused the victim to pay him. State v. Hallum, 246 N.C. App. 658, 783 S.E.2d 294, 2016 N.C. App. LEXIS 353 (2016).

Because there was sufficient evidence that defendant knew or had reasonable grounds to believe that the items were stolen, the trial court did not err by denying defendant’s motion to dismiss the charges of possession of stolen property and obtaining property by false pretenses. State v. Jester, 249 N.C. App. 101, 790 S.E.2d 368, 2016 N.C. App. LEXIS 864 (2016).

Where there was substantial evidence that defendant intended to deceive the buyer but fell short of the completed offense because a police officer was not deceived at the time of the sale, the State presented sufficient evidence to establish that defendant attempted to obtain property by false pretenses. State v. Phillips, 252 N.C. App. 194, 797 S.E.2d 704, 2017 N.C. App. LEXIS 135 (2017).

Defendant’s act of advertising and holding the items out as a particular brand, even though he knew the merchandise was counterfeit, established intent on the part of defendant to deceive undercover officers and other potential buyers; thus, defendant had the requisite intent to cheat or defraud, an action which was calculated to deceive buyers, and the trial court properly denied defendant’s motion to dismiss the charge of obtaining property by false pretenses. State v. Phillips, 252 N.C. App. 194, 797 S.E.2d 704, 2017 N.C. App. LEXIS 135 (2017).

Evidence held insufficient to allow a reasonable mind to conclude that defendant made a false representation with intent to defraud so as to support a conviction under this section. State v. Compton, 90 N.C. App. 101, 367 S.E.2d 353, 1988 N.C. App. LEXIS 380 (1988).

Defendant’s motion to dismiss the obtaining property by false pretenses charge against him under G.S. 14-100(a) for insufficiency of the evidence should have been granted where: (1) the indictment alleged that defendant falsely represented that he would earn a six percent return by investing his aunt and uncle’s money; (2) defendant’s brokerage account statement suggested that he made investments with the money with legitimate financial institutions; (3) defendant never represented that he would keep his aunt and uncle’s money separate from his own investments; (4) he did not convert the money to his own use; and (5) even though defendant lost all the money, the evidence merely showed that he seriously overestimated his investing skills and made a promise he was unable to keep. State v. Braswell, 225 N.C. App. 734, 738 S.E.2d 229, 2013 N.C. App. LEXIS 234 (2013).

§ 14-100.1. Possession or manufacture of certain fraudulent forms of identification.

  1. Except as otherwise made unlawful by G.S. 20-30 , it shall be unlawful for any person to knowingly possess or manufacture a false or fraudulent form of identification as defined in this section for the purpose of deception, fraud, or other criminal conduct.
  2. Except as otherwise made unlawful by G.S. 20- 30, it shall be unlawful for any person to knowingly obtain a form of identification by the use of false, fictitious, or fraudulent information.
  3. Possession of a form of identification obtained in violation of subsection (b) of this section shall constitute a violation of subsection (a) of this section.
  4. For purposes of this section, a “form of identification” means any of the following or any replica thereof:
    1. An identification card containing a picture, issued by any department, agency, or subdivision of the State of North Carolina, the federal government, or any other state.
    2. A military identification card containing a picture.
    3. A passport.
    4. An alien registration card containing a picture.
  5. A violation of this section shall be punished as a Class 1 misdemeanor.

History. 2001-461, s. 1; 2001-487, s. 42(a).

§ 14-101. Obtaining signatures by false pretenses.

If any person, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, the false making of which would be punishable as forgery, he shall be punished as a Class H felon.

History. 1871-2, c. 92; Code, s. 1026; Rev., s. 3433; C.S., s. 4278; 1945, c. 635; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1181.

Cross References.

As to forgery, see G.S. 14-119 et seq.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to uttering a false bill of lading, see G.S. 21-42 .

CASE NOTES

Signing or Endorsing Note. —

It is an indictable offense under this section, to procure a person to sign or endorse a note by means of false representation and with intent to cheat and defraud. State v. Johnson, 195 N.C. 506 , 142 S.E. 775, 1928 N.C. LEXIS 135 (1928).

Indictment Must Allege Offense with Certainty. —

An indictment should state with reasonable certainty the offense charged, and an indictment charging the defendant with obtaining money when he obtained a note, is defective. State v. Gibson, 169 N.C. 318 , 85 S.E. 7, 1915 N.C. LEXIS 217 (1915).

§ 14-102. Obtaining property by false representation of pedigree of animals.

If any person shall, with intent to defraud or cheat, knowingly represent any animal for breeding purposes as being of greater degree of any particular strain of blood than such animal actually possesses, and by such representation obtain from any other person money or other thing of value, he shall be guilty of a Class 2 misdemeanor.

History. 1891, c. 94, s. 2; Rev., s. 3307; C.S., s. 4279; 1993, c. 539, s. 40; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-103. Obtaining certificate of registration of animals by false representation.

If any person shall, by any false representation or pretense, with intent to defraud or cheat, obtain from any club, association, society or company for the improvement of the breed of cattle, horses, sheep, swine, fowls or other domestic animals or birds, a certificate of registration of any animal in the herd register of any such association, society or company, or a transfer of any such registration, upon conviction thereof, the person is guilty of a Class 3 misdemeanor.

History. 1891, c. 94, s. 1; Rev. s. 3308; C.S., s. 4280; 1993, c. 539, s. 41; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-104. Obtaining advances under promise to work and pay for same.

If any person, with intent to cheat or defraud another, shall obtain any advances in money, provisions, goods, wares or merchandise of any description from any other person or corporation upon and by color of any promise or agreement that the person making the same will begin any work or labor of any description for such person or corporation from whom the advances are obtained, and the person making the promise or agreement shall willfully fail, without a lawful excuse, to commence or complete such work according to contract, he shall be guilty of a Class 2 misdemeanor.

History. 1889, c. 444; 1891, c. 106; 1905, c. 411; Rev., s. 3431; C.S., s. 4281; 1993, c. 539, s. 42; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to tenant or cropper willfully abandoning landlord after advances have been made, see G.S. 14-358 .

CASE NOTES

Constitutionality. —

The gist of the offense of procuring advances “with intent to cheat and defraud” is not the obtaining of the advances, and afterwards refusing to perform the labor, but in the fraudulent intent at the time of obtaining the advances, and making the promise. This section is constitutional. State v. Norman, 110 N.C. 484 , 14 S.E. 968, 1892 N.C. LEXIS 89 (1892).

Intent Must Be Shown. —

To convict under this section it is necessary to show the fraudulent intent on the part of the promisor; and merely the facts of obtaining the advances, the promise to do the work, and a breach of that promise, are insufficient to sustain a conviction. State v. Griffin, 154 N.C. 611 , 70 S.E. 292, 1911 N.C. LEXIS 321 (1911); State v. Isley, 164 N.C. 491 , 79 S.E. 1105, 1913 N.C. LEXIS 92 (1913).

And Must Be Alleged in Warrant. —

A warrant charging defendant with obtaining a money advance under promise to do certain work, and with failure to perform the work, without alleging that the advance was obtained with intent to cheat or defraud, if fatally defective. State v. Phillips, 228 N.C. 446 , 45 S.E.2d 535, 1947 N.C. LEXIS 335 (1947).

No Day of Grace. —

Where, upon a promise to begin work on the following Monday, the prosecutor made advances to the defendant, and the latter failed, without proper excuse, to begin work at the time stipulated, and was arrested on complaint of prosecutor on Tuesday, defendant’s failure was held to be a failure to begin work within the meaning of the statute. State v. Norman, 110 N.C. 484 , 14 S.E. 968, 1892 N.C. LEXIS 89 (1892).

Motion to Dismiss Properly Denied. —

Superior court did not err in denying defendant’s motion to dismiss misdemeanor charge of failure to work after being paid, as a conflict in the evidence presented created a question for the jury to resolve; moreover, even though the $100 defendant received was intended for purchasing materials, his conviction was supported by the evidence presented, as he still obtained an advance of money, provisions, goods, wares or merchandise on the false promise of completing the work. State v. Octetree, 173 N.C. App. 228, 617 S.E.2d 356, 2005 N.C. App. LEXIS 1923 (2005).

§ 14-105. Obtaining advances under written promise to pay therefor out of designated property.

If any person shall obtain any advances in money, provisions, goods, wares or merchandise of any description from any other person or corporation, upon any written representation that the person making the same is the owner of any article of produce, or of any other specific chattel or personal property, which property, or the proceeds of which the owner in such representation thereby agrees to apply to the discharge of the debt so created, and the owner shall fail to apply such produce or other property, or the proceeds thereof, in accordance with such agreement, or shall dispose of the same in any other manner than is so agreed upon by the parties to the transaction, the person so offending shall be guilty of a misdemeanor, whether he shall or shall not have been the owner of any such property at the time such representation was made. Any person violating any provision of this section shall be guilty of a Class 2 misdemeanor.

History. 1879, cc. 185, 186; Code, s. 1027; 1905, c. 104; Rev., s. 3434; C.S., s. 4282; 1969, c. 1224, s. 9; 1993, c. 539, s. 43; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Constitutionality. —

It is not the failure to pay the debt which is made indictable, but the failure to apply certain property, which, in writing, has been pledged for its payment, and advances made on the faith of such pledge; on this ground it is declared constitutional. State v. Torrence, 127 N.C. 550 , 37 S.E. 268, 1900 N.C. LEXIS 129 (1900); State v. Mooney, 173 N.C. 798 , 92 S.E. 610, 1917 N.C. LEXIS 418 (1917).

Representations Must Be of Existing Facts. —

An indictment for obtaining goods under a false pretense, must be founded on a false representation by the defendant of an existing fact, and the pledging of a check to be received at a subsequent date does not come within the meaning of the section. State v. Whidbee, 124 N.C. 796 , 32 S.E. 318, 1899 N.C. LEXIS 118 (1899).

Indictment Should Charge Exact Terms. —

The indictment should charge in the exact terms of the statute, and on failure to follow the statute it is subject to being quashed. State v. Mooney, 173 N.C. 798 , 92 S.E. 610, 1917 N.C. LEXIS 418 (1917).

Section 14-114 Compared. —

This section is on the same footing as G.S. 14-114 for disposing of mortgaged property. It is not the failure to pay the debt which is made indictable, but the fraud in disposing of or withholding property which the owner has in writing agreed shall be applied in payment of advances made on the faith of such quasi mortgage, to one who has thus pro tanto become the owner thereof, and the subsequent conversion of said property, and diversion of the proceeds to the detriment of the equitable owner and in fraud of his rights. State v. Mooney, 173 N.C. 798 , 92 S.E. 610, 1917 N.C. LEXIS 418 (1917).

§ 14-106. Obtaining property in return for worthless check, draft or order.

Every person who, with intent to cheat and defraud another, shall obtain money, credit, goods, wares or any other thing of value by means of a check, draft or order of any kind upon any bank, person, firm or corporation, not indebted to the drawer, or where he has not provided for the payment or acceptance of the same, and the same be not paid upon presentation, shall be guilty of a Class 3 misdemeanor. The giving of the aforesaid worthless check, draft, or order shall be prima facie evidence of an intent to cheat and defraud.

History. 1907, c. 975; 1909, c. 647; C.S., s. 4283; 1993, c. 539, s. 44; 1994, Ex. Sess., c. 24, s. 14(c); 2013-360, s. 18B.14(a).

Local Modification.

New Hanover: Pub. Loc. 1927, c. 636.

Effect of Amendments.

Session Laws 2013-360, s. 18B.14(a), effective December 1, 2013, substituted “Class 3 misdemeanor” for “Class 2 misdemeanor” in the first sentence. For effective date and applicability, see Editor’s note.

CASE NOTES

It is a misdemeanor for any person knowingly to utter a worthless check in this State and such act involves moral turpitude under this section if done with intent to defraud. Oates v. Wachovia Bank & Trust Co., 205 N.C. 14 , 169 S.E. 869, 1933 N.C. LEXIS 444 (1933).

What Indictment Must Charge. —

In order to convict a defendant under the provisions of this section for obtaining property in return for a worthless check, the indictment must sufficiently charge an intent to cheat or defraud or that the defendant obtained a thing of value. State v. Horton, 199 N.C. 771 , 155 S.E. 866, 1930 N.C. LEXIS 246 (1930).

Signing in Name of Company. —

Upon trial under indictment for violating this section, the evidence tended to show that the check in question was signed in the name of a certain company by the defendant, and was conflicting as to whether the defendant was a member of the concern. It was held, that the question as to whether the defendant was a member of the company when he drew the check in question was not necessarily decisive of his guilt, and an instruction to find him guilty if the jury should find from the evidence that he was not a partner was reversible error. State v. Anderson, 194 N.C. 377 , 139 S.E. 701, 1927 N.C. LEXIS 106 (1927).

The burden of proving the guilt of defendant in violating this section, the worthless check statute, is on the State, and where the check in question has been signed by him in the name of a certain firm and there is evidence tending to show that other checks similarly signed had been paid, with further evidence that defendant’s authority to sign such checks had been revoked, the burden of proving defendant’s guilt is on the State, and raises the question as to the defendant’s good faith for the jury to determine. State v. Anderson, 194 N.C. 377 , 139 S.E. 701, 1927 N.C. LEXIS 106 (1927).

The writing and passing of a worthless check in exchange for property, standing alone, is sufficient to uphold a conviction for obtaining property under false pretenses. State v. Rogers, 346 N.C. 262 , 485 S.E.2d 619, 1997 N.C. LEXIS 301 (1997).

A person may be prosecuted under G.S. 14-100 although this section more specifically fits his alleged activities. A single act or transaction may violate different statutes. State v. Freeman, 59 N.C. App. 84, 295 S.E.2d 619, 1982 N.C. App. LEXIS 2857 (1982), rev'd, 308 N.C. 502 , 302 S.E.2d 779, 1983 N.C. LEXIS 1217 (1983).

Reference to G.S. 14-107 in Judgment Is Harmless Surplusage. —

The reference to G.S. 14-107 in a judgment for violation of this section prior to amendment of judgment did not vitiate that judgment or render the sentence imposed a sentence in excess of that provided by law for the violation of this section, which the defendant was found to have committed. The reference to G.S. 14-107 in the judgment was harmless surplusage. State v. McKinnon, 35 N.C. App. 741, 242 S.E.2d 545, 1978 N.C. App. LEXIS 3072 (1978).

This section and G.S. 14-107 define crimes involving dishonesty or false statement, and therefore defendant’s convictions under these statutes for worthless checks were properly admitted as a matter of law under Fed. R. Evid. 609(a) in an action against him for preparing false tax returns. United States v. Rogers, 853 F.2d 249, 1988 U.S. App. LEXIS 10202 (4th Cir.), cert. denied, 488 U.S. 946, 109 S. Ct. 375, 102 L. Ed. 2d 364, 1988 U.S. LEXIS 4931 (1988).

False Accusation Under This Section. —

Where defendant assistant grocery store manager falsely accused plaintiff of giving a worthless check for merchandise in violation of this section, a criminal offense involving moral turpitude, the law would presume on trial for slander that actual damages were sustained, and plaintiff did not have to prove them. Harris v. Temple, 99 N.C. App. 179, 392 S.E.2d 752, 1990 N.C. App. LEXIS 491 (1990).

§ 14-107. Worthless checks; multiple presentment of checks.

  1. It is unlawful for any person, firm or corporation, to draw, make, utter or issue and deliver to another, any check or draft on any bank or depository, for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, issuing and delivering the check or draft, that the maker or drawer of it:
    1. Has not sufficient funds on deposit in or credit with the bank or depository with which to pay the check or draft upon presentation, or
    2. Has previously presented the check or draft for the payment of money or its equivalent.
  2. It is unlawful for any person, firm or corporation to solicit or to aid and abet any other person, firm or corporation to draw, make, utter or issue and deliver to any person, firm or corporation, any check or draft on any bank or depository for the payment of money or its equivalent, being informed, knowing or having reasonable grounds for believing at the time of the soliciting or the aiding and abetting that the maker or the drawer of the check or draft:
    1. Has not sufficient funds on deposit in, or credit with, the bank or depository with which to pay the check or draft upon presentation, or
    2. Has previously presented the check or draft for the payment of money or its equivalent.
  3. The word “credit” as used in this section means an arrangement or understanding with the bank or depository for the payment of a check or draft.
  4. A violation of this section is a Class I felony if the amount of the check or draft is more than two thousand dollars ($2,000). If the amount of the check or draft is two thousand dollars ($2,000) or less, a violation of this section is a misdemeanor punishable as follows:
    1. Except as provided in subdivision (3) or (4) of this subsection, the person is guilty of a Class 3 misdemeanor. Provided, however, if the person has been convicted three times of violating this section, the person shall on the fourth and all subsequent convictions (i) be punished as for a Class 1 misdemeanor and (ii) be ordered, as a condition of probation, to refrain from maintaining a checking account or making or uttering a check for three years.
    2. Repealed by Session Laws 1999-408, s. 1, effective December 1, 1999.
    3. If the check or draft is drawn upon a nonexistent account, the person is guilty of a Class 1 misdemeanor.
    4. If the check or draft is drawn upon an account that has been closed by the drawer, or that the drawer knows to have been closed by the bank or depository, prior to time the check is drawn, the person is guilty of a Class 1 misdemeanor.
  5. In deciding to impose any sentence other than an active prison sentence, the sentencing judge shall consider and may require, in accordance with the provisions of G.S. 15A-1343 , restitution to the victim for (i) the amount of the check or draft, (ii) any service charges imposed on the payee by a bank or depository for processing the dishonored check, and (iii) any processing fees imposed by the payee pursuant to G.S. 25-3-506 , and each prosecuting witness (whether or not under subpoena) shall be entitled to a witness fee as provided by G.S. 7A-314 which shall be taxed as part of the cost and assessed to the defendant.

History. 1925, c. 14; 1927, c. 62; 1929, c. 273, ss. 1, 2; 1931, cc. 63, 138; 1933, cc. 43, 64, 93, 170, 265, 362, 458; 1939, c. 346; 1949, cc. 183, 332; 1951, c. 356; 1961, c. 89; 1963, cc. 73, 547, 870; 1967, c. 49, s. 1; c. 661, s. 1; 1969, c. 157; c. 876, s. 1; cc. 909, 1014; c. 1224, s. 10; 1971, c. 243, s. 1; 1977, c. 885; 1979, c. 837; 1983, c. 741; 1991, c. 523, s. 1; 1993, c. 374, s. 2; c. 539, ss. 45, 1182; 1994, Ex. Sess., c. 24, s. 14(c); 1995 (Reg. Sess., 1996), c. 742, s. 11; 1999-408, s. 1; 2013-244, s. 4; 2013-360, s. 18B.14(b).

Editor’s Note.

Session Laws 2000-67, s. 15.3A, added Cumberland, Edgecombe, Nash, Onslow, and Wilson to the list of affected localities for Session Laws 1997-443, s. 18.22, as amended by Session Laws 1998-212, s. 16.3, Session Laws 1998-23, s. 11, and Session Laws 1999-237, s. 17.7. The provisions of Session Laws 1997-443, s. 18.22, as amended, have now been codified at G.S. 7A-308 , 7A-346.2, and 14-107.2 at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2013-244, s. 4, effective December 1, 2013, added “multiple presentment of checks” at the end of the section heading; divided former subsection (a) into subsection (a) and subdivision (a)(1), and added (a)(2); divided former subsection (b) into subsection (b) and subdivision (b)(1), and added subdivision (b)(2); and made related stylistic and punctuation changes. For applicability, see Editor’s note.

Session Laws 2013-360, s. 18B.14(b), effective December 1, 2013, substituted “Class 3 misdemeanor” for “Class 2 misdemeanor” in subdivision (d)(1). For applicability, see Editor’s note.

CASE NOTES

This Section Is Constitutional. —

See Mathis v. North Carolina, 266 F. Supp. 841, 1967 U.S. Dist. LEXIS 8431 (M.D.N.C. 1967).

The gravamen of the offense proscribed by this section is the putting into circulation of worthless commercial paper to the public detriment, and not that of the individual payee. State v. Levy, 220 N.C. 812 , 18 S.E.2d 355, 1942 N.C. LEXIS 552 (1942).

It is not the attempted payment of a debt that is condemned by the statute, but the giving of a worthless check and its consequent disturbance of business integrity. State v. White, 230 N.C. 513 , 53 S.E.2d 436, 1949 N.C. LEXIS 353 (1949); State v. Jackson, 243 N.C. 216 , 90 S.E.2d 507, 1955 N.C. LEXIS 582 (1955); State v. Ivey, 248 N.C. 316 , 103 S.E.2d 398, 1958 N.C. LEXIS 491 (1958).

The act made criminal by this section is knowingly putting worthless commercial paper in circulation. Nunn v. Smith, 270 N.C. 374 , 154 S.E.2d 497, 1967 N.C. LEXIS 1360 (1967).

A person may be prosecuted under G.S. 14-100 although this section more specifically fits his alleged activities. A single act or transaction may violate different statutes. State v. Freeman, 59 N.C. App. 84, 295 S.E.2d 619, 1982 N.C. App. LEXIS 2857 (1982), rev'd, 308 N.C. 502 , 302 S.E.2d 779, 1983 N.C. LEXIS 1217 (1983).

The State may prosecute under G.S. 14-100 rather than this section if there is any additional misrepresentation beyond the presentation of a worthless check, even if this section more specifically fits the alleged transaction. State v. Freeman, 79 N.C. App. 177, 339 S.E.2d 56, 1986 N.C. App. LEXIS 1981 , cert. denied, 317 N.C. 338 , 346 S.E.2d 144 (1986).

This section and § 14-106 define crimes involving dishonesty or false statement, and therefore defendant’s convictions under these statutes for worthless checks were properly admitted as a matter of law under Fed. R. Evid. 609(a) in an action against him for preparing false tax returns. United States v. Rogers, 853 F.2d 249, 1988 U.S. App. LEXIS 10202 (4th Cir.), cert. denied, 488 U.S. 946, 109 S. Ct. 375, 102 L. Ed. 2d 364, 1988 U.S. LEXIS 4931 (1988).

Return of a check due to insufficient funds or lack of credit did not constitute prima facie evidence that a person issuing the check had knowledge at the time of issuance that there were insufficient funds or lack of credit with which to pay the check upon presentation. Semones v. Southern Bell Tel. & Tel. Co., 106 N.C. App. 334, 416 S.E.2d 909, 1992 N.C. App. LEXIS 489 (1992).

The writing and passing of a worthless check in exchange for property, standing alone, is sufficient to uphold a conviction for obtaining property under false pretenses. State v. Rogers, 346 N.C. 262 , 485 S.E.2d 619, 1997 N.C. LEXIS 301 (1997).

Fact that check was issued in North Carolina would support jurisdiction under G.S. 15A-134 of worthless check charge, even though an officer of defendant added the date and payee’s name in Florida, and the check was physically transferred in Florida, subject to the condition that payee hold it until officer got back in touch with him. Moreover, officer’s call four days later from North Carolina authorizing payee to deposit the check also supported a conclusion that some part of the delivery occurred in North Carolina. State v. First Resort Properties, 81 N.C. App. 499, 344 S.E.2d 354, 1986 N.C. App. LEXIS 2306 (1986).

The legislature acted within its authority in setting different punishments for offenses under G.S. 14-100 and this section. State v. Freeman, 79 N.C. App. 177, 339 S.E.2d 56, 1986 N.C. App. LEXIS 1981 , cert. denied, 317 N.C. 338 , 346 S.E.2d 144 (1986).

Section Not Applicable to Person Signing Check Under Direction as a Clerical Task. —

A person authorized to sign his name under the printed name of his employer on the employer’s checks, who does so under direction merely as a clerical task to authenticate the checks, cannot be found guilty of violating this section upon the nonpayment of the checks for insufficient funds. State v. Cruse, 253 N.C. 456 , 117 S.E.2d 49, 1960 N.C. LEXIS 665 (1960).

But Employer Is Liable. —

Persons directing their employee to issue checks on the firm’s account, knowing at the time that the firm did not have sufficient funds or credits with the drawee bank to pay the checks on presentation, are guilty of knowingly putting worthless commercial paper in circulation. State v. Cruse, 253 N.C. 456 , 117 S.E.2d 49, 1960 N.C. LEXIS 665 (1960).

Issuance by Corporate Officer. —

A corporate officer who issues a worthless check on behalf of the corporation may be guilty of violating the worthless check statute. Semones v. Southern Bell Tel. & Tel. Co., 106 N.C. App. 334, 416 S.E.2d 909, 1992 N.C. App. LEXIS 489 (1992).

Use of Wrong Check Form Not a Violation of This Section. —

Where the evidence disclosed that the check issued by defendant was returned by the bank, not on account of insufficient funds, but because it was written on the wrong kind of check form, the court should enter a judgment of not guilty in a prosecution for issuing a worthless check. State v. Coppley, 260 N.C. 542 , 133 S.E.2d 147, 1963 N.C. LEXIS 742 (1963).

Instrument Signed by Defendant Held Not a Check. —

If the instrument defendant signed did not contain a promise or order to pay any sum in any amount nor state to whom it was payable and he did not authorize anyone to fill it out in any amount and he did not know by whom or when it was filled out, what he signed was not a check, and he was not guilty of the offense charged against him in the warrant under this section. State v. Ivey, 248 N.C. 316 , 103 S.E.2d 398, 1958 N.C. LEXIS 491 (1958).

Drawing Out Money on Insufficient Funds. —

The offense of passing a worthless check under this section may be accomplished by one who has an ordinary checking account, either personal or drawn on a legitimate business, and draws out money knowing that the funds in the account are insufficient to pay the check upon presentation. This would not involve a misrepresentation beyond the value of the check. State v. Freeman, 79 N.C. App. 177, 339 S.E.2d 56, 1986 N.C. App. LEXIS 1981 , cert. denied, 317 N.C. 338 , 346 S.E.2d 144 (1986).

The drawing and delivery of a check to a third person, without more, is a representation that drawer has funds sufficient to insure payment upon presentation, and if known to be untrue, is a false pretense. Nunn v. Smith, 270 N.C. 374 , 154 S.E.2d 497, 1967 N.C. LEXIS 1360 (1967).

Postdated Check. —

A postdated check given for a past-due account and so accepted is not a representation importing a criminal liability if untrue that comes within the intent and meaning of the “bad check law,” making it a misdemeanor for a person to issue and deliver to another any check on any bank or depository for the payment of money or its equivalent knowing at the time that he has not sufficient funds on deposit or credit with the bank or depository for its payment. State v. Crawford, 198 N.C. 522 , 152 S.E. 504, 1930 N.C. LEXIS 397 (1930).

Consent Not a Defense. —

Regardless of the consent of anyone, the giving of a worthless check in contravention of this section is a crime. State v. Jackson, 243 N.C. 216 , 90 S.E.2d 507, 1955 N.C. LEXIS 582 (1955).

If at the time of delivering a check to the payee the maker knows that he has neither funds nor credit to pay the check upon presentation, the fact that the payee agrees that the check would not be presented for collection, would not constitute a defense. State v. Jackson, 243 N.C. 216 , 90 S.E.2d 507, 1955 N.C. LEXIS 582 (1955).

Entrapment Not a Defense. —

Defense of entrapment on a charge of giving a worthless check cannot be maintained where the inducement to give the worthless check came from a person unconnected with the State. State v. Jackson, 243 N.C. 216 , 90 S.E.2d 507, 1955 N.C. LEXIS 582 (1955).

Indictment. —

In order to charge a statutory offense (the giving of a bad check), the indictment should set forth all the essential requisites therein prescribed, and no element should be left to inference or implication, and where the indictment is defective a demurrer is good. State v. Edwards, 190 N.C. 322 , 130 S.E. 10, 1925 N.C. LEXIS 68 (1925).

Warrant. —

A warrant charging that defendant, trading under a trade name, did, on a specified date, unlawfully and willfully issue a check knowing at the time that the named defendant, or the named defendant trading under the designated trade name, or the designated firm, did not have sufficient funds or credit to pay the check upon presentation, is sufficient and is not objectionable on the ground that the offense was charged disjunctively or alternately. State v. Jackson, 243 N.C. 216 , 90 S.E.2d 507, 1955 N.C. LEXIS 582 (1955).

Prior Convictions Must Be Alleged in Warrant or Indictment. —

Where a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute in order to subject the accused to the higher penalty. State v. Williams, 21 N.C. App. 70, 203 S.E.2d 399, 1974 N.C. App. LEXIS 1713 (1974).

Where there is no allegation in the warrant that defendant had been convicted three prior times of that offense, nor is there any other evidence in the record of that circumstance, a 90-day sentence exceeds the permissible statutory limit. State v. McCotter, 18 N.C. App. 411, 197 S.E.2d 50, 1973 N.C. App. LEXIS 1887 (1973).

Fatal Variance. —

An indictment charging the defendant with obtaining money on a day named by the issuance of a worthless check in violation of the statute, and evidence that it was given for the hire of an automobile, ten days later, are at fatal variance, and will not support a conviction. State v. Corpening, 191 N.C. 751 , 133 S.E. 14, 1926 N.C. LEXIS 170 (1926).

The indictment charged that defendant issued a worthless check knowing at the time that he did not have sufficient funds or credit for its payment. The proof was that defendant issued a check of a corporation of which he was an executive officer, and that the corporation did not have sufficient funds or credit for its payment. There is a fatal variance between allegation and proof, and defendant’s motion to nonsuit should have been allowed. State v. Dowless, 217 N.C. 589 , 9 S.E.2d 18, 1940 N.C. LEXIS 301 (1940).

What State Must Prove. —

In a prosecution under this statute the State must prove that the maker of the check had neither sufficient funds on deposit in, nor credit with, the bank on which the check was drawn to pay it on presentation. State v. Jackson, 243 N.C. 216 , 90 S.E.2d 507, 1955 N.C. LEXIS 582 (1955).

Right to Trial by Jury May Not Be Waived. —

Where the defendant in a criminal action enters the plea of “not guilty,” the requirement of N.C. Const., Art. I, § 13, (now Art. I, § 24) of trial by jury may not be waived by the accused nor another method substituted by agreement, and where a defendant is indicted for violating the statute commonly known as the “bad check law,” an agreement between the State and the accused that the judge may find the facts under a plea of “not guilty,” will be disregarded on appeal and the case remanded to be tried according to law. State v. Crawford, 197 N.C. 513 , 149 S.E. 729, 1929 N.C. LEXIS 287 (1929).

Instruction held proper. State v. Levy, 220 N.C. 812 , 18 S.E.2d 355, 1942 N.C. LEXIS 552 (1942).

Consideration of Restitution Award Factors Under Subsection (e). —

Although G.S. 15A-1340.36 (a) expressly does not require the trial court to make findings of fact or conclusions of law on the restitution award factors such as defendant’s resources, ability to earn, support obligations, and any other matters that pertain to defendant’s ability to pay, a trial court erred when it ordered restitution without considering the required statutory factors pursuant to G.S. 15A-1340.36 and G.S. 14-107 . State v. Mucci, 163 N.C. App. 615, 594 S.E.2d 411, 2004 N.C. App. LEXIS 601 (2004).

There was sufficient evidence to submit charges of felonious issuing of a worthless check under G.S. 14-107(a) to the jury where there was evidence that defendant had issued the checks with insufficient funds and that other checks issued within the same time period had been returned for insufficient funds and that defendant actually requested that the payee hold the checks and not deposit them immediately. This was sufficient circumstantial evidence from which to infer that defendant knew that at the time he issued the checks they were worthless. State v. Mucci, 163 N.C. App. 615, 594 S.E.2d 411, 2004 N.C. App. LEXIS 601 (2004).

OPINIONS OF ATTORNEY GENERAL

The Consumer Finance Act applies to a check cashing company which cashes a check, and for a fee, agrees to defer presentment of the check until sufficient funds are deposited into the customer’s bank account to cover the amount of the check, if the amount of the loan is $10,000 or less and if the fee charged by the company exceeds the charges permitted under Chapter 24. In this event, the company will be subject to all provisions of the Act, including the penal provisions of G.S. 53-166(c) . It also appears that these transactions violate this section, and may violate Truth-in-Lending requirements regarding disclosure. See opinion of the Attorney General to Mr. George J. Franks, Attorney at Law, Cumberland County Sheriff’s Office, Fayetteville, 60 N.C. Op. Att'y Gen. 86 (1992).

§ 14-107.1. Prima facie evidence in worthless check cases.

  1. Unless the context otherwise requires, the following definitions apply in this section:
    1. Check Passer. — A natural person who draws, makes, utters, or issues and delivers, or causes to be delivered to another any check or draft on any bank or depository for the payment of money or its equivalent.
    2. Acceptor. — A person, firm, corporation or any authorized employee thereof accepting a check or draft from a check passer.
    3. Check Taker. — A natural person who is an acceptor, or an employee or agent of an acceptor, of a check or draft in a face-to-face transaction.
  2. In prosecutions under G.S. 14-107 the prima facie evidence provisions of subsections (d) and (e) apply if all the conditions of subdivisions (1) through (7) below are met. The prima facie evidence provisions of subsection (e) apply if only conditions (5) through (7) are met. The conditions are:
    1. The check or draft is delivered to a check taker.
    2. The name and mailing address of the check passer are written or printed on the check or draft, and the check taker or acceptor shall not be required to write or print the race or gender of the check passer on the check or draft.
    3. The check taker identifies the check passer at the time of accepting the check by means of a North Carolina driver’s license, a special identification card issued pursuant to G.S. 20-37.7 , or other reliable serially numbered identification card containing a photograph and mailing address of the person in question.
    4. The license or identification card number of the check passer appears on the check or draft.
    5. After dishonor of the check or draft by the bank or depository, the acceptor sends the check passer a letter by certified mail, to the address recorded on the check, identifying the check or draft, setting forth the circumstances of dishonor, and requesting rectification of any bank error or other error in connection with the transaction within 10 days.An acceptor may advise the check passer in a letter that legal action may be taken against him if payment is not made within the prescribed time period. Such letter, however, shall be in a form which does not violate applicable provisions of Article 2 of Chapter 75.
    6. The acceptor files the affidavit described in subdivision (7) with a judicial official, as defined in G.S. 15A-101(5) , before issuance of the first process or pleading in the prosecution under G.S. 14-107 . The affidavit must be kept in the case file (attached to the criminal pleading in the case).
    7. The affidavit of the acceptor, sworn to before a person authorized to administer oaths, must:
      1. State the facts surrounding acceptance of the check or draft. If the conditions set forth in subdivisions (1) through (5) have been met, the specific facts demonstrating observance of those conditions must be stated.
      2. Indicate that at least 15 days have elapsed since the mailing of the letter required under subdivision (5) and that the check passer has failed to rectify any error that may have occurred with respect to the dishonored check or draft.
      3. Have attached a copy of the letter sent to the check passer pursuant to subdivision (5).
      4. Have attached the receipt, or a copy of it, from the United States Postal Service certifying the mailing of the letter described in subdivision (5).
      5. Have attached the check or draft or a copy thereof, including any stamp, marking or attachment indicating the reason for dishonor.
  3. In prosecutions under G.S. 14-107 , where the check or draft is delivered to the acceptor by mail, or delivered other than in person, the prima facie evidence rule in subsections (d) and (e) shall apply if all the conditions below are met. The prima facie evidence rule in subsection (e) shall apply if conditions (5) through (7) below are met. The conditions are:
    1. The check or draft is delivered to the acceptor by United States mail, or by some person or instrumentality other than a check passer.
    2. The name and mailing address of the check passer are recorded on the check or draft.
    3. The acceptor has previously identified the check passer, at the time of opening the account, establishing the course of dealing, or initiating the lease or contract, by means of a North Carolina driver’s license, a special identification card issued pursuant to G.S. 20-37.7 , or other reliable serially numbered identification card containing a photograph and mailing address of the person in question, and obtained the signature of the person or persons who will be making payments on the account, course of dealing, lease or contract, and such signature is retained in the account file.
    4. The acceptor compares the name, address, and signature on the check with the name, address, and signature on file in the account, course of dealing, lease, or contract, and notes that the information contained on the check corresponds with the information contained in the file, and the signature on the check appears genuine when compared to the signature in the file.
    5. After dishonor of the check or draft by the bank or depository, the acceptor sends the check passer a letter by certified mail to the address recorded on the check or draft identifying the check or draft, setting forth the circumstances of dishonor and requesting rectification of any bank error or other error in connection with the transaction within 10 days.An acceptor may advise the check passer in a letter that legal action may be taken against him if payment is not made within the prescribed time period. Such letter, however, shall be in a form which does not violate applicable provisions of Article 2 of Chapter 75.
    6. The acceptor files the affidavits described in subdivision (7) of this subsection with a judicial official, as defined in G.S. 15A-101(5) , before issuance of the first process or pleading in the prosecution under G.S. 14-107 . The affidavit must be kept in the case file (attached to the criminal pleading in the case).
    7. The affidavit of the acceptor, sworn to before a person authorized to administer oaths, must:
      1. State the facts surrounding acceptance of the check or draft. If the conditions set forth in subdivisions (1) through (5) have been met, the specific facts demonstrating observance of those conditions must be stated.
      2. Indicate that at least 15 days have elapsed since the mailing of the letter required under subdivision (5) and that the check passer has failed to rectify any error that may have occurred with respect to the dishonored check or draft.
      3. Have attached a copy of the letter sent to the check passer pursuant to subdivision (5).
      4. Have attached the receipt, or a copy of it, from the United States Postal Service certifying the mailing of the letter described in subdivision (5).
      5. Have attached the check or draft or a copy thereof, including any stamp, marking or attachment indicating the reason for dishonor.
  4. If the conditions of subsection (b) or (c) have been met, proof of meeting them is prima facie evidence that the person charged was in fact the identified check passer.
  5. If the bank or depository dishonoring a check or draft has returned it in the regular course of business stamped or marked or with an attachment indicating the reason for dishonor, the check or draft and any attachment may be introduced in evidence and constitute prima facie evidence of the facts of dishonor if the conditions of subdivisions (5) through (7) of subsection (b) or subdivisions (5) through (7) of subsection (c) have been met. The reason for dishonor may be indicated with terms that include, but are not limited to, the following: “insufficient funds,” “no account,” “account closed,” “NSF,” “uncollected,” “unable to locate,” “stale dated,” “postdated,” “endorsement irregular,” “signature irregular,” “nonnegotiable,” “altered,” “unable to process,” “refer to maker,” “duplicate presentment,” “forgery,” “noncompliant,” or “UCD noncompliant.” The fact that the check or draft was returned dishonored may be received as evidence that the check passer had no credit with the bank or depository for payment of the check or draft.
  6. An affidavit by an employee of a bank or depository who has personal knowledge of the facts stated in the affidavit sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in a hearing or trial pursuant to a prosecution under G.S. 14-107 in the District Court Division of the General Court of Justice with respect to the facts of dishonor of the check or draft, including the existence of an account, the date the check or draft was processed, whether there were sufficient funds in an account to pay the check or draft, and other related matters. If the defendant requests that the bank or depository employee personally testify in the hearing or trial, the defendant may subpoena the employee. The defendant shall be provided a copy of the affidavit prior to trial and shall have the opportunity to subpoena the affiant for trial.

History. 1979, c. 615, s. 1; 1985, c. 650, s. 1; 1989, c. 421; 1997-149, s. 1; 2013-244, s. 5.

Effect of Amendments.

Session Laws 2013-244, s. 5, effective December 1, 2013, in subsection (e), deleted “(‘insufficient funds,’ ‘no account,’ ‘account closed’ or words of like meaning)” following “reason for dishonor” in the first sentence, and added the second sentence. For applicability, see Editor’s note.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 389.

CASE NOTES

Return of a check due to insufficient funds or lack of credit did not constitute prima facie evidence that a person issuing the check had knowledge at the time of issuance that there were insufficient funds or lack of credit with which to pay the check upon presentation. Semones v. Southern Bell Tel. & Tel. Co., 106 N.C. App. 334, 416 S.E.2d 909, 1992 N.C. App. LEXIS 489 (1992).

OPINIONS OF ATTORNEY GENERAL

This section does not provide the exclusive method of proving a violation of G.S. 14-107 . See opinion of Attorney General to Ed McClearen, Assistant District Attorney, 10th Judicial District, 49 N.C. Op. Att'y Gen. 168 (1980).

§ 14-107.2. Program for collection in worthless check cases.

  1. As used in this section, the terms “check passer” and “check taker” have the same meaning as defined in G.S. 14-107.1 . (a1) The Administrative Office of the Courts may authorize the establishment of a program for the collection of worthless checks in any prosecutorial district where economically feasible. The Administrative Office of the Courts may consider the following factors when making a feasibility determination:
    1. The population of the district.
    2. The number of worthless check prosecutions in the district.
    3. The availability of personnel and equipment in the district.
  2. Upon authorization by the Administrative Office of the Courts, a district attorney may establish a program for the collection of worthless checks in cases that may be prosecuted under G.S. 14-107 . The district attorney may establish a program for the collection of worthless checks in cases that would be punishable as misdemeanors, in cases that would be punishable as felonies, or both. The district attorney shall establish criteria for the types of worthless check cases that will be eligible under the program. (b1) A community mediation center may establish and charge fees for its services in the collection of worthless checks as part of a program established under this section and may assist the Administrative Office of the Courts and district attorneys in the establishment of worthless check programs in any districts in which worthless check programs have not been established.
  3. If a check passer participates in the program by paying the fee under G.S.7A-308(c) and providing restitution to the check taker for (i) the amount of the check or draft, (ii) any service charges imposed on the check taker by a bank or depository for processing the dishonored check, and (iii) any processing fees imposed by the check taker pursuant to G.S. 25-3-506 , then the district attorney shall not prosecute the worthless check case under G.S. 14-107 .
  4. The Administrative Office of the Courts shall establish procedures for remitting the fee and providing restitution to the check taker.
  5. Repealed by Session Laws 2003-377, s. 3, effective August 1, 2003.

History. 1997-443, s. 18.22(b); 1998-23, s. 11(a); 1998-212, s. 16.3(a); 1999-237, s. 17.7; 2000-67, s. 15.3A(a); 2001-61, s. 1; 2003-377, ss. 1, 2, 3; 2011-145, s. 31.24(a).

Cross References.

As to the Collection of Worthless Checks Fund, see G.S. 7A-308(c).

As to report on implement of the worthless check collection program, see G.S. 7A-346.2 .

Editor’s Note.

Session Laws 1997-443, s. 18.22(b) has been codified as this section at the direction of the Revisor of Statutes. Initially, Session Laws 1997-443, s. 18.22(d) provided that s. 18.22(b) would apply to Columbus, Durham and Rockingham Counties only, and s. 18.22(e) provided that the act would become effective October 1, 1997, and would expire June 30, 1998. Session Laws 1998-23, s. 11(a) amended Session Laws 1997-443, s. 18.22(e) to provide that s. 18.22 would expire when the 1998 Appropriations Act became law; however, this provision was repealed by Session Laws 1998-212, s. 16.3(d). Section 16.3(a) of Session Laws 1998-212 provided that Session Laws 1997-443, s. 18.22 would expire June 30, 1999, and s. 16.3(d) of that act added Wake to the list of counties to which Session Laws 1997-443, s. 18.22 was applicable. Session Laws 1999-237, s. 17.7(a) deleted the sunset for Session Laws 1997-443, s. 18.22, as amended, and added Brunswick, Bladen, New Hanover, and Pender to the list of counties. Session Laws 2000-67, s. 15.3A, added Cumberland, Edgecombe, Nash, Onslow, and Wilson to the list of counties.

Effect of Amendments.

Session Laws 2011-145, s. 31.24(a), effective July 1, 2011, added subsection (b1).

§ 14-108. Obtaining property or services from slot machines, etc., by false coins or tokens.

Any person who shall operate, or cause to be operated, or who shall attempt to operate, or attempt to cause to be operated any automatic vending machine, slot machine, coin-box telephone or other receptacle designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, by means of a slug or any false, counterfeited, mutilated, sweated or foreign coin, or by any means, method, trick or device whatsoever not lawfully authorized by the owner, lessee or licensee, of such machine, coin-box telephone or receptacle, or who shall take, obtain or receive from or in connection with any automatic vending machine, slot machine, coin-box telephone or other receptacle designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, any goods, wares, merchandise, gas, electric current, article of value, or the use or enjoyment of any telephone or telegraph facilities or service, or of any musical instrument, phonograph or other property, without depositing in and surrendering to such machine, coin-box telephone or receptacle lawful coin of the United States of America to the amount required therefor by the owner, lessee or licensee of such machine, coin-box telephone or receptacle, shall be guilty of a Class 2 misdemeanor.

History. 1927, c. 68, s. 1; 1969, c. 1224, s. 3; 1993, c. 539, s. 46; c. 553, s. 8; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-109. Manufacture, sale, or gift of devices for cheating slot machines, etc.

Any person who, with intent to cheat or defraud the owner, lessee, licensee or other person entitled to the contents of any automatic vending machine, slot machine, coin-box telephone or other receptacle, depository or contrivance designed to receive lawful coin of the United States of America in connection with the sale, use or enjoyment of property or service, or who, knowing that the same is intended for unlawful use, shall manufacture for sale, or sell or give away any slug, device or substance whatsoever intended or calculated to be placed or deposited in any such automatic vending machine, slot machine, coin-box telephone or other such receptacle, depository or contrivance, shall be guilty of a Class 2 misdemeanor.

History. 1927, c. 68, s. 2; 1969, c. 1224, s. 3; 1993, c. 539, s. 47; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-110. Defrauding innkeeper or campground owner.

No person shall, with intent to defraud, obtain food, lodging, or other accommodations at a hotel, inn, boardinghouse, eating house, or campground. Whoever violates this section shall be guilty of a Class 2 misdemeanor. Obtaining such lodging, food, or other accommodation by false pretense, or by false or fictitious show of pretense of baggage or other property, or absconding without paying or offering to pay therefor, or surreptitiously removing or attempting to remove such baggage, shall be prima facie evidence of such fraudulent intent, but this section shall not apply where there has been an agreement in writing for delay in such payment.

History. 1907, c. 816; C.S., s. 4284; 1969, c. 947; c. 1224, s. 3; 1985, c. 391; 1993, c. 539, s. 48; 1994, Ex. Sess., c. 24, s. 14(c).

Local Modification.

Buncombe, Franklin, Jackson: 1933, c. 531; Lee: 1937, c. 168; Martin: 1931, c. 9; Pitt: 1929, c. 103; Rockingham: 1939, c. 53; Wake, Watauga: 1931, c. 9.

CASE NOTES

Constitutionality. —

The misdemeanor prescribed by this section expressly applies, when the contract has been made with a fraudulent intent, and this intent also exists in surreptitiously absconding and removing baggage without having paid the bill, and this statute is not inhibited by N.C. Const., Art. I, § 16 (now Art. I, § 28) as to imprisonment for the mere nonpayment of a debt, either in a civil action or by indictment. State v. Barbee, 187 N.C. 703 , 122 S.E. 753, 1924 N.C. LEXIS 381 (1924).

Boardinghouse Defined. —

One who has not been licensed to keep a boardinghouse, and who does not hold his place out as such, but who has received a boarder in his home, for pay, is not the keeper of a boardinghouse. State v. McRae, 170 N.C. 712 , 86 S.E. 1039, 1915 N.C. LEXIS 470 (1915).

Prosecution of Guest for Refusing to Pay without Deduction for Unwarranted Charges. —

Evidence tending to show that the general manager of a motel in complete charge of its operations had a car towed from its premises under the mistaken belief that the owner of the car was not a guest, and that when the guest refused to pay his bill without deducting the unwarranted towing charges, instituted a prosecution of the guest under this section, is held sufficient to be submitted to the jury on the issue of respondeat superior in an action against the motel for malicious prosecution, the acts of the manager having been performed in furtherance of the motel’s business. Ross v. Dellinger, 262 N.C. 589 , 138 S.E.2d 226, 1964 N.C. LEXIS 698 (1964).

Evidence Sufficient to Convict. —

Where there is evidence that one having received accommodation at a hotel left with his baggage without notice to the proprietor, and without having paid his bill, it is sufficient to convict under this section, the question of intent being for the jury. State v. Hill, 166 N.C. 298 , 81 S.E. 408, 1914 N.C. LEXIS 398 (1914).

Witness’s testimony that she had in her possession her employer’s valid check bearing the same number as the check defendant attempted to cash, and that the font of the check that he presented to a bank teller was different from the font used by her employer in printing its checks, was sufficient to convict defendant of attempting to obtain property by false pretenses. State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163, 2012 N.C. App. LEXIS 515 (2012), writ denied, 367 N.C. 790 , 766 S.E.2d 670, 2014 N.C. LEXIS 1139 (2014).

Evidence Insufficient for Conviction. —

In order to convict under the provisions of this section, it is necessary for the State to show the fraudulent intent of the one who has failed or refused to pay for his lodging or food at an inn, boardinghouse, etc., or the like intent as to his surreptitiously leaving with his baggage without having paid his bill; and evidence tending only to show his inability to pay, under the circumstances, but his arrangement with the keeper of the inn or boardinghouse to pay in a certain way and within a fixed period after leaving, and his payment in part, and that his wife, remaining longer than he, thereafter took away his baggage without his knowledge or participation therein, and in the separation following he received no benefit therefrom, is insufficient for a conviction of the statutory offense. State v. Barbee, 187 N.C. 703 , 122 S.E. 753, 1924 N.C. LEXIS 381 (1924).

§ 14-111. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(4).

§ 14-111.1. Obtaining ambulance services without intending to pay therefor — Buncombe, Haywood and Madison Counties.

Any person who with the intent to defraud shall obtain ambulance services for himself or other persons without intending at the time of obtaining such services to pay a reasonable charge therefor, shall be guilty of a Class 2 misdemeanor. If a person or persons obtaining such services willfully fails to pay for the services within a period of 90 days after request for payment, such failure shall raise a presumption that the services were obtained with the intention to defraud, and with the intention not to pay therefor.

This section shall apply only to the Counties of Buncombe, Haywood and Madison.

History. 1965, c. 976, s. 1; 1969, c. 1224, s. 4; 1993, c. 539, s. 49; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-111.2. Obtaining ambulance services without intending to pay therefor — certain named counties.

Any person who with intent to defraud shall obtain ambulance services without intending at the time of obtaining such services to pay, if financially able, any reasonable charges therefor shall be guilty of a Class 2 misdemeanor. A determination by the court that the recipient of such services has willfully failed to pay for the services rendered for a period of 90 days after request for payment, and that the recipient is financially able to do so, shall raise a presumption that the recipient at the time of obtaining the services intended to defraud the provider of the services and did not intend to pay for the services.

The section shall apply to Alamance, Anson, Ashe, Beaufort, Cabarrus, Caldwell, Camden, Carteret, Caswell, Catawba, Chatham, Cherokee, Clay, Cleveland, Cumberland, Davie, Duplin, Durham, Forsyth, Gaston, Graham, Guilford, Halifax, Haywood, Henderson, Hoke, Hyde, Iredell, Macon, Mecklenburg, Montgomery, New Hanover, Onslow, Orange, Pasquotank, Pender, Person, Polk, Randolph, Robeson, Rockingham, Scotland, Stanly, Surry, Transylvania, Union, Vance, Washington, Wilkes and Yadkin Counties only.

History. 1967, c. 964; 1969, cc. 292, 753; c. 1224, s. 4; 1971, cc. 125, 203, 300, 496; 1973, c. 880, s. 2; 1977, cc. 63, 144; 1983, c. 42, s. 1; 1985, c. 335, s. 1; 1987 (Reg. Sess., 1988), c. 910, s. 1; 1993, c. 539, s. 50; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 9, s. 2; 1999-64, s. 1; 2000-15, s. 1; 2001-106, s. 1.

§ 14-111.3. Making unneeded ambulance request in certain counties.

It shall be unlawful for any person or persons to willfully obtain or attempt to obtain ambulance service that is not needed, or to make a false request or report that an ambulance is needed. Every person convicted of violating this section shall be guilty of a Class 3 misdemeanor.

This section shall apply only to the Counties of Alamance, Ashe, Buncombe, Cabarrus, Camden, Carteret, Cherokee, Clay, Cleveland, Davie, Duplin, Durham, Graham, Greene, Halifax, Haywood, Hoke, Macon, Madison, New Hanover, Onslow, Pender, Polk, Robeson, Rockingham, Washington, Wilkes and Yadkin.

History. 1965, c. 976, s. 2; 1971, c. 496; 1977, c. 96; 1983, c. 42, s. 2; 1985, c. 335, s. 2; 1987 (Reg. Sess., 1988), c. 910, s. 2; 1989, c. 514; 1989 (Reg. Sess., 1990), c. 834; 1993, c. 539, s. 51; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 9, s. 3; 1999-64, s. 2; 2000-15, s. 2; 2001-106, s. 2.

§ 14-111.4. Misuse of 911 system.

It is unlawful for an individual who is not seeking public safety assistance, is not providing 911 service, or is not responding to a 911 call to access or attempt to access the 911 system for a purpose other than an emergency communication. A person who knowingly violates this section commits a Class 1 misdemeanor.

History. 2007-383, s. 1(b); 2013-286, s. 1.

Effect of Amendments.

Session Laws 2013-286, s. 1, effective December 1, 2013, substituted “Class 1 misdemeanor” for “Class 3 misdemeanor” in the present last sentence, and deleted the former last sentence, which read: “If a person knowingly accesses or attempts to access the 911 system for the purpose of avoiding a charge for voice communications service, as defined in G.S. 62A-40 , and the value of the charge exceeds one hundred dollars ($100.00), the person commits a Class 1 misdemeanor.” For applicability, see Editor’s note.

§ 14-112. Obtaining merchandise on approval.

If any person, with intent to cheat and defraud, shall solicit and obtain from any merchant any article of merchandise on approval, and shall thereafter, upon demand, refuse or fail to return the same to such merchant in an unused and undamaged condition, or to pay for the same, such person so offending shall be guilty of a Class 2 misdemeanor. Evidence that a person has solicited a merchant to deliver to him any article of merchandise for examination or approval and has obtained the same upon such solicitation, and thereafter, upon demand, has refused or failed to return the same to such merchant in an unused and undamaged condition, or to pay for the same, shall constitute prima facie evidence of the intent of such person to cheat and defraud, within the meaning of this section: Provided, this section shall not apply to merchandise sold upon a written contract which is signed by the purchaser.

History. 1911, c. 185; C.S., s. 4285; 1941, c. 242; 1969, c. 1224, s. 2; 1993, c. 539, s. 52; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-112.1. [Repealed]

Repealed by Session Laws 1967, c. 1088, s. 2.

§ 14-112.2. Exploitation of an older adult or disabled adult.

  1. The following definitions apply in this section:
    1. Disabled adult. — A person 18 years of age or older or a lawfully emancipated minor who is present in the State of North Carolina and who is physically or mentally incapacitated as defined in G.S. 108A-101(d).
    2. Older adult. — A person 65 years of age or older.
  2. It is unlawful for a person: (i) who stands in a position of trust and confidence with an older adult or disabled adult, or (ii) who has a business relationship with an older adult or disabled adult to knowingly, by deception or intimidation, obtain or use, or endeavor to obtain or use, an older adult’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the older adult or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the older adult or disabled adult.
  3. It is unlawful for a person to knowingly, by deception or intimidation, obtain or use, endeavor to obtain or use, or conspire with another to obtain or use an older adult’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the older adult or disabled adult of the use, benefit, or possession of the funds, assets, or property, or benefit someone other than the older adult or disabled adult. This subsection shall not apply to a person acting within the scope of that person’s lawful authority as the agent for the older adult or disabled adult.
  4. A violation of subsection (b) of this section is punishable as follows:
    1. If the funds, assets, or property involved in the exploitation of the older adult or disabled adult is valued at one hundred thousand dollars ($100,000) or more, then the offense is a Class F felony.
    2. If the funds, assets, or property involved in the exploitation of the older adult or disabled adult is valued at twenty thousand dollars ($20,000) or more but less than one hundred thousand dollars ($100,000), then the offense is a Class G felony.
    3. If the funds, assets, or property involved in the exploitation of the older adult or disabled adult is valued at less than twenty thousand dollars ($20,000), then the offense is a Class H felony.
  5. A violation of subsection (c) of this section is punishable as follows:
    1. If the funds, assets, or property involved in the exploitation of the older adult or disabled adult is valued at one hundred thousand dollars ($100,000) or more, then the offense is a Class G felony.
    2. If the funds, assets, or property involved in the exploitation of the older adult or disabled adult is valued at twenty thousand dollars ($20,000) or more but less than one hundred thousand dollars ($100,000), then the offense is a Class H felony.
    3. If the funds, assets, or property involved in the exploitation of the older adult or disabled adult is valued at less than twenty thousand dollars ($20,000), then the offense is a Class I felony.
  6. If a person is charged with a violation of this section that involves funds, assets, or property valued at more than five thousand dollars ($5,000), the district attorney may file a petition in the pending criminal proceeding before the court with jurisdiction over the pending charges to freeze the funds, assets, or property of the defendant in an amount up to one hundred fifty percent (150%) of the alleged value of funds, assets, or property in the defendant’s pending criminal proceeding for purposes of restitution to the victim. The standard of proof required to freeze the defendant’s funds, assets, or property shall be by clear and convincing evidence. The procedure for petitioning the court under this subsection shall be governed by G.S. 14-112.3 .

History. 2005-272, s. 2; 2006-264, s. 99; 2013-203, s. 1; 2013-337, s. 1.

Cross References.

As to protection of disabled and older adults from financial exploitation, see Article 6A of chapter 108A, G.S. 108A-112 et seq.

Effect of Amendments.

Session Laws 2006-264, s. 99, effective January 1, 2007, substituted “that person’s” for “their” near the end of subsection (c).

Session Laws 2013-203, s. 1, effective October 1, 2013, added subsection (f). For applicability, see Editor’s note.

Session Laws 2013-337, s. 1, effective December 1, 2013, substituted “older adult” for “elder adult” everywhere it appears in subsections (a) through (c), and “older adult” for “elderly person” everywhere it appears in subsections (d) and (e); in subdivision (a)(2), substituted “65 years” for “60 years” and deleted “who is not able to provide for the social, medical, psychiatric, psychological, financial, or legal services necessary to safeguard the person’s rights and resources and to maintain the person’s physical and mental well-being” at the end; and substituted “person to knowingly, by deception or intimidation” for “person, who knows or reasonably should know that an elder adult or disabled adult lacks the capacity to consent” in subsection (c). For applicability, see Editor’s note.

§ 14-112.3. Asset freeze or seizure; proceeding.

  1. For purposes of this section, the term “assets” includes funds and property as well as other assets that may be involved in a violation of G.S. 14-112.2 .
  2. Whenever it appears by clear and convincing evidence that any defendant is about to or intends to divest himself or herself of assets in a manner that would render the defendant insolvent for purposes of restitution, the district attorney may make an application to the court to freeze or seize the assets of the defendant. Upon a showing by clear and convincing evidence in the hearing, the court shall issue an order to freeze or seize the assets of the defendant in the amount calculated pursuant to G.S. 14-112.2(f). The procedure for petitioning the court under this section shall be governed by G.S. 1A-1 , Rule 65, except as otherwise provided in this section. (b1) An order to freeze or seize assets shall direct the appropriate State or local law enforcement agency with territorial jurisdiction over the assets to serve and execute the order as follows:
    1. Personal property or financial assets in the defendant’s possession that are not held by a financial institution shall be seized and held until final disposition as directed by the order.
    2. If the asset is an account, intangible, or other financial asset held by a financial institution, the State or local law enforcement agency shall serve the order on the entity or institution in possession of the asset with return of service to the clerk of superior court.
    3. If the asset is real property, then a lis pendens shall be filed as directed by the court with the clerk in the county or counties where the property is located in accordance with Article 11 of Chapter 1 of the General Statutes. If property is located in multiple counties, a lis pendens shall be filed in each county.
    4. For all orders served and executed in accordance with subsection (b1) of this section, a return of service shall be filed with the clerk of superior court by the State or local law enforcement agency with an inventory of items seized. If assets identified are financial assets as listed in subdivision (2) of this subsection, then the law enforcement agency shall list the financial institution wherein such funds are held and the amount of said funds. Said inventory should also identify any and all available real property and identify the counties wherein lis pendens were filed in accordance with subdivision (3) of this subsection.

      (b2) A record of any personal property seized by a law enforcement agency pursuant to this section shall be kept and maintained as provided in Article 2 of Chapter 15 of the General Statutes, except that the property shall not be disposed of other than pursuant to an order of the court entered pursuant to this section. Property frozen or seized pursuant to this section shall be deemed to be in the custody of the law enforcement agency seizing it and shall be removed and stored in the discretion of that law enforcement agency, which may do any of the following:

      (1) Place the property under seal.

      (2) Remove the property to a place designated by the law enforcement agency.

      (3) Request that the North Carolina Department of Justice take custody of the property and remove it to an appropriate location pending an order of the court for disposition.

  3. At any time after service of the order to freeze or seize assets, the defendant or any person claiming an interest in the assets may file a motion to release the assets.
  4. In any proceeding to release assets, the burden of proof shall be by clear and convincing evidence and shall be on the State to show that the defendant is about to, intends to, or did divest himself or herself of assets in a manner that would render the defendant insolvent for purposes of restitution. If the court finds that the defendant is about to, intends to, or did divest himself or herself of assets in a manner that would render the defendant insolvent for purposes of restitution, the court shall deny the motion.
  5. If the prosecution of the charge under G.S. 14-112.2 is terminated by voluntary dismissal without leave by the State or the court, or if a judgment of acquittal is entered, the court shall vacate the order to freeze or seize the assets. If assets are released pursuant to this subsection, accrued costs incident to the seizure, freeze, or storage of the assets shall not be charged against the defendant and shall be borne by the agency incurring those costs. (e1) Upon conviction of the defendant, or entry of a plea of no contest, any frozen or seized assets shall be used to satisfy the defendant’s restitution obligation as ordered by the court, accounting for costs incident to seizure, including costs of sale. However, if the defendant can satisfy the restitution order within a period of time designated by the court, the court may accept an alternate form of restitution satisfaction. Any excess assets shall be returned to the defendant.In order to satisfy an order of restitution, frozen or seized assets shall be handled as follows:
    1. Assets shall be sold, transferred, paid out, or otherwise applied to the defendant’s restitution obligation as follows:
      1. If the asset is personal property or liquid assets already seized, the property shall be disposed of in accordance with the court order.
      2. If the asset is held by a financial institution, the court shall enter an order directing the payment of those funds to the clerk in the amount specified in the restitution order or, if the amount is less than the full restitution award, the full amount of liquid assets shall be paid. The law enforcement agency shall deliver those funds to the clerk.
      3. If the asset is real property, the court shall enter an order directing the sale of the property. The sale shall be conducted pursuant to Article 29A of Chapter 1 of the General Statutes. A private sale may be conducted pursuant to G.S. 1-339.33 through G.S. 1-339.40 , if, upon receipt of the petition and satisfactory proof, it appears to the person directed to oversee the sale that a private sale is in the best interest of the victim.
    2. The proceeds of any sale, transfer, or conversion shall be disbursed as follows:
      1. The law enforcement agency shall pay all proceeds to the clerk of superior court and shall provide an accounting of personal property sold or liquid assets seized.
      2. All proceeds received by the clerk shall be distributed according to the following priority:
        1. Payment to the victim in the full amount of the restitution order.
        2. The costs and expenses of the sale.
        3. All other necessary expenses incident to compliance with this section.
        4. Any remaining balance to the defendant within 30 days of the clerk’s receipt of the proceeds of the sale, unless the defendant directs the clerk to apply any excess to the defendant’s other monetary obligations contained in the judgment of conviction.

          (e2) In the event proceeds from the sale, transfer, or conversion of the seized or frozen assets under subsection (e1) of this section are not sufficient to cover the expenses allowed under sub-sub-subdivisions 2. and 3. of sub-subdivision b. of subdivision (2) of subsection (e1) of this section, after notice and a hearing at which the defendant is present, the court may enter a supplemental order of restitution for the unpaid portion of those expenses for the benefit of the agency that incurred the expenses, to be paid as part of the criminal judgment and as provided under G.S. 7A-304(d)(1)e.

  6. Any person holding any interest in the frozen or seized assets may commence a separate civil proceeding in the manner provided by law.
  7. Any filing fees, service fees, or other expenses incurred by any State or county agency for the administration or use of this section shall be recoverable only as provided in sub-sub-subdivision 2. of sub-subdivision b. of subdivision (2) of subsection (e1) of this section.

History. 2013-203, s. 2; 2015-182, s. 1.

Effect of Amendments.

Session Laws 2015-182, s. 1, effective October 1, 2015, added subsections (b1), (b2), (e1), (e2) and (g); deleted “with jurisdiction over the pending charges” following “may make an application to the court” in the first sentence of subsection (b); substituted “the court shall deny the motion” for “the court shall order the assets frozen or held until further order of the court. The rules of evidence that apply to this proceeding are the rules that would apply in a proceeding pursuant to G.S. 1A-1 , Rule 65” in subsection (d); and in subsection (e), inserted “without leave” and “or the court” in the first sentence, and added the last sentence. For applicability, see Editor’s note.

§ 14-113. Obtaining money by false representation of physical disability.

It shall be unlawful for any person to falsely represent himself or herself in any manner whatsoever as blind, deaf, unable to speak, or otherwise physically disabled for the purpose of obtaining money or other thing of value or of making sales of any character of personal property. Any person so falsely representing himself or herself and securing aid or assistance on account of such representation, shall be deemed guilty of a Class 2 misdemeanor.

History. 1919, c. 104; C.S., s. 4286; 1969, c. 1224, s. 1; 1993, c. 539, s. 53; 1994, Ex. Sess., c. 24, s. 14(c); 2011-29, s. 3.

Cross References.

As to defrauding the North Carolina governmental employees’ retirement system for counties, cities, and towns, see G.S. 128-32 .

Effect of Amendments.

Session Laws 2011-29, s. 3, effective April 7, 2011, substituted “disability” for “defect” in the section catchline; substituted “blind, deaf, unable to speak, or otherwise physically disabled” for “blind, deaf, dumb, or crippled or otherwise physically defective” in the first sentence; and deleted “as blind, deaf, dumb, crippled or otherwise physically defective” following “himself or herself” in the last sentence.

Article 19A. Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means.

§ 14-113.1. Use of false or counterfeit credit device; unauthorized use of another’s credit device; use after notice of revocation.

It shall be unlawful for any person knowingly to obtain or attempt to obtain credit, or to purchase or attempt to purchase any goods, property or service, by the use of any false, fictitious, or counterfeit telephone number, credit number or other credit device, or by the use of any telephone number, credit number or other credit device of another without the authority of the person to whom such number or device was issued, or by the use of any telephone number, credit number or other credit device in any case where such number or device has been revoked and notice of revocation has been given to the person to whom issued or he has knowledge or reason to believe that such revocation has occurred.

History. 1961, c. 223, s. 1; 1965, c. 1147; 1967, c. 1244, s. 1; 1971, c. 1213, s. 1.

§ 14-113.2. Notice defined; prima facie evidence of receipt of notice.

The word “notice” as used in G.S. 14-113.1 shall be construed to include either notice given in person or notice given in writing to the person to whom the number or device was issued. The sending of a notice in writing by registered or certified mail in the United States mail, duly stamped and addressed to such person at his last address known to the issuer, shall be prima facie evidence that such notice was duly received after five days from the date of the deposit in the mail.

History. 1961, c. 223, s. 3; 1965, c. 1147; 1967, c. 1244, s. 1.

§ 14-113.3. Use of credit device as prima facie evidence of knowledge.

The presentation or use of a revoked, false, fictitious or counterfeit telephone number, credit number, or other credit device for the purpose of obtaining credit or the privilege of making a deferred payment for the article or service purchased shall be prima facie evidence of knowledge that the said credit device is revoked, false, fictitious or counterfeit; and the unauthorized use of any telephone number, credit number or other credit device of another shall be prima facie evidence of knowledge that such use was without the authority of the person to whom such number or device was issued.

History. 1961, c. 223, s. 4; 1965, c. 1147; 1967, c. 1244, s. 1.

§ 14-113.4. Avoiding or attempting to avoid payment for telecommunication services.

It shall be unlawful for any person to avoid or attempt to avoid, or to cause another to avoid, the lawful charges, in whole or in part, for any telephone or telegraph service or for the transmission of a message, signal or other communication by telephone or telegraph, or over telephone or telegraph facilities by the use of any fraudulent scheme, device, means or method.

History. 1961, c. 223, s. 2; 1965, c. 1147.

§ 14-113.5. Making, distributing, possessing, transferring, or programming device for theft of telecommunication service; publication of information regarding schemes, devices, means, or methods for such theft; concealment of existence, origin or destination of any telecommunication.

  1. It shall be unlawful for any person knowingly to:
    1. Make, distribute, possess, use, or assemble an unlawful telecommunications device or modify, alter, program, or reprogram a telecommunication device designed, adapted, or which is used:
      1. For commission of a theft of telecommunication service or to acquire or facilitate the acquisition of telecommunications service without the consent of the telecommunication service provider in violation of this Article, or
      2. To conceal, or assist another to conceal, from any supplier of a telecommunication service provider or from any lawful authority the existence or place of origin or of destination of any telecommunication, or
    2. Sell, possess, distribute, give, transport, or otherwise transfer to another or offer or advertise for sale any:
      1. Unlawful telecommunication device, or plans or instructions for making or assembling the same under circumstances evincing an intent to use or employ the unlawful telecommunication device, or to allow the same to be used or employed, for a purpose described in (1)a or (1)b above, or knowing or having reason to believe that the same is intended to be so used, or that the aforesaid plans or instructions are intended to be used for making or assembling the unlawful telecommunication device; or
      2. Material, including hardware, cables, tools, data, computer software or other information or equipment, knowing that the purchaser or a third person intends to use the material in the manufacture of an unlawful telecommunication device; or
    3. Publish plans or instructions for making or assembling or using any unlawful telecommunication device, or
    4. Publish the number or code of an existing, cancelled, revoked or nonexistent telephone number, credit number or other credit device, or method of numbering or coding which is employed in the issuance of telephone numbers, credit numbers or other credit devices with knowledge or reason to believe that it may be used to avoid the payment of any lawful telephone or telegraph toll charge under circumstances evincing an intent to have the telephone number, credit number, credit device or method of numbering or coding so used.
    5. Repealed by Session Laws 1995, c. 425, s. 1.
  2. Any unlawful telecommunication device, plans, instructions, or publications described in this section may be seized under warrant or incident to a lawful arrest for a violation of this section. Upon the conviction of a person for a violation of this section, the court may order the sheriff of the county in which the person was convicted to destroy as contraband or to otherwise lawfully dispose of the unlawful telecommunication device, plans, instructions, or publication.
  3. The following definitions apply in this section and in G.S. 14-113.6 :
    1. Manufacture of an unlawful telecommunication device. — The production or assembly of an unlawful telecommunication device or the modification, alteration, programming or reprogramming of a telecommunication device to be capable of acquiring or facilitating the acquisition of telecommunication service without the consent of the telecommunication service provider.
    2. Publish. — The communication or dissemination of information to any one or more persons, either orally, in person or by telephone, radio or television, or in a writing of any kind, including without limitation a letter or memorandum, circular or handbill, newspaper or magazine article, or book.
    3. Telecommunication device. — Any type of instrument, device, machine or equipment that is capable of transmitting or receiving telephonic, electronic or radio communications, or any part of such instrument, device, machine or equipment, or any computer circuit, computer chip, electronic mechanism or other component that is capable of facilitating the transmission or reception of telephonic, electronic or radio communications.
    4. Telecommunication service. — Any service provided for a charge or compensation to facilitate the origination, transmission, emission or reception of signs, signals, data, writings, images, sounds or intelligence of any nature of telephone, including cellular or other wireless telephones, wire, radio, electromagnetic, photoelectronic or photo-optical system.
    5. Telecommunication service provider. — A person or entity providing telecommunication service, including, a cellular, paging or other wireless communications company or other person or entity which, for a fee, supplies the facility, cell site, mobile telephone switching office or other equipment or telecommunication service.
    6. Unlawful telecommunication device. — Any telecommunication device that is capable, or has been altered, modified, programmed or reprogrammed alone or in conjunction with another access device or other equipment so as to be capable, of acquiring or facilitating the acquisition of any electronic serial number, mobile identification number, personal identification number or any telecommunication service without the consent of the telecommunication service provider. The term includes, telecommunications devices altered to obtain service without the consent of the telecommunication service provider, tumbler phones, counterfeit or clone microchips, scanning receivers of wireless telecommunication service of a telecommunication service provider and other instruments capable of disguising their identity or location or of gaining access to a communications system operated by a telecommunication service provider. This section shall not apply to any device operated by a law enforcement agency in the normal course of its activities.

History. 1965, c. 1147; 1971, c. 1213, s. 2; 1995, c. 425, s. 1.

§ 14-113.6. Penalties for violation; civil action.

  1. Any person violating any of the provisions of this Article shall be guilty of a Class 2 misdemeanor. However, if the offense is a violation of G.S. 14-113.5 and involves five or more unlawful telecommunication devices the person shall be guilty of a Class G felony.
  2. The court may, in addition to any other sentence authorized by law, order a person convicted of violating G.S. 14-113.5 to make restitution for the offense.
  3. Any person or entity aggrieved by a violation of G.S. 14-113.5 may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, including preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, costs of suit and any attorney fees as may be provided by law.

History. 1961, c. 223, s. 5; 1965, c. 1147; 1969, c. 1224, s. 6; 1993, c. 539, s. 54; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 425, s. 2.

§ 14-113.6A. Venue of offenses.

  1. Any of the offenses described in Article 19A which involve the placement of telephone calls may be deemed to have been committed at either the place at which the telephone call or calls were made or at the place where the telephone call or calls were received.
  2. An offense under former G.S. 14-113.5(3) or 14-113.5(4) (see now G.S. 14-113.5(a)(3) or 14-113.5(a)(4)) may be deemed to have been committed at either the place at which the publication was initiated or at which the publication was received or at which the information so published was utilized to avoid or attempt to avoid the payment of any lawful telephone or telegraph toll charge.

History. 1971, c. 1213, s. 3.

§ 14-113.7. Article not construed as repealing § 14-100.

This Article shall not be construed as repealing G.S. 14-100 .

History. 1961, c. 223, s. 6; 1065, c. 1147.

§ 14-113.7A. Application of Article to credit cards.

This Article shall not be construed as being applicable to any credit card as the term is defined in G.S. 14-113.8 .

History. 1967, c. 1244, s. 1.

Article 19B. Financial Transaction Card Crime Act.

§ 14-113.8. Definitions.

The following words and phrases as used in this Chapter, unless a different meaning is plainly required by the context, shall have the following meanings:

  1. Acquirer. — “Acquirer” means a business organization, financial institution, or an agent of a business organization or financial institution that authorizes a merchant to accept payment by financial transaction card for money, goods, services or anything else of value.

    (1a) Automated Banking Device. — “Automated banking device” means any machine which when properly activated by a financial transaction card and/or personal identification code may be used for any of the purposes for which a financial transaction card may be used.

  2. Cardholder. — “Cardholder” means the person or organization named on the face of a financial transaction card to whom or for whose benefit the financial transaction card is issued by an issuer.
  3. Expired Financial Transaction Card. — “Expired financial transaction card” means a financial transaction card which is no longer valid because the term shown on it has elapsed.
  4. Financial Transaction Card. — “Financial transaction card” or “FTC” means any instrument or device whether known as a credit card, credit plate, bank services card, banking card, check guarantee card, debit card, or by any other name, issued with or without fee by an issuer for the use of the cardholder:
    1. In obtaining money, goods, services, or anything else of value on credit; or
    2. In certifying or guaranteeing to a person or business the availability to the cardholder of funds on deposit that are equal to or greater than the amount necessary to honor a draft or check payable to the order of such person or business; or
    3. In providing the cardholder access to a demand deposit account or time deposit account for the purpose of:
      1. Making deposits of money or checks therein; or
      2. Withdrawing funds in the form of money, money orders, or traveler’s checks therefrom; or
      3. Transferring funds from any demand deposit account or time deposit account to any other demand deposit account or time deposit account; or
      4. Transferring funds from any demand deposit account or time deposit account to any credit card accounts, overdraft privilege accounts, loan accounts, or any other credit accounts in full or partial satisfaction of any outstanding balance owed existing therein; or
      5. For the purchase of goods, services or anything else of value; or
      6. Obtaining information pertaining to any demand deposit account or time deposit account;
    4. But shall not include a telephone number, credit number, or other credit device which is covered by the provisions of Article 19A of this Chapter.
  5. Issuer. — “Issuer” means the business organization or financial institution or its duly authorized agent which issues a financial transaction card.
  6. Personal Identification Code. — “Personal identification code” means a numeric and/or alphabetical code assigned to the cardholder of a financial transaction card by the issuer to permit authorized electronic use of that FTC.
  7. Presenting. — “Presenting” means, as used herein, those actions taken by a cardholder or any person to introduce a financial transaction card into an automated banking device, including utilization of a personal identification code, or merely displaying or showing a financial transaction card to the issuer, or to any person or organization providing money, goods, services, or anything else of value, or any other entity with intent to defraud.
  8. Receives. — “Receives” or “receiving” means acquiring possession or control or accepting a financial transaction card as security for a loan.
  9. Revoked Financial Transaction Card. — “Revoked financial transaction card” means a financial transaction card which is no longer valid because permission to use it has been suspended or terminated by the issuer.
  10. Scanning Device. — “Scanning device” means a scanner, reader, or any other device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on a financial transaction card. This term does not include a skimming device.
  11. Skimming Device. — A self-contained device that (i) is designed to read and store in the device’s internal memory information encoded on the computer chip, magnetic strip or stripe, or other storage mechanism of a financial transaction card or from another device that directly reads the information from a financial transaction card and (ii) is incapable of processing the financial transaction card information for the purpose of obtaining, purchasing, or receiving goods, services, money, or anything else of value from a merchant.

History. 1967, c. 1244, s. 2; 1971, c. 1213, s. 4; 1979, c. 741, s. 1; 1989, c. 161, s. 1; 2002-175, s. 2; 2021-68, s. 1.

Editor’s Note.

Session Laws 2021-68, s. 3, made subdivision (11) and the last sentence of subdivision (10) of this section, as added by Session Laws 2021-68, s. 1, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2021-68, s. 1, added the last sentence in subdivision (10); and added subdivision (11). For effective date and applicability, see editor’s note.

Legal Periodicals.

For article on the civil aspects of credit card law, see 2 N.C. Cent. L.J. 43 (1970).

§ 14-113.9. Financial transaction card theft.

  1. A person is guilty of financial transaction card theft when the person does any of the following:
    1. Takes, obtains, or withholds a financial transaction card from the person, possession, custody, or control of another without the cardholder’s consent and with the intent to use it; or who, with knowledge that it has been so taken, obtained, or withheld, receives the financial transaction card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder.
    2. Receives a financial transaction card that he or she knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, and retains possession with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder.
    3. Not being the issuer, sells a financial transaction card or buys a financial transaction card from a person other than the issuer.
    4. Not being the issuer, during any 12-month period, receives financial transaction cards issued in the names of two or more persons which he or she has reason to know were taken or retained under circumstances that constitute a violation of G.S. 14-113.13(a)(3) and subdivision (3) of subsection (a) of this section.
    5. With the intent to defraud any person, either (i) uses a scanning device to access, read, obtain, memorize, or store, temporarily or permanently, information encoded on another person’s financial transaction card, or (ii) receives the encoded information from another person’s financial transaction card.
    6. Knowingly possesses, sells, or delivers a skimming device. The prohibition set forth in this subdivision does not apply to an employee, officer, or agent of any of the following while acting within the scope of the person’s official duties:
      1. A law enforcement agency.
      2. A State or federal court.
      3. An agency or department of the State, local, or federal government.
      4. A financial or retail security investigator employed by a merchant.
  2. Financial transaction card theft is punishable as provided by G.S. 14-113.17(b).

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1; c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 2002-175, s. 3; 2021-68, s. 2; 2021-88, s. 2.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

Session Laws 2021-68, s. 3, made subdivision (a)(6) of this section, as added by Session Laws 2021-68, s. 2, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2021-68, s. 2, added subdivision (a)(6). For effective date and applicability, see editor’s note.

Session Laws 2021-88, s. 2, effective July 22, 2021, substituted “Financial transaction” for “Credit” in subsection (b); and made stylistic changes throughout.

Legal Periodicals.

For article on the civil aspects of credit card law, see 2 N.C. Cent. L.J. 43 (1970).

CASE NOTES

Subdivision (a)(1) may be violated in four ways: one may (1) take, (2) obtain, or (3) withhold a financial transaction card from the person, possession, custody or control of another without the cardholder’s consent and with the intent to use it; or one may (4) receive a financial transaction card with intent to use it or sell it or transfer it to a person other than the issuer or cardholder, knowing at the time that the card has been so taken, obtained or withheld, i.e., knowing at the time he received it that another person had taken, obtained or withheld the card from the person, possession, custody or control of another without the cardholder’s consent and with the intent to use it. State v. Brunson, 51 N.C. App. 413, 276 S.E.2d 455, 1981 N.C. App. LEXIS 2237 (1981).

Elements of Receiving Under Subdivision (a)(1). —

The necessary implication from the use of the qualifier “so” in subdivision (a)(1) is that when a defendant is charged with a violation of the receiving portion of the statute, he must have received a card from a third party who also intended to use it. Although this interpretation hinges upon a linguistic technicality, criminal laws must be strictly construed in favor of the defendant. State v. Brunson, 51 N.C. App. 413, 276 S.E.2d 455, 1981 N.C. App. LEXIS 2237 (1981).

Indictment for Receiving Under Subdivision (a)(1). —

In order to charge receiving under the present wording of subdivision (a)(1), it must be alleged, among other elements, that at the time of receipt the defendant knew that the financial transaction card had been taken, obtained or withheld from the person, possession, custody or control of another without the cardholder’s consent and with the intent to use it. State v. Brunson, 51 N.C. App. 413, 276 S.E.2d 455, 1981 N.C. App. LEXIS 2237 (1981).

An indictment attempting to charge a defendant under the receiving portion of subdivision (a)(1) of this section which failed to allege that the defendant knew that the card had been taken, obtained or withheld with the intent to use it, an essential element of the crime for which defendant was tried, failed to charge a crime, and defendant’s motion to dismiss should have been allowed. State v. Brunson, 51 N.C. App. 413, 276 S.E.2d 455, 1981 N.C. App. LEXIS 2237 (1981).

Sufficiency of Description of Credit Card. —

No defect appears on the face of an indictment for violation of this section where the credit card allegedly withheld is sufficiently described to inform the accused with certainty as to the crime he allegedly committed. State v. Springer, 283 N.C. 627 , 197 S.E.2d 530, 1973 N.C. LEXIS 1028 (1973).

The date upon which an allegedly stolen credit card was issued is not necessary to describe the card, is not an essential element of the offense charged, and therefore is not a material fact which the State must allege and prove. State v. Springer, 283 N.C. 627 , 197 S.E.2d 530, 1973 N.C. LEXIS 1028 (1973).

Evidence Held Insufficient. —

There was insubstantial evidence from which the jury could find that the defendant did not have his mother’s permission to use her credit card. State v. McLemore, 343 N.C. 240 , 470 S.E.2d 2, 1996 N.C. LEXIS 258 (1996).

Evidence Sufficient. —

Motion to dismiss financial card theft charges was properly denied under circumstances in which the evidence showed that one of the two stolen cards was used two days after the last time the owner knew he was in possession of the cards, and the second card was found in defendant’s possession three days after that; further, a security tape from the store where the card was used showed defendant shopping there, making a purchase at the time of the unauthorized charge on the card and apparently paying for it with a credit card and register receipts showed purchases made with the card corresponding to the time of defendant’s purchases. State v. Fraley, 182 N.C. App. 683, 643 S.E.2d 39, 2007 N.C. App. LEXIS 806 (2007).

§ 14-113.10. Prima facie evidence of theft.

When a person has in his possession or under his control financial transaction cards issued in the names of two or more other persons other than members of his immediate family, such possession shall be prima facie evidence that such financial transaction cards have been obtained in violation of G.S. 14-113.9(a) .

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1.

CASE NOTES

Evidence of Possession of Other Credit Cards. —

The admission of evidence, over objection, that defendant had three other credit cards in his possession which had been issued in the names of persons other than defendant or members of his immediate family was competent (1) to make out a prima facie case as provided in this section that defendant had obtained all credit cards in his possession in violation of G.S. 14-113.9(a) ; (2) to establish a common plan or scheme to commit credit-card crimes so related to each other that proof of one or more tends to prove the crime charged and to connect defendant with its commission; and (3) to show criminal intent and guilty knowledge. State v. Springer, 283 N.C. 627 , 197 S.E.2d 530, 1973 N.C. LEXIS 1028 (1973).

Necessity for Instruction. —

In light of the provisions of this section, it is the duty of the court to instruct the jury regarding the legal significance of the State’s evidence tending to show that defendant had in his possession or under his control credit cards issued in the name of two or more persons other than defendant and members of his immediate family. State v. Springer, 283 N.C. 627 , 197 S.E.2d 530, 1973 N.C. LEXIS 1028 (1973).

§ 14-113.11. Forgery of financial transaction card.

  1. A person is guilty of financial transaction card forgery when:
    1. With intent to defraud a purported issuer, a person or organization providing money, goods, services or anything else of value, or any other person, he falsely makes or falsely embosses a purported financial transaction card or utters such a financial transaction card; or
    2. With intent to defraud a purported issuer, a person or organization providing money, goods, services or anything else of value, or any other person, he falsely encodes, duplicates or alters existing encoded information on a financial transaction card or utters such a financial transaction card; or
    3. He, not being the cardholder or a person authorized by him, with intent to defraud the issuer, or a person or organization providing money, goods, services or anything else of value, or any other person, signs a financial transaction card.
  2. A person falsely makes a financial transaction card when he makes or draws, in whole or in part, a device or instrument which purports to be the financial transaction card of a named issuer but which is not such a financial transaction card because the issuer did not authorize the making or drawing, or alters a financial transaction card which was validly issued.
  3. A person falsely embosses a financial transaction card when, without authorization of the named issuer, he completes a financial transaction card by adding any of the matter, other than the signature of the cardholder, which an issuer requires to appear on the financial transaction card before it can be used by a cardholder.
  4. A person falsely encodes a financial transaction card when, without authorization of the purported issuer, he records magnetically, electronically, electro-magnetically or by any other means whatsoever, information on a financial transaction card which will permit acceptance of that card by any automated banking device. Conviction of financial transaction card forgery shall be punishable as provided in G.S. 14-113.17(b).

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1.

Legal Periodicals.

For article on the civil aspects of credit card law, see 2 N.C. Cent. L.J. 43 (1970).

§ 14-113.12. Prima facie evidence of forgery.

  1. When a person, other than the purported issuer, possesses two or more financial transaction cards which are falsely made or falsely embossed, such possession shall be prima facie evidence that said cards were obtained in violation of G.S. 14-113.11(a)(1) or 14-113.11(a)(2).
  2. When a person, other than the cardholder or a person authorized by him possesses two or more financial transaction cards which are signed, such possession shall be prima facie evidence that said cards were obtained in violation of G.S. 14-113.11(a)(3).

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1.

§ 14-113.13. Financial transaction card fraud.

  1. A person is guilty of financial transaction card fraud when, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value, or any other person, he
    1. Uses for the purpose of obtaining money, goods, services or anything else of value a financial transaction card obtained or retained, or which was received with knowledge that it was obtained or retained, in violation of G.S. 14-113.9 or 14-113.11 or a financial transaction card which he knows is forged, altered, expired, revoked or was obtained as a result of a fraudulent application in violation of G.S. 14-113.13(c); or
    2. Obtains money, goods, services, or anything else of value by:
      1. Representing without the consent of the cardholder that he is the holder of a specified card; or
      2. Presenting the financial transaction card without the authorization or permission of the cardholder; or
      3. Representing that he is the holder of a card and such card has not in fact been issued; or
      4. Using a financial transaction card to knowingly and willfully exceed:
        1. The actual balance of a demand deposit account or time deposit account; or
        2. An authorized credit line in an amount which exceeds such authorized credit line in the amount of five hundred dollars ($500.00), or fifty percent (50%) of such authorized credit line, whichever is greater; or
    3. Obtains control over a financial transaction card as security for debt; or
    4. Deposits into his account or any account, by means of an automated banking device, a false, fictitious, forged, altered or counterfeit check, draft, money order, or any other such document not his lawful or legal property; or
    5. Receives money, goods, services or anything else of value as a result of a false, fictitious, forged, altered, or counterfeit check, draft, money order or any other such document having been deposited into an account via an automated banking device, knowing at the time of receipt of the money, goods, services, or item of value that the document so deposited was false, fictitious, forged, altered or counterfeit or that the above deposited item was not his lawful or legal property.
  2. A person who is authorized by an issuer to furnish money, goods, services or anything else of value upon presentation of a financial transaction card by the cardholder, or any agent or employee of such person is guilty of a financial transaction card fraud when, with intent to defraud the issuer or the cardholder, he
    1. Furnishes money, goods, services or anything else of value upon presentation of a financial transaction card obtained or retained in violation of G.S. 14-113.9 , or a financial transaction card which he knows is forged, expired or revoked; or
    2. Fails to furnish money, goods, services or anything else of value which he represents in writing to the issuer that he has furnished.Conviction of financial transaction card fraud as provided in subsection (a) or (b) of this section is punishable as provided in G.S. 14-113.17(a) if the value of all money, goods, services and other things of value furnished in violation of this section, or if the difference between the value actually furnished and the value represented to the issuer to have been furnished in violation of this section, does not exceed five hundred dollars ($500.00) in any six-month period. Conviction of financial transaction card fraud as provided in subsection (a) or (b) of this section is punishable as provided in G.S. 14-113.17(b) if such value exceeds five hundred dollars ($500.00) in any six-month period.
  3. A person is guilty of financial transaction card fraud when, upon application for a financial transaction card to an issuer, he knowingly makes or causes to be made a false statement or report relative to his name, occupation, financial condition, assets, or liabilities; or willfully and substantially overvalues any assets, or willfully omits or substantially undervalues any indebtedness for the purpose of influencing the issuer to issue a financial transaction card.Conviction of financial transaction card fraud as provided in this subsection is punishable as provided in G.S. 14-113.17(a).

    (c1) A person authorized by an acquirer to furnish money, goods, services or anything else of value upon presentation of a financial transaction card or a financial transaction card account number by a cardholder, or any agent or employee of such person, who, with intent to defraud the issuer, acquirer, or cardholder, remits to an issuer or acquirer, for payment, a financial transaction card record of a sale, which sale was not made by such person, his agent or employee, is guilty of financial transaction card fraud.Conviction of financial transaction card fraud as provided in this subsection is punishable as provided in G.S. 14-113.17(a).

  4. A cardholder is guilty of financial transaction card fraud when he willfully, knowingly, and with an intent to defraud the issuer, a person or organization providing money, goods, services, or anything else of value, or any other person, submits, verbally or in writing, to the issuer or any other person, any false notice or report of the theft, loss, disappearance, or nonreceipt of his financial transaction card.Conviction of financial transaction card fraud as provided in this subsection is punishable as provided in G.S. 14-113.17(a).
  5. In any prosecution for violation of G.S. 14-113.13 , the State is not required to establish and it is no defense that some of the acts constituting the crime did not occur in this State or within one city, county, or local jurisdiction.
  6. For purposes of this section, revocation shall be construed to include either notice given in person or notice given in writing to the person to whom the financial transaction card and/or personal identification code was issued. Notice of revocation shall be immediate when notice is given in person. The sending of a notice in writing by registered or certified mail in the United States mail, duly stamped and addressed to such person at his last address known to the issuer, shall be prima facie evidence that such notice was duly received after seven days from the date of the deposit in the mail. If the address is located outside the United States, Puerto Rico, the Virgin Islands, the Canal Zone and Canada, notice shall be presumed to have been received 10 days after mailing by registered or certified mail.

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1; 1989, c. 161, s. 2.

Legal Periodicals.

For article on the civil aspects of credit card law, see 2 N.C. Cent. L.J. 43 (1970).

CASE NOTES

Evidence Held Insufficient. —

There was insubstantial evidence from which the jury could find that the defendant did not have his mother’s permission to use her financial transaction card. State v. McLemore, 343 N.C. 240 , 470 S.E.2d 2, 1996 N.C. LEXIS 258 (1996).

§ 14-113.14. Criminal possession of financial transaction card forgery devices.

  1. A person is guilty of criminal possession of financial transaction card forgery devices when:
    1. He is a person other than the cardholder and possesses two or more incomplete financial transaction cards, with intent to complete them without the consent of the issuer; or
    2. He possesses, with knowledge of its character, machinery, plates, or any other contrivance designed to reproduce instruments purporting to be financial transaction cards of an issuer who has not consented to the preparation of such financial transaction cards.
  2. A financial transaction card is incomplete if part of the matter other than the signature of the cardholder, which an issuer requires to appear on the financial transaction card before it can be used by a cardholder, has not yet been stamped, embossed, imprinted, encoded or written upon it.Conviction of criminal possession of financial transaction card forgery devices is punishable as provided in G.S. 14-113.17(b).

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1.

§ 14-113.15. Criminal receipt of goods and services fraudulently obtained.

A person is guilty of criminally receiving goods and services fraudulently obtained when he receives money, goods, services or anything else of value obtained in violation of G.S. 14-113.13(a) with the knowledge or belief that the same were obtained in violation of G.S. 14-113.13(a). Conviction of criminal receipt of goods and services fraudulently obtained is punishable as provided in G.S. 14-113.17(a) if the value of all the money, goods, services and anything else of value, obtained in violation of this section, does not exceed five hundred dollars ($500.00) in any six-month period; conviction of criminal receipt of goods and services fraudulently obtained is punishable as provided in G.S. 14-113.17(b) if such value exceeds five hundred dollars ($500.00) in any six-month period.

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1.

Legal Periodicals.

For article on the civil aspects of credit card law, see 2 N.C. Cent. L.J. 43 (1970).

§ 14-113.15A. Criminal factoring of financial transaction card records.

Any person who, without the acquirer’s express authorization, employs or solicits an authorized merchant, or any agent or employee of such merchant, to remit to an issuer or acquirer, for payment, a financial transaction card record of a sale, which sale was not made by such merchant, his agent or employee, is guilty of a felony punishable as provided in G.S. 14-113.17(b).

History. 1989, c. 161, s. 3.

§ 14-113.16. Presumption of criminal receipt of goods and services fraudulently obtained.

A person who obtains at a discount price a ticket issued by an airline, railroad, steamship or other transportation company from other than an authorized agent of such company which was acquired in violation of G.S. 14-113.13(a) without reasonable inquiry to ascertain that the person from whom it was obtained had a legal right to possess it shall be presumed to know that such ticket was acquired under circumstances constituting a violation of G.S. 14-113.13(a).

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1.

§ 14-113.17. Punishment and penalties.

  1. A person who is subject to the punishment and penalties of this Article shall be guilty of a Class 2 misdemeanor.
  2. A crime punishable under this Article is punishable as a Class I felony.

History. 1967, c. 1244, s. 2; 1979, c. 741, s. 1; c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 55, 1183; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§§ 14-113.18, 14-113.19.

Reserved for future codification purposes.

Article 19C. Identity Theft.

§ 14-113.20. Identity theft.

  1. A person who knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person for the purposes of making financial or credit transactions in the other person’s name, to obtain anything of value, benefit, or advantage, or for the purpose of avoiding legal consequences is guilty of a felony punishable as provided in G.S. 14-113.22(a).
  2. The term “identifying information” as used in this Article includes the following:
    1. Social security or employer taxpayer identification numbers.
    2. Drivers license, State identification card, or passport numbers.
    3. Checking account numbers.
    4. Savings account numbers.
    5. Credit card numbers.
    6. Debit card numbers.
    7. Personal Identification (PIN) Code as defined in G.S. 14-113.8(6).
    8. Electronic identification numbers, electronic mail names or addresses, Internet account numbers, or Internet identification names.
    9. Digital signatures.
    10. Any other numbers or information that can be used to access a person’s financial resources.
    11. Biometric data.
    12. Fingerprints.
    13. Passwords.
    14. Parent’s legal surname prior to marriage.
  3. It shall not be a violation under this Article for a person to do any of the following:
    1. Lawfully obtain credit information in the course of a bona fide consumer or commercial transaction.
    2. Lawfully exercise, in good faith, a security interest or a right of offset by a creditor or financial institution.
    3. Lawfully comply, in good faith, with any warrant, court order, levy, garnishment, attachment, or other judicial or administrative order, decree, or directive, when any party is required to do so.

History. 1999-449, s. 1; 2000-140, s. 37; 2002-175, s. 4; 2005-414, s. 6.

Cross References.

As to damages for identity fraud, see G.S. 1-539.2 C.

Editor’s Note.

Session Laws 2005-414, s. 7(1), effective December 1, 2005, substituted “Identity Theft” for “Financial Identity Fraud” in the Article heading.

Effect of Amendments.

Session Laws 2005-414, s. 6, effective December 1, 2005, and applicable to offenses committed, and to causes of action arising, on or after that date, in the section heading, substituted “Identity theft” for “Financial identity fraud”; in subdivision (b)(1), inserted “or employer taxpayer identification”; in subdivision (b)(2), inserted “State identification card, or passport”; and in subdivision (b)(8), added “numbers, electronic mail names or addresses, Internet account numbers, or Internet identification names.”

Legal Periodicals.

For article, “Uncertain Standing: Normative Applications of Standing Doctrine Produce Unpredictable Jurisdictional Bars to Common Law Data Breach Claims,” see 95 N.C.L. Rev. 201 (2016).

For note, “The Data Breach Dilemma: Proactive Solutions for Protecting Consumers’ Personal Information,” see 68 Duke L.J. 555 (2018).

CASE NOTES

Instruction Was Proper. —

Trial court properly denied defendant’s request to instruct the jury concerning consent by another to the falsification of that person’s identification documents, where defendant was being prosecuted for financial identity fraud under G.S. 14-113.20 ; trial court properly instructed the jury that it was the State’s burden to show that defendant’s use of the identification documents was without consent. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606, 2003 N.C. App. LEXIS 1539 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382, 2004 U.S. LEXIS 2256 (2004).

Dismissal Properly Denied. —

Trial court did not err in denying defendant’s motion to dismiss pursuant to G.S. 15A-954 in defendant’s prosecution for financial identity fraud under G.S. 14-113.20(a), where the indictment alleged that defendant misrepresented defendant’s identity for the purpose of avoiding legal consequences; the indictment alleged proper grounds for the charge, the State presented substantial evidence in support of the grounds, and there was no fatal variance between the indictment and the evidence at trial. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606, 2003 N.C. App. LEXIS 1539 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382, 2004 U.S. LEXIS 2256 (2004).

Evidence that defendant intended to use the credit card information of others to fraudulently obtain financial benefit, including payment for a new paint job and tires for his vehicle, purchase of a cell phone, and payment of a utility account, was sufficient to defeat defendant’s motion to dismiss the identify theft charge. State v. Jones, 223 N.C. App. 487, 734 S.E.2d 617, 2012 N.C. App. LEXIS 1314 (2012), aff'd, 367 N.C. 299 , 758 S.E.2d 345, 2014 N.C. LEXIS 173 (2014).

Although defendant argued he did not “provide” the victim’s social security number to a police officer, a trial court properly denied defendant’s motion to dismiss a charge of identity theft, G.S. 14-113.20(a), because the victim’s SSN was written on the citation issued to defendant and the jury could conclude that defendant “used” or “possessed” the social security number to avoid legal consequences. State v. Sexton, 223 N.C. App. 341, 734 S.E.2d 295, 2012 N.C. App. LEXIS 1248 (2012).

Lesser Included Offense Instruction Properly Denied. —

Defendant was not entitled to a jury instruction on a lesser included offense, where defendant was prosecuted for financial identity fraud under G.S. 14-113.20 , and defendant sought a lesser included offense instruction for obstruction or delay of an officer under G.S. 14-223 ; because all of the elements of the offense of obstructing or delay an officer were not included in financial identity fraud, obstructing or delaying an officer was not a lesser included offense. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606, 2003 N.C. App. LEXIS 1539 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382, 2004 U.S. LEXIS 2256 (2004).

Evidence was Sufficient. —

Defendant’s conviction for identity theft was affirmed because defendant violated the statute by the use of his brother’s social security number. State v. Barron, 202 N.C. App. 686, 690 S.E.2d 22, 2010 N.C. App. LEXIS 370 (2010).

Evidence supported the jury’s determination that defendant possessed the specific intent to commit identity theft because the evidence was sufficient to raise an inference of defendant’s fraudulent intent in using the names, addresses, and credit card numbers of other people to obtain items and services. State v. Jones, 367 N.C. 299 , 758 S.E.2d 345, 2014 N.C. LEXIS 173 (2014).

Trial counsel was not ineffective for failing to move to dismiss the charges of identity theft because the State presented substantial evidence of fraudulent intent and therefore the trial court would have denied a motion to dismiss as the State presented evidence that the defendant presented credit card information belonging to the two victims in order to conduct transactions with the merchants, even though defendant did not explicitly state the victims’ names or sign the credit card receipts in their names. The evidence included defendant’s confession, testimony of the merchants’ employees involved in the transactions, credit card statements and bank records, and testimony by the investigating officers. State v. Carter, 269 N.C. App. 329, 837 S.E.2d 629, 2020 N.C. App. LEXIS 10 (2020).

§ 14-113.20A. Trafficking in stolen identities.

  1. It is unlawful for a person to sell, transfer, or purchase the identifying information of another person with the intent to commit identity theft, or to assist another person in committing identity theft, as set forth in G.S. 14-113.20 .
  2. A violation of this section is a felony punishable as provided in G.S. 14-113.22(a1).

History. 2002-175, s. 5; 2005-414, s. 7(2).

Cross References.

As to damages for identity fraud, see G.S. 1-539.2 C.

Effect of Amendments.

Session Laws 2005-414, s. 7, effective December 1, 2005, substituted “identity theft” for “financial identity fraud” twice in subsection (a).

CASE NOTES

Sufficiency of the Indictment. —

Indictments were insufficient to support defendant’s convictions for trafficking in stolen identities because the State of North Carolina did not allege the name of the recipient or that the recipient’s name was unknown in charging the crime of trafficking in stolen identities. State v. Jones, 367 N.C. 299 , 758 S.E.2d 345, 2014 N.C. LEXIS 173 (2014).

§ 14-113.21. Venue of offenses.

In any criminal proceeding brought under G.S. 14-113.20 , the crime is considered to be committed in the county where the victim resides, where the perpetrator resides, where any part of the identity theft took place, or in any other county instrumental to the completion of the offense, regardless of whether the defendant was ever actually present in that county.

History. 1999-449, s. 1; 2005-414, ss. 2, 7.

Effect of Amendments.

Session Laws 2005-414, ss. 2 and 7, effective December 1, 2005, substituted “in the county where the victim resides, where the perpetrator resides, where” for “any county in which” and “identity theft” for “financial identity fraud”; and inserted “or in any other county instrumental to the completion of the offense.”

§ 14-113.21A. Investigation of offenses.

  1. A person who has learned or reasonably suspects that the person has been the victim of identity theft may contact the local law enforcement agency that has jurisdiction over the person’s actual residence. Notwithstanding the fact that jurisdiction may lie elsewhere for investigation and prosecution of a crime of identity theft, the local law enforcement agency may take the complaint, issue an incident report, and provide the complainant with a copy of the report and may refer the report to a law enforcement agency in that different jurisdiction.
  2. Nothing in this section interferes with the discretion of a local law enforcement agency to allocate resources for investigations of crimes. A complaint filed or report issued under this section is not required to be counted as an open case for purposes of compiling open case statistics.

History. 2005-414, s. 3.

§ 14-113.22. Punishment and liability.

  1. A violation of G.S.14-113.20(a) is punishable as a Class G felony, except it is punishable as a Class F felony if: (i) the victim suffers arrest, detention, or conviction as a proximate result of the offense, or (ii) the person is in possession of the identifying information pertaining to three or more separate persons. (a1) A violation of G.S. 14-113.20 A is punishable as a Class E felony.

    (a2) The court may order a person convicted under G.S. 14-113.20 or G.S. 14-113.20A to pay restitution pursuant to Article 81C of Chapter 15A of the General Statutes for financial loss caused by the violation to any person. Financial loss included under this subsection may include, in addition to actual losses, lost wages, attorneys’ fees, and other costs incurred by the victim in correcting his or her credit history or credit rating, or in connection with any criminal, civil, or administrative proceeding brought against the victim resulting from the misappropriation of the victim’s identifying information.

  2. Notwithstanding subsection (a), (a1), or (a2) of this section, any person who commits an act made unlawful by G.S. 14-113.20 or G.S. 14-113.20 A may also be liable for damages under G.S. 1-539.2 C.
  3. In any case in which a person obtains identifying information of another person in violation of this Article, uses that information to commit a crime in addition to a violation of this Article, and is convicted of that additional crime, the court records shall reflect that the person whose identity was falsely used to commit the crime did not commit the crime.

History. 1999-449, s. 1; 2002-175, ss. 6, 7; 2003-206, s. 3.

Cross References.

As to trafficking in stolen identities, see G.S. 14-113.20 A.

CASE NOTES

Evidence was Sufficient. —

Defendant’s conviction for identity theft was affirmed because defendant violated the statute by the use of his brother’s social security number. State v. Barron, 202 N.C. App. 686, 690 S.E.2d 22, 2010 N.C. App. LEXIS 370 (2010).

§ 14-113.23. Authority of the Attorney General.

The Attorney General may investigate any complaint regarding identity theft under this Article. In conducting these investigations, the Attorney General has all the investigative powers available to the Attorney General under Article 1 of Chapter 75 of the General Statutes. The Attorney General shall refer all cases of identity theft under G.S. 14-113.20 to the district attorney in the county where the crime was deemed committed in accordance with G.S. 14-113.21 .

History. 1999-449, s. 1; 2005-414, s. 7(2).

Effect of Amendments.

Session Laws 2005-414, s. 7(2), effective December 1, 2005, twice substituted “identity theft” for “financial identity fraud.”

§ 14-113.24. Credit, charge, or debit card numbers on receipts.

  1. For purposes of this section, the word “person” means the person that owns or leases the cash register or other machine or device that electronically prints receipts of credit, charge, or debit card transactions.
  2. Except as provided in this section, no person that accepts credit, charge, or debit cards for the transaction of business shall print more than five digits of the credit, charge, or debit card account number or the expiration date upon any receipt with the intent to provide the receipt to the cardholder at the point of sale. This section applies to a person who employs a cash register or other machine or device that electronically prints receipts for credit, charge, or debit card transactions. This section does not apply to a person whose sole means of recording a credit, charge, or debit card number for the transaction of business is by handwriting or by an imprint or copy of the credit, charge, or debit card.
  3. A person who violates this section commits an infraction as defined in G.S. 14-3.1 and is subject to a penalty of up to five hundred dollars ($500.00) per violation, not to exceed five hundred dollars ($500.00) in any calendar month or two thousand dollars ($2,000) in any calendar year. A person who receives a citation for violation of this section is not subject to the penalty provided in this subsection if the person establishes in court that the person came into compliance with this section within 30 days of the issuance of the citation and the person has remained in compliance with this section.

History. 2003-206, s. 1; 2003-206, s. 2.

§ 14-113.25. Sale of certain cash registers and other receipt printing machines.

  1. No person shall sell or offer to sell a cash register or other machine or device that electronically prints receipts of credit, charge, or debit card transactions that cannot be programmed or operated to produce a receipt with five or fewer digits of the credit, charge, or debit card account number and no expiration date printed on the receipt. This subsection applies to cash registers or other machines or devices sold or offered for sale for use in the ordinary course of business in this State.
  2. A person who violates this section commits an infraction as defined in G.S. 14-3.1 and is subject to a penalty of up to five hundred dollars ($500.00) per violation. For purposes of assessing penalties pursuant to this subsection, the sale or offer for sale of each individual cash register or other machine or device that electronically prints receipts of credit, charge, or debit card transactions in violation of this section is treated as a separate violation.

History. 2003-206, s. 1.

§§ 14-113.26 through 14-113.29.

Reserved for future codification purposes.

Article 19D. Telephone Records Privacy Protection Act.

§ 14-113.30. Definitions.

The following definitions apply in this Article:

  1. Caller identification record. — A record collected and retained by or on behalf of a customer utilizing caller identification or similar technology that is delivered electronically to the recipient of a telephone call simultaneously with the reception of the telephone call and that indicates the telephone number from which the telephone call was initiated or similar information regarding the telephone call.
  2. Customer. — A person or the legal guardian of a person or a representative of a business to whom a telephone service provider provides telephone service to a number subscribed or listed in the name of the person or business.
  3. Person. — An individual, business association, partnership, limited partnership, corporation, limited liability company, or other legal entity.
  4. Telephone record. — A record in written, electronic, or oral form, except a caller identification record, Directory Assistance information, and subscriber list information, that is created by a telephone service provider and that contains any of the following information with respect to a customer:
    1. Telephone numbers that have been dialed by the customer.
    2. Telephone numbers that pertain to calls made to the customer.
    3. The time when calls were made by the customer or to the customer.
    4. The duration of calls made by the customer or to the customer.
    5. The charges applied to calls, if any.
  5. Telephone service. — The conveyance of two-way communication in analog, digital, or other form by any medium, including wire, cable, fiber optics, cellular, broadband personal communications services, or other wireless technologies, satellite, microwave, or at any frequency over any part of the electromagnetic spectrum. The term also includes the conveyance of voice communication over the Internet and telephone relay service.
  6. Telephone service provider. — A person who provides telephone service to a customer without regard to the form of technology used, including traditional wire-line or cable communications service; cellular, broadband PCS, or other wireless communications service; microwave, satellite, or other terrestrial communications service; or voice over Internet communications service.

History. 2007-374, s. 1.

§ 14-113.31. Prohibition of falsely obtaining, selling, or soliciting telephone records.

  1. No person shall obtain, or attempt to obtain, by any means, whether electronically, in writing, or in oral form, with or without consideration, a telephone record that pertains to a customer who is a resident of this State without the customer’s consent by doing any of the following:
    1. Making a false statement or representation to an agent, representative, or employee of a telephone service provider.
    2. Making a false statement or representation to a customer of a telephone service provider.
    3. Knowingly providing to a telephone service provider a document that is fraudulent, that has been lost or stolen, or that has been obtained by fraud, or that contains a false, fictitious, or fraudulent statement or representation.
    4. Accessing customer accounts of a telephone service provider via the Internet without prior authorization from the customer to whom the telephone records relate.
  2. No person shall knowingly purchase, receive, or solicit another to purchase or receive a telephone record that pertains to a customer without the prior authorization of that customer, or if the purchaser or receiver knows or has reason to know that the record has been obtained fraudulently.
  3. No person shall sell or offer to sell a telephone record that was obtained without the customer’s prior consent, or if the person knows or has reason to know that the telephone record was obtained fraudulently.

History. 2007-374, s. 1.

§ 14-113.32. Exceptions.

  1. The provisions of G.S. 14-113.31 shall not apply to any of the following:
    1. Any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency in connection with the official duties of the law enforcement agency.
    2. A disclosure by a telephone service provider if the telephone service provider reasonably believes the disclosure is necessary to: (i) provide telephone service to a customer, including sharing telephone records with one of the provider’s affiliates or (ii) protect an individual or service provider from fraudulent, abusive, or unlawful use of telephone service or a telephone record.
    3. A disclosure by a telephone service provider to the National Center for Missing and Exploited Children.
    4. A disclosure by a telephone service provider that is authorized by State or federal law or regulation.
    5. A disclosure by a telephone service provider to a governmental entity if the provider reasonably believes there is an emergency involving immediate danger of death or serious physical injury.
    6. Testing of a telephone service provider’s security procedures or systems for maintaining the confidentiality of customers’ telephone records.
  2. Nothing in this Article shall be construed to expand the obligation or duty of a telephone service provider to maintain the confidentiality of telephone records beyond the requirements of this Article or federal law or regulation. Any telephone service provider or agent, employee, or representative of a telephone service provider who reasonably and in good faith discloses telephone records shall not be criminally or civilly liable if the disclosure is later determined to be in violation of this Article.

History. 2007-374, s. 1.

§ 14-113.33. Punishment; liability.

  1. Unless the conduct is covered under some other provision of law providing greater punishment, any person who violates this Article is guilty of a Class H felony. In any criminal proceeding brought under this Article, the crime is considered to be committed in the county where the customer resides, where the defendant resides, where any part of the offense took place, or in any other county instrumental to the completion of the offense, regardless of whether the defendant was ever actually present in that county.
  2. A violation of G.S. 14-331.31 is a violation of G.S. 75-1.1 , except that a customer whose telephone records were obtained, sold, or solicited in violation of this Article shall be entitled to damages pursuant to G.S. 75-16 , or one thousand dollars ($1,000), whichever is greater.

History. 2007-374, s. 1.

Article 20. Frauds.

§ 14-114. Fraudulent disposal of personal property on which there is a security interest.

  1. If any person, after executing a security agreement on personal property for a lawful purpose, shall make any disposition of any property embraced in such security agreement, with intent to defeat the rights of the secured party, every person so offending and every person with a knowledge of the security interest buying any property embraced in which security agreement, and every person assisting, aiding or abetting the unlawful disposition of such property, with intent to defeat the rights of any secured party in such security agreement, shall be guilty of a Class 2 misdemeanor.A person’s refusal to turn over secured property to a secured party who is attempting to repossess the property without a judgment or order for possession shall not, by itself, be a violation of this section.
  2. Intent to commit the crime as set forth in subsection (a) may be presumed from proof of possession of the property embraced in such security agreement by the grantor thereof after execution of the security agreement, and while it is in force, the further proof of the fact that the sheriff or other officer charged with the execution of process cannot after due diligence find such property under process directed to him for its seizure, for the satisfaction of such security agreement. However, this presumption may be rebutted by evidence that the property has, through no fault of the defendant, been stolen, lost, damaged beyond repair, or otherwise disposed of by the defendant without intent to defeat the rights of the secured party.

History. 1873-4, c. 31; 1874-5, c. 215; 1883, c. 61; Code, s. 1089; 1887, c. 14; Rev., s. 3435; C.S., s. 4287; 1969, c. 984, s. 2; c. 1224, s. 4; 1987 (Reg. Sess., 1988), c. 1065, s. 1; 1993, c. 539, s. 56; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Editor’s Note. —

The cases below were decided under this section and its predecessors prior to the 1969 amendments to this section, when the section referred to chattel mortgages, deeds of trust or other liens rather than to security agreements.

Three Classes of Offenders. —

The statute is directed against three classes of offenders: (1) The maker of the lien who shall dispose of the property with the unlawful intent; (2) those who buy with a knowledge of the lien; and (3) those who aid or abet either the maker or purchaser in the unlawful acts. State v. Woods, 104 N.C. 898 , 10 S.E. 555, 1889 N.C. LEXIS 298 (1889).

Intent Necessary. —

Under this section the forbidden act must, in order to be indictable, be accomplished with a specific intent, and the courts cannot disregard this clearly expressed purpose of the legislature. State v. Manning, 107 N.C. 910 , 12 S.E. 248, 1890 N.C. LEXIS 171 (1890).

The actual sale of mortgaged crops raises a presumption of fraudulent intent. State v. Holmes, 120 N.C. 573 , 26 S.E. 692, 1897 N.C. LEXIS 133 (1897).

In a trial under this section, the burden is upon the defendant to disprove the criminal intent. State v. Surles, 117 N.C. 720 , 23 S.E. 324, 1895 N.C. LEXIS 136 (1895); State v. Holmes, 120 N.C. 573 , 26 S.E. 692, 1897 N.C. LEXIS 133 (1897).

Result of Sale Must Injure. —

If the property included in the mortgage (other than that disposed of), was abundantly sufficient and available to pay the indebtedness, there could be no such prejudicial result as is contemplated by the statute. State v. Manning, 107 N.C. 910 , 12 S.E. 248, 1890 N.C. LEXIS 171 (1890).

Infant’s Liability. —

An indictment under this section for disposing of crops under mortgage could not be sustained, where it appeared that the defendant was an infant. The alleged disposition was a disaffirmance of the contract and rendered it void. State v. Howard, 88 N.C. 650 , 1883 N.C. LEXIS 144 (1883).

Indictment Must Charge Maker, Buyer or Assistant. —

If the indictment does not charge the defendant as the maker of the lien nor the buyer of the property with knowledge of it, nor as assisting, aiding or abetting in the unlawful disposition of the property no offense is charged. State v. Woods, 104 N.C. 898 , 10 S.E. 555, 1889 N.C. LEXIS 298 (1889).

Indictment Must Charge Lien and Manner of Sale. —

An indictment for disposing of mortgaged property is fatally defective, if it fails to set forth that the lien was in force at the time of sale, the party to whom sold, and the manner of disposition. State v. Pickens, 79 N.C. 652 , 1878 N.C. LEXIS 144 (1878); State v. Burns, 80 N.C. 376 , 1879 N.C. LEXIS 101 (1879).

Indictment Must Identify Transaction and Point to Offense Charged. —

In a prosecution under this section, the bill of indictment must allege the facts and circumstances so as to identify the transaction and point with reasonable certainty to the offense charged. State v. Helms, 247 N.C. 740 , 102 S.E.2d 241, 1958 N.C. LEXIS 314 (1958).

Indictment in Two Counts. —

Where an indictment for disposing of mortgaged property contained two counts, one alleging a disposal with intent to defraud G., “business manager” of an association, and the other a disposal with intent to defraud G., “business manager and agent” of such association, the counts are not repugnant to each other, since they relate to one transaction, varied only to meet the probable proof, and the court will neither quash the bill nor force the State to elect on which count it will proceed. State v. Surles, 117 N.C. 720 , 23 S.E. 324, 1895 N.C. LEXIS 136 (1895).

Prior Lien as Defense. —

It is competent for the defendant, in an indictment for unlawfully disposing of mortgaged property — a crop of tobacco — to show that he, in good faith, applied the entire crop to the discharge of his landlord’s lien. State v. Ellington, 98 N.C. 749 , 4 S.E. 534, 1887 N.C. LEXIS 363 (1887).

Evidence of Other Sales Inadmissible. —

On a trial of one charged with unlawfully disposing of an article of personal property covered by a chattel mortgage, with intent to defeat the right of the mortgagee, evidence that, five months after the offense was committed, the defendant offered to dispose of another article covered by the same mortgage is inadmissible to prove the intent with which the offense was committed. State v. Jeffries, 117 N.C. 727 , 23 S.E. 163, 1895 N.C. LEXIS 137 (1895).

§ 14-115. Secreting property to hinder enforcement of lien or security interest.

Any person who, with intent to prevent or hinder the enforcement of a lien or security interest after a judgment or order has been issued for possession for that personal property subject to said lien or security interest, either refuses to surrender such personal property in his possession to a law enforcement officer, or removes, or exchanges, or secretes such personal property, shall be guilty of a Class 2 misdemeanor.

History. 1887, c. 14; Rev., s. 3436; C.S., s. 4288; 1969, c. 984, s. 3; c. 1224, s. 1; 1987 (Reg. Sess., 1988), c. 1065, s. 2; 1989, c. 401; 1993, c. 539, s. 57; 1994, Ex. Sess., c. 24, s. 14(c).

Local Modification.

Pitt: 1941, c. 284.

§ 14-116. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(1).

§ 14-117. Fraudulent and deceptive advertising.

It shall be unlawful for any person, firm, corporation or association, with intent to sell or in anywise to dispose of merchandise, securities, service or any other thing offered by such person, firm, corporation or association, directly or indirectly, to the public for sale or distribution, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, to make public, disseminate, circulate or place before the public or cause directly or indirectly to be made, published, disseminated, circulated or placed before the public in this State, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter, or in any other way, an advertisement of any sort regarding merchandise, securities, service or any other thing so offered to the public, which advertisement contains any assertion, representation or statement of fact which is untrue, deceptive or misleading: Provided, that such advertising shall be done willfully and with intent to mislead. Any person who shall violate the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1915, c. 218; C.S., s. 4290; 1993, c. 539, s. 59; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article on lawyer advertising, see 18 Wake Forest L. Rev. 503 (1982).

§ 14-117.1. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(5).

§ 14-117.2. Gasoline price advertisements.

  1. Advertisements by any person or firm of the price of any grade of motor fuel must clearly so indicate if such price is dependent upon purchaser himself drawing or pumping the fuel.
  2. Any person or firm violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

History. 1971, c. 324, ss. 1, 2; 1993, c. 539, s. 60; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-118. Blackmailing.

If any person shall knowingly send or deliver any letter or writing demanding of any other person, with menaces and without any reasonable or probable cause, any chattel, money or valuable security; or if any person shall accuse, or threaten to accuse, or shall knowingly send or deliver any letter or writing accusing or threatening to accuse any other person of any crime punishable by law with death or by imprisonment in the State’s prison, with the intent to extort or gain from such person any chattel, money or valuable security, every such offender shall be guilty of a Class 1 misdemeanor.

History. R.C., c. 34, s. 110; Code, s. 989; Rev., s. 3428; C.S., s. 4291; 1993, c. 539, s. 61; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article, “Private Plea Bargains,” see 89 N.C.L. Rev. 1125 (2011).

CASE NOTES

Indictment Held Sufficient. —

Where the offense charged was the sending of a letter, under this section, and the letter was set out in the indictment, from which it is deducible by necessary implication that the defendant threatened to indict the prosecutor for an offense punishable by imprisonment in the penitentiary, with a view and intent to extort money a criminal offense is sufficiently charged. State v. Harper, 94 N.C. 936 , 1886 N.C. LEXIS 177 (1886).

Circumstantial Evidence Held Sufficient to Sustain Conviction. —

Letters demanding a sum of money from the prosecutor, the first requiring that he drop the amount along the road at a certain place at a designated time and at a certain signal, followed by the burning of the prosecutor’s barn on his failing to comply; and the second one referring to this fact and making the same demand, and the apprehension of the defendant at the place at the time appointed, as he appeared after the signals were given, though circumstantial evidence, is adjudged sufficient under an indictment for blackmailing to sustain a conviction. State v. Frady, 172 N.C. 978 , 90 S.E. 802, 1916 N.C. LEXIS 458 (1916).

Circumstantial evidence held to sustain conviction of blackmail. State v. Strickland, 229 N.C. 201 , 49 S.E.2d 469, 1948 N.C. LEXIS 466 (1948).

§ 14-118.1. Simulation of court process in connection with collection of claim, demand or account.

It shall be unlawful for any person, firm, corporation, association, agent or employee in any manner to coerce, intimidate, or attempt to coerce or intimidate any person in connection with any claim, demand or account, by the issuance, utterance or delivery of any matter, printed, typed or written, which (i) simulates or resembles a summons, warrant, writ or other court process or pleading; or (ii) by its form, wording, use of the name of North Carolina or any officer, agency or subdivision thereof, use of seals or insignia, or general appearance has a tendency to create in the mind of the ordinary person the false impression that it has judicial or other official authorization, sanction or approval. Any violation of the provisions of this section shall be a Class I felony.

History. 1961, c. 1188; 1979, c. 263; 1993, c. 539, s. 62; 1994, Ex. Sess., c. 24, s. 14(c); 2012-150, s. 3.

Effect of Amendments.

Session Laws 2012-150, s. 3, effective December 1, 2012, substituted “Class I felony” for “Class 2 misdemeanor” at the end of the last sentence. For applicability, see editor’s note.

§ 14-118.2. Assisting, etc., in obtaining academic credit by fraudulent means.

  1. It shall be unlawful for any person, firm, corporation or association to assist any student, or advertise, offer or attempt to assist any student, in obtaining or in attempting to obtain, by fraudulent means, any academic credit, grade or test score, or any diploma, certificate or other instrument purporting to confer any literary, scientific, professional, technical or other degree in any course of study in any university, college, academy or other educational institution. The activity prohibited by this subsection includes, but is not limited to, preparing or advertising, offering, or attempting to prepare a term paper, thesis, or dissertation for another; impersonating or advertising, offering or attempting to impersonate another in taking or attempting to take an examination; and the giving or changing of a grade or test score or offering to give or change a grade or test score in exchange for an article of value or money.
  2. Any person, firm, corporation or association violating any of the provisions of this section shall be guilty of a Class 2 misdemeanor. This section includes the acts of a teacher or other school official; however, the provisions of this section shall not apply to the acts of one student in assisting another student as herein defined if the former is duly registered in an educational institution in North Carolina and is subject to the disciplinary authority thereof.

History. 1963, c. 781; 1969, c. 1224, s. 7; 1989, c. 144; 1993, c. 539, s. 63; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For note on avoidance of releases in personal injury cases in North Carolina, see 5 Wake Forest Intra L. Rev. 359 (1969).

§ 14-118.3. Acquisition and use of information obtained from patients in hospitals for fraudulent purposes.

It shall be unlawful for any person, firm or corporation, or any officer, agent or other representative of any person, firm or corporation to obtain or seek to obtain from any person while a patient in any hospital information concerning any illness, injury or disease of such patient, other than information concerning the illness, injury or disease for which such patient is then hospitalized and being treated, for a fraudulent purpose, or to use any information so obtained in regard to such other illness, injury or disease for a fraudulent purpose.

Any person, firm or corporation violating the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1967, c. 974; 1969, c. 1224, s. 5; 1993, c. 539, s. 64; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-118.4. Extortion.

Any person who threatens or communicates a threat or threats to another with the intention thereby wrongfully to obtain anything of value or any acquittance, advantage, or immunity is guilty of extortion and such person shall be punished as a Class F felon.

History. 1973, c. 1032; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1184; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

G.S. 14-118 .4 supersedes G.S. 14-118 since later penal statute repeals former one when it covers the same acts but fixes different penalty or substantially redefines offense. State v. Greenspan, 92 N.C. App. 563, 374 S.E.2d 884, 1989 N.C. App. LEXIS 7 (1989).

Elements of Offense. —

To prove a violation of extortion under 18 U.S.C. § 1951 or this section, plaintiffs had to show an attempt to obtain the property of another, with his consent, where such consent was induced by the wrongful use of actual or threatened force, violence or fear. Tryco Trucking Co. v. Belk Stores Servs., Inc., 634 F. Supp. 1327, 1986 U.S. Dist. LEXIS 25799 (W.D.N.C. 1986).

Necessity of Threat. —

In order to satisfy claim of extortion, there must be a threat or a communication of a threat. Tryco Trucking Co. v. Belk Store Servs., Inc., 608 F. Supp. 812, 1985 U.S. Dist. LEXIS 22694 (W.D.N.C. 1985).

As extortionate speech is criminal conduct in and of itself and, as such, is not constitutionally protected speech, the First Amendment does not require that the “true threat” analysis be applied to N.C. Gen. Stat. § 14-118.4, which is narrowly tailored as to only restrict extortionate speech, and thus is valid under the First Amendment. State v. Bowen, 2022-NCCOA-213, 2022 N.C. App. LEXIS 222 (April 5, 2022).

Communication of Threat by Conduct. —

A threat is as effectively communicated through conduct as it is communicated by language. Tryco Trucking Co. v. Belk Store Servs., Inc., 608 F. Supp. 812, 1985 U.S. Dist. LEXIS 22694 (W.D.N.C. 1985).

Fear of economic harm satisfies the definition that extortion is the obtaining of property from another with his consent induced by wrongful use of fear. Tryco Trucking Co. v. Belk Stores Servs., Inc., 634 F. Supp. 1327, 1986 U.S. Dist. LEXIS 25799 (W.D.N.C. 1986).

Defendant’s Belief He Was Entitled to Money Was No Defense. —

Where defendant argued that, because he believed he was entitled to money he sought to obtain, he did not communicate threat with intent to “wrongfully” obtain property, defendant’s belief did not constitute a valid defense; defendant’s entitlement to any money from victim would depend upon defendant’s ability to prevail in civil action for damages, and amount of damages he would recover was matter of speculation. State v. Greenspan, 92 N.C. App. 563, 374 S.E.2d 884, 1989 N.C. App. LEXIS 7 (1989).

Wrongful Intent Refers to Obtaining of Property and Not to Threat Itself. —

Where defendant contended that he lacked requisite intent because he reasonably believed that victim was guilty of crime upon which defendant’s threat was based and he was entitled to money he sought to obtain as compensation for discomfort resulting from harassing phone calls, defendant’s intent was “wrongful” within meaning of statute since defendant’s belief in victim’s guilt was not relevant; wrongful intent required by statute refers to obtaining of property and not to threat itself. State v. Greenspan, 92 N.C. App. 563, 374 S.E.2d 884, 1989 N.C. App. LEXIS 7 (1989).

Threat of Criminal Prosecution Falls Within Statute. —

Defendant’s action in making telephone call in which he offered to refrain from pressing criminal charges in exchange for money amounted to threatening criminal prosecution and clearly came within purview of broad language, “a threat.” State v. Greenspan, 92 N.C. App. 563, 374 S.E.2d 884, 1989 N.C. App. LEXIS 7 (1989).

Extortion Not A Lesser Included Offense of Armed Robbery. —

Trial court did not err at defendant’s trial for robbery with a dangerous weapon by not instructing the jury on extortion as a lesser included offense of armed robbery. State v. Wright, 240 N.C. App. 270, 770 S.E.2d 757, 2015 N.C. App. LEXIS 261 (2015).

Jury Instructions. —

Trial court’s extortion-related jury instructions, which required the jury to find that second defendant intended to obtain avoidance of a criminal prosecution wrongfully, that is, knowing that he was not entitled to obtain it in this manner, were fully consistent with a proper interpretation of G.S. 14-118.4 . State v. Privette, 218 N.C. App. 459, 721 S.E.2d 299, 2012 N.C. App. LEXIS 203 (2012).

Evidence Sufficient. —

Evidence that second defendant sent messages to an individual to the effect that the individual would be killed if he did not turn himself in to authorities and confess to a robbery, and that the individual turned himself in even though he was not a suspect, permitted a reasonable juror to determine that second defendant wrongfully threatened the individual with death or serious injury. State v. Privette, 218 N.C. App. 459, 721 S.E.2d 299, 2012 N.C. App. LEXIS 203 (2012).

Charging Instrument.—

Charging instrument charging extortion need only apprise the charged party of the material elements of the offense of extortion: that a wrongful demand was made with the intent to demand something of value; the juvenile petition sufficiently alleged each essential element and clearly apprised the juvenile of the conduct for which he was being charged with sufficient specificity to allow him to prepare an adequate defense. In re J.A.D., 2022-NCCOA-259, 2022 N.C. App. LEXIS 265 (April 19, 2022).

§ 14-118.5. Theft of cable television service.

  1. Any person, firm or corporation who, after October 1, 1984, knowingly and willfully attaches or maintains an electronic, mechanical or other connection to any cable, wire, decoder, converter, device or equipment of a cable television system or removes, tampers with, modifies or alters any cable, wire, decoder, converter, device or equipment of a cable television system for the purpose of intercepting or receiving any programming or service transmitted by such cable television system which person, firm or corporation is not authorized by the cable television system to receive, is guilty of a Class 3 misdemeanor which may include a fine not exceeding five hundred dollars ($500.00). Each unauthorized connection, attachment, removal, modification or alteration shall constitute a separate violation.
  2. Any person, firm or corporation who knowingly and willfully, without the authorization of a cable television system, distributes, sells, attempts to sell or possesses for sale in North Carolina any converter, decoder, device, or kit, that is designed to decode or descramble any encoded or scrambled signal transmitted by such cable television system, is guilty of a Class 3 misdemeanor which may include a fine not exceeding five hundred dollars ($500.00). The term “encoded or scrambled signal” shall include any signal or transmission that is not intended to produce an intelligible program or service without the aid of a decoder, descrambler, filter, trap or other electronic or mechanical device.
  3. Any cable television system may institute a civil action to enjoin and restrain any violation of this section, and in addition, such cable television system shall be entitled to civil damages in the following amounts:
    1. For each violation of subsection (a), three hundred dollars ($300.00) or three times the amount of actual damages, if any, sustained by the plaintiff, whichever amount is greater.
    2. For each violation of subsection (b), one thousand dollars ($1,000) or three times the amount of actual damages, if any, sustained by the plaintiff, whichever amount is greater.
  4. It is not a necessary prerequisite to a civil action instituted pursuant to this section that the plaintiff has suffered or will suffer actual damages.
  5. Proof that any equipment, cable, wire, decoder, converter or device of a cable television system was modified, removed, altered, tampered with or connected without the consent of such cable system in violation of this section shall be prima facie evidence that such action was taken knowingly and willfully by the person or persons in whose name the cable system’s equipment, cable, wire, decoder, converter or device is installed or the person or persons regularly receiving the benefits of cable services resulting from such unauthorized modification, removal, alteration, tampering or connection.
  6. The receipt, decoding or converting of a signal from the air by the use of a satellite dish or antenna shall not constitute a violation of this section.
  7. Cable television systems may refuse to provide service to anyone who violates subsection (a) of this section whether or not the alleged violator has been prosecuted thereunder.

History. 1977, 2nd Sess., c. 1185, s. 1; 1983 (Reg. Sess., 1984), c. 1088, s. 1; 1993, c. 539, s. 65; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For 1984 survey, “North Carolina’s Theft of Cable Television Service Statute: Prospects of a Brighter Future for the Cable Television Industry,” see 63 N.C.L. Rev. 1296 (1985).

§ 14-118.6. Filing false lien or encumbrance.

  1. It shall be unlawful for any person to present for filing or recording in a public record or a private record generally available to the public a false lien or encumbrance against the real or personal property of an owner or beneficial interest holder, knowing or having reason to know that the lien or encumbrance is false or contains a materially false, fictitious, or fraudulent statement or representation. Any person who violates this subsection shall be guilty of a Class I felony.
  2. When presented to the register of deeds for recording, if a register of deeds has a reasonable suspicion that an instrument purporting to be a lien or encumbrance is materially false, fictitious, or fraudulent, the register of deeds may refuse to record the purported lien or encumbrance. Neither the register of deeds nor any other entity shall be liable for recording or the refusal to record a purported lien or encumbrance as described in this section. If the recording of the purported lien or encumbrance is denied, the register of deeds shall allow the recording of a Notice of Denied Lien or Encumbrance Filing on a form adopted by the Secretary of State, for which no filing fee shall be collected. The Notice of Denied Lien or Encumbrance Filing shall not itself constitute a lien or encumbrance. When recording is denied, any interested person may initiate a special proceeding in the county where the recording was denied within ten (10) business days of the filing of the Notice of Denied Lien or Encumbrance Filing asking the superior court of the respective county to find that the proposed recording has a statutory or contractual basis and to order that the document be recorded. If, after hearing, upon a minimum of five (5) days’ notice as provided in Rule 5 of the Rules of Civil Procedure and opportunity to be heard to all interested persons and all persons claiming an ownership interest in the property, the court finds that there is a statutory or contractual basis for the proposed recording, the court shall order the document recorded, and the party submitting the instrument shall pay the filing fee in accordance with G.S. 161-10 . A lien or encumbrance recorded upon order of the court under this subsection shall have a priority interest as of the time of the filing of the Notice of Denied Lien or Encumbrance Filing. If the court finds that there is no statutory or contractual basis for the proposed recording, the court shall enter an order finding that the proposed recording is null and void and that it shall not be filed, indexed, or recorded and a certified copy of that order shall be recorded by the register of deeds that originally denied the recording, for which the party who submitted the instrument shall pay the filing fee in accordance with G.S. 161-10 . The review by the judge under this subsection shall not be deemed a finding as to any underlying claim of the parties involved. If a special proceeding is not initiated under this subsection within ten (10) business days of the filing of the Notice of Denied Lien or Encumbrance Filing, the purported lien or encumbrance is deemed null and void as a matter of law. (b1) When a purported lien or encumbrance is presented to a clerk of superior court for filing and the clerk of court has a reasonable suspicion that the purported lien or encumbrance is materially false, fictitious, or fraudulent, the clerk of court may refuse to file the purported lien or encumbrance. Neither the clerk of court nor the clerk’s staff shall be liable for filing or the refusal to file a purported lien or encumbrance under this subsection. The clerk of superior court shall not file, index, or docket the document against the property until that document is approved by any judge of the judicial district having subject matter jurisdiction for filing by the clerk of superior court. If the judge determines that the filing is not false, the clerk shall index the claim of lien. A lien or encumbrance filed upon order of the court under this subsection shall have a priority interest as of the date and time of indexing by the clerk of superior court. If the court finds that there is no statutory or contractual basis for the proposed filing, the court shall enter an order that the proposed filing is null and void as a matter of law, and that it shall not be filed or indexed. The clerk of superior court shall serve the order and return the original denied filing to the person or entity that presented it. The person or entity shall have 30 days from the entry of the order to appeal the order. If the order is not appealed within the applicable time period, the clerk may destroy the filing.
  3. Upon being presented with an order duly issued by a court of competent jurisdiction of this State declaring that a lien or encumbrance already recorded or filed is false, and therefore null and void as a matter of law, the register of deeds or clerk of court that received the recording or filing, in addition to recording or filing the court’s order finding the lien or encumbrance to be false, shall conspicuously mark on the first page of the original record previously filed the following statement: “THE CLAIM ASSERTED IN THIS DOCUMENT IS FALSE AND IS NOT PROVIDED FOR BY THE GENERAL LAWS OF THIS STATE.”
  4. In addition to any criminal penalties provided for in this section, the presentation of an instrument for recording or filing with a register of deeds or clerk of superior court that purports to be a lien or encumbrance that is determined to be materially false, fictitious, or fraudulent shall constitute a violation of G.S. 75-1.1 .
  5. Subsections (b), (b1), and (c) of this section shall not apply to filings under Article 9 of Chapter 25 of the General Statutes or under Chapter 44A of the General Statutes.

History. 2012-150, s. 4; 2013-170, s. 1; 2013-410, s. 27.8; 2015-87, s. 1; 2017-102, s. 3; 2019-117, s. 3; 2019-243, s. 29(a).

Effect of Amendments.

Session Laws 2013-170, s. 1, effective December 1, 2013, in subsection (a), added “or an immediate family member of the public officer or public employee” and made related stylistic changes, and added the second sentence. For applicability, see Editor’s note.

Session Laws 2013-410, s. 27.8, effective August 23, 2013, added “for which no filing fee shall be collected” at the end of the third sentence of subsection (b).

Session Laws 2015-87, s. 1, effective October 1, 2015, inserted “or recording” near the beginning of subsection (a); rewrote subsection (b); added subsection (b1); rewrote subsection (c); and substituted “Subsections (b), (b1), and (c)” for “Subsections (b) and (c)” in subsection (e). For applicability, see editor’s note.

Session Laws 2017-102, s. 3, effective July 12, 2017, rewrote the third sentence of subsection (b1), which read: “The clerk of superior court shall not file, index, or docket the document against the property of a public officer or public employee until that document is approved for filing by the clerk of superior court by any judge of the judicial district having subject matter jurisdiction.”

Session Laws 2019-117, s. 3, effective December 1, 2019, inserted “purported” preceding “lien” throughout subsections (b) and (b1); in subsection (a), substituted “an owner or beneficial interest holder” for “a public officer, a public employee, or an immediate family member of the public officer or public employee on account of the performance of the public officer or public employee’s official duties” and deleted the former second sentence, which read: “For purposes of this subsection, the term ‘immediate family member’ means a spouse or a child.”; in subsection (b), in the first sentence, substituted “an instrument purporting to be a lien or encumbrance is materially false, fictitious, or fraudulent” for “the lien or encumbrance is false, as described in subsection (a) of this section” inserted “and the party submitting the instrument shall pay the filing fee in accordance with G.S. 161-10 ” and “for which the party who submitted the instrument shall pay the filing fee in accordance with G.S. 161-10 ” at the end; in subsection (c), deleted “as described in subsection (a) of this section” preceding “and therefore”; and, in subsection (d), substituted “the presentation of an instrument for recording or filing with a register of deeds or clerk of superior court that purports to be a lien or encumbrance that is determined to be materially false, fictitious, or fraudulent” for “a violation of this section.”

Session Laws 2019-243, s. 29(a), effective December 1, 2019, in subsection (b1), substituted “materially false, fictitious, or fraudulent,” for “false as described in subsection (a) of this section” in the first sentence and deleted “of a public officer or public employee” following “against the property” in the third sentence.

§ 14-118.7. Possession, transfer, or use of automated sales suppression device.

  1. Definitions. —  The following definitions apply in this section:
    1. Automated sales suppression device or zapper. — A software program that falsifies the electronic records of electronic cash registers and other point-of-sale systems, including transaction data and transaction reports. The term includes the software program, any device that carries the software program, or an Internet link to the software program.
    2. Electronic cash register. — A device that keeps a register or supporting documents through the use of an electronic device or computer system designed to record transaction data for the purpose of computing, compiling, or processing retail sales transaction data in whatever manner.
    3. Phantom-ware. — A hidden programming option embedded in the operating system of an electronic cash register or hardwired into the electronic cash register that can be used to create a second set of records or may eliminate or manipulate transaction records, which may or may not be preserved in digital formats, to represent the true or manipulated record of transactions in the electronic cash register.
    4. Transaction data. — The term includes items purchased by a customer, the price for each item, a taxability determination for each item, a segregated tax amount for each of the taxed items, the amount of cash or credit tendered, the net amount returned to the customer in change, the date and time of the purchase, the name, address, and identification number of the vendor, and the receipt or invoice number of the transaction.
    5. Transaction report. —  A report that documents, but is not limited to documenting, the sales, taxes, or fees collected, media totals, and discount voids at an electronic cash register and that is printed on cash register tape at the end of a day or shift, or a report that documents every action at an electronic cash register and that is stored electronically.
  2. Offense. —  No person shall knowingly sell, purchase, install, transfer, possess, use, or access any automated sales suppression device, zapper, or phantom-ware.
  3. Penalty. —  Any person convicted of a violation of this section is guilty of a Class H felony with a fine of up to ten thousand dollars ($10,000).
  4. Liability. —  Any person who violates this section is liable for all taxes, fees, penalties, and interest due the State as the result of the use of an automated sales suppression device, zapper, or phantom-ware and shall forfeit to the State as an additional penalty all profits associated with the sale or use of an automated sales suppression device, zapper, or phantom-ware.
  5. Contraband. —  An automated sales suppression device, zapper, or phantom-ware, or any device containing such device or software, is contraband.

History. 2013-301, s. 1.

§§ 14-118.8, 14-118.9.

Reserved for future codification purposes.

Article 20A. Residential Mortgage Fraud Act.

§ 14-118.10. Title.

This Article shall be known and cited as the “Residential Mortgage Fraud Act.”

History. 2007-163, s. 1.

§ 14-118.11. Definitions.

Unless otherwise provided in this Article, the following definitions apply in this Article:

  1. Mortgage lending process. — The process through which a person seeks or obtains a mortgage loan including solicitation, application, origination, negotiation of terms, underwriting, signing, closing, and funding of a mortgage loan and services provided incident to a mortgage loan, including the appraisal of the residential real property. Documents involved in the mortgage lending process include (i) uniform residential loan applications or other loan applications, (ii) appraisal reports, (iii) settlement statements, (iv) supporting personal documentation for loan applications, including W-2 or other earnings or income statements, verifications of rent, income, and employment, bank statements, tax returns, and payroll stubs, and (v) any required mortgage-related disclosures.
  2. Mortgage loan. — A loan primarily secured by either (i) a mortgage or a deed of trust on residential real property or (ii) a security interest in a manufactured home (as defined by G.S. 143-145(7) ) located or to be located on residential real property.
  3. Pattern of residential mortgage fraud. — Residential mortgage fraud that involves five or more mortgage loans, which have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics.
  4. Person. — An individual, partnership, limited liability company, limited partnership, corporation, association, or other entity, however organized.
  5. Residential real property. — Real property located in the State of North Carolina upon which there is located or is to be located a structure or structures designed principally for residential purposes, including, but not limited to, individual units of townhouses, condominiums, and cooperatives.

History. 2007-163, s. 1.

Editor’s Note.

This section was enacted by Session Laws 2007-163, s. 1, with a subsection (a) designation, but no subsection (b). In addition, the definitions contained in subdivisions (1) and (2) as they appeared on the act were not in alphabetical order. The subsection (a) designation has been deleted, and the order of subdivisions (1) and (2) has been reversed, at the direction of the Revisor of Statutes.

§ 14-118.12. Residential mortgage fraud.

  1. A person is guilty of residential mortgage fraud when, for financial gain and with the intent to defraud, that person does any of the following:
    1. Knowingly makes or attempts to make any material misstatement, misrepresentation, or omission within the mortgage lending process with the intention that a mortgage lender, mortgage broker, borrower, or any other person or entity that is involved in the mortgage lending process relies on it.
    2. Knowingly uses or facilitates or attempts to use or facilitate the use of any misstatement, misrepresentation, or omission within the mortgage lending process with the intention that a mortgage lender, borrower, or any other person or entity that is involved in the mortgage lending process relies on it.
    3. Receives or attempts to receive proceeds or any other funds in connection with a residential mortgage closing that the person knew, or should have known, resulted from a violation of subdivision (1) or (2) of this subsection.
    4. Conspires or solicits another to violate any of the provisions of subdivision (1), (2), or (3) of this subsection.
    5. Knowingly files in a public record or a private record generally available to the public a document falsely claiming that a mortgage loan has been satisfied, discharged, released, revoked, or terminated or is invalid.
  2. It shall be sufficient in any prosecution under this Article for residential mortgage fraud to show that the party accused did the act with the intent to deceive or defraud. It shall be unnecessary to show that any particular person or entity was harmed financially in the transaction or that the person or entity to whom the deliberate misstatement, misrepresentation, or omission was made relied upon the misstatement, misrepresentation, or omission.

History. 2007-163, s. 1; 2012-150, s. 5.

Effect of Amendments.

Session Laws 2012-150, s. 5, effective December 1, 2012, added subdivision (a)(5). For applicability, see editor’s note.

§ 14-118.13. Venue.

In any criminal proceeding brought under this Article, the crime shall be construed to have been committed:

  1. In the county in which the residential real property for which a mortgage loan is being sought is located;
  2. In any county in which any act was performed in furtherance of the violation;
  3. In any county in which any person alleged to have violated this Article had control or possession of any proceeds of the violation;
  4. If a closing occurred, in any county in which the closing occurred; or
  5. In any county in which a document containing a deliberate misstatement, misrepresentation, or omission is filed with the official registrar of deeds or with the Division of Motor Vehicles.

History. 2007-163, s. 1.

§ 14-118.14. Authority to investigate and prosecute.

Upon its own investigation or upon referral by the Office of the Commissioner of Banks, the North Carolina Real Estate Commission, the Attorney General, the North Carolina Appraisal Board, or other parties, of available evidence concerning violations of this Article, the proper district attorney may institute the appropriate criminal proceedings under this Article.

History. 2007-163, s. 1.

§ 14-118.15. Penalty for violation of Article.

  1. Unless the conduct is prohibited by some other provision of law providing for greater punishment, a violation of this Article involving a single mortgage loan is a Class H felony.
  2. Unless the conduct is prohibited by some other provision of law providing for greater punishment, a violation of this Article involving a pattern of residential mortgage fraud is a Class E felony.

History. 2007-163, s. 1.

§ 14-118.16. Forfeiture.

  1. All real and personal property of every kind used or intended for use in the course of, derived from, or realized through a violation of this Article shall be subject to forfeiture to the State as set forth in G.S. 14-2.3 and G.S. 14-7.20 . However, the forfeiture of any real or personal property shall be subordinate to any security interest in the property taken by a lender in good faith as collateral for the extension of credit and recorded as provided by law, and no real or personal property shall be forfeited under this section against an owner who made a bona fide purchase of the property without knowledge of a violation of this Article.
  2. In addition to the provisions of subsection (a) of this section, courts may order restitution to any person that has suffered a financial loss due to violation of this Article.

History. 2007-163, s. 1.

§ 14-118.17. Liability for reporting suspected mortgage fraud.

In the absence of fraud, bad faith, or malice, a person shall not be subject to an action for civil liability for filing reports or furnishing other information regarding suspected residential mortgage fraud to a regulatory or law enforcement agency.

History. 2007-163, s. 1.

Article 21. Forgery.

§ 14-119. Forgery of notes, checks, and other securities; counterfeiting of instruments.

  1. It is unlawful for any person to forge or counterfeit any instrument, or possess any counterfeit instrument, with the intent to injure or defraud any person, financial institution, or governmental unit. Any person in violation of this subsection is guilty of a Class I felony.
  2. Any person who transports or possesses five or more counterfeit instruments with the intent to injure or defraud any person, financial institution, or governmental unit is guilty of a Class G felony.
  3. As used in this Article, the term:
    1. “Counterfeit” means to manufacture, copy, reproduce, or forge an instrument that purports to be genuine, but is not, because it has been falsely copied, reproduced, forged, manufactured, embossed, encoded, duplicated, or altered.
    2. “Financial institution” means any mutual fund, money market fund, credit union, savings and loan association, bank, or similar institution, either foreign or domestic.
    3. “Governmental unit” means the United States, any United States territory, any state of the United States, any political subdivision, agency, or instrumentality of any state, or any foreign jurisdiction.
    4. “Instrument” means (i) any currency, bill, note, warrant, check, order, or similar instrument of or on any financial institution or governmental unit, or any cashier or officer of the institution or unit; or (ii) any security issued by, or on behalf of, any corporation, financial institution, or governmental unit.

History. 1819, c. 994, s. 1, P.R; R.C., c. 34, s. 60; Code, s. 1030; Rev., s. 3419; C.S., s. 4293; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 397, s. 1; 2002-175, s. 1.

Cross References.

As to alleging intent in the indictment, see G.S. 15-151 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For survey of 1976 case law on criminal law, see 55 N.C.L. Rev. 976 (1977).

Editor’s Note. —

Many of the cases below were decided prior to the 1983 and 2002 amendments, each of which rewrote this section.

Editor’s Note. —

Reserved for Future Annotations.

CASE NOTES

Analysis

I.General Consideration
II.Forgery, Generally

The common-law definition of forgery obtains in this State, the statute not attempting to define it. Peoples Bank & Trust Co. v. Fidelity & Cas. Co., 231 N.C. 510 , 57 S.E.2d 809, 1950 N.C. LEXIS 494 (1950).

Forgery Defined. —

Forgery, at common law, denotes a false making, a making malo animo, of any written instrument for the purpose of fraud and deceit. Peoples Bank & Trust Co. v. Fidelity & Cas. Co., 231 N.C. 510 , 57 S.E.2d 809, 1950 N.C. LEXIS 494 (1950).

Forgery may generally be defined as the false making or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability. Peoples Bank & Trust Co. v. Fidelity & Cas. Co., 231 N.C. 510 , 57 S.E.2d 809, 1950 N.C. LEXIS 494 (1950).

Relationship to Other Crimes. —

There is no authority indicating that the crimes of larceny of a chose in action, forgery, and uttering a forged paper or instrument are mutually exclusive. Therefore, the trial court did not err in failing to instruct the jury that the crimes were mutually exclusive. State v. Grier, 224 N.C. App. 150, 735 S.E.2d 434, 2012 N.C. App. LEXIS 1371 (2012).

Uttering Distinct from Forgery. —

By virtue of G.S. 14-120 , uttering is an offense distinct from that of forgery, which is defined in this section. State v. Greenlee, 272 N.C. 651 , 159 S.E.2d 22, 1968 N.C. LEXIS 710 (1968); State v. Treadway, 27 N.C. App. 78, 217 S.E.2d 743, 1975 N.C. App. LEXIS 1755 (1975).

Forgery of Money Order and Forgery of Endorsement Are Separate Offenses. —

To convict of the felony of forging endorsements under the second sentence of G.S. 14-120 , it was not necessary to allege or to prove forgery of the face of money orders, which would have been separate felonies under this section. State v. Sutton, 14 N.C. App. 422, 188 S.E.2d 596, 1972 N.C. App. LEXIS 2144 (1972).

Elements of Offense. —

To constitute an indictable forgery, it is not alone sufficient that there be a writing, and that the writing be false; it must also be such as, if true, would be of some legal efficacy, real or apparent, since otherwise it has no legal tendency to defraud. Barnes v. Crawford, 115 N.C. 76 , 20 S.E. 386, 1894 N.C. LEXIS 188 (1894).

The essentials to the completion of the offense of forgery are: (a) The falsification of a paper, or the making of a false paper, of legal efficacy, “apparently capable of effecting a fraud;” (b) the fraudulent intent. Peoples Bank & Trust Co. v. Fidelity & Cas. Co., 231 N.C. 510 , 57 S.E.2d 809, 1950 N.C. LEXIS 494 (1950).

Three elements are necessary to constitute the offense of forgery: (1) There must be a false making or alteration of some instrument in writing; (2) there must be a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud. State v. Phillips, 256 N.C. 445 , 124 S.E.2d 146, 1962 N.C. LEXIS 467 (1962); State v. Keller, 268 N.C. 522 , 151 S.E.2d 56, 1966 N.C. LEXIS 1245 (1966); State v. Greenlee, 272 N.C. 651 , 159 S.E.2d 22, 1968 N.C. LEXIS 710 (1968); State v. Bauguess, 13 N.C. App. 457, 186 S.E.2d 185, 1972 N.C. App. LEXIS 2263 (1972); State v. McAllister, 287 N.C. 178 , 214 S.E.2d 75, 1975 N.C. LEXIS 1075 (1975); State v. Dunbar, 47 N.C. App. 623, 267 S.E.2d 577, 1980 N.C. App. LEXIS 3153 (1980); State v. Seraphem, 90 N.C. App. 368, 368 S.E.2d 643, 1988 N.C. App. LEXIS 540 (1988).

Two essential elements of forgery are the false making of an instrument and the appearance of the instrument as genuine. State v. Prince, 49 N.C. App. 145, 270 S.E.2d 521, 1980 N.C. App. LEXIS 3350 (1980).

Intent to defraud is an essential element of the crime of forgery. State v. Greene, 12 N.C. App. 687, 184 S.E.2d 523, 1971 N.C. App. LEXIS 1436 (1971).

But It Is Not Essential That Anyone Actually Be Defrauded. —

While an intent to defraud is an essential element of forgery, it is not essential that any person be actually defrauded, or that any act be done other than the fraudulent making or altering of the instrument. State v. White, 101 N.C. 770 , 7 S.E. 715, 1888 N.C. LEXIS 141 (1888), aff'd, 132 U.S. 131, 10 S. Ct. 47, 33 L. Ed. 287, 1889 U.S. LEXIS 1850 (1889); State v. Hall, 108 N.C. 776 , 13 S.E. 189, 1891 N.C. LEXIS 143 (1891); State v. Williams, 291 N.C. 442 , 230 S.E.2d 515, 1976 N.C. LEXIS 1004 (1976).

Time is not of the essence in the crimes of forgery and uttering a forged check. State v. Prince, 49 N.C. App. 145, 270 S.E.2d 521, 1980 N.C. App. LEXIS 3350 (1980).

Forging Signature of Another. —

An instrument may be a forgery even though in itself it is not false in any particular, if there is a fraudulent intent that the signature should pass or be received as the genuine act of another person whose signing, only, could make the paper valid and effectual. Peoples Bank & Trust Co. v. Fidelity & Cas. Co., 231 N.C. 510 , 57 S.E.2d 809, 1950 N.C. LEXIS 494 (1950).

A person without a bank account who signs his name to checks and presents them to the bank with intent that the signature should be taken as that of another of the same or similar name who has funds on deposit, and cashes the checks fraudulently and with knowledge that he was withdrawing from the bank the funds of such other person, is guilty of forgery. Peoples Bank & Trust Co. v. Fidelity & Cas. Co., 231 N.C. 510 , 57 S.E.2d 809, 1950 N.C. LEXIS 494 (1950).

Real and Forged Signatures Need Not Be Identical. —

An instrument is nonetheless a forgery where the signature is not identical with that of the person whose signature it is intended to simulate, if they are sufficiently similar for the doctrine of idem sonans to apply, and the insertion of a middle initial not in the signature simulated is not a fatal variance. Peoples Bank & Trust Co. v. Fidelity & Cas. Co., 231 N.C. 510 , 57 S.E.2d 809, 1950 N.C. LEXIS 494 (1950).

The fact that the drawer of a check lacks authority is one characteristic which renders an instrument false. State v. McAllister, 287 N.C. 178 , 214 S.E.2d 75, 1975 N.C. LEXIS 1075 (1975); State v. Dunbar, 47 N.C. App. 623, 267 S.E.2d 577, 1980 N.C. App. LEXIS 3153 (1980).

Presumption of Authority. —

Where defendant signs the name of another person to an instrument, there is no presumption of want of authority; on the contrary, where it appears that accused signed the name of another to an instrument, it is presumed that he did so with authority. State v. Phillips, 256 N.C. 445 , 124 S.E.2d 146, 1962 N.C. LEXIS 467 (1962).

State Must Show Want of Authority. —

If the purported maker is a real person and actually exists, the State is required to show not only that the signature in question is not genuine, but that it was made by defendant without authority. State v. Phillips, 256 N.C. 445 , 124 S.E.2d 146, 1962 N.C. LEXIS 467 (1962); State v. Dunbar, 47 N.C. App. 623, 267 S.E.2d 577, 1980 N.C. App. LEXIS 3153 (1980); State v. Shipman, 77 N.C. App. 650, 335 S.E.2d 912, 1985 N.C. App. LEXIS 4184 (1985).

Constitutionality of Presumption of Forgery. —

In a prosecution for forging and uttering forged checks, the trial court’s instruction that when a person in possession of a forged check attempts to obtain money or advances upon it, a presumption is raised that the defendant either forged or consented to the forging of such check and, nothing else appearing, the defendant would be presumed guilty of forgery, described a mere permissive inference, which did not violate due process, since (1) there was a rational connection between the basic and elemental facts such that upon proof of the basic facts (possession of a forged check and attempting to obtain money from it), the elemental facts (either forged or consented to forging of such check) are more likely to exist, and (2) there was other evidence in the case which, taken together with the inference, was sufficient for a jury to find the elemental facts beyond a reasonable doubt. State v. Roberts, 51 N.C. App. 221, 275 S.E.2d 536, 1981 N.C. App. LEXIS 2217 (1981).

Refusal to Charge on Presumption of Authority. —

In a prosecution for forgery and uttering forged checks, the trial court did not err in refusing to charge that when a defendant signs the name of another to an instrument it is presumed he did so with authority, where the defendant offered no evidence that he signed the checks with authority, but testified that he had never seen the checks. State v. Roberts, 51 N.C. App. 221, 275 S.E.2d 536, 1981 N.C. App. LEXIS 2217 (1981).

Signing Fictitious Name. —

If the name signed to a negotiable instrument or other instrument requiring a signature is fictitious, of necessity, the name must have been affixed by one without authority, and if a person signs a fictitious name to such instrument with the purpose and intent to defraud, the instrument being sufficient in form to import legal liability, an indictable forgery is committed. State v. Phillips, 256 N.C. 445 , 124 S.E.2d 146, 1962 N.C. LEXIS 467 (1962); State v. Dunbar, 47 N.C. App. 623, 267 S.E.2d 577, 1980 N.C. App. LEXIS 3153 (1980); State v. Shipman, 77 N.C. App. 650, 335 S.E.2d 912, 1985 N.C. App. LEXIS 4184 (1985).

Proof of Fictitious Name. —

In a prosecution for forgery it was not necessary for the State to prove that the name “B. Hansely” signed by defendant to three checks was that of a fictitious person or a real person, since the evidence showed that the instrument was executed without authority, as neither “B. Hansely” nor the name of defendant appeared on the signature card of the S & M Paint Company account, upon which the checks in question were written; moreover, proof that no person bearing the name signed to a check has any right to draw on the party to whom it is directed is prima facie evidence that the name is fictitious. State v. Dunbar, 47 N.C. App. 623, 267 S.E.2d 577, 1980 N.C. App. LEXIS 3153 (1980).

Evidence Held Sufficient. —

Evidence that defendant signed the name of another in endorsing a check payable to such other person and negotiating it, that such other person had not authorized anyone to sign his name on the check, and that such person was not owed the amount of the check, was held sufficient to overrule nonsuit in a prosecution for violation of this section and G.S. 14-120 . State v. Coleman, 253 N.C. 799 , 117 S.E.2d 742, 1961 N.C. LEXIS 437 (1961).

Evidence that two checks had been forged and that defendant cashed them was sufficient circumstantial evidence for the jury to find that defendant forged the checks, even without eyewitness testimony that defendant wrote the checks and without expert testimony that his handwriting was on the checks. State v. Prince, 49 N.C. App. 145, 270 S.E.2d 521, 1980 N.C. App. LEXIS 3350 (1980).

III.Evidence

There is no requirement that the check upon which an endorsement was allegedly forged be in evidence. State v. Nicholson, 78 N.C. App. 398, 337 S.E.2d 654, 1985 N.C. App. LEXIS 4314 (1985).

Evidence of Former Acts. —

Upon an indictment for uttering forged money, knowing it to be forged, evidence may be received of former acts and transactions which tend to bring home the scienter to the defendant, notwithstanding such evidence may fix upon him other charges beside that on which he is tried. State v. Twitty, 9 N.C. 248 , 1822 N.C. LEXIS 56 (1822).

In a prosecution for forgery and issuing a forged instrument under this section and G.S. 14-120 , evidence that defendant had theretofore forged checks other than those specified in the indictment may be competent on the question of intent. State v. Painter, 265 N.C. 277 , 144 S.E.2d 6, 1965 N.C. LEXIS 966 (1965).

Evidence of Related Offenses. —

In a prosecution of defendant for conspiracy to commit forgery and conspiracy to utter forged instruments, the trial court did not err in admitting testimony by a State’s witness that defendant had been involved in the commission of an offense other than the ones for which he was being tried, since the other offense was a break-in during which a check writer and checks were taken from a cabinet shop, and this was a part of the overall scheme which embraced the related offenses for which defendant was being tried and tended to connect him with those offenses; therefore, defendant himself opened the door to such testimony by inquiring further into charges pending against the State’s witness. State v. Pruitt, 301 N.C. 683 , 273 S.E.2d 264, 1981 N.C. LEXIS 1015 (1981).

Teller’s Identification of Defendant. —

In a prosecution of defendant for uttering a forged check, the trial court properly admitted a bank teller’s identification of defendant from a photographic display, since the procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. State v. McCullough, 50 N.C. App. 184, 272 S.E.2d 613, 1980 N.C. App. LEXIS 3461 (1980).

Signing Name Other Than Name on Signature Authorization Card. —

Where checks were drawn on a name other than the sole name on the signature authorization card of the checking account, there was evidence that the checks were falsely made. See State v. Seraphem, 90 N.C. App. 368, 368 S.E.2d 643, 1988 N.C. App. LEXIS 540 (1988).

Evidence Sufficient. —

Motion to dismiss forgery charge was properly denied under circumstances in which the State presented evidence in the form of testimony by a witness that defendant brought to her house a check made out to her on an account bearing the victim’s name, and that defendant told her it belonged to his uncle and asked her to cash it for him, signing the check or entering her name as payee in her presence. State v. Fraley, 182 N.C. App. 683, 643 S.E.2d 39, 2007 N.C. App. LEXIS 806 (2007).

Evidence Insufficient to Support Convictions. —

Trial court erred in failing to dismiss all but three of the forgery and uttering convictions because defendant signed her own name to the withdrawal slips on the other ten occasions. State v. King, 178 N.C. App. 122, 630 S.E.2d 719, 2006 N.C. App. LEXIS 1307 (2006).

IV.Indictment

Indictment Must Set Forth All Essential Elements. —

Even though the offense of forgery is charged in statutory language in the bill of indictment, in order to be a valid bill of indictment it is necessary that the statutory words be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged. State v. Cross, 5 N.C. App. 217, 167 S.E.2d 868, 1969 N.C. App. LEXIS 1316 (1969).

Alleged Alteration Should Be Indicated. —

Where the alteration of a genuine instrument is charged, an indictment for forgery must clearly set forth the alteration alleged, with the proper allegations showing alteration of a material part of the instrument. Thus, in an indictment for forgery effected by interpolating words in a genuine instrument, as by raising the amount of a note, the added words should be quoted and their position in the instrument shown, so that it may appear how they affect its meaning. State v. Cross, 5 N.C. App. 217, 167 S.E.2d 868, 1969 N.C. App. LEXIS 1316 (1969).

Tendency to Prejudice Rights of Another Must Be Shown. —

The false instrument must be such as does, or may, tend to prejudice the right of another, and such tendency must be apparent to the court, either from the face of the writing itself, or from it, accompanied by the averment of extraneous facts, that show the tendency to injure. If the forged writing itself shows such tendency, then it will be sufficient to set it forth in the indictment, alleging the false and fraudulent intent; but where such tendency does not so appear, the extraneous facts, necessary to make it apparent, must be averred. This is essential, so as to enable the court to see in the record, that the indictment charges a complete offense. State v. Treadway, 27 N.C. App. 78, 217 S.E.2d 743, 1975 N.C. App. LEXIS 1755 (1975).

Allegation of Existence of Bank Which Issued Note. —

In an indictment concerning the making, passing, etc., of counterfeit bank notes, if the note alleged to have been passed be of a bank not within the State, the indictment should aver that such a bank exists as that by which the counterfeit note purports to have been issued. State v. Twitty, 9 N.C. 248 , 1822 N.C. LEXIS 56 (1822).

V.Instructions

An instruction including the requirement that there be a false making encompasses the requirement that the instrument be drawn by one who lacks authority. State v. McAllister, 287 N.C. 178 , 214 S.E.2d 75, 1975 N.C. LEXIS 1075 (1975); State v. Dunbar, 47 N.C. App. 623, 267 S.E.2d 577, 1980 N.C. App. LEXIS 3153 (1980).

An instruction that executing a check on a bank account by signing a name not authorized by the signature card would be a false making of a check is a proper charge on the element that the instrument be false. State v. Dunbar, 47 N.C. App. 623, 267 S.E.2d 577, 1980 N.C. App. LEXIS 3153 (1980).

The sentence “the check appeared to be genuine” in a jury instruction adequately states the third element of forgery, that the check as made was apparently capable of defrauding. State v. Monds, 36 N.C. App. 510, 245 S.E.2d 369, 1978 N.C. App. LEXIS 2537 , cert. denied, 295 N.C. 556 , 248 S.E.2d 733, 1978 N.C. LEXIS 1062 (1978).

VI.Sentencing

Violation as Felony. —

A contention that the punishment for forging and uttering a check in violation of this section and G.S. 14-120 , by analogy to G.S. 14-72 , should be limited to the punishment imposed for a misdemeanor is untenable, since a violation of each section is a felony and the court has no power to amend an act of the General Assembly. State v. Davis, 267 N.C. 126 , 147 S.E.2d 570, 1966 N.C. LEXIS 995 (1966).

Sentences Within Prescribed Limits. —

Where the sentences imposed on defendant’s plea of guilty, understandingly and voluntarily made, are within the limits prescribed by this section and G.S. 14-120 , such sentences cannot be considered cruel or unusual in the constitutional sense. State v. Newell, 268 N.C. 300 , 150 S.E.2d 405, 1966 N.C. LEXIS 1190 (1966).

A sentence of five years’ imprisonment imposed upon defendant’s plea of guilty to the charge of forging a check in the amount of $45.00 was within the maximum authorized by this section. State v. Bolder, 8 N.C. App. 343, 174 S.E.2d 139, 1970 N.C. App. LEXIS 1564 (1970).

§ 14-120. Uttering forged paper or instrument containing a forged endorsement.

If any person, directly or indirectly, whether for the sake of gain or with intent to defraud or injure any other person, shall utter or publish any such false, forged or counterfeited instrument as is mentioned in G.S. 14-119 , or shall pass or deliver, or attempt to pass or deliver, any of them to another person (knowing the same to be falsely forged or counterfeited) the person so offending shall be punished as a Class I felon. If any person, directly or indirectly, whether for the sake of gain or with intent to defraud or injure any other person, shall falsely make, forge or counterfeit any endorsement on any instrument described in the preceding section, whether such instrument be genuine or false, or shall knowingly utter or publish any such instrument containing a false, forged or counterfeited endorsement or, knowing the same to be falsely endorsed, shall pass or deliver or attempt to pass or deliver any such instrument containing a forged endorsement to another person, the person so offending shall be guilty of a Class I felony.

History. 1819, c. 994, s. 2, P.R; R.C., c. 34, s. 61; Code, s. 1031; Rev., s. 3427; 1909, c. 666; C.S., s. 4294; 1961, c. 94; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 397, s. 2; 1993, c. 539, s. 1185; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Relationship to Other Crimes. —

There is no authority indicating that the crimes of larceny of a chose in action, forgery, and uttering a forged paper or instrument are mutually exclusive. Therefore, the trial court did not err in failing to instruct the jury that the crimes were mutually exclusive. State v. Grier, 224 N.C. App. 150, 735 S.E.2d 434, 2012 N.C. App. LEXIS 1371 (2012).

Section 90-108(a)(10) Distinguished. —

This section is distinguishable from G.S. 90-108(a)(10), as this section specifically states that a person violates the statute if he publishes or utters a forged instrument “knowing the same to be falsely forged or counterfeited,” and no such language appears in G.S. 90-108(a)(10). State v. Baynard, 79 N.C. App. 559, 339 S.E.2d 810, 1986 N.C. App. LEXIS 2099 (1986).

Elements of the Offense. —

The mere offer of the false instrument with fraudulent intent constitutes an uttering or publishing, the essence of the offense being, as in the case of forgery, the fraudulent intent regardless of its successful consummation. State v. Greenlee, 272 N.C. 651 , 159 S.E.2d 22, 1968 N.C. LEXIS 710 (1968); State v. Seraphem, 90 N.C. App. 368, 368 S.E.2d 643, 1988 N.C. App. LEXIS 540 (1988).

Uttering a forged instrument consists in offering to another the forged instrument with the knowledge of the falsity of the writing and with intent to defraud. State v. Greenlee, 272 N.C. 651 , 159 S.E.2d 22, 1968 N.C. LEXIS 710 (1968); State v. Jackson, 19 N.C. App. 749, 200 S.E.2d 199, 1973 N.C. App. LEXIS 1758 (1973).

The essential elements of the crime of uttering a forged check are (1) the offer of a forged check to another, (2) with knowledge that the check is false, and (3) with the intent to defraud or injure another. State v. Hill, 31 N.C. App. 248, 229 S.E.2d 810, 1976 N.C. App. LEXIS 1965 (1976); State v. Thompson, 62 N.C. App. 585, 303 S.E.2d 85, 1983 N.C. App. LEXIS 2939 (1983).

Uttering is accomplished either when an individual passes or delivers a forged instrument or attempts to pass or deliver a forged instrument. State v. Kirkpatrick, 343 N.C. 285 , 470 S.E.2d 54, 1996 N.C. LEXIS 278 (1996).

Pecuniary Gain. —

It is error for a trial court to consider pecuniary gain as a factor in aggravation of a sentence for feloniously uttering a check, since pecuniary gain is inherent in the offense of felonious uttering. State v. Thompson, 62 N.C. App. 585, 303 S.E.2d 85, 1983 N.C. App. LEXIS 2939 (1983).

To convict a defendant of uttering a check with a forged endorsement, the State is required to prove beyond a reasonable doubt that (1) defendant passed a check, (2) such check contained an endorsement which was forged, (3) defendant knew that such endorsement was forged and (4) defendant acted for the sake of gain or with the intent to defraud or injure any other person. State v. Forte, 80 N.C. App. 701, 343 S.E.2d 261, 1986 N.C. App. LEXIS 2239 , writ denied, 316 N.C. 735 , 345 S.E.2d 400, 1986 N.C. LEXIS 2269 (1986).

Time is not of the essence in the crimes of forgery and uttering a forged check. State v. Prince, 49 N.C. App. 145, 270 S.E.2d 521, 1980 N.C. App. LEXIS 3350 (1980).

“Directly or Indirectly.” —

A check filled out by the payee at the direction of the drawer falls within the meaning of the words “directly or indirectly” as used in this section. State v. Cranfield, 238 N.C. 110 , 76 S.E.2d 353, 1953 N.C. LEXIS 388 (1953).

Delivering to Agent. —

It is putting spurious paper into circulation, and not defrauding the individual who takes it, that the State has in view. Hence, upon a similar statute, it was held that delivering a forged note to an agent, that he might dispose of it in buying goods, was a passing within the act. State v. Harris, 27 N.C. 287 , 1844 N.C. LEXIS 125 (1844).

Uttering Distinct from Forgery. —

By virtue of this section, uttering is an offense distinct from that of forgery which is defined in G.S. 14-119 . State v. Greenlee, 272 N.C. 651 , 159 S.E.2d 22, 1968 N.C. LEXIS 710 (1968); State v. Treadway, 27 N.C. App. 78, 217 S.E.2d 743, 1975 N.C. App. LEXIS 1755 (1975).

Forgery of Money Order and Forgery of Endorsement Are Separate Offenses. —

To convict of the felony of forging endorsements under the second sentence of this section, it was not necessary to allege or prove forgery of the face of money orders, which would have been separate felonies under G.S. 14-119 . State v. Sutton, 14 N.C. App. 422, 188 S.E.2d 596, 1972 N.C. App. LEXIS 2144 (1972).

Evidence of Former Acts. —

In a prosecution for forgery and issuing a forged instrument under this section and G.S. 14-119 , evidence that defendant had theretofore forged checks other than those specified in the indictment may be competent on the question of intent. State v. Painter, 265 N.C. 277 , 144 S.E.2d 6, 1965 N.C. LEXIS 966 (1965).

Evidence of Charged Offenses. —

Trial court did not err in denying defendant’s motion to dismiss the charges of forgery of a check and uttering a false check because the State presented substantial evidence that defendant wrote and signed the victim’s check without his authority. State v. McSwain, 277 N.C. App. 522, 860 S.E.2d 36, 2021- NCCOA-216, 2021 N.C. App. LEXIS 213 (2021).

Evidence of Related Offenses. —

In a prosecution of defendant for conspiracy to commit forgery, and conspiracy to utter forged instruments, the trial court did not err in admitting testimony by a State’s witness that defendant had been involved in the commission of an offense other than the ones for which he was being tried, since the other offense was a break-in during which a check writer and checks were taken from a cabinet shop, and this was a part of the overall scheme which embraced the related offenses for which defendant was being tried and tended to connect him with those offenses; therefore, defendant himself opened the door to such testimony by inquiring further into charges pending against the State’s witness. State v. Pruitt, 301 N.C. 683 , 273 S.E.2d 264, 1981 N.C. LEXIS 1015 (1981).

In a prosecution for uttering a forged instrument (G.S. 14-120) and attempting to obtain property by false pretenses (G.S. 14-100), the trial court did not err in admitting a second forged check under G.S. 8C-1 , N.C. R. Evid. 404(b), as it was relevant to undercut defendant’s explanations for possessing the check at issue and establish his intent to defraud, and the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury under G.S. 8C-1 , N.C. R. Evid. 403. State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163, 2012 N.C. App. LEXIS 515 (2012), writ denied, 367 N.C. 790 , 766 S.E.2d 670, 2014 N.C. LEXIS 1139 (2014).

Evidence Held Sufficient. —

Direct evidence was sufficient to go to the jury for its consideration of whether defendant possessed the requisite knowledge that the endorsement on a check which he passed was forged, where the jury could reasonably infer from established facts that defendant removed check from file, endorsed the check himself or had someone else do it, and presented the check with knowledge of the forged endorsement. State v. Forte, 80 N.C. App. 701, 343 S.E.2d 261, 1986 N.C. App. LEXIS 2239 , writ denied, 316 N.C. 735 , 345 S.E.2d 400, 1986 N.C. LEXIS 2269 (1986).

State presented substantial circumstantial evidence that the defendant knew she possessed and uttered forged instruments; central to the State’s case were the conflicting stories which the defendant presented regarding the checks’ origins and if a jury were to view these changes as evidence of prefabrication, it could infer that the defendant knew the checks were forged; additionally, the State showed the defendant, when negotiating each check, lied to the recipient about the check’s origin and from this the jury could infer that the defendant doubted the legitimacy of these transactions. State v. Sanders, 95 N.C. App. 494, 383 S.E.2d 409, 1989 N.C. App. LEXIS 809 (1989).

Trial court erred in failing to dismiss all but three of the forgery and uttering convictions because defendant signed her own name to the withdrawal slips on the other ten occasions. State v. King, 178 N.C. App. 122, 630 S.E.2d 719, 2006 N.C. App. LEXIS 1307 (2006).

Witness’s testimony that she had in her possession her employer’s valid check bearing the same number as the check defendant attempted to cash; and that the font of the check that he presented to a bank teller was different from the font used by her employer in printing its checks, was sufficient to convict defendant of uttering a forged instrument. State v. Conley, 220 N.C. App. 50, 724 S.E.2d 163, 2012 N.C. App. LEXIS 515 (2012), writ denied, 367 N.C. 790 , 766 S.E.2d 670, 2014 N.C. LEXIS 1139 (2014).

There is no requirement that the check upon which an endorsement was allegedly forged be in evidence. State v. Nicholson, 78 N.C. App. 398, 337 S.E.2d 654, 1985 N.C. App. LEXIS 4314 (1985).

Instructions as to Forgery — Presumption of Authority. —

In a prosecution for forgery and uttering forged checks, the trial court did not err in refusing to charge that when a defendant signs the name of another to an instrument it is presumed he did so with authority where the defendant offered no evidence that he signed the checks with authority but testified that he had never seen the checks. State v. Roberts, 51 N.C. App. 221, 275 S.E.2d 536, 1981 N.C. App. LEXIS 2217 (1981).

Same — Inference Arising from Attempt to Obtain Money. —

In a prosecution for forging and uttering forged checks, the trial court’s instruction that when a person in possession of a forged check attempts to obtain money or advances upon it, a presumption is raised that the defendant either forged or consented to the forging of such check and, nothing appearing, the defendant would be presumed guilty of forgery described a mere permissive inference which did not violate due process since (1) there was a rational connection between the basic and elemental facts such that upon proof of the basic facts (possession of a forged check and attempting to obtain money from it), the elemental facts (either forged or consented to forging of such check) are more likely to exist, and (2) there was other evidence in the case which, taken together with the inference, was sufficient for a jury to find the elemental facts beyond a reasonable doubt. State v. Roberts, 51 N.C. App. 221, 275 S.E.2d 536, 1981 N.C. App. LEXIS 2217 (1981).

Punishment. —

Where the sentences imposed on defendant’s plea of guilty, understandingly and voluntarily made, are within the limits prescribed by this section and G.S. 14-119 , such sentences cannot be considered cruel or unusual in the constitutional sense. State v. Newell, 268 N.C. 300 , 150 S.E.2d 405, 1966 N.C. LEXIS 1190 (1966).

A contention that the punishment for forging and uttering a check in violation of this section and G.S. 14-119 , by analogy to G.S. 14-72 , should be limited to the punishment imposed for a misdemeanor is untenable since a violation of each section is a felony and the court has no power to amend an act of the General Assembly. State v. Davis, 267 N.C. 126 , 147 S.E.2d 570, 1966 N.C. LEXIS 995 (1966).

Status as Habitual Felon. —

Trial court did not err in considering defendant’s prior adjudication as an habitual felon as a nonstatutory aggravating factor when sentencing defendant for uttering an instrument bearing a forged endorsement. State v. Kirkpatrick, 123 N.C. App. 86, 472 S.E.2d 371, 1996 N.C. App. LEXIS 561 (1996), aff'd, 345 N.C. 451 , 480 S.E.2d 400, 1997 N.C. LEXIS 7 (1997).

§ 14-121. Selling of certain forged securities.

If any person shall sell, by delivery, endorsement or otherwise, to any other person, any judgment for the recovery of money purporting to have been rendered by a magistrate, or any bond, promissory note, bill of exchange, order, draft or liquidated account purporting to be signed by the debtor (knowing the same to be forged), the person so offending shall be punished as a Class H felon.

History. R.C., c. 34, s. 63; Code, s. 1033; Rev., s. 3425; C.S., s. 4295; 1973, c. 108, s. 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1186; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-122. Forgery of deeds, wills and certain other instruments.

If any person, of his own head and imagination, or by false conspiracy or fraud with others, shall wittingly and falsely forge and make, or shall cause or wittingly assent to the forging or making of, or shall show forth in evidence, knowing the same to be forged, any deed, lease or will, or any bond, writing obligatory, bill of exchange, promissory note, endorsement or assignment thereof; or any acquittance or receipt for money or goods; or any receipt or release for any bond, note, bill or any other security for the payment of money; or any order for the payment of money or delivery of goods, with intent, in any of said instances, to defraud any person or corporation, and thereof shall be duly convicted, the person so offending shall be punished as a Class H felon.

History. 5 Eliz., c. 14, ss. 2, 3; 21 James I, c. 26; 1801, c. 572, P.R; R.C., c. 34, s. 59; Code, s. 1029; Rev., s. 3424; C.S., s. 4296; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1187; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to uttering a false bill of lading, see G.S. 21-42 .

As to forgery of certificate of discharge from the Armed Forces of the United States, see G.S. 47-112 .

CASE NOTES

Intent to Deceive Is Sufficient. —

Differing from false pretenses, it is not an element of this offense that the forgery was “calculated to deceive and did deceive”; intent alone suffices to constitute the crime. State v. Hall, 108 N.C. 776 , 13 S.E. 189, 1891 N.C. LEXIS 143 (1891); State v. Collins, 115 N.C. 716 , 20 S.E. 452, 1894 N.C. LEXIS 300 (1894).

It is immaterial to whom the advantages of the forgery would accrue. State v. White, 101 N.C. 770 , 7 S.E. 715, 1888 N.C. LEXIS 141 (1888), aff'd, 132 U.S. 131, 10 S. Ct. 47, 33 L. Ed. 287, 1889 U.S. LEXIS 1850 (1889).

An instrument in writing on which forgery can be predicated is one which, if genuine, could operate as the foundation of another man’s liability, or the evidence of his rights, such as a letter of recommendation of a person as a man of property and pecuniary responsibility, an order for the delivery of goods, a receipt, or a railroad pass, as well as a bill of exchange, or other express contract. Barnes v. Crawford, 115 N.C. 76 , 20 S.E. 386, 1894 N.C. LEXIS 188 (1894).

To constitute an “order for the delivery of goods,” a forgery within the meaning of this section, there must appear to be a drawer, a person drawn upon, who is under obligation to obey, and there must appear to be a person to whom the goods are to be delivered, and if the paper writing set forth in the indictment as a forgery does not contain these requisites, there cannot be a conviction for forgery under this section, State v. Lamb, 65 N.C. 419 (1871); but in such case a conviction will be sustained for the offense at common law. State v. Leak, 80 N.C. 403 , 1879 N.C. LEXIS 109 (1879).

Falsely putting a witness’ name to a bond not required to be attested by a subscribing witness does not affect the validity of the bond, and is not forgery. State v. Gherkin, 29 N.C. 206 , 1847 N.C. LEXIS 13 (1847).

Erasure of Obliteration Not a Forgery. —

Obliterating by erasure, or otherwise, a release or acquittance on the back of a bond or elsewhere, with the intent to defraud any person thereby, is not according to the law of North Carolina, a forgery. State v. Thornburg, 28 N.C. 79 , 1845 N.C. LEXIS 23 (1845).

Forgery of One of Two Names. —

Where the alleged forged instrument has the names of two or more persons affixed, it is sufficient if one of them is proved to have been forged. State v. White, 101 N.C. 770 , 7 S.E. 715, 1888 N.C. LEXIS 141 (1888), aff'd, 132 U.S. 131, 10 S. Ct. 47, 33 L. Ed. 287, 1889 U.S. LEXIS 1850 (1889).

Misspelled Signature. —

An indictment lies for forgery of an order for the payment of money, although the signature is misspelled, State v. Covington, 94 N.C. 913 (1886), or the names of a firm are in reverse order if it is clear who the parties intended to be designated are. State v. Lane, 80 N.C. 407 , 1879 N.C. LEXIS 110 (1879).

Possession Raises Presumption of Guilt. —

In State v. Britt, 14 N.C. 122 (1831), Ruffin, J., says: “That the order was not in the handwriting of the defendant did not rebut the legal presumption of his guilt. Being in possession of the forged order, drawn in his own favor, were facts constituting complete proof that, either by himself or by false conspiracy with others, he forged or assented to the forgery of the instrument; that he either did the act or caused it to be done until he showed the actual perpetrator and that he himself was not privy.” To the same effect is State v. Morgan, 19 N.C. 348 (1837). It is wholly immaterial whether the defendant himself forged the order or procured and caused it to be done. In either case his guilt is the same. State v. Lane, 80 N.C. 407 , 1879 N.C. LEXIS 110 (1879).

One possessing a forged instrument is presumed to have either forged it or consented to the forgery, and nothing else appearing such holder will be presumed guilty. State v. Peterson, 129 N.C. 556 , 40 S.E. 9, 1901 N.C. LEXIS 117 (1901).

Where defendant signs the name of another person to an instrument, there is no presumption of want of authority. State v. Martin, 30 N.C. App. 512, 227 S.E.2d 172, 1976 N.C. App. LEXIS 2295 (1976).

Proof of Signature of Another Name to Instrument Without Authority Is Required. —

To show that the defendant signed the name of some other person to an instrument, and that he passed such instrument as genuine, is not sufficient to establish the commission of a crime. It must still be shown that it was a false instrument, and this is not established until it is shown that the person who signed another’s name did so without authority. State v. Martin, 30 N.C. App. 512, 227 S.E.2d 172, 1976 N.C. App. LEXIS 2295 (1976).

Charge in Indictment Where Instrument Is Lost. —

If the forged instrument is lost it is not necessary to set it out in the indictment, and the substance of the forged instrument is all that need be charged, though in such case it would be better practice to aver the loss. State v. Peterson, 129 N.C. 556 , 40 S.E. 9, 1901 N.C. LEXIS 117 (1901).

Instrument Partly Printed and Partly in Writing. —

An indictment for forging “a certain instrument in writing” is supported by proof of the forgery of an instrument partly printed and party in writing. State v. Ridge, 125 N.C. 655 , 34 S.E. 439, 1899 N.C. LEXIS 281 (1899).

Description in Indictment Held Insufficient. —

A description of the forged instrument as a “railroad pass” merely, is insufficient. The circumstances showing authority of the officer whose name is forged, and the obligation of the company to honor it, must be set out in the indictment. State v. Weaver, 94 N.C. 836 , 1886 N.C. LEXIS 148 (1886).

§ 14-122.1. Falsifying documents issued by a secondary school, postsecondary educational institution, or governmental agency.

  1. It shall be unlawful for any person knowingly and willfully:
    1. To make falsely or alter falsely, or to procure to be made falsely or altered falsely, or to aid or assist in making falsely or altering falsely, a diploma, certificate, license, or transcript signifying merit or achievement in an educational program issued by a secondary school, a postsecondary educational institution, or a governmental agency;
    2. To sell, give, buy, or obtain, or to procure to be sold, given, bought, or obtained, or to aid or assist in selling, giving, buying, or obtaining, a diploma, certificate, license, or transcript, which he knows is false, signifying merit or achievement in an educational program issued by a secondary school, a postsecondary educational institution, or a governmental agency;
    3. To use, offer, or present as genuine a falsely made or falsely altered diploma, certificate, license, or transcript signifying merit or achievement in an educational program issued by a secondary school, a postsecondary educational institution, or a governmental agency, which he knows is false; or
    4. To make a false written representation of fact that he has received a degree or other certification signifying merit, achievement, or completion of an educational program involving study, experience, or testing from a secondary school, a postsecondary educational institution or governmental agency in an application for:

      (a) Employment;

  2. Admission to an educational program;
  3. Award; or
  4. For the purpose of inducing another to issue a diploma, certificate, license, or transcript signifying merit or achievement in an educational program of a secondary school, postsecondary educational institution, or a governmental agency.

    (b) As used in this section, “postsecondary educational institution” means a technical college, community college, junior college, college, or university. As used in this section, “governmental agency” means any agency of a State or local government or of the federal government. As used in this section, “secondary school” means grades 9 through 12.

    (c) Any person who violates a provision of this section shall be guilty of a Class 1 misdemeanor.

History. 1981, c. 146, s. 1; 1987, c. 388, s. 1; 1993, c. 539, s. 66; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-123. Forging names to petitions and uttering forged petitions.

If any person shall willfully sign, or cause to be signed, or willfully assent to the signing of the name of any person without his consent, or of any deceased or fictitious person, to any petition or recommendation with the intent of procuring any commutation of sentence, pardon or reprieve of any person convicted of any crime or offense, or for the purpose of procuring such pardon, reprieve or commutation to be refused or delayed by any public officer, or with the intent of procuring from any person whatsoever, either for himself or another, any appointment to office, or to any position of honor or trust, or with the intent to influence the official action of any public officer in the management, conduct or decision of any matter affecting the public, he shall be punished as a Class I felon; and if any person shall willfully use any such paper for any of the purposes or intents above recited, knowing that any part of the signatures to such petition or recommendation has been signed thereto without the consent of the alleged signers, or that names of any dead or fictitious persons are signed thereto, he shall be guilty of a felony, and shall be punished in like manner.

History. 1883, c. 275; Code, s. 1034; Rev., s. 3426; C.S., s. 4297; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-124. Forging certificate of corporate stock and uttering forged certificates.

If any officer or agent of a corporation shall, falsely and with a fraudulent purpose, make, with the intent that the same shall be issued and delivered to any other person by name or as holder or bearer thereof, any certificate or other writing, whereby it is certified or declared that such person, holder or bearer is entitled to or has an interest in the stock of such corporation, when in fact such person, holder or bearer is not so entitled, or is not entitled to the amount of stock in such certificate or writing specified; or if any officer or agent of such corporation, or other person, knowing such certificate or other writing to be false or untrue, shall transfer, assign or deliver the same to another person, for the sake of gain, or with the intent to defraud the corporation, or any member thereof, or such person to whom the same shall be transferred, assigned or delivered, the person so offending shall be punished as a Class I felon.

History. R.C., c. 34, s. 62; Code, s. 1032; Rev., s. 3421; C.S., s. 4298; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

§ 14-125. Forgery of bank notes and other instruments by connecting genuine parts.

If any person shall fraudulently connect together different parts of two or more bank notes, or other genuine instruments, in such a manner as to produce another note or instrument, with intent to pass all of them as genuine, the same shall be deemed a forgery, and the instrument so produced a forged note, or forged instrument, in like manner as if each of them had been falsely made or forged.

History. R.C., c. 34, s. 66; Code, s. 1037; Rev., s. 3420; C.S., s. 4299.

Subchapter VI. Criminal Trespass.

Article 22. Damages and Other Offenses to Land and Fixtures.

§ 14-126. [Repealed]

Repealed by Session Laws 1987, c. 700, s. 2.

Cross References.

As to the offenses of first degree trespass and second degree trespass, see now G.S. 14-159.12 and 14-159.13.

§ 14-127. Willful and wanton injury to real property.

If any person shall willfully and wantonly damage, injure or destroy any real property whatsoever, either of a public or private nature, he shall be guilty of a Class 1 misdemeanor.

History. R.C., c. 34, s. 111; 1873-4, c. 176, s. 5; Code, s. 1081; Rev., s. 3677; C.S., s. 4301; 1967, c. 1083; 1993, c. 539, s. 67; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

This section was designed to avoid the element of malicious ill will required by the common-law crime of malicious mischief. State v. Cannady, 18 N.C. App. 213, 196 S.E.2d 617, 1973 N.C. App. LEXIS 1818 (1973).

Statute does not require that the real property be of another; instead, it criminalizes damaging any real property whatsoever, making the identity of the owner largely irrelevant as long as a defendant has adequate notice to prepare a defense. State v. Spivey, 368 N.C. 739 , 782 S.E.2d 872, 2016 N.C. LEXIS 176 (2016).

Indictment. —

By describing the injured real property as “the restaurant, the property of Katy’s Great Eats,” the indictment, which tracked the language of the statute, sufficiently identified the crime being charged, and because the indictment gave defendant reasonable notice of the charge against him and enabled him to prepare his defense, the indictment was facially valid. State v. Spivey, 368 N.C. 739 , 782 S.E.2d 872, 2016 N.C. LEXIS 176 (2016).

In an indictment alleging injury to real property, identification of the property itself, not the owner or ownership interest, is vital to differentiate between two parcels of property, thereby enabling a defendant to prepare his defense; while the owner or lawful possessor’s name may be used to identify the specific parcel of real estate, it is not an essential element of the offense that must be alleged in the indictment, so long as the indictment gives defendant reasonable notice of the specific parcel of real estate he is accused of injuring, and to the extent State v. Lilly, 195 N.C. App. 697 (2009), is inconsistent with this opinion, it is overruled. State v. Spivey, 368 N.C. 739 , 782 S.E.2d 872, 2016 N.C. LEXIS 176 (2016).

Intent. —

This section requires, as an essential element of the offenses set forth, a showing that defendant “willfully” or “wantonly” caused the damage. State v. Davis, 86 N.C. App. 25, 356 S.E.2d 607, 1987 N.C. App. LEXIS 2667 (1987).

Willfulness. —

It did not matter whether defendant knew for certain if the shrubs were on her property or the neighbor’s property when defendant cut them down, for willfulness purposes, it was for the jury to determine this issue, and the jury opted to believe the neighbor’s testimony that the shrubs were planted on his property, and thus there was sufficient evidence for finding defendant cut them down without justification and there was no error in denying her motion to dismiss. State v. Chamberlain, 232 N.C. App. 246, 753 S.E.2d 725, 2014 N.C. App. LEXIS 117 (2014).

Count Charging Violation of G.S. 14-49 as Embracing a Charge Under This Section. —

See State v. Bindyke, 288 N.C. 608 , 220 S.E.2d 521, 1975 N.C. LEXIS 1033 (1975).

Variance in Indictment Held Not Fatal. —

Indictment for injury to real property which incorrectly described the lessee of the real property as its owner, did not vary fatally from the evidence at trial; the indictment was sufficient because it properly identified the lawful possessor of the damaged property. State v. Lilly, 195 N.C. App. 697, 673 S.E.2d 718, 2009 N.C. App. LEXIS 260 (2009), overruled in part, State v. Spivey, 368 N.C. 739 , 782 S.E.2d 872, 2016 N.C. LEXIS 176 (2016).

Evidence that the lessee and the lessee’s brother heard defendant outside a window just before the shooting, and that defendant was able describe what the lessee was wearing, suggesting that defendant could see the lessee was sufficient to allow the jury to infer that defendant fired the shots that entered the townhome; while defendant contended defendant could not have fired from 20 to 25 feet away and be heard just outside the window, any issues as to credibility were for the jury to decide. State v. Lilly, 195 N.C. App. 697, 673 S.E.2d 718, 2009 N.C. App. LEXIS 260 (2009), overruled in part, State v. Spivey, 368 N.C. 739 , 782 S.E.2d 872, 2016 N.C. LEXIS 176 (2016).

Instructions. —

Instruction clearly set forth that willfulness was a necessary element of injury to real property; the State had to prove that defendant had a willful state of mind when she damaged the shrubs in question, and because the trial court gave instructions in substantial conformity with those defendant argued for on appeal, her argument was overruled, as there was no plain error in declining to directly answer the jury’s question. State v. Chamberlain, 232 N.C. App. 246, 753 S.E.2d 725, 2014 N.C. App. LEXIS 117 (2014).

Evidence Held Sufficient. —

Conviction for willful damage to real property under this section would be affirmed where the evidence was sufficient to allow the jury to infer that defendant put paper towels in museum toilet intending to create a serious water problem, as the resulting damage to the toilet (as an attached fixture, part of the real property) and water damage to the floor of the museum were natural and foreseeable consequences of clogging the constantly-running toilet. State v. Davis, 86 N.C. App. 25, 356 S.E.2d 607, 1987 N.C. App. LEXIS 2667 (1987).

There was sufficient evidence to support juvenile delinquency adjudication based on violation of statute prohibiting injury to real property. In re Pineault, 152 N.C. App. 196, 566 S.E.2d 854, 2002 N.C. App. LEXIS 896 (2002).

Trial court did not err by denying defendant’s motion to dismiss the injury to real property charge because the mobile home’s air conditioner was real property, given the manner in which it was attached to the mobile home, the fact that it was “gutted” instead of removed entirely, and it was attached by the property owner to the rental property for the use and enjoyment of the renters. State v. Hardy, 242 N.C. App. 146, 774 S.E.2d 410, 2015 N.C. App. LEXIS 576 (2015).

Sufficient substantial evidence showed defendant personally committed felonious breaking and entering, larceny, and misdemeanor injury to real property because (1) witnesses saw defendant drive a car to the victim’s apartment, (2) defendant had no permission to be there, (3) a witness saw a television in the car’s trunk, (4) televisions were stolen from the apartment, and, (5) when spoken to, defendant acted startled, slammed the trunk, and drove away. State v. Webb, 258 N.C. App. 361, 812 S.E.2d 182, 2018 N.C. App. LEXIS 227 (2018).

§ 14-127.1. Graffiti vandalism.

  1. As used in this section, “graffiti vandalism” means to unlawfully write or scribble on, mark, paint, deface, or besmear the walls of (i) any real property, whether public or private, including cemetery tombstones and monuments, (ii) any public building or facility as defined in G.S. 14-132 , or (iii) any statue or monument situated in any public place, by any type of pen, paint, or marker regardless of whether the pen or marker contains permanent ink, paint, or spray paint.
  2. Except as otherwise provided in this section, any person who engages in graffiti vandalism is guilty of a Class 1 misdemeanor. A person convicted of a Class 1 misdemeanor under this subsection shall be fined a minimum of five hundred dollars ($500.00) and, if community or intermediate punishment is imposed, shall be required to perform 24 hours of community service.
  3. Any person who violates subsection (a) of this section shall be guilty of a Class H felony if all of the following apply:
    1. The person has two or more prior convictions for violation of this section.
    2. The current violation was committed after the second conviction for violation of this section.
    3. The violation resulting in the second conviction was committed after the first conviction for violation of this section.

History. 2015-72, s. 1.

Legal Periodicals.

For article, “North Carolina’s Heritage Protection Act: Cementing Confederate Monuments in North Carolina’s Landscape,” see 94 N.C.L. Rev. 2176 (2016).

CASE NOTES

No Notice to Defense Against Graffiti Vandalism Charge. —

Since the clear intent of the drafter of the petition was to charge defendant juvenile with a violation of G.S. 14-277.5 , and since “graffiti vandalism” was not a lesser-included offense of that Class H felony, defendant was not on notice that he needed to defend against a “graffiti vandalism” charge; thus, it would not be appropriate to remand and allow the trial court to enter a disposition based on a finding of “graffiti vandalism,” based on the language of the petition. In re D.W.L.B., 267 N.C. App. 392, 832 S.E.2d 565, 2019 N.C. App. LEXIS 764 (2019).

§ 14-128. Injury to trees, crops, lands, etc., of another.

Any person, not being on his own lands, who shall without the consent of the owner thereof, willfully commit any damage, injury, or spoliation to or upon any tree, wood, underwood, timber, garden, crops, vegetables, plants, lands, springs, or any other matter or thing growing or being thereon, or who cuts, breaks, injures, or removes any tree, plant, or flower, shall be guilty of a Class 1 misdemeanor: Provided, however, that this section shall not apply to the officers, agents, and employees of the Department of Transportation while in the discharge of their duties within the right-of-way or easement of the Department of Transportation.

History. Ex. Sess. 1924, c. 54; 1957, c. 65, s. 11; c. 754; 1965, c. 300, s. 1; 1969, c. 22, s. 1; 1973, c. 507, s. 5; 1977, c. 464, s. 34; 1993, c. 539, s. 68; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to double damages for injury to agricultural commodities or production systems, see G.S. 1-539.2 B.

Legal Periodicals.

For discussion of legislative intent in enacting this section, see 3 N.C.L. Rev. 25 (1925).

§ 14-128.1. [Repealed]

Repealed by Session Laws 1979, c. 964, s. 2.

§ 14-129. Taking, etc., of certain wild plants from land of another.

No person, firm or corporation shall dig up, pull up or take from the land of another or from any public domain, the whole or any part of any trailing arbutus, Aaron’s Rod (Thermopsis caroliniana), Bird-foot Violet (Viola pedata), Bloodroot (Sanguinaria canadensis), Blue Dogbane (Amsonia tabernaemontana), Cardinal-flower (Lobelia cardinalis), Columbine (Aquilegia canadensis), Dutchman’s Breeches (Dicentra cucullaria), Maidenhair Fern (Adiantum pedatum), Walking Fern (Camptosorus rhizophyllus), Gentians (Gentiana), Ground Cedar, Running Cedar, Hepatica (Hepatica americana and acutiloba), Jack-in-the-Pulpit (Arisaema triphyllum), Lily (Lilium), Lupine (Lupinus), Monkshood (Aconitum uncinatum and reclinatum), May Apple (Podophyllum peltatum), Orchids (all species), Pitcher Plant (Sarracenia), Shooting Star (Dodecatheon meadia), Oconee Bells (Shortia galacifolia), Solomon’s Seal (Polygonatum), Trailing Christmas (Greens-Lycopodium), Trillium (Trillium), Virginia Bluebells (Mertensia virginica), and Fringe Tree (Chionanthus virginicus), American holly, white pine, red cedar, hemlock or other coniferous trees, or any flowering dogwood, any mountain laurel, any rhododendron, or any ground pine, or any Christmas greens, or any Judas tree, or any leucothea, or any azalea, without having in his possession a permit to dig up, pull up or take such plants, signed by the owner of such land, or by his duly authorized agent. Any person convicted of violating the provisions of this section shall be guilty of a Class 3 misdemeanor only punished by a fine of not less than seventy-five dollars ($75.00) nor more than one hundred seventy-five dollars ($175.00) for each offense, with each plant taken in violation of this section constituting a separate offense. The Clerk of Court for the jurisdiction in which a conviction occurs under this section involving any species listed in this section that also appears on the North Carolina Protected Plants list created under the authority granted by Article 19B of Chapter 106 of the General Statutes shall report the conviction to the Plant Conservation Board so the Board may consider a civil penalty under the authority of that Article.

History. 1941, c. 253; 1951, c. 367, s. 1; 1955, cc. 251, 962; 1961, c. 1021; 1967, c. 355; 1971, c. 951; 1993, c. 539, s. 69; c. 553, s. 9; 1994, Ex. Sess., c. 24, s. 14(c); 2001-93, s. 1; 2001-487, s. 43(a); 2014-120, s. 52(b).

Local Modification.

Avery, Mitchell and Watauga: 1967, c. 355.

Cross References.

For provision making it unlawful to take sea oats without consent from the land of another or the public domain, see G.S. 14-129.2 .

Effect of Amendments.

Session Laws 2014-120, s. 52(b), effective December 1, 2014, deleted “Venus flytrap (Dionaea muscipula),” preceding “trailing arbutus” near the beginning; substituted “seventy-five dollars ($75.00) nor more than one hundred seventy-five dollars ($175.00) for each offense, with each plant taken in violation of this section constituting a separate offense.” for “not less than ten dollars ($10.00) nor more than fifty dollars ($50.00) for each offense. The provisions of this section shall not apply to the Counties of Cabarrus, Carteret, Catawba, Cherokee, Chowan, Cumberland, Currituck, Dare, Duplin, Edgecombe, Franklin, Gaston, Granville, Hertford, McDowell, Pamlico, Pender, Person, Richmond, Rockingham, Rowan and Swain.”; and added the last sentence. See Editor’s note for applicability.

§ 14-129.1. [Repealed]

Repealed by Session Laws 1979, c. 964, s. 2.

§ 14-129.2. Unlawful to take sea oats.

  1. It is unlawful to dig up, pull up, or take from the land of another or from any public domain the whole or any part of any Sea Oats (Uniola paniculata) without the consent of the owner of that land.
  2. Any person convicted of violating the provisions of this section shall be guilty of a Class 3 misdemeanor and shall be punished by a fine of not less than twenty-five dollars ($25.00) nor more than two hundred dollars ($200.00) for each offense.

History. 2001-93, s. 2.

§ 14-129.3. Felony taking of Venus flytrap.

  1. Any person, firm, or corporation who digs up, pulls up, takes, or carries away, or aids in taking or carrying away, any Venus flytrap (Dionaea muscipula) plant or the seed of any Venus flytrap plant growing upon the lands of another person, or from the public domain, with the intent to steal the Venus flytrap plant or seed is guilty of a Class H felony.
  2. This section shall not apply to any person, firm, or corporation that has a permit to dig up, pull up, take, or carry away the plant or seed, signed by the owner of the land, or the owner’s duly authorized agent. At the time of the digging, pulling, taking, or carrying away, the permit shall be in the possession of the person, firm, or corporation on the land.

History. 2014-120, s. 52(a).

§ 14-130. Trespass on public lands.

If any person shall erect a building on any state-owned lands, or cultivate or remove timber from any such lands, without the permission of the State, he shall be guilty of a Class 1 misdemeanor. Moreover, the State can recover from any person cutting timber on its land three times the value of the timber which is cut.

History. 1823, c. 1190, P.R; 1842, c. 36, s. 4; R.C., c. 34, s. 42; Code, s. 1121; Rev., s. 3746; 1909, c. 891; C.S., s. 4302; 1979, c. 15; 1993, c. 539, s. 70; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-131. Trespass on land under option by the federal government.

On lands under option which have formally or informally been offered to and accepted by either the North Carolina Department of Natural and Cultural Resources or the Department of Environmental Quality by the acquiring federal agency and tentatively accepted by a Department for administration as State forests, State parks, State game refuges or for other public purposes, it shall be unlawful to cut, dig, break, injure or remove any timber, lumber, firewood, trees, shrubs or other plants; or any fence, house, barn or other structure; or to pursue, trap, hunt or kill any bird or other wild animals or take fish from streams or lakes within the boundaries of such areas without the written consent of the local official of the United States having charge of the acquisition of such lands.

Any person, firm or corporation convicted of the violation of this section shall be guilty of a Class 3 misdemeanor.

The Department of Environmental Quality through its legally appointed forestry, fish and game wardens is hereby authorized and empowered to assist the county law-enforcement officers in the enforcement of this section.

History. 1935, c. 317; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 218(2); 1993, c. 539, s. 71; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.119(a); 2015-241, s. 14.30(bb).

Effect of Amendments.

Session Laws 2015-241, s. 14.30(bb), effective July 1, 2015, in the first paragraph, substituted “either the North Carolina Department of Natural and Cultural Resources or the Department of Environmental Quality” for “the North Carolina Department of Environment and Natural Resources” and substituted “a Department” for “said Department”; and in the last paragraph, “The Department of Environmental Quality” was substituted for “The Department of Environment and Natural Resources.”

§ 14-132. Disorderly conduct in and injuries to public buildings and facilities.

  1. It is a misdemeanor if any person shall:
    1. Make any rude or riotous noise, or be guilty of any disorderly conduct, in or near any public building or facility; or
    2. Unlawfully write or scribble on, mark, deface, besmear, or injure the walls of any public building or facility, or any statue or monument situated in any public place; or
    3. Commit any nuisance in or near any public building or facility.
  2. Any person in charge of any public building or facility owned or controlled by the State, any subdivision of the State, or any other public agency shall have authority to arrest summarily and without warrant for a violation of this section.
  3. The term “public building or facility” as used in this section includes any building or facility which is:
    1. One to which the public or a portion of the public has access and is owned or controlled by the State, any subdivision of the State, any other public agency, or any private institution or agency of a charitable, educational, or eleemosynary nature; or
    2. Dedicated to the use of the general public for a purpose which is primarily concerned with public recreation, cultural activities, and other events of a public nature or character.
    3. Designated by the Director of the State Bureau of Investigation in accordance with G.S. 143B-987 . The term “building or facility” as used in this section also includes the surrounding grounds and premises of any building or facility used in connection with the operation or functioning of such building or facility.
  4. Unless the conduct is covered under some other provision of law providing greater punishment, any person who violates any provision of this section is guilty of a Class 2 misdemeanor.

History. 1829, c. 29, ss. 1, 2; 1842, c. 47; R.C., c. 103, ss. 7, 8; Code, s. 2308; Rev., s. 3742; 1915, c. 269; C.S., s. 4303; 1969, c. 869, s. 71/2; c. 1224, s. 2; 1981, c. 499, s. 2; 1993, c. 539, s. 72; 1994, Ex. Sess., c. 24, s. 14(c); 2014-100, s. 17.1(w); 2015-72, s. 2.

Cross References.

As to regulations promulgated by the Secretary of Human Resources concerning the suppression of nuisances and disorder at State-owned institutions, see G.S. 143-116.6 .

Effect of Amendments.

Session Laws 2014-100, s. 17.1(w), effective July 1, 2014, in subdivision (c)(3), substituted “Director of the State Bureau of Investigation” for “Attorney General” and substituted “G.S. 143B-987” for “G.S. 114-20.1” at the end.

Session Laws 2015-72, s. 2, effective December 1, 2015, added “Unless the conduct is covered under some other provision of law providing greater punishment,” to the beginning of subsection (d). For applicability, see editor’s note.

CASE NOTES

Indictment Held Insufficient. —

Trial court lacked jurisdiction where the warrant charging defendant with misdemeanor disorderly conduct in a public building alleged that he caused disruption by causing a disturbance, but did not allege specific acts, and nothing suggested that defendant made or used any utterance, gesture, display, or abusive language that was intended and plainly likely to provoke violent retaliation. State v. Combs, 261 N.C. App. 774, 818 S.E.2d 642, 2018 N.C. App. LEXIS 975 (2018).

§ 14-132.1. [Repealed]

Repealed by Session Laws 1987, c. 700, s. 2.

Cross References.

As to the offenses of first degree trespass and second degree trespass, see now G.S. 14-159.12 and 14-159.13.

§ 14-132.2. Willfully trespassing upon, damaging, or impeding the progress of a public school bus.

  1. Any person who shall unlawfully and willfully demolish, destroy, deface, injure, burn or damage any public school bus or public school activity bus shall be guilty of a Class 1 misdemeanor.
  2. Any person who shall enter a public school bus or public school activity bus after being forbidden to do so by the authorized school bus driver in charge thereof, or the school principal to whom the public school bus or public school activity bus is assigned, shall be guilty of a Class 1 misdemeanor.
  3. Any occupant of a public school bus or public school activity bus who shall refuse to leave said bus upon demand of the authorized driver in charge thereof, or upon demand of the principal of the school to which said bus is assigned, shall be guilty of a Class 1 misdemeanor.

    (c1) Any person who shall unlawfully and willfully stop, impede, delay, or detain any public school bus or public school activity bus being operated for public school purposes shall be guilty of a Class 1 misdemeanor.

  4. Subsections (b) and (c) of this section shall not apply to a child less than 12 years of age, or authorized professional school personnel.

History. 1975, c. 191, s. 1; 1993, c. 539, s. 73; 1994, Ex. Sess., c. 24, s. 14(c); 2001-26, s. 1.

§ 14-133. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(2).

§ 14-134. [Repealed]

Repealed by Session Laws 1987, c. 700, s. 2.

Cross References.

As to the offenses of first degree trespass and second degree trespass, see now G.S. 14-159.12 and 14-159.13.

§ 14-134.1. [Repealed]

Repealed by Session Laws 1977, c. 887, s. 2.

Cross References.

For present provisions as to littering, see G.S. 14-399 .

§ 14-134.2. Operating motor vehicle upon utility easements after being forbidden to do so.

If any person, without permission, shall ride, drive or operate a minibike, motorbike, motorcycle, jeep, dune buggy, automobile, truck or any other motor vehicle, other than a motorized all-terrain vehicle as defined in G.S. 14-159.3 , upon a utility easement upon which the owner or holder of the easement or agent of the owner or holder of the easement has posted on the easement a “no trespassing” sign or has otherwise given oral or written notice to the person not to so ride, drive or operate such a vehicle upon the said easement, he shall be guilty of a Class 3 misdemeanor, provided, however, neither the owner of the property nor the holder of the easement or their agents, employees, guests, invitees or permittees shall be guilty of a violation under this section.

History. 1975, c. 636, s. 1; 1993, c. 539, s. 75; 1994, Ex. Sess., c. 24, s. 14(c); 1997-487, s. 2; 2015-26, s. 2.1.

Effect of Amendments.

Session Laws 2015-26, s. 2.1, effective May 21, 2015, substituted “motorized all-terrain vehicle” for “motorized all terrain vehicle” near the beginning.

§ 14-134.3. Domestic criminal trespass.

  1. Any person who enters after being forbidden to do so or remains after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse or by a person with whom the person charged has lived as if married, shall be guilty of a misdemeanor if the complainant and the person charged are living apart; provided, however, that no person shall be guilty if said person enters upon the premises pursuant to a judicial order or written separation agreement which gives the person the right to enter upon said premises for the purpose of visiting with minor children. Evidence that the parties are living apart shall include but is not necessarily limited to:
    1. A judicial order of separation;
    2. A court order directing the person charged to stay away from the premises occupied by the complainant;
    3. An agreement, whether verbal or written, between the complainant and the person charged that they shall live separate and apart, and such parties are in fact living separate and apart; or
    4. Separate places of residence for the complainant and the person charged.

      Except as provided in subsection (b) of this section, upon conviction, said person is guilty of a Class 1 misdemeanor.

  2. A person convicted of a violation of this section is guilty of a Class G felony if the person is trespassing upon property operated as a safe house or haven for victims of domestic violence and the person is armed with a deadly weapon at the time of the offense.

History. 1979, c. 561, s. 2; 1993, c. 539, s. 76; 1994, Ex. Sess., c. 24, s. 14(c); 1998-212, s. 17.19(a).

Legal Periodicals.

For survey of 1979 family law, see 58 N.C.L. Rev. 1471 (1980).

CASE NOTES

Physical Presence Not Required. —

With regard to the crime of domestic criminal trespass, the infliction of mental distress upon a victim resulting from a defendant’s unauthorized entry into her home is a harm that can occur regardless of whether the victim is physically present at the time of the trespass. State v. Vetter, 257 N.C. App. 915, 810 S.E.2d 759, 2018 N.C. App. LEXIS 138 (2018).

Prior Contempt Adjudication and Double Jeopardy. —

Defendant’s convictions for kidnapping, non-felonious breaking or entering, and domestic criminal trespass did not violate the Double Jeopardy Clause where several elements contained within the applicable statutory language were not set out in the protective order that defendant had previously been held in contempt for violating. State v. Gilley, 135 N.C. App. 519, 522 S.E.2d 111, 1999 N.C. App. LEXIS 1177 (1999), cert. denied, 353 N.C. 528 , 549 S.E.2d 860, 2001 N.C. LEXIS 602 (2001).

Defendant wife’s previous “conviction” in a criminal contempt proceeding barred her subsequent prosecution for domestic criminal trespass under this section; the phrase “shall not come to the residence” contained in the civil consent order was equivalent to the domestic criminal trespass element of “entering . . . upon the premises,” for purposes of double jeopardy. State v. Dye, 139 N.C. App. 148, 532 S.E.2d 574, 2000 N.C. App. LEXIS 797 (2000).

Evidence Held Sufficient. —

Defendant’s motion to dismiss the domestic criminal trespass charge was properly denied because the victim ended her relationship with defendant in April 2015 and ordered him to leave her residence; she reaffirmed through her actions on June 11, 2015, that defendant was not allowed to go inside the house by locking the door and activating her alarm system upon discovering defendant in her driveway; the fact that defendant initially entered a portion of the premises with the victim’s consent — the garage — did not render him incapable of later trespassing upon a separate part of the premises where his presence was forbidden — inside the home; and the victim did not need to be physically present at the time of the trespass. State v. Vetter, 257 N.C. App. 915, 810 S.E.2d 759, 2018 N.C. App. LEXIS 138 (2018).

§ 14-135. (Effective until December 1, 2021) Cutting, injuring, or removing another’s timber.

If any person not being the bona fide owner thereof, shall knowingly and willfully cut down, injure or remove any standing, growing or fallen tree or log off the property of another, the person shall be punished the same as in G.S. 14-72 .

History. 1889, c. 168; Rev., s. 3687; C.S., s. 4306; 1957, c. 1437, s. 1; 1993, c. 539, s. 77; 1994, Ex. Sess., c. 24, s. 14(c); 2009-508, s. 1.

Local Modification.

Burke, Caldwell, Cherokee: C.S. 4307, 4308; Duplin: 1929, c. 174; Granville: 1965, c. 570; McDowell, Mitchell, Watauga, Wilkes, Yadkin: C.S. 4307, 4308.

Editor’s Note.

This section, as amended by Session Laws 2009-508, s. 1, contained a subsection (a) but no subsection (b). The subsection (a) designation has been deleted at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2009-508, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, substituted “or log off the property of another, the person shall be punished the same as in G.S. 14-72 ” for “or log, the property of another, he shall be guilty of a Class 1 misdemeanor” at the end.

CASE NOTES

Prosecutor’s Ownership of Land Essential. —

The crime of unlawfully cutting, injuring or removing another’s timber as defined by this section is an offense against the freehold rather than the possession, and ownership of the property by the prosecutor is a sine qua non to conviction. State v. Baker, 231 N.C. 136 , 56 S.E.2d 424, 1949 N.C. LEXIS 501 (1949).

§ 14-135. Larceny of timber.

  1. Offense. —  Except as otherwise provided in subsection (b) of this section, a person commits the offense of larceny of timber if the person does any of the following:
    1. Knowingly and willfully cuts down, injures, or removes any timber owned by another person, without the consent of the owner of the land or the owner of the timber, or without a lawful easement running with the land.
    2. Buys timber directly from the owner of the timber and fails to make payment in full to the owner by (i) the date specified in the written timber sales agreement or (ii) if there is no such agreement, 60 days from the date that the buyer removes the timber from the property.
  2. Exceptions. —  The following are exceptions to the offense set forth in subsection (a) of this section:
    1. A person is not guilty of an offense under subdivision (1) of subsection (a) of this section if the person is an employee or agent of an electric power supplier, as defined in G.S. 62-133.8 , and either of the following conditions is met:
      1. The person believed in good faith that consent of the owner had been obtained prior to cutting down, injuring, or removing the timber.
      2. The person believed in good faith that the cutting down, injuring, or removing of the timber was permitted by a utility easement or was necessary to remove a tree hazard. For purposes of this sub-subdivision, the term “tree hazard” includes a dead or dying tree, dead parts of a living tree, or an unstable living tree that is within striking distance of an electric transmission line, electric distribution line, or electric equipment and constitutes a hazard to the line or equipment in the event of a tree failure.
    2. A person is not guilty of an offense under subdivision (2) of subsection (a) of this section if either of the following conditions is met:
      1. The person remitted payment in full within the time period set in subdivision (2) of subsection (a) of this section to a person he or she believed in good faith to be the rightful owner of the timber.
      2. The person remitted payment in full to the owner of the timber within the 10-day period set forth in subsection (c) of this section.
  3. Prima Facie Evidence. —  An owner of timber who does not receive payment in full within the time period set in subdivision (2) of subsection (a) of this section may notify the timber buyer in writing of the owner’s demand for payment at the timber buyer’s last known address by certified mail or by personal delivery. The timber buyer’s failure to make payment in full within 10 days after the mailing or personal delivery authorized under this subsection shall constitute prima facie evidence of the timber buyer’s intent to commit an offense under subdivision (2) of subsection (a) of this section.
  4. Penalty; Restitution. —  A person who commits an offense under subsection (a) of this section is guilty of a Class G felony. Additionally, a defendant convicted of an offense under subsection (a) of this section shall be ordered to make restitution to the timber owner in an amount equal to either of the following:
    1. Three times the value of the timber cut down, injured, or removed in violation of subdivision (1) of subsection (a) of this section.
    2. Three times the value of the timber bought but not paid for in violation of subdivision (2) of subsection (a) of this section.Restitution shall also include the cost incurred by the owner to determine the value of the timber. For purposes of subdivisions (1) and (2) of this subsection, “value of the timber” shall be based on the stumpage rate of the timber.
  5. Civil Remedies. —  Nothing in this section shall affect any civil remedies available for a violation of subsection (a) of this section.

History. 1889, c. 168; Rev., s. 3687; C.S., s. 4306; 1957, c. 1437, s. 1; 1993, c. 539, s. 77; 1994, Ex. Sess., c. 24, s. 14(c); 2009-508, s. 1; 2021-78, s. 5(a).

Local Modification.

Burke, Caldwell, Cherokee: C.S. 4307, 4308; Duplin: 1929, c. 174; Granville: 1965, c. 570; McDowell, Mitchell, Watauga, Wilkes, Yadkin: C.S. 4307, 4308.

Editor’s Note.

This section, as amended by Session Laws 2009-508, s. 1, contained a subsection (a) but no subsection (b). The subsection (a) designation has been deleted at the direction of the Revisor of Statutes.

Session Laws 2021-78, s. 5(d), made the rewriting of this section by Session Laws 2021-78, s. 5(a), effective December 1, 2021, and applicable to offenses committed on or after that date.

Session Laws 2021-78, s. 14(a), is a severability clause.

Effect of Amendments.

Session Laws 2009-508, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, substituted “or log off the property of another, the person shall be punished the same as in G.S. 14-72 ” for “or log, the property of another, he shall be guilty of a Class 1 misdemeanor” at the end.

Session Laws 2021-78, s. 5(a), rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Prosecutor’s Ownership of Land Essential. —

The crime of unlawfully cutting, injuring or removing another’s timber as defined by this section is an offense against the freehold rather than the possession, and ownership of the property by the prosecutor is a sine qua non to conviction. State v. Baker, 231 N.C. 136 , 56 S.E.2d 424, 1949 N.C. LEXIS 501 (1949).

§ 14-135.1. Wood load tickets required for certain wood product sales; exceptions; penalties.

  1. Definition. —  For purposes of this section, the term “wood product” means trees, timber, wood, or any combination thereof.
  2. Requirement. —  Except as provided in this section, whenever a timber buyer or timber operator purchases wood product by the load directly from a timber grower or seller and the load is sold by weight, cord, or measure of board feet, the timber buyer or operator shall furnish the timber grower or seller, within 30 days of the completion of the wood product harvest, a separate, true, and accurate wood load ticket for each load of wood product removed from the timber grower’s or seller’s property. At a minimum, each wood load ticket shall include all of the following information provided by the timber grower or seller who sold the wood product:
    1. The name of the timber grower or seller.
    2. The county from which the wood product was severed.
    3. The amount of wood product severed.
    4. The date the wood product was delivered to the timber buyer or timber operator.
  3. Applicability. —  The provisions of this section do not apply to the following:
    1. The sale of wood for firewood only.
    2. A landowner harvesting and processing their own timber.
    3. Bulk or lump sum sales for an agreed total price for all timber purchased and sold in one transaction.
  4. Punishment. —  Any person who violates this section is guilty of a Class 2 misdemeanor.

History. 2021-78, s. 6(a).

Editor’s Note.

Session Laws 2021-78, s. 6(b), made this section, as added by Session Laws 2021-78, s. 6(a), effective December 1, 2021, and applicable to offenses committed on or after that date.

Session Laws 2021-78, s. 14(a), is a severability clause.

§ 14-136. Setting fire to grass and brushlands and woodlands.

If any person shall intentionally set fire to any grassland, brushland or woodland, except it be his own property, or in that case without first giving notice to all persons owning or in charge of lands adjoining the land intended to be fired, and without also taking care to watch such fire while burning and to extinguish it before it shall reach any lands near to or adjoining the lands so fired, he shall for every such offense be guilty of a Class 2 misdemeanor for the first offense, and for a second or any subsequent similar offense shall be guilty of a Class 1 misdemeanor. If intent to damage the property of another shall be shown, said person shall be punished as a Class I felon. This section shall not prevent an action for the damages sustained by the owner of any property from such fires. For the purposes of this section, the term “woodland” is to be taken to include all forest areas, both timber and cutover land, and all second-growth stands on areas that have at one time been cultivated. Any person who shall furnish to the State, evidence sufficient for the conviction of a violation of this section shall receive the sum of five hundred dollars ($500.00) to be paid from the State Fire Suppression Fund.

History. 1777, c. 123, ss. 1, 2, P.R; R.C., c. 16, ss. 1, 2; Code, ss. 52, 53; Rev., s. 3346; 1915, c. 243, ss. 8, 11; 1919, c. 318; C.S., s. 4309; 1925, c. 61, s. 1; 1943, c. 661; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 78, 1188; c. 892; 1994, Ex. Sess., c. 24, s. 14(c).

Local Modification.

Graham: Pub. Loc. 1933, c. 301; Onslow: 1929, c. 185; 1939, c. 160.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

The primary purpose of this section is to protect property from fire damage. But the enactment is broad enough to include setting fire to a grass-covered field. Benton v. Montague, 253 N.C. 695 , 117 S.E.2d 771, 1961 N.C. LEXIS 445 (1961).

The primary purpose of this section is to protect property. Pickard v. Burlington Belt Corp., 2 N.C. App. 97, 162 S.E.2d 601, 1968 N.C. App. LEXIS 878 (1968).

This section defines the standard of care imposed upon a person who undertakes to burn brush, grass, etc., and a violation of its provisions constitutes negligence. Pickard v. Burlington Belt Corp., 2 N.C. App. 97, 162 S.E.2d 601, 1968 N.C. App. LEXIS 878 (1968).

Care No Defense Where Notice Not Given. —

If one firing woods fails to give the statutory notice to adjoining owners and damages ensue, the cause of action is complete, no matter what degree of care may have been shown. Lamb v. Sloan, 94 N.C. 534 , 1886 N.C. LEXIS 98 (1886); Benton v. Montague, 253 N.C. 695 , 117 S.E.2d 771, 1961 N.C. LEXIS 445 (1961).

Waiver of Notice Bars Damages. —

A waiver of notice is a sufficient answer to an action for damages caused to woodland by fire. Roberson v. Kirby, 52 N.C. 477 , 1860 N.C. LEXIS 85 (1860); Lamb v. Sloan, 94 N.C. 534 , 1886 N.C. LEXIS 98 (1886).

Waiver when made by a tenant in common while in possession is also a sufficient defense. See Stanland v. Rourk, 168 N.C. 568 , 84 S.E. 845, 1915 N.C. LEXIS 110 (1915).

Waiver by Adjoining Owner No Bar to Penalty. —

When an adjoining owner waives notice of the intended fire such waiver does not waive the penalty of this section, but is only a waiver of the landowner’s right of action for damages to his land caused by the spreading of the fire. Lamb v. Sloan, 94 N.C. 534 , 1886 N.C. LEXIS 98 (1886).

Liability to One Not an Adjoining Owner. —

The notice required by this section applies only to adjoining owners and one is not subject to the penalty for failure to give notice to one who is not an adjoining owner, but by the express terms of the statute there is a liability in damages for damages to “any property.” See Roberson v. Morgan, 118 N.C. 991 , 24 S.E. 667, 1896 N.C. LEXIS 169 (1896).

No Evidence to Show Fire Started by Defendant. —

Where the evidence tended only to show that the fire started on defendant’s land and spread to the plaintiff’s land, but that the defendant had ordered his employees not to set out a fire on account of the dry conditions, and there was neither direct nor circumstantial evidence tending to show the fire had been started either by the defendant or his employees under his authority, a judgment of nonsuit was proper. Sutton v. Herrin, 202 N.C. 599 , 163 S.E. 578, 1932 N.C. LEXIS 164 (1932).

Burning Off Railroad Rights-of-Way. —

In case of Mizzell v. Branning Mfg. Co., 158 N.C. 265 , 73 S.E. 802 (1912), it was held under a prior statute, similar in some respects to this except that it did not provide against burning grassland and brushland, that the statute did not apply to railroads burning off their rights-of-way that were covered with grass and tree tops.

Defendant was properly charged and convicted under former G.S. 14-138 where defendant set two fires: the first one intentionally, and the second by leaving a smoldering stump. State v. Hewitt, 126 N.C. App. 366, 484 S.E.2d 844, 1997 N.C. App. LEXIS 365 (1997).

§ 14-137. Willfully or negligently setting fire to woods and fields.

If any person, firm or corporation shall willfully or negligently set on fire, or cause to be set on fire, any woods, lands or fields, whatsoever, every such offender shall be guilty of a Class 2 misdemeanor. This section shall apply only in those counties under the protection of the Department of Agriculture and Consumer Services in its work of forest fire control. It shall not apply in the case of a landowner firing, or causing to be fired, his own open, nonwooded lands, or fields in connection with farming or building operations at the time and in the manner now provided by law: Provided, he shall have confined the fire at his own expense to said open lands or fields.

History. 1907, c. 320, ss. 4, 5; C.S., s. 4310; 1925, c. 61, s. 2; 1941, c. 258; 1973, c. 1262, s. 86; 1977, c. 771, s. 4; 1989, c. 727, s. 218(3); 1993, c. 539, s. 79; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.119(a); 2015-241, s. 14.30(u); 2015-263, s. 36(a).

Effect of Amendments.

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted “Department of Environmental Quality” for “Department of Environment and Natural Resources” in the first sentence.

Session Laws 2015-263, s. 36(a), effective September 30, 2015, substituted “Department of Agriculture and Consumer Services” for “Department of Environmental Quality” in the second sentence.

CASE NOTES

Evidence Held Sufficient. —

Evidence that the county in which defendant negligently or willfully started forest fires was in charge of the State forest service and that this section was applicable to the county, defendant having offered no evidence to the contrary, was sufficient to show a violation of the section. State v. Patton, 221 N.C. 117 , 19 S.E.2d 142, 1942 N.C. LEXIS 404 (1942).

§ 14-138. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(6).

Cross References.

For present similar provisions pertaining to setting fire to grassland, brushland, or woodland, see G.S. 14-138.1 .

§ 14-138.1. Setting fire to grassland, brushland, or woodland.

Any person, firm, corporation, or other legal entity who shall in any manner whatsoever start any fire upon any grassland, brushland, or woodland without fully extinguishing the same, shall be guilty of a Class 3 misdemeanor which may include a fine of not less than ten dollars ($10.00) or more than fifty dollars ($50.00). For the purpose of this section, the term “woodland” includes timber and cutover land and all second growth stands on areas that were once cultivated.

History. 1995, c. 210, s. 1.

§ 14-139. [Repealed]

Repealed by Session Laws 1981, c. 1100, s. 1.

Cross References.

For present statute regulating open fires, see § 106-940 et seq.

§ 14-140. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(3).

Cross References.

For present statute regulating guarding fires, see G.S. 14-140.1 .

§ 14-140.1. Certain fire to be guarded by watchman.

Any person, firm, corporation, or other legal entity who shall burn any brush, grass, or other material whereby any property may be endangered or destroyed, without keeping and maintaining a careful watchman in charge of the burning, shall be guilty of an infraction which may include a fine of not more than fifty dollars ($50.00). Fire escaping from the brush, grass, or other material while burning shall be prima facie evidence of violation of this provision.

History. 1995, c. 210, s. 2; 2015-263, s. 27.

Effect of Amendments.

Session Laws 2015-263, s. 27, effective September 30, 2015, in the first sentence, substituted “an infraction” for “a Class 3 misdemeanor,” and deleted “less than ten dollars ($10.00) or” preceding “more than fifty dollars ($50.00).”

§ 14-141. Burning or otherwise destroying crops in the field.

Any person who shall willfully burn or destroy any other person’s lawfully grown crop, pasture, or provender shall be punished as follows:

  1. If the damage is two thousand dollars ($2,000) or less, the person is guilty of a Class 1 misdemeanor.
  2. If the damage is more than two thousand dollars ($2,000), the person is guilty of a Class I felony.

History. 1874-5, c. 133; Code, s. 985, subsec. 2; 1885, c. 42; Rev., s. 3339; C.S., s. 4313; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1991, c. 534, s. 1; 1993, c. 539, s. 81; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to arson, see G.S. 14-58 et seq.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Out of Doors. —

One who burns cotton in a railroad car cannot be convicted under this section as the cotton is not out of doors. State v. Avery, 109 N.C. 798 , 13 S.E. 931, 1891 N.C. LEXIS 313 (1891) (decided prior to 1991 amendment) .

Indictment. —

An indictment should charge a statutory crime in the words of the statute. Therefore an indictment charging setting fire to a lot of fodder, without charging the burning, is defective. State v. Hall, 93 N.C. 571 , 1885 N.C. LEXIS 121 (1885) (decided prior to 1991 amendment) .

It is not necessary under this section to aver in the indictment that the stack burned was “out of doors.” State v. Huskins, 126 N.C. 1070 , 35 S.E. 608, 1900 N.C. LEXIS 363 (1900) (decided prior to 1991 amendment) .

§ 14-142. Injuries to dams and water channels of mills and factories.

If any person shall cut away, destroy or otherwise injure any dam, or part thereof, or shall obstruct or damage any race, canal or other water channel erected, opened, used or constructed for the purpose of furnishing water for the operation of any mill, factory or machine works, or for the escape of water therefrom, he shall be guilty of a Class 2 misdemeanor.

History. 1866, c. 48; Code, s. 1087; Rev., s. 3678; C.S., s. 4315; 1969, c. 1224, s. 13; 1993, c. 539, s. 82; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Obstruction Below Dam or Channel. —

This section only applies to obstructions and damages to the dam or channel, and an indictment cannot be had for obstructions below the dam or channel. State v. Tomlinson, 77 N.C. 528 , 1877 N.C. LEXIS 144 (1877).

§ 14-143. [Repealed]

Repealed by Session Laws 1987, c. 700, s. 2.

Cross References.

As to the offenses of first-degree trespass and second-degree trespass, see now G.S. 14-159.12 and 14-159.13.

§ 14-144. Injuring houses, churches, fences and walls.

If any person shall, by any other means than burning or attempting to burn, unlawfully and willfully demolish, destroy, deface, injure or damage any of the houses or other buildings mentioned in Article 15 (Arson and Other Burnings) of this Chapter; or shall by any other means than burning or attempting to burn unlawfully and willfully demolish, pull down, destroy, deface, damage or injure any church, uninhabited house, outhouse or other house or building not mentioned in such article; or shall unlawfully and willfully burn, destroy, pull down, injure or remove any fence, wall or other enclosure, or any part thereof, surrounding or about any yard, garden, cultivated field or pasture, or about any church or graveyard, or about any factory or other house in which machinery is used, every person so offending shall be punished as follows:

  1. If the damage is five thousand dollars ($5,000) or less, the person is guilty of a Class 2 misdemeanor.
  2. If the damage is more than five thousand dollars ($5,000), the person is guilty of a Class I felony.

History. R.C., c. 34, s. 103; Code, s. 1062; Rev., s. 3673; C.S., s. 4317; 1957, c. 250, s. 2; 1969, c. 1224, s. 1; 1993, c. 539, s. 83; 1994, Ex. Sess., c. 24, s. 14(c); 2008-15, s. 1; 2009-570, s. 3.

Cross References.

As to injuring buildings or fences, see G.S. 14-159 .

As to willful destruction by a tenant, see G.S. 42-11 .

Effect of Amendments.

Session Laws 2008-15, s. 1, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “punished as follows:” for “guilty of a Class 2 misdemeanor.” at the end of the introductory paragraph and added subdivisions (1) and (2).

Session Laws 2009-570, s. 3, effective August 28, 2009, in the introductory paragraph, substituted “Article 15 (Arson and Other Burnings) of this Chapter” for “this Chapter in the Article entitled Arson and Other Burnings” and substituted “uninhabited house” for “uninhabitated house” and “or other enclosure” for “or other inclosure.”

CASE NOTES

Analysis

I.General Consideration

Trespass Is a Necessary Part of This Offense. —

It was held that to constitute a criminal offense under this section, there must be a trespass. State v. Williams, 44 N.C. 197 , 1853 N.C. LEXIS 125 (1853); State v. Watson, 86 N.C. 626 , 1882 N.C. LEXIS 257 (1882); State v. McCracken, 118 N.C. 1240 , 24 S.E. 530, 1896 N.C. LEXIS 208 (1896).

And a party in lawful possession cannot commit a trespass upon the property of which he is in possession. Dobbs v. Gullidge, 20 N.C. 197 , 1838 N.C. LEXIS 88 (1838); State v. Reynolds, 95 N.C. 616 , 1886 N.C. LEXIS 316 (1886); State v. Howell, 107 N.C. 835 , 12 S.E. 569, 1890 N.C. LEXIS 155 (1890).

If defendant was shown to have been in the actual lawful possession of house at the time he tore it down, he committed no criminal offense under this section. State v. Jones, 129 N.C. 508 , 39 S.E. 795, 1901 N.C. LEXIS 107 (1901).

Tenant’s and Landlord’s Liability to One Another. —

A tenant is not subject under this section for damage done to property in his possession, but the owner of the reversion would be subject to prosecution for damage to property in the possession of a tenant, as the statute covers offenses against possession. State v. Mason, 35 N.C. 341 , 1852 N.C. LEXIS 52 (1852); State v. Whitener, 92 N.C. 798 , 1885 N.C. LEXIS 295 (1885).

A tenant cannot divest the possession of his landlord by an attempted attornment to another, and if the person to whom the attempted attornment is made enters the land and damages buildings he is liable under this section, in spite of proof of good faith and claim of title. State v. Howell, 107 N.C. 835 , 12 S.E. 569, 1890 N.C. LEXIS 155 (1890).

Same — Tenant at Sufferance. —

If a building is torn down by a landlord while it is in the possession of a tenant at sufferance, an indictment under this section cannot be supported, for this section was intended to protect property in which the tenant at sufferance has no interest in. State v. Mace, 65 N.C. 344 , 1871 N.C. LEXIS 102 (1871).

II.Houses and Other Buildings

An “uninhabited house” within the purview of this section is a house fit for human habitation, but which is uninhabited at the time. State v. Long, 243 N.C. 393 , 90 S.E.2d 739, 1956 N.C. LEXIS 355 (1956).

Where the evidence disclosed that the structure in question was not fit for human habitation at the time of the alleged offense, the evidence was insufficient to be submitted to the jury in a prosecution for burning an uninhabited house in violation of this section. State v. Long, 243 N.C. 393 , 90 S.E.2d 739, 1956 N.C. LEXIS 355 (1956).

An indictment which charged that the defendant unlawfully, willfully and feloniously set fire to and burned the dwelling house of named person, the same being unoccupied at the time of the burning, charged the burning of an “uninhabited house” in violation of this section, and not a violation of G.S. 14-67 . State v. Long, 243 N.C. 393 , 90 S.E.2d 739, 1956 N.C. LEXIS 355 (1956).

“Other Houses”. —

It is manifest that the words “other house or building” embrace a jail, a jailhouse or building. State v. Bryan, 89 N.C. 531 , 1883 N.C. LEXIS 284 (1883).

Houses Erected Through Mistake and Subsequently Removed. —

One who peaceably enters upon lands believing at the time that he has the right to do so, and erects houses thereon, but, being still in possession, tears them down and removes them upon discovering that he was upon the lands of another, is not such a trespasser as will subject him to a conviction under this section. State v. Reynolds, 95 N.C. 616 , 1886 N.C. LEXIS 316 (1886).

Schoolhouses Held by Adverse Possession. —

If defendants are in the adverse possession of a schoolhouse and are bona fide claiming it as their own, it is not a crime in them to pull it down. State v. Roseman, 66 N.C. 634 , 1872 N.C. LEXIS 147 (1872).

Dynamiting a Crib. —

An indictment will lie under this section for injury to a crib by an explosion of dynamite. State v. Martin, 173 N.C. 808 , 92 S.E. 597, 1917 N.C. LEXIS 421 (1917).

Proof of defacement by either bullets or paint would be sufficient to sustain a conviction under this section. State v. Dawson, 272 N.C. 535 , 159 S.E.2d 1, 1968 N.C. LEXIS 699 (1968).

III.Fences, etc

Fence Must Enclose Something. —

It is necessary under this section that the fence destroyed or injured surround or enclose something, and a fence along a road, erected to prevent passersby from turning into the field to avoid mud in the road, when not connected with any other fence, is not within the meaning of this section. See State v. Roberts, 101 N.C. 744 , 7 S.E. 714, 1888 N.C. LEXIS 135 (1888).

Wire Fences. —

An indictment for cutting and destroying a wire fence may be maintained under this section if it charges that the wire fence was an enclosure. State v. Biggers, 108 N.C. 760 , 12 S.E. 1024, 1891 N.C. LEXIS 137 (1891).

Cultivated Field Defined. —

Where a piece or tract of land has been cleared and fenced and cultivated, or is proposed to be cultivated, and is kept and used for cultivation according to the ordinary course of husbandry, although nothing may be growing within the enclosure at the time of the trespass, it is a “cultivated field” within the description of the statute. State v. Allen, 35 N.C. 36 , 1851 N.C. LEXIS 107 (1851); State v. McMinn, 81 N.C. 585 , 1879 N.C. LEXIS 238 (1879).

The ruling in State v. Allen, 35 N.C. 36 (1851), was cited and approved in State v. McMinn, 81 N.C. 585 (1879), in which case it was also held that the smallness of the tract made no difference; that a town lot, if inclosed and cultivated, could be described as a “field” under this statute, unless it was used as a “garden,” in which case it should be so described. State v. Campbell, 133 N.C. 640 , 45 S.E. 344, 1903 N.C. LEXIS 107 (1903).

“Cultivated Field” and “Pasture” Are Not Synonymous. —

Where in a criminal prosecution for the violation of this section, the indictment charges the defendant with having removed a fence surrounding a cultivated field, and the evidence is that the fence surrounded a pasture, the word “pasture” and “cultivated field” are not synonymous and are distinguished in the statute by a disjunctive, and an instruction which charges that a pasture is a cultivated field within the meaning of the statute is erroneous. State v. Cornett, 199 N.C. 634 , 155 S.E. 451, 1930 N.C. LEXIS 201 (1930).

Agency No Defense. —

Under an indictment for tearing down a fence, the defendant cannot avoid liability by showing that he acted as agent for another. State v. Campbell, 133 N.C. 640 , 45 S.E. 344, 1903 N.C. LEXIS 107 (1903).

Title to Land No Defense. —

It is well settled that where the State, in an indictment under this section, for unlawfully and willfully removing a fence, shows actual possession in the prosecutor, the defendant cannot excuse himself by showing title to the land upon which the fence was situated. State v. Graham, 53 N.C. 397 , 1861 N.C. LEXIS 50 (1861); State v. Hovis, 76 N.C. 117 , 1877 N.C. LEXIS 177 (1877); State v. Marsh, 91 N.C. 632 , 1884 N.C. LEXIS 130 (1884); State v. Howell, 107 N.C. 835 , 12 S.E. 569, 1890 N.C. LEXIS 155 (1890); State v. Fender, 125 N.C. 649 , 34 S.E. 448, 1899 N.C. LEXIS 279 (1899); State v. Campbell, 133 N.C. 640 , 45 S.E. 344, 1903 N.C. LEXIS 107 (1903); State v. Taylor, 172 N.C. 892 , 90 S.E. 294, 1916 N.C. LEXIS 440 (1916).

Question of Title Cannot Be Raised. —

Where a party has neither possession, nor a right of possession to land, he cannot, upon an indictment for unlawfully removing a fence therefrom, raise a question as to a right of entry, nor is it any defense to him that he did the act to bring on a civil suit in order to try the title. State v. Graham, 53 N.C. 397 , 1861 N.C. LEXIS 50 (1861).

Destroying Fence When Line Is in Dispute. —

Although a defendant cannot plead his title as a defense to an indictment for destroying fences, etc., on the land in possession of another, he can plead his title if the land is not in the possession of the prosecutor. In case of a disputed line, if the prosecutor erects a fence on land in possession of the defendant, the defendant is not liable under this section for pulling it down. State v. Watson, 86 N.C. 626 (1882); State v. Fender, 125 N.C. 649 , 34 S.E. 448 (1899). Nor is a quasi-tenant occupying by the consent of the owner subject to prosecution under this section for the removal of a fence. State v. Williams, 44 N.C. 197 , 1853 N.C. LEXIS 125 (1853).

Fence Made from Rails Taken from Another. —

Although rails of which a fence around an enclosure was made were taken from the land of another, no right to go on the land and remove the fence exists in favor of the person from whom the rails were taken, as the fence is a part of the realty, and such a trespass comes within the meaning of this section. State v. McMinn, 81 N.C. 585 , 1879 N.C. LEXIS 238 (1879).

Removal by Officer of Fence Erected Across a Street. —

A fence erected across a public street is a public nuisance, and a city marshal will not be liable for abating the nuisance by pulling it down. State v. Godwin, 145 N.C. 461 , 59 S.E. 132, 1907 N.C. LEXIS 321 (1907).

Defective Bill of Indictment. —

A motion in arrest of judgment after conviction for removal of fences on the ground that the bill of indictment is defective will not be granted, unless it appears that the bill is so defective that judgment cannot be pronounced upon it. State v. Taylor, 172 N.C. 892 , 90 S.E. 294, 1916 N.C. LEXIS 440 (1916).

§ 14-145. Unlawful posting of advertisements.

Any person who in any manner paints, prints, places, or affixes, or causes to be painted, printed, placed, or affixed, any business or commercial advertisement on or to any stone, tree, fence, stump, pole, automobile, building, or other object, which is the property of another without first obtaining the written consent of such owner thereof, or who in any manner paints, prints, places, puts, or affixes, or causes to be painted, printed, placed, or affixed, such an advertisement on or to any stone, tree, fence, stump, pole, mile-board, milestone, danger-sign, danger-signal, guide-sign, guide-post, automobile, building or other object within the limits of a public highway, shall be guilty of a Class 3 misdemeanor.

History. Ex. Sess. 1924, c. 109; 1993, c. 539, s. 84; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to injuring, defacing, or destroying notices and advertisements, see G.S. 14-384 and 14-385.

Legal Periodicals.

For comment on application of this section, see 3 N.C.L. Rev. 25 (1925).

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

§ 14-146. Injuring bridges.

If any person shall unlawfully and willfully demolish, destroy, break, tear down, injure or damage any bridge across any of the creeks or rivers or other streams in the State, he shall be guilty of a Class 1 misdemeanor.

History. 1883, c. 271; Code, s. 993; Rev., s. 3771; C.S., s. 4318; 1993, c. 539, s. 85; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-147. Removing, altering or defacing landmarks.

If any person, firm or corporation shall knowingly remove, alter or deface any landmark in anywise whatsoever, or shall knowingly cause such removal, alteration or defacement to be done, such person, firm or corporation shall be guilty of a Class 2 misdemeanor. This section shall not apply to landmarks, such as creeks and other small streams, which the interest of agriculture may require to be altered or turned from their channels, nor to such persons, firms or corporations as own the fee simple in the lands on both sides of the lines designated by the landmarks removed, altered or defaced. Nor shall this section apply to those adjoining landowners who may by agreement remove, alter or deface landmarks in which they alone are interested.

History. 1858-9, c. 17; Code, s. 1063; Rev., s. 3674; 1915, c. 248; C.S., s. 4319; 1993, c. 539, s. 86; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Removal of Stakes. —

As between the parties stakes are evidence of a definite location of land, as also is the planting of a stone, and a removal of such stakes comes within the meaning of this section. State v. Jenkins, 164 N.C. 527 , 80 S.E. 231, 1913 N.C. LEXIS 97 (1913).

Indictment. —

An indictment charging that one A. B., with force and arms, etc., willfully and unlawfully did alter, deface, and remove a corner tree, the property of C., against the form of the statute, was good without a negative averment of the matter contained in the proviso to the act creating the offense. State v. Bryant, 111 N.C. 693 , 16 S.E. 326, 1892 N.C. LEXIS 246 (1892).

§ 14-148. Defacing or desecrating grave sites.

  1. It is unlawful to willfully:
    1. Throw, place or put any refuse, garbage or trash in or on any cemetery.
    2. Take away, disturb, vandalize, destroy or change the location of any stone, brick, iron or other material or fence enclosing a cemetery without authorization of law or consent of the surviving spouse or next of kin of the deceased.
    3. Take away, disturb, vandalize, destroy, or tamper with any shrubbery, flowers, plants or other articles planted or placed within any cemetery to designate where human remains are interred or to preserve and perpetuate the memory and name of any person, without authorization of law or the consent of the surviving spouse or next of kin.
  2. The provisions of this section shall not apply  to:
    1. Ordinary maintenance and care of a cemetery by the owner, caretaker, or other person acting to facilitate cemetery operations by keeping the cemetery free from accumulated debris or other signs of neglect.
    2. Conduct that is punishable under G.S. 14-149 .
    3. A professional archaeologist as defined in G.S. 70-28(4) acting pursuant to the provisions of Article 3 of Chapter 70 of the General Statutes.
  3. Violation of this section is a Class I felony if the damage caused by the violation is one thousand dollars ($1,000) or more. Any other violation of this section is a Class 1 misdemeanor. In passing sentence, the court shall consider the appropriateness of restitution or reparation as a condition of probation under G.S. 15A-1343(b)(9) as an alternative to actual imposition of a fine, jail term, or both.

History. 1840, c. 6; R.C., c. 34, s. 102; Code, s. 1088; Rev., s. 3680; C.S., s. 4320; 1969, c. 987; 1981, c. 752, s. 1; c. 853, s. 4; 1993, c. 539, s. 87; 1994, Ex. Sess., c. 24, s. 14(c); 2007-122, s. 1.

Effect of Amendments.

Session Laws 2007-122, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, in subsection (a), deleted “thereby causing damage of less than one thousand dollars ($1,000)” at the end of subdivisions (a)(2) and (a)(3), in subdivision (a)(3), substituted “or tamper with any shrubbery, flowers, plants or other articles planted or placed within any cemetery to designate where human remains are interred” for “tamper with or deface any tombstone, headstone, monument, grave marker, grave ornamentation, grave artifacts, shrubbery, flowers, plants or other articles within any cemetery erected or placed to designate where a body is interred,” and made punctuation changes throughout the subsection; rewrote subsection (b); and, in subsection (c), inserted “of this section is a Class I felony if the damage caused by the violation is one thousand dollars ($1,000) or more. Any other violation” in the first sentence, and substituted “G.S. 15A-1343(b)(9)” for “G.S. 15A-1343(b)(6)” near the end of the second sentence.

CASE NOTES

This section creates a misdemeanor not defined as larceny. State v. Jackson, 218 N.C. 373 , 11 S.E.2d 149, 1940 N.C. LEXIS 159 (1940).

Interment of Body Required. —

The presence of a deceased body is an essential element of the crime of defacing or desecrating a grave under subdivision (a)(2) of this section, and to prove a violation of this section, the State must prove not only that the defendant willfully performed an act proscribed by the section, but that a deceased person was interred in the cemetery at the time the proscribed act was committed. State v. Phipps, 112 N.C. App. 626, 436 S.E.2d 280, 1993 N.C. App. LEXIS 1192 (1993), aff'd, 338 N.C. 305 , 449 S.E.2d 450, 1994 N.C. LEXIS 639 (1994).

Where the evidence showed there was not a body buried on the lot and there was no evidence that the lot would be used in the future for the burial of the dead, the lot was not a cemetery and subdivision (a)(2) does not apply. State v. Phipps, 338 N.C. 305 , 449 S.E.2d 450, 1994 N.C. LEXIS 639 (1994).

Right of Landowner to Remove Bodies or Monuments. —

Where the owner of land consents, either expressly or by implication, to the interment of dead bodies on his land, he has no right to afterwards remove the bodies or to deface or pull down the gravestones and monuments erected to perpetuate their memory. State v. Wilson, 94 N.C. 1015 , 1886 N.C. LEXIS 190 (1886).

Indictment. —

It is not necessary to charge in the indictment that the monument removed was intended to designate the spot where the dead body of a particular named person, or a person unknown, was interred. State v. Wilson, 94 N.C. 1015 , 1886 N.C. LEXIS 190 (1886).

§ 14-149. Desecrating, plowing over or covering up graves; desecrating human remains.

  1. It is a Class I felony, without authorization of law or the consent of the surviving spouse or next of kin of the deceased, to knowingly and willfully:
    1. Open, disturb, destroy, remove, vandalize or desecrate any casket or other repository of any human remains, by any means including plowing under, tearing up, covering over or otherwise obliterating or removing any grave or any portion thereof.
    2. Take away, disturb, vandalize, destroy, tamper with, or deface any tombstone, headstone, monument, grave marker, grave ornamentation, or grave artifacts erected or placed within any cemetery to designate the place where human remains are interred or to preserve and perpetuate the memory and the name of any person. This subdivision shall not apply to the ordinary maintenance and care of a cemetery.
    3. Repealed by Session Laws 2007-122, s. 2, effective December 1, 2007, and applicable to offenses committed on or after that date.

      (a1) It is a Class H felony, without authorization of law or the consent of the surviving spouse or next of kin of the deceased, to knowingly and willfully disturb, destroy, remove, vandalize, or desecrate any human remains that have been interred in a cemetery.

  2. The provisions of this section shall not apply to a professional archaeologist as defined in G.S. 70-28(4) acting pursuant to the provisions of Article 3 of Chapter 70 of the General Statutes.

History. 1889, c. 130; Rev., s. 3681; 1919, c. 218; C.S., s. 4321; 1981, c. 752, s. 2; c. 853, s. 5; 2007-122, s. 2.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Effect of Amendments.

Session Laws 2007-122, s. 2, effective December 1, 2007, and applicable to offenses committed on or after that date, added “desecrating human remains” at the end of the section catchline; rewrote subsection (a); and added subsection (a1).

CASE NOTES

Intent. —

The intent to open a grave and remove the dead body is sufficient criminal intent, and proof of the intent to disturb the grave is conclusive. State v. McLean, 121 N.C. 589 , 28 S.E. 140, 1897 N.C. LEXIS 287 (1897).

Persons Liable. —

The mayor or other town officers counseling their subordinates to remove bodies were liable under this section although they were honestly mistaken as to the scope of their official power. State v. McLean, 121 N.C. 589 , 28 S.E. 140, 1897 N.C. LEXIS 287 (1897).

When Lot Is Not Paid For. —

The fact that the lot has not been paid for will not excuse the disturbance of a body only for the purpose of moving it to a pauper section. State v. McLean, 121 N.C. 589 , 28 S.E. 140, 1897 N.C. LEXIS 287 (1897).

Damages. —

While desecrating grave sites in violation of this section requires a showing that damage of more than $1,000 resulted from the desecration, it does not require an additional showing of great monetary loss, and where the damages were $10,000, the same evidence was not used to prove both an element of the offense and the aggravating factor. State v. Sammartino, 120 N.C. App. 597, 463 S.E.2d 307, 1995 N.C. App. LEXIS 914 (1995).

Aggravating Factors. —

Where the trial court found as an aggravating factor that defendants’ conduct was intended to show disrespect to law enforcement in a manner calculated to be highly publicized and the trial court found that defendants’ conduct additionally was meant to show disrespect for law enforcement in general, because evidence was necessary to prove this portion of the factor which was not necessary to prove an element of the offense, that portion of the factor was proper. State v. Sammartino, 120 N.C. App. 597, 463 S.E.2d 307, 1995 N.C. App. LEXIS 914 (1995).

Civil Action Time-Barred. —

Grave desecration and negligence suit was untimely under 10-year period under either G.S. 1-56 or G.S. 1-52(16) as the causes of action did not accrue when some of the named defendants executed a quitclaim deed for a buyer in 2004, but accrued when defendants covered the graves prior to 1999; executing a quitclaim deed without informing the buyer of the existence of a gravesite was not an act of desecration. This interpretation is supported by G.S. 14-149 , which provides for the criminal desecration of graves. Robinson v. Wadford, 222 N.C. App. 694, 731 S.E.2d 539, 2012 N.C. App. LEXIS 1072 (2012).

§§ 14-150, 14-150.1. [Repealed]

Repealed by Session Laws 1981, c. 752, s. 3.

Cross References.

As to defacing or desecrating grave sites, see G.S. 14-148 .

As to desecrating, plowing over or covering up graves, see G.S. 14-149 .

§ 14-151. Interfering with gas, electric, and steam appliances or meters; penalties.

  1. It is unlawful for any person to willfully, with intent to injure or defraud, commit any of the following acts:
    1. Connect a tube, pipe, wire, or other instrument or contrivance with a pipe or wire used for conducting or supplying illuminating gas, fuel, natural gas, or electricity in such a manner as to supply the gas or electricity to any burner, orifice, lamp, or motor where the gas or electricity is or can be burned or used without passing through the meter or other instrument provided for registering the quantity consumed.
    2. Obstruct, alter, bypass, tamper with, injure, or prevent the action of a meter or other instrument used to measure or register the quantity of illuminating fuel, natural gas, water, or electricity passing through the meter by a person other than an employee of the company owning or supplying any gas, water, or electric meter, who willfully detaches or disconnects the meter, or makes or reports any test of, or examines for the purpose of testing any meter so detached or disconnected.
    3. In any manner whatever change, extend, or alter any service or other pipe, wire, or attachment of any kind, connecting with or through which natural or artificial gas or electricity is furnished from the gas mains or pipes of any person, without first procuring from the person written permission to make the change, extension, or alterations.
    4. Make any connection or reconnection with the gas mains, water pipes, service pipes, or wires of any person, furnishing to consumers natural or artificial gas, water, or electricity, or turn on or off or in any manner interfere with any valve or stopcock or other appliance belonging to that person, and connected with the person’s service or other pipes or wires, or enlarge the orifices of mixers, or use natural gas for heating purposes except through mixers, or electricity for any purpose without first procuring from the person a written permit to turn on or off the stopcock or valve, or to make the connection or reconnections, or to enlarge the orifice of mixers, or to use for heating purposes without mixers, or to interfere with the valves, stopcocks, wires, or other appliances of them, as the case may be.
    5. Retain possession of or refuse to deliver any mixer, meter, lamp, or other appliance which may be leased or rented by any person, for the purpose of furnishing gas, water, electricity, or power through the appliance, or sell, lend, or in any other manner dispose of the appliance to any person other than the person entitled to the possession of the appliance.
    6. Set on fire any gas escaping from wells, broken or leaking mains, pipes, valves, or other appliances used by any person in conveying gas to consumers, or interfere in any manner with the wells, pipes, mains, gateboxes, valves, stopcocks, wires, cables, conduits, or any other appliances, machinery, or property of any person engaged in furnishing gas to consumers unless employed by or acting under the authority and direction of that person.
    7. Open or cause to be opened, or reconnect or cause to be reconnected any valve lawfully closed or disconnected by a district steam corporation.
    8. Turn on steam or cause it to be turned on or to reenter any premises when the steam has been lawfully stopped from entering the premises.
    9. Reconnect electricity, gas, or water connections or otherwise turn back on one or more of those utilities when they have been lawfully disconnected or turned off by the provider of the utility.
    10. Alter, bypass, interfere with, or cut off any load management device, equipment, or system which has been installed by the electricity supplier for the purpose of limiting the use of electricity at peak-load periods. However, if there has been a written request to remove the load management device, equipment, or system to the electric supplier and the electric supplier has not removed the device within two working days, there is no violation of this section.
  2. Any meter or service entrance facility found to have been altered, tampered with, or bypassed in a manner that would cause the meter to inaccurately measure and register the electricity, gas, or water consumed or which would cause the electricity, gas, or water to be diverted from the recording apparatus of the meter is prima facie evidence of intent to violate and of the violation of this section by the person in whose name the meter is installed or the person or persons so using or receiving the benefits of the unmetered, unregistered, or diverted electricity, gas, or water.
  3. For the purposes of this section, the term “gas” means all types and forms of gas, including, but not limited to, natural gas.
  4. Criminal violations of this section are punishable as follows:
    1. A violation of this section is a Class 1 misdemeanor.
    2. A second or subsequent violation of this section is a Class H felony.
    3. A violation of this section that results in significant property damage or public endangerment is a Class F felony.
    4. Unless the conduct is covered under some other provision of law providing greater punishment, a violation that results in the death of another is a Class D felony.
  5. Whoever is found in a civil action to have violated any provision of this section is liable to the electric, gas, or water supplier in triple the amount of losses and damages sustained or five thousand dollars ($5,000), whichever is greater.
  6. Nothing in this section applies to licensed contractors while performing usual and ordinary services in accordance with recognized customs and standards.

History. 1901, c. 735; Rev., s. 3666; C.S., s. 4323; 1993, c. 539, s. 88; 1994, Ex. Sess., c. 24, s. 14(c); 2013-88, s. 1; 2018-142, s. 2(a).

Editor’s Note.

This section was amended by Session Laws 2013-88, s. 1, effective December 1, 2013, in the coded bill drafting format provided by G.S. 120-20.1 . Subsection (e), as set out in the act, contains the text of G.S. 14-151 .1(d), with amendments, as though that subsection was already part of G.S. 14-151 , even though it was newly added by this session law. Subsection (e) has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2018-142, s. 2(b), provides that the amendment to this section by Session Laws 2018-142, s. 2(a), is applicable to violations committed on or after December 14, 2018.

Effect of Amendments.

Session Laws 2013-88, s. 1, effective December 1, 2013, rewrote this section. For applicability, see Editor’s note.

Session Laws 2018-142, s. 2(a), effective December 14, 2018, rewrote the section. For applicability, see editor’s note.

§ 14-151.1. [Repealed]

Repealed by Session Laws 2013-88, s. 2, effective December 1, 2013, and applicable to offenses committed on or after that date.

History. 1977, c. 735, s. 1; 1983, c. 508, ss. 1, 2; 1989, c. 119; 1993, c. 539, s. 89; 1994, Ex. Sess., c. 24, s. 14(c); repealed by 2013-88, s. 2, effective December 1, 2013.

Editor’s Note.

Former G.S. 14-151.1 pertained to interfering with electric, gas or water meters; prima facie evidence of intent to alter, tamper with or bypass electric, gas or water meters; unlawful reconnection of electricity, gas, or water; and civil liability. For present similar provisions, see G.S. 14-151 .

§ 14-152. Injuring fixtures and other property of gas companies; civil liability.

If any person shall willfully, wantonly or maliciously remove, obstruct, injure or destroy any part of the plant, machinery, fixtures, structures or buildings, or anything appertaining to the works of any gas company, or shall use, tamper or interfere with the same, he shall be deemed guilty of a Class 3 misdemeanor. Such person shall also forfeit and pay to the company so injured, to be sued for and recovered in a civil action, double the amount of the damages sustained by any such injury.

History. 1889 (Pr.), c. 35, s. 3; Rev., s. 3671; C.S., s. 4324; 1993, c. 539, s. 90; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-153. Tampering with engines and boilers.

If any person shall willfully turn out water from any boiler or turn the bolts of any engine or boiler, or meddle or tamper with such boiler or engine, or any other machinery in connection with any boiler or engine, causing loss, damage, danger or delay to the owner in the prosecution of his work, he shall be guilty of a Class 2 misdemeanor.

History. 1901, c. 733; Rev., s. 3667; C.S., s. 4325; 1993, c. 539, s. 91; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-154. Injuring wires and other fixtures of telephone, telegraph, and electric-power companies.

If any person shall willfully injure, destroy or pull down any telegraph, telephone, cable telecommunications, or electric-power-transmission pedestal or pole, or any telegraph, telephone, cable telecommunications, or electric power line, wire or fiber insulator, power supply, transformer, transmission or other apparatus, equipment or fixture used in the transmission of telegraph, telephone, cable telecommunications, or electrical power service or any equipment related to wireless communications regulated by the Federal Communications Commission, that person shall be guilty of a Class I Felony.

History. 1881, c. 4; 1883, c. 103; Code, s. 1118; Rev., s. 3847; 1907, c. 827, s. 1; C.S., s. 4326; 1993, c. 539, s. 92; 1994, Ex. Sess., c. 24, s. 14(c); 2007-301, s. 2.

Editor’s Note.

At the direction of the Revisor of Statutes, a comma was inserted following “telegraph” in the section heading.

Effect of Amendments.

Session Laws 2007-301, s. 2, effective December 1, 2007, and applicable to offenses committed on or after that date, rewrote the section.

§ 14-155. Unauthorized connections with telephone or telegraph.

It shall be unlawful for any person to tap or make any connection with any wire or apparatus of any telephone or telegraph company operating in this State, except such connection as may be authorized by the person or corporation operating such wire or apparatus. Any person violating this section shall be guilty of a Class 3 misdemeanor. Each day’s continuance of such unlawful connection shall be a separate offense. No connection approved by the Federal Communications Commission or the North Carolina Utilities Commission shall be a violation of this section.

History. 1911, c. 113; C.S., s. 4327; 1973, c. 648; 1977, 2nd Sess., c. 1185, s. 2; 1993, c. 539, s. 93; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to theft of cable television service, see G.S. 14-118.5 .

Legal Periodicals.

For 1984 survey, “North Carolina’s Theft of Cable Television Service Statute: Prospects of a Brighter Future for the Cable Television Industry,” see 63 N.C.L. Rev. 1296 (1985).

CASE NOTES

Right to Be Free of Unauthorized Wiretapping Nonnegotiable. —

Where employee claimed that on various occasions both her work and home telephones were monitored without her consent and the issue of whether employee telephone was monitored at work was a dispute that fell under the terms of collective bargaining agreement, employee could pursue her invasion of privacy claim based on alleged wiretapping under state law, since employee’s right to be free of unauthorized wiretapping of her telephone was in the nature of a nonnegotiable right. Binkley v. Loughran, 714 F. Supp. 768, 1988 U.S. Dist. LEXIS 16330 (M.D.N.C. 1988), aff'd, 940 F.2d 651, 1991 U.S. App. LEXIS 23437 (4th Cir. 1991).

For admissibility of tape recordings made in violation of this section in a prosecution under former G.S. 14-196.1 , see State v. Godwin, 267 N.C. 216 , 147 S.E.2d 890, 1966 N.C. LEXIS 1012 (1966).

§ 14-156. Injuring fixtures and other property of electric-power companies.

It shall be unlawful for any person willfully and wantonly, and without the consent of the owner, to take down, remove, injure, obstruct, displace or destroy any line erected or constructed for the transmission of electrical current, or any poles, towers, wires, conduits, cables, insulators or any support upon which wires or cables may be suspended, or any part of any such line or appurtenances or apparatus connected therewith, or to sever any wire or cable thereof, or in any manner to interrupt the transmission of electrical current over and along any such line, or to take down, remove, injure or destroy any house, shop, building or other structure or machinery connected with or necessary to the use of any line erected or constructed for the transmission of electrical current, or to wantonly or willfully cause injury to any of the property mentioned in this section by means of fire. Any person violating any of the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1907, c. 919; C.S., s. 4328; 1993, c. 539, s. 94; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-157. Felling trees on telephone and electric-power wires.

If any person shall negligently and carelessly cut or fell any tree, or any limb or branch therefrom, in such a manner as to cause the same to fall upon and across any telephone, electric light or electric-power-transmission wire, from which any injury to such wire shall be occasioned, he shall be guilty of a Class 3 misdemeanor, and shall also be liable to penalty of fifty dollars ($50.00) for each and every offense.

History. 1903, c. 616; Rev., s. 3849; 1907, c. 827, s. 2; C.S., s. 4329; 1969, c. 1224, s. 9; 1993, c. 539, s. 95; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-158. Interfering with telephone lines.

If any person shall unnecessarily disconnect the wire or in any other way render any telephone line, or any part of such line, unfit for use in transmitting messages, or shall unnecessarily cut, tear down, destroy or in any way render unfit for the transmission of messages any part of the wire of a telephone line, he shall be guilty of a Class 2 misdemeanor.

History. 1901, c. 318; Rev., s. 3845; C.S., s. 4330; 1969, c. 1224, s. 3; 1993, c. 539, s. 96; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Civil Action for Damages. —

The willful cutting of a telephone wire in public use for hire is made a misdemeanor by this section, and where such act has caused damages to another the action sounds in tort, making the tort-feasor liable for any injuries naturally following and flowing from the wrongful act, independent of any contractual relations between the parties. Hodges v. Virginia-Carolina Ry., 179 N.C. 566 , 103 S.E. 145, 1920 N.C. LEXIS 291 (1920).

§ 14-159. Injuring buildings or fences; taking possession of house without consent.

If any person shall deface, injure or damage any house, uninhabited house or other building belonging to another; or deface, damage, pull down, injure, remove or destroy any fence or wall enclosing, in whole or in part, the premises belonging to another; or shall move into, take possession of and/or occupy any house, uninhabited house or other building situated on the premises belonging to another, without having first obtained authority so to do and consent of the owner or agent thereof, he shall be guilty of a Class 3 misdemeanor.

History. 1929, c. 192, s. 1; 1993, c. 539, s. 97; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to taking unlawful possession of another’s house, see G.S. 14-143 .

As to injuring houses, churches, fences and walls, see G.S. 14-144 .

As to willful destruction by a tenant, see G.S. 42-11 .

§ 14-159.1. Contaminating a public water system.

  1. A person commits the offense of contaminating a public water system, as defined in G.S. 130A-313(10) , if he willfully or wantonly:
    1. Contaminates, adulterates or otherwise impurifies or attempts to contaminate, adulterate or otherwise impurify the water in a public water system, including the water source, with any toxic chemical, biological agent or radiological substance that is harmful to human health, except those added in approved concentrations for water treatment operations; or
    2. Damages or tampers with the property or equipment of a public water system with the intent to impair the services of the public water system.
  2. Any person who commits the offense defined in this section is guilty of a Class C felony.

History. 1983, c. 507, s. 1; 1985, c. 509, s. 4; c. 689, s. 5; 1993, c. 539, s. 1189; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Evidence Did Not Support Acting-in-Concert Liability Theory. —

Reversal of defendant’s multiple convictions for contaminating a public water system was required, when defendant paid an individual to break water lines so that defendant could repair them at the county’s expense, because the evidence did not support the acting-in-concert liability upon which the State of North Carolina relied in that defendant was not actually or constructively present during the commission of the crimes when the individual broke the water lines. State v. Hardison, 243 N.C. App. 723, 779 S.E.2d 505, 2015 N.C. App. LEXIS 894 (2015).

§ 14-159.2. Interference with animal research.

  1. It is unlawful for a person willfully to commit any of the following acts:
    1. The unauthorized entry into any research facility where animals are kept within the facility for research in the advancement of medical, veterinary, dental, or biological sciences, with the intent to (i) disrupt the normal operation of the research facility, or (ii) damage the research facility or any personal property located thereon, or (iii) release from any enclosure or restraining device any animal kept within the research facility, or (iv) interfere with the care of any animal kept within the research facility;
    2. The damaging of any such research facility or any personal property located thereon;
    3. The unauthorized release from any enclosure or restraining device of any animal kept within any research facility; or
    4. The interference with the care of any animal kept within any research facility.
  2. Any person who commits an offense under subsection (a) of this section shall be guilty of a Class 1 misdemeanor.
  3. Any person who commits an offense under subsection (a) of this section that involves the release from any enclosure or restraining device of any animal having an infectious disease shall be guilty of a Class I felony.
  4. As a condition of probation, the court may order a person convicted under this section to make restitution to the owner of the animal for damages, including the cost of restoring the animal to confinement and of restoring the animal to its health condition prior to any release, and for damages to personal property, including materials, equipment, data, and records, and real property caused by the interference.  If the interference causes the failure of an experiment, the restitution may include all costs of repeating the experiment, including replacement of the animals, labor, and materials.
  5. Nothing in this section shall be construed to affect any rights or causes of action of a person damaged through interference with animal research.

History. 1991, c. 203, s. 1; 1993, c. 539, ss. 98, 1190; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-159.3. Trespass to land on motorized all-terrain vehicle.

  1. No person shall operate any motorized all-terrain vehicle:
    1. On any private property not owned by the operator, without the written consent of the owner; or
    2. Within the banks of any stream or waterway, but excluding a sound or the Atlantic Ocean, the adjacent lands of which are not owned by the operator, without the consent of the owner or outside the restrictions imposed by the owner.

      (a1) A landowner who gives a person written consent to operate an all-terrain vehicle on the landowner’s property owes the person the same duty of care that the landowner owes a trespasser.

  2. A “motorized all-terrain vehicle”, as used in this section, is a two or more wheeled vehicle designed for recreational off-road use.
  3. A violation of this section shall be a Class 2 misdemeanor.

History. 1997-456, s. 56.8; 1997-487, s. 1; 2014-103, s. 11(a); 2015-26, s. 2.1; 2017-102, s. 4.

Effect of Amendments.

Session Laws 2014-103, s. 11(a), effective December 1, 2014, inserted “written” in subdivision (a)(1) and added subsection (a1). See Editor’s note for applicability.

Session Laws 2015-26, s. 2.1, effective May 21, 2015, substituted “all-terrain” for “all terrain” in the section heading and throughout the section.

Session Laws 2017-102, s. 4, effective July 12, 2017, in subsection (a1), substituted “the landowner’s property” for “his or her property” and substituted “the landowner” for “he or she”.

CASE NOTES

Definition of “Recreational Vehicle”. —

North Carolina statutes do not preclude the definition of a “recreational vehicle” including an ATV. Halter v. J.C. Penney Life Ins. Co., 1999 U.S. Dist. LEXIS 21386 (M.D.N.C. Nov. 30, 1999).

§ 14-159.4. Cutting, mutilating, defacing, or otherwise injuring property to obtain nonferrous metals.

  1. Definition of Nonferrous Metals. —  For purposes of this section, the term “nonferrous metals” means metals not containing significant quantities of iron or steel, including, but not limited to, copper wire, copper clad steel wire, copper pipe, copper bars, copper sheeting, aluminum other than aluminum cans, a product that is a mixture of aluminum and copper, catalytic converters, lead-acid batteries, and stainless steel beer kegs or containers.
  2. Prohibited Act. —  It is unlawful for a person to willfully and wantonly cut, mutilate, deface, or otherwise injure any personal or real property of another, including any fixtures or improvements, for the purpose of obtaining nonferrous metals in any amount.
  3. Punishment. —  Violations of this section are punishable as follows:
    1. Default. —  If the direct injury is to property, and the amount of loss in value to the property, the amount of repairs necessary to return the property to its condition before the act, or the property loss (including fixtures or improvements) is less than one thousand dollars ($1,000), a violation shall be punishable as a Class 1 misdemeanor. If the applicable amount is one thousand dollars ($1,000) or more, but less than ten thousand dollars ($10,000), a violation shall be punishable as a Class H felony. If the applicable amount is ten thousand dollars ($10,000) or more, a violation shall be deemed an aggravated offense and shall be punishable as a Class F felony.
    2. When person suffers serious injury. —  Unless the conduct is covered under some other provision of law providing greater punishment, a violation of this section that results in a serious injury to another person is punishable as a Class A1 misdemeanor.
    3. When person suffers a serious bodily injury. —  Unless the conduct is covered under some other provision of law providing greater punishment, a violation of this section that results in serious bodily injury to another person is punishable as a Class F felony. For purposes of this subdivision, “serious bodily injury” is as defined in G.S. 14-32.4 .
    4. When person is killed. —  Unless the conduct is covered under some other provision of law providing greater punishment, a violation of this section that results in the death of another person is punishable as a Class D felony.
    5. When critical infrastructure affected. —  Unless the conduct is covered under some other provision of law providing greater punishment, a violation of this section that results in the disruption of communication or electrical service to critical infrastructure or to more than 10 customers of the communication or electrical service is guilty of a Class 1 misdemeanor.
  4. Liability. —  This section does not create or impose a duty of care upon the owner of personal or real property that would not otherwise exist under common law. A public or private owner of personal or real property shall not be civilly liable:
    1. To a person who is injured while committing or attempting to commit a violation of this section.
    2. To a person who is injured while a third party is committing or attempting to commit a violation of this section.
    3. For a person’s injuries caused by a dangerous condition created as a result of a violation of this section, when the owner does not know and could not have reasonably known of the dangerous condition.

History. 2012-46, s. 31.

Cross References.

As to regulation of sales and purchases of metals, see Part 3 of Article 45 of Chapter 66, G.S. 66-420 et seq.

§ 14-159.5.

Reserved for future codification purposes.

Article 22A. Trespassing upon “Posted” Property to Hunt, Fish, Trap, or Remove Pine Needles/Straw.

§ 14-159.6. Trespass for purposes of hunting, etc., without written consent a misdemeanor; defense.

  1. Any person who willfully goes on the land, waters, ponds, or a legally established waterfowl blind of another that has been posted in accordance with the provisions of G.S. 14-159.7 , to hunt, fish or trap without written permission of the landowner, lessee, or his agent shall be guilty of a Class 2 misdemeanor. Written permission shall be carried on one’s person, signed by the landowner, lessee, or agent, and dated within the last 12 months. The written permission shall be displayed upon request of any law enforcement officer of the Wildlife Resources Commission, sheriff or deputy sheriff, or other law enforcement officer with general subject matter jurisdiction. A person shall have written permission for purposes of this section if a landowner, lessee, or agent has granted permission to a club to hunt, fish, or trap on the land and the person is carrying both a current membership card demonstrating the person’s membership in the club and a copy of written permission granted to the club that complies with the requirements of this section.
  2. Any person who willfully goes on the land of another that has been posted in accordance with the provisions of G.S. 14-159.7(1), to rake or remove pine needles or pine straw without the written consent of the owner or his agent shall be guilty of a Class 1 misdemeanor.
  3. It is an affirmative defense to a prosecution under subsection (a) or (b) of this section that the person had in fact obtained prior permission of the owner, lessee, or agent as required by those subsections but did not have on his or her person valid written permission at the time of citation or arrest.

History. 1949, c. 887, s. 1; 1953, c. 1226; 1965, c. 1134; 1975, c. 280, s. 1; 1979, c. 830, s. 11; 1991, c. 435, s. 4; 1993, c. 539, s. 99; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(z); 2011-231, s. 1.

Local Modification.

Avery: 1967, c. 644; Granville: 2012-52, s. 1; Mitchell and Watauga: 1967, c. 644.

Effect of Amendments.

Session Laws 2011-231, s. 1, effective October 1, 2011, and applicable to offenses committed on or after that date, rewrote subsections (a) and (b) to the extent that a detailed comparison is impracticable; and added subsection (c).

Legal Periodicals.

For note, “Hunting and Posting on Private Land in America,” see 54 Duke L.J. 549 (2004).

CASE NOTES

Prohibited Activities. —

This section prohibits hunting, fishing or trapping on properly posted lands or waters without the written consent of the owner or his agent, provided that in designated counties, including Halifax County, no arrest may be made for such violation without consent of the owner or his agent. State v. Manning, 3 N.C. App. 451, 165 S.E.2d 13, 1969 N.C. App. LEXIS 1598 (1969) (decided under former G.S. 113-120.1).

Term “Owner” Does Not Include Lessee. —

In a prosecution in Halifax County under this section for a trespass by fishing on properly posted lands and waters of a private club without the written consent of the owner or his agent, defendants’ motion for nonsuit should have been allowed where the State’s evidence disclosed that the private club was the lessee of the land under and around the lake upon which defendants were fishing, a lessee not being included within the term “owner” as used in G.S. 113-130 , and there being no showing that defendants were fishing without the written consent of the actual owner, or that the owner consented to their arrest, or that the private club was the agent of the owner for these purposes. State v. Manning, 3 N.C. App. 451, 165 S.E.2d 13, 1969 N.C. App. LEXIS 1598 (1969) (decided under former G.S. 113-120.1).

Whether a body of water is a “private pond” is not relevant to a prosecution for trespass under this section, there being no requirement that a pond must be a “private pond” in order to post the notices and signs described in G.S. 113-120.2 (now G.S. 14-159.7 ). State v. Manning, 3 N.C. App. 451, 165 S.E.2d 13, 1969 N.C. App. LEXIS 1598 (1969) (decided under former G.S. 113-120.1).

§ 14-159.7. Regulations as to posting of property.

For purposes of posting property under G.S. 14-159.7 , the owner or lessee of the property may use either of the following methods:

  1. The owner or lessee of the property may place notices, signs, or posters on the property. The notices, signs or posters shall measure not less than 120 square inches and shall be conspicuously posted on private lands not more than 200 yards apart close to and along the boundaries. At least one such notice, sign, or poster shall be posted on each side of such land, and one at each corner thereof, provided that said corner can be reasonably ascertained. For the purpose of prohibiting fishing, or the taking of fish by any means, in any stream, lake, or pond, it shall only be necessary that the signs, notices, or posters be posted along the stream or shoreline of a pond or lake at intervals of not more than 200 yards apart.
  2. The owner or lessee of the property may place identifying purple paint marks on trees or posts around the area to be posted. Each paint mark shall be a vertical line of at least eight inches in length, and the bottom of the mark shall be no less than three feet nor more than five feet from the base of the tree or post. The paint marks shall be placed no more than 100 yards apart and shall be readily visible to any person approaching the property. For the purpose of prohibiting fishing, or the taking of fish by any means, in any stream, lake, or pond, it shall only be necessary that the paint marks be placed along the stream or shoreline of a pond or lake at intervals of not more than 100 yards apart.

History. 1949, c. 887, s. 2; 1953, c. 1226; 1965, c. 923; 1975, c. 280, ss. 2, 3; 1979, c. 830, s. 11; 2011-231, s. 2.

Effect of Amendments.

Session Laws 2011-231, s. 2, effective October 1, 2011, and applicable to offenses committed on or after that date, added the introductory language; added the subdivision (1) designation, and therein added the first sentence, and deleted “described in G.S. 14-159.6 ” following “posters” in the second sentence; and added subdivision (2).

§ 14-159.8. Mutilation, etc., of “posted” signs; posting signs without consent of owner or agent.

Any person who shall mutilate, destroy or take down any “posted,” “no hunting” or similar notice, sign or poster on the lands, waters, or legally established waterfowl blind of another, or who shall post such sign or poster on the lands, waters or legally established waterfowl blind of another, without the consent of the owner or his agent, shall be deemed guilty of a Class 3 misdemeanor and only punished by a fine of not more than one hundred dollars ($100.00).

History. 1949, c. 887, s. 3; 1953, c. 1226; 1969, c. 51; 1979, c. 830, s. 11; 1993, c. 539, s. 100; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-159.9. Entrance on navigable waters, etc., for purpose of fishing, hunting or trapping not prohibited.

Nothing in this Article shall be construed to prohibit the entrance of any person upon navigable waters and the bays and sounds adjoining such waters for the purpose of fishing, hunting or trapping.

History. 1949, c. 887, s. 4; 1953, c. 1226; 1979, c. 830, s. 11.

Legal Periodicals.

For article, “It’s Navigable In Fact So I Can Fish IN It: The Public Right to Use Man-Made, Navigable In-Fact Waters of Coastal North Carolina,” see 89 N.C.L. Rev. 2095 (2011).

§ 14-159.10. Enforcement of Article.

This Article may be enforced by sheriffs or deputy sheriffs, law enforcement officers of the Wildlife Resources Commission, and other peace officers with general subject matter jurisdiction.

History. 1979, c. 830, s. 11; 2011-231, s. 3.

Effect of Amendments.

Session Laws 2011-231, s. 3, effective October 1, 2011, and applicable to offenses committed on or after that date, in the section catchline, deleted “by peace officers; wildlife protectors authorized to execute process” from the end; and in text, substituted “sheriffs or deputy sheriffs, law enforcement officers of the Wildlife Resources Commission” for “deputy sheriffs,” and deleted the last sentence, which read: “Law enforcement officers of the North Carolina Wildlife Resources Commission may execute process issued by the court for violations of this Article.”

Article 22B. First and Second Degree Trespass.

§ 14-159.11. Definition.

As used in this Article, “building” means any structure or part of a structure, other than a conveyance, enclosed so as to permit reasonable entry only through a door and roofed to protect it from the elements.

History. 1987, c. 700, s. 1.

§ 14-159.12. First degree trespass.

  1. Offense. —  A person commits the offense of first degree trespass if, without authorization, he enters or remains:
    1. On premises of another so enclosed or secured as to demonstrate clearly an intent to keep out intruders;
    2. In a building of another; or
    3. On the lands of the Eastern Band of Cherokee Indians after the person has been excluded by a resolution passed by the Eastern Band of Cherokee Indian Tribal Council.
  2. Except as otherwise provided in subsection (c), (d), or (f) of this section, first degree trespass is a Class 2 misdemeanor.
  3. Except as otherwise provided in subsection (d) of this section, a violation of subsection (a) of this section is a Class A1 misdemeanor if all of the following circumstances exist:
    1. The offense is committed on the premises of any of the following:
      1. A facility that is owned or operated by an electric power supplier as defined in G.S. 62-133.8(a)(3) and that is either an electric generation facility, a transmission substation, a transmission switching station, a transmission switching structure, or a control center used to manage transmission operations or electrical power generating at multiple plant locations.
      2. Any facility used or available for use in the collection, treatment, testing, storing, pumping, or distribution of water for a public water system.
      3. Any facility, including any liquefied natural gas storage facility or propane air facility, that is owned or operated by a natural gas local distribution company, natural gas pipeline carrier operating under a certificate of public convenience and necessity from the Utilities Commission, municipal corporation operating a municipally owned gas distribution system, or regional natural gas district organized and operated pursuant to Article 28 of Chapter 160A of the General Statutes used for transmission, distribution, measurement, testing, regulating, compression, control, or storage of natural gas.
      4. Any facility used or operated for agricultural activities, as that term is defined in G.S. 106-581.1 .
    2. The person actually entered a building, or it was necessary for the person to climb over, go under, or otherwise surmount a fence or other barrier to reach the facility.
  4. If, in addition to the circumstances set out in subsection (c) of this section, the violation also includes any of the following elements, then the offense is a Class H felony:
    1. The offense is committed with the intent to disrupt the normal operation of any of the facilities described in subdivision (1) of subsection (c) of this section.
    2. The offense involves an act that places either the offender or others on the premises at risk of serious bodily injury.
  5. As used in subsections (c) and (d) of this section, the term “facility” shall mean a building or other infrastructure.
  6. A violation of subsection (a) of this section is a Class I felony and shall include a fine of not less than one thousand dollars ($1,000) for each violation, if any of the following circumstances exist:
    1. The offense occurs on real property where the person has reentered after having previously been removed pursuant to the execution of a valid order or writ for possession.
    2. The offense occurs under color of title where the person has knowingly created or provided materially false evidence of an ownership or possessory interest.
    3. The offense is the person’s second or subsequent violation of subdivision (a)(3) of this section.

History. 1987, c. 700, s. 1; 1993, c. 539, s. 101; 1994, Ex. Sess., c. 24, s. 14(c); 2012-168, s. 1; 2014-103, s. 10(a); 2016-26, s. 1; 2018-66, s. 1.

Editor’s Note.

Session Laws 2018-66, s. 2, made the amendment of this section by Session Laws 2018-66, s. 1, effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2012-168, s. 1, effective September 1, 2012, rewrote subsection (b); and added subsections (c), (d) and (e). For applicability, see editor’s note.

Session Laws 2014-103, s. 10(a), effective December 1, 2014, added subdivision (c)(1)d. See Editor’s note for applicability.

Session Laws 2016-26, s. 1, effective December 1, 2016, added subsection (f); and in subsection (b), inserted “or (f)” and made related changes. See editor’s note for applicability.

Session Laws 2018-66, s. 1, added subdivisions (a)(3) and (f)(3); and made a minor stylistic change in subdivision (a)(2). For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Many of the cases annotated below were decided under former G.S. 14-126 , which described the crime of forcible entry and detainer, and former G.S. 14-134 , which pertained to the crime of trespass on land after being forbidden.

Actual Possession Necessary. —

The essential element of the offense of forcible entry was that the lands, etc., had to be in the actual possession of him whose possession was charged to have been interfered with. To constitute actual possession, there must have been an actual exercise of authority and control over the land, either in person or by the family or servants of the person alleged to have been in possession. He need not have at all times been personally present on the premises. State v. Bryant, 103 N.C. 436 , 9 S.E. 1, 1889 N.C. LEXIS 136 (1889).

Former G.S. 14-126 was designed to protect actual possession only, and it was no defense that the accused had title to the locus in quo if the prosecutor was in actual possession of it. State v. Baker, 231 N.C. 136 , 56 S.E.2d 424, 1949 N.C. LEXIS 501 (1949).

It was necessary to allege and establish actual possession in the prosecutor. State v. Cooke, 246 N.C. 518 , 98 S.E.2d 885, 1957 N.C. LEXIS 475 (1957).

The element of actual possession must be charged in the indictment. State v. Bryant, 103 N.C. 436 , 9 S.E. 1, 1889 N.C. LEXIS 136 (1889).

It is a sufficient compliance with this rule to allege that the owner was “then and there in peaceable possession.” State v. Eason, 70 N.C. 88 , 1874 N.C. LEXIS 172 (1874).

Where the possession of the prosecutor in forcible entry and detainer was only by sufferance, the prosecution could not be sustained. State v. Leary, 136 N.C. 578 , 48 S.E. 570, 1904 N.C. LEXIS 306 (1904).

Title Is Not Involved. —

The right or title to land could not be vindicated with the bludgeon, but the party who claimed the better title could, if it be denied or the actual possession of the land be refused, upon a lawful demand made for the same, resort to the peaceful methods and processes of the law for his redress and the recovery of his property. If, instead of pursuing this course, he elected to use violence, the law held him criminally responsible for his act. State v. Webster, 121 N.C. 586 , 28 S.E. 254, 1897 N.C. LEXIS 286 (1897) (where it was said: “As forcible trespass is essentially an offense against the possession of another and does not depend upon the title, it is proper to exclude evidence of title in defendants on trial under an indictment for such offense.”) State v. Davenport, 156 N.C. 596 , 72 S.E. 7, 1911 N.C. LEXIS 232 (1911).

The offense of forcible trespass under former G.S. 14-126 did not involve title to the premises, but was directed against the possession, and when the possession was in the prosecuting witness, and the entry was made in such a manner with such show of force, after being prohibited by the prosecuting witness, as tended to a breach of the peace, it was sufficient for conviction. State v. Earp, 196 N.C. 164 , 145 S.E. 23, 1928 N.C. LEXIS 308 (1928).

Forcible trespass and trespass were not lesser included offenses of attempted first-degree burglary. Attempted first-degree burglary did not require a commandment forbidding entry or an order to leave as did trespass under former G.S. 14-134 . It also did not require that the defendant enter the lands of another by force, threats of force or a show of strength by a multitude of people, as did forcible trespass under former G.S. 14-126 . State v. McAlister, 59 N.C. App. 58, 295 S.E.2d 501, 1982 N.C. App. LEXIS 2850 (1982).

First-degree trespass is a lesser included offense of felony breaking or entering. State v. Hamilton, 132 N.C. App. 316, 512 S.E.2d 80, 1999 N.C. App. LEXIS 111 (1999).

Forcible Trespass Not a Lesser Included Offense of Kidnapping. —

Since forcible trespass required proof of an element not essential to kidnapping, i.e., entry into a person’s premises, it could not be a lesser included offense of kidnapping. State v. McRae, 58 N.C. App. 225, 292 S.E.2d 778, 1982 N.C. App. LEXIS 2729 (1982).

Forcible Trespass Was Not a Lesser Included Offense of Common-Law Robbery. —

Since the statute on forcible trespass to real property contained the different element of “entry into lands and tenements,” the statutory offense of forcible trespass to real property therefore could not be a lesser included offense of common-law robbery. Similarly, common-law forcible trespass to real property by definition required an unlawful invasion of or threat to premises possessed by another, and this involved an element separate and distinct from those of common-law robbery. State v. Bates, 70 N.C. App. 477, 319 S.E.2d 683, 1984 N.C. App. LEXIS 3703 (1984), aff'd, 313 N.C. 580 , 330 S.E.2d 200, 1985 N.C. LEXIS 1562 (1985).

Entry after being forbidden did not involve an assault or entry with a strong hand as did forcible entry and detainer, and it did not require actual occupancy of the land by the complaining party, but it did require the complaining party to have legal title to the land. State v. Blackmon, 36 N.C. App. 207, 243 S.E.2d 417, 1978 N.C. App. LEXIS 2449 (1978).

A peaceful entry negatived liability under former G.S. 14-126 . State v. Clyburn, 247 N.C. 455 , 101 S.E.2d 295, 1958 N.C. LEXIS 552 (1958).

One Who Remained After Being Directed to Leave Was Guilty of Wrongful Entry. —

In applying this section, one who remained after being directed to leave was guilty of a wrongful entry even though the original entrance was peaceful and authorized. State v. Clyburn, 247 N.C. 455 , 101 S.E.2d 295, 1958 N.C. LEXIS 552 (1958). But see State v. Birkhead, 48 N.C. App. 575, 269 S.E.2d 314, 1980 N.C. App. LEXIS 3260 , cert. denied, 301 N.C. 528 , 273 S.E.2d 455 (1980).

One who remained in a home after being directed to leave was guilty of a wrongful entry and became a trespasser, even though the original entry was peaceful and authorized, and a householder could use such force as was reasonably necessary to eject him. State v. Kelly, 24 N.C. App. 670, 211 S.E.2d 854, 1975 N.C. App. LEXIS 2466 (1975).

As Were Those Who Abused Possessor. —

In order to convict of a misdemeanor under the provisions of former G.S. 14-126 , it was not necessary that the act of going on the lands was unlawful, if the accused thereafter had in overpowering numbers cursed and abused the one in lawful possession, using threatening and abusive language. State v. Fleming, 194 N.C. 42 , 138 S.E. 342, 1927 N.C. LEXIS 13 (1927).

The unlatching and opening of the screen and the attempt to open the door, as shown by the State’s evidence, was enough to constitute entry. State v. Blackmon, 36 N.C. App. 207, 243 S.E.2d 417, 1978 N.C. App. LEXIS 2449 (1978).

Staging Sit-In. —

Where defendants acted in concert with approximately 20 other persons in staging a sit-in, and their number was of such a magnitude that only by yielding to their continued presence could a breach of the peace be avoided, once they refused to leave as requested, in such a situation, the original entry, though peaceful, became unlawful, though no other force was used. State v. Birkhead, 48 N.C. App. 575, 269 S.E.2d 314, 1980 N.C. App. LEXIS 3260 , cert. denied, 301 N.C. 528 , 273 S.E.2d 455 (1980).

In a prosecution of defendants under former G.S. 14-126 for forcible entry, the multitude of persons entering the property was sufficient to constitute the required force and the only force required was the force necessary to remain on the premises after having been requested to leave, where defendants acted in concert with approximately 20 other persons in staging a sit-in at the premises of a utility company. State v. Birkhead, 48 N.C. App. 575, 269 S.E.2d 314, 1980 N.C. App. LEXIS 3260 , cert. denied, 301 N.C. 528 , 273 S.E.2d 455 (1980).

Entry Under Void Warrant. —

Where four or more men entered upon premises in the actual possession of another by virtue of a warrant and proceedings before a magistrate, which were a nullity, and ejected such person and his family from the house they were occupying, they were guilty of a forcible trespass. State v. Yarborough, 70 N.C. 250 , 1874 N.C. LEXIS 200 (1874); Atlantic T. & O.R.R. v. Johnston, 70 N.C. 348 , 1848 N.C. LEXIS 197 (1848).

No Accessories. —

In misdemeanors there were no accessories, and those who were present in numbers, some armed with axes and others with guns, while one of their number caused the prosecutor’s agents to abandon the locus in quo, were his aiders and abettors and equally guilty of forcible trespass. State v. Davenport, 156 N.C. 596 , 72 S.E. 7, 1911 N.C. LEXIS 232 (1911).

Alleging Expulsion of Possession. —

While expulsion of possession must be alleged where actual ouster has occurred, such an allegation was not essential when the basis for charging defendants with violation of former G.S. 14-126 was because of a refusal to leave, thus distinguishing the decision in State v. Bryant, 103 N.C. 436 , 9 S.E. 1, 1889 N.C. LEXIS 136 (1889); State v. Birkhead, 48 N.C. App. 575, 269 S.E.2d 314, 1980 N.C. App. LEXIS 3260 , cert. denied, 301 N.C. 528 , 273 S.E.2d 455 (1980).

Sufficiency of Warrant. —

A warrant charging an offense under former G.S. 14-126 was sufficient even though it did not charge occupancy at the time of entry where the warrant cited the section and charged that with “force and violence” the defendant trespassed upon the property of the occupant. State v. Blackmon, 36 N.C. App. 207, 243 S.E.2d 417, 1978 N.C. App. LEXIS 2449 (1978).

Essential Ingredients of Offense. —

To constitute trespass on the land of another after notice or warning under former G.S. 14-134 , three essential ingredients had to coexist: (1) The land had to be the land of the prosecutor in the sense that it was in either his actual or constructive possession; (2) the accused had to enter upon the land intentionally; and (3) the accused had to do this after being forbidden to do so by the prosecutor. State v. Baker, 231 N.C. 136 , 56 S.E.2d 424, 1949 N.C. LEXIS 501 (1949).

To constitute the offense forbidden by former G.S. 14-134 and with which defendants were charged there had to be an entry on land after being forbidden; and such entry had to be wilful, and not from ignorance, accident, or under a bona fide claim of right or license. State v. Cobb, 262 N.C. 262 , 136 S.E.2d 674, 1964 N.C. LEXIS 636 (1964).

Entering the property “without a license therefor” was not a necessary element of the crime under former G.S. 14-134 . State v. Edgerton, 25 N.C. App. 45, 212 S.E.2d 398, 1975 N.C. App. LEXIS 2165 (1975).

Possession was an essential element of the crime. If the State failed to establish that prosecutor had possession (actual or constructive) no crime had been established. State v. Cooke, 246 N.C. 518 , 98 S.E.2d 885, 1957 N.C. LEXIS 475 (1957).

The principal distinctions between forcible trespass and forcible entry and detainer were that forcible trespass required that the complaining party be an occupant of the premises while forcible entry and detainer required occupancy plus some type of estate in the land. State v. Blackmon, 36 N.C. App. 207, 243 S.E.2d 417, 1978 N.C. App. LEXIS 2449 (1978).

Entry Under Claim of Right Was a Defense to Criminal Prosecution. —

One who entered upon the land of another under a bona fide claim of right was guilty of no criminal offense. State v. Crosset, 81 N.C. 579 , 1879 N.C. LEXIS 237 (1879).

In a prosecution under former G.S. 14-134 , even though the State established that defendant intentionally entered upon land in the actual or constructive possession of prosecutor after being forbidden to do so by the prosecutor, and thus established as an ultimate fact that defendant entered the locus in quo without legal right, defendant could still escape conviction by showing as an affirmative defense that he entered under a bona fide claim of right, i.e., that he believed he had a right to enter, and that he had reasonable grounds for such belief. State v. Baker, 231 N.C. 136 , 56 S.E.2d 424, 1949 N.C. LEXIS 501 (1949).

Good faith in making the entry was a defense. State v. Cooke, 246 N.C. 518 , 98 S.E.2d 885, 1957 N.C. LEXIS 475 (1957).

But Not to a Civil Action. —

Entry under a claim of right was a defense only in a criminal action, as ignorance of a trespasser did not exonerate him from civil liability. State v. Whitener, 93 N.C. 590 , 1885 N.C. LEXIS 127 (1885); State v. Clyburn, 247 N.C. 455 , 101 S.E.2d 295, 1958 N.C. LEXIS 552 (1958).

Burden on Defendant to Show Reasonable Grounds for Claim of Right. —

As a defense to a charge under former G.S. 14-134 , it was sufficient for defendants to establish that they entered under a bona fide belief of a right to so enter, which belief had a reasonable foundation in fact, but the burden was on the defendant to establish facts sufficient to excuse his wrongful conduct. State v. Cooke, 248 N.C. 485 , 103 S.E.2d 846, 1958 N.C. LEXIS 529 (1958); 364 U.S. 177, 80 S. Ct. 1482, 4 L. Ed. 2d 1650 (1960).

A mere belief on the part of a trespasser that he had a claim of right or license did not protect him; he had to satisfy the jury that he had reasonable grounds for such belief. State v. Cobb, 262 N.C. 262 , 136 S.E.2d 674, 1964 N.C. LEXIS 636 (1964). See also, State v. Fisher, 109 N.C. 817 , 13 S.E. 878, 1891 N.C. LEXIS 318 (1891); State v. Durham, 121 N.C. 546 , 28 S.E. 22, 1897 N.C. LEXIS 275 (1897); State v. Wells, 142 N.C. 590 , 55 S.E. 210, 1906 N.C. LEXIS 295 (1906); State v. Faggart, 170 N.C. 737 , 87 S.E. 31, 1915 N.C. LEXIS 477 (1915).

Land Sought to Be Condemned. —

An indictment for willful trespass under former G.S. 14-134 would lie against an employee of a railroad company for an entry after being forbidden on land which the company was seeking to condemn, the entry being for the purpose of constructing the road and before an appraisement has been made, although a restraining order against such a trespass would be refused. State v. Wells, 142 N.C. 590 , 55 S.E. 210, 1906 N.C. LEXIS 295 (1906).

Entry by Husband on Wife’s Property. —

A husband was not subject to the rule of this section, in regard to property of his wife, and although she might forbid him to enter he could enter nevertheless. State v. Jones, 132 N.C. 1043 , 43 S.E. 939, 1903 N.C. LEXIS 389 (1903).

Entry As Servant. —

One who entered upon the land of another, after being forbidden, as the servant, and at the command of a bona fide claimant, was not guilty of any criminal offense. State v. Winslow, 95 N.C. 649 , 1886 N.C. LEXIS 325 (1886).

Upon the trial under an indictment for trespass on lands after being forbidden, it was no defense to show that defendant acted under the instructions of his superior officer of a railroad company in entering upon the lands to construct a railroad. Evidence that such superior officer therein acted by the advice of counsel learned in the law was incompetent. State v. Mallard, 143 N.C. 666 , 57 S.E. 351, 1907 N.C. LEXIS 88 (1907).

Entry by Former Tenant to Gather Crops. —

For a conviction under the provisions of former G.S. 14-134 for unlawful trespass on lands after being forbidden, it was not alone sufficient to show that the trespass had been forbidden, when there was evidence tending to show that the trespasser peacefully entered upon a claim of title, founded upon a reasonable belief that he had the right to go upon the lands; and a peremptory instruction to find the prisoner guilty upon the evidence was held as error, there being evidence that the trespasser had been a tenant upon the lands of the prosecutor, and had entered upon the lands to gather the crops he had sown and cultivated, after he had moved to another place with the intention to return for this purpose, believing he had the right, though forbidden to do so by the prosecutor. State v. Faggart, 170 N.C. 737 , 87 S.E. 31, 1915 N.C. LEXIS 477 (1915).

Entry as Guest of Tenant. —

One forbidden by the landlord to enter his land was not guilty under former G.S. 14-134 if he entered a part of the land in the possession of a tenant and as a guest of the tenant. State v. Lawson, 101 N.C. 717 , 7 S.E. 905, 1888 N.C. LEXIS 128 (1888).

Entry When Sober After Entry While Intoxicated Forbidden. —

Where defendant’s evidence in a prosecution for trespass was to the effect that the prosecutrix had forbidden him the premises only when he was intoxicated and that on the occasion in question he was sober, his testimony, if the jury found it to be true, would entitle him to an acquittal, and he was entitled to an instruction on the legal effect of his evidence. State v. Keziah, 269 N.C. 681 , 153 S.E.2d 365, 1967 N.C. LEXIS 1130 (1967).

Abatement of Pending Convictions by Civil Rights Act. —

Since the Civil Rights Act of 1964 forbid discrimination in places of public accommodation and removed peaceful attempts to be served on an equal basis from the category of punishable activities, pending convictions for violation of former G.S. 14-134 were abated by passage of the act, even though the conduct involved occurred prior to its enactment. Blow v. North Carolina, 379 U.S. 684, 85 S. Ct. 635, 13 L. Ed. 2d 603, 1965 U.S. LEXIS 1895 (1965).

Evidence Not Establishing Prosecutor’s Possession. —

Where, in a prosecution under former G.S. 14-134 , the only evidence offered by the State as to title of prosecutor was oral testimony that prosecutor had purchased the property, and the only evidence of possession was that prosecutor had warned defendant to stay off the land and had entered upon the land temporarily on a single occasion to erect a barbed wire fence thereon, defendant’s motion to nonsuit should have been granted, since the evidence was insufficient to establish prosecutor’s possession of the land within the meaning of the section. State v. Baker, 231 N.C. 136 , 56 S.E.2d 424, 1949 N.C. LEXIS 501 (1949).

Indictment Had to Negative License to Enter. —

In an indictment for entering on the land of another and taking therefrom turpentine, etc., it was necessary that a “license so to enter” should be distinctly negatived as an essential part of the description of the offense. State v. Bullard, 72 N.C. 445 , 1875 N.C. LEXIS 254 (1875).

An indictment was fatally defective if it does not charge that the entry was “without a license therefor.” State v. Smith, 263 N.C. 788 , 140 S.E.2d 404, 1965 N.C. LEXIS 1370 (1965).

An indictment in which it was charged that the defendant did unlawfully enter upon the premises of the prosecutors, he, the said defendant, having been forbidden to enter on said premises, and not having a license so to enter, etc., was sufficient. State v. Whitehurst, 70 N.C. 85 , 1874 N.C. LEXIS 171 (1874).

Ownership or Possession Had to Be Alleged and the Proof Had to Correspond. —

It was necessary to allege in the warrant or bill of indictment the rightful owner or possessor of the property, and the proof had to correspond with the charge. If the rightful possession was in one other than the person named in the warrant or bill, there was a fatal variance. State v. Cooke, 246 N.C. 518 , 98 S.E.2d 885, 1957 N.C. LEXIS 475 (1957).

Amendment as to Possession Constituted Fatal Variance. —

On appeal to the superior court from conviction on a warrant charging trespass on the property of one person after being forbidden, the allowance of an amendment to charge that the property was in the possession of a different person resulted in the charge of an entirely different crime and constitutes a fatal variance. State v. Cooke, 246 N.C. 518 , 98 S.E.2d 885, 1957 N.C. LEXIS 475 (1957).

Warrant Could Be Amended. —

The superior court had power to amend, after verdict, a warrant brought by appeal of defendant charging defendant with going upon the land of another, after being forbidden to do so, so as to charge that the entry was “willful and unlawful,” and to make the charge conclude, “against the peace and dignity of the State.” State v. Smith, 103 N.C. 410 , 9 S.E. 200, 1889 N.C. LEXIS 129 (1889).

Warrant with Affidavit Attached. —

A warrant for trespass would not be quashed because it did not contain the necessary descriptive words of the illegal offense, when it referred to an “annexed affidavit” in which all the essential averments are made, as the reference to the affidavit made it a part of the warrant. State v. Winslow, 95 N.C. 649 , 1886 N.C. LEXIS 325 (1886).

Jury Instruction in Felony Breaking or Entering Prosecution. —

A jury instruction on the lesser included offenses of misdemeanor breaking or entering and first degree trespass was not required in a prosecution for felonious breaking or entering, where there was no evidence that defendant scaled the wall, attained the roof, forced a hole in it, and entered the store for some reason other than larceny, particularly as items were stolen from the premises. State v. Hamilton, 132 N.C. App. 316, 512 S.E.2d 80, 1999 N.C. App. LEXIS 111 (1999).

§ 14-159.13. Second degree trespass.

  1. Offense. —  A person commits the offense of second degree trespass if, without authorization, he enters or remains on premises of another:
    1. After he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person; or
    2. That are posted, in a manner reasonably likely to come to the attention of intruders, with notice not to enter the premises.
  2. Classification. —  Second degree trespass is a Class 3 misdemeanor.

History. 1987, c. 700, s. 1; 1993, c. 539, s. 102; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Probable Cause. —

The trial court erred by failing to grant defendant father a directed verdict on plaintiff son’s claim for malicious prosecution where defendant had probable cause to institute trespass proceedings, where the undisputed evidence showed that defendant owned the premises upon which store in question was located; that plaintiff did not enter into a written or unwritten lease with defendant to occupy the premises; that, on the day prior to his arrest for trespass, plaintiff received written notification that “effective immediately” he was no longer employed by defendant; and that the written notification requested that he “vacate” the premises and notified him that his continued presence at the store would be “considered trespassing.” Hill v. Hill, 142 N.C. App. 524, 545 S.E.2d 442, 2001 N.C. App. LEXIS 185 , rev'd, 354 N.C. 348 , 553 S.E.2d 679, 2001 N.C. LEXIS 1078 (2001).

There was no plain error in failing to instruct a jury on defendant’s right to resist an unlawful arrest because, while an attempt to take defendant to detox against defendant’s will was an arrest, an officer had objective probable cause to arrest defendant for second degree trespass when defendant remained at an apartment complex after the officer, with authority, instructed defendant to leave, even though defendant was not arrested for that offense. State v. Burwell, 256 N.C. App. 722, 808 S.E.2d 583, 2017 N.C. App. LEXIS 1024 (2017).

When defendant refused to leave the premises of the Division of Motor Vehicles office, the officer had probable cause to believe defendant committed the criminal offense of trespass. State v. Nickens, 262 N.C. App. 353, 821 S.E.2d 864, 2018 N.C. App. LEXIS 1093 (2018).

Necessity Defense Unavailable. —

The defense of “necessity” is unavailable to individuals who commit the crime of trespass in an effort to “save the lives” of fetuses from abortion. State v. Thomas, 103 N.C. App. 264, 405 S.E.2d 214, 1991 N.C. App. LEXIS 636 (1991).

The North Carolina General Assembly has made a “clear and deliberate choice” regarding the competing values at issue by choosing to make those abortions performed in accordance with the provisions of G.S. 14-45.1 lawful. Since there was no evidence at the defendants’ trial that the clinic was performing or about to perform illegal abortions, it is implicit that the “evil” which the defendants sought to avoid by blocking the clinic’s entrances was nonexistent. The nonexistence of an “evil” to avoid foreclosed the possibility of a defense based upon necessity. State v. Thomas, 103 N.C. App. 264, 405 S.E.2d 214, 1991 N.C. App. LEXIS 636 (1991).

Implied Consent Defense Unavailable. —

Even if nuclear protestors had implied consent to enter the lobby of a building occupied by an electric company, by refusing to leave after being told that they could not meet with the chief executive officer, under G.S. 14-159.13 they committed second-degree trespass. State v. Marcopolos, 154 N.C. App. 581, 572 S.E.2d 820, 2002 N.C. App. LEXIS 1518 (2002), aff'd, 357 N.C. 245 , 580 S.E.2d 691, 2003 N.C. LEXIS 601 (2003).

Denial of Motion to Dismiss Proper. —

Denial of a juvenile defendants’ motion to dismiss second-degree trespass charge under G.S. 14-159.13 was proper, because the sign marked “Girl’s Locker Room” was reasonably likely to give defendant notice that defendant was not authorized to go into the girls’ locker room, and defendant’s admission that defendant violated school rules by entering the girls’ locker room supported a reasonable inference that defendant knew defendant was not permitted in the locker room. In re S.M.S., 196 N.C. App. 170, 675 S.E.2d 44, 2009 N.C. App. LEXIS 363 (2009).

§ 14-159.14. Lesser included offenses.

The offenses created by this act shall constitute lesser included offenses of breaking or entering as provided in G.S. 14-54 and G.S. 14-56 .

History. 1987, c. 700, s. 1.

CASE NOTES

Conviction of Lesser Offense Vacated. —

First degree trespass was a lesser included offense of misdemeanor breaking and entering; hence, where defendant was erroneously convicted of both offenses, his conviction for first degree trespass had to be vacated. State v. Williams, 150 N.C. App. 497, 563 S.E.2d 616, 2002 N.C. App. LEXIS 577 (2002).

§§ 14-159.15 through 14-159.19.

Reserved for future codification purposes.

Article 22C. Cave Protection Act.

§ 14-159.20. Definitions.

The terms listed below have the following definitions as used in this Article, unless the context clearly requires a different meaning:

  1. “Cave” means any naturally occurring subterranean cavity. The word “cave” includes or is synonymous with cavern, pit, well, sinkhole, and grotto;
  2. “Commercial cave” means any cave with improved trails and lighting utilized by the owner for the purpose of exhibition to the general public as a profit or nonprofit enterprise, wherein a fee is collected for entry;
  3. “Gate” means any structure or device located to limit or prohibit access or entry to any cave;
  4. “Person” means any individual, partnership, firm, association, trust or corporation;
  5. “Speleothem” means a natural mineral formation or deposit occurring in a cave. This includes or is synonymous with stalagmites, stalactites, helectites, anthodites, gypsum flowers, needles, angel’s hair, soda straws, draperies, bacon, cave pearls, popcorn (coral), rimstone dams, columns, palettes, and flowstone. Speleothems are commonly composed of calcite, epsomite, gypsum, aragonite, celestite and other similar minerals; and
  6. “Owner” means a person who has title to land where a cave is located, including a person who owns title to a leasehold estate in such land.

History. 1987, c. 449, s. 1.

§ 14-159.21. Vandalism; penalties.

It is unlawful for any person, without express, prior, written permission of the owner, to willfully or knowingly:

  1. Break, break off, crack, carve upon, write, burn or otherwise mark upon, remove, or in any manner destroy, disturb, deface, mar or harm the surfaces of any cave or any natural material therein, including speleothems;
  2. Disturb or alter in any manner the natural condition of any cave;
  3. Break, force, tamper with or otherwise disturb a lock, gate, door or other obstruction designed to control or prevent access to any cave, even though entrance thereto may not be gained.Any person violating a provision of this section shall be guilty of a Class 3 misdemeanor.

History. 1987, c. 449, s. 1; 1993, c. 539, s. 103; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-159.22. Sale of speleothems unlawful; penalties.

It is unlawful to sell or offer for sale any speleothems in this State, or to export them for sale outside the State. A person who violates any of the provisions of this section shall be guilty of a Class 3 misdemeanor.

History. 1987, c. 449, s. 1; 1993, c. 539, s. 104; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-159.23. Limitation of liability of owners and agents.

The owner of a cave, and his agents and employees, shall not be liable for any injury to, or for the death of any person, or for any loss or damage to property, by reason of any act or omission unless it is established that the injury, death, loss, or damage occurred as a result of gross negligence, wanton conduct, or intentional wrongdoing. The limitation of liability provided by this section applies only with respect to injury, death, loss, or damage occurring within a cave, or in connection with entry into or exit from a cave, and applies only with respect to persons to whom no charge has been made for admission to the cave.

History. 1987, c. 449, s. 1.

Article 23. Trespasses to Personal Property.

§ 14-160. Willful and wanton injury to personal property; punishments.

  1. If any person shall wantonly and willfully injure the personal property of another he shall be guilty of a Class 2 misdemeanor.
  2. Notwithstanding the provisions of subsection (a), if any person shall wantonly and willfully injure the personal property of another, causing damage in an amount in excess of two hundred dollars ($200.00), he shall be guilty of a Class 1 misdemeanor.
  3. This section applies to injuries to personal property without regard to whether the property is destroyed or not.

History. 1876-7, c. 18; Code, s. 1082; 1885, c. 53; Rev., s. 3676; C.S., s. 4331; 1969, c. 1224, s. 14; 1993, c. 539, s. 105.

Cross References.

As to definition of personal property, see G.S. 12-3 , subdivision (6).

As to malicious or willful injury to hired personal property, see G.S. 14-165 .

As to prosecution for perjury based upon acquittal in former prosecution under this section, see note to G.S. 14-209 .

CASE NOTES

Elements Generally. —

Proof of four elements appears essential to sustain an adjudication of delinquency based upon violation of this section: (1) that personal property was injured; (2) that the personal property was that “of another,” i.e., someone other than the person or persons accused; (3) that the injury was inflicted “wantonly and willfully”; and (4) that the injury was inflicted by the person or persons accused. In re Meaut, 51 N.C. App. 153, 275 S.E.2d 200, 1981 N.C. App. LEXIS 2181 (1981).

This section was designed to avoid the element of malicious ill will required by the common-law crime of malicious mischief. State v. Cannady, 18 N.C. App. 213, 196 S.E.2d 617, 1973 N.C. App. LEXIS 1818 (1973).

Thus, Malice Need Not Be Charged Under This Section. —

This section was not intended to supersede the common law as to malicious mischief, and though malice must be charged at common law it is not necessary under this section. State v. Martin, 141 N.C. 832 , 53 S.E. 874, 1906 N.C. LEXIS 170 (1906).

It is not necessary to allege or prove any malice to the owner of personal property on the part of one who wantonly and willfully injures it nor is it material whether the property was destroyed or not. State v. Sneed, 121 N.C. 614 , 28 S.E. 365, 1897 N.C. LEXIS 293 (1897).

Injury Must Be Wanton and Willful. —

Destruction of personal property is not a crime. It becomes so only when the injury is wanton and willful under this section. State v. Sims, 247 N.C. 751 , 102 S.E.2d 143, 1958 N.C. LEXIS 309 (1958).

Children Throwing Rocks at a Car. —

Sufficient evidence existed to support the juvenile court’s findings that the juveniles acted “wantonly and willfully” in damaging a vehicle, when they threw rocks at it denting it and cracking the windshield, and thus support the findings of delinquency. In re McKoy, 138 N.C. App. 143, 530 S.E.2d 334, 2000 N.C. App. LEXIS 550 (2000).

Elements Differ from Discharging Firearm into Occupied Vehicle. —

The elements of willful damage to property by shooting out the automobile window are not the same as discharging a firearm into an occupied vehicle. The element of damages which must be shown in a charge of willful damage to property is not an element in a charge of discharging a firearm into an occupied vehicle. Therefore, the two charges are not the same in fact or in law. State v. Tanner, 25 N.C. App. 251, 212 S.E.2d 695, 1975 N.C. App. LEXIS 2232 (1975).

Offense May Be Committed Jointly. —

The offense under this section may be committed jointly by several persons, one doing the act, the others aiding and abetting or participating. State v. Martin, 141 N.C. 832 , 53 S.E. 874, 1906 N.C. LEXIS 170 (1906); State v. Parrish, 251 N.C. 274 , 111 S.E.2d 314, 1959 N.C. LEXIS 570 (1959).

What Constitutes Personal Property — Promissory Note. —

A promissory note or due bill being an “evidence of debt” is personal property within the meaning of this section and G.S. 12-3 , subdivision (6). State v. Sneed, 121 N.C. 614 , 28 S.E. 365, 1897 N.C. LEXIS 293 (1897).

Same — Electric Streetcar. —

An electric streetcar is personalty and not a fixture. State v. Sneed, 121 N.C. 614 , 28 S.E. 365, 1897 N.C. LEXIS 293 (1897).

Same — Fence. —

Proof of the destruction of a fence erected upon land was held to be insufficient to sustain a conviction upon an indictment charging wanton and willful injury to personal property, since a fence is a part of the realty and there was a fatal variance between allegation of ownership of the realty and proof. State v. Baker, 231 N.C. 136 , 56 S.E.2d 424, 1949 N.C. LEXIS 501 (1949).

Destruction of Whiskey by Revenue Officer. —

The mere possession of whiskey gives no title, and a revenue officer who seizes a barrel concealed on private premises, and in good faith destroys it, is not guilty of a misdemeanor under this section. North Carolina v. Vanderford, 35 F. 282, 1888 U.S. App. LEXIS 2092 (C.C.D.N.C. 1888).

Indictment Need Not Allege That Act Was Done “Unlawfully”. —

An indictment for injury to personal property under this section, which charged that the act was “wantonly and willfully” done, was not defective because it did not aver the act to have been unlawfully perpetrated. Lawful acts are not done wantonly and willfully. State v. Martin, 107 N.C. 904 , 12 S.E. 194, 1890 N.C. LEXIS 169 (1890).

But Indictment Must Allege That Injury Was Done “Willfully and Wantonly”. —

An indictment cannot be sustained under this section if there is neither an allegation nor finding that the injury was “willfully and wantonly” done. The words “unlawfully and on purpose” will not supply in their place. State v. Tweedy, 115 N.C. 704 , 20 S.E. 183, 1894 N.C. LEXIS 296 (1894).

Indictment That Failed to Allege Ownership of the Property Was Defective. —

Indictments alleging that the city transit and parking services owned the parking meters allegedly broken into by defendant, were insufficient to allege injury to personal property in violation of G.S. 14-160 and larceny because the city transit and parking services was not a natural person, and the indictments did not allege that the city transit and parking services was capable of owning property. State v. Price, 170 N.C. App. 672, 613 S.E.2d 60, 2005 N.C. App. LEXIS 1085 (2005).

In a case involving injury to personal property, an information was fatally flawed because it failed to show that each owner of property was capable of owning property; even though a state university was a body politic and corporate authorized to own property, there was no showing that the other entity was capable of such. State v. Ellis, 236 N.C. App. 602, 763 S.E.2d 574, 2014 N.C. App. LEXIS 1043 (2014), rev'd, 368 N.C. 342 , 776 S.E.2d 675, 2015 N.C. LEXIS 934 (2015).

Facial Invalidity. —

Facial invalidity should be judged based solely upon the language of the criminal pleading in question without giving any consideration to the evidence that is ultimately offered in support of the accusation contained in that pleading. State v. Ellis, 368 N.C. 342 , 776 S.E.2d 675, 2015 N.C. LEXIS 934 (2015).

Information Not Facially Invalid. —

Court of appeals erred in vacating defendant’s conviction for injury to personal property conviction because the information was not facially invalid since it adequately alleged that the property that defendant injured was that of another; in the event that a criminal pleading alleges that injury to personal property was committed against multiple entities, at least one of which is capable of owning property, that pleading is not facially invalid. State v. Ellis, 368 N.C. 342 , 776 S.E.2d 675, 2015 N.C. LEXIS 934 (2015).

Criminal pleading purporting to charge the commission of a property-related crime like injury to personal property is not facially invalid as long as that criminal pleading adequately alleges the existence of at least one victim that was capable of owning property, even if the same criminal pleading lists additional victims who were not alleged to have been capable of owning property as well. State v. Ellis, 368 N.C. 342 , 776 S.E.2d 675, 2015 N.C. LEXIS 934 (2015).

Trial court did not err by denying defendant’s motion to dismiss a charge of injury to personal property, because the charging order and the evidence at trial showed that the complainant had a special property interest in the damaged painting. The trial court did not err by ordering defendant to pay $4,425 as restitution, because the State presented sufficient evidence of the market value of the painting. State v. Redmond, 868 S.E.2d 661, 2022- NCCOA-5, 2022 N.C. App. LEXIS 13 (N.C. Ct. App. 2022).

Jury Instruction. —

Trial court did not err in instructing the jury, on defendant’s injury to personal property charge, that wires and piping connected to an air-conditioning (A/C) unit were personal property, when defendant was accused of having cut the connections of an A/C unit, loaded the A/C unit into a trailer behind defendant’s vehicle, and driven away from the mobile home of the A/C unit’s owner with the A/C unit in tow. State v. Primus, 227 N.C. App. 428, 742 S.E.2d 310, 2013 N.C. App. LEXIS 533 (2013).

Effect of Erroneous Conviction Under This Section Instead of G.S. 14-165 . —

Where there is an erroneous conviction under this section, when the indictment should have been drawn under G.S. 14-165 , et seq., the prisoner should be discharged with permission to the solicitor (now district attorney) to send another bill, if so advised. State v. Reed, 196 N.C. 357 , 145 S.E. 691, 1928 N.C. LEXIS 374 (1928).

In the absence of any proof that damage was greater than $200, defendant should be sentenced pursuant to subsection (a). State v. Tanner, 25 N.C. App. 251, 212 S.E.2d 695, 1975 N.C. App. LEXIS 2232 (1975).

Insufficient Evidence. —

State failed to meet its burden of sufficiently establishing the elements of injury to personal property causing damage more than $ 200, as the State failed to present sufficient evidence to show that defendant intended to cause injury to the personal property, and regardless of when the damage occurred, the State failed to show that defendant was the one who caused the injury. State v. Bradsher, 255 N.C. App. 625, 805 S.E.2d 191, 2017 N.C. App. LEXIS 755 (2017).

§ 14-160.1. (Effective until December 1, 2021) Alteration, destruction or removal of permanent identification marks from personal property.

  1. It shall be unlawful for any person to alter, deface, destroy or remove the permanent serial number, manufacturer’s identification plate or other permanent, distinguishing number or identification mark from any item of personal property with the intent thereby to conceal or misrepresent the identity of said item.
  2. It shall be unlawful for any person knowingly to sell, buy or be in possession of any item of personal property, not his own, on which the permanent serial number, manufacturer’s identification plate or other permanent, distinguishing number or identification mark has been altered, defaced, destroyed or removed for the purpose of concealing or misrepresenting the identity of said item.
  3. Unless the conduct is covered under some other provision of law providing greater punishment, a violation of any of the provisions of this section shall be a Class 1 misdemeanor.
  4. This section shall not in any way affect the provisions of G.S. 20-108 , 20-109(a) or 20-109(b).

History. 1977, c. 767, s. 1; 1993, c. 539, s. 106; 1994, Ex. Sess., c. 24, s. 14(c); 2009-204, s. 1.

Effect of Amendments.

Session Laws 2009-204, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, added “Unless the conduct is covered under some other provision of law providing greater punishment,” at the beginning of subsection (c).

§ 14-160.1. Alteration, destruction or removal of permanent identification marks from personal property.

  1. It shall be unlawful for any person to alter, deface, destroy or remove the permanent serial number, manufacturer’s identification plate or other permanent, distinguishing number or identification mark from any item of personal property with the intent thereby to conceal or misrepresent the identity of said item.
  2. It shall be unlawful for any person knowingly to sell, buy or be in possession of any item of personal property, not his own, on which the permanent serial number, manufacturer’s identification plate or other permanent, distinguishing number or identification mark has been altered, defaced, destroyed or removed for the purpose of concealing or misrepresenting the identity of said item.
  3. Unless the conduct is covered under some other provision of law providing greater punishment, a violation of any of the provisions of this section shall be (i) a Class 1 misdemeanor if the personal property was valued at not more than one thousand dollars ($1,000) at the time of the offense or (ii) a Class H felony if the personal property was valued at more than one thousand dollars ($1,000) at the time of the offense.
  4. This section shall not in any way affect the provisions of G.S. 20-108 , 20-109(a) or 20-109(b).

History. 1977, c. 767, s. 1; 1993, c. 539, s. 106; 1994, Ex. Sess., c. 24, s. 14(c); 2009-204, s. 1; 2021-36, s. 1.

Editor’s Note.

Session Laws 2021-36, s. 3, made the amendment of subsection (c) of this section by Session Laws 2021-36, s. 1, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2009-204, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, added “Unless the conduct is covered under some other provision of law providing greater punishment,” at the beginning of subsection (c).

Session Laws 2021-36, s. 1, substituted “shall be (i) a Class 1 misdemeanor if the personal property was valued at not more than one thousand dollars ($1,000) at the time of the offense or (ii) a Class H felony if the personal property was valued at more than one thousand dollars ($1,000) at the time of the offense” for “shall be a Class 1 misdemeanor” at the end of subsection (c). For effective date and applicability, see editor’s note.

§ 14-160.2. Alteration, destruction, or removal of serial number from firearm; possession of firearm with serial number removed.

  1. It shall be unlawful for any person to alter, deface, destroy, or remove the permanent serial number, manufacturer’s identification plate, or other permanent distinguishing number or identification mark from any firearm with the intent thereby to conceal or misrepresent the identity of the firearm.
  2. It shall be unlawful for any person knowingly to sell, buy, or be in possession of any firearm on which the permanent serial number, manufacturer’s identification plate, or other permanent distinguishing number or identification mark has been altered, defaced, destroyed, or removed for the purpose of concealing or misrepresenting the identity of the firearm.
  3. A violation of any of the provisions of this section shall be a Class H felony.

History. 2009-204, s. 2.

§ 14-160.3. Injuring, destroying, removing, vandalizing, or tampering with firefighting or emergency medical services machinery or equipment.

A person is guilty of a Class 1 misdemeanor if the person intentionally injures, destroys, removes, vandalizes, or tampers with or otherwise intentionally interferes with the operation of any of the following:

  1. Any machinery, apparatus, or equipment used by a fire department or the North Carolina Forest Services for fighting fires, protecting property, or protecting human life.
  2. Any ambulance as defined in G.S. 131E-155 or rescue squad emergency medical services vehicle or any equipment or apparatus used for emergency medical services as defined in G.S. 131E-155 .

History. 2017-89, s. 1.

Editor’s Note.

Session Laws 2017-89, s. 2, made this section effective December 1, 2017, and applicable to offenses committed on or after that date.

§ 14-161. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(7).

§ 14-162. Removing boats.

If any person shall loose, unmoor, or turn adrift from any landing or other place wherever the same shall be, any boat, canoe, or other marine vessel, or if any person shall direct the same to be done without the consent of the owner, or the person having the lawful custody or possession of such vessel, he shall be guilty of a Class 2 misdemeanor. The owner may also have his action for such injury. The penalties aforesaid shall not extend to any person who shall press any such property by public authority.

History. R.C., c. 14, ss. 1, 3; Code, s. 2288; 1889, c. 378; Rev., s. 3544; C.S., s. 4333; 1977, c. 729; 1993, c. 539, s. 107; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-163. Poisoning livestock.

If any person shall willfully and unlawfully poison any horse, mule, hog, sheep or other livestock, the property of another, such person shall be punished as a Class I felon.

History. 1898-9, c. 253; Code, s. 1003; Rev., s. 3313; C.S., s. 4334; 1969, c. 1224, s. 3; 1973, c. 1388; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

As to double damages for injury to agricultural commodities or production systems, see G.S. 1-539-2B.

As to molesting or injuring livestock generally, see G.S. 14-366 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-163.1. Assaulting a law enforcement agency animal, an assistance animal, or a search and rescue animal.

  1. The following definitions apply in this section:
    1. Assistance animal. — An animal that is trained and may be used to assist a “person with a disability” as defined in G.S. 168A-3 . The term “assistance animal” is not limited to a dog and includes any animal trained to assist a person with a disability as provided in Article 1 of Chapter 168 of the General Statutes.
    2. Law enforcement agency animal. — An animal that is trained and may be used to assist a law enforcement officer in the performance of the officer’s official duties.
    3. Harm. — Any injury, illness, or other physiological impairment; or any behavioral impairment that impedes or interferes with duties performed by a law enforcement agency animal or an assistance animal. (3a) Search and rescue animal. — An animal that is trained and may be used to assist in a search and rescue operation.
    4. Serious harm. — Harm that does any of the following:
      1. Creates a substantial risk of death.
      2. Causes maiming or causes substantial loss or impairment of bodily function.
      3. Causes acute pain of a duration that results in substantial suffering.
      4. Requires retraining of the law enforcement agency animal or assistance animal.
      5. Requires retirement of the law enforcement agency animal or assistance animal from performing duties.

        (a1) Any person who knows or has reason to know that an animal is a law enforcement agency animal, an assistance animal, or a search and rescue animal and who willfully kills the animal is guilty of a Class H felony.

  2. Any person who knows or has reason to know that an animal is a law enforcement agency animal, an assistance animal, or a search and rescue animal and who willfully causes or attempts to cause serious harm to the animal is guilty of a Class I felony.
  3. Unless the conduct is covered under some other provision of law providing greater punishment, any person who knows or has reason to know that an animal is a law enforcement agency animal, an assistance animal, or a search and rescue animal and who willfully causes or attempts to cause harm to the animal is guilty of a Class 1 misdemeanor.
  4. Unless the conduct is covered under some other provision of law providing greater punishment, any person who knows or has reason to know that an animal is a law enforcement agency animal, an assistance animal, or a search and rescue animal and who willfully taunts, teases, harasses, delays, obstructs, or attempts to delay or obstruct the animal in the performance of its duty as a law enforcement agency animal, an assistance animal, or a search and rescue animal is guilty of a Class 2 misdemeanor.

    (d1) A defendant convicted of a violation of this section shall be ordered to make restitution to the person with a disability, or to a person, group, or law enforcement agency who owns or is responsible for the care of the law enforcement agency animal or search and rescue animal for any of the following as appropriate:

    1. Veterinary, medical care, and boarding expenses for the law enforcement agency animal, the assistance animal, or the search and rescue animal.
    2. Medical expenses for the person with the disability relating to the harm inflicted upon the assistance animal.
    3. Replacement and training or retraining expenses for the law enforcement agency animal, the assistance animal, or the search and rescue animal.
    4. Expenses incurred to provide temporary mobility services to the person with a disability.
    5. Wages or income lost while the person with a disability is with the assistance animal receiving training or retraining.
    6. The salary of the law enforcement agency animal handler as a result of the lost services to the agency during the time the handler is with the law enforcement agency animal receiving training or retraining.

      (6a) The salary of the search and rescue animal handler as a result of the search and rescue services lost during the time the handler is with the search and rescue animal receiving training or retraining.

    7. Any other expense reasonably incurred as a result of the offense.
  5. This section shall not apply to a licensed veterinarian whose conduct is in accordance with Article 11 of Chapter 90 of the General Statutes.
  6. Self-defense is an affirmative defense to a violation of this section.
  7. Nothing in this section shall affect any civil remedies available for violation of this section.

History. 1983, c. 646, s. 1; 1993, c. 539, s. 108; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 258, s. 1; 2001-411, s. 1; 2005-184, s. 1; 2007-80, s. 1; 2009-460, s. 1.

Effect of Amendments.

Session Laws 2005-184, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, in subdivision (a)(1), substituted “person with a disability” for “handicapped person” twice, and substituted “G.S. 168A-3” for “G.S. 168-1”; in subdivision (a)(3), deleted “Physical” preceding “Harm”, and added “or any behavioral impairment that impedes or interferes with duties performed by a law enforcement agency animal or an assistance animal”; in subdivision (a)(4), deleted “physical” preceding “harm” twice, and added sub-subdivisions (a)(4)d. and (a)(4)e.; in subsections (b) and (c), deleted “physical” preceding “harm”; and added subsections (d1) and (g).

Session Laws 2009-460, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, substituted “animal, an assistance animal, or a search and rescue animal” for “animal or an assistance animal” throughout the section; added subdivision (a)(3a); in subdivisions (d1)(1) and (d1)(3), substituted “law enforcement agency animal, the assistance animal, or the search and rescue animal” for “assistance animal or law enforcement animal”; and added subdivision (d1)(6a).

§ 14-164. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(8).

Article 24. Vehicles and Draft Animals — Protection of Bailor Against Acts of Bailee.

§ 14-165. Malicious or willful injury to hired personal property.

Any person who shall rent or hire from any person, firm or corporation, any horse, mule or like animal, or any buggy, wagon, truck, automobile, or other like vehicle, aircraft, motor, trailer, appliance, equipment, tool, or other thing of value, who shall maliciously or willfully injure or damage the same by in any way using or driving the same in violation of any statute of the State of North Carolina, or who shall permit any other person so to do, shall be guilty of a Class 2 misdemeanor.

History. 1927, c. 61, s. 1; 1965, c. 1073, s. 1; 1993, c. 539, s. 109; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to willful and wanton injury to personal property, see G.S. 14-160 .

§ 14-166. Subletting of hired property.

Any person who shall rent or hire, any horse, mule, or other like animal, or any buggy, wagon, truck, automobile, or other like vehicle, aircraft, motor, trailer, appliance, equipment, tool, or other thing of value, who shall, without the permission of the person, firm or corporation from whom such property is rented or hired, sublet or rent the same to any other person, firm or corporation, shall be guilty of a Class 2 misdemeanor.

History. 1927, c. 61, s. 2; 1965, c. 1073, s. 2; 1969, c. 1224, s. 15; 1993, c. 539, s. 110; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-167. Failure to return hired property.

Any person who shall rent or hire, any horse, mule or other like animal, or any buggy, wagon, truck, automobile, or other vehicle, aircraft, motor, trailer, appliance, equipment, tool, or other thing of value, and who shall willfully fail to return the same to the possession of the person, firm or corporation from whom such property has been rented or hired at the expiration of the time for which such property has been rented or hired, shall be guilty of a Class 3 misdemeanor.

If the value at the time of the rental or hiring of the truck, automobile, or other motor vehicle that is not returned is in excess of four thousand dollars ($4,000), the person who rented or hired it and failed to return it shall be guilty of a Class H felony.

History. 1927, c. 61, s. 3; 1965, c. 1073, s. 3; 1969, c. 1224, s. 15; 1993, c. 539, s. 111; 1994, Ex. Sess., c. 24, s. 14(c); 2005-182, s. 1; 2013-360, s. 18B.14(c).

Effect of Amendments.

Session Laws 2005-182, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, added the second paragraph.

Session Laws 2013-360, s. 18B.14(c), effective December 1, 2013, substituted “Class 3 misdemeanor” for “Class 2 misdemeanor” in the first paragraph. For effective date and applicability, see Editor’s note.

§ 14-168. Hiring with intent to defraud.

Any person who shall, with intent to cheat and defraud the owner thereof of the rental price therefor, hire or rent any horse or mule or any other like animal, or any buggy, wagon, truck, automobile or other like vehicle, aircraft, motor, trailer, appliance, equipment, tool, or other thing of value, or who shall obtain the possession of the same by false and fraudulent statements made with intent to deceive, which are calculated to deceive, and which do deceive, shall be guilty of a Class 2 misdemeanor.

History. 1927, c. 61, s. 4; 1965, c. 1073, s. 4; 1969, c. 1224, s. 15; 1993, c. 539, s. 112; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-168.1. Conversion by bailee, lessee, tenant or attorney-in-fact.

Every person entrusted with any property as bailee, lessee, tenant or lodger, or with any power of attorney for the sale or transfer thereof, who fraudulently converts the same, or the proceeds thereof, to his own use, or secretes it with a fraudulent intent to convert it to his own use, shall be guilty of a Class 3 misdemeanor.

If, however, the value of the property converted or secreted, or the proceeds thereof, is in excess of four hundred dollars ($400.00), every person so converting or secreting it is guilty of a Class H felony. In all cases of doubt the jury shall, in the verdict, fix the value of the property converted or secreted.

History. 1965, c. 1073, s. 5; 1979, c. 468; 1979, 2nd Sess., c. 1316, s. 13; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 113; 1994, Ex. Sess., c. 24, s. 14(c); 2013-360, s. 18B.14(d).

Effect of Amendments.

Session Laws 2013-360, s. 18B.14(d), effective December 1, 2013, substituted “Class 3 misdemeanor” for “Class 1 misdemeanor” in the first paragraph. For applicability, see Editor’s note.

CASE NOTES

Embezzlement and fraudulent conversion are not necessarily and strictly synonymous. State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

Section 14-90 Compared. —

This section is more limited in its scope with regard to bailees than G.S. 14-90 ; it appears to embrace a bailee “who fraudulently converts the same” to his own use, while G.S. 14-90 covers the bailee who “shall embezzle or fraudulently or knowingly and willfully misapply or convert to his own use.” State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

There is no irreconcilable conflict between G.S. 14-90 and this section as they relate to bailees. State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

This section does not remove bailees from G.S. 14-90 or make embezzlement by a bailee a misdemeanor. State v. Hutson, 10 N.C. App. 653, 179 S.E.2d 858, 1971 N.C. App. LEXIS 1690 (1971).

Previous Ownership by Named Victim an Essential Element of Crime. —

An essential element of the crime of conversion by a bailee is the intent to convert or the act of conversion, which by definition requires proof that someone other than the defendant owned the relevant property, so that the State is required to prove ownership, and a proper indictment must identify as the victim a legal entity capable of owning property. State v. Woody, 132 N.C. App. 788, 513 S.E.2d 801, 1999 N.C. App. LEXIS 281 (1999).

Insufficient Evidence of Ownership. —

In a case in which defendant was convicted of felony conversion, the trial court erred by denying defendant’s motion to dismiss as the State did not produce sufficient evidence that the alleged victim owned the vehicle because the alleged victim never received title to the vehicle; without title to the vehicle, the alleged victim did not meet the definition of owner; a lien encumbered the vehicle that the alleged victim could not remove; and ownership was essential to establishing the elements of felony conversion. State v. Falana, 254 N.C. App. 329, 802 S.E.2d 582, 2017 N.C. App. LEXIS 492 (2017).

Substantial Evidence Supported Convictions. —

Defendant’s G.S. 14-168.1 convictions were supported by substantial evidence of defendant’s intent to defraud a victim where: (1) defendant and the victim had an agreement where the victim, the bailor, would give defendant, the bailee, $500 to pay the sellers to obtain ownership of the land; (2) although defendant took the victim’s money, he did not use it for its intended purpose of paying the sellers; (3) seller one testified that defendant had not made a payment since July 2008, and the victim testified he had given defendant money in subsequent months; (4) defendant did not support his claim that his intent to defraud could not be based on his contract with the victim because it was unenforceable under G.S. 22-2 ; and (5) there was no prohibition on using unenforceable contracts to establish substantial evidence to support a conversion charge. State v. Minton, 223 N.C. App. 319, 734 S.E.2d 608, 2012 N.C. App. LEXIS 1249 (2012).

Nonfulfillment of Contractual Obligation. —

Defendant’s 10 G.S. 14-168.1 convictions were proper as defendant’s claim that since G.S. 14-100(b) specifically stated that evidence of nonfulfillment of a contract obligation, standing alone, did not establish the requisite intent to sustain an obtaining property by false pretenses charge, nonfulfillment of a contract obligation was not enough to establish the requisite intent for a conversion charge was rejected because the North Carolina legislature specifically included that limitation in the obtaining property by false pretenses statute, but not in the conversion statute; G.S. 14-168.1 could not be rewritten as under N.C. Const. Art. I, § 6, only the legislature had the power to make law. State v. Minton, 223 N.C. App. 319, 734 S.E.2d 608, 2012 N.C. App. LEXIS 1249 (2012).

§ 14-168.2. Definitions.

For the purposes of this Article, the terms “rent,” “hire” and “lease” are used to designate the letting for hire of any horse, mule or other like animal, or any buggy, wagon, truck, automobile, aircraft, motor, trailer, appliance, equipment, tool, or other thing of value by lease, bailment, or rental agreement.

History. 1965, c. 1073, s. 5.

§ 14-168.3. Prima facie evidence of intent to convert property.

It shall be prima facie evidence of intent to commit a crime as set forth in G.S. 14-167 , 14-168, and 14-168.1 with respect to any property other than a truck, automobile, or other motor vehicle when one who has, by written instrument, leased or rented the personal property of another:

  1. Failed or refused to return such property to its owner after the lease, bailment, or rental agreement has expired,
    1. Within 10 days, and
    2. Within 48 hours after written demand for return thereof is personally served or given by registered mail delivered to the last known address provided in such lease or rental agreement, or
  2. When the leasing or rental of such personal property is obtained by presentation of identification to the lessor or rentor thereof which is false, fictitious, or knowingly not current as to name, address, place of employment, or other identification.

History. 1965, c. 1118; 2005-182, s. 2.

Effect of Amendments.

Session Laws 2005-182, s. 2, effective December 1, 2005, and applicable to offenses committed on or after that date, inserted “with respect to any property other than a truck, automobile, or other motor vehicle” in the introductory paragraph.

§ 14-168.4. Failing to return rented property on which there is purchase option.

  1. It shall be a Class 3 misdemeanor for any person to fail to return rented property with intent to defeat the rights of the owner, which is rented pursuant to a written rental agreement in which there is an option to purchase the property, after the date of termination provided in the agreement has occurred or, if the termination date is the occurrence of a specified event, then that such event has in fact occurred.
  2. Intent to commit the crime set forth in subsection (a) may be presumed from the following evidence:
    1. Evidence that the defendant has disposed of the property, or has encumbered the property by allowing a security interest to be placed on the property or by delivering the property to a pawnbroker; or
    2. Evidence that the defendant has refused to deliver the property to the sheriff or other officer charged with the execution of process directed to him for its seizure, after a judgment for possession of the property or a claim and delivery order for the property has been issued; or
    3. Evidence that the defendant has moved the rented property out of state and has failed to notify the owner of the new location of the property.

      However, this presumption may be rebutted by evidence from the defendant that he has no intent to defeat the rights of the owner of the property.

  3. Violations of this Article for failure to return rented property which is rented pursuant to a written rental agreement in which there is an option to purchase shall be prosecuted only under this section.

History. 1987 (Reg. Sess., 1988), c. 1065, s. 3; 1993, c. 539, s. 114; 1994, Ex. Sess., c. 24, s. 14(c); 2013-360, s. 18B.14(e).

Effect of Amendments.

Session Laws 2013-360, s. 18B.14(e), effective December 1, 2013, substituted “Class 3 misdemeanor” for “Class 2 misdemeanor” in subsection (a). For applicability, see Editor’s note.

§ 14-168.5. Prima facie evidence of intent to convert a truck, automobile, or other motor vehicle; demand for return or payment.

  1. Prima Facie Evidence. —  It shall be prima facie evidence of intent to commit a crime as set forth in G.S. 14-167 , 14-168, and 14-168.1 when one who has, by written instrument, leased or rented a truck, automobile, or other motor vehicle owned by another:
    1. Failed or refused to return the vehicle to the lessor or rentor at the place specified after the lease, bailment, or rental agreement has expired, within 72 hours after written demand for the vehicle is made in accordance with subsection (b) of this section; or
    2. When the leasing or rental of the vehicle is obtained by presentation of identification to the lessor or rentor of the vehicle which is false, fictitious, or knowingly not current as to name, address, place of employment, or other identification.
  2. Method of Demand; When Effective. —
    1. Demand for return of a leased or rented truck, automobile, or other motor vehicle may be made in one of three ways:
      1. By personal service in accordance with Rule 4(j) of the North Carolina Rules of Civil Procedure.
      2. By certified mail, return receipt requested, addressed to the last known address provided in the lease, bailment, or rental agreement.
      3. By depositing the demand with a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) addressed to the last known address provided in the lease, bailment, or rental agreement.
    2. Demand is effective upon hand delivery to the last known address, three days after deposit by mail (even if the demand is returned as undeliverable), or upon delivery by a designated delivery service to the last known address.

History. 2005-182, s. 3.

§ 14-169. Violation made misdemeanor.

Except as otherwise provided, any person violating the provisions of this Article shall be guilty of a Class 1 misdemeanor.

History. 1927, c. 61, s. 5; 1929, c. 38, s. 1; 1969, c. 1224, s. 15; 1993, c. 539, s. 115; 1994, Ex. Sess., c. 24, s. 14(c).

Article 25. Regulating the Leasing of Storage Batteries. [Repealed]

§§ 14-170 through 14-176. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(4)-(10).

Subchapter VII. Offenses Against Public Morality and Decency.

Article 26. Offenses Against Public Morality and Decency.

§ 14-177. Crime against nature.

If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.

History. 25 Hen. VIII, c. 6; 5 Eliz., c. 17; R.C., c. 34, s. 6; 1868-9, c. 167, s. 6; Code, s. 1010; Rev., s. 3349; C.S., s. 4336; 1965, c. 621, s. 4; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1191; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article on the law of crime against nature with particular regard to this section, see 32 N.C.L. Rev. 312 (1954).

For survey of 1974 case law on this section, see 53 N.C.L. Rev. 1037 (1975).

For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

For note, “The Squeal Rule: Statutory Resolution and Constitutional Implications — Burdening the Minor’s Right of Privacy,” see 6 Duke L.J. 1325 (1984).

For note, “The Effect on the Child of a Custodial Parent’s Involvement in an Intimate Same-Sex Relationship,” see 10 Campbell L. Rev. 131 (1996).

For note, “The Irrational Use of Rational Basis Review in Lawrence v. Texas: Implications for Our Society,” see 26 Campbell L. Rev. 21 (2004).

For comment, “The Road Not Taken: Using the Eighth Amendment to Strike Down Criminal Punishment for Engaging in Consensual Sexual Acts,” see 82 N.C.L. Rev. 723 (2004).

For article, “Transforming Teenagers into Oral Sex Felons: The Persistence of the Crime Against Nature After Lawrence v. Texas,” see 43 Wake Forest L. Rev. 155 (2008).

For article, “Individual Sovereignty, Freer Sex, and Diminished Privacy: How an Informed and Realistic Modern Sexual Morality Provides Salvation from Unjustified Shame,” see 8 Elon L. Rev. 245 (2016).

For article, “If Loving You is Wrong….Can First Amendment Protection Be Right? Alienation of Affection, Criminal Conversation, and the Right to Free Speech,” see 38 N.C. Cent. L. Rev. 93 (2016).

For article, “Criminalizing Buyers under Child Sex Trafficking Laws as a Critical Protection for Child Victims,” see 52 Wake Forest L. Rev. 435 (2017).

For article, “Sexual Abuse and Statistic Misuse: An Analysis of the Static-99R,” see 98 N. C.L. Rev. 933 (2020).

CASE NOTES

This section is constitutional. State v. Enslin, 25 N.C. App. 662, 214 S.E.2d 318, 1975 N.C. App. LEXIS 2359 (1975), cert. denied, 288 N.C. 245 , 217 S.E.2d 669, 1975 N.C. LEXIS 936 (1975), cert. denied, 425 U.S. 903, 96 S. Ct. 1492, 47 L. Ed. 2d 753, 1976 U.S. LEXIS 790 (1976). See State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980); State v. Singleton, 85 N.C. App. 123, 354 S.E.2d 259, 1987 N.C. App. LEXIS 2561 (1987).

This section is constitutional, and a defendant is not entitled to quash the bill of indictment against him on grounds that it is unconstitutional because of its vagueness and overbreadth. State v. Moles, 17 N.C. App. 664, 195 S.E.2d 352, 1973 N.C. App. LEXIS 1436 (1973); State v. Crouse, 22 N.C. App. 47, 205 S.E.2d 361, 1974 N.C. App. LEXIS 2232 (1974).

This section is not unconstitutionally vague. State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843, 1979 N.C. App. LEXIS 2277 , cert. denied, 298 N.C. 303 , 259 S.E.2d 304, 1979 N.C. LEXIS 1616 (1979).

Persons of ordinary intelligence would conclude a fellatio between a man and a woman would be classified as a crime against nature and forbidden by this section. This keeps it from being unconstitutionally vague. State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843, 1979 N.C. App. LEXIS 2277 , cert. denied, 298 N.C. 303 , 259 S.E.2d 304, 1979 N.C. LEXIS 1616 (1979).

The right of privacy does not prohibit the prosecution of unmarried persons for consensual fellatio done in private. State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843, 1979 N.C. App. LEXIS 2277 , cert. denied, 298 N.C. 303 , 259 S.E.2d 304, 1979 N.C. LEXIS 1616 (1979).

The State, consistent with the U.S. Const., Amend. XIV, can classify unmarried persons so as to prohibit fellatio between males and females without forbidding the same acts between married couples. State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843, 1979 N.C. App. LEXIS 2277 , cert. denied, 298 N.C. 303 , 259 S.E.2d 304, 1979 N.C. LEXIS 1616 (1979).

No authority prohibits a State on constitutional grounds from punishing under a statute such as this section individuals who commit the proscribed act in a public restroom. State v. Jarrell, 24 N.C. App. 610, 211 S.E.2d 837, 1975 N.C. App. LEXIS 2452 , cert. denied, 286 N.C. 725 , 213 S.E.2d 724, 1975 N.C. LEXIS 1289 (1975).

Since the decision of the United States Supreme Court in Lawrence v. Texas expressly excluded prostitution and public conduct from its holding, North Carolina was allowed to criminalize the solicitation of a sexual act it deemed a crime against nature; thus, the crime of solicitation of a crime against nature, G.S. 14-177 , was not unconstitutional. State v. Pope, 168 N.C. App. 592, 608 S.E.2d 114, 2005 N.C. App. LEXIS 344 (2005).

Although G.S. 14-177 is not unconstitutional on its face, it was unconstitutional as applied to defendant’s conviction since a minor was not involved, the conduct did not involve non-consensual or coercive sexual acts, the conduct did not occur in a public place, and the conduct did not involve prostitution or solicitation. State v. Whiteley, 172 N.C. App. 772, 616 S.E.2d 576, 2005 N.C. App. LEXIS 1795 (2005).

Because the crime against nature statute, G.S. 14-177 , did not run afoul of the due process clause of the Fourteenth Amendment to the U.S. Constitution and the fact that appellant, a juvenile, was 14 and the girl was 12, did not exempt appellant from the statute, he was properly adjudicated delinquent based upon two acts of fellatio. In re R.L.C., 361 N.C. 287 , 643 S.E.2d 920, 2007 N.C. LEXIS 417 (2007).

Double Jeopardy. —

Defendant’s conviction for crime against nature in violation of G.S. 14-177 was vacated because crime against nature was a lesser-included offense of second-degree sexual offense, G.S. 14-27.5 , and entry of judgment on both convictions subjected defendant to unconstitutional double jeopardy; as to both crimes, the trial court instructed the jury that to return a guilty verdict, it had to find that defendant (1) committed the sex act of fellatio with the victim, an adult who was mentally disabled or incapacitated or physically helpless so as to be incapable of properly consenting. State v. Hunt, 221 N.C. App. 489, 728 S.E.2d 409, 2012 N.C. App. LEXIS 875 (2012), aff'd in part, 367 N.C. 700 , 766 S.E.2d 288, 2014 N.C. LEXIS 945 (2014).

Purpose. —

The legislative intent and purpose of this section is to punish persons who undertake by unnatural and indecent methods to gratify a perverted and depraved sexual instinct which is an offense against public decency and morality. State v. Stubbs, 266 N.C. 295 , 145 S.E.2d 899, 1966 N.C. LEXIS 1328 (1966); State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980).

Definition. —

The crime against nature is sexual intercourse contrary to the order of nature. It includes acts with animals and acts between humans per anum and per os. State v. Chance, 3 N.C. App. 459, 165 S.E.2d 31, 1969 N.C. App. LEXIS 1600 (1969); State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971); State v. Wright, 27 N.C. App. 263, 218 S.E.2d 511, 1975 N.C. App. LEXIS 1813 , cert. denied, 288 N.C. 733 , 220 S.E.2d 622, 1975 N.C. LEXIS 1057 (1975).

Conduct declared criminal by this section is sexual intercourse contrary to the order of nature. State v. Whittemore, 255 N.C. 583 , 122 S.E.2d 396, 1961 N.C. LEXIS 653 (1961); State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965).

Scope of Section. —

This section includes all kindred acts of bestial character whereby degraded and perverted sexual desires are sought to be gratified. State v. Griffin, 175 N.C. 767 , 94 S.E. 678, 1917 N.C. LEXIS 454 (1917); State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965); State v. Wright, 27 N.C. App. 263, 218 S.E.2d 511, 1975 N.C. App. LEXIS 1813 , cert. denied, 288 N.C. 733 , 220 S.E.2d 622, 1975 N.C. LEXIS 1057 (1975).

This section includes unnatural intercourse between male and male. State v. Fenner, 166 N.C. 247 , 80 S.E. 970, 1914 N.C. LEXIS 389 (1914).

This section includes acts with animals and acts between humans per anum and per os. State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965); State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

This section is broad enough to include in the crime against nature other forms of the offense than sodomy and buggery. State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965); State v. Wright, 27 N.C. App. 263, 218 S.E.2d 511, 1975 N.C. App. LEXIS 1813 , cert. denied, 288 N.C. 733 , 220 S.E.2d 622, 1975 N.C. LEXIS 1057 (1975).

The crime against nature includes a consensual fellatio between a man and a woman. State v. Poe, 40 N.C. App. 385, 252 S.E.2d 843, 1979 N.C. App. LEXIS 2277 , cert. denied, 298 N.C. 303 , 259 S.E.2d 304, 1979 N.C. LEXIS 1616 (1979).

In this jurisdiction crime against nature embraces sodomy, buggery and bestiality as those offenses were known and defined at common law. State v. O'Keefe, 263 N.C. 53 , 138 S.E.2d 767, 1964 N.C. LEXIS 751 (1964), cert. denied, 380 U.S. 985, 85 S. Ct. 1355, 14 L. Ed. 2d 277, 1965 U.S. LEXIS 1448 (1965); State v. Stokes, 1 N.C. App. 245, 161 S.E.2d 53, 1968 N.C. App. LEXIS 1054 , rev'd, 274 N.C. 409 , 163 S.E.2d 770, 1968 N.C. LEXIS 794 (1968).

Though penetration by or of a sexual organ is an essential element of the crime, the crime against nature is not limited to penetration by the male sexual organ. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

This section condemns crimes against nature whether committed against adults or children. State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971).

This section and § 14-202.1 are complementary rather than repugnant or inconsistent. Section 14-202.1 condemns other acts against children than unnatural sexual acts. The two statutes can be reconciled, and both declared to be operative without repugnance. State v. Chance, 3 N.C. App. 459, 165 S.E.2d 31, 1969 N.C. App. LEXIS 1600 (1969); State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971).

Section 14-202.1 is not repugnant to this section so as to work a repeal in part of this section, intentionally or otherwise. The two sections are complementary rather than repugnant or inconsistent. State v. Lance, 244 N.C. 455 , 94 S.E.2d 335, 1956 N.C. LEXIS 429 (1956).

Section 14-202.1 supplements this section. State v. Whittemore, 255 N.C. 583 , 122 S.E.2d 396, 1961 N.C. LEXIS 653 (1961).

This section and G.S. 14-202.1 can be reconciled and both declared to be operative without repugnance. State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971).

And G.S. 14-202.1 Is Not a Lesser Included Offense of the Crime Against Nature. —

Because the two offenses are separate and distinct and the constituent elements are not identical, a violation of G.S. 14-202.1 is not a lesser included offense of the crime against nature described in this section. State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971).

There was no merit to defendant’s contention that the trial court lacked jurisdiction to try him under the indecent liberties with children statute, G.S. 14-202.1 , because the criminal act he committed was a crime against nature prohibited by this section, since the crime against nature statute and the indecent liberties with children statute are complementary but not mutually exclusive. State v. Elam, 302 N.C. 157 , 273 S.E.2d 661, 1981 N.C. LEXIS 1031 (1981).

Neither the first-degree sexual offense statute nor the crime against nature statute contains a sexual purpose requirement; because the North Carolina General Assembly included this requirement in the indecent liberties statute, but omitted it from these other sex offense statutes, it was concluded that the omission was intentional. Therefore, an argument by appellant, a juvenile, that the State failed to present evidence of “sexual purpose” with respect to the first-degree sexual offense and crime against nature charges was meritless. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

Sexual Preference. —

Neither by its terms nor by judicial gloss proscribes sexual preference or the status of being homosexual; in order to violate the statute, a person must commit one of the specific acts coming within the purview of the statute. Donovan v. Fiumara, 114 N.C. App. 524, 442 S.E.2d 572, 1994 N.C. App. LEXIS 433 (1994).

A simple statement descriptive of an individual’s alleged sexual orientation does not as a matter of law impute to that individual commission of a crime. Donovan v. Fiumara, 114 N.C. App. 524, 442 S.E.2d 572, 1994 N.C. App. LEXIS 433 (1994).

Referring to a person as “gay” or “bisexual” is not tantamount to charging that individual with the commission of a crime. Donovan v. Fiumara, 114 N.C. App. 524, 442 S.E.2d 572, 1994 N.C. App. LEXIS 433 (1994).

Crime against nature and taking indecent liberties with a child are separate and distinct offenses. State v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920, 1988 N.C. App. LEXIS 283 , cert. denied, 323 N.C. 177 , 373 S.E.2d 118, 1988 N.C. LEXIS 549 (1988).

Sentencing of defendant for both crime against nature and sexual activity by a substitute parent involving the same victim did not violate the merger doctrine or subject him to double jeopardy. State v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920, 1988 N.C. App. LEXIS 283 , cert. denied, 323 N.C. 177 , 373 S.E.2d 118, 1988 N.C. LEXIS 549 (1988).

Proof of penetration of or by the sexual organ is essential to conviction under this section. State v. Whittemore, 255 N.C. 583 , 122 S.E.2d 396, 1961 N.C. LEXIS 653 (1961); State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965); State v. Chance, 3 N.C. App. 459, 165 S.E.2d 31, 1969 N.C. App. LEXIS 1600 (1969); State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971); State v. Wright, 27 N.C. App. 263, 218 S.E.2d 511, 1975 N.C. App. LEXIS 1813 , cert. denied, 288 N.C. 733 , 220 S.E.2d 622, 1975 N.C. LEXIS 1057 (1975); State v. Adams, 299 N.C. 699 , 264 S.E.2d 46, 1980 N.C. LEXIS 982 (1980).

Where evidence showed that the defendant penetrated the victim’s female sexual organ with his tongue, there was sufficient evidence to overrule defendant’s motion for nonsuit. State v. Joyner, 295 N.C. 55 , 243 S.E.2d 367, 1978 N.C. LEXIS 945 (1978).

Penetration Not Shown. —

Penetration was a required element of the offense of crime against nature, but it was not a required element of first-degree sexual offense; therefore, adjudications of delinquency could not have been upheld for crime against nature offenses where there was no evidence of penetration. The victim stated that he was asked to “lick” the penis of appellant, a juvenile; an inference of penetration could not have been drawn because it conflicted with the victim’s direct testimony. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

Crime against nature is not a lesser included offense of first- or second-degree sexual offense. State v. Warren, 309 N.C. 224 , 306 S.E.2d 446, 1983 N.C. LEXIS 1387 (1983). See also, State v. Barrett, 307 N.C. 126 , 302 S.E.2d 632, 1982 N.C. LEXIS 1835 (1982).

Defendant’s conviction of both the crime against nature and second-degree sexual offense was not error, because the crime against nature proscribed by this section requires penetration of or by the sexual organ, while second-degree sexual offense does not. State v. Bailey, 80 N.C. App. 678, 343 S.E.2d 434, 1986 N.C. App. LEXIS 2240 , writ denied, 317 N.C. 336 , 346 S.E.2d 503, 1986 N.C. LEXIS 2322 (1986).

Assault with intent to commit rape and committing a crime against nature are not essentially the same offense since the elements of each offense are distinct and different. State v. Webb, 26 N.C. App. 526, 216 S.E.2d 382, 1975 N.C. App. LEXIS 2101 , cert. denied, 288 N.C. 251 , 217 S.E.2d 676, 1975 N.C. LEXIS 966 (1975).

An assault upon a woman is not a lesser degree of the crime of sodomy. State v. Jernigan, 255 N.C. 732 , 122 S.E.2d 711, 1961 N.C. LEXIS 681 (1961).

Conviction for Attempt. —

Upon the trial of an indictment for the crime against nature the prisoner may be convicted of the crime charged therein, or of an attempt to commit a less degree of the same crime. State v. Savage, 161 N.C. 245 , 76 S.E. 238, 1912 N.C. LEXIS 408 (1912); State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965).

A valid warrant or indictment is an essential of jurisdiction in a prosecution under this section. State v. Jernigan, 255 N.C. 732 , 122 S.E.2d 711, 1961 N.C. LEXIS 681 (1961).

Sufficiency of Indictment. —

An indictment under this section which charges that defendant did unlawfully, willfully, and feloniously commit the infamous crime against nature with a particular man, woman, or beast is sufficient. State v. O'Keefe, 263 N.C. 53 , 138 S.E.2d 767, 1964 N.C. LEXIS 751 (1964), cert. denied, 380 U.S. 985, 85 S. Ct. 1355, 14 L. Ed. 2d 277, 1965 U.S. LEXIS 1448 (1965); State v. Stubbs, 266 N.C. 295 , 145 S.E.2d 899, 1966 N.C. LEXIS 1328 (1966).

It is essential to a valid indictment in this jurisdiction that the indictment must allege that the defendant did unlawfully, willfully, and feloniously commit the infamous crime against nature with a particular man, woman, or beast. State v. Stokes, 274 N.C. 409 , 163 S.E.2d 770, 1968 N.C. LEXIS 794 (1968).

It is necessary to the legal sufficiency of an indictment charging the commission of a crime against nature to state with exactitude, inter alia, the name of the person with or against whom the offense was committed, in order that there can be certitude in the statement of the accusation as will identify the offense with which the accused is sought to be charged and to protect the accused from being twice put in jeopardy for the same offense. State v. Stokes, 274 N.C. 409 , 163 S.E.2d 770, 1968 N.C. LEXIS 794 (1968).

Indictment charging defendant with crime against nature held sufficient under G.S. 15A-924(a)(5). State v. Singleton, 85 N.C. App. 123, 354 S.E.2d 259, 1987 N.C. App. LEXIS 2561 (1987).

Petition Sufficient in Juvenile Case. —

Petitions charging appellant, a juvenile, with first-degree sexual offense and crimes against nature were sufficient where they stated that appellant engaged in a sexual act with a child under the age of 13 and that appellant committed the infamous crime against nature with the victim; moreover, the petitions stated that the victim was 7 and that he performed fellatio on appellant. The State did not need to identify the particular sex acts involved or describe the manner in which they were performed, and appellant did not have to be the one performing the sexual act for either of these offenses. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

The sole testimony of an accomplice will support a conviction in a prosecution for crime against nature. State v. Moles, 17 N.C. App. 664, 195 S.E.2d 352, 1973 N.C. App. LEXIS 1436 (1973).

Use of Anatomical Dolls to Illustrate Testimony. —

The courts of this State have allowed the use of anatomical dolls in sexual abuse cases to illustrate the testimony of child witnesses; the practice is wholly consistent with existing rules governing the use of photographs and other items to illustrate testimony, and it conveys the information sought to be elicited while permitting the child to use a familiar item, thereby making him more comfortable. State v. Chandler, 324 N.C. 172 , 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

Even though dolls were used to illustrate the testimony of a social worker rather than the abused children, the evidence was still admissible; the demonstration illustrated the social worker’s testimony as to the manner in which the children communicated the accounts of sexual abuse and the social worker’s demonstration of what she observed each child do with the dolls also corroborated the testimony of each child. State v. Chandler, 324 N.C. 172 , 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

Instruction Defining Unnatural Sexual Intercourse. —

In a prosecution of defendant for crime against nature, cunnilingus, the trial court’s definition of “unnatural sexual intercourse” in the jury charge was proper and could not have caused the jury to confuse cunnilingus with sexual intercourse. State v. Thacker, 301 N.C. 348 , 271 S.E.2d 252, 1980 N.C. LEXIS 1162 (1980).

Factual basis for nolo contendere pleas to charges of sexual activity by a substitute parent and crime against nature held adequate. State v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920, 1988 N.C. App. LEXIS 283 , cert. denied, 323 N.C. 177 , 373 S.E.2d 118, 1988 N.C. LEXIS 549 (1988).

Evidence Held Sufficient. —

Evidence of crime against nature against child held sufficient. State v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920, 1988 N.C. App. LEXIS 283 , cert. denied, 323 N.C. 177 , 373 S.E.2d 118, 1988 N.C. LEXIS 549 (1988).

Trial court did not err by denying defendant’s motion to dismiss the crime against nature charge because there was sufficient evidence from which a reasonable juror could conclude that defendant unlawfully engaged in sexual acts in a public place; the victim consistently testified that the offenses occurred at the bottom of the stairs in a parking lot. State v. Gentle, 260 N.C. App. 269, 817 S.E.2d 833, 2018 N.C. App. LEXIS 641 (2018), aff'd, 372 N.C. 47 , 822 S.E.2d 616, 2019 N.C. LEXIS 51 (2019).

§ 14-178. Incest.

  1. Offense. —  A person commits the offense of incest if the person engages in carnal intercourse with the person’s (i) grandparent or grandchild, (ii) parent or child or stepchild or legally adopted child, (iii) brother or sister of the half or whole blood, or (iv) uncle, aunt, nephew, or niece.
  2. Punishment and Sentencing. —
    1. A person is guilty of a Class B1 felony if either of the following occurs:
      1. The person commits incest against a child under the age of 13 and the person is at least 12 years old and is at least four years older than the child when the incest occurred.
      2. The person commits incest against a child who is 13, 14, or 15 years old and the person is at least six years older than the child when the incest occurred.
    2. A person is guilty of a Class C felony if the person commits incest against a child who is 13, 14, or 15 and the person is more than four but less than six years older than the child when the incest occurred.
    3. In all other cases of incest, the parties are guilty of a Class F felony.
  3. No Liability for Children Under 16. —  No child under the age of 16 is liable under this section if the other person is at least four years older when the incest occurred.

History. 1879, c. 16, s. 1; Code, s. 1060; Rev., s. 3351; 1911, c. 16; C.S., s. 4337; 1965, c. 132; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1192; 1994, Ex. Sess., c. 24, s. 14(c); 2002-119, s. 1.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

The preamble to Session Laws 2002-119, provides: “Whereas, despite the progress made in modernizing laws to protect children in North Carolina, a little-known loophole exists in the General Statutes of North Carolina that has very troubling consequences for some abused children; and

“Whereas, this loophole allows far lesser penalties for perpetrators convicted of sexually assaulting their own children than for those who rape or molest other children; and

“Whereas, this unintended disparity is the result of archaic incest laws that date to 1879; statutes that were originally intended to limit intermarriage among family members but now hamper modern efforts to fight sexual abuse of children; and

“Whereas, this double standard, that essentially rewards perpetrators for the most unthinkable betrayal of a child’s trust, does not reflect the values and goals of the citizens of North Carolina; and

“Whereas, criminals who sexually assault children should be prosecuted without regard to familial relationship; Now, therefore, the General Assembly of North Carolina enacts:”

Legal Periodicals.

For comment, “The Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

CASE NOTES

Constitutional Challenges. —

Because defendant did not raise his argument that G.S. 14-178 was constitutionally overbroad in the trial court, the issue was not properly before the court of appeals. State v. Reid, 204 N.C. App. 122, 693 S.E.2d 227, 2010 N.C. App. LEXIS 819 (2010).

The crime of incest is purely statutory. State v. Rogers, 260 N.C. 406 , 133 S.E.2d 1, 1963 N.C. LEXIS 730 (1963).

Incest was not indictable at common law. State v. Sauls, 190 N.C. 810 , 130 S.E. 848, 1925 N.C. LEXIS 175 (1925); State v. Broadway, 157 N.C. 598 , 72 S.E. 987, 1911 N.C. LEXIS 102 (1911).

Incest, although punished by the ecclesiastical courts of England as an offense against good morals, is not at common law an indictable offense. State v. Rogers, 260 N.C. 406 , 133 S.E.2d 1, 1963 N.C. LEXIS 730 (1963).

Incest requires carnal intercourse. State v. Gregory, 78 N.C. App. 565, 338 S.E.2d 110, 1985 N.C. App. LEXIS 4330 (1985).

Statutory Rape Not Lesser Included Offense of Incest. —

Trial court did not err in sentencing defendant for statutory rape and incest because statutory rape was not a lesser included offense of incest; the elements of statutory rape are not all included in the elements of incest, since statutory rape requires a showing of the victim’s and the defendant’s age, while the elements of incest can be proven without any reference to age, and incest requires a familial relationship that is not required for one to be convicted of statutory rape. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Intercourse with Daughter. —

A father violates this section and by reason thereof is guilty of the statutory felony of incest if he has sexual intercourse, either habitual or in a single instance, with a woman or girl whom he knows to be his daughter in fact, regardless of whether she is his legitimate or his illegitimate child. State v. Wood, 235 N.C. 636 , 70 S.E.2d 665, 1952 N.C. LEXIS 438 (1952); State v. Rogers, 260 N.C. 406 , 133 S.E.2d 1, 1963 N.C. LEXIS 730 (1963); State v. Vincent, 278 N.C. 63 , 178 S.E.2d 608, 1971 N.C. LEXIS 938 (1971); State v. Harvell, 45 N.C. App. 243, 262 S.E.2d 850, 1980 N.C. App. LEXIS 2617 (1980).

Carnal intercourse by the father with his illegitimate daughter constitutes the offense. State v. Lawrence, 95 N.C. 659 , 1886 N.C. LEXIS 328 (1886); Strider v. Lewey, 176 N.C. 448 , 97 S.E. 398, 1918 N.C. LEXIS 267 (1918).

Intercourse with Daughter of Half-Sister. —

It was held under former G.S. 14-179 that carnal intercourse of a man with the daughter of his half-sister was incest. State v. Harris, 149 N.C. 513 , 62 S.E. 1090, 1908 N.C. LEXIS 383 (1908).

Both parties are not necessarily guilty. Strider v. Lewey, 176 N.C. 448 , 97 S.E. 398, 1918 N.C. LEXIS 267 (1918).

Evidence. —

The crime of felonious incest has as an element that the defendant and the other participant be related in one of three enumerated familial ways, including parent-child. Thus, to prove one element of the offense in the case at hand, it was necessary to establish the parent-child relationship and it was error to then use the evidence of this relationship to find that defendant took advantage of a position of trust or confidence. State v. Hughes, 114 N.C. App. 742, 443 S.E.2d 76, 1994 N.C. App. LEXIS 502 (1994).

Failure to Charge “Carnal” Knowledge. —

The mere fact that indictment failed to charge “carnal” knowledge is not a fatal defect that would sustain the defendant’s motion to quash the indictment. State v. Sauls, 190 N.C. 810 , 130 S.E. 848, 1925 N.C. LEXIS 175 (1925).

Corroboration of Prosecutrix’ Testimony Not Required. —

There is no statute providing that the testimony of the prosecutrix must be corroborated by the evidence of others in a prosecution for incest. In consequence, a conviction for incest may be had against a father upon the uncorroborated testimony of the daughter if such testimony suffices to establish all of the elements of the offense beyond a reasonable doubt. State v. Wood, 235 N.C. 636 , 70 S.E.2d 665, 1952 N.C. LEXIS 438 (1952); State v. Vincent, 278 N.C. 63 , 178 S.E.2d 608, 1971 N.C. LEXIS 938 (1971).

Parental Immunity Doctrine Inapplicable. —

Minor plaintiffs’ action against their father for willfully assaulting, abusing, molesting and raping them was improperly dismissed under the provisions of G.S. 1A-1 , Rule 12(b)(6) on the ground that the action was barred by the parental immunity doctrine. Doe ex rel. Connolly v. Holt, 103 N.C. App. 516, 405 S.E.2d 807, 1991 N.C. App. LEXIS 794 (1991), aff'd, 332 N.C. 90 , 418 S.E.2d 511, 1992 N.C. LEXIS 372 (1992).

Where a father’s acts against his minor daughters constituted incest in violation of this section, second degree rape in violation of G.S. 14-27.3 , and second degree sexual offense in violation of G.S. 14-27.5 , and caused plaintiffs to suffer permanent physical, emotional and mental injuries, the doctrine of parental immunity will not bar a civil suit against him. Doe ex rel. Connolly v. Holt, 103 N.C. App. 516, 405 S.E.2d 807, 1991 N.C. App. LEXIS 794 (1991), aff'd, 332 N.C. 90 , 418 S.E.2d 511, 1992 N.C. LEXIS 372 (1992).

Evidence of Acts Other Than Those Charged in Indictment. —

In a prosecution for incest, evidence of acts of incestuous intercourse between the prosecuting witness and defendant other than those charged in the indictment, whether prior or subsequent thereto, is admissible to corroborate the proof of the act relied upon for conviction. State v. Austin, 285 N.C. 364 , 204 S.E.2d 675, 1974 N.C. LEXIS 978 (1974).

Proof of other similar acts is competent in corroboration. State v. Broadway, 157 N.C. 598 , 72 S.E. 987, 1911 N.C. LEXIS 102 (1911).

In prosecution for incest, evidence tending to show that defendant had had prior sexual contact with the prosecuting witness was reasonably probative of defendant’s knowledge, opportunity, intent and plan, and was not so prejudicial as to outweigh its probative value and render it inadmissible; moreover, even if there was error in the admission of such evidence, absent a showing of a reasonable possibility that a different result would have been reached had the evidence been excluded, any possible error would be considered harmless. State v. Cameron, 83 N.C. App. 69, 349 S.E.2d 327, 1986 N.C. App. LEXIS 2670 (1986).

Confessions of the wife to the husband are not admissible in a trial for incest. State v. Brittain, 117 N.C. 783 , 23 S.E. 433 (1895). But see § 8-57 .

Testimony of Other Daughter as to Similar Acts. —

In a prosecution under this section for an offense allegedly committed upon defendant’s daughter, testimony of an older daughter that within the past three years defendant several times had made to her improper advances of a similar nature, was competent solely for the purpose of showing intent or guilty knowledge. State v. Edwards, 224 N.C. 527 , 31 S.E.2d 516, 1944 N.C. LEXIS 408 (1944).

Statements Made by Prosecutrix to Witnesses. —

The trial court in an incest prosecution did not err in permitting repeated testimony by other witnesses of statements allegedly made to them by the prosecuting witness regarding defendant’s acts toward her since the trial judge has wide discretion in allowing corroborative testimony. State v. Pollock, 50 N.C. App. 169, 273 S.E.2d 501, 1980 N.C. App. LEXIS 3468 (1980).

Prosecutrix May Not Be Bastardized by Mother. —

In a prosecution under this section, the married mother of the prosecutrix may not testify that defendant, a person not her husband, is the natural father of the prosecutrix, since a mother will not be permitted to bastardize her own issue and testify to illicit relations, except in an action which directly involves the parentage of the child, and, the prosecutrix having been born in wedlock, the law will conclusively presume legitimacy in the absence of evidence that the father was impotent or could not have had access. State v. Rogers, 260 N.C. 406 , 133 S.E.2d 1, 1963 N.C. LEXIS 730 (1963).

Jury Instructions. —

In a prosecution for second-degree rape, incest, and second-degree sexual offense, the trial court did not err in using the term “victim,” as found in the pattern jury instructions, when describing the generic definitions of the crimes, as it was not thereby intimating any opinion as to whether defendant had committed the crimes. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Trial court committed plain error by failing to charge jury on attempted second-degree rape (G.S. 14-27.3) and attempted incest (G.S. 14-178), as the evidence regarding penetration was conflicting; defendant denied penetration, claiming he could not maintain an erection, and the victim’s statements also put the fact of penetration in doubt. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Defendant’s multiple convictions for incest were affirmed because defendant’s multiple acts of incest committed against his two daughters over a course of years were not continuing offenses. State v. Shelton, 167 N.C. App. 225, 605 S.E.2d 228, 2004 N.C. App. LEXIS 2178 (2004).

Sufficiency of Evidence. —

Where defendant was charged with incest in violation of this section, and the State’s evidence established that defendant had sexual intercourse with his stepchild, and that defendant knew the person was related to him, the three elements of the crime of incest were sufficiently established as a matter of law and this was sufficient evidence of a violation of this section to take to a jury. State v. Collins, 44 N.C. App. 27, 259 S.E.2d 802, 1979 N.C. App. LEXIS 3142 (1979).

The State introduced sufficient evidence of penetration to permit a rational trier of fact to find beyond a reasonable doubt that the defendant committed the offenses of incest and rape, where the child victim testified at trial that her father had penetrated her, even though there were discrepancies in her extrajudicial statements to others and in her trial testimony with regard to the manner, extent and frequency of the penetration. State v. Bruce, 315 N.C. 273 , 337 S.E.2d 510, 1985 N.C. LEXIS 1996 (1985).

Testimony of the victim’s mother that defendant was the victim’s father and testimony of the victim that defendant started molesting her when she was four years old provided support for defendant’s incest conviction. State v. Locklear, 172 N.C. App. 249, 616 S.E.2d 334, 2005 N.C. App. LEXIS 1583 (2005).

There was sufficient evidence of defendant’s overt actions beyond mere preparation in defendant’s attempt to have vaginal intercourse with his daughter for purposes of an attempted statutory rape of a person who is 13, 14, or 15 years old under G.S. 14-27.7 A(a) and an attempted incest charge under G.S. 14-178(a)(ii) to go to the jury; defendant’s repeated asking of his daughter to have intercourse with him, when combined with his comments that he wanted to be “inside her” and be “her first,” and the repeated sexual acts, constituted sufficient evidence of overt sexual behavior from which it could be inferred that defendant intended to engage in vaginal intercourse with his victim. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

There was substantial evidence to support convictions for incest under G.S. 14-178(a), and two counts of statutory sex offense of a person who was 15 years old in violation of G.S. 14-27.7 A(a), because: (1) the victim testified that defendant was her biological father and identified him in open court, and her birth certificate identified defendant as her father, providing direct evidence of defendant’s paternity; and (2) there was substantial direct and circumstantial evidence that defendant had vaginal intercourse or engaged in a sexual act with his daughter on multiple occasions while she was 15. State v. Ware, 188 N.C. App. 790, 656 S.E.2d 662, 2008 N.C. App. LEXIS 263 (2008).

Sufficient evidence supported defendant’s conviction for two counts of first-degree sexual offense with a child and one count of incest because there was no possibility that defendant was confused regarding the identity of the victim. The use of “[MXX],” together with the date of birth, in the indictments provided defendant with sufficient notice to prepare his defense and protect himself against future prosecutions for the same crimes. State v. Perkins, 2022- NCCOA-38, 2022 N.C. App. LEXIS 36 (N.C. Ct. App. Jan. 18, 2022).

Aggravating Factors in Sentencing. —

Evidence that defendant pled guilty to one count of incest with his 15-year-old daughter, but that defendant’s incestuous relationship with his daughter began when she was 12 years old supported the trial court’s findings of the factor in aggravation provided for in G.S. 15A-1340.4(a)(1)j. State v. Jackson, 70 N.C. App. 782, 321 S.E.2d 169, 1984 N.C. App. LEXIS 4021 (1984).

§ 14-179. [Repealed]

Repealed by Session Laws 2002-119, s. 2, effective December 1, 2002.

Cross References.

For present provisions pertaining to incest between uncle and niece and nephew and aunt, see G.S. 14-178 .

§ 14-180. [Repealed]

Repealed by Session Laws 1975, c. 402.

§§ 14-181, 14-182. [Repealed]

Repealed by Session Laws 1973, c. 108, s. 4.

§ 14-183. Bigamy.

If any person, being married, shall marry any other person during the life of the former husband or wife, every such offender, and every person counseling, aiding or abetting such offender, shall be punished as a Class I felon. Any such offense may be dealt with, tried, determined and punished in the county where the offender shall be apprehended, or be in custody, as if the offense had been actually committed in that county. If any person, being married, shall contract a marriage with any other person outside of this State, which marriage would be punishable as bigamous if contracted within this State, and shall thereafter cohabit with such person in this State, he shall be guilty of a felony and shall be punished as in cases of bigamy. Nothing contained in this section shall extend to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to have been living within that time; nor to any person who at the time of such second marriage shall have been lawfully divorced from the bond of the first marriage; nor to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.

History. See 9 Geo. IV, c. 31, s. 22; 1790, c. 323, P.R; 1809, c. 783, P.R; 1829, c. 9; R.C., c. 34, s. 15; Code, s. 988; Rev., s. 3361; 1913, c. 26; C.S., s. 4342; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1193; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For note as to consequences of a voidable divorce decree, see 35 N.C.L. Rev. 409 (1957).

CASE NOTES

Constitutionality. —

This section, making bigamous cohabitation in this State a felony, is valid and offends neither the federal nor State Constitutions. State v. Williams, 224 N.C. 183 , 29 S.E.2d 744, 1944 N.C. LEXIS 453 (1944), aff'd, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 31 Ohio Op. 83, 1945 U.S. LEXIS 2036 (1945).

The 1913 amendment to this section, which added the words “shall thereafter cohabit with such person in this State,” which words qualify and constitute a requisite to the jurisdiction when the second marriage is not in North Carolina, is constitutional and does not confer extraterritorial jurisdiction upon the courts. See State v. Herron, 175 N.C. 754 , 94 S.E. 698, 1917 N.C. LEXIS 452 (1917); State v. Moon, 178 N.C. 715 , 100 S.E. 614, 1919 N.C. LEXIS 544 (1919).

Offense Against Society. —

At common law and under this section bigamy is an offense against society rather than against the lawful spouse of the offender. State v. Williams, 220 N.C. 445 , 17 S.E.2d 769, 1941 N.C. LEXIS 566 (1941), rev'd, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279, 1942 U.S. LEXIS 2 (1942).

Validity of First Marriage. —

That the first marriage was celebrated without procurement of a license, while subjecting the parties to punishment, will not so invalidate the marriage that bigamy cannot be predicated thereon. State v. Robbins, 28 N.C. 23 , 1845 N.C. LEXIS 8 (1845).

In a trial for bigamy, an instruction that defendant could not be convicted unless the jury was satisfied beyond a reasonable doubt that the magistrate who solemnized the first marriage was a “duly appointed, qualified, and acting justice of the peace,” was properly refused, it being sufficient if such justice was a de facto officer. State v. Davis, 109 N.C. 780 , 14 S.E. 55, 1891 N.C. LEXIS 307 (1891).

The evidence showing that there were a number of eyewitnesses to the marriage, and a certified copy of the license with return endorsed being produced, it was not error to charge the jury that it would be presumed that the ceremony was valid. State v. Davis, 109 N.C. 780 , 14 S.E. 55, 1891 N.C. LEXIS 307 (1891).

A ceremony solemnized by a Roman Catholic layman, who bought for $10.00 a mail order certificate giving him “credentials of minister” in the Universal Life Church, Inc., was not a ceremony of marriage to be recognized for purposes of a bigamy prosecution in this State. State v. Lynch, 301 N.C. 479 , 272 S.E.2d 349, 1980 N.C. LEXIS 1188 (1980).

Burden on Defendant to Show Absence of Wife. —

The burden is on the defendant to show as a matter of defense that his wife had absented herself for the space of seven years next before the second marriage, and that he was ignorant all that time that she was living. State v. Goulden, 134 N.C. 743 , 47 S.E. 450, 1904 N.C. LEXIS 152 (1904).

Absence for Less Than Seven Years. —

A belief by the defendant that his first wife is dead or his ignorance of her being alive, she having been away for less than seven years, is no defense in a prosecution for bigamy. State v. Goulden, 134 N.C. 743 , 47 S.E. 450, 1904 N.C. LEXIS 152 (1904).

Indictment — Averment of First Marriage. —

An indictment for bigamy which charges that defendant “willfully, unlawfully and feloniously, being a married man, did marry one W. during the life of his first wife,” sufficiently averred the first marriage. State v. Davis, 109 N.C. 780 , 14 S.E. 55, 1891 N.C. LEXIS 307 (1891).

Same — Name of First Wife. —

It is not necessary in an indictment for bigamy to set out the name of the first wife. State v. Davis, 109 N.C. 780 , 14 S.E. 55, 1891 N.C. LEXIS 307 (1891).

Same — Averment That Defendant Was Not Divorced. —

It was not necessary that an indictment for bigamy should contain an averment that the defendant had not been divorced from his wife. State v. Norman, 13 N.C. 222 , 1829 N.C. LEXIS 52 (1829); State v. Davis, 109 N.C. 780 , 14 S.E. 55, 1891 N.C. LEXIS 307 (1891); State v. Melton, 120 N.C. 591 , 26 S.E. 933, 1897 N.C. LEXIS 138 (1897).

Same — Time and Place of Marriage. —

This section does not by its language make it necessary for the indictment to state the dates of the marriages, and G.S. 15-155 expressly enacts that such a statement shall not be necessary. State v. Long, 143 N.C. 670 , 57 S.E. 349, 1907 N.C. LEXIS 90 (1907).

Under this section it is unnecessary to state where the second marriage took place, and it is not necessary that the offense should be committed in the county where the bill is found to confer jurisdiction. State v. Long, 143 N.C. 670 , 57 S.E. 349, 1907 N.C. LEXIS 90 (1907).

Venue. —

Defendant may be prosecuted for bigamy in the county in which he is apprehended, and it is not required that the prosecution be instituted in the county in which the bigamous cohabitation takes place. State v. Williams, 220 N.C. 445 , 17 S.E.2d 769, 1941 N.C. LEXIS 566 (1941), rev'd, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279, 1942 U.S. LEXIS 2 (1942).

Where the bigamous cohabitation took place in one county and the parties were apprehended in another county, the prosecution could be instituted in the county of their apprehension. State v. Williams, 224 N.C. 183 , 29 S.E.2d 744, 1944 N.C. LEXIS 453 (1944), aff'd, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 31 Ohio Op. 83, 1945 U.S. LEXIS 2036 (1945).

Admissions as to Prior Marriage. —

In a prosecution for bigamy an admission of the defendant is competent to prove the first marriage. State v. Goulden, 134 N.C. 743 , 47 S.E. 450, 1904 N.C. LEXIS 152 (1904).

Testimony of First Wife. —

In an indictment for bigamy the first wife of the defendant is a competent witness to prove the marriage. State v. Melton, 120 N.C. 591 , 26 S.E. 933, 1897 N.C. LEXIS 138 (1897).

By the express provisions of G.S. 8-57 , defendant’s legal wife was a competent witness before the grand jury, which was considering an indictment against defendant charging him with a violation of the provisions of this section. State v. Vandiver, 265 N.C. 325 , 144 S.E.2d 54, 1965 N.C. LEXIS 976 (1965).

The record book of marriage for the county or the original marriage license signed by the justice solemnizing the marriage is admissible to prove a marriage. State v. Melton, 120 N.C. 591 , 26 S.E. 933, 1897 N.C. LEXIS 138 (1897).

Proof of Second Marriage Out of State. —

If the defendant wishes to rely upon the fact that the offense of bigamy was committed outside the State, he cannot move to quash or in arrest, but must prove the fact in defense under his plea of not guilty. State v. Mitchell, 83 N.C. 674 , 1880 N.C. LEXIS 153 (1880); State v. Burton, 138 N.C. 575 , 50 S.E. 214, 1905 N.C. LEXIS 303 (1905); State v. Barrington, 141 N.C. 820 , 53 S.E. 663, 1906 N.C. LEXIS 166 (1906); State v. Long, 143 N.C. 670 , 57 S.E. 349, 1907 N.C. LEXIS 90 (1907).

In a prosecution for bigamous cohabitation based upon a second marriage in another state, the State must prove beyond a reasonable doubt each of the essential elements of the offense. State v. Setzer, 226 N.C. 216 , 37 S.E.2d 513, 1946 N.C. LEXIS 421 (1946).

Proof of Foreign Divorces. —

Where a decree of divorce in another state, which is attacked by the prosecution for insufficient residence in such other state, is relied upon as the only defense on a trial for bigamy, the defendant must satisfy the jury, but not beyond a reasonable doubt, of the bona fides of his residence in the other state. State v. Herron, 175 N.C. 754 , 94 S.E. 698, 1917 N.C. LEXIS 452 (1917).

While decrees of divorce granted citizens of this State by the courts of another state, standing alone, are taken as prima facie valid, they are not conclusive, and when challenged in a prosecution under this section for bigamous cohabitation, the burden is on defendants to show to the satisfaction of the jury that they had acquired bona fide domiciles in the state granting their divorces and that such divorces are valid. State v. Williams, 224 N.C. 183 , 29 S.E.2d 744, 1944 N.C. LEXIS 453 (1944), aff'd, 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577, 31 Ohio Op. 83, 1945 U.S. LEXIS 2036 (1945).

Proof of a divorce granted in another state upon a trial for bigamy in North Carolina courts is only evidence which should be submitted to the jury under proper instructions. State v. Herron, 175 N.C. 754 , 94 S.E. 698, 1917 N.C. LEXIS 452 (1917).

§ 14-184. Fornication and adultery.

If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other.

History. 1805, c. 684, P.R; R.C., c. 34, s. 45; Code, s. 1041; Rev., s. 3350; C.S., s. 4343; 1969, c. 1224, s. 9; 1993, c. 539, s. 119; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

For note on dependency tax deductions for paramours and how I.R.C. § 152(b)(5) applies to this statute, see 3 Campbell L. Rev. 133 (1981).

For note, “The Squeal Rule: Statutory Resolution and Constitutional Implications — Burdening the Minor’s Right of Privacy,” see 6 Duke L.J. 1325 (1984).

For note, “The Effect on the Child of a Custodial Parent’s Involvement in an Intimate Same-Sex Relationship,” see 10 Campbell L. Rev. 131 (1996).

For comment, “The Road Not Taken: Using the Eighth Amendment to Strike Down Criminal Punishment for Engaging in Consensual Sexual Acts,” see 82 N.C.L. Rev. 723 (2004).

For article, “Falling Out of Love with an Outdated Tort: An Argument for the Abolition of Criminal Conversation in North Carolina,” 87 N.C.L. Rev. 1910 (2009).

For article, “Adultery, Infidelity, and Consensual Non-Monogamy,” see 55 Wake Forest L. Rev. 147 (2020).

CASE NOTES

History of Section. —

See State v. Davis, 229 N.C. 386 , 50 S.E.2d 37, 1948 N.C. LEXIS 335 (1948).

Statute of Limitations. —

Adultery is subject to a two-year statute of limitations. Leonard v. Williams, 100 N.C. App. 512, 397 S.E.2d 321, 1990 N.C. App. LEXIS 1058 (1990).

Offense Is Statutory. —

The offense of fornication and adultery is statutory. State v. Ivey, 230 N.C. 172 , 52 S.E.2d 346, 1949 N.C. LEXIS 588 (1949).

Privilege Against Self-Incrimination. —

Chapter 13 debtor who was sued in state court in an action alleging alienation of affection, criminal conversation, and defamation arising out of an alleged affair between the debtor and plaintiff’s former wife did not have to answer certain questions plaintiff’s counsel asked during an examination conducted pursuant to Fed. R. Bankr. P. 2004 because his answers could have been used in a prosecution under G.S. 14-184 ; however, cards, letters, email messages, text messages, and Facebook messages the debtor exchanged with plaintiff’s former wife were not protected and had to be produced. In re Welsh, 2013 Bankr. LEXIS 4716 (Bankr. E.D.N.C. Nov. 7, 2013).

Protected Sexual Relationship. —

Because this section makes fornication and adultery a misdemeanor in this State, the only sexual relationship the law protects is that between married partners. Nicholson v. Hugh Chatham Mem. Hosp., 300 N.C. 295 , 266 S.E.2d 818, 1980 N.C. LEXIS 1075 (1980).

Adultery is an aggravated species of fornication. State v. Crowell, 26 N.C. 231 , 1844 N.C. LEXIS 8 (1844).

“Lewdly and lasciviously cohabit” implies habitual intercourse in the manner of husband and wife, and together with the fact of not being married to each other, constitutes the offense, and in plain words draws the distinction between single or nonhabitual intercourse and the offense the statute means to denounce. State v. Davenport, 225 N.C. 13 , 33 S.E.2d 136, 1945 N.C. LEXIS 251 (1945); State v. Ivey, 230 N.C. 172 , 52 S.E.2d 346, 1949 N.C. LEXIS 588 (1949); State v. Kleiman, 241 N.C. 277 , 85 S.E.2d 148, 1954 N.C. LEXIS 407 (1954).

A single act of illicit sexual intercourse is not fornication and adultery as defined by this section. “Lewdly and lasciviously cohabit” plainly implies habitual intercourse, in the manner of husband and wife, and together with the fact of not being married to each other, constitutes the offense, and in plain words draws the distinction between single or nonhabitual intercourse and the offense the statute means to denounce. State v. Robinson, 9 N.C. App. 433, 176 S.E.2d 253, 1970 N.C. App. LEXIS 1376 (1970).

Thus a single act of illicit sexual intercourse does not constitute fornication and adultery as defined by this section, the offense being habitual sexual intercourse in the manner of husband and wife by a man and woman not married to each other. However, the duration of the association is immaterial if the requisite habitual intercourse is established and it has been held that a period of two weeks is sufficient to constitute the offense. State v. Kleiman, 241 N.C. 277 , 85 S.E.2d 148, 1954 N.C. LEXIS 407 (1954).

State Need Not Prove That Male Defendant and His Wife Were Separated. —

In a prosecution under this section, it is not required that the State prove that the male defendant and his wife were separated. State v. Kleiman, 241 N.C. 277 , 85 S.E.2d 148, 1954 N.C. LEXIS 407 (1954).

Acquittal as to One Party. —

Where only one party is convicted and the other acquitted, there can be no judgment against the one convicted. State v. Mainor, 28 N.C. 340 (1846). This holding was followed in the case of State v. Lyerly, 52 N.C. 158 (1859) and was held as law in this State until doubted in State v. Rhinehart, 106 N.C. 787 , 11 S.E. 512 (1890). The question came before the court again in State v. Armistead, 54 N.C. App. 358, 283 S.E.2d 162, 1981 N.C. App. LEXIS 2821 (1981) when it was held that an acquittal of one defendant did not work the same result as to the other, or prevent the court from rendering judgment. This seems to be the present status of the law on this point. It was followed in State v. Childress, 321 N.C. 231 , 362 S.E.2d 263 (1987).

Both defendants need not be convicted of mutual intent to violate the law before conviction of one of them can be sustained. State v. Davenport, 225 N.C. 13 , 33 S.E.2d 136, 1945 N.C. LEXIS 251 (1945).

New Trial as to One Defendant. —

If both defendants are convicted, a new trial may be granted as to one party without disturbing the verdict as to the other. State v. Parham, 50 N.C. 416 , 1858 N.C. LEXIS 74 (1858).

Indictment — Use of Word “Adulterously”. —

The use of the word “adulterously” dispenses with the necessity of alleging that the parties were not married and were of different sexes. State v. McDuffie, 107 N.C. 885 , 12 S.E. 83, 1890 N.C. LEXIS 165 (1890).

Same — Use of Words “Lewdly and Lasciviously”. —

The words “lewdly and lasciviously” need not be used. State v. Britt, 150 N.C. 811 , 63 S.E. 1056, 1909 N.C. LEXIS 161 (1909).

Same — Allegation of Criminal Intent. —

The State is not called upon to allege or prove the criminal intent. State v. Cutshall, 109 N.C. 764 , 14 S.E. 107, 1891 N.C. LEXIS 305 (1891).

Same — Allegation That Female Defendant Is a “Spinster”. —

The fact that the female is erroneously alleged to be a “spinster” is not ground of arrest of judgment. State v. Guest, 100 N.C. 410 , 6 S.E. 253, 1888 N.C. LEXIS 201 (1888).

When Declarations of Codefendant Are Admissible. —

While the admissions or confessions of one party are not to be received against the codefendant, it has been held that under certain circumstances such declarations are admissible when made by the female defendant in the presence of the male. See State v. Roberts, 188 N.C. 460 , 124 S.E. 833, 1924 N.C. LEXIS 100 (1924).

Testimony of an admission made by defendant that “he was guilty” of another charge based upon sexual relations with the other party was competent as an admission of acts which with other similar acts tended to prove the offense of fornication and adultery. State v. Davis, 229 N.C. 386 , 50 S.E.2d 37, 1948 N.C. LEXIS 335 (1948).

The proviso in this section relates to extra-judicial declarations, and does not prevent a woman jointly charged with the offense from testifying as a witness at the trial of her paramour to facts, otherwise competent, which are within her personal knowledge, where at the time she testifies her plea of nolo contendere has been accepted by the State, and she is no longer on trial. The prohibition of the proviso is directed not to the person testifying but against the use in evidence of such person’s previous admissions or confessions. State v. Davis, 229 N.C. 386 , 50 S.E.2d 37, 1948 N.C. LEXIS 335 (1948) (discussed in 27 N.C.L. Rev. 365 (1949)) .

Where, in a prosecution for fornication and adultery, the person jointly charged has testified as to the facts forming the basis of the prosecution, testimony that she had made substantially the same statements to another upon the investigation is competent for the purpose of corroboration. State v. Davis, 229 N.C. 386 , 50 S.E.2d 37, 1948 N.C. LEXIS 335 (1948).

Circumstantial Evidence. —

It is never essential to conviction of fornication and adultery that even a single act of illicit sexual intercourse be proven by direct testimony. While necessary to a conviction that such acts must have occurred, it is, nevertheless, competent to infer them from the circumstances presented in the evidence. State v. Robinson, 9 N.C. App. 433, 176 S.E.2d 253, 1970 N.C. App. LEXIS 1376 (1970).

The guilt of defendants or of a defendant, in a prosecution for fornication and adultery, must be established in almost every case by circumstantial evidence. It is never essential to conviction that a single act of intercourse be shown by direct testimony. State v. Davenport, 225 N.C. 13 , 33 S.E.2d 136, 1945 N.C. LEXIS 251 (1945).

The acts of illicit intercourse may be proved by circumstantial evidence, and it is not required that even one such act be directly proven. State v. Kleiman, 241 N.C. 277 , 85 S.E.2d 148, 1954 N.C. LEXIS 407 (1954).

It is competent to prove that either defendant had a living spouse. State v. Manly, 95 N.C. 661 , 1886 N.C. LEXIS 329 (1886).

Statements and conduct prior to the offense charged are admissible. State v. Austin, 108 N.C. 780 , 13 S.E. 219, 1891 N.C. LEXIS 144 (1891).

Testimony as to conduct of the parties after indictment is admissible. State v. Stubbs, 108 N.C. 774 , 13 S.E. 90, 1891 N.C. LEXIS 142 (1891).

Improper Advances Made by Defendant to Another Woman. —

Where defendant was charged with fornication and adultery with one of the orphanage girls under his supervision, testimony of another orphanage girl that defendant made improper advances to her was competent for the purpose of showing attitude, animus and purpose of defendant, and as corroborative of the State’s case. State v. Davis, 229 N.C. 386 , 50 S.E.2d 37, 1948 N.C. LEXIS 335 (1948).

§ 14-185. [Repealed]

Repealed by Session Laws 1975, c. 402.

§ 14-186. Opposite sexes occupying same bedroom at hotel for immoral purposes; falsely registering as husband and wife.

Any man and woman found occupying the same bedroom in any hotel, public inn or boardinghouse for any immoral purpose, or any man and woman falsely registering as, or otherwise representing themselves to be, husband and wife in any hotel, public inn or boardinghouse, shall be deemed guilty of a Class 2 misdemeanor.

History. 1917, c. 158, s. 2; C.S., s. 4345; 1969, c. 1224, s. 3; 1993, c. 539, s. 120; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Constitutionality. —

The portion of this section making it a misdemeanor to occupy a bedroom with a member of the opposite sex for immoral purposes is too vague and indefinite to comply with constitutional due process standards. Such opinion does not apply to statutes which refer to “immoral purposes” but which also contain phrases which, by the doctrine of ejusdem generis, may be used to define “immoral purposes.” The phrase “any immoral purposes” within this section is not preceded by any phrases from which could be determined the meaning of “immoral purposes.” State v. Sanders, 37 N.C. App. 53, 245 S.E.2d 397, 1978 N.C. App. LEXIS 2654 (1978).

This section fails to define with sufficient precision exactly what the term “any immoral purpose” may encompass. The word immoral is not equivalent to the word illegal; hence, enforcement of this section may involve legal acts which, nevertheless, are immoral in the view of many citizens. One must necessarily speculate, therefore, as to what acts are immoral. If the legislative intent of this section is to proscribe illicit sexual intercourse the statute could have specifically so provided. State v. Sanders, 37 N.C. App. 53, 245 S.E.2d 397, 1978 N.C. App. LEXIS 2654 (1978).

§ 14-187. [Repealed]

Repealed by Session Laws 1975, c. 402.

§ 14-188. Certain evidence relative to keeping disorderly houses admissible; keepers of such houses defined; punishment.

  1. On a prosecution in any court for keeping a disorderly house or bawdy house, or permitting a house to be used as a bawdy house, or used in such a way as to make it disorderly, or a common nuisance, evidence of the general reputation or character of the house shall be admissible and competent; and evidence of the lewd, dissolute and boisterous conversation of the inmates and frequenters, while in and around such house, shall be prima facie evidence of the bad character of the inmates and frequenters, and of the disorderly character of the house. The manager or person having the care, superintendency or government of a disorderly house or bawdy house is the “keeper” thereof, and one who employs another to manage and conduct a disorderly house or bawdy house is also “keeper” thereof.
  2. On a prosecution in any court for keeping a disorderly house or a bawdy house, or permitting a house to be used as a bawdy house or used in such a way to make it disorderly or a common nuisance, the offense shall constitute a Class 2 misdemeanor.

History. 1907, c. 779; C.S., s. 4347; 1969, c. 1224, s. 22; 1993, c. 539, s. 121; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Constitutionality. —

This section is constitutional. State v. Price, 175 N.C. 804 , 95 S.E. 478, 1918 N.C. LEXIS 160 (1918).

Disorderly House Defined. —

A disorderly house is kept in such a way as to disturb or scandalize the public generally, or the inhabitants of a particular neighborhood, or the passersby. State v. Wilson, 93 N.C. 608 , 1885 N.C. LEXIS 131 (1885).

Person Leasing Premises. —

A person who leases a house knowing that it is to be used for disorderly and unlawful purposes is treated as a direct offender. State v. Boyd, 175 N.C. 791 , 95 S.E. 161, 1918 N.C. LEXIS 157 (1918).

Powers of City Authorities. —

The extent of the powers of the authorities of a municipality to enact ordinances concerning houses of ill fame is discussed in State v. Webber, 107 N.C. 962 , 12 S.E. 598, 1890 N.C. LEXIS 180 (1890).

Illustrative Cases. —

The following have been held to constitute disorderly houses: A shop in which disorderly crowds assemble. See State v. Robertson, 86 N.C. 628 (1882); A store in which persons collect and disturb the neighborhood. See State v. Thornton, 44 N.C. 252 , 1853 N.C. LEXIS 146 (1853).

The following have been held not to constitute disorderly houses: A private dwelling wherein an uproar was frequently raised but which disturbed few people. See State v. Wright, 51 N.C. 25 (1858). The residence of an unchaste woman. See State v. Evans, 27 N.C. 603 , 1845 N.C. LEXIS 167 (1845).

§§ 14-189, 14-189.1. [Repealed]

Repealed by Session Laws 1971, c. 405, s. 4.

§§ 14-189.2, 14-190. [Repealed]

Repealed by Session Laws 1971, c. 591, s. 4.

§ 14-190.1. Obscene literature and exhibitions.

  1. It shall be unlawful for any person, firm or corporation to intentionally disseminate obscenity. A person, firm or corporation disseminates obscenity within the meaning of this Article if he or it:
    1. Sells, delivers or provides or offers or agrees to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or
    2. Presents or directs an obscene play, dance or other performance or participates directly in that portion thereof which makes it obscene; or
    3. Publishes, exhibits or otherwise makes available anything obscene; or
    4. Exhibits, presents, rents, sells, delivers or provides; or offers or agrees to exhibit, present, rent or to provide: any obscene still or motion picture, film, filmstrip, or projection slide, or sound recording, sound tape, or sound track, or any matter or material of whatever form which is a representation, embodiment, performance, or publication of the obscene.
  2. For purposes of this Article any material is obscene if:
    1. The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and
    2. The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and
    3. The material lacks serious literary, artistic, political, or scientific value; and
    4. The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.
  3. As used in this Article, “sexual conduct” means:
    1. Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted; or
    2. Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or
    3. An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.
  4. Obscenity shall be judged with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or the circumstances of its dissemination to be especially designed for or directed to such children or audiences.
  5. It shall be unlawful for any person, firm or corporation to knowingly and intentionally create, buy, procure or possess obscene material with the purpose and intent of disseminating it unlawfully.
  6. It shall be unlawful for a person, firm or corporation to advertise or otherwise promote the sale of material represented or held out by said person, firm or corporation as obscene.
  7. Violation of this section is a Class I felony.
  8. Obscene material disseminated, procured, or promoted in violation of this section is contraband.
  9. Nothing in this section shall be deemed to preempt local government regulation of the location or operation of sexually oriented businesses to the extent consistent with the constitutional protection afforded free speech.

History. 1971, c. 405, s. 1; 1973, c. 1434, s. 1; 1985, c. 703, s. 1; 1993, c. 539, s. 1194; 1994, Ex. Sess., c. 24, s. 14(c); 1998-46, s. 2.

Cross References.

As to civil remedy for sale of harmful materials to minors, see G.S. 19-9 et seq.

Editor’s Note.

Session Laws 1971, c. 405, which enacted this section, in s. 2, effective July 1, 1971, provided: “Every word, clause, sentence, paragraph, section, or other part of this act shall be interpreted in such manner as to be as expansive as the Constitution of the United States and the Constitution of North Carolina permit.”

Legal Periodicals.

For article, “Regulating Obscenity Through the Power To Define and Abate Nuisances,” see 14 Wake Forest L. Rev. 1 (1978).

For note on control of obscenity through enforcement of a nuisance statute, see 4 Campbell L. Rev. 139 (1981).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For article, “Obscenity: The Justices’ (Not So) New Robes,” see 8 Campbell L. Rev. 387 (1986).

For article, “Pornography and the First Amendment,” see 1986 Duke L.J. 589.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

For observation, “Why The 1985 North Carolina Obscenity Law Is Fundamentally Wrong,” see 65 N.C.L. Rev. 793 (1987).

For note, “Seizing Obscenity: New York v. P.J. Video, Inc. and the Waning of Presumptive Protection,” see 65 N.C.L. Rev. 799 (1987).

For comment, “Prostitution and Obscenity: A Comment Upon the Attorney General’s Report on Pornography,” see 1987 Duke L.J. 123.

For note, “Constitutional Law — Non-Traditional Forms of Expression Get No Protection: An Analysis of Nude Dancing Under Barnes v. Glen Theatre, Inc.,” see 27 Wake Forest L. Rev. 1061 (1992).

CASE NOTES

History of Section. —

See State v. Bryant, 285 N.C. 27 , 203 S.E.2d 27, 1974 N.C. LEXIS 897 , cert. denied, 419 U.S. 974, 95 S. Ct. 238, 42 L. Ed. 2d 188, 1974 U.S. LEXIS 3121 (1974).

Section Is Constitutional. —

This section specifically defines the elements of obscenity and hence is not unconstitutional on grounds of vagueness or overbreadth. State v. Bryant, 16 N.C. App. 456, 192 S.E.2d 693, 1972 N.C. App. LEXIS 1742 (1972), cert. denied, 282 N.C. 583 , 193 S.E.2d 747, 1973 N.C. LEXIS 1123 (1973), vacated, 413 U.S. 913, 93 S. Ct. 3065, 37 L. Ed. 2d 1036 (1973).

The dissemination of obscenity is not protected by the State and federal constitutions; thus, this section by its terms does not infringe upon the rights to disseminate protected material. State v. Bryant, 16 N.C. App. 456, 192 S.E.2d 693, 1972 N.C. App. LEXIS 1742 (1972), cert. denied, 282 N.C. 583 , 193 S.E.2d 747, 1973 N.C. LEXIS 1123 (1973), vacated, 413 U.S. 913, 93 S. Ct. 3065, 37 L. Ed. 2d 1036 (1973).

Motion to quash warrant grounded on the alleged unconstitutionality of this section would be denied. State v. Horn, 18 N.C. App. 377, 197 S.E.2d 274, 1973 N.C. App. LEXIS 1880 (1973), aff'd, 285 N.C. 82 , 203 S.E.2d 36, 1974 N.C. LEXIS 903 (1974).

This section is constitutional. State v. Johnson, 20 N.C. App. 699, 202 S.E.2d 479, 1974 N.C. App. LEXIS 2527 (1974); State v. Smith, 89 N.C. App. 19, 365 S.E.2d 631, 1988 N.C. App. LEXIS 243 , rev'd, 323 N.C. 439 , 373 S.E.2d 435, 1988 N.C. LEXIS 617 (1988); State v. Anderson, 322 N.C. 22 , 366 S.E.2d 459, 1988 N.C. LEXIS 123 , cert. denied, 488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548, 1988 U.S. LEXIS 5352 (1988).

This section is not substantially overbroad and gives sufficiently definite warning of the proscriptions therein. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

This section is aimed at the dissemination of obscenity which is not protected by any constitutional guarantees; the statute is not aimed at mere possession of obscenity in the privacy of one’s own home. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

It is not innocent but calculated dissemination of obscene material which is prohibited by this section, and accordingly the scienter requirement therein is constitutionally sufficient. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

It is not constitutionally mandated for a state to statutorily create a right to a prompt adversary proceeding on the obscenity of material seized and retained as evidence pending a trial wherein said evidence will be introduced; the statutory scheme of this section does not constitute a prior restraint merely because there is no provision for an adversary hearing which a defendant bears the burden of requesting. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Subsection (b) of this section is not unconstitutional on its face. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Subsections (a) and (d) of this section are to be read in pari materia with subsection (c), and thus subsection (c) is not unconstitutionally vague. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

This section and G.S. 14-190.13 , 14-190.16 and 14-190.17 are constitutional as drawn; while potentially beyond constitutional bounds if improperly applied, these statutes are not so substantially overbroad as to require constitutional invalidation on their face. Cinema I Video, Inc. v. Thornburg, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Neither this section nor judge’s instructions contravened the Constitution by failing to specify what is meant by “community.” State v. Mayes, 86 N.C. App. 569, 359 S.E.2d 30, 1987 N.C. App. LEXIS 2756 (1987), aff'd, 323 N.C. 159 , 371 S.E.2d 476, 1988 N.C. LEXIS 535 (1988).

The constitutionality of this section is no longer in doubt. State v. Smith, 87 N.C. App. 217, 360 S.E.2d 495, 1987 N.C. App. LEXIS 3118 (1987).

Subsection (b) of this section is not rendered unconstitutional by failing to require the use of a “statewide” community standard in determining what materials are obscene. State v. Roland, 88 N.C. App. 19, 362 S.E.2d 800, 1987 N.C. App. LEXIS 3452 (1987), aff'd, 322 N.C. 469 , 368 S.E.2d 385, 1988 N.C. LEXIS 242 (1988).

Contention that the exclusion of the term “educational” from subdivision (b)(3) of this section rendered the provision invalid as a violation of the right to education guaranteed by N.C. Const., Art. I, § 15 was without merit. State v. Watson, 88 N.C. App. 624, 364 S.E.2d 683, 1988 N.C. App. LEXIS 212 (1988).

This section is neither vague nor overbroad because of the specificity with which it defines which types of “sexual conduct” are considered obscene. State v. Cinema Blue of Charlotte, Inc., 98 N.C. App. 628, 392 S.E.2d 136, 1990 N.C. App. LEXIS 448 (1990), cert. denied, 498 U.S. 1083, 111 S. Ct. 953, 112 L. Ed. 2d 1042, 1991 U.S. LEXIS 736 (1991).

Constitutionality of 1985 Amendment. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which substantially amended this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

N.C. Const., Art. I, §§ 14 and 19 do not require that a statewide standard be judicially incorporated into this section in order to render the statute facially valid. State v. Mayes, 323 N.C. 159 , 371 S.E.2d 476, 1988 N.C. LEXIS 535 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784, 1989 U.S. LEXIS 188 (1989).

Sections 14-190.1 to 14-190.8 made material and substantial changes in North Carolina law prohibiting the dissemination of obscenity. State v. McCluney, 280 N.C. 404 , 185 S.E.2d 870, 1972 N.C. LEXIS 1258 (1972).

And Section 14-189.1 Was Not Continued in Effect. —

Session Laws 1971, c. 405, which repealed G.S. 14-189.1, did not substantially reenact it, therefore it was not continued in effect. State v. McCluney, 280 N.C. 404 , 185 S.E.2d 870, 1972 N.C. LEXIS 1258 (1972).

There is nothing in Session Laws 1971, c. 405, which repealed G.S. 14-189.1 outright and enacted this section, to indicate an intent to leave the old law unrepealed, or to reaffirm it. On the contrary, the clear implication is that the legislature intended to get rid of a law of dubious constitutionality. State v. McCluney, 280 N.C. 404 , 185 S.E.2d 870, 1972 N.C. LEXIS 1258 (1972).

The changes made in the 1971 Act evidence the legislature’s apprehension that G.S. 14-189.1 did not meet the requirements of the federal Constitution. State v. McCluney, 280 N.C. 404 , 185 S.E.2d 870, 1972 N.C. LEXIS 1258 (1972).

The enactment of this section was an obvious attempt to provide a new law which would meet the latest tests enunciated by the United States Supreme Court in order that State law-enforcement officers might proceed with assurance against public dissemination and pandering of obscenity. State v. McCluney, 280 N.C. 404 , 185 S.E.2d 870, 1972 N.C. LEXIS 1258 (1972).

Application of 1973 amendment to defendants arrested prior to the amendment violated neither due process nor the ex post facto doctrine as the materials had to be found obscene under the doctrines of both Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, rehearing denied, 414 U.S. 881, 94 S. Ct. 26, 38 L. Ed. 2d 128 (1973) which precipitated the 1973 amendment and “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen., 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), the pre-1973 obscenity test in order to convict. State v. Hart, 287 N.C. 76 , 213 S.E.2d 291, 1975 N.C. LEXIS 1068 (1975).

County or Municipal Ordinance Relating to Obscenity. —

Nothing in G.S. 14-190.1 to 14-190.9, statewide laws relating to obscene literature and exhibitions and to indecent exposure, expresses or indicates an intent by the General Assembly to preclude cities and towns or counties from enacting and enforcing ordinances requiring a higher standard of conduct or condition within their respective jurisdictions. State v. Tenore, 280 N.C. 238 , 185 S.E.2d 644 (1972), wherein the Supreme Court declined to express any opinion as to whether a county or municipal ordinance, otherwise valid, may constitutionally prohibit and make punishable an exhibition or the dissemination of materials found to be “obscene” under the standards of the community in which such ordinance applies, though not “obscene” as judged by the “contemporary national community standards.”

This section specifically defines the elements of obscenity. State v. Bryant, 16 N.C. App. 456, 192 S.E.2d 693, 1972 N.C. App. LEXIS 1742 (1972), cert. denied, 282 N.C. 583 , 193 S.E.2d 747, 1973 N.C. LEXIS 1123 (1973), vacated, 413 U.S. 913, 93 S. Ct. 3065, 37 L. Ed. 2d 1036 (1973).

Effect of U.S. Supreme Court Decisions. —

The United States Supreme Court, in the interest of strengthening powers to regulate pornography, did not elect to eliminate constitutionally valid law that would otherwise be available in prosecuting pending obscenity cases. State v. Bryant, 20 N.C. App. 223, 201 S.E.2d 211, 1973 N.C. App. LEXIS 1525 (1973), aff'd, 285 N.C. 27 , 203 S.E.2d 27, 1974 N.C. LEXIS 897 (1974).

Definitions in U.S. Supreme Court Cases to Be Considered. —

In appellate review, the court shall consider both definitions of obscenity in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, rehearing denied, 414 U.S. 881, 94 S. Ct. 26, 38 L. Ed. 2d 128 (1973) (and) “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen., 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966). If the film is not obscene under both of these standards the charges must be dismissed. State v. Bryant, 20 N.C. App. 223, 201 S.E.2d 211, 1973 N.C. App. LEXIS 1525 (1973), aff'd, 285 N.C. 27 , 203 S.E.2d 27, 1974 N.C. LEXIS 897 (1974).

Construction of Section to Conform to Guidelines Set by U.S. Supreme Court. —

The broad terms in which obscene material was defined in subsection (b) of this section before the 1973 amendment fall far short of the United States Supreme Court’s requirement that the sexual conduct which may be deemed obscene and patently offensive must be specifically defined. However, in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the United States Supreme Court held that where state obscenity statutes as written do not define what sexual conduct may be deemed obscene and patently offensive with sufficient specificity to comply with the guidelines set forth in that case, the state courts should be afforded the opportunity by construction to confine the obscene matter prohibited by their statutes to “hard-core” pornography. Thus this section as it stood before the 1973 amendment would be construed to prohibit as obscene only material consisting of the following: (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. State v. Bryant, 285 N.C. 27 , 203 S.E.2d 27, 1974 N.C. LEXIS 897 , cert. denied, 419 U.S. 974, 95 S. Ct. 238, 42 L. Ed. 2d 188, 1974 U.S. LEXIS 3121 (1974).

A conviction under this section is rendered constitutionally invalid if the statute is not applied substantially in accordance with the test in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, rehearing denied, 414 U.S. 881, 94 S. Ct. 26, 38 L. Ed. 2d 128 (1973), both as initially formulated and as subsequently construed and explained by the United States Supreme Court. State v. Watson, 88 N.C. App. 624, 364 S.E.2d 683, 1988 N.C. App. LEXIS 212 (1988).

Subsection (b) of this section requires three factual findings before material can be defined as obscene. First, the jury must find that the material depicts “sexual conduct” in a patently offensive way. This requires a two-part inquiry: (1) Does the material in question contain descriptions or depictions of sexual conduct defined in subsection (c), and if so, then (2) is the sexual conduct depicted or described in a “patently offensive way?” Second, the jury must find that the average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex. Third, the jury must find that the material lacks serious literary, artistic, political or scientific value. State v. Anderson, 85 N.C. App. 104, 354 S.E.2d 264, 1987 N.C. App. LEXIS 2585 (1987), rev'd, 322 N.C. 22 , 366 S.E.2d 459, 1988 N.C. LEXIS 123 (1988).

This section specifically defines the acts of “sexual conduct” the portrayal of which may be found obscene if otherwise in violation of the statute. State v. Anderson, 322 N.C. 22 , 366 S.E.2d 459, 1988 N.C. LEXIS 123 , cert. denied, 488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548, 1988 U.S. LEXIS 5352 (1988).

Test as to Value. —

The test is not whether a material has any value, but whether it has “serious” scientific, artistic, literary or political value. State v. Roland, 88 N.C. App. 19, 362 S.E.2d 800, 1987 N.C. App. LEXIS 3452 (1987), aff'd, 322 N.C. 469 , 368 S.E.2d 385, 1988 N.C. LEXIS 242 (1988).

Application of Statewide Standard Not Required. —

Under this section, trial court does not err by failing to charge the jury to apply a “statewide” community standard. State v. Watson, 88 N.C. App. 624, 364 S.E.2d 683, 1988 N.C. App. LEXIS 212 (1988).

Films which are stark portrayals of sex acts without a suggested theme or purpose other than to portray the acts in the most blatant manner, and which exhibit a morbid interest in nudity and portray sex acts far beyond customary limits of candor in description or representation of such matters, are patently offensive “hard-core” portrayals of sexual conduct proscribed by this section which regulates dissemination of obscene materials in a public place. State v. Bryant, 20 N.C. App. 223, 201 S.E.2d 211, 1973 N.C. App. LEXIS 1525 (1973), aff'd, 285 N.C. 27 , 203 S.E.2d 27, 1974 N.C. LEXIS 897 (1974).

Photographs can be so obscene that the fact is incontrovertible. State v. Horn, 18 N.C. App. 377, 197 S.E.2d 274, 1973 N.C. App. LEXIS 1880 (1973), aff'd, 285 N.C. 82 , 203 S.E.2d 36, 1974 N.C. LEXIS 903 (1974).

There was sufficient evidence to deny defendant’s motion to dismiss the charge of using a minor in obscenity because a photograph the State introduced into evidence depicted defendant and a naked child in a sexually suggestive pose. State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53, 2009 N.C. App. LEXIS 55 (2009).

Application of More Stringent Criteria Than Constitutionally Required. —

Where there was ample evidence to support the jury finding that films were “utterly without redeeming social value,” more stringent criteria than the present test of “lacking serious literary, artistic, political or scientific value,” the fact that the prosecution in these cases was required to meet the more difficult test gives these defendants no ground for complaint. State v. Bryant, 285 N.C. 27 , 203 S.E.2d 27, 1974 N.C. LEXIS 897 , cert. denied, 419 U.S. 974, 95 S. Ct. 238, 42 L. Ed. 2d 188, 1974 U.S. LEXIS 3121 (1974).

Although whether material alleged to be obscene is patently offensive may now be determined by “contemporary community standards” rather than by “contemporary national community standards,” the fact that the prosecution was required to establish and did establish that films were patently offensive when tested by “contemporary national community standards” affords defendant no ground of complaint, since the prosecution was required to meet a more difficult test. State v. Bryant, 285 N.C. 27 , 203 S.E.2d 27, 1974 N.C. LEXIS 897 , cert. denied, 419 U.S. 974, 95 S. Ct. 238, 42 L. Ed. 2d 188, 1974 U.S. LEXIS 3121 (1974).

Positive and Negative Findings Required. —

This section, in addition to requiring positive findings on the questions of offensive display of sexual conduct patently offensive to the average person, requires an additional negative finding that the material lacks serious literary, artistic, political, educational or scientific value. State ex rel. Yeager v. Neal, 26 N.C. App. 741, 217 S.E.2d 576, 1975 N.C. App. LEXIS 2148 (1975).

What Level of Scienter Must Be Proved. —

This section is neither a specific intent statute requiring proof that defendant knew the legal status of the materials he disseminated, nor, on the other hand, does it impose strict liability for disseminating obscenity. Instead, the statute requires just the intermediate level scienter proof: proof that defendant knew the nature and content of the materials purveyed. State v. Smith, 87 N.C. App. 217, 360 S.E.2d 495, 1987 N.C. App. LEXIS 3118 (1987).

Finding of Intent and Guilty Knowledge Required for Conviction. —

This section requires a finding of intent and guilty knowledge before a defendant may be convicted for dissemination of obscenity in a public place. State v. Bryant, 16 N.C. App. 456, 192 S.E.2d 693, 1972 N.C. App. LEXIS 1742 (1972), cert. denied, 282 N.C. 583 , 193 S.E.2d 747, 1973 N.C. LEXIS 1123 (1973), vacated, 413 U.S. 913, 93 S. Ct. 3065, 37 L. Ed. 2d 1036 (1973).

Under subsection (a) of this section, the prosecutor must prove beyond a reasonable doubt that the person charged “intentionally” disseminated obscenity. This standard requires findings of both “intent” and “guilty knowledge.” State v. Roland, 88 N.C. App. 19, 362 S.E.2d 800, 1987 N.C. App. LEXIS 3452 (1987), aff'd, 322 N.C. 469 , 368 S.E.2d 385, 1988 N.C. LEXIS 242 (1988).

Guilty knowledge requires not only knowledge of the character or nature of the materials, but also knowledge of their content. State v. Roland, 88 N.C. App. 19, 362 S.E.2d 800, 1987 N.C. App. LEXIS 3452 (1987), aff'd, 322 N.C. 469 , 368 S.E.2d 385, 1988 N.C. LEXIS 242 (1988).

Evidence held sufficient to permit a reasonable inference that defendant had knowledge of the contents of the materials in question. State v. Roland, 88 N.C. App. 19, 362 S.E.2d 800, 1987 N.C. App. LEXIS 3452 (1987), aff'd, 322 N.C. 469 , 368 S.E.2d 385, 1988 N.C. LEXIS 242 (1988).

Evidence, when viewed in the light most favorable to the State, held to constitute sufficient circumstantial evidence to allow a reasonable inference that defendant store manager knew the character and content of the materials she disseminated. State v. Watson, 88 N.C. App. 624, 364 S.E.2d 683, 1988 N.C. App. LEXIS 212 (1988).

The State is not required to offer affirmative testimony concerning each of the statutory criteria; the materials themselves are sufficient evidence for a determination of the question of obscenity. State v. Von Wilds, 88 N.C. App. 69, 362 S.E.2d 605, 1987 N.C. App. LEXIS 3442 (1987), disapproved, State v. Smith, 323 N.C. 439 , 373 S.E.2d 435, 1988 N.C. LEXIS 617 (1988). But see State v. Smith, 323 N.C. 439 , 373 S.E.2d 435, 1988 N.C. LEXIS 617 (1988).

The trial court did not err in failing specifically to define the term “community,” or to instruct the jury to reach a consensus as to the geographic bounds of the community standards they were to apply. State v. Mayes, 323 N.C. 159 , 371 S.E.2d 476, 1988 N.C. LEXIS 535 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784, 1989 U.S. LEXIS 188 (1989).

Availability of Similar Material Not Sufficient to Show Community Acceptance. —

Evidence of mere availability of similar materials is not by itself sufficiently probative of community standards to be admissible in the absence of proof that the material enjoys a reasonable degree of community acceptance; therefore, the trial court did not err in refusing to admit into evidence two magazines purchased by a private investigator in a local convenience store for comparison by the jury with the two allegedly obscene magazines which were the subject of the trial. State v. Mayes, 323 N.C. 159 , 371 S.E.2d 476, 1988 N.C. LEXIS 535 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784, 1989 U.S. LEXIS 188 (1989).

Notice of Nature of Material and Protection Against Exposure to Juveniles. —

In dissemination of obscenity case, court properly denied request for an instruction to the jury that if the jury found the defendant provided notice to the public of the nature of the magazines involved in the case, and if they found the defendant provided reasonable protection against the exposure of the magazines to juveniles, then the jury would have to find that the defendant’s conduct was protected under the U.S. Const., Amends. I and XIV, and that it would be the duty of the jury to return a verdict of not guilty. State v. Horn, 18 N.C. App. 377, 197 S.E.2d 274, 1973 N.C. App. LEXIS 1880 (1973), aff'd, 285 N.C. 82 , 203 S.E.2d 36, 1974 N.C. LEXIS 903 (1974).

Possession of Obscenity in Own Home Not Prohibited. —

This section does not authorize the issuance of criminal process for mere possession of obscenity in the privacy of one’s own home. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Single Sale of Multiple Items Spawns One Indictment. —

A single sale of multiple obscene materials in contravention of this section does not spawn multiple indictments. State v. Smith, 323 N.C. 439 , 373 S.E.2d 435, 1988 N.C. LEXIS 617 (1988).

Despite the number of obscene materials sold at one time, a defendant may not be convicted of more than one offense for each transaction. State v. Johnston, 123 N.C. App. 292, 473 S.E.2d 25, 1996 N.C. App. LEXIS 706 (1996).

The fact that defendant sold two obscene magazines did not transform his crime into a multi-offense situation. State v. Johnston, 123 N.C. App. 292, 473 S.E.2d 25, 1996 N.C. App. LEXIS 706 (1996).

Trial court’s exclusion of “comparable materials” offered to show that the materials for which defendant was prosecuted were not patently offensive and did not appeal to a prurient interest in sex was not error where three of the magazines in question were involved in prosecutions in Durham County and thus were of little relevance in establishing the community standard in Catawba County, and where although the fourth magazine was involved in a Catawba County case, in which the person charged was acquitted, there was no evidence that the acquittal was based on a jury finding that the material was not obscene. State v. Watson, 88 N.C. App. 624, 364 S.E.2d 683, 1988 N.C. App. LEXIS 212 (1988).

Exclusion of Survey Results Upheld. —

In a prosecution under this section, the trial court properly excluded the results of a survey amounting to little more than a referendum on the desirability of the U.S. Const., Amend. I and this section, as the issue which the jury was to decide was whether the average adult, applying contemporary community standards, would find that the magazines in question appealed to a prurient interest in sex in a patently offensive manner. State v. Anderson, 322 N.C. 22 , 366 S.E.2d 459, 1988 N.C. LEXIS 123 , cert. denied, 488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548, 1988 U.S. LEXIS 5352 (1988).

In prosecution for dissemination of obscene material, the trial court did not err in excluding certain evidence and expert testimony proffered by the defendant concerning a survey of 400 adults in 41 counties about pornography, where the excluded survey questions had no relevance to what the community considered obscene. State v. Mayes, 323 N.C. 159 , 371 S.E.2d 476, 1988 N.C. LEXIS 535 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784, 1989 U.S. LEXIS 188 (1989).

The State is not required to offer affirmative testimony concerning each of the statutory criteria; the materials themselves are sufficient evidence for a determination of the question of obscenity. State v. Von Wilds, 88 N.C. App. 69, 362 S.E.2d 605, 1987 N.C. App. LEXIS 3442 (1987), disapproved, State v. Smith, 323 N.C. 439 , 373 S.E.2d 435, 1988 N.C. LEXIS 617 (1988).

Witness Held Qualified to Testify as an Expert. —

Where the expert witness had years of experience in teaching speech communication, including the use of sexually explicit materials, at a state university, he had used magazines of the type at issue here throughout his teaching career to assist students in the understanding and application of the U.S. Const., Amend. I and state law relating to obscenity, and he had made a specific study of the subject, he was qualified to give his expert opinion that the magazines in this case were not patently offensive and did not appeal to the prurient interest in sex. State v. Mayes, 323 N.C. 159 , 371 S.E.2d 476, 1988 N.C. LEXIS 535 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784, 1989 U.S. LEXIS 188 (1989).

Discretion of Court in Admission of Expert Testimony. —

While expert testimony is admissible in obscenity trials, the trial court retains wide discretion in its determination to admit and exclude evidence. State v. Anderson, 85 N.C. App. 104, 354 S.E.2d 264, 1987 N.C. App. LEXIS 2585 (1987), rev'd, 322 N.C. 22 , 366 S.E.2d 459, 1988 N.C. LEXIS 123 (1988).

While the trial court erred in refusing to permit the expert witness to testify that he had made a systematic study under accepted methodology of sexually explicit materials with relation to U.S. Const., Amend. I and this section, and that based on this study, he held the opinion that the magazines in this case were not patently offensive and did not appeal to the prurient interest in sex, the error was harmless because another expert witness testified that the magazines were not patently offensive and that they did not appeal to the prurient interest in sex and that they had artistic and scientific value. State v. Mayes, 323 N.C. 159 , 371 S.E.2d 476, 1988 N.C. LEXIS 535 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784, 1989 U.S. LEXIS 188 (1989).

Exclusion of Expert Testimony Upheld. —

Fact that expert “found adult material” at several locations in the county did not provide a sufficient basis to support the admission of his expert testimony concerning whether the average adult in the community would find the materials which defendant was accused of selling to be patently offensive. His study was simply too unfocused and unspecific to provide him with a sufficient basis to give an expert opinion as to whether the average adult applying contemporary community standards would find the magazines at issue to be patently offensive. Thus, the trial court properly exercised its discretion by excluding his expert opinion testimony concerning whether the magazines in question were patently offensive to the average adult, applying contemporary community standards, on the ground that he was no better qualified than the jury to address the question and could not assist the jury. State v. Anderson, 322 N.C. 22 , 366 S.E.2d 459, 1988 N.C. LEXIS 123 , cert. denied, 488 U.S. 975, 109 S. Ct. 513, 102 L. Ed. 2d 548, 1988 U.S. LEXIS 5352 (1988).

Motion to Dismiss Properly Denied. —

Trial court did not err by denying defendant’s motion to dismiss the charge of disseminating obscene material to a minor because the victim described the movie defendant had shown her, the State introduced a photograph of three pornographic DVDs that detectives found during the search of the master bedroom, and the victim’s mother testified that defendant “had so many” pornographic DVDs that he kept in that room. State v. Wilson, 263 N.C. App. 567, 823 S.E.2d 892, 2019 N.C. App. LEXIS 50 (2019).

A proper jury charge under this section must direct the jury to (1) determine patent offensiveness, like appeal to prurient interest, by applying community standards, and (2) determine value from each work “taken as a whole,” and decide whether a reasonable person would find serious literary, artistic, political, or scientific value in the material, taken as a whole. State v. Watson, 88 N.C. App. 624, 364 S.E.2d 683, 1988 N.C. App. LEXIS 212 (1988).

Jury instruction on the definition of obscenity derived solely from this section is necessarily incomplete and inadequate. State v. Watson, 88 N.C. App. 624, 364 S.E.2d 683, 1988 N.C. App. LEXIS 212 (1988).

Erroneous Instruction Held Harmless. —

In a prosecution under this section, the trial court erred in instructing the jury to assess the materials’ value based on their “own views,” rather than on a reasonable man test. However, this error would be deemed harmless where the appellate court, having examined the materials, concluded that no rational juror, properly instructed, could find value in them. State v. Roland, 88 N.C. App. 19, 362 S.E.2d 800, 1987 N.C. App. LEXIS 3452 (1987), aff'd, 322 N.C. 469 , 368 S.E.2d 385, 1988 N.C. LEXIS 242 (1988).

Case Properly Submitted to Jury. —

Films shown in defendants’ place of business which had no plot, no real motive and no objectives other than to appeal to the prurient interest in sex were uncontrovertibly obscene and exhibition of such films was not protected by the U.S. Const., Amends. I and XIV; therefore, the trial court did not err in submitting the case to the jury in an action under this section. State v. Bryant, 16 N.C. App. 456, 192 S.E.2d 693, 1972 N.C. App. LEXIS 1742 (1972), cert. denied, 282 N.C. 583 , 193 S.E.2d 747, 1973 N.C. LEXIS 1123 (1973), vacated, 413 U.S. 913, 93 S. Ct. 3065, 37 L. Ed. 2d 1036 (1973).

Disseminating obscene material to a child victim under G.S. 14-190.1(a)(4) charge properly went to a jury as: (1) the victim was able to describe in detail the pictures defendant showed to the victim on defendant’s computer; (2) when presented with the state’s evidence, the victim testified that the photographs were substantially similar to those shown to the victim by defendant; (3) the specific photographs were found on several disks seized from defendant’s storage unit; and (4) the photographs that the victim testified about showed nude men and women, in which the women appeared young in age and had blonde hair, and in which the men and women were engaged in a sexual act. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Conditions of Probation. —

Where defendant had been convicted of disseminating obscene materials, trial court did not abuse its discretion when it imposed as a condition of defendant’s probation that he refrain from “working in any retail establishment that sells sexually explicit materials.” State v. Johnston, 123 N.C. App. 292, 473 S.E.2d 25, 1996 N.C. App. LEXIS 706 (1996).

§ 14-190.2. [Repealed]

Repealed by Session Laws 1985, c. 703, s. 2.

§ 14-190.3. [Repealed]

Repealed by Session Laws 1985, c. 703, s. 3.

§ 14-190.4. Coercing acceptance of obscene articles or publications.

No person, firm or corporation shall, as a condition to any sale, allocation, consignment or delivery for resale of any paper, magazine, book, periodical or publication require that the purchaser or consignee receive for resale any other article, book, or publication which is obscene within the meaning of G.S. 14-190.1 ; nor shall any person, firm or corporation deny or threaten to deny any franchise or impose or threaten to impose any penalty, financial or otherwise, by reason of the failure or refusal of any person to accept such articles, books, or publications, or by reason of the return thereof. Violation of this section is a Class 1 misdemeanor.

History. 1971, c. 405, s. 1; 1985, c. 703, s. 4; 1993, c. 539, s. 122; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which substantially amended this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

§ 14-190.5. Preparation of obscene photographs, slides and motion pictures.

Every person who knowingly:

  1. Photographs himself or any other person, for purposes of preparing an obscene film, photograph, negative, slide or motion picture for the purpose of dissemination; or
  2. Models, poses, acts, or otherwise assists in the preparation of any obscene film, photograph, negative, slide or motion picture for the purpose of dissemination,shall be guilty of a Class 1 misdemeanor.

History. 1971, c. 405, s. 1; 1985, c. 703, s. 5; 1993, c. 539, s. 123; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which substantially amended this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

§ 14-190.5A. Disclosure of private images; civil action.

  1. Definitions. —  The following definitions apply in this section:
    1. Disclose. — Transfer, publish, distribute, or reproduce.
    2. Image. — A photograph, film, videotape, recording, live transmission, digital or computer-generated visual depiction, or any other reproduction that is made by electronic, mechanical, or other means.
    3. Intimate parts. — Any of the following naked human parts: (i) male or female genitals, (ii) male or female pubic area, (iii) male or female anus, or (iv) the nipple of a female over the age of 12.
    4. , (5) Repealed by Session Laws 2017-93, s. 1, effective December 1, 2017, and applicable to offenses committed on or after that date.

      (6) Sexual conduct. — Includes any of the following:

      1. Vaginal, anal, or oral intercourse, whether actual or simulated, normal or perverted.
      2. Masturbation, excretory functions, or lewd exhibition of uncovered genitals.
      3. An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.
  2. Offense. —  A person is guilty of disclosure of private images if all of the following apply:
    1. The person knowingly discloses an image of another person with the intent to do either of the following:
      1. Coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.
      2. Cause others to coerce, harass, intimidate, demean, humiliate, or cause financial loss to the depicted person.
    2. The depicted person is identifiable from the disclosed image itself or information offered in connection with the image.
    3. The depicted person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image.
    4. The person discloses the image without the affirmative consent of the depicted person.
    5. The person obtained the image without consent of the depicted person or under circumstances such that the person knew or should have known that the depicted person expected the images to remain private.
  3. Penalty. —  A violation of this section shall be punishable as follows:
    1. For an offense by a person who is 18 years of age or older at the time of the offense, the violation is a Class H felony.
    2. For a first offense by a person who is under 18 years of age at the time of the offense, the violation is a Class 1 misdemeanor.
    3. For a second or subsequent offense by a person who is under the age of 18 at the time of the offense, the violation is a Class H felony.
  4. Exceptions. —  This section does not apply to any of the following:
    1. Images involving voluntary exposure in public or commercial settings.
    2. Disclosures made in the public interest, including, but not limited to, the reporting of unlawful conduct or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, medical treatment, or scientific or educational activities.
    3. Providers of an interactive computer service, as defined in 47 U.S.C. § 230(f), for images provided by another person.
  5. Destruction of Image. —  In addition to any penalty or other damages, the court may award the destruction of any image made in violation of this section.
  6. Other Sanctions or Remedies Not Precluded. —  A violation of this section is an offense additional to other civil and criminal provisions and is not intended to repeal or preclude any other sanctions or remedies.
  7. Civil Action. —  In addition to any other remedies at law or in equity, including an order by the court to destroy any image disclosed in violation of this section, any person whose image is disclosed, or used, as described in subsection (b) of this section, has a civil cause of action against any person who discloses or uses the image and is entitled to recover from the other person any of the following:
    1. Actual damages, but not less than liquidated damages, to be computed at the rate of one thousand dollars ($1,000) per day for each day of the violation or in the amount of ten thousand dollars ($10,000), whichever is higher.
    2. Punitive damages.
    3. A reasonable attorneys’ fee and other litigation costs reasonably incurred.

      The civil cause of action may be brought no more than one year after the initial discovery of the disclosure, but in no event may the action be commenced more than seven years from the most recent disclosure of the private image.

History. 2015-250, s. 1; 2017-93, s. 1.

Effect of Amendments.

Session Laws 2017-93, s. 1, substituted “live transmission, digital or computer-generated visual depiction, or any other reproduction that is made by electronic, mechanical, or other means” for “digital, or other reproduction” in subdivision (a)(2); deleted subdivision (a)(4), which read: “Personal relationship. — As defined in G.S. 50B-1(b) ”; deleted subdivision (a)(5), which read: “Reasonable expectation of privacy. — When a depicted person has consented to the disclosure of an image within the context of a personal relationship and the depicted person reasonably believes that the disclosure will not go beyond that relationship”; and rewrote subdivision (b)(5), which read: “The person discloses the image under circumstances such that the person knew or should have known that the depicted person had a reasonable expectation of privacy.” For effective date and applicability, see editor’s note.

CASE NOTES

Revenge. —

Trial court did not did not err by submitting the issue of revenge porn to the jury because the topless photo of the ex-wife that appeared on a social media site was the same photograph shared by the ex-husband through another social networking platform. Clark v. Barrett, 2021-NCCOA-652, 867 S.E.2d 743, 2021- NCCOA-652, 2021 N.C. App. LEXIS 682 (N.C. Ct. App. 2021).

§ 14-190.6. Employing or permitting minor to assist in offense under Article.

Every person 18 years of age or older who intentionally, in any manner, hires, employs, uses or permits any minor under the age of 16 years to do or assist in doing any act or thing constituting an offense under this Article and involving any material, act or thing he knows or reasonably should know to be obscene within the meaning of G.S. 14-190.1 , shall be guilty of a Class I felony.

History. 1971, c. 405, s. 1; 1983, c. 916, s. 2; 1985, c. 703, s. 6.

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

For comment, “Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which substantially amended this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

Evidence Sufficient. —

There was sufficient evidence to deny defendant’s motion to dismiss the charge of using a minor in obscenity because a photograph the State introduced into evidence depicted defendant and a naked child in a sexually suggestive pose. State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53, 2009 N.C. App. LEXIS 55 (2009).

Double Jeopardy Not Shown. —

Defendant’s right to be free from double jeopardy was not violated because none of the elements for indecent liberties with a child and using a minor in obscenity were the same; therefore, defendant did not receive ineffective assistance of counsel for failure to raise the double jeopardy argument. State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53, 2009 N.C. App. LEXIS 55 (2009).

§ 14-190.7. Dissemination to minors under the age of 16 years.

Every person 18 years of age or older who knowingly disseminates to any minor under the age of 16 years any material which he knows or reasonably should know to be obscene within the meaning of G.S. 14-190.1 shall be guilty of a Class I felony.

History. 1971, c. 405, s. 1; 1977, c. 440, s. 2; 1985, c. 703, s. 7.

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which substantially amended this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

Evidence Sufficient to Withstand Motion to Dismiss. —

There was enough evidence that defendant provided obscene and harmful materials to minors to carry those charges to the jury; thus, the trial court’s denial of defendant’s motion to dismiss the charges of dissemination to minors under the age of 16 was proper. State v. Hill, 179 N.C. App. 1, 632 S.E.2d 777, 2006 N.C. App. LEXIS 1636 (2006).

§ 14-190.8. Dissemination to minors under the age of 13 years.

Every person 18 years of age or older who knowingly disseminates to any minor under the age of 13 years any material which he knows or reasonably should know to be obscene within the meaning of G.S. 14-190.1 shall be punished as a Class I felon.

History. 1971, c. 405, s. 1; 1977, c. 440, s. 3; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 175, ss. 7, 10; c. 720, ss. 4, 10; 1985, c. 703, s. 8; 1993, c. 539, s. 1195; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which substantially amended this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

Motion to Dismiss Properly Denied. —

Trial court did not err by denying defendant’s motion to dismiss the charge of disseminating obscene material to a minor because the victim described the movie defendant had shown her, the State introduced a photograph of three pornographic DVDs that detectives found during the search of the master bedroom, and the victim’s mother testified that defendant “had so many” pornographic DVDs that he kept in that room. State v. Wilson, 263 N.C. App. 567, 823 S.E.2d 892, 2019 N.C. App. LEXIS 50 (2019).

§ 14-190.9. Indecent exposure.

  1. Unless the conduct is punishable under subsection (a1) of this section, any person who shall willfully expose the private parts of his or her person in any public place and in the presence of any other person or persons, except for those places designated for a public purpose where the same sex exposure is incidental to a permitted activity, or aids or abets in any such act, or who procures another to perform such act; or any person, who as owner, manager, lessee, director, promoter or agent, or in any other capacity knowingly hires, leases or permits the land, building, or premises of which he is owner, lessee or tenant, or over which he has control, to be used for purposes of any such act, shall be guilty of a Class 2 misdemeanor. (a1) Unless the conduct is prohibited by another law providing greater punishment, any person at least 18 years of age who shall willfully expose the private parts of his or her person in any public place in the presence of any other person less than 16 years of age for the purpose of arousing or gratifying sexual desire shall be guilty of a Class H felony. An offense committed under this subsection shall not be considered to be a lesser included offense under G.S. 14-202.1 .

    (a2) Unless the conduct is prohibited by another law providing greater punishment, any person who shall willfully expose the private parts of his or her person in the presence of anyone other than a consenting adult on the private premises of another or so near thereto as to be seen from such private premises for the purpose of arousing or gratifying sexual desire is guilty of a Class 2 misdemeanor.

    (a4) Unless the conduct is punishable by another law providing greater punishment, any person at least 18 years of age who shall willfully expose the private parts of his or her person in a private residence of which they are not a resident and in the presence of any other person less than 16 years of age who is a resident of that private residence shall be guilty of a Class 2 misdemeanor.

    (a5) Unless the conduct is prohibited by another law providing greater punishment, any person located in a private place who shall willfully expose the private parts of his or her person with the knowing intent to be seen by a person in a public place shall be guilty of a Class 2 misdemeanor.

  2. Notwithstanding any other provision of law, a woman may breast feed in any public or private location where she is otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breast feeding.
  3. Notwithstanding any other provision of law, a local government may regulate the location and operation of sexually oriented businesses. Such local regulation may restrict or prohibit nude, seminude, or topless dancing to the extent consistent with the constitutional protection afforded free speech.

History. 1971, c. 591, s. 1; 1993, c. 301, s. 1; c. 539, s. 124; 1994, Ex. Sess., c. 24, s. 14(c); 1998-46, s. 3; 2005-226, s. 1; 2015-250, ss. 2, 2.1, 2.3.

Editor’s Note.

Session Laws 1971, c. 591, which enacted this section, in s. 2, provided: “Every word, clause, sentence, paragraph, section, or other part of this act shall be interpreted in such manner as to be as expansive as the Constitution of the United States and the Constitution of North Carolina permit.”

Effect of Amendments.

Session Laws 2005-226, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, in subsection (a), substituted “Unless the conduct is punishable under subsection (a1) of this section, any” for “Any” and “except for those places designated for a public purpose where the same sex exposure is incidental to a permitted activity” for “of the opposite sex”; and added subsection (a1).

Session Laws 2015-250, ss. 2, 2.1, 2.3, effective December 1, 2015, added subsections (a2), (a5), and (a4), respectively. For applicability, see editor’s note.

Legal Periodicals.

For article discussing whether buttocks are properly classified as private parts within the meaning of this section, see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

This section is not unconstitutional on its face. State v. King, 20 N.C. App. 505, 201 S.E.2d 724, 1974 N.C. App. LEXIS 2482 , modified, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

Nudity Is Conduct Subject to Regulation. —

When nudity is employed as sales promotion in bars and restaurants, nudity is conduct. As conduct, the nudity of employees is as fit a subject for governmental regulation as is the licensing of the liquor dispensaries and the fixing of their closing hours. State v. King, 20 N.C. App. 505, 201 S.E.2d 724, 1974 N.C. App. LEXIS 2482 , modified, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

This section is separate and apart from the general obscenity statutes. —

This section was enacted by passage of Chapter 591 of the 1971 Session Laws, and is separate and apart from those statutes dealing with the dissemination of obscenity (G.S. 14-190.1 through 14-190.8), all of which were enacted by passage of Chapter 405 of the 1971 Session Laws. State v. King, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

This section did not preempt a county ordinance regulating the location of adult and sexually oriented businesses. Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780, 1998 N.C. App. LEXIS 554 (1998).

Conduct Is Not Required to Be “Obscene” or “Indecent”. —

This section, like its predecessors, simply declares the act of exposing one’s private parts in a public place in the presence of persons of the opposite sex, or permitting or aiding or abetting another in doing so, to be a misdemeanor. The statute does not use the term “obscene” and for that matter does not even require the act of exposing one’s private parts in public to be “indecent.” State v. King, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

Court Is Not Concerned with Definitions of “Obscene” and “Obscenity”. —

Since this section does not involve the concept of “obscenity” — the definition of which has given both the federal and State courts so much difficulty — the North Carolina court is not concerned with the many and often conflicting decisions attempting to define “obscene” or “obscenity.” State v. King, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

Taking Part in Immoral Show, etc., Is Covered by Obscenity Statutes. —

In 1971, the General Assembly amended the obscenity statutes and the indecent exposure statute. In amending the indecent exposure statute the prohibition against procuring or “taking part in any immoral show, exhibition or performance where indecent, immoral, or lewd dances are conducted in any booth, tent, room or other public or private place to which the public is invited . . .” was deleted. This proscription was placed in the obscenity statutes and is covered by G.S. 14-190.1 , particularly subdivision (2) of subsection (a) thereof. State v. King, 20 N.C. App. 505, 201 S.E.2d 724, 1974 N.C. App. LEXIS 2482 , modified, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

Viewers of Exposure Need Not Be Unwilling. —

There is nothing whatsoever in the present or former indecent exposure statutes that in any way requires the viewers of the exposure of one’s private parts to be unwilling observers. State v. King, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

Public Place. —

In a prosecution of defendant for indecent exposure in the presence of a minor, defendant was standing on his own property, but his exposure was in a “public place” because defendant was easily visible from a public road, from a shared driveway, and from his neighbor’s home. Therefore, the trial court did not err in denying defendant’s motion to dismiss. State v. Pugh, 244 N.C. App. 326, 780 S.E.2d 226, 2015 N.C. App. LEXIS 995 (2015).

An open parking lot of a business is a public place. State v. Streath, 73 N.C. App. 546, 327 S.E.2d 240, 1985 N.C. App. LEXIS 3318 , writ denied, 329 S.E.2d 402 (N.C. 1985).

Creek embankment was a “public place”; although located adjacent to the victims’ back yard, it was a place where children played, where anyone could go by walking through the back yard, and where no signs of a “No Trespassing” nature were posted. State v. Fusco, 136 N.C. App. 268, 523 S.E.2d 741, 1999 N.C. App. LEXIS 1377 (1999).

“In the Presence Of”. —

Evidence was sufficient for the jury to find that defendant committed exposure in the presence of a child because, at the time of the exposure, defendant was in defendant’s car along a road in front of the child’s house and exposed defendant to the child’s parent while the child was about twenty feet away. The proximity of the exposure to the child was sufficiently close that a jury could have found it was in the child’s presence. State v. Hoyle, 373 N.C. 454 , 838 S.E.2d 435, 2020 N.C. LEXIS 90 (2020).

Intentional exposure while sitting in an automobile in a public place constitutes exposure in a public place. State v. Streath, 73 N.C. App. 546, 327 S.E.2d 240, 1985 N.C. App. LEXIS 3318 , writ denied, 329 S.E.2d 402 (N.C. 1985).

Technological Aids. —

Although defendant argued that it was plain error for the trial court not to instruct the jury that defendant must have been in view of the public with the naked eye and without resort to technological aids such as telescopes and the like, there was absolutely no evidence of any technological aids used to view defendant in this case. State v. Pugh, 244 N.C. App. 326, 780 S.E.2d 226, 2015 N.C. App. LEXIS 995 (2015).

Private Parts. —

“Private parts” include the external organs of sex and excretion. State v. Fly, 348 N.C. 556 , 501 S.E.2d 656, 1998 N.C. LEXIS 329 (1998).

Buttocks Not Private Parts. —

Buttocks are not private parts within the meaning of this section. State v. Fly, 348 N.C. 556 , 501 S.E.2d 656, 1998 N.C. LEXIS 329 (1998).

“Mooning.” —

Evidence was sufficient to support a conviction under this section, where, as the defendant “mooned” the victim, he was bent over at the waist with his short pants at his ankles and with no other clothing on except a baseball cap, so that, even if the defendant did not see any of the defendant’s private parts, the jury could nonetheless find that they were exposed. State v. Fly, 348 N.C. 556 , 501 S.E.2d 656, 1998 N.C. LEXIS 329 (1998).

Victim testimony is not necessary to substantiate the charge of indecent exposure where other testimony established that defendant was exposing himself and that a female was present and could have seen had she looked. State v. Fusco, 136 N.C. App. 268, 523 S.E.2d 741, 1999 N.C. App. LEXIS 1377 (1999).

Defendant’s placing of the witness’ hand on his bare private parts, whether seen or not, necessarily involves exposure. State v. Streath, 73 N.C. App. 546, 327 S.E.2d 240, 1985 N.C. App. LEXIS 3318 , writ denied, 329 S.E.2d 402 (N.C. 1985).

Warrant Must Allege Exposure in Presence of Person of Opposite Sex. —

When one of the essential elements of the offense created by this section is that the exposure of the private parts be “in the presence of any other person or persons, of the opposite sex,” and the warrants fail to so charge, such omission is fatal, and the warrants must be quashed. State v. King, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

Aiding and Abetting. —

Both former G.S. 14-190 and this section clearly and expressly proscribe the conduct for which defendant was arrested, namely, aiding or abetting other persons in willfully exposing their private parts in the presence of other persons of the opposite sex and in a public place. State v. King, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

Where four females willfully exhibited their private parts to an audience of some seventy-five males in a public place, and defendant aided and abetted in such exposure, such conduct constituted a misdemeanor under this section. State v. King, 285 N.C. 305 , 204 S.E.2d 667, 1974 N.C. LEXIS 972 (1974).

Inclusion of a sentence focusing on viewability as part of the court’s overall instruction on the meaning of “public place” was not error. State v. Fusco, 136 N.C. App. 268, 523 S.E.2d 741, 1999 N.C. App. LEXIS 1377 (1999).

Jury instructions. —

Defendant was not entitled to an instruction requiring the jury to have found that the victim could have seen defendant’s exposed private part had the victim looked because it was sufficient for the instruction to have explained that the jury had to find beyond a reasonable doubt that the exposure was in the presence of another person. State v. Hoyle, 373 N.C. 454 , 838 S.E.2d 435, 2020 N.C. LEXIS 90 (2020).

§§ 14-190.10 through 14-190.12. [Repealed]

Repealed by Session Laws 1985, c. 703, s. 9.

Cross References.

As to offenses concerning minors, see now G.S. 14-190.13 to 14-190.20.

§ 14-190.13. Definitions for certain offenses concerning minors.

The following definitions apply to G.S. 14-190.14 , displaying material harmful to minors; G.S. 14-190.15 , disseminating or exhibiting to minors harmful material or performances; G.S. 14-190.16 , first degree sexual exploitation of a minor; G.S. 14-190.17 , second degree sexual exploitation of a minor; G.S. 14-190.17 A, third degree sexual exploitation of a minor.

  1. Harmful to Minors. — That quality of any material or performance that depicts sexually explicit nudity or sexual activity and that, taken as a whole, has the following characteristics:
    1. The average adult person applying contemporary community standards would find that the material or performance has a predominant tendency to appeal to a prurient interest of minors in sex; and
    2. The average adult person applying contemporary community standards would find that the depiction of sexually explicit nudity or sexual activity in the material or performance is patently offensive to prevailing standards in the adult community concerning what is suitable for minors; and
    3. The material or performance lacks serious literary, artistic, political, or scientific value for minors.
  2. Material. — Pictures, drawings, video recordings, films or other visual depictions or representations but not material consisting entirely of written words.
  3. Minor. — An individual who is less than 18 years old and is not married or judicially emancipated.
  4. Prostitution. — Engaging or offering to engage in sexual activity with or for another in exchange for anything of value.
  5. Sexual Activity. — Any of the following acts:
    1. Masturbation, whether done alone or with another human or an animal.
    2. Vaginal, anal, or oral intercourse, whether done with another human or with an animal.
    3. Touching, in an act of apparent sexual stimulation or sexual abuse, of the clothed or unclothed genitals, pubic area, or buttocks of another person or the clothed or unclothed breasts of a human female.
    4. An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a person clad in undergarments or in revealing or bizarre costume.
    5. Excretory functions; provided, however, that this sub-subdivision shall not apply to G.S. 14-190.17 A.
    6. The insertion of any part of a person’s body, other than the male sexual organ, or of any object into another person’s anus or vagina, except when done as part of a recognized medical procedure.
    7. The lascivious exhibition of the genitals or pubic area of any person.
  6. Sexually Explicit Nudity. — The showing of:
    1. Uncovered, or less than opaquely covered, human genitals, pubic area, or buttocks, or the nipple or any portion of the areola of the human female breast, except as provided in G.S. 14-190.9(b); or
    2. Covered human male genitals in a discernibly turgid state.

History. 1985, c. 703, s. 9; 1989 (Reg. Sess., 1990), c. 1022, s. 2; 1993, c. 301, s. 2; 2008-218, s. 1; 2013-368, s. 18.

Cross References.

As to duty of film and photographic print processor or computer technician to report film or computer images containing pictures of minors engaging in sexual activity, see G.S. 66-67.4 .

Effect of Amendments.

Session Laws 2008-218, s. 1, effective December 1, 2008, and applicable to offenses committed on or after that date, made a minor grammatical change in the introductory paragraph; and added subdivision (5)g.

Session Laws 2013-368, s. 18, effective October 1, 2013, deleted “G.S. 14-190.18, promoting prostitution of a minor; G.S. 14-190.19, participating in prostitution of a minor” following “a minor” at the end of the introductory paragraph. For applicability, see Editor’s note.

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which added this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

Section 14-190.17 and this section are not unconstitutionally vague and provide fair notice of their prohibitions. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Subdivision (5)c of this section is not substantially overbroad and comports with the requirement stated in New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982), that there must be limits placed on the category of sexual conduct. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

This section and G.S. 14-190.1 , 14-190.16, and 14-190.17 are constitutional as drawn; while potentially beyond constitutional bounds if improperly applied, these statutes are not so substantially overbroad as to require constitutional invalidation on their face. Cinema I Video, Inc. v. Thornburg, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

G.S. 14-1910.13 was held to be constitutional; the appellate court disagreed with defendant that the statutes were overbroad because they did not extend the images to minors which did not require a live minor for their production and because they prohibited material that was accepted by the community. State v. Howell, 169 N.C. App. 58, 609 S.E.2d 417, 2005 N.C. App. LEXIS 524 (2005).

Sexual Activity. —

Trial court did not err in defendant’s trial for first-degree sexual exploitation of a minor by refusing to instruct the jury in accordance with defendant’s request that the jury be instructed that the oral intercourse element of first-degree sexual exploitation of a minor involved penetration, however slight. State v. Fletcher, 370 N.C. 313 , 807 S.E.2d 528, 2017 N.C. LEXIS 948 (2017).

Denial of defendant’s motion to dismiss sexual exploitation charges was appropriate because defendant took a photograph of the minor victim representing the minor engaged in sexual activity as the victim was standing naked in the picture, except for the victim’s socks, in defendant’s bedroom, and, although the victim’s arms were crossed in front of the victim’s body and the victim was attempting to cover the victim’s pubic area with the victim’s hands, the victim’s pubic area was at least partially visible. State v. Corbett, 264 N.C. App. 93, 824 S.E.2d 875, 2019 N.C. App. LEXIS 115 (2019).

OPINIONS OF ATTORNEY GENERAL

Effective Date. — The portion of 1989 (Reg. Sess., 1990), c. 1022 which provided that c. 1022 is effective October 1, 1989, is unconstitutional and cannot be enforced. That defect, however, does not render the act unconstitutional. The effect is to make the act effective the day it was passed (July 27, 1990). See opinion of the Attorney General to Senator Connie Wilson, North Carolina General Assembly, 60 N.C. Op. Att'y Gen. 34 (1990).

§ 14-190.14. Displaying material harmful to minors.

  1. Offense. —  A person commits the offense of displaying material that is harmful to minors if, having custody, control, or supervision of a commercial establishment and knowing the character or content of the material, he displays material that is harmful to minors at that establishment so that it is open to view by minors as part of the invited general public. Material is not considered displayed under this section if the material is placed behind “blinder racks” that cover the lower two thirds of the material, is wrapped, is placed behind the counter, or is otherwise covered or located so that the portion that is harmful to minors is not open to the view of minors.
  2. Punishment. —  Violation of this section is a Class 2 misdemeanor. Each day’s violation of this section is a separate offense.

History. 1985, c. 703, s. 9; 1993, c. 539, s. 125; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which added this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

§ 14-190.15. Disseminating harmful material to minors; exhibiting harmful performances to minors.

  1. Disseminating Harmful Material. —  A person commits the offense of disseminating harmful material to minors if, with or without consideration and knowing the character or content of the material, he:
    1. Sells, furnishes, presents, or distributes to a minor material that is harmful to minors; or
    2. Allows a minor to review or peruse material that is harmful to minors.
  2. Exhibiting Harmful Performance. —  A person commits the offense of exhibiting a harmful performance to a minor if, with or without consideration and knowing the character or content of the performance, he allows a minor to view a live performance that is harmful to minors.
  3. Defenses. —  Except as provided in subdivision (3), a mistake of age is not a defense to a prosecution under this section. It is an affirmative defense to a prosecution under this section that:
    1. The defendant was a parent or legal guardian of the minor.
    2. The defendant was a school, church, museum, public library, governmental agency, medical clinic, or hospital carrying out its legitimate function; or an employee or agent of such an organization acting in that capacity and carrying out a legitimate duty of his employment.
    3. Before disseminating or exhibiting the harmful material or performance, the defendant requested and received a driver’s license, student identification card, or other official governmental or educational identification card or paper indicating that the minor to whom the material or performance was disseminated or exhibited was at least 18 years old, and the defendant reasonably believed the minor was at least 18 years old.
    4. The dissemination was made with the prior consent of a parent or guardian of the recipient.
  4. Punishment. —  Violation of this section is a Class 1 misdemeanor.

History. 1985, c. 703, s. 9; 1993, c. 539, s. 126; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which added this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

Evidence Sufficient to Withstand Motion to Dismiss. —

There was enough evidence that defendant provided obscene and harmful materials to minors to carry those charges to the jury; thus, the trial court’s denial of defendant’s motion to dismiss the charges of disseminating harmful material to minors was proper. State v. Hill, 179 N.C. App. 1, 632 S.E.2d 777, 2006 N.C. App. LEXIS 1636 (2006).

§ 14-190.16. First degree sexual exploitation of a minor.

  1. Offense. —  A person commits the offense of first degree sexual exploitation of a minor if, knowing the character or content of the material or performance, he:
    1. Uses, employs, induces, coerces, encourages, or facilitates a minor to engage in or assist others to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
    2. Permits a minor under his custody or control to engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
    3. Transports or finances the transportation of a minor through or across this State with the intent that the minor engage in sexual activity for a live performance or for the purpose of producing material that contains a visual representation depicting this activity; or
    4. Records, photographs, films, develops, or duplicates for sale or pecuniary gain material that contains a visual representation depicting a minor engaged in sexual activity.
  2. Inference. —  In a prosecution under this section, the trier of fact may infer that a participant in sexual activity whom material through its title, text, visual representations, or otherwise represents or depicts as a minor is a minor.
  3. Mistake of Age. —  Mistake of age is not a defense to a prosecution under this section.
  4. Punishment and Sentencing. —  Violation of this section is a Class C felony.

History. 1985, c. 703, s. 9; 1993, c. 539, s. 1196; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 507, s. 19.5(o); 2008-117, s. 3; 2008-218, s. 2.

Effect of Amendments.

Session Laws 2008-117, s. 3, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “Class C felony” for “Class D felony” in subsection (d).

Session Laws 2008-218, s. 2, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “Class C felony” for “Class D felony” in subsection (d).

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

For comment, “The Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which added this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

This section and G.S. 14-190.1 , 14-190.13 and 14-190.17 are constitutional as drawn; while potentially beyond constitutional bounds if improperly applied, these statutes are not so substantially overbroad as to require constitutional invalidation on their face. Cinema I Video, Inc. v. Thornburg, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

The State has an interest of surpassing importance in the health, safety and welfare of minors; this section and G.S. 14-190.17 are sufficiently narrowly tailored toward said interests and require the exploitation of a live minor to sustain convictions thereunder. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Elements of Offense. —

Although the trial court erred by failing to sustain defendant’s objection to the prosecution’s argument that a conviction for first-degree sexual exploitation of a minor could rest upon digitally altered images, rather than evidence of some sort of actual sexual activity, the error was cured by the trial court’s correct jury instructions on the issue. State v. Fletcher, 370 N.C. 313 , 807 S.E.2d 528, 2017 N.C. LEXIS 948 (2017).

Evidence. —

Pictures of a minor could not support a conviction of first degree sexual exploitation of a minor; photograph of the minor merely had the minor’s hand in proximity to the minor’s crotch area, and a picture depicting defendant’s hand showed defendant touching the minor’s shorts, not the minor’s body. State v. Ligon, 206 N.C. App. 458, 697 S.E.2d 481, 2010 N.C. App. LEXIS 1548 (2010).

Denial of defendant’s motion to dismiss sexual exploitation charges was appropriate because defendant took a photograph of the minor victim representing the minor engaged in sexual activity as the victim was standing naked in the picture, except for the victim’s socks, in defendant’s bedroom, and, although the victim’s arms were crossed in front of the victim’s body and the victim was attempting to cover the victim’s pubic area with the victim’s hands, the victim’s pubic area was at least partially visible. State v. Corbett, 264 N.C. App. 93, 824 S.E.2d 875, 2019 N.C. App. LEXIS 115 (2019).

Prior Restraints. —

The proscriptions contained in this section and G.S. 14-190.17 do not constitute prior restraints. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

There is a scienter requirement in this section and G.S. 14-190.17 . Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Visual Representation. —

When this section and G.S. 14-190.17 refer to a visual representation of a minor, they are referring to a representation of a live person under 18 years of age. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Jury Instructions. —

Trial court did not err in defendant’s trial for first-degree sexual exploitation of a minor by refusing to instruct the jury in accordance with defendant’s request that the jury be instructed that the oral intercourse element of first-degree sexual exploitation of a minor involved penetration, however slight. State v. Fletcher, 370 N.C. 313 , 807 S.E.2d 528, 2017 N.C. LEXIS 948 (2017).

§ 14-190.17. Second degree sexual exploitation of a minor.

  1. Offense. —  A person commits the offense of second degree sexual exploitation of a minor if, knowing the character or content of the material, he:
    1. Records, photographs, films, develops, or duplicates material that contains a visual representation of a minor engaged in sexual activity; or
    2. Distributes, transports, exhibits, receives, sells, purchases, exchanges, or solicits material that contains a visual representation of a minor engaged in sexual activity.
  2. Inference. —  In a prosecution under this section, the trier of fact may infer that a participant in sexual activity whom material through its title, text, visual representations or otherwise represents or depicts as a minor is a minor.
  3. Mistake of Age. —  Mistake of age is not a defense to a prosecution under this section.
  4. Punishment and Sentencing. —  Violation of this section is a Class E felony.

History. 1985, c. 703, s. 9; 1993, c. 539, s. 1197; 1994, Ex. Sess., c. 24, s. 14(c); 2008-117, s. 4; 2008-218, s. 3.

Effect of Amendments.

Session Laws 2008-117, s. 4, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “Class E felony” for “Class F felony” in subsection (d).

Session Laws 2008-218, s. 3, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “Class E felony” for “Class F felony” in subsection (d).

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which added this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

This section and G.S. 14-190.13 are not unconstitutionally vague and provide fair notice of their prohibitions. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

This section and G.S. 14-190.1 , 14-190.13 and 14-190.16 are constitutional as drawn; while potentially beyond constitutional bounds if improperly applied, these statutes are not so substantially overbroad as to require constitutional invalidation on their face. Cinema I Video, Inc. v. Thornburg, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Double Jeopardy. —

Possessing child pornography images and receiving the images did not amount to the same offense, and punishing defendant for exploitation of a minor under G.S. 14-190.17 for both possessing and receiving the same illicit images did not violate defendant’s double jeopardy rights. State v. Anderson, 194 N.C. App. 292, 669 S.E.2d 793, 2008 N.C. App. LEXIS 2237 (2008).

The State has an interest of surpassing importance in the health, safety and welfare of minors; G.S. 14-190.16 and this section are sufficiently narrowly tailored toward said interests and require the exploitation of a live minor to sustain convictions thereunder. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Prior Restraints. —

The proscriptions contained in G.S. 14-190.16 and this section do not constitute prior restraints. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

There is a scienter requirement in G.S. 14-190.16 and this section. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Visual Representation. —

When G.S. 14-190.16 and this section refer to a visual representation of a minor, they are referring to a representation of a live person under 18 years of age. Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305, 1986 N.C. App. LEXIS 2755 (1986), aff'd, 320 N.C. 485 , 358 S.E.2d 383, 1987 N.C. LEXIS 2256 (1987).

Evidence Held Sufficient. —

Sufficient evidence supported defendant’s convictions for exploitation of a minor under G.S. 14-190.17 and secret peeping under G.S. 14-202 as defendant used defendant’s computer to download and view movies of minors engaged in sexual activity, and placed a hidden camera in the room of defendant’s stepdaughter to observe her. State v. Anderson, 194 N.C. App. 292, 669 S.E.2d 793, 2008 N.C. App. LEXIS 2237 (2008).

Denial of defendant’s motion to dismiss sexual exploitation charges was appropriate because defendant took a photograph of the minor victim representing the minor engaged in sexual activity as the victim was standing naked in the picture, except for the victim’s socks, in defendant’s bedroom, and, although the victim’s arms were crossed in front of the victim’s body and the victim was attempting to cover the victim’s pubic area with the victim’s hands, the victim’s pubic area was at least partially visible. State v. Corbett, 264 N.C. App. 93, 824 S.E.2d 875, 2019 N.C. App. LEXIS 115 (2019).

Charges Properly Consolidated for Trial. —

Defendant exhibited a similar modus operandi for G.S. 15A-926(a) purposes in the exploitation of a minor for the possession of computer files containing child pornography and exploitation of a minor for receiving those files under G.S. 14-190.17 , and secret peeping under G.S. 14-202 crimes charged as defendant used the same personal computer to view pictures of young women; the two types of offenses shared a transactional connection, and the offenses were properly consolidated for trial as the secret peeping charge involved placing a camera in the room of defendant’s stepdaughter and using the computer to view those images. State v. Anderson, 194 N.C. App. 292, 669 S.E.2d 793, 2008 N.C. App. LEXIS 2237 (2008).

Jury Instruction Proper. —

Trial court’s instruction on the duplication theory of guilt as to second degree sexual exploitation of a minor was proper, as it was supported by testimony that when an image is downloaded from a file sharing website or other remote site, the original image remained in its original location and a separate copy is created and stored on the machine being used. State v. Williams, 232 N.C. App. 152, 754 S.E.2d 418, 2014 N.C. App. LEXIS 56 (2014).

New Trial Denied. —

Defendant was denied a new trial on the sexual exploitation of a minor convictions because defendant’s age was not an element of that offense. State v. Diaz, 256 N.C. App. 528, 808 S.E.2d 450, 2017 N.C. App. LEXIS 967 (2017), aff'd in part and rev'd in part, 372 N.C. 493 , 831 S.E.2d 532, 2019 N.C. LEXIS 790 (2019).

§ 14-190.17A. Third degree sexual exploitation of a minor.

  1. Offense. —  A person commits the offense of third degree sexual exploitation of a minor if, knowing the character or content of the material, he possesses material that contains a visual representation of a minor engaging in sexual activity.
  2. Inference. —  In a prosecution under this section, the trier of fact may infer that a participant in sexual activity whom material through its title, text, visual representations or otherwise represents or depicts as a minor is a minor.
  3. Mistake of Age. —  Mistake of age is not a defense to a prosecution under this section.
  4. Punishment and Sentencing. —  Violation of this section is a Class H felony.

History. 1989 (Reg. Sess., 1990), c. 1022, s. 1; 1993, c. 539, s. 1198; 1994, Ex. Sess., c. 24, s. 14(c); 2008-117, s. 5; 2008-218, s. 4.

Effect of Amendments.

Session Laws 2008-117, s. 5, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “Class H felony” for “Class I felony” in subsection (d).

Session Laws 2008-218, s. 4, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “Class H felony” for “Class I felony” in subsection (d).

CASE NOTES

Plain language of G.S. 14-190.17 A(a) supported multiple convictions for sexual exploitation where, inter alia, each of the 200 photographs on defendant’s computer had been opened and saved on the hard drive; it was of no consequence that they had been downloaded as five zip files. State v. Howell, 169 N.C. App. 58, 609 S.E.2d 417, 2005 N.C. App. LEXIS 524 (2005).

Evidence Sufficient to Withstand Motion to Dismiss. —

Denial of defendant’s motion to dismiss was not erroneous because the State presented sufficient evidence to submit the charge of third degree sexual exploitation of a minor to the jury even if G.S. 14-190.17 A required knowledge of both the character and content of the material as the jury was allowed to review all twelve computer files to determine if the names reflected the materials’ content, and there was sufficient evidence to support a finding that defendant possessed the material in question, including the fact that the computer and a receipt for its purchase by defendant were found at defendant’s place of business. State v. Riffe, 191 N.C. App. 86, 661 S.E.2d 899, 2008 N.C. App. LEXIS 1166 (2008).

Conditions on Appeal of Probationary Sentence. —

Trial court acted properly in imposing conditions of release upon a sentence of probation on defendant’s convictions of third-degree sexual exploitation of a minor, G.S. 14-190.17 A, which had been stayed pending appeal pursuant to G.S. 15A-1451(a)(4); the plain language of G.S. 15A-536 indicated that “release” meant “to set or make free” from the supervision and control of the court, as well as from imprisonment, and to apply the statute only where the defendant was in or facing custody would lead to the absurd result that the court would have no oversight over defendants with probationary sentences on appeal. State v. Howell, 166 N.C. App. 751, 603 S.E.2d 901, 2004 N.C. App. LEXIS 2021 (2004).

OPINIONS OF ATTORNEY GENERAL

Effective Date. — The portion of 1989 (Reg. Sess., 1990), c. 1022 which provides that c. 1022 is effective October 1, 1989, is unconstitutional and cannot be enforced. That defect, however, does not render the act unconstitutional. The effect is to make the act effective the day it was passed (July 27, 1990). See opinion of the Attorney General to Senator Connie Wilson, North Carolina General Assembly, 60 N.C. Op. Att'y Gen. 34 (1990).

§§ 14-190.18, 14-190.19. [Repealed]

Repealed by Session Laws 2013-368, s. 4, effective October 1, 2013, and applicable to offenses committed on or after that date.

History. S. 14-190.18; 1985, c. 703, s. 9; 1993, c. 539, s. 1199; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 507, s. 19.5(p); 2008-117, s. 6; repealed by 2013-368, s. 4, effective October 1, 2013. s. 14-190.19; 1985, c. 703, s. 9; 1993, c. 539, s. 1200; 1994, Ex. Sess., c. 24, s. 14(c); repealed by 2013-368, s. 4, effective October 1, 2013.

Editor’s Note.

Former G.S. 14-190.18 pertained to promoting prostitution of a minor. For present similar provisions, see G.S. 14-205.3 . Former G.S. 14-190-19 pertained to participating in prostitution of a minor. For present provisions relating to patronizing a prostitute, see G.S. 14-205.2 .

§ 14-190.20. Warrants for obscenity offenses.

A search warrant or criminal process for a violation of G.S. 14-190.1 through 14-190.5 may be issued only upon the request of a prosecutor.

History. 1985, c. 703, s. 9.1.

Legal Periodicals.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Assessing the Constitutionality of North Carolina’s New Obscenity Law,” see 65 N.C.L. Rev. 400 (1987).

CASE NOTES

Constitutionality. —

The federal district court would abstain from determining the constitutionality of North Carolina House Bill No. 1171 (Session Laws 1985, c. 703), enacted in 1985, which added this section, until the parties could obtain a resolution of this issue in the North Carolina General Courts of Justice. Floyd v. Thornburg, 619 F. Supp. 756, 1985 U.S. Dist. LEXIS 15257 (W.D.N.C. 1985).

§ 14-191. [Repealed]

Repealed by Session Laws 1971, c. 591, s. 4.

§§ 14-192, 14-193. [Repealed]

Repealed by Session Laws 1971, c. 405, s. 4.

§ 14-194. [Repealed]

Repealed by Session Laws 1971, c. 591, s. 4.

§ 14-195. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(11).

§ 14-196. Using profane, indecent or threatening language to any person over telephone; annoying or harassing by repeated telephoning or making false statements over telephone.

  1. It shall be unlawful for any person:
    1. To use in telephonic communications any words or language of a profane, vulgar, lewd, lascivious or indecent character, nature or connotation;
    2. To use in telephonic communications any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse, or dependent or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person;
    3. To telephone another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called number;
    4. To make a telephone call and fail to hang up or disengage the connection with the intent to disrupt the service of another;
    5. To telephone another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct or criminal conduct of the person telephoned or of any member of his family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass;
    6. To knowingly permit any telephone under his control to be used for any purpose prohibited by this section.
  2. Any of the above offenses may be deemed to have been committed at either the place at which the telephone call or calls were made or at the place where the telephone call or calls were received. For purposes of this section, the term “telephonic communications” shall include communications made or received by way of a telephone answering machine or recorder, telefacsimile machine, or computer modem.
  3. Anyone violating the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1913, c. 35; 1915, c. 41; C.S., s. 4351; 1967, c. 833, s. 1; 1989, c. 305; 1993, c. 539, s. 128; 1994, Ex. Sess., c. 24, s. 14(c); 1999-262, s. 1; 2000-125, s. 2.

Legal Periodicals.

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

For note on intentional infliction of emotional distress, see 18 Wake Forest L. Rev. 624 (1982).

CASE NOTES

Constitutionality. —

Subdivision (a)(1) of this section is unconstitutionally overbroad. Radford v. Webb, 446 F. Supp. 608, 1978 U.S. Dist. LEXIS 19476 (W.D.N.C. 1978), aff'd, 596 F.2d 1205, 1979 U.S. App. LEXIS 15156 (4th Cir. 1979). But see In re Simmons, 24 N.C. App. 28, 210 S.E.2d 84, 1974 N.C. App. LEXIS 1921 (1974).

Use of one’s telephone clearly involves substantial privacy interests which the State may recognize and protect. Subdivision (a)(1) seeks to protect that interest from an invasion made in an essentially intolerable manner, and the means chosen by the legislature were both appropriate and sufficiently narrowed to achieving the legitimate ends sought to be attained. In re Simmons, 24 N.C. App. 28, 210 S.E.2d 84, 1974 N.C. App. LEXIS 1921 (1974). But see Radford v. Webb, 446 F. Supp. 608, 1978 U.S. Dist. LEXIS 19476 (W.D.N.C. 1978), aff'd, 596 F.2d 1205, 1979 U.S. App. LEXIS 15156 (4th Cir. 1979).

Because subdivision (a)(3) of this section prohibits conduct rather than speech, it survives constitutional challenge. Statutes prohibiting annoying telephoning were directed at the conduct of using telephones to annoy, offend, terrify or harass others and not directed at prohibiting the communication of thoughts or ideas. State v. Camp, 59 N.C. App. 38, 295 S.E.2d 766, 1982 N.C. App. LEXIS 2859 (1982).

Subdivision (a)(3) of this section is not unconstitutionally vague, because the statute adequately warns of the activity it prohibits. State v. Camp, 59 N.C. App. 38, 295 S.E.2d 766, 1982 N.C. App. LEXIS 2859 (1982).

Essential elements of a violation of subdivision (a)(3) of this section are (1) repeatedly telephoning another person, (2) with the intent or purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called number. State v. Camp, 59 N.C. App. 38, 295 S.E.2d 766, 1982 N.C. App. LEXIS 2859 (1982); State v. Boone, 79 N.C. App. 746, 340 S.E.2d 527, 1986 N.C. App. LEXIS 2115 , cert. denied, 317 N.C. 708 , 347 S.E.2d 442, 1986 N.C. LEXIS 2481 (1986).

Subdivision (a)(3) of this section does not require more than one call per day. State v. Boone, 79 N.C. App. 746, 340 S.E.2d 527, 1986 N.C. App. LEXIS 2115 , cert. denied, 317 N.C. 708 , 347 S.E.2d 442, 1986 N.C. LEXIS 2481 (1986).

The term “repeatedly” does not ordinarily connote a recurrence within a 24-hour period. State v. Boone, 79 N.C. App. 746, 340 S.E.2d 527, 1986 N.C. App. LEXIS 2115 , cert. denied, 317 N.C. 708 , 347 S.E.2d 442, 1986 N.C. LEXIS 2481 (1986).

There was no fatal variance between warrant charging repeated calls to victim on or about March 29, 1984, and on or about April 5, 1984, and evidence indicating that defendant made more than one call to victim’s apartment on these dates, even though victim did not answer more than one call each date. State v. Boone, 79 N.C. App. 746, 340 S.E.2d 527, 1986 N.C. App. LEXIS 2115 , cert. denied, 317 N.C. 708 , 347 S.E.2d 442, 1986 N.C. LEXIS 2481 (1986).

“Another” does not refer only to “another person.” A sheriff’s department is a person under subdivision (a)(3) of this section. The fact that defendant called more than one employee does not make the statute inapplicable, because G.S. 12-3(1) provides that “Every word importing the singular number only shall extend and be applied to several persons or things, as well as to one person or thing.” State v. Camp, 59 N.C. App. 38, 295 S.E.2d 766, 1982 N.C. App. LEXIS 2859 (1982).

Consent by the victim is not an essential element bearing on the offense. State v. Coleman, 270 N.C. 357 , 154 S.E.2d 485, 1967 N.C. LEXIS 1358 (1967) (decided under former G.S. 14-196.1 ).

Threat to take one’s life or to beat one falls within this section’s proscription against using language in telephone communications threatening to inflict bodily harm. State v. Jacobs, 25 N.C. App. 500, 214 S.E.2d 254, 1975 N.C. App. LEXIS 2310 , cert. denied, 287 N.C. 666 , 216 S.E.2d 909, 1975 N.C. LEXIS 1183 (1975).

Failure of Court to Define “Annoy” and “Harass”. —

See State v. Godwin, 267 N.C. 216 , 147 S.E.2d 890, 1966 N.C. LEXIS 1012 (1966) (decided under former G.S. 14-196.1 ).

Tape recordings allegedly containing telephone conversations by the defendant with the prosecuting witness made by a recorder attached to the witness’s telephone are not incompetent in prosecuting for annoying a female by repeated telephoning because they violate the North Carolina Wiretapping Statute (G.S. 14-155) and also G.S. 14-372 and former G.S. 15-27. These statutes were not enacted to prevent introduction of evidence obtained in such a case and are not relevant in such prosecution. State v. Godwin, 267 N.C. 216 , 147 S.E.2d 890, 1966 N.C. LEXIS 1012 (1966) (decided under former G.S. 14-196.1 ).

The State laid the requisite foundation for the admissibility of tape recordings allegedly containing telephone conversations by the defendant with the prosecuting witness where the witness identified them as being the voice of the defendant, and stated that they were a fair and accurate representation of the conversations she had with the defendant. State v. Godwin, 267 N.C. 216 , 147 S.E.2d 890, 1966 N.C. LEXIS 1012 (1966) (decided under former G.S. 14-196.1 ).

Evidence of Intent. —

It is competent for the purpose of showing the intent of the defendant and her attitude toward the prosecuting witness for the court to permit the witness to testify that the defendant had attempted to block her car in the parking lot of the supermarket, that she had frequently followed her to such places as the hospital, school, etc., and would cut her car in front of the witness’s at least once a week, and sometimes more than that. Her conduct in blocking the witness’s car and cutting in front of it showed the defendant’s intent to harass, annoy, and molest her and is competent as interpreting the reasons for her frequent telephone calls which were alleged to be for the same purpose. State v. Godwin, 267 N.C. 216 , 147 S.E.2d 890, 1966 N.C. LEXIS 1012 (1966) (decided under former G.S. 14-196.1 ).

Evidence of Contents of Calls Admissible. —

In a prosecution charging defendant with making harassing, embarrassing and annoying telephone calls in violation of subdivision (a)(3) of this section, the actual contents of the statements attributed to defendant were relevant to show whether the intent of the telephone calls was to abuse, annoy, threaten, terrify, harass or embarrass the victims of the calls, and the trial court did not err in allowing witnesses to testify about the actual contents of the calls. State v. Boone, 79 N.C. App. 746, 340 S.E.2d 527, 1986 N.C. App. LEXIS 2115 , cert. denied, 317 N.C. 708 , 347 S.E.2d 442, 1986 N.C. LEXIS 2481 (1986).

Entrapment Not Shown. —

Where police placed a want ad in the newspapers similar to ads which had been placed by women who subsequently received obscene telephone calls, and used an electronic device to identify the telephone number of the caller, they merely set a trap to catch defendant in the execution of a crime which had its genesis in his own mind, and the defense of entrapment was not available to him in a prosecution for violating former G.S. 14-196.1 . State v. Coleman, 270 N.C. 357 , 154 S.E.2d 485, 1967 N.C. LEXIS 1358 (1967).

Where, despite warnings, defendant continued telephoning the sheriff’s department, threatening to shoot the blue lights off of patrol cars, calling the deputies and sheriff names, and using curse words, etc., these calls were not protected speech. The content and number of telephone calls defendant placed supported the conclusion that defendant intended to annoy, harass, and threaten employees of the sheriff’s department. This conduct was not constitutionally protected. State v. Camp, 59 N.C. App. 38, 295 S.E.2d 766, 1982 N.C. App. LEXIS 2859 (1982).

Right to Counsel. —

A warrant charging a violation of this section charges a serious offense, entitling defendant to the assistance of legal counsel. State v. Best, 5 N.C. App. 379, 168 S.E.2d 433, 1969 N.C. App. LEXIS 1348 (1969).

§§ 14-196.1, 14-196.2. [Repealed]

Repealed by Session Laws 1967, c. 833, s. 3.

§ 14-196.3. Cyberstalking. [Effective until January 1, 2023]

  1. The following definitions apply in this section:
    1. Electronic communication. — Any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by a wire, radio, computer, electromagnetic, photoelectric, or photo-optical system.
    2. Electronic mail. — The transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person.
    3. Electronic tracking device. — An electronic or mechanical device that permits a person to remotely determine or track the position and movement of another person.
    4. Fleet vehicle. — Any of the following: (i) one or more motor vehicles owned by a single entity and operated by employees or agents of the entity for business or government purposes, (ii) motor vehicles held for lease or rental to the general public, or (iii) motor vehicles held for sale, or used as demonstrators, test vehicles, or loaner vehicles, by motor vehicle dealers.
  2. It is unlawful for a person to:
    1. Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
    2. Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person.
    3. Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person’s family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass.
    4. Knowingly permit an electronic communication device under the person’s control to be used for any purpose prohibited by this section.
    5. Knowingly install, place, or use an electronic tracking device without consent, or cause an electronic tracking device to be installed, placed, or used without consent, to track the location of any person. The provisions of this subdivision do not apply to the installation, placement, or use of an electronic tracking device by any of the following:
      1. A law enforcement officer, judicial officer, probation or parole officer, or employee of the Division of Corrections, Department of Public Safety, when any such person is engaged in the lawful performance of official duties and in accordance with State or federal law.
      2. The owner or lessee of any vehicle on which the owner or lessee installs, places, or uses an electronic tracking device, unless the owner or lessee is subject to (i) a domestic violence protective order under Chapter 50B of the General Statutes or (ii) any court order that orders the owner or lessee not to assault, threaten, harass, follow, or contact a driver or occupant of the vehicle.
      3. A legal guardian for a disabled adult, as defined in G.S. 108A-101(d), or a legally authorized individual or organization designated to provide protective services to a disabled adult pursuant to G.S. 108A-105(c), when the electronic tracking device is installed, placed, or used to track the location of the disabled adult for which the person is a legal guardian or the individual or organization is designated to provide protective services.
      4. The owner of fleet vehicles, when tracking such vehicles.
      5. A creditor or other secured party under a retail installment agreement involving the sale of a motor vehicle or the lessor under a retail lease of a motor vehicle, and any assignee or successor in interest to that creditor, secured party, or lessor, when tracking a motor vehicle identified as security under the retail installment sales agreement or leased pursuant to a retail lease agreement, including the installation, placement, or use of an electronic tracking device to locate and remotely disable the motor vehicle, with the express written consent of the purchaser, borrower, or lessee of the motor vehicle.
      6. The installation, placement, or use of an electronic tracking device authorized by an order of a State or federal court.
      7. A motor vehicle manufacturer, its subsidiary, or its affiliate that installs or uses an electronic tracking device in conjunction with providing a vehicle subscription telematics service, provided that the customer subscribes or consents to that service.
      8. A parent or legal guardian of a minor when the electronic tracking device is installed, placed, or used to track the location of that minor unless the parent or legal guardian is subject to a domestic violence protective order under Chapter 50B of the General Statutes or any court order that orders the parent or legal guardian not to assault, threaten, harass, follow, or contact that minor or that minor’s parent, legal guardian, custodian, or caretaker as defined in G.S. 7B-101 .
      9. An employer, when providing a communication device to an employee or contractor for use in connection with his or her work for the employer.
      10. A business, if the tracking is incident to the provision of a product or service requested by the person, except as limited in sub-subdivision k. of this subdivision.
      11. A private detective or private investigator licensed under Chapter 74C of the General Statutes, provided that (i) the tracking is pursuant to authority under G.S. 74C-3(a)(8), (ii) the tracking is not otherwise contrary to law, and (iii) the person being tracked is not under the protection of a domestic violence protective order under Chapter 50B of the General Statutes or any other court order that protects against assault, threat, harassment, following, or contact.
  3. Any offense under this section committed by the use of electronic mail or electronic communication may be deemed to have been committed where the electronic mail or electronic communication was originally sent, originally received in this State, or first viewed by any person in this State.
  4. Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor.
  5. This section does not apply to any peaceable, nonviolent, or nonthreatening activity intended to express political views or to provide lawful information to others. This section shall not be construed to impair any constitutionally protected activity, including speech, protest, or assembly.

History. 2000-125, s. 1; 2000-140, s. 91; 2015-282, s. 1.

Editor’s Note.

As enacted by Session Laws 2000-125, the section was assigned to Article 35 of Chapter 14; Session Laws 2000-140 assigned the section to Article 26.

Effect of Amendments.

Session Laws 2015-282, s. 1, effective December 1, 2015, added subdivisions (a)(3), (4), and (b)(5). For applicability, see editor’s note.

§ 14-196.3. Cyberstalking. [Effective January 1, 2023]

  1. The following definitions apply in this section:
    1. Electronic communication. — Any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by a wire, radio, computer, electromagnetic, photoelectric, or photo-optical system.
    2. Electronic mail. — The transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person.
    3. Electronic tracking device. — An electronic or mechanical device that permits a person to remotely determine or track the position and movement of another person.
    4. Fleet vehicle. — Any of the following: (i) one or more motor vehicles owned by a single entity and operated by employees or agents of the entity for business or government purposes, (ii) motor vehicles held for lease or rental to the general public, or (iii) motor vehicles held for sale, or used as demonstrators, test vehicles, or loaner vehicles, by motor vehicle dealers.
  2. It is unlawful for a person to:
    1. Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
    2. Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person.
    3. Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person’s family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass.
    4. Knowingly permit an electronic communication device under the person’s control to be used for any purpose prohibited by this section.
    5. Knowingly install, place, or use an electronic tracking device without consent, or cause an electronic tracking device to be installed, placed, or used without consent, to track the location of any person. The provisions of this subdivision do not apply to the installation, placement, or use of an electronic tracking device by any of the following:
      1. A law enforcement officer, judicial officer, probation or parole officer, or employee of the Division of Prisons of the Department of Adult Correction, when any such person is engaged in the lawful performance of official duties and in accordance with State or federal law.
      2. The owner or lessee of any vehicle on which the owner or lessee installs, places, or uses an electronic tracking device, unless the owner or lessee is subject to (i) a domestic violence protective order under Chapter 50B of the General Statutes or (ii) any court order that orders the owner or lessee not to assault, threaten, harass, follow, or contact a driver or occupant of the vehicle.
      3. A legal guardian for a disabled adult, as defined in G.S. 108A-101(d), or a legally authorized individual or organization designated to provide protective services to a disabled adult pursuant to G.S. 108A-105(c), when the electronic tracking device is installed, placed, or used to track the location of the disabled adult for which the person is a legal guardian or the individual or organization is designated to provide protective services.
      4. The owner of fleet vehicles, when tracking such vehicles.
      5. A creditor or other secured party under a retail installment agreement involving the sale of a motor vehicle or the lessor under a retail lease of a motor vehicle, and any assignee or successor in interest to that creditor, secured party, or lessor, when tracking a motor vehicle identified as security under the retail installment sales agreement or leased pursuant to a retail lease agreement, including the installation, placement, or use of an electronic tracking device to locate and remotely disable the motor vehicle, with the express written consent of the purchaser, borrower, or lessee of the motor vehicle.
      6. The installation, placement, or use of an electronic tracking device authorized by an order of a State or federal court.
      7. A motor vehicle manufacturer, its subsidiary, or its affiliate that installs or uses an electronic tracking device in conjunction with providing a vehicle subscription telematics service, provided that the customer subscribes or consents to that service.
      8. A parent or legal guardian of a minor when the electronic tracking device is installed, placed, or used to track the location of that minor unless the parent or legal guardian is subject to a domestic violence protective order under Chapter 50B of the General Statutes or any court order that orders the parent or legal guardian not to assault, threaten, harass, follow, or contact that minor or that minor’s parent, legal guardian, custodian, or caretaker as defined in G.S. 7B-101 .
      9. An employer, when providing a communication device to an employee or contractor for use in connection with his or her work for the employer.
      10. A business, if the tracking is incident to the provision of a product or service requested by the person, except as limited in sub-subdivision k. of this subdivision.
      11. A private detective or private investigator licensed under Chapter 74C of the General Statutes, provided that (i) the tracking is pursuant to authority under G.S. 74C-3(a)(8), (ii) the tracking is not otherwise contrary to law, and (iii) the person being tracked is not under the protection of a domestic violence protective order under Chapter 50B of the General Statutes or any other court order that protects against assault, threat, harassment, following, or contact.
  3. Any offense under this section committed by the use of electronic mail or electronic communication may be deemed to have been committed where the electronic mail or electronic communication was originally sent, originally received in this State, or first viewed by any person in this State.
  4. Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor.
  5. This section does not apply to any peaceable, nonviolent, or nonthreatening activity intended to express political views or to provide lawful information to others. This section shall not be construed to impair any constitutionally protected activity, including speech, protest, or assembly.

History. 2000-125, s. 1; 2000-140, s. 91; 2015-282, s. 1; 2021-180, s. 19C.9(hh).

Editor’s Note.

As enacted by Session Laws 2000-125, the section was assigned to Article 35 of Chapter 14; Session Laws 2000-140 assigned the section to Article 26.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to sub-subdivision (b)(5)a. of this section by Session Laws 2021-180, s. 19C.9(hh), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2015-282, s. 1, effective December 1, 2015, added subdivisions (a)(3), (4), and (b)(5). For applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(hh), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Corrections, Department of Public Safety” in sub-subdivision (b)(5)a. For effective date and applicability, see editor's note.

§ 14-197. [Repealed]

Repealed by Session Laws 2015-286, s. 1.1(1), effective October 22, 2015.

History. 1913, c. 40; C.S., s. 4352; Pub. Loc. Ex. Sess., 1924, c. 65; 1933, c. 309; 1937, c. 9; 1939, c. 73; 1945, c. 398; 1947, cc. 144, 959; 1949, c. 845; 1957, c. 348; 1959, c. 733; 1963, cc. 39, 123; 1969, c. 300; 1971, c. 718; 1973, cc. 120, 233; 1993, c. 539, s. 129; 1994, Ex. Sess., c. 24, s. 14(c); Repealed by 2015-286, s. 1.1(1), effective October 22, 2015.

Editor’s Note.

Former G.S. 14-197 pertained to counties being exempt from use of profane or indecent language on public highways.

CASE NOTES

Sufficiency of Warrant or Indictment. —

A bill of indictment charging that defendant “unlawfully and willfully did appear in a public place in a rude and disorderly manner and did use profane and indecent language in the presence of two or more persons” was insufficient to charge a violation of this section in failing to charge that the indecent or profane language was spoken on a public road or highway and in a loud and boisterous manner. State v. Smith, 262 N.C. 472 , 137 S.E.2d 819, 1964 N.C. LEXIS 662 (1964).

A warrant charging that defendant unlawfully and willfully violated the laws of North Carolina “by disorderly conduct by using profane and indecent language” was insufficient to charge the statutory crime proscribed by this section, since it failed to charge that defendant used the profane language (1) on a public road or highway, (2) in the hearing of two or more persons, or (3) in a loud and boisterous manner. State v. Thorne, 238 N.C. 392 , 78 S.E.2d 140, 1953 N.C. LEXIS 454 (1953).

§ 14-198. [Repealed]

Repealed by Session Laws 1975, c. 402.

§ 14-199. Obstructing way to places of public worship.

If any person shall maliciously stop up or obstruct the way leading to any place of public worship, or to any spring or well commonly used by the congregation, he shall be guilty of a Class 2 misdemeanor.

History. 1785, c. 241, P.R; R.C., c. 97, s. 5; Code, s. 3669; Rev., s. 3776; C.S., s. 4354; 1945, c. 635; 1969, c. 1224, s. 1; 1993, c. 539, s. 130; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to procedure for laying out church roads, see G.S. 136-71 .

§§ 14-200, 14-201. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, ss. 72(9), 72(10).

§ 14-202. Secretly peeping into room occupied by another person. [Effective until January 1, 2023]

  1. Any person who shall peep secretly into any room occupied by another person shall be guilty of a Class 1 misdemeanor.

    (a1) Unless covered by another provision of law providing greater punishment, any person who secretly or surreptitiously peeps underneath or through the clothing being worn by another person, through the use of a mirror or other device, for the purpose of viewing the body of, or the undergarments worn by, that other person without their consent shall be guilty of a Class 1 misdemeanor.

  2. For purposes of this section:
    1. The term “photographic image” means any photograph or photographic reproduction, still or moving, or any videotape, motion picture, or live television transmission, or any digital image of any individual.
    2. The term “room” shall include, but is not limited to, a bedroom, a rest room, a bathroom, a shower, and a dressing room.
  3. Unless covered by another provision of law providing greater punishment, any person who, while in possession of any device which may be used to create a photographic image, shall secretly peep into any room shall be guilty of a Class A1 misdemeanor.
  4. Unless covered by another provision of law providing greater punishment, any person who, while secretly peeping into any room, uses any device to create a photographic image of another person in that room for the purpose of arousing or gratifying the sexual desire of any person shall be guilty of a Class I felony.
  5. Any person who secretly or surreptitiously uses any device to create a photographic image of another person underneath or through the clothing being worn by that other person for the purpose of viewing the body of, or the undergarments worn by, that other person without their consent shall be guilty of a Class I felony.
  6. Any person who, for the purpose of arousing or gratifying the sexual desire of any person, secretly or surreptitiously uses or installs in a room any device that can be used to create a photographic image with the intent to capture the image of another without their consent shall be guilty of a Class I felony.
  7. Any person who knowingly possesses a photographic image that the person knows, or has reason to believe, was obtained in violation of this section shall be guilty of a Class I felony.
  8. Any person who disseminates or allows to be disseminated images that the person knows, or should have known, were obtained as a result of the violation of this section shall be guilty of a Class H felony if the dissemination is without the consent of the person in the photographic image.
  9. A second or subsequent felony conviction under this section shall be punished as though convicted of an offense one class higher. A second or subsequent conviction for a Class 1 misdemeanor shall be punished as a Class A1 misdemeanor. A second or subsequent conviction for a Class A1 misdemeanor shall be punished as a Class I felony.
  10. If the defendant is placed on probation as a result of violation of this section:
    1. For a first conviction under this section, the judge may impose a requirement that the defendant obtain a psychological evaluation and comply with any treatment recommended as a result of that evaluation.
    2. For a second or subsequent conviction under this section, the judge shall impose a requirement that the defendant obtain a psychological evaluation and comply with any treatment recommended as a result of that evaluation.
  11. Any person whose image is captured or disseminated in violation of this section has a civil cause of action against any person who captured or disseminated the image or procured any other person to capture or disseminate the image and is entitled to recover from those persons actual damages, punitive damages, reasonable attorneys’ fees and other litigation costs reasonably incurred.
  12. When a person violates subsection (d), (e), (f), (g), or (h) of this section, or is convicted of a second or subsequent violation of subsection (a), (a1), or (c) of this section, the sentencing court shall consider whether the person is a danger to the community and whether requiring the person to register as a sex offender pursuant to Article 27A of this Chapter would further the purposes of that Article as stated in G.S. 14-208.5 . If the sentencing court rules that the person is a danger to the community and that the person shall register, then an order shall be entered requiring the person to register.
  13. The provisions of subsections (a), (a1), (c), (e), (g), (h), and (k) of this section do not apply to:
    1. Law enforcement officers while discharging or attempting to discharge their official duties; or
    2. Personnel of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety or of a local confinement facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Division or the local confinement facility.
  14. This section does not affect the legal activities of those who are licensed pursuant to Chapter 74C, Private Protective Services, or Chapter 74D, Alarm Systems, of the General Statutes, who are legally engaged in the discharge of their official duties within their respective professions, and who are not engaging in activities for an improper purpose as described in this section.

History. 1923, c. 78; C.S., s. 4356(a); 1957, c. 338; 1993, c. 539, s. 131; 1994, Ex. Sess., c. 24, s. 14(c); 2003-303, s. 1; 2004-109, s. 7; 2011-145, s. 19.1(h); 2012-83, s. 1; 2017-186, s. 2(p).

Effect of Amendments.

Session Laws 2004-109, s. 7, effective December 1, 2004, and applicable to offenses committed on or after that date, added subsection (a1); and inserted “(a1)” in subsections ( l ) and (m).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” and “Division” for “Department” in subdivision (m)(2).

Session Laws 2012-83, s. 1, effective June 26, 2012, substituted “Safety, the Division of Juvenile Justice of the Department of Public Safety,” for “Safety” near the middle of subdivision (m)(2).

Session Laws 2017-186, s. 2(p), effective December 1, 2017, in subdivision (m)(2), inserted “and Juvenile Justice” and deleted “the Division of Juvenile Justice of the Department of Public Safety” preceding “or of a local”.

Legal Periodicals.

For discussion of application of this section to police officers, see 1 N.C.L. Rev. 286 (1923).

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

CASE NOTES

Constitutionality. —

This section is sufficiently narrowed by judicial interpretation to require that the act condemned must be a spying for the wrongful purpose of invading the privacy of the female occupant of the room, thereby omitting from its scope those persons who have a legitimate purpose upon another’s property and those who only inadvertently glance in the window of another. Thus, the statute is not so overbroad as to proscribe legitimate conduct. Therefore, this section is not unconstitutional for overbreadth. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

This section is sufficiently definite to give an individual fair notice of the conduct prohibited, and to guide a judge in its application and a lawyer in defending one charged with its violation, and therefore, this statute violates neither N.C. Const., Art. I, § 19, nor the Due Process Clause of the Federal Constitution by reason of vagueness and uncertainty. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

This section prohibits the wrongful spying into a room upon a female with the intent of violating the female’s legitimate expectation of privacy. This is sufficient to inform a person of ordinary intelligence, with reasonable precision, of those acts the statute intends to prohibit, so that he may know what acts he should avoid in order that he may not bring himself within its provisions. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

This section apparently was derived from the common-law crimes of common nuisance and eavesdropping. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

Sex Offender. —

Conduct proscribed by the felony secret peeping statute constitutes a “sexual offense,” and subject to the express limitation that a defendant’s actions are for the purpose of arousing or gratifying the sexual desire of any person; therefore, defendant was in indirect criminal contempt of a custody consent order because she willfully allowed her children in the presence of her boyfriend, who was a “convicted sex offender” as provided in the order based on his conviction for felony secret peeping, even if he was not required to register as a sex offender. The record showed that the inclusion of the “convicted sex offender” language in the consent order was specifically targeted at defendant’s relationship with her boyfriend. State v. Mastor, 243 N.C. App. 476, 777 S.E.2d 516, 2015 N.C. App. LEXIS 812 (2015).

Trial court properly determined that the defendant was a “danger to the community” and ordered that the defendant register as a sex offender because defendant posed a risk of sexual offenses in the future to warrant registration; defendant was capable of taking advantage of long-time, close friends who trusted the defendant to live in their home, and the defendant used sophisticated means to commit the defendant’s crime of felony secret peeping in a way that would likely be undetected by the defendant’s victim. State v. Fuller, 268 N.C. App. 240, 835 S.E.2d 53, 2019 N.C. App. LEXIS 877 (2019), aff'd, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

Trial court had jurisdiction over defendant’s second hearing to order him to register as a sex offender because when defendant was arrested for felony secret peeping he was in violation of his probation, and his hearing could be accelerated pursuant to his plea agreement; as a condition of probation, defendant not only agreed to the subsequent hearing but also not be unsupervised around any children, and he consented to the condition his hearing could be accelerated if there was noncompliance. State v. Vorndran, 272 N.C. App. 671, 847 S.E.2d 423, 2020 N.C. App. LEXIS 588 (2020).

Trial court properly ordered defendant to register as a sex offender; where defendant expressly agreed to a subsequent hearing before the trial court, where the postponement was for purposes of giving defendant the opportunity to show the court that he was not a recidivist or danger to the community, and where defendant was provided with adequate notice of the hearing and the State’s arguments to be made therein, the trial court retained jurisdiction over his second hearing. State v. Vorndran, 272 N.C. App. 671, 847 S.E.2d 423, 2020 N.C. App. LEXIS 588 (2020).

Because the trial court mistakenly checked the wrong box on the preprinted order, the matter was remanded to the trial court for the limited purpose of correcting the clerical error to reflect defendant’s plea under subsection (e). State v. Vorndran, 272 N.C. App. 671, 847 S.E.2d 423, 2020 N.C. App. LEXIS 588 (2020).

Term “is” has been defined as the third person singular, present tense of be; therefore, the determination of whether a defendant “is a danger to the community” necessarily requires a trial court to consider whether the defendant currently constitutes a danger to the community. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

In finding that a defendant “is a danger to the community” under subsection ( l ), a trial court may consider whether the defendant currently constitutes a “danger to the community” such that registration is appropriate; in addition, a finding that defendant “is a danger to the community” may also be satisfied upon a showing that, based upon the defendant’s conduct within the relevant past, there is a reasonable probability of similar conduct by the defendant in the near future. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

Determination that a defendant “is a danger to the community” is not based solely upon the consideration of a singular fact or predictive analysis; rather, a trial court reaches such a finding through considering and weighing all of the evidence. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

“Peep”. —

The word “peep” means to look cautiously or slyly — as if through a crevice — out from chinks and knotholes. State v. Bivins, 262 N.C. 93 , 136 S.E.2d 250, 1964 N.C. LEXIS 606 (1964).

The word “secretly” as used in this section conveys the definite idea of spying upon another with the intention of invading her privacy. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

Length of Blind Irrelevant. —

The fact that a venetian blind lacks some six to ten inches of reaching the windowsill is entirely irrelevant in a prosecution of defendant for peeping into a room occupied by a female. State v. Bivins, 262 N.C. 93 , 136 S.E.2d 250, 1964 N.C. LEXIS 606 (1964).

Defendant is entitled to know identity of female person whose privacy he is charged with having invaded. State v. Banks, 263 N.C. 784 , 140 S.E.2d 318, 1965 N.C. LEXIS 1368 (1965).

Warrant was defective where it failed to name the victim of the peeping misdemeanant, and could not be cured by a bill of particulars supplying the name. State v. Banks, 263 N.C. 784 , 140 S.E.2d 318, 1965 N.C. LEXIS 1368 (1965).

Charges Properly Consolidated for Trial. —

Defendant exhibited a similar modus operandi for G.S. 15A-926(a) purposes in the exploitation of a minor for the possession of computer files containing child pornography and exploitation of a minor for receiving those files under G.S. 14-190.17 , and secret peeping under G.S. 14-202 crimes charged as defendant used the same personal computer to view pictures of young women; the two types of offenses shared a transactional connection, and the offenses were properly consolidated for trial as the secret peeping charge involved placing a camera in the room of defendant’s stepdaughter and using the computer to view those images. State v. Anderson, 194 N.C. App. 292, 669 S.E.2d 793, 2008 N.C. App. LEXIS 2237 (2008).

Indictment Held Sufficient. —

Indictment was sufficient to charge felony secret peeping because, although defendant was correct that this statute included the language “without their consent,” the failure to include that language in the indictment was not a fatal defect as it had been previously established that any charge brought under this statute denoted an act by which a defendant had spied upon another without that person’s consent; and the language of the indictment indicated that defendant intended to capture images of the complainant without her consent because the terms used, such as “feloniously,” “unlawfully,” “surreptitiously,” and “victim,” clearly alleged that defendant had done something to the complainant without her consent. State v. Mann, 237 N.C. App. 535, 768 S.E.2d 138, 2014 N.C. App. LEXIS 1209 (2014).

Evidence Held Sufficient. —

Evidence in prosecution of defendant for peeping secretly into a room occupied by a woman was held sufficient to be submitted to the jury where a witness for the State testified that the room was usually occupied by a woman and he saw someone in the room immediately after defendant left the window. State v. Peterson, 232 N.C. 332 , 59 S.E.2d 635, 1950 N.C. LEXIS 438 (1950).

Sufficient evidence supported defendant’s convictions for exploitation of a minor under G.S. 14-190.17 and secret peeping under G.S. 14-202 as defendant used defendant’s computer to download and view movies of minors engaged in sexual activity, and placed a hidden camera in the room of defendant’s stepdaughter to observe her. State v. Anderson, 194 N.C. App. 292, 669 S.E.2d 793, 2008 N.C. App. LEXIS 2237 (2008).

Because the evidentiary facts reasonably supported the trial court’s ultimate fact that defendant “is a danger to the community,” it was proper to order him to register as a sex offender; defendant was willing to take advantage of a close, personal relationship, he used and executed a sophisticated scheme intended to avoid detection, he deployed a hidden camera and obtained images of the victim over an extended period of time, and he repeatedly invaded the victim’s privacy. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

Evidence Held Insufficient. —

Evidence tending to show that shoe prints were found six or eight feet from the window of a house in which a woman lived alone, that shoe prints were also found in the edge of a field nearby, and that bloodhounds were put on the trail at the edge of the field and followed the scent to defendant’s house, without evidence as to when or by whom the tracks were made, was insufficient evidence of the corpus delicti, aliunde the confession of the defendant, to be submitted to the jury in a prosecution under this section. State v. Bass, 253 N.C. 318 , 116 S.E.2d 772, 1960 N.C. LEXIS 501 (1960), overruled in part, State v. Parker, 315 N.C. 222 , 337 S.E.2d 487, 1985 N.C. LEXIS 1982 (1985).

Certainty of Recidivism. —

Trial court need not determine that the risk of recidivism is an absolute certainty, but the trial court must do more than rely on a determination that there is always a slight risk with every defendant to recidivate; the trial court’s findings must demonstrate that the level of risk is such that there is a reasonable likelihood that the defendant in question will recidivate. State v. Fuller, 268 N.C. App. 240, 835 S.E.2d 53, 2019 N.C. App. LEXIS 877 (2019), aff'd, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

§ 14-202. Secretly peeping into room occupied by another person. [Effective January 1, 2023]

  1. Any person who shall peep secretly into any room occupied by another person shall be guilty of a Class 1 misdemeanor.

    (a1) Unless covered by another provision of law providing greater punishment, any person who secretly or surreptitiously peeps underneath or through the clothing being worn by another person, through the use of a mirror or other device, for the purpose of viewing the body of, or the undergarments worn by, that other person without their consent shall be guilty of a Class 1 misdemeanor.

  2. For purposes of this section:
    1. The term “photographic image” means any photograph or photographic reproduction, still or moving, or any videotape, motion picture, or live television transmission, or any digital image of any individual.
    2. The term “room” shall include, but is not limited to, a bedroom, a rest room, a bathroom, a shower, and a dressing room.
  3. Unless covered by another provision of law providing greater punishment, any person who, while in possession of any device which may be used to create a photographic image, shall secretly peep into any room shall be guilty of a Class A1 misdemeanor.
  4. Unless covered by another provision of law providing greater punishment, any person who, while secretly peeping into any room, uses any device to create a photographic image of another person in that room for the purpose of arousing or gratifying the sexual desire of any person shall be guilty of a Class I felony.
  5. Any person who secretly or surreptitiously uses any device to create a photographic image of another person underneath or through the clothing being worn by that other person for the purpose of viewing the body of, or the undergarments worn by, that other person without their consent shall be guilty of a Class I felony.
  6. Any person who, for the purpose of arousing or gratifying the sexual desire of any person, secretly or surreptitiously uses or installs in a room any device that can be used to create a photographic image with the intent to capture the image of another without their consent shall be guilty of a Class I felony.
  7. Any person who knowingly possesses a photographic image that the person knows, or has reason to believe, was obtained in violation of this section shall be guilty of a Class I felony.
  8. Any person who disseminates or allows to be disseminated images that the person knows, or should have known, were obtained as a result of the violation of this section shall be guilty of a Class H felony if the dissemination is without the consent of the person in the photographic image.
  9. A second or subsequent felony conviction under this section shall be punished as though convicted of an offense one class higher. A second or subsequent conviction for a Class 1 misdemeanor shall be punished as a Class A1 misdemeanor. A second or subsequent conviction for a Class A1 misdemeanor shall be punished as a Class I felony.
  10. If the defendant is placed on probation as a result of violation of this section:
    1. For a first conviction under this section, the judge may impose a requirement that the defendant obtain a psychological evaluation and comply with any treatment recommended as a result of that evaluation.
    2. For a second or subsequent conviction under this section, the judge shall impose a requirement that the defendant obtain a psychological evaluation and comply with any treatment recommended as a result of that evaluation.
  11. Any person whose image is captured or disseminated in violation of this section has a civil cause of action against any person who captured or disseminated the image or procured any other person to capture or disseminate the image and is entitled to recover from those persons actual damages, punitive damages, reasonable attorneys’ fees and other litigation costs reasonably incurred.
  12. When a person violates subsection (d), (e), (f), (g), or (h) of this section, or is convicted of a second or subsequent violation of subsection (a), (a1), or (c) of this section, the sentencing court shall consider whether the person is a danger to the community and whether requiring the person to register as a sex offender pursuant to Article 27A of this Chapter would further the purposes of that Article as stated in G.S. 14-208.5 . If the sentencing court rules that the person is a danger to the community and that the person shall register, then an order shall be entered requiring the person to register.
  13. The provisions of subsections (a), (a1), (c), (e), (g), (h), and (k) of this section do not apply to:
    1. Law enforcement officers while discharging or attempting to discharge their official duties; or
    2. Personnel of the Division of Prisons of the Department of Adult Correction or of a local confinement facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Division or the local confinement facility.
  14. This section does not affect the legal activities of those who are licensed pursuant to Chapter 74C, Private Protective Services, or Chapter 74D, Alarm Systems, of the General Statutes, who are legally engaged in the discharge of their official duties within their respective professions, and who are not engaging in activities for an improper purpose as described in this section.

History. 1923, c. 78; C.S., s. 4356(a); 1957, c. 338; 1993, c. 539, s. 131; 1994, Ex. Sess., c. 24, s. 14(c); 2003-303, s. 1; 2004-109, s. 7; 2011-145, s. 19.1(h); 2012-83, s. 1; 2017-186, s. 2(p); 2021-180, s. 19C.9(p).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2004-109, s. 7, effective December 1, 2004, and applicable to offenses committed on or after that date, added subsection (a1); and inserted “(a1)” in subsections ( l ) and (m).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” and “Division” for “Department” in subdivision (m)(2).

Session Laws 2012-83, s. 1, effective June 26, 2012, substituted “Safety, the Division of Juvenile Justice of the Department of Public Safety,” for “Safety” near the middle of subdivision (m)(2).

Session Laws 2017-186, s. 2(p), effective December 1, 2017, in subdivision (m)(2), inserted “and Juvenile Justice” and deleted “the Division of Juvenile Justice of the Department of Public Safety” preceding “or of a local”.

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in subdivision (m)(2). For effective date and applicability, see editor's note.

Legal Periodicals.

For discussion of application of this section to police officers, see 1 N.C.L. Rev. 286 (1923).

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

CASE NOTES

Constitutionality. —

This section is sufficiently narrowed by judicial interpretation to require that the act condemned must be a spying for the wrongful purpose of invading the privacy of the female occupant of the room, thereby omitting from its scope those persons who have a legitimate purpose upon another’s property and those who only inadvertently glance in the window of another. Thus, the statute is not so overbroad as to proscribe legitimate conduct. Therefore, this section is not unconstitutional for overbreadth. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

This section is sufficiently definite to give an individual fair notice of the conduct prohibited, and to guide a judge in its application and a lawyer in defending one charged with its violation, and therefore, this statute violates neither N.C. Const., Art. I, § 19, nor the Due Process Clause of the Federal Constitution by reason of vagueness and uncertainty. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

This section prohibits the wrongful spying into a room upon a female with the intent of violating the female’s legitimate expectation of privacy. This is sufficient to inform a person of ordinary intelligence, with reasonable precision, of those acts the statute intends to prohibit, so that he may know what acts he should avoid in order that he may not bring himself within its provisions. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

This section apparently was derived from the common-law crimes of common nuisance and eavesdropping. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

Sex Offender. —

Conduct proscribed by the felony secret peeping statute constitutes a “sexual offense,” and subject to the express limitation that a defendant’s actions are for the purpose of arousing or gratifying the sexual desire of any person; therefore, defendant was in indirect criminal contempt of a custody consent order because she willfully allowed her children in the presence of her boyfriend, who was a “convicted sex offender” as provided in the order based on his conviction for felony secret peeping, even if he was not required to register as a sex offender. The record showed that the inclusion of the “convicted sex offender” language in the consent order was specifically targeted at defendant’s relationship with her boyfriend. State v. Mastor, 243 N.C. App. 476, 777 S.E.2d 516, 2015 N.C. App. LEXIS 812 (2015).

Trial court properly determined that the defendant was a “danger to the community” and ordered that the defendant register as a sex offender because defendant posed a risk of sexual offenses in the future to warrant registration; defendant was capable of taking advantage of long-time, close friends who trusted the defendant to live in their home, and the defendant used sophisticated means to commit the defendant’s crime of felony secret peeping in a way that would likely be undetected by the defendant’s victim. State v. Fuller, 268 N.C. App. 240, 835 S.E.2d 53, 2019 N.C. App. LEXIS 877 (2019), aff'd, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

Trial court had jurisdiction over defendant’s second hearing to order him to register as a sex offender because when defendant was arrested for felony secret peeping he was in violation of his probation, and his hearing could be accelerated pursuant to his plea agreement; as a condition of probation, defendant not only agreed to the subsequent hearing but also not be unsupervised around any children, and he consented to the condition his hearing could be accelerated if there was noncompliance. State v. Vorndran, 272 N.C. App. 671, 847 S.E.2d 423, 2020 N.C. App. LEXIS 588 (2020).

Trial court properly ordered defendant to register as a sex offender; where defendant expressly agreed to a subsequent hearing before the trial court, where the postponement was for purposes of giving defendant the opportunity to show the court that he was not a recidivist or danger to the community, and where defendant was provided with adequate notice of the hearing and the State’s arguments to be made therein, the trial court retained jurisdiction over his second hearing. State v. Vorndran, 272 N.C. App. 671, 847 S.E.2d 423, 2020 N.C. App. LEXIS 588 (2020).

Because the trial court mistakenly checked the wrong box on the preprinted order, the matter was remanded to the trial court for the limited purpose of correcting the clerical error to reflect defendant’s plea under subsection (e). State v. Vorndran, 272 N.C. App. 671, 847 S.E.2d 423, 2020 N.C. App. LEXIS 588 (2020).

Term “is” has been defined as the third person singular, present tense of be; therefore, the determination of whether a defendant “is a danger to the community” necessarily requires a trial court to consider whether the defendant currently constitutes a danger to the community. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

In finding that a defendant “is a danger to the community” under subsection ( l ), a trial court may consider whether the defendant currently constitutes a “danger to the community” such that registration is appropriate; in addition, a finding that defendant “is a danger to the community” may also be satisfied upon a showing that, based upon the defendant’s conduct within the relevant past, there is a reasonable probability of similar conduct by the defendant in the near future. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

Determination that a defendant “is a danger to the community” is not based solely upon the consideration of a singular fact or predictive analysis; rather, a trial court reaches such a finding through considering and weighing all of the evidence. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

“Peep”. —

The word “peep” means to look cautiously or slyly — as if through a crevice — out from chinks and knotholes. State v. Bivins, 262 N.C. 93 , 136 S.E.2d 250, 1964 N.C. LEXIS 606 (1964).

The word “secretly” as used in this section conveys the definite idea of spying upon another with the intention of invading her privacy. In re Banks, 295 N.C. 236 , 244 S.E.2d 386, 1978 N.C. LEXIS 988 (1978).

Length of Blind Irrelevant. —

The fact that a venetian blind lacks some six to ten inches of reaching the windowsill is entirely irrelevant in a prosecution of defendant for peeping into a room occupied by a female. State v. Bivins, 262 N.C. 93 , 136 S.E.2d 250, 1964 N.C. LEXIS 606 (1964).

Defendant is entitled to know identity of female person whose privacy he is charged with having invaded. State v. Banks, 263 N.C. 784 , 140 S.E.2d 318, 1965 N.C. LEXIS 1368 (1965).

Warrant was defective where it failed to name the victim of the peeping misdemeanant, and could not be cured by a bill of particulars supplying the name. State v. Banks, 263 N.C. 784 , 140 S.E.2d 318, 1965 N.C. LEXIS 1368 (1965).

Charges Properly Consolidated for Trial. —

Defendant exhibited a similar modus operandi for G.S. 15A-926(a) purposes in the exploitation of a minor for the possession of computer files containing child pornography and exploitation of a minor for receiving those files under G.S. 14-190.17 , and secret peeping under G.S. 14-202 crimes charged as defendant used the same personal computer to view pictures of young women; the two types of offenses shared a transactional connection, and the offenses were properly consolidated for trial as the secret peeping charge involved placing a camera in the room of defendant’s stepdaughter and using the computer to view those images. State v. Anderson, 194 N.C. App. 292, 669 S.E.2d 793, 2008 N.C. App. LEXIS 2237 (2008).

Indictment Held Sufficient. —

Indictment was sufficient to charge felony secret peeping because, although defendant was correct that this statute included the language “without their consent,” the failure to include that language in the indictment was not a fatal defect as it had been previously established that any charge brought under this statute denoted an act by which a defendant had spied upon another without that person’s consent; and the language of the indictment indicated that defendant intended to capture images of the complainant without her consent because the terms used, such as “feloniously,” “unlawfully,” “surreptitiously,” and “victim,” clearly alleged that defendant had done something to the complainant without her consent. State v. Mann, 237 N.C. App. 535, 768 S.E.2d 138, 2014 N.C. App. LEXIS 1209 (2014).

Evidence Held Sufficient. —

Evidence in prosecution of defendant for peeping secretly into a room occupied by a woman was held sufficient to be submitted to the jury where a witness for the State testified that the room was usually occupied by a woman and he saw someone in the room immediately after defendant left the window. State v. Peterson, 232 N.C. 332 , 59 S.E.2d 635, 1950 N.C. LEXIS 438 (1950).

Sufficient evidence supported defendant’s convictions for exploitation of a minor under G.S. 14-190.17 and secret peeping under G.S. 14-202 as defendant used defendant’s computer to download and view movies of minors engaged in sexual activity, and placed a hidden camera in the room of defendant’s stepdaughter to observe her. State v. Anderson, 194 N.C. App. 292, 669 S.E.2d 793, 2008 N.C. App. LEXIS 2237 (2008).

Because the evidentiary facts reasonably supported the trial court’s ultimate fact that defendant “is a danger to the community,” it was proper to order him to register as a sex offender; defendant was willing to take advantage of a close, personal relationship, he used and executed a sophisticated scheme intended to avoid detection, he deployed a hidden camera and obtained images of the victim over an extended period of time, and he repeatedly invaded the victim’s privacy. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

Evidence Held Insufficient. —

Evidence tending to show that shoe prints were found six or eight feet from the window of a house in which a woman lived alone, that shoe prints were also found in the edge of a field nearby, and that bloodhounds were put on the trail at the edge of the field and followed the scent to defendant’s house, without evidence as to when or by whom the tracks were made, was insufficient evidence of the corpus delicti, aliunde the confession of the defendant, to be submitted to the jury in a prosecution under this section. State v. Bass, 253 N.C. 318 , 116 S.E.2d 772, 1960 N.C. LEXIS 501 (1960), overruled in part, State v. Parker, 315 N.C. 222 , 337 S.E.2d 487, 1985 N.C. LEXIS 1982 (1985).

Certainty of Recidivism. —

Trial court need not determine that the risk of recidivism is an absolute certainty, but the trial court must do more than rely on a determination that there is always a slight risk with every defendant to recidivate; the trial court’s findings must demonstrate that the level of risk is such that there is a reasonable likelihood that the defendant in question will recidivate. State v. Fuller, 268 N.C. App. 240, 835 S.E.2d 53, 2019 N.C. App. LEXIS 877 (2019), aff'd, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

§ 14-202.1. Taking indecent liberties with children.

  1. A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:
    1. Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or
    2. Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.
  2. Taking indecent liberties with children is punishable as a Class F felony.

History. 1955, c. 764; 1975, c. 779; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; 179, s. 14; 1993, c. 539, s. 1201; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to privileged nature of communications with agents of rape crisis centers and domestic violence programs, see G.S. 8-53.12 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

For note, “Right, But for the Wrong Reasons: How a Certified Question to the Supreme Court of North Carolina Could have Alleviated Conflicting Views and Brought Clarity to North Carolina State Law,” see 34 N.C. Cent. L. Rev. 230 (2012).

CASE NOTES

Analysis

I.General Consideration

Constitutionality. —

The use of language such as “immoral, improper, indecent liberties” and “lewd or lascivious act” in this section is not unconstitutionally vague. State v. Vehaun, 34 N.C. App. 700, 239 S.E.2d 705, 1977 N.C. App. LEXIS 1796 (1977), cert. denied, 294 N.C. 445 , 241 S.E.2d 846, 1978 N.C. LEXIS 1283 (1978).

This section is not unconstitutionally vague. State v. Maxwell, 47 N.C. App. 658, 267 S.E.2d 582, 1980 N.C. App. LEXIS 3162 (1980).

This section is not unconstitutionally void for vagueness since it clearly prohibits sexual conduct with a minor child and describes with reasonable specificity the proscribed conduct. State v. Elam, 302 N.C. 157 , 273 S.E.2d 661, 1981 N.C. LEXIS 1031 (1981); State v. Strickland, 77 N.C. App. 454, 335 S.E.2d 74, 1985 N.C. App. LEXIS 4087 (1985).

This section does not violate equal protection in requiring a five-year difference between the age of the defendant, who cannot himself be under 16, and the age of the victim, who must be under age 16, since the age classifications within the statute are reasonably related to the purpose of the statute, i.e., the protection of children from the sexual advances of adults. State v. Elam, 302 N.C. 157 , 273 S.E.2d 661, 1981 N.C. LEXIS 1031 (1981).

This statute sufficiently appraises defendants of prohibited conduct and is not void for vagueness. State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42, 1998 N.C. App. LEXIS 1157 (1998).

The term “with” contained in this section was not unconstitutionally vague as applied to defendant who exposed himself from behind a sliding glass door to children some 35 feet away. State v. Nesbitt, 133 N.C. App. 420, 515 S.E.2d 503, 1999 N.C. App. LEXIS 509 (1999).

This statute was not unconstitutionally vague as applied to defendant/father. State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794, 2000 N.C. App. LEXIS 1301 (2000).

Standing to Challenge Section. —

Defendant held to lack standing to challenge constitutionality of section on equal protection grounds. See State v. Vehaun, 34 N.C. App. 700, 239 S.E.2d 705, 1977 N.C. App. LEXIS 1796 (1977), cert. denied, 294 N.C. 445 , 241 S.E.2d 846, 1978 N.C. LEXIS 1283 (1978).

Defendant had no standing to attack this section on the ground that it was unconstitutionally overbroad in that it proscribes innocent displays of affection in violation of the U.S. Const., Amend. I since the statute had never been so interpreted and was not so applied against defendant, and defendant had no U.S. Const., Amend. I right to express himself through unlawful actions. State v. Elam, 302 N.C. 157 , 273 S.E.2d 661, 1981 N.C. LEXIS 1031 (1981).

Foreign Convictions. —

Out-of-state offense was “equivalent” to a sex offense in New Mexico if the defendant’s actual conduct supporting his or her out-of-state conviction would have constituted any of the twelve sex offenses under the New Mexico Sex Offender Registration and Notification Act, N.M. Stat. Ann. §§ 29-11A-1 to -10; the record was insufficient to determine the factual basis supporting defendant’s conviction in North Carolina, and the judgment was remanded for further proceedings. State v. Orr, 2013-NMCA-069, 304 P.3d 449, 2013 N.M. App. LEXIS 42 (N.M. Ct. App. 2013).

Relationship With Other Laws. —

Defendant’s indecent liberties offenses were not Armed Career Criminal Act (ACCA) violent felonies because even if the court assumed that it could resort to the modified categorical approach, and also assumed that doing so would lead to the ineluctable conclusion that a G.S. 14-202.1(a)(2) offense was a violent felony for ACCA purposes, the government nonetheless could not prove that defendant was convicted of violating G.S. 14-202.1(a)(2); each charging document alleged a violation of the statute, without specifying either subsection thereof, and, consistent with North Carolina law, each properly alleged the indecent liberties offense in conjunctive fashion (the fact that defendant’s predicate charging documents properly use the conjunctive term “and,” rather than the disjunctive “or,” did not mean that defendant “necessarily” pleaded guilty to G.S. 14-202.1(a)(2)). United States v. Vann, 660 F.3d 771, 2011 U.S. App. LEXIS 20612 (4th Cir. 2011).

For sentencing enhancement purposes under Tex. Penal Code Ann. § 12.42(c)(2), court erred in finding that defendant’s prior North Carolina conviction for “Taking Indecent Liberties With Children” under G.S. 14-202.1 was “substantially similar” to the Texas offense of “Indecency with a Child” under Tex. Penal Code Ann. § 21.11 because the two offenses did not contain elements that were substantially similar when G.S. 14-202.1 was much broader than § 21.11, criminalizing a significant amount of conduct that was lawful in Texas; G.S. 14-202.1 was more concerned with preventing children from being exposed to any form of “lewd” conduct and with punishing the “immoral, improper, or indecent” minds of adults than with proscribing specific sexual acts against children, which was a focus of § 21.11; and the class, degree, and range of punishment for G.S. 14-202.1 was much less than for § 21.11. Anderson v. State, 394 S.W.3d 531, 2013 Tex. Crim. App. LEXIS 591 (Tex. Crim. App. 2013).

Where defendant appealed his 46-month sentence for violating 8 U.S.C.S. § 1326(a), he unsuccessfully argued that his conviction for taking indecent liberties with a minor, in violation of G.S. 14-202.1(a), did not constitute sexual abuse of a minor, and therefore was not a crime of violence within the meaning of U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A). United States v. Perez-Perez, 737 F.3d 950, 2013 U.S. App. LEXIS 25088 (4th Cir. 2013), cert. denied, 574 U.S. 844, 135 S. Ct. 102, 190 L. Ed. 2d 82, 2014 U.S. LEXIS 6684 (2014).

In determining whether defendant’s convictions for taking indecent liberties with a child sufficed to make him a Tier II offender as defined in 42 U.S.C.S. § 16911(3)(A)(iv), courts were required to utilize the categorical approach, as supplemented by the modified categorical approach in the event that defendant was convicted of violating a divisible statute. State v. Moir, 369 N.C. 370 , 794 S.E.2d 685, 2016 N.C. LEXIS 1131 (2016).

Any conviction for the North Carolina crime of taking indecent liberties with children at the very least “relates to the sexual exploitation of children,” 18 U.S.C.S. § 2251(e). United States v. Mills, 850 F.3d 693, 2017 U.S. App. LEXIS 4530 (4th Cir.), cert. denied, 138 S. Ct. 178, 199 L. Ed. 2d 105, 2017 U.S. LEXIS 5915 (2017).

This section and G.S. 14-177 are complementary rather than repugnant or inconsistent. State v. Lance, 244 N.C. 455 , 94 S.E.2d 335, 1956 N.C. LEXIS 429 (1956); State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965); State v. Chance, 3 N.C. App. 459, 165 S.E.2d 31, 1969 N.C. App. LEXIS 1600 (1969).

Section 14-177 and this section can be reconciled and both declared to be operative without repugnance. State v. Chance, 3 N.C. App. 459, 165 S.E.2d 31, 1969 N.C. App. LEXIS 1600 (1969); State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971).

There was no merit to defendant’s contention that the trial court lacked jurisdiction to try him under the indecent liberties with children statute, this section, because the criminal act he committed was a crime against nature prohibited by G.S. 14-177 , since the crime against nature statute and the indecent liberties with children statute are complementary but not mutually exclusive. State v. Elam, 302 N.C. 157 , 273 S.E.2d 661, 1981 N.C. LEXIS 1031 (1981).

And this section supplements G.S. 14-177 . State v. Whittemore, 255 N.C. 583 , 122 S.E.2d 396, 1961 N.C. LEXIS 653 (1961).

There was no legislative intent in enacting this section to repeal G.S. 14-177 in any aspect; the intent was to supplement it and to give even broader protection to children. State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965).

This Section and G.S. 14-177 Distinguished. —

This section condemns those offenses of an unnatural sexual nature against children under 16 years of age by persons over 16 years of age which cannot be reached and punished under the provisions of G.S. 14-177 . State v. Harward, 264 N.C. 746 , 142 S.E.2d 691, 1965 N.C. LEXIS 1272 (1965).

Section 14-177 condemns crimes against nature whether committed against adults or children. This section condemns those offenses of an unnatural sexual nature against children under 16 years of age by persons over 16 years of age which cannot be reached and punished under the provisions of G.S. 14-177 . This section, of course, condemns other acts against children than unnatural sexual acts. State v. Chance, 3 N.C. App. 459, 165 S.E.2d 31, 1969 N.C. App. LEXIS 1600 (1969).

Section 14-177 condemns crimes against nature whether committed against adults or children while this section condemns other acts against children than unnatural sexual acts and condemns those offenses of an unnatural sexual nature against children under 16 years of age by persons over 16 years of age which cannot be reached and punished under the provisions of G.S. 14-177 . State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971).

Not an Aggravated Offense as Defined by G.S. 14-208.6 . —

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court’s conclusion that defendant committed an aggravated offense was based in part upon defendant’s colloquy at trial, when making a determination pursuant to G.S. 14-208.40 A, the trial court was only to consider the elements of the offense of which defendant was convicted and was not to consider the underlying factual scenario giving rise to the conviction. Neither attempted first-degree sex offense nor taking indecent liberties with a child was an aggravated offense within the meaning of G.S. 14-208.6(1a). State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

This Statute Held Not to Punish Only Unnatural Acts. —

The indecent liberties statute is not intended to punish only acts which, if committed by and against adults, would be inherently “unnatural”, such as crimes against nature and incest. State v. Banks, 322 N.C. 753 , 370 S.E.2d 398, 1988 N.C. LEXIS 479 (1988).

Mistake of Age Not a Defense. —

In a case in which defendant appealed her convictions for taking indecent liberties with a minor, in violation of G.S. 14-202.1 , she unsuccessfully argued that the trial court erred by preventing defense counsel from arguing a mistake of age defense to the jury. While G.S. 7A-97 gave counsel wide latitude to argue the facts and all reasonable inferences which might be drawn therefrom, together with the relevant law, in presenting the case to the jury, since the trial court correctly concluded that a mistake of age defense was not a valid defense to taking indecent liberties with a minor, it did not err by preventing defense counsel from arguing the defense to the jury at defendant’s trial. State v. Breathette, 202 N.C. App. 697, 690 S.E.2d 1, 2010 N.C. App. LEXIS 374 (2010).

Indictments with Dates Different from Those of Arrest Warrants Held Not Prejudicial to Defendant. —

Trial court committed no error, plain or otherwise, with respect to defendant not having been served with bills of indictment or with respect to the State offering evidence that the offenses occurred on dates different from those alleged in the arrest warrants, where defendant was represented by counsel of record on the date of the return of the true bills of indictment, where he and his counsel waived formal arraignment, at which they would have been informed of the allegations contained in the bills of indictment, where defendant presented evidence that he was never alone with victim during any of the times during which the State’s evidence showed the offenses occurred, and where he did not rely solely upon alibi but also presented evidence through his own testimony and the testimony of others directly contradicting victim’s account of the incidents. State v. Hutchings, 139 N.C. App. 184, 533 S.E.2d 258, 2000 N.C. App. LEXIS 811 (2000).

Neither the indictments nor the jury verdicts returned thereon were required to specify the acts which constituted the indecent liberties for which the defendant was convicted. State v. Miller, 137 N.C. App. 450, 528 S.E.2d 626, 2000 N.C. App. LEXIS 418 (2000).

The indictments against the defendant for first-degree sexual offense and for indecent liberties with a child were upheld in spite of his allegations that they were defective as a matter of law in not setting out each element of the offenses. State v. Youngs, 141 N.C. App. 220, 540 S.E.2d 794, 2000 N.C. App. LEXIS 1301 (2000).

Crime against nature and taking indecent liberties with a child are separate and distinct offenses. State v. Hoover, 89 N.C. App. 199, 365 S.E.2d 920, 1988 N.C. App. LEXIS 283 , cert. denied, 323 N.C. 177 , 373 S.E.2d 118, 1988 N.C. LEXIS 549 (1988).

Elements of This Section and § 14-27.4 Are Different. —

Imposition of sentences for first-degree sexual offenses as well as offenses of taking of indecent liberties with a child, based on the same acts, did not constitute double jeopardy, as the elements of the two crimes are different. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

The definitional elements of first-degree sex offense and indecent liberties are different; therefore, defendant’s conviction of first-degree sex offense and indecent liberties did not contravene his constitutional protection against double jeopardy. State v. Manley, 95 N.C. App. 213, 381 S.E.2d 900, 1989 N.C. App. LEXIS 662 (1989).

Assault Is Not Lesser Included Offense. —

Since assault is not an essential element of taking indecent liberties with a child, the crime of assault on a child under the age of 12 years cannot be a lesser included offense of taking indecent liberties with a child. State v. Holman, 94 N.C. App. 361, 380 S.E.2d 128, 1989 N.C. App. LEXIS 468 (1989).

Assault on a Female Not a Lesser Included Offense. —

Assault on a female is not a lesser included offense of taking indecent liberties with a child because assault on a female contains elements not present in the greater offense. State v. Love, 127 N.C. App. 437, 490 S.E.2d 249, 1997 N.C. App. LEXIS 885 (1997).

for a defendant to be punished for convictions of rape, incest, and taking indecent liberties with a minor when all the convictions were based on one incident. State v. Fletcher, 322 N.C. 415 , 368 S.E.2d 633, 1988 N.C. LEXIS 370 (1988).

Defendant’s conviction of three counts of indecent liberties under G.S. 14-202.1(a)(1) for a single episode for touching and sucking a victim’s breasts, performing oral sex on the victim, and committing sexual intercourse with the victim did not violate the double jeopardy clause of the U.S. Constitution and N.C. Const., Art. I, § 19, as there were two distinct sexual acts and touch in the single encounter; the indictments each spelled out a separate and distinct fact needed to be proven by the State in order to gain a conviction, and the three acts were distinct acts each constituting the crime of indecent liberties. State v. James, 182 N.C. App. 698, 643 S.E.2d 34, 2007 N.C. App. LEXIS 797 (2007).

Defendant’s right to be free from double jeopardy was not violated because none of the elements for indecent liberties with a child and using a minor in obscenity were the same; therefore, defendant did not receive ineffective assistance of counsel for failure to raise the double jeopardy argument. State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53, 2009 N.C. App. LEXIS 55 (2009).

Consolidation of Separately Occurring Offenses Held Not Error. —

Consolidation of two counts of first-degree sexual offense and two counts of taking indecent liberties with a child, which allegedly occurred one week apart did not constitute error. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Violation of This Section Is Not a Lesser Included Offense Under G.S. 14-177 . —

Because the two offenses are separate and distinct and the constituent elements are not identical, a violation of this section is not a lesser included offense of the crime against nature described in G.S. 14-177 . State v. Copeland, 11 N.C. App. 516, 181 S.E.2d 722, 1971 N.C. App. LEXIS 1568 , cert. denied, 279 N.C. 512 , 183 S.E.2d 688, 1971 N.C. LEXIS 875 (1971).

Nor a Lesser Included Offense of Statutory Rape. —

The offense of taking indecent liberties with a child under this section is not a lesser included offense of statutory rape under G.S. 14-27.2(a)(1), because the age elements are different, and, while sexual purpose may be inherent in an act of forcible vaginal intercourse, it is not required to be proved in order to convict a defendant of rape. State v. Weaver, 306 N.C. 629 , 295 S.E.2d 375, 1982 N.C. LEXIS 1541 (1982) (overruling) State v. Shaw, 293 N.C. 616 , 239 S.E.2d 439, 1977 N.C. LEXIS 1011 (1977); State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544 , 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

Convictions of Both Rape and Indecent Liberties Permissible. —

Vaginal intercourse is not an element of taking indecent liberties with a minor, and committing the act for the purpose of arousing or gratifying sexual desire is not an element of rape. Thus defendant was not placed in double jeopardy by being convicted of both crimes. State v. Rhodes, 321 N.C. 102 , 361 S.E.2d 578, 1987 N.C. LEXIS 2489 (1987).

Violation of This Section Is Not a Lesser Included Offense of First Degree Sexual Offense. —

In a prosecution of defendant under G.S. 14-27.4(a) for engaging in a sexual act with children under 12 years, the trial court did not err in failing to instruct on taking indecent liberties with children in violation of this section, since taking indecent liberties with children is not a lesser included offense of the crime proscribed by G.S. 14-27.4(a). State v. Williams, 303 N.C. 507 , 279 S.E.2d 592, 1981 N.C. LEXIS 1195 (1981).

Because indecent liberties with a minor does not merge with and is not a lesser included offense of first-degree sexual offense, evidence presented on the charges of first-degree sexual offense may also support a conviction for indecent liberties; thus, it was impossible to tell which particular acts corresponded with which charges and convictions for indecent liberties where defendant was convicted of seven of ten counts of taking indecent liberties with a minor and the trial court failed to indicate which offenses were to be considered for which verdict sheets. State v. Bates, 172 N.C. App. 27, 616 S.E.2d 280, 2005 N.C. App. LEXIS 1585 (2005).

The purpose of this section is to give broader protection to children than the prior laws provided. State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574, 1981 N.C. App. LEXIS 2432 (1981).

Testimony By Competent Child Victim. —

Four-year-old victim, who was two and one-half years old at the time of the alleged G.S. 14-202.1 incident, was competent to testify under G.S. 8C-1-601(b) as: (1) It was expected that the victim would make vague and self-contradictory answers during voir dire; and (2) Somewhat non-responsive and contradictory responses to some questions when the victim testified before the jury did not show that the victim was unable to relate facts, although they might have been proper subjects for cross-examination or a jury argument. State v. Carter, 210 N.C. App. 156, 707 S.E.2d 700, 2011 N.C. App. LEXIS 298 (2011).

Sufficiency of Indictment. —

Indictments for taking indecent liberties held to clearly inform defendant of the conduct which was the subject of the accusations as required by G.S. 15A-924(a)(5), and therefore sufficiently charged the offense, and did not need to specify the exact act which constituted the “immoral, improper and indecent liberty.” State v. Singleton, 85 N.C. App. 123, 354 S.E.2d 259, 1987 N.C. App. LEXIS 2561 (1987); State v. Fultz, 92 N.C. App. 80, 373 S.E.2d 445, 1988 N.C. App. LEXIS 988 (1988).

Indictment for indecent liberties that matched the form required by G.S. 14-202.1 was sufficient to inform defendant of the charges against him. State v. Massey, 174 N.C. App. 216, 621 S.E.2d 633, 2005 N.C. App. LEXIS 2400 (2005), rev'd in part, 361 N.C. 406 , 646 S.E.2d 362, 2007 N.C. LEXIS 595 (2007).

Indictment which was couched in the language of the statute was sufficient. State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267, 2006 N.C. App. LEXIS 2251 (2006).

Defendant’s claim that by failing to differentiate the various charges by providing different dates for the offenses and listing the underlying acts, the indictments opened the door to defendant being subjected to double jeopardy for the same acts on the same dates, was rejected because: (1) defendant’s indictments for statutory sexual offense, statutory sexual offense against a person who was 13, 14, or 15 years of age, and sexual offense were in compliance with the requirements of G.S. 15-144.2 , and the indictments matched the wording of G.S. 14-27.4(a)(1), G.S. 14-27.7 A(a), and G.S. 14-27.5(a)(1); (2) defendant’s indictments for the charges of taking indecent liberties with a child matched the wording of G.S.14-202.1(a)(2); and (3) defendant’s assault on a female indictments matched the wording of G.S. 14-33(c)(2); each of the indictments was sufficient to inform defendant of the charges against defendant, and defendant failed to show any deprivation of defendant’s ability to prepare a defense due to a lack of specificity in the indictments. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Five indictments brought against defendant for taking indecent liberties with a child, G.S. 14-202.1(a), sufficiently informed defendant of the conduct for which he was charged because each of the indictments was couched in the language of the statute, and each indictment alleged that defendant committed the subject offense within a specific, non-overlapping six month period between July 2005 and December 2007. State v. Comeaux, 224 N.C. App. 595, 741 S.E.2d 346, 2012 N.C. App. LEXIS 1475 (2012).

Trial Court Properly Disallowed Willfullness Argument. —

In a case in which defendant appealed her convictions for taking indecent liberties with a minor, in violation of G.S. 14-202.1 , she unsuccessfully argued that the trial court should have allowed defense counsel to argue to the jury that in order for defendant to have acted willfully, she must have been aware that the victim was underage and engaged in sexual activity with her anyway. Defendant’s contention regarding willfulness was simply a variant of her mistake of age argument, and the trial court properly refused to allow defendant’s willfulness argument as it was premised on an incorrect view of the law. State v. Breathette, 202 N.C. App. 697, 690 S.E.2d 1, 2010 N.C. App. LEXIS 374 (2010).

Satellite-Based Monitoring. —

Defendant qualified for lifetime satellite-based monitoring because he committed a “sexually violent offense” as defined in G.S. 14-208.6(5) by being convicted of taking incident liberties with a child in violation of G.S. 14-202.1 , although the trial court erroneously found that this was an “offense against a minor.” State v. Sims, 216 N.C. App. 168, 720 S.E.2d 398, 2011 N.C. App. LEXIS 2157 (2011).

Defendant’s prior conviction for indecent liberties supported the trial court’s finding that defendant was a recidivist for purposes of the satellite-based monitoring statute, G.S. 14-208.40 B, since: (1) a recidivist was a person who had a prior conviction for an offense that was described in G.S. 14-208.6(4); (2) G.S. 14-208.6(4) described a variety of offense classes, including sexually violent offenses; and (3) a sexually violent offense included the offense of taking indecent liberties with a child as described in G.S. 14-202.1 . State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Order For Satellite-Based Monitoring Proper. —

Trial court’s order was sufficient to require defendant’s enrollment in lifetime satellite-based monitoring (SBM) because the order fully complied with the requirements set forth in G.S. 14-208.40 A, and defendant was convicted of a reportable conviction as defined by G.S. 14-208.6(4) since he pleaded guilty to two counts of taking indecent liberties with a child in violation of G.S. 14-202.1 ; at sentencing, the State presented to the trial court evidence that defendant was a recidivist, and pursuant to G.S. 14-208.40 A(c), because the trial court found that defendant was a recidivist, it ordered him to enroll in SBM for life. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

Error In Ordering Lifetime Satellite-Based Monitoring. —

Trial court erred in finding that lifetime satellite-based monitoring was required for defendant and in failing to order that a risk assessment of defendant be performed pursuant to G.S. 14-208.40 A(d) prior to ordering him to enroll in a lifetime satellite-based monitoring program upon release from prison because defendant was convicted for first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1, not attempted rape of a child, pursuant to G.S. 14-27.2 A as found by the trial court; the trial court did not find that defendant was a sexually violent predator or that he was a recidivist, and it found that the offense was not an aggravated offense. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

Abuse of Trust as Aggravating Factor. —

Where defendant was convicted of taking indecent liberties with his stepson and stepson’s overnight guest, court properly found as an aggravating factor that he abused a position of trust and confidence to commit the offense. State v. Caldwell, 85 N.C. App. 713, 355 S.E.2d 813, 1987 N.C. App. LEXIS 2644 (1987).

Youth of Victim as Aggravating Factor. —

Aggravation of defendant’s sentence for taking indecent liberties with a minor on grounds that the 13-year-old victim was very young was error, as she was not for purposes of this offense “very young.” State v. Sumpter, 318 N.C. 102 , 347 S.E.2d 396, 1986 N.C. LEXIS 2573 (1986).

Finding that the eight-year-old victim was “very young” was not clearly erroneous; proof that the victim was “very young” was not necessary to prove the offense, and consequently the aggravating factor and the offense did not merge. United States v. Price, 812 F.2d 174, 1987 U.S. App. LEXIS 2445 (4th Cir. 1987).

The trial court improperly used the victim’s age as an aggravating factor because the State did not present evidence that “the victim was more vulnerable than other victims because of his age”; merely checking the AOC form is not sufficient to establish this aggravating factor except in cases where the child is of such tender age that the vulnerability is established by consideration of the nature of the crime. State v. Rudisill, 137 N.C. App. 379, 527 S.E.2d 727, 2000 N.C. App. LEXIS 321 (2000).

Prior Convictions as Aggravating Factors. —

Appellate court found no error in the trial court’s determination, by a preponderance of the evidence, that defendant’s prior North Carolina convictions for assault inflicting serious injury and larceny merited one point each because that determination was a fact of a prior conviction and not precluded by Blakely or Allen. The trial court also properly determined, by a preponderance of the evidence, that four of defendant’s out-of-state convictions were substantially similar to offenses under North Carolina law; thus, defendant’s sentence of 25 to 30 months for each violation of G.S. 14-202.1 , to be served consecutively, was affirmed. State v. Hadden, 175 N.C. App. 492, 624 S.E.2d 417, 2006 N.C. App. LEXIS 190 (2006).

Crime of Violence for U.S. Sentencing Guidelines Manual Enhancements. —

In sentencing defendant for violating 8 U.S.C.S. § 1326, and applying U.S. Sentencing Guidelines Manual §§ 2L1.2(b)(1)(A)(ii) and 4A1.1(c) enhancements based on his prior conviction for violating G.S. 14-202.1 , a crime of violence, a district court committed procedural error because it prefaced its sentence with obligatory language that showed it impermissibly presumed a Guidelines sentence was appropriate. United States v. Mendoza-Mendoza, 597 F.3d 212, 2010 U.S. App. LEXIS 4738 (4th Cir. 2010).

Conviction for Taking Indecent Liberties With a Child Not an Aggravated Offense Warranting Order for Satellite-Based Monitoring. —

Defendant’s conviction for taking indecent liberties with a child, a violation of G.S. 14-202.1 , was not an aggravated offense, as defined by G.S. 14-208.6(1a), and, therefore, the trial court erred in ordering defendant to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 B. State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562, 2010 N.C. App. LEXIS 34 (2010).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Where two or more offenses are joined for judgment, one offense may properly be aggravated by evidence needed to prove a separate joined offense; in a case where sexual offense by a person in a parental role was not the most serious crime in the consolidated judgment and thus was not the offense from which defendant’s sentence was derived, the aggravator of abusing a position of trust did not apply to the crime of sexual offense by a person in a parental role, but rather properly applied to the most serious offense in each of the two consolidated judgments, the statutory sexual offense of a person aged 13, 14, or 15. State v. Tucker, 357 N.C. 633 , 588 S.E.2d 853, 2003 N.C. LEXIS 1411 (2003).

Defendant’s Sixth Amendment right to a public trial was not violated when the trial court closed the courtroom during the 13-year-old’s necessary testimony, given the sexual nature of the charges of taking indecent liberties with a child, the quasi-familial relationship with defendant, the type of other people present in the courtroom, the limited time and scope of the closure, and the lack of any reasonable alternatives to closing the courtroom. State v. Godley, 234 N.C. App. 562, 760 S.E.2d 285, 2014 N.C. App. LEXIS 670 (2014).

Multiple Short-Form Indictments Did Not Create a Danger of Ununanimous Verdicts. —

Appellate court erred in reversing defendant’s convictions of first-degree statutory rape, G.S. 14-27.2 , and taking indecent liberties with a minor, G.S. 14-202.1(a)(1), as defendant was properly charged by short-form indictments on all the charges as authorized by G.S. 15-144.2(a), because there was no danger of a nonunanimous verdict resulting from the multiple indictments in violation of N.C. Const. Art. 1, § 24, and G.S. 15A-1237(b), as even if some jurors disagreed on the kinds of sexual misconduct committed, the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of any immoral, improper, or indecent liberties as required by G.S. 14-202.1(a)(1), and because defendant was indicted on five counts of statutory rape, the victim testified to five specific incidents of statutory rape, and five verdicts of guilty were returned. State v. Lawrence, 360 N.C. 368 , 627 S.E.2d 609, 2006 N.C. LEXIS 30 (2006).

Unanimous Verdict Requirement. —

Defendant’s claim, that his right to a unanimous jury verdict as to each of the charges against him was violated because none of the verdict sheets set out the specific actus reus that the jury had to find in order to convict, was rejected as the indecent liberties statute did not list distinct criminal offenses in the disjunctive. State v. Brigman, 178 N.C. App. 78, 632 S.E.2d 498, 2006 N.C. App. LEXIS 1298 (2006).

Defendant was not deprived of defendant’s right to a unanimous jury verdict as to charges of first-degree statutory sexual offense under G.S. 14-27.2 , statutory sexual offense against a person who was 13, 14, or 15 years old under G.S. 14-27.4(a)(1), taking indecent liberties with a child under G.S. 14-202.1 , second-degree forcible sexual offense under G.S 14-27.5, and assault on a female by a male at least 18 years of age under G.S. 14-33(c)(2) as: (1) the indictments were valid absent the inclusion of the specific acts that constituted the alleged sexual offenses; (2) the jury instructions and verdict sheets for each offense specifically identified each case by its number, listed the date on which each offense was alleged to have occurred, and listed the specific acts which were to serve as the underlying basis for each offense; (3) the jury was instructed specifically in each case in which defendant was charged with multiple counts of the same offense involving the same victim; (4) there was nothing in the record to indicate that the jury was confused by either the trial court’s instructions or the verdict sheets; and (5) the jury was polled following the announcement of the verdicts. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

In defendant’s trial on charges of taking indecent liberties with a child, defendant’s constitutional right to a unanimous jury verdict, N.C. Const. Art I, § 24, was not violated by the trial court’s jury instructions and the verdict sheets because the trial court’s instructions explicitly distinguished among the five indecent liberties charges and directed the jurors to find defendant guilty on each count only if they determined that defendant had committed the requisite acts within the designated time periods, which were set forth in the indictments, and, as the court informed the jurors in its instructions, each verdict sheet was paired with a particular indictment as indicated in the top right-hand corner of the verdict sheet. State v. Comeaux, 224 N.C. App. 595, 741 S.E.2d 346, 2012 N.C. App. LEXIS 1475 (2012).

Offenses Committed Prior to October 1, 1994. —

Judgments sentencing defendant for indecent liberties with a child incorrectly showed the offenses to be Class F felonies because defendant committed the offenses prior to October 1, 1994; therefore, under G.S. 14-202.1 , the felony of indecent liberties with a child was a Class H felony. State v. Lawrence, 193 N.C. App. 220, 667 S.E.2d 262, 2008 N.C. App. LEXIS 1742 (2008); State v. Worley, 198 N.C. App. 329, 679 S.E.2d 857, 2009 N.C. App. LEXIS 1167 (2009).

Sentence Proper. —

Amendments to the sentencing statutes did not affect defendant’s sentencing for the offense of indecent liberties. State v. Agustin, 229 N.C. App. 240, 747 S.E.2d 316, 2013 N.C. App. LEXIS 881 (2013).

II.Elements and Proof of Offense

Single Offense Provable by Commission of Various Acts. —

The crime of indecent liberties is a single offense which may be proved by evidence of the commission of any one of a number of acts; the evil the legislature sought to prevent in this context is a defendant’s performance of any immoral, improper, or indecent act in the presence of a child “for the purpose of arousing or gratifying sexual desire.” State v. Hartness, 326 N.C. 561 , 391 S.E.2d 177, 1990 N.C. LEXIS 240 (1990).

In order to obtain a conviction of taking indecent liberties with a minor, the State must prove that (1) the defendant was at least 16 years of age, (2) he was five years older than his victim, (3) he willfully took or attempted to take an indecent liberty with the victim, (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred, and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire. State v. Rhodes, 321 N.C. 102 , 361 S.E.2d 578, 1987 N.C. LEXIS 2489 (1987).

Elements of the offense of taking indecent liberties with a minor are: (1) the defendant was at least 16 years of age; (2) he was five years older than his victim; (3) he willfully took or attempted to take an indecent liberty with the victim; (4) the victim was under 16 years of age at the time the alleged act or attempted act occurred; and (5) the action by the defendant was for the purpose of arousing or gratifying sexual desire. State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774, 2005 N.C. App. LEXIS 250 (2005).

Attempt. —

Evidence proffered was sufficient to show that defendant committed the inchoate crime of attempted indecent liberties with children and attempted solicitation of a minor, even though the minor was an adult police officer posing as a child, because the warrant application recounted numerous sexually explicit instant message conversations between defendant and individuals who defendant believed were children, in which he asked to meet the “children” to engage in sexual conduct, and the warrant application also stated that defendant transmitted a video of himself masturbating. State v. Ellis, 188 N.C. App. 820, 657 S.E.2d 51, 2008 N.C. App. LEXIS 272 (2008).

What Intent State Must Prove. —

Language requiring intent to commit an unnatural sexual act no longer appears in this section. The State need now only prove a “purpose of arousing or gratifying sexual desire.” State v. Hicks, 79 N.C. App. 599, 339 S.E.2d 806, 1986 N.C. App. LEXIS 2090 (1986).

Indictments Held Sufficient. —

Indictments were sufficiently specific under this section, where the indictments quoted the language of the statute, even though they did not describe the nature of the sex acts. State v. Blackmon, 130 N.C. App. 692, 507 S.E.2d 42, 1998 N.C. App. LEXIS 1157 (1998).

Indictment charging defendant with statutory sexual offense under G.S. 14-27.2 , statutory sexual offense of a person who was 13, 14, or 15 years of age under G.S. 14-27.7 A, taking indecent liberties with a child under G.S. 14-202.1 , and forcible sexual offense under G.S. 14-27.5 that did not list the specific underlying sexual acts was valid, as the jury was instructed on the specific sexual acts that were to serve as the underlying act for each charged offense; when a short form indictment properly alleged the essential elements of the offense, it did not have to allege every matter required to be proved on the trial under G.S. 15-144.2(a), and indictments charging indecent liberties with a child or a sexual offense were valid even when they did not contain a specific allegation regarding which specific sexual act was committed. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Variance Between Indictment and Proof is Cause for Dismissal. —

Even in child sexual abuse cases, a variance as to time becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense; while time variances do not always prejudice a defendant so as to require dismissal, even when an alibi is involved, when the defendant relies on the date set forth in the indictment, but the State’s evidence substantially varies to the prejudice of defendant’s alibi defense, the interests of justice and fair play require that the defendant’s motion for dismissal be granted. In a case charging the defendant with taking indecent liberties with a child, where the State’s proof failed to show that alleged abuse occurred on the dates in the indictment, where the defendant had relied on those dates in building his alibi defense, and where all the evidence presented at trial went to sexual encounters over a period of years that ended a significant period of time prior to the dates listed in the indictment, defendant’s motion to dismiss should have been granted, and defendant’s conviction was reversed on appeal. State v. Custis, 162 N.C. App. 715, 591 S.E.2d 895, 2004 N.C. App. LEXIS 245 (2004).

Conviction on Bill of Particulars Not Required. —

Trial court did not err during defendant’s trial on the charge of taking indecent liberties with a child by denying the defendant’s motion to require the jury to convict him on specific acts set out in a bill of particulars; even if some jurors found that one type of sexual conduct occurred and other jurors found that another type of sexual conduct occurred, the jury as a whole could unanimously find that there occurred sexual conduct within the ambit of immoral, improper, or indecent liberties. State v. Brothers, 151 N.C. App. 71, 564 S.E.2d 603, 2002 N.C. App. LEXIS 653 (2002).

Motion to Dismiss Properly Denied. —

Because the State presented substantial evidence of each element of the crime of indecent liberties with a child, the trial court correctly denied defendant’s motion to dismiss at the close of the evidence. State v. Agustin, 229 N.C. App. 240, 747 S.E.2d 316, 2013 N.C. App. LEXIS 881 (2013).

Trial court did not err in denying defendant’s motion to dismiss at the close of all the evidence the charge against defendant of taking indecent liberties with a child because the court was correct in allowing the jury to make the determination of whether the evidence of defendant’s repeated sexual assaults of the victim were for the purpose of arousing or gratifying sexual desire. State v. Kpaeyeh, 246 N.C. App. 694, 784 S.E.2d 582, 2016 N.C. App. LEXIS 363 (2016).

Defendant’s purpose for committing an act prohibited by this section is the gravamen of this offense; the particular act performed is immaterial. State v. Hartness, 326 N.C. 561 , 391 S.E.2d 177, 1990 N.C. LEXIS 240 (1990).

That the action was for the purpose of arousing or gratifying sexual desire may be inferred from the evidence of the defendant’s actions. State v. Rhodes, 321 N.C. 102 , 361 S.E.2d 578, 1987 N.C. LEXIS 2489 (1987).

Inference of Arousal or Gratification of Sexual Desire. —

Where the evidence established that, while alone in a drug store bathroom with the five year old victim, defendant touched her chest and her vaginal area, that touching was sufficient to permit the jury to infer that defendant’s purpose in doing so was to arouse himself or to gratify his sexual desire. State v. Rogers, 109 N.C. App. 491, 428 S.E.2d 220, 1993 N.C. App. LEXIS 337 (1993), cert. denied, 334 N.C. 625 , 435 S.E.2d 348, 1993 N.C. LEXIS 455 (1993), cert. denied, 511 U.S. 1008, 114 S. Ct. 1378, 128 L. Ed. 2d 54, 1994 U.S. LEXIS 2558 (1994).

Evidence that defendant was obsessed with women’s legs and would follow women around in public places to look at their legs was sufficient to find that his conduct in kneeling down next to a juvenile in a Target store was for the purpose of arousing or gratifying sexual desire for purposes of G.S. 14-202.1 . State v. Sims, 216 N.C. App. 168, 720 S.E.2d 398, 2011 N.C. App. LEXIS 2157 (2011).

Defendant’s indecent liberties with the victim were illustrated by the State’s witnesses, including the victim’s testimony that the defendant kissed her and touched her private areas under her clothing; this testimony, coupled with other instances of the defendant’s alleged sexual misconduct that gave rise to first-degree rape charges, were sufficient to infer his purpose of arousing or gratifying his sexual desire, and the trial court did not err in denying the defendant’s motion to dismiss. State v. Godley, 234 N.C. App. 562, 760 S.E.2d 285, 2014 N.C. App. LEXIS 670 (2014).

Purpose, being a mental attitude, is seldom provable by direct evidence and must ordinarily be proven by inference. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139, 1988 N.C. App. LEXIS 310 (1988), overruled in part, State v. Hinnant, 351 N.C. 277 , 523 S.E.2d 663, 2000 N.C. LEXIS 9 (2000).

Touching Not Required. —

It is not necessary that there be a touching of the child by the defendant in order to constitute an indecent liberty within the meaning of this section. State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574, 1981 N.C. App. LEXIS 2432 (1981); State v. Kistle, 59 N.C. App. 724, 297 S.E.2d 626, 1982 N.C. App. LEXIS 3193 (1982).

The word “with” is not limited to mean only a physical touching. State v. Turman, 52 N.C. App. 376, 278 S.E.2d 574, 1981 N.C. App. LEXIS 2432 (1981).

No actual touching of a child is necessary to complete the offense described in this section. State v. Hicks, 79 N.C. App. 599, 339 S.E.2d 806, 1986 N.C. App. LEXIS 2090 (1986).

Evidence of vaginal penetration was not necessary to prove the offense defendant pled guilty to and was sentenced for (taking indecent liberties with a child); therefore, the finding that his conduct indicated he was guilty of the greater offense charged was not forbidden by G.S. 15A-1340.4(a)(1). State v. Parker, 92 N.C. App. 102, 373 S.E.2d 558, 1988 N.C. App. LEXIS 980 (1988).

Conduct under G.S. 14-202.1 “related to” nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification, thus, defendant’s prior conviction under G.S. 14-202.1 triggered the sentencing enhancement in 18 U.S.C.S. § 2252A(b)(2), which did not require physical contact; United States v. Gilbert, 425 Fed. Appx. 212, 2011 U.S. App. LEXIS 8815 (4th Cir. 2011).

A defendant need not be within a certain distance of or in close proximity to the child under subdivision (a)(1) of this section. State v. Strickland, 77 N.C. App. 454, 335 S.E.2d 74, 1985 N.C. App. LEXIS 4087 (1985).

Taking photographs of nude female child in clearly sexually suggestive position violates section. State v. Kistle, 59 N.C. App. 724, 297 S.E.2d 626, 1982 N.C. App. LEXIS 3193 (1982).

Constructive Presence. —

Where defendant, the headmaster of a school, took advantage of an authoritative position of trust by asking the victim, a fifteen year old student, to try out uniforms so that he could secretly film, and later observe her in a state of undress, defendant was “constructively present” and thereby took immoral, improper or indecent liberties “with” the minor victim. State v. McClees, 108 N.C. App. 648, 424 S.E.2d 687, 1993 N.C. App. LEXIS 124 (1993).

By using the telephone to have sexually explicit conversations with the 15-year-old victim, defendant had virtually the same capability to hear and be heard by the victim as defendant would have had if defendant were in the same room with the victim, and because defendant’s conduct would have constituted the taking of indecent liberties if defendant were in the victim’s actual presence, the use of the phone rendered defendant constructively present under the circumstances and in violation of this section. State v. Every, 157 N.C. App. 200, 578 S.E.2d 642, 2003 N.C. App. LEXIS 538 (2003).

Age of the victim is an element of the offense which proscribes taking indecent liberties with a child under the age of 16 years. United States v. Price, 812 F.2d 174, 1987 U.S. App. LEXIS 2445 (4th Cir. 1987).

Age as an Aggravating Factor. —

Where age is an element of the offense, as with taking indecent liberties with children, if the evidence, by its greater weight, shows that the age of the victim caused the victim to be more vulnerable to the crime committed against him than he otherwise would have been, the trial court can properly find the statutory aggravating factor based on age. If, however, the evidence shows that the victim was not more vulnerable than any other victim of the same crime would have been, the statutory aggravating factor that the victim was “very young” cannot properly be found. State v. Farlow, 336 N.C. 534 , 444 S.E.2d 913, 1994 N.C. LEXIS 291 (1994).

Alcohol as Aggravating Factor. —

Trial court did not err in finding the fact that defendant furnished alcohol to sisters and then victimized them was a nonstatutory aggravating factor where a preponderance of evidence supported that finding, and the State was not required to prove, pursuant to G.S. 15A-1340.16(d) regarding aggravating factors, that the sisters were under the age of 16, even though the State did have to prove the sisters were under age 16 in order to convict under G.S. 14-202.1 , regarding taking indecent liberties. State v. Bowers, 146 N.C. App. 270, 552 S.E.2d 238, 2001 N.C. App. LEXIS 866 (2001).

A parental or familial relationship is not a necessary element of the crime of taking indecent liberties with children. State v. Caldwell, 85 N.C. App. 713, 355 S.E.2d 813, 1987 N.C. App. LEXIS 2644 (1987).

Allowing Testimony as to Age of Defendant Not Error. —

In a prosecution for first degree sexual offenses and taking indecent liberties with minors, the trial court did not err in allowing a deputy to testify as to his opinion that defendant appeared to be between 29 and 30 years of age since it was not necessary for the State to prove defendant’s exact age in order to convict him of any of the crimes charged, and the deputy had ample opportunity to observe defendant during the booking process and in the courtroom. State v. Banks, 322 N.C. 753 , 370 S.E.2d 398, 1988 N.C. LEXIS 479 (1988).

Testimony of Rape Supported Finding. —

Where children’s testimony showed that defendant raped each of them, evidence supported finding that he had taken indecent liberties with them. State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467, 1989 N.C. App. LEXIS 86 (1989).

Medical opinion evidence that the vagina of the victim had been penetrated was relevant to the charge of taking indecent liberties with a child, even though the child’s testimony did not mention penetration. State v. Baker, 333 N.C. 325 , 426 S.E.2d 73, 1993 N.C. LEXIS 34 (1993).

Photographs of male models and men in underwear were properly admitted into evidence in defendant’s trial for taking indecent liberties with a child and crime against nature. State v. Creech, 128 N.C. App. 592, 495 S.E.2d 752, 1998 N.C. App. LEXIS 143 (1998).

Evidence Held Sufficient. —

Evidence that 32-year-old defendant led his 12-year-old victim, in the course of playing hide-and-go-seek, into a dark dog shed, that while hiding there defendant put his arm around the victim, placed his hand between her legs and underneath her softball shorts and rubbed her vagina with his finger, and that when the victim tried to move away, defendant pulled her back to him and fondled her again, was sufficient to warrant the inference that the defendant willfully took indecent liberties with the child for the purpose of arousing or gratifying his sexual desire. State v. Slone, 76 N.C. App. 628, 334 S.E.2d 78, 1985 N.C. App. LEXIS 3916 (1985).

Evidence that defendant not only approached and menaced nine-year-old victim, but did so with a repeatedly announced desire to engage in sexual activity, and that he exposed his penis and placed his hand on it while within several feet of victim sufficed to show that defendant took or attempted to take an immoral liberty with victim for the purpose of arousing or gratifying sexual desire. State v. Hicks, 79 N.C. App. 599, 339 S.E.2d 806, 1986 N.C. App. LEXIS 2090 (1986).

Evidence held sufficient to warrant the inference that the defendant willfully took or attempted to take an indecent liberty with a child for the purpose of arousing or gratifying his sexual desire. State v. Bowman, 84 N.C. App. 238, 352 S.E.2d 437, 1987 N.C. App. LEXIS 2480 (1987).

Evidence was sufficient to convict defendant of five counts of indecent liberties under subdivision (1) of subsection (a) of this section, each count coinciding with an episode of intercourse described by one of his two children, where the State presented evidence that in each instance the defendant ordered his victim to undress and lie down, then exposed his penis before proceeding with the act of intercourse. State v. Etheridge, 319 N.C. 34 , 352 S.E.2d 673, 1987 N.C. LEXIS 1822 (1987).

Corroborated testimony of child who was nine at the time of the offense that 20-year-old defendant rubbed against her until he ejaculated was sufficient evidence to permit the jury to find beyond a reasonable doubt that defendant took indecent liberties with her for the purpose of gratifying his sexual desire. State v. Griffin, 319 N.C. 429 , 355 S.E.2d 474, 1987 N.C. LEXIS 2026 (1987).

Evidence was held sufficient to permit the jury to infer that defendant took indecent liberties with four-year-old victim for the purpose of arousing or gratifying his sexual desire. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139, 1988 N.C. App. LEXIS 310 (1988), overruled in part, State v. Hinnant, 351 N.C. 277 , 523 S.E.2d 663, 2000 N.C. LEXIS 9 (2000).

Where the victim testified that she and defendant were alone in the family’s mobile home when she and defendant “started picking at each other . . . just playing,” and defendant went up and under her blouse and he started rubbing her, and the victim also testified that before she and defendant went into the bedroom, defendant went into the kitchen and locked the back screen door, and defendant stopped rubbing her when her brother attempted to enter the locked back door, the jury could properly infer that defendant’s action in rubbing the victim’s breasts was for the purpose of arousing or gratifying his sexual desire. State v. Bruce, 90 N.C. App. 547, 369 S.E.2d 95, 1988 N.C. App. LEXIS 630 (1988).

Where the defendant, a 30-year-old man, waited until all the other adults were in another part of the house, entered the room where the victims lay, got into bed between the children and kissed each of them, putting his tongue into their mouths, ears and noses, and he then threatened to strike the children and kill their mother if they told anyone what he had done, the acts of kissing were “immoral, improper, or indecent” acts within the meaning of subsection (1) of the statute and were “lewd or lascivious” acts within the meaning of subsection (2) of the statute. State v. Banks, 322 N.C. 753 , 370 S.E.2d 398, 1988 N.C. LEXIS 479 (1988).

Where evidence of the age of both victim and defendant was presented at trial, the victim testified as to the date of the offense and that defendant “put his private parts in my private parts,” there was plenary evidence in the record as to each of the essential elements of the offense of taking indecent liberties with a child. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544 , 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

Testimony of 13-year-old victim that intruder was feeling on his “private area” permitted the jury to reasonably conclude that the activity concerned the victim’s genital area, and taken with the remainder of State’s evidence, was sufficient to establish the underlying felony of taking indecent liberties with a child and, a fortiori, the offense of first-degree burglary. State v. Oakman, 97 N.C. App. 433, 388 S.E.2d 579, 1990 N.C. App. LEXIS 135 (1990).

Where a child’s mother knowingly engaged in anal intercourse with her husband in the presence of their child; engaged in sexual activity with another woman in the presence of her child; watched her child engage in vaginal intercourse with an adult woman, and where her husband told the child to engage in sexual activity with the other woman, the jury could reasonably infer from these acts that the child’s mother and her husband willfully engaged in an immoral, improper or indecent liberty with the child to arouse or gratify her own sexual desire. State v. Ainsworth, 109 N.C. App. 136, 426 S.E.2d 410, 1993 N.C. App. LEXIS 213 (1993).

Evidence of defendant’s age held sufficient to sustain conviction for the offense of taking indecent liberties with a child. State v. Bynum, 111 N.C. App. 845, 433 S.E.2d 778, 1993 N.C. App. LEXIS 940 (1993).

There was substantial evidence that defendant committed an indecent liberty with a child for the purpose of arousing or gratifying sexual desire because an exhibit the State introduced depicted defendant and a naked child in a sexually suggestive pose; the State also presented numerous nude photographs of defendant and the victim at trial in addition to that exhibit. State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53, 2009 N.C. App. LEXIS 55 (2009).

In a case in which defendant was convicted on four counts of indecent liberties with a minor, the trial court did not err in not dismissing three of those counts since: (1) one count was based on the allegation that defendant fondled a minor female’s breasts; (2) another count was based on allegations the defendant encouraged, facilitated, and aided that minor female to engage in sexual acts with two minor males and/or watched her engage in sexual acts with other juveniles; and (3) the third count was based on allegations the defendant encouraged, facilitated, and/or aided a minor male to engage in sexual acts with the minor female and/or watched such sexual acts. State v. Coleman, 200 N.C. App. 696, 684 S.E.2d 513, 2009 N.C. App. LEXIS 1724 (2009).

Although defendant was unbeknownst to defendant exchanging e-mail messages with a police officer posing as a minor child, an actual child victim was not required to sustain a charge or attempt conviction of taking indecent liberties with a child. Furthermore, the State of North Carolina presented substantial evidence that defendant believed the person with whom defendant was exchanging messages and sexually pursuing was an underage minor, rather than an adult who was engaged in a role playing fantasy. State v. Heelan, 263 N.C. App. 275, 823 S.E.2d 106, 2018 N.C. App. LEXIS 1253 (2018).

Evidence Held Insufficient. —

Defendant’s conviction for indecent liberties with a minor was upheld on appeal where the evidence showed that the victim was 12 years old and defendant was over the age of 16 and at least five years older than the victim; additional evidence, considered in the light most favorable to the State, showed that the victim awoke after passing out to find defendant on top of her, with her pants and underwear pulled down and subsequent vaginal and anal area pain occurred. State v. Thaggard, 168 N.C. App. 263, 608 S.E.2d 774, 2005 N.C. App. LEXIS 250 (2005).

Defendant’s conviction for indecent liberties with a minor was reversed, and the trial court erred by denying defendant’s request to dismiss that charge, because there was no substantial evidence that defendant brushed against his niece’s breasts for the purpose of arousing sexual desire, and defendant’s purpose for committing the offense is a gravamen of the offense. State v. Stanford, 169 N.C. App. 214, 609 S.E.2d 468, 2005 N.C. App. LEXIS 529 , dismissed, 359 N.C. 642 , 617 S.E.2d 657, 2005 N.C. LEXIS 682 (2005).

Where defendant’s conversations with a minor were neither sexually graphic nor accompanied by other actions tending to show defendant’s purpose was sexually motivated, the evidence was insufficient to support a charge of taking indecent liberties in violation of G.S. 14-202.1(a)(1), so the trial court erred in denying defendant’s motion to dismiss the charge. State v. Brown, 162 N.C. App. 333, 590 S.E.2d 433, 2004 N.C. App. LEXIS 121 (2004).

Sufficient evidence supported convictions for taking indecent liberties with a child under G.S. 14-202.1 , statutory sex offense under G.S. 14-27.7 A(a), and sexual activity by a custodian, G.S. 14-27.7 (a), where the 15-year-old victim, a patient in a behavioral hospital, testified that she had engaged in sexual activity with defendant, a mental health technician at the hospital, and where the victim’s mother and sister also testified that the victim told them about her interactions with defendant, and that they heard firsthand telephone conversations between the victim and defendant regarding specific sexual activity. State v. Evans, 162 N.C. App. 540, 591 S.E.2d 564, 2004 N.C. App. LEXIS 180 (2004).

Evidence was insufficient to support defendant’s conviction on one of the two counts charged against him of indecent liberties with children; the State, at most, only proved that a single sex act occurred, which could only support one of the two convictions, and not both convictions. State v. Jones, 172 N.C. App. 308, 616 S.E.2d 15, 2005 N.C. App. LEXIS 1580 (2005).

Testimony of child victim held sufficient for the jury to find the dates of the offenses. State v. Swann, 322 N.C. 666 , 370 S.E.2d 533, 1988 N.C. LEXIS 484 (1988).

Evidence that defendant disrobed in children’s presence, and that he engaged in intercourse with each child in presence of other supported finding of indecent liberties offense. State v. Hewett, 93 N.C. App. 1, 376 S.E.2d 467, 1989 N.C. App. LEXIS 86 (1989).

The uncorroborated testimony of the victim is sufficient to convict under this section if the testimony establishes all of the elements of the offense. State v. Quarg, 334 N.C. 92 , 431 S.E.2d 1, 1993 N.C. LEXIS 286 (1993).

III.Evidence

Expert Testimony Improperly Admitted as Substantive Evidence. —

In defendant’s trial for first-degree rape and taking indecent liberties with a child, the trial court admitted expert’s testimony as substantive evidence. To do so was error because expert testimony regarding the symptoms and characteristics of sexually abused children is admissible only to assist the jury in understanding the behavior patterns of sexually abused children, and must be so limited by the trial court. State v. Hutchens, 110 N.C. App. 455, 429 S.E.2d 755, 1993 N.C. App. LEXIS 503 , writ denied, 334 N.C. 166 , 432 S.E.2d 356, 1993 N.C. LEXIS 281 (1993).

Expert Testimony About Behaviors Observed in Children Who Have Experienced Sexual Abuse. —

Trial court did not abuse its discretion by allowing an expert witness who was called by the State during defendant’s trial on charges of attempted first-degree rape and taking indecent liberties with a minor to testify about common characteristics and behaviors observed in children who experienced sexual abuse, even though the witness did not interview the victim or talk to her parents. State v. McCall, 162 N.C. App. 64, 589 S.E.2d 896, 2004 N.C. App. LEXIS 12 (2004).

Competency of Six-Year-Old Victim. —

In sexual offense case, fact that six-year-old victim testified without objection that she was six years old and had one brother who was eight years old, named the school she attended, gave her teacher’s name and where she lived, and said that she was going to tell the truth clearly supported the trial judge’s conclusion that the six-year-old victim was competent to testify; thus, the trial judge’s failure to conduct a voir dire examination to establish the child’s competency was not prejudicial error. State v. Gilbert, 96 N.C. App. 363, 385 S.E.2d 815, 1989 N.C. App. LEXIS 992 (1989).

Closed Circuit Television in Voir Dire Hearing. —

Where, during voir dire hearing as to four-year-old victim’s competency as a witness in prosecution for taking indecent liberties, defendant, although absent from the courtroom, was able to hear all testimony, interact freely with his attorney, and through his attorney confront the victim, thereby accomplishing effective cross-examination, the exclusion of defendant from the courtroom did not violate N.C. Const., Art. I, § 18, 19 or 23, as the trial court’s use of a closed circuit television and its act of providing defendant and his attorney adequate opportunity to communicate during the victim’s testimony were sufficient to permit defendant to hear the evidence and to refute it. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139, 1988 N.C. App. LEXIS 310 (1988), overruled in part, State v. Hinnant, 351 N.C. 277 , 523 S.E.2d 663, 2000 N.C. LEXIS 9 (2000).

Closed Courtroom. —

In defendant’s trial on charges of taking indecent liberties with a child, G.S. 14-202.1 , defendant’s constitutional right to a public trial was not violated when the trial court closed the courtroom during the victim’s testimony, G.S. 15-166 , because the trial court made appropriate findings of fact utilizing the four-part test in Waller v. Georgia, 467 U.S. 39; defendant’s wife, who was excluded, had engaged in behavior designed to intimidate the minor victim. State v. Comeaux, 224 N.C. App. 595, 741 S.E.2d 346, 2012 N.C. App. LEXIS 1475 (2012).

The uncorroborated testimony of a victim under this section is sufficient to convict a defendant if such testimony suffices to establish all the elements of the offense. State v. Vehaun, 34 N.C. App. 700, 239 S.E.2d 705, 1977 N.C. App. LEXIS 1796 (1977), cert. denied, 294 N.C. 445 , 241 S.E.2d 846, 1978 N.C. LEXIS 1283 (1978).

Child victim’s uncorroborated testimony was sufficient to convict a juvenile defendant for committing indecent liberties between children under G.S. 14-202.1 , since the State’s evidence established that, at the time of the incident, the victim was seven and defendant was 15, and that defendant masturbated in front of the victim. Because the State established each element of the offense, the victim’s testimony was sufficient to support the conviction. In re B.E., 186 N.C. App. 656, 652 S.E.2d 344, 2007 N.C. App. LEXIS 2255 (2007).

There was substantial evidence that defendant committed an indecent liberty with a child based upon an incident when he asked the victim to touch his penis in the shower because the victim’s testimony established all of the elements of the offense. State v. Martin, 195 N.C. App. 43, 671 S.E.2d 53, 2009 N.C. App. LEXIS 55 (2009).

Record contained sufficient evidence that defendant was “with” children, within the meaning of this section, when he used his dogs to encourage children to come to his yard and then exposed himself from within a nearby glass door. State v. Nesbitt, 133 N.C. App. 420, 515 S.E.2d 503, 1999 N.C. App. LEXIS 509 (1999).

Evidence of Similar Conduct. —

In prosecution for taking indecent liberties with a minor, evidence that defendant had, on occasions other than that at issue, engaged in similar sexual conduct with victim and her sister was competent to show defendant’s intent, motive and on-going plan to gratify his sexual desires while ostensibly baby-sitting the children. State v. Sturgis, 74 N.C. App. 188, 328 S.E.2d 456, 1985 N.C. App. LEXIS 3439 (1985).

In a prosecution for taking immoral, improper, and indecent liberties with a female under the age of 16, evidence of prior misconduct by the defendant toward the prosecuting witness was admissible as an exception to the rule that evidence of independent offenses is not admissible. State v. Jenkins, 35 N.C. App. 758, 242 S.E.2d 505, 1978 N.C. App. LEXIS 3077 , cert. denied, 295 N.C. 470 , 246 S.E.2d 11, 1978 N.C. LEXIS 925 (1978).

Defendant’s prior sexual acts in the presence of children were admitted to show his purpose of arousing or gratifying sexual desire. State v. Beckham, 145 N.C. App. 119, 550 S.E.2d 231, 2001 N.C. App. LEXIS 559 (2001).

Where defendant had sexually explicit conversations with a 15-year-old former karate student in violation of this section, the trial court’s admission of evidence of defendant’s subsequent conduct with another student where there were certain similarities was not prejudicial under the circumstances. State v. Every, 157 N.C. App. 200, 578 S.E.2d 642, 2003 N.C. App. LEXIS 538 (2003).

Defendant was convicted of taking indecent liberties with a 15-year-old girl by giving her a letter in which he proposed, in graphic language, to have intercourse and oral sex with her. He was not entitled to relief due to counsel’s alleged ineffectiveness in not objecting to the admission of testimony that he gave a similar letter to another child, as he failed to show that absent the admission of the disputed testimony the jury probably would have returned a different verdict. State v. McClary, 198 N.C. App. 169, 679 S.E.2d 414, 2009 N.C. App. LEXIS 1104 (2009).

Evidence of Touching Supported Only One Charge. —

Trial court erred in denying motion to dismiss one of the two charges of indecent liberties because a single act could support only one conviction; the evidence showed that the sole act involved was touching and that there was no gap in time between defendant’s touching of the victim’s breasts and putting his hand inside the waistband of the victims’ pants. State v. Laney, 178 N.C. App. 337, 631 S.E.2d 522, 2006 N.C. App. LEXIS 1398 (2006).

Evidence Supported Multiple Counts. —

Evidence that defendant had sex with his girlfriend in the presence of his daughter, performed oral sex on the daughter, and then watched as his girlfriend performed oral sex on his daughter supported multiple counts of indecent liberties, as each action constituted a separate sexual act. State v. Pierce, 238 N.C. App. 537, 767 S.E.2d 860, 2014 N.C. App. LEXIS 1351 (2014).

Defendant’s Statements Concerning Prior Incidents. —

In a case of first degree sexual offense and taking indecent liberties with two young boys, defendant’s statement to detective concerning prior incidents of taking indecent liberties with two young girls was relevant to show defendant’s unnatural lust, intent or state of mind. State v. Reeder, 105 N.C. App. 343, 413 S.E.2d 580, 1992 N.C. App. LEXIS 236 (1992).

Composition Book Entry. —

Defendant’s conviction of indecent liberties with a child under G.S. 14-202.1 was reversed as a composition book entry relating to defendant’s forced anal intercourse with an adult woman was inadmissible under G.S. 8C-1 , N.C. R. Evid. 401 and 404(b) to prove intent and sexual gratification since the actual force used in the composition book was not analogous to the constructive force theory between a parent and a child; the writings did not give rise to any inference that defendant was desirous of or obtained sexual gratification from anal intercourse with his four- or six-year-old son. State v. Davis, 726 S.E.2d 900, 2012 N.C. App. LEXIS 764 (N.C. Ct. App. 2012), op. withdrawn, 2012 N.C. App. LEXIS 824 (N.C. Ct. App. June 29, 2012), sub. op., 222 N.C. App. 562, 731 S.E.2d 236, 2012 N.C. App. LEXIS 1030 (2012).

Evidence Supported Finding of Abuse. —

The trial court’s findings of fact regarding child’s status as an abused juvenile were supported by clear and convincing evidence where the child testified that her father had shown her a picture of a woman wearing a see-through dress, the child’s friend drew a picture in court of what she had seen, i.e. the father’s anatomy, a social worker testified that the child had told her that her father had “asked her to touch his penis,” and a doctor testified that the child had told her that her father had asked her to look at a “dirty book.” In re Cogdill, 137 N.C. App. 504, 528 S.E.2d 600, 2000 N.C. App. LEXIS 425 (2000).

Victim’s testimony that defendant tickled her in her private parts, that he was tickling her leg and would start going up to her private parts, provided substantial evidence in support conviction for taking indecent liberties with a child. State v. Verrier, 173 N.C. App. 123, 617 S.E.2d 675, 2005 N.C. App. LEXIS 1899 (2005).

Evidence that the father became drunk, walked up to his minor daughter, grabbed the daughter from behind and fondled her breasts and that despite her protests the father continued to grope the child, and that on another occasion the father inappropriately touched the daughter in the vaginal area was sufficient to show that he sexually abused the daughter. In re M.G., 187 N.C. App. 536, 653 S.E.2d 581, 2007 N.C. App. LEXIS 2573 (2007), cert. dismissed, 666 S.E.2d 120, 2008 N.C. LEXIS 706 (N.C. 2008), rev'd in part, 363 N.C. 570 , 681 S.E.2d 290, 2009 N.C. LEXIS 731 (2009), aff'd in part, rev'd in part, 2010 N.C. App. LEXIS 958 (N.C. Ct. App. June 15, 2010).

Evidence of Defendant’s Age. —

An officer’s testimony that he had contacted the defendant and had taken a statement from him which provided the officer with the observation necessary to render his opinion as to the age of the defendant was admissible in a prosecution under this section. State v. Campbell, 51 N.C. App. 418, 276 S.E.2d 726, 1981 N.C. App. LEXIS 2243 (1981).

Use of Anatomical Dolls to Illustrate Testimony. —

The courts of this State have allowed the use of anatomical dolls in sexual abuse cases to illustrate the testimony of child witnesses; the practice is wholly consistent with existing rules governing the use of photographs and other items to illustrate testimony and it conveys the information sought to be elicited while permitting the child to use a familiar item, thereby making him more comfortable. State v. Chandler, 324 N.C. 172 , 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

Even though dolls were used to illustrate the testimony of a social worker rather than the abused children, the evidence was still admissible; the demonstration illustrated the social worker’s testimony as to the manner in which the children communicated the accounts of sexual abuse and the social worker’s demonstration of what she observed each child do with the dolls also corroborated the testimony of each child. State v. Chandler, 324 N.C. 172 , 376 S.E.2d 728, 1989 N.C. LEXIS 97 (1989).

Child’s Nightmares and Mental Health Center Visits Held Relevant. —

In a prosecution for taking indecent liberties with a five-year-old girl, from the fact that the child had had severe nightmares or night terrors and that her mother had taken her to a mental health center five times for treatment it was reasonable to infer that the child might have had some form of mental or emotional illness that might have affected her testimonial capacities. This was a subject relevant to the child’s credibility as a witness. State v. Durham, 74 N.C. App. 159, 327 S.E.2d 920, 1985 N.C. App. LEXIS 3443 (1985).

Testimony about the nature of the child’s nightmares, which tended to support defendant’s contention that the child had a history of experiencing serious nightmares which may have had a sexual origin and nature, and that she accused defendant at night in a manner similar to that in which she behaved when she had her night terrors was relevant. While this evidence did not conclusively prove that the child fantasized the alleged crime, whether there was a connection between the night terrors and the child’s accusation of defendant sufficient to absolve the defendant was a question of fact for the jury. State v. Durham, 74 N.C. App. 159, 327 S.E.2d 920, 1985 N.C. App. LEXIS 3443 (1985).

Child’s Accusation of Others Held Relevant. —

Where a few hours after she accused defendant, the child also told her mother and the defendant’s girlfriend that her father had abused her in the same way, the child’s accusation of the father was relevant to the child’s credibility, and the trial judge abused his discretion and violated defendant’s constitutional rights by ruling such a subject irrelevant and by completely foreclosing any discussion of it by the girlfriend before the jury. State v. Durham, 74 N.C. App. 159, 327 S.E.2d 920, 1985 N.C. App. LEXIS 3443 (1985).

Refusal to Allow Cross-Examination of Child Prevented Effective Cross-Examination. —

Where the judge completely foreclosed any cross-examination of the child or her mother on the child’s accusation of her father a few hours after her accusation of defendant and on the content of the child’s nightmares, the child having had a history of nightmares, the defendant was deprived of his right to effective cross-examination, since these subjects, were relevant to the child’s testimonial capacities. The jury would not have been confused or inflamed by carefully monitored cross-examination of the child or her mother on these topics. State v. Durham, 74 N.C. App. 159, 327 S.E.2d 920, 1985 N.C. App. LEXIS 3443 (1985).

Evidence of Bias of Victim’s Mother Properly Excluded. —

In a prosecution of defendant for taking indecent liberties with a child, the trial court did not err in excluding testimony by defendant, his wife, and an employee of the county department of social services which was offered to show bias, interest, corruption, undue prejudice and influence on the part of the mother of the prosecuting witness, since the competency of the 10-year-old victim was determined by the trial judge after a voir dire hearing; her credibility was tested by careful cross-examination by defendant; defendant was unable to show on cross-examination that the prosecuting witness was biased or prejudiced against him or that her testimony was in any was influenced by her mother. State v. Locklear, 50 N.C. App. 165, 272 S.E.2d 597, 1980 N.C. App. LEXIS 3478 (1980).

Leading Questions. —

In prosecution for taking indecent liberties with a minor, trial judge did not abuse his discretion in permitting the district attorney to ask the 12-year-old victim two leading questions about the sexual acts committed upon her. State v. Sturgis, 74 N.C. App. 188, 328 S.E.2d 456, 1985 N.C. App. LEXIS 3439 (1985).

Hearsay Testimony Held Sufficient. —

Testimony of minor victim’s counselor, examining nurse, and examining doctor as to victim’s statements and physical condition was sufficient to withstand defendant’s motion to dismiss five counts of indecent liberties with a minor child offenses after the victim refused to testify. State v. Isenberg, 148 N.C. App. 29, 557 S.E.2d 568, 2001 N.C. App. LEXIS 1266 (2001).

Admission of hearsay evidence at trial does not violate the confrontation clause when the declarant is unavailable to testify and his statement bears adequate indicia of reliability. Thus, in a trial for taking indecent liberties with a four-year-old child, admission of evidence under an established exception to the hearsay rule did not violate defendant’s right of confrontation under N.C. Const., Art. I, § 25. State v. Jones, 89 N.C. App. 584, 367 S.E.2d 139, 1988 N.C. App. LEXIS 310 (1988), overruled in part, State v. Hinnant, 351 N.C. 277 , 523 S.E.2d 663, 2000 N.C. LEXIS 9 (2000).

Testimony by Child, Other Children, and Social Worker Held Sufficient. —

Child victim’s testimony of defendant’s conduct and testimony by previous child victims of similar conduct, along with expert testimony of clinical social worker, was sufficient to convict defendant of taking indecent liberties with a child. State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316, 2001 N.C. App. LEXIS 1185 (2001), cert. denied, 536 U.S. 967, 122 S. Ct. 2680, 153 L. Ed. 2d 851, 2002 U.S. LEXIS 5060 (2002).

Suppression of Social Workers’ Testimony Held Proper. —

In a case involving, inter alia, indecent liberties with a child, where social worker went beyond merely fulfilling her role as the victim’s social worker and began working with the sheriff’s department on the case prior to interviewing defendant, the social worker’s role changed and became essentially like that of an agent of the State; accordingly, because the social worker did not advise defendant of her Miranda rights, the trial court erred in denying defendant’s motion to suppress statements made during her interview with the social worker. State v. Morrell, 108 N.C. App. 465, 424 S.E.2d 147, 1993 N.C. App. LEXIS 98 , cert. denied, 333 N.C. 465 , 427 S.E.2d 626, 1993 N.C. LEXIS 123 (1993).

Plethysmograph. —

The evidence before the trial court by no means established the reliability of the plethysmograph; there is a substantial difference in opinion within the scientific community regarding the plethysmograph’s reliability to measure sexual deviancy. State v. Spencer, 119 N.C. App. 662, 459 S.E.2d 812, 1995 N.C. App. LEXIS 615 (1995).

Evidence That Defendant Enjoyed Consensual Anal Sex With His Wife Improperly Admitted. —

Defendant was granted a new trial on his convictions of first degree sex offense with a child, G.S. 14-27.4 , and taking indecent liberties with a child, G.S. 14-202.1 , because the trial court erred, pursuant to G.S. 8C-1 , N.C. R. Evid. 404(b), in admitting testimony by defendant’s wife that defendant enjoyed anal sex; the fact that defendant engaged in and liked consensual anal sex with his wife was not by itself sufficiently similar to engaging in anal sex with an underage victim beyond the characteristics inherent to both to be admissible under rule 404(b). State v. Dunston, 161 N.C. App. 468, 588 S.E.2d 540, 2003 N.C. App. LEXIS 2186 (2003).

Where there was no evidence that defendant had intended to molest an eight-year-old boy when he tried to grab his arm in a bathroom stall, his subsequent molestation of the child’s younger brother in same bathroom was not proof of such intent, and the charge of taking indecent liberties with the eight-year-old should have been dismissed for insufficient evidence. State v. Shue, 163 N.C. App. 58, 592 S.E.2d 233, 2004 N.C. App. LEXIS 264 , cert. denied, 358 N.C. 380 , 597 S.E.2d 773, 2004 N.C. LEXIS 362 (2004).

Victim’s Testimony of Discrete Instances Sufficient. —

Denial of defendant’s motion to dismiss after he was indicted on multiple sexual offenses with a child under G.S. 14-27.4(a)(1), G.S. 14-27.5(a)(1), and G.S. 14-202.1(a) was proper because the victim clearly described discrete instances of different types of sexual acts perpetrated upon him by defendant over a long period of time. That evidence was sufficient to withstand the motion to dismiss. State v. Davis, 214 N.C. App. 175, 715 S.E.2d 189, 2011 N.C. App. LEXIS 1640 (2011).

Evidence Sufficient to Withstand Motion to Dismiss. —

Evidence was sufficient to withstand a motion to dismiss a taking indecent liberties with a victim under G.S. 14-202.1 charge against defendant as: (1) Testimony from the victim and the victim’s mother indicated that the victim reported being touched in the victim’s genital and rectal area at a babysitter’s house by a male; (2) Mother found the victim alone with defendant on several occasions at the babysitter’s house; and (3) Corroborative testimony from the victim’s grandmother and a child therapist in which the victim said defendant was the person who had touched the victim in the victim’s genital area and hurt the victim added further weight and credibility to the victim’s testimony. State v. Carter, 210 N.C. App. 156, 707 S.E.2d 700, 2011 N.C. App. LEXIS 298 (2011).

Sufficient evidence existed to support the denial of defendant’s motion to dismiss an indecent liberties with a child charge because the minor victim, during the victim’s remote testimony discussed and demonstrated how defendant undressed and inserted a finger into the victim, a doctor who examined the victim a day after the incident opined that a penetrating injury had occurred, and the responding police officer and a police detective testified as to the statements which the victim made of defendant touching the victim’s genital area. State v. Phachoumphone, 257 N.C. App. 848, 810 S.E.2d 748, 2018 N.C. App. LEXIS 90 (2018).

Trial court did not err in denying defendant’s motion to dismiss as the evidence was sufficient to show defendant attempted to engage in indecent liberties with a minor child because defendant, who was 69 years old, wrote a letter to the 11-year-old victim, requesting sex to make him feel young again, and attempted to deliver the letter to the victim through her grandmother; an attempt to carry out defendant’s ultimate desired act of having sex with the victim was made upon delivery of the letter; and defendant acted beyond mere words by delivering the letter expressing his intent to gratify his sexual desire. State v. Southerland, 266 N.C. App. 217, 832 S.E.2d 168, 2019 N.C. App. LEXIS 577 (2019).

Evidence Held Sufficient. —

Although a nurse and doctor who examined an alleged rape victim testified that they did not find conclusive physical evidence that a sex act occurred, this medical testimony did not negate the victim’s testimony that defendant committed numerous sexual acts against her, which was corroborated by the forensic evidence; also, the State presented evidence of seminal fluid collected from the victim’s bedroom that matched defendant’s DNA. Therefore, the State presented sufficient evidence from which a jury could find that defendant committed first-degree statutory rape under G.S. 14-27.2(a)(1), first-degree sexual offense under G.S. 14-27.4(a)(1), and indecent liberties with a child under G.S. 14-202.1 . State v. Shepherd, 163 N.C. App. 646, 594 S.E.2d 439, 2004 N.C. App. LEXIS 581 (2004).

Trial court did not err in dismissing for insufficiency of the evidence the taking indecent liberties with a minor child counts against defendant where defendant argued that the child victims’ accounts contained conflicting details and, therefore, lacked credibility, as the appellate court, in a sufficiency of the evidence analysis, was required to resolve such discrepancies in favor of the State and was not permitted to weigh the evidence. State v. Lewis, 172 N.C. App. 97, 616 S.E.2d 1, 2005 N.C. App. LEXIS 1439 (2005).

Evidence that defendant was at least 16 years of age, that defendant was five years older than the victim, that defendant ran his hand up the victim’s leg and tried to get his hand into the victim’s pants but was unable to because the victim leaned up against the steering wheel, and that defendant attempted to do the aforementioned act for the purpose of arousing or gratifying defendant’s sexual desire, was sufficient to support the denial of defendant’s motion to dismiss. State v. Smith, 180 N.C. App. 86, 636 S.E.2d 267, 2006 N.C. App. LEXIS 2251 (2006).

Defendant’s action in “French kissing” the victim was a lewd or lascivious act within the meaning of G.S. 14-202.1(a)(2), and the jury could have found that defendant’s actions in telling the victim to “kiss me like you love me,” while pulling the victim’s face close to his and “French kissing” her, tended to arouse sexual desire in defendant, and so, substantial evidence of a lewd or lascivious act was presented to the jury. State v. Hammett, 182 N.C. App. 316, 642 S.E.2d 454, 2007 N.C. App. LEXIS 580 (2007).

There was sufficient evidence defendant took actions against the victim for the purposes of arousing or gratifying defendant’s sexual desire for purposes of a taking indecent liberties with a child conviction as the victim had bite marks all over her body and extensive trauma to both her vagina and rectum; moreover, defendant told police that defendant did not remember biting the victim, but acknowledged that it was possible because defendant had bitten another woman before while “making love” with her. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Evidence was sufficient to convict defendant of taking indecent liberties with a child, as 1) soliciting sexual acts from a 15-year-old girl through sexually explicit language in a letter he gave her was behavior that the common sense of society would regard as indecent and improper, and 2) the fact that his actions were for the purpose of arousing or gratifying sexual desire could be inferred from the evidence of his actions. State v. McClary, 198 N.C. App. 169, 679 S.E.2d 414, 2009 N.C. App. LEXIS 1104 (2009).

There was sufficient evidence to survive defendant’s motion to dismiss all of the charges against him, which included first-degree sex offense with a child, G.S. 14-27.4(a)(1), attempted first-degree statutory rape G.S. 14-27.2 , and two separate counts of indecent liberties with a child, G.S. 14-202.1(a)(1), because the victims both recounted specific details about the sexually abusive conduct of defendant; a police officer, doctors, and other witnesses testified that the victims both told them about defendant’s sexually abusive conduct, and the State introduced as evidence the recorded interviews of the victims that were used by the medical team at the child abuse center to make their treatment recommendations. State v. Espinoza-Valenzuela, 203 N.C. App. 485, 692 S.E.2d 145, 2010 N.C. App. LEXIS 640 (2010), cert. dismissed, 372 N.C. 708 , 831 S.E.2d 83, 2019 N.C. LEXIS 816 (2019).

Because defendant molested the victim, his granddaughter, for many years prior to having vaginal intercourse with her beginning around age 14, the jury could infer that defendant continued his additional acts of touching and other sexual acts. Therefore the evidence was sufficient to convict defendant of statutory sexual offense under G.S. 14-27.4 and indecent liberties in violation of G.S. 202.1(a), on top of the statutory rape charges under G.S. 14-27.7 A(a). State v. Khouri, 214 N.C. App. 389, 716 S.E.2d 1, 2011 N.C. App. LEXIS 1740 (2011).

Evidence Not Substantial. —

There was not substantial evidence that defendant asked a child victim to perform fellatio to support defendant’s taking indecent liberties with a child conviction under G.S. 14-202.1(a)(2) to send the case to the jury, as the victim never testified that defendant asked or attempted to place his penis in the victim’s mouth; a pediatrician testified only that: (1) the victim specifically described the sexual abuse that the victim endured, and that defendant was the individual who performed the sexual acts upon the victim; and (2) the victim described that defendant wanted the victim to perform fellatio but the victim did not want to do that. State v. Mueller, 184 N.C. App. 553, 647 S.E.2d 440, 2007 N.C. App. LEXIS 1615 , cert. denied, 362 N.C. 91 , 657 S.E.2d 24, 2007 N.C. LEXIS 1298 (2007).

Prejudicial Error. —

Defendant met his burden of proof under G.S. 15A-1443 where in light of defendant’s evidence regarding the presence of the DNA, the ex-wife’s possible coaching of the young son, and the conflict between defendant and his ex-wife, there was a reasonable possibility that in the absence of the improperly admitted composition book and cross-examination questions, the jury would have reached a different verdict than guilty of both first degree sexual offense with a child and indecent liberties with a child. State v. Davis, 726 S.E.2d 900, 2012 N.C. App. LEXIS 764 (N.C. Ct. App. 2012), op. withdrawn, 2012 N.C. App. LEXIS 824 (N.C. Ct. App. June 29, 2012), sub. op., 222 N.C. App. 562, 731 S.E.2d 236, 2012 N.C. App. LEXIS 1030 (2012).

IV.Instructions

“Purpose of Arousing or Gratifying Sexual Desire”. —

Charge to the jury that defendant could be found guilty of taking an indecent liberty with a minor if it found that he “willfully took an indecent liberty with a child for the purpose of arousing or gratifying sexual desire” did not violate defendant’s right to have a unanimous verdict, as the court merely allowed the jury to choose between two alternative purposes for which this single act might have been committed. State v. Jerrells, 98 N.C. App. 318, 390 S.E.2d 722, 1990 N.C. App. LEXIS 389 (1990).

Touching of Victim or Inducing Victim to Touch. —

Trial judge correctly instructed jury that it could find immoral, improper, or indecent liberty upon a finding that defendant either improperly touched his son or induced his son to touch him; the instruction did not permit conviction by less than a unanimous verdict. State v. Hartness, 326 N.C. 561 , 391 S.E.2d 177, 1990 N.C. LEXIS 240 (1990).

Claim of Variance Between Act Specified in Jury Instruction and Evidence Before Grand Jury. —

Defendant’s claim of a fatal variance between the specific act identified in the jury instruction as the immoral, improper, or indecent liberty taken with a victim under G.S. 14-202.1 and the evidence which defendant speculated was presented to the grand jury was rejected as under G.S. 15A-623(e), grand jury proceedings were secret, and defendant failed to point to any relevant law to support defendant’s claim that the appellate court had to find error based on evidence that might or might not have been presented in the grand jury proceeding. State v. Carter, 210 N.C. App. 156, 707 S.E.2d 700, 2011 N.C. App. LEXIS 298 (2011).

No Variance Between Indictment and Charge. —

Where the State could have charged the defendant under subdivision (a)(1) or (a)(2) of this section, the evidence at trial supporting either charge, but indicted defendant under (a)(2), the trial court’s inclusion in the jury instruction of language appearing in both subdivisions (a)(1) and (a)(2) did not constitute a fatal variance between the indictment and the charge. State v. Wilson, 87 N.C. App. 399, 361 S.E.2d 105, 1987 N.C. App. LEXIS 3203 (1987).

Trial court’s instruction to the jury providing an evidentiary basis for the charge of indecent liberties with the specific act of placing defendant’s penis between the feet of a victim did not vary from the indictment and was not reversible error as: (1) Indictment used the language of G.S. 14-202.1(a) and G.S. 14-202.1(b) to describe the elements of the alleged offense; (2) Language used by the State in the indictment to charge defendant with the offense strictly adhered to the enabling language of the statute; (3) State was not required to allege an evidentiary basis for the charged offense; and (4) Trial judge’s instruction regarding what constituted an indecent liberty was not derived from the statute, but was rather a clarification of the evidence presented for the jury’s benefit. State v. Carter, 210 N.C. App. 156, 707 S.E.2d 700, 2011 N.C. App. LEXIS 298 (2011).

Failure to Instruct on Corroborative Evidence. —

Where the evidence clearly showed defendant engaged in sexual acts with the child on more than one occasion, the State focused the child’s testimony on the incident in question and made it clear defendant was charged for committing that act, and the jury was charged solely as to this incident, there was no prejudicial error in failing to instruct on corroborative evidence. State v. Allen, 92 N.C. App. 168, 374 S.E.2d 119, 1988 N.C. App. LEXIS 1015 (1988), cert. denied, 324 N.C. 544 , 380 S.E.2d 772, 1989 N.C. LEXIS 327 (1989).

Meaning of Willfully. —

In a case in which defendant appealed her convictions for taking indecent liberties with a minor, in violation of G.S. 14-202.1 , she unsuccessfully argued that the trial court erred by not giving the jury her requested instruction regarding the meaning of willfully in G.S. 14-202.1 (a). While the trial court did not give defendant’s requested instruction, its instruction to the jury was a correct statement of the law and substantially similar to the one requested by defendant. State v. Breathette, 202 N.C. App. 697, 690 S.E.2d 1, 2010 N.C. App. LEXIS 374 (2010).

Failure to Charge on Willfulness. —

In a prosecution of defendant for taking indecent liberties with a female under the age of 16, defendant being over 16 years old and more than five years older than the female child, the jury, by finding that defendant committed the crime, necessarily found that he acted willfully, and accordingly, the court’s failure to charge on willfulness was harmless beyond a reasonable doubt. State v. Maxwell, 47 N.C. App. 658, 267 S.E.2d 582, 1980 N.C. App. LEXIS 3162 (1980).

Failure to Define “Lewd or Lascivious Act.” —

The words “lewd or lascivious act” are ordinary words which the jury is presumed to understand. State v. Stell, 39 N.C. App. 75, 249 S.E.2d 480, 1978 N.C. App. LEXIS 2345 (1978).

Since the words “lewd or lascivious act” are ordinary words which the jury is presumed to understand, there was no error in a prosecution under this section when the trial court failed to define the words in its charge to the jury. State v. Stell, 39 N.C. App. 75, 249 S.E.2d 480, 1978 N.C. App. LEXIS 2345 (1978).

Failure to Specify Which Act Was at Issue. —

Trustworthiness of defendant’s extrajudicial confession that a victim attempted to perform fellatio was corroborated with respect to a charge of indecent liberties with a child because defendant testified that his penis was exposed while he was with the victim and the victim testified that defendant exposed himself on a separate occasion. Because the jury could have found that defendant’s acts during the first or second occasion constituted an indecent liberty with a child, it was immaterial that the trial court did not give specific instructions as to which of those acts were at issue. State v. Smith, 362 N.C. 583 , 669 S.E.2d 299, 2008 N.C. LEXIS 972 (2008).

No Error In Failing To Give Instruction On Voluntary Intoxication Not Error. —

Trial court was not required to instruct the jury on voluntary intoxication because defendant, who was convicted of first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and G.S. 14-202.1 did not present evidence to support a conclusion that, at the time the acts were committed, his mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming the requisite intent; the jury heard evidence from the State showing that defendant made careful plans to be alone with the child, and in at least one instance, tricked her into coming out of her room after she had locked herself away from him. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

Mistake of Age Instruction Not Required. —

In a case in which defendant appealed her convictions for taking indecent liberties with a minor, in violation of G.S. 14-202.1 , she unsuccessfully argued that the trial court erred by not giving the jury her requested instruction that mistake of age was a valid defense to the offense of indecent liberties. Defendant argued that her knowledge of the victim’s age was an element of taking indecent liberties with a minor, making mistake of age a valid defense to the crime; however, there was no explicit mens rea requirement in G.S. 14-202.1 as to the victim’s age, and, since the defense was inapplicable, the trial court properly refused to give defendant’s proffered instruction on the defense. State v. Breathette, 202 N.C. App. 697, 690 S.E.2d 1, 2010 N.C. App. LEXIS 374 (2010).

Failure to Instruct on Acts Forming Bases for Charges. —

Because a defendant may be convicted of an indecent liberties charge even when the indictment lacks details identifying specific incidents, and because the judge is under no requirement to identify specifically the acts that constitute the charge, a trial judge did not commit plain error by not requiring the State to identify the alleged acts forming the bases for indecent liberties charges and then identifying those acts as the bases for the charges in its instructions. State v. Carter, 198 N.C. App. 297, 679 S.E.2d 457, 2009 N.C. App. LEXIS 1174 (2009).

§ 14-202.2. Indecent liberties between children.

  1. A person who is under the age of 16 years is guilty of taking indecent liberties with children if the person either:
    1. Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex who is at least three years younger than the defendant for the purpose of arousing or gratifying sexual desire; or
    2. Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex who is at least three years younger than the defendant for the purpose of arousing or gratifying sexual desire.
  2. A violation of this section is punishable as a Class 1 misdemeanor.

History. 1995, c. 494, s. 1; 1995 (Reg. Sess., 1996), c. 742, s. 12.

CASE NOTES

The element “for the purpose of arousing or gratifying sexual desire” may not be inferred solely from the act itself under this section. Without some evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting, sexual ambitions must not be assigned to a child’s actions. In re T.S., 133 N.C. App. 272, 515 S.E.2d 230, 1999 N.C. App. LEXIS 408 , writ denied, 351 N.C. 105 , 540 S.E.2d 751, 1999 N.C. LEXIS 1054 (1999).

Sexual Purpose. —

Neither the first-degree sexual offense statute nor the crime against nature statute contains a sexual purpose requirement; because the North Carolina General Assembly included this requirement in the indecent liberties statute, but omitted it from these other sex offense statutes, it was concluded that the omission was intentional. Therefore, an argument by appellant, a juvenile, that the State failed to present evidence of “sexual purpose” with respect to the first-degree sexual offense and crime against nature charges was meritless. In re J.F., 237 N.C. App. 218, 766 S.E.2d 341, 2014 N.C. App. LEXIS 1143 (2014).

Evidence Held Sufficient. —

Evidence was sufficient to support juvenile’s adjudication as a delinquent for taking indecent liberties with a child where the juvenile undertook the act for the purpose of arousing or gratifying sexual desire. In re T.C.S., 148 N.C. App. 297, 558 S.E.2d 251, 2002 N.C. App. LEXIS 12 (2002).

Defendant’s adjudication of indecent liberties between children was affirmed and the trial court did not err in denying defendant’s motion to dismiss at the end of all the evidence, where: (1) defendant, who was 14 years old, told the victim, his 8-year-old step-sister, to come into his room; (2) when the victim entered the room, defendant pulled down her pants; (3) defendant then pulled down his own pants and touched the victim’s vagina with his penis; (4) when he heard his step-mother coming, defendant ran to his closet while pulling up his pants; (4) the step-mother found the victim under the covers in defendant’s bed not wearing pants or underwear; and (5) while the step-mother was in the room defendant hid in the closet was sufficient to support the adjudication. In re D.W., 171 N.C. App. 496, 615 S.E.2d 90, 2005 N.C. App. LEXIS 1358 (2005).

Uncorroborated testimony of a child victim was sufficient to convict a juvenile defendant for committing indecent liberties between children under G.S. 14-202.2(a)(1), since the State’s evidence established that, at the time of the incident, the victim was seven and defendant was 15, and that defendant masturbated in front of the victim. Because the State established each element of the offense, the evidence was sufficient to support the conviction. In re B.E., 186 N.C. App. 656, 652 S.E.2d 344, 2007 N.C. App. LEXIS 2255 (2007).

Evidence of defendant juvenile’s age (13) and maturity as well as the age disparity between defendant and the victim, coupled with the inducement defendant employed to convince the victim to perform the act and the suggestion of defendant’s prior sexual activity some months before this event, was sufficient evidence of maturity and intent to show the required element of “for the purpose of arousing or gratifying sexual desire.” In re A.W., 209 N.C. App. 596, 706 S.E.2d 305, 2011 N.C. App. LEXIS 215 (2011).

Juvenile Disposition. —

When appellant, a juvenile, was adjudicated delinquent for first degree sexual offense and indecent liberties between children, a trial court made sufficient dispositional findings because the court found, beyond a reasonable doubt that: (1) crimes were premeditated and willful; (2) the sex crime was extremely serious; (3) the juvenile denied charges and said sex offender treatment would not benefit the juvenile; (4) the juvenile had attention deficit hyperactivity disorder symptoms, requiring a controlled environment; and (5) the juvenile’s family’s proximity to the victim made the juvenile’s release too dangerous. In re G.C., 230 N.C. App. 511, 750 S.E.2d 548, 2013 N.C. App. LEXIS 1203 (2013).

§ 14-202.3. Solicitation of child by computer or certain other electronic devices to commit an unlawful sex act.

  1. Offense. —  A person is guilty of solicitation of a child by a computer if the person is 16 years of age or older and the person knowingly, with the intent to commit an unlawful sex act, entices, advises, coerces, orders, or commands, by means of a computer or any other device capable of electronic data storage or transmission, a child who is less than 16 years of age and at least five years younger than the defendant, or a person the defendant believes to be a child who is less than 16 years of age and who the defendant believes to be at least five years younger than the defendant, to meet with the defendant or any other person for the purpose of committing an unlawful sex act. Consent is not a defense to a charge under this section.
  2. Jurisdiction. —  The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State.
  3. Punishment. —  A violation of this section is punishable as follows:
    1. A violation is a Class H felony except as provided by subdivision (2) of this subsection.
    2. If either the defendant, or any other person for whom the defendant was arranging the meeting in violation of this section, actually appears at the meeting location, then the violation is a Class G felony.

History. 1995 (Reg. Sess., 1996), c. 632, s. 1; 2005-121, s. 1; 2008-218, s. 5; 2009-336, s. 1.

Effect of Amendments.

Session Laws 2005-121, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, in subsection (a), in the first sentence, inserted “or a person the defendant believes . . . 3 years younger than the defendant” and added the second sentence; and in subsection (c), substituted “Class H felony” for “Class I felony.”

Session Laws 2008-218, s. 5, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “punishable as follows” for “a Class H felony” in subsection (c); and added subdivisions (c)(1) and (c)(2).

Session Laws 2009-336, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, in the section catchline, inserted “or certain other electronic devices”; and in subsection (a), in the first sentence, inserted “or any other device capable of electronic data storage or transmission” and substituted “five years” for “3 years” twice.

CASE NOTES

Attempted Computer Solicitation. —

By also making attempted computer solicitation a felony under amended G.S. 14-202.3 , the legislature merely increased the severity of the crime; it did not create the new crime of attempt. State v. Ellis, 188 N.C. App. 820, 657 S.E.2d 51, 2008 N.C. App. LEXIS 272 (2008).

Evidence proffered was sufficient to show that defendant committed the inchoate crime of attempted indecent liberties with children and attempted solicitation of a minor, even though the minor was an adult police officer posing as a child, because the warrant application recounted numerous sexually explicit instant message conversations between defendant and individuals who defendant believed were children, in which he asked to meet the “children” to engage in sexual conduct, and the warrant application also stated that defendant transmitted a video of himself masturbating. State v. Ellis, 188 N.C. App. 820, 657 S.E.2d 51, 2008 N.C. App. LEXIS 272 (2008).

Entrapment Instruction Required. —

Defendant had shown prejudice where an entrapment instruction would have allowed a reasonable probability of a different result by allowing the jury to determine whether the criminal intent under G.S. 14-202.3 originated in defendant’s mind or the mind of an undercover detective. State v. Keller, 374 N.C. 637 , 843 S.E.2d 58, 2020 N.C. LEXIS 510 (2020).

Entrapment Instruction Not Required. —

Entrapment instruction was not required as defendant’s lack of a criminal record and lack of a record of molestation or other similar offensive acts did not show that defendant was not predisposed to violate G.S. 14-202.3 as defendant initiated all sexually charged contact with person on Internet (girl), whom he believed to be a 14-year-old girl, and defendant followed through on a plan for a meeting for sexual contact with the girl with little urging from undercover deputies. State v. Morse, 194 N.C. App. 685, 671 S.E.2d 538, 2009 N.C. App. LEXIS 16 (2009).

Court affirmed defendant’s conviction for soliciting a person defendant believed to be a child by means of a computer for the purpose of committing an unlawful sex act; defendant’s words to the detective fell within the rather broad definitions of entice and advise, particularly when the entire online and telephone conversations were considered. State v. Fraley, 202 N.C. App. 457, 688 S.E.2d 778, 2010 N.C. App. LEXIS 278 (2010).

§ 14-202.4. Taking indecent liberties with a student.

  1. If a defendant, who is a teacher, school administrator, student teacher, school safety officer, or coach, at any age, or who is other school personnel and is at least four years older than the victim, takes indecent liberties with a victim who is a student, at any time during or after the time the defendant and victim were present together in the same school but before the victim ceases to be a student, the defendant is guilty of a Class I felony, unless the conduct is covered under some other provision of law providing for greater punishment. A person is not guilty of taking indecent liberties with a student if the person is lawfully married to the student.
  2. If a defendant, who is school personnel, other than a teacher, school administrator, student teacher, school safety officer, or coach, and who is less than four years older than the victim, takes indecent liberties with a student as provided in subsection (a) of this section, the defendant is guilty of a Class I felony.
  3. Consent is not a defense to a charge under this section.
  4. For purposes of this section, the following definitions apply:
    1. “Indecent liberties” means:
      1. Willfully taking or attempting to take any immoral, improper, or indecent liberties with a student for the purpose of arousing or gratifying sexual desire; or
      2. Willfully committing or attempting to commit any lewd or lascivious act upon or with the body or any part or member of the body of a student. For purposes of this section, the term indecent liberties does not include vaginal intercourse or a sexual act as defined by G.S. 14-27.20 .

        (1a) “Same school” means a school at which (i) the student is enrolled or is present for a school-sponsored or school-related activity and (ii) the school personnel is employed, volunteers, or is present for a school-sponsored or school-related activity.

    2. “School” means any public school, charter school, or nonpublic school under Parts 1 and 2 of Article 39 of Chapter 115C of the General Statutes.
    3. “School personnel” means any person included in the definition contained in G.S. 115C-332(a)(2), including those employed by a nonpublic, charter, or regional school, and any person who volunteers at a school or a school-sponsored activity.

      (3a) “School safety officer” means any other person who is regularly present in a school for the purpose of promoting and maintaining safe and orderly schools and includes a school resource officer.

    4. “Student” means a person enrolled in kindergarten, or in grade one through grade 12 in any school.

History. 1999-300, s. 1; 2003-98, s. 2; 2004-203, s. 19(a); 2015-44, s. 3; 2015-181, s. 16.

Effect of Amendments.

Session Laws 2004-203, s. 19(a), effective December 1, 2004, and applicable to offenses committed on or after that date, deleted the former second sentence in subsection (a) which read: “The term ‘same school’ means a school at which the student is enrolled and the defendant is employed, assigned, or volunteers.”; and added subdivision (d)(1a).

Session Laws 2015-44, s. 3, effective December 1, 2015, substituted “Class I felony” for “Class A1 misdemeanor” in subsection (b); and inserted “including those employed by a nonpublic, charter, or regional school” in subdivisions (d)(3). For applicability, see editor’s note.

Session Laws 2015-181, s. 16, effective December 1, 2015, substituted “G.S. 14-27.20” for “G.S. 14-27.1” at the end of subdivision (d)(1). For applicability, see editor’s note.

Legal Periodicals.

For survey on new penalties for criminal behavior in schools, see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

Student Defined. —

Trial court did not err in instructing the jury that a student included anyone enrolled in a school and in denying the defendant’s motion to dismiss because the State of North Carolina presented substantial evidence that the victim was a student at the time of the offenses during the summer as the victim remained in the school’s database, and, thus, remained enrolled. State v. Stephens, 234 N.C. App. 292, 758 S.E.2d 695, 2014 N.C. App. LEXIS 567 (2014).

A school resource officer, who allegedly knew that a teacher was facilitating sexual liaisons between a 14-year-old girl and an 18-year-old boy, was not required, nor was he permitted, to weigh the safety interests of the public when he decided not to report the boy’s possible statutory rape of the girl or the teacher’s sexual exploitation of the girl and boy — rather, his duty to report abuse was imposed by statute and involved no deliberation or discretionary consideration; thus, his failure to report known child abuse was outside the scope of conduct generally associated with law enforcement and the public duty doctrine did not bar the claim. Smith v. Jackson County Bd. of Educ., 168 N.C. App. 452, 608 S.E.2d 399, 2005 N.C. App. LEXIS 347 (2005).

§ 14-202.5. Ban online conduct by high-risk sex offenders that endangers children.

  1. Offense. —  It is unlawful for a high-risk sex offender to do any of the following online:
    1. To communicate with a person that the offender believes is under 16 years of age.
    2. To contact a person that the offender believes is under 16 years of age.
    3. To pose falsely as a person under 16 years of age with the intent to commit an unlawful sex act with a person the offender believes is under 16 years of age.
    4. To use a Web site to gather information about a person that the offender believes is under 16 years of age.
    5. To use a commercial social networking Web site in violation of a policy, posted in a manner reasonably likely to come to the attention of users, prohibiting convicted sex offenders from using the site.
  2. Definition of Commercial Social Networking Web Site. —  For the purposes of this section, a “commercial social networking Web site” includes any Web site, application, portal, or other means of accessing the Internet that meets all of the following requirements:
    1. Is operated by a person who derives revenue from membership fees, advertising, or other sources related to the operation of the Web site.
    2. Repealed by Session Laws 2019-245, s. 3(a), effective December 1, 2019, and applicable to offenses committed on or after that date.
    3. Allows users to create personal Web pages or profiles that contain the user’s name or nickname, photographs of the user, and other personal information.
    4. Provides users or visitors a mechanism to communicate with others, such as a message board, chat room, or instant messenger.
  3. Exclusions from Commercial Social Networking Web Site Definition. —  A commercial social networking Web site does not include a Web site that meets either of the following requirements:
    1. Repealed by Session Laws 2019-245, s. 3(a), effective December 1, 2019, and applicable to offenses committed on or after that date.
    2. Has as its primary purpose the facilitation of commercial transactions, the dissemination of news, the discussion of political or social issues, or professional networking.
    3. Is a Web site owned or operated by a local, State, or federal governmental entity. (c1) Definition of High-Risk Sex Offender. — For purposes of this section, the term “high-risk sex offender” means any person registered in accordance with Article 27A of Chapter 14 of the General Statutes that meets any of the following requirements:

      (1) Was convicted of an aggravated offense, as that term is defined in G.S. 14-208.6 , against a person under 18 years of age.

      (2) Is a recidivist, as that term is defined in G.S. 14-208.6 , and one offense is against a person under 18 years of age.

      (3) Was convicted of an offense against a minor, as that term is defined in G.S. 14-208.6.

    4. Was convicted of a sexually violent offense, as that term is defined in G.S. 14-208.6, against a person under 18 years of age.
    5. Was found by a court to be a sexually violent predator, as that term is defined in G.S. 14-208.6, based on a conviction of a sexually violent offense committed against a minor.
  4. Jurisdiction. —  The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State.
  5. Punishment. —  A violation of this section is a Class H felony.
  6. Severability. —  If any provision of this section or its application is held invalid, the invalidity does not affect other provisions or applications of this section that can be given effect without the invalid provisions or applications, and, to this end, the provisions of this section are severable.

History. 2008-218, s. 6; 2009-570, s. 4; 2019-245, s. 3(a).

Editor’s Note.

Session Laws 2019-245, s. 9(c), made the rewriting of this section by Session Laws 2019-245, s. 3(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 9(a), is a severability clause.

Effect of Amendments.

Session Laws 2009-570, s. 4, effective August 28, 2009, inserted “from” in subdivision (b)(1).

Session Laws 2019-245, s. 3(a), rewrote the section. For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

Constitutionality. —

This section is unconstitutional because it is not narrowly tailored, is vague, and fails to target the “evil” it is intended to rectify. State v. Packingham, 229 N.C. App. 293, 748 S.E.2d 146, 2013 N.C. App. LEXIS 876 (2013), rev'd, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015).

Court of appeals erred in vacating defendant’s conviction for accessing a social networking Web site as a registered sex offender on the ground that the statute was unconstitutional because the statute was constitutional in all respects. State v. Packingham, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015), rev'd, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

Statute is a regulation of conduct because the essential purpose of the statute is to limit conduct, specifically the ability of registered sex offenders to access certain carefully-defined Web sites; this limitation on conduct only incidentally burdens the ability of registered sex offenders to engage in speech after accessing those Web sites that fall within the statute’s reach. State v. Packingham, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015), rev'd, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

Statute is a content-neutral regulation because on its face, it imposes a ban on accessing certain defined commercial social networking Web sites without regard to any content or message conveyed on those sites; the limitations are based not upon speech contained in or posted on a site but instead focus on whether functions of a particular Web site are available for use by minors, and thus, the statute involves a facially content-neutral ban on the use of commercial social networking Web sites. State v. Packingham, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015), rev'd, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

Promulgating restrictions such as those contained in the statute on registered sex offenders is within the constitutional power of the General Assembly, and protecting children from sexual abuse is a substantial governmental interest; the interest reflected in the statute, which protects children from convicted sex offenders who could harvest information to facilitate contact with potential victims, is unrelated to the suppression of free speech. State v. Packingham, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015), rev'd, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

General Assembly has carefully tailored the statute in such a way as to prohibit registered sex offenders from accessing only those Web sites that allow them the opportunity to gather information about minors, thereby addressing the evil that the statute seeks to prevent, and the statute allows alternatives through specific exceptions for Web sites that provide discrete e-mail, chat room, photo-sharing, and instant messaging services; thus, the statute is sufficiently narrowly drawn. State v. Packingham, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015), rev'd, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

Statute was not an unreasonable regulation and was constitutional as applied to defendant because the incidental burden imposed upon defendant, who was barred from Facebook.com but not from many other sites, was not greater than necessary to further the governmental interest of protecting children from registered sex offenders. State v. Packingham, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015), rev'd, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

Statute is drafted carefully to limit its reach by establishing four specific criteria that must be met before access to a commercial social networking Web site is prohibited to a registered sex offender, and these factors ensure that registered sex offenders are prohibited from accessing only those Web sites where they could actually gather information about minors to target, and outside these limits, registered sex offenders are free to use the Internet. State v. Packingham, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015), rev'd, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

U.S. Supreme Court reversed the Supreme Court of North Carolina’s judgment upholding G.S. 14-202.5 , which made it a felony for registered sex offenders to access a commercial social networking website where a sex offender knew the site allowed minor children to become members or to create or maintain a personal web page, because G.S. 14-202.5 impermissibly restricted lawful speech in violation of the First Amendment’s Free Speech Clause, which was applicable to North Carolina under the Due Process Clause of the Fourteenth Amendment. Packingham v. North Carolina, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

Accessing Facebook. —

Defendant’s conduct defeated his vagueness claim because Facebook.com, the site at issue, fell under the statute’s definition of commercial social networking Web site, and defendant’s logging into his Facebook account and posting a message on his page was unquestionably “accessing” Facebook.com. State v. Packingham, 368 N.C. 380 , 777 S.E.2d 738, 2015 N.C. LEXIS 1061 (2015), rev'd, 137 S. Ct. 1730, 198 L. Ed. 2d 273, 2017 U.S. LEXIS 3871 (2017).

§ 14-202.5A. Liability of commercial social networking sites.

  1. A commercial social networking site, as defined in G.S. 14-202.5 , that complies with G.S. 14-208.15 A or makes other reasonable efforts to prevent a high-risk sex offender, as defined in G.S. 14-202.5 , from using its Web site to endanger children shall not be held civilly liable for damages arising out of the sex offender’s communications on the social networking site’s system or network.
  2. Repealed by Session Laws 2019-245, s. 3(b), effective December 1, 2019, and applicable to offenses committed on or after that date.

History. 2008-218, s. 7; 2009-272, s. 1; 2019-245, s. 3(b).

Editor’s Note.

Session Laws 2019-245, s. 9(c), made the rewriting of this section by Session Laws 2019-245, s. 3(b), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 9(a), is a severability clause.

Effect of Amendments.

Session Laws 2009-272, s. 1, effective May 1, 2009, rewrote subsection (a).

Session Laws 2019-245, s. 3(b), rewrote the section. For effective date and applicability, see editor’s note.

§ 14-202.6. Ban on name changes by sex offenders.

It is unlawful for a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes to obtain a change of name under Chapter 101 of the General Statutes.

History. 2008-218, s. 8.

§§ 14-202.7 through 14-202.9.

Reserved for future codification purposes.

Article 26A. Adult Establishments.

§ 14-202.10. Definitions.

As used in this Article:

  1. “Adult bookstore” means a bookstore:
    1. Which receives a majority of its gross income during any calendar month from the sale or rental of publications (including books, magazines, other periodicals, videotapes, compact discs, other photographic, electronic, magnetic, digital, or other imaging medium) which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this section; or
    2. Having as a preponderance (either in terms of the weight and importance of the material or in terms of greater volume of materials) of its publications (including books, magazines, other periodicals, videotapes, compact discs, other photographic, electronic, magnetic, digital, or other imaging medium) which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this section.
  2. “Adult establishment” means an adult bookstore, adult motion picture theatre, adult mini motion picture theatre, or adult live entertainment business as defined in this section.
  3. “Adult live entertainment” means any performance of or involving the actual presence of real people which exhibits specified sexual activities or specified anatomical areas, as defined in this section.
  4. “Adult live entertainment business” means any establishment or business wherein adult live entertainment is shown for observation by patrons.
  5. “Adult motion picture theatre” means an enclosed building or premises used for presenting motion pictures, a preponderance of which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this section, for observation by patrons therein. “Adult motion picture theatre” does not include any adult mini motion picture theatre as defined in this section.
  6. “Adult mini motion picture theatre” means an enclosed building with viewing booths designed to hold patrons which is used for presenting motion pictures, a preponderance of which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas as defined in this section, for observation by patrons therein.
  7. , (8) Repealed by Session Laws 2017-151, s. 2(b), effective October 1, 2017.

    (9) “Sexually oriented devices” means without limitation any artificial or simulated specified anatomical area or other device or paraphernalia that is designed principally for specified sexual activities but shall not mean any contraceptive device.

    (10) “Specified anatomical areas” means:

    1. Less than completely and opaquely covered: (i) human genitals, pubic region, (ii) buttock, or (iii) female breast below a point immediately above the top of the areola; or
    2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

      (11) “Specified sexual activities” means:

      a. Human genitals in a state of sexual stimulation or arousal;

      b. Acts of human masturbation, sexual intercourse or sodomy; or

    3. Fondling or other erotic touchings of human genitals, pubic regions, buttocks or female breasts.

History. 1977, c. 987, s. 1; 1985, c. 731, s. 1; 1998-46, s. 4; 2017-151, s. 2(a), (b).

Editor’s Note.

Session Laws 2017-151, s. 6, made the amendment of subdivision (2) and repeal of subdivisions (7) and (8) of this section by Session Laws 2017-151, s. 2(a) and (b), which inserted “or” and deleted “business, or massage” following “adult live entertainment”; and deleted former subdivisions (7) and (8), which defined “Massage” and “Massage business,” effective October 1, 2017.

Effect of Amendments.

Session Laws 2017-151, s. 2(a) and (b), in subdivision (2), inserted “or” and deleted “business, or massage” following “adult live entertainment”; and deleted former subdivisions (7) and (8), which defined “Massage” and “Massage business”.

Legal Periodicals.

For article, “Regulating Obscenity Through the Power to Define and Abate Nuisances,” see 14 Wake Forest L. Rev. 1 (1978).

For article, “Pornography and the First Amendment,” see 1986 Duke L.J. 589.

For article, “Regulation of Pornography — The North Carolina Approach,” see 21 Wake Forest L. Rev. 263 (1986).

CASE NOTES

Purpose of Article. —

This Article is aimed at prohibiting a “supermarket” marketing technique that offers for sale or exhibition at one business location a variety of sexual wares in addition to printed materials. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

The essential regulation implemented by this Article is of location. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

Constitutionality — No Equal Protection Violation. —

This Article does not violate equal protection since the unequal treatment of commercial establishments involved in this Article is based most essentially on the different effects they are considered to have on their surroundings. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

Same — U.S. Const., Amend. I Not Violated. —

Under this Article the incidental restriction on interests protected by U.S. Const., Amend. I is no greater than is essential to furtherance of the state’s interest. The means chosen by North Carolina in its effort to eliminate the undesired secondary effects of adult establishments is one of the least burdensome means the state could have chosen. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

On its face this Article is a permissible regulation of the external costs of adult establishments that is unrelated to the overall suppression of any protected materials offered by them for public consumption. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

This Article is merely a regulation of the place and manner of expression, without proscription of that expression, of the type not forbidden by U.S. Const., Amend. I. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

While U.S. Const., Amend. I sets limits on the economic burdens that can be imposed upon the dissemination of protected materials, those limits are not exceeded by the relocation burden involved in this Article. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

This Article furthers an important or substantial interest. North Carolina has a substantial interest in maintaining a stable, healthful environment in its cities. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

Same — Right of Privacy Not Violated. —

This Article does not violate the constitutionally protected right of privacy. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

Constitutionality of City Ordinance. —

City zoning ordinance, which did not ban adult establishment altogether but merely regulated their location, was content-neutral, designed to serve a substantial government interest, and did not unreasonably limit alternative avenues of communication. Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp. 372, 1997 U.S. Dist. LEXIS 20748 (W.D.N.C. 1997), aff'd, 162 F.3d 1155, 1998 U.S. App. LEXIS 34403 (4th Cir. 1998).

Standing to Challenge This Article. —

Adult establishments which clearly came within the terms of this Article lacked standing to challenge this Article for vagueness. But even were they granted standing to raise this issue, the statute would withstand a vagueness challenge. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

This Article is within the concept of the public welfare that defines the limits of the police power. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

Whether or not this Article is a true zoning law, it is a legitimate exercise of the police power, under which the State may limit the use of private property for the public welfare. Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 1979 U.S. App. LEXIS 9988 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124, 1980 U.S. LEXIS 2099 (1980).

Relationship with G.S. 19-1 . —

This section and G.S. 19-1 should be construed in pari materia. South Blvd. Video & News, Inc. v. Charlotte Zoning Bd. of Adjustment, 129 N.C. App. 282, 498 S.E.2d 623, 1998 N.C. App. LEXIS 513 (1998).

Preponderance. —

The term “preponderance” as used in G.S. 14-202.10 (1) and (6) denotes a superiority in weight which is a qualitative measurement, and since the amendment of G.S. 14-202.10 merely codified the Court of Appeals’ explanations of what the word “preponderance” had meant, the amendment was not a substantive change in the law. Durham Video & News, Inc. v. Durham Bd. of Adjustment, 144 N.C. App. 236, 550 S.E.2d 212, 2001 N.C. App. LEXIS 426 (2001).

Construction of Term “Publications.” —

In interpreting this section with G.S. 19-1.1 it is almost impossible to construe the term “publications” as not including videotapes. South Blvd. Video & News, Inc. v. Charlotte Zoning Bd. of Adjustment, 129 N.C. App. 282, 498 S.E.2d 623, 1998 N.C. App. LEXIS 513 (1998).

Emphasis on Anatomy or Sex. —

In the context of zoning enforcement, it is reasonable to rely upon an analysis of the pictures and titles on the covers of magazines, videos, and other publications to decide whether such works emphasize the anatomical parts and sexual activities specified in G.S. 14-202.10(10) and (11). Durham Video & News, Inc. v. Durham Bd. of Adjustment, 144 N.C. App. 236, 550 S.E.2d 212, 2001 N.C. App. LEXIS 426 (2001).

Adult Bookstore. —

Plaintiffs lacked standing to challenge a city ordinance regulating sexually oriented businesses for vagueness where the ordinance clearly applied to the plaintiffs; court-ordered expedited discovery demonstrated that most if not all of the novelty items and devices stocked or displayed for sale were clearly sexually oriented, and plaintiffs’ proposed business fell within the definition of “adult bookstore.” Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp. 372, 1997 U.S. Dist. LEXIS 20748 (W.D.N.C. 1997), aff'd, 162 F.3d 1155, 1998 U.S. App. LEXIS 34403 (4th Cir. 1998).

Permissible Inference from Defendant’s Refusal to Testify. —

It was proper for the Town Board of Adjustment’s to infer a violation of G.S. 14-202.11(a) from defendant-video store owner’s refusal to testify and thus to conclude that his video store qualified as an “adult bookstore” under this section. Davis v. Town of Stallings Bd. of Adjustment, 141 N.C. App. 489, 541 S.E.2d 183, 2000 N.C. App. LEXIS 1437 (2000).

§ 14-202.11. Restrictions as to adult establishments.

  1. No person shall permit any building, premises, structure, or other facility that contains any adult establishment to contain any other kind of adult establishment. No person shall permit any building, premises, structure, or other facility in which sexually oriented devices are sold, distributed, exhibited, or contained to contain any adult establishment.

    (a1) No person shall permit the practice of massage and bodywork therapy, as defined in Article 36 of Chapter 90 of the General Statutes, in an adult establishment.

  2. No person shall permit any viewing booth in an adult mini motion picture theatre to be occupied by more than one person at any time.
  3. Nothing in this section shall be deemed to preempt local government regulation of the location or operation of adult establishments or other sexually oriented businesses to the extent consistent with the constitutional protection afforded free speech.

History. 1977, c. 987, s. 1; 1985, c. 731, s. 2; 1998-46, s. 5; 2017-151, s. 2(c).

Effect of Amendments.

Session Laws 2017-151, s. 2(c), effective October 1, 2017, added subsection (a1).

Legal Periodicals.

For survey of 1977 constitutional law, see 56 N.C.L. Rev. 943 (1978).

For survey of 1977 law on property, see 56 N.C.L. Rev. 1111 (1978).

CASE NOTES

Preemption of County Ordinance. —

Provision of a county ordinance that prohibited the location of such businesses in any building located with 1000 feet of another building containing such a business was preempted by this section. Onslow County v. Moore, 129 N.C. App. 376, 499 S.E.2d 780, 1998 N.C. App. LEXIS 554 (1998).

Permissible Inference from Defendant’s Refusal to Testify. —

It was proper for the Town Board of Adjustment’s to infer a violation of this section from defendant-video store owner’s refusal to testify and thus to conclude that his video store qualified as an “adult bookstore” under G.S. 14-202.10(1). Davis v. Town of Stallings Bd. of Adjustment, 141 N.C. App. 489, 541 S.E.2d 183, 2000 N.C. App. LEXIS 1437 (2000).

§ 14-202.12. Violations; penalties.

Any person who violates G.S. 14-202.11 shall be guilty of a Class 3 misdemeanor. Any person who has been previously convicted of a violation of G.S. 14-202.11 , upon conviction for a second or subsequent violation of G.S. 14-202.11, shall be guilty of a Class 2 misdemeanor.

As used herein, “person” shall include:

  1. The agent in charge of the building, premises, structure or facility; or
  2. The owner of the building, premises, structure or facility when such owner knew or reasonably should have known the nature of the business located therein, and such owner refused to cooperate with the public officials in reasonable measures designed to terminate the proscribed use; provided, however, that if there is an agent in charge, and if the owner did not have actual knowledge, the owner shall not be prosecuted; or
  3. The owner of the business; or
  4. The manager of the business.

History. 1977, c. 987, s. 1; 1985, c. 731, s. 3; 1993, c. 539, s. 132; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-202.13. Human trafficking public awareness sign.

An adult establishment, as defined in G.S. 14-202.10 , shall prominently display on the premises in a place that is clearly conspicuous and visible to employees and the public a public awareness sign created and provided by the North Carolina Human Trafficking Commission that contains the National Human Trafficking Resource hotline information.

History. 2017-57, s. 17.4(a); 2017-197, s. 5.8.

Editor’s Note.

Session Laws 2017-57, s. 17.4(g), as amended by Session Laws 2017-197, s. 5.8, makes this section effective January 1, 2018.

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.6, is a severability clause.

Article 27. Prostitution.

§ 14-203. Definition of terms.

The following definitions apply in this Article:

  1. Advance prostitution. — The term includes all of the following:
    1. Soliciting for a prostitute by performing any of the following acts when acting as other than a prostitute or a patron of a prostitute:
      1. Soliciting another for the purpose of prostitution.
      2. Arranging or offering to arrange a meeting of persons for the purpose of prostitution.
      3. Directing another to a place knowing the direction is for the purpose of prostitution.
      4. Using the Internet, including any social media Web site, to solicit another for the purpose of prostitution.
    2. Keeping a place of prostitution by controlling or exercising control over the use of any place that could offer seclusion or shelter for the practice of prostitution and performing any of the following acts when acting as other than a prostitute or a patron of a prostitute:
      1. Knowingly granting or permitting the use of the place for the purpose of prostitution.
      2. Granting or permitting the use of the place under circumstances from which the person should reasonably know that the place is used or is to be used for purposes of prostitution.
      3. Permitting the continued use of the place after becoming aware of facts or circumstances from which the person should know that the place is being used for the purpose of prostitution.
  2. Minor. — Any person who is less than 18 years of age.
  3. Profit from prostitution. — When acting as other than a prostitute, to receive anything of value for personally rendered prostitution services or to receive anything of value from a prostitute, if the thing received is not for lawful consideration and the person knows it was earned in whole or in part from the practice of prostitution.
  4. Prostitute. — A person who engages in prostitution.
  5. Prostitution. — The performance of, offer of, or agreement to perform vaginal intercourse, any sexual act as defined in G.S. 14-27.20 , or any sexual contact as defined in G.S. 14-27.20 , for the purpose of sexual arousal or gratification for any money or other consideration.

History. 1919, c. 215, s. 2; C.S., s. 4357; 2013-368, s. 5; 2015-181, s. 17.

Effect of Amendments.

Session Laws 2013-368, s. 5, effective October 1, 2013, rewrote this section. For applicability, see Editor’s note.

Session Laws 2015-181, s. 17, effective December 1, 2015, substituted “G.S. 14-27.20” for “G.S. 14-27.1” two times in subdivision (5). For applicability, see editor’s note.

Legal Periodicals.

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1088 (1981).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For comment, “Prostitution and Obscenity: A Comment Upon the Attorney General’s Report on Pornography,” see 1987 Duke L.J. 123.

For article, “Decriminalized Prostitution: Impunity for Violence and Exploitation,” see 52 Wake Forest L. Rev. 533 (2017).

CASE NOTES

This section unequivocally defines prostitution as an act of sexual intercourse, and nothing else. Sexual intercourse is defined as, “the actual contact of the sexual organs of a man and a woman, and an actual penetration into the body of the latter.” State v. Richardson, 307 N.C. 692 , 300 S.E.2d 379, 1983 N.C. LEXIS 1118 (1983).

If the legislature wishes to include within G.S. 14-204 other sexual acts, such as cunnilingus, fellatio, masturbation, buggery or sodomy, it should do so with specificity since the court is bound to construe a criminal statute strictly in favor of the defendant. State v. Richardson, 307 N.C. 692 , 300 S.E.2d 379, 1983 N.C. LEXIS 1118 (1983).

Employment as Consideration for Sex. —

The exchange of sexual intercourse for the valuable economic benefit of a job fits within North Carolina’s criminal prohibition. Harrison v. Edison Bros. Apparel Stores, 924 F.2d 530, 1991 U.S. App. LEXIS 1069 (4th Cir. 1991).

North Carolina, sharing the nearly unanimous view of American jurisdictions, prohibits prostitution — “including the offering or receiving of the body for sexual intercourse for hire.” Harrison v. Edison Bros. Apparel Stores, 924 F.2d 530, 1991 U.S. App. LEXIS 1069 (4th Cir. 1991).

The sexual act of masturbation for hire is not included in the definition of prostitution, as found in this section and prohibited by G.S. 14-204 . State v. Richardson, 307 N.C. 692 , 300 S.E.2d 379, 1983 N.C. LEXIS 1118 (1983).

§ 14-204. Prostitution.

  1. Offense. —  Any person who willfully engages in prostitution is guilty of a Class 1 misdemeanor.
  2. First Offender; Conditional Discharge. —
    1. Whenever any person who has not previously been convicted of or placed on probation for a violation of this section pleads guilty to or is found guilty of a violation of this section, the court, without entering a judgment and with the consent of such person, shall place the person on probation pursuant to this subsection.
    2. When a person is placed on probation, the court shall enter an order specifying a period of probation of 12 months and shall defer further proceedings in the case until the conclusion of the period of probation or until the filing of a petition alleging violation of a term or condition of probation.
    3. The conditions of probation shall be that the person (i) not violate any criminal statute of any jurisdiction, (ii) refrain from possessing a firearm or other dangerous weapon, (iii) submit to periodic drug testing at a time and in a manner as ordered by the court, but no less than three times during the period of the probation, with the cost of the testing to be paid by the probationer, (iv) obtain a vocational assessment administered by a program approved by the court, and (v) attend no fewer than 10 counseling sessions administered by a program approved by the court.
    4. The court may, in addition to other conditions, require that the person do any of the following:
      1. Make a report to and appear in person before or participate with the court or such courts, person, or social service agency as directed by the court in the order of probation.
      2. Pay a fine and costs.
      3. Attend or reside in a facility established for the instruction or residence of defendants on probation.
      4. Support the person’s dependents.
      5. Refrain from having in the person’s body the presence of any illicit drug prohibited by the North Carolina Controlled Substances Act, unless prescribed by a physician, and submit samples of the person’s blood or urine or both for tests to determine the presence of any illicit drug.
    5. Upon violation of a term or condition of probation, the court may enter a judgment on its original finding of guilt and proceed as otherwise provided.
    6. Upon fulfillment of the terms and conditions of probation, the court shall discharge the person and dismiss the proceedings against the person. Upon the discharge of the person and dismissal of the proceedings against the person under this subsection, the person is eligible to apply for expunction of records pursuant to G.S. 15A-145.6 .
    7. Discharge and dismissal under this subsection shall not be deemed a conviction for purposes of structured sentencing or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.
    8. There may be only one discharge and dismissal under this section.
  3. Immunity From Prosecution for Minors. —  Notwithstanding any other provision of this section, if it is determined, after a reasonable detention for investigative purposes, that a person suspected of or charged with a violation of this section is a minor, that person shall be immune from prosecution under this section and instead shall be taken into temporary protective custody as an undisciplined juvenile pursuant to Article 19 of Chapter 7B of the General Statutes. Pursuant to the provisions of G.S. 7B-301 , a law enforcement officer who takes a minor into custody under this section shall immediately report an allegation of a violation of G.S. 14-43.11 and G.S. 14-43.13 to the director of the department of social services in the county where the minor resides or is found, as appropriate, which shall commence an initial investigation into child abuse or child neglect within 24 hours pursuant to G.S. 7B-301 and G.S. 7B-302 .

History. 1919, c. 215, s. 1; C.S., s. 4358; 2013-368, s. 5.

Cross References.

As to declaring houses of prostitution to be nuisances, see G.S. 19-1 .

Effect of Amendments.

Session Laws 2013-368, s. 5, effective October 1, 2013, rewrote the section. For applicability, see Editor’s note.

Legal Periodicals.

For article discussing model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

CASE NOTES

Purpose. —

The enterprise sought to be proscribed by this section, the offering of the body for hire, has been fragmented into multiple substantive offenses. This fragmentation serves the laudable purpose of not only punishing those who, at any state, engage in the promotion of the enterprise, but is an obvious prosecutorial aid to those whose responsibility it is to suppress the vice. State v. Demott, 26 N.C. App. 14, 214 S.E.2d 781, 1975 N.C. App. LEXIS 1958 (1975).

Each Step a Separate Crime. —

The legislature, by making each step taken in furtherance of the vice of offering the body for sexual hire a separate crime, has made it possible to obtain convictions where, given the nature of the activity, they would otherwise be most difficult to obtain. State v. Demott, 26 N.C. App. 14, 214 S.E.2d 781, 1975 N.C. App. LEXIS 1958 (1975).

The violation of subdivision (4) is complete when defendant directs and invites agent to her apartment for prostitution. State v. Demott, 26 N.C. App. 14, 214 S.E.2d 781, 1975 N.C. App. LEXIS 1958 (1975).

Same — Transporting. —

Where defendants, taxi drivers, were apprehended in a clearing in the woods, each behind the wheel of his taxi with motor running, and carrying soldiers, the evidence of the character of the scene and the other circumstantial evidence was sufficient to support the inference that defendants knew their destination and brought their passengers to the place for the purpose of engaging in prostitution. State v. Willis, 220 N.C. 712 , 18 S.E.2d 118, 1942 N.C. LEXIS 538 (1942).

Meaning of “Solicit”. —

Nothing appears with regard to subdivision (5) of this section, from the context or otherwise, to indicate an intent to give the word “solicit” anything other than its ordinary meaning. State v. Haggard, 59 N.C. App. 727, 297 S.E.2d 635, 1982 N.C. App. LEXIS 3190 (1982).

The violation of subdivision (6) is complete when defendant enters her apartment with a person for the stated purpose. State v. Demott, 26 N.C. App. 14, 214 S.E.2d 781, 1975 N.C. App. LEXIS 1958 (1975).

Anyone who has violated subdivision (7) has most likely, in the process of doing so, violated one or more of the other subdivisions of this section. State v. Demott, 26 N.C. App. 14, 214 S.E.2d 781, 1975 N.C. App. LEXIS 1958 (1975).

Aiding and Abetting. —

It is to be noted that subdivision (7) does not merely say “to aid or abet prostitution or assignation,” but there are added the descriptive words “by any means whatsoever,” thereby covering a multitude of acts. Thus, it is manifest that the legislature intended that these supplemental words should be given a meaning, and catch all other acts of aiding and abetting prostitution or assignation. Therefore in order to determine whether any offense be committed, it is essential that for the words of the statute “by any means whatsoever” to be given force and effect, there must be stated in the warrant the acts and circumstances of the particular charge, so that the court can see as a matter of law that a crime is charged. State v. Cox, 244 N.C. 57 , 92 S.E.2d 413, 1956 N.C. LEXIS 639 (1956).

A warrant which charged that defendant did “aid and abet in prostitution and assignation” was defective since it failed to state wherein the defendant aided and abetted, and defendant’s motion in arrest of judgment should have been granted. State v. Cox, 244 N.C. 57 , 92 S.E.2d 413, 1956 N.C. LEXIS 639 (1956).

This section punishes all who aid and abet prostitution by the means set out in the statute or by “any means whatsoever” to the same extent that it punishes those who offer their bodies for that purpose. State v. Demott, 26 N.C. App. 14, 214 S.E.2d 781, 1975 N.C. App. LEXIS 1958 (1975).

The sexual act of masturbation for hire is not included in the definition of prostitution, as found in G.S. 14-203 and prohibited by this section. State v. Richardson, 307 N.C. 692 , 300 S.E.2d 379, 1983 N.C. LEXIS 1118 (1983).

If the legislature wishes to include within this section other sexual acts, such as cunnilingus, fellatio, masturbation, buggery or sodomy, it should do so with specificity since the court is bound to construe a criminal statute strictly in favor of the defendant. State v. Richardson, 307 N.C. 692 , 300 S.E.2d 379, 1983 N.C. LEXIS 1118 (1983).

Allegations in warrants charging violations of subdivisions (2), (4) and (6) can be so cast that neither offense is made an essential element of any other. State v. Demott, 26 N.C. App. 14, 214 S.E.2d 781, 1975 N.C. App. LEXIS 1958 (1975).

Competency of Evidence. —

Evidence of the reputation of the upstairs of a building owned by defendant, and of the persons frequenting it, is competent in a prosecution under this section. State v. Waggoner, 207 N.C. 306 , 176 S.E. 566, 1934 N.C. LEXIS 451 (1934).

Sufficiency of Evidence. —

In a criminal prosecution for permitting property to be used for prostitution where the State’s evidence tended to show that defendant owned the property so used, which was across the road from his residence, that defendant’s wife was one of the operators of the place of ill fame and that its general reputation was bad, motion for judgment as of nonsuit was held properly denied. State v. Herndon, 223 N.C. 208 , 25 S.E.2d 611, 1943 N.C. LEXIS 241 , cert. denied, 320 U.S. 759, 64 S. Ct. 67, 88 L. Ed. 452, 1943 U.S. LEXIS 387 (1943).

Legislature Empowered to Punish Prostitute and Not Customer. —

It is well within the power of the Legislature to punish the prostitute and provider of sexual services and not the customer. It is the organized and repeated provision of such services, not their use by unorganized and casual individuals, that constitutes the most readily eradicable social evil. State v. Evans, 73 N.C. App. 214, 326 S.E.2d 303, 1985 N.C. App. LEXIS 3270 (1985).

§§ 14-204.1, 14-205. [Repealed]

Repealed by Session Laws 2013-368, s. 4, effective October 1, 2013, and applicable to offenses committed on or after that date.

History. 14-204.1; 1979, c. 873, s. 2; 1993, c. 539, s. 133; 1994, Ex. Sess., c. 24, s. 14(c); repealed by 2013-368, s. 4, effective October 1, 2013. 14-205; 1919, c. 215, s. 6; C.S., s. 4359; repealed by 2013-368, s. 4, effective October 1, 2013.

Editor’s Note.

Former G.S. 14-190.204.1 pertained to loitering for the purpose of engaging in prostitution offense. Former G.S. 14-190.205 pertained to prosecution; in what courts.

§ 14-205.1. Solicitation of prostitution.

  1. Except as otherwise provided in this section, any person who solicits another for the purpose of prostitution is guilty of a Class 1 misdemeanor for a first offense and a Class H felony for a second or subsequent offense. Any person 18 years of age or older who willfully solicits a minor for the purpose of prostitution is guilty of a Class G felony. Any person who willfully solicits a person who has a severe or profound mental disability for the purpose of prostitution is guilty of a Class E felony. Punishment under this section may include participation in a program devised for the education and prevention of sexual exploitation (i.e. “John School”), where available. A person who violates this subsection is not eligible for a disposition of prayer for judgment continued under any circumstances.
  2. Immunity From Prosecution for Minors. —  Notwithstanding any other provision of this section, if it is determined, after a reasonable detention for investigative purposes, that a person suspected of or charged with a violation of this section is a minor who is soliciting as a prostitute, that person shall be immune from prosecution under this section and instead shall be taken into temporary protective custody as an undisciplined juvenile pursuant to Article 19 of Chapter 7B of the General Statutes. Pursuant to G.S. 7B-301 , a law enforcement officer who takes a minor into custody under this section shall immediately report an allegation of a violation of G.S. 14-43.11 and G.S. 14-43.13 to the director of the department of social services in the county where the minor resides or is found, as appropriate, which shall commence an initial investigation into child abuse or child neglect within 24 hours pursuant to G.S. 7B-301 and G.S. 7B-302 .

History. 2013-368, s. 5; 2015-183, s. 1; 2018-47, s. 4(e).

Editor’s Note.

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 4(e), effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2015-183, s. 1, effective August 5, 2015, designated the existing language as subsection (a); and added subsection (b). For applicability, see editor’s note.

Session Laws 2018-47, s. 4(e), in subsection (a), substituted “has a severe or profound mental disability” for “is severely or profoundly mentally disabled,” and “is not” for “shall not be”; and deleted “the provisions of” preceding “G.S. 7B-301” in subsection (b). For effective date and applicability, see editor’s note.

§ 14-205.2. Patronizing a prostitute.

  1. Any person who willfully performs any of the following acts with a person not his or her spouse commits the offense of patronizing a prostitute:
    1. Engages in vaginal intercourse, any sexual act as defined in G.S. 14-27.20 , or any sexual contact as defined in G.S. 14-27.20 , for the purpose of sexual arousal or gratification with a prostitute.
    2. Enters or remains in a place of prostitution with intent to engage in vaginal intercourse, any sexual act as defined in G.S. 14-27.20, or any sexual contact as defined in G.S. 14-27.20, for the purpose of sexual arousal or gratification.
  2. Except as provided in subsections (c) and (d) of this section, a first violation of this section is a Class A1 misdemeanor. Unless a higher penalty applies, a second or subsequent violation of this section is a Class G felony.
  3. A violation of this section is a Class F felony if the defendant is 18 years of age or older and the prostitute is a minor.
  4. A violation of this section is a Class D felony if the prostitute has a severe or profound mental disability.

History. 2013-368, s. 5; 2015-181, s. 18; 2018-47, s. 4(f).

Editor’s Note.

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 4(f), effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2015-181, s. 18, effective December 1, 2015, substituted “G.S. 14-27.20” for “G.S. 14-27.1” four times in subdivisions (a)(1) and (a)(2). For applicability, see editor’s note.

Session Laws 2018-47, s. 4(f), substituted “has a severe or profound mental disability” for “is a severely or profoundly mentally disabled person” in subsection (d). For effective date and applicability, see editor’s note.

§ 14-205.3. Promoting prostitution.

  1. Any person who willfully performs any of the following acts commits promoting prostitution:
    1. Advances prostitution as defined in G.S. 14-203 .
    2. Profits from prostitution by doing any of the following:
      1. Compelling a person to become a prostitute.
      2. Receiving a portion of the earnings from a prostitute for arranging or offering to arrange a situation in which the person may practice prostitution.
      3. Any means other than those described in sub-subdivisions a. and b. of this subdivision, including from a person who patronizes a prostitute. This sub-subdivision does not apply to a person engaged in prostitution who is a minor. A person cannot be convicted of promoting prostitution under this sub-subdivision if the practice of prostitution underlying the offense consists exclusively of the accused’s own acts of prostitution under G.S. 14-204 .
  2. Any person who willfully performs any of the following acts commits the offense of promoting prostitution of a minor or person who has a mental disability:
    1. Advances prostitution as defined in G.S. 14-203 , where a minor or person who has a severe or profound mental disability engaged in prostitution, or any person engaged in prostitution in the place of prostitution is a minor or has a severe or profound mental disability at the time of the offense.
    2. Profits from prostitution by any means where the prostitute is a minor or has a severe or profound mental disability at the time of the offense.
    3. Confines a minor or a person who has a severe or profound mental disability against the person’s will by the infliction or threat of imminent infliction of great bodily harm, permanent disability, or disfigurement or by administering to the minor or person who has a severe or profound mental disability, without the person’s consent or by threat or deception and for other than medical purposes, any alcoholic intoxicant or a drug as defined in Article 5 of Chapter 90 of the General Statutes (North Carolina Controlled Substances Act) and does any of the following:
      1. Compels the minor or person who has a severe or profound mental disability to engage in prostitution.
      2. Arranges a situation in which the minor or person who has a severe or profound mental disability may practice prostitution.
      3. Profits from prostitution by the minor or person who has a severe or profound mental disability.For purposes of this subsection, administering drugs or an alcoholic intoxicant to a minor or a person who has a severe or profound mental disability, as described in subdivision (3) of this subsection, shall be deemed to be without consent if the administering is done without the consent of the parents or legal guardian or if the administering is performed or permitted by the parents or legal guardian for other than medical purposes. Mistake of age is not a defense to a prosecution under this subsection.
  3. Unless a higher penalty applies, a violation of subsection (a) of this section is a Class F felony. A violation of subsection (a) of this section by a person with a prior conviction for a violation of this section or a violation of G.S. 14-204 (prostitution), G.S. 14-204.1 (solicitation of prostitution), or G.S. 14-204.2 (patronizing a prostitute) is a Class E felony.
  4. Unless a higher penalty applies, a violation of subdivision (1) or (2) of subsection (b) of this section is a Class D felony. A violation of subdivision (3) of subsection (b) of this section is a Class C felony. Any violation of subsection (b) of this section by a person with a prior conviction for a violation of this section or a violation of G.S. 14-204 (prostitution), G.S. 14-204.1 (solicitation of prostitution), G.S. 14-204.2 (patronizing a prostitute) is a Class C felony.

History. 2013-368, s. 5; 2018-47, s. 4(g).

Editor’s Note.

Section 14-204.1, referred to in subsections (c) and (d), was repealed by Session Laws 2013-368, s. 4, effective October 1, 2013.

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the rewriting of subsection (b) of this section by Session Laws 2018-47, s. 4(g), effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2018-47, s. 4(g), rewrote subsection (b). For effective date and applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under prior law.

The purpose of this section is the protection of minors, and violation of the statute occurs when a party knowingly entices, forces, encourages, or otherwise facilitates a minor to engage in acts of prostitution. State v. Morris, 87 N.C. App. 499, 361 S.E.2d 414, 1987 N.C. App. LEXIS 3219 (1987) (decided under former G.S. 14-190.18 .).

It is the attempt to corrupt a minor with which this statute is concerned, and it never states or implies that actual acts of prostitution must be committed by the minor. State v. Morris, 87 N.C. App. 499, 361 S.E.2d 414, 1987 N.C. App. LEXIS 3219 (1987) (decided under former G.S. 14-190.18 .).

§ 14-205.4. Certain probation conditions.

  1. The court may order any convicted defendant to be examined for sexually transmitted infections. If a person convicted of a crime under this Article receives a sentence which includes probation and that person is infected with a sexually transmitted infection, the period of probation may commence only upon such terms and conditions as shall ensure medical treatment and prevent the spread of the infection.
  2. No female convicted under this Article shall be placed on probation in the care or charge of any person except a female probation officer.

History. 2013-368, s. 5.

§ 14-206. Reputation and prior conviction admissible as evidence.

In the trial of any person charged with a violation of any of the provisions of this Article, testimony of a prior conviction, or testimony concerning the reputation of any place, structure, or building, and of the person or persons who reside in or frequent the same, and of the defendant, shall be admissible in evidence in support of the charge.

History. 1919, c. 215, s. 3; C.S., s. 4360.

CASE NOTES

Section Provides Exception to General Inadmissibility of Other Crimes. —

Under North Carolina common law, evidence of other crimes is generally inadmissible, subject to certain well-defined exceptions. This section represents a legitimate legislative decision to broaden such rules. State v. Evans, 73 N.C. App. 214, 326 S.E.2d 303, 1985 N.C. App. LEXIS 3270 (1985).

State Not Relieved of Its Burden of Proof. —

This section does not of course relieve the State of its burden of coming forward and proving its case beyond a reasonable doubt. State v. Evans, 73 N.C. App. 214, 326 S.E.2d 303, 1985 N.C. App. LEXIS 3270 (1985).

This section does not provide an “open door” for any evidence of other crimes or reputation. State v. Evans, 73 N.C. App. 214, 326 S.E.2d 303, 1985 N.C. App. LEXIS 3270 (1985).

Discretion of Trial Judge. —

By enacting this section, the Legislature did not intend to remove entirely the trial judge’s discretion to exclude irrelevant evidence. Evidence proffered on the state’s case in chief under this section must remain relevant to the issues at hand. State v. Evans, 73 N.C. App. 214, 326 S.E.2d 303, 1985 N.C. App. LEXIS 3270 (1985).

Province of Judge. —

When the degree of guilt has been properly ascertained the judge doubtless has the right to hear testimony for the purpose of fixing the terms of imprisonment within the limits of the statute; but this right does not extend to or include the finding by the judge of the degree of the offender’s guilt. State v. Barnes, 122 N.C. 1031 , 29 S.E. 381, 1898 N.C. LEXIS 392 (1898); State v. Lee, 192 N.C. 225 , 134 S.E. 458, 1926 N.C. LEXIS 264 (1926); State v. Brinkley, 193 N.C. 747 , 138 S.E. 138, 1927 N.C. LEXIS 447 (1927) (decided under prior law).

§§ 14-207, 14-208. [Repealed]

Repealed by Session Laws 2013-368, s. 4, effective October 1, 2013, and applicable to offenses committed on or after that date.

History. 14-207; 1919, c. 215, s. 4; C.S., s. 4361; repealed by 2013-368, s. 4, effective October 1, 2013. 14-208; 1919, c. 215, s. 5; C.S., s. 4362; 1921, c. 101; 1981, c. 969, ss. 1, 2; 1993, c. 539, s.134; 1994, Ex. Sess., c. 24, s. 14(c); repealed by 2013-368, s. 4, effective October 1, 2013.

Editor’s Note.

Former G.S. 14-190.207 pertained to degrees of guilt. Former G.S. 14-190.208 pertained to punishment; probation; parole.

§ 14-208.1. Promoting travel for unlawful sexual conduct.

  1. Definition. —  For purposes of this section, the term “travel services” means transportation by air, sea, or ground; hotel or other lodging accommodations; package tours, or the provision of vouchers or coupons to be redeemed for future travel; or accommodations for a fee, commission, or other valuable consideration.
  2. Offense. —  A person commits the offense of promoting travel for unlawful sexual conduct if the person sells or offers to sell travel services that the person knows to include travel for the purpose of committing any of the following offenses in this State or for the purpose of engaging in conduct that would constitute any one of the following offenses if occurring within this State:
    1. An offense under Article 7B of Chapter 14 of the General Statutes.
    2. Any of the following offenses involving the sexual exploitation of a minor:
      1. G.S. 14-190.16 .
      2. G.S. 14-190.17 .
      3. G.S. 14-190.17 A.
    3. Any of the following offenses involving indecent liberties with a minor:
      1. G.S. 14-202.1 .
      2. G.S. 14-202.4 .
    4. Any of the following prostitution offenses:
      1. G.S. 14-204 .
      2. G.S. 14-205.1 .
      3. G.S. 14-205.2 .
      4. G.S. 14-205.3 .
  3. Punishment. —  A violation of this section is a Class G felony.

History. 2019-158, s. 2(a).

Editor’s Note.

Session Laws 2019-158, s. 2(b), made this section effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-158, s. 7, is a severability clause.

§§ 14-208.2 through 14-208.4.

Reserved for future codification purposes.

Article 27A. Sex Offender and Public Protection Registration Programs.

Part 1. Registration Programs, Purpose and Definitions Generally.

§ 14-208.5. Purpose.

The General Assembly recognizes that sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is of paramount governmental interest.

The General Assembly also recognizes that persons who commit certain other types of offenses against minors, such as kidnapping, pose significant and unacceptable threats to the public safety and welfare of the children in this State and that the protection of those children is of great governmental interest. Further, the General Assembly recognizes that law enforcement officers’ efforts to protect communities, conduct investigations, and quickly apprehend offenders who commit sex offenses or certain offenses against minors are impaired by the lack of information available to law enforcement agencies about convicted offenders who live within the agency’s jurisdiction. Release of information about these offenders will further the governmental interests of public safety so long as the information released is rationally related to the furtherance of those goals.

Therefore, it is the purpose of this Article to assist law enforcement agencies’ efforts to protect communities by requiring persons who are convicted of sex offenses or of certain other offenses committed against minors to register with law enforcement agencies, to require the exchange of relevant information about those offenders among law enforcement agencies, and to authorize the access to necessary and relevant information about those offenders to others as provided in this Article.

History. 1995, c. 545, s. 1; 1997-516, s. 1.

Cross References.

As to permanent no contact order against convicted sex offender, see G.S. 15A-1340.50 .

As to permanent civil no-contract order against sext offender on behalf of crime victim, see G.S. 50D-1 et seq.

As to prohibition on registered sex offenders being credentialed as emergency medical services personnel, see G.S. 131E-159(h).

Editor’s Note.

Session Laws 2008-181, ss. 39.1 through 39.3, provide: “39.1 There is created the Joint Legislative Study Committee on Civil Commitment of Sexual Predators Who Are Determined to be Incapable of Proceeding to Trial. The Committee shall consist of 10 members to be appointed as follows: the Speaker of the House of Representatives shall appoint five members of the House of Representatives and the President Pro Tempore of the Senate shall appoint five members the Senate.

“The Speaker of the House of Representatives shall appoint a cochair, and the President Pro Tempore of the Senate shall appoint a cochair for the Committee. The Committee may meet at any time upon the joint call of the cochairs. Vacancies on the Committee shall be filled by the same appointing authority as made the initial appointment.

“The Committee, while in the discharge of its official duties, may exercise all powers provided for under G.S. 120-19 and G.S. 120-19 .1 through G.S. 120-19.4 . The Committee may contract for professional, clerical, or consultant services as provided by G.S. 120-32.02 .

“Subject to the approval of the Legislative Services Commission, the Committee may meet in the Legislative Building or the Legislative Office Building. The Legislative Services Commission, through the Legislative Services Officer, shall assign professional staff to assist the Committee in its work. The House of Representatives’ and the Senate’s Directors of Legislative Assistants shall assign clerical support staff to the Committee, and the expenses relating to the clerical employees shall be borne by the Committee. Members of the Committee shall receive subsistence and travel expenses at the rates set forth in G.S. 120-3.1 , 138-5, or 138-6, as appropriate.

“39.2 The Committee shall study the State’s current laws regarding defendants who are determined to be incapable of proceeding to trial and the State’s current laws regarding involuntary commitment. The Committee shall further consider whether these laws adequately and appropriately address the public safety issues raised by certain defendants who are: (i) charged with committing a sex offense against a child, (ii) found incapable of proceeding to trial, and (iii) do not meet the criteria for involuntary commitment. In its study, the Committee shall review legislation adopted by other states addressing these issues. The Committee may also consider any other issues it deems relevant to this study.

“39.3 The Committee shall make a final report of its findings and recommendations to the 2009 General Assembly.”

Legal Periodicals.

For comment, “The Amy Jackson Law — A Look at the Constitutionality of North Carolina’s Answer to Megan’s Law,” see 20 Campbell L. Rev. 347 (1998).

For 1997 Legislative Survey, see 20 Campbell L. Rev. 417.

For article, “North Carolina v. Bryant: Paving the Way for a Comprehensive National Sex Offender Registry,” see 30 N.C. Cent. L. Rev. 75 (2007).

For article, “Sex Crimes and Sexual Miscues: The Need for a Clearer Line Between Forcible Rape and Nonconsensual Sex,” see 42 Wake Forest L. Rev. 1087 (2007).

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

For article, “Let’s Talk Specifics: Why STI Evidence Should Be Treated as a ‘Specific Instance’ Under Rape Shield Laws,” see 98 N.C.L. Rev. 689 (2020).

CASE NOTES

Home Address for Registration Purposes. —

“Home address” is defined, as it applies to the North Carolina Sex Offender and Public Protection Registration Programs, as a place where a registrant resides and where that registrant receives mail or other communication. This definition of home address is not synonymous with domicile, just as residence and domicile are not convertible terms. State v. Abshire, 192 N.C. App. 594, 666 S.E.2d 657, 2008 N.C. App. LEXIS 1650 (2008), rev'd, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

G.S. 15A-1343(b2)(4) imposed a mandatory condition prohibiting defendant from living with a minor, and did not permit exceptions for defendant’s own children; where defendant was convicted of taking indecent liberties with a child arising from his sexual misconduct with his minor sister-in-law, G.S. 15A-1343(b2)(4) was a valid probation condition, and did not violate due process even though it prohibited defendant from living with his own child. State v. Strickland, 169 N.C. App. 193, 609 S.E.2d 253, 2005 N.C. App. LEXIS 522 (2005).

A convicted sex offender’s failure to inquire into a state’s laws on registration requirement is neither entirely innocent nor wholly passive, particularly when combined with that sex offender’s violation of his previous resident state’s sex offender registration laws; convicted sex offender from another jurisdiction who subsequently moved to North Carolina had actual notice of his lifelong duty to register with South Carolina, which led a reasonable individual to inquire of a duty to register in any state upon relocation. State v. Bryant, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005).

Town Ordinance Barring Sex Offenders from Parks. —

Woodfin, N.C. Ordinance § 130.03 was constitutional under the Fourteenth Amendment of the United States Constitution and N.C. Const., Art. I, §§ 19 and 35 as: (1) a sex offender’s alleged liberty interest to enter a park owned by a town to have barbecues and enjoy nature was not protected by the right to intrastate travel; (2) an asserted liberty interest to freely roam in parks was not a fundamental right; (3) a town had been delegated the authority to prohibit acts detrimental to its citizens’ health, safety, or welfare by G.S. 160A-174 ; (4) G.S. 14-208.5 recognized that sex offenders posed a high risk of engaging in sex offenses; and (5) Woodfin, N.C. Ordinance § 130.03 was rationally related to a legitimate government interest in protecting children and other visitors to parks owned and operated by the town from sexual attacks. Standley v. Town of Woodfin, 362 N.C. 328 , 661 S.E.2d 728, 2008 N.C. LEXIS 496 (2008).

Registration as Sex Offender Though Conviction Not Final. —

Defendant was not wrongfully forced to register as a sex offender prematurely because defendant had a reportable conviction for sexual battery and it was proper for the trial court to instruct defendant to register as a sex offender, pursuant to G.S. 14-208.6 , even though defendant’s conviction for sexual battery was not yet final insofar as defendant’s right to direct appeal under N.C. R. App. P. 4(a)(2) had not yet expired. State v. Smith, 230 N.C. App. 387, 749 S.E.2d 507, 2013 N.C. App. LEXIS 1139 (2013), cert. denied, 367 N.C. 532 , 762 S.E.2d 221, 2014 N.C. LEXIS 682 (2014).

Registration Warranted. —

Because the evidentiary facts reasonably supported the trial court’s ultimate fact that defendant “is a danger to the community,” it was proper to order him to register as a sex offender after he pleaded guilty to secret peeping; defendant took advantage of a close, personal relationship, he used and executed a sophisticated scheme to avoid detection, he deployed a hidden camera and obtained images of the victim over an extended period of time, and he invaded the victim’s privacy. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

Registration Not Warranted. —

Trial court erred in requiring defendant to register as a sex offender because there was no competent evidence to support a finding that defendant was a danger to the community, or that defendant’s registration would further the purposes of G.S. 14-208.5 ; defendant’s witnesses opined that defendant’s prior diagnoses of major depression, alcohol abuse, and paraphilia were in remission. State v. Pell, 211 N.C. App. 376, 712 S.E.2d 189, 2011 N.C. App. LEXIS 719 (2011).

Conduct proscribed by the felony secret peeping statute constitutes a “sexual offense,” and subject to the express limitation that a defendant’s actions are for the purpose of arousing or gratifying the sexual desire of any person; therefore, defendant was in indirect criminal contempt of a custody consent order because she willfully allowed her children in the presence of her boyfriend, who was a “convicted sex offender” as provided in the order based on his conviction for felony secret peeping, even if he was not required to register as a sex offender. The record showed that the inclusion of the “convicted sex offender” language in the consent order was specifically targeted at defendant’s relationship with her boyfriend. State v. Mastor, 243 N.C. App. 476, 777 S.E.2d 516, 2015 N.C. App. LEXIS 812 (2015).

No Ex Post Facto Violation. —

Retroactive application of federal standards incorporated into G.S. 14-208.12 A(a1)(2) to an offender did not violate ex post facto prohibitions because (1) the legislature did not intend sex offender registration provisions of N.C. Gen. Stat. art. 27A to be punitive, and (2) the effects of North Carolina’s registration law did not negate the general assembly’s expressed civil intent. In re Bethea, 253 N.C. App. 659, 806 S.E.2d 677, 2017 N.C. App. LEXIS 813 (2017).

§ 14-208.6. Definitions. [Effective until January 1, 2023]

The following definitions apply in this Article:

(1a) Aggravated offense. — Any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.

(1b) County registry. — The information compiled by the sheriff of a county in compliance with this Article.

(1c) Department. — The Department of Public Safety.

(1d) Electronic mail. — The transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person.

(1e) Employed. — Includes employment that is full-time or part-time for a period of time exceeding 14 days or for an aggregate period of time exceeding 30 days during any calendar year, whether financially compensated, volunteered, or for the purpose of government or educational benefit.

(1f) Entity. — A business or organization that provides Internet service, electronic communications service, remote computing service, online service, electronic mail service, or electronic instant message or chat services whether the business or organization is inside or outside the State.

(1g) Instant message. — A form of real-time text communication between two or more people. The communication is conveyed via computers connected over a network such as the Internet.

(1h) Institution of higher education. — Any postsecondary public or private educational institution, including any trade or professional institution, college, or university.

(1i) Internet. — The global information system that is logically linked together by a globally unique address space based on the Internet Protocol or its subsequent extensions; that is able to support communications using the Transmission Control Protocol/Internet Protocol suite, its subsequent extensions, or other Internet Protocol compatible protocols; and that provides, uses, or makes accessible, either publicly or privately, high-level services layered on the communications and related infrastructure described in this subdivision.

(1j) Mental abnormality. — A congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of others.

(1k) Nonresident student. — A person who is not a resident of North Carolina but who is enrolled in any type of school in the State on a part-time or full-time basis.

(1 l ) Nonresident worker. — A person who is not a resident of North Carolina but who has employment or carries on a vocation in the State, on a part-time or full-time basis, with or without compensation or government or educational benefit, for more than 14 days, or for an aggregate period exceeding 30 days in a calendar year.

(1m) Offense against a minor. — Any of the following offenses if the offense is committed against a minor, and the person committing the offense is not the minor’s parent: G.S. 14-39 (kidnapping), G.S. 14-41 (abduction of children), and G.S. 14-43.3 (felonious restraint). The term also includes the following if the person convicted of the following is not the minor’s parent: a solicitation or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.

(1n) Online identifier. — Electronic mail address, instant message screen name, user ID, chat or other Internet communication name, but it does not mean social security number, date of birth, or pin number.

(2) Penal institution. — Any of the following:

History. 1995, c. 545, s. 1; 1997-15, ss. 1, 2; 1997-516, s. 1; 1999-363, s. 1; 2001-373, s. 1; 2002-147, s. 16; 2003-303, s. 2; 2004-109, s. 8; 2005-121, s. 2; 2005-130, s. 1; 2005-226, s. 2; 2006-247, ss. 1(b), 19(a), 20(d); 2008-117, s. 6.1; 2008-220, s. 1; 2009-498, s. 1; 2010-174, s. 16(a); 2011-145, s. 19.1(h), (j); 2012-153, s. 3; 2012-194, s. 4(a); 2013-33, s. 1; 2013-368, s. 19; 2014-100, s. 17.1(x); 2015-62, s. 1(b); 2015-181, s. 32; 2017-102, s. 5; 2017-186, s. 2(q); 2018-47, s. 4(h); 2021-138, s. 18(b).

Editor’s Note.

Session Laws 2006-247, s. 19(e), as amended by Session Laws 2010-174, s. 16(a), provides: “Section 19(a) of this act becomes effective December 1, 2006, and applies to all offenses committed prior to, on, or after that date and to all individuals who move into this State prior to, on, or after that date. The remainder of this section becomes effective December 1, 2006, and applies to all applications for a drivers license, learner’s permit, instruction permit, or special identification card submitted on or after that date.”

Session Laws 2008-220, s. 12, provides in part: “Sections 10 and 12 of this act are effective when they become law. Section 11 of this act becomes effective July 1, 2008. The provision in Section 1 of this act amending G.S. 14-208.6(5) becomes effective December 1, 2008, and applies to all persons convicted on or after that date, and to all persons released from a penal institution on or after that date. The remainder of this act becomes effective May 1, 2009, and applies to persons who are required to be registered under Article 27A of Chapter 14 of the General Statutes on or after that date. The requirements related to online identifiers apply to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after May 1, 2009, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continue to be registered on May 1, 2009. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continuing to be registered on May 1, 2009, shall not be in violation of the online identifier requirements if they provide the required information at the first verification of information that occurs on or after May 1, 2009.”

Session Laws 2009-498, s. 1, which substituted “ G.S. 14-202.3 (Solicitation of child by computer or certain other electronic devices to commit an unlawful sex act), G.S. 14-202.4 (a) (taking indecent liberties with a student)” for “or G.S. 14-202.3 (Solicitation of child by computer to commit an unlawful sex act)” in the first sentence of subdivision (5), was applicable to all persons convicted of a violation of G.S. 14-202.4 on or after December 1, 2009, and to all persons released from a penal institution on or after December 1, 2009.

Session Laws 2010-174, s. 16(b), provides: “This section becomes effective October 1, 2010, and applies to any person required to register as a sex offender under Article 27A of Chapter 14 of the General Statutes, any person serving an active sentence or on supervised probation, parole, or post-release supervision, for any offense, on or after that date, and any person convicted of any felony offense on or after that date.”

Session Laws 2012-153, s. 8, made the amendments to this section by Session Laws 2012-153, s. 3, applicable to offenses committed on or after December 1, 2012.

Session Laws 2013-33, s. 2, made the amendments to this section by Session Laws 2013-33, s. 1, applicable to offenses committed on or after December 1, 2013.

Session Laws 2013-368, s. 25, made the amendments to this section by Session Laws 2013-368, s. 19, applicable to offenses committed on or after October 1, 2013. Section 25 further provides: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2015-62, s. 1(d), made the substitution of “15 years of age or younger and” for “13, 14, or 15 years old where” in subdivision (5) of this section by Session Laws 2015-62, s. 1(b), applicable to offenses committed on or after December 1, 2015.

Session Laws 2015-181, s. 47, provides: “The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority the Revisor of Statutes inserted “and” following “ G.S. 14-27.25(a) (statutory rape of a person who is 15 years of age or younger” and “ G.S. 14-27.30(a) (statutory sexual offense with a person who is 15 years of age or younger” in subdivision (5).

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the rewriting of this section by Session Laws 2018-47, s. 4(h), effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2021-138, s. 18(p), made subdivision (3e) of this section, as added by Session Laws 2021-138, s. 18(b), applicable to satellite-based monitoring determinations on or after December 1, 2021, and includes felony convictions obtained before, on, or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Effect of Amendments.

Session Laws 2004-109, s. 8, effective December 1, 2004, and applicable to offenses committed on or after that date, inserted “(a1)” in subdivision (4)(d).

Session Laws 2005-121, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, inserted “or G.S. 14-202.3 (Solicitation of child by computer to commit an unlawful sex act)” at the end of the first sentence of subdivision (5) and made a minor stylistic change.

Session Laws 2005-130, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, inserted “G.S. 14-27.5A (sexual battery)” near the beginning of subdivision (5).

Session Laws 2005-226, s. 2, effective December 1, 2005, and applicable to offenses committed on or after that date, inserted “G.S. 14-190.9(a1) (felonious indecent exposure)” preceding “G.S. 14-190.16.”

Session Laws 2009-498, s. 1, effective December 1, 2009, and applicable to all persons convicted of a violation of G.S. 14-202.4 on or after that date, and to all persons released from a penal institution on or after that date, substituted “G.S. 14-202.3 (Solicitation of child by computer or certain other electronic devices to commit an unlawful sex act), G.S. 14-202.4 (a) (taking indecent liberties with a student)” for “or G.S. 14-202.3 (Solicitation of child by computer to commit an unlawful sex act)” in the first sentence of subdivision (5).

Session Laws 2011-145, s. 19.1(h) and (j), effective January 1, 2012, substituted “Section of Prisons of the Division of Adult Correction of the Department of Public Safety” for “Division of Prisons of the Department of Correction” in (2)a.

Session Laws 2012-153, s. 3, effective December 1, 2012, added subdivision (4)e. For applicability, see editor’s note.

Session Laws 2012-194, s. 4(a), effective July 17, 2012, inserted “former” preceding “G.S. 14-27.6” in subdivision (5).

Session Laws 2013-33, s. 1, effective December 1, 2013, inserted “G.S. 14-43.11 (human trafficking) if (i) the offense is committed against a minor who is less than 18 years of age or (ii) the offense is committed against any person with the intent that they be held in sexual servitude” in subdivision (5). For applicability, see Editor’s note.

Session Laws 2013-368, s. 19, effective October 1, 2013, in subdivision (5), deleted “G.S. 14-190.18 (promoting prostitution of a minor), G.S. 14-190.19 (participating in the prostitution of a minor)” preceding “G.S. 14-202.1” and inserted “G.S. 14-205.2(c) or (d) (patronizing a prostitute who is a minor or a mentally disabled person), G.S. 14-205.3(b) (promoting prostitution of a minor or a mentally disabled person)”. For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(x), effective July 1, 2014, rewrote subdivision (1c); and substituted “Department” for “Division” in subdivision (8).

Session Laws 2015-62, s. 1(b), effective December 1, 2015, substituted “15 years of age or younger and” for “13, 14, or 15 years old where” following “G.S. 14-27.7A (statutory rape or sexual offense of a person who is” in subdivision (5). For applicability, see editor’s note.

Session Laws 2015-181, s. 32, effective December 1, 2015, in subdivision (5), updated statutory references to reflect the recodification of G.S. 14-27.1 et seq. by Session Laws 2015-181. For applicability, see editor’s note.

Session Laws 2017-102, s. 5, effective December 1, 2015, added “G.S. 14-27.24 (first-degree statutory rape),” near the beginning of the first sentence of subdivision (5).

Session Laws 2017-186, s. 2(q), effective December 1, 2017, inserted “and Juvenile Justice” in subdivision (2)a.

Session Laws 2018-47, s. 4(h), rewrote the section. For effective date and applicability, see editor’s note.

Session Laws 2021-138, s. 18(b), added subdivision (3e). For effective date and applicability, see editor’s note.

Legal Periodicals.

For “Legislative Survey: Criminal Law,” see 22 Campbell L. Rev. 253 (2000).

For article, “North Carolina v. Bryant: Paving the Way for a Comprehensive National Sex Offender Registry,” see 30 N.C. Cent. L. Rev. 75 (2007).

For article, “Sex Crimes and Sexual Miscues: The Need for a Clearer Line Between Forcible Rape and Nonconsensual Sex,” see 42 Wake Forest L. Rev. 1087 (2007).

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For article, “Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina,” see 38 Campbell L. Rev. 151 (2016).

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

CASE NOTES

Reportable Offense. —

Failing to register as a sexual offender was not a status but was a separate crime, and therefore defendant was not subjected to double jeopardy or a violation of the Structured Sentencing Act, G.S. 15A-1340.10 , by including his rape conviction in calculating his prior record level for sentencing; defendant’s conviction of failing to register as a sexual offender was affirmed. State v. Harrison, 165 N.C. App. 332, 598 S.E.2d 261, 2004 N.C. App. LEXIS 1153 (2004).

Trial court properly determined that defendant was subject to satellite-based monitoring for the duration of his life when the offense on which defendant’s recidivism determination was made, taking indecent liberties with a minor, was clearly one described in G.S. 14-208.5 even though it was not reportable because it predated the act; there is nothing in the statutory language that requires that the prior conviction in a recidivism determination must be for a reportable offense, and the code is clear that the prior conviction must be for an offense that is described in the statute defining reportable offenses. State v. Wooten, 194 N.C. App. 524, 669 S.E.2d 749, 2008 N.C. App. LEXIS 2232 (2008), cert. dismissed, 363 N.C. 138 , 676 S.E.2d 308, 2009 N.C. LEXIS 269 (2009).

After defendant’s guilty plea to taking indecent liberties with a child—a reportable conviction, as defined in G.S. 14-208.6(4)—the trial court erred in enrolling defendant in a satellite-based monitoring program because the Department of Corrections assessed defendant as a moderate risk and no evidence supported the court’s findings of a higher level of risk or the requirement of the highest possible level of supervision and monitoring. State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262, 2009 N.C. App. LEXIS 1569 (2009).

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court ordered that when he was released from custody he enroll in satellite-based monitoring for life, the trial court had not followed the required sentencing procedure set forth in G.S. 14-208.40 A because, while the trial court correctly made an initial finding that defendant had been convicted of a reportable offense pursuant to G.S. 14-208.6(4) and (5), at that point, the trial court made no findings that defendant had been convicted of an aggravated offense as required by G.S. 14-208.40 A(b). Instead, the trial court ordered a risk assessment to be completed that afternoon, if possible; the court prematurely ordered the risk assessment and improperly considered sentencing pursuant to G.S. 14-208.40A(c) and (d) simultaneously. State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

Trial court’s order was sufficient to require defendant’s enrollment in lifetime satellite-based monitoring (SBM) because the order fully complied with the requirements set forth in G.S. 14-208.40 A, and defendant was convicted of a reportable conviction as defined by G.S. 14-208.6(4) since he pleaded guilty to two counts of taking indecent liberties with a child in violation of G.S. 14-202.1 ; at sentencing, the State presented to the trial court evidence that defendant was a recidivist, and pursuant to G.S. 14-208.40 A(c), because the trial court found that defendant was a recidivist, it ordered him to enroll in SBM for life. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

Order enrolling defendant in satellite-based monitoring (SBM) at a probation violation hearing was improper because the trial court had already found that defendant was not subject to SBM at a prior hearing based on the same reportable convictions, and a second such hearing violated G.S. 14-208.40 B(a); further, there was no indication in the record that Department of Correction followed the notice requirements of G.S. 14-208.40 B(b), and the trial court failed to make the findings required by G.S. 14-208.40B(c), as a probation violation is not a crime in itself, much less a “reportable conviction” under G.S. 14-208.40B. State v. Clayton, 206 N.C. App. 300, 697 S.E.2d 428, 2010 N.C. App. LEXIS 1451 (2010).

Trial court erred in finding that defendant had been convicted of an offense against a minor where defendant was convicted of taking indecent liberties with a child as G.S. 14-208.6(1m) defined an offense against a minor as requiring a conviction of kidnapping, child abduction, or felonious restraint; however, taking indecent liberties with a child was a reportable conviction under G.S. 14-208.40 A(a) and G.S. 14-208.40 B(a) as it was a sexually violent offense under G.S. 14-208.6(5), and was grounds for imposition of satellite-based monitoring, assuming all other requirements are met. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Order requiring defendant to enroll in satellite-based monitoring under G.S. 14-208.40 B(1m) for the remainder of his life was proper where defendant was convicted of a reportable offense under G.S. 14-208.6(4) as his 2009 convictions for abduction of children under G.S. 14-41 fell under the offense against a minor portion of the reportable conviction definition; the trial court had determined at the sentencing hearing that defendant’s 2009 convictions were reportable offenses and that defendant was not the victims’ parent. State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Because G.S. 14-208.6(1m) explicitly requires that the State show that defendant was not the parent of the minor victim in addition to the fact that defendant was convicted of one of the listed offenses, the statute effectively mandates that the trial court must look beyond the offense of conviction; therefore, in deciding whether a conviction counts as a reportable conviction under the “offense against a minor” provision, the trial court is not restricted to simply considering the elements of the offense for which the defendant was convicted to the extent that the trial court may make a determination as to whether or not the defendant was a parent of the abducted child. State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Trial court did not err in ordering defendant to register as a sex offender because his convictions under former statutes for second-degree rape and second-degree sexual offense were sexually violent offenses and were reportable convictions; the prior version of subsection (5), in which the former statutes were listed, which would have applied, but for the 2015 amendment, applied to prosecutions and convictions under those former offenses. State v. Mack, 277 N.C. App. 505, 860 S.E.2d 271, 2021- NCCOA-215, 2021 N.C. App. LEXIS 219 (2021).

Aggravated Offense. —

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court’s conclusion that defendant committed an aggravated offense was based in part upon defendant’s colloquy at trial, when making a determination pursuant to G.S. 14-208.40 A, the trial court was only to consider the elements of the offense of which defendant was convicted and was not to consider the underlying factual scenario giving rise to the conviction. Neither attempted first-degree sex offense nor taking indecent liberties with a child was an aggravated offense within the meaning of G.S. 14-208.6(1a). State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

Defendant’s conviction for taking indecent liberties with a child, a violation of G.S. 14-202.1 , was not an aggravated offense, as defined by G.S. 14-208.6(1a), and, therefore, the trial court erred in ordering defendant to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 B. State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562, 2010 N.C. App. LEXIS 34 (2010).

Trial court erred in determining that sexual battery under G.S. 14-27.5 A was an aggravated offense for purposes of satellite-based monitoring program under G.S. 14-208.40 B because an aggravated offense required engaging in a sexual act involving vaginal, anal, or oral penetration through the use of force, pursuant to G.S. 14-208.6(1a), and sexual battery did not require vaginal, anal, or oral penetration. State v. Brooks, 204 N.C. App. 193, 693 S.E.2d 204, 2010 N.C. App. LEXIS 822 (2010).

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Offender’s conviction of felonious child abuse under G.S. 14-318.4(a2) may or may not be a conviction which results from the commission of “a sexual act involving penetration,” which is required for an offense to be considered an “aggravated offense” under G.S. 14-208.6(1a), because without a review of the underlying factual scenario giving rise to the conviction, which is prohibited, a trial court cannot know whether an offender was convicted under G.S. 14-318.4(a2) since he committed a sexual act involving penetration; while an “aggravated offense” is an offense in which the offender has “engaged in” a specific type of sexual act, an offender may be convicted of felonious child abuse by the commission of any sexual act as a result of either “committing” any sexual act upon a child less than 16 years of age, or as a result of “allowing the commission” of any sexual act upon such a child, and, thus, by examining the elements of the offense alone, a trial court could not determine whether a person convicted of felonious child abuse by the commission of any sexual act necessarily “engaged in” a specific type of sexual act himself. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Definition of “aggravated offense” in G.S. 14-208.6(1a) is not unconstitutionally vague. State v. McCravey, 203 N.C. App. 627, 692 S.E.2d 409, 2010 N.C. App. LEXIS 722 (2010).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Because statutory rape requires the victim to be 13, 14, or 15 years of age and incapable of consenting, it is an aggravated offense, as defined by G.S. 14-208.6(1a). State v. Sprouse, 217 N.C. App. 230, 719 S.E.2d 234, 2011 N.C. App. LEXIS 2434 (2011).

As the trial court erred it determining that defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to enroll in lifetime satellite-based monitoring under G.S. 14-208.40 A. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Although second-degree sexual offense, G.S. 14-27.5 , is a “sexually violent offense,” it cannot be an “aggravated offense” as defined by G.S. 14-208.6(1a), because vaginal, anal, or oral penetration are not elements of that offense. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

As the trial court erred it determining that Defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to register as a sex offender for life pursuant to G.S. 14-208.23 . State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Trial court did not err by finding that defendant’s second-degree rape conviction constituted an aggravated offense, subjecting him to lifetime satellite-based monitoring, because the elements of second-degree rape under G.S. 14-27.3(a)(2), including the perpetrator’s use of force, were sufficient to constitute an aggravated offense. State v. Talbert, 233 N.C. App. 403, 756 S.E.2d 98, 2014 N.C. App. LEXIS 316 (2014).

In a rape case, a trial court improperly ordered satellite based monitoring based on a finding of an aggravated offense because the crime was committed on September 22, 2001, and the statute was only effective for crimes committed on or after October 1, 2001. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565, 2014 N.C. App. LEXIS 1210 (2014).

Trial court erred by concluding that attempted second-degree rape was an aggravated offense, and therefore it erred by ordering defendant to submit to lifetime satellite-based monitoring and lifetime sex offender registration. The case was remanded for an order requiring defendant to register as a sex offender for 30 years. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

Trial court erred in ordering registration for life based upon findings defendant was convicted of aggravated offenses, because neither sexual offense with a child nor sexual activity by a substitute parent were listed as aggravated offenses in this section, and without a determination that the program was a reasonable search. State v. Johnson, 253 N.C. App. 337, 801 S.E.2d 123, 2017 N.C. App. LEXIS 314 (2017).

“Offense Against a Minor.” —

Trial court erred in ordering lifetime satellite based monitoring for defendant because it did not follow the procedures in G.S. 14-208.40 A; the finding that defendant had committed offenses against a minor was in error because defendant was not convicted of any of the offenses listed in G.S. 14-208.6(1i), and he was the minor’s adoptive parent. State v. Smith, 201 N.C. App. 681, 687 S.E.2d 525, 2010 N.C. App. LEXIS 24 (2010).

“Recidivist”. —

Imposition of satellite-based monitoring was improper as the trial court did not determine whether defendant was a sexually violated predator or recidivist, and a Department of Correction assessment was not performed. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335, 2010 N.C. App. LEXIS 2362 (2010).

Defendant’s prior conviction for indecent liberties supported the trial court’s finding that defendant was a recidivist for purposes of the satellite-based monitoring statute, G.S. 14-208.40 B, since: (1) a recidivist was a person who had a prior conviction for an offense that was described in G.S. 14-208.6(4); (2) G.S. 14-208.6(4) described a variety of offense classes, including sexually violent offenses; and (3) a sexually violent offense included the offense of taking indecent liberties with a child as described in G.S. 14-202.1 . State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Because the State failed to demonstrate the substantial similarity of defendant’s out-of-state convictions to North Carolina crimes and since the trial court failed to determine that the out-of-state convictions were substantially similar to North Carolina offenses, the trial court’s conclusion that defendant was a recidivist was not supported by competent evidence and remand for resentencing was required. State v. Springle, 244 N.C. App. 760, 781 S.E.2d 518, 2016 N.C. App. LEXIS 55 (2016).

Defendant met the statutory definition of a recidivist, having been convicted of one reportable offense earlier and a second offense later and the fact that the convictions occurred in the same day was not an issue, as they were separate proceedings. State v. Bishop, 255 N.C. App. 767, 805 S.E.2d 367, 2017 N.C. App. LEXIS 806 (2017).

G.S. 14-208.40 A(c) and this section were unconstitutional under the Fourth Amendment as applied to all individuals who, like defendant, were in the third Bowditch category and who were subject to mandatory lifetime satellite-based monitoring based solely on their status as a “recidivist,” and therefore the appellate court erred in limiting its holding to the constitutionality of the program as applied only to defendant. State v. Grady, 372 N.C. 509 , 831 S.E.2d 542, 2019 N.C. LEXIS 799 (2019).

Trial court erred in requiring defendant to enroll in lifetime satellite-based monitoring following his future release from prison because defendant was not a “recidivist,” would not be released from prison for 30 to 43 years, and the State failed to establish that lifetime satellite-based monitoring following defendant’s eventual release from prison was a reasonable search where the State made no attempt to report the level of intrusion as to the information revealed under the satellite-based monitoring program, nor did it establish that the nature and extent of the monitoring that was currently administered, and upon which the present order was based, would remain unchanged by the time that defendant was released from prison. State v. Strudwick, 273 N.C. App. 676, 849 S.E.2d 891, 2020 N.C. App. LEXIS 710 (2020), rev'd, 379 N.C. 94 , 864 S.E.2d 231, 2021- NCSC-127, 2021 N.C. LEXIS 1019 (2021).

Satellite-Based Monitoring. —

Order pursuant G.S. 14-208.40 A(a) that defendant enroll in satellite-based monitoring for ten years after release from prison for sexual crime convictions was error because the Static 99 assessment conducted by the DOC concluded that defendant posed a “low” risk of re-offending, and there were no further findings or additional evidence; however, the state’s petition for writ of certiorari was granted, and the case was remanded to the trial court to enter an appropriate order in light of the recent case holding that second-degree rape was an aggravated offense as defined by the statute. State v. Oxendine, 206 N.C. App. 205, 696 S.E.2d 850, 2010 N.C. App. LEXIS 1450 (2010).

Trial court erred in finding that lifetime satellite-based monitoring was required for defendant and in failing to order that a risk assessment of defendant be performed pursuant to G.S. 14-208.40 A(d) prior to ordering him to enroll in a lifetime satellite-based monitoring program upon release from prison because defendant was convicted for first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1, not attempted rape of a child, pursuant to G.S. 14-27.2 A as found by the trial court; the trial court did not find that defendant was a sexually violent predator or that he was a recidivist, and it found that the offense was not an aggravated offense. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

Trial court erred in failing to follow the procedural framework set out in G.S. 14-208.40 A when it required defendant, who was convicted of violating G.S. 14-27.7(a), to register as a sex offender and enroll in satellite-based monitoring for his natural life because the trial waited to decide whether defendant fell within G.S. 14-208.40 A(b)(i) through (iv) until after it had a chance to review the risk assessment under G.S. 14-208.40A(b)(v); the trial court erred in considering the risk assessment before deciding whether defendant committed an aggravated offense, and it could not determine, based on the elements of the offense alone, that defendant engaged in a sexual act involving penetration. State v. Mann, 214 N.C. App. 155, 715 S.E.2d 213, 2011 N.C. App. LEXIS 1618 (2011).

Neither the North Carolina Department of Correction nor the trial court was responsible for any type of notice regarding defendant’s eligibility for satellite-based monitoring (SBM) because G.S. 14-208.40 A was the applicable statute for determining his eligibility for enrollment in SBM and the time period of his enrollment since when defendant entered an Alford plea to four counts of taking indecent liberties with a minor in violation of G.S. 14-27.7 A(a), he was newly convicted of a reportable conviction. since defendant was placed on probation and, as a condition of his probation, was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40 A, not G.S. 14-208.40B. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Trial court properly exercised subject matter jurisdiction pursuant to G.S. 14-208.40 A and followed the proper hearing procedures in assessing defendant’s eligibility for satellite-based monitoring because the trial court determined that defendant was convicted of a reportable offense, statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a), considered the assessment prepared by the North Carolina Department of Correction and the testimony of the witnesses; the General Assembly devised a separate procedure for determining eligibility for satellite-based monitoring and clearly granted the superior courts subject matter jurisdiction to conduct these determinations pursuant to specific statutory procedures. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Imposition of lifetime satellite-based monitoring was appropriate because defendant was convicted of first-degree rape, which required vaginal penetration; without engaging in an improper examination of the facts giving rise to the crimes for which defendant was convicted, the trial court could have ascertained that both vaginal penetration and force were involved. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Because defendant’s conviction for statutory rape, based upon acts committed in 2005, could not be considered a reportable conviction, defendant was not eligible for satellite-based monitoring for the offense. State v. Kpaeyeh, 246 N.C. App. 694, 784 S.E.2d 582, 2016 N.C. App. LEXIS 363 (2016).

Defendant was convicted of first-degree statutory rape and first-degree statutory sexual offense and those convictions qualified defendant as an aggravated offender; thus, the trial court appropriately ordered lifetime satellite-based monitoring (SBM), and because searches effected by the imposition of lifetime SBM were reasonable as applied to the aggravated offender category, the imposition of SBM did not violate the Fourth Amendment. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Search effected by the imposition of lifetime satellite-based monitoring (SBM) on the category of aggravated offenders is reasonable under the Fourth Amendment; therefore, the SBM statute as applied to aggravated offenders is not unconstitutional. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) is clearly constitutionally reasonable during a defendant’s post-release supervision period because the SBM program serves a legitimate government interest; imposing lifetime SBM upon aggravated offenders serves the General Assembly’s stated purpose by assisting law enforcement agencies in solving crimes, and SBM also serves the State’s interest in protecting the public from aggravated offenders by deterring recidivism. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Search arising from the satellite-based monitoring program for a limited category of aggravated offenders is reasonable under the Fourth Amendment because the purpose of the program to protect the public from sex crimes is of paramount importance, and an aggravated offender’s reasonable expectation of privacy is significantly diminished; the incremental nature of a search providing location information and the method of data collection via an ankle bracelet are more inconvenient than intrusive. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

“Parent.” —

Defendant had to register on the Sexual Offender and Public Protection Registry upon defendant’s conviction of abducting a child (defendant’s stepchild); because defendant was not the biological or adoptive father of the child, defendant was not a “parent” and was required to register pursuant to G.S. 14-208.6(1m). State v. Stanley, 205 N.C. App. 707, 697 S.E.2d 389, 2010 N.C. App. LEXIS 1319 , writ denied, 364 N.C. 440 , 702 S.E.2d 798, 2010 N.C. LEXIS 791 (2010).

Convicted sex offender from another jurisdiction who subsequently moved to North Carolina had actual notice of his lifelong duty to register with South Carolina, which led a reasonable individual to inquire of a duty to register in any state upon relocation. State v. Bryant, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005); State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430, 2009 N.C. App. LEXIS 1179 (2009); State v. Worley, 198 N.C. App. 329, 679 S.E.2d 857, 2009 N.C. App. LEXIS 1167 (2009).

Sexually Violent Offense. —

Trial court erred when it required defendant to register as a sex offender upon his release from prison because neither of the offenses for which defendant was convicted—second degree kidnapping and a crime against nature—was a “sexually violent offense.” State v. Burgess, 216 N.C. App. 54, 715 S.E.2d 867, 2011 N.C. App. LEXIS 2045 (2011).

Defendant qualified for lifetime satellite-based monitoring because he committed a “sexually violent offense” as defined in G.S. 14-208.6(5) by being convicted of taking incident liberties with a child in violation of G.S. 14-202.1 , although the trial court erroneously found that this was an “offense against a minor.” State v. Sims, 216 N.C. App. 168, 720 S.E.2d 398, 2011 N.C. App. LEXIS 2157 (2011).

Effect of Sexually Violent Predator Classification on Sentencing Issues. —

While G.S. 14.208.6(6) provides a definition for a sexually violent predator, nothing in that statute, nor in G.S. 14.208.20 regarding the procedure for determining if an individual is a sexually violent predator, or G.S. 14.208.23 and G.S. 14.208.6A regarding sex offender registration, sets out any sentencing implications that would allow a trial court to extend a defendant’s sentence on a rape charge beyond the presumptive range for that crime; thus, a trial court’s labeling of defendant as a “predator” was not a proper factor in enhancing defendant’s rape conviction sentence. State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697, 2004 N.C. App. LEXIS 1779 (2004), aff'd in part and rev'd in part, 360 N.C. 145 , 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005), dismissed, 379 N.C. 672 , 865 S.E.2d 847, 2021 N.C. LEXIS 1231 (2021).

True Prayer for Judgment Continued Did Not Operate as “Final Judgment.” —

Plaintiff was not required to register as a sex offender because the only conviction requiring registration was entered as a prayer for judgment continued, and a true prayer for judgment continued did not operate as a “final conviction” under G.S. 14-208.6(4) for the purposes of the Sex Offender and Public Protection Registration Program; the conditions imposed upon plaintiff did not appear to be punitive in nature. Walters v. Cooper, 226 N.C. App. 166, 739 S.E.2d 185, 2013 N.C. App. LEXIS 282 , aff'd, 367 N.C. 117 , 748 S.E.2d 144, 2013 N.C. LEXIS 1021 (2013).

Registration as Sex Offender Though Conviction Not Final. —

Defendant was not wrongfully forced to register as a sex offender prematurely because defendant had a reportable conviction for sexual battery and it was proper for the trial court to instruct defendant to register as a sex offender, pursuant to G.S. 14-208.6 , even though defendant’s conviction for sexual battery was not yet final insofar as defendant’s right to direct appeal under N.C. R. App. P. 4(a)(2) had not yet expired. State v. Smith, 230 N.C. App. 387, 749 S.E.2d 507, 2013 N.C. App. LEXIS 1139 (2013), cert. denied, 367 N.C. 532 , 762 S.E.2d 221, 2014 N.C. LEXIS 682 (2014).

Wrongful Registration Claim. —

When a sex offender registrant brought claims against state and county officials for wrongfully being required to register, after the registrant was no longer required to register in Michigan, the registrant’s N.C. Const. art. I, § 19 claims against a state official failed because (1) the registrant sought no removal from Michigan’s registry, and (2) G.S. 14-208.7(a) and 14.208.6(4)(b) gave the official no discretion to remove the registrant from North Carolina’s registry. Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462, 2017 N.C. App. LEXIS 435 (2017).

OPINIONS OF ATTORNEY GENERAL

Who Must Register. — An individual convicted of the federal offense of sexual abuse of a ward is required to register as a sex offender. See opinion of Attorney General to Sheriff Johnny M. Williams, Warren County Sheriff’s Office, 2002 N.C. AG LEXIS 19 (6/24/02).

§ 14-208.6. Definitions. [Effective January 1, 2023]

The following definitions apply in this Article:

(1a) Aggravated offense. — Any criminal offense that includes either of the following: (i) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim of any age through the use of force or the threat of serious violence; or (ii) engaging in a sexual act involving vaginal, anal, or oral penetration with a victim who is less than 12 years old.

(1b) County registry. — The information compiled by the sheriff of a county in compliance with this Article.

(1c) Department. — The Department of Public Safety.

(1d) Electronic mail. — The transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person.

(1e) Employed. — Includes employment that is full-time or part-time for a period of time exceeding 14 days or for an aggregate period of time exceeding 30 days during any calendar year, whether financially compensated, volunteered, or for the purpose of government or educational benefit.

(1f) Entity. — A business or organization that provides Internet service, electronic communications service, remote computing service, online service, electronic mail service, or electronic instant message or chat services whether the business or organization is inside or outside the State.

(1g) Instant message. — A form of real-time text communication between two or more people. The communication is conveyed via computers connected over a network such as the Internet.

(1h) Institution of higher education. — Any postsecondary public or private educational institution, including any trade or professional institution, college, or university.

(1i) Internet. — The global information system that is logically linked together by a globally unique address space based on the Internet Protocol or its subsequent extensions; that is able to support communications using the Transmission Control Protocol/Internet Protocol suite, its subsequent extensions, or other Internet Protocol compatible protocols; and that provides, uses, or makes accessible, either publicly or privately, high-level services layered on the communications and related infrastructure described in this subdivision.

(1j) Mental abnormality. — A congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of others.

(1k) Nonresident student. — A person who is not a resident of North Carolina but who is enrolled in any type of school in the State on a part-time or full-time basis.

(1 l ) Nonresident worker. — A person who is not a resident of North Carolina but who has employment or carries on a vocation in the State, on a part-time or full-time basis, with or without compensation or government or educational benefit, for more than 14 days, or for an aggregate period exceeding 30 days in a calendar year.

(1m) Offense against a minor. — Any of the following offenses if the offense is committed against a minor, and the person committing the offense is not the minor’s parent: G.S. 14-39 (kidnapping), G.S. 14-41 (abduction of children), and G.S. 14-43.3 (felonious restraint). The term also includes the following if the person convicted of the following is not the minor’s parent: a solicitation or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.

(1n) Online identifier. — Electronic mail address, instant message screen name, user ID, chat or other Internet communication name, but it does not mean social security number, date of birth, or pin number.

(2) Penal institution. — Any of the following:

History. 1995, c. 545, s. 1; 1997-15, ss. 1, 2; 1997-516, s. 1; 1999-363, s. 1; 2001-373, s. 1; 2002-147, s. 16; 2003-303, s. 2; 2004-109, s. 8; 2005-121, s. 2; 2005-130, s. 1; 2005-226, s. 2; 2006-247, ss. 1(b), 19(a), 20(d); 2008-117, s. 6.1; 2008-220, s. 1; 2009-498, s. 1; 2010-174, s. 16(a); 2011-145, s. 19.1(h), (j); 2012-153, s. 3; 2012-194, s. 4(a); 2013-33, s. 1; 2013-368, s. 19; 2014-100, s. 17.1(x); 2015-62, s. 1(b); 2015-181, s. 32; 2017-102, s. 5; 2017-186, s. 2(q); 2018-47, s. 4(h); 2021-138, s. 18(b); 2021-180, s. 19C.9(ii).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor’s Note.

Session Laws 2006-247, s. 19(e), as amended by Session Laws 2010-174, s. 16(a), provides: “Section 19(a) of this act becomes effective December 1, 2006, and applies to all offenses committed prior to, on, or after that date and to all individuals who move into this State prior to, on, or after that date. The remainder of this section becomes effective December 1, 2006, and applies to all applications for a drivers license, learner’s permit, instruction permit, or special identification card submitted on or after that date.”

Session Laws 2008-220, s. 12, provides in part: “Sections 10 and 12 of this act are effective when they become law. Section 11 of this act becomes effective July 1, 2008. The provision in Section 1 of this act amending G.S. 14-208.6(5) becomes effective December 1, 2008, and applies to all persons convicted on or after that date, and to all persons released from a penal institution on or after that date. The remainder of this act becomes effective May 1, 2009, and applies to persons who are required to be registered under Article 27A of Chapter 14 of the General Statutes on or after that date. The requirements related to online identifiers apply to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after May 1, 2009, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continue to be registered on May 1, 2009. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continuing to be registered on May 1, 2009, shall not be in violation of the online identifier requirements if they provide the required information at the first verification of information that occurs on or after May 1, 2009.”

Session Laws 2009-498, s. 1, which substituted “ G.S. 14-202.3 (Solicitation of child by computer or certain other electronic devices to commit an unlawful sex act), G.S. 14-202.4 (a) (taking indecent liberties with a student)” for “or G.S. 14-202.3 (Solicitation of child by computer to commit an unlawful sex act)” in the first sentence of subdivision (5), was applicable to all persons convicted of a violation of G.S. 14-202.4 on or after December 1, 2009, and to all persons released from a penal institution on or after December 1, 2009.

Session Laws 2010-174, s. 16(b), provides: “This section becomes effective October 1, 2010, and applies to any person required to register as a sex offender under Article 27A of Chapter 14 of the General Statutes, any person serving an active sentence or on supervised probation, parole, or post-release supervision, for any offense, on or after that date, and any person convicted of any felony offense on or after that date.”

Session Laws 2012-153, s. 8, made the amendments to this section by Session Laws 2012-153, s. 3, applicable to offenses committed on or after December 1, 2012.

Session Laws 2013-33, s. 2, made the amendments to this section by Session Laws 2013-33, s. 1, applicable to offenses committed on or after December 1, 2013.

Session Laws 2013-368, s. 25, made the amendments to this section by Session Laws 2013-368, s. 19, applicable to offenses committed on or after October 1, 2013. Section 25 further provides: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2015-62, s. 1(d), made the substitution of “15 years of age or younger and” for “13, 14, or 15 years old where” in subdivision (5) of this section by Session Laws 2015-62, s. 1(b), applicable to offenses committed on or after December 1, 2015.

Session Laws 2015-181, s. 47, provides: “The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority the Revisor of Statutes inserted “and” following “ G.S. 14-27.25(a) (statutory rape of a person who is 15 years of age or younger” and “ G.S. 14-27.30(a) (statutory sexual offense with a person who is 15 years of age or younger” in subdivision (5).

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the rewriting of this section by Session Laws 2018-47, s. 4(h), effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2021-138, s. 18(p), made subdivision (3e) of this section, as added by Session Laws 2021-138, s. 18(b), applicable to satellite-based monitoring determinations on or after December 1, 2021, and includes felony convictions obtained before, on, or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to sub-subdivision (2)a. of this section by Session Laws 2021-180, s. 19C.9(ii), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2004-109, s. 8, effective December 1, 2004, and applicable to offenses committed on or after that date, inserted “(a1)” in subdivision (4)(d).

Session Laws 2005-121, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, inserted “or G.S. 14-202.3 (Solicitation of child by computer to commit an unlawful sex act)” at the end of the first sentence of subdivision (5) and made a minor stylistic change.

Session Laws 2005-130, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, inserted “G.S. 14-27.5A (sexual battery)” near the beginning of subdivision (5).

Session Laws 2005-226, s. 2, effective December 1, 2005, and applicable to offenses committed on or after that date, inserted “G.S. 14-190.9(a1) (felonious indecent exposure)” preceding “G.S. 14-190.16.”

Session Laws 2009-498, s. 1, effective December 1, 2009, and applicable to all persons convicted of a violation of G.S. 14-202.4 on or after that date, and to all persons released from a penal institution on or after that date, substituted “G.S. 14-202.3 (Solicitation of child by computer or certain other electronic devices to commit an unlawful sex act), G.S. 14-202.4 (a) (taking indecent liberties with a student)” for “or G.S. 14-202.3 (Solicitation of child by computer to commit an unlawful sex act)” in the first sentence of subdivision (5).

Session Laws 2011-145, s. 19.1(h) and (j), effective January 1, 2012, substituted “Section of Prisons of the Division of Adult Correction of the Department of Public Safety” for “Division of Prisons of the Department of Correction” in (2)a.

Session Laws 2012-153, s. 3, effective December 1, 2012, added subdivision (4)e. For applicability, see editor’s note.

Session Laws 2012-194, s. 4(a), effective July 17, 2012, inserted “former” preceding “G.S. 14-27.6” in subdivision (5).

Session Laws 2013-33, s. 1, effective December 1, 2013, inserted “G.S. 14-43.11 (human trafficking) if (i) the offense is committed against a minor who is less than 18 years of age or (ii) the offense is committed against any person with the intent that they be held in sexual servitude” in subdivision (5). For applicability, see Editor’s note.

Session Laws 2013-368, s. 19, effective October 1, 2013, in subdivision (5), deleted “G.S. 14-190.18 (promoting prostitution of a minor), G.S. 14-190.19 (participating in the prostitution of a minor)” preceding “G.S. 14-202.1” and inserted “G.S. 14-205.2(c) or (d) (patronizing a prostitute who is a minor or a mentally disabled person), G.S. 14-205.3(b) (promoting prostitution of a minor or a mentally disabled person)”. For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(x), effective July 1, 2014, rewrote subdivision (1c); and substituted “Department” for “Division” in subdivision (8).

Session Laws 2015-62, s. 1(b), effective December 1, 2015, substituted “15 years of age or younger and” for “13, 14, or 15 years old where” following “G.S. 14-27.7A (statutory rape or sexual offense of a person who is” in subdivision (5). For applicability, see editor’s note.

Session Laws 2015-181, s. 32, effective December 1, 2015, in subdivision (5), updated statutory references to reflect the recodification of G.S. 14-27.1 et seq. by Session Laws 2015-181. For applicability, see editor’s note.

Session Laws 2017-102, s. 5, effective December 1, 2015, added “G.S. 14-27.24 (first-degree statutory rape),” near the beginning of the first sentence of subdivision (5).

Session Laws 2017-186, s. 2(q), effective December 1, 2017, inserted “and Juvenile Justice” in subdivision (2)a.

Session Laws 2018-47, s. 4(h), rewrote the section. For effective date and applicability, see editor’s note.

Session Laws 2021-138, s. 18(b), added subdivision (3e). For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(ii), rewrote sub-subdivision (2)a. which read “A detention facility operated under the jurisdiction of the Section of Prisons of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.” For effective date and applicability, see editor's note.

Legal Periodicals.

For “Legislative Survey: Criminal Law,” see 22 Campbell L. Rev. 253 (2000).

For article, “North Carolina v. Bryant: Paving the Way for a Comprehensive National Sex Offender Registry,” see 30 N.C. Cent. L. Rev. 75 (2007).

For article, “Sex Crimes and Sexual Miscues: The Need for a Clearer Line Between Forcible Rape and Nonconsensual Sex,” see 42 Wake Forest L. Rev. 1087 (2007).

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For article, “Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina,” see 38 Campbell L. Rev. 151 (2016).

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

CASE NOTES

Reportable Offense. —

Failing to register as a sexual offender was not a status but was a separate crime, and therefore defendant was not subjected to double jeopardy or a violation of the Structured Sentencing Act, G.S. 15A-1340.10 , by including his rape conviction in calculating his prior record level for sentencing; defendant’s conviction of failing to register as a sexual offender was affirmed. State v. Harrison, 165 N.C. App. 332, 598 S.E.2d 261, 2004 N.C. App. LEXIS 1153 (2004).

Trial court properly determined that defendant was subject to satellite-based monitoring for the duration of his life when the offense on which defendant’s recidivism determination was made, taking indecent liberties with a minor, was clearly one described in G.S. 14-208.5 even though it was not reportable because it predated the act; there is nothing in the statutory language that requires that the prior conviction in a recidivism determination must be for a reportable offense, and the code is clear that the prior conviction must be for an offense that is described in the statute defining reportable offenses. State v. Wooten, 194 N.C. App. 524, 669 S.E.2d 749, 2008 N.C. App. LEXIS 2232 (2008), cert. dismissed, 363 N.C. 138 , 676 S.E.2d 308, 2009 N.C. LEXIS 269 (2009).

After defendant’s guilty plea to taking indecent liberties with a child—a reportable conviction, as defined in G.S. 14-208.6(4)—the trial court erred in enrolling defendant in a satellite-based monitoring program because the Department of Corrections assessed defendant as a moderate risk and no evidence supported the court’s findings of a higher level of risk or the requirement of the highest possible level of supervision and monitoring. State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262, 2009 N.C. App. LEXIS 1569 (2009).

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court ordered that when he was released from custody he enroll in satellite-based monitoring for life, the trial court had not followed the required sentencing procedure set forth in G.S. 14-208.40 A because, while the trial court correctly made an initial finding that defendant had been convicted of a reportable offense pursuant to G.S. 14-208.6(4) and (5), at that point, the trial court made no findings that defendant had been convicted of an aggravated offense as required by G.S. 14-208.40 A(b). Instead, the trial court ordered a risk assessment to be completed that afternoon, if possible; the court prematurely ordered the risk assessment and improperly considered sentencing pursuant to G.S. 14-208.40A(c) and (d) simultaneously. State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

Trial court’s order was sufficient to require defendant’s enrollment in lifetime satellite-based monitoring (SBM) because the order fully complied with the requirements set forth in G.S. 14-208.40 A, and defendant was convicted of a reportable conviction as defined by G.S. 14-208.6(4) since he pleaded guilty to two counts of taking indecent liberties with a child in violation of G.S. 14-202.1 ; at sentencing, the State presented to the trial court evidence that defendant was a recidivist, and pursuant to G.S. 14-208.40 A(c), because the trial court found that defendant was a recidivist, it ordered him to enroll in SBM for life. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

Order enrolling defendant in satellite-based monitoring (SBM) at a probation violation hearing was improper because the trial court had already found that defendant was not subject to SBM at a prior hearing based on the same reportable convictions, and a second such hearing violated G.S. 14-208.40 B(a); further, there was no indication in the record that Department of Correction followed the notice requirements of G.S. 14-208.40 B(b), and the trial court failed to make the findings required by G.S. 14-208.40B(c), as a probation violation is not a crime in itself, much less a “reportable conviction” under G.S. 14-208.40B. State v. Clayton, 206 N.C. App. 300, 697 S.E.2d 428, 2010 N.C. App. LEXIS 1451 (2010).

Trial court erred in finding that defendant had been convicted of an offense against a minor where defendant was convicted of taking indecent liberties with a child as G.S. 14-208.6(1m) defined an offense against a minor as requiring a conviction of kidnapping, child abduction, or felonious restraint; however, taking indecent liberties with a child was a reportable conviction under G.S. 14-208.40 A(a) and G.S. 14-208.40 B(a) as it was a sexually violent offense under G.S. 14-208.6(5), and was grounds for imposition of satellite-based monitoring, assuming all other requirements are met. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Order requiring defendant to enroll in satellite-based monitoring under G.S. 14-208.40 B(1m) for the remainder of his life was proper where defendant was convicted of a reportable offense under G.S. 14-208.6(4) as his 2009 convictions for abduction of children under G.S. 14-41 fell under the offense against a minor portion of the reportable conviction definition; the trial court had determined at the sentencing hearing that defendant’s 2009 convictions were reportable offenses and that defendant was not the victims’ parent. State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Because G.S. 14-208.6(1m) explicitly requires that the State show that defendant was not the parent of the minor victim in addition to the fact that defendant was convicted of one of the listed offenses, the statute effectively mandates that the trial court must look beyond the offense of conviction; therefore, in deciding whether a conviction counts as a reportable conviction under the “offense against a minor” provision, the trial court is not restricted to simply considering the elements of the offense for which the defendant was convicted to the extent that the trial court may make a determination as to whether or not the defendant was a parent of the abducted child. State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Trial court did not err in ordering defendant to register as a sex offender because his convictions under former statutes for second-degree rape and second-degree sexual offense were sexually violent offenses and were reportable convictions; the prior version of subsection (5), in which the former statutes were listed, which would have applied, but for the 2015 amendment, applied to prosecutions and convictions under those former offenses. State v. Mack, 277 N.C. App. 505, 860 S.E.2d 271, 2021- NCCOA-215, 2021 N.C. App. LEXIS 219 (2021).

Aggravated Offense. —

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court’s conclusion that defendant committed an aggravated offense was based in part upon defendant’s colloquy at trial, when making a determination pursuant to G.S. 14-208.40 A, the trial court was only to consider the elements of the offense of which defendant was convicted and was not to consider the underlying factual scenario giving rise to the conviction. Neither attempted first-degree sex offense nor taking indecent liberties with a child was an aggravated offense within the meaning of G.S. 14-208.6(1a). State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

Defendant’s conviction for taking indecent liberties with a child, a violation of G.S. 14-202.1 , was not an aggravated offense, as defined by G.S. 14-208.6(1a), and, therefore, the trial court erred in ordering defendant to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 B. State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562, 2010 N.C. App. LEXIS 34 (2010).

Trial court erred in determining that sexual battery under G.S. 14-27.5 A was an aggravated offense for purposes of satellite-based monitoring program under G.S. 14-208.40 B because an aggravated offense required engaging in a sexual act involving vaginal, anal, or oral penetration through the use of force, pursuant to G.S. 14-208.6(1a), and sexual battery did not require vaginal, anal, or oral penetration. State v. Brooks, 204 N.C. App. 193, 693 S.E.2d 204, 2010 N.C. App. LEXIS 822 (2010).

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Offender’s conviction of felonious child abuse under G.S. 14-318.4(a2) may or may not be a conviction which results from the commission of “a sexual act involving penetration,” which is required for an offense to be considered an “aggravated offense” under G.S. 14-208.6(1a), because without a review of the underlying factual scenario giving rise to the conviction, which is prohibited, a trial court cannot know whether an offender was convicted under G.S. 14-318.4(a2) since he committed a sexual act involving penetration; while an “aggravated offense” is an offense in which the offender has “engaged in” a specific type of sexual act, an offender may be convicted of felonious child abuse by the commission of any sexual act as a result of either “committing” any sexual act upon a child less than 16 years of age, or as a result of “allowing the commission” of any sexual act upon such a child, and, thus, by examining the elements of the offense alone, a trial court could not determine whether a person convicted of felonious child abuse by the commission of any sexual act necessarily “engaged in” a specific type of sexual act himself. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Definition of “aggravated offense” in G.S. 14-208.6(1a) is not unconstitutionally vague. State v. McCravey, 203 N.C. App. 627, 692 S.E.2d 409, 2010 N.C. App. LEXIS 722 (2010).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Because statutory rape requires the victim to be 13, 14, or 15 years of age and incapable of consenting, it is an aggravated offense, as defined by G.S. 14-208.6(1a). State v. Sprouse, 217 N.C. App. 230, 719 S.E.2d 234, 2011 N.C. App. LEXIS 2434 (2011).

As the trial court erred it determining that defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to enroll in lifetime satellite-based monitoring under G.S. 14-208.40 A. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Although second-degree sexual offense, G.S. 14-27.5 , is a “sexually violent offense,” it cannot be an “aggravated offense” as defined by G.S. 14-208.6(1a), because vaginal, anal, or oral penetration are not elements of that offense. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

As the trial court erred it determining that Defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to register as a sex offender for life pursuant to G.S. 14-208.23 . State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Trial court did not err by finding that defendant’s second-degree rape conviction constituted an aggravated offense, subjecting him to lifetime satellite-based monitoring, because the elements of second-degree rape under G.S. 14-27.3(a)(2), including the perpetrator’s use of force, were sufficient to constitute an aggravated offense. State v. Talbert, 233 N.C. App. 403, 756 S.E.2d 98, 2014 N.C. App. LEXIS 316 (2014).

In a rape case, a trial court improperly ordered satellite based monitoring based on a finding of an aggravated offense because the crime was committed on September 22, 2001, and the statute was only effective for crimes committed on or after October 1, 2001. State v. Davis, 237 N.C. App. 481, 767 S.E.2d 565, 2014 N.C. App. LEXIS 1210 (2014).

Trial court erred by concluding that attempted second-degree rape was an aggravated offense, and therefore it erred by ordering defendant to submit to lifetime satellite-based monitoring and lifetime sex offender registration. The case was remanded for an order requiring defendant to register as a sex offender for 30 years. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

Trial court erred in ordering registration for life based upon findings defendant was convicted of aggravated offenses, because neither sexual offense with a child nor sexual activity by a substitute parent were listed as aggravated offenses in this section, and without a determination that the program was a reasonable search. State v. Johnson, 253 N.C. App. 337, 801 S.E.2d 123, 2017 N.C. App. LEXIS 314 (2017).

“Offense Against a Minor.” —

Trial court erred in ordering lifetime satellite based monitoring for defendant because it did not follow the procedures in G.S. 14-208.40 A; the finding that defendant had committed offenses against a minor was in error because defendant was not convicted of any of the offenses listed in G.S. 14-208.6(1i), and he was the minor’s adoptive parent. State v. Smith, 201 N.C. App. 681, 687 S.E.2d 525, 2010 N.C. App. LEXIS 24 (2010).

“Recidivist”. —

Imposition of satellite-based monitoring was improper as the trial court did not determine whether defendant was a sexually violated predator or recidivist, and a Department of Correction assessment was not performed. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335, 2010 N.C. App. LEXIS 2362 (2010).

Defendant’s prior conviction for indecent liberties supported the trial court’s finding that defendant was a recidivist for purposes of the satellite-based monitoring statute, G.S. 14-208.40 B, since: (1) a recidivist was a person who had a prior conviction for an offense that was described in G.S. 14-208.6(4); (2) G.S. 14-208.6(4) described a variety of offense classes, including sexually violent offenses; and (3) a sexually violent offense included the offense of taking indecent liberties with a child as described in G.S. 14-202.1 . State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Because the State failed to demonstrate the substantial similarity of defendant’s out-of-state convictions to North Carolina crimes and since the trial court failed to determine that the out-of-state convictions were substantially similar to North Carolina offenses, the trial court’s conclusion that defendant was a recidivist was not supported by competent evidence and remand for resentencing was required. State v. Springle, 244 N.C. App. 760, 781 S.E.2d 518, 2016 N.C. App. LEXIS 55 (2016).

Defendant met the statutory definition of a recidivist, having been convicted of one reportable offense earlier and a second offense later and the fact that the convictions occurred in the same day was not an issue, as they were separate proceedings. State v. Bishop, 255 N.C. App. 767, 805 S.E.2d 367, 2017 N.C. App. LEXIS 806 (2017).

G.S. 14-208.40 A(c) and this section were unconstitutional under the Fourth Amendment as applied to all individuals who, like defendant, were in the third Bowditch category and who were subject to mandatory lifetime satellite-based monitoring based solely on their status as a “recidivist,” and therefore the appellate court erred in limiting its holding to the constitutionality of the program as applied only to defendant. State v. Grady, 372 N.C. 509 , 831 S.E.2d 542, 2019 N.C. LEXIS 799 (2019).

Trial court erred in requiring defendant to enroll in lifetime satellite-based monitoring following his future release from prison because defendant was not a “recidivist,” would not be released from prison for 30 to 43 years, and the State failed to establish that lifetime satellite-based monitoring following defendant’s eventual release from prison was a reasonable search where the State made no attempt to report the level of intrusion as to the information revealed under the satellite-based monitoring program, nor did it establish that the nature and extent of the monitoring that was currently administered, and upon which the present order was based, would remain unchanged by the time that defendant was released from prison. State v. Strudwick, 273 N.C. App. 676, 849 S.E.2d 891, 2020 N.C. App. LEXIS 710 (2020), rev'd, 379 N.C. 94 , 864 S.E.2d 231, 2021- NCSC-127, 2021 N.C. LEXIS 1019 (2021).

Satellite-Based Monitoring. —

Order pursuant G.S. 14-208.40 A(a) that defendant enroll in satellite-based monitoring for ten years after release from prison for sexual crime convictions was error because the Static 99 assessment conducted by the DOC concluded that defendant posed a “low” risk of re-offending, and there were no further findings or additional evidence; however, the state’s petition for writ of certiorari was granted, and the case was remanded to the trial court to enter an appropriate order in light of the recent case holding that second-degree rape was an aggravated offense as defined by the statute. State v. Oxendine, 206 N.C. App. 205, 696 S.E.2d 850, 2010 N.C. App. LEXIS 1450 (2010).

Trial court erred in finding that lifetime satellite-based monitoring was required for defendant and in failing to order that a risk assessment of defendant be performed pursuant to G.S. 14-208.40 A(d) prior to ordering him to enroll in a lifetime satellite-based monitoring program upon release from prison because defendant was convicted for first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1, not attempted rape of a child, pursuant to G.S. 14-27.2 A as found by the trial court; the trial court did not find that defendant was a sexually violent predator or that he was a recidivist, and it found that the offense was not an aggravated offense. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

Trial court erred in failing to follow the procedural framework set out in G.S. 14-208.40 A when it required defendant, who was convicted of violating G.S. 14-27.7(a), to register as a sex offender and enroll in satellite-based monitoring for his natural life because the trial waited to decide whether defendant fell within G.S. 14-208.40 A(b)(i) through (iv) until after it had a chance to review the risk assessment under G.S. 14-208.40A(b)(v); the trial court erred in considering the risk assessment before deciding whether defendant committed an aggravated offense, and it could not determine, based on the elements of the offense alone, that defendant engaged in a sexual act involving penetration. State v. Mann, 214 N.C. App. 155, 715 S.E.2d 213, 2011 N.C. App. LEXIS 1618 (2011).

Neither the North Carolina Department of Correction nor the trial court was responsible for any type of notice regarding defendant’s eligibility for satellite-based monitoring (SBM) because G.S. 14-208.40 A was the applicable statute for determining his eligibility for enrollment in SBM and the time period of his enrollment since when defendant entered an Alford plea to four counts of taking indecent liberties with a minor in violation of G.S. 14-27.7 A(a), he was newly convicted of a reportable conviction. since defendant was placed on probation and, as a condition of his probation, was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40 A, not G.S. 14-208.40B. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Trial court properly exercised subject matter jurisdiction pursuant to G.S. 14-208.40 A and followed the proper hearing procedures in assessing defendant’s eligibility for satellite-based monitoring because the trial court determined that defendant was convicted of a reportable offense, statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a), considered the assessment prepared by the North Carolina Department of Correction and the testimony of the witnesses; the General Assembly devised a separate procedure for determining eligibility for satellite-based monitoring and clearly granted the superior courts subject matter jurisdiction to conduct these determinations pursuant to specific statutory procedures. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Imposition of lifetime satellite-based monitoring was appropriate because defendant was convicted of first-degree rape, which required vaginal penetration; without engaging in an improper examination of the facts giving rise to the crimes for which defendant was convicted, the trial court could have ascertained that both vaginal penetration and force were involved. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Because defendant’s conviction for statutory rape, based upon acts committed in 2005, could not be considered a reportable conviction, defendant was not eligible for satellite-based monitoring for the offense. State v. Kpaeyeh, 246 N.C. App. 694, 784 S.E.2d 582, 2016 N.C. App. LEXIS 363 (2016).

Defendant was convicted of first-degree statutory rape and first-degree statutory sexual offense and those convictions qualified defendant as an aggravated offender; thus, the trial court appropriately ordered lifetime satellite-based monitoring (SBM), and because searches effected by the imposition of lifetime SBM were reasonable as applied to the aggravated offender category, the imposition of SBM did not violate the Fourth Amendment. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Search effected by the imposition of lifetime satellite-based monitoring (SBM) on the category of aggravated offenders is reasonable under the Fourth Amendment; therefore, the SBM statute as applied to aggravated offenders is not unconstitutional. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) is clearly constitutionally reasonable during a defendant’s post-release supervision period because the SBM program serves a legitimate government interest; imposing lifetime SBM upon aggravated offenders serves the General Assembly’s stated purpose by assisting law enforcement agencies in solving crimes, and SBM also serves the State’s interest in protecting the public from aggravated offenders by deterring recidivism. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Search arising from the satellite-based monitoring program for a limited category of aggravated offenders is reasonable under the Fourth Amendment because the purpose of the program to protect the public from sex crimes is of paramount importance, and an aggravated offender’s reasonable expectation of privacy is significantly diminished; the incremental nature of a search providing location information and the method of data collection via an ankle bracelet are more inconvenient than intrusive. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

“Parent.” —

Defendant had to register on the Sexual Offender and Public Protection Registry upon defendant’s conviction of abducting a child (defendant’s stepchild); because defendant was not the biological or adoptive father of the child, defendant was not a “parent” and was required to register pursuant to G.S. 14-208.6(1m). State v. Stanley, 205 N.C. App. 707, 697 S.E.2d 389, 2010 N.C. App. LEXIS 1319 , writ denied, 364 N.C. 440 , 702 S.E.2d 798, 2010 N.C. LEXIS 791 (2010).

Convicted sex offender from another jurisdiction who subsequently moved to North Carolina had actual notice of his lifelong duty to register with South Carolina, which led a reasonable individual to inquire of a duty to register in any state upon relocation. State v. Bryant, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005); State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430, 2009 N.C. App. LEXIS 1179 (2009); State v. Worley, 198 N.C. App. 329, 679 S.E.2d 857, 2009 N.C. App. LEXIS 1167 (2009).

Sexually Violent Offense. —

Trial court erred when it required defendant to register as a sex offender upon his release from prison because neither of the offenses for which defendant was convicted—second degree kidnapping and a crime against nature—was a “sexually violent offense.” State v. Burgess, 216 N.C. App. 54, 715 S.E.2d 867, 2011 N.C. App. LEXIS 2045 (2011).

Defendant qualified for lifetime satellite-based monitoring because he committed a “sexually violent offense” as defined in G.S. 14-208.6(5) by being convicted of taking incident liberties with a child in violation of G.S. 14-202.1 , although the trial court erroneously found that this was an “offense against a minor.” State v. Sims, 216 N.C. App. 168, 720 S.E.2d 398, 2011 N.C. App. LEXIS 2157 (2011).

Effect of Sexually Violent Predator Classification on Sentencing Issues. —

While G.S. 14.208.6(6) provides a definition for a sexually violent predator, nothing in that statute, nor in G.S. 14.208.20 regarding the procedure for determining if an individual is a sexually violent predator, or G.S. 14.208.23 and G.S. 14.208.6A regarding sex offender registration, sets out any sentencing implications that would allow a trial court to extend a defendant’s sentence on a rape charge beyond the presumptive range for that crime; thus, a trial court’s labeling of defendant as a “predator” was not a proper factor in enhancing defendant’s rape conviction sentence. State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697, 2004 N.C. App. LEXIS 1779 (2004), aff'd in part and rev'd in part, 360 N.C. 145 , 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005), dismissed, 379 N.C. 672 , 865 S.E.2d 847, 2021 N.C. LEXIS 1231 (2021).

True Prayer for Judgment Continued Did Not Operate as “Final Judgment.” —

Plaintiff was not required to register as a sex offender because the only conviction requiring registration was entered as a prayer for judgment continued, and a true prayer for judgment continued did not operate as a “final conviction” under G.S. 14-208.6(4) for the purposes of the Sex Offender and Public Protection Registration Program; the conditions imposed upon plaintiff did not appear to be punitive in nature. Walters v. Cooper, 226 N.C. App. 166, 739 S.E.2d 185, 2013 N.C. App. LEXIS 282 , aff'd, 367 N.C. 117 , 748 S.E.2d 144, 2013 N.C. LEXIS 1021 (2013).

Registration as Sex Offender Though Conviction Not Final. —

Defendant was not wrongfully forced to register as a sex offender prematurely because defendant had a reportable conviction for sexual battery and it was proper for the trial court to instruct defendant to register as a sex offender, pursuant to G.S. 14-208.6 , even though defendant’s conviction for sexual battery was not yet final insofar as defendant’s right to direct appeal under N.C. R. App. P. 4(a)(2) had not yet expired. State v. Smith, 230 N.C. App. 387, 749 S.E.2d 507, 2013 N.C. App. LEXIS 1139 (2013), cert. denied, 367 N.C. 532 , 762 S.E.2d 221, 2014 N.C. LEXIS 682 (2014).

Wrongful Registration Claim. —

When a sex offender registrant brought claims against state and county officials for wrongfully being required to register, after the registrant was no longer required to register in Michigan, the registrant’s N.C. Const. art. I, § 19 claims against a state official failed because (1) the registrant sought no removal from Michigan’s registry, and (2) G.S. 14-208.7(a) and 14.208.6(4)(b) gave the official no discretion to remove the registrant from North Carolina’s registry. Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462, 2017 N.C. App. LEXIS 435 (2017).

OPINIONS OF ATTORNEY GENERAL

Who Must Register. — An individual convicted of the federal offense of sexual abuse of a ward is required to register as a sex offender. See opinion of Attorney General to Sheriff Johnny M. Williams, Warren County Sheriff’s Office, 2002 N.C. AG LEXIS 19 (6/24/02).

§ 14-208.6A. Lifetime registration requirements for criminal offenders.

It is the objective of the General Assembly to establish a 30-year registration requirement for persons convicted of certain offenses against minors or sexually violent offenses with an opportunity for those persons to petition in superior court to shorten their registration time period after 10 years of registration. It is the further objective of the General Assembly to establish a more stringent set of registration requirements for recidivists, persons who commit aggravated offenses, and for a subclass of highly dangerous sex offenders who are determined by a sentencing court with the assistance of a board of experts to be sexually violent predators.

To accomplish this objective, there are established two registration programs: the Sex Offender and Public Protection Registration Program and the Sexually Violent Predator Registration Program. Any person convicted of an offense against a minor or of a sexually violent offense as defined by this Article shall register in person as an offender in accordance with Part 2 of this Article. Any person who is a recidivist, who commits an aggravated offense, or who is determined to be a sexually violent predator shall register in person as such in accordance with Part 3 of this Article.

The information obtained under these programs shall be immediately shared with the appropriate local, State, federal, and out-of-state law enforcement officials and penal institutions. In addition, the information designated under G.S. 14-208.10(a) as public record shall be readily available to and accessible by the public. However, the identity of the victim is not public record and shall not be released as a public record.

History. 1997-516, s. 1; 2001-373, s. 2; 2006-247, s. 2(a); 2008-117, s. 7.

Editor’s Note.

Session Laws 2006-247, s. 1(a), provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

The second paragraph, as amended by Session Laws 2006-247, s. 2(a), effective December 1, 2006, is applicable to offenses committed on or after that date.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2006-247, s. 2(a), effective December 1, 2006, and applicable to offenses committed on or after that date, inserted “in person” in the second and third sentences of the second paragraph.

Session Laws 2008-117, s. 7, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “30-year” for “10-year,” and inserted “with an opportunity for those persons to petition in superior court to shorten their registration time period after 10 years of registration” in the first paragraph.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

CASE NOTES

Effect of Sexually Violent Predator Classification on Sentencing Issues. —

While G.S. 14.208.6(6) provides a definition for a sexually violent predator, nothing in that statute, nor in G.S. 14.208.20 regarding the procedure for determining if an individual is a sexually violent predator, or G.S. 14.208.23 and G.S. 14.208.6A regarding sex offender registration, sets out any sentencing implications that would allow a trial court to extend a defendant’s sentence on a rape charge beyond the presumptive range for that crime; thus, a trial court’s labeling of defendant as a “predator” was not a proper factor in enhancing defendant’s rape conviction sentence. State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697, 2004 N.C. App. LEXIS 1779 (2004), aff'd in part and rev'd in part, 360 N.C. 145 , 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005), dismissed, 379 N.C. 672 , 865 S.E.2d 847, 2021 N.C. LEXIS 1231 (2021).

§ 14-208.6B. Registration requirements for juveniles transferred to and convicted in superior court.

A juvenile transferred to superior court pursuant to G.S. 7B-2200 or G.S. 7B-2200 .5 who is convicted of a sexually violent offense or an offense against a minor as defined in G.S. 14-208.6 shall register in person in accordance with this Article just as an adult convicted of the same offense must register.

History. 1997-516, s. 1; 1998-202, s. 13(e); 2006-247, s. 3(a); 2017-57, s. 16D.4(o); 2018-142, s. 23(b).

Editor’s Note.

Session Laws 2006-247, s. 1(a), provides, “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

This section, as amended by Session Laws 2006-247, s. 3(a), effective December 1, 2006, is applicable to offenses committed on or after that date.

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2017-57, s. 16D.4(tt), as amended by Session Laws 2018-142, s. 23(b), provides: “Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions.”

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments.

Session Laws 2006-247, s. 3(a), effective December 1, 2006, and applicable to offenses committed on or after that date, inserted “in person.”

Session Laws 2017-57, s. 16D.4(o), inserted “or G.S. 7B-2200.5 .” For effective date and applicability see editor’s note.

§ 14-208.6C. Discontinuation of registration requirement.

The period of registration required by any of the provisions of this Article shall be discontinued only if the conviction requiring registration is reversed, vacated, or set aside, or if the registrant has been granted an unconditional pardon of innocence for the offense requiring registration.

History. 2001-373, s. 3.

Part 2. Sex Offender and Public Protection Registration Program.

§ 14-208.7. Registration.

  1. A person who is a State resident and who has a reportable conviction shall be required to maintain registration with the sheriff of the county where the person resides. If the person moves to North Carolina from outside this State, the person shall register within three business days of establishing residence in this State, or whenever the person has been present in the State for 15 days, whichever comes first. If the person is a current resident of North Carolina, the person shall register:
    1. Within three business days of release from a penal institution or arrival in a county to live outside a penal institution; or
    2. Immediately upon conviction for a reportable offense where an active term of imprisonment was not imposed. Registration shall be maintained for a period of at least 30 years following the date of initial county registration unless the person, after 10 years of registration, successfully petitions the superior court to shorten his or her registration time period under G.S. 14-208.12 A.

      (a1) A person who is a nonresident student or a nonresident worker and who has a reportable conviction, or is required to register in the person’s state of residency, is required to maintain registration with the sheriff of the county where the person works or attends school. In addition to the information required under subsection (b) of this section, the person shall also provide information regarding the person’s school or place of employment as appropriate and the person’s address in his or her state of residence.

  2. The Department of Public Safety shall provide each sheriff with forms for registering persons as required by this Article. The registration form shall require all of the following:
    1. The person’s full name, each alias, date of birth, sex, race, height, weight, eye color, hair color, drivers license number, and home address.

      (1a) A statement indicating what the person’s name was at the time of the conviction for the offense that requires registration; what alias, if any, the person was using at the time of the conviction of that offense; and the name of the person as it appears on the judgment imposing the sentence on the person for the conviction of the offense.

    2. The type of offense for which the person was convicted, the date of conviction, and the sentence imposed.
    3. A current photograph taken by the sheriff, without charge, at the time of registration.
    4. The person’s fingerprints taken by the sheriff, without charge, at the time of registration.
    5. A statement indicating whether the person is a student or expects to enroll as a student within a year of registering. If the person is a student or expects to enroll as a student within a year of registration, then the registration form shall also require the name and address of the educational institution at which the person is a student or expects to enroll as a student.
    6. A statement indicating whether the person is employed or expects to be employed at an institution of higher education within a year of registering. If the person is employed or expects to be employed at an institution of higher education within a year of registration, then the registration form shall also require the name and address of the educational institution at which the person is or expects to be employed.
    7. Any online identifier that the person uses or intends to use.
  3. When a person registers, the sheriff with whom the person registered shall immediately send the registration information to the Department of Public Safety in a manner determined by the Department of Public Safety. The sheriff shall retain the original registration form and other information collected and shall compile the information that is a public record under this Part into a county registry.
  4. Any person required to register under this section shall report in person at the appropriate sheriff’s office to comply with the registration requirements set out in this section. The sheriff shall provide the registrant with written proof of registration at the time of registration.

History. 1995, c. 545, s. 1; 1997-516, s. 1; 2001-373, s. 4; 2002-147, s. 17; 2006-247, s. 5(a); 2008-117, s. 8; 2008-220, s. 2; 2011-61, s. 1; 2014-100, s. 17.1(r).

Cross References.

As to permanent no contact order against convicted sex offender, see G.S. 15A-1340.50 .

As to permanent civil no-contract order against sext offender on behalf of crime victim, see G.S. 50D-1 et seq.

As to prohibition on registered sex offenders being credentialed as emergency medical services personnel, see G.S. 131E-159(h).

Editor’s Note.

Session Laws 2011-61, s. 9, provides in part: “Sections 1, 2, 3, 4, 6, and 7 of this act become effective December 1, 2011, and applicable to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after December 1, 2011, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to December 1, 2011, and continue to be registered on December 1, 2011. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to December 1, 2011, and continuing to be registered on December 1, 2011, shall not be in violation of the registration, verification, and reporting requirements regarding a person’s name, if the person provides the required information at the first verification of information that occurs on or after December 1, 2011.”

Effect of Amendments.

Session Laws 2006-247, s. 5(a), effective December 1, 2006, and applicable to offenses committed on or after that date, rewrote the last paragraph of subsection (a) and added subsection (d).

Session Laws 2011-61, s. 1, effective December 1, 2011, added subdivision (b)(1a). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” in the introductory paragraph of subsection (b) and twice in subsection (c).

Legal Periodicals.

For article, “North Carolina v. Bryant: Paving the Way for a Comprehensive National Sex Offender Registry,” see 30 N.C. Cent. L. Rev. 75 (2007).

For article, “Holding on to Fundamental Rights Is No Walk in the Park: Challenging the Constitutionality of the Park Ban Upheld in Stanley v. Town of Woodfin,” see 87 N.C.L. Rev. 1979 (2009).

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

For article, “Incorporating Collateral Consequences Into Criminal Procedure,” see 54 Wake Forest L. Rev. 1 (2019).

CASE NOTES

Applicability. —

“Change of address” statute and not the “registration” statute governs the situation when a sex offender who has already complied with the initial registration requirements is later incarcerated and then released. State v. Crockett, 368 N.C. 717 , 782 S.E.2d 878, 2016 N.C. LEXIS 173 (2016).

Home Address for Registration Purposes. —

“Home address” is defined, as it applies to the North Carolina Sex Offender and Public Protection Registration Programs, as a place where a registrant resides and where that registrant receives mail or other communication. This definition of home address is not synonymous with domicile, just as residence and domicile are not convertible terms. State v. Abshire, 192 N.C. App. 594, 666 S.E.2d 657, 2008 N.C. App. LEXIS 1650 (2008), rev'd, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

For purposes of G.S. 14-208.7 , 14-208.9, and 14-208.11 of the North Carolina Sex Offender and Public Protection Registration Program, the North Carolina Supreme Court concludes that the legislature intended the definition of address to carry an ordinary meaning of describing or indicating the location where someone lives, and as such, a sex offender’s address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary. State v. Abshire, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

“Initial County Registration.” —

Trial court erred when it terminated petitioner’s sex offender registration requirement because “initial county registration” in G.S. 14-208.12 A(a) meant initial county registration in North Carolina. Petitioner’s registration in Kentucky did not trigger 10-year period of G.S. 14-208.12 A(a). In re Borden, 216 N.C. App. 579, 718 S.E.2d 683, 2011 N.C. App. LEXIS 2282 (2011).

Sex Offender’s Registration Period Did Not Automatically Terminate. —

Registration period for a convicted sex offender did not automatically terminate in that the registrant’s period of registration was not scheduled to terminate until 2011, and thus, G.S. 14-208.12 A applied to the registrant because, reading G.S. 14-208.7 in pari materia with G.S. 14-208.12 A, the abolition of the automatic termination of registration provision applied to persons for whom the period of registration terminated on or after 1 December 2006. In re Hamilton, 220 N.C. App. 350, 725 S.E.2d 393, 2012 N.C. App. LEXIS 586 (2012).

Convicted sex offender from another jurisdiction who subsequently moved to North Carolina had actual notice of his lifelong duty to register with South Carolina, which led a reasonable individual to inquire of a duty to register in any state upon relocation. State v. Bryant, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005).

Variance in Indictment. —

Because defendant was indicted on an allegation that he failed to register as a sex offender in that he failed to notify the sheriff’s office within three business days of his change of address in accordance with the requirements of this section, the trial court erred in denying defendant’s motion to dismiss where the State’s evidence tended to show that defendant failed to update his registration upon release from a penal institution. State v. Barnett, 239 N.C. App. 101, 768 S.E.2d 327, 2015 N.C. App. LEXIS 15 (2015), rev'd, 368 N.C. 710 , 782 S.E.2d 885, 2016 N.C. LEXIS 180 (2016).

Sufficiency of Indictment. —

It was error to reverse an order denying defendant’s motion to dismiss because the State presented evidence that defendant failed to report in person or provide written notice of his change of address from the facility in which he had been incarcerated to his new residence; once defendant initially registered, any subsequent failure to provide notice of his change of address violated the law and subjected him to prosecution, even if his change of address resulted from a release from incarceration. State v. Barnett, 368 N.C. 710 , 782 S.E.2d 885, 2016 N.C. LEXIS 180 (2016).

True Prayer for Judgment Continued Did Not Operate as “Final Judgment.” —

Plaintiff was not required to register as a sex offender because the only conviction requiring registration was entered as a prayer for judgment continued, and a true prayer for judgment continued did not operate as a “final conviction” under G.S. 14-208.6(4) for the purposes of the Sex Offender and Public Protection Registration Program; the conditions imposed upon plaintiff did not appear to be punitive in nature. Walters v. Cooper, 226 N.C. App. 166, 739 S.E.2d 185, 2013 N.C. App. LEXIS 282 , aff'd, 367 N.C. 117 , 748 S.E.2d 144, 2013 N.C. LEXIS 1021 (2013).

Failure to Register After Serving Consecutive Sentences. —

Defendant was properly convicted of not registering as a sex offender because (1) defendant’s actual release date from consecutive incarceration sentences controlled, under G.S. 15A-1354(b), defendant’s requirement to register as a sex offender, and (2) an amendment to G.S. 14-208.7 requiring defendant to register for 30 years applied retroactively. State v. Surratt, 241 N.C. App. 380, 773 S.E.2d 327, 2015 N.C. App. LEXIS 440 (2015).

Lifetime Registration Improper. —

Trial court erred by concluding that attempted second-degree rape was an aggravated offense, and therefore it erred by ordering defendant to submit to lifetime satellite-based monitoring and lifetime sex offender registration. The case was remanded for an order requiring defendant to register as a sex offender for 30 years. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

Wrongful Registration Claim. —

When a sex offender registrant brought claims against state and county officials for wrongfully being required to register, after the registrant was no longer required to register in Michigan, the registrant’s N.C. Const. art. I, § 19 claims against a state official failed because (1) the registrant sought no removal from Michigan’s registry, and (2) G.S. 14-208.7(a) and 14.208.6(4)(b) gave the official no discretion to remove the registrant from North Carolina’s registry. Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462, 2017 N.C. App. LEXIS 435 (2017).

Petition for Removal from Registry Properly Denied. —

When a trial court found an offender was no threat to public safety, it was not a substantive due process violation to deny the offender’s petition for removal from the sex offender registry because the court also found terminating the offender’s duty to register would not comply with federal standards, and incorporating those standards into G.S. 14-208.12 A(a1)(2) was rationally related to the legitimate governmental interest in protecting public safety. In re Bethea, 253 N.C. App. 659, 806 S.E.2d 677, 2017 N.C. App. LEXIS 813 (2017).

Registration Warranted. —

Because the evidentiary facts reasonably supported the trial court’s ultimate fact that defendant “is a danger to the community,” it was proper to order him to register as a sex offender after he pleaded guilty to secret peeping; defendant took advantage of a close, personal relationship, he used and executed a sophisticated scheme to avoid detection, he deployed a hidden camera and obtained images of the victim over an extended period of time, and he invaded the victim’s privacy. State v. Fuller, 376 N.C. 862 , 855 S.E.2d 260, 2021- NCSC-20, 2021 N.C. LEXIS 175 (2021).

Trial court did not err in ordering defendant to register as a sex offender because his convictions under former statutes for second-degree rape and second-degree sexual offense were sexually violent offenses and were reportable convictions; the prior version of G.S. 14-208.6(5), in which the former statutes were listed, which would have applied, but for the 2015 amendment, applied to prosecutions and convictions under those former offenses. State v. Mack, 277 N.C. App. 505, 860 S.E.2d 271, 2021- NCCOA-215, 2021 N.C. App. LEXIS 219 (2021).

§ 14-208.8. Prerelease notification.

  1. At least 10 days, but not earlier than 30 days, before a person who will be subject to registration under this Article is due to be released from a penal institution, an official of the penal institution shall do all of the following:
    1. Inform the person of the person’s duty to register under this Article and require the person to sign a written statement that the person was so informed or, if the person refuses to sign the statement, certify that the person was so informed.
    2. Obtain the registration information required under G.S. 14-208.7(b)(1), (2), (5), (6), and (7), as well as the address where the person expects to reside upon the person’s release.
    3. Send the Department of Public Safety and the sheriff of the county in which the person expects to reside the information collected in accordance with subdivision (2) of this subsection.
  2. If a person who is subject to registration under this Article does not receive an active term of imprisonment, the court pronouncing sentence shall conduct, at the time of sentencing, the notification procedures specified in subsection (a) of this section.

History. 1995, c. 545, s. 1; 1997-516, s. 1; 2002-147, s. 18; 2008-220, s. 3; 2014-100, s. 17.1(r).

Editor’s Note.

Session Laws 2008-220, s. 12, provides: “Sections 10 and 12 of this act are effective when they become law. Section 11 of this act becomes effective July 1, 2008. The provision in Section 1 of this act amending G.S. 14-208.6(5) becomes effective December 1, 2008, and applies to all persons convicted on or after that date, and to all persons released from a penal institution on or after that date. The remainder of this act becomes effective May 1, 2009, and applies to persons who are required to be registered under Article 27A of Chapter 14 of the General Statutes on or after that date. The requirements related to online identifiers apply to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after May 1, 2009, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continue to be registered on May 1, 2009. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continuing to be registered on May 1, 2009, shall not be in violation of the online identifier requirements if they provide the required information at the first verification of information that occurs on or after May 1, 2009.”

Effect of Amendments.

Session Laws 2008-220, s. 3, effective May 1, 2009, inserted “do all of the following” in the introductory paragraph in subsection (a); inserted “and (7)” in subdivision (a)(2); made minor grammatical changes. For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” in subdivision (a)(3).

Legal Periodicals.

For article, “North Carolina v. Bryant: Paving the Way for a Comprehensive National Sex Offender Registry,” see 30 N.C. Cent. L. Rev. 75 (2007).

CASE NOTES

Oral Notification Sufficient. —

Detective’s testimony that he advised defendant of the registration requirements of G.S. 14-208.11 when defendant initially registered as a sex offender was sufficient to satisfy the notification requirements under G.S. 14-208.8 . State v. White, 162 N.C. App. 183, 590 S.E.2d 448, 2004 N.C. App. LEXIS 111 (2004).

Untimely notification of requirement. —

Although the penal institution failed to inform defendant that he was required to register as a sex offender until five days prior to release from prison, the late notice did not eliminate the registration requirement. State v. Harris, 171 N.C. App. 127, 613 S.E.2d 701, 2005 N.C. App. LEXIS 1169 (2005).

Convicted sex offender from another jurisdiction who subsequently moved to North Carolina had actual notice of his lifelong duty to register with South Carolina, which led a reasonable individual to inquire of a duty to register in any state upon relocation. State v. Bryant, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005).

§ 14-208.8A. Notification requirement for out-of-county employment if temporary residence established.

  1. Notice Required. —  A person required to register under G.S. 14-208.7 shall notify the sheriff of the county with whom the person is registered of the person’s place of employment and temporary residence, which includes a hotel, motel, or other transient lodging place, if the person meets both of the following conditions:
    1. Is employed or carries on a vocation in a county in the State other than the county in which the person is registered for more than 10 business days within a 30-day period, or for an aggregate period exceeding 30 days in a calendar year, on a part-time or full-time basis, with or without compensation or government or educational benefit.
    2. Maintains a temporary residence in that county for more than 10 business days within a 30-day period, or for an aggregate period exceeding 30 days in a calendar year.
  2. Time Period. —  The notice required by subsection (a) of this section shall be provided within 72 hours after the person knows or should know that he or she will be working and maintaining a temporary residence in a county other than the county in which the person resides for more than 10 business days within a 30-day period, or within 10 days after the person knows or should know that he or she will be working and maintaining a temporary residence in a county other than the county in which the person resides for an aggregate period exceeding 30 days in a calendar year.
  3. Notice to Department of Public Safety. —  Upon receiving the notice required under subsection (a) of this section, the sheriff shall immediately forward the information to the Department of Public Safety. The Department of Public Safety shall notify the sheriff of the county where the person is working and maintaining a temporary residence of the person’s place of employment and temporary address in that county.

History. 2006-247, s. 4(a); 2007-484, s. 2; 2014-100, s. 17.1(r).

Editor’s Note.

Session Laws 2006-247, s. 1(a), provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 4(b), made this section effective June 1, 2007, and applicable to offenses committed on or after that date.

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2007-484, s. 2, effective August 30, 2007, deleted “including” following “residence” in subdivision (a)(2).

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” throughout subsection (c).

§ 14-208.9. Change of address; change of academic status or educational employment status; change of online identifier; change of name.

  1. If a person required to register changes address, the person shall report in person and provide written notice of the new address not later than the third business day after the change to the sheriff of the county with whom the person had last registered. If the person moves to another county, the person shall also report in person to the sheriff of the new county and provide written notice of the person’s address not later than the tenth day after the change of address. Upon receipt of the notice, the sheriff shall immediately forward this information to the Department of Public Safety. When the Department of Public Safety receives notice from a sheriff that a person required to register is moving to another county in the State, the Department of Public Safety shall inform the sheriff of the new county of the person’s new residence.
  2. If a person required to register intends to move to another state, the person shall report in person to the sheriff of the county of current residence at least three business days before the date the person intends to leave this State to establish residence in another state or jurisdiction. The person shall provide to the sheriff a written notification that includes all of the following information: the address, municipality, county, and state of intended residence.
    1. If it appears to the sheriff that the record photograph of the sex offender no longer provides a true and accurate likeness of the sex offender, then the sheriff shall take a photograph of the offender to update the registration.
    2. The sheriff shall inform the person that the person must comply with the registration requirements in the new state of residence. The sheriff shall also immediately forward the information included in the notification to the Department of Public Safety, and the Department of Public Safety shall inform the appropriate state official in the state to which the registrant moves of the person’s notification and new address.

      (b1) A person who indicates his or her intent to reside in another state or jurisdiction and later decides to remain in this State shall, within three business days after the date upon which the person indicated he or she would leave this State, report in person to the sheriff’s office to which the person reported the intended change of residence, of his or her intent to remain in this State. If the sheriff is notified by the sexual offender that he or she intends to remain in this State, the sheriff shall promptly report this information to the Department of Public Safety.

  3. If a person required to register changes his or her academic status either by enrolling as a student or by terminating enrollment as a student, then the person shall, within three business days, report in person to the sheriff of the county with whom the person registered and provide written notice of the person’s new status. The written notice shall include the name and address of the institution of higher education at which the student is or was enrolled. The sheriff shall immediately forward this information to the Department of Public Safety.
  4. If a person required to register changes his or her employment status either by obtaining employment at an institution of higher education or by terminating employment at an institution of higher education, then the person shall, within three business days, report in person to the sheriff of the county with whom the person registered and provide written notice of the person’s new status not later than the tenth day after the change to the sheriff of the county with whom the person registered. The written notice shall include the name and address of the institution of higher education at which the person is or was employed. The sheriff shall immediately forward this information to the Department of Public Safety.
  5. If a person required to register changes an online identifier, or obtains a new online identifier, then the person shall, within 10 days, report in person to the sheriff of the county with whom the person registered to provide the new or changed online identifier information to the sheriff. The sheriff shall immediately forward this information to the Department of Public Safety.
  6. If a person required to register changes his or her name pursuant to Chapter 101 of the General Statutes or by any other method, then the person shall, within three business days, report in person to the sheriff of the county with whom the person registered to provide the name change to the sheriff. The sheriff shall immediately forward this information to the Department of Public Safety.

History. 1995, c. 545, s. 1; 1997-516, s. 1; 2001-373, s. 5; 2002-147, s. 19; 2006-247, s. 6(a); 2007-213, s. 9A; 2007-484, s. 42(b); 2008-117, s. 9; 2008-220, ss. 4, 5; 2011-61, ss. 2, 3; 2014-100, s. 17.1(r).

Editor’s Note.

Session Laws 2011-61, s. 9, provides in part: “Sections 1, 2, 3, 4, 6, and 7 of this act become effective December 1, 2011, and applicable to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after December 1, 2011, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to December 1, 2011, and continue to be registered on December 1, 2011. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to December 1, 2011, and continuing to be registered on December 1, 2011, shall not be in violation of the registration, verification, and reporting requirements regarding a person’s name, if the person provides the required information at the first verification of information that occurs on or after December 1, 2011.” Session Laws 2011-61, ss. 2 and 3, added “change of name” in the section catchline; and added subsection (f).

Effect of Amendments.

Session Laws 2006-247, s. 6(a), effective December 1, 2006, and applicable to offenses committed on or after that date, rewrote the section.

Session Laws 2007-213, s. 9A, as amended by 2007-484, s. 42(b), effective July 11, 2007, in subsection (a), inserted the second sentence, and in the fourth sentence, substituted “When” for “If the person moves to another county in this State,” and inserted “receives notice from a sheriff that a person required to register is moving to another county in the State, the Division.”

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” throughout the section.

Legal Periodicals.

For article, “North Carolina v. Bryant: Paving the Way for a Comprehensive National Sex Offender Registry,” see 30 N.C. Cent. L. Rev. 75 (2007).

CASE NOTES

Applicability. —

“Change of address” statute and not the “registration” statute governs the situation when a sex offender who has already complied with the initial registration requirements is later incarcerated and then released. State v. Crockett, 368 N.C. 717 , 782 S.E.2d 878, 2016 N.C. LEXIS 173 (2016).

Home Address for Registration Purposes. —

“Home address” is defined, as it applies to the North Carolina Sex Offender and Public Protection Registration Programs, as a place where a registrant resides and where that registrant receives mail or other communication. This definition of home address is not synonymous with domicile, just as residence and domicile are not convertible terms. State v. Abshire, 192 N.C. App. 594, 666 S.E.2d 657, 2008 N.C. App. LEXIS 1650 (2008), rev'd, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

For purposes of G.S. 14-208.7 , 14-208.9, and 14-208.11 of the North Carolina Sex Offender and Public Protection Registration Program, the North Carolina Supreme Court concludes that the legislature intended the definition of address to carry an ordinary meaning of describing or indicating the location where someone lives, and as such, a sex offender’s address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary. State v. Abshire, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

Sex offender registration statutes, G.S. 14-208.9(a) and G.S. 14-208.11(a)(2), operate on the premise that everyone does, at all times, have an address of some sort, even if it is a homeless shelter, a location under a bridge, or some similar place; the contention that there are occasionally times when a registered sex offender lacks a reportable address for purposes of G.S. 14-208.9(a) and G.S. 14-208.11(a)(2) is rejected. State v. Worley, 198 N.C. App. 329, 679 S.E.2d 857, 2009 N.C. App. LEXIS 1167 (2009).

Evidence supported defendant’s G.S. 14-208.9(a) and 14-208.11(a)(2) conviction as defendant was evicted, and the locks were changed on the public housing apartment defendant was living in, and defendant did not timely report the new address; defendant had an address, even if it was temporary, after the locks were changed, which defendant was required to report. State v. Worley, 198 N.C. App. 329, 679 S.E.2d 857, 2009 N.C. App. LEXIS 1167 (2009).

State provided sufficient evidence that defendant changed his address to withstand defendant’s motion to dismiss a charge of willfully failing to comply with the sex offender registration reporting requirements, G.S. 14-208.9(a) and G.S. 14-208.11(a)((2), because defendant’s last reported address was at his father’s home, the complainant testified that defendant was living in his girlfriend’s apartment, and defendant’s father told police that defendant was not residing with him but instead was residing with his girlfriend; the complainant lived in the same building as defendant’s girlfriend and regularly observed or interacted with defendant.. State v. Fox, 216 N.C. App. 153, 716 S.E.2d 261, 2011 N.C. App. LEXIS 2144 (2011).

Trial court properly denied the defendant’s motion to suppress statements the defendant made to the police because, even assuming that the statutory language was ambiguous, the defendant had full notice of what was required of the defendant; a person of reasonable intelligence would understand that a sex offender was required to inform the local sheriff’s office of the physical location where he resided within three business days of a change, and the State was simply required to show that the defendant changed his address. State v. McFarland, 234 N.C. App. 274, 758 S.E.2d 457, 2014 N.C. App. LEXIS 594 (2014).

Failure to Register Following Period of Incarceration. —

Trial court did not err in denying defendant’s motion to dismiss, as the State presented evidence that defendant registered, became incarcerated, and then released, but never registered his address following his release, as required by this section. State v. Reynolds, 253 N.C. App. 359, 800 S.E.2d 702, 2017 N.C. App. LEXIS 313 (2017), cert. dismissed, 371 N.C. 475 , 818 S.E.2d 284, 2018 N.C. LEXIS 836 (2018).

Double Jeopardy Not Shown. —

Defendant could have his post-release supervision revoked because defendant left his residence without notifying his post-release officer and be prosecuted for the offense of failing to notify the sheriff of defendant’s change of address as a sex offender under G.S. 14-208.9 and in violation of G.S. 14-208.11 without defendant’s double jeopardy rights being violated. Revocation of post-release supervision was not a criminal proceeding and the revocation related to defendant’s conviction for sex offenses rather than the State’s prosecution of defendant for failing to notify the sheriff of defendant’s change of address. State v. Sparks, 362 N.C. 181 , 657 S.E.2d 655, 2008 N.C. LEXIS 149 (2008).

Form of Notice. —

Reading G.S. 14-208.11(a)(2) in pari materia with G.S. 14-208.9 , a sex offender required to register his address with the sheriff who fails to notify the sheriff with whom he last registered of a change of address in writing may be found guilty of a class F felony. State v. Holmes, 149 N.C. App. 572, 562 S.E.2d 26, 2002 N.C. App. LEXIS 285 (2002).

Email Insufficient Notice. —

Email defendant sent to an administrative assistant at the sheriff’s office stating he was going to live at a specified address was not sufficient to constitute “registration” as statutorily prescribed, and, even if it were, the address provided was not a valid address, as defendant could not live at the ministry, which did not permit him to sleep there or keep personal belongings there. State v. Crockett, 238 N.C. App. 96, 767 S.E.2d 78, 2014 N.C. App. LEXIS 1283 (2014), aff'd, 368 N.C. 717 , 782 S.E.2d 878, 2016 N.C. LEXIS 173 (2016).

Motion to Dismiss Properly Denied. —

Denial of defendant’s motion to dismiss a failure to register as a sex offender charge was proper as defendant’s confession permitted the jury to infer that defendant had not lived at the registered address within 10 days of his arrest, and there was evidence that on June 2, 1998, defendant was released from a prison sentence imposed for taking indecent liberties with a child. State v. Wise, 178 N.C. App. 154, 630 S.E.2d 732, 2006 N.C. App. LEXIS 1293 (2006).

Denial of defendant’s motion to dismiss was appropriate because the evidence supported a reasonable conclusion that not only did defendant maintain a permanent domicile in one county, but that defendant also temporarily resided at the home of defendant’s former spouse in another county as eyewitnesses testified that defendant was often at the home all week and one eyewitness testified that defendant engaged in activities, such as mowing the lawn, that only someone living at the home would do. State v. Pierce, 238 N.C. App. 141, 766 S.E.2d 854, 2014 N.C. App. LEXIS 1278 (2014).

Sufficiency of Indictment. —

Because the indictment’s language was sufficient to put defendant on notice that he was indicted for failing to register defendant’s address with the sheriff’s office in Wilkes County, North Carolina, any conflict in the indictment did not constitute a fatal variance. State v. Pierce, 238 N.C. App. 141, 766 S.E.2d 854, 2014 N.C. App. LEXIS 1278 (2014).

Indictment’s omission of the word “business” from the language alleging failure to notify the sheriff of his new address within three days did not render the indictment fatally flawed, as defendant had sufficient notice of the charge against him and was not prejudiced from preparing a defense. State v. James, 242 N.C. App. 188, 774 S.E.2d 871, 2015 N.C. App. LEXIS 586 (2015), aff'd, 368 N.C. 728 , 782 S.E.2d 509, 2016 N.C. LEXIS 181 (2016).

Defendant was properly convicted of failure to register as a sex offender because, while the better practice would have been for the indictment to have alleged that defendant failed to report defendant’s change of address in writing and within three business days, the indictment was sufficient to confer subject matter jurisdiction upon the trial court. State v. McLamb, 243 N.C. App. 486, 777 S.E.2d 150, 2015 N.C. App. LEXIS 825 (2015).

Defendant’s indictment included the critical language found in the statute, alleging that he failed to meet his obligation to report, and this language was consistent with that found in the charging statute and provided defendant sufficient notice to prepare a defense; additional detail about the reporting requirement was neither needed nor required, and thus the indictment was valid and conferred jurisdiction upon the trial court. State v. Williams, 368 N.C. 620 , 781 S.E.2d 268, 2016 N.C. LEXIS 31 (2016).

It was error to reverse an order denying defendant’s motion to dismiss because the State presented evidence that defendant failed to report in person or provide written notice of his change of address from the facility in which he had been incarcerated to his new residence; once defendant initially registered, any subsequent failure to provide notice of his change of address violated the law and subjected him to prosecution, even if his change of address resulted from a release from incarceration. State v. Barnett, 368 N.C. 710 , 782 S.E.2d 885, 2016 N.C. LEXIS 180 (2016).

Trial court properly denied defendant’s motion to dismiss because the State’s evidence was sufficient for the jury to find that defendant had willfully changed his address without providing written notice to the sheriff’s department; though the text of the statute focuses on in-state changes of address, there is nothing in the plain text limiting its operation or effect to in-state address changes, or precluding its application to out-of-state address changes. State v. Crockett, 368 N.C. 717 , 782 S.E.2d 878, 2016 N.C. LEXIS 173 (2016).

There is no need to depart from the plain text of the statute because giving effect to that plain text is not likely to lead to absurd results; when a registered offender plans to move out of state, appearing in person at the sheriff’s department and providing written notification three days before he intends to leave would appear to satisfy the requirement in subsection (a) that he or she appear in person and provide written notice not later than three business days after the address change. State v. Crockett, 368 N.C. 717 , 782 S.E.2d 878, 2016 N.C. LEXIS 173 (2016).

Trial court properly denied defendant’s motion to dismiss because the State provided sufficient evidence that defendant willfully failed to register as a sex offender as alleged in the indictment; a jury could conclude that defendant willfully failed to provide written notice that he had changed his address because he previously filled out registration paperwork, which signaled that he was aware of his duty to register, and he did not provide in-person or written notice of where he would reside. State v. Crockett, 368 N.C. 717 , 782 S.E.2d 878, 2016 N.C. LEXIS 173 (2016).

Insufficient Indictment. —

Indictment charging defendant, a convicted sex offender, with violating G.S. 14-208.9(a), for failing to notify the sheriff’s office of change of address as required for a registered sex offender, was insufficient to confer subject matter jurisdiction upon the trial court because the indictment failed to specify that defendant was “a person required to register,” an essential element of the charged offense, G.S. 15A-924(a)(5). State v. Barnett, 223 N.C. App. 65, 733 S.E.2d 95, 2012 N.C. App. LEXIS 1137 (2012).

Because defendant was indicted on an allegation that he failed to register as a sex offender in that he failed to notify the sheriff’s office within three business days of his change of address in accordance with the requirements of this section, the trial court erred in denying defendant’s motion to dismiss where the State’s evidence tended to show that defendant failed to update his registration upon release from a penal institution. State v. Barnett, 239 N.C. App. 101, 768 S.E.2d 327, 2015 N.C. App. LEXIS 15 (2015), rev'd, 368 N.C. 710 , 782 S.E.2d 885, 2016 N.C. LEXIS 180 (2016).

§ 14-208.9A. Verification of registration information.

  1. The information in the county registry shall be verified semiannually for each registrant as follows:
    1. Every year on the anniversary of a person’s initial registration date, and again six months after that date, the Department of Public Safety shall mail a nonforwardable verification form to the last reported address of the person.
    2. The person shall return the verification form in person to the sheriff within three business days after the receipt of the form.
    3. The verification form shall be signed by the person and shall indicate the following:
      1. Whether the person still resides at the address last reported to the sheriff. If the person has a different address, then the person shall indicate that fact and the new address.
      2. Whether the person still uses or intends to use any online identifiers last reported to the sheriff. If the person has any new or different online identifiers, then the person shall provide those online identifiers to the sheriff.
      3. Whether the person still uses or intends to use the name under which the person registered and last reported to the sheriff. If the person has any new or different name, then the person shall provide that name to the sheriff. (3a) If it appears to the sheriff that the record photograph of the sex offender no longer provides a true and accurate likeness of the sex offender, then the sheriff shall take a photograph of the offender to include with the verification form.
    4. If the person fails to return the verification form in person to the sheriff within three business days after receipt of the form, the person is subject to the penalties provided in G.S. 14-208.11 . If the person fails to report in person and provide the written verification as provided by this section, the sheriff shall make a reasonable attempt to verify that the person is residing at the registered address. If the person cannot be found at the registered address and has failed to report a change of address, the person is subject to the penalties provided in G.S. 14-208.11 , unless the person reports in person to the sheriff and proves that the person has not changed his or her residential address.
  2. Additional Verification May Be Required. —  During the period that an offender is required to be registered under this Article, the sheriff is authorized to attempt to verify that the offender continues to reside at the address last registered by the offender.
  3. Additional Photograph May Be Required. —  If it appears to the sheriff that the current photograph of the sex offender no longer provides a true and accurate likeness of the sex offender, upon in-person notice from the sheriff, the sex offender shall allow the sheriff to take another photograph of the sex offender at the time of the sheriff’s request. If requested by the sheriff, the sex offender shall appear in person at the sheriff’s office during normal business hours within three business days of being requested to do so and shall allow the sheriff to take another photograph of the sex offender. A person who willfully fails to comply with this subsection is guilty of a Class 1 misdemeanor.

History. 1997-516, s. 1; 2006-247, s. 7(a); 2008-117, s. 10; 2008-220, s. 6; 2011-61, s. 4; 2014-100, s. 17.1(r).

Editor’s Note.

Session Laws 2011-61, s. 9, provides in part: “Sections 1, 2, 3, 4, 6, and 7 of this act become effective December 1, 2011, and applicable to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after December 1, 2011, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to December 1, 2011, and continue to be registered on December 1, 2011. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to December 1, 2011, and continuing to be registered on December 1, 2011, shall not be in violation of the registration, verification, and reporting requirements regarding a person’s name, if the person provides the required information at the first verification of information that occurs on or after December 1, 2011.” Session Laws 2011-61, s. 4, added subdivision (3)c.

Effect of Amendments.

Session Laws 2008-117, s. 10, effective December 1, 2008 and applicable to offenses committed on or after that date, substituted “three business days” for “10 days” in subdivisions (a)(2) and (a)(4); and substituted “three business days” for “72 hours” in subsection (c).

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” in subdivision (a)(1).

CASE NOTES

Home Address for Registration Purposes. —

“Home address” is defined, as it applies to the North Carolina Sex Offender and Public Protection Registration Programs, as a place where a registrant resides and where that registrant receives mail or other communication. This definition of home address is not synonymous with domicile, just as residence and domicile are not convertible terms. State v. Abshire, 192 N.C. App. 594, 666 S.E.2d 657, 2008 N.C. App. LEXIS 1650 (2008), rev'd, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

Instruction on Verification Date. —

Trial court did not plainly err in failing to instruct the jury about the date the verification was required since the only rational reading of G.S. 14-208.11 was that it criminalized the provision of false or misleading information on forms submitted pursuant to North Carolina’s Sex Offender Registration Act, G.S. 14-208.5 et seq., regardless of when the forms were submitted. State v. Pressley, 235 N.C. App. 613, 762 S.E.2d 374, 2014 N.C. App. LEXIS 890 (2014).

Evidence Insufficient for Conviction. —

It was error to deny defendant’s motion to dismiss a charge of falsifying information under G.S. 14-208.11(a)(4) and G.S. 14-208.9 A(a)(4) because there was no evidence that defendant provided false or misleading information on a verification form, despite defendant’s oral misrepresentation to a sheriff’s deputy. State v. Surratt, 241 N.C. App. 380, 773 S.E.2d 327, 2015 N.C. App. LEXIS 440 (2015).

State failed to present sufficient evidence that defendant actually received the verification notice or willfully failed to return the notice, as the return receipt for the certified mailing was signed by another person, who later testified that she never remembered signing for it and did not discover the notice until months later, thereby providing defendant with an excuse for failure to return the notice in a timely manner. State v. Moore, 240 N.C. App. 465, 770 S.E.2d 131, 2015 N.C. App. LEXIS 276 (2015).

§ 14-208.10. Registration information is public record; access to registration information.

  1. The following information regarding a person required to register under this Article is public record and shall be available for public inspection: name, sex, address, physical description, picture, conviction date, offense for which registration was required, the sentence imposed as a result of the conviction, and registration status. The information obtained under G.S. 14-208.22 regarding a person’s medical records or documentation of treatment for the person’s mental abnormality or personality disorder shall not be a part of the public record.The sheriff shall release any other relevant information that is necessary to protect the public concerning a specific person, but shall not release the identity of the victim of the offense that required registration under this Article.
  2. Any person may obtain a copy of an individual’s registration form, a part of the county registry, or all of the county registry, by submitting a written request for the information to the sheriff. However, the identity of the victim of an offense that requires registration under this Article shall not be released. The sheriff may charge a reasonable fee for duplicating costs and for mailing costs when appropriate.

History. 1995, c. 545, s. 1; 1997-516, s. 1.

Legal Periodicals.

For article, “North Carolina v. Bryant: Paving the Way for a Comprehensive National Sex Offender Registry,” see 30 N.C. Cent. L. Rev. 75 (2007).

CASE NOTES

Convicted sex offender from another jurisdiction who subsequently moved to North Carolina had actual notice of his lifelong duty to register with South Carolina, which led a reasonable individual to inquire of a duty to register in any state upon relocation. State v. Bryant, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005).

§ 14-208.11. Failure to register; falsification of verification notice; failure to return verification form; order for arrest.

  1. A person required by this Article to register who willfully does any of the following is guilty of a Class F felony:
    1. Fails to register as required by this Article, including failure to register with the sheriff in the county designated by the person, pursuant to G.S. 14-208.8 , as their expected county of residence.
    2. Fails to notify the last registering sheriff of a change of address as required by this Article.
    3. Fails to return a verification notice as required under G.S. 14-208.9 A.
    4. Forges or submits under false pretenses the information or verification notices required under this Article.
    5. Fails to inform the registering sheriff of enrollment or termination of enrollment as a student.
    6. Fails to inform the registering sheriff of employment at an institution of higher education or termination of employment at an institution of higher education.
    7. Fails to report in person to the sheriff’s office as required by G.S. 14-208.7 , 14-208.9, and 14-208.9A.
    8. Reports his or her intent to reside in another state or jurisdiction but remains in this State without reporting to the sheriff in the manner required by G.S. 14-208.9 .
    9. Fails to notify the registering sheriff of out-of-county employment if temporary residence is established as required under G.S. 14-208.8 A.
    10. Fails to inform the registering sheriff of any new or changes to existing online identifiers that the person uses or intends to use. (a1) If a person commits a violation of subsection (a) of this section, the probation officer, parole officer, or any other law enforcement officer who is aware of the violation shall immediately arrest the person in accordance with G.S. 15A-401 , or seek an order for the person’s arrest in accordance with G.S. 15A-305 .

      (a2) A person arrested pursuant to subsection (a1) of this section shall be subject to the jurisdiction of the prosecutorial and judicial district that includes the sheriff’s office in the county where the person failed to register, pursuant to this Article. If the arrest is made outside of the applicable prosecutorial district, the person shall be transferred to the custody of the sheriff of the county where the person failed to register and all further criminal and judicial proceedings shall be held in that county.

  2. Before a person convicted of a violation of this Article is due to be released from a penal institution, an official of the penal institution shall conduct the prerelease notification procedures specified under G.S. 14-208.8(a)(2) and (3). If upon a conviction for a violation of this Article, no active term of imprisonment is imposed, the court pronouncing sentence shall, at the time of sentencing, conduct the notification procedures specified under G.S. 14-208.8(a)(2) and (3).
  3. A person who is unable to meet the registration or verification requirements of this Article shall be deemed to have complied with its requirements if:
    1. The person is incarcerated in, or is in the custody of, a local, State, private, or federal correctional facility,
    2. The person notifies the official in charge of the facility of their status as a person with a legal obligation or requirement under this Article and
    3. The person meets the registration or verification requirements of this Article no later than 10 days after release from confinement or custody.

History. 1995, c. 545, s. 1; 1997-516, s. 1; 2002-147, s. 20; 2006-247, ss. 8(a), 8(b); 2008-220, s. 7; 2013-205, s. 1.

Effect of Amendments.

Session Laws 2006-247, s. 8(a), effective December 1, 2006, and applicable to offenses committed on or after that date, inserted “willfully” in the introductory paragraph of subsection (a), added “as required by this Article” at the end of subdivision (a)(1), added subdivisions (a)(7) and (a)(8); and added subsection (c); and, s. 8(b), effective June 1, 2007, and applicable to offenses committed on or after that date, added subdivision (a)(9).

Session Laws 2013-205, s. 1, effective June 26, 2013, added “including failure to register with the sheriff in the county designated by the person, pursuant to G.S. 14-208.8 , as their expected county of residence” at the end of subdivision (a)(1); and added subsection (a2).

Legal Periodicals.

For article, “North Carolina v. Bryant: Paving the Way for a Comprehensive National Sex Offender Registry,” see 30 N.C. Cent. L. Rev. 75 (2007).

CASE NOTES

This statute is unconstitutional as applied to an adjudicated incompetent, because it fails to provide him with sufficient notice or knowledge to overcome due process requirements. State v. Young, 140 N.C. App. 1, 535 S.E.2d 380, 2000 N.C. App. LEXIS 1042 (2000).

This statute is unconstitutional as applied to a person convicted in another state who has moved to North Carolina and lacks notice of his duty to register in North Carolina, because the statute provides neither actual or constructive notice of the duty to register. State v. Bryant, 163 N.C. App. 478, 594 S.E.2d 202, 2004 N.C. App. LEXIS 403 (2004), rev'd, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005).

This statute is facially constitutional as applied to a convicted sex offender from another jurisdiction, who subsequently moved to North Carolina, because such a defendant has actual notice of his or her lifelong duty to register as a result of his or her out-of-state conviction, which provides a reasonable individual to inquire of a duty to register in any state upon relocation. State v. Bryant, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005).

Double Jeopardy Violation Shown. —

Because in the instant case G.S. 14-208.11(a)(2) and (a)(7) had the same elements, one of defendant’s convictions had to be vacated for violation of double jeopardy. State v. Reynolds, 253 N.C. App. 359, 800 S.E.2d 702, 2017 N.C. App. LEXIS 313 (2017), cert. dismissed, 371 N.C. 475 , 818 S.E.2d 284, 2018 N.C. LEXIS 836 (2018).

No Double Jeopardy Violation. —

Failing to register as a sexual offender was not a status but was a separate crime, and therefore defendant was not subjected to double jeopardy or a violation of the Structured Sentencing Act, G.S. 15A-1340.10 , by including his rape conviction in calculating his prior record level for sentencing; defendant’s conviction of failing to register as a sexual offender was affirmed. State v. Harrison, 165 N.C. App. 332, 598 S.E.2d 261, 2004 N.C. App. LEXIS 1153 (2004).

Defendant could have his post-release supervision revoked because he left his residence without notifying his post-release officer and be prosecuted for the offense of failing to notify the sheriff of his change of address as a sex offender under G.S. 14-208.9 and in violation of G.S. 14-208.11 without defendant’s double jeopardy rights being violated. Revocation of post-release supervision was not a criminal proceeding and the revocation related to defendant’s conviction for sex offenses rather than the State’s prosecution of defendant for failing to notify the sheriff of defendant’s change of address. State v. Sparks, 362 N.C. 181 , 657 S.E.2d 655, 2008 N.C. LEXIS 149 (2008).

Elements of Violation. —

To meet its burden under G.S. 14-208.11(a)(2) of proving a sex offender’s felonious failure to notify a sheriff of a change in his address, the State must prove that (1) defendant is a sex offender who is required to register; and (2) defendant failed to notify the last registering sheriff of a change of address in writing. State v. Holmes, 149 N.C. App. 572, 562 S.E.2d 26, 2002 N.C. App. LEXIS 285 (2002).

Knowledge and Intent Not Required. —

As a matter of statutory construction, the State was not required, under G.S. 14-208.11 , to prove defendant’s knowledge or intent to convict him of failure to comply with the sex offender registration requirements. State v. White, 162 N.C. App. 183, 590 S.E.2d 448, 2004 N.C. App. LEXIS 111 (2004).

Sufficiency of Indictment. —

Because the indictment’s language was sufficient to put defendant on notice that he was indicted for failing to register defendant’s address with the sheriff’s office in Wilkes County, North Carolina, any conflict in the indictment did not constitute a fatal variance. State v. Pierce, 238 N.C. App. 141, 766 S.E.2d 854, 2014 N.C. App. LEXIS 1278 (2014).

Defendant’s indictment was valid as a matter of law and sufficient to confer subject matter jurisdiction upon the trial court because the indictment sufficiently alleged that defendant was a person required to register as a sex offender, changed his address, and failed to notify the appropriate agency within three business days after moving. State v. Leaks, 240 N.C. App. 573, 771 S.E.2d 795, 2015 N.C. App. LEXIS 331 (2015).

Indictment’s omission of the word “business” from the language alleging failure to notify the sheriff of his new address within three days did not render the indictment fatally flawed, as defendant had sufficient notice of the charge against him and was not prejudiced from preparing a defense. State v. James, 242 N.C. App. 188, 774 S.E.2d 871, 2015 N.C. App. LEXIS 586 (2015), aff'd, 368 N.C. 728 , 782 S.E.2d 509, 2016 N.C. LEXIS 181 (2016).

Defendant’s indictment included the critical language found in the statute, alleging that he failed to meet his obligation to report, and this language was consistent with that found in the charging statute and provided defendant sufficient notice to prepare a defense; additional detail about the reporting requirement was neither needed nor required, and thus the indictment was valid and conferred jurisdiction upon the trial court. State v. Williams, 368 N.C. 620 , 781 S.E.2d 268, 2016 N.C. LEXIS 31 (2016).

It was error to reverse an order denying defendant’s motion to dismiss because the State presented evidence that defendant failed to report in person or provide written notice of his change of address from the facility in which he had been incarcerated to his new residence; once defendant initially registered, any subsequent failure to provide notice of his change of address violated the law and subjected him to prosecution, even if his change of address resulted from a release from incarceration. State v. Barnett, 368 N.C. 710 , 782 S.E.2d 885, 2016 N.C. LEXIS 180 (2016).

Trial court properly denied defendant’s motion to dismiss because the State’s evidence was sufficient for the jury to find that defendant had willfully changed his address without providing written notice to the sheriff’s department. State v. Crockett, 368 N.C. 717 , 782 S.E.2d 878, 2016 N.C. LEXIS 173 (2016).

Trial court properly denied defendant’s motion to dismiss because the State provided sufficient evidence that defendant willfully failed to register as a sex offender as alleged in the indictment; a jury could conclude that defendant willfully failed to provide written notice that he had changed his address because he previously filled out registration paperwork, which signaled that he was aware of his duty to register, and he did not provide in-person or written notice of where he would reside. State v. Crockett, 368 N.C. 717 , 782 S.E.2d 878, 2016 N.C. LEXIS 173 (2016).

Amendment of Indictment. —

Trial court did not err in allowing the State of North Carolina to amend the indictment and expand the dates of offense because the amendment of the dates of offense did not substantially alter the charge against defendant in that the specific date that defendant moved to Wilkes County, North Carolina was not an essential element of the crime. Moreover, defendant failed to show that defendant detrimentally relied on the original date of offense and was substantially prejudiced by the amendment. State v. Pierce, 238 N.C. App. 141, 766 S.E.2d 854, 2014 N.C. App. LEXIS 1278 (2014).

Required Proof from State. —

Trial court properly denied defendant’s motion to suppress statements he made to the police because, even assuming that the statutory language was ambiguous, defendant had full notice of what was required of him; a person of reasonable intelligence would understand that a sex offender was required to inform the local sheriff’s office of the physical location where he resided within three business days of a change, and the State was simply required to show that defendant changed his address. State v. McFarland, 234 N.C. App. 274, 758 S.E.2d 457, 2014 N.C. App. LEXIS 594 (2014).

Form of Notice. —

Reading G.S. 14-208.11(a)(2) in pari materia with G.S. 14-208.9 , a sex offender required to register his address with the sheriff who fails to notify the sheriff with whom he last registered of a change of address in writing may be found guilty of a class F felony. State v. Holmes, 149 N.C. App. 572, 562 S.E.2d 26, 2002 N.C. App. LEXIS 285 (2002).

Defendant did not appear to have made any good faith effort to conform his conduct to the law — even to those laws with which he unquestionably had the knowledge and ability to comply, such as G.S. 14-208.11 ; therefore, defendant’s indictment should not be dismissed due to a perceived deficiency of fair notice based on North Carolina’s lack of Sex Offender Registration and Notification Act implementation. United States v. David, 2008 U.S. Dist. LEXIS 38613 (W.D.N.C. May 9, 2008).

Oral Notification by Detective Sufficient. —

Detective’s testimony that he advised defendant of the registration requirements of G.S. 14-208.11 when defendant initially registered as a sex offender was sufficient to satisfy due process. State v. White, 162 N.C. App. 183, 590 S.E.2d 448, 2004 N.C. App. LEXIS 111 (2004).

Untimely Notice Did Not Mandate Dismissal of Charges. —

Failure to inform defendant that he was required to register as a sex offender until five days prior to release from prison did not require dismissal of charge for failure to register; the late notice was not fatal as defendant was not prejudiced. State v. Harris, 171 N.C. App. 127, 613 S.E.2d 701, 2005 N.C. App. LEXIS 1169 (2005).

Motion to Dismiss Properly Denied. —

Denial of defendant’s motion to dismiss a failure to register as a sex offender charge was proper as defendant’s confession permitted the jury to infer that defendant had not lived at the registered address within 10 days of his arrest, and there was evidence that on June 2, 1998, defendant was released from a prison sentence imposed for taking indecent liberties with a child. State v. Wise, 178 N.C. App. 154, 630 S.E.2d 732, 2006 N.C. App. LEXIS 1293 (2006).

Denial of defendant’s motion to dismiss was proper, because defendant’s conviction for violating G.S. 14-208.11(a)(2) was supported by evidence showing that defendant moved from defendant’s old address, not intending to return, and knew defendant only had 10 days to notify the sheriff’s department, but defendant did not notify the sheriff’s department of the change of address until at least a month later, more than 10 days after moving to a new location. State v. Worley, 677 S.E.2d 540, 2009 N.C. App. LEXIS 757 (N.C. Ct. App.), sub. op., 198 N.C. App. 329, 679 S.E.2d 857, 2009 N.C. App. LEXIS 1167 (2009).

Defendant’s motion to dismiss the charges under G.S. 14-208.11 based on the state’s failure to prove that submission of a verification form was required by statute was properly denied when the only rational reading of G.S. 14-208.11 was that it criminalized the provision of false or misleading information on forms submitted pursuant to North Carolina’s Sex Offender Registration Act, G.S. 14-208.5 et seq., regardless of when the forms were submitted. State v. Pressley, 235 N.C. App. 613, 762 S.E.2d 374, 2014 N.C. App. LEXIS 890 (2014).

Denial of defendant’s motion to dismiss was appropriate because the evidence supported a reasonable conclusion that not only did defendant maintain a permanent domicile in one county, but that defendant also temporarily resided at the home of defendant’s former spouse in another county as eyewitnesses testified that defendant was often at the home all week and one eyewitness testified that defendant engaged in activities, such as mowing the lawn, that only someone living at the home would do. State v. Pierce, 238 N.C. App. 141, 766 S.E.2d 854, 2014 N.C. App. LEXIS 1278 (2014).

False Address Given. —

Evidence was sufficient to show that defendant submitted information under false pretenses to the sexual offender registry when he registered his address on release from prison as being that of his estranged wife when he actually lived in another county with his sister. State v. Parks, 147 N.C. App. 485, 556 S.E.2d 20, 2001 N.C. App. LEXIS 1184 (2001).

Sex offender registration statutes, G.S. 14-208.9(a) and G.S. 14-208.11(a)(2), operate on the premise that everyone does, at all times, have an address of some sort, even if it is a homeless shelter, a location under a bridge, or some similar place; the contention that there are occasionally times when a registered sex offender lacks a reportable address for purposes of G.S. 14-208.9(a) and G.S. 14-208.11(a)(2) is rejected. State v. Worley, 198 N.C. App. 329, 679 S.E.2d 857, 2009 N.C. App. LEXIS 1167 (2009).

Providing False or Misleading Information. —

Only rational reading of G.S. 14-208.11 is that it criminalizes the provision of false or misleading information on forms submitted pursuant to North Carolina’s Sex Offender Registration Act, G.S. 14-208.5 et seq., regardless of when these forms are submitted. The schedule of deadlines set out in G.S. 14-208.9 A is simply designed to provide a reliable timetable for the filing of verification forms; the inclusion of this schedule in G.S. 14-208.9 A does not excuse the provision of false information on verification forms submitted on other dates. State v. Pressley, 235 N.C. App. 613, 762 S.E.2d 374, 2014 N.C. App. LEXIS 890 (2014).

Evidence Insufficient for Conviction. —

Evidence was insufficient to support defendant’s conviction for failing to register a change of address because defendant was only staying temporarily with defendant’s father due to defendant’s stress while intending to return to defendant’s burglarized residence. Defendant maintained personal possessions and a personal telephone number at the registered residence and would return to the residence to gather mail, do laundry, pick up fresh clothes, and feed defendant’s pets. State v. Abshire, 192 N.C. App. 594, 666 S.E.2d 657, 2008 N.C. App. LEXIS 1650 (2008), rev'd, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

Interstate Commerce and Travel Sufficient to Require Registration. —

Defendant traveled in interstate commerce and turned up in North Carolina where he was not registered under the Sex Offender Registration and Notification Act (SORNA) or any other registration scheme; further, he admitted, via his plea agreement, that he was required to register under SORNA. Defendant had actual notice of his lifelong duty to register as a sex offender in the state where he was convicted, as well as actual notice of his continuing duty to update his registration as he moved from state to state; thus, defendant had sufficient notice of his duty to register under N.C.’s sex offender registration statute. United States v. David, 2008 U.S. Dist. LEXIS 38613 (W.D.N.C. May 9, 2008).

Evidence Sufficient for Conviction. —

Evidence supported defendant’s G.S. 14-208.9(a) and G.S. 14-208.11(a)(2) conviction as defendant was evicted, and the locks were changed on the public housing apartment defendant was living in, and defendant did not timely report the new address; defendant had an address, even if it was temporary, after the locks were changed, which defendant was required to report. State v. Worley, 198 N.C. App. 329, 679 S.E.2d 857, 2009 N.C. App. LEXIS 1167 (2009).

It was error to deny defendant’s motion to dismiss a charge of falsifying information under G.S. 14-208.11(a)(4) and G.S. 14-208.9 A(a)(4) because there was no evidence that defendant provided false or misleading information on a verification form, despite defendant’s oral misrepresentation to a sheriff’s deputy. State v. Surratt, 241 N.C. App. 380, 773 S.E.2d 327, 2015 N.C. App. LEXIS 440 (2015).

Evidence Sufficient. —

State presented sufficient evidence that defendant, a convicted sex offender, changed her address and failed to comply with the registration requirements of G.S. 14-208.11 of the Sex Offender and Public Protection Registration Program, as there was evidence that she at least temporarily changed her actual place of abode. State v. Abshire, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

Conviction for failure to register as sex offender had to be vacated, because the State failed to show that defendant actually received the verification notice as required by G.S. 14-208.9 A(a)(4), that a sheriff attempted to verify that defendant was still residing at his last registered address, or that defendant’s failure to return the notice was willful. State v. Moore, 240 N.C. App. 465, 770 S.E.2d 131, 2015 N.C. App. LEXIS 276 (2015).

Home Address For Registration Purposes. —

For purposes of G.S. 14-208.7 , 14-208.9, and 14-208.11 of the North Carolina Sex Offender and Public Protection Registration Program, the North Carolina Supreme Court concludes that the legislature intended the definition of address to carry an ordinary meaning of describing or indicating the location where someone lives, and as such, a sex offender’s address indicates his or her residence, meaning the actual place of abode where he or she lives, whether permanent or temporary. State v. Abshire, 363 N.C. 322 , 677 S.E.2d 444, 2009 N.C. LEXIS 611 (2009).

State provided sufficient evidence that defendant changed his address to withstand defendant’s motion to dismiss a charge of willfully failing to comply with the sex offender registration reporting requirements, G.S. 14-208.9(a) and G.S. 14-208.11(a)((2), because defendant’s last reported address was at his father’s home, the complainant testified that defendant was living in his girlfriend’s apartment, and defendant’s father told police that defendant was not residing with him but instead was residing with his girlfriend; the complainant lived in the same building as defendant’s girlfriend and regularly observed or interacted with defendant. State v. Fox, 216 N.C. App. 153, 716 S.E.2d 261, 2011 N.C. App. LEXIS 2144 (2011).

§ 14-208.11A. Duty to report noncompliance of a sex offender; penalty for failure to report in certain circumstances.

  1. It shall be unlawful and a Class H felony for any person who has reason to believe that an offender is in violation of the requirements of this Article, and who has the intent to assist the offender in eluding arrest, to do any of the following:
    1. Withhold information from, or fail to notify, a law enforcement agency about the offender’s noncompliance with the requirements of this Article, and, if known, the whereabouts of the offender.
    2. Harbor, attempt to harbor, or assist another person in harboring or attempting to harbor, the offender.
    3. Conceal, or attempt to conceal, or assist another person in concealing or attempting to conceal, the offender.
    4. Provide information to a law enforcement agency regarding the offender that the person knows to be false information.
  2. This section does not apply if the offender is incarcerated in or is in the custody of a local, State, private, or federal correctional facility.

History. 2006-247, s. 9.1(a).

Editor’s Note.

Session Laws 2006-247, s. 1(a), provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 9.1(b), made this section effective December 1, 2006, and applicable to offenses committed on or after that date.

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-208.12. [Repealed]

Repealed by S.L. 1997-516, s. 1, effective April 1, 1998.

§ 14-208.12A. Request for termination of registration requirement.

  1. Ten years from the date of initial county registration, a person required to register under this Part may petition the superior court to terminate the 30-year registration requirement if the person has not been convicted of a subsequent offense requiring registration under this Article.If the reportable conviction is for an offense that occurred in North Carolina, the petition shall be filed in the district where the person was convicted of the offense.If the reportable conviction is for an offense that occurred in another state, the petition shall be filed in the district where the person resides. A person who petitions to terminate the registration requirement for a reportable conviction that is an out-of-state offense shall also do the following: (i) provide written notice to the sheriff of the county where the person was convicted that the person is petitioning the court to terminate the registration requirement and (ii) include with the petition at the time of its filing, an affidavit, signed by the petitioner, that verifies that the petitioner has notified the sheriff of the county where the person was convicted of the petition and that provides the mailing address and contact information for that sheriff.Regardless of where the offense occurred, if the defendant was convicted of a reportable offense in any federal court, the conviction will be treated as an out-of-state offense for the purposes of this section.

    (a1) The court may grant the relief if:

    1. The petitioner demonstrates to the court that he or she has not been arrested for any crime that would require registration under this Article since completing the sentence,
    2. The requested relief complies with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State, and
    3. The court is otherwise satisfied that the petitioner is not a current or potential threat to public safety.

      (a2) The district attorney in the district in which the petition is filed shall be given notice of the petition at least three weeks before the hearing on the matter. The petitioner may present evidence in support of the petition and the district attorney may present evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be denied.

      (a3) If the court denies the petition, the person may again petition the court for relief in accordance with this section one year from the date of the denial of the original petition to terminate the registration requirement. If the court grants the petition to terminate the registration requirement, the clerk of court shall forward a certified copy of the order to the Department of Public Safety to have the person’s name removed from the registry.

  2. If there is a subsequent offense, the county registration records shall be retained until the registration requirement for the subsequent offense is terminated by the court under subsection (a1) of this section.
  3. The victim of the underlying offense may appear and be heard by the court in a proceeding regarding a request for termination of the sex offender registration requirement. If the victim has elected to receive notices of such proceedings, the district attorney’s office shall notify the victim of the date, time, and place of the hearing. The district attorney’s office may provide the required notification electronically or by telephone, unless the victim requests otherwise. The victim shall be responsible for notifying the district attorney’s office of any changes in the victim’s address and telephone number or other contact information. The judge in any court proceeding subject to this section shall inquire as to whether the victim is present and wishes to be heard. If the victim is present and wishes to be heard, the court shall grant the victim an opportunity to be reasonably heard. The right to be reasonably heard may be exercised, at the victim’s discretion, through an oral statement, submission of a written statement, or submission of an audio or video statement.

History. 1997-516, s. 1; 2006-247, s. 10(a); 2008-117, s. 11; 2011-61, s. 5; 2014-100, s. 17.1(r); 2017-158, s. 22; 2019-245, s. 7(a).

Editor’s Note.

Session Laws 2006-247, s. 1(a), provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

This section, as amended by Session Laws 2006-247, s. 10(a), effective December 1, 2006, is applicable to persons for whom the period of registration would terminate on or after that date.

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-61, s. 5, which, in subsection (a), deleted “in the district where the person resides” following “superior court” in the first paragraph, and added the last two paragraphs, was applicable to petitions filed on or after December 1, 2011.

Session Laws 2017-158, s. 27, made the last paragraph in subsection (a) as added by Session Laws 2017-158, s. 22, effective July 21, 2017, and applicable to petitions filed on or after that date.

Session Laws 2019-245, s. 9(c), made subsection (c) of this section, as added by Session Laws 2019-245, s. 7(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 9(a), is a severability clause.

Effect of Amendments.

Session Laws 2006-247, s. 10(a), effective December 1, 2006, and applicable to persons for whom the period of registration would terminate on or after that date, rewrote the section.

Session Laws 2008-117, s. 11, effective December 1, 2008, and applicable to offenses committed on or after that date, in subsection (a), inserted “Ten years from the date of initial county registration” at the beginning, inserted “30-year” preceding “registration requirement” and deleted “10 years from the date of initial county registration” thereafter. For note on applicability of 30-year registration period, see Editor’s note under G.S. 14-208.7 .

Session Laws 2011-61, s. 5, effective December 1, 2011, and applicable to petitions filed on or after that date, in subsection (a), deleted “in the district where the person resides” following “superior court” in the first paragraph, and added the last two paragraphs.

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” in subsection (a3).

Session Laws 2017-158, s. 22, added the present last paragraph in subsection (a). For effective date and applicability, see editor’s note.

Session Laws 2019-245, s. 7(a), added subsection (c). For effective date and applicability, see editor’s note.

CASE NOTES

Trial court lacked jurisdiction to reconsider petitioner’s request to terminate his sex offender registration requirement after the State did not oppose termination during the initial hearing and did not appeal the initial order. Petitioner followed the statutory procedure under G.S. 14-208.12 A to initiate the termination proceedings and demonstrated to the trial court’s satisfaction that he met the requirements to have his sex offender registration terminated. In re Timberlake, 250 N.C. App. 80, 792 S.E.2d 525, 2016 N.C. App. LEXIS 1067 (2016).

No Ex Post Facto Violation. —

Trial court’s retroactive application of the federal Sex Offender Registration and Notification Act, 42 U.S.C.S. § 16911 et seq., to G.S. 14-208.12 A did not constitute an ex post facto violation because the registration requirements were not penal or punitive. In re Hall, 238 N.C. App. 322, 768 S.E.2d 39, 2014 N.C. App. LEXIS 1397 (2014), cert. denied, 577 U.S. 1048, 136 S. Ct. 688, 193 L. Ed. 2d 519, 2015 U.S. LEXIS 7932 (2015).

Retroactive application of federal standards incorporated into G.S. 14-208.12 A(a1)(2) to an offender did not violate ex post facto prohibitions because (1) the legislature did not intend sex offender registration provisions of N.C. Gen. Stat. art. 27A to be punitive, and (2) the effects of North Carolina’s registration law did not negate the general assembly’s expressed civil intent. In re Bethea, 253 N.C. App. 659, 806 S.E.2d 677, 2017 N.C. App. LEXIS 813 (2017).

Petition for Removal from Registry Properly Denied. —

Because petitioner admitted at trial that he did not have a “clean record,” the trial court correctly concluded that petitioner was not entitled to have his name removed from the sex offender registry pursuant to G.S. 14-208.12 A, and had to continue to maintain registration. In re McClain, 226 N.C. App. 465, 741 S.E.2d 893, 2013 N.C. App. LEXIS 388 (2013).

Trial court did not err in relying on the federal Sex Offender Registration and Notification Act, 42 U.S.C.S. § 16911 et seq., to justify denial of a petition for termination of petitioner’s sex offender registration where petitioner registered in April 2003, G.S. 14-208.12 A(a) (2006) was clearly retroactively applicable to petitioner, and under that statute, he was not eligible to petition to terminate his registration until April 2013. In re Hall, 238 N.C. App. 322, 768 S.E.2d 39, 2014 N.C. App. LEXIS 1397 (2014), cert. denied, 577 U.S. 1048, 136 S. Ct. 688, 193 L. Ed. 2d 519, 2015 U.S. LEXIS 7932 (2015).

When a trial court found an offender was no threat to public safety, it was not a substantive due process violation to deny the offender’s petition for removal from the sex offender registry because the court also found terminating the offender’s duty to register would not comply with federal standards, and incorporating those standards into G.S. 14-208.12 A(a1)(2) was rationally related to the legitimate governmental interest in protecting public safety. In re Bethea, 253 N.C. App. 659, 806 S.E.2d 677, 2017 N.C. App. LEXIS 813 (2017).

Change to Federal Act. —

Trial court erred as a matter of law in finding that the removal of a convicted sex offender from the North Carolina Sex Offender Registry would not comply with the provisions of the federal Jacob Wetterling Act, 42 U.S.C.S. § 14071, because (1) the Jacob Wetterling Act was repealed and replaced by the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act), 42 U.S.C.S. § 16901 et seq.; and (2) removing the offender’s registration requirement would have complied with the relevant provisions of the Adam Walsh Act. In re Hamilton, 220 N.C. App. 350, 725 S.E.2d 393, 2012 N.C. App. LEXIS 586 (2012).

“Initial County Registration.” —

Trial court erred when it terminated petitioner’s sex offender registration requirement because “initial county registration” in G.S. 14-208.12 A(a) meant initial county registration in North Carolina. Petitioner’s registration in Kentucky did not trigger 10-year period of G.S. 14-208.12 A(a). In re Borden, 216 N.C. App. 579, 718 S.E.2d 683, 2011 N.C. App. LEXIS 2282 (2011).

Sex Offender’s Registration Period Did Not Automatically Terminate. —

Registration period for a convicted sex offender did not automatically terminate in that the registrant’s period of registration was not scheduled to terminate until 2011, and thus, G.S. 14-208.12 A applied to the registrant because, reading G.S. 14-208.7 in pari materia with G.S. 14-208.12 A, the abolition of the automatic termination of registration provision applied to persons for whom the period of registration terminated on or after 1 December 2006. In re Hamilton, 220 N.C. App. 350, 725 S.E.2d 393, 2012 N.C. App. LEXIS 586 (2012).

Appeal of Order Terminating Registration Requirement Dismissed. —

When the State consented to a sex offender’s motion to terminate the offender’s registration requirement and then appealed the order granting the motion, the State’s appeal was dismissed because (1) the State did not raise the State’s argument that the offender had not resided in North Carolina for ten years, as required by G.S. 14-208.12 A(a), in the trial court, and (2) the State’s argument presented no question of subject matter jurisdiction that could be raised at any time, since the trial court had jurisdiction to enter the order. In re Hutchinson, 218 N.C. App. 443, 723 S.E.2d 131, 2012 N.C. App. LEXIS 224 (2012).

Wrongful Registration Claim. —

When a sex offender registrant brought claims against state and county officials for wrongfully being required to register, after the registrant was no longer required to register in Michigan, the registrant’s N.C. Const. art. I, § 19 claims against a state official failed because (1) the registrant sought no removal from Michigan’s registry, and (2) G.S. 14-208.7(a) and 14.208.6(4)(b) gave the official no discretion to remove the registrant from North Carolina’s registry. Bunch v. Britton, 253 N.C. App. 659, 802 S.E.2d 462, 2017 N.C. App. LEXIS 435 (2017).

§ 14-208.12B. Registration requirement review.

  1. When a person is notified by a sheriff that the person may be required to register based on an out-of-state conviction as provided in G.S. 14-208.6(4)(b), or a federal conviction as provided in G.S. 14-208.6(4)(c), that is substantially similar to a North Carolina sexually violent offense, or an offense against a minor, the sheriff shall notify the person of the right to petition the court for a judicial determination of the requirement to register. Notification shall be served on the person and the district attorney, as provided in G.S. 1A-1 , Rule 4(j), or delivery by any other means that the person consented to in writing. The person may petition the court to contest the requirement to register by filing a petition to obtain a judicial determination as to whether the person is required to register under this Article. The judicial review shall be by a superior court judge presiding in the district where the petition is filed. The review under this section is limited to determine whether or not the person’s out-of-state or federal conviction is substantially similar to a reportable conviction, as defined in G.S. 14-208.6(4)(a).
  2. The petition shall be filed in the county in which the person resides using a form created by the Administrative Office of the Courts. The petition must be filed with the clerk of court within 30 days of the person’s receipt of the notification of the requirement to register from the sheriff. The person filing the petition must serve a copy of the petition on the office of the district attorney and the sheriff in the county where the person resides within three days of filing the petition with the clerk of court. The petition shall be calendared at the next regularly scheduled term of superior court. At the first setting, the petitioner must be advised of the right to have counsel present at the hearing and to the appointment of counsel if the petitioner cannot afford to retain counsel. Appointment of counsel shall be in accordance with rules adopted by the Office of Indigent Defense Services.
  3. At the hearing, the district attorney has the burden to prove by a preponderance of the evidence, that the person’s out-of-state or federal conviction is for an offense, which if committed in North Carolina, was substantially similar to a sexually violent offense, or an offense against a minor. The person may present evidence in support of the lack of substantial similarity between the out-of-state or federal conviction, but may not contest the validity of the conviction. The court may review copies of the relevant out-of-state or federal criminal law and compare the elements of the out-of-state or federal offense to those purportedly similar to a North Carolina offense.
  4. After reviewing the petition, receiving any and all evidence presented by the parties at the hearing, considering any arguments of the parties, the presiding superior court judge shall determine whether the out-of-state or federal conviction is substantially similar to a reportable conviction. If the presiding superior court judge determines the out-of-state or federal conviction is substantially similar to a reportable conviction, the judge shall order the person to register as a sex offender pursuant to this Article. If the presiding superior court judge determines the out-of-state or federal conviction is not substantially similar to a reportable conviction, the judge shall indicate in an order that the person is not required to register as a sex offender pursuant to this Article, based on the out-of-state or federal conviction presented in the hearing. The judge shall prepare a written order and shall direct such order be filed with the clerk of court and copied to the district attorney and the sheriff.
  5. A person who properly files a petition in accordance with this provision shall not be required to register with the sheriff until such petition is decided by the court. No person who properly files a petition in accordance with this provision may be charged with failing to register or any other violation applicable to registrants under this Article, while such petition is pending judicial review as provided in this section.
  6. Any person who is notified by the sheriff of the person’s requirement to register as a result of an out-of-state or federal conviction and fails to file a petition under this provision within 30 days of receipt of the notification shall be deemed to have waived judicial review of the person’s requirement to register.
  7. A person notified of a requirement to register as a result of a conviction for an offense under G.S. 14-208.6(4)(b) or G.S. 14-208.6(4)(c), who willfully (i) does not file a petition under this section and (ii) does not register in accordance with this Article, shall be in violation of G.S. 14-208.11(a)(1) and shall be guilty of a Class F Felony as provided in that section.
  8. This section shall not be used in lieu of the process to terminate the period of registration pursuant to G.S. 14-208.12 A.
  9. No sheriff, or employee of a sheriffs’ office, district attorney’s office, or the North Carolina State Bureau of Investigation shall incur any civil or criminal liability under North Carolina law as the result of the performance of official duties under this Article.

History. 2020-83, s. 11.5(a).

Editor’s Note.

Session Laws 2020-83, s. 11.5(c), provides: “The State Bureau of Investigation, in consultation with the Office of the Attorney General, shall provide each elected District Attorney with a list of the class members subject to the Honorable Judge Terrence W. Boyle’s order in Grabarczyk v. Stein, that resides in a county in that District Attorney’s district. An elected District Attorney must decide to handle each case, or have the Attorney General handle the case. If requested by an elected District Attorney, the Attorney General shall make preliminary determinations, and represent the State in any proceedings created by this section. Each District Attorney or Attorney General shall review the prior substantially similar determination for every one of the class members. If the District Attorney or Attorney General make a preliminary determination that the individual’s out-of-state or federal conviction is substantially similar to a North Carolina offense that would have required registration at the time of offense, they shall notify the person and the sheriff in the county where the individual resides. The District Attorney or Attorney General may petition the court in that county for judicial review of the registration.”

Session Laws 2020-83, s. 11.5(d), provides: “The Department of Public Safety shall notify any individual registered on August 1, 2020, whose registration is solely based on a substantially similar determination for an out-of-state or federal conviction, of the right to contest the registration requirement and the process provided in G.S. 14-208.12 B, as enacted by subsection (a) of this section.”

Session Laws 2020-83, s. 11.5(e), made this section, as added by Session Laws 2020-83, s. 11.5(a), effective August 1, 2020, and applicable to any individual notified of the right to contest required registration as a sex offender on or after that date.

§ 14-208.13. File with Criminal Information Network.

  1. The Department of Public Safety shall include the registration information in the Criminal Information Network as set forth in G.S. 143B-905 .
  2. The Department of Public Safety shall maintain the registration information permanently even after the registrant’s reporting requirement expires.

History. 1995, c. 545, s. 1; 1997-516, s. 1; 2014-100, s. 17.1(y).

Effect of Amendments.

Session Laws 2014-100, s. 17.1(y), effective July 1, 2014, in the section heading, substituted “Criminal Information Network” for “Police Information Network”; in subsection (a), substituted “Criminal Information Network” for “Police Information Network” and substituted “G.S. 143B-905” for “G. S. 114-10.1”; and, in subsections (a) and (b), substituted “Department of Public Safety” for “Division.”

§ 14-208.14. Statewide registry; Department of Public Safety designated custodian of statewide registry.

  1. The Department of Public Safety shall compile and keep current a central statewide sex offender registry. The Department is the State agency designated as the custodian of the statewide registry. As custodian the Department has the following responsibilities:
    1. To receive from the sheriff or any other law enforcement agency or penal institution all sex offender registrations, changes of address, changes of academic or educational employment status, and prerelease notifications required under this Article or under federal law. The Department shall also receive notices of any violation of this Article, including a failure to register or a failure to report a change of address.
    2. To provide all need-to-know law enforcement agencies (local, State, campus, federal, and those located in other states) immediately upon receipt by the Department of any of the following: registration information, a prerelease notification, a change of address, a change of academic or educational employment status, or notice of a violation of this Article.

      (2a) To notify the appropriate law enforcement unit at an institution of higher education as soon as possible upon receipt by the Department of relevant information based on registration information or notice of a change of academic or educational employment status. If an institution of higher education does not have a law enforcement unit, then the Department shall provide the information to the local law enforcement agency that has jurisdiction for the campus.

    3. To coordinate efforts among law enforcement agencies and penal institutions to ensure that the registration information, changes of address, change of name, prerelease notifications, and notices of failure to register or to report a change of address are conveyed in an appropriate and timely manner.
    4. To provide public access to the statewide registry in accordance with this Article.

      (4a) To maintain the system for public access so that a registrant’s full name, any aliases, and any legal name changes are cross-referenced and a member of the public may conduct a search of the system for a registrant under any of those names.

    5. To maintain a system allowing an entity to access a list of online identifiers of persons in the central sex offender registry.
  2. The statewide registry shall include the following:
    1. Registration information obtained by a sheriff or penal institution under this Article or from any other local or State law enforcement agency.
    2. Registration information received from a state or local law enforcement agency or penal institution in another state.
    3. Registration information received from a federal law enforcement agency or penal institution.

History. 1997-516, s. 1; 2002-147, s. 21; 2008-220, s. 8; 2011-61, ss. 6, 7; 2014-100, s. 17.1(z).

Editor’s Note.

Session Laws 2008-220, s. 12, provides: “Sections 10 and 12 of this act are effective when they become law. Section 11 of this act becomes effective July 1, 2008. The provision in Section 1 of this act amending G.S. 14-208.6(5) becomes effective December 1, 2008, and applies to all persons convicted on or after that date, and to all persons released from a penal institution on or after that date. The remainder of this act becomes effective May 1, 2009, and applies to persons who are required to be registered under Article 27A of Chapter 14 of the General Statutes on or after that date. The requirements related to online identifiers apply to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after May 1, 2009, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continue to be registered on May 1, 2009. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continuing to be registered on May 1, 2009, shall not be in violation of the online identifier requirements if they provide the required information at the first verification of information that occurs on or after May 1, 2009.”

Session Laws 2011-61, s. 7 amended this section by adding a subdivision (4a), but the act failed to identify the subsection. It has been set out as subdivision (a)(4a) at the direction of the Revisor of Statutes.

Session Laws 2011-61, s. 9, provides in part: “Sections 1, 2, 3, 4, 6, and 7 of this act become effective December 1, 2011, and applicable to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after December 1, 2011, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to December 1, 2011, and continue to be registered on December 1, 2011. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to December 1, 2011, and continuing to be registered on December 1, 2011, shall not be in violation of the registration, verification, and reporting requirements regarding a person’s name, if the person provides the required information at the first verification of information that occurs on or after December 1, 2011.” Session Laws 2011-61, ss. 6 and 7, inserted “change of name” in subdivision (a)(3), and added subdivision (a)(4a).

Effect of Amendments.

Session Laws 2011-61, ss. 6 and 7, effective December 1, 2011, inserted “change of name” in subdivision (a)(3); and added subdivision (a)(4a). For applicability, see Editor’s note.

Session Laws 2014-100, s. 17.1(z), effective July 1, 2014, substituted “Department of Public Safety” for “Division of Criminal Statistics” in the section heading and the introductory language of subsection (a); and substituted “Department” for “Division” throughout the section.

§ 14-208.15. Certain statewide registry information is public record: access to statewide registry.

  1. The information in the statewide registry that is public record is the same as in G.S. 14-208.10 . The Department of Public Safety shall release any other relevant information that is necessary to protect the public concerning a specific person, but shall not release the identity of the victim of the offense that required registration under this Article.
  2. The Department of Public Safety shall provide free public access to automated data from the statewide registry, including photographs provided by the registering sheriffs, via the Internet. The public will be able to access the statewide registry to view an individual registration record, a part of the statewide registry, or all of the statewide registry. The Department of Public Safety may also provide copies of registry information to the public upon written request and may charge a reasonable fee for duplicating costs and mailings costs.
  3. Upon request of an institution of higher education, the Sheriff of the county in which the educational institution is located shall provide a report containing the registry information for any registrant who has stated that the registrant is a student or employee, or expects to become a student or employee, of that institution of higher education. The Department of Public Safety shall provide each sheriff with the ability to generate the report from the statewide registry. The report shall be provided electronically without charge. The institution of higher education may receive a written report upon payment of reasonable duplicating costs and mailing costs.

History. 1997-516, s. 1; 2014-100, s. 17.1(r); 2015-44, s. 4.

Editor’s Note.

Session Laws 2015-44, s. 1, provides: “This act may be cited as the ‘Protect Our Students Act.’ ”

Effect of Amendments.

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” throughout the section.

Session Laws 2015-44, s. 4, effective December 1, 2015, added subsection (c).

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

CASE NOTES

Convicted sex offender from another jurisdiction who subsequently moved to North Carolina had actual notice of his lifelong duty to register with South Carolina, which led a reasonable individual to inquire of a duty to register in any state upon relocation. State v. Bryant, 359 N.C. 554 , 614 S.E.2d 479, 2005 N.C. LEXIS 647 (2005).

§ 14-208.15A. Release of online identifiers to entity; fee.

  1. The Department of Public Safety may release registry information regarding a registered offender’s online identifier to an entity for the purpose of allowing the entity to prescreen users or to compare the online identifier information with information held by the entity as provided by this section.
  2. An entity desiring to prescreen its users or compare its database of registered users to the list of online identifiers of persons in the statewide registry may apply to the Department of Public Safety to access the information. An entity that complies with the criteria developed by the Department of Public Safety regarding the release and use of the online identifier information and pays the fee may screen new users or compare its database of registered users to the list of online identifiers of persons in the statewide registry as frequently as the Department of Public Safety may allow for the purpose of identifying a registered user associated with an online identifier contained in the statewide registry.
  3. The Department of Public Safety may charge an entity that submits a request for the online identifiers of persons in the statewide registry an annual fee of one hundred dollars ($100.00). Fees collected under this section shall be credited to the Department of Public Safety and applied to the cost of providing this service.
  4. The Department of Public Safety shall develop standards regarding the release and use of online identifier information. The standards shall include a requirement that the information obtained from the statewide registry shall not be disclosed for any purpose other than for prescreening its users or comparing the database of registered users of the entity against the list of online identifiers of persons in the statewide registry.
  5. An entity that receives:
    1. A complaint from a user of the entity’s services that a person uses its service to solicit a minor by computer to commit an unlawful sex act as defined in G.S. 14-202.3 , or
    2. A report that a user may be violating G.S. 14-190.17 or G.S. 14-190.17 A by posting or transmitting material that contains a visual representation of a minor engaged in sexual activity, shall report that information and the online identifier information of the person allegedly committing the offense, including whether that online identifier is included in the statewide registry, to the Cyber Tip Line at the National Center for Missing and Exploited Children, which shall forward that report to an appropriate law enforcement official in this State. The offense is committed in the State for purposes of determining jurisdiction, if the transmission that constitutes the offense either originates in the State or is received in the State.
  6. An entity that complies with this section in good faith is immune from civil or criminal liability resulting from either of the following:
    1. The entity’s refusal to provide system service to a person on the basis that the entity reasonably believed that the person was subject to registration under State sex offender registry laws.
    2. A person’s criminal or tortious acts against a minor with whom the person had communicated on the entity’s system.

History. 2008-220, s. 9; 2009-272, s. 2; 2014-100, s. 17.1(o), (r).

Editor’s Note.

Session Laws 2008-220, s. 12, made this section effective May 1, 2009, and applicable to persons who are required to be registered under Article 27A of Chapter 14 of the General Statutes on or after that date.

Session Laws 2008-220, s. 12, further provides: “The requirements related to online identifiers apply to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after May 1, 2009, and to persons who are registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continue to be registered on May 1, 2009. However, any person registered under Article 27 of Chapter 14 of the General Statutes prior to May 1, 2009, and continuing to be registered on May 1, 2009, shall not be in violation of the online identifier requirements if they provide the required information at the first verification of information that occurs on or after May 1, 2009.”

Effect of Amendments.

Session Laws 2009-272, s. 2, effective May 1, 2009, in subsection (d), substituted “standards” for “criteria and adopt rules” in the first sentence, and substituted “standards” for “criteria” in the second sentence.

Session Laws 2014-100, s. 17.1(o), (r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” in subsections (a) through (d); and substituted “Department of Public Safety” for “Department of Justice” in subsection (c).

§ 14-208.16. Residential restrictions.

  1. A registrant under this Article shall not knowingly reside at one of the following:
    1. Any location which is within 1,000 feet of any property line of a property on which any public or nonpublic school or child care center is located.
    2. Within any structure, any portion of which is within 1,000 feet of any property line of a property on which any public or nonpublic school or child care center is located.This subsection applies to any registrant who did not establish his or her residence, in accordance with subsection (d) of this section, prior to August 16, 2006.
  2. As used in this section, “school” does not include home schools as defined in G.S. 115C-563 or institutions of higher education; however, for the purposes of this section, the term “school” shall include any construction project designated for use as a public school if the governing body has notified the sheriff or sheriffs with jurisdiction within 1,000 feet of the construction project of the construction of the public school. The term “child care center” is defined by G.S. 110-86(3) ; however, for purposes of this section, the term “child care center” does include the permanent locations of organized clubs of Boys and Girls Clubs of America. The term “registrant” means a person who is registered, or is required to register, under this Article.
  3. This section does not apply to child care centers that are located on or within 1,000 feet of the property of an institution of higher education where the registrant is a student or is employed.
  4. Changes in the ownership of or use of property within 1,000 feet of a registrant’s registered address that occur after a registrant establishes residency at the registered address shall not form the basis for finding that an offender is in violation of this section. For purposes of this subsection, a residence is established when the registrant does any of the following:
    1. Purchases the residence or enters into a specifically enforceable contract to purchase the residence.
    2. Enters into a written lease contract for the residence and for as long as the person is lawfully entitled to remain on the premises.
    3. Resides with an immediate family member who established residence in accordance with this subsection. For purposes of this subsection, “immediate family member” means a child or sibling who is 18 years of age or older, or a parent, grandparent, legal guardian, or spouse of the registrant.
  5. Nothing in this section shall be construed as creating a private cause of action against a real estate agent or landlord for any act or omission arising out of the residential restriction in this section.
  6. A violation of this section is a Class G felony.

History. 2006-247, s. 11(a); 2007-213, s. 10; 2013-28, s. 1; 2014-21, s. 1; 2019-245, s. 8(a); 2021-115, s. 3.

Editor’s Note.

Session Laws 2006-247, s. 1(a), provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 11(c), as amended by Session Laws 2013-28, s. 2, provides: “Subsection (a) of this section becomes effective December 1, 2006, and applies to all persons registered or required to register on or after that date. Subsection (a) of this section does not apply to a person who has established a residence prior to August 16, 2006, in accordance with the provisions in G.S. 14-208.16 (d)(1), (2), or (3) as enacted by this act. This subsection is effective on August 16, 2006. The remainder of this section is effective December 1, 2006, and is applicable to offenses committed on or after that date.”

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

The preamble to Session Laws 2013-28, provides: “Whereas, in 2006, the General Assembly enacted restrictions on registered sex offenders residing near schools and day care centers; and

“Whereas, the law provided that the residential restrictions did not apply to a person who has established a residence in accordance with the law prior to the effective date of the law [August 16, 2006]; and

“Whereas, the application portion of the law was in the session law, but not codified as part of the statute; and

“Whereas, law enforcement officials mistakenly believe, based only upon the codified portion of the law which provides the conditions upon which a residence is established and not the effective date of the residency, that a registered sex offender can legally reside within 1,000 feet of a school or day care center if the offender moves in with a family member who had established residence at the location prior to the effective date of the law, even though the offender did not establish residence at that location prior to August 16, 2006; Now, therefore,”

Session Laws 2014-21, s. 2, made the amendment to subsection (b) by Session Laws 2014-21, s. 1, applicable to all person registered or required to register on or after June 24, 2014, and further provides: “This act does not apply to a person who has established a residence prior to the effective date of this act in accordance with G.S. 14-208.16(d)(1), (2), or (3).”

Session Laws 2019-245, s. 9(c), made the amendment of subsection (b) of this section by Session Laws 2019-245, s. 8(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 9(a), is a severability clause.

Session Laws 2021-115, s. 4, made the rewriting of the first paragraph of subsection (a) of this section by Session Laws 2021-115, s. 3, effective December 1, 2021, and applicable to offenses committed on or after that date by all persons registered or required to register on or after that date, and further provides that: “Section 3 of this act does not apply to a person who has established a residence prior to the effective date of that section in accordance with G.S. 14-208.16(d)(1), (2), or (3).”

Effect of Amendments.

Session Laws 2007-213, s. 10, effective July 11, 2007, substituted “child or sibling who is 18 years of age or older, or a parent, grandparent, legal guardian, or spouse” for “child, sibling, or parent” in the second sentence of subdivision (d)(3).

Session Laws 2013-28, s. 1, effective April 16, 2013, added the last sentence to subsection (a).

Session Laws 2014-21, s. 1, effective June 24, 2014, substituted “education. The term ‘child care center’ is defined by G.S. 110-86(3) ; however, for purposes of this section, the term ‘child care center’ does include the permanent locations of organized clubs of Boys and Girls Clubs of America” for “education, and the term ‘child care center’ is defined by G.S. 110-86(3) ” in subsection (b). See Editor’s note for applicability.

Session Laws 2019-245, s. 8(a), inserted “however, for the purposes of this section, the term ‘school’ shall include any construction project designated for use as a public school if the governing body has notified the sheriff or sheriffs with jurisdiction within 1,000 feet of the construction project of the construction of the public school” in the first sentence of subsection (b). For effective date and applicability, see editor’s note.

Session Laws 2021-115, s. 3, rewrote the first paragraph of subsection (a). For effective date and applicability, see editor’s note.

§ 14-208.17. Sexual predator prohibited from working or volunteering for child-involved activities; limitation on residential use.

  1. It shall be unlawful for any person required to register under this Article to work for any person or as a sole proprietor, with or without compensation, at any place where a minor is present and the person’s responsibilities or activities would include instruction, supervision, or care of a minor or minors.
  2. It shall be unlawful for any person to conduct any activity at his or her residence where the person:
    1. Accepts a minor or minors into his or her care or custody from another, and
    2. Knows that a person who resides at that same location is required to register under this Article.
  3. A violation of this section is a Class F felony.

History. 2006-247, s. 11(b).

Editor’s Note.

Session Laws 2006-247, s. 1(a), provided: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 11(c), made this section effective December 1, 2006, and applicable to offenses committed on or after that date.

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-208.18. (See Editor’s note for contingent expiration date) Sex offender unlawfully on premises.

  1. It shall be unlawful for any person required to register under this Article, if the offense requiring registration is described in subsection (c) of this section, to knowingly be at any of the following locations:
    1. On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.
    2. Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.
    3. At any place where minors frequently congregate, including, but not limited to, libraries, arcades, amusement parks, recreation parks, and swimming pools, when minors are present.
    4. On the State Fairgrounds during the period of time each year that the State Fair is conducted, on the Western North Carolina Agricultural Center grounds during the period of time each year that the North Carolina Mountain State Fair is conducted, and on any other fairgrounds during the period of time that an agricultural fair is being conducted.
  2. Notwithstanding any provision of this section, a person subject to subsection (a) of this section who is the parent or guardian of a minor may take the minor to any location that can provide emergency medical care treatment if the minor is in need of emergency medical care.
  3. The subdivisions of subsection (a) of this section are applicable as follows:
    1. Subdivisions (1), (3), and (4) of subsection (a) of this section apply to persons required to register under this Article who have committed any of the following offenses:
      1. Any offense in Article 7B of this Chapter or any federal offense or offense committed in another state, which if committed in this State, is substantially similar to an offense in Article 7B of this Chapter.
      2. Any offense where the victim of the offense was under the age of 18 years at the time of the offense.
      3. Any offense in violation of G.S. 14-190.16 , 14-190.17, or 14-190.17A or any federal offense or offense committed in another state, which if committed in this State is substantially similar to an offense in violation of G.S. 14-190.16 , 14-190.17, or 14-190.17A.
    2. Subdivision (2) of subsection (a) of this section applies to persons required to register under this Article if any of the following apply:
      1. The person has committed any offense in Article 7B of this Chapter or any federal offense or offense committed in another state, which if committed in this State is substantially similar to an offense in Article 7B of this Chapter, and a finding has been made in any criminal or civil proceeding that the person presents, or may present, a danger to minors under the age of 18.
      2. The person has committed any offense where the victim of the offense was under the age of 18 years at the time of the offense.
      3. The person has committed an offense in violation of G.S. 14-190.16, 14-190.17, or 14-190.17A or any federal offense or offense committed in another state, which if committed in this State is substantially similar to an offense in violation of G.S. 14-190.16, 14-190.17, or 14-190.17A.
  4. A person subject to subsection (a) of this section who is a parent or guardian of a student enrolled in a school may be present on school property if all of the following conditions are met:
    1. The parent or guardian is on school property for the purpose for one of the following:
      1. To attend a conference at the school with school personnel to discuss the academic or social progress of the parents’ or guardians’ child; or
      2. The presence of the parent or guardian has been requested by the principal or his or her designee for any other reason relating to the welfare or transportation of the child.
    2. The parent or guardian complies with all of the following:
      1. Notice: The parent or guardian shall notify the principal of the school of the parents’ or guardians’ registration under this Article and of his or her presence at the school unless the parent or guardian has permission to be present from the superintendent or the local board of education, or the principal has granted ongoing permission for regular visits of a routine nature. If permission is granted by the superintendent or the local board of education, the superintendent or chairman of the local board of education shall inform the principal of the school where the parents’ or guardians’ will be present. Notification includes the nature of the parents’ or guardians’ visit and the hours when the parent or guardian will be present at the school. The parent or guardian is responsible for notifying the principal’s office upon arrival and upon departure. Any permission granted under this sub-subdivision shall be in writing.
      2. Supervision: At all times that a parent or guardian is on school property, the parent or guardian shall remain under the direct supervision of school personnel. A parent or guardian shall not be on school property even if the parent or guardian has ongoing permission for regular visits of a routine nature if no school personnel are reasonably available to supervise the parent or guardian on that occasion.
  5. A person subject to subsection (a) of this section who is eligible to vote may be present at a location described in subsection (a) used as a voting place as defined by G.S. 163-165 only for the purposes of voting and shall not be outside the voting enclosure other than for the purpose of entering and exiting the voting place. If the voting place is a school, then the person subject to subsection (a) shall notify the principal of the school that he or she is registered under this Article.
  6. A person subject to subsection (a) of this section who is eligible under G.S. 115C-378 to attend public school may be present on school property if permitted by the local board of education pursuant to G.S. 115C-390.11(a)(2).
  7. A juvenile subject to subsection (a) of this section may be present at a location described in that subsection if the juvenile is at the location to receive medical treatment or mental health services and remains under the direct supervision of an employee of the treating institution at all times.

    (g1) Notwithstanding any provision of this section, a person subject to subsection (a) of this section who is required to wear an electronic monitoring device shall wear an electronic monitoring device that provides exclusion zones around the premises of all elementary and secondary schools in North Carolina.

  8. A violation of this section is a Class H felony.

History. 2008-117, s. 12; 2009-570, s. 5; 2011-245, s. 2(b); 2011-282, s. 14; 2015-62, s. 5(a); 2015-181, s. 47; 2016-102, s. 1; 2017-6, s. 3; 2017-102, s. 33.1; 2018-146, ss. 3.1(a), (b), 6.1; 2021-115, s. 1.

Re-recodification; Technical and Conforming Changes.

Session Laws 2017-6, s. 3, provides, in part: “The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled ‘Elections and Ethics Enforcement Act,’ as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate.” The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted “G.S. 163A-1095” for “G.S. 163-165” in subsection (e).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to the reference in subsection (e).

Editor’s Note.

Session Laws 2015-181, s. 47, provides: “The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority the Revisor of Statutes substituted “Article 7B” for “Article 7A” both times it appears in subdivision (c)(1).

Session Laws 2016-102, s. 2, as amended by Session Laws 2017-102, s. 33.1, provides: “The changes made in Section 1 of this act are effective unless either or both of the decisions of the United States District Court for the Middle District of North Carolina ruling G.S. 14-208.18(a)(2) and G.S. 14-208.18(a)(3) unconstitutional, as they existed prior to the enactment of this act, are stayed or overturned by a higher court on appeal, in which case the appropriate portion of the prior version of the statute to which the decision pertained is again effective as follows:

“(1) If the ruling enjoining enforcement of G.S. 14-208.18 (a)(2) is stayed or overturned, the changes made to subsection (c) of G.S. 14-208.18 by Section 1 of this act shall be repealed.

“(2) If the ruling enjoining enforcement of G.S. 14-208.18 (a)(3) is stayed or overturned, the changes made to subdivision (3) of subsection (a) of G.S. 14-208.18 by Section 1 of this act shall be repealed.” As of October 2017, neither of the events described in subdivisions (1) and (2) have occurred.

Session Laws 2016-102, s. 3, made the amendment to this section by Session Laws 2016-102, s. 1, applicable to offenses committed on or after September 1, 2016.

Prior to the 2016 amendment this section read as follows: “(a) It shall be unlawful for any person required to register under this Article, if the offense requiring registration is described in subsection (c) of this section, to knowingly be at any of the following locations:

“(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.

“(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) of this subsection that are located in malls, shopping centers, or other property open to the general public.

“(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.

“(b) Notwithstanding any provision of this section, a person subject to subsection (a) of this section who is the parent or guardian of a minor may take the minor to any location that can provide emergency medical care treatment if the minor is in need of emergency medical care.

“(c) Subsection (a) of this section is applicable only to persons required to register under this Article who have committed any of the following offenses:

“(1) Any offense in Article 7B of this Chapter or any federal offense or offense committed in another state, which if committed in this State, is substantially similar to an offense in Article 7B of this Chapter.

“(2) Any offense where the victim of the offense was under the age of 16 years at the time of the offense.

“(d) A person subject to subsection (a) of this section who is a parent or guardian of a student enrolled in a school may be present on school property if all of the following conditions are met:

“(1) The parent or guardian is on school property for the purpose for one of the following:

“a. To attend a conference at the school with school personnel to discuss the academic or social progress of the parents’ or guardians’ child; or

“b. The presence of the parent or guardian has been requested by the principal or his or her designee for any other reason relating to the welfare or transportation of the child.

“(2) The parent or guardian complies with all of the following:

“a. Notice: The parent or guardian shall notify the principal of the school of the parents’ or guardians’ registration under this Article and of his or her presence at the school unless the parent or guardian has permission to be present from the superintendent or the local board of education, or the principal has granted ongoing permission for regular visits of a routine nature. If permission is granted by the superintendent or the local board of education, the superintendent or chairman of the local board of education shall inform the principal of the school where the parents’ or guardians’ will be present. Notification includes the nature of the parents’ or guardians’ visit and the hours when the parent or guardian will be present at the school. The parent or guardian is responsible for notifying the principal’s office upon arrival and upon departure. Any permission granted under this sub-subdivision shall be in writing.

“b. Supervision: At all times that a parent or guardian is on school property, the parent or guardian shall remain under the direct supervision of school personnel. A parent or guardian shall not be on school property even if the parent or guardian has ongoing permission for regular visits of a routine nature if no school personnel are reasonably available to supervise the parent or guardian on that occasion.

“(e) A person subject to subsection (a) of this section who is eligible to vote may be present at a location described in subsection (a) used as a voting place as defined by G.S. 163-165 only for the purposes of voting and shall not be outside the voting enclosure other than for the purpose of entering and exiting the voting place. If the voting place is a school, then the person subject to subsection (a) shall notify the principal of the school that he or she is registered under this Article.

“(f) A person subject to subsection (a) of this section who is eligible under G.S. 115C-378 to attend public school may be present on school property if permitted by the local board of education pursuant to G.S. 115C-390.11(a)(2).

“(g) A juvenile subject to subsection (a) of this section may be present at a location described in that subsection if the juvenile is at the location to receive medical treatment or mental health services and remains under the direct supervision of an employee of the treating institution at all times.

“(g1) Notwithstanding any provision of this section, a person subject to subsection (a) of this section who is required to wear an electronic monitoring device shall wear an electronic monitoring device that provides exclusion zones around the premises of all elementary and secondary schools in North Carolina.

“(h) A violation of this section is a Class H felony.”

Session Laws 2021-115, s. 4, made the amendments to subsection (c) of this section by Session Laws 2021-115, s. 1, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2009-570, s. 5, effective August 28, 2009, substituted “subsection (c)” for “subsection (b)” in the introductory language of subsection (a).

Session Laws 2011-245, s. 2(b), effective October 1, 2011, added subsection (g1).

Session Laws 2011-282, s. 14, effective June 23, 2011, and applicable beginning with the 2011-2012 school year, substituted “G.S. 115C-390.11(a)(2)” for “G.S. 115C-391(d)(2)” in subsection (f).

Session Laws 2015-62, s. 5(a), effective December 1, 2015, inserted “or any federal offense or offense committed in another state, which if committed in this State, is substantially similar to an offense in Article 7B of this Chapter” at the end of subdivision (c)(1). For applicability, see editor’s note.

Session Laws 2016-102, s. 1, effective September 1, 2016, substituted “frequently congregate, including, but not limited to, libraries, arcades, amusement parks, recreation parks, and swimming pools, when minors are present” for “gather for regularly scheduled educational, recreational, or social programs” at the end of subdivision (a)(3); added subdivision (a)(4); rewrote the introductory paragraph in subsection (c); added the introductory language in subdivision (c)(1); redesignated former subdivisions (c)(1) and (2) as (c)(1) a and b; and added subdivision (c)(2). For contingent expiration date for changes to subdivisions (a)(3) and subsection (c) and for applicability provision, see Editor’s notes.

Session Laws 2021-115, s. 1, added subdivisions (c)(1)c. and (c)(2)c.; and in the introductory paragraph of (c)(2), substituted “any of the following apply” for “either of the following applies.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

CASE NOTES

Constitutionality. —

As there are sets of circumstances under which G.S. 14-208.18(a)(3) is not vague as to prohibitions regarding a registered sex offender’s presence at “any place”—for example, entering a baseball field where children have regularly scheduled games—defendant lacked standing to mount a facial challenge to G.S. 14-208.18(a)(3). State v. Daniels, 224 N.C. App. 608, 741 S.E.2d 354, 2012 N.C. App. LEXIS 1478 (2012).

“Any place” portion of G.S. 14-208.18(a)(3) was unconstitutionally vague as applied to defendant, as it would not be clear to a reasonable person that a registered sex offender’s being close to the parking lot area of a park where children played, or playing softball on an adult softball field, might put him at risk of violating G.S. 14-208.18(a)(3). State v. Daniels, 224 N.C. App. 608, 741 S.E.2d 354, 2012 N.C. App. LEXIS 1478 (2012).

Trial court’s ruling that G.S. 14-208.18(a)(2) was unconstitutional was void, as it lacked subject matter jurisdiction to make that ruling because defendant was indicted only on charges of violating G.S. 14-208.18(a)(3), and the two provisions were severable. State v. Daniels, 224 N.C. App. 608, 741 S.E.2d 354, 2012 N.C. App. LEXIS 1478 (2012).

Court permanently enjoined enforcement of portions of North Carolina statute that restricted movement of sex offenders relative to certain locations where minors might be present because subsection restricting sex offender from being at any place where minors gathered for regularly scheduled educational, recreational, or social programs, was unconstitutionally vague as neither ordinary citizen nor law enforcement officer could reasonably determine what activity was criminalized, and subsection that restricted sex offenders from being on premises of any place intended primarily for use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds was unconstitutionally overbroad as it applied to all restricted sex offenders, not just those who posed danger to minors or were likely to pose such danger. Doe v. Cooper, 842 F.3d 833, 2016 U.S. App. LEXIS 21412 (4th Cir. 2016).

G.S. 14-208.18(a)(2), which prohibits sex offenders from being within 300 feet a location intended primarily for the use, care, or supervision of minors, when such places are located in malls, shopping centers, and other properties open to the general public, is unconstitutional. State v. Anderson, 254 N.C. App. 765, 804 S.E.2d 189, 2017 N.C. App. LEXIS 625 (2017).

Appellate court agreed with defendant’s contention that his guilty plea to unlawfully being within 300 feet of a daycare had to be vacated due to the Fourth Circuit’s opinion ruling G.S. 14-208.18(a)(2) unconstitutional. State v. Anderson, 254 N.C. App. 765, 804 S.E.2d 189, 2017 N.C. App. LEXIS 625 (2017).

G.S. 14-208.18(a)(2) was unconstitutionally overbroad in violation of First Amendment because it could not be concluded that adult-victim offenders constituted risk to minors that was real rather than conjectural, and thus, defendants had not carried their burden of showing that G.S. 14-208.18(a)(2) furthered state’s interest in protecting minors from sexual crimes without burdening substantially more First Amendment activity than necessary. Doe v. Cooper, 2016 U.S. Dist. LEXIS 53869 (M.D.N.C. Apr. 22, 2016).

Two parts of a statute governing access of restricted sex offenders to certain places, G.S. 14-208.18(a)(1) and (a)(2), were not unconstitutionally vague; however, G.S. 14-208.18(a)(3) was unconstitutionally vague due to its use of the phrases “regularly scheduled” activities for minors and “where minors gather,” and its enforcement was enjoined. Whether G.S. 14-208.18(a)(2) was overbroad because it applied to offenders whose crimes did not necessarily involve a minor was reserved for trial. Doe v. Cooper, 148 F. Supp. 3d 477, 2015 U.S. Dist. LEXIS 163496 (M.D.N.C. 2015).

Severability. —

When enacting G.S. 14-208.18(a), the general assembly intended to provide for three separate and independent offenses, none dependent on the other; therefore, G.S. 14-208.18(a)(1), (a)(2) and (a)(3) are divisible and severable. State v. Daniels, 224 N.C. App. 608, 741 S.E.2d 354, 2012 N.C. App. LEXIS 1478 (2012).

Indictment. —

Although defendant claimed the indictment charging him with violating G.S. 14-208.18 failed to clearly and lucidly allege he “went” onto the premises of a school, the absence of word “went” did not render the indictment unclear because the challenged language, taken in context, sufficiently apprised defendant that he was alleged to have entered the grounds of a school. State v. Harris, 219 N.C. App. 590, 724 S.E.2d 633, 2012 N.C. App. LEXIS 444 (2012).

Although defendant claimed the indictment charging him with violating G.S. 14-208.18 failed to allege he “knowingly” went onto school grounds, the indictment was sufficient because the indictment stated that defendant acted “willfully” and the term willfully implied the act was done knowingly. State v. Harris, 219 N.C. App. 590, 724 S.E.2d 633, 2012 N.C. App. LEXIS 444 (2012).

Indictment charging defendant with violating G.S. 14-208.18 was insufficient to confer subject matter jurisdiction upon a trial court because the indictment simply alleged that defendant was a “registered sex offender” and did not allege that he had been convicted of an offense enumerated in N.C. Gen. Stat. ch. 14, art. 7A or an offense involving a victim who was under 16 years of age at the time of the offense as required by G.S. 14-208.18 (a); thus, the indictment returned against defendant failed to allege every essential element of the criminal offense it purported to charge. State v. Harris, 219 N.C. App. 590, 724 S.E.2d 633, 2012 N.C. App. LEXIS 444 (2012).

Appellate court lacked jurisdiction to consider whether a trial court erred in finding certain portions of G.S. 14-208.18 unconstitutional because an indictment charging defendant was insufficient; the use of the word “unlawfully” and the sentence “this act was in violation of the law referenced above” did not provide notice of the nature of defendant’s unlawful conduct. State v. Herman, 221 N.C. App. 204, 726 S.E.2d 863, 2012 N.C. App. LEXIS 717 (2012).

“Knowing” Violation. —

When defendant was prosecuted for being a sex offender unlawfully on prohibited premises, sufficient evidence showed defendant’s “knowing” violation because (1) the State did not have to show minors were present on the premises when defendant was present, and (2) the evidence showed defendant knew a child care facility was operated on the premises. State v. Fryou, 244 N.C. App. 112, 780 S.E.2d 152, 2015 N.C. App. LEXIS 952 (2015).

Premises. —

For a restricted sex offender to be in violation of G.S. 14-208.18(a)(1), the sex offender must knowingly be on the premises of any place intended primarily for the use, care, or supervision of minors. A parking lot shared with other businesses (especially with no designation that certain spaces belong to a particular business) cannot constitute “premises” as set forth in G.S. 14-208.18(a)(1). State v. Anderson, 254 N.C. App. 765, 804 S.E.2d 189, 2017 N.C. App. LEXIS 625 (2017).

When defendant was prosecuted for being a sex offender unlawfully on prohibited premises, defendant had no standing to claim the statute was overbroad because (1) defendant’s claims unrelated to speech or expression did not qualify defendant for expanded First Amendment standing, and (2) defendant raised no other constitutional right. State v. Fryou, 244 N.C. App. 112, 780 S.E.2d 152, 2015 N.C. App. LEXIS 952 (2015).

When defendant was prosecuted for being a sex offender unlawfully on prohibited premises, defendant’s vagueness claim based on the use of the premises at which defendant was present as both a church and a child care facility failed because G.S. 14-208.18(a)(2) barred defendant’s presence at any premises containing a facility used to supervise minors, even if the facility was not operating when defendant was present. State v. Fryou, 244 N.C. App. 112, 780 S.E.2d 152, 2015 N.C. App. LEXIS 952 (2015).

Jury Question. —

When defendant was prosecuted for being a sex offender unlawfully on prohibited premises, whether the victim of defendant’s prior qualifying crime was under 16 was properly held to be a jury question because this was a fact question separate from defendant’s prior conviction that had to be determined. State v. Fryou, 244 N.C. App. 112, 780 S.E.2d 152, 2015 N.C. App. LEXIS 952 (2015).

§ 14-208.19. Community and public notification.

The licensee for each licensed day care center and the principal of each elementary school, middle school, and high school shall register with the North Carolina Sex Offender and Public Protection Registry to receive e-mail notification when a registered sex offender moves within a one-mile radius of the licensed day care center or school.

History. 2008-117, s. 13.

Editor’s Note.

Session Laws 2008-117, s. 13, enacted this section as G.S. 14-208.25 A. It has been recodified as 14-208.19 at the direction of the Revisor of Statutes.

Legal Periodicals.

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

§ 14-208.19A. Commercial drivers license restrictions.

  1. The Division of Motor Vehicles, in compliance with G.S. 20-37.14 A, shall not issue or renew a commercial drivers license with a P or S endorsement to any person required to register under this Article.
  2. The Division of Motor Vehicles, in compliance with G.S. 20-37.13(f) shall not issue a commercial driver learner’s permit with a P or S endorsement to any person required to register under this Article.
  3. A person who is convicted of a violation that requires registration under Article 27A of Chapter 14 of the General Statutes is disqualified under G.S. 20-17.4 from driving a commercial motor vehicle that requires a commercial drivers license with a P or S endorsement for the period of time during which the person is required to maintain registration under Article 27A of Chapter 14 of the General Statutes.
  4. A person who drives a commercial passenger vehicle or a school bus and who does not have a commercial drivers license with a P or S endorsement because the person was convicted of a violation that requires registration under Article 27A of Chapter 14 of the General Statutes shall be punished as provided by G.S. 20-27.1 .

History. 2009-491, s. 1.

Editor’s Note.

Session Laws 2009-491, s. 1, enacted this section as G.S. 14-208.19 . It has been renumbered as this section at the direction of the Revisor of Statutes.

Session Laws 2009-491, s. 7, provides: “This act becomes effective December 1, 2009. This act applies to persons whose initial registration under Article 27A of Chapter 14 of the General Statutes occurs on or after December 1, 2009, and to persons who are registered under Article 27A of Chapter 14 of the General Statutes prior to December 1, 2009, and continue to be registered on or after December 1, 2009. The criminal penalties enacted by this act apply to offenses occurring on or after December 1, 2009.”

Part 3. Sexually Violent Predator Registration Program.

§ 14-208.20. Sexually violent predator determination; notice of intent; presentence investigation. [Effective until January 1, 2023]

  1. When a person is charged by indictment or information with the commission of a sexually violent offense, the district attorney shall decide whether to seek classification of the offender as a sexually violent predator if the person is convicted. If the district attorney intends to seek the classification of a sexually violent predator, the district attorney shall within the time provided for the filing of pretrial motions under G.S. 15A-952 file a notice of the district attorney’s intent. The court may for good cause shown allow late filing of the notice, grant additional time to the parties to prepare for trial, or make other appropriate orders.
  2. Prior to sentencing a person as a sexually violent predator, the court shall order a presentence investigation in accordance with G.S. 15A-1332(c). However, the study of the defendant and whether the defendant is a sexually violent predator shall be conducted by a board of experts selected by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. The board of experts shall be composed of at least four people. Two of the board members shall be experts in the field of the behavior and treatment of sexual offenders, one of whom shall be selected from a panel of experts in those fields provided by the North Carolina Medical Society and not employed with the Division of Adult Correction and Juvenile Justice of the Department of Public Safety or employed on a full-time basis with any other State agency. One of the board members shall be a victims’ rights advocate, and one of the board members shall be a representative of law enforcement agencies.
  3. When the defendant is returned from the presentence commitment, the court shall hold a sentencing hearing in accordance with G.S. 15A-1334 . At the sentencing hearing, the court shall, after taking the presentencing report under advisement, make written findings as to whether the defendant is classified as a sexually violent predator and the basis for the court’s findings.

History. 1997-516, s. 1; 2001-373, s. 6; 2011-145, s. 19.1(h); 2017-186, s. 2(r).

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2017-186, s. 2(r), effective December 1, 2017, inserted “and Juvenile Justice” twice in subsection (b).

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 417.

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

CASE NOTES

Effect of Sexually Violent Predator Classification on Sentencing Issues. —

While G.S. 14.208.6(6) provides a definition for a sexually violent predator, nothing in that statute, nor in G.S. 14.208.20 regarding the procedure for determining if an individual is a sexually violent predator, or G.S. 14.208.23 and G.S. 14.208.6A regarding sex offender registration, sets out any sentencing implications that would allow a trial court to extend a defendant’s sentence on a rape charge beyond the presumptive range for that crime; thus, a trial court’s labeling of defendant as a “predator” was not a proper factor in enhancing defendant’s rape conviction sentence. State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697, 2004 N.C. App. LEXIS 1779 (2004), aff'd in part and rev'd in part, 360 N.C. 145 , 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005), dismissed, 379 N.C. 672 , 865 S.E.2d 847, 2021 N.C. LEXIS 1231 (2021).

§ 14-208.20. Sexually violent predator determination; notice of intent; presentence investigation. [Effective January 1, 2023]

  1. When a person is charged by indictment or information with the commission of a sexually violent offense, the district attorney shall decide whether to seek classification of the offender as a sexually violent predator if the person is convicted. If the district attorney intends to seek the classification of a sexually violent predator, the district attorney shall within the time provided for the filing of pretrial motions under G.S. 15A-952 file a notice of the district attorney’s intent. The court may for good cause shown allow late filing of the notice, grant additional time to the parties to prepare for trial, or make other appropriate orders.
  2. Prior to sentencing a person as a sexually violent predator, the court shall order a presentence investigation in accordance with G.S. 15A-1332(c). However, the study of the defendant and whether the defendant is a sexually violent predator shall be conducted by a board of experts selected by the Division of Prisons of the Department of Adult Correction. The board of experts shall be composed of at least four people. Two of the board members shall be experts in the field of the behavior and treatment of sexual offenders, one of whom shall be selected from a panel of experts in those fields provided by the North Carolina Medical Society and not employed with the Division of Prisons of the Department of Adult Correction or employed on a full-time basis with any other State agency. One of the board members shall be a victims’ rights advocate, and one of the board members shall be a representative of law enforcement agencies.
  3. When the defendant is returned from the presentence commitment, the court shall hold a sentencing hearing in accordance with G.S. 15A-1334 . At the sentencing hearing, the court shall, after taking the presentencing report under advisement, make written findings as to whether the defendant is classified as a sexually violent predator and the basis for the court’s findings.

History. 1997-516, s. 1; 2001-373, s. 6; 2011-145, s. 19.1(h); 2017-186, s. 2(r); 2021-180, s. 19C.9(p).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2017-186, s. 2(r), effective December 1, 2017, inserted “and Juvenile Justice” twice in subsection (b).

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” twice in subsection (b). For effective date and applicability, see editor's note.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 417.

For note, “The Peering Predator: Drone Technology Leaves Children Unprotected from Registered Sex Offenders,” see 39 Campbell L. Rev. 167 (2017).

CASE NOTES

Effect of Sexually Violent Predator Classification on Sentencing Issues. —

While G.S. 14.208.6(6) provides a definition for a sexually violent predator, nothing in that statute, nor in G.S. 14.208.20 regarding the procedure for determining if an individual is a sexually violent predator, or G.S. 14.208.23 and G.S. 14.208.6A regarding sex offender registration, sets out any sentencing implications that would allow a trial court to extend a defendant’s sentence on a rape charge beyond the presumptive range for that crime; thus, a trial court’s labeling of defendant as a “predator” was not a proper factor in enhancing defendant’s rape conviction sentence. State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697, 2004 N.C. App. LEXIS 1779 (2004), aff'd in part and rev'd in part, 360 N.C. 145 , 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005), dismissed, 379 N.C. 672 , 865 S.E.2d 847, 2021 N.C. LEXIS 1231 (2021).

§ 14-208.21. Lifetime registration procedure; application of Part 2 of this Article.

Unless provided otherwise by this Part, the provisions of Part 2 of this Article apply to a person classified as a sexually violent predator, a person who is a recidivist, or a person who is convicted of an aggravated offense. The procedure for registering as a sexually violent predator, a recidivist, or a person convicted of an aggravated offense is the same as under Part 2 of this Article.

History. 1997-516, s. 1; 2001-373, s. 7.

§ 14-208.22. Additional registration information required. [Effective until January 1, 2023]

  1. In addition to the information required by G.S. 14-208.7 , the following information shall also be obtained in the same manner as set out in Part 2 of this Article from a person who is a recidivist, who is convicted of an aggravated offense, or who is classified as a sexually violent predator:
    1. Identifying factors.
    2. Offense history.
    3. Documentation of any treatment received by the person for the person’s mental abnormality or personality disorder.
  2. The Department of Public Safety shall provide each sheriff with forms for registering persons as required by this Article.
  3. The Division of Adult Correction and Juvenile Justice of the Department of Public Safety shall also obtain the additional information set out in subsection (a) of this section and shall include this information in the prerelease notice forwarded to the sheriff or other appropriate law enforcement agency.

History. 1997-516, s. 1; 2001-373, s. 8; 2011-145, s. 19.1(h); 2014-100, s. 17.1(r); 2017-186, s. 2(s).

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” near the beginning of subsection (b).

Session Laws 2017-186, s. 2(s), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (c).

§ 14-208.22. Additional registration information required. [Effective January 1, 2023]

  1. In addition to the information required by G.S. 14-208.7 , the following information shall also be obtained in the same manner as set out in Part 2 of this Article from a person who is a recidivist, who is convicted of an aggravated offense, or who is classified as a sexually violent predator:
    1. Identifying factors.
    2. Offense history.
    3. Documentation of any treatment received by the person for the person’s mental abnormality or personality disorder.
  2. The Department of Public Safety shall provide each sheriff with forms for registering persons as required by this Article.
  3. The Division of Prisons of the Department of Adult Correction shall also obtain the additional information set out in subsection (a) of this section and shall include this information in the prerelease notice forwarded to the sheriff or other appropriate law enforcement agency.

History. 1997-516, s. 1; 2001-373, s. 8; 2011-145, s. 19.1(h); 2014-100, s. 17.1(r); 2017-186, s. 2(s); 2021-180, s. 19C.9(p).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the main volume.

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” near the beginning of subsection (b).

Session Laws 2017-186, s. 2(s), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (c).

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in subsection (c). For effective date and applicability, see editor's note.

§ 14-208.23. Length of registration.

A person who is a recidivist, who is convicted of an aggravated offense, or who is classified as a sexually violent predator shall maintain registration for the person’s life. Except as provided under G.S. 14-208.6 C, the requirement of registration shall not be terminated.

History. 1997-516, s. 1; 2001-373, s. 9.

Legal Periodicals.

For article, “Sex Crimes and Sexual Miscues: The Need for a Clearer Line Between Forcible Rape and Nonconsensual Sex,” see 42 Wake Forest L. Rev. 1087 (2007).

CASE NOTES

Required Registration in Error. —

As the trial court erred it determining that Defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to register as a sex offender for life pursuant to G.S. 14-208.23 . State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Effect of Sexually Violent Predator Classification on Sentencing Issues. —

While G.S. 14.208.6(6) provides a definition for a sexually violent predator, nothing in that statute, nor in G.S. 14.208.20 regarding the procedure for determining if an individual is a sexually violent predator, or G.S. 14.208.23 and G.S. 14.208.6A regarding sex offender registration, sets out any sentencing implications that would allow a trial court to extend a defendant’s sentence on a rape charge beyond the presumptive range for that crime; thus, a trial court’s labeling of defendant as a “predator” was not a proper factor in enhancing defendant’s rape conviction sentence. State v. Harris, 166 N.C. App. 386, 602 S.E.2d 697, 2004 N.C. App. LEXIS 1779 (2004), aff'd in part and rev'd in part, 360 N.C. 145 , 622 S.E.2d 615, 2005 N.C. LEXIS 1320 (2005), dismissed, 379 N.C. 672 , 865 S.E.2d 847, 2021 N.C. LEXIS 1231 (2021).

Lifetime Registration Improper. —

Trial court erred by concluding that attempted second-degree rape was an aggravated offense, and therefore it erred by ordering defendant to submit to lifetime satellite-based monitoring and lifetime sex offender registration. The case was remanded for an order requiring defendant to register as a sex offender for 30 years. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

Trial court erred in ordering registration for life based upon findings defendant was convicted of aggravated offenses, because neither sexual offense with a child nor sexual activity by a substitute parent were listed as aggravated offenses in this section, and without a determination that the program was a reasonable search. State v. Johnson, 253 N.C. App. 337, 801 S.E.2d 123, 2017 N.C. App. LEXIS 314 (2017).

It was error to order satellite-based monitoring and lifetime registration for defendant because the court found defendant did not fall under any of the required statutory categories. State v. Harding, 258 N.C. App. 306, 813 S.E.2d 254, 2018 N.C. App. LEXIS 245 , writ denied, 371 N.C. 450 , 817 S.E.2d 205, 2018 N.C. LEXIS 669 (2018).

State failed to prove that satellite-based monitoring (SBM) was a reasonable search of defendant under the Fourth Amendment and, while the trial court’s findings addressed the nature and purpose of SBM, they did not address the extent to which the search intruded upon reasonably privacy expectations by providing continuous, dynamic location data. State v. Grady, 259 N.C. App. 664, 817 S.E.2d 18, 2018 N.C. App. LEXIS 460 (2018), aff'd in part, modified, 372 N.C. 509 , 831 S.E.2d 542, 2019 N.C. LEXIS 799 (2019).

§ 14-208.24. Verification of registration information.

  1. The information in the county registry shall be verified by the sheriff for each registrant who is a recidivist, who is convicted of an aggravated offense, or who is classified as a sexually violent predator every 90 days after the person’s initial registration date.
  2. The procedure for verifying the information in the criminal offender registry is the same as under G.S. 14-208.9 A, except that verification shall be every 90 days as provided by subsection (a) of this section.

History. 1997-516, s. 1; 2001-373, s. 10.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

§ 14-208.25. [Repealed]

Repealed by Session Laws 2001-373, s. 11, effective October 1, 2001.

Part 4. Registration of Certain Juveniles Adjudicated for Committing Certain Offenses.

§ 14-208.26. Registration of certain juveniles adjudicated for committing certain offenses.

  1. When a juvenile is adjudicated delinquent for a violation of former G.S. 14-27.6 (attempted rape or sexual offense), G.S. 14-27.21 (first-degree forcible rape), G.S. 14-27.22 (second-degree forcible rape), G.S. 14-27.24 (first-degree statutory rape), G.S. 14-27.26 (first-degree forcible sexual offense), G.S. 14-27.27 (second-degree forcible sexual offense), or G.S. 14-27.29 (first-degree statutory sexual offense), and the juvenile was at least eleven years of age at the time of the commission of the offense, the court shall consider whether the juvenile is a danger to the community. If the court finds that the juvenile is a danger to the community, then the court shall consider whether the juvenile should be required to register with the county sheriff in accordance with this Part. The determination as to whether the juvenile is a danger to the community and whether the juvenile shall be ordered to register shall be made by the presiding judge at the dispositional hearing. If the judge rules that the juvenile is a danger to the community and that the juvenile shall register, then an order shall be entered requiring the juvenile to register. The court’s findings regarding whether the juvenile is a danger to the community and whether the juvenile shall register shall be entered into the court record. No juvenile may be required to register under this Part unless the court first finds that the juvenile is a danger to the community.A juvenile ordered to register under this Part shall register and maintain that registration as provided by this Part. (a1) For purposes of this section, a violation of any of the offenses listed in subsection (a) of this section includes all of the following: (i) the commission of any of those offenses, (ii) the attempt, conspiracy, or solicitation of another to commit any of those offenses, (iii) aiding and abetting any of those offenses.
  2. If the court finds that the juvenile is a danger to the community and must register, the presiding judge shall conduct the notification procedures specified in G.S. 14-208.8 . The chief court counselor of that district shall file the registration information for the juvenile with the appropriate sheriff.

History. 1997-516, s. 1; 1999-363, s. 2; 2012-194, s. 4(b); 2015-181, s. 33.

Effect of Amendments.

Session Laws 2012-194, s. 4(b), effective July 17, 2012, inserted “former” preceding “G.S. 14-27.6” in subsection (a).

Session Laws 2015-181, s. 33, effective December 1, 2015, substituted “violation of former G.S. 14-27.6 (attempted rape or sexual offense), G.S. 14-27.21 (first-degree forcible rape), G.S. 14-27.2 2 (second-degree forcible rape), G.S. 14-27.2 4 (first-degree statutory rape), G.S. 14-27.26 (first-degree forcible sexual offense), G.S. 14-27.27 (second-degree forcible sexual offense), or G.S. 14-27.29 (first-degree statutory sexual offense)” for “violation of G.S. 14-27.2 (first degree rape), G.S. 14-27.3 (second degree rape), G.S. 14-27.4 (first degree sexual offense), G.S. 14-27.5 (second degree sexual offense), or former G.S. 14-27.6 (attempted rape or sexual offense)” in the first sentence of subsection (a). For applicability, see editor’s note.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 417.

§ 14-208.27. Change of address.

If a juvenile who is adjudicated delinquent and required to register changes address, the juvenile court counselor for the juvenile shall provide written notice of the new address not later than the third business day after the change to the sheriff of the county with whom the juvenile had last registered. Upon receipt of the notice, the sheriff shall immediately forward this information to the Department of Public Safety. If the juvenile moves to another county in this State, the Department of Public Safety shall inform the sheriff of the new county of the juvenile’s new residence.

History. 1997-516, s. 1; 2001-490, s. 2.36; 2008-117, s. 14; 2014-100, s. 17.1(r).

Effect of Amendments.

Session Laws 2008-117, s. 14, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “the third business day” for “the tenth day.”

Session Laws 2014-100, s. 17.1(r), effective July 1, 2014, substituted “Department of Public Safety” for “Division” twice in this section.

§ 14-208.28. Verification of registration information.

The information provided to the sheriff shall be verified semiannually for each juvenile registrant as follows:

  1. Every year on the anniversary of a juvenile’s initial registration date and six months after that date, the sheriff shall mail a verification form to the juvenile court counselor assigned to the juvenile.
  2. The juvenile court counselor for the juvenile shall return the verification form to the sheriff within three business days after the receipt of the form.
  3. The verification form shall be signed by the juvenile court counselor and the juvenile and shall indicate whether the juvenile still resides at the address last reported to the sheriff. If the juvenile has a different address, then that fact and the new address shall be indicated on the form.

History. 1997-516, s. 1; 2001-490, s. 2.37; 2006-247, s. 13; 2008-117, s. 15.

Editor’s Note.

Session Laws 2006-247, s. 1(a), provided: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

This section, as amended by Session Laws 2006-247, s. 13, effective December 1, 2006, is applicable to persons for whom the period of registration would terminate on or after that date.

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.” This act became effective December 1, 2006.

Effect of Amendments.

Session Laws 2006-247, s. 13, effective December 1, 2006, and applicable to offenses committed on or after that date, inserted “and six months after that date” in subdivision (1).

Session Laws 2008-117, s. 15, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “three business days” for “10 days” in subdivision (2).

§ 14-208.29. Registration information is not public record; access to registration information available only to law enforcement agencies and local boards of education.

  1. Notwithstanding any other provision of law, the information regarding a juvenile required to register under this Part is not public record and is not available for public inspection.
  2. The registration information of a juvenile adjudicated delinquent and required to register under this Part shall be maintained separately by the sheriff and released only to law enforcement agencies and local boards of education. Registry information for any juvenile enrolled in the local school administrative unit shall be forwarded to the local board of education. Under no circumstances shall the registration of a juvenile adjudicated delinquent be included in the county or statewide registries, or be made available to the public via internet.

History. 1997-516, s. 1; 2008-117, s. 12.2.

Effect of Amendments.

Session Laws 2008-117, s. 12.2, effective December 1, 2008, and applicable to offenses committed on or after that date, added “and local boards of education” in the section heading; and inserted “and local boards of education. Registry information for any juvenile enrolled in the local school administrative unit shall be forwarded to the local board of education” in subsection (b).

§ 14-208.30. Termination of registration requirement.

The requirement that a juvenile adjudicated delinquent register under this Part automatically terminates on the juvenile’s eighteenth birthday or when the jurisdiction of the juvenile court with regard to the juvenile ends, whichever occurs first.

History. 1997-516, s. 1.

§ 14-208.31. File with Criminal Information Network.

  1. The Department of Public Safety shall include the registration information in the Criminal Information Network as set forth in G.S. 143B-905 .
  2. The Department of Public Safety shall maintain the registration information permanently even after the registrant’s reporting requirement expires; however, the records shall remain confidential in accordance with Article 32 of Chapter 7B of the General Statutes.

History. 1997-516, s. 1; 1998-202, s. 14; 2014-100, s. 17.1(aa).

Effect of Amendments.

Session Laws 2014-100, s. 17.1(aa), effective July 1, 2014, substituted “Criminal” for “Police” in the section heading and subsection (a); and substituted “Department of Public Safety” for “Division” throughout the section; and substituted “G.S. 143B-905” for “G.S. 114-10.1” in subsection (a).

§ 14-208.32. Application of Part.

This Part does not apply to a juvenile who is tried and convicted as an adult for committing or attempting to commit a sexually violent offense or an offense against a minor. A juvenile who is convicted of one of those offenses as an adult is subject to the registration requirements of Part 2 and Part 3 of this Article.

History. 1997-516, s. 1.

§§ 14-208.33 through 14-208.38.

Reserved for future codification purposes.

Legal Periodicals.

For article, “Criminalizing Buyers under Child Sex Trafficking Laws as a Critical Protection for Child Victims,” see 52 Wake Forest L. Rev. 435 (2017).

Part 5. Sex Offender Monitoring.

§ 14-208.39. Legislative finding of efficacy.

The General Assembly finds that empirical and statistical reports such as the 2015 California Study, “Does GPS Improve Recidivism among High Risk Sex Offenders? Outcomes for California’s GPS Pilot for High Risk Sex Offender Parolees,” show that sex offenders monitored with the global positioning system (GPS) are less likely than other sex offenders to receive a violation for committing a new crime, and that offenders monitored by GPS demonstrated significantly better outcomes for both increasing compliance and reducing recidivism. It is the intent of the General Assembly to protect the public from victimization. Therefore, the General Assembly recognizes that the GPS monitoring program is an effective tool to deter criminal behavior among sex offenders.

History. 2021-138, s. 18(a).

Editor’s Note.

Session Laws 2021-138, s. 18(p), made this section, as added by Session Laws 2021-138, s. 18(a), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

§ 14-208.40. Establishment of program; creation of guidelines; duties. [Effective until January 1, 2023]

  1. The Division of Adult Correction and Juvenile Justice of the Department of Public Safety shall establish a sex offender monitoring program that uses a continuous satellite-based monitoring system and shall create guidelines to govern the program. The program shall be designed to monitor three categories of offenders as follows:
    1. Any offender who is convicted of a reportable conviction as defined by G.S. 14-208.6 (4) and who is required to register under Part 3 of Article 27A of Chapter 14 of the General Statutes because the defendant is classified as a sexually violent predator, is a reoffender, or was convicted of an aggravated offense as those terms are defined in G.S. 14-208.6 and requires the highest possible level of supervision and monitoring, as determined by a court.
    2. Any offender who satisfies all of the following criteria: (i) is convicted of a reportable conviction as defined by G.S. 14-208.6(4), (ii) is required to register under Part 2 of Article 27A of Chapter 14 of the General Statutes, (iii) has committed an offense involving the physical, mental, or sexual abuse of a minor, and (iv) requires the highest possible level of supervision and monitoring, as determined by a court.
    3. Any offender who is convicted of G.S. 14-27.23 or G.S. 14-27.28 and requires the highest possible level of supervision and monitoring, as determined by a court.
  2. In developing the guidelines for the program, the Division of Adult Correction and Juvenile Justice shall require that any offender who is enrolled in the satellite-based program submit to an active continuous satellite-based monitoring program, unless an active program will not work as provided by this section. If the Division of Adult Correction and Juvenile Justice determines that an active program will not work as provided by this section, then the Division of Adult Correction and Juvenile Justice shall require that the defendant submit to a passive continuous satellite-based program that works within the technological or geographical limitations.
  3. The satellite-based monitoring program shall use a system that provides all of the following:
    1. Time-correlated and continuous tracking of the geographic location of the subject using a global positioning system based on satellite and other location tracking technology.
    2. Reporting of subject’s violations of prescriptive and proscriptive schedule or location requirements. Frequency of reporting may range from once a day (passive) to near real-time (active).
  4. The Division of Adult Correction and Juvenile Justice may contract with a single vendor for the hardware services needed to monitor subject offenders and correlate their movements to reported crime incidents. The contract may provide for services necessary to implement or facilitate any of the provisions of this Part.

History. 2006-247, s. 15(a); 2007-213, s. 1; 2007-484, s. 42(b); 2008-117, s. 16; 2011-145, s. 19.1(h); 2015-181, s. 40; 2017-186, s. 2(t); 2021-138, s. 18(c); 2021-182, s. 2(a).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 14-208.40 .

Editor’s Note.

This section was enacted as G.S. 14-208.33 by Session Laws 2006-247, s. 15(a), and was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 1(a), provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 15(j), provides: “The Department of Correction [now the Division of Adult Correction of the Department of Public Safety] shall have the program enacted by subsection (a) of this section established by January 1, 2007.”

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2006-247, s. 16, provides: “The Department of Correction [now the Division of Adult Correction of the Department of Public Safety] shall either issue an RFP prior to signing a contract, or with prior approval by the State Chief Information Officer or his designee, enter into a contract through an approved contracting alliance or consortium for a passive and active Global Positioning System. The system shall be for use as an intermediate sanction and to help supervise certain sex offenders who are placed on probation, parole, or post-release supervision. If an RFP is issued, the contract shall be awarded by October 1, 2006 for contract terms to begin January 1, 2007. The Department of Correction [now the Division of Adult Correction of the Department of Public Safety] shall report by November 1, 2006 to the Chairs of the House of Representatives and Senate Appropriations Committees and the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety on the details of the awarded contract.”

Session Laws 2006-247, s. 17, provides: “No later than January 1, 2007, the Department of Correction [now the Division of Adult Correction of the Department of Public Safety] shall develop a graduated risk assessment program that identifies, assesses, and closely monitors a high-risk sex offender who, while not classified as a sexually violent predator, a recidivist, or convicted of an aggravated offense as those terms are defined in G.S. 14-208.6 , may still require extraordinary supervision and may be placed on probation, parole, or post-release supervision only on the conditions provided in G.S. 15A-1343(b2) or G.S. 15A-1368.4(b1).”

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2021-138, s. 18(p), made the amendments to this section by Session Laws 2021-138, s. 18(c), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-182, s. 2(m), made the amendments to subsection (a) of this section by Session Laws 2021-182, s. 2(a), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Effect of Amendments.

Session Laws 2007-213, s. 1, as amended by Session Laws 2007-484, s. 42(b), effective December 1, 2007, deleted the last sentence in subdivisions (a)(1) and (a)(2), regarding lifetime monitoring.

Session Laws 2008-117, s. 16, effective December 1, 2008, and applicable to offenses committed on or after that date, in subsection (a), substituted “three categories” for “two categories”; and added subdivision (a)(3).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” and “Division of Adult Correction” for “Department.”

Session Laws 2015-181, s. 40, effective December 1, 2015, substituted “G.S. 14-27.23 or G.S. 14-27.2 8” for “G.S. 14-27.2A or G.S. 14-27.4 A” in subdivision (a)(3). For applicability, see editor’s note.

Session Laws 2017-186, s. 2(t), effective December 1, 2017, inserted “and Juvenile Justice” and similar language throughout the section.

Session Laws 2021-138, s. 18(c), in subdivision (a)(1), substituted “reoffender” for “recidivist” and “G.S. 14-208.6 and based on the Division of Adult Correction and Juvenile Justice’s risk assessment program requires the highest possible level of supervision and monitoring” for “G.S. 14-208.6”; and in subdivision (a)(3), substituted “G.S. 14-27.28 and based on the Division of Adult Correction and Juvenile Justice’s risk assessment program requires the highest possible level of supervision and monitoring” for “G.S. 14-27.28, who shall be enrolled in the satellite-based monitoring program for the offender’s natural life upon termination of the offender’s active punishment.” For effective date and applicability, see editor’s note.

Session Laws 2021-182, s. 2(a), in subdivisions (a)(1) and (a)(3), deleted “based on the Division of Adult Correction and Juvenile Justice’s risk assessment program” preceding “requires the highest possible level” and added “as determined by a court” at the end; and, in subdivision (a)(2), substituted “(iv) requires” for “(iv) based on the Division of Adult Correction and Juvenile Justice’s risk assessment program requires” and added "as determined by a court" at the end.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For article, “Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring,” see 98 N.C.L. Rev. 717 (2020).

CASE NOTES

Constitutionality. —

Lifetime satellite-based monitoring pursuant to G.S. 14-208.40(a)(1) did not violate double jeopardy because its imposition was not a punishment. State v. Anderson, 198 N.C. App. 201, 679 S.E.2d 165, 2009 N.C. App. LEXIS 1106 (2009).

Pursuant to G.S. 14-208.40(a) , the trial court placed defendant, a repeat sex offender, on satellite based monitoring for the term of his natural life; G.S. 14-208.40(a) did not violate his constitutional right to travel, as there was no evidence in the record that this right was actually violated. State v. Manning, 221 N.C. App. 201, 727 S.E.2d 380, 2012 N.C. App. LEXIS 720 (2012).

Letter sent to defendant by the North Carolina Department of Correction pursuant to G.S. 14-208.40 adequately protected his due process rights, as 1) it stated that he met the criteria of recidivist as set out in G.S. 14-208.40(a) ; and 2) informed him of the date and place of a hearing to determine his eligibility for Satellite Based Monitoring. State v. Manning, 221 N.C. App. 201, 727 S.E.2d 380, 2012 N.C. App. LEXIS 720 (2012).

Subjecting defendant to satellite-based monitoring after defendant was sentenced was not an ex post facto violation because: (1) the North Carolina Supreme Court had expressly held to the contrary; and (2) a decision of the U.S. Supreme Court that GPS monitoring was a Fourth Amendment “search” did not require a different conclusion. State v. Jones, 231 N.C. App. 123, 750 S.E.2d 883, 2013 N.C. App. LEXIS 1233 (2013).

Subjecting defendant to satellite-based monitoring (SBM) was not an unreasonable search or seizure because the North Carolina Court of Appeals was bound by that Court’s prior decision to the contrary, since a decision of the U.S. Supreme Court that GPS monitoring was a Fourth Amendment “search,” made in the context of a motion to suppress, was distinguishable from defendant’s case involving a civil SBM proceeding. State v. Jones, 231 N.C. App. 123, 750 S.E.2d 883, 2013 N.C. App. LEXIS 1233 (2013).

Trial court did not err in imposing upon defendant enrollment in a satellite-based monitoring (SBM) program for the defendant’s natural life because continuous monitoring did not violate the defendant’s substantive due process rights, and the monitoring was rationally related to a legitimate governmental purpose; defendant’s participation in an SBM program following the defendant’s conviction for an aggravated offense, forcible rape, did not infringe upon any fundamental right, and by statute, the defendant was subject to SBM for life. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

Satellite-based monitoring of a recidivist sex offender constituted a search within the scope of constitutional protection, since attaching a monitoring device to the offender involved physically intruding on the offender’s body without consent for purposes of obtaining information concerning the offender’s movements. Grady v. North Carolina, 575 U.S. 306, 135 S. Ct. 1368, 191 L. Ed. 2d 459, 2015 U.S. LEXIS 2124 (2015).

State’s interest in monitoring defendant via satellite based monitoring (SBM) during post-release supervision was already accomplished by a mandatory condition of post-release supervision imposing that very thing, and thus the State failed to show that the 30-year term of SBM imposed was effective to serve legitimate interests; this constituted an unreasonable warrantless search in violation of the Fourth Amendment and the imposition of SBM was unconstitutional as applied to defendant. State v. Griffin, 270 N.C. App. 98, 840 S.E.2d 267, 2020 N.C. App. LEXIS 139 (2020).

Search effected by the imposition of lifetime satellite-based monitoring (SBM) on the category of aggravated offenders is reasonable under the Fourth Amendment; therefore, the SBM statute as applied to aggravated offenders is not unconstitutional. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) is clearly constitutionally reasonable during a defendant’s post-release supervision period because the SBM program serves a legitimate government interest; imposing lifetime SBM upon aggravated offenders serves the General Assembly’s stated purpose by assisting law enforcement agencies in solving crimes, and SBM also serves the State’s interest in protecting the public from aggravated offenders by deterring recidivism. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Privacy intrusion effected by satellite-based monitoring (SBM) falls on the less intrusive side of the regulatory spectrum and provides information to the State that is not ordinarily required for the general public, protects the public through deterrence, and allows for termination; given the the circumstances, SBM’s collection of information regarding physical location and movements effects only an incremental intrusion into an aggravated offender’s diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Because defendant failed to demonstrate that the satellite-based monitoring (SBM) program is unconstitutional beyond reasonable doubt, the SBM order complied with N.C. Const. art. I, § 10. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) program provides a particularized procedure for imposing SBM and thus, does not violate N.C. Const. art. I, § 20, because the State may only access a defendant’s physical location as recorded by the satellite monitoring device; the SBM program does not authorize State officials to indiscriminately search unidentified individuals for unspecified items and for an indefinite period of time without stated cause or constraint. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Search arising from the satellite-based monitoring program for a limited category of aggravated offenders is reasonable under the Fourth Amendment because the purpose of the program to protect the public from sex crimes is of paramount importance, and an aggravated offender’s reasonable expectation of privacy is significantly diminished; the incremental nature of a search providing location information and the method of data collection via an ankle bracelet are more inconvenient than intrusive. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Applicability. —

Defendant was not an unsupervised recidivist subject to mandatory lifetime satellite based monitoring (SBM), but was instead a felon on post-release supervision who was convicted of an offense involving the physical, mental, or sexual abuse of a minor; therefore, he was subject to SBM and he received the benefit of a risk assessment and judicial determination of whether and for how long he would be subject to the SBM search. State v. Griffin, 270 N.C. App. 98, 840 S.E.2d 267, 2020 N.C. App. LEXIS 139 (2020).

Prior Conviction in a Recidivism Determination Does Not Have to Be for a Reportable Offense. —

Trial court properly determined that defendant was subject to satellite-based monitoring for the duration of his life when the offense on which defendant’s recidivism determination was made, taking indecent liberties with a minor, was clearly one described in G.S. 14-208.5 even though it was not reportable because it predated the act; there is nothing in the statutory language that requires that the prior conviction in a recidivism determination must be for a reportable offense, and the code is clear that the prior conviction must be for an offense that is described in the statute defining reportable offenses. State v. Wooten, 194 N.C. App. 524, 669 S.E.2d 749, 2008 N.C. App. LEXIS 2232 (2008), cert. dismissed, 363 N.C. 138 , 676 S.E.2d 308, 2009 N.C. LEXIS 269 (2009).

Sexual Battery Not an Aggravated Offense for Purposes of Satellite-Based Monitoring Finding. —

Trial court erred in determining that sexual battery under G.S. 14-27.5 A was an aggravated offense for purposes of satellite-based monitoring program under G.S. 14-208.40 B because an aggravated offense required engaging in a sexual act involving vaginal, anal, or oral penetration through the use of force, pursuant to G.S. 14-208.6(1a), and sexual battery did not require vaginal, anal, or oral penetration. State v. Brooks, 204 N.C. App. 193, 693 S.E.2d 204, 2010 N.C. App. LEXIS 822 (2010).

First-Degree Sexual Offense Not an Aggravated Offense. —

Trial court erred by concluding that defendant was subject to lifetime satellite-based monitoring by virtue of having been convicted of an “aggravated offense,” because first-degree sexual offense pursuant to G.S. 14-27.4(a)(1) did not qualify as an aggravated offense. State v. Carter, 216 N.C. App. 453, 718 S.E.2d 687, 2011 N.C. App. LEXIS 2289 (2011), rev'd, 366 N.C. 496 , 739 S.E.2d 548, 2013 N.C. LEXIS 344 (2013).

Taking Indecent Liberties With a Child. —

Defendant qualified for lifetime satellite-based monitoring because he committed a “sexually violent offense” as defined in G.S. 14-208.6(5) by being convicted of taking incident liberties with a child in violation of G.S. 14-202.1 , although the trial court erroneously found that this was an “offense against a minor.” State v. Sims, 216 N.C. App. 168, 720 S.E.2d 398, 2011 N.C. App. LEXIS 2157 (2011).

Notice of Satellite-Based Monitoring Proceedings. —

Defendant’s appellate claims that defendant received insufficient notice of satellite-based monitoring proceedings were dismissed because defendant did not include the notice defendant received in the appellate record, so the appellate court could not review the adequacy of that notice. State v. Jones, 231 N.C. App. 123, 750 S.E.2d 883, 2013 N.C. App. LEXIS 1233 (2013).

Oral Notice Insufficient for Appeal from Satellite-Based Monitoring Proceeding. —

Oral notice pursuant to N.C. R. App. P. 4(a)(1) was insufficient to confer jurisdiction on the court in a civil proceeding, and a proceeding regarding a sex offender’s eligibility for enrollment in a satellite-based monitoring (SBM) program was a civil proceeding. Therefore, defendant was required to give notice of appeal pursuant to N.C. R. App. P. 3(a) pertaining to civil proceedings. State v. Brooks, 204 N.C. App. 193, 693 S.E.2d 204, 2010 N.C. App. LEXIS 822 (2010).

Defendant Subject To Enrollment In Satellite-Based Monitoring. —

Trial court did err by concluding that defendant was subject to enrollment in satellite-based monitoring pursuant to G.S. 14-208.40(a)(2) after he pleaded guilty to statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a) because the offense of solicitation to take an indecent liberty with a minor inherently involved the physical, mental, or sexual abuse of a minor. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Order for Satellite-Based Monitoring Proper. —

Order requiring defendant to enroll in satellite-based monitoring under G.S. 14-208.40 B(1m) for the remainder of his life was proper where defendant was convicted of a reportable offense under G.S. 14-208.6(4) as his 2009 convictions for abduction of children under G.S. 14-41 fell under the offense against a minor portion of the reportable conviction definition; the trial court had determined at the sentencing hearing that defendant’s 2009 convictions were reportable offenses and that defendant was not the victims’ parent. State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Defendant was convicted of first-degree statutory rape and first-degree statutory sexual offense and those convictions qualified defendant as an aggravated offender; thus, the trial court appropriately ordered lifetime satellite-based monitoring (SBM), and because searches effected by the imposition of lifetime SBM were reasonable as applied to the aggravated offender category, the imposition of SBM did not violate the Fourth Amendment. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Defendant’s counsel conceded that satellite-based monitoring (SBM) would be appropriate during defendant’s period of parole because counsel admitted that during the time that defendant was out on parole he had a lower expectation of privacy and a diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Order for Satellite-Based Monitoring Improper. —

Trial court’s order that defendant enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A was improper because the trial court made no findings justifying the conclusion that defendant required the highest possible level of supervision and monitoring and the trial court erred by doing so; the State presented no evidence which supported a determination of a higher level of risk than the “moderate” rating assigned by the Department of Corrections, and, therefore, there was no need to remand the matter to the trial court for additional findings of fact as requested by the State. State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430, 2009 N.C. App. LEXIS 1179 (2009).

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court ordered that when he was released from custody he enroll in satellite-based monitoring for life, the trial court had not followed the required sentencing procedure set forth in G.S. 14-208.40 A because, while the trial court correctly made an initial finding that defendant had been convicted of a reportable offense pursuant to G.S. 14-208.6(4) and (5), at that point, the trial court made no findings that defendant had been convicted of an aggravated offense as required by G.S. 14-208.40 A(b). Instead, the trial court ordered a risk assessment to be completed that afternoon, if possible; the court prematurely ordered the risk assessment and improperly considered sentencing pursuant to G.S. 14-208.40A(c) and (d) simultaneously. State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Trial court erred in ordering satellite-based monitoring, because it expressly found that defendant did not fall within any of the statutorily enumerated categories of offenders requiring satellite-based monitoring (SBM) in G.S. 14-208.40 B(c), but nonetheless ordered defendant to enroll in the SBM program due to its finding that his probation had been revoked and he had failed to complete his sex offender treatment. State v. Hadden, 226 N.C. App. 330, 741 S.E.2d 466, 2013 N.C. App. LEXIS 345 (2013).

Because the State failed to demonstrate the substantial similarity of defendant’s out-of-state convictions to North Carolina crimes and since the trial court failed to determine that the out-of-state convictions were substantially similar to North Carolina offenses, the trial court’s conclusion that defendant was a recidivist was not supported by competent evidence and remand for resentencing was required. State v. Springle, 244 N.C. App. 760, 781 S.E.2d 518, 2016 N.C. App. LEXIS 55 (2016).

It was error to order defendant to enroll in satellite-based monitoring because (1) the monitoring was a search, and (2) the court did not conduct the appropriate analysis by analyzing the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intruded upon reasonable privacy expectations. State v. Blue, 246 N.C. App. 259, 783 S.E.2d 524, 2016 N.C. App. LEXIS 293 (2016).

Trial court erred in ordering that satellite-based monitoring (SBM) be imposed for the remainder of defendant’s natural life because the State was statutorily required to present to the court any evidence that defendant fell into one of the enumerated categories to impose SBM, but no evidence was presented to the trial court, upon which the trial court could have determined that defendant had obtained the required prior sexual offense convictions to be classified as a recidivist; and defense counsel’s statements and arguments did not stipulate to the prior convictions. State v. Moore, 250 N.C. App. 136, 792 S.E.2d 540, 2016 N.C. App. LEXIS 1059 (2016).

Trial court erred in imposing satellite-based monitoring (SBM) on defendant, a sex offender, for thirty years because the State failed to present any evidence that SBM was effective to protect the public from sex offenders; the intrusion of SBM on defendant was great because unlike an order for lifetime SBM, which was subject to periodic challenge and review, an order imposing SBM for a period of years was not subject to later review by the trial court. State v. Griffin, 260 N.C. App. 629, 818 S.E.2d 336, 2018 N.C. App. LEXIS 792 (2018).

Trial court erred by ordering defendant to enroll in satellite-based monitoring upon his release from prison without first holding a hearing to determine whether doing so would be in compliance with the Fourth Amendment. State v. White, 261 N.C. App. 506, 820 S.E.2d 116, 2018 N.C. App. LEXIS 904 (2018).

Order mandating that defendant enroll in lifetime satellite-based monitoring following his eventual release from prison was vacated because the State could not establish that defendant’s submission to such monitoring would constitute a reasonable Fourth Amendment search in 15 to 20 years when defendant would be released from prison. The State made no attempt to report the level of intrusion as to the information revealed under the program, and the State was unable to adequately establish the government’s need to search. State v. Gordon, 261 N.C. App. 247, 820 S.E.2d 339, 2018 N.C. App. LEXIS 889 (2018).

Trial court’s order imposing lifetime satellite-based monitoring (SBM) was unconstitutional as applied to defendant because the trial court failed to hold a Grady hearing to determine the reasonableness of SBM for defendant. State v. Ricks, 271 N.C. App. 348, 843 S.E.2d 652, 2020 N.C. App. LEXIS 354 (2020), rev'd, 378 N.C. 737 , 862 S.E.2d 835, 2021- NCSC-116, 2021 N.C. LEXIS 928 (2021).

Trial court erred by ordering lifetime satellite-based monitoring (SBM) for defendant because the State failed to carry its burden of proving SBM of defendant was a reasonable Fourth Amendment search as it failed to present any evidence regarding reasonableness. State v. Lopez, 264 N.C. App. 496, 826 S.E.2d 498, 2019 N.C. App. LEXIS 279 (2019).

Satellite-Based Monitoring for Sex Offenders. —

Unless satellite-based monitoring is found to be effective to actually serve the purpose of protecting against recidivism by sex offenders, it is impossible for the State to justify the intrusion of continuously tracking an offender’s location for any length of time, much less for thirty years. State v. Griffin, 260 N.C. App. 629, 818 S.E.2d 336, 2018 N.C. App. LEXIS 792 (2018).

§ 14-208.40. Establishment of program; creation of guidelines; duties. [Effective January 1, 2023]

  1. The Division of Community Supervision and Reentry of the Department of Public Safety shall establish a sex offender monitoring program that uses a continuous satellite-based monitoring system and shall create guidelines to govern the program. The program shall be designed to monitor three categories of offenders as follows:
    1. Any offender who is convicted of a reportable conviction as defined by G.S. 14-208.6 (4) and who is required to register under Part 3 of Article 27A of Chapter 14 of the General Statutes because the defendant is classified as a sexually violent predator, is a reoffender, or was convicted of an aggravated offense as those terms are defined in G.S. 14-208.6 and requires the highest possible level of supervision and monitoring, as determined by a court.
    2. Any offender who satisfies all of the following criteria: (i) is convicted of a reportable conviction as defined by G.S. 14-208.6(4), (ii) is required to register under Part 2 of Article 27A of Chapter 14 of the General Statutes, (iii) has committed an offense involving the physical, mental, or sexual abuse of a minor, and (iv) requires the highest possible level of supervision and monitoring, as determined by a court.
    3. Any offender who is convicted of G.S. 14-27.23 or G.S. 14-27.28 and requires the highest possible level of supervision and monitoring, as determined by a court.
  2. In developing the guidelines for the program, the Division of Community Supervision and Reentry shall require that any offender who is enrolled in the satellite-based program submit to an active continuous satellite-based monitoring program, unless an active program will not work as provided by this section. If the Division of Community Supervision and Reentry determines that an active program will not work as provided by this section, then the Division of Community Supervision and Reentry shall require that the defendant submit to a passive continuous satellite-based program that works within the technological or geographical limitations.
  3. The satellite-based monitoring program shall use a system that provides all of the following:
    1. Time-correlated and continuous tracking of the geographic location of the subject using a global positioning system based on satellite and other location tracking technology.
    2. Reporting of subject’s violations of prescriptive and proscriptive schedule or location requirements. Frequency of reporting may range from once a day (passive) to near real-time (active).
  4. The Division of Community Supervision and Reentry may contract with a single vendor for the hardware services needed to monitor subject offenders and correlate their movements to reported crime incidents. The contract may provide for services necessary to implement or facilitate any of the provisions of this Part.

History. 2006-247, s. 15(a); 2007-213, s. 1; 2007-484, s. 42(b); 2008-117, s. 16; 2011-145, s. 19.1(h); 2015-181, s. 40; 2017-186, s. 2(t); 2021-138, s. 18(c); 2021-180, s. 19C.9(u); 2021-182, s. 2(a).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 14-208.40 .

Editor’s Note.

This section was enacted as G.S. 14-208.33 by Session Laws 2006-247, s. 15(a), and was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 1(a), provides: “This act shall be known as ‘An Act To Protect North Carolina’s Children/Sex Offender Law Changes.’ ”

Session Laws 2006-247, s. 15(j), provides: “The Department of Correction [now the Division of Adult Correction of the Department of Public Safety] shall have the program enacted by subsection (a) of this section established by January 1, 2007.”

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2006-247, s. 16, provides: “The Department of Correction [now the Division of Adult Correction of the Department of Public Safety] shall either issue an RFP prior to signing a contract, or with prior approval by the State Chief Information Officer or his designee, enter into a contract through an approved contracting alliance or consortium for a passive and active Global Positioning System. The system shall be for use as an intermediate sanction and to help supervise certain sex offenders who are placed on probation, parole, or post-release supervision. If an RFP is issued, the contract shall be awarded by October 1, 2006 for contract terms to begin January 1, 2007. The Department of Correction [now the Division of Adult Correction of the Department of Public Safety] shall report by November 1, 2006 to the Chairs of the House of Representatives and Senate Appropriations Committees and the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety on the details of the awarded contract.”

Session Laws 2006-247, s. 17, provides: “No later than January 1, 2007, the Department of Correction [now the Division of Adult Correction of the Department of Public Safety] shall develop a graduated risk assessment program that identifies, assesses, and closely monitors a high-risk sex offender who, while not classified as a sexually violent predator, a recidivist, or convicted of an aggravated offense as those terms are defined in G.S. 14-208.6 , may still require extraordinary supervision and may be placed on probation, parole, or post-release supervision only on the conditions provided in G.S. 15A-1343(b2) or G.S. 15A-1368.4(b1).”

Session Laws 2006-247, s. 21, is a severability clause.

Session Laws 2006-247, s. 22, provides, in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2021-138, s. 18(p), made the amendments to this section by Session Laws 2021-138, s. 18(c), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 19C.9(u), effective January 1, 2023, amended this section in the coded bill drafting format provided by G.S. 120-20.1 by substituting “Division of Community Supervision and Reentry” for “Division of Adult Correction and Juvenile Justice” wherever it appeared. The amendment did not account for the precise language in subsection (a) of this section. At the direction of the Revisor of Statutes, “Division of Community Supervision and Reentry of the Department of Public Safety” has been substituted for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in subsection (a).

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(u), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Session Laws 2021-182, s. 2(m), made the amendments to subsection (a) of this section by Session Laws 2021-182, s. 2(a), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Effect of Amendments.

Session Laws 2007-213, s. 1, as amended by Session Laws 2007-484, s. 42(b), effective December 1, 2007, deleted the last sentence in subdivisions (a)(1) and (a)(2), regarding lifetime monitoring.

Session Laws 2008-117, s. 16, effective December 1, 2008, and applicable to offenses committed on or after that date, in subsection (a), substituted “three categories” for “two categories”; and added subdivision (a)(3).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” and “Division of Adult Correction” for “Department.”

Session Laws 2015-181, s. 40, effective December 1, 2015, substituted “G.S. 14-27.23 or G.S. 14-27.2 8” for “G.S. 14-27.2A or G.S. 14-27.4 A” in subdivision (a)(3). For applicability, see editor’s note.

Session Laws 2017-186, s. 2(t), effective December 1, 2017, inserted “and Juvenile Justice” and similar language throughout the section.

Session Laws 2021-138, s. 18(c), in subdivision (a)(1), substituted “reoffender” for “recidivist” and “G.S. 14-208.6 and based on the Division of Adult Correction and Juvenile Justice’s risk assessment program requires the highest possible level of supervision and monitoring” for “G.S. 14-208.6”; and in subdivision (a)(3), substituted “G.S. 14-27.28 and based on the Division of Adult Correction and Juvenile Justice’s risk assessment program requires the highest possible level of supervision and monitoring” for “G.S. 14-27.28, who shall be enrolled in the satellite-based monitoring program for the offender’s natural life upon termination of the offender’s active punishment.” For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(u), substituted “Division of Community Supervision and Reentry” for “Division of Adult Correction and Juvenile Justice” four times in subsection (b) and once in subsection (d). For effective date and applicability, see editor's note.

Session Laws 2021-182, s. 2(a), in subdivisions (a)(1) and (a)(3), deleted “based on the Division of Adult Correction and Juvenile Justice’s risk assessment program” preceding “requires the highest possible level” and added “as determined by a court” at the end; and, in subdivision (a)(2), substituted “(iv) requires” for “(iv) based on the Division of Adult Correction and Juvenile Justice’s risk assessment program requires” and added "as determined by a court" at the end.

Legal Periodicals.

For article, “The Least of These: A Constitutional Challenge to North Carolina’s Sexual Offender Laws and N.C. Gen. Stat. § 14-208.18,” see 33 N.C. Cent. L. Rev. 53 (2010).

For article, “Sentenced to Surveillance: Fourth Amendment Limits on Electronic Monitoring,” see 98 N.C.L. Rev. 717 (2020).

CASE NOTES

Constitutionality. —

Lifetime satellite-based monitoring pursuant to G.S. 14-208.40(a)(1) did not violate double jeopardy because its imposition was not a punishment. State v. Anderson, 198 N.C. App. 201, 679 S.E.2d 165, 2009 N.C. App. LEXIS 1106 (2009).

Pursuant to G.S. 14-208.40(a) , the trial court placed defendant, a repeat sex offender, on satellite based monitoring for the term of his natural life; G.S. 14-208.40(a) did not violate his constitutional right to travel, as there was no evidence in the record that this right was actually violated. State v. Manning, 221 N.C. App. 201, 727 S.E.2d 380, 2012 N.C. App. LEXIS 720 (2012).

Letter sent to defendant by the North Carolina Department of Correction pursuant to G.S. 14-208.40 adequately protected his due process rights, as 1) it stated that he met the criteria of recidivist as set out in G.S. 14-208.40(a) ; and 2) informed him of the date and place of a hearing to determine his eligibility for Satellite Based Monitoring. State v. Manning, 221 N.C. App. 201, 727 S.E.2d 380, 2012 N.C. App. LEXIS 720 (2012).

Subjecting defendant to satellite-based monitoring after defendant was sentenced was not an ex post facto violation because: (1) the North Carolina Supreme Court had expressly held to the contrary; and (2) a decision of the U.S. Supreme Court that GPS monitoring was a Fourth Amendment “search” did not require a different conclusion. State v. Jones, 231 N.C. App. 123, 750 S.E.2d 883, 2013 N.C. App. LEXIS 1233 (2013).

Subjecting defendant to satellite-based monitoring (SBM) was not an unreasonable search or seizure because the North Carolina Court of Appeals was bound by that Court’s prior decision to the contrary, since a decision of the U.S. Supreme Court that GPS monitoring was a Fourth Amendment “search,” made in the context of a motion to suppress, was distinguishable from defendant’s case involving a civil SBM proceeding. State v. Jones, 231 N.C. App. 123, 750 S.E.2d 883, 2013 N.C. App. LEXIS 1233 (2013).

Trial court did not err in imposing upon defendant enrollment in a satellite-based monitoring (SBM) program for the defendant’s natural life because continuous monitoring did not violate the defendant’s substantive due process rights, and the monitoring was rationally related to a legitimate governmental purpose; defendant’s participation in an SBM program following the defendant’s conviction for an aggravated offense, forcible rape, did not infringe upon any fundamental right, and by statute, the defendant was subject to SBM for life. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

Satellite-based monitoring of a recidivist sex offender constituted a search within the scope of constitutional protection, since attaching a monitoring device to the offender involved physically intruding on the offender’s body without consent for purposes of obtaining information concerning the offender’s movements. Grady v. North Carolina, 575 U.S. 306, 135 S. Ct. 1368, 191 L. Ed. 2d 459, 2015 U.S. LEXIS 2124 (2015).

State’s interest in monitoring defendant via satellite based monitoring (SBM) during post-release supervision was already accomplished by a mandatory condition of post-release supervision imposing that very thing, and thus the State failed to show that the 30-year term of SBM imposed was effective to serve legitimate interests; this constituted an unreasonable warrantless search in violation of the Fourth Amendment and the imposition of SBM was unconstitutional as applied to defendant. State v. Griffin, 270 N.C. App. 98, 840 S.E.2d 267, 2020 N.C. App. LEXIS 139 (2020).

Search effected by the imposition of lifetime satellite-based monitoring (SBM) on the category of aggravated offenders is reasonable under the Fourth Amendment; therefore, the SBM statute as applied to aggravated offenders is not unconstitutional. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) is clearly constitutionally reasonable during a defendant’s post-release supervision period because the SBM program serves a legitimate government interest; imposing lifetime SBM upon aggravated offenders serves the General Assembly’s stated purpose by assisting law enforcement agencies in solving crimes, and SBM also serves the State’s interest in protecting the public from aggravated offenders by deterring recidivism. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Privacy intrusion effected by satellite-based monitoring (SBM) falls on the less intrusive side of the regulatory spectrum and provides information to the State that is not ordinarily required for the general public, protects the public through deterrence, and allows for termination; given the the circumstances, SBM’s collection of information regarding physical location and movements effects only an incremental intrusion into an aggravated offender’s diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Because defendant failed to demonstrate that the satellite-based monitoring (SBM) program is unconstitutional beyond reasonable doubt, the SBM order complied with N.C. Const. art. I, § 10. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) program provides a particularized procedure for imposing SBM and thus, does not violate N.C. Const. art. I, § 20, because the State may only access a defendant’s physical location as recorded by the satellite monitoring device; the SBM program does not authorize State officials to indiscriminately search unidentified individuals for unspecified items and for an indefinite period of time without stated cause or constraint. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Search arising from the satellite-based monitoring program for a limited category of aggravated offenders is reasonable under the Fourth Amendment because the purpose of the program to protect the public from sex crimes is of paramount importance, and an aggravated offender’s reasonable expectation of privacy is significantly diminished; the incremental nature of a search providing location information and the method of data collection via an ankle bracelet are more inconvenient than intrusive. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Applicability. —

Defendant was not an unsupervised recidivist subject to mandatory lifetime satellite based monitoring (SBM), but was instead a felon on post-release supervision who was convicted of an offense involving the physical, mental, or sexual abuse of a minor; therefore, he was subject to SBM and he received the benefit of a risk assessment and judicial determination of whether and for how long he would be subject to the SBM search. State v. Griffin, 270 N.C. App. 98, 840 S.E.2d 267, 2020 N.C. App. LEXIS 139 (2020).

Prior Conviction in a Recidivism Determination Does Not Have to Be for a Reportable Offense. —

Trial court properly determined that defendant was subject to satellite-based monitoring for the duration of his life when the offense on which defendant’s recidivism determination was made, taking indecent liberties with a minor, was clearly one described in G.S. 14-208.5 even though it was not reportable because it predated the act; there is nothing in the statutory language that requires that the prior conviction in a recidivism determination must be for a reportable offense, and the code is clear that the prior conviction must be for an offense that is described in the statute defining reportable offenses. State v. Wooten, 194 N.C. App. 524, 669 S.E.2d 749, 2008 N.C. App. LEXIS 2232 (2008), cert. dismissed, 363 N.C. 138 , 676 S.E.2d 308, 2009 N.C. LEXIS 269 (2009).

Sexual Battery Not an Aggravated Offense for Purposes of Satellite-Based Monitoring Finding. —

Trial court erred in determining that sexual battery under G.S. 14-27.5 A was an aggravated offense for purposes of satellite-based monitoring program under G.S. 14-208.40 B because an aggravated offense required engaging in a sexual act involving vaginal, anal, or oral penetration through the use of force, pursuant to G.S. 14-208.6(1a), and sexual battery did not require vaginal, anal, or oral penetration. State v. Brooks, 204 N.C. App. 193, 693 S.E.2d 204, 2010 N.C. App. LEXIS 822 (2010).

First-Degree Sexual Offense Not an Aggravated Offense. —

Trial court erred by concluding that defendant was subject to lifetime satellite-based monitoring by virtue of having been convicted of an “aggravated offense,” because first-degree sexual offense pursuant to G.S. 14-27.4(a)(1) did not qualify as an aggravated offense. State v. Carter, 216 N.C. App. 453, 718 S.E.2d 687, 2011 N.C. App. LEXIS 2289 (2011), rev'd, 366 N.C. 496 , 739 S.E.2d 548, 2013 N.C. LEXIS 344 (2013).

Taking Indecent Liberties With a Child. —

Defendant qualified for lifetime satellite-based monitoring because he committed a “sexually violent offense” as defined in G.S. 14-208.6(5) by being convicted of taking incident liberties with a child in violation of G.S. 14-202.1 , although the trial court erroneously found that this was an “offense against a minor.” State v. Sims, 216 N.C. App. 168, 720 S.E.2d 398, 2011 N.C. App. LEXIS 2157 (2011).

Notice of Satellite-Based Monitoring Proceedings. —

Defendant’s appellate claims that defendant received insufficient notice of satellite-based monitoring proceedings were dismissed because defendant did not include the notice defendant received in the appellate record, so the appellate court could not review the adequacy of that notice. State v. Jones, 231 N.C. App. 123, 750 S.E.2d 883, 2013 N.C. App. LEXIS 1233 (2013).

Oral Notice Insufficient for Appeal from Satellite-Based Monitoring Proceeding. —

Oral notice pursuant to N.C. R. App. P. 4(a)(1) was insufficient to confer jurisdiction on the court in a civil proceeding, and a proceeding regarding a sex offender’s eligibility for enrollment in a satellite-based monitoring (SBM) program was a civil proceeding. Therefore, defendant was required to give notice of appeal pursuant to N.C. R. App. P. 3(a) pertaining to civil proceedings. State v. Brooks, 204 N.C. App. 193, 693 S.E.2d 204, 2010 N.C. App. LEXIS 822 (2010).

Defendant Subject To Enrollment In Satellite-Based Monitoring. —

Trial court did err by concluding that defendant was subject to enrollment in satellite-based monitoring pursuant to G.S. 14-208.40(a)(2) after he pleaded guilty to statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a) because the offense of solicitation to take an indecent liberty with a minor inherently involved the physical, mental, or sexual abuse of a minor. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Order for Satellite-Based Monitoring Proper. —

Order requiring defendant to enroll in satellite-based monitoring under G.S. 14-208.40 B(1m) for the remainder of his life was proper where defendant was convicted of a reportable offense under G.S. 14-208.6(4) as his 2009 convictions for abduction of children under G.S. 14-41 fell under the offense against a minor portion of the reportable conviction definition; the trial court had determined at the sentencing hearing that defendant’s 2009 convictions were reportable offenses and that defendant was not the victims’ parent. State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Defendant was convicted of first-degree statutory rape and first-degree statutory sexual offense and those convictions qualified defendant as an aggravated offender; thus, the trial court appropriately ordered lifetime satellite-based monitoring (SBM), and because searches effected by the imposition of lifetime SBM were reasonable as applied to the aggravated offender category, the imposition of SBM did not violate the Fourth Amendment. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Defendant’s counsel conceded that satellite-based monitoring (SBM) would be appropriate during defendant’s period of parole because counsel admitted that during the time that defendant was out on parole he had a lower expectation of privacy and a diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Order for Satellite-Based Monitoring Improper. —

Trial court’s order that defendant enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A was improper because the trial court made no findings justifying the conclusion that defendant required the highest possible level of supervision and monitoring and the trial court erred by doing so; the State presented no evidence which supported a determination of a higher level of risk than the “moderate” rating assigned by the Department of Corrections, and, therefore, there was no need to remand the matter to the trial court for additional findings of fact as requested by the State. State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430, 2009 N.C. App. LEXIS 1179 (2009).

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court ordered that when he was released from custody he enroll in satellite-based monitoring for life, the trial court had not followed the required sentencing procedure set forth in G.S. 14-208.40 A because, while the trial court correctly made an initial finding that defendant had been convicted of a reportable offense pursuant to G.S. 14-208.6(4) and (5), at that point, the trial court made no findings that defendant had been convicted of an aggravated offense as required by G.S. 14-208.40 A(b). Instead, the trial court ordered a risk assessment to be completed that afternoon, if possible; the court prematurely ordered the risk assessment and improperly considered sentencing pursuant to G.S. 14-208.40A(c) and (d) simultaneously. State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Trial court erred in ordering satellite-based monitoring, because it expressly found that defendant did not fall within any of the statutorily enumerated categories of offenders requiring satellite-based monitoring (SBM) in G.S. 14-208.40 B(c), but nonetheless ordered defendant to enroll in the SBM program due to its finding that his probation had been revoked and he had failed to complete his sex offender treatment. State v. Hadden, 226 N.C. App. 330, 741 S.E.2d 466, 2013 N.C. App. LEXIS 345 (2013).

Because the State failed to demonstrate the substantial similarity of defendant’s out-of-state convictions to North Carolina crimes and since the trial court failed to determine that the out-of-state convictions were substantially similar to North Carolina offenses, the trial court’s conclusion that defendant was a recidivist was not supported by competent evidence and remand for resentencing was required. State v. Springle, 244 N.C. App. 760, 781 S.E.2d 518, 2016 N.C. App. LEXIS 55 (2016).

It was error to order defendant to enroll in satellite-based monitoring because (1) the monitoring was a search, and (2) the court did not conduct the appropriate analysis by analyzing the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intruded upon reasonable privacy expectations. State v. Blue, 246 N.C. App. 259, 783 S.E.2d 524, 2016 N.C. App. LEXIS 293 (2016).

Trial court erred in ordering that satellite-based monitoring (SBM) be imposed for the remainder of defendant’s natural life because the State was statutorily required to present to the court any evidence that defendant fell into one of the enumerated categories to impose SBM, but no evidence was presented to the trial court, upon which the trial court could have determined that defendant had obtained the required prior sexual offense convictions to be classified as a recidivist; and defense counsel’s statements and arguments did not stipulate to the prior convictions. State v. Moore, 250 N.C. App. 136, 792 S.E.2d 540, 2016 N.C. App. LEXIS 1059 (2016).

Trial court erred in imposing satellite-based monitoring (SBM) on defendant, a sex offender, for thirty years because the State failed to present any evidence that SBM was effective to protect the public from sex offenders; the intrusion of SBM on defendant was great because unlike an order for lifetime SBM, which was subject to periodic challenge and review, an order imposing SBM for a period of years was not subject to later review by the trial court. State v. Griffin, 260 N.C. App. 629, 818 S.E.2d 336, 2018 N.C. App. LEXIS 792 (2018).

Trial court erred by ordering defendant to enroll in satellite-based monitoring upon his release from prison without first holding a hearing to determine whether doing so would be in compliance with the Fourth Amendment. State v. White, 261 N.C. App. 506, 820 S.E.2d 116, 2018 N.C. App. LEXIS 904 (2018).

Order mandating that defendant enroll in lifetime satellite-based monitoring following his eventual release from prison was vacated because the State could not establish that defendant’s submission to such monitoring would constitute a reasonable Fourth Amendment search in 15 to 20 years when defendant would be released from prison. The State made no attempt to report the level of intrusion as to the information revealed under the program, and the State was unable to adequately establish the government’s need to search. State v. Gordon, 261 N.C. App. 247, 820 S.E.2d 339, 2018 N.C. App. LEXIS 889 (2018).

Trial court’s order imposing lifetime satellite-based monitoring (SBM) was unconstitutional as applied to defendant because the trial court failed to hold a Grady hearing to determine the reasonableness of SBM for defendant. State v. Ricks, 271 N.C. App. 348, 843 S.E.2d 652, 2020 N.C. App. LEXIS 354 (2020), rev'd, 378 N.C. 737 , 862 S.E.2d 835, 2021- NCSC-116, 2021 N.C. LEXIS 928 (2021).

Trial court erred by ordering lifetime satellite-based monitoring (SBM) for defendant because the State failed to carry its burden of proving SBM of defendant was a reasonable Fourth Amendment search as it failed to present any evidence regarding reasonableness. State v. Lopez, 264 N.C. App. 496, 826 S.E.2d 498, 2019 N.C. App. LEXIS 279 (2019).

Satellite-Based Monitoring for Sex Offenders. —

Unless satellite-based monitoring is found to be effective to actually serve the purpose of protecting against recidivism by sex offenders, it is impossible for the State to justify the intrusion of continuously tracking an offender’s location for any length of time, much less for thirty years. State v. Griffin, 260 N.C. App. 629, 818 S.E.2d 336, 2018 N.C. App. LEXIS 792 (2018).

§ 14-208.40A. Determination of satellite-based monitoring requirement by court. [Effective until January 1, 2023]

  1. When an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), during the sentencing phase, the district attorney shall present to the court any evidence that (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20 , (ii) the offender is a reoffender, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.23 or G.S. 14-27.28 , or (v) the offense involved the physical, mental, or sexual abuse of a minor. The district attorney shall have no discretion to withhold any evidence required to be submitted to the court pursuant to this subsection.The offender shall be allowed to present to the court any evidence that the district attorney’s evidence is not correct.
  2. After receipt of the evidence from the parties, the court shall determine whether the offender’s conviction places the offender in one of the categories described in G.S. 14-208.40(a) , and if so, shall make a finding of fact of that determination, specifying whether (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20 , (ii) the offender is a reoffender, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.23 or G.S. 14-27.28 , or (v) the offense involved the physical, mental, or sexual abuse of a minor.
  3. If the court finds that the offender has been classified as a sexually violent predator, is a reoffender, has committed an aggravated offense, or was convicted of G.S. 14-27.23 or G.S. 14-27.28 , the court shall order that the Division of Adult Correction and Juvenile Justice do a risk assessment of the offender. The Division of Adult Correction and Juvenile Justice shall have up to 60 days to complete the risk assessment of the offender and report the results to the court. The Division of Adult Correction and Juvenile Justice may use a risk assessment of the offender done within six months of the date of the hearing. (c1) Upon receipt of a risk assessment from the Division of Adult Correction and Juvenile Justice pursuant to subsection (c) of this section, the court shall determine whether, based on the Division of Adult Correction and Juvenile Justice’s risk assessment and all relevant evidence, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in a satellite-based monitoring program for a period of 10 years.
  4. If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, that the offense is not an aggravated offense or a violation of G.S. 14-27.23 or G.S. 14-27.28 and the offender is not a reoffender, the court shall order that the Division of Adult Correction do a risk assessment of the offender. The Division of Adult Correction and Juvenile Justice shall have up to 60 days to complete the risk assessment of the offender and report the results to the court. The Division of Adult Correction and Juvenile Justice may use a risk assessment of the offender done within six months of the date of the hearing.
  5. Upon receipt of a risk assessment from the Division of Adult Correction and Juvenile Justice pursuant to subsection (d) of this section, the court shall determine whether, based on the Division of Adult Correction and Juvenile Justice’s risk assessment and all relevant evidence, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in a satellite-based monitoring program for a period of time to be specified by the court, not to exceed 10 years.

History. 2007-213, s. 2; 2008-117, s. 16.1; 2011-145, s. 19.1(h); 2015-181, s. 41; 2017-186, s. 2(u); 2021-138, s. 18(d); 2021-182, s. 2(b).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 14-208.40 A.

Editor’s Note.

Session Laws 2021-138, s. 18(o), provides: “The Division of Adult Correction and Juvenile Justice shall provide each elected District Attorney a list of the individuals that reside in a county in that District Attorney’s district that is subject to State v. Grady, 831 S.E.2d 542 (NC 2019), decided August 16, 2019, namely all individuals in the same category as the defendant, Mr. Grady: individuals subject to mandatory lifetime satellite-based monitoring based solely on their status as a statutorily defined ‘recidivist’ who have completed their prison sentences and are no longer supervised by the State through probation, parole, or post-release supervision. An elected District Attorney must decide to handle each case or have the Attorney General handle the case. If requested by an elected District Attorney, the Attorney General shall make a preliminary determination whether the recidivist subject to State v. Grady, may meet any requirement to enroll in a satellite-based monitoring program other than being a recidivist, and represent the State in any proceedings created by this section. Each District Attorney or Attorney General shall review the determination for every one of the class members. If the District Attorney or Attorney General makes a preliminary determination that the individual may meet any requirement to enroll in a satellite-based monitoring program other than being a recidivist, they shall notify the person and the sheriff in the county where the individual resides. The District Attorney or Attorney General may petition the court in that county for a hearing to have a judge determine if an individual subject to State v. Grady, 831 S.E.2d 542 (NC 2019), meets the criteria for satellite-based monitoring consistent with G.S. 14-208.40 A, as amended by this act.” Session Laws 2021-138, s. 18(p), made s. 18(o) of the act effective December 1, 2021, and applicable to any individual required to enroll in the satellite-based monitoring program based solely on being a “recidivist” on or after that date.

Session Laws 2021-138, s. 18(p), made the amendments to this section by Session Laws 2021-138, s. 18(d), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-182, s. 2(m), made the amendments to this section by Session Laws 2021-182, s. 2(b), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Effect of Amendments.

Session Laws 2008-117, s. 16.1, effective December 1, 2008, and applicable to offenses committed on or after that date, in subsections (a) and (b), inserted clause (iv) and renumbered former clause (iv) as clause (v); in subsection (c), inserted “or was convicted of G.S. 14-27.2 A or G.S. 14-27.4 A”; in subsection (d), inserted “or a violation of G.S. 14-27.2 A or G.S. 14-27.4 A”; and made minor stylistic changes.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department.”

Session Laws 2015-181, s. 41, effective December 1, 2015, substituted “G.S. 14-27.23 or G.S. 14-27.2 8” for “G.S. 14-27.2A or G.S. 14-27.4 A” in subsections (a) through (d). For applicability, see editor’s note.

Session Laws 2017-186, s. 2(u), effective December 1, 2017, inserted “and Juvenile Justice” in the second sentence of subsection (d) and substituted “Correction and Juvenile Justice’s” for “Correction’s” in the first sentence of subsection (e).

Session Laws 2021-138, s. 18(d), substituted “reoffender” for “recidivist” throughout; substituted “that the Division of Adult Correction and Juvenile Justice do a risk assessment of the offender. The Division of Adult Correction and Juvenile Justice shall have up to 60 days to complete the risk assessment of the offender and report the results to the court” for “the offender to enroll in a satellite-based monitoring program for life” in subsection (c); added subsection (c1); substituted “up to 60 days” for “a minimum of 30 days, but not more than 60 days” in subsection (d); substituted “court, not to exceed 10 years” for “court” in subsection (e) at the end; and made a stylistic change. For effective date and applicability, see editor’s note.

Session Laws 2021-182, s. 2(b), added the last sentence in subsections (c) and (d); in subsection (c1), substituted “assessment and all relevant evidence” for “assessment”; and, in subsection (e), substituted “assessment and all relevant evidence” for “assessment." For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina,” see 38 Campbell L. Rev. 151 (2016).

CASE NOTES

Constitutionality. —

G.S. 14-208.40 B(c) and this section were unconstitutional under the Fourth Amendment as applied to all individuals who, like defendant, were in the third Bowditch category and who were subject to mandatory lifetime satellite-based monitoring based solely on their status as a “recidivist,” and therefore the appellate court erred in limiting its holding to the constitutionality of the program as applied only to defendant. State v. Grady, 372 N.C. 509 , 831 S.E.2d 542, 2019 N.C. LEXIS 799 (2019).

State’s interest in monitoring defendant via satellite based monitoring (SBM) during post-release supervision was already accomplished by a mandatory condition of post-release supervision imposing that very thing, and thus the State failed to show that the 30-year term of SBM imposed was effective to serve legitimate interests; this constituted an unreasonable warrantless search in violation of the Fourth Amendment and the imposition of SBM was unconstitutional as applied to defendant. State v. Griffin, 270 N.C. App. 98, 840 S.E.2d 267, 2020 N.C. App. LEXIS 139 (2020).

Order for lifetime satellite-based monitoring was unconstitutional as applied to defendant because the State failed to meet its burden of establishing that it would otherwise be reasonable to grant authorities unlimited discretion to continuously and perpetually monitor defendant’s location information upon his release from prison. State v. Gordon, 270 N.C. App. 468, 840 S.E.2d 907, 2020 N.C. App. LEXIS 205 (2020).

State did not establish that defendant’s enrollment in the satellite based monitoring (SBM) program for the remainder of his life constituted a reasonable Fourth Amendment search; defendant was ordered to enroll due to his offenses in violation of G.S. 14-27.28 , there was no evidence to support the State’s need to perpetually monitor defendant, who would be at least 89 years old upon his release, and the State failed to show how monitoring his movements for the rest of his life would deter future offenses. State v. Thompson, 273 N.C. App. 686, 852 S.E.2d 365, 2020 N.C. App. LEXIS 706 (2020).

Search effected by the imposition of lifetime satellite-based monitoring (SBM) on the category of aggravated offenders is reasonable under the Fourth Amendment; therefore, the SBM statute as applied to aggravated offenders is not unconstitutional. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) is clearly constitutionally reasonable during a defendant’s post-release supervision period because the SBM program serves a legitimate government interest; imposing lifetime SBM upon aggravated offenders serves the General Assembly’s stated purpose by assisting law enforcement agencies in solving crimes, and SBM also serves the State’s interest in protecting the public from aggravated offenders by deterring recidivism. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Privacy intrusion effected by satellite-based monitoring (SBM) falls on the less intrusive side of the regulatory spectrum and provides information to the State that is not ordinarily required for the general public, protects the public through deterrence, and allows for termination; given the the circumstances, SBM’s collection of information regarding physical location and movements effects only an incremental intrusion into an aggravated offender’s diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Because defendant failed to demonstrate that the satellite-based monitoring (SBM) program is unconstitutional beyond reasonable doubt, the SBM order complied with N.C. Const. art. I, § 10. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) program provides a particularized procedure for imposing SBM and thus, does not violate N.C. Const. art. I, § 20, because the State may only access a defendant’s physical location as recorded by the satellite monitoring device; the SBM program does not authorize State officials to indiscriminately search unidentified individuals for unspecified items and for an indefinite period of time without stated cause or constraint. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Search arising from the satellite-based monitoring program for a limited category of aggravated offenders is reasonable under the Fourth Amendment because the purpose of the program to protect the public from sex crimes is of paramount importance, and an aggravated offender’s reasonable expectation of privacy is significantly diminished; the incremental nature of a search providing location information and the method of data collection via an ankle bracelet are more inconvenient than intrusive. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Applicability. —

Although State v. Kilby, 679 S.E.2d 430 involved G.S. 14-208.40 B, the satellite-based monitoring (SBM) statute that applied when an offender was convicted of a reportable offense in the past, but the trial court had not previously determined whether the offender should be required to enroll in an SBM program, the analysis in Kilby was equally applicable to defendant’s case under G.S. 14-208.40 A. State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262, 2009 N.C. App. LEXIS 1569 (2009).

Neither the North Carolina Department of Correction nor the trial court was responsible for any type of notice regarding defendant’s eligibility for satellite-based monitoring (SBM) because G.S. 14-208.40 A was the applicable statute for determining his eligibility for enrollment in SBM and the time period of his enrollment since when defendant entered an Alford plea to four counts of taking indecent liberties with a minor in violation of G.S. 14-27.7 A(a), he was newly convicted of a reportable conviction. since defendant was placed on probation and, as a condition of his probation, was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40 A, not G.S. 14-208.40B. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

General Assembly has determined that an offender convicted of a particular classification of crimes is to be subject to lifetime satellite-based monitoring; implicit in this statutory scheme is a recognition of an offender’s risk of re-offending if he or she has committed a certain type of offense. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

Because defendant’s conviction for statutory rape, based upon acts committed in 2005, could not be considered a reportable conviction, defendant was not eligible for satellite-based monitoring for the offense. State v. Kpaeyeh, 246 N.C. App. 694, 784 S.E.2d 582, 2016 N.C. App. LEXIS 363 (2016).

Defendant was not an unsupervised recidivist subject to mandatory lifetime satellite based monitoring (SBM), but was instead a felon on post-release supervision who was convicted of an offense involving the physical, mental, or sexual abuse of a minor; therefore, he was subject to SBM and he received the benefit of a risk assessment and judicial determination of whether and for how long he would be subject to the SBM search. State v. Griffin, 270 N.C. App. 98, 840 S.E.2d 267, 2020 N.C. App. LEXIS 139 (2020).

Jurisdiction To Determine Eligibility For Satellite-Based Monitoring. —

Trial court properly exercised subject matter jurisdiction pursuant to G.S. 14-208.40 A and followed the proper hearing procedures in assessing defendant’s eligibility for satellite-based monitoring because the trial court determined that defendant was convicted of a reportable offense, statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a), considered the assessment prepared by the North Carolina Department of Correction and the testimony of the witnesses; the General Assembly devised a separate procedure for determining eligibility for satellite-based monitoring and clearly granted the superior courts subject matter jurisdiction to conduct these determinations pursuant to specific statutory procedures. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Reportable Offense. —

Trial court erred in finding that defendant had been convicted of an offense against a minor where defendant was convicted of taking indecent liberties with a child as G.S. 14-208.6(1m) defined an offense against a minor as requiring a conviction of kidnapping, child abduction, or felonious restraint; however, taking indecent liberties with a child was a reportable conviction under G.S. 14-208.40 A(a) and G.S. 14-208.40 B(a) as it was a sexually violent offense under G.S. 14-208.6(5), and was grounds for imposition of satellite-based monitoring, assuming all other requirements are met. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Additional Findings. —

Purpose of allowing the trial court to make additional findings at a G.S. 14-208.40 A hearing is to permit the trial court to consider factors not part of the STATIC-99 assessment, and where an offender is determined to pose only a low or moderate risk of reoffending, the State must offer additional evidence, and the trial court make additional findings, in order to justify a maximum satellite-based monitoring sentence; these additional findings cannot be based upon factors explicitly considered in the STATIC-99 assessment. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Order for Satellite-Based Monitoring Proper. —

As the essential elements of second-degree rape were covered by the plain language of “aggravated offense” as defined by G.S. 14-208.6(1a), second-degree rape was an “aggravated offense,” and the trial court did not err in ordering defendant to lifetime satellite-based monitoring pursuant to G.S. 14-208.40 A. State v. McCravey, 203 N.C. App. 627, 692 S.E.2d 409, 2010 N.C. App. LEXIS 722 (2010).

Trial court’s order was sufficient to require defendant’s enrollment in lifetime satellite-based monitoring (SBM) because the order fully complied with the requirements set forth in G.S. 14-208.40 A, and defendant was convicted of a reportable conviction as defined by G.S. 14-208.6(4) since he pleaded guilty to two counts of taking indecent liberties with a child in violation of G.S. 14-202.1 ; at sentencing, the State presented to the trial court evidence that defendant was a recidivist, and pursuant to G.S. 14-208.40 A(c), because the trial court found that defendant was a recidivist, it ordered him to enroll in SBM for life. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

Defendant’s enrollment in lifetime satellite-based monitoring (SBM) pursuant to pursuant to G.S. 14-208.40 A(c) did not violate the prohibitions against ex post facto laws because SBM was a civil remedy. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

Defendant’s enrollment in lifetime satellite-based monitoring (SBM) pursuant to pursuant to G.S. 14-208.40 A(c) did not violate the prohibitions against double jeopardy because defendant’s enrollment in SBM was not punishment. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

In a proceeding under G.S. 14-208.40 A, an order enrolling defendant in a satellite-based monitoring system was supported by a trial court’s findings despite defendant’s moderate-low risk assessment from the Department of Correction due to the especially young age of defendant’s victims and the fact that defendant failed to get recommended sex offender treatment. State v. Green, 211 N.C. App. 599, 710 S.E.2d 292, 2011 N.C. App. LEXIS 901 (2011).

Imposition of lifetime satellite-based monitoring was appropriate because defendant was convicted of first-degree rape, which required vaginal penetration; without engaging in an improper examination of the facts giving rise to the crimes for which defendant was convicted, the trial court could have ascertained that both vaginal penetration and force were involved. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Trial court did not err in imposing upon the defendant enrollment in a satellite-based monitoring (SBM) program for the defendant’s natural life because continuous monitoring did not violate the defendant’s substantive due process rights, and the monitoring was rationally related to a legitimate governmental purpose; defendant’s participation in an SBM program following the defendant’s conviction for an aggravated offense, forcible rape, did not infringe upon any fundamental right, and by statute, the defendant was subject to SBM for life. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

Trial court found that defendant had been convicted of a sexually violent offense involving the abuse of a minor, and though the trial court neglected to check the box, it did write on the line that the satellite based monitoring period would be 10 years, which was not significantly burdensome, especially given that he was already subject to post-release supervision by the State for half of that time period; no reversible error was found. State v. Thompson, 273 N.C. App. 686, 852 S.E.2d 365, 2020 N.C. App. LEXIS 706 (2020).

Because defendant was convicted of three aggravated offenses (two counts of first-degree sexual offense with a child and the one count of first-degree rape), the trial court was statutorily required to order him to enroll in a satellite-based monitoring (SBM) program for life. Further, counsel was not ineffective because the search effected by the imposition of lifetime SBM, as applied to the category of defendants that defendant fell in, was reasonable. State v. Perkins, 2022- NCCOA-38, 2022 N.C. App. LEXIS 36 (N.C. Ct. App. Jan. 18, 2022).

Defendant was convicted of first-degree statutory rape and first-degree statutory sexual offense and those convictions qualified defendant as an aggravated offender; thus, the trial court appropriately ordered lifetime satellite-based monitoring (SBM), and because searches effected by the imposition of lifetime SBM were reasonable as applied to the aggravated offender category, the imposition of SBM did not violate the Fourth Amendment. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Court of appeals abused its discretion when it allowed defendant’s petition for writ of certiorari and invoked N.C. R. Civ. P. 2 to review satellite-based monitoring (SBM) orders because defendant failed to demonstrate any manifest injustice, and his petition showed no merit; the trial court followed the statute by ordering lifetime SBM due to defendant’s status as an aggravated offender, and absent an objection, it was under no constitutional requirement to inquire into reasonableness. State v. Ricks, 2021-NCSC-116, 378 N.C. 737 , 862 S.E.2d 835, 2021- NCSC-116, 2021 N.C. LEXIS 928 (2021).

Defendant’s counsel conceded that satellite-based monitoring (SBM) would be appropriate during defendant’s period of parole because counsel admitted that during the time that defendant was out on parole he had a lower expectation of privacy and a diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Where the trial court imposed lifetime satellite-based monitoring on defendant convicted of a sexual offense with a child under the age of thirteen, the monitoring was constitutionally reasonable under the Fourth Amendment due to his long-standing and persistent tendency for sexual abuse, his disposition as a reoffender, and his sex offender registry violations. State v. Carter, 2022-NCCOA-262, 2022 N.C. App. LEXIS 266 (April 19, 2022).

Order for Satellite-Based Monitoring Improper. —

Trial court’s order that defendant enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A was improper because the trial court made no findings justifying the conclusion that defendant required the highest possible level of supervision and monitoring and the trial court erred by doing so; the State presented no evidence which supported a determination of a higher level of risk than the “moderate” rating assigned by the Department of Corrections, and, therefore, there was no need to remand the matter to the trial court for additional findings of fact as requested by the State. State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430, 2009 N.C. App. LEXIS 1179 (2009).

After defendant’s guilty plea to taking indecent liberties with a child, enrolling defendant in a satellite-based monitoring program was improper because, pursuant to G.S. 14-208.40 A(d), the Department of Corrections assessed defendant as a moderate risk and no evidence supported the court’s findings of a higher level of risk or the requirement of the highest possible level of supervision and monitoring. State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262, 2009 N.C. App. LEXIS 1569 (2009).

Trial court erred in ordering lifetime satellite based monitoring for defendant because it did not follow the procedures in G.S. 14-208.40 A, and the finding that defendant had committed offenses against a minor was in error since defendant was not convicted of any of the offenses listed in G.S. 14-208.6(1i) and was the minor’s adoptive parent; upon the determination that defendant was convicted of an offense involving the physical, mental, or sexual abuse of a minor, the trial court had to then order the Department of Correction to perform a risk assessment pursuant to G.S. 14-208.40 A(d), and the trial court erred by not ordering that risk assessment of defendant. State v. Smith, 201 N.C. App. 681, 687 S.E.2d 525, 2010 N.C. App. LEXIS 24 (2010).

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court’s conclusion that defendant committed an aggravated offense was based in part upon defendant’s colloquy at trial, when making a determination pursuant to G.S. 14-208.40 A, the trial court was only to consider the elements of the offense of which defendant was convicted and was not to consider the underlying factual scenario giving rise to the conviction. Neither attempted first-degree sex offense nor taking indecent liberties with a child was an aggravated offense within the meaning of G.S. 14-208.6(1a). State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court ordered that when he was released from custody he enroll in satellite-based monitoring for life, the trial court had not followed the required sentencing procedure set forth in G.S. 14-208.40 A because, while the trial court correctly made an initial finding that defendant had been convicted of a reportable offense pursuant to G.S. 14-208.6(4) and (5), at that point, the trial court made no findings that defendant had been convicted of an aggravated offense as required by G.S. 14-208.40 A(b). Instead, the trial court ordered a risk assessment to be completed that afternoon, if possible; the court prematurely ordered the risk assessment and improperly considered sentencing pursuant to G.S. 14-208.40A(c) and (d) simultaneously. State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

Defendant’s conviction for taking indecent liberties with a child, a violation of G.S. 14-202.1 , was not an aggravated offense, as defined by G.S. 14-208.6(1a), and, therefore, the trial court erred in ordering defendant to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 B. State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562, 2010 N.C. App. LEXIS 34 (2010).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Imposition of satellite-based monitoring was improper as the trial court did not determine whether defendant was a sexually violated predator or recidivist, and a Department of Correction assessment was not performed. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335, 2010 N.C. App. LEXIS 2362 (2010).

Order enrolling defendant in satellite-based monitoring (SBM) at a probation violation hearing was improper because the trial court had already found that defendant was not subject to SBM at a prior hearing based on the same reportable convictions, and a second such hearing violated G.S. 14-208.40 B(a); further, there was no indication in the record that Department of Correction followed the notice requirements of G.S. 14-208.40 B(b), and the trial court failed to make the findings required by G.S. 14-208.40B(c), as a probation violation is not a crime in itself, much less a “reportable conviction” under G.S. 14-208.40B. State v. Clayton, 206 N.C. App. 300, 697 S.E.2d 428, 2010 N.C. App. LEXIS 1451 (2010).

Order pursuant G.S. 14-208.40 A(a) that defendant enroll in satellite-based monitoring for ten years after release from prison for sexual crime convictions was error because the Static 99 assessment conducted by the DOC concluded that defendant posed a “low” risk of re-offending, and there were no further findings or additional evidence; however, the state’s petition for writ of certiorari was granted, and the case was remanded to the trial court to enter an appropriate order in light of the recent case holding that second-degree rape was an aggravated offense as defined by the statute. State v. Oxendine, 206 N.C. App. 205, 696 S.E.2d 850, 2010 N.C. App. LEXIS 1450 (2010).

Trial court erred in finding that lifetime satellite-based monitoring was required for defendant and in failing to order that a risk assessment of defendant be performed pursuant to G.S. 14-208.40 A(d) prior to ordering him to enroll in a lifetime satellite-based monitoring program upon release from prison because defendant was convicted for first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1, not attempted rape of a child, pursuant to G.S. 14-27.2 A as found by the trial court; the trial court did not find that defendant was a sexually violent predator or that he was a recidivist, and it found that the offense was not an aggravated offense. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

Trial court erred in failing to follow the procedural framework set out in G.S. 14-208.40 A when it required defendant, who was convicted of violating G.S. 14-27.7(a), to register as a sex offender and enroll in satellite-based monitoring for his natural life because the trial waited to decide whether defendant fell within G.S. 14-208.40 A(b)(i) through (iv) until after it had a chance to review the risk assessment under G.S. 14-208.40A(b)(v); the trial court erred in considering the risk assessment before deciding whether defendant committed an aggravated offense, and it could not determine, based on the elements of the offense alone, that defendant engaged in a sexual act involving penetration. State v. Mann, 214 N.C. App. 155, 715 S.E.2d 213, 2011 N.C. App. LEXIS 1618 (2011).

Since only two of the trial court’s findings were supported by competent evidence, which could support findings of fact that could lead to a conclusion that defendant required the highest possible level of supervision and monitoring, it was be proper to remand the case to the trial court to consider the evidence and make additional findings; the State did not present any evidence to support the finding that the statutory sex offenses in violation of G.S. 14-27.7 A(a) occurred when other children were present in defendant’s home, and the trial court’s finding regarding defendant’s lack of remorse was unsupported by competent evidence because it was unclear whether the trial court found that defendant’s Alford plea itself showed a lack of remorse or whether defendant’s actions showed a lack of remorse. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Although defendant was properly convicted of several counts of first degree sex offense involving his ten-year-old daughter, a trial court erred by sentencing defendant to a satellite-based monitoring program for the rest of his natural life because the trial court made a finding that defendant did not require the highest level of satellite-based monitoring and supervision, pursuant to G.S. 14-208.40 A(e); the length of defendant’s prison term was not to be considered in determining whether satellite-based monitoring was required. State v. Stokes, 216 N.C. App. 529, 718 S.E.2d 174, 2011 N.C. App. LEXIS 2287 (2011).

As the trial court erred it determining that defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to enroll in lifetime satellite-based monitoring under G.S. 14-208.40 A. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Defendant’s sentence to post-release satellite-based monitoring under G.S. 14-208.40 A for taking indecent liberties was vacated where: (1) defendant’s STATIC-99 risk assessment score of zero classified him as a low risk for reoffending; (2) the trial court’s additional finding that the victim was suffering significant emotional trauma was based on unsworn statements of the victim’s mother that defendant had no opportunity to cross-examine; and (3) the STATIC-99 had taken defendant’s other sex offense and age into account, and they could not be the basis for the trial court’s additional findings. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Trial court erred in ordering satellite-based monitoring, because it expressly found that defendant did not fall within any of the statutorily enumerated categories of offenders requiring satellite-based monitoring (SBM) in G.S. 14-208.40 B(c), but nonetheless ordered defendant to enroll in the SBM program due to its finding that his probation had been revoked and he had failed to complete his sex offender treatment. State v. Hadden, 226 N.C. App. 330, 741 S.E.2d 466, 2013 N.C. App. LEXIS 345 (2013).

Trial court improperly ordered lifetime sex offender registration and satellite based monitoring, as penetration was not required for the defendant’s offense and thus, it was not an aggravated offense as defined by G.S. 14-208.6(1a). State v. Green, 229 N.C. App. 121, 746 S.E.2d 457, 2013 N.C. App. LEXIS 891 (2013).

Trial court erred in requiring defendant to enroll in satellite-based monitoring where a risk assessment placed him the moderate-high risk category, and the trial court did not make any further findings of fact as to why satellite-based monitoring was appropriate. State v. Dye, 254 N.C. App. 161, 802 S.E.2d 737, 2017 N.C. App. LEXIS 458 (2017).

Trial court erred in ordering that satellite-based monitoring (SBM) be imposed for the remainder of defendant’s natural life because the State was statutorily required to present to the court any evidence that defendant fell into one of the enumerated categories to impose SBM, but no evidence was presented to the trial court, upon which the trial court could have determined that defendant had obtained the required prior sexual offense convictions to be classified as a recidivist; and defense counsel’s statements and arguments did not stipulate to the prior convictions. State v. Moore, 250 N.C. App. 136, 792 S.E.2d 540, 2016 N.C. App. LEXIS 1059 (2016).

Trial court’s order imposing lifetime satellite-based monitoring on defendant was vacated and the case was remanded for further proceedings because the trial court was required to consider the reasonableness of the satellite-based monitoring when defendant challenged that monitoring under U.S. Const. amend. IV. State v. Stroessenreuther, 250 N.C. App. 772, 793 S.E.2d 734, 2016 N.C. App. LEXIS 1240 (2016).

Trial court erred by concluding that attempted second-degree rape was an aggravated offense, and therefore it erred by ordering defendant to submit to lifetime satellite-based monitoring and lifetime sex offender registration. The case was remanded for an order requiring defendant to register as a sex offender for 30 years. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

Because the State failed to demonstrate the substantial similarity of defendant’s out-of-state convictions to North Carolina crimes and since the trial court failed to determine that the out-of-state convictions were substantially similar to North Carolina offenses, the trial court’s conclusion that defendant was a recidivist was not supported by competent evidence and remand for resentencing was required. State v. Springle, 244 N.C. App. 760, 781 S.E.2d 518, 2016 N.C. App. LEXIS 55 (2016).

In a case challenging enrollment in satellite-based monitoring, an additional finding regarding the similarity of the victims in age and sex was not supported by competent evidence because the documents relating to such were not offered into evidence. The trial court’s additional finding that there was a short period of time between the conclusion of probation for a 1994 nonsexual offense and a 1998 sexual offense was supported by competent evidence; however, this did not support the trial court’s determination that defendant required the highest level of supervision and monitoring. State v. Jones, 234 N.C. App. 239, 758 S.E.2d 444, 2014 N.C. App. LEXIS 552 (2014).

It was error to order satellite-based monitoring and lifetime registration for defendant because the court found defendant did not fall under any of the required statutory categories. State v. Harding, 258 N.C. App. 306, 813 S.E.2d 254, 2018 N.C. App. LEXIS 245 , writ denied, 371 N.C. 450 , 817 S.E.2d 205, 2018 N.C. LEXIS 669 (2018).

Order mandating that defendant enroll in lifetime satellite-based monitoring following his eventual release from prison was vacated because the State could not establish that defendant’s submission to such monitoring would constitute a reasonable Fourth Amendment search in 15 to 20 years when defendant would be released from prison. The State made no attempt to report the level of intrusion as to the information revealed under the program, and the State was unable to adequately establish the government’s need to search. State v. Gordon, 261 N.C. App. 247, 820 S.E.2d 339, 2018 N.C. App. LEXIS 889 (2018).

Petition for writ of certiorari granted where no evidence was presented prior to or to support the trial court’s determination that defendant would be subject to satellite-based monitoring for the remainder of his life. State v. Sheridan, 263 N.C. App. 697, 824 S.E.2d 146, 2019 N.C. App. LEXIS 74 (2019).

In a challenge an order of lifetime satellite-based monitoring, the State’s evidence fell short of demonstrating what defendant’s threat of reoffending would be after having been incarcerated for roughly 15 years and thus, the finding that monitoring was justified to deter future sexual assaults was not sufficient to support the order. State v. Gordon, 270 N.C. App. 468, 840 S.E.2d 907, 2020 N.C. App. LEXIS 205 (2020).

Trial court erred by entering an order subjecting defendant to lifetime participation in the State’s satellite-based monitoring (SBM) program because the State presented no evidence on the burdens the program imposed upon participants or any data on the extent to which the program advances legitimate government interests. Rather, after taking notice of the facts and evidence adduced at trial, the trial court ignored the State’s offer to proceed introducing evidence in a Grady hearing and summarily gave its reasons for finding lifetime enrollment in the SBM program reasonable. State v. Graham, 270 N.C. App. 478, 841 S.E.2d 754, 2020 N.C. App. LEXIS 211 (2020), aff'd, 379 N.C. 75 , 863 S.E.2d 752, 2021- NCSC-125, 2021 N.C. LEXIS 1026 (2021).

Weighing the State of North Carolina’s failure to introduce any evidence showing that lifetime satellite-based monitoring (SBM) of defendant would advance its interest in reducing recidivism — or any other argued interest — against defendant’s constitutional privacy interests, the appellate court found that the imposition of lifetime SBM as to defendant was improper in that the court could not conclude that the State’s legitimate governmental concerns outweighed defendant’s cognizable privacy rights under U.S. Const. amend. IV. State v. Hutchens, 272 N.C. App. 156, 846 S.E.2d 306, 2020 N.C. App. LEXIS 462 (2020).

Because the trial court did not conduct a hearing on the issue, it erred by ordering defendant to enroll in satellite-based monitoring prior to holding the required hearing on the issue; the State presented no evidence as to defendant’s eligibility regarding monitoring, and defendant was not afforded the opportunity to present evidence contradicting the State’s evidence. State v. Mack, 277 N.C. App. 505, 860 S.E.2d 271, 2021- NCCOA-215, 2021 N.C. App. LEXIS 219 (2021).

§ 14-208.40A. Determination of satellite-based monitoring requirement by court. [Effective January 1, 2023]

  1. When an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), during the sentencing phase, the district attorney shall present to the court any evidence that (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20 , (ii) the offender is a reoffender, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.23 or G.S. 14-27.28 , or (v) the offense involved the physical, mental, or sexual abuse of a minor. The district attorney shall have no discretion to withhold any evidence required to be submitted to the court pursuant to this subsection.The offender shall be allowed to present to the court any evidence that the district attorney’s evidence is not correct.
  2. After receipt of the evidence from the parties, the court shall determine whether the offender’s conviction places the offender in one of the categories described in G.S. 14-208.40(a) , and if so, shall make a finding of fact of that determination, specifying whether (i) the offender has been classified as a sexually violent predator pursuant to G.S. 14-208.20 , (ii) the offender is a reoffender, (iii) the conviction offense was an aggravated offense, (iv) the conviction offense was a violation of G.S. 14-27.23 or G.S. 14-27.28 , or (v) the offense involved the physical, mental, or sexual abuse of a minor.
  3. If the court finds that the offender has been classified as a sexually violent predator, is a reoffender, has committed an aggravated offense, or was convicted of G.S. 14-27.23 or G.S. 14-27.28 , the court shall order that the Division of Adult Correction and Juvenile Justice do a risk assessment of the offender. The Division of Adult Correction and Juvenile Justice shall have up to 60 days to complete the risk assessment of the offender and report the results to the court. (c1) Upon receipt of a risk assessment from the Division of Adult Correction and Juvenile Justice pursuant to subsection (c) of this section, the court shall determine whether, based on the Division of Adult Correction and Juvenile Justice’s risk assessment, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in a satellite-based monitoring program for a period of 10 years.
  4. If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, that the offense is not an aggravated offense or a violation of G.S. 14-27.23 or G.S. 14-27.28 and the offender is not a recidivist, the court shall order that the Department of Adult Correction do a risk assessment of the offender. The Department shall have a minimum of 30 days, but not more than 60 days, to complete the risk assessment of the offender and report the results to the court.
  5. Upon receipt of a risk assessment from the Department of Adult Correction pursuant to subsection (d) of this section, the court shall determine whether, based on the Department’s risk assessment, the offender requires the highest possible level of supervision and monitoring. If the court determines that the offender does require the highest possible level of supervision and monitoring, the court shall order the offender to enroll in a satellite-based monitoring program for a period of time to be specified by the court.

History. 2007-213, s. 2; 2008-117, s. 16.1; 2011-145, s. 19.1(h); 2015-181, s. 41; 2017-186, s. 2(u); 2021-138, s. 18(d); 2021-180, s. 19C.9(jj); 2021-182, s. 2(b).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 14-208.40 A.

Editor’s Note.

Session Laws 2021-138, s. 18(o), provides: “The Division of Adult Correction and Juvenile Justice shall provide each elected District Attorney a list of the individuals that reside in a county in that District Attorney’s district that is subject to State v. Grady, 831 S.E.2d 542 (NC 2019), decided August 16, 2019, namely all individuals in the same category as the defendant, Mr. Grady: individuals subject to mandatory lifetime satellite-based monitoring based solely on their status as a statutorily defined ‘recidivist’ who have completed their prison sentences and are no longer supervised by the State through probation, parole, or post-release supervision. An elected District Attorney must decide to handle each case or have the Attorney General handle the case. If requested by an elected District Attorney, the Attorney General shall make a preliminary determination whether the recidivist subject to State v. Grady, may meet any requirement to enroll in a satellite-based monitoring program other than being a recidivist, and represent the State in any proceedings created by this section. Each District Attorney or Attorney General shall review the determination for every one of the class members. If the District Attorney or Attorney General makes a preliminary determination that the individual may meet any requirement to enroll in a satellite-based monitoring program other than being a recidivist, they shall notify the person and the sheriff in the county where the individual resides. The District Attorney or Attorney General may petition the court in that county for a hearing to have a judge determine if an individual subject to State v. Grady, 831 S.E.2d 542 (NC 2019), meets the criteria for satellite-based monitoring consistent with G.S. 14-208.40 A, as amended by this act.” Session Laws 2021-138, s. 18(p), made s. 18(o) of the act effective December 1, 2021, and applicable to any individual required to enroll in the satellite-based monitoring program based solely on being a “recidivist” on or after that date.

Session Laws 2021-138, s. 18(p), made the amendments to this section by Session Laws 2021-138, s. 18(d), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to subsections (d) and (e) of this section by Session Laws 2021-180, s. 19C.9(jj), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Session Laws 2021-182, s. 2(m), made the amendments to this section by Session Laws 2021-182, s. 2(b), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Effect of Amendments.

Session Laws 2008-117, s. 16.1, effective December 1, 2008, and applicable to offenses committed on or after that date, in subsections (a) and (b), inserted clause (iv) and renumbered former clause (iv) as clause (v); in subsection (c), inserted “or was convicted of G.S. 14-27.2 A or G.S. 14-27.4 A”; in subsection (d), inserted “or a violation of G.S. 14-27.2 A or G.S. 14-27.4 A”; and made minor stylistic changes.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department.”

Session Laws 2015-181, s. 41, effective December 1, 2015, substituted “G.S. 14-27.23 or G.S. 14-27.2 8” for “G.S. 14-27.2A or G.S. 14-27.4 A” in subsections (a) through (d). For applicability, see editor’s note.

Session Laws 2017-186, s. 2(u), effective December 1, 2017, inserted “and Juvenile Justice” in the second sentence of subsection (d) and substituted “Correction and Juvenile Justice’s” for “Correction’s” in the first sentence of subsection (e).

Session Laws 2021-138, s. 18(d), substituted “reoffender” for “recidivist” throughout; substituted “that the Division of Adult Correction and Juvenile Justice do a risk assessment of the offender. The Division of Adult Correction and Juvenile Justice shall have up to 60 days to complete the risk assessment of the offender and report the results to the court” for “the offender to enroll in a satellite-based monitoring program for life” in subsection (c); added subsection (c1); substituted “up to 60 days” for “a minimum of 30 days, but not more than 60 days” in subsection (d); substituted “court, not to exceed 10 years” for “court” in subsection (e) at the end; and made a stylistic change. For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(jj), in subsection (d), substituted “the Department of Adult Correction” for “the Division of Adult Correction” in the first sentence, and substituted “The Department shall” for “The Division of Adult Correction and Juvenile Justice shall” in the second sentence; in subsection (e), substituted “the Department of Adult Correction” for “the Division of Adult Correction and Juvenile Justice” and substituted “the Department’s risk assessment” for “the Division of Adult Correction and Juvenile Justice’s risk assessment.” For effective date and applicability, see editor's note.

Session Laws 2021-182, s. 2(b), added the last sentence in subsections (c) and (d); in subsection (c1), substituted “assessment and all relevant evidence” for “assessment”; and, in subsection (e), substituted “assessment and all relevant evidence” for “assessment." For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina,” see 38 Campbell L. Rev. 151 (2016).

CASE NOTES

Constitutionality. —

G.S. 14-208.40 B(c) and this section were unconstitutional under the Fourth Amendment as applied to all individuals who, like defendant, were in the third Bowditch category and who were subject to mandatory lifetime satellite-based monitoring based solely on their status as a “recidivist,” and therefore the appellate court erred in limiting its holding to the constitutionality of the program as applied only to defendant. State v. Grady, 372 N.C. 509 , 831 S.E.2d 542, 2019 N.C. LEXIS 799 (2019).

State’s interest in monitoring defendant via satellite based monitoring (SBM) during post-release supervision was already accomplished by a mandatory condition of post-release supervision imposing that very thing, and thus the State failed to show that the 30-year term of SBM imposed was effective to serve legitimate interests; this constituted an unreasonable warrantless search in violation of the Fourth Amendment and the imposition of SBM was unconstitutional as applied to defendant. State v. Griffin, 270 N.C. App. 98, 840 S.E.2d 267, 2020 N.C. App. LEXIS 139 (2020).

Order for lifetime satellite-based monitoring was unconstitutional as applied to defendant because the State failed to meet its burden of establishing that it would otherwise be reasonable to grant authorities unlimited discretion to continuously and perpetually monitor defendant’s location information upon his release from prison. State v. Gordon, 270 N.C. App. 468, 840 S.E.2d 907, 2020 N.C. App. LEXIS 205 (2020).

State did not establish that defendant’s enrollment in the satellite based monitoring (SBM) program for the remainder of his life constituted a reasonable Fourth Amendment search; defendant was ordered to enroll due to his offenses in violation of G.S. 14-27.28 , there was no evidence to support the State’s need to perpetually monitor defendant, who would be at least 89 years old upon his release, and the State failed to show how monitoring his movements for the rest of his life would deter future offenses. State v. Thompson, 273 N.C. App. 686, 852 S.E.2d 365, 2020 N.C. App. LEXIS 706 (2020).

Search effected by the imposition of lifetime satellite-based monitoring (SBM) on the category of aggravated offenders is reasonable under the Fourth Amendment; therefore, the SBM statute as applied to aggravated offenders is not unconstitutional. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) is clearly constitutionally reasonable during a defendant’s post-release supervision period because the SBM program serves a legitimate government interest; imposing lifetime SBM upon aggravated offenders serves the General Assembly’s stated purpose by assisting law enforcement agencies in solving crimes, and SBM also serves the State’s interest in protecting the public from aggravated offenders by deterring recidivism. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Privacy intrusion effected by satellite-based monitoring (SBM) falls on the less intrusive side of the regulatory spectrum and provides information to the State that is not ordinarily required for the general public, protects the public through deterrence, and allows for termination; given the the circumstances, SBM’s collection of information regarding physical location and movements effects only an incremental intrusion into an aggravated offender’s diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Because defendant failed to demonstrate that the satellite-based monitoring (SBM) program is unconstitutional beyond reasonable doubt, the SBM order complied with N.C. Const. art. I, § 10. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Satellite-based monitoring (SBM) program provides a particularized procedure for imposing SBM and thus, does not violate N.C. Const. art. I, § 20, because the State may only access a defendant’s physical location as recorded by the satellite monitoring device; the SBM program does not authorize State officials to indiscriminately search unidentified individuals for unspecified items and for an indefinite period of time without stated cause or constraint. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Search arising from the satellite-based monitoring program for a limited category of aggravated offenders is reasonable under the Fourth Amendment because the purpose of the program to protect the public from sex crimes is of paramount importance, and an aggravated offender’s reasonable expectation of privacy is significantly diminished; the incremental nature of a search providing location information and the method of data collection via an ankle bracelet are more inconvenient than intrusive. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Applicability. —

Although State v. Kilby, 679 S.E.2d 430 involved G.S. 14-208.40 B, the satellite-based monitoring (SBM) statute that applied when an offender was convicted of a reportable offense in the past, but the trial court had not previously determined whether the offender should be required to enroll in an SBM program, the analysis in Kilby was equally applicable to defendant’s case under G.S. 14-208.40 A. State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262, 2009 N.C. App. LEXIS 1569 (2009).

Neither the North Carolina Department of Correction nor the trial court was responsible for any type of notice regarding defendant’s eligibility for satellite-based monitoring (SBM) because G.S. 14-208.40 A was the applicable statute for determining his eligibility for enrollment in SBM and the time period of his enrollment since when defendant entered an Alford plea to four counts of taking indecent liberties with a minor in violation of G.S. 14-27.7 A(a), he was newly convicted of a reportable conviction. since defendant was placed on probation and, as a condition of his probation, was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40 A, not G.S. 14-208.40B. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

General Assembly has determined that an offender convicted of a particular classification of crimes is to be subject to lifetime satellite-based monitoring; implicit in this statutory scheme is a recognition of an offender’s risk of re-offending if he or she has committed a certain type of offense. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

Because defendant’s conviction for statutory rape, based upon acts committed in 2005, could not be considered a reportable conviction, defendant was not eligible for satellite-based monitoring for the offense. State v. Kpaeyeh, 246 N.C. App. 694, 784 S.E.2d 582, 2016 N.C. App. LEXIS 363 (2016).

Defendant was not an unsupervised recidivist subject to mandatory lifetime satellite based monitoring (SBM), but was instead a felon on post-release supervision who was convicted of an offense involving the physical, mental, or sexual abuse of a minor; therefore, he was subject to SBM and he received the benefit of a risk assessment and judicial determination of whether and for how long he would be subject to the SBM search. State v. Griffin, 270 N.C. App. 98, 840 S.E.2d 267, 2020 N.C. App. LEXIS 139 (2020).

Jurisdiction To Determine Eligibility For Satellite-Based Monitoring. —

Trial court properly exercised subject matter jurisdiction pursuant to G.S. 14-208.40 A and followed the proper hearing procedures in assessing defendant’s eligibility for satellite-based monitoring because the trial court determined that defendant was convicted of a reportable offense, statutory sex offense of a person at least six years younger than defendant pursuant to G.S. 14-27.7 A(a), considered the assessment prepared by the North Carolina Department of Correction and the testimony of the witnesses; the General Assembly devised a separate procedure for determining eligibility for satellite-based monitoring and clearly granted the superior courts subject matter jurisdiction to conduct these determinations pursuant to specific statutory procedures. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Reportable Offense. —

Trial court erred in finding that defendant had been convicted of an offense against a minor where defendant was convicted of taking indecent liberties with a child as G.S. 14-208.6(1m) defined an offense against a minor as requiring a conviction of kidnapping, child abduction, or felonious restraint; however, taking indecent liberties with a child was a reportable conviction under G.S. 14-208.40 A(a) and G.S. 14-208.40 B(a) as it was a sexually violent offense under G.S. 14-208.6(5), and was grounds for imposition of satellite-based monitoring, assuming all other requirements are met. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Additional Findings. —

Purpose of allowing the trial court to make additional findings at a G.S. 14-208.40 A hearing is to permit the trial court to consider factors not part of the STATIC-99 assessment, and where an offender is determined to pose only a low or moderate risk of reoffending, the State must offer additional evidence, and the trial court make additional findings, in order to justify a maximum satellite-based monitoring sentence; these additional findings cannot be based upon factors explicitly considered in the STATIC-99 assessment. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Order for Satellite-Based Monitoring Proper. —

As the essential elements of second-degree rape were covered by the plain language of “aggravated offense” as defined by G.S. 14-208.6(1a), second-degree rape was an “aggravated offense,” and the trial court did not err in ordering defendant to lifetime satellite-based monitoring pursuant to G.S. 14-208.40 A. State v. McCravey, 203 N.C. App. 627, 692 S.E.2d 409, 2010 N.C. App. LEXIS 722 (2010).

Trial court’s order was sufficient to require defendant’s enrollment in lifetime satellite-based monitoring (SBM) because the order fully complied with the requirements set forth in G.S. 14-208.40 A, and defendant was convicted of a reportable conviction as defined by G.S. 14-208.6(4) since he pleaded guilty to two counts of taking indecent liberties with a child in violation of G.S. 14-202.1 ; at sentencing, the State presented to the trial court evidence that defendant was a recidivist, and pursuant to G.S. 14-208.40 A(c), because the trial court found that defendant was a recidivist, it ordered him to enroll in SBM for life. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

Defendant’s enrollment in lifetime satellite-based monitoring (SBM) pursuant to pursuant to G.S. 14-208.40 A(c) did not violate the prohibitions against ex post facto laws because SBM was a civil remedy. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

Defendant’s enrollment in lifetime satellite-based monitoring (SBM) pursuant to pursuant to G.S. 14-208.40 A(c) did not violate the prohibitions against double jeopardy because defendant’s enrollment in SBM was not punishment. State v. Williams, 207 N.C. App. 499, 700 S.E.2d 774, 2010 N.C. App. LEXIS 1982 (2010).

In a proceeding under G.S. 14-208.40 A, an order enrolling defendant in a satellite-based monitoring system was supported by a trial court’s findings despite defendant’s moderate-low risk assessment from the Department of Correction due to the especially young age of defendant’s victims and the fact that defendant failed to get recommended sex offender treatment. State v. Green, 211 N.C. App. 599, 710 S.E.2d 292, 2011 N.C. App. LEXIS 901 (2011).

Imposition of lifetime satellite-based monitoring was appropriate because defendant was convicted of first-degree rape, which required vaginal penetration; without engaging in an improper examination of the facts giving rise to the crimes for which defendant was convicted, the trial court could have ascertained that both vaginal penetration and force were involved. State v. Marlow, 229 N.C. App. 593, 747 S.E.2d 741, 2013 N.C. App. LEXIS 959 (2013).

Trial court did not err in imposing upon the defendant enrollment in a satellite-based monitoring (SBM) program for the defendant’s natural life because continuous monitoring did not violate the defendant’s substantive due process rights, and the monitoring was rationally related to a legitimate governmental purpose; defendant’s participation in an SBM program following the defendant’s conviction for an aggravated offense, forcible rape, did not infringe upon any fundamental right, and by statute, the defendant was subject to SBM for life. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

Trial court found that defendant had been convicted of a sexually violent offense involving the abuse of a minor, and though the trial court neglected to check the box, it did write on the line that the satellite based monitoring period would be 10 years, which was not significantly burdensome, especially given that he was already subject to post-release supervision by the State for half of that time period; no reversible error was found. State v. Thompson, 273 N.C. App. 686, 852 S.E.2d 365, 2020 N.C. App. LEXIS 706 (2020).

Because defendant was convicted of three aggravated offenses (two counts of first-degree sexual offense with a child and the one count of first-degree rape), the trial court was statutorily required to order him to enroll in a satellite-based monitoring (SBM) program for life. Further, counsel was not ineffective because the search effected by the imposition of lifetime SBM, as applied to the category of defendants that defendant fell in, was reasonable. State v. Perkins, 2022- NCCOA-38, 2022 N.C. App. LEXIS 36 (N.C. Ct. App. Jan. 18, 2022).

Defendant was convicted of first-degree statutory rape and first-degree statutory sexual offense and those convictions qualified defendant as an aggravated offender; thus, the trial court appropriately ordered lifetime satellite-based monitoring (SBM), and because searches effected by the imposition of lifetime SBM were reasonable as applied to the aggravated offender category, the imposition of SBM did not violate the Fourth Amendment. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Court of appeals abused its discretion when it allowed defendant’s petition for writ of certiorari and invoked N.C. R. Civ. P. 2 to review satellite-based monitoring (SBM) orders because defendant failed to demonstrate any manifest injustice, and his petition showed no merit; the trial court followed the statute by ordering lifetime SBM due to defendant’s status as an aggravated offender, and absent an objection, it was under no constitutional requirement to inquire into reasonableness. State v. Ricks, 2021-NCSC-116, 378 N.C. 737 , 862 S.E.2d 835, 2021- NCSC-116, 2021 N.C. LEXIS 928 (2021).

Defendant’s counsel conceded that satellite-based monitoring (SBM) would be appropriate during defendant’s period of parole because counsel admitted that during the time that defendant was out on parole he had a lower expectation of privacy and a diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Where the trial court imposed lifetime satellite-based monitoring on defendant convicted of a sexual offense with a child under the age of thirteen, the monitoring was constitutionally reasonable under the Fourth Amendment due to his long-standing and persistent tendency for sexual abuse, his disposition as a reoffender, and his sex offender registry violations. State v. Carter, 2022-NCCOA-262, 2022 N.C. App. LEXIS 266 (April 19, 2022).

Order for Satellite-Based Monitoring Improper. —

Trial court’s order that defendant enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A was improper because the trial court made no findings justifying the conclusion that defendant required the highest possible level of supervision and monitoring and the trial court erred by doing so; the State presented no evidence which supported a determination of a higher level of risk than the “moderate” rating assigned by the Department of Corrections, and, therefore, there was no need to remand the matter to the trial court for additional findings of fact as requested by the State. State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430, 2009 N.C. App. LEXIS 1179 (2009).

After defendant’s guilty plea to taking indecent liberties with a child, enrolling defendant in a satellite-based monitoring program was improper because, pursuant to G.S. 14-208.40 A(d), the Department of Corrections assessed defendant as a moderate risk and no evidence supported the court’s findings of a higher level of risk or the requirement of the highest possible level of supervision and monitoring. State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262, 2009 N.C. App. LEXIS 1569 (2009).

Trial court erred in ordering lifetime satellite based monitoring for defendant because it did not follow the procedures in G.S. 14-208.40 A, and the finding that defendant had committed offenses against a minor was in error since defendant was not convicted of any of the offenses listed in G.S. 14-208.6(1i) and was the minor’s adoptive parent; upon the determination that defendant was convicted of an offense involving the physical, mental, or sexual abuse of a minor, the trial court had to then order the Department of Correction to perform a risk assessment pursuant to G.S. 14-208.40 A(d), and the trial court erred by not ordering that risk assessment of defendant. State v. Smith, 201 N.C. App. 681, 687 S.E.2d 525, 2010 N.C. App. LEXIS 24 (2010).

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court’s conclusion that defendant committed an aggravated offense was based in part upon defendant’s colloquy at trial, when making a determination pursuant to G.S. 14-208.40 A, the trial court was only to consider the elements of the offense of which defendant was convicted and was not to consider the underlying factual scenario giving rise to the conviction. Neither attempted first-degree sex offense nor taking indecent liberties with a child was an aggravated offense within the meaning of G.S. 14-208.6(1a). State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

In a case in which defendant entered an Alford plea to attempted first-degree sex offense and taking indecent liberties with a child and the trial court ordered that when he was released from custody he enroll in satellite-based monitoring for life, the trial court had not followed the required sentencing procedure set forth in G.S. 14-208.40 A because, while the trial court correctly made an initial finding that defendant had been convicted of a reportable offense pursuant to G.S. 14-208.6(4) and (5), at that point, the trial court made no findings that defendant had been convicted of an aggravated offense as required by G.S. 14-208.40 A(b). Instead, the trial court ordered a risk assessment to be completed that afternoon, if possible; the court prematurely ordered the risk assessment and improperly considered sentencing pursuant to G.S. 14-208.40A(c) and (d) simultaneously. State v. Davison, 201 N.C. App. 354, 689 S.E.2d 510, 2009 N.C. App. LEXIS 2239 (2009).

Defendant’s conviction for taking indecent liberties with a child, a violation of G.S. 14-202.1 , was not an aggravated offense, as defined by G.S. 14-208.6(1a), and, therefore, the trial court erred in ordering defendant to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 B. State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562, 2010 N.C. App. LEXIS 34 (2010).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Imposition of satellite-based monitoring was improper as the trial court did not determine whether defendant was a sexually violated predator or recidivist, and a Department of Correction assessment was not performed. State v. Treadway, 208 N.C. App. 286, 702 S.E.2d 335, 2010 N.C. App. LEXIS 2362 (2010).

Order enrolling defendant in satellite-based monitoring (SBM) at a probation violation hearing was improper because the trial court had already found that defendant was not subject to SBM at a prior hearing based on the same reportable convictions, and a second such hearing violated G.S. 14-208.40 B(a); further, there was no indication in the record that Department of Correction followed the notice requirements of G.S. 14-208.40 B(b), and the trial court failed to make the findings required by G.S. 14-208.40B(c), as a probation violation is not a crime in itself, much less a “reportable conviction” under G.S. 14-208.40B. State v. Clayton, 206 N.C. App. 300, 697 S.E.2d 428, 2010 N.C. App. LEXIS 1451 (2010).

Order pursuant G.S. 14-208.40 A(a) that defendant enroll in satellite-based monitoring for ten years after release from prison for sexual crime convictions was error because the Static 99 assessment conducted by the DOC concluded that defendant posed a “low” risk of re-offending, and there were no further findings or additional evidence; however, the state’s petition for writ of certiorari was granted, and the case was remanded to the trial court to enter an appropriate order in light of the recent case holding that second-degree rape was an aggravated offense as defined by the statute. State v. Oxendine, 206 N.C. App. 205, 696 S.E.2d 850, 2010 N.C. App. LEXIS 1450 (2010).

Trial court erred in finding that lifetime satellite-based monitoring was required for defendant and in failing to order that a risk assessment of defendant be performed pursuant to G.S. 14-208.40 A(d) prior to ordering him to enroll in a lifetime satellite-based monitoring program upon release from prison because defendant was convicted for first-degree rape involving a child under the age of thirteen and taking indecent liberties with a child in violation of G.S. 14-27.2 and 14-202.1, not attempted rape of a child, pursuant to G.S. 14-27.2 A as found by the trial court; the trial court did not find that defendant was a sexually violent predator or that he was a recidivist, and it found that the offense was not an aggravated offense. State v. Merrell, 212 N.C. App. 502, 713 S.E.2d 77, 2011 N.C. App. LEXIS 1049 (2011).

Trial court erred in failing to follow the procedural framework set out in G.S. 14-208.40 A when it required defendant, who was convicted of violating G.S. 14-27.7(a), to register as a sex offender and enroll in satellite-based monitoring for his natural life because the trial waited to decide whether defendant fell within G.S. 14-208.40 A(b)(i) through (iv) until after it had a chance to review the risk assessment under G.S. 14-208.40A(b)(v); the trial court erred in considering the risk assessment before deciding whether defendant committed an aggravated offense, and it could not determine, based on the elements of the offense alone, that defendant engaged in a sexual act involving penetration. State v. Mann, 214 N.C. App. 155, 715 S.E.2d 213, 2011 N.C. App. LEXIS 1618 (2011).

Since only two of the trial court’s findings were supported by competent evidence, which could support findings of fact that could lead to a conclusion that defendant required the highest possible level of supervision and monitoring, it was be proper to remand the case to the trial court to consider the evidence and make additional findings; the State did not present any evidence to support the finding that the statutory sex offenses in violation of G.S. 14-27.7 A(a) occurred when other children were present in defendant’s home, and the trial court’s finding regarding defendant’s lack of remorse was unsupported by competent evidence because it was unclear whether the trial court found that defendant’s Alford plea itself showed a lack of remorse or whether defendant’s actions showed a lack of remorse. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Although defendant was properly convicted of several counts of first degree sex offense involving his ten-year-old daughter, a trial court erred by sentencing defendant to a satellite-based monitoring program for the rest of his natural life because the trial court made a finding that defendant did not require the highest level of satellite-based monitoring and supervision, pursuant to G.S. 14-208.40 A(e); the length of defendant’s prison term was not to be considered in determining whether satellite-based monitoring was required. State v. Stokes, 216 N.C. App. 529, 718 S.E.2d 174, 2011 N.C. App. LEXIS 2287 (2011).

As the trial court erred it determining that defendant’s conviction of second-degree sexual offense by the commission of a sexual act under G.S. 14-27.5(a) was an “aggravated offense” as defined under G.S. 14-208.6(1a), it erred in ordering him to enroll in lifetime satellite-based monitoring under G.S. 14-208.40 A. State v. Boyett, 224 N.C. App. 102, 735 S.E.2d 371, 2012 N.C. App. LEXIS 1370 (2012).

Defendant’s sentence to post-release satellite-based monitoring under G.S. 14-208.40 A for taking indecent liberties was vacated where: (1) defendant’s STATIC-99 risk assessment score of zero classified him as a low risk for reoffending; (2) the trial court’s additional finding that the victim was suffering significant emotional trauma was based on unsworn statements of the victim’s mother that defendant had no opportunity to cross-examine; and (3) the STATIC-99 had taken defendant’s other sex offense and age into account, and they could not be the basis for the trial court’s additional findings. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Trial court erred in ordering satellite-based monitoring, because it expressly found that defendant did not fall within any of the statutorily enumerated categories of offenders requiring satellite-based monitoring (SBM) in G.S. 14-208.40 B(c), but nonetheless ordered defendant to enroll in the SBM program due to its finding that his probation had been revoked and he had failed to complete his sex offender treatment. State v. Hadden, 226 N.C. App. 330, 741 S.E.2d 466, 2013 N.C. App. LEXIS 345 (2013).

Trial court improperly ordered lifetime sex offender registration and satellite based monitoring, as penetration was not required for the defendant’s offense and thus, it was not an aggravated offense as defined by G.S. 14-208.6(1a). State v. Green, 229 N.C. App. 121, 746 S.E.2d 457, 2013 N.C. App. LEXIS 891 (2013).

Trial court erred in requiring defendant to enroll in satellite-based monitoring where a risk assessment placed him the moderate-high risk category, and the trial court did not make any further findings of fact as to why satellite-based monitoring was appropriate. State v. Dye, 254 N.C. App. 161, 802 S.E.2d 737, 2017 N.C. App. LEXIS 458 (2017).

Trial court erred in ordering that satellite-based monitoring (SBM) be imposed for the remainder of defendant’s natural life because the State was statutorily required to present to the court any evidence that defendant fell into one of the enumerated categories to impose SBM, but no evidence was presented to the trial court, upon which the trial court could have determined that defendant had obtained the required prior sexual offense convictions to be classified as a recidivist; and defense counsel’s statements and arguments did not stipulate to the prior convictions. State v. Moore, 250 N.C. App. 136, 792 S.E.2d 540, 2016 N.C. App. LEXIS 1059 (2016).

Trial court’s order imposing lifetime satellite-based monitoring on defendant was vacated and the case was remanded for further proceedings because the trial court was required to consider the reasonableness of the satellite-based monitoring when defendant challenged that monitoring under U.S. Const. amend. IV. State v. Stroessenreuther, 250 N.C. App. 772, 793 S.E.2d 734, 2016 N.C. App. LEXIS 1240 (2016).

Trial court erred by concluding that attempted second-degree rape was an aggravated offense, and therefore it erred by ordering defendant to submit to lifetime satellite-based monitoring and lifetime sex offender registration. The case was remanded for an order requiring defendant to register as a sex offender for 30 years. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

Because the State failed to demonstrate the substantial similarity of defendant’s out-of-state convictions to North Carolina crimes and since the trial court failed to determine that the out-of-state convictions were substantially similar to North Carolina offenses, the trial court’s conclusion that defendant was a recidivist was not supported by competent evidence and remand for resentencing was required. State v. Springle, 244 N.C. App. 760, 781 S.E.2d 518, 2016 N.C. App. LEXIS 55 (2016).

In a case challenging enrollment in satellite-based monitoring, an additional finding regarding the similarity of the victims in age and sex was not supported by competent evidence because the documents relating to such were not offered into evidence. The trial court’s additional finding that there was a short period of time between the conclusion of probation for a 1994 nonsexual offense and a 1998 sexual offense was supported by competent evidence; however, this did not support the trial court’s determination that defendant required the highest level of supervision and monitoring. State v. Jones, 234 N.C. App. 239, 758 S.E.2d 444, 2014 N.C. App. LEXIS 552 (2014).

It was error to order satellite-based monitoring and lifetime registration for defendant because the court found defendant did not fall under any of the required statutory categories. State v. Harding, 258 N.C. App. 306, 813 S.E.2d 254, 2018 N.C. App. LEXIS 245 , writ denied, 371 N.C. 450 , 817 S.E.2d 205, 2018 N.C. LEXIS 669 (2018).

Order mandating that defendant enroll in lifetime satellite-based monitoring following his eventual release from prison was vacated because the State could not establish that defendant’s submission to such monitoring would constitute a reasonable Fourth Amendment search in 15 to 20 years when defendant would be released from prison. The State made no attempt to report the level of intrusion as to the information revealed under the program, and the State was unable to adequately establish the government’s need to search. State v. Gordon, 261 N.C. App. 247, 820 S.E.2d 339, 2018 N.C. App. LEXIS 889 (2018).

Petition for writ of certiorari granted where no evidence was presented prior to or to support the trial court’s determination that defendant would be subject to satellite-based monitoring for the remainder of his life. State v. Sheridan, 263 N.C. App. 697, 824 S.E.2d 146, 2019 N.C. App. LEXIS 74 (2019).

In a challenge an order of lifetime satellite-based monitoring, the State’s evidence fell short of demonstrating what defendant’s threat of reoffending would be after having been incarcerated for roughly 15 years and thus, the finding that monitoring was justified to deter future sexual assaults was not sufficient to support the order. State v. Gordon, 270 N.C. App. 468, 840 S.E.2d 907, 2020 N.C. App. LEXIS 205 (2020).

Trial court erred by entering an order subjecting defendant to lifetime participation in the State’s satellite-based monitoring (SBM) program because the State presented no evidence on the burdens the program imposed upon participants or any data on the extent to which the program advances legitimate government interests. Rather, after taking notice of the facts and evidence adduced at trial, the trial court ignored the State’s offer to proceed introducing evidence in a Grady hearing and summarily gave its reasons for finding lifetime enrollment in the SBM program reasonable. State v. Graham, 270 N.C. App. 478, 841 S.E.2d 754, 2020 N.C. App. LEXIS 211 (2020), aff'd, 379 N.C. 75 , 863 S.E.2d 752, 2021- NCSC-125, 2021 N.C. LEXIS 1026 (2021).

Weighing the State of North Carolina’s failure to introduce any evidence showing that lifetime satellite-based monitoring (SBM) of defendant would advance its interest in reducing recidivism — or any other argued interest — against defendant’s constitutional privacy interests, the appellate court found that the imposition of lifetime SBM as to defendant was improper in that the court could not conclude that the State’s legitimate governmental concerns outweighed defendant’s cognizable privacy rights under U.S. Const. amend. IV. State v. Hutchens, 272 N.C. App. 156, 846 S.E.2d 306, 2020 N.C. App. LEXIS 462 (2020).

Because the trial court did not conduct a hearing on the issue, it erred by ordering defendant to enroll in satellite-based monitoring prior to holding the required hearing on the issue; the State presented no evidence as to defendant’s eligibility regarding monitoring, and defendant was not afforded the opportunity to present evidence contradicting the State’s evidence. State v. Mack, 277 N.C. App. 505, 860 S.E.2d 271, 2021- NCCOA-215, 2021 N.C. App. LEXIS 219 (2021).

§ 14-208.40B. Determination of satellite-based monitoring requirement in certain circumstances. [Effective until January 1, 2023]

  1. When an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), and there has been no determination by a court on whether the offender shall be required to enroll in satellite-based monitoring, the Division of Adult Correction and Juvenile Justice shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a) .
  2. If the Division of Adult Correction and Juvenile Justice determines that the offender falls into one of the categories described in G.S. 14-208.40(a) , the district attorney, representing the Division of Adult Correction and Juvenile Justice, shall schedule a hearing in superior court for the county in which the offender resides. The Division of Adult Correction and Juvenile Justice shall notify the offender of the Division of Adult Correction and Juvenile Justice’s determination and the date of the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14-208.7 . The hearing shall be scheduled no sooner than 15 days from the date the notification is mailed. Receipt of notification shall be presumed to be the date indicated by the certified mail receipt. Upon the court’s determination that the offender is indigent and entitled to counsel, the court shall assign counsel to represent the offender at the hearing pursuant to rules adopted by the Office of Indigent Defense Services.
  3. At the hearing, the court shall determine if the offender falls into one of the categories described in G.S. 14-208.40(a) . The court shall hold the hearing and make findings of fact pursuant to G.S. 14-208.40 A. (c1) Repealed by Session Laws 2021-182, s. 2(c ), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

History. 2007-213, s. 3; 2007-484, s. 42(b); 2008-117, s. 16.2; 2009-387, s. 4; 2011-145, s. 19.1(h); 2015-181, ss. 42, 47; 2017-186, s. 2(v); 2021-138, s. 18(e); 2021-182, s. 2(c).

Section Set Out Twice.

The section above is effective until January 1, 2023. For the section as amended January 1, 2023, see the following section, also numbered G.S. 14-208.40 B.

Editor’s Note.

Session Laws 2015-181, s. 47, provides: “The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority, the Revisor of statutes substituted “ G.S. 14-27.28 ” for “ G.S. 14-27.4 A” in the second paragraph of subsection (c).

Session Laws 2021-138, s. 18(p), made the amendments to this section by Session Laws 2021-138, s. 18(e), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-182, s. 2(m), made the amendments to this section by Session Laws 2021-182, s. 2(c), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Effect of Amendments.

Session Laws 2008-117, s. 16.2, effective December 1, 2008, and applicable to offenses committed on or after that date, in subsection (c), inserted clause (iv) in the second paragraph and made a related change, and substituted “the offense is not an aggravated offense or a violation of G.S. 14-27.2 A or G.S. 14-27.4 A” for “offense is not an aggravated offense” in the third paragraph.

Session Laws 2009-387, s. 4, effective July 31, 2009, in subsection (b), substituted “the district attorney, representing the Department, shall schedule a hearing in superior court for” for “the Department shall schedule a hearing in the court of,” in the first sentence, and added the last sentence.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department.”

Session Laws 2015-181, s. 42, effective December 1, 2015, in subsection (c), substituted “G.S. 14-27.23 or G.S. 14-27.4 A” for “G.S. 14-27.2A or G.S. 14-27.4 A” in the second paragraph, and “G.S. 14-27.23 or G.S. 14-27.2 8” for “G.S. 14-27.2A or G.S. 14-27.4A” in the third paragraph. For applicability, see editor’s note.

Session Laws 2017-186, s. 2(v), effective December 1, 2017, inserted “and Juvenile Justice” and similar language throughout the section.

Session Laws 2021-138, s. 18(e), substituted “reoffender” for “recidivist” in the second paragraphs of subsections (c) and (c1); substituted “that the Division of Adult Correction and Juvenile Justice do a risk assessment of the offender. The Division of Adult Correction and Juvenile Justice shall have up to 60 days to complete the risk assessment of the offender and report the results to the court” for “the offender to enroll in satellite-based monitoring for life” in subsection (c); added the first paragraph of subsection (c1); in (c1), substituted “up to 60 days” for “a minimum of 30 days, but not more than 60 days” in the second paragraph and substituted “court, not to exceed 10 years” for “court” in the third paragraph at the end; and made a stylistic change. For effective date and applicability, see editor’s note.

Session Laws 2021-182, s. 2(c), deleted the second paragraph of subsection (c); and deleted subsection (c1). For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina,” see 38 Campbell L. Rev. 151 (2016).

CASE NOTES

Constitutionality. —

Retroactive application of the satellite-based monitoring (SBM) provision in G.S. 14-208.40 B did not violate the state or federal ex post facto clause, because the restrictions imposed by the SBM provisions did not negate the legislature’s expressed civil intent and defendant failed to show that the effects of SBM were sufficiently punitive to transform the civil remedy into a criminal punishment. State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518, 2009 N.C. App. LEXIS 775 (2009).

Trial court did not err in imposing upon defendant enrollment in a satellite-based monitoring (SBM) program for the defendant’s natural life because continuous monitoring did not violate the defendant’s substantive due process rights, and the monitoring was rationally related to a legitimate governmental purpose; defendant’s participation in an SBM program following the defendant’s conviction for an aggravated offense, forcible rape, did not infringe upon any fundamental right, and by statute, the defendant was subject to SBM for life. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

G.S. 14-208.40 A(c) and this section were unconstitutional under the Fourth Amendment as applied to all individuals who, like defendant, were in the third Bowditch category and who were subject to mandatory lifetime satellite-based monitoring based solely on their status as a “recidivist,” and therefore the appellate court erred in limiting its holding to the constitutionality of the program as applied only to defendant. State v. Grady, 372 N.C. 509 , 831 S.E.2d 542, 2019 N.C. LEXIS 799 (2019).

Imposition of lifetime satellite-based monitoring (SBM) was unconstitutional as applied to defendant in part; the imposition of SBM beyond his post-release supervision constituted an unreasonable search, as defendant’s expectation of privacy was too high and the State’s legitimate purpose in monitoring his location, to determine whether he was absconding, was extinguished. SBM during the period of his post-release supervision was reasonable, as his expectation of privacy then was very low. State v. Hilton, 271 N.C. App. 505, 845 S.E.2d 81, 2020 N.C. App. LEXIS 388 (2020), rev'd in part, modified, aff'd, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Statute is facially valid, at least to the extent that it can be applied to defendants under State supervision; imposition of SBM on individuals who are otherwise under State post-release supervision does not violate the North Carolina Constitution. State v. Hilton, 271 N.C. App. 505, 845 S.E.2d 81, 2020 N.C. App. LEXIS 388 (2020), rev'd in part, modified, aff'd, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Applicability. —

Although State v. Kilby , 679 S.E.2d 430 (2009) involved G.S. 14-208.40 B, the satellite-based monitoring (SBM) statute that applied when an offender was convicted of a reportable offense in the past, but the trial court had not previously determined whether the offender should be required to enroll in an SBM program, the analysis in Kilby was equally applicable to defendant’s case under G.S. 14-208.40 A. State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262, 2009 N.C. App. LEXIS 1569 (2009).

Neither the North Carolina Department of Correction nor the trial court was responsible for any type of notice regarding defendant’s eligibility for satellite-based monitoring (SBM) because G.S. 14-208.40 A was the applicable statute for determining his eligibility for enrollment in SBM and the time period of his enrollment since when defendant entered an Alford plea to four counts of taking indecent liberties with a minor in violation of G.S. 14-27.7 A(a), he was newly convicted of a reportable conviction. since defendant was placed on probation and, as a condition of his probation, was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40 A, not G.S. 14-208.40B. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Subject Matter Jurisdiction vs. Venue. —

In a case challenging enrollment in satellite-based monitoring, a trial court did not lack subject matter jurisdiction because a requirement that a hearing be held in the superior court in the county where the defendant resided related to venue, and this could not have been challenged for the first time on appeal. State v. Jones, 234 N.C. App. 239, 758 S.E.2d 444, 2014 N.C. App. LEXIS 552 (2014).

Trial Court Must Set Definite Time Period for Satellite-Based Monitoring. —

With respect to defendant’s argument that the trial court erred by ordering him to enroll in satellite-based monitoring (SBM) for an indefinite period of time, seven to ten years, the appellate court found that in the absence of any statutory provisions under G.S. 14-208.43(e) to determine when an offender’s monitoring would end if his “period of time” was a range of time, G.S. 14-208.40 B(c) required the trial court to set a definite time period for defendant’s enrollment in SBM. Therefore, the appellate court remanded to the trial court with the direction that if the trial court determined that defendant required the highest possible level of supervision and monitoring per G.S. 14-208.40 B(c), the trial court shall also set a definite period of time for defendant to be enrolled in SBM. State v. Morrow, 200 N.C. App. 123, 683 S.E.2d 754, 2009 N.C. App. LEXIS 1607 (2009), aff'd, 364 N.C. 424 , 700 S.E.2d 224, 2010 N.C. LEXIS 729 (2010).

Jurisdiction Properly Exercised. —

Trial court properly exercised jurisdiction and determined that defendant was subject to satellite-based monitoring (SBM) for the duration of his life because defendant was a person who fit the criteria the legislature intended for participation in the SBM program when the legislation became effective 16 August 2006, and defendant completed his sentence for taking indecent liberties with a minor, a Class F felony, and was eligible for release, but not eligible for post-release supervision, after the effective date of the legislation; G.S. 14-208.40 B seeks to encompass multiple categories of offenders at different stages in the judicial process, and the notice provisions found in G.S. 14-208.40 B(b) are merely that, notice provisions to protect the due process rights of offenders who are not currently incarcerated. State v. Wooten, 194 N.C. App. 524, 669 S.E.2d 749, 2008 N.C. App. LEXIS 2232 (2008), cert. dismissed, 363 N.C. 138 , 676 S.E.2d 308, 2009 N.C. LEXIS 269 (2009).

Satellite-Based Monitoring is Not Punitive in Nature. —

Fact that satellite-based monitoring (SBM) can be one of the conditions imposed upon an offender who did not complete probation, parole, or post-release supervision did not mean that SBM alone was intended as punitive. State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518, 2009 N.C. App. LEXIS 775 (2009).

Reportable Offense. —

Trial court erred in finding that defendant had been convicted of an offense against a minor where defendant was convicted of taking indecent liberties with a child as G.S. 14-208.6(1m) defined an offense against a minor as requiring a conviction of kidnapping, child abduction, or felonious restraint; however, taking indecent liberties with a child was a reportable conviction under G.S. 14-208.40 A(a) and G.S. 14-208.40 B(a) as it was a sexually violent offense under G.S. 14-208.6(5), and was grounds for imposition of satellite-based monitoring, assuming all other requirements are met. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Prior Conviction in a Recidivism Determination Does Not Have to Be for a Reportable Offense. —

Trial court properly determined that defendant was subject to satellite-based monitoring for the duration of his life when the offense on which defendant’s recidivism determination was made, taking indecent liberties with a minor, was clearly one described in G.S. 14-208.5 even though it was not reportable because it predated the act; there is nothing in the statutory language that requires that the prior conviction in a recidivism determination must be for a reportable offense, and the code is clear that the prior conviction must be for an offense that is described in the statute defining reportable offenses. State v. Wooten, 194 N.C. App. 524, 669 S.E.2d 749, 2008 N.C. App. LEXIS 2232 (2008), cert. dismissed, 363 N.C. 138 , 676 S.E.2d 308, 2009 N.C. LEXIS 269 (2009).

Notice of Satellite-Based Monitoring Proceedings. —

Defendant’s appellate claims that defendant received insufficient notice of satellite-based monitoring proceedings were dismissed because defendant did not include the notice defendant received in the appellate record, so the appellate court could not review the adequacy of that notice. State v. Jones, 231 N.C. App. 123, 750 S.E.2d 883, 2013 N.C. App. LEXIS 1233 (2013).

Notice Insufficient. —

Because G.S. 14-208.40(a) required that the Department of Correction notify the offender, in advance of the Satellite-Based Monitoring (SBM) hearing, of the basis for its determination that the offender fell within one of the categories set out in G.S. 14-208.40(a) , making the offender subject to enrollment in the SBM program, and because defendant did not receive such notice, the case was reversed and remand for a new SBM hearing. State v. Stines, 200 N.C. App. 193, 683 S.E.2d 411, 2009 N.C. App. LEXIS 1620 (2009).

Imposition of continuous satellite-based monitoring for the remainder of an offender’s life was reasonable in light of the objective to protect the public, Imposition of continuous satellite-based monitoring (SBM) for the remainder of an offender’s life was reasonable in light of the objective to protect the public, particularly in light of the fact that the Post-Release Supervision and Parole Commission had authority to terminate SBM upon request of certain offenders who had served their sentence and completed any period of probation, parole, or post-release supervision. State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518, 2009 N.C. App. LEXIS 775 (2009).

Order for Satellite-Based Monitoring Proper. —

Defendant’s prior conviction for indecent liberties supported the trial court’s finding that defendant was a recidivist for purposes of the satellite-based monitoring statute, G.S. 14-208.40 B, since: (1) a recidivist was a person who had a prior conviction for an offense that was described in G.S. 14-208.6(4); (2) G.S. 14-208.6(4) described a variety of offense classes, including sexually violent offenses; and (3) a sexually violent offense included the offense of taking indecent liberties with a child as described in G.S. 14-202.1 . State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Trial court did not err in requiring defendant to enroll in Satellite-Based Monitoring (SBM) because although there was no evidence establishing that defendant received proper notice of the hearing or that the defendant received notice of the basis upon which the State believed the defendant eligible for SBM, defendant failed to object at the hearing when the trial court was reviewing the findings of fact on the preprinted form. State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674, 2014 N.C. App. LEXIS 174 (2014).

Order for Satellite-Based Monitoring Improper. —

Trial court’s order that defendant enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A was improper because the trial court made no findings justifying the conclusion that defendant required the highest possible level of supervision and monitoring and the trial court erred by doing so; the State presented no evidence which supported a determination of a higher level of risk than the “moderate” rating assigned by the Department of Corrections, and, therefore, there was no need to remand the matter to the trial court for additional findings of fact as requested by the State. State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430, 2009 N.C. App. LEXIS 1179 (2009).

Defendant’s conviction for taking indecent liberties with a child, a violation of G.S. 14- 202.1, was not an aggravated offense, as defined by G.S. 14-208.6(1a), and, therefore, the trial court erred in ordering defendant to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 B. State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562, 2010 N.C. App. LEXIS 34 (2010).

Trial court erred in concluding that defendant had committed an aggravated offense and had to enroll in satellite-based monitoring for life, pursuant to G.S. 14-208.40 B(c); indecent liberties with a minor was not an aggravated offense as defined by G.S. 14-208.6(1a). State v. King, 204 N.C. App. 198, 693 S.E.2d 168, 2010 N.C. App. LEXIS 797 (2010).

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Even though it appeared that the trial court could have found that defendant committed an offense that involved the physical, mental, or sexual abuse of a minor, since the record indicated that defendant did not require the highest possible level of supervision and monitoring, the trial court could not order defendant to enroll in a satellite-based program for a period of time to be specified by the trial court pursuant to G.S. 14-208.40 B(c) because the record indicated that the Department of Correction conducted a risk assessment on defendant and found that he “scored one point” and was deemed to be “low risk.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Order enrolling defendant in satellite-based monitoring (SBM) at a probation violation hearing was improper because the trial court had already found that defendant was not subject to SBM at a prior hearing based on the same reportable convictions, and a second such hearing violated G.S. 14-208.40 B(a); further, there was no indication in the record that Department of Correction followed the notice requirements of G.S. 14-208.40 B(b), and the trial court failed to make the findings required by G.S. 14-208.40B(c), as a probation violation is not a crime in itself, much less a “reportable conviction” under G.S. 14-208.40B. State v. Clayton, 206 N.C. App. 300, 697 S.E.2d 428, 2010 N.C. App. LEXIS 1451 (2010).

Trial court erred in ordering satellite-based monitoring, because it expressly found that defendant did not fall within any of the statutorily enumerated categories of offenders requiring satellite-based monitoring (SBM) in G.S. 14-208.40 B(c), but nonetheless ordered defendant to enroll in the SBM program due to its finding that his probation had been revoked and he had failed to complete his sex offender treatment. State v. Hadden, 226 N.C. App. 330, 741 S.E.2d 466, 2013 N.C. App. LEXIS 345 (2013).

Trial court erred in ordering that satellite-based monitoring (SBM) be imposed for the remainder of defendant’s natural life because the State was statutorily required to present to the court any evidence that defendant fell into one of the enumerated categories to impose SBM, but no evidence was presented to the trial court, upon which the trial court could have determined that defendant had obtained the required prior sexual offense convictions to be classified as a recidivist; and defense counsel’s statements and arguments did not stipulate to the prior convictions. State v. Moore, 250 N.C. App. 136, 792 S.E.2d 540, 2016 N.C. App. LEXIS 1059 (2016).

Since satellite-based monitoring (SBM) is not a criminal punishment but rather a civil regulatory scheme, the trial court did not err in ordering defendant to enroll in SBM pursuant to G.S. 14-208.40 B because the enrollment did not violate prohibitions against ex post facto law; mere involvement of the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive, and the involvement of courts of law and superior court judges does not indicate a punitive legislative intent since the superior courts have jurisdiction regarding many different types of civil matters. State v. Wagoner, 199 N.C. App. 321, 683 S.E.2d 391, 2009 N.C. App. LEXIS 1500 (2009), aff'd, 364 N.C. 422 , 700 S.E.2d 222, 2010 N.C. LEXIS 735 (2010).

Since satellite-based monitoring (SBM) is not a criminal punishment but rather a civil regulatory scheme, the trial court did not err in ordering defendant to enroll in SBM pursuant to G.S. 14-208.40 B because the enrollment did not violate prohibitions against double jeopardy; defendant had not been prosecuted a second time for any previously committed offenses but contended that he had been subjected to additional punishments, and because SBM was a civil regulatory scheme and not a punishment, double jeopardy did not apply. State v. Wagoner, 199 N.C. App. 321, 683 S.E.2d 391, 2009 N.C. App. LEXIS 1500 (2009), aff'd, 364 N.C. 422 , 700 S.E.2d 222, 2010 N.C. LEXIS 735 (2010).

Waiver of Argument on Appeal. —

Because the statute’s requirement that a Satellite-Based Monitoring hearing be brought in the county in which the offender resided addressed venue, not subject matter jurisdiction, defendant’s failure to object at the hearing waived his argument on appeal that the trial court lacked subject matter jurisdiction to conduct his hearing. State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674, 2014 N.C. App. LEXIS 174 (2014).

Since defendant failed to challenge the venue of his Satellite-Based Monitoring hearing either in his motion to dismiss or in arguments at the hearing, he waived the issue on appeal. State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674, 2014 N.C. App. LEXIS 174 (2014).

Defendant waived his right to raise a constitutional challenge because he failed to preserve the issue for appeal; in his motion to dismiss the State’s petition to enroll him in Satellite-Based Monitoring (SBM), defendant put forth no argument that his constitutional protection of due process was violated by the State’s failure to provide him proper notice of the hearing, and defendant did not raise any issue related to notice at the SBM hearing. State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674, 2014 N.C. App. LEXIS 174 (2014).

Although the State has the burden of proof of reasonableness of satellite-based monitoring under the Fourth Amendment, the defendant still must raise the constitutional objection so the State will be on notice it must present evidence to meet its burden. State v. Lindsey, 260 N.C. App. 640, 818 S.E.2d 344, 2018 N.C. App. LEXIS 747 (2018).

Because the defendant raised no objection under the Fourth Amendment at the satellite-based monitoring (SBM) hearing, and the issue was not implicitly addressed or ruled upon by the trial court, it was not preserved for appellate review; the court of appeals declined to grant review since the law was well-established at the time of the hearing, and the State was not on notice of the need to address Fourth Amendment issues due to defendant’s failure to raise any constitutional argument. State v. Lindsey, 260 N.C. App. 640, 818 S.E.2d 344, 2018 N.C. App. LEXIS 747 (2018).

General Assembly determined that an offender convicted of a particular classification of crimes is to be subject to lifetime satellite-based monitoring; implicit in this statutory scheme is a recognition of an offender’s risk of re-offending if he or she has committed a certain type of offense. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

§ 14-208.40B. Determination of satellite-based monitoring requirement in certain circumstances. [Effective January 1, 2023]

  1. When an offender is convicted of a reportable conviction as defined by G.S. 14-208.6(4), and there has been no determination by a court on whether the offender shall be required to enroll in satellite-based monitoring, the Division of Prisons shall make an initial determination on whether the offender falls into one of the categories described in G.S. 14-208.40(a) .
  2. If the Division of Prisons determines that the offender falls into one of the categories described in G.S. 14-208.40(a) , the district attorney, representing the Division of Prisons, shall schedule a hearing in superior court for the county in which the offender resides. The Division of Prisons shall notify the offender of the Division of Prisons’ determination and the date of the scheduled hearing by certified mail sent to the address provided by the offender pursuant to G.S. 14-208.7 . The hearing shall be scheduled no sooner than 15 days from the date the notification is mailed. Receipt of notification shall be presumed to be the date indicated by the certified mail receipt. Upon the court’s determination that the offender is indigent and entitled to counsel, the court shall assign counsel to represent the offender at the hearing pursuant to rules adopted by the Office of Indigent Defense Services.
  3. At the hearing, the court shall determine if the offender falls into one of the categories described in G.S. 14-208.40(a) . The court shall hold the hearing and make findings of fact pursuant to G.S. 14-208.40 A. (c1) Repealed by Session Laws 2021-182, s. 2(c ), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

History. 2007-213, s. 3; 2007-484, s. 42(b); 2008-117, s. 16.2; 2009-387, s. 4; 2011-145, s. 19.1(h); 2015-181, ss. 42, 47; 2017-186, s. 2(v); 2021-138, s. 18(e); 2021-180, s. 19C.9(q); 2021-182, s. 2(c).

Section Set Out Twice.

The section above is effective January 1, 2023. For the section as in effect until January 1, 2023, see the preceding section, also numbered G.S. 14-208.40 B.

Editor’s Note.

Session Laws 2015-181, s. 47, provides: “The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority, the Revisor of statutes substituted “ G.S. 14-27.28 ” for “ G.S. 14-27.4 A” in the second paragraph of subsection (c).

Session Laws 2021-138, s. 18(p), made the amendments to this section by Session Laws 2021-138, s. 18(e), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(q), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Session Laws 2021-182, s. 2(m), made the amendments to this section by Session Laws 2021-182, s. 2(c), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Effect of Amendments.

Session Laws 2008-117, s. 16.2, effective December 1, 2008, and applicable to offenses committed on or after that date, in subsection (c), inserted clause (iv) in the second paragraph and made a related change, and substituted “the offense is not an aggravated offense or a violation of G.S. 14-27.2 A or G.S. 14-27.4 A” for “offense is not an aggravated offense” in the third paragraph.

Session Laws 2009-387, s. 4, effective July 31, 2009, in subsection (b), substituted “the district attorney, representing the Department, shall schedule a hearing in superior court for” for “the Department shall schedule a hearing in the court of,” in the first sentence, and added the last sentence.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department.”

Session Laws 2015-181, s. 42, effective December 1, 2015, in subsection (c), substituted “G.S. 14-27.23 or G.S. 14-27.4 A” for “G.S. 14-27.2A or G.S. 14-27.4 A” in the second paragraph, and “G.S. 14-27.23 or G.S. 14-27.2 8” for “G.S. 14-27.2A or G.S. 14-27.4A” in the third paragraph. For applicability, see editor’s note.

Session Laws 2017-186, s. 2(v), effective December 1, 2017, inserted “and Juvenile Justice” and similar language throughout the section.

Session Laws 2021-138, s. 18(e), substituted “reoffender” for “recidivist” in the second paragraphs of subsections (c) and (c1); substituted “that the Division of Adult Correction and Juvenile Justice do a risk assessment of the offender. The Division of Adult Correction and Juvenile Justice shall have up to 60 days to complete the risk assessment of the offender and report the results to the court” for “the offender to enroll in satellite-based monitoring for life” in subsection (c); added the first paragraph of subsection (c1); in (c1), substituted “up to 60 days” for “a minimum of 30 days, but not more than 60 days” in the second paragraph and substituted “court, not to exceed 10 years” for “court” in the third paragraph at the end; and made a stylistic change. For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(q), substituted “Division of Prisons” for “Division of Adult Correction and Juvenile Justice” throughout the section. For effective date and applicability, see editor's note.

Session Laws 2021-182, s. 2(c), deleted the second paragraph of subsection (c); and deleted subsection (c1). For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Tracking Reasonableness: An Evaluation of North Carolina’s Lifetime Satellite-Based Monitoring Statutes in the Wake of Grady v. North Carolina,” see 38 Campbell L. Rev. 151 (2016).

CASE NOTES

Constitutionality. —

Retroactive application of the satellite-based monitoring (SBM) provision in G.S. 14-208.40 B did not violate the state or federal ex post facto clause, because the restrictions imposed by the SBM provisions did not negate the legislature’s expressed civil intent and defendant failed to show that the effects of SBM were sufficiently punitive to transform the civil remedy into a criminal punishment. State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518, 2009 N.C. App. LEXIS 775 (2009).

Trial court did not err in imposing upon defendant enrollment in a satellite-based monitoring (SBM) program for the defendant’s natural life because continuous monitoring did not violate the defendant’s substantive due process rights, and the monitoring was rationally related to a legitimate governmental purpose; defendant’s participation in an SBM program following the defendant’s conviction for an aggravated offense, forcible rape, did not infringe upon any fundamental right, and by statute, the defendant was subject to SBM for life. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

G.S. 14-208.40 A(c) and this section were unconstitutional under the Fourth Amendment as applied to all individuals who, like defendant, were in the third Bowditch category and who were subject to mandatory lifetime satellite-based monitoring based solely on their status as a “recidivist,” and therefore the appellate court erred in limiting its holding to the constitutionality of the program as applied only to defendant. State v. Grady, 372 N.C. 509 , 831 S.E.2d 542, 2019 N.C. LEXIS 799 (2019).

Imposition of lifetime satellite-based monitoring (SBM) was unconstitutional as applied to defendant in part; the imposition of SBM beyond his post-release supervision constituted an unreasonable search, as defendant’s expectation of privacy was too high and the State’s legitimate purpose in monitoring his location, to determine whether he was absconding, was extinguished. SBM during the period of his post-release supervision was reasonable, as his expectation of privacy then was very low. State v. Hilton, 271 N.C. App. 505, 845 S.E.2d 81, 2020 N.C. App. LEXIS 388 (2020), rev'd in part, modified, aff'd, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Statute is facially valid, at least to the extent that it can be applied to defendants under State supervision; imposition of SBM on individuals who are otherwise under State post-release supervision does not violate the North Carolina Constitution. State v. Hilton, 271 N.C. App. 505, 845 S.E.2d 81, 2020 N.C. App. LEXIS 388 (2020), rev'd in part, modified, aff'd, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Applicability. —

Although State v. Kilby , 679 S.E.2d 430 (2009) involved G.S. 14-208.40 B, the satellite-based monitoring (SBM) statute that applied when an offender was convicted of a reportable offense in the past, but the trial court had not previously determined whether the offender should be required to enroll in an SBM program, the analysis in Kilby was equally applicable to defendant’s case under G.S. 14-208.40 A. State v. Causby, 200 N.C. App. 113, 683 S.E.2d 262, 2009 N.C. App. LEXIS 1569 (2009).

Neither the North Carolina Department of Correction nor the trial court was responsible for any type of notice regarding defendant’s eligibility for satellite-based monitoring (SBM) because G.S. 14-208.40 A was the applicable statute for determining his eligibility for enrollment in SBM and the time period of his enrollment since when defendant entered an Alford plea to four counts of taking indecent liberties with a minor in violation of G.S. 14-27.7 A(a), he was newly convicted of a reportable conviction. since defendant was placed on probation and, as a condition of his probation, was incarcerated for 120 days, his eligibility for SBM was determined by the trial court pursuant to G.S. 14-208.40 A, not G.S. 14-208.40B. State v. Jarvis, 214 N.C. App. 84, 715 S.E.2d 252, 2011 N.C. App. LEXIS 1634 (2011).

Subject Matter Jurisdiction vs. Venue. —

In a case challenging enrollment in satellite-based monitoring, a trial court did not lack subject matter jurisdiction because a requirement that a hearing be held in the superior court in the county where the defendant resided related to venue, and this could not have been challenged for the first time on appeal. State v. Jones, 234 N.C. App. 239, 758 S.E.2d 444, 2014 N.C. App. LEXIS 552 (2014).

Trial Court Must Set Definite Time Period for Satellite-Based Monitoring. —

With respect to defendant’s argument that the trial court erred by ordering him to enroll in satellite-based monitoring (SBM) for an indefinite period of time, seven to ten years, the appellate court found that in the absence of any statutory provisions under G.S. 14-208.43(e) to determine when an offender’s monitoring would end if his “period of time” was a range of time, G.S. 14-208.40 B(c) required the trial court to set a definite time period for defendant’s enrollment in SBM. Therefore, the appellate court remanded to the trial court with the direction that if the trial court determined that defendant required the highest possible level of supervision and monitoring per G.S. 14-208.40 B(c), the trial court shall also set a definite period of time for defendant to be enrolled in SBM. State v. Morrow, 200 N.C. App. 123, 683 S.E.2d 754, 2009 N.C. App. LEXIS 1607 (2009), aff'd, 364 N.C. 424 , 700 S.E.2d 224, 2010 N.C. LEXIS 729 (2010).

Jurisdiction Properly Exercised. —

Trial court properly exercised jurisdiction and determined that defendant was subject to satellite-based monitoring (SBM) for the duration of his life because defendant was a person who fit the criteria the legislature intended for participation in the SBM program when the legislation became effective 16 August 2006, and defendant completed his sentence for taking indecent liberties with a minor, a Class F felony, and was eligible for release, but not eligible for post-release supervision, after the effective date of the legislation; G.S. 14-208.40 B seeks to encompass multiple categories of offenders at different stages in the judicial process, and the notice provisions found in G.S. 14-208.40 B(b) are merely that, notice provisions to protect the due process rights of offenders who are not currently incarcerated. State v. Wooten, 194 N.C. App. 524, 669 S.E.2d 749, 2008 N.C. App. LEXIS 2232 (2008), cert. dismissed, 363 N.C. 138 , 676 S.E.2d 308, 2009 N.C. LEXIS 269 (2009).

Satellite-Based Monitoring is Not Punitive in Nature. —

Fact that satellite-based monitoring (SBM) can be one of the conditions imposed upon an offender who did not complete probation, parole, or post-release supervision did not mean that SBM alone was intended as punitive. State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518, 2009 N.C. App. LEXIS 775 (2009).

Reportable Offense. —

Trial court erred in finding that defendant had been convicted of an offense against a minor where defendant was convicted of taking indecent liberties with a child as G.S. 14-208.6(1m) defined an offense against a minor as requiring a conviction of kidnapping, child abduction, or felonious restraint; however, taking indecent liberties with a child was a reportable conviction under G.S. 14-208.40 A(a) and G.S. 14-208.40 B(a) as it was a sexually violent offense under G.S. 14-208.6(5), and was grounds for imposition of satellite-based monitoring, assuming all other requirements are met. State v. Thomas, 225 N.C. App. 631, 741 S.E.2d 384, 2013 N.C. App. LEXIS 174 (2013).

Prior Conviction in a Recidivism Determination Does Not Have to Be for a Reportable Offense. —

Trial court properly determined that defendant was subject to satellite-based monitoring for the duration of his life when the offense on which defendant’s recidivism determination was made, taking indecent liberties with a minor, was clearly one described in G.S. 14-208.5 even though it was not reportable because it predated the act; there is nothing in the statutory language that requires that the prior conviction in a recidivism determination must be for a reportable offense, and the code is clear that the prior conviction must be for an offense that is described in the statute defining reportable offenses. State v. Wooten, 194 N.C. App. 524, 669 S.E.2d 749, 2008 N.C. App. LEXIS 2232 (2008), cert. dismissed, 363 N.C. 138 , 676 S.E.2d 308, 2009 N.C. LEXIS 269 (2009).

Notice of Satellite-Based Monitoring Proceedings. —

Defendant’s appellate claims that defendant received insufficient notice of satellite-based monitoring proceedings were dismissed because defendant did not include the notice defendant received in the appellate record, so the appellate court could not review the adequacy of that notice. State v. Jones, 231 N.C. App. 123, 750 S.E.2d 883, 2013 N.C. App. LEXIS 1233 (2013).

Notice Insufficient. —

Because G.S. 14-208.40(a) required that the Department of Correction notify the offender, in advance of the Satellite-Based Monitoring (SBM) hearing, of the basis for its determination that the offender fell within one of the categories set out in G.S. 14-208.40(a) , making the offender subject to enrollment in the SBM program, and because defendant did not receive such notice, the case was reversed and remand for a new SBM hearing. State v. Stines, 200 N.C. App. 193, 683 S.E.2d 411, 2009 N.C. App. LEXIS 1620 (2009).

Imposition of continuous satellite-based monitoring for the remainder of an offender’s life was reasonable in light of the objective to protect the public, Imposition of continuous satellite-based monitoring (SBM) for the remainder of an offender’s life was reasonable in light of the objective to protect the public, particularly in light of the fact that the Post-Release Supervision and Parole Commission had authority to terminate SBM upon request of certain offenders who had served their sentence and completed any period of probation, parole, or post-release supervision. State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518, 2009 N.C. App. LEXIS 775 (2009).

Order for Satellite-Based Monitoring Proper. —

Defendant’s prior conviction for indecent liberties supported the trial court’s finding that defendant was a recidivist for purposes of the satellite-based monitoring statute, G.S. 14-208.40 B, since: (1) a recidivist was a person who had a prior conviction for an offense that was described in G.S. 14-208.6(4); (2) G.S. 14-208.6(4) described a variety of offense classes, including sexually violent offenses; and (3) a sexually violent offense included the offense of taking indecent liberties with a child as described in G.S. 14-202.1 . State v. Arrington, 226 N.C. App. 311, 741 S.E.2d 453, 2013 N.C. App. LEXIS 339 (2013).

Trial court did not err in requiring defendant to enroll in Satellite-Based Monitoring (SBM) because although there was no evidence establishing that defendant received proper notice of the hearing or that the defendant received notice of the basis upon which the State believed the defendant eligible for SBM, defendant failed to object at the hearing when the trial court was reviewing the findings of fact on the preprinted form. State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674, 2014 N.C. App. LEXIS 174 (2014).

Order for Satellite-Based Monitoring Improper. —

Trial court’s order that defendant enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A was improper because the trial court made no findings justifying the conclusion that defendant required the highest possible level of supervision and monitoring and the trial court erred by doing so; the State presented no evidence which supported a determination of a higher level of risk than the “moderate” rating assigned by the Department of Corrections, and, therefore, there was no need to remand the matter to the trial court for additional findings of fact as requested by the State. State v. Kilby, 198 N.C. App. 363, 679 S.E.2d 430, 2009 N.C. App. LEXIS 1179 (2009).

Defendant’s conviction for taking indecent liberties with a child, a violation of G.S. 14- 202.1, was not an aggravated offense, as defined by G.S. 14-208.6(1a), and, therefore, the trial court erred in ordering defendant to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 B. State v. Singleton, 201 N.C. App. 620, 689 S.E.2d 562, 2010 N.C. App. LEXIS 34 (2010).

Trial court erred in concluding that defendant had committed an aggravated offense and had to enroll in satellite-based monitoring for life, pursuant to G.S. 14-208.40 B(c); indecent liberties with a minor was not an aggravated offense as defined by G.S. 14-208.6(1a). State v. King, 204 N.C. App. 198, 693 S.E.2d 168, 2010 N.C. App. LEXIS 797 (2010).

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Even though it appeared that the trial court could have found that defendant committed an offense that involved the physical, mental, or sexual abuse of a minor, since the record indicated that defendant did not require the highest possible level of supervision and monitoring, the trial court could not order defendant to enroll in a satellite-based program for a period of time to be specified by the trial court pursuant to G.S. 14-208.40 B(c) because the record indicated that the Department of Correction conducted a risk assessment on defendant and found that he “scored one point” and was deemed to be “low risk.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Trial court erred in ordering defendant to enroll in a lifetime satellite-based monitoring program after he pled guilty to taking indecent liberties with a child because defendant’s conviction was not an “aggravated offense” as defined in G.S. 14-208.6(1a); because the elements of the offense of indecent liberties with a child under G.S. 14-202.1(a) required none of the factors required by the definition of an “aggravated offense,” the offense of indecent liberties with a child could not sustain the trial court’s determination that the defendant was convicted of an “aggravated offense.” State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Order enrolling defendant in satellite-based monitoring (SBM) at a probation violation hearing was improper because the trial court had already found that defendant was not subject to SBM at a prior hearing based on the same reportable convictions, and a second such hearing violated G.S. 14-208.40 B(a); further, there was no indication in the record that Department of Correction followed the notice requirements of G.S. 14-208.40 B(b), and the trial court failed to make the findings required by G.S. 14-208.40B(c), as a probation violation is not a crime in itself, much less a “reportable conviction” under G.S. 14-208.40B. State v. Clayton, 206 N.C. App. 300, 697 S.E.2d 428, 2010 N.C. App. LEXIS 1451 (2010).

Trial court erred in ordering satellite-based monitoring, because it expressly found that defendant did not fall within any of the statutorily enumerated categories of offenders requiring satellite-based monitoring (SBM) in G.S. 14-208.40 B(c), but nonetheless ordered defendant to enroll in the SBM program due to its finding that his probation had been revoked and he had failed to complete his sex offender treatment. State v. Hadden, 226 N.C. App. 330, 741 S.E.2d 466, 2013 N.C. App. LEXIS 345 (2013).

Trial court erred in ordering that satellite-based monitoring (SBM) be imposed for the remainder of defendant’s natural life because the State was statutorily required to present to the court any evidence that defendant fell into one of the enumerated categories to impose SBM, but no evidence was presented to the trial court, upon which the trial court could have determined that defendant had obtained the required prior sexual offense convictions to be classified as a recidivist; and defense counsel’s statements and arguments did not stipulate to the prior convictions. State v. Moore, 250 N.C. App. 136, 792 S.E.2d 540, 2016 N.C. App. LEXIS 1059 (2016).

Since satellite-based monitoring (SBM) is not a criminal punishment but rather a civil regulatory scheme, the trial court did not err in ordering defendant to enroll in SBM pursuant to G.S. 14-208.40 B because the enrollment did not violate prohibitions against ex post facto law; mere involvement of the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive, and the involvement of courts of law and superior court judges does not indicate a punitive legislative intent since the superior courts have jurisdiction regarding many different types of civil matters. State v. Wagoner, 199 N.C. App. 321, 683 S.E.2d 391, 2009 N.C. App. LEXIS 1500 (2009), aff'd, 364 N.C. 422 , 700 S.E.2d 222, 2010 N.C. LEXIS 735 (2010).

Since satellite-based monitoring (SBM) is not a criminal punishment but rather a civil regulatory scheme, the trial court did not err in ordering defendant to enroll in SBM pursuant to G.S. 14-208.40 B because the enrollment did not violate prohibitions against double jeopardy; defendant had not been prosecuted a second time for any previously committed offenses but contended that he had been subjected to additional punishments, and because SBM was a civil regulatory scheme and not a punishment, double jeopardy did not apply. State v. Wagoner, 199 N.C. App. 321, 683 S.E.2d 391, 2009 N.C. App. LEXIS 1500 (2009), aff'd, 364 N.C. 422 , 700 S.E.2d 222, 2010 N.C. LEXIS 735 (2010).

Waiver of Argument on Appeal. —

Because the statute’s requirement that a Satellite-Based Monitoring hearing be brought in the county in which the offender resided addressed venue, not subject matter jurisdiction, defendant’s failure to object at the hearing waived his argument on appeal that the trial court lacked subject matter jurisdiction to conduct his hearing. State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674, 2014 N.C. App. LEXIS 174 (2014).

Since defendant failed to challenge the venue of his Satellite-Based Monitoring hearing either in his motion to dismiss or in arguments at the hearing, he waived the issue on appeal. State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674, 2014 N.C. App. LEXIS 174 (2014).

Defendant waived his right to raise a constitutional challenge because he failed to preserve the issue for appeal; in his motion to dismiss the State’s petition to enroll him in Satellite-Based Monitoring (SBM), defendant put forth no argument that his constitutional protection of due process was violated by the State’s failure to provide him proper notice of the hearing, and defendant did not raise any issue related to notice at the SBM hearing. State v. Mills, 232 N.C. App. 460, 754 S.E.2d 674, 2014 N.C. App. LEXIS 174 (2014).

Although the State has the burden of proof of reasonableness of satellite-based monitoring under the Fourth Amendment, the defendant still must raise the constitutional objection so the State will be on notice it must present evidence to meet its burden. State v. Lindsey, 260 N.C. App. 640, 818 S.E.2d 344, 2018 N.C. App. LEXIS 747 (2018).

Because the defendant raised no objection under the Fourth Amendment at the satellite-based monitoring (SBM) hearing, and the issue was not implicitly addressed or ruled upon by the trial court, it was not preserved for appellate review; the court of appeals declined to grant review since the law was well-established at the time of the hearing, and the State was not on notice of the need to address Fourth Amendment issues due to defendant’s failure to raise any constitutional argument. State v. Lindsey, 260 N.C. App. 640, 818 S.E.2d 344, 2018 N.C. App. LEXIS 747 (2018).

General Assembly determined that an offender convicted of a particular classification of crimes is to be subject to lifetime satellite-based monitoring; implicit in this statutory scheme is a recognition of an offender’s risk of re-offending if he or she has committed a certain type of offense. State v. Williams, 235 N.C. App. 201, 761 S.E.2d 662, 2014 N.C. App. LEXIS 744 (2014).

§ 14-208.40C. Requirements of enrollment. [Effective until January 1, 2023]

  1. Any offender required to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B who receives an active sentence shall be enrolled and receive the appropriate equipment immediately upon the offender’s release from the Section of Prisons of the Division of Adult Correction and Juvenile Justice.
  2. Any offender required to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B who receives an intermediate punishment shall, immediately upon sentencing, report to the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice for enrollment in the satellite-based monitoring program, and, if necessary, shall return at any time designated by that Division to receive the appropriate equipment. If the intermediate sentence includes a required period of imprisonment, the offender shall not be required to be enrolled in the satellite-based monitoring program during the period of imprisonment.
  3. Any offender required to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B who receives a community punishment shall, immediately upon sentencing, report to the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice for enrollment in the satellite-based monitoring program, and, if necessary, shall return at any time designated by that Section to receive the appropriate equipment.

History. 2007-213, s. 4; 2007-484, s. 42(b); 2011-145, s. 19.1(j), (k); 2017-186, s. 2(w).

Effect of Amendments.

Session Laws 2011-145, s. 19.1(j) and (k) effective January 1, 2012, substituted “Section of Prisons of the Division of Adult Correction” for “Division of Prisons,” “Section of Community Corrections of the Division of Adult Correction” for “Division of Community Corrections” and “Section” for “Division”.

Session Laws 2017-186, s. 2(w), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.

§ 14-208.40C. Requirements of enrollment. [Effective January 1, 2023]

  1. Any offender required to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B who receives an active sentence shall be enrolled and receive the appropriate equipment immediately upon the offender’s release from the Division of Prisons.
  2. Any offender required to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B who receives an intermediate punishment shall, immediately upon sentencing, report to the Division of Community Supervision and Reentry for enrollment in the satellite-based monitoring program, and, if necessary, shall return at any time designated by that Division to receive the appropriate equipment. If the intermediate sentence includes a required period of imprisonment, the offender shall not be required to be enrolled in the satellite-based monitoring program during the period of imprisonment.
  3. Any offender required to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B who receives a community punishment shall, immediately upon sentencing, report to the Division of Community Supervision and Reentry for enrollment in the satellite-based monitoring program, and, if necessary, shall return at any time designated by that Section to receive the appropriate equipment.

History. 2007-213, s. 4; 2007-484, s. 42(b); 2011-145, s. 19.1(j), (k); 2017-186, s. 2(w); 2021-180, s. 19C.9(r), (v).

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(r), (v), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(j) and (k) effective January 1, 2012, substituted “Section of Prisons of the Division of Adult Correction” for “Division of Prisons,” “Section of Community Corrections of the Division of Adult Correction” for “Division of Community Corrections” and “Section” for “Division”.

Session Laws 2017-186, s. 2(w), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.

Session Laws 2021-180, s. 19C.9(r), (v), substituted “Division of Prisons” for “Section of Prisons of the Division of Adult Correction and Juvenile Justice” in subsection (a); and substituted “Division of Community Supervision and Reentry” for “Section of Community Corrections of the Division of Adult Correction and Juvenile Justice” in subsections (b) and (c). For effective date and applicability, see editor's note.

§ 14-208.41. Enrollment in satellite-based monitoring programs mandatory; length of enrollment; tolling. [Effective until January 1, 2023]

  1. Any person described by G.S. 14-208.40 (a)(1) shall enroll in a satellite-based monitoring program with the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice office in the county where the person resides. The person shall remain enrolled in the satellite-based monitoring program for the registration period imposed for a period required by G.S. 14-208.40 A or G.S. 14-208.40B unless the requirement to enroll in the satellite-based monitoring program is terminated or modified pursuant to G.S. 14-208.43 .
  2. Any person described by G.S. 14-208.40 (a)(2) who is ordered by the court pursuant to G.S. 14-208.40 A or G.S. 14-208.40B to enroll in a satellite-based monitoring program shall do so with the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice office in the county where the person resides. The person shall remain enrolled in the satellite-based monitoring program for the period of time ordered by the court.
  3. Any person described by G.S. 14-208.40 (a)(3), upon completion of active punishment, shall enroll in a satellite-based monitoring program with the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice office in the county where the person resides. The person shall enroll in the satellite-based monitoring program for the entire period of post-release supervision and shall remain enrolled in the satellite-based monitoring program for the period required by G.S. 14-208.40 A or G.S. 14-208.40B unless the requirement to enroll in the satellite-based monitoring program is terminated or modified pursuant to G.S. 14-208.43 . Any term of imprisonment based on revocation of probation or post-release supervision for the conviction which resulted in satellite-based monitoring tolls the period of enrollment.

History. 2006-247, s. 15(a); 2007-213, s. 13; 2007-484, s. 42(b); 2008-117, s. 17; 2008-187, s. 5; 2011-145, s. 19.1(k); 2017-186, s. 2(x); 2021-138, s. 18(f).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.34. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2021-138, s. 18(p), made the amendments to this section by Session Laws 2021-138, s. 18(f), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Effect of Amendments.

Session Laws 2007-213, s. 13, as amended by Session Laws 2007-484, s. 42(b), effective December 1, 2007, substituted “G.S. 14-208.43” for “G.S. 14-208.42” in subsection (a); in subsection (b), inserted “pursuant to G.S. 14-208.40 A or required by the Department pursuant to G.S. 14-208.40 B” near the beginning and added “or the period of time specified by the Department” at the end.

Session Laws 2008-117, s. 17, effective December 1, 2008, and applicable to offenses committed on or after that date, added subsection (c).

Session Laws 2008-187, s. 5, effective August 7, 2008, in subsection (b), deleted “required by the Department pursuant to” preceding “G.S. 14 208.40B” and deleted “or the period of time specified by the Department” at the end.

Session Laws 2011-145, s. 19.1(k), effective January 1, 2012, substituted “Section of Community Corrections of the Division of Adult Correction” for “Division of Community Corrections.”

Session Laws 2017-186, s. 2(x), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.

Session Laws 2021-138, s. 18(f), substituted “enrollment; tolling” for “enrollment” in the section head; in subsection (a), substituted “for a period required by G.S. 14-208.40 A or G.S. 14-208.40 ” for “under G.S. 14-208.23 which is the person’s life” and inserted “or modified”; in subsection (c), substituted “the period required by G.S. 14-208.40A or G.S. 14-208.40B” for “the person’s life,” inserted “or modified,” and added the last sentence; and made stylistic changes. For effective date and applicability, see editor’s note.

§ 14-208.41. Enrollment in satellite-based monitoring programs mandatory; length of enrollment; tolling. [Effective January 1, 2023]

  1. Any person described by G.S. 14-208.40 (a)(1) shall enroll in a satellite-based monitoring program with the Division of Community Supervision and Reentry office in the county where the person resides. The person shall remain enrolled in the satellite-based monitoring program for the registration period imposed for a period required by G.S. 14-208.40 A or G.S. 14-208.40B unless the requirement to enroll in the satellite-based monitoring program is terminated or modified pursuant to G.S. 14-208.43 .
  2. Any person described by G.S. 14-208.40 (a)(2) who is ordered by the court pursuant to G.S. 14-208.40 A or G.S. 14-208.40B to enroll in a satellite-based monitoring program shall do so with the Division of Community Supervision and Reentry office in the county where the person resides. The person shall remain enrolled in the satellite-based monitoring program for the period of time ordered by the court.
  3. Any person described by G.S. 14-208.40 (a)(3), upon completion of active punishment, shall enroll in a satellite-based monitoring program with the Division of Community Supervision and Reentry office in the county where the person resides. The person shall enroll in the satellite-based monitoring program for the entire period of post-release supervision and shall remain enrolled in the satellite-based monitoring program for the period required by G.S. 14-208.40 A or G.S. 14-208.40B unless the requirement to enroll in the satellite-based monitoring program is terminated or modified pursuant to G.S. 14-208.43 . Any term of imprisonment based on revocation of probation or post-release supervision for the conviction which resulted in satellite-based monitoring tolls the period of enrollment.

History. 2006-247, s. 15(a); 2007-213, s. 13; 2007-484, s. 42(b); 2008-117, s. 17; 2008-187, s. 5; 2011-145, s. 19.1(k); 2017-186, s. 2(x); 2021-138, s. 18(f); 2021-180, s. 19C.9(v).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.34. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2021-138, s. 18(p), made the amendments to this section by Session Laws 2021-138, s. 18(f), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(v), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2007-213, s. 13, as amended by Session Laws 2007-484, s. 42(b), effective December 1, 2007, substituted “G.S. 14-208.43” for “G.S. 14-208.42” in subsection (a); in subsection (b), inserted “pursuant to G.S. 14-208.40 A or required by the Department pursuant to G.S. 14-208.40 B” near the beginning and added “or the period of time specified by the Department” at the end.

Session Laws 2008-117, s. 17, effective December 1, 2008, and applicable to offenses committed on or after that date, added subsection (c).

Session Laws 2008-187, s. 5, effective August 7, 2008, in subsection (b), deleted “required by the Department pursuant to” preceding “G.S. 14 208.40B” and deleted “or the period of time specified by the Department” at the end.

Session Laws 2011-145, s. 19.1(k), effective January 1, 2012, substituted “Section of Community Corrections of the Division of Adult Correction” for “Division of Community Corrections.”

Session Laws 2017-186, s. 2(x), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.

Session Laws 2021-138, s. 18(f), substituted “enrollment; tolling” for “enrollment” in the section head; in subsection (a), substituted “for a period required by G.S. 14-208.40 A or G.S. 14-208.40 ” for “under G.S. 14-208.23 which is the person’s life” and inserted “or modified”; in subsection (c), substituted “the period required by G.S. 14-208.40A or G.S. 14-208.40B” for “the person’s life,” inserted “or modified,” and added the last sentence; and made stylistic changes. For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(v), substituted "Division of Community Supervision and Reentry" for “Section of Community Corrections of the Division of Adult Correction and Juvenile Justice” throughout the section. For effective date and applicability, see editor's note.

§ 14-208.42. Offenders required to submit to satellite-based monitoring required to cooperate with Division of Adult Correction and Juvenile Justice upon completion of sentence. [Effective until January 1, 2023]

Notwithstanding any other provision of law, when an offender is required to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B, upon completion of the offender’s sentence and any term of parole, post-release supervision, intermediate punishment, or supervised probation that follows the sentence, the offender shall continue to be enrolled in the satellite-based monitoring program for the period required by G.S. 14-208.40A or G.S. 14-208.40B unless the requirement that the person enroll in a satellite-based monitoring program is terminated or modified pursuant to G.S. 14-208.43 .

The Division of Adult Correction and Juvenile Justice shall have the authority to have contact with the offender at the offender’s residence or to require the offender to appear at a specific location as needed for the purpose of enrollment, to receive monitoring equipment, to have equipment examined or maintained, and for any other purpose necessary to complete the requirements of the satellite-based monitoring program. The offender shall cooperate with the Division of Adult Correction and Juvenile Justice and the requirements of the satellite-based monitoring program until the offender’s requirement to enroll is terminated and the offender has returned all monitoring equipment to the Division of Adult Correction and Juvenile Justice.

History. 2006-247, s. 15(a); 2007-213, s. 5; 2007-484, s. 42(b); 2011-145, s. 19.1(h); 2017-186, s. 2(y); 2021-138, s. 18(g).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.35. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2021-138, s. 18(p), made the insertion of “or modified” near the end of the first paragraph of this section by Session Laws 2021-138, s. 18(g), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Effect of Amendments.

Session Laws 2007-213, s. 5, as amended by Session Laws 2007-484, s. 42(b), effective December 1, 2007, in the section heading, substituted “Offenders” for “Limited registration offenders” and substituted “required to cooperate with Department” for “for life and to continue on unsupervised probation”; rewrote the first paragraph; and added the second paragraph.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department.”

Session Laws 2017-186, s. 2(y), effective December 1, 2017, inserted “and Juvenile Justice” in the section heading and three times in the second paragraph.

Session Laws 2021-138, s. 18(g), inserted “or modified” in the first paragraph. For effective date and applicability, see editor’s note.

CASE NOTES

Since satellite-based monitoring (SBM) is not a criminal punishment but rather a civil regulatory scheme, the trial court did not err in ordering defendant to enroll in SBM pursuant to G.S. 14-208.40 B because the enrollment did not violate prohibitions against ex post facto law; the revision of G.S. 14-208.40 B was not an attempt by the General Assembly to cover up its punitive intent because the 2007 amendment to G.S. 14-208.42 made a substantive change to the statute since the requirements of SBM were different from the conditions of unsupervised probation required by the 2006 statute. State v. Wagoner, 199 N.C. App. 321, 683 S.E.2d 391, 2009 N.C. App. LEXIS 1500 (2009), aff'd, 364 N.C. 422 , 700 S.E.2d 222, 2010 N.C. LEXIS 735 (2010).

§ 14-208.42. Offenders required to submit to satellite-based monitoring required to cooperate with Division of Prisons upon completion of sentence. [Effective January 1, 2023]

Notwithstanding any other provision of law, when an offender is required to enroll in satellite-based monitoring pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B, upon completion of the offender’s sentence and any term of parole, post-release supervision, intermediate punishment, or supervised probation that follows the sentence, the offender shall continue to be enrolled in the satellite-based monitoring program for the period required by G.S. 14-208.40A or G.S. 14-208.40B unless the requirement that the person enroll in a satellite-based monitoring program is terminated or modified pursuant to G.S. 14-208.43 .

The Division of Prisons shall have the authority to have contact with the offender at the offender’s residence or to require the offender to appear at a specific location as needed for the purpose of enrollment, to receive monitoring equipment, to have equipment examined or maintained, and for any other purpose necessary to complete the requirements of the satellite-based monitoring program. The offender shall cooperate with the Division of Prisons and the requirements of the satellite-based monitoring program until the offender’s requirement to enroll is terminated and the offender has returned all monitoring equipment to the Division of Prisons.

History. 2006-247, s. 15(a); 2007-213, s. 5; 2007-484, s. 42(b); 2011-145, s. 19.1(h); 2017-186, s. 2(y); 2021-138, s. 18(g); 2021-180, s. 19C.9(q).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.35. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2021-138, s. 18(p), made the insertion of “or modified” near the end of the first paragraph of this section by Session Laws 2021-138, s. 18(g), effective December 1, 2021, and applicable to satellite-based monitoring determinations on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(q), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2007-213, s. 5, as amended by Session Laws 2007-484, s. 42(b), effective December 1, 2007, in the section heading, substituted “Offenders” for “Limited registration offenders” and substituted “required to cooperate with Department” for “for life and to continue on unsupervised probation”; rewrote the first paragraph; and added the second paragraph.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department.”

Session Laws 2017-186, s. 2(y), effective December 1, 2017, inserted “and Juvenile Justice” in the section heading and three times in the second paragraph.

Session Laws 2021-138, s. 18(g), inserted “or modified” in the first paragraph. For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(q), substituted “Division of Prisons” for “Division of Adult Correction and Juvenile Justice” in the section heading and three times in the last paragraph. For effective date and applicability, see editor's note.

CASE NOTES

Since satellite-based monitoring (SBM) is not a criminal punishment but rather a civil regulatory scheme, the trial court did not err in ordering defendant to enroll in SBM pursuant to G.S. 14-208.40 B because the enrollment did not violate prohibitions against ex post facto law; the revision of G.S. 14-208.40 B was not an attempt by the General Assembly to cover up its punitive intent because the 2007 amendment to G.S. 14-208.42 made a substantive change to the statute since the requirements of SBM were different from the conditions of unsupervised probation required by the 2006 statute. State v. Wagoner, 199 N.C. App. 321, 683 S.E.2d 391, 2009 N.C. App. LEXIS 1500 (2009), aff'd, 364 N.C. 422 , 700 S.E.2d 222, 2010 N.C. LEXIS 735 (2010).

§ 14-208.43. Petition for termination or modification of the satellite-based monitoring requirement.

  1. An offender who is ordered on or after December 1, 2021, to enroll in satellite-based monitoring may file a petition for termination or modification of the monitoring requirement with the superior court in the county where the conviction occurred five years after the date of initial enrollment.
  2. The district attorney in the district in which the petition is filed shall be given notice of the petition at least three weeks before the hearing on the matter. The petitioner may present evidence in support of the petition, and the district attorney may present evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be denied.
  3. The victim of the underlying offense may appear and be heard by the court in a proceeding regarding a petition for termination or modification of satellite-based monitoring requirement. If the victim has elected to receive notices of such proceedings, the district attorney’s office shall notify the victim of the date, time, and place of the hearing. The district attorney’s office may provide the required notification electronically or by telephone, unless the victim requests otherwise. The victim shall be responsible for notifying the district attorney’s office of any changes in the victim’s address and telephone number or other contact information. The judge in any court proceeding subject to this section shall inquire as to whether the victim is present and wishes to be heard. If the victim is present and wishes to be heard, the court shall grant the victim an opportunity to be reasonably heard. The right to be reasonably heard may be exercised, at the victim’s discretion, through an oral statement, submission of a written statement, or submission of an audio or video statement.
  4. The petition may be granted only if the court makes all of the following findings:
    1. The petitioner has been enrolled in the satellite-based monitoring program for at least five years.
    2. The petitioner no longer requires the highest possible level of supervision and monitoring for the period initially ordered.
  5. The court may order any of the following:
    1. The petitioner to remain enrolled in the satellite-based monitoring program for a period less than the period initially ordered, to be specified by the court.
    2. The petitioner’s requirement to enroll in the satellite-based monitoring program be terminated.
  6. If the court denies the petition, the person may again petition the court for relief in accordance with this section two years from the date of the denial of the original petition to terminate the satellite-based monitoring requirement. If the court grants the petition, the clerk of court shall forward a certified copy of the order to the Post Release Supervision and Parole Commission.

History. 2006-247, s. 15(a); 2007-213, s. 11; 2007-484, s. 42(b); 2008-117, s. 18; 2011-145, s. 19.1(h); 2017-186, s. 2(z); 2021-138, s. 18(h); 2021-182, s. 2(d), (j).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.36. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2021-138, s. 18(p), as amended by Session Laws 2021-182, s. 2(j), made the amendments to this section by Session Laws 2021-138, s. 18(h), effective December 1, 2021, and applicable to any individual ordered to enroll in satellite-based monitoring on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-180, s. 19C.9(u) listed this section among the sections in which it substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety.” However, that language was deleted previously from this section by Session Laws 2021-138, s. 18(h).

Effect of Amendments.

Session Laws 2007-213, s. 11, as amended by Session Laws 2007-484, s. 42(b), effective December 1, 2007, added subsection (d1).

Session Laws 2008-117, s. 18, effective December 1, 2008, and applicable to offenses committed on or after that date, substituted “14-208.40(a)(1) or G.S. 14-208.40(a)(3)” for “14-308.40(a)(1)” in subsection (a).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2017-186, s. 2(z), effective December 1, 2017, inserted “and Juvenile Justice” in subsection (d1).

Session Laws 2021-138, s. 18(h), rewrote the section. For effective date and applicability, see editor’s note.

Session Laws 2021-182, s. 2(d), in the first sentence of (a), deleted “described by G.S. 208.40(a)(1) or G.S. 14-208.40(a)(3)” after “offender”; substituted “ordered on or after December 1, 2021, to enroll in” for “required to submit to”; substituted “monitoring ” for “monitoring”; in (d)(2), substituted “monitoring for the period initially ordered.” for “monitoring for 10 years.”; in (e)(1), substituted “less than the period initially ordered,” for “of time”; substituted “court.” for “court, not to exceed a total of 10 years.”; in (f), deleted the last sentence. For effective date and applicability, see editor's note.

CASE NOTES

Constitutionality. —

Privacy intrusion effected by satellite-based monitoring (SBM) falls on the less intrusive side of the regulatory spectrum and provides information to the State that is not ordinarily required for the general public, protects the public through deterrence, and allows for termination; given the the circumstances, SBM’s collection of information regarding physical location and movements effects only an incremental intrusion into an aggravated offender’s diminished expectation of privacy. State v. Hilton, 2021-NCSC-115, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Construction. —

Nothing in the statute strips a trial court of any authority to entertain a motion to terminate the monitoring in the future before a defendant’s post-release supervision period ends if it determines that the satellite-based monitoring search is no longer constitutionally reasonable. State v. Hilton, 271 N.C. App. 505, 845 S.E.2d 81, 2020 N.C. App. LEXIS 388 (2020), rev'd in part, modified, aff'd, 378 N.C. 692 , 862 S.E.2d 806, 2021- NCSC-115, 2021 N.C. LEXIS 937 (2021).

Trial Court Must Set Definite Time Period for Satellite-Based Monitoring. —

With respect to defendant’s argument that the trial court erred by ordering him to enroll in satellite-based monitoring (SBM) for an indefinite period of time, seven to ten years, the appellate court found that in the absence of any statutory provisions under G.S. 14-208.43(e) to determine when an offender’s monitoring would end if his “period of time” was a range of time, G.S. 14-208.40 B(c) required the trial court to set a definite time period for defendant’s enrollment in SBM. Therefore, the appellate court remanded to the trial court with the direction that if the trial court determined that defendant required the highest possible level of supervision and monitoring per G.S. 14-208.40 B(c), the trial court shall also set a definite period of time for defendant to be enrolled in SBM. State v. Morrow, 200 N.C. App. 123, 683 S.E.2d 754, 2009 N.C. App. LEXIS 1607 (2009), aff'd, 364 N.C. 424 , 700 S.E.2d 224, 2010 N.C. LEXIS 729 (2010).

Satellite-Based Monitoring for Sex Offenders. —

Trial court erred in imposing satellite-based monitoring (SBM) on defendant, a sex offender, for thirty years because the State failed to present any evidence that SBM was effective to protect the public from sex offenders; the intrusion of SBM on defendant was great because unlike an order for lifetime SBM, which was subject to periodic challenge and review, an order imposing SBM for a period of years was not subject to later review by the trial court. State v. Griffin, 260 N.C. App. 629, 818 S.E.2d 336, 2018 N.C. App. LEXIS 792 (2018).

§ 14-208.44. Failure to enroll; tampering with device. [Effective until January 1, 2023]

  1. Any person required to enroll in a satellite-based monitoring program who fails to enroll shall be guilty of a Class F felony.
  2. Any person who intentionally tampers with, removes, vandalizes, or otherwise interferes with the proper functioning of a device issued pursuant to a satellite-based monitoring program to a person duly enrolled in the program shall be guilty of a Class E felony.
  3. Any person required to enroll in a satellite-based monitoring program who fails to provide necessary information to the Division of Adult Correction and Juvenile Justice or fails to cooperate with the Division of Adult Correction and Juvenile Justice’s guidelines and regulations for the program shall be guilty of a Class 1 misdemeanor.
  4. For purposes of this section, “enroll” shall include appearing, as directed by the Division of Adult Correction and Juvenile Justice to receive the necessary equipment.

History. 2006-247, s. 15(a); 2007-213, s. 6; 2011-145, s. 19.1(h); 2017-186, s. 2(aa).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.37. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Effect of Amendments.

Session Laws 2007-213, s. 6, effective December 1, 2007, and applicable to offenses committed on or after that date, substituted “vandalizes, or otherwise interferes with the proper functioning of” for “or vandalizes” in subsection (b); and added subsections (c) and (d).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department.”

Session Laws 2017-186, s. 2(aa), effective December 1, 2017, inserted “and Juvenile Justice” in subsections (c) and (d) and substituted “Correction and Juvenile Justice’s” for “Correction’s” near the end of subsection (c).

§ 14-208.44. Failure to enroll; tampering with device. [Effective January 1, 2023]

  1. Any person required to enroll in a satellite-based monitoring program who fails to enroll shall be guilty of a Class F felony.
  2. Any person who intentionally tampers with, removes, vandalizes, or otherwise interferes with the proper functioning of a device issued pursuant to a satellite-based monitoring program to a person duly enrolled in the program shall be guilty of a Class E felony.
  3. Any person required to enroll in a satellite-based monitoring program who fails to provide necessary information to the Division of Prisons or fails to cooperate with the Division of Prisons’ guidelines and regulations for the program shall be guilty of a Class 1 misdemeanor.
  4. For purposes of this section, “enroll” shall include appearing, as directed by the Division of Prisons to receive the necessary equipment.

History. 2006-247, s. 15(a); 2007-213, s. 6; 2011-145, s. 19.1(h); 2017-186, s. 2(aa); 2021-180, s. 19C.9(q).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.37. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(q), effective January 1, 2023, and further provides: "On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2007-213, s. 6, effective December 1, 2007, and applicable to offenses committed on or after that date, substituted “vandalizes, or otherwise interferes with the proper functioning of” for “or vandalizes” in subsection (b); and added subsections (c) and (d).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction” for “Department.”

Session Laws 2017-186, s. 2(aa), effective December 1, 2017, inserted “and Juvenile Justice” in subsections (c) and (d) and substituted “Correction and Juvenile Justice’s” for “Correction’s” near the end of subsection (c).

Session Laws 2021-180, s. 19C.9(q), substituted “Division of Prisons” for “Division of Adult Correction and Juvenile Justice” throughout the section. For effective date and applicability, see editor's note.

§ 14-208.45. Fees. [Effective until January 1, 2023]

  1. Except as provided in subsections (b) and (b1) of this section, each person required to enroll pursuant to this Part shall pay a one-time fee of ninety dollars ($90.00). The fee shall be payable to the clerk of superior court, and the fees shall be remitted quarterly to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety. This fee is intended to offset only the costs associated with the time-correlated tracking of the geographic location of subjects using the location tracking crime correlation system.
  2. When a court determines a person is required to enroll pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B, the court may exempt a person from paying the fee required by subsection (a) of this section only for good cause and upon motion of the person required to enroll in satellite-based monitoring. The court may require that the fee be paid in advance or in a lump sum or sums, and a probation officer may require payment by those methods.
  3. When a person is required to enroll based on a determination by the Division of Adult Correction and Juvenile Justice pursuant to G.S. 14-208.40 B, the Division of Adult Correction and Juvenile Justice shall have the authority to exempt the person from paying the fee only for good cause and upon request of the person required to enroll in satellite-based monitoring. The Division of Adult Correction and Juvenile Justice may require that the fee be paid in advance or in a lump sum or sums, and a probation officer may require payment by those methods.

History. 2006-247, s. 15(a); 2007-213, s. 12; 2007-484, ss. 42(a), (b); 2011-145, s. 19.1(h); 2017-186, s. 2(bb).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.38. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2007-213, s. 12, and Session Laws 2007-484, s. 42(a) both amended G.S. 14-208.45 . However, the amendment by Session Laws 2007-484, s. 42(a) did not account for all of the changes made by Session Laws 2007-213, s. 12, and the section has been set out in the form above at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2007-213, s. 12, as amended by Session Laws 2007-484, s. 42(a) and (b), effective December 1, 2007, rewrote the section.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” and “Division of Adult Correction” for “Department.”

Session Laws 2017-186, s. 2(bb), effective December 1, 2017, inserted “and Juvenile Justice” in subsections (a) and (c).

§ 14-208.45. Fees. [Effective January 1, 2023]

  1. Except as provided in subsections (b) and (b1) of this section, each person required to enroll pursuant to this Part shall pay a one-time fee of ninety dollars ($90.00). The fee shall be payable to the clerk of superior court, and the fees shall be remitted quarterly to the Division of Community Supervision and Reentry of the Department of Adult Correction. This fee is intended to offset only the costs associated with the time-correlated tracking of the geographic location of subjects using the location tracking crime correlation system.
  2. When a court determines a person is required to enroll pursuant to G.S. 14-208.40 A or G.S. 14-208.40 B, the court may exempt a person from paying the fee required by subsection (a) of this section only for good cause and upon motion of the person required to enroll in satellite-based monitoring. The court may require that the fee be paid in advance or in a lump sum or sums, and a probation officer may require payment by those methods.
  3. When a person is required to enroll based on a determination by the Division of Community Supervision and Reentry pursuant to G.S. 14-208.40 B, the Division of Community Supervision and Reentry shall have the authority to exempt the person from paying the fee only for good cause and upon request of the person required to enroll in satellite-based monitoring. The Division of Community Supervision and Reentry may require that the fee be paid in advance or in a lump sum or sums, and a probation officer may require payment by those methods.

History. 2006-247, s. 15(a); 2007-213, s. 12; 2007-484, ss. 42(a), (b); 2011-145, s. 19.1(h); 2017-186, s. 2(bb); 2021-180, s. 19C.9(t).

Editor’s Note.

Session Laws 2006-247, s. 15(a), enacted this section as G.S. 14-208.38. It was recodified as this section at the direction of the Revisor of Statutes.

Session Laws 2006-247, s. 15(l), provides: “Unless otherwise provided in the section, this section is effective when it becomes law [August 16, 2006] and applies to offenses committed on or after that date. This section also applies to any person sentenced to intermediate punishment on or after that date and to any person released from prison by parole or post-release supervision on or after that date. This section also applies to any person who completes his or her sentence on or after the effective date of this section who is not on post-release supervision or parole. However, the requirement to enroll in a satellite-based program is not mandatory until January 1, 2007, when the program is established.”

Session Laws 2007-213, s. 12, and Session Laws 2007-484, s. 42(a) both amended G.S. 14-208.45 . However, the amendment by Session Laws 2007-484, s. 42(a) did not account for all of the changes made by Session Laws 2007-213, s. 12, and the section has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2021-180, s. 19C.9(t), effective January 1, 2023, amended this section in the coded bill drafting format provided by G.S. 120-20.1 by substituting “Division of Community Supervision and Reentry of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Adult Correction” wherever it appeared. The amendment did not account for the precise language in subsection (c) of this section. At the direction of the Revisor of Statutes, “Division of Community Supervision and Reentry” has been substituted for “Division of Adult Correction and Juvenile Justice” in subsection (c).

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(t), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2007-213, s. 12, as amended by Session Laws 2007-484, s. 42(a) and (b), effective December 1, 2007, rewrote the section.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” and “Division of Adult Correction” for “Department.”

Session Laws 2017-186, s. 2(bb), effective December 1, 2017, inserted “and Juvenile Justice” in subsections (a) and (c).

Session Laws 2021-180, s. 19C.9(t), “Division of Community Supervision and Reentry of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in subsection (a). For effective date and applicability, see editor's note.

§ 14-208.46. Petition for post enrollment determination for satellite-based monitoring enrollees.

  1. An offender who was ordered prior to December 1, 2021, to enroll in satellite-based monitoring for a period longer than 10 years may file a petition for termination or modification of the monitoring requirement with the superior court in the county where the conviction occurred.
  2. The district attorney in the district in which the petition is filed shall be given notice of the petition at least three weeks before the hearing on the matter. The petitioner may present evidence in support of the petition, and the district attorney may present evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be denied.
  3. The victim of the underlying offense may appear and be heard by the court in a proceeding regarding a petition for termination or modification of satellite-based monitoring requirement. If the victim has elected to receive notices of such proceedings, the district attorney’s office shall notify the victim of the date, time, and place of the hearing. The district attorney’s office may provide the required notification electronically or by telephone, unless the victim requests otherwise. The victim shall be responsible for notifying the district attorney’s office of any changes in the victim’s address and telephone number or other contact information. The judge in any court proceeding subject to this section shall inquire as to whether the victim is present and wishes to be heard. If the victim is present and wishes to be heard, the court shall grant the victim an opportunity to be reasonably heard. The right to be reasonably heard may be exercised, at the victim’s discretion, through an oral statement, submission of a written statement, or submission of an audio or video statement.
  4. If the petitioner has not been enrolled in the satellite-based monitoring program for at least 10 years, the court shall order the petitioner to remain enrolled in the satellite-based monitoring program for a total of 10 years.
  5. If the petitioner has been enrolled in the satellite-based monitoring program for more than 10 years, the court shall order the petitioner’s requirement to enroll in the satellite-based monitoring program be terminated.
  6. The court has no authority to terminate the satellite-based monitoring requirement for an offender filing a petition pursuant to this section prior to 10 years of enrollment.

History. 2021-138, s. 18(i); 2021-182, s. 2(e), (j).

Editor’s Note.

Session Laws 2021-138, s. 18(p), as amended by Session Laws 2021-182, s. 2(j), made the amendments to this section by Session Laws 2021-138, s. 18(i), effective December 1, 2021, and applicable to any individual ordered to enroll in satellite-based monitoring pursuant to a court order issued prior to that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Session Laws 2021-138, s. 18(p), as amended by Session Laws 2021-182, s. 2(j), made this section, as added by Session Laws 2021-138, s. 18(i), effective December 1, 2021, and applicable to any individual ordered to enroll in satellite-based monitoring pursuant to a court order issued prior to that date.

Session Laws 2021-182, s. 2(m), made the amendments to the section heading and to subsections (a) and (f) of this section by Session Laws 2021-182, s. 2(e), effective December 1, 2021, and applicable to any individual ordered to enroll in satellite-based monitoring prior to that date.

Effect of Amendments.

Session Laws 2021-182, s. 2(e), rewrote the section heading, which formerly read “Petition for postenrollment determination for lifetime satellite-based monitoring enrollees”; in subsection (a), substituted “was ordered prior to December 1, 2021, to enroll in satellite-based monitoring for a period longer than 10 years” for “is enrolled in a satellite-based monitoring for life” near the beginning, and deleted “five years after the date of initial enrollment” following “occurred” at the end; and, in subsection (f), substituted “filing a petition pursuant to this section” for “ordered to satellite-based monitoring for life” near the middle. For effective date and applicability, see editor's note.

Subchapter VIII. Offenses Against Public Justice.

Article 28. Perjury.

§ 14-209. (Effective until December 1, 2021) Punishment for perjury.

If any person knowingly and intentionally makes a false statement under oath or affirmation in any suit, controversy, matter or cause, depending in any of the courts of the State; in any deposition or affidavit taken pursuant to law; in any oath or affirmation duly administered of or concerning any matter or thing where such person is lawfully required to be sworn or affirmed, that person is guilty of perjury, and punished as a Class F felon.

History. 1791, c. 338, s. 1, P.R; R.C., c. 34, s. 49; Code, s. 1092; Rev., s. 3615; C.S., s. 4364; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1202; 1994, Ex. Sess., c. 24, s. 14(c); 2019-243, s. 3(c).

Cross References.

As to swearing falsely to official reports, see G.S. 14-232 .

As to form of bill for perjury, see G.S. 15-145 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to making false affidavits in applications for motor vehicle licenses, see G.S. 20-31 .

As to false swearing by creditor in assignment for benefit of creditors, see G.S. 23-9.

As to punishment for making false statement in any financial or other statement required under the provisions of the insurance statutes, see G.S. 58-2-180 .

As to false swearing in an investigation of trusts and combinations in restraint of trade, see G.S. 75-12 .

As to perjury in application for oyster license, see G.S. 113-203 .

As to perjury prosecution for knowingly making an untrue certification under Article 22A of Chapter 163, relating to contributions and expenses in political campaigns, see G.S. 163-278.32 .

Effect of Amendments.

Session Laws 2019-243, s. 3(c), effective November 6, 2019, rewrote the section.

CASE NOTES

Purpose. —

Law of perjury was intended to afford defendant greater protection against the chance of unjust conviction than is ordinarily afforded in prosecuting for crime. State v. Horne, 28 N.C. App. 475, 221 S.E.2d 715, 1976 N.C. App. LEXIS 2733 (1976).

Definition of Perjury. —

Perjury, as defined by common law and enlarged by this section, is a false statement under oath, knowingly, willfully and designedly made, in a proceeding in a court of competent jurisdiction, or concerning a matter wherein the affiant is required by law to be sworn, as to some matter material to the issue or point in question. State v. Smith, 230 N.C. 198 , 52 S.E.2d 348, 1949 N.C. LEXIS 589 (1949); State v. Sailor, 240 N.C. 113 , 81 S.E.2d 191, 1954 N.C. LEXIS 650 (1954); State v. Lucas, 244 N.C. 53 , 92 S.E.2d 401, 1956 N.C. LEXIS 635 (1956); State v. Arthur, 244 N.C. 582 , 94 S.E.2d 646, 1956 N.C. LEXIS 481 (1956); State v. Wilson, 30 N.C. App. 149, 226 S.E.2d 518, 1976 N.C. App. LEXIS 2171 (1976).

This section does not specifically define perjury or state all the elements essential to constitute the crime. It enlarges the scope of the criminality of a false oath, and prescribes punishment. The definition is derived from the common law. State v. Smith, 230 N.C. 198 , 52 S.E.2d 348, 1949 N.C. LEXIS 589 (1949).

Essential Elements. —

Elements essential to constitute perjury are substantially these: A false statement under oath, knowingly, willfully and designedly made, in a proceeding in a court of competent jurisdiction, or concerning a matter wherein the affiant is required by law to be sworn, as to some matter material to the issue or point in question. To constitute materiality essential to sustain a charge of perjury the false testimony must be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact. State v. Chaney, 256 N.C. 255 , 123 S.E.2d 498, 1962 N.C. LEXIS 422 (1962).

The administration of an oath is an essential element of perjury. State v. Glisson, 93 N.C. 506 , 1885 N.C. LEXIS 103 (1885).

As is jurisdiction of the court. Boling v. Luther, 4 N.C. 635 , 1817 N.C. LEXIS 83 (1817); State v. Alexander, 11 N.C. 182 , 1825 N.C. LEXIS 24 (1825); Governor ex rel. Halcombe v. Deaver, 3 N.C. 56 (1798).

Offense Must Be Willful and Corrupt. —

Where the defendant swears to an answer in a civil action before one authorized to administer the oath and the answer contains a false statement of fact, in order to convict him of perjury under the provisions of this section it must be shown that he “willfully and corruptly” committed the offense. State v. Dowd, 201 N.C. 714 , 161 S.E. 205, 1931 N.C. LEXIS 77 (1931).

What Statements Are Not Perjurious. —

False statements made unintentionally or with the honest belief that one is telling the truth are not perjurious. Hill v. Winn-Dixie Charlotte, Inc., 100 N.C. App. 518, 397 S.E.2d 347, 1990 N.C. App. LEXIS 1056 (1990).

False Statement Must Be Material to Issue. —

A false statement under oath must be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact, in order to be material to the issue and constitute a basis for a prosecution for perjury. State v. Smith, 230 N.C. 198 , 52 S.E.2d 348, 1949 N.C. LEXIS 589 (1949).

In a prosecution for willful failure of defendant to support his illegitimate child, defendant swore he had not had sexual intercourse with prosecutrix and was not the father of her child, and testified as to the number of times he had visited prosecutrix. In a subsequent prosecution for perjury it was made to appear that defendant had visited prosecutrix or had been seen with her more times than he had admitted under oath, but there was no evidence that he was the father of the child. It was held that the proof of false testimony did not relate to matters determinative of the issue in the first prosecution, and the evidence was insufficient to withstand nonsuit in the prosecution for perjury. State v. Smith, 230 N.C. 198 , 52 S.E.2d 348, 1949 N.C. LEXIS 589 (1949).

One of the essential elements of the crime of perjury is that the false statement must be material to an issue or point in question. State v. Chaney, 256 N.C. 255 , 123 S.E.2d 498, 1962 N.C. LEXIS 422 (1962). See also, State v. Cline, 146 N.C. 640 , 61 S.E. 522, 1908 N.C. LEXIS 278 (1908); State v. Lucas, 247 N.C. 208 , 100 S.E.2d 366, 1957 N.C. LEXIS 655 (1957).

Materiality of False Testimony Is a Question of Law. —

In a trial for perjury, the question of the materiality of the alleged false testimony is in its nature a question of law for the court rather than of fact for the jury. State v. Wilson, 30 N.C. App. 149, 226 S.E.2d 518, 1976 N.C. App. LEXIS 2171 (1976).

Solicitation to commit perjury is a felony within the terms of G.S. 14-3(b) and is properly within the jurisdiction of the superior court. State v. Huff, 56 N.C. App. 721, 289 S.E.2d 604, 1982 N.C. App. LEXIS 2473 (1982).

Acquittal No Shield from Charge of Perjury. —

To hold that a person could go into a court of justice and by perjured testimony secure an acquittal and by that acquittal be shielded from a charge of perjury would be a dangerous doctrine. State v. King, 267 N.C. 631 , 148 S.E.2d 647, 1966 N.C. LEXIS 1095 (1966).

A verdict of acquittal is not equivalent to an affirmative finding that all of defendant’s testimony at a former trial was true. State v. King, 267 N.C. 631 , 148 S.E.2d 647, 1966 N.C. LEXIS 1095 (1966).

Former acquittal of malicious injury to personal property under G.S. 14-160 would not support a plea of former jeopardy in a prosecution for perjury committed at the trial, since the crimes are not the same either in fact or in law and the charge of perjury was not based on the assumption that defendant was guilty of the charge of malicious injury, and his acquittal upon the latter charge did not necessarily establish the fact that all material evidence given by him in that case was true. State v. Leonard, 236 N.C. 126 , 72 S.E.2d 1, 1952 N.C. LEXIS 486 (1952), cert. denied, 344 U.S. 916, 73 S. Ct. 339, 97 L. Ed. 706, 1953 U.S. LEXIS 2529 (1953).

Civil Action Will Not Lie. —

Aside from defamation and malicious prosecution, the courts refuse to recognize any injury from false testimony on which a civil action for damages can be maintained, and no action for damages lies for false testimony in a civil suit, whereby the plaintiff fails to recover a judgment, or a judgment is rendered against him. Brewer v. Carolina Coach Co., 253 N.C. 257 , 116 S.E.2d 725, 1960 N.C. LEXIS 495 (1960).

It seems to be the general rule that a civil action in tort cannot be maintained upon the ground that a defendant gave false testimony or procured other persons to give false or perjured testimony. Brewer v. Carolina Coach Co., 253 N.C. 257 , 116 S.E.2d 725, 1960 N.C. LEXIS 495 (1960).

Perjured testimony and the subornation of perjured testimony are criminal offenses, but neither are torts supporting a civil action for damages. Gillikin v. Springle, 254 N.C. 240 , 118 S.E.2d 611, 1961 N.C. LEXIS 401 (1961).

Vacating Judgment Because of Perjured Testimony. —

A judgment cannot be vacated because of perjured testimony unless the party charged with perjury has been indicted and convicted or he has passed beyond the jurisdiction of courts and is not amenable to criminal process. Gillikin v. Springle, 254 N.C. 240 , 118 S.E.2d 611, 1961 N.C. LEXIS 401 (1961).

Irregularity of Warrant Immaterial. —

When perjury is charged to have been committed by a witness in the trial of a criminal proceeding which was begun by warrant, if the court had jurisdiction to investigate the offense charged, it is no defense that the warrant was issued without complaint or affidavit. State v. Peters, 107 N.C. 876 , 12 S.E. 74, 1890 N.C. LEXIS 164 (1890).

Burden of Proof on State. —

The burden is not on the defendant in perjury to show the truth of the matter at issue, but the burden is on the State to show that it is false. State v. Cline, 150 N.C. 854 , 64 S.E. 591, 1909 N.C. LEXIS 171 (1909).

Corroborative Evidence Required. —

To prove the falsity of the oath, the evidence must not necessarily equal in weight the testimony of two witnesses. It is sufficient if there is the testimony of one witness and corroborative circumstances sufficient to turn the scale against the oath which is charged to have been false. State v. Peters, 107 N.C. 876 , 12 S.E. 74, 1890 N.C. LEXIS 164 (1890).

In a prosecution for perjury it is required that the falsity of the oath be established by the testimony of two witnesses, or by one witness and corroborating circumstances sufficient to turn the scales against the defendant’s oath. State v. Sailor, 240 N.C. 113 , 81 S.E.2d 191, 1954 N.C. LEXIS 650 (1954). See also State v. Arthur, 244 N.C. 582 , 94 S.E.2d 646, 1956 N.C. LEXIS 481 (1956); State v. Allen, 260 N.C. 220 , 132 S.E.2d 302, 1963 N.C. LEXIS 646 (1963).

To sustain a conviction for perjury, the falsity of the oath must be directly proved by one witness and there must be corroborating evidence of independent and supplemental character, sufficient to resolve “the dilemma of weighing [one] oath against [another].” State v. Horne, 28 N.C. App. 475, 221 S.E.2d 715, 1976 N.C. App. LEXIS 2733 (1976).

In a prosecution for perjury it is required that the falsity of the oath be established by the testimony of two witnesses, or by one witness and corroborating circumstances sufficient to turn the scales against the defendant’s oath. State v. Wilson, 30 N.C. App. 149, 226 S.E.2d 518, 1976 N.C. App. LEXIS 2171 (1976).

In a prosecution for perjury, North Carolina required that the falsity of the oath be established by the testimony of at least two witnesses, or from the testimony of one witness, along with corroborating circumstances, and if the State relied upon the testimony of only one witness, then the falsity of the statement had to be directly proved by the witness and there had to be independent corroborating evidence of the falsity. State v. Denny, 179 N.C. App. 822, 635 S.E.2d 438, 2006 N.C. App. LEXIS 2158 (2006), aff'd in part, modified, rev'd in part, 361 N.C. 662 , 652 S.E.2d 212, 2007 N.C. LEXIS 1095 (2007).

Circumstantial evidence of perjury alone is not sufficient. State v. Horne, 28 N.C. App. 475, 221 S.E.2d 715, 1976 N.C. App. LEXIS 2733 (1976).

Evidence Must Relate to Statement upon Which Indictment Predicated. —

Testimony of two or more witnesses as to conflicting statements made by defendant while under oath in courts of competent jurisdiction, but without evidence that the statement upon which the bill of indictment was predicated was the false testimony, is insufficient to be submitted to the jury in a prosecution for perjury. State v. Allen, 260 N.C. 220 , 132 S.E.2d 302, 1963 N.C. LEXIS 646 (1963).

Legal contentions made by defendants in the motion stage of the lawsuit were not statements of material fact made under oath or affirmation, and thus were not actionable under the perjury or the Racketeer Influenced and Corrupt Organizations Act statutes. Jenkins v. Trs. of Sandhills Cmty. College, 2002 U.S. Dist. LEXIS 25252 (M.D.N.C. Dec. 3, 2002).

Evidence Sufficient. —

The direct oath of one witness and proof of declarations of the prisoner in an action for perjury are sufficient to convict. State v. Molier, 12 N.C. 263 , 1827 N.C. LEXIS 45 (1827).

Substantial evidence supported a conviction for perjury under G.S. 14-209 , as the evidence permitted a finding that defendant made a false statement that he had no real estate assets in a sworn indigency affidavit and that he made such statement knowingly to avoid reporting assets that could affect his child support obligations and to increase his likelihood of receiving court-appointed counsel in child support proceedings. State v. Denny, 361 N.C. 662 , 652 S.E.2d 212, 2007 N.C. LEXIS 1095 (2007).

§ 14-209. Punishment for perjury.

If any person knowingly and intentionally makes a false statement under oath or affirmation in any suit, controversy, matter or cause, or in any unsworn declaration deemed sufficient pursuant to G.S. 7A-98 depending in any of the courts of the State; in any deposition or affidavit taken pursuant to law; in any oath or affirmation duly administered of or concerning any matter or thing where such person is lawfully required to be sworn or affirmed, that person is guilty of perjury, and punished as a Class F felon.

History. 1791, c. 338, s. 1, P.R; R.C., c. 34, s. 49; Code, s. 1092; Rev., s. 3615; C.S., s. 4364; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1202; 1994, Ex. Sess., c. 24, s. 14(c); 2019-243, s. 3(c); 2021-47, s. 17(b).

Cross References.

As to swearing falsely to official reports, see G.S. 14-232 .

As to form of bill for perjury, see G.S. 15-145 .

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to making false affidavits in applications for motor vehicle licenses, see G.S. 20-31 .

As to false swearing by creditor in assignment for benefit of creditors, see G.S. 23-9.

As to punishment for making false statement in any financial or other statement required under the provisions of the insurance statutes, see G.S. 58-2-180 .

As to false swearing in an investigation of trusts and combinations in restraint of trade, see G.S. 75-12 .

As to perjury in application for oyster license, see G.S. 113-203 .

As to perjury prosecution for knowingly making an untrue certification under Article 22A of Chapter 163, relating to contributions and expenses in political campaigns, see G.S. 163-278.32 .

Editor’s Note.

Session Laws 2021-47, s. 17(c), made insertion of “or in any unsworn declaration deemed sufficient pursuant to G.S. 7A-98 ” near the middle of this section by Session Laws 2021-47, s. 17(b), effective December 1, 2021, and applicable to offenses committed on or after that date.

Session Laws 2021-47, s. 18, is a severability clause.

Effect of Amendments.

Session Laws 2019-243, s. 3(c), effective November 6, 2019, rewrote the section.

Session Laws 2021-47, s. 17(b), inserted “or in any unsworn declaration deemed sufficient pursuant to G.S. 7A-98 ” near the middle of this section. For effective date and applicability, see editor’s note.

CASE NOTES

Purpose. —

Law of perjury was intended to afford defendant greater protection against the chance of unjust conviction than is ordinarily afforded in prosecuting for crime. State v. Horne, 28 N.C. App. 475, 221 S.E.2d 715, 1976 N.C. App. LEXIS 2733 (1976).

Definition of Perjury. —

Perjury, as defined by common law and enlarged by this section, is a false statement under oath, knowingly, willfully and designedly made, in a proceeding in a court of competent jurisdiction, or concerning a matter wherein the affiant is required by law to be sworn, as to some matter material to the issue or point in question. State v. Smith, 230 N.C. 198 , 52 S.E.2d 348, 1949 N.C. LEXIS 589 (1949); State v. Sailor, 240 N.C. 113 , 81 S.E.2d 191, 1954 N.C. LEXIS 650 (1954); State v. Lucas, 244 N.C. 53 , 92 S.E.2d 401, 1956 N.C. LEXIS 635 (1956); State v. Arthur, 244 N.C. 582 , 94 S.E.2d 646, 1956 N.C. LEXIS 481 (1956); State v. Wilson, 30 N.C. App. 149, 226 S.E.2d 518, 1976 N.C. App. LEXIS 2171 (1976).

This section does not specifically define perjury or state all the elements essential to constitute the crime. It enlarges the scope of the criminality of a false oath, and prescribes punishment. The definition is derived from the common law. State v. Smith, 230 N.C. 198 , 52 S.E.2d 348, 1949 N.C. LEXIS 589 (1949).

Essential Elements. —

Elements essential to constitute perjury are substantially these: A false statement under oath, knowingly, willfully and designedly made, in a proceeding in a court of competent jurisdiction, or concerning a matter wherein the affiant is required by law to be sworn, as to some matter material to the issue or point in question. To constitute materiality essential to sustain a charge of perjury the false testimony must be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact. State v. Chaney, 256 N.C. 255 , 123 S.E.2d 498, 1962 N.C. LEXIS 422 (1962).

The administration of an oath is an essential element of perjury. State v. Glisson, 93 N.C. 506 , 1885 N.C. LEXIS 103 (1885).

As is jurisdiction of the court. Boling v. Luther, 4 N.C. 635 , 1817 N.C. LEXIS 83 (1817); State v. Alexander, 11 N.C. 182 , 1825 N.C. LEXIS 24 (1825); Governor ex rel. Halcombe v. Deaver, 3 N.C. 56 (1798).

Offense Must Be Willful and Corrupt. —

Where the defendant swears to an answer in a civil action before one authorized to administer the oath and the answer contains a false statement of fact, in order to convict him of perjury under the provisions of this section it must be shown that he “willfully and corruptly” committed the offense. State v. Dowd, 201 N.C. 714 , 161 S.E. 205, 1931 N.C. LEXIS 77 (1931).

What Statements Are Not Perjurious. —

False statements made unintentionally or with the honest belief that one is telling the truth are not perjurious. Hill v. Winn-Dixie Charlotte, Inc., 100 N.C. App. 518, 397 S.E.2d 347, 1990 N.C. App. LEXIS 1056 (1990).

False Statement Must Be Material to Issue. —

A false statement under oath must be so connected with the fact directly in issue as to have a legitimate tendency to prove or disprove such fact, in order to be material to the issue and constitute a basis for a prosecution for perjury. State v. Smith, 230 N.C. 198 , 52 S.E.2d 348, 1949 N.C. LEXIS 589 (1949).

In a prosecution for willful failure of defendant to support his illegitimate child, defendant swore he had not had sexual intercourse with prosecutrix and was not the father of her child, and testified as to the number of times he had visited prosecutrix. In a subsequent prosecution for perjury it was made to appear that defendant had visited prosecutrix or had been seen with her more times than he had admitted under oath, but there was no evidence that he was the father of the child. It was held that the proof of false testimony did not relate to matters determinative of the issue in the first prosecution, and the evidence was insufficient to withstand nonsuit in the prosecution for perjury. State v. Smith, 230 N.C. 198 , 52 S.E.2d 348, 1949 N.C. LEXIS 589 (1949).

One of the essential elements of the crime of perjury is that the false statement must be material to an issue or point in question. State v. Chaney, 256 N.C. 255 , 123 S.E.2d 498, 1962 N.C. LEXIS 422 (1962). See also, State v. Cline, 146 N.C. 640 , 61 S.E. 522, 1908 N.C. LEXIS 278 (1908); State v. Lucas, 247 N.C. 208 , 100 S.E.2d 366, 1957 N.C. LEXIS 655 (1957).

Materiality of False Testimony Is a Question of Law. —

In a trial for perjury, the question of the materiality of the alleged false testimony is in its nature a question of law for the court rather than of fact for the jury. State v. Wilson, 30 N.C. App. 149, 226 S.E.2d 518, 1976 N.C. App. LEXIS 2171 (1976).

Solicitation to commit perjury is a felony within the terms of G.S. 14-3(b) and is properly within the jurisdiction of the superior court. State v. Huff, 56 N.C. App. 721, 289 S.E.2d 604, 1982 N.C. App. LEXIS 2473 (1982).

Acquittal No Shield from Charge of Perjury. —

To hold that a person could go into a court of justice and by perjured testimony secure an acquittal and by that acquittal be shielded from a charge of perjury would be a dangerous doctrine. State v. King, 267 N.C. 631 , 148 S.E.2d 647, 1966 N.C. LEXIS 1095 (1966).

A verdict of acquittal is not equivalent to an affirmative finding that all of defendant’s testimony at a former trial was true. State v. King, 267 N.C. 631 , 148 S.E.2d 647, 1966 N.C. LEXIS 1095 (1966).

Former acquittal of malicious injury to personal property under G.S. 14-160 would not support a plea of former jeopardy in a prosecution for perjury committed at the trial, since the crimes are not the same either in fact or in law and the charge of perjury was not based on the assumption that defendant was guilty of the charge of malicious injury, and his acquittal upon the latter charge did not necessarily establish the fact that all material evidence given by him in that case was true. State v. Leonard, 236 N.C. 126 , 72 S.E.2d 1, 1952 N.C. LEXIS 486 (1952), cert. denied, 344 U.S. 916, 73 S. Ct. 339, 97 L. Ed. 706, 1953 U.S. LEXIS 2529 (1953).

Civil Action Will Not Lie. —

Aside from defamation and malicious prosecution, the courts refuse to recognize any injury from false testimony on which a civil action for damages can be maintained, and no action for damages lies for false testimony in a civil suit, whereby the plaintiff fails to recover a judgment, or a judgment is rendered against him. Brewer v. Carolina Coach Co., 253 N.C. 257 , 116 S.E.2d 725, 1960 N.C. LEXIS 495 (1960).

It seems to be the general rule that a civil action in tort cannot be maintained upon the ground that a defendant gave false testimony or procured other persons to give false or perjured testimony. Brewer v. Carolina Coach Co., 253 N.C. 257 , 116 S.E.2d 725, 1960 N.C. LEXIS 495 (1960).

Perjured testimony and the subornation of perjured testimony are criminal offenses, but neither are torts supporting a civil action for damages. Gillikin v. Springle, 254 N.C. 240 , 118 S.E.2d 611, 1961 N.C. LEXIS 401 (1961).

Vacating Judgment Because of Perjured Testimony. —

A judgment cannot be vacated because of perjured testimony unless the party charged with perjury has been indicted and convicted or he has passed beyond the jurisdiction of courts and is not amenable to criminal process. Gillikin v. Springle, 254 N.C. 240 , 118 S.E.2d 611, 1961 N.C. LEXIS 401 (1961).

Irregularity of Warrant Immaterial. —

When perjury is charged to have been committed by a witness in the trial of a criminal proceeding which was begun by warrant, if the court had jurisdiction to investigate the offense charged, it is no defense that the warrant was issued without complaint or affidavit. State v. Peters, 107 N.C. 876 , 12 S.E. 74, 1890 N.C. LEXIS 164 (1890).

Burden of Proof on State. —

The burden is not on the defendant in perjury to show the truth of the matter at issue, but the burden is on the State to show that it is false. State v. Cline, 150 N.C. 854 , 64 S.E. 591, 1909 N.C. LEXIS 171 (1909).

Corroborative Evidence Required. —

To prove the falsity of the oath, the evidence must not necessarily equal in weight the testimony of two witnesses. It is sufficient if there is the testimony of one witness and corroborative circumstances sufficient to turn the scale against the oath which is charged to have been false. State v. Peters, 107 N.C. 876 , 12 S.E. 74, 1890 N.C. LEXIS 164 (1890).

In a prosecution for perjury it is required that the falsity of the oath be established by the testimony of two witnesses, or by one witness and corroborating circumstances sufficient to turn the scales against the defendant’s oath. State v. Sailor, 240 N.C. 113 , 81 S.E.2d 191, 1954 N.C. LEXIS 650 (1954). See also State v. Arthur, 244 N.C. 582 , 94 S.E.2d 646, 1956 N.C. LEXIS 481 (1956); State v. Allen, 260 N.C. 220 , 132 S.E.2d 302, 1963 N.C. LEXIS 646 (1963).

To sustain a conviction for perjury, the falsity of the oath must be directly proved by one witness and there must be corroborating evidence of independent and supplemental character, sufficient to resolve “the dilemma of weighing [one] oath against [another].” State v. Horne, 28 N.C. App. 475, 221 S.E.2d 715, 1976 N.C. App. LEXIS 2733 (1976).

In a prosecution for perjury it is required that the falsity of the oath be established by the testimony of two witnesses, or by one witness and corroborating circumstances sufficient to turn the scales against the defendant’s oath. State v. Wilson, 30 N.C. App. 149, 226 S.E.2d 518, 1976 N.C. App. LEXIS 2171 (1976).

In a prosecution for perjury, North Carolina required that the falsity of the oath be established by the testimony of at least two witnesses, or from the testimony of one witness, along with corroborating circumstances, and if the State relied upon the testimony of only one witness, then the falsity of the statement had to be directly proved by the witness and there had to be independent corroborating evidence of the falsity. State v. Denny, 179 N.C. App. 822, 635 S.E.2d 438, 2006 N.C. App. LEXIS 2158 (2006), aff'd in part, modified, rev'd in part, 361 N.C. 662 , 652 S.E.2d 212, 2007 N.C. LEXIS 1095 (2007).

Circumstantial evidence of perjury alone is not sufficient. State v. Horne, 28 N.C. App. 475, 221 S.E.2d 715, 1976 N.C. App. LEXIS 2733 (1976).

Evidence Must Relate to Statement upon Which Indictment Predicated. —

Testimony of two or more witnesses as to conflicting statements made by defendant while under oath in courts of competent jurisdiction, but without evidence that the statement upon which the bill of indictment was predicated was the false testimony, is insufficient to be submitted to the jury in a prosecution for perjury. State v. Allen, 260 N.C. 220 , 132 S.E.2d 302, 1963 N.C. LEXIS 646 (1963).

Legal contentions made by defendants in the motion stage of the lawsuit were not statements of material fact made under oath or affirmation, and thus were not actionable under the perjury or the Racketeer Influenced and Corrupt Organizations Act statutes. Jenkins v. Trs. of Sandhills Cmty. College, 2002 U.S. Dist. LEXIS 25252 (M.D.N.C. Dec. 3, 2002).

Evidence Sufficient. —

The direct oath of one witness and proof of declarations of the prisoner in an action for perjury are sufficient to convict. State v. Molier, 12 N.C. 263 , 1827 N.C. LEXIS 45 (1827).

Substantial evidence supported a conviction for perjury under G.S. 14-209 , as the evidence permitted a finding that defendant made a false statement that he had no real estate assets in a sworn indigency affidavit and that he made such statement knowingly to avoid reporting assets that could affect his child support obligations and to increase his likelihood of receiving court-appointed counsel in child support proceedings. State v. Denny, 361 N.C. 662 , 652 S.E.2d 212, 2007 N.C. LEXIS 1095 (2007).

§ 14-210. Subornation of perjury.

If any person shall, by any means, procure another person to commit such willful and corrupt perjury as is mentioned in G.S. 14-209 , the person so offending shall be punished as a Class I felon.

History. 1791, c. 338, s. 2, P.R; R.C., c. 34, s. 50; Code, s. 1093; Rev., s. 3616; C.S., s. 4365; 1993, c. 539, s. 1203; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to bill and form of indictment for subornation of perjury, see G.S. 15-146 .

CASE NOTES

Elements of Offense. —

The crime of subornation of perjury consists of two elements, namely, the commission of perjury by the person suborned, and willfully procuring or inducing him to do so by the suborner. The guilt of both the suborned and the suborner must be proved on the trial of the latter. The commission of the crime of perjury is the basic element in the crime of subornation of perjury. State v. Sailor, 240 N.C. 113 , 81 S.E.2d 191, 1954 N.C. LEXIS 650 (1954); State v. Lucas, 244 N.C. 53 , 92 S.E.2d 401, 1956 N.C. LEXIS 635 (1956); State v. McBride, 15 N.C. App. 742, 190 S.E.2d 658, 1972 N.C. App. LEXIS 2019 (1972).

In a prosecution under this section, the State was required to establish, inter alia, that the alleged perjurer made the alleged false statement under oath in a court of competent jurisdiction and that such false statement was material to the matter then in issue. State v. Lucas, 247 N.C. 208 , 100 S.E.2d 366, 1957 N.C. LEXIS 655 (1957).

The commission of the crime of perjury is the basic element in the crime of subornation of perjury. State v. King, 267 N.C. 631 , 148 S.E.2d 647, 1966 N.C. LEXIS 1095 (1966).

The crime of subornation of perjury consists of two elements, the commission of perjury by the person suborned, and willfully procuring or inducing him to do so by the suborner. State v. King, 267 N.C. 631 , 148 S.E.2d 647, 1966 N.C. LEXIS 1095 (1966).

The guilt of both the suborned and the suborner must be proved on the trial of the latter. State v. King, 267 N.C. 631 , 148 S.E.2d 647, 1966 N.C. LEXIS 1095 (1966).

The suborner of perjury and the perjurer stand on an equal footing, especially in respect of turpitude and punishment. State v. Cannon, 227 N.C. 338 , 42 S.E.2d 344, 1947 N.C. LEXIS 423 (1947).

How Falsity of Alleged Perjurer’s Oath Established. —

In a prosecution for subornation of perjury, the falsity of the oath of the alleged perjurer must be established by the testimony of two witnesses, or one witness and corroborating circumstances. State v. Lucas, 247 N.C. 208 , 100 S.E.2d 366, 1957 N.C. LEXIS 655 (1957).

In a prosecution for perjury or subornation of perjury, it is required that the falsity of the oath be established by the testimony of two witnesses, or by one witness and corroborating circumstances, sometimes called adminicular circumstances. State v. King, 267 N.C. 631 , 148 S.E.2d 647, 1966 N.C. LEXIS 1095 (1966); State v. McBride, 15 N.C. App. 742, 190 S.E.2d 658, 1972 N.C. App. LEXIS 2019 (1972).

The requirement of proving by independent circumstances the commission of perjury does not apply to the procurement element of the offense of subornation of perjury. State v. McBride, 15 N.C. App. 742, 190 S.E.2d 658, 1972 N.C. App. LEXIS 2019 (1972).

Solicitation to commit perjury is a felony within the terms of G.S. 14-3(b) and is properly within the jurisdiction of the superior court. State v. Huff, 56 N.C. App. 721, 289 S.E.2d 604, 1982 N.C. App. LEXIS 2473 (1982).

Competency of Corroborative Evidence. —

See State v. Lucas, 247 N.C. 208 , 100 S.E.2d 366, 1957 N.C. LEXIS 655 (1957).

Instructions held erroneous for failure to instruct the jury that the alleged perjury must be established by the testimony of two witnesses, or by one witness and corroborating circumstances and failure to instruct that the State was required to establish, inter alia, that the alleged perjurer testified as charged in the bill of indictment. State v. Lucas, 247 N.C. 208 , 100 S.E.2d 366, 1957 N.C. LEXIS 655 (1957).

§ 14-211. Perjury before legislative committees.

If any person shall willfully and corruptly swear falsely to any fact material to the investigation of any matter before any committee or commission of either house of the General Assembly, he shall be subject to all the pains and penalties of willful and corrupt perjury, and, on conviction in the Superior Court of Wake County, shall be punished as a Class I felon.

History. 1869-70, c. 5, s. 4; Code, s. 2857; Rev., s. 3611; C.S., s. 4366; 1977, c. 344, s. 4; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1204; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-212. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 71(7).

§§ 14-213 through 14-216. [Repealed]

Repealed by Session Laws 1989 (Regular Session, 1990), c. 1054, s. 6.

Cross References.

For provisions relating to insurance fraud, embezzlement and false statements, and punishment for making false statements, see now G.S. 58-2-160 to 58-2-163, 58-2-180, 58-8-1, and 58-24-180(e).

Article 29. Bribery.

§ 14-217. Bribery of officials.

  1. If any person holding office, or who has filed a notice of candidacy for or been nominated for such office, under the laws of this State who, except in payment of his legal salary, fees or perquisites, shall receive, or consent to receive, directly or indirectly, anything of value or personal advantage, or the promise thereof, for performing or omitting to perform any official act, which lay within the scope of his official authority and was connected with the discharge of his official and legal duties, or with the express or implied understanding that his official action, or omission to act, is to be in any degree influenced thereby, he shall be punished as a Class F felon.
  2. Indictments issued under these provisions shall specify:
    1. The thing of value or personal advantage sought to be obtained; and
    2. The specific act or omission sought to be obtained; and
    3. That the act or omission sought to be obtained lay within the scope of the defendant’s official authority and was connected with the discharge of his official and legal duties.
  3. Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 539, s. 1207.
  4. For purposes of this section, a thing of value or personal advantage shall include a campaign contribution made or received under Article 22A of Chapter 163 of the General Statutes.

History. 1868-9, c. 176, s. 2; Code, s. 991; Rev., s. 3568; C.S., s. 4372; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983 (Reg. Sess., 1984), c. 1050, s. 1; 1993, c. 539, ss. 1206, 1207; 1994, Ex. Sess., c. 24, s. 14(c); 2010-169, s. 3(a); 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.

Cross References.

As to bank examiners accepting bribes, see G.S. 14-233 .

As to bribing agents and servants to violate duties owed employers, see G.S. 14-353 .

As to bribery of baseball players, umpires, and officials, see G.S. 14-373 et seq.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Re-recodification; Technical and Conforming Changes.

Session Laws 2017-6, s. 3, provides, in part: “The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled ‘Elections and Ethics Enforcement Act,’ as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate.” The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes substituted “Article 23 of Chapter 163A” for “Article 22A of Chapter 163” in subsection (d).

Session Laws 2018-146, s. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the reference in subsection (d).

Effect of Amendments.

Editor’s Note.

Session Laws 2010-169, s. 3(a), effective December 1, 2010, and applicable to offenses committed on or after that date, in subsection (a), inserted “or who has filed a notice of candidacy for or been nominated for such office” near the beginning; and added subsection (d).

CASE NOTES

Bribery Defined. —

Bribery is the voluntary offering, giving, receiving or soliciting of any sum of money or thing of value with the corrupt intent to influence the recipient’s action as a public officer or official in the discharge of a public legal duty. State v. Greer, 238 N.C. 325 , 77 S.E.2d 917, 1953 N.C. LEXIS 444 (1953).

A person is guilty of bribery if, while holding a public office, he receives something of value for omitting to perform an official act with the express or implied understanding that his official action or inaction was to be influenced by the thing of value. State v. Stanley, 60 N.C. App. 568, 299 S.E.2d 464, 1983 N.C. App. LEXIS 2510 (1983).

The distinction between bribery and extortion seems to be that the former offense consists in offering a present or receiving one, the latter in demanding a fee or present by color of office. State v. Pritchard, 107 N.C. 921 , 12 S.E. 50, 1890 N.C. LEXIS 173 (1890).

Necessity of Proving Corrupt Intent. —

On the trial of an officer for bribery in taking unlawful fees, it is necessary to prove a corrupt intent. State v. Pritchard, 107 N.C. 921 , 12 S.E. 50, 1890 N.C. LEXIS 173 (1890).

And Receipt of Anything of Value Influencing Official Acts. —

This section has an essential element of the offense of bribery of officials the receipt of anything of value with the express or implied understanding that his official acts are to be in any degree influenced thereby. State v. Smith, 237 N.C. 1 , 74 S.E.2d 291, 1953 N.C. LEXIS 482 (1953).

Sufficiency of Indictment. —

An allegation in an indictment against a public officer for unlawfully receiving compensation for the performance of his duty, that defendant “did receive and consent to receive” such compensation, is sufficient and is not defective because of the use of “and” instead of “or” as used in the statute. State v. Wynne, 118 N.C. 1206 , 24 S.E. 216, 1896 N.C. LEXIS 201 (1896).

Evidence Sufficient for Submission to Jury. —

Evidence in this case of one defendant’s guilt of paying or delivering money or merchandise, directly and through agents, to each of defendant policemen to influence them in the performance of their duties, and of the acceptance by each defendant policeman of such payments or delivering with intent and understanding that his actions as a police officer would be influenced thereby, was held sufficient to be submitted to the jury as to each defendant. State v. Smith, 237 N.C. 1 , 74 S.E.2d 291, 1953 N.C. LEXIS 482 (1953).

§ 14-218. Offering bribes.

If any person shall offer a bribe, whether it be accepted or not, he shall be punished as a Class F felon.

History. 1870-1, c. 232; Code, s. 992; Rev., s. 3569; C.S., s. 4373; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1208; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Indictment. —

The general rule that an indictment for a statutory offense is sufficient, if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words, does not apply where the words of the statute, as in this section, do not set forth all the essential elements necessary to constitute the offense sought to be charged. In such a situation the statutory words must be supplemented in the indictment by other allegations which explicitly and accurately set forth every essential element of the offense with such exactitude as to leave no doubt in the minds of the accused and the court as to the specific offense intended to be charged. State v. Greer, 238 N.C. 325 , 77 S.E.2d 917, 1953 N.C. LEXIS 444 (1953).

Evidence Held Sufficient. —

The offer of money to an Alcohol Beverage Control (ABC) enforcement officer with the request that the officer arrest or stop a person for driving while impaired is a bribe within the meaning of this section. State v. Hair, 114 N.C. App. 464, 442 S.E.2d 163, 1994 N.C. App. LEXIS 402 (1994).

State’s evidence was sufficient to allow the jury to find that co-defendant and defendant together, offered to share a portion of defendant’s claimed $ 400,000 settlement with the officer if the officer would ignore the drugs found on co-defendant’s person, and defendant’s motion to dismiss at the close of all the evidence was properly denied. State v. Weaver, 160 N.C. App. 61, 584 S.E.2d 345, 2003 N.C. App. LEXIS 1671 (2003).

A corrupt intent means a wrongful design to acquire some pecuniary profit or other advantage. State v. Hair, 114 N.C. App. 464, 442 S.E.2d 163, 1994 N.C. App. LEXIS 402 (1994).

An indictment for offering a bribe or bribery must allege by definite and particular statement, and not as a mere conclusion, that the acts were done to influence the performance of some public legal duty, and it must further appear, at least as a reasonable inference, that defendant had knowledge of the official character of him to whom the bribe was offered. State v. Greer, 238 N.C. 325 , 77 S.E.2d 917, 1953 N.C. LEXIS 444 (1953).

Where an indictment for bribing or offering a bribe to a State highway patrolman fails to allege the official act the accused intended to influence, defendant’s motion to quash should be allowed. State v. Greer, 238 N.C. 325 , 77 S.E.2d 917, 1953 N.C. LEXIS 444 (1953).

Same — Not Necessary to Charge That Bribed Juror Received Fee. —

In a prosecution under this section it is not necessary that the indictment should charge that the juror received any fee or other compensation, the statutes making a distinction between bribery and an offer to bribe. State v. Noland, 204 N.C. 329 , 168 S.E. 412, 1933 N.C. LEXIS 394 (1933).

Competency of Evidence. —

Evidence is competent which shows the quo animo, intent, design, guilty knowledge or scienter with which the defendant charged under this section gave money or other things of value to an official. State v. Smith, 237 N.C. 1 , 74 S.E.2d 291, 1953 N.C. LEXIS 482 (1953).

Evidentiary issues — co-defendant’s statements to the office that defendant; who was expecting a large legal settlement, would pay a large sum for the officer to “forget” the drug offense, to which defendant replied in the affirmative, was not inadmissible hearsay, because the statements were “operative facts,” or “verbal acts” excluded from the hearsay rule, and alternatively, the statements were adoptive admissions. State v. Weaver, 160 N.C. App. 61, 584 S.E.2d 345, 2003 N.C. App. LEXIS 1671 (2003).

§ 14-219. [Repealed]

Repealed by Session Laws 1983, c. 780, s. 1.

Cross References.

As to bribery under the Legislative Ethics Act, see G.S. 120-86 .

§ 14-220. Bribery of jurors.

If any juror, either directly or indirectly, shall take anything from the plaintiff or defendant in a civil suit, or from any defendant in a State prosecution, or from any other person, to give his verdict, every such juror, and the person who shall give such juror any fee or reward to influence his verdict, or induce or procure him to make any gain or profit by his verdict, shall be punished as a Class F felon.

History. 5 Edw. III, c. 10; 34 Edw. III, c. 8; 38 Edw. III, c. 12; R.C., c. 34, s. 34; Code, s. 990; Rev., s. 3697; C.S., s. 4375; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1209; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Attempted Bribery of Juror is Class G Felony. —

Because North Carolina’s statutes do not provide a specific classification for attempted bribery of a juror, an attempt to commit the felony of bribery of a juror is punishable under the next lower classification as the offense which the offender attempted to commit pursuant to G.S. 14-2.5 . Thus, attempted bribery of a juror should be classified as a Class G felony pursuant to G.S. 14-220 (classifying bribery of a juror as a Class F felony). State v. Ross, 221 N.C. App. 185, 727 S.E.2d 370, 2012 N.C. App. LEXIS 719 (2012), writ denied, 366 N.C. 570 , 738 S.E.2d 369, 2013 N.C. LEXIS 231 (2013).

Article 30. Obstructing Justice.

§ 14-221. Breaking or entering jails with intent to injure prisoners.

If any person shall conspire to break or enter any jail or other place of confinement of prisoners charged with crime or under sentence, for the purpose of killing or otherwise injuring any prisoner confined therein; or if any person shall engage in breaking or entering any such jail or other place of confinement of such prisoners with intent to kill or injure any prisoner, he shall be punished as a Class F felon.

History. 1893, c. 461, s. 1; Rev., s. 3698; C.S., s. 4376; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1210; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to investigation of lynchings, see G.S. 114-15 .

As to sheriff’s duty to protect prisoner, see G.S. 162-23 .

Legal Periodicals.

For note, “A New Route to Medical Malpractice in North Carolina?,” see 31 N.C. Cent. L. Rev. 198 (2009).

CASE NOTES

Conviction of Attempt. —

On an indictment under this section as construed with former G.S. 15-128 and G.S. 15-170 , the defendant may be found guilty of an attempt. State v. Rumple, 178 N.C. 717 , 100 S.E. 622, 1919 N.C. LEXIS 545 (1919).

Specific Intent Is Element of Offense. —

All of the codified obstruction of justice offenses found at G.S. 14-221 through G.S. 14-227 are specific intent crimes, requiring that the State present evidence that the defendant acted willfully or with purpose in committing the offense. State v. Eastman, 113 N.C. App. 347, 438 S.E.2d 460, 1994 N.C. App. LEXIS 18 (1994).

Indictment Need Not Charge Accomplices. —

It was error to quash a bill of indictment under this section which charged the defendant with conspiring “with others” to commit the crime of lynching, because it did not name the others or charge that they were unknown. State v. Lewis, 142 N.C. 626 , 55 S.E. 600, 1906 N.C. LEXIS 300 (1906).

Indictment in Adjoining County. —

In an indictment for lynching it was error to quash the bill on the ground that it appeared on the face of the bill that the offense charged was not committed in the county in which the bill was found, but in an adjoining county. State v. Lewis, 142 N.C. 626 , 55 S.E. 600, 1906 N.C. LEXIS 300 (1906).

§ 14-221.1. Altering, destroying, or stealing evidence of criminal conduct.

Any person who breaks or enters any building, structure, compartment, vehicle, file, cabinet, drawer, or any other enclosure wherein evidence relevant to any criminal offense or court proceeding is kept or stored with the purpose of altering, destroying or stealing such evidence; or any person who alters, destroys, or steals any evidence relevant to any criminal offense or court proceeding shall be punished as a Class I felon.

As used in this section, the word evidence shall mean any article or document in the possession of a law-enforcement officer or officer of the General Court of Justice being retained for the purpose of being introduced in evidence or having been introduced in evidence or being preserved as evidence.

History. 1975, c. 806, ss. 1, 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Definition of Evidence. —

Trial court erred in denying the defendant’s motion to dismiss the charge of altering, stealing, or destroying criminal evidence because the money in question obtained from a controlled sale of illegal drugs was not evidence as defined by statute where, while the argument could be made that the defendant was an agent of law-enforcement officers, he was neither a law-enforcement officer or officer of the General Court of Justice. State v. Dove, 248 N.C. App. 81, 788 S.E.2d 198, 2016 N.C. App. LEXIS 657 (2016).

Illegal to Destroy Any Relevant Evidence. —

This section makes it illegal to destroy evidence no matter what that evidence is (a green vegetable material or actually marijuana) so long as it is “evidence relevant to any criminal offense.” State v. Tate, 300 N.C. 180 , 265 S.E.2d 223, 1980 N.C. LEXIS 1046 (1980).

Conviction of defendant was not obtained in violation of this section where unidentifiable fingerprints lifted from the scene of the crime were thrown away by the State as irrelevant. State v. Pennell, 54 N.C. App. 252, 283 S.E.2d 397, 1981 N.C. App. LEXIS 2831 (1981).

§ 14-221.2. Altering court documents or entering unauthorized judgments.

Any person who without lawful authority intentionally enters a judgment upon or materially alters or changes any criminal or civil process, criminal or civil pleading, or other official case record is guilty of a Class H felony.

History. 1979, c. 526; 1979, 2nd Sess., c. 1316, s. 14; 1981, c. 63, s. 1; c. 179, s. 14.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

CASE NOTES

Sufficiency of the Evidence. —

Trial court erred in denying defendant’s motion to dismiss the charge of altering court documents because the evidence did not show that defendant materially altered or changed any process, pleading, or other official case record. Instead, the evidence suggested that defendant forged the signatures of defendant’s spouse and a notary public on a document before the document was filed in the clerk of court’s office when defendant filed for a divorce from defendant’s spouse. State v. Martinez, 230 N.C. App. 361, 749 S.E.2d 512, 2013 N.C. App. LEXIS 1141 (2013).

Because the challenge in a case concerned the sufficiency of the evidence, the appellate court, after careful consideration, invoked its authority under N.C. R. App. P. 2 to review defendant’s argument when defendant contended that the filing of a forged document did not violate G.S. 14-221.2 . State v. Martinez, 230 N.C. App. 361, 749 S.E.2d 512, 2013 N.C. App. LEXIS 1141 (2013).

§ 14-222. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(12).

§ 14-223. Resisting officers.

  1. If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge an official duty, the person is guilty of a Class 2 misdemeanor.
  2. If any person shall willfully and unlawfully resist, delay, or obstruct a public officer in discharging or attempting to discharge an official duty, and the resistance, delay, or obstruction is the proximate cause of a public officer’s serious injury, the person is guilty of a Class I felony.
  3. If any person shall willfully and unlawfully resist, delay, or obstruct a public officer in discharging or attempting to discharge an official duty, and the resistance, delay, or obstruction is the proximate cause of a public officer’s serious bodily injury, the person is guilty of a Class F felony.
  4. “Serious bodily injury” is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.

History. 1889, c. 51, s. 1; Rev., s. 3700; C.S., s. 4378; 1969, c. 1224, s. 1; 1993, c. 539, s. 136; 1994, Ex. Sess., c. 24, s. 14(c); 2021-138, s. 19(a).

Editor’s Note.

Session Laws 2021-138, s. 19(b), (c), effective September 2, 2021, provides: “(b) In order to raise public awareness about resisting, delaying, and obstructing law enforcement officers and encourage North Carolina residents to interact with law enforcement officers safely, the Department of Public Safety shall create a targeted social media campaign and television commercials that address the concerns of not resisting arrest and raising public awareness about resisting, delaying, and obstructing law enforcement officers. DPS shall also make available on its internet website a public service announcement containing legally accurate information regarding the public’s responsibilities during traffic stops and other interactions with law enforcement.

“(c) The Department of Public Safety shall provide to the Division of Motor Vehicles an internet link to the public service announcement authorized by subsection (b) of this section, which the Division of Motor Vehicles shall make available on its internet website. In addition, the Division of Motor Vehicles shall broadcast the public service announcement authorized by subsection (b) of this section on monitors at drivers license office locations across the State.”

Session Laws 2021-138, s. 19(d), made the amendments to this section by Session Laws 2021-138, s. 19(a), effective December 1, 2021, and applies to offenses committed on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Effect of Amendments.

Session Laws 2021-138, s. 19(a), designated subsection (a); substituted “an official duty, the person is” for “a duty of his office, he shall be” in subsection (a); and added subsections (b) through (d). For effective date and applicability, see editor’s note.

Legal Periodicals.

For note on interfering with police officer as obstructing justice, see 36 N.C.L. Rev. 489 (1958).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

CASE NOTES

Analysis

I.General Consideration

This section is not unconstitutionally vague. State v. Singletary, 73 N.C. App. 612, 327 S.E.2d 11, 1985 N.C. App. LEXIS 3317 (1985).

Section Provides Fair Notice of Proscribed Conduct. —

This section gives a person of ordinary intelligence fair notice of the behavior it proscribes. The legislature has drafted with reasonable precision a comprehensible rule of conduct. State v. Singletary, 73 N.C. App. 612, 327 S.E.2d 11, 1985 N.C. App. LEXIS 3317 (1985).

This section is not so generally phrased that it proscribes innocent but orderly communication with police officers. State v. Singletary, 73 N.C. App. 612, 327 S.E.2d 11, 1985 N.C. App. LEXIS 3317 (1985).

Communications simply intended to assert rights, seek clarification or obtain information in a peaceful way are not chilled by this section. Burton v. City of Durham, 118 N.C. App. 676, 457 S.E.2d 329, 1995 N.C. App. LEXIS 375 , cert. denied, 341 N.C. 419 , 461 S.E.2d 756, 1995 N.C. LEXIS 493 (1995).

Term “unlawfully” in this section is conclusory but does not make the statute as a whole unconstitutionally vague. State v. Singletary, 73 N.C. App. 612, 327 S.E.2d 11, 1985 N.C. App. LEXIS 3317 (1985).

Purpose of Section. —

The purpose of this section is to enforce orderly conduct in the important mission of preserving the peace, carrying out the judgments and orders of the court, and upholding the dignity of the law, and the provisions of this section provide for safeguards that are essential to the welfare of the public. State v. Leigh, 278 N.C. 243 , 179 S.E.2d 708, 1971 N.C. LEXIS 963 (1971).

Construction with Federal Law. —

Defendants were entitled to summary judgment as to plaintiff’s 42 U.S.C. § 1983 claim for unlawful arrest, where officers had probable cause to believe that plaintiff had committed, at least, three offenses; that is, discharging a firearm in violation of a county ordinance, resisting, obstructing, and delaying an officer in carrying out his duties, and threatening bodily harm to an officer. Bell v. Dawson, 144 F. Supp. 2d 454, 2001 U.S. Dist. LEXIS 5629 (W.D.N.C. 2001).

Resisting Officer and Assaulting Officer Are Separate Offenses. —

The charge of resisting an office and the charge of assaulting a public officer while discharging or attempting to discharge a duty of his officer are separate and distinct offenses and the trial judge did not err in failing to “merge” them. State v. Kirby, 15 N.C. App. 480, 190 S.E.2d 320, 1972 N.C. App. LEXIS 1946 (1972).

There is a distinction between the offenses of resisting an officer under this section and assault on an officer under former G.S. 14-33(b)(4). In the offense of resisting an officer, the resisting of the public officer in the performance of some duty is the primary conduct proscribed by that statute and the particular duty that the officer is performing while being resisted is of paramount importance and is very material to the preparation of the defendant’s defense, while in the offense of assaulting a public officer in the performance of some duty, the assault on the officer is the primary conduct proscribed by the statute and the particular duty that the officer is performing while being assaulted is of secondary importance. State v. Waller, 37 N.C. App. 133, 245 S.E.2d 808, 1978 N.C. App. LEXIS 2669 (1978).

Resisting Arrest Is Not Necessarily a Lesser Included Offense of Assaulting an Officer. —

The offense of unlawfully resisting, delaying or obstructing a public officer in the discharge of a duty of his office is not a lesser degree of the offense of assaulting a law-enforcement officer while he is discharging or attempting to discharge a duty of his office. This does not eliminate the possibility that the facts in a given case might constitute a violation of both statutes. In such a case the defendant could not be punished twice for the same conduct. State v. Hardy, 298 N.C. 191 , 257 S.E.2d 426, 1979 N.C. LEXIS 1372 (1979).

But Conviction of Both Resisting and Assaulting on Same Evidence Violates Double Jeopardy. —

Where the record revealed that defendant was convicted of both resisting arrest and assault on an officer in the performance of his duties on the same evidence, the defendant was twice convicted and sentenced for the same criminal offense. The fact that defendant was given concurrent sentences did not make the duplication of punishment and sentences any less a violation of defendant’s constitutional right not to be put in jeopardy twice for the same offense. State v. Raynor, 33 N.C. App. 698, 236 S.E.2d 307, 1977 N.C. App. LEXIS 2327 (1977).

Where a defendant had been tried under two warrants, one for violating this section and the other for violating former G.S. 14-33(c)(4), and where each warrant included all the elements of the offense charged in the other, and each specified only acts of violence which defendant directed at the officer’s person while he was attempting to hold defendant in custody, the defendant was twice convicted and sentenced for the same criminal offense, and the constitutional guaranty against double jeopardy protected him from multiple punishments for the same offense. State v. Summrell, 282 N.C. 157 , 192 S.E.2d 569, 1972 N.C. LEXIS 924 (1972).

Thus State Must Elect Between Duplicate Charges. —

In a prosecution for resisting arrest and assaulting a police officer, where the warrants charge the same conduct and the evidence clearly shows that no line of demarcation between defendant’s resistance of arrest and his assaults upon the officer could be drawn, the assaults being the means by which the resistance was accomplished, the State must elect between the duplicate charges. State v. Hardy, 33 N.C. App. 722, 236 S.E.2d 709, 1977 N.C. App. LEXIS 2332 (1977), aff'd in part and rev'd in part, 298 N.C. 191 , 257 S.E.2d 426, 1979 N.C. LEXIS 1372 (1979).

Trial court did not violate the Double Jeopardy Clause by admitting evidence of events occurring after defendant left a patrol car in defendant’s subsequent trial for obstruction and delay of a public officer under G.S. 14-223 , even though defendant had been acquitted of an assault upon a government officer charge under G.S. 14-33(c)(4), as the acquittal could have resulted from findings that defendant did not attempt to do immediate physical injury to the officer, did not use sufficient force to put a reasonable person in fear of immediate bodily harm, or was defending herself from the excessive use of force; as there was more than one possible explanation from for the acquittal, defendant failed to meet her burden to establish collateral estoppel. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824, 2004 N.C. App. LEXIS 742 (2004).

Superior court erred in dismissing a charge against defendant of resisting, delaying or obstructing a public officer (RDO) pursuant to G.S. 14-223 because defendant was not placed in double jeopardy where the evidence required to convict defendant on the RDO charge was not the same as for the assault on a government official charge. State v. Newman, 186 N.C. App. 382, 651 S.E.2d 584, 2007 N.C. App. LEXIS 2201 (2007).

Lack of Knowledge of Who was Grabbing Defendant. —

Defendant juvenile’s adjudication of resisting a public officer was vacated; defendant was suddenly grabbed by the officer without any way of knowing who was grabbing him, and once defendant knew it was an officer, defendant did not fight with the officer; defendant’s yelling, “No” and cursing when he was grabbed did not violate the statute, as his statements were made before he knew who was grabbing him. In re T.T.E., 260 N.C. App. 378, 818 S.E.2d 324, 2018 N.C. App. LEXIS 683 (2018), rev'd in part, 372 N.C. 413 , 831 S.E.2d 293, 2019 N.C. LEXIS 785 (2019).

Application to Campus Police Officer. —

Because campus police officers, like municipal police officers, act pursuant to authority granted by the General Assembly under the Campus Police Act, and their duties involve the exercise of some portion of the sovereign power, the campus police officers were entitled to public official immunity for their acts in furtherance of their official duties so long as those acts were not corrupt, malicious, or outside of and beyond the scope of the campus police officers’ duties. Mills v. Duke Univ., 234 N.C. App. 380, 759 S.E.2d 341, 2014 N.C. App. LEXIS 601 (2014).

Persons Aiding and Abetting. —

See State v. Morris, 10 N.C. 388 , 1824 N.C. LEXIS 91 (1824), limited, State v. Boyle, 104 N.C. 800 , 10 S.E. 1023, 10 S.E. 696, 1889 N.C. LEXIS 281 (1889).

Evidence Sufficient. —

Evidence that defendant approached the officers from behind and stepped between officers and gang members the officers were attempting to deal with, an officer warned defendant to step aside, and defendant refused to follow the officer’s instruction was sufficient to defeat defendant’s motion to dismiss the charge for resisting, obstructing, or delaying a police officer. State v. Cornell, 222 N.C. App. 184, 729 S.E.2d 703, 2012 N.C. App. LEXIS 950 (2012).

II.Nature and Evidence of Offense

“Resist, Delay or Obstruct.” —

The words “delay” and “obstruct” appear to be synonymous as used in this section. And perhaps the word “resist” would infer more direct and forceful action. State v. Leigh, 278 N.C. 243 , 179 S.E.2d 708, 1971 N.C. LEXIS 963 (1971).

This section will apply to cases falling within any one of the descriptive words, since the words describing the act are joined by the disjunctive “or”. State v. Leigh, 278 N.C. 243 , 179 S.E.2d 708, 1971 N.C. LEXIS 963 (1971).

In order to convict a person of a violation of this section, the State does not have to show that a defendant resisted, delayed and obstructed an officer. It is sufficient if a defendant unlawfully and willfully resists, or delays, or obstructs an officer. State v. Leigh, 10 N.C. App. 202, 178 S.E.2d 85, 1970 N.C. App. LEXIS 1237 (1970).

“Public Officer” — An alcoholic beverage control officer is a “public officer” within the meaning of this section. State v. Taft, 256 N.C. 441 , 124 S.E.2d 169, 1962 N.C. LEXIS 473 (1962).

Same — Collector of Back Tax. —

See State v. Alston, 127 N.C. 518 , 37 S.E. 137, 1900 N.C. LEXIS 123 (1900).

Same — A State highway patrolman, when acting as such, is a public officer within the purview of this section. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153, 1971 N.C. App. LEXIS 1648 (1971).

“Discharging a Duty of His Office”. —

A deputy sheriff is discharging or attempting to discharge a duty of his office when he begins an investigation of a crime reported to him by eyewitnesses, under circumstances which appear to threaten a further breach of the peace. State v. Leigh, 278 N.C. 243 , 179 S.E.2d 708, 1971 N.C. LEXIS 963 (1971).

A police officer attempting to preserve the peace by placing the defendant under arrest for disorderly conduct was performing a duty of his office when the defendant resisted arrest. State v. Cunningham, 34 N.C. App. 72, 237 S.E.2d 334, 1977 N.C. App. LEXIS 1582 (1977).

Trial court erred by denying a juvenile’s motion to dismiss the charge of resisting a public officer, G.S. 14-223 , at an adjudication hearing because an anonymous tip alone, without more evidence, did not establish reasonable suspicion to justify a police officer’s frisk of the juvenile, and because the State did not present sufficient, articulable facts to warrant the stop, the juvenile’s subsequent detention and arrest were not justified, thus, there was sufficient evidence the officer acted lawfully in discharging a duty of his office. In re A.J. M.-B., 212 N.C. App. 586, 713 S.E.2d 104, 2011 N.C. App. LEXIS 1167 (2011).

“Arrest”. —

The term “arrest” has a technical meaning, applicable in legal proceedings. It implies that a person is thereby restrained of his liberty by some officer or agent of the law, armed with lawful process, authorizing and requiring the arrest to be made. It is intended to serve, and does serve, the end of bringing the person arrested personally within the custody and control of the law, for the purpose specified in, or contemplated by, the process. State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224, 1971 N.C. App. LEXIS 1519 (1971).

In criminal procedure an arrest consists in the taking into custody of another person under real or assumed authority for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offense. State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224, 1971 N.C. App. LEXIS 1519 (1971).

An “arrest” does not necessarily terminate the instant a person is taken into custody; arrest also includes “bringing the person personally within the custody and control of the law.” State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224, 1971 N.C. App. LEXIS 1519 (1971).

The defendant’s contention that at the time he was in the magistrate’s office his arrest had been consummated, and that the acts alleged to have occurred between the magistrate’s office and the jail were not in connection with his arrest, and that, therefore, he was not guilty of resisting arrest, was rejected. State v. Leak, 11 N.C. App. 344, 181 S.E.2d 224, 1971 N.C. App. LEXIS 1519 (1971).

Resisting Officer in Performance of Some Duty Is Primary Conduct Proscribed. —

In the offense of resisting an officer, the resisting of the public officer in the performance of some duty is the primary conduct proscribed by this section, and the particular duty that the officer is performing while being resisted is of paramount importance and is very material to the preparation of the defense. State v. Kirby, 15 N.C. App. 480, 190 S.E.2d 320, 1972 N.C. App. LEXIS 1946 (1972).

Conduct Not Limited to Resisting Arrest. —

The conduct proscribed under this section is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in the discharge of his duties. State v. Lynch, 94 N.C. App. 330, 380 S.E.2d 397, 1989 N.C. App. LEXIS 469 (1989).

There does not have to be an assault on or actual physical interference with the officer in order to constitute a crime under this section. Neither does the conduct of a defendant have to be so effective that it permanently prevents the officer from making his investigation. State v. Leigh, 10 N.C. App. 202, 178 S.E.2d 85, 1970 N.C. App. LEXIS 1237 (1970).

No actual assault or force or violence is necessary to complete the offense described by this section. State v. Kirby, 15 N.C. App. 480, 190 S.E.2d 320, 1972 N.C. App. LEXIS 1946 (1972).

This section prohibits only willful resistance, delay or obstruction of a police officer in attempting to discharge or in discharging a duty of his office. State v. Singletary, 73 N.C. App. 612, 327 S.E.2d 11, 1985 N.C. App. LEXIS 3317 (1985).

Not Mere Disagreement or Criticism. —

An individual who disagrees with or criticizes a police officer, but who does not intend to resist, obstruct or delay the officer’s performance of his duty cannot be convicted under this section. State v. Singletary, 73 N.C. App. 612, 327 S.E.2d 11, 1985 N.C. App. LEXIS 3317 (1985).

Conduct Not Constituting Obstruction of Officer. —

Merely remonstrating with an officer in behalf of another, or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying an officer in the performance of his duties. State v. Leigh, 278 N.C. 243 , 179 S.E.2d 708 (1971); State v. Allen, 14 N.C. App. 485, 188 S.E.2d 568 (1972). Citizen may advise another of his constitutional rights in an orderly and peaceable manner while the officer is performing his duty without necessarily obstructing or delaying the officer in the performance of his duty. State v. Leigh, 278 N.C. 243 , 179 S.E.2d 708, 1971 N.C. LEXIS 963 (1971).

Vague, intemperate language used without apparent purpose is not sufficient to constitute the offense of resisting, delaying and obstructing an officer. State v. Allen, 14 N.C. App. 485, 188 S.E.2d 568, 1972 N.C. App. LEXIS 2160 (1972).

Where defendant was merely arguing with the officer and protesting the confiscation of his property, he had committed no offense and the officer had no authority to arrest him. State v. Allen, 14 N.C. App. 485, 188 S.E.2d 568, 1972 N.C. App. LEXIS 2160 (1972).

Preventing Road Overseer Cutting Ditch. —

See State v. New, 130 N.C. 731 , 41 S.E. 1033, 1902 N.C. LEXIS 151 (1902).

Duty to Submit Peaceably to Lawful Arrest. —

When a person has been lawfully arrested by a lawful officer and understands that he is under arrest, it is his duty to submit peaceably to the arrest. State v. Summrell, 13 N.C. App. 1, 185 S.E.2d 241, 1971 N.C. App. LEXIS 1149 (1971), modified, 282 N.C. 157 , 192 S.E.2d 569, 1972 N.C. LEXIS 924 (1972).

Where State’s evidence showed that defendant continued to struggle after the officers apprehended him, evidence was sufficient to sustain defendant’s conviction for resisting a public officer. State v. Lynch, 94 N.C. App. 330, 380 S.E.2d 397, 1989 N.C. App. LEXIS 469 (1989).

A person resisting an illegal arrest is not resisting an officer within the discharge of his official duties. Roberts v. Swain, 126 N.C. App. 712, 487 S.E.2d 760, 1997 N.C. App. LEXIS 635 , cert. denied, 347 N.C. 270 , 493 S.E.2d 746, 1997 N.C. LEXIS 676 (1997).

Right to Resist Unlawful Arrest. —

The offense of resisting arrest presupposes a lawful arrest both at common law and under this section. And every person has the right to resist an unlawful arrest by the use of force. But such right to use force is not unlimited, and only such force may be used as reasonably appears to be necessary to prevent unlawful restraint of liberty. State v. Mobley, 240 N.C. 476 , 83 S.E.2d 100, 1954 N.C. LEXIS 467 (1954).

When an officer attempts to make an arrest without a warrant and in so doing exceeds his lawful authority, he may be resisted as in self-defense, and in such case the person resisting cannot be convicted under this section of the offense of resisting an officer engaged in the discharge of his duties. State v. Wright, 1 N.C. App. 479, 162 S.E.2d 56, 1968 N.C. App. LEXIS 1112 , aff'd, 274 N.C. 380 , 163 S.E.2d 897, 1968 N.C. LEXIS 792 (1968).

Every person has the right to resist an unlawful arrest and he may use such force as reasonably appears to be necessary to prevent the unlawful arrest. State v. Allen, 14 N.C. App. 485, 188 S.E.2d 568, 1972 N.C. App. LEXIS 2160 (1972).

The offense of resisting arrest, both at common law and under this section, presupposes a lawful arrest. Every person has the right to resist an unlawful arrest. In such case the person attempting the arrest stands in the position of a wrongdoer and may be resisted by the use of force, as in self-defense. State v. Jefferies, 17 N.C. App. 195, 193 S.E.2d 388, 1972 N.C. App. LEXIS 1622 (1972), cert. denied, 282 N.C. 673 , 194 S.E.2d 153, 1973 N.C. LEXIS 1144 (1973).

Every person has the right to resist an unlawful arrest. Roberts v. Swain, 126 N.C. App. 712, 487 S.E.2d 760, 1997 N.C. App. LEXIS 635 , cert. denied, 347 N.C. 270 , 493 S.E.2d 746, 1997 N.C. LEXIS 676 (1997).

Flight from unlawful arrest may not be used to establish probable cause. A person is entitled to resist an illegal, but not a legal, arrest. Not only may a person resist, but his subsequent flight from an unlawful arrest can not be considered as a circumstance to establish probable cause for an arrest. State v. Swift, 105 N.C. App. 550, 414 S.E.2d 65, 1992 N.C. App. LEXIS 253 (1992).

Flight From Consensual Encounter Insufficient to Support Conviction. —

Defendant’s flight from a consensual encounter could not be used as evidence defendant was resisting, delaying, or obstructing an officer in the performance of his duties and thus, the trial court did not err in dismissing the resisting public officer charge. State v. Joe, 213 N.C. App. 148, 711 S.E.2d 842, 2011 N.C. App. LEXIS 1396 (2011), vacated in part, 365 N.C. 538 , 723 S.E.2d 339, 2012 N.C. LEXIS 268 (2012).

Officer Must Have Authority and Notify the Party Thereof. —

If the officer has no authority to make the arrest, or, having the authority, is not known to be an officer and does not in some way notify the party that he is an officer and has authority, the party arrested may lawfully resist the arrest as if it were made by a private person. State v. Kirby, 24 N.C. 201 , 1842 N.C. LEXIS 1 (1842); State v. Bryant, 65 N.C. 327 , 1871 N.C. LEXIS 97 (1871); State v. Belk, 76 N.C. 10 , 1877 N.C. LEXIS 1 50 (1877).

Process Must Be Legal. —

A person is not liable for resisting an unlawful arrest, as where the warrant lacked a seal and the officer did not state what he arrested him for. State v. Curtis, 2 N.C. 471 , 1797 N.C. LEXIS 20 (1797).

Where police officers attempt an arrest under an invalid arrest warrant, the person sought to be arrested has a legal right to resist, and in such instances, in prosecutions for resisting arrest, the defendant’s motion for judgment as of nonsuit should be granted. State v. Carroll, 21 N.C. App. 530, 204 S.E.2d 908, 1974 N.C. App. LEXIS 1861 , cert. denied, 285 N.C. 759 , 209 S.E.2d 283, 1974 N.C. LEXIS 1152 (1974).

But Defective Process Which Is Sufficient on Its Face May Not Be Resisted. —

A person may not resist an arrest by an officer acting under authority of a court process which is sufficient on its face to show its purpose, even though the process may be defective or irregular in some respect. State v. Wright, 1 N.C. App. 479, 162 S.E.2d 56, 1968 N.C. App. LEXIS 1112 , aff'd, 274 N.C. 380 , 163 S.E.2d 897, 1968 N.C. LEXIS 792 (1968).

Right to Resist Illegal Entry. —

Decisions of the Supreme Court recognize the right to resist illegal conduct of an officer and officers have no duty to make an illegal entry into a person’s home. Hence, one who resists an illegal entry is not resisting an officer in the discharge of the duties of his office. These views are in accordance with the ancient rules of the common law and are predicated on the constitutional principle that a person’s home is his castle. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).

Refusal to Provide Information About Identity Can Constitute Violation. —

Failure to provide information about one’s identity during a lawful stop can constitute resistance, delay, or obstruction within the meaning of this statute. State v. Friend, 237 N.C. App. 490, 768 S.E.2d 146, 2014 N.C. App. LEXIS 1208 (2014).

Mere verbal refusal to provide social security number was insufficient to establish probable cause for the charge of resisting arrest. Roberts v. Swain, 126 N.C. App. 712, 487 S.E.2d 760, 1997 N.C. App. LEXIS 635 , cert. denied, 347 N.C. 270 , 493 S.E.2d 746, 1997 N.C. LEXIS 676 (1997).

Defendant may not rely on self-defense where State’s evidence is that defendant provoked the incident after his lawful arrest, and the officer used only the amount of force necessary to bring the situation under control. State v. Wells, 59 N.C. App. 682, 298 S.E.2d 73, 1982 N.C. App. LEXIS 3189 (1982).

Presumption of Validity of Arrest. —

Failure of State to introduce evidence tending to prove validity of warrant of arrest, in a prosecution for resisting arrest, does not justify nonsuit when defendant does not challenge the validity of the warrant, since, in the absence of a showing to the contrary, it will be presumed that the warrant and order of arrest were legally adequate. State v. Honeycutt, 237 N.C. 595 , 75 S.E.2d 525, 1953 N.C. LEXIS 680 (1953).

Defendant was entitled to dismissal of the charge of resisting a public officer because a reasonable person would have felt free to ignore the detective’s presence to go about their business since the detective made no show of force or otherwise communicated that cooperation was required; defendant’s flight from the consensual encounter could not be used as evidence that defendant was resisting, delaying, or obstructing the detective. State v. Sinclair, 191 N.C. App. 485, 663 S.E.2d 866, 2008 N.C. App. LEXIS 1473 (2008).

Level 3 Juvenile Disposition Improper. —

Order entering a level 3 disposition and commitment order based on a juvenile’s violation of probation was error because it was undisputed that underlying offense was classified as a minor offense under G.S. 7B-2508 , and the plain language of G.S. 7B-2510(f) specifically prohibited the entry of a new disposition at level 3; G.S. 7B-2508 (g) did not require a different result. In re S.B., 207 N.C. App. 741, 701 S.E.2d 359, 2010 N.C. App. LEXIS 2021 (2010).

Arrest Was Lawful. —

Because an officer probable cause that defendant had committed indecent exposure and that defendant was fleeing the scene, the officer’s warrantless arrest was lawful. State v. Smith, 225 N.C. App. 471, 736 S.E.2d 847, 2013 N.C. App. LEXIS 138 (2013).

Resistance Held Lawful. —

Defendant was not liable for assault and battery for resisting an entry into her house by an officer armed with a warrant which had once been served and returned, though defendant had entered into a recognizance and failed to appear. State v. Queen, 66 N.C. 615 , 1872 N.C. LEXIS 138 (1872).

The defendant was not guilty of resisting arrest by closing his door to officers who were arresting him on a civil warrant which was not in their possession, and they entered his home illegally to arrest him. State v. Hewson, 88 N.C. App. 128, 362 S.E.2d 574, 1987 N.C. App. LEXIS 3443 (1987).

Resistance Not Warranted. —

Where a patrolman, while not engaged in any patrol of the highway for purposes of observing traffic or making random license checks, spontaneously decided to stop petitioner, not while petitioner was “on a public highway” nor while petitioner was operating a vehicle, but instead while petitioner was in a private driveway, although petitioner would have had a meritorious defense to any prosecution based on failure to display his license, he was not entitled to invoke self-help against what was, at the time, an arguably lawful arrest, and petitioner’s conviction for assaulting the highway patrolman could survive despite the finding that the officer’s initial stop and demand were illegal as an unreasonable search and seizure under U.S. Const., Amend. IV. Keziah v. Bostic, 452 F. Supp. 912, 1978 U.S. Dist. LEXIS 16900 (W.D.N.C. 1978).

Where the evidence is sufficient for the jury to find that a defendant unlawfully and willfully, by loud and abusive language directed at an officer, delayed him in making his investigation, this requires the submission of the case to the jury. State v. Leigh, 10 N.C. App. 202, 178 S.E.2d 85, 1970 N.C. App. LEXIS 1237 (1970).

Trial court did not err in finding defendant delinquent for resisting, delaying, and obstructing an officer because the State provided substantial evidence to support the adjudication; defendant consented to the officer’s search of his person, he refused to comply when the officer asked him to open his mouth, he attempted to swallow what he had in his mouth, and he willfully engaged in a physical confrontation with the officer and attempted to flee. In re S.D.R., 191 N.C. App. 552, 664 S.E.2d 414, 2008 N.C. App. LEXIS 1481 (2008).

In a case in which defendant, who had been charged with violating 8 U.S.C.S. § 1326(a) and (b)(2), filed a motion to suppress all information law enforcement collected following his arrest that revealed his true identity, he unsuccessfully argued that he was free to leave the scene since her arrest was unlawful. His arrest was lawful, and when he fled after a police detective’s direction to return to his vehicle, defendant was willfully and unlawfully resisting, delaying, and obstructing a public officer in discharging or attempting to discharge a duty of his office, in violation of G.S. 14-223 . United States v. Rosas-Herrera, 816 F. Supp. 2d 273, 2011 U.S. Dist. LEXIS 116363 (M.D.N.C. 2011), aff'd, 499 Fed. Appx. 249, 2012 U.S. App. LEXIS 25593 (4th Cir. 2012).

Defendant was properly found guilty of resisting an officer where upon registering defendant was violating the noise ordinance, the police officers requested defendant provide identification in order to issue him a citation. Defendant’s subsequent refusal to provide identification hindered the police from issuing defendant a citation, and thereby amounted to resisting an officer. State v. Pavkovic, 267 N.C. App. 460, 833 S.E.2d 383, 2019 N.C. App. LEXIS 761 (2019).

Lack of Probable Cause to Arrest. —

Trial court erred by denying defendant’s motion to suppress a firearm on the basis that the officers did not have probable cause to arrest him for resisting, denying, or obstructing a public officer; the officer lacked a reasonable suspicion that criminal activity was afoot when he directed defendant to stop, and thus defendant was not fleeing from a lawful investigatory stop. State v. Holley, 267 N.C. App. 333, 833 S.E.2d 63, 2019 N.C. App. LEXIS 727 (2019).

Evidence of Acquittal on Assault Charge Not Relevant to Charge of Resistance. —

Trial court did not err in refusing to allow defendant to introduce evidence of her acquittal on an assaulting a government officer charge as the acquittal on the assault charge had no relevance as to whether defendant was guilty of obstructing and delaying a public officer. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824, 2004 N.C. App. LEXIS 742 (2004).

Involuntary Commitment. —

Trial court did not err by conducting a fact-based analysis in determining whether defendant was charged with a violent crime under G.S. 15A-1003(a) or in concluding that defendant was charged with a violent crime because although violence was not an element of the offenses for which he was charged, possession of a firearm by a felon, G.S. 14-415.1 , and resisting an officer, G.S. 14-223 , an assault with a deadly weapon in violation of G.S. 14-33(c)(1) was involved in the commission of the crime of resisting an officer. In re Murdock, 222 N.C. App. 45, 730 S.E.2d 811, 2012 N.C. App. LEXIS 947 (2012).

Evidence Sufficient to Withstand Dismissal. —

Trial court did not err in denying defendant’s motion to dismiss an obstruction and delay of a public officer charge under G.S. 14-223 as: (1) defendant inserted herself into an investigation of a school fight, (2) she interfered with the school safety officer’s attempts to secure a student in his patrol car by physically blocking him from closing his car door, and repeatedly ignoring his instructions to step away, (3) she attempted to incite the gathering crowd to interfere, (4) at her own car, she again refused to cooperate with the officer to the point of running across the street, with the result that the student was left alone in the patrol car, and (5) the officer was unable to continue with his investigation of the fight, and he was required to seek back-up. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824, 2004 N.C. App. LEXIS 742 (2004).

Facts of the case, when viewed in the light most favorable to the State, supported the inference that the officer was discharging official duties by observing defendant, telling defendant to remain in the vehicle, and asking to search defendant after defendant reluctantly answered that defendant did not have any weapons; this evidence was sufficiently substantial to survive defendant’s motion to dismiss the resisting an officer charge. State v. Shearin, 170 N.C. App. 222, 612 S.E.2d 371, 2005 N.C. App. LEXIS 1002 (2005).

Trial court did not err in denying defendant’s motion to dismiss the charge of resisting, delaying, or obstructing a public officer because defendant’s refusal to provide identifying information hindered an officer from completing a seatbelt citation; and defendant did not make any showing that he was justified in refusing to provide his identity to the officer. State v. Friend, 237 N.C. App. 490, 768 S.E.2d 146, 2014 N.C. App. LEXIS 1208 (2014).

State introduced sufficient evidence of both defendant’s intent to delay and her actual delay of a police officer in the performance of his duties. Therefore, the trial court did not err in denying defendant’s motion to dismiss. State v. Peters, 255 N.C. App. 382, 804 S.E.2d 811, 2017 N.C. App. LEXIS 746 (2017).

Evidence was sufficient to support defendant’s conviction of resisting a public officer because the evidence showed that when the officer approached defendant’s car and asked defendant to roll down the defendant’s window so the officer could speak with the defendant, the defendant refused, the defendant “tensed up” and refused to cooperate when the officer tried to handcuff the defendant, and defendant resisted, delayed, and obstructed officers at the hospital when the officers attempted to execute a search warrant to draw blood. State v. Hoque, 269 N.C. App. 347, 837 S.E.2d 464, 2020 N.C. App. LEXIS 15 (2020).

Defendant’s failure to provide information about defendant’s identity during a lawful stop constituted resistance, delay, or obstruction because defendant’s refusal to provide identifying information hindered a police officer from completing a seatbelt citation. Furthermore, defendant did not make any showing that defendant was justified in refusing to provide defendant’s identity to the officer. State v. William, 2014 N.C. App. LEXIS 1425 (Dec. 2, 2014).

Defendant’s failure to provide information about defendant’s identity during a lawful stop constituted resistance, delay, or obstruction because defendant’s refusal to provide identifying information hindered a police officer from completing a seatbelt citation. Furthermore, defendant did not make any showing that defendant was justified in refusing to provide defendant’s identity to the officer. State v. Friend, 237 N.C. App. 490, 768 S.E.2d 146, 2014 N.C. App. LEXIS 1208 (2014).

Evidence Insufficient to Withstand Dismissal. —

In a case in which defendant appealed his conviction for resisting arrest, his flight from a house that was not his own when a police officer at the front door announced “police, search warrant,” was not sufficient evidence of resisting arrest. There was no authority for the State’s presumption that a person whose property was not the subject of a search warrant could not peacefully leave the premises after the police knocked and announced if the police had not asked him to stay. State v. Richardson, 202 N.C. App. 570, 689 S.E.2d 188, 2010 N.C. App. LEXIS 267 (2010).

III.Indictments and Warrants

Allegations Required, Generally. —

A warrant or bill of indictment charging a violation of this section must identify the officer by name and indicate the official duty he was discharging or attempting to discharge, and should point out, in a general way at least, the manner in which the defendant is charged with having resisted, delayed, or obstructed such officer. State v. Smith, 262 N.C. 472 , 137 S.E.2d 819, 1964 N.C. LEXIS 662 (1964).

A warrant charging a violation of this section must: (a) Identify by name the person alleged to have been resisted, delayed or obstructed, and describe his official character with sufficient certainty to show that he was a public officer within the purview of the statute; (b) indicate the official duty he was discharging or attempting to discharge; and (c) state in a general way the manner in which accused resisted, delayed or obstructed such officer. State v. Fenner, 263 N.C. 694 , 140 S.E.2d 349, 1965 N.C. LEXIS 1351 (1965); State v. Wiggs, 269 N.C. 507 , 153 S.E.2d 84, 1967 N.C. LEXIS 1097 (1967); State v. White, 3 N.C. App. 443, 165 S.E.2d 19, 1969 N.C. App. LEXIS 1596 (1969).

The prerequisites of the affidavit portion of a warrant properly charging the offense of resisting arrest are set forth in State v. Wiggs, 269 N.C. 507 , 153 S.E.2d 84, 1967 N.C. LEXIS 1097 (1967) and State v. Fenner, 263 N.C. 694 , 140 S.E.2d 349, 1965 N.C. LEXIS 1351 (1965); State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153, 1971 N.C. App. LEXIS 1648 (1971).

One of the prerequisites of the affidavit portion of a warrant properly charging the offense of resisting arrest is that the affidavit upon which the order of arrest is based shall identify by name the person alleged to have been resisted, delayed or obstructed, and describe his official character with sufficient certainty to show that he was a public officer within the purview of the statute. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153, 1971 N.C. App. LEXIS 1648 (1971).

Victim Must Be Named. —

In order to properly charge an assault, there must be a victim named, since by failing to name the particular person assaulted, the defendant would not be protected from a subsequent prosecution for assault upon a named person. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153, 1971 N.C. App. LEXIS 1648 (1971).

Official Duty Being Performed Must Be Specified. —

For a warrant to charge a defendant with resisting, delaying, or obstructing an officer in discharging or attempting to discharge a duty of his office in violation of this section, the warrant must indicate the official duty the officer was discharging or attempting to discharge. State v. Waller, 37 N.C. App. 133, 245 S.E.2d 808, 1978 N.C. App. LEXIS 2669 (1978).

A bill of indictment is defective that does not charge the official duty the named officer was discharging or attempting to discharge. State v. Dunston, 256 N.C. 203 , 123 S.E.2d 480, 1962 N.C. LEXIS 506 (1962).

To charge a violation of this section, the warrant or bill must indicate the specific official duty the officer was discharging or attempting to discharge. State v. Wells, 59 N.C. App. 682, 298 S.E.2d 73, 1982 N.C. App. LEXIS 3189 (1982); State v. Davis, 90 N.C. App. 185, 368 S.E.2d 52, 1988 N.C. App. LEXIS 412 (1988).

Bill of indictment charging defendant with violating G.S. 14-223 was insufficient, because it failed to describe the duties the arresting officer was discharging or attempting to discharge when defendant resisted arrest. State v. Ellis, 168 N.C. App. 651, 608 S.E.2d 803, 2005 N.C. App. LEXIS 449 (2005).

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4 (a), he unsuccessfully argued that the indictments charging him with violating G.S. 14-33(c)(4) and G.S. 14-258.4 had to meet the same requirements as one charging a person with the offense of resisting, delaying, or obstructing an officer under G.S. 14-223 . While an indictment alleging a violation of G.S. 14-223 had to describe the duty the named officer was discharging or attempting to discharge, because the specific duty that an officer was attempting to discharge was not an essential element of G.S. 14-33(c)(4) or G.S. 14-258.4, the duty the officer was attempting to discharge did not have to described in the indictments. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

General Description of Defendant’s Actions. —

An indictment for resisting arrest must only include a general description of the defendant’s actions. State v. Baldwin, 59 N.C. App. 430, 297 S.E.2d 188, 1982 N.C. App. LEXIS 3170 (1982), cert. denied, 307 N.C. 698 , 301 S.E.2d 390, 1983 N.C. LEXIS 1235 (1983).

Allegations Held Sufficient. —

Warrant charging that defendant did resist, delay, and obstruct named police officers in the making of a lawful arrest “by shoving said officers and refusing to go” is sufficient to charge a violation of this section. State v. White, 3 N.C. App. 443, 165 S.E.2d 19, 1969 N.C. App. LEXIS 1596 (1969).

Indictment which stated that defendant resisted an officer by not obeying the officer’s command was sufficient to put defendant on notice that the events surrounding his arrest would be brought out at trial. State v. Hemphill, 219 N.C. App. 50, 723 S.E.2d 142, 2012 N.C. App. LEXIS 283 (2012).

Allegations Held Insufficient. —

The charge that defendant “did resist arrest” neither charged the offense in the language of this section, nor specifically set forth the facts constituting the offense created by the section. It was wholly insufficient to support the verdict and judgment rendered. State v. Raynor, 235 N.C. 184 , 69 S.E.2d 155, 1952 N.C. LEXIS 353 (1952).

A warrant alleging that defendant unlawfully and willfully violated the laws of North Carolina by resisting arrest is insufficient to charge the offense proscribed by this section. This allegation and the additional allegation that the defendant interfered “with an officer while legally performing the duties of his office” did not suffice to impute to defendant a violation of the section. These allegations did not describe the official character of the person alleged to have been resisted with sufficient certainty to show that he was a public officer within the purview of the statute. State v. Jenkins, 238 N.C. 396 , 77 S.E.2d 796, 1953 N.C. LEXIS 441 (1953).

An indictment charging that defendant did unlawfully “resist, delay and obstruct a public officer in discharge and attempting to discharge the duty of his office . . .” was insufficient to charge the offense of resisting arrest. State v. Scott, 241 N.C. 178 , 84 S.E.2d 654, 1954 N.C. LEXIS 567 (1954).

Indictment is fatally defective though it identifies public officer by name where it fails to indicate the official duty he was discharging or attempting to discharge and does not point out even in a general way the manner in which the defendant is charged with having resisted, delayed or obstructed such public officer. State v. Eason, 242 N.C. 59 , 86 S.E.2d 774, 1955 N.C. LEXIS 460 (1955); State v. Harvey, 242 N.C. 111 , 86 S.E.2d 793, 1955 N.C. LEXIS 465 (1955). See State v. Stonestreet, 243 N.C. 28 , 89 S.E.2d 734, 1955 N.C. LEXIS 691 (1955).

An indictment charging defendant with resisting an officer in the language of this section was held insufficient. State v. Barnes, 253 N.C. 711 , 117 S.E.2d 849, 1961 N.C. LEXIS 358 (1961).

Warrant held insufficient to charge a violation of this section. State v. White, 266 N.C. 361 , 145 S.E.2d 872, 1966 N.C. LEXIS 1351 (1966).

Warrant was fatally defective and void because of the combination of failing to identify the assaulted officer by name in the affidavit and failing to order the defendant arrested in the order of arrest. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153, 1971 N.C. App. LEXIS 1648 (1971).

An instrument setting forth the charge of assault by the use of the words “assault on an officer” to identify the person assaulted was not sufficient to charge the offense of assault. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153, 1971 N.C. App. LEXIS 1648 (1971).

A “North Carolina Uniform Traffic Ticket” setting forth the charge of resisting arrest by using only the two words “resist arrest” was not sufficient to charge the offense. State v. Powell, 10 N.C. App. 443, 179 S.E.2d 153, 1971 N.C. App. LEXIS 1648 (1971).

An order granting motion to amend warrant so as to charge the violation in the words of the statute cannot cure fatal defects in the warrant in failing to charge the offense when the amendment is not actually made, since neither the motion nor the order sets out the contemplated wording of the proposed amendment and therefore could not be self-executing. State v. Thorne, 238 N.C. 392 , 78 S.E.2d 140, 1953 N.C. LEXIS 454 (1953); State v. Jenkins, 238 N.C. 396 , 77 S.E.2d 796, 1953 N.C. LEXIS 441 (1953).

Indictment in Two Counts. —

An indictment having two counts, one against one person under this section, and the other against several persons under former G.S. 14-224 , was defective, but, where not objected to before a verdict which convicted on one count and acquitted on the other, was not sufficient grounds for arrest of judgment, as the acquittal was equivalent to a nol pros. State v. Perdue, 107 N.C. 853 , 12 S.E. 253, 1890 N.C. LEXIS 157 (1890).

Quashing Indictment Insufficient Under This Section If Sufficient to Convict of Assault. —

Where an indictment for resisting an officer is defective, as such, it ought not to be quashed if the defendant may be convicted thereon for a simple assault. State v. Dunn, 109 N.C. 839 , 13 S.E. 881, 1891 N.C. LEXIS 322 (1891).

Evidence Held Sufficient. —

As there was sufficient evidence presented to the jury to find that defendant ran away from a deputy on foot, as alleged in the indictment, the trial court did not err by denying defendant’s motion to dismiss for a fatal variance. State v. Cromartie, 257 N.C. App. 790, 810 S.E.2d 766, 2018 N.C. App. LEXIS 83 (2018).

Variance. —

There was not a fatal variance between the indictment allegation and the evidence presented at trial, and therefore the trial court did not err by denying defendant’s motion to suppress the charge of resisting a public officer under N.C. Gen. Stat. § 14-223 (2019), because the indictment alleged that at the time of defendant’s resistance the officer was attempting to take him into custody for processing narcotics, and the State presented evidence that defendant’s arrest was lawful, as the detective had probable cause to arrest defendant for possession of marijuana when he started to run away. State v. Tarlton, 2021-NCCOA-458, 279 N.C. App. 249, 864 S.E.2d 810, 2021- NCCOA-458, 2021 N.C. App. LEXIS 456 (2021).

IV.Instructions

Instruction on Self-Defense. —

Where, in a prosecution charging defendant with resisting arrest and with obstructing an officer in the performance of his duties, the defendant offered evidence that the officer had struck the first blow and that defendant was forced in self-defense to take the actions which resulted in the charges against him, the trial court should have instructed the jury to acquit defendant if they found that he was legitimately exercising a right of self-defense; the court’s instruction merely that the jury “will take into consideration in arriving at your verdict” the defendant’s lawful exercise of self-defense was insufficient and was reversible error. State v. May, 8 N.C. App. 423, 174 S.E.2d 633, 1970 N.C. App. LEXIS 1579 (1970).

Instruction Held Expression of Opinion. —

In prosecution charging resisting lawful arrest in violation of this section, statement of the trial court during the instructions that “the offense charged here was committed in violation of G.S. 14-223 ” was held to constitute an expression of opinion. State v. Cooper, 4 N.C. App. 210, 166 S.E.2d 509, 1969 N.C. App. LEXIS 1468 (1969).

Lesser Included Offense Instruction Properly Denied. —

Defendant was not entitled to a jury instruction on a lesser included offense, where defendant was prosecuted for financial identity fraud under G.S. 14-113.20 , and defendant sought a lesser included offense instruction for obstruction or delay of an officer under G.S. 14-223 ; because all of the elements of the offense of obstructing or delay an officer were not included in financial identity fraud, obstructing or delaying an officer was not a lesser included offense. State v. Dammons, 159 N.C. App. 284, 583 S.E.2d 606, 2003 N.C. App. LEXIS 1539 (2003), cert. denied, 541 U.S. 951, 124 S. Ct. 1691, 158 L. Ed. 2d 382, 2004 U.S. LEXIS 2256 (2004).

Instruction Properly Refused. —

Trial court did not err in refusing defendant’s request for a jury instruction that the incident that occurred at the patrol car was separate from that occurring at defendant’s car and that evidence of the latter was not proof that defendant obstructed and delayed the officer, as the offenses of assaulting a government officer and obstruction and delay of a public officer were separate; the jury could find, without violating the Double Jeopardy Clause, that the evidence of defendant’s conduct that occurred after she left the patrol car was supportive of a charge of obstructing and delaying, even though the district court had found that the same conduct was insufficient to constitute an assault. State v. Bell, 164 N.C. App. 83, 594 S.E.2d 824, 2004 N.C. App. LEXIS 742 (2004).

OPINIONS OF ATTORNEY GENERAL

Applicability to Arrest by Special Police. — See opinion of Attorney General to Mr. G.R. Rankin, Vanguard Security Service, 40 N.C. Op. Att'y Gen. 152 (1970).

§ 14-224. [Repealed]

Repealed by Session Laws 1973, c. 1286, s. 26.

Cross References.

See Editor’s note following the analysis to Chapter 15. For present provisions as to assistance to law-enforcement officers by private persons, see G.S. 15A-405 .

§ 14-225. False reports to law enforcement agencies or officers.

  1. Except as provided in subsection (b) of this section, any person who shall willfully make or cause to be made to a law enforcement agency or officer any false, deliberately misleading or unfounded report, for the purpose of interfering with the operation of a law enforcement agency, or to hinder or obstruct any law enforcement officer in the performance of his duty, shall be guilty of a Class 2 misdemeanor.
  2. A violation of subsection (a) of this section is punishable as a Class H felony if the false, deliberately misleading, or unfounded report relates to a law enforcement investigation involving the disappearance of a child as that term is defined in G.S. 14-318.5 or child victim of a Class A, B1, B2, or C felony offense. For purposes of this subsection, a child is any person who is less than 16 years of age.

History. 1941, c. 363; 1969, c. 1224, s. 3; 1993, c. 539, s. 137; 1994, Ex. Sess., c. 23, ss. 1-3; c. 24, s. 14(c); 2013-52, s. 6.

Effect of Amendments.

Session Laws 2013-52, s. 6, effective December 1, 2013, redesignated the former provisions as present subsection (a) and added “Except as provided in subsection (b) of this section” and “deliberately” preceding “misleading or unfounded report” in subsection (a); and added subsection (b). For applicability, see Editor’s note.

Legal Periodicals.

For comment on this enactment, see 19 N.C.L. Rev. 477 (1941).

CASE NOTES

Federal Offense Not Substantially Similar to North Carolina Misdemeanor. —

Defendant’s ineffective assistance of counsel claim based on counsel’s failure to demonstrate that her prior federal conviction for making a false statement to the Federal Bureau of Investigation under 18 U.S.C.S. § 1001 was substantially similar to the North Carolina misdemeanor of making a false, misleading and unfounded report to law enforcement under G.S. 14-225 failed as defendant could not show prejudice since G.S. 14-225 and § 1001 were not substantially similar because G.S. 14-225 dealt only with a report and contained no requirement of materiality. State v. Crawford, 225 N.C. App. 426, 737 S.E.2d 768, 2013 N.C. App. LEXIS 118 (2013).

Insufficient Evidence. —

While the State’s evidence showed that defendant willfully made a false report to the police, absent any evidence that she did so with any malicious purpose, or intent to interfere with a law enforcement agency or hindering or obstructing the officer in the performance of his duties, her conviction under G.S. 14-225 was reversed. State v. Dietze, 190 N.C. App. 198, 660 S.E.2d 197, 2008 N.C. App. LEXIS 834 (2008).

§ 14-225.1. Picketing or parading.

Any person who, with intent to interfere with, obstruct, or impede the administration of justice, or with intent to influence any justice or judge of the General Court of Justice, juror, witness, district attorney, assistant district attorney, or court officer, in the discharge of his duty, pickets, parades, or uses any sound truck or similar device within 300 feet of an exit from any building housing any court of the General Court of Justice, or within 300 feet of any building or residence occupied or used by such justice, judge, juror, witness, district attorney, assistant district attorney, or court officer, shall upon plea or conviction be guilty of a Class 1 misdemeanor.

History. 1977, c. 266, s. 1; 1993, c. 539, s. 138; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Constitutional Challenge to Section Held Moot. —

In an action to contest the constitutionality of this section under the Declaratory Judgment Act when his license to picket was voided, plaintiff was granted a temporary restraining order which allowed the picketing to proceed; therefore, where it was over a year later when the lower court granted plaintiff’s motion for summary judgment and over two years before the case was heard on appeal, the case was moot, both at the time it was before the lower court and on appeal; plaintiff had yet to be arrested or refused a permit for a similar demonstration, and the case did not fall under the exception “capable of repetition, yet evading review.” Crumpler v. Thornburg, 92 N.C. App. 719, 375 S.E.2d 708, 1989 N.C. App. LEXIS 50 (1989).

§ 14-225.2. Harassment of and communication with jurors.

  1. A person is guilty of harassment of a juror if he:
    1. With intent to influence the official action of another as a juror, harasses, intimidates, or communicates with the juror or his spouse; or
    2. As a result of the prior official action of another as a juror in a grand jury proceeding or trial, threatens in any manner or in any place, or intimidates the former juror or his spouse.
  2. In this section “juror” means a grand juror or a petit juror and includes a person who has been drawn or summoned to attend as a prospective juror.
  3. A person who commits the offense defined in subdivision (a)(1) of this section is guilty of a Class H felony. A person who commits the offense defined in subdivision (a)(2) of this section is guilty of a Class I felony.

History. 1977, c. 711, s. 16; 1979, 2nd Sess., c. 1316, s. 15; 1981, c. 63, s. 1; c. 179, s. 14; 1985, c. 691; 1993, c. 539, s. 1211; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Communication which constitutes harassment of jurors is not protected speech. Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4, 2001 N.C. App. LEXIS 146 (2001).

Obstruction of Justice. —

Complaint of plaintiffs who had served as jurors in a medical malpractice case against defendant doctor who had subsequently sent their names and addresses to practitioners at regional medical center sufficiently alleged a cause of action for obstruction of justice in violation of this section. Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4, 2001 N.C. App. LEXIS 146 (2001).

Insufficient Evidence. —

Because the evidence in defendant’s trial was insufficient to raise anything more than mere conjecture that he had made an agreement with another person to threaten or intimidate a juror from his twin brother’s criminal trial, it was error for the trial court to deny defendant’s motion to dismiss the charge of harassment of jurors. While defendant, his mother and his brother made comments to the jurors as the existed the court house, nothing indicated that they conspired to threaten or intimate a juror. State v. Mylett, 374 N.C. 376 , 2020 N.C. LEXIS 369 (2020).

§ 14-226. Intimidating or interfering with witnesses.

  1. If any person shall by threats, menaces or in any other manner intimidate or attempt to intimidate any person who is summoned or acting as a witness in any of the courts of this State, or prevent or deter, or attempt to prevent or deter any person summoned or acting as such witness from attendance upon such court, the person shall be guilty of a Class G felony.
  2. A defendant in a criminal proceeding who threatens a witness in the defendant’s case with the assertion or denial of parental rights shall be in violation of this section.

History. 1891, c. 87; Rev., s. 3696; C.S., s. 4380; 1977, c. 711, s. 16; 1993, c. 539, s. 1212; 1994, Ex. Sess., c. 24, s. 14(c); 2004-128, s. 15; 2006-264, s. 2; 2011-190, s. 1.

Effect of Amendments.

Session Laws 2004-128, s. 15, effective December 1, 2004, and applicable to offenses committed on or after that date, added the subsection (a) designation, and added subsection (b).

Session Laws 2006-264, s. 2, effective August 27, 2006, substituted “in violation” for “a violation” in subsection (b).

Session Laws 2011-190, s. 1, effective December 1, 2011, and applicable to offenses committed on or after that date, substituted “the person shall be guilty of a Class G felony” for “he shall be guilty of a Class H felony” at the end of subsection (a).

CASE NOTES

This section is additional to and not a repeal of the inherent power of the court to protect itself from interference by bribery or intimidation of its jurors or witnesses in both civil and criminal cases. In re Young, 137 N.C. 552 , 50 S.E. 220, 1905 N.C. LEXIS 206 (1905).

The gist of the offense under this section is the obstruction of justice. State v. Neely, 4 N.C. App. 475, 166 S.E.2d 878, 1969 N.C. App. LEXIS 1523 (1969); State v. Rogers, 68 N.C. App. 358, 315 S.E.2d 492, 1984 N.C. App. LEXIS 3294 , cert. denied, 311 N.C. 767 , 319 S.E.2d 284, 1984 N.C. LEXIS 2025 (1984).

It is an offense, at common law, to dissuade or prevent, or to attempt to dissuade or prevent, a witness from attending or testifying on the trial of a cause, and such conduct may be made an offense by statute. The gist of the offense is the willful and corrupt attempt to interfere with and obstruct the administration of justice. State v. Neely, 4 N.C. App. 475, 166 S.E.2d 878, 1969 N.C. App. LEXIS 1523 (1969).

It is immaterial that person procured to absent himself was not regularly summoned or legally bound to attend as a witness. State v. Neely, 4 N.C. App. 475, 166 S.E.2d 878, 1969 N.C. App. LEXIS 1523 (1969).

Wrongful Discharge in Violation of Public Policy. —

Because plaintiff former president was not acting as an actual or potential witness in a North Carolina court proceeding or investigation at the time of defendant employer’s alleged obstruction of justice, but rather, alleged he was terminated because he disclosed information to federal authorities and participated in investigations by federal authorities about the employer’s conduct, a wrongful discharge in violation of public policy claim failed. Feldman v. Law Enforcement Assocs. Corp., 779 F. Supp. 2d 472, 2011 U.S. Dist. LEXIS 24994 (E.D.N.C. 2011), dismissed in part, 955 F. Supp. 2d 528, 2013 U.S. Dist. LEXIS 91131 (E.D.N.C. 2013).

Offense Justified Issuance of No-Contact Order. —

Neighbors’ conduct in beating on the victim’s door, following the victim in her car, and implicitly threatening vandalism to her carport after the victim reported the neighbor to the police constituted unlawful conduct sufficient for the issuance of a no-contact order under G.S. 50C-1 and G.S. 50C-5 . Such behavior constituted intimidating a witness in a pending criminal case, in violation of G.S. 14-226(a). St. John v. Brantley, 217 N.C. App. 558, 720 S.E.2d 754, 2011 N.C. App. LEXIS 2612 (2011), cert. denied, 366 N.C. 232 , 731 S.E.2d 153, 2012 N.C. LEXIS 674 (2012).

Jury Instructions. —

It was no error to instruct a jury that it was immaterial if the witness was summoned because the witness only had to be a “potential witness.” State v. Jones, 237 N.C. App. 526, 767 S.E.2d 341, 2014 N.C. App. LEXIS 1211 (2014).

Trial court did not commit plain error in instructing the jury on deterring a witness where the two counts involved identical legal elements, the trial court thoroughly instructed the jury on the elements of the charges, defendant failed to show that the omission of the word “threat” in one instruction had a probable impact on the verdict, and the trial court did not err by not repeating the instructions verbatim for each count. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

Although defendant argued that the trial court erred in defendant’s trial for intimidating a witness by using the phrase “attempted to deter” in the jury instruction for the charge, the trial court did not deviate from the proposed or pattern instruction. Furthermore, presuming, arguendo, that the trial court’s use of the phrase “attempted to deter” was an erroneous deviation, defendant failed to show that the deviation was likely, in light of the entire charge, to mislead the jury. State v. Clagon, 279 N.C. App. 425, 865 S.E.2d 343, 2021- NCCOA-497, 2021 N.C. App. LEXIS 498 (2021).

Habitual Offender Conviction Vacated. —

Defendant’s convictions for habitual violation of a domestic violence protection order were vacated because defendant was convicted of interfering with a witness based on the same conduct, and G.S. 50B-4.1(f) barred the convictions if another law required greater punishment. State v. Jones, 237 N.C. App. 526, 767 S.E.2d 341, 2014 N.C. App. LEXIS 1211 (2014).

Evidence Sufficient. —

Sufficient evidence existed to establish that juvenile attempted to intimate a witness in violation of G.S. 14-226 , after a court counselor witnessed the juvenile mouth the words, “I’m going to kick your ass,” while in court at his adjudication hearing after the witness testified against the juvenile with regard to breaking and entering and trespass charges. In re R.D.R., 175 N.C. App. 397, 623 S.E.2d 341, 2006 N.C. App. LEXIS 52 (2006).

Voice mail message defendant left, in which defendant called the victim names and said that defendant was going to give the victim a taste of the victim’s own medicine once released, only supported one charge of intimidating a witness by threats; however, the victim’s testimony that defendant told her on at least 10 occasions not to testify was not sufficient to show that defendant threatened the victim. State v. Braxton, 183 N.C. App. 36, 643 S.E.2d 637, 2007 N.C. App. LEXIS 834 (2007).

It was not error to deny defendant’s motion to dismiss a witness intimidation charge because sufficient evidence showed the involvement of the person intimidated in defendant’s child custody case with the Department of Social Services (DSS) was substantial enough to qualify the person as a “prospective witness” in that case since: (1) defendant was only involved in therapy with that person as a result of defendant’s custody case; (2) defendant confronted the person regarding the person’s letter to DSS as part of that case; and (3) the letter created a likelihood the person would testify regarding defendant. State v. Shannon, 230 N.C. App. 583, 750 S.E.2d 571, 2013 N.C. App. LEXIS 1202 (2013), cert. denied, 368 N.C. 240 , 768 S.E.2d 856, 2015 N.C. LEXIS 224 (2015).

Trial court did not err by denying defendant’s motion to dismiss the two counts of deterring a witness where, construing defendant’s first letter with defendant’s earlier threats, a jury could reasonably interpret the letter to constitute a threat of bodily harm or death against the victim, the actual court number of the case listed in the indictment was surplusage, and in later letters defendant told the victim and her daughter not to come to court and made clear that “ordering a hit” was a threat to murder the victim. The fact that the victim and her daughter did not receive the letters was irrelevant. State v. Barnett, 245 N.C. App. 101, 784 S.E.2d 188, 2016 N.C. App. LEXIS 99 , rev'd in part, 369 N.C. 298 , 794 S.E.2d 306, 2016 N.C. LEXIS 1118 (2016).

Evidence Insufficient. —

Letter defendant wrote to a witness set to testify against a friend defendant made in jail was insufficient to support a conviction for attempting to intimidate a witness, because the letter was neither threatening, coercive, or menacing, and the letter did not hint at bodily harm or violence against the witness, contained no cursing, vulgarity, or threatening language, and maintained a courteous tone throughout. State v. Williams, 186 N.C. App. 233, 650 S.E.2d 607, 2007 N.C. App. LEXIS 2122 (2007).

§ 14-226.1. Violating orders of court.

Any person who shall willfully disobey or violate any injunction, restraining order, or any order lawfully issued by any court for the purpose of maintaining or restoring public safety and public order, or to afford protection for lives or property during times of a public crisis, disaster, riot, catastrophe, or when such condition is imminent, or for the purpose of preventing and abating disorderly conduct as defined in G.S. 14-288.4 shall be guilty of a Class 3 misdemeanor which may include a fine not to exceed two hundred fifty dollars ($250.00). This section shall not in any manner affect the court’s power to punish for contempt.

History. 1969, c. 1128; 1993, c. 539, s. 139; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-226.2. Harassment of participant in neighborhood crime watch program.

Any person who willfully threatens or intimidates an identifiable member or a resident in the same household as the member of a neighborhood crime watch program for the purpose of intimidating or retaliating against that person for the person’s participation in a neighborhood crime watch program is guilty of a Class 1 misdemeanor including a fine of at least three hundred dollars ($300.00). It is a violation of this section for a person to threaten or intimidate an identifiable member or a resident in the same household as the member of a neighborhood crime watch program while that member is traveling to or from a neighborhood crime watch meeting, actively participating in a neighborhood crime watch program activity, or actively participating in an ongoing criminal investigation.

History. 2006-181, s. 3.

§ 14-226.3. Interference with electronic monitoring devices.

  1. For purposes of this section, the term “electronic monitoring device” includes any electronic device that is used to track the location of a person.
  2. It is unlawful for any person to knowingly and without authority remove, destroy, or circumvent the operation of an electronic monitoring device that is being used for the purpose of monitoring a person who is:
    1. Complying with a house arrest program;
    2. Wearing an electronic monitoring device as a condition of bond or pretrial release;
    3. Wearing an electronic monitoring device as a condition of probation;
    4. Wearing an electronic monitoring device as a condition of parole; or
    5. Wearing an electronic monitoring device as a condition of post-release supervision.
  3. It is unlawful for any person to knowingly and without authority request or solicit any other person to remove, destroy, or circumvent the operation of an electronic monitoring device that is being used for the purposes described in subsection (b) of this section.
  4. This section does not apply to persons who are being monitored by an electronic monitoring device pursuant to the provisions of Article 27A of Chapter 14 of the General Statutes, or Chapter 7B of the General Statutes.
  5. Violation of this section by a person who is required to comply with electronic monitoring as a result of a conviction for a criminal offense is a felony one class lower than the most serious underlying felony or a misdemeanor one class lower than the most serious underlying misdemeanor, except that, if the most serious underlying felony is a Class I felony, then violation of this section is a Class A1 misdemeanor. Violation of this section by a person who is required to comply with electronic monitoring as a condition of bond or pretrial release is a Class 1 misdemeanor. Violation of this section by any other person is a Class 2 misdemeanor.

History. 2009-415, s. 1.

§ 14-227. Failing to attend as witness before legislative committees.

If any person shall willfully fail or refuse to attend or produce papers, on summons of any committee of investigation of either house of the General Assembly, either select or committee of the whole, he shall be guilty of a Class 3 misdemeanor and fined not less than five hundred dollars ($500.00) nor more than one thousand dollars ($1,000).

History. 1869-70, c. 5, s. 2; Code, s. 2854; Rev., s. 3692; C.S., s. 4381; 1993, c. 539, s. 140; 1994, Ex. Sess., c. 24, s. 14(c).

Article 30A. Secret Listening.

§ 14-227.1. Secret listening to conference between prisoner and his attorney.

  1. It shall be unlawful for any person willfully to overhear, or procure any other person to overhear, or attempt to overhear any spoken words between a person who is in the physical custody of a law-enforcement agency or other public agency and such person’s attorney, by using any electronic amplifying, transmitting, or recording device, or by any similar or other mechanical or electrical device or arrangement, without the consent or knowledge of all persons engaging in the conversation.
  2. No evidence procured in violation of this section shall be admissible over objection against any person participating in such conference in any court in this State.

History. 1967, c. 187, s. 1.

§ 14-227.2. Secret listening to deliberations of grand or petit jury.

It shall be unlawful for any person willfully to overhear, or procure any other person to overhear, or attempt to overhear the investigations and deliberations of, or the taking of votes by, a grand jury or a petit jury in a criminal case, by using any electronic amplifying, transmitting, or recording device, or by any similar or other mechanical or electrical device or arrangement, without the consent or knowledge of said grand jury or petit jury.

History. 1967, c. 187, s. 1.

§ 14-227.3. Violation made misdemeanor.

All persons violating the provisions of G.S. 14-227.1 or 14-227.2 shall be guilty of a Class 2 misdemeanor.

History. 1967, c. 187, s. 2; 1969, c. 1224, s. 6; 1993, c. 539, s. 141; 1994, Ex. Sess., c. 24, s. 14(c).

Article 31. Misconduct in Public Office.

§ 14-228. Buying and selling offices.

If any person shall bargain away or sell an office or deputation of an office, or any part or parcel thereof, or shall take money, reward or other profit, directly or indirectly, or shall take any promise, covenant, bond or assurance for money, reward or other profit, for an office or the deputation of an office, or any part thereof, which office, or any part thereof, shall touch or concern the administration or execution of justice, or the receipt, collection, control or disbursement of the public revenue, or shall concern or touch any clerkship in any court of record wherein justice is administered; or if any person shall give or pay money, reward or other profit, or shall make any promise, agreement, bond or assurance for any of such offices, or for the deputation of any of them, or for any part of them, the person so offending in any of the cases aforesaid shall be guilty of a Class I felony.

History. 5, 6 Edw. VI, c. 16, ss. 1, 5; R.C., c. 34, s. 33; Code, s. 998; Rev., s. 3571; C.S., s. 4382; 1993, c. 539, s. 1213; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to validity of bargain to sell in office, see G.S. 128-3 .

As to sheriff letting to farm his office, see G.S. 162-24 .

§ 14-229. Acting as officer before qualifying as such.

If any officer shall enter on the duties of his office before he executes and delivers to the authority entitled to receive the same the bonds required by law, and qualifies by taking and subscribing and filing in the proper office the oath of office prescribed, he shall be guilty of a Class 1 misdemeanor and shall be ejected from his office.

History. Code, s. 79; Rev., s. 3565; C.S., s. 4383; 1999-408, s. 2.

§ 14-230. Willfully failing to discharge duties.

  1. If any clerk of any court of record, sheriff, magistrate, school board member, county commissioner, county surveyor, coroner, treasurer, or official of any of the State institutions, or of any county, city or town, shall willfully omit, neglect or refuse to discharge any of the duties of his office, for default whereof it is not elsewhere provided that he shall be indicted, he shall be guilty of a Class 1 misdemeanor. If it shall be proved that such officer, after his qualification, willfully and corruptly omitted, neglected or refused to discharge any of the duties of his office, or willfully and corruptly violated his oath of office according to the true intent and meaning thereof, such officer shall be guilty of misbehavior in office, and shall be punished by removal therefrom under the sentence of the court as a part of the punishment for the offense.
  2. No magistrate recusing in accordance with G.S. 51-5.5 may be charged under this section for recusal to perform marriages in accordance with Chapter 51 of the General Statutes.

History. 1901, c. 270, s. 2; Rev., s. 3592; C.S., s. 4384; 1943, c. 347; 1973, c. 108, s. 5; 1993, c. 539, s. 142; 1994, Ex. Sess., c. 24, s. 14(c); 2009-107, s. 1; 2015-75, s. 2.

Cross References.

As to failure of sheriff to make return, see G.S. 14-242 .

As to prosecution of officers failing to discharge duties, see G.S. 128-16 et seq.

Editor’s Note.

Session Laws 2015-75, s. 5, provides: “Any magistrate who resigned, or was terminated from, his or her office between October 6, 2014, and the effective date of this act [June 11, 2015] may apply to fill any vacant position of magistrate. Notwithstanding any other provision of law, with respect to any magistrate who resigned his or her office between October 6, 2014, and the effective date of this act, and who is subsequently reappointed as a magistrate within 90 days after the effective date of this act:

“(1) For the period of time between that magistrate’s resignation and his or her resumption of service upon reappointment, the magistrate shall not receive salary or other compensation and shall not earn leave. However, the magistrate shall be considered to have been serving as a magistrate during that period for purposes of determining continuous service, length of aggregate service, anniversary date, longevity pay rate, and the accrual of vacation and sick leave.

“(2) For purposes of the Teachers’ and State Employees’ Retirement System and the calculation of benefits under that System, (i) the magistrate shall be considered to have been an employee under G.S. 135-1(10) during the break in service, (ii) the period of the break in service shall be counted as membership service under G.S. 135-1(14) , and (iii) the magistrate shall be deemed to have earned compensation under G.S. 135-1(7a) during the break in service at the rate of compensation that would have applied had there been no break in service.

“(3) The Judicial Department shall pay and submit both the employee and employer contributions to the Retirement Systems Division on behalf of the magistrate as though that magistrate had been in active service during the period in question. Those contributions shall be submitted within 90 days of the magistrate’s resumption of service and shall not be subject to penalties or interest if submitted within that 90-day period.”

Effect of Amendments.

Session Laws 2009-107, s. 1, effective December 1, 2009, inserted “school board member” near the beginning of the first sentence.

Session Laws 2015-75, s. 2, effective June 11, 2015, added the subsection (a) designation and added subsection (b).

Legal Periodicals.

For article, “Removing Local Elected Officials From Office in North Carolina,” see 16 Wake Forest L. Rev. 547 (1980).

For article, “A Primer on North Carolina and Federal Use of Force Law: Trends in Fourth Amendment Doctrine, Qualified Immunity, and State Law Issues,” see 31 Campbell L. Rev. 431 (2009).

For article, “How Qualified Is Qualified Immunity: Adding A Third Prong To The Qualified Immunity Analysis,” see 43 Campbell L. Rev. 403 (2021).

CASE NOTES

In General. —

The law will not countenance or condone any attempt to defy its mandates. The private citizen must obey the law, and the public officer is not exempt from this duty by any special privilege appertaining to his office. He is not wiser than the law, nor is he above it. The truth is, that if he willfully neglects or omits to perform a public duty, he is liable to indictment at common law. State v. Commissioners, 4 N.C. 419 (1816); State v. Williams, 34 N.C. 172 (1851); State v. Furguson, 76 N.C. 197 (1877). If the neglect, omission, or refusal to discharge any of his official duties is willful and corrupt, it is criminal misbehavior, and subjects him to indictment for a misdemeanor and punishment by fine or imprisonment, and, as a part of the penalty, to removal from office. State ex rel. Battle v. City of Rocky Mount, 156 N.C. 329 , 72 S.E. 354, 1911 N.C. LEXIS 183 (1911).

History of Section. —

See State v. Hord, 264 N.C. 149 , 141 S.E.2d 241, 1965 N.C. LEXIS 1137 (1965).

Sections 7A-173 and 7A-376 are not irreconcilably in conflict with this section. State v. Greer, 308 N.C. 515 , 302 S.E.2d 774, 1983 N.C. LEXIS 1216 (1983).

Effect of Section on Common-Law Crime of Official Oppression. —

It is futile to attempt to mark the extent, if any, the common-law crime of official oppression has been modified or superseded by this section, as there is no exact common-law definition of official oppression, and the possible acts which may constitute the crime are as many and varied as the forms of corruption that may exist in public office. State v. Lackey, 271 N.C. 171 , 155 S.E.2d 465, 1967 N.C. LEXIS 1171 (1967).

An essential difference between a public office and mere employment is the fact that the duties of the incumbent of an office shall involve the exercise of some portion of the sovereign power. State v. Hord, 264 N.C. 149 , 141 S.E.2d 241, 1965 N.C. LEXIS 1137 (1965).

Failure to Establish Defendant Was an Official. —

Where the State failed to show any instance where the defendant could exercise sovereign power at any time in the course of his employment and failed to show that the defendant’s position of senior administrator at school for the blind was created by statute, constitution, or delegation of state authority, the State failed to establish he was an official of a state institution. State v. Eastman, 113 N.C. App. 347, 438 S.E.2d 460, 1994 N.C. App. LEXIS 18 (1994).

Elements of Offense. —

The offense described in this section has two components: (1) That the defendant be an official of a State institution, and (2) that he willfully fail to discharge the duties of his office; additionally, injury to the public is a judicially recognized element of the crime. State v. Birdsong, 325 N.C. 418 , 384 S.E.2d 5, 1989 N.C. LEXIS 480 (1989).

Injury to the public must occur as a consequence of the omission, neglect or refusal. State v. Rhome, 120 N.C. App. 278, 462 S.E.2d 656, 1995 N.C. App. LEXIS 823 (1995).

Willful Neglect and Injury to Public Required. —

It is to be observed that the essentials of the crime as prescribed are first, a willful neglect in the discharge of official duty, and second, injury to the public. State v. Anderson, 196 N.C. 771 , 147 S.E. 305, 1929 N.C. LEXIS 103 (1929).

Liability for Honest Errors. —

It is so well settled that there is nothing to the contrary that an officer who has to exercise his judgment or discretion is not liable criminally for any error which he commits, provided he acts honestly. State v. Powers, 75 N.C. 281 , 1876 N.C. LEXIS 275 (1876).

If the illegal act be done mala fide, then it becomes a crime, and the officer liable both civilly and criminally, but if free of any wicked intent, then he is civilly liable only. State v. Snuggs, 85 N.C. 541 , 1881 N.C. LEXIS 316 (1881).

Accused Must Show Good Faith. —

Where a public officer is indicted for failure to perform a duty required by law, the law raises a presumption that such failure is willful, and makes it incumbent upon him to rebut the presumption. State v. Heaton, 77 N.C. 505 , 1877 N.C. LEXIS 137 (1877).

And Public Will Be Protected Against Carelessness. —

However honest the defendants may be (and their honesty is not called in question) the public have a right to be protected against the wrongful conduct of their servants, if there is carelessness amounting to a willful want of care in the discharge of their official duties, which injuries the public. State v. Anderson, 196 N.C. 771 , 147 S.E. 305, 1929 N.C. LEXIS 103 (1929).

A duly appointed policeman of a city is an officer of such city within the meaning of this section. State v. Fesperman, 264 N.C. 160 , 141 S.E.2d 255, 1965 N.C. LEXIS 1138 (1965); State v. Teeter, 264 N.C. 162 , 141 S.E.2d 253, 1965 N.C. LEXIS 1140 (1965); State v. Stogner, 264 N.C. 163 , 141 S.E.2d 248, 1965 N.C. LEXIS 1141 (1965); State v. Fesperman, 264 N.C. 168 , 141 S.E.2d 252, 1965 N.C. LEXIS 1143 (1965).

As Is Chief of Police. —

A chief of police as well as a policeman is an officer of the municipality which engages his services, within the meaning of the provisions of this section. State v. Hord, 264 N.C. 149 , 141 S.E.2d 241, 1965 N.C. LEXIS 1137 (1965).

And Captain of Detectives. —

A captain of detectives of a police department of a city is an officer of such city within the meaning of this section. State v. McCall, 264 N.C. 165 , 141 S.E.2d 250, 1965 N.C. LEXIS 1142 (1965).

Magistrates Not Exempted. —

The legislature did not intend to exempt magistrates from indictment and criminal prosecution under this section when it included magistrates under the sanctions of G.S. 7A-173 and 7A-376. This section applies to misconduct in office unless another statute provides for the “indictment” of the officer, but neither G.S. 7A-173 nor 7A-376 provide for criminal charges to be brought against a magistrate who is guilty of misconduct in office. State v. Greer, 308 N.C. 515 , 302 S.E.2d 774, 1983 N.C. LEXIS 1216 (1983).

Proceedings of Forfeiture Under G.S. 1-515 . —

Forfeiture cannot be enforced by judgment of a motion from office as a part of the punishment where the clerk has been convicted of a misdemeanor under this section in willfully neglecting to discharge the duties of his office, but proceedings of forfeiture must be under G.S. 1-515 . State v. Norman, 82 N.C. 687 , 1880 N.C. LEXIS 333 (1880).

Sufficiency of Bill of Indictment. —

See State v. Hord, 264 N.C. 149 , 141 S.E.2d 241, 1965 N.C. LEXIS 1137 (1965); State v. Teeter, 264 N.C. 162 , 141 S.E.2d 253, 1965 N.C. LEXIS 1140 (1965); State v. Stogner, 264 N.C. 163 , 141 S.E.2d 248, 1965 N.C. LEXIS 1141 (1965); State v. McCall, 264 N.C. 165 , 141 S.E.2d 250, 1965 N.C. LEXIS 1142 (1965).

It is required that the indictment under this section sufficiently charge the offense of which such officer is accused; and where the action is against the superintendent of a State hospital for the insane, and the indictment charges that he removed or caused to be removed patients to his private farm and caused them to be worked thereon, without allegation of injury to the public or to the patients, or of personal gain to the defendant, the indictment fails to charge facts sufficient to constitute an offense under the statute, and defendant’s motion in arrest of judgment should be allowed. State v. Anderson, 196 N.C. 771 , 147 S.E. 305, 1929 N.C. LEXIS 103 (1929).

Two Theories Alleged in Single Count of Indictment. —

Where, in a single count of an indictment, the State alleged two factual underpinnings for, or factual theories of, conviction for a violation of this section it was not required to prove both; proof of only one factual theory was legally sufficient and at most placed the State at risk of failing to persuade the jury of defendant’s guilt. State v. Birdsong, 325 N.C. 411 , 384 S.E.2d 5 (1989).

Warrant Falling Short of Alleging Malfeasance in Office in Violation of Section. —

See Hawkins v. Reynolds, 236 N.C. 422 , 72 S.E.2d 874, 1952 N.C. LEXIS 572 (1952).

§ 14-231. Failing to make reports and discharge other duties.

If any State or county officer shall fail, neglect or refuse to make, file or publish any report, statement or other paper, or to deliver to his successor all books and other property belonging to his office, or to pay over or deliver to the proper person all moneys which come into his hands by virtue or color of his office, or to discharge any duty devolving upon him by virtue of his office and required of him by law, he shall be guilty of a Class 1 misdemeanor.

History. Rev., s. 3576; C.S., s. 4385; 1993, c. 539, s. 143; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to embezzlement by officers, see G.S. 14-92 .

As to failure of sheriff to make return, see G.S. 14-242 .

As to liability on official bonds, see G.S. 58-76-5 et seq.

CASE NOTES

Injurious Effects Not Necessary. —

The crime exists although no injurious effects result to any individual because of the misconduct of the officer. State v. Glasgow, 1 N.C. 176 (1800).

Honesty of Purpose. —

There may be neglect without corruption. Therefore honesty of purpose is not a full defense under this section. Turner v. McKee, 137 N.C. 251 , 49 S.E. 330, 1904 N.C. LEXIS 353 (1904).

Enforcing Unconstitutional Law. —

An officer is not liable for obeying the mandates of an unconstitutional statute. State v. Godwin, 123 N.C. 697 , 31 S.E. 221, 1898 N.C. LEXIS 125 (1898).

Manager of Elections. —

Any conduct of the manager of a primary election for county officials which interferes with the freedom or purity of the election is punishable at common law, and under this section. State v. Cole, 156 N.C. 618 , 72 S.E. 221, 1911 N.C. LEXIS 235 (1911).

§ 14-232. Swearing falsely to official reports.

If any clerk, sheriff, register of deeds, county commissioner, county treasurer, magistrate or other county officer shall willfully swear falsely to any report or statement required by law to be made or filed, concerning or touching the county, State or school revenue, he shall be guilty of a Class 1 misdemeanor.

History. 1874-5, c. 151, s. 4; 1876-7, c. 276, s. 4; Code, s. 731; Rev., s. 3605; C.S., s. 4386; 1973, c. 108, s. 6; 1993, c. 539, s. 144; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-233. Making of false report by bank examiners; accepting bribes.

If any bank examiner shall knowingly and willfully make any false or fraudulent report of the condition of any bank, which shall have been examined by him, with the intent to aid or abet the officers, owners, or agents of such bank in continuing to operate an insolvent bank, or if any such examiner shall keep or accept any bribe or gratuity given for the purpose of inducing him not to file any report of examination of any bank made by him, or shall neglect to make an examination of any bank by reason of having received or accepted any bribe or gratuity, he shall be punished as a Class I felon.

History. 1903, c. 275, s. 24; Rev., s. 3324; 1921, c. 4, s. 79; C.S., s. 4387; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1214; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Constitutionality. —

Because under this section an officer could consider speech that was not fighting words as disorderly or not peaceable, the section impermissibly criminalizes protected speech. Brooks v. North Carolina Dep't of Cor., 984 F. Supp. 940, 1997 U.S. Dist. LEXIS 18777 (E.D.N.C. 1997).

Because the petitioner’s comments did not fall within the narrowly defined class of fighting words so devoid of value as to be unprotected under the first amendment, the possibility existed that he was convicted for his speech and not his actions, and the danger that the jury based its verdict on protected activity required that the petitioner’s conviction be vacated. Brooks v. North Carolina Dep't of Cor., 984 F. Supp. 940, 1997 U.S. Dist. LEXIS 18777 (E.D.N.C. 1997).

§ 14-234. Public officers or employees benefiting from public contracts; exceptions.

    1. No public officer or employee who is involved in making or administering a contract on behalf of a public agency may derive a direct benefit from the contract except as provided in this section, or as otherwise allowed by law.
    2. A public officer or employee who will derive a direct benefit from a contract with the public agency he or she serves, but who is not involved in making or administering the contract, shall not attempt to influence any other person who is involved in making or administering the contract.
    3. No public officer or employee may solicit or receive any gift, favor, reward, service, or promise of reward, including a promise of future employment, in exchange for recommending, influencing, or attempting to influence the award of a contract by the public agency he or she serves.

      (a1) For purposes of this section:

      (1) As used in this section, the term “public officer” means an individual who is elected or appointed to serve or represent a public agency, other than an employee or independent contractor of a public agency.

      (2) A public officer or employee is involved in administering a contract if he or she oversees the performance of the contract or has authority to make decisions regarding the contract or to interpret the contract.

      (3) A public officer or employee is involved in making a contract if he or she participates in the development of specifications or terms or in the preparation or award of the contract. A public officer is also involved in making a contract if the board, commission, or other body of which he or she is a member takes action on the contract, whether or not the public officer actually participates in that action, unless the contract is approved under an exception to this section under which the public officer is allowed to benefit and is prohibited from voting.

    4. A public officer or employee derives a direct benefit from a contract if the person or his or her spouse: (i) has more than a ten percent (10%) ownership or other interest in an entity that is a party to the contract; (ii) derives any income or commission directly from the contract; or (iii) acquires property under the contract.
    5. A public officer or employee is not involved in making or administering a contract solely because of the performance of ministerial duties related to the contract.
  1. Subdivision (a)(1) of this section does not apply to any of the following:
    1. Any contract between a public agency and a bank, banking institution, savings and loan association, or with a public utility regulated under the provisions of Chapter 62 of the General Statutes.
    2. An interest in property conveyed by an officer or employee of a public agency under a judgment, including a consent judgment, entered by a superior court judge in a condemnation proceeding initiated by the public agency.
    3. Any employment relationship between a public agency and the spouse of a public officer of the agency.

      (3a) Any employment relationship between a local board of education and the spouse of the superintendent of that local school administrative unit, if that employment relationship has been approved by that board in an open session meeting pursuant to the board’s policy adopted as provided in G.S. 115C-47(17a).

    4. Remuneration from a public agency for services, facilities, or supplies furnished directly to needy individuals by a public officer or employee of the agency under any program of direct public assistance being rendered under the laws of this State or the United States to needy persons administered in whole or in part by the agency if: (i) the programs of public assistance to needy persons are open to general participation on a nondiscriminatory basis to the practitioners of any given profession, professions or occupation; (ii) neither the agency nor any of its employees or agents, have control over who, among licensed or qualified providers, shall be selected by the beneficiaries of the assistance; (iii) the remuneration for the services, facilities or supplies are in the same amount as would be paid to any other provider; and (iv) although the public officer or employee may participate in making determinations of eligibility of needy persons to receive the assistance, he or she takes no part in approving his or her own bill or claim for remuneration.

      (b1) No public officer who will derive a direct benefit from a contract entered into under subsection (b) of this section may deliberate or vote on the contract or attempt to influence any other person who is involved in making or administering the contract.

  2. through (d) Repealed by Session Laws 2001-409, s. 1, effective July 1, 2002. (d1) Subdivision (a)(1) of this section does not apply to (i) any elected official or person appointed to fill an elective office of a village, town, or city having a population of no more than 20,000 according to the most recent official federal census, (ii) any elected official or person appointed to fill an elective office of a county within which there is located no village, town, or city with a population of more than 20,000 according to the most recent official federal census, (iii) any elected official or person appointed to fill an elective office on a city board of education in a city having a population of no more than 20,000 according to the most recent official federal census, (iv) any elected official or person appointed to fill an elective office as a member of a county board of education in a county within which there is located no village, town or city with a population of more than 20,000 according to the most recent official federal census, (v) any physician, pharmacist, dentist, optometrist, veterinarian, or nurse appointed to a county social services board, local health board, or area mental health, developmental disabilities, and substance abuse board serving one or more counties within which there is located no village, town, or city with a population of more than 20,000 according to the most recent official federal census, and (vi) any member of the board of directors of a public hospital if all of the following apply:
    1. The undertaking or contract or series of undertakings or contracts between the village, town, city, county, county social services board, county or city board of education, local health board or area mental health, developmental disabilities, and substance abuse board, or public hospital and one of its officials is approved by specific resolution of the governing body adopted in an open and public meeting, and recorded in its minutes and the amount does not exceed twenty thousand dollars ($20,000) for medically related services and sixty thousand dollars ($60,000) for other goods or services within a 12-month period.
    2. The official entering into the contract with the unit or agency does not participate in any way or vote.
    3. The total annual amount of contracts with each official, shall be specifically noted in the audited annual financial statement of the village, town, city, or county.
    4. The governing board of any village, town, city, county, county social services board, county or city board of education, local health board, area mental health, developmental disabilities, and substance abuse board, or public hospital which contracts with any of the officials of their governmental unit shall post in a conspicuous place in its village, town, or city hall, or courthouse, as the case may be, a list of all such officials with whom such contracts have been made, briefly describing the subject matter of the undertakings or contracts and showing their total amounts; this list shall cover the preceding 12 months and shall be brought up-to-date at least quarterly.

      (d2) Subsection (d1) of this section does not apply to contracts that are subject to Article 8 of Chapter 143 of the General Statutes, Public Building Contracts.

      (d3) Subsection (a) of this section does not apply to an application for or the receipt of a grant under an exempted public program by a member of the Soil and Water Conservation Commission if the requirements of G.S. 139-4(e) are met, and does not apply to a district supervisor of a soil and water conservation district if the requirements of G.S. 139-8(b) are met. For purposes of this subsection, an exempted public program is any of the following:

      (1) The Agriculture Cost Share Program for Nonpoint Source Pollution Control created pursuant to Article 72 of Chapter 106 of the General Statutes.

      (2) The Community Conservation Assistance Program created pursuant to Article 73 of Chapter 106 of the General Statutes.

      (3) The Agricultural Water Resources Assistance Program created pursuant to Article 5 of Chapter 139 of the General Statutes.

      (4) The Streamflow Rehabilitation Assistance Program created pursuant to Article 6 of Chapter 139 of the General Statutes.”

      (d4) Subsection (a) of this section does not apply to an application for, or the receipt of a grant or other financial assistance from, the Tobacco Trust Fund created under Article 75 of Chapter 143 of the General Statutes by a member of the Tobacco Trust Fund Commission or an entity in which a member of the Commission has an interest provided that the requirements of G.S. 143-717(h) are met.

      (d5) This section does not apply to a public hospital subject to G.S. 131E-14.2 or a public hospital authority subject to G.S. 131E-21 .

      (d6) Repealed by Session Laws 2016-126, 4th Ex. Sess., s. 13, effective January 1, 2017.

      (e) Anyone violating this section shall be guilty of a Class 1 misdemeanor.

      (f) A contract entered into in violation of this section is void. A contract that is void under this section may continue in effect until an alternative can be arranged when: (i) immediate termination would result in harm to the public health or welfare, and (ii) the continuation is approved as provided in this subsection. A public agency that is a party to the contract may request approval to continue contracts under this subsection as follows:

      (1) Local governments, as defined in G.S. 159-7(15), public authorities, as defined in G.S. 159-7(10), local school administrative units, and community colleges may request approval from the chair of the Local Government Commission.

      (2) All other public agencies may request approval from the State Director of the Budget.Approval of continuation of contracts under this subsection shall be given for the minimum period necessary to protect the public health or welfare.

History. 1825, c. 1269, P.R; 1826, c. 29; R.C., c. 34, s. 38; Code, s. 1011; Rev., s. 3572; C.S., s. 4388; 1929, c. 19, s. 1; 1969, c. 1027; 1975, c. 409; 1977, cc. 240, 761; 1979, c. 720; 1981, c. 103, ss. 1, 2, 5; 1983, c. 544, ss. 1, 2; 1985, c. 190; 1987, c. 570; 1989, c. 231; 1991 (Reg. Sess., 1992), c. 1030, s. 5; 1993, c. 539, s. 145; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 519, s. 4; 2000-147, s. 6; 2001-409, s. 1; 2001-487, ss. 44(a), 44(b), 45; 2002-159, s. 28; 2006-78, s. 2; 2009-2, s. 2; 2009-226, s. 1; 2010-169, s. 2(a); 2011-145, ss. 13.22A(dd), 13.23(b); 2016-126, 4th Ex. Sess., s. 13; 2018-26, s. 1; 2021-117, s. 1(a); 2021-180, s. 5.9(l).

Local Modification.

Bladen: 1993 (Reg. Sess., 1994), c. 721, s. 3; Northhampton: 1973, c. 865; 1995, c. 260, s. 6; Pamlico: 1981 (Reg. Sess., 1982), c. 1198; 1977, 2nd Sess., c. 1152; Yadkin: 2001-31; city of Greensboro: 1951, c. 707, s. 3; city of New Bern: 1983, c. 364; 2016 c. 41, s. 5; city of Reidsville: 1983, c. 893; town of Elon College: 1985, c. 78; town of Roseboro: 2009-432 (expires July 31, 2010); town of Salemburg: 2007-20, s. 1; town of Tarboro: 1997-96.

Cross References.

As to liability of board of education members, see G.S. 115C-48 .

As to conflicts of interest within the Department of Transportation, see G.S. 136-14 .

Editor’s Note.

Session Laws 2000-147, s. 8(a)-(c), provides:

“(a) Interpretation of Act. — The foregoing sections of this act provide an additional and alternative method for the doing of the things authorized by the act, are supplemental and additional to powers conferred by other laws, and do not derogate any powers now existing.

“(b) References in this act to specific sections or Chapters of the General Statutes are intended to be references to those sections or Chapters as amended and as they may be amended from time to time by the General Assembly.

“(c) This act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect its purposes.”

Session Laws 2016-126, 4th Ex. Sess., s. 42, is a severability clause.

Session Laws 2021-117, s.1(b), made the amendments to subsection (d1) of this section by Session Laws 2021-117, s. 1(a), effective August 23, 2021, and applicable to contracts executed on or after that date.

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021’.”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2006-78, s. 2, effective July 10, 2006, substituted “Part 9 of Article 21 of Chapter 143 of the General Statutes or the Community Conservation Assistance Program created pursuant to Part 11 of Article 21 of Chapter 143 of the General Statutes” for “G.S. 143-215.74” in subsection (d3).

Session Laws 2009-2, s. 2, effective March 4, 2009, added subsection (d6).

Session Laws 2009-226, s. 1, effective October 1, 2009, substituted “twenty thousand dollars ($20,000)” for “twelve thousand five hundred dollars ($12,500)” and “forty thousand dollars ($40,000)” for “twenty-five thousand dollars ($25,000)” in subdivision (d1)(1).

Session Laws 2010-169, s. 2(a), effective December 1, 2010, and applicable to offenses committed on or after that date, in subdivision (a)(3), inserted “favor,” “service,” and “including a promise of future employment.”

Session Laws 2011-145, s. 13.23(b), effective July 1, 2011, in subsection (d3), inserted “or the Agricultural Water Resources Assistance Program created pursuant to Article 5 of Chapter 139 of the General Statutes” and made minor related changes.

Session Laws 2016-126, 4th Ex. Sess., s. 13, effective January 1, 2017, repealed subsection (d6) which read: “This section does not apply to employment contracts between the State Board of Education and its chief executive officer.”

Session Laws 2018-26, s. 1, effective June 22, 2018, added subdivision (b)(3a).

Session Laws 2021-117, s. 1(a), substituted “20,000” for “15,000” throughout the introductory language in subsection (d1); and substituted “sixty thousand dollars ($60,000)” for “forty thousand dollars ($40,000)” in subdivision (d1)(1). For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 5.9( l ), effective July 1, 2021, rewrote subsection (d3).

CASE NOTES

Public Policy of State. —

The General Assembly in adopting this section made the condemnation of the transactions embraced within its terms a part of the public policy of the State so as to remove from public officials the temptation to take advantage of their official positions to “feather their own nests” by letting to themselves or to firms or corporations in which they are interested contracts for services, materials, supplies, or the like. Lexington Insulation Co. v. Davidson County, 243 N.C. 252 , 90 S.E.2d 496, 1955 N.C. LEXIS 578 (1955).

Effect of Special Validating Act. —

Although municipal bonds were sold to a corporation controlled by the mayor, an act passed by the legislature expressly confirming and validating the sale removes all objections based upon the violation of the provisions of this section. Starmount Co. v. Ohio Sav. Bank & Trust Co., 55 F.2d 649, 1932 U.S. App. LEXIS 3781 (4th Cir. 1932).

Denial of Recovery on Quantum Meruit Basis. —

The courts not only will declare void and unenforceable any contract between a public official, or a board of which he is a member, and himself, or a company in which he is financially interested, whereby he stands to gain by the transaction, but it will also deny recovery on a quantum meruit basis. Lexington Insulation Co. v. Davidson County, 243 N.C. 252 , 90 S.E.2d 496, 1955 N.C. LEXIS 578 (1955).

Officer of Both City and Corporation. —

The prohibition of this section extends to an officer of a corporation in making contracts between the corporation and the city of which he is commissioner or alderman. State v. Williams, 153 N.C. 595 , 68 S.E. 900, 1910 N.C. LEXIS 134 (1910); Lexington Insulation Co. v. Davidson County, 243 N.C. 252 , 90 S.E.2d 496, 1955 N.C. LEXIS 578 (1955).

Contracts with city when an alderman is an employee of the other contracting party are not covered by the section. State v. Weddell, 153 N.C. 587 , 68 S.E. 897, 1910 N.C. LEXIS 132 (1910).

Sale to Corporation Organized by Advisor to Municipality. —

Under this statute a contract of sale does not become void because the purchasing corporation was organized through the efforts of a person who had a merely advisory relationship to a municipal corporation. Tonkins v. City of Greensboro, 276 F.2d 890, 1960 U.S. App. LEXIS 5142 (4th Cir. 1960).

Contracts for Benefit of County. —

A sheriff is not guilty of a misdemeanor where he purchases county claims at less than their value, but for the benefit of the county, at the instance of the county commissioners. State v. Garland, 134 N.C. 749 , 47 S.E. 426, 1904 N.C. LEXIS 153 (1904).

Service to Body of Which Officer Is a Member. —

A member of the board of county commissioners cannot recover for services rendered the board in inspecting a bridge. Davidson v. Guilford County, 152 N.C. 436 , 67 S.E. 918, 1910 N.C. LEXIS 296 (1910).

Purchase of Property from Company Owned by Wife. —

A member of the board of education of a county was not guilty under former G.S. 14-236 for voting as such member for the purchase of school buses from a company selling them owned by his wife, and in which he had no pecuniary interest and for which he worked upon a salary, when the sale was made by other agents of the company upon a commission basis. State v. Debnam, 196 N.C. 740 , 146 S.E. 857, 1929 N.C. LEXIS 93 (1929).

Condemnation of County Commissioner’s Land. —

In a suit seeking to halt the construction of a landfill, the district court properly dismissed plaintiffs’ State claim because G.S. 14-234 did not prohibit a county commissioner from profiting from the condemnation of his land. Franks v. Ross, 313 F.3d 184, 2002 U.S. App. LEXIS 24523 (4th Cir. 2002), dismissed in part, 293 F. Supp. 2d 599, 2003 U.S. Dist. LEXIS 21928 (E.D.N.C. 2003).

A county commissioner contracting with the county, through another, to repair county buildings, violated North Carolina’s conflict of interest law, G.S. 14-234(a), and had to return all sums he was paid in connection with this contract; evidence regarding the reasonable value of the work he performed pursuant to these contracts was irrelevant. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, 2004 N.C. App. LEXIS 252 (2004).

When a county commissioner violated North Carolina’s conflict of interest law, G.S. 14-234(a), by contracting with the county, through another, to repair county buildings, the other commissioners were not liable for the judgment entered against this commissioner because they did not enter into any contract with the county or receive any benefit or financial gain from the other commissioner’s improper contract. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, 2004 N.C. App. LEXIS 252 (2004).

Public Official Immunity Does Not Apply to Bar Claims. —

Because G.S. 14-234 (deriving a personal benefit from a contract made or administered on behalf of a public agency) did not contemplate recovery of compensation by an individual citizen from a public official as an individual, to the extent that plaintiffs sought relief other than monetary compensation under G.S. 14-234 (a)(1), public official immunity was not applicable to bar the claim. Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C. App. 581, 664 S.E.2d 8, 2008 N.C. App. LEXIS 1494 (2008).

Public Official Immunity Did Not Bar Claim for Duress. —

Airport authority member’s threatening demand for a discount, viewed in the light most favorable to the plaintiffs and drawing all reasonable inferences in plaintiffs’ favor, was intentional and wrongful, and therefore a malicious act. Because public official immunity (POI) did not apply to claims based on malicious acts, POI did not bar plaintiffs’ G.S. 14-234 claim against the member for duress. Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C. App. 581, 664 S.E.2d 8, 2008 N.C. App. LEXIS 1494 (2008).

OPINIONS OF ATTORNEY GENERAL

Deposit of Funds by County ABC Board in Bank Whose President Is Chairman of Such Board Not a Violation. — See opinion of Attorney General to Mr. Cameron S. Weeks, 40 N.C. Op. Att'y Gen. 559 (1969).

Mayor May Not Be Hired as Town Superintendent with Separate Salary. — See opinion of Attorney General to Mr. Bobby F. Jones, Elm City Town Attorney, 40 N.C. Op. Att'y Gen. 563 (1969).

Pembroke State University May Not Employ Member of Its Board of Trustees. — See opinion of Attorney General to Mr. Terry R. Hutchins, 40 N.C. Op. Att'y Gen. 566 (1969).

Inapplicable When Company by Which Local School Board Member Is Employed Contracts with State Board of Education. — See opinion of Attorney General to Mr. Bobby R. Stott, 40 N.C. Op. Att'y Gen. 217 (1970).

Officers and Employees of City Selling Property Not Prohibited from Buying at Sale. — See opinion of Attorney General to Mr. E. Murray Tate, Jr., 41 N.C. Op. Att'y Gen. 276 (1971).

When County Commissioners Who Run Grocery Stores May Authorize Food Stamp Program. — County commissioners who run grocery stores may authorize food stamp program if the specifics from the exemption from this section for public assistance programs are complied with. Opinion of Attorney General to Mr. Clifford L. Moore, Jr., 41 N.C. Op. Att'y Gen. 530 (1971).

Member of County Board of Elections May Not Serve as Executive Secretary of That Board. — See opinion of Attorney General to Honorable Ed McKnight, N.C. House of Representatives, 41 N.C. Op. Att'y Gen. 577 (1971).

Services Donated as County Employee Do Not Create a Conflict of Interest Where the Same Person Is a County Commissioner. — See opinion of Attorney General to Honorable Charles H. Taylor, N.C. General Assembly, 41 N.C. Op. Att'y Gen. 765 (1972).

When County Director of Social Services May Serve on Board of Nonprofit Corporation Administering CETA Funds. — A conflict of interest does not arise if a county director of social services serves as a member of the board of directors of a nonprofit corporation organized for the purpose of administering federal funds under the Comprehensive Employment and Training Act (29 USC, Ch. 17; Pub. L. 93-203 (1973); Pub. L. 95-524 (1978)), when: (a) The nonprofit corporation will administer federal funds through community programs to which the county department of social services may refer social services clients; (b) The county department of social services is a potential recipient, through the nonprofit corporation, of federal funds, of services by employees of the nonprofit corporation and of training of social service employees; (c) The director, as a member of the board of the nonprofit corporation, will approve, or establish policy for entering into, contracts, including contracts with the county department of social services; and (d) Neither the county director of social services nor any member of his immediate family will realize any direct or indirect benefits by reason of any contractual or other relationship between the county department of social services and the nonprofit corporation. See opinion of Attorney General to Robert H. Ward, Director, Division of Social Services, Dep’t of Human Resources and William W. Ivey, County Att’y for Randolph County, 49 N.C. Op. Att'y Gen. 102 (1980).

When Person May Be Member of Two Nonprofit Corporations. — A conflict of interest does not arise if an individual, who is not a public official, serves as a member of the board of directors of a nonprofit corporation organized for the purpose of administering federal funds under CETA and at the same time serves as a member of the board of directors of another nonprofit corporation organized for the purpose of administering programs for the aging (Ch. 143B, Art. 3, Part 14; 42 USC, Ch. 35; Pub. L. 89-73, as amended), when the circumstances and relationships between the corporations will be similar to those required for directors of social services serving on board of nonprofit corporation administering CETA funds. See opinion of Attorney General to Robert H. Ward, Director, Div. of Social Services, Dep’t of Human Resources and William W. Ivey, County Att’y for Randolph County, 49 N.C. Op. Att'y Gen. 102 (1980).

This section does prohibit a person from serving both on the Hyde County Board of Health and the Hyde Rural Health Corporation Board of Directors. See opinion of Attorney General to Cliff Swindell, County Manager, Hyde County, 50 N.C. Op. Att'y Gen. 12 (1980).

A prohibited conflict of interest may occur when a funeral home in which the chairman of the county board of social services holds a pecuniary interest enters into a contract with the county department of social services to provide funeral and burial services for a ward or juvenile under the jurisdiction or custody of the county department of social services. See opinion of Attorney General to Timothy W. Howard, Attorney for Sampson County Department of Social Services, 49 N.C. Op. Att'y Gen. 108 (1980).

Trustees of New Hanover Memorial Hospital, Inc., are subject to the provisions of this section. See opinion of Attorney General to Mr. A. Dumay Gorham, Jr., Attorney for New Hanover Memorial Hospital, Inc., 52 N.C. Op. Att'y Gen. 49 (1982).

A trustee’s ownership of stock in a company which does business with the hospital violates this section. See opinion of Attorney General to Mr. A. Dumay Gorham, Jr., Attorney for New Hanover Memorial Hospital, Inc., 52 N.C. Op. Att'y Gen. 49 (1982).

Telephone Membership Corporation President. — A conflict of interest under this section would not arise from the President of the Board of Directors of a telephone membership corporation serving on the Board of the Rural Electrification Authority. See opinion of Attorney General to Mr. Aaron A. Hathcock, Administrator, Rural Electrification Authority, 52 N.C. Op. Att'y Gen. 107 (1983).

Current Division of Mental Health, Mental Retardation (now Developmental Disabilities) and Substance Abuse Services employees can also serve as members of the Commission of Mental Health, Mental Retardation (now Developmental Disabilities) and Substance Abuse Services. See opinion of Attorney General to Ms. Sarah T. Morrow, M.D., M.P.H., Secretary, Department of Human Resources, 52 N.C. Op. Att'y Gen. 102 (1983).

This section does not prohibit members of the Trend Community Mental Health Services from serving as members of the Board of Directors of Trend Foundation, Incorporated. See opinion of Attorney General to Mr. James F. Creekman, Attorney for Trend Community Mental Health Services, 53 N.C. Op. Att'y Gen. 2 (1983).

A conflict of interest may exist, within the purview of subsection (a) of this section, when an Authority member, the president of a public relations firm, enters into a contract with another company providing public relations services to the airport. See opinion of Attorney General to Mr. Victor W. Buchanan, Attorney for the Asheville Regional Airport Authority, 57 N.C. Op. Att'y Gen. 63 (1987).

Applicability of Exemption in Subsection (d1). — The exemption of subsection (d1) of this section, which was enacted in 1979 and exempts from the prohibition against self-dealing in subsection (a) certain contracts between public boards and their members in counties with no town with a population of more than 7,500 (now 15,000), only applies to an “elected official or person appointed to fill an elective office.” It does not apply to persons appointed to an appointive office, such as technical college trustee. See opinion of Attorney General to Mr. Garrett Dixon Baily, Attorney for Mayland Technical College, 55 N.C. Op. Att'y Gen. 28 (1985).

Board of trustees of a technical college may not employ one of its members as a part-time instructor. See opinion of Attorney General to Mr. Garrett Dixon Baily, Attorney for Mayland Technical College, 55 N.C. Op. Att'y Gen. 28 (1985).

Regarding a possible conflict of interest which could arise between an airport authority and two members of its board of directors if the authority decides to refund some of its outstanding bonds, which would likely involve entering into a contract with a financial institution to underwrite the issuance of such bonds, see opinion of Attorney General to William Owen Cooke, Cooke & Cooke, Attorneys At Law, 1999 N.C. Op. Att'y Gen. 20 (6/24/99).

Simultaneous Membership in County Partnership for Children and County Interagency Transportation Corporation Was Permitted. — Members of a county partnership for children, who were also members of the board of directors of the county interagency transportation corporation, did not violate G.S. 14-234 by remaining on the partnership board and participating in a vote to award a grant to the interagency transportation corporation, where one of the individuals who sat on both boards was the county administrator and the other was chairman of the interagency transportation corporation, as no personal benefits accrued to those individuals. See opinion of Attorney General to Kipling Godwin, Chairman, Columbus County Partnership for Children, 1999 N.C. AG LEXIS 36 (8/27/99).

Regional Medical Center May Make Grant to Nonprofit Corporation Where Trustees Are on Board of Corporation. — There is no violation of G.S. 14-234 where a regional medical center makes a grant to a nonprofit corporation, even if one member of the board of trustees of the regional medical center is a member of the board of directors of the nonprofit corporation and another is executive director of the nonprofit corporation, assuming that neither of the trustees will personally benefit, either directly or indirectly, from the grant to the nonprofit corporation. See opinion of Attorney General to A. Dumay Gorham, Jr., Marshall, Williams & Gorham, L.L.P., 1999 N.C. AG LEXIS 42 (9/1/99).

Member of General Assembly with Financial Interest in Company. — A member of the General Assembly likely would not violate G.S. 14-234 if a company in which he has a financial interest contracts with governmental agencies in another state, a private company, or a political subdivision of the State because in none of these instances is the power to contract joined with private economic interests. See opinion of Attorney General to Burley B. Mitchell, Jr., Womble Carlyle Sandridge & Rice, 2001 N.C. AG LEXIS 2 (2/16/2001).

§ 14-234.1. Misuse of confidential information.

  1. It is unlawful for any officer or employee of the State or an officer or an employee of any of its political subdivisions, in contemplation of official action by himself or by a governmental unit with which he is associated, or in reliance on information which was made known to him in his official capacity and which has not been made public, to commit any of the following acts:
    1. Acquire a pecuniary interest in any property, transaction, or enterprise or gain any pecuniary benefit which may be affected by such information or official action; or
    2. Intentionally aid another to do any of the above acts.
  2. Violation of this section is a Class 1 misdemeanor.

History. 1987, c. 616, s. 1; 1993, c. 539, s. 146; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Section Relevant in Constructive Fraud Claim. —

Where plaintiff had to establish that the defendant had a fiduciary relationship with her and that he breached that duty, in order to sustain her burden as to a claim of constructive fraud, this section was relevant as evidence of the corrupt and possible criminal nature of the acts allegedly perpetrated. Leftwich v. Gaines, 134 N.C. App. 502, 521 S.E.2d 717, 1999 N.C. App. LEXIS 893 (1999).

§ 14-234.2. Public officers or employees financially benefiting from public position.

  1. No elected officer of a political subdivision of this State shall solicit or receive personal financial gain from the political subdivision of this State for which that elected officer serves by means of intimidation, undue influence, or misuse of the employees of that political subdivision of this State.
  2. This section shall not apply to financial gain received from a political subdivision of this State for acting in the elected official’s official capacity or financial gain received with the approval of the governing board of the political subdivision of this State for which that elected officer serves.
  3. Violation of this section shall be a Class H felony.”

History. 2021-191, s. 3(a).

Editor's Note.

Session Laws 2021-191, s. 3(b), made this section, as added by Session Laws 2021-191, s. 3(a), effective January 1, 2022, and applicable to offenses committed on or after that date.

§ 14-234.3. Local public officials participating in contracts benefiting nonprofits with which associated.

  1. No public official shall knowingly participate in making or administering a contract, including the award of money in the form of a grant, loan, or other appropriation, with any nonprofit with which that public official is associated. The public official shall record his or her recusal with the clerk to the board, and once recorded, the political subdivision of this State may enter into or administer the contract.
  2. Anyone knowingly violating this section shall be guilty of a Class 1 misdemeanor. The exceptions listed in G.S. 14-234(b) and (d1) through (d5) shall apply to this section.
  3. A contract entered into in violation of this section is void. A contract that is void under this section may continue in effect until an alternative can be arranged when (i) an immediate termination would result in harm to the public health or welfare and (ii) the continuation is approved as provided in this subsection. A political subdivision of this State that is a party to the contract may request approval from the chair of the Local Government Commission to continue contracts under this subsection.
  4. For purposes of this section, the following definitions shall apply:
    1. Nonprofit with which that public official is associated. –  A nonprofit corporation, organization, or association, incorporated or otherwise, that is organized or operating in the State primarily for religious, charitable, scientific, literary, public health and safety, or educational purposes and of which the public official is a director, officer, or governing board member, excluding any board, entity, or other organization created by this State or by any political subdivision of this State.
    2. Participate in making or administering a contract. –  Any of the following actions by a public official:
      1. Deliberating or voting on the contract.
      2. Attempting to influence any other person who is deliberating or voting on the contract.
      3. Soliciting or receiving any gift, favor, reward, service, or promise of reward, including a promise of future employment, in exchange for recommending, influencing, or attempting to influence the award of a contract by the political subdivision of the State with the not-for-profit with which that public official is associated.
    3. Public official. –  Any individual who is elected or appointed to serve on a governing board of a political subdivision of this State. The term shall not include an employee or independent contractor of that political subdivision of this State.”

History. 2021-191, s. 4(a).

Editor's Note.

Session Laws 2021-191, s. 4(b), made this section, as added by Session Laws 2021-191, s. 4(a), effective January 1, 2022, and applicable to offenses committed on or after that date.

§ 14-235. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(11).

§§ 14-236, 14-237. [Repealed]

Repealed by Session Laws 2001-409, ss. 2, 3, effective July 1, 2002.

Cross References.

For present provisions pertaining to public officers or employees benefiting from public contracts, see G.S. 14-234 .

Editor’s Note.

Session Laws 2001-409, s. 10, provides that the repeal of this section is effective July 1, 2002, and applies to actions taken and offenses committed on or after that date. Prosecutions for offenses committed before the effective dates of the provisions of the act are not abated or affected by the act, and the statutes that would be applicable but for the act remain applicable to those prosecutions.

§ 14-238. Soliciting during school hours without permission of school head.

No person, agent, representative or salesman shall solicit or attempt to sell or explain any article of property or proposition to any teacher or pupil of any public school on the school grounds or during the school day without having first secured the written permission and consent of the superintendent, principal or person actually in charge of the school and responsible for it.

Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1933, c. 220; 1969, c. 1224, s. 8; 1993, c. 539, s. 149; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-239. Allowing prisoners to escape; punishment. [Effective until January 1, 2023]

If any sheriff, deputy sheriff, jailer, or other custodial personnel shall willfully or wantonly allow the escape of any person committed to that person’s custody who is (i) a person charged with a crime, (ii) a person sentenced by the court upon conviction of any offense, or (iii) committed to the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, that person shall be guilty of a Class 1 misdemeanor. No prosecution shall be brought against any such officer pursuant to this section by reason of a prisoner being allowed to participate pursuant to court order in any work release, work study, community service, or other lawful program, or by reason of any such prisoner failing to return from participation in any such program.

History. 1791, c. 343, s. 1, P.R; R.C., c. 34, s. 35; Code, s. 1022; 1905, c. 350; Rev., s. 3577; C.S., s. 4393; 1973, c. 108, s. 7; 1983, c. 694; 1993, c. 539, s. 150; 1994, Ex. Sess., c. 24, s. 14(c); 2003-297, s. 1; 2011-145, s. 19.1(l); 2017-186, s. 2(cc).

Cross References.

As to permitting escape of or maltreating hired convicts, see G.S. 14-257 .

Effect of Amendments.

Session Laws 2011-145, s. 19.1(l), effective January 1, 2012, substituted “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”

Session Laws 2017-186, s. 2(cc), effective December 1, 2017, substituted “Juvenile Justice Section of the Division of Adult Correction and” for “Division of” in clause (iii) of the first sentence.

CASE NOTES

Editor’s Note. —

The cases annotated below were decided under prior law.

This is a common-law offense. State v. Ritchie, 107 N.C. 857 , 12 S.E. 251, 1890 N.C. LEXIS 159 (1890).

The statute contemplates two offenses. —

negligently permitting or willfully promoting the escape — but charging negligence alone will suffice. State v. McLain, 104 N.C. 894 , 10 S.E. 518, 1889 N.C. LEXIS 297 (1889).

The section changes the ordinary rule of the burden of proof by shifting such burden to the defendant. State v. Hunter, 94 N.C. 829 , 1886 N.C. LEXIS 147 (1886); State v. Lewis, 113 N.C. 622 , 18 S.E. 69, 1893 N.C. LEXIS 132 (1893).

This section provides an example of specific language used by the legislature when it intended to shift the burden of proof to a defendant. State v. Cooke, 270 N.C. 644 , 155 S.E.2d 165, 1967 N.C. LEXIS 1398 (1967).

Jury Question. —

The question of good faith and diligence of the officer is for the jury. State v. Blackley, 131 N.C. 726 , 42 S.E. 569, 1902 N.C. LEXIS 352 (1902).

Right to Kill to Prevent Escape. —

The guard has no authority to kill one convicted of a misdemeanor while fleeing to escape, without his offering resistance or showing any menace or show of force in doing so, or, anything that would suggest danger to the person of the guard. Holloway v. Moser, 193 N.C. 185 , 136 S.E. 375, 1927 N.C. LEXIS 299 (1927), disapproved, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985).

Where the escape is due to the negligence of an assistant the only question presented is whether the defendant has exercised due care in his selection. State v. Lewis, 113 N.C. 622 , 18 S.E. 69, 1893 N.C. LEXIS 132 (1893).

§ 14-239. Allowing prisoners to escape; punishment. [Effective January 1, 2023]

If any sheriff, deputy sheriff, jailer, or other custodial personnel shall willfully or wantonly allow the escape of any person committed to that person’s custody who is (i) a person charged with a crime, (ii) a person sentenced by the court upon conviction of any offense, or (iii) committed to the Division of Juvenile Justice of the Department of Public Safety, that person shall be guilty of a Class 1 misdemeanor. No prosecution shall be brought against any such officer pursuant to this section by reason of a prisoner being allowed to participate pursuant to court order in any work release, work study, community service, or other lawful program, or by reason of any such prisoner failing to return from participation in any such program.

History. 1791, c. 343, s. 1, P.R; R.C., c. 34, s. 35; Code, s. 1022; 1905, c. 350; Rev., s. 3577; C.S., s. 4393; 1973, c. 108, s. 7; 1983, c. 694; 1993, c. 539, s. 150; 1994, Ex. Sess., c. 24, s. 14(c); 2003-297, s. 1; 2011-145, s. 19.1(l); 2017-186, s. 2(cc); 2021-180, s. 19C.9(z).

Cross References.

As to permitting escape of or maltreating hired convicts, see G.S. 14-257 .

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(l), effective January 1, 2012, substituted “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”

Session Laws 2017-186, s. 2(cc), effective December 1, 2017, substituted “Juvenile Justice Section of the Division of Adult Correction and” for “Division of” in clause (iii) of the first sentence.

Session Laws 2021-180, s. 19C.9(z), substituted “Division of Juvenile Justice” for “Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice.” For effective date and applicability, see editor's note.

CASE NOTES

Editor’s Note. —

The cases annotated below were decided under prior law.

This is a common-law offense. State v. Ritchie, 107 N.C. 857 , 12 S.E. 251, 1890 N.C. LEXIS 159 (1890).

The statute contemplates two offenses. —

negligently permitting or willfully promoting the escape — but charging negligence alone will suffice. State v. McLain, 104 N.C. 894 , 10 S.E. 518, 1889 N.C. LEXIS 297 (1889).

The section changes the ordinary rule of the burden of proof by shifting such burden to the defendant. State v. Hunter, 94 N.C. 829 , 1886 N.C. LEXIS 147 (1886); State v. Lewis, 113 N.C. 622 , 18 S.E. 69, 1893 N.C. LEXIS 132 (1893).

This section provides an example of specific language used by the legislature when it intended to shift the burden of proof to a defendant. State v. Cooke, 270 N.C. 644 , 155 S.E.2d 165, 1967 N.C. LEXIS 1398 (1967).

Jury Question. —

The question of good faith and diligence of the officer is for the jury. State v. Blackley, 131 N.C. 726 , 42 S.E. 569, 1902 N.C. LEXIS 352 (1902).

Right to Kill to Prevent Escape. —

The guard has no authority to kill one convicted of a misdemeanor while fleeing to escape, without his offering resistance or showing any menace or show of force in doing so, or, anything that would suggest danger to the person of the guard. Holloway v. Moser, 193 N.C. 185 , 136 S.E. 375, 1927 N.C. LEXIS 299 (1927), disapproved, Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1, 1985 U.S. LEXIS 195 (1985).

Where the escape is due to the negligence of an assistant the only question presented is whether the defendant has exercised due care in his selection. State v. Lewis, 113 N.C. 622 , 18 S.E. 69, 1893 N.C. LEXIS 132 (1893).

§ 14-240. District attorney to prosecute officer for escape.

It shall be the duty of district attorneys, when they shall be informed or have knowledge of any felon, or person otherwise charged with any crime or offense against the State, having within their respective districts escaped out of the custody of any sheriff, deputy sheriff, coroner, or jailer, to take the necessary measures to prosecute such sheriff or other officer so offending.

History. 1791, c. 343, s. 2, P.R; R.C., c. 34, s. 36; Code, s. 1023; Rev., s. 2822; C.S., s. 4394; 1973, c. 47, s. 2; c. 108, s. 8.

§ 14-241. Disposing of public documents or refusing to deliver them over to successor.

It shall be the duty of the clerk of the superior court of each county, and every other person to whom the acts of the General Assembly, appellate division reports or other public documents are transmitted or deposited for the use of the county or the State, to keep the same safely in their respective offices; and if any such person having the custody of such books and documents, for the uses aforesaid, shall negligently and willfully dispose of the same, by sale or otherwise, or refuse to deliver over the same to his successor in office, he shall be guilty of a Class 1 misdemeanor. If the clerk of superior court or other custodian determines that the acts of the General Assembly or the appellate division reports no longer are necessary to the effective operation of his or her office, the clerk or other custodian may transfer these materials to the proper recipient for disposition as surplus State property or as otherwise directed by the State Surplus Property Agency of the Department of Administration.

History. 1881, c. 151; Code, s. 1073; Rev., s. 3598; C.S., s. 4395; 1969, c. 44, s. 26; 1993, c. 539, s. 151; 1994, Ex. Sess., c. 24, s. 14(c); 2015-40, s. 2.

Effect of Amendments.

Session Laws 2015-40, s. 2, effective July 1, 2015, added the last sentence.

§ 14-242. Failing to return process or making false return.

If any sheriff, deputy, or other officer, whether State or municipal, or any person who presumes to act as any such officer, not being by law authorized so to do, willfully refuses to return any precept, notice or process, to him tendered or delivered, which it is his duty to execute, or willfully makes a false return thereon, the person who willfully refused to make the return or willfully made the false return shall be guilty of a Class 1 misdemeanor.

History. 1818, c. 980, s. 3, P.R; 1827, c. 20, s. 4; R.C., c. 34, s. 118; Code, s. 1112; Rev., s. 3604; C.S., s. 4396; 1989, c. 462; 1993, c. 539, s. 152; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to duty to execute process and penalty for false return, see G.S. 162-14 .

Legal Periodicals.

For survey of 1977 law on torts, see 56 N.C.L. Rev. 1136 (1978).

CASE NOTES

Civil Process. —

This section applies to failure to return civil as well as criminal process. State v. Berry, 169 N.C. 371 , 85 S.E. 387, 1915 N.C. LEXIS 222 (1915); Piedmont Mfg. Co. v. Buxton, 105 N.C. 74 , 11 S.E. 264, 1890 N.C. LEXIS 201 (1890).

Process That Could Not Be Served. —

An officer is not subject to the penalty under this section for declining to receive process which, at the time it was tendered, he could not have executed. Fentress v. Brown, 61 N.C. 373 , 1867 N.C. LEXIS 140 (1867).

§ 14-243. Failing to surrender tax list for inspection and correction.

If any tax collector shall refuse or fail to surrender his tax list for inspection or correction upon demand by the authorities imposing the tax, or their successors in office, he shall be guilty of a Class 1 misdemeanor.

History. 1870-1, c. 177, s. 2; Code, s. 3823; Rev., s. 3788; C.S., s. 4397; 1983, c. 670, s. 23; 1993, c. 539, s. 153; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-244. Failing to file report of fines or penalties.

If any officer who is by law required to file any report or statement of fines or penalties with the county board of education shall fail so to do at or before the time fixed by law for the filing of such report, he shall be guilty of a Class 1 misdemeanor.

History. 1901, c. 4, s. 62; Rev., s. 3579; C.S., s. 4398; 1993, c. 539, s. 154; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-245. [Repealed]

Repealed by Session Laws 1973, c. 108, s. 9.

§ 14-246. Failure of ex-magistrate to turn over books, papers and money.

If any magistrate, on expiration of his term of office, or if any personal representative of a deceased magistrate shall, after demand upon him by the clerk of the superior court, willfully fail and refuse to deliver to the clerk of the superior court all dockets, all law and other books, all money, and all official papers which came into his hands by virtue or color of his office, he shall be guilty of a Class 1 misdemeanor.

History. Code, ss. 828, 829; 1885, c. 402; Rev., s. 3578; C.S., s. 4399; 1973, c. 108, s. 10; 1993, c. 539, s. 155; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-247. Private use of publicly owned vehicle.

  1. It shall be unlawful for any officer, agent or employee of the State of North Carolina, or of any county or of any institution or agency of the State, to use for any private purpose whatsoever any motor vehicle of any type or description whatsoever belonging to the State, or to any county, or to any institution or agency of the State. It is not a private purpose to drive a permanently assigned state-owned motor vehicle between one’s official work station and one’s home as provided in G.S. 143-341(8) i7a.It shall be unlawful for any person to violate a rule or regulation adopted by the Department of Administration and approved by the Governor concerning the control of all state-owned passenger motor vehicles as provided in G.S. 143-341(8) i with the intent to defraud the State of North Carolina.
  2. Notwithstanding the provisions of subsection (a) of this section, county employees may carpool with each other in county vehicles as lawfully permitted by the county.

History. 1925, c. 239, s. 1; 1981, c. 859, ss. 52, 53; 1983, c. 717, s. 75.

Local Modification.

Mecklenburg: 1971, c. 302; 2007-136, s. 1; city of Charlotte: 1971, c. 220; town of Matthews: 1995, c. 176, s. 1.

Cross References.

As to the use of State vehicles by North Carolina Amateur Sports and Special Olympics World Summer Games Organizing Committee, see G.S. 143-299.3 .

CASE NOTES

Elements of Offense. —

The elements of the offense created by this section and G.S. 14-252 are (1), the use of a vehicle belonging to the State or one of the political subdivisions named in the statute (2), by a public official or employer answering to the statutory description and (3), for a private purpose. A warrant which fails to charge that the use of a police car by a policeman of a municipality was for a private purpose is insufficient to charge the offense. Hawkins v. Reynolds, 236 N.C. 422 , 72 S.E.2d 874, 1952 N.C. LEXIS 572 (1952).

Statement of Charges Held Sufficient. —

A misdemeanor statement of charges which, when all surplusage was excluded from consideration, asserted that the defendant was a State employee, that she directed her subordinate to pick up a birthday cake and deliver it to her home, and that she did so with knowledge that her private purpose would be accomplished through the use of a state-owned motor vehicle, was sufficient to support a conviction of unlawful private use of a publicly owned vehicle. State v. Lilly, 75 N.C. App. 173, 330 S.E.2d 30, 1985 N.C. App. LEXIS 3592 (1985).

It was error to instruct the jury that defendant would be guilty if she allowed the use of a state-owned vehicle for a private purpose. Merely having knowledge of the commission of a criminal offense, and doing nothing to prevent its commission, does not render one guilty. State v. Lilly, 75 N.C. App. 173, 330 S.E.2d 30, 1985 N.C. App. LEXIS 3592 (1985).

§ 14-248. Obtaining repairs and supplies for private vehicle at expense of State.

It shall be unlawful for any officer, agent or employee to have any privately owned motor vehicle repaired at any garage belonging to the State or to any county, or any institution or agency of the State, or to use any tires, oils, gasoline or other accessories purchased by the State, or any county, or any institution or agency of the State, in or on any such private car.

History. 1925, c. 239, s. 2.

CASE NOTES

Violation of this section does not require an intent to do something in violation of the law. State v. Anderson, 88 N.C. App. 545, 364 S.E.2d 163, 1988 N.C. App. LEXIS 49 (1988).

This section contains no language setting forth any specific level of intent as an element of the crime. State v. Anderson, 88 N.C. App. 545, 364 S.E.2d 163, 1988 N.C. App. LEXIS 49 (1988).

A lack of specific criminal intent is not a valid defense under this section. State v. Anderson, 88 N.C. App. 545, 364 S.E.2d 163, 1988 N.C. App. LEXIS 49 (1988).

Evidence Held Sufficient. —

Uncontroverted evidence in the record that defendant, while an employee of Craven County, used tires and rims purchased by the county on his personal vehicle was sufficient to support a guilty verdict under this section. State v. Anderson, 88 N.C. App. 545, 364 S.E.2d 163, 1988 N.C. App. LEXIS 49 (1988).

§ 14-249. [Repealed]

Repealed by Session Laws 1981, c. 268, s. 1.

Cross References.

As to authority of the Secretary of Administration to make rules and regulations prescribing the manner in which passenger vehicles shall be purchased, see G.S. 143-60(6).

§ 14-250. [Repealed]

Repealed by Session Laws 2001-424, s. 6.14(d), effective September 26, 2001.

Cross References.

For requirements regarding marking and issuance of license plates for publicly owned vehicles, see G.S. 20-39.1 .

§ 14-251. Violation made misdemeanor.

Any person, firm or corporation violating any of the provisions of G.S. 14-247 to 14-250 shall be guilty of a Class 2 misdemeanor. Nothing in G.S. 14-247 through 14-251 shall apply to the purchase, use or upkeep or expense account of the car for the executive mansion and the Governor.

History. 1925, c. 239, s. 5; 1969, c. 1224, s. 16; 1993, c. 539, s. 156; 1994, Ex. Sess., c. 24, s. 14(c).

Editor’s Note.

Section 14-250 referred to in the above G.S. 14-251 was repealed by Session Laws 2001-424, s. 6.14(d).

§ 14-252. Five preceding sections applicable to cities and towns.

General Statutes 14-247 through 14-251 in every respect shall also apply to cities and incorporated towns.

History. 1931, c. 31.

Local Modification.

City of Charlotte: 1971, c. 220.

CASE NOTES

Elements of Offense. —

The elements of the offense created by G.S. 14-247 and this section are (1) the use of a vehicle belonging to the State or one of the political subdivisions named in the statute (2) by a public official or employer answering to the statutory description (3) for a private purpose. A warrant which fails to charge that the use of a police car by a policeman of a municipality was for a private purpose is insufficient to charge the offense. Hawkins v. Reynolds, 236 N.C. 422 , 72 S.E.2d 874, 1952 N.C. LEXIS 572 (1952).

Article 32. Misconduct in Private Office.

§ 14-253. Failure of certain railroad officers to account with successors.

If the president and directors of any railroad company, and any person acting under them, shall, upon demand, fail or refuse to account with the president and directors elected or appointed to succeed them, and to transfer to them forthwith all the money, books, papers, choses in action, property and effects of every kind and description belonging to such company, they shall be guilty of a Class I felony. The Governor is hereby authorized, at the request of the president, directors and other officers of any railroad company, to make requisition upon the governor of any other state for the apprehension of any such president failing to comply with this section.

History. 1870-1, c. 72, ss. 1-3; Code, ss. 2001, 2002; Rev., s. 3760; C.S., s. 4400; 1993 c. 539, ss. 157, 1215; 1993 (Reg. Sess., 1994), c. 767, s. 20.

CASE NOTES

Not Applicable to Tax Bond. —

As this section has reference only to money, books, choses, etc., an indictment cannot be sustained against a former president of a railroad, for refusing to transfer to his successor in office certain special tax bonds. State v. Jones, 67 N.C. 210 , 67 N.C. 211 , 1872 N.C. LEXIS 213 (1872).

§ 14-254. Malfeasance of corporation officers and agents.

  1. If any president, director, cashier, teller, clerk or agent of any corporation shall embezzle, abstract or willfully misapply any of the moneys, funds or credits of the corporation, or shall, without authority from the directors, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, assign any note, bond, draft, bill of exchange, mortgage, judgment or decree, or make any false entry in any book, report or statement of the corporation with the intent in either case to injure or defraud or to deceive any person, or if any person shall aid and abet in the doing of any of these things, he shall be punished as a Class H felon.
  2. For purposes of this section, “person” means a natural person, association, consortium, corporation, body politic, partnership, or other group, entity, or organization.

History. 1903, c. 275, s. 15; Rev., s. 3325; C.S., s. 4401; 1977, c. 809, ss. 1, 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1216; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For survey of 1977 law on business associations, see 56 N.C.L. Rev. 939 (1977).

CASE NOTES

This section applies only to agents and officers of a corporation. State v. Kornegay, 313 N.C. 1 , 326 S.E.2d 881, 1985 N.C. LEXIS 1511 (1985).

Crime of Embezzlement Compared. —

A defendant charged with embezzlement (see G.S. 14-90 ) must have intended to defraud his principal. By contrast, a defendant violates this section if he does any of the acts prohibited by the statute with an intent to defraud or deceive any person. State v. Kornegay, 313 N.C. 1 , 326 S.E.2d 881, 1985 N.C. LEXIS 1511 (1985).

A defendant charged with embezzlement must have received the property he embezzled in the course of his employment and by virtue of his fiduciary relationship with his principal. Under this section it is sufficient to show that a defendant as an agent or officer of a corporation abstracted or misapplied corporate funds. It need not be shown that he received such funds in the course of his employment. State v. Kornegay, 313 N.C. 1 , 326 S.E.2d 881, 1985 N.C. LEXIS 1511 (1985).

Indictments Quashed. —

Indictments charging the defendant with corporate malfeasance in violation of this section must be quashed where they allege an intent “to defraud or to deceive the said Housing Authority of the City of Lumberton, North Carolina,” since this section requires that they allege an accompanying intent to injure, defraud, or deceive an officer of the corporation. State v. Hill, 45 N.C. App. 136, 263 S.E.2d 14, 1980 N.C. App. LEXIS 2622 (1980).

Evidence Held Sufficient. —

Evidence was sufficient to find that defendant induced others to participate in the commission of obtaining property by false pretense and corporate malfeasance where defendant induced putative father to participate in a scheme to defraud mother of child support by suggesting to him that drawing his blood and a paternity test would subject him to years of paying child support and the possible loss of his family, and offered to prevent him from being found to be the father for $500. State v. Weary, 124 N.C. App. 754, 479 S.E.2d 28, 1996 N.C. App. LEXIS 1298 (1996).

Phlebotomist hired as independent contractor for corporation was acting as the corporation’s agent when she falsified a blood test report where she had an employment contract with the corporation, a salary, a traveling allowance, and a description of her duties, and the corporation had a contract with county child support enforcement agency to perform phlebotomy services and sent defendant to the agency on its behalf. State v. Weary, 124 N.C. App. 754, 479 S.E.2d 28, 1996 N.C. App. LEXIS 1298 (1996).

Article 33. Prison Breach and Prisoners.

§ 14-254.5. Definitions. [Effective until January 1, 2023]

The following definitions apply in this Article:

  1. Employee. — Any person who is hired or contracted to work for the State or a local government.
  2. Prisoner. — Any person in the custody of (i) the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, (ii) any law enforcement officer, or (iii) any local confinement facility as defined in G.S. 153A-217 or G.S. 153A-230.1 , including persons pending trial, appellate review, or presentence diagnostic evaluation.

History. 2018-67, s. 1.

Editor’s Note.

Session Laws 2018-67, s. 5, made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

§ 14-254.5. Definitions. [Effective January 1, 2023]

The following definitions apply in this Article:

  1. Employee. — Any person who is hired or contracted to work for the State or a local government.
  2. Prisoner. — Any person in the custody of (i) the Division of Prisons of the Department of Adult Correction, (ii) any law enforcement officer, or (iii) any local confinement facility as defined in G.S. 153A-217 or G.S. 153A-230.1 , including persons pending trial, appellate review, or presentence diagnostic evaluation.

History. 2018-67, s. 1; 2021-180, s. 19C.9(p).

Editor’s Note.

Session Laws 2018-67, s. 5, made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” in subdivision (2). For effective date and applicability, see editor's note.

§ 14-255. Escape of working prisoners from custody.

If any prisoner removed from the local confinement facility or satellite jail/work release unit of a county pursuant to G.S. 162-58 shall escape from the person having him in custody or the person supervising him, he shall be guilty of a Class 1 misdemeanor.

History. 1876-7, c. 196, s. 4; Code, s. 3455; Rev., s. 3658; C.S., s. 4403; 1991 (Reg. Sess., 1992), c. 841, s. 2; 1993, c. 539, s. 158; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(r).

CASE NOTES

Two Classes of Escape. —

There are two classes of escape from the State prison system. One is a felonious escape and the other is a misdemeanor. A defendant who has committed an escape is entitled to have his case submitted to the jury on question of whether he was imprisoned while serving a sentence imposed for a felony or for a misdemeanor. State v. Ledford, 9 N.C. App. 245, 175 S.E.2d 605, 1970 N.C. App. LEXIS 1325 (1970) (decided under prior law) .

No Evidence That Defendant Was Hired Out Under This Section. —

A defendant’s contention that he should have been tried for escape under this section rather than under G.S. 148-45 was without merit where the evidence showed that, when he escaped, defendant was in the custody of the State Department of Correction and was under the supervision of a foreman for the State Highway Department, and there was no evidence that defendant was being hired out by a county, city or town under the provisions of this section. State v. Ledford, 9 N.C. App. 245, 175 S.E.2d 605, 1970 N.C. App. LEXIS 1325 (1970) (decided under prior law) .

Fair Sentencing Act. —

Although the principal provisions of the Fair Sentencing Act are codified in Chapter 15A, Article 81A of the General Statutes, the act resulted in revisions to other portions of the general statutes. See e.g., Chapter 14, Articles 1, 2, 2A, 33; Chapter 15A, Articles 58, 81A, 82, 83, 85, 85A, 89, 91; Chapter 148, Article 2, and Chapter 162, Article 4. State v. Ahearn, 307 N.C. 584 , 300 S.E.2d 689, 1983 N.C. LEXIS 1120 (1983).

For case discussing the historical background, policies, purposes, and implementation of the new Fair Sentencing Act, see State v. Ahearn, 307 N.C. 584 , 300 S.E.2d 689, 1983 N.C. LEXIS 1120 (1983).

§ 14-256. Prison breach and escape from county or municipal confinement facilities or officers.

If any person shall break any prison, jail or lockup maintained by any county or municipality in North Carolina, being lawfully confined therein, or shall escape from the lawful custody of any superintendent, guard or officer of such prison, jail or lockup, he shall be guilty of a Class 1 misdemeanor, except that the person is guilty of a Class H felony if:

  1. He has been charged with or convicted of a felony and has been committed to the facility pending trial or transfer to the State prison system; or
  2. He is serving a sentence imposed upon conviction of a felony.

History. 1 Edw. II, st. 2d; R.C., c. 34, s. 19; Code, s. 1021; Rev., s. 3657; 1909, c. 872; C.S., s. 4404; 1955, c. 279, s. 1; 1983, c. 455, s. 1; 1993, c. 539, ss. 159, 1217; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(s); 2013-389, s. 3.

Cross References.

As to penalty for escaping or assisting in an escape from the state prison, see G.S. 148-45 .

Editor’s Note.

The 1955 amendatory act provided in s. 4: “The provisions of this act shall be construed to be mandatory rather than directive.”

Effect of Amendments.

Session Laws 2013-389, s. 3, effective December 1, 2013, in subdivision (1), inserted “charged with or” and “trial or.” For applicability, see Editor’s note.

CASE NOTES

Common Law. —

The offense of breaking jail was a felony at common law, but by this section, all cases, no matter what the person is confined for, are reduced to a misdemeanor. State v. Brown, 82 N.C. 585 , 1880 N.C. LEXIS 307 (1880) (decided under prior law) .

This section applies only to the act of breaking out of jail or county prison and not from mere personal restraint or imprisonment under law. State v. Brame, 71 N.C. App. 270, 321 S.E.2d 449, 1984 N.C. App. LEXIS 3792 (1984).

Escape From Officer Not Included. —

This section applies only to breaking prison or escaping therefrom and does not, because of its wording, include escape from an officer before being confined to prison. State v. Brown, 82 N.C. 585 , 1880 N.C. LEXIS 307 (1880).

A juvenile detention home or center is not a “prison, jail, or lockup” within the meaning of this section. State v. Puckett, 43 N.C. App. 596, 259 S.E.2d 310, 1979 N.C. App. LEXIS 3092 (1979).

Deputy of Officer of “Such Jail.” —

Deputy’s testimony he placed defendant in the Alamance County jail before and after defendant’s hearing led to the conclusion that the deputy was an officer of “such jail,” within the meaning of G.S. 14-256 , and thus there was sufficient evidence to support defendant’s conviction for felonious escape from local jail. State v. Farrar, 178 N.C. App. 231, 631 S.E.2d 48, 2006 N.C. App. LEXIS 1345 (2006).

Cost of Recapture May Not Be Recovered from Prisoner. —

The State may not recover of a prisoner moneys expended by it to recapture him after escape from custody, since the escape does not invade any property right of the State, but the expenditure of the sums is voluntary and made by it for the protection of the people of the State in preserving the integrity of a penal system. State Hwy. & Pub. Works Comm'n v. Cobb, 215 N.C. 556 , 2 S.E.2d 565, 1939 N.C. LEXIS 308 (1939).

§ 14-256.1. Escape from private correctional facility.

It is unlawful for any person convicted in a jurisdiction other than North Carolina but housed in a private correctional facility located in North Carolina to escape from that facility. Violation of this section is a Class H felony.

History. 1998-212, s. 17.23(a).

OPINIONS OF ATTORNEY GENERAL

Federal inmates who escape from private prisons are subject to North Carolina criminal penalties. See opinion of Attorney General to Senator Frank W. Ballance, Jr. and Representative E. David Redwine, (3/28/2001).

§ 14-257. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(12).

§ 14-258. Providing forbidden articles or tools for escape; possessing tools for escape.

  1. Providing Forbidden Articles or Tools for Escape. —  Any person who sells, trades, conveys, or provides any of the following to a prisoner is guilty of a Class H felony:
    1. An article forbidden by prison rules.
    2. A letter, oral message, weapon, tool, good, clothing, device, or instrument, to effect an escape, or aide in an assault or insurrection.
  2. Increased Penalty. —  Any violation of subdivision (2) of subsection (a) of this section that does effect an escape, assault, or insurrection is a Class F felony.
  3. Possessing Tools for Escape. —  Any prisoner who possesses a letter, weapon, tool, good, article of clothing, device, or instrument to do any of the following is guilty of a Class H felony:
    1. To effect an escape.
    2. Aide in an assault or insurrection.
  4. Application. —  The provisions of this section apply to violations committed inside or outside of the prison, jail, detention center, or other confinement facility.

History. 1873-4, c. 158; s. 12; Code, s. 3441; Rev., s. 3662; 1911, c. 11; C.S., s. 4406; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1218; 1994, Ex. Sess., c. 24, s. 14(c); 2018-67, s. 3.

Cross References.

For structured sentencing provisions effective October 1, 1994, see G.S. 15A-1340.10 et seq.

Editor’s Note.

Session Laws 2018-67, s. 5, made the rewriting of this section by Session Laws 2018-67, s. 3, effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2018-67, s. 3, rewrote the section. For effective date and applicability, see editor’s note.

§ 14-258.1. Furnishing poison, controlled substances, deadly weapons, cartridges, ammunition or alcoholic beverages to inmates of charitable, mental or penal institutions or local confinement facilities; furnishing tobacco products including vapor products; or furnishing mobile phones to inmates or delinquent juveniles. [Effective until January 1, 2023]

  1. If any person shall give or sell to any inmate of any charitable, mental or penal institution, or local confinement facility, or if any person shall combine, confederate, conspire, aid, abet, solicit, urge, investigate, counsel, advise, encourage, attempt to procure, or procure another or others to give or sell to any inmate of any charitable, mental or penal institution, or local confinement facility, any deadly weapon, or any cartridge or ammunition for firearms of any kind, or any controlled substances included in Schedules I through VI contained in Article 5 of Chapter 90 of the General Statutes except under the general supervision of a practitioner, poison or poisonous substance, except upon the prescription of a physician, he shall be punished as a Class H felon; and if he be an officer or employee of any institution of the State, or of any local confinement facility, he shall be dismissed from his position or office.
  2. Any person who shall knowingly give or sell any alcoholic beverages to any inmate of any State mental or penal institution, or to any inmate of any local confinement facility, except for medical purposes as prescribed by a duly licensed physician and except for an ordained minister or rabbi who gives sacramental wine to an inmate as part of a religious service; or any person who shall combine, confederate, conspire, procure, or procure another or others to give or sell any alcoholic beverages to any inmate of any such State institution or local confinement facility, except for medical purposes as prescribed by a duly licensed physician and except for an ordained minister or rabbi who gives sacramental wine to an inmate as part of a religious service; or any person who shall bring into the buildings, grounds or other facilities of such institution any alcoholic beverages, except for medical purposes as prescribed by a duly licensed physician or sacramental wine brought by an ordained minister or rabbi for use as part of a religious service, shall be guilty of a Class 1 misdemeanor. If such person is an officer or employee of any institution of the State, such person shall be dismissed from office.
  3. Any person who knowingly gives or sells any tobacco products, including vapor products, as defined in G.S. 148-23.1 , to an inmate in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety and on the premises of a correctional facility or to an inmate in the custody of a local confinement facility, or any person who knowingly gives or sells any tobacco products, including vapor products, to a person who is not an inmate for delivery to an inmate in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety and on the premises of a correctional facility or to an inmate in the custody of a local confinement facility, other than for authorized religious purposes, is guilty of a Class 1 misdemeanor.
  4. Any person who knowingly gives or sells a mobile telephone or other wireless communications device, or a component of one of those devices, to an inmate in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, to a delinquent juvenile in the custody of the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, or to an inmate in the custody of a local confinement facility, or any person who knowingly gives or sells any such device or component to a person who is not an inmate or delinquent juvenile for delivery to an inmate or delinquent juvenile, is guilty of a Class H felony.For purposes of this subsection, a delinquent juvenile in the custody of the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety shall mean a juvenile confined in a youth development center or a detention facility as defined in G.S. 7B-1501 , and shall include transportation of a juvenile to or from confinement.
  5. Any inmate of a local confinement facility who possesses any tobacco product, as defined in G.S. 148-23.1 , other than for authorized religious purposes, is guilty of a Class 1 misdemeanor.
  6. Notwithstanding subsection (c) of this section, local confinement facilities may give or sell vapor products or FDA-approved tobacco cessation products, such as over-the-counter nicotine replacement therapies, including nicotine gum, patches, and lozenges, to inmates while in the custody of the local confinement facility.
  7. Any inmate in the custody of the Division of Adult Correction of the Department of Public Safety or an inmate of a local confinement facility who possesses a mobile telephone or other wireless communication device or a component of one of those devices is guilty of a Class H felony.
  8. The prohibitions in subsections (d) and (g) of this section shall not apply to any mobile telephone or other wireless communications device provided to or possessed by an inmate of a local confinement facility if the mobile telephone or other wireless communications device has been approved by the sheriff or other person in charge of a local confinement facility for use by inmates and is provided to the inmate in a manner consistent with the approved use of that device.

History. 1961, c. 394, s. 2; 1969, c. 970, s. 6; 1971, c. 929; 1973, c. 1093; 1975, c. 804, ss. 1, 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; c. 412, s. 4; c. 747, s. 66; 1989, c. 106; 1993, c. 539, s. 160; 1994, Ex. Sess., c. 24, s. 14(c); 2009-560, s. 3; 2011-145, s. 19.1(h); 2014-3, s. 15.2(b); 2014-115, s. 23(a); 2014-119, s. 5(a); 2015-47, s. 1; 2017-186, s. 2(dd); 2020-74, s. 26(a).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to furnishing tobacco products or mobile phones to inmates, see G.S. 14-258.1 .

Editor’s Note.

Session Laws 2009-560, s. 4, provides: “The Department of Correction [now the Division of Adult Correction of the Department of Public Safety] and local confinement facilities shall ensure that sufficient notice is provided to inmates, staff, and the public of the prohibitions and penalties established in this act through the posting of signs in prominent places at all State correctional facilities and local confinement facilities and any other measures the Department and local confinement facilities deem necessary to sufficiently publicize those prohibitions and penalties.”

Session Laws 2014-115, s. 23(a) and Session Laws 2014-119, s. 5(a) both enacted a subsection (f). Subsection (f), as enacted by Session Laws 2014-119, s. 5(a) has been redesignated as subsection (g) at the direction of the Revisor of Statutes.

Session Laws 2020-74, s. 26(b), made subsection (h), as added by Session Laws 2020-74, s. 26(a), effective August 1, 2020, and applicable to offenses committed on or after that date. Session Laws 2020-74, s. 26(b), further provides: “Prosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2009-560, s. 3, effective March 1, 2010, and applicable to acts committed on or after that date, added “furnishing tobacco products or mobile phones to inmates” at the end of the section heading; and added subsections (c) through (e).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2014-3, s. 15.2(b), effective December 1, 2014, substituted “tobacco products including vapor products; or furnishing” for “tobacco products or”’ in the section heading; and substituted “tobacco products, including vapor products,” for “tobacco product” throughout subsections (c) and (e). See Editor’s note for applicability.

Session Laws 2014-115, s. 23(a), effective December 1, 2014, deleted “including vapor products” following “tobacco products” in subsection (e); and added subsection (f). See Editor’s note for applicability.

Session Laws 2014-119, s. 5(a), effective December 1, 2014, in subsection (d), substituted “Class H Felony” for “Class 1 misdemeanor”; in subsection (e), deleted “or who possesses a mobile telephone or other wireless communications device or a component of one of those devises,” preceding “is guilty of”; and added subsection (f). See Editor’s note for applicability.

Session Laws 2015-47, s. 1, effective December 1, 2015, added “or delinquent juveniles” at the end of the section heading; in subsection (d), in the first paragraph, inserted “to a delinquent juvenile in the custody of the Division of Juvenile Justice of the Department of Public Safety,” and “or delinquent juvenile” both times it appears, and added the second paragraph. For applicability, see editor’s note.

Session Laws 2017-186, s. 2(dd), effective December 1, 2017, inserted “and Juvenile Justice” and substituted “Juvenile Justice Section of the Division of Adult Correction and” for “Division of” in subsections (c) and (d).

Session Laws 2020-74, s. 26(a), added subsection (h). For effective date and applicability, see editor’s note.

CASE NOTES

This section delineates two categories of offenses for which an individual might be found guilty: (1) The substantive offense of giving or selling or (2) a group of 13 related acts that depict involvement with, but fall short of the commission of, the substantive offense, namely, combining, confederating, conspiring, aiding, abetting, soliciting, urging, investigating (instigating?), counseling, advising, encouraging, attempting to procure, or procuring another to commit the offense of giving or selling. State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684, 1985 N.C. App. LEXIS 4269 (1985).

The second category of proscribed acts in this section does not create 13 separate criminal offenses, each punishable as a Class H felony. State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684, 1985 N.C. App. LEXIS 4269 (1985).

Defendant’s convictions of conspiring to provide drugs to an inmate in violation of subsection (a) of this section and of procuring drugs for an inmate in violation of the same statute constituted double jeopardy, and his conviction on the second count would be vacated. State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684, 1985 N.C. App. LEXIS 4269 (1985).

Indictment Held Sufficient. —

Indictment charging defendant with the completed offense of giving a controlled substance to an inmate was sufficient to enable him to adequately prepare for trial and to protect him from being twice put in jeopardy for the same offense, so as to support his conviction of an attempt to give a controlled substance to an inmate. State v. Slade, 81 N.C. App. 303, 343 S.E.2d 571, 1986 N.C. App. LEXIS 2289 (1986).

Evidence Held Sufficient in Controlled Substance Case. —

The State’s evidence showing that the defendant’s boyfriend was an inmate at a local confinement facility, that defendant gave him a controlled substance while he was an inmate, and that defendant acted knowingly and intentionally was sufficient to sustain a conviction under this section. State v. Mitchell, 135 N.C. App. 617, 522 S.E.2d 94, 1999 N.C. App. LEXIS 1178 (1999).

Number of Conspiracy Counts Allowed. —

Defendant could only be convicted of one count of conspiracy to provide an inmate with a controlled substance, even though four incidents occurred, where the offenses transpired over a short period of time, the participants in the conspiracies for which defendant was indicted remained the same, the indictments all averred the same objective, delivering controlled substances to the inmate coconspirator, and the State presented no evidence concerning the number of meetings which took place between defendant and the other participants. State v. Griffin, 112 N.C. App. 838, 437 S.E.2d 390, 1993 N.C. App. LEXIS 1243 (1993).

§ 14-258.1. Furnishing poison, controlled substances, deadly weapons, cartridges, ammunition or alcoholic beverages to inmates of charitable, mental or penal institutions or local confinement facilities; furnishing tobacco products including vapor products; or furnishing mobile phones to inmates or delinquent juveniles. [Effective January 1, 2023]

  1. If any person shall give or sell to any inmate of any charitable, mental or penal institution, or local confinement facility, or if any person shall combine, confederate, conspire, aid, abet, solicit, urge, investigate, counsel, advise, encourage, attempt to procure, or procure another or others to give or sell to any inmate of any charitable, mental or penal institution, or local confinement facility, any deadly weapon, or any cartridge or ammunition for firearms of any kind, or any controlled substances included in Schedules I through VI contained in Article 5 of Chapter 90 of the General Statutes except under the general supervision of a practitioner, poison or poisonous substance, except upon the prescription of a physician, he shall be punished as a Class H felon; and if he be an officer or employee of any institution of the State, or of any local confinement facility, he shall be dismissed from his position or office.
  2. Any person who shall knowingly give or sell any alcoholic beverages to any inmate of any State mental or penal institution, or to any inmate of any local confinement facility, except for medical purposes as prescribed by a duly licensed physician and except for an ordained minister or rabbi who gives sacramental wine to an inmate as part of a religious service; or any person who shall combine, confederate, conspire, procure, or procure another or others to give or sell any alcoholic beverages to any inmate of any such State institution or local confinement facility, except for medical purposes as prescribed by a duly licensed physician and except for an ordained minister or rabbi who gives sacramental wine to an inmate as part of a religious service; or any person who shall bring into the buildings, grounds or other facilities of such institution any alcoholic beverages, except for medical purposes as prescribed by a duly licensed physician or sacramental wine brought by an ordained minister or rabbi for use as part of a religious service, shall be guilty of a Class 1 misdemeanor. If such person is an officer or employee of any institution of the State, such person shall be dismissed from office.
  3. Any person who knowingly gives or sells any tobacco products, including vapor products, as defined in G.S. 148-23.1 , to an inmate in the custody of the Division of Prisons of the Department of Adult Correction and on the premises of a correctional facility or to an inmate in the custody of a local confinement facility, or any person who knowingly gives or sells any tobacco products, including vapor products, to a person who is not an inmate for delivery to an inmate in the custody of the Division of Prisons of the Department of Adult Correction and on the premises of a correctional facility or to an inmate in the custody of a local confinement facility, other than for authorized religious purposes, is guilty of a Class 1 misdemeanor.
  4. Any person who knowingly gives or sells a mobile telephone or other wireless communications device, or a component of one of those devices, to an inmate in the custody of the Division of Prisons of the Department of Adult Correction, to a delinquent juvenile in the custody of the Juvenile Justice Section of the Division of Prisons of the Department of Adult Correction, or to an inmate in the custody of a local confinement facility, or any person who knowingly gives or sells any such device or component to a person who is not an inmate or delinquent juvenile for delivery to an inmate or delinquent juvenile, is guilty of a Class H felony.For purposes of this subsection, a delinquent juvenile in the custody of the Juvenile Justice Section of the Division of Prisons of the Department of Adult Correction shall mean a juvenile confined in a youth development center or a detention facility as defined in G.S. 7B-1501 , and shall include transportation of a juvenile to or from confinement.
  5. Any inmate of a local confinement facility who possesses any tobacco product, as defined in G.S. 148-23.1 , other than for authorized religious purposes, is guilty of a Class 1 misdemeanor.
  6. Notwithstanding subsection (c) of this section, local confinement facilities may give or sell vapor products or FDA-approved tobacco cessation products, such as over-the-counter nicotine replacement therapies, including nicotine gum, patches, and lozenges, to inmates while in the custody of the local confinement facility.
  7. Any inmate in the custody of the Division of Adult Correction of the Department of Public Safety or an inmate of a local confinement facility who possesses a mobile telephone or other wireless communication device or a component of one of those devices is guilty of a Class H felony.
  8. The prohibitions in subsections (d) and (g) of this section shall not apply to any mobile telephone or other wireless communications device provided to or possessed by an inmate of a local confinement facility if the mobile telephone or other wireless communications device has been approved by the sheriff or other person in charge of a local confinement facility for use by inmates and is provided to the inmate in a manner consistent with the approved use of that device.

History. 1961, c. 394, s. 2; 1969, c. 970, s. 6; 1971, c. 929; 1973, c. 1093; 1975, c. 804, ss. 1, 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; c. 412, s. 4; c. 747, s. 66; 1989, c. 106; 1993, c. 539, s. 160; 1994, Ex. Sess., c. 24, s. 14(c); 2009-560, s. 3; 2011-145, s. 19.1(h); 2014-3, s. 15.2(b); 2014-115, s. 23(a); 2014-119, s. 5(a); 2015-47, s. 1; 2017-186, s. 2(dd); 2020-74, s. 26(a); 2021-180, s. 19C.9(p), (z).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

As to furnishing tobacco products or mobile phones to inmates, see G.S. 14-258.1 .

Editor’s Note.

Session Laws 2009-560, s. 4, provides: “The Department of Correction [now the Division of Adult Correction of the Department of Public Safety] and local confinement facilities shall ensure that sufficient notice is provided to inmates, staff, and the public of the prohibitions and penalties established in this act through the posting of signs in prominent places at all State correctional facilities and local confinement facilities and any other measures the Department and local confinement facilities deem necessary to sufficiently publicize those prohibitions and penalties.”

Session Laws 2014-115, s. 23(a) and Session Laws 2014-119, s. 5(a) both enacted a subsection (f). Subsection (f), as enacted by Session Laws 2014-119, s. 5(a) has been redesignated as subsection (g) at the direction of the Revisor of Statutes.

Session Laws 2020-74, s. 26(b), made subsection (h), as added by Session Laws 2020-74, s. 26(a), effective August 1, 2020, and applicable to offenses committed on or after that date. Session Laws 2020-74, s. 26(b), further provides: “Prosecutions for offenses committed before the effective date of this section are not abated or affected by this section, and the statutes that would be applicable but for this section remain applicable to those prosecutions.”

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), (z), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2009-560, s. 3, effective March 1, 2010, and applicable to acts committed on or after that date, added “furnishing tobacco products or mobile phones to inmates” at the end of the section heading; and added subsections (c) through (e).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2014-3, s. 15.2(b), effective December 1, 2014, substituted “tobacco products including vapor products; or furnishing” for “tobacco products or”’ in the section heading; and substituted “tobacco products, including vapor products,” for “tobacco product” throughout subsections (c) and (e). See Editor’s note for applicability.

Session Laws 2014-115, s. 23(a), effective December 1, 2014, deleted “including vapor products” following “tobacco products” in subsection (e); and added subsection (f). See Editor’s note for applicability.

Session Laws 2014-119, s. 5(a), effective December 1, 2014, in subsection (d), substituted “Class H Felony” for “Class 1 misdemeanor”; in subsection (e), deleted “or who possesses a mobile telephone or other wireless communications device or a component of one of those devises,” preceding “is guilty of”; and added subsection (f). See Editor’s note for applicability.

Session Laws 2015-47, s. 1, effective December 1, 2015, added “or delinquent juveniles” at the end of the section heading; in subsection (d), in the first paragraph, inserted “to a delinquent juvenile in the custody of the Division of Juvenile Justice of the Department of Public Safety,” and “or delinquent juvenile” both times it appears, and added the second paragraph. For applicability, see editor’s note.

Session Laws 2017-186, s. 2(dd), effective December 1, 2017, inserted “and Juvenile Justice” and substituted “Juvenile Justice Section of the Division of Adult Correction and” for “Division of” in subsections (c) and (d).

Session Laws 2020-74, s. 26(a), added subsection (h). For effective date and applicability, see editor’s note.

Session Laws 2021-180, s. 19C.9(p), (z), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” throughout subsection (c), and substituted “Division of Juvenile Justice” for “Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice” in subsection (g). For effective date and applicability, see editor's note.

CASE NOTES

This section delineates two categories of offenses for which an individual might be found guilty: (1) The substantive offense of giving or selling or (2) a group of 13 related acts that depict involvement with, but fall short of the commission of, the substantive offense, namely, combining, confederating, conspiring, aiding, abetting, soliciting, urging, investigating (instigating?), counseling, advising, encouraging, attempting to procure, or procuring another to commit the offense of giving or selling. State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684, 1985 N.C. App. LEXIS 4269 (1985).

The second category of proscribed acts in this section does not create 13 separate criminal offenses, each punishable as a Class H felony. State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684, 1985 N.C. App. LEXIS 4269 (1985).

Defendant’s convictions of conspiring to provide drugs to an inmate in violation of subsection (a) of this section and of procuring drugs for an inmate in violation of the same statute constituted double jeopardy, and his conviction on the second count would be vacated. State v. Seagroves, 78 N.C. App. 49, 336 S.E.2d 684, 1985 N.C. App. LEXIS 4269 (1985).

Indictment Held Sufficient. —

Indictment charging defendant with the completed offense of giving a controlled substance to an inmate was sufficient to enable him to adequately prepare for trial and to protect him from being twice put in jeopardy for the same offense, so as to support his conviction of an attempt to give a controlled substance to an inmate. State v. Slade, 81 N.C. App. 303, 343 S.E.2d 571, 1986 N.C. App. LEXIS 2289 (1986).

Evidence Held Sufficient in Controlled Substance Case. —

The State’s evidence showing that the defendant’s boyfriend was an inmate at a local confinement facility, that defendant gave him a controlled substance while he was an inmate, and that defendant acted knowingly and intentionally was sufficient to sustain a conviction under this section. State v. Mitchell, 135 N.C. App. 617, 522 S.E.2d 94, 1999 N.C. App. LEXIS 1178 (1999).

Number of Conspiracy Counts Allowed. —

Defendant could only be convicted of one count of conspiracy to provide an inmate with a controlled substance, even though four incidents occurred, where the offenses transpired over a short period of time, the participants in the conspiracies for which defendant was indicted remained the same, the indictments all averred the same objective, delivering controlled substances to the inmate coconspirator, and the State presented no evidence concerning the number of meetings which took place between defendant and the other participants. State v. Griffin, 112 N.C. App. 838, 437 S.E.2d 390, 1993 N.C. App. LEXIS 1243 (1993).

§ 14-258.2. Possession of dangerous weapon in prison. [Effective until January 1, 2023]

  1. Any person while in the custody of the Section of Prisons of the Division of Adult Correction and Juvenile Justice, or any person under the custody of any local confinement facility as defined in G.S. 153A-217 , who shall have in his possession without permission or authorization a weapon capable of inflicting serious bodily injuries or death, or who shall fabricate or create such a weapon from any source, shall be guilty of a Class H felony; and any person who commits any assault with such weapon and thereby inflicts bodily injury or by the use of said weapon effects an escape or rescue from imprisonment shall be punished as a Class F felon.
  2. A person is guilty of a Class H felony if he assists a prisoner in the custody of the Section of Prisons of the Division of Adult Correction and Juvenile Justice or of any local confinement facility as defined in G.S. 153A-217 in escaping or attempting to escape and:
    1. In the perpetration of the escape or attempted escape he commits an assault with a deadly weapon and inflicts bodily injury; or
    2. By the use of a deadly weapon he effects the escape of the prisoner.

History. 1975, c. 316, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 455, s. 2; 1993, c. 539, s. 1219; 1994, Ex. Sess., c. 24, s. 14(c); 2011-145, s. 19.1(j); 2017-186, ss. 2(ee), 3(a).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

Session Laws 2017-186, s. 3(a), provides: “The Revisor of Statutes shall change any additional references in the General Statutes to the ‘Division of Adult Correction’ to the ’Division of Adult Correction and Juvenile Justice’.”

Effect of Amendments.

Session Laws 2011-145, s. 19.1(j), effective January 1, 2012, substituted “Section of Prisons of the Division of Adult Correction” for “Division of Prisons.”

Session Laws 2017-186, s. 2(ee), effective December 1, 2017, inserted “and Juvenile Justice” in the introductory language of subsection (b).

CASE NOTES

Double Jeopardy. —

Defendant’s argument that the assault with a deadly weapon inflicting serious injury charge he was convicted of was a lesser included offense of assault by a prisoner with a deadly weapon inflicting bodily injury, and thus, his consecutive sentences for those convictions violated the Double Jeopardy Clause failed because the offenses were distinct. State v. Smith, 267 N.C. App. 364, 832 S.E.2d 921, 2019 N.C. App. LEXIS 729 (2019).

Although assault with a deadly weapon inflicting serious injury charge and assault by a prisoner with a deadly weapon inflicting bodily injury bear similarities, they are distinct for two reasons pertaining to the respective injuries required to prove the charges; not every bodily injury is serious, and the inverse is true as well, not every serious injury is a bodily injury, and thus, “serious injury” and “bodily injury” are not synonymous. State v. Smith, 267 N.C. App. 364, 832 S.E.2d 921, 2019 N.C. App. LEXIS 729 (2019).

§ 14-258.2. Possession of dangerous weapon in prison. [Effective January 1, 2023]

  1. Any person while in the custody of the Division of Prisons, or any person under the custody of any local confinement facility as defined in G.S. 153A-217 , who shall have in his possession without permission or authorization a weapon capable of inflicting serious bodily injuries or death, or who shall fabricate or create such a weapon from any source, shall be guilty of a Class H felony; and any person who commits any assault with such weapon and thereby inflicts bodily injury or by the use of said weapon effects an escape or rescue from imprisonment shall be punished as a Class F felon.
  2. A person is guilty of a Class H felony if he assists a prisoner in the custody of the Division of Prisons or of any local confinement facility as defined in G.S. 153A-217 in escaping or attempting to escape and:
    1. In the perpetration of the escape or attempted escape he commits an assault with a deadly weapon and inflicts bodily injury; or
    2. By the use of a deadly weapon he effects the escape of the prisoner.

History. 1975, c. 316, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 455, s. 2; 1993, c. 539, s. 1219; 1994, Ex. Sess., c. 24, s. 14(c); 2011-145, s. 19.1(j); 2017-186, ss. 2(ee), 3(a); 2021-180, s. 19C.9(r).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

Session Laws 2017-186, s. 3(a), provides: “The Revisor of Statutes shall change any additional references in the General Statutes to the ‘Division of Adult Correction’ to the ’Division of Adult Correction and Juvenile Justice’.”

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(r), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(j), effective January 1, 2012, substituted “Section of Prisons of the Division of Adult Correction” for “Division of Prisons.”

Session Laws 2017-186, s. 2(ee), effective December 1, 2017, inserted “and Juvenile Justice” in the introductory language of subsection (b).

Session Laws 2021-180, s. 19C.9(r), substituted “Division of Prisons” for “Section of Prisons of the Division of Adult Correction and Juvenile Justice” once each in subsections (a) and (b). For effective date and applicability, see editor's note.

CASE NOTES

Double Jeopardy. —

Defendant’s argument that the assault with a deadly weapon inflicting serious injury charge he was convicted of was a lesser included offense of assault by a prisoner with a deadly weapon inflicting bodily injury, and thus, his consecutive sentences for those convictions violated the Double Jeopardy Clause failed because the offenses were distinct. State v. Smith, 267 N.C. App. 364, 832 S.E.2d 921, 2019 N.C. App. LEXIS 729 (2019).

Although assault with a deadly weapon inflicting serious injury charge and assault by a prisoner with a deadly weapon inflicting bodily injury bear similarities, they are distinct for two reasons pertaining to the respective injuries required to prove the charges; not every bodily injury is serious, and the inverse is true as well, not every serious injury is a bodily injury, and thus, “serious injury” and “bodily injury” are not synonymous. State v. Smith, 267 N.C. App. 364, 832 S.E.2d 921, 2019 N.C. App. LEXIS 729 (2019).

§ 14-258.3. Taking of hostage, etc., by prisoner. [Effective until January 1, 2023]

Any prisoner in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, including persons in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety pending trial or appellate review or for presentence diagnostic evaluation, or any prisoner in the custody of any local confinement facility (as defined in G.S. 153A-217 ), or any person in the custody of any local confinement facility (as defined in G.S. 153A-217 ) pending trial or appellate review or for any lawful purpose, who by threats, coercion, intimidation or physical force takes, holds, or carries away any person, as hostage or otherwise, shall be punished as a Class F felon. The provisions of this section apply to: (i) violations committed by any prisoner in the custody of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, whether inside or outside of the facilities of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety; (ii) violations committed by any prisoner or by any other person lawfully under the custody of any local confinement facility (as defined in G.S. 153A-217), whether inside or outside the local confinement facilities (as defined in G.S. 153A-217).

History. 1975, c. 315; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1220; 1994, Ex. Sess., c. 24, s. 14(c); 2011-145, s. 19.1(h); 2012-83, s. 19; 2017-186, s. 2(ff).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2012-83, s. 19, effective June 26, 2012, deleted “North Carolina” preceding “Division of Adult Correction of the Department of Public Safety”.

Session Laws 2017-186, s. 2(ff), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.

§ 14-258.3. Taking of hostage, etc., by prisoner. [Effective January 1, 2023]

Any prisoner in the custody of the Division of Prisons of the Department of Adult Correction, including persons in the custody of the Division of Prisons of the Department of Adult Correction pending trial or appellate review or for presentence diagnostic evaluation, or any prisoner in the custody of any local confinement facility (as defined in G.S. 153A-217 ), or any person in the custody of any local confinement facility (as defined in G.S. 153A-217 ) pending trial or appellate review or for any lawful purpose, who by threats, coercion, intimidation or physical force takes, holds, or carries away any person, as hostage or otherwise, shall be punished as a Class F felon. The provisions of this section apply to: (i) violations committed by any prisoner in the custody of the Division of Prisons of the Department of Adult Correction, whether inside or outside of the facilities of the Division of Prisons of the Department of Adult Correction; (ii) violations committed by any prisoner or by any other person lawfully under the custody of any local confinement facility (as defined in G.S. 153A-217), whether inside or outside the local confinement facilities (as defined in G.S. 153A-217).

History. 1975, c. 315; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1220; 1994, Ex. Sess., c. 24, s. 14(c); 2011-145, s. 19.1(h); 2012-83, s. 19; 2017-186, s. 2(ff); 2021-180, s. 19C.9(p).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(p), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2012-83, s. 19, effective June 26, 2012, deleted “North Carolina” preceding “Division of Adult Correction of the Department of Public Safety”.

Session Laws 2017-186, s. 2(ff), effective December 1, 2017, inserted “and Juvenile Justice” throughout the section.

Session Laws 2021-180, s. 19C.9(p), substituted “Division of Prisons of the Department of Adult Correction” for “Division of Adult Correction and Juvenile Justice of the Department of Public Safety” throughout the section. For effective date and applicability, see editor's note.

§ 14-258.4. Malicious conduct by prisoner.

  1. Any prisoner who knowingly and willfully throws, emits, or causes to be used as a projectile, any bodily fluids, excrement, or unknown substance at an employee, while the employee is in the performance of the employee’s duties, is guilty of a Class F felony.
  2. Any prisoner who knowingly and willfully exposes genitalia to an employee while the employee is in the performance of the employee’s duties is guilty of a Class I felony.
  3. The provisions of this section apply to violations committed inside or outside of the prison, jail, detention center, or other confinement facility.
  4. Sentences imposed under this Article shall run consecutively to and shall commence at the expiration of any sentence being served by the person sentenced under this section.

History. 2001-360, s. 1; 2011-145, ss. 19.1(h), (l); 2017-186, s. 2(gg); 2018-67, s. 2.

Editor’s Note.

As enacted, this section contained a subsection (a) but no (b). This section has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2018-67, s. 5, made the rewriting of this section by Session Laws 2018-67, s. 2, effective December 1, 2018, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(h) and ( l ), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction” and “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”

Session Laws 2017-186, s. 2(gg), effective December 1, 2017, in the first sentence of subsection (a), inserted “and Juvenile Justice” and substituted “including the Juvenile Justice Section of the Division of Adult Correction and” for “the Division of”.

Session Laws 2018-67, s. 2, rewrote the section. For effective date and applicability, see editor’s note.

CASE NOTES

Indictment. —

In a case in which defendant was found guilty by a jury of, inter alia, malicious conduct by a prisoner, in violation of G.S. 14-258.4 (a), he unsuccessfully argued that the trial court lacked jurisdiction because the indictment charging him was insufficiently precise to fully apprise him of the charges against him. The indictment, which was properly couched in the language of G.S. 14-258.4 , was sufficient to identify the offense of malicious conduct by a prisoner to protect defendant from double jeopardy, to enable him to prepare for trial and present a defense, and to support the judgment in the case. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4 (a), he unsuccessfully argued that the indictments charging him with violating G.S. 14-33(c)(4) and G.S. 14-258.4 had to meet the same requirements as one charging a person with the offense of resisting, delaying, or obstructing an officer under G.S. 14-223 . While an indictment alleging a violation of G.S. 14-223 had to describe the duty the named officer was discharging or attempting to discharge, because the specific duty that an officer was attempting to discharge was not an essential element of G.S. 14-33(c)(4) or G.S. 14-258.4, the duty the officer was attempting to discharge did not have to described in the indictments. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

“Free to leave test” is to be applied to determine whether an individual was “in custody” under G.S. 14-258.4 at the time of any alleged unlawful conduct. State v. Ellis, 168 N.C. App. 651, 608 S.E.2d 803, 2005 N.C. App. LEXIS 449 (2005).

In Custody. —

Since no conclusion could be reached by reading the indictment other than that defendant was in custody at the time he allegedly committed malicious conduct by a prisoner, the trial court had jurisdiction over his case, as the State adequately alleged the offense such that defendant was notified of the offense against which he was called to defend. State v. Artis, 174 N.C. App. 668, 622 S.E.2d 204, 2005 N.C. App. LEXIS 2610 (2005).

In a case in which defendant was found guilty by a jury of, inter alia, malicious conduct by a prisoner, in violation of G.S. 14-258.4(a), he unsuccessfully argued that the evidence was insufficient to support a finding that he was in custody within the meaning of G.S. 14-258.4(a) when he spat on a police officer. The evidence presented tended to show that defendant was extricated from the vehicle and refusing to give up his hands, and the officer testified that defendant was not free to leave; the evidence was sufficient to allow a jury to conclude that defendant would have believed he was not free to leave the scene and, thus, to conclude that he was in custody at the time of the encounter. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

Evidence. —

In a case involving felony malicious conduct by a prisoner, evidence regarding the treatment required for spitting when it went into an open wound, eyes, or mouth, even if erroneously admitted, did not constitute a prejudicial error. State v. Crouse, 169 N.C. App. 382, 610 S.E.2d 454, 2005 N.C. App. LEXIS 691 (2005).

Even if defendant had not waived his claim of error based on the trial court’s admission of officers’ testimony concerning his intent to spit on an officer in his trial for malicious conduct by prisoner, G.S. 14-258.4 , defendant failed to prove that, had the alleged error by the trial court not been committed, a reasonable possibility existed that a different result would have been reached at trial; the State’s evidence at trial was sufficiently strong to preclude any reasonable possibility that the jury would have found differently if the trial court excluded the challenged testimony. State v. Gutierrez, 185 N.C. App. 297, 648 S.E.2d 239, 2007 N.C. App. LEXIS 1693 (2007).

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4(a), he unsuccessfully argued that the officer’s many statements about the spitting incident failed to establish that defendant spit a bodily fluid on him. Considering the evidence in the light most favorable to the State, taking it to be true, and giving the State the benefit of every reasonable inference to be drawn therefrom, the officer’s testimony was sufficient to allow a reasonable inference that defendant emitted a bodily fluid onto the officer and, thus, assaulted him. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4(a), he unsuccessfully argued that the evidence was insufficient to show that the officer was taking defendant into custody for littering. Defendant was a passenger in a car that attempted to evade police officers, and during the chase, officers observed plastic bags being thrown from the vehicle into the river below, and, while there was a variance between the allegations in the indictment and the proof offered, the variance was not material; the indictments alleged that the officer was performing his duties as a government employee, and proof was offered to support the material allegation that the officer was performing a government duty when he was spit upon. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

Defendants acts of spitting on an officer inside the house and then again, five minutes later, outside the house were sufficient to support two counts of malicious conduct by a prisoner under G.S. 14-258.4 . State v. Heavner, 227 N.C. App. 139, 741 S.E.2d 897, 2013 N.C. App. LEXIS 486 (2013).

Aggravating Sentencing Factor. —

Trial court did not violate G.S. 15A-1340.16(d) when it found as an aggravating sentencing factor that defendant intended to hinder the lawful exercise of a governmental function when he committed the crime of malicious conduct by a prisoner, G.S. 14-258.4 . State v. Robertson, 161 N.C. App. 288, 587 S.E.2d 902, 2003 N.C. App. LEXIS 2049 (2003).

Lesser Included Offense. —

Where the State offered evidence at trial establishing that defendant, a prisoner at a facility operated by the North Carolina Department of Correction, deliberately spat on a correctional officer, an employee of the State, and that at the time of the incident, the officer was performing her duties as a correctional officer, the State presented evidence as to each essential element of the offense of malicious conduct by a prisoner; since defendant presented no evidence to negate the State’s evidence, the trial court was under no obligation to instruct the jury on any alleged lesser-included offense, as requested by defendant. State v. Smith, 163 N.C. App. 771, 594 S.E.2d 430, 2004 N.C. App. LEXIS 582 (2004).

Misdemeanor assault on a government official is not a lesser included offense of felony malicious conduct by a prisoner; therefore, defendant was not entitled to such a jury instruction in a case where defendant spat in an officer’s face. State v. Crouse, 169 N.C. App. 382, 610 S.E.2d 454, 2005 N.C. App. LEXIS 691 (2005).

Substantial Evidence Existed to Overcome Motion to Dismiss. —

Trial court properly denied defendant’s motion to dismiss the charge of malicious conduct by a prisoner because (1) substantial evidence existed to show that defendant was in custody of a law enforcement officer when he smeared his feces on the officer, and (2) the officer had chased defendant for 40 minutes, had cornered him in a canal, and approached him with the handcuffs in full view. State v. Ellis, 168 N.C. App. 651, 608 S.E.2d 803, 2005 N.C. App. LEXIS 449 (2005).

Willful and Knowing Conduct. —

In a case involving felony malicious conduct by a prisoner, a motion to dismiss was properly denied because a jury could have inferred that defendant’s act of spitting in an officer’s face was knowing and willful; despite evidence that defendant was in a stupor, there was ample evidence that defendant had motor skill control because defendant expressed dissatisfaction with the officer, ran down the street, and collected saliva in her mouth prior to spitting. State v. Crouse, 169 N.C. App. 382, 610 S.E.2d 454, 2005 N.C. App. LEXIS 691 (2005).

In a case in which defendant was found guilty by a jury of assault on a government official, in violation of G.S. 14-33(c)(4), and malicious conduct by a prisoner, in violation of G.S. 14-258.4(a), he unsuccessfully argued that the evidence was insufficient to support a finding that he acted knowingly and willfully when he spat on a police officer. Defendant’s conduct and his statements prior to and during the encounter with the officer supported the conclusion that defendant acted knowingly and willfully when he spat on the officer. State v. Noel, 202 N.C. App. 715, 690 S.E.2d 10, 2010 N.C. App. LEXIS 375 (2010).

§ 14-258.7. Annual reports of violations. [Effective until January 1, 2023]

  1. The Department of Public Safety and Juvenile Justice shall report the following to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15 of each year:
    1. The number of incidents of any violation of this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) involving an employee or contractor of a detention facility operated by the State.
    2. The nature of the resolution of every incident of any violation of this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) involving an employee or contractor of a detention facility operated by the State.
  2. The Conference of District Attorneys shall report the following to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15 of each year:
    1. The number of criminal charges pursuant to this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) that resulted in trial.
    2. The number of criminal charges pursuant to this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) that were resolved by a plea to a lesser-included offense.
    3. The number of criminal charges pursuant to this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) that were resolved by a voluntary dismissal or other discretionary action that effectively dismissed or reduced the original charge.
  3. The Administrative Office of the Courts shall report the following to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15 of each year:
    1. The number of violations of this Article, G.S. 14-34.5(b), 14-34.7(b), and 14-34.7(c)(2) charged.
    2. The number of violations of this Article, G.S. 14-34.5(b), 14-34.7(b), and 14-34.7(c)(2) that ended in a conviction.
    3. The number of violations of this Article, G.S. 14-34.5(b), 14-34.7(b), and 14-34.7(c)(2) that were dismissed.

History. 2018-67, s. 1.2.

Editor’s Note.

Session Laws 2018-67, s. 5, made this section effective June 25, 2018.

Session Laws 2018-67, s. 1.2, enacted this section with two subsections designated as (b). The second occurrence of subsection (b) has been redesignated as subsection (c) at the direction of the Revisor of Statutes.

§ 14-258.7. Annual reports of violations. [Effective January 1, 2023]

  1. The Department of Public Safety and the Department of Adult Correction shall each report the following to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15 of each year:
    1. The number of incidents of any violation of this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) involving an employee or contractor of a detention facility operated by the State.
    2. The nature of the resolution of every incident of any violation of this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) involving an employee or contractor of a detention facility operated by the State.
  2. The Conference of District Attorneys shall report the following to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15 of each year:
    1. The number of criminal charges pursuant to this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) that resulted in trial.
    2. The number of criminal charges pursuant to this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) that were resolved by a plea to a lesser-included offense.
    3. The number of criminal charges pursuant to this Article, G.S. 14-34.5(b), 14-34.7(b), or 14-34.7(c)(2) that were resolved by a voluntary dismissal or other discretionary action that effectively dismissed or reduced the original charge.
  3. The Administrative Office of the Courts shall report the following to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by March 15 of each year:
    1. The number of violations of this Article, G.S. 14-34.5(b), 14-34.7(b), and 14-34.7(c)(2) charged.
    2. The number of violations of this Article, G.S. 14-34.5(b), 14-34.7(b), and 14-34.7(c)(2) that ended in a conviction.
    3. The number of violations of this Article, G.S. 14-34.5(b), 14-34.7(b), and 14-34.7(c)(2) that were dismissed.

History. 2018-67, s. 1.2; 2021-180, s. 19C.9(ll).

Editor’s Note.

Session Laws 2018-67, s. 5, made this section effective June 25, 2018.

Session Laws 2018-67, s. 1.2, enacted this section with two subsections designated as (b). The second occurrence of subsection (b) has been redesignated as subsection (c) at the direction of the Revisor of Statutes.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to subsection (a) of this section by Session Laws 2021-180, s. 19C.9( ll ), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2021-180, s. 19C.9( ll ), substituted “the Department of Adult Correction shall each report” for “Juvenile Justice shall report” in subsection (a). For effective date and applicability, see editor's note.

§ 14-259. Harboring or aiding certain persons.

It shall be unlawful for any person knowing or having reasonable cause to believe, that any person has escaped from any prison, jail, reformatory, or from the criminal insane department of any State hospital, or from the custody of any peace officer who had such person in charge, or that such person is a convict or prisoner whose parole has been revoked, or that such person is a fugitive from justice or is otherwise the subject of an outstanding warrant for arrest or order of arrest, to conceal, hide, harbor, feed, clothe or otherwise aid and comfort in any manner to any such person. Fugitive from justice shall, for the purpose of this provision, mean any person who has fled from any other jurisdiction to avoid prosecution for a crime.

Every person who shall conceal, hide, harbor, feed, clothe, or offer aid and comfort to any other person in violation of this section shall be guilty of a felony, if such other person has been convicted of, or was in custody upon the charge of a felony, and shall be punished as a Class I felon; and shall be guilty of a Class 1 misdemeanor, if such other person had been convicted of, or was in custody upon a charge of a misdemeanor, and shall be punished in the discretion of the court.

The provisions of this section shall not apply to members of the immediate family of such person. For the purposes of this section “immediate family” shall be defined to be the mother, father, brother, sister, wife, husband and child of said person.

History. 1939, c. 72; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 564, ss. 1-3; 1993, c. 539, s. 161; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For comment on this enactment, see 17 N.C.L. Rev. 348 (1939).

CASE NOTES

Indictment Fatally Defective. —

An indictment charging that the defendant unlawfully, willfully, and feloniously harbored an escapee who was serving a sentence of imprisonment when he escaped, is fatally defective in omitting the words “knowing or having reasonable cause to believe that said person was an escapee.” State v. Kirkman, 272 N.C. 143 , 157 S.E.2d 716, 1967 N.C. LEXIS 990 (1967).

§ 14-260.

Recodified as § 162-55 by Session Laws 1983, c. 631, s. 1.

§ 14-261. [Repealed]

Recodified as § 162-56 by Session Laws 1983, c. 631, s. 2.

§ 14-262. [Repealed]

Repealed by Session Laws 1975, c. 402.

§ 14-263. [Repealed]

Repealed by Session Laws 1979, c. 760, s. 4.

§ 14-264.

Recodified as § 162-57 by Session Laws 1983, c. 631, s. 3.

§ 14-265. [Repealed]

Repealed by Session Laws 1977, c. 711, s. 33.

Article 34. Custodial Institutions.

§ 14-266. Persuading inmates to escape.

It shall be unlawful for any parent, guardian, brother, sister, uncle, aunt, or any person whatsoever to persuade or induce to leave, carry away, or accompany from any State institution, except with the permission of the superintendent or other person next in authority, any boy or girl, man or woman, who has been legally committed or admitted under suspended sentence to said institution by juvenile, recorder’s, superior or any other court of competent jurisdiction.

History. 1935, c. 307, s. 1; 1937, c. 189, s. 1.

§ 14-267. Harboring fugitives.

It shall be unlawful for any person to harbor, conceal, or give succor to, any known fugitive from any institution whose inmates are committed by court or are admitted under suspended sentence.

History. 1935, c. 307, s. 2; 1937, c. 189, s. 2.

§ 14-268. Violation made misdemeanor.

Any person violating the provisions of this Article shall be guilty of a Class 1 misdemeanor.

History. 1935, c. 307, s. 3; 1993, c. 539, s. 162; 1994, Ex. Sess., c. 24, s. 14(c).

Subchapter IX. Offenses Against the Public Peace.

Article 35. Offenses Against the Public Peace.

§ 14-269. Carrying concealed weapons. [Effective until January 1, 2023]

  1. It shall be unlawful for any person willfully and intentionally to carry concealed about his or her person any bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shuriken, stun gun, or other deadly weapon of like kind, except when the person is on the person’s own premises. (a1) It shall be unlawful for any person willfully and intentionally to carry concealed about his or her person any pistol or gun except in the following circumstances:
    1. The person is on the person’s own premises.
    2. The deadly weapon is a handgun, the person has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24 , and the person is carrying the concealed handgun in accordance with the scope of the concealed handgun permit as set out in G.S. 14-415.11(c) .
    3. The deadly weapon is a handgun and the person is a military permittee as defined under G.S. 14-415.10(2a) who provides to the law enforcement officer proof of deployment as required under G.S. 14-415.11(a) .

      (a2) This prohibition does not apply to a person who has a concealed handgun permit issued in accordance with Article 54B of this Chapter, has a concealed handgun permit considered valid under G.S. 14-415.24 , or is exempt from obtaining a permit pursuant to G.S. 14-415.25 , provided the weapon is a handgun, is in a closed compartment or container within the person’s locked vehicle, and the vehicle is in a parking area that is owned or leased by State government. A person may unlock the vehicle to enter or exit the vehicle, provided the handgun remains in the closed compartment at all times and the vehicle is locked immediately following the entrance or exit.

  2. This prohibition shall not apply to the following persons:
    1. Officers and enlisted personnel of the Armed Forces of the United States when in discharge of their official duties as such and acting under orders requiring them to carry arms and weapons;
    2. Civil and law enforcement officers of the United States;
    3. Officers and soldiers of the militia and the National Guard when called into actual service; (3a) A member of the North Carolina National Guard who has been designated in writing by the Adjutant General, State of North Carolina, who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24 , and is acting in the discharge of his or her official duties, provided that the member does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the member’s body.
    4. Officers of the State, or of any county, city, town, or company police agency charged with the execution of the laws of the State, when acting in the discharge of their official duties;

      (4a) Any person who is a district attorney, an assistant district attorney, or an investigator employed by the office of a district attorney and who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24 ; provided that the person shall not carry a concealed weapon at any time while in a courtroom or while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body. The district attorney, assistant district attorney, or investigator shall secure the weapon in a locked compartment when the weapon is not on the person of the district attorney, assistant district attorney, or investigator. Notwithstanding the provisions of this subsection, a district attorney may carry a concealed weapon while in a courtroom;

      (4b) Any person who is a qualified retired law enforcement officer as defined in G.S. 14-415.10 and meets any one of the following conditions:

      1. Is the holder of a concealed handgun permit in accordance with Article 54B of this Chapter.
      2. Is exempt from obtaining a permit pursuant to G.S. 14-415.25 .
      3. Is certified by the North Carolina Criminal Justice Education and Training Standards Commission pursuant to G.S. 14-415.26 ;

        (4c) Detention personnel or correctional officers employed by the State or a unit of local government who park a vehicle in a space that is authorized for their use in the course of their duties may transport a firearm to the parking space and store that firearm in the vehicle parked in the parking space, provided that: (i) the firearm is in a closed compartment or container within the locked vehicle, or (ii) the firearm is in a locked container securely affixed to the vehicle;

        (4d) Any person who is a North Carolina district court judge, North Carolina superior court judge, or a North Carolina magistrate and who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24; provided that the person shall not carry a concealed weapon at any time while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body. The judge or magistrate shall secure the weapon in a locked compartment when the weapon is not on the person of the judge or magistrate;

        (4e) Any person who is serving as a clerk of court or as a register of deeds and who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24; provided that the person shall not carry a concealed weapon at any time while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body. The clerk of court or register of deeds shall secure the weapon in a locked compartment when the weapon is not on the person of the clerk of court or register of deeds. This subdivision does not apply to assistants, deputies, or other employees of the clerk of court or register of deeds;

    5. Sworn law-enforcement officers, when off-duty, provided that an officer does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the officer’s body;
    6. State probation or parole certified officers, when off-duty, provided that an officer does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the officer’s body.
    7. A person employed by the Department of Public Safety who has been designated in writing by the Secretary of the Department, who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24, and has in the person’s possession written proof of the designation by the Secretary of the Department, provided that the person shall not carry a concealed weapon at any time while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body.
    8. Any person who is an administrative law judge described in Article 60 of Chapter 7A of the General Statutes and who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24, provided that the person shall not carry a concealed weapon at any time while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body.
    9. State correctional officers, when off-duty, provided that an officer does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the officer’s body. If the concealed weapon is a handgun, the correctional officer must meet the firearms training standards of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.

      (b1) It is a defense to a prosecution under this section that:

      (1) The weapon was not a firearm;

      (2) The defendant was engaged in, or on the way to or from, an activity in which the defendant legitimately used the weapon;

      (3) The defendant possessed the weapon for that legitimate use; and

      (4) The defendant did not use or attempt to use the weapon for an illegal purpose.

      The burden of proving this defense is on the defendant.

      (b2) It is a defense to a prosecution under this section that:

      (1) The deadly weapon is a handgun;

      (2) The defendant is a military permittee as defined under G.S. 14-415.10 (2a); and

      (3) The defendant provides to the court proof of deployment as defined under G.S. 14-415.10(3a).

  3. Any person violating the provisions of subsection (a) of this section shall be guilty of a Class 2 misdemeanor. Any person violating the provisions of subsection (a1) of this section shall be guilty of a Class 2 misdemeanor for the first offense and a Class H felony for a second or subsequent offense. A violation of subsection (a1) of this section punishable under G.S. 14-415.21(a) is not punishable under this section.
  4. This section does not apply to an ordinary pocket knife carried in a closed position. As used in this section, “ordinary pocket knife” means a small knife, designed for carrying in a pocket or purse, that has its cutting edge and point entirely enclosed by its handle, and that may not be opened by a throwing, explosive, or spring action.

History. Code, s. 1005; Rev., s. 3708; 1917, c. 76; 1919, c. 197, s. 8; C.S., s. 4410; 1923, c. 57; Ex. Sess. 1924, c. 30; 1929, cc. 51, 224; 1947, c. 459; 1949, c. 1217; 1959, c. 1073, s. 1; 1965, c. 954, s. 1; 1969, c. 1224, s. 7; 1977, c. 616; 1981, c. 412, s. 4; c. 747, s. 66; 1983, c. 86; 1985, c. 432, ss. 1-3; 1993, c. 539, s. 163; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 398, s. 2; 1997-238, s. 1; 2003-199, s. 2; 2005-232, ss. 4, 5; 2005-337, s. 1; 2006-259, s. 5(a); 2009-281, s. 1; 2011-183, s. 127(a); 2011-243, s. 1; 2011-268, s. 3; 2013-369, ss. 1, 21, 25; 2014-119, s. 12(a); 2015-5, s. 1; 2015-195, s. 1(a); 2015-215, s. 2.5; 2015-264, s. 3; 2017-186, s. 2(hh).

Local Modification.

Caswell: 1941, c. 90; Halifax: 1943, c. 34.

Cross References.

As to going armed on Sunday, see G.S. 103-2 .

Effect of Amendments.

Session Laws 2005-232, ss. 4 and 5, effective July 28, 2005, added subdivision (a1)(3) and subsection (b2).

Session Laws 2005-337, s. 1, effective August 26, 2005, in subdivision (b)(2), deleted “while in the discharge of their official duties” following “States”; and rewrote subdivision (b)(5).

Session Laws 2006-259, s. 5(a), effective October 1, 2006, substituted “any county, city, town, or company police agency charged” for “any county, city, or town, charged” in subdivision (b)(4).

Session Laws 2009-281, s. 1, effective July 10, 2009, substituted “National Guard” for “national guard” in subdivision (b)(3).

Session Laws 2011-183, s. 127(a), effective June 20, 2011, substituted “Armed Forces” for “armed forces” in (b)(1).

Session Laws 2011-243, s. 1, effective December 1, 2011, added subdivision (b)(6).

Session Laws 2011-268, s. 3, effective December 1, 2011, added “and the person is carrying the concealed handgun in accordance with the scope of the concealed handgun permit as set out in G.S. 14-415.11(c) ” in subdivision (a1)(2); and added subdivisions (b)(4a) through (b)(4c). For applicability, see Editor’s note.

Session Laws 2013-369, ss. 1, 21, and 25, effective October 1, 2013, added subsection (a2); rewrote the introductory language of subdivision (b)(4b), which formerly read “Any person who meets all of the following conditions”; deleted former sub-subdivision (b)(4b)a. which read: “Is a qualified retired law enforcement officer as defined in G.S. 14-415.10 ” and redesignated former sub-subdivision (b)(4b)b. as present sub-subdivision (b)(4b)a.; added present sub-subdivision (b)(4b)b.; and added subdivisions (b)(4d) and (b)(4e). For applicability, see editor’s note.

Session Laws 2014-119, s. 12(a), effective December 1, 2014, in subsection (c), substituted “offense and a Class H felony for a second or subsequent offense.” for “offense. A second or subsequent offense is punishable as a Class I felony”; and added the last sentence. See Editor’s note for applicability.

Session Laws 2015-5, s. 1, effective December 1, 2015, added subdivision (b)(9). For applicability, see editor’s note.

Session Laws 2015-195, s. 1(a), effective July 1, 2015, added the last sentence of subdivision (b)(4a); and added subdivisions (b)(7) and (b)(8). For applicability, see editor’s note.

Session Laws 2015-215, s. 2.5, effective August 18, 2015, added subdivision (b)(3a).

Session Laws 2015-264, s. 3, effective October 1, 2015, inserted “or her” following “his” in subsections (a) and (a1); substituted “shuriken” for “shurikin” in subsection (a); and substituted “the defendant” for “he” in subdivision (b1)(2).

Session Laws 2017-186, s. 2(hh), effective December 1, 2017, inserted “and Juvenile Justice” in the second sentence of subdivision (b)(9).

Legal Periodicals.

For note on control of firearms, see 35 N.C.L. Rev. 149 (1956).

For article, “When ‘It Depends’ Isn’t Good Enough: The Problems Caused by the Supreme Court of North Carolina’s Decision in State v. Mbacke,” see 91 N.C.L. Rev. 1404 (2013).

For article, “Heller After Ten Years: Foreword,” see 40 Campbell L. Rev. 299 (2018).

For article, “Style, Substance, and the Right to Keep and Bear Assault Weapons,” see 40 Campbell L. Rev. 301 (2018).

For article, “The First Congressional Debate on Public Carry and What It Tells Us About Firearm Regionalism,” see 40 Campbell L. Rev. 335 (2018).

For article, “Heller in the Lower Courts,” see 40 Campbell L. Rev. 399 (2018).

For article, “Heller and Public Carry Restrictions,” see 40 Campbell L. Rev. 431 (2018).

For article, “Heller and ‘Assault Weapons’,” see 40 Campbell L. Rev. 461 (2018).

For comment, “When One Word Changes Everything: How the Unitary Concept Dismantles the Basis of Terry Frisks,” see 97 N.C.L. Rev. 192 (2018).

CASE NOTES

Analysis

I.General Consideration

Purpose. —

The purpose of this section is to reduce the likelihood that a concealed weapon may be resorted to in a fit of anger. State v. Gainey, 273 N.C. 620 , 160 S.E.2d 685, 1968 N.C. LEXIS 640 (1968).

The exception in G.S. 14-269(a1)(2) was a defense, not an essential element of the crime of carrying a concealed weapon, and therefore, an indictment is not insufficient for failing to charge it. State v. Mather, 221 N.C. App. 593, 728 S.E.2d 430, 2012 N.C. App. LEXIS 872 (2012).

II.Elements of the Offense

Elements Generally. —

In order to be guilty of violating this section the accused must be off his own premises, carrying a deadly weapon, and the weapon must be concealed about his person. State v. Williamson, 238 N.C. 652 , 78 S.E.2d 763, 1953 N.C. LEXIS 607 (1953).

In defendant’s prosecution for carrying a concealed weapon, the admission of testimony about the effect of hollow point bullets, which were found in the weapons seized from defendant and defendant’s associate, was erroneous because such testimony was irrelevant under G.S. 8C-1-401 as to whether defendant possessed a concealed weapon under G.S. 14-269(a1), but the error was harmless because the evidence of defendant’s guilt was overwhelming, so defendant could not show that defendant was prejudiced. State v. Gayton, 185 N.C. App. 122, 648 S.E.2d 275, 2007 N.C. App. LEXIS 1739 (2007).

Concealment Is Gist of Offense. —

The mischief provided against is the practice of wearing weapons concealed about the person to be used upon any emergency. State v. Broadnax, 91 N.C. 543 , 1884 N.C. LEXIS 113 (1884).

Concealment of the weapon must be shown. State v. Cobb, 18 N.C. App. 221, 196 S.E.2d 521, 1973 N.C. App. LEXIS 1820 (1973), rev'd, 284 N.C. 573 , 201 S.E.2d 878, 1974 N.C. LEXIS 1289 (1974).

If the weapon was carried openly, the defendant could not be guilty under this section. State v. Brown, 125 N.C. 704 , 34 S.E. 549, 1899 N.C. LEXIS 291 (1899).

And Is Question for Jury. —

Whether, in a given case, the weapon is concealed from the public and such presumption of guilty intent is rebutted by the mode of carrying the weapon, are questions for the jury. State v. Reams, 121 N.C. 556 , 27 S.E. 1004, 1897 N.C. LEXIS 277 (1897). See State v. Lilly, 116 N.C. 1049 , 21 S.E. 563, 1895 N.C. LEXIS 324 (1895).

Prima Facie Evidence of Concealment. —

The fact that defendant had a pistol about his person, off of his own premises, was prima facie evidence of concealment, which shifted the burden upon the defendant to rebut or disprove. State v. McManus, 89 N.C. 555 , 1883 N.C. LEXIS 290 (1883); State v. Lilly, 116 N.C. 1049 , 21 S.E. 563, 1895 N.C. LEXIS 324 (1895); State v. Reams, 121 N.C. 556 , 27 S.E. 1004, 1897 N.C. LEXIS 277 (1897); State v. Hamby, 126 N.C. 1066 , 35 S.E. 614, 1900 N.C. LEXIS 362 (1900).

The possession of a pistol by one on the premises of another is not alone sufficient to convict of carrying a concealed weapon in violation of this section, although the statute makes such possession prima facie evidence of the concealment thereof. State v. Vanderburg, 200 N.C. 713 , 158 S.E. 248, 1931 N.C. LEXIS 419 (1931).

Affirmative Showing Required in Rebuttal. —

To rebut the statutory presumption arising from the concealment, the absence of intent to conceal must be affirmatively found. State v. Gilbert, 87 N.C. 527 , 1882 N.C. LEXIS 112 (1882); State v. Brown, 125 N.C. 704 , 34 S.E. 549, 1899 N.C. LEXIS 291 (1899).

Intent Required. —

The intent to carry, not the intent to use, determines the guilt. State v. Reams, 121 N.C. 556 , 27 S.E. 1004, 1897 N.C. LEXIS 277 (1897).

To conceal a weapon means something more than the mere act of having it where it may not be seen. It implies an assent of the mind and a purpose to so carry it that it may not be seen. State v. Gilbert, 87 N.C. 527 , 1882 N.C. LEXIS 112 (1882).

Defense of No Intent to Conceal. —

The question is as to the manner of carrying, whether concealed or not, and it might be shown, in defense, that there was no intent to conceal it. State v. Brown, 125 N.C. 704 , 34 S.E. 549, 1899 N.C. LEXIS 291 (1899).

When Intent Is Immaterial. —

But if from defendant’s own testimony it appears that he necessarily knew that he was carrying it concealed, intent is immaterial. State v. Simmons, 143 N.C. 613 , 56 S.E. 701, 1907 N.C. LEXIS 81 (1907).

“About His Person”. —

The language is not “concealed on his person,” but “concealed about his person”; that is, concealed near, in close proximity to him, and within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive. It makes no difference how it is concealed, so it is on or near to and within the reach and control of the person charged. State v. Gainey, 273 N.C. 620 , 160 S.E.2d 685, 1968 N.C. LEXIS 640 (1968).

The language of the statute is, not “concealed on his person,” but “concealed about his person,” and hence, if the weapon be within reach and control of the defendant, it is sufficient to bring the case within the meaning of the statute. State v. McManus, 89 N.C. 555 , 1883 N.C. LEXIS 290 (1883).

To be criminal, the weapon must be concealed, not necessarily on the person of the accused, but in such position as gives him ready access to it. State v. Gainey, 273 N.C. 620 , 160 S.E.2d 685, 1968 N.C. LEXIS 640 (1968).

Evidence was insufficient to support defendant’s conviction for carrying a concealed weapon in violation of G.S. 14-269(a) as the State failed to present evidence that the backpack in which the weapon was concealed was within arms reach of the driver’s seat, where defendant was located, and thus did not prove that the weapon was “about his person.” State v. Soles, 191 N.C. App. 241, 662 S.E.2d 564, 2008 N.C. App. LEXIS 1194 (2008).

Evidence was sufficient to establish that a razor blade discovered on the underside of a table in an adjoining room had been about defendant’s person, as on the same day the razor blade was found defendant was seated at the table under which the blade was discovered and defendant had regularly scheduled access to the room in which the blade was found. State v. Hill, 227 N.C. App. 371, 741 S.E.2d 911, 2013 N.C. App. LEXIS 529 (2013), writ denied, 2014 N.C. App. LEXIS 1262 (N.C. Ct. App. Mar. 21, 2014).

Carrying on Own Premises. —

That defendant was not on his own premises when discovered carrying a concealed weapon is an element of this section. State v. Stanfield, 19 N.C. App. 622, 199 S.E.2d 741, 1973 N.C. App. LEXIS 1722 (1973).

The use of the words, “on his own premises,” and not being “on his own lands,” in this section, shows an intention to restrict the right to carry concealed weapons to those who are in the privacy of their own premises and not likely to be thrown into contact with the public, nor tempted, on a sudden quarrel, to use the great advantage a concealed weapon gives. State v. Perry, 120 N.C. 580 , 26 S.E. 1008, 26 S.E. 915, 1897 N.C. LEXIS 135 (1897).

Time Not Essence of Offense. —

Time is not the essence of the offense of carrying a concealed weapon, and it may be shown at a previous time to that alleged in the bill. State v. Spencer, 185 N.C. 765 , 117 S.E. 803, 1923 N.C. LEXIS 160 (1923).

Apprehension of Assault No Defense. —

Carrying concealed weapons in reasonable apprehension of deadly assaults is not justification of a violation of the statutory offense, but in aggravation thereof, and may be considered by the trial judge in imposing the sentence, according to the discretion given him therein by this section. State v. Woodlief, 172 N.C. 885 , 90 S.E. 137, 1916 N.C. LEXIS 439 (1916).

Nor Is Acting upon Advice of Attorney. —

A person acting in ignorance of the law in good faith and upon advice of the clerk of the court or of an attorney, but in violation of this section, is not excused. State v. Simmons, 143 N.C. 613 , 56 S.E. 701, 1907 N.C. LEXIS 81 (1907).

Mens Rea. —

Lack of a mens rea element in G.S. 14-269.2 did not offend the equal protection requirements of N.C. Const. Art. I, § 19, or U.S. Const. amend. XIV, § 1, because the distinction between those exempt from prosecution under G.S. 14-269.2 (g) and G.S. 14-269(b) and those subject to prosecution, despite having no criminal intent, did not violate equal protection requirements as the statutory exemptions bore a rational relationship to a legitimate governmental interest, as they struck an appropriate balance between the safety of children and the furtherance of education. State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

III.Persons Excepted

Night Watchman. —

A private night watchman is not guilty of carrying a concealed weapon, under this section, while on duty upon the premises he is employed to watch. State v. Anderson, 129 N.C. 521 , 39 S.E. 824, 1901 N.C. LEXIS 109 (1901).

Officials of Transportation Companies. —

The exception in this section does not apply to the officials of corporations, such as turnpikes, railroads and others, which invite the public to use their lines of travel. State v. Perry, 120 N.C. 580 , 26 S.E. 1008, 26 S.E. 915, 1897 N.C. LEXIS 135 (1897).

United States Mail Carrier. —

A United States mail carrier is indictable under this section for carrying a concealed weapon while carrying the mail and while returning to his home after delivering the mail. State v. Boone, 132 N.C. 1107 , 44 S.E. 595, 1903 N.C. LEXIS 395 (1903).

Bail Bondsman. —

When defendant was prosecuted under G.S. 14-269.2 , he was not exempt from felony liability under G.S. 14-269.2 (g)(1a) or G.S. 14-269(b)(2), which exempted United States civil and law enforcement officers and State, county, city or town officers, because, as a bail bondsman, he was not an officer of the State, but was a surety regulated by the Commissioner of Insurance, under G.S. 58-71-5 , and his statutory right of arrest, under G.S. 58-71-30 , did not create law enforcement officer status but codified the common law governing the surety-principal relationship between bondsmen and the criminally accused. State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

IV.Illustrative Cases

“Ordinary Pocket Knife.” —

Knife about four and one-half inches in overall length which, when folded, was clearly designed for carrying in a pocket or purse, was an “ordinary pocketknife” as defined by this section. In re Dale B., 96 N.C. App. 375, 385 S.E.2d 521, 1989 N.C. App. LEXIS 994 (1989).

Butcher Knife. —

This section making it indictable for one to carry concealed about his person any pistol, bowie knife, razor or other deadly weapon of like kind, embraces a butcher’s knife. State v. Erwin, 91 N.C. 545 , 1884 N.C. LEXIS 114 (1884).

Revolver in Bag in Back Seat. —

Where police officers stopped defendant’s car to make a routine driver’s license check and defendant removed revolver from a bag in the backseat, the police properly arrested him without a warrant inasmuch as they had reasonable ground to believe defendant was committing a misdemeanor — carrying a concealed weapon in violation of this section — in their presence. State v. White, 18 N.C. App. 31, 195 S.E.2d 576, 1973 N.C. App. LEXIS 1770 , cert. denied, 283 N.C. 587 , 196 S.E.2d 811, 1973 N.C. LEXIS 1021 (1973).

Gun Under Driver’s Seat. —

Evidence of defendant’s guilty knowledge and intent was quite plain, where he was the driver of a car involved in a collision, witnesses to accident, who prevented his escape, saw him reach under the driver’s seat as though placing something there, and that is where the patrolman found a gun. State v. Jordan, 75 N.C. App. 637, 331 S.E.2d 232, 1985 N.C. App. LEXIS 3709 (1985).

Pistol in Hip Pocket with Coat on Shoulder. —

Upon evidence tending to show that the defendant had a pistol with the butt end projecting above his hip pocket, and with his coat off and carried upon his shoulder, it is sufficient for the determination of the jury, upon the issue of defendant’s guilt in having carried a concealed weapon in violation of this section. State v. Mangum, 187 N.C. 477 , 121 S.E. 765, 1924 N.C. LEXIS 315 (1924).

Carrying Pistol to Deliver to Another. —

One is not guilty of a violation of this section where it appears that he had a pistol in his pocket for the purpose of delivering it to the owner who had sent him for it. State v. Broadnax, 91 N.C. 543 , 1884 N.C. LEXIS 113 (1884).

Sitting on Firearm. —

Where officer approached the defendant’s car and, using his flashlight, looked into the interior, viewed the empty holster next to the defendant, asked the defendant where his gun was and was told by the defendant that the defendant was sitting on the gun, the officer then had probable cause to arrest the defendant for carrying a concealed weapon. State v. Brooks, 337 N.C. 132 , 446 S.E.2d 579, 1994 N.C. LEXIS 418 (1994).

Persons Not “On Premises”. —

A superintendent or overseer of a department of a cotton mill, is not, while therein, “on his premises,” within the meaning of this section. State v. Bridgers, 169 N.C. 309 , 84 S.E. 689, 1915 N.C. LEXIS 213 (1915).

A person in his own automobile on a public highway is not on his own premises within the meaning of this section. State v. Gainey, 273 N.C. 620 , 160 S.E.2d 685, 1968 N.C. LEXIS 640 (1968).

A mere servant or hireling who carries concealed weapons on the premises of his employer is indictable. State v. Deyton, 119 N.C. 880 , 26 S.E. 159, 1896 N.C. LEXIS 401 (1896).

V.Practice and Procedure

Warrant Must State That Defendant Carried Weapon Off His Own Premises. —

In prosecution for carrying a concealed weapon, the warrant is held fatally defective in failing to embrace in the charge the essential element of the offense that the weapon was carried concealed by defendant off his own premises, the warrant itself excluding the charge that the weapon was carried off the premises by charging that defendant carried an unconcealed weapon off his premises. State v. Bradley, 210 N.C. 290 , 186 S.E. 240, 1936 N.C. LEXIS 87 (1936).

Information Held Sufficient. —

An information charging that defendant, on a specified date, unlawfully and willfully carried a concealed weapon, to wit, a pistol, about his person, the defendant not being at the time on his own premises, is an accurate and sufficient charge of violating this section. State v. Caldwell, 269 N.C. 521 , 153 S.E.2d 34, 1967 N.C. LEXIS 1099 (1967).

Indictment Facially Valid. —

Trial court did not commit jurisdictional error by entering judgment against defendant for the offense of carrying a concealed weapon after the jury was instructed that it could find defendant guilty only upon a finding that he intentionally carried and concealed about his person one or more knives, while the indictment alleged only that defendant unlawfully carried a concealed weapon, a metallic set of knuckles, because the mention of knives was inadvertent and did not affect the State’s burden of proof or constitute a substantial change or variance from the indictment; the indictment charging carrying a concealed weapon pursuant to G.S. 14-269(a) was valid on its face, and the additional language regarding metallic knuckles was mere surplusage and not an essential element of the crime. State v. Bollinger, 192 N.C. App. 241, 665 S.E.2d 136, 2008 N.C. App. LEXIS 1518 (2008), aff'd, 363 N.C. 251 , 675 S.E.2d 333, 2009 N.C. LEXIS 344 (2009).

Former Conviction of Assault. —

A conviction of assault with a deadly weapon will not sustain a plea of former conviction in a subsequent trial for carrying a concealed weapon. State v. Robinson, 116 N.C. 1046 , 21 S.E. 701, 1895 N.C. LEXIS 323 (1895).

Motion to Suppress. —

Trial court’s ruling on defendant’s motion to suppress was based on improper findings of fact regarding a material conflict in the evidence as to a firearm’s accessibility in a vehicle defendant was driving, and, in the absence of appropriate findings of fact, the trial court improperly concluded that the firearm was readily accessible so as to objectively create probable cause that the firearm was evidence of a crime. On remand the trial court to make adequate findings of fact resolving the material conflict as to the firearm’s accessibility. State v. Newborn, 2021-NCCOA-426, 279 N.C. App. 42, 864 S.E.2d 752, 2021- NCCOA-426, 2021 N.C. App. LEXIS 450 (2021).

Punishment. —

When the punishment does not exceed the limits fixed by this section, it cannot be considered cruel and unusual punishment in a constitutional sense. State v. Caldwell, 269 N.C. 521 , 153 S.E.2d 34, 1967 N.C. LEXIS 1099 (1967).

Sufficient Evidence. —

When defendant was convicted of carrying a concealed weapon, G.S. 14-269(a1), and possession of a firearm by a convicted felon, G.S. 14-415.1(a) , sufficient evidence supported a finding that defendant actually or constructively possessed the firearm at issue because the gun was found in a van driven by defendant, the gun was found on the floor next to the driver’s seat, defendant admitted he owned the gun, a witness testified he saw defendant in possession of the gun on the afternoon in question, and a police detective corroborated the witness’s testimony. State v. Best, 214 N.C. App. 39, 713 S.E.2d 556, 2011 N.C. App. LEXIS 1638 (2011).

OPINIONS OF ATTORNEY GENERAL

Possession of an Unconcealed Pistol in an Automobile Not Violation of Statute. — See opinion of Attorney General to Honorable Albert Jackson, Sheriff of Henderson County, 41 N.C. Op. Att'y Gen. 207 (1971).

§ 14-269. Carrying concealed weapons. [Effective January 1, 2023]

  1. It shall be unlawful for any person willfully and intentionally to carry concealed about his or her person any bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shuriken, stun gun, or other deadly weapon of like kind, except when the person is on the person’s own premises. (a1) It shall be unlawful for any person willfully and intentionally to carry concealed about his or her person any pistol or gun except in the following circumstances:
    1. The person is on the person’s own premises.
    2. The deadly weapon is a handgun, the person has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24 , and the person is carrying the concealed handgun in accordance with the scope of the concealed handgun permit as set out in G.S. 14-415.11(c) .
    3. The deadly weapon is a handgun and the person is a military permittee as defined under G.S. 14-415.10(2a) who provides to the law enforcement officer proof of deployment as required under G.S. 14-415.11(a) .

      (a2) This prohibition does not apply to a person who has a concealed handgun permit issued in accordance with Article 54B of this Chapter, has a concealed handgun permit considered valid under G.S. 14-415.24 , or is exempt from obtaining a permit pursuant to G.S. 14-415.25 , provided the weapon is a handgun, is in a closed compartment or container within the person’s locked vehicle, and the vehicle is in a parking area that is owned or leased by State government. A person may unlock the vehicle to enter or exit the vehicle, provided the handgun remains in the closed compartment at all times and the vehicle is locked immediately following the entrance or exit.

  2. This prohibition shall not apply to the following persons:
    1. Officers and enlisted personnel of the Armed Forces of the United States when in discharge of their official duties as such and acting under orders requiring them to carry arms and weapons;
    2. Civil and law enforcement officers of the United States;
    3. Officers and soldiers of the militia and the National Guard when called into actual service; (3a) A member of the North Carolina National Guard who has been designated in writing by the Adjutant General, State of North Carolina, who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24 , and is acting in the discharge of his or her official duties, provided that the member does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the member’s body.
    4. Officers of the State, or of any county, city, town, or company police agency charged with the execution of the laws of the State, when acting in the discharge of their official duties;

      (4a) Any person who is a district attorney, an assistant district attorney, or an investigator employed by the office of a district attorney and who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24 ; provided that the person shall not carry a concealed weapon at any time while in a courtroom or while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body. The district attorney, assistant district attorney, or investigator shall secure the weapon in a locked compartment when the weapon is not on the person of the district attorney, assistant district attorney, or investigator. Notwithstanding the provisions of this subsection, a district attorney may carry a concealed weapon while in a courtroom;

      (4b) Any person who is a qualified retired law enforcement officer as defined in G.S. 14-415.10 and meets any one of the following conditions:

      1. Is the holder of a concealed handgun permit in accordance with Article 54B of this Chapter.
      2. Is exempt from obtaining a permit pursuant to G.S. 14-415.25 .
      3. Is certified by the North Carolina Criminal Justice Education and Training Standards Commission pursuant to G.S. 14-415.26 ;

        (4c) Detention personnel or correctional officers employed by the State or a unit of local government who park a vehicle in a space that is authorized for their use in the course of their duties may transport a firearm to the parking space and store that firearm in the vehicle parked in the parking space, provided that: (i) the firearm is in a closed compartment or container within the locked vehicle, or (ii) the firearm is in a locked container securely affixed to the vehicle;

        (4d) Any person who is a North Carolina district court judge, North Carolina superior court judge, or a North Carolina magistrate and who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24; provided that the person shall not carry a concealed weapon at any time while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body. The judge or magistrate shall secure the weapon in a locked compartment when the weapon is not on the person of the judge or magistrate;

        (4e) Any person who is serving as a clerk of court or as a register of deeds and who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24; provided that the person shall not carry a concealed weapon at any time while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body. The clerk of court or register of deeds shall secure the weapon in a locked compartment when the weapon is not on the person of the clerk of court or register of deeds. This subdivision does not apply to assistants, deputies, or other employees of the clerk of court or register of deeds;

    5. Sworn law-enforcement officers, when off-duty, provided that an officer does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the officer’s body;
    6. State probation or parole certified officers, when off-duty, provided that an officer does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the officer’s body.
    7. A person employed by the Department of Public Safety who has been designated in writing by the Secretary of the Department, who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24, and has in the person’s possession written proof of the designation by the Secretary of the Department, provided that the person shall not carry a concealed weapon at any time while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body.
    8. Any person who is an administrative law judge described in Article 60 of Chapter 7A of the General Statutes and who has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24, provided that the person shall not carry a concealed weapon at any time while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the person’s body.
    9. State correctional officers, when off-duty, provided that an officer does not carry a concealed weapon while consuming alcohol or an unlawful controlled substance or while alcohol or an unlawful controlled substance remains in the officer’s body. If the concealed weapon is a handgun, the correctional officer must meet the firearms training standards of the Department of Adult Correction.

      (b1) It is a defense to a prosecution under this section that:

      (1) The weapon was not a firearm;

      (2) The defendant was engaged in, or on the way to or from, an activity in which the defendant legitimately used the weapon;

      (3) The defendant possessed the weapon for that legitimate use; and

      (4) The defendant did not use or attempt to use the weapon for an illegal purpose.

      The burden of proving this defense is on the defendant.

      (b2) It is a defense to a prosecution under this section that:

      (1) The deadly weapon is a handgun;

      (2) The defendant is a military permittee as defined under G.S. 14-415.10 (2a); and

      (3) The defendant provides to the court proof of deployment as defined under G.S. 14-415.10(3a).

  3. Any person violating the provisions of subsection (a) of this section shall be guilty of a Class 2 misdemeanor. Any person violating the provisions of subsection (a1) of this section shall be guilty of a Class 2 misdemeanor for the first offense and a Class H felony for a second or subsequent offense. A violation of subsection (a1) of this section punishable under G.S. 14-415.21(a) is not punishable under this section.
  4. This section does not apply to an ordinary pocket knife carried in a closed position. As used in this section, “ordinary pocket knife” means a small knife, designed for carrying in a pocket or purse, that has its cutting edge and point entirely enclosed by its handle, and that may not be opened by a throwing, explosive, or spring action.

History. Code, s. 1005; Rev., s. 3708; 1917, c. 76; 1919, c. 197, s. 8; C.S., s. 4410; 1923, c. 57; Ex. Sess. 1924, c. 30; 1929, cc. 51, 224; 1947, c. 459; 1949, c. 1217; 1959, c. 1073, s. 1; 1965, c. 954, s. 1; 1969, c. 1224, s. 7; 1977, c. 616; 1981, c. 412, s. 4; c. 747, s. 66; 1983, c. 86; 1985, c. 432, ss. 1-3; 1993, c. 539, s. 163; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 398, s. 2; 1997-238, s. 1; 2003-199, s. 2; 2005-232, ss. 4, 5; 2005-337, s. 1; 2006-259, s. 5(a); 2009-281, s. 1; 2011-183, s. 127(a); 2011-243, s. 1; 2011-268, s. 3; 2013-369, ss. 1, 21, 25; 2014-119, s. 12(a); 2015-5, s. 1; 2015-195, s. 1(a); 2015-215, s. 2.5; 2015-264, s. 3; 2017-186, s. 2(hh); 2021-180, s. 19C.9.(mm).

Local Modification.

Caswell: 1941, c. 90; Halifax: 1943, c. 34.

Cross References.

As to going armed on Sunday, see G.S. 103-2 .

Editor's Note.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to subdivision (b)(9) of this section by Session Laws 2021-180, s. 19C.9(mm), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2005-232, ss. 4 and 5, effective July 28, 2005, added subdivision (a1)(3) and subsection (b2).

Session Laws 2005-337, s. 1, effective August 26, 2005, in subdivision (b)(2), deleted “while in the discharge of their official duties” following “States”; and rewrote subdivision (b)(5).

Session Laws 2006-259, s. 5(a), effective October 1, 2006, substituted “any county, city, town, or company police agency charged” for “any county, city, or town, charged” in subdivision (b)(4).

Session Laws 2009-281, s. 1, effective July 10, 2009, substituted “National Guard” for “national guard” in subdivision (b)(3).

Session Laws 2011-183, s. 127(a), effective June 20, 2011, substituted “Armed Forces” for “armed forces” in (b)(1).

Session Laws 2011-243, s. 1, effective December 1, 2011, added subdivision (b)(6).

Session Laws 2011-268, s. 3, effective December 1, 2011, added “and the person is carrying the concealed handgun in accordance with the scope of the concealed handgun permit as set out in G.S. 14-415.11(c) ” in subdivision (a1)(2); and added subdivisions (b)(4a) through (b)(4c). For applicability, see Editor’s note.

Session Laws 2013-369, ss. 1, 21, and 25, effective October 1, 2013, added subsection (a2); rewrote the introductory language of subdivision (b)(4b), which formerly read “Any person who meets all of the following conditions”; deleted former sub-subdivision (b)(4b)a. which read: “Is a qualified retired law enforcement officer as defined in G.S. 14-415.10 ” and redesignated former sub-subdivision (b)(4b)b. as present sub-subdivision (b)(4b)a.; added present sub-subdivision (b)(4b)b.; and added subdivisions (b)(4d) and (b)(4e). For applicability, see editor’s note.

Session Laws 2014-119, s. 12(a), effective December 1, 2014, in subsection (c), substituted “offense and a Class H felony for a second or subsequent offense.” for “offense. A second or subsequent offense is punishable as a Class I felony”; and added the last sentence. See Editor’s note for applicability.

Session Laws 2015-5, s. 1, effective December 1, 2015, added subdivision (b)(9). For applicability, see editor’s note.

Session Laws 2015-195, s. 1(a), effective July 1, 2015, added the last sentence of subdivision (b)(4a); and added subdivisions (b)(7) and (b)(8). For applicability, see editor’s note.

Session Laws 2015-215, s. 2.5, effective August 18, 2015, added subdivision (b)(3a).

Session Laws 2015-264, s. 3, effective October 1, 2015, inserted “or her” following “his” in subsections (a) and (a1); substituted “shuriken” for “shurikin” in subsection (a); and substituted “the defendant” for “he” in subdivision (b1)(2).

Session Laws 2017-186, s. 2(hh), effective December 1, 2017, inserted “and Juvenile Justice” in the second sentence of subdivision (b)(9).

Session Laws 2021-180, s. 19C.9(mm), substituted “the Department of Adult Correction.” for “the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.” in subdivision (b)(9). For effective date and applicability, see editor's note.

Legal Periodicals.

For note on control of firearms, see 35 N.C.L. Rev. 149 (1956).

For article, “When ‘It Depends’ Isn’t Good Enough: The Problems Caused by the Supreme Court of North Carolina’s Decision in State v. Mbacke,” see 91 N.C.L. Rev. 1404 (2013).

For article, “Heller After Ten Years: Foreword,” see 40 Campbell L. Rev. 299 (2018).

For article, “Style, Substance, and the Right to Keep and Bear Assault Weapons,” see 40 Campbell L. Rev. 301 (2018).

For article, “The First Congressional Debate on Public Carry and What It Tells Us About Firearm Regionalism,” see 40 Campbell L. Rev. 335 (2018).

For article, “Heller in the Lower Courts,” see 40 Campbell L. Rev. 399 (2018).

For article, “Heller and Public Carry Restrictions,” see 40 Campbell L. Rev. 431 (2018).

For article, “Heller and ‘Assault Weapons’,” see 40 Campbell L. Rev. 461 (2018).

For comment, “When One Word Changes Everything: How the Unitary Concept Dismantles the Basis of Terry Frisks,” see 97 N.C.L. Rev. 192 (2018).

CASE NOTES

Analysis

I.General Consideration

Purpose. —

The purpose of this section is to reduce the likelihood that a concealed weapon may be resorted to in a fit of anger. State v. Gainey, 273 N.C. 620 , 160 S.E.2d 685, 1968 N.C. LEXIS 640 (1968).

The exception in G.S. 14-269(a1)(2) was a defense, not an essential element of the crime of carrying a concealed weapon, and therefore, an indictment is not insufficient for failing to charge it. State v. Mather, 221 N.C. App. 593, 728 S.E.2d 430, 2012 N.C. App. LEXIS 872 (2012).

II.Elements of the Offense

Elements Generally. —

In order to be guilty of violating this section the accused must be off his own premises, carrying a deadly weapon, and the weapon must be concealed about his person. State v. Williamson, 238 N.C. 652 , 78 S.E.2d 763, 1953 N.C. LEXIS 607 (1953).

In defendant’s prosecution for carrying a concealed weapon, the admission of testimony about the effect of hollow point bullets, which were found in the weapons seized from defendant and defendant’s associate, was erroneous because such testimony was irrelevant under G.S. 8C-1-401 as to whether defendant possessed a concealed weapon under G.S. 14-269(a1), but the error was harmless because the evidence of defendant’s guilt was overwhelming, so defendant could not show that defendant was prejudiced. State v. Gayton, 185 N.C. App. 122, 648 S.E.2d 275, 2007 N.C. App. LEXIS 1739 (2007).

Concealment Is Gist of Offense. —

The mischief provided against is the practice of wearing weapons concealed about the person to be used upon any emergency. State v. Broadnax, 91 N.C. 543 , 1884 N.C. LEXIS 113 (1884).

Concealment of the weapon must be shown. State v. Cobb, 18 N.C. App. 221, 196 S.E.2d 521, 1973 N.C. App. LEXIS 1820 (1973), rev'd, 284 N.C. 573 , 201 S.E.2d 878, 1974 N.C. LEXIS 1289 (1974).

If the weapon was carried openly, the defendant could not be guilty under this section. State v. Brown, 125 N.C. 704 , 34 S.E. 549, 1899 N.C. LEXIS 291 (1899).

And Is Question for Jury. —

Whether, in a given case, the weapon is concealed from the public and such presumption of guilty intent is rebutted by the mode of carrying the weapon, are questions for the jury. State v. Reams, 121 N.C. 556 , 27 S.E. 1004, 1897 N.C. LEXIS 277 (1897). See State v. Lilly, 116 N.C. 1049 , 21 S.E. 563, 1895 N.C. LEXIS 324 (1895).

Prima Facie Evidence of Concealment. —

The fact that defendant had a pistol about his person, off of his own premises, was prima facie evidence of concealment, which shifted the burden upon the defendant to rebut or disprove. State v. McManus, 89 N.C. 555 , 1883 N.C. LEXIS 290 (1883); State v. Lilly, 116 N.C. 1049 , 21 S.E. 563, 1895 N.C. LEXIS 324 (1895); State v. Reams, 121 N.C. 556 , 27 S.E. 1004, 1897 N.C. LEXIS 277 (1897); State v. Hamby, 126 N.C. 1066 , 35 S.E. 614, 1900 N.C. LEXIS 362 (1900).

The possession of a pistol by one on the premises of another is not alone sufficient to convict of carrying a concealed weapon in violation of this section, although the statute makes such possession prima facie evidence of the concealment thereof. State v. Vanderburg, 200 N.C. 713 , 158 S.E. 248, 1931 N.C. LEXIS 419 (1931).

Affirmative Showing Required in Rebuttal. —

To rebut the statutory presumption arising from the concealment, the absence of intent to conceal must be affirmatively found. State v. Gilbert, 87 N.C. 527 , 1882 N.C. LEXIS 112 (1882); State v. Brown, 125 N.C. 704 , 34 S.E. 549, 1899 N.C. LEXIS 291 (1899).

Intent Required. —

The intent to carry, not the intent to use, determines the guilt. State v. Reams, 121 N.C. 556 , 27 S.E. 1004, 1897 N.C. LEXIS 277 (1897).

To conceal a weapon means something more than the mere act of having it where it may not be seen. It implies an assent of the mind and a purpose to so carry it that it may not be seen. State v. Gilbert, 87 N.C. 527 , 1882 N.C. LEXIS 112 (1882).

Defense of No Intent to Conceal. —

The question is as to the manner of carrying, whether concealed or not, and it might be shown, in defense, that there was no intent to conceal it. State v. Brown, 125 N.C. 704 , 34 S.E. 549, 1899 N.C. LEXIS 291 (1899).

When Intent Is Immaterial. —

But if from defendant’s own testimony it appears that he necessarily knew that he was carrying it concealed, intent is immaterial. State v. Simmons, 143 N.C. 613 , 56 S.E. 701, 1907 N.C. LEXIS 81 (1907).

“About His Person”. —

The language is not “concealed on his person,” but “concealed about his person”; that is, concealed near, in close proximity to him, and within his convenient control and easy reach, so that he could promptly use it, if prompted to do so by any violent motive. It makes no difference how it is concealed, so it is on or near to and within the reach and control of the person charged. State v. Gainey, 273 N.C. 620 , 160 S.E.2d 685, 1968 N.C. LEXIS 640 (1968).

The language of the statute is, not “concealed on his person,” but “concealed about his person,” and hence, if the weapon be within reach and control of the defendant, it is sufficient to bring the case within the meaning of the statute. State v. McManus, 89 N.C. 555 , 1883 N.C. LEXIS 290 (1883).

To be criminal, the weapon must be concealed, not necessarily on the person of the accused, but in such position as gives him ready access to it. State v. Gainey, 273 N.C. 620 , 160 S.E.2d 685, 1968 N.C. LEXIS 640 (1968).

Evidence was insufficient to support defendant’s conviction for carrying a concealed weapon in violation of G.S. 14-269(a) as the State failed to present evidence that the backpack in which the weapon was concealed was within arms reach of the driver’s seat, where defendant was located, and thus did not prove that the weapon was “about his person.” State v. Soles, 191 N.C. App. 241, 662 S.E.2d 564, 2008 N.C. App. LEXIS 1194 (2008).

Evidence was sufficient to establish that a razor blade discovered on the underside of a table in an adjoining room had been about defendant’s person, as on the same day the razor blade was found defendant was seated at the table under which the blade was discovered and defendant had regularly scheduled access to the room in which the blade was found. State v. Hill, 227 N.C. App. 371, 741 S.E.2d 911, 2013 N.C. App. LEXIS 529 (2013), writ denied, 2014 N.C. App. LEXIS 1262 (N.C. Ct. App. Mar. 21, 2014).

Carrying on Own Premises. —

That defendant was not on his own premises when discovered carrying a concealed weapon is an element of this section. State v. Stanfield, 19 N.C. App. 622, 199 S.E.2d 741, 1973 N.C. App. LEXIS 1722 (1973).

The use of the words, “on his own premises,” and not being “on his own lands,” in this section, shows an intention to restrict the right to carry concealed weapons to those who are in the privacy of their own premises and not likely to be thrown into contact with the public, nor tempted, on a sudden quarrel, to use the great advantage a concealed weapon gives. State v. Perry, 120 N.C. 580 , 26 S.E. 1008, 26 S.E. 915, 1897 N.C. LEXIS 135 (1897).

Time Not Essence of Offense. —

Time is not the essence of the offense of carrying a concealed weapon, and it may be shown at a previous time to that alleged in the bill. State v. Spencer, 185 N.C. 765 , 117 S.E. 803, 1923 N.C. LEXIS 160 (1923).

Apprehension of Assault No Defense. —

Carrying concealed weapons in reasonable apprehension of deadly assaults is not justification of a violation of the statutory offense, but in aggravation thereof, and may be considered by the trial judge in imposing the sentence, according to the discretion given him therein by this section. State v. Woodlief, 172 N.C. 885 , 90 S.E. 137, 1916 N.C. LEXIS 439 (1916).

Nor Is Acting upon Advice of Attorney. —

A person acting in ignorance of the law in good faith and upon advice of the clerk of the court or of an attorney, but in violation of this section, is not excused. State v. Simmons, 143 N.C. 613 , 56 S.E. 701, 1907 N.C. LEXIS 81 (1907).

Mens Rea. —

Lack of a mens rea element in G.S. 14-269.2 did not offend the equal protection requirements of N.C. Const. Art. I, § 19, or U.S. Const. amend. XIV, § 1, because the distinction between those exempt from prosecution under G.S. 14-269.2 (g) and G.S. 14-269(b) and those subject to prosecution, despite having no criminal intent, did not violate equal protection requirements as the statutory exemptions bore a rational relationship to a legitimate governmental interest, as they struck an appropriate balance between the safety of children and the furtherance of education. State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

III.Persons Excepted

Night Watchman. —

A private night watchman is not guilty of carrying a concealed weapon, under this section, while on duty upon the premises he is employed to watch. State v. Anderson, 129 N.C. 521 , 39 S.E. 824, 1901 N.C. LEXIS 109 (1901).

Officials of Transportation Companies. —

The exception in this section does not apply to the officials of corporations, such as turnpikes, railroads and others, which invite the public to use their lines of travel. State v. Perry, 120 N.C. 580 , 26 S.E. 1008, 26 S.E. 915, 1897 N.C. LEXIS 135 (1897).

United States Mail Carrier. —

A United States mail carrier is indictable under this section for carrying a concealed weapon while carrying the mail and while returning to his home after delivering the mail. State v. Boone, 132 N.C. 1107 , 44 S.E. 595, 1903 N.C. LEXIS 395 (1903).

Bail Bondsman. —

When defendant was prosecuted under G.S. 14-269.2 , he was not exempt from felony liability under G.S. 14-269.2 (g)(1a) or G.S. 14-269(b)(2), which exempted United States civil and law enforcement officers and State, county, city or town officers, because, as a bail bondsman, he was not an officer of the State, but was a surety regulated by the Commissioner of Insurance, under G.S. 58-71-5 , and his statutory right of arrest, under G.S. 58-71-30 , did not create law enforcement officer status but codified the common law governing the surety-principal relationship between bondsmen and the criminally accused. State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

IV.Illustrative Cases

“Ordinary Pocket Knife.” —

Knife about four and one-half inches in overall length which, when folded, was clearly designed for carrying in a pocket or purse, was an “ordinary pocketknife” as defined by this section. In re Dale B., 96 N.C. App. 375, 385 S.E.2d 521, 1989 N.C. App. LEXIS 994 (1989).

Butcher Knife. —

This section making it indictable for one to carry concealed about his person any pistol, bowie knife, razor or other deadly weapon of like kind, embraces a butcher’s knife. State v. Erwin, 91 N.C. 545 , 1884 N.C. LEXIS 114 (1884).

Revolver in Bag in Back Seat. —

Where police officers stopped defendant’s car to make a routine driver’s license check and defendant removed revolver from a bag in the backseat, the police properly arrested him without a warrant inasmuch as they had reasonable ground to believe defendant was committing a misdemeanor — carrying a concealed weapon in violation of this section — in their presence. State v. White, 18 N.C. App. 31, 195 S.E.2d 576, 1973 N.C. App. LEXIS 1770 , cert. denied, 283 N.C. 587 , 196 S.E.2d 811, 1973 N.C. LEXIS 1021 (1973).

Gun Under Driver’s Seat. —

Evidence of defendant’s guilty knowledge and intent was quite plain, where he was the driver of a car involved in a collision, witnesses to accident, who prevented his escape, saw him reach under the driver’s seat as though placing something there, and that is where the patrolman found a gun. State v. Jordan, 75 N.C. App. 637, 331 S.E.2d 232, 1985 N.C. App. LEXIS 3709 (1985).

Pistol in Hip Pocket with Coat on Shoulder. —

Upon evidence tending to show that the defendant had a pistol with the butt end projecting above his hip pocket, and with his coat off and carried upon his shoulder, it is sufficient for the determination of the jury, upon the issue of defendant’s guilt in having carried a concealed weapon in violation of this section. State v. Mangum, 187 N.C. 477 , 121 S.E. 765, 1924 N.C. LEXIS 315 (1924).

Carrying Pistol to Deliver to Another. —

One is not guilty of a violation of this section where it appears that he had a pistol in his pocket for the purpose of delivering it to the owner who had sent him for it. State v. Broadnax, 91 N.C. 543 , 1884 N.C. LEXIS 113 (1884).

Sitting on Firearm. —

Where officer approached the defendant’s car and, using his flashlight, looked into the interior, viewed the empty holster next to the defendant, asked the defendant where his gun was and was told by the defendant that the defendant was sitting on the gun, the officer then had probable cause to arrest the defendant for carrying a concealed weapon. State v. Brooks, 337 N.C. 132 , 446 S.E.2d 579, 1994 N.C. LEXIS 418 (1994).

Persons Not “On Premises”. —

A superintendent or overseer of a department of a cotton mill, is not, while therein, “on his premises,” within the meaning of this section. State v. Bridgers, 169 N.C. 309 , 84 S.E. 689, 1915 N.C. LEXIS 213 (1915).

A person in his own automobile on a public highway is not on his own premises within the meaning of this section. State v. Gainey, 273 N.C. 620 , 160 S.E.2d 685, 1968 N.C. LEXIS 640 (1968).

A mere servant or hireling who carries concealed weapons on the premises of his employer is indictable. State v. Deyton, 119 N.C. 880 , 26 S.E. 159, 1896 N.C. LEXIS 401 (1896).

V.Practice and Procedure

Warrant Must State That Defendant Carried Weapon Off His Own Premises. —

In prosecution for carrying a concealed weapon, the warrant is held fatally defective in failing to embrace in the charge the essential element of the offense that the weapon was carried concealed by defendant off his own premises, the warrant itself excluding the charge that the weapon was carried off the premises by charging that defendant carried an unconcealed weapon off his premises. State v. Bradley, 210 N.C. 290 , 186 S.E. 240, 1936 N.C. LEXIS 87 (1936).

Information Held Sufficient. —

An information charging that defendant, on a specified date, unlawfully and willfully carried a concealed weapon, to wit, a pistol, about his person, the defendant not being at the time on his own premises, is an accurate and sufficient charge of violating this section. State v. Caldwell, 269 N.C. 521 , 153 S.E.2d 34, 1967 N.C. LEXIS 1099 (1967).

Indictment Facially Valid. —

Trial court did not commit jurisdictional error by entering judgment against defendant for the offense of carrying a concealed weapon after the jury was instructed that it could find defendant guilty only upon a finding that he intentionally carried and concealed about his person one or more knives, while the indictment alleged only that defendant unlawfully carried a concealed weapon, a metallic set of knuckles, because the mention of knives was inadvertent and did not affect the State’s burden of proof or constitute a substantial change or variance from the indictment; the indictment charging carrying a concealed weapon pursuant to G.S. 14-269(a) was valid on its face, and the additional language regarding metallic knuckles was mere surplusage and not an essential element of the crime. State v. Bollinger, 192 N.C. App. 241, 665 S.E.2d 136, 2008 N.C. App. LEXIS 1518 (2008), aff'd, 363 N.C. 251 , 675 S.E.2d 333, 2009 N.C. LEXIS 344 (2009).

Former Conviction of Assault. —

A conviction of assault with a deadly weapon will not sustain a plea of former conviction in a subsequent trial for carrying a concealed weapon. State v. Robinson, 116 N.C. 1046 , 21 S.E. 701, 1895 N.C. LEXIS 323 (1895).

Motion to Suppress. —

Trial court’s ruling on defendant’s motion to suppress was based on improper findings of fact regarding a material conflict in the evidence as to a firearm’s accessibility in a vehicle defendant was driving, and, in the absence of appropriate findings of fact, the trial court improperly concluded that the firearm was readily accessible so as to objectively create probable cause that the firearm was evidence of a crime. On remand the trial court to make adequate findings of fact resolving the material conflict as to the firearm’s accessibility. State v. Newborn, 2021-NCCOA-426, 279 N.C. App. 42, 864 S.E.2d 752, 2021- NCCOA-426, 2021 N.C. App. LEXIS 450 (2021).

Punishment. —

When the punishment does not exceed the limits fixed by this section, it cannot be considered cruel and unusual punishment in a constitutional sense. State v. Caldwell, 269 N.C. 521 , 153 S.E.2d 34, 1967 N.C. LEXIS 1099 (1967).

Sufficient Evidence. —

When defendant was convicted of carrying a concealed weapon, G.S. 14-269(a1), and possession of a firearm by a convicted felon, G.S. 14-415.1(a) , sufficient evidence supported a finding that defendant actually or constructively possessed the firearm at issue because the gun was found in a van driven by defendant, the gun was found on the floor next to the driver’s seat, defendant admitted he owned the gun, a witness testified he saw defendant in possession of the gun on the afternoon in question, and a police detective corroborated the witness’s testimony. State v. Best, 214 N.C. App. 39, 713 S.E.2d 556, 2011 N.C. App. LEXIS 1638 (2011).

OPINIONS OF ATTORNEY GENERAL

Possession of an Unconcealed Pistol in an Automobile Not Violation of Statute. — See opinion of Attorney General to Honorable Albert Jackson, Sheriff of Henderson County, 41 N.C. Op. Att'y Gen. 207 (1971).

§ 14-269.1. Confiscation and disposition of deadly weapons.

Upon conviction of any person for violation of G.S. 14-269 , G.S. 14-269.7 , or any other offense involving the use of a deadly weapon of a type referred to in G.S. 14-269 , the deadly weapon with reference to which the defendant shall have been convicted shall be ordered confiscated and disposed of by the presiding judge at the trial in one of the following ways in the discretion of the presiding judge.

  1. By ordering the weapon returned to its rightful owner, but only when such owner is a person other than the defendant and has filed a petition for the recovery of such weapon with the presiding judge at the time of the defendant’s conviction, and upon a finding by the presiding judge that petitioner is entitled to possession of same and that he was unlawfully deprived of the same without his consent.
  2. , (3) Repealed by Session Laws 1994, Ex. Sess., c. 16, s. 2. (4) By ordering such weapon turned over to the sheriff of the county in which the trial is held or his duly authorized agent to be destroyed if the firearm does not have a legible, unique identification number or is unsafe for use because of wear, damage, age, or modification. The sheriff shall maintain a record of the destruction thereof.

    (4a) Repealed by Session Laws 2005-287, s. 3, effective August 22, 2005.

    (4b) By ordering the weapon turned over to a law enforcement agency in the county of trial for (i) the official use of the agency or (ii) sale, trade, or exchange by the agency to a federally licensed firearm dealer in accordance with all applicable State and federal firearm laws. The court may order a disposition of the firearm pursuant to this subdivision only upon the written request of the head or chief of the law enforcement agency or a designee of the head or chief of the law enforcement agency and only if the firearm has a legible, unique identification number. If the law enforcement agency sells the firearm, then the proceeds of the sale shall be remitted to the appropriate county finance officer as provided by G.S. 115C-452 to be used to maintain free public schools. The receiving law enforcement agency shall maintain a record and inventory of all firearms received pursuant to this subdivision.

    (5) By ordering such weapon turned over to the North Carolina State Crime Laboratory’s weapons reference library for official use by that agency. The Laboratory shall maintain a record and inventory of all such weapons received.

    (6) By ordering such weapons turned over to the North Carolina Justice Academy for official use by that agency. The North Carolina Justice Academy shall maintain a record and inventory of all such weapons received.

History. 1965, c. 954, s. 2; 1967, c. 24, s. 3; 1983, c. 517; 1989, c. 216; 1993, c. 259, s. 2; 1994, Ex. Sess., c. 16, s. 2; c. 22, s. 23; 1997-356, s. 1; 2003-378, s. 5; 2005-287, s. 3; 2011-19, s. 5; 2013-158, s. 3; 2013-360, s. 17.6(h); 2016-87, s. 2.

Editor’s Note.

Session Laws 2011-19, s. 1, provides: “This act shall be known as ‘The Forensic Sciences Act of 2011.’ ”

Session Laws 2011-19, s. 3, provides: “The State Bureau of Investigation (SBI) shall encourage and seek collaborative opportunities and grant funds for research programs, in association, whenever possible, with the university system or independent nationally recognized forensic institutions, on human observer bias and sources of human error in forensic examinations. Such programs might include studies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analysis are influenced by knowledge regarding the background of the suspect and the investigator’s theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with the North Carolina Forensic Sciences Advisory Board, the North Carolina State Crime Laboratory should develop standard operating procedures (that will lay the foundation for model protocols) to minimize, to the extent possible, potential bias and sources of human error in forensic science. These standard operating procedures should apply to all forensic analyses that may be used in litigation.”

Session Laws 2011-19, s. 4, as amended by Session Laws 2011-307, s. 8, and as amended by Session Laws 2012-168, s. 6.1, provides: “Forensic Scientists I, II, and III, forensic science supervisors, and forensic scientist managers at the State Crime Laboratory shall be required to obtain individual certification consistent with international and ISO standards within 18 months of the date the scientist becomes eligible to seek certification according to the standards of the certifying entity or by January 1, 2013, or as soon as practicable after that date unless no certification is available. All such forensic scientists shall have access to the certification process.”

Effect of Amendments.

Session Laws 2005-287, s. 3, effective August 22, 2005, deleted former subdivision (4a), which read: “By ordering the weapon, if the weapon has a legible unique identification number, turned over to a law enforcement agency in the county of trial for the official use of such agency, but only upon the written request by the head or chief of such agency. The receiving law enforcement agency shall maintain a record and inventory of all such weapons received”; and added subdivision (4b).

Session Laws 2011-19, s. 5, effective March 31, 2011, substituted “North Carolina State Crime Laboratory’s weapons reference library” for “North Carolina State Bureau of Investigation’s Laboratory Weapons Reference Library.” See Editor’s note for applicability.

Session Laws 2013-158, s. 3, effective September 1, 2013, added “if the firearm does not have a legible, unique identification number or is unsafe for use because of wear, damage, age, or modification” at the end of the first sentence in subdivision (4). For applicability, see Editor’s note.

Session Laws 2013-360, s. 17.6(h), effective July 1, 2013, substituted “Laboratory” for “State Bureau of Investigation” in subdivision (5).

Session Laws 2016-87, s. 2, effective July 11, 2016, near the middle of subdivision (4b), inserted “or a designee of the head or chief of the law enforcement agency.”

§ 14-269.2. Weapons on campus or other educational property.

  1. The following definitions apply to this section:
    1. Educational property. — Any school building or bus, school campus, grounds, recreational area, athletic field, or other property owned, used, or operated by any board of education or school board of trustees, or directors for the administration of any school. (1a) Employee. — A person employed by a local board of education or school whether the person is an adult or a minor.

      (1b) School. — A public or private school, community college, college, or university.

    2. Student. — A person enrolled in a school or a person who has been suspended or expelled within the last five years from a school, whether the person is an adult or a minor.
    3. Switchblade knife. — A knife containing a blade that opens automatically by the release of a spring or a similar contrivance.

      (3a) Volunteer school safety resource officer. — A person who volunteers as a school safety resource officer as provided by G.S. 162-26 or G.S. 160A-288.4 .

    4. Weapon. — Any device enumerated in subsection (b), (b1), or (d) of this section.
  2. It shall be a Class I felony for any person knowingly to possess or carry, whether openly or concealed, any gun, rifle, pistol, or other firearm of any kind on educational property or to a curricular or extracurricular activity sponsored by a school. Unless the conduct is covered under some other provision of law providing greater punishment, any person who willfully discharges a firearm of any kind on educational property is guilty of a Class F felony. However, this subsection does not apply to a BB gun, stun gun, air rifle, or air pistol. (b1) It shall be a Class G felony for any person to possess or carry, whether openly or concealed, any dynamite cartridge, bomb, grenade, mine, or powerful explosive as defined in G.S. 14-284.1 , on educational property or to a curricular or extracurricular activity sponsored by a school. This subsection shall not apply to fireworks.
  3. It shall be a Class I felony for any person to cause, encourage, or aid a minor who is less than 18 years old to possess or carry, whether openly or concealed, any gun, rifle, pistol, or other firearm of any kind on educational property. However, this subsection does not apply to a BB gun, stun gun, air rifle, or air pistol. (c1) It shall be a Class G felony for any person to cause, encourage, or aid a minor who is less than 18 years old to possess or carry, whether openly or concealed, any dynamite cartridge, bomb, grenade, mine, or powerful explosive as defined in G.S. 14-284.1 on educational property. This subsection shall not apply to fireworks.
  4. It shall be a Class 1 misdemeanor for any person to possess or carry, whether openly or concealed, any BB gun, stun gun, air rifle, air pistol, bowie knife, dirk, dagger, slungshot, leaded cane, switchblade knife, blackjack, metallic knuckles, razors and razor blades (except solely for personal shaving), firework, or any sharp-pointed or edged instrument except instructional supplies, unaltered nail files and clips and tools used solely for preparation of food, instruction, and maintenance, on educational property.
  5. It shall be a Class 1 misdemeanor for any person to cause, encourage, or aid a minor who is less than 18 years old to possess or carry, whether openly or concealed, any BB gun, stun gun, air rifle, air pistol, bowie knife, dirk, dagger, slungshot, leaded cane, switchblade knife, blackjack, metallic knuckles, razors and razor blades (except solely for personal shaving), firework, or any sharp-pointed or edged instrument except instructional supplies, unaltered nail files and clips and tools used solely for preparation of food, instruction, and maintenance, on educational property.
  6. Notwithstanding subsection (b) of this section it shall be a Class 1 misdemeanor rather than a Class I felony for any person to possess or carry, whether openly or concealed, any gun, rifle, pistol, or other firearm of any kind, on educational property or to a curricular or extracurricular activity sponsored by a school if:
    1. The person is not a student attending school on the educational property or an employee employed by the school working on the educational property; and

      (1a) The person is not a student attending a curricular or extracurricular activity sponsored by the school at which the student is enrolled or an employee attending a curricular or extracurricular activity sponsored by the school at which the employee is employed; and

    2. Repealed by Session Laws 1999-211, s. 1, effective December 1, 1999, and applicable to offenses committed on or after that date.
    3. The firearm is not loaded, is in a motor vehicle, and is in a locked container or a locked firearm rack.
    4. Repealed by Session Laws 1999-211, s. 1, effective December 1, 1999, and applicable to offenses committed on or after that date.
  7. This section shall not apply to any of the following:
    1. A weapon used solely for educational or school-sanctioned ceremonial purposes, or used in a school-approved program conducted under the supervision of an adult whose supervision has been approved by the school authority. (1a) A person exempted by the provisions of G.S. 14-269(b).
    2. Firefighters, emergency service personnel, North Carolina Forest Service personnel, detention officers employed by and authorized by the sheriff to carry firearms, and any private police employed by a school, when acting in the discharge of their official duties.
    3. Home schools as defined in G.S. 115C-563(a).
    4. Weapons used for hunting purposes on the Howell Woods Nature Center property in Johnston County owned by Johnston Community College when used with the written permission of Johnston Community College or for hunting purposes on other educational property when used with the written permission of the governing body of the school that controls the educational property.
    5. A person registered under Chapter 74C of the General Statutes as an armed armored car service guard or an armed courier service guard when acting in the discharge of the guard’s duties and with the permission of the college or university.
    6. A person registered under Chapter 74C of the General Statutes as an armed security guard while on the premises of a hospital or health care facility located on educational property when acting in the discharge of the guard’s duties with the permission of the college or university.
    7. A volunteer school safety resource officer providing security at a school pursuant to an agreement as provided in G.S. 115C-47(61) and either G.S. 162-26 or G.S. 160A-288.4 , provided that the volunteer school safety resource officer is acting in the discharge of the person’s official duties and is on the educational property of the school that the officer was assigned to by the head of the appropriate local law enforcement agency.
  8. No person shall be guilty of a criminal violation of this section with regard to the possession or carrying of a weapon so long as both of the following apply:
    1. The person comes into possession of a weapon by taking or receiving the weapon from another person or by finding the weapon.
    2. The person delivers the weapon, directly or indirectly, as soon as practical to law enforcement authorities.
  9. The provisions of this section shall not apply to an employee of an institution of higher education as defined in G.S. 116-143.1 or a nonpublic post-secondary educational institution who resides on the campus of the institution at which the person is employed when all of the following criteria are met:
    1. The employee’s residence is a detached, single-family dwelling in which only the employee and the employee’s immediate family reside.
    2. The institution is either:
      1. An institution of higher education as defined by G.S. 116-143.1 .
      2. A nonpublic post-secondary educational institution that has not specifically prohibited the possession of a handgun pursuant to this subsection.
    3. The weapon is a handgun.
    4. The handgun is possessed in one of the following manners as appropriate:
      1. If the employee has a concealed handgun permit that is valid under Article 54B of this Chapter, or who is exempt from obtaining a permit pursuant to that Article, the handgun may be on the premises of the employee’s residence or in a closed compartment or container within the employee’s locked vehicle that is located in a parking area of the educational property of the institution at which the person is employed and resides. Except for direct transfer between the residence and the vehicle, the handgun must remain at all times either on the premises of the employee’s residence or in the closed compartment of the employee’s locked vehicle. The employee may unlock the vehicle to enter or exit, but must lock the vehicle immediately following the entrance or exit if the handgun is in the vehicle.
      2. If the employee is not authorized to carry a concealed handgun pursuant to Article 54B of this Chapter, the handgun may be on the premises of the employee’s residence, and may only be in the employee’s vehicle when the vehicle is occupied by the employee and the employee is immediately leaving the campus or is driving directly to their residence from off campus. The employee may possess the handgun on the employee’s person outside the premises of the employee’s residence when making a direct transfer of the handgun from the residence to the employee’s vehicle when the employee is immediately leaving the campus or from the employee’s vehicle to the residence when the employee is arriving at the residence from off campus.
  10. The provisions of this section shall not apply to an employee of a public or nonpublic school who resides on the campus of the school at which the person is employed when all of the following criteria are met:
    1. The employee’s residence is a detached, single-family dwelling in which only the employee and the employee’s immediate family reside.
    2. The school is either:
      1. A public school which provides residential housing for enrolled students.
      2. A nonpublic school which provides residential housing for enrolled students and has not specifically prohibited the possession of a handgun pursuant to this subsection.
    3. The weapon is a handgun.
    4. The handgun is possessed in one of the following manners as appropriate:
      1. If the employee has a concealed handgun permit that is valid under Article 54B of this Chapter, or who is exempt from obtaining a permit pursuant to that Article, the handgun may be on the premises of the employee’s residence or in a closed compartment or container within the employee’s locked vehicle that is located in a parking area of the educational property of the school at which the person is employed and resides. Except for direct transfer between the residence and the vehicle, the handgun must remain at all times either on the premises of the employee’s residence or in the closed compartment of the employee’s locked vehicle. The employee may unlock the vehicle to enter or exit, but must lock the vehicle immediately following the entrance or exit if the handgun is in the vehicle.
      2. If the employee is not authorized to carry a concealed handgun pursuant to Article 54B of this Chapter, the handgun may be on the premises of the employee’s residence, and may only be in the employee’s vehicle when the vehicle is occupied by the employee and the employee is immediately leaving the campus or is driving directly to their residence from off campus. The employee may possess the handgun on the employee’s person outside the premises of the employee’s residence when making a direct transfer of the handgun from the residence to the employee’s vehicle when the employee is immediately leaving the campus or from the employee’s vehicle to the residence when the employee is arriving at the residence from off campus.
  11. The provisions of this section shall not apply to a person who has a concealed handgun permit that is valid under Article 54B of this Chapter, or who is exempt from obtaining a permit pursuant to that Article, if any of the following conditions are met:
    1. The person has a handgun in a closed compartment or container within the person’s locked vehicle or in a locked container securely affixed to the person’s vehicle and only unlocks the vehicle to enter or exit the vehicle while the firearm remains in the closed compartment at all times and immediately locks the vehicle following the entrance or exit.
    2. The person has a handgun concealed on the person and the person remains in the locked vehicle and only unlocks the vehicle to allow the entrance or exit of another person.
    3. The person is within a locked vehicle and removes the handgun from concealment only for the amount of time reasonably necessary to do either of the following:
      1. Move the handgun from concealment on the person to a closed compartment or container within the vehicle.
      2. Move the handgun from within a closed compartment or container within the vehicle to concealment on the person.
  12. It is an affirmative defense to a prosecution under subsection (b) or (f) of this section that the person was authorized to have a concealed handgun in a locked vehicle pursuant to subsection (k) of this section and removed the handgun from the vehicle only in response to a threatening situation in which deadly force was justified pursuant to G.S. 14-51.3 .

History. 1971, c. 241, ss. 1, 2; c. 1224; 1991, c. 622, s. 1; 1993, c. 539, s. 164; c. 558, s. 1; 1994, Ex. Sess., c. 14, s. 4(a), (b); 1995, c. 49, s. 1; 1997-238, s. 2; 1999-211, s. 1; 1999-257, s. 3, 3.1; 2003-217, s. 1; 2004-198, ss. 1, 2, 3; 2006-264, s. 31; 2007-427, s. 6; 2007-511, s. 12; 2011-268, s. 4; 2013-360, s. 8.45(a), (b); 2013-369, s. 2; 2014-119, s. 9(a); 2015-195, ss. 2, 3.

Effect of Amendments.

Session Laws 2004-198, ss. 1-3, effective December 1, 2004, and applicable to offenses committed on or after that date, added the present second sentence in subsection (b); added “with regard to the possession or carrying of a firearm” in subsection (h); and in subdivision (g)(4), added the language beginning “or for hunting purposes” and made a minor punctuation change.

Session Laws 2006-264, s. 31, effective August 27, 2006, substituted “weapon” for “firearm” in the introductory paragraph of subsection (h).

Session Laws 2007-427, s. 6, effective August 23, 2007, in subsection (g), added “any of the following” at the end of the introductory paragraph, in subdivision (g)(2), inserted “and” preceding “North Carolina Forest Service” and substituted “a school” for “an educational institution,” added subdivisions (g)(5) and (g)(6), and made stylistic changes throughout.

Session Laws 2007-511, s. 12, effective August 30, 2007, in subsection (g), added “any of the following” at the end of the introductory paragraph, in subdivision (g)(2), inserted “and” preceding “North Carolina Forest Service” and substituted “a school” for “an educational institution,” added subdivisions (g)(5) and (g)(6), and made stylistic changes throughout.

Session Laws 2011-268, s. 4, effective December 1, 2011, inserted “knowingly” in the first sentence of subsection (b). For applicability, see Editor’s Note.

Session Laws 2013-360, s. 8.45(a), (b), effective December 1, 2013, added subdivisions (a)(3a) and (g)(7).

Session Laws 2013-369, s. 2, effective October 1, 2013, added subsections (i), (j) and (k). For applicability, see Editor’s note.

Session Laws 2014-119, s. 9(a), effective December 1, 2014, in subdivision (g)(2), deleted “and” following “personnel,” and inserted “detention officers employed by and authorized by the sheriff to carry firearms,” near the middle. See Editor’s note for applicability.

Session Laws 2015-195, ss. 2, 3, effective July 1, 2015, divided the former subsection (k) into the introductory paragraph and subdivision (1) by substituting “Article, if any of the following conditions are met” for “Article, who,” and in subdivision (1), added “The person” at the beginning, and substituted “person’s vehicle and only unlocks the” for “person’s vehicle. A person may unlock the,” “vehicle while the firearm” for “vehicle provided the firearm” and “all times and immediately locks the vehicle following” for “all times and the vehicle is locked immediately following”; added subdivisions (k)(2) and (3); and added subsection ( l ). For applicability, see editor’s note.

Legal Periodicals.

For note, “Annie Get Your Gun ‘Cause Help Ain’t Comin’: The Need for Constitutional Protection From Peer Abuse in Public Schools,” see 1993 Duke L.J. 588.

For survey on new penalties for criminal behavior in schools, see 22 Campbell L. Rev. 253 (2000).

CASE NOTES

Purpose. —

The purpose of subsection (b) is to deter students and others from bringing any type of gun onto school grounds. In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

Mens rea was not an element of G.S. 14-269.2 , prohibiting the possession of a weapon on educational property, nor was the insertion of such an element required, because the statute was enacted for the purpose of deterring students and others from bringing any type of gun onto school grounds because of the increased necessity for safety in the schools. State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

Public policy favors that subsection (b) be treated differently from the other firearm statutes. In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

Construction with Other Sections. —

Section 14-87(a) is distinguishable because the only way a person’s life would be threatened is with the use of an operable gun; the armed robbery statute necessarily implies that the gun be operable. To the contrary, subsection (b) states it is illegal to carry any gun on school property. In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

The focus of G.S. 14-288.8 is weapons of mass death and destruction which is considerably different from the concept of any gun used in subsection (b). In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

Section 14-415.1(a) encompasses a narrow range of guns, while subsection (b) of this section prohibits any gun, excluding only a BB gun, stun gun, air rifle, or air pistol. In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

When defendant was prosecuted under G.S. 14-269.2 , he was not exempt from felony liability under G.S. 14-269.2 (g)(1a) or G.S. 14-269(b)(2), which exempted United States civil and law enforcement officers and State, county, city or town officers, because, as a bail bondsman, he was not an officer of the State, but was a surety regulated by the Commissioner of Insurance, under G.S. 58-71-5 , and his statutory right of arrest, under G.S. 58-71-30 , did not create a law enforcement officer but codified the common law governing the surety-principal relationship between bondsmen and the criminally accused. State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

Evidence Was Sufficient. —

The State presented sufficient evidence for a reasonable mind to conclude that the juvenile knowingly possessed a pellet gun on educational property. In re Murray, 136 N.C. App. 648, 525 S.E.2d 496, 2000 N.C. App. LEXIS 113 (2000).

Court properly adjudicated a juvenile as delinquent for possession of a weapon on school property in violation of G.S. 14-269.2(d) because a steel link from chain was a weapon contemplated by G.S. 14-269.2(d) ; the steel chain link was equivalent in appearance and use to metallic knuckles. In re J.C., 205 N.C. App. 301, 695 S.E.2d 168, 2010 N.C. App. LEXIS 1145 (2010).

Statement by juvenile defendant to school officials in presence of school’s resource officer held admissible. —

Court of appeals erred in reversing an order adjudicating defendant juvenile a delinquent on the ground that he unlawfully and willfully possessed a weapon on school property in violation of G.S. 14-269.2 because the trial court did not err in admitting, without objection, defendant’s statement that he possessed the knife on school property; the supreme court was not prepared to conclude that the school resource officer’s presence and participation during the interrogation of defendant at the request of school administrators conducting the investigation rendered the questioning of defendant a custodial interrogation requiring Miranda warnings and the protections of G.S. 7B-2101 , and because no motion to suppress defendant’s statement was made, no evidence was presented and no findings were made as to either the officer’s actual participation in the questioning or the custodial or noncustodial nature of the interrogation or as to whether the statements were freely and voluntarily made. In re W.R., 363 N.C. 244 , 675 S.E.2d 342, 2009 N.C. LEXIS 346 (2009).

A gun does not have to be operable in order for a student to be adjudicated delinquent under the statute prohibiting the possession of “any gun” on educational property. In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

The juvenile’s motion to suppress the search was properly denied where the school principal had reasonable grounds for suspicion about the contents of the book bag, and the search was conducted in a reasonable manner under the circumstances. In re Murray, 136 N.C. App. 648, 525 S.E.2d 496, 2000 N.C. App. LEXIS 113 (2000).

Educational Property. —

Where a school principal testified that a parking lot in which the principal located defendant juvenile and her cohorts was school property, the evidence was sufficient to convict defendant of possession of a weapon, a knife, on educational property in violation of G.S. 14-269.2(d) , regardless of the fact that a city bus made stops in that parking lot. In re D.D., 146 N.C. App. 309, 554 S.E.2d 346, 2001 N.C. App. LEXIS 942 (2001).

Juvenile’s motion to dismiss a charge of possessing a weapon on school property, in violation of G.S. 14-269.2(d) , was properly denied where he had possessed a 2.5 inch pocketknife while on school property and although the blade was closed, the operability of the weapon was irrelevant given the statute’s purpose. In re B.N.S., 182 N.C. App. 155, 641 S.E.2d 411, 2007 N.C. App. LEXIS 471 (2007).

Mens Rea. —

Lack of a mens rea element in G.S. 14-269.2 did not offend the equal protection requirements of N.C. Const. Art. I, § 19, or U.S. Const. amend. XIV, § 1, because the distinction between those exempt from prosecution under G.S. 14-269.2 (g) and those subject to prosecution, despite having no criminal intent, did not violate equal protection requirements as the statutory exemptions bore a rational relationship to a legitimate governmental interest, as they struck an appropriate balance between the safety of children and the furtherance of education. State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

“Knowingly” Mental State. —

Trial court erred in instructing the jury that defendant was guilty of possessing a gun on educational property even if she did not know she was on educational property, because the “knowingly” mental state in this section, modified both the “possess or carry” clause and the “on educational property” clauses. State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015), rev'd, 368 N.C. 569 , 780 S.E.2d 750, 2015 N.C. LEXIS 1254 (2015).

Jury Instructions. —

When defendant was prosecuted under G.S. 14-269.2 , it was not error for the trial court to decline to instruct the jury on willfulness, despite the fact that defendant was indicted for willfully, feloniously, and unlawfully possessing a weapon on educational property, because the use of the word “willfully” in the indictment did not indicate the level of mens rea to be proven but was used to characterize the offense as a felony and to put defendant on notice to defend against a felony charge. State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

Trial court committed plain error by failing to require the jury to consider whether the State met its burden in proving that defendant was knowingly on educational property when she possessed the weapon, because the jury was presented with evidence that defendant lacked knowledge of her presence on educational property. State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015), rev'd, 368 N.C. 569 , 780 S.E.2d 750, 2015 N.C. LEXIS 1254 (2015).

Defenses. —

When defendant was prosecuted under G.S. 14-269.2 , the trial court was not required, under G.S. 1-181 and G.S. 1A-1 , N.C. R. Civ. P. 51(b), to give defendant’s proffered special instruction on the defense of necessity, and did not err in instructing the jury that necessity was not a defense, as several alternatives were available to defendant, who was pursuing an armed fugitive into an elementary school, which did not require him to violate G.S. 14-269.2 . State v. Haskins, 160 N.C. App. 349, 585 S.E.2d 766, 2003 N.C. App. LEXIS 1792 (2003), overruled in part, State v. Huckelba, 240 N.C. App. 544, 771 S.E.2d 809, 2015 N.C. App. LEXIS 325 (2015).

Multiple Convictions. —

Defendant’s double jeopardy argument after being convicted of multiple counts of possession of a weapon on educational property for possessing multiple weapons was not considered because (1) it was not raised below, and, (2) even if multiple convictions erred, defendant’s sentence was within the authorized statutory range, so the case did not so impact defendant’s substantial rights or present such an exceptional circumstance, issue of public interest, or manifest injustice to suspend appellate rules. State v. Conley, 264 N.C. App. 85, 825 S.E.2d 10, 2019 N.C. App. LEXIS 133 (2019), aff'd, 374 N.C. 209 , 839 S.E.2d 805, 2020 N.C. LEXIS 268 (2020).

Multiple Punishments. —

Defendant’s multiple sentences for possession of multiple guns on educational property were reversed because (1) statutory language describing the offense was ambiguous as to authorization of multiple punishments for simultaneous possession of multiple firearms, so, (2) under the rule of lenity, multiple punishments for such simultaneous possession were not authorized. State v. Conley, 264 N.C. App. 85, 825 S.E.2d 10, 2019 N.C. App. LEXIS 133 (2019), aff'd, 374 N.C. 209 , 839 S.E.2d 805, 2020 N.C. LEXIS 268 (2020).

Statutory language describing the offense of knowingly possessing or carrying, whether openly or concealed, any gun, rifle, pistol, or other firearm of any kind on educational property is ambiguous as to whether multiple punishments for the simultaneous possession of multiple firearms is authorized, and the statute does not allow multiple punishments for the simultaneous possession of multiple firearms on educational property. State v. Conley, 264 N.C. App. 85, 825 S.E.2d 10, 2019 N.C. App. LEXIS 133 (2019), aff'd, 374 N.C. 209 , 839 S.E.2d 805, 2020 N.C. LEXIS 268 (2020).

Court of Appeals properly determined that G.S. 14-269.2(b) should be construed as permitting only a single conviction for possession of firearms on school property because the court was bound by prior case law to conclude that the ambiguity triggered the rule of lenity where, by employing the word “any” followed by a list of singular nouns to enumerate the prohibited items, G.S. 14-269.2(b) was ambiguous as to whether multiple convictions were permitted for the simultaneous possession of more than one firearm on a single occasion, which was a quintessential example of a policy decision reserved for the General Assembly, and only after such a policy decision was made and codified by statute, could the courts to give meaning to the legislature’s clearly stated intent. State v. Conley, 374 N.C. 209 , 839 S.E.2d 805, 2020 N.C. LEXIS 268 (2020).

OPINIONS OF ATTORNEY GENERAL

Faculty Member May Have Gun in Own Home Located on Campus. — See opinion of Attorney General to Mr. Pritchard C. Smith, 41 N.C. Op. Att'y Gen. 466 (1971).

§ 14-269.3. Carrying weapons into assemblies and establishments where alcoholic beverages are sold and consumed.

  1. It shall be unlawful for any person to carry any gun, rifle, or pistol into any assembly where a fee has been charged for admission thereto, or into any establishment in which alcoholic beverages are sold and consumed. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.
  2. This section shall not apply to any of the following:
    1. A person exempted from the provisions of G.S. 14-269 .
    2. The owner or lessee of the premises or business establishment.
    3. A person participating in the event, if the person is carrying a gun, rifle, or pistol with the permission of the owner, lessee, or person or organization sponsoring the event.
    4. A person registered or hired as a security guard by the owner, lessee, or person or organization sponsoring the event.
    5. A person carrying a handgun if the person has a valid concealed handgun permit issued in accordance with Article 54B of this Chapter, has a concealed handgun permit considered valid under G.S. 14-415.24 , or is exempt from obtaining a permit pursuant to G.S. 14-415.25 . This subdivision shall not be construed to permit a person to carry a handgun on any premises where the person in legal possession or control of the premises has posted a conspicuous notice prohibiting the carrying of a concealed handgun on the premises in accordance with G.S. 14-415.11(c) .

History. 1977, c. 1016, s. 1; 1981, c. 412, s. 4; c. 747, s. 66; 1993, c. 539, s. 165; 1994, Ex. Sess., c. 24, s. 14(c); 2013-369, s. 3.

Editor’s Note.

Session Laws 2013-369, s. 28, provides: “Sections 1 through 6, 14 through 16, 18, 21, 23, 25, and 26 of this act become effective October 1, 2013, and apply to offenses committed on or after that date. Section 17.3 and this section are effective when they become law. Section 27 of this act becomes effective October 1, 2013, and applies to any judgment entered for a felony conviction on or after that date. Except as otherwise provided in this act, the remainder of this act becomes effective October 1, 2013. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2013-369, s. 3, effective October 1, 2013, inserted “any of” in the introductory language of subsection (b); substituted “the person” for “he” in subdivision (b)(3); added subdivision (b)(5); and made minor stylistic and punctuation changes throughout subsection (b). For applicability, see Editor’s note.

§ 14-269.4. Weapons on certain State property and in courthouses.

It shall be unlawful for any person to possess, or carry, whether openly or concealed, any deadly weapon, not used solely for instructional or officially sanctioned ceremonial purposes in the State Capitol Building, the Executive Mansion, the Western Residence of the Governor, or on the grounds of any of these buildings, and in any building housing any court of the General Court of Justice. If a court is housed in a building containing nonpublic uses in addition to the court, then this prohibition shall apply only to that portion of the building used for court purposes while the building is being used for court purposes.

This section shall not apply to any of the following:

  1. Repealed by S.L. 1997-238, s. 3, effective June 27, 1997.

    (1a) A person exempted by the provisions of G.S. 14-269(b).

  2. through (4) Repealed by S.L. 1997-238, s. 3, effective June 27, 1997, (4a) Any person in a building housing a court of the General Court of Justice in possession of a weapon for evidentiary purposes, to deliver it to a law-enforcement agency, or for purposes of registration.

    (4b) Any district court judge or superior court judge who carries or possesses a concealed handgun in a building housing a court of the General Court of Justice if the judge is in the building to discharge his or her official duties and the judge has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24 .

    (4c) Firearms in a courthouse, carried by detention officers employed by and authorized by the sheriff to carry firearms.

    (4d) Any magistrate who carries or possesses a concealed handgun in any portion of a building housing a court of the General Court of Justice other than a courtroom itself unless the magistrate is presiding in that courtroom, if the magistrate (i) is in the building to discharge the magistrate’s official duties, (ii) has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14-415.24 , (iii) has successfully completed a one-time weapons retention training substantially similar to that provided to certified law enforcement officers in North Carolina, and (iv) secures the weapon in a locked compartment when the weapon is not on the magistrate’s person.

    (5) State-owned rest areas, rest stops along the highways, and State-owned hunting and fishing reservations.

    (6) A person with a permit issued in accordance with Article 54B of this Chapter, with a permit considered valid under G.S. 14-415.24, or who is exempt from obtaining a permit pursuant to G.S. 14-415.25 , who has a firearm in a closed compartment or container within the person’s locked vehicle or in a locked container securely affixed to the person’s vehicle. A person may unlock the vehicle to enter or exit the vehicle provided the firearm remains in the closed compartment at all times and the vehicle is locked immediately following the entrance or exit.

    (7) Any person who carries or possesses an ordinary pocket knife, as defined in G.S. 14-269(d), carried in a closed position into the State Capitol Building or on the grounds of the State Capitol Building.

    Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

History. 1981, c. 646; 1987, c. 820, s. 1; 1993, c. 539, s. 166; 1994, Ex. Sess., c. 24, s. 14(c); 1997-238, s. 3; 2007-412, s. 1; 2007-474, s. 1; 2009-513, s. 1; 2011-268, s. 5; 2013-369, s. 14; 2015-195, s. 1(b).

Editor’s Note.

Session Laws 2007-412, s. 1, and Session Laws 2007-474, s. 1, each added new subdivisions designated as (4b). The subdivision added by Session Laws 2007-474, s. 1, has been designated herein as subdivision (4c) at the direction of the Revisor of Statutes.

Session Laws 2011-268, which, in s. 5, amended this section by inserting “certain” in the section catchline, adding “any of the following” in the second paragraph, making stylistic changes in subdivisions (1a) and (4a) through (4d), and adding subdivision (6), provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2013-369, s. 28, provides: “Sections 1 through 6, 14 through 16, 18, 21, 23, 25, and 26 of this act become effective October 1, 2013, and apply to offenses committed on or after that date. Section 17.3 and this section are effective when they become law. Section 27 of this act becomes effective October 1, 2013, and applies to any judgment entered for a felony conviction on or after that date. Except as otherwise provided in this act, the remainder of this act becomes effective October 1, 2013. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2015-195, s. 18, made the amendment to this section by Session Laws 2015-195, s. 1(b), applicable to offenses committed on or after July 1, 2015, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2007-412, s. 1, effective August 21, 2007, added subdivision (4b).

Session Laws 2007-474, s. 1, effective August 29, 2007, added subdivision (4b).

Session Laws 2009-513, s. 1, effective August 26, 2009, added subdivision (4d).

Session Laws 2011-268, s. 5, effective December 1, 2011, in the section catchline, inserted “certain”; in the second paragraph, added “any of the following”; in subdivisions (1a) and (4a) through (4d), made a minor stylistic change; and added subdivision (6). For applicability, see Editor’s Note.

Session Laws 2013-369, s. 14, effective October 1, 2013, in subdivision (6), substituted “Chapter, with a permit” for “Chapter or,” and inserted “or who is exempt from obtaining a permit pursuant to G.S. 14-415.25 .” For applicability, see editor’s note.

Session Laws 2015-195, s. 1(b), effective July 1, 2015, added subdivision (7). For applicability, see editor’s note.

§ 14-269.5.

Reserved for future codification purposes.

§ 14-269.6. Possession and sale of spring-loaded projectile knives prohibited.

  1. On and after October 1, 1986, it shall be unlawful for any person including law-enforcement officers of the State, or of any county, city, or town to possess, offer for sale, hold for sale, sell, give, loan, deliver, transport, manufacture or go armed with any spring-loaded projectile knife, a ballistic knife, or any weapon of similar character. Except that it shall be lawful for a law-enforcement agency to possess such weapons solely for evidentiary, education or training purposes.
  2. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

History. 1985 (Reg. Sess., 1986), c. 810, s. 1; 1993, c. 539, s. 167; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-269.7. Prohibitions on handguns for minors.

  1. Any minor who willfully and intentionally possesses or carries a handgun is guilty of a Class 1 misdemeanor.
  2. This section does not apply:
    1. To officers and enlisted personnel of the Armed Forces of the United States when in discharge of their official duties or acting under orders requiring them to carry handguns.
    2. To a minor who possesses a handgun for educational or recreational purposes while the minor is supervised by an adult who is present.
    3. To an emancipated minor who possesses such handgun inside his or her residence.
    4. To a minor who possesses a handgun while hunting or trapping outside the limits of an incorporated municipality if he has on his person written permission from a parent, guardian, or other person standing in loco parentis.
  3. The following definitions apply in this section:
    1. Handgun. — A firearm that has a short stock and is designed to be fired by the use of a single hand, or any combination of parts from which such a firearm can be assembled.
    2. Minor. — Any person under 18 years of age.

History. 1993, c. 259, s. 1; 1994, Ex. Sess., c. 14, s. 5; 1993 (Reg. Sess., 1994), c. 597, s. 1; 2011-183, s. 9; 2011-268, s. 6.

Editor’s Note.

Session Laws 2011-268, which, in s. 6, amended subsection (a) by inserting “willfully and intentionally” and substituting “Class 1 misdemeanor” for “Class 2 misdemeanor,” provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2011-183, s. 9, effective June 20, 2011, substituted “Armed Forces” for “armed forces” in subdivision (b)(1).

Session Laws 2011-268, s. 6, effective December 1, 2011, in subsection (a), inserted “wilfully and intentionally” and substituted “Class 1 misdemeanor” for “Class 2 misdemeanor.” For applicability, see Editor’s Note.

§ 14-269.8. Purchase or possession of firearms by person subject to domestic violence order prohibited.

  1. In accordance with G.S. 50B 3.1, it is unlawful for any person to possess, purchase, or receive or attempt to possess, purchase, or receive a firearm, as defined in G.S. 14-409.39(2), machine gun, ammunition, or permits to purchase or carry concealed firearms if ordered by the court for so long as that protective order or any successive protective order entered against that person pursuant to Chapter 50B of the General Statutes is in effect.
  2. Any person violating the provisions of this section shall be guilty of a Class H felony.

History. 1995, c. 527, s. 2; 2003-410, s. 2; 2011-268, s. 7.

Cross References.

As to surrender and disposal of firearms in domestic violence cases, see G.S. 50B-3.1 .

Editor’s Note.

Session Laws 2011-268, which, in s. 7, amended subsection (a) by twice deleting “own” preceding “possess,” provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2011-268, s. 7, effective December 1, 2011, twice deleted “own” preceding “possess” in subsection (a). For applicability, see Editor’s Note.

CASE NOTES

Validity of Domestic Violence Protective Order. —

The ex parte domestic violence order entered under N.C. Gen. Stat. ch. 50B was a valid protective order for purposes of G.S. 14-269.8 and G.S. 50B-3.1 . State v. Poole, 228 N.C. App. 248, 745 S.E.2d 26, 2013 N.C. App. LEXIS 716 (2013).

Validity of Indictment. —

In an action for attempting to purchase a firearm while subject to a domestic violence protective order prohibiting the same, the indictment was valid where it specifically referenced the attempt to purchase a firearm, the existence of a protective order against defendant, and that the order was in effect at the time defendant attempted to purchase the firearm. State v. Atwell, 278 N.C. App. 84, 862 S.E.2d 7, 2021- NCCOA-271, 2021 N.C. App. LEXIS 282 (2021).

§§ 14-270, 14-271. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, ss. 72, 73.

§§ 14-272 through 14-275. [Repealed]

Repealed by Session Laws 1983, c. 39, ss. 1-4.

Cross References.

As to disrupting, disturbing or interfering with a religious service or assembly, see now G.S. 14-288.4(a)(7).

§ 14-275.1. Disorderly conduct at bus or railroad station or airport.

Any person shall be guilty of a Class 3 misdemeanor, if such person while at, or upon the premises of,

  1. Any bus station, depot or terminal, or
  2. Any railroad passenger station, depot or terminal, or
  3. Any airport or air terminal used by any common carrier, or
  4. Any airport or air terminal owned or leased, in whole or in part, by any county, municipality or other political subdivision of the State, or privately owned airport

    shall

    (1) Engage in disorderly conduct, or

    (2) Use vulgar, obscene or profane language, or

    (3) On any one occasion, without having necessary business there, loiter and loaf upon the premises after being requested to leave by any peace officer or by any person lawfully in charge of such premises.

History. 1947, c. 310; 1993, c. 539, s. 168; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-276. [Repealed]

Repealed by Session Laws 1971, c. 357.

§ 14-276.1. Impersonation of firemen or emergency medical services personnel.

It is a Class 3 misdemeanor, for any person, with intent to deceive, to impersonate a fireman or any emergency medical services personnel, whether paid or voluntary, by a false statement, display of insignia, emblem, or other identification on his person or property, or any other act, which indicates a false status of affiliation, membership, or level of training or proficiency, if:

  1. The impersonation is made with intent to impede the performance of the duties of a fireman or any emergency medical services personnel, or
  2. Any person reasonably relies on the impersonation and as a result suffers injury to person or property.For purposes of this section, emergency medical services personnel means an emergency medical responder, emergency medical technician, advanced emergency medical technician, paramedic, or other member of a rescue squad or other emergency medical organization.

History. 1981, c. 432, s. 1; 1993, c. 539, s. 169; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.129B; 2015-290, s. 4.

Effect of Amendments.

Session Laws 2015-290, s. 4, effective October 29, 2015, in the last paragraph, substituted “an emergency medical responder, emergency medical technician, advanced emergency medical technician, paramedic, or other” for “a medical responder, emergency medical technician, emergency medial technician intermediates, emergency medical technician paramedics or other.”

§ 14-277. Impersonation of a law-enforcement or other public officer.

  1. No person shall falsely represent to another that he is a sworn law-enforcement officer. As used in this section, a person represents that he is a sworn law-enforcement officer if he:
    1. Verbally informs another that he is a sworn law-enforcement officer, whether or not the representation refers to a particular agency;
    2. Displays any badge or identification signifying to a reasonable individual that the person is a sworn law-enforcement officer, whether or not the badge or other identification refers to a particular law-enforcement agency;
    3. Unlawfully operates a vehicle on a public street, highway or public vehicular area with an operating red light as defined in G.S. 20-130.1(a) ; or
    4. Unlawfully operates a vehicle on a public street, highway, or public vehicular area with an operating blue light as defined in G.S. 20-130.1(c) .
  2. No person shall, while falsely representing to another that he is a sworn law-enforcement officer, carry out any act in accordance with the authority granted to a law-enforcement officer. For purposes of this section, an act in accordance with the authority granted to a law-enforcement officer includes:
    1. Ordering any person to remain at or leave from a particular place or area;
    2. Detaining or arresting any person;
    3. Searching any vehicle, building, or premises, whether public or private, with or without a search warrant or administrative inspection warrant;
    4. Unlawfully operating a vehicle on a public street or highway or public vehicular area equipped with an operating red light or siren in such a manner as to cause a reasonable person to yield the right-of-way or to stop his vehicle in obedience to such red light or siren;
    5. Unlawfully operating a vehicle on a public street or highway or public vehicular area equipped with an operating blue light in such a manner as to cause a reasonable person to yield the right-of-way or to stop his vehicle in obedience to such blue light.
  3. Nothing in this section shall prohibit any person from detaining another as provided by G.S. 15A-404 or assisting a law-enforcement officer as provided by G.S. 15A-405 .
  4. Repealed by Session Laws 1995 (Reg. Sess., 1996), c. 712, s. 1. (d1) Violations under this section are punishable as follows:
    1. A violation of subdivision (a)(1), (2), or (3) is a Class 1 misdemeanor.
    2. A violation of subdivision (b)(1), (2), (3), or (4) is a Class 1 misdemeanor. Notwithstanding the disposition in G.S. 15A-1340.23 , the court may impose an intermediate punishment on a person sentenced under this subdivision.
    3. A violation of subdivision (a)(4) is a Class I felony.
    4. A violation of subdivision (b)(5) is a Class H felony.
  5. It shall be unlawful for any person other than duly authorized employees of a county, a municipality or the State of North Carolina, including but not limited to, the Department of Social Services, Health, Area Mental Health, Developmental Disabilities, and Substance Abuse Authority or Building Inspector to represent to any person that they are duly authorized employees of a county, a municipality or the State of North Carolina or one of the above-enumerated departments and acting upon such representation to perform any act, make any investigation, seek access to otherwise confidential information, perform any duty of said office, gain access to any place not otherwise open to the public, or seek to be afforded any privilege which would otherwise not be afforded to such person except for such false representation or make any attempt to do any of said enumerated acts. Any person, corporation, or business association violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

History. 1927, c. 229; 1985, c. 477; 1985, c. 761, s. 1; 1985 (Reg. Sess., 1986), c. 863, s. 3; 1991 (Reg. Sess., 1992), c. 1030, s. 7; 1993, c. 539, ss. 170, 171; 1994, Ex. Sess., c. 24, s. 14(c); 1995 (Reg. Sess., 1996), c. 712, s. 1; 1997-456, s. 2.

CASE NOTES

Elements of the Offense. —

The offense defined by this section consists of two material elements, both of which must be made to appear before the person charged can be convicted. He must have made a false representation that he is a duly authorized peace officer, and acting upon such representation he must have arrested some person, searched a building, or done some act in accordance with the authority delegated to duly authorized officers. State v. Church, 242 N.C. 230 , 87 S.E.2d 256, 1955 N.C. LEXIS 489 (1955).

Because the trial court used evidence that was also used to prove an element of the offense of impersonating a law enforcement officer to support an aggravating factor under G.S. 14-277 , the error was not harmless; accordingly, the case was remanded for resentencing. State v. Jacobs, 193 N.C. App. 602, 668 S.E.2d 346, 2008 N.C. App. LEXIS 2006 (2008), vacated, 363 N.C. 576 , 681 S.E.2d 339, 2009 N.C. LEXIS 717 (2009).

Punishment Provisions Under G.S. 14-3(a) and Subsection (d) of This Section. —

While subsection (d) of this section provides in pertinent part that a violation of both subsections (a) and (b) is a misdemeanor, it also provides that a violation of subsection (a) is punishable under G.S. 14-3(a) and a violation of subsection (b) is punishable under subsection (d) of this section. The punishment provisions of G.S. 14-3(a) and subsection (d) vary. State v. Chisholm, 90 N.C. App. 526, 369 S.E.2d 375, 1988 N.C. App. LEXIS 617 (1988).

Error in Instruction Held Not Plain Error. —

The trial judge’s instruction to the jury of elements under subsection (b) of this section instead of subsection (a) of this section did not create an error that rose to the level of “plain error” when defendant was only charged with a violation of subsection (a), since to have convicted defendant under this section the jury would have to have found that he represented himself as a sworn law-enforcement officer to another. State v. Chisholm, 90 N.C. App. 526, 369 S.E.2d 375, 1988 N.C. App. LEXIS 617 (1988).

When Nonsuit Proper. —

Where the defendant made no oral representation that he was a peace officer, but merely exhibited a courtesy card, which the witness examined, but was not misled by, and the defendant used no words or action which would indicate that he intended or attempted to arrest the witness, a motion for judgment as of nonsuit should have been allowed. State v. Church, 242 N.C. 230 , 87 S.E.2d 256, 1955 N.C. LEXIS 489 (1955).

§ 14-277.1. Communicating threats.

  1. A person is guilty of a Class 1 misdemeanor if without lawful authority:
    1. He willfully threatens to physically injure the person or that person’s child, sibling, spouse, or dependent or willfully threatens to damage the property of another;
    2. The threat is communicated to the other person, orally, in writing, or by any other means;
    3. The threat is made in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out; and
    4. The person threatened believes that the threat will be carried out.
  2. A violation of this section is a Class 1 misdemeanor.

History. 1973, c. 1286, s. 11; 1993, c. 539, s. 172; 1994, Ex. Sess., c. 24, s. 14(c); 1999-262, s. 2.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For note on intentional infliction of emotional distress, see 18 Wake Forest L. Rev. 624 (1982).

For article, “The New Law of Threats: But What if the Defendant is not a ‘Reasonable Person’,” see 52 Wake Forest L. Rev. 61 (2017).

CASE NOTES

Construction with Federal Law. —

Defendants were entitled to summary judgment as to the plaintiff’s 42 U.S.C. § 1983 claim for unlawful arrest, where officers had probable cause to believe that the plaintiff had committed, at least, three offenses, that is, discharging a firearm in violation of a county ordinance, resisting, obstructing, and delaying an officer in carrying out his duties, and threatening bodily harm to an officer. Bell v. Dawson, 144 F. Supp. 2d 454, 2001 U.S. Dist. LEXIS 5629 (W.D.N.C. 2001).

Conditional Threats. —

A defendant may be held liable under this section for conditional threats where the condition is one which she had no right to impose. State v. Roberson, 37 N.C. App. 714, 247 S.E.2d 8, 1978 N.C. App. LEXIS 2835 (1978).

Defendant’s threat to hit the victim with a rock did not become lawful merely because defendant indicated she had no intention to strike if the victim did not “come any closer.” While the threat gave the victim the power to avoid the threatened consequences by simply complying with the condition imposed by defendant, the condition was one which defendant had no right to impose. State v. Roberson, 37 N.C. App. 714, 247 S.E.2d 8, 1978 N.C. App. LEXIS 2835 (1978).

Threatening language can amount to an offer to injure a person even though it is a conditional offer. State v. Roberson, 37 N.C. App. 714, 247 S.E.2d 8, 1978 N.C. App. LEXIS 2835 (1978).

Communication Through Third Party. —

Evidence defendant communicated threats against the victim to a third person who relayed the threats to the victim was sufficient to convict defendant of communicating threats since the utilization of a third person to communicate the threats did not negate the criminality of defendant’s behavior. State v. Thompson, 157 N.C. App. 638, 580 S.E.2d 9, 2003 N.C. App. LEXIS 952 (2003).

No Requirement That Threat Be Carried Out. —

The conduct proscribed by this section is the making and communicating of the threat in the manner described in the statute, with no requirement that the threat be carried out. State v. Roberson, 37 N.C. App. 714, 247 S.E.2d 8, 1978 N.C. App. LEXIS 2835 (1978).

Belief That Threat Will Be Carried Out. —

The crime of communicating threats under this section involves more than making a threat to injure one’s person or property and communicating it to the other person; it is also necessary, as the statute expressly provides, that the threat was made in a manner and under circumstances which could cause a reasonable person to believe that the threat is likely to be carried out and that the person threatened believes that the threat will be carried out. State v. Elledge, 80 N.C. App. 714, 343 S.E.2d 549, 1986 N.C. App. LEXIS 2246 (1986).

Trial court properly refused respondent juvenile’s motion to dismiss the juvenile petition, which alleged that he had communicated threats by telling a teacher he was going to kill her daughter; based upon the teacher’s testimony that she had known respondent for several years and that he had once knocked her daughter into a wall, there was sufficient evidence that a reasonable person would believe that the threat was likely to be carried out, and that the teacher actually believed the threat was likely to be carried out. In re S.R.S., 180 N.C. App. 151, 636 S.E.2d 277, 2006 N.C. App. LEXIS 2233 (2006).

There was sufficient evidence that a deputy believed defendant would carry out defendant’s threats against a deputy based on defendant’s statement that “I should have slit your throat when I had the chance,” which defendant said while making a slicing motion against defendant’s throat with pieces of nail clippers and a razor blade woven between defendant’s fingers. State v. Hill, 227 N.C. App. 371, 741 S.E.2d 911, 2013 N.C. App. LEXIS 529 (2013), writ denied, 2014 N.C. App. LEXIS 1262 (N.C. Ct. App. Mar. 21, 2014).

Trial court properly adjudicated a juvenile a delinquent based on sufficient evidence that the juvenile had violated the statute by physically threatening another student with a crowbar as she had previously threatened him, she was larger and stronger than the other student who was very fearful of her, and the statement was made in a way intended for the other student to hear it. In re Z.P., 2021-NCCOA-655, 868 S.E.2d 317, 2021- NCCOA-655, 2021 N.C. App. LEXIS 687 (N.C. Ct. App. 2021).

Victim’s Statement Introduced as Recorded Recollection. —

Appellate court upheld the trial court’s ruling admitting a statement which defendant’s wife made to police shortly after defendant allegedly threatened to punch the wife, as a recorded recollection, and affirmed the trial court’s judgment convicting defendant of communicating threats, in violation of G.S. 14-277.1 , but vacated the trial court’s judgment sentencing defendant to 24 months’ supervised probation because the trial court imposed that sentence without making a specific finding that a period of probation longer than 18 months was necessary, as required by G.S. 15A-1343.2(d). State v. Love, 156 N.C. App. 309, 576 S.E.2d 709, 2003 N.C. App. LEXIS 114 (2003).

Evidence that on earlier occasions defendant had broken into wife’s house and assaulted her tended to prove the two elements of the offense under this section and its receipt did not violate G.S. 8C-1 , Rule 404(b). State v. Elledge, 80 N.C. App. 714, 343 S.E.2d 549, 1986 N.C. App. LEXIS 2246 (1986).

Insufficient Evidence of a Willful Threat to Physically Injure Person or Property. —

The State failed to present substantial evidence of the first element of the crime of communicating threats—that defendant willfully threatened to physically injure the person or damage the property of another—where the defendant created a screen saver which ambiguously stated, “The end is near;” the defendant was never connected with any of the alleged bomb threats at the school; there was no evidence defendant had any plans to physically injure anyone or damage school property; he had exhibited good behavior at the school prior to this incident, and the arresting officer testified he determined the message written on the computer was “a prank.” State v. Mortimer, 142 N.C. App. 321, 542 S.E.2d 330, 2001 N.C. App. LEXIS 81 (2001).

Refusal to Allow Testimony as to Defendant’s Peacefulness as Error. —

Where at abortion clinic defendant yelled, “If you will hold that door open, I’m going to throw a bomb in there and get you out,” trial court erred in its refusal to allow defendant to present character witnesses to testify as to his character for peacefulness; evidence of defendant’s peacefulness was relevant to the issues of defendant’s willfulness in making the statement, whether the statement would have been believed by a reasonable person as well as the reasonableness of business manager’s perception that the statement was not a joke. State v. Shreve, 94 N.C. App. 383, 380 S.E.2d 158, 1989 N.C. App. LEXIS 460 (1989).

Misdemeanor Crime of Violence. —

Weapons surrendered under a domestic violence protective order should have been returned because convictions for stalking and communicating threats did not constitute “misdemeanor crimes of domestic violence,” and federal law did not preclude the gun owner from having or possessing a firearm, even if the owner and a victim were in a “personal relationship.” Underwood v. Hudson, 244 N.C. App. 535, 781 S.E.2d 295, 2015 N.C. App. LEXIS 1038 (2015).

Testimony Collateral to Issue Charged. —

Where at an abortion clinic defendant yelled at business manager, “If you will hold that door open, I’m going to throw a bomb in there,” trial court did not err in refusing to allow defendant to cross-examine business manager about her experiences in Cyprus just a few months earlier; defendant’s argument that evidence was relevant in determining whether business manager believed that defendant would actually throw a bomb was without merit and testimony defendant attempted to elicit was collateral to the charges tried. State v. Shreve, 94 N.C. App. 383, 380 S.E.2d 158, 1989 N.C. App. LEXIS 460 (1989).

Defendant Not Subjected to Double Jeopardy. —

Where the defendant was charged with communicating threats and assault by pointing a gun, he was not subjected to double jeopardy, even though the charges arose out of the same incident, since the elements of the two offenses differed. State v. Evans, 40 N.C. App. 730, 253 S.E.2d 590, 1979 N.C. App. LEXIS 2346 (1979).

Instructions. —

In a prosecution for communicating a threat, the trial court did not err in instructing that the threat must be proven to have been communicated orally and in failing to instruct the jury that the threat could be communicated by any other means. State v. Evans, 40 N.C. App. 730, 253 S.E.2d 590, 1979 N.C. App. LEXIS 2346 (1979).

§ 14-277.2. Weapons at parades, etc., prohibited.

  1. It shall be unlawful for any person participating in, affiliated with, or present as a spectator at any parade, funeral procession, picket line, or demonstration upon any private health care facility or upon any public place owned or under the control of the State or any of its political subdivisions to willfully or intentionally possess or have immediate access to any dangerous weapon. Violation of this subsection shall be a Class 1 misdemeanor. It shall be presumed that any rifle or gun carried on a rack in a pickup truck at a holiday parade or in a funeral procession does not violate the terms of this act.
  2. For the purposes of this section the term “dangerous weapon” shall include those weapons specified in G.S. 14-269 , 14-269.2, 14-284.1, or 14-288.8 or any other object capable of inflicting serious bodily injury or death when used as a weapon.
  3. The provisions of this section shall not apply to a person exempted by the provisions of G.S. 14-269(b) or to persons authorized by State or federal law to carry dangerous weapons in the performance of their duties or to any person who obtains a permit to carry a dangerous weapon at a parade, funeral procession, picket line, or demonstration from the sheriff or police chief, whichever is appropriate, of the locality where such parade, funeral procession, picket line, or demonstration is to take place.
  4. The provisions of this section shall not apply to concealed carry of a handgun at a parade or funeral procession by a person with a valid permit issued in accordance with Article 54B of this Chapter, with a permit considered valid under G.S. 14-415.24 , or who is exempt from obtaining a permit pursuant to G.S. 14-415.25 . This subsection shall not be construed to permit a person to carry a concealed handgun on any premises where the person in legal possession or control of the premises has posted a conspicuous notice prohibiting the carrying of a concealed handgun on the premises in accordance with G.S. 14-415.11(c) .

History. 1981, c. 684, s. 1; 1983, c. 633; 1993, c. 412, s. 2; c. 539, s. 174; 1994, Ex. Sess., c. 24, s. 14(c); 1997-238, s. 4; 2013-369, s. 15.

Editor’s Note.

Session Laws 2013-369, s. 28, provides: “Sections 1 through 6, 14 through 16, 18, 21, 23, 25, and 26 of this act become effective October 1, 2013, and apply to offenses committed on or after that date. Section 17.3 and this section are effective when they become law. Section 27 of this act becomes effective October 1, 2013, and applies to any judgment entered for a felony conviction on or after that date. Except as otherwise provided in this act, the remainder of this act becomes effective October 1, 2013. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2013-369, s. 15, effective October 1, 2013, added subsection (d). For applicability, see Editor’s note.

§ 14-277.3. [Repealed]

Repealed by Session Laws 2008-167, s. 1, effective December 1, 2008.

Cross References.

For current provisions as to stalking, see G.S. 14-277.3 A.

Editor’s Note.

Session Laws 2008-167, s. 3, provides: “This act becomes effective December 1, 2008, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-277.3A. Stalking.

  1. Legislative Intent. —  The General Assembly finds that stalking is a serious problem in this State and nationwide. Stalking involves severe intrusions on the victim’s personal privacy and autonomy. It is a crime that causes a long-lasting impact on the victim’s quality of life and creates risks to the security and safety of the victim and others, even in the absence of express threats of physical harm. Stalking conduct often becomes increasingly violent over time.The General Assembly recognizes the dangerous nature of stalking as well as the strong connections between stalking and domestic violence and between stalking and sexual assault. Therefore, the General Assembly enacts this law to encourage effective intervention by the criminal justice system before stalking escalates into behavior that has serious or lethal consequences. The General Assembly intends to enact a stalking statute that permits the criminal justice system to hold stalkers accountable for a wide range of acts, communications, and conduct. The General Assembly recognizes that stalking includes, but is not limited to, a pattern of following, observing, or monitoring the victim, or committing violent or intimidating acts against the victim, regardless of the means.
  2. Definitions. —  The following definitions apply in this section:
    1. Course of conduct. — Two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, is in the presence of, or follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
    2. Harasses or harassment. — Knowing conduct, including written or printed communication or transmission, telephone, cellular, or other wireless telephonic communication, facsimile transmission, pager messages or transmissions, answering machine or voice mail messages or transmissions, and electronic mail messages or other computerized or electronic transmissions directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose.
    3. Reasonable person. — A reasonable person in the victim’s circumstances.
    4. Substantial emotional distress. — Significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.
  3. Offense. —  A defendant is guilty of stalking if the defendant willfully on more than one occasion harasses another person without legal purpose or willfully engages in a course of conduct directed at a specific person without legal purpose and the defendant knows or should know that the harassment or the course of conduct would cause a reasonable person to do any of the following:
    1. Fear for the person’s safety or the safety of the person’s immediate family or close personal associates.
    2. Suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment.
  4. Classification. —  A violation of this section is a Class A1 misdemeanor. A defendant convicted of a Class A1 misdemeanor under this section, who is sentenced to a community punishment, shall be placed on supervised probation in addition to any other punishment imposed by the court. A defendant who commits the offense of stalking after having been previously convicted of a stalking offense is guilty of a Class F felony. A defendant who commits the offense of stalking when there is a court order in effect prohibiting the conduct described under this section by the defendant against the victim is guilty of a Class H felony.
  5. Jurisdiction. —  Pursuant to G.S. 15A-134 , if any part of the offense occurred within North Carolina, including the defendant’s course of conduct or the effect on the victim, then the defendant may be prosecuted in this State.

History. 2008-167, s. 2.

Cross References.

For the Address Confidentiality Program, see G.S. 15C-1 et seq.

Editor’s Note.

Session Laws 2008-167, s. 3, provides: “This act becomes effective December 1, 2008, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Legal Periodicals.

For Survey of Developments in North Carolina Law (1992), see 71 N.C.L. Rev. 1893 (1993).

For 1997 legislative survey, see 20 Campbell L. Rev. 417.

For comment, “Frog Eyes and Pig Butts: The North Carolina Stalking Statute’s Constitutional Dilemma and How To Remedy It,” see 99 N.C.L. Rev. 479 (2021).

CASE NOTES

Editor’s Note. —

Many of the cases below were decided under former G.S. 14-277.3 .

Violation of Defendant’s Right to Free Speech. —

Application of stalking statute to defendant’s social media posts amounted to a violation of his right to free speech because the statute constituted a content-based restriction on speech and application of the statute to the messages contained in defendant’s posts did not satisfy strict scrutiny review, as it did not represent the least restrictive means of preventing the escalation of stalking into more dangerous behavior, given the victim’s no-contact order against defendant. State v. Shackelford, 264 N.C. App. 542, 825 S.E.2d 689, 2019 N.C. App. LEXIS 257 (2018).

Defendant’s social media posts did not fall within the “speech integral to criminal conduct” exception because pursuant to the language of the stalking statute, no additional conduct on his part was needed to support his stalking convictions, but rather, his speech itself was the crime. State v. Shackelford, 264 N.C. App. 542, 825 S.E.2d 689, 2019 N.C. App. LEXIS 257 (2018).

Double Jeopardy. —

Evidence presented in support of a 2010 indictment for felony stalking amounted to double jeopardy because the indictment was the same in law as a 2009 indictment, in that the time periods of the “course of conduct” for both indictments overlapped and thus the same acts could have resulted in a conviction under either indictment. State v. Fox, 216 N.C. App. 144, 721 S.E.2d 673, 2011 N.C. App. LEXIS 2187 (2011).

Crime of Violence. —

Defendant was properly sentenced, where his prior conviction for felony stalking under former G.S. 14-277.3 , unlike stalking statutes from other jurisdictions, met the standard for a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2(a)(2), and justified the enhancement imposed under U.S. Sentencing Guidelines Manual § 2K2.1. United States v. Seay, 553 F.3d 732, 2009 U.S. App. LEXIS 1290 (4th Cir. 2009), cert. denied, 558 U.S. 850, 130 S. Ct. 127, 175 L. Ed. 2d 82, 2009 U.S. LEXIS 5246 (2009), dismissed, 2011 U.S. Dist. LEXIS 25774 (D.S.C. Mar. 11, 2011), transferred, 2011 U.S. Dist. LEXIS 48904 (S.D. W. Va. May 5, 2011).

Misdemeanor Crime of Violence. —

Weapons surrendered under a domestic violence protective order should have been returned because convictions for stalking and communicating threats did not constitute “misdemeanor crimes of domestic violence,” and federal law did not preclude the gun owner from having or possessing a firearm, even if the owner and a victim were in a “personal relationship.” Underwood v. Hudson, 244 N.C. App. 535, 781 S.E.2d 295, 2015 N.C. App. LEXIS 1038 (2015).

Amendment of Indictment. —

In a case in which the defendant was prosecuted for stalking and for having previously been convicted of stalking, the State was properly allowed to amend the indictment to place the allegation of the prior offense in a count separate from that of the current offense because the amendment was not a substantial alteration of the charge, prohibited by G.S. 15A-923(e); the amendment merely placed the last two sentences of the single count in the original indictment into a separate count, to comply with G.S. 15A-928 , and defendant had prior notice that the State alleged defendant’s prior conviction and intended to prove that conviction, so defendant had the opportunity to prepare a defense. State v. Stephens, 188 N.C. App. 286, 655 S.E.2d 435, 2008 N.C. App. LEXIS 74 (2008).

Denial of Motion to Dismiss Proper. —

Requirement that defendant not have contact with the stalking victim was not conditioned upon defendant’s release or commitment but was required as long as the order was in effect and thus, the trial court did not err in denying defendant’s motion to dismiss the charge of felony stalking. State v. Mitchell, 259 N.C. App. 866, 817 S.E.2d 455, 2018 N.C. App. LEXIS 530 (2018).

The trial courts should instruct the jury as to the definition of “reasonable fear” when handling violations under this section to ensure that an objective standard, based on what frightens an ordinary, prudent person under the same or similar circumstances, is applied rather than a subjective standard which focuses on the individual victim’s fears and apprehensions. State v. Ferebee, 137 N.C. App. 710, 529 S.E.2d 686, 2000 N.C. App. LEXIS 498 (2000).

Evidence. —

Evidence which related to events occurring before defendant was warned to stay a away from the victim was not irrelevant and prejudicial. State v. Ferebee, 128 N.C. App. 710, 499 S.E.2d 459, 1998 N.C. App. LEXIS 167 (1998).

Motion to dismiss a charge of misdemeanor stalking under provisions of former G.S. 14-277.3 was improper, as evidence showed faxes were directed at the victim, a building inspector, the faxes were not for the legitimate purpose of raising a grievance, and they were sent with the intent to place the victim in reasonable fear for the safety of the victim, the victim’s family, and the victim’s co-workers. State v. Wooten, 206 N.C. App. 494, 696 S.E.2d 570, 2010 N.C. App. LEXIS 1558 , writ denied, 364 N.C. 606 , 705 S.E.2d 340, 2010 N.C. LEXIS 948 (2010).

Trial court did not err in denying defendant’s motion to dismiss because the State of North Carolina presented substantial evidence at defendant’s trial for misdemeanor stalking to support a conclusion that defendant was the perpetrator of the offense as defendant’s ex-paramour testified defendant showed the ex-paramour a copy of a flyer concerning the victim that defendant intended to mail and asked for addresses and the ex-paramour testified claimed to have found a stack of the flyers among defendant’s belongings. State v. Hobson, 261 N.C. App. 60, 819 S.E.2d 397, 2018 N.C. App. LEXIS 808 (2018).

At no point did the daughter attempt to block her father from texting her, and instead, she continuously replied to the messages she received; the daughter’s testimony did not assert substantial emotional distress stemming from her father’s messages to he, and being generally “anxious” or “upset” about her father’s conduct could not constitute substantial emotional distress. Walker-Snyder v. Snyder, 2022-NCCOA-97, 870 S.E.2d 139, 2022- NCCOA-97, 2022 N.C. App. LEXIS 102 (N.C. Ct. App. 2022).

Acts Prior to Warning Relevant to Show Context But Not to Convict. —

The trial court’s charge, given in accordance with the pattern jury instructions, “incorrectly allowed the jury to consider acts prior to the alleged warning as constituting part of the basis of a stalking conviction.” A conviction for the offense of stalking may not be based upon acts which occurred prior to the time a defendant was warned to desist, but rather upon acts committed after the warning. State v. Ferebee, 137 N.C. App. 710, 529 S.E.2d 686, 2000 N.C. App. LEXIS 498 (2000).

Fear of Continued Harassment Supported Protective Order for Domestic Violence. —

Protective order against a husband for acts of domestic violence was supported by the evidence as, inter alia, the husband yelled at the wife “Would you like to hurt me? Would you like to kill and hit me? Would that make you feel better?,” the husband banged a stapler on a counter, threw a water bottle in the wife’s direction, and refused to leave their jointly-owned business during the late night hours, and the wife was afraid of the husband and thought he was “out of control.” Wornstaff v. Wornstaff, 179 N.C. App. 516, 634 S.E.2d 567, 2006 N.C. App. LEXIS 1975 (2006), aff'd, 361 N.C. 230 , 641 S.E.2d 301, 2007 N.C. LEXIS 216 (2007).

It was not error to issue a domestic violence protection order because a husband’s text messages causing his wife’s fear of continued harassment, under G.S. 50B-1(a)(2) and G.S. 14-277.3 A(b)(2), created “substantial emotional distress.” Stancill v. Stancill, 241 N.C. App. 529, 773 S.E.2d 890, 2015 N.C. App. LEXIS 518 (2015).

In a case involving the issuance of a domestic violence protective order, there was sufficient evidence that there was a fear of continued harassment that caused the victim substantial distress, even though the victim only testified about the contents of one voicemail. The evidence showed that the victim broke off the relationship due to fear, the boyfriend continued to contact her repeatedly, despite instructions not to do so, and the victim consequently suffered from anxiety and sleeplessness and altered her daily living activities. Thomas v. Williams, 242 N.C. App. 236, 773 S.E.2d 900, 2015 N.C. App. LEXIS 584 (2015).

Sufficient evidence showed a mother who sought a domestic violence protective order suffered substantial emotional distress due to a father’s text messages because the mother testified the father’s repeated contact caused the mother to feel terror, to change the mother’s housing arrangements, and to alter the mother’s daily routine. Bunting v. Bunting, 266 N.C. App. 243, 832 S.E.2d 183, 2019 N.C. App. LEXIS 607 (2019).

Father’s text messages to a mother supported a domestic violence protective order because, as the father had no custody of the parties’ children, the father’s messages allegedly concerning the children served no legitimate purpose. Bunting v. Bunting, 266 N.C. App. 243, 832 S.E.2d 183, 2019 N.C. App. LEXIS 607 (2019).

Harassment Could Not Support Civil No-Contact Order. —

Finding that a blogger had harassed the victims under G.S. 50C-1(6) and (7) by knowingly publishing electronic or computerized transmissions directed at the victims that tormented, terrorized, or terrified the victims and served no legitimate purpose could not support a civil no-contact order, even though the correct definition of harassment under G.S. 14-277.3 (c) [now G.S. 14-277.3 A] was used. Ramsey v. Harman, 191 N.C. App. 146, 661 S.E.2d 924, 2008 N.C. App. LEXIS 1146 (2008).

Trial court erred in entering an ex parte Temporary No-Contact Order against defendant because it failed to make any finding that defendant specifically intended to cause any of the harm set forth in subsection (6), and such a finding had to be specifically made, not inferred; even if an intent finding could be inferred, it would still fail because two minor teenagers with learning and processing issues mutually exchanged disturbing communications during a volatile yet consensual relationship. Diprima v. Vann, 2021 N.C. App. LEXIS 211 (May 18, 2021).

Harassment Supported No-Contact Order. —

Neighbors’ conduct in beating on the victim’s door, following the victim in her car, and implicitly threatening vandalism to her carport after the victim reported the neighbor to the police constituted unlawful conduct sufficient for the issuance of a no-contact order under G.S. 50C-1 and G.S. 50C-5 . Such behavior constituted intimidating a witness in a pending criminal case, in violation of G.S. 14-226(a). St. John v. Brantley, 217 N.C. App. 558, 720 S.E.2d 754, 2011 N.C. App. LEXIS 2612 (2011), cert. denied, 366 N.C. 232 , 731 S.E.2d 153, 2012 N.C. LEXIS 674 (2012).

Trial court properly held that defendant’s actions constituted harassment under G.S. 14-277.3 A(b)(2) where his conduct of charging at plaintiff with a vehicle and making false claims about her to the sheriff were forms of harassment. Norrell v. Keely, 238 N.C. App. 441, 2014 N.C. App. LEXIS 1344 (2014).

Insufficient Evidence of Course of Conduct. —

Two of defendant’s stalking convictions were vacated because his social media posts were protected speech and therefore could not form the basis for his convictions and defendant’s act of sending cupcakes to the victim did not amount to a course of conduct. State v. Shackelford, 264 N.C. App. 542, 825 S.E.2d 689, 2019 N.C. App. LEXIS 257 (2018).

Insufficient Evidence of Harassment to Support Domestic Violence Order of Protection. —

Trial court erred by issuing a domestic violence order of protection under G.S. 50B-3(a), because defendant ex-husband’s act of hiring a PI service to conduct surveillance in order to determine if plaintiff ex-wife was cohabiting was not harassment for purposes of G.S. 14-277.3 A(b)(2) and did not support a conclusion that defendant committed an act of domestic violence. In addition, the “act” of hiring a PI service for surveillance was not enough to support the trial court’s finding of “substantial emotional distress” under G.S. 14-277.3 A(b)(4). Kennedy v. Morgan, 221 N.C. App. 219, 726 S.E.2d 193, 2012 N.C. App. LEXIS 709 (2012).

Sufficiency of Evidence That Defendant Was in Presence of Victim Without Legal Purpose. —

Evidence that defendant hid in the woods outside the victim’s home, had weapons in his vehicle when he was stopped by police a short distance from the victim’s house, and admitted to another inmate that he was watching the victim and intended to kill her and her family was sufficient to support a stalking conviction under G.S. 14-277.3 (a)(1) [now G.S. 14-277.3 A]; that evidence was sufficient to support the element of stalking that the defendant was following the victim or was in the victim’s presence without lawful purpose. State v. Borkar, 173 N.C. App. 162, 617 S.E.2d 341, 2005 N.C. App. LEXIS 1926 (2005).

Error to Instruct Jury Under New Statute When Conduct Occurred Under Old Statute. —

Trial court committed plain error by instructing the jury on the crime of stalking under G.S. 14-277.3 A, when the bulk of the conduct constituting the offense was alleged to have taken place while the old stalking statute, former G.S. 14-277.3 , was still in effect and the evidence failed to show that defendant continued to harass the victim after the new statute came into effect. State v. Williams, 226 N.C. App. 393, 741 S.E.2d 9, 2013 N.C. App. LEXIS 330 (2013).

§ 14-277.4. Obstruction of health care facilities.

  1. No person shall obstruct or block another person’s access to or egress from a health care facility or from the common areas of the real property upon which the facility is located in a manner that deprives or delays the person from obtaining or providing health care services in the facility.
  2. No person shall injure or threaten to injure a person who is or has been:
    1. Obtaining health care services;
    2. Lawfully aiding another to obtain health care services; or
    3. Providing health care services.
  3. A violation of subsection (a) or (b) of this section is a Class 2 misdemeanor. A second conviction for a violation of either subsection (a) or (b) of this section within three years of the first shall be punishable as a Class 1 misdemeanor. A third or subsequent conviction for a violation of either subsection (a) or (b) of this section within three years of the second or most recent conviction shall be punishable as a Class I felony.
  4. Any person aggrieved under this section may seek injunctive relief in a court of competent jurisdiction to prevent threatened or further violations of this section. Any violation of an injunction obtained pursuant to this section constitutes criminal contempt and shall be punishable by a term of imprisonment of not less than 30 days and no more than 12 months.
  5. This section shall not prohibit any person from engaging in lawful speech or picketing which does not impede or deny another person’s access to health care services or to a health care facility or interfere with the delivery of health care services within a health care facility.
  6. “Health care facility” as used in this section means any hospital, clinic, or other facility that is licensed to administer medical treatment or the primary function of which is to provide medical treatment in this State.
  7. “Health care services” as used in this section means services provided in a health care facility.
  8. Persons subject to the prohibitions in subsection (a) of this section do not include owners, officers, agents, or employees of the health care facility or law enforcement officers acting to protect real or personal property.

History. 1993, c. 412, s. 1; 1994, Ex. Sess., c. 14, s. 6; 1993 (Reg. Sess., 1994), c. 767, s. 21.

CASE NOTES

Constitutionality. —

This section is neither vague nor overbroad; the terms “obstruct” and “block” do not require those persons subject to the statute to guess at their meaning, and the plain language of the section prohibits only conduct that imposes physical impediments to entering and exiting a health care facility. Hoffman v. Hunt, 126 F.3d 575, 1997 U.S. App. LEXIS 25299 (4th Cir. 1997), cert. denied, 523 U.S. 1136, 118 S. Ct. 1838, 140 L. Ed. 2d 1089, 1998 U.S. LEXIS 3439 (1998).

Law enforcement officers exceeded their authority in threatening plaintiffs with arrest for attempting to distribute literature to persons entering clinics and for being present when patients were rescheduling appointments, activities that do not violate this section. Hoffman v. Hunt, 126 F.3d 575, 1997 U.S. App. LEXIS 25299 (4th Cir. 1997), cert. denied, 523 U.S. 1136, 118 S. Ct. 1838, 140 L. Ed. 2d 1089, 1998 U.S. LEXIS 3439 (1998).

§ 14-277.4A. Targeted picketing of a residence.

  1. Definitions. —  As used in this section:
    1. “Residence” means any single-family or multifamily dwelling unit that is not being used as a targeted occupant’s sole place of business or as a place of public meeting.
    2. “Targeted picketing” means picketing, with or without signs, that is specifically directed toward a residence, or one or more occupants of the residence, and that takes place on that portion of a sidewalk or street in front of the residence, in front of an adjoining residence, or on either side of the residence.
  2. It shall be unlawful for a person to engage in targeted picketing when the person knows or should know that the manner in which they are picketing would cause in a reasonable person any of the following:
    1. Fear for the person’s safety or the safety of the person’s immediate family or close personal associates.
    2. Substantial emotional distress. For the purposes of this subdivision, “substantial emotional distress” is defined as in G.S. 14-277.3 A(b)(4).
  3. Any person who commits the offense defined in this section is guilty of a Class 2 misdemeanor.
  4. Any person aggrieved under this section may seek injunctive relief in a court of competent jurisdiction to prevent threatened or further violations of this section. Any violation of an injunction obtained pursuant to this section constitutes criminal contempt and shall be punishable by a term of imprisonment of not less than 30 days and no more than 12 months.
  5. Nothing in this section shall be construed to prohibit general picketing that proceeds through residential neighborhoods or that proceeds past residences.

History. 2009-300, s. 1.

§ 14-277.5. Making a false report concerning mass violence on educational property.

  1. The following definitions apply in this section:
    1. Educational property. — As defined in G.S. 14-269.2 .
    2. Mass violence. — Physical injury that a reasonable person would conclude could lead to permanent injury (including mental or emotional injury) or death to two or more people.
    3. School. — As defined in G.S. 14-269.2 .
  2. A person who, by any means of communication to any person or groups of persons, makes a report, knowing or having reason to know the report is false, that an act of mass violence is going to occur on educational property or at a curricular or extracurricular activity sponsored by a school, is guilty of a Class H felony.
  3. The court may order a person convicted under this section to pay restitution, including costs and consequential damages resulting from the disruption of the normal activity that would have otherwise occurred on the premises but for the false report, pursuant to Article 81C of Chapter 15A of the General Statutes.

History. 2007-196, s. 1.

CASE NOTES

Analysis

—Construction.

Failure to Allege Elements of A Violation. —

Trial court erred in adjudicating defendant juvenile delinquent because the petition failed to allege the elements of a violation of the statute; the petition failed to allege that defendant was “making a report” when he wrote graffiti because it did not allege he directed his “bomb incoming” message to anyone in particular or that anyone in particular saw it, and it would not be reasonable for a person seeing the graffiti to construe said graffiti as a report of a credible threat. In re D.W.L.B., 267 N.C. App. 392, 832 S.E.2d 565, 2019 N.C. App. LEXIS 764 (2019).

Failure to Allege Elements of A Violation. —

Trial court erred in adjudicating defendant juvenile delinquent because the petition failed to allege the elements of a violation of the statute; no one would reasonably believe that the words “BOMB INCOMING,” written in a bathroom at some unknown time in the past and obviously by an elementary-school-aged student, represented a report of an actual threat that a bomb was incoming to the school. In re D.W.L.B., 267 N.C. App. 392, 832 S.E.2d 565, 2019 N.C. App. LEXIS 764 (2019).

Failure to Allege Elements of A Violation. —

Since the clear intent of the drafter of the petition was to charge defendant juvenile with a violation of the statute, and since “graffiti vandalism” was not a lesser-included offense of that Class H felony, defendant was not on notice that he needed to defend against a “graffiti vandalism” charge; thus, it would not be appropriate to remand and allow the trial court to enter a disposition based on a finding of “graffiti vandalism,” based on the language of the petition. In re D.W.L.B., 267 N.C. App. 392, 832 S.E.2d 565, 2019 N.C. App. LEXIS 764 (2019).

§ 14-277.6. Communicating a threat of mass violence on educational property.

  1. A person who, by any means of communication to any person or groups of persons, threatens to commit an act of mass violence on educational property or at a curricular or extracurricular activity sponsored by a school is guilty of a Class H felony.
  2. The definitions in G.S. 14-277.5 apply to this section.

History. 2018-72, s. 1.

Editor’s Note.

Session Laws 2018-70, s. 7, made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

CASE NOTES

True threat. —

State did not meet its burden of showing that a juvenile had violated the statute by threatening to blow up the school because an objectively reasonable hearer would not have construed the threat as a true threat since none of threat witnesses had testified that they thought she was serious when she made it. In re Z.P., 2021-NCCOA-655, 868 S.E.2d 317, 2021- NCCOA-655, 2021 N.C. App. LEXIS 687 (N.C. Ct. App. 2021).

§ 14-277.7. Communicating a threat of mass violence at a place of religious worship.

  1. A person who, by any means of communication to any person or groups of persons, threatens to commit an act of mass violence at a place of religious worship is guilty of a Class H felony.
  2. The following definitions apply to this section:
    1. Mass violence. — As defined in G.S. 14-277.5(a)(2).
    2. Place of religious worship. — Any church, chapel, meetinghouse, synagogue, temple, longhouse, or mosque, or other building that is regularly used, and clearly identifiable, as a place for religious worship.

History. 2018-72, s. 2.

Editor’s Note.

Session Laws 2018-70, s. 7, made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

§ 14-277.8. Conditional discharge for first offenders under the age of 20 years.

  1. Whenever any person who has not previously been convicted of any felony or misdemeanor other than a traffic violation under the laws of the United States or the laws of this State or any other state pleads guilty to or is guilty of a violation of G.S. 14-277.5 , 14-277.6, or 14-277.7, and the offense was committed before the person attained the age of 20 years, the court shall, without entering a judgment of guilt and with the consent of the defendant and the District Attorney, defer further proceedings and place the defendant on probation upon such reasonable terms and conditions as the court may require.
  2. If the court, in its discretion, defers proceedings pursuant to this section, it shall place the defendant on supervised probation for not less than one year. In addition to any other conditions of probation, the court shall require the defendant to complete a minimum of 30 hours of community service, to obtain a mental health evaluation, and to comply with any treatment recommended as a result of the mental health evaluation. Prior to taking any action to discharge and dismiss under this section, the court shall make a finding that the defendant has no previous criminal convictions. Upon fulfillment of the terms and conditions of the probation provided for in this section, the court shall discharge the defendant and dismiss the proceedings against the defendant.
  3. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this section may occur only once with respect to any person. Disposition of a case to determine discharge and dismissal under this section at the district court division of the General Court of Justice shall be final for the purpose of appeal. Upon violation of a term or condition of the probation provided for in this section, the court may enter an adjudication of guilt and proceed as otherwise provided.
  4. Upon discharge and dismissal pursuant to this section, the person may apply for an order to expunge the complete record of the proceedings resulting in the dismissal and discharge, pursuant to the procedures and requirements set forth in G.S. 15A-145.7 .
  5. The clerk shall notify State and local agencies of the court’s order as provided in G.S. 15A-150 .

History. 2018-72, s. 3.

Editor’s Note.

Session Laws 2018-70, s. 7, made this section effective December 1, 2018, and applicable to offenses committed on or after that date.

Subchapter X. Offenses Against The Public Safety.

Article 36. Offenses Against the Public Safety.

§ 14-278. Willful injury to property of railroads.

It shall be unlawful for any person to willfully, with intent to cause injury to any person passing over the railroad or damage to the equipment traveling on such road, put or place any matter or thing upon, over or near any railroad track, or destroy, injure, tamper with, or remove the roadbed, or any part thereof, or any rail, sill or other part of the fixtures appurtenant to or constituting or supporting any portion of the track of such railroad, and the person so offending shall be punished as a Class I felon.

History. 1838, c. 38; R.C., c. 34, ss. 99, 100; 1879, c. 255, s. 2; Code, s. 1098; Rev., s. 3754; 1911, c. 200; C.S., s. 4417; 1967, c. 1082, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1985, c. 577, s. 1; 1993, c. 539, s. 1221; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-279. Unlawful injury to property of railroads.

Any person who, without intent to cause injury to any person or damage to equipment, commits any of the acts referred to in G.S. 14-278 shall be guilty of a Class 2 misdemeanor.

History. R.C., c. 34, s. 101; Code, s. 1099; Rev., s. 3755; C.S., s. 4418; 1967, c. 1082, s. 2; 1985, c. 577, s. 2; 1993, c. 539, s. 175; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-279.1. Unlawful impairment of operation of railroads.

Any person who, without authorization of the affected railroad company, shall willfully do or cause to be done any act to railroad engines, equipment, or rolling stock so as to impede or prevent movement of railroad trains or so as to impair the operation of railroad equipment shall be guilty of a Class 2 misdemeanor.

History. 1979, c. 387, s. 1; 1993, c. 539, s. 176; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-280. Shooting or throwing at trains or passengers.

If any person shall willfully cast, throw or shoot any stone, rock, bullet, shot, pellet or other missile at, against, or into any railroad car, locomotive or train, or any person thereon, while such car or locomotive shall be in progress from one station to another, or while such car, locomotive or train shall be stopped for any purpose, the person so offending shall be guilty of a Class I felony.

History. 1876-7, c. 4; Code, s. 1100; 1887, c. 19; Rev., s. 3763; 1911, c. 179; C.S., s. 4419; 1985, c. 577, s. 3; 1993, c. 539, s. 1222; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Intent a Question for Jury. —

Where a defendant was indicted for shooting at a train with intent to injure it, and there was evidence tending to show that he was helplessly drunk at the time, the court properly left the question of intent to the jury, and it was for them to say whether the presumption had been rebutted. State v. Barbee, 92 N.C. 820 , 1885 N.C. LEXIS 301 (1885).

Proof That Gun Was Unloaded. —

If a gun be unloaded and this is relied on as a defense, in an action for shooting at a train, the fact must be shown by the defendant. State v. Hinson, 82 N.C. 597 , 1880 N.C. LEXIS 310 (1880).

Proof of Conspiracy. —

Upon trial for throwing stones at a train, it is not necessary to show a conspiracy, it appearing that the several defendants were not only present, but threw stones at different coaches of the same train. State v. Holder, 153 N.C. 606 , 69 S.E. 66, 1910 N.C. LEXIS 138 (1910).

Indictment. —

Upon a trial for throwing stones at a train, a charge in the bill that it was done “from one station to another” follows the form set out in the statute, and is not void vagueness and uncertainty. It is not necessary that the indictment contain the word “feloniously.” State v. Holder, 153 N.C. 606 , 69 S.E. 66, 1910 N.C. LEXIS 138 (1910).

But the indictment must charge that the train was in actual motion or stopped for a temporary purpose. State v. Boyd, 86 N.C. 634 , 1882 N.C. LEXIS 260 (1882).

§ 14-280.1. Trespassing on railroad right-of-way.

  1. Offense. —  A person commits the offense of trespassing on railroad right-of-way if the person enters and remains on the railroad right-of-way without the consent of the railroad company or the person operating the railroad or without authority granted pursuant to State or federal law.
  2. Crossings. —  Nothing in this section shall apply to a person crossing the railroad right-of-way at a public or private crossing.
  3. Legally Abandoned Rights-of-Way. —  This section shall not apply to any right-of-way that has been legally abandoned pursuant to an order of a federal or State agency having jurisdiction over the right-of-way and is not being used for railroad services.
  4. Classification. —  Trespassing on railroad right-of-way is a Class 3 misdemeanor.

History. 2000-146, s. 10.

§ 14-280.2. Use of a laser device towards an aircraft.

  1. Any person who, willfully points a laser device at an aircraft, while the device is emitting a laser beam, and while the aircraft is taking off, landing, in flight, or otherwise in motion, is guilty of a Class H felony.
  2. The following definitions apply to this section:
    1. “Aircraft” is as defined in G.S. 63-1 .
    2. “Laser” is as defined in G.S. 14-34.8 .
  3. This section shall not apply where the laser use had been approved by a State or federal agency.

History. 2005-329, s. 1.

§ 14-280.3. Interference with manned aircraft by unmanned aircraft systems.

  1. Any person who willfully damages, disrupts the operation of, or otherwise interferes with a manned aircraft through use of an unmanned aircraft system, while the manned aircraft is taking off, landing, in flight, or otherwise in motion, is guilty of a Class H felony.
  2. The following definitions apply to this section:
    1. Manned aircraft. — As defined in G.S. 15A-300.1 .
    2. Unmanned aircraft system. — As defined in G.S. 15A-300.1 .

History. 2014-100, s. 34.30(c).

Cross References.

As to operation of unmanned aircrafts, see 63-95.

§ 14-281. Operating trains and streetcars while intoxicated.

Any train dispatcher, telegraph operator, engineer, fireman, flagman, brakeman, switchman, conductor, motorman, or other employee of any steam, street, suburban or interurban railway company, who shall be intoxicated while engaged in running or operating, or assisting in running or operating, any railway train, shifting-engine, or street or other electric car, shall be guilty of a Class 2 misdemeanor.

History. 1871-2, c. 138, s. 38; Code, s. 1972; 1891, c. 114; Rev., s. 3758; 1907, c. 330; C.S., s. 4420; 1969, c. 1224, s. 3; 1993, c. 539, s. 177; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-281.1. Throwing, dropping, etc., objects at sporting events.

It shall be unlawful for any person to throw, drop, pour, release, discharge, expose or place in an area where an athletic contest or sporting event is taking place any substance or object that shall be likely to cause injury to persons participating in or attending such contests or events or to cause damage to animals, vehicles, equipment, devices, or other things used in connection with such contests or events. Any person violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

History. 1977, c. 772, s. 1; 1993, c. 539, s. 178; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-282. Displaying false lights on seashore.

If any person shall make or display, or cause to be made or displayed, any false light or beacon on or near the seacoast, for the purpose of deceiving and misleading masters of vessels, and thereby putting them in danger of shipwreck, he shall be guilty of a Class I felony.

History. 1831, c. 42; R.C., c. 34, s. 58; Code, s. 1024; Rev., s. 3430; C.S., s. 4421; 1979, 2nd Sess., c. 1316, s. 16; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1223; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-283. Exploding dynamite cartridges and bombs.

If any person shall fire off or explode, or cause to be fired off or exploded, except for mechanical purposes in a legitimate business, any dynamite cartridge, bomb or other explosive of a like nature, he shall be guilty of a Class 1 misdemeanor.

History. 1887, c. 364, s. 53; Rev., s. 3794; C.S., s. 4423; 1993, c. 539, s. 179; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to willful injury with explosives, see G.S. 14-49 .

As to burglary with explosives, see G.S. 14-57 .

Legal Periodicals.

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

§ 14-284. Keeping for sale or selling explosives without a license.

If any dealer or other person shall sell or keep for sale any dynamite cartridges, bombs or other combustibles of a like kind, without first having obtained from the board of commissioners of the county where such person or dealer resides a license for that purpose, he shall be guilty of a Class 1 misdemeanor.

History. 1887, c. 364, ss. 1, 4; Rev., s. 3817; C.S., s. 4425; 1993, c. 539, s. 180; 1994, Ex. Sess., c. 24, s. 14(c).

Local Modification.

Catawba: 1983, c. 116; Forsyth: 1983, c. 21; Mecklenburg: 1981, c. 117, s. 1; New Hanover: 1989, c. 178, s. 1; Union: 1983, c. 116.

§ 14-284.1. Regulation of sale of explosives; reports; storage.

  1. No person shall sell or deliver any dynamite or other powerful explosives as hereinafter defined without being satisfied as to the identity of the purchaser or the one to receive such explosives and then only upon the written application signed by the person or agent of the person purchasing or receiving such explosive, which application must contain a statement of the purpose for which such explosive is to be used.
  2. All persons delivering or selling such explosives shall keep a complete record of all sales or deliveries made, including the amounts sold and delivered, the names of the purchasers or the one to whom the deliveries were made, the dates of all such sales or such deliveries and the use to be made of such explosive, and shall preserve such record and make the same available to any law-enforcement officer during business hours for a period of 12 months thereafter.
  3. All persons having dynamite or other powerful explosives in their possession or under their control shall at all times keep such explosives in a safe and secure manner, and when such explosives are not in the course of being used they shall be stored and protected against theft or other unauthorized possession.
  4. As used in this section, the term “powerful explosives” includes, but shall not be limited to, nitroglycerin, trinitrotoluene, and blasting caps, detonators and fuses for the explosion thereof.
  5. Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor.
  6. The provisions of this section are intended to apply only to sales to those who purchase for use. Nothing herein contained is intended to apply to a sale made by a manufacturer, jobber, or wholesaler to a retail merchant for resale by said merchant.
  7. Nothing herein contained shall be construed as repealing any law now prohibiting the sale of firecrackers or other explosives; nor shall this section be construed as authorizing the sale of explosives now prohibited by law.

History. 1953, c. 877; 1969, c. 1224, s. 6; 1993, c. 539, s. 181; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Applicability of Section to United States. —

See Duvall v. United States, 312 F. Supp. 625, 1970 U.S. Dist. LEXIS 12908 (E.D.N.C. 1970).

Only the highest degree of care is commensurate with the dangerous nature of dynamite. Tayloe v. Southern Bell Tel. & Tel. Co., 258 N.C. 766 , 129 S.E.2d 512, 1963 N.C. LEXIS 475 (1963).

Such Care Is Required by Common Law and Statutes. —

Both the common law and the statutes of North Carolina require persons having possession and control of dynamite to use the highest degree of care to keep the explosive safe and secure and to guard others against injury from it. Tayloe v. Southern Bell Tel. & Tel. Co., 258 N.C. 766 , 129 S.E.2d 512, 1963 N.C. LEXIS 475 (1963).

Violation as Negligence. —

A violation of a statute enacted for safety and protection of the general public, such as this section, is negligence per se. Duvall v. United States, 312 F. Supp. 625, 1970 U.S. Dist. LEXIS 12908 (E.D.N.C. 1970).

A person in North Carolina who has explosives under his control or in his possession must take adequate precautions to insure that no person, and especially children, are able to gain possession of these dangerous devices. If the person fails to take such precautions, under North Carolina law he is negligent. Duvall v. United States, 312 F. Supp. 625, 1970 U.S. Dist. LEXIS 12908 (E.D.N.C. 1970).

Discarding Dynamite Cap Is Negligence. —

To discard or leave a dynamite cap where either a child or unversed adult might pick it up and cause it to explode is positive negligence. Tayloe v. Southern Bell Tel. & Tel. Co., 258 N.C. 766 , 129 S.E.2d 512, 1963 N.C. LEXIS 475 (1963).

Dynamite Must Be Shown to Have Been Defendant’s Property. —

To hold a defendant liable for injury caused by dynamite there must be evidence, direct or circumstantial, sufficient to support a finding that it was his property, or property he had abandoned; otherwise, the verdict is a mere guess, which cannot be permitted. Tayloe v. Southern Bell Tel. & Tel. Co., 258 N.C. 766 , 129 S.E.2d 512, 1963 N.C. LEXIS 475 (1963).

§ 14-284.2. Dumping of toxic substances.

  1. It shall be unlawful to deposit, place, dump, discharge, spill, release, burn, incinerate, or otherwise dispose of any toxic substances as defined in this section or radioactive material as defined in G.S. 104E-5 into the atmosphere, in the waters, or on land, except where such disposal is conducted pursuant to federal or State law, regulation, or permit. Any person who willfully violates the provisions of this section shall be guilty of a Class F felony. The fine authorized by G.S. 14-1.1(a)(8) for a conviction under this section may include a fine of up to one hundred thousand dollars ($100,000) per day of violation.
  2. Within the meaning of this section, toxic substances are defined as the following heavy metals and halogenated hydrocarbons:
    1. Heavy metals: mercury, plutonium, selenium, thallium and uranium;
    2. Halogenated hydrocarbons: polychlorinated biphenyls, kepone.
  3. Within the meaning of this section, the phrase “law, regulation or permit” includes controls over equipment or machinery that emits substances into the atmosphere, in waters, or on land (such as federal or State controls over motor vehicle emissions) and controls over sources of substances that are publicly consumed (such as drinking water standards), as well as controls over substances directly released into the atmosphere, in waters, or on land (such as pesticide controls and water pollution controls).
  4. Within the meaning of this section the term “person” includes any individual, firm, partnership, limited partnership, corporation or association.

History. 1979, c. 981, s. 2; 1979, 2nd Sess., c. 1316, s. 17; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1224; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

§ 14-285. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72.

§ 14-286. Giving false fire alarms; molesting fire-alarm, fire-detection or fire-extinguishing system.

  1. Offense. —  It shall be unlawful for any person or persons to wantonly and willfully give or cause to be given, or to advise, counsel, or aid and abet anyone in giving, a false alarm of fire, or to break the glass key protector, or to pull the slide, arm, or lever of any station or signal box of any fire-alarm system, except in case of fire, or willfully misuse or damage a portable fire extinguisher, or in any way to willfully interfere with, damage, deface, molest, or injure any part or portion of any fire-alarm, fire-detection, smoke-detection or fire-extinguishing system.
  2. Penalty. —  Any person who willfully interferes with, damages, defaces, molests, or injures any part or portion of a fire-alarm, fire-detection, smoke-detection, or fire-extinguishing system in a prison or local confinement facility is guilty of a Class H felony. Any person who commits any other violation of this section is guilty of a Class 2 misdemeanor. For purposes of this subsection, the term “local confinement facility” means a county or city jail, a local lockup, or a detention facility for adults operated by a local government.

History. 1921, c. 46; C.S., s. 4426(a); 1961, c. 594; 1969, c. 1224, s. 5; 1975, c. 346; 1993, c. 539, s. 182; 1994, Ex. Sess., c. 24, s. 14(c); 2019-134, s. 1.

Editor’s Note.

Session Laws 2019-134, s. 2, made the rewriting of this section by Session Laws 2019-134, s. 1, effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2019-134, s. 1, effective December 1, 2019, divided the former paragraph into two subsections, (a) and (b), and added the introductory wording of “(a) Offense. —” and “(b) Penalty. —”; added the first and third sentences of subsection (b); and substituted “who commits any other violation” for “violating any of the provisions” and “is” for “shall be” in the second sentence of subsection (b). For effective date and applicability, see editor’s note.

§ 14-286.1. Making false ambulance request.

It shall be unlawful for any person to willfully summon an ambulance or willfully report that an ambulance is needed when such person does not have good cause to believe that the services of an ambulance are needed. Every person convicted of willfully violating this section shall be guilty of a Class 3 misdemeanor.

History. 1967, c. 343, s. 6; 1993, c. 539, s. 183; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-286.2. Interfering with emergency communication.

  1. Offense. —  A person who intentionally interferes with an emergency communication, knowing that the communication is an emergency communication, and who is not making an emergency communication himself, is guilty of a Class A1 misdemeanor. In addition, a person who interferes with a communications instrument or other emergency equipment with the intent to prevent an emergency communication is guilty of a Class A1 misdemeanor.
  2. Repealed by Session Laws 2001-148, s. 1, effective December 1, 2001.

    (b1) Definitions. — The following definitions apply in this section:

    1. Emergency communication. — The term includes communications to law enforcement agencies or other emergency personnel, or other individuals, relating or intending to relate that an individual is or is reasonably believed to be, or reasonably believes himself or another person to be, in imminent danger of bodily injury, or that an individual reasonably believes that his property or the property of another is in imminent danger of substantial damage, injury, or theft.
    2. Intentional interference. — The term includes forcefully removing a communications instrument or other emergency equipment from the possession of another, hiding a communications instrument or other emergency equipment from another, or otherwise making a communications instrument or other emergency equipment unavailable to another, disconnecting a communications instrument or other emergency equipment, removing a communications instrument from its connection to communications lines or wavelengths, damaging or otherwise interfering with communications equipment or connections between a communications instrument and communications lines or wavelengths, disabling a theft-prevention alarm system, providing false information to cancel an earlier call or otherwise falsely indicating that emergency assistance is no longer needed when it is, and any other type of interference that makes it difficult or impossible to make an emergency communication or that conveys a false impression that emergency assistance is unnecessary when it is needed.

History. 1987, c. 690, s. 1; 1993, c. 539, s. 184; 1994, Ex. Sess., c. 24, s. 14(c); 2001-148, s. 1.

§ 14-287. Leaving unused well open and exposed.

It shall be unlawful for any person, firm or corporation, after discontinuing the use of any well, to leave said well open and exposed; said well, after the use of same has been discontinued, shall be carefully and securely filled: Provided, that this shall not apply to wells on farms that are protected by curbing or board walls. Any person violating any of the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1923, c. 125; C.S., s. 4426(c); 1969, c. 1224, s. 5; 1993, c. 539, s. 185; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-288. Unlawful to pollute any bottles used for beverages.

It shall be unlawful for any person, firm or corporation having custody for the purpose of sale, distribution or manufacture of any beverage bottle, to place, cause or permit to be placed therein turpentine, varnish, wood alcohol, bleaching water, bluing, kerosene, oils, or any unclean or foul substance, or other offensive material, or to send, ship, return and deliver or cause or permit to be sent, shipped, returned or delivered to any producer of beverages, any bottle used as a container for beverages, and containing any turpentine, varnish, wood alcohol, bleaching water, bluing, kerosene, oils, or any unclean or foul substance, or other offensive material. Any person, firm or corporation violating the provisions of this section shall be guilty of a Class 3 misdemeanor, and upon conviction shall be fined on the first offense, one dollar ($1.00) for each bottle so defiled, and for any subsequent offense not more than ten dollars ($10.00) for each bottle so defiled.

History. 1929, c. 324, s. 1; 1993, c. 539, s. 186; 1994, Ex. Sess., c. 24, s. 14(c).

Article 36A. Riots, Civil Disorders, and Emergencies.

§ 14-288.1. Definitions.

Unless the context clearly requires otherwise, the following definitions apply in this Article:

  1. Chairman of the board of county commissioners. — The chairman of the board of county commissioners or, in case of the chairman’s absence or disability, the person authorized to act in the chairman’s stead. Unless the governing body of the county has specified who is to act in lieu of the chairman with respect to a particular power or duty set out in this Article, the term “chairman of the board of county commissioners” shall apply to the person generally authorized to act in lieu of the chairman.
  2. Dangerous weapon or substance. — Any deadly weapon, ammunition, explosive, incendiary device, radioactive material or device, as defined in G.S. 14-288.8(c)(5), or any instrument or substance designed for a use that carries a threat of serious bodily injury or destruction of property; or any instrument or substance that is capable of being used to inflict serious bodily injury, when the circumstances indicate a probability that such instrument or substance will be so used; or any part or ingredient in any instrument or substance included above, when the circumstances indicate a probability that such part or ingredient will be so used.
  3. Declared state of emergency. — A state of emergency as that term is defined in G.S. 166A-19.3 or a state of emergency found and declared by any chief executive official or acting chief executive official of any county or municipality acting under the authority of any other applicable statute or provision of the common law to preserve the public peace in a state of emergency, or by any executive official or military commanding officer of the United States or the State of North Carolina who becomes primarily responsible under applicable law for the preservation of the public peace within any part of North Carolina.
  4. Disorderly conduct. — As defined in G.S. 14-288.4(a). (4a) Emergency. — As defined in G.S. 166A-19.3 .
  5. Law enforcement officer. — Any officer of the State of North Carolina or any of its political subdivisions authorized to make arrests; any other person authorized under the laws of North Carolina to make arrests and either acting within that person’s territorial jurisdiction or in an area in which that person has been lawfully called to duty by the Governor or any mayor or chairman of the board of county commissioners; any member of the Armed Forces of the United States, the North Carolina National Guard, or the North Carolina State Defense Militia called to duty in a state of emergency in North Carolina and made responsible for enforcing the laws of North Carolina or preserving the public peace; or any officer of the United States authorized to make arrests without warrant and assigned to duties that include preserving the public peace in North Carolina.
  6. Mayor. — The mayor or other chief executive official of a municipality or, in case of that person’s absence or disability, the person authorized to act in that person’s stead. Unless the governing body of the municipality has specified who is to act in lieu of the mayor with respect to a particular power or duty set out in this Article, the word “mayor” shall apply to the person generally authorized to act in lieu of the mayor.
  7. Municipality. — Any active incorporated city or town, but not including any sanitary district or other municipal corporation that is not a city or town. An “active” municipality is one which has conducted the most recent election required by its charter or the general law, whichever is applicable, and which has the authority to enact general police-power ordinances.
  8. Public disturbance. — Any annoying, disturbing, or alarming act or condition exceeding the bounds of social toleration normal for the time and place in question which occurs in a public place or which occurs in, affects persons in, or is likely to affect persons in a place to which the public or a substantial group has access. The places covered by this definition shall include, but not be limited to, highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.
  9. Riot. — As defined in G.S. 14-288.2(a) .
  10. Repealed by Session Laws 2012-12, s. 2(a), effective October 1, 2012.

History. 1969, c. 869, s. 1; 1975, c. 718, s. 5; 2009-281, s. 1; 2011-183, s. 10; 2012-12, s. 2(a).

Cross References.

As to the Governor ordering a cessation of all sales, manufacture, and delivery of alcoholic beverages during a state of emergency, see G.S. 18B-110 .

As to emergency management, generally, see G.S. 166A-19 et seq.

As to additional powers of Governor during states of emergency, see G.S. 166A-19.30 .

As to power of municipalities and counties to enact ordinances to deal with states of emergency, see G.S. 166A-19.31 .

Editor’s Note.

Session Laws 2012-12, s. 1(c), effective October 1, 2012, rewrote the Article 36A heading, which formerly read “Riots and Civil Disorders.”

Effect of Amendments.

Session Laws 2009-281, s. 1, effective July 10, 2009, substituted “National Guard” for “national guard” in subdivision (5).

Session Laws 2011-183, s. 10, effective June 20, 2011, in subdivision (1), twice substituted “the chairman’s” for “his”; in subdivision (5), substituted “Armed Forces” for “armed forces” and “North Carolina State Defense Militia” for “State defense militia,” and made minor stylistic changes; and in subdivision (6), twice substituted “that person’s” for “his.”

Session Laws 2012-12, s. 2(a), effective October 1, 2012, substituted “following definitions apply in this Article” for “definitions in this section apply throughout this Article” in the introductory paragraph; in subdivision (3), added “as that term is defined in G.S. 166A-19.3 or a state of emergency” and substituted “declared by” for “proclaimed by the Governor under the authority of G.S. 14-288.15, by any mayor or other municipal official or officials under the authority of G.S. 14-288.12 , by any chairman of the board of commissioners of any county or other county official or officials under the authority of G.S. 14-288.13, by any chairman of the board of county commissioners acting under the authority of G.S. 14-288.14, by”; added subdivision (4a); deleted subdivision (10), defining “State of emergency”; and made minor punctuation changes.

CASE NOTES

Constitutionality. —

The statutory scheme of this Article is not unconstitutional in contravention of the U.S. Const., Amends. I, IV, IX, and XIV and N.C. Const., Art. I, § 19. State v. Dobbins, 9 N.C. App. 452, 176 S.E.2d 353, 1970 N.C. App. LEXIS 1384 (1970), aff'd, 277 N.C. 484 , 178 S.E.2d 449, 1971 N.C. LEXIS 1049 (1971).

Riot Control Act of 1969 was invalid as applied to plaintiffs because it excessively intruded upon plaintiffs’ Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that was at the very core of the Second Amendment; the emergency declaration statutes, are not narrowly tailored to serve the government’s interest in public safety. Bateman v. Perdue, 881 F. Supp. 2d 709, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. 2012).

Riot Control Act of 1969 is subject to strict scrutiny because the prohibition of the transportation or possession of both “deadly weapons” and ammunition off one’s own premises under G.S. 14-288.7 applies equally to all individuals and to all classes of firearms, not just handguns; the Act prohibits law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense. Bateman v. Perdue, 881 F. Supp. 2d 709, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. 2012).

While the bans imposed pursuant to the Riot Control Act of 1969 may be limited in duration, the statute strips peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment; as such, the law is at the far end of the spectrum of infringement on protected Second Amendment rights, and the emergency declaration statutes are presumed invalid. Bateman v. Perdue, 881 F. Supp. 2d 709, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. 2012).

Riot Control Act of 1969 is subject to strict scrutiny because acting pursuant to G.S. 14-288.12(b), 14-288.13(b), 14-288.14(a), and 14-288.15(d), government officials may outright ban the possession, transportation, sale, purchase, storage or use of dangerous firearms and ammunition during a declared state of emergency, even within one’s home where the need for defense of self, family, and property is most acute. Bateman v. Perdue, 881 F. Supp. 2d 709, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. 2012).

Action in Federal Court Attacking Constitutionality of Article. —

The rule is that in addition to facial unconstitutionality of a statute, not susceptible of a limiting state court construction, involving fundamental constitutional rights, federal courts must abstain unless there is a showing of bad faith or harassment, and a showing that the enforcement of the statute will result in irreparable harm that is both great and immediate; a “chilling effect” on rights protected by U.S. Const., Amend. I will not by itself justify intervention. Therefore, where there was no showing of a bad faith use of this article or that it had been used in a threatening or harassing manner against the plaintiffs or anyone else, and a voluntary dismissal was taken in the State court suit for injunctive relief, which relief had been granted pursuant to G.S. 14-288.18 , and there was no evidence that any of the plaintiffs had been arrested or threatened since they were charged with violating the article, an action attacking its constitutionality was dismissed. Fuller v. Scott, 328 F. Supp. 842, 1971 U.S. Dist. LEXIS 12786 (M.D.N.C. 1971).

Subdivision (8) Is Not an Essential Part of G.S. 14-288.4(a)(4)a. —

See State v. Strickland, 27 N.C. App. 40, 217 S.E.2d 758, 1975 N.C. App. LEXIS 1745 (1975).

For discussion as to forest rangers and the public duty doctrine, see Myers v. McGrady, 170 N.C. App. 501, 613 S.E.2d 334, 2005 N.C. App. LEXIS 1087 (2005), rev'd, 360 N.C. 460 , 628 S.E.2d 761, 2006 N.C. LEXIS 47 (2006).

§ 14-288.2. Riot; inciting to riot; punishments.

  1. A riot is a public disturbance involving an assemblage of three or more persons which by disorderly and violent conduct, or the imminent threat of disorderly and violent conduct, results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property.
  2. Any person who willfully engages in a riot is guilty of a Class 1 misdemeanor.
  3. Any person who willfully engages in a riot is guilty of a Class H felony, if:
    1. In the course and as a result of the riot there is property damage in excess of fifteen hundred dollars ($1,500) or serious bodily injury; or
    2. Such participant in the riot has in his possession any dangerous weapon or substance.
  4. Any person who willfully incites or urges another to engage in a riot, so that as a result of such inciting or urging a riot occurs or a clear and present danger of a riot is created, is guilty of a Class 1 misdemeanor.
  5. Any person who willfully incites or urges another to engage in a riot, and such inciting or urging is a contributing cause of a riot in which there is property damage in excess of fifteen hundred dollars ($1,500) or serious bodily injury, shall be punished as a Class F felon.

History. 1969, c. 869, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 187, 188, 1225, 1226.; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

This section is constitutionally valid. State v. Brooks, 24 N.C. App. 338, 210 S.E.2d 535, 1975 N.C. App. LEXIS 2386 , aff'd in part and rev'd in part, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

The scope of this section in no way infringes upon the freedom of nonviolent assemblage. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

The reach of this section is not so pervasive as to include activity protected by the First Amendment. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

The fact that correct application of this section requires a cross reference through interlocking statutory descriptions does not make this section so complex and imprecise as to be unconstitutional. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

This section is not unconstitutionally vague. State v. Riddle, 45 N.C. App. 34, 262 S.E.2d 322, 1980 N.C. App. LEXIS 2577 (1980).

There is no federal law restraining prosecutions for riot. Frinks v. North Carolina, 333 F. Supp. 169, 1971 U.S. Dist. LEXIS 11021 (E.D.N.C. 1971), aff'd, 468 F.2d 639, 1972 U.S. App. LEXIS 7301 (4th Cir. 1972).

The 1964 Federal Civil Rights Act does not in any sense void the anti-riot laws of North Carolina. Frinks v. North Carolina, 468 F.2d 639, 1972 U.S. App. LEXIS 7301 (4th Cir. 1972), cert. denied, 411 U.S. 920, 93 S. Ct. 1552, 36 L. Ed. 2d 314, 1973 U.S. LEXIS 2892 (1973).

The key words of the statutory definition of riot are “three persons,” “violent conduct,” and “clear and present danger of injury or damage.” State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

The words of this section are not words so vague and imprecise that men of common intelligence and understanding must guess at their meanings. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

One purpose for codifying riot as an offense was to simplify the common law by setting out in concrete form the essential elements that constitute this crime. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

The State has a paramount duty to maintain order not only in the streets but in schools, hospitals and other public places. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

The advocacy of imminent lawless action is not protected by U.S. Const., Amend. I. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

Advocacy of imminent lawless action is the only type of speech that can come within the purview of this section. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

Damage or Injury or Threat Thereof. —

A public disturbance involving three or more people, no matter how noisy or boisterous, cannot, under the statutory definition, be a riot unless violence or the threat of immediate violence which poses a clear and present danger to persons or property is present. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

Under subsection (a) the capacity of members of the assemblage to inflict injury or damage to persons or property or to create the clear and present danger of such injury or damage is material to the crime of riot and is relevant to establish the proposition defendant was engaged in a riot. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

The component elements that constitute the crime of riot are: (1) public disturbance; (2) assemblage; (3) three or more persons; (4) disorderly and violent conduct, or the imminent threat of such conduct; and (5) results in injury or damage to persons or property or creates a clear and present danger of injury or damage to persons or property. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975); State v. Riddle, 45 N.C. App. 34, 262 S.E.2d 322, 1980 N.C. App. LEXIS 2577 (1980).

The common-law crime of unlawful assembly, which is a component element of common-law riot, contains the following elements: (1) the participation of three or more persons; (2) a common intent to attain a purpose which will interfere with the rights of others by committing disorderly acts; and (3) a purpose to commit acts in such manner as would cause firm persons to apprehend a breach of peace. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

Involuntariness Does Not Negate Fact of Assemblage. —

While an assemblage of prison inmates is involuntary, the involuntariness does not negate the fact of an assemblage within the meaning of subsection (a) of this section. State v. Riddle, 45 N.C. App. 34, 262 S.E.2d 322, 1980 N.C. App. LEXIS 2577 (1980).

Warrant charging “engaging in a riot” states a proper cause of action. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

Failure of Warrant to State Crime. —

Warrant charging that defendant did unlawfully, willfully incite a riot by urging three or more persons to congregate at Prospect School, Robeson County, North Carolina, thereby creating a clear and present danger of a riot fails to state the commission of any criminal offense, much less the offense of inciting a riot. State v. Brooks, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

Petition for Removal of Prosecution to Federal Court. —

Where defendants, charged with inciting and/or engaging in a riot, alleged in their petition for removal to the United States District Court that they were peaceably exercising their rights to public accommodations, removal under 28 U.S.C. § 1443(1) was not required simply by reason of an artfully drafted petition. Nor was an evidentiary hearing required because the petition alleged a peaceful exercise of civil rights. Frinks v. North Carolina, 333 F. Supp. 169, 1971 U.S. Dist. LEXIS 11021 (E.D.N.C. 1971), aff'd, 468 F.2d 639, 1972 U.S. App. LEXIS 7301 (4th Cir. 1972).

Evidence Held Sufficient. —

Where several witnesses testified that they saw defendant in the company of three or four men harassing girls in truck, they also testified that defendant was fighting with the others present and that he pulled a knife and cut the three victims, the knife was identified at trial, and photographic evidence as well as testimony from treating personnel confirmed the severity of the knife wounds, there was evidence sufficient to go to the jury on a charge of felonious rioting. State v. Hunt, 100 N.C. App. 43, 394 S.E.2d 221, 1990 N.C. App. LEXIS 836 (1990).

Evidence of defendant’s resistance to being arrested and the apparent assault on police officer did not by itself appear sufficient to support the charge of participation in riotous activity. However, this conduct when coupled with the defendant’s deliberate act of running into the table upon which the officer was standing while the riot was taking place, was clearly sufficient to show that the defendant “willfully engaged” in the riot. State v. Mitchell, 110 N.C. App. 250, 429 S.E.2d 580, 1993 N.C. App. LEXIS 455 (1993).

§ 14-288.3. Provisions of Article intended to supplement common law and other statutes.

The provisions of this Article are intended to supersede and extend the coverage of the common-law crimes of riot and inciting to riot. To the extent that such common-law offenses may embrace situations not covered under the provisions of this Article, however, criminal prosecutions may be brought for such crimes under the common law. All other provisions of the Article are intended to be supplementary and additional to the common law and other statutes of this State and, except as specifically indicated, shall not be construed to abrogate, abolish, or supplant other provisions of law. In particular, this Article shall not be deemed to abrogate, abolish, or supplant such common-law offenses as unlawful assembly, rout, conspiracy to commit riot or other criminal offenses, false imprisonment, and going about armed to the terror of the populace and other comparable public-nuisance offenses.

History. 1969, c. 869, s. 1.

§ 14-288.4. Disorderly conduct.

  1. Disorderly conduct is a public disturbance intentionally caused by any person who does any of the following:
    1. Engages in fighting or other violent conduct or in conduct creating the threat of imminent fighting or other violence.
    2. Makes or uses any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace.
    3. Takes possession of, exercises control over, or seizes any building or facility of any public or private educational institution without the specific authority of the chief administrative officer of the institution, or his authorized representative.
    4. Refuses to vacate any building or facility of any public or private educational institution in obedience to any of the following:
      1. An order of the chief administrative officer of the institution, or the officer’s representative, who shall include for colleges and universities the vice chancellor for student affairs or the vice-chancellor’s equivalent for the institution, the dean of students or the dean’s equivalent for the institution, the director of the law enforcement or security department for the institution, and the chief of the law enforcement or security department for the institution.
      2. An order given by any fireman or public health officer acting within the scope of the fireman’s or officer’s authority.
      3. If an emergency is occurring or is imminent within the institution, an order given by any law-enforcement officer acting within the scope of the officer’s authority.
    5. Shall, after being forbidden to do so by the chief administrative officer, or the officer’s authorized representative, of any public or private educational institution:
      1. Engage in any sitting, kneeling, lying down, or inclining so as to obstruct the ingress or egress of any person entitled to the use of any building or facility of the institution in its normal and intended use; or
      2. Congregate, assemble, form groups or formations (whether organized or not), block, or in any manner otherwise interfere with the operation or functioning of any building or facility of the institution so as to interfere with the customary or normal use of the building or facility.
    6. Disrupts, disturbs or interferes with the teaching of students at any public or private educational institution or engages in conduct which disturbs the peace, order or discipline at any public or private educational institution or on the grounds adjacent thereto.

      (6a) Engages in conduct which disturbs the peace, order, or discipline on any public school bus or public school activity bus.

    7. Except as provided in subdivision (8) of this subsection, disrupts, disturbs, or interferes with a religious service or assembly or engages in conduct which disturbs the peace or order at any religious service or assembly.
    8. Engages in conduct with the intent to impede, disrupt, disturb, or interfere with the orderly administration of any funeral, memorial service, or family processional to the funeral or memorial service, including a military funeral, service, or family processional, or with the normal activities and functions occurring in the facilities or buildings where a funeral or memorial service, including a military funeral or memorial service, is taking place. Any of the following conduct that occurs within two hours preceding, during, or within two hours after a funeral or memorial service shall constitute disorderly conduct under this subdivision:
      1. Displaying, within 500 feet of the ceremonial site, location being used for the funeral or memorial, or the family’s processional route to the funeral or memorial service, any visual image that conveys fighting words or actual or imminent threats of harm directed to any person or property associated with the funeral, memorial service, or processional route.
      2. Uttering, within 500 feet of the ceremonial site, location being used for the funeral or memorial service, or the family’s processional route to the funeral or memorial service, loud, threatening, or abusive language or singing, chanting, whistling, or yelling with or without noise amplification in a manner that would tend to impede, disrupt, disturb, or interfere with a funeral, memorial service, or processional route.
      3. Attempting to block or blocking pedestrian or vehicular access to the ceremonial site or location being used for a funeral or memorial.

        As used in this section the term “building or facility” includes the surrounding grounds and premises of any building or facility used in connection with the operation or functioning of such building or facility.

  2. Except as provided in subsection (c) of this section, any person who willfully engages in disorderly conduct is guilty of a Class 2 misdemeanor.
  3. A person who commits a violation of subdivision (8) of subsection (a) of this section is guilty of:
    1. A Class 1 misdemeanor for a first offense.
    2. A Class I felony for a second offense.
    3. A Class H felony for a third or subsequent offense.

History. 1969, c. 869, s. 1; 1971, c. 668, s. 1; 1973, c. 1347; 1975, c. 19, s. 4; 1983, c. 39, s. 5; 1987, c. 671, s. 1; 1993, c. 539, s. 189; 1994, Ex. Sess., c. 24, s. 14(c); 2001-26, s. 2; 2006-169, s. 1; 2012-12, s. 2(b); 2013-6, s. 1.

Cross References.

As to Governor’s power to order evacuation of public buildings, see G.S. 166A-19.78 .

Editor’s Note.

Session Laws 1971, c. 668, which amended this section, in s. 2 provided: “Every word, clause, sentence, paragraph, section, or other part of this act shall be interpreted in such manner as to be as expansive as the Constitution of the United States and the Constitution of North Carolina permit.”

Effect of Amendments.

Session Laws 2006-169, s. 1, effective December 1, 2006, and applicable to offenses committed on or after that date, in subsection (a), added “does any of the following” at the end of the introductory paragraph, rewrote subdivision (a)(4), substituted “the officer’s” for “his” in the middle of subdivision (a)(5), inserted “Except as provided in subdivision (8) of this subsection” at the beginning of subdivision (a)(7), added subdivision (a)(8), and made minor stylistic and punctuation changes; inserted “Except as provided in subsection (c) of this section” at the beginning of subsection (b); and added subsection (c).

Session Laws 2012-12, s. 2(b), effective October 1, 2012, in subdivision (a)(4)c., substituted “an emergency” for “a state of emergency.”

Session Laws 2013-6, s. 1, effective December 1, 2013, in subdivision (a)(8), substituted “two hours” for “one hour” twice in the last sentence of the introductory language; substituted “500 feet” for “300 feet” in sub-subdivisions (a)(8)a. and (a)(8)b.; substituted “Class 1” for “Class 2” in subdivision (c)(1); substituted “Class I felony” for “Class 1 misdemeanor” in subdivision (c)(2); and substituted “Class H” for “Class I” in subdivision (c)(3). For applicability, see editor’s note.

Legal Periodicals.

For article, “Privacy and Funeral Protests,” see 87 N.C.L. Rev. 151 (2008).

For comment, “Rothgery v. Gillespie County: Applying the Supreme Court’s Latest Sixth Amendment Jurisprudence to North Carolina Criminal Procedure,” see 33 Campbell L. Rev. 477 (2011).

CASE NOTES

Analysis

I.General Consideration

Former Provisions Held Unconstitutional. —

Former subdivision (a)(3) and a portion of subdivision (a)(2) as it stood before the 1971 amendment, which proscribed offensively coarse utterances and acts such as to alarm and disturb persons present, were unconstitutionally vague and overbroad. State v. Summrell, 282 N.C. 157 , 192 S.E.2d 569, 1972 N.C. LEXIS 924 (1972).

Constitutionality of Subdivision (a)(4)a. —

Subdivision (a)(4)a makes it clear that a violation of the statute occurs when a person intentionally refuses to vacate any building or facility of any public or private educational institution after having been ordered to do so by the chief administrative officer of the institution or his authorized representative, and the statute is not unconstitutionally vague. State v. Strickland, 27 N.C. App. 40, 217 S.E.2d 758, 1975 N.C. App. LEXIS 1745 (1975).

Legislative Guidelines Not Needed. —

The validity of subdivision (a)(4)a making it a misdemeanor to refuse to vacate an educational institution building after having been ordered to do so by the chief administrative officer of the institution or his representative does not depend upon the enactment by the legislature of detailed guidelines for the guidance of the specified school officials in the exercise of their responsibility to control the use of the buildings and facilities under their care. State v. Strickland, 27 N.C. App. 40, 217 S.E.2d 758, 1975 N.C. App. LEXIS 1745 (1975).

Search And Seizure. —

Officer had reasonable suspicion to approach defendant juvenile because defendant screamed an obscenity at him; while merely stating an obscenity to another individual, whether that person is a policeman or a civilian, may be protected speech, an officer is not precluded from approaching any individual who is standing in public and yelling obscenities, as such actions might lead to a breach of the peace. In re V.C.R., 227 N.C. App. 80, 742 S.E.2d 566, 2013 N.C. App. LEXIS 484 (2013).

There was no reasonable suspicion to justify a state trooper stopping the SUV in which defendant was a passenger because, from the trooper’s testimony it was inferred that defendant was waving from the passenger window of an SUV and, a few seconds later, began to gesture with defendant’s middle finger; the trooper did not know whether defendant’s gesture was directed at the trooper or at another driver; and, after pursuing the vehicle for approximately half a mile, the trooper did not observe any traffic violations or other suspicious behavior. State v. Ellis, 374 N.C. 340 , 841 S.E.2d 247, 2020 N.C. LEXIS 363 (2020).

A motion to dismiss a juvenile petition is recognized by North Carolina statutory and case law. In re Grubb, 103 N.C. App. 452, 405 S.E.2d 797, 1991 N.C. App. LEXIS 807 (1991).

Fighting or Insulting Words May Constitutionally Be Prevented and Punished. —

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been though to raise any constitutional problem. These include the insulting or “fighting” words which by their very utterance tend to incite an immediate breach of the peace. State v. Summrell, 282 N.C. 157 , 192 S.E.2d 569, 1972 N.C. LEXIS 924 (1972).

There can be no doubt that the General Assembly intended to prohibit “fighting words,” words tending to cause an immediate breach of the peace willfully spoken in a public place, and that such an interpretation accurately expresses the legislative purpose. State v. Summrell, 282 N.C. 157 , 192 S.E.2d 569, 1972 N.C. LEXIS 924 (1972); State v. Orange, 22 N.C. App. 220, 206 S.E.2d 377, 1974 N.C. App. LEXIS 2285 (1974), cert. denied, 420 U.S. 996, 95 S. Ct. 1431, 43 L. Ed. 2d 675, 1975 U.S. LEXIS 1109 (1975).

Profanities in Emergency Room. —

Where defendant, when he was informed that the doctor whom he had demanded was not immediately available, began shouting profanities, cursing, and loudly voicing unfounded complaints, his words and mode of communication in hospital emergency room were not protected by the U.S. Const., Amend. I. State v. Summrell, 282 N.C. 157 , 192 S.E.2d 569, 1972 N.C. LEXIS 924 (1972).

Disorderly Conduct in School. —

The conduct in question must substantially interfere with the operation of school to rise to the level of disorderly conduct. In re Grubb, 103 N.C. App. 452, 405 S.E.2d 797, 1991 N.C. App. LEXIS 807 (1991).

When the words “interrupt” and “disturb” are used in conjunction with the word “school,” they mean a substantial interference with, disruption of and confusion of the operation of the school in its program of instruction and training of students there enrolled. In re Eller, 103 N.C. App. 625, 406 S.E.2d 299, 1991 N.C. App. LEXIS 869 (1991), rev'd, 331 N.C. 714 , 417 S.E.2d 479, 1992 N.C. LEXIS 425 (1992).

Evidence that a student stopped talking after being asked a second time and that the class was only momentarily disrupted, even in the light most favorable to the State, was insufficient to establish a violation of subdivision (a)(6). In re Grubb, 103 N.C. App. 452, 405 S.E.2d 797, 1991 N.C. App. LEXIS 807 (1991).

For charge of disorderly conduct involving schools, there needed to be substantial interference with, disruption of, and confusion of the operation of a school in its program of instructing and training the students there enrolled; a juvenile adjudication would be reversed where the evidence did not support a finding of disorderly conduct involving schools. In re Brown, 150 N.C. App. 127, 562 S.E.2d 583, 2002 N.C. App. LEXIS 401 (2002).

Given the severity and nature of defendant’s language, coupled with the fact that a teacher was required to stop teaching her class for at least several minutes, defendant’s actions substantially interfered with the operation of a classroom and supported a juvenile delinquency adjudication based on disorderly conduct in a school. In re Pineault, 152 N.C. App. 196, 566 S.E.2d 854, 2002 N.C. App. LEXIS 896 (2002).

Defendant, a juvenile, was properly adjudicated delinquent for disorderly conduct on school grounds where defendant yelled a profanity at other students and caused the reporting teacher to be away from assigned duties for several minutes, disrupting operations. In re M.G., 156 N.C. App. 414, 576 S.E.2d 398, 2003 N.C. App. LEXIS 130 (2003).

Defendant juvenile’s conduct caused a substantial interference with, disruption of, and confusion of the operation of the school, and the defendant’s conduct merited intervention by several teachers, the school resource officer, and the assistant principal, plus a group of special needs students missed their buses, and the trial court did not err in denying the defendant’s motion to dismiss the charge of disorderly conduct. In re M.J.G., 234 N.C. App. 350, 759 S.E.2d 361, 2014 N.C. App. LEXIS 611 (2014).

Court of appeals declined to suspend appellate rules and review defendant juvenile’s argument because the State’s evidence showed defendant encouraged a student to pull a fire alarm several times, resulting in chaos on school grounds which endangered students; defendant’s actions disrupted, disturbed, and interfered with the teaching of students and disturbed the peace, order or discipline at the middle school, and defendant subsequently harassed the student about talking with law enforcement. In re I.W.P., 259 N.C. App. 254, 815 S.E.2d 696, 2018 N.C. App. LEXIS 448 (2018).

Police chief had a reasonable, articulable suspicion that disorderly conduct at a school may be underway because he received information about a disturbance at the school, he noticed parents standing and looking towards defendant’s truck, the principal was standing near the truck, defendant was staring intently at the chief in his side view mirror, defendant asked the chief if he was being detained, and the chief concluded that defendant was the person involved in the disturbance and told him he was not free to leave. The chief lawfully detained defendant for a brief investigatory stop. State v. Thompson, 868 S.E.2d 157, 2022- NCCOA-6, 2022 N.C. App. LEXIS 6 (N.C. Ct. App. 2022).

Disturbance in Bar. —

The allegation that defendant created a “little bit of disturbance” earlier in a bar did not demonstrate sufficiently provocative behavior to rise to the level of disorderly conduct under this section. State v. Sanders, 295 N.C. 361 , 245 S.E.2d 674, 1978 N.C. LEXIS 888 (1978).

Vague Language in Warrant Disregarded as Surplusage. —

Unconstitutionally vague and overly broad language in a warrant for disorderly conduct could be disregarded as surplusage and the conviction under the warrant upheld where, absent the unconstitutional language, the warrant still alleged all the essential elements of subdivision (a)(2). State v. Cunningham, 34 N.C. App. 72, 237 S.E.2d 334, 1977 N.C. App. LEXIS 1582 (1977).

Where the trial judge inadvertently failed to note the 1971 amendment to this section in his instructions to the jury and in so doing charged concerning disorderly conduct in the language of subdivisions (1) and (2) of subsection (a) as those subdivisions were originally enacted in 1969, the court’s charge failed to limit the definition of disorderly conduct to embrace only actions and words likely to bring on an immediate breach of the peace, as would be required by the 1971 amendment. For this error in the charge, defendant was entitled to a new trial in the case charging him with failing to comply with a lawful order to disperse. State v. Brooks, 24 N.C. App. 338, 210 S.E.2d 535, 1975 N.C. App. LEXIS 2386 , aff'd in part and rev'd in part, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

Indictment Held Insufficient. —

Trial court lacked jurisdiction where the warrant charging defendant with misdemeanor disorderly conduct in a public building alleged that he caused disruption by causing a disturbance, but did not allege specific acts, and nothing suggested that defendant made or used any utterance, gesture, display, or abusive language that was intended and plainly likely to provoke violent retaliation. State v. Combs, 261 N.C. App. 774, 818 S.E.2d 642, 2018 N.C. App. LEXIS 975 (2018).

Evidence Insufficient for Disorderly Conduct Conviction. —

Trial court erred in denying a juvenile’s motion to dismiss the charge of disorderly conduct in a school in violation of G.S. 14-288.4(a)(6) because although the juvenile’s behavior was an annoyance to the dean of students of a high school, it did not rise to the level of criminal activity; there was no evidence that the school or classroom instruction was substantially disrupted, that the juvenile was aggressive or violent, or that the juvenile used disturbing or vulgar language. In re S.M., 190 N.C. App. 579, 660 S.E.2d 653, 2008 N.C. App. LEXIS 992 (2008).

II.Decisions under Former Provisions
A.Disturbing Schools

Editor’s Note. —

The cases below were decided under former G.S. 14-273.

Although former G.S. 14-273 has been repealed, it is instructive as to the meaning of “disruptive conduct.” In re Grubb, 103 N.C. App. 452, 405 S.E.2d 797, 1991 N.C. App. LEXIS 807 (1991).

“Interrupt” means “to break the uniformity or continuity of; to break in upon an action.” State v. Wiggins, 272 N.C. 147 , 158 S.E.2d 37, 1967 N.C. LEXIS 993 (1967), cert. denied, 390 U.S. 1028, 88 S. Ct. 1418, 20 L. Ed. 2d 285, 1968 U.S. LEXIS 1932 (1968).

“Disturb” means “to throw into disorder.” State v. Wiggins, 272 N.C. 147 , 158 S.E.2d 37, 1967 N.C. LEXIS 993 (1967), cert. denied, 390 U.S. 1028, 88 S. Ct. 1418, 20 L. Ed. 2d 285, 1968 U.S. LEXIS 1932 (1968).

When the words “interrupt” and “disturb” are used in conjunction with the word “school,” they mean to a person of ordinary intelligence a substantial interference with, disruption of, and confusion of the operation of the school in its program of instruction and training of students there enrolled. State v. Wiggins, 272 N.C. 147 , 158 S.E.2d 37, 1967 N.C. LEXIS 993 (1967), cert. denied, 390 U.S. 1028, 88 S. Ct. 1418, 20 L. Ed. 2d 285, 1968 U.S. LEXIS 1932 (1968).

The elements of the offense punishable under former G.S. 14-273 were: (1) some act or course of conduct by the defendant, within or without the school; (2) an actual, material interference with, frustration of or confusion in, part or all of the program of a public or private school for the instruction or training of students enrolled therein and in attendance thereon, resulting from such act or conduct; and (3) the purpose or intent on the part of the defendant that his act or conduct have that effect. State v. Wiggins, 272 N.C. 147 , 158 S.E.2d 37, 1967 N.C. LEXIS 993 (1967), cert. denied, 390 U.S. 1028, 88 S. Ct. 1418, 20 L. Ed. 2d 285, 1968 U.S. LEXIS 1932 (1968); State v. Midgett, 8 N.C. App. 230, 174 S.E.2d 124, 1970 N.C. App. LEXIS 1522 (1970).

Motive No Defense. —

Nothing else appearing, the defendant’s motive for doing willfully an act forbidden by former G.S. 14-273 was no defense to charge of violation of such section. State v. Wiggins, 272 N.C. 147 , 158 S.E.2d 37, 1967 N.C. LEXIS 993 (1967), cert. denied, 390 U.S. 1028, 88 S. Ct. 1418, 20 L. Ed. 2d 285, 1968 U.S. LEXIS 1932 (1968).

Evidence Sufficient for Jury. —

In a prosecution charging that defendants unlawfully and willfully interrupted a public school, the issue of defendants’ guilt was properly submitted to the jury, where the State’s evidence tended to show that (1) the defendants entered the office of the secretary to the principal and told her that they were going to interrupt the school that day; (2) the defendants locked the secretary out of her office, moved furniture about, scattered papers, and dumped books on the floor; (3) the secretary and several teachers were kept away from their jobs or classes by these actions; (4) the defendants also occupied the principal’s office and operated the bells that normally signalled the change of classes; and (5) the principal, as a result of the commotion, was forced to dismiss school prior to the regular closing hour. State v. Midgett, 8 N.C. App. 230, 174 S.E.2d 124, 1970 N.C. App. LEXIS 1522 (1970).

B.Disturbing Religious Congregations

Editor’s Note. —

The cases below were decided under former G.S. 14-275 and the statutes from which it was derived.

People Must Be Collected. —

In order to render indictable the disturbance of persons assembled for divine worship, the people, or some considerable number, must be collected at or about the time when worship is about to commence, and in the place where it is to be celebrated. State v. Bryson, 82 N.C. 576 , 1880 N.C. LEXIS 305 (1880).

And an indictment will not lie after the congregation has dispersed. State v. Davis, 126 N.C. 1059 , 35 S.E. 600, 1900 N.C. LEXIS 360 (1900).

But the congregation need not be engaged in the act of worship. State v. Ramsey, 78 N.C. 448 , 1878 N.C. LEXIS 250 (1878).

The act itself must disturb the congregation. Information of the act, for example that a fight is in progress, will not suffice. State v. Kirby, 108 N.C. 772 , 12 S.E. 1045, 1891 N.C. LEXIS 141 (1891).

Persistent speaking in church after remonstrance from the minister was sufficient to sustain a verdict under former G.S. 14-275. See State v. Ramsey, 78 N.C. 448 , 1878 N.C. LEXIS 250 (1878).

Persistence in singing off-key where the intention was not to disturb was not sufficient to sustain a verdict under former G.S. 14-275. State v. Linkhaw, 69 N.C. 214 , 1873 N.C. LEXIS 217 (1873).

OPINIONS OF ATTORNEY GENERAL

Applicability to Non-riot Situation. — See opinion of Attorney General to Mr. G. Patrick Hunter, Jr., Charlotte Police Attorney, 40 N.C. Op. Att'y Gen. 166 (1970).

§ 14-288.5. Failure to disperse when commanded a misdemeanor; prima facie evidence.

  1. Any law-enforcement officer or public official responsible for keeping the peace may issue a command to disperse in accordance with this section if he reasonably believes that a riot, or disorderly conduct by an assemblage of three or more persons, is occurring. The command to disperse shall be given in a manner reasonably calculated to be communicated to the assemblage.
  2. Any person who fails to comply with a lawful command to disperse is guilty of a Class 2 misdemeanor.
  3. If any person remains at the scene of any riot, or disorderly conduct by an assemblage of three or more persons, following a command to disperse and after a reasonable time for dispersal has elapsed, it is prima facie evidence that the person so remaining is willfully engaging in the riot or disorderly conduct, as the case may be.

History. 1969, c. 869, s. 1; 1993, c. 539, s. 190; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

This section is constitutional. State v. Brooks, 24 N.C. App. 338, 210 S.E.2d 535, 1975 N.C. App. LEXIS 2386 , aff'd in part and rev'd in part, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

Constitutionality. —

This section is narrowly tailored to prohibit the unprotected activity of refusing to obey a valid police command under certain circumstances. Brooks v. North Carolina Dep't of Cor., 984 F. Supp. 940, 1997 U.S. Dist. LEXIS 18777 (E.D.N.C. 1997).

Failure to Disperse Where No Disorderly Conduct Was Occurring. —

Under this section the failure to disperse when commanded by an officer would be an offense where no disorderly conduct was occurring so long as it was shown on trial that the officer had reasonable grounds to believe that disorderly conduct was occurring by an assemblage of three or more persons. State v. Orange, 22 N.C. App. 220, 206 S.E.2d 377, 1974 N.C. App. LEXIS 2285 (1974), cert. denied, 420 U.S. 996, 95 S. Ct. 1431, 43 L. Ed. 2d 675, 1975 U.S. LEXIS 1109 (1975).

Evidence Required. —

It was necessary under this section for the State to present evidence of defendant’s failure to disperse on command to do so and that the officer had reasonable grounds to believe that disorderly conduct was occurring by an assemblage of three or more persons. State v. Thomas, 28 N.C. App. 495, 221 S.E.2d 749, 1976 N.C. App. LEXIS 2741 (1976).

Evidence sufficient to support jury’s finding that defendant was guilty of charge of failing to comply with lawful command to disperse. State v. Brooks, 24 N.C. App. 338, 210 S.E.2d 535, 1975 N.C. App. LEXIS 2386 , aff'd in part and rev'd in part, 287 N.C. 392 , 215 S.E.2d 111, 1975 N.C. LEXIS 1126 (1975).

§ 14-288.6. Looting; trespass during emergency.

  1. Any person who enters upon the premises of another without legal justification when the usual security of property is not effective due to the occurrence or aftermath of riot, insurrection, invasion, storm, fire, explosion, flood, collapse, or other disaster or calamity is guilty of a Class 1 misdemeanor of trespass during an emergency.
  2. Any person who commits the crime of trespass during emergency and, without legal justification, obtains or exerts control over, damages, ransacks, or destroys the property of another is guilty of the felony of looting and shall be punished as a Class H felon.

History. 1969, c. 869, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 191, 1227; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-288.7. [Repealed]

Repealed by Session Laws 2012-12, s. 2(c), effective October 1, 2012.

History. 1969, c. 869, s. 1; 1993, c. 539, s. 192; 1994, Ex. Sess., c. 24, s. 14(c); repealed by 2012-12, s. 2(c), effective October 1, 2012.

Editor’s Note.

Former G.S. 14-288.7 pertained to the transporting of a dangerous weapon or substance during emergency; possessing off premises; exceptions.

§ 14-288.8. Manufacture, assembly, possession, storage, transportation, sale, purchase, delivery, or acquisition of weapon of mass death and destruction; exceptions.

  1. Except as otherwise provided in this section, it is unlawful for any person to manufacture, assemble, possess, store, transport, sell, offer to sell, purchase, offer to purchase, deliver or give to another, or acquire any weapon of mass death and destruction.
  2. This section does not apply to any of the following:
    1. Persons exempted from the provisions of G.S. 14-269 with respect to any activities lawfully engaged in while carrying out their duties.
    2. Importers, manufacturers, dealers, and collectors of firearms, ammunition, or destructive devices validly licensed under the laws of the United States or the State of North Carolina, while lawfully engaged in activities authorized under their licenses.
    3. Persons under contract with the United States, the State of North Carolina, or any agency of either government, with respect to any activities lawfully engaged in under their contracts.
    4. Inventors, designers, ordnance consultants and researchers, chemists, physicists, and other persons lawfully engaged in pursuits designed to enlarge knowledge or to facilitate the creation, development, or manufacture of weapons of mass death and destruction intended for use in a manner consistent with the laws of the United States and the State of North Carolina.
    5. Persons who lawfully possess or own a weapon as defined in subsection (c) of this section in compliance with 26 U.S.C. Chapter 53, §§ 5801-5871. Nothing in this subdivision shall limit the discretion of the sheriff in executing the paperwork required by the United States Bureau of Alcohol, Tobacco and Firearms for such person to obtain the weapon.
  3. The term “weapon of mass death and destruction” includes:
    1. Any explosive or incendiary:
      1. Bomb; or
      2. Grenade; or
      3. Rocket having a propellant charge of more than four ounces; or
      4. Missile having an explosive or incendiary charge of more than one-quarter ounce; or
      5. Mine; or
      6. Device similar to any of the devices described above; or
    2. Any type of weapon (other than a shotgun or a shotgun shell of a type particularly suitable for sporting purposes) which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; or
    3. Any firearm capable of fully automatic fire, any shotgun with a barrel or barrels of less than 18 inches in length or an overall length of less than 26 inches, any rifle with a barrel or barrels of less than 16 inches in length or an overall length of less than 26 inches, any muffler or silencer for any firearm, whether or not such firearm is included within this definition. For the purposes of this section, rifle is defined as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder; or
    4. Any combination of parts either designed or intended for use in converting any device into any weapon described above and from which a weapon of mass death and destruction may readily be assembled.

      The term “weapon of mass death and destruction” does not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line-throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684(2), 4685, or 4686 of Title 10 of the United States Code; or any other device which the Secretary of the Treasury finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting purposes, in accordance with Chapter 44 of Title 18 of the United States Code.

  4. Any person who violates any provision of this section is guilty of a Class F felony.

History. 1969, c. 869, s. 1; 1975, c. 718, ss. 6, 7; 1977, c. 810; 1983, c. 413, ss. 1, 2; 1993, c. 539, s. 1228; 1994, Ex. Sess., c. 24, s. 14(c); 2001-470, s. 3; 2011-268, s. 8.

Cross References.

As to nuclear, biological, or chemical weapons of mass destruction, see G.S. 14-288.21 et seq.

Editor’s Note.

Session Laws 2011-268, which, in s. 8, amended subsection (b) by adding “any of the following” in the introductory language and adding subdivision (b)(5), provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2011-268, s. 8, effective December 1, 2011, added “any of the following” in the introductory language of subsection (b); and added subdivision (b)(5). For applicability, see Editor’s Note.

Legal Periodicals.

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

CASE NOTES

Constitutionality. —

This section does not completely ban a class of weapons protected by the Constitution; the statute permits possession of shotguns, with the exception of those which have been tampered with so as to shorten the barrel and State can regulate the length of a particular firearm as long as there is a reasonable purpose for doing so. State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 1989 N.C. App. LEXIS 674 (1989).

Construction with Other Provisions. —

Reading this section in pari materia with G.S. 14-415.1 , it is clear that the footnote to this section which reads “nothing in this subsection would prohibit the right of any person to have possession of a firearm within his own home or . . . place of business” does not apply to weapons of mass death and destruction; North Carolina did not intend to restore to its ex-felons the right to possess such weapons within their own homes, in contravention of the general federal prohibition against felons possessing firearms. United States v. Walker, 39 F.3d 489, 1994 U.S. App. LEXIS 30369 (4th Cir. 1994).

The focus of this section is weapons of mass death and destruction which is considerably different from the concept of any gun used in G.S. 14-269.2(b) . In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

Operability is not an element of the crime to be proven by the State; it is, rather, an affirmative defense. State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 1989 N.C. App. LEXIS 674 (1989).

Devices listed in the statute lose their status as weapons of mass death and destruction once they are found to be totally inoperable and incapable of being readily made operable. State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 1989 N.C. App. LEXIS 674 (1989).

Inoperability is defense only to the extent that the defendant can prove the pieces seized were not designed or intended for use in converting any device into a weapon of mass death and destruction. State v. Jackson, 353 N.C. 495 , 546 S.E.2d 570, 2001 N.C. LEXIS 529 (2001).

Potential Inoperability Did Not Shift Burden of Proof. —

Where defendant offered no evidence that the weapon was inoperable, but merely raised the possibility that the weapon was incapable of being fired and no witness opined that the weapon was inoperable, defendant’s simply raising the issue of potential inoperability was not sufficient to shift the burden of proof to the State. State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 1989 N.C. App. LEXIS 674 (1989).

Fact That Weapon Had Been Disassembled Did Not Remove It from Scope of Section. —

Subsection (c) merely defines what weapons qualify as weapons of mass death and destruction; included in this list are sawed-off shotguns and, under subdivision (c)(4), any combination of parts that may be readily assembled into weapons listed in the other subsections; the fact that the weapon had been disassembled by the time it was found by the officers did not lessen its quality as a weapon of mass death and destruction. State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 1989 N.C. App. LEXIS 674 (1989).

Sawed-Off Shotgun. —

With limited and specific exceptions, no one in North Carolina, ex-felon or otherwise, may possess, store or acquire a sawed-off shotgun for any reason or under any circumstance. United States v. Walker, 39 F.3d 489, 1994 U.S. App. LEXIS 30369 (4th Cir. 1994).

Admission of hearsay evidence that a sawed-off shotgun was not an antique, and thereby not exempt, under 18 U.S.C.S. § 921(16)(A), from the prohibition in G.S. 14-288.8 against possession of a weapon of mass destruction, was not plain error because there was no evidence that the shotgun was an antique; thus, the jury would not have been able to so find if the hearsay evidence had not been admitted and defendant would likely still have been convicted of violating the statute. State v. Blackwell, 163 N.C. App. 12, 592 S.E.2d 701, 2004 N.C. App. LEXIS 249 , cert. denied, 358 N.C. 378 , 597 S.E.2d 768, 2004 N.C. LEXIS 365 (2004).

Assertion that a sawed-off shotgun was an antique, and thereby exempt from the prohibition in G.S. 14-288.8 against possessing a weapon of mass destruction, under 18 U.S.C.S. § 921(16)(A), was an affirmative defense on which defendant bore the initial burden of proof to demonstrate the weapon’s antique status, and defendant’s evidence that the gun had belonged to his father, who received it from an 83-year-old woman whose father had owned it was not evidence that the weapon met the technical definition of an antique in 18 U.S.C.S. § 921(16)(A). State v. Blackwell, 163 N.C. App. 12, 592 S.E.2d 701, 2004 N.C. App. LEXIS 249 , cert. denied, 358 N.C. 378 , 597 S.E.2d 768, 2004 N.C. LEXIS 365 (2004).

Defendant was properly sentenced as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1(a) because a prior conviction under G.S. 14-288.8 for possession of a sawed-off shotgun was a “crime of violence”; U.S. Sentencing Guidelines Manual § 4B1.2, cmt., application n. 1, defines a “crime of violence” to include unlawful possession of a sawed-off shotgun. United States v. Hood, 628 F.3d 669, 2010 U.S. App. LEXIS 26297 (4th Cir. 2010), cert. denied, 563 U.S. 954, 131 S. Ct. 2138, 179 L. Ed. 2d 924, 2011 U.S. LEXIS 2859 (2011).

Flash Bang Grenade Was Weapon of Mass Destruction. —

“Flash bang” grenade was a weapon of mass death and destruction because any explosive or incendiary grenade was a weapon of mass death and destruction, the grenades which defendant possessed bore warning labels, and a state trooper testified that the trooper was familiar with flash bang grenades, that they were used in combat, and that such grenades, when thrown, would explode and make a bright flash and a very loud bang, for the purpose of rendering the people in a room stunned, disabled, and disoriented. State v. Carey, 373 N.C. 445 , 838 S.E.2d 367, 2020 N.C. LEXIS 85 (2020).

Jury Instruction on Malice. —

Where the trial court’s jury instruction referred to both express and implied malice and was in accordance with the pattern jury instructions for arson and homicide, the trial court’s instruction was proper. State v. Sexton, 357 N.C. 235 , 581 S.E.2d 57, 2003 N.C. LEXIS 608 (2003).

Jury Instruction on Intent. —

Jury instruction on intent was not required for conviction of two counts of possession of a weapon of mass death and destruction under G.S. 14-288.8 because defendant’s knowledge that the shotguns had barrel lengths of less than 18 inches was not an element of the offense since possession alone constituted a violation of this statute. State v. Watterson, 198 N.C. App. 500, 679 S.E.2d 897, 2009 N.C. App. LEXIS 1354 (2009).

Failure to Instruct Jury. —

Trial court erred in not instructing the jury on all the evidence presented and admitted in relation to defendant’s conviction for possession of a weapon of mass death and destruction because defendant was entitled proper and complete jury instructions of all properly admitted evidence, the error was prejudicial to defendant, and the jury, if properly instructed, would have had to consider and find all attendant circumstances relevant to the charge to exonerate or to properly convict defendant. State v. Carey, 273 N.C. App. 593, 849 S.E.2d 111, 2020 N.C. App. LEXIS 679 (2020).

Evidence Sufficient To Support Conviction. —

Trial court properly denied defendant’s motion to dismiss the charge of possession of a weapon of mass death and destruction because the evidence was sufficient to support a reasonable inference that defendant owned, and, accordingly, constructively possessed, a blue sawed-off shotgun; at trial, defendant’s cousin testified that defendant owned a blue shotgun and that he was with defendant when he purchased it, and defendant’s other cousin similarly testified that defendant owned a blue shotgun. State v. Billinger, 213 N.C. App. 249, 714 S.E.2d 201, 2011 N.C. App. LEXIS 1402 (2011).

OPINIONS OF ATTORNEY GENERAL

Effect on Permit Requirements. — The provisions of this section relating to weapons of mass death and destruction do not abrogate or abolish permit requirements of G.S. 14-409 and 14-409.9. See opinion of Attorney General to Mr. T.A. Radewicz, Sheriff, New Hanover County, 50 N.C. Op. Att'y Gen. 109 (1981).

§ 14-288.9. Assault on emergency personnel; punishments.

  1. An assault upon emergency personnel is an assault upon any person coming within the definition of “emergency personnel” which is committed in an area:
    1. In which a declared state of emergency exists; or
    2. Within the immediate vicinity of which a riot is occurring or is imminent.
  2. The term “emergency personnel” includes law-enforcement officers, firemen, ambulance attendants, utility workers, doctors, nurses, and other persons lawfully engaged in providing essential services during the emergency.
  3. Any person who commits an assault causing physical injury upon emergency personnel is guilty of a Class I felony. Any person who commits an assault upon emergency personnel with or through the use of any dangerous weapon or substance shall be punished as a Class F felon.

History. 1969, c. 869, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 193, 1229; 1994, Ex. Sess., c. 24, s. 14(c); 2011-356, s. 3.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

Session Laws 2011-356, s. 4, provides: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2011-356, s. 3, effective December 1, 2011, and applicable to offenses committed on or after that date, in the first sentence of subsection (c), inserted “causing physical injury” and substituted “Class I felony” for “Class 1 misdemeanor.”

§ 14-288.10. Frisk of persons during violent disorders; frisk of curfew violators.

  1. Any law-enforcement officer may frisk any person in order to discover any dangerous weapon or substance when he has reasonable grounds to believe that the person is or may become unlawfully involved in an existing riot and when the person is close enough to such riot that he could become immediately involved in the riot. The officer may also at that time inspect for the same purpose the contents of any personal belongings that the person has in his possession.
  2. Any law-enforcement officer may frisk any person he finds violating the provisions of a curfew proclaimed under the authority of G.S. 14-288.12 , 14-288.13, 14-288.14, or 14-288.15 or any other applicable statutes or provisions of the common law in order to discover whether the person possesses any dangerous weapon or substance. The officer may also at that time inspect for the same purpose the contents of any personal belongings that the person has in his possession.

History. 1969, c. 869, s. 1.

§ 14-288.11. Warrants to inspect vehicles in riot areas or approaching municipalities during emergencies.

  1. Notwithstanding the provisions of Article 4 of Chapter 15, any law-enforcement officer may, under the conditions specified in this section, obtain a warrant authorizing inspection of vehicles under the conditions and for the purpose specified in subsection (b).
  2. The inspection shall be for the purpose of discovering any dangerous weapon or substance likely to be used by one who is or may become unlawfully involved in a riot. The warrant may be sought to inspect:
    1. All vehicles entering or approaching a municipality in which an emergency exists; or
    2. All vehicles which might reasonably be regarded as being within or approaching the immediate vicinity of an existing riot.
  3. The warrant may be issued by any judge or justice of the General Court of Justice.
  4. The issuing official shall issue the warrant only when he has determined that the one seeking the warrant has been specifically authorized to do so by the head of the law-enforcement agency of which the affiant is a member, and:
    1. If the warrant is being sought for the inspection of vehicles entering or approaching a municipality, that an emergency exists within the municipality; or
    2. If the warrant being sought is for the inspection of vehicles within or approaching the immediate vicinity of a riot, that a riot is occurring within that area.

      Facts indicating the basis of these determinations must be stated in an affidavit and signed by the affiant under oath or affirmation.

  5. The warrant must be signed by the issuing official and must bear the hour and date of its issuance.
  6. The warrant must indicate whether it is for the inspection of vehicles entering or approaching a municipality or whether it is for the inspection of vehicles within or approaching the immediate vicinity of a riot. In either case, it must also specify with reasonable precision the area within which it may be exercised.
  7. The warrant shall become invalid 24 hours following its issuance and must bear a notation to that effect.
  8. Warrants authorized under this section shall not be regarded as search warrants for the purposes of application of Article 4 of Chapter 15.
  9. Nothing in this section is intended to prevent warrantless frisks, searches, and inspections to the extent that they may be constitutional and consistent with common law and governing statutes.

History. 1969, c. 869, s. 1; 2012-12, s. 2(d).

Editor’s Note.

Article 4 of Chapter 15, referred to in subsections (a) and (h) of this section, has been repealed. See now G.S. 15A-241 et seq.

Effect of Amendments.

Session Laws 2012-12, s. 2(d), effective October 1, 2012, in subdivisions (b)(1) and (d)(1), substituted “an emergency” for “a state of emergency.”

CASE NOTES

When Search of Automobile Without Warrant Is Reasonable. —

Because of its mobility, a search of an automobile without a warrant is reasonable if it is based on probable cause. United States v. Chalk, 441 F.2d 1277, 1971 U.S. App. LEXIS 10341 (4th Cir.), cert. denied, 404 U.S. 943, 92 S. Ct. 294, 30 L. Ed. 2d 258, 1971 U.S. LEXIS 587 (1971).

Search May Be Conducted After Automobile Is Transported to Police Station. —

If there is probable cause to search the automobile at the place where it was stopped, it matters not that the search is conducted sometime later after the automobile has been transported to the police station. United States v. Chalk, 441 F.2d 1277, 1971 U.S. App. LEXIS 10341 (4th Cir.), cert. denied, 404 U.S. 943, 92 S. Ct. 294, 30 L. Ed. 2d 258, 1971 U.S. LEXIS 587 (1971).

§§ 14-288.12 through 14-288.17. [Repealed]

Repealed by Session Laws 2012-12, s. 2(e), effective October 1, 2012.

History. S. 14-288.12; 1969, c. 869, s. 1; 1981, c. 412, s. 4(4); c. 747, s. 66; 1989, c. 770, s. 2; 1993, c. 539, s. 194; 1994, Ex. Sess., c. 24, s. 14(c); 2009-146, s. 1; repealed by 2012-12, s. 2(e), effective October 1, 2012. s. 14-288.13; 1969, c. 869, s. 1; 1993, c. 539, s. 195; 1994, Ex. Sess., c. 24, s. 14(c); repealed by 2012-12, s. 2(e), effective October 1, 2012. s. 14-288.14; 1969, c. 869, s. 1; 1993, c. 539, s. 196; 1994, Ex. Sess., c. 14, s. 7; c. 24, s. 14(c); repealed by 2012-12, s. 2(e), effective October 1, 2012. s. 14-288.15; 1969, c. 869, s. 1; 1993, c. 539, s. 197; 1994, Ex. Sess., c. 24, s. 14(c); repealed by 2012-12, s. 2(e), effective October 1, 2012. s. 14-288.16; 1969, c. 869, s. 1; repealed by 2012-12, s. 2(e), effective October 1, 2012. s. 14-288.17; 1969, c. 869, s. 1; repealed by 2012-12, s. 2(e), effective October 1, 2012.

Cross References.

As to powers of counties to enact ordinances to deal with states of emergency, see G.S. 14-288.13.

As to power of chairman of board of county commissioners to extend emergency restrictions imposed in municipality, see G.S. 14-288.14.

Editor’s Note.

Former G.S. 14-288.12 pertained to the powers of municipalities to enact ordinances to deal with states of emergency. Former G.S. 14-288.13 pertained to the powers of counties to enact ordinances to deal with states of emergency. Former G.S. 14-288.14 pertained to the power of chairman of board of county commissioners to extend emergency restrictions imposed in municipality. Former G.S. 14-288.15 pertained to the authority of Governor to exercise control in emergencies. Former G.S. 14-288.16 pertained to the effective time, publication, amendment, and recision of proclamations. Former G.S. 14-288.17 pertained to the municipal and county ordinances may be made immediately effective if state of emergency exists or is imminent.

§ 14-288.18. Injunction to cope with emergencies at public and private educational institutions.

  1. The chief administrative officer, or his authorized representative, of any public or private educational institution may apply to any superior court judge for injunctive relief if an emergency exists within his institution. For the purposes of this section, the superintendent of any city or county administrative school unit shall be deemed the chief administrative officer of any public elementary or secondary school within his unit.
  2. Upon a finding by a superior court judge, to whom application has been made under the provisions of this section, that an emergency exists within a public or private educational institution by reason of riot, disorderly conduct by three or more persons, or the imminent threat of riot, the judge may issue an injunction containing provisions appropriate to cope with the emergency then occurring or threatening. The injunction may be addressed to named persons or named or described groups of persons as to whom there is satisfactory cause for believing that they are contributing to the emergency, and ordering such persons or groups of persons to take or refrain or desist from taking such various actions as the judge finds it appropriate to include in his order.

History. 1969, c. 869, s. 1; 2012-12, s. 2(f).

Effect of Amendments.

Session Laws 2012-12, s. 2(f), effective October 1, 2012, substituted “an emergency exists” for “a state of emergency exists or is imminent” in subsections (a) and (b); and deleted “existing or imminent state of” following “contributing to the” in the last sentence of subsection (b).

CASE NOTES

This section envisions an action in the nature of a civil action for a permanent injunction, in which the parties to be enjoined are named or described with at least a modicum of particularity. State ex rel. Moore v. Doe, 19 N.C. App. 131, 198 S.E.2d 236, 1973 N.C. App. LEXIS 1596 , cert. denied, 284 N.C. 121 , 199 S.E.2d 663, 1973 N.C. LEXIS 790 (1973).

§ 14-288.19. [Repealed]

Repealed by Session Laws 2012-12, s. 2(e), effective October 1, 2012.

History. 1969, c. 1129; 1993, c. 539, s. 198; 1994, Ex. Sess., c. 24, s. 14(c); 2009-281, s. 1; repealed by 2012-12, s. 2(e), effective October 1, 2012.

Editor’s Note.

Former G.S. 14-288.19 pertained to the Governor’s power to order evacuation of public building.

Effect of Amendments.

Session Laws 2009-281, s. 1, effective July 10, 2009, substituted “National Guard” for “national guard” in the last sentence of subsection (a).

§ 14-288.20. Certain weapons at civil disorders.

  1. The definitions in G.S. 14-288.1 do not apply to this section. As used in this section:
    1. The term “civil disorder” means any public disturbance involving acts or violence by assemblages of three or more persons, which causes an immediate danger of damage or injury to the property or person of any other individual or results in damage or injury to the property or person of any other individual.
    2. The term “firearm” means any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive; or the frame or receiver of such a weapon.
    3. The term “explosive or incendiary device” means (i) dynamite and all other forms of high explosives, (ii) any explosive bomb, grenade, missile, or similar device, and (iii) any incendiary bomb or grenade, fire bomb, or similar device, including any device which (i) consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting that flammable liquid or compound, and (ii) can be carried or thrown by one individual acting alone.
    4. The term “law-enforcement officer” means any officer of the United States, any state, any political subdivision of a state, or the District of Columbia charged with the execution of the laws thereof; civil officers of the United States; officers and soldiers of the organized militia and state guard of any state or territory of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; and members of the Armed Forces of the United States.
  2. A person is guilty of a Class H felony, if he:
    1. Teaches or demonstrates to any other person the use, application, or making of any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that the same will be unlawfully employed for use in, or in furtherance of, a civil disorder; or
    2. Assembles with one or more persons for the purpose of training with, practicing with, or being instructed in the use of any firearm, explosive or incendiary device, or technique capable of causing injury or death to persons, intending to employ unlawfully the training, practicing, instruction, or technique for use in, or in furtherance of, a civil disorder.
  3. Nothing contained in this section shall make unlawful any act of any law-enforcement officer which is performed in the lawful performance of his official duties.

History. 1981, c. 880, ss. 1, 2; 1993, c. 539, s. 1230; 1994, Ex. Sess., c. 24, s. 14(c); 2011-183, s. 11.

Effect of Amendments.

Session Laws 2011-183, s. 11, effective June 20, 2011, substituted “Armed Forces” for “armed forces” in subdivision (a)(4).

CASE NOTES

Conduct Carried Out by Defendant’s Agents. —

Although defendant never had direct involvement in any activities that violated this section, it was sufficient, in order to find defendant in contempt of a court order prohibiting violation of this section, that the violative conduct was carried out by defendant’s agents under his direct orders. Person v. Miller, 854 F.2d 656, 1988 U.S. App. LEXIS 11237 (4th Cir. 1988), cert. denied, 489 U.S. 1011, 109 S. Ct. 1119, 103 L. Ed. 2d 182, 1989 U.S. LEXIS 840 (1989).

Acts Need Not Threaten “Immediate” Danger. —

In an action for contempt of a court order prohibiting violation of this section, prosecution need not prove that the acts engaged in threatened “immediate” danger but, rather, that the prohibited activities were engaged in with the intent of furthering civil disorder at some point in time. Person v. Miller, 854 F.2d 656, 1988 U.S. App. LEXIS 11237 (4th Cir. 1988), cert. denied, 489 U.S. 1011, 109 S. Ct. 1119, 103 L. Ed. 2d 182, 1989 U.S. LEXIS 840 (1989).

§ 14-288.20A. Violation of emergency prohibitions and restrictions.

Any person who does any of the following is guilty of a Class 2 misdemeanor:

  1. Violates any provision of an ordinance or a declaration enacted or declared pursuant to G.S. 166A-19.31 .
  2. Violates any provision of a declaration or executive order issued pursuant to G.S. 166A-19.30 .
  3. Willfully refuses to leave the building as directed in a Governor’s order issued pursuant to G.S. 166A-19.78 .

History. 2012-12, s. 1(d).

Article 36B. Nuclear, Biological, or Chemical Weapons of Mass Destruction.

§ 14-288.21. Unlawful manufacture, assembly, possession, storage, transportation, sale, purchase, delivery, or acquisition of a nuclear, biological, or chemical weapon of mass destruction; exceptions; punishment.

  1. Except as otherwise provided in this section, it is unlawful for any person to knowingly manufacture, assemble, possess, store, transport, sell, offer to sell, purchase, offer to purchase, deliver or give to another, or acquire a nuclear, biological, or chemical weapon of mass destruction.
  2. This section does not apply to:
    1. Persons listed in G.S. 14-269(b) with respect to any activities lawfully engaged in while carrying out their duties.
    2. Persons under contract with, or working under the direction of, the United States, the State of North Carolina, or any agency of either government, with respect to any activities lawfully engaged in under their contracts or pursuant to lawful direction.
    3. Persons lawfully engaged in the development, production, manufacture, assembly, possession, transport, sale, purchase, delivery or acquisition of any biological agent, disease organism, toxic or poisonous chemical, radioactive substance or their immediate precursors, for preventive, protective, or other peaceful purposes.
    4. Persons lawfully engaged in accepted agricultural, horticultural, or forestry practices; aquatic weed control; or structural pest and rodent control, in a manner approved by the federal, State, county, or local agency charged with authority over such activities.
  3. The term “nuclear, biological, or chemical weapon of mass destruction”, as used in this Article, means any of the following:
    1. Any weapon, device, or method that is designed or has the capability to cause death or serious injury through the release, dissemination, or impact of:
      1. Radiation or radioactivity;
      2. A disease organism; or
      3. Toxic or poisonous chemicals or their immediate precursors.
    2. Any substance that is designed or has the capability to cause death or serious injury and:
      1. Contains radiation or radioactivity;
      2. Is or contains toxic or poisonous chemicals or their immediate precursors; or
      3. Is or contains one or more of the following:
        1. Any select agent that is a microorganism, virus, bacterium, fungus, rickettsia, or toxin listed in Appendix A of Part 72 of Title 42 of the Code of Federal Regulations.
        2. Any genetically modified microorganisms or genetic elements from an organism on Appendix A of Part 72 of Title 42 of the Code of Federal Regulations, shown to produce or encode for a factor associated with a disease.
        3. Any genetically modified microorganisms or genetic elements that contain nucleic acid sequences coding for any of the toxins listed on Appendix A of Part 72 of Title 42 of the Code of Federal Regulations, or their toxic submits.The term “nuclear, biological, or chemical weapon of mass destruction” also includes any combination of parts or substances either designed or intended for use in converting any device or substance into any nuclear, biological, or chemical weapon of mass destruction or from which a nuclear, biological, or chemical weapon of mass destruction may be readily assembled or created.
  4. Any person who violates any provision of this section is guilty of a Class B1 felony.

History. 2001-470, s. 1.

Cross References.

For provisions relating to terrorist incident using nuclear, biological, or chemical agents, see G.S. 130A-475 et seq.

§ 14-288.22. Unlawful use of a nuclear, biological, or chemical weapon of mass destruction; punishment.

  1. Any person who unlawfully and willfully injures another by the use of a nuclear, biological, or chemical weapon of mass destruction is guilty of a Class A felony and shall be sentenced to life imprisonment without parole.
  2. Any person who attempts, solicits another, or conspires to injure another by the use of a nuclear, biological, or chemical weapon of mass destruction is guilty of a Class B1 felony.
  3. Any person who for the purpose of violating any provision of this Article, deposits for delivery or attempts to have delivered, a nuclear, biological, or chemical weapon of mass destruction by the United States Postal Service or other public or private business engaged in the delivery of mail, packages, or parcels is guilty of a Class B1 felony.

History. 2001-470, s. 1.

§ 14-288.23. Making a false report concerning a nuclear, biological, or chemical weapon of mass destruction; punishment; restitution.

  1. Any person who, by any means of communication to any person or group of persons, makes a report, knowing or having reason to know the report is false, that causes any person to reasonably believe that there is located at any place or structure whatsoever any nuclear, biological, or chemical weapon of mass destruction is guilty of a Class D felony.
  2. The court may order a person convicted under this section to pay restitution, including costs and consequential damages resulting from disruption of the normal activity that would have otherwise occurred but for the false report, pursuant to Article 81C of Chapter 15A of the General Statutes.
  3. For purposes of this section, the term “report” shall include making accessible to another person by computer.

History. 2001-470, s. 1.

§ 14-288.24. Perpetrating hoax by use of false nuclear, biological, or chemical weapon of mass destruction; punishment; restitution.

  1. Any person who, with intent to perpetrate a hoax, conceals, places, or displays any device, object, machine, instrument, or artifact, so as to cause any person reasonably to believe the same to be a nuclear, biological, or chemical weapon of mass destruction is guilty of a Class D felony.
  2. The court may order a person convicted under this section to pay restitution, including costs and consequential damages resulting from disruption of the normal activity that would have otherwise occurred but for the hoax, pursuant to Article 81C of Chapter 15A of the General Statutes.

History. 2001-470, s. 1.

Subchapter XI. General Police Regulations.

Article 37. Lotteries, Gaming, Bingo and Raffles.

Part 1. Lotteries and Gaming.

§ 14-289. Advertising lotteries.

Except as provided in Chapter 18C of the General Statutes or in connection with a lawful raffle as provided in Part 2 of this Article, if anyone by writing or printing or by circular or letter or in any other way, advertises or publishes an account of a lottery, whether within or without this State, stating how, when or where the same is to be or has been drawn, or what are the prizes therein or any of them, or the price of a ticket or any share or interest therein, or where or how it may be obtained, he shall be guilty of a Class 2 misdemeanor. News medium as defined in G.S. 8-53.11 shall be exempt from this section provided the publishing is in connection with a lawful activity of the news medium.

History. 1887, c. 211; Rev., s. 3725; C.S., s. 4427; 1979, c. 893, s. 3; 1983, c. 896, s. 1; 1993, c. 539, s. 199; 1994, Ex. Sess., c. 24, s. 14(c); 2005-276, s. 31.1(v2); 2005-344, s. 3(a).

Local Modification.

(As to Article 37) Carteret: 1971, c. 221; Cleveland: 1971, c. 627; Jones: 1971, c. 627; 1977, c. 157; Lincoln: 1971, c. 627; 1977, c. 66; Pamlico: 1971, c. 627; 1977, c. 157; Polk: 1971, c. 627; Rutherford: 1971, c. 627; Union: 1971, c. 627; 1977, c. 157.

Editor’s Note.

Session Laws 1983, c. 896, s. 3, effective Oct. 1, 1983, designated existing Article 37 of Chapter 14 as Part 1 of such Article and added a new Part 2.

Session Laws 1983, c. 896, which amended this section and G.S. 14-290 , 14-291, 14-291.1, and 14-292, in s. 5.1, provided: “Sec. 5.1. Should the Supreme Court of North Carolina or a federal court having jurisdiction over North Carolina find and determine in any manner, whether on the merits or by denial of petition for discretionary review, that the General Assembly may not constitutionally allow ‘exempt organizations’ as defined herein to conduct bingo or raffles, while denying that privilege to all other persons, then this act and G.S. 14-292.1 are repealed in their entirety, and no person may conduct bingo or raffles under any circumstances not permitted by the gambling laws of North Carolina.”

Effect of Amendments.

Session Laws 2005-276, s. 31.1(v2), effective July 1, 2005, added the last sentence.

Session Laws 2005-344, s. 3(a), effective August 31, 2005, inserted “as provided in Chapter 18C of the General Statutes or” preceding “in connection with a lawful” and made a minor stylistic change.

Legal Periodicals.

See the discussion in 5 N.C.L. Rev. 31 (1927).

For article, “End of the Chase: Using North Carolina as a Guide for Ending Other States’ Video Sweepstakes Legislative Merry-Go-Round in the Wake of Hest Technologies v. North Carolina,” see 36 N.C. Cent. L. Rev. 41 (2013).

For article, “Sports Betting has an Equal Sovereignty Problem,” see 67 Duke L.J. Online 1 (2017).

CASE NOTES

Constitutionality. —

With the exception of the provision relating to homeowner and property owner associations (now found in G.S. 14-309.6(1)), this section and G.S. 14-290 and former G.S. 14-292.1 (now replaced by G.S. 14-309.5 et seq.) do not violate the due process or equal protection provisions of either the North Carolina Constitution or the United States Constitution. State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883, 1983 N.C. App. LEXIS 3481 (1983), aff'd, 311 N.C. 397 , 316 S.E.2d 870, 1984 N.C. LEXIS 1745 (1984).

Illegal Lottery Not Shown. —

Trial court properly found that sale of a corporation’s pre-paid phone cards with game pieces was not an illegal lottery where the inclusion of game pieces was merely a marketing system, the phone card was sufficiently compatible with the price being charged and had sufficient value and utility to support the conclusion that it, and not the associated game of chance, was the object being purchased, and consumers could receive free game pieces without purchasing the phone card via written request. Am. Treasures, Inc. v. State, 173 N.C. App. 170, 617 S.E.2d 346, 2005 N.C. App. LEXIS 1928 (2005).

§ 14-290. Dealing in lotteries.

Except as provided in Chapter 18C of the General Statutes or in connection with a lawful raffle as provided in Part 2 of this Article, if any person shall open, set on foot, carry on, promote, make or draw, publicly or privately, a lottery, by whatever name, style or title the same may be denominated or known; or if any person shall, by such way and means, expose or set to sale any house, real estate, goods, chattels, cash, written evidence of debt, certificates of claims or any other thing of value whatsoever, every person so offending shall be guilty of a Class 2 misdemeanor which may include a fine not to exceed two thousand dollars ($2,000). Any person who engages in disposing of any species of property whatsoever, including money and evidences of debt, or in any manner distributes gifts or prizes upon tickets, bottle crowns, bottle caps, seals on containers, other devices or certificates sold for that purpose, shall be held liable to prosecution under this section. Any person who shall have in his possession any tickets, certificates or orders used in the operation of any lottery shall be held liable under this section, and the mere possession of such tickets shall be prima facie evidence of the violation of this section. This section shall not apply to the possession of a lottery ticket or share for a lottery game being lawfully conducted in another state.

History. 1834, c. 19, s. 1; R.C., c. 34, s. 69; 1874-5, c. 96; Code, s. 1047; Rev., s. 3726; C.S., s. 4428; 1933, c. 434; 1937, c. 157; 1979, c. 893, s. 4; 1983, c. 896, s. 1; 1993, c. 539, s. 200; 1994, Ex. Sess., c. 24, s. 14(c); 2005-344, s. 3(b).

Cross References.

See Editor’s Note to G.S. 14-289 .

Effect of Amendments.

Session Laws 2005-344, s. 3.(b), effective August 31, 2005, inserted “as provided in Chapter 18C of the General Statutes or” near the beginning of the section, and added the last sentence.

CASE NOTES

Constitutionality. —

With the exception of the provision relating to homeowner and property owner associations (now found in G.S. 14-309.6(1)), this section and G.S. 14-289 and former G.S. 14-292.1 (now replaced by G.S. 14-309.5 et seq.) do not violate the due process or equal protection provisions of either the North Carolina Constitution or the United States Constitution. State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883, 1983 N.C. App. LEXIS 3481 (1983), aff'd, 311 N.C. 397 , 316 S.E.2d 870, 1984 N.C. LEXIS 1745 (1984).

The 1933 amendment to this section, which made the possession of tickets, etc., used in the operating of a lottery prima facie evidence of violation of the section, was constitutional and valid, the presumption being a rational one. State v. Fowler, 205 N.C. 608 , 172 S.E. 191, 1934 N.C. LEXIS 28 (1934).

Statutes, such as this section, regulating such schemes violate neither the State nor federal Constitution. They are remedial and should be liberally construed. And the fact that the device is an advertising scheme of an otherwise legitimately run business concern does not prevent the section from applying. Brevard Mfg. Co. v. W. Benjamin & Sons, 172 N.C. 53 , 89 S.E. 797, 1916 N.C. LEXIS 227 (1916). See State v. Lumsden, 89 N.C. 572 , 1883 N.C. LEXIS 295 (1883).

Lottery Defined. —

A lottery may be defined as any scheme for the distribution of prizes, by lot or chance, by which one, on paying money or giving any other thing of value to another, obtains a token which entitles him to receive a larger or smaller value, or nothing, as some formula of chance may determine. State v. Lipkin, 169 N.C. 265 , 84 S.E. 340, 1915 N.C. LEXIS 206 (1915); State v. Simmons, 59 N.C. App. 287, 296 S.E.2d 805, 1982 N.C. App. LEXIS 3120 (1982), cert. denied, 307 N.C. 701 , 301 S.E.2d 395, 1983 N.C. LEXIS 1251 (1983).

This Section and § 14-291.1 Distinguished. —

This section refers to persons who promote, make or draw, publicly or privately, a lottery, by whatever name, while G.S. 14-291.1 , deals only with those persons who shall “sell, barter or cause to be sold or bartered, any ticket, token, certificate or order,” etc. Thus it is apparent that the two statutes not only act upon different persons and serve purposes which are not the same, but also they deal with different conditions. One inveighs against trafficking in lottery tickets and the other is designed to affect those persons engaged in promoting a particular kind of lottery. State v. Robinson, 224 N.C. 412 , 30 S.E.2d 320, 1944 N.C. LEXIS 374 (1944).

Section Not Applicable To Purchaser. —

This section does not embrace persons who buy lottery tickets. State v. Bryant, 74 N.C. 207 , 1876 N.C. LEXIS 51 (1876).

Lottery Privilege Not a Contract. —

A right, conferred in the charter of a corporation, to dispose of property by means of lottery tickets, is not a contract between the corporation and the State, but a mere privilege or license, and is revocable at will by the legislative power. State v. Morris, 77 N.C. 512 , 1877 N.C. LEXIS 139 (1877).

Note for Lottery Contract Unenforceable. —

Notes given in pursuance of a contract prohibited by this section are for an illegal consideration, and collection thereof is not enforceable in the courts of the State. Brevard Mfg. Co. v. W. Benjamin & Sons, 172 N.C. 53 , 89 S.E. 797, 1916 N.C. LEXIS 227 (1916).

Surety to Lottery Contract. —

A bond guaranteeing the performance of a “trade expansion contract” which is contrary to this section, is as unenforceable against the surety thereon as the contract upon which it is founded. Basnight v. American Mfg. Co., 174 N.C. 206 , 93 S.E. 734, 1917 N.C. LEXIS 57 (1917).

Legal Effect of Lottery Ticket. —

A lottery ticket entitles the holder to demand and receive one of the prizes awarded. It is a thing which is the holder’s means of making good his rights. The essence of it is that it is in the hands of the other party to the contract with the lottery as a document of title. State v. Simmons, 59 N.C. App. 287, 296 S.E.2d 805, 1982 N.C. App. LEXIS 3120 (1982), cert. denied, 307 N.C. 701 , 301 S.E.2d 395, 1983 N.C. LEXIS 1251 (1983).

First clause of the last sentence creates a separate offense that is applicable to those participating in a lottery as well as to those conducting the lottery. This offense comprises the possession of tickets, certificates or orders that are used in the operation of a lottery. State v. Simmons, 59 N.C. App. 287, 296 S.E.2d 805, 1982 N.C. App. LEXIS 3120 (1982), cert. denied, 307 N.C. 701 , 301 S.E.2d 395, 1983 N.C. LEXIS 1251 (1983).

Actual Physical Possession of Tickets Unnecessary. —

The possession of lottery tickets sufficient to raise prima facie evidence of the violation of this section need not be actual physical possession, and the tickets need not be found on defendant’s person, it being sufficient if they are found in his place of business under his control. State v. Jones, 213 N.C. 640 , 197 S.E. 152, 1938 N.C. LEXIS 162 (1938).

Admissibility of Evidence. —

In establishing the promotion of the lottery by circumstantial evidence it was permissible for the State to show the association of the defendants together with their financial relation and transactions. The declaration of one defendant as to the other’s participation in the enterprise and as to their protection if they were caught was also competent. State v. Ingram, 204 N.C. 557 , 168 S.E. 837, 1933 N.C. LEXIS 193 (1933).

In a prosecution for possession of lottery tickets, testimony that on another occasion a short time previously like tickets had been found in defendant’s home was held competent as tending to show intent, guilty knowledge, system, purposeful possession of the tickets charged, and as supporting the State’s view that defendant was engaged in operating a lottery. State v. Bryant, 231 N.C. 106 , 55 S.E.2d 922, 1949 N.C. LEXIS 656 (1949).

Evidence Held Sufficient. —

Evidence that numerous lottery tickets and lottery ticket books were found in the store operated by defendant was sufficient to be submitted to the jury in a prosecution under this section, and defendant’s contention that there was no evidence that he was in charge of the store was untenable when the record disclosed that several witnesses referred to the locus in quo as defendant’s place of business. State v. Jones, 213 N.C. 640 , 197 S.E. 152, 1938 N.C. LEXIS 162 (1938).

Evidence that officers apprehended defendant with lottery tickets in his possession and that upon seeing the officers he tried to dispose of same was sufficient to be submitted to the jury in prosecution for operating a lottery and for illegal possession of lottery tickets, the evidence being sufficient to make out a prima facie case under the provisions of this section. State v. Powell, 219 N.C. 220 , 13 S.E.2d 232, 1941 N.C. LEXIS 292 (1941).

Evidence held insufficient to show violation of this section. State v. Heglar, 225 N.C. 220 , 34 S.E.2d 76, 1945 N.C. LEXIS 299 (1945).

Circumstantial evidence of defendant’s guilt of conspiracy or participation in lottery held insufficient. State v. Smith, 236 N.C. 748 , 73 S.E.2d 901, 1953 N.C. LEXIS 550 (1953).

§ 14-291. Selling lottery tickets and acting as agent for lotteries.

Except as provided in Chapter 18C of the General Statutes or in connection with a lawful raffle as provided in Part 2 of this Article, if any person shall sell, barter or otherwise dispose of any lottery ticket or order for any number of shares in any lottery, or shall in anywise be concerned in such lottery, by acting as agent in the State for or on behalf of any such lottery, to be drawn or paid either out of or within the State, such person shall be guilty of a Class 2 misdemeanor.

History. 1834, c. 19, s. 2; R.C., c. 34, s. 70; Code, s. 1048; Rev., s. 3727; C.S., s. 4429; 1979, c. 893, s. 5; 1983, c. 896, s. 1; 1993, c. 539, s. 201; 1994, Ex. Sess., c. 24, s. 14(c); 2005-344, s. 3(c).

Cross References.

See Editor’s Note to G.S. 14-289 .

Effect of Amendments.

Session Laws 2005-344, s. 3(c), effective August 31, 2005, inserted “as provided in Chapter 18C of the General Statutes or” in the first sentence.

CASE NOTES

Evidence held insufficient to show violation of this section. State v. Heglar, 225 N.C. 220 , 34 S.E.2d 76, 1945 N.C. LEXIS 299 (1945).

§ 14-291.1. Selling “numbers” tickets; possession prima facie evidence of violation.

Except as provided in Chapter 18C of the General Statutes, in connection with a lawful lottery conducted in another state, or in connection with a lawful raffle as provided in Part 2 of this Article, if any person shall sell, barter or cause to be sold or bartered, any ticket, token, certificate or order for any number or shares in any lottery, commonly known as the numbers or butter and egg lottery, or lotteries of similar character, to be drawn or paid within or without the State, such person shall be guilty of a Class 2 misdemeanor. Any person who shall have in his possession any tickets, tokens, certificates or orders used in the operation of any such lottery shall be guilty under this section, and the possession of such tickets shall be prima facie evidence of the violation of this section.

History. 1943, c. 550; 1979, c. 893, s. 6; 1983, c. 896, s. 1; 1993, c. 539, s. 202; 1994, Ex. Sess., c. 24, s. 14(c); 2005-344, s. 3(d).

Cross References.

See Editor’s Note to G.S. 14-289 .

Effect of Amendments.

Session Laws 2005-344, s. 3(d), effective August 31, 2005, inserted “as provided in Chapter 18C of the General Statutes, in connection with a lawful lottery conducted in another state, or” near the beginning of the section.

CASE NOTES

Lottery Defined. —

A lottery is any scheme for the distribution or prizes, by lot or chance, by which one, on paying money or giving any other thing of value to another, obtains a token which entitles him to receive a larger or smaller value, or nothing, as some formula of chance may determine. State v. Walker, 25 N.C. App. 157, 212 S.E.2d 528, 1975 N.C. App. LEXIS 2205 , cert. denied, 287 N.C. 264 , 214 S.E.2d 436, 1975 N.C. LEXIS 1115 (1975), modified, 27 N.C. App. 295, 219 S.E.2d 76, 1975 N.C. App. LEXIS 1827 (1975).

“Barter” and “sell” are not used as synonyms in this section. Barter is a contract by which parties exchange one commodity for another. It differs from a sale, in that the latter is a transfer of goods for a specified price, payable in money. This being so, an accused may violate this section in four distinct ways. He may sell the illegal articles, or he may barter them, or he may cause another to sell them, or he may cause another to barter them. State v. Albarty, 238 N.C. 130 , 76 S.E.2d 381, 1953 N.C. LEXIS 397 (1953).

Warrant Sufficient. —

Warrant charging the defendant with the sale of tickets and tokens to be used in a numbers “lottery” omits none of the essential elements of the offense. State v. Walker, 25 N.C. App. 157, 212 S.E.2d 528, 1975 N.C. App. LEXIS 2205 , cert. denied, 287 N.C. 264 , 214 S.E.2d 436, 1975 N.C. LEXIS 1115 (1975), modified, 27 N.C. App. 295, 219 S.E.2d 76, 1975 N.C. App. LEXIS 1827 (1975).

Racketeering Activity. —

Gambling in houses of public entertainment in violation of G.S. 14-293 , operating or possessing gambling devices in violation of G.S. 14-302 , and selling or possessing numbers tickets in violation of this section are gambling offenses chargeable as a general misdemeanor punishable by up to two years’ imprisonment, thereby satisfying the federal criteria for racketeering activity under 18 U.S.C. § 1961(1). Therefore, the gambling offenses constituted “racketeering activity” under the alternate definition established in G.S. 75D-3(c)(2). State ex rel. Thornburg v. Lot & Bldgs. at 800 Waughtown St., 107 N.C. App. 559, 421 S.E.2d 374, 1992 N.C. App. LEXIS 757 (1992).

Admissibility of Evidence. —

In a prosecution for possession of lottery tickets, testimony that on another occasion a short time previously, like tickets had been found in defendant’s home, was held competent as tending to show intent, guilty knowledge, system, purposeful possession of the tickets charged, and as supporting the State’s view that defendant was engaged in operating a lottery. State v. Bryant, 231 N.C. 106 , 55 S.E.2d 922, 1949 N.C. LEXIS 656 (1949).

Evidence held insufficient to show violation of this section. State v. Heglar, 225 N.C. 220 , 34 S.E.2d 76, 1945 N.C. LEXIS 299 (1945); State v. Roberson, 29 N.C. App. 152, 223 S.E.2d 551, 1976 N.C. App. LEXIS 2399 (1976).

Circumstantial evidence of defendant’s guilt of conspiracy or participation in lottery held insufficient. State v. Smith, 236 N.C. 748 , 73 S.E.2d 901, 1953 N.C. LEXIS 550 (1953).

Instructions. —

In a prosecution for possession of lottery tickets, the trial court properly instructed the jury that the State had the burden of proving that the defendant knew that the pieces of paper with the numbers on them were lottery tickets, but the court erred in instructing that, “under our law unless the defendant introduces evidence of lack of knowledge, this element may be presumed.” State v. Mayo, 27 N.C. App. 336, 219 S.E.2d 255, 1975 N.C. App. LEXIS 1840 (1975).

In a prosecution for possession of certificates, tickets and orders used in the operation of a numbers lottery, where the court instructed the jury that before it could find defendant guilty of violating the statute it must find from the evidence and beyond a reasonable doubt that (1) the defendant possessed the tickets and orders and (2) that such tickets, orders and paraphernalia were used in a numbers lottery, the charge, when considered contextually as a whole, complied with the requirements of the statute requiring the judge to declare and explain the law arising on the evidence given in the case. State v. Roberson, 29 N.C. App. 152, 223 S.E.2d 551, 1976 N.C. App. LEXIS 2399 (1976).

Punishment. —

A sentence and fine imposed upon conviction of violating this section are in personam; an order of confiscation entered under G.S. 14-299 is in rem and is no part of the personal judgment against the accused. State v. Richardson, 228 N.C. 426 , 45 S.E.2d 536 (1947). See note to G.S. 14-299 .

§ 14-291.2. Pyramid and chain schemes prohibited.

  1. No person shall establish, operate, participate in, or otherwise promote any pyramid distribution plan, program, device or scheme whereby a participant pays a valuable consideration for the opportunity or chance to receive a fee or compensation upon the introduction of other participants into the program, whether or not such opportunity or chance is received in conjunction with the purchase of merchandise. A person who establishes or operates a pyramid distribution plan is guilty of a Class H felony. A person who participates in or otherwise promotes a pyramid distribution plan is deemed to participate in a lottery and is guilty of a Class 2 misdemeanor.
  2. “Pyramid distribution plan” means any program utilizing a pyramid or chain process by which a participant gives a valuable consideration for the opportunity to receive compensation or things of value in return for inducing other persons to become participants in the program; and“Compensation” does not mean payment based on sales of goods or services to persons who are not participants in the scheme, and who are not purchasing in order to participate in the scheme.
  3. Any judge of the superior court shall have jurisdiction, upon petition by the Attorney General of North Carolina or district attorney of the superior court, to enjoin, as an unfair or deceptive trade practice, the continuation of the scheme described in subsection (a); in such proceeding the court may assess civil penalties and attorneys’ fees to the Attorney General or the District Attorney pursuant to G.S. 75-15.2 and 75-16.1; and the court may appoint a receiver to secure and distribute assets obtained by any defendant through participation in any such scheme. The clear proceeds of civil penalties provided for in this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2 .
  4. Any contract hereafter created for which a part of the consideration consisted of the opportunity or chance to participate in a program described in subsection (a) is hereby declared to be contrary to public policy and therefore void and unenforceable.

History. 1971, c. 875, s. 1; 1973, c. 47, s. 2; 1983, c. 721, s. 2; 1993, c. 539, s. 203; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 19.25(x); 1998-215, s. 96.

Legal Periodicals.

For article on antitrust and unfair trade practice law in North Carolina, with federal law compared, see 50 N.C.L. Rev. 199 (1972).

CASE NOTES

Injunctive Relief at Instance of State. —

Even though individual remedies may exist, the statutes provide for injunctive relief at the instance of the State. To hold otherwise would cripple the legislative intent to provide an effective means of curbing illegitimate business schemes and protecting the consumers of our State. State ex rel. Morgan v. Dare to Be Great, Inc., 15 N.C. App. 275, 189 S.E.2d 802, 1972 N.C. App. LEXIS 1898 (1972).

§ 14-292. Gambling.

Except as provided in Chapter 18C of the General Statutes or in Part 2 or Part 4 of this Article, any person or organization that operates any game of chance or any person who plays at or bets on any game of chance at which any money, property or other thing of value is bet, whether the same be in stake or not, shall be guilty of a Class 2 misdemeanor. This section shall not apply to a person who plays at or bets on any lottery game being lawfully conducted in any state.

History. 1891, c. 29; Rev., s. 3715; C.S., s. 4430; 1979, c. 893, s. 1; 1983, c. 896, s. 1; 1993, c. 539, s. 204; 1994, Ex. Sess., c. 24, s. 14(c); 2005-344, s. 3(e); 2019-13, s. 1.

Cross References.

See Editor’s Note to G.S. 14-289 .

As to gaming contracts, see G.S. 16-1 et seq.

As to State Lottery, see Chapter 18C of the General Statutes, G.S. 18C-101 et seq.

Editor’s Note.

Session Laws 2019-13, s. 5, provides: “This act becomes effective June 1, 2019. If a final order by a court of competent jurisdiction finds that any portion of Sections 1 through 4 of this act is unconstitutional, or if the passage of Sections 1 through 4 of this act would cause the State to forfeit payments due under a compact entered into between the State and a federally recognized Indian tribe, Sections 1 through 4 of this act are void.”

Effect of Amendments.

Session Laws 2005-344, s. 3(e), effective August 31, 2005, inserted “in Chapter 18C of the General Statutes or” near the beginning of the first sentence; and added the last sentence.

Session Laws 2019-13, s. 1, effective June 1, 2019, inserted “or Part 4” after “in Part 2.”

Legal Periodicals.

For reference to acts legalizing pari-mutuel racetrack betting, see 11 N.C.L. Rev. 248 (1933).

For comment, “Place Your Bets On the Keyboard: Are Internet Casinos Legal?,” 25 Campbell L. Rev. 135 (2002).

CASE NOTES

Police Power. —

General Assembly has prohibited certain forms of gambling, including certain video games which offers prizes, and such is within the police power of that body; it is not for the courts to legalize gambling video games but rather is within the province of the General Assembly to make that decision. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Betting is essential to the offense; playing without betting is not indictable. State v. Brannen, 53 N.C. 208 , 1860 N.C. LEXIS 201 (1860).

The section does not apply to prizes given for skill. State v. DeBoy, 117 N.C. 702 , 23 S.E. 167, 1895 N.C. LEXIS 132 (1895).

Games of Chance and Games of Skill Distinguished. —

A game of chance is one in which the element of chance predominates over the element of skill, and a game of skill is one in which the element of skill predominates over the element of chance. State v. Eisen, 16 N.C. App. 532, 192 S.E.2d 613, 1972 N.C. App. LEXIS 1753 (1972).

The universal acceptation of “a game of chance” is such a game as is determined entirely or in part by lot or mere luck, and in which judgment, practice, skill or adroitness have honestly no office at all, or are thwarted by chance. State v. Gupton, 30 N.C. 271 , 1848 N.C. LEXIS 67 (1848).

Illegal Bingo. —

In plaintiff’s action for declaratory judgment seeking declaration of promotional schemes’ legality, where affidavits plainly showed that patrons came to play bingo, not because they wanted or needed to purchase combs and candy, and affidavits also showed patrons understood their purchases to be the basis for the opportunity to play bingo, no unresolved issue of fact regarding the existence of consideration remained for trial; the plaintiffs’ own evidence showed that consideration was an element of the bingo game offered by corporate solicitor; therefore, the game was “gambling” in violation of this section, and defendants were entitled to summary judgment as a matter of law. Animal Protection Soc'y of Durham, Inc. v. State, 95 N.C. App. 258, 382 S.E.2d 801, 1989 N.C. App. LEXIS 757 (1989).

Where some patrons obtained bingo cards without first buying combs or candy, this fact alone did not transform the bingo games offered by corporation into “free bingo”; patrons who obtained the cards without making a purchase received fewer cards than patrons who did buy the items; therefore, the other patrons had to pay to obtain a greater number of bingo cards. Animal Protection Soc'y of Durham, Inc. v. State, 95 N.C. App. 258, 382 S.E.2d 801, 1989 N.C. App. LEXIS 757 (1989).

Blackjack. —

Whether blackjack was a game of chance or one of skill was a question for the jury to decide from the evidence. State v. Eisen, 16 N.C. App. 532, 192 S.E.2d 613, 1972 N.C. App. LEXIS 1753 (1972).

Poker. —

Poker club owner’s proposed operation of a poker club was illegal under G.S. 14-292 because chance predominated over skill in the game of poker, thus making poker a game of chance and the proposed poker club illegal under G.S. 14-292 . Joker Club, L.L.C. v. Hardin, 183 N.C. App. 92, 643 S.E.2d 626, 2007 N.C. App. LEXIS 838 (2007).

Tenpins is not a game of chance. State v. King, 113 N.C. 631 , 18 S.E. 169, 1893 N.C. LEXIS 135 (1893).

Horse racing is included in the category of “gaming” or “gambling.” The word “game” is very comprehensive and embraces every contrivance or institution which has for its object to furnish sport, recreation, or amusement. Let a stake be laid on the chance of a game, and it is gaming. State v. Brown, 221 N.C. 301 , 20 S.E.2d 286, 1942 N.C. LEXIS 457 (1942).

Betting on horse racing, or on any other sort of race, in an offense against the criminal law. The fact that the race itself is one of skill and endurance on the part of the jockey and his mount does not confer immunity upon those who wager on its result. State v. Brown, 221 N.C. 301 , 20 S.E.2d 286, 1942 N.C. LEXIS 457 (1942).

Betting on dog races under a pari-mutuel system having no other purpose than that of providing the facilities by means of tickets, machines, etc., for placing bets, calculating odds, determining winnings, if any, constitutes gambling within the meaning of this section. State ex rel. Taylor v. Carolina Racing Ass'n, 241 N.C. 80 , 84 S.E.2d 390, 1954 N.C. LEXIS 559 (1954).

Calling Transaction a Raffle Does Not Change its Character. —

Where several parties each put up a piece of money and then decide, by throwing dice, who shall have the aggregate sum or “pool,” the game is one of chance and the fact that the aggregate sum so put up is exchanged for a turkey and the transaction is denominated a “raffle” does not change the character of the game. State v. DeBoy, 117 N.C. 702 , 23 S.E. 167, 1895 N.C. LEXIS 132 (1895).

Ordinances as to Gambling Void. —

Gambling being an offense under the general law, a city ordinance covering the same subject is void. State v. McCoy, 116 N.C. 1059 , 21 S.E. 690, 1895 N.C. LEXIS 327 (1895).

All who engage in gambling are principals. State v. DeBoy, 117 N.C. 702 , 23 S.E. 167, 1895 N.C. LEXIS 132 (1895).

A defendant may be indicted for keeping a gaming house and playing for money, without misjoinder. State v. Morgan, 133 N.C. 743 , 45 S.E. 1033, 1903 N.C. LEXIS 124 (1903).

Sufficiency of Indictment. —

An indictment charging defendant with keeping and maintaining a gaming house is sufficient, though it is not alleged that the games played there were games of chance, or that they were played at a place or tables where games of chance were played. State v. Morgan, 133 N.C. 743 , 45 S.E. 1033, 1903 N.C. LEXIS 124 (1903).

Where misdemeanor statement of charges referenced the violation and stated that defendant unlawfully and willfully operated a game of chance, “a poker machine by paying a player money for said player’s score,” the misdemeanor statement of charges were sufficiently alleged so as to charge defendant with two counts of gambling. State v. Chase, 117 N.C. App. 686, 453 S.E.2d 195, 1995 N.C. App. LEXIS 61 (1995).

Injunctive Relief When Kiosks Not Gambling. —

In a case in which plaintiffs claimed that certain kiosks and a marketing system were not prohibited gambling, lottery or gaming products, sovereign immunity did not bar plaintiffs’ claim for injunctive relief, and the trial court properly exercised jurisdiction. Sandhill Amusements, Inc. v. Sheriff of Onslow County, 236 N.C. App. 340, 762 S.E.2d 666, 2014 N.C. App. LEXIS 982 (2014), rev'd, 368 N.C. 91 , 773 S.E.2d 55, 2015 N.C. LEXIS 441 (2015).

§ 14-292.1. [Repealed]

Repealed by Session Laws 1983, c. 896, s. 2.

Cross References.

For present provisions concerning bingo and raffles, see G.S. 14-309.5 et seq.

§ 14-292.2. Class III gaming on Indian lands.

  1. Except as otherwise provided in this section, and notwithstanding any laws which make Class III gaming, as defined by the federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701, et seq., unlawful in this State, the Class III gaming activities listed in subsection (b) of this section may legally be conducted on Indian lands that are held in trust by the United States government for and on behalf of federally recognized Indian tribes, if all the following apply:
    1. The Class III games are conducted in accordance with a valid Class III Tribal-State Gaming Compact or an amendment to a Compact, applicable to the tribe, that has been negotiated and entered into by the Governor under the authority provided in G.S. 147-12(a)(14) and G.S. 71A-8 .
    2. The Tribal-State Gaming Compact has been approved by the U.S. Department of the Interior.
    3. The Tribal-State Gaming Compact requires that all monies paid by the tribe under the Compact be paid to the Indian Gaming Education Revenue Fund established by law.
  2. The following Class III games may lawfully be conducted pursuant to subsection (a) of this section:
    1. Gaming machines.
    2. Live table games.
    3. Raffles, as defined in G.S. 14-309.15(b) .
    4. Video games, as defined in G.S. 14-306 and G.S. 14-306.1 A.
    5. Sports and horse race wagering.
  3. Nothing in this section shall modify or affect laws applicable to persons or entities other than federally recognized Indian tribes operating games in accordance with subsection (a) of this section.
  4. Notwithstanding any other provision of law, there shall be no more than three Class III gaming facilities authorized by a Compact entered under subsection (a) of this section on the lands of any single Indian tribe, and a Compact that authorizes or allows for the operation of more than three such facilities shall be invalid.
  5. As used in this section, the following terms mean:
    1. Gaming machine. — A machine that meets the definition of any of the following:
      1. As set forth in G.S. 14-306 .
      2. “Gaming machine” as set forth in 25 C.F.R. § 542.2.
      3. “Gambling device” as set forth in 15 U.S.C. § 1171.
    2. Live table games. — Games that utilize real nonelectronic cards, dice, chips, or equipment in the play and operation of the game.
    3. Sports wagering. — The placing of wagers on the outcome of professional and collegiate sports contests. For purposes of this subdivision, the wager shall be deemed to occur where it is initiated and received, all of which must occur on Indian lands within the State lawfully permitted to conduct Class III gaming activities pursuant to G.S. 14-292.2(a).
    4. Horse race wagering. — Fixed odds or pari-mutuel wagering on thoroughbred, harness or other racing of horses, including simulcasting and off-track betting. For purposes of this subdivision, the wager shall be deemed to occur where it is initiated and received, all of which must occur on Indian lands within the State lawfully permitted to conduct Class III gaming activities pursuant to G.S. 14-292.2(a).

History. 2012-6, s. 2; 2019-163, s. 1.

Cross References.

As to authorization for federally recognized Indian tribes to conduct games, see G.S. 71A-8 .

As to Indian Gaming Education Revenue Fund, see G.S. 143C-9-7 .

Editor’s Note.

Session Laws 2012-6, preamble, provides: “Whereas, acting under her authority under the General Statutes, the Governor has negotiated on behalf of the State an Amended & Restated Tribal Gaming Compact (Compact) with the Eastern Band of Cherokee Indians that modifies the type of gaming activity authorized on Indian lands and generates revenue for the benefit of both the Eastern Band of Cherokee Indians and the State; and

“Whereas, the Compact is effective upon the General Assembly amending the General Statutes to authorize additional Class III gaming activities on Indian lands, as set out in the Compact and upon approval by the U.S. Department of Interior; and

“Whereas, the Governor and the Eastern Band of Cherokee Indians intend for the State’s portion of revenue derived from the Compact to be applied toward the improvement of classroom education in North Carolina by appropriation from a distinct fund and have urged this General Assembly to consider making the necessary appropriations according to law to accomplish this goal; Now, therefore,”

Effect of Amendments.

Session Laws 2019-163, s. 1, effective July 26, 2019, added subdivisions (b)(5), (e)(3) and (e)(4).

§ 14-293. Allowing gambling in houses of public entertainment; penalty.

Except as provided in Chapter 18C of the General Statutes, if any keeper of an ordinary or other house of entertainment, or of a house wherein alcoholic beverages are retailed, shall knowingly suffer any game, at which money or property, or anything of value, is bet, whether the same be in stake or not, to be played in any such house, or in any part of the premises occupied therewith; or shall furnish persons so playing or betting either on said premises or elsewhere with drink or other thing for their comfort or subsistence during the time of play, he shall be guilty of a Class 2 misdemeanor. Any person who shall be convicted under this section shall, upon such conviction, forfeit his license to do any of the businesses mentioned in this section, and shall be forever debarred from doing any of such businesses in this State. The court shall embody in its judgment that such person has forfeited his license, and no board of county commissioners, board of town commissioners or board of aldermen shall thereafter have power or authority to grant to such convicted person or his agent a license to do any of the businesses mentioned herein.

History. 1799, c. 526, P.R; 1801, c. 581, P.R; 1831, c. 26; R.C., c. 34, s. 76; Code, s. 1043; 1901, c. 753; Rev., s. 3716; C.S., 4431; 1967, c. 101, s. 1; 1981, c. 412, s. 4(4); c. 747, s. 66; 1993, c. 539, s. 205; 1994, Ex. Sess., c. 24, s. 14(c); 2005-344, s. 3(f).

Effect of Amendments.

Session Laws 2005-344, s. 3(f), effective August 31, 2005, substituted “Except as provided in Chapter 18C of the General Statutes or” for “If” at the beginning of the section.

CASE NOTES

Gambling in Leased Room of Tavern. —

Where it appeared that the room, in which the game took place, was a part of the house in which the tavern was kept, but had been leased and was not under the control of the landlord, it was held that the defendant landlord could not be convicted under this section. State v. Keisler, 51 N.C. 73 , 1858 N.C. LEXIS 109 (1858).

House Where Liquor Is Retailed. —

For case under this provision, see State v. Terry, 20 N.C. 325 , 1839 N.C. LEXIS 45 (1839).

Sufficiency of Warrant. —

A warrant charging that defendant did operate a house in which various types of gambling “is continuously carried on” and did permit named persons to engage in a game of cards in which money was bet, held sufficient to charge defendant with operating a gambling house. State v. Anderson, 259 N.C. 499 , 130 S.E.2d 857, 1963 N.C. LEXIS 576 (1963).

Racketeering Activity. —

Gambling in houses of public entertainment in violation of this section, operating or possessing gambling devices in violation of G.S. 14-302 , and selling or possessing numbers tickets in violation of G.S. 14-291.1 are gambling offenses chargeable as a general misdemeanor punishable by up to two years’ imprisonment, thereby satisfying the federal criteria for racketeering activity under 18 U.S.C. § 1961(1). Therefore, the gambling offenses constituted “racketeering activity” under the alternate definition established in G.S. 75D-3(c)(2). State ex rel. Thornburg v. Lot & Bldgs. at 800 Waughtown St., 107 N.C. App. 559, 421 S.E.2d 374, 1992 N.C. App. LEXIS 757 (1992).

Injunctive Relief in Determining Nature of Items. —

In a case in which plaintiffs claimed that certain kiosks and a marketing system were not prohibited gambling, lottery or gaming products, sovereign immunity did not bar plaintiffs’ claim for injunctive relief, and the trial court properly exercised jurisdiction. Sandhill Amusements, Inc. v. Sheriff of Onslow County, 236 N.C. App. 340, 762 S.E.2d 666, 2014 N.C. App. LEXIS 982 (2014), rev'd, 368 N.C. 91 , 773 S.E.2d 55, 2015 N.C. LEXIS 441 (2015).

Punishment. —

For violation of this section a fine of $2,000 and imprisonment of 30 days, and thereafter until the fine and costs were paid, was held not excessive punishment. State v. Miller, 94 N.C. 904 , 1886 N.C. LEXIS 166 (1886).

§ 14-294. Gambling with faro banks and tables.

If any person shall open, establish, use or keep a faro bank, or a faro table, with the intent that games of chance may be played thereat, or shall play or bet thereat any money, property or other thing of value, whether the same be in stake or not, he shall be guilty of a Class 2 misdemeanor.

History. 1848, c. 34; R.C., c. 71; 1856-7, c. 25; Code, s. 1044; Rev., s. 3717; C.S., s. 4432; 1993, c. 539, s. 206; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to compelling testimony in cases when this section and G.S. 14-295 through 14-297 have been violated, see G.S. 8-55 .

§ 14-295. Keeping gaming tables, illegal punchboards or slot machines, or betting thereat.

If any person shall establish, use or keep any gaming table (other than a faro bank), by whatever name such table may be called, an illegal punchboard or an illegal slot machine, at which games of chance shall be played, he shall be guilty of a Class 2 misdemeanor; and every person who shall play thereat or thereat bet any money, property or other thing of value, whether the same be in stake or not, shall be guilty of a Class 2 misdemeanor.

History. 1791, c. 336, P.R; 1798, c. 502, s. 2, P.R; R.C., c. 34, s. 72; Code, s. 1045; Rev., s. 3718; C.S., s. 4433; 1931, c. 14, s. 2; 1993, c. 539, s. 207; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to gambling generally, see G.S. 14-292 .

Editor’s Note.

See Editor’s note to G.S. 14-296 .

CASE NOTES

This section prohibits establishing, using or keeping an illegal punchboard. Actual operation of the device is not an element of the offense. State v. Warren, 61 N.C. App. 549, 301 S.E.2d 126, 1983 N.C. App. LEXIS 2690 (1983).

Sufficiency of Indictment. —

An indictment under this section is good without any averment that the act was done “willfully and unlawfully” or that the games of chance were played at such table for money or other property. State v. Howe, 100 N.C. 449 , 5 S.E. 671, 1888 N.C. LEXIS 208 (1888).

Indictment Quashed. —

A bill of indictment which does not charge that the game played was one of chance, and that it was played at a place or table where games of chance are played, will be quashed. State v. Norwood, 94 N.C. 935 , 1886 N.C. LEXIS 176 (1886).

Evidence Admissible. —

Where defendants admit keeping gaming tables, evidence may be admitted tending to show that they were continuously present at the place and tending to show their large share in the receipts of these tables. State v. Galloway, 188 N.C. 416 , 124 S.E. 745, 1924 N.C. LEXIS 87 (1924).

§ 14-296. Illegal slot machines and punchboards defined.

An illegal slot machine or punchboard within the contemplation of G.S. 14-295 through 14-298 is defined as a device where the user may become entitled to receive any money, credit, allowance, or any thing of value, as defined in G.S. 14-306 .

History. 1931, c. 14, s. 1; 1989, c. 406, s. 2.

Editor’s Note.

The act from which this section was taken amended G.S. 14-295 through 14-298 to make them applicable to illegal slot machines and punchboards. The act expressly provided that it should not have the effect of modifying in any way G.S. 14-301 through 14-303 and should be construed as supplemental thereto.

§ 14-297. Allowing gaming tables, illegal punchboards or slot machines on premises.

If any person shall knowingly suffer to be opened, kept or used in his house or on any part of the premises occupied therewith, any of the gaming tables prohibited by G.S. 14-289 through 14-300 or any illegal punchboard or illegal slot machine, he shall forfeit and pay to any one who will sue therefor two hundred dollars ($200.00), and shall also be guilty of a Class 2 misdemeanor.

History. 1798, c. 502, s. 3, P.R; 1800, c. 5, s. 2, P.R; R.C., c. 34, s. 73; Code, s. 1046; Rev., s. 3719; C.S., s. 4434; 1931, c. 14, s. 3; 1993, c. 539, s. 208; 1994, Ex. Sess., c. 24, s. 14(c).

Editor’s Note.

See Editor’s Note to G.S. 14-296 .

CASE NOTES

Evidence Insufficient. —

Where the agreed statement of facts in an action to recover the penalty under this section states that defendant kept a slot machine in his store, without a finding that the machine was illegal, the findings are insufficient to support a judgment against defendant. Nivens v. Justice, 210 N.C. 349 , 186 S.E. 237, 1936 N.C. LEXIS 99 (1936).

§ 14-298. Seizure of illegal gaming items.

Upon a determination that probable cause exists to believe that any gaming table prohibited to be used by G.S. 14-289 through G.S. 14-300 , any illegal punchboard or illegal slot machine, any video game machine prohibited to be used by G.S. 14-306 or G.S. 14-306.1 A, any game terminal described in G.S. 14-306 .3(b), or any electronic machine or device using an entertaining display in violation of G.S. 14-306.4 is in the illegal possession or use of any person within the limits of their jurisdiction, all sheriffs and law enforcement officers are authorized to seize the items in accordance with applicable State law. Any law enforcement agency in possession of that item shall retain the item pending a disposition order from a district or superior court judge. Upon application by the law enforcement agency, district attorney, or owner, and after notice and opportunity to be heard by all parties, if the court determines that the item is unlawful to possess, it shall enter an order releasing the item to the law enforcement agency for destruction or for training purposes. If the court determines that the item is not unlawful to possess and will not be used in violation of the law, the item shall be ordered released to its owner upon satisfactory proof of ownership. The foregoing procedures for release shall not apply, however, with respect to an item seized for use as evidence in any criminal action or proceeding until after entry of final judgment.

History. 1791, c. 336, P.R; 1798, c. 502, s. 2, P.R; R.C., c. 34, s. 74; Code, s. 1049; Rev., s. 3720; C.S., s. 4435; 1931, c. 14, s. 4; 1973, c. 108, s. 11; 2000-151, s. 5; 2004-199, ss. 47(a), 47(b); 2004-203, s. 20(a); 2007-484, s. 3(a); 2008-122, s. 2; 2010-103, s. 2.

Editor’s Note.

Session Laws 2010-103, provides in its preamble: “Whereas, the 1791 General Assembly determined that ‘all public gaming-tables are destructive of the morality of the inhabitants of this State, and tend greatly to the encouragement of vice and dissipation’ (Law of 1791, Chapter 5); and

“Whereas, the State of North Carolina has continuously prohibited public gaming in North Carolina since 1791; and

“Whereas, the State of North Carolina specifically prohibited the use of slot machines in 1937; and

“Whereas, the State of North Carolina specifically prohibited the use of video poker machines in 2000 and again in 2006; and

“Whereas, the State of North Carolina has previously determined that such purpose should be carried out to prevent the operation of bingo by professionals for profit, prevent commercialized gambling, prevent the disguise of bingo and other game forms or promotional schemes, and prevent participation by criminal and other undesirable elements; and

“Whereas, any federally recognized Indian tribe may conduct such video poker games in accordance with an approved Class III Tribal-State Gaming Compact applicable to that tribe as provided in G.S. 147-12(14) and G.S. 71A-8 ; and

“Whereas, the State of North Carolina has previously determined that no video poker machine may be utilized for play under Chapter 18C of the General Statutes; and

“Whereas, since 2006, companies have developed electronic machines and devices to gamble through pretextual sweepstakes relationships with Internet service, telephone cards, and office supplies, among other products; and

“Whereas, companies using electronic machines and devices for sweepstakes have sought, and received, declaratory relief from the courts; and

“Whereas, such electronic sweepstakes systems utilizing video poker machines and other similar simulated game play create the same encouragement of vice and dissipation as other forms of gambling, in particular video poker, by encouraging repeated play, even when allegedly used as a marketing technique; and

“ ‘Whereas, it hath appeared to this General Assembly that the before recited acts hath not that good effect which was intended’ (Laws of 1799, Chapter 12); Now, therefore,”

Session Laws 2010-103, s. 5, provides: “Nothing in this act shall be construed to make lawful any machine or device that is unlawful under any other provision of law. Prosecutions for offenses committed before the effective date of this act [December 1, 2010] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2010-103, s. 2, effective December 1, 2010, and applicable to offenses committed on or after that date, in the first sentence, inserted “or any electronic machine or device using an entertaining display in violation of G.S. 14-306.4 ” and made related changes.

Legal Periodicals.

For article, “End of the Chase: Using North Carolina as a Guide for Ending Other States’ Video Sweepstakes Legislative Merry-Go-Round in the Wake of Hest Technologies v. North Carolina,” see 36 N.C. Cent. L. Rev. 41 (2013).

§ 14-299. Property exhibited by gamblers to be seized; disposition of same.

Except as provided in Chapter 18C of the General Statutes or in G.S. 14-292 , all moneys or other property or thing of value exhibited for the purpose of alluring persons to bet on any game, or used in the conduct of any such game, including any motor vehicle used in the conduct of a lottery within the purview of G.S. 14-291.1 , shall be liable to be seized by any court of competent jurisdiction or by any person acting under its warrant. Moneys so seized shall be turned over to and paid to the treasurer of the county wherein they are seized, and placed in the general fund of the county. Any property seized which is used for and is suitable only for gambling shall be destroyed, and all other property so seized shall be sold in the manner provided for the sale of personal property by execution, and the proceeds derived from said sale shall (after deducting the expenses of keeping the property and the costs of the sale and after paying, according to their priorities all known prior, bona fide liens which were created without the lienor having knowledge or notice that the motor vehicle or other property was being used or to be used in connection with the conduct of such game or lottery) be turned over and paid to the treasurer of the county wherein the property was seized, to be placed by said treasurer in the general fund of the county.

History. 1798, c. 502, s. 3, P.R; R.C., c. 34, s. 77; Code, s. 1051; Rev., s. 3722; C.S., s. 4436; 1943, c. 84; 1957, c. 501; 1973, c. 108, s. 12; 2005-344, s. 3(g).

Effect of Amendments.

Session Laws 2005-344, s. 3(g), effective August 31, 2005, substituted “Except as provided in Chapter 18C of the General Statutes or in G.S. 14-292 , all” for “All” at the beginning of the section.

CASE NOTES

A confiscation order entered under this section is no part of the personal judgment imposed under G.S. 14-291.1 . Hence, a defendant may comply with the personal judgment entered against him upon conviction of violating G.S. 14-291.1 , and at the same time prosecute an appeal from an order of confiscation entered under this section, whether embraced in the same judgment or not; but the failure to appeal the personal judgment, while not estopping him for further contesting the order of confiscation, forever precludes him from contesting the fact of guilt. State v. Richardson, 228 N.C. 426 , 45 S.E.2d 536, 1947 N.C. LEXIS 336 (1947).

This section controls when the procedure used in a raffle violates the “randomness” provision of G.S. 14-309.15 ; accordingly, proceeds from the tainted raffle should have been paid over to the county’s general fund rather than to defendant, whose mistakes alternately prohibited the proper awarding of the promised grand prize that had served as an inducement in the sale of tickets. Keene Convenient Mart, Inc. v. SSS Band Backers, 109 N.C. App. 384, 427 S.E.2d 322, 1993 N.C. App. LEXIS 277 (1993).

§ 14-300. Opposing destruction of gaming tables and seizure of property.

If any person shall oppose the destruction of any prohibited gaming table, or the seizure of any moneys, property or other thing staked on forbidden games, or shall take and carry away the same or any part thereof after seizure, he shall forfeit and pay to the person so opposed one thousand dollars ($1,000), for the use of the State and the person so opposed, and shall, moreover, be guilty of a Class 2 misdemeanor.

History. 1798, c. 502, s. 4, P.R; R.C., c. 34, s. 78; Code, s. 1052; Rev., s. 3723; C.S., s. 4437; 1993, c. 539, s. 209; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-301. Operation or possession of slot machine; separate offenses.

It shall be unlawful for any person, firm or corporation to operate, keep in his possession or in the possession of any other person, firm or corporation, for the purpose of being operated, any slot machine or device where the user may become entitled to receive any money, credit, allowance, or any thing of value, as defined in G.S. 14-306 . Each time said machine is operated as aforesaid shall constitute a separate offense.

History. 1923, c. 138, ss. 1, 2; C.S., s. 4437(a); 1989, c. 406, s. 3.

Editor’s Note.

See Editor’s note to G.S. 14-296 .

CASE NOTES

Sections 14-301 to 14-303 and G.S. 14-304 to 14-309 Are Complementary. —

This section and G.S. 14-302 and 14-303, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by G.S. 14-304 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

And Involve Separate and Distinct Offenses. —

Where an indictment charged defendant in one count with ownership, sale, lease and transportation of certain slot machines and devices prohibited by law, G.S. 14-304 through 14-309, and charged defendant in the second count with the operation and possession of certain illegal slot machines, under this section and G.S. 14-302 and 14-303, it was held that the different counts in the bill could stand as separate and distinct offenses, and separate judgments could be entered thereon, and defendant’s contention of duplicity was untenable. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

What Value Is Required to Be Given. —

Under this section, a slot machine so operated that one putting into it a coin receives, in any event, the value of such coin in chewing gum, and stands to win by chance additional chewing gum or discs of commercial value without further payment, is condemned by the statute as being unlawful. But if the slot machine were so operated that one who puts in a coin receives the same return in market value each and every time such machine is operated, it would not then fall within the condemnation of the statute. State v. May, 188 N.C. 470 , 125 S.E. 9, 1924 N.C. LEXIS 104 (1924).

Only Lawful Machines Will Be Licensed. —

The State license issued for the operation of a slot machine is for one that is lawful and does not permit the operation of one so devised as to give to the one who happens to strike certain mechanical combinations more of the merchandise than received at other times. State v. May, 188 N.C. 470 , 125 S.E. 9, 1924 N.C. LEXIS 104 (1924).

Sufficiency of Indictment. —

An indictment charging that the defendant “unlawfully and willfully did operate a lottery, to wit, a slot machine (chapter 138, Public Laws 1923) against the form of the statute,” etc., was insufficient because it failed to inform the accused of the specific offense or the necessary ingredients thereof, notwithstanding the statute was cited. State v. Ballangee, 191 N.C. 700 , 132 S.E. 795, 1926 N.C. LEXIS 158 (1926).

Injunctive Relief When Kiosks Not Gambling Devices. —

In a case in which plaintiffs claimed that certain kiosks and a marketing system were not prohibited gambling, lottery, or gaming products, sovereign immunity did not bar plaintiffs’ claim for injunctive relief, and the trial court properly exercised jurisdiction. Sandhill Amusements, Inc. v. Sheriff of Onslow County, 236 N.C. App. 340, 762 S.E.2d 666, 2014 N.C. App. LEXIS 982 (2014), rev'd, 368 N.C. 91 , 773 S.E.2d 55, 2015 N.C. LEXIS 441 (2015).

§ 14-302. Punchboards, vending machines, and other gambling devices; separate offenses.

It shall be unlawful for any person, firm or corporation to operate or keep in his possession, or the possession of any other person, firm or corporation, for the purpose of being operated, any punchboard, slot machine or device where the user may become entitled to receive any money, credit, allowance, or any thing of value, as defined in G.S. 14-306 . Each time said punchboard, slot machine or device where the user may become entitled to receive any money, credit, allowance, or any thing of value, as defined in G.S. 14-306 is operated, played, or patronized by the paying of money or other thing of value therefor, shall constitute a separate violation of this section as to operation thereunder.

History. 1923, c. 138, ss. 3, 4; C.S., s. 4437(b); 1989, c. 406, s. 4.

Editor’s Note.

See Editor’s note to G.S. 14-296 .

CASE NOTES

Sections 14-301 to 14-303 and G.S. 14-304 to 14-309 Are Complementary. —

This section and G.S. 14-301 and 14-303, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by G.S. 14-304 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

Operation of Device Essential. —

An essential element of the offense created by this section is the operation of the gambling device or the keeping in possession of such device for the purpose of being operated; the mere having in possession of gambling devices, and nothing more, is not made a criminal offense. State v. Sheppard, 4 N.C. App. 670, 167 S.E.2d 535, 1969 N.C. App. LEXIS 1574 (1969).

Racketeering Activity. —

Gambling in houses of public entertainment in violation of G.S. 14-293 , operating or possessing gambling devices in violation of this section, and selling or possessing numbers tickets in violation of G.S. 14-291.1 are gambling offenses chargeable as a general misdemeanor punishable by up to two years’ imprisonment, thereby satisfying the federal criteria for racketeering activity under 18 U.S.C. § 1961(1). Therefore, the gambling offenses constituted “racketeering activity” under the alternate definition established in G.S. 75D-3(c)(2). State ex rel. Thornburg v. Lot & Bldgs. at 800 Waughtown St., 107 N.C. App. 559, 421 S.E.2d 374, 1992 N.C. App. LEXIS 757 (1992).

Indictment Held Defective. —

An indictment charging possession of gambling devices, but failing to charge that defendant operated the devices or had them in his possession for the purpose of being operated, is fatally defective. State v. Jones, 218 N.C. 734 , 12 S.E.2d 292, 1940 N.C. LEXIS 79 (1940); State v. Sheppard, 4 N.C. App. 670, 167 S.E.2d 535, 1969 N.C. App. LEXIS 1574 (1969).

The omission in a warrant of a charge that the defendant operated the gambling devices or that he kept such devices in his own or the possession of other persons for the purpose of being operated is a fatal defect in the warrant, since an essential element of the offense as provided by this section is the operation of the gambling device or the keeping of the device in his possession for the purpose of being operated. Mere possession of a gambling device is not a criminal offense. State v. Jones, 36 N.C. App. 263, 243 S.E.2d 827, 1978 N.C. App. LEXIS 2464 (1978).

§ 14-303. Violation of two preceding sections a misdemeanor.

A violation of any of the provisions of G.S. 14-301 or 14-302 shall be a Class 2 misdemeanor.

History. 1923, c. 138, s. 5; C.S., s. 4437(c); 1993, c. 366, s. 2, c. 539, s. 210; 1994, Ex. Sess., c. 14, s. 8(a), (b).

Editor’s Note.

See Editor’s note to G.S. 14-296 .

CASE NOTES

Sections 14-301 to 14-303 and G.S. 14-304 to 14-309 Are Complementary. —

This section and G.S. 14-301 and 14-302, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by G.S. 14-304 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

§ 14-304. Manufacture, sale, etc., of slot machines and devices.

It shall be unlawful to manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend or give away, transport, or expose for sale or lease, or to offer to sell, rent, lease, let on shares, lend or give away, or to permit the operation of, or for any person to permit to be placed, maintained, used or kept in any room, space or building owned, leased or occupied by him or under his management or control, any slot machine or device where the user may become entitled to receive any money, credit, allowance, or any thing of value, as defined in G.S. 14-306 .

History. 1937, c. 196, s. 1; 1989, c. 406, s. 5.

Legal Periodicals.

For comment on this and the following sections, see 15 N.C.L. Rev. 340 (1937).

CASE NOTES

Constitutionality. —

This and following sections, prohibiting coin slot machines in the operation of which a player may make varying scores or tallies upon which wages may be made, and differentiating between such machines and those returning a definite and unvarying service or things of value each time they are played, are in accord with the policy of the State to suppress gambling and have a reasonable relation to this objective, and this statute is constitutional as a reasonable regulation relating to the public morals and welfare, well within the police power of the State. Calcutt v. McGeachy, 213 N.C. 1 , 195 S.E. 49, 1938 N.C. LEXIS 1 (1938); State v. Abbott, 218 N.C. 470 , 11 S.E.2d 539, 1940 N.C. LEXIS 1 7 (1940).

Sections 14-301 to 14-303 and G.S. 14-304 to 14-309 Are Complementary. —

Sections 14-301, 14-302 and 14-303, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by this section and G.S. 14-305 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

Not Repealed by G.S. 105-65.1. —

The provisions of the Flanagan Act, ch. 196, Public Laws of 1937, proscribing the possession and distribution of a coin slot machine in the operation of which the user may secure additional chances or rights to use the machine were not repealed by G.S. 105-65.1. State v. Abbott, 218 N.C. 470 , 11 S.E.2d 539, 1940 N.C. LEXIS 17 (1940).

Testimony as to Description and Operation of Machines. —

In a prosecution under this section it is competent for witnesses who have examined and studied the machines in question to testify as to their physical description and operation. State v. Davis, 229 N.C. 552 , 50 S.E.2d 668, 1948 N.C. LEXIS 371 (1948).

OPINIONS OF ATTORNEY GENERAL

Storage of Video Games or Video Poker Machines Not Permitted. — Video games or video poker machines, the operation of which would be illegal under North Carolina law, may not be lawfully stored or warehoused in the State. See Opinion of Attorney General to The Honorable R.C. Soles, Jr., North Carolina Senate, 2000 N.C. AG LEXIS 15 (6/7/2000).

§ 14-305. Agreements with reference to slot machines or devices made unlawful.

It shall be unlawful to make or permit to be made with any person any agreement with reference to any slot machines or device where the user may become entitled to receive any money, credit, allowance, or any thing of value, as defined in G.S. 14-306 pursuant to which the user thereof may become entitled to receive any money, credit, allowance, or anything of value or additional chance or right to use such machines or devices, or to receive any check, slug, token or memorandum entitling the holder to receive any money, credit, allowance or thing of value.

History. 1937, c. 196, s. 2; 1989, c. 406, s. 6.

CASE NOTES

Sections 14-301 to 14-303 and §§ 14-304 to 14-309 Are Complementary. —

Sections 14-301, 14-302 and 14-303, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by this section and G.S. 14-305 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

§ 14-306. Slot machine or device defined.

  1. Any machine, apparatus or device is a slot machine or device within the provisions of G.S. 14-296 through 14-309, if it is one that is adapted, or may be readily converted into one that is adapted, for use in such a way that, as a result of the payment of any piece of money or coin or token or any credit card, debit card, prepaid card, or any other method that requires payment to activate play, whether directly into the slot machine or device or resulting in remote activation, such machine or device is caused to operate or may be operated in such manner that the user may receive or become entitled to receive any piece of money, credit, allowance or thing of value, or any check, slug, token or memorandum, whether of value or otherwise, or which may be exchanged for any money, credit, allowance or any thing of value, or which may be given in trade, or the user may secure additional chances or rights to use such machine, apparatus or device; or any other machine or device designed and manufactured primarily for use in connection with gambling and which machine or device is classified by the United States as requiring a federal gaming device tax stamp under applicable provisions of the Internal Revenue Code. This definition is intended to embrace all slot machines and similar devices except slot machines in which is kept any article to be purchased by depositing any coin or thing of value, and for which may be had any article of merchandise which makes the same return or returns of equal value each and every time it is operated, or any machine wherein may be seen any pictures or heard any music by depositing therein any coin or thing of value, or any slot weighing machine or any machine for making stencils by the use of contrivances operated by depositing in the machine any coin or thing of value, or any lock operated by slot wherein money or thing of value is to be deposited, where such slot machines make the same return or returns of equal value each and every time the same is operated and does not at any time it is operated offer the user or operator any additional money, credit, allowance, or thing of value, or check, slug, token or memorandum, whether of value or otherwise, which may be exchanged for money, credit, allowance or thing of value or which may be given in trade or by which the user may secure additional chances or rights to use such machine, apparatus, or device, or in the playing of which the operator does not have a chance to make varying scores or tallies.
  2. The definition contained in subsection (a) of this section and G.S. 14-296 , 14-301, 14-302, and 14-305 does not include coin-operated machines, video games, pinball machines, and other computer, electronic or mechanical devices that are operated and played for amusement, that involve the use of skill or dexterity to solve problems or tasks or to make varying scores or tallies and that:
    1. Do not emit, issue, display, print out, or otherwise record any receipt, paper, coupon, token, or other form of record which is capable of being redeemed, exchanged, or repurchased for cash, cash equivalent, or prizes, or award free replays; or
    2. In actual operation, limit to eight the number of accumulated credits or replays that may be played at one time and which may award free replays or paper coupons that may be exchanged for prizes or merchandise with a value not exceeding ten dollars ($10.00), but may not be exchanged or converted to money.
  3. Any video machine, the operation of which is made lawful by subsection (b)(2) of this section, shall have affixed to it in view of the player a sticker informing that person that it is a criminal offense with the potential of imprisonment to pay more than that which is allowed by law. In addition, if the machine has an attract chip which allows programming, the static display shall contain the same message.
  4. The exception in subsection (b)(2) of this section does not apply to any machine that pays off in cash. The exemption in subsection (b)(2) of this section does not apply where the prizes, merchandise, credits, or replays are (i) repurchased for cash or rewarded by cash, (ii) exchanged for merchandise of a value of more than ten dollars ($10.00), or (iii) where there is a cash payout of any kind, by the person operating or managing the machine or the premises, or any agent or employee of that person. It is also a criminal offense, punishable under G.S. 14-309 , for the person making the unlawful payout to the player of the machine to violate this section, in addition to any other person whose conduct may be unlawful.

History. 1937, c. 196, s. 3; 1967, c. 1219; 1977, c. 837; 1985, c. 644; 1989, c. 406, s. 1; 1993, c. 366, s. 1; 2000-151, s. 4; 2010-103, s. 3.

Editor’s Note.

Session Laws 2010-103, provides in its preamble: “Whereas, the 1791 General Assembly determined that ‘all public gaming-tables are destructive of the morality of the inhabitants of this State, and tend greatly to the encouragement of vice and dissipation’ (Law of 1791, Chapter 5); and

“Whereas, the State of North Carolina has continuously prohibited public gaming in North Carolina since 1791; and

“Whereas, the State of North Carolina specifically prohibited the use of slot machines in 1937; and

“Whereas, the State of North Carolina specifically prohibited the use of video poker machines in 2000 and again in 2006; and

“Whereas, the State of North Carolina has previously determined that such purpose should be carried out to prevent the operation of bingo by professionals for profit, prevent commercialized gambling, prevent the disguise of bingo and other game forms or promotional schemes, and prevent participation by criminal and other undesirable elements; and

“Whereas, any federally recognized Indian tribe may conduct such video poker games in accordance with an approved Class III Tribal-State Gaming Compact applicable to that tribe as provided in G.S. 147-12(14) and G.S. 71A-8 ; and

“Whereas, the State of North Carolina has previously determined that no video poker machine may be utilized for play under Chapter 18C of the General Statutes; and

“Whereas, since 2006, companies have developed electronic machines and devices to gamble through pretextual sweepstakes relationships with Internet service, telephone cards, and office supplies, among other products; and

“Whereas, companies using electronic machines and devices for sweepstakes have sought, and received, declaratory relief from the courts; and

“Whereas, such electronic sweepstakes systems utilizing video poker machines and other similar simulated game play create the same encouragement of vice and dissipation as other forms of gambling, in particular video poker, by encouraging repeated play, even when allegedly used as a marketing technique; and

“ ‘Whereas, it hath appeared to this General Assembly that the before recited acts hath not that good effect which was intended’ (Laws of 1799, Chapter 12); Now, therefore,”

Session Laws 2010-103, s. 5, provides: “Nothing in this act shall be construed to make lawful any machine or device that is unlawful under any other provision of law. Prosecutions for offenses committed before the effective date of this act [December 1, 2010] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2010-103, s. 3, effective December 1, 2010, and applicable to offenses committed on or after that date, in the first sentence in subsection (a), substituted “result of the payment” for “result of the insertion” and “coin or token” for “coin or other object,” and inserted “or any credit card, debit card, prepaid card, or any other method that requires payment to activate play, whether directly into the slot machine or device or resulting in remote activation.”

CASE NOTES

Constitutionality. —

The definition of “slot machine” as set forth in this section is not unconstitutionally vague. State v. Crabtree, 126 N.C. App. 729, 487 S.E.2d 575, 1997 N.C. App. LEXIS 628 (1997).

Sections 14-301 to 14-303 and G.S. 14-304 to 14-309 Are Complementary. —

Sections 14-301, 14-302 and 14-303, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by this section and G.S. 14-305 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

Test of Character of Game. —

In State v. Stroupe, 238 N.C. 34 , 76 S.E.2d 313 (1953), the N.C. Supreme Court determined that the test of the character of a game is whether it is a game of chance or a game of skill, not whether it contains an element of chance or skill, but which is the dominating element that determines the result of the game; or, whether or not the element of chance is present in such a manner as to thwart the exercise of skill or judgment. Collins Coin Music Co. v. North Carolina ABC Comm'n, 117 N.C. App. 405, 451 S.E.2d 306, 1994 N.C. App. LEXIS 1254 (1994).

Sufficiency of Indictment. —

An indictment charging the ownership and distribution of slot machines adapted for use in such a way that as a result of the insertion of a coin the machine may be operated in such a manner that the user may secure additional chances or rights to use such machine and upon which the user has a chance to make various scores upon the outcome of which wagers may be made follows the language of this section and is sufficient to charge the offense therein defined. State v. Abbott, 218 N.C. 470 , 11 S.E.2d 539, 1940 N.C. LEXIS 17 (1940).

Valuation of Gaming Machines. —

Defendant could not use the time period in G.S. 105-312(3), dealing with valuation of gaming machines, to defeat his conviction for possessing illegal gambling machines under G.S. 14-306.1(a)(1); the trial court did not err in instructing the jury on the illegal gaming machine charge and in refusing defendant’s requested charge where there was sufficient evidence that defendant’s warrantless arrest was proper. State v. Childers, 154 N.C. App. 375, 572 S.E.2d 207, 2002 N.C. App. LEXIS 1472 (2002), cert. denied, 356 N.C. 682 , 577 S.E.2d 899, 2003 N.C. LEXIS 237 (2003).

Evidence. —

Where it was admitted that the machines in question were owned by one defendant and rented by him to the other defendants, testimony of an officer, who had examined and studied the machines, that from his observation they could be converted, or reconverted, to coin slot operated machines by simple mechanical changes was evidence sufficient to overrule defendants’ demurrer, and the fact that the witness failed to complete a demonstration of the conversion of such a machine because of lack of soldering tools did not amount to a failure of the State’s evidence upon the critical issue. State v. Davis, 229 N.C. 552 , 50 S.E.2d 668, 1948 N.C. LEXIS 371 (1948).

Video Card Game Held Illegal. —

Where the operation of video card game depended upon chance rather than a player’s skill or dexterity, and a player could win, from a single hand, coupons worth more than ten dollars ($10.00), plaintiff’s machines did not fall within the exception in this section and were illegal slot machines. Collins Coin Music Co. v. North Carolina ABC Comm'n, 117 N.C. App. 405, 451 S.E.2d 306, 1994 N.C. App. LEXIS 1254 (1994).

Exception for Gaming by a Federally Recognized Indian Tribe. —

Prohibition by the State of North Carolina against the operation of video gaming machines does not apply to gaming activities undertaken by a federally recognized Indian Tribe under the Indian Gaming Regulatory Act, 25 U.S.C.S. § 2710 et seq. Hatcher v. Harrah's NC Casino Co., LLC, 169 N.C. App. 151, 610 S.E.2d 210, 2005 N.C. App. LEXIS 512 (2005).

OPINIONS OF ATTORNEY GENERAL

Legal Video Poker Machines. — Collins Coin Music Co. v. N.C. Alcoholic Beverage Control Comm., 117 N.C. App. 405, cert. denied, 340 N.C. 110 (1995), is no longer controlling when determining whether a video poker machine is a legal machine as defined in this section. In order to be exempt under present law from the definition of an illegal slot machine, the video poker machine must satisfy each of the following statutory criteria: 1. the machine must be “used for amusement;” 2. the players ability to make varying scores and receive coupons must “involve the use of skill or dexterity;” 3. in actual operation, the number of accumulated credits or replays that may be played at one time and which may award free replays or paper coupons that may be exchanged for prizes or merchandise is limited to eight; and 4. the coupons or credits that a player can accumulate in a single hand may not be exchanged for cash and may not be exchanged for merchandise having a value greater than $10.00. See opinion of Attorney General to The Honorable Billy J. Creech N.C. House of Representatives, 1997 N.C. Op. Att'y Gen. 66 (11/5/97).

§ 14-306.1. [Repealed]

Repealed by Session 2006-6, s. 3, effective July 1, 2007, and applicable to offenses committed on or after that date.

Editor’s Note.

Session-Laws 2006-6, s. 12, provides, in part: “Prosecutions for offenses committed before the effective dates in this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. If a final Order by a court of competent jurisdiction prohibits possession or operation of video gaming machines by a federally recognized Indian tribe because that activity is not allowed elsewhere in this State, this act is void.”

CASE NOTES

Constitutionality. —

G.S. 14-306.1(a)(1)(a)-(b) and G.S. 14-298 are unconstitutional under the United States Constitution; the absence of a definition of the term “warehouse,” the application of G.S. 14-298 to allow destruction of video gaming machines without adequate process, and retroactive prohibitions demonstrate the absence of a rational relationship to the legislative interest of preventing an influx of video gaming machines into North Carolina in response to a South Carolina ban on video poker. Helton v. Good, 208 F. Supp. 2d 597, 2002 U.S. Dist. LEXIS 12436 (W.D.N.C. 2002), aff'd in part and rev'd in part, 330 F.3d 242, 2003 U.S. App. LEXIS 10489 (4th Cir. 2003).

Subdivision (a)(1) of this section was rationally related to North Carolina’s legitimate government interest in the supervision of the video gaming industry; the establishment of two dates, one on which any such machine must have been in operation within the State and the other, earlier date upon which the machine must have been listed on the tax rolls rationally furthered that purpose. Helton v. Hunt, 330 F.3d 242, 2003 U.S. App. LEXIS 10489 (4th Cir.), cert. denied, 540 U.S. 967, 124 S. Ct. 436, 157 L. Ed. 2d 312, 2003 U.S. LEXIS 7735 (2003).

§ 14-306.1A. Types of machines and devices prohibited by law; penalties.

  1. Ban on Machines. —  It shall be unlawful for any person to operate, allow to be operated, place into operation, or keep in that person’s possession for the purpose of operation any video gaming machine as defined in subsection (b) of this section, except for the exemption for a federally recognized Indian tribe under subsection (e) of this section for whom it shall be lawful to operate and possess machines as listed in subsection (b) of this section if conducted in accordance with an approved Class III Tribal-State Compact applicable to that tribe, as provided in G.S. 147-12(14) and G.S. 71A-8 .
  2. Definitions. —  As used in this section, a video gaming machine means a slot machine as defined in G.S. 14-306(a) and other forms of electrical, mechanical, or computer games such as, by way of illustration and not exclusion:
    1. A video poker game or any other kind of video playing card game.
    2. A video bingo game.
    3. A video craps game.
    4. A video keno game.
    5. A video lotto game.
    6. Eight liner.
    7. Pot-of-gold.
    8. A video game based on or involving the random or chance matching of different pictures, words, numbers, or symbols not dependent on the skill or dexterity of the player.
    9. Any other video game not dependent on skill or dexterity that is played while revealing a prize as the result of an entry into a sweepstakes.For the purpose of this section, a video gaming machine is a video machine which requires deposit of any coin or token, or use of any credit card, debit card, prepaid card, or any other method that requires payment, whether directly into the video gaming machine or resulting in remote activation, to activate play of any of the games listed in this subsection.For the purpose of this section, a video gaming machine includes those that are within the scope of the exclusion provided in G.S. 14-306(b)(2) unless conducted in accordance with an approved Class III Tribal-State Compact applicable to that tribe as provided in G.S. 147-12(14) and G.S. 71A-8 . For the purpose of this section, a video gaming machine does not include those that are within the scope of the exclusion provided in G.S. 14-306(b)(1).
  3. Exemption for Certain Machines. —  This section shall not apply to:
    1. Assemblers, repairers, manufacturers, sellers, lessors, or transporters of video gaming machines who assemble, repair, manufacture, sell, lease, or transport them for use out-of-state, or
    2. Assemblers, repairers, manufacturers, sellers, lessors, or transporters of video gaming machines who assemble, repair, manufacture, sell, or lease video gaming machines for use only by a federally recognized Indian tribe if such machines may be lawfully used on Indian land under the Indian Gaming Regulatory Act.To qualify for an exemption under this subsection, the machines must be disabled and not operable, unless the machines are located on Indian land where they may be lawfully operated under a Tribal-State Compact.
  4. Ban on Warehousing. —  It is unlawful to warehouse any video gaming machine except in conjunction with the activities permitted under subsection (c) of this section.
  5. Repealed by Session Laws 2012-6, s. 3, effective June 6, 2012.
  6. Machines described in G.S. 14-306(b)(1) are excluded from this section.

History. 2006-6, s. 4; 2006-259, s. 6; 2010-103, s. 4; 2012-6, s. 3.

Cross References.

As to Class III gaming on Indian lands, see G.S. 14-292.2 .

Editor’s Note.

Session Laws 2006-6, s. 12, made this section effective July 1, 2007, and applicable to offenses committed on or after that date.

Session Laws 2006-6, s. 12, provides, in part: “Prosecutions for offenses committed before the effective dates in this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. If a final Order by a court of competent jurisdiction prohibits possession or operation of video gaming machines by a federally recognized Indian tribe because that activity is not allowed elsewhere in this State, this act is void.”

Session Laws 2010-103, provides in its preamble: “Whereas, the 1791 General Assembly determined that ‘all public gaming-tables are destructive of the morality of the inhabitants of this State, and tend greatly to the encouragement of vice and dissipation’ (Law of 1791, Chapter 5); and

“Whereas, the State of North Carolina has continuously prohibited public gaming in North Carolina since 1791; and

“Whereas, the State of North Carolina specifically prohibited the use of slot machines in 1937; and

“Whereas, the State of North Carolina specifically prohibited the use of video poker machines in 2000 and again in 2006; and

“Whereas, the State of North Carolina has previously determined that such purpose should be carried out to prevent the operation of bingo by professionals for profit, prevent commercialized gambling, prevent the disguise of bingo and other game forms or promotional schemes, and prevent participation by criminal and other undesirable elements; and

“Whereas, any federally recognized Indian tribe may conduct such video poker games in accordance with an approved Class III Tribal-State Gaming Compact applicable to that tribe as provided in G.S. 147-12(14) and G.S. 71A-8 ; and

“Whereas, the State of North Carolina has previously determined that no video poker machine may be utilized for play under Chapter 18C of the General Statutes; and

“Whereas, since 2006, companies have developed electronic machines and devices to gamble through pretextual sweepstakes relationships with Internet service, telephone cards, and office supplies, among other products; and

“Whereas, companies using electronic machines and devices for sweepstakes have sought, and received, declaratory relief from the courts; and

“Whereas, such electronic sweepstakes systems utilizing video poker machines and other similar simulated game play create the same encouragement of vice and dissipation as other forms of gambling, in particular video poker, by encouraging repeated play, even when allegedly used as a marketing technique; and

“ ‘Whereas, it hath appeared to this General Assembly that the before recited acts hath not that good effect which was intended’ (Laws of 1799, Chapter 12); Now, therefore,”

Session Laws 2010-103, s. 5, provides: “Nothing in this act shall be construed to make lawful any machine or device that is unlawful under any other provision of law. Prosecutions for offenses committed before the effective date of this act [December 1, 2010] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2006-259, s. 6, effective August 23, 2006, added subsection (f).

Session Laws 2010-103, s. 4, effective December 1, 2010, and applicable to offenses committed on or after that date, in subsection (b), in the introductory paragraph, inserted “and not exclusion,” added subdivision (b)(9), and in the next-to-last paragraph, inserted “prepaid card” and “whether directly into the video gaming machine or resulting in remote activation.”

Session Laws 2012-6, s. 3, deleted subsection (e), which pertained to the exemption for activities under the Indian Gaming Regulatory Act.

CASE NOTES

Police Power. —

General Assembly has prohibited certain forms of gambling, including certain video games which offers prizes, and such is within the police power of that body; it is not for the courts to legalize gambling video games but rather is within the province of the General Assembly to make that decision. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

State Law Does Not Violate Indian Gaming Regulatory Act. —

Trial court erred in concluding that the Indian Gaming Regulatory Act, 25 U.S.C.S. §§ 2701 through 2721, precluded North Carolina from granting the Eastern Band of Cherokee Indians of North Carolina exclusive Class III gaming rights because State law providing the Tribe with exclusive gaming rights did not violate Indian Gaming Regulatory Act since the General Assembly expressed the public policy of the State through G.S. 71A-8 , which explicitly authorized Indian gaming in accordance with IGRA, and G.S. 14-306.1 A, which criminalized Class III gaming except for the Tribe’s enterprises; 2006 N.C. Sess. Laws 6, which legalizes the Class III gaming rights of the Eastern Band of Cherokee Indians of North Carolina, satisfies the requirement of the Indian Gaming Regulatory Act, 25 U.S.C.S. § 2710(d)(1)(B), that North Carolina be a state that permits such gaming for any purpose by any person, organization, or entity. McCracken & Amick, Inc. v. Perdue, 201 N.C. App. 480, 687 S.E.2d 690, 2009 N.C. App. LEXIS 2330 (2009).

Operation of a limited liability company’s dexterity game, by itself, did not violate the statute, as a matter of law, because the game was one of skill; though patrons could win money playing the dexterity game, the outcome of the game was dependent primarily on the patrons’ ability to react in a timely fashion. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Even analyzing a reward game and a dexterity game as a single game the element of chance overrode any element of dexterity because chance determined whether a patron would have the opportunity to use dexterity to win any money. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Kiosks were not Gambling Devices. —

In a case in which plaintiffs claimed that certain kiosks and a marketing system were not prohibited gambling, lottery or gaming products, sovereign immunity did not bar plaintiffs’ claim for injunctive relief, and the trial court properly exercised jurisdiction. Sandhill Amusements, Inc. v. Sheriff of Onslow County, 236 N.C. App. 340, 762 S.E.2d 666, 2014 N.C. App. LEXIS 982 (2014), rev'd, 368 N.C. 91 , 773 S.E.2d 55, 2015 N.C. LEXIS 441 (2015).

§ 14-306.2. Violation of G.S. 14-306.1A a violation of the ABC laws.

Violation of G.S. 14-306.1 A is a violation of the gambling statutes for the purposes of G.S. 18B-1005(a)(3).

History. 2000-151, s. 2; 2006-6, s. 5.

Editor’s Note.

Session Laws 2006-6, s. 12, made the amendment to this section by Session Laws 2006-6, s. 5, applicable to offenses committed on or after July 1, 2007, and provided: “Prosecutions for offenses committed before the effective dates in this act [Section 5 of Session Laws 2006-6 became effective July 1, 2007] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. If a final Order by a court of competent jurisdiction prohibits possession or operation of video gaming machines by a federally recognized Indian tribe because that activity is not allowed elsewhere in this State, this act is void.”

Effect of Amendments.

Session Laws 2006-6, s. 5, effective July 1, 2007, and applicable to offenses committed on or after that date, substituted “G.S. 14-306.1A” for “G.S. 14-306.1.”

§ 14-306.3. Certain game promotions unlawful.

  1. It is unlawful to promote, operate, or conduct a server-based electronic game promotion.
  2. It is unlawful for any person to possess any game terminal with a display that simulates a game ordinarily played on a slot machine regulated under G.S. 14-306 or a video gaming machine regulated under G.S. 14-306.1 A for the purpose of promoting, operating, or conducting a server-based electronic game promotion.
  3. As used in this section, “server-based electronic game promotion” means a system that meets all of the following criteria:
    1. A database contains a pool of entries with each entry associated with a prize value.
    2. Participants purchase, or otherwise obtain by any means, a prepaid card.
    3. With each prepaid card purchased or obtained, the participant also obtains one or more entries.
    4. Entries may be revealed in any of the following ways:
      1. At a point-of-sale terminal at the time of purchase or later.
      2. At a game terminal with a display that simulates a game ordinarily played on a slot machine regulated under G.S. 14-306 or a video gaming machine regulated under G.S. 14-306.1 A.
  4. Upon conviction or plea of guilty, all of the following held by the person shall be automatically revoked:
    1. A permit issued under Chapter 18B of the General Statutes.
    2. A contract to sell tickets or shares under Article 5 of Chapter 18C of the General Statutes.
  5. Nothing in this section shall apply to the form of Class III gaming legally conducted on Indian lands which are held in trust by the United States government for and on behalf of federally recognized Indian tribes if conducted in accordance with an approved Class III Tribal-State Gaming Compact applicable to that tribe as provided in G.S. 147-12(14) and G.S. 71A-8 .

History. 2008-122, s. 1.

Cross References.

As to Class III gaming on Indian lands, see G.S. 14-292.2 .

As to Indian Gaming Education Revenue Fund, see G.S. 143C-9-7 .

Legal Periodicals.

For article, “End of the Chase: Using North Carolina as a Guide for Ending Other States’ Video Sweepstakes Legislative Merry-Go-Round in the Wake of Hest Technologies v. North Carolina,” see 36 N.C. Cent. L. Rev. 41 (2013).

§ 14-306.4. Electronic machines and devices for sweepstakes prohibited.

  1. Definitions. —  For the purposes of this section, the following definitions apply:
    1. “Electronic machine or device” means a mechanically, electrically or electronically operated machine or device, that is owned, leased or otherwise possessed by a sweepstakes sponsor or promoter, or any of the sweepstakes sponsor’s or promoter’s partners, affiliates, subsidiaries or contractors, that is intended to be used by a sweepstakes entrant, that uses energy, and that is capable of displaying information on a screen or other mechanism. This section is applicable to an electronic machine or device whether or not:
      1. It is server-based.
      2. It uses a simulated game terminal as a representation of the prizes associated with the results of the sweepstakes entries.
      3. It utilizes software such that the simulated game influences or determines the winning or value of the prize.
      4. It selects prizes from a predetermined finite pool of entries.
      5. It utilizes a mechanism that reveals the content of a predetermined sweepstakes entry.
      6. It predetermines the prize results and stores those results for delivery at the time the sweepstakes entry results are revealed.
      7. It utilizes software to create a game result.
      8. It requires deposit of any money, coin, or token, or the use of any credit card, debit card, prepaid card, or any other method of payment to activate the electronic machine or device.
      9. It requires direct payment into the electronic machine or device, or remote activation of the electronic machine or device.
      10. It requires purchase of a related product.
      11. The related product, if any, has legitimate value.
      12. It reveals the prize incrementally, even though it may not influence if a prize is awarded or the value of any prize awarded.
      13. It determines and associates the prize with an entry or entries at the time the sweepstakes is entered.
      14. It is a slot machine or other form of electrical, mechanical, or computer game.
    2. “Enter” or “entry” means the act or process by which a person becomes eligible to receive any prize offered in a sweepstakes.
    3. “Entertaining display” means visual information, capable of being seen by a sweepstakes entrant, that takes the form of actual game play, or simulated game play, such as, by way of illustration and not exclusion:
      1. A video poker game or any other kind of video playing card game.
      2. A video bingo game.
      3. A video craps game.
      4. A video keno game.
      5. A video lotto game.
      6. Eight liner.
      7. Pot-of-gold.
      8. A video game based on or involving the random or chance matching of different pictures, words, numbers, or symbols not dependent on the skill or dexterity of the player.
      9. Any other video game not dependent on skill or dexterity that is played while revealing a prize as the result of an entry into a sweepstakes.
    4. “Prize” means any gift, award, gratuity, good, service, credit, or anything else of value, which may be transferred to a person, whether possession of the prize is actually transferred, or placed on an account or other record as evidence of the intent to transfer the prize.
    5. “Sweepstakes” means any game, advertising scheme or plan, or other promotion, which, with or without payment of any consideration, a person may enter to win or become eligible to receive any prize, the determination of which is based upon chance.
  2. Notwithstanding any other provision of this Part, it shall be unlawful for any person to operate, or place into operation, an electronic machine or device to do either of the following:
    1. Conduct a sweepstakes through the use of an entertaining display, including the entry process or the reveal of a prize.
    2. Promote a sweepstakes that is conducted through the use of an entertaining display, including the entry process or the reveal of a prize.
  3. It is the intent of this section to prohibit any mechanism that seeks to avoid application of this section through the use of any subterfuge or pretense whatsoever.
  4. Nothing in this section shall be construed to make illegal any activity which is lawfully conducted on Indian lands pursuant to, and in accordance with, an approved Tribal-State Gaming Compact applicable to that Tribe as provided in G.S. 147-12(14) and G.S. 71A-8 .
  5. Each violation of this section shall be considered a separate offense.
  6. Any person who violates this section is guilty of a Class 1 misdemeanor for the first offense and is guilty of a Class H felony for a second offense and a Class G felony for a third or subsequent offense.

History. 2010-103, s. 1.

Cross References.

As to Class III gaming on Indian lands, see G.S. 14-292.2 .

As to Indian Gaming Education Revenue Fund, see G.S. 143C-9-7 .

Editor’s Note.

Session Laws 2010-103, provides in its preamble: “Whereas, the 1791 General Assembly determined that ‘all public gaming-tables are destructive of the morality of the inhabitants of this State, and tend greatly to the encouragement of vice and dissipation’ (Law of 1791, Chapter 5); and

“Whereas, the State of North Carolina has continuously prohibited public gaming in North Carolina since 1791; and

“Whereas, the State of North Carolina specifically prohibited the use of slot machines in 1937; and

“Whereas, the State of North Carolina specifically prohibited the use of video poker machines in 2000 and again in 2006; and

“Whereas, the State of North Carolina has previously determined that such purpose should be carried out to prevent the operation of bingo by professionals for profit, prevent commercialized gambling, prevent the disguise of bingo and other game forms or promotional schemes, and prevent participation by criminal and other undesirable elements; and

“Whereas, any federally recognized Indian tribe may conduct such video poker games in accordance with an approved Class III Tribal-State Gaming Compact applicable to that tribe as provided in G.S. 147-12(14) and G.S. 71A-8 ; and

“Whereas, the State of North Carolina has previously determined that no video poker machine may be utilized for play under Chapter 18C of the General Statutes; and

“Whereas, since 2006, companies have developed electronic machines and devices to gamble through pretextual sweepstakes relationships with Internet service, telephone cards, and office supplies, among other products; and

“Whereas, companies using electronic machines and devices for sweepstakes have sought, and received, declaratory relief from the courts; and

“Whereas, such electronic sweepstakes systems utilizing video poker machines and other similar simulated game play create the same encouragement of vice and dissipation as other forms of gambling, in particular video poker, by encouraging repeated play, even when allegedly used as a marketing technique; and

“ ‘Whereas, it hath appeared to this General Assembly that the before recited acts hath not that good effect which was intended’ (Laws of 1799, Chapter 12); Now, therefore,”

Session Laws 2010-103, s. 5, provides: “Nothing in this act shall be construed to make lawful any machine or device that is unlawful under any other provision of law. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act [December 1, 2010], and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2010-103, s. 6, made this section effective December 1, 2010, and applicable to offenses committed on or after that date.

Legal Periodicals.

For article, “End of the Chase: Using North Carolina as a Guide for Ending Other States’ Video Sweepstakes Legislative Merry-Go-Round in the Wake of Hest Technologies v. North Carolina,” see 36 N.C. Cent. L. Rev. 41 (2013).

CASE NOTES

Constitutionality. —

G.S. 14-306.4 was not overbroad and did not violate the First Amendment, U.S. Const. amend. I, and N.C. Const. Art. I, § 14 since it was concerned only with the attachment of the announcement of a sweepstakes result to a game, which created the functional equivalent of a gambling environment and encouraged the ills the North Carolina legislature sought to remedy; the announcement of the winner was not protected speech as it was an incidental part of the non-communicative activity of conducting the sweepstakes. Hest Techs., Inc. v. State Ex Rel. Perdue, 366 N.C. 289 , 749 S.E.2d 429, 2012 N.C. LEXIS 1002 (2012), cert. denied, 571 U.S. 822, 134 S. Ct. 99, 187 L. Ed. 2d 34, 2013 U.S. LEXIS 5319 (2013).

Sweepstakes Explained. —

Regardless of whether it is dependent on skill or dexterity, a sweepstakes falls within the entertaining display prohibition simply if it is visual information, capable of being seen by a sweepstakes entrant, that takes the form of actual game play, or simulated game play. Gift Surplus, LLC v. State ex rel. Cooper, 268 N.C. App. 1, 833 S.E.2d 703, 2019 N.C. App. LEXIS 844 (2019), dismissed, 838 S.E.2d 179, 2020 N.C. LEXIS 113 (N.C. 2020), modified, aff'd, 380 N.C. 1 , 868 S.E.2d 20, 2022- NCSC-1, 2022 N.C. LEXIS 160 (2022).

Police Power. —

General Assembly has prohibited certain forms of gambling, including certain video games which offers prizes, and such is within the police power of that body; it is not for the courts to legalize gambling video games but rather is within the province of the General Assembly to make that decision. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Court did not err by determining that plaintiff’s gaming enterprise constituted an unlawful sweepstakes because luck was so inherent in the nature of plaintiff’s games that chance necessarily predominated over the exercise of skill or dexterity so that plaintiff’s rewards program should be classified as a game of chance rather than a game of dexterity or skill. Crazie Overstock Promotions, LLC v. State, 2021-NCSC-57, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Gaming Machines In Violation of Statute. —

Limited liability company operated electronic gaming machines in violation of the statute, as a matter of law, because its reward game offered patrons the opportunity to win a “prize” in a game of chance; the outcome of the reward game was based on chance, as the game involved a simulated slot machine. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Operation of a limited liability company’s dexterity game, by itself, did not violate the statute, as a matter of law, because the game was one of skill; though patrons could win money playing the dexterity game, the outcome of the game was dependent primarily on the patrons’ ability to react in a timely fashion. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Even analyzing a reward game and a dexterity game as a single game the element of chance overrode any element of dexterity because chance determined whether a patron would have the opportunity to use dexterity to win any money. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Violation Using Standalone Kiosks Found. —

Trial court erred in concluding plaintiffs’ sweepstakes did not violate G.S. 14-306.4 because the sweepstakes in question were run through the use of an entertaining display. The sweepstakes in question were run through standalone kiosks that undisputedly displayed visual information capable of being seen by a sweepstakes entrant. Gift Surplus, LLC v. State ex rel. Cooper, 268 N.C. App. 1, 833 S.E.2d 703, 2019 N.C. App. LEXIS 844 (2019), dismissed, 838 S.E.2d 179, 2020 N.C. LEXIS 113 (N.C. 2020), modified, aff'd, 380 N.C. 1 , 868 S.E.2d 20, 2022- NCSC-1, 2022 N.C. LEXIS 160 (2022).

Games Prohibited. —

Lower court erred in concluding that the non-exhaustiveness of N.C. Gen. Stat. § 14-306.4(a)(3)’s list meant that the only limitation on other games being included was that they had to be video games. Rather, N.C. Gen. Stat. § 14-306.4 prohibited sweepstakes conducted through the use of an entertaining display, but only when the electronic display took the form of actual game play, or simulated game play where the game in question was not dependent on skill or dexterity. Gift Surplus, LLC v. State ex rel. Cooper, 2022-NCSC-1, 380 N.C. 1 , 868 S.E.2d 20, 2022- NCSC-1, 2022 N.C. LEXIS 160 (2022).

Applying the predominant-factor test, the video game was prohibited per N.C. Gen. Stat. § 14-306.4 as chance determined the prizes for which players could play, and any skill and dexterity was de minimis. Gift Surplus, LLC v. State ex rel. Cooper, 2022-NCSC-1, 380 N.C. 1 , 868 S.E.2d 20, 2022- NCSC-1, 2022 N.C. LEXIS 160 (2022).

Injunctive Relief. —

In a case in which plaintiffs claimed that certain kiosks and a marketing system were not prohibited gambling, lottery or gaming products, sovereign immunity did not bar plaintiffs’ claim for injunctive relief, and the trial court properly exercised jurisdiction. Sandhill Amusements, Inc. v. Sheriff of Onslow County, 236 N.C. App. 340, 762 S.E.2d 666, 2014 N.C. App. LEXIS 982 (2014), rev'd, 368 N.C. 91 , 773 S.E.2d 55, 2015 N.C. LEXIS 441 (2015).

Summary Judgment. —

State was not entitled to summary judgment as to whether the operation of machines violated the statute, as there was an issue of fact regarding whether patrons were required to pay consideration for the opportunity to play the machines; it was unclear whether patrons are required to wager anything of value. Crazie Overstock Promotions, LLC v. State, 266 N.C. App. 1, 830 S.E.2d 871, 2019 N.C. App. LEXIS 546 (2019), modified in part, aff'd, 377 N.C. 391 , 858 S.E.2d 581, 2021- NCSC-57, 2021 N.C. LEXIS 537 (2021).

Substantial Evidence. —

Substantial evidence supported convictions under this section because defendants operated a sweepstakes wherein a prize was revealed to a patron not dependent upon the patron’s skill or dexterity in playing a video game; that a sweepstakes was conducted at the beginning of the game versus at its conclusion made no significant difference. State v. Spruill, 237 N.C. App. 383, 765 S.E.2d 84, 2014 N.C. App. LEXIS 1175 (2014).

Standard of Review. —

Whether chance or skill predominated in a given game was a mixed question of fact and law and was therefore reviewed de novo when there was no factual dispute about how a game was played. Gift Surplus, LLC v. State ex rel. Cooper, 2022-NCSC-1, 380 N.C. 1 , 868 S.E.2d 20, 2022- NCSC-1, 2022 N.C. LEXIS 160 (2022).

§ 14-307. Issuance of license prohibited.

There shall be no State, county, or municipal tax levied for the privilege of operating the machines or devices the operation of which is prohibited by G.S. 14-304 through 14-309.

History. 1937, c. 196, s. 4.

CASE NOTES

Sections 14-301 to 14-303 and G.S. 14-304 to 14-309 Are Complementary. —

Sections 14-301, 14-302 and 14-303, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by this section and G.S. 14-305 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

§ 14-308. Declared a public nuisance.

An article or apparatus maintained or kept in violation of G.S. 14-304 through 14-309 is a public nuisance.

History. 1937, c. 196, s. 5.

CASE NOTES

Sections 14-301 to 14-303 and G.S. 14-304 to 14-309 Are Complementary. —

Sections 14-301, 14-302 and 14-303, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by G.S. 14-304 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

§ 14-309. Violation made criminal.

  1. Any person who violates any provision of G.S. 14-304 through 14-309 is guilty of a Class 1 misdemeanor for the first offense, and is guilty of a Class H felony for a second offense and a Class G felony for a third or subsequent offense.
  2. Notwithstanding the provisions of subsection (a) of this section, any person violating the provisions of G.S. 14-306.1 A involving the operation of five or more machines prohibited by that section is guilty of a Class G felony.
  3. Notwithstanding the provisions of subsection (a) of this section, any person violating the provisions of G.S. 14-306.3(b) involving the possession of five or more machines prohibited by that subsection is guilty of a Class G felony.

History. 1937, c. 196, s. 6; 1993, c. 366, s. 3, c. 539, s. 211; 1994, Ex. Sess., c. 14, s. 9(a), (b); 2000-151, s. 3; 2006-6, s. 11; 2008-122, s. 3.

Editor’s Note.

Session Laws 2006-6, s. 12, made the amendment to this section by Session Laws 2006-6, s. 11, applicable to offenses committed on or after July 1, 2007, and provided: “Prosecutions for offenses committed before the effective dates [Section 11 of Session Laws 2006-6 became effective July 1, 2007] in this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions. If a final Order by a court of competent jurisdiction prohibits possession or operation of video gaming machines by a federally recognized Indian tribe because that activity is not allowed elsewhere in this State, this act is void.”

Effect of Amendments.

Session Laws 2006-6, s. 11, effective July 1, 2007, and applicable to offenses committed on or after that date, in subsection (a), substituted “Class H felony” for “Class I felony” and “Class G felony” for “Class H felony”; and substituted “G.S. 14-306.1A” for “G.S. 14-306.1” in subsection (b).

Session Laws 2008-122, s. 3, effective December 1, 2008, and applicable to offenses committed on or after that date, added subsection (c).

CASE NOTES

G.S. 14-301 to 14-303 and G.S. 14-304 to 14-309 Are Complementary. —

G.S. 14-301 , 14-302 and 14-303, proscribing the operation and possession of slot machines of the type therein defined, are not repealed by G.S. 14-304 through 14-309, proscribing ownership, sale, lease and transportation of such slot machines, since the two statutes are not repugnant, but are complementary. State v. Calcutt, 219 N.C. 545 , 15 S.E.2d 9, 1941 N.C. LEXIS 105 (1941).

§ 14-309.1. Defense to possession; antique slot machines.

  1. In any prosecution for possession of a slot machine or device as defined in G.S. 14-306 , it is a defense that the slot machine was not intended to be used in the operation or promotion of unlawful gambling activity or enterprise and that the slot machine is an antique. For purposes of this section a slot machine manufactured 25 years ago or earlier is conclusively presumed to be an antique.
  2. When a defendant raises the defense provided in subsection (a), any slot machine seized from the defendant shall not be destroyed or otherwise altered until a final court determination is rendered. If the court determines that the defense has been proved the slot machine shall be returned immediately to the defendant.

History. 1979, 2nd Sess., c. 1090.

§ 14-309.2. [Repealed]

Repealed by Session Laws 2005-276, s. 31.1(v2), effective July 1, 2005.

§§ 14-309.3, 14-309.4.

Reserved for future codification purposes.

Part 2. Bingo and Raffles.

§ 14-309.5. Bingo.

  1. The purpose of the conduct of bingo is to insure a maximum availability of the net proceeds exclusively for application to the charitable, nonprofit causes and undertakings specified herein; that the only justification for this Part is to support such charitable, nonprofit causes; and such purpose should be carried out to prevent the operation of bingo by professionals for profit, prevent commercialized gambling, prevent the disguise of bingo and other game forms or promotional schemes, prevent participation by criminal and other undesirable elements, and prevent the diversion of funds for the purpose herein authorized.
  2. It is lawful for an exempt organization to conduct bingo games in accordance with the provisions of this Part. Any licensed exempt organization who conducts a bingo game in violation of any provision of this Part shall be guilty of a Class 2 misdemeanor. Upon conviction such person shall not conduct a bingo game for a period of one year. It is lawful to participate in a bingo game conducted pursuant to this Part. It shall be a Class I felony for any person: (i) to operate a bingo game without a license; (ii) to operate a bingo game while license is revoked or suspended; (iii) to willfully misuse or misapply any moneys received in connection with any bingo game; or (iv) to contract with or provide consulting services to any licensee. It shall not constitute a violation of any State law to advertise a bingo game conducted in accordance with this Part.

History. 1983, c. 896, s. 3; 1983 (Reg. Sess., 1984), c. 1107, ss. 1-4; 1989 (Reg. Sess., 1990), c. 826, s. 1; 1993, c. 539, ss. 212, 1231; 1994, Ex. Sess., c. 24, s. 14(c).

Editor’s Note.

Session Laws 1983, c. 896, which enacted this Part, in s. 5.1 provided: “Sec. 5.1. Should the Supreme Court of North Carolina or a federal court having jurisdiction over North Carolina find and determine in any manner, whether on the merits or by denial of petition for discretionary review, that the General Assembly may not constitutionally allow ‘exempt organizations’ as defined herein to conduct bingo or raffles, while denying that privilege to all other persons, then this act and G.S. 14-292.1 are repealed in their entirety, and no person may conduct bingo or raffles under any circumstances not permitted by the gambling laws of North Carolina.”

CASE NOTES

Constitutionality. —

With the exception of the provision relating to homeowner and property owner associations (now found in G.S. 14-309.6(1)), G.S. 14-289 and 14-290 and former G.S. 14-292 (now replaced by G.S. 14-309.5 et seq.) do not violate the due process or equal protection provisions of either the North Carolina Constitution or the United States Constitution. State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883, 1983 N.C. App. LEXIS 3481 (1983), aff'd, 311 N.C. 397 , 316 S.E.2d 870, 1984 N.C. LEXIS 1745 (1984).

Plaintiff could proceed by civil action for an injunction against enforcement of this section, a criminal statute, where plaintiff would otherwise not be able to operate bingo games, which had provided it with income, unless the persons operating the games were willing to subject themselves to at least one prosecution for a felony, and the superior court had jurisdiction to hear such case. Durham Council of Blind v. Edmisten, 79 N.C. App. 156, 339 S.E.2d 84, 1986 N.C. App. LEXIS 1973 (1986).

Bingo as Part of Fundraising Scheme. —

Where corporate solicitor operated bingo games in connection with their promotion of the sale of combs and candies, the element of bingo in corporate solicitor’s fundraising scheme brought all activity connected to the operation of that game within the ambit of the bingo statutes, even if corporate solicitor sale of combs and candies fit within Chapter 131C’s definition of “charitable sales promotion.” Animal Protection Soc'y of Durham, Inc. v. State, 95 N.C. App. 258, 382 S.E.2d 801, 1989 N.C. App. LEXIS 757 (1989).

§ 14-309.6. Definitions.

For purposes of this Part, the term:

  1. “Exempt organization” means an organization that has been in continuous existence in the county of operation of the bingo game for at least one year and that is exempt from taxation under section 501(c)(3), 501(c)(4), 501(c)(8), 501(c)(10), 501(c)(19), or 501(d) of the Internal Revenue Code and is exempt under similar provisions of the General Statutes as a bona fide nonprofit charitable, civic, religious, fraternal, patriotic or veterans’ organization or as a nonprofit volunteer fire department, or as a nonprofit volunteer rescue squad or a bona fide homeowners’ or property owners’ association. (If the organization has local branches or chapters, the term “exempt organization” means the local branch or chapter operating the bingo game);
  2. “Bingo game” means a specific game of chance played with individual cards having numbered squares ranging from one to 75, in which prizes are awarded on the basis of designated numbers on such cards conforming to a predetermined pattern of numbers (but shall not include “instant bingo” which is a game of chance played by the selection of one or more prepackaged cards, with winners determined by the appearance of a preselected designation on the card);
  3. Repealed by Session Laws 1983 (Regular Session 1984), c. 1107, s. 5.
  4. “Local law-enforcement agency” means for any bingo game conducted outside the corporate limits of a municipality or inside the corporate limits of a municipality having no municipal police force:
    1. The county police force; or
    2. The county sheriff’s office in a county with no county police force;
  5. “Local law-enforcement agency” means the municipal police for any bingo game conducted within the corporate limits of a municipality having a police force;
  6. “Beach bingo games” means bingo games which have prizes of ten dollars ($10.00) or less or merchandise that is not redeemable for cash and that has a value of ten dollars ($10.00) or less; and
  7. “Licensed exempt organization” means an exempt organization which possesses a currently valid license.
  8. “Nonprofit organization” means an organization or association recognized by the Department of Revenue as tax exempt pursuant to G.S. 105-130.11(a) , or any bona fide branch, chapter, or affiliate of that organization.

History. 1983, c. 896, s. 3; 1983 (Reg. Sess., 1984), c. 1107, ss. 2, 5; 2018-100, s. 5(a).

Editor’s Note.

Sessions Laws 2018-100, s. 8(a), is a severability clause.

Effect of Amendments.

Session Laws 2018-100, s. 5(a), effective October 1, 2018, added subdivision (8).

CASE NOTES

Constitutionality. —

With the exception of the provision relating to homeowner and property owner associations (now found in subdivision (1) of this section), G.S. 14-289 and 14-290 and former G.S. 14-292.1 (now replaced by G.S. 14-309.5 et seq.) do not violate the due process or equal protection provisions of either the North Carolina Constitution or the United States Constitution. State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883, 1983 N.C. App. LEXIS 3481 (1983), aff'd, 311 N.C. 397 , 316 S.E.2d 870, 1984 N.C. LEXIS 1745 (1984).

The statutory provision permitting homeowner or property owner associations to conduct bingo games or raffles bears no rational relation to the purposes of the gambling prohibitions or the charitable exemption, and has the effect of treating similarly situated persons and groups differently, without a rational basis for such differential treatment. Thus, the provision is inconsistent with the constitutional guaranty of equal protection contained in N.C. Const., Art. I, § 19 and with N.C. Const., Art. I, § 32, which provides that no person or set of persons is entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services. State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883, 1983 N.C. App. LEXIS 3481 (1983), aff'd, 311 N.C. 397 , 316 S.E.2d 870, 1984 N.C. LEXIS 1745 (1984) (decided under former G.S. 14-292.1 ).

The portion of former G.S. 14-292.1(d) (see now G.S. 14-309.11(a)) requiring exempt organization facilities financed by bingo or raffle proceeds to be made available for use by the general public “from time to time” is simply insufficient to prevent the grant of a special gambling privilege to homeowner or property owner associations from violating the exclusive emoluments clause of the North Carolina Constitution. State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883, 1983 N.C. App. LEXIS 3481 (1983), aff'd, 311 N.C. 397 , 316 S.E.2d 870, 1984 N.C. LEXIS 1745 (1984).

Activities Within Purview of Statutes. —

Any activity which meets the Part 2, Article 37, definition of bingo in this section is within the purview of the bingo statutes, whether or not consideration is paid to play the game. Animal Protection Soc'y of Durham, Inc. v. State, 95 N.C. App. 258, 382 S.E.2d 801, 1989 N.C. App. LEXIS 757 (1989).

Consideration Not Condition Precedent to Violation. —

Violation of Part 1 of Article 37 is not a prerequisite to violation of Part 2 of this Article, and payment of consideration to play bingo is not a condition precedent to violation of Part 2. Animal Protection Soc'y of Durham, Inc. v. State, 95 N.C. App. 258, 382 S.E.2d 801, 1989 N.C. App. LEXIS 757 (1989).

§ 14-309.7. Licensing procedure.

  1. An exempt organization shall not operate a bingo game at a location without a license. Application for a bingo license shall be made to the Alcohol Law Enforcement Division of the Department of Public Safety on a form prescribed by the Division. The Division shall charge an annual application fee of two hundred dollars ($200.00) to defray the cost of issuing bingo licenses and handling bingo audit reports. The fees collected shall be deposited in the General Fund of the State. The license shall expire one year after issuance and may be renewed annually if the applicant pays the application fee and files an audit with the Division pursuant to G.S. 14-309.11 . A copy of the application and license shall be furnished to the local law-enforcement agency in the county or municipality in which the licensee intends to operate before bingo is conducted by the licensee.
  2. Each application and renewal application shall contain the following information:
    1. The name and address of the applicant and if the applicant is a corporation, association, or other similar legal entity, the name and home address of each of the officers of the organization as well as the name and address of the directors, or other persons similarly situated, of the organization.
    2. The name and home address of each member of the special committee described in G.S. 14-309.10 .
    3. A copy of the application for recognition of exemptions and a determination letter from the Internal Revenue Service and the Department of Revenue that indicates the applicant is an exempt organization and stating the section under which that exemption is granted. If the applicant is a State or local branch, lodge, post, or chapter of a national organization, a copy of the determination letter of the national organization satisfies this requirement.
    4. The location at which the applicant will conduct the bingo games. If the premises are leased, a copy of the lease or rental agreement.
  3. In order for an exempt organization to have a member familiar with the operation of bingo present on the premises at all times when bingo is being played and for this member to be responsible for the receiving, reporting, and depositing of all revenues received, the exempt organization may pay one member for conducting a bingo game. The pay shall be on an hourly basis only for the time bingo is actually being played and shall not exceed one and one-half times the existing minimum wage in North Carolina. The member paid under this subsection shall be a member in good standing of the exempt organization for at least one year and shall not be the lessor or an employee or agent of the lessor. No other person shall be compensated for conducting a bingo game from funds derived from any activities occurring in, or simultaneously with, the playing of bingo, including funds derived from concessions. An exempt organization shall not contract with any person for the purpose of conducting a bingo game.

    (c1) Except as provided in subsection (e) of this section, an exempt organization may hold a bingo game only in or on property owned, either legally or equitably, or leased, but not subleased, by the organization from the owner or bona fide property management agent. The buildings shall be permanent with approved plumbing for bathrooms and shall not be movable or temporary such as a tent or lean-to. The total monthly payment for leased premises shall not exceed one and one-quarter percent (1 1/4%) of the total assessed ad valorem tax value of the portion of the building actually used for the bingo games and the land on which the building is located; the land shall not exceed two acres. The lease shall be for all activities conducted on the leased premises, including the playing of bingo for a period of not less than one year, and the leased premises shall be actually occupied and used by that organization on a regular basis for purposes other than bingo for at least six months before the first game. All equipment used by the exempt organization in conducting the bingo game shall be owned by the organization. Unless the exempt organization leases the property in accordance with this subsection, an exempt organization may conduct a bingo game only in or on property that is exempt from property taxes levied under Subchapter II of Chapter 105 of the General Statutes, or that is classified and not subject to any property taxes levied under Subchapter II of Chapter 105 of the General Statutes. It is unlawful for any person to operate beach bingo games at a location that is being used by any licensed exempt organization for the purpose of conducting bingo games.

  4. Conduct of a bingo game or raffle in accordance with this Part does not operate to defeat an exemption or classification under Subchapter II of Chapter 105 of the General Statutes.
  5. An exempt organization that wants to conduct only an annual or semiannual bingo game may apply to the Alcohol Law Enforcement Division of the Department of Public Safety for a limited occasion permit. The Division may require any information necessary to determine that the bingo game is conducted in accordance with this Part. The Division shall not require more information for a limited occasion permit than it requires for a license under this section. The application shall be made to the Division on prescribed forms at least 30 days prior to the scheduled date of the bingo game. In lieu of the reporting requirements of G.S. 14-309.11(b), the exempt organization shall file with the Division and local law-enforcement a report on prescribed forms no later than 30 days following the bingo game for which the permit was obtained. The forms may require any information necessary to determine that the bingo game was conducted in accordance with this Part. The forms shall not require more information than specified in G.S. 14-309.11(b). Any licensed exempt organization may donate or loan its equipment or use of its premises to an exempt organization that has secured a limited occasion permit as long as the arrangement is disclosed in the limited occasion permit application and is approved by the Division. Except as provided in this subsection, all provisions of this Part apply to an exempt organization operating a bingo game under this subsection.

History. 1983, c. 896, s. 3; c. 923, s. 217; 1983 (Reg. Sess., 1984), c. 1107, ss. 2, 4, 6; 1987, c. 866, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1001, s. 1; 1997-443, s. 11A.118(a); 2002-159, ss. 3(a), 3(b); 2009-451, s. 17.6; 2011-145, s. 19.1(g); 2016-27, s. 3; 2017-102, s. 5.1(a); 2020-72, s. 1(a).

Editor’s Note.

Session Laws 1999-237, s. 11.18, provides that the Bingo Program in the Department of Health and Human Services, Division of Facility Services, and all functions, powers, duties, and obligations vested in the Department of Health and Human Services for the Bingo Program, are transferred to and vested in the Department of Public Safety by a Type I transfer, as defined in G.S. 143A-6 .

Session Laws 2016-27, s. 3, provides: “The Revisor of Statutes is directed to replace any reference to the ‘Department of Public Safety’ with the ‘State Bureau of Investigation’ wherever it appears in Part 2 of Article 37 of Chapter 14 of the General Statutes.” At the direction of the Revisor of Statutes, “State Bureau of Investigation” was substituted for “Department of Public Safety” in subsections (a) and (e).

Session Laws 2020-72, s. 1(d), made the amendment of this section by Session Laws 2020-72, s. 1(a), effective October 1, 2020, and applicable to applications submitted on or after that date.

Effect of Amendments.

Session Laws 2009-451, s. 17.6, effective September 1, 2009, substituted “two hundred dollars ($200.00)” for “one hundred dollars ($100.00)” in the second sentence of subsection (a).

Session Laws 2011-145, s. 19.1(g), effective January 1, 2012, substituted “Department of Public Safety” for “Department of Crime Control and Public Safety” throughout the section.

Session Laws 2016-27, s. 3, effective June 22, 2016, substituted “State Bureau of Investigation” for “Department of Public Safety” throughout the section.

Session Laws 2017-102, s. 5.1(a), effective July 12, 2017, substituted “Bureau” for “Department [Bureau]” in subsections (a) and (e).

Session Laws 2020-72, s. 1(a), in subsection (a), substituted “Alcohol Law Enforcement Division of the Department of Public Safety” for “State Bureau of Investigation” and “Division” for “Bureau” in the second sentence, substituted “Division” for “Bureau” in the second sentence, and substituted “issuance and may be renewed annually” for “the granting of the license. This license may be renewed yearly,”; substituted “member of the special committee described in G.S. 14-309.10 ” for “of the members of the special committee” in subdivision (b)(2); substituted “this subsection” for “this provision” in the third sentence of subsection (c); designated the second paragraph of subsection (c) as subsection (c1) and rewrote such subsection; substituted “in accordance with this Part does” for “under this Part on such property shall” in subsection (d); rewrote subsection (e); and made minor punctuation and stylistic changes throughout. For effective date and applicability, see editor’s note.

CASE NOTES

State Interest in Licensing Bingo Games. —

Conditions for licenses to operate bingo games set out in this section and G.S. 14-309.8 are reasonably related to a legitimate state interest that bingo games not be operated by full-time professionals for profit. Durham Council of Blind v. Edmisten, 79 N.C. App. 156, 339 S.E.2d 84, 1986 N.C. App. LEXIS 1973 (1986).

§ 14-309.8. Limit on sessions.

The number of sessions of bingo conducted or sponsored by an exempt organization shall be limited to two sessions per week and such sessions must not exceed a period of five hours each per session. No two sessions of bingo shall be held within a 48-hour period of time. No more than two sessions of bingo shall be operated or conducted in any one building, hall or structure during any one calendar week and if two sessions are held, they must be held by the same exempt organization. This section shall not apply to bingo games conducted at a fair or other exhibition conducted pursuant to Article 45 of Chapter 106 of the General Statutes.

History. 1983, c. 896, s. 3; c. 923, s. 217; 1983 (Reg. Sess., 1984), c. 1107, ss. 6, 7.

CASE NOTES

Constitutionality. —

In the context of the statute as a whole, the meaning of the words “session” and “sessions” is quite plain to anyone of common understanding and the statute is not unconstitutionally vague. Durham Hwy. Fire Protection Ass'n v. Baker, 82 N.C. App. 583, 347 S.E.2d 86, 1986 N.C. App. LEXIS 2510 (1986).

The 48-hour provision, under which the first organization to conduct its bingo session in a given location during that period is not subject to prosecution but the second organization is, does not violate equal protection. One purpose of the distinction in question, a laudable and proper one, is to limit gambling, an offense against public morals when not conducted as the statute specifies. Except for this or some similar limitation, licensed bingo, instead of providing brief and occasional opportunities for harmless recreation, could fill the weekends of many people to their ruinous cost in money and otherwise. Durham Hwy. Fire Protection Ass'n v. Baker, 82 N.C. App. 583, 347 S.E.2d 86, 1986 N.C. App. LEXIS 2510 (1986).

Limiting exempt organizations to one session of bingo during a 48-hour period does not unduly restrict their right to solicit charitable contributions. While soliciting contributions is certainly protected by U.S. Const., Amend. I, this statute does not impinge upon the right to solicit contributions, charitable or otherwise. The statute restricts only the conducting of bingo, which is gambling, and no one has a constitutional right to operate a gambling business. Durham Hwy. Fire Protection Ass'n v. Baker, 82 N.C. App. 583, 347 S.E.2d 86, 1986 N.C. App. LEXIS 2510 (1986).

State Interest in Licensing Bingo Games. —

Conditions for licenses to operate bingo games set out in G.S. 14-309.7 and this section are reasonably related to a legitimate state interest that bingo games not be operated by full-time professionals for profit. Durham Council of Blind v. Edmisten, 79 N.C. App. 156, 339 S.E.2d 84, 1986 N.C. App. LEXIS 1973 (1986).

A “session” of bingo, as used in the statute, means a period of time in which bingo is conducted or sponsored by a particular exempt organization in one location, and “sessions” is more than one session. Durham Hwy. Fire Protection Ass'n v. Baker, 82 N.C. App. 583, 347 S.E.2d 86, 1986 N.C. App. LEXIS 2510 (1986).

§ 14-309.9. Bingo prizes.

  1. The maximum prize in cash or merchandise that may be offered or paid for any one game of bingo is five hundred dollars ($500.00). The maximum aggregate amount of prizes, in cash and/or merchandise, that may be offered or paid at any one session of bingo is one thousand five hundred dollars ($1,500). Provided, however, that if an exempt organization holds only one session of bingo during a calendar week, the maximum aggregate amount of prizes, in cash and/or merchandise, that may be offered or paid at any one session is two thousand five hundred dollars ($2,500).
  2. Repealed by Session Laws 1983 (Regular Session 1984), c. 1107, s. 8.
  3. This section shall not apply to bingo games conducted at a fair or other exhibition conducted pursuant to Article 45 of Chapter 106 of the General Statutes.

History. 1983, c. 896, s. 3; 1983 (Reg. Sess., 1984), c. 1107, ss. 6, 8.

§ 14-309.10. Operation of bingo.

The operation of bingo games shall be the direct responsibility of, and controlled by, a special committee selected by the governing body of the exempt organization in the manner provided by the rules of the exempt organization.

History. 1983, c. 896, s. 3; 1983 (Reg. Sess., 1984), c. 1107, s. 9.

§ 14-309.11. Accounting and use of proceeds.

  1. All funds received in connection with a bingo game shall be placed in a separate bank account. No funds may be disbursed from this account except the exempt organization may expend proceeds for prizes, advertising, utilities, and the purchase of supplies and equipment used [in conducting the raffle and] in playing bingo, taxes and license fees related to bingo and the payment of compensation as authorized by G.S. 14-309.7(c) and for the purposes set forth below for the remaining proceeds. Such payments shall be made by consecutively numbered checks. Any proceeds available in the account after payment of the above expenses shall inure to the exempt organization to be used for religious, charitable, civic, scientific, testing, public safety, literary, or educational purposes or for purchasing, constructing, maintaining, operating or using equipment or land or a building or improvements thereto owned by and for the exempt organization and used for civic purposes or made available by the exempt organization for use by the general public from time to time, or to foster amateur sports competition, or for the prevention of cruelty to children or animals, provided that no proceeds shall be used or expended for social functions for the members of the exempt organization.
  2. An audit of the account required by subsection (a) of this section shall be prepared annually for the period of January 1 through December 31 or otherwise as directed by the Alcohol Law Enforcement Division of the Department of Public Safety and shall be filed with the Division and the local law-enforcement agency at a time directed by the Division. The audit shall be prepared on a form approved by the Division and shall include the following information:
    1. The number of bingo games conducted or sponsored by the exempt organization;
    2. The location and date at which each bingo game was conducted and the prize awarded;
    3. The gross receipts of each bingo game;
    4. The cost or amount of any prize given at each bingo game;
    5. The amount paid in prizes at each session;
    6. The net return to the exempt organization; and
    7. The disbursements from the separate account and the purpose of those disbursements, including the date of each transaction and the name and address of each payee.
  3. Any person who shall willfully furnish, supply, or otherwise give false information in any audit or statement filed pursuant to this section shall be guilty of a Class 2 misdemeanor.
  4. All books, papers, records and documents relevant to determining whether an organization has acted or is acting in compliance with this section shall be open to inspection by the law-enforcement agency or its designee, or the district attorney or his designee, or the Alcohol Law Enforcement Division of the Department of Public Safety at reasonable times and during reasonable hours.

History. 1983, c. 896, s. 3; 1983 (Reg. Sess., 1984), c. 1107, ss. 2, 3, 9; 1987, c. 866, s. 3; 1987 (Reg. Sess., 1988), c. 1001, s. 1; 1993, c. 539, s. 213; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.118(a); 2002-159, ss. 4(a), (b); 2011-145, s. 19.1(g); 2016-27, s. 3; 2020-72, s. 1(b).

Editor’s Note.

The phrase “in conducting the raffle and” which appears in the second sentence of subsection (a) was not changed by Session Laws 1983 (Reg. Sess., 1984), c. 1107, which deleted the other references to raffles from this section. However, it would appear that the retention of this phrase may have been inadvertent.

Session Laws 1999-237, s. 11.18, provides that the Bingo Program in the Department of Health and Human Services, Division of Facility Services, and all functions, powers, duties, and obligations vested in the Department of Health and Human Services for the Bingo Program, are transferred to and vested in the Department of Public Safety by a Type I transfer, as defined in G.S. 143A-6 .

Session Laws 2016-27, s. 3, provides: “The Revisor of Statutes is directed to replace any reference to the “Department of Public Safety” with the “State Bureau of Investigation” wherever it appears in Part 2 of Article 37 of Chapter 14 of the General Statutes.” At the direction of the Revisor of Statutes, “State Bureau of Investigation” was substituted for “Department of Public Safety” throughout the section.

Session Laws 2020-72, s. 1(d), made the amendment of subsections (b) and (d) of this section by Session Laws 2020-72, s. 1(b), effective October 1, 2020, and applicable to applications submitted on or after that date.

Effect of Amendments.

Session Laws 2011-145, s. 19.1(g), effective January 1, 2012, substituted “Department of Public Safety” for “Department of Crime Control and Public Safety” throughout the section.

Session Laws 2016-27, s. 3, effective June 22, 2016, substituted “State Bureau of Investigation” for “Department of Public Safety” throughout this code section.

Session Laws 2020-72, s. 1(b), in the introductory paragraph of subsection (b) and in subsection (d), substituted “Alcohol Law Enforcement Division of the Department of Public Safety” for “State Bureau of Investigation”; and substituted “Division” for “State Bureau of Investigation” three times in the introductory paragraph of subsection (b). For effective date and applicability, see editor’s note.

CASE NOTES

Constitutionality. —

With the exception of the provision relating to homeowner and property owner associations (now found in G.S. 14-309.6(1)), G.S. 14-289 and 14-290 and former G.S. 14-292.1 (now replaced by G.S. 14-309.5 et seq.) do not violate the due process or equal protection provisions of either the North Carolina Constitution or the United States Constitution. State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883, 1983 N.C. App. LEXIS 3481 (1983), aff'd, 311 N.C. 397 , 316 S.E.2d 870, 1984 N.C. LEXIS 1745 (1984).

The portion of former G.S. 14-292.1(d) (see now subsection (a) of this section) requiring exempt organization facilities financed by bingo or raffle proceeds to be made available for use by the general public “from time to time” is simply insufficient to prevent the grant of a special gambling privilege to homeowner or property owner associations from violating the exclusive emoluments clause of the North Carolina Constitution. State v. McCleary, 65 N.C. App. 174, 308 S.E.2d 883, 1983 N.C. App. LEXIS 3481 (1983), aff'd, 311 N.C. 397 , 316 S.E.2d 870, 1984 N.C. LEXIS 1745 (1984).

§ 14-309.12. Violation is gambling.

A bingo game conducted otherwise than in accordance with the provisions of this Part is “gambling” within the meaning of G.S. 19-1 et seq., and proceedings against such bingo game may be instituted as provided for in Chapter 19 of the General Statutes.

History. 1983, c. 896, s. 3; 1983 (Reg. Sess., 1984), c. 1107, s. 2.

§ 14-309.13. Public sessions.

Any exempt organization operating a bingo game which is open to persons other than members of the exempt organization, their spouses, and their children shall make such bingo game open to the general public.

History. 1983, c. 896, s. 3; 1983 (Reg. Sess., 1984), c. 1107, s. 4.

§ 14-309.14. Beach bingo.

Nothing in this Article shall apply to “beach bingo” games except for the following subdivisions:

  1. No beach bingo game may offer a prize having a value greater than ten dollars ($10.00). Any person offering a greater than ten-dollar ($10.00) but less than fifty-dollar ($50.00) prize is guilty of a Class 2 misdemeanor. Any person offering a prize of fifty dollars ($50.00) or greater is guilty of a Class I felony.
  2. No beach bingo game may be held in conjunction with any other lawful bingo game, with any “promotional bingo game”, or with any offering of an opportunity to obtain anything of value, whether for valuable consideration or not. No beach bingo game may offer free bingo games as a promotion, for prizes or otherwise. Any person who violates this subsection is guilty of a Class I felony.
  3. Repealed by Session Laws 2019-182, s. 14(b), effective September 1, 2019, and applicable to offenses committed on or after that date.
  4. Upon conviction under any provision of this section, such person shall not conduct a bingo game for a period of at least one year.
  5. A person shall not operate a beach bingo game at any location without first obtaining a license as provided by this subdivision. Any person operating a beach bingo game without a license is guilty of a Class 2 misdemeanor. The procedure for obtaining an application for a beach bingo license shall be as follows:
    1. The application for a beach bingo license shall be made to the Alcohol Law Enforcement Division of the Department of Public Safety on a form prescribed by the Division. The Division shall charge an initial application fee of three hundred dollars ($300.00) and an annual renewal fee of three hundred dollars ($300.00) to defray the cost of issuing beach bingo licenses and handling enforcement. The fees collected shall be deposited in the General Fund of the State. This license shall expire one year after the granting of the license but may be renewed yearly upon payment of the renewal fee.
    2. Each application and renewal application shall contain all of the following information:
      1. The name and address of the applicant and if the applicant is a corporation, association, or other similar legal entity, the name and home address of each of the officers of the organization as well as the name and address of the directors, or other persons similarly situated, of the organization.
      2. The location at which the applicant will conduct the bingo games. If the premises are leased, a copy of the lease or rental agreement.
    3. Any false information provided in an application for a beach bingo license is cause for suspension of that license and is also a Class 2 misdemeanor.
    4. All books, papers, records, and documents relevant to determining whether an individual has acted or is acting in compliance with this section shall be open to inspection by the Alcohol Law Enforcement Division of the Department of Public Safety at reasonable times and during reasonable hours.

History. 1983, c. 896, s. 3; 1983 (Reg. Sess., 1984), c. 1107, s. 10; 1987, c. 701; 1989 (Reg. Sess., 1990), c. 826, s. 2; 1993, c. 539, ss. 214, 1232; 1994, Ex. Sess., c. 24, s. 14(c); 2016-27, s. 1; 2017-102, s. 5.1(b); 2019-182, s. 14(b); 2020-72, s. 1(c).

Editor’s Note.

Session Laws 1993, c. 539, s. 1232 redesignated former subdivisions (a) and (b) as (1) and (2), respectively, but left the subdivision designations (c) and (d) unchanged. Subdivisions (c) and (d) have been redesignated as subdivisions (3) and (4), respectively, at the direction of the Revisor of Statutes.

Session Laws 2016-27, s. 2 provides: “The State Bureau of Investigation may take the necessary actions to develop and implement the application process. Beginning October 1, 2016, the State Bureau of Investigation may accept applications, charge and collect application fees, and issue licenses as provided by G.S. 14-309.14(5), as enacted by this act.”

Session Laws 2016-27, s. 4, as amended by Session Laws 2017-102, s. 5.1(b), provides in part: “G.S. 14-309.14(5)c., as enacted by Section 1 of this act, becomes effective October 1, 2016, and applies to applications submitted on or after October 1, 2016, and offenses committed on or after that date. The remainder of Section 1 of this act becomes effective December 1, 2016, and applies to offenses committed on or after that date.”

Session Laws 2019-182, s. 14(d), made the repeal of subdivision (3) by Session Laws 2019-182, s. 14(b), effective September 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-182, s. 28, is a severability clause.

Session Laws 2020-72, s. 1(d), made the amendment of subdivision (5) of this section by Session Laws 2020-72, s. 1(c), effective October 1, 2020, and applicable to applications submitted on or after that date.

Effect of Amendments.

Session Laws 2016-27, s. 1, added subdivision (5). For effective date and applicability, see editor’s note.

Session Laws 2019-182, s. 14(b), deleted subdivision (3). For effective date and applicability, see editor’s note.

Session Laws 2020-72, s. 1(c), substituted “Alcohol Law Enforcement Division of the Department of Public Safety” for “State Bureau of Investigation” in sub-subdivisions (5)a. and (5)d.; and substituted “Division” for “Bureau” in the first and second sentences of sub-subdivision (5)a. For effective date and applicability, see editor’s note.

CASE NOTES

Violation Shown. —

Requiring a player to have four or five bingos during the same sequence of calling numbers merely extends the single game and does not convert it into five individual games; thus, defendants violated this section by offering $40.00 and $50.00 prizes. State v. Crabtree, 126 N.C. App. 729, 487 S.E.2d 575, 1997 N.C. App. LEXIS 628 (1997).

§ 14-309.15. Raffles.

  1. It is lawful for any nonprofit organization, candidate, political committee, or any government entity within the State, to conduct raffles in accordance with this section. Each regional or county chapter of a nonprofit organization is eligible to conduct raffles in accordance with this section independently of its parent organization. Any person who conducts a raffle in violation of any provision of this section is guilty of a Class 2 misdemeanor. Upon conviction that person shall not conduct a raffle for a period of one year. It is lawful to participate in a raffle conducted pursuant to this section. It is not a violation of State law to advertise a raffle conducted in accordance with this section. A raffle conducted pursuant to this section is not “gambling.” For the purpose of this section, “candidate” and “political committee” have the meaning provided by Article 22A of Chapter 163 of the General Statutes, who have filed organization reports under that Article, and who are in good standing with the appropriate board of elections. Receipts and expenditures of a raffle by a candidate or political committee shall be reported in accordance with Article 22A of Chapter 163 of the General Statutes, and ticket purchases are contributions within the meaning of that Article.
  2. For purposes of this section “raffle” means a game in which the prize is won by random drawing of the name or number of one or more persons purchasing chances.
  3. A nonprofit organization may hold no more than four raffles per year.
  4. Except as provided in subsection (g) of this section, the maximum cash prize that may be offered or paid for any one raffle is one hundred twenty-five thousand dollars ($125,000) and if merchandise is used as a prize, and it is not redeemable for cash, the maximum fair market value of that prize may be one hundred twenty-five thousand dollars ($125,000). The total cash prizes offered or paid by any nonprofit organization shall not exceed two hundred fifty thousand dollars ($250,000) in any calendar year. The total fair market value of all prizes offered by any nonprofit organization, either in cash or in merchandise that is not redeemable for cash, shall not exceed two hundred fifty thousand dollars ($250,000) in any calendar year.
  5. Raffles shall not be conducted in conjunction with bingo.
  6. As used in this subsection, “net proceeds of a raffle” means the receipts less the cost of prizes awarded. No less than ninety percent (90%) of the net proceeds of a raffle shall be used by the nonprofit organization for charitable, religious, educational, civic, or other nonprofit purposes. None of the net proceeds of the raffle shall be used to pay any person to conduct the raffle, or to rent a building where the tickets are received or sold or the drawing is conducted.
  7. Real property may be offered as a prize in a raffle. The maximum appraised value of real property that may be offered for any one raffle is five hundred thousand dollars ($500,000). The total appraised value of all real estate prizes offered by any nonprofit organization shall not exceed five hundred thousand dollars ($500,000) in any calendar year.
  8. Notwithstanding any other subsection of this section, it is lawful for a federally insured depository institution to conduct a savings promotion raffle under G.S. 53C-6-20 , 54-109.64, 54B-140, or 54C-180.

History. 1983 (Reg. Sess., 1984), c. 1107, s. 11; 1993, c. 219, s. 1; c. 539, s. 215; 1994, Ex. Sess., c. 24, s. 14(c); 1997-10, s. 1; 2005-276, s. 17.31; 2005-345, s. 31; 2006-264, s. 3(a); 2009-49, s. 1; 2011-146, s. 1; 2013-381, s. 59.1; 2018-100, s. 5(b); 2019-173, s. 2(a).

Editor’s Note.

Session Laws 1993, c. 219, which amended this section, in s. 2 provides that for purposes of the act, government entities within the State of North Carolina shall be considered nonprofit as defined in G.S. 105-130.11(a) . Session Laws 2006-264, s. 3(b) repealed Session Laws 1993, c. 219, s. 2, effective August 27, 2006.

Session Laws 2019-173, s. 2(e), made the amendments to this section by Session Laws 2019-173, s. 2(a), effective December 1, 2019, and applicable to raffles conducted on or after that date.

“Article 22A of Chapter 163A” were changed to “Article 22A of Chapter 163” at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2005-276, s. 17.21, as added by Session Laws 2005-345, s. 31, effective July 1, 2005, substituted “fifty thousand dollars ($50,000)” for “ten thousand dollars ($10,000)” in the first and third sentences of subsection (d).

Session Laws 2006-264, s. 3(a), effective August 27, 2006, inserted “and for any government entity within the State” in the first sentence of subsection (a).

Session Laws 2009-49, s. 1, effective June 1, 2009, in subsection (a), inserted “or for any bona fide branch, chapter, or affiliate of such organization,” in the first sentence; in subsection (b), substituted “one hundred twenty-five thousand dollars ($125,000)” for “fifty thousand dollars ($50,000)” throughout, in the first sentence, substituted “Except as provided in subsection (g) of this section, the maximum” for “The maximum”, and deleted the former second sentence, which read: “No real property may be offered as a prize in a raffle.”; and added subsection (g).

Session Laws 2011-146, s. 1, effective October 1, 2011, added subsection (h).

Session Laws 2013-381, s. 59.1, effective January 1, 2014, in subsection (a), inserted “candidate, political committee” in the first sentence, and added the last two sentences.

Session Laws 2018-100, s. 5(b), effective October 1, 2018, rewrote the section.

Session Laws 2019-173, s. 2(a), effective December 1, 2019, rewrote the code section.

CASE NOTES

Obligation of One Conducting “Raffle.” —

By using a “raffle,” with a car as the grand prize, as an inducement for people to buy tickets at a price of $100.00 each, defendant was obligated, by virtue of subsection (b) of this section, to ensure that (1) the designated prize would be given to a ticket holder, and (2) the method of selecting that ticket holder would be random. Keene Convenient Mart, Inc. v. SSS Band Backers, 109 N.C. App. 384, 427 S.E.2d 322, 1993 N.C. App. LEXIS 277 (1993).

Randomness. —

Defendant, by putting the ticket of ticket purchaser, which had been inadvertently omitted from basket, in the basket out of which names were being drawn, after some of the names already had been drawn, changed the character of the event. The event lost its character of a random drawing and from that point forward constituted a slanted game of chance which did not comply the term “raffle” as defined in this section and, as such, was void as against public policy. Keene Convenient Mart, Inc. v. SSS Band Backers, 109 N.C. App. 384, 427 S.E.2d 322, 1993 N.C. App. LEXIS 277 (1993).

§§ 14-309.16 through 14-309.19.

Reserved for future codification purposes.

Part 3. Greyhound Racing.

§ 14-309.20. Greyhound racing prohibited.

  1. No person shall hold, conduct, or operate any greyhound races for public exhibition in this State for monetary remuneration.
  2. No person shall transmit or receive interstate or intrastate simulcasting of greyhound races for commercial purposes in this State.
  3. Any person who violates this section shall be guilty of a Class 1 misdemeanor.

History. 1998-212, s. 17.16(d).

§§ 14-309.21 through 14-309.24.

Reserved for future codification purposes.

Part 4. Game Nights.

§ 14-309.25. Definitions.

The following definitions apply in this Part:

  1. Exempt organization. —  An organization that has been in continuous existence for at least five years and that is exempt from taxation under section 501(c)(3), 501(c)(4), 501(c)(5), or 501(c)(6) of the United States Internal Revenue Code.
  2. Game night. —  A specific event at which games of chance are played and prizes are awarded by raffle and that is sponsored by or on behalf of an exempt organization for the primary purpose of raising funds for the exempt organization or is sponsored by an employer or trade association pursuant to G.S. 14-309.34 .
  3. Local law enforcement agency. —  Any county or municipal law enforcement agency that has territorial and subject matter jurisdiction over the location at which the game night is being held.
  4. Qualified facility. —  As defined in G.S. 18B-1000 .

History. 2019-13, s. 2.

Editor’s Note.

Session Laws 2019-13, s. 4, provides: “The Department of Public Safety shall make a report to the 2020 Regular Session of the General Assembly detailing the administration of game night event permits, including the total number of applications received by permittee type, the total number of permits issued, the number of ABC violations reported at establishments that hosted game night events, and any other information the Department deems appropriate to report regarding this act, and shall provide a recommendation as to whether the General Assembly should modify this act. If the recommendation is to modify this act, the Department of Public Safety shall submit recommended proposed legislation to the 2020 Regular Session of the General Assembly.”

Session Laws 2019-13, s. 5, made this Part effective June 1, 2019, and further provides: “If a final order by a court of competent jurisdiction finds that any portion of Sections 1 through 4 of this act is unconstitutional, or if the passage of Sections 1 through 4 of this act would cause the State to forfeit payments due under a compact entered into between the State and a federally recognized Indian tribe, Sections 1 through 4 of this act are void.”

§ 14-309.26. Game nights.

  1. It is lawful for an exempt organization to conduct a game night at a qualified facility in accordance with the provisions of this Part. Each regional or county chapter of an exempt organization shall be eligible to conduct game nights in accordance with this Part independently of its parent organization, provided that the regional or county chapter has been in continuous existence for at least five years. It is lawful for persons to participate in a game night conducted pursuant to this Part. It shall not constitute a violation of any State law to advertise a game night conducted in accordance with this Part. (a1) Notwithstanding subsection (a) of this section, an exempt organization that is exempt from taxation under section 501(c)(3) of the Internal Revenue Code and operates a specialized community residential center for individuals with developmental disabilities licensed pursuant to G.S. 122C-23 may conduct a game night in accordance with this Part in a location that is not a qualified facility if the exempt organization has been issued a special one-time permit under G.S. 18B-1002(a)(5) to be used for the game night.
  2. If any exempt organization conducts a game night in violation of any provision of this Part, the person indicated in G.S. 14-309.27(b)(2) is guilty of a Class 2 misdemeanor. In addition to any fine that may be imposed, an exempt organization convicted of a violation under this Part shall not conduct a game night for a period of one year from the date of the conviction.

History. 2019-13, s. 2; 2021-150, s. 32.1.

Editor’s Note.

Session Laws 2021-150, s. 32.2, made subsection (a1) of this section, as added by Session Laws 2021-150, s. 32.1, effective October 1, 2021, and applicable to game nights conducted on or after that date.

Effect of Amendments.

Session Laws 2021-150, s. 32.1, added subsection (a1). For effective date and applicability, see editor’s note.

§ 14-309.27. Permit procedure.

  1. An exempt organization shall not operate a game night without first obtaining a permit as provided by this Part. The application for a game night permit shall be on a form prescribed by the Alcohol Law Enforcement Division of the Department of Public Safety and shall be submitted to the Alcohol Law Enforcement Headquarters at least 30 days in advance of the date for the game night event.
  2. Each application for a permit under this Part shall contain the following information:
    1. The name and address of the exempt organization that is applying for the permit.
    2. The name, address, and signature of the person applying on behalf of the exempt organization and who will be responsible for the event.
    3. Verification of the tax-exempt status of the exempt organization, except, if the applicant is a local chapter, division, lodge, or branch of the exempt organization, then verification of the tax-exempt status of the parent organization.
    4. Verification of the exempt organization’s status as a licensed or exempt charitable or sponsor organization pursuant to Chapter 131F of the General Statutes.
    5. The time, duration, date, and place of the event.
    6. The games proposed to be operated.
    7. The name and address of the person, firm, or corporation who will operate the games and the relationship, if any, of such person, firm, or corporation to the exempt organization or qualified facility.

      (7a) The location of the facility at which the event will be held.

    8. The area of the facility in which the event will be held.
  3. A separate application shall be required for each game night event. A fee of one hundred dollars ($100.00) shall be charged for each permit. The permit fees assessed under this Part are payable to the Alcohol Law Enforcement Division of the Department of Public Safety and shall be collected and used by the Alcohol Law Enforcement Division to defray the costs of issuing game night permits. The permit shall be displayed at the event. A qualified facility shall not be subject to civil or criminal liability for violating this Part if the exempt organization provides the facility with a permit for the game night event.

History. 2019-13, s. 2; 2021-150, s. 32.1.

Cross References.

As to solicitation of charitable contributions, see Chapter 131F of the General Statutes, G.S. 131F-1 et seq.

Editor’s Note.

Session Laws 2021-150, s. 32.2, made the amendments to this section by Session Laws 2021-150, s. 32.1, effective October 1, 2021, and applicable to game nights conducted on or after that date.

Effect of Amendments.

Session Laws 2021-150, s. 32.1, throughout subsections (a) and (c), substituted “Division” for “Branch”; added subdivision (b)(7a); substituted “facility” for “premises” in subdivision (b)(8). For effective date and applicability, see editor’s note.

§ 14-309.28. Limits on game night events.

The following limitations apply to game night events:

  1. The number of game night events conducted or sponsored by an exempt organization shall be limited to four events per year.
  2. The event shall not exceed a period of five hours each per event. No more than one game night event shall be held in any quarter of a calendar year that begins January 1.
  3. No more than two game night events shall be operated or conducted in any one building, hall, or structure during any one calendar week, and if two events are held, they must be held by different exempt organizations on different nights of the week.
  4. There shall be no operation of a game night event between the hours of 2:00 A.M. and 12:00 noon Monday through Saturday or between the hours of 2:00 A.M. and 2:00 P.M. Sunday.
  5. A facility authorized to host a game night under this Part shall not host more than two game nights in any calendar month.

History. 2019-13, s. 2; 2021-150, s. 32.1.

Editor’s Note.

Session Laws 2021-150, s. 32.2, made the amendments to subdivision (5) of this section by Session Laws 2021-150, s. 32.1, effective October 1, 2021, and applicable to game nights conducted on or after that date.

Effect of Amendments.

Session Laws 2021-150, s. 32.1, substituted “facility authorized to host a game night under this Part” for “qualified facility, as defined in G.S. 18B-1000(5a)”; and made a minor punctuation change. For effective date and applicability, see editor’s note.

§ 14-309.29. Game night; prizes and costs.

  1. Prizes. —  No games at a game night event may be played for cash or a cash prize. Prizes shall be awarded only through a raffle. Participants may exchange chips, markers, or tokens from the game night event for raffle tickets. For purposes of this subsection, the term “cash prize” includes gift cards that are issued by a financial institution or its operating subsidiary and that are usable at multiple unaffiliated sellers of goods or services.
  2. Costs. —  The cost of the prizes and expenses to operate the game night event, excluding the cost of food, beverages, and entertainment, shall not exceed the proceeds derived from the event. If the exempt organization hires a game night vendor for the event, payment shall be by fixed fee.

History. 2019-13, s. 2.

§ 14-309.30. Operation of game night events.

The following games are the only games that may be played at a game night event:

  1. Roulette.
  2. Blackjack.
  3. Poker.
  4. Craps.
  5. Simulated horse race.
  6. Merchandise wheel of fortune.

History. 2019-13, s. 2.

§ 14-309.31. Use of proceeds.

The exempt organization may use its own funds or funds received in connection with the game night for prizes, advertising, utilities, space rental, and the purchase or rental of supplies and equipment, including game night tables and related equipment, used in conducting the games. Net proceeds from the game night shall inure to the benefit of the exempt organization and shall be used to further the organization’s tax-exempt purposes.

History. 2019-13, s. 2.

§ 14-309.32. Violation is gambling.

A game night conducted other than in accordance with the provisions of this Part is “gambling” within the meaning of G.S. 14-292 and G.S. 19-1 , et seq., and proceedings against such game night may be instituted as provided for in Chapter 19 of the General Statutes.

History. 2019-13, s. 2.

§ 14-309.33. Applicability.

This Part is only applicable in areas of the State located east of I-26 as that interstate highway was located on November 28, 2011.

History. 2019-13, s. 2.

§ 14-309.34. Applicability to employer paid events.

  1. It shall be lawful (i) for an employer, with 25 or more employees, to hold a game night event for employees and guests or a trade association, with 25 or more members, to hold a game night event for its members and guests, and (ii) for persons to participate in a game night conducted pursuant to this section, provided all of the following conditions are met:
    1. There is no cost or charge to the attendees.
    2. The employer or trade association obtains a permit and pays the required fee, as provided in G.S. 14-309.27 .
    3. The game night event is held at a qualified facility.
  2. Game night events conducted pursuant to this section shall be subject to the limitations of G.S. 14-309.28 , 14-309.29(a), and 14-309.30.
  3. For purposes of this section, any reference to “exempt organization” in G.S. 14-309.27 shall include the employer or trade association submitting an application as required by this section, except that the verification required by subdivisions (3) and (4) of subsection (b) of G.S. 14-309.27 shall not be required from an applicant for a permit if the applicant is required to obtain the permit pursuant to subsection (a) of this section.
  4. If any employer or trade association conducts a game night in violation of any provision of this section, the person indicated in G.S. 14-309.27(b)(2) is guilty of a Class 2 misdemeanor. In addition to any fine that may be imposed, the employer or trade association convicted of a violation of this section shall not conduct a game night for a period of one year from the date of the conviction.

History. 2019-13, s. 2.

§ 14-309.35. Registration, possession, and transportation of gaming equipment.

  1. Notwithstanding the provisions of G.S. 14-295 or G.S. 14-297 , it shall be lawful to possess or transport gaming tables and other gaming equipment, if the possession or transportation is solely for use in game night events conducted pursuant to this Part. Gaming tables and other gaming equipment possessed or transported pursuant to this Part shall not be subject to seizure pursuant to G.S. 14-298 if they have been registered pursuant to the provisions of this Article and are used solely in game night events conducted pursuant to this Part.
  2. A gaming table or other gaming equipment possessed or transported for use in a game night event must be registered with the Alcohol Law Enforcement Division of the Department of Public Safety and must have a sticker affixed with a unique number. A fee of twenty-five dollars ($25.00) shall be charged for each sticker and each sticker shall be renewed annually. The sticker fees assessed under this section are payable to the Alcohol Law Enforcement Division of the Department of Public Safety and shall be collected and used by the Alcohol Law Enforcement Division to defray the costs of registering the gaming tables and gaming equipment. The Alcohol Law Enforcement Division may inspect, without prior notice, any gaming table or other gaming equipment used in a game night event at any time immediately prior to or during the game night event. Use of a gaming table or gaming equipment in a game night event that does not comply with the requirements of this subsection shall be a Class 1 misdemeanor.

History. 2019-13, s. 2; 2021-150, s. 32.1.

Editor’s Note.

Session Laws 2021-150, s. 32.2, made the amendments to this section by Session Laws 2021-150, s. 32.1, effective October 1, 2021, and applicable to game nights conducted on or after that date.

Effect of Amendments.

Session Laws 2021-150, s. 32.1, substituted “Division” for “Branch” throughout subsection (b). For effective date and applicability, see editor’s note.

§ 14-309.36. Permit procedure for game night vendors.

  1. No person, firm, or corporation may receive compensation for providing gaming tables or gaming equipment for use in a game night without first obtaining a permit as provided by this section. The application for a game night vendor permit shall be on a form prescribed by the Alcohol Law Enforcement Division of the Department of Public Safety and shall be submitted to the Alcohol Law Enforcement Headquarters.
  2. A fee of two thousand five hundred dollars ($2,500) shall be charged annually for each permit. The permit fees assessed under this section are payable to the Alcohol Law Enforcement Division of the Department of Public Safety and shall be collected and used by the Alcohol Law Enforcement Division to defray the costs of issuing game night vendor permits and ensuring compliance with this section. The game night vendor permit shall be displayed at any event the game night vendor conducts.
  3. The Alcohol Law Enforcement Division shall deny a permit to a person, firm, or corporation that meets any of the following disqualifying conditions:
    1. Has a conviction for any violation of State or federal gambling laws within the five years prior to the date of application.
    2. Has pending charges for any violation of State or federal gambling laws.
    3. Is subject to an active criminal or civil court order prohibiting involvement in gambling activities.
    4. Has a conviction for any felony.
  4. A person, firm, or corporation with a game night vendor permit may not employ a person that meets any of the following disqualifying conditions:
    1. Has a conviction for any violation of State or federal gambling laws within the five years prior to the date of employment.
    2. Has pending charges for any violation of State or federal gambling laws.
    3. Is subject to an active criminal or civil court order prohibiting involvement in gambling activities.
    4. Has a conviction for any felony.
  5. All gaming tables and gaming equipment owned or possessed by a game night vendor must be registered pursuant to G.S. 14-309.35 . The Alcohol Law Enforcement Division of the Department of Public Safety shall inspect the gaming tables and equipment of each game night vendor at least one time per calendar year and may conduct any additional inspections reasonably necessary to ensure compliance with G.S. 14-309.35 and this section. Inspections of gaming tables and equipment shall occur (i) on the premises of a game night event that the game night vendor has been employed to conduct, (ii) immediately prior to or during the game night event, (iii) at locations, times, and dates chosen by the Alcohol Law Enforcement Division, and (iv) without prior notice to the game night vendor or any party that has obtained a permit pursuant to G.S. 14-309.27 .

History. 2019-13, s. 2; 2021-150, s. 32.1.

Editor’s Note.

Session Laws 2021-150, s. 32.2, made the amendments to this section by Session Laws 2021-150, s. 32.1, effective October 1, 2021, and applicable to game nights conducted on or after that date.

Effect of Amendments.

Session Laws 2021-150, s. 32.1, substituted “Division” for “Branch” throughout subsections (a) through (c) and (e). For effective date and applicability, see editor’s note.

§ 14-309.37. Slot machines, video gaming machines, electronic sweepstakes machines not authorized.

Nothing in this Part shall be construed to authorize the possession, transportation, or use of any slot machine, video gaming machine, or electronic machine or device prohibited pursuant to G.S. 14-304 through 14-309.

History. 2019-13, s. 2.

Article 38. Marathon Dances and Similar Endurance Contests. [Repealed]

§§ 14-310 through 14-312. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(13)-(15), effective October 1, 1994.

Article 39. Protection of Minors.

§ 14-313. Youth access to tobacco products, tobacco-derived products, vapor products, and cigarette wrapping papers.

  1. Definitions. —  The following definitions apply in this section:
    1. Distribute. — To sell, furnish, give, or provide tobacco products, including tobacco product samples or cigarette wrapping papers, to the ultimate consumer.
    2. Proof of age. — A drivers license or other photographic identification that includes the bearer’s date of birth that purports to establish that the person is 18 years of age or older.
    3. Sample. — A tobacco product distributed to members of the general public at no cost for the purpose of promoting the product.

      (3a) Tobacco-derived product. — Any noncombustible product derived from tobacco that contains nicotine and is intended for human consumption, whether chewed, absorbed, dissolved, ingested, or by other means. This term does not include a vapor product or any product regulated by the United States Food and Drug Administration under Chapter V of the federal Food, Drug, and Cosmetic Act.

    4. Tobacco product. — Any product that contains tobacco and is intended for human consumption. For purposes of this section, the term includes a tobacco-derived product, vapor product, or components of a vapor product.
    5. Vapor product. — Any noncombustible product that employs a mechanical heating element, battery, or electronic circuit regardless of shape or size and that can be used to heat a liquid nicotine solution contained in a vapor cartridge. The term includes an electronic cigarette, electronic cigar, electronic cigarillo, and electronic pipe. The term does not include any product regulated by the United States Food and Drug Administration under Chapter V of the federal Food, Drug, and Cosmetic Act.
  2. Sale or distribution to persons under the age of 18 years. —  If any person shall distribute, or aid, assist, or abet any other person in distributing tobacco products or cigarette wrapping papers to any person under the age of 18 years, or if any person shall purchase tobacco products or cigarette wrapping papers on behalf of a person under the age of 18 years, the person shall be guilty of a Class 2 misdemeanor; provided, however, that it shall not be unlawful to distribute tobacco products or cigarette wrapping papers to an employee when required in the performance of the employee’s duties. Retail distributors of tobacco products shall prominently display near the point of sale a sign in letters at least five-eighths of an inch high which states the following: THE PURCHASE OF TOBACCO PRODUCTS, TOBACCO-DERIVED PRODUCTS, VAPOR PRODUCTS, AND CIGARETTE WRAPPING PAPERS

    BY PERSONS UNDER THE AGE OF 18.

    PROOF OF AGE REQUIRED. Failure to post the required sign shall be an infraction punishable by a fine of twenty-five dollars ($25.00) for the first offense and seventy-five dollars ($75.00) for each succeeding offense.A person engaged in the sale of tobacco products or cigarette wrapping papers shall demand proof of age from a prospective purchaser if the person has reasonable grounds to believe that the prospective purchaser is under 18 years of age. Failure to demand proof of age as required by this subsection is a Class 2 misdemeanor if in fact the prospective purchaser is under 18 years of age. Retail distributors of tobacco products or cigarette wrapping papers shall train their sales employees in the requirements of this law. Proof of any of the following shall be a defense to any action brought under this subsection:

    1. The defendant demanded, was shown, and reasonably relied upon proof of age in the case of a retailer, or any other documentary or written evidence of age in the case of a nonretailer.
    2. The defendant relied on the electronic system established and operated by the Division of Motor Vehicles pursuant to G.S. 20-37.02 .
    3. The defendant relied on a biometric identification system that demonstrated (i) the purchaser’s age to be at least the required age for the purchase and (ii) the purchaser had previously registered with the seller or seller’s agent a drivers license, a special identification card issued under G.S. 20-37.7 , a military identification card, or a passport showing the purchaser’s date of birth and bearing a physical description of the person named on the card.

      N.C. LAW STRICTLY PROHIBITS

      (b1) Distribution of tobacco products. — Tobacco products shall not be distributed in vending machines; provided, however, vending machines distributing tobacco products are permitted (i) in any establishment which is open only to persons 18 years of age and older; or (ii) in any establishment if the vending machine is under the continuous control of the owner or licensee of the premises or an employee thereof and can be operated only upon activation by the owner, licensee, or employee prior to each purchase and the vending machine is not accessible to the public when the establishment is closed. The owner, licensee, or employee shall demand proof of age from a prospective purchaser if the person has reasonable grounds to believe that the prospective purchaser is under 18 years of age. Failure to demand proof of age as required by this subsection is a Class 2 misdemeanor if in fact the prospective purchaser is under 18 years of age. Proof that the defendant demanded, was shown, and reasonably relied upon proof of age shall be a defense to any action brought under this subsection. Vending machines distributing tobacco products in establishments not meeting the above conditions shall be removed prior to December 1, 1997. Vending machines distributing tobacco-derived products, vapor products, or components of vapor products in establishments not meeting the above conditions shall be removed prior to August 1, 2013. Any person distributing tobacco products through vending machines in violation of this subsection shall be guilty of a Class 2 misdemeanor.

      (b2) Internet distribution of tobacco products. — A person engaged in the distribution of tobacco products through the Internet or other remote sales methods shall perform an age verification through an independent, third-party age verification service that compares information available from public records to the personal information entered by the individual during the ordering process to establish that the individual ordering the tobacco products is 18 years of age or older.

  3. Purchase by persons under the age of 18 years. —  If any person under the age of 18 years purchases or accepts receipt, or attempts to purchase or accept receipt, of tobacco products or cigarette wrapping papers, or presents or offers to any person any purported proof of age which is false, fraudulent, or not actually his or her own, for the purpose of purchasing or receiving any tobacco product or cigarette wrapping papers, the person shall be guilty of a Class 2 misdemeanor; provided, however, that it shall not be unlawful for an employee to purchase or accept receipt of tobacco products or cigarette wrapping papers when required in the performance of the employee’s duties.
  4. Sending or assisting a person [less than] 18 years to purchase or receive tobacco products or cigarette wrapping papers. —  If any person shall send a person less than 18 years of age to purchase, acquire, receive, or attempt to purchase, acquire, or receive tobacco products or cigarette wrapping papers, or if any person shall aid or abet a person who is less than 18 years of age in purchasing, acquiring, or receiving or attempting to purchase, acquire, or receive tobacco products or cigarette wrapping papers, the person shall be guilty of a Class 2 misdemeanor; provided, however, persons under the age of 18 may be enlisted by police or local sheriffs’ departments to test compliance if the testing is under the direct supervision of that law enforcement department and written parental consent is provided; provided further, that the Department of Health and Human Services shall have the authority, pursuant to a written plan prepared by the Secretary of Health and Human Services, to use persons under 18 years of age in annual, random, unannounced inspections, provided that prior written parental consent is given for the involvement of these persons and that the inspections are conducted for the sole purpose of preparing a scientifically and methodologically valid statistical study of the extent of success the State has achieved in reducing the availability of tobacco products to persons under the age of 18, and preparing any report to the extent required by section 1926 of the federal Public Health Service Act (42 USC § 300x-26).
  5. Statewide uniformity. —  It is the intent of the General Assembly to prescribe this uniform system for the regulation of tobacco products and cigarette wrapping papers to ensure the eligibility for and receipt of any federal funds or grants that the State now receives or may receive relating to the provisions of this section. To ensure uniformity, no political subdivisions, boards, or agencies of the State nor any county, city, municipality, municipal corporation, town, township, village, nor any department or agency thereof, may enact ordinances, rules or regulations concerning the sale, distribution, display or promotion of (i) tobacco products or cigarette wrapping papers on or after September 1, 1995, or (ii) tobacco-derived products or vapor products on or after August 1, 2013. This subsection does not apply to the regulation of vending machines, nor does it prohibit the Secretary of Revenue from adopting rules with respect to the administration of the tobacco products taxes levied under Article 2A of Chapter 105 of the General Statutes.
  6. Deferred Prosecution or Conditional Discharge. —  Notwithstanding G.S. 15A-1341(a1) or G.S. 15A-1341(a4), any person charged with a misdemeanor under this section shall be qualified for deferred prosecution or a conditional discharge pursuant to Article 82 of Chapter 15A of the General Statutes provided the defendant has not previously been placed on probation for a violation of this section and so states under oath.

History. 1891, c. 276; Rev., s. 3804; C.S., s. 4438; 1969, c. 1224, s. 3; 1991, c. 628, s. 1; 1993, c. 539, s. 216; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 241, s. 1; 1997-434, ss. 1-6; 1997-443, s. 11A.118(a); 2001-461, s. 5; 2002-159, s. 5; 2005-350, s. 6(b); 2013-165, s. 1; 2014-119, s. 2(c); 2015-264, s. 4.

Editor’s Note.

The bracketed words “[less than]” were inserted in subsection (d) at the direction of the Revisor of Statutes.

Session Laws 1995, c. 241, s. 2, provides that subsection (e), as enacted by that act, does not affect local ordinances adopted before September 1, 1995.

Session Laws 2013-165, s. 2 provides: “Nothing in this act shall be construed to affect the taxation of tobacco products, tobacco-derived products, vapor products, or components of a vapor product.”

Session Laws 2013-165, s. 3, is a severability clause.

Effect of Amendments.

Session Laws 2005-350, s. 6(b), effective September 7, 2005, in subsection (b), in the second paragraph, deleted the former third sentence, which read: “Proof that the defendant demanded, was shown, and reasonably relied upon proof of age in the case of a retailer, or any other documentary or written evidence of age in the case of a nonretailer, or that the defendant relied on the electronic system established and operated by the Division of Motor Vehicles pursuant to G.S. 20-37.02 , shall be a defense to any action brought under this subsection.,” added the present fourth sentence, and subdivisions (b)(1) through (b)(3).

Session Laws 2013-165, s. 1, effective August 1, 2013, added “tobacco-derived products, vapor products, and cigarette wrapping papers” to the section heading; added subdivisions (a)(3a) and (a)(5) and subsection (b2); added the last sentence in subdivision (a)(4); in subsection (b), substituted “person under the age of” for “person, less than” in the introductory paragraph, and inserted “TOBACCO-DERIVED PRODUCTS, VAPOR PRODUCTS, AND CIGARETTE WRAPPING PAPERS” in the sign following the introductory paragraph, in the introductory language of the second paragraph inserted “or cigarette wrapping papers” in the first and third sentences; in subsection (b1), substituted “Distribution of tobacco products” for “Vending machines” in the subsection heading, and added the present sixth sentence; added “provided, however, that it shall not be unlawful for an employee to purchase or accept receipt of tobacco products or cigarette wrapping papers when required in the performance of the employee’s duties” at the end of subsection (c); in the subsection heading of subsection (d), substituted “Sending or assisting a person 18” for “Send or assist person less than 18” and substituted “products or cigarette wrapping papers” for “product” at the end; in subsection (e), inserted “and cigarette wrapping papers” in the first sentence, and in the second sentence, inserted “(i)” and “or (ii) tobacco-derived products or vapor products on or after August 1, 2013”; and made minor punctuation changes in subdivision (a)(1). For applicability, see Editor’s note.

Session Laws 2014-119, s. 2(c), effective December 1, 2014, substituted “Deferred Prosecution or Conditional Discharge. — Notwithstanding G.S. 15A-1341(a1) or G.S. 15A-1341(a4), any person charged with a misdemeanor under this section shall be qualified for deferred prosecution or a conditional discharge” for “Deferred prosecution. — Notwithstanding G.S. 15A-1341(a1), any person charged with a misdemeanor under this section shall be qualified for deferred prosecution” in subsection (f).

Session Laws 2015-264, s. 4, effective October 1, 2015, substituted “G.S. 20-37.7” for “G.S. 20-377.7” in subdivision (b)(3); and substituted “this section” for “G.S. 14-313” at the end of the first sentence in subsection (e).

CASE NOTES

Search And Seizure. —

Officer had reasonable suspicion to approach defendant juvenile and her companions because the officer had something more than reasonable suspicion that defendant was in violation of G.S. 14-313(c); the officer saw defendant smoking a cigarette while carrying a pack of cigarettes in her hand and verified that defendant was only fifteen years old. In re V.C.R., 227 N.C. App. 80, 742 S.E.2d 566, 2013 N.C. App. LEXIS 484 (2013).

OPINIONS OF ATTORNEY GENERAL

Applicable to State Training Schools. — See opinion of Attorney General to Mr. James M. Paige, Office of Youth Development, 42 N.C. Op. Att'y Gen. 203 (1973).

§ 14-314. [Repealed]

Repealed by Session Laws 1971, c. 31.

§ 14-315. Selling or giving weapons to minors.

  1. Sale of Weapons Other Than Handguns. —  If a person sells, offers for sale, gives, or in any way transfers to a minor any pistol cartridge, brass knucks, bowie knife, dirk, shurikin, leaded cane, or slungshot, the person is guilty of a Class 1 misdemeanor and, in addition, shall forfeit the proceeds of any sale made in violation of this section. (a1) Sale of Handguns. — If a person sells, offers for sale, gives, or in any way transfers to a minor any handgun as defined in G.S. 14-269.7 , the person is guilty of a Class H felony and, in addition, shall forfeit the proceeds of any sale made in violation of this section. This section does not apply in any of the following circumstances:
    1. The handgun is lent to a minor for temporary use if the minor’s possession of the handgun is lawful under G.S. 14-269.7 and G.S. 14-316 and is not otherwise unlawful.
    2. The handgun is transferred to an adult custodian pursuant to Chapter 33A of the General Statutes, and the minor does not take possession of the handgun except that the adult custodian may allow the minor temporary possession of the handgun in circumstances in which the minor’s possession of the handgun is lawful under G.S. 14-269.7 and G.S. 14-316 and is not otherwise unlawful.
    3. The handgun is a devise and is distributed to a parent or guardian under G.S. 28A-22-7 , and the minor does not take possession of the handgun except that the parent or guardian may allow the minor temporary possession of the handgun in circumstances in which the minor’s possession of the handgun is lawful under G.S. 14-269.7 and G.S. 14-316 and is not otherwise unlawful.
  2. Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 597, s. 2. (b1) Defense. — It shall be a defense to a violation of this section if all of the following conditions are met:
    1. The person shows that the minor produced an apparently valid permit to receive the weapon, if such a permit would be required under G.S. 14-402 for transfer of the weapon to an adult.
    2. The person reasonably believed that the minor was not a minor.
    3. The person either:
      1. Shows that the minor produced a drivers license, a special identification card issued under G.S. 20-37.7 , a military identification card, or a passport, showing the minor’s age to be at least the required age for purchase and bearing a physical description of the person named on the card reasonably describing the minor; or
      2. Produces evidence of other facts that reasonably indicated at the time of sale that the minor was at least the required age.

History. 1893, c. 514; Rev., s. 3832; C.S., s. 4440; 1985, c. 199; 1993, c. 259, s. 3; 1993, c. 539, s. 217; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 597, s. 2; 1996, 2nd Ex. Sess., c. 18, s. 20.13(b); 2011-284, s. 9; 2013-369, s. 18.

Editor’s Note.

Session Laws 2013-369, s. 28, provides: “Sections 1 through 6, 14 through 16, 18, 21, 23, 25, and 26 of this act become effective October 1, 2013, and apply to offenses committed on or after that date. Section 17.3 and this section are effective when they become law. Section 27 of this act becomes effective October 1, 2013, and applies to any judgment entered for a felony conviction on or after that date. Except as otherwise provided in this act, the remainder of this act becomes effective October 1, 2013. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2011-284, s. 9, effective June 24, 2011, deleted “or legacy” following “devise” in subdivision (a1)(3).

Session Laws 2013-369, s. 18, effective October 1, 2013, deleted “or G.S. 14-409.1 ” following “G.S. 14-402” in subdivision (b1)(1). For applicability, see Editor’s note.

§ 14-315.1. Storage of firearms to protect minors.

  1. Any person who resides in the same premises as a minor, owns or possesses a firearm, and stores or leaves the firearm (i) in a condition that the firearm can be discharged and (ii) in a manner that the person knew or should have known that an unsupervised minor would be able to gain access to the firearm, is guilty of a Class 1 misdemeanor if a minor gains access to the firearm without the lawful permission of the minor’s parents or a person having charge of the minor and the minor:
    1. Possesses it in violation of G.S. 14-269.2(b) ;
    2. Exhibits it in a public place in a careless, angry, or threatening manner;
    3. Causes personal injury or death with it not in self defense; or
    4. Uses it in the commission of a crime.
  2. Nothing in this section shall prohibit a person from carrying a firearm on his or her body, or placed in such close proximity that it can be used as easily and quickly as if carried on the body.
  3. This section shall not apply if the minor obtained the firearm as a result of an unlawful entry by any person.
  4. “Minor” as used in this section means a person under 18 years of age who is not emancipated.

History. 1993, c. 558, s. 2; 1994, Ex. Sess., c. 14, s. 11.

CASE NOTES

Involuntary Manslaughter. —

Trial court did not err in denying defendant’s motion to dismiss the charge of involuntary manslaughter because the State presented substantial evidence that defendant’s improper storage of a firearm in violation of G.S. 14-315.1 was the proximate cause of his son’s death; the State presented sufficient evidence that the son died from a self-inflicted gunshot wound because defendant improperly stored his firearm. State v. Lewis, 222 N.C. App. 747, 732 S.E.2d 589, 2012 N.C. App. LEXIS 1080 (2012).

Motion To Dismiss Properly Denied. —

Trial court properly denied defendant’s motion to dismiss the charge for improper storage of a firearm in violation of G.S. 14-315.1(a) because a handgun was left in such a manner that defendant’s son was able to access and discharge it within ten seconds or less of discovering it; defendant’s wife testified that defendant was responsible for storing the handgun and was the last person seen with the handgun the night before the incident. State v. Lewis, 222 N.C. App. 747, 732 S.E.2d 589, 2012 N.C. App. LEXIS 1080 (2012).

§ 14-315.2. Warning upon sale or transfer of firearm to protect minor.

  1. Upon the retail commercial sale or transfer of any firearm, the seller or transferor shall deliver a written copy of G.S. 14-315.1 to the purchaser or transferee.
  2. Any retail or wholesale store, shop, or sales outlet that sells firearms shall conspicuously post at each purchase counter the following warning in block letters not less than one inch in height the phrase: “IT IS UNLAWFUL TO STORE OR LEAVE A FIREARM THAT CAN BE DISCHARGED IN A MANNER THAT A REASONABLE PERSON SHOULD KNOW IS ACCESSIBLE TO A MINOR.”
  3. A violation of subsection (a) or (b) of this section is a Class 1 misdemeanor.

History. 1993, c. 558, s. 2; 1994, Ex. Sess., c. 14, s. 12.

§ 14-316. Permitting young children to use dangerous firearms.

  1. It shall be unlawful for any person to knowingly permit a child under the age of 12 years to have access to, or possession, custody or use in any manner whatever, of any gun, pistol or other dangerous firearm, whether such weapon be loaded or unloaded, unless the person has the permission of the child’s parent or guardian, and the child is under the supervision of an adult. Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor.
  2. Air rifles, air pistols, and BB guns shall not be deemed “dangerous firearms” within the meaning of subsection (a) of this section except in the following counties: Caldwell, Durham, Forsyth, Gaston, Haywood, Mecklenburg, Stokes, Union, Vance.

History. 1913, c. 32; C.S., s. 4441; 1965, c. 813; 1971, c. 309; 1993, c. 539, s. 218; 1994, Ex. Sess., c. 24, s. 14(c); 2013-369, s. 4; 2014-119, s. 10(a).

Editor’s Note.

Session Laws 2013-369, s. 28, provides: “Sections 1 through 6, 14 through 16, 18, 21, 23, 25, and 26 of this act become effective October 1, 2013, and apply to offenses committed on or after that date. Section 17.3 and this section are effective when they become law. Section 27 of this act becomes effective October 1, 2013, and applies to any judgment entered for a felony conviction on or after that date. Except as otherwise provided in this act, the remainder of this act becomes effective October 1, 2013. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2014-119, s. 10(b), made the amendment to this section by Session Laws 2014-119, s. 10(a), applicable to offenses committed on or after December 1, 2014.

Effect of Amendments.

Session Laws 2013-369, s. 4, effective October 1, 2013, in subsection (a), rewrote the first sentence, which read: “It shall be unlawful for any parent, guardian, or person standing in loco parentis, to knowingly permit his child under the age of 12 years to have the possession, custody or use in any manner whatever, any gun, pistol or other dangerous firearm, whether such weapon be loaded or unloaded, except when such child is under the supervision of the parent, guardian or person standing in loco parentis” and deleted the second sentence, which read “It shall be unlawful for any other person to knowingly furnish such child any weapon enumerated herein.” For applicability, see Editor’s note.

Session Laws 2014-119, s. 10(a), effective December 1, 2014, deleted the following counties from subsection (b), “Anson, Caswell, Chowan, Cleveland, Cumberland, Harnett, Stanly, Surry”. See Editor’s note for applicability.

CASE NOTES

Store was in full compliance with this section when it sold a 12-year-old a BB gun. Rosser ex rel. Brown v. Wal-Mart Stores, Inc., 947 F. Supp. 903, 1996 U.S. Dist. LEXIS 18570 (E.D.N.C. 1996).

§ 14-316.1. Contributing to delinquency and neglect by parents and others. [Effective until January 1, 2023]

Any person who is at least 18 years old who knowingly or willfully causes, encourages, or aids any juvenile within the jurisdiction of the court to be in a place or condition, or to commit an act whereby the juvenile could be adjudicated delinquent, undisciplined, abused, or neglected as defined by G.S. 7B-101 and G.S. 7B-1501 shall be guilty of a Class 1 misdemeanor.

It is not necessary for the district court exercising juvenile jurisdiction to make an adjudication that any juvenile is delinquent, undisciplined, abused, or neglected in order to prosecute a parent or any person, including an employee of the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety under this section. An adjudication that a juvenile is delinquent, undisciplined, abused, or neglected shall not preclude a subsequent prosecution of a parent or any other person including an employee of the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, who contributes to the delinquent, undisciplined, abused, or neglected condition of any juvenile.

History. 1919, c. 97, s. 19; C.S., s. 5057; 1959, c. 1284; 1969, c. 911, s. 4; 1971, c. 1180, s. 5; 1979, c. 692; 1983, c. 175, ss. 8, 10; c. 720, s. 4; 1993, c. 539, s. 219; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.118(a); 1998-202, s. 4(b); 2000-137, s. 4(c); 2011-145, s. 19.1(l); 2017-57, s. 16D.4(p); 2017-186, s. 2(ii); 2018-142, s. 23(b).

Editor’s Note.

This section formerly appeared as G.S. 110-39 . It was transferred to its present position by Session Laws 1969, c. 911, s. 4.

Session Laws 2017-57, s. 16D(tt), as amended by Session Laws 2018-142, s. 23(b), provides: “Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions.”

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”

Session Laws 2017-57, s. 16D.4(p), substituted “18 years old” for “16 years old” in the first paragraph. For effective date and applicability, see editor’s note.

Session Laws 2017-186, s. 2(ii), effective December 1, 2017, substituted “Juvenile Justice Section of the Division of Adult Correction and” for “Division of” twice in the second paragraph.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For note on the indigent parent’s right to state furnished counsel in parental status termination proceedings, see 17 Wake Forest L. Rev. 961 (1981).

For note discussing a new means to combat child abuse in light of State v. Walden, 306 N.C. 466 , 293 S.E.2d 780 (1982), see 5 Campbell L. Rev. 415 (1983).

For comment, “The Child Abuse Amendments of 1984: Congress is Calling North Carolina to Respond to the Baby Doe Dilemma,” 20 Wake Forest L. Rev. 975 (1984).

For article, “Evolutionary Analysis in Law: An Introduction and Application to Child Abuse,” see 75 N.C.L. Rev. 1117 (1997).

CASE NOTES

This section is not unconstitutional for vagueness. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).

The words used in this section are ordinary words in common usage, and adequate warning is provided those inclined to violate them. Simply stated, any person who knowingly does any act to produce, promote or contribute to any condition of delinquency of a child is in violation of the section. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).

Second-Degree Rape Is a Separate and Distinct Crime. —

Even though the crimes of second-degree rape and contributing to the delinquency of a minor are related in character and grow out of the same transaction, they are legally distinct and separate crimes. The prosecution for one is not a bar to a prosecution for the other. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

It is clear from the statutory definition of the two crimes described in this section and G.S. 14-27.3 that all of the essential elements of the offense of second-degree rape are not essential to the offense of contributing to the delinquency of a minor. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Contributing to Delinquency of a Minor Not Lesser Included Offense of Second-Degree Rape. —

The act of sexual intercourse is not inherent to the crime of contributing to the delinquency of a minor under this section. Therefore, this offense is not a lesser included offense of second-degree rape pursuant to G.S. 14-27.3 . State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Double Jeopardy Not Shown. —

At trial on charges of second-degree rape, the defendant was furnished with an opportunity to plead and offer evidence to sustain his plea of former jeopardy by proving that the sexual act at issue, not the alcohol-related instances were the basis of his earlier plea of guilty to contributing to the delinquency of a minor, based upon the same factual circumstances. This, however, defendant failed to do. Thus, defendant’s assertion that the factual basis for the acceptance of his guilty plea was solely based upon the sexual act was too speculative and wholly insufficient to establish his burden of proof. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Unanimous Verdict. —

When defendant was convicted of contributing to the delinquency of a minor under G.S. 14-316.1 , a jury did not have to unanimously agree as to the act that defendant encouraged or assisted the minor involved in the crime to commit, for which the juvenile could be adjudicated a delinquent, as long as it agreed that he encouraged or assisted the juvenile in the performance of such an act, because a conviction properly resulted from producing, promoting or contributing to any condition of delinquency, and the crime’s gravamen was defendant’s conduct, rather than that of the juvenile. State v. Cousart, 182 N.C. App. 150, 641 S.E.2d 372, 2007 N.C. App. LEXIS 493 (2007).

Proof of Delinquency Not Required. —

Statutes such as this section are preventive as well as punitive in nature and it is not necessary to allege or prove that the child in fact is or has become a delinquent. State v. Worley, 13 N.C. App. 198, 185 S.E.2d 270, 1971 N.C. App. LEXIS 1191 (1971).

This section does not require that the creation of a state of delinquency be accomplished; the legislative intent was to protect children from wrongful influence by adults, and in protection of minors the State should not await the result of the wrong perpetrated before punishing the offender. State v. Worley, 13 N.C. App. 198, 185 S.E.2d 270, 1971 N.C. App. LEXIS 1191 (1971).

Conviction of Minor Not Required. —

It is not necessary that a minor be convicted of the charges contained in a juvenile petition before a person may be prosecuted under this section for contributing to the delinquency of the minor. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).

Duty of Parents to Protect and Provide for Minor Children. —

Parents in this State have an affirmative legal duty to protect and provide for their minor children. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Imposition of Duty to Prevent Harm to Child Is Reasonable. —

To require a parent as a matter of law to take affirmative action to prevent harm to his or her child or be held criminally liable imposes a reasonable duty upon the parent; this duty is and has always been inherent in the duty of parents to provide for the safety and welfare of their children, which duty has long been recognized by the common law and by statute. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

And Requires Reasonable Steps to Prevent Harm. —

While parents do not have the legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children, parents do have the duty to take every step reasonably possible under the circumstances of a given situation to prevent harm to their children. What is reasonable in any given case will be a question for the jury after proper instructions from the trial court. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Failure to Protect Child from Assault. —

A mother may be found guilty of assault on a theory of aiding and abetting solely on the basis that she was present when her child was assaulted but failed to take reasonable steps to prevent the assault. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

The failure of a parent who is present to take all steps reasonably possible to protect the parent’s child from an attack by another person constitutes an act of omission by the parent showing the parent’s consent and contribution to the crime being committed. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Trial court properly allowed the jury to consider a verdict of guilty of assault with a deadly weapon inflicting serious injury, upon a theory of aiding and abetting, solely on the ground that defendant mother was present when her child was brutally beaten by third party but failed to take all steps reasonable to prevent the attack or otherwise protect the child from injury. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Neglect Resulting in Death of Child As Involuntary Manslaughter. —

Where evidence was sufficient to show that the child’s death resulted from the culpably negligent omission of defendants to perform their legal duty with respect to the child, the trial court did not err in overruling defendants’ motions for nonsuit as to involuntary manslaughter. State v. Mason, 18 N.C. App. 433, 197 S.E.2d 79, 1973 N.C. App. LEXIS 1893 , cert. denied, 283 N.C. 669 , 197 S.E.2d 878, 1973 N.C. LEXIS 1052 (1973).

Evidence Improperly Used. —

Three reasons enumerated by the trial court were proper reasons to allow in the evidence of another child’s death while under defendant’s care in defendant’s trial for misdemeanor child abuse and contributing to the delinquency of a minor, and it could not be said that the ruling was so arbitrary that it was not the result of a reasoned decision; however, the State’s use of the evidence regarding the other child went beyond the purposes for which the trial court admitted the evidence and the State improperly argued that defendant had the propensity to leave young children unattended, resulting in death by drowning.

Sufficient Evidence. —

Evidence that defendant entered the bedroom where the victim was attempting to sleep, tried to get her to drink liquor, played with her hair, squeezed her buttocks, and requested that he allow her to suck on her chest was sufficient to show that defendant put the victim in a position to be abused or neglected, as required to show he was a caretaker and contributed to the abuse and neglect of a juvenile. State v. Harris, 236 N.C. App. 388, 763 S.E.2d 302, 2014 N.C. App. LEXIS 1000 (2014).

Evidence Sufficient for Conviction. —

Evidence that defendant took the juvenile away from the area near his home, ignored the juvenile when he was injured, and abandoned the sleeping juvenile in a parking lot was sufficient to support the trial court’s denial of defendant’s motion to dismiss the charge of contributing to the neglect of a juvenile under G.S. 14-316.1 . State v. Stevens, 228 N.C. App. 352, 745 S.E.2d 64, 2013 N.C. App. LEXIS 763 (2013).

State’s theory was that it did not matter that the child’s father was present, but he had an equal duty to supervise and care for the child, and it was not shown that defendant knowingly or willfully left the child in a place or condition where she would not receive proper care or supervision from a parent; there was no evidence that defendant reasonably should have known that the father was in any way incompetent to supervise the child when she went to the bathroom, and defendant’s motion to dismiss the charge of contributing to the delinquency of a minor should have been granted.

Defendant was not denied his right against double jeopardy by his conviction in superior court of child neglect in violation of this section after a judgment of nonsuit was entered in a prosecution of defendant in the district court for child abuse in violation of G.S. 14-318.2 . State v. Hunter, 48 N.C. App. 656, 270 S.E.2d 120, 1980 N.C. App. LEXIS 3304 (1980).

Acquittal Not A Bar to Use of Sentencing Aggravator. —

In a case alleging that defendant had used a 13 year old boy to sell drugs, a jury’s acquittal of charges of contributing to the delinquency of a minor, G.S. 14-316.1 , and employing and using a minor to commit a controlled substance offense, G.S. 90-95.4 , did not mean that the jury found there was insufficient evidence that the boy was a minor; by convicting defendant of conspiracy to sell a controlled substance, the jury found that defendant and the boy were conspirators, and the trial court’s consideration as an aggravating sentencing factor that defendant involved a person under 16 years of age in the commission of a crime was proper. State v. Boyd, 162 N.C. App. 159, 595 S.E.2d 697, 2004 N.C. App. LEXIS 15 (2004).

§ 14-316.1. Contributing to delinquency and neglect by parents and others. [Effective January 1, 2023]

Any person who is at least 18 years old who knowingly or willfully causes, encourages, or aids any juvenile within the jurisdiction of the court to be in a place or condition, or to commit an act whereby the juvenile could be adjudicated delinquent, undisciplined, abused, or neglected as defined by G.S. 7B-101 and G.S. 7B-1501 shall be guilty of a Class 1 misdemeanor.

It is not necessary for the district court exercising juvenile jurisdiction to make an adjudication that any juvenile is delinquent, undisciplined, abused, or neglected in order to prosecute a parent or any person, including an employee of the Division of Juvenile Justice of the Department of Public Safety under this section. An adjudication that a juvenile is delinquent, undisciplined, abused, or neglected shall not preclude a subsequent prosecution of a parent or any other person including an employee of the Division of Juvenile Justice of the Department of Public Safety, who contributes to the delinquent, undisciplined, abused, or neglected condition of any juvenile.

History. 1919, c. 97, s. 19; C.S., s. 5057; 1959, c. 1284; 1969, c. 911, s. 4; 1971, c. 1180, s. 5; 1979, c. 692; 1983, c. 175, ss. 8, 10; c. 720, s. 4; 1993, c. 539, s. 219; 1994, Ex. Sess., c. 24, s. 14(c); 1997-443, s. 11A.118(a); 1998-202, s. 4(b); 2000-137, s. 4(c); 2011-145, s. 19.1(l); 2017-57, s. 16D.4(p); 2017-186, s. 2(ii); 2018-142, s. 23(b); 2021-180, s. 19C.9(z).

Editor’s Note.

This section formerly appeared as G.S. 110-39 . It was transferred to its present position by Session Laws 1969, c. 911, s. 4.

Session Laws 2017-57, s. 16D(tt), as amended by Session Laws 2018-142, s. 23(b), provides: “Sections 16D.4(a) through 16D.4(s) of this act become effective December 1, 2019, and apply to offenses committed on or after that date. Sections 16D.4(t) through 16D.4(x) of this act become effective October 1, 2017, and Sections 16D.4(t) through 16D.4(w) apply to all complaints filed on or after that date. Except as otherwise provided in this section, the remainder of this section is effective when it becomes law. Prosecutions or delinquency proceedings initiated for offenses committed before any particular subsection of this section becomes effective are not abated or affected by this act, and the statutes that are in effect on the dates the offenses are committed remain applicable to those prosecutions.”

Session Laws 2017-57, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2017.’ ”

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to this section by Session Laws 2021-180, s. 19C.9(z), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws 2011-145, s. 19.1( l ), effective January 1, 2012, substituted “Division of Juvenile Justice of the Department of Public Safety” for “Department of Juvenile Justice and Delinquency Prevention.”

Session Laws 2017-57, s. 16D.4(p), substituted “18 years old” for “16 years old” in the first paragraph. For effective date and applicability, see editor’s note.

Session Laws 2017-186, s. 2(ii), effective December 1, 2017, substituted “Juvenile Justice Section of the Division of Adult Correction and” for “Division of” twice in the second paragraph.

Session Laws 2021-180, s. 19C.9(z), substituted “Division of Juvenile Justice” for “Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice” twice in the second paragraph. For effective date and applicability, see editor's note.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For note on the indigent parent’s right to state furnished counsel in parental status termination proceedings, see 17 Wake Forest L. Rev. 961 (1981).

For note discussing a new means to combat child abuse in light of State v. Walden, 306 N.C. 466 , 293 S.E.2d 780 (1982), see 5 Campbell L. Rev. 415 (1983).

For comment, “The Child Abuse Amendments of 1984: Congress is Calling North Carolina to Respond to the Baby Doe Dilemma,” 20 Wake Forest L. Rev. 975 (1984).

For article, “Evolutionary Analysis in Law: An Introduction and Application to Child Abuse,” see 75 N.C.L. Rev. 1117 (1997).

CASE NOTES

This section is not unconstitutional for vagueness. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).

The words used in this section are ordinary words in common usage, and adequate warning is provided those inclined to violate them. Simply stated, any person who knowingly does any act to produce, promote or contribute to any condition of delinquency of a child is in violation of the section. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).

Second-Degree Rape Is a Separate and Distinct Crime. —

Even though the crimes of second-degree rape and contributing to the delinquency of a minor are related in character and grow out of the same transaction, they are legally distinct and separate crimes. The prosecution for one is not a bar to a prosecution for the other. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

It is clear from the statutory definition of the two crimes described in this section and G.S. 14-27.3 that all of the essential elements of the offense of second-degree rape are not essential to the offense of contributing to the delinquency of a minor. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Contributing to Delinquency of a Minor Not Lesser Included Offense of Second-Degree Rape. —

The act of sexual intercourse is not inherent to the crime of contributing to the delinquency of a minor under this section. Therefore, this offense is not a lesser included offense of second-degree rape pursuant to G.S. 14-27.3 . State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Double Jeopardy Not Shown. —

At trial on charges of second-degree rape, the defendant was furnished with an opportunity to plead and offer evidence to sustain his plea of former jeopardy by proving that the sexual act at issue, not the alcohol-related instances were the basis of his earlier plea of guilty to contributing to the delinquency of a minor, based upon the same factual circumstances. This, however, defendant failed to do. Thus, defendant’s assertion that the factual basis for the acceptance of his guilty plea was solely based upon the sexual act was too speculative and wholly insufficient to establish his burden of proof. State v. Cronan, 100 N.C. App. 641, 397 S.E.2d 762, 1990 N.C. App. LEXIS 1130 (1990).

Unanimous Verdict. —

When defendant was convicted of contributing to the delinquency of a minor under G.S. 14-316.1 , a jury did not have to unanimously agree as to the act that defendant encouraged or assisted the minor involved in the crime to commit, for which the juvenile could be adjudicated a delinquent, as long as it agreed that he encouraged or assisted the juvenile in the performance of such an act, because a conviction properly resulted from producing, promoting or contributing to any condition of delinquency, and the crime’s gravamen was defendant’s conduct, rather than that of the juvenile. State v. Cousart, 182 N.C. App. 150, 641 S.E.2d 372, 2007 N.C. App. LEXIS 493 (2007).

Proof of Delinquency Not Required. —

Statutes such as this section are preventive as well as punitive in nature and it is not necessary to allege or prove that the child in fact is or has become a delinquent. State v. Worley, 13 N.C. App. 198, 185 S.E.2d 270, 1971 N.C. App. LEXIS 1191 (1971).

This section does not require that the creation of a state of delinquency be accomplished; the legislative intent was to protect children from wrongful influence by adults, and in protection of minors the State should not await the result of the wrong perpetrated before punishing the offender. State v. Worley, 13 N.C. App. 198, 185 S.E.2d 270, 1971 N.C. App. LEXIS 1191 (1971).

Conviction of Minor Not Required. —

It is not necessary that a minor be convicted of the charges contained in a juvenile petition before a person may be prosecuted under this section for contributing to the delinquency of the minor. State v. Sparrow, 276 N.C. 499 , 173 S.E.2d 897, 1970 N.C. LEXIS 716 (1970).

Duty of Parents to Protect and Provide for Minor Children. —

Parents in this State have an affirmative legal duty to protect and provide for their minor children. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Imposition of Duty to Prevent Harm to Child Is Reasonable. —

To require a parent as a matter of law to take affirmative action to prevent harm to his or her child or be held criminally liable imposes a reasonable duty upon the parent; this duty is and has always been inherent in the duty of parents to provide for the safety and welfare of their children, which duty has long been recognized by the common law and by statute. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

And Requires Reasonable Steps to Prevent Harm. —

While parents do not have the legal duty to place themselves in danger of death or great bodily harm in coming to the aid of their children, parents do have the duty to take every step reasonably possible under the circumstances of a given situation to prevent harm to their children. What is reasonable in any given case will be a question for the jury after proper instructions from the trial court. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Failure to Protect Child from Assault. —

A mother may be found guilty of assault on a theory of aiding and abetting solely on the basis that she was present when her child was assaulted but failed to take reasonable steps to prevent the assault. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

The failure of a parent who is present to take all steps reasonably possible to protect the parent’s child from an attack by another person constitutes an act of omission by the parent showing the parent’s consent and contribution to the crime being committed. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Trial court properly allowed the jury to consider a verdict of guilty of assault with a deadly weapon inflicting serious injury, upon a theory of aiding and abetting, solely on the ground that defendant mother was present when her child was brutally beaten by third party but failed to take all steps reasonable to prevent the attack or otherwise protect the child from injury. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Neglect Resulting in Death of Child As Involuntary Manslaughter. —

Where evidence was sufficient to show that the child’s death resulted from the culpably negligent omission of defendants to perform their legal duty with respect to the child, the trial court did not err in overruling defendants’ motions for nonsuit as to involuntary manslaughter. State v. Mason, 18 N.C. App. 433, 197 S.E.2d 79, 1973 N.C. App. LEXIS 1893 , cert. denied, 283 N.C. 669 , 197 S.E.2d 878, 1973 N.C. LEXIS 1052 (1973).

Evidence Improperly Used. —

Three reasons enumerated by the trial court were proper reasons to allow in the evidence of another child’s death while under defendant’s care in defendant’s trial for misdemeanor child abuse and contributing to the delinquency of a minor, and it could not be said that the ruling was so arbitrary that it was not the result of a reasoned decision; however, the State’s use of the evidence regarding the other child went beyond the purposes for which the trial court admitted the evidence and the State improperly argued that defendant had the propensity to leave young children unattended, resulting in death by drowning.

Sufficient Evidence. —

Evidence that defendant entered the bedroom where the victim was attempting to sleep, tried to get her to drink liquor, played with her hair, squeezed her buttocks, and requested that he allow her to suck on her chest was sufficient to show that defendant put the victim in a position to be abused or neglected, as required to show he was a caretaker and contributed to the abuse and neglect of a juvenile. State v. Harris, 236 N.C. App. 388, 763 S.E.2d 302, 2014 N.C. App. LEXIS 1000 (2014).

Evidence Sufficient for Conviction. —

Evidence that defendant took the juvenile away from the area near his home, ignored the juvenile when he was injured, and abandoned the sleeping juvenile in a parking lot was sufficient to support the trial court’s denial of defendant’s motion to dismiss the charge of contributing to the neglect of a juvenile under G.S. 14-316.1 . State v. Stevens, 228 N.C. App. 352, 745 S.E.2d 64, 2013 N.C. App. LEXIS 763 (2013).

State’s theory was that it did not matter that the child’s father was present, but he had an equal duty to supervise and care for the child, and it was not shown that defendant knowingly or willfully left the child in a place or condition where she would not receive proper care or supervision from a parent; there was no evidence that defendant reasonably should have known that the father was in any way incompetent to supervise the child when she went to the bathroom, and defendant’s motion to dismiss the charge of contributing to the delinquency of a minor should have been granted.

Defendant was not denied his right against double jeopardy by his conviction in superior court of child neglect in violation of this section after a judgment of nonsuit was entered in a prosecution of defendant in the district court for child abuse in violation of G.S. 14-318.2 . State v. Hunter, 48 N.C. App. 656, 270 S.E.2d 120, 1980 N.C. App. LEXIS 3304 (1980).

Acquittal Not A Bar to Use of Sentencing Aggravator. —

In a case alleging that defendant had used a 13 year old boy to sell drugs, a jury’s acquittal of charges of contributing to the delinquency of a minor, G.S. 14-316.1 , and employing and using a minor to commit a controlled substance offense, G.S. 90-95.4 , did not mean that the jury found there was insufficient evidence that the boy was a minor; by convicting defendant of conspiracy to sell a controlled substance, the jury found that defendant and the boy were conspirators, and the trial court’s consideration as an aggravating sentencing factor that defendant involved a person under 16 years of age in the commission of a crime was proper. State v. Boyd, 162 N.C. App. 159, 595 S.E.2d 697, 2004 N.C. App. LEXIS 15 (2004).

§ 14-317. Permitting minors to enter barrooms or billiard rooms.

If the manager or owner of any barroom, wherein beer, wine, or any alcoholic beverages are sold or consumed, or billiard room shall knowingly allow any minor under 18 years of age to enter or remain in such barroom or billiard room, where before such minor under 18 years of age enters or remains in such barroom or billiard room, the manager or owner thereof has been notified in writing by the parents or guardian of such minor under 18 years of age not to allow him to enter or remain in such barroom or billiard room, he shall be guilty of a Class 3 misdemeanor.

History. 1897, c. 278; Rev., s. 3729; C.S., s. 4442; 1967, c. 1089; 1993, c. 539, s. 220; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-318. Exposing children to fire.

If any person shall leave any child under the age of eight years locked or otherwise confined in any dwelling, building or enclosure, and go away from such dwelling, building or enclosure without leaving some person of the age of discretion in charge of the same, so as to expose the child to danger by fire, the person so offending shall be guilty of a Class 1 misdemeanor.

History. 1893, c. 12; Rev., s. 3795; C.S., s. 4443; 1983, c. 175, s. 9, 10; c. 720, s. 4; 1993, c. 539, s. 221; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For comment, “The Child Abuse Amendments of 1984: Congress is Calling North Carolina to Respond to the Baby Doe Dilemma,” 20 Wake Forest L. Rev. 975 (1984).

§ 14-318.1. Discarding or abandoning iceboxes, etc.; precautions required.

It shall be unlawful for any person, firm or corporation to discard, abandon, leave or allow to remain in any place any icebox, refrigerator or other container, device or equipment of any kind with an interior storage area of more than one and one-half cubic feet of clear space which is airtight, without first removing the door or doors or hinges from such icebox, refrigerator, container, device or equipment. This section shall not apply to any icebox, refrigerator, container, device or equipment which is being used for the purpose for which it was originally designed, or is being used for display purposes by any retail or wholesale merchant, or is crated, strapped or locked to such an extent that it is impossible for a child to obtain access to any airtight compartment thereof. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

History. 1955, c. 305; 1993, c. 539, s. 222; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-318.2. Child abuse a misdemeanor.

  1. Any parent of a child less than 16 years of age, or any other person providing care to or supervision of such child, who inflicts physical injury, or who allows physical injury to be inflicted, or who creates or allows to be created a substantial risk of physical injury, upon or to such child by other than accidental means is guilty of the Class A1 misdemeanor of child abuse.
  2. The Class A1 misdemeanor of child abuse is an offense additional to other civil and criminal provisions and is not intended to repeal or preclude any other sanctions or remedies.
  3. A parent who abandons an infant less than seven days of age pursuant to G.S. 14-322.3 shall not be prosecuted under this section for any acts or omissions related to the care of that infant.

History. 1965, c. 472, s. 1; 1971, c. 710, s. 6; 1993, c. 539, s. 223; 1994, Ex. Sess., c. 14, s. 13; c. 24, s. 14(c); 2001-291, s. 4; 2008-191, s. 1; 2009-570, s. 6.

Editor’s Note.

Session Laws 2001-291, s. 6, provides: “The Department of Health and Human Services, Division of Public Health, shall develop recommendations for a plan to inform the public as to the provisions of this act [Session Laws 2001-291, the Infant Homicide Prevention Act, which decriminalized abandonment of an infant under seven days of age when that infant is voluntarily delivered to certain health care providers, law enforcement officials, social services personnel, or emergency medical service personnel]. The plan shall contain information on responsible parenting in addition to information about the provisions of the act. The plans shall be targeted at adolescents and young adults, and shall be developed in consultation with law enforcement officials, medical professionals, and representatives of the Department of Public Instruction. Not later than April 1, 2002, the Department of Health and Human Services shall report its recommendations, and the projected cost for implementing its recommendations, to the chairpersons of the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, the Senate Appropriations Committee on Justice and Public Safety, and the House Appropriations Subcommittee on Justice and Public Safety.”

In addition to the plan developed pursuant to Session Laws 2001-291, s. 6, Session Laws 2003-284, s. 10.8B(a) and (b), effective July 1, 2003, provides: “(a) The Department of Health and Human Services, Division of Public Health and the Division of Social Services, shall incorporate education and awareness of the Infant Homicide Prevention Act pursuant to S.L. 2001-291, into other State-funded programs at the local level.

“(b) The Department shall report on its activities to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division not later than April 1, 2004.”

Session Laws 2008-191, s. 3, provides: “This act becomes effective December 1, 2008, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2009-570, s. 6, effective August 28, 2009, deleted “Class 1” preceding “misdemeanor” in the section heading.

Legal Periodicals.

For article reviewing the development of protective services for children in this State, see 54 N.C.L. Rev. 743 (1976).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For survey of 1982 law relating to criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note discussing a new means to combat child abuse in light of State v. Walden, 306 N.C. 466 , 293 S.E.2d 780 (1982), see 5 Campbell L. Rev. 415 (1983).

For comment, “The Child Abuse Amendments of 1984: Congress is Calling North Carolina to Respond to the Baby Doe Dilemma,” 20 Wake Forest L. Rev. 975 (1984).

For article, “In Re R.R.N.: Redefining ‘Caretaker’ for North Carolina Child Protective Services,” see 40 Campbell L. Rev. 265 (2018).

CASE NOTES

Analysis

I.In General

Standing to Challenge Constitutionality. —

Where defendant’s case was submitted to the jury only on the issue of whether defendant actually inflicted her child’s injuries, defendant could not complain of alleged unconstitutional vagueness in the provision of this section making it a criminal offense to create or allow to be created a substantial risk of physical injury upon a child since provisions of this section are severable. State v. Fredell, 17 N.C. App. 205, 193 S.E.2d 587, 1972 N.C. App. LEXIS 1624 (1972), aff'd, 283 N.C. 242 , 195 S.E.2d 300, 1973 N.C. LEXIS 937 (1973).

Child Abuse Is Not a Lesser Included Offense. —

The General Assembly did not intend child abuse to be a lesser included offense, or to merge with any other offense. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

Neither § 14-32(b) nor this section proscribes a crime which is a lesser included offense of the other, and conviction or acquittal of one will not support a plea of former jeopardy against a charge for violation of the other. State v. Walden, 306 N.C. 466 , 293 S.E.2d 780, 1982 N.C. LEXIS 1489 (1982).

Charges of child abuse and child neglect were not merged into a charge of second-degree murder. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980).

Conviction Under G.S. 14-316.1 After Nonsuit Under This Section. —

Defendant was not denied his right against double jeopardy by his conviction in superior court of child neglect in violation of G.S. 14-316.1 after a judgment of nonsuit was entered in a prosecution of defendant in the district court for child abuse in violation of this section. State v. Hunter, 48 N.C. App. 656, 270 S.E.2d 120, 1980 N.C. App. LEXIS 3304 (1980).

Parents have the duty to take every step reasonably possible under the circumstances to prevent harm to their children. Failure to perform this duty is negligence. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, 1988 N.C. App. LEXIS 281 (1988).

Foreseeability. —

While foreseeability is not an element of misdemeanor child abuse, it is difficult to engage in an analysis of when behavior crosses the line from “accident” to “nonaccidental” without consideration of it; furthermore, an accidental cause is not foreseen.

Court’s Duty on Review of Denial of Motion to Dismiss. —

The Court of Appeals improperly considered exculpatory evidence presented by the defendant in reversing the trial court’s denial of defendant’s motions to dismiss where the State presented substantial evidence of involuntary manslaughter and felonious or misdemeanor child abuse sufficient to survive defendant’s motions to dismiss. State v. Fritsch, 351 N.C. 373 , 526 S.E.2d 451, 2000 N.C. LEXIS 241 , cert. denied, 531 U.S. 890, 121 S. Ct. 213, 148 L. Ed. 2d 150, 2000 U.S. LEXIS 6104 (2000).

Review on Denial of Motion to Dismiss. —

Defendant’s motion to dismiss the misdemeanor child abuse charge could only have been properly denied if there was substantial evidence demonstrating that on the day in question, defendant committed some act or omission that created or allowed to be created a substantial risk of physical injury to the child; defendant’s evidence was entirely consistent with the State’s evidence, and thus had to be considered on appeal from the denial of the defendant’s motion.

Sentencing. —

The aggravating factor that the defendant took advantage of a position of trust or confidence cannot be used to increase a sentence beyond the presumptive sentence for involuntary manslaughter when the manslaughter conviction could have been based on the predicate crime of misdemeanor child abuse, which has as an element that the defendant was a parent of the victim, or by a finding that defendant committed a criminally negligent act. State v. Darby, 102 N.C. App. 297, 401 S.E.2d 791, 1991 N.C. App. LEXIS 301 (1991).

II.Nature and Proof of Offense

This section provides for three separate offenses: If the parent by other than accidental means (1) inflicts physical injury upon the child, (2) allows physical injury to be inflicted upon the child, or (3) creates or allows to be created a substantial risk of physical injury. State v. Mapp, 45 N.C. App. 574, 264 S.E.2d 348, 1980 N.C. App. LEXIS 2709 (1980); State v. Byrd, 309 N.C. 132 , 305 S.E.2d 724, 1983 N.C. LEXIS 1322 (1983); State v. Woods, 70 N.C. App. 584, 321 S.E.2d 4, 1984 N.C. App. LEXIS 3726 (1984).

By the enactment of this section the General Assembly intended to provide for three separate and independent offenses, none dependent on the other; therefore, the first provision of this section, making infliction of injury upon the child by the parent himself a punishable offense, is divisible and separable from the remainder of the statute. State v. Fredell, 283 N.C. 242 , 195 S.E.2d 300, 1973 N.C. LEXIS 937 (1973).

And the State Needs to Prove Only One of the Three. —

To convict a parent of child abuse under this section it is necessary that the State prove only one of three separate and distinct acts or courses of conduct; that the parent, other than by accidental means, (1) inflicted physical injury upon the child, (2) allowed physical injury to be inflicted upon the child, or (3) created or allowed to be created a substantial risk of physical injury upon the child. State v. Fredell, 17 N.C. App. 205, 193 S.E.2d 587, 1972 N.C. App. LEXIS 1624 (1972), aff'd, 283 N.C. 242 , 195 S.E.2d 300, 1973 N.C. LEXIS 937 (1973); State v. Armistead, 54 N.C. App. 358, 283 S.E.2d 162, 1981 N.C. App. LEXIS 2821 (1981).

Injuries Must Be Inflicted Other Than by Accidental Means. —

An essential element of proof under this section is a showing that the injuries suffered by the child were inflicted by other than accidental means. State v. Byrd, 309 N.C. 132 , 305 S.E.2d 724, 1983 N.C. LEXIS 1322 (1983).

Intentional Act Is Required. —

The word “inflict” means to lay on or impose, and is aptly used in connection with punishment. Thus, to violate this section, an intentional, rather than accidental, act causing physical injury is required; but an intent to injure is not required. The phrase “accidental means” relates to unintentional acts. State v. Young, 67 N.C. App. 139, 312 S.E.2d 665, 1984 N.C. App. LEXIS 3005 (1984).

Intent to Punish as Sufficient Intent. —

Where child is injured because defendant intentionally put her in hot water, if one of defendant’s purposes in doing so was to punish the child, defendant would be guilty of misdemeanor child abuse, even though she may not have intended to cause an injury. State v. Young, 67 N.C. App. 139, 312 S.E.2d 665, 1984 N.C. App. LEXIS 3005 (1984).

A violation of this section proximately resulting in death would support a conviction of involuntary manslaughter. State v. Byrd, 309 N.C. 132 , 305 S.E.2d 724, 1983 N.C. LEXIS 1322 (1983).

The “battered child syndrome” is a medicolegal term which describes the diagnosis of a medical expert based on scientific studies that when a child suffers certain types of continuing injuries that the injuries were not caused by accidental means. Upon such a finding, it is logical to presume that someone “caring” for the child was responsible for the injuries. State v. Byrd, 309 N.C. 132 , 305 S.E.2d 724, 1983 N.C. LEXIS 1322 (1983).

For landmark case in North Carolina on the “battered child syndrome,” see State v. Wilkerson, 295 N.C. 559 , 247 S.E.2d 905, 1978 N.C. LEXIS 1070 (1978); State v. Byrd, 309 N.C. 132 , 305 S.E.2d 724, 1983 N.C. LEXIS 1322 (1983).

Evidence of Separate Incident of Abuse Held Not Prejudicial. —

Although in a prosecution for child abuse it was error to allow introduction of testimony concerning a separate incident in which defendant struck his child, the error was not prejudicial where there was ample uncontradicted evidence that defendant intentionally inflicted some physical injury on his child, and defendant failed to meet the burden of proving a reasonable probability that a different result would have occurred had the court not admitted the testimony. State v. Armistead, 54 N.C. App. 358, 283 S.E.2d 162, 1981 N.C. App. LEXIS 2821 (1981).

Evidence Held Sufficient. —

Where alleged victim of child abuse had his face burned while he was under defendant’s supervision and no other adults were present, competent medical evidence at trial was that victim’s facial burn looked like the child’s face had been immersed in a bowl or cup of liquid, and the medical evidence included an opinion that victim suffered from battered child syndrome and an opinion that he had been abused, the evidence was sufficient to take the charge to the jury. State v. Church, 99 N.C. App. 647, 394 S.E.2d 468, 1990 N.C. App. LEXIS 840 (1990).

Evidence Held Insufficient. —

While defendant was in the bathroom, her only affirmative act was to say, “Can’t I use the bathroom in peace?” and the father stepped in and removed the children from the bathroom while leaving the child in question; it could not be rationally inferred that defendant, by making the statement, engaged in conduct that would have subjected her to liability, and defendant’s consistent evidence rebutted the inference raised by the State’s evidence that she created or allowed to be created a substantial risk of injury, the trial court erred in denying the motion to dismiss, and her conviction for misdemeanor child abuse was vacated.

Dismissal Not Warranted. —

Motion to dismiss was properly denied in a case involving misdemeanor child abuse because the State’s evidence was sufficient to raise a jury question; defendant left a child under 2 years old in a vehicle outside of her line of sight for over 6 minutes; one window was rolled down, and it was very cold. State v. Watkins, 247 N.C. App. 391, 785 S.E.2d 175, 2016 N.C. App. LEXIS 496 (2016).

§ 14-318.3. [Repealed]

Repealed by Session Laws 1971, c. 710, s. 7.

§ 14-318.4. Child abuse a felony.

  1. A parent or any other person providing care to or supervision of a child less than 16 years of age who intentionally inflicts any serious physical injury upon or to the child or who intentionally commits an assault upon the child which results in any serious physical injury to the child is guilty of a Class D felony, except as otherwise provided in subsection (a3) of this section.

    (a1) Any parent of a child less than 16 years of age, or any other person providing care to or supervision of the child, who commits, permits, or encourages any act of prostitution with or by the child is guilty of child abuse and shall be punished as a Class D felon.

    (a2) Any parent or legal guardian of a child less than 16 years of age who commits or allows the commission of any sexual act upon the child is guilty of a Class D felony.

    (a3) A parent or any other person providing care to or supervision of a child less than 16 years of age who intentionally inflicts any serious bodily injury to the child or who intentionally commits an assault upon the child which results in any serious bodily injury to the child, or which results in permanent or protracted loss or impairment of any mental or emotional function of the child, is guilty of a Class B2 felony.

    (a4) A parent or any other person providing care to or supervision of a child less than 16 years of age whose willful act or grossly negligent omission in the care of the child shows a reckless disregard for human life is guilty of a Class E felony if the act or omission results in serious bodily injury to the child.

    (a5) A parent or any other person providing care to or supervision of a child less than 16 years of age whose willful act or grossly negligent omission in the care of the child shows a reckless disregard for human life is guilty of a Class G felony if the act or omission results in serious physical injury to the child.

    (a6) For purposes of this section, a “grossly negligent omission” in providing care to or supervision of a child includes the failure to report a child as missing to law enforcement as provided in G.S. 14-318.5(b).

  2. The felony of child abuse is an offense additional to other civil and criminal provisions and is not intended to repeal or preclude any other sanctions or remedies.
  3. Abandonment of an infant less than seven days of age pursuant to G.S. 14-322.3 may be treated as a mitigating factor in sentencing for a conviction under this section involving that infant.
  4. The following definitions apply in this section:
    1. Serious bodily injury. — Bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.
    2. Serious physical injury. — Physical injury that causes great pain and suffering. The term includes serious mental injury.

History. 1979, c. 897, s. 1; 1979, 2nd Sess., c. 1316, s. 18; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 653, s. 1; c. 916, s. 1; 1985, c. 509, s. 5; c. 668; 1993, c. 539, s. 1233; 1994, Ex. Sess., c. 24, s. 14(c); 1999-451, s. 1; 2001-291, s. 5; 2008-191, s. 2; 2013-35, s. 1; 2013-52, s. 3.

Editor’s Note.

Session Laws 2013-52, s. 1, provides: “This act may be cited as ‘Caylee’s Law.”’

Effect of Amendments.

Session Laws 2013-35, s. 1, effective December 1, 2013, substituted “Class D” for “Class E” in subsections (a), (a1), and (a2); substituted “Class B2” for “Class C” in subsection (a3); and substituted “Class G” for “Class H” in subsection (a5). For applicability, see Editor’s note.

Session Laws 2013-52, s. 3, effective December 1, 2013, added subsection (a6). For effective date and applicability, see Editor’s note.

Legal Periodicals.

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For article on a model act to prevent the sexual exploitation of children, see 17 Wake Forest L. Rev. 535 (1981).

For survey of 1982 law on Criminal Procedure, see 61 N.C.L. Rev. 1090 (1983).

For note discussing a new means to combat child abuse in light of State v. Walden, 306 N.C. 466 , 293 S.E.2d 780 (1982), see 5 Campbell L. Rev. 415 (1983).

For comment, “The Child Abuse Amendments of 1984: Congress is Calling North Carolina to Respond to the Baby Doe Dilemma,” 20 Wake Forest L. Rev. 975 (1984).

For article concerning the state’s failure to protect children and substantive due process, see 68 N.C.L. Rev. (1990).

For article, “Shaken Baby Syndrome as Felony Murder in North Carolina,” see 34 Campbell L. Rev. 423 (2012).

For article, “In Re R.R.N.: Redefining ‘Caretaker’ for North Carolina Child Protective Services,” see 40 Campbell L. Rev. 265 (2018).

CASE NOTES

Definition. —

Felony child abuse is the intentional infliction of serious injuries by a caretaker to a child. State v. Phillips, 328 N.C. 1 , 399 S.E.2d 293, 1991 N.C. LEXIS 13 , cert. denied, 501 U.S. 1208, 111 S. Ct. 2804, 115 L. Ed. 2d 977, 1991 U.S. LEXIS 3393 (1991).

Defendant’s argument that the trial court committed plain error by improperly instructing the jury on the definition of the term “sexual act” was squarely precluded by a prior decision of the court of appeals that addressed whether the phrase “sexual act” in the felony child abuse statute included vaginal intercourse because the court of appeals had to follow the most recent, controlling case addressing the question. State v. Gonzalez, 263 N.C. App. 527, 823 S.E.2d 886, 2019 N.C. App. LEXIS 20 (2019).

Defendant Held to Be a Caretaker. —

A caretaker under the Juvenile Code included an adult member of the juvenile’s household; thus, there was substantial evidence that defendant, who lived with the child and his mother and watched the child for short periods of time, provided supervision of the child within the meaning of the felony child abuse statute, and was a caretaker to the child. State v. Carrilo, 149 N.C. App. 543, 562 S.E.2d 47, 2002 N.C. App. LEXIS 280 (2002).

Evidence was sufficient to show that defendant was a person providing care or supervision to the child victim as required by G.S. 14-318.4(a), such that defendant could have been guilty of the underlying felony of child abuse to convict him of first-degree murder committed in the perpetration of a felony, where defendant lived in the child’s home for months, at least during the weekdays, defendant’s encounters with the child were daily and, although defendant may not have had plenary parental authority, evidence that he, inter alia, helped with potty training, cooked meals, and supervised the child while playing outside was sufficient for a jury to find the child depended on defendant for parental-type care. State v. Chambers, 278 N.C. App. 474, 861 S.E.2d 367, 2021- NCCOA-348, 2021 N.C. App. LEXIS 378 (2021).

A violation of this section is a crime of moral turpitude, and where the complaint indicated that defendant had accused the plaintiff of violating this section, the plaintiff alleged slander per se and presented evidence sufficient to withstand defendant’s motion for summary judgment. Dobson v. Harris, 134 N.C. App. 573, 521 S.E.2d 710, 1999 N.C. App. LEXIS 894 (1999), rev'd, 352 N.C. 77 , 530 S.E.2d 829, 2000 N.C. LEXIS 433 (2000).

Inference Raised by “Battered Child Syndrome.” —

A finding that the alleged victim suffered from the “battered child syndrome” — a medicolegal term describing the diagnosis of a medical expert, based on scientific studies, that when a child suffers certain type of continuing injuries, the injuries were not caused by accidental means — raises the inference that the person supervising her intentionally inflicted the injuries suffered by the child. State v. Campbell, 75 N.C. App. 266, 330 S.E.2d 502, 1985 N.C. App. LEXIS 3620 (1985), rev'd, 316 N.C. 168 , 340 S.E.2d 474, 1986 N.C. LEXIS 1909 (1986).

What Intent Is Required Under Subsection (a). —

Under subsection (a) of this section, the element of intent is sufficiently established if a defendant intentionally inflicts injury that proves to be serious on a child of less than 16 years of age in his care. He need not specifically intend that the injury be serious. State v. Campbell, 316 N.C. 168 , 340 S.E.2d 474, 1986 N.C. LEXIS 1909 (1986).

There was sufficient evidence of defendant’s intent to assault the three-year-old victim for denial of defendant’s motion to dismiss his prosecution under G.S. 14-318.4(a), where the victim stated several times that defendant kicked the victim, and several doctors testified that significant force was necessary to cause the victim’s injuries. State v. Carter, 153 N.C. App. 756, 570 S.E.2d 772, 2002 N.C. App. LEXIS 1272 (2002).

Evidence Sufficient to Show Intent. —

Evidence was sufficient to show that defendant intentionally inflicted injury on two-year-old that proved to be serious, as the nature and extent of burns raised the inference that someone other than the child herself intentionally held the child’s hands under hot water for a period of 10 to 15 seconds and the fact that defendant alone was with the child at the time she was injured raised an inference that defendant held the child’s hands under water. State v. Campbell, 316 N.C. 168 , 340 S.E.2d 474, 1986 N.C. LEXIS 1909 (1986).

Trial court properly denied defendant’s motions to dismiss pursuant to G.S. 15A-1227 in a prosecution for felony child abuse of defendant’s minor daughter in violation of G.S. 14-318.4 (a); with respect to G.S. 14-318.4 , when an adult had exclusive custody of a child for a period of time during which the child suffered injuries that were neither self-inflicted nor accidental, there was sufficient evidence to create an inference that the adult intentionally inflicted those injuries, and in the instant case defendant had exclusive custody of the child during the period when the child’s injuries occurred, and testimony to two doctors indicated that the injures to the child were intentionally inflicted. State v. Liberato, 156 N.C. App. 182, 576 S.E.2d 118, 2003 N.C. App. LEXIS 75 (2003).

Age as Aggravating Factor in Crime Where Age Is Already an Element. —

Where mother/defendant was accused of shaking her three-week old infant to death, the trial court did not err in finding as an aggravating factor, under G.S. 15A-1340.16(d)(11), that the victim was of a very young age, even though the victim’s age had already been used as an element of the crime under subsection (a) of this section. State v. Burgess, 134 N.C. App. 632, 518 S.E.2d 209, 1999 N.C. App. LEXIS 866 (1999).

Felonious Child Abuse By Commission Of Any Sexual Act Not Aggravated Offense Under G.S. 14-208.6(1a). —

Trial court erred when it determined that defendant’s conviction for the offense of felonious child abuse by the commission of any sexual act under G.S. 14-318.4(a2) was an “aggravated offense” as defined under G.S. 14-208.6(1a) and in ordering defendant to enroll in a lifetime satellite-based monitoring program because when considering the elements of the offense only and not the underlying factual scenario giving rise to defendant’s conviction the elements of felonious child abuse by the commission of any sexual act did not “fit within” the statutory definition of “aggravated offense;” since “a child less than 16 years” is not necessarily also “less than 12 years old,” without looking at the underlying facts, a trial court could not conclude that a person convicted of felonious child abuse by the commission of any sexual act committed that offense against a child less than 12 years old. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Offender’s conviction of felonious child abuse under G.S. 14-318.4(a2) may or may not be a conviction which results from the commission of “a sexual act involving penetration,” which is required for an offense to be considered an “aggravated offense” under G.S. 14-208.6(1a), because without a review of the underlying factual scenario giving rise to the conviction, which is prohibited, a trial court cannot know whether an offender was convicted under G.S. 14-318.4(a2) since he committed a sexual act involving penetration; while an “aggravated offense” is an offense in which the offender has “engaged in” a specific type of sexual act, an offender may be convicted of felonious child abuse by the commission of any sexual act as a result of either “committing” any sexual act upon a child less than 16 years of age, or as a result of “allowing the commission” of any sexual act upon such a child, and, thus, by examining the elements of the offense alone, a trial court could not determine whether a person convicted of felonious child abuse by the commission of any sexual act necessarily “engaged in” a specific type of sexual act himself. State v. Phillips, 203 N.C. App. 326, 691 S.E.2d 104, 2010 N.C. App. LEXIS 555 (2010).

Defense of Duress. —

Although defendant argued he forced his teenage son to commit a sex act against defendant’s ten-year-old daughter and, as such, the son was acting under duress and could not be guilty of a crime, a trial court did not err in denying defendant’s motion to dismiss the charges of aiding and abetting a sex offense and child abuse, G.S. 14-27.4(a)(1) and G.S. 14-318.4(a2), because even if defendant’s teenage son was under duress while performing certain acts upon his sister, such acts still constituted a crime and duress did not transform those acts into non-criminal activity. State v. Stokes, 216 N.C. App. 529, 718 S.E.2d 174, 2011 N.C. App. LEXIS 2287 (2011).

Sufficiency of Evidence. —

Evidence was insufficient to submit a charge of felony child abuse inflicting serious bodily injury because the surgical scars on the formerly broken leg of defendant’s child had healed, the child was engaged in unrestricted physical activities, and the State of North Carolina’s expert physician testified that there was to be no permanent disfiguration, or any loss or impairment of function of the leg due to the scars. The evidence was sufficient to submit and support a conviction of intentional child abuse resulting in serious physical injury. State v. Dixon, 258 N.C. App. 78, 811 S.E.2d 705, 2018 N.C. App. LEXIS 197 , writ denied, 371 N.C. 448 , 817 S.E.2d 391, 2018 N.C. LEXIS 664 (2018).

Where defendant alleged that a forensic interviewer’s testimony was impermissible vouching of the minor victim’s credibility, there was no plain error as defendant could not show that the interviewer’s testimony had a probable impact on the jury’s finding of guilt because, besides the interviews and the trial testimony of the victim, defendant’s own written statement provided that he touched the victim’s private area; and the restrictive definition of “sexual act” in G.S. 14-27.20(4) , on which defendant relied for his argument that penetration was required to establish felony child abuse by sexual act, did not apply to that offense. State v. Wohlers, 272 N.C. App. 678, 847 S.E.2d 781, 2020 N.C. App. LEXIS 568 (2020).

Evidence held sufficient to find that defendant intentionally inflicted injury on two year old child who suffered serious immersion burns on her hands, resulting in permanent disfigurement, substantial impairment of the function of her hands, and substantial impairment of her physical health, in violation of this section. State v. Campbell, 316 N.C. 168 , 340 S.E.2d 474, 1986 N.C. LEXIS 1909 (1986).

Where the medical evidence in a child abuse trial was that second-degree burns, which cause a layer of skin to peel, (1) are very painful, (2) if not treated, cause permanent disfigurement, and (3) if over a joint, the scars left by such burns permanently impede movement of the joint, the trial court did not err in refusing to dismiss the charge of felonious child abuse for lack of proof of serious physical injury. State v. Church, 99 N.C. App. 647, 394 S.E.2d 468, 1990 N.C. App. LEXIS 840 (1990).

The evidence was sufficient for a conviction under this section where the child suffered numerous, severe injuries which were inflicted on various occasions, including burns, head trauma, fractures to the leg, arm and ribs, facial bruising, and puncture marks, where the defendant was laughing and talking with co-defendant outside of the emergency room and even appeared to doze when the doctor informed her of the child’s condition, and where the defendant’s statements exonerated every other member of the household. The jury could also have found defendant guilty under a theory of aiding and abetting because the evidence indicated that she was present when the child was injured by the co-defendant who plead guilty. State v. Noffsinger, 137 N.C. App. 418, 528 S.E.2d 605, 2000 N.C. App. LEXIS 420 (2000).

Substantial evidence supported the conclusion that the defendant committed assault, in violation of this section, where defendant was the parent of the victim, was providing care to him, and he was under sixteen years of age at the time of his death. Defendant admitted that she shook him and threw him down, and as a result, seriously injured him; and had assaulted the victim on occasions prior to the assault which led to his death. State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569, 2000 N.C. App. LEXIS 541 (2000).

Evidence that defendant struck eight-year-old daughter on the buttocks with a board multiple times while disciplining her and that the blows caused a large bruise on the daughter’s buttocks that was crusted around the outside, had a spot near the middle that was open and oozing, and was painful to the touch, was sufficient for a jury to reasonably infer that defendant caused great pain and suffering, and the trial court did not err by denying defendant’s motion to dismiss charges of felonious child abuse and felonious assault inflicting serious bodily injury or by submitting the issue of defendant’s guilt or innocence to the jury. State v. Williams, 154 N.C. App. 176, 571 S.E.2d 619, 2002 N.C. App. LEXIS 1397 (2002).

Evidence presented by the State on a charge of felony child abuse resulting in serious bodily injury, a violation of G.S. 14-318.4(a3), was sufficient to defeat defendant’s motion to dismiss where the evidence showed that (1) defendant had exclusive care of the victim while the victim’s mother was at work; (2) the victim, who was almost two years old, suffered severe abdominal injuries caused by trauma of a kind only usually observed with victims of car wrecks or intentional child abuse; (3) the injuries occurred during a time when defendant was with the victim either alone or with the victim’s mother and a guest; (4) defendant testified that neither the victim’s mother nor the guest injured the victim; and (5) during later visits supervised by a social worker, the victim interacted freely with the mother and others, but cried when the mother tried to coax the victim to interact with defendant. State v. Chapman, 154 N.C. App. 441, 572 S.E.2d 243, 2002 N.C. App. LEXIS 1467 (2002).

Despite a defendant’s argument that the evidence as to his infliction of serious injury upon his victims was insufficient, the evidence was sufficient to establish the “serious bodily injury” element for his convictions for felonious child abuse inflicting serious injury under G.S. 14-318.4(a) and assault with a deadly weapon inflicting serious injury under G.S. 14-32(b). State v. Lowe, 154 N.C. App. 607, 572 S.E.2d 850, 2002 N.C. App. LEXIS 1530 (2002).

Where defendant hit his son, a one-year-old child, in the head with a belt causing a visible bruise, there was sufficient evidence of serious physical injury to convict defendant of felony child abuse in violation of G.S. 14-318.4(a); serious physical injury could have been inferred from the testimony about the bruise and photographs of it. State v. Romero, 164 N.C. App. 169, 595 S.E.2d 208, 2004 N.C. App. LEXIS 729 (2004).

Sufficient evidence supported defendant’s conviction of child abuse; defendant’s child suffered cigarette and scalding burns, neglect, and a blood clot on the brain, and physicians and experts testified that injuries were intentional; defendant, who had exclusive custody of the child when the injuries occurred, posited no alternative explanation, and admitted that she lied to physicians, nurses, social workers, friends, and family as to the cause of the injuries. State v. Wilson, 181 N.C. App. 540, 640 S.E.2d 403, 2007 N.C. App. LEXIS 253 (2007).

There was sufficient evidence to support defendant’s conviction of Class E child abuse under G.S. 14-318.4(a) as defendant inflicted a serious injury on a child with the required intent since: (1) defendant beat the child four different times with a belt for a total time between 40 minutes and 100 minutes; (2) the child was bleeding, short of breath (due to asthma), and vomited; (3) and both the child’s arms were almost entirely covered with bruises, the child’s legs were swollen and puffy, the child’s buttocks were black and blue, and the child was in pain for two weeks. State v. Williams, 184 N.C. App. 351, 646 S.E.2d 613, 2007 N.C. App. LEXIS 1465 (2007).

Although defendant argued the State failed to present sufficient evidence that he was the person that inserted an object into his ten-year-old daughter’s vagina, a trial court did not err in denying defendant’s motion to dismiss the charges of child abuse, G.S. 14-318.4(a2), because defendant’s teenage son testified he witnessed defendant moving his finger in the victim’s vagina, which satisfied the definition of “sexual act” under G.S. 14-27.1(4), and any inconsistencies in the victim’s testimony and the son’s testimony was for the jury to resolve. State v. Stokes, 216 N.C. App. 529, 718 S.E.2d 174, 2011 N.C. App. LEXIS 2287 (2011).

Trial court did not err in denying defendant’s motion to dismiss three counts of felony child abuse, under G.S. 14-318.4(b), because, although not perfectly clear from the victim’s testimony, in context of the overall narrative and in the light most favorable to the State of North Carolina, it was reasonable to infer that the various instances when defendant hit or struck the victim occurred separately from each other with distinct interruptions between them. Therefore, they could have formed the basis of separate assault counts, and the fact that these assaults formed part of chronic and continual abuse did not change that conclusion. State v. Lanford, 225 N.C. App. 189, 736 S.E.2d 619, 2013 N.C. App. LEXIS 71 (2013).

Inconsistency Between Indictment and Proof. —

Dismissal of a felonious child abuse prosecution was not required, where indictment charged the defendant intentionally inflicted serious injury on the victim that resulted in a subdural hematoma, but evidence showed that defendant inflicted an epidural hematoma and subdural hematoma at different times, because the indictment appropriately charged the elements of the crime, and the reference to the subdural hematoma was mere surplusage. State v. Qualls, 130 N.C. App. 1, 502 S.E.2d 31, 1998 N.C. App. LEXIS 846 (1998), aff'd, 350 N.C. 56 , 510 S.E.2d 376, 1999 N.C. LEXIS 2 (1999).

No Fatal Variance. —

Indictment included each of the elements of negligent child abuse inflicting serious bodily injury, and the additional statements regarding failure to provide medical care, failure to provide nutrition and hydration, extreme malnutrition, and severe dehydration were surplusage, not necessary for the indictment, and defendant failed to argue any prejudice from the alleged variance. State v. Cheeks, 267 N.C. App. 579, 833 S.E.2d 660, 2019 N.C. App. LEXIS 803 (2019), dismissed, 374 N.C. 270 , 839 S.E.2d 339, 2020 N.C. LEXIS 284 (2020), aff'd, 377 N.C. 528 , 858 S.E.2d 566, 2021- NCSC-69, 2021 N.C. LEXIS 544 (2021).

Jury Instructions. —

Using a pattern instruction defining “sexual act” more broadly than precedent was not plain error because (1) defendant did not show a correct instruction would have caused a different verdict, and (2) verdicts finding defendant not guilty of a sex offense and guilty of child abuse showed no plain error, as inconsistent verdicts were not prima facie error, and defendant’s charges were not mutually exclusive. State v. Alonzo, 261 N.C. App. 51, 819 S.E.2d 584, 2018 N.C. App. LEXIS 800 (2018), modified, aff'd, 373 N.C. 437 , 838 S.E.2d 354, 2020 N.C. LEXIS 86 (2020).

Court of Appeals erred when it held that the trial court erred by failing to instruct the jury on the definition of “sexual act” in former G.S. 14-27.1 (4) and the North Carolina Conference of Superior Court Judges Committee on Pattern Jury Instructions need not turn its attention to the definition of “sexual act” in G.S. 14-318.4(a2) as it was instructed to do by the Court of Appeals because the legislative history demonstrated that from the time G.S. 14-27.1 was enacted in 1980, until it took its current form in G.S. 14-27.20 , the legislature intended for the definitions in the statute to apply only within the respective article, and the Supreme Court of North Carolina interpreted the definition of “sexual act” in G.S. 14-27.1(4) as arising from the specific elements of the crimes listed in Article 7A. State v. Alonzo, 373 N.C. 437 , 838 S.E.2d 354, 2020 N.C. LEXIS 86 (2020).

Trial court did not plainly err in instructing the jury based on N.C. Pattern Instructions Crim. No. 239-55B, instead of the definition of “sexual act” in G.S. 14-27.20(4) , because the legislature intended for the definitions in G.S. 14-27.20(4) to apply only within the respective article — Article 7B; and the offense of felonious child abuse by sexual act under G.S. 14-318.4(a2), as charged, was contained in a separate article — Article 39. State v. Wohlers, 272 N.C. App. 678, 847 S.E.2d 781, 2020 N.C. App. LEXIS 568 (2020).

Trial judge’s instruction to jury properly defined “serious physical injury” as “such physical injury as causes great pain and suffering.” State v. Phillips, 328 N.C. 1 , 399 S.E.2d 293, 1991 N.C. LEXIS 13 , cert. denied, 501 U.S. 1208, 111 S. Ct. 2804, 115 L. Ed. 2d 977, 1991 U.S. LEXIS 3393 (1991).

Failure to Instruct Regarding “Serious Bodily Injury.” —

Because a trial court failed to instruct the jury regarding “serious bodily injury” as alleged in the indictment, it was error to sentence defendant for felonious child abuse inflicting serious bodily injury because the jury was only instructed on the lesser offense of felony child abuse inflicting serious physical injury. State v. Locklear, 178 N.C. App. 732, 632 S.E.2d 516, 2006 N.C. App. LEXIS 1641 (2006), vacated, 361 N.C. 700 , 654 S.E.2d 704, 2007 N.C. LEXIS 1117 (2007), vacated in part, 361 N.C. 688 , 2007 N.C. LEXIS 1462 (2007).

Jury Instructions Proper. —

Jury instruction allowing the jury to find defendant guilty of felonious child abuse if the jury found that defendant intentionally inflicted serious bodily injury to the child or intentionally assaulted the child proximately resulting in serious bodily injury was proper, as was a jury instruction providing that the jury could find the requisite intent through culpable or criminal negligence. State v. Oakman, 191 N.C. App. 796, 663 S.E.2d 453, 2008 N.C. App. LEXIS 1493 (2008).

Trial court did not commit plain error by instructing the jury on three alternative theories of felonious child abuse, because the evidence supported the instruction, requiring the jury to find that defendant engaged in a sexual act with the victim. State v. Lark, 198 N.C. App. 82, 678 S.E.2d 693, 2009 N.C. App. LEXIS 1101 (2009).

Felony child abuse is not a lesser included offense of murder; it requires proof of facts not required for murder and it addresses a distinct evil, the serious physical abuse of children by parents or other persons providing care to children. State v. Elliott, 344 N.C. 242 , 475 S.E.2d 202, 1996 N.C. LEXIS 493 (1996), cert. denied, 520 U.S. 1106, 117 S. Ct. 1111, 137 L. Ed. 2d 312, 1997 U.S. LEXIS 1529 (1997).

Felony Murder Conviction Upheld. —

The court rejected the defendant’s ex post facto objections and upheld the defendant’s conviction, under G.S. 14-17 , of murder while committing felonious child abuse, in violation of this section, with the use of her hands as a deadly weapon although this theory had not, at the time of the victim’s death, been used to support such a first degree felony murder conviction. State v. Krider, 138 N.C. App. 37, 530 S.E.2d 569, 2000 N.C. App. LEXIS 541 (2000).

Trial court did not err by electing to arrest judgment on a felonious child abuse with a deadly weapon conviction as only one felony was necessary to support a felony murder conviction, and the jury found that five felonies could support a felony murder charge including forcible rape, statutory rape, forcible sex offense, statutory sex offense, and felony child abuse with a deadly weapon. State v. Ridgeway, 185 N.C. App. 423, 648 S.E.2d 886, 2007 N.C. App. LEXIS 1823 (2007).

Evidence supported defendant’s first-degree felony murder conviction on the basis of felonious child abuse, as an external examination of the victim’s body revealed the presence of bruises and scratches, including unusual bruises on the buttocks that were not typical of the bruises that usually resulted from a toddler’s fall and a recently inflicted blunt force injury to the victim’s ribs that did not appear to have resulted from the administration of CPR. State v. Perry, 229 N.C. App. 304, 750 S.E.2d 521, 2013 N.C. App. LEXIS 880 (2013).

Sentence. —

In a felonious child abuse by sexual act case, because the presumptive range of minimum durations for a Class D felony for an offender at prior record level I was 51 to 64 months, and the trial court exercised its discretion to sentence defendant at the top end of that presumptive range, to a minimum term of imprisonment of 64 months, the trial court properly calculated defendant’s maximum term of imprisonment at 137 months. State v. Wohlers, 272 N.C. App. 678, 847 S.E.2d 781, 2020 N.C. App. LEXIS 568 (2020).

§ 14-318.5. Failure to report the disappearance of a child to law enforcement; immunity of person reporting in good faith.

  1. The following definitions apply in this section:
    1. Child. — Any person who is less than 16 years of age.
    2. Disappearance of a child. — When the parent or other person providing supervision of a child does not know the location of the child and has not had contact with the child for a 24-hour period.
  2. A parent or any other person providing care to or supervision of a child who knowingly or wantonly fails to report the disappearance of a child to law enforcement is in violation of this subsection. Unless the conduct is covered under some other provision of law providing greater punishment, a violation of this subsection is punishable as a Class I felony.
  3. Any person who reasonably suspects the disappearance of a child and who reasonably suspects that the child may be in danger shall report those suspicions to law enforcement within a reasonable time. Unless the conduct is covered under some other provision of law providing greater punishment, a violation of this subsection is punishable as a Class 1 misdemeanor.
  4. This section does not apply if G.S. 110-102.1 is applicable.
  5. Notwithstanding subsection (b) or (c) of this section, if a child is absent from school, a teacher is not required to report the child’s absence to law enforcement officers under this section, provided the teacher reports the child’s absence from school pursuant to Article 26 of Chapter 115C of the General Statutes.
  6. The felony of failure to report the disappearance of a child as required by subsection (b) of this section is an offense additional to other civil and criminal provisions and is not intended to repeal or preclude any other sanctions or remedies.
  7. Any person who reports the disappearance of a child as required by this section is immune from any civil or criminal liability that might otherwise be incurred or imposed for that action, provided that the person was acting in good faith. In any proceeding involving liability, good faith is presumed.

History. 2013-52, s. 2.

Cross References.

As to duty to report abuse, neglect, dependency, or death due to maltreatment, see G.S. 7B-301 .

As to reporting of missing or deceased children by child care facilities, see G.S. 110-102.1 .

Editor’s Note.

Session Laws 2013-52, s. 1, provides: “This act may be cited as ‘Caylee’s Law.”’

§ 14-318.6. Failure to report crimes against juveniles; penalty.

  1. Definitions. —  As used in this section, the following definitions apply:
    1. Juvenile. — As defined in G.S. 7B-101 . For the purposes of this section, the age of the juvenile at the time of the abuse or offense governs.
    2. Serious bodily injury. — As defined in G.S. 14-318.4(d).
    3. Serious physical injury. — As defined in G.S. 14-318.4(d).
    4. Sexually violent offense. — An offense committed against a juvenile that is a sexually violent offense as defined in G.S. 14-208.6(5). This term also includes the following: an attempt, solicitation, or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.
    5. Violent offense. — Any offense that inflicts upon the juvenile serious bodily injury or serious physical injury by other than accidental means. This term also includes the following: an attempt, solicitation, or conspiracy to commit any of these offenses; aiding and abetting any of these offenses.
  2. Requirement. —  Any person 18 years of age or older who knows or should have reasonably known that a juvenile has been or is the victim of a violent offense, sexual offense, or misdemeanor child abuse under G.S. 14-318.2 shall immediately report the case of that juvenile to the appropriate local law enforcement agency in the county where the juvenile resides or is found. The report may be made orally or by telephone. The report shall include information as is known to the person making it, including the name, address, and age of the juvenile; the name and address of the juvenile’s parent, guardian, custodian, or caretaker; the name, address, and age of the person who committed the offense against the juvenile; the location where the offense was committed; the names and ages of other juveniles present or in danger; the present whereabouts of the juvenile, if not at the home address; the nature and extent of any injury or condition resulting from the offense or abuse; and any other information which the person making the report believes might be helpful in establishing the need for law enforcement involvement. The person making the report shall give his or her name, address, and telephone number.
  3. Penalty. —  Any person 18 years of age or older, who knows or should have reasonably known that a juvenile was the victim of a violent offense, sexual offense, or misdemeanor child abuse under G.S. 14-318.2 , and knowingly or willfully fails to report as required by subsection (b) of this section, or who knowingly or willfully prevents another person from reporting as required by subsection (b) of this section, is guilty of a Class 1 misdemeanor.
  4. Construction. —  Nothing in this section shall be construed as relieving a person subject to the requirement set forth in subsection (b) of this section from any other duty to report required by law.
  5. Protection. —  The identity of a person making a report pursuant to this section must be protected and only revealed as provided in G.S. 132-1.4(c)(4).
  6. Good-Faith Immunity. —  A person who makes a report in good faith under this Article, cooperates with law enforcement in an investigation, or testifies in any judicial proceeding resulting from a law enforcement report or investigation is immune from any civil or criminal liability that might otherwise be incurred or imposed for that action, provided that person was acting in good faith.
  7. Law Enforcement Duty to Report Evidence to the Department of Social Services. —  If any law enforcement officer, as the result of a report, finds evidence that a juvenile may be abused, neglected, or dependent as defined in G.S. 7B-101 , the law enforcement officer shall make an oral report as soon as practicable and make a subsequent written report of the findings to the director of the department of social services within 48 hours after discovery of the evidence. When a report of abuse, neglect, or dependency is received, the director of the department of social services shall make a prompt and thorough assessment, in accordance with G.S. 7B-302 , to determine whether protective services should be provided or the complaint filed as a petition.
  8. Nothing in this section shall be construed as to require a person with a privilege under G.S. 8-53.3 , 8-53.7, 8-53.8, or 8-53.12 or with attorney-client privilege to report pursuant to this section if that privilege would prevent them from doing so.

History. 2019-245, s. 1(a).

Editor’s Note.

Session Laws 2019-245, s. 9(c), made this section effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 9(a), is a severability clause.

§ 14-319. [Repealed]

Repealed by Session Laws 1975, c. 402.

§ 14-320. [Repealed]

Repealed by Session Laws 1987, c. 716, s. 2.

Cross References.

As to prohibited practices in connection with adoption, see G.S. 48-10-101 et seq.

§ 14-320.1. Transporting child outside the State with intent to violate custody order.

When any federal court or state court in the United States shall have awarded custody of a child under the age of 16 years, it shall be a felony for any person with the intent to violate the court order to take or transport, or cause to be taken or transported, any such child from any point within this State to any point outside the limits of this State or to keep any such child outside the limits of this State. Such crime shall be punishable as a Class I felony. Provided that keeping a child outside the limits of the State in violation of a court order for a period in excess of 72 hours shall be prima facie evidence that the person charged intended to violate the order at the time of taking.

History. 1969, c. 81; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 563, s. 1; 1993, c. 539, s. 1234; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Legal Periodicals.

For note discussing criminal sanctions against “child-snatching,” see 55 N.C.L. Rev. 1275 (1977).

OPINIONS OF ATTORNEY GENERAL

Removal of Child After Award By Clerk But in Violation of Restraining Order Issued by Succeeding District Court. — See opinion of Attorney General to Mr. John Morton, Attorney at Law, 40 N.C. Op. Att'y Gen. 711 (1969).

§ 14-321. Failing to pay minors for doing certain work.

Whenever any person, having a contract with any corporation, company or person for the manufacture or change of any raw material by the piece or pound, shall employ any minor to assist in the work upon the faith of and by color of such contract, with intent to cheat and defraud such minor, and, having secured the contract price, shall willfully fail to pay the minor when he shall have performed his part of the contract work, whether done by the day or by the job, the person so offending shall be guilty of a Class 3 misdemeanor.

History. 1893, c. 309; Rev., s. 3428a; C.S., s. 4446; 1993, c. 539, s. 224; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to youth employment, see G.S. 95-25.5 , 95-25.23.

§ 14-321.1. Prohibit baby sitting service by sex offender or in the home of a sex offender.

  1. For purposes of this section the term “baby sitting service” means providing, for profit, supervision or care for a child under the age of 13 years who is unrelated to the provider by blood, marriage, or adoption, for more than two hours per day while the child’s parents or guardian are not on the premises.
  2. Notwithstanding any other provision of law, no person who is an adult may provide or offer to provide a baby sitting service in any of the following circumstances:
    1. The baby sitting service is offered in a home and a resident of the home is a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes.
    2. A provider of care for the baby sitting service is a sex offender who is registered in accordance with Article 27A of Chapter 14 of the General Statutes.
  3. A violation of this section that is a first offense is a Class 1 misdemeanor. A violation of this section that is a second or subsequent offense is a Class H felony.

History. 2005-416, s. 4.

§ 14-321.2. Prohibit unlawful transfer of custody of minor child.

  1. It shall be unlawful for:
    1. A parent to effect or attempt to effect an unlawful transfer of custody of that parent’s minor child.
    2. A person to accept or attempt to accept custody pursuant to an unlawful transfer of custody of a minor child; except that it shall not be unlawful for a person to receive custody of a child from a parent who intends to effect an unlawful transfer of custody of that parent’s minor child if the person promptly notifies law enforcement or child protective services in the county where the child resides or is found and promptly makes the child available to law enforcement or child protective services.
    3. A person to advertise, recruit, or solicit, or to aid, abet, conspire, or seek the assistance of another to advertise, recruit, or solicit the unlawful transfer of custody of a minor child.
  2. Definitions. —  As used in this section, the following definitions apply:
    1. “Minor child” means a child under the age of 18 and includes an adopted minor child, as defined in G.S. 48-1-101(14a).
    2. “Parent” means a biological parent, adoptive parent, legal guardian, or legal custodian.
    3. “Relative” means the child’s other parent, stepparent, grandparent, adult sibling, aunt, uncle, first cousin, great-aunt, great-uncle, great-grandparent, or a parent’s first cousin.
    4. “Unlawful transfer of custody” means the transfer of physical custody of a minor child, in willful violation of applicable adoption law or by grossly negligent omission in the care of the child, by the child’s parent, without a court order or other authorization under law, to a person other than a relative or another individual having a substantial relationship with the child. Compensation in the form of money, property, or other item of value is not required in order for an unlawful transfer of custody to occur. Unlawful transfer of custody does not include any of the following:
      1. Placement of a minor child with a prospective adoptive parent in accordance with Part 2 of Article 3 of Chapter 48 of the General Statutes.
      2. A consent to adoption of a minor child in accordance with Part 6 of Article 3 of Chapter 48 of the General Statutes.
      3. Relinquishment of a minor child in accordance with Part 7 of Article 3 of Chapter 48 of the General Statutes.
      4. Placement of a minor child in accordance with the Interstate Compact on the Placement of Children under Article 38 of Chapter 7B of the General Statutes or the Convention of 29 May 1993 on Protection of Children and Co-operation in respect of Intercountry Adoption.
      5. Temporary transfer of physical custody of a minor child to an individual with a prior substantial relationship with the child for a specified period of time due to (i) the child’s medical, mental health, educational, or recreational needs or (ii) the parent’s inability to provide proper care or supervision for the minor child, which may be due to the parent’s incarceration, military service, employment, medical treatment, incapacity, or other voluntary or involuntary absence.
      6. Transfer of physical custody of a minor child to a relative.
      7. Temporary transfer of physical custody of a minor child to a behavioral health facility or other health care provider, an educational institution, or a recreational facility by a parent for a specified period of time due to the child’s medical, mental health, educational, or recreational needs.
      8. A voluntary foster care placement of the minor child made pursuant to an agreement between the minor child’s parent and a county department of social services as described in G.S. 7B-910 .
      9. Placement of a minor child with a prospective adoptive parent in substantial compliance with the applicable adoption laws of this State or of another state.
  3. Any person who commits an offense under subsection (a) of this section is guilty of a Class A1 misdemeanor.
  4. Any person who commits an offense under subsection (a) of this section that results in serious physical injury to the child is guilty of a Class G felony.

History. 2016-115, s. 1.

Cross References.

As to support for adoptive families at risk of dissolution, see G.S. 48-1-110 .

Legal Periodicals.

For note, “Kinder Solutions to an Unkind Approach: Supporting Impoverished and Ill Parents Under North Carolina’s Filial Responsibility Law,” see 71 Duke L.J. 209 (2021).

Article 40. Protection of the Family.

§ 14-322. Abandonment and failure to support spouse and children.

  1. For purposes of this Article:
    1. “Supporting spouse” means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support.
    2. “Dependent spouse” means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.
  2. Any supporting spouse who shall willfully abandon a dependent spouse without providing that spouse with adequate support shall be guilty of a Class 1 or 2 misdemeanor and upon conviction shall be punished according to subsection (f).
  3. Any supporting spouse who, while living with a dependent spouse, shall willfully neglect to provide adequate support for that dependent spouse shall be guilty of a misdemeanor and upon conviction shall be punished according to subsection (f).
  4. Any parent who shall willfully neglect or refuse to provide adequate support for that parent’s child, whether natural or adopted, and whether or not the parent abandons the child, shall be guilty of a misdemeanor and upon conviction shall be punished according to subsection (f). Willful neglect or refusal to provide adequate support of a child shall constitute a continuing offense and shall not be barred by any statute of limitations until the youngest living child of the parent shall reach the age of 18 years.
  5. Upon conviction for an offense under this section, the court may make such order as will best provide for the support, as far as may be necessary, of the abandoned spouse or child, or both, from the property or labor of the defendant. If the court requires the payment of child support, the amount of the payments shall be determined as provided in G.S. 50-13.4(c). For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110-136.5(c1) shall apply.
  6. A first offense under this section is a Class 2 misdemeanor. A second or subsequent offense is a Class 1 misdemeanor.

History. 1868-9, c. 209, s. 1; 1873-4, c. 176, s. 10; 1879, c. 92; Code, s. 970; Rev., s. 3355; C.S., s. 4447; 1925, c. 290; 1949, c. 810; 1957, c. 369; 1969, c. 1045, s. 1; 1981, c. 683, s. 1; 1989, c. 529, s. 4; 1993, c. 517, s. 3; c. 539, ss. 225, 226; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For provision making spouse competent and compellable to testify in a prosecution for abandonment, see G.S. 8-57 .

As to when offense of failure to support child deemed committed in State, see G.S. 14-325.1 .

Legal Periodicals.

For discussion of statutory abandonment, see 38 N.C.L. Rev. 1 (1959).

For article on the rights of individuals to control the distributional consequences of divorce by private contract and on the interests of the State in preserving its role as a third party to marriage and divorce, see 59 N.C.L. Rev. 819 (1981).

For survey of 1980 family law, see 59 N.C.L. Rev. 1194 (1981).

For note, “Legislating Responsibility: North Carolina’s New Child Support Enforcement Acts,” see 65 N.C.L. Rev. 1354 (1987).

For note, “Kinder Solutions to an Unkind Approach: Supporting Impoverished and Ill Parents Under North Carolina’s Filial Responsibility Law,” see 71 Duke L.J. 209 (2021).

CASE NOTES

Analysis

I.General Consideration

The duty to provide support is not a debt in the legal sense of the word, but an obligation imposed by law, and penal sanctions are provided by this section for its willful neglect or abandonment. Ritchie v. White, 225 N.C. 450 , 35 S.E.2d 414, 1945 N.C. LEXIS 346 (1945).

This section must be strictly construed. State v. Gardner, 219 N.C. 331 , 13 S.E.2d 529, 1941 N.C. LEXIS 318 (1941); State v. Carson, 228 N.C. 151 , 44 S.E.2d 721, 1947 N.C. LEXIS 561 (1947).

The district court has exclusive original jurisdiction of misdemeanors, including action to determine liability of persons for the support of dependents in any criminal proceeding. Cline v. Cline, 6 N.C. App. 523, 170 S.E.2d 645, 1969 N.C. App. LEXIS 1220 (1969).

The constructive domicile of the wife is that of her husband, and where he has resided in another state and has left her there, and where for business or other reasonable purposes he has come to this State and made his domicile here, and she has followed him and he has then abandoned her and ceased to contribute to her support and that of his child born to them in lawful wedlock, the abandonment occurs in this State and is within the jurisdiction of the courts of this State and subject to the provisions of the State statute making it a misdemeanor. State v. Sneed, 197 N.C. 668 , 150 S.E. 197, 1929 N.C. LEXIS 329 (1929).

Plea in Abatement After Plea of Not Guilty. —

Where the defendant had been convicted of abandoning his wife and child and failing to provide an adequate support for them under the provisions of this section, his plea in abatement came too late after his plea of not guilty. State v. Hooker, 186 N.C. 761 , 120 S.E. 449, 1923 N.C. LEXIS 334 (1923).

Order of the Judge Providing for Support. —

It is within the discretion of the trial judge to provide for the support of the wife and the minor children of the marriage from the property or labor of the husband upon his conviction of willfully abandoning them, and an order that he pay a certain sum of money into the clerk’s office monthly for this purpose, and secure compliance therewith by executing a bond in the sum of $1,000 comes within the provisions of the statute. State v. Vickers, 196 N.C. 239 , 145 S.E. 175, 1928 N.C. LEXIS 329 (1928).

Where a husband has been convicted of abandoning his wife and minor children, the order of the judge providing for their support should be definite in providing for the contingencies that may arise, such as the coming of age of the children, etc., and should state what part thereof is for the support of the wife and what part is for the support of the children; and an order requiring the defendant to pay a certain sum monthly into the office of the clerk of the superior court, under a bond of the defendant to secure compliance, without further provisions, will be remanded so that a more definite order be given in the judgment of the lower court. State v. Vickers, 196 N.C. 239 , 145 S.E. 175, 1928 N.C. LEXIS 329 (1928).

Application of Collateral Estoppel in Subsequent Civil Action. —

A conviction under this section necessitates a finding that defendant is the father of the minor children involved. Thus, a criminal conviction under this section for the willful neglect of and refusal to support his minor children estops defendant from relitigating the issue of paternity in a subsequent civil action against him for reimbursement of public assistance pay for the support of his children and an order to provide continued support. The doctrine of collateral estoppel bars defendant from relitigating the paternity issue. State ex rel. New Bern Child Support Agency ex rel. Lewis v. Lewis, 311 N.C. 727 , 319 S.E.2d 145, 1984 N.C. LEXIS 1764 (1984).

II.Nonsupport of Spouse

Abandonment under G.S. 50-7(1) is not synonymous with the criminal offense defined in this section. Richardson v. Richardson, 268 N.C. 538 , 151 S.E.2d 12, 1966 N.C. LEXIS 1249 (1966).

There is a distinction between criminal abandonment and the matrimonial offense of desertion. Peoples v. Peoples, 10 N.C. App. 402, 179 S.E.2d 138, 1971 N.C. App. LEXIS 1643 (1971).

Indictment. —

An indictment against a husband for abandoning his wife must aver his failure to support her. State v. May, 132 N.C. 1020 , 43 S.E. 819, 1903 N.C. LEXIS 384 (1903).

Abandonment and Failure to Support Must Be Willful. —

By express language the abandonment and failure to support must be willful to create criminal offenses. State v. Westmoreland, 255 N.C. 725 , 122 S.E.2d 702, 1961 N.C. LEXIS 675 (1961).

Willful Abandonment May Signify Whether Failure to Support Was Willful. —

Under certain circumstances the willful abandonment of a wife by a husband may be a significant factor in determining whether his failure to provide adequate support was willful, as when he leaves and goes to a new community where there is no prospect of equally satisfactory employment. State v. Lucas, 242 N.C. 84 , 86 S.E.2d 770, 1955 N.C. LEXIS 459 (1955).

An offer of a home when not made in good faith, and when refused, is equivalent to abandonment by the husband. State v. Smith, 164 N.C. 475 , 79 S.E. 979, 1913 N.C. LEXIS 90 (1913).

Separation by Consent. —

Where the wife has consented to a separation from her husband, his leaving her is not an abandonment within the meaning of this section. State v. Smith, 164 N.C. 475 , 79 S.E. 979, 1913 N.C. LEXIS 90 (1913).

Where consent to separation is induced by the misconduct of one spouse, a charge of voluntary abandonment may still be maintained. State v. Talbot, 123 N.C. App. 698, 474 S.E.2d 143, 1996 N.C. App. LEXIS 864 (1996).

Institution of bastardy proceedings prior to birth of child is insufficient to establish such abandonment as is contemplated by this section. In re Jane Doe, 231 N.C. 1 , 56 S.E.2d 8, 1949 N.C. LEXIS 475 (1949).

Proof of Adultery as Justification. —

While ordinarily the husband may not withdraw his support from his wife and children, and compel her to leave him without violating this section, it is one of the exceptions to the rule under which the husband may prove justification, when she has committed adultery with another man, and an instruction which deprives the husband of this defense is reversible error. State v. Johnson, 194 N.C. 378 , 139 S.E. 697, 1927 N.C. LEXIS 107 (1927).

Where a wife is guilty of adultery, her husband is not liable to prosecution for abandonment. State v. Hopkins, 130 N.C. 647 , 40 S.E. 973, 1902 N.C. LEXIS 131 (1902).

Upon the trial of the husband for abandonment, under this section, the wife’s unchastity is a defense, which he may put in issue by cross-examination or otherwise, with the burden remaining on the State to show his guilt beyond a reasonable doubt. State v. Falkner, 182 N.C. 793 , 108 S.E. 756, 1921 N.C. LEXIS 340 (1921).

Statute of Limitations. —

Where the abandonment consisted in the failure to remit her a certain sum of money periodically to a certain county in which his conduct had forced her to reside, the failure to support occurred at the time he failed to perform his agreement, and the statute will begin to run from that date. State v. Hooker, 186 N.C. 761 , 120 S.E. 449, 1923 N.C. LEXIS 334 (1923).

Same — Renewal of Cohabitation. —

Where a man willfully abandons his wife, sends remittances for her support, returns and lives with her as man and wife for a while, and again abandons her, his willfully leaving her the second time without providing an adequate support for her is a fresh abandonment and failure to support, and an indictment found within two years therefrom is not barred by the statute of limitations. State v. Beam, 181 N.C. 597 , 107 S.E. 429, 1921 N.C. LEXIS 157 (1921).

Venue. —

When the husband has agreed to a separation from his wife upon consideration of his remitting periodically a certain sum of money to a certain county in which she was to reside, and he fails to perform, the venue of an action under the provisions of this section is in that county. State v. Hooker, 186 N.C. 761 , 120 S.E. 449, 1923 N.C. LEXIS 334 (1923).

Same — Where Husband Is Nonresident. —

Where a man willfully abandons his wife in this State and fails to send her funds for an adequate support, when he was residing in another state, he cannot direct her choice of residence and is indictable under this section in the county of her residence. State v. Beam, 181 N.C. 597 , 107 S.E. 429, 1921 N.C. LEXIS 157 (1921).

Instruction Properly Refused. —

Plaintiff’s contention that the court should have charged that the failure to provide support under this section must have been willful in order to constitute an abandonment was untenable. Hyder v. Hyder, 215 N.C. 239 , 1 S.E.2d 540, 1939 N.C. LEXIS 239 (1939).

Defective Instructions. —

Where, in a prosecution for abandonment and willful failure to support, the evidence tended to show that the husband was employed and had earnings, and had in some measure made provision for the support of the wife, the adequacy of such support and the willfulness of the defendant’s failure to do more were the crucial questions to be submitted to the jury, and an instruction to the effect that defendant’s earning capacity made no difference was erroneous, and an instruction that the failure to provide support would be excusable only if the husband had no income or earning capacity whatsoever was inexact. State v. Lucas, 242 N.C. 84 , 86 S.E.2d 770, 1955 N.C. LEXIS 459 (1955).

Good Faith in Abandonment Is Question for Jury. —

In a prosecution of a husband for abandonment the question whether such abandonment was in good faith, for the causes assigned, is for the jury. State v. Hopkins, 130 N.C. 647 , 40 S.E. 973, 1902 N.C. LEXIS 131 (1902).

Husband Cannot Be Twice Convicted. —

A husband once convicted of an abandonment of his wife cannot be again tried for the same offense, he not having lived with her since the original abandonment. State v. Dunston, 78 N.C. 418 , 1878 N.C. LEXIS 242 (1878).

Condonation by Wife Does Not Bar Prosecution. —

Abandonment of the wife by the husband is a statutory offense, and it is not condoned, so far as the State’s right to prosecute is concerned, by a subsequent resumption of the marital relation. State v. Manon, 204 N.C. 52 , 167 S.E. 493, 1933 N.C. LEXIS 319 (1933).

Divorce After First Conviction No Defense on New Trial. —

Where the husband has been indicted, tried, and convicted under this section for the criminal abandonment of his wife, and upon appeal he has been granted a new trial, the fact that since his former conviction his wife has obtained an absolute divorce from him will not avail him as a defense. State v. Falkner, 185 N.C. 635 , 116 S.E. 168, 1923 N.C. LEXIS 137 (1923).

Evidence Held Sufficient. —

Evidence that defendant had taken his belongings, unplugged the refrigerator, disconnected the telephone, and left no money was sufficient to permit a reasonable juror to conclude that defendant intentionally abandoned his wife. State v. Talbot, 123 N.C. App. 698, 474 S.E.2d 143, 1996 N.C. App. LEXIS 864 (1996).

III.Nonsupport of Children

In order to obtain a conviction under subsection (d) of this section, the State must prove three elements beyond a reasonable doubt: (1) That the defendant was the father of the children; (2) that the defendant failed to provide the children with adequate support; and (3) that such failure was willful. State ex rel. New Bern Child Support Agency ex rel. Lewis v. Lewis, 311 N.C. 727 , 319 S.E.2d 145, 1984 N.C. LEXIS 1764 (1984).

Limitation on Prosecution for Nonsupport of Illegitimate Children Held Constitutional. —

The three-year statute of limitations contained in G.S. 49-4(1) for prosecutions under G.S. 49-2 does not violate the equal protection clause of the federal Constitution in that it prescribes a limitations period for the prosecution of persons who willfully fail to support their illegitimate children whereas there is no limitations period for the prosecution under subsection (d) of this section of persons who willfully fail to support their legitimate children. State v. Beasley, 57 N.C. App. 208, 290 S.E.2d 730, 1982 N.C. App. LEXIS 2586 (1982).

Sufficient Warrant. —

A warrant charging defendant with willful refusal and neglect to provide adequate support for his minor children, naming them, was sufficient, abandonment not being an element of the offense since the 1957 amendment rewrote this section. State v. Goodmen, 266 N.C. 659 , 147 S.E.2d 44, 1966 N.C. LEXIS 1413 (1966).

The word “willfully” as used in G.S. 49-2 is used with the same import as in this section. State v. Cook, 207 N.C. 261 , 176 S.E. 757, 1934 N.C. LEXIS 436 (1934).

Failure to Support Must Be Willful. —

In a prosecution under this section, the failure by a defendant to provide adequate support for his child must be willful, that is, he intentionally and without just cause or excuse does not provide adequate support for his child according to his means and station in life, and this essential element of the offense must be alleged and proved. State v. Hall, 251 N.C. 211 , 110 S.E.2d 868, 1959 N.C. LEXIS 540 (1959); State v. McMillan, 10 N.C. App. 734, 180 S.E.2d 35, 1971 N.C. App. LEXIS 1713 (1971).

Defective Instruction on Presumption of Willfulness. —

Where the defendant was indicted under this section for failure to provide adequate support for his minor children, and in the prosecution of the action the evidence tended to show that the defendant and his wife were living apart and that he had not provided any support for his minor children for some time, and that a judgment had been entered in a civil action by the wife awarding all his personalty except his personal belongings, and that he had transferred his realty to his daughter for the support of the wife and minor children, there was no presumption of willfulness from the failure to provide adequate support under G.S. 14-323 (now repealed), and an instruction that left out this essential element of the crime was held to be reversible error. State v. Roberts, 197 N.C. 662 , 150 S.E. 199, 1929 N.C. LEXIS 327 (1929).

Sufficient Evidence to Show Willful Abandonment and Failure to Support Minor Child. —

Evidence that defendant refused to support his minor child although repeated demands were made on him after the parties had returned to this State, was held to show that the offense of willful abandonment and failure to support said minor child was committed by the defendant in this State, since this section provides that the abandonment of a minor child shall constitute a continuing offense. State v. Hinson, 209 N.C. 187 , 183 S.E. 397, 1936 N.C. LEXIS 420 (1936).

Evidence Insufficient to Infer Willfulness. —

Where there was no evidence in the record that the defendant was employed, or that he owned any property, or had any income or any ability whatsoever to contribute to the support of his children, nor any evidence that the defendant had failed to apply himself to some honest calling for the support of himself and family, or that he was a frequenter of drinking houses, or a known common drunkard, so as to bring the case within the presumption raised by G.S. 14-323 (now repealed), the record was devoid of evidence from which the jury might infer that the defendant willfully or intentionally failed to discharge his obligation to support his children, and the defendant’s motion for judgment as of nonsuit should have been allowed. State v. McMillan, 10 N.C. App. 734, 180 S.E.2d 35, 1971 N.C. App. LEXIS 1713 (1971).

This section has no application to illegitimate children, and therefore an indictment drawn under this section charging defendant with the abandonment of his illegitimate child fails to charge a crime. State v. Gardner, 219 N.C. 331 , 13 S.E.2d 529, 1941 N.C. LEXIS 318 (1941).

This section relates only to legitimate children. An illegitimate child is not protected thereby. Allen v. Hunnicutt, 230 N.C. 49 , 52 S.E.2d 18, 1949 N.C. LEXIS 572 (1949).

Denial of Paternity. —

Where the husband in an action for nonsupport for a child admits the nonsupport, but denies that he is the father, and introduces evidence in support thereof, an instruction that withdraws the question of the paternity of the child from the jury is reversible error. State v. Ray, 195 N.C. 628 , 143 S.E. 216, 1928 N.C. LEXIS 164 (1928).

Biological Paternity. —

The common-law presumption of the husband’s paternity is not a rule of substantive law making biological paternity irrelevant in a prosecution under this section. State v. White, 300 N.C. 494 , 268 S.E.2d 481, 1980 N.C. LEXIS 1127 (1980).

Instruction as to Presumption of Legitimacy Held Constitutional. —

In a prosecution for willfully refusing to provide adequate support for his child in violation of this section, where the child was conceived while defendant and child’s mother were living together as husband and wife; child was born after they had separated but during wedlock, and there was some evidence that her mother had sexual relations with another man after conception and during the period of gestation, a jury instruction on the common-law presumption of the child’s legitimacy did not violate defendant’s right to a trial by due process of law. State v. White, 300 N.C. 494 , 268 S.E.2d 481, 1980 N.C. LEXIS 1127 (1980).

Rebutting Presumption of Paternity. —

To require a defendant-husband to offer evidence of the physical impossibility of his fatherhood in order to rebut the presumption of paternity places upon him a burden of production so stringent that, in effect, it unconstitutionally shifts the burden of persuasion to him on this issue. Due process precludes requiring that the defendant, in order to rebut the mandatory presumption, do more than offer some evidence which is sufficient to raise a factual issue as to the paternity of the child. State v. White, 300 N.C. 494 , 268 S.E.2d 481, 1980 N.C. LEXIS 1127 (1980).

This section in express terms constitutes the abandonment of children a continuing offense. The prosecution of an offense of this nature is a bar to a subsequent prosecution for the same offense charged to have been committed at any time before the institution of the first prosecution, but it is not a bar to a subsequent prosecution for continuing the offense thereafter, as this is a new violation of the law. State v. Hinson, 209 N.C. 187 , 183 S.E. 397, 1936 N.C. LEXIS 420 (1936).

Abandonment of children is a continuing offense, and therefore, termination of a prosecution in defendant’s favor will not preclude a subsequent prosecution. State v. Smith, 241 N.C. 301 , 84 S.E.2d 913, 1954 N.C. LEXIS 589 (1954).

A parent’s willful failure or refusal to provide adequate support for his children is a continuing offense, and is not barred by any statute of limitations until the youngest child shall have reached the age of 18 years. State v. McMillan, 10 N.C. App. 734, 180 S.E.2d 35, 1971 N.C. App. LEXIS 1713 (1971).

Autrefois Acquit and Convict. —

In a prosecution for the violation of this section a plea by the defendant of former conviction of the same offense is good as to the period prior to the conviction, but it is not a bar to the prosecution for his failure to provide adequate support for his children subsequent thereto. State v. Jones, 201 N.C. 424 , 160 S.E. 468, 1931 N.C. LEXIS 265 (1931).

If the mother is guilty of nonsupport, this section provides a remedy and this remedy is exclusive. Hensen v. Thomas, 231 N.C. 173 , 56 S.E.2d 432, 1949 N.C. LEXIS 505 (1949).

A father cannot, by contract, relieve himself of his obligation to support his child. Goodyear v. Goodyear, 257 N.C. 374 , 126 S.E.2d 113, 1962 N.C. LEXIS 371 (1962).

Abandonment of Children After Divorce. —

The father’s duty to the children is not lessened by the fact that a decree of absolute divorcement has been obtained, the obligation to support his own children continuing after the marriage relation between him and his wife has been severed by the law. State v. Bell, 184 N.C. 701 , 115 S.E. 190, 1922 N.C. LEXIS 168 (1922).

Statute of Limitations Repelled by Promise and Gifts. —

The promise of a father to support his children and his making gifts to them was sufficient to repel the bar of the two-year statute of limitations, whether he was living in the home with them or otherwise, in proceedings under this section for his willfully abandoning them. State v. Bell, 184 N.C. 701 , 115 S.E. 190, 1922 N.C. LEXIS 168 (1922).

§ 14-322.1. Abandonment of child or children for six months.

Any man or woman who, without just cause or provocation, willfully abandons his or her child or children for six months and who willfully fails or refuses to provide adequate means of support for his or her child or children during the six months’ period, and who attempts to conceal his or her whereabouts from his or her child or children with the intent of escaping his lawful obligation for the support of said child or children, shall be punished as a Class I felon.

History. 1963, c. 1227; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1983, c. 653, s. 2.

Legal Periodicals.

For comment, “The Child Abuse Amendments of 1984: Congress is Calling North Carolina to Respond to the Baby Doe Dilemma,” 20 Wake Forest L. Rev. 975 (1984).

§ 14-322.2. [Repealed]

Repealed by Session Laws 1979, c. 838, s. 28.

§ 14-322.3. Abandonment of an infant under seven days of age.

When a parent abandons an infant less than seven days of age by voluntarily delivering the infant as provided in G.S. 7B-500(b) or G.S. 7B-500(d) and does not express an intent to return for the infant, that parent shall not be prosecuted under G.S. 14-322 , 14-322.1, or 14-43.14.

History. 2001-291, s. 7; 2012-153, s. 4.

Effect of Amendments.

Session Laws 2012-153, s. 4, effective December 1, 2012, substituted “G.S. 14-322, 14-322.1, or 14-43.14” for “G.S. 14-322 or G.S. 14-322 .1” at the end of the section. For applicability, see editor’s note.

§§ 14-323 through 14-325. [Repealed]

Repealed by Session Laws 1981, c. 683, s. 3.

Cross References.

For present provisions as to abandonment and nonsupport of spouse or children, see G.S. 14-322 .

§ 14-325.1. When offense of failure to support child deemed committed in State.

The offense of willful neglect or refusal of a parent to support and maintain a child, and the offense of willful neglect or refusal to support and maintain one’s child born out of wedlock, shall be deemed to have been committed in this State whenever the child is living in this State at the time of the willful neglect or refusal to support and maintain the child.

History. 1953, c. 677; 1981, c. 683, s. 2; 2013-198, s. 3.

Effect of Amendments.

Session Laws 2013-198, s. 3, effective June 26, 2013, substituted “child born out of wedlock” for “illegitimate child,” “this State” for “the State of North Carolina” or similar language, and “the” for “such” preceding “willful neglect” and the last occurrence of “child.”

Legal Periodicals.

For brief comment on this section, see 31 N.C.L. Rev. 404 (1953).

§ 14-326. [Repealed]

Repealed by Session Laws 1981, c. 683, s. 3.

Cross References.

For present provisions as to abandonment and nonsupport of spouse or children, see G.S. 14-322 .

§ 14-326.1. Parents; failure to support.

If any person being of full age, and having sufficient income after reasonably providing for his or her own immediate family shall, without reasonable cause, neglect to maintain and support his or her parent or parents, if such parent or parents be sick or not able to work and have not sufficient means or ability to maintain or support themselves, such person shall be deemed guilty of a Class 2 misdemeanor; upon conviction of a second or subsequent offense such person shall be guilty of a Class 1 misdemeanor.

If there be more than one person bound under the provisions of the next preceding paragraph to support the same parent or parents, they shall share equitably in the discharge of such duty.

History. 1955, c. 1099; 1969, c. 1045, s. 3; 1993, c. 539, s. 227; 1994, Ex. Sess., c. 24, s. 14(c).

Local Modification.

Person: 1967, c. 848, s. 3.

Cross References.

As to application of this section not being altered by decree of emancipation, see now G.S. 7B-3507 .

Legal Periodicals.

For article, “Juvenile Justice in Transition — A New Juvenile Code for North Carolina,” see 16 Wake Forest L. Rev. 1 (1980).

For note, “Kinder Solutions to an Unkind Approach: Supporting Impoverished and Ill Parents Under North Carolina’s Filial Responsibility Law,” see 71 Duke L.J. 209 (2021).

Article 41. Alcoholic Beverages.

§§ 14-327, 14-328. [Repealed]

Repealed by Session Laws 1971, c. 872, s. 3.

§ 14-329. Manufacturing, trafficking in, transporting, or possessing poisonous alcoholic beverages.

  1. Any person who, either individually or as an agent for any person, firm or corporation, shall manufacture for use as a beverage, any spirituous liquor which is found to contain any foreign properties or ingredients poisonous to the human system, shall be punished as a Class H felon.
  2. Any person who, either individually or as agent for any person, firm or corporation, shall, knowing or having reasonable grounds to know of the poisonous qualities thereof, transport for other than personal use, sell or possess for purpose of sale, for use as a beverage, any spirituous liquor which is found to contain any foreign properties or ingredients poisonous to the human system, shall be punished as a Class F felon.
  3. Any person who, either individually or as agent for any person, firm or corporation, shall transport for other than personal use, sell or possess for purpose of sale, any spirituous liquor to be used as a beverage which is found to contain any foreign properties or ingredients poisonous to the human system, shall be guilty of a Class 2 misdemeanor. In prosecutions under this subsection and under subsection (b) above, proof of transportation of more than one gallon of spirituous liquor will be prima facie evidence of transportation for other than personal use, and proof of possession of more than one gallon of spirituous liquor will be prima facie evidence of possession for purpose of sale.
  4. Any person who, either individually or as agent for any person, firm or corporation, shall transport or possess, for use as a beverage, any illicit spirituous liquor which is found to contain any foreign properties or ingredients poisonous to the human system, shall be guilty of a Class 1 misdemeanor: Provided, anyone charged under this subsection may show as a complete defense that the spirituous liquor in question was legally obtained and possessed and that he had no knowledge of the poisonous nature of the beverage.

History. 1873-4, c. 180, ss. 1, 2; Code, s. 983; Rev., s. 3522; C.S., s. 4453; 1961, c. 897; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, ss. 228, 229, 1235; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§§ 14-330 through 14-332. [Repealed]

Repealed by Session Laws 1971, c. 872, s. 3.

Editor’s Note.

Section 14-330 was also repealed by Session Laws 1971, c. 168.

Article 42. Public Drunkenness. [Repealed]

§ 14-333. [Repealed]

Repealed by Session Laws 1971, c. 872, s. 3.

§§ 14-334 through 14-335.1. [Repealed]

Repealed by Session Laws 1977, 2nd Session, c. 1134, s. 6.

Cross References.

For present provisions as to public intoxication, see G.S. 14-443 et seq.

Article 43. Vagrants and Tramps. [Repealed]

§ 14-336. [Repealed]

Repealed by Session Laws 1983, c. 17, s. 1.

§ 14-337. [Repealed]

Repealed by Session Laws 1973, c. 108, s. 13.

§§ 14-338, 14-339. [Repealed]

Repealed by Session Laws 1983, c. 17, ss. 2, 3.

§ 14-340. [Repealed]

Repealed by Session Laws 1971, c. 700.

§ 14-341. [Repealed]

Repealed by Session Laws 1971, c. 699.

Article 44. Regulation of Sales.

§ 14-342. Selling or offering to sell meat of diseased animals.

If any person shall knowingly and willfully slaughter any diseased animal and sell or offer for sale any of the meat of such diseased animal for human consumption, or if any person knows that the meat offered for sale or sold for human consumption by him is that of a diseased animal, he shall be guilty of a Class 1 misdemeanor.

History. 1905, c. 303; Rev., s. 3442; C.S., s. 4465; 1993, c. 539, s. 230; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-343. Unauthorized dealing in railroad tickets.

If any person shall sell or deal in tickets issued by any railroad company, unless he is a duly authorized agent of the railroad company, or shall refuse upon demand to exhibit his authority to sell or deal in such tickets, he shall be guilty of a Class 2 misdemeanor.

History. 1895, c. 83, s. 1; Rev., s. 3764; C.S., s. 4466; 1969, c. 1224, s. 1; 1993, c. 539, s. 231; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-344. Sale of admission tickets in excess of printed price.

Any person, firm, or corporation shall be allowed to add a reasonable service fee to the face value of the tickets sold, and the person, firm, or corporation which sells or resells such tickets shall not be permitted to recoup funds greater than the combined face value of the ticket, tax, and the authorized service fee. This service fee may not exceed three dollars ($3.00) for each ticket except that a promoter or operator of the property where the event is to be held and a ticket sales agency may agree in writing on a reasonable service fee greater than three dollars ($3.00) for the first sale of tickets by the ticket sales agent. This service fee may be a pre-established amount per ticket or a percentage of each ticket. The existence of the service fee shall be made known to the public by printing or writing the amount of the fee on the tickets which are printed for the event. Any person, firm or corporation which sells or offers to sell a ticket for a price greater than the price permitted by this section or as permitted by G.S. 14-344.1 shall be guilty of a Class 2 misdemeanor.

History. 1941, c. 180; 1969, c. 1224, s. 8; 1977, c. 9; 1979, c. 909; 1981, c. 36; 1985, c. 434; 1991, c. 165, s. 1; 1993, c. 539, s. 232; 1994, Ex. Sess., c. 24, s. 14(c); 2008-158, ss. 3, 4; 2009-255, s. 1.

Editor’s Note.

Session Laws 2009-255, s. 1, amended Session Laws 2008-158, s. 4, to delete the June 30, 2009, expiration date for the 2008 act. Therefore, amendments by Session Laws 2008-158 will not expire. Session Laws 2008-158, s. 4, as amended, makes the amendment by that act effective August 1, 2008, and applicable to offenses committed on or after that date. Session Laws 2008-158, s. 3, inserted “or as permitted by G.S. 14-344.1 ” near the end of this section.

Effect of Amendments.

Session Laws 2008-158, s. 3, effective August 1, 2008, and applicable to offenses committed on or after that date, inserted “or as permitted by G.S. 14-344.1 ” near the end of the paragraph. See Editor’s note for effective date, expiration date, and applicability.

CASE NOTES

Selling Tickets Not Illegal. —

Solicitation to sell tickets in and of itself, without more, is not a crime under any statute or ordinance of record. Roberts v. Swain, 126 N.C. App. 712, 487 S.E.2d 760, 1997 N.C. App. LEXIS 635 , cert. denied, 347 N.C. 270 , 493 S.E.2d 746, 1997 N.C. LEXIS 676 (1997).

Ticket Broker Not Liable. —

Ticket broker was not liable to ticket buyers for violating G.S. 14-344 , because G.S. 14-344 only imposes liability on the seller or, presumably, the seller’s agents. Hill v. StubHub, Inc., 219 N.C. App. 227, 727 S.E.2d 550, 2012 N.C. App. LEXIS 326 (2012).

§ 14-344.1. (Contingent repeal, see note) Internet sale of admission tickets in excess of printed price.

  1. Internet Resale. —  A person may resell an admission ticket under this section on the Internet at a price greater than the price on the face of the ticket only if all of the following conditions are met:
    1. The venue where the event will occur has not prohibited the Internet ticket resale as provided under subsection (b) of this section.
    2. The person reselling the ticket offers the ticket for resale on a Web site with a ticket guarantee that meets the requirements of subsection (c) of this section. A prospective purchaser must be directed to the guarantee before completion of the resale transaction.
    3. The person has obtained a certificate of registration under G.S. 105-164.29 and collects and remits to the State the sales and use tax in accordance with Article 5 of Chapter 105 of the General Statutes.
  2. Resale Prohibited. —  The venue where an event will occur may prohibit the resale of admission tickets for the event at a price greater than the price on the face of the ticket. To prohibit the resale of tickets under this section, the venue must file a notice of prohibition of the resale of admission tickets for a specified event with the Secretary of State and must post the notice of prohibition conspicuously on its Web site. The primary ticket seller for the event must also post the notice conspicuously on its Web site. A prohibition under this subsection may not become valid until 30 days after the notice is posted on the venue’s Web site. The prohibition expires on December 31 of each year unless the prohibition is renewed. To renew a prohibition, a venue must renew its notice of prohibition filed with the Secretary of State and must post the notice as required under this subsection. A venue who files a notice of prohibition must pay a fee in the amount set in G.S. 55-1-22 for filing articles of incorporation. A venue that renews a notice of prohibition must pay a fee in the amount set in G.S. 55-1-22 for filing a paper annual report.
  3. Ticket Guarantee. —  A person who resells or offers to resell admission tickets under this section must guarantee to the purchaser a full refund of the amount paid for the ticket under each of the following conditions:
    1. The ticketed event is cancelled. Reasonable handling and delivery fees may be withheld from the refund price of a cancelled ticketed event if the ticket guarantee on the Web site specifically informs the purchaser that handling and delivery fees will be withheld from the refunded amount.
    2. The purchaser is denied admission to the ticketed event. This subdivision does not apply if admission to the ticketed event is denied to the purchaser because of an action or omission of the purchaser.
    3. The ticket is not delivered to the purchaser in the manner described on the Web site or pursuant to the delivery guarantee made by the reseller, and the failure results in the purchaser’s inability to attend the ticketed event.
  4. Student Tickets. —  This section does not apply to student tickets issued by institutions of higher education in North Carolina for sporting events.
  5. Repealed by Session Laws 2010-31, s. 31.7(c), effective June 30, 2010.

History. 2008-158, s. 1; 2009-255, s. 1; 2010-31, ss. 31.7(b), (c); 2014-3, s. 14.27(a).

Contingent Repeal.

Session Laws 2010-31, s. 31.7(d), provides: “If any provision of this section is declared by a court to violate the Internet Tax Freedom Act, Pub. L. 105-277, §§ 1100-1104, as amended, or is otherwise found to be invalid, then G.S. 14-344.1 is repealed.”

Editor’s Note.

Session Laws 2009-255, s. 1, amended Session Laws 2008-158, s. 4, to delete the June 30, 2009, expiration date for the 2008 act. Therefore, this section as enacted by Session Laws 2008-158 is effective August 1, 2008, and will not expire.

Effect of Amendments.

Session Laws 2010-31, s. 31.7(b) and (c), effective June 30, 2010, rewrote subsection (a), which formerly read: “A person may resell an admission ticket under this section on the Internet at a price greater than the price on the face of the ticket unless the venue where the event will occur prohibits the Internet ticket resale as provided under subsection (b) of this section. To resell an admission ticket under this section, the person reselling the ticket must offer the ticket for resale on a Web site with a ticket guarantee that meets the requirements of subsection (c) of this section. A prospective purchaser must be directed to the guarantee before completion of the resale transaction. A person who resells an admission ticket under this section acknowledges liability for the informational report required under subsection (e) of this section”; and repealed subsection (e), which dealt with the sale or resale of admission tickets.

Session Laws 2014-3, s. 14.27(a), effective December 1, 2014, rewrote subdivision (a)(3). See Editor’s note for applicability.

Legal Periodicals.

For article, “New York’s Unconstitutional Tax on the Internet: Amazon.com v. New York State Department of Taxation & Finance and the Dormant Commerce Clause,” see 88 N.C.L. Rev. 1423 (2010).

§ 14-344.2. Prohibition on ticket purchasing software.

  1. Definition. —  The term “ticket seller” means a person who has executed a written agreement with the management of any venue in North Carolina for a sporting event, theater, musical performance, or public entertainment of any kind to sell tickets to the event over the Internet.
  2. Unfair Trade Practice. —  A person who knowingly sells, gives, transfers, uses, distributes, or possesses software that is primarily designed or produced for the purpose of interfering with the operation of a ticket seller who sells, over the Internet, tickets of admission to a sporting event, theater, musical performance, or public entertainment of any kind by circumventing any security measures on the ticket seller’s Web site, circumventing any access control systems of the ticket seller’s Web site, circumventing any access control solutions of the ticket seller’s Web site, or circumventing any controls or measures that are instituted by the ticket seller on its Web site to ensure an equitable ticket buying process shall be in violation of G.S. 75-1.1 . The ticket seller and venue hosting the ticketed event have standing to bring a private right of action under G.S. 75-1.1 for violation of this section.
  3. Original Ticket Seller. —  A person or firm is not liable under this section with respect to tickets for which the person or firm is the original ticket seller.

History. 2008-158, s. 2; 2009-255, s. 1.

Editor’s Note.

Session Laws 2009-255, s. 1, amended Session Laws 2008-158, s. 4, to delete the June 30, 2009, expiration date for the 2008 act. Therefore, this section as enacted by Session Laws 2008-158 is effective August 1, 2008, and will not expire.

§ 14-345. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(16), effective October 1, 1994.

§ 14-346. Sale of convict-made goods prohibited.

  1. It shall be unlawful to sell or to offer for sale anywhere within the State of North Carolina any articles or commodities manufactured or produced, wholly or in part, in this State or elsewhere by convicts or prisoners, except
    1. Articles or commodities manufactured or produced by convicts on probation or parole or prisoners released part time for regular employment in the free community, and
    2. Products of agricultural or forestry enterprises or quarrying or mining operations in which inmates of any penal or correctional institution of this State are employed, and
    3. Articles and commodities manufactured or produced in any penal or correctional institution of this State for sale to departments, institutions, and agencies supported in whole or in part by the State, or to any political subdivision of this State, for the use of these departments, institutions, agencies, and political subdivisions of the State and not for resale, and
    4. Articles of handicraft made by the inmates of any penal or correctional institution of this State during their leisure hours and with their own materials.
  2. Any person, firm or corporation selling, undertaking to sell, or offering for sale any prison-made or convict-made goods, wares or merchandise, anywhere within the State, in violation of the provisions of this section, shall be guilty of a Class 2 misdemeanor. Each sale or offer to sell, in violation of the provisions of this section, shall constitute a separate offense.

History. 1933, c. 146, ss. 1-4; 1959, c. 170, s. 1; 1969, c. 1224, s. 4; 1993, c. 539, s. 233; 1994, Ex. Sess., c. 24, s. 14(c).

§§ 14-346.1, 14-346.2. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(17), (18).

Article 45. Regulation of Employer and Employee.

§ 14-347. [Repealed]

Repealed by Session Laws 1971, c. 350.

§ 14-348. [Repealed]

Repealed by Session Laws 1971, c. 701.

§ 14-349. [Repealed]

Repealed by Session Laws 1971, c. 351.

§ 14-350. [Repealed]

Repealed by Session Laws 1971, c. 352.

§ 14-351. [Repealed]

Repealed by Session Laws 1971, c. 353.

§ 14-352. [Repealed]

Repealed by Session Laws 1971, c. 354.

§ 14-353. Influencing agents and servants in violating duties owed employers.

Any person who gives, offers or promises to an agent, employee or servant any gift or gratuity whatever with intent to influence his action in relation to his principal’s, employer’s or master’s business; any agent, employee or servant who requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to himself, under an agreement or with an understanding that he shall act in any particular manner in relation to his principal’s, employer’s or master’s business; any agent, employee or servant who, being authorized to procure materials, supplies or other articles either by purchase or contract for his principal, employer or master, or to employ service or labor for his principal, employer or master, receives, directly or indirectly, for himself or for another, a commission, discount or bonus from the person who makes such sale or contract, or furnishes such materials, supplies or other articles, or from a person who renders such service or labor; and any person who gives or offers such an agent, employee or servant such commission, discount or bonus, shall be guilty of a Class 2 misdemeanor.

History. 1913, c. 190, s. 1; C.S., s. 4475; 1969, c. 1224, s. 6; 1993, c. 539, s. 234; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Constitutionality. —

The first two parts of this section are not repugnant to the “due process of law” clause of U.S. Const., Amend. XIV, and to “the law of the land” clause of U.S. Const., Art. I, § 17, and are a reasonable and proper exercise of the police power of the State. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

The acts prohibited in the first clause of this section are stated in words sufficiently explicit, clear and definite to inform any man of ordinary intelligence as to what conduct on his part will render him liable to its penalties. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

Although the second clause of this section employs general terms, the words used are sufficiently explicit and definite to convey to any man of ordinary intelligence and understanding an adequate description of the prohibited act or acts, and to inform him of what conduct on his part will render him liable to its penalties. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

The first two parts of this section are divisible and separable from the remainder of the statute. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

A violation of this section is not a malicious misdemeanor. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

A violation of the first clause of this section is related to unfair trade practices, and is an unfair method of competition. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

And Is Commonly Called “Commercial Bribery.” —

If a person does the prohibited act or acts specified in the first clause of this section with the intent explicitly stated therein, he is guilty of what is commonly called “commercial bribery.” State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

Such Practices Are Generally Prohibited. —

There is general agreement that where an agent or employee receives money or other considerations from a person in return for the agent’s or employee’s efforts to further that person’s interest in business dealings between him and the principal or employer, such an act or acts on the part of the agent or employee and on the part of the person who gives the money or other consideration is an essential element of the offense prohibited. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

The intent specified in the first clause of this section is an essential element of the offense. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

As Is Agreement or Understanding in Second Clause. —

The agreement or understanding in the second clause of this section is an essential element of the offense. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

First Clause Does Not Prohibit Customary Tipping. —

A contention that the language of the first clause of this section is so broad as to prohibit the customary habit of tipping is untenable. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

Since Tipping Lacks Intent to Influence. —

Customary tipping is in obedience to custom or in appreciation of service, and is done with no intent to influence the action of the person receiving the tip in relation to his or her employer’s business, and as to tipping done in such a manner the statute is not applicable. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

But If Such Intent Is Present, Tipping May Be Violation. —

It is possible that a person by tipping an agent, servant or employee with the intent specified in the first clause of this section could bring himself within its penalties, e.g., by giving substantial amounts or considerations and calling them tips. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

Second Clause Is Intended to Prohibit Disloyalty by Employees. —

The plain intent and purpose of the second clause of this section is to prohibit any agent, employee or servant from being disloyal and unfaithful to his principal, employer or master. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

The third and fourth parts of this section refer to a commission, discount or bonus received by any agent, employee or servant under the circumstances therein specified, and to any person who gives or offers such an agent, employee, or servant such commission, discount or bonus. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

Parties to Prohibited Acts Generally Only Witnesses. —

The activities necessary to accomplish the offenses prohibited by this section and similar statutes require no violence, embody no traces in lasting form, and frequently, if not almost entirely, have no witnesses other than persons implicated or potentially implicated. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

Failure to Prove Conspiracy Does Not Bar Conviction of Substantive Offense. —

Although the State failed to prove that one of the defendants was one of the conspirators and was guilty of the conspiracy alleged against him in one count in the indictment, he could still be convicted of the substantive offenses committed by him in violation of this section, as charged against him in other counts. State v. Brewer, 258 N.C. 533 , 129 S.E.2d 262, 1963 N.C. LEXIS 456 (1963).

Jury Instructions. —

Trial court properly refused to instruct the jury on defendant’s G.S. 75-1.1(a) counterclaim based on the fourth prong of G.S. 14-353 that any person who gave or offered an employee authorized to procure materials by purchase or contract for his employer a commission, discount or bonus was guilty of commercial bribery as the proper title of G.S. 14-353 was “Influencing agents and servants in violating duties owed employers,” and the undisputed evidence showed that defendant himself had designed and established the system of payments in question with the explicit purpose of rewarding an employee’s diligence, the cooperation of plaintiff in facilitating such a scheme at defendant’s request could not constitute “influencing agents” to violate their duties to their employers. Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227, 735 S.E.2d 203, 2012 N.C. App. LEXIS 1251 (2012), cert. denied, 366 N.C. 436 , 736 S.E.2d 191, 2013 N.C. LEXIS 79 (2013).

Trial court properly instructed the jury about defendant’s G.S. 75-1.1(a) counterclaim based on the first prong of commercial bribery under G.S. 14-353 where: (1) while a defendant’s intent need not be established to support most unfair and deceptive trade practices claims (UDTP), where the UDTP claim rested upon an allegation under the first prong of the commercial bribery statute, proof of the defendant’s intent to influence the actions of another’s employee had to be proven; (2) as reflected by G.S. 14-353 ’s title and the very definition of the term, as well as by common sense, commercial bribery involved an inducement to give the bribe-giver an unfair advantage or benefit in a business relationship; and (3) acts of commercial bribery had to result in or be intended to result in some disloyalty or harm to the employer and some benefit to the bribe-giver. Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227, 735 S.E.2d 203, 2012 N.C. App. LEXIS 1251 (2012), cert. denied, 366 N.C. 436 , 736 S.E.2d 191, 2013 N.C. LEXIS 79 (2013).

§ 14-354. Witness required to give self-incriminating evidence; no suit or prosecution to be founded thereon.

No person shall be excused from attending, testifying or producing books, papers, contracts, agreements and other documents before any court, or in obedience to the subpoena of any court, having jurisdiction of the crime denounced in G.S. 14-353 , on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate him or to subject him to a penalty or to a forfeiture; but no person shall be liable to any suit or prosecution, civil or criminal, for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, before such court or in obedience to its subpoena or in any such case or proceeding: Provided, that no person so testifying or producing any such books, papers, contracts, agreements or other documents shall be exempted from prosecution and punishment for perjury committed in so testifying.

History. 1913, c. 190, s. 2; C.S., s. 4476.

Cross References.

As to constitutional provisions against self-incriminating evidence, see N.C. Const., Art. I, § 11, and note thereto, and the U.S. Const., Amend. V.

Legal Periodicals.

For article discussing the limits to self-incrimination, see 15 N.C.L. Rev. 229 (1937).

§ 14-355. Blacklisting employees.

If any person, agent, company or corporation, after having discharged any employee from his or its service, shall prevent or attempt to prevent, by word or writing of any kind, such discharged employee from obtaining employment with any other person, company or corporation, such person, agent or corporation shall be guilty of a Class 3 misdemeanor and shall be punished by a fine not exceeding five hundred dollars ($500.00); and such person, agent, company or corporation shall be liable in penal damages to such discharged person, to be recovered by civil action. This section shall not be construed as prohibiting any person or agent of any company or corporation from furnishing in writing, upon request, any other person, company or corporation to whom such discharged person or employee has applied for employment, a truthful statement of the reason for such discharge.

History. 1909, c. 858, s. 1; C.S., s. 4477; 1993, c. 539, s. 235; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For note on workers’ compensation and retaliatory discharge, see 58 N.C.L. Rev. 629 (1980).

CASE NOTES

Intent of Section. —

This section was intended to correct the abuse under the common law of statements made concerning a discharged employee out of malice, where damages for the loss of employment were difficult of admeasurement, and under the provisions of the act a statement made as to the standing of the discharged employee is not privileged, if made maliciously. Seward v. Receivers of Seaboard Air Line Ry., 159 N.C. 241 , 75 S.E. 34, 1912 N.C. LEXIS 265 (1912).

Remedial Provisions. —

The provisions of this section and former G.S. 14-356 are remedial and do not put the burden upon the plaintiff of showing either malice or actual damages. Goins v. Sargent, 196 N.C. 478 , 146 S.E. 131, 1929 N.C. LEXIS 21 (1929).

What Constitutes a Violation. —

Where an employer has discharged his employee for being a member of a lawful association of like employees, and has advised others, without a request from them, who would have engaged the services of such employee that he would not sell his product to them should they employ him, and thus has prevent the discharged employee from getting employment within the State, and forced him to obtain employment in another state, depriving him of his living at home here with his family, etc., the employee is entitled to recover damages in his civil action against his former employer, and a demurrer ore tenus to a complaint setting forth this cause of action is bad. Goins v. Sargent, 196 N.C. 478 , 146 S.E. 131, 1929 N.C. LEXIS 21 (1929).

Pleading. —

Employee’s claims for blacklisting, invasion of privacy, and violation of North Carolina recording law were dismissed because employee failed to allege any facts supporting the claims; because employee alleged no facts, the reasonable inference was that claims were based solely on speculation. Miller v. Carolinas Healthcare Sys., 2013 U.S. Dist. LEXIS 86250 (W.D.N.C. June 18, 2013), aff'd in part, vacated in part, 561 Fed. Appx. 239, 2014 U.S. App. LEXIS 4712 (4th Cir. 2014).

Request from Prospective Employer. —

Statements made about a former employee in response to a request from a prospective employer are privileged under this section; for this section to be violated, the statements to the prospective employer would have to be unsolicited. Friel v. Angell Care Inc., 113 N.C. App. 505, 440 S.E.2d 111, 1994 N.C. App. LEXIS 107 (1994).

Employer’s comments regarding an employee’s workers compensation claim and lawsuit were made in response to inquiries by prospective employers concerning job applications made by the employee; such truthful statements made by the employer in the course of the inquiries were privileged under G.S. 14-355 , and the trial court’s grant of summary judgment on the employee’s claim of blacklisting was appropriate. Holroyd v. Montgomery County, 167 N.C. App. 539, 606 S.E.2d 353, 2004 N.C. App. LEXIS 2379 (2004), cert. denied, 359 N.C. 631 , 613 S.E.2d 690, 2005 N.C. LEXIS 512 (2005).

In an action in which a former employee alleged that prospective employers refused to hire her based on information contained in a report that her former employer filed with a consumer reporting agency, the employee’s claim for blacklisting under G.S. 14-355 was preempted by 15 U.S.C.S. § 1681t(b)(1)(F) of the Fair Credit Reporting Act because the claim arose under state statutory law and the claim was based on action taken by the former employer while furnishing information to a consumer reporting agency. Joiner v. Revco Disc. Drug Ctrs., Inc., 467 F. Supp. 2d 508, 2006 U.S. Dist. LEXIS 89920 (W.D.N.C. 2006).

Negative References Not Unsolicited. —

Plaintiff’s claim under this section was dismissed where the negative references given about him were given in response to the requests of potential employers, and for this section to be violated, the statements to the prospective employer would have had to have been unsolicited. Cortes v. McDonald's Corp., 955 F. Supp. 531, 1996 U.S. Dist. LEXIS 20336 (E.D.N.C.), amended, 955 F. Supp. 531, 1996 U.S. Dist. LEXIS 19948 (E.D.N.C. 1996).

Punitive damages may not be recovered against a municipality absent statutory authorization; thus, plaintiff could not seek punitive damages from police chief in his official capacity. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, 1998 N.C. App. LEXIS 37 (1998).

§ 14-356. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(16).

§ 14-357. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(19).

§ 14-357.1. Requiring payment for medical examination, etc., as condition of employment.

  1. It shall be unlawful for any employer, as defined in subsection (b) of this section, to require any applicant for employment, as defined in subsection (c), to pay the cost of a medical examination or the cost of furnishing any records required by the employer as a condition of the initial act of hiring.
  2. The term “employer” as used in this section shall mean and include an individual, a partnership, an association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy, and any common carrier by rail, motor, water, air, or express company, doing business in or operating within the State.Provided that this section shall not apply to any employer as defined in this subsection who employs less than 25 employees.
  3. The term “applicant for employment” shall mean and include any person who seeks to be permitted, required or directed by any employer, as defined in subsection (b) hereof, in consideration of direct or indirect gain or profit, to engage in employment.
  4. Any employer who violates the provisions of this section shall be liable to a fine of not more than one hundred dollars ($100.00) for each and every violation. It shall be the duty of the Commissioner of Labor to enforce this section.

History. 1951, c. 1094.

Article 46. Regulation of Landlord and Tenant.

§ 14-358. Local: Violation of certain contracts between landlord and tenant.

If any tenant or cropper shall procure advances from his landlord to enable him to make a crop on the land rented by him, and then willfully abandon the same without good cause and before paying for such advances with intent to defraud the landlord; or if any landlord shall contract with a tenant or cropper to furnish him advances to enable him to make a crop, and shall willfully fail or refuse, without good cause, to furnish such advances according to his agreement with intent to defraud the tenant, he shall be guilty of a Class 3 misdemeanor. Any person employing a tenant or cropper who has violated the provisions of this section, with knowledge of such violation, shall be liable to the landlord furnishing such advances for the amount thereof, and shall also be guilty of a Class 3 misdemeanor. This section shall apply to the following counties only: Alamance, Alexander, Beaufort, Bertie, Bladen, Cabarrus, Camden, Caswell, Chowan, Cleveland, Columbus, Craven, Cumberland, Currituck, Duplin, Edgecombe, Gaston, Gates, Greene, Halifax, Harnett, Hertford, Johnston, Jones, Lee, Lenoir, Lincoln, Martin, Mecklenburg, Montgomery, Nash, Northampton, Onslow, Pamlico, Pender, Perquimans, Person, Pitt, Randolph, Robeson, Rockingham, Rowan, Rutherford, Sampson, Stokes, Surry, Tyrrell, Vance, Wake, Warren, Washington, Wayne, Wilson and Yadkin.

History. 1905, cc. 297, 383, 445, 820; Rev., s. 3366; 1907, c. 8; c. 84, s. 1; c. 595, s. 1; cc. 639, 719, 869; Pub. Loc. 1915, c. 18; C.S., s. 4480; Ex. Sess. 1920, c. 26; 1925, c. 285, s. 2; Pub. Loc. 1925, c. 211; Pub. Loc. 1927, c. 614; 1931, c. 136, s. 1; 1945, c. 635; 1953, c. 474; 1983, c. 623; 1993, c. 539, s. 237; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to ejectment of tenant, see G.S. 42-26 .

CASE NOTES

Averment of Fraud Is Essential. —

The provisions of this section contravene N.C. Const., Art. I, § 16, prohibiting imprisonment for debt, except in cases of fraud; and an indictment thereunder, without averment of fraud, will be quashed. State v. Williams, 150 N.C. 802 , 63 S.E. 949, 1909 N.C. LEXIS 159 (1909); Minton v. Early, 183 N.C. 199 , 111 S.E. 347, 1922 N.C. LEXIS 235 (1922).

Insufficient Indictment. —

An indictment under the provisions of this section which does not charge that the abandonment of the crop by tenant or cropper was “without cause” and “before paying for such advances” should be quashed as insufficient. State v. Williams, 150 N.C. 802 , 63 S.E. 949, 1909 N.C. LEXIS 159 (1909).

§ 14-359. Local: Tenant neglecting crop; landlord failing to make advances; harboring or employing delinquent tenant.

If any tenant or cropper shall procure advances from his landlord to enable him to make a crop on the land rented by him, and then willfully refuse to cultivate such crops or negligently or willfully abandon the same without good cause and before paying for such advances with intent to defraud the landlord; or if any landlord who induces another to become tenant or cropper by agreeing to furnish him advances to enable him to make a crop, shall willfully fail or refuse without good cause to furnish such advances according to his agreement with intent to defraud the tenant, or if any person shall entice, persuade or procure any tenant, lessee or cropper, who has made a contract agreeing to cultivate the land of another, to abandon or to refuse or fail to cultivate such land with intent to defraud the landlord, or after notice shall harbor or detain on his own premises, or on the premises of another, any such tenant, lessee or cropper, he shall be guilty of a Class 3 misdemeanor. Any person who employs a tenant or cropper who has violated the provisions of this section, with knowledge of such violation, shall be liable to the landlord furnishing such advances, for the amount thereof. This section shall apply only to the following counties: Alamance, Anson, Cabarrus, Caswell, Davidson, Franklin, Granville, Halifax, Harnett, Hertford, Hoke, Hyde, Lee, Lincoln, Moore, Person, Randolph, Richmond, Rockingham, Rowan, Rutherford, Sampson, Stanly, Stokes, Union, Vance, Wake and Washington.

History. 1905, c. 299, ss. 1-7; Rev., s. 3367; 1907, c. 84, s. 2; c. 238, s. 1; c. 543; c. 595, s. 2; c. 810; C.S., s. 4481; Ex. Sess. 1920, cc. 20, 26; 1923, c. 32; 1925, c. 285, s. 3; Pub. Loc. 1927, c. 614; 1929, c. 5, s. 1; 1931, c. 44; c. 136, s. 2; 1939, c. 95; 1945, c. 635; 1949, c. 83; 1951, c. 615; 1993, c. 539, s. 238; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to willful destruction of landlord’s property by the tenant, see G.S. 42-11 .

Article 47. Cruelty to Animals.

§ 14-360. Cruelty to animals; construction of section.

  1. If any person shall intentionally overdrive, overload, wound, injure, torment, kill, or deprive of necessary sustenance, or cause or procure to be overdriven, overloaded, wounded, injured, tormented, killed, or deprived of necessary sustenance, any animal, every such offender shall for every such offense be guilty of a Class 1 misdemeanor.

    (a1) If any person shall maliciously kill, or cause or procure to be killed, any animal by intentional deprivation of necessary sustenance, that person shall be guilty of a Class H felony.

  2. If any person shall maliciously torture, mutilate, maim, cruelly beat, disfigure, poison, or kill, or cause or procure to be tortured, mutilated, maimed, cruelly beaten, disfigured, poisoned, or killed, any animal, every such offender shall for every such offense be guilty of a  Class H felony. However, nothing in this section shall be construed to increase the penalty for cockfighting provided for in G.S. 14-362 .
  3. As used in this section, the words “torture”, “torment”, and “cruelly” include or refer to any act, omission, or neglect causing or permitting unjustifiable pain, suffering, or death. As used in this section, the word “intentionally” refers to an act committed knowingly and without justifiable excuse, while the word “maliciously” means an act committed intentionally and with malice or bad motive. As used in this section, the term “animal” includes every living vertebrate in the classes Amphibia, Reptilia, Aves, and Mammalia except human beings. However, this section shall not apply to the following activities:
    1. The lawful taking of animals under the jurisdiction and regulation of the Wildlife Resources Commission, except that this section shall apply to those birds other than pigeons exempted by the Wildlife Resources Commission from its definition of “wild birds” pursuant to G.S. 113-129(15a).
    2. Lawful activities conducted for purposes of biomedical research or training or for purposes of production of livestock, poultry, or aquatic species.

      (2a) Lawful activities conducted for the primary purpose of providing food for human or animal consumption.

    3. Activities conducted for lawful veterinary purposes.
    4. The lawful destruction of any animal for the purposes of protecting the public, other animals, property, or the public health.
    5. The physical alteration of livestock or poultry for the purpose of conforming with breed or show standards.

History. 1881, c. 34, s. 1; c. 368, ss. 1, 15; Code, ss. 2482, 2490; 1891, c. 65; Rev., s. 3299; 1907, c. 42; C.S., s. 4483; 1969, c. 1224, s. 2; 1979, c. 641; 1985 (Reg. Sess., 1986), c. 967, s. 1; 1989, c. 670, s. 1; 1993, c. 539, s. 239; 1994, Ex. Sess., c. 24, s. 14(c); 1998-212, s. 17.16(c); 1999-209, s. 8; 2007-211, ss. 1, 2; 2010-16, ss. 1, 2; 2015-286, s. 4.32(a).

Cross References.

As to livestock, see also G.S. 14-366 .

Effect of Amendments.

Session Laws 2007-211, ss. 1, 2, added subsection (a1) and subdivision (c)(5). For effective dates and applicability, see editor’s note.

Session Laws 2010-16, ss. 1 and 2, effective December 1, 2010, and applicable to offenses committed on or after that date, in subsections (a1) and (b), substituted “Class H felony” for “Class A1 misdemeanor” and “Class I felony” respectively.

Session Laws 2015-286, s. 4.32(a), effective October 22, 2015, inserted “other than pigeons” in subdivision (c)(1).

Legal Periodicals.

For comment, “The Hidden Dichotomy in the Law of Morality,” see 31 Campbell L. Rev. 591 (2009).

CASE NOTES

Constitutionality. —

Since G.S. 14-360 and N.C. Admin. Code tit. 15, r. 10B.0121 fail to give a person a reasonable opportunity to know whether shooting a particular pigeon is prohibited, and fail to provide standards for those applying the law, G.S. 14-360 , in its entirety, is unconstitutionally void for vagueness, as applied to a pigeon shoot. Malloy v. Cooper, 162 N.C. App. 504, 592 S.E.2d 17, 2004 N.C. App. LEXIS 189 (2004).

This section is for the protection of animals. Belk v. Boyce, 263 N.C. 24 , 138 S.E.2d 789, 1964 N.C. LEXIS 761 (1964).

It is not for the protection of trespassers or mere licensees. Belk v. Boyce, 263 N.C. 24 , 138 S.E.2d 789, 1964 N.C. LEXIS 761 (1964).

Hence, Unlawful Shooting at Dog Is Not Negligence Per Se. —

Where plaintiff, who was struck by a bullet fired by defendant, was at best a mere licensee, the fact that defendant was unlawfully shooting at a dog did not render the act negligence per se, nor impose on defendant absolute liability. Since this section is not for the protection of the class to which plaintiff belonged, its violation did not impose liability in the absence of a showing that defendant knew, or in the exercise of reasonable care should have known, of plaintiff’s presence in the vicinity. Belk v. Boyce, 263 N.C. 24 , 138 S.E.2d 789, 1964 N.C. LEXIS 761 (1964).

Warrantless Seizure Violated Fourth Amendment. —

Seizure of emaciated horses from an open field was an unreasonable seizure under the Fourth Amendment where the animal control officers, who had to cut an electrical fence to obtain access to the animals, and who spent three days making arrangements for the seizure of the horses, failed to obtain a warrant during that time. State v. Nance, 149 N.C. App. 734, 562 S.E.2d 557, 2002 N.C. App. LEXIS 315 (2002).

The word “willful” as used in criminal statutes signifies more than the mere intention to do a thing, and means the commission of the act “without just cause, excuse, or justification.” State v. Dickens, 215 N.C. 303 , 1 S.E.2d 837, 1939 N.C. LEXIS 253 (1939); State v. Fowler, 22 N.C. App. 144, 205 S.E.2d 749, 1974 N.C. App. LEXIS 2261 (1974).

Unnecessary suffering knowingly and willfully permitted constitutes the offense. State v. Porter, 112 N.C. 887 , 16 S.E. 915, 1893 N.C. LEXIS 309 (1893).

Finding Required for Conviction. —

In order to convict there must be a finding that the act was “willfully and unlawfully” done. State v. Tweedy, 115 N.C. 704 , 20 S.E. 183, 1894 N.C. LEXIS 296 (1894).

A dog is a useful animal within the meaning of this section. State v. Dickens, 215 N.C. 303 , 1 S.E.2d 837, 1939 N.C. LEXIS 253 (1939).

Unnecessary to Show Dog Has Pecuniary Value. —

It is unnecessary to show that a dog is of a pecuniary value to the owner to maintain an indictment for cruelty forbidden by the section. Smith v. State, 156 N.C. 628 , 72 S.E. 321, 1911 N.C. LEXIS 237 (1911).

Punishment in Effort to Train. —

Punishment administered to an animal in an honest and good faith effort to train it is not without justification and not willful. State v. Fowler, 22 N.C. App. 144, 205 S.E.2d 749, 1974 N.C. App. LEXIS 2261 (1974).

Anger No Excuse. —

Anger does not excuse the killing when it was willful and needless. And under such circumstances the intent is immaterial. State v. Neal, 120 N.C. 613 , 27 S.E. 81, 1897 N.C. LEXIS 144 (1897).

Evidence of Dog’s Presence on Property Properly Excluded. —

In a prosecution for needlessly killing a useful dog, evidence that a dog, not identified as the dog killed, had frequented the place where defendant was employed, resulting in unpleasant odors around the place, and that the dog had barked at night, is properly excluded from the evidence upon the State’s objection, since the evidence does not tend to establish justification, the presence of the dog on the premises giving the defendant only the right to drive him away but not to injure him unnecessarily, and previous offenses committed by the dog not being justification for killing him, the right to kill being founded on the immediate necessity of protecting property, a person, or another animal. State v. Dickens, 215 N.C. 303 , 1 S.E.2d 837, 1939 N.C. LEXIS 253 (1939).

Injury to Prevent Depredations No Defense. —

The fact that cows (State v. Butts, 92 N.C. 784 (1885)) or chickens (State v. Neal, 120 N.C. 613 , 27 S.E. 81 (1897)) were trespassing on defendant’s property was not a defense to an action under this section, where the killing or wounding was unnecessary. See also Smith v. State, 156 N.C. 628 , 72 S.E. 321, 1911 N.C. LEXIS 237 (1911).

Indictment. —

The facts constituting torturing, tormenting or cruel conduct must be set out when such conduct is charged. State v. Watkins, 101 N.C. 702 , 8 S.E. 346, 1888 N.C. LEXIS 123 (1888).

A charge that defendant “did unlawfully and willfully beat” was held sufficient in State v. Allison, 90 N.C. 733 , 1884 N.C. LEXIS 320 (1884).

Illustrations. —

Shooting pigeons for sport (State v. Porter, 112 N.C. 887 , 16 S.E. 915 (1893)) and poisoning chickens (State v. Bossee, 145 N.C. 579 , 59 S.E. 879 (1907)) have been held violations of the section.

Hitting a runaway horse with a rock, however, has been held insufficient to sustain a direct verdict; the question of the willful purpose to injure being for the jury. State v. Isley, 119 N.C. 862 , 26 S.E. 35, 1896 N.C. LEXIS 395 (1896).

Jury Instructions. —

Defendant was properly convicted of felonious cruelty to animals and conspiracy to commit felonious cruelty to animals because the trial court properly instructed the jury according to the North Carolina pattern jury instructions, and the court responded appropriately to a question posed by the jury regarding the jury instructions. State v. Gerberding, 237 N.C. App. 502, 767 S.E.2d 334, 2014 N.C. App. LEXIS 1212 (2014).

Evidence Sufficient to Sustain Conviction. —

Evidence that defendant knew that (1) dogs were being kept, with defendant’s consent, at her home and in her backyard, (2) the dogs were tied up with no shelter, food, or water, and the dogs had been allowed to become emaciated, and (3) one dead dog had been left, still tied up, to the point of decay, was sufficient to support a conviction for misdemeanor cruelty to animals. State v. Coble, 163 N.C. App. 335, 593 S.E.2d 109, 2004 N.C. App. LEXIS 368 (2004).

Trial court did not err in submitting the cruelty to animals charge against defendant to the jury because the evidence was sufficient to support a conclusion by a reasonable jury that defendant “tormented” a cat, causing it unjustifiable pain or suffering under G.S. 14-360(c); the evidence tended to establish that the odor of cat feces and ammonia emanating from defendant’s house was strong enough that it could be smelled outside of the property, and animal control officers observed that all the doors and windows were closed, feces and urine covered everything, and cats, covered in their own feces and urine, were leaving streak marks from jumping on the walls, windows, and doors trying to get out of the house. State v. Mauer, 202 N.C. App. 546, 688 S.E.2d 774, 2010 N.C. App. LEXIS 273 (2010).

Trial Court Erred in Ordering Defendant to Pay Restitution. —

Trial court erred in ordering defendant to pay restitution to animal control after she was convicted of misdemeanor cruelty to animals because no evidence was presented at trial or sentencing supporting the restitution worksheet. State v. Mauer, 202 N.C. App. 546, 688 S.E.2d 774, 2010 N.C. App. LEXIS 273 (2010).

§ 14-360.1. Immunity for veterinarian reporting animal cruelty.

Any veterinarian licensed in this State who has reasonable cause to believe that an animal has been the subject of animal cruelty in violation of G.S. 14-360 and who makes a report of animal cruelty, or who participates in any investigation or testifies in any judicial proceeding that arises from a report of animal cruelty, shall be immune from civil liability, criminal liability, and liability from professional disciplinary action and shall not be in breach of any veterinarian-patient confidentiality, unless the veterinarian acted in bad faith or with a malicious purpose. It shall be a rebuttable presumption that the veterinarian acted in good faith. A failure by a veterinarian to make a report of animal cruelty shall not constitute grounds for disciplinary action under G.S. 90-187.8 .

History. 2007-232, s. 1.

§ 14-361. Instigating or promoting cruelty to animals.

If any person shall willfully set on foot, or instigate, or move to, carry on, or promote, or engage in, or do any act towards the furtherance of any act of cruelty to any animal, he shall be guilty of a Class 1 misdemeanor.

History. 1881, c. 368, s. 6; Code, s. 2487; 1891, c. 65; Rev., s. 3300; C.S., s. 4484; 1953, c. 857, s. 1; 1969, c. 1224, s. 3; 1985 (Reg. Sess., 1986), c. 967, s. 1; 1989, c. 670, s. 2; 1993, c. 539, s. 240; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-361.1. Abandonment of animals.

Any person being the owner or possessor, or having charge or custody of an animal, who willfully and without justifiable excuse abandons the animal is guilty of a Class 2 misdemeanor.

History. 1979, c. 687; 1985 (Reg. Sess., 1986), c. 967, s. 2; 1989, c. 670, s. 3; 1993, c. 539, s. 241; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-362. Cockfighting.

A person who instigates, promotes, conducts, is employed at, allows property under his ownership or control to be used for, participates as a spectator at, or profits from an exhibition featuring the fighting of a cock is guilty of a Class I felony. A lease of property that is used or is intended to be used for an exhibition featuring the fighting of a cock is void, and a lessor who knows this use is made or is intended to be made of his property is under a duty to evict the lessee immediately.

History. 1881, c. 368, s. 2; Code, s. 2483; 1891, c. 65; Rev., s. 3301; C.S., s. 4485; 1953, c. 857, s. 2; 1969, c. 1224, s. 3; 1985 (Reg. Sess., 1986), c. 967, s. 3; 1993, c. 539, s. 242; 1994, Ex. Sess., c. 24, s. 14(c); 2005-437, s. 1.

Effect of Amendments.

Session Laws 2005-437, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, made a minor stylistic change in the section heading, and substituted “Class I felony” for “Class 2 misdemeanor” in the first sentence.

§ 14-362.1. Animal fights and baiting, other than cock fights, dog fights and dog baiting.

  1. A person who instigates, promotes, conducts, is employed at, provides an animal for, allows property under his ownership or control to be used for, or profits from an exhibition featuring the fighting or baiting of an animal, other than a cock or a dog, is guilty of a Class 2 misdemeanor. A lease of property that is used or is intended to be used for an exhibition featuring the fighting or baiting of an animal, other than a cock or a dog, is void, and a lessor who knows this use is made or is intended to be made of his property is under a duty to evict the lessee immediately.
  2. A person who owns, possesses, or trains an animal, other than a cock or a dog, with the intent that the animal be used in an exhibition featuring the fighting or baiting of that animal or any other animal is guilty of a Class 2 misdemeanor.
  3. A person who participates as a spectator at an exhibition featuring the fighting or baiting of an animal, other than a cock or a dog, is guilty of a Class 2 misdemeanor.
  4. A person who commits an offense under subsection (a) within three years after being convicted of an offense under this section is guilty of a Class I felony.
  5. This section does not prohibit the lawful taking or training of animals under the jurisdiction and regulation of the Wildlife Resources Commission.

History. 1985 (Reg. Sess., 1986), c. 967, s. 5; 1993, c. 539, ss. 243, 1236; 1994, Ex. Sess., c. 24, s. 14(c); 1997-78, s. 2.

§ 14-362.2. Dog fighting and baiting.

  1. A person who instigates, promotes, conducts, is employed at, provides a dog for, allows property under the person’s ownership or control to be used for, gambles on, or profits from an exhibition featuring the baiting of a dog or the fighting of a dog with another dog or with another animal is guilty of a Class H felony. A lease of property that is used or is intended to be used for an exhibition featuring the baiting of a dog or the fighting of a dog with another dog or with another animal is void, and a lessor who knows this use is made or is intended to be made of the lessor’s property is under a duty to evict the lessee immediately.
  2. A person who owns, possesses, or trains a dog with the intent that the dog be used in an exhibition featuring the baiting of that dog or the fighting of that dog with another dog or with another animal is guilty of a Class H felony.
  3. A person who participates as a spectator at an exhibition featuring the baiting of a dog or the fighting of a dog with another dog or with another animal is guilty of a Class H felony.
  4. This section does not prohibit the use of dogs in the lawful taking of animals under the jurisdiction and regulation of the Wildlife Resources Commission.
  5. This section does not prohibit the use of dogs in earthdog trials that are sanctioned or sponsored by entities approved by the Commissioner of Agriculture that meet standards that protect the health and safety of the dogs. Quarry at an earthdog trial shall at all times be kept separate from the dogs by a sturdy barrier, such as a cage, and have access to food and water.
  6. This section does not apply to the use of herding dogs engaged in the working of domesticated livestock for agricultural, entertainment, or sporting purposes.

History. 1997-78, s. 1; 2006-113, s. 3.1; 2006-259, s. 37; 2007-180, s. 1; 2007-181, s. 1.

Effect of Amendments.

Session Laws 2006-113, s. 3.1, as amended by Session Laws 2006-259, s. 37, effective December 1, 2006, and applicable to offenses committed on or after that date, throughout the section, deleted the language “fighting or” preceding “baiting” and added the language “or the fighting of a dog with another dog or with another animal”; in subsection (a) substituted “the person’s” for “his” in the first sentence and “the lessor’s” for “his” in the second sentence; and added subsection (d).

Session Laws 2007-180, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, added subsection (e).

Session Laws 2007-181, s. 1, effective July 5, 2007, added subsection (f).

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 417.

CASE NOTES

Constitutionality. —

To discourage spectators at dogfights is a valid exercise of the State’s police power and G.S. 14-362.2 , making being a spectator at a dogfight a criminal offense, is not unconstitutionally vague nor overbroad. State v. Arnold, 147 N.C. App. 670, 557 S.E.2d 119, 2001 N.C. App. LEXIS 1244 (2001), aff'd, 356 N.C. 291 , 569 S.E.2d 648, 2002 N.C. LEXIS 935 (2002).

Evidence Held Sufficient. —

Because the evidence was sufficient for a reasonable juror to find that defendant intended to engage in dogfighting, the trial court did not err by denying the motion to dismiss. The State presented evidence that officers recovered medication commonly used in dogfighting operations, the property contained an area that appeared to be a dogfighting pit or training area, and the officers recovered dogfighting publications and “keep notes” for preparing a dog to fight. State v. Crew, 868 S.E.2d 351, 2022- NCCOA-35, 2022 N.C. App. LEXIS 29 (N.C. Ct. App. 2022).

§ 14-362.3. Restraining dogs in a cruel manner.

A person who maliciously restrains a dog using a chain or wire grossly in excess of the size necessary to restrain the dog safely is guilty of a Class 1 misdemeanor. For purposes of this section, “maliciously” means the person imposed the restraint intentionally and with malice or bad motive.

History. 2001-411, s. 2.

§ 14-363. Conveying animals in a cruel manner.

If any person shall carry or cause to be carried in or upon any vehicle or other conveyance, any animal in a cruel or inhuman manner, he shall be guilty of a Class 1 misdemeanor. Whenever an offender shall be taken into custody therefor by any officer, the officer may take charge of such vehicle or other conveyance and its contents, and deposit the same in some safe place of custody. The necessary expenses which may be incurred for taking charge of and keeping and sustaining the vehicle or other conveyance shall be a lien thereon, to be paid before the same can be lawfully reclaimed; or the said expenses, or any part thereof remaining unpaid, may be recovered by the person incurring the same of the owner of such animal in an action therefor.

History. 1881, c. 368, s. 5; Code, s. 2486; 1891, c. 65; Rev., s. 3302; C.S., s. 4486; 1953, c. 857, s. 3; 1969, c. 1224, s. 4; 1985 (Reg. Sess., 1986), c. 967, s. 1; 1989, c. 670, s. 4; 1993, c. 539, s. 244; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to double damages for injury to agricultural commodities or production systems, see G.S. 1-539.2 B.

§ 14-363.1. Living baby chicks or other fowl, or rabbits under eight weeks of age; disposing of as pets or novelties forbidden.

If any person, firm or corporation shall sell, or offer for sale, barter or give away as premiums living baby chicks, ducklings, or other fowl or rabbits under eight weeks of age as pets or novelties, such person, firm or corporation shall be guilty of a Class 3 misdemeanor. Provided, that nothing contained in this section shall be construed to prohibit the sale of nondomesticated species of chicks, ducklings, or other fowl, or of other fowl from proper brooder facilities by hatcheries or stores engaged in the business of selling them for purposes other than for pets or novelties.

History. 1973, c. 466, s. 1; 1985 (Reg. Sess., 1986), c. 967, s. 4; 1993, c. 539, s. 245; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-363.2. Confiscation of cruelly treated animals.

Conviction of any offense contained in this Article may result in confiscation of cruelly treated animals belonging to the accused and it shall be proper for the court in its discretion to order a final determination of the custody of the confiscated animals.

History. 1979, c. 640.

§ 14-363.3. Confinement of animals in motor vehicles.

  1. In order to protect the health and safety of an animal, any animal control officer, animal cruelty investigator appointed under G.S. 19A-45 , law enforcement officer, firefighter, or rescue squad worker, who has probable cause to believe that an animal is confined in a motor vehicle under conditions that are likely to cause suffering, injury, or death to the animal due to heat, cold, lack of adequate ventilation, or under other endangering conditions, may enter the motor vehicle by any reasonable means under the circumstances after making a reasonable effort to locate the owner or other person responsible for the animal.
  2. Nothing in this section shall be construed to apply to the transportation of horses, cattle, sheep, swine, poultry, or other livestock.

History. 2013-377, s. 6.

Article 48. Animal Diseases. [Repealed]

§ 14-364. [Repealed]

Repealed by Session Laws 1945, c. 635.

Article 49. Protection of Livestock Running at Large.

§ 14-365. [Repealed]

Repealed by Session Laws 1971, c. 110.

§ 14-366. Molesting or injuring livestock.

If any person shall unlawfully and on purpose drive any livestock, lawfully running at large in the range, from said range, or shall kill, maim or injure any livestock, lawfully running at large in the range or in the field or pasture of the owner, whether done with actual intent to injure the owner, or to drive the stock from the range, or with any other unlawful intent, every such person, his counselors, aiders, and abettors, shall be guilty of a Class 2 misdemeanor: provided, that nothing herein contained shall prohibit any person from driving out of the range any stock unlawfully brought from other states or places. In any indictment under this section it shall not be necessary to name in the bill or prove on the trial the owner of the stock molested, maimed, killed or injured. Any person violating any provision of this section shall be guilty of a Class 2 misdemeanor.

History. 1850, c. 94, ss. 1, 2; R.C., c. 34, s. 104; Code, s. 1002; 1885, c. 383; 1887, c. 368; 1895, c. 190; Rev., s. 3314; C.S., s. 4494; 1969, c. 1224, s. 9; 1993, c. 539, s. 246; 1994, Ex. Sess., c. 24, s. 14(c).

Local Modification.

Graham, Haywood, Jackson, Swain, Transylvania: C.S. 4494.

Cross References.

As to double damages for injury to agricultural commodities or production systems, see G.S. 1-539.2 B.

As to cruelty to animals, see G.S. 14-360 .

§ 14-367. Altering the brands of and misbranding another’s livestock.

If any person shall knowingly alter or deface the mark or brand of any other person’s horse, mule, ass, neat cattle, sheep, goat, or hog, or shall knowingly mismark or brand any such beast that may be unbranded or unmarked, not properly his own, with intent to defraud any other person, the person so offending shall be guilty of a Class H felony.

History. 1797, c. 485, s. 2, P.R; R.C., c. 34, s. 57; Code, s. 1001; Rev., s. 3317; C.S., s. 4495; 1993, c. 539, s. 1237; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to cattle brands, their registration, defacement, etc., see G.S. 80-45 et seq.

§ 14-368. Placing poisonous shrubs and vegetables in public places.

If any person shall throw into or leave exposed in any public square, street, lane, alley or open lot in any city, town or village, or in any public road, any mock orange or other poisonous shrub, plant, tree or vegetable, he shall be liable in damages to any person injured thereby and shall also be guilty of a Class 2 misdemeanor.

History. 1887, c. 338; Rev., s. 3318; C.S., s. 4496; 1969, c. 1224, s. 3; 1993, c. 539, s. 247; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to putting out poisonous foodstuffs, see G.S. 14-401 .

§ 14-369. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(20).

Article 50. Protection of Letters, Telegrams, and Telephone Messages.

§ 14-370. Wrongfully obtaining or divulging knowledge of telephonic messages.

If any person wrongfully obtains, or attempts to obtain, any knowledge of a telephonic message by connivance with a clerk, operator, messenger or other employee of a telephone company, or, being such clerk, operator, messenger or employee, willfully divulges to any but the person for whom it was intended, the contents of a telephonic message or dispatch intrusted to him for transmission or delivery, or the nature thereof, he shall be guilty of a Class 2 misdemeanor.

History. 1903, c. 599; Rev., s. 3848; C.S., s. 4497; 1993, c. 539, s. 248; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-371. Violating privacy of telegraphic messages; failure to transmit and deliver same promptly.

If any person wrongfully obtains, or attempts to obtain, any knowledge of a telegraphic message by connivance with a clerk, operator, messenger, or other employee of a telegraph company, or, being such clerk, operator, messenger, or other employee, willfully divulges to any but the person for whom it was intended, the contents of a telegraphic message or dispatch intrusted to him for transmission or delivery, or the nature thereof, or willfully refuse or neglect duly to transmit or deliver the same, he shall be guilty of a Class 2 misdemeanor.

History. 1889, c. 41, s. 1; Rev., s. 3846; C.S., s. 4498; 1993, c. 539, s. 249; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-372. Unauthorized opening, reading or publishing of sealed letters and telegrams.

If any person shall willfully, and without authority, open or read, or cause to be opened or read, a sealed letter or telegram, or shall publish the whole or any portion of such letter or telegram, knowing it to have been opened or read without authority, he shall be guilty of a Class 2 misdemeanor.

History. 1889, c. 41, s. 2; Rev., s. 3728; C.S., s. 4499; 1993, c. 539, s. 250; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to unauthorized connections with telephone or telegraph, see G.S. 14-155 .

CASE NOTES

Indictment. —

It is necessary to charge, in an indictment for a violation of this section, and to prove upon the trial, that the letter or telegram was “sealed,” or that it was published with knowledge that it had been opened and read without authority. State v. Bagwell, 107 N.C. 859 , 12 S.E. 254, 1890 N.C. LEXIS 160 (1890).

Article 51. Protection of Athletic Contests.

§ 14-373. Bribery of players, managers, coaches, referees, umpires or officials.

If any person shall bribe or offer to bribe or shall aid, advise, or abet in any way another in such bribe or offer to bribe, any player or participant in any athletic contest with intent to influence his play, action, or conduct and for the purpose of inducing the player or participant to lose or try to lose or cause to be lost any athletic contest or to limit or try to limit the margin of victory or defeat in such contest; or if any person shall bribe or offer to bribe or shall aid, advise, or abet in any way another in such bribe or offer to bribe, any referee, umpire, manager, coach, or any other official or an athletic club or team, league, association, institution or conference, by whatever name called connected with said athletic contest with intent to influence his decision or bias his opinion or judgment for the purpose of losing or trying to lose or causing to be lost said athletic contest or of limiting or trying to limit the margin of victory or defeat in such contest, such person shall be punished as a Class I felon.

History. 1921, c. 23, s. 1; C.S., s. 4499(a); 1951, c. 364, s. 1; 1961, c. 1054, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1238; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

An essential element of the offense is bribery or offer to bribe with intent to influence the play, action or conduct of a player in any athletic contest. State v. Goldberg, 261 N.C. 181 , 134 S.E.2d 334, 1964 N.C. LEXIS 447 , cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747, 1964 U.S. LEXIS 1027 (1964).

It is necessary for the State to prove specific intent to influence the play, action or conduct of a player in any athletic contest. State v. Goldberg, 261 N.C. 181 , 134 S.E.2d 334, 1964 N.C. LEXIS 447 , cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747, 1964 U.S. LEXIS 1027 (1964).

Competency of Evidence. —

Testimony admitted over objections and exceptions as to the bribery of a number of basketball players in other states and rigging of basketball games in other states, was held competent as proof of intent to influence the play, action or conduct of a player in an athletic contest in State v. Goldberg, 261 N.C. 181 , 134 S.E.2d 334, 1964 N.C. LEXIS 447 , cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747, 1964 U.S. LEXIS 1027 (1964).

§ 14-374. Acceptance of bribes by players, managers, coaches, referees, umpires or officials.

If any player or participant in any athletic contest shall accept, or agree to accept, a bribe given for the purpose of inducing the player or participant to lose or try to lose or cause to be lost or limit or try to limit the margin of victory or defeat in such contest; or if any referee, umpire, manager, coach, or any other official of an athletic club, team, league, association, institution, or conference connected with an athletic contest shall accept or agree to accept a bribe given with the intent to influence his decision or bias his opinion or judgment and for the purpose of losing or trying to lose or causing to be lost said athletic contest or of limiting or trying to limit the margin of victory or defeat in such contest, such person shall be punished as a Class I felon.

History. 1921, c. 23, s. 2; C.S., s. 4499(b); 1951, c. 364, s. 2; 1961, c. 1054, s. 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1239; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-375. Completion of offenses set out in §§ 14-373 and 14-374.

To complete the offenses mentioned in G.S. 14-373 and 14-374, it shall not be necessary that the player, manager, coach, referee, umpire, or official shall, at the time, have been actually employed, selected, or appointed to perform his respective duties; it shall be sufficient if the bribe be offered, accepted, or agreed to with the view of probable employment, selection, or appointment of the person to whom the bribe is offered or by whom it is accepted. It shall not be necessary that such player, referee, umpire, manager, coach, or other official actually play or participate in any athletic contest, concerning which said bribe is offered or accepted; it shall be sufficient if the bribe be given, offered, or accepted in view of his or their possibly participating therein.

History. 1921, c. 23, s. 3; C.S., s. 4499(c); 1951, c. 364, s. 3; 1961, c. 1054, s. 3.

§ 14-376. Bribe defined.

By a “bribe,” as used in this article, is meant any gift, emolument, money or thing of value, testimonial, privilege, appointment or personal advantage, or in the promise of either, bestowed or promised for the purpose of influencing, directly or indirectly, any player, referee, manager, coach, umpire, club or league official, to see which game an admission fee may be charged, or in which athletic contest any player, manager, coach, umpire, referee, or other official is paid any compensation for his services. Said bribe as defined in this article need not be direct; it may be such as is hidden under the semblance of a sale, bet, wager, payment of a debt, or in any other manner defined to cover the true intention of the parties.

History. 1921, c. 23, s. 4; C.S., s. 4499(d); 1951, c. 364, s. 4; 1961, c. 1054, s. 4.

§ 14-377. Intentional losing of athletic contest or limiting margin of victory or defeat.

If any player or participant shall commit any willful act of omission or commission, in playing of an athletic contest, with intent to lose or try to lose or to cause to be lost or to limit or try to limit the margin of victory or defeat in such contest for the purpose of material gain to himself, or if any referees, umpire, manager, coach, or other official of an athletic club, team, league, association, institution or conference connected with an athletic contest shall commit any willful act of omission or commission connected with his official duties with intent to try to lose or to cause to be lost or to limit or try to limit the margin of victory or defeat in such contest for the purpose of material gain to himself, such person shall be punished as a Class I felon.

History. 1921, c. 23, s. 5; C.S., s. 4499(e); 1951, c. 364, s. 5; 1961, c. 1054, s. 5; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1240; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

§ 14-378. Venue.

In all prosecutions under this Article, the venue may be laid in any county where the bribe herein referred to was given, offered, or accepted, or in which the athletic contest was carried on in relation to which the bribe was offered, given, or accepted, or the acts referred to in G.S. 14-377 were committed.

History. 1921, c. 23, s. 6; C.S., s. 4606(c); 1951, c. 364, s. 6.

§ 14-379. Bonus or extra compensation not forbidden.

Nothing in this Article shall be construed to prohibit the giving or offering of any bonus or extra compensation to any manager, coach, or professional player, or to any league, association, or conference for the purpose of encouraging such manager, coach, or player to a higher degree of skill, ability, or diligence in the performance of his duties.

History. 1921, c. 23, s. 7; C.S., s. 4499(f); 1951, c. 364, s. 7; 1961, c. 1054, s. 6.

§ 14-380. [Repealed]

Repealed by Session Laws 1951, c. 364, s. 8.

Article 51A. Protection of Horse Shows.

§ 14-380.1. Bribery of horse show judges or officials.

Any person who bribes, or offers to bribe, any judge or other official in any horse show, with intent to influence his decision or judgment concerning said horse show, shall be guilty of a Class 2 misdemeanor.

History. 1963, c. 1100, s. 1; 1969, c. 1224, s. 1; 1993, c. 539, s. 251; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-380.2. Bribery attempts to be reported.

Any judge or other official of any horse show shall report to the resident superior court district attorney any attempt to bribe him with respect to his decisions in any horse show, and a failure to so report shall constitute a Class 2 misdemeanor.

History. 1963, c. 1100, s. 2; 1969, c. 1224, s. 1; 1973, c. 47, s. 2; 1993, c. 539, s. 252; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-380.3. Bribe defined.

The word “bribe,” as used in this Article, shall have the same meaning as set forth in G.S. 14-376 , in relation to athletic contests.

History. 1963, c. 1100, s. 3.

§ 14-380.4. Printing Article in horse show schedules.

The provisions of this Article shall be printed on all schedules for any horse show held prior to January 1, 1965.

History. 1963, c. 1100, s. 4.

Article 52. Miscellaneous Police Regulations.

§ 14-381. Desecration of State and United States flag.

It shall be unlawful for any person willfully and knowingly to cast contempt upon any flag of the United States or upon any flag of North Carolina by public acts of physical contact including, but not limited to, mutilation, defiling, defacing or trampling. Any person violating this section shall be deemed guilty of a Class 2 misdemeanor.

The flag of the United States, as used in this section, shall be the same as defined in 4 U.S.C.A. 1 and 4 U.S.C.A. 2. The flag of North Carolina, as used in this section, shall be the same as defined in G.S. 144-1 .

History. 1917, c. 271; C.S., s. 4500; 1971, c. 295; 1993, c. 539, s. 253; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to state salute to the North Carolina flag, G.S. 144-8 .

CASE NOTES

Former Provisions Held Unconstitutional. —

See Parker v. Morgan, 322 F. Supp. 585, 1971 U.S. Dist. LEXIS 14938 (W.D.N.C. 1971).

§ 14-382. Pollution of water on lands used for dairy purposes.

It shall be unlawful for any person, firm, or corporation owning lands adjoining the lands of any person, firm, or corporation which are or may be used for dairy purposes or for grazing milk cows, to dispose of or permit disposal of any animal, mineral, chemical, or vegetable refuse, sewage or other deleterious matter in such way as to pollute the water on the lands so used or which may be used for dairy purposes or for grazing milk cows, or to render unfit or unsafe for use the milk produced from cows feeding upon the grasses and herbage growing on such lands. This section shall not apply to incorporated towns maintaining a sewer system. Anyone violating the provisions of this section shall be guilty of a Class 3 misdemeanor, and each day that such pollution is committed or exists shall constitute a separate offense.

History. 1919, c. 222; C.S., s. 4501; 1993, c. 539, s. 254; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-383. Cutting timber on town watershed without disposing of boughs and debris; misdemeanor.

Any person, firm or corporation owning lands or the standing timber on lands within 400 feet of any watershed held or owned by any city or town, for the purpose of furnishing a city or town water supply, upon cutting or removing the timber or permitting the same cut or removed from lands so within 400 feet of said watershed, or any part thereof, shall, within three months after cutting, or earlier upon written notice by said city or town, remove or cause to be burned under proper supervision all treetops, boughs, laps and other portions of timber not desired to be taken for commercial or other purposes, within 400 feet of the boundary line of such part of such watershed as is held or owned by such town or city, so as to leave such space of 400 feet immediately adjoining the boundary line of such watershed, so held or owned, free and clear of all such treetops, laps, boughs and other inflammable material caused by or left from cutting such standing timber, so as to prevent the spread of fire from such cutover area and the consequent damage to such watershed. Any such person, firm or corporation violating the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1913, c. 56; C.S., s. 4502; 1969, c. 1224, s. 1; 1993, c. 539, s. 255; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Constitutionality. —

This section constitutes a valid exercise of the police power and is constitutional. State v. Perley, 173 N.C. 783 , 92 S.E. 504, 1917 N.C. LEXIS 416 (1917), aff'd, 249 U.S. 510, 39 S. Ct. 357, 63 L. Ed. 735, 1919 U.S. LEXIS 2067 (1919).

The motive is immaterial, and where the intent to violate the section is shown the defendant is punishable. State v. Perley, 173 N.C. 783 , 92 S.E. 504, 1917 N.C. LEXIS 416 (1917), aff'd, 249 U.S. 510, 39 S. Ct. 357, 63 L. Ed. 735, 1919 U.S. LEXIS 2067 (1919).

§ 14-384. Injuring notices and advertisements.

If any person shall wantonly or maliciously mutilate, deface, pull or tear down, destroy or otherwise damage any notice, sign or advertisement, unless immoral or obscene, whether put up by an officer of the law in performance of the duties of his office or by some other person for a lawful purpose, before the object for which such notice, sign or advertisement was posted shall have been accomplished, he shall be guilty of a Class 3 misdemeanor. Nothing herein contained shall apply to any person mutilating, defacing, pulling or tearing down, destroying or otherwise damaging notices, signs or advertisements put upon his own land or lands of which he may have charge or control, unless consent of such person to put up such notice, sign or advertisement shall have first been obtained, except those put up by an officer of the law in the performance of the duties of his office.

History. 1885, c. 302; Rev., s. 3709; C.S., s. 4503; 1993, c. 539, s. 256; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-385. Defacing or destroying public notices and advertisements.

If any person shall willfully and unlawfully deface, tear down, remove or destroy any legal notice or advertisement authorized by law to be posted by any officer or other person, the same being actually posted at the time of such defacement, tearing down, removal or destruction, during the time for which such legal notice or advertisement shall be authorized by law to be posted, he shall be guilty of a Class 3 misdemeanor.

History. 1876-7, c. 215; Code, s. 981; Rev., s. 3710; C.S., s. 4504; 1993, c. 539, s. 257; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-386. [Repealed]

Repealed by Session Laws 1994, Extra Session, c. 14, s. 72(21).

§ 14-387. [Repealed]

Repealed by Session Laws 1945, c. 635.

§ 14-388. [Repealed]

Repealed by Session Laws 1943, c. 543.

§ 14-389. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(17).

§§ 14-390, 14-390.1. [Repealed]

Repealed by Session Laws 1969, c. 970, s. 11.

§ 14-391. Usurious loans on household and kitchen furniture or assignment of wages.

Any person, firm or corporation who shall lend money in any manner whatsoever by note, chattel mortgage, conditional sale, or purported conditional sale or otherwise, upon any article of household or kitchen furniture, or any assignment of wages, earned or to be earned, and shall willfully:

  1. Take, receive, reserve or charge a greater rate of interest than permitted by law, either before or after the interest may accrue; or
  2. Refuse to give receipts for payments on interest or principal of such loan; or
  3. Fail or refuse to surrender the note and security when the same is paid off or a new note and mortgage is given in renewal, unless such new mortgage shall state the amount still due by the old note or mortgage and that the new one is given as additional security; shall be guilty of a Class 1 misdemeanor and in addition thereto shall be subject to the provisions of G.S. 24-2 .

History. 1907, c. 110; C.S., s. 4509; 1927, c. 72; 1959, c. 195; 1977, c. 807; 1993, c. 539, s. 259; 1994, Ex. Sess., c. 24, s. 14(c).

Cross References.

As to interest in general, see G.S. 24-1 et seq.

Editor’s Note.

Section 3 of c. 1053, Session Laws 1961, which enacted the North Carolina Consumer Finance Act, provided that this section shall not be applicable to persons licensed under the North Carolina Consumer Finance Act, that is, G.S. 53-164 to 53-191. See Editor’s note to G.S. 53-164 .

Legal Periodicals.

For comment on usury law in North Carolina, see 47 N.C.L. Rev. 761 (1969).

CASE NOTES

This section is constitutional. State v. Davis, 157 N.C. 648 , 73 S.E. 130, 1911 N.C. LEXIS 113 (1911).

Interest Need Not Be Received. —

The charge of the usurious interest constitutes the offense without the necessity of having received it. State v. Davis, 157 N.C. 648 , 73 S.E. 130, 1911 N.C. LEXIS 113 (1911).

§§ 14-392, 14-393. [Repealed]

Repealed by Session Laws 1989, c. 508, s. 4.

Cross References.

As to prohibitions relating to digging and buying of ginseng, see G.S. 106-202.19 .

§ 14-394. Anonymous or threatening letters, mailing or transmitting.

It shall be unlawful for any person, firm, or corporation, or any association of persons in this State, under whatever name styled, to write and transmit any letter, note, or writing, whether written, printed, or drawn, without signing his, her, their, or its true name thereto, threatening any person or persons, firm or corporation, or officers thereof with any personal injury or violence or destruction of property of such individuals, firms, or corporations, or using therein any language or threats of any kind or nature calculated to intimidate or place in fear any such persons, firms or corporations, or officers thereof, as to their personal safety or the safety of their property, or using vulgar or obscene language, or using such language which if published would bring such persons into public contempt and disgrace, and any person, firm, or corporation violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

History. 1921, c. 112; C.S., s. 4511(a); 1993, c. 539, s. 260; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For note on intentional infliction of emotional distress, see 18 Wake Forest L. Rev. 624 (1982).

CASE NOTES

Constitutionality. —

Section 14-3(b), making a misdemeanor offense as to which no specific punishment is prescribed a Class H felony under certain circumstances, and this section set up different punishment levels for the same criminal act without discriminating against any class of defendants, and do not violate equal protection. State v. Glidden, 76 N.C. App. 653, 334 S.E.2d 101, 1985 N.C. App. LEXIS 3929 (1985), rev'd, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

Subsection (b) of G.S. 14-3 does not convert a violation of this section into a felony in any case. State v. Glidden, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

The misdemeanor of transmitting an unsigned threatening letter in violation of this section does not fall within any of the classes of misdemeanors made felonious by G.S. 14-3(b) . State v. Glidden, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

Transmission an Essential Element. —

For a conviction under this section, there must be a transmission of the anonymous letter which contains at least one of the categories of prohibited language. Unless and until there is a transmission, no crime has been committed. State v. Robbins, 253 N.C. 47 , 116 S.E.2d 192, 1960 N.C. LEXIS 462 (1960).

What Constitutes Transmission. —

There can be no transmission within the meaning of this section without an intended recipient and a delivery of the prohibited writing or a communication of its contents to the intended recipient. State v. Robbins, 253 N.C. 47 , 116 S.E.2d 192, 1960 N.C. LEXIS 462 (1960).

Evidence Held Sufficient to Show Transmission. —

Evidence that the recipient of threatening letters was familiar enough with the defendant’s handwriting to identify him as the author of the threatening letters, that some of the letters appeared in victim’s classroom during or immediately following the time period when defendant attended class there, that some of the envelopes were folded, indicating that they could have been mailed to an accomplice who then mailed them from the postmarked location while defendant was in another location, and that no more letters were mailed to the victim after defendant was arrested was sufficient for the jury to find that defendant transmitted the letters as well as wrote them. State v. Glidden, 76 N.C. App. 653, 334 S.E.2d 101, 1985 N.C. App. LEXIS 3929 (1985), rev'd, 317 N.C. 557 , 346 S.E.2d 470, 1986 N.C. LEXIS 2415 (1986).

Circumstantial evidence of defendant’s guilt of transmitting a threatening letter held sufficient to sustain conviction and overrule defendant’s motion for judgment as of nonsuit. State v. Strickland, 229 N.C. 201 , 49 S.E.2d 469, 1948 N.C. LEXIS 466 (1948).

§ 14-395. Commercialization of American Legion emblem; wearing by nonmembers.

It shall be unlawful for anyone not a member of the American Legion, an organization consisting of ex-members of the United States Army, Navy and Marine Corps, who served as members of such organizations in the recent world war, to wear upon his or her person the recognized emblem of the American Legion, or to use the said emblem for advertising purposes, or to commercialize the same in any way whatsoever; or to use the said emblem in display upon his or her property or place of business, or at any place whatsoever. Anyone violating the provisions of this section shall be guilty of a Class 3 misdemeanor.

History. 1923, c. 89; C.S., s. 4511(b); 1993, c. 539, s. 261; 1994, Ex. Sess., c. 24, s. 14(c); 2011-183, s. 127(b).

Effect of Amendments.

Session Laws 2011-183, s. 127(b), effective June 20, 2011, substituted “Army, Navy and Marine Corps” for “army, navy and marine corps.”

§ 14-395.1. Sexual harassment.

  1. Offense. —  Any lessor of residential real property or the agent of any lessor of residential real property who shall harass on the basis of sex any lessee or prospective lessee of the property shall be guilty of a Class 2 misdemeanor.
  2. Definitions. —  For purposes of this section:
    1. “Harass on the basis of sex” means unsolicited overt requests or demands for sexual acts when (i) submission to such conduct is made a term of the execution or continuation of the lease agreement, or (ii) submission to or rejection of such conduct by an individual is used to determine whether rights under the lease are accorded;
    2. “Lessee” means a person who enters into a residential rental agreement with the lessor and all other persons residing in the lessee’s rental unit; and
    3. “Prospective lessee” means a person seeking to enter into a residential rental agreement with a lessor.

History. 1989, c. 712, s. 1; 1993, c. 539, s. 262; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article, “Interfering Desire,” see 63 Duke L. J. 525 (2013).

For article, “2019 Currie-Kenan Distinguished Lecture: #Metoo: Why Now? What Next?,” see 69 Duke L.J. 377 (2019).

CASE NOTES

Actionable Sexual Harassment. —

Given the provisions of G.S. 143-422.2 , 115C-335.5, 115C-325 and 14-395.1, there was no question that the right to be free of sexual harassment in the workplace was implicated in declaration of North Carolina’s public policy. Whitt v. Harris Teeter, Inc., 165 N.C. App. 32, 598 S.E.2d 151, 2004 N.C. App. LEXIS 1160 (2004), rev'd, 359 N.C. 625 , 614 S.E.2d 531, 2005 N.C. LEXIS 638 (2005).

§§ 14-396, 14-397. [Repealed]

Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 30(18), (19).

§ 14-398. Theft or destruction of property of public libraries, museums, etc.

Any person who shall steal or unlawfully take or detain, or willfully or maliciously or wantonly write upon, cut, tear, deface, disfigure, soil, obliterate, break or destroy, or who shall sell or buy or receive, knowing the same to have been stolen, any book, document, newspaper, periodical, map, chart, picture, portrait, engraving, statue, coin, medal, apparatus, specimen, or other work of literature or object of art or curiosity deposited in a public library, gallery, museum, collection, fair or exhibition, or in any department or office of State or local government, or in a library, gallery, museum, collection, or exhibition, belonging to any incorporated college or university, or any incorporated institution devoted to educational, scientific, literary, artistic, historical or charitable purposes, shall, if the value of the property stolen, detained, sold, bought or received knowing same to have been stolen, or if the damage done by writing upon, cutting, tearing, defacing, disfiguring, soiling, obliterating, breaking or destroying any such property, shall not exceed fifty dollars ($50.00), be guilty of a Class 1 misdemeanor. If the value of the property stolen, detained, sold or received knowing same to have been stolen, or the amount of damage done in any of the ways or manners hereinabove set out, shall exceed the sum of fifty dollars ($50.00), the person committing same shall be punished as a Class H felon.

History. 1935, c. 300; 1943, c. 543; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 265; 1994, Ex. Sess., c. 24, s. 14(c).

Local Modification.

Dare: 1983, c. 349.

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

CASE NOTES

Intent. —

This section requires, as an essential element of the offenses set forth, a showing that the person charged “willfully” or “wantonly” caused the damage. State v. Davis, 86 N.C. App. 25, 356 S.E.2d 607, 1987 N.C. App. LEXIS 2667 (1987).

Evidence Held Insufficient. —

Evidence was not sufficient to support conviction under this section for water damage to a museum tapestry which was lying on the floor rolled up in a storage room located directly under rest room with malfunctioning toilet which defendant had clogged with paper towels, as there was insufficient evidence as to the condition of the tapestry prior to the resultant flooding. State v. Davis, 86 N.C. App. 25, 356 S.E.2d 607, 1987 N.C. App. LEXIS 2667 (1987).

§ 14-399. Littering.

  1. No person, including any firm, organization, private corporation, or governing body, agents or employees of any municipal corporation shall intentionally or recklessly throw, scatter, spill or place or intentionally or recklessly cause to be blown, scattered, spilled, thrown or placed or otherwise dispose of any litter upon any public property or private property not owned by the person within this State or in the waters of this State including any public highway, public park, lake, river, ocean, beach, campground, forestland, recreational area, trailer park, highway, road, street or alley except:
    1. When the property is designated by the State or political subdivision thereof for the disposal of garbage and refuse, and the person is authorized to use the property for this purpose; or
    2. Into a litter receptacle in a manner that the litter will be prevented from being carried away or deposited by the elements upon any part of the private or public property or waters.

      (a1) No person, including any firm, organization, private corporation, or governing body, agents, or employees of any municipal corporation shall scatter, spill, or place or cause to be blown, scattered, spilled, or placed or otherwise dispose of any litter upon any public property or private property not owned by the person within this State or in the waters of this State including any public highway, public park, lake, river, ocean, beach, campground, forestland, recreational area, trailer park, highway, road, street, or alley except:

      (1) When the property is designated by the State or political subdivision thereof for the disposal of garbage and refuse, and the person is authorized to use the property for this purpose; or

      (2) Into a litter receptacle in a manner that the litter will be prevented from being carried away or deposited by the elements upon any part of the private or public property or waters.

      (a2) Subsection (a1) of this section does not apply to the accidental blowing, scattering, or spilling of an insignificant amount of municipal solid waste, as defined in G.S. 130A-290(18a), during the automated loading of a vehicle designed and constructed to transport municipal solid waste if the vehicle is operated in a reasonable manner and according to manufacturer specifications.

  2. When litter is blown, scattered, spilled, thrown or placed from a vehicle or watercraft, the operator thereof shall be presumed to have committed the offense. This presumption, however, does not apply to a vehicle transporting nontoxic and biodegradable agricultural or garden products or supplies, including mulch, tree bark, wood chips, and raw logs.
  3. Any person who violates subsection (a) of this section in an amount not exceeding 15 pounds and not for commercial purposes is guilty of a Class 3 misdemeanor punishable by a fine of not less than two hundred fifty dollars ($250.00) nor more than one thousand dollars ($1,000) for the first offense. In addition, the court may require the violator to perform community service of not less than eight hours nor more than 24 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed. Any second or subsequent violation of subsection (a) of this section in an amount not exceeding 15 pounds and not for commercial purposes within three years after the date of a prior violation is a Class 3 misdemeanor punishable by a fine of not less than five hundred dollars ($500.00) nor more than two thousand dollars ($2,000). In addition, the court may require the violator to perform community service of not less than 16 hours nor more than 50 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed.

    (c1) Any person who violates subsection (a1) of this section in an amount not exceeding 15 pounds is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100.00). In addition, the court may require the violator to perform community service of not less than four hours nor more than 12 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed. Any second or subsequent violation of subsection (a1) of this section in an amount not exceeding 15 pounds within three years after the date of a prior violation is an infraction punishable by a fine of not more than two hundred dollars ($200.00). In addition, the court may require the violator to perform community service of not less than eight hours nor more than 24 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed. For purposes of this subsection, the term “litter” shall not include nontoxic and biodegradable agricultural or garden products or supplies, including mulch, tree bark, and wood chips.

  4. Any person who violates subsection (a) of this section in an amount exceeding 15 pounds but not exceeding 500 pounds and not for commercial purposes is guilty of a Class 3 misdemeanor punishable by a fine of not less than five hundred dollars ($500.00) nor more than two thousand dollars ($2,000). In addition, the court shall require the violator to perform community service of not less than 24 hours nor more than 100 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other community service commensurate with the offense committed.

    (d1) Any person who violates subsection (a1) of this section in an amount exceeding 15 pounds but not exceeding 500 pounds is guilty of an infraction punishable by a fine of not more than two hundred dollars ($200.00). In addition, the court may require the violator to perform community service of not less than eight hours nor more than 24 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed.

  5. Any person who violates subsection (a) of this section in an amount exceeding 500 pounds or in any quantity for commercial purposes, or who discards litter that is a hazardous waste as defined in G.S. 130A-290 is guilty of a Class I felony. (e1) Any person who violates subsection (a1) of this section in an amount exceeding 500 pounds is guilty of an infraction punishable by a fine of not more than three hundred dollars ($300.00). In addition, the court may require the violator to perform community service of not less than 16 hours nor more than 50 hours. The community service required shall be to pick up litter if feasible, and if not feasible, to perform other labor commensurate with the offense committed.

    (e2) If any person violates subsection (a) or (a1) of this section in an amount exceeding 15 pounds or in any quantity for commercial purposes, or discards litter that is a hazardous waste as defined in G.S. 130A-290 , the court shall order the violator to:

    1. Remove, or render harmless, the litter that he discarded in violation of this section;
    2. Repair or restore property damaged by, or pay damages for any damage arising out of, his discarding litter in violation of this section; or
    3. Perform community public service relating to the removal of litter discarded in violation of this section or to the restoration of an area polluted by litter discarded in violation of this section.
  6. A court may enjoin a violation of this section. (f1) If a violation of subsection (a) of this section involves the operation of a motor vehicle, upon a finding of guilt, the court shall forward a record of the finding to the Department of Transportation, Division of Motor Vehicles, which shall record a penalty of one point on the violator’s drivers license pursuant to the point system established by G.S. 20-16 . There shall be no insurance premium surcharge or assessment of points under the classification plan adopted under G.S. 58-36-65 for a finding of guilt under this section.
  7. A motor vehicle, vessel, aircraft, container, crane, winch, or machine involved in the disposal of more than 500 pounds of litter in violation of subsection (a) of this section is declared contraband and is subject to seizure and summary forfeiture to the State.
  8. If a person sustains damages arising out of a violation of subsection (a) of this section that is punishable as a felony, a court, in a civil action for the damages, shall order the person to pay the injured party threefold the actual damages or two hundred dollars ($200.00), whichever amount is greater. In addition, the court shall order the person to pay the injured party’s court costs and attorney’s fees.
  9. For the purpose of the section, unless the context requires otherwise:
    1. “Aircraft” means a motor vehicle or other vehicle that is used or designed to fly, but does not include a parachute or any other device used primarily as safety equipment.
    2. Repealed by Session Laws 1999-454, s. 1. (2a) “Commercial purposes” means litter discarded by a business, corporation, association, partnership, sole proprietorship, or any other entity conducting business for economic gain, or by an employee or agent of the entity.
    3. “Law enforcement officer” means any law enforcement officer sworn and certified pursuant to Article 1 of Chapter 17C or 17E of the General Statutes, except company police officers as defined in G.S. 74E-6(b)(3). In addition, and solely for the purposes of this section, “law enforcement officer” means any employee of a county or municipality designated by the county or municipality as a litter enforcement officer.
    4. “Litter” means any garbage, rubbish, trash, refuse, can, bottle, box, container, wrapper, paper, paper product, tire, appliance, mechanical equipment or part, building or construction material, tool, machinery, wood, motor vehicle or motor vehicle part, vessel, aircraft, farm machinery or equipment, sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility, dead animal, or discarded material in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations. While being used for or distributed in accordance with their intended uses, “litter” does not include political pamphlets, handbills, religious tracts, newspapers, and other similar printed materials the unsolicited distribution of which is protected by the Constitution of the United States or the Constitution of North Carolina.
    5. “Vehicle” has the same meaning as in G.S. 20-4.01(49) .
    6. “Watercraft” means any boat or vessel used for transportation across the water.
  10. It shall be the duty of all law enforcement officers to enforce the provisions of this section.
  11. This section does not limit the authority of any State or local agency to enforce other laws, rules or ordinances relating to litter or solid waste management.

History. 1935, c. 457; 1937, c. 446; 1943, c. 543; 1951, c. 975, s. 1; 1953, cc. 387, 1011; 1955, c. 437; 1957, cc. 73, 175; 1959, c. 1173; 1971, c. 165; 1973, c. 877; 1977, c. 887, s. 1; 1979, c. 1065, s. 1; 1983, c. 890; 1987, cc. 208, 757; 1989, c. 784, ss. 7.1, 8; 1991, c. 609, s. 1; c. 720, s. 49; c. 725, s. 1; 1993, c. 539, ss. 266, 267, 1241; 1994, Ex. Sess., c. 24, s. 14(c); 1997-518, s. 1; 1998-217, s. 2; 1999-294, s. 4; 1999-454, s. 1; 2001-512, s. 1.

Local Modification.

Avery, Burke, Caldwell: 1981 (Reg. Sess., 1982), c. 1155; McDowell: 1987, c. 52; Mecklenburg: 1981, c. 373; Mitchell: 1981 (Reg. Sess., 1982), c. 1155; Rutherford: 1983 (Reg. Sess., 1984), c. 977; Wilkes: 1981 (Reg. Sess., 1982), c. 1155.

Editor’s Note.

Session Laws 1999-454, s. 2 directs the Commissioner of Motor Vehicles to include at least one question relating to littering on the next drivers license examination prepared by the Division of Motor Vehicles.

Session Laws 2001-512, s. 15, provides: “This act shall not be construed to obligate the General Assembly to appropriate any funds to implement the provisions of this act. Every agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated or available to the agency.”

“Article 1 of Chapter 17C” has been substituted for “Chapter 17C” in this section at the direction of the Revisor of Statutes.

Legal Periodicals.

For comment discussing aesthetics-based municipal regulation in light of State v. Jones, 305 N.C. 520 , 290 S.E.2d 675 (1982), see 18 Wake Forest L. Rev. 1167 (1982).

CASE NOTES

Property Designated for Disposal of Garbage and Refuse. —

Trial court erred in convicting defendant of felony littering of hazardous waste because, while she drained the contents of a metal tank that she planned to sell for scrap metal onto the ground, her indictment failed to contain an essential element of the crime for which she was charged: that defendant disposed of or discarded trash in any place other than on property designated by the city or state for the disposal of garbage and refuse as provided for in subsection (a)(1) of the statute at issue. State v. Rankin, 257 N.C. App. 354, 809 S.E.2d 358, 2018 N.C. App. LEXIS 24 , aff'd, 371 N.C. 885 , 821 S.E.2d 787, 2018 N.C. LEXIS 1139 (2018).

Trial court properly denied a car wash owner’s complaint against a customer for littering because the customer’s entry onto the owner’s property was authorized, the car wash drain into which the customer cleaned out the contents of a 1000 gallon off-road diesel holding tank was “a litter receptacle” of some sort under the applicable statute. ABC Servs., LLC v. Wheatly Boys, LLC, 259 N.C. App. 425, 817 S.E.2d 397, 2018 N.C. App. LEXIS 478 (2018).

As to validity of regulation based on aesthetic considerations, see State v. Jones, 305 N.C. 520 , 290 S.E.2d 675, 1982 N.C. LEXIS 1332 (1982).

Private dumpster is a “litter receptacle” within the meaning of G.S. 14-399(a). State v. Hinkle, 189 N.C. App. 762, 659 S.E.2d 34, 2008 N.C. App. LEXIS 705 (2008).

Trial court erred by denying defendants’ motion to dismiss littering charges under G.S. 14-399(a) because the State failed to present substantial evidence that a dumpster behind a grocery store, into which defendants deposited plastic bags containing dead animals, was not a litter receptacle. The word “receptacle” in the statute included a broad range of containment vessels. State v. Hinkle, 189 N.C. App. 762, 659 S.E.2d 34, 2008 N.C. App. LEXIS 705 (2008).

Indictment Invalid. —

Defendant’s conviction for felony littering of hazardous waste was properly vacated because the indictment failed to allege each element of the crime, thereby depriving defendant of sufficient notice, and thus, the indictment was facially invalid and the trial court had no jurisdiction to enter a conviction on the charge. against defendant. State v. Rankin, 371 N.C. 885 , 821 S.E.2d 787, 2018 N.C. LEXIS 1139 (2018).

§ 14-399.1. [Repealed]

Repealed by Session Laws 1989, c. 784, s. 7.

§ 14-399.2. Certain plastic yoke and ring type holding devices prohibited.

  1. As used in this section:
    1. “Degradable” means that within one year after being discarded, the yoke or ring type holding device is capable of becoming embrittled or decomposing by photodegradation, biodegradation, or chemo-degradation under average seasonal conditions into components other than heavy metals or other toxic substances.
    2. “Recyclable” means that the yoke or ring type holding device is capable of being collected and processed for reuse as a product or raw material.
  2. No person may sell or distribute for sale in this State any container connected to another by a yoke or ring type holding device constructed of plastic that is neither degradable nor recyclable. No person may sell or distribute for sale in this State any container connected to another by a yoke or ring type holding device constructed of plastic that is recyclable but that is not degradable unless such device does not have an orifice larger than one and three-fourths inches. The manufacturer of a degradable yoke or ring type holding device shall emboss or mark the device with a nationally recognized symbol indicating that the device is degradable. The manufacturer of a recyclable yoke or ring type holding device shall emboss or mark the device with a symbol of the type specified in G.S. 130A-309.10(e) indicating the plastic resin used to produce the device and that the device is recyclable. The manufacturer shall register the symbol with the Secretary of State with a sample of the device.
  3. Any person who sells or distributes for sale a yoke or ring type holding device in violation of this section shall be guilty of a Class 3 misdemeanor punishable by a fine of not less than fifty dollars ($50.00) nor more than two hundred dollars ($200.00). In lieu of a fine or any portion thereof or in addition to a fine, any violation of this section may also be punished by a term of community service.
  4. Other than a manufacturer required to use and register a symbol under subsection (b), a person may not be prosecuted under this section if, at the time of sale or distribution for sale, the yoke or holding device bears a symbol meeting the requirements of this section which has been registered with the Secretary of State.

History. 1989, c. 371, s. 1; 1991, c. 236, s. 1; c. 621, s. 14; 1993, c. 539, s. 268; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-400. Tattooing; body piercing prohibited.

  1. It shall be unlawful for any person or persons to tattoo the arm, limb, or any part of the body of any other person under 18 years of age. Anyone violating the provisions of this section shall be guilty of a Class 2 misdemeanor.
  2. It shall be unlawful for any person to pierce any part of the body other than ears of another person under the age of 18 for the purpose of allowing the insertion of earrings, jewelry, or similar objects into the body, unless the prior consent of a custodial parent or guardian is obtained. Anyone violating the provisions of this section is guilty of a Class 2 misdemeanor.

History. 1937, c. 112, ss. 1, 2; 1969, c. 1224, s. 8; 1971, c. 1231, s. 1; 1993, c. 539, s. 269; 1994, Ex. Sess., c. 24, s. 14(c); 1998-230, s. 9.

Legal Periodicals.

For comment, “Barbie Can Get a Tattoo, Why Can’t I? First Amendment Protection of Tattooing in a Barbie World,” see 46 Wake Forest L. Rev. 331 (2011).

§ 14-401. Putting poisonous foodstuffs, antifreeze, etc., in certain public places, prohibited.

It shall be unlawful for any person, firm or corporation to put or place (i) any strychnine, other poisonous compounds or ground glass on any beef or other foodstuffs of any kind, or (ii) any antifreeze that contains ethylene glycol and is not in a closed container, in any public square, street, lane, alley or on any lot in any village, town or city or on any public road, open field, woods or yard in the country. Any person, firm or corporation who violates the provisions of this section shall be liable in damages to the person injured thereby and also shall be guilty of a Class 1 misdemeanor. This section shall not apply to the poisoning of insects or worms for the purpose of protecting crops or gardens by spraying plants, crops, or trees, to poisons used in rat extermination, or to the accidental release of antifreeze containing ethylene glycol.

History. 1941, c. 181; 1953, c. 1239; 1993, c. 143, s. 1; c. 539, s. 270; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For comment on this section, see 19 N.C.L. Rev. 479 (1941).

For survey of 1980 criminal law, see 59 N.C.L. Rev. 1123 (1981).

CASE NOTES

Constitutionality. —

This section is not unconstitutionally vague since the General Assembly intended to prohibit putting poison outside virtually everywhere where an innocent child or animal could find it. State v. Trimble, 44 N.C. App. 659, 262 S.E.2d 299, 1980 N.C. App. LEXIS 2544 (1980).

Burden with Respect to Pest Control Exception. —

The insect control and rat extermination exception in this section is neither an element of the crime nor an affirmative defense thereto, but is instead a “hybrid” factor in determining criminal liability. The State has no initial burden of producing evidence to show that defendant’s actions do not fall within the exception; however, once the defendant, in a nonfrivolous manner, puts forth evidence to show that his conduct is within this exception, the burden of persuading the trier of fact that the exception does not apply falls upon the State. In sum, the exception is not a sufficiently independent, distinct substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself, to put all the onus of proof on the defendant. State v. Trimble, 44 N.C. App. 659, 262 S.E.2d 299, 1980 N.C. App. LEXIS 2544 (1980).

Requirements of Indictment or Warrant. —

An indictment or warrant for an arrest under this section need not set forth a charge that defendant’s conduct is not within the insect control and rat extermination exception to the statute. State v. Trimble, 44 N.C. App. 659, 262 S.E.2d 299, 1980 N.C. App. LEXIS 2544 (1980).

Concrete patio held within definition of section. See State v. Trimble, 44 N.C. App. 659, 262 S.E.2d 299, 1980 N.C. App. LEXIS 2544 (1980).

Rat Poisons Used for Other Purposes. —

While parathion is a poison used in rat extermination, if it is put out for purposes other than rat extermination it comes within the scope of the statutory prohibition. State v. Trimble, 44 N.C. App. 659, 262 S.E.2d 299, 1980 N.C. App. LEXIS 2544 (1980).

§ 14-401.1. Misdemeanor to tamper with examination questions.

Any person who, without authority of the entity who prepares or administers the examination, purloins, steals, buys, receives, or sells, gives or offers to buy, give, or sell any examination questions or copies thereof of any examination provided and prepared by law shall be guilty of a Class 2 misdemeanor.

History. 1917, c. 146, s. 10; C.S., s. 5658; 1969, c. 1224, s. 3; 1991, c. 360, s. 2; 1993, c. 539, s. 271; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Section Limited to Examinations “Provided and Prepared by Law”. —

The portion of this section reading “any examination provided and prepared by law” expressly limits the application of the statute to examinations “provided and prepared by law,” i.e., examinations given by the State Board of Medical Examiners, the State Board of Law Examiners, and other examining boards of this class. The statute has no application to college examination papers. State v. Andrews, 246 N.C. 561 , 99 S.E.2d 745, 1957 N.C. LEXIS 482 (1957).

§ 14-401.2. Misdemeanor for detective to collect claims, accounts, etc.

It shall be unlawful for any person, firm, or corporation, who or which is engaged in business as a detective, detective agency, or what is ordinarily known as “secret service work,” or conducts such business, to engage in the business of collecting claims, accounts, bills, notes, or other money obligations for others, or to engage in the business known as a collection agency. Violation of the provisions hereof shall be a Class 2 misdemeanor.

History. 1943, c. 383; 1969, c. 1224, s. 5; 1993, c. 539, s. 272; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-401.3. Inscription on gravestone or monument charging commission of crime.

It shall be illegal for any person to erect or cause to be erected any gravestone or monument bearing any inscription charging any person with the commission of a crime, and it shall be illegal for any person owning, controlling or operating any cemetery to permit such gravestone to be erected and maintained therein. If such gravestone has been erected in any graveyard, cemetery or burial plot, it shall be the duty of the person having charge thereof to remove and obliterate such inscription. Any person violating the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1949, c. 1075; 1969, c. 1224, s. 8; 1993, c. 539, s. 273; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-401.4. (Effective until December 1, 2021) Identifying marks on machines and apparatus; application to Division of Motor Vehicles for numbers.

  1. No person, firm or corporation shall willfully remove, deface, destroy, alter or cover over the manufacturer’s serial or engine number or any other manufacturer’s number or other distinguishing number or identification mark upon any machine or other apparatus, including but not limited to farm equipment, machinery and apparatus, but excluding electric storage batteries, nor shall any person, firm or corporation place or stamp any serial, engine, or other number or mark upon such machinery, apparatus or equipment except as provided for in this section, nor shall any person, firm or corporation purchase or take into possession or sell, trade, transfer, devise, give away or in any manner dispose of such machinery, apparatus, or equipment except by intestate succession or as junk or scrap after the manufacturer’s serial or engine number or mark has been willfully removed, defaced, destroyed, altered or covered up unless a new number or mark has been added as provided in this section: Provided, however, that this section shall not prohibit or prevent the owner or holder of a mortgage, conditional sales contract, title retaining contract, or a trustee under a deed of trust from taking possession for the purpose of foreclosure under a power of sale or by court order, of such machinery, apparatus, or equipment, or from selling the same by foreclosure sale under a power contained in a mortgage, conditional sales contract, title retaining contract, deed of trust, or court order; or from taking possession thereof in satisfaction of the indebtedness secured by the mortgage, deed of trust, conditional sales contract, or title retaining contract pursuant to an agreement with the owner.
  2. Each seller of farm machinery, farm equipment or farm apparatus covered by this section shall give the purchaser a bill of sale for such machinery, equipment or apparatus and shall include in the bill of sale the manufacturer’s serial number or distinguishing number or identification mark, which the seller warrants to be true and correct according to his invoice or bill of sale as received from his manufacturer, supplier, or distributor or dealer.
  3. Each user of farm machinery, farm equipment or farm apparatus whose manufacturer’s serial number, distinguishing number or identification mark has been obliterated or is now unrecognizable, may obtain a valid identification number for any such machinery, equipment or apparatus upon application for such number to the Division of Motor Vehicles accompanied by satisfactory proof of ownership and a subsequent certification to the Division by a member of the North Carolina Highway Patrol that said applicant has placed the number on the proper machinery, equipment or apparatus. The Division of Motor Vehicles is hereby authorized and empowered to issue appropriate identification marks or distinguishing numbers for machinery, equipment or apparatus upon application as provided in this section and the Division is further authorized and empowered to designate the place or places on the machinery, equipment or apparatus at which the identification marks or distinguishing numbers shall be placed. The Division is also authorized to designate the method to be used in placing the identification marks or distinguishing numbers on the machinery, equipment or apparatus: Provided, however, that the owner or holder of the mortgage conditional sales contract, title retaining contract, or trustee under a deed of trust in possession of such encumbered machinery, equipment, or apparatus from which the manufacturer’s serial or engine number or other manufacturer’s number or distinguishing mark has been obliterated or has become unrecognizable or the purchaser at the foreclosure sale thereof, may at any time obtain a valid identification number for any such machinery, equipment or apparatus upon application therefor to the Division of Motor Vehicles.
  4. Any person, firm or corporation who shall violate any part of this section shall be guilty of a Class 1 misdemeanor.

History. 1949, c. 928; 1951, c. 1110 s. 1; 1953, c. 257; 1975, c. 716, s. 5; 1993, c. 539, s. 274; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-401.4. Identifying marks on machines and apparatus; application to Division of Motor Vehicles for numbers.

  1. No person, firm or corporation shall willfully remove, deface, destroy, alter or cover over the manufacturer’s serial or engine number or any other manufacturer’s number or other distinguishing number or identification mark upon any machine or other apparatus, including but not limited to farm equipment, machinery and apparatus, but excluding electric storage batteries, nor shall any person, firm or corporation place or stamp any serial, engine, or other number or mark upon such machinery, apparatus or equipment except as provided for in this section, nor shall any person, firm or corporation purchase or take into possession or sell, trade, transfer, devise, give away or in any manner dispose of such machinery, apparatus, or equipment except by intestate succession or as junk or scrap after the manufacturer’s serial or engine number or mark has been willfully removed, defaced, destroyed, altered or covered up unless a new number or mark has been added as provided in this section: Provided, however, that this section shall not prohibit or prevent the owner or holder of a mortgage, conditional sales contract, title retaining contract, or a trustee under a deed of trust from taking possession for the purpose of foreclosure under a power of sale or by court order, of such machinery, apparatus, or equipment, or from selling the same by foreclosure sale under a power contained in a mortgage, conditional sales contract, title retaining contract, deed of trust, or court order; or from taking possession thereof in satisfaction of the indebtedness secured by the mortgage, deed of trust, conditional sales contract, or title retaining contract pursuant to an agreement with the owner.
  2. Each seller of farm machinery, farm equipment or farm apparatus covered by this section shall give the purchaser a bill of sale for such machinery, equipment or apparatus and shall include in the bill of sale the manufacturer’s serial number or distinguishing number or identification mark, which the seller warrants to be true and correct according to his invoice or bill of sale as received from his manufacturer, supplier, or distributor or dealer.
  3. Each user of farm machinery, farm equipment or farm apparatus whose manufacturer’s serial number, distinguishing number or identification mark has been obliterated or is now unrecognizable, may obtain a valid identification number for any such machinery, equipment or apparatus upon application for such number to the Division of Motor Vehicles accompanied by satisfactory proof of ownership and a subsequent certification to the Division by a member of the North Carolina Highway Patrol that said applicant has placed the number on the proper machinery, equipment or apparatus. The Division of Motor Vehicles is hereby authorized and empowered to issue appropriate identification marks or distinguishing numbers for machinery, equipment or apparatus upon application as provided in this section and the Division is further authorized and empowered to designate the place or places on the machinery, equipment or apparatus at which the identification marks or distinguishing numbers shall be placed. The Division is also authorized to designate the method to be used in placing the identification marks or distinguishing numbers on the machinery, equipment or apparatus: Provided, however, that the owner or holder of the mortgage conditional sales contract, title retaining contract, or trustee under a deed of trust in possession of such encumbered machinery, equipment, or apparatus from which the manufacturer’s serial or engine number or other manufacturer’s number or distinguishing mark has been obliterated or has become unrecognizable or the purchaser at the foreclosure sale thereof, may at any time obtain a valid identification number for any such machinery, equipment or apparatus upon application therefor to the Division of Motor Vehicles.
  4. Except as otherwise provided in this subsection, any person, firm, or corporation who shall violate any part of this section shall be guilty of a Class 1 misdemeanor. If the machine or other apparatus was valued at more than one thousand dollars ($1,000) at the time of the offense, then the person, firm, or corporation shall be guilty of a Class H felony.

History. 1949, c. 928; 1951, c. 1110 s. 1; 1953, c. 257; 1975, c. 716, s. 5; 1993, c. 539, s. 274; 1994, Ex. Sess., c. 24, s. 14(c); 2021-36, s. 2.

Editor’s Note.

Session Laws 2021-36, s. 3, made the rewriting of subsection (d) of this section by Session Laws 2021-36, s. 2, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2021-36, s. 2, rewrote subsection (d), which read: “Any person, firm or corporation who shall violate any part of this section shall be guilty of a Class 1 misdemeanor.” For effective date and applicability, see editor’s note.

§ 14-401.5. [Repealed]

Repealed by Session Laws 2004-203, s. 21, effective August 17, 2004.

§ 14-401.6. Unlawful to possess, etc., tear gas except for certain purposes.

  1. It is unlawful for any person, firm, corporation or association to possess, use, store, sell, or transport within the State of North Carolina, any form of that type of gas generally known as “tear gas,” or any container or device for holding or releasing that gas; except this section does not apply to the possession, use, storage, sale or transportation of that gas or any container or device for holding or releasing that gas:
    1. By officers and enlisted personnel of the Armed Forces of the United States or this State while in the discharge of their official duties and acting under orders requiring them to carry arms or weapons;
    2. By or for any governmental agency for official use of the agency;
    3. By or for county, municipal or State law-enforcement officers in the discharge of their official duties;
    4. By or for security guards registered under Chapter 74C of the General Statutes, company police officers commissioned under Chapter 74E of the General Statutes, or campus police officers commissioned under Chapter 74G of the General Statutes provided they are on duty and have received training according to standards prescribed by the State Bureau of Investigation;
    5. For bona fide scientific, educational, or industrial purposes;
    6. In safes, vaults, and depositories, as a means or protection against robbery;
    7. For use in the home for protection and elsewhere by individuals, who have not been convicted of a felony, for self-defense purposes only, as long as the capacity of any:
      1. Tear gas device or container does not exceed 150 cubic centimeters,
      2. Tear gas cartridge or shell does not exceed 50 cubic centimeters, and
      3. Tear gas device or container does not have the capability of discharging any cartridge, shell, or container larger than 50 cubic centimeters.
  2. Violation of this section is a Class 2 misdemeanor.
  3. Tear gas for the purpose of this section shall mean any solid, liquid or gaseous substance or combinations thereof which will, upon dispersion in the atmosphere, cause tears in the eyes, burning of the skin, coughing, difficulty in breathing or any one or more of these reactions and which will not cause permanent damage to the human body, and the substance and container or device is designed, manufactured, and intended to be used as tear gas.

History. 1951, c. 592; 1969, c. 1224, s. 8; 1977, c. 126; 1979, c. 661; 1983, c. 794, s. 9; 1991 (Reg. Sess., 1992), c. 1043, s. 2; 1993, c. 151, s. 1; c. 539, s. 276; 1994, Ex. Sess., c. 24, s. 14(c); 2005-231, s. 10; 2011-183, s. 12.

Effect of Amendments.

Session Laws, 2005-231, s. 10, effective July 28, 2005, inserted “or campus police officers commissioned under Chapter 74G of the General Statutes” and made a minor stylistic change in subdivision (a)(4).

Session Laws 2011-183, s. 12, effective June 20, 2011, substituted “Armed Forces” for “armed forces” in subdivision (a)(1).

§ 14-401.7. Persons, firms, banks and corporations dealing in securities on commission taxed as a private banker.

No person, bank, or corporation, without a license authorized by law, shall act as a stockbroker or private banker. Any person, bank, or corporation that deals in foreign or domestic exchange certificates of debt, shares in any corporation or charter companies, bank or other notes, for the purpose of selling the same or any other thing for commission or other compensation, or who negotiates loans upon real estate securities, shall be deemed a security broker. Any person, bank, or corporation engaged in the business of negotiating loans on any class of security or in discounting, buying or selling negotiable or other papers or credits, whether in an office for the purpose or elsewhere shall be deemed to be a private banker. Any person, firm, or corporation violating this section shall be guilty of a Class 3 misdemeanor and pay a fine of not less than one hundred ($100.00) nor more than five hundred dollars ($500.00) for each offense.

History. 1939, c. 310, s. 1004; 1953, c. 970, s. 9; 1993, c. 539, s. 277; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-401.8. [Repealed]

Repealed by Session Laws 2015-286, s. 1.1(2), effective October 22, 2015.

History. 1955, c. 958; 1993, c. 539, s. 278; 1994, Ex. Sess., c. 24, s. 14(c); repealed by Session Laws 2015-286, s. 1.1(2), effective October 22, 2015.

Editor’s Note.

Former G.S. 14-401.8 pertained to false statement of emergency in regards to refusing to relinquish party telephone line in emergency.

§ 14-401.9. Parking vehicle in private parking space without permission.

It shall be unlawful for any person other than the owner or lessee of a privately owned or leased parking space to park a motor or other vehicle in such private parking space without the express permission of the owner or lessee of such space; provided, that such private parking lot be clearly designated as such by a sign no smaller than 24 inches by 24 inches prominently displayed at the entrance thereto, and provided further, that the parking spaces within the lot be clearly marked by signs setting forth the name of each individual lessee or owner.

Any person violating any of the provisions of this section shall be guilty of a Class 3 misdemeanor and upon conviction shall be fined not more than ten dollars ($10.00) in the discretion of the court.

History. 1955, c. 1019; 1977, c. 398, s. 2; 1993, c. 539, s. 279; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-401.10. Soliciting advertisements for official publications of law-enforcement officers’ associations.

Every person, firm or corporation who solicits any advertisement to be published in any law-enforcement officers’ association’s official magazine, yearbook, or other official publication, shall disclose to the person so solicited, whether so requested or not, the name of the law-enforcement association for which such advertisement is solicited, together with written authority from the president or secretary of such association to solicit such advertising on its behalf.

Any person, firm or corporation violating the provisions of this section shall be guilty of a Class 2 misdemeanor.

History. 1961, c. 518; 1969, c. 1224, s. 8; 1993, c. 539, s. 280; 1994, Ex. Sess., c. 24, s. 14(c).

§ 14-401.11. Distribution of certain food or beverage prohibited.

  1. It shall be unlawful for any person to knowingly distribute, sell, give away or otherwise cause to be placed in a position of human accessibility or ingestion, any food, beverage, or other eatable or drinkable substance which that person knows to contain any of the following:
    1. Any noxious or deleterious substance, material or article which might be injurious to a person’s health or might cause a person any physical discomfort.
    2. Any controlled substance included in any schedule of the Controlled Substances Act.
    3. Any poisonous chemical or compound or any foreign substance such as, but not limited to, razor blades, pins, and ground glass, which might cause death, serious physical injury or serious physical pain and discomfort.
  2. Penalties.
    1. Any person violating the provisions of G.S. 14-401.11(a)(1):
      1. Where the actual or possible effect on a person eating or drinking the food, beverage, or other substance was or would be limited to mild physical discomfort without any lasting effect, shall be guilty of a Class I felony.
      2. Where the actual or possible effect on a person eating or drinking the food, beverage, or other substance was or would be greater than mild physical discomfort without any lasting effect, shall be punished as a Class H felon.
    2. Any person violating the provisions of G.S. 14-401.11(a)(2) shall be punished as a Class F felon.
    3. Any person violating the provisions of G.S. 14-401.11(a)(3) shall be punished as a Class C felon.

History. 1971, c. 564; 1973, c. 540, s. 1; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1993, c. 539, s. 1242; 1994, Ex. Sess., c. 24, s. 14(c); 2019-245, s. 6(b).

Cross References.

For structured sentencing provisions, see G.S. 15A-1340.10 et seq.

Editor’s Note.

Session Laws 2019-245, s. 9(c), made the amendment of this section by Session Laws 2019-245, s. 6(b), effective December 1, 2019, and applicable to offenses committed on or after that date.

Session Laws 2019-245, s. 9(a), is a severability clause.

Effect of Amendments.

Session Laws 2019-245, s. 6(b), substituted “or beverage” for “at Halloween and all other times” in the section heading; rewrote the introductory language of subsection (a), which read: “It shall be unlawful for any person to knowingly distribute, sell, give away or otherwise cause to be placed in a position of human accessibility, accessibility, any food or eatable substance which that person knows to contain:”; substituted “eating or drinking the food, beverage, or other substance” for “eating the food or substance” in subdivisions (b)(1) and (b)(2); and made stylistic changes. For effective date and applicability, see editor’s note.

CASE NOTES

Coffee. —

The legislature obviously intended for a beverage such as coffee to be included within this section’s definition of “food or an eatable substance.” State v. Phillips, 88 N.C. App. 526, 364 S.E.2d 196, 1988 N.C. App. LEXIS 1185 (1988), rev'd, 325 N.C. 222 , 381 S.E.2d 325, 1989 N.C. LEXIS 376 (1989).

§ 14-401.12. Soliciting charitable contributions by telephone.

  1. Any professional solicitor who solicits by telephone contributions for charitable purposes or in any way compensates another person to solicit by telephone contributions for charitable purposes shall be guilty of a Class 1 misdemeanor. Any person compensated by a professional solicitor to solicit by telephone contributions for charitable purposes shall be guilty of a Class 1 misdemeanor.
  2. Definitions. —  Unless a different meaning is required by the context, the following terms as used in this section have the meanings hereinafter respectively ascribed to them:
    1. “Charitable purpose” shall mean any charitable, benevolent, religious, philanthropic, environmental, public or social advocacy or eleemosynary purpose for religion, health, education, social welfare, art and humanities, civic and public interest.
    2. “Contribution” shall mean any promise, gift, devise or other grant for consideration or otherwise, of any money or property of any kind or value, including the promise to pay, which contribution is wholly or partly induced by a solicitation. The term “contribution” shall not include payments by members of an organization for membership fees, dues, fines or assessments, or for services rendered to individual members, if membership in such organization confers a bona fide right, privilege, professional standing, honor or other direct benefit, other than the right to vote, elect officers, or hold offices; nor any money, credit, financial assistance or property received from any governmental authority; nor any donation of blood or any anatomical gift made pursuant to the Revised Uniform Anatomical Gift Act. Reference to dollar amounts of “contributions” or “solicitations” in this section means, in the case of payments or promises to pay for merchandise or rights of any description, the value of the total amount paid or promised to be paid for such merchandise or rights, and not merely that portion of the purchase price to be applied to a charitable purpose.
    3. “Professional fund-raising counsel” shall mean any person who for a flat fixed fee under a written agreement plans, conducts, manages, carries on, or acts as a consultant, whether directly or indirectly, in connection with soliciting contributions for, or on behalf of any charitable organization but who actually solicits no contributions as a part of such services.
    4. “Professional solicitor” shall mean any person who, for a financial or other consideration, solicits contributions for or on behalf of a charitable organization, whether such solicitation is performed personally or through its agents, servants or employees specially employed by or for a charitable organization, who are engaged in the solicitation of contributions under the direction of such person; or a person who plans, conducts, manages, carries on, advises or acts as a consultant, whether directly or indirectly, to a charitable organization in connection with the solicitation of contributions but does not qualify as “professional fund-raising counsel” as defined in this section. A bona fide salaried officer or employee of a charitable organization maintaining a permanent establishment within the State or the bona fide salaried officer or employee of a parent organization certified as tax exempt shall not be deemed to be a professional solicitor.
    5. The words “solicit” and “solicitation” shall mean the request or appeal, directly or indirectly, for any contribution on the plea or representation that such contribution will be used for a charitable purpose. Solicitation as defined herein shall be deemed to occur when the request is made, at the place the request is received, whether or not the person making the same actually receives any contribution.
  3. A solicitation by telephone is presumed to be for a charitable purpose if the person making the solicitation states or implies that some other named person or organization, other than the professional solicitor or his employees, is a sponsor or endorser of the solicitation who will share in the proceeds that result from the telephone solicitation.

History. 1981, c. 805, s. 1; 1993, c. 539, s. 281; 1994, Ex. Sess., c. 24, s. 14(c); 2007-538, s. 8; 2011-284, s. 10.

Editor’s Note.

Session Laws 2007-538, s. 11, provides: “The North Carolina Department of Transportation, Division of Motor Vehicles, in cooperation with the License to Give Trust Fund Commission, shall use available grant-in-aid funds from the State and federal governments and other sources to enhance online access such that donors and prospective donors may update, amend, or revoke information on the donor’s or prospective donor’s drivers license or donor card.”

Effect of Amendments.

Session Laws 2007-538, s. 8, effective October 1, 2007, in subdivision (b)(2), substituted “anatomical gift made pursuant to the Revised Uniform Anatomical Gift Act” for “gift made pursuant to the Uniform Anatomical Gift Act” at the end of the second sentence.

Session Laws 2011-284, s. 10, effective June 24, 2011, deleted “bequest” following “gift” in the first sentence of subdivision (b)(2).

CASE NOTES

Section Is Unconstitutional. —

This section contravenes U.S. Const., Amends. I and XIV and is therefore void and unenforceable. Optimist Club v. Riley, 563 F. Supp. 847, 1982 U.S. Dist. LEXIS 10006 (E.D.N.C. 1982).

§ 14-401.13. Failure to give right to cancel in off-premises sales.

  1. It shall be a Class 3 misdemeanor for any sellers, as defined hereinafter, in connection with an off-premises sale, as defined hereinafter, willfully to:
    1. Fail to furnish the buyer with a fully completed receipt or copy of any contract pertaining to such sale at the time of its execution, which is in the same language, e.g., Spanish, as that principally used in the oral sales presentation and which shows the date of the transaction and contains the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer or on the front page of the receipt if a contract is not used and in boldface type of a minimum size of 10 points, a statement in substantially the following form: “You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.”
    2. Fail to furnish each buyer, at the time he signs the off-premises sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned “NOTICE OF CANCELLATION”, which shall be attached to the contract or receipt and easily detachable, and which shall contain in boldface type in a minimum size of 10 points, the following information and statements in the same language, e.g., Spanish, as that used in the contract:

      Click to view

    3. Fail, before furnishing copies of the “Notice of Cancellation” to the buyer, to complete both copies by entering the name of the seller, the address of the seller’s place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation.
    4. Fail to inform each buyer orally, at the time he signs the contract or purchases the goods or services, of his right to cancel.
    5. Misrepresent in any manner the buyer’s right to cancel.
  2. Regardless of the seller’s compliance or noncompliance with the requirements of the preceding subsection, it shall be a Class 3 misdemeanor for any seller, as defined hereinafter, to willfully fail or refuse to honor any valid notice of cancellation by a buyer and within 10 business days after the receipt of such notice, to (i) refund all payments made under the contract or sale; (ii) return any goods or property traded in, in substantially as good condition as when received by the seller; (iii) cancel and return any negotiable instrument executed by the buyer in connection with the contract or sale and take any action necessary or appropriate to terminate promptly any security interest created in the transaction. If the seller failed to provide a form Notice of Cancellation to the buyer, then oral notice of cancellation by the buyer is sufficient for purposes of this subsection.
  3. For the purposes of this section, the following definitions shall apply:
    1. Off-Premises Sale. — A sale, lease, or rental of consumer goods or services with a purchase price of twenty-five dollars ($25.00) or more, whether under single or multiple contracts, in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer’s agreement or offer to purchase is made at a place other than the place of business of the seller. The term “off-premises sale” does not include a transaction:
      1. Made pursuant to prior negotiations in the course of a visit by the buyer to a retail business establishment having a fixed permanent location where the goods are exhibited or the services are offered for sale on a continuing basis; or
      2. In which the consumer is accorded the right of rescission by the provisions of the Consumer Credit Protection Act (15 U.S.C. 1635) or regulations issued pursuant thereto; or
      3. In which the buyer has initiated the contact and the goods or services are needed to meet a bona fide immediate personal emergency of the buyer, and the buyer furnishes the seller with a separate dated and signed personal statement in the buyer’s handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three business days; or
      4. Conducted and consummated entirely by mail or telephone; and without any other contact between the buyer and the seller or its representative prior to delivery of the goods or performance of the services; or
      5. In which the buyer has initiated the contact and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the buyer’s property. If in the course of such a visit, the seller sells the buyer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services would not fall within this exclusion; or
      6. Pertaining to the sale or rental of real property, to the sale of insurance or to the sale of securities or commodities by a broker-dealer registered with the Securities and Exchange Commission; or
      7. Executed at an auction; or
      8. Sales of motor vehicles defined in G.S. 20-286(10) by motor vehicle sales representatives licensed pursuant to G.S. 20-287 et seq.
    2. Consumer Goods or Services. — Goods or services purchased, leased, or rented primarily for personal, family, or household purposes, including courses of instruction or training regardless of the purpose for which they are taken.
    3. Seller. — Any person, partnership, corporation, or association engaged in the off-premises sale of consumer goods or services. However, a nonprofit corporation or association, or member or employee thereof acting on behalf of such an association or corporation, shall not be a seller within the meaning of this section.
    4. Place of Business. — The main or permanent branch office or local address of a seller.
    5. Purchase Price. — The total price paid or to be paid for the consumer goods or services, including all interest and service charges.
    6. Business Day. — Any calendar day except Sunday, or the following business holidays: New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day, and Good Friday.

‘‘NOTICE OF CANCELLATION (enter date of transaction) (date) You may cancel this transaction, without any penalty or obligation, within three business days from the above date. If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within 10 business days following receipt by the seller of your cancellation notice and any security interest arising out of the transaction will be canceled. If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk. In the event you purchased antiques at an antique show and cancel, and your residence is out-of-state, you must deliver the purchased goods to the seller. If you do make the goods available to the seller and the seller does not pick them up within 20 days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract. To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, or send a telegram, to (name of seller) at (address of seller’s place of business) not later than midnight of (date) I hereby cancel this transaction. (date) ’’ (buyer’s signature)

History. 1985, c. 652, s. 1; 1987, c. 551, ss. 1, 2; 1993, c. 141, s. 1; c. 539, s. 282; 1994, Ex. Sess., c. 24, s. 14(c).

Legal Periodicals.

For article, “It’s All About the Principal: Preserving Consumers’ Right of Rescission Under the Truth in Lending Act,” 89 N.C.L. Rev. 171 (2010).

§ 14-401.14. Ethnic intimidation; teaching any technique to be used for ethnic intimidation.

  1. If a person shall, because of race, color, religion, nationality, or country of origin, assault another person, or damage or deface the property of another person, or threaten to do any such act, he shall be guilty of a Class 1 misdemeanor.
  2. A person who assembles with one or more persons to teach any technique or means to be used to commit any act in violation of subsection (a) of this section is guilty of a Class 1 misdemeanor.

History. 1991, c. 493, s. 1; 1993, c. 332, s. 1; c. 539, s. 283; 1994, Ex. Sess., c. 14, s. 14(b); c. 24, s. 14(a), (c); 1995, c. 509, s. 10.

Legal Periodicals.

Survey of Developments in North Carolina Law and the Fourth Circuit, 1999: Clarifying North Carolina’s Ethnic Intimidation Statute and Penalty Enhancement for Bias Crimes, 78 N.C.L. Rev. 2003 (2000).

CASE NOTES

Evidence Sufficient for Conviction. —

Trial court did not err in denying a juvenile’s motion to dismiss a charge that he committed a violation of North Carolina’s Ethnic Intimidation Statute, G.S. 14-401.14 at the close of all the evidence, as the State presented sufficient evidence that he: (1) sent an E-mail to the African-American victim, which contained racial slurs and was signed “KKK,” and directly communicated an intent to harm her; and (2) testified that he sent the E-mail to the victim in protest of her alleged differing treatment against him as compared with others who were African-American. Thus, the State met its burden in showing that the E-mail was sent to the victim for racially motivated reasons. In re B.C.D., 177 N.C. App. 555, 629 S.E.2d 617, 2006 N.C. App. LEXIS 1073 (2006).

§ 14-401.15. Telephone sales recovery services.

  1. Except as provided in subsection (c) of this section, it shall be unlawful for any person or firm to solicit or require payment of money or other consideration in exchange for recovering or attempting to recover:
    1. Money or other valuable consideration previously tendered to a telephonic seller, as defined in G.S. 66-260 ; or
    2. Prizes, awards, or other things of value that the telephonic seller represented would be delivered.
  2. A violation of this section shall be punishable as a Class 1 misdemeanor. Any violation involving actual collection of money or other consideration from a customer shall be punishable as a Class H felony.
  3. This section does not apply to attorneys licensed to practice law in this State, to persons licensed by the North Carolina Private Protective Services Board, or to any collection agent properly holding a permit issued by the Department of Insurance to do business in this State.

History. 1997-482, s. 2.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 389.

§ 14-401.16. Contaminate food or drink to render one mentally incapacitated or physically helpless.

  1. It is unlawful knowingly to contaminate any food, drink, or other edible or potable substance with a controlled substance as defined in G.S. 90-87(5) that would render a person mentally incapacitated or physically helpless with the intent of causing another person to be mentally incapacitated or physically helpless.
  2. It is unlawful knowingly to manufacture, sell, deliver, or possess with the intent to manufacture, sell, deliver, or possess a controlled substance as defined in G.S. 90-87(5) for the purpose of violating this section.
  3. A violation of this section is a Class H felony. However, if a person violates this section with the intent of committing an offense under G.S. 14-27.22 or G.S. 14-27.27 , the violation is a Class G felony.
  4. This act does not apply if the controlled substance added to the food, drink, or other edible or potable substance is done at the direction of a licensed physician as part of a medical procedure or treatment with the patient’s consent.

History. 1997-501, s. 2; 2015-181, s. 39.

Editor’s Note.

Session Laws 1997-501, s. 2, enacted this section as G.S. 14-401.15 . It has been redesignated as 14-401.16 at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2015-181, s. 39, effective December 1, 2015, substituted “G.S. 14-27.22 or G.S. 14-27.27 ” for “G.S. 14-27.3 or G.S. 14-27.5 ” in subsection (c). For applicability, see editor’s note.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 417.

§ 14-401.17. Unlawful removal or destruction of electronic dog collars.

  1. It is unlawful to intentionally remove or destroy an electronic collar or other electronic device placed on a dog by its owner to maintain control of the dog.
  2. A first conviction for a violation of this section is a Class 3 misdemeanor. A second or subsequent conviction for a violation of this section is a Class 2 misdemeanor.
  3. This act is enforceable by officers of the Wildlife Resources Commission, by sheriffs and deputy sheriffs, and peace officers with general subject matter jurisdiction.
  4. Repealed by Session Laws 2005-94, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date.

History. 1993 (Reg. Sess., 1994), c. 699, s. 1-4; 1995 (Reg. Sess., 1996) c. 682; 1997-150; 1998-6, s. 1; 1999-51, s. 1; 2000-12, s. 1; 2004-60, s. 3; 2005-94, s. 1; 2005-305, s. 4.

Editor’s Note.

Session Laws 1993, c. 699, ss. 1 through 4, were codified as this section by the Revisor of Statutes.

Effect of Amendments.

Session Laws 2004-60, s. 3, effective October 1, 2004, and applicable to offenses committed on or after that date, inserted “Anson” and “Chowan” in subsection (c).

Session Laws 2005-94, s. 1, effective December 1, 2005, and applicable to offenses committed on or after that date, repealed subsection (d), which listed the counties to which this act applied.

Session Laws 2005-305, s. 4, effective October 1, 2005, and applicable to offenses occurring on or after that date, inserted “Washington” in the list of localities in subsection (d).

§ 14-401.18. Sale of certain packages of cigarettes prohibited.

  1. Definitions. —  The following definitions apply in this section:
    1. Cigarette. — Defined in G.S. 105-113.4 .
    2. Package. — Defined in G.S. 105-113.4 .
  2. Offenses. —  A person who sells or holds for sale (other than for export to a foreign country) a package of cigarettes that meets one or more of the following descriptions commits a Class A1 misdemeanor and engages in an unfair trade practice prohibited by G.S. 75-1.1 :
    1. The package differs in any respect with the requirements of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331, for the placement of labels, warnings, or any other information upon a package of cigarettes that is to be sold within the United States.
    2. The package is labeled “For Export Only,” “U.S. Tax Exempt,” “For Use Outside U.S.,” or has similar wording indicating that the manufacturer did not intend that the product be sold in the United States.
    3. The package was altered by adding or deleting the wording, labels, or warnings described in subdivision (1) or (2) of this subsection.
    4. The package was imported into the United States after January 1, 2000, in violation of 26 U.S.C. § 5754.
    5. The package violates federal trademark or copyright laws, federal laws governing the submission of ingredient information to federal authorities pursuant to 15 U.S.C. § 1335a, federal laws governing the import of certain cigarettes pursuant to 19 U.S.C. § 1681 and 19 U.S.C. § 1681b, or any other provision of federal law or regulation.
  3. Contraband. —  A package of cigarettes described in subsection (b) of this section is contraband and may be seized by a law enforcement officer. The procedure for seizure and disposition of this contraband is the same as the procedure under G.S. 105-113.31 and G.S. 105-113.32 for non-tax-paid cigarettes.

History. 1999-333, s. 5; 2002-145, s. 4.

Editor’s Note.

The number of this section was assigned by the Revisor of Statutes, the number in Session Laws 1999-333, s. 5 having been G.S.14-400.18.

§ 14-401.18A. Sale of certain e-liquid containers prohibited.

  1. The following definitions apply in this section:
    1. Child-resistant packaging. — Packaging that is designed or constructed to be significantly difficult for children under five years of age to open or obtain a toxic or harmful amount of the substance contained therein within a reasonable time and not difficult for adults to use properly, but does not mean packaging which all such children cannot open or obtain a toxic or harmful amount within a reasonable time.
    2. E-liquid. — A liquid product, whether or not it contains nicotine, that is intended to be vaporized and inhaled using a vapor product.
    3. E-liquid container. — A bottle or other container of e-liquid. The term does not include a container holding liquid that is intended for use in a vapor product if the container is pre-filled and sealed by the manufacturer and is not intended to be opened by the consumer.
    4. Vapor product. — Any noncombustible product that employs a mechanical heating element, battery, or electronic circuit regardless of shape or size and that can be used to heat a liquid solution contained in a vapor cartridge. The term includes an electronic cigarette, electronic cigar, electronic cigarillo, and electronic pipe.
  2. It shall be unlawful for any person, firm, or corporation to sell, offer for sale, or introduce into commerce in this State an e-liquid container unless the container constitutes child-resistant packaging. Any person who violates this section is guilty of a Class A1 misdemeanor.
  3. It shall be unlawful for any person, firm, or corporation to sell, offer for sale, or introduce into commerce in this State an e-liquid container for an e-liquid product containing nicotine unless the packaging for the e-liquid product states that the product contains nicotine. Any person who violates this section is guilty of a Class A1 misdemeanor.
  4. Any person, firm, or corporation that violates the provisions of this section shall be liable in damages to any person injured as a result of the violation.

History. 2015-141, s. 1.

§ 14-401.19. Filing false security agreements.

It shall be unlawful for any person, firm, corporation, or any other association of persons in this State, under whatever name styled, to present a record for filing under the provisions of Article 9 of Chapter 25 of the General Statutes with knowledge that the record is not related to a valid security agreement or with the intention that the record be filed for an improper purpose, such as to hinder, harass, or otherwise wrongfully interfere with any person. A violation of this section shall be a Class I felony.

History. 2001-231, s. 5; 2012-150, s. 6.

Cross References.

As to filing false lien or encumbrance, see G.S. 14-118.6 .

Effect of Amendments.

Session Laws 2012-150, s. 6, effective December 1, 2012, substituted “Class I felony” for “Class 2 misdemeanor” at the end of the last sentence. For applicability, see editor’s note.

§ 14-401.20. Defrauding drug and alcohol screening tests; penalty.

  1. It is unlawful for a person to do any of the following:
    1. Sell, give away, distribute, or market urine in this State or transport urine into this State with the intent that it be used to defraud a drug or alcohol screening test.
    2. Attempt to foil or defeat a drug or alcohol screening test by the substitution or spiking of a sample or the advertisement of a sample substitution or other spiking device or measure.
  2. It is unlawful for a person to do any of the following:
    1. Adulterate a urine or other bodily fluid sample with the intent to defraud a drug or alcohol screening test.
    2. Possess adulterants that are intended to be used to adulterate a urine or other bodily fluid sample for the purpose of defrauding a drug or alcohol screening test.
    3. Sell adulterants with the intent that they be used to adulterate a urine or other bodily fluid sample for the purpose of defrauding a drug or alcohol screening test.
  3. A violation of this section is punishable as follows:
    1. For a first offense under this section, the person is guilty of a Class 1 misdemeanor.
    2. For a second or subsequent offense under this section, the person is guilty of a Class I felony.

History. 2002-183, s. 1.

§ 14-401.21. Practicing “rebirthing technique”; penalty.

  1. It is unlawful for a person to practice a technique, whether known as a “rebirthing technique” or referred to by any other name, to reenact the birthing process in a manner that includes restraint and creates a situation in which a patient may suffer physical injury or death.
  2. A violation of this section is punishable as follows:
    1. For a first offense under this section, the person is guilty of a Class A1 misdemeanor.
    2. For a second or subsequent offense under this section, the person is guilty of a Class I felony.
  3. No State funds shall be used to pay for the rebirthing technique made unlawful by this section and performed in another state notwithstanding that the technique, whether known as a rebirthing technique or referred to by any other name, is lawful in that other state.

History. 2003-205, s. 1; 2004-124, s. 10.2F.

Effect of Amendments.

Session Laws 2004-124, s. 10.2F, effective July 1, 2004, added subsection (c).

§ 14-401.22. Concealment of death; disturbing human remains; dismembering human remains.

  1. Except as provided in subsection (a1) of this section, any person who, with the intent to conceal the death of a person, fails to notify a law enforcement authority of the death or secretly buries or otherwise secretly disposes of a dead human body is guilty of a Class I felony.

    (a1) Any person who, with the intent to conceal the death of a child, fails to notify a law enforcement authority of the death or secretly buries or otherwise secretly disposes of a dead child’s body is guilty of a Class H felony. For purposes of this subsection, a child is any person who is less than 16 years of age.

  2. Any person who aids, counsels, or abets any other person in concealing the death of a person is guilty of a Class A1 misdemeanor.
  3. Any person who willfully (i) disturbs, vandalizes, or desecrates human remains, by any means, including any physical alteration or manipulation of the human remains, or (ii) commits or attempts to commit upon any human remains any act of sexual penetration is guilty of a Class I felony. This subsection does not apply to:
    1. Acts by a first responder or others providing medical care.
    2. Acts committed as part of scientific or medical research, treatment, or diagnosis.
    3. Acts performed by a licensed funeral director or embalmer consistent with standard practice.
    4. Acts committed for the purpose of extracting body parts in accordance with usual and customary standards of medical practice.
    5. Acts by a professional archaeologist as defined in G.S. 70-28(4) acting pursuant to the provisions of Article 3 of Chapter 70 of the General Statutes.
    6. Acts committed for any other lawful purpose.
  4. Any person who attempts to conceal evidence of the death of another by knowingly and willfully dismembering or destroying human remains, by any means, including removing body parts or otherwise obliterating any portion thereof, shall be guilty of a Class H felony.
  5. Any person who violates subsection (a), (a1), or (d) of this section, knowing or having reason to know the body or human remains are of a person that did not die of natural causes, shall be guilty of a Class D felony.
  6. As used in this section, “human remains” means any dead human body in any condition of decay or any significant part of a dead human body, including any limb, organ, or bone.

History. 2005-288, s. 1; 2011-193, s. 1; 2013-52, s. 5.

Effect of Amendments.

Session Laws 2011-193, s. 1, effective December 1, 2011, and applicable to offenses committed on or after that date, added “disturbing human remains; dismembering human remains” in the section catchline; and added subsections (c) through (f).

Session Laws 2013-52, s. 5, effective December 1, 2013, added “Except as provided in subsection (a1) of this section” at the beginning of subsection (a); added subsection (a1); in subsection (e), substituted “subsection (a), (a1), or (d)” for “subsection (d)” and inserted “body or” preceding “human remains.” For applicability, see Editor’s note.

§ 14-401.23. Unlawful manufacture, sale, delivery, or possession of Salvia divinorum.

  1. It shall be unlawful for any person to knowingly or intentionally manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver Salvia divinorum or Salvinorin A.
  2. It shall be unlawful for any person to knowingly or intentionally possess Salvia divinorum or Salvinorin A.
  3. A violation of this section is punishable as follows:
    1. For a first or second offense under this section, the person is responsible for an infraction and shall be required to pay a fine of not less than twenty-five dollars ($25.00).
    2. For a third or subsequent offense under this section, the person is guilty of a Class 3 misdemeanor.
  4. For purposes of this section:
    1. “Deliver” means the actual constructive or attempted transfer of Salvia divinorum or Salvinorin A from one person to another.
    2. “Manufacture” means the production, preparation, propagation, compounding, conversion or processing of Salvia divinorum or Salvinorin A by any means, whether directly or indirectly, artificially or naturally, or by extraction from substances of a natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. Manufacture includes any packaging or repackaging of the substance, or labeling or relabeling of its container, except that this term does not include the preparation or compounding of the substance by an individual for the individual’s own use.
    3. “Production” includes the manufacture, planting, cultivation, growing, or harvesting of a plant.
  5. The provisions of this section shall not apply to:
    1. Employees or contractors of any accredited college or school of medicine or pharmacy at a public or private university in this State while performing medical or pharmacological research for such institution.
    2. The possession, planting, cultivation, growing, or harvesting of a plant strictly for aesthetic, landscaping, or decorative purposes.

History. 2009-538, s. 1.

§ 14-401.24. Unlawful possession and use of unmanned aircraft systems.

  1. It shall be a Class E felony for any person to possess or use an unmanned aircraft or unmanned aircraft system that has a weapon attached.
  2. It shall be a Class 1 misdemeanor for any person to fish or to hunt using an unmanned aircraft system.
  3. The following definitions apply to this section:
    1. To fish. — As defined in G.S. 113-130 .
    2. To hunt. — As defined in G.S. 113-130 .
    3. Unmanned aircraft. — As defined in G.S. 15A-300.1 .
    4. Unmanned aircraft system. — As defined in G.S. 15A-300.1 .
    5. Weapon. — Those weapons specified in G.S. 14-269 , 14-269.2, 14-284.1, or 14-288.8 and any other object capable of inflicting serious bodily injury or death when used as a weapon.
  4. This section shall not prohibit possession or usage of an unmanned aircraft or unmanned aircraft system that is authorized by federal law or regulation.

History. 2014-100, s. 34.30(d).

Legal Periodicals.

For article, “Drone Zoning,” see 95 N.C.L. Rev. 133 (2016).

§ 14-401.25. Unlawful distribution of images.

It shall be a Class A1 misdemeanor to publish or disseminate, for any purpose, recorded images taken by a person or non-law enforcement entity through the use of infrared or other similar thermal imaging technology attached to an unmanned aircraft system, as defined in G.S. 15A-300.1 , and revealing individuals, materials, or activities inside of a structure without the consent of the property owner.

History. 2014-100, s. 34.30(e).

§ 14-401.26. TNC driver failure to display license plate information.

It shall be unlawful for a transportation network company (TNC) driver, as defined in G.S. 20-280.1 , to fail to display the license plate number of the TNC driver’s vehicle as required by G.S. 20-280.5(d). A violation of this section shall be an infraction and shall be punishable by a fine of two hundred fifty dollars ($250.00).

History. 2019-194, s. 3(a).

Editor’s Note.

Session Laws 2019-194, s. 1, provides: “This act shall be known as the ‘Passenger Protection Act’ and may be cited by that name.”

Session Laws 2019-194, s. 3(b), made this section, as added by Session Laws 2019-194, s. 3(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

§ 14-401.27. Impersonation of a transportation network company driver.

It shall be unlawful for any person to impersonate a transportation network company (TNC) driver, as defined in G.S. 20-280.1 , by a false statement, false display of distinctive signage or emblems known as a trade dress, trademark, branding, or logo of the TNC, or any other act which falsely represents that the person has a current connection with a transportation network company or falsely represents that the person is responding to a passenger ride request for a transportation network company. A violation of this section is a Class H felony if the person impersonates a TNC driver during the commission of a separate felony offense. Any other violation of this section is a Class 2 misdemeanor.

History. 2019-194, s. 3.3(a).

Editor’s Note.

Session Laws 2019-194, s. 1, provides: “This act shall be known as the ‘Passenger Protection Act’ and may be cited by that name.”

Session Laws 2019-194, s. 3.3(b), made this section, as added by Session Laws 2019-194, s. 3.3(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Article 52A. Sale of Weapons in Certain Counties.

§ 14-402. Sale of certain weapons without permit forbidden.

  1. It is unlawful for any person, firm, or corporation in this State to sell, give away, or transfer, or to purchase or receive, at any place within this State from any other place within or without the State any pistol unless: (i) a license or permit is first obtained under this Article by the purchaser or receiver from the sheriff of the county in which the purchaser or receiver resides; or (ii) a valid North Carolina concealed handgun permit is held under Article 54B of this Chapter by the purchaser or receiver who must be a resident of the State at the time of the purchase.It is unlawful for any person or persons to receive from any postmaster, postal clerk, employee in the parcel post department, rural mail carrier, express agent or employee, railroad agent or employee within the State of North Carolina any pistol without having in his or their possession and without exhibiting at the time of the delivery of the same and to the person delivering the same the permit from the sheriff as provided in G.S. 14-403 . Any person violating the provisions of this section is guilty of a Class 2 misdemeanor.
  2. This section does not apply to an antique firearm or an historic edged weapon.
  3. The following definitions apply in this Article:
    1. Antique firearm. — Defined in G.S. 14-409.11 .
    2. , (3) Repealed by Session Laws 2011-56, s. 1, effective April 28, 2011. (4) Historic edged weapon. — Defined in G.S. 14-409.12 .

      (5) through (7) Repealed by Session Laws 2011-56, s. 1, effective April 28, 2011.

History. 1919, c. 197, s. 1; C.S., s. 5106; 1923, c. 106; 1947, c. 781; 1959, c. 1073, s. 2; 1971, c. 133, s. 2; 1979, c. 895, ss. 1, 2; 1993, c. 287, s. 1; c. 539, s. 284; 1994, Ex. Sess., c. 24, s. 14(c); 2004-183, s. 1; 2004-203, s. 1; 2009-6, s. 2; 2011-56, s. 1.

Applicability of This Article.

This Article is applicable to every county of this State except Warren and Watauga.

Session Laws 1959, c. 1073, s. 2, amended this and other sections of this Article by striking out the word “clerk” and the words “clerk of the superior court” wherever they appeared and substituting therefor the word “sheriff,” it being the intent and purpose of the amendatory act to transfer to the sheriffs the duties theretofore performed by the clerks of the superior court in issuing permits for the purchase of weapons and keeping the records of issuance of such permits and all other duties incident to the purchase, sale and ownership of weapons. Session Laws 1959, c. 1073, s. 4, as amended from time to time, excepts the following counties from the application of the 1959 amendments to this article: Pender, Warren and Watauga.

Ashe was deleted from the list of counties by Session Laws 1995, c. 304; Avery was deleted from the list by Session Laws 1977, c. 35; Bertie was deleted from the list by Session Laws 1983, c. 151; Bladen was deleted from the list by Session Laws 1977, c. 35; Caswell has been deleted from the list pursuant to Session Laws 1977, c. 347; Cherokee was deleted from the list by Session Laws 1977, c. 35; Clay was added to the list by Session Laws 1969, c. 276, and deleted from the list by Session Laws 1979, c. 134; Currituck was deleted from the list by Session Laws 1981, c. 196; Davie was deleted from the list by Session Laws 1977, c. 72; Duplin was deleted from the list by Session Laws 1993, c. 106, effective June 2, 1993; Franklin was deleted from the list by Session Laws 1975, cc. 139, 173; Greene has been deleted from the list pursuant to Session Laws 1977, c. 223; Halifax was deleted from the list by Session Laws 1975, cc. 173, 374; Harnett was deleted from the list by Session Laws 1967, c. 470, and Session Laws 1969, c. 658; Haywood was deleted from the list by Session Laws 1969, c. 6; Hertford was deleted from the list by Session Laws 1967, c. 903; Iredell was deleted from the list by Session Laws 1971, c. 410; Jackson was deleted from the list by Session Laws 1975, c. 173; Johnston was deleted from the list by Session Laws 1967, c. 122; Jones was deleted from the list by Session Laws 1969, c. 109; Lee was deleted from the list by Session Laws 1967, c. 470, and Session Laws 1969, c. 658; Lincoln was deleted from the list by Session Laws 1983 (Reg. Sess., 1984), c. 962; Macon was deleted from the list by Session Laws 1975, c. 173; Madison was deleted from the list by Session Laws 1993 (Reg. Sess., 1994), c. 634; Mecklenburg was deleted from the list by Session Laws 1969, c. 1305; Mitchell was deleted from the list by Session Laws 1993, c. 48, effective May 18, 1993; Moore has been deleted from the list pursuant to Session Laws 1977, c. 235; Pamlico was deleted from the list by Session Laws 1967, c. 6; Pender was deleted from the list by Session Laws 1989 (Reg. Sess., 1990), c. 910, effective July 13, 1990; Perquimans was deleted from the list by Session Laws 1993, c. 64, effective May 24, 1993; Person was deleted from the list by Session Laws 1975, c. 134; Polk was deleted from list by Session Laws 1993 (Reg. Sess., 1994), c. 634; Rockingham was deleted from the list by Session Laws 1979, c. 323; Sampson has been deleted from the list pursuant to Session Laws 1977, c. 347; Stokes was deleted from the list by Session Laws 1975, c. 173; Tyrrell was deleted from the list by Session Laws 1993 (Reg. Sess., 1994), c. 581; Union was deleted from the list by Session Laws 1973, c. 421; Vance was deleted from the list by Session Laws 1969, c. 396; Washington was deleted from the list by Session Laws 1971, c. 192; Wilson was deleted from the list by Session Laws 1963, c. 537; Yancey was deleted from the list by Session Laws 1993 (Reg. Sess., 1994), c. 634.

Editor’s Note.

Session Laws 2015-195, s. 10.5, provides: “The Department of Public Safety, in consultation with the Office of Information Technology Services and the Federal Bureau of Investigation, shall study the development of a system to allow a background check to be conducted in private transfers of firearms. The study shall consider methods that would allow the seller or transferor to access the Criminal Justice Law Enforcement Automated Data Services (CJLEADS), the National Instant Criminal Background Check System (NICS), or another similar system that would provide information to the seller or transferor regarding the purchaser or transferee’s eligibility to purchase a pistol.

“The Department shall report its findings and any recommended legislation to the Joint Legislative Oversight Committee on Justice and Public Safety on or before January 1, 2019.”

Effect of Amendments.

Session Laws 2004-183, s. 1, effective August 10, 2004, in subsection (a), substituted “is” for “shall be” preceding “unlawful,” deleted “a” following “unless,” inserted “: (i) a” preceding “license or permit,” substituted “is” for “therefor has” preceding “first,” deleted “been” preceding “obtained,” inserted “under this Article” preceding “by the purchaser,” substituted “the” for “that” preceding “purchaser,” and added “; or (ii) a valid North Carolina concealed handgun permit is held under Article 54B of this Chapter by the purchaser or receiver who must be a resident of the State at the time of the purchase” at the end; and substituted “is” for “shall be” two times in the paragraph following subsection (a).

Session Laws 2004-203, s. 1, effective August 17, 2004, in subdivision (c)(3), substituted “device” for “devise” and “that” for “which.”

Session Laws 2009-6, s. 2, effective March 19, 2009, in subsection (c), substituted “Article” for “section” in the introductory language, and added subdivisions (c)(5) through (c)(7).

Session Laws 2011-56, s. 1, effective April 28, 2011, in the first and last paragraphs in subsection (a), deleted “or crossbow” following “pistol”; deleted subdivisions (c)(2) and (c)(3), which were the definitions for “Bolt” and “Crossbow,” respectively; and deleted subdivisions (c)(5) through (c)(7), which were the definitions for “Manufacturer of crossbows,” “Retail dealer of crossbows,” and “Wholesale dealer of crossbows,” respectively.

Legal Periodicals.

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

For comment, “Misfire: How the North Carolina Pistol Purchase Permit System Misses the Mark of Constitutional Muster and Effectiveness,” see 99 N.C.L. Rev. 529 (2021).

§ 14-403. Permit issued by sheriff; form of permit; expiration of permit.

The sheriffs of any and all counties of this State shall issue to any person, firm, or corporation in any county a permit to purchase or receive any weapon mentioned in this Article from any person, firm, or corporation offering to sell or dispose of the weapon. The permit shall expire five years from the date of issuance. The permit shall be a standard form created by the State Bureau of Investigation in consultation with the North Carolina Sheriffs’ Association, shall be of a uniform size and material, and shall be designed with security features intended to minimize the ability to counterfeit or replicate the permit and shall be set forth as follows:

North Carolina, County. I, , Sheriff of said County, do hereby certify that I have conducted a criminal background check of the applicant, whose place of residence is in (or) in Township, County, North Carolina, and have received no information to indicate that it would be a violation of State or federal law for the applicant to purchase, transfer, receive, or possess a handgun. The applicant has further satisfied me as to his, her (or) their good moral character. Therefore, a permit is issued to to purchase one pistol from any person, firm or corporation authorized to dispose of the same. This permit expires five years from its date of issuance. This day of , . Sheriff.

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The standard permit created by this section shall be used statewide by the sheriffs of any and all counties and, when issued by a sheriff, shall also contain an embossed seal unique to the office of the issuing sheriff.

History. 1919, c. 197, s. 2; C.S., s. 5107; 1959, c. 1073, s. 2; 1981 (Reg. Sess., 1982), c. 1395, s. 3; 1995, c. 487, s. 1; 1999-456, s. 59; 2013-369, s. 17.1; 2015-195, s. 10(a).

Editor’s Note.

Session Laws 2015-195, s. 10(b), provides: “Permits issued pursuant to Article 52A of Chapter 14 of the General Statutes prior to the effective date of subsection (a) of this section [December 1, 2015] shall remain valid until expiration. Any person possessing a valid permit issued prior to the effective date of subsection (a) of this section may exchange that permit for an updated permit from the sheriff that issued the original permit with no further application required. Any permit issued in exchange shall expire on the same date as the original permit for which it was exchanged.”

Session Laws 2015-195, s. 10(c), provides: “The State Bureau of Investigation shall make reasonable efforts to notify federally licensed firearm dealers in this State of the new permit appearance and requirements implemented by subsection (a) of this section.”

Session Laws 2015-195, s. 18, made the amendment of this section by Session Laws 2015-195, s. 10(a) applicable to permits issued on or after December 1, 2015, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2013-369, s. 17.1, effective October 1, 2013, deleted “license or” preceding “permit” throughout the section.

Session Laws 2015-195, s. 10(a), effective December 1, 2015, substituted “The permit shall be a standard form created by the State Bureau of Investigation in consultation with the North Carolina Sheriffs’ Association, shall be of a uniform size and material, and shall be designed with security features intended to minimize the ability to counterfeit or replicate the permit and shall be set forth as follows” for “The permit shall be in the following form” in the first paragraph; and added the last paragraph.

Legal Periodicals.

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

For comment, “Misfire: How the North Carolina Pistol Purchase Permit System Misses the Mark of Constitutional Muster and Effectiveness,” see 99 N.C.L. Rev. 529 (2021).

CASE NOTES

Convicted Felon. —

Regardless of whether a criminal defendant pleads guilty or no contest, where a felony conviction is ultimately adjudicated, the defendant is thereafter a convicted felon for the purposes of G.S. 14-404 and prohibited from obtaining a hand gun. Friend v. State, 169 N.C. App. 99, 609 S.E.2d 473, 2005 N.C. App. LEXIS 535 (2005).

§ 14-404. Issuance or refusal of permit; appeal from refusal; grounds for refusal; sheriff’s fee.

  1. Upon application, and such application must be provided by the sheriff electronically, the sheriff shall issue the permit to a resident of that county, unless the purpose of the permit is for collecting, in which case a sheriff can issue a permit to a nonresident, when the sheriff has done all of the following:
    1. Verified, before the issuance of a permit, by a criminal history background investigation that it is not a violation of State or federal law for the applicant to purchase, transfer, receive, or possess a handgun. The sheriff shall determine the criminal and background history of any applicant by accessing computerized criminal history records as maintained by the State Bureau of Investigation and the Federal Bureau of Investigation, by conducting a national criminal history records check, by conducting a check through the National Instant Criminal Background Check System (NICS), and by conducting a criminal history check through the Administrative Office of the Courts.
    2. Fully satisfied himself or herself by affidavits, oral evidence, or otherwise, as to the good moral character of the applicant. For purposes of determining an applicant’s good moral character to receive a permit, the sheriff shall only consider an applicant’s conduct and criminal history for the five-year period immediately preceding the date of the application.
    3. Fully satisfied himself or herself that the applicant desires the possession of the weapon mentioned for (i) the protection of the home, business, person, family or property, (ii) target shooting, (iii) collecting, or (iv) hunting.
  2. If the sheriff is not fully satisfied, the sheriff may, for good cause shown, decline to issue the permit and shall provide to the applicant within seven days of the refusal a written statement of the reason(s) for the refusal. The statement shall cite the specific facts upon which the sheriff concluded that the applicant was not qualified for the issuance of a permit and list, by statute number, the applicable law upon which the denial is based. An appeal from the refusal shall lie by way of petition to the superior court in the district in which the application was filed. The determination by the court, on appeal, shall be upon the facts, the law, and the reasonableness of the sheriff’s refusal, and shall be final.

    (b1) The sheriff shall keep a list of all permit denials, with the specific reasons for the denials noted. The list shall not include any information that would identify the applicant whose application was denied. The list, as described in this subsection, shall be a public record, and the sheriff shall make the list available upon request to any member of the public. The list shall be organized by the quarters of the year, showing the number of denials and the reasons in each three-month period, and the list shall only be released for past, completed quarters.

  3. A permit may not be issued to the following persons:
    1. One who is under an indictment or information for or has been convicted in any state, or in any court of the United States, of a felony (other than an offense pertaining to antitrust violations, unfair trade practices, or restraints of trade). However, a person who has been convicted of a felony in a court of any state or in a court of the United States and (i) who is later pardoned, or (ii) whose firearms rights have been restored pursuant to G.S. 14-415.4 , may obtain a permit, if the purchase or receipt of a pistol permitted in this Article does not violate a condition of the pardon or restoration of firearms rights.
    2. One who is a fugitive from justice.
    3. One who is an unlawful user of or addicted to marijuana or any depressant, stimulant, or narcotic drug (as defined in 21 U.S.C. § 802).
    4. One who has been adjudicated mentally incompetent or has been committed to any mental institution.
    5. One who is an alien illegally or unlawfully in the United States.
    6. One who has been discharged from the Armed Forces of the United States under dishonorable conditions.
    7. One who, having been a citizen of the United States, has renounced his or her citizenship.
    8. One who is subject to a court order that:
      1. Was issued after a hearing of which the person received actual notice, and at which the person had an opportunity to participate;
      2. Restrains the person from harassing, stalking, or threatening an intimate partner of the person or child of the intimate partner of the person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
      3. Includes a finding that the person represents a credible threat to the physical safety of the intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury. (c1) Repealed by Session Laws 2015-195, s. 11(c), effective August 5, 2015.
  4. Nothing in this Article shall apply to officers authorized by law to carry firearms if the officers identify themselves to the vendor or donor as being officers authorized by law to carry firearms and provide any of the following:
    1. A letter signed by the officer’s supervisor or superior officer stating that the officer is authorized by law to carry a firearm.
    2. A current photographic identification card issued by the officer’s employer.
    3. A current photographic identification card issued by a State agency that identifies the individual as a law enforcement officer or a probation and parole officer certified by the State of North Carolina.
    4. A current identification card issued by the officer’s employer and another form of current photographic identification.
  5. The sheriff shall charge for the sheriff’s services upon receipt of an application a fee of five dollars ($5.00) for each permit requested. There shall be no limit as to the number or frequency of permit applications and no other costs or fees other than provided in this subsection shall be charged for the permit, including, but not limited to, any costs for investigation, processing, or medical background checks by the sheriff or others providing records to the sheriff.

    (e1) The application for a permit shall be on a form created by the State Bureau of Investigation in consultation with the North Carolina Sheriffs’ Association. This application shall be used by all sheriffs and must be provided by the sheriff both electronically and in paper form. Only the following shall be required to be submitted by an applicant for a permit:

    1. The permit application developed pursuant to this subsection.
    2. Five dollars for each permit requested pursuant to subsection (e) of this section.
    3. A government issued identification confirming the identity of the applicant.
    4. Proof of residency.
    5. A signed release, in a form to be prescribed by the Administrative Office of the Court, that authorizes and requires disclosure to the sheriff of any court orders concerning the mental health or capacity of the applicant to be used for the sole purpose of determining whether the applicant is disqualified to receive a permit pursuant to this section.

      No additional document or evidence shall be required from any applicant.

  6. Each applicant for a license or permit shall be informed by the sheriff within 14 days of the date of the application whether the license or permit will be granted or denied and, if granted, the license or permit shall be immediately issued to the applicant.
  7. An applicant shall not be ineligible to receive a permit under subdivision (c)(4) of this section because of involuntary commitment to mental health services if the individual’s rights have been restored under G.S. 14-409.42 .
  8. The sheriff shall revoke any permit upon the occurrence of any event or condition subsequent to the issuance of the permit, or the applicant’s subsequent inability to meet a requirement under this Article, which would have resulted in a denial of the application submitted to obtain the permit if the event, condition, or the applicant’s current inability to meet a statutory requirement had existed at the time of the application and prior to the issuance of the permit. The following procedures apply to a revocation:
    1. The sheriff shall provide written notice to the permittee, pursuant to the provisions of G.S. 1A-1 , Rule 4(j), that the permit is revoked upon the service of the notice. The notice shall provide the permittee with information on the process to appeal the revocation.
    2. Upon receipt of the written notice of revocation, the permittee shall surrender the permit to the sheriff. Any law enforcement officer serving the notice is authorized to take immediate possession of the permit from the permittee. If the notice is served by means other than by a law enforcement officer, the permittee shall surrender the permit to the sheriff no later than 48 hours after service of the notice.
    3. The sheriff shall insure that the list of permits which have been revoked is immediately updated so that any potential transferor calling to check the validity of the permit will be informed of the revocation.
    4. A permittee may appeal the revocation of a permit pursuant to this subsection by petitioning a district court judge of the district in which the permittee resides.
    5. Any person who willfully fails to surrender a permit upon notice of revocation shall be guilty of a Class 2 misdemeanor.
  9. A person or entity shall promptly disclose to the sheriff, upon presentation by the applicant or sheriff of an original or photocopied release form described in subdivision (5) of subsection (e1) of this section, any court orders concerning the mental health or capacity of the applicant who signed the release form.

History. 1919, c. 197, s. 3; C.S., s. 5108; 1959, c. 1073, s. 2; 1969, c. 73; 1981 (Reg. Sess., 1982), c. 1395, s. 1; 1987, c. 518, s. 1; 1995, c. 487, s. 2; 2006-39, s. 1; 2006-264, s. 4; 2008-210, s. 3(a); 2009-570, s. 7; 2010-108, s. 4; 2011-2, s. 1; 2011-56, s. 2; 2011-183, s. 13; 2011-268, s. 10; 2013-369, s. 17.2(a); 2013-389, s. 2; 2014-115, s. 23.5(a); 2015-195, ss. 10(d), 11(c), (f), (j); 2016-77, s. 9(a).

Local Modification.

Caldwell: 1975, c. 478; Craven: 1981 (Reg. Sess., 1982), c. 1200; Lee: 1975, c. 377; Wake: 1979, 2nd Sess., c. 1322.

Editor’s Note.

In subdivision (c)(3), as set out above, “21 U.S.C. § 802,” was substituted for “21 U.S.C. section 802” at the direction of the Revisor of Statutes.

Session Laws 2010-108, s. 6, provides: “The Attorney General shall send a copy of this act to the United States Attorney General, the United States Department of Justice, and the federal Bureau of Alcohol, Tobacco, and Firearms for review and shall ask for a determination of the following: (i) whether a person who has his or her firearms rights restored pursuant to this act can legally purchase and possess a firearm under federal law, and (ii) whether a person who falls under the exception to the State Felony Firearms Act regarding antitrust violations, unfair trade practices, or restraints of trade as enacted by this act can legally purchase and possess a firearm under federal law. The Attorney General shall report the response to the Joint Legislative Corrections, Crime Control and Juvenile Justice Oversight Committee.”

Effect of Amendments.

Session Laws 2006-39, s. 1, as amended by Session Laws 2006-264, s. 4, effective June 30, 2006, made minor stylistic changes in subsection (a); in subdivision (a)(1), substituted “Verified, before the issuance of a permit” for “Verified” in the first sentence, added “and background” following “The sheriff shall determine the criminal” and inserted “by conducting a check through the National Instant Criminal Background Check System (NICS)” in the last sentence.

Session Laws 2008-210, s. 3(a), effective December 1, 2008, added subsection (g).

Session Laws 2009-570, s. 7, effective August 28, 2009, substituted “subdivision (c)(4)” for “subsection (4) of subsection (c)” in subsection (g).

Session Laws 2010-108, s. 4, as amended by Session Laws 2011-2, s. 1, effective February 1, 2011, in subdivision (c)(1), added the (i) designation, “or (ii) whose firearms rights have been restored pursuant to G.S. 14-415.4 ,” and “or restoration of firearms rights.”

Session Laws 2011-56, s. 2, effective April 28, 2011, deleted “or crossbow” following “pistol” in the last sentence of subdivision (c)(1).

Session Laws 2011-183, s. 13, effective June 20, 2011, substituted “Armed Forces of the United States” for “armed forces” in subdivision (c)(6).

Session Laws 2011-268, s. 10, effective December 1, 2011, substituted “and provide any of the following” for “and state that the purpose for the purchase of firearms is directly related to the law officers’ official duties” in the introductory paragraph of subsection (d); and added subdivisions (d)(1) through (d)(4). For applicability, see Editor’s Note.

Session Laws 2013-369, s. 17.2(a), deleted “license or” preceding “permit” in subsections (a), (b), and (e); added the second sentence in the first sentence of subsections (b) and (e); added subsections (b1), (c1), and (h); and substituted “14 days” for “30 days” in subsection (f). Subsection (c1) is effective July 1, 2014, the remaining amendments are effective October 1, 2013. For effective date, see Editor’s notes.

Session Laws 2013-389, s. 2, effective August 1, 2013, in subsection (e), substituted “receipt of an application” for “issuing the license or permit,” and added “for each permit requested.” For applicability, see Editor’s note.

Session Laws 2014-115, s.23.5(a), in subsection (c1), in the first sentence deleted “not later than 48 hours” following “holidays”, substituted “the clerk of superior court shall determine which information can practicably be transmitted to the National Instant Criminal Background Check System (NICS) and shall transmit that information to NICS within 48 hours of that determination” for “the clerk of superior court shall cause a record of the determination or finding to be transmitted to the National Instant Criminal Background Check System (NICS)”, substituted “information” for “record” in the second sentence, and deleted the last sentence, which pertained to the previous time limit for transmittal. See Editor’s note for effective date.

Session Laws 2015-195, s. 10(d), effective December 1, 2015, added the last sentence of subdivision (a)(2); substituted “superior court in” for “chief judge of the district court for” in the third sentence of subsection (b); and added subsections (e1) and (i). For applicability, see editor’s note.

Session Laws 2015-195, s. (11)(c), (j), effective August 5, 2015, deleted former subsection (c1), which related to transmittal of information to NICS relevant to disqualifying conditions; and substituted “G.S. 14-409.42” for “G.S. 122C-54.1” at the end of subsection (g). For applicability, see editor’s note.

Session Laws 2015-195, s. 11(f), effective October 1, 2015, inserted “and such application must be provided by the sheriff electronically” in the first sentence of subsection (a). For applicability, see editor’s note.

Session Laws 2016-77, s. 9(a), effective July 30, 2016, added “or a probation and parole officer” preceding “certified by the State of North Carolina” in subdivision (d)(3).

Legal Periodicals.

For comment, “Misfire: How the North Carolina Pistol Purchase Permit System Misses the Mark of Constitutional Muster and Effectiveness,” see 99 N.C.L. Rev. 529 (2021).

OPINIONS OF ATTORNEY GENERAL

Issuance of Pistol Permits to 18, 19 and 20 Year Olds. — See opinion of Attorney General to Mr. Isaac T. Avery, Jr., 41 N.C.A.G. 465 (1971), issued under this section as it read prior to the 1981 (Reg. Sess., 1982) amendment.

More Than One Permit Allowed. — See opinion of Attorney General to Mr. Leroy Reavis, 41 N.C.A.G. 415 (1971); issued under this section as it read prior to the 1981 (Reg. Sess., 1982) amendment.

Board of County Commissioners Without Authority to Increase Fee for Issuance of Permit. — See opinion of Attorney General to Mr. John T. Page, Jr., Attorney for Richmond County Board of Commissioners, 46 N.C.A.G. 134 (1976); issued under this section as it read prior to the 1981 (Reg. Sess., 1982) amendment.

Legal Periodicals.

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

For article, “Where Gutenberg Meets Guns: The Liberator, 3D-Printed Weapons, and the First Amendment,” see 92 N.C. L. Rev. 1393 (2014).

CASE NOTES

Convicted Felon. —

Irregardless of whether a criminal defendant pleads guilty or no contest, where a felony conviction is ultimately adjudicated, the defendant is thereafter a convicted felon for the purposes of G.S. 14-404 and prohibited from obtaining a hand gun. Friend v. State, 169 N.C. App. 99, 609 S.E.2d 473, 2005 N.C. App. LEXIS 535 (2005).

Involuntarily Committed Applicant. —

G.S. 14-404(c)(4) did not support the denial of a gun permit application to an applicant since the G.S. 122C-261(e) , 122C-262 122C-263, 122C-266, and 122C-268 requirements were not met, even though the applicant was taken for an involuntary psychiatric examination when the applicant was 21 years old; neither inpatient nor outpatient commitment was recommended. Waldron v. Batten, 191 N.C. App. 237, 662 S.E.2d 568, 2008 N.C. App. LEXIS 1193 (2008).

§ 14-405. Record of permits kept by sheriff; confidentiality of permit information.

  1. The sheriff shall keep a record of all permits issued under this article, including the name, date, place of residence, age, former place of residence, etc., of each such person, firm, or corporation to whom or which a permit is issued. The record shall include the date that a permit was revoked, the date that the permittee received notice of the revocation, whether the permit was surrendered, and the reason for the revocation.
  2. The records maintained by the sheriff pursuant to this section are confidential and are not a public record under G.S. 132-1 ; provided, however, that the sheriff shall make the records available upon request to any federal, State, and local law enforcement agencies and shall also make the records available to the court if the records are required to be released pursuant to a court order. Any application to a court for release of the list of permit holders and permit application information shall be by a petition to the chief judge of the district court for the district in which the person seeking the information resides.

History. 1919, c. 197, s. 4; C.S., s. 5109; 1959, c. 1073, s. 2; 2013-369, s. 17.4.

Effect of Amendments.

Session Laws 2013-369, s. 17.4, effective October 1, 2013, added “confidentiality of permit information” in the section heading; redesignated the former provisions of this section as present subsection (a); in subsection (a), deleted “book, to be provided by the board of commissioners of each county, in which he shall keep a” preceding “record of all” and “licenses or” thereafter, and substituted “permit” for “license or permit” in the first sentence, and added the second sentence; and added subsection (b). For applicability, see Editor’s note.

§ 14-406. Dealer to keep record of sales; confidentiality of records.

  1. Every dealer in pistols and other weapons mentioned in this Article shall keep an accurate record of all sales thereof, including the name, place of residence, date of sale, etc., of each person, firm, or corporation to whom or which such sales are made. The records maintained by a dealer pursuant to this section are confidential and are not a public record under G.S. 132-1 ; provided, however, that the dealer shall make the records available upon request to all State and local law enforcement agencies.
  2. Repealed by Session Laws 2011-56, s. 3, effective April 28, 2011.

History. 1919, c. 197, s. 5; C.S., s. 5110; 1987, c. 115, s. 1; 2009-6, s. 3; 2011-56, s. 3; 2013-369, s. 13.

Effect of Amendments.

Session Laws 2009-6, s. 3, effective March 19, 2009, designated the previously existing provisions as subsection (a), and added subsection (b).

Session Laws 2011-56, s. 3, effective April 28, 2011, repealed subsection (b), which made the section inapplicable to manufacturers of crossbows and sales from a wholesale dealer of crossbows to another wholesale dealer of crossbows or to a retail dealer of crossbows.

Session Laws 2013-369, s. 13, effective October 1, 2013, added “confidentiality of records” at the end of the section heading; and, in subsection (a), deleted “which record shall be open to the inspection of any duly constituted State, county or police officer, within this State” at the end of the first sentence, and added the second sentence. For applicability, see Editor’s note.

§ 14-406.1. [Repealed]

Repealed by Session Laws 2011-56, s. 4, effective April 28, 2011.

History. 2009-6, s. 1; Repealed by 2011-56, s. 4, effective April 28, 2011.

Editor’s Note.

Former G.S. 14-406.1 pertained to permit’s issued to manufacturer, wholesale dealer, or retail dealer of crossbows.

§ 14-407. [Repealed]

Repealed by Session Laws 1997-6, s. 1, effective March 21, 1997.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 481.

§ 14-407.1. Sale of blank cartridge pistols.

The provisions of G.S. 14-402 , 14-405, and 14-406 shall apply to the sale of pistols suitable for firing blank cartridges. The sheriffs of all the counties of this State are authorized and may in their discretion issue to any person, firm or corporation, in any such county, a license or permit to purchase or receive any pistol suitable for firing blank cartridges from any person, firm or corporation offering to sell or dispose of the same, which said permit shall be in substantially the following form:

North Carolina County I, , sheriff of said county, do hereby certify that , whose place of residence is Street in (or) in Township in County, North Carolina, having this day satisfied me that the possession of a pistol suitable for firing blank cartridges will be used only for lawful purposes, a permit is therefore given said to purchase said pistol from any person, firm or corporation authorized to dispose of the same, this day of , . Sheriff.

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The sheriff shall charge for the sheriff’s services, upon issuing such permit, a fee of fifty cents (50¢).

History. 1959, c. 1068; 1999-456, s. 59; 2006-264, s. 5.

Effect of Amendments.

Session Laws 2006-264, s. 5, effective August 27, 2006, in the introductory paragraph, substituted “G.S. 14-402, 14-405, and 14-406” for “G.S. 14-402 and 14-405 to 14-407” in the first sentence and “sheriffs” for “clerks of the superior courts” in the second sentence; substituted “sheriff” for “Clerk of the Superior Court” twice in the form; and substituted “sheriff” for “clerk” and “the sheriff’s” for “his” in the last paragraph.

§ 14-408. Violation of § 14-406 a misdemeanor.

Any person, firm, or corporation violating any of the provisions of G.S. 14-406 shall be guilty of a Class 2 misdemeanor.

History. 1919, c. 197, s. 7; C.S., s. 5112; 1969, c. 1224, s. 6; 1993, c. 539, s. 285; 1994, Ex. Sess., c. 24, s. 14(c); 1998-217, s. 3(a).

§ 14-408.1. Solicit unlawful purchase of firearm; unlawful to provide materially false information regarding legality of firearm or ammunition transfer.

  1. The following definitions apply in this section:
    1. Ammunition. — Any cartridge, shell, or projectile designed for use in a firearm.
    2. Firearm. — A handgun, shotgun, or rifle which expels a projectile by action of an explosion.
    3. Handgun. — A pistol, revolver, or other gun that has a short stock and is designed to be held and fired by the use of a single hand.
    4. Licensed dealer. — A person who is licensed pursuant to 18 U.S.C. § 923 to engage in the business of dealing in firearms.
    5. Materially false information. — Information that portrays an illegal transaction as legal or a legal transaction as illegal.
    6. Private seller. — A person who sells or offers for sale any firearm, as defined in G.S. 14-409.39 , or ammunition.
  2. Any person who knowingly solicits, persuades, encourages, or entices a licensed dealer or private seller of firearms or ammunition to transfer a firearm or ammunition under circumstances that the person knows would violate the laws of this State or the United States is guilty of a Class F felony.
  3. Any person who provides to a licensed dealer or private seller of firearms or ammunition information that the person knows to be materially false information with the intent to deceive the dealer or seller about the legality of a transfer of a firearm or ammunition is guilty of a Class F felony.
  4. Any person who willfully procures another to engage in conduct prohibited by this section shall be held accountable as a principal.
  5. This section does not apply to a law enforcement officer acting in his or her official capacity or to a person acting at the direction of the law enforcement officer.

History. 2011-268, s. 11.

Editor’s Note.

Session Laws 2011-268, s. 26, made this section effective December 1, 2011, and applicable to offenses committed on or after that date and provides in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-409. Machine guns and other like weapons.

  1. As used in this section, “machine gun” or “submachine gun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any combination of parts designed and intended for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.
  2. It shall be unlawful for any person, firm or corporation to manufacture, sell, give away, dispose of, use or possess machine guns, submachine guns, or other like weapons as defined by subsection (a) of this section: Provided, however, that this subsection shall not apply to the following:Banks, merchants, and recognized business establishments for use in their respective places of business, who shall first apply to and receive from the sheriff of the county in which said business is located, a permit to possess the said weapons for the purpose of defending the said business; officers and soldiers of the United States Army, when in discharge of their official duties, officers and soldiers of the militia when called into actual service, officers of the State, or of any county, city or town, charged with the execution of the laws of the State, when acting in the discharge of their official duties; the manufacture, use or possession of such weapons for scientific or experimental purposes when such manufacture, use or possession is lawful under federal laws and the weapon is registered with a federal agency, and when a permit to manufacture, use or possess the weapon is issued by the sheriff of the county in which the weapon is located; a person who lawfully possesses or owns a weapon as defined by subsection (a) of this section in compliance with 26 U.S.C. Chapter 53, §§ 5801-5871. Nothing in this subdivision shall limit the discretion of the sheriff in executing the paperwork required by the United States Bureau of Alcohol, Tobacco and Firearms for such person to obtain the weapon. Provided, further, that any bona fide resident of this State who now owns a machine gun used in former wars, as a relic or souvenir, may retain and keep same as his or her property without violating the provisions of this section upon his reporting said ownership to the sheriff of the county in which said person lives.
  3. Any person violating any of the provisions of this section shall be guilty of a Class I felony.

History. 1933, c. 261, s. 1; 1959, c. 1073, s. 2; 1965, c. 1200; 1989, c. 680, s. 1; 1993, c. 539, s. 1243; 1994, Ex. Sess., c. 24, s. 14(c); 1999-456, s. 33(b); 2011-268, s. 9.

Editor’s Note.

Session Laws 2011-268, which, in s. 9, amended the last paragraph of subsection (b) by adding “a person who lawfully possesses or owns a weapon as defined by subsection (a) of this section in compliance with 26 U.S.C. Chapter 53, §§ 5801-5871” in the first sentence, and adding the second sentence, provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2011-268, s. 9, effective December 1, 2011, in the last paragraph of subsection (b), added “a person who lawfully possesses or owns a weapon as defined by subsection (a) of this section in compliance with 26 U.S.C. Chapter 53, §§ 5801-5871” in the first sentence, and added the second sentence. For applicability, see Editor’s Note.

CASE NOTES

Definitions. —

The usual and customary definitions of the words used in this section are as follows: A machine gun is defined as an automatic gun using small-arms ammunition for rapid continuous firing; a submachine gun as a lightweight automatic or semiautomatic portable firearm fired from the shoulder or hip; a carbine as a light automatic or semiautomatic military rifle; and an automatic rifle as a rifle capable commonly of either semiautomatic or full automatic fire and designed to be fired without a mount. State v. Lee, 277 N.C. 242 , 176 S.E.2d 772, 1970 N.C. LEXIS 571 (1970).

“Automatic”. —

The word “automatic” as used in connection with a firearm is one using either gas pressure or force of recoil and mechanical spring action for repeatedly ejecting the empty cartridge shell, introducing a new cartridge and firing it. State v. Lee, 277 N.C. 242 , 176 S.E.2d 772, 1970 N.C. LEXIS 571 (1970).

In ordinary usage the word “automatic” is used to describe both automatic and semiautomatic weapons. State v. Lee, 277 N.C. 242 , 176 S.E.2d 772, 1970 N.C. LEXIS 571 (1970).

A machine gun is automatic. State v. Lee, 277 N.C. 242 , 176 S.E.2d 772, 1970 N.C. LEXIS 571 (1970).

A submachine gun can be automatic or semiautomatic. State v. Lee, 277 N.C. 242 , 176 S.E.2d 772, 1970 N.C. LEXIS 571 (1970).

Section Excludes Weapons Which Shoot Less Than 31 Times. —

The General Assembly intended to include within the prohibition of this section all weapons either automatic or semiautomatic which shoot 31 times or more and to exclude such weapons which shoot less than 31 times. State v. Lee, 277 N.C. 242 , 176 S.E.2d 772, 1970 N.C. LEXIS 571 (1970).

This section has a proviso which excludes automatic shotguns and pistols or other automatic weapons that shoot less than 31 shots. Giving the usual and customary meaning to the word “automatic,” the proviso would exclude automatic weapons or semiautomatic weapons which shoot less than 31 shots. State v. Lee, 277 N.C. 242 , 176 S.E.2d 772, 1970 N.C. LEXIS 571 (1970).

Article 53. Sale of Weapons in Certain Other Counties. [Repealed]

§§ 14-409.1 through 14-409.9. [Repealed]

Repealed by Session Laws 1995, c. 487, s. 4.

Article 53A. Other Firearms.

§ 14-409.10. Purchase of rifles and shotguns out of State.

Unless otherwise prohibited by law, a citizen of this State may purchase a firearm in another state if the citizen undergoes a background check that satisfies the law of the state of purchase and that includes an inquiry of the National Instant Background Check System.

History. 1969, c. 101, s. 1; 2011-268, s. 12.

Editor’s Note.

Session Laws 2011-268, which, in s. 12, rewrote the section, provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2011-268, s. 12, effective December 1, 2011, and applicable to offenses committed on or after that date, rewrote the section, which formerly read: “It shall be lawful for citizens of this State to purchase rifles and shotguns and ammunition therefor in states contiguous to this State.”

§ 14-409.11. “Antique firearm” defined.

  1. The term “antique firearm” means any of the following:
    1. Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured on or before 1898.
    2. Any replica of any firearm described in subdivision (1) of this subsection if the replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition.
    3. Any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder substitute, and which cannot use fixed ammunition.
  2. For purposes of this section, the term “antique firearm” shall not include any weapon which:
    1. Incorporates a firearm frame or receiver.
    2. Is converted into a muzzle loading weapon.
    3. Is a muzzle loading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

History. 1969, c. 101, s. 2; 2006-259, s. 7(a).

Effect of Amendments.

Session Laws 2006-259, s. 7(a), effective August 23, 2006, rewrote the section.

Legal Periodicals.

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

§ 14-409.12. “Historic edged weapons” defined.

The term “historic edged weapon” means any bayonet, trench knife, sword or dagger manufactured during or prior to World War II but in no event later than January 1, 1946.

History. 1971, c. 133, s. 1.

§§ 14-409.13 through 14-409.38.

Reserved for future codification purposes.

Article 53B. Firearm Regulation.

§ 14-409.39. Definitions.

The following definitions apply in this Article:

  1. Dealer. — Any person licensed as a dealer pursuant to 18 U.S.C. § 921, et seq., or G.S. 105-80 .
  2. Firearm. — A handgun, shotgun, or rifle which expels a projectile by action of an explosion.
  3. Handgun. — A pistol, revolver, or other gun that has a short stock and is designed to be held and fired by the use of a single hand.

History. 1995 (Reg. Sess., 1996), c. 727, s. 1.

Editor’s Note.

The number of this Article was assigned by the Revisor of Statutes, the number in Session Laws 1995 (Reg. Sess., 1996), c. 727, s. 1 having been 53C.

CASE NOTES

Description of Weapon as Revolver Sufficient to Show it Was a Firearm. —

Fact that the indictment alleged that the victim was robbed with the threatened use of a revolver, while the evidence presented and the jury instructions described the weapon as a pistol, gun, or firearm, did not amount to a fatal variance between the indictment and the evidence, because G.S. 14-409.39 indicates that a revolver is a handgun and a handgun is included in the definition of a firearm; thus, the level of specificity in the indictment was sufficient. State v. Hussey, 194 N.C. App. 516, 669 S.E.2d 864, 2008 N.C. App. LEXIS 2236 (2008).

Evidence Sufficient to Support Conviction. —

In a case in which defendant was convicted of discharging a firearm into occupied property, she argued unsuccessfully that there was insufficient evidence to support the firearm conviction because the State failed to present evidence that the firearm discharged by defendant met the requisite velocity specifications set forth in G.S. 14-34.1(a). Defendant had discharged a shotgun, and the most reasonable interpretation was that all firearms were implicated in the statute, but only certain barreled weapons were included—those with a muzzle velocity of at least 600 feet per second; the legislature included the traditional firearm in the statute, but further included other barreled weapons that have a propensity to penetrate a structure and injure occupants. State v. Small, 201 N.C. App. 331, 689 S.E.2d 444, 2009 N.C. App. LEXIS 2233 (2009).

§ 14-409.40. Statewide uniformity of local regulation.

  1. It is declared by the General Assembly that the regulation of firearms is properly an issue of general, statewide concern, and that the entire field of regulation of firearms is preempted from regulation by local governments except as provided by this section.

    (a1) The General Assembly further declares that the lawful design, marketing, manufacture, distribution, sale, or transfer of firearms or ammunition to the public is not an unreasonably dangerous activity and does not constitute a nuisance per se and furthermore, that it is the unlawful use of firearms and ammunition, rather than their lawful design, marketing, manufacture, distribution, sale, or transfer that is the proximate cause of injuries arising from their unlawful use. This subsection applies only to causes of action brought under subsection (g) of this section.

  2. Unless otherwise permitted by statute, no county or municipality, by ordinance, resolution, or other enactment, shall regulate in any manner the possession, ownership, storage, transfer, sale, purchase, licensing, taxation, manufacture, transportation, or registration of firearms, firearms ammunition, components of firearms, dealers in firearms, or dealers in handgun components or parts.
  3. Notwithstanding subsection (b) of this section, a county or municipality, by zoning or other ordinance, may regulate or prohibit the sale of firearms at a location only if there is a lawful, general, similar regulation or prohibition of commercial activities at that location. Nothing in this subsection shall restrict the right of a county or municipality to adopt a general zoning plan that prohibits any commercial activity within a fixed distance of a school or other educational institution except with a special use permit issued for a commercial activity found not to pose a danger to the health, safety, or general welfare of persons attending the school or educational institution within the fixed distance.
  4. No county or municipality, by zoning or other ordinance, shall regulate in any manner firearms shows with regulations more stringent than those applying to shows of other types of items.
  5. A county or municipality may regulate the transport, carrying, or possession of firearms by employees of the local unit of government in the course of their employment with that local unit of government.
  6. Nothing contained in this section prohibits municipalities or counties from application of their authority under G.S. 153A-129 , 160A-189, 14-269, 14-269.2, 14-269.3, 14-269.4, 14-277.2, 14-415.11, 14-415.23, including prohibiting the possession of firearms in public-owned buildings, on the grounds or parking areas of those buildings, or in public parks or recreation areas, except nothing in this subsection shall prohibit a person from storing a firearm within a motor vehicle while the vehicle is on these grounds or areas. Nothing contained in this section prohibits municipalities or counties from exercising powers provided by law in states of emergency declared under Article 1A of Chapter 166A of the General Statutes.
  7. The authority to bring suit and the right to recover against any firearms or ammunition marketer, manufacturer, distributor, dealer, seller, or trade association by or on behalf of any governmental unit, created by or pursuant to an act of the General Assembly or the Constitution, or any department, agency, or authority thereof, for damages, abatement, injunctive relief, or any other remedy resulting from or relating to the lawful design, marketing, manufacture, distribution, sale, or transfer of firearms or ammunition to the public is reserved exclusively to the State. Any action brought by the State pursuant to this section shall be brought by the Attorney General on behalf of the State. This section shall not prohibit a political subdivision or local governmental unit from bringing an action against a firearms or ammunition marketer, manufacturer, distributor, dealer, seller, or trade association for breach of contract or warranty for defect of materials or workmanship as to firearms or ammunition purchased by the political subdivision or local governmental unit.
  8. A person adversely affected by any ordinance, rule, or regulation promulgated or caused to be enforced by any county or municipality in violation of this section may bring an action for declaratory and injunctive relief and for actual damages arising from the violation. The court shall award the prevailing party in an action brought under this subsection reasonable attorneys’ fees and court costs as authorized by law.

History. 1995 (Reg. Sess., 1996), c. 727, s. 1; 2002-77, s. 1; 2012-12, s. 2(z); 2015-195, s. 12.

Editor’s Note.

Session Laws 2015-195, s. 18, made the amendment to this section by Session Laws 2015-195, s. 12, applicable to violations occurring on or after December 1, 2015, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2012-12, s. 2(z), effective October 1, 2012, substituted “in states of emergency declared under Article 1A of Chapter 166A of the General Statutes” for “in declared states of emergency under Article 36A of this Chapter” in subsection (f).

Session Laws 2015-195, s. 12, effective December 1, 2015, inserted “taxation, manufacture, transportation,” in subsection (b); and added subsection (h). For applicability, see editor’s note.

§ 53B. Chief law enforcement officer certification; certain firearms.

  1. Definitions. — The following definitions apply in this section:
    1. Certification. — The participation and assent of the chief law enforcement officer necessary under federal law for the approval of the application to transfer or make a firearm.
    2. Chief law enforcement officer. — Any official that the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives, or any successor agency, has identified by regulation or otherwise as eligible to provide any required certification for the transfer or making of a firearm.
    3. Firearm. — Any firearm that meets the definition of firearm in 26 U.S.C. § 5845.
  2. When a chief law enforcement officer’s certification is required by federal law or regulation for the transfer or making of a firearm, the chief law enforcement officer shall, within 15 days of receipt of a request for certification, provide the certification if the applicant is not prohibited by State or federal law from receiving or possessing the firearm and is not the subject of a proceeding that could result in the applicant being prohibited by State or federal law from receiving or possessing the firearm. If the chief law enforcement officer is unable to make a certification as required by this section, the chief law enforcement officer shall provide the applicant with a written notification of the denial and the reason for the denial.Nothing in this section shall require a chief law enforcement officer to make a certification the chief law enforcement officer knows to be untrue, but the chief law enforcement officer may not refuse to provide certification based on a generalized objection to private persons or entities making, possessing, or receiving firearms or any certain type of firearm the possession of which is not prohibited by law.
  3. An applicant whose request for certification is denied may appeal the decision of the chief law enforcement officer to the district court of the district in which the request for certification was made. The court shall make a de novo review of the chief law enforcement officer’s decision to deny the certification. If the court finds that the applicant is not prohibited by State or federal law from receiving or possessing the firearm, is not the subject of a proceeding that could result in the applicant being prohibited by State or federal law from receiving or possessing the firearm, and that no substantial evidence supports the chief law enforcement officer’s determination that the chief law enforcement officer cannot truthfully make the certification, the court shall order the chief law enforcement officer to issue the certification and award court costs and reasonable attorneys’ fees to the applicant.
  4. Chief law enforcement officers and their employees who act in good faith are immune from liability arising from any act or omission in making a certification as required by this section.

History. 2015-195, s. 13.

Editor’s Note.

Session Laws 2015-195, s. 18, made this section effective July 1, 2015, and provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

§ 14-409.42. Restoration process to remove mental commitment bar.

  1. Any individual over the age of 18 may petition for the removal of the disabilities pursuant to 18 U.S.C. § 922(d)(4) and (g)(4), G.S. 14-415.3 , and G.S. 14-415.12 arising out of a determination or finding required to be transmitted to the National Instant Criminal Background Check System by subdivisions (1) through (6) of subsection (a) of G.S. 14-409.43. The individual may file the petition with a district court judge upon the expiration of any current inpatient or outpatient commitment.
  2. The petition must be filed in the district court of the county where the respondent was the subject of the most recent judicial determination or finding or in the district court of the county of the petitioner’s residence. The clerk of court upon receipt of the petition shall schedule a hearing using the regularly scheduled commitment court time and provide notice of the hearing to the petitioner and the attorney who represented the State in the underlying case, or that attorney’s successor. Copies of the petition must be served on the director of the relevant inpatient or outpatient treatment facility and the district attorney in the petitioner’s current county of residence.
  3. The burden is on the petitioner to establish by a preponderance of the evidence that the petitioner will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. The district attorney shall present any and all relevant information to the contrary. For these purposes, the district attorney may access and use any and all mental health records, juvenile records, and criminal history of the petitioner wherever maintained. The applicant must sign a release for the district attorney to receive any mental health records of the applicant. This hearing shall be closed to the public, unless the court finds that the public interest would be better served by conducting the hearing in public. If the court determines the hearing should be open to the public, upon motion by the petitioner, the court may allow for the in camera inspection of any mental health records. The court may allow the use of the record but shall restrict it from public disclosure, unless it finds that the public interest would be better served by making the record public. The district court shall enter an order that the petitioner is or is not likely to act in a manner dangerous to public safety and that the granting of the relief would or would not be contrary to the public interest. The court shall include in its order the specific findings of fact on which it bases its decision. In making its determination, the court shall consider the circumstances regarding the firearm disabilities from which relief is sought, the petitioner’s mental health and criminal history records, the petitioner’s reputation, developed at a minimum through character witness statements, testimony, or other character evidence, and any changes in the petitioner’s condition or circumstances since the original determination or finding relevant to the relief sought. The decision of the district court may be appealed to the superior court for a hearing de novo. After a denial by the superior court, the applicant must wait a minimum of one year before reapplying. Attorneys designated by the Attorney General shall be available to represent the State, or assist in the representation of the State, in a restoration proceeding when requested to do so by a district attorney and approved by the Attorney General. An attorney so designated shall have all the powers of the district attorney under this section.
  4. Upon a judicial determination to grant a petition under this section, the clerk of superior court in the county where the petition was granted shall forward the order to the National Instant Criminal Background Check System (NICS) for updating of the respondent’s record.

History. 2008-210, s. 2; 2013-369, s. 9; 2015-195, s. 11(b), (m).

Editor’s Note.

This section was enacted as G.S. 122C-54.1 and was recodified as G.S. 14-409.42 by Session Laws 2015-195, s. 11(b), effective August 5, 2015.

Session Laws 2015-195, s. 18, provides in part: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2015-195, s. 11(m), effective January 1, 2016, substituted “of subsection (a) of G.S. 14-409.43” for “of subsection (d1) of G.S. 122C-54 ” in the first sentence of subsection (a).

§ 53B. Reporting of certain disqualifiers to the National Instant Criminal Background Check System (NICS).

  1. Excluding Saturdays, Sundays, and holidays, not later than 48 hours after receiving notice of any of the following judicial determinations or findings, the clerk of superior court in the county where the determination or finding was made shall work through the Administrative Office of the Courts to cause a record of the determination or finding to be transmitted to the National Instant Criminal Background Check System (NICS):
    1. A determination that an individual shall be involuntarily committed to a facility for inpatient mental health treatment upon a finding that the individual is mentally ill and a danger to self or others.
    2. A determination that an individual shall be involuntarily committed to a facility for outpatient mental health treatment upon a finding that the individual is mentally ill and, based on the individual’s treatment history, in need of treatment in order to prevent further disability or deterioration that would predictably result in a danger to self or others.
    3. A determination that an individual shall be involuntarily committed to a facility for substance abuse treatment upon a finding that the individual is a substance abuser and a danger to self or others.
    4. A finding that an individual is not guilty by reason of insanity.
    5. A finding that an individual is mentally incompetent to proceed to criminal trial.
    6. A finding that an individual lacks the capacity to manage the individual’s own affairs due to marked subnormal intelligence or mental illness, incompetency, condition, or disease.
    7. A determination to grant a petition to an individual for the removal of disabilities pursuant to G.S. 14-409.42 or any applicable federal law.The 48-hour period for transmitting a record of a judicial determination or finding to the NICS under subsection (a) of this section begins upon receipt by the clerk of a copy of the judicial determination or finding. The Administrative Office of the Courts shall adopt rules to require clerks of court to transmit information to the NICS in a uniform manner.
  2. Excluding Saturdays, Sundays, and holidays, not later than 48 hours after receiving notice of the issuance of a felony warrant, indictment, criminal summons, or order for arrest, the Administrative Office of the Courts shall transmit any unserved felony warrants, indictments, criminal summons, or order for arrests to the NCIC (or National Instant Criminal Background Check System (NICS)).
  3. Excluding Saturdays, Sundays, and holidays, not later than 48 hours after service by the sheriff of an order issued by a judge pursuant to Chapter 50B of the General Statutes and pursuant to G.S. 50B-3(d) the sheriff shall cause a record of the order to be transmitted to the National Instant Criminal Information System.

History. 2015-195, s. 11(d).

§ 14-409.44.

Reserved for future codification purposes.

Article 53C. Sport Shooting Range Protection Act of 1997.

§ 14-409.45. Definitions.

The following definitions apply in this Article:

  1. Person. — An individual, proprietorship, partnership, corporation, club, or other legal entity.
  2. Sport shooting range or range. — An area designed and operated for the use of rifles, shotguns, pistols, silhouettes, skeet, trap, black powder, or any other similar sport shooting.
  3. Substantial change in use. — The current primary use of the range no longer represents the activity previously engaged in at the range.

History. 1997-465, s. 1.

§ 14-409.46. Sport shooting range protection.

  1. Notwithstanding any other provision of law, a person who owns, operates, or uses a sport shooting range in this State shall not be subject to civil liability or criminal prosecution in any matter relating to noise or noise pollution resulting from the operation or use of the range if the range is in compliance with any noise control laws or ordinances that applied to the range and its operation at the time the range began operation.
  2. A person who owns, operates, or uses a sport shooting range is not subject to an action for nuisance on the basis of noise or noise pollution, and a State court shall not enjoin the use or operation of a range on the basis of noise or noise pollution, if the range is in compliance with any noise control laws or ordinances that applied to the range and its operation at the time the range began operation.
  3. Rules adopted by any State department or agency for limiting levels of noise in terms of decibel level that may occur in the outdoor atmosphere shall not apply to a sport shooting range that was in operation prior to the adoption of the rule.
  4. A person who acquires title to real property adversely affected by the use of property with a permanently located and improved sport shooting range constructed and initially operated prior to the time the person acquires title shall not maintain a nuisance action on the basis of noise or noise pollution against the person who owns the range to restrain, enjoin, or impede the use of the range. If there is a substantial change in use of the range after the person acquires title, the person may maintain a nuisance action if the action is brought within one year of the date of a substantial change in use. This section does not prohibit actions for negligence or recklessness in the operation of the range or by a person using the range.
  5. A sport shooting range that is operated and is not in violation of existing law at the time of the enactment of an ordinance shall be permitted to continue in operation even if the operation of the sport shooting range at a later date does not conform to the new ordinance or an amendment to an existing ordinance, provided there has been no substantial change in use.

History. 1997-465, s. 1; 2015-195, s. 5(a).

Editor’s Note.

Session Laws 2015-195, s. 18, made the amendment to this section by Session Laws 2015-195, s. 5(a), effective July 1, 2015, but not applicable to pending litigation, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2015-195, s. 5(a), effective July 1, 2015, substituted “if the range is in compliance” for “if the range was in existence at least three years prior to the effective date of this Article and the range was in compliance” in subsections (a) and (b); substituted “shooting range that was in operation prior to the adoption of the rule” for “shooting range exempted from liability under this Article” in subsection (c); and deleted “and was in existence at least three years prior to the effective date of this Article” following “the enactment of an ordinance” in subsection (e). For applicability, see editor’s note.

§ 14-409.47. Application of Article.

Except as otherwise provided in this Article, this Article does not prohibit a local government from regulating the location and construction of a sport shooting range after September 1, 1997.

History. 1997-465, s. 1; 2015-195, s. 5(b).

Editor’s Note.

Session Laws 2015-195, s. 18, made the amendment to this section by Session Laws 2015-195, s. 5(b), effective July 1, 2015, but not applicable to pending litigation, and further provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2015-195, s. 5(b), effective July 1, 2015, substituted “September 1, 1997” for “the effective date of this Article” at the end of the section. For applicability, see editor’s note.

Article 54. Sale, etc., of Pyrotechnics.

§ 14-410. Manufacture, sale and use of pyrotechnics prohibited; exceptions; license required; sale to persons under the age of 16 prohibited.

  1. Except as otherwise provided in this section, it shall be unlawful for any individual, firm, partnership or corporation to manufacture, purchase, sell, deal in, transport, possess, receive, advertise, use, handle, exhibit, or discharge any pyrotechnics of any description whatsoever within the State of North Carolina. (a1) It shall be permissible for pyrotechnics to be exhibited, used, handled, manufactured, or discharged within the State, provided all of the following apply:
    1. The exhibition, use, or discharge is at a concert or public exhibition.
    2. All individuals who exhibit, use, handle, or discharge pyrotechnics in connection with a concert or public exhibition have completed the training and licensing required under Article 82A of Chapter 58 of the General Statutes. The display operator or proximate audience display operator, as required under Article 82A of Chapter 58 of the General Statutes, must be present at the concert or public exhibition and must personally direct all aspects of exhibiting, using, handling, or discharging the pyrotechnics. Notwithstanding this subdivision, the display operator for the University of North Carolina School of the Arts may appoint an on-site representative to supervise any performances that include a proximate audience display subsequent to the opening performance, provided that the representative (i) is a minimum of 21 years of age and (ii) is properly trained in the safe discharge of proximate audience displays.
    3. The display operator has secured written authority under G.S. 14-413 from the board of county commissioners of the county, or the city if authorized under G.S. 14-413 (a1), in which the pyrotechnics are to be exhibited, used or discharged. Written authority from the board of commissioners or city is not required under this subdivision for a concert or public exhibition provided the display operator has secured written authority from (i) The University of North Carolina or the University of North Carolina at Chapel Hill under G.S. 14-413, and pyrotechnics are exhibited on lands or buildings in Orange County owned by The University of North Carolina or the University of North Carolina at Chapel Hill, (ii) the University of North Carolina School of the Arts and pyrotechnics are exhibited on lands or in buildings owned by the State and used by the University of North Carolina School of the Arts, or (iii) The University of North Carolina or North Carolina State University under G.S. 14-413, and pyrotechnics are exhibited on lands or buildings in Wake County owned by The University of North Carolina or North Carolina State University.

      (a2) Notwithstanding any provision of this section, it shall not be unlawful for a common carrier to receive, transport, and deliver pyrotechnics in the regular course of its business.

      (a3) The requirements of this section apply to G.S. 14-413(b) and G.S. 14-413(c).

      (a4) It shall be permissible for pyrotechnics to be exhibited, used, handled, manufactured, or discharged within the State as a special effect by a production company, as defined in G.S. 105-164.3(185), for a motion picture production, if the motion picture set is closed to the public or is separated from the public by a minimum distance of 500 feet.

      (a5) It shall be permissible for pyrotechnics to be exhibited, used, handled, manufactured, or discharged within the State for pyrotechnic or proximate audience display instruction consisting of classroom and practical skills training approved by the Office of State Fire Marshal.

  2. Notwithstanding the provisions of G.S. 14-414 , it shall be unlawful for any individual, firm, partnership, or corporation to sell pyrotechnics as defined in G.S. 14-414 (2), (3), (4)c., (5), or (6) to persons under the age of 16.
  3. The following definitions apply in this Article:
    1. Concert or public exhibition. — A fair, carnival, show of any description, or public celebration.
    2. Display operator. — An individual issued a display operator license under G.S. 58-82A-3.
    3. State Fire Marshal. — Defined in G.S. 58-80-1 .

History. 1947, c. 210, s. 1; 1993 (Reg. Sess., 1994), c. 660, s. 3; 1995, c. 475, s. 1; 2003-298, s. 2; 2007-38, s. 1; 2009-507, s. 1; 2010-22, s. 8; 2013-275, s. 1; 2015-124, s. 1.

Local Modification.

Catawba, except Town of Longview: 1983, c. 116 (Repealed May 2008 by 2007-38, s. 3); Durham: 1963, c. 745 (Repealed May 2008 by 2007-38, s. 3); Edgecombe: 1991 (Reg. Sess., 1992), c. 771, s. 1 (Repealed May 2008 by 2007-38, s. 3); Forsyth: 1983, c. 21 (Repealed May 2008 by 2007-38, s. 3); Mecklenburg: 1981, c. 117, s. 2; Moore: 2009-75, s. 3; Nash: 1991 (Reg. Sess., 1992), c. 771, s. 1 (Repealed May 2008 by 2007-38, s. 3); New Hanover: 1989, c. 178, s. 1; Pender: 1957, c. 113; Union: 1983, c. 116 (Repealed May 2008 by 2007-38, s. 3).

Editor’s Note.

Session Laws 2007-38, s. 3, provides: “Any local act granting authority to a city to grant permission or a permit for pyrotechnics to be exhibited, used or discharged at concerts or public exhibitions pursuant to G.S. 14-410 or G.S. 14-413 is repealed one year from the effective date of this act.” The local modifications for Catawba and Union (from 1983 Sess. Laws, c. 21, as amended by 1983 Sess. Laws, c. 116), Durham (from 1963 Sess. Laws, c. 745), Edgecombe and Nash (from 1991 Sess. Laws, c. 771), and Forsyth (from 1983 Sess. Laws, c. 21) have been deleted as a result.

Session Laws 2019-169, s. 3.1(c), provides, in part, that: “The Revisor of Statutes is authorized to renumber the subdivisions of G.S. 105-164.3 to ensure that the subdivisions are listed in alphabetical order and in a manner that reduces the current use of alphanumeric designations, to make conforming changes, and to reserve sufficient space to accommodate Session future additions to the statutory section.” At the direction of the Revisor of Statutes, a reference was conformed in subsection (a4).

Effect of Amendments.

Session Laws 2009-507, s. 1, effective February 1, 2010, and applicable to offenses committed on or after that date, inserted “permit required” in the section heading; and rewrote the section.

Session Laws 2007-38, s. 1, effective May 11, 2007, in subsection (a), inserted “concerts or” following “connection with” and “or the city if authorized under G.S. 14-413(a1)” in the first sentence, and inserted “or city” in the second sentence.

Session Laws 2010-22, s. 8, effective October 1, 2010, in subdivision (a1)(2), in the first sentence, substituted “have completed the training and licensing required under Article 82A of Chapter 58 of the General Statutes” for “have completed the training required under G.S. 58-82A-2 and are under the direct supervision and control of a display operator who holds a display operator permit issued by the State Fire Marshal under G.S. 58-82A-3,” and in the last sentence, inserted “or proximate audience display operator, as required under Article 82A of Chapter 58 of the General Statutes.”

Session Laws 2013-275, s. 1, effective July 18, 2013, substituted “license” for “permit” in the section heading and in subdivision (c)(2); added the third sentence in subdivision (a1)(2); in subdivision (a1)(3), inserted “(i)” and added “or (ii) the University of North Carolina School of the Arts and pyrotechnics are exhibited on lands or in buildings owned by the State and used by the University of North Carolina School of the Arts”; and added subsections (a4) and (a5).

Session Laws 2015-124, s. 1, effective June 29, 2015, added subdivision (a1)(3)(iii) and made related changes.

§ 14-411. Sale deemed made at site of delivery.

In case of sale or purchase of pyrotechnics, where the delivery thereof was made by a common or other carrier, the sale shall be deemed to be made in the county wherein the delivery was made by such carrier to the consignee.

History. 1947, c. 210, s. 2.

§ 14-412. Possession prima facie evidence of violation.

Possession of pyrotechnics by any person, for any purpose other than those permitted under this article, shall be prima facie evidence that such pyrotechnics are kept for the purpose of being manufactured, sold, bartered, exchanged, given away, received, furnished, otherwise disposed of, or used in violation of the provisions of this article.

History. 1947, c. 210, s. 3.

§ 14-413. Permits for use at public exhibitions.

  1. For the purpose of enforcing the provisions of this Article, the board of county commissioners of any county, or the governing board of a city authorized pursuant to subsection (a1) of this section, may issue permits for use in connection with the conduct of concerts or public exhibitions, such as fairs, carnivals, shows of all descriptions and public celebrations, but only after satisfactory evidence is produced to the effect that said pyrotechnics will be used for the aforementioned purposes and none other. Provided that no such permit shall be required for a public exhibition under any of the following circumstances:
    1. The exhibition is authorized by The University of North Carolina or the University of North Carolina at Chapel Hill and conducted on lands or in buildings in Orange County owned by The University of North Carolina or the University of North Carolina at Chapel Hill.
    2. The exhibition is authorized by the University of North Carolina School of the Arts and conducted on lands or in buildings owned by the State and used by the University of North Carolina School of the Arts.
    3. The exhibition is authorized by The University of North Carolina or North Carolina State University and conducted on lands or in buildings in Wake County owned by The University of North Carolina or North Carolina State University.

      (a1) For the purpose of enforcing the provisions of this Article, a board of county commissioners may authorize the governing body of any city in the county to issue permits pursuant to the provisions of this Article for pyrotechnics to be exhibited, used, or discharged within the corporate limits of the city for use in connection with the conduct of concerts or public exhibitions. The board of county commissioners shall adopt a resolution granting the authority to the city, and it shall remain in effect until withdrawn by the board of county commissioners adopting a subsequent resolution withdrawing the authority. If a city lies in more than one county, the board of county commissioners of each county in which the city lies must adopt an authorizing resolution. If any county in which the city lies withdraws the authority of the city to issue permits for the use of pyrotechnics, the authority of the city to issue permits for the use of pyrotechnics will end, and all counties within which the city lies must resume their authority to issue the permits.

  2. For any indoor use of pyrotechnics at a concert or public exhibition, the board of commissioners or the governing body of an authorized city may not issue any permit unless the local fire marshal or the State Fire Marshal (or in the case of The University of North  Carolina, the University of North Carolina at Chapel Hill, or North Carolina State University it may not authorize such concert or public exhibition unless the State Fire Marshal) has certified that:
    1. Adequate fire suppression will be used at the site.
    2. The structure is safe for the use of such pyrotechnics with the type of fire suppression to be used.
    3. Adequate egress from the building is available based on the size of the expected crowd.
  3. The requirements of subsection (b) of this section also apply to any city authorized to grant pyrotechnic permits by local act and to the officer delegated the power to grant such permits by local act.
  4. A board of county commissioners or the governing board of a city shall not issue a permit under this section unless the display operator provides proof of insurance in the amount of at least five hundred thousand dollars ($500,000) or the minimum amount required under the North Carolina State Building Code pursuant to G.S. 143-138(e), whichever is greater. A board of county commissioners or the governing board of a city may require proof of insurance that exceeds these minimum requirements.

History. 1947, c. 210, s. 4; 1993 (Reg. Sess., 1994), c. 660, s. 3.1; 1995, c. 509, s. 11; 2003-298, s. 1; 2007-38, s. 2; 2009-507, s. 2; 2013-275, s. 2; 2015-124, s. 2.

Local Modification.

Catawba, except Town of Longview: 1983, c. 116 (Repealed May 2008 by 2007-38, s. 3); Edgecombe: 1991 (Reg. Sess., 1992), c. 771, s. 1 (Repealed May 2008 by 2007-38, s. 3); Forsyth: 1983, c. 21 (Repealed May 2008 by 2007-38, s. 3); Mecklenburg: 1981, c. 117, s. 2; Moore: 2009-75, s. 4; Nash: 1991 (Reg. Sess., 1992), c. 771, s. 1 (Repealed May 2008 by 2007-38, s. 3); New Hanover: 1989, c. 178, s. 1; Union: 1983, c. 116 (Repealed May 2008 by 2007-38, s. 3); city of Charlotte: 1981, c. 88.

Editor’s Note.

Subsections (b) and (c) were enacted as (b1) and (b2), respectively, and were redesignated at the direction of the Revisor of Statutes.

Session Laws 2007-38, s. 3, provides: “Any local act granting authority to a city to grant permission or a permit for pyrotechnics to be exhibited, used or discharged at concerts or public exhibitions pursuant to G.S. 14-410 or G.S. 14-413 is repealed one year from the effective date of this act.” The local modifications for Catawba and Union (from 1983 Sess. Laws, c. 21, as amended by 1983 Sess. Laws, c. 116), Durham (from 1963 Sess. Laws, c. 745), Edgecombe and Nash (from 1991 Sess. Laws, c. 771), and Forsyth (from 1983 Sess. Laws, c. 21) have been deleted as a result.

Effect of Amendments.

Session Laws 2007-38, s. 2, effective May 11, 2007, inserted “or the governing board of a city authorized pursuant to subsection (a1) of this section” and substituted “celebrations” for “exhibitions” in the first sentence in subsection (a); added subsection (a1); and inserted “or the governing body of an authorized city” in subsection (b).

Session Laws 2009-507, s. 2, effective February 1, 2010, and applicable to offenses committed on or after that date, added subsection (d).

Session Laws 2013-275, s. 2, effective July 18, 2013, in subsection (a), inserted “under any of the following circumstances” at the end; in subdivision (a)(1), added “(1) The exhibition” at the beginning and inserted “in” preceding “buildings”; and added subdivision (a)(2).

Session Laws 2015-124, s. 2, effective June 29, 2015, added subdivision (a)(3); and in the introductory language of subsection (b), inserted “or North Carolina State University” and made related changes.

§ 14-414. Pyrotechnics defined; exceptions.

For the proper construction of the provisions of this Article, “pyrotechnics,” as is herein used, shall be deemed to be and include any and all kinds of fireworks and explosives, which are used for exhibitions or amusement purposes: provided, however, that nothing herein contained shall prevent the manufacture, purchase, sale, transportation, and use of explosives or signaling flares used in the course of ordinary business or industry, or shells or cartridges used as ammunition in firearms. This Article shall not apply to the sale, use, or possession of the following:

  1. Explosive caps designed to be fired in toy pistols, provided that the explosive mixture of the explosive caps shall not exceed twenty-five hundredths (.25) of a gram for each cap.
  2. Snake and glow worms composed of pressed pellets of a pyrotechnic mixture that produce a large, snake-like ash when burning.
  3. Smoke devices consisting of a tube or sphere containing a pyrotechnic mixture that produces white or colored smoke.
  4. Trick noisemakers which produce a small report designed to surprise the user and which include:
    1. A party popper, which is a small plastic or paper item containing not in excess of 16 milligrams of explosive mixture. A string protruding from the device is pulled to ignite the device, expelling paper streamers and producing a small report.
    2. A string popper, which is a small tube containing not in excess of 16 milligrams of explosive mixture with string protruding from both ends. The strings are pulled to ignite the friction-sensitive mixture, producing a small report.
    3. A snapper or drop pop, which is a small, paper-wrapped item containing no more than 16 milligrams of explosive mixture coated on small bits of sand. When dropped, the device produces a small report.
  5. Wire sparklers consisting of wire or stick coated with nonexplosive pyrotechnic mixture that produces a shower of sparks upon ignition. These items must not exceed 100 grams of mixture per item.
  6. Other sparkling devices which emit showers of sparks and sometimes a whistling or crackling effect when burning, do not detonate or explode, do not spin, are hand-held or ground-based, cannot propel themselves through the air, and contain not more than 75 grams of chemical compound per tube, or not more than a total of 200 grams if multiple tubes are used.

History. 1947, c. 210, s. 5; 1955, c. 674, s. 1; 1993, c. 437, s. 1.

OPINIONS OF ATTORNEY GENERAL

What Is Prohibited Within Definition of Pyrotechnics. — See Opinion of Attorney General to Mr. W.I. Adams, Sheriff, Wayne County, 40 N.C. Op. Att'y Gen. 174 (1970).

“Party poppers” which contain .0052 grams of explosives are not exempted from this section. See opinion of Attorney General to the Honorable Randolph Riley, District Attorney, Wake County, 54 N.C. Op. Att'y Gen. 25 (1984).

§ 14-415. Violation made misdemeanor.

Any person violating any of the provisions of this Article, except as otherwise specified in said Article, shall be guilty of a Class 2 misdemeanor, except that it is a Class 1 misdemeanor if the exhibition is indoors.

History. 1947, c. 210, s. 6; 1969, c. 1224, s. 3; 1993, c. 539, s. 288; 1994, Ex. Sess., c. 24, s. 14(c); 2003-298, s. 3.

Article 54A. The Felony Firearms Act.

§ 14-415.1. Possession of firearms, etc., by felon prohibited.

  1. It shall be unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c). For the purposes of this section, a firearm is (i) any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, or its frame or receiver, or (ii) any firearm muffler or firearm silencer. This section does not apply to an antique firearm, as defined in G.S. 14-409.11 .Every person violating the provisions of this section shall be punished as a Class G felon.
  2. Prior convictions which cause disentitlement under this section shall only include:
    1. Felony convictions in North Carolina that occur before, on, or after December 1, 1995; and
    2. Repealed by Session Laws 1995, c. 487, s. 3, effective December 1, 1995.
    3. Violations of criminal laws of other states or of the United States that occur before, on, or after December 1, 1995, and that are substantially similar to the crimes covered in subdivision (1) which are punishable where committed by imprisonment for a term exceeding one year.

      When a person is charged under this section, records of prior convictions of any offense, whether in the courts of this State, or in the courts of any other state or of the United States, shall be admissible in evidence for the purpose of proving a violation of this section. The term “conviction” is defined as a final judgment in any case in which felony punishment, or imprisonment for a term exceeding one year, as the case may be, is authorized, without regard to the plea entered or to the sentence imposed. A judgment of a conviction of the defendant or a plea of guilty by the defendant to such an offense certified to a superior court of this State from the custodian of records of any state or federal court shall be prima facie evidence of the facts so certified.

  3. The indictment charging the defendant under the terms of this section shall be separate from any indictment charging him with other offenses related to or giving rise to a charge under this section. An indictment which charges the person with violation of this section must set forth the date that the prior offense was committed, the type [of] offense and the penalty therefor, and the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the conviction or plea of guilty took place and the verdict and judgment rendered therein.
  4. This section does not apply to a person who, pursuant to the law of the jurisdiction in which the conviction occurred, has been pardoned or has had his or her firearms rights restored if such restoration of rights could also be granted under North Carolina law.
  5. This section does not apply and there is no disentitlement under this section if the felony conviction is a violation under the laws of North Carolina, another state, or the United States that pertains to antitrust violations, unfair trade practices, or restraints of trade.

History. 1971, c. 954, s. 1; 1973, c. 1196; 1975, c. 870, ss. 1, 2; 1977, c. 1105, ss. 1, 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1316, s. 47; 1981, c. 63, s. 1; c. 179, s. 14; 1989, c. 770, s. 3; 1993, c. 539, s. 1245; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 487, s. 3; c. 507, s. 19.5(k); 2004-186, s. 14.1; 2006-259, s. 7(b); 2010-108, s. 3; 2011-2, s. 1; 2011-268, s. 13.

Editor’s Note.

Session Laws 2010-108, s. 6, provides: “The Attorney General shall send a copy of this act to the United States Attorney General, the United States Department of Justice, and the federal Bureau of Alcohol, Tobacco, and Firearms for review and shall ask for a determination of the following: (i) whether a person who has his or her firearms rights restored pursuant to this act can legally purchase and possess a firearm under federal law, and (ii) whether a person who falls under the exception to the State Felony Firearms Act regarding antitrust violations, unfair trade practices, or restraints of trade as enacted by this act can legally purchase and possess a firearm under federal law. The Attorney General shall report the response to the Joint Legislative Corrections, Crime Control and Juvenile Justice Oversight Committee.”

Session Laws 2010-108, s. 7, as amended by Session Laws 2011-2, s. 1, provides, in part: “Prosecutions for offenses committed before the effective date of this act [February 1, 2011] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2011-2, s. 1, amended Session Laws 2010-108, s. 7, to delete language making this section applicable to offenses committed on or after February 1, 2011.

Session Laws 2011-268, which, in s. 13, amended the section by substituting “is authorized” for “is permissible” in the second sentence of the last paragraph in subsection (b), and rewriting subsection (d), provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

This section is printed in the supplement to correct an error in the main volume.

Effect of Amendments.

Session Laws 2004-186, s. 14.1, effective December 1, 2004, and applicable to offenses committed on or after that date, rewrote subsection (a).

Session Laws 2006-259, s. 7(b), effective August 23, 2006, added the last sentence of the first paragraph of subsection (a).

Session Laws 2010-108, s. 3, as amended by Session Laws 2011-2, s.1, effective February 1, 2011, added subsections (d) and (e).

Session Laws 2011-268, s. 13, effective December 1, 2011, substituted “is authorized” for “is permissible” in the second sentence of the last paragraph in subsection (b); and rewrote subsection (d), which formerly read: “This section does not apply to a person whose firearms rights have been restored under G.S. 14-415.4 , unless the person is convicted of a subsequent felony after the petition to restore the person’s firearms rights is granted.” For applicability, see Editor’s Note.

Legal Periodicals.

For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

For article, “Do the Mentally Ill Have a Right to Bear Arms?,” see 48 Wake Forest L. Rev. 1 (2013).

For note, “The Fourth is Strong in This One: A Comparative Analysis of the Fourth Circuit’s Approach to Judicial Scrutiny in Second Amendment Cases,” see 9 Elon L. Rev. 225 (2017).

For article, “Heller After Ten Years: Foreword,” see 40 Campbell L. Rev. 299 (2018).

For article, “Style, Substance, and the Right to Keep and Bear Assault Weapons,” see 40 Campbell L. Rev. 301 (2018).

For article, “The First Congressional Debate on Public Carry and What It Tells Us About Firearm Regionalism,” see 40 Campbell L. Rev. 335 (2018).

For article, “Heller in the Lower Courts,” see 40 Campbell L. Rev. 399 (2018).

For article, “Heller and Public Carry Restrictions,” see 40 Campbell L. Rev. 431 (2018).

For article, “Heller and ‘Assault Weapons’,” see 40 Campbell L. Rev. 461 (2018).

For comment, “When One Word Changes Everything: How the Unitary Concept Dismantles the Basis of Terry Frisks,” see 97 N.C.L. Rev. 192 (2018).

For note, “Time to Reload: The Harms of the Federal Felon-In-Possession Ban in a Post-Heller World,” see 70 Duke L.J. 1429 (2021).

CASE NOTES

Constitutionality. —

This section is not constitutionally invalid because the restriction applies during the five years after conviction, discharge from a correctional institution, or termination of a suspended sentence, probation or parole, whichever is later. This merely establishes a class, those convicted of the enumerated crimes who are within five years of the end of their punishment, and the law applies uniformly to all members of the class affected. State v. Tanner, 39 N.C. App. 668, 251 S.E.2d 705, 1979 N.C. App. LEXIS 2547 (1979).

This section is not unconstitutionally vague. It clearly delineates those to whom it applies and the classes of conduct proscribed, so that a person of ordinary intelligence may be apprised of the conduct forbidden. State v. Tanner, 39 N.C. App. 668, 251 S.E.2d 705, 1979 N.C. App. LEXIS 2547 (1979).

Where the defendant’s earlier conviction was for second-degree murder, a crime of violence, there was no constitutional difficulty with the classification scheme under this section as applied to defendant, since there was clearly a reasonable relation between the classification, those convicted of a crime of violence, and the purpose of the statute, protection of the people from violence. State v. Tanner, 39 N.C. App. 668, 251 S.E.2d 705, 1979 N.C. App. LEXIS 2547 (1979).

By possessing a firearm, defendant committed a fresh violation of G.S. 14-288.8(c), and defendant’s punishment for that new crime could not reasonably be said to re-punish the earlier offense; rather, it only punished the new violation, and accordingly the mere reliance on the earlier conviction to establish that defendant was a recidivist for sentencing purposes did not implicate double jeopardy concerns. State v. Crump, 178 N.C. App. 717, 632 S.E.2d 233, 2006 N.C. App. LEXIS 1671 (2006).

As amended in 2004, G.S. 14-415.1 is not unconstitutional because it treated all felons the same, protected and preserved the health, safety, and welfare of the citizens of North Carolina, did not violate the ex post facto clauses of U.S. and North Carolina constitutions, and did not violate plaintiff’s rights to due process, equal protection, or to bear arms. Britt v. State, 185 N.C. App. 610, 649 S.E.2d 402, 2007 N.C. App. LEXIS 1938 (2007), rev'd, 363 N.C. 546 , 681 S.E.2d 320, 2009 N.C. LEXIS 815 (2009).

Defendant’s prior conviction was not an “offense” within the meaning of the Double Jeopardy Clause when construed with defendant’s conviction of possession of a firearm by a felon under G.S. 14-415.1(a) . State v. Coltrane, 188 N.C. App. 498, 656 S.E.2d 322, 2008 N.C. App. LEXIS 194 (2008).

Application of G.S. 14-415.1 to a gun owner violated N.C. Const. Art. I, § 30 because pursuant to G.S. 14-415.1 , the State unreasonably divested the owner of his right to own a firearm, no evidence was presented indicating that the owner was dangerous or had ever misused firearms, and the owner affirmatively demonstrated that he was not among the class of citizens who posed a threat to public peace and safety; as applied to the owner, G.S. 14-451.1 was an unreasonable regulation, not fairly related to the preservation of public peace and safety, and it was unreasonable to assert that a nonviolent citizen who had responsibly, safely, and legally owned and used firearms for seventeen years was in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety. Britt v. State, 363 N.C. 546 , 681 S.E.2d 320, 2009 N.C. LEXIS 815 (2009).

In a case in which defendant appealed his convictions for possession of a firearm by a convicted felon, in violation of G.S. 14-415.1 , defendant argued unsuccessfully that the Heller decision required the court to examine the restriction upon his right to keep and bear arms under strict scrutiny and that under the strict scrutiny analysis the 2004 amendment to G.S. 14-415.1 was unconstitutional. Inter alia, the strict scrutiny test was not adopted in the Heller decision, and the North Carolina Supreme Court declined to adopt the strict scrutiny test in the Britt decision, which involved G.S. 14-415.1. State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395, 2009 N.C. App. LEXIS 2198 (2009), cert. denied, 560 U.S. 972, 130 S. Ct. 3428, 177 L. Ed. 2d 337, 2010 U.S. LEXIS 4774 (2010), aff'd, 364 N.C. 404 , 700 S.E.2d 215, 2010 N.C. LEXIS 737 (2010).

In a case in which defendant appealed his convictions for possession of a firearm by a convicted felon, in violation of G.S. 14-415.1 , defendant’s facial challenge to the constitutionality of G.S. 14-415 -.1 failed since he had not established that no set of circumstances existed under which G.S. 14-415.1 would be valid. State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395, 2009 N.C. App. LEXIS 2198 (2009), cert. denied, 560 U.S. 972, 130 S. Ct. 3428, 177 L. Ed. 2d 337, 2010 U.S. LEXIS 4774 (2010), aff'd, 364 N.C. 404 , 700 S.E.2d 215, 2010 N.C. LEXIS 737 (2010).

In a case in which defendant appealed his convictions for possession of a firearm by a convicted felon, in violation of G.S. 14-415.1 , defendant argued unsuccessfully that G.S. 14-415.1 was unconstitutional as applied to him. Under the five Britt factors, G.S. 14-415.1 was not unconstitutional as applied to defendant; it was not unreasonable to prohibit a convicted felon who had violated the law on numerous occasions, even as recently as last year, and who ignored two valid warnings of his unlawful conduct, from possessing firearms in order to preserve public peace and safety. State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395, 2009 N.C. App. LEXIS 2198 (2009), cert. denied, 560 U.S. 972, 130 S. Ct. 3428, 177 L. Ed. 2d 337, 2010 U.S. LEXIS 4774 (2010), aff'd, 364 N.C. 404 , 700 S.E.2d 215, 2010 N.C. LEXIS 737 (2010).

Felony Firearms Act, G.S. 14-415.1 et seq., was unconstitutional as applied to a gainfully employed gun owner who had two prior felonies, both decades old and neither of which involved violent conduct, and who had, after having his firearms-related rights restored, used his weapons in a safe and lawful manner for 17 years. Baysden v. State, 217 N.C. App. 20, 718 S.E.2d 699, 2011 N.C. App. LEXIS 2335 (2011).

North Carolina Felony Firearms Act, G.S. 14-415.1 et seq., does not violate procedural due process rights under the Constitution of the State of North Carolina or the Constitution of the United States. Johnston v. State, 224 N.C. App. 282, 735 S.E.2d 859, 2012 N.C. App. LEXIS 1447 (2012), aff'd, 367 N.C. 164 , 749 S.E.2d 278, 2013 N.C. LEXIS 1156 (2013).

Trial court erred in dismissing the charges against defendant on the basis that the Felony Firearms Act was unconstitutional as applied to him, as it was not unreasonable to prohibit defendant, who had two felony convictions for selling a controlled substance and one for attempted assault with a deadly weapon, from possessing firearms in order to preserve public peace and safety. State v. Price, 233 N.C. App. 386, 757 S.E.2d 309, 2014 N.C. App. LEXIS 317 (2014).

In a case in which defendant appealed his conviction of possession of a firearm by a felon, the appellate court concluded that the State established that defendant’s “as applied” challenge to G.S. 14-415.1 under N.C. Const. art. I, § 30, failed as a matter of law. The fact that defendant’s right to possess a firearm at his home may have been restored under Texas law did not mean that right was restored under North Carolina law. State v. Bonetsky, 246 N.C. App. 640, 784 S.E.2d 637, 2016 N.C. App. LEXIS 362 (2016).

Trial court did not err in denying defendant’s motion to dismiss on the ground his individual right to keep and bear arms under the Second Amendment had been violated since the statute prohibited him from keeping firearms in his home because defendant was convicted felon; therefore, defendant could not show he was a law-abiding, responsible citizen or rebut the statute’s presumption of lawfulness. State v. Fernandez, 256 N.C. App. 539, 808 S.E.2d 362, 2017 N.C. App. LEXIS 974 (2017).

Statute was not unconstitutional as applied to defendant because it was a reasonable regulation that was fairly related to the preservation of public peace and safety; defendant was previously convicted of possessing a sawed-off shotgun, a weapon of mass destruction, he unlawfully possessed at least one firearm since his conviction, he had been convicted of several other crimes, and he could not claim compliance with the statute. State v. Fernandez, 256 N.C. App. 539, 808 S.E.2d 362, 2017 N.C. App. LEXIS 974 (2017).

It is not unreasonable to prohibit a convicted felon who has subsequently violated the law on several occasions from possessing a firearm in order to preserve public peace and safety. State v. Fernandez, 256 N.C. App. 539, 808 S.E.2d 362, 2017 N.C. App. LEXIS 974 (2017).

Amendment of Statute in 1995 and Application to Ex-Felons Did Not Violate Ex Post Facto. —

Application of G.S. 14-415.1 to convict defendant, who was convicted of a felony in 1983 and had fully served his sentence on that conviction when he was found in possession of a handgun in 2001, did not violate ex post facto where the statute was amended in 1995 and applied to all occurrences after that date; ex post facto was also not violated since defendant’s 1983 conviction, which was the predicate felony for his conviction under G.S. 14-415.1 , was a felony in 1983, was a felony in 1995 when the statute was amended, and was a felony in 2001 when defendant was found in possession of a handgun; finally, the amendment to G.S. 14-415.1 in 1995 did not increase the punishment for defendant’s prior 1983 felony, but created a new offense, so ex post facto was also not violated on that ground. State v. Johnson, 169 N.C. App. 301, 610 S.E.2d 739, 2005 N.C. App. LEXIS 612 (2005).

Amendments to Statutes Criminalizing Possession of Guns by Ex-Felons Are Not Bills of Attainder. —

Application of G.S. 14-415.1 to convict defendant, who was convicted of a felony in 1983 and had fully served his sentence on that conviction when he was found in possession of a handgun in 2001, did not violate prohibitions against bills of attainder, or against bills of pain and penalties, since the statute’s prohibition of possession of handguns by convicted felons outside their homes or businesses was not enacted as a retroactive punishment, was not historically regarded as punishment, and was not imposed without judicial process; defendant had a trial before being convicted under the statute; defendant was not punished for belonging to a designated class of people, but was convicted for violating a statute that was validly imposed on the group to which he belonged, so there was no violation of the bill of attainder provisions in U.S. Const. Art. I, § 10 and N.C. Const. Art. I, § 16. State v. Johnson, 169 N.C. App. 301, 610 S.E.2d 739, 2005 N.C. App. LEXIS 612 (2005).

In a case in which defendant appealed his convictions for possession of a firearm by a convicted felon, in violation of G.S. 14-415.1 , defendant’s argument that G.S. 14-415.1 violated the prohibition against ex post facto laws and was an unconstitutional bill of attainder had been previously considered and rejected. State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395, 2009 N.C. App. LEXIS 2198 (2009), cert. denied, 560 U.S. 972, 130 S. Ct. 3428, 177 L. Ed. 2d 337, 2010 U.S. LEXIS 4774 (2010), aff'd, 364 N.C. 404 , 700 S.E.2d 215, 2010 N.C. LEXIS 737 (2010).

Amendment to Statute in 2004 Was Not Unconstitutional Ex Post Facto Law. —

2004 amendment to G.S. 14-415.1 , which prohibited convicted felons from possessing any firearm in any location, did not violate State and federal constitutional protections against ex post facto laws or bills of attainder because the amendment’s purpose was to establish a civil regulatory measure, and the effect of the statute was not punitive in nature. State v. Whitaker, 364 N.C. 404 , 700 S.E.2d 215, 2010 N.C. LEXIS 737 (2010).

Statute Not Recidivist Statute. —

Judgment was properly entered on defendant’s possession of a firearm by a felon charge since G.S. 14-415.1 (a) created a substantive offense to which the Sixth Amendment right to a jury trial applied, and did not create a sentencing requirement aimed at reducing recidivism; defendant committed a new substantive offense when defendant violated G.S. 14-415.1 even though defendant did not violate a “consequence of (defendant’s) original conviction.” State v. Wood, 185 N.C. App. 227, 647 S.E.2d 679, 2007 N.C. App. LEXIS 1674 (2007).

Ex-Felon’s Right to Possess Guns Not a Vested Right and Was Properly Restricted to Home and Business. —

Since a convicted felon’s re-acquired right to bear arms was subject to regulation and was not completely abridged by a subsequent amendment to G.S. 14-415.1 , which prohibited the ex-felon from possessing handguns outside his home or business, and since the regulation was reasonably related to further securing the public’s safety, there was no interference with any vested right when the statute was amended to include the ex-felon; he was properly convicted and sentenced for violating the statute without any violation of his right to due process. State v. Johnson, 169 N.C. App. 301, 610 S.E.2d 739, 2005 N.C. App. LEXIS 612 (2005).

Construction with Other Provisions. —

Reading G.S. 14-288.8 in pari materia with this section, it is clear that the footnote to G.S. 14-288.8 which reads “nothing in this subsection would prohibit the right of any person to have possession of a firearm within his own home or . . . place of business” does not apply to weapons of mass death and destruction; North Carolina did not intend to restore to its ex-felons the right to possess such weapons within their own homes, in contravention of the general federal prohibition against felons possessing firearms. United States v. Walker, 39 F.3d 489, 1994 U.S. App. LEXIS 30369 (4th Cir. 1994).

Subsection (a) encompasses a narrow range of guns, while G.S. 14-269.2(b) prohibits any gun, excluding only a BB gun, stun gun, air rifle, or air pistol. In re Cowley, 120 N.C. App. 274, 461 S.E.2d 804, 1995 N.C. App. LEXIS 738 (1995).

Irregardless of whether a criminal defendant pleads guilty or no contest, where a felony conviction is ultimately adjudicated, the defendant is thereafter a convicted felon for the purposes of G.S. 14-404 and prohibited from obtaining a hand gun. Friend v. State, 169 N.C. App. 99, 609 S.E.2d 473, 2005 N.C. App. LEXIS 535 (2005).

Trial court lacked jurisdiction to grant defendant’s motion for appropriate relief seeking to have his convictions for possession of a firearm by a felon vacated because instead of working a change in existing law, the decision simply announced what the law had been since the enactment of the statute; a decision which merely resolves a previously undecided issue without overruling or modifying a prior decision cannot serve as the basis for an award of appropriate relief. State v. Harwood, 228 N.C. App. 478, 746 S.E.2d 445, 2013 N.C. App. LEXIS 842 , cert. dismissed, 752 S.E.2d 486, 2013 N.C. LEXIS 1427 (N.C. 2013).

Construction with Federal Law. —

The fact that State law permits a convicted felon to possess a firearm in his home despite his status as a convicted felon whose civil rights have not been restored was not sufficient to insulate the defendant from prosecution under 18 U.S.C. § 922(g)(1); a prior felony conviction is exempt from use as predicate offense under § 922(g)(1) only if the defendant has had his civil rights and his firearm privileges restored. United States v. King, 119 F.3d 290, 1997 U.S. App. LEXIS 18965 (4th Cir. 1997).

When North Carolina discharged defendant’s 1975 and 1977 convictions, the Felony Firearms Act in effect in 1983 barred his possession of firearms for five years; consequently, the occurrence of his 1988 conviction before the expiration of the five-year period precluded a restoration of his civil rights after the other two convictions, and these were, therefore, properly considered along with the 1988 conviction for purposes of the Federal Armed Career Criminal Act, 18 U.S.C. § 924(e). United States v. O'Neal, 180 F.3d 115, 1999 U.S. App. LEXIS 11167 (4th Cir.), cert. denied, 528 U.S. 980, 120 S. Ct. 433, 145 L. Ed. 2d 339, 1999 U.S. LEXIS 7317 (1999).

North Carolina’s prohibition under G.S. 14.415.1(a) against convicted felons whose civil rights had been otherwise restored from possessing handguns outside their home or lawful place of business was sufficient to satisfy the requirement of 18 U.S.C.S. § 922(g) for a conviction of being a felon in possession of a firearm. United States v. Farmer, 49 Fed. Appx. 487, 2002 U.S. App. LEXIS 22819 (4th Cir. 2002).

Trial court properly convicted defendant, inter alia, of possession of a firearm by a felon and sentenced him as a prior record level IV offender because the record contained sufficient information to determine that his prior federal conviction of being a felon in possession of a firearm was substantially similar to the North Carolina offense in that they both criminalized the possession of firearms by disqualified felons and remained unchanged in the 2012 to 2015 time period. State v. Riley, 253 N.C. App. 819, 802 S.E.2d 494, 2017 N.C. App. LEXIS 441 (2017).

It was no error to find defendant’s federal firearms possession conviction was substantially similar to his North Carolina firearms possession conviction, for purposes of sentencing, because both statutes barred possession of a firearm by a felon, despite distinctions, and the State’s failure to present copies of the relevant federal statute was harmless, as an appellate court could determine the statutes were substantially similar from the record. State v. Weldon, 258 N.C. App. 150, 811 S.E.2d 683, 2018 N.C. App. LEXIS 176 (2018).

In a prosecution under this section, defendant was not subjected to double jeopardy, though he had been tried and acquitted in district court on the charge of carrying a concealed weapon, a charge stemming from the same transaction from which the charge under this section arose, since the warrant in the former action and the indictment in the present action were drawn pursuant to different statutes and elements of the two offenses were separate and distinct. State v. Cobb, 18 N.C. App. 221, 196 S.E.2d 521, 1973 N.C. App. LEXIS 1820 (1973), rev'd, 284 N.C. 573 , 201 S.E.2d 878, 1974 N.C. LEXIS 1289 (1974).

Clearly, North Carolina intends to restore to ex-convicts their general citizenship rights but limit their firearms privileges. Therefore, the Felony Firearms Act expressly provides the circumstances under which a “person may not ship, transport, possess or receive firearms,” as required by 18 U.S.C. § 921(a)(20). United States v. McLean, 904 F.2d 216, 1990 U.S. App. LEXIS 8885 (4th Cir.), cert. denied, 498 U.S. 875, 111 S. Ct. 203, 112 L. Ed. 2d 164, 1990 U.S. LEXIS 4613 (1990).

Purpose of Repeal of G.S. 14-415.2 . —

When the Firearms Act became law in 1971, felons were not automatically restored to full citizenship immediately upon their release from prison; however, those felons whose citizenship rights had been restored were exempt from the Act. Then in 1973, North Carolina amended the General Statutes to restore felons to full citizenship immediately upon their unconditional discharge under G.S. 13-1 et seq. When it became apparent that this would make virtually all felons exempt from the Firearms Act, the General Assembly repealed the exemption for felons whose citizenship rights had been restored. United States v. McLean, 904 F.2d 216, 1990 U.S. App. LEXIS 8885 (4th Cir.), cert. denied, 498 U.S. 875, 111 S. Ct. 203, 112 L. Ed. 2d 164, 1990 U.S. LEXIS 4613 (1990).

Section Held Not Ex Post Facto Respecting Alleged Violation on July 31, 1972. —

See State v. Cobb, 18 N.C. App. 221, 196 S.E.2d 521, 1973 N.C. App. LEXIS 1820 (1973), rev'd, 284 N.C. 573 , 201 S.E.2d 878, 1974 N.C. LEXIS 1289 (1974).

What Constitutes Conviction Under This Section. —

If a defendant enters a plea, including a plea of no contest, so that a felony judgment or imprisonment for more than two years may be imposed then it constitutes a conviction under this section. State v. Watts, 72 N.C. App. 661, 325 S.E.2d 505, 1985 N.C. App. LEXIS 3133 (1985).

Five-Year Period. —

Possession beyond the five-year post-release period is simply not a crime in North Carolina. Ex-felons regain the right to possess a gun in North Carolina by the mere passage of time. United States v. Essick, 935 F.2d 28, 1991 U.S. App. LEXIS 8288 (4th Cir. 1991), limited, United States v. Thomas, 52 F.3d 82, 1995 U.S. App. LEXIS 9017 (4th Cir. 1995), limited, United States v. Bartelho, 71 F.3d 436, 1995 U.S. App. LEXIS 33726 (1st Cir. 1995).

The current language of G.S. 14-415.1 which contains no time bar for the charge; defendant’s conviction of possession of a firearm by a convicted felon was not improper although the possession of a firearm occurred more than five years after the previous conviction. State v. Gaither, 161 N.C. App. 96, 587 S.E.2d 505, 2003 N.C. App. LEXIS 1996 (2003).

Sawed-Off Shotguns. —

With limited and specific exceptions, no one in North Carolina, ex-felon or otherwise, may possess, store or acquire a sawed-off shotgun for any reason or under any circumstance. United States v. Walker, 39 F.3d 489, 1994 U.S. App. LEXIS 30369 (4th Cir. 1994).

State’s decision to allege defendant’s possession of a handgun required that it produce such evidence at trial, as the category of weapon was an essential element of G.S. 14-415.1(a) ; as the State failed to do so, there was a fatal variance between the indictment and the evidence, and the State’s proof at trial was instead of a specific category of firearm, a sawed-off shotgun. State v. Langley, 173 N.C. App. 194, 618 S.E.2d 253, 2005 N.C. App. LEXIS 1920 (2005).

Simultaneous Possession Only Supports Single Conviction. —

Trial court erred by entering two felony convictions for possession of a firearm by a felon because defendant possessed the firearms simultaneously; defendant should have been convicted and sentenced only once for his possession of both firearms. State v. Garris, 191 N.C. App. 276, 663 S.E.2d 340, 2008 N.C. App. LEXIS 1321 (2008).

G.S. 14-415.1(a) does not authorize multiple convictions of and sentences for possession of a firearm by a convicted felon predicated on evidence that the defendant simultaneously obtained and possessed one or more firearms, which he used during the commission of multiple substantive criminal offenses. State v. Wiggins, 210 N.C. App. 128, 707 S.E.2d 664, 2011 N.C. App. LEXIS 340 (2011).

Defendant’s possession of a firearm during the sequence of events that included the murder of one person and the assaults upon two other people constituted a single possessory offense rather than three separate possessory offenses. State v. Wiggins, 210 N.C. App. 128, 707 S.E.2d 664, 2011 N.C. App. LEXIS 340 (2011).

Prosecution for Possession of Firearm by Ex-Felon in Violation of 18 U.S.C. § 922(g)(1). —

In North Carolina, an ex-felon who is more than five years beyond his release date has the same civil rights regarding firearms as nonfelons; for purposes of 18 U.S.C. § 922(g)(1), then, his prior conviction does not exist. Proof of a prior “conviction” under federal law encompasses more than proof of a discrete event in the defendant’s past; the government must show the continuing vitality of the conviction, a matter of proof that, under North Carolina law, necessarily implicates the five-year post-release period. United States v. Essick, 935 F.2d 28, 1991 U.S. App. LEXIS 8288 (4th Cir. 1991), limited, United States v. Thomas, 52 F.3d 82, 1995 U.S. App. LEXIS 9017 (4th Cir. 1995), limited, United States v. Bartelho, 71 F.3d 436, 1995 U.S. App. LEXIS 33726 (1st Cir. 1995).

In North Carolina, the government must prove, at a minimum, that the defendant possessed a firearm within five years of release from supervision resulting from the prior North Carolina felony. Otherwise, the defendant would as a matter of law stand in the same shoes as any other person who had not been previously convicted of a felony. United States v. Essick, 935 F.2d 28, 1991 U.S. App. LEXIS 8288 (4th Cir. 1991), limited, United States v. Thomas, 52 F.3d 82, 1995 U.S. App. LEXIS 9017 (4th Cir. 1995), limited, United States v. Bartelho, 71 F.3d 436, 1995 U.S. App. LEXIS 33726 (1st Cir. 1995).

Felon convicted of manslaughter whose civil rights were restored was entitled to possess firearms or any type of firearm in his home or business, and all restrictions on his possession of firearms ceased after five years. As a result, the district court erred in denying defendant’s motion to dismiss count charging him with violating 18 U.S.C. § 922(g)(1) by possessing firearms in his home. United States v. Shoemaker, 2 F.3d 53, 1993 U.S. App. LEXIS 20648 (4th Cir. 1993), cert. denied, 510 U.S. 1047, 114 S. Ct. 698, 126 L. Ed. 2d 665, 1994 U.S. LEXIS 157 (1994).

Because defendant’s underlying State felony conviction occurred within five years of a firearm offense, the defendant’s civil rights could not have been fully restored, and the government proved a firearm possession violation despite the fact that it did not independently establish that defendant’s civil rights had not been restored at the time of his firearm possession. United States v. Thomas, 52 F.3d 82, 1995 U.S. App. LEXIS 9017 (4th Cir.), cert. denied, 516 U.S. 885, 116 S. Ct. 226, 133 L. Ed. 2d 155, 1995 U.S. LEXIS 6420 (1995).

The General Assembly did not intend a preclusion of consolidation by requiring a separate bill of indictment under this section. Had the General Assembly also intended to preclude consolidation of the related offenses for trial by the requirement of a separate bill of indictment, it would have so stated. State v. Hardy, 67 N.C. App. 122, 312 S.E.2d 699, 1984 N.C. App. LEXIS 3013 (1984).

Subsection (c) of this section is clear and unambiguous. It is silent as to the question of consolidation and it simply requires a separate indictment. The mere fact of a requirement of separate indictments constitutes no bar, in and of itself, to consolidation. State v. Hardy, 67 N.C. App. 122, 312 S.E.2d 699, 1984 N.C. App. LEXIS 3013 (1984).

Subsection (a). —

The first paragraph of subsection (a) creates a substantive criminal offense, complete and definite in its description. State v. Bishop, 119 N.C. App. 695, 459 S.E.2d 830, 1995 N.C. App. LEXIS 619 (1995).

The third paragraph of subsection (a) creates an exception to the offense which allows possession within one’s home or place of business. State v. Bishop, 119 N.C. App. 695, 459 S.E.2d 830, 1995 N.C. App. LEXIS 619 (1995).

“Home”. —

Defendant had plainly surrendered dominion and control of trailer property that he owned when he rented it; thus, it was not his “home” for purposes of this section. State v. Locklear, 121 N.C. App. 355, 465 S.E.2d 61, 1996 N.C. App. LEXIS 5 , writ denied, 342 N.C. 662 , 467 S.E.2d 701, 1996 N.C. LEXIS 109 (1996).

Possession in Own Home or Business. —

The first paragraph of subsection (a) of this section creates a substantive criminal offense, complete and definite in its description. The third paragraph of subsection (a) creates an exception to the offense, by excluding from its prohibition the possession of a firearm within one’s own home or on his lawful place of business. State v. McNeill, 78 N.C. App. 514, 337 S.E.2d 172, 1985 N.C. App. LEXIS 4295 (1985).

By using the words “within his own home” in the exception in the third paragraph of subsection (a) of this section, as opposed to some broader terminology, the legislature clearly expressed its intent to limit the applicability of the exception to the confines and privacy of the convicted felon’s own premises, over which he has dominion and control to the exclusion of the public. State v. McNeill, 78 N.C. App. 514, 337 S.E.2d 172, 1985 N.C. App. LEXIS 4295 (1985).

The Legislature intended to limit the exception under this section to the convicted felon’s own premises over which he or she has dominion and control to the exclusion of the public. State v. Cloninger, 83 N.C. App. 529, 350 S.E.2d 895, 1986 N.C. App. LEXIS 2739 (1986).

Defendant argued that the trial court erred in denying defendant’s motion to dismiss the possession of a firearm by a convicted felon charge at the close of all the evidence; however, there was substantial evidence in the record to permit a reasonable juror to conclude that the premises did not constitute defendant’s home. State v. Smith, 155 N.C. App. 500, 573 S.E.2d 618, 2002 N.C. App. LEXIS 1636 (2002).

Possession in Common Areas. —

The exception in the third paragraph of subsection (a) of this section, applying to a person in his own home, does not encompass common areas of an apartment house, such as stairways, hallways and porches. State v. McNeill, 78 N.C. App. 514, 337 S.E.2d 172, 1985 N.C. App. LEXIS 4295 (1985).

The statutory exception for possession within one’s home business does not apply to the common areas of a motel. State v. Cloninger, 83 N.C. App. 529, 350 S.E.2d 895, 1986 N.C. App. LEXIS 2739 (1986).

Evidence held sufficient to support a reasonable inference that defendant was on his neighbor’s property at the time he fired pistol, and not on his own. State v. Hinson, 85 N.C. App. 558, 355 S.E.2d 232, 1987 N.C. App. LEXIS 2630 (1987).

Operability of Gun. —

Where the State produced evidence tending to prove the defendant’s constructive possession of a shotgun within five years from the date of a conviction for felonious assault, but there was no evidence as to whether the shotgun was operable, the evidence was sufficient to require the submission of the case to the jury and to support the verdict. State v. Baldwin, 34 N.C. App. 307, 237 S.E.2d 881, 1977 N.C. App. LEXIS 1662 (1977).

Inoperability of a handgun or other firearm is not an affirmative defense to a charge of possession of a firearm by a felon. State v. Jackson, 353 N.C. 495 , 546 S.E.2d 570, 2001 N.C. LEXIS 529 (2001).

Operability of a firearm is not an essential element of the charge of possession of a firearm by a felon, G.S. 14-415.1 , nor is it an affirmative defense. State v. McCree, 160 N.C. App. 200, 584 S.E.2d 861, 2003 N.C. App. LEXIS 1727 (2003).

The statutory measurements language in this section is not applicable to handguns; the specified measurements are qualifying words which distinguish those firearms, other than handguns, which are also covered by this section. State v. Cloninger, 83 N.C. App. 529, 350 S.E.2d 895, 1986 N.C. App. LEXIS 2739 (1986).

Proof of barrel length or overall length is not an essential element of the offense of possession of a handgun within five years after conviction of a felonious offense. State v. Cloninger, 83 N.C. App. 529, 350 S.E.2d 895, 1986 N.C. App. LEXIS 2739 (1986).

Joinder with Charge of Robbery with Dangerous Weapon. —

Charge of possession of a firearm by a felon was properly joined for trial with the offense of robbery with a dangerous weapon and, thus, defendant failed to show that counsel was deficient for failing to challenge such joinder. State v. Alston, 233 N.C. App. 152, 756 S.E.2d 70, 2014 N.C. App. LEXIS 304 (2014).

Evidence of Prior Conviction. —

In a prosecution for possession of a firearm by a felon, the trial court did not err in allowing the State to introduce defendant’s stipulation as to his previous conviction of breaking and entering a motor vehicle, since the State merely introduced defendant’s stipulation into evidence so there would be no doubt as to that particular element of the offense being satisfied; the State offered no other evidence in regard to defendant’s prior conviction; and the court properly instructed the jury in its charge to consider the conviction only for the purpose of establishing an essential element of the offense and not as evidence of guilt or predisposition. State v. Jeffers, 48 N.C. App. 663, 269 S.E.2d 731, 1980 N.C. App. LEXIS 3310 (1980), cert. denied, 301 N.C. 724 , 276 S.E.2d 285, 1981 N.C. LEXIS 1137 (1981).

The State had no alternative but to introduce evidence of defendant’s prior convictions in order to meet its burden of showing an element of possession of a firearm by a felon; thus, the trial did not commit error by the admission of the evidence. State v. Faison, 128 N.C. App. 745, 497 S.E.2d 111, 1998 N.C. App. LEXIS 161 (1998).

Trial court did commit prejudicial error under this section in rejecting defendant’s tendered limiting stipulation and admitting evidence of an earlier prior voluntary manslaughter conviction, where defendant was not charged with any attendant offenses similar to his prior conviction, and where the jury was not informed that his prior conviction in any way involved use of a firearm. State v. Jackson, 139 N.C. App. 721, 535 S.E.2d 48, 2000 N.C. App. LEXIS 1039 (2000), aff'd in part and rev'd in part, 353 N.C. 495 , 546 S.E.2d 570, 2001 N.C. LEXIS 529 (2001).

Where defendant’s prior convictions for possession of cocaine were defined by G.S. 90-95(d)(2) as misdemeanors punishable as felonies, they could not support the charges of possession of a firearm by a felon and being a habitual felon under G.S. 14-415.1 and G.S. 14-7.1 . State v. Sneed, 2003 N.C. App. LEXIS 2050 (N.C. Ct. App. Nov. 18, 2003).

Trial court did not abuse its discretion in admitting defendant’s prior conviction into evidence as under the North Carolina Felony Firearms Act, specifically G.S. 14-415.1(b) , records of prior convictions of any offense were admissible in evidence for the purpose of proving a violation of G.S. 14-415.1 ; as there was no indication that defendant agreed to stipulate to defendant’s prior felony conviction, the State had no choice but to introduce evidence of defendant’s conviction in order to prove its case as to the charge of possession of a firearm by a felon. State v. Wood, 185 N.C. App. 227, 647 S.E.2d 679, 2007 N.C. App. LEXIS 1674 (2007).

Trial court did not err in using defendant’s 1988 felonious breaking or entering conviction for the purpose of both supporting the possession of a firearm by a felon charge, G.S. 14-415.1 , and calculating defendant’s prior record level because the possession of a firearm by a felon charge was a separate substantive offense from the prior felony conviction upon which defendant’s status as a felon was based and, as such, no “double counting” occurred in determining defendant’s prior record under G.S. 14-7.6 . State v. Best, 214 N.C. App. 39, 713 S.E.2d 556, 2011 N.C. App. LEXIS 1638 (2011).

Court of appeals could not conclude that the trial court abused its discretion in admitting the nature of defendant’s prior felony conviction where the court of appeals was limited to a review for plain error; defendant stipulated that he was convicted of felony possession of cocaine, and defendant failed to preserve the issue for appeal. State v. Miles, 223 N.C. App. 160, 733 S.E.2d 572, 2012 N.C. App. LEXIS 1196 (2012).

Both the 2003 conviction of possession of marijuana with intent to sell and deliver, and the conviction of possession of a firearm by a felon were felonies under the laws of North Carolina. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Determination of whether a prior conviction constitutes a felony under the possession of a firearm by a felon offense and the habitual felon statute is a question of North Carolina state law, not federal law. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Because possession of marijuana with intent to sell and deliver is a felony under North Carolina state law, the trial court properly relied on that conviction as one of defendant’s three prior convictions that qualified him for habitual felony status and satisfied the predicate felony element in prosecuting the possession of firearm by a felon, and the trial court had jurisdiction to sentence defendant as a habitual felon. State v. Northington, 230 N.C. App. 575, 749 S.E.2d 925, 2013 N.C. App. LEXIS 1212 (2013).

Assuming that the prosecutor commented on defendant’s failure to testify, the error was harmless given that defendant stipulated to his prior conviction and the evidence showing that he possessed the firearms found in his vehicle. State v. Martinez, 251 N.C. App. 284, 795 S.E.2d 386, 2016 N.C. App. LEXIS 1307 (2016).

Evidence of defendant’s prior convictions for cocaine trafficking was admissible under G.S. 14-415.1(b) and sufficient to support his conviction for possession of a firearm by a felon. State v. Leach, 166 N.C. App. 711, 603 S.E.2d 831, 2004 N.C. App. LEXIS 2026 (2004).

Trial court did not err in admitting evidence of defendant’s prior rape conviction under G.S. 14-415.1(b) and N.C. R. Evid. 403 because the conviction was not similar to the present charges of possessing a firearm and drugs. Evidence of foreign convictions was properly admitted under G.S. 15A-1340.14(f), including a printout from the FBI’s National Crime Information Center database, but remand was required for a determination of whether defendant’s New York assault conviction was substantially similar to a North Carolina offense. State v. Fortney, 201 N.C. App. 662, 687 S.E.2d 518, 2010 N.C. App. LEXIS 40 (2010).

Ignorance of Law. —

In a case in which defendant appealed his conviction of possession of a firearm by a felon, defendant’s asserted ignorance of the requirements of G.S. 14-415.1 did not weigh in his favor. Therefore, the trial court did not err by finding there was no indication that defendant had taken any affirmative action to comply with the statute. State v. Bonetsky, 246 N.C. App. 640, 784 S.E.2d 637, 2016 N.C. App. LEXIS 362 (2016).

Justification Defense. —

Even assuming arguendo the United States v. Deleveaux rationale applies in North Carolina, it is not clear a justification defense is a substantial and essential feature of a possession of a firearm by a felon (PFF) charge, as there is nothing in the PFF statute that describes justification or self-defense as an element of the offense and there is no North Carolina pattern jury instruction on the justification defense and the PFF pattern instruction does not include any language regarding justification, necessity, or self-defense. State v. Holshouser, 267 N.C. App. 349, 833 S.E.2d 193, 2019 N.C. App. LEXIS 715 (2019).

Because defendant repeatedly testified that he did not possess the firearm in question, the trial court did not commit plain error in forgoing an instruction regarding justification in his trial for possession of a firearm by a felon. State v. Holshouser, 267 N.C. App. 349, 833 S.E.2d 193, 2019 N.C. App. LEXIS 715 (2019).

To establish justification as a defense, the defendant must show: (1) he was under unlawful and present and impending threat of death or serious injury, (2) he did not negligently or recklessly place himself where he would be forced to engage in criminal conduct, (3) he had no legal alternative to violating the law, and (4) there was a direct causal relationship between criminal action and avoidance of the threatened harm. Justification instruction must be given when each factor is supported by evidence taken in light most favorable to defendant. State v. Mercer, 373 N.C. 459 , 838 S.E.2d 359, 2020 N.C. LEXIS 104 (2020).

Defendant was entitled to have the justification defense presented to the jury; when he arrived at his house, there was a group of people ready to fight him and blocking him from going inside, he heard the sound of guns cocking, he tried to explain that he was not involved in the underlying conflict but the situation escalated rapidly, and the jury could have found that his gun possession was directly caused by his attempt to avoid a threatened harm. State v. Mercer, 373 N.C. 459 , 838 S.E.2d 359, 2020 N.C. LEXIS 104 (2020).

Jury sent a note to the trial court explicitly asking about the availability of a justification defense for the charge of possession of a firearm by a felon, which indicated that the jury was concerned about this legal issue; the trial court’s failure to give a justification instruction created a reasonable possibility that the jury would have reached a different result. State v. Mercer, 373 N.C. 459 , 838 S.E.2d 359, 2020 N.C. LEXIS 104 (2020).

Defendant’s prior Virginia conviction for possession of a weapon by a felon in violation of Va. Code Ann. § 18.2-308.2(A) was substantially similar to a North Carolina offense, G.S. 14-415.1 and was therefore admissible under G.S.15A-1340.14(e). State v. Fortney, 201 N.C. App. 662, 687 S.E.2d 518, 2010 N.C. App. LEXIS 40 (2010).

Burden of Proof. —

Absent any evidence that defendant was within the exception in the third paragraph of subsection (a) of this section, the State was required to prove only that the defendant possessed a handgun within five years of his conviction of a felony specified in subsection (b). Defendant’s location at the time of the offense would be a substantive issue, requiring negative proof by the State and an instruction by the court, only upon some positive evidence by defendant that defendant’s location was within the exception to this section. State v. McNeill, 78 N.C. App. 514, 337 S.E.2d 172, 1985 N.C. App. LEXIS 4295 (1985).

Motion to Dismiss. —

Dismissal of a charge of possession of a firearm by felon under G.S. 14-415.1 was error because no evidence was presented and defendant did not file affidavit in support of his motion to dismiss; without a “definite and certain” stipulation of facts pertinent to the Britt factors, and without any other evidence, the trial court had no basis for its findings. State v. Buddington, 210 N.C. App. 252, 707 S.E.2d 655, 2011 N.C. App. LEXIS 334 (2011).

Trial court erred by denying defendant’s motion to dismiss a charge of possession of a firearm by a felon, G.S. 14-415.1(a) , for insufficient evidence because the only evidence that defendant possessed the gun at issue was his extrajudicial confession, which alone was not sufficient to support the charge; the State did not present any evidence to corroborate the confession as required by the corpus delicti doctrine. State v. Cox, 218 N.C. App. 583, 721 S.E.2d 346, 2012 N.C. App. LEXIS 213 (2012).

Trial court erred in denying defendant’s dismissal motion with respect to a charge of possession of a firearm by a felon under G.S. 14-415.1(a) , as defendant’s confession contained no details and there was no corroborative evidence that defendant owned or possessed the gun in order to satisfy the corpus delicti rule. State v. Cox, 222 N.C. App. 192, 731 S.E.2d 438, 2012 N.C. App. LEXIS 959 (2012), rev'd, 367 N.C. 147 , 749 S.E.2d 271, 2013 N.C. LEXIS 1162 (2013).

Only evidence linking defendant to a rifle found in his vehicle was defendant’s presence in the vehicle and his knowledge that it was in the backseat; consequently, the State failed to present sufficient other incriminating circumstances from which the jury could infer constructive possession, and the trial court erred in denying defendant’s motion to dismiss. State v. Bailey, 233 N.C. App. 688, 757 S.E.2d 491, 2014 N.C. App. LEXIS 411 (2014).

G.S. 14-415.1(c) Requirement That Indictment State Penalty for the Prior Offense Is Merely Directory. —

Trial court did not err by denying defendant’s motion to dismiss an indictment against him for possession of firearms by a felon in violation of G.S. 14-415.1 because the indictment was not fatally defective under G.S. 15A-644 , despite the fact that the indictment failed to state the statutory penalty for the underlying felony conviction. Because the provision under G.S. 14-415.1 (c) requiring the indictment to state the penalty for the prior offense is not material and does not affect a substantial right, defendant was no less apprised of the conduct that was the subject of the accusation than he would have been if the indictment had included the prior conviction’s penalty; furthermore, G.S. 15A-644 did not require the quashing of the bill of indictment under the circumstances in defendant’s case because doing so would attribute to the legislature an intent to paramount mere form over substance. State v. Boston, 165 N.C. App. 214, 598 S.E.2d 163, 2004 N.C. App. LEXIS 1159 (2004).

Indictment Upheld. —

Assuming for the sake of argument that this section required the State to prove the length both of handguns and of “other firearms”, an indictment which alleged that defendant “unlawfully, willfully and feloniously did possess and have in his custody a Charter Arms .38 caliber pistol, which is a handgun”, but made no mention of the pistol’s length, was sufficient to give defendant notice of the offense charged and to allow defendant to prepare his defense. Furthermore, the State produced at trial the pistol alleged to have been possessed by defendant so that the jurors could determine in court the pistol’s length. State v. Riggs, 79 N.C. App. 398, 339 S.E.2d 676, 1986 N.C. App. LEXIS 2058 (1986).

Omission of the date of defendant’s prior conviction of breaking and entering a motor vehicle was not material, did not affect a substantial right relating to defendant’s charge of possession of firearm by a convicted felon, and was not fatal to jurisdiction. State v. Inman, 174 N.C. App. 567, 621 S.E.2d 306, 2005 N.C. App. LEXIS 2480 (2005).

Because the date of the offense was not an essential element of the offense of possession of a firearm by a felon in G.S. 14-415.1 , the State was properly allowed to amend the indictment under G.S. 15A-923 . State v. Coltrane, 188 N.C. App. 498, 656 S.E.2d 322, 2008 N.C. App. LEXIS 194 (2008).

Although there was a discrepancy as to the date of defendant’s prior felony offense in the indictments and the judgment which was entered into evidence, defendant’s possession of a firearm by a felon and habitual felon indictments were sufficient under G.S. 14-415.1(c) and G.S. 14-7.3 because the discrepancy was not material and did not affect a substantial right. Furthermore, the discrepancy in the indictments and the proof at trial was not a fatal variance because the date on which defendant committed the prior felony was not an essential element of either offense. State v. Taylor, 203 N.C. App. 448, 691 S.E.2d 755, 2010 N.C. App. LEXIS 650 (2010), cert. dismissed, 366 N.C. 408 , 736 S.E.2d 180, 2012 N.C. LEXIS 1170 (2012).

Indictment Fatally Defective. —

Conviction for possession of a firearm by a felon was vacated because the indictment was fatally defective under G.S. 14-415.1(c) ; the charge was included as a separate count in a single indictment also charging assault with a deadly weapon. The trial court thus lacked jurisdiction to try defendant for the firearm charge. State v. Wilkins, 225 N.C. App. 492, 737 S.E.2d 791, 2013 N.C. App. LEXIS 133 (2013).

Trial court lacked jurisdiction over the charge against defendant of possession of a firearm by a felon because the offense was charged with related offenses in a single indictment and was not contained in a separate indictment as was required. The State of North Carolina’s failure to obtain a separate indictment for the charge rendered the charge fatally defective and invalid and did not invoke the trial court’s jurisdiction. State v. Newborn, 2021-NCCOA-426, 279 N.C. App. 42, 864 S.E.2d 752, 2021- NCCOA-426, 2021 N.C. App. LEXIS 450 (2021).

Requested Jury Instructions. —

Where defendant, who was not within his own premises, voluntarily confronted his neighbors while armed, although not under a present or imminent threat of death or injury, he was not entitled to a justification instruction to the jury. State v. Napier, 149 N.C. App. 462, 560 S.E.2d 867, 2002 N.C. App. LEXIS 220 (2002).

Trial court properly refused to give defendant’s requested special instruction on the defense of justification of possession of a firearm by a felon because the request was not in writing and the evidence showed that defendant possessed the weapon during a time period when he was under no imminent threat of harm. State v. Craig, 167 N.C. App. 793, 606 S.E.2d 387, 2005 N.C. App. LEXIS 6 (2005).

Trial court did not err in refusing defendant’s request to give a special instruction on self-defense as to a charge of possession of a firearm by a felon because the evidence did not support a conclusion that defendant, when he took possession of a firearm, was under unlawful and present, imminent, and impending threat of death or serious bodily injury. State v. Monroe, 233 N.C. App. 563, 756 S.E.2d 376, 2014 N.C. App. LEXIS 370 (2014), aff'd, 367 N.C. 771 , 768 S.E.2d 292, 2015 N.C. LEXIS 33 (2015).

Trial court did not err, much less plainly err, in its instruction on constructive possession or its instruction on possession of a firearm by a felon. The instruction was an accurate statement of the law, and was supported by the evidence. State v. Neal, 2021-NCCOA-565, 280 N.C. App. 101, 866 S.E.2d 311, 2021- NCCOA-565, 2021 N.C. App. LEXIS 585 (2021).

Actual Possession Jury Instruction. —

Evidence was sufficient to support an instruction on the theory of actual possession of a firearm because it showed that defendant had “personal custody” of the firearm, as the officer testified that when he opened the front passenger door where defendant was sitting he observed a weapon in between the seat and the passenger side door, right where defendant’s right hand was, and the State admitted into evidence without objection a picture of the firearm as it was found in the vehicle. State v. Chevallier, 824 N.C. App. 440, 824 S.E.2d 440 (2019).

Plain Error from Failure to Address Jury Questions. —

Where the State pursued only constructive possession under G.S. 14-415.1(a) , the evidence only possibly supported an instruction on actual possession, and the jury was instructed on both types of possession, the trial court’s failure to adequately address the jury’s questions regarding possession resulted in plain error. State v. Perry, 222 N.C. App. 813, 731 S.E.2d 714, 2012 N.C. App. LEXIS 1101 (2012).

Conviction Upheld. —

Defendant’s conviction of robbery with a firearm, G.S. 14-87 , and possession of a handgun by a felon, G.S. 14-415.1 , was affirmed; the trial court did not err in admitting the in-court and out-of-court identification by a store clerk of defendant as the perpetrator of a robbery. The State presented a sufficient foundation for the admission of a videotape of the robbery into evidence. State v. Lawson, 159 N.C. App. 534, 583 S.E.2d 354, 2003 N.C. App. LEXIS 1495 (2003).

Ineffective Assistance of Counsel Not Found. —

Defendant’s conviction of robbery with a firearm, G.S. 14-87 , and possession of a handgun by a felon, G.S. 14-415.1 , was affirmed; defendant did not receive ineffective assistance of counsel pursuant to the test in G.S. 15A-1443(a) , as counsel did not err in failing to object to the identification of defendant, or to the introduction of a videotape of the robbery, based on a legitimate trial strategy. State v. Lawson, 159 N.C. App. 534, 583 S.E.2d 354, 2003 N.C. App. LEXIS 1495 (2003).

Trial court did not err in entering conviction against defendant on the charge of possession of a firearm by a convicted felon, because defendant pled guilty to that charge and did not show that the exemption allowing for him to have the firearm within his own home or lawful place of business applied; defendant did not show that he had received ineffective assistance of counsel in pleading guilty to the charge because he could not show that an exemption to that law applied. State v. Allah, 168 N.C. App. 190, 607 S.E.2d 311, 2005 N.C. App. LEXIS 144 (2005).

Evidence Sufficient to Prove Elements of Offense. —

Admission of a certified copy of defendant’s prior felony conviction and the victim’s testimony that defendant had a gun was sufficient to support defendant’s conviction for possession of a firearm by a felon. State v. Hussey, 194 N.C. App. 516, 669 S.E.2d 864, 2008 N.C. App. LEXIS 2236 (2008).

Defendant was properly convicted of possession of a firearm by a felon in violation of G.S. 14-415.1(a) because the victim identified him and recorded the license plate numbers on an automobile parked in her driveway while the detective identified the automobile as registered to defendant; moreover, the victim observed a man matching defendant’s description flee the scene, and defendant was seen at the crime scene. State v. McNeil, 209 N.C. App. 654, 707 S.E.2d 674, 2011 N.C. App. LEXIS 296 (2011).

Evidence was sufficient to convict defendants of possession of a firearm by a convicted felon, in violation of G.S. 14-32(a), because the State of North Carolina’s evidence showed that (1) defendants arrived together; (2) one defendant handed the other defendant the handgun that the other defendant used to shoot the victim; (3) one defendant encouraged the other defendant to continue shooting the victim; (4) defendants fled the scene together in the same car; and (5) both defendants stipulated that they had been convicted of a prior felony. State v. Wade, 213 N.C. App. 481, 714 S.E.2d 451, 2011 N.C. App. LEXIS 1498 (2011).

Evidence Was Sufficient to Find Constructive Possession. —

Trial court correctly denied defendant’s motions to dismiss and submitted the charge of possession of a firearm by a felon to the jury as the evidence was sufficient to raise a jury question regarding defendant’s possession of the gun; defendant jointly owned the car with his girlfriend and had been the sole driver of the car the entire day of the robbery, and the State’s evidence indicated that the gun could readily be seen when the driver’s door was opened, suggesting that defendant must have known of the presence of the gun. State v. Clark, 159 N.C. App. 520, 583 S.E.2d 680, 2003 N.C. App. LEXIS 1491 (2003).

Instruction that the jury could have inferred defendant’s constructive possession of a gun based on his control over the area where it was found, between his leg and the inner console of the vehicle he was driving, was proper. State v. Inman, 174 N.C. App. 567, 621 S.E.2d 306, 2005 N.C. App. LEXIS 2480 (2005).

Sufficient evidence showed defendant possessed a firearm, even though defendant did not exclusively control the room in which the firearm was found and was not present during the search during which the firearm was found, because the evidence consisted of (1) a cable installation receipt and cable bill with defendant’s name and the house’s address found in the room, (2) the fact that defendant’s name and Social Security number were on that account, (3) defendant’s paystub, (4) an envelope addressed to a name defendant used as an alias, (5) a Father’s Day card and gift card addressed to the alias and “Daddy,” (6) recent photographs of defendant, (7) the fact that, while the room looked lived in and contained men’s clothing, the two other males known to have lived at the house had been in prison for over a year, (8) defendant’s sighting at the house before and after the search, and (9) the fact that defendant was arrested near the house with cocaine in defendant’s possession, letting a jury reasonably infer defendant’s link to the contraband. State v. Bradshaw, 366 N.C. 90 , 728 S.E.2d 345, 2012 N.C. LEXIS 414 (2012).

Evidence that defendant was driving the rental car when the officer initiated the traffic stop and that defendant was aware of the contents of the vehicle was sufficient to support a finding that defendant was in constructive possession of the weapon that was in the glovebox. State v. Mitchell, 224 N.C. App. 171, 735 S.E.2d 438, 2012 N.C. App. LEXIS 1374 (2012).

Trial court properly denied defendant’s motion to dismiss the charge of possession of a firearm by a felon because defendant stipulated that he had been convicted of a felony in July 2016, and the evidence sufficiently supported the conclusion that he was in constructive possession of the firearm at issue where defendant was the sole occupant of the home, all clothing in the home appeared to belong to him, the firearm was found under an end table in the living room, defendant was the only recipient of mail at the address in question, and one such piece of mail addressed to defendant included ammunition that matched the firearm found. State v. Robinson, 264 N.C. App. 135, 823 S.E.2d 167, 2019 N.C. App. LEXIS 144 (2019).

State of North Carolina presented substantial evidence of defendant’s constructive possession of a firearm as the firearm was found in a backpack in the bed of defendant’s pickup truck and defendant’s power to control the contents of defendant’s vehicle was sufficient to present an inference of defendant’s knowledge and possession of the firearm that was found in the vehicle. State v. Kennedy, 276 N.C. App. 381, 856 S.E.2d 893, 2021- NCCOA-99, 2021 N.C. App. LEXIS 108 (2021).

Evidence Was Insufficient to Find Constructive Possession. —

Evidence was insufficient to support defendant’s conviction of possession of a firearm by a felon because the only evidence of a gun or defendant’s possession was his statement that he had a gun before the officers arrived at the house, the house was not his home or residence, no gun was found in the area where defendant claimed he had dropped it, there was no evidence of any gunshots fired, and there was no proof of loss or injury. That a pistol magazine was found in the house defendant had broken into and shell casings and bullet fragments and holes were found at defendant’s home were insufficient to show possession of a firearm. State v. Wynn, 276 N.C. App. 411, 856 S.E.2d 919, 2021- NCCOA-103, 2021 N.C. App. LEXIS 105 (2021).

Evidence Sufficient to Establish Possession. —

Evidence was sufficient to establish defendant’s possession of the gun found under his jacket. Because defendant acknowledged his possession of the gun in his written statement to the police, it effectively disposed of his argument that there was no evidence of possession. State v. Jones, 161 N.C. App. 615, 589 S.E.2d 374, 2003 N.C. App. LEXIS 2264 (2003).

Defendant’s motion to dismiss was properly denied because the evidence was sufficient to establish defendant’s possession of the gun found under his jacket. Because defendant acknowledged his possession of the gun in his written statement to the police, it effectively disposed of his argument that there was no evidence of possession. State v. Jones, 161 N.C. App. 615, 589 S.E.2d 374, 2003 N.C. App. LEXIS 2264 (2003).

Evidence that (1) shortly after a shooting incident a witness saw defendant jumping over a fence into her back yard, near a shed where a rifle was found; (2) a garbage bag defendant was carrying had firearm discharge residue in it; and (3) holes in the bag were consistent with the discharge of a firearm from inside the bag, was sufficient to prove that defendant, a convicted felon, possessed a firearm in violation of G.S. 14-415.1(a) . State v. Glasco, 160 N.C. App. 150, 585 S.E.2d 257, 2003 N.C. App. LEXIS 1729 (2003).

Trial court properly denied defendant’s motion to dismiss the possession of a firearm by a convicted felon charge because the State presented ample circumstantial evidence suggesting that defendant had possession of a gun before he was tackled to the ground by police officers. State v. Barksdale, 181 N.C. App. 302, 638 S.E.2d 579, 2007 N.C. App. LEXIS 75 (2007).

Evidence that defendant was the owner of the vehicle, had exclusive possession of the vehicle, the vehicle contained other items belonging to defendant, defendant stated that everything in the cargo area belonged to defendant, and the handgun was wrapped in a man’s jacket, was sufficient to support defendant’s conviction for possession of a firearm by a felon pursuant to G.S. 14-415.1 . State v. Smith, 192 N.C. App. 690, 666 S.E.2d 191, 2008 N.C. App. LEXIS 1661 (2008), cert. denied, 560 U.S. 925, 130 S. Ct. 3325, 176 L. Ed. 2d 1221, 2010 U.S. LEXIS 4297 (2010).

Deputy’s testimony that an object fell from defendant’s person, a .357 revolved was found where the detective saw the object fall, the victim was known the carry a .40 caliber weapon, the victim was shot with a .40 caliber weapon, and the victim’s weapon was never found all supported the denial of defendant’s motion to dismiss the charge of possession of a firearm by a felon. State v. Dawkins, 196 N.C. App. 719, 675 S.E.2d 402, 2009 N.C. App. LEXIS 513 (2009).

Evidence was sufficient to permit a reasonable jury to infer that defendant possessed a firearm in violation of G.S. 14-415.1(a) because (1) a probation officer went to defendant’s cabin for a routine probation visit; (2) when defendant saw the officer driving up to the cabin, defendant ran inside the cabin; (3) the officer frisked defendant and found in his pockets several spent .45 caliber shells that smelled like they had just recently been fired; (4) defendant told the officer that defendant had been outside shooting that day but had already got rid of the weapon; (5) defendant took the officer outside and showed the officer two boxes of ammunition within a foot of the cabin; (6) the boxes also contained magazines for a firearm, two of which were loaded and one was empty; (7) the officer searched the area and found a handgun in the undergrowth approximately 25 to 30 feet from the door to the cabin along a trail from the road up to the cabin; and (8) defendant told the officer that the gun belonged to defendant’s parent and asked if defendant could take it back to the parent. State v. Taylor, 203 N.C. App. 448, 691 S.E.2d 755, 2010 N.C. App. LEXIS 650 (2010), cert. dismissed, 366 N.C. 408 , 736 S.E.2d 180, 2012 N.C. LEXIS 1170 (2012).

When defendant was convicted of carrying a concealed weapon, G.S. 14-269(a1), and possession of a firearm by a convicted felon, G.S. 14-415.1(a) , sufficient evidence supported a finding that defendant actually or constructively possessed the firearm at issue because the gun was found in a van driven by defendant, the gun was found on the floor next to the driver’s seat, defendant admitted he owned the gun, a witness testified he saw defendant in possession of the gun on the afternoon in question, and a police detective corroborated the witness’s testimony. State v. Best, 214 N.C. App. 39, 713 S.E.2d 556, 2011 N.C. App. LEXIS 1638 (2011).

No Double Jeopardy Violation. —

That a cocaine possession offense was used to support both an underlying substantive felony (the “felon” portion of the offense of “felon in possession of a firearm”) and a habitual felon indictment did not subject defendant to double jeopardy. State v. Glasco, 160 N.C. App. 150, 585 S.E.2d 257, 2003 N.C. App. LEXIS 1729 (2003).

Double Jeopardy Violated. —

In a case in which defendant appealed his 11 convictions for possession of a firearm by a convicted felon, in violation of G.S. 14-415.1 , defendant successfully argued that there was double jeopardy violation. There was no indication that the North Carolina Legislature intended for G.S. 14-415.1 (a) to impose multiple penalties for his simultaneous possession of multiple firearms, and, while the trial court arrested judgment on 10 of the convictions, defendant could be placed in double jeopardy since the State could issue new indictments against defendant upon the arrested judgments. State v. Whitaker, 201 N.C. App. 190, 689 S.E.2d 395, 2009 N.C. App. LEXIS 2198 (2009), cert. denied, 560 U.S. 972, 130 S. Ct. 3428, 177 L. Ed. 2d 337, 2010 U.S. LEXIS 4774 (2010), aff'd, 364 N.C. 404 , 700 S.E.2d 215, 2010 N.C. LEXIS 737 (2010).

Involuntary Commitment. —

Trial court did not err by conducting a fact-based analysis in determining whether defendant was charged with a violent crime under G.S. 15A-1003(a) or in concluding that defendant was charged with a violent crime because although violence was not an element of the offenses for which he was charged, possession of a firearm by a felon, G.S. 14-415.1 , and resisting an officer, G.S. 14-223 , an assault with a deadly weapon in violation of G.S. 14-33(c)(1) was involved in the commission of the crime of resisting an officer. In re Murdock, 222 N.C. App. 45, 730 S.E.2d 811, 2012 N.C. App. LEXIS 947 (2012).

Pardons. —

Although plaintiff’s pardon for a prior kidnapping conviction was conditional the plain and unambiguous language of this statute stated that plaintiff’s pardon made the statute inapplicable to him, and as the statute did not apply to plaintiff, there was no basis for the trial court to consider the argument that the statute was unconstitutional as applied to plaintiff. Booth v. State, 227 N.C. App. 484, 742 S.E.2d 637, 2013 N.C. App. LEXIS 606 (2013).

Restoration of Rights. —

In a firearms dispute, a prior decision determined that the current version of the statute relating to possession of a firearm by a felon did not apply here, as the convicted felon in this case had his firearm rights restored. Therefore, no real and existing controversy remained, and the declaratory relief sought had been received. Booth v. State, 244 N.C. App. 376, 781 S.E.2d 88, 2015 N.C. App. LEXIS 1042 (2015).

OPINIONS OF ATTORNEY GENERAL

An ex-felon found in possession of a firearm could be prosecuted under the Felony Firearms Act, even though he may have lawfully possessed it prior to the December 1, 1995, amendment since his restoration of rights under Chapter 13, when read in conjunction with this section, expressly prohibits the possession of firearms regardless of the date of felony conviction; the General Assembly clearly intended this section’s application to be retroactive. See opinion of Attorney General to Michael P. Martin, Assistant Chief Counsel, Department of the Treasury Bureau of Alcohol, Tobacco, and Firearms, 1997 N.C. Op. Att'y Gen. 52 (8/21/97).

§ 14-415.2. [Repealed]

Repealed by Session Laws 1975, c. 870, s. 3.

§ 14-415.3. Possession of a firearm or weapon of mass destruction by persons acquitted of certain crimes by reason of insanity or persons determined to be incapable to proceed prohibited.

  1. It is unlawful for the following persons to purchase, own, possess, or have in the person’s custody, care, or control, any firearm or any weapon of mass death and destruction as defined by G.S. 14-288.8(c):
    1. A person who has been acquitted by reason of insanity of any crime set out in G.S. 14-415.1(b) or any violation of G.S. 14-33(b)(1), 14-33(b)(8), or 14-34.
    2. A person who has been determined to lack capacity to proceed as provided in G.S. 15A-1002 for any crime set out in G.S. 14-415.1(b) or any violation of G.S. 14-33(b)(1), 14-33(b)(8), or 14-34.
  2. A violation of this section is a Class H felony. Any firearm or weapon of mass death and destruction lawfully seized for a violation of this section shall be forfeited to the State and disposed of as provided in G.S. 15-11.1 .
  3. The provisions of this section shall not apply to a person whose rights have been restored pursuant to G.S. 14-409.42 .

History. 1994, Ex. Sess., c. 13, s. 1; 2013-369, s. 10; 2015-195, s. 11(k).

Editor’s Note.

Section 14-33(b)(1), referred to in this section, was repealed by Session Laws 1995, c. 507, s. 19.5(b).

Effect of Amendments.

Session Laws 2013-369, s. 10, effective October 1, 2013, added subsection (c). For applicability, see Editor’s note.

Session Laws 2015-195, s. 11(k), effective August 5, 2015, substituted “G.S. 14-409.42” for “G.S. 122C-54.1” at the end of subsection (c).

§ 14-415.4. Restoration of firearms rights.

  1. Definitions. —  The following definitions apply in this section:
    1. Firearms rights. — The legal right in this State of a person to purchase, own, possess, or have in the person’s custody, care, or control any firearm or any weapon of mass death and destruction as those terms are defined in G.S. 14-415.1 and G.S. 14-288.8(c).
    2. Nonviolent felony. — The term nonviolent felony does not include any felony that is a Class A, Class B1, or Class B2 felony. Also, the term nonviolent felony does not include any Class C through Class I felony that is one of the following:
      1. An offense that includes assault as an essential element of the offense.
      2. An offense that includes the possession or use of a firearm or other deadly weapon as an essential or nonessential element of the offense, or the offender was in possession of a firearm or other deadly weapon at the time of the commission of the offense.
      3. An offense for which the offender was armed with or used a firearm or other deadly weapon.
      4. An offense for which the offender must register under Article 27A of Chapter 14 of the General Statutes.
  2. Purpose. —  It is the purpose of this section to establish a procedure that allows a North Carolina resident who was convicted of a single nonviolent felony and whose citizenship rights have been restored pursuant to Chapter 13 of the General Statutes to petition the court to remove the petitioner’s disentitlement under G.S. 14-415.1 and to restore the person’s firearms rights in this State. If the single nonviolent felony conviction was an out-of-state conviction or a federal conviction, then the North Carolina resident shall show proof of the restoration of his or her civil rights and the right to possess a firearm in the jurisdiction where the conviction occurred. Restoration of a person’s firearms rights under this section means that the person may purchase, own, possess, or have in the person’s custody, care, or control any firearm or any weapon of mass death and destruction as those terms are defined in G.S. 14-415.1 and G.S. 14-288.8(c) without being in violation of G.S. 14-415.1, if otherwise qualified.
  3. Petition for Restoration of Firearms Rights. —  A person who was convicted of a nonviolent felony in North Carolina but whose civil rights have been restored pursuant to Chapter 13 of the General Statutes for a period of at least 20 years may petition the district court in the district where the person resides to restore the person’s firearms rights pursuant to this section. A person who was convicted of a nonviolent felony in a jurisdiction other than North Carolina may petition the district court in the district where the person resides to restore the person’s firearms rights pursuant to this section only if (i) a period of at least 20 years has passed since the unconditional discharge or unconditional pardon of the person by the agency having jurisdiction where the conviction occurred, and (ii) the person’s civil rights, including the right to possess a firearm, have been restored, pursuant to the law of the jurisdiction where the conviction occurred. The court may restore a petitioner’s firearms rights after a hearing in court if the court determines that the petitioner meets the criteria set out in this section and is not otherwise disqualified to have that right restored.
  4. Criteria. —  The court may grant a petition to restore a person’s firearms rights under this section if the petitioner satisfies all of the following criteria and is not otherwise disqualified to have that right restored:
    1. The petitioner is a resident of North Carolina and has been a resident of the State for one year or longer immediately preceding the filing of the petition.
    2. The petitioner has only one felony conviction and that conviction is for a nonviolent felony. For purposes of this subdivision, multiple felony convictions arising out of the same event and consolidated for sentencing shall count as one felony only.
    3. The petitioner’s rights of citizenship have been restored pursuant to Chapter 13 of the General Statutes or, if the conviction was in a jurisdiction other than North Carolina, have been restored, pursuant to the laws of the jurisdiction where the conviction occurred, and the petitioner satisfied the applicable 20-year requirement set forth in subsection (c) of this section, before the date of the filing of the petition.
    4. The petitioner has not been convicted under the laws of the United States, the laws of this State, or the laws of any other state of any misdemeanor as described in subdivision (6) of subsection (e) of this section since the conviction of the nonviolent felony.
    5. The petitioner submits his or her fingerprints to the sheriff of the county in which the petitioner resides for a criminal background check pursuant to G.S. 143B-959 .
    6. The petitioner is not disqualified under subsection (e) of this section.
  5. Disqualifiers Requiring Denial of Petition. —  The court shall deny the petition to restore the firearms rights of any petitioner if the court finds any of the following:
    1. The petitioner is ineligible to purchase, own, possess, or have in the person’s custody, care, or control a firearm under the provisions of any law in North Carolina other than G.S. 14-415.1 .
    2. The petitioner is under indictment for a felony or a finding of probable cause exists against the petitioner for a felony.
    3. The petitioner is a fugitive from justice.
    4. The petitioner is an unlawful user of, or addicted to, marijuana, alcohol, or any depressant, stimulant, or narcotic drug, or any other controlled substance as defined in 21 U.S.C. § 802.
    5. The petitioner is or has been dishonorably discharged from the Armed Forces of the United States.
    6. The petitioner is or has been adjudicated guilty of or received a prayer for judgment continued or suspended sentence for one or more crimes of violence constituting a misdemeanor, including a misdemeanor under Article 8 of Chapter 14 of the General Statutes, or a misdemeanor under G.S. 14-225.2 , 14-226.1, 14-258.1, 14-269.2, 14-269.3, 14-269.4, 14-269.6, 14-276.1, 14-277, 14-277.1, 14-277.2, 14-277.3, 14-281.1, 14-283, 14-288.2, 14-288.4(a)(1) or (2), 14-288.6, 14-288.9, former 14-288.12, former 14-288.13, former 14-288.14, 14-288.20A, 14-318.2, 14-415.21(b), or 14-415.26(d), or a substantially similar out-of-state or federal offense.
    7. The petitioner has had entry of a prayer for judgment continued for a felony, in addition to the nonviolent felony conviction.
    8. The petitioner is free on bond or personal recognizance pending trial, appeal, or sentencing for a crime which would prohibit the person from having his or her firearms rights restored under this section.
    9. An emergency order, ex parte order, or protective order has been issued pursuant to Chapter 50B of the General Statutes or a similar out-of-state or federal order has been issued against the petitioner and the court order issued is still in effect.
    10. A civil no-contact order has been issued pursuant to Chapter 50C of the General Statutes or a similar out-of-state or federal order has been issued against the petitioner and the court order issued is still in effect.
  6. Notice of Hearing and Hearing Procedure. —  The clerk of court shall provide notice of the hearing to the district attorney in the district in which the petition is filed at least four weeks before the hearing on the matter. The petitioner may present evidence in support of the petition, and the district attorney may present evidence in opposition to the requested restoration of firearms rights or may otherwise demonstrate the reasons why the petition should be denied. The burden is on the petitioner to establish by a preponderance of the evidence that the petitioner is qualified to receive the restoration under subsection (d) of this section and that the petitioner is not disqualified under subsection (e) of this section.
  7. Right to Petition Again Upon Denial of Petition. —  If the court denies the petition, the person may again petition the court for restoration of his or her firearms rights in accordance with this section one year from the date of the denial of the original petition. However, if the sole basis for the denial of the petition are the grounds set out under G.S. 14-415.4(e)(9) or (10), then the person does not have to wait for one year from the date of denial of the original petition but may petition again upon the expiration of the order.
  8. Certified Copies of Order Granting Petition to Sheriff, Department of Justice, and National Instant Background Check System Index. —  If the court grants the petition to restore the petitioner’s firearms rights, the clerk of court shall forward within 10 days of the entry of the order a certified copy of the order to the sheriff of the county in which the petitioner resides, the North Carolina Department of Justice, and the denied person’s file of the national instant criminal background check system index.
  9. Restoration is Not an Expunction or Pardon. —  A restoration of firearms rights under this section does not result in the expunction of any criminal history record information nor does it constitute a pardon.
  10. Automatic Revocation Upon Conviction of a Subsequent Felony. —  If a person’s firearms rights are restored under this section and the person is convicted of a second or subsequent felony, then the person’s firearms rights are automatically revoked and shall not be restored under this section.
  11. Fee. —  A person who files a petition for restoration of firearms rights under this section shall pay the clerk of court a fee of two hundred dollars ($200.00) at the time the petition is filed. Fees collected under this subsection shall be deposited in the General Fund. This subsection does not apply to petitions filed by an indigent.
  12. Criminal Offense to Submit False Information. —  A person who knowingly and willfully submits false information under this section is guilty of a Class 1 misdemeanor. In addition, a person who is convicted of an offense under this subsection is permanently prohibited from petitioning to restore his or her firearms rights under this section.

History. 2010-108, s. 1; 2011-2, s. 1; 2011-183, s. 14; 2012-12, s. 2(aa); 2014-100, s. 17.1(bb); 2015-195, s. 6; 2021-116, s. 1.2(a).

Editor’s Note.

Session Laws 2010-108, s. 6, provides: “The Attorney General shall send a copy of this act to the United States Attorney General, the United States Department of Justice, and the federal Bureau of Alcohol, Tobacco, and Firearms for review and shall ask for a determination of the following: (i) whether a person who has his or her firearms rights restored pursuant to this act can legally purchase and possess a firearm under federal law, and (ii) whether a person who falls under the exception to the State Felony Firearms Act regarding antitrust violations, unfair trade practices, or restraints of trade as enacted by this act can legally purchase and possess a firearm under federal law. The Attorney General shall report the response to the Joint Legislative Corrections, Crime Control and Juvenile Justice Oversight Committee.”

Session Laws 2010-108, s. 7, as amended by Session Laws 2011-2, s. 1, made this section effective February 1, 2011, and made subsection ( l ) of this section applicable to offenses committed on or after that date.

Session Laws 2010-108, s. 7, as amended by Session Laws 2011-2, s. 1, further provides: “Prosecutions for offenses committed before the effective date of this act [February 1, 2011] are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2015-195, s. 18, made the amendment to subdivision (a)(1) of this section by Session Laws 2015-195, s. 6, applicable to restorations granted before on, or after August 5, 2015, and provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2021-116, s. 1.2(b), made the amendments to subsection (c) and subdivision (d)(3) by Session Laws 2021-116, s. 1.2(a), effective December 1, 2021, and applicable to petitions filed on or after that date.

Effect of Amendments.

Session Laws 2011-183, s. 14, effective June 20, 2011, substituted “Armed Forces of the Unites States” for “armed forces” in subdivision (e)(5).

Session Laws 2012-12, s. 2(aa), effective October 1, 2012, near the end of subdivision (e)(6), inserted “former” in three places and added “14-288.20A.”

Session Laws 2014-100, s. 17.1(bb), effective July 1, 2014, substituted “G.S. 143B-959” for “G.S. 114-19.28” in subdivision (d)(5).

Session Laws 2015-195, s. 6, effective August 5, 2015, deleted the last sentence of subdivision (a)(1), which read: “The term does not include any weapon defined in G.S. 14-409(a).” For applicability, see editor’s note.

Session Laws 2021-116, s. 1.2(a), in subsection (c), substituted “only if (i) a period of at least 20 years has passed since the unconditional discharge or unconditional pardon of the person by the agency having jurisdiction where the conviction occurred, and (ii) the” for “only if the” and substituted the second occurrence of “occurred” for “occurred, for a period of at least 20 years”; and substituted “and the petitioner satisfied the applicable 20-year requirement set forth in subsection (c) of this section, before the date” for “for a period of at least 20 years before the date” in subdivision (d)(3). For effective date and applicability, see editor’s note.

§§ 14-415.5 through 14-415.9.

Reserved for future codification purposes.

Article 54B. Concealed Handgun Permit.

§ 14-415.10. Definitions. [Effective until January 1, 2023]

The following definitions apply to this Article:

  1. Carry a concealed handgun. — The term includes possession of a concealed handgun.

    (1a) Deployed or deployment. — Any military duty that removes a military permittee from the permittee’s county of residence during which time the permittee’s permit expires or will expire.

  2. Handgun. — A firearm that has a short stock and is designed to be held and fired by the use of a single hand.

    (2a) Military permittee. — A person who holds a permit who is also a member of the Armed Forces of the United States, the reserve components of the Armed Forces of the United States, the North Carolina Army National Guard, or the North Carolina Air National Guard.

  3. Permit. — A concealed handgun permit issued in accordance with the provisions of this Article.

    (3a) Proof of deployment. — A copy of the military permittee’s deployment orders or other written notification from the permittee’s command indicating the start and end date of deployment and that orders the permittee to travel outside the permittee’s county of residence.

  4. Qualified former sworn law enforcement officer. — An individual who retired from service as a law enforcement officer with a local, State, campus police, or company police agency in North Carolina, other than for reasons of mental disability, who has been retired as a sworn law enforcement officer two years or less from the date of the permit application, and who satisfies all of the following:
    1. Immediately before retirement, the individual was a qualified law enforcement officer with a local, State, or company police agency in North Carolina.
    2. The individual has a nonforfeitable right to benefits under the retirement plan of the local, State, or company police agency as a law enforcement officer; or has 20 or more aggregate years of law enforcement service and has retired from a company police agency that does not have a retirement plan; or has 20 or more aggregate years of part-time or auxiliary law enforcement service.
    3. The individual is not prohibited by State or federal law from receiving a firearm.

      (4a) Qualified retired correctional officer. — An individual who retired from service as a State correctional officer, other than for reasons of mental disability, who has been retired as a correctional officer two years or less from the date of the permit application and who meets all of the following criteria:

      a. Immediately before retirement, the individual met firearms training standards of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety and was authorized by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety to carry a handgun in the course of assigned duties.

      b. The individual retired in good standing and was never a subject of a disciplinary action by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety that would have prevented the individual from carrying a handgun.

      c. The individual has a vested right to benefits under the Teachers’ and State Employees’ Retirement System of North Carolina established under Article 1 of Chapter 135 of the General Statutes.

    4. The individual is not prohibited by State or federal law from receiving a firearm.

      (4b) Qualified retired law enforcement officer. — An individual who meets the definition of “qualified retired law enforcement officer” contained in section 926C of Title 18 of the United States Code.

      (4c) Qualified retired probation or parole certified officer. — An individual who retired from service as a State probation or parole certified officer, other than for reasons of mental disability, who has been retired as a probation or parole certified officer two years or less from the date of the permit application and who meets all of the following criteria:

      a. Immediately before retirement, the individual met firearms training standards of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety and was authorized by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety to carry a handgun in the course of duty.

      b. The individual retired in good standing and was never a subject of a disciplinary action by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety that would have prevented the individual from carrying a handgun.

      c. The individual has a vested right to benefits under the Teachers’ and State Employees’ Retirement System of North Carolina established under Article 1 of Chapter 135 of the General Statutes.

      d. The individual is not prohibited by State or federal law from receiving a firearm.

  5. Qualified sworn law enforcement officer. — A law enforcement officer employed by a local, State, campus police, or company police agency in North Carolina who satisfies all of the following:
    1. The individual is authorized by the agency to carry a handgun in the course of duty.
    2. The individual is not the subject of a disciplinary action by the agency that prevents the carrying of a handgun.
    3. The individual meets the requirements established by the agency regarding handguns.

History. 1995, c. 398, s. 1; 1997-274, s. 2; 1997-441, ss. 2, 3; 2005-231, ss. 4, 5; 2005-232, s. 1; 2007-427, s. 1; 2009-307, s. 2; 2010-104, s. 1; 2011-145, s. 19.1(h); 2011-183, s. 15; 2013-369, s. 24; 2014-119, s. 7(a); 2017-186, s. 2(jj), 3(a).

Editor’s Note.

Subdivision (4a) was originally enacted as subdivision (6) by Session Laws 2007-427, s. 1. It has been renumbered as subdivision (4a) to maintain alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2017-186, s. 2(jj), identified the subdivision being amended as subdivision (4b), but it was actually subdivision (4c). The amendment was implemented in subdivision (4c) at the direction of the Revisor of Statutes.

Session Laws 2017-186, s. 3(a), provides: “The Revisor of Statutes shall change any additional references in the General Statutes to the ‘Division of Adult Correction’ to the ‘Division of Adult Correction and Juvenile Justice’.”

Effect of Amendments.

Session Laws, 2005-231, ss. 4 and 5, effective July 28, 2005, inserted “campus police” in the introductory paragraphs of subdivisions (4) and (5).

Session Laws 2005-232, s. 1, effective July 28, 2005, added subdivisions (1a), (2a) and (3a).

Session Laws 2009-307, s. 2, effective January 1, 2010, and applicable to permit applications and renewal applications submitted on or after that date, added “or has 20 or more aggregate years of part-time or auxiliary law enforcement service” at the end of the first sentence of subdivision (4)b., and made related punctuation changes.

Session Laws 2010-104, s. 1, effective December 1, 2010, and applicable to probation and parole officers who retired before, on, or after December 1, 2010, added subdivision (4b).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2011-183, s. 15, effective June 20, 2011, substituted “Armed Forces of the United States, the reserve components of the Armed Forces” for “armed forces of the United States, the armed forces reserves” in subdivision (2a).

Session Laws 2013-369, s. 24, effective October 1, 2013, rewrote subdivision (4a). For applicability, see Editor’s note.

Session Laws 2014-119, s. 7(a), effective September 18, 2014, added subdivision (4c). See Editors notes.

Session Laws 2017-186, s. 2(jj), effective December 1, 2017, inserted “and Juvenile Justice” throughout subdivision (4c).

Legal Periodicals.

For article, “Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute,” see 74 N.C.L. Rev. 2214 (1996).

For 1997 Legislative Survey, see 20 Campbell L. Rev. 417.

For note, “Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations,” see 68 Duke L.J. 176 (2018).

For article, “From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller,” see 67 Duke L.J. 1433 (2018).

For article, “You Can Lead a Horse to Water: Heller and the Future of Second Amendment Scholarship,” see 68 Duke L.J. Online 1 (2018).

For article, “The Constitutional Politics Heller Launched,” see 68 Duke L.J. Online 8 (2018).

For article, “Comment on Ruben and Blocher: Too Damn Many Cases, and an Absent Supreme Court,” 68 Duke L.J. Online 17 (2018).

For article, “Romanticism Meets Realism in Second Amendment Adjudication,” see 68 Duke L.J. Online 33 (2018).

For article, “A Close Reading of an Excellent Distant Reading of Heller in the Courts,” see 68 Duke L.J. Online 41 (2018).

For article, “Is the Second Amendment A Second-Class Right?,” see 68 Duke L.J. Online 58 (2018).

For article, “Data Indicate Second Amendment Underenforcement,” see 68 Duke L.J. Online 79 (2018).

CASE NOTES

Search and Seizure. —

Where defendant was with a group of men, began walking away from officers, and was found with a gun, suppression was warranted because the officers lacked reasonable suspicion to detain defendant based on, inter alia, an individual’s presence at a gas station, a prior arrest history of another individual, lawful possession and display of a firearm by a companion, defendant’s submission of an identification card showing an out-of-district address, and presence in a high crime area at night. United States v. Black, 707 F.3d 531, 2013 U.S. App. LEXIS 4251 (4th Cir. 2013).

§ 14-415.10. Definitions. [Effective January 1, 2023]

The following definitions apply to this Article:

  1. Carry a concealed handgun. — The term includes possession of a concealed handgun.

    (1a) Deployed or deployment. — Any military duty that removes a military permittee from the permittee’s county of residence during which time the permittee’s permit expires or will expire.

  2. Handgun. — A firearm that has a short stock and is designed to be held and fired by the use of a single hand.

    (2a) Military permittee. — A person who holds a permit who is also a member of the Armed Forces of the United States, the reserve components of the Armed Forces of the United States, the North Carolina Army National Guard, or the North Carolina Air National Guard.

  3. Permit. — A concealed handgun permit issued in accordance with the provisions of this Article.

    (3a) Proof of deployment. — A copy of the military permittee’s deployment orders or other written notification from the permittee’s command indicating the start and end date of deployment and that orders the permittee to travel outside the permittee’s county of residence.

  4. Qualified former sworn law enforcement officer. — An individual who retired from service as a law enforcement officer with a local, State, campus police, or company police agency in North Carolina, other than for reasons of mental disability, who has been retired as a sworn law enforcement officer two years or less from the date of the permit application, and who satisfies all of the following:
    1. Immediately before retirement, the individual was a qualified law enforcement officer with a local, State, or company police agency in North Carolina.
    2. The individual has a nonforfeitable right to benefits under the retirement plan of the local, State, or company police agency as a law enforcement officer; or has 20 or more aggregate years of law enforcement service and has retired from a company police agency that does not have a retirement plan; or has 20 or more aggregate years of part-time or auxiliary law enforcement service.
    3. The individual is not prohibited by State or federal law from receiving a firearm.

      (4a) Qualified retired correctional officer. — An individual who retired from service as a State correctional officer, other than for reasons of mental disability, who has been retired as a correctional officer two years or less from the date of the permit application and who meets all of the following criteria:

      a. Immediately before retirement, the individual met firearms training standards of the Division of Prisons of the Department of Adult Correction and was authorized by the Division of Prisons of the Department of Adult Correction to carry a handgun in the course of assigned duties.

      b. The individual retired in good standing and was never a subject of a disciplinary action by the Division of Prisons of the Department of Adult Correction that would have prevented the individual from carrying a handgun.

      c. The individual has a vested right to benefits under the Teachers’ and State Employees’ Retirement System of North Carolina established under Article 1 of Chapter 135 of the General Statutes.

    4. The individual is not prohibited by State or federal law from receiving a firearm.

      (4b) Qualified retired law enforcement officer. — An individual who meets the definition of “qualified retired law enforcement officer” contained in section 926C of Title 18 of the United States Code.

      (4c) Qualified retired probation or parole certified officer. — An individual who retired from service as a State probation or parole certified officer, other than for reasons of mental disability, who has been retired as a probation or parole certified officer two years or less from the date of the permit application and who meets all of the following criteria:

      a. Immediately before retirement, the individual met firearms training standards of the Division of Community Supervision and Reentry of the Department of Adult Correction and was authorized by the Division of Community Supervision and Reentry of the Department of Adult Correction to carry a handgun in the course of duty.

      b. The individual retired in good standing and was never a subject of a disciplinary action by the Division of Community Supervision and Reentry of the Department of Adult Correction that would have prevented the individual from carrying a handgun.

      c. The individual has a vested right to benefits under the Teachers’ and State Employees’ Retirement System of North Carolina established under Article 1 of Chapter 135 of the General Statutes.

      d. The individual is not prohibited by State or federal law from receiving a firearm.

  5. Qualified sworn law enforcement officer. — A law enforcement officer employed by a local, State, campus police, or company police agency in North Carolina who satisfies all of the following:
    1. The individual is authorized by the agency to carry a handgun in the course of duty.
    2. The individual is not the subject of a disciplinary action by the agency that prevents the carrying of a handgun.
    3. The individual meets the requirements established by the agency regarding handguns.

History. 1995, c. 398, s. 1; 1997-274, s. 2; 1997-441, ss. 2, 3; 2005-231, ss. 4, 5; 2005-232, s. 1; 2007-427, s. 1; 2009-307, s. 2; 2010-104, s. 1; 2011-145, s. 19.1(h); 2011-183, s. 15; 2013-369, s. 24; 2014-119, s. 7(a); 2017-186, s. 2(jj), 3(a); 2021-180, s. 19C.9(kk).

Editor’s Note.

Subdivision (4a) was originally enacted as subdivision (6) by Session Laws 2007-427, s. 1. It has been renumbered as subdivision (4a) to maintain alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2017-186, s. 2(jj), identified the subdivision being amended as subdivision (4b), but it was actually subdivision (4c). The amendment was implemented in subdivision (4c) at the direction of the Revisor of Statutes.

Session Laws 2017-186, s. 3(a), provides: “The Revisor of Statutes shall change any additional references in the General Statutes to the ‘Division of Adult Correction’ to the ‘Division of Adult Correction and Juvenile Justice’.”

Session Laws 2021-180, s. 19C.9(aaaaa), made the amendments to subdivisions (4a) and (4c) of this section by Session Laws 2021-180, s. 19C.9(kk), effective January 1, 2023, and further provides: “On and after that date, any references or directives in this act to the Division of Adult Correction and Juvenile Justice, the Section of Adult Correction in the Division of Adult Correction and Juvenile Justice, the Section of Juvenile Justice of the Division of Adult Correction and Juvenile Justice, or the Section of Community Corrections of the Division of Adult Correction and Juvenile Justice shall be construed to apply to the appropriate division of either the Department of Public Safety or the Department of Adult Correction pursuant to the departmental changes enacted by this section.”

Session Laws 2021-180, s. 1.1, provides: “This act shall be known as the ‘Current Operations Appropriations Act of 2021.’”

Session Laws 2021-180, s. 43.7, is a severability clause.

Effect of Amendments.

Session Laws, 2005-231, ss. 4 and 5, effective July 28, 2005, inserted “campus police” in the introductory paragraphs of subdivisions (4) and (5).

Session Laws 2005-232, s. 1, effective July 28, 2005, added subdivisions (1a), (2a) and (3a).

Session Laws 2009-307, s. 2, effective January 1, 2010, and applicable to permit applications and renewal applications submitted on or after that date, added “or has 20 or more aggregate years of part-time or auxiliary law enforcement service” at the end of the first sentence of subdivision (4)b., and made related punctuation changes.

Session Laws 2010-104, s. 1, effective December 1, 2010, and applicable to probation and parole officers who retired before, on, or after December 1, 2010, added subdivision (4b).

Session Laws 2011-145, s. 19.1(h), effective January 1, 2012, substituted “Division of Adult Correction of the Department of Public Safety” for “Department of Correction.”

Session Laws 2011-183, s. 15, effective June 20, 2011, substituted “Armed Forces of the United States, the reserve components of the Armed Forces” for “armed forces of the United States, the armed forces reserves” in subdivision (2a).

Session Laws 2013-369, s. 24, effective October 1, 2013, rewrote subdivision (4a). For applicability, see Editor’s note.

Session Laws 2014-119, s. 7(a), effective September 18, 2014, added subdivision (4c). See Editors notes.

Session Laws 2017-186, s. 2(jj), effective December 1, 2017, inserted “and Juvenile Justice” throughout subdivision (4c).

Session Laws 2021-180, s. 19C.9(kk), in sub-subdivisions (4a)a. and b., substituted “the Division of Prisons of the Department of Adult Correction” for “the Division of Adult Correction and Juvenile Justice of the Department of Public Safety”; and, in sub-subdivisions (4c)a. and b., substituted “the Division of Community Supervision and Reentry of the Department of Adult Correction” for “the Division of Adult Correction and Juvenile Justice of the Department of Public Safety”. For effective date and applicability, see editor's note.

Legal Periodicals.

For article, “Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute,” see 74 N.C.L. Rev. 2214 (1996).

For 1997 Legislative Survey, see 20 Campbell L. Rev. 417.

For note, “Leave Your Guns at Home: The Constitutionality of a Prohibition on Carrying Firearms at Political Demonstrations,” see 68 Duke L.J. 176 (2018).

For article, “From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller,” see 67 Duke L.J. 1433 (2018).

For article, “You Can Lead a Horse to Water: Heller and the Future of Second Amendment Scholarship,” see 68 Duke L.J. Online 1 (2018).

For article, “The Constitutional Politics Heller Launched,” see 68 Duke L.J. Online 8 (2018).

For article, “Comment on Ruben and Blocher: Too Damn Many Cases, and an Absent Supreme Court,” 68 Duke L.J. Online 17 (2018).

For article, “Romanticism Meets Realism in Second Amendment Adjudication,” see 68 Duke L.J. Online 33 (2018).

For article, “A Close Reading of an Excellent Distant Reading of Heller in the Courts,” see 68 Duke L.J. Online 41 (2018).

For article, “Is the Second Amendment A Second-Class Right?,” see 68 Duke L.J. Online 58 (2018).

For article, “Data Indicate Second Amendment Underenforcement,” see 68 Duke L.J. Online 79 (2018).

CASE NOTES

Search and Seizure. —

Where defendant was with a group of men, began walking away from officers, and was found with a gun, suppression was warranted because the officers lacked reasonable suspicion to detain defendant based on, inter alia, an individual’s presence at a gas station, a prior arrest history of another individual, lawful possession and display of a firearm by a companion, defendant’s submission of an identification card showing an out-of-district address, and presence in a high crime area at night. United States v. Black, 707 F.3d 531, 2013 U.S. App. LEXIS 4251 (4th Cir. 2013).

§ 14-415.11. Permit to carry concealed handgun; scope of permit.

  1. Any person who has a concealed handgun permit may carry a concealed handgun unless otherwise specifically prohibited by law. The person shall carry the permit together with valid identification whenever the person is carrying a concealed handgun, shall disclose to any law enforcement officer that the person holds a valid permit and is carrying a concealed handgun when approached or addressed by the officer, and shall display both the permit and the proper identification upon the request of a law enforcement officer. In addition to these requirements, a military permittee whose permit has expired during deployment may carry a concealed handgun during the 90 days following the end of deployment and before the permit is renewed provided the permittee also displays proof of deployment to any law enforcement officer.
  2. The sheriff shall issue a permit to carry a concealed handgun to a person who qualifies for a permit under G.S. 14-415.12 . The permit shall be valid throughout the State for a period of five years from the date of issuance.
  3. Except as provided in G.S. 14-415.27 , a permit does not authorize a person to carry a concealed handgun in any of the following:
    1. Areas prohibited by G.S. 14-269.2 , 14-269.3, and 14-277.2.
    2. Areas prohibited by G.S. 14-269.4 , except as allowed under G.S. 14-269.4 (6).
    3. In an area prohibited by rule adopted under G.S. 120-32.1 .
    4. In any area prohibited by 18 U.S.C. § 922 or any other federal law.
    5. In a law enforcement or correctional facility.
    6. In a building housing only State or federal offices.
    7. In an office of the State or federal government that is not located in a building exclusively occupied by the State or federal government.
    8. On any private premises where notice that carrying a concealed handgun is prohibited by the posting of a conspicuous notice or statement by the person in legal possession or control of the premises. (c1) Any person who has a concealed handgun permit may carry a concealed handgun on the grounds or waters of a park within the State Parks System as defined in G.S. 143B-135.44 .

      (c2) It shall be unlawful for a person, with or without a permit, to carry a concealed handgun while consuming alcohol or at any time while the person has remaining in the person’s body any alcohol or in the person’s blood a controlled substance previously consumed, but a person does not violate this condition if a controlled substance in the person’s blood was lawfully obtained and taken in therapeutically appropriate amounts or if the person is on the person’s own property.

      (c3) As provided in G.S. 14-269.4(5), it shall be lawful for a person to carry any firearm openly, or to carry a concealed handgun with a concealed carry permit, at any State-owned rest area, at any State-owned rest stop along the highways, and at any State-owned hunting and fishing reservation.

  4. A person who is issued a permit shall notify the sheriff who issued the permit of any change in the person’s permanent address within 30 days after the change of address. If a permit is lost or destroyed, the person to whom the permit was issued shall notify the sheriff who issued the permit of the loss or destruction of the permit. A person may obtain a duplicate permit by submitting to the sheriff a notarized statement that the permit was lost or destroyed and paying the required duplicate permit fee.

History. 1995, c. 398, s. 1; c. 507, s. 22.1(c); c. 509, s. 135.3(e); 1997, c. 238, s. 6; 2000-140, s. 103; 2000-191, s. 5; 2005-232, s. 3; 2011-268, s. 14; 2015-241, s. 14.30(cc).

Editor’s Note.

Session Laws 2011-268, which, in s. 14, amended this section by rewriting subsection (c), adding subsections (c1) and (c3), and adding the subsection (c2) designation and therein making minor stylistic changes, provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2005-232, s. 3, effective July 28, 2005, added the last sentence of subsection (a).

Session Laws 2011-268, s. 14, effective December 1, 2011, rewrote subsection (c) to the extent that a detailed comparison is impracticable; added subsections (c1) and (c3); and added the subsection (c2) designation, and therein made minor stylistic changes. For applicability, see Editor’s Note.

Session Laws 2015-241, s. 14.30(cc), effective July 1, 2015, substituted “G.S. 143B-135.44” for “G.S. 113-44.9” in subsection (c1).

Legal Periodicals.

For article, “Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute,” see 74 N.C.L. Rev. 2214 (1996).

CASE NOTES

Police Officer Entitled to Stop and Frisk Defendant. —

Defendant’s motion to suppress was denied because a police officer approached defendant and addressed defendant, but there was no indication that defendant informed the officer at any time that defendant had any legal right to carry a concealed weapon, nor was there any evidence that defendant had a valid concealed carry permit. Thus, the handgun found on defendant’s person during a stop and frisk search by the officer was admissible into evidence. State v. Sutton, 232 N.C. App. 667, 754 S.E.2d 464, 2014 N.C. App. LEXIS 261 (2014).

Officers had reasonable suspicion under the totality of the circumstances to conduct an investigatory stop of defendant in response to the tip identifying him as possessing a firearm at a gas station because of defendant’s “blading” after making eye contact with the officer in his marked car and uniform, his movements away from the officer as he was being approached, the officer’s training in identifying armed suspects, and defendant’s failure to comply with this section when approached by the officers. State v. Malachi, 264 N.C. App. 233, 825 S.E.2d 666, 2019 N.C. App. LEXIS 172 (2019).

§ 14-415.12. Criteria to qualify for the issuance of a permit.

  1. The sheriff shall issue a permit to an applicant if the applicant qualifies under the following criteria:
    1. The applicant is a citizen of the United States or has been lawfully admitted for permanent residence as defined in 8 U.S.C. § 1101(a)(20), and has been a resident of the State 30 days or longer immediately preceding the filing of the application.
    2. The applicant is 21 years of age or older.
    3. The applicant does not suffer from a physical or mental infirmity that prevents the safe handling of a handgun.
    4. The applicant has successfully completed an approved firearms safety and training course which involves the actual firing of handguns and instruction in the laws of this State governing the carrying of a concealed handgun and the use of deadly force. The North Carolina Criminal Justice Education and Training Standards Commission shall prepare and publish general guidelines for courses and qualifications of instructors which would satisfy the requirements of this subdivision. An approved course shall be any course which satisfies the requirements of this subdivision and is certified or sponsored by:
      1. The North Carolina Criminal Justice Education and Training Standards Commission,
      2. The National Rifle Association, or
      3. A law enforcement agency, college, private or public institution or organization, or firearms training school, taught by instructors certified by the North Carolina Criminal Justice Education and Training Standards Commission or the National Rifle Association.

        Every instructor of an approved course shall file a copy of the firearms course description, outline, and proof of certification annually, or upon modification of the course if more frequently, with the North Carolina Criminal Justice Education and Training Standards Commission.

    5. The applicant is not disqualified under subsection (b) of this section.
  2. The sheriff shall deny a permit to an applicant who:
    1. Is ineligible to own, possess, or receive a firearm under the provisions of State or federal law.
    2. Is under indictment or against whom a finding of probable cause exists for a felony.
    3. Has been adjudicated guilty in any court of a felony, unless: (i) the felony is an offense that pertains to antitrust violations, unfair trade practices, or restraints of trade, or (ii) the person’s firearms rights have been restored pursuant to G.S. 14-415.4 .
    4. Is a fugitive from justice.
    5. Is an unlawful user of, or addicted to marijuana, alcohol, or any depressant, stimulant, or narcotic drug, or any other controlled substance as defined in 21 U.S.C. § 802.
    6. Is currently, or has been previously adjudicated by a court or administratively determined by a governmental agency whose decisions are subject to judicial review to be, lacking mental capacity or mentally ill. Receipt of previous consultative services or outpatient treatment alone shall not disqualify an applicant under this subdivision.
    7. Is or has been discharged from the Armed Forces of the United States under conditions other than honorable.
    8. Except as provided in subdivision (8a), (8b), or (8c) of this section, is or has been adjudicated guilty of or received a prayer for judgment continued or suspended sentence for one or more crimes of violence constituting a misdemeanor, including but not limited to, a violation of a misdemeanor under Article 8 of Chapter 14 of the General Statutes except for a violation of G.S. 14-33(a), or a violation of a misdemeanor under G.S. 14-226.1 , 4-258.1, 14-269.2, 14-269.3, 14-269.4, 14-269.6, 14-277, 14-277.1, 14-277.2, 14-283 except for a violation involving fireworks exempted under G.S. 14-414 , 14-288.2, 14-288.4(a)(1), 14-288.6, 14-288.9, former 14-288.12, former 14-288.13, former 14-288.14, 14-415.21(b), or 14-415.26(d) within three years prior to the date on which the application is submitted. (8a) Is or has been adjudicated guilty of or received a prayer for judgment continued or suspended sentence for one or more crimes of violence constituting a misdemeanor under G.S. 14-33(c)(1), 14-33(c)(2), 14-33(c)(3), 14-33(d), 14-277.3A, 14-318.2, 14-134.3, 50B-4.1, or former G.S. 14-277.3 .

      (8b) Is prohibited from possessing a firearm pursuant to 18 U.S.C. § 922(g) as a result of a conviction of a misdemeanor crime of domestic violence.

      (8c) Has been adjudicated guilty of or received a prayer for judgment continued or suspended sentence for one or more crimes involving an assault or a threat to assault a law enforcement officer, probation or parole officer, person employed at a State or local detention facility, firefighter, emergency medical technician, medical responder, or emergency department personnel.

    9. Has had entry of a prayer for judgment continued for a criminal offense which would disqualify the person from obtaining a concealed handgun permit.
    10. Is free on bond or personal recognizance pending trial, appeal, or sentencing for a crime which would disqualify him from obtaining a concealed handgun permit.
    11. Has been convicted of an impaired driving offense under G.S. 20-138.1 , 20-138.2, or 20-138.3 within three years prior to the date on which the application is submitted.
  3. An applicant shall not be ineligible to receive a concealed carry permit under subdivision (6) of subsection (b) of this section because of an adjudication of mental incapacity or illness or an involuntary commitment to mental health services if the individual’s rights have been restored under G.S. 14-409.42 .

History. 1995, c. 398, s. 1; c. 509, s. 135.3(d); 1997-441, s. 4; 2007-427, s. 5; 2008-210, s. 3(b); 2009-58, s. 1; 2010-108, s. 5; 2011-2, s. 1; 2011-183, s. 16; 2012-12, s. 2(bb); 2013-369, s. 11; 2015-195, ss. 7, 11(l), 17.

Editor’s Note.

Session Laws 2010-108, s. 6, provides: “The Attorney General shall send a copy of this act to the United States Attorney General, the United States Department of Justice, and the federal Bureau of Alcohol, Tobacco, and Firearms for review and shall ask for a determination of the following: (i) whether a person who has his or her firearms rights restored pursuant to this act can legally purchase and possess a firearm under federal law, and (ii) whether a person who falls under the exception to the State Felony Firearms Act regarding antitrust violations, unfair trade practices, or restraints of trade as enacted by this act can legally purchase and possess a firearm under federal law. The Attorney General shall report the response to the Joint Legislative Corrections, Crime Control and Juvenile Justice Oversight Committee.”

Session Laws 2015-195, s. 18, made the amendment to this section by Session Laws 2015-195, s. 7, applicable to permit applications submitted on or after July 1, 2015, and provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2007-427, s. 5, effective December 1, 2007, and applicable to offenses committed on or after that date, substituted “14-415.21(b), or 14-415.26(d)” for “or 14-415.21(b)” at the end of subdivision (b)(8).

Session Laws 2008-210, s. 3(b), effective December 1, 2008, added subsection (c).

Session Laws 2009-58, s. 1, effective June 5, 2009, in subdivision (b)(8), substituted “14-277.3A” for “14-277.3” near the middle, added “or former G.S. 14-277.3 ” at the end, and made a related stylistic change.

Session Laws 2010-108, s. 5, as amended by Session Laws 2011-2, s. 1, effective February 1, 2011, added “unless: (i) the felony is an offense that pertains to antitrust violations, unfair trade practices, or restraints of trade, or (ii) the person’s firearms rights have been restored pursuant to G.S. 14-415.4 ” in subdivision (b)(3).

Session Laws 2011-183, s. 16, effective June 20, 2011, substituted “Armed Forces of the Unites States” for “armed forces” in subdivision (b)(7).

Session Laws 2012-12, s. 2(bb), effective October 1, 2012, near the end of subdivision (b)(8), inserted “former” in three places and added “14-288.20A.”

Session Laws 2013-369, s. 11, effective October 1, 2013, inserted “an adjudication of mental incapacity or illness or an” in subsection (c). For applicability, see Editor’s note.

Session Laws 2015-195, s. 7, effective July 1, 2015, rewrote subdivision (b)(8); and added subdivisions (b)(8a), (8b), (8c). For applicability, see editor’s note.

Session Laws 2015-195, s. 11(l), effective August 5, 2015, substituted “G.S. 14-409.42” for “G.S. 122C-54.1” at the end of subsection (c).

Session Laws 2015-195, s. 17, effective August 5, 2015, inserted “or has been lawfully admitted for permanent residence as defined in 8 U.S.C. § 1101(a)(20)” in subdivision (a)(1).

Legal Periodicals.

For article, “Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute,” see 74 N.C.L. Rev. 2214 (1996).

For 1997 legislative survey, see 20 Campbell L. Rev. 417.

For article, “Do the Mentally Ill Have a Right to Bear Arms?,” see 48 Wake Forest L. Rev. 1 (2013).

CASE NOTES

Constitutionality. —

Denial of an applicant’s request for a concealed handgun permit pursuant to G.S. 14-415.12 (b)(8) because he had been conviction of assault on a female under G.S. 14-33 was proper as G.S. 14-415.12 was not unconstitutional as applied to the applicant because the Second Amendment, U.S. Const. amend. II, did not extend to an individual’s right to conceal a weapon. Kelly v. Riley, 223 N.C. App. 261, 733 S.E.2d 194, 2012 N.C. App. LEXIS 1252 (2012).

Assault on Female. —

Applicant’s request for a concealed handgun permit was properly denied as: (1) the criteria for revoking a permit under G.S. 14-415.18 did not apply as the applicant’s prior permit had expired and had not been revoked prior to its expiration; (2) under G.S. 14-415.12(b)(8), the sheriff was to deny a permit if an applicant had been convicted of a misdemeanor under N.C. Gen. Stat. ch. 14, art. 8; (3) the applicant had been convicted of assault on a female under G.S. 14-33(c)(2), which was a misdemeanor violation under art. 8.; and (4) the applicant was not entitled to renew his permit under G.S. 14-415.16 . Kelly v. Riley, 223 N.C. App. 261, 733 S.E.2d 194, 2012 N.C. App. LEXIS 1252 (2012).

Permit Renewal. —

G.S. 14-415.16 specifically governs renewal of a concealed handgun permit and does not require a hearing prior to the nonrenewal of an applicant’s concealed handgun permit; instead, the statute provides that a concealed handgun permit should only be renewed if the permittee remains qualified to have a permit under G.S. 14-415.12 . Kelly v. Riley, 223 N.C. App. 261, 733 S.E.2d 194, 2012 N.C. App. LEXIS 1252 (2012).

District court erred in affirming a sheriff’s office denial of an applicant’s concealed handgun permit renewal application because the applicant was deprived of his procedural due process safeguards where the written notice did not specify which subsection of the statute that he did not satisfy and did not provide him with an explanation of the factual basis for the denial, he was not afforded a hearing on appeal or given an opportunity to submit even minimal contradictory information before the district court made its final determination, and he was first informed of the precise grounds for the denial of his renewal application in the district court’s order. Debruhl v. Mecklenburg Cty. Sheriff's Office, 259 N.C. App. 50, 815 S.E.2d 1, 2018 N.C. App. LEXIS 362 (2018).

Convicted Felon. —

Irregardless of whether a criminal defendant pleads guilty or no contest, where a felony conviction is ultimately adjudicated, the defendant is thereafter a convicted felon for the purposes of G.S. 14-404 and prohibited from obtaining a hand gun. Friend v. State, 169 N.C. App. 99, 609 S.E.2d 473, 2005 N.C. App. LEXIS 535 (2005).

Substance Abuse Standard. —

District court, on remand, in applying the substance abuse subsection of the concealed handgun permit statute, was to use the definition of an “addict” from a federal statute that was incorporated into G.S. 14-415.12 as the standard to apply when adjudicating whether an applicant was addicted and, therefore, disqualified under the substance abuse subsection of the statute. In re Duvall, 268 N.C. App. 14, 834 S.E.2d 177, 2019 N.C. App. LEXIS 838 (2019).

Mental Health Considerations. —

Denial of an application for a concealed handgun permit was inappropriate because the applicant was not afforded fundamental due process by being provided any prior and meaningful notice that the applicant’s mental health and ability to safely handle a firearm under the concealed handgun permit statute would be at issue in the district court. In re Duvall, 268 N.C. App. 14, 834 S.E.2d 177, 2019 N.C. App. LEXIS 838 (2019).

§ 14-415.12A. Firearms safety and training course exemption for qualified sworn law enforcement officers and certain other persons.

  1. A person who is a qualified sworn law enforcement officer, a qualified former sworn law enforcement officer, a qualified retired correctional officer, or a qualified retired probation or parole certified officer is deemed to have satisfied the requirement under G.S. 14-415.12(a)(4) that an applicant successfully complete an approved firearms safety and training course.

    (a1) An individual who is a qualified retired law enforcement officer and has met the standards, as approved by the North Carolina Criminal Justice Education and Training Standards Commission, for handgun qualification for active law enforcement officers within the last 12 months is deemed to have satisfied the requirement under G.S. 14-415.12(a)(4) that an applicant successfully complete an approved firearms safety and training course.

  2. A person who is licensed or registered by the North Carolina Private Protective Services Board under Article 1 of Chapter 74C of the General Statutes as an armed security guard, who also has a firearm registration permit issued by the Board in compliance with G.S. 74C-13 , is deemed to have satisfied the requirement under G.S. 14-415.12(a)(4) that an applicant successfully complete an approved firearms safety and training course.

History. 1997-274, s. 1; 2005-211, s. 2; 2010-104, s. 2; 2014-119, s. 7(b); 2015-105, s. 1; 2015-264, s. 36(a).

Editor’s Note.

Session Laws 2010-104, s. 2, which substituted “law enforcement officer, a qualified former sworn law enforcement officer, or a qualified retired probation or parole certified officer” for “law enforcement officer or a qualified former sworn law enforcement officer” in subsection (a), was applicable to probation and parole officers who retired before, on, or after December 1, 2010.

Effect of Amendments.

Session Laws 2010-104, s. 2, effective December 1, 2010, and applicable to probation and parole officers who retired before, on, or after December 1, 2010, substituted “law enforcement officer, a qualified former sworn law enforcement officer, or a qualified retired probation or parole certified officer” for “law enforcement officer or a qualified former sworn law enforcement officer” in subsection (a).

Session Laws 2014-119, s. 7(b), effective September 18, 2014, inserted “a qualified retired correctional officer,” near the middle of subsection (a).

Session Laws 2015-105, s. 1, effective October 1, 2015, added subsection (a1).

Session Laws 2015-264, s. 36(a), effective October 1, 2015, inserted “Criminal” preceding “Justice Education and Training Standards Commission” in subsection (a1).

§ 14-415.13. Application for a permit; fingerprints.

  1. A person shall apply to the sheriff of the county in which the person resides to obtain a concealed handgun permit. The applicant shall submit to the sheriff all of the following:
    1. An application, completed under oath, on a form provided by the sheriff, and such application form must be provided by the sheriff electronically. The sheriff shall not request employment information, character affidavits, additional background checks, photographs, or other information unless specifically permitted by this Article.
    2. A nonrefundable permit fee.
    3. A full set of fingerprints of the applicant administered by the sheriff.
    4. An original certificate of completion of an approved course, adopted and distributed by the North Carolina Criminal Justice Education and Training Standards Commission, signed by the certified instructor of the course attesting to the successful completion of the course by the applicant which shall verify that the applicant is competent with a handgun and knowledgeable about the laws governing the carrying of a concealed handgun and the use of deadly force.
    5. A release, in a form to be prescribed by the Administrative Office of the Courts, that authorizes and requires disclosure to the sheriff of any records concerning the mental health or capacity of the applicant to be used for the sole purpose of determining whether the applicant is disqualified for a permit under the provisions of G.S. 14-415.12 . This provision does not prohibit submitting information related to involuntary commitment to the National Instant Criminal Background Check System (NICS).
  2. The sheriff shall submit the fingerprints to the State Bureau of Investigation for a records check of State and national databases. The State Bureau of Investigation shall submit the fingerprints to the Federal Bureau of Investigation as necessary. The sheriff shall determine the criminal and background history of an applicant also by conducting a check through the National Instant Criminal Background Check System (NICS). The cost of processing the set of fingerprints shall be charged to an applicant as provided by G.S. 14-415.19 .

History. 1995, c. 398, s. 1; c. 507, ss. 22.2(a), 22.1(b); 2006-39, s. 2; 2011-268, s. 15; 2015-195, s. 11(g).

Effect of Amendments.

Session Laws 2006-39, s. 2, effective June 30, 2006, added the next-to-last sentence in subsection (b).

Session Laws 2011-268, s. 15, effective December 1, 2011, and applicable to offenses committed on or after that date, in subdivision (a)(5), added “to be used for the sole purpose of determining whether the applicant is disqualified for a permit under the provisions of G.S. 14-415.12 ” in the first sentence, and added the last sentence.

Session Laws 2015-195, s. 11(g), effective October 1, 2015, in subdivision (a)(1), added “sheriff, and such application form must be provided by the sheriff electronically” at the end of the first sentence, and added the second sentence. For applicability, see editor’s note.

Legal Periodicals.

For article, “Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute,” see 74 N.C.L. Rev. 2214 (1996).

§ 14-415.14. Application form to be provided by sheriff; information to be included in application form.

  1. The sheriff shall make permit applications readily available at the office of the sheriff or at other public offices in the sheriff’s jurisdiction. The permit application shall be in triplicate, in a form to be prescribed by the State Bureau of Investigation, and shall include the following information with regard to the applicant: name, address, physical description, signature, date of birth, social security number, military status, law enforcement status, and the drivers license number or State identification card number of the applicant if used for identification in applying for the permit.
  2. The permit application shall also contain a warning substantially as follows:“CAUTION: Federal law and State law on the possession of handguns and firearms may differ. If you are prohibited by federal law from possessing a handgun or a firearm, you may be prosecuted in federal court. A State permit is not a defense to a federal prosecution.”
  3. Any person or entity who is presented by the applicant or by the sheriff with an original or photocopied release form as described in G.S. 14-415.13(a)(5) shall promptly disclose to the sheriff any records concerning the mental health or capacity of the applicant who signed the form and authorized the release of the records.

History. 1995, c. 398, s. 1; 1997-274, s. 3; 2000-140, s. 103; 2000-191, s. 3; 2011-268, s. 16; 2014-115, s. 24(a).

Effect of Amendments.

Session Laws 2014-115, s. 24(a), effective August 11, 2014, substituted “State Bureau of Investigation” for “Administrative Office of the Courts” in the second sentence of subsection (a).

§ 14-415.15. Issuance or denial of permit.

  1. Except as permitted under subsection (b) of this section, within 45 days after receipt of the items listed in G.S. 14-415.13 from an applicant, and receipt of the required records concerning the mental health or capacity of the applicant, the sheriff shall either issue or deny the permit. The sheriff may conduct any investigation necessary to determine the qualification or competency of the person applying for the permit, including record checks. The sheriff shall make the request for any records concerning the mental health or capacity of the applicant within 10 days of receipt of the items listed in G.S. 14-415.13 . No person, company, mental health provider, or governmental entity may charge additional fees to the applicant for background checks conducted under this subsection. A permit shall not be denied unless the applicant is determined to be ineligible pursuant to G.S. 14-415.12 .
  2. Upon presentment to the sheriff of the items required under G.S. 14-415.13 (a)(1), (2), and (3), the sheriff may issue a temporary permit for a period not to exceed 45 days to a person who the sheriff reasonably believes is in an emergency situation that may constitute a risk of safety to the person, the person’s family or property. The applicant may submit proof of a protective order issued under G.S. 50B-3 for the protection of the applicant as evidence of an emergency situation. The temporary permit may not be renewed and may be revoked by the sheriff without a hearing.
  3. A person’s application for a permit shall be denied only if the applicant fails to qualify under the criteria listed in this Article. If the sheriff denies the application for a permit, the sheriff shall, within 45 days, notify the applicant in writing, stating the grounds for denial. An applicant may appeal the denial, revocation, or nonrenewal of a permit by petitioning a district court judge of the district in which the application was filed. The determination by the court, on appeal, shall be upon the facts, the law, and the reasonableness of the sheriff’s refusal. The determination by the court shall be final.

History. 1995, c. 398, s. 1; 2005-343, s. 1; 2011-268, s. 17; 2015-195, s. 14.

Editor’s Note.

Session Laws 2011-268, which, in s. 17, amended this section by substituting “45 days” for ‘’90 days” throughout the section, and inserting “and receipt of the required records concerning the mental health or capacity of the applicant” in the first sentence of subsection (a), provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2015-195, s. 18, made the last three sentences in subsection (a), as added by Session Laws 2015-195, s. 14, applicable to applications submitted on or after October 1, 2015, and provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2015-195, s. 14, effective October 1, 2015, added the last three sentences of subsection (a). For applicability, see editor’s note.

Legal Periodicals.

For article, “Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute,” see 74 N.C.L. Rev. 2214 (1996).

For comment, “A Fighting Chance for Outlaws: Strict Scrutiny of North Carolina’s Felony Firearms Act,” see 32 Campbell L. Rev. 333 (2010).

§ 14-415.16. Renewal of permit.

  1. At least 45 days prior to the expiration date of a permit, the sheriff of the county where the permit was issued shall send a written notice to the permittee explaining that the permit is about to expire and including information about the requirements for renewal of the permit. The notice shall be sent by first class mail to the last known address of the permittee. Failure to receive a renewal notice shall not relieve a permittee of requirements imposed in this section for renewal of the permit.
  2. The holder of a permit shall apply to renew the permit within the 90-day period prior to its expiration date by filing with the sheriff of the county in which the person resides a renewal form provided by the sheriff’s office, an affidavit stating that the permittee remains qualified under the criteria provided in this Article, a newly administered full set of the permittee’s fingerprints, and a renewal fee.
  3. Upon receipt of the completed renewal application and the appropriate payment of fees, the sheriff shall determine if the permittee remains qualified to hold a permit in accordance with the provisions of G.S. 14-415.12 . The permittee’s criminal history shall be updated, including with another inquiry of the National Instant Criminal Background Check System (NICS), and the sheriff may waive the requirement of taking another firearms safety and training course. If the permittee applies for a renewal of the permit within the 90-day period prior to its expiration date and if the permittee remains qualified to have a permit under G.S. 14-415.12 , the sheriff shall renew the permit. The permit of a permittee who complies with this section shall remain valid beyond the expiration date of the permit until the permittee either receives a renewal permit or is denied a renewal permit by the sheriff.
  4. No fingerprints shall be required for a renewal permit if the applicant’s fingerprints were submitted to the State Bureau of Investigation after June 30, 2001, on the Automated Fingerprint Information System (AFIS) as prescribed by the State Bureau of Investigation.
  5. If the permittee does not apply to renew the permit prior to its expiration date, but does apply to renew the permit within 60 days after the permit expires, the sheriff may waive the requirement of taking another firearms safety and training course. This subsection does not extend the expiration date of the permit.

History. 1995, c. 398, s. 1; c. 507, s. 22.2(b); 2000-140, s. 103; 2000-191, s. 1; 2009-307, s. 1; 2011-268, s. 18.

CASE NOTES

Hearing Not Required. —

G.S. 14-415.16 specifically governs renewal of a concealed handgun permit and does not require a hearing prior to the nonrenewal of an applicant’s concealed handgun permit; instead, the statute provides that a concealed handgun permit should only be renewed if the permittee remains qualified to have a permit under G.S. 14-415.12 . Kelly v. Riley, 223 N.C. App. 261, 733 S.E.2d 194, 2012 N.C. App. LEXIS 1252 (2012).

Denial of Renewal Application Proper. —

Applicant’s request for a concealed handgun permit was properly denied as: (1) the criteria for revoking a permit under G.S. 14-415.18 did not apply as the applicant’s prior permit had expired and had not been revoked prior to its expiration; (2) under G.S. 14-415.12(b)(8), the sheriff was to deny a permit if an applicant had been convicted of a misdemeanor under N.C. Gen. Stat. ch. 14, art. 8; (3) the applicant had been convicted of assault on a female under G.S. 14-33(c)(2), which was a misdemeanor violation under art. 8.; and (4) the applicant was not entitled to renew his permit under G.S. 14-415.16 . Kelly v. Riley, 223 N.C. App. 261, 733 S.E.2d 194, 2012 N.C. App. LEXIS 1252 (2012).

§ 14-415.16A. Permit extensions and renewals for deployed military permittees.

  1. A deployed military permittee whose permit will expire during the permittee’s deployment, or the permittee’s agent, may apply to the sheriff for an extension of the military permittee’s permit by providing the sheriff with a copy of the permittee’s proof of deployment. Upon receipt of the proof, the sheriff shall extend the permit for a period to end 90 days after the permittee’s deployment is scheduled to end. A permit that has been extended under this section shall be valid throughout the State during the period of its extension.
  2. A military permittee’s permit that is not extended under subsection (a) of this section and that expires during deployment shall remain valid during the deployment and for 90 days after the end of the deployment as if the permit had not expired. The military permittee may carry a concealed handgun during this period provided the permittee meets all the requirements of G.S. 14-415.11(a) .
  3. A military permittee under subsection (a) or subsection (b) of this section shall have 90 days after the end of the permittee’s deployment to renew the permit. In addition to the requirements of G.S. 14-415.16 , the permittee shall provide to the sheriff proof of deployment. The sheriff shall renew the permit upon receipt of this documentation provided the permittee otherwise remains qualified to hold a concealed handgun permit.

History. 2005-232, s. 2.

§ 14-415.17. Permit; sheriff to retain a list of permittees; confidentiality of list and permit application information; availability to law enforcement agencies.

  1. The permit shall be in a certificate form, as prescribed by the State Bureau of Investigation, that is approximately the size of a North Carolina drivers license. It shall bear the signature, name, address, date of birth, and the drivers license identification number used in applying for the permit.
  2. The sheriff shall maintain a listing, including the identifying information, of those persons who are issued a permit. Within five days of the date a permit is issued, the sheriff shall send a copy of the permit to the State Bureau of Investigation.
  3. Except as provided otherwise by this subsection, the list of permit holders and the information collected by the sheriff to process an application for a permit are confidential and are not a public record under G.S. 132-1 . The sheriff shall make the list of permit holders and the permit information available upon request to all State and local law enforcement agencies. The State Bureau of Investigation shall make the list of permit holders and the information collected by the sheriff to process an application for a permit available to law enforcement officers and clerks of court on a statewide system.

History. 1995, c. 398, s. 1; 2011-268, s. 19; 2013-369, s. 12; 2014-115, s. 24(b).

Effect of Amendments.

Session Laws 2011-268, s. 19, effective December 1, 2011, in the first paragraph, deleted “social security number of the permittee, and” preceding “the drivers license” in the second sentence, and substituted “shall maintain a listing, including the identifying information, of those persons who are issued a permit” for “shall maintain a listing of those persons who are issued a permit and any pertinent information regarding the issued permit” in the third sentence. For applicability, see Editor’s Note.

Session Laws 2013-369, s. 12, effective October 1, 2013, rewrote the section heading, which formerly read “Permit; sheriff to retain and make available to law enforcement agencies a list of permittees”; designated the former provisions of this section as present subsections (a) and (b); in subsection (b), deleted the former second and fourth sentences, which read “The permit information shall be available upon request to all State and local law enforcement agencies” and “The State Bureau of Investigation shall make this information available to law enforcement officers and clerks of court on a statewide system”; and added subsection (c). For applicability, see Editor’s note.

Session Laws 2014-115, s. 24(b), effective August 11, 2014, substituted “State Bureau of Investigation” for “Administrative Office of the Courts” in the first sentence of subsection (a).

§ 14-415.18. Revocation or suspension of permit.

  1. The sheriff of the county where the permit was issued or the sheriff of the county where the person resides may revoke a permit subsequent to a hearing for any of the following reasons:
    1. Fraud or intentional and material misrepresentation in the obtaining of a permit.
    2. Misuse of a permit, including lending or giving a permit or a duplicate permit to another person, materially altering a permit, or using a permit with the intent to unlawfully cause harm to a person or property. It shall not be considered misuse of a permit to provide a duplicate of the permit to a vender for record-keeping purposes.
    3. The doing of an act or existence of a condition which would have been grounds for the denial of the permit by the sheriff.
    4. The violation of any of the terms of this Article.
    5. Repealed by Session Laws 2013-369, s. 20, effective October 1, 2013.A permittee may appeal the revocation, or nonrenewal of a permit by petitioning a district court judge of the district in which the applicant resides. The determination by the court, on appeal, shall be upon the facts, the law, and the reasonableness of the sheriff’s refusal. (a1) The sheriff of the county where the permit was issued or the sheriff of the county where the person resides shall revoke a permit of any permittee who is adjudicated guilty of or receives a prayer for judgment continued for a crime which would have disqualified the permittee from initially receiving a permit. Upon determining that a permit should be revoked pursuant to this subsection, the sheriff shall provide written notice to the permittee, pursuant to the provisions of G.S. 1A-1 , Rule 4(j), that the permit is revoked upon the service of the notice. The notice shall provide the permittee with information on the process to appeal the revocation.Upon receipt of the written notice of revocation, the permittee shall surrender the permit to the sheriff. Any law enforcement officer serving the notice is authorized to take immediate possession of the permit from the permittee. If the notice is served by means other than by a law enforcement officer, the permittee shall surrender the permit to the sheriff no later than 48 hours after service of the notice.A permittee may appeal the revocation of a permit pursuant to this subsection by petitioning a district court judge of the district in which the permittee resides. The determination by the court, on appeal, shall be limited to whether the permittee was adjudicated guilty of or received a prayer for judgment continued for a crime which would have disqualified the permittee from initially receiving a permit. Revocation of the permit is not stayed pending appeal.
  2. The court may suspend a permit as part of and for the duration of any orders permitted under Chapter 50B of the General Statutes.

History. 1995, c. 398, s. 1; 2011-268, s. 20; 2013-369, s. 20.

Editor’s Note.

Session Laws 2011-268, which, in s. 20, amended this section by substituting “Fraud or intentional and material misrepresentation” for “Fraud or intentional or material misrepresentation” in subdivision (a)(1), and, in subdivision (a)(2), inserting “or a duplicate permit” and substituting “materially altering a permit” for “duplicating a permit” in the first sentence, and adding the last sentence, provided in s. 26: “This act becomes effective December 1, 2011, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Session Laws 2013-369, s. 28, provides: “Sections 1 through 6, 14 through 16, 18, 21, 23, 25, and 26 of this act become effective October 1, 2013, and apply to offenses committed on or after that date. Section 17.3 and this section are effective when they become law. Section 27 of this act becomes effective October 1, 2013, and applies to any judgment entered for a felony conviction on or after that date. Except as otherwise provided in this act, the remainder of this act becomes effective October 1, 2013. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2013-369, s. 20, effective October 1, 2013, deleted subdivision (a)(5), which read: “The applicant is adjudicated guilty of or receives a prayer for judgment continued for a crime which would have disqualified the applicant from initially receiving a permit”; and added subsection (a1). For applicability, see Editor’s note.

CASE NOTES

Applicability. —

Applicant’s request for a concealed handgun permit was properly denied as: (1) the criteria for revoking a permit under G.S. 14-415.18 did not apply as the applicant’s prior permit had expired and had not been revoked prior to its expiration; (2) under G.S. 14-415.12(b)(8), the sheriff was to deny a permit if an applicant had been convicted of a misdemeanor under N.C. Gen. Stat. ch. 14, art. 8; (3) the applicant had been convicted of assault on a female under G.S. 14-33(c)(2), which was a misdemeanor violation under art. 8.; and (4) the applicant was not entitled to renew his permit under G.S. 14-415.16 . Kelly v. Riley, 223 N.C. App. 261, 733 S.E.2d 194, 2012 N.C. App. LEXIS 1252 (2012).

Plain language of G.S. 14-415.18(a) makes clear that the initial portions of the statute only apply when the sheriff revokes a permit as the word “nonrenewal” appears only in the last section of G.S. 14-415.18(a), in a paragraph which explains how a permittee may appeal either a revocation or a nonrenewal to a district court judge; accordingly, G.S. 14-415.18(a) is only applicable to nonrenewals in the context of establishing the procedure for an appeal to the district court. Kelly v. Riley, 223 N.C. App. 261, 733 S.E.2d 194, 2012 N.C. App. LEXIS 1252 (2012).

§ 14-415.19. Fees.

  1. The permit fees assessed under this Article are payable to the sheriff. The sheriff shall transmit the proceeds of these fees to the county finance officer to be remitted or credited by the county finance officer in accordance with the provisions of this section. Except as otherwise provided by this section, the permit fees are as follows:

    Click to viewThe county finance officer shall remit forty-five dollars ($45.00) of each new application fee and forty dollars ($40.00) of each renewal fee assessed under this subsection to the North Carolina Department of Public Safety for the costs of State and federal criminal record checks performed in connection with processing applications and for the implementation of the provisions of this Article. The remaining thirty-five dollars ($35.00) of each application or renewal fee shall be used by the sheriff to pay the costs of administering this Article and for other law enforcement purposes. The county shall expend the restricted funds for these purposes only.

    (a1) The permit fees for a retired sworn law enforcement officer who provides the information required by subdivisions (1) and (2) of this subsection to the sheriff, in addition to any other information required under this Article, are as follows:

    Click to view

    1. A copy of the officer’s letter of retirement from either the North Carolina Teachers’ and State Employees’ Retirement System or the North Carolina Local Governmental Employees’ Retirement System.
    2. Written documentation from the head of the agency where the person was previously employed indicating that the person was neither involuntarily terminated nor under administrative or criminal investigation within six months of retirement.The county finance officer shall remit the proceeds of the fees assessed under this subsection to the North Carolina Department of Public Safety to cover the cost of performing the State and federal criminal record checks performed in connection with processing applications and for the implementation of the provisions of this Article.
  2. An additional fee, not to exceed ten dollars ($10.00), shall be collected by the sheriff from an applicant for a permit to pay for the costs of processing the applicant’s fingerprints, if fingerprints were required to be taken. This fee shall be retained by the sheriff.

Application fee $80.00 Renewal fee $75.00 Duplicate permit fee $15.00

Application fee $45.00 Renewal fee $40.00

History. 1995, c. 398, s. 1; c. 507, s. 22.1(a); 1997-470, s. 1; 2000-140, s. 103; 2000-191, s. 2; 2003-379, s. 1; 2014-100, s. 17.1(o).

Editor’s Note.

Session Laws 2005-276, s. 15.5(a) and (b), provide: “(a) The Department of Justice shall report by January 15 each year to the Joint Legislative Commission on Governmental Operations, the Chairs of the Senate and House of Representatives Appropriations Committees, and the Chairs of the Senate and House of Representatives Appropriations Subcommittees on Justice and Public Safety on the receipts, costs for, and number of criminal record checks performed in connection with applications for concealed weapons permits. The report by the Department of Justice shall also include information on the number of applications received and approved for firearms safety courses.”

“(b) The Office of State Budget and Management, in consultation with the Department of Justice, shall study the feasibility of adjusting the fees charged for criminal record checks conducted by the Division of Criminal Information of the Department of Justice as a result of the increase in receipts from criminal record checks. The study shall include an assessment of the Division’s operational, personnel, and overhead costs related to providing criminal record checks and how those costs have changed since the prior fiscal year. The Office of State Budget and Management shall report its findings and recommendations to the Chairs of the Senate and House of Representatives Appropriations Committees, the Chairs of the Senate and House of Representatives Appropriations Subcommittees on Justice and Public Safety, and the Fiscal Research Division on or before March 1, 2006.”

Session Laws 2005-276, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2005’.”

Session Laws 2005-276, s. 46.3, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium.”

Session Laws 2005-276, s. 46.5, is a severability clause.

Effect of Amendments.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted “Department of Public Safety” for “Department of Justice” in subsections (a) and (a1).

Legal Periodicals.

For article, “Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute,” see 74 N.C.L. Rev. 2214 (1996).

§ 14-415.20. No liability of sheriff.

A sheriff who issues or refuses to issue a permit to carry a concealed handgun under this Article shall not incur any civil or criminal liability as the result of the performance of the sheriff’s duties under this Article.

History. 1995, c. 398, s. 1.

§ 14-415.21. Violations of this Article punishable as an infraction.

  1. A person who has been issued a valid permit who is found to be carrying a concealed handgun without the permit in the person’s possession or who fails to disclose to any law enforcement officer that the person holds a valid permit and is carrying a concealed handgun, as required by G.S. 14-415.11 , shall be guilty of an infraction and shall be punished in accordance with G.S. 14-3.1 . Any person who has been issued a valid permit who is found to be carrying a concealed handgun in violation of G.S. 14-415.11 (c)(8) shall be guilty of an infraction and may be required to pay a fine of up to five hundred dollars ($500.00). In lieu of paying a fine the person may surrender the permit. (a1) A person who has been issued a valid permit who is found to be carrying a concealed handgun in violation of subsection (c2) of G.S. 14-415.11 shall be guilty of a Class 1 misdemeanor.
  2. A person who violates the provisions of this Article other than as set forth in subsection (a) or (a1) of this section is guilty of a Class 2 misdemeanor.

History. 1995, c. 398, s. 1; 2011-268, s. 21(a); 2013-369, s. 16; 2015-195, s. 9.

Editor’s Note.

Session Laws 2015-195, s. 18, made the amendment to this section by Session Laws 2015-195, s. 9, applicable to offenses committed on or after December 1, 2015, and provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2013-369, s. 16, effective October 1, 2013, added subsection (a1); and inserted “or (a1)” in subsection (b). For applicability, see Editor’s note.

Session Laws 2015-195, s. 9, effective December 1, 2015, added the second sentence of subsection (a); and deleted “subdivision (c)(8) or” preceding “subsection (c2) of G.S. 14-415.11 ” in subsection (a1). For applicability, see editor’s note.

§ 14-415.22. Construction of Article.

This Article shall not be construed to require a person who may carry a concealed handgun under the provisions of G.S. 14-269(b) to obtain a concealed handgun permit. The provisions of this Article shall not apply to a person who may lawfully carry a concealed weapon or handgun pursuant to G.S. 14-269(b). A person who may lawfully carry a concealed weapon or handgun pursuant to G.S. 14-269(b) shall not be prohibited from carrying the concealed weapon or handgun on property on which a notice is posted prohibiting the carrying of a concealed handgun, unless otherwise prohibited by statute.

History. 1995, c. 398, s. 1; 1997-238, s. 5.

§ 14-415.23. Statewide uniformity.

  1. It is the intent of the General Assembly to prescribe a uniform system for the regulation of legally carrying a concealed handgun. To insure uniformity, no political subdivisions, boards, or agencies of the State nor any county, city, municipality, municipal corporation, town, township, village, nor any department or agency thereof, may enact ordinances, rules, or regulations concerning legally carrying a concealed handgun. A unit of local government may adopt an ordinance to permit the posting of a prohibition against carrying a concealed handgun, in accordance with G.S. 14-415.11(c) , on local government buildings and their appurtenant premises.
  2. A unit of local government may adopt an ordinance to prohibit, by posting, the carrying of a concealed handgun on municipal and county recreational facilities that are specifically identified by the unit of local government. If a unit of local government adopts such an ordinance with regard to recreational facilities, then the concealed handgun permittee may, nevertheless, secure the handgun in a locked vehicle within the trunk, glove box, or other enclosed compartment or area within or on the motor vehicle.
  3. For purposes of this section, the term “recreational facilities” includes only the following:
    1. An athletic field, including any appurtenant facilities such as restrooms, during an organized athletic event if the field had been scheduled for use with the municipality or county office responsible for operation of the park or recreational area.
    2. A swimming pool, including any appurtenant facilities used for dressing, storage of personal items, or other uses relating to the swimming pool.
    3. A facility used for athletic events, including, but not limited to, a gymnasium.
  4. For the purposes of this section, the term “recreational facilities” does not include any greenway, designated biking or walking path, an area that is customarily used as a walkway or bike path although not specifically designated for such use, open areas or fields where athletic events may occur unless the area qualifies as an “athletic field” pursuant to subdivision (1) of subsection (c) of this section, and any other area that is not specifically described in subsection (c) of this section.
  5. A person adversely affected by any ordinance, rule, or regulation promulgated or caused to be enforced by any unit of local government in violation of this section may bring an action for declaratory and injunctive relief and for actual damages arising from the violation. The court shall award the prevailing party in an action brought under this subsection reasonable attorneys’ fees and court costs as authorized by law.

History. 1995, c. 398, s. 1; 2011-268, s. 21(b); 2013-369, s. 6; 2015-195, s. 15.

Editor’s Note.

Session Laws 2015-195, s. 18, made subsection (a), as added by Session Laws 2015-195, s. 15, applicable to violations occurring on or after December 1, 2015, and provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2013-369, s. 6, effective October 1, 2013, redesignated the former provisions of this section as present subsections (a) through (c); deleted “a playground, an athletic field, a swimming pool, and an athletic facility” at the end of the introductory language of subsection (c); and added subdivisions (c)(1) through (c)(3) and subsection (d). For applicability, see Editor’s note.

Session Laws 2015-195, s. 15, effective December 1, 2015, added subsection (e). For applicability, see editor’s note.

Legal Periodicals.

For article, “Public Endangerment or Personal Liberty? North Carolina Enacts a Liberalized Concealed Handgun Statute,” see 74 N.C.L. Rev. 2214 (1996).

§ 14-415.24. Reciprocity; out-of-state handgun permits.

  1. A valid concealed handgun permit or license issued by another state is valid in North Carolina.
  2. Repealed by Session Laws 2011-268, s. 22(a), effective December 1, 2011.
  3. Every 12 months after the effective date of this subsection, the Department of Justice shall make written inquiry of the concealed handgun permitting authorities in each other state as to: (i) whether a North Carolina resident may carry a concealed handgun in their state based upon having a valid North Carolina concealed handgun permit and (ii) whether a North Carolina resident may apply for a concealed handgun permit in that state based upon having a valid North Carolina concealed handgun permit. The Department of Justice shall attempt to secure from each state permission for North Carolina residents who hold a valid North Carolina concealed handgun permit to carry a concealed handgun in that state, either on the basis of the North Carolina permit or on the basis that the North Carolina permit is sufficient to permit the issuance of a similar license or permit by the other state.

History. 2003-199, s. 1; 2011-268, s. 22(a).

§ 14-415.25. Exemption from permit requirement.

Law enforcement officers and qualified retired law enforcement officers authorized by federal law to carry a concealed handgun pursuant to section 926B or 926C of Title 18 of the United States Code, who are in compliance with the requirements of those sections, are exempt from obtaining the permit described in G.S. 14-415.11 .

History. 2007-427, s. 3.

§ 14-415.26. Certification of qualified retired law enforcement officers.

  1. In lieu of obtaining a permit under this Article, a qualified retired law enforcement officer may apply to the North Carolina Criminal Justice Education and Training Standards Commission for certification. The application shall include all of the following:
    1. Verification of completion of the firearms qualification criteria established by the Commission.
    2. Photographic identification indicating retirement status issued by the agency from which the applicant retired from service.
    3. Any other application information required by the Commission.
  2. The Commission shall include with the certification a notice of the limitations applicable under federal or State law to the concealed carry of firearms in this State. The failure to receive a notification under this subsection shall not be a defense to any offense or violation of applicable State or federal laws.

    (b1) The Commission shall coordinate with local and State law enforcement officers and with the community college system to provide multiple firearms qualification sites throughout the State where a qualified retired law enforcement officer may satisfy the firearms qualification criteria required for certification under this section.

  3. The Commission shall not incur any civil or criminal liability as the result of the performance of its duties under this section.
  4. It shall be unlawful for an applicant, or any person assisting an applicant, to make a willful and intentional misrepresentation on any form or application submitted to the Commission. A violation of this subsection shall be a Class 2 misdemeanor, and shall result in the immediate revocation of any certification issued by the Commission. A person convicted under this subsection shall be ineligible for certification under this section, or from obtaining a concealed carry permit under State law.
  5. This section shall not exempt any individual engaged in the private protective services profession in this State from fulfilling the registration and training requirements in Chapter 74C of the General Statutes.

History. 2007-427, s. 4; 2009-546, s. 1.

Effect of Amendments.

Session Laws 2009-546, s. 1, effective August 28, 2009, added subsection (b1).

§ 14-415.27. Expanded permit scope for certain persons.

Notwithstanding G.S. 14-415.11(c) , any of the following persons who has a concealed handgun permit issued pursuant to this Article or that is considered valid under G.S. 14-415.24 is not subject to the area prohibitions set out in G.S. 14-415.11(c) and may carry a concealed handgun in the areas listed in G.S. 14-415.11(c) unless otherwise prohibited by federal law:

  1. A district attorney.
  2. An assistant district attorney.
  3. An investigator employed by the office of a district attorney.
  4. A North Carolina district or superior court judge.
  5. A magistrate.
  6. A person who is elected and serving as a clerk of court.
  7. A person who is elected and serving as a register of deeds.
  8. A person employed by the Department of Public Safety who has been designated in writing by the Secretary of the Department and who has in the person’s possession written proof of the designation.
  9. A North Carolina administrative law judge.

History. 2011-268, s. 22(b); 2011-326, s. 21; 2013-369, s. 22; 2015-195, s. 1(c).

Editor’s Note.

Session Laws 2015-195, s. 18, made subdivisions (8) and (9), as added by Session Laws 2015-195, s. 1(c), applicable to offenses committed on or after July 1, 2015, and provided that: “Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions.”

Effect of Amendments.

Session Laws 2011-326, s. 21, substituted “area” for “restrictions and” preceding “prohibitions set out in G.S. 14-415.11 .”

Session Laws 2013-369, s. 22, effective October 1, 2013, substituted “certain persons” for “district attorneys, assistant district attorneys, and investigators employed by office of the district attorney” in the section heading, substituted “of the following persons” for “person who is a district attorney, an assistant district attorney, or an investigator employed by the office of a district attorney and”; and added subdivisions (1) through (7). For applicability, see Editor’s note.

Session Laws 2015-195, s. 1(c), effective July 1, 2015, added subdivisions (8) and (9). For applicability, see editor’s note.

Article 55. Regulation of Certain Reptiles.

§ 14-416. Mishandling of certain reptiles declared public nuisance and criminal offense.

The intentional or negligent exposure of other human beings to unsafe contact with venomous reptiles, large constricting snakes, or crocodilians is essentially dangerous and injurious and detrimental to public health, safety and welfare, and is therefore declared to be a public nuisance and a criminal offense, to be abated and punished as provided in this Article.

History. 1949, c. 1084, s. 1; 2009-344, s. 1.

Effect of Amendments.

Session Laws 2009-344, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, in the section catchline, substituted “Mishandling of certain reptiles” for “Handling of poisonous reptiles”; substituted “or negligent exposure of other human beings to unsafe contact with venomous reptiles, large constricting snakes, or crocodilians is” for “exposure of human beings to contact with reptiles of a venomous nature being” and substituted “and is therefore” for “the indulgence in and inducement to such exposure is hereby” near the end.

§ 14-417. Regulation of ownership or use of venomous reptiles.

  1. It shall be unlawful for any person to own, possess, use, transport, or traffic in any venomous reptile that is not housed in a sturdy and secure enclosure. Enclosures shall be designed to be escape-proof, bite-proof, and have an operable lock.
  2. Each enclosure shall be clearly and visibly labeled “Venomous Reptile Inside” with scientific name, common name, appropriate antivenin, and owner’s identifying information noted on the container. A written bite protocol that includes emergency contact information, local animal control office, the name and location of suitable antivenin, first aid procedures, and treatment guidelines, as well as an escape recovery plan must be within sight of permanent housing, and a copy must accompany the transport of any venomous reptile.
  3. In the event of an escape of a venomous reptile, the owner or possessor of the venomous reptile shall immediately notify local law enforcement.

History. 1949, c. 1084, s. 2; 2009-344, s. 1; 2013-413, s. 38(a); 2014-115, s. 17; 2019-204, s. 10(a).

Editor’s Note.

Session Laws 2019-204, s. 13, made the amendments to subsection (a) of this section by Session Laws 2019-204, s. 10(a), effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2009-344, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, rewrote subsection (a) and added subsections (b) and (c).

Session Laws 2013-413, s. 38(a), substituted “antivenin” for “antivenom” twice in subsection (b). For effective date, see editor’s notes.

Session Laws 2019-204, s. 10(a), effective December 1, 2019, in subsection (a), substituted “Enclosures” for “Permanent enclosures” in the second sentence, and deleted the last sentence, which formerly read “Transport containers shall be designed to be escape-proof and bite-proof.” For effective date and applicability, see editor’s note.

§ 14-417.1. Regulation of ownership or use of large constricting snakes.

  1. As used in this Article, large constricting snakes shall mean: Reticulated Python, Python reticulatus; Burmese Python, Python molurus; African Rock Python, Python sebae; Amethystine Python, Morelia amethistina; and Green Anaconda, Eunectes murinus; or any of their subspecies or hybrids.
  2. It shall be unlawful for any person to own, possess, use, transport, or traffic in any of the large constricting snakes that are not housed in a sturdy and secure enclosure. Enclosures shall be designed to be escape-proof and shall have an operable lock.
  3. Each enclosure shall be labeled clearly and visibly with the scientific name, common name, number of specimens, and owner’s identifying information. A written safety protocol and escape recovery plan shall be within sight of permanent housing, and a copy shall accompany the transport of any of the large constricting snakes. The safety protocol shall include emergency contact information, identification of the local animal control office, and first aid procedures.
  4. In the event of an escape of a large constricting snake, the owner or possessor shall immediately notify local law enforcement.

History. 2009-344, s. 1; 2019-204, s. 10(b).

Editor’s Note.

Session Laws 2019-204, s. 13, made the amendments to subsection (b) of this section by Session Laws 2019-204, s. 10(b), effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2019-204, s. 10(b), effective December 1, 2019, in subsection (b), substituted “Enclosures” for “Permanent enclosures” in the second sentence, and deleted the last sentence, which formerly read “Transport containers shall be designed to be escape-proof and bite-proof.” For effective date and applicability, see editor’s note.

§ 14-417.2. Regulation of ownership or use of crocodilians.

  1. All crocodilians, excluding the American alligator, shall be regulated under this Article. It shall be unlawful for any person to own, possess, use, transport, or traffic in any crocodilian that is not housed in a sturdy and secure enclosure. Permanent enclosures shall be designed to be escape-proof and have a fence of sufficient strength to prevent contact between an observer and the crocodilian and shall have an operable lock. Transport containers shall be designed to be escape-proof and shall be locked.
  2. A written safety protocol and escape recovery plan shall be within sight of permanent housing, and a copy must accompany the transport of any crocodilian.
  3. In the event of the escape of a crocodilian, the owner or possessor shall immediately notify local law enforcement.

History. 2009-344, s. 1; 2019-204, s. 10(c).

Editor’s Note.

Session Laws 2019-204, s. 13, made the amendments to subsection (a) of this section by Session Laws 2019-204, s. 10(c), effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2019-204, s. 10(c), effective December 1, 2019, substituted “escape-proof and shall be locked” for “escape-proof” in subsection (a). For effective date and applicability, see editor’s note.

§ 14-418. Prohibited handling of reptiles or suggesting or inducing others to handle.

  1. It shall be unlawful for any person to handle any reptile regulated under this Article in a manner that intentionally or negligently exposes another person to unsafe contact with the reptile.
  2. It shall be unlawful for any person to intentionally or negligently suggest, entice, invite, challenge, intimidate, exhort or otherwise induce or aid any person to handle or expose himself in an unsafe manner to any reptile regulated under this Article.
  3. Safe and responsible handling of reptiles for purposes of animal husbandry, exhibition, training, transport, and education is permitted under this section.

History. 1949, c. 1084, s. 3; 2009-344, s. 1.

Effect of Amendments.

Session Laws 2009-344, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, rewrote the section.

§ 14-419. Investigation of suspected violations; seizure and examination of reptiles; disposition of reptiles.

  1. In any case in which a law-enforcement officer or animal control officer has probable cause to believe that any of the provisions of this Article have been or are about to be violated, the officer is authorized and empowered to immediately investigate the violation or impending violation and to consult with representatives of the North Carolina Museum of Natural Sciences or the North Carolina Zoological Park or a designated representative of the North Carolina Department of Natural and Cultural Resources to identify the species, assist with determining interim disposition, and recommend appropriate and safe methods to handle and seize the reptile or reptiles involved. In the case of escape, or if an officer, with probable cause to believe that reptile is being owned, possessed, used, transported, or trafficked in violation of this Article, determines that there is an immediate risk to officer safety or public safety, the officer shall not be required to consult with representatives as provided by this subsection and may kill the reptile.
  2. If, based on available information, the officer, the Museum, the Zoological Park or a designated representative of the Department of Natural and Cultural Resources finds that a seized reptile is a venomous reptile, large constricting snake, or crocodilian regulated under this Article, the Museum or the Zoological Park or a designated representative of the Department of Natural and Cultural Resources shall assist the officer with determining an interim disposition of the reptile in a manner consistent with the safety of the public, until a final disposition is determined by a court of competent jurisdiction. In the case of a venomous reptile for which antivenin approved by the United States Food and Drug Administration is not readily available, the reptile may be euthanized unless the species is protected under the federal Endangered Species Act of 1973. Where euthanasia is determined to be the appropriate interim disposition, or where a reptile seized pursuant to this Article dies of natural or unintended causes, the parties involved shall not be liable to the reptile’s owner.

    (b1) Upon conviction of any offense contained in this Article, the court shall order a final disposition of the confiscated venomous reptiles, large constricting snakes, or crocodilians, which may include the transfer of title to the State of North Carolina and shall include reimbursement by the owner for the expenses incurred in the seizure, delivery, and storage thereof.

  3. If the reptile is not a venomous reptile, large constricting snake, or crocodilian regulated under this Article, and either no criminal citations, warrants, or indictments are initiated against the owner in connection with the reptile within 10 days of initial seizure, or a court of law determines that the reptile is not being owned, possessed, used, transported, or trafficked in violation of this Article, then it shall be the duty of the law enforcement officer to return the reptile or reptiles to the person from whom they were seized within 15 days of the seizure.

History. 1949, c. 1084, s. 4; 1981, c. 203, s. 1; 1993, c. 561, s. 116(g); 2009-344, s. 1; 2013-413, s. 38(b); 2014-115, s. 17; 2014-120, s. 39; 2017-10, s. 3.17(a); 2019-204, s. 10(d).

Editor’s Note.

Session Laws 2019-204, s. 13, made the amendments to this section by Session Laws 2019-204, s. 10(d), effective December 1, 2019, and applicable to offenses committed on or after that date.

Effect of Amendments.

Session Laws 2009-344, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, rewrote the section.

Session Laws 2013-413, s. 38(b), redesignated the former provisions of this section as present subsections (a), (b), and (c); in subsection (a), inserted “consult with representatives . . . and safe methods to,” inserted “to seize the reptile or reptiles involved,” and added the last sentence; and added “which in the case of a venomous reptile for which antivenin is not readily available, may include euthanasia” in subsection (b). For effective date, see editor’s notes.

Session Laws 2014-120, s. 39, effective September 18, 2014, substituted “approved by the United States Food and Drug Administration is not readily available, shall be euthanized unless the species is protected under the federal Endangered Species Act of 1973” for “is not readily available, may include euthanasia” in subsection (b).

Session Laws 2017-10, s. 3.17(a), effective May 4, 2017, in subsection (a), added “or to its designated representative”, and added “and may kill the reptile” at the end of the paragraph; in subsection (b), substituted “until a final disposition is determined by a court of competent jurisdiction. In” for “which in” in the first sentence, substituted “the reptile may be euthanized” for “shall be euthanized”, and added the last sentence; and added subsection (b1).

Session Laws 2019-204, s. 10(d), effective December 1, 2019, rewrote this section. For effective date and applicability, see editor’s note.

§ 14-420. [Repealed]

Repealed by Session Laws 2019-204, s. 10(e), effective December 1, 2019, and applicable to offenses committed on or after that date.

History. 1949, c. 1084, s. 5; 1981, c. 203, s. 2; 1993, c. 561, s. 116(h); 2009-344, s. 1.

Editor’s Note.

Session Laws 2019-204, s. 13, made the repeal of this section by Session Laws 2019-204, s. 10(e), effective December 1, 2019, and applicable to offenses committed on or after that date.

Former G.S. 14-420 , pertained to arrest procedures for persons violating the provisions of this Article.

Effect of Amendments.

Session Laws 2009-344, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, rewrote the section.

§ 14-421. Exemptions from provisions of Article.

This Article shall not apply to the possession, exhibition, or handling of reptiles by employees or agents of duly constituted veterinarians, zoos, serpentariums, museums, laboratories, educational or scientific institutions, public and private, in the course of their educational or scientific work, or Wildlife Damage Control Agents in the course of the work for which they are approved by the Wildlife Resources Commission.

History. 1949, c. 1084, s. 6; 2009-344, s. 1.

Effect of Amendments.

Session Laws 2009-344, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, inserted “veterinarians, zoos, serpentariums” and “public and private” near the middle, and added “or Wildlife Damage Control Agents in the course of the work for which they are approved by the Wildlife Resources Commission” at the end.

§ 14-422. Criminal penalties and civil remedies for violation.

  1. Any person violating any of the provisions of this Article shall be guilty of a Class 2 misdemeanor.
  2. If any person, other than the owner of a venomous reptile, large constricting snake, or crocodilian, the owner’s agent, employee, or a member of the owner’s immediate family, suffers a life threatening injury or is killed as the result of a violation of this Article, the owner of the reptile shall be guilty of a Class A1 misdemeanor. This subsection shall not apply to violations that result from incidents that could not have been prevented or avoided by the owner’s exercise of due care or foresight, such as natural disasters or other acts of God, or in the case of thefts of the reptile from the owner.
  3. Any person intentionally releasing into the wild a nonnative venomous reptile, a large constricting snake, or a crocodilian shall be guilty of a Class A1 misdemeanor.
  4. Violations of this Article as set forth in subsections (b) or (c) of this section shall constitute wanton conduct within the meaning of G.S. 1D-5(7) and subject the violator to punitive damages in any civil action that may be filed as a result of the violator’s actions.

History. 1949, c. 1084, s. 7; 1969, c. 1224, s. 3; 1993, c. 539, s. 289; 1994, Ex. Sess., c. 24, s. 14(c); 2009-344, s. 1.

Effect of Amendments.

Session Laws 2009-344, s. 1, effective December 1, 2009, and applicable to offenses committed on or after that date, rewrote the section.

Article 56. Debt Adjusting.

§ 14-423. Definitions.

As used in this Article, the following definitions apply:

  1. “Debt adjuster” means a person who engages in, attempts to engage in, or offers to engage in the practice or business of debt adjusting.
  2. “Debt adjusting” means entering into or making a contract, express or implied, with a particular debtor whereby the debtor agrees to pay a certain amount of money periodically to the person engaged in the debt adjusting business and that person, for consideration, agrees to distribute, or distributes the same among certain specified creditors in accordance with a plan agreed upon. Debt adjusting includes the business or practice of any person who holds himself out as acting or offering or attempting to act for consideration as an intermediary between a debtor and his creditors for the purpose of settling, compounding, or in any way altering the terms of payment of any debt of a debtor, and to that end receives money or other property from the debtor, or on behalf of the debtor, for the payment to, or distribution among, the creditors of the debtor. Debt adjusting also includes the business or practice of debt settlement or foreclosure assistance whereby any person holds himself or herself out as acting for consideration as an intermediary between a debtor and the debtor’s creditors for the purpose of reducing, settling, or altering the terms of the payment of any debt of the debtor, whether or not the person distributes the debtor’s funds or property among the creditors, and receives a fee or other consideration for reducing, settling, or altering the terms of the payment of the debt in advance of the debt settlement having been completed or in advance of all the services agreed to having been rendered in full.
  3. “Debtor” means an individual who resides in North Carolina, and includes two or more individuals who are jointly and severally, or jointly or severally, indebted to a creditor or creditors.

    (3a) “Nominal consideration” means a fee or a contribution to cover the cost of administering a debt management plan not to exceed forty dollars ($40.00) for origination or setup of the debt management plan and ten percent (10%) of the monthly payment disbursed under the debt management plan, not to exceed forty dollars ($40.00) per month.

  4. “Person” means an individual, firm, partnership, limited partnership, corporation, or association.

History. 1963, c. 394, s. 1; 2005-408, s. 2; 2007-79, s. 1.

Editor’s Note.

Session Laws 2005-408, s. 4, as amended by Session Laws 2007-79, s. 1, provides that subdivision (2), as added by s. 2 of the act is effective December 31, 2005. Session Laws 2005-408, s. 4, also provided for the act to expire October 1, 2007, but that sunset provision was repealed by Session Laws 2007-79, s. 1, effective September 1, 2007.

Effect of Amendments.

Session Laws 2005-408, s. 2, rewrote the section. See Editor’s Note for effective date and expiration.

CASE NOTES

Choice of Law. —

As the laws of Maryland and the absence of regulation under Oklahoma law directly conflicted with the provisions of the North Carolina unfair or deceptive trade practices statutes, the choice of law provisions in the agreements at issue prospectively limited debtor’s right to assert the illegality of creditors’ conduct. Thus, the arbitration terms of the agreements were invalid as a matter of law and ineffective to establish a right to arbitration. Lischwe v. Clearone Advantage, LLC, 2018 Bankr. LEXIS 989 (Bankr. E.D.N.C. Mar. 30, 2018).

§ 14-424. Engaging, etc., in business of debt adjusting a misdemeanor.

If any person shall engage in, or offer to or attempt to, engage in the business or practice of debt adjusting, or if any person shall hereafter act, offer to act, or attempt to act as a debt adjuster, he shall be guilty of a Class 2 misdemeanor.

History. 1963, c. 394, s. 2; 1969, c. 1224, s. 6; 1993, c. 539, s. 290; 1994, Ex. Sess., c. 24, s. 14(c).

CASE NOTES

Choice of Law. —

As the laws of Maryland and the absence of regulation under Oklahoma law directly conflicted with the provisions of the North Carolina unfair or deceptive trade practices statutes, the choice of law provisions in the agreements at issue prospectively limited debtor’s right to assert the illegality of creditors’ conduct. Thus, the arbitration terms of the agreements were invalid as a matter of law and ineffective to establish a right to arbitration. Lischwe v. Clearone Advantage, LLC, 2018 Bankr. LEXIS 989 (Bankr. E.D.N.C. Mar. 30, 2018).

§ 14-425. Enjoining practice of debt adjusting; appointment of receiver for money and property employed.

The superior court shall have jurisdiction, in an action brought in the name of the State by the Attorney General or the district attorney of the prosecutorial district as defined in G.S. 7A-60 , to enjoin, as an unfair or deceptive trade practice, the continuation of any debt adjusting business or the offering of any debt adjusting services. The Attorney General or the district attorney who brings an action under this section may appoint a receiver for the property and money employed in the transaction of business by such person as a debt adjuster, to ensure, so far as may be possible, the return to debtors of so much of their money and property as has been received by the debt adjuster, and has not been paid to the creditors of the debtors. The court may also assess civil penalties under G.S. 75-15.2 and award attorneys’ fees to the State under G.S. 75-16.1 .

History. 1963, c. 394, s. 3; 1973, c. 47, s. 2; 1987 (Reg. Sess., 1998), c. 1037, s. 49; 2005-408, s. 3; 2007-79, s. 1.

Editor’s Note.

Session Laws 2005-408, s. 4, provided that the amendments made by s. 3 of that act were to expire October 1, 2007, but that sunset provision was repealed by Session Laws 2007-79, s. 1, effective September 1, 2007.

Effect of Amendments.

Session Laws 2005-408, s. 3, effective September 20, 2005, rewrote the section.

CASE NOTES

Choice of Law. —

As the laws of Maryland and the absence of regulation under Oklahoma law directly conflicted with the provisions of the North Carolina unfair or deceptive trade practices statutes, the choice of law provisions in the agreements at issue prospectively limited debtor’s right to assert the illegality of creditors’ conduct. Thus, the arbitration terms of the agreements were invalid as a matter of law and ineffective to establish a right to arbitration. Lischwe v. Clearone Advantage, LLC, 2018 Bankr. LEXIS 989 (Bankr. E.D.N.C. Mar. 30, 2018).

§ 14-426. Certain persons and transactions not deemed debt adjusters or debt adjustment.

The following individuals or transactions shall not be deemed debt adjusters or as being engaged in the business or practice of debt adjusting:

  1. Any person or individual who is a regular full-time employee of a debtor, and who acts as an adjuster of his employer’s debts.
  2. Any person or individual acting pursuant to any order or judgment of a court, or pursuant to authority conferred by any law of this State or of the United States.
  3. Any person who is a creditor of the debtor, or an agent of one or more creditors of the debtor, and whose services in adjusting the debtor’s debts are rendered without cost to the debtor.
  4. Any person who at the request of a debtor, arranges for or makes a loan to the debtor, and who, at the authorization of the debtor, acts as an adjuster of the debtor’s debts in the disbursement of the proceeds of the loan, without compensation for the services rendered in adjusting such debts.
  5. An intermittent or casual adjustment of a debtor’s debts, for compensation, by an individual or person who is not a debt adjuster or who is not engaged in the business or practice of debt adjusting, and who does not hold himself out as being regularly engaged in debt adjusting.
  6. An attorney-at-law licensed to practice in this State who is not employed by a debt adjuster.
  7. An organization that provides credit counseling, education, and debt management services to debtors if the organization also does all of the following:
    1. Provides individualized credit counseling and budgeting assistance to the debtor without charge prior to the debtor’s enrollment in a debt management plan provided by the organization.
    2. Determines that the debtor has the financial ability to make payments to complete the debt management plan and that the plan is suitable for the debtor.
    3. Disburses the debtor’s funds to creditors pursuant to a debt management plan that the debtor has paid for with no more than nominal consideration and has agreed to in writing.
    4. Provides to the debtor, periodically and on no less than a quarterly basis, an individualized accounting for the most recent period of all of the debtor’s payments and disbursements under the debt management plan and all charges paid by the debtor.
    5. Does not directly or indirectly require the debtor to purchase other services or materials as a condition to participating in the debt management plan.
    6. Does not receive a payment, commission, or other benefit for referring the debtor to a provider of services.
    7. Is accredited by an accrediting organization that the Commissioner of Banks approves as being independent and nationally recognized for providing accreditation to organizations that provide credit counseling and debt management services.

History. 1963, c. 394, s. 4; 2005-408, s. 1; 2007-79, s. 1.

Editor’s Note.

Session Laws 2005-408, s. 4, provided that the amendments made by s. 1 of that act, which were effective October 1, 2005, were to expire October 1, 2007, but that sunset provision was repealed by Session Laws 2007-79, s. 1, effective September 1, 2007.

Effect of Amendments.

Session Laws 2005-408, s. 1, added subdivisions (6) and (7); and made minor punctuation changes throughout the section. See Editor’s Note for effective date and expiration.

Article 57. Use, Sale, etc., of Glues Releasing Toxic Vapors. [Repealed]

§§ 14-427 through 14-431. [Repealed]

Repealed by Session Laws 1969, c. 970, s. 11.

Cross References.

For present provisions as to use, sale, etc., of glues releasing toxic vapors, see G.S. 90-113.8 A et seq.

Article 58. Records, Tapes and Other Recorded Devices.

§ 14-432. Definitions.

The following definitions apply in this Article:

  1. “Article” means the tangible medium upon which sounds or images are recorded or otherwise stored, including any original phonograph record, disc, tape, audio or video cassette, wire, film, or other medium now known or later developed on which sounds or images, or both, can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original.
  2. “Fixed” means that the work has been recorded in a tangible medium of expression, by or under the authority of the author, and its embodiment is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds or images, or both, that are being transmitted is “fixed” for the purposes of this section if a fixation of the work is being made simultaneously with its transmission.
  3. “Owner” means the person who owns the sounds fixed in any master phonograph record, master disc, master tape, master film, or other device used for reproducing recorded sounds on phonograph records, discs, tapes, films, or other articles on which sound is or can be recorded and from which the transferred sounds are directly or indirectly derived, or the person who owns the rights to record or authorize the recording of a live performance.

History. 1973, c. 1279, s. 1; 1989, c. 589, s. 1; 2003-159, s. 1.

§ 14-433. Recording of live performances or recorded sounds and distribution, etc., of such recordings unlawful in certain circumstances.

  1. It shall be unlawful for any person to:
    1. Knowingly transfer or cause to be transferred, directly or indirectly by any means, any sounds recorded on a phonograph record, disc, wire, tape, film or other article on which sounds are recorded, with the intent to sell or cause to be sold, or to use or cause to be used for profit through public performance, such article on which sounds are so transferred, without consent of the, owner.
    2. Manufacture, distribute, wholesale or transport any article for profit, or possess for these purposes with the knowledge that the sounds recorded on the article were transferred in violation of subdivision (a)(1) of this section.
    3. Recodified as G.S. 14-433(a1)(1) by Session Laws 2003-159, s. 2.
    4. Recodified as G.S. 14-433(a1)(2) by Session Laws 2003-159, s. 2.

      (a1) It shall be unlawful for any person to:

      (1) Knowingly transfer or cause to be transferred, directly or indirectly by any means, any sounds at a live performance, with the intent to sell or cause to be sold, or to use or cause to be used for profit through public performance, the article on which sounds are so transferred, without consent of the owner.

      (2) Manufacture, distribute, transport or wholesale any article for profit, or possess for those purposes with the knowledge that the sounds recorded on the article were transferred in violation of subdivision (a1)(1) of this section.

  2. Subdivisions (a)(1) and (a)(2) of this section shall apply only to sound recordings that were initially fixed prior to February 15, 1972. Federal copyright law, 17 U.S.C. § 101 et seq., preempts State prosecution of the acts described in subdivisions (a)(1) and (a)(2) with respect to sound recordings initially fixed on or after February 15, 1972.
  3. This section shall not apply to any person engaged in webcasting or radio or television broadcasting who transfers, or causes to be transferred, any such sounds other than from the sound track of a motion picture intended for, or in connection with webcast, broadcast or telecast transmission or related uses, or for archival purposes. An Internet service provider who is solely providing a conduit for access to the Internet, shall not be deemed to be using, or causing to be used, recordings that may be transferred over the Internet by third parties in violation of this Article.

History. 1973, c. 1279, s. 1; 1989, c. 589, s. 1; 2003-159, s. 2.

§ 14-434. Retailing, etc., of certain recorded devices unlawful.

It shall be unlawful for any person to knowingly retail, advertise or offer for sale or resale, sell or resell or cause the sale or resale, rent or cause to rent, or possess for any of these purposes any article that has been produced, manufactured, distributed, or acquired at wholesale in violation of any provision of this Chapter.

History. 1973, c. 1279, s. 1, 1989, c. 589, s. 1.

§ 14-435. Recorded devices to show true name and address of manufacturer.

  1. A person is guilty of failure to disclose the origin of an article when, for commercial advantage or private financial gain, the person knowingly advertises or offers for sale or resale, or sells or resells, or causes the rental, sale, or resale, or rents, or manufactures, or possesses for these purposes, any article, the packaging, cover, box, jacket, or label of which does not clearly and conspicuously disclose the actual true name and address of the manufacturer of the article and the name of the actual author, artist, performer, producer, programmer, or group.
  2. This section does not require the original manufacturer or authorized licensees of software producers to disclose the contributing authors or programmers. As used in this section, the term “manufacturer” shall not include the manufacturer of the article’s packaging, cover, box, jacket, or label itself.

History. 1973, c. 1279, s. 1; 1989, c. 589, s. 1; 2003-159, s. 3.

CASE NOTES

Payment of Attorneys’ Fees. —

Plaintiffs who filed federal claim to recover statutory damages for the infringing activity of defendants, justifiably seeking protection of their rights under the law, were entitled to attorney’s fees where defendants were convicted in state court for failure to show the true name and address of the manufacturer on packaging on certain sound recordings; defendants’ criminal activity supported a finding of bad faith and wilfulness in the infringement of plaintiff’s copyrights. Arista Records v. Tysinger, 867 F. Supp. 345, 1994 U.S. Dist. LEXIS 16339 (M.D.N.C. 1994).

§ 14-436. Recorded devices; civil action for damages.

Any owner of an article as defined in this Article whose work is allegedly the subject of a violation of G.S. 14-433 or G.S. 14-434 , shall have a cause of action in the courts of this State for all damages resulting from the violation, including actual, compensatory and incidental damages.

History. 1973, c. 1279, s. 1; 1989, c. 589, s. 1; 2003-159, s. 4.

§ 14-437. Violation of Article; penalties.

  1. Every individual act in contravention of the provisions of this Article shall constitute a Class 1 misdemeanor, except that the offense is a Class I felony with a maximum fine of one hundred fifty thousand dollars ($150,000) if (i) the offense involves at least 100 unauthorized articles during any 180-day period, or (ii) is a third or subsequent conviction for an offense that involves at least 26 unauthorized articles during any 180-day period.
  2. If a person is convicted of any violation under this Article, the court, in its judgment of conviction, shall order the forfeiture and destruction or other disposition of:
    1. All infringing articles; and
    2. All implements, devices and equipment used or intended to be used in the manufacture of the infringing articles.

History. 1973, c. 1279, s. 1; 1989, c. 589, s. 1; 1993, c. 539, ss. 291, 1246; 1994, Ex. Sess., c. 24, s. 14(c); 2003-159, s. 5.

CASE NOTES

Payment of Attorneys’ Fees. —

Plaintiffs who filed federal claim to recover statutory damages for the infringing activity of defendants, justifiably seeking protection of their rights under the law, were entitled to attorney’s fees where defendants were convicted in state court for failure to show the true name and address of the manufacturer on packaging on certain sound recordings; defendants’ criminal activity supported a finding of bad faith and wilfulness in the infringement of plaintiff’s copyrights. Arista Records v. Tysinger, 867 F. Supp. 345, 1994 U.S. Dist. LEXIS 16339 (M.D.N.C. 1994).

§§ 14-438 through 14-440.

Reserved for future codification purposes.

Article 58A. Audiovisual Recordings.

§ 14-440.1. Unlawful operation of an audiovisual recording device.

  1. Definitions. —  The following definitions apply to this section:
    1. “Audiovisual recording device” means a digital or analog video camera, or any other technology or device now known or later developed, capable of recording, copying, or transmitting a motion picture, or any part thereof, regardless of whether audiovisual recording is the sole or primary purpose of the device.
    2. “Motion picture theater” means a movie theater, screening room, or other venue that is being utilized primarily for the exhibition of a motion picture at the time of the offense.

      (a1) Misdemeanor Offense. — Any person who knowingly operates or attempts to operate a device capable of functioning as a digital or analog photographic camera for the purpose of recording, copying, or transmitting a part of a motion picture not greater than one image, without the written consent of the motion picture theater owner shall be guilty of a Class 1 misdemeanor.

  2. Felony Offense. —  Any person who knowingly operates or attempts to operate an audiovisual recording device in a motion picture theater to transmit, record, or otherwise make a copy of a motion picture, or any part thereof, without the written consent of the motion picture theater owner shall be guilty of a felony, punishable as provided in subsection (c) of this section.
  3. Penalty. —  A violation of subsection (b) of this section is punishable as follows:
    1. Unless the conduct is covered under some other provision of law providing greater punishment, any person convicted of a violation of subsection (b) of this section is guilty of:
      1. A Class I felony, if the violation is a first offense under this section, with a minimum fine of two thousand five hundred dollars ($2,500).
      2. A Class I felony, if the violation is a second or subsequent offense under this section, with a minimum fine of five thousand dollars ($5,000).
    2. If a person is convicted of a violation of subsection (b) of this section, the court, in its judgment of conviction, shall order the forfeiture and destruction or other disposition of the following:
      1. All unauthorized copies of motion pictures or other audiovisual works, or any parts thereof.
      2. All implements, devices, and equipment used or intended to be used in connection with the offense.
  4. Immunity of Certain Persons. —  The owner or lessee of a motion picture theater, or the authorized agent or employee of the owner or lessee, who detains any person shall not be held civilly liable for claims arising out of such detention, when the detention is upon the premises of the motion picture theater or in a reasonable proximity thereto, is in a reasonable manner for a reasonable length of time, and, if in detaining the person, the owner, lessee, agent, or employee had, at the time of the detention, probable cause to believe that the person committed an offense under this section. If the person being detained by the owner, lessee, agent, or employee is a minor under the age of 18 years, the owner, lessee, agent, or employee shall call or notify, or make a reasonable effort to call or notify, the parent or guardian of the minor during the period of detention. An owner, lessee, agent, or employee who makes a reasonable effort to call or notify the parent or guardian of the minor shall not be held civilly liable for failing to notify the parent or guardian of the minor.
  5. Authorized Activities. —  This section does not prevent any lawfully authorized investigative, protective, law enforcement, or intelligence gathering employee or agent of a local, State, or federal government from operating any audiovisual recording device in a motion picture theater, as part of lawfully authorized investigative, protective, law enforcement, or intelligence gathering activities.

History. 2005-301, s. 1; 2007-463, s. 1; 2007-484, s. 43.7J.

Editor's Note.

The Article 58A heading has been reprinted in this supplement to correct an error in the main volume.

Effect of Amendments.

Session Laws 2007-463, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, deleted “photographic or” preceding “video camera” in subdivision (a)(1); added subsection (a1); in subsection (b), inserted “Felony” preceding “Offense” in the subsection heading and substituted “felony, punishable as provided in subsection (c) of this section” for “violation of this section” at the end; in sub-subdivision (c)(1)a., substituted “Class I Felony” for “Class 1 misdemeanor” at the beginning and inserted “with a minimum fine of two thousand five hundred dollars ($2,500)” at the end; and inserted “with a minimum fine of five thousand dollars ($5,000)” at the end of sub-subdivision (c)(1)b.

Session Laws 2007-484, s. 43.7J, effective August 30, 2007, in subsection (c), inserted “subsection (b) of” in the introductory language and in subdivision (c)(1), and substituted “a violation of subsection (b) of this section” for “any violation of this section” in subdivision (c)(2).

§§ 14-441, 14-442.

Reserved for future codification purposes.

Article 59. Public Intoxication.

§ 14-443. Definitions.

As used in this Article:

  1. “Alcoholism” is the state of a person who habitually lacks self-control as to the use of alcoholic beverages, or uses alcoholic beverages to the extent that his health is substantially impaired or endangered or his social or economic function is substantially disrupted; and
  2. “Intoxicated” is the condition of a person whose mental or physical functioning is presently substantially impaired as a result of the use of alcohol; and
  3. A “public place” is a place which is open to the public, whether it is publicly or privately owned.

History. 1977, 2nd Sess., c. 1134, s. 1; 1981, c. 412, s. 4; c. 747, s. 66.

§ 14-444. Intoxicated and disruptive in public.

  1. It shall be unlawful for any person in a public place to be intoxicated and disruptive in any of the following ways:
    1. Blocking or otherwise interfering with traffic on a highway or public vehicular area, or
    2. Blocking or lying across or otherwise preventing or interfering with access to or passage across a sidewalk or entrance to a building, or
    3. Grabbing, shoving, pushing or fighting others or challenging others to fight, or
    4. Cursing or shouting at or otherwise rudely insulting others, or
    5. Begging for money or other property.
  2. Any person who violates this section shall be guilty of a Class 3 misdemeanor.

History. 1977, 2nd Sess., c. 1134, s. 1; 1993, c. 539, s. 292; 1994, Ex. Sess., c. 24, s. 14(c); 2015-247, s. 3(c).

Effect of Amendments.

Session Laws 2015-247, s. 3(c), effective September 23, 2015, deleted the former last sentence in subsection (b), which read: “Notwithstanding the provisions of G.S. 7A-273(1), a magistrate is not empowered to accept a guilty plea and enter judgment for this offense.”

CASE NOTES

Mere public intoxication, standing alone, is no longer unlawful, and in order for there to be a chargeable offense, the intoxicated person must be disruptive in one or more of the ways described in subdivisions (1)-(5) of subsection (a). State v. Cooke, 49 N.C. App. 384, 271 S.E.2d 561, 1980 N.C. App. LEXIS 3383 (1980).

Section Not Violated. —

This statute, making it unlawful for any person in a public place to be intoxicated and disruptive by cursing or shouting at or otherwise rudely insulting others, was not violated by defendant’s conduct in standing in a motel parking lot in an intoxicated condition, looking up toward the sky, and shouting “God is alive,” and “God is in heaven,” and other words which sounded like a foreign language. State v. Cooke, 49 N.C. App. 384, 271 S.E.2d 561, 1980 N.C. App. LEXIS 3383 (1980).

§ 14-445. Defense of alcoholism.

  1. It is a defense to a charge of being intoxicated and disruptive in a public place that the defendant suffers from alcoholism.
  2. The presiding judge at the trial of a defendant charged with being intoxicated and disruptive in public shall consider the defense of alcoholism even though the defendant does not raise the defense, and may request additional information on whether the defendant is suffering from alcoholism.
  3. Whenever any person charged with committing a misdemeanor under G.S. 14-444 enters a plea to the charge, the court may, without entering a judgment, defer further proceedings for up to 15 days to determine whether the person is suffering from alcoholism.
  4. If he believes it will be of value in making his determination, the district court judge may direct an alcoholism court counselor, if available, to conduct a prehearing review of the alleged alcoholic’s drinking history in order to gather additional information as to whether the defendant is suffering from alcoholism.

History. 1977, 2nd Sess., c. 1134, s. 1; 1981, c. 519, s. 1.

§ 14-446. Disposition of defendant acquitted because of alcoholism.

If a defendant is found not guilty of being intoxicated and disruptive in a public place because he suffers from alcoholism, the court in which he was tried may retain jurisdiction over him for up to 15 days to determine whether he is a substance abuser and dangerous to himself or others as provided in G.S. 122C-281 . The trial judge may make that determination at the time the defendant is found not guilty or he may require the defendant to return to court for the determination at some later time within the 15-day period.

History. 1977, 2nd Sess., c. 1134, s. 1; 1985, c. 589, s. 6.

Legal Periodicals.

For survey of 1978 constitutional law, see 57 N.C.L. Rev. 958 (1979).

§ 14-447. No prosecution for public intoxication.

  1. No person may be prosecuted solely for being intoxicated in a public place. A person who is intoxicated in a public place and is not disruptive may be assisted as provided in G.S. 122C-301 .
  2. If, after arresting a person for being intoxicated and disruptive in a public place, the law-enforcement officer making the arrest determines that the person would benefit from the care of a shelter or health-care facility as provided by G.S. 122C-301 , and that he would not likely be disruptive in such a facility, the officer may transport and release the person to the appropriate facility and issue him a citation for the offense of being intoxicated and disruptive in a public place. This authority to arrest and then issue a citation is granted as an exception to the requirements of G.S. 15A-501(2).

History. 1977, 2nd Sess., c. 1134, s. 1; 1981, c. 519, s. 2; 1985, c. 589, s. 7.

CASE NOTES

Mere public intoxication, standing alone, is no longer unlawful, and in order for there to be a chargeable offense, the intoxicated person must be disruptive in one or more of the ways described in G.S. 14-444(a)(1)-(5). State v. Cooke, 49 N.C. App. 384, 271 S.E.2d 561, 1980 N.C. App. LEXIS 3383 (1980).

Those who are intoxicated but not disruptive may be assisted but not arrested. State v. Cooke, 49 N.C. App. 384, 271 S.E.2d 561, 1980 N.C. App. LEXIS 3383 (1980).

§§ 14-448 through 14-452.

Reserved for future codification purposes.

Article 60. Computer-Related Crime.

§ 14-453. Definitions.

As used in this Article, unless the context clearly requires otherwise, the following terms have the meanings specified:

  1. “Access” means to instruct, communicate with, cause input, cause output, cause data processing, or otherwise make use of any resources of a computer, computer system, or computer network.

    (1a) “Authorization” means having the consent or permission of the owner, or of the person licensed or authorized by the owner to grant consent or permission to access a computer, computer system, or computer network in a manner not exceeding the consent or permission.

    (1b) “Commercial electronic mail” means messages sent and received electronically consisting of commercial advertising material, the principal purpose of which is to promote the for-profit sale or lease of goods or services to the recipient.

  2. “Computer” means an internally programmed, automatic device that performs data processing or telephone switching.
  3. “Computer network” means the interconnection of communication systems with a computer through remote terminals, or a complex consisting of two or more interconnected computers or telephone switching equipment.
  4. “Computer program” means an ordered set of data that are coded instructions or statements that when executed by a computer cause the computer to process data.

    (4a) “Computer services” means computer time or services, including data processing services, Internet services, electronic mail services, electronic message services, or information or data stored in connection with any of these services.

  5. “Computer software” means a set of computer programs, procedures and associated documentation concerned with the operation of a computer, computer system, or computer network.
  6. “Computer system” means at least one computer together with a set of related, connected, or unconnected peripheral devices.

    (6a) “Data” means a representation of information, facts, knowledge, concepts, or instructions prepared in a formalized or other manner and intended for use in a computer, computer system, or computer network. Data may be embodied in any form including computer printouts, magnetic storage media, optical storage media, and punch cards, or may be stored internally in the memory of a computer.

    (6b) “Electronic mail” means the same as the term is defined in G.S. 14-196.3(a)(2).

    (6c) “Electronic mail service provider” means any person who (i) is an intermediary in sending or receiving electronic mail and (ii) provides to end users of electronic mail services the ability to send or receive electronic mail.

  7. “Financial instrument” includes any check, draft, money order, certificate of deposit, letter of credit, bill of exchange, credit card or marketable security, or any electronic data processing representation thereof.

    (7a) “Government computer” means any computer, computer program, computer system, computer network, or any part thereof, that is owned, operated, or used by any State or local governmental entity.

    (7b) “Internet chat room” means a computer service allowing two or more users to communicate with each other in real time.

    (7c) “Profile” means (i) a configuration of user data required by a computer so that the user may access programs or services and have the desired functionality on that computer or (ii) a Web site user’s personal page or section of a page made up of data, in text or graphical form, which displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements.

  8. “Property” includes financial instruments, information, including electronically processed or produced data, and computer software and computer programs in either machine or human readable form, and any other tangible or intangible item of value.

    (8a) “Resource” includes peripheral devices, computer software, computer programs, and data, and means to be a part of a computer, computer system, or computer network.

  9. “Services” includes computer time, data processing and storage functions.
  10. “Unsolicited” means not addressed to a recipient with whom the initiator has an existing business or personal relationship and not sent at the request of, or with the express consent of, the recipient.

History. 1979, c. 831, s. 1; 1993 (Reg. Sess., 1994), c. 764, s. 1; 1999-212, s. 2; 2000-125, s. 3; 2002-157, s. 1; 2009-551, s. 2; 2012-149, s. 2.

Editor’s Note.

Session Laws 2012-149 provides in its preamble: “Whereas, the General Assembly of North Carolina finds that a safe and civil environment in school is necessary in order for students to learn and achieve high academic standards; and

“Whereas, bullying and harassment, like other disruptive or violent behaviors, disrupt both a student’s ability to learn and a school’s ability to educate its students in a safe environment; and

“Whereas, bullying and harassing behaviors create a climate that fosters violence in our schools; and

“Whereas, it is essential to enact a law that seeks to protect the health and welfare of North Carolina students and improve the learning environment for North Carolina students; and

“Whereas, to do so, State and national data and anecdotal evidence have established the need to identify the most vulnerable targets and potential victims of bullying and harassment; and

“Whereas, the sole purpose of this law is to protect all children from bullying and harassment, and no other legislative purpose is intended nor should any other intent be construed from passage of this law; Now, therefore,’

Effect of Amendments.

Session Laws 2009-551, s. 2, effective December 1, 2009, and applicable to offenses committed on or after that date, added subdivisions (7b) and (7c).

Session Laws 2012-149, s. 2, effective July 12, 2012, in subdivision (7c), inserted “(i)” near the beginning, and added “or (ii) a Web site user’s personal page or section of a page made up of data, in text or graphical form, which displays significant, unique, or identifying information, including, but not limited to, listing acquaintances, interests, associations, activities, or personal statements” to the end.

Legal Periodicals.

For article, “Hate Speech in Cyberspace,” see 49 Wake Forest L. Rev. 319 (2014).

For comment, “The Shadow in the Comments Section: Revealing Anonymous Online Users in the Social Media Age,” see 41 Campbell L. Rev. 225 (2019).

For comment, “Trinity Lutheran Church of Columbia, Inc. v. Comer: No Discrimination Based on Religious Identity,” see 54 Wake Forest L. Rev. 251 (2019).

For comment, “Defamation in the Age of Social Media: Why North Carolina’s ‘Micro-influencers’ Should be Classified as Limited Purpose Public Figures,” see 42 Campbell L. Rev. 335 (2020).

For note, “Social Media and the Message: Facebook, Forums, and First Amendment Follies,” see 55 Wake Forest L. Rev. 217 (2020).

CASE NOTES

Access. —

State presented substantial evidence defendant accessed, or caused another to access, a government computer; the database he accessed qualified as a government program, and thus any access was access of a government computer, plus his unique user name and password were used to access the database and his email was utilized to submit the reports, which defendant signed. State v. Mathis, 261 N.C. App. 263, 819 S.E.2d 627, 2018 N.C. App. LEXIS 871 (2018).

Even if the court accepted defendant’s argument that he only transmitted information then uploaded by the Department of Insurance’s personnel, the statute not only covers accessing, but also if the defendant caused the government computer to be accessed; the statute encompasses when a person causes, directly or indirectly, a computer to be accessed. State v. Mathis, 261 N.C. App. 263, 819 S.E.2d 627, 2018 N.C. App. LEXIS 871 (2018).

Authorization. —

Where the evidence showed that defendant removed software from a work computer without consent of the owner, she should have been convicted of misdemeanor damage to computers because no evidence of damages was introduced, as she did not have consent to remove the files, even though she was allowed to operate the computer. State v. Johnston, 173 N.C. App. 334, 618 S.E.2d 807, 2005 N.C. App. LEXIS 2034 (2005).

Defendant had the authorization to use a database system on a government computer, but he exceeded that authorization by inputting fraudulent information; the State submitted substantial evidence of defendant inputting fraudulent information into the system and the willfulness of his actions. State v. Mathis, 261 N.C. App. 263, 819 S.E.2d 627, 2018 N.C. App. LEXIS 871 (2018).

§ 14-453.1. Exceptions.

This Article does not apply to or prohibit:

  1. Any terms or conditions in a contract or license related to a computer, computer network, software, computer system, database, or telecommunication device; or
  2. Any software or hardware designed to allow a computer, computer network, software, computer system, database, information, or telecommunication service to operate in the ordinary course of a lawful business or that is designed to allow an owner or authorized holder of information to protect data, information, or rights in it.

History. 2002-157, s. 2.

§ 14-453.2. Jurisdiction.

Any offense under this Article committed by the use of electronic communication may be deemed to have been committed where the electronic communication was originally sent or where it was originally received in this State. “Electronic communication” means the same as the term is defined in G.S. 14-196.3(a).

History. 2002-157, s. 3.

CASE NOTES

Execution of Search Warrant. —

Campus police had jurisdiction to execute a search warrant at defendant’s private home because, under G.S. 14-453.2 , defendant’s offenses were committed on campus as she sent the email through the university’s computer servers on campus, and the campus police had entered into a mutual aid agreement with the city. State v. Bernard, 236 N.C. App. 134, 762 S.E.2d 514, 2014 N.C. App. LEXIS 959 (2014).

§ 14-454. Accessing computers.

  1. It is unlawful to willfully, directly or indirectly, access or cause to be accessed any computer, computer program, computer system, computer network, or any part thereof, for the purpose of:
    1. Devising or executing any scheme or artifice to defraud, unless the object of the scheme or artifice is to obtain educational testing material, a false educational testing score, or a false academic or vocational grade, or
    2. Obtaining property or services other than educational testing material, a false educational testing score, or a false academic or vocational grade for a person, by means of false or fraudulent pretenses, representations or promises.A violation of this subsection is a Class G felony if the fraudulent scheme or artifice results in damage of more than one thousand dollars ($1,000), or if the property or services obtained are worth more than one thousand dollars ($1,000). Any other violation of this subsection is a Class 1 misdemeanor.
  2. Any person who willfully and without authorization, directly or indirectly, accesses or causes to be accessed any computer, computer program, computer system, or computer network for any purpose other than those set forth in subsection (a) above, is guilty of a Class 1 misdemeanor.
  3. For the purpose of this section, the phrase “access or cause to be accessed” includes introducing, directly or indirectly, a computer program (including a self-replicating or a self-propagating computer program) into a computer, computer program, computer system, or computer network.

History. 1979, c. 831, s. 1; 1979, 2nd Sess., c. 1316, s. 19; 1981, cc. 63, 179; 1993, c. 539, s. 293; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 764, s. 1; 2000-125, s. 4.

Editor’s Note.

The section above was amended by Session Laws 1993 (Reg. Sess., 1994), c. 764, s. 1 in the coded bill drafting format provided by G.S. 120-20.1 . The act failed to incorporate the changes in subsection (b) made by Session Laws 1993, c. 539. Subsection (b) is set out in the form above at the direction of the Revisor of Statutes.

Legal Periodicals.

For article, “Privacy and Community Property,” see 95 N.C.L. Rev. 729 (2017).

CASE NOTES

The trial court did not err in finding the aggravating factor of damage causing great monetary loss where the crime involved the use of computers to divert millions of dollars and where the amount of money involved in the offense was not an element but came into play only at the time of sentencing. State v. Hughes, 136 N.C. App. 92, 524 S.E.2d 63, 1999 N.C. App. LEXIS 1302 (1999).

§ 14-454.1. Accessing government computers.

  1. It is unlawful to willfully, directly or indirectly, access or cause to be accessed any government computer for the purpose of:
    1. Devising or executing any scheme or artifice to defraud, or
    2. Obtaining property or services by means of false or fraudulent pretenses, representations, or promises.A violation of this subsection is a Class F felony.
  2. Any person who willfully and without authorization, directly or indirectly, accesses or causes to be accessed any government computer for any purpose other than those set forth in subsection (a) of this section is guilty of a Class H felony.
  3. Any person who willfully and without authorization, directly or indirectly, accesses or causes to be accessed any educational testing material or academic or vocational testing scores or grades that are in a government computer is guilty of a Class 1 misdemeanor.
  4. For the purpose of this section the phrase “access or cause to be accessed” includes introducing, directly or indirectly, a computer program (including a self-replicating or a self-propagating computer program) into a computer, computer program, computer system, or computer network.

History. 2002-157, s. 4.

CASE NOTES

Construction. —

Even if the court accepted defendant’s argument that he only transmitted information then uploaded by the Department of Insurance’s personnel, the statute not only covers accessing, but also if the defendant caused the government computer to be accessed; the statute encompasses when a person causes, directly or indirectly, a computer to be accessed. State v. Mathis, 261 N.C. App. 263, 819 S.E.2d 627, 2018 N.C. App. LEXIS 871 (2018).

Willfulness. —

Defendant had the authorization to use a database system on a government computer, but he exceeded that authorization by inputting fraudulent information; the State submitted substantial evidence of defendant inputting fraudulent information into the system and the willfulness of his actions. State v. Mathis, 261 N.C. App. 263, 819 S.E.2d 627, 2018 N.C. App. LEXIS 871 (2018).

Arrest of Judgment. —

Defendant was entitled to arrest of his conviction for aiding and abetting the access of a government computer in violation of G.S. 14-454.1(b), because the plain language of (b) required that the purpose for access must be one other than those set forth in G.S. 14-454.1(a), and the indictment failed to state such a purpose. State v. Barr, 218 N.C. App. 329, 721 S.E.2d 395, 2012 N.C. App. LEXIS 219 (2012).

Evidence Sufficient. —

Evidence that defendant admitted she “obtained services” pursuant to G.S. 14-454.1(a)(2) when accessing a government computer and testimony that defendant did the alleged act purposely and deliberately used an out-of-state dealer code when processing title transfers for a dealer who has no license was sufficient for the charge of illegally accessing and aiding and abetting in access of a government computer to withstand a motion to dismiss. State v. Barr, 218 N.C. App. 329, 721 S.E.2d 395, 2012 N.C. App. LEXIS 219 (2012).

State presented substantial evidence defendant accessed, or caused another to access, a government computer; the database he accessed qualified as a government program, and thus any access was access of a government computer, plus his unique user name and password were used to access the database and his email was utilized to submit the reports, which defendant signed. State v. Mathis, 261 N.C. App. 263, 819 S.E.2d 627, 2018 N.C. App. LEXIS 871 (2018).

§ 14-455. Damaging computers, computer programs, computer systems, computer networks, and resources.

  1. It is unlawful to willfully and without authorization alter, damage, or destroy a computer, computer program, computer system, computer network, or any part thereof. A violation of this subsection is a Class G felony if the damage caused by the alteration, damage, or destruction is more than one thousand dollars ($1,000). Any other violation of this subsection is a Class 1 misdemeanor.

    (a1) It is unlawful to willfully and without authorization alter, damage, or destroy a government computer. A violation of this subsection is a Class F felony.

  2. This section applies to alteration, damage, or destruction effectuated by introducing, directly or indirectly, a computer program (including a self-replicating or a self-propagating computer program) into a computer, computer program, computer system, or computer network.

History. 1979, c. 831, s. 1; 1979, 2nd Sess., c. 1316, s. 20; 1981, cc. 63, 179; 1993, c. 539, s. 294; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 764, s. 1; 1995, c. 509, s. 12; 2000-125, s. 5; 2002-157, s. 5.

CASE NOTES

Construction. —

G.S. 14-455(b) does not modify G.S. 14-455(a) to limit the crime of damaging computers to damages caused by the introduction of a virus. State v. Johnston, 173 N.C. App. 334, 618 S.E.2d 807, 2005 N.C. App. LEXIS 2034 (2005).

Misdemeanor where no damages shown. —

Where the evidence showed that defendant removed software from a work computer without consent of the owner, she should have been convicted of misdemeanor damage to computers because no evidence of damages was introduced. State v. Johnston, 173 N.C. App. 334, 618 S.E.2d 807, 2005 N.C. App. LEXIS 2034 (2005).

Indictment Sufficient. —

Where indictment charged defendant with all of the essential elements of the crime of damaging computers, it was not fatally flawed; the indictment alleged that defendant unlawfully and without consent entered a computer system for the purpose of damaging files and caused a loss. State v. Johnston, 173 N.C. App. 334, 618 S.E.2d 807, 2005 N.C. App. LEXIS 2034 (2005).

Error Not to Instruct Jury that Defendant Had to Act “Willfully.” —

Defendant was entitled to a new trial on the charge of damaging a computer or a computer network under G.S. 14-455(a), because the jury was not instructed that it had to find that defendant acted “willfully” and the error was not harmless where the jury could have found that defendant intended only to delete files that defendant believed defendant’s supervisor had consented to and thus, that defendant acted without authorization, but not willfully. State v. Ramos, 193 N.C. App. 629, 668 S.E.2d 357, 2008 N.C. App. LEXIS 2025 (2008), aff'd, 363 N.C. 352 , 678 S.E.2d 224, 2009 N.C. LEXIS 610 (2009).

Court of appeals did not err in ordering a new trial for defendant, who was convicted of damaging a computer system at her workplace in violation of G.S. 14-455 after being fired from her position, because the trial court’s refusal to instruct the jury on the element of willfulness was prejudicial error when the jury could reasonably have reached a different result but for the omission; based on defendant’s testimony, there was a reasonable possibility that the jury could have found that defendant believed she had her supervisor’s permission to delete all of the files that she intentionally deleted and that any deletion of the files was accidental, not willful. State v. Ramos, 363 N.C. 352 , 678 S.E.2d 224, 2009 N.C. LEXIS 610 (2009).

§ 14-456. Denial of computer services to an authorized user.

  1. Any person who willfully and without authorization denies or causes the denial of computer, computer program, computer system, or computer network services to an authorized user of the computer, computer program, computer system, or computer network services is guilty of a Class 1 misdemeanor.
  2. This section also applies to denial of services effectuated by introducing, directly or indirectly, a computer program (including a self-replicating or a self-propagating computer program) into a computer, computer program, computer system, or computer network.

History. 1979, c. 831, s. 1; 1993, c. 539, s. 295; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 764, s. 1; 2000-125, s. 6.

§ 14-456.1. Denial of government computer services to an authorized user.

  1. Any person who willfully and without authorization denies or causes the denial of government computer services is guilty of a Class H felony. For the purposes of this section, the term “government computer service” means any service provided or performed by a government computer as defined in G.S. 14-454.1 .
  2. This section also applies to denial of services effectuated by introducing, directly or indirectly, a computer program (including a self-replicating or a self-propagating computer program) into a computer, computer program, computer system, or computer network.

History. 2002-157, s. 6.

§ 14-457. Extortion.

Any person who verbally or by a written or printed communication, maliciously threatens to commit an act described in G.S. 14-455 with the intent to extort money or any pecuniary advantage, or with the intent to compel any person to do or refrain from doing any act against his will, is guilty of a Class H felony.

History. 1979, c. 831, s. 1; 1979, 2nd Sess., c. 1316, s. 21; 1981, cc. 63, 179.

§ 14-458. Computer trespass; penalty.

  1. Except as otherwise made unlawful by this Article, it shall be unlawful for any person to use a computer or computer network without authority and with the intent to do any of the following:
    1. Temporarily or permanently remove, halt, or otherwise disable any computer data, computer programs, or computer software from a computer or computer network.
    2. Cause a computer to malfunction, regardless of how long the malfunction persists.
    3. Alter or erase any computer data, computer programs, or computer software.
    4. Cause physical injury to the property of another.
    5. Make or cause to be made an unauthorized copy, in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network.
    6. Falsely identify with the intent to deceive or defraud the recipient or forge commercial electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk commercial electronic mail through or into the computer network of an electronic mail service provider or its subscribers.For purposes of this subsection, a person is “without authority” when (i) the person has no right or permission of the owner to use a computer, or the person uses a computer in a manner exceeding the right or permission, or (ii) the person uses a computer or computer network, or the computer services of an electronic mail service provider to transmit unsolicited bulk commercial electronic mail in contravention of the authority granted by or in violation of the policies set by the electronic mail service provider.
  2. Any person who violates this section shall be guilty of computer trespass, which offense shall be punishable as a Class 3 misdemeanor. If there is damage to the property of another and the damage is valued at less than two thousand five hundred dollars ($2,500) caused by the person’s act in violation of this section, the offense shall be punished as a Class 1 misdemeanor. If there is damage to the property of another valued at two thousand five hundred dollars ($2,500) or more caused by the person’s act in violation of this section, the offense shall be punished as a Class I felony.
  3. Any person whose property or person is injured by reason of a violation of this section may sue for and recover any damages sustained and the costs of the suit pursuant to G.S. 1-539.2 A.
  4. It is not a violation of this section for a person to act pursuant to Chapter 36F of the General Statutes.

History. 1999-212, s. 3; 2000-125, s. 7; 2016-53, s. 2.

Effect of Amendments.

Session Laws 2016-53, s. 2, effective June 30, 2016, added subsection (d).

CASE NOTES

Question regarding authorized access. —

Summary judgment was not proper as to the computer trespass claim because there remained a dispute of material fact as to whether defendant was authorized to access this information on the server after his employment terminated. Encompass Servs., PLLC v. Maser Consulting P.A., 2021 NCBC 40, 2021 NCBC LEXIS 59 (N.C. Super. Ct. June 28, 2021).

§ 14-458.1. Cyber-bullying; penalty.

  1. Except as otherwise made unlawful by this Article, it shall be unlawful for any person to use a computer or computer network to do any of the following:
    1. With the intent to intimidate or torment a minor:
      1. Build a fake profile or Web site;
      2. Pose as a minor in:
        1. An Internet chat room;
        2. An electronic mail message; or
        3. An instant message;
      3. Follow a minor online or into an Internet chat room; or
      4. Post or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor.
    2. With the intent to intimidate or torment a minor or the minor’s parent or guardian:
      1. Post a real or doctored image of a minor on the Internet;
      2. Access, alter, or erase any computer network, computer data, computer program, or computer software, including breaking into a password protected account or stealing or otherwise accessing passwords; or
      3. Use a computer system for repeated, continuing, or sustained electronic communications, including electronic mail or other transmissions, to a minor.
    3. Make any statement, whether true or false, intending to immediately provoke, and that is likely to provoke, any third party to stalk or harass a minor.
    4. Copy and disseminate, or cause to be made, an unauthorized copy of any data pertaining to a minor for the purpose of intimidating or tormenting that minor (in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network).
    5. Sign up a minor for a pornographic Internet site with the intent to intimidate or torment the minor.
    6. Without authorization of the minor or the minor’s parent or guardian, sign up a minor for electronic mailing lists or to receive junk electronic messages and instant messages, with the intent to intimidate or torment the minor.
  2. Any person who violates this section shall be guilty of cyber-bullying, which offense shall be punishable as a Class 1 misdemeanor if the defendant is 18 years of age or older at the time the offense is committed. If the defendant is under the age of 18 at the time the offense is committed, the offense shall be punishable as a Class 2 misdemeanor.
  3. Whenever any person pleads guilty to or is guilty of an offense under this section, and the offense was committed before the person attained the age of 18 years, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place the defendant on probation upon such reasonable terms and conditions as the court may require. Upon fulfillment of the terms and conditions of the probation provided for in this subsection, the court shall discharge the defendant and dismiss the proceedings against the defendant. Discharge and dismissal under this subsection shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Upon discharge and dismissal pursuant to this subsection, the person may apply for an order to expunge the complete record of the proceedings resulting in the dismissal and discharge, pursuant to the procedures and requirements set forth in G.S. 15A-146 .

History. 2009-551, s. 1; 2012-149, s. 3.

Editor’s Note.

Session Laws 2012-149 provides in its preamble: “Whereas, the General Assembly of North Carolina finds that a safe and civil environment in school is necessary in order for students to learn and achieve high academic standards; and

“Whereas, bullying and harassment, like other disruptive or violent behaviors, disrupt both a student’s ability to learn and a school’s ability to educate its students in a safe environment; and

“Whereas, bullying and harassing behaviors create a climate that fosters violence in our schools; and

“Whereas, it is essential to enact a law that seeks to protect the health and welfare of North Carolina students and improve the learning environment for North Carolina students; and

“Whereas, to do so, State and national data and anecdotal evidence have established the need to identify the most vulnerable targets and potential victims of bullying and harassment; and

“Whereas, the sole purpose of this law is to protect all children from bullying and harassment, and no other legislative purpose is intended nor should any other intent be construed from passage of this law; Now, therefore,”

Effect of Amendments.

Session Laws 2012-149, s. 3, effective December 1, 2012, rewrote subdivision (a)(3), at the end of subdivision (a)(5), added “with the intent to intimidate or torment the minor”, and in subdivision (a)(6) substituted “with the intent to intimidate or torment the minor” for “resulting in intimidation or torment of the minor.” For applicability, see editor’s note.

Legal Periodicals.

For article, “How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Considers First Amendment, Due Process, and Fourth Amendment Challenges,” see 46 Wake Forest L. Rev. 641 (2011).

For article, “Testing the Social Media Waters: First Amendment Entanglement Beyond the Schoolhouse Gates,” see 36 Campbell L. Rev. 1 (2013).

For comment, “The Shadow in the Comments Section: Revealing Anonymous Online Users in the Social Media Age,” see 41 Campbell L. Rev. 225 (2019).

CASE NOTES

Constitutionality. —

Defendant failed to show that the cyber-bullying statute was invalid under U.S. Const. amend. I, as an overbroad criminalization of protected speech, in that he failed to meet his burden of showing real and substantial overbreadth in the statute. State v. Bishop, 241 N.C. App. 545, 774 S.E.2d 337, 2015 N.C. App. LEXIS 522 (2015), cert. dismissed, 775 S.E.2d 834, 2015 N.C. LEXIS 729 (N.C. 2015), rev'd, 368 N.C. 869 , 787 S.E.2d 814, 2016 N.C. LEXIS 440 (2016).

§ 14-458.2. Cyber-bullying of school employee by student; penalty.

  1. The following definitions apply in this section:
    1. School employee. — The term means any of the following:
      1. An employee of a local board of education, a charter school authorized under G.S. 115C-218.5 , a regional school created under G.S. 115C-238.62 , a laboratory school created under G.S. 116-239.7 , or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of Article 39 of Chapter 115C of the General Statutes.
      2. An independent contractor or an employee of an independent contractor of a local board of education, a charter school authorized under G.S. 115C-218.5 , a regional school created under G.S. 115C-238.62 , a laboratory school created under G.S. 116-239.7 , or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of Article 39 of Chapter 115C of the General Statutes, if the independent contractor carries out duties customarily performed by employees of the school.
    2. Student. — A person who has been assigned to a school by a local board of education as provided in G.S. 115C-366 or has enrolled in a charter school authorized under G.S. 115C-218.5, a regional school created under G.S. 115C-238.62, a laboratory school created under G.S. 116-239.7, or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of Article 39 of Chapter 115C of the General Statutes, or a person who has been suspended or expelled from any of those schools within the last year.
  2. Except as otherwise made unlawful by this Article, it shall be unlawful for any student to use a computer or computer network to do any of the following:
    1. With the intent to intimidate or torment a school employee, do any of the following:
      1. Build a fake profile or Web site.
      2. Post or encourage others to post on the Internet private, personal, or sexual information pertaining to a school employee.
      3. Post a real or doctored image of the school employee on the Internet.
      4. Access, alter, or erase any computer network, computer data, computer program, or computer software, including breaking into a password-protected account or stealing or otherwise accessing passwords.
      5. Use a computer system for repeated, continuing, or sustained electronic communications, including electronic mail or other transmissions, to a school employee.
    2. Make any statement, whether true or false, intending to immediately provoke, and that is likely to provoke, any third party to stalk or harass a school employee.
    3. Copy and disseminate, or cause to be made, an unauthorized copy of any data pertaining to a school employee for the purpose of intimidating or tormenting that school employee (in any form, including, but not limited to, any printed or electronic form of computer data, computer programs, or computer software residing in, communicated by, or produced by a computer or computer network).
    4. Sign up a school employee for a pornographic Internet site with the intent to intimidate or torment the employee.
    5. Without authorization of the school employee, sign up a school employee for electronic mailing lists or to receive junk electronic messages and instant messages, with the intent to intimidate or torment the school employee.
  3. Any student who violates this section is guilty of cyber-bullying a school employee, which offense is punishable as a Class 2 misdemeanor.
  4. Whenever any student pleads guilty to or is guilty of an offense under this section, the court may, without entering a judgment of guilt and with the consent of the student, defer further proceedings and place the student on probation upon such reasonable terms and conditions as the court may require. Upon fulfillment of the terms and conditions of the probation provided for in this subsection, the court shall discharge the student and dismiss the proceedings against the student. Discharge and dismissal under this subsection shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Upon discharge and dismissal pursuant to this subsection, the student may apply for an order to expunge the complete record of the proceedings resulting in the dismissal and discharge, pursuant to the procedures and requirements set forth in G.S. 15A-146 .
  5. Whenever a complaint is received pursuant to Article 17 of Chapter 7B of the General Statutes based upon a student’s violation of this section, the juvenile may, upon a finding of legal sufficiency pursuant to G.S. 7B-1706 , enter into a diversion contract pursuant to G.S. 7B-1706 .

History. 2012-149, s. 4; 2014-101, s. 7; 2016-94, s. 11.6(b); 2017-117, s. 2.

Editor’s Note.

Session Laws 2012-149 provides in its preamble: “Whereas, the General Assembly of North Carolina finds that a safe and civil environment in school is necessary in order for students to learn and achieve high academic standards; and

“Whereas, bullying and harassment, like other disruptive or violent behaviors, disrupt both a student’s ability to learn and a school’s ability to educate its students in a safe environment; and

“Whereas, bullying and harassing behaviors create a climate that fosters violence in our schools; and

“Whereas, it is essential to enact a law that seeks to protect the health and welfare of North Carolina students and improve the learning environment for North Carolina students; and

“Whereas, to do so, State and national data and anecdotal evidence have established the need to identify the most vulnerable targets and potential victims of bullying and harassment; and

“Whereas, the sole purpose of this law is to protect all children from bullying and harassment, and no other legislative purpose is intended nor should any other intent be construed from passage of this law; Now, therefore,”

Effect of Amendments.

Session Laws 2014-101, s. 7, effective August 6, 2014, substituted “G.S. 115C-218.5” for “G.S. 115C-238.29D” throughout subsection (a). See Editor’s note for applicability.

Session Laws 2016-94, s. 11.6(b), effective July 1, 2016, added “a lab school created under G.S. 116-239.7 ” following “a regional school created under G.S. 115C-238.62 ” wherever it appeared in subdivisions (a)(1)(a), (a)(1)(b) and subdivision (a)(2).

Session Laws 2017-117, s. 2, effective July 18, 2017, substituted “laboratory” for “lab” throughout subsection (a).

Legal Periodicals.

For article, “Testing the Social Media Waters: First Amendment Entanglement Beyond the Schoolhouse Gates,” see 36 Campbell L. Rev. 1 (2013).

§ 14-459.

Reserved for future codification purposes.

Article 61. Trains and Railroads.

§ 14-460. Riding on train unlawfully.

If any person, with the intention of being transported free in violation of law, rides or attempts to ride on top of any car, coach, engine, or tender, on any railroad in this State, or on the drawheads between cars, or under cars, on truss rods, or trucks, or in any freight car, or on a platform of any baggage car, express car, or mail car on any train, he shall be guilty of a Class 3 misdemeanor.

History. 1998-128, s. 12.

§ 14-461. Unauthorized manufacture or sale of switch-lock keys a misdemeanor.

It shall be unlawful for any person to make, manufacture, sell, or give away to any other person any duplicate key to any lock used by any railroad company in this State on its switches or switch tracks, except upon the written order of that officer of such railroad company whose duty it is to distribute and issue switch-lock keys to the employees of such railroad company. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.

History. 1998-128, s. 12.

Legal Periodicals.

See legislative survey, 21 Campbell L. Rev. 323 (1999).