103.2Common Pleading Defects
- All pleadings must be carefully reviewed to ensure they correctly identify the defendant, victim, offense charged, and any other necessary elements.
- If not corrected, defects in the pleading can result in a dismissal or reversal on appeal.
- Defects or omissions may not be fatal if they are not substantial and do not prejudice the defendant.
For templates with recommended language to use when charging specific criminal offenses, please see the related entry on Arrest Warrant and Indictment Forms.
Elements of the Offense
Except for those crimes where a short-form indictment is statutorily permitted, both misdemeanor and felony pleadings must state all of the essential elements of the crime. See G.S. 15A-924(a)(5); State v. Westbrooks, 345 N.C. 43 (1996); State v. Palmer, 293 N.C. 633, 639 (1977) (both indictments and warrants must “allege lucidly and accurately all the essential elements of the offense endeavored to be charged”); State v. Hare, 243 N.C. 262 (1955) (indictment that fails to allege every element of crime strips superior court of jurisdiction over case).
If the pleading fails to allege an essential element, it is defective and subject to dismissal. See, e.g., State v. Barnett, 223 N.C. App. 65 (2012) (indictment charging failing to notify sheriff’s office of change of address by a registered sex offender was defective where it failed to allege that defendant was a person required to register); State v. Burge, 212 N.C. App. 220 (2011) (warrant could not support a conviction for attack by a dangerous dog, since it failed included the element of medical treatment cost); State v. LePage, 204 N.C. App. 37 (2010) (indictment identifying controlled substance as “benzodiazepines, which is included in Schedule IV of the North Carolina Controlled Substances Act” was fatally defective since benzodiazepines were not listed in Schedule IV); State v. Turshizi, 175 N.C. App. 783 (2006) (indictment fatally flawed where it did not include the full name of controlled substance; substance listed as “methylenedioxymethamphetamine” but did not include “3,4” as listed in statute).
There is an exception to this rule for citations, which are generally valid even if they fail to allege every element, as long as they reasonably identify the crime charged. See State v. Jones, 371 N.C. 548 (2018) ("the criminal pleading contents of a citation are designed and allowed to be more relaxed than those of other criminal charging instruments"); State v. Allen, 247 N.C. App. 179 (2016) (a citation is sufficient if it identifies the offense, even if elements are missing).
Date, Time and Place of Offense
A pleading must allege the date, time and place of an offense with enough specificity to enable the defendant to defend against the charge. See G.S. 15A-924(a)(3), (a)(4); see also State v. Smith, 267 N.C. 755 (1966) (per curiam) (pleading alleging breaking and entering was fatally defective where it did not identify building with particularity); but see State v. McCormick, 204 N.C. App. 105 (2010) (no fatal variance where burglary indictment alleged defendant broke and entered house located at 407 Ward’s Branch Road, Sugar Grove Watauga County, but evidence at trial showed house number was 317); see also State v. Sills, 311 N.C. 370 (1984) (variance between the actual date of the offense and the date alleged in rape indictment was not fatal, since charging statute expressly excused the failure to state an exact date).
A defendant who objects to the lack of specificity in the date of a pleading must demonstrate that the vagueness impaired his or her defense. See G.S. 15A-924(a)(4) (“Error as to a date or its omission is not ground for dismissal of the charges or for reversal of a conviction if time was not of the essence with respect to the charge and the error or omission did not mislead the defendant to his prejudice.”); G.S. 15-155 (“No judgment upon any indictment . . . shall be stayed or reversed . . . for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly . . . .”); State v. Friend, 219 N.C. App. 338 (2012) (criminal summons charging the defendant with impaired driving was not defective on ground that it failed to allege the exact hour and minute that the offense occurred); State v. Price, 310 N.C. 596 (1984) (trial court did not err in allowing the state to amend date of the offense in a murder indictment from the date of the victim’s death to the date when the victim was injured, because time was not essential to offense charged, and the change of date did not substantially alter the charge); State v. Cameron, 83 N.C. App. 69 (1986) (no error in allowing state to amend date of offense in incest indictment from “on or about 25 May 1985,” to “on or about or between May 18, 1985, through May 26, 1985” because the change did not substantially alter the charge against defendant, unfairly surprise him, or prevent him from presenting a defense); In re A.W., 209 N.C. App. 596 (2011) (no fatal variance between juvenile delinquency petition for indecent liberties alleging offense date of which was seven days off from date proved at trial; juvenile failed to show his ability to present adequate defense was prejudiced by variance).
When the exact time and place are not essential, the defendant may move for a bill of particulars if he or she requires more specific information. See State v. Price, 310 N.C. 596 (1984); State v. Sills, 311 N.C. 370 (1984).
The requirement of temporal specificity diminishes in cases of sexual offenses on children. See State v. Everett, 328 N.C. 72 (1991) (child sex offense indictment where date could have been February or March was not too vague to support conviction); State v. Hatfield, 128 N.C. App. 294 (1998) (no error in alleging time period in which offense was committed in child sexual assault case; a witness’s vagueness about the date of offense does not make an indictment defective); but see State v. Khouri, 214 N.C. App. 389 (2011) (in sexual assault case involving child victim, there was fatal variance between indictment that alleged offense dates of March 30, 2000 to December 31, 2000, and evidence showed conduct occurred in the Spring of 2001 - state never moved to amend the indictment).
Statutory Reference – Not Mandatory (or Sufficient)
The pleading does not have to cite the statute. If it does cite the statute and the citation is incorrect, that still does not invalidate the charge, as long as the pleading stated the elements of the crime so that defendant is informed of the crime with which he or she is charged, and the court can proceed to judgment for that offense. G.S. 15-153. See State v. Anderson, 259 N.C. 499 (1963); State v. Overton, 60 N.C. App. 1 (1982). A pleading is not defective if it fails to cite the statute violated. G.S. 15A-924(a)(6).
A warrant or indictment that substantially uses the words of the statute with which defendant is charged is sufficient as long as the statutory words charge the essential elements of the offense. Otherwise, the statutory language must be supplemented by other allegations to inform defendant of the essential elements of the offense charged. See State v. Cook, 272 N.C. 728 (1968); State v. Crabtree, 286 N.C. 541 (1975). On the other hand, citing to the proper statute will not cure a pleading that is defective for failing to adequately charge a criminal offense. See State v. Cook, 272 N.C. 728 (1968). As noted above, one important exception to this rule appears to be citations, in which identifying the proper statute may cure or save an otherwise deficient pleading. See State v. Jones, 371 N.C. 548 (2018); State v. Allen, 247 N.C. App. 179 (2016).
Incorrect Names of Parties
- Misidentification of Defendant
All criminal pleadings must name or otherwise identify the defendant. See G.S. 15A-924(a)(1) (defendant must be identified, but "the name of the defendant need not be repeated in each count unless required for clarity"); State v. Simpson, 302 N.C. 613 (1981) (failure to name or otherwise identify defendant was fatal defect in indictment). See also State v. Sisk, 123 N.C. App. 361 (1996) (no fatal defect where caption of indictment and one count used correct name of defendant, but another count accidentally used the wrong name - state was properly allowed to amend the count that used the wrong name); State v. Johnson, 77 N.C. App. 583 (1985) (naming defendant in caption and then incorporating caption by reference in count of indictment was sufficient to identify defendant).
Minor variances in the defendant’s name are generally not fatal. See State v. Higgs, 270 N.C. 111 (1967) (“Beauford Merrill” for “Burford Murril”); State v. Vincent, 222 N.C. 543 (1943) (“Vincent” for “Vinson”); State v. Gibson, 221 N.C. 252 (1942) (“Robinson” for “Rolison”).
Additionally, a criminal pleading that identifies the defendant by a nickname or street name may be acceptable. See State v. Spooner, 28 N.C. App. 203 (1975) (pleading that named Michael Spooner as “Mike Spooner” acceptable); State v. Taylor, 61 N.C. App. 589 (1983) (warrant that included only defendant’s street name “Blood” was not invalid; warrant had correct address, and state only knew defendant’s street name); see also State v. Young, 54 N.C. App. 366 (1981) (in superior court, defendant waived objection to misnomer regarding his name by entering plea and going to trial without making objection), aff’d, 305 N.C. 391 (1982).
- Misidentification of Victim
If identifying the the victim is an element of the offense, an indictment which fails to do so is fatally defective. See State v. White, 372 N.C. 248 (2019) (sex offense indictment identifying victim only as "Victim #1" was facially invalid); State v. Shuler, 263 N.C. App. 366 (2018) (sex offense indictment which only identified victim as "Victim #1" was fatally defective). However, minor variances in the victim’s name are generally not fatal. See, e.g., State v. Isom, 65 N.C. App. 223 (1983) (indictment that named the victim as “Eldred Allison” was sufficient even though the victim’s name was “Elton Allison,” because the names are sufficiently similar to fall within the doctrine of idem sonans (presumption that a person is known, despite minor misspelling) and the variance was immaterial). Accord, State v. Williams, 269 N.C. 376 (1967) (“Mateleane” for “Madeleine”); but see State v. Abraham, 338 N.C. 315 (1994) (error to allow state to amend felonious assault indictment to change name of victim from “Carlose Antoine Latter” to “Joice Hardin”).
Lack of Names, Signatures, or Attestations on Indictment
The grand jury foreperson’s failure to properly indicate which witnesses appeared before the grand jury does not invalidate the indictment or presentment. See G.S. 15A-623(c), State v. Dukes, 305 N.C. 387 (1982) (denying defendant’s motion to dismiss indictment because a witness who appeared before the grand jury was indicated on the indictment with a “checkmark,” and not with an “X” as stated in the foreman’s certification).
A prosecutor’s failure to sign an indictment does not invalidate the indictment. G.S. 15A-644(a)(4); State v. Mason, 279 N.C. 435 (1971). In addition, the date an indictment is “returned” is not an essential part of a bill of indictment. State v. Shaw, 293 N.C. 616 (1977), overruled on other grounds, State v. Weaver, 306 N.C. 629 (1982).
A grand jury foreperson’s failure to attest the concurrence of at least 12 grand jurors in returning a true bill does not invalidate the indictment when the foreman signs the indictment attesting that a true bill was returned. State v. House, 295 N.C. 189 (1978). A grand jury foreperson’s failure to sign an indictment does not invalidate the indictment when the grand jury’s report establishes that a true bill was found. State v. Spinks, 24 N.C. App. 548 (1975). A grand jury foreperson’s failure to mark the box indicating that a true bill was found does not invalidate the indictment when the grand jury’s report establishes that a true bill was found. State v. Midyette, 45 N.C. App. 87 (1980).
Variance Between County Where Offense Committed and County Where Indictment Returned
G.S. 15A-631 states that “the place for returning a presentment or indictment is a matter of venue, not jurisdiction.” In State v. Spencer, 187 N.C. App. 605 (2007), the indictment charged that the defendant committed felony larceny in Cleveland County. The evidence at trial in Cleveland County Superior Court proved that the offense was actually committed in Gaston County. The court ruled that the defendant was not entitled to a reversal of his conviction. First, the defendant waived any question of venue because he failed to make a pretrial motion to dismiss for improper venue; see G.S. 15A-631 and State v. Brown, 85 N.C. App. 583 (1987). Second, the variance in this case between the indictment and proof at trial was not fatal; see State v. Brown, 85 N.C. App. 583 (1987).
Charging Offense Conjunctively or Disjunctively
Where a statute contains disjunctive clauses (“intentionally and willfully did A, B, or C”), there may be a question of whether the legislature intended to make each disjunctive alternative a separate offense, or if it intended for the disjunctive clauses to create alternative means of committing one offense.
The N.C. Supreme Court has stated that if the disjunctive alternatives go to the “gravamen” of the offense, then separate offenses were intended, but otherwise it is interpreted as separate means of committing a single offense. See State v. Creason, 313 N.C. 122 (1985) (possession with intent to “sell or deliver” creates one offense with separate means of committing it - possession with intent to transfer is the gravamen of offense); State v. Hartness, 326 N.C. 561 (1990) (indecent liberties with child by touching child or compelling child to touch defendant creates alternative means of committing same offense - gravamen of offense is taking indecent liberties).
But if a single statute creates more than one crime—that is, where one statute creates multiple separate offenses for which a defendant could be separately punished—only one of those crimes should be charged in each count of an indictment. See State v. Thompson, 257 N.C. 452, 456 (1962) (stating that pleading “should contain a separate count, complete within itself, as to each criminal offense” but holding that defendant waived right to attack warrant by proceeding to trial without moving to quash); see also Section I. on “Duplicity” (below). For a summary of the case law, see State v. Lyons, 330 N.C. 298 (1991).
When a statute sets forth disjunctive or alternative ways by which the offense may be committed, a warrant or indictment should charge them conjunctively, linking the alternatives by the word “and” instead of “or”. State v. Swaney, 277 N.C. 602 (1971). ("The proper way is to connect the various allegations in the indictment with the conjunctive term 'and,' and not with the word 'or.'"). But use of the word “or” does not invalidate the charge if there is only one offense charged. See State v. Creason, discussed below. The use of the conjunctive “and” in an indictment charging two theories by which offense may be committed does not require the state to prove both theories. State v. Garnett, 209 N.C. App. 537 (2011). When an indictment sets forth conjunctively two different means by which the single crime charged may have been committed, there is no fatal variance between indictment and proof when the state offers evidence supporting only one of the methods charged. State v. Gray, 292 N.C. 270 (1977); State v. Birdsong, 325 N.C. 418 (1989); State v. Pigott, 331 N.C. 199 (1992); State v. Montgomery, 331 N.C. 559 (1992). See also State v. Lofton, 372 N.C. 216 (2019) (where indictment alleged four different means of comitting a controlled substance offense, joined by "and," but did not allege "intent to distribute" which was a necessary element of one of the four means of commiting the offense, the error did not render the indictment fatally defective).
An indictment should always avoid using the phrase “and/or.” In State v. Haddock, 191 N.C. App. 474 (2008), the defendant was convicted of second-degree rape in a case when the victim had lost consciousness from excessive alcohol consumption. The indictment alleged that the victim was “mentally disabled, mentally incapacitated and/or physically helpless.” The Haddock court noted that the court in State v. Call, 353 N.C. 400 (2001), had criticized the use of the phrase “and/or” in indictments, although it is not necessarily fatal. The indictment in this case had followed the short-form indictment language in G.S. 15-144.1(c) except for the substitution of “and/or” for “or.” The court ruled that the indictment was not fatally defective; it was sufficient to notify the defendant of the charge against him to prepare an adequate defense and to protect him from being punished a second time for the same act. But the court noted that the indictment would have been clearer if the word “or” or “and” had been used.
Surplus or Unnecessary Language in Criminal Pleading
Language in an indictment or other criminal pleading that is unnecessary (“surplusage”) does not prohibit the state from proving theories or facts of the charged crime that are different from those alleged in the indictment. See State v. Pickens, 346 N.C. 628 (1997) (indictment identified the firearm as shotgun, but evidence at trial showed it has a handgun – since type of gun was not an essential element of the offense, the variance was immaterial); State v. Westbrooks, 345 N.C. 43 (1996) (alleging acting in concert theory in indictment did not bar state’s proving accessory before the fact theory at trial); State v. Estes, 186 N.C. App. 364 (2007) (trial judge did not err in instructing jury on aiding and abetting false pretenses, even though indictment alleged acting in concert, because indictment’s allegation was surplusage); State v. Pelham, 164 N.C. App. 70 (2004) (“Allegations beyond the essential elements of the offense are irrelevant and may be treated as surplusage and disregarded when testing the sufficiency of the indictment”); State v. Dammons, 159 N.C. App. 284 (2003); State v. Bowens, 140 N.C. App. 217 (2000); State v. Qualls, 130 N.C. App. 1 (1998); State v. Kirkpatrick, 343 N.C. 285 (1996); State v. Rhome, 120 N.C. App. 278 (1995); State v. Roten, 115 N.C. App. 118 (1994); State v. Jones, 110 N.C. App. 289 (1993); State v. Birdsong, 325 N.C. 418 (1989); State v. Ollis, 318 N.C. 370 (1986); State v. Freeman, 314 N.C. 432 (1986); State v. Kornegay, 313 N.C. 1 (1985); State v. Moore, 311 N.C. 442 (1984); State v. Green, 305 N.C. 462 (1982). The defendant may also move to strike any inflammatory or prejudicial language in the pleading as “surplusage,” and proceed on the remaining language of the pleading. G.S. 15A-924(f); 15A-952(b).
Notwithstanding the general rule reflected in the cases cited above, there is an exception for indictments in which the state alleges a particular underlying felony in the indictment, but there is a variance between the named offense and the evidence at trial. See State v. Silas, 360 N.C. 377 (2006); State v. Yarborough, 198 N.C. App. 22 (2009) (when an indictment alleges intent to commit a specific felony, the state must prove “the particular felonious intent alleged”). For example, in Silas the trial judge allowed the state to amend a felonious breaking and entering indictment to change the felony intended to be committed from murder to two felonious assaults. The N.C. Supreme Court explained that the felonious breaking or entering indictment did not have to allege the specific felony intended to be committed – however, since the indictment did allege a specific felony, the state could not amend the indictment to allege a different felony, because that would be a substantial alteration of the indictment prohibited by G.S. 15A-923(e). But this exception is narrowed by cases such as State v. Farrar, 361 N.C. 675 (2007) and State v. Beamer, 339 N.C. 477 (1994), which have clarified that if the variance actually benefits the defendant (i.e., by requiring the state to prove additional elements beyond what would have been required by the offense named in the indictment), then the variance is not fatal.
Each separate offense charged against a defendant must be pled in a separate pleading, or in a separate count within a single pleading. See G.S. 15A-924(a)(2). A pleading may be challenged for duplicity if it contains more than one charge in a single count. When a pleading is challenged on this ground, the state must elect between the offenses charged; if the state fails to elect, the court may dismiss the entire count. See G.S. 15A-924(b); State v. Rogers, 68 N.C. App. 358 (1984) (with leave of court, prosecutor may amend indictment to make separate counts out of the charges that were initially alleged in single count); State v. Beaver, 14 N.C. App. 459 (1972) (stating same principle, but finding that in circumstances presented defendant was entitled to have prosecutor elect).
The problem of duplicity often arises where the initial pleading is a citation. (Sometimes a magistrate will sign the citation, converting it to a magistrate’s order). A citation only contains two counts. The first count (numbers 1 through 15 on the citation) may be used to charge one offense only; and the second count (number 16) likewise may charge one offense only. If the citation charges more than one offense in either count, the defendant may move to require the state to elect a single offense alleged in the particular count. Ordinarily in district court, defendants make motions addressed to the pleadings at or after arraignment. See G.S. 15A-953 (motions in district court ordinarily should be made upon arraignment or during trial); G.S. 15A-924(b) (duplicity motion must be “timely”); cf. G.S. 15A-952(b)(6) (in superior court, certain motions addressed to pleadings must be made before arraignment); State v. Williamson, 250 N.C. 204 (1959) (in pre-15A case involving appeal for trial de novo in superior court, court states that motion to quash for duplicity is waived if not made before defendant enters plea).