104.9Double Jeopardy
The Same Offense
Double jeopardy is implicated when a defendant is subject to retrial for the same offense. U.S. Const. Amend. V (“the same offence”); State v. Cutshall, 278 N.C. 334, 344 (1971) (“the same offense”). “Offense” in this context means a violation of law, either statutory or common law, and includes felonies, misdemeanors, and infractions. See Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 769 n.1 (1994) (imprisonment and monetary penalties); Ex parte Lange, 85 U.S. 163, 173 (1873) (felonies, minor crimes, and misdemeanors); State v. Hamrick, 110 N.C. App. 60, 66 (1993) (infractions). Two offenses may be the same either as a matter of law – as where one offense is a lesser-included offense of the other – or as a matter of fact – as when multiple charges arise out of the same act or transaction. For a plea of former jeopardy to be good, it must be grounded on the same offense “both in law and in fact.” E.g., State v. Applewhite, 386 N.C. 431, 442 (2024); State v. Rambert, 341 N.C. 173, 175 (1995).
The Same Offense in Law
Determining whether two offenses are the same in law requires an examination of their elements. State v. Wortham, 318 N.C. 669, 671 (1987). Under the Blockburger test, two offenses are not the same in law if each requires proof of an additional fact that the other does not. E.g., State v. Banks, 367 N.C. 652, 656 (2014). Stated differently, “[i]f at least one essential element of each crime is not an element of the other, the defendant may be prosecuted for both[.]” State v. Parks, 324 N.C. 94, 97 (1989). “The determination is made on a definitional, not a factual basis.” State v. Robinson, 368 N.C. 402, 407 (2015) (quoting State v. Weaver, 306 N.C. 629, 635 (1982)).
Applying this test, the following offenses, inter alia, have been found not to be the same:
• Statutory rape of a person thirteen, fourteen, or fifteen years old, G.S. 14-27.7A, and second-degree rape, G.S. 14-27.3; State v. Banks, 367 N.C. 652, 659 (2014).
• Attempted murder, G.S. 14-17, and assault with a deadly weapon with intent to kill inflicting serious injury, G.S. 14-32; State v. Tirado, 358 N.C. 551, 579 (2004).
• First-degree murder, G.S. 14-17, and first-degree kidnapping, G.S. 14-39; State v. Tirado, 358 N.C. 551, 591-92 (2004).
• First-degree kidnapping, G.S. 14-39, and assault with a deadly weapon inflicting serious injury, G.S. 14-32. State v. Tirado, 358 N.C. 551, 592 (2004).
• First-degree murder, G.S. 14-17, and felony child abuse, G.S. 14-318.4; State v. Elliott, 344 N.C. 242, 278 (1996).
• First-degree sexual offense, G.S. 14-27.4, and indecent liberties, G.S. 14-202.1; State v. Swann, 322 N.C. 666, 678 (1988).
• First-degree rape, G.S. 14-27.2, and indecent liberties, G.S. 14-202.1; State v. Rhodes, 321 N.C. 102, 106 (1987).
• Second-degree rape/sexual offense, G.S. 14-27.3, 27.5, and custodial sexual offense, G.S. 14-27.7. State v. Raines, 319 N.C. 258, 266 (1987).
• Obstruction of justice and accessory after the fact to murder; State v. Cousin, 233 N.C. App. 523, 537 (2014).
• Possession of ecstasy, G.S. 90-89(3)(a), and possession of ketamine, G.S. 90-91(b)(12), contained in a single pill; State v. Hall, 203 N.C. App. 712, 718 (2010).
• Discharging a weapon into occupied property, G.S. 14-34.1 and assault with a deadly weapon inflicting serious injury, G.S. 14-32; State v. Allah, 168 N.C. App. 190, 196 (2005).
• Armed robbery, G.S. 14-87, and kidnapping, G.S. 14-39; State v. Evans, 125 N.C. App. 301, 304 (1997).
Lesser Included Offenses
A lesser-included offense is a crime that is composed of some, but not all, of the elements of a more serious crime. State v. Etheridge, 319 N.C. 34, 50 (1987). State v. McGee, 197 N.C. App. 366, 372 (2009). Invariably then, the lesser-included offense requires no proof beyond that required for the greater offense, and the two offenses are considered the same in law. State v. Etheridge, 319 N.C. 34, 50 (1997); State v. Edwards, 49 N.C. App. 547, 558 (1980). “If what purports to be two offenses actually is one under the Blockburger test, double jeopardy prohibits successive prosecutions.” State v. Gardner, 315 N.C. 444, 454 (1986).
The following offenses, inter alia, have been found to be the same offense in law:
• Armed robbery, G.S. 14-87, and larceny, G.S. 14-72; State v. White, 322 N.C. 506, 518 (1988).
• Armed robbery, G.S. 14-87, and assault with a deadly weapon, G.S. 14-33; State v. Hill, 287 N.C. 207, 216 (1975).
• Manufacture, sale, or delivery of marijuana, G.S. 90-95(a) and trafficking in marijuana by manufacture, sale, or delivery, G.S. 90-95(h)(1); State v. Sanderson, 60 N.C. App. 604, 610 (1983).
• Assault with a deadly weapon, G.S. 14-32, and assault with a firearm upon a law enforcement officer, G.S. 14-34.2. State v. Partin, 48 N.C. App. 274, 282 (1980).
The Same Offense in Fact
Determining whether two offenses are the same in fact requires an examination of the evidence offered in support of each. See State v. Rambert, 341 N.C. 173, 175 (1995); State v. Hendricksen, 257 N.C. App. 345, 350 (2018). For offenses to be the same in fact, the same evidence must support a conviction in both cases. State v. Dale, 245 N.C. App. 497, 507 (2016). This is sometimes referred to as “the same evidence test.” State v. Hicks, 233 N.C. 511, 516 (1951). The test asks two somewhat alternative questions:
1. Whether the facts alleged in the second indictment if given in evidence would have sustained a conviction under the first indictment, or
2. Whether the same evidence would support a conviction in each case.
State v. Irick, 291 N.C. 480, 502 (1977); State v. Newman, 186 N.C. App. 382, 387 (2007). When the evidence shows the underlying conduct supporting each charge is separate and distinct, there is no bar to prosecuting a defendant for each count. The following cases are illustrative.
• The defendant’s guilty plea to two counts of misdemeanor possession of stolen goods based on two lottery tickets obtained during an armed robbery did not preclude prosecution and punishment for the armed robbery of money and hundreds of additional lottery tickets. State v. Hendricksen, 257 N.C. App. 345, 350-51 (2018).
• The defendant could be sentenced for two counts of manufacturing methamphetamine where two separate and distinct locations contained two separate manufacturing processes. State v. Maloney, 253 N.C. App. 563, 572 (2017).
• The defendant could be sentenced for both attempted larceny and attempted robbery where each offense involved a different victim. State v. Miller, 245 N.C. App. 313, 317 (2016).
• The defendant could be sentenced for both armed robbery and assault with a deadly weapon where there was a distinct interruption in time between the taking of property from the victim and the assault on the same victim. State v. Ortiz, 238 N.C. App. 508, 515 (2014).
• The defendant could be convicted of two counts of attempted murder and two counts of felonious assault where there were two victims and the defendant assaulted and attempted to kill each one. State v. Washington, 141 N.C. App. 354, 370 (2000).
• The defendant could be convicted of two counts of armed robbery where he took personal property from each of two victims. State v. Wheeler, 70 N.C. App. 191, 195 (1984).
Multiple Charges
Granting that the same act or transaction may give rise to multiple charges, there remains the question of how many counts the same course of conduct will support. If a person robs a store by threatening two employees, for example, is that one robbery or two? State v. Potter, 285 N.C. 238, 253 (1974) (one robbery); State v. Ballard, 280 N.C. 479, 490 (1972). Courts may address this issue by considering the unit of prosecution or the continuing offense.
Unit of Prosecution
The legislature may so define a statutory offense as to limit the number of counts that may be charged based on a single course of conduct. State v. Smith, 323 N.C. 439, 441 (1988); cf. Brittany L. Bromell, Units of Prosecution: Charging Multiple Counts for the Same Conduct, Administration of Justice Bulletin, No. 2022/01, September 2022. Thus, determining the allowable unit of prosecution involves statutory construction. The following cases are illustrative:
• Human trafficking under G.S. 14-43.11 is not a continuing offense but each violation is a separate offense. State v. Applewhite, 386 N.C. 431, 435 (2024).
• Weapons on campus, G.S. 14-269.2, is committed only once by simultaneous possession of multiple firearms. State v. Conley, 374 N.C. 209, 214 (2020).
• Possession of a stolen firearm, G.S. 14-71.1, is committed only once by simultaneous possession of multiple firearms. State v. Surrett, 217 N.C. App. 89, 99 (2011).
• Larceny of a firearm, G.S. 14-72(b)(4), is committed only once when multiple firearms are stollen during a single larceny. State v. Boykin, 78 N.C. App. 572, 577 (1985).
In construing criminal statutes, courts resolve any ambiguity against the state. State v. Smith, 323 N.C. 439, 442-43 (1988); State v. White, 127 N.C. App. 565, 570 (1997). Once the legislature has defined the offense, “that prescription determines the scope of protection afforded by a prior conviction or acquittal.” Sanabria v. United States, 437 U.S. 54, 70 (1978).
Continuing Offenses
A continuing offense is “a breach of the criminal law not terminated by a single act or fact, but which subsists for a definite period” and is intended to cover successive occurrences. State v. Maloney, 253 N.C. App. 563, 571 (2017). Felony stalking, for example, requires proof of multiple acts. State v. Fox, 216 N.C. App. 144, 151 (2011). Defendants may not be convicted for continuous offenses if the offenses alleged cover the same date range, as this runs afoul of double jeopardy protections. State v. Applewhite, 386 N.C. 431, 441 (2024). The following offenses have been treated as continuing offenses:
• kidnapping, State v. White, 127 N.C. App. 565, 571 (1997).
• assault, State v. Dew, 379 N.C. 64, 72 (2021); State v. Brooks, 138 N.C. App. 185, 189 (2000).
• robbery, State v. Fambrough, 28 N.C. App. 214, 215 (1975).
• larceny, State v. Martin, 47 N.C. App. 223, 232 (1980).
• possession of stolen property, State v. Watson, 80 N.C. App. 103, 106 (1986); State v. Davis, 302 N.C. 370, 374 (1981).
• felony stalking under G.S. 14-177.3A, State v. Fox, 216 N.C. App. 144, 151 (2011).
• keeping or maintaining a dwelling for keeping or selling drugs, G.S. 90-108(a)(7), State v. Grady, 136 N.C. App. 394, 400 (2000).
By contrast, some offenses are categorically discontinuous. Rape is not a continuing offense, but each act of intercourse will support a separate conviction. State v. Dudley, 319 N.C. 656, 659 (1987); State v. Small, 31 N.C. App. 556, 559 (1976). Similarly, multiple rapid shots from a single firearm are discontinuous – at least when shot each requires a deliberate pull of the trigger. State v. Rambert, 341 N.C. 173, 177 (1995); State v. Ray, 97 N.C. App. 621, 625 (1990). In determining whether an offense is continuous, relevant factors include the temporal proximity of the acts, any change in location, and any intervening events. State v. Dew, 379 N.C. 64, 72 (2021); State v. Calderon, 290 N.C. App. 344, 354 (2023), disc. review allowed, 901 S.E.2d 814 (2024).