202.1State’s Election of Offenses at Trial

Mutually Exclusive Offenses: Election Generally Not Required

1. General Rule

The state is ordinarily not required – either at the beginning of a trial or at the close of the state’s evidence – to elect which offenses to prosecute, even if the charged offenses are “mutually exclusive” and arise from the same transaction. See, e.g., State v. Jewell, 104 N.C. App. 350 (1991) (holding that aiding and abetting murder or being an accessory after the fact to murder are mutually exclusive offenses, but that “means only that defendant cannot be convicted of both,” not that the state cannot proceed on both). If there is sufficient evidence presented at trial to support a conviction of both offenses (that is, either offense), the judge should submit both offenses to the jury.
However, the judge must also instruct the jury that it may only convict the defendant of one offense or the other, not both. See State v. Speckman, 326 N.C. 576 (1990) (state was not required to elect between embezzlement and false pretenses, but it was error to permit conviction of both); State v. Hall, 104 N.C. App. 375 (1991) (state was not required to elect between two mutually exclusive drug conspiracies; no error when defendant was convicted of both but judge arrested judgment on the mutually exclusive offense providing greater punishment; court stated that mere consolidation of judgments would be reversible error); State v. Perry, 305 N.C. 225 (1982) overruled on unrelated grounds, 364 N.C. 394 (2010)(state may try defendant for larceny, receiving, and possession of stolen property, but defendant may be convicted of only one of these offenses); State v. Morrison, 85 N.C. 561 (1881) (state was not required to elect between larceny and receiving); see also State v. Melvin, 364 N.C. 589 (2010) (holding it was error to submit mutually exclusive offenses of both murder and accessory after the fact to murder to the jury without instructing them that they could only convict as to one or the other, but finding that the trial court’s remedy of vacating of the lesser conviction was sufficient).

2. Assault/RDO Exception

A possible exception to the rule allowing the state to proceed on mutually exclusive offenses is when the state charges both assault on a government officer under G.S. 14-33(c)(4) and resisting a public officer under G.S. 14-223, based on the same conduct. Under these circumstances, some cases have held the state must elect (at the close of the state’s evidence, not before the trial begins) which offense the state wants to be submitted to the jury. See State v. Summrell, 282 N.C. 157 (1972), overruled on other grounds by State v. Barnes, 324 N.C. 539 (1989); State v. Hardy, 298 N.C. 191 (1979). However, in light of the Speckman case cited above, it is questionable whether the appellate courts would continue to adhere to the Summrell and Hardy rulings and require the state’s election at the close of the state’s evidence. Instead, it seems more likely that both offenses could be submitted to the jury, along with an instruction that the jury may only convict the defendant of one or the other of the offenses.

Duplicity of Offenses: Election May Be Required

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). If a single count of an indictment or information charges more than offense (e.g., one count of indictment charges defendant with both breaking/entering and larceny), the defendant may, by filing a timely motion, compel the state to select a single offense upon which it will proceed to trial. See G.S. 15A-924(b); see also State v. Williamson, 250 N.C. 204 (1959) (pre-15A case involving appeal for trial de novo in superior court – court stated that motion to quash for duplicity was waived if not made before defendant enters plea). If the state fails to make an election, the court may dismiss the count for duplicity. See G.S. 15A-924(b).

Alternatively, the state may resolve the duplicity issue by moving to amend the pleading and separate the two offenses into two different counts. See State v. Stephens, 188 N.C. App. 286 (2008) (“trial court's allowing of the amendment to the indictment, by separating the existing allegation into two, separate counts, did not constitute a substantial alteration of the charge against defendant. The amendment merely was a change in form”); State v. Rogers, 68 N.C. App. 358 (1984) (with leave of court, prosecutor may amend indictment to state in separate counts charges that were initially alleged in single count); State v. Beaver, 14 N.C. App. 459 (1972) (stating same principle but finding that in this case defendant was entitled to have prosecutor elect). For more information, see the related entry on Criminal Pleadings – Amending and Correcting.