The General Assembly Must Amend Existing Law and Ban or Regulate Non-Native Venomous Snakes in NC

In 2017, the North Carolina General Assembly directed the N.C. Department of Natural and Cultural Resources and N.C. Wildlife Resources Commission to 1) jointly study and develop a list of potential designated representatives for the storage and safekeeping of reptiles regulated under G.S. Chapter 14 Article 55, and 2) study and develop recommendations for potential procedural and policy changes to improve the regulation of certain reptiles pursuant to Article 55 of Chapter 14. Although the report was prepared and submitted on December 31, 2017, over three years have passed and the General Assembly has failed to amend the law.

The report stated that in 1949 when Article 55 was passed, the law was designed to prevent the unsafe handling of native venomous snakes in public spaces during religious events. The report noted: “With current technology, it is now possible to order a variety of potentially dangerous animals from all over the globe and have them shipped to one’s door.”

The report noted the significant danger inherent in the easy procurement of non-native venomous snakes. (1) The increasing number of people improperly keeping these snakes leads to increased violations of the law and (2) the need for the investigation and involvement by NC Museum of Natural Sciences, NC Zoo employees, and law enforcement officers who must handle and transport these dangerous snakes. The investigatory personnel is then put at risk for venomous snake bites by non-native snakes for which there is no locally available antivenom.1

The current NC law requires only that venomous snakes must be housed in a sturdy and secure enclosure. Enclosures must be designed to be escape-proof and bite-proof, have an operable lock, and be properly labeled. (NCGS § 14-417). If the snake escapes, the owner must notify the local law enforcement immediately. Violation results in a Class 2 Misdemeanor. If the snake harms or kills a person outside of the possessor’s family, the penalty is an A1 misdemeanor. If the possessor intentionally releases the venomous snake, the penalty is an A1 misdemeanor.

Other states typically favor either a complete ban on ownership of non-native venomous snakes or legal possession with a permit or license. North Carolina has no state prohibition and leaves it up to the individual counties to ban the snakes. Only North Carolina and several other unregulated states have no pre-requisites or limitations to non-venomous snake ownership.2

The General Assembly must immediately act to amend the existing law on possession of non-native venomous snakes. Without a doubt, the safest course of action for the public as well as for the enforcement personnel is a complete ban on possession of non-native venomous snakes.

Alternatively, should the General Assembly refuse to ban these “pets,” at a minimum, the 2017 report’s recommendations must be considered as well as the imposition of a permit or license requirement with periodic inspections, felony penalties for death or injury due to an escaped snake, substantial fines and restitution for all costs incurred in the capture, care, and boarding of the snake while civil and or criminal charges are pending. Additionally, the law should mandate humane enclosures and require training as a prerequisite to the issuance of any permit or license.

Permit or License Requirements
Under Tennessee law, venomous snakes are deemed “inherently dangerous” and permit applicants must have at least two years experience in the handling or care of the Class I species for which the applicant is applying, or, in the alternative, must take a written examination, developed and administered by the agency, evidencing basic knowledge of the habits and requirements, in regard to proper diet, health care, exercise needs and housing of the species to be covered by the permit, and has a protocol in place should the venomous snake escape. The possessor must live on-site or have a resident caretaker and the property size must be no less than one acre for a personal possession permit and three (3) acres for a commercial propagator facility permit, and may not be located in a multi-unit dwelling or trailer park. (Tenn. Code Annot. § 70-4-401, §70-4-403, and §70-4-404)

In Florida, permit applicants must provide a complete inventory of reptiles, have at least 1,000 hours of experience for each family of venomous reptiles requested, maintain an incident/disaster plan and a venomous reptile bite protocol, and provide at least two references, one of whom must have a venomous reptile permit. Those seeking the license must pay a fee of $100 and also have a bond of $10,000.

Periodic Inspections of Permitted Snakes
Florida law forbids possession of venomous snakes unless the owner has obtained a special permit or license from the Fish and Wildlife Commission. The commission conducts periodic inspections to determine whether the snakes are securely and properly penned. (F.S.A. 379.372(1)). Failure to abide by the regulations results in revocation of the permit or license, a violation of the criminal statute, and an assessment of the costs associated with or incurred due to the capture, transport, boarding, veterinary care are due upon the finding of guilt of any criminal or civil violation of the law. (F.S.A. 379.401).

Humane Enclosure Restrictions
Indiana law requires that a venomous snake of less than 6’ long be allocated an enclosure not less than 1.5 times the length of the snake and snakes 6’ long and above be allocated an enclosure of at least 2 times the length of the snake. Additional requirements for cage materials, features, and locks are specified in the statute. (312 Ind. Admin. Code 9-11-13.5.)

In summary, the NC General Assembly must act immediately to protect the public from these dangerous reptiles by enacting a complete ban on non-native venomous snakes. If the legislature refuses to ban the snakes, they must ensure public safety by considering the concerns enunciated in the 2017 REPORT TO THE NORTH CAROLINA ENVIRONMENTAL REVIEW COMMISSION ON CHAPTER 14, ARTICLE 55 OF THE NORTH CAROLINA GENERAL STATUTES: SUBMITTED JOINTLY BY THE NORTH CAROLINA DEPARTMENT OF NATURAL AND CULTURAL RESOURCES AND NORTH CAROLINA WILDLIFE RESOURCES COMMISSION as well as requiring a strict permit or licensing protocol with periodic, random inspections, require humane enclosures, hold possessors of snakes to best practices for snake maintenance and handling and increase civil and criminal penalties for violations of the law.

No longer can public safety be jeopardized by persons such as Christopher Gifford, owner of 75 snakes and the recently escaped venomous spitting Zebra Cobra. One needs only to watch one of Mr. Gifford’s TikToc videos to recognize the inherent danger of permitting non-native venomous snakes to be possessed by the public.

1 “A point of major concern to the agencies and individuals involved in Article 55 violations over the years has been the quantity and variety of venomous snakes encountered that has no locally available antivenom (often not even available in nearby states). This increases the agencies’ concern about the safety and welfare of their employees and the public.” (Id., at p.7)
2 Nebraska, New Mexico, South Carolina, and Wisconsin also have no requirements.

If You Pled Guilty to a Reduced Charge, the Conviction could be Illegal

Oftentimes in an effort to encourage a guilty plea, the prosecutor will reduce a criminal charge to a less serious offense. In the recent case of State of North Carolina v. Bryant COA 19-175 (Oct 2019), the court ruled that the District Court had no jurisdiction when the District Attorney amended a Larceny charge to the less serious offense of Shoplifting and the defendant entered a plea to the Shoplifting.

In Bryant, the District Attorney struck a line through the Larceny charge and wrote “Shoplifting,” initialed and dated this alteration. The court ruled that this amendment was improper because it changed the nature of the offense charged; Larceny and Shoplifting are separate statutory offenses requiring proof of different elements. Larceny, a Class 1 misdemeanor, requires the intent to steal at the time of the taking. Shoplifting, a Class 3 misdemeanor, has no intent requirement; it is the willful concealment without authority of the merchandise of the store.

The law states that the prosecutor may amend a citation, warrant or other charging document anytime unless the amendment changes the nature of the offense charged. If the charge is to be changed to a different offense, the prosecutor must file a Misdemeanor Statement of Charges.1 (NCGS 15A-922)

Here, since the Shoplifting amendment changed the nature of the offense, a Misdemeanor Statement of Charges was required and the lack of this charging document rendered the amendment improper and the court was without jurisdiction when it accepted the plea.

If you have a conviction for a charge which was the product of an amendment, ascertain if it was the same offense or a different one. Larceny reduced to Attempted Larceny is an example of the same offense but Larceny reduced to Shoplifting or Trespass would be a different offense. If the amendment was the product of an interlineation and no Misdemeanor Statement of Charges was filed, a Motion for Appropriate Relief based upon lack of jurisdiction is well-taken.

1. A Misdemeanor Statement of Charges is a criminal pleading charging a misdemeanor, signed by a prosecutor which supersedes all previous pleading. This form of amending the pleading permits the charging of offenses of the same or different class. G.S. 15A-922(d).

Evaluation of the Amber Guyger case under NC Law

In the pending Texas case, Amber Guyger entered the darkened apartment of Botham Jean, shot and killed him. She claimed that she erroneously believed the apartment to be hers and believed that Mr. Jean was a burglar. As an off-duty police officer, her firearm was easily accessible. Since the apartment was dark, she could only perceive Mr. Jean as a silhouette. After shouting commands and without turning on the lights, she fired her weapon and killed Mr. Jean. Only after shooting him, did she turn on lights thereby ascertaining that she was not in her apartment after all. The authorities filed the lesser crime of manslaughter. What would have happened in North Carolina?
ISSUE #1: Is this murder or manslaughter? The undisputed facts show only that the lawful occupant, Mr. Jean was shot by Ms. Guyger. The only way a manslaughter charge could have been filed in the Texas case is if the affirmative defense of Imperfect Self-Defense was accepted whole-heartedly by the Texas authorities. Imperfect Self-Defense occurs when the defendant believed it is necessary to kill her adversary in order to save herself from death or great bodily harm. In addition, defendant’s belief must be reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness. (State v. Ross (1994) 338 N.C. 280, 283, 449 S.E.2d 556, 559–60.)
Whether Ms. Guyger’s belief was reasonable is quite debatable and should be put before the trier of fact. If Ms. Guyger would have turned on the lights, she would have realized immediately that she was the interloper. Is it reasonable for her to shoot into the dark apartment when her safety had not been threatened? At trial, it would be Ms. Guyger’s obligation to prove the affirmative defense and the jury would decide whether she has sustained that burden or not. The self-defense case is not so ironclad that it negates the probable cause to believe that a second-degree murder was committed. The proper charge under North Carolina law would be second-degree murder and not the lesser charge of manslaughter.
ISSUE #2: Does Ms. Guyger have a good affirmative defense? Under North Carolina law, would Guyger’s mistake of fact constitute a complete or partial affirmative defense? Short answer: no. In North Carolina, she would properly face a second-degree murder charge and should be convicted of the same. Amber Guyger was the aggressor, did not have a lawful right to be in Mr. Jean’s apartment and did not act reasonably.
Under North Carolina law, a person can use deadly force if the person reasonably believes that the conduct is necessary to defend herself against the other’s imminent use of unlawful force or if that person is in their own home. (NCGS § 14-51.2, NCGS § 14-51.3)
According to her version, Mr. Jean’s silent presence would not be sufficient to cause a reasonable person to believe that any force was imminent and despite her confusion, Ms. Guyger was not in her home and did not have a lawful right to be there; only Mr. Jean did. Only Mr. Jean had the right to defend his home against the true intruder, Ms. Guyger, and any force he could have used would have been lawful. (NCGS § 14-51.2.) Under North Carolina law, only Mr. Jean was a lawful resident of the apartment and could use deadly force.

1. As an off-duty police officer acting in the capacity of a private person, her actions should be judged as any other civilian.
2. The lawful occupant of a home is presumed to have held a reasonable fear of imminent death or serious bodily harm to himself if both of the following apply: (1) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a home and (2) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (c) The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances: (1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the home. (NCGS§ 14-51.2. (b)(c))

Homicide and Manslaughter Charges Now Filed for Hazing Deaths

Injuries and death caused by hazing are no longer excused or treated with a slap on the wrist. Prosecutors are bypassing misdemeanor hazing charges for the much more serious murder and manslaughter charges when death results from a hazing ritual.
“Go back a generation or two, and hazing was accepted conduct, part of the fraternity experience, part of the football experience,” said David LaBahn, president of the Association of Prosecuting Attorneys. Now it’s no longer ‘boys will be boys’ and ‘why is the prosecutor getting involved in this?’ I think there is much more acceptance out there that this is unlawful behavior.”
Three cases: LSU, Penn State and Baruch College illustrate this new reality:
At LSU: On September 13, 2017, at the Phi Delta Theta house, an 18-year-old pledge died of acute ethanol intoxication with aspiration after playing a drinking game. His blood alcohol content was .496 percent, more than six times the legal limit. He and other pledges had received text messages ordering them to report for “Bible study at the chapter house. “Bible study,” was question-and-answer game during which pledges were forced to drink “a pull” from a bottle of alcohol if they answered questions incorrectly. The 19-year-old fraternity member who was in charge of the hazing event and who aggressively insisted that the pledge drink was charged with negligent homicide and misdemeanor hazing. Nine other students are currently facing hazing misdemeanors and expulsion.
At Penn State: On February 2, 2017 at the Beta Theta Pi house, pledges were forced to line up for a “gauntlet” of drinking stations. First, they passed a vodka bottle down the line. Each pledge was ordered to drink before moving to the next station. The pledges were then ordered to “shotgun” a beer, and made to drink from a wine bag. Finally, the were obligated to finish with beer pong. In a group message sent shortly before midnight, one of the fraternity members texted that an 18-year-old pledge had fallen 15 feet down a flight of stairs and would need help.” Video from the fraternity showed the pledge stumbling and hitting his head on a railing, on the stone floor and on a furniture. A few times, a fraternity brother walked into the lobby, saw the pledge lying on the couch and failed to render aid. Instead he was “back-packed.” A backpack stuffed with textbooks was placed on his back to weigh him down so that he would not roll over and choke on his vomit. While he drifted in and out of consciousness, fraternity brothers splashed water on his face in an effort to revive him. Twelve hours after the gauntlet game commenced, 911 was alerted but by then he had died. Eighteen Penn State students were charged: eight with involuntary manslaughter and ten with hazing misdemeanors and furnishing alcohol to minors.
At Baruch College: On December 9, 2013, a Pi Delta Psi pledge participated in a ritual called the “Glass Ceiling.” He was blindfolded and made to wear a backpack weighted with sand while crossing a frozen field as members of the fraternity tackled him. During at least one tackle, he was lifted up and dropped on the ground in a move known as “spearing.” He complained his head hurt but continued participating and was eventually knocked unconscious. Fraternity members carried him inside and contacted a national fraternity official who told them to hide fraternity items. Some members left the house, while others changed his clothes and conducted internet searches to diagnose his symptoms. When the pledge experienced trouble breathing, he was driven to the hospital where he died of severe head trauma. Initially, 37 people were charged in connection with his death and faced assault and hindering apprehension charges. Five fraternity members were charged with third-degree murder which did not require a specific intent to kill. Eventually, four of the men who had been charged with murder pleaded guilty to reduced charges of voluntary manslaughter and hindering apprehension.


In an effort to keep pace with the posting of sexual or private images, videos and live stream on social media, the North Carolina Revenge Porn statute, G.S. 14‑190.5A, has been significantly modified. The Revenge Porn law is the mechanism by which public disclosure of intimate images is criminally punished. Previously the law required that a “personal relationship” exist between the defendant and the subject of the image but no longer. All that is required is the publication of intimate content intended for humiliation, coercion, intimidation or financial loss. Violation of the statute is a felony for adults and repeat offender minors and a misdemeanor for those under 18. The crime is complete if the defendant:
(1) posts an image, video or live stream,
(2) of “naked human parts” (genitals, pubic area, anus, woman’s nipple) or sexual, excretory or lewd exhibitionistic activity,
(3) of a person who is identifiable either in the image or by accompanying information,
(4) without that person’s consent or with an expectation that the image would remain private and
(5) disclosure is intended to harass, intimidate, embarrass or cause financial
loss to the depicted person.
Under this modification, the defendant does not even have to know the victim and the victim doesn’t have to be aware of the taking of the image(s). Photographing a person with a telephoto lens when they were unclothed or engaging in a sexual act would qualify if performed with the required intent.
I can foresee First Amendment challenges to some of the wording used: “normal or perverted” and “clad in revealing or bizarre costume.” Additionally, the legislature expressly mentioned that the scenario wherein an identifiable person’s head was superimposed onto another body was not within the scope of this law but would be “studied” and may be the the subject of the next modification.


Under state and federal gun laws, a person who has been involuntarily committed to a mental health facility may not possess a firearm. (NCGS§14-404(c)(4), 18 U.S.C. § 922(d)(4)) However, this prohibition may be lifted by complying with the restoration protocol articulated in NCGS§ 14-409.42.
Step 1: File and serve a petition in the same district court which adjudicated the involuntary commitment once the commitment has ended and once the mental condition which led to the commitment has been treated. The petitioner must be able to prove that he/she will not be likely to act in a manner dangerous to public safety and that the restoration of the firearm rights would not be contrary to the public interest. Petitioner must sign a release of information so the prosecutor can obtain mental health records for the hearing.
Step 2: At the hearing, the district attorney can present evidence from petitioner’s mental health records, juvenile records, and criminal history. The judge will decide the case on the following items of evidence: the petitioner’s mental health and criminal history records, the petitioner’s reputation or other character evidence, and any changes in the petitioner’s condition or circumstances since the original determination or any findings relevant to the relief sought.
Step 3: The judge will decide if the petitioner has proven that he/she is not likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. If the judge rules in petitioner’s favor, the clerk of court will send the order to the National Instant Criminal Background Check System (NICS) and the prohibition against firearm possession is lifted.
Step 4: If the judge rules against petitioner, the case can be appealed to the Superior Court for a new hearing. If the Superior Court denies the petition, then the applicant must wait a minimum of one year before reapplying.


ISSUE: Why would a teen aged girl on the college track and with the financial ability to buy a desired item steal?

A significant percentage of the theft cases I handle are committed by teens who consciously choose to jeopardize their academic and professional futures by stealing despite the fact that they have money. When caught, the girl who intentionally committed the theft oftentimes with premeditation and planning cannot seem to comprehend or explain why she stole. This Blog attempts to elucidate reasons for this seemingly irrational behavior. Each reason will be discussed in separate Blog chapters.

Part 1: The reasons for teen self-sabotage are:
1) Biological (brain development, hormonal and emotional) infirmities and liabilities inherent to all teens
2) Self-imposed pressure to succeed
3) Parental pressure to succeed
4) Pressure to meet society’s standards for physical beauty
5) Pressure to achieve in non-traditional fields of study and sport while still adhering to feminine norms.
6) The desire to engage in risk taking activities as an emotional coping mechanism.

Why Do People Steal When They Have Money?

Theft from a retail store or from one’s employer is a common charge in criminal court. Sometimes, my client is aware of the motivation for the theft but often the client seems bewildered by his/her own actions. Why do people who have the money to buy a desired object try to steal it anyway? This blog will focus on adults who commit theft and a separate blog will address teen-age theft.

Many people steal because they feel that life has shorted them in some respect and by stealing, they are taking steps to correct this injustice. It is irrelevant that the store where the property was stolen had nothing to do with the deprivation; it is the fact that something of value has been obtained without payment which triggers a feeling of vindication.

Emotional deprivation occurs when feelings of rejection or unmet personal expectations motivate a desire to remedy one’s misfortune. By taking a desired item, he/she is trying to balance life’s injustices with a windfall. “The question they’re asking is, “How can I make up for what I feel has been taken from me?” Stealing offers—at least momentarily—relief, peace, and completion. For a few minutes, they’ve made life fair again.” (Shulman, Something for Nothing: Shoplifting Addiction and Recovery.)

Financial deprivation occurs when the person has less money, assets or material goods currently as compared with a time previously. It could be a paper loss such as a fall in the stock market or it could be a diminution in their standard of living. Alternatively, the person feels that he/she has less money, assets or material goods than friends, peers or celebrities.
Entitlement occurs when a person feels that they deserve more than what they are receiving in the sale transaction. Although similar to deprivation, entitlement occurs in a predominantly affluent person who believes that moral precepts do not apply to him/her.

“It becomes a cat-and-mouse game: What are you going to see me take today? They’d pay for one of the things they were still holding but drop something extra in their shopping bag, like their own version of a free gift,” said a former Sephora employee who detained a woman for hiding cosmetics and skin products behind her baby’s head in an $800 stroller. An Anthropologie employee commented that the thieves were their best paying customers; some upper middle class women buy very expensive clothing and then “accessorize” for free. “We were taught that our prime shoplifters were women and girls who were regular shoppers” said one ex-employee, who every night would find piles of security tags in the fitting rooms which had been removed from apparel that day. “They would spend insane amounts and at the same time steal a few items because they felt that since they had spent so much money, they were entitled to freebies.”

A manager from Macy’s concurred, “It’s often the best customers who steal the most. They’re spending $100,000 a year, but just stole a bag for $5,000,” the ex-staffer said. (Jamieson, Why The Rich Feel Entitled to Shoplift, The New York Post, Aug. 9, 2015)

Instead of motivation preceding action, a theft case can present an example of action preceding motivation. Since impulsive and unexamined acts can result in detrimental consequences, I have to grudgingly admit that my mother’s adage, “Think before you act” is sound advice.


This week in court, a 19 year old facing a felony drug case characterized the criminal allegations and the corresponding suspension from his university as a “bump in the road.” His life had been on hold for six months while the criminal case was pending. He had been kicked out of college and was back living with his family. The tuition and dorm fees secured by parental personal loans had been forfeited. A 28 day residential drug treatment, paid for by his parents and their health insurance had been completed last year but the defendant had continued to smoke marijuana. As the defendant spoke, it was apparent that he alone failed to appreciate the severity of his situation.

To all Millennials: if you find yourself facing a felony charge, here are some tips:

1. This is serious. A felony conviction will bar you from desired education, employment, immigration, licensing and additional significant opportunities. You have gone through life with your parents, teachers etc. minimizing characterizations of harsh situations. All sugar coating aside, it is time to dig deep and comprehend that there are consequences to actions.
2. Once you can appreciate that this is some serious shit, begin to work with your lawyer to formulate a strategy for your defense. The goal is to protect your future even if it means sacrifice in the present. A reduction in charges or a dismissal is worth suffering through jail, community service, rehab or counseling. Be grateful if you get this chance.
3. If you are asked questions by the judge or an attorney, THINK before you answer. A glib or thoughtless comment will reflect really badly and possibly make the judge or the prosecutor withdraw the break that was about to be bestowed upon you. This is referred to this as “snatching defeat from the jaws of victory.” Don’t let it happen to you.
4. If you are put on probation, given a deferred judgment or conditional discharge, don’t blow it. If you violate the terms of probation, you will go to prison. State prison. Not television prison, not “Orange is the New Black” prison but scary real life prison where you are locked in with dangerous adult criminals. If you are given a conditional discharge or deferral, you have an OPPORTUNITY to earn a dismissal. Fulfill your obligations and don’t pick up any new charges and get that dismissal. Once dismissed, the case can be expunged and you can begin anew with an unmarred future and a lot more wisdom.

16-17 year olds catch a break in Orange County: Misdemeanor Diversion Program

North Carolina is one of only two* states who treat 16-17 year olds as adults for criminal law purposes but effective April 15, 2016, a misdemeanor diversion program will ameliorate this inequity. Instead of being arrested or receiving a citation for alleged misdemeanor violations, a “youth citation” will be issued and participation in an in a diversion plan tailored to the needs of the specific teen is required. Successful completion of community service and any recommended counseling or substance abuse rehabilitation will result in the absence of filing of criminal charges. No tangible or computer record of the offense will exist and no mug shot will be taken which could hamper one’s future educational, employment or personal opportunities.
The diversion program is administered by the Criminal Justice Resource Manager and should take approximately 90 days to complete. Only teens with no prior criminal record and with allegations that are not sex-based will qualify for participation.
While we should continue to fight to amend the statute and increase the age for criminal responsibility from 16 to 18 years, Orange County teens can now join Durham County teens in catching a break.

* New York is the other state.