State v. Haddock, COA07-1050.

• Decision Date: 05 August 2008
• Docket Number: No. COA07-1050.,COA07-1050.
• Citation: 664 S.E.2d 339
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, Plaintiff, v. Kinsey Chambers HADDOCK, III, Defendant.

664 S.E.2d 339

STATE of North Carolina, Plaintiff, v. Kinsey Chambers HADDOCK, III, Defendant.

No. COA07-1050.

Court of Appeals of North Carolina.

August 5, 2008.

Appeal by defendant from judgment entered 26 April 2007 by Judge Richard W. Stone in Guilford County Superior Court. Heard in the Court of Appeals 21 February 2008.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Dorothy Powers, for the State.

Wyatt Early Harris Wheeler LLP, by Stanley F. Hammer, High Point, for defendant-appellant.

STROUD, Judge.

Defendant Kinsey C. Haddock, III, appeals from judgment entered upon a jury verdict finding him guilty of second degree rape. The dispositive question presented by this case is whether, when a criminal defendant is tried for second degree rape on the theory of mental incapacitation, it is error for the trial court to fail to instruct the jury that it must find beyond a reasonable doubt that the victim's mental incapacitation was due to an act committed upon the victim. Because we conclude that it is, we reverse defendant's conviction and remand for a new trial.

I. Background

The evidence in the record tends to show the following: On 31 December 2005 defendant accompanied the victim (or "S.B.") as the designated driver while S.B. and her friends drank alcohol to celebrate New Year's Eve. Defendant escorted S.B. to several bars and restaurants of her choice where she drank alcohol past midnight and into the early hours of the morning of 1 January 2006. Sometime between 2:00 a.m. and 4:00 a.m. on 1 January 2006, defendant, S.B., and S.B.'s friends, Krista Case and Joe Watkins went to Watkins' apartment. Watkins' roommate asked S.B. to leave the apartment around 4:00 or 5:00 a.m. because her drunken state had caused her to become loud and obnoxious. Defendant and S.B. left Watkins' apartment and went to defendant's apartment in Market Square Towers. S.B. testified at trial that she did not know where she was when she arrived at defendant's apartment and that she soon passed out from excessive drinking, falling asleep on defendant's bed. Defendant put on a condom and had intercourse with S.B. at around 6:00 a.m. on 1 January 2006.

After the act of intercourse, S.B. left defendant's apartment and went down to the lobby of the building, where she sprawled out on the floor in a "very intoxicated" state. Police officers were summoned to the lobby on account of defendant's intoxicated behavior, and they smelled alcohol as soon as they entered the lobby. S.B. was taken by ambulance to High Point Regional Hospital, where she was evaluated for possible injuries arising from excessive alcohol consumption and from sexual intercourse. She told a nurse at the hospital that she had not lost consciousness during the night.

Later that morning, police officers went upstairs to defendant's apartment and questioned him. He admitted to having sex with S.B. but asserted that it was consensual. On 8 May 2006 the Guilford County Grand Jury, alleging that defendant had sexual intercourse with S.B. "by force and against the victim's will[,]" returned an indictment for second degree rape. On 2 April 2007, a superseding indictment alleged that defendant "unlawfully, willfully and feloniously did carnally know and abuse [S.B.] who was at the time mentally disabled, mentally incapacitated, and/or physically helpless." Defendant was tried before a jury in Superior Court, Guilford County, from 9 to 13 April 2007. The jury found defendant guilty of second degree rape. Upon the jury verdict, the trial court sentenced defendant to 70 to 93 months imprisonment. Defendant appeals.

II. The Indictment

Defendant contends that the superceding indictment was facially invalid because it alleged that defendant "unlawfully, willfully and feloniously did carnally know and abuse [S.B.], who was at the time mentally disabled, mentally incapacitated and/or physically helpless." (Emphasis added.) A facially invalid indictment deprives the trial court of jurisdiction to enter judgment in a criminal case. State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208, cert. denied, 534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001). Indictments alleged to be facially invalid are therefore reviewed de novo. State v. Marshall, ___ N.C.App. ___, ___, 656 S.E.2d 709, 712, disc. review denied, ___ N.C. ___, 661 S.E.2d 890 (2008).

Although use of the phrase "and/or" in indictments has been criticized by the North Carolina Supreme Court, it is not per se fatal to the indictment. See, e.g., State v. Daughtry, 236 N.C. 316, 319, 72 S.E.2d 658, 660 (1952) (criticizing the use of "and/or" in indictments, but finding no error when the indictment was "sufficiently intelligible and explicit to (1) inform the defendant of the charge he must answer, (2) enable him to prepare his defense, and (3) sustain the judgment." (Citation and quotation omitted.)). An indictment is not facially invalid as long as it notifies an accused of the charges against him sufficiently to allow him to prepare an adequate defense and to protect him from double jeopardy. State v. Lowe, 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978). Notification is sufficient if the illegal act or omission alleged in the indictment is "clearly set forth so that a person of common understanding may know what is intended." State v. Coker, 312 N.C. 432, 435, 323 S.E.2d 343, 346 (1984).

Short form indictments are permitted in prosecutions for rape by N.C. Gen. Stat. § 15-144.1, which states in pertinent part:

(a) In indictments for rape it is not necessary to allege every matter required to be proved on the trial....

....

(c) If the victim is a person who is mentally disabled, mentally incapacitated, or physically helpless it is sufficient to allege that the defendant unlawfully, willfully, and feloniously did carnally know and abuse a person who was mentally disabled, mentally incapacitated or physically helpless, naming such victim, and concluding as aforesaid. Any bill of indictment containing the averments and allegations herein named shall be good and sufficient in law for the rape of a mentally disabled, mentally incapacitated or physically helpless person and all lesser included offenses.

N.C. Gen.Stat. § 15-144.1 (2005) (emphasis added). A short-form indictment for rape which tracks the language of N.C. Gen.Stat § 15-144.1 is sufficient to give the trial court jurisdiction to enter judgment, "even though such indictments do not specifically allege each and every element," State v. Harris, 140 N.C.App. 208, 215, 535 S.E.2d 614, 619, disc. review denied and appeal dismissed, 353 N.C. 271, 546 S.E.2d 122 (2000), because such an indictment specifies the offense "[i]n words having precise legal import [thereby] put[ting] the defendant on notice that he will be called upon to defend against proof of the manner and means by which the crime was perpetrated." Lowe, 295 N.C. at 604, 247 S.E.2d at 883-84.

Except for the insertion of the words "and/or" in place of "or" the indictment tracked the language of N.C. Gen.Stat. § 15-144.1(c) precisely. From reading the indictment, a person of common understanding would know that the intent of the indictment was to accuse defendant of having sexual intercourse with a person deemed by law to be incapable of giving consent. In turn, this language was sufficient to notify defendant of the charges against him in order to prepare an adequate defense and to protect him from being punished a second time for the same act. The indictment sub judice might have been clearer if only the word "or" or the word "and" had been used, but we hold that the use of "and/or" did not render the indictment facially invalid.

III. Unanimous Jury Verdict

Defendant contends that his constitutional right to a unanimous jury verdict was violated when the trial court gave ambiguous instructions to the jury. N.C. Const. art. I, § 24. The allegedly erroneous instruction stated, in pertinent part:

If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant engaged in vaginal intercourse with the victim, and at the time (a) the victim was so substantially incapable of appraising the nature of her conduct or resisting an act of vaginal intercourse as to be mentally incapacitated; or, (b) the victim was so physically unable to resist an act of vaginal intercourse or communicate unwillingness to submit to an act of vaginal intercourse as to be physically helpless, and that the defendant knew ... or should reasonably have known that the victim was mentally incapacitated or physically helpless, it would be your duty to return a verdict of guilty.

Defendant contends that the trial court's jury instruction was ambiguous in two ways. First, he contends that the instruction was ambiguous because it was a disjunctive instruction which offered the jury a choice between two discrete criminal acts. Second, he contends that even if simply joining the instruction on mental capacity and the instruction on physical helplessness in the disjunctive was not ambiguous, the portion of the instruction relating to mental incapacity was ambiguous because it misstated the law. The State argues that the disjunctive instruction was not ambiguous and that the law was correctly stated.

For the reasons that follow, we disagree with defendant that the disjunctive instruction improperly gave the jury a choice between two discrete criminal acts. However, we agree with defendant that the instruction was ambiguous because the jury instruction on mental incapacity misstated the law.

A. Standard of Review

Defendant did not object to the jury instructions at trial, on constitutional grounds or otherwise. In general, a constitutional issue may not be raised for the first time on appeal. State v. Chapman, 359 N.C. 328, 360, 611 S.E.2d 794, 819 (2005). However, the North Carolina Supreme Court has recognized an exception for assignments of error which allege that a...