State v. Simpson
| Citation | 763 S.E.2d 1,235 N.C.App. 398 |
| Decision Date | 05 August 2014 |
| Docket Number | No. COA14–103.,COA14–103. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | STATE of North Carolina v. Bill Raymond SIMPSON. |
235 N.C.App. 398
763 S.E.2d 1
STATE of North Carolina
v.
Bill Raymond SIMPSON.
No. COA14–103.
Court of Appeals of North Carolina.
Aug. 5, 2014.
Attorney General Roy Cooper, by Assistant Attorney General Laura Edwards Parker, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Jillian C. Katz, for defendant.
ELMORE, Judge.
Bill Raymond Simpson ("defendant") appeals his conviction of being a registered sex offender unlawfully on premises used by minors in violation of N.C. Gen.Stat. § 14–208.18(a) (2013). Defendant's appeal is before us on writ of certiorari. Defendant argues that his indictment is fatally defective and that the trial court erred in denying his motion to dismiss. After careful review, we hold that defendant's indictment was not fatally defective. However, we agree that the trial court erred in denying defendant's motion to dismiss. Accordingly, we reverse the order denying defendant's motion to dismiss.
I. Background
Defendant is a registered sex offender based on his convictions for second degree rape and felony incest in 1997. Consequently, defendant is to maintain registration on the North Carolina Sex Offender and Public Protection Registry. The State's evidence at trial tended to establish the following: On 2 September 2011, defendant went to Cub Creek Park in Wilkesboro, North Carolina ("the park" or "Cub Creek Park"). The park is a public park in Wilkesboro that features walking trails, ball fields, swings, jungle gyms, picnic areas, a dog park, a stream, a community garden, and batting cages. Defendant was sitting on a bench within the premises of the park, facing and in close proximity to the park's batting cage and ball field. Sergeant Kenneth Coles ("Sergeant Coles"), a neighbor of defendant and off-duty police officer with the Wilkesboro Police
Department, saw defendant. Because he knew that defendant was a registered sex offender, Sergeant Coles notified the police department of defendant's presence near the batting cage. Major Steve Dowell ("Major Dowell") responded to the call and arrived at the park, where he placed defendant under arrest for violating N.C. Gen.Stat. § 14–208.18(a)(2). Section 14–208.18(a)(2) prohibits registered sex offenders from being "[w]ithin 300 feet of any location intended primarily for the use, care, or supervision of
minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors[.]"
Defendant was indicted by superseding indictment for violating N.C. Gen.Stat. § 14–208.18(a)(2) and attaining habitual felon status on 23 July 2012. The matter came on for trial on 19 September 2012. The jury found defendant guilty of violating N.C. Gen.Stat. § 14–208.18(a)(2), and the State dismissed the habitual felon charge. The trial court sentenced defendant to a minimum of 19 months to a maximum of 23 months imprisonment. Defendant now appeals.
II. Analysis
A. Defective Indictment
Defendant argues that the trial court lacked subject matter jurisdiction over this case because the indictment charging him with violating N.C. Gen.Stat. § 14–208.18(a) failed to allege an essential element of the offense—that the batting cages and ball field were located on a premise not intended primarily for the use, care, or supervision of minors. We disagree.
Pursuant to N.C. Gen.Stat. § 15A–924(a)(5)(2013), a valid indictment must contain "[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation." An indictment "is sufficient in form for all intents and purposes if it expresses the charge against the defendant in a plain, intelligible, and explicit manner." N.C. Gen.Stat. § 15–153 (2013). "[T]he purpose of an indictment ... is to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused[.]" State v. Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984). The trial court need not subject the indictment to "hyper technical scrutiny with respect to form." In re S.R.S., 180 N.C.App. 151, 153, 636 S.E.2d 277, 280 (2006). "The general rule in this State and elsewhere is that an indictment for a statutory offense is sufficient, if the offense is charged in the words of
the statute, either literally or substantially, or in equivalent words." State v. Greer, 238 N.C. 325, 328, 77 S.E.2d 917, 920 (1953).
"[W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of [subject matter] jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court." State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000). This Court "review[s] the sufficiency of an indictment de novo. " State v. McKoy, 196 N.C.App. 650, 652, 675 S.E.2d 406, 409, cert. dismissed, 366 N.C. 405, 735 S.E.2d 329 (2012). "An arrest of judgment is proper when the indictment ‘wholly fails to charge some offense cognizable at law or fails to state some essential and necessary element of the offense of which the defendant is found guilty.’ " State v. Kelso, 187 N.C.App. 718, 722, 654 S.E.2d 28, 31 (2007) (quoting State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943) ). "The legal effect of arresting the judgment is to vacate the verdict and sentence of imprisonment below, and the State, if it is so advised, may proceed against the defendant upon a sufficient bill of indictment." State v. Marshall, 188 N.C.App. 744, 752, 656 S.E.2d 709, 715 (2008) (quoting State v. Fowler, 266 N.C. 528, 531, 146 S.E.2d 418, 420 (1966) ).
The superseding indictment, by which the Grand Jury charged defendant with violating N.C. Gen.Stat. § 14–208.18(a), alleged that
the defendant named above unlawfully, willfully and feloniously did as a person required by Article 27A of Chapter 14 of the General Statutes to register as a sex offender and having been previously convicted of an offense in Article 7A of Chapter 14 of the General Statutes, be within 300 feet of a location intended primarily for the use, care, or supervision of minors, to wit: a batting cage and ball field of Cub Creek Park located in Wilkesboro, North Carolina.
In North Carolina, it is unlawful for a person required to register as a sex offender under Chapter 14, Article 27A to knowingly be in any of the following locations:
(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not...
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