821 S.E.2d 787 (N.C. 2018), 23A18, State v. Rankin

Docket Nº:23A18
Citation:821 S.E.2d 787
Opinion Judge:BEASLEY, Justice.
Party Name:STATE of North Carolina v. Angela Marie RANKIN
Attorney:Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State-appellant. Sarah Holladay for defendant-appellee.
Judge Panel:MARTIN, Chief Justice dissenting. NEWBY, Justice joins in this dissenting opinion.
Case Date:December 21, 2018
Court:Supreme Court of North Carolina

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821 S.E.2d 787 (N.C. 2018)

STATE of North Carolina


Angela Marie RANKIN

No. 23A18

Supreme Court of North Carolina

December 21, 2018

Heard in the Supreme Court on 27 August 2018.

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Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, __ N.C.App. __, 809 S.E.2d 358 (2018), vacating defendant’s conviction upon appeal from a judgment entered on 6 July 2016 by Judge Michael D. Duncan in Superior Court, Guilford County.

Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State-appellant.

Sarah Holladay for defendant-appellee.


BEASLEY, Justice.

In this case we consider whether the Court of Appeals erred in vacating defendant’s conviction under N.C.G.S. § 14-399(a) for felony littering upon concluding that the indictment failed to allege an essential element of the statutory crime and was fatally defective, thus depriving the trial court of jurisdiction over the accused. Because we conclude that the indictment was facially invalid, we affirm the decision of the Court of Appeals.

On 27 April 2014, defendant Angela Rankin located a large metal tank containing fuel oil near a residential driveway on North Elam Avenue in Greensboro, North Carolina. Defendant wanted to take the tank to sell it as scrap metal. When she tried to lift the tank into her vehicle, she discovered that the oil inside made it too heavy to maneuver. So that the tank "wouldn’t be as heavy," defendant drained the fuel oil onto the ground and then left the scene with the metal tank. The tank was reported stolen to the City of Greensboro Police Department, and an investigation revealed that defendant had committed the theft.

On 21 July 2014, defendant was indicted for felony littering of hazardous waste, misdemeanor larceny, and misdemeanor conspiracy to commit larceny. On 5 July 2016, a jury trial was held in Superior Court, Guilford County. Defendant moved to dismiss all charges at the close of the evidence, and the trial court dismissed the conspiracy charge. The jury found defendant guilty of felony littering of hazardous waste and not guilty of misdemeanor larceny. The trial court sentenced defendant to five to fifteen months of imprisonment, suspended the sentence, and placed her on supervised probation for eighteen months.

Defendant appealed her conviction to the Court of Appeals, arguing that the trial court lacked jurisdiction because the indictment failed to allege an essential element of the crime of felony littering of hazardous waste. The Court of Appeals majority agreed and vacated the conviction. State v. Rankin, -- N.C.App. __, __, 809 S.E.2d 358, 365 (2018). One judge dissented, asserting that the indictment was facially valid because the statutory language omitted from the indictment is an affirmative defense, not an essential element of the crime. Id. at __, 809 S.E.2d at 368 (Berger, J., dissenting). The State filed a notice of appeal with this Court based on the issues raised in the dissenting opinion.

"[A] valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony." State v. Campbell, 368 N.C. 83, 86, 772 S.E.2d 440, 443 (2015) (quoting State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981) ). A valid indictment, among other things, serves to "identify the offense" being charged with certainty, to "enable the accused to prepare for trial," and to "enable the court, upon conviction, to pronounce the sentence." State v. Saults, 294 N.C. 722, 726, 242 S.E.2d 801, 805 (1978).

To be sufficient, an indictment must include, inter alia, "[a] plain and concise factual statement" asserting "facts supporting every element of a criminal offense and the defendant’s commission thereof." N.C.G.S. § 15A-924(a)(5) (2017). If the indictment fails to state an essential element of the offense, any resulting conviction must be vacated. See, e.g., Campbell, 368 N.C. at 86, 772 S.E.2d at 443; see also State v. Wagner, 356 N.C. 599, 601, 572 S.E.2d 777, 779 (2002) (per curiam). The law disfavors application of rigid

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and technical rules to indictments; so long as an indictment adequately expresses the charge against the defendant, it will not be quashed. See Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731. For example, in State v. Mostafavi the defendant argued that the indictment charging him with obtaining property by false pretenses omitted an essential element of the crime because it failed to allege the precise amount of money the defendant received when he pawned the property obtained. 370 N.C. 681, 683, 811 S.E.2d 138, 140 (2018). This Court held that the indictment was facially valid because it clearly identified "the conduct which [was] the subject of the accusation" by alleging that the defendant received United States currency by pawning stolen property as if it were his own. Id. at 687, 811 S.E.2d at 142 (quoting N.C.G.S. § 15A-924(a)(5) (2017) ).

But an indictment will be quashed "when an indispensable allegation of the charge is omitted." State v. Russell, 282 N.C. 240, 245, 192 S.E.2d 294, 297 (1972) (citations omitted). For example, in State v. Murrell the defendant challenged an indictment charging him with robbery with a dangerous weapon, arguing that an essential element of the crime— presence of a dangerous weapon— was not alleged. 370 N.C. 187, 190-91, 804 S.E.2d 504, 506-07 (2017). We noted that "the possession, use, or threatened use of firearms, or other dangerous weapon, implement, or means" was an essential element of the offense. Id. at 194, 804 S.E.2d at 509 (footnote omitted). Furthermore, this Court found the indictment facially invalid, observing that "an allegation that it ‘reasonably appear[ed] ... that a dangerous weapon was in the defendant’s possession’ is simply not equivalent to an allegation that defendant actually possessed a weapon." Id. at 196, 804 S.E.2d at 510 (alterations in original).

Likewise, when an indictment charges a defendant with a statutory offense, the document must allege all the essential elements of the offense. Id. at 193, 804 S.E.2d at 508 (citations omitted). If the words of a statute do not "set forth all the essential elements of the specified act intended to be punished, such elements must be charged in the bill [of indictment]." State v. Greer, 238 N.C. 325, 329, 77 S.E.2d 917, 920 (1953) (quoting State v. Cole, 202 N.C. 592, 597, 163 S.E. 594, 597 (1932) ); see also, e.g., State v. Hunter, 299 N.C. 29, 41, 261 S.E.2d 189, 197 (1980) (stating that although an indictment need not track the language of the statute completely, an indictment charging the violation of a statute in general terms only can be insufficient to confer jurisdiction on the trial court); State v. Cook, 272 N.C. 728, 158 S.E.2d 820 (1968) (holding that the language of a warrant for driving while license revoked, which referred to a statutory provision with intent to charge the offense therein, was facially invalid for failing to allege an essential element: that the defendant drove on a public highway).

The indictment in this case charged that defendant: unlawfully, willfully and feloniously did intentionally and recklessly spill and dispose of litter on property not owned by the defendant, the property owned and controlled by the City of Greensboro and not into a litter receptacle as defined in General Statute 14-399(A)(2). The litter discarded was hazardous waste.

The statute at issue here states: (a) No person, including any firm, organization, private corporation, or governing body, agents or employees of any municipal corporation shall intentionally or recklessly throw, scatter, spill or place or intentionally or recklessly cause to be blown, scattered, spilled, thrown or placed or otherwise dispose of any litter upon any public property or private property not owned by the person within this State or in the waters of this State including any public highway, public park, lake, river, ocean, beach, campground, forestland, recreational area, trailer park, highway, road, street or alley except:

(1) When the property is designated by the State or political subdivision thereof for the disposal of garbage and refuse, and the person is authorized to use the property for this purpose; or

(2) Into a litter receptacle in a manner that the litter will be prevented from being carried away or deposited by the

Page 792 elements upon any part of the private or public property or waters.

N.C.G.S § 14-399(a) (2017 & Supp. 2018). The indictment indisputably failed to allege facts satisfying subdivision (a)(1). The ultimate question before us is whether such facts are required; that is, whether subdivision...

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