State v. Harris

• Decision Date: 03 April 2012
• Docket Number: No. COA11–1031.,COA11–1031.
• Citation: 724 S.E.2d 633
• Parties: STATE of North Carolina v. Charles Fitzgerald HARRIS.
• Court: North Carolina Court of Appeals

724 S.E.2d 633

STATE of North Carolina
v.
Charles Fitzgerald HARRIS.

No. COA11–1031.

Court of Appeals of North Carolina.

April 3, 2012.

[724 S.E.2d 634]

Appeal by defendant from judgment entered 17 May 2011 by Judge H. William Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 February 2011.

Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State.

Thomas, Ferguson & Mullins LLP, Durham, by James H. Monroe, for defendant-appellant.

ERVIN, Judge.

Defendant Charles Fitzgerald Harris appeals from a judgment sentencing him to 88 to 115 months imprisonment based upon his convictions for having been a sex offender unlawfully on the premises of a place intended primarily for the use, care, or supervision of minors in violation of N.C. Gen.Stat. § 14–208.18 and having attained the status of an habitual felon. On appeal, Defendant contends that the trial court lacked subject matter jurisdiction over this case because the indictment lodged against him failed to allege all the essential elements of the offense defined in N.C. Gen.Stat. § 14–208.18. After careful consideration of Defendant's challenge to the trial court's judgment in light of

[724 S.E.2d 635]

the record and the applicable law, we conclude that the trial court's judgment should be vacated.

I. Factual Background A. Substantive Facts

On the morning of 14 January 2010, Officers Darryl Norton and Brett Hock of the Charlotte–Mecklenburg Police Department responded to a suspicious vehicle call at an elementary school located in Charlotte. According to the caller, a black male was asleep in a vehicle parked in the school parking lot.

After their arrival at the school, the officers observed a vehicle matching that described by the caller in the location which the caller had specified. Upon approaching the vehicle, the officers found Defendant asleep in the driver's seat. At that point, Officer Norton knocked on the vehicle's window, woke Defendant, and asked for identification, which Defendant provided.

While Officer Hock ran a records check on Defendant, Officer Norton talked to him. Defendant told Officer Norton that he was at the school for the purpose of picking up his girlfriend, who worked there. After the records check revealed that Defendant was a registered sex offender, Defendant was handcuffed and placed in the back of a patrol car while the officers attempted to obtain more information about the parameters associated with Defendant's sex offender registration status.

After making appropriate inquiries, Officer Norton learned that Defendant was required to have obtained written permission from the principal or the principal's agent before coming onto school grounds. Although Officer Norton was able to verify that Defendant's girlfriend worked at the school, the school's principal stated that he did not know Defendant and that Defendant did not have permission to be on school grounds. As a result, the officers placed Defendant under arrest.

B. Procedural History

On 6 July 2010 and 23 August 2010, the Mecklenburg County grand jury returned bills of indictment charging Defendant with being a sex offender unlawfully on premises primarily intended for the use, care, or supervision of minors in violation of N.C. Gen.Stat. § 14–208.18 and having attained the status of an habitual felon. The charges against Defendant came on for trial before the trial court and a jury at the 16 May 2011 criminal session of Mecklenburg County Superior Court. At trial, the State and Defendant stipulated that Defendant was required to register as a sex offender as the result of prior convictions for attempted second degree rape and sexual battery. On 17 May 2011, the jury returned a verdict convicting Defendant of having violated N.C. Gen.Stat. § 14–208.18. After the return of the jury's verdict, Defendant pled guilty to having attained habitual felon status. Based upon the jury's verdict and Defendant's guilty plea, the trial court entered a judgment sentencing Defendant to 88 to 115 months imprisonment. Defendant noted an appeal to this Court from the trial court's judgment.

II. Legal Analysis

In his sole challenge to the trial court's judgment, Defendant contends that the trial court lacked subject matter jurisdiction over this case because the indictment purporting to charge him with violating N.C. Gen.Stat. § 14–208.18 failed to allege all the essential elements of the offense defined in that statutory provision. More specifically, Defendant contends that the indictment failed to (1) “clearly and lucidly set forth that [Defendant] was on the premises of the school[;]” (2) “allege [that Defendant] was ‘knowingly’ on the premises of the school[;]” or (3) “allege [that Defendant] had been convicted of an offense under Article 7A of Chapter 14 of the North Carolina General Statutes or an offense involving a minor child.” We conclude that at least a portion of Defendant's argument has merit.

According to N.C. Gen.Stat. § 15A–924(a)(5) an 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.

[724 S.E.2d 636]

“As a ‘[p]rerequisite to its validity, an indictment must allege every essential element of the criminal offense it purports to charge,’ ” State v. Billinger, ––– N.C.App. ––––, ––––, 714 S.E.2d 201, 206 (2011) (quoting State v. Courtney, 248 N.C. 447, 451, 103 S.E.2d 861, 864 (1958)), although it “need only allege the ultimate facts constituting each element of the criminal offense.” State v. Rambert, 341 N.C. 173, 176 459 S.E.2d 510, 512 (1995) (citation omitted). “Our courts have recognized that [,] while an indictment should give a defendant sufficient notice of the charges against him, it should not be subjected 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).

“North Carolina law has long provided that ‘[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court acquires no jurisdiction whatever, and if it assumes jurisdiction a trial and conviction are a nullity.’ ” State v. Neville, 108 N.C.App. 330, 332, 423 S.E.2d 496, 497 (1992) (quoting McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17–18 (1966)). “[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, cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (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, appeal dismissed and disc. review denied, 363 N.C. 586, 683 S.E.2d 215 (2009). “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)), disc. review denied, 362 N.C. 367, 663 S.E.2d 432 (2008). “ ‘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 (quoting State v. Fowler, 266 N.C. 528,...