State v. Herman

• Decision Date: 05 June 2012
• Docket Number: No. COA11–1291.,COA11–1291.
• Citation: 726 S.E.2d 863
• Parties: STATE of North Carolina v. Tracy Scott HERMAN, Defendant.
• Court: North Carolina Court of Appeals

726 S.E.2d 863

STATE of North Carolina

v.Tracy Scott HERMAN, Defendant.

No. COA11–1291.

Court of Appeals of North Carolina.

June 5, 2012.

Appeal by the State from order entered 31 August 2011 by Judge Robert T. Sumner in Superior Court, Catawba County. Heard in the Court of Appeals 25 April 2012.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Laura E. Parker, for the State.

Glenn Gerding, for defendant-appellee.

STROUD, Judge.

This matter is before this Court on the State's appeal from a trial court's order allowing Tracy Scott Herman's (“defendant”) motion to have certain portions of N.C. Gen.Stat. § 14–208.18 declared unconstitutional. As the indictment charging defendant was insufficient, we do not have subject matter jurisdiction and dismiss the State's appeal.

I. Background

On 3 January 2011, defendant was indicted for one count of being a sex offender on unlawful premises, pursuant to N.C. Gen.Stat. § 14–208.18(a)(2). On 16 August 2011, defendant filed a motion requesting that the trial court find N.C. Gen.Stat. § 14–208.18(a)(2) and (3) unconstitutional, arguing that these portions of this statute (1) violated defendant's First Amendment right to freedom of association because they are “unconstitutionally overbroad [;]” (2) are unconstitutionally so vague as to not “give notice to a reasonable citizen of whether his conduct is illegal” and to encourage “law enforcement to enforce the law in an arbitrary and discriminatory manner[;]” and (3) violated defendant's First Amendment and State constitutional rights to free exercise of religion and association. Defendant's motion came on for hearing and by order entered 31 August 2011, the trial court, after making findings of fact and conclusions of law, declared N.C. Gen.Stat. § 14–208.18(a)(2) “unconstitutional [,]” and dismissed the pending charges against defendant. On 17 August 2011, the State filed written notice of appeal from the trial court's order. On appeal, the State argues that (1) the trial court erred in determining the constitutionality of N.C. Gen.Stat. § 14–208.18(a)(2) because defendant did not have standing to challenge this statute; and (2) the trial court erred in finding N.C. Gen.Stat. § 14–208.18(a)(2) unconstitutional. Based on our recent holding in State v. Harris, ––– N.C.App. ––––, 724 S.E.2d 633 (2012), the record before us presents a preliminary jurisdictional issue.

II. Jurisdictional issue

In Harris, the defendant argued on appeal 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[ (a)(1) ] failed to allege all the essential elements of the offense defined in that statutory provision.” Id. at ––––, 724 S.E.2d at 635. Specifically, the defendant argued that the indictment was insufficient because it failed to allege that (1) the defendant was on the school premises; (2) the defendant was knowingly on the school's premises; or (3) the 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.” Id. at ––––, 724 S.E.2d at 635 (emphasis omitted). In explaining the relevant law, this Court stated

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.

“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 , 148 L.Ed.2d 498 (2000). This Court “review[s] the sufficiencyof 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, 531, 146 S.E.2d 418, 420 (1966)), disc. review denied,362 N.C. 368, 661 S.E.2d 890 (2008).

Id. at ––––, 724 S.E.2d at 635–36. The indictment in Harris stated the following:

THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 14th day of January, 2010, in Mecklenburg County, Charles Fitzgerald Harris did unlawfully, willfully and feloniously on the premises of Winget Park Elementary School, located at ... Charlotte, North Carolina. A place intended primarily for the use, care, or supervision of minors and defendant is a registered sex offender.

Id. at ––––, 724 S.E.2d at 636 (emphasis omitted). After looking at the relevant portions of N.C. Gen.Stat. § 14–208.18, this Court determined that

the essential elements of the offense defined in N.C. Gen.Stat. § 14–208.18(a) are that the defendant was (1) knowingly on the premises of any place intended primarily for the use, care, or supervision of minors and (2) at a time when he or she was required by North Carolina law to register as a sex offender based upon a conviction for committing an offense enumerated in Article 7A of Chapter 14 of the North Carolina General Statutes or an offense involving a victim who was under the age of 16 at the time of the offense. N.C. Gen.Stat. § 14–208.18.

Id. at ––––, 724 S.E.2d at 637. This Court first overruled the defendant's argument that the indictment failed to clearly allege that he went onto the school premises as the indictment stated that defendant was being charged with being “on the premises[.]” Id. at ––––, 724 S.E.2d at 637. This Court also overruled the defendant's second argument that the indictment was invalid because it did not contain the word “knowingly” as the indictment alleged that defendant acted “willfully” which was sufficient “to allege the requisite ‘knowing’ conduct.” Id. at ––––, 724 S.E.2d at 637–38. In addressing the defendant's third argument, the Court, after looking to the relevant statutes, determined that because

certain individuals are required to register as sex offenders despite the fact that they did not commit an offense that is listed in Article 7A of Chapter 14 or involved a victim under the age of 16, an allegation that Defendant was a ‘registered sex offender’ does not suffice to allege all of the elements of the criminal offense enumerated in N.C. Gen.Stat. § 14–208.18.

Id. at ––––, 724 S.E.2d at 638–39 (emphasis omitted). The Court vacated the defendant's convictions after concluding that the indictment failed to “allege every essential element of the criminal offense it purports to charge,” and therefore, the trial court was deprived of jurisdiction to enter a judgment against defendant for an alleged violation of N.C. Gen.Stat. § 14–208.18(a). Id. at ––––, 724 S.E.2d at 639 (citation omitted). The Court went on to address the State's arguments “that the ‘specific offense committed would be mere surplusage’ and that the allegation that Defendant's conduct was ‘unlawful’ gave him ample notice that his status as a registered sex offender precluded him from entering the premises of the school in question.” Id. at ––––, 724 S.E.2d at 639. In concluding that “neither of the State's justifications for upholding the challenged ‘prior offense’ allegation have merit[,]” this Court explained that [a]n allegation that the underlying offense requiring sex offender registration was an offense listed in Article 7A of Chapter 14 of the North Carolina General Statutes or involved a victim under the age of 16 is an essential element for purposes of the offense set out in N.C....