State v. Powell
| Decision Date | 01 July 2014 |
| Docket Number | No. COA13–1109.,COA13–1109. |
| Citation | 763 S.E.2d 16 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Randal Eugene POWELL. |
Attorney General Roy Cooper, by Special Deputy Attorney General Harriet F. Worley, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant.
Defendant Randal Eugene Powell appeals from a judgment sentencing him to a term of 300 to 369 months imprisonment based upon his conviction for first degree statutory sex offense in violation of N.C. Gen.Stat. § 14–27.4A(a). On appeal, Defendant contends that the trial court lacked jurisdiction to enter judgment against him in this case on the grounds that the indictment that had been returned against him was fatally defective. After careful consideration of Defendant's challenge to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should remain undisturbed.
B.W. and T.W. were ages 14 and 12, respectively, at the time of trial.1 The two girls had lived with their mother and Defendant, who was their mother's live-in boyfriend and who was over the age of eighteen, at all relevant times.
According to Bethany and Tonya, Defendant sexually abused both girls over an extended period of time, with this abuse invariably having occurred while their mother was at work. During the course of these episodes, Defendant would engage in vaginal intercourse with Bethany while the other children were bathing or watching television. Although Defendant rubbed his penis in the vicinity of Tonya's vagina and inserted his penis into her anal opening, he never penetrated her vagina with his penis. According to Tonya, the same things that happened to her happened to Bethany. The children never told anyone about the abuse because they were afraid. Although Bethany attempted to write a letter to her mother in which she detailed what Defendant was doing to her, Defendant intercepted the letter and ripped it apart before she could deliver it to her mother.2
As a result of conduct unrelated to this case, the Department of Social Services removed the children from their mother's care and placed them in the home of their maternal grandmother in September of 2010. In approximately November of 2010, Bethany and Tonya informed their grandmother that Defendant had “raped” them. Although these actions had been going on for years, Bethany finally came forward out of fear that she would become pregnant and get in more trouble. After learning of the children's allegations, their grandmother called the police.
On 15 November 2010, the children were taken for a physical evaluation. According to the information developed during that evaluation, Tonya had a “significant” healed fissure in her buttocks that could have been caused by a large bowel movement or some other trauma. Similarly, some of the tissue associated with Bethany's hymen was missing.
On 30 December 2010, a warrant for arrest charging Defendant with first degree statutory rape was issued. On 7 February 2011, the Burke County grand jury returned a bill of indictment charging Defendant with two counts of first degree statutory sexual offense. Prior to trial, the prosecutor extended a negotiated plea offer to Defendant under which, in return for Defendant's pleas of guilty to the offenses charged in the indictment, the State would agree that the charges that had been lodged against Defendant would be consolidated for judgment and that the sentence imposed upon Defendant would be selected from the presumptive range. Defendant failed to accept the proffered plea offer before it expired on 15 March 2013.
The charges against Defendant came on for trial before the trial court and a jury at the 18 March 2013 criminal session of the Burke County Superior Court. On that date, the prosecutor offered, in return for Defendant's plea of guilty to both offenses charged in the indictment, to agree that Defendant's convictions would be consolidated for judgment and that Defendant would be sentenced at the top of the presumptive range. At the time that this proposed negotiated plea was discussed on the record, the trial court informed Defendant that, assuming that he was sentenced as a Level II offender, the bottom of the presumptive range would involve a 221 to 275 month term of imprisonment and the top of the presumptive range would involve a 276 to 341 month term of imprisonment. After discussing the proposed plea with his trial counsel, Defendant rejected the State's offer and elected to exercise his right to trial by jury instead.
As the parties engaged in the jury selection process, the trial court informed them that it had reviewed the indictment in light of the relevant statutory provisions and determined that Defendant had been charged with violating N.C. Gen.Stat. § 14–27.4A(a) rather than N.C. Gen.Stat. § 14–27.4(a)(1) and that, if convicted, Defendant faced a mandatory minimum term of 300 months imprisonment. In response, Defendant's trial counsel indicated that he had understood that Defendant had been charged with violating N.C. Gen.Stat. § 14–27.4(a)(1) rather than N.C. Gen.Stat. § 14–27.4A(a). At that point, the prosecutor offered to allow Defendant to enter pleas of guilty to the lesser-included offenses. Although the trial court reiterated its belief that the charges alleged in the indictment returned against Defendant rested upon alleged violations of N.C. Gen.Stat. § 14–27.4A and that a conviction would require the imposition of a mandatory minimum sentence of 300 months imprisonment, Defendant rejected the State's renewed plea offer.
At the conclusion of the State's case, the trial court dismissed the first degree statutory sexual offense charge relating to the accusations involving Bethany for insufficiency of the evidence. During the jury instruction conference, the trial court informed counsel for the parties that the jury would be allowed to consider the issue of whether Defendant had committed the offense specified in N.C. Gen.Stat. § 14–27.4A(a) stemming from the accusations involving Tonya given that the language of the indictment alleged that Defendant had committed the offense defined in that statutory provision. On 21 March 2013, the jury returned a verdict finding Defendant guilty of first degree statutory sexual offense stemming from the accusations involving Tonya. At the conclusion of the ensuing sentencing hearing, the trial court entered a judgment sentencing Defendant to a term of 300 to 369 months imprisonment. Defendant noted an appeal to this Court from the trial court's judgment.
In his sole challenge to the trial court's judgment, Defendant contends that the indictment that had been returned against him was fatally defective, a fact that deprived the trial court of jurisdiction over this case. More specifically, Defendant contends that the language in which the indictment was couched, when coupled with the allegations delineating the statute that Defendant was accused of having violated, resulted in a fundamental ambiguity in the indictment in question sufficient to render it fatally defective. We do not find Defendant's contention persuasive.
The indictment returned against Defendant alleged that:
on or about the date of offense shown above [Fall 2010] and in the county indicated above [Burke] the defendant named above [Randal Eugene Powell] unlawfully, willfully, and feloniously did engage in a sexual offense with [Tonya], a child under the age of 13 years. At the time of the offense the defendant was 26 years of age, and over the age of 18.
The indictment specified that Defendant was charged with having committed the offense set out in N.C. Gen.Stat. § 14–27.4A. On the other hand, the indictment alleged in both the caption and in the headings placed before each count set out in that charging instrument that Defendant was being charged with “FIRST DEGREE SEX OFFENSE.”
“A valid bill of indictment is essential to the jurisdiction of the Superior Court to try an accused for a felony and have the jury determine his guilt or innocence, ‘and to give authority to the court to render a valid judgment.’ “ State v. Moses,154 N.C.App. 332, 334, 572 S.E.2d 223, 226 (2002) (quoting State v. Ray,274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968) ). As a general proposition, an “indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.” State v. Coker,312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984). “An indictment charging a statutory offense must allege all of the essential elements of the offense.” State v. Snyder,343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996) ; see alsoN.C. Gen.Stat. § 15A–924(a)(5) (). For that reason, an “[a]n indictment is sufficient in form for all intents and purposes if it expresses the charge in a plain, intelligible and explicit manner.” Coker,312 N.C. at 435, 323 S.E.2d at 346. A challenge to the validity of an indictment is evaluated on appeal utilizing a de novostandard of review. State v. Marshall,188 N.C.App. 748, 656 S.E.2d 709, 715,disc. review denied,362 N.C. 368, 661 S.E.2d 890 (2008).3
According to N.C. Gen.Stat. § 14–27.4A(a), which is entitled “Sexual offense with a child; adult offender,” “[a] person is guilty of sexual offense with a child if the person is at least 18 years of age and engages in a sexual act...
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