State v. Rankin

• Citation: 257 N.C.App. 354,809 S.E.2d 358
• Decision Date: 02 January 2018
• Docket Number: No. COA17-396,COA17-396
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Angela Marie RANKIN

257 N.C.App. 354

809 S.E.2d 358

STATE of North Carolina

v.Angela Marie RANKIN

No. COA17-396

Court of Appeals of North Carolina.

Filed: January 2, 2018

Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy Bircher, for the State.

Sarah Holladay, for defendant-appellant.

DAVIS, Judge.

In this appeal, we must determine whether the defendant’s indictment for felony littering of hazardous waste was facially valid. Because we conclude that her indictment failed to contain an essential element of the crime for which she was charged, we vacate her conviction.

Factual and Procedural Background

The State presented evidence tending to establish the following facts: On 27 April 2014, Angela Marie Rankin ("Defendant") was searching for scrap metal to sell. She noticed a metal tank containing fuel oil near a residential driveway on North Elam Avenue in Greensboro, North Carolina. Upon attempting to move the tank, Defendant realized some amount of "home heating fuel" was contained inside of it. She drained the contents of the tank onto the ground so that the tank "wouldn’t be as heavy."

The metal tank was reported stolen to the City of Greensboro Police Department. The Division of Public Health of the Guilford County Department of Health and Human Services also received a report of "a fuel release that impacted a waterway and soil and roadway inside the Guilford County limits." Upon investigation, it was discovered that the heating oil from the metal tank was the cause of the contamination in the area, and the oil was deemed "a hazardous substance for disposal...."

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 Guilford County Superior Court before the Honorable Michael D. Duncan. Defendant moved to dismiss all charges at the close of the evidence, and the trial court dismissed the conspiracy charge.

On 6 July 2016, the jury found Defendant guilty of felony littering of hazardous waste and not guilty of misdemeanor larceny. On 7 July 2016, the trial court sentenced Defendant to 5 to 15 months imprisonment but suspended the sentence and placed her on supervised probation for 18 months. Defendant filed a timely notice of appeal.

Analysis

I. Appellate Jurisdiction

As an initial matter, we must determine whether we possess jurisdiction over this appeal. Defendant’s notice of appeal did not explicitly state that she was appealing the trial court’s judgment to this Court as required by Rule 4(b) of the North Carolina Rules of Appellate Procedure.

Defendant has filed a petition for a writ of certiorari in the event we find her notice of appeal was insufficient to confer jurisdiction upon this Court based on her failure to expressly state that her appeal was to this Court as required by Rule 4(b).

Because this Court is the only court possessing jurisdiction to hear her appeal, it can be fairly inferred that Defendant intended to appeal to this Court. See State v. Sitosky , 238 N.C. App. 558, 560, 767 S.E.2d 623, 624-25 (2014), disc. review denied , 368 N.C. 237, 768 S.E.2d 847 (2015) (holding that appellate jurisdiction existed over defendant’s appeal despite her failure to designate court to which appeal was being taken in notice of appeal). Moreover, the State has not suggested that it was misled due to this deficiency in her notice of appeal.

Thus, Defendant’s failure to designate this Court in her notice of appeal does not warrant dismissal of this appeal. See State v. Ragland , 226 N.C. App. 547, 553, 739 S.E.2d 616, 620 (denying defendant’s petition for certiorari where "defendant’s failure to serve the notice of appeal and his mistake in failing to name this Court in his notice of appeal [did] not warrant dismissal"), disc. review denied , 367 N.C. 220, 747 S.E.2d 548 (2013). Accordingly, we deny Defendant’s petition for writ of certiorari as moot and proceed to consider the merits of her appeal.

II. Validity of Indictment

Our Supreme Court has made clear that "[a]n indictment must allege all the essential elements of the offense endeavored to be charged...." State v. Spivey , 368 N.C. 739, 742, 782 S.E.2d 872, 874 (2016) (citation and quotation marks omitted). However, an indictment is not required to reference exceptions to the offense. State v. Mather , 221 N.C. App. 593, 598, 728 S.E.2d 430, 434 (2012).

N.C. Gen. Stat. § 14-399(a) states, in pertinent part, as follows:

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

N.C. Gen. Stat. § 14-399(a) (2015) (emphasis added).

Defendant’s indictment alleged, in relevant part, the following:

The jurors for the State upon their oath present that on ... the date of offense shown and in the county named above the defendant named above 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 State does not dispute the fact that the indictment failed to allege that Defendant had not discarded litter on property "designated by the State or political subdivision thereof for the disposal of garbage and refuse[ ] and ... [was] authorized to use the property for this purpose" as set out in N.C. Gen. Stat. § 14-399(a)(1).¹ Thus, the sole issue in this appeal is whether subsection (a)(1) is an essential element under § 14-399(a) or, alternatively, it is merely an exception.

In State v. Connor , 142 N.C. 700, 55 S.E. 787 (1906), our Supreme Court explained the difference between an essential element to an offense (which must be alleged in the indictment) and an exception to the offense (which need not be alleged).

It is well established that when a statute creates a substantive criminal offense, the description of the same being complete and definite , and by subsequent clause, either in the same or some other section, or by another statute, a certain case or class of cases is withdrawn or excepted from its provisions, these excepted cases need not be negatived in the indictment, nor is proof required to be made in the first instance on the part of the prosecution.

In such circumstance, a defendant charged with the crime, who seeks protection by reason of the exception, has the burden of proving that he comes within the same.

....

The test here suggested, however, is not universally sufficient, and a careful examination of the principle will disclose that the rule and its application depends not so much on the placing of the qualifying words, or whether they are preceded by the terms, "provided" or "except"; but rather on the nature, meaning and purpose of the words themselves.

And if these words, though in the form of a proviso or an exception, are in fact, and by correct interpretation, but a part of the definition and description of the offense, they must be negatived in the bill of indictment.

....

We find in the acts of our Legislature two kinds of provisos—the one in the nature of an exception, which withdraws the case provided for from the operation of the act, the other adding a qualification, whereby a case is brought within that operation. Where the proviso is of the first kind it is not necessary in an indictment, or other charge, founded upon the act, to negative the proviso; but if the case is within the proviso it is left to the defendant to show that fact by way of defense. But in a proviso of the latter description the indictment must bring the case within the proviso. For, in reality, that which is provided for, in what is called a proviso to the act, is part of the enactment itself.

Id. at 701-03, 55 S.E. at 788-89 (internal citations and quotation marks omitted).

Over the past century since Connor was decided, our Supreme Court has consistently held that an indictment must include all the essential elements of the offense charged against the defendant. See, e.g. , State v. Brice , ––– N.C. ––––, ––––, 806 S.E.2d 32, 36 (2017) ) ("To be sufficient under our Constitution, an indictment must allege lucidly and accurately all the essential elements of the offense endeavored to be charged." (citation and quotation marks omitted)); State v. Murrell , ––– N.C. ––––, ––––, 804 S.E.2d 504, 508 (2017) ("In order to satisfy the relevant statutory requirements, including the provision of adequate notice, an indictment must allege lucidly and accurately all the essential elements of the offense endeavored to be charged." (citation and quotation marks omitted)); State v. Williams , 318 N.C. 624, 631, 350 S.E.2d 353, 357 (1986) ("An indictment that does not accurately and clearly allege all of the elements of the offense is inadequate to support a conviction."); State v. McBane , 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969) ("The warrant or indictment must charge all the essential elements of the alleged criminal offense. Nothing in G.S. 15-153 or in G.S. 15-155...