State v. Whittle
| Decision Date | 07 March 1995 |
| Docket Number | No. 9427SC509,9427SC509 |
| Citation | 454 S.E.2d 688,118 N.C.App. 130 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, v. Barbara WHITTLE. |
Attorney General Michael F. Easley by Asst. Atty. Gen. Charles H. Hobgood, for the State.
Stephen T. Gheen, Gastonia, for defendant-appellant.
Barbara Whittle (defendant) appeals from a judgment imposing a suspended prison sentence after a jury returned verdicts of guilty to one felony charge, malfeasance of a corporation agent, in violation of N.C.Gen.Stat. § 14-254, and two misdemeanor counts, both for violations of the North Carolina Medical Care Commission Rules, under N.C.Gen.Stat. § 131E-109(d).
On 5 August 1991 the Gaston County Grand Jury returned a presentment requesting that "the District Attorney investigate" the matters alleged in the presentment and "if appropriate, submit a Bill of Indictment to the Grand Jury dealing with the subject matter of this Presentment." The allegations of the presentment were that the defendant had violated certain rules adopted by the North Carolina Medical Care Commission, in that she had failed "to cause the implementation of nursing procedures for the daily charting of ... the development of decubiti on Horace O. Keller" and that she had failed "to cause the implementation of nursing procedures for the special skin care and decubiti care related to Horace O. Keller." On 2 March 1992 the grand jury indicted the defendant for the same rule violations alleged in the presentment, alleging that the defendant acted "unlawfully and willfully." These alleged offenses constitute misdemeanors under N.C.Gen.Stat. § 131E-109(d). Additionally, on that same date, the grand jury indicted the defendant for making "false entries in the books, reports, and statements" of the Royal Crest Health Care Center, Inc. (Royal Crest), alleging that the defendant acted "unlawfully, willfully, and feloniously." This alleged offense constitutes a felony under N.C.Gen.Stat. § 14-254.
On 8 January 1993 the defendant moved to dismiss the misdemeanor charges "on the ground that the Statute of Limitations ran before the Grand Jury returned the Indictment." This motion was denied by the trial court in a written order. In that order the trial court concluded that because the misdemeanor crimes charged "were presented by the Grand Jury within two years of the crimes" the Statute of Limitations did not bar their prosecution, even though the indictment was returned more than two years after the commission of the crimes.
The evidence offered at the trial shows that between July 1989 and June 1990 the defendant was the Director of Nursing at Royal Crest, a long term care facility licensed under the North Carolina Division of Facility Services. The charges against the defendant arose from an investigation of the care received by Horace Keller (Keller) a patient at Royal Crest between 31 August 1989 and 21 September 1989. At some point between Keller's release from the hospital to Royal Crest and ultimate discharge from Royal Crest, Keller developed three decubitus ulcers (bedsores), one on each heel of his feet and one on his buttocks. The charges against the defendant allege that she falsified Keller's admission report by showing these bedsores existed at a Stage IV level (a high level, requiring surgery) at the time he was admitted to Royal Crest and that she failed to implement procedures for the daily charting of unusual conditions, like bedsores, and failed to implement procedures for special skin care and care of bedsores. The State presented evidence that these bedsores did not exist at the time Keller was admitted to Royal Crest, but formed thereafter, and the defendant changed Keller's admission records to reflect that the sores existed at the time he was admitted to Royal Crest.
At the conclusion of the evidence, the defendant requested the following special jury instruction:
In each of these three cases against the defendant, she is alleged to have acted "willfully." Acting "willfully" means acting "voluntarily, intentionally, purposefully and deliberately, indicating a purpose to do it without authority, and in violation of law." The State is required to prove beyond a reasonable doubt that Barbara Whittle acted voluntarily, intentionally, purposefully and deliberately, indicating a purpose to act without authority and in violation of law.
The trial court denied the defendant's request and gave the following jury instruction on the element of "willful":
The word "willful" means intentionally. An act is done willfully when it is done intentionally. I instruct you that intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.
[Emphasis added.] Furthermore, the court provided the following jury instructions with regard to each offense:
Felony--Malfeasance of a corporate agent.
[T]he State must prove ... beyond a reasonable doubt: ... Fourth, that the entry was false. Fifth, that the defendant knew that the entry was false; and sixth, that the defendant willfully made the false entry regarding Horace Keller with the intent to deceive another person or corporation.
Misdemeanor--Charting.
[T]he State must prove ... beyond a reasonable doubt: ... and third that the defendant, Barbara Whittle, as director of nursing did willfully fail to cause the implementation of nursing procedures and policies for the daily charting of an unusual occurrence or acute episode relating to the development of decubiti on Horace O. Keller.
Misdemeanor--Special Care.
[T]he State must prove ... beyond a reasonable doubt: ... and third, that the defendant, Barbara Whittle, willfully failed to cause the implementation of nursing procedures for special skin care and decubiti care for Horace O. Keller....
_____
The issues presented are whether (I) an indictment for a misdemeanor committed more than two years prior to the indictment is outside the two year statute of limitations period, when the grand jury has, within two years of the crime, returned a presentment; and (II) the trial court committed reversible error in its instruction that "willful" means "intentional."
The defendant argues that the misdemeanor indictments in this case must be dismissed because they were returned outside the two year statute of limitations. The State argues that although the indictment was returned more than two years after the commission of the crimes charged, the indictment must not be dismissed because the grand jury had, within two years of the crimes, returned a presentment. We agree with the State.
There is no dispute that North Carolina has adopted a two year statute of limitations for misdemeanors. Our legislature has specifically provided that:
[A]ll misdemeanors except malicious misdemeanors, shall be presented or found by the grand jury within two years after the commission of the same, and not afterwards....
N.C.G.S. § 15-1 (1983) (emphasis added). Our courts have consistently construed this language, which has not been altered since its adoption in 1826, to mean that either an indictment or a presentment issued by a grand jury within two years of the crime alleged "arrests the statute of limitations." E.g., State v. Underwood, 244 N.C. 68, 70, 92 S.E.2d 461, 463 (1956). A presentment is "a written accusation by a grand jury, made on its own motion and filed with a superior court, charging a person, or two or more persons jointly, with the commission of one or more criminal offenses." N.C.G.S. § 15A-641(c) (1988). Upon the return of a presentment "the district attorney is obligated to investigate the factual background" and submit bills of indictment dealing with the subject matter only "when it is appropriate to do so." Id.
The defendant argues that when the legislature, in 1973, enacted the new Criminal Procedure Act and specifically N.C.Gen.Stat. § 15A-641(c), it necessarily changed the law that a presentment arrests the statute of limitations. In support of this argument, the defendant points to the language of Section 641(c) which states that a presentment no longer "institute[s] criminal proceedings."
To read N.C.Gen.Stat. § 15A-641 as the defendant suggests would require that we construe N.C.Gen.Stat. § 15A-641 as repealing N.C.Gen.Stat. § 15-1. That result is not required in this case. "A statute is not deemed to be repealed merely by the enactment of another statute on the same subject." Person v. Garrett, Comm'r of Motor Vehicles, 280 N.C. 163, 165, 184 S.E.2d 873, 874 (1971). Indeed, we are required to "give effect to statutes covering the same subject matter where they are not absolutely irreconcilable and when no purpose of repeal is clearly indicated." Id. at 165-66, 184 S.E.2d at 874.
In this case, there is no stated purpose in N.C.Gen.Stat. § 15A-641 that indicates the legislature intended to repeal N.C.Gen.Stat. § 15-1. Furthermore, N.C.Gen.Stat. § 15A-641 appears to be an effort by the legislature to codify the common law that permitted the use of presentments by grand juries but prohibited the arrest and trial of defendants on a presentment. E.g., State v. Thomas, 236 N.C. 454, 458, 73 S.E.2d 283, 286 (1952); see N.C.G.S. § 15A-641 official commentary (1988). Thus, Section 15-1 has not been repealed and remains a part of the law of this state and supports the order of the trial court denying the defendant's motion to dismiss.
Defendant further argues that allowing a presentment by a grand jury to "arrest the statute of limitations" may possibly result in prejudicial and unreasonable delay in prosecutions, in that the district attorney could wait years before seeking an indictment on the crimes alleged in the presentment. It is unnecessary for us to address this argument...
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