State v. Wilson
| Decision Date | 03 March 1998 |
| Docket Number | No. COA96-1469,COA96-1469 |
| Citation | 497 S.E.2d 416,128 N.C.App. 688 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Hulon Leon WILSON, Jr. |
Appeal by defendant Hulon Leon Wilson, Jr. from judgment entered 22 May 1996 by Judge Howard E. Manning, Jr., in Durham County Superior Court. Heard in the Court of Appeals 28 August 1997.
Michael F. Easley, Attorney General by Charles J. Murray, Special Deputy Attorney General, for the State.
Brian Michael Aus, Durham, for defendant Hulon Leon Wilson, Jr.
"[W]hen a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense [only] when the greater offense which is charged in the bill of indictment contains all of the essential elements of the lesser." 1 Felonious restraint, a lesser included offense of kidnaping, requires proof that the victim was transported in a motor vehicle or other conveyance. 2 Because the kidnaping indictment in the subject case fails to charge that the defendant transported the victim by motor vehicle or other conveyance, we must vacate his conviction on the lesser included offense of felonious restraint. However, we remand to the trial court for imposition of judgment of the lesser included offense of false imprisonment which does not require proof of transportation by motor vehicle or other conveyance.
As a result of an incident which occurred on November 14, 1995, defendant was indicted and tried on May 21, 1996 in the Superior Court of Durham County for first degree kidnaping and assault. At the conclusion of the trial, defendant was acquitted of the assault charge but convicted of felonious restraint, which was submitted to the jury as a lesser included offense under the kidnaping indictment. The trial court sentenced defendant to an active sentence of twenty-five (25) to thirty (30) months imprisonment.
Before we discuss the merits of our decision today, certain litigation facts in this case constrain us to address the preliminary question of whether this issue was properly preserved for our appellate review.
According to the record, defendant in this case did not object to the trial court's submission of felonious restraint to the jury. In fact, during the charge conference, defense counsel asked the court to consider submitting felonious restraint as well as second degree kidnaping and false imprisonment as possible verdicts. Ordinarily, under the invited error doctrine, such action and inaction by defendant would prevent him from now seeking appellate review of the contested issues. 3 However, defendant argues that, inasmuch as the indictment in this case is subject to a motion in arrest of judgment and he did not formally waive his right to an indictment, the issue regarding the trial court's submission of the felonious restraint charge to the jury is preserved as a matter of law. We agree.
Where there is a fatal defect in the indictment, verdict or judgment which appears on the face of the record, a judgment which is entered notwithstanding said defect is subject to a motion in arrest of judgment. 4 A defect in an indictment is considered fatal if it "wholly fails to charge some offense ... or fails to state some essential and necessary element of the offense of which the defendant is found guilty." 5 When such a defect is present, it is well established that a motion in arrest of judgment may be made at any time in any court having jurisdiction over the matter, even if raised for the first time on appeal. 6 As the indictment in the subject case is being challenged by defendant on the grounds that it is on its face, insufficient to support the offense of which defendant was convicted, we conclude that defendant's failure to object to the submission of the felonious restraint charge is not an impediment to this appeal since such a challenge of the indictment may be made for the first time on appeal.
Having concluded that defendant's failure to object is not fatal to his appeal, we now consider whether defendant, nonetheless, waived his right to challenge the sufficiency of the indictment under which he was convicted by requesting an instruction on felonious restraint. In addressing this issue, we refer to N.C.Gen.Stat. § 15A-642(c) which provides that:
Waiver of indictment must be in writing and signed by the defendant and his attorney. The waiver must be attached to or executed upon the bill of indictment.
We also find it instructive that our courts, in applying N.C.G.S. § 15A-642(c), have held that neither a tendering of a guilty plea by a defendant, 7 nor the tendering to the trial court of an unsigned waiver, 8 could be considered sufficient waivers of a defendant's right to a formal indictment. Guided by such precedent and the plain language of the statute itself, we conclude that defendant's request for an instruction on felonious restraint did not constitute a formal waiver of his right to be charged under a sufficient indictment. Accordingly, we now address the merits of defendant's argument that the indictment charging him with first degree kidnaping was insufficient to support defendant's conviction of felonious restraint.
North Carolina courts have long held that in making out an indictment or criminal summons, the state need only allege ultimate facts. 9 Evidentiary matters simply need not be alleged. 10 However, it is also well settled in this state that "when a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense [only] when the greater offense which is charged in the bill of indictment contains all of the essential elements of the lesser." 11 Thus, when the lesser charge has an essential element not alleged in the bill of indictment charging the greater offense, no conviction may be had on the lesser offense. 12
The above rule governs when determining the sufficiency of an indictment, unless the legislature has authorized the state to use short-form indictments for the crime in question. 13 Only when such authorization is given is the state exempt from the common law rule that it must allege every element of the lesser included charge in order to obtain a conviction pursuant to an indictment charging the greater offense. 14 As of yet, the legislature has not adopted a short form indictment for the crime of kidnaping. 15 Therefore, in determining the sufficiency of the indictment in the subject case, we are compelled to follow the general common law rule that the state must allege every element of a lesser included offense in order to obtain a conviction under an indictment charging the greater offense.
(emphasis added). The offense of kidnaping is defined in N.C.Gen.Stat. § 14-39 as follows:
(a) Any person who shall unlawfully confine, restrain, or remove any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnaping if such confinement, restraint or removal is for the purpose of:
(1) Holding such other person for a ransom or as a hostage or using such person as a shield; or
(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or
(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person; or
(4) Holding such other person in involuntary servitude in violation of G.S. § 14-43.2.
The lesser included offense of felonious restraint, of which defendant was convicted, is defined in N.C.Gen.Stat. § 14-43.3 as follows:
A person commits the offense of felonious restraint if he unlawfully restrains another person without that person's consent, or the consent of the person's parent or legal guardian if the person is less than 16 years old, and moves the person from the place of initial restraint by transporting him in motor vehicle or other conveyance. Violation of this section is a Class F felony. Felonious restraint is considered a lesser included offense of kidnaping.
(emphasis added).
The difference between the greater offense of kidnaping and the lesser included offense of felonious restraint is clear from the language of the cited criminal statutes. In addition to not requiring the specified purpose or intent outlined in the kidnaping statute, the offense of felonious restraint contains an element not contained in the crime of kidnaping--transportation by motor vehicle or other conveyance. In fact, it is this element which distinguishes felonious restraint from another lesser included offense of kidnaping, false imprisonment. False imprisonment like felonious restraint, contains all of the elements of kidnaping, except for the requirement that there be an intent to confine, restrain, or remove another person. 16 Unlike felonious restraint, however, the offense of false imprisonment does not include the element of transportation by motor vehicle or other conveyance.
Given the plain language of the felonious restraint statute and the distinction between the offenses of kidnaping, felonious restraint and false imprisonment, we conclude that, absent authorization by the legislature of a short-form indictment, transportation by motor vehicle or other conveyance is an essential element of the crime of felonious restraint that must be alleged by the State in a bill of indictment in order to properly indict a defendant for that crime. In our view, the State's decision to allege...
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