The defendant in State v. Phillips, No. COA25-275 (N.C. Ct. App. Jan. 7, 2026), argued the trial court erred by denying his pretrial motion to dismiss based on a defective indictment. The Court of Appeals rejected the argument, finding the defendant failed to demonstrate he was prejudiced by the alleged indictment error. Until recently, when indictment defects were jurisdictional, such challenges did not require a showing of prejudice. This post considers the fate of that rule.
The Ancien Régime
Once upon a time, indictments were jurisdictional. Jurisdiction is a prerequisite for judicial action; it cannot be waived by neglect or conferred by consent. In felony cases, the trial court’s jurisdiction depended upon a facially valid indictment – drafted by a prosecutor, endorsed by a grand jury – meaning one that complied with myriad technical rules derived largely from the common law. In particular, an indictment had to allege each element of the offense charged. Some of these rules were codified by statute, but it was the common law that gave them jurisdictional significance.
Further, the facial validity of an indictment could be challenged at any time, even for the first time on appeal. Though appellate jurisdiction is derivative, a court always has jurisdiction to determine its own jurisdiction. Under the old rules, the role of the trial court and the appellate court was essentially the same: if the indictment was facially invalid, any proceedings thereon were a nullity. The charge was dismissed, and — since there was no jeopardy without jurisdiction — the State could proceed against the defendant for the same offense upon a new and sufficient indictment.
The Revolution
State v. Singleton, 386 N.C. 183 (2024), changed all that. In the first place, Singleton adopted a different conception of jurisdiction, one derived not from any linguistic refinement in the charging instrument, but from the institutional role of the courts. Jurisdiction, it said, now means the court’s statutory or constitutional power to adjudicate the case. Singleton, 386 N.C. at 197.
To be sure, an institutional conception of jurisdiction is not wholly new to North Carolina criminal law. For a long time, it existed in uneasy tension with the simultaneous notion of jurisdiction as depending on valid indictment. Singleton eliminated the tension by obliterating the older doctrine. Methodologically, it did so by discovering that the legislature had abrogated the so-called “common law jurisdictional indictment rule,” with the adoption of the Criminal Procedure Act. Singleton, 386 N.C. at 194.
In the process of redefining jurisdiction, Singleton also declared that an indictment is not facially invalid for failure to allege all the elements of the offense charged. Singleton, 386 N.C. at 195. An indictment is not jurisdictionally defective, it said, unless it “wholly fails to allege a crime against the laws or people of this state.” Id. at 184-85. As examples, Singleton offered an indictment that charged a person with wearing pink on Wednesday (which is not currently a criminal offense) or with committing a crime in another state (which could not be prosecuted in North Carolina even under older notions of territorial jurisdiction). Id. at 205-06.
Other indictment defects Singleton deemed “non-jurisdictional.” Singleton, 186 N.C. at 210. These include constitutional issues, such as failure to provide adequate notice of the offense charged, and statutory violations, such as failure to include a statement alleging facts to support every element of the offense charged. Id. (Curiously, given the variety of common law pleading defects, Singleton failed to recognize any other source of indictment rules than constitutions and statutes.) For non-jurisdictional defects, a defendant would have to show “not only that such an error occurred, but also that such error was prejudicial.” Id. (Actually, the rule is a bit more complicated because constitutional errors are presumed to be prejudicial, but the point still holds.)
A Showing of Prejudice
At one point, Singleton says indictment challenges can be waived. By statute, a defendant is entitled to dismissal if his indictment fails to allege facts supporting every element of the offense charged; no showing of prejudice is required. G.S. 15A-924(e); cf. G.S. 15A-954(a)(10). But such a challenge must be raised by pretrial motion to dismiss, generally before arraignment. G.S. 15A-952(c). “If the defendant fails to timely file such motion,” Singleton says, “it is waived.” Singleton, 386 N.C. at 204.
At another point, Singleton suggests indictment challenges cannot be waived. Under Appellate Rule 10, whether the trial court had jurisdiction and whether a criminal charge is sufficient in law are issues that are deemed preserved even without objection taken below. N.C. R. App. P. 10(a)(1). This rule, Singleton says, thus distinguishes between jurisdiction and non-jurisdictional pleading issues, and both are “automatically preserv[ed] for appellate review.” Singleton, 386 N.C. at 208.
Needless to say, the same indictment error cannot be both waived indefinitely for failure to file a timely motion and deemed preserved for appellate review by operation of law. As for squaring the court-created rule of automatic preservation with the statutory requirement for timely objection, Singleton provided little to no guidance. (My colleague Danny Spiegel wondered about this in a prior post.) One possible explanation is that a defendant has discrete windows for challenging the indictment.
But creating separate windows for indictment challenges means there is a meaningful difference between an appellate court’s reviewing a trial court’s pretrial determination of the sufficiency of an indictment and its determining the sufficiency of an indictment in the first instance. A defendant challenging a trial court’s pretrial ruling would seem to have an easier burden to show prejudice. Indeed, had the trial court granted a motion to dismiss, the outcome of that proceeding obviously would have been different. By contrast, a defendant challenging an indictment for the first time on appeal would have to show that, but for the error, the defendant would not have been convicted. As Singelton recognized, “the longer a defendant waits to raise issues related to deficient criminal pleadings, the more difficult it would be to establish prejudice.” Singleton, 386 N.C. at 211.
State v. Phillips
The defendant in State v. Phillips, COA25-275 (N.C. Ct. App. Jan. 7, 2026), was charged with felony stalking. A defendant is guilty of stalking if he, among other things, either (1) willfully harasses another person on more than one occasion without legal purpose, or (2) willfully engages in a course of conduct directed at a specific person without legal purpose. G.S. 14-277.3A(c). The indictment in Phillips alleged that the defendant, without legal purpose, harassed the victims and/or did engage in a course of conduct directed at the victims. The trial court denied the defendant’s pretrial motion challenging the indictment. The defendant was convicted by a jury and appealed.
Before the Court of Appeals, the defendant argued the trial court erred by denying his motion to dismiss the indictment. In particular, he contended the indictment was insufficient because it failed to specify the conduct constituting the alleged harassment or prohibited course of conduct. The Court of Appeals rejected the argument. It cited Singleton for the proposition that a defendant must demonstrate not only that indictment error occurred, but also that such error was prejudicial. Here, the Court of Appeals said, the defendant “failed to argue, much less demonstrate, that he was prejudiced by the alleged error in the indictment.” Slip Op. p. 10. This made it unnecessary for the Court of Appeals to decide whether the indictment was defective. The defendant’s argument was dismissed.
Conclusion
In Phillips, the Court of Appeals declared that it would review “de novo a trial court’s decision to deny a motion to dismiss a charge based on a fatal defect in the indictment,” citing State v. Stewart, 386 N.C. 237 (2024). Slip Op. p. 8. The authority for that proposition is somewhat questionable. The defendant in Stewart raised no objection to his indictment at trial. Addressing an indictment challenge raised for the first time on appeal, the Supreme Court in Stewart said, “[t]his Court reviews the sufficiency of an indictment de novo.” State v. Stewart, 386 N.C. 237, 240 (2024).
To be sure, before Singleton, those two issues were essentially the same. No deference was due to the trial court’s determination, and the defendant had no burden to show prejudice in either case. After Singleton, however, a defendant seeking relief based on an indictment defect must show not only error but also prejudice. And prejudice arising from an unchallenged indictment defect is not easy to establish. Given this additional burden, a defendant – given the right circumstances – will argue not that the indictment was defective, but that the trial court erred by denying his motion to dismiss the indictment based on the defect. The prejudice in that case might be a bit more apparent.
Still, as Phillips illustrates, a defendant must attempt to make some showing of prejudice on appeal. Gone are the pre-Singleton days when it was enough to show only that an indictment failed to contain a complete recitation of the elements of the offense charged. Given appropriate facts, an appellate court now must ascertain whether the error made any difference. Regardless of whether the defendant is alleging error in the indictment, or in the trial court’s pretrial ruling thereon, the defendant in a post-Singleton world must show the likelihood of a different result absent the error.
