Ordinarily, a pleading that fails to accurately allege every element of the offense is defective and is treated as a jurisdictional nullity. See, e.g., G.S. 15A-924(a)(5) (“as a prerequisite to its validity, an indictment must allege every essential element of the criminal offense it purports to charge”); State v. Harris, 219 N.C. App. 590 (2012) (indictment is invalid and confers no jurisdiction on the trial court if it “fails to state some essential and necessary element of the offense”).
The limited exception to this rule is the somewhat relaxed pleading standard for a citation, which may still be sufficient even if it fails to state every element, as long as it reasonably identifies the crime charged. Shea Denning and Jeff Welty covered that issue in a series of posts available here, here, and here.
Several recent cases from the Court of Appeals have offered a good reminder about another important corollary to the general rule for pleadings: although an indictment must “allege every element” in order to be valid, the state has quite a bit of flexibility in how that standard can be met.
The Rule is the Rule is the Rule…Right?
The case reporters are replete with opinions reversing convictions for an indictment’s failure to allege a necessary element of the offense, depriving the court of jurisdiction. See, e.g., State v. Forte, __ N.C. App. __, 817 S.E.2d 764 (July 3, 2018) (habitual felon indictment was fatally defective where it failed to accurately allege the date of offense for which defendant was previously convicted); State v. Lofton, __ N.C. App. __, 816 S.E.2d 207 (May 1, 2018) (drug indictment was fatally defective where it purportedly charged defendant with manufacturing a controlled substance, but failed to allege intent to distribute as to one of the conjunctively-charged grounds); State v. Rankin, __ N.C. App. __, 809 S.E.2d 358 (Jan. 2, 2018) (felony littering indictment was fatally defective for failing to allege that the waste was not discarded on property designated as a disposal site by the state or local government ).
But this fairly strict rule is balanced against the principle that indictments should not be subjected to a “hyper-technical scrutiny with respect to form.” Harris, 219 N.C. App. at 592. Shea analyzed an example of this principle in her post about State v. Brawley, 306 N.C. 626 (2018), where the state Supreme Court held that a larceny indictment alleging Belk’s Department store was “a legal entity capable of owning property” was not fatally defective for failing to precisely describe which type of legal entity it was – a corporation, partnership, or something else? Instead, the Supreme Court adopted the dissent’s view from the Court of Appeals, which held that simply calling it a legal entity capable of owning property was “sufficient to meet the requirements” for an indictment and “apprise the defendant of the conduct which is the subject of the accusation.” Id.
Defect vs. Hyper-Technical Scrutiny
So where, exactly, is the line between an outright defect or omission, such as the missing element in Rankin, and what might be more accurately described as “an unfortunate but non-fatal oversight in drafting,” such as the vague (but still sufficient) description in Brawley?
I’m not suggesting that there is anything approaching an “exception” for missing elements in an indictment, but several recent cases indicate that the state’s ability to get over the hurdle of providing adequate notice to the defendant can be met in some surprising and creative ways. Take a look at the following examples, all of which were decided within the last month.
- “You know what I meant…”
Can an “assault” indictment be valid even if the state fails to allege that the defendant “assaulted” the victim? Believe it or not – yes. See State v. Hill, __ N.C. App. __ (Oct. 16, 2018).
In Hill, the state ostensibly charged the defendant with Assault with a Deadly Weapon Inflicting Serious Injury, but the charging language inadvertently left out the word “assault,” and instead only alleged that the defendant “unlawfully, willfully and feloniously did E.D. with a screwdriver, a deadly weapon, inflicting serious injury….” The Court of Appeals held that it was “not fatal if an indictment is not perfect with regard to form or grammar,” as long as the meaning is clearly apparent and a person of common understanding would know what was intended. That standard was met in this case, even though the indictment failed to state that the defendant “did assault E.D.,” because: (a) it sufficiently charged an assault by “alleging that Defendant willfully injured one of the victims with a screwdriver;” and (b) the indictment also captioned the offense as “AWDW Serious Injury” and referenced the correct statute. Therefore, “viewing the indictment as a whole,” it substantially followed the language of the statute and the essential elements, and “apprised the Defendant of the crime in question.”
- “Use your words…”
If the crime of embezzlement is committed by either “fraudulently” or “knowingly and willfully” misapplying or converting money or property to the defendant’s own use, would it be a fatal defect if the indictment leaves out both of the words “fraudulently” and “knowingly,” and only alleges that the defendant committed the act “willfully?” You might think so, but no. See State v. Booker, __ N.C. App. __ (Nov. 6, 2018).
In Booker, the indictment only stated that the defendant “unlawfully, willfully and feloniously” embezzled several thousand dollars from her employer. The defense argued that this failed to allege she did the act either fraudulently or knowingly, so the indictment was defective. The Court of Appeals disagreed, and explained that all the necessary words are in there – you just have to know where to look. First, if you look up “embezzlement” in the dictionary, it’s defined as appropriating money “fraudulently to one’s own use,” and therefore “the concept of fraudulent intent is already contained within the ordinary meaning of the term ‘embezzle.’” Second, per case law, if an act is done “willfully” that automatically “implies that the act is done knowingly,” so the indictment in this case “can fairly be read to allege that she ‘knowingly and willfully’ embezzled from her employer.”
- “If I’ve told you once, I’ve told you a hundred times…”
Can the state “borrow” or “combine” language from one count in the indictment to supplement the charging information in another count? Again, a recent case indicates that yes, the state can. See State v. Nickens, __ N.C. App. __ (Nov. 6, 2018).
In Nickens, the defendant was charged with Assault Inflicting Physical Injury on a Law Enforcement Officer, RDO, and Trespassing. On appeal, the defendant argued that the individual counts in the indictment were defective because they failed to specifically identify the officer and allege the public office he held. The Court of Appeals rejected that argument. The officer was named in Count I by first initials and last name, and described as “a state law enforcement officer employed by the North Carolina Division of Motor Vehicles,” and he was similarly named in Count II, but he was described here as “a public officer holding the office of North Carolina Law Enforcement Agent.” The Court of Appeals held that “both counts, taken together, provide Defendant with sufficient information to identify and locate the officer,” and further held that the combined language of the two counts was “facially sufficient” to describe “the specificity of the office” held by the officer. Id. (emphasis added).
The defendant in Nickens also argued that the indictment was defective for failing to clearly allege the duty the officer was trying to carry out when the defendant resisted or obstructed him. The Court of Appeals rejected that argument as well, pointing out that Count II alleged the defendant’s particular conduct (e.g., “refusing commands to leave the premises” and “refusing verbal commands during the course of arrest for trespassing and assault”) and Count III alleged that the defendant was, in fact, trespassing at the time (“…did without authorization remain on the premises…after having been notified not to remain there by a person in charge…”). Therefore, “the charges” (note the plural “charges” here) sufficiently alleged the duty the officer was “attempting to discharge, namely: commanding Defendant to leave the premises and arresting or attempting to arrest her when she failed to comply.”
Where Does This Leave Us?
I don’t imagine this post will change very much about how prosecutors and defense attorneys do their jobs. Prosecutors already try to make sure their indictments are correct and complete before they go to grand jury. (Of course, the easiest way for prosecutors to avoid any self-inflicted wounds in their indictments is to use Jeff Welty’s sample indictment forms.) Nevertheless, mistakes will inevitably happen, and when they do I have no doubt that defense attorneys will challenge whatever slipped through the cracks.
As for how the trial or appellate court will rule on a given motion to dismiss alleging a fatal defect, there seems to be a gray area that falls somewhere in between “total failure to include a necessary element” and “hyper-technical scrutiny of a minor typo that had no impact on notice to the defendant.” The handful of cases summarized above are by no means an exhaustive list, so it should be interesting to watch how these cases develop over the coming years.