Prosecutors Beware: State v. Newborn Provides a Word of Caution for Felon In Possession Indictments

Author’s Note:  The opinion discussed below was reversed by the North Carolina Supreme Court in State v. Newborn, 330PA21, ___ N.C. ___ (June 16, 2023). The North Carolina Supreme Court’s opinion is discussed here

The first sentence of State v. Newborn, ___ N.C. App. ___, 2021-NCCOA-426 (Aug. 17, 2021) sums up the issue:  “When the charge of possession of a firearm by a felon is brought in an indictment containing other related offenses, the indictment for that charge is rendered fatally defective and invalid, thereby depriving a trial court of jurisdiction over it.”

Even after I read it that straightforward statement, I questioned my understanding. This rule struck me as inconsistent with recent caselaw holding that the violation of statutory pleading rules for prior convictions does not deprive the trial court of jurisdiction. See State v. Brice, 370 N.C. 244 (2017). But (ipso facto) that is the rule for felon in possession indictments, which prosecutors ignore at the case’s peril.

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Naming the Victim of a Sexual Assault

Suppose the State is prosecuting a defendant for the sexual assault of a young child. Though the child has been identified by name in the arrest warrant and investigative reports provided to the defendant, the State would prefer not to name the victim in the indictment. May it refer to the victim in that document as “Victim #1”?

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Not-Quite-Defective Indictments

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.

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Brawley, Belk’s, and Charging Crimes in Modern, Southern Style

Belk Department Stores are the Bloomingdales of North Carolina. If someone says they are going to Belk (or, more often, “Belk’s”), you know that they are heading into town to pick up some modern, southern style (or, more likely, something off the wedding registry). And if you hear that so-and-so stole something from your local Belk’s, you can generally picture the scene of crime, since, outside of the big cities, there is generally just one Belk’s in town. So when the court of appeals held last year that a Rowan County indictment alleging that the defendant stole shirts belonging to “Belk’s Department Stores, an entity capable of owning property,” was invalid because it failed to adequately identify the victim of the larceny, it may have left some people in Salisbury (where there is only one Belk’s) scratching their heads.

The state supreme court recently reversed that determination in a per curiam opinion that rejected this kind of technical pleading requirement for larceny of personal property.

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State v. Brice: Pleading Rules for Habitual Offenses Are Not Jurisdictional

The court of appeals last year vacated Sandra Brice’s conviction for habitual misdemeanor larceny for stealing five packs of steaks valued at $70 from a Food Lion in Hickory. The reason? The indictment alleged the steak theft and Brice’s four prior convictions for misdemeanor larceny in a single count. That violated a statutory rule requiring that prior convictions be alleged in a separate count, and, in the court of appeals’ view, deprived the superior court of jurisdiction to enter judgment against Brice for habitual misdemeanor larceny, a felony offense. Earlier this month, the North Carolina Supreme Court reversed the court of appeals and remanded the case for reinstatement of the trial court’s judgment. Read on to find out why.

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Ferguson and the Prosecutor’s Approach to the Grand Jury

Yesterday, the grand jury in St. Louis County, Missouri , declined to indict officer Darren Wilson in connection with the fatal shooting of Michael Brown. Some commentators have criticized the decision of the local prosecutor, Robert McCulloch, to present all the evidence to the grand jury, rather than only evidence that would support an indictment. I don’t think that’s a fair criticism, for reasons I explain below.

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When Charging Murder, Is the Offense Date the Date of the Attack, or the Date of the Victim’s Death?

Suppose that Dan shoots Victor on January 1, and that Victor dies from his wounds, but not until January 3. When a magistrate issues an arrest warrant, or the grand jury returns an indictment, should the date of offense be listed as January 1, the date of the attack? Or January 3, the date of … Read more

The Court of Appeals Finds Another Fatal Defect in a Sex Offender Indictment

A couple of months ago, I blogged about State v. Herman, __ N.C. App. __ (2012), a case in which the court of appeals found a fatal defect in an indictment charging the defendant with  being a sex offender unlawfully on a premises in violation of G.S. 14-208.18(a)(2). In a nutshell, the indictment in that … Read more

The Court of Appeals Finds Indictment Errors — We Offer an Updated Resource for Avoiding Them

The court of appeals issued a new batch of opinions today. They’re available in full here, and Jessie just sent summaries out to the listserv. (If you haven’t joined the listserv for case summaries, you can do so here.) The thing that jumped out at me about today’s cases was that the court found several … Read more

Sufficient or Insufficient?

Under G.S. 14-208.18, it is a crime for certain sex offenders “to knowingly be at” certain locations, including “[o]n the premises of any place intended primarily for the use, care, or supervision of minors.” The court of appeals recently decided State v. Harris, a case concerning an indictment for that offense. The court’s opinion makes some interesting points, so I’ll set out the indictment, and then administer a quiz.

The indictment alleged that the defendant

did unlawfully, willfully and feloniously on the premises of Winget Park Elementary School, located at . . . Charlotte, North Carolina. A place intended primarily for the use, care, or supervision of minors and defendant is a registered sex offender.

On appeal, the defendant identified several alleged defects in the indictment. So here’s the quiz: which of the following problems, if any, did the court of appeals view as requiring relief for the defendant?

a. The omission of “go” or “be” from the phrase “did unlawfully, willfully and feloniously on the premises

b. The failure to allege “knowingly,” which is the mens rea term used in G.S. 14-208.18

c. The lack of any antecedent for the phrase “[a] place intended primarily for the use, care, or supervision of minors”

d. The failure to specify that the defendant’s reportable conviction was for an offense in Article 7A of Chapter 14

e. None of the above, the court determined that the indictment was sufficient

The answer is after the break.

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