Within the Four Corners: Scouring Indictments for Missing Elements in State v. Jackson and State v. Coffey.

Two recent opinions from the Court of Appeals illustrate the remarkable controversy currently underway over the specificity required of indictments.  In State v. Coffey, No. COA22-883, 2024 WL 675881 (N.C. Ct. App. Feb. 20, 2024), our Court of Appeals ruled an indictment for felony obstruction of justice was facially defective for failure to allege an essential element of the offense: the purpose of hindering or impeding a judicial or official proceeding or investigation.  By contrast, in State v. Jackson, No. COA22-280, 2024 WL 925480 (N.C. Ct. App. Mar. 5, 2024), our Court of Appeals ruled an indictment for habitual misdemeanor assault was sufficient though it failed explicitly to allege an element: causing physical injury.  This post attempts to reconcile the divergent analytical approaches taken in Coffey and Jackson.

Basic Principles

The common law rule is that an indictment must allege all the essential elements of the offense charged.  State v. Oldroyd, 380 N.C. 613, 617, 869 S.E.2d 193, 197 (2022).  By statute, an indictment must contain a plain and concise factual statement in each count that asserts facts supporting every element of the offense.  N.C.G.S. § 15A-924(a)(5).  The extent to which this statute codifies the common law rule has been a matter of some debate.  As noted in a prior post, recent opinions have been more willing to uphold indictments where the elements can be inferred from the facts alleged.  In any event, the validity of an indictment is determined without reference to extrinsic evidence.  State v. White, 372 N.C. 248, 254, 827 S.E.2d 80, 84 (2019).  The determination is confined, in other words, to the four corners of the charging document and the controlling law.  See State v. Atlas, 283 N.C. 165, 172, 195 S.E.2d 496, 501 (1973).

Obstruction of justice is a common law offense.  If common law obstruction of justice is done with deceit and intent to deceive, it is a felony.  N.C.G.S. § 14-3(b).  Hence, the elements of felony obstruction of justice are: (1) the defendant unlawfully and willfully, (2) obstructed justice, (3) with the intent to deceive.  State v. Ditenhafer, 373 N.C. 116, 128, 834 S.E.2d 392, 400 (2019). The offense may take a variety of forms.  In re Kivett, 309 N.C. 635, 670, 309 S.E.2d 442, 462 (1983).  The Court of Appeals has rejected the argument that obstruction of justice requires a pending criminal investigation or legal proceeding.  State v. Wright, 206 N.C. App. 239, 243, 696 S.E.2d 832, 836 (2010).  Public justice, it said, is “a broad concept.”  Id. at 244, 696 S.E.2d at 836.

Habitual misdemeanor assault is a statutory offense.  A person commits the offense if he or she violates G.S. 14-33 (misdemeanor assault) and causes physical injury, or G.S. 14-34 (assault by pointing a gun), and he or she has two or more prior assault convictions.  N.C.G.S. § 14-33.2.  Thus, physical injury is an element of habitual misdemeanor assault, even if the predicate violation of Section 14-33 does not require such a showing.  See State v. Garrison, 225 N.C. App. 170, 174, 736 S.E.2d 610, 613 (2013).  In addition, the statute treats “prior assault convictions as elements.”  State v. Sydnor, 246 N.C. App. 353, 356, 782 S.E.2d 910, 913 (2016).  The old rule was that each count of a multicount indictment should be complete in itself.  E.g., State v. Wilson, 315 N.C. 157, 165, 337 S.E.2d 470, 476 (1985).  By statute, however, when prior convictions are elements of another offense, the prior convictions must be alleged in a separate pleading or in a separate count.  N.C.G.S. § 15A-928.  Accordingly, an indictment for habitual misdemeanor assault is not invalid that alleges the predicate assault and the prior convictions in separate counts.  State v. Barnett, 245 N.C. App. 101, 114, 784 S.E.2d 188, 197, rev’d in part on other grounds, 369 N.C. 298, 794 S.E.2d 306 (2016).

State v. Coffey

The defendant in Coffey, a deputy sheriff, was indicted for 14 counts of felony obstruction of justice based on his falsely certifying that for seven years (2012-2018) Sheriff Brindel Wilkins and Chief Deputy Sherwood Boyd had completed mandatory firearms training, necessary to maintain law enforcement certification.  Each count alleged essentially the following:

the defendant named above unlawfully, willfully and feloniously with deceit and intent to defraud, did commit the infamous offense of obstruction of justice by knowingly providing false and misleading information in training records indicating that mandatory in-service training and annual firearm qualification had been completed by [Sheriff Wilkins / Chief Deputy Boyd] . . . knowing that it had in fact not been completed, and knowing that these records and/or the information contained in these records would be and were submitted to the North Carolina Sheriff’s Education and Training Standards Division thereby allowing [Sheriff Wilkins / Chief Deputy Boyd] to maintain his law enforcement certification when he had failed to meet the mandated requirements.

The jury found the defendant guilty of 12 counts of obstructing justice.  (Two were dismissed prior to trial.)  Judgment was entered, and the defendant appealed.  Coffey, 2024 WL 675881, at *2.

On appeal, the defendant argued the indictments failed sufficiently to allege obstruction of justice.  The Court of Appeals identified the issue as determining what exactly constitutes an act that prevents, obstructs, impedes, or hinders public justice.  Coffey, 2024 WL 675881, at *3.  Reviewing relevant precedents, the Court of Appeals concluded that, for an act to “meet the elements” of obstruction of justice, the act must “be one that is done for the purpose of hindering or impeding a judicial or official proceeding or investigation.”  Coffey, 2024 WL 675881, at *5.  It found no allegation in the indictments here that the defendant’s acts “were done to subvert a potential subsequent investigation or legal proceeding.”  Id.  The Court of Appeals concluded that the indictments failed to allege facts supporting each element and failed to state an essential element of common law obstruction of justice.  Coffey, 2024 WL 675881, at *6.

State v. Jackson

The defendant in Jackson was indicted for rape, sex offense, kidnapping, assault on a female, habitual misdemeanor assault, interfering with emergency communications, assault with a deadly weapon, and assault inflicting serious injury.  The indictment alleged, in pertinent part:

III.      . . . the defendant named above unlawfully, willfully, and feloniously did kidnap S.M. (DOB 8/16/1974), a person who had attained the age of 16 years or more by unlawfully confining and removing her, without her consent, and for the purpose of terrorizing S.M. and for the purpose of facilitating the commission of a felony.  S.M. was seriously injured.  This act was done in violation of N.C.G.S. § 14-39 [kidnapping]

IV.     . . . the defendant named above unlawfully and willfully did assault and strike S.M. (DOB 8/16/1974), a female person. The defendant is a male person and was at least 18 years of age when the assault occurred.  This act was done in violation of N.C.G.S. § 14-33(c)(2) [assault on a female].

V.     . . . the defendant had been previously convicted of two or more felony or misdemeanor assaults, and the earlier of these convictions occurred no more than 15 years prior to the date of the current offenses, to wit:

            [identifying prior convictions]

            . . . .

VIII.     . . . the defendant named above unlawfully and willfully did assault and strike S.M. (DOB 8/16/1974), by hitting her shoulder, thereby inflicting serious injury.  This act was done in violation of N.C.G.S. § 14-33.2 [habitual misdemeanor assault]

The defendant was convicted and appealed, arguing that the indictment for habitual misdemeanor assault was invalid because count IV failed to allege the element of physical injury. The Court of Appeals disagreed, holding that habitual misdemeanor assault was sufficiently alleged in counts V and VIII.  As the majority explained, count V alleged two prior assault convictions, and count VIII alleged a violation of Section 14-33.  Jackson, 2024 WL 925480, at *7.  Though count VIII alleged “serious injury” rather than “physical injury,” the indictment “still served its purpose,” that is, to notify the defendant of the offense charged.  Id. at *8.  Dissenting in part, Judge Murphy concurred that missing elements “may be imputed from a separate count.”  Jackson, 2024 WL 925480, at *9 (Murphy, J., concurring in part and dissenting in part).  But he concluded that “serious injury” is not synonymous with “physical injury,” and that, absent an allegation of physical injury, the indictment for habitual misdemeanor assault was fatally defective.  Jackson, 2024 WL 925480, at *14-15 (Murphy, J., concurring in part and dissenting in part).


From the perspective of the common law rule requiring a recitation of the elements, the results in Coffey and Jackson are hard to square.  Though the indictments in Coffey literally alleged an “obstruction of justice,” the Court of Appeals held they did not sufficiently allege obstruction without identifying a prohibited purpose.  Conversely, in Jackson, the indictments did not literally allege the element of physical injury, yet the majority upheld the indictment because it provided adequate notice of the offense charged.  In one case, the elements were alleged, and the indictments were deemed defective.  In the other, an element was omitted, and the indictment was sustained.

The cases appear somewhat more consistent from the perspective of the statutory requirement for a factual statement supporting every element.  To the extent a purpose to hinder an investigation is an element of obstructing justice, the indictments in Coffey were self-defeating.  They alleged instead a purpose of allowing the defendant’s supervisors to maintain their certifications.  Coffey, 2024 WL 675881, at *5.  (The Court of Appeals simply did not address the extent to which a sheriff and his chief deputy’s avoiding their mandatory firearms training for seven years might hinder or impede an official investigation.)  But if prolixity doomed the indictments in Coffey, it saved the indictment in Jackson.  Cobbling together the elements of habitual misdemeanor assault from various counts in the multi-count indictment, the Court of Appeals found sufficient allegations to put the defendant on notice of the intended charge.

The responsibility for drafting valid criminal pleadings falls, of course, on the prosecutor.  And “[p]rosecutors should be extremely careful in drafting bills of indictment to avoid possibilities of error.”  State v. Russell, 282 N.C. 240, 248, 192 S.E.2d 294, 299 (1972).  If the problem in Coffey arose from a disagreement over the scope of common law obstruction of justice, the problem in Jackson was more easily avoidable.  Statutory offenses should be charged in the language of the statute.  Jackson, 2024 WL 925480, at *8.  To be sure, the State prevailed in Jackson, albeit over a dissent.  Nevertheless, “[t]he accustomed and approved forms are accessible, and should be followed by solicitors, till . . . they are modified and simplified by statute.”  Russell, 282 N.C. at 248, 192 S.E.2d at 299.