IN THE SUPREME COURT OF NORTH CAROLINA
No. 396PA17
Filed 10 May 2019
STATE OF NORTH CAROLINA
v.
MICHAEL LEE WHITE
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 563
(2017), finding no error in a judgment entered on 9 September 2015 by Judge J.
Thomas Davis in Superior Court, Graham County. Heard in the Supreme Court on
8 January 2019.
Joshua H. Stein, Attorney General, by John F. Oates, Jr., Assistant Attorney
General, for the State.
Glenn Gerding, Appellate Defender, by Daniel Shatz, Assistant Appellate
Defender, for defendant-appellant.
BEASLEY, Chief Justice.
The sole question presented by this appeal is whether the superseding
indictment upon which defendant was tried and convicted was facially defective, and
thus failed to establish jurisdiction in the trial court, because it identified the alleged
victim only as “Victim #1.” For the reasons stated below, we hold that an indictment
identifying the alleged victim only as “Victim #1” fails to satisfy the statutory
STATE V. WHITE
Opinion of the Court
requirement that the indictment name the victim; and, therefore, the indictment is
facially invalid. As a result, the trial court’s judgment must be vacated.
Background
Beginning in December 2010, the victim, Hannah,1 lived with her mother and
defendant in defendant’s trailer for a brief time when she was around seven years
old. Hannah reported to her aunt in 2013 that defendant had molested her during
her stay at the trailer. Defendant confessed in writing to sexually assaulting Hannah
after Hannah’s aunt reported the incident to the police. On 1 May 2013, an arrest
warrant was issued, alleging probable cause to believe that defendant “unlawfully,
willfully and feloniously did engage in a sex offense with [Hannah], a child under the
age of 13 years.” On the same day, defendant was arrested and charged with one
count of first-degree sex offense with a child in violation of N.C.G.S. § 14-27.4A(1)
(recodified as N.C.G.S. § 14-27.28(a) (2015)). A grand jury returned a true bill of
indictment on this charge on 8 July 2013. On 18 May 2015, the grand jury returned
a superseding indictment, which charged defendant with one count of sexual offense
with a child by an adult, stating that he “engage[d] in a sexual act with Victim #1, a
child who was under the age of 13 years, namely 7 years old,” and added a new count
of indecent liberties with a child, alleging that “[t]he name of the child is Victim #1.”
1 The victim will be referred to as Hannah, a pseudonym to protect the child’s privacy.
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Opinion of the Court
Both the arrest warrant and the original indictment identified Hannah by her full
name.
The case was tried at the 31 August 2015 session of Superior Court, Graham
County, with the Honorable J. Thomas Davis presiding. On 9 September 2015, the
jury returned a verdict finding defendant guilty of sexual offense with a child by an
adult offender. The trial court imposed an active sentence of 300 to 369 months of
imprisonment. On 17 October 2017, the Court of Appeals affirmed defendant’s
conviction in an unpublished opinion, State v. White, ___ N.C. App. ___, 805 S.E.2d
563,
2017 WL 4638188 (2017) (unpublished). Defendant petitioned this Court for
review, arguing that the Court of Appeals erred by holding that an indictment that
failed to identify the alleged victim was not facially invalid.
Before the Court of Appeals, defendant argued that the superseding
indictment upon which he was convicted was invalid because it identified the victim
as “Victim #1” rather than naming the victim as the short-form indictment statute
for the offense directs. White, 2017 WL 4638188, at * 2. The Court of Appeals held
that the indictment was valid because the identity of the victim could be ascertained
by reference to other documents in the record. Id. at *3 (relying on State v. McKoy,
196 N.C. App. 650, 657-58,
675 S.E.2d 406, 412, appeal dismissed and disc. rev.
denied,
363 N.C. 586,
683 S.E. 2d 215 (2009)).
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Opinion of the Court
Analysis
“A defendant can challenge the facial validity of an indictment at any time,
and a conviction based on an invalid indictment must be vacated.” State v. Campbell,
368 N.C. 83, 86,
772 S.E.2d 440, 443 (2015) (citing McClure v. State,
267 N.C. 212,
215,
148 S.E.2d 15, 17-18 (1966)). The sufficiency of an indictment is a question of
law reviewed de novo. See, e.g., State v. Sturdivant,
304 N.C. 293, 307-11,
283 S.E.2d
719, 729-31 (1981).
“[A] valid bill of indictment is essential to the jurisdiction of the trial court to
try an accused for a felony.” State v. Rankin, 371 N.C. 885, 886,
821 S.E.2d 787, 790
(2018) (alteration in original) (quoting Campbell,
368 N.C. at 86, 772 S.E.2d at 443).
Generally, an indictment “is fatally defective if it ‘fails to state some essential and
necessary element of the offense of which the defendant is found guilty.’ ” State v.
Ellis,
368 N.C. 342, 344,
776 S.E.2d 675, 677 (2015) (quoting State v. Gregory,
223
N.C. 415, 418,
27 S.E.2d 140, 142 (1943)). While “it is not the function of an
indictment to bind the hands of the State with technical rules of pleading,” State v.
Williams,
368 N.C. 620, 623,
781 S.E.2d 268, 270-71 (2016) (quoting Sturdivant,
304
N.C. at 311,
283 S.E.2d at 731), the indictment must fulfill its constitutional
purposes—to “identify clearly the crime being charged, thereby putting the accused
on reasonable notice to defend against it and prepare for trial, and to protect the
accused from being jeopardized by the State more than once for the same crime,”
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Opinion of the Court
Sturdivant, 304 N.C. at 311,
283 S.E.2d at 731 (citing Gregory,
223 N.C. 415,
27
S.E.2d 140).
The General Assembly has the power “to relieve the State of the common law
requirement that every element of the offense be alleged” in an indictment, State v.
Lowe, 295 N.C. 596, 603,
247 S.E.2d 878, 883 (1978), “provided the form established
is sufficient to apprise the defendant with reasonable certainty of the nature of the
crime of which he stands charged.”
Id. at 603,
247 S.E. 2d at 883 (quoting State v.
Harris,
145 N.C. 456, 457-58,
59 S.E. 115, 116 (1907)). In particular, this Court has
held that statutes authorizing short form indictments for rape and first-degree sexual
offense “comport with the requirements of the North Carolina and United States
Constitutions,” even though they do not require each essential element of the offense
to be alleged. State v. Wallace,
351 N.C. 481, 505,
528 S.E.2d 326, 342, cert. denied,
531 U.S. 1018,
121 S. Ct. 581,
148 L. Ed. 2d 498 (2000). Furthermore, courts do not
favor quashing an indictment. See, e.g., State v. Greer,
238 N.C. 325, 327,
77 S.E.2d
917, 919 (1953).
Use of the Phrase “Victim #1” Does Not Constitute “Naming the Victim.”
“The goal of statutory interpretation is to determine the meaning that the
legislature intended upon the statute’s enactment.” Rankin, 371 N.C. at 889,
821
S.E.2d at 792 (citing State v. Beck,
359 N.C. 611, 614,
614 S.E.2d 274, 276-77 (2005)).
“Where the language of a statute is clear and unambiguous, there is no room for
judicial construction and the courts must construe the statute using its plain
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Opinion of the Court
meaning.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209,
388 S.E.2d 134,
136 (1990) (citing State ex rel. Utils. Comm’n v. Edmisten,
291 N.C. 451,
232 S.E.2d
184 (1977)).
Subsection 15-144.2(b) of the North Carolina General Statutes states:
If the victim is a person under the age of 13 years, it is sufficient to
allege that the defendant unlawfully, willfully, and feloniously did
engage in a sex offense with a child under the age of 13 years,
naming the child, and concluding as required by law. Any bill of
indictment containing the averments and allegations named in this
section is good and sufficient in law as an indictment for a sex
offense against a child under the age of 13 years and all lesser
included offenses.
N.C.G.S. § 15-144.2(b) (Supp. 2018) (emphasis added). The statutory language is
clear and unambiguous: it requires that the child be named as part of the allegations
in the indictment. In common understanding, to name someone is to identify that
person in a way that is unique to that individual and enables others to distinguish
between the named person and all other people. The phrase “Victim #1” does not
distinguish this victim from other children or victims.
In holding that “naming the victim” could be satisfied by use of “Victim #1,”
the Court of Appeals relied on State v. McKoy. There the court evaluated the
sufficiency of a short-form indictment for second-degree rape, which identified the
victim by the initials “RTB.” McKoy, 196 N.C. App. at 654,
675 S.E.2d at 410. The
relevant statutes required that the short-form indictment “nam[e] the victim.”
Id. at
655,
675 S.E.2d at 410 (quoting N.C.G.S. §§ 15-144.1(a), -144.2(a) (2007)). The court
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Opinion of the Court
acknowledged that no North Carolina court had interpreted “whether ‘naming’ the
victim [could] only be satisfied by using the victim’s full name, or whether a
nickname, initials or other identification method would be sufficient.” Id. at 657, 675
S.E.2d at 411. The court held that, when use of the victim’s initials was adequate to
provide notice of the victim’s identity and protect the defendant from double jeopardy,
the indictment was sufficient.
Id. at 657-58,
675 S.E.2d at 411-12 (first citing State
v. Coker,
312 N.C. 432, 435,
323 S.E.2d 343, 346 (1984); and then citing Lowe,
295
N.C. at 603,
247 S.E.2d at 883). Even if this Court decides that initials are sufficient
to satisfy the “naming the victim” requirement, the indictment in this case is still
insufficient. The State concedes that its intent was to conceal the identity of the
child—an intent at odds with the purpose of the naming requirement: to provide
notice of the essential elements of the crime charged to the accused. Thus, use of the
phrase “Victim #1” does not constitute “naming the child.”
The State points to the North Carolina Rules of Appellate Procedure and
various provisions in the North Carolina General Statutes regarding juvenile
offenders as evidence of a preference for protecting the privacy of minors. These
comparisons are inapt.
It is true that this Court has created rules for the protection of juvenile victims’
identities in documents filed in the Appellate Division. See, e.g., N.C. R. App. P. 42(b),
https://www.nccourts.gov/assets/inline-files/North-Carolina-Rules-of-Appellate-
Procedure-Codified-7-January-2019.pdf?U4QsCKDrkl0LSp9BdSHmngXdzgDylUGf
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Opinion of the Court
(mandating that, in appeals from juvenile proceedings, counsel must use “initials or
a pseudonym instead of the minor’s name” in briefs, motions, and petitions filed in
certain matters, including appeals “that involve a sexual offense committed against
a minor”). This Court has the authority to promulgate rules for the appellate courts.
It does not, however, have the authority to rewrite statutes to implement its own
policy preferences.
Additionally, the State cites statutes enacted to keep juveniles’ records
confidential. See N.C.G.S. § 7B-2901 (2017) (governing the maintenance under seal
of records pertaining to reports of juvenile abuse, neglect, and dependency); id.
§ 7B-3000 (2017) (governing confidentiality of records of the juvenile courts); id. § 7B-
3001 (2017) (requiring that all court records pertaining to juvenile offenders “be
withheld from public inspection”); id. § 7B-3100 (2017) (prohibiting the disclosure of
information “that would reveal the identity of [any juvenile under investigation]”).
These statutes all govern the keeping of records of allegedly abused, neglected,
dependent, or delinquent juveniles rather than records in adult criminal cases. The
existence of these particular statutes does not negate the requirements of N.C.G.S §
15-144.2(b).
Adopting the State’s interpretation that “Victim #1” is sufficient to name the
victim would frustrate the purpose of the statute and render useless the phrase
“naming the victim.” See Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550,
556,
276 S.E.2d 443, 447 (1981) (“[A] statute must be considered as a whole and
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STATE V. WHITE
Opinion of the Court
construed, if possible, so that none of its provisions shall be rendered useless or
redundant. It is presumed that the legislature intended each portion to be given full
effect and did not intend any provision to be mere surplusage.”). If we were to adopt
this proposed interpretation, the State would be permitted to prosecute defendants
using indictments that ignore plainly stated statutory pleading requirements.
Facial Validity is Determined by Evaluating Only the Allegations in
the Criminal Pleading.
We turn now to the question of whether a court may supplement the
allegations in an indictment by referring to extrinsic evidence. The Court of Appeals
relied upon our opinion in State v. Ellis to conclude that reference to various record
documents and trial evidence to supplement a missing material allegation in an
indictment is permissible.
In Ellis the defendant was convicted upon an indictment charging injury to
personal property after, in the course of committing larceny at an electrical
substation on the campus of North Carolina State University (NCSU), he damaged
copper wire located on the property. Ellis, 368 N.C. at 342-43,
776 S.E.2d at 676. The
defendant appealed his conviction, arguing the indictment was fatally defective for
failing to allege that NCSU and NCSU High Voltage Distribution were legal entities
capable of owning property.
Id. at 343-44,
776 S.E.2d at 677. This Court observed
that, because NCSU was authorized by N.C.G.S. § 116-3 to own property, the
indictment need not repeat that the entity was so empowered. Id. at 345,
776 S.E.2d
at 678 (citing Campbell,
368 N.C. at 87, 772 S.E.2d at 444 (holding that “alleging
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Opinion of the Court
ownership of property in an entity identified as a church or other place of religious
worship . . . signifies an entity capable of owning property”)).
The Court of Appeals in the instant case relied on Ellis for the proposition that
a court may look outside the four corners of the indictment for information that can
be used to supplement the missing essential element in the indictment. White, 2017
WL 4638188, at *4-5 (citing Ellis,
368 N.C. at 345,
776 S.E.2d at 678). According to
this Court, NCSU’s ability to own property is an inherent power of the University,
not a separate element that must be alleged. See Ellis,
368 N.C. at 345,
776 S.E.2d
at 678. Therefore, the State adequately alleged that the damaged property in Ellis
was owned “by another” when it alleged simply that the property was owned by
NCSU. See
id. at 345,
776 S.E.2d at 678.
This Court made clear in Ellis that facial validity “should be judged based
solely upon the language of the criminal pleading in question without giving any
consideration to the evidence that is ultimately offered in support of the accusation
contained in that pleading.” Id. at 347,
776 S.E.2d at 679. A court may not look to
extrinsic evidence to supplement a missing or deficient allegation in an indictment.
See, e.g., State v. Brice,
370 N.C. 244, 250,
806 S.E.2d 32, 36-37 (2017) (opining that
“under the traditional test utilized in evaluating the facial validity of a criminal
pleading,” a reading of the indictment only revealed that all essential elements of the
crime of larceny were charged); State v. Loesch,
237 N.C. 611, 612,
75 S.E.2d 654, 655
(1953) (observing that an indictment for a statutory offense “must be framed upon
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Opinion of the Court
the statute” and such compliance “must distinctly appear upon the face of the
indictment itself”). Standing alone, the superseding indictment here fails to identify
the victim because her identity cannot be ascertained without referring to defendant’s
confession, the arrest warrant, and the original indictment. Therefore, the
indictment is facially invalid.
Here, the dissent agrees with the Court of Appeals’ conclusion that the arrest
warrant, original indictment, and proceedings at trial may be considered in
evaluating whether a defendant had sufficient notice of the crime charged, with Ellis
providing the legal authority for the consideration of these additional materials. The
additional information upon which Ellis relies, which consists of the statutory
provision setting out the inherent authority of NCSU to own property, is
fundamentally different than the additional case-specific factual material upon which
the Court of Appeals and the dissent rely. Ultimately, Ellis stands for the proposition
that one determines the facial validity of an indictment by examining the four corners
of the charging instrument in light of the applicable law without making any
reference to additional factual information contained elsewhere in the record like that
upon which the Court of Appeals and our dissenting colleagues rely.
We recognize the compelling public policy concerns that motivate the State and
our courts to protect victims’ identities. Protecting a victim’s identity from the public
increases privacy and safety, and encourages overall reporting of sexual assaults.
Public access to a victim’s identity often leads to inquiries and commentary from the
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Opinion of the Court
community or media, compromising victim privacy. See Daniel M. Murdock,
Comment, A Compelling State Interest: Constructing a Statutory Framework for
Protecting the Identity of Rape Victims, 58 Ala. L. Rev. 1177, 1180 (2007).
Furthermore, studies show that significantly more rape victims would come forward
to report assaults if they could rely on the justice system to protect them from public
scrutiny. See
id. (“Throughout the nation, ‘rape remains the most underreported
crime within the criminal justice system.’ ” (quoting People v. Ramirez, 55 Cal. Ct.
App. 47, 53,
64 Cal. Rptr. 2d 9, 13 (2000)); see also Moira E. McDonough, Note,
Internet Disclosures of a Rape Accuser’s Identity (Focus on the Kobe Bryant Case),
3
Va. Sports & Ent. L.J. 284, 293 (2004) (“The growing recognition of privacy rights in
this country necessitates protecting rape victims’ identities. Not only is a person’s
status as a victim within a zone of privacy, this protection will also help ensure
victims’ safety and alleviate the problems of underreporting.”).
It is within the purview of the General Assembly to mandate that the victim’s
identifying information be redacted from documents generated in sexual assault
prosecutions, a measure that many other states have taken.2 Additionally, the State
2 See, e.g., Mo. Rev. Stat. § 595.226(1) (2017) (stating that any information that could
be used to identify or locate a victim of a sexual offense shall be redacted before any such
record is publicly disclosed); N.J. Rev. Stat. § 2A:82-46 (2017) (stating that the name, address,
and identity of any victim under the age of 18 at the time of the alleged sexual offense shall
not appear on indictment or any other public record, and requiring that initials or a fictitious
name be used instead; any document identifying a minor victim of an alleged sexual assault
“shall be confidential and unavailable to the public”);
Wash. Rev. Code § 10.97.130 (2018)
(prohibiting public release of information identifying sexual assault victims under age
eighteen, including name, address, location, photographs, and information about victim’s
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Opinion of the Court
may move to seal indictments in individual cases to protect victim information from
public inspection. It is not, however, within this Court’s authority to read these
protections into a statute that does not provide them on its face.
Because the Court of Appeals erred when it held that “Victim #1” constituted
“naming the victim” as contemplated by the short-form indictment statute, and
because the court referred to and relied on record documents and trial evidence to
supplement the faulty indictment, we reverse the decision below and remand this
case to the Court of Appeals for further remand to the trial court with instructions to
vacate the trial court’s judgment.
REVERSED AND REMANDED.
Justice DAVIS did not participate in the consideration or decision of this case.
relationship to the alleged perpetrator).
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Justice NEWBY dissenting.
I fully join Justice Morgan’s dissent in this case. I write separately to explain
that I also dissent on the basis of the rationale stated in the dissenting opinion in
State v. Rankin, ___ N.C. ___, ___, 821 S.E.2d 787, 801-11 (2018) (Martin, C.J.,
dissenting) (discussing the progression of indictment jurisprudence and concluding
that the Criminal Procedure Act “reveals significant evidence” indicating that flaws
in indictments should no longer be considered jurisdictional matters).
The purpose of an indictment is to notify the defendant of the charges against
him and to protect him against being tried twice for the same offense (double
jeopardy). Here the indictment fulfilled those purposes as defendant was fully aware
of the charges against him. He confessed to his wrongful conduct. He was tried and
convicted; jeopardy attached. Yet, based on archaic decisions predating notice
pleading under the Criminal Procedure Act, the majority concludes defendant’s
indictment is technically inadequate. Once again, a child victim must endure the
emotional distress and indignities of another trial because of a purely legal
technicality. It is this type of legal gamesmanship which leads to cynicism about
whether justice prevails in our criminal justice system.
Justice MORGAN dissenting.
While I agree with my learned colleagues in the majority that N.C.G.S. § 15-
144.2(b) (2017) expressly requires that a short-form indictment must name the
alleged child victim in a sex offense that is charged pursuant to this statute in order
for the indictment to be facially valid, I firmly disagree with them that the
superseding indictment upon which defendant was found guilty in this case failed to
comport with the statute’s requirements. In light of the facts and circumstances of
this particular case, the majority unfortunately places the fundamental right of a
criminal defendant to have sufficient notice of the charges lodged against him and
the State’s laudable aim to protect the identity of a minor who is the alleged victim
of a sex crime on an unnecessary collision course based upon a narrow and rigid
interpretation of the applicable law. I embrace the fundamental reasoning of the
Court of Appeals in this case and would arrive at its same outcome.
North Carolina General Statutes section 15-144.2(b), in delineating the
essentials of a short-form indictment for a sex offense, states in pertinent part:
(b) If the victim is a person under the age of 13
years, it is sufficient to allege that the defendant
unlawfully, willfully, and feloniously did engage in a sex
offense with a child under the age of 13 years, naming the
child, and concluding as aforesaid [in subsection (a)].
N.C.G.S. § 15-144.2(b) (Supp. 2018) (emphasis added). N.C.G.S. § 14-27.4A(a) (now
STATE V. WHITE
Morgan, J., dissenting
recodified as N.C.G.S. § 14-27.28 (2015) established:
(a) A person is guilty of statutory sexual offense
with a child by an adult if the person is at least 18 years of
age and engages in a sexual act with a victim who is a child
under the age of 13 years.
Id. § 14-27.28 (2017).
While an indictment is defined in N.C.G.S. § 15A-641(a), the operation of a
superseding indictment in conjunction with the original indictment which it
supplants is addressed in N.C.G.S. § 15A-646. Every criminal proceeding by
indictment is sufficient in form for all intents and purposes if it expresses the charge
against the defendant in a plain, intelligible, and explicit manner; and the same shall
not be quashed, nor the judgment thereon stayed, by reason of any informality or
refinement, if in the bill or proceeding, sufficient matter appears to enable the court
to proceed to judgment.” N.C.G.S. § 15-153 (2013), quoted in State v. Williams, 368
N.C. 620, 623,
781 S.E.2d 268, 271 (2016). “[W]e are no longer bound by the ‘ancient
strict pleading requirements of the common law.’ ” Williams,
368 N.C. at 623,
781
S.E.2d at 271 (quoting State v. Freeman,
314 N.C. 432, 436,
333 S.E.2d 743, 746
(1985). Instead, contemporary criminal pleadings requirements have been “designed
to remove from our law unnecessary technicalities which tend to obstruct justice.”
Freeman,
314 N.C. at 436,
333 S.E.2d at 746. “An indictment or criminal charge is
constitutionally sufficient if it apprises the defendant of the charge against him with
enough certainty to enable him to prepare his defense and to protect him from
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Morgan, J., dissenting
subsequent prosecution for the same offense.” State v. Coker, 312 N.C. 432, 434,
323
S.E.2d 343, 346 (1964).
In the present case, the original indictment charged defendant with a sex
offense committed against a minor child in violation of N.C.G.S. § 14-27.4A(a). The
minor child was accurately identified in the indictment as the alleged victim by her
first and last names. This disclosure of the first and last name of the alleged victim
also appeared in the arrest warrant that was issued for defendant and which served
as a preface for defendant’s subsequent indictment. At this stage in defendant’s
criminal proceedings, he had been clearly apprised of the identity of his alleged child
victim through each of the two critical criminal procedural stages of arrest and
indictment. Upon the State’s determination to successfully seek a superseding
indictment from a grand jury renewing the same charge that appeared in the original
indictment with the alleged victim’s first and last name, and altering the dates of the
alleged offenses in order to be consistent with the time period shown in the arrest
warrant that also bore the alleged victim’s first and last name, the State deemed it
prudent to refer to the alleged child victim in the superseding short-form indictment
authorized by N.C.G.S. § 15-144.2(b) merely as “Victim #1.” This approach was an
obvious effort employed by the State to protect the alleged victim’s identity in light of
the apparent satisfaction of its constitutional duty, as enacted in the cited statutory
law and consistently interpreted by this Court in such cases as Williams, Freeman,
and Coker, to apprise defendant of the charged sex offenses against him with enough
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Morgan, J., dissenting
certainty to enable him to prepare his defense and to protect him from subsequent
prosecution for the same offenses.
The effectiveness and sufficiency of the notice given to defendant as to the
identity of “Victim #1” in the superseding indictment, based upon the alleged victim’s
name being divulged in the original indictment, is readily apparent from the
procedural and substantive circumstances at the trial level. As the Court of Appeals
astutely noted in its rendered opinion, the superseding indictment was filed in the
same criminal case bearing the same file number as the warrant and original
indictment; the dismissal filed by the State to dispose of the original indictment upon
the introduction of the superseding indictment expressly noted that the only
substantive changes between the two charging instruments were a correction of the
dates of offense and an increase in the level of the charged felony; defendant did not
contend at any point during his trial that the identity of the alleged victim was in
question or that he faced any difficulty in preparing his defense. With this confluence
of constitutional law, statutory law, and appellate case law readily flowing with the
particular facts and circumstances contained in the instant case, I agree with the
conclusion of the lower appellate court that defendant was given sufficient notice as
to the identity of the alleged child victim and that nothing in the record demonstrates
that such notice was affected by the superseding indictment.
The majority’s restricted view of the properness of the superseding indictment
in the case at bar is further displayed by its application of the Court’s decision in
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STATE V. WHITE
Morgan, J., dissenting
State v. Ellis, 368 N.C. 342,
776 S.E.2d 675 (2015). While my colleagues of the
majority conveniently frame the issue of the State’s employment of the superseding
short-form indictment in a sweepingly broad manner so as to couch the matter in
terms of the charging instrument’s allegations being buttressed by “extrinsic
evidence” in order to reiterate the principle that “[a] court may not look to extrinsic
evidence to supplement a missing or deficient allegation in an indictment” in
depicting the Court of Appeals’ application of Ellis in its decision below, I do not
consider the Ellis decision to be determinative of this current case. The Court of
Appeals construed Ellis in a manner in which to authorize the lower appellate court
to authenticate its favorable view of the sufficiency of the superseding indictment by
considering matters which were extraneous to the charging instrument, stating that
in Ellis, this Court has “looked beyond the four corners of the documents” “[i]n holding
that the charging instruments were facially valid.” State v. White, ___ N.C. App. ___
805 S.E.2d 5632017 WL 4638188 at *5 (2017) (unpublished). This conclusion by the
Court of Appeals prompted the majority here to explain that this Court did not
authorize “the proposition that [the Court of Appeals] may look outside the four
corners of the indictment for information to supplement the missing essential
element in the indictment.” Because Ellis involves the element of the facial validity
of an indictment regarding the capability of an alleged victim entity to own property
that is the subject of a criminal charge, thus constituting a significant distinguishing
factor which does not exist in the present case, I would find that the Court of Appeals’
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STATE V. WHITE
Morgan, J., dissenting
reliance on Ellis was needless and the resulting usage of it by the majority is neatly
opportune. In my view, the majority does not sufficiently justify its determination
that the superseding indictment is facially invalid as to the identification of the
alleged child victim as “Victim #1” in light of the obvious achievement of required
notice to defendant which protected all of his constitutional rights, while
simultaneously satisfying the legal requirements for a valid short-form indictment
and salvaging some protection of privacy for the minor child.
For the reasons stated, I would modify and affirm the opinion of the Court of
Appeals in this case.
Justice NEWBY joins in this dissenting opinion.
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