State v. Allison

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-129 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 STATE OF NORTH CAROLINA v. Gaston County No. 12 CRS 51932 RONNEY JAMES ALLISON Appeal by defendant from judgment entered 10 October 2012 by Judge Hugh B. Lewis in Gaston County Superior Court. Heard in the Court of Appeals 11 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Neal T. McHenry, for the State. Jon W. Myers for defendant. ELMORE, Judge. This charging case Ronney addresses James the Allison sufficiency of an (defendant) with indictment violating a domestic violence protective order with a deadly weapon under N.C. Gen. Stat. § 50B-4.1. After careful affirm. I. Background consideration, we -2On 21 October 2011, the Gaston County District Court issued a domestic violence protective order (the protective order) for Terri Smith (Smith) against defendant, her then boyfriend. The protective order, which was effective until 21 October 2012, ordered defendant to cease contact with Smith and to stay away from her workplace and residence located at 2167 Camelot Court, Gastonia. On 10 February 2012, defendant was arrested for violating the protective order while in possession of a deadly weapon, a knife, and resisting a public officer. Defendant had attempted to enter Smith s residence by using a knife to cut through a screen. A Gaston charging defendant County with grand jury violating issued the an indictment domestic violence protective order with a deadly weapon under N.C. Gen. Stat. § 50B-4.1, and for resisting a public officer under N.C. Gen Stat. § 14-223. The indictment for the offense of violating protective order with a deadly weapon provided: The jurors for the State upon their oath present that on or about the date(s) of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did WHILE IN POSSESSION OF A DEADLY WEAPON TO WIT: A KNIFE VIOLATE A VALID PROTECTIVE ORDER ENTERED PURSUANT TO CHAPTER 50B-4.1(G) OF THE NORTH CAROLINA GENERAL STATUTES TO WIT: DEFENDANT WAS STANDING ON THE VICTIM S BACK the -3BORCH [sic] LOCATED AT 2167 CAMELOT COURT GASTONIA, NC 28052 WHILE IN POSSESSION OF A KNIFE. THE PROTECTIVE ORDER WAS ISSUED BY THE HONORABLE JUDGE JOHN K. GREENLEE ON 10/21/2011. Pursuant to a plea agreement, defendant pled guilty to the lesser offense of attempted violation of the protective order with a deadly weapon. The trial court gave defendant credit for the 217 days he spent in confinement prior to the judgment and issued an active term of 11 to 23 months imprisonment. II. Sufficiency of the Indictment Defendant s sole argument on appeal is that the indictment charging him with violating the protective order was facially invalid. We disagree. [W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). of an indictment de novo. On appeal, we review the sufficiency State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). An indictment must contain [a] plain and concise factual statement in each count which, without allegations of an -4evidentiary nature, asserts facts supporting every element of a criminal offense and sufficient precision defendants of the accusation. the defendant s clearly conduct to commission apprise which is the the thereof defendant subject N.C. Gen. Stat. § 15A-924 (2011). of with or the Our Courts have held that [a]n indictment is not facially invalid as long as it notifies an accused of the charges against him sufficiently to allow him to prepare an adequate defense and to protect him from double jeopardy. State v. Haddock, 191 N.C. App. 474, 476-77, 664 342 S.E.2d 339, sufficient if indictment the is (2008). illegal clearly Further, [n]otification or omission forth set act so that understanding may know what is intended. at 656, 675 S.E.2d at 411. a alleged person of in is the common McKoy, 196 N.C. App. (citations and quotations omitted) (alteration in original). N.C. violating Gen. a Stat. domestic § 50B-4.1(g) violence defines protective the offense of while in order possession of a deadly weapon as follows: Unless covered under some other provision of law providing greater punishment, any person who, while in possession of a deadly weapon on or about his or her person or within close proximity to his or her person, knowingly violates a valid protective order as provided in subsection (a) of this section by failing to stay away from a -5place, or a person, as so directed under the terms of the order, shall be guilty of a Class H felony. N.C. Gen. Stat. § 50B-4.1(g) (2011). In the indictment case is sub facially judice, defendant defective contends because it that fails (1) the to identify the person or place that he was directed to stay away from, as directed by the protective order; and (2) because it alleges that defendant violated a valid protective order entered pursuant to [C]hapter 50B-4.1(g) of the North Carolina General Statutes, which pertains to the violation of a protective order as opposed to its entry. To determine whether defendant s indictment was sufficient to impart subject matter jurisdiction, we must discern (1) whether a person of common understanding would know that the intent of the indictment was to charge defendant with the offense, and (2) whether defendant s constitutional rights to notice and protected. freedom double jeopardy were adequately McKoy, 196 N.C. App. at 657, 675 S.E.2d at 411-12. Although indictment, from it the victim provides is that not directly defendant was named standing in on the the victim s back porch located at 2167 Camelot Court, Gastonia, North Carolina in violation of a protective order issued by -6Judge John K. Greenlee on 21 October 2011. need further referenced clarification protective of order the Should defendant victim s specifically identity, prohibits the defendant from contacting Terri Smith, the victim in the instant case. Therefore, any person of common understanding would have notice that Terri Smith is the victim. The indictment also states that the defendant was at 2167 Camelot Court, Gastonia, which is the address that the protective order. understand defendant that was defendant was ordered to avoid in the A person of common understanding could surely the Camelot directed to Court stay address away from, was the according place to the protective order. The indictment references (1) a valid protective order issued on a specific date, (2) by a specific Gaston County trial judge, and (3) specifies the victim s address. The protective order named Terri Smith as the victim and includes the address defendant was ordered to avoid. Accordingly, we conclude that the indictment was not facially invalid. Should defendant have needed further clarification, he could have moved for a Bill of Particulars. 790 (1984). See State v. Whitfield, 310 N.C. 608, 313 S.E.2d Furthermore, as defendant does argue on appeal that the defective indictment placed him at risk of being subjected -7to double jeopardy, we conclude that defendant is protected from double jeopardy. 412 (finding identity of See McKoy, 196 N.C. App at 658, 675 S.E.2d at [d]efendant the victim was and not that confused the regarding indictment the provided defendant with sufficient notice. ). Finally, Stat. § defendant 50B-4.1(g) correctly outlines points the out offense that of N.C. Gen. violating a protective order while in possession of a deadly weapon, not its entry. However, this is the type of a hyper-technicality that is disfavored by our courts. 138, See State v. Bell, 311 N.C. 131, 316 S.E.2d 611, 615 (1984) (finding that the defendant s argument that his indictment was defective on the basis that it failed to allege the sex of the victims was hyper-technical). Defendant offers no indication of how he was misled or encountered difficulty in preparing his defense by inclusion of the statute in his indictment. This argument is without merit. III. Conclusion In sum, defendant s indictment was not facially invalid and therefore the trial court had jurisdiction to enter a judgment against the defendant. Accordingly, we affirm. Affirmed. Judges CALABRIA and STEPHENS concur. -8Report per Rule 30(e).

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