An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1109
                       NORTH CAROLINA COURT OF APPEALS
                               Filed:     1 July 2014
STATE OF NORTH CAROLINA

                                                 Burke County
      v.
                                                 No. 10 CRS 52989

RANDAL EUGENE POWELL


      Appeal by defendant from judgment entered 21 March 2013 by

Judge   Sharon     Tracey    Barrett    in   Burke    County    Superior      Court.

Heard in the Court of Appeals 4 February 2014.


      Attorney General Roy Cooper, by Special                   Deputy      Attorney
      General Harriet F. Worley, for the State.

      Appellate   Defender  Staples   S.   Hughes,  by   Assistant
      Appellate Defender Barbara S. Blackman, for Defendant.


      ERVIN, Judge.


      Defendant     Randal     Eugene    Powell     appeals    from    a    judgment

sentencing him to a term of 300 to 369 months imprisonment based

upon his conviction for first degree statutory sex offense in

violation     of   N.C.      Gen.    Stat.   §    14-27.4A(a).        On     appeal,

Defendant contends that the trial court lacked jurisdiction to

enter judgment against him in this case on the grounds that the

indictment     that    had    been    returned      against    him    was    fatally
                                      -2-
defective.   After careful consideration of Defendant’s challenge

to the trial court’s judgment in light of the record and the

applicable   law,   we    conclude    that    the   trial   court’s   judgment

should remain undisturbed.

                           I. Factual Background

                           A. Substantive Facts

    B.W. and T.W. were ages 14 and 12, respectively, at the

time of trial.1     The two girls had lived with their mother and

Defendant, who was their mother’s live-in boyfriend and who was

over the age of eighteen, at all relevant times.

    According to Bethany and Tonya, Defendant sexually abused

both girls over an extended period of time, with this abuse

invariably   having      occurred    while    their   mother   was    at   work.

During the course of these episodes, Defendant would engage in

vaginal intercourse with Bethany while the other children were

bathing or watching television.              Although Defendant rubbed his

penis in the vicinity of Tonya’s vagina and inserted his penis

into her anal opening, he never penetrated her vagina with his

penis.   According to Tonya, the same things that happened to her

happened to Bethany.        The children never told anyone about the

abuse because they were afraid.              Although Bethany attempted to
    1
      B.W. and T.W. will be referred to as Bethany and Tonya,
respectively, throughout the remainder of this opinion, with
those names being pseudonyms utilized for ease of reading and to
protect the minors’ privacy.
                                           -3-
write    a   letter      to    her     mother    in   which    she    detailed      what

Defendant was doing to her, Defendant intercepted the letter and

ripped it apart before she could deliver it to her mother.2

     As      a   result       of   conduct      unrelated     to    this   case,     the

Department of Social Services removed the children from their

mother’s care and placed them in the home of their maternal

grandmother in September of 2010.                 In approximately November of

2010,     Bethany     and      Tonya     informed      their       grandmother      that

Defendant had “raped” them.                  Although these actions had been

going on for years, Bethany finally came forward out of fear

that she would become pregnant and get in more trouble.                            After

learning of the children’s allegations, their grandmother called

the police.

     On 15 November 2010, the children were taken for a physical

evaluation.       According to the information developed during that

evaluation,      Tonya    had      a   “significant”    healed       fissure   in    her

buttocks that could have been caused by a large bowel movement

or some other trauma.              Similarly, some of the tissue associated

with Bethany’s hymen was missing.

                               B. Procedural History



     2
      In addition, Bethany testified that she had attempted to
tell her mother about Defendant’s activities on one other
occasion. However, Bethany’s mother refused to listen to her at
that time.
                                                 -4-
      On     30    December         2010,    a         warrant       for   arrest    charging

Defendant with first degree statutory rape was issued.                                      On 7

February 2011, the Burke County grand jury returned a bill of

indictment charging Defendant with two counts of first degree

statutory     sexual       offense.              Prior    to     trial,     the     prosecutor

extended a negotiated plea offer to Defendant under which, in

return for Defendant’s pleas of guilty to the offenses charged

in the indictment, the State would agree that the charges that

had   been    lodged      against      Defendant          would       be   consolidated      for

judgment and that the sentence imposed upon Defendant would be

selected from the presumptive range.                       Defendant failed to accept

the proffered plea offer before it expired on 15 March 2013.

      The charges against Defendant came on for trial before the

trial court and a jury at the 18 March 2013 criminal session of

the Burke County Superior Court.                        On that date, the prosecutor

offered,     in    return      for     Defendant’s            plea    of   guilty     to    both

offenses charged in the indictment, to agree that Defendant’s

convictions        would       be    consolidated             for     judgment      and     that

Defendant     would       be   sentenced          at    the    top    of   the    presumptive

range.       At    the    time      that    this       proposed       negotiated     plea    was

discussed     on    the    record,         the    trial       court    informed     Defendant

that, assuming that he was sentenced as a Level II offender, the

bottom of the presumptive range would involve a 221 to 275 month
                                                  -5-
term of imprisonment and the top of the presumptive range would

involve      a    276     to    341       month       term    of    imprisonment.            After

discussing the proposed plea with his trial counsel, Defendant

rejected the State’s offer and elected to exercise his right to

trial by jury instead.

      As the parties engaged in the jury selection process, the

trial court informed them that it had reviewed the indictment in

light of the relevant statutory provisions and determined that

Defendant had been charged with violating N.C. Gen. Stat. § 14-

27.4A(a) rather than N.C. Gen. Stat. § 14-27.4(a)(1) and that,

if convicted, Defendant faced a mandatory minimum term of 300

months    imprisonment.              In    response,         Defendant’s          trial    counsel

indicated that he had understood that Defendant had been charged

with violating N.C. Gen. Stat. § 14-27.4(a)(1) rather than N.C.

Gen. Stat. § 14-27.4A(a).                  At that point, the prosecutor offered

to   allow       Defendant      to    enter       pleas      of    guilty       to   the   lesser-

included     offenses.           Although         the     trial         court   reiterated     its

belief    that      the     charges        alleged       in       the    indictment        returned

against Defendant rested upon alleged violations of N.C. Gen.

Stat.    §       14-27.4A      and    that        a    conviction         would      require   the

imposition         of   a      mandatory      minimum         sentence          of   300    months

imprisonment, Defendant rejected the State’s renewed plea offer.
                                           -6-
      At the conclusion of the State’s case, the trial court

dismissed      the     first   degree      statutory        sexual    offense      charge

relating to the accusations involving Bethany for insufficiency

of the evidence.           During the jury instruction conference, the

trial court informed counsel for the parties that the jury would

be   allowed      to    consider     the   issue       of   whether       Defendant    had

committed the offense specified in N.C. Gen. Stat. § 14-27.4A(a)

stemming from the accusations involving Tonya given that the

language of the indictment alleged that Defendant had committed

the offense defined in that statutory provision.                            On 21 March

2013, the jury returned a verdict finding Defendant guilty of

first      degree      statutory     sexual      offense        stemming        from   the

accusations involving Tonya.               At the conclusion of the ensuing

sentencing        hearing,     the     trial       court     entered        a     judgment

sentencing        Defendant     to     a    term       of    300     to     369     months

imprisonment.          Defendant noted an appeal to this Court from the

trial court’s judgment.

                               II. Legal Analysis

      In    his     sole   challenge       to    the    trial      court’s      judgment,

Defendant contends that the indictment that had been returned

against him was fatally defective, a fact                          that    deprived the

trial court of jurisdiction over this case.                        More specifically,

Defendant contends that the language in which the indictment was
                                         -7-
couched,     when     coupled     with   the    allegations          delineating       the

statute that Defendant was accused of having violated, resulted

in   a     fundamental    ambiguity      in     the     indictment        in    question

sufficient     to    render     it   fatally    defective.           We   do    not   find

Defendant’s contention persuasive.

      The indictment returned against Defendant alleged that:

             on or about the date of offense shown above
             [Fall 2010] and in the county indicated
             above [Burke] the defendant named above
             [Randal     Eugene    Powell]    unlawfully,
             willfully, and feloniously did engage in a
             sexual offense with [Tonya], a child under
             the age of 13 years.     At the time of the
             offense the defendant was 26 years of age,
             and over the age of 18.

The indictment specified that Defendant was charged with having

committed the offense set out in N.C. Gen. Stat. § 14-27.4A.                               On

the other hand, the indictment alleged in both the caption and

in   the    headings     placed      before    each   count     set       out   in    that

charging instrument that Defendant was being charged with “FIRST

DEGREE SEX OFFENSE.”

      “A     valid     bill     of    indictment        is     essential         to    the

jurisdiction     of    the    Superior    Court    to    try    an    accused        for   a

felony and have the jury determine his guilt or innocence, ‘and

to give authority to the court to render a valid judgment.’”

State v. Moses, 154 N.C. App. 332, 334, 572 S.E.2d 223, 226

(2002) (quoting State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457,
                                          -8-
461   (1968)).        As    a   general    proposition,         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

subsequent prosecution for the same offense.”                        State v. Coker,

312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984).                        “An indictment

charging a statutory offense must allege all of the essential

elements of the offense.”           State v. Snyder, 343 N.C. 61, 65, 468

S.E.2d 221, 224 (1996); see also N.C. Gen. Stat. § 15A-924(a)(5)

(providing that a valid indictment must contain “[a] plain and

concise     factual        statement      in     each     count      which,    without

allegations of an evidentiary nature, asserts facts supporting

every     element     of    a   criminal        offense    and       the   defendant’s

commission thereof with sufficient precision clearly to apprise

the defendant or defendants of the conduct which is the subject

of the accusation”).            For that reason, an “[a]n indictment is

sufficient in form for all intents and purposes if it expresses

the   charge     in   a    plain,    intelligible         and     explicit    manner.”

Coker, 312 N.C. at 435, 323 S.E.2d at 346.                      A challenge to the

validity of an indictment is evaluated on appeal utilizing a de

novo standard of review.            State v. Marshall, 188 N.C. App. 748,
                                    -9-
656 S.E.2d 709, 715, disc. review denied, 362 N.C. 368, 661

S.E.2d 890 (2008).3

     According   to   N.C.   Gen.   Stat.   §   14-27.4A(a),   which    is

entitled “Sexual offense with a child; adult offender,” “[a]

person is guilty of sexual offense with a child 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.”              “A person

convicted of violating [N.C. Gen. Stat. § 14-27.4A(a)] is guilty

of a Class B1 felony and . . . in no case shall the person

receive an active punishment of less than 300 months.”                 N.C.

Gen. Stat. § 14-27.4A(b).     On the other hand, N.C. Gen. Stat. §
     3
      The general principles applicable to the validity of
indictments in rape and sexual offense cases have been altered,
to some extent, by the enactment of statutory provisions
authorizing the use of “short form” indictments in such cases.
E.g. N.C. Gen. Stat. § 15-144.1 (authorizing the use of “short
form” Indictments in rape cases) and N.C. Gen. Stat. § 15-144.2
(authorizing the use of “short form” indictments in sexual
offense cases).    Although the General Assembly has created a
number of additional criminal offenses involving rape and sexual
offense since the enactment of N.C. Gen. Stat. §§ 15-144.1 and
15-144.2, including, but not limited to, N.C. Gen. Stat. § 14-
27.4A, this Court has allowed the use of “short form”
indictments in charging the commission of violations of those
more recently enacted statutory provisions.       E.g., State v.
Daniels, 164 N.C. App. 558, 564-65, 596 S.E.2d 256, 260, disc.
review denied, 359 N.C. 71, 604 S.E.2d 918 (2004) (upholding the
use of a “short form” indictment to charge a violation of N.C.
Gen. Stat. § 14-27.7A, which makes vaginal intercourse or
another sexual act committed against a child aged 13, 14, or 15
a crime); State v. Bradley, 179 N.C. App. 551, 558-59, 634
S.E.2d 258, 263 (2006) (same).       As a result, as Defendant
implicitly concedes, the fact that a “short form” indictment was
utilized in this case has no bearing upon a proper resolution of
Defendant’s challenge to the trial court’s judgment.
                                       -10-
14-27.4(a)(1), which is entitled “First-degree sexual offense,”

provides that “[a] person is guilty of a sexual offense in the

first degree if the person engages in a sexual act” with “a

victim    who    is   a   child   under     the     age   of    13    years     and   the

defendant is at least 12 years old and is at least four years

older than the victim.”            “Any person who [violates N.C. Gen.

Stat. § 14-27.4(a)(1)] is guilty of a Class B1 felony.”                               N.C.

Gen. Stat. § 14-27.4(b).           The essential difference between the

offense delineated in N.C. Gen. Stat.                     §    14-27.4A(a) and the

offense delineated in N.C. Gen. Stat. § 14-27.4(a)(1) is that

proof of guilt of the offense specified in the former, but not

the latter, of these two statutory provisions requires proof

that the defendant was at least 18 years of age at the time of

the commission of the offense.

    Although an “indictment must[, as Defendant contends,] ‘so

plainly, intelligibly and explicitly set forth every essential

element of the offense as to leave no doubt in the mind of the

accused    and    the     court   as   to     the    offense         intended    to    be

charged,’” State v. Nicholson, 78 N.C. App. 398, 401, 337 S.E.2d

654, 656-57 (1985) (quoting State v. Coleman, 253 N.C. 799, 801,

117 S.E.2d 742, 744 (1961)), the extent to which any particular

indictment complies with this principle necessarily hinges on an

analysis of the text of the indictment rather than upon the
                                        -11-
caption     or     similar       components        of    the     relevant         charging

instrument.      As this Court held in State v. Mueller, “although

an indictment may cite to the wrong statute, when the body of

the indictment is sufficient to properly charge defendant with

an    offense,   the      indictment    remains         valid    and     the     incorrect

statutory reference does not constitute a fatal defect.”                                   184

N.C. App. 553, 574, 647 S.E.2d 440, 455 (citing State v. Jones,

110 N.C. App. 289, 290-91, 429 S.E.2d 410, 411-12 (1993), and

State v. Reavis, 19 N.C. App. 497, 498, 199 S.E.2d 139, 140

(1973)), cert. denied, 362 N.C. 91, 657 S.E.2d 24 (2007).                                 As a

result, any confusion arising from the caption, the statutory

citations, or other information contained in an indictment aside

from the language in which the offense allegedly committed by

the    defendant     is    described        is   insufficient          to    render        the

indictment in question fatally defective.

       A   careful   examination       of    the    language      contained          in    the

relevant     count   of    the    indictment        returned      against        Defendant

clearly indicates that the grand jury had charged Defendant with

violating N.C. Gen. Stat. § 14-27.4A(a) rather than N.C. Gen.

Stat. § 14-27.4(a)(1).            As we have previously noted, the count

in    question   alleges     that    Defendant          “did    engage      in   a   sexual

offense with [Tonya], a child under the age of 13 years.                             At the

time of the offense the defendant was 26 years of age, and over
                                      -12-
the age of 18.”          As Defendant concedes, the count in question

“asserts facts supporting every element” of the offense defined

in N.C. Gen. Stat. § 14-27.4A(a).            Although the language set out

in   the    relevant     count   of   the    indictment    returned      against

Defendant might suffice to allege the commission of an act made

punishable by N.C. Gen. Stat. § 14-27.4(a)(1), the allegation to

the effect that Defendant was “over the age of 18,” which is not

an element of the offense specified in N.C. Gen. Stat. § 14-

27.4(a)(1) and is an element of the offense specified in N.C.

Gen. Stat. § 14-27.4A(a), provides a clear indication that the

grand jury intended to charge Defendant with violating N.C. Gen.

Stat. § 14-27.4A(a) rather than N.C. Gen. Stat. § 14-27.4(a)(1).

Thus, as the trial court recognized, a careful review of the

language    in   which    the    relevant    count   of   the   indictment    is

couched clearly indicates that Defendant had ample notice that

he had been charged with committing the offense defined in N.C.

Gen. Stat. § 14-27.4A(a) rather than the offense defined in N.C.

Gen. Stat. § 14-27.4(a)(1).

     In seeking to         persuade us to reach a different result,

Defendant points to the fact that the indictment indicates that

Defendant    had   been    charged    with   committing    a    “First    Degree

Sexual Offense,” the fact that the language of the indictment

would have supported a conviction for committing the offense
                                        -13-
described in N.C. Gen. Stat. § 14-27.4(a)(1) as well as the

offense described in N.C. Gen. Stat. § 14-27.4A(a), and the fact

that Defendant and his trial counsel were initially confused

about the exact nature of the offense that he was charged with

committing.        We do not find any of these arguments persuasive.

According to the principle enunciated in Mueller, the fact that

the indictment might have labelled the offense that Defendant

was charged with committing erroneously does not invalidate the

indictment in question as long as the underlying offense is

clearly alleged in the language of the pertinent count set out

in that criminal pleading.            Similarly, given that an indictment

suffices to support a conviction for both a principal offense

and any lesser included offenses, see State v. Yelverton, 334

N.C.   532,    544,   434    S.E.2d   183,     190    (1993)   (citing    State    v.

Thomas, 325 N.C. 583, 591, 386 S.E.2d 555, 559 (1989)) (holding

that “[i]nvoluntary manslaughter and second-degree murder are

lesser-included       offenses    supported      by    an   indictment    charging

murder in the first degree”), the fact that an indictment could

be   read     to   charge    multiple    offenses       does   not   render      that

indictment     fatally      defective.         Moreover,    the   fact    that    the

allegations        contained     in   the      indictment      returned    against

Defendant, if established, would have supported the return of a

verdict convicting Defendant of violating N.C. Gen. Stat. § 14-
                                      -14-
27.4(a)(1) does not compel the conclusion that the indictment in

question is invalid given the inclusion of a reference to the

fact that Defendant was more than 18 years old, an allegation

that would have been unnecessary in the event that the grand

jury was attempting to charge Defendant with violating N.C. Gen.

Stat. § 14-27.4(a)(1) and was essential in the event that the

grand jury was attempting to charge Defendant with violating

N.C.    Gen.    Stat.    §    14-27.4A(a).          Finally,      the     fact    that

Defendant,     his    trial   counsel,    and,      perhaps,     others    may    have

understood that the indictment charged Defendant with violating

N.C. Gen. Stat. § 14-27.4(a)(1) rather than N.C. Gen. Stat. §

14-27.4A(a) does not render the indictment at issue here invalid

given   that    the     allegations      of   the    relevant      count     of   the

indictment clearly charged Defendant with violating N.C. Gen.

Stat. § 14-27.4A(a).          As a result, given our conclusion that the

indictment returned against Defendant clearly indicated that he

had been charged with violating N.C. Gen. Stat. § 14-27.4A(a)

and our conclusion that none of the arguments that Defendant has

advanced   in    an     effort   to   persuade       us   that    the     indictment

underlying the trial court’s judgment was fatally defective have

any merit, Defendant has not shown that he is entitled to relief

from the trial court’s judgment.

                                 III. Conclusion
                              -15-
    Thus, for the reasons set forth above, we conclude that

Defendant’s sole challenge to the trial court’s judgment lacks

merit.   As a result, the trial court’s judgment should, and

hereby does, remain undisturbed.

    NO ERROR.

    Judges MCGEE and STEELMAN concur.

    Report per Rule 30(e).
