               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-595

                                 Filed: 19 May 2020

Yadkin County No. 13 CRS 000060-62

STATE OF NORTH CAROLINA

              v.

MARC PETERSON OLDROYD, Defendant.


        Appeal by Defendant from order entered 9 March 2017 by Judge Michael D.

Duncan in Yadkin County Superior Court. Heard in the Court of Appeals 3 March

2020.


        Attorney General Joshua H. Stein, by Assistant Attorney General Sherri H.
        Lawrence, for the State.

        Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily
        Holmes Davis, for defendant-appellant.


        MURPHY, Judge.


        Indictments must state all essential and necessary elements of an offense in

order to bestow the trial court with jurisdiction.     Armed robbery is a statutory

enhancement of the common law offense of robbery, and under the common law

robbery is a crime against the person. Indictments for crimes against the person

must specifically state the name of the victim.       As a result, an indictment for

attempted armed robbery must name the victim, and failure to do so renders the

indictment fatally defective. Where an indictment for attempted armed robbery is
                                 STATE V. OLDROYD

                                  Opinion of the Court



fatally defective for failing to name any victim, we must vacate the judgment based

upon that indictment. Further, where part of a plea agreement is repudiated, the

entirety of the plea must be vacated.

      Here, pursuant to a plea agreement, Defendant entered a guilty plea to a

reduced charge of second-degree murder, attempted armed robbery, and conspiracy

to commit armed robbery for which he received a consolidated sentenced of 120 to 153

months. Defendant later claimed, in his Motion for Appropriate Relief, that the

indictment for attempted armed robbery was fatally defective in failing to name any

victim. The trial court entered an order denying this claim, which we now reverse.

Defendant’s indictment for attempted armed robbery must have named a victim and

was fatally defective in not doing so. We vacate the judgment for attempted armed

robbery based on this indictment. Additionally, because the judgment entered on

attempted armed robbery was pursuant to a plea agreement with the State, we vacate

the entirety of the underlying plea agreement and remand to the trial court for

further proceedings.

                                 BACKGROUND

      On 5 October 1996, Defendant, Marc Peterson Oldroyd, along with Brian

Whitaker (“Whitaker”) and Scott Sica (“Sica”), planned to rob a Huddle House in

Jonesville, using two weapons, a .9mm Beretta and a .357 Magnum. Whitaker and

Sica used a stolen truck for the robbery while Defendant was waiting in a separate



                                         -2-
                                  STATE V. OLDROYD

                                  Opinion of the Court



get-away vehicle owned by Whitaker. Whitaker and Sica drove the stolen truck to

the back entrance of the Huddle House and Sica, armed with a .9mm Beretta,

attempted to enter via the back entrance. This entrance was locked so Whitaker and

Sica left. At the time of Sica’s attempted entrance, Defendant was in an adjacent

parking lot where he could see Whitaker and Sica. Shortly after leaving, a police

officer stopped Whitaker and Sica’s vehicle on the highway, asked them to step out of

the car, and was given permission to search the vehicle.

      While Whitaker and Sica were pulled over, Defendant drove by them and

circled back around. When it became clear the police officer was going to find the

materials they planned to use for the robbery, Sica shot and killed the police officer.

Defendant again drove by the location and saw there were now four police cars where

Whitaker and Sica had been pulled over and Whitaker and Sica’s vehicle was no

longer there. Defendant then drove to a relative’s apartment where Whitaker and

Sica later joined him.

      Sixteen years later, Defendant was indicted for first-degree murder, attempted

armed robbery, and conspiracy to commit armed robbery.            The indictment for

attempted armed robbery with a dangerous weapon stated:

             The jurors for the State upon their oath present that on or
             about [5 October 1996] and in [Yadkin County] [Defendant]
             unlawfully, willfully and feloniously did attempt to steal,
             take and carry away another’s personal property, United
             States currency, from the person and presence of
             employees of the Huddle House located at 1538 NC


                                         -3-
                                  STATE V. OLDROYD

                                  Opinion of the Court



             Highway 67, Jonesville, North Carolina. [Defendant]
             committed this act by having in possession and with the
             use and threatened use of a firearm, a 9mm handgun,
             whereby the life [sic] of the Huddle House employees was
             [sic] threatened and endangered.

On 2 June 2014, pursuant to a plea agreement with the State, Defendant pleaded

guilty to a reduced charge of second-degree murder, attempted armed robbery, and

conspiracy to commit armed robbery. Pursuant to the plea agreement, all three

convictions were consolidated and Defendant was sentenced to an active term of 120

to 153 months.

      On 9 June 2015, Defendant filed a motion for appropriate relief (“MAR”) in

which he argued, inter alia, that the indictment for attempted armed robbery with a

dangerous weapon was “fatally flawed in that it does not name a victim.” Defendant

argued this flaw meant “the State failed to establish subject matter jurisdiction over

all counts. If the court has no jurisdiction over the subject matter of the action, the

judgment in the action is void.” On 9 March 2017, the trial court found “as a matter

of law there [were] no fatal defects in the indictments” and denied the MAR. On 26

November 2018, Defendant filed a petition for writ of certiorari requesting our review

of the trial court’s denial of his MAR. The State did not file a response. A panel of

this Court issued a writ of certiorari for the limited "purpose of reviewing the

conclusion [in the order denying Defendant’s MAR] that 'there are no fatal defects in

[Defendant’s] indictments' in the order of [the trial court] entered 9 March 2017."

                                     ANALYSIS

                                         -4-
                                  STATE V. OLDROYD

                                   Opinion of the Court



                               A. Standard of Review

      “When a trial court’s findings on a motion for appropriate relief are reviewed,

these findings [of fact] are binding if they are supported by competent evidence and

may be disturbed only upon a showing of manifest abuse of discretion. However, the

trial court’s conclusions [of law] are fully reviewable on appeal.” State v. Lutz, 177

N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006) (quoting State v. Wilkins, 131 N.C. App.

220, 223, 506 S.E.2d 274, 276 (1998)). We apply the law governing indictments to

Defendant’s indictment for attempted armed robbery “anew and freely substitute[]

[our] own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628,

632-33, 669 S.E.2d 290, 294 (2008) (internal marks omitted).

      Defendant argues the indictment for attempted armed robbery was defective

and the trial court had no jurisdiction to enter the plea for this offense. “[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. “The sufficiency of an indictment is a question of law reviewed de novo.” State

v. White, 372 N.C. 248, 250, 827 S.E.2d 80, 82 (2019).

                           B. Sufficiency of Indictments

      Our Supreme Court has clearly outlined the requirements for a sufficient

indictment:



                                          -5-
                                  STATE V. OLDROYD

                                  Opinion of the Court



             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. . . . While it is not
             the function of an indictment to bind the hands of the State
             with technical rules of pleading, . . . 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[.]

Id. at 250-251, 827 S.E.2d at 82 (internal citations and marks omitted).           The

consequences of an invalid indictment are equally clear; an invalid indictment

requires our Court to vacate any conviction based upon it. Id. at 250, 827 S.E.2d at

82.

      Defendant challenges the sufficiency of his indictment for attempted armed

robbery; thus, we must evaluate his indictment based on the essential and necessary

elements of this offense. The essential and necessary elements of armed robbery are

“(1) the unlawful taking or an attempt to take personal property from the person or

in the presence of another (2) by use or threatened use of a firearm or other dangerous

weapon (3) whereby the life of a person is endangered or threatened.”         State v.

Ingram, 160 N.C. App. 224, 226, 585 S.E.2d 253, 255 (2003), aff’d, 358 N.C. 147, 592

S.E.2d 687 (2004).

      Defendant’s indictment for attempted armed robbery contained the following

language:

             The jurors for the State upon their oath present that on or
             about [5 October 1996] and in [Yadkin County] [Defendant]

                                         -6-
                                  STATE V. OLDROYD

                                  Opinion of the Court



             unlawfully, willfully and feloniously did attempt to steal,
             take and carry away another’s personal property, United
             States currency, from the person and presence of
             employees of the Huddle House located at 1538 NC
             Highway 67, Jonesville, North Carolina. [Defendant]
             committed this act by having in possession and with the
             use and threatened use of a firearm, a 9mm handgun,
             whereby the life [sic] of the Huddle House employees was
             [sic] threatened and endangered.

(Emphasis added). The indictment alleges (1) an unlawful attempt to take money

from the person and presence of the Huddle House employees, (2) with the use or

threatened use of a .9mm handgun, (3) which threatened the lives of those employees

and at first blush appears to cover all essential elements of attempted armed robbery.

      Despite generally satisfying the essential elements, the issue in this case is the

amount of specificity required when identifying victims in an indictment for

attempted armed robbery in order to bestow jurisdiction on the trial court. Defendant

argues the indictment must have included the actual names of the victims. The State

disagrees and urges us to find the indictment reasonably identified the victims as

"employees of the Huddle House" given that the date and location are provided.

Based on binding precedent, we conclude the indictment was required to name a

victim.

      Attempted armed robbery is a crime against the person. N.C.G.S. § 14-87,

which outlines the elements of armed robbery, falls within the subchapter titled

“Offenses Against Property” and not “Offenses Against the Person.” N.C.G.S. § 14-



                                         -7-
                                  STATE V. OLDROYD

                                   Opinion of the Court



87 (2019). However, despite seemingly being categorized by the legislature as a crime

against property, we have held

             [N.C.G.S.] § 14-87 does not create a new crime, it merely
             increases the punishment which may be imposed for
             common law robbery where the perpetrator employs a
             weapon. . . . The focus of [N.C.G.S. § 14-87] then is not the
             creation of a new crime for commission of an offense with a
             firearm, but the punishment of a specific person who has
             committed a robbery which endangers a specific victim.

State v. Gibbons, 303 N.C. 484, 490, 279 S.E.2d 574, 578 (1981) (internal citations

omitted). Common law robbery jurisprudence applies to statutory armed robbery.

      “Common law robbery[] . . . is the felonious taking of money or goods of any

value from the person of another, or in his presence, against his will, by violence or

putting him in fear. . . . It is a crime against the person, effectuated by violence or

intimidation.”   State v. Mann, 317 N.C. 164, 172, 345 S.E.2d 365, 370 (1986)

(emphasis added) (internal citations omitted). Armed robbery is equally a crime

against the person, the only difference being the use of a firearm or other dangerous

weapon. Given that an attempted crime is indistinguishable from a completed crime

in terms of the subject of the crime, attempted armed robbery, armed robbery, and

common law robbery are all crimes against the person. Characterizing attempted

armed robbery as a crime against the person is consistent with our prior holdings on

indictments. See State v. Burroughs, 147 N.C. App. 693, 696, 556 S.E.2d 339, 342

(2001) (“In an indictment for robbery with firearms or other dangerous weapons

([N.C.G.S. § 14-87]), the gist of the offense is not the taking of personal property, but

                                          -8-
                                  STATE V. OLDROYD

                                   Opinion of the Court



a taking or attempted taking by force or putting in fear by the use of firearms or other

dangerous weapon. While an indictment for robbery (or attempted robbery) with a

dangerous weapon need not allege actual legal ownership of property, the indictment

must at least name a person who was in charge or in the presence of the property at

the time of the robbery, if not the actual, legal owner.") (internal citations and marks

omitted).

      The logic underlying the requirement that crimes against the person must

identify the victim by name in an indictment is longstanding; where the subject of a

crime is a person, indictments should name that person “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.” State v. Sturdivant, 304 N.C. 293, 311, 283

S.E.2d 719, 731 (1981) (citing State v. Gregory, 223 N.C. 415, 27 S.E. 2d 140 (1943)).

See also White, 372 N.C. at 250-251, 827 S.E.2d at 82.

      Our Supreme Court has held

             [i]t is of vital importance that the name of the person
             against whom the offense was directed be stated with
             exactitude. . . . The purpose of setting forth the name of
             the person who is the subject on which an offense is
             committed is to identify the particular fact or transaction
             on which the indictment is founded, so that the accused
             may have the benefit of one acquittal or conviction if
             accused a second time.




                                          -9-
                                 STATE V. OLDROYD

                                  Opinion of the Court



State v. Scott, 237 N.C. 432, 433-434, 75 S.E.2d 154, 155 (1953). Although Scott was

an assault case, both assault and armed robbery are crimes against the person and

identifying that person with exactitude applies equally.

      We have reaffirmed the importance of naming victims in indictments in the

context of other crimes against the person. In State v. McKoy, 196 N.C. App. 650, 675

S.E.2d 406 (2009), a rape and sex offense case governed by a statute on short form

indictments, we “implicitly acknowledge[d] that the indictment must name the victim

in some fashion [under the governing statute].” In re M.S., 199 N.C. App. 260, 266,

681 S.E.2d 441, 445 (2009). Although we are not bound by that statute in the case

before us, we have held that McKoy was consistent with Scott by “confirm[ing] that

the identity of the victim is still of critical importance in avoiding double jeopardy

issues.” Id.

      We are bound by the reasoning of our Supreme Court in Scott that clearly

requires that “the name of the person against whom the offense was directed be stated

with exactitude.” Scott, 237 N.C. at 433, 75 S.E.2d at 155. We cannot hold that

“employees of the Huddle House located at 1538 NC Highway 67, Jonesville, North

Carolina [on 5 October 1996]” was sufficient; specifically naming a victim of the

attempted armed robbery was required. By failing to do so, the indictment for

attempted armed robbery was fatally defective and the trial court had no jurisdiction

to enter judgment.



                                         - 10 -
                                  STATE V. OLDROYD

                                  Opinion of the Court



                                     C. Remedy

      Defendant “requests this Court to vacate his conviction for attempted armed

robbery.” However, our Supreme Court has held that a “[d]efendant cannot repudiate

[a plea agreement] in part without repudiating the whole.” State v. Rico, 218 N.C.

App. 109, 122, 720 S.E.2d 801, 809 (Steelman, J., dissenting), rev'd for reasons stated

in dissent, 366 N.C. 327, 734 S.E.2d 571 (2012); see also State v. Pless, 249 N.C. App.

668, 791 S.E.2d 869 (2016). Here, Defendant pleaded guilty to a reduced charge of

second-degree murder, attempted armed robbery, and conspiracy to commit armed

robbery with a consolidated sentence. Defendant was to be sentenced to 120 to 153

months on the second-degree murder with “[t]he remaining charges . . . to be

consolidated for judgment into the second[-]degree murder charge with no additional

time.” By successfully having us vacate the judgment for attempted armed robbery,

which was part of Defendant’s plea agreement, we are obliged to vacate the whole

plea agreement. The parties can agree to a new plea agreement below or the State

may seek a new indictment for attempted armed robbery and/or proceed to trial “on

the charges contained in the indictments.” State v. Green, 831 S.E.2d 611, 618 (N.C.

Ct. App. 2019); see also State v. Abbott, 217 N.C. App. 614, 619, 720 S.E.2d 437, 441

(2011).

                                   CONCLUSION




                                         - 11 -
                                    STATE V. OLDROYD

                                     Opinion of the Court



         We reverse the trial court’s order concluding that “there are no fatal defects

in the indictments,” as Defendant’s indictment for attempted armed robbery must

have named a victim to be valid. The indictment was fatally defective in not doing

so, and we must vacate the judgment based upon it. Since we are setting aside a

judgment that was entered pursuant to a plea agreement, we vacate the entirety of

the plea agreement and remand the entire case back to Yadkin County Superior

Court.

         REVERSED, VACATED, AND REMANDED.



         Judge STROUD concurs.

         Judge BRYANT dissents with a separate opinion.




                                            - 12 -
 No. 19-595 – State v. Oldroyd


      BRYANT, Judge, dissenting.


      The majority holds that the indictment charging defendant with attempted

armed robbery with a dangerous weapon requires the name of at least one victim of

the attempted robbery. Where this indictment refers to a specific group of people—

the “employees of the Huddle House” or “Huddle House employees”—I believe the

description of the victims is sufficient. Thus, I respectfully dissent.

      “A bill of indictment is legally sufficient if it charges the substance of the

offense and puts the defendant on notice that he will be called upon to defend against

proof of the manner and means by which the crime was perpetrated.” State v. Ingram,

160 N.C. App. 224, 225, 585 S.E.2d 253, 255 (2003) (citation omitted). As stated

above, common law robbery, statutory armed robbery, and attempted armed robbery

are crimes against the person. “Common law robbery[] . . . is the felonious taking of

money or goods of any value from the person of another, or in his presence, against

his will, by violence or putting him in fear.       It is a crime against the person,

effectuated by violence or intimidation.” State v. Mann, 317 N.C. 164, 172 345 S.E.2d

365, 370 (1986) (citations omitted).

      The majority, quoting our Supreme Court’s opinion in State v. Sturdivant, 304

N.C. 293, 283 S.E.2d 719 (1981) (reviewing first-degree rape and kidnapping

convictions), states that

             where the subject of a crime is a person, indictments should
             name that person “to identify clearly the crime being
             charged, thereby putting the accused on reasonable notice
                                   STATE V. OLDROYD

                                  BRYANT, J., dissenting



             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.”

Id. at 311, 283 S.E.2d at 731 (citing State v. Gregory, 223 N.C. 415, 27 S.E. 2d 140

(1943)); see also State v. Scott, 237 N.C. 432, 433–34, 75 S.E.2d 154, 155 (1953) (“The

purpose of setting forth the name of the person who is the subject on which an offense

is committed is to identify the particular fact or transaction on which the indictment

is founded, so that the accused may have the benefit of one acquittal or conviction if

accused a second time.” (citation omitted)).

      With respect to indictments charging a defendant with armed robbery, our

Supreme Court has reasoned that

             it is not necessary that ownership of the property be laid in
             a particular person in order to allege and prove armed
             robbery. The gist of the offense of robbery is the taking by
             force or putting in fear. An indictment for robbery will not
             fail if the description of the property is sufficient to show it
             to be the subject of robbery and negates the idea that the
             accused was taking his own property.

State v. Spillars, 280 N.C. 341, 345, 185 S.E.2d 881, 884 (1972) (citing State v. Rogers,

273 N.C. 208, 159 S.E.2d 525; State v. Guffey, 265 N.C. 331, 144 S.E.2d 14; State v.

Sawyer, 224 N.C. 61, 29 S.E.2d 34) (emphasis added). In State v. Burroughs, 147

N.C. App. 693, 556 S.E.2d 339 (2001), this Court held that

             [w]hile an indictment for robbery (or attempted robbery)
             with a dangerous weapon need not allege actual legal
             ownership of property, the indictment must at least name
             a person who was in charge or in the presence of the


                                            2
                                    STATE V. OLDROYD

                                 BRYANT, J., dissenting



             property at the time of the robbery, if not the actual, legal
             owner. If the defendant needs further information, he
             should move for a bill of particulars.

Id. at 696, 556 S.E.2d at 342 (emphasis added) (citation omitted). Later, in State v.

Thompson, 359 N.C. 77, 604 S.E.2d 850 (2004), addressing an argument challenging

the variance between the victim set forth in the indictment and the evidence

presented at trial, our Supreme Court provided the following:

             It is well established that an indictment for armed robbery
             need not allege that the property taken “be laid in a
             particular person.” State v. Spillars, 280 N.C. 341, 345, 185
             S.E.2d 881, 884 (1972). . . . “The gravamen of the offense
             is the endangering or threatening of human life by the use
             or threatened use of firearms or other dangerous weapons
             in the perpetration of or even in the attempt to perpetrate
             the crime of robbery.” [State v. Ballard, 280 N.C. 479, 485,
             186 S.E.2d 372, 375 (1972).] “An indictment for robbery will
             not fail if the description of the property is sufficient to
             show it to be the subject of robbery and negates the idea
             that the accused was taking his own property.” Spillars,
             280 N.C. at 345, 185 S.E.2d at 884; see also State v. Pratt,
             306 N.C. 673, 681, 295 S.E.2d 462, 467 (1982) (“As long as
             it can be shown defendant was not taking his own property,
             ownership need not be laid in a particular person to allege
             and prove robbery”); State v. Jackson, 306 N.C. 642, 650–
             51, 295 S.E.2d 383, 388 (1982) (“As long as the evidence
             shows the defendant was not taking his own property,
             ownership is irrelevant. . . . A taking from one having the
             care, custody or possession of the property is sufficient”).

Id. at 107–08, 604 S.E.2d at 872.

      Here, on 28 January 2013, defendant was indicted for the offense of attempted

armed robbery with a dangerous weapon. As stated,



                                           3
                                  STATE V. OLDROYD

                                 BRYANT, J., dissenting



             [t]he jurors for the State upon their oath present that on or
             about [5 October 1996] . . . in [Yadkin County] . . . the
             defendant . . . unlawfully, willfully and feloniously did

             attempt to steal, take and carry away another’s personal
             property, United States currency, from the person and
             presence of employees of the Huddle House located at 1538
             NC Highway 67, Jonesville, North Carolina. The defendant
             committed this act by having in possession and with the
             use and threatened use of a firearm, a 9mm handgun,
             whereby the life [sic] of the Huddle House employees was
             [sic] threatened and endangered.

      Defendant does not challenge that the description of his “attempt to steal, take

and carry away another’s personal property, United States currency, from the person

and presence of employees of the Huddle House” was sufficient to show the currency

to be the subject of robbery and negated the idea that defendant was taking his own

property. See id. Moreover, I would hold that the description of those persons whose

lives were threatened or endangered—the “employees of the Huddle House” or

“Huddle House employees”—was sufficient to put “defendant on notice that he will

be called upon to defend against proof of the manner and means by which the crime

was perpetrated.”    Ingram, 160 N.C. App. at 225, 585 S.E.2d at 255.         Should

defendant have needed further identification of the alleged victims (such as, in

preparation for trial), defendant could have moved for a bill of particulars. See

Burroughs, 147 N.C. App. at 696, 556 S.E.2d 342. But defendant rather than proceed

to trial, defendant entered into a plea agreement with the State.




                                           4
                                  STATE V. OLDROYD

                                 BRYANT, J., dissenting



      Along with the charged offense of attempted robbery with a dangerous weapon,

defendant pled guilty to charges of conspiracy to commit robbery with a dangerous

weapon and second-degree murder. Per the terms of defendant’s plea agreement

             Defendant is to be sentenced in the mitigated range on the
             Class B2 offense of second degree murder . . . . The
             remaining charges of attempted robbery with a dangerous
             weapon and conspiracy to commit robbery with a
             dangerous weapon are to be consolidated for judgment into
             the second degree murder charge with no additional time.

(emphasis added). On 2 June 2014, the trial court entered a consolidated judgment

in accordance with defendant’s plea agreement. Over a year later, defendant filed an

MAR in which he raised five grounds for setting aside his conviction, including a lack

of jurisdiction. Defendant asserted that

             [t]he True Bill of Indictment for Attempted Robbery
             with a Dangerous Weapon is fatally flawed, and a
             defective indictment is a prime example of a trial
             court’s lack of jurisdiction. State v. Ellis (2005) and
             State v. Wagner (2002). The indictment is flawed in
             that it fails to allege any person whose life might
             have been threatened or endangered. State v.
             Burroughs, (2001), State v. Moore 305 S.E.2d 542
             (1983), State v. Setzer 301 S.E.2d 107 (1983), State
             v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004).
             The indictment must allege the essential elements
             of the crime charged, as required by the North
             Carolina Constitution, Article I, Section 22, and N.C.
             Gen. Stat. 15-144, and the 5th and 14th
             Amendments to the U.S. Constitution, State v.
             Sturdivant, N.C. 283 S.E.2d 719 (1981), and State v.
             Crabtree 212 S.E.2d 103 (1975).




                                           5
                                     STATE V. OLDROYD

                                 BRYANT, J., dissenting



      On 9 March 2017, the trial court responded by denying defendant’s MAR. The

MAR hearing court stated that it “finds and concludes as a matter of law there are no

fatal defects in the indictments.”

      On 6 January 2018, defendant submitted a supplemental motion for

appropriate relief asserting that

             a defendant at any time after verdict may by a motion for
             appropriate relief, raise the ground that evidence is
             available which was unknown or unavailable to the
             defendant at the time of trial, which could not with due
             diligence have been discovered or made available at that
             time . . . and which has a direct and material bearing upon
             the defendant’s eligibility for the death penalty or the
             defendant’s guilt or innocence. A motion based upon such
             newly discovered evidence must be filed within a reasonable
             time of its discovery.

(emphasis added).     Defendant then proceeded to re-assert his challenge to the

elements of the indictment charging him with the offense of attempted robbery with

a dangerous weapon, some three-and-a-half years after entry of his guilty plea. In an

order entered 16 July 2018, the MAR hearing court denied defendant’s supplemental

motion for appropriate relief, in pertinent part, on the basis that the arguments had

previously been raised in the original MAR and ruled upon. Despite consistent

holdings of our Supreme Court that the property taken or attempted to be taken need

not “be laid in a particular person,” Spillars, 280 N.C. at 345, 185 S.E.2d at 884, and

even a variance between the individual named in such an indictment and the

evidence established is not fatal to the armed robbery charge, see Thompson, 359 N.C.


                                            6
                                   STATE V. OLDROYD

                                  BRYANT, J., dissenting



at 107–08, 604 S.E.2d at 872—now, before this Court on certiorari review of the MAR

orders, a majority of the panel holds that defendant’s 2013 indictment is invalid for

failure to name a victim. This, despite that the indictment identifies a specific group

of victims whom defendant could have sought the names of by a request for a bill of

particulars. See Burroughs, 147 N.C. App. at 696, 556 S.E.2d 342. The majority fails

to directly support its position with any prior holding of this Court or our Supreme

Court. The majority’s use of cases involving victims of rape and sexual assault are

inapposite. I am unaware of any cases determining that a trial court lacked

jurisdiction and reversibly erred in entering judgment pursuant to an indictment that

did not include the specific name of victims of an attempted armed robbery but where,

as here, the indictment identifies a specific group of employees of a particular

business as the victims. Under the majority’s reasoning which I think is misguided

and not legally supported, defendant’s 2014 judgment and commitment on the

charges of second-degree murder, attempted robbery with a dangerous weapon, and

conspiracy to commit robbery with a dangerous weapon consolidated in accordance

with his plea is to be reversed in its entirety.

      For the foregoing reasons, I would hold that defendant’s indictment for

attempted armed robbery with a dangerous weapon contains a sufficient description

of the victims, such as to not render the indictment fatally defective, and to support

the trial court’s jurisdiction to accept defendant’s guilty plea. Accordingly, I would



                                            7
                                STATE V. OLDROYD

                               BRYANT, J., dissenting



uphold the MAR hearing courts 9 March 2017 and 16 July 2018 orders denying

defendant’s MAR made on the basis of a fatally defective indictment.




                                         8
