                IN THE SUPREME COURT OF NORTH CAROLINA
                                      No. 23A18

                               Filed 21 December 2018

 STATE OF NORTH CAROLINA

               v.
 ANGELA MARIE RANKIN



      Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 809 S.E.2d 358 (2018), vacating defendant’s

conviction upon appeal from a judgment entered on 6 July 2016 by Judge Michael D.

Duncan in Superior Court, Guilford County. Heard in the Supreme Court on 27

August 2018.


      Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney
      General, for the State-appellant.

      Sarah Holladay for defendant-appellee.


      BEASLEY, Justice.

      In this case we consider whether the Court of Appeals erred in vacating

defendant’s conviction under N.C.G.S § 14-399(a) for felony littering upon concluding

that the indictment failed to allege an essential element of the statutory crime and

was fatally defective, thus depriving the trial court of jurisdiction over the accused.

Because we conclude that the indictment was facially invalid, we affirm the decision

of the Court of Appeals.
                                   STATE V. RANKIN

                                  Opinion of the Court



      On 27 April 2014, defendant Angela Rankin located a large metal tank

containing fuel oil near a residential driveway on North Elam Avenue in Greensboro,

North Carolina. Defendant wanted to take the tank to sell it as scrap metal. When

she tried to lift the tank into her vehicle, she discovered that the oil inside made it

too heavy to maneuver. So that the tank “wouldn’t be as heavy,” defendant drained

the fuel oil onto the ground and then left the scene with the metal tank. The tank

was reported stolen to the City of Greensboro Police Department, and an

investigation revealed that defendant had committed the theft.

      On 21 July 2014, defendant was indicted for felony littering of hazardous

waste, misdemeanor larceny, and misdemeanor conspiracy to commit larceny. On 5

July 2016, a jury trial was held in Superior Court, Guilford County. Defendant moved

to dismiss all charges at the close of the evidence, and the trial court dismissed the

conspiracy charge. The jury found defendant guilty of felony littering of hazardous

waste and not guilty of misdemeanor larceny. The trial court sentenced defendant to

five to fifteen months of imprisonment, suspended the sentence, and placed her on

supervised probation for eighteen months.

      Defendant appealed her conviction to the Court of Appeals, arguing that the

trial court lacked jurisdiction because the indictment failed to allege an essential

element of the crime of felony littering of hazardous waste. The Court of Appeals

majority agreed and vacated the conviction. State v. Rankin, ___ N.C. App. ___, ___,

809 S.E.2d 358, 365 (2018). One judge dissented, asserting that the indictment was


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                                   Opinion of the Court



facially valid because the statutory language omitted from the indictment is an

affirmative defense, not an essential element of the crime. Id. at ___, 809 S.E.2d at

368 (Berger, J., dissenting). The State filed a notice of appeal with this Court based

on the issues raised in the dissenting opinion.

      “[A] valid bill of indictment is essential to the jurisdiction of the trial court to

try an accused for a felony.” State v. Campbell, 368 N.C. 83, 86, 772 S.E.2d 440, 443

(2015) (quoting State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981)).

A valid indictment, among other things, serves to “identify the offense” being charged

with certainty, to “enable the accused to prepare for trial,” and to “enable the court,

upon conviction, to pronounce the sentence.” State v. Saults, 294 N.C. 722, 726, 242

S.E.2d 801, 805 (1978).

      To be sufficient, an indictment must include, inter alia, “[a] plain and concise

factual statement” asserting “facts supporting every element of a criminal offense and

the defendant’s commission thereof.”        N.C.G.S. § 15A-924(a)(5) (2017).       If the

indictment fails to state an essential element of the offense, any resulting conviction

must be vacated. See, e.g., Campbell, 368 N.C. at 86, 772 S.E.2d at 443; see also State

v. Wagner, 356 N.C. 599, 601, 572 S.E.2d 777, 779 (2002) (per curiam). The law

disfavors application of rigid and technical rules to indictments; so long as an

indictment adequately expresses the charge against the defendant, it will not be

quashed. See Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731. For example, in State

v. Mostafavi the defendant argued that the indictment charging him with obtaining


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                                  Opinion of the Court



property by false pretenses omitted an essential element of the crime because it failed

to allege the precise amount of money the defendant received when he pawned the

property obtained. 370 N.C. 681, 683, 811 S.E.2d 138, 140 (2018). This Court held

that the indictment was facially valid because it clearly identified “the conduct which

[was] the subject of the accusation” by alleging that the defendant received United

States currency by pawning stolen property as if it were his own. Id. at 687, 811

S.E.2d at 142 (quoting N.C.G.S. § 15A-924(a)(5) (2017)).

      But an indictment will be quashed “when an indispensable allegation of the

charge is omitted.” State v. Russell, 282 N.C. 240, 245, 192 S.E.2d 294, 297 (1972)

(citations omitted). For example, in State v. Murrell the defendant challenged an

indictment charging him with robbery with a dangerous weapon, arguing that an

essential element of the crime—presence of a dangerous weapon—was not alleged.

370 N.C. 187, 190-91, 804 S.E.2d 504, 506-07 (2017). We noted that “the possession,

use, or threatened use of firearms, or other dangerous weapon, implement, or means”

was an essential element of the offense. Id. at 194, 804 S.E.2d at 509 (footnote

omitted). Furthermore, this Court found the indictment facially invalid, observing

that “an allegation that it ‘reasonably appear[ed] . . . that a dangerous weapon was

in the defendant’s possession’ is simply not equivalent to an allegation that defendant

actually possessed a weapon.” Id. at 196, 804 S.E.2d at 510 (alterations in original).

      Likewise, when an indictment charges a defendant with a statutory offense,

the document must allege all the essential elements of the offense. Id. at 193, 804


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                                   Opinion of the Court



S.E.2d at 508 (citations omitted). If the words of a statute do not “set forth all the

essential elements of the specified act intended to be punished, such elements must

be charged in the bill [of indictment].” State v. Greer, 238 N.C. 325, 329, 77 S.E.2d

917, 920 (1953) (quoting State v. Cole, 202 N.C. 592, 597, 163 S.E. 594, 597 (1932));

see also, e.g., State v. Hunter, 299 N.C. 29, 41, 261 S.E.2d 189, 197 (1980) (stating that

although an indictment need not track the language of the statute completely, an

indictment charging the violation of a statute in general terms only can be insufficient

to confer jurisdiction on the trial court); State v. Cook, 272 N.C. 728, 158 S.E.2d 820

(1968) (holding that the language of a warrant for driving while license revoked,

which referred to a statutory provision with intent to charge the offense therein, was

facially invalid for failing to allege an essential element: that the defendant drove on

a public highway).

      The indictment in this case charged that defendant:

             unlawfully, willfully and feloniously did intentionally and
             recklessly spill and dispose of litter on property not owned
             by the defendant, the property owned and controlled by the
             City of Greensboro and not into a litter receptacle as
             defined in General Statute 14-399(A)(2).           The litter
             discarded was hazardous waste.

      The statute at issue here states:

                    (a) No person, including any firm, organization,
             private corporation, or governing body, agents or
             employees of any municipal corporation shall intentionally
             or recklessly throw, scatter, spill or place or intentionally
             or recklessly cause to be blown, scattered, spilled, thrown
             or placed or otherwise dispose of any litter upon any public


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                                  Opinion of the Court



             property or private property not owned by the person
             within this State or in the waters of this State including
             any public highway, public park, lake, river, ocean, beach,
             campground, forestland, recreational area, trailer park,
             highway, road, street or alley except:

                   (1) When the property is designated by the State or
                   political subdivision thereof for the disposal of
                   garbage and refuse, and the person is authorized to
                   use the property for this purpose; or

                   (2) Into a litter receptacle in a manner that the litter
                   will be prevented from being carried away or
                   deposited by the elements upon any part of the
                   private or public property or waters.

N.C.G.S § 14-399(a) (2017 & Supp. 2018). The indictment indisputably failed to

allege facts satisfying subdivision (a)(1). The ultimate question before us is whether

such facts are required; that is, whether subdivision (a)(1) sets out an affirmative

defense or an essential element of felony littering. The former need not be alleged in

a valid indictment, while the latter must be. Because the language of the statute

does not explicitly resolve this issue, we turn to the well-established tenets of

statutory interpretation.

      The goal of statutory interpretation is to determine the meaning that the

legislature intended upon the statute’s enactment. See State v. Beck, 359 N.C. 611,

614, 614 S.E.2d 274, 276-77 (2005) (citations omitted). Therefore, we must construe

the statute while mindful of the criminal conduct that the legislature intends to

prohibit. In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978). “The intent of the General

Assembly may be found first from the plain language of the statute, then from the


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                                  Opinion of the Court



legislative history, the spirit of the act and what the act seeks to accomplish.” State

v. Langley, ___ N.C. ___, ___, 817 S.E.2d 191, 196 (2018) (quoting Midrex Techs., Inc.

v. N.C. Dep’t of Revenue, 369 N.C. 250, 258, 794 S.E.2d 785, 792 (2016)). “The Court

will not adopt an interpretation which result[s] in injustice when the statute may

reasonably be otherwise consistently construed with the intent of the act.”

Nationwide Mut. Ins. Co. v. Mabe, 342 N.C. 482, 494, 467 S.E.2d 34, 41 (1996)

(quoting Sutton v. Aetna Cas. & Sur. Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763

(1989)).

      When the General Assembly uses an “unambiguous word without providing an

explicit statutory definition, that word will be accorded its plain meaning.” Fidelity

Bank v. N.C. Dep’t of Revenue, 370 N.C. 10, 19, 803 S.E.2d 142, 149 (2017) (citations

omitted). However, if a literal interpretation of a word or phrase’s plain meaning will

lead to “absurd results, or contravene the manifest purpose of the Legislature, as

otherwise expressed, the reason and purpose of the law shall control.” Beck, 359 N.C.

at 614, 614 S.E.2d at 277 (quoting Mazda Motors of Am., Inc. v. Sw. Motors, Inc., 296

N.C. 357, 361, 250 S.E.2d 250, 253 (1979)). “Parts of the same statute dealing with

the same subject matter must be considered and interpreted as a whole.” State ex rel.

Comm’r of Ins. v. N.C. Auto. Rate Admin. Office, 294 N.C. 60, 66, 241 S.E.2d 324, 328

(1978) (citations omitted).

      An indictment need not include affirmative defenses to statutory crimes in

order to be sufficient. See Sturdivant, 304 N.C. at 310, 283 S.E.2d at 731 (“[A]n


                                          -7-
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                                   Opinion of the Court



indictment need not negate a defense to the stated crime; rather, it is left to the

defendant to show his defenses at trial.”). The characteristics of an affirmative

defense are further defined in State v. Sanders, in which we stated that “[w]hen [a]

defendant relies upon some independent, distinct, substantive matter of exemption,

immunity or defense, beyond the essentials of the legal definition of the offense itself,

the onus of proof as to such matter is upon the defendant.” 280 N.C. 81, 85, 185

S.E.2d 158, 161 (1971) (emphasis added) (quoting State v. Johnson, 229 N.C. 701,

706, 51 S.E.2d 186, 190 (1949)). Furthermore, “[a]llegations beyond the essential

elements of the crime sought to be charged are irrelevant and may be treated as

surplusage” and thus should not be included in an indictment. State v. Birdsong, 325

N.C. 418, 422, 384 S.E.2d 5, 7 (1989) (quoting State v. Taylor, 280 N.C. 273, 276, 185

S.E.2d 677, 680 (1972)).

      Whether an exception to a statutorily defined crime is an essential element of

that crime or an affirmative defense to it depends on whether the statement of the

offense is complete and definite without inclusion of the language at issue. See State

v. Dobbins, 277 N.C. 484, 502, 178 S.E.2d 449, 460 (1971) (citations omitted). The

criminal conduct that the statute seeks to prohibit here is the depositing of litter in

unauthorized locations by unauthorized persons. N.C.G.S. § 14-399(a) (prohibiting

persons and entities from intentionally or recklessly throwing, scattering, or spilling

any litter upon any public or private property within this state).        Therefore, in

addition to the required language of subdivision (a), the offense of littering is not


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                                    Opinion of the Court



complete unless it excludes authorized locations and persons from its definition. See

Dobbins, 277 N.C. at 502, 178 S.E.2d at 460. Subdivision (a)(1) does just that.

Therefore, we hold that to be valid, the indictment charging felony littering must

allege that the accused is an unauthorized person who deposited refuse on property

not designated for such activity.

      In the dissent’s view, this Court should categorize subdivision (a)(1) as either

an exception or qualification without regard to whether (a)(1) is a part of the complete

legal definition of littering. This is because, according to the dissent, N.C.G.S. § 14-

399(a) “creates criminal liability to redress the societal ill of littering.” Using this

standard, the dissent concludes that subsection (a) of N.C.G.S. § 14-399 contains a

complete and definite description of littering, and the only matter left to decide is

what kind of proviso subdivision (a)(1) is as these are described in State v. Norman,

13 N.C. (2 Dev.) 222, 226 (1829). Norman described two kinds of provisos, one “which

withdraws the case provided for from the operation of the act” and “the other adding

a qualification, whereby a case is brought within that operation.” Id. at 226.

      This view is problematic for two reasons. First, it contradicts well-established

binding precedent from this Court holding that the complete and definite description

of a crime is one in which each essential element necessary to constitute that crime

is included. Johnson, 229 N.C. at 706, 51 S.E.2d at 190 (observing that the State

carries the burden of establishing the “essentials of the legal definition of the offense

itself”); State v. Edwards, 190 N.C. 322, 324, 130 S.E. 10, 11 (1925) (“[I]n indictments


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                                   Opinion of the Court



on a statute the essential words descriptive of the offense or their just equivalent

must be given . . . ” (quoting State v. Mooney, 173 N.C. 798, 800, 92 S.E. 610, 611

(1917))); see also N.C.G.S. § 15A-924(a)(5) (“A criminal pleading must contain . . . facts

supporting every element of a criminal offense.”). Furthermore, framing the issue in

this narrow manner—whether subdivision (a)(1) is an exception or qualification—

impermissibly limits the scope of the statutory interpretation and construction in

which this Court was prompted to engage by the Court of Appeals’ dissent: whether

(a)(1) is an essential element or an exception to the crime of littering.

      Even if we considered subdivision (a)(1) to be a proviso, that would not end our

inquiry into whether it is an essential element of littering. In State v. Connor we

observed that a proviso can be so “mixed up with the description of the offense” that

it comprises an essential part of the statement of the crime. 142 N.C. 700, 704, 55

S.E. 787, 789 (1906). We hold that subdivision (a)(1) is so intertwined with the

description of the offense of littering that it forms an essential element of the crime.

As discussed further below, to hold otherwise would result in an absurdity. Likewise,

concluding that subdivision (a)(1) is an exception, meaning it “withdraws the case

provided for from the operation of the act,” Norman, 13 N.C. (2 Dev) at 226, would

necessitate the conclusion that the authorized persons described in (a)(1) are

engaging in a form of “authorized littering” which by statutory definition is legally

impossible because littering is the depositing of litter in unauthorized locations by

unauthorized persons. Subdivision (a)(1) is a part of the definition of littering in that


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                                   Opinion of the Court



it describes the opposite of littering:     authorized persons depositing refuse in

authorized locations.    In sum, subsection (a) describes what littering is, while

subdivision (a)(1) describes what it is not. Finally, subdivision (a)(1) could not be a

qualification, because it does not bring a case within the operation of the act.

      Additionally, in Connor, immediately after stating the test for when a proviso

may be omitted from an indictment, this Court emphasized:

                    The test here suggested, however, is not universally
             sufficient, and a careful examination of the principle will
             disclose that the rule and its application depends not so
             much on the placing of the qualifying words, or whether
             they are preceded by the terms, “provided” or “except;” but
             rather on the nature, meaning and purpose of the words
             themselves.
                    And if these words, though in the form of a proviso
             or an exception, are in fact, and by correct interpretation,
             but a part of the definition and description of the offense,
             they must be negatived in the bill of indictment.
                    In such case, this is necessary, in order to make a
             complete statement of the crime for which defendant is
             prosecuted.


142 N.C. at 702, 55 S.E. at 788. In other words, the Court’s primary task is to

interpret the statutory language—its nature, meaning and purpose—to decide

whether subdivision (a)(1) is an essential element of the crime of littering.       No

formulaic rule statement can replace the holistic inquiry required by statutory

interpretation and construction.

      The Court of Appeals dissent proffers that the language of the statute

preceding the word “except” is the complete legal definition of the crime because that


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                                    Opinion of the Court



language essentially encompasses the literal meaning of the phrase “to litter”—“to

scatter about carelessly”—and criminalizes that act while withdrawing persons

authorized by subdivision (a)(1) from criminal liability for littering. Rankin, ___ N.C.

App. at ___, 809 S.E.2d at 366 (quoting Litter, Webster’s New World College Dictionary

(5th ed. 2014)). Nonetheless, the plain meaning of a phrase will apply only if an

unambiguous term is actually used and not defined in the statute. See Fidelity Bank,

370 N.C. at 19, 803 S.E.2d at 149 ( “In the event that the General Assembly uses an

unambiguous word without providing an explicit statutory definition, that word will

be accorded its plain meaning.” (emphasis added)) “To litter” does not appear in this

statute, and while the language of the statute may encompass the literal meaning of

the phrase “to litter,” the legal definition extends beyond that phrase as evidenced by

the surrounding language.1 See N.C.G.S. § 14-399(a) (prohibiting intentional or


      1  While the phrase ‘to litter’ does not appear in this statute, the word ‘litter’ is
statutorily defined:

             any garbage, rubbish, trash, refuse, can, bottle, box, container,
             wrapper, paper, paper product, tire, appliance, mechanical
             equipment or part, building or construction material, tool,
             machinery, wood, motor vehicle or motor vehicle part, vessel,
             aircraft, farm machinery or equipment, sludge from a waste
             treatment facility, water supply treatment plant, or air pollution
             control facility, dead animal, or discarded material in any form
             resulting from domestic, industrial, commercial, mining,
             agricultural, or governmental operations. While being used for
             or distributed in accordance with their intended uses, “litter”
             does not include political pamphlets, handbills, religious tracts,
             newspapers, and other similar printed materials the unsolicited
             distribution of which is protected by the Constitution of the
             United States or the Constitution of North Carolina.


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                                       Opinion of the Court



reckless throwing, spilling, and placing, in addition to carelessly scattering, litter);

see also N.C. Auto. Rate Admin. Office, 294 N.C. at 66, 241 S.E.2d at 328 (instructing

that related parts of a statute must be interpreted as a whole).

       Moreover, N.C.G.S. § 14-399(a) must be read to incorporate subdivision (a)(1)

as part of the legal definition of the crime to prevent absurd results. As noted by the

Court of Appeals majority, “a trash collector disposing of waste in a city dump could

be charged with littering and then have the burden of showing that his actions fell

within an ‘exception’ to the littering statute.” Rankin, ___ N.C. App. at ___, 809

S.E.2d at 364-65 (majority opinion). If the General Assembly wanted to enable a

trash collector to be criminally charged for doing his or her job and forced to

demonstrate his or her innocence by proving an affirmative defense at trial, it could

have indicated as much in the statute.2 Construing this statute accordingly and

applying widely accepted principles of statutory interpretation, while avoiding




N.C.G.S. § 14-399(i)(4) (2017 & Supp. 2018).
       2 The Court of Appeals also discussed State v. Hinkle, 189 N.C. App. 762, 659 S.E.2d

34 (2008), wherein the Court of Appeals held that subdivision (a)(2) of N.C.G.S. § 14-399(a)
constituted an essential element of littering. In that case the Court of Appeals applied the
absurdity doctrine, opining that “[w]ithout the ‘except . . . [i]nto a litter receptacle’ language,
placing a broken rubber band into a trash can at our Court would be littering.” Hinkle, 189
N.C. App. at 769, 659 S.E.2d at 38 (second and third alterations in original). It is significant
that in the ten years since Hinkle was decided, the legislature has not revised N.C.G.S. § 14-
399 to contradict this holding. In Rankin, the Court of Appeals concluded that “[b]ecause
subsections (a)(1) and (a)(2) serve identical purposes in this statute, it would be illogical to
suggest that one is an essential element but the other is not.” Rankin, ___ N.C. App. at ___,
809 S.E.2d at 363.


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                                      Opinion of the Court



absurd results, compels the conclusion that the crime of littering has not occurred at

all if the actor is a waste management professional disposing of garbage at a landfill.3

See State v. Jones, 367 N.C. 299, 306, 758 S.E.2d 345, 350 (2014) (applying the tenet

that if “a literal interpretation of the language of a statute will lead to absurd

results . . . the reason and purpose of the law shall control and the strict letter thereof

shall be disregarded” (quoting Beck, 359 N.C. at 614, 614 S.E.2d at 277)).

       The dissent opines that the absurdity doctrine is erroneously applied in our

analysis here because it “applies to the act of interpreting a statute—to determining

the statute’s meaning” whereas this dispute “is about how to classify the proviso in

[subdivision] (a)(1), not how to interpret it.”        However, as previously discussed,

classifying the language in subdivision (a)(1) as an essential element or an exception

to the crime of littering is a matter of statutory interpretation. The role of the

absurdity doctrine in this process is to provide a means to test the implications of a

proposed interpretation of the statute against legislative intent. We must consider

the possible results of our interpretation to determine whether that interpretation


       3 By way of analogy, the crime of assault on a female requires that the victim be a
female and the accused a male who is at least eighteen years of age. N.C.G.S. § 14-33(c)(2)
(2017 & Supp. 2018); State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988) (“The
elements of assault on a female are (1) an assault, (2) upon a female person, (3) by a male
person (4) who is at least eighteen years old.”). Therefore, the crime has not occurred if the
victim is not a female, or if the accused is under eighteen or is not a male. Likewise here, the
crime of littering has not occurred if the accused is a sanitation worker disposing of waste at
an authorized location. Just as it would be absurd to assert that a female charged with
assault on a female must plead her gender as an affirmative defensive, it is equally unfair to
burden a sanitation worker with the task of establishing his or her authorization to dispose
of waste.

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aligns with the intent of the legislature as evidenced by the history, context, goals,

and spirit of the law.

       We applied the absurdity doctrine thusly in State v. Jones and concluded that

a strict construction of the statute would have allowed “individuals to escape criminal

liability [for identity theft] simply by stating or signing a name that differ[ed] from

the cardholder’s name,” a result we determined could not have been within the intent

of the legislature when adopting the statute criminalizing identity fraud. 367 N.C.

at 306, 758 S.E.2d at 350 (citing Beck, 359 N.C. at 614, 614 S.E.2d at 277). Likewise,

if we interpret subdivision (a)(1) to be an exception to, rather than an essential

element of, littering, an absurdity will result. Exposing a faulty interpretation of the

statute, far from distorting the issue, is a necessary analytical exercise in resolving

this case.

       We conclude that subdivision (a)(1), which requires that the accused be an

unauthorized person depositing refuse on land not designated by the State for such

use, is an essential element of the crime of felony littering, however, we acknowledge

the legislature’s power to determine otherwise.4 The State has conceded that the


       4  It is notable that the General Assembly has, in other circumstances, expressly
treated certain facts as constituting affirmative defenses. See, e.g., N.C.G.S. § 15A-905(c)
(2017) (describing the procedure required to give notice when the accused anticipates raising
any one of various affirmative defenses: alibi, duress, entrapment, insanity, mental infirmity,
diminished capacity, self-defense, accident, automatism, involuntary intoxication, or
voluntary intoxication). In the context of criminal littering statutes, several legislatures in
other states have created clear distinctions between an affirmative defense to the crime of
littering and essential elements of the crime. See, e.g., Cal. Penal Code § 374(a) (West 2018)


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                                       Opinion of the Court



indictment upon which defendant was convicted failed to allege the portion of the

definition of littering contained in subdivision (a)(1). To sufficiently give notice to a

defendant and allow her to prepare a defense, an indictment must include “[a] plain

and concise factual statement” that “asserts facts supporting every element of a

criminal offense and the defendant’s commission thereof.” N.C.G.S. § 15A-924(a)(5).

The indictment in this case failed to allege each element of the crime of littering,

thereby depriving defendant of sufficient notice. Because the indictment failed to

sufficiently allege all indispensable, essential elements of the offense, it was facially

invalid and the trial court had no jurisdiction to enter a conviction on the charge

against defendant. Accordingly, we affirm the Court of Appeals’ decision to vacate

defendant’s conviction for felony littering of hazardous waste.

       A significant portion of the dissenting opinion is devoted to the idea that the

Criminal Procedure Act that took effect in July 1975 abrogated the common law rule

that a defective indictment deprives a criminal court of jurisdiction. Not only is

discussion of this issue outside the scope of review applicable to this case, but

statutory interpretation reveals that the legislature intentionally left the common


(“Littering means the willful or negligent throwing, dropping, placing, depositing, or
sweeping, or causing any such acts, of any waste matter on land or water in other than
appropriate storage containers or areas designated for such purposes.” (emphasis added));
Colo. Rev. Stat. Ann. § 18-4-511(2)(a) (West 2018) (“It shall be an affirmative defense [to
littering] that: Such property is an area designated by law for the disposal of such material
and the person is authorized by the proper public authority to so use the property . . . . ”); Fla.
Stat. § 403.413(6)(h) (2018) (“[T]he state does not have the burden of proving that the person
did not have the right or authority to dump the litter. The defendant has the burden of
proving that he or she had authority to dump the litter . . . ”).

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law remedy for invalid indictments intact when it enacted comprehensive revisions

to the Criminal Procedure Act.

       This case is before this Court based on a dissent in the Court of Appeals. See

N.C.G.S. § 7A-30(2) (2017). Thus, the scope of review is “limited to those questions

on which there was division in the intermediate appellate court,” C.C. Walker

Grading & Hauling, Inc. v. S.R.F. Mgmt. Corp., 311 N.C. 170, 175, 316 S.E.2d 298,

301 (1984) (discussing N.C. R. App. P. 16 (1984)), and this Court’s review is “properly

limited to the single issue addressed in the [Court of Appeals] dissent,” Blumenthal

v. Lynch, 315 N.C. 571, 577, 340 S.E.2d 358, 361 (1986). In their briefs to this Court,

respectively, neither party asked this Court to address the remedy flowing from an

invalid indictment, and had they attempted to do so, their effort would likely have

been rejected. Id. at 577-78, 340 S.E.2d at 361-62 (“[W]e strongly disapprove of and

discourage attempts by appellate counsel to bring additional issues before this Court

without its appropriate order allowing counsel’s motion to allow review of additional

issues.”).   Absent exceptional circumstances,5          it is vital that we adhere to the

procedural rules as they are enforced against litigants by this Court. Moreover,

deciding this issue in the procedural context of this case deprives both parties of their



       5 “Where “issues of importance which are frequently presented to state agencies and
the courts require a decision in the public interest,” this Court will invoke Rule 2 of the North
Carolina Rules of Appellate Procedure to address those issues. Blumenthal, 315 N.C. at 578,
340 S.E.2d at 362. However, whether the Criminal Procedure Act abrogated the common law
remedy for invalid indictments is not a question frequently presented to state agencies or
courts, so the invocation of Rule 2 would be inappropriate in this case.

                                              -17-
                                   STATE V. RANKIN

                                   Opinion of the Court



opportunity to be heard with respect to this issue. Nonetheless, given that the dissent

here has discussed the effect of the Criminal Procedure Act on the common law

remedy for invalid indictments, we will briefly address the issue.

      In the absence of a contrary decision by the General Assembly, the common

law remains in effect in North Carolina. N.C.G.S. § 4-1. Whether a particular statute

supplants a common law remedy is a question of statutory interpretation. See, e.g.,

Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 54-56, 213 S.E.2d 563, 568-69 (1975)

(applying tenets of statutory interpretation to determine whether N.C.G.S. § 31A-15

supplanted the common law principle prohibiting a person from profiting from his or

her wrongdoing); Orange County. v. Heath, 282 N.C. 292, 296-97, 192 S.E.2d 308,

310-11 (1972) (using principles of statutory interpretation to determine whether

N.C.G.S. § 1A-1, Rule 65 abrogated the common law rule of governmental immunity

for municipalities).   Therefore, the previously stated rules that guide statutory

interpretation are applicable, as well as rules relating to statutory abrogation of

common law.

      In determining legislative intent, we must consider the history of the statute

and the reason for its enactment. See Black v. Littlejohn, 312 N.C. 626, 630, 325

S.E.2d 469, 473 (1985). “It is always presumed that the legislature acted with care

and deliberation and with full knowledge of prior and existing law.” State v. Benton,

276 N.C. 641, 658, 174 S.E.2d 793, 804 (1970). Furthermore, in the quest to interpret




                                          -18-
                                  STATE V. RANKIN

                                  Opinion of the Court



a statute, courts will not presume that the legislature intended to repeal a law by

implication. Id. at 658, 174 S.E.2d at 604.

       The dissent explores the history and context behind the enactment of the

Criminal Procedure Act, including an in-depth report prepared for the legislature by

a special committee proceeding adoption of the Act. Legislative Program and Report

to the General Assembly of North Carolina by the Criminal Code Commission (1973).

The documented history of the purpose and function of indictments along with the

legislature’s efforts to assess the impact of the previous enactment of the criminal

code provide ample evidence that the legislature was well aware of the common law

remedy for invalid indictments. Still, there are no provisions that contradict or

abrogate this remedy. The absence of such provisions demonstrates that the General

Assembly did not intend to change the common law discussed in the dissent.

      The provisions related to indictments in the Act, codified in the North Carolina

General Statutes at chapter 15A, evidence the legislature’s intent to preserve the

common law rule that an indictment is required to invoke the court’s jurisdiction in

felony cases. Article 32 mandates that for felony charges “prosecutions originating

in the superior court must be upon pleadings. ” N.C.G.S. § 15A-642(a) (emphasis

added), and that the appropriate pleading for a felony charge is an indictment.

N.C.G.S. § 15A-923(a). Further, the remedy for a facially invalid indictment is thus:

“Upon motion of a defendant under G.S. 15A-952(b) the court must dismiss the




                                         -19-
                                    STATE V. RANKIN

                                    Opinion of the Court



charges contained in a pleading which fails to charge the defendant with a crime 6 in

a manner required by subsection (a) . . . ” N.C.G.S. § 15A-924(e) (emphasis added).

In other words, pursuant to the Act, the court cannot continue criminal prosecution

if the indictment fails to charge the defendant with a crime.            These provisions

represent the statutory adoption of the common law rule that a valid indictment is

required for a court to retain jurisdiction to prosecute a felony charge, as well as the

common law remedy for lack of jurisdiction—dismissal.

       Any assertion that the legislature implicitly abrogated the common law rule

by enacting the Criminal Procedure Act would be unjustified in light of the

legislature’s initial comprehensive reform of the Act and the detailed commentary

included with the codified statutes.       The Criminal Code Commission’s proposal

emerged after a total of thirty-eight meeting days, in which it “carefully considered

the best of North Carolina practice” before submitting final recommendations.

Legislative Program and Report to the General Assembly of North Carolina by the

Criminal Code Commission at i-ii (1973).

           The General Assembly acknowledged and approved of the common law

remedy for invalid indictments with the enactment of the revised Criminal Procedure


       6 Although the dissent interprets N.C.G.S. § 15A-954(a) to preclude trial judges from
dismissing fatally defective indictments on their own motion, nothing in the statutory
language limits their authority to situations in which the defendant makes a dismissal
motion. In addition, the fact that the General Assembly has adopted short form indictments
for certain offenses does not undercut the validity of the common law rule, given that the
same lack of jurisdiction exists when an indictment fails to comply with the statutory
requirements for such pleadings.

                                           -20-
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                                    Opinion of the Court



Act. The official commentary accompanying N.C.G.S. § 15A-924 states in part: “The

pleading rule, requiring factual (but not evidentiary) allegations to support each

element, is in accord with our traditional ideas and provides a concise statutory

statement.” N.C.G.S. § 15A-924 official cmt. (citing Greer, 238 N.C. 325, 77 S.E.2d

917). In Greer we held that an indictment is facially invalid when it omits any

essential elements of the crime to be charged. Id. As a result of the defective

indictment, the Court in Greer applied the common law remedy for defective

indictments. Id. The official commentary referencing Greer demonstrates that the

legislature explicitly endorsed the common law rules for indictments as stated in that

case, including the common law remedy for invalid indictments. See Greer, 238 N.C.

at 332, 77 S.E.2d at 922. Furthermore, in the decades since the enactment of the

revised Criminal Procedure Act, the common law remedy for invalid indictments has

been applied time and again by the appellate courts. See, e.g., State v. Simpson, 302

N.C. 613, 616, 276 S.E.2d 361, 363 (1981) (“[A] valid bill of indictment is essential to

the jurisdiction of the court to try defendant for a felony.”); State v. Mostafavi, 370

N.C. 681, 684, 811 S.E.2d 138, 141 (2017) (observing that “a valid bill of indictment

is essential to the jurisdiction of the trial court to try an accused for a felony” (quoting

Sturdivant, 304 N.C. at 308, 283 S.E.2d at 729)). The General Assembly, no doubt

aware of this practice, has never acted to abrogate this common law rule, although it

does retain the right to do so for policy-related reasons. There is no unsettled question




                                           -21-
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                                  Opinion of the Court



of whether the common law remedy for invalid indictments was abrogated by the

Criminal Procedure Act.

      We conclude that subdivision (a)(1), which requires that the accused be an

unauthorized person depositing refuse on land not designated by the State for such

use, is an essential element of the crime of felony littering. Accordingly, we affirm

the holding of the Court of Appeals.



      AFFIRMED.




                                         -22-
      Chief Justice MARTIN dissenting.

      I write separately to discuss the significant failings of the jurisdictional

approach the majority uses to evaluate the sufficiency of criminal indictments.

Taking my cue from United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002), the

time has come to reconsider this antiquated approach to flawed indictments in light

of the extensive statutory, constitutional, and conceptual changes in criminal

procedure during the twentieth century. Moreover, the General Assembly may wish

to consider revisions to our criminal code to lessen the detrimental impact of the

common law jurisdictional approach on the administration of justice in North

Carolina.

      In addition to my concerns about the common law jurisdictional rule, I also

write separately because the majority creates (under the guise of interpretation) its

own criminal offense and fails to grapple with or apply our precedents on the

classification of criminal statutory provisos. And, in so doing, the majority creates

significant uncertainty by failing to establish a discernible method to assist lower

courts and prosecutors in distinguishing between elements and defenses.

                                          I
      A valid indictment must comply with requirements of form and substance, see

N.C.G.S. §§ 15A-644(a), -924(a) (2017), including the statutory requirement that an

indictment contain facts supporting every element of the charged offense, id.

§ 15A-924(a)(5).
                                   STATE V. RANKIN

                                  Martin, C.J., dissenting



      The State indicted defendant for felony littering under N.C.G.S. § 14-399. In

relevant part, that statute provides:

                    (a) No person . . . shall intentionally or recklessly
             throw, scatter, spill or place . . . or otherwise dispose of any
             litter upon any public property or private property not
             owned by the person within this State or in the waters of
             this State . . . except:

                       (1) When the property is designated by the State
                           or political subdivision thereof for the
                           disposal of garbage and refuse, and the
                           person is authorized to use the property for
                           this purpose . . . .

                    ....

                    (e) Any person who violates subsection (a) of this
             section in an amount exceeding 500 pounds or in any
             quantity for commercial purposes, or who discards litter
             that is a hazardous waste . . . is guilty of a Class I felony.

Id. § 14-399 (2017). According to the majority, the merits of this case hinge on

whether the proviso in subdivision (a)(1) is an element of felony littering or an

affirmative defense.

      In deciding this issue, we are confronted with a two-part inquiry. First, the

Court must ask whether, omitting the proviso, the primary provision in the statute

states a “complete and definite” description of the crime. State v. Dobbins, 277 N.C.

484, 502, 178 S.E.2d 449, 460 (1971) (quoting State v. Connor, 142 N.C. 700, 701, 55

S.E. 787, 788 (1906)). If it does not, then any proviso that completes the description

must be included in the indictment. See id. (quoting Connor, 142 N.C. at 701, 55 S.E.


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                                    Martin, C.J., dissenting



at 788). Alternatively, if the primary provision does state a complete and definite

description of the crime, then our next task is to classify the proviso as either an

exception or a qualification. Connor, 142 N.C. at 701-02, 55 S.E. at 788-89; see also

State v. Norman, 13 N.C. (2 Dev.) 222, 226 (1829) (describing the two kinds of

provisos).   This distinction—used by this Court since at least 1829—is fairly

straightforward: exceptions remove certain cases from the operation of the statute,

while qualifications bring a case within the operation of the statute. Norman, 13 N.C.

(2 Dev.) at 226. An exception does not need to be negated in the indictment; the onus

is on the defendant to raise the exception as a defense. Id. But if the proviso is a

qualification, “the indictment must bring the case within the proviso.” Id.

       In State v. Moore, for example, this Court considered an indictment for the

illegal sale of intoxicating liquors. The relevant statute provided “[t]hat it shall be

unlawful for any person . . . other than druggists and medical depositaries [sic] duly

licensed thereto, to engage in the business of selling, exchanging, bartering, giving

away for the purpose of direct or indirect gain, or otherwise handling spirituous,

vinous or malt liquors.” 166 N.C. 284, 285-86, 81 S.E. 294, 295 (1914) (emphasis

added) (quoting Act of Mar. 3, 1913, ch. 44, sec. 1, 1913 N.C. Pub. [Sess.] Laws 76,

76-77). The defendant challenged the sufficiency of the charging warrant1 because it


       1 The defendant was charged by use of a warrant rather than an indictment because
the charged crime was a misdemeanor. See Moore, 166 N.C. at 286, 81 S.E. at 295. This
distinction does not affect the analysis of whether a proviso is an exception or a qualification


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                                   Martin, C.J., dissenting



failed to allege that he was not a druggist or a medical depository. Id. at 286, 81 S.E.

at 295. But this Court rejected that challenge because “the exception in the statute

is no part of the definition or description of the offense, but simply withdraws certain

persons from its operation.” Id. at 288, 81 S.E. at 296.

       Before we determine whether the primary provision of the statute states a

“complete and definite” description of a crime, we must bear in mind the respective

roles of the legislative and judicial branches.           The General Assembly, as the

lawmaking arm of the people, has the power to define criminal activity. See N.C.

Const. art. II, § 1; State v. Hill, 272 N.C. 439, 443, 158 S.E.2d 329, 332 (1968) (“It is

the General Assembly which is to define crimes and ordain their punishment.”

(quoting State v. Whitehurst, 212 N.C. 300, 303, 193 S.E. 657, 660 (1937))). The

courts, on the other hand, have the power to interpret the laws passed by the General

Assembly and to determine whether these laws, either facially or as applied, violate

the constitution. See N.C. Const. art. IV, § 1; Bayard v. Singleton, 1 N.C. (Mart.) 5,

6-7 (1787).

       Here, the statute’s primary provision states that “[n]o person . . . shall

intentionally or recklessly throw, scatter, spill or place . . . any litter upon any public

property or private property not owned by the person.” N.C.G.S. § 14-399(a). This



for the purpose of a charging instrument, though. See id. at 288-89, 81 S.E. at 296 (stating
that “[c]riminal accusations, whether in the form of warrants or indictments, must” meet
certain requirements (emphasis added)).

                                             -4-
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                                  Martin, C.J., dissenting



provision creates criminal liability to redress the societal ill of littering. It defines

the required culpability—intent or recklessness. It is, therefore, a complete and

definite statement of a crime: no person may intentionally or recklessly throw or spill

litter on any public property or on private property that he or she does not own.

      But the majority today usurps the role of the General Assembly by summarily

declaring—as part of a so-called “holistic inquiry”—that the crime of littering “is not

complete unless it excludes authorized locations and persons from its definition.” In

other words, the majority declares that the crime of littering must, by definition, be

committed without privilege or consent to be a crime. But this conclusion not only

arrogates to this Court a power that is properly left in the General Assembly’s hands;

it also causes the majority’s reasoning to collapse under the weight of past precedent.

This Court has, on more than one occasion, stated that

                    [t]hough the general rule is, that a proviso contained
             in the same section of the law . . . in which the defence is
             defined, must be negatived [in the indictment], yet where
             the charge itself is of such a nature that the formal
             statement of it is equivalent in meaning to such negative
             averment, there is no reason for adhering to the rule, and
             such a case constitutes an exception to it.

State v. Sturdivant, 304 N.C. 293, 310, 283 S.E.2d 719, 730-31 (1981) (ellipsis in

original) (emphasis added) (quoting State v. Bryant, 111 N.C. 693, 694, 16 S.E. 326,

326 (1892)). Stated differently, if the crime, by its very nature, must be committed

without privilege or consent, then the indictment does not need to negate privilege or

consent. It follows that if the majority’s characterization of the crime of littering is

                                            -5-
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                                  Martin, C.J., dissenting



correct—that a person can litter only if he or she does so without privilege or

consent—then it is unnecessary to specifically assert the lack of privilege or consent

in the indictment.

      Because subsection (a) is a complete and definite description of the crime, the

appropriate next step for this Court is to determine whether subdivision (a)(1) is an

exception or a qualification to subsection (a). And, when analyzed under our long-

standing precedent, subdivision (a)(1) is unquestionably an exception.

      Once again, this analysis is straightforward: does the proviso subtract from the

crime described in subsection (a), or does it bring additional cases within its

operation? See Norman, 13 N.C. (2 Dev.) at 226. Subsection (a) prohibits disposing

of litter on public property or private property belonging to another person. N.C.G.S.

§ 14-399(a). But subdivision (a)(1) allows disposal of litter on land “designated . . . for

the disposal of garbage and refuse” by persons “authorized to use the property for

[that] purpose.” Id. § 14-399(a)(1). This proviso removes a specific act (disposing of

litter on land designated for that purpose) committed by a specific class of persons

(persons authorized to use that land) from the general definition in subsection (a). It

is therefore an “exception in the statute [that] is no part of the definition or

description of the offense.” Moore, 166 N.C. at 288, 81 S.E. at 296. Accordingly,

subdivision (a)(1) need not be alleged in the indictment.

      By contrast, subsection (e) provides a qualification. For the conduct described



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                                 Martin, C.J., dissenting



in subsection (a) to be a felony, the litter must be hazardous waste, litter “in an

amount exceeding 500 pounds,” or litter “in any quantity for commercial purposes.”

N.C.G.S. § 14-399(e). This proviso qualifies the offense described in subsection (a),

and an indictment that tracks only the language of subsection (a) would not support

a conviction for felony littering. Thus, a felony littering indictment must include the

qualification in subsection (e). In this case, the indictment did so, asserting that

“[t]he litter discarded was hazardous waste,” which “br[ought] the case within the

proviso.” Norman, 13 N.C. (2 Dev.) at 226.

      The majority opinion objects to the classification of subdivision (a)(1) as an

exception, raising the Court of Appeals’ example of a sanitation worker being

“criminally charged for doing his or her job” to show how this classification might lead

to absurd results. The majority then purports to apply the absurdity doctrine to

justify its construction of the littering statute to avoid this hypothetical injustice.

But, contrary to the majority’s theoretical musings, the ability to conjure up absurd

hypothetical scenarios should not change the way that we classify subdivision (a)(1).

This principle is easily demonstrated by State v. Sturdivant, in which the defendant

was indicted for, among other things, kidnapping under N.C.G.S. § 14-39, which

prohibited a person from “confin[ing], restrain[ing], or remov[ing] from one place to

another, any other person 16 years of age or over without the consent of such person,

or any other person under the age of 16 years without the consent of a parent or legal

custodian of such person.” N.C.G.S. § 14-39(a) (1981); see Sturdivant, 304 N.C. at

                                           -7-
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                                    Martin, C.J., dissenting



309, 283 S.E.2d at 730. In Sturdivant, this Court considered, among other issues,

whether an indictment “was fatally defective under” the kidnapping statute “because

it failed to allege specifically that the kidnapping was effected without the victim’s

consent.” 304 N.C. at 308, 283 S.E.2d at 730. Because “the crime of kidnapping

cannot be committed if one consents to the act,” this Court determined that consent

was a defense that did not need to be negated in the indictment. Id. at 310, 283

S.E.2d at 731.

       Had this majority decided Sturdivant, it would have reached the opposite

result. After all, under Sturdivant’s reasoning, an innocent school bus driver may be

arrested and forced to stand trial for multiple kidnapping charges “for doing his or

her job.” This would never happen, of course—because no judge or magistrate would

issue the arrest warrant, see N.C.G.S. § 15A-304(b)(1) (Supp. 2018), no prosecutor

would pursue the charges, and no grand jury would indict the bus driver.2

       In any event, the majority has misapplied the absurdity doctrine. Under that

doctrine, “where a literal interpretation of the language of a statute will lead to

absurd results, or contravene the manifest purpose of the Legislature, as otherwise

expressed, the reason and purpose of the law shall control and the strict letter thereof



       2 This outlandish illustration highlights the real absurdity in this case: the majority’s
lack of confidence in the men and women serving as grand jurors in our criminal justice
system. Despite the majority’s dystopian predictions, I find it hard to imagine that a grand
jury anywhere in our State would indict hapless bus drivers, sanitation workers, or other
hard-working citizens for simply doing their jobs.

                                              -8-
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                                 Martin, C.J., dissenting



shall be disregarded.” State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005)

(quoting Mazda Motors of Am., Inc. v. Sw. Motors, Inc., 296 N.C. 357, 361, 250 S.E.2d

250, 253 (1979)); see also State v. Jones, 367 N.C. 299, 306, 758 S.E.2d 345, 350 (2014)

(applying the absurdity doctrine). The absurdity doctrine, in other words, applies to

the act of interpreting a statute—to determining the statute’s meaning.

      The absurdity doctrine does not apply here, however, because this is not a

dispute about the statute’s meaning. This dispute is about how to classify the proviso

in subdivision (a)(1), not how to interpret it. It is about whether the proviso is an

element, not about what the proviso means. So the absurdity doctrine should have

no place in our analysis especially when, as here, the hypothetical injustices conjured

up by the majority are factually unrelated to this defendant’s crime.

      In the course of its improper use of the absurdity canon, moreover, the majority

has distorted the issue in this case. We are not being asked to decide whether it

would be legally proper for a prosecutor or a grand jury to charge someone (for

example, a sanitation worker) who clearly falls under the auspices of subdivision

(a)(1) with a crime.   We are being asked to decide whether an indictment of a

defendant who clearly did not fall within the auspices of subdivision (a)(1) needs to

include facts that support that self-evident contention. These two issues are not the

same at all, but the majority has unhelpfully blended them together.

      For all of these reasons, the majority has erred by failing to apply the only



                                           -9-
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                                 Martin, C.J., dissenting



correct test to the question at hand—namely, whether subdivision (a)(1) amounts to

an exception or a qualification under Norman and related cases. It is clear, once one

applies the exception-versus-qualification paradigm correctly, that subdivision (a)(1)

is an exception, and that the indictment here thus did not have to plead any facts to

support it. By not applying this paradigm at all, and by reaching a result contrary to

the one reached by its proper application, the majority has erred. Furthermore, by

abandoning textual analysis in favor of a nebulous “holistic inquiry,” the majority

leaves trial courts and prosecutors in the untenable position of having to guess how

the Supreme Court will ultimately define a criminal offense.

                                           II

      Moving beyond the majority’s error on the merits, this Court should reconsider

whether vacating the judgment is the appropriate remedy when, as here, defendant

failed to object to the indictment at the trial court stage. The Supreme Court of the

United States, addressing a similar question in United States v. Cotton, concluded

that a defective indictment did not deprive a court of jurisdiction. 535 U.S. at 631,

122 S. Ct. at 1785 (stating that “[i]nsofar as [Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781

(1887)] held that a defective indictment deprives a court of jurisdiction, Bain is

overruled”). In light of the many changes to our state’s criminal procedure during

the twentieth century, a reassessment of this common law jurisdictional rule is long




                                          -10-
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                                    Martin, C.J., dissenting



overdue.3

      In Cotton, the Supreme Court reevaluated its own long-standing rule that a

flawed indictment deprives a criminal court of jurisdiction over a case.             That

jurisdictional rule emerged at the federal level in 1887 in Ex parte Bain, a case in

which the Supreme Court concluded that an amendment to an indictment “was

improper and that therefore ‘the jurisdiction of the offence [was] gone, and the court

[had] no right to proceed any further in the progress of the case for want of an

indictment.’ ” Id. at 629, 122 S. Ct. at 1784 (alterations in original) (quoting Bain,

121 U.S. at 13, 7 S. Ct. at 788).

      Reevaluating the rule’s propriety more than a century later, the Supreme

Court reasoned that

                     Bain’s elastic concept of jurisdiction is not what the
              term “jurisdiction” means today, i.e., “the courts’ statutory
              or constitutional power to adjudicate the case.” This latter
              concept of subject-matter jurisdiction, because it involves a
              court’s power to hear a case, can never be forfeited or
              waived.       Consequently, defects in subject-matter
              jurisdiction require correction regardless of whether the
              error was raised in district court. In contrast, the grand
              jury right can be waived.

Id. at 630, 122 S. Ct. at 1785 (citations omitted) (first quoting Steel Co. v. Citizens for

Better Env’t, 523 U.S. 83, 89. 118 S. Ct. 1003, 1010 (1998); then citing Louisville &



      3 Given the significant import of this question of law to North Carolina criminal
procedure, this Court should request supplemental briefing. So, to be clear, I am not
suggesting that we rule on this question without input from the parties.

                                             -11-
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                                     Martin, C.J., dissenting



Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S. Ct. 42, 43 (1908); and then

citing Fed. R. Crim. P. 7(b) and Smith v. United States, 360 U.S. 1, 6, 79 S. Ct. 991,

995 (1959)).     After cataloguing other cases that departed from the Bain rule

throughout the twentieth century, the Court overruled the holding in Bain that “a

defective indictment deprives a court of jurisdiction.” Id. at 630-31, 122 S. Ct. at

1785.

        Our State adopted a number of significant changes to our criminal procedure

laws during the twentieth century. In 1950, the voters approved a constitutional

amendment permitting criminal defendants to waive their right to indictment in most

cases.4 State v. Thomas, 236 N.C. 454, 457, 73 S.E.2d 283, 285 (1952); see also N.C.

Const. art. I, § 22 (“[A]ny person, when represented by counsel, may, under such

regulations as the General Assembly shall prescribe, waive indictment in noncapital

cases.”).   Twenty-four years later, our General Assembly enacted the Criminal

Procedure Act, bringing sweeping changes to our rules of criminal procedure. See

generally Act of Apr. 11, 1974, ch. 1286, 1973 N.C. Sess. Laws (2d Sess. 1974) 490.

But in the forty-four years since passage of the Criminal Procedure Act, this Court




        4At least one commentator has argued that the rule permitting waiver of indictments
at the federal level is unconstitutional. See generally Roger A. Fairfax, Jr., The Jurisdictional
Heritage of the Grand Jury Clause, 91 Minn. L. Rev. 398, 430-48 (2006) (describing the
friction between the United States Constitution and reformers’ desire to circumvent the
grand jury requirement). Whatever constitutional deficiencies may or may not plague the
federal rule permitting waiver, the adoption of a constitutional amendment in our state
removes any such questions concerning waiver.

                                              -12-
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                                 Martin, C.J., dissenting



has never squarely considered whether the statute abrogated the common law rule

that a defective indictment deprives a criminal court of jurisdiction. Instead, the

majority opinion today once again carries forward this relic of the code pleading era.

                                           A
      At our founding, many of our laws were derived from the British common law.

See State v. Owen, 5 N.C. (1 Mur.) 452, 462 (1810) (“[I]t might be asked what the

common law of England was when it was adopted by this country, for such as it was,

it must be observed.”). All of our constitutions have adopted elements of Magna Carta

and the English Declaration of Rights. See John V. Orth, The Past is Never Dead:

Magna Carta in North Carolina, 94 N.C. L. Rev. 1635, 1637-38 (2016); John V. Orth,

The Strange Career of the Common Law in North Carolina, 36 Adel. L. Rev. 23, 23-24

(2015) [hereinafter Orth, Career of the Common Law]. And by statute, the General

Assembly “re-adopted the colonial legislation and received ‘such Parts of the Common

Law, as were heretofore in Force and Use within this Territory’.” Orth, Career of the

Common Law at 24 (quoting Act of 1778, ch. 5, sec. 2, 24 State Records of North

Carolina 162, 162 (photo. reprint 1994) (Walter Clark ed., 1905)); see also N.C.G.S.

§ 4-1 (2017). Indictments were no exception; some of our earliest cases on indictments

drew their rules from English common law. See, e.g., State v. Trexler, 4 N.C. (Car. L.

Rep.) 188, 192-93 (1815); State v. Adams, 1 N.C. (Mart.) 56, 58 (1793).

      The common law imposed rigid technical requirements on indictments. For

example, at common law, an indictment alleging homicide “occasioned by a wound”


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had to describe the dimensions of the wound “where they [we]re capable of

description.” Owen, 5 N.C. (1 Mur.) at 461. An indictment that failed to comply with

these requirements also failed to confer on the court the power to proceed to judgment

on the charge. See, e.g., Owen, 5 N.C. (1 Mur.) at 464 (quashing an indictment that

did not describe the mortal wound).

      At least as early as 1810, our courts questioned the usefulness of imposing such

high standards on indictments. As the Court stated in Owen:

             [T]here is, in the ancient reasoning on this branch of the
             law, a degree of metaphysical and frivolous subtilty
             strongly characteristic of the age in which it was
             introduced, when at the revival of letters the first efforts of
             learning were laborious and rude, and scarcely a ray of
             common sense penetrated the clouds of pedantry. Were a
             system now to be established, it is probable that much of
             the jargon of the law would be exploded, and that no
             objection would prevail against an indictment, or any other
             instrument, which conveyed to the mind, in an intelligible
             form, its intended impression. But we must follow in the
             footsteps of those who have preceded us until the
             Legislature think fit to interfere; though we have no wish
             to extend the particularity further.

Id. at 458; see also id. at 461 (“HENDERSON, J., observed, that if the Court were

now about to decide on the propriety of requiring the dimensions of any wound

charged in an indictment to be mortal, to be set out, he should be clearly of opinion

that it was unnecessary.”); id. at 463 (“All modern writers agree that the dimensions

of the wound must be stated—not for any good reason, he admitted, but it was not for

the Court to legislate, but to decide, as they had sworn to do, according to the law.”).


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       In 1811, the General Assembly enacted a statute intended to alleviate some of

these technical requirements—likely as a response to Owen. State v. Hunt, 357 N.C.

257, 268, 582 S.E.2d 593, 600-01 (2003) (citing State v. Moses, 13 N.C. (2 Dev.) 452,

463 (1830)). Still in effect today, that enactment provided that an indictment “is

sufficient . . . 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.” Id. at 268, 582

S.E.2d at 601 (alteration in original) (quoting N.C.G.S. § 15-153 (2001)).

       Throughout the nineteenth and twentieth centuries, our legislature took

further steps to simplify indictments. In 1887, the General Assembly alleviated some

of the technical burdens of pleading by permitting short-form indictments for murder.

That statute, now codified at N.C.G.S. § 15-144, declares an indictment for murder

sufficient if it “allege[s] that the accused person feloniously, willfully, and of his

malice aforethought, did kill and murder” the named victim. N.C.G.S. § 15-144

(2017); see also Hunt, 357 N.C. at 268-69, 582 S.E.2d at 601 (quoting N.C.G.S.

§ 15-144 (2001)). When the General Assembly separated murder into two degrees in

1893, it reasserted this desire to simplify murder indictments, declaring that

“[n]othing contained in the statute law dividing murder into degrees shall be

construed to require any alteration or modification of the existing form of indictment

for murder, but the jury before whom the offender is tried shall determine in their

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verdict whether the crime is murder in the first or second degree.” N.C.G.S. § 15-172

(2017); see also Hunt, 357 N.C. at 269, 582 S.E.2d at 601 (quoting N.C.G.S. § 15-172

(2001)). The practical consequence of these statutes is that an indictment need not

allege all essential elements of first-degree murder to sustain a guilty verdict for first-

degree murder.     Compare N.C.G.S. § 14-17(a) (2017) (“A murder which shall be

perpetrated by means of a nuclear, biological, or chemical weapon of mass destruction

. . . , poison, lying in wait, imprisonment, starving, torture, or by any other kind of

willful, deliberate, and premeditated killing, or which shall be committed in the

perpetration or attempted perpetration of any arson, rape or a sex offense, robbery,

kidnapping, burglary, or other felony committed or attempted with the use of a deadly

weapon shall be deemed to be murder in the first degree . . . .”) with id. § 15-144

(permitting an indictment to omit certain elements of first-degree murder as long as

it “allege[s] that the accused person feloniously, willfully, and of his malice

aforethought, did kill and murder” the named victim).

      Our courts joined the General Assembly in its push toward simplifying the

standard for indictments. See State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919

(1953). For indictments not alleging homicide, the rule that emerged was that the

indictment must allege all of the essential elements of the charged offense. E.g., id.;

State v. Morgan, 226 N.C. 414, 415, 38 S.E.2d 166, 167 (1946); State v. Johnson, 188

N.C. 591, 593, 125 S.E. 183, 184 (1924). This rule ensured that indictments provided

criminal defendants with due process by identifying the crime charged, enabling

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defendants to prepare for trial, and protecting them from double jeopardy. See State

v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984) (first citing State v. Squire,

292 N.C. 494, 506, 234 S.E.2d 563, 570 (1977); and then citing State v. Russell, 282

N.C. 240, 243-44, 192 S.E.2d 294, 296 (1972)).

      Nevertheless, our criminal law and procedure became “hopelessly outdated,”

requiring a significant overhaul from the legislature. See Legislative Program and

Report to the General Assembly of North Carolina by the Criminal Code Commission,

at i (1973). In 1974, the General Assembly enacted a comprehensive reform of our

criminal procedure, codified now at Chapter 15A of our General Statutes. Ch. 1286,

1973 N.C. Sess. Laws (2d Sess. 1974) 490. The General Assembly intended these

enactments to “mak[e] the law more understandable and improv[e] the

administration of justice.” State v. Freeman, 314 N.C. 432, 436, 333 S.E.2d 743, 746

(1985). As part of this sweeping reform, the General Assembly enacted statutory

standards for indictments.     N.C.G.S. § 15A-924(a).        These standards included a

restatement of the common law rule that the indictment contain facts supporting

each essential element of the charged offense. Id. § 15A-924(a)(5) (requiring that

each indictment 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”).

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      Despite its comprehensive nature, though, the Criminal Procedure Act did not

directly address whether indictments that do not meet the Act’s statutory standards

fail to confer jurisdiction on the court; there is no single provision that explicitly

adopts or rejects the common law jurisdictional rule. Compounding this omission is

a dearth of cases analyzing whether the Criminal Procedure Act carried forward or

abrogated the common law jurisdictional rule. Instead, our cases have reflexively

incorporated the common law remedy of arresting judgment on indictments that fail

to meet the standards set forth in N.C.G.S. § 15A-924(a). For example, in State v.

Simpson, 302 N.C. 613, 276 S.E.2d 361 (1981), this Court arrested a judgment based

on an indictment that failed to name or identify the defendant in violation of section

15A-924(a)(1).   For the rule that a flawed indictment deprived our courts of

jurisdiction, Simpson relied on State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975).

See Simpson, 302 N.C. at 616, 276 S.E.2d at 363. But this Court decided Crabtree on

12 March 1975—before the effective date of the Criminal Procedure Act. Ch. 1286,

sec. 31, 1973 N.C. Sess. Laws (2d Sess. 1974) at 557 (declaring the effective date of

the act as 1 July 1975). In contrast, the facts in Simpson occurred on 3 July 1979.

302 N.C. at 614, 276 S.E.2d at 362. While the Criminal Procedure Act did not apply

to the defendant in Crabtree, it did apply in Simpson. So instead of summarily

relying on this common law rule, this Court arguably could have analyzed the

Criminal Procedure Act to determine whether the common law rule articulated in

Crabtree still applied. But it did not.


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       The cases relied upon by today’s majority trace their lineage back to this faulty

origin. The majority draws today’s rule from State v. Campbell, 368 N.C. 83, 86, 772

S.E.2d 440, 443 (2015), in a quote which finds its origins in Sturdivant, 304 N.C. at

308, 283 S.E.2d at 729. Sturdivant, in turn, drew its rule directly from Simpson and

Crabtree.5 See Sturdivant, 304 N.C. at 308, 283 S.E.2d at 729. Today, the majority

perpetuates this obsolescent rule by adding another link to this flawed chain.

       Nearly half a century after the passage of the Criminal Procedure Act, this

Court continues to apply the common law rule requiring that convictions based on

flawed indictments be vacated without determining whether the Criminal Procedure

Act abrogated that common law rule. E.g., State v. Langley, ___ N.C. ___, ___, 817

S.E.2d 191, 195 (2018) (relying on the common law rule articulated in State v.

McBane, 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969)); State v. McGaha, 306 N.C. 699,

702-03, 295 S.E.2d 449, 451 (1982) (relying on the common law rule articulated in

State v. Benton, 275 N.C. 378, 381-82, 167 S.E.2d 775, 777-78 (1969), and State v.

Coppedge, 244 N.C. 590, 591, 94 S.E.2d 569, 570 (1956)); cf. State v. Wallace, 351 N.C.

481, 503, 528 S.E.2d 326, 341 (2000) (relying on the common law rule articulated in

McGaha and State v. Sellers, 273 N.C. 641, 645, 161 S.E.2d 15, 18 (1968)).

Admittedly, at this juncture, the doctrine of stare decisis may justify this




       5 The majority also relies on State v. Wagner, 356 N.C. 599, 601, 572 S.E.2d 777, 779
(2002) (per curiam). Wagner cites directly to State v. Vestal, 281 N.C. 517, 520, 189 S.E.2d
152, 155 (1972), another case that predates the Criminal Procedure Act.

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unwillingness to consider this question; however, the failings of the common law

jurisdictional rule seem to invite legislative reexamination of this question.

                                           B
      A thorough analysis of the Criminal Procedure Act reveals significant evidence

that the Act should have displaced the common law jurisdictional rule. “When the

General Assembly as the policy making agency of our government legislates with

respect to the subject matter of any common law rule, the statute supplants the

common law and becomes the law of the State.” News & Observer Publ’g Co. v. State

ex rel. Starling, 312 N.C. 276, 281, 322 S.E.2d 133, 137 (1984) (citing McMichael v.

Proctor, 243 N.C. 479, 483, 91 S.E.2d 231, 234 (1956)).

      The Criminal Procedure Act was a comprehensive overhaul of the rules of

criminal procedure in our state. As with all aspects of criminal procedure, the Act

thoroughly addresses indictments and other charging instruments, including the

form of these documents, the methods of challenging their sufficiency, and the

available remedies in the event that these instruments are flawed. Article 49 covers

pleadings and joinder in criminal cases. N.C.G.S. ch. 15A, art. 49 (2017). This article

provides for the use of pleadings in felony cases, see id. § 15A-923 (2017), and

establishes clear expectations about the substance of indictments, see id. § 15A-924.

But nothing in Chapter 15A, Article 49 indicates that the requirements of section

15A-924(a) are essential to the jurisdiction of the court.

      The majority asserts that the General Assembly “explicitly endorsed” the

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common law jurisdictional rule by citing to State v. Greer in the official commentary

to section 15A-924. See N.C.G.S. § 15A-924 official cmt. (2017). But the official

commentary cites Greer only for the proposition that “[t]he pleading rule, requiring

factual (but not evidentiary) allegations to support each element, is in accord with

traditional ideas.” Id. (citing Greer, 238 N.C. 325, 77 S.E.2d 917). Far from “explicitly

endors[ing]” the common law jurisdictional rule, the commentary cites Greer to clarify

the rule that an indictment include “[a] plain and concise factual statement in each

count which . . . asserts facts supporting every element of a criminal offense.” Id. §

15A-924(a)(5). At best, the commentary is silent on the common law jurisdictional

rule.

        In fact, the Criminal Procedure Act provides a separate article solely for

jurisdictional rules—Article 2, entitled “Jurisdiction.” Article 2 is reserved entirely

for future codification. N.C.G.S. ch. 15A, art. 2 (2017). And the official commentary

to Article 3 (“Venue”) indicates that criminal jurisdiction is presently governed by

Chapter 7A of our General Statutes. Id., ch. 15A, art. 3 official cmt. (2017) (noting

that Article 2 is vacant and that “jurisdiction of courts is still primarily covered in

Chapter 7A of the General Statutes”). No provision of Chapter 7A mandates that

flawed indictments have the effect of depriving the trial court of jurisdiction. See,

e.g., id. § 7A-271 (2017) (setting the boundaries of the superior court’s jurisdiction).

Our General Statutes thus comprehensively provide for criminal pleadings and

criminal jurisdiction—the two subjects of the common law jurisdictional rule. And

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nowhere has the General Assembly demonstrated any intent to adopt the common

law rule. The omission from Articles 2 and 49 of Chapter 15A and from Chapter 7A

of any jurisdictional rules concerning indictments therefore indicates that the

Criminal Procedure Act probably abrogated the common law jurisdictional rule.

      In addition, the statutes establishing remedies for flawed pleadings are not

conceptually compatible with a jurisdictional rule for indictments. For example, the

Act requires dismissal of charges in a pleading that fails to comply with the

requirements of subsection (a).      Id. § 15A-924(e).      But, as the majority aptly

highlights, the statute permits this remedy only “[u]pon motion of a defendant.” This

does not fit within our typical conception of subject-matter jurisdiction. Contrast this

with our rules of civil procedure, which require the court to dismiss an action that

has jurisdictional defects—even on its own motion. See N.C. R. Civ. P. 12(h)(3); accord

Fed. R. Civ. P. 12(h)(3). Similarly, section 15A-955 allows the court to dismiss a case

for certain procedural flaws in the grand jury proceedings. But the court may do so

only “on motion of the defendant.” N.C.G.S. § 15A-955 (2017).

      In only one instance does the court have the power to assess, on its own, the

validity of the indictment under the current statutory framework. Under Article 29

of the Criminal Procedure Act (entitled “First Appearance Before District Court

Judge”), the district court judge is required to examine the charging instrument “and

determine whether each charge against the defendant charges a criminal offense

within the original jurisdiction of the superior court.” Id. § 15A-604(a) (2017). But

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even if the judge finds the charging instrument flawed, he or she is not required to

dismiss the charge.    Id. § 15A-604(b) (2017); see also N.C. R. Civ. P. 12(h)(3)

(“Whenever it appears by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the action.” (emphasis

added)).

      The conclusion that the Criminal Procedure Act supplants the common law

rule receives further support from provisions regarding motions and appeals. If in

fact the General Assembly had intended to leave the common law rule in place, many

of these provisions are redundant. “[A] statute should not be interpreted in a manner

which would render any of its words superfluous.” State v. Coffey, 336 N.C. 412, 417,

444 S.E.2d 431, 434 (1994) (first citing In re Watson, 273 N.C. 629, 634, 161 S.E.2d 1,

6-7 (1968); and then citing State v. Cloninger, 83 N.C. App. 529, 531, 350 S.E.2d 895,

897 (1986)). “We construe each word of a statute to have meaning, where reasonable

and consistent with the entire statute, because ‘[i]t is always presumed that the

legislature acted with care and deliberation . . . .’ ” Id. at 418, 444 S.E.2d at 434

(alterations in original) (quoting State v. Benton, 276 N.C. 641, 658, 174 S.E.2d 793,

804 (1970)).

      When one applies this principle of statutory construction to the Criminal

Procedure Act, it becomes even more apparent that the General Assembly did not

intend to carry forward the common law jurisdictional rule. Many provisions within

the Criminal Procedure Act separate the concepts of jurisdictional flaws and failure

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to plead—sometimes even in the same sentence. For example, one provision states

that “[m]otions concerning jurisdiction of the court or the failure of the pleading to

charge an offense may be made at any time.” N.C.G.S. § 15A-952(d) (2017) (emphasis

added). Another provision requires the court to dismiss the charges on motion of the

defendant if it finds that “[t]he court has no jurisdiction of the offense charged” or

“[t]he pleading fails to charge an offense.” Id. § 15A-954(a)(8), (10) (2017). And the

Act automatically preserves for appeal any errors based upon “[l]ack of jurisdiction of

the trial court over the offense of which the defendant was convicted,” or if “[t]he

pleading fails to state essential elements of an alleged violation, as required by G.S.

15A-924(a)(5).”   Id. § 15A-1446(d)(1), (4) (2017).          If the General Assembly had

intended for the failure to “assert[ ] facts supporting every element of a criminal

offense” to deprive the trial court of jurisdiction, as it did under the common law, then

these provisions are plainly superfluous.

      The Criminal Procedure Act comprehensively overhauled every aspect of our

criminal procedure, including indictments and other charging instruments.            But

nothing in the Act indicates that the failure to comply with the requirements of

section 15A-924(a) would flatly deprive the trial court of jurisdiction to hear the case.

“The Criminal Procedure Act was ‘designed to remove from our law unnecessary

technicalities which tend to obstruct justice.’ ” Jones, 367 N.C. at 313, 758 S.E.2d at

354 (Martin, J., concurring in part and dissenting in part) (quoting Freeman, 314 N.C.

at 436, 333 S.E.2d at 746). By carrying over the common law rules of indictments,

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this Court has “engraft[ed] additional unnecessary burdens upon the due

administration of justice.” Freeman, 314 N.C. at 436, 333 S.E.2d at 746.

                                             C
        In addition to undermining a fundamental purpose of the Criminal Procedure

Act, the jurisdictional rule flips the entire purpose of grand jury indictments on its

head.       By treating section 15A-924(a) as a jurisdictional barrier to criminal

prosecution in all cases except those charging homicide and certain sex offenses, this

Court has given greater protections to littering defendants than to capital

defendants.6

        The technicalities imposed on indictments—and the remedies for the failure to

comply with them—emerged in England at a time “when the punishment of crime

was so severe as in many cases to shock the moral sense of lawyers, judges and the

people generally.” Greer, 238 N.C. at 327, 77 S.E.2d at 919; Mark Kadish, Behind the

Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24

Fla. St. U. L. Rev. 1, 6-7 (1997) (noting that defendants accused by early iterations of

the grand jury “were tried by ordeal, which forced the suspects to prove their

innocence by overcoming the laws of nature”—a process that was “punishing, if not




        6 Admittedly, the General Assembly relaxed the requirements for a murder
indictment, relative to most other felonies, in the nineteenth century. See N.C.G.S. § 15-144.
But as this section discusses, while the original motivation for the common law jurisdictional
rule was to protect defendants in capital cases, it now protects everyone but defendants in
capital cases.

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actually fatal”); see generally George J. Edwards, Jr., The Grand Jury: An Essay 4-9

(1906) (discussing the various modes of trial and punishment in use when early

iterations of the grand jury emerged in England). Around the time of the American

Founding, the English criminal code—later dubbed the “bloody code”—contained

approximately 200 capital offenses. Phil Handler, Forging the Agenda: The 1819

Select Committee on the Criminal Laws Revisited, 25 J. Legal Hist. 249, 249 (2004).

Many of these capital crimes are treated as low-level felonies today. Compare id. at

251-52 (discussing the sharp increase in executions for forgery in the eighteenth and

nineteenth centuries) with N.C.G.S. § 14-119(a) (2017) (classifying forgery generally

as a Class I felony).

      Grand jury indictments thus arose to protect the lives of defendants.       As

Blackstone stated:

             [F]or so tender is the law of England of the lives of the
             subjects, that no man can be convicted at the suit of the
             king of any capital offence, unless by the unanimous voice
             of twenty-four of his equals and neighbors: that is, by
             twelve at least of the grand jury, in the first place,
             assenting to the accusation; and afterwards, by the whole
             petit jury, of twelve more, finding him guilty upon his trial.

4 William Blackstone, Commentaries *306 (emphasis added); see also John Somers,

The Security of Englishmen’s Lives 4 (London, Effingham Wilson 1821) (1681) (“For

this purpose it is made a fundamental in our government, that, unless it be by

parliament, no man’s life should be touched for any crime whatsoever, save by the

judgment of at least twenty-four men . . . .” (emphasis added)).

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      Because we adopted the English common law at the founding, North Carolina’s

criminal law in some ways reflected the draconian bloody code. The case of State v.

Norman discussed above for its distinction between elements and exceptions in

indictments, was a prosecution for bigamy in which the defendant had been sentenced

to death. See 13 N.C. (2 Dev.) at 227. And other eighteenth and nineteenth century

cases reveal a number of capital sentences for stealing horses. See, e.g., State v.

Coulter, 2 N.C. (1 Hayw.) 3, 3 (1791).

      In time, the number of capital offenses in our state decreased.       With the

adoption of the Constitution of 1868, our state limited capital punishment to

convictions for murder, arson, burglary, and rape. N.C. Const. of 1868, art. XI, § 2

(“The object of punishments, being not only to satisfy justice, but also to reform the

offender, and thus prevent crime, murder, arson, burglary, and rape, and these only,

may be punishable with death, if the General Assembly shall so enact.”). Today,

murder is the only crime punishable by death in our state. See N.C.G.S. § 14-17

(2017). And yet, murder is one of only a handful of crimes for which the General

Assembly has permitted short-form indictments. Id. § 15-144.

      Viewed through this lens, the folly of continued application of the common law

jurisdictional rule reveals itself. A defendant convicted of first-degree murder and

sentenced to die has no recourse where his indictment fails to “assert[ ] facts

supporting every element of” capital murder. But a defendant convicted of felony

littering and sentenced to a suspended prison sentence and 18 months of probation

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may appeal the indictment, overturn her conviction, and receive a new trial without

ever raising the issue at the trial court.

       That runs counter to the purpose and history of grand jury indictments. And

it incentivizes conduct at trial that may undermine the proper administration of

justice. After all, by continuing to apply this common law rule, we are giving a

defendant with a defective indictment a reason to “sandbag.” See Wainwright v.

Sykes, 433 U.S. 72, 89, 97 S. Ct. 2497, 2508 (1977). Fully informed of the charges

against him, the defendant may proceed to trial hoping for a favorable verdict. If he

is found guilty, he may then challenge the indictment on appeal for failing to assert

facts supporting an element of the crime. If he is successful, he receives a new trial

and a second bite at the apple, even if the facts omitted from the indictment had been

uncontestably proven at trial by the prosecution.

       This case provides a clear illustration of how the administration of justice can

be undermined by operation of the common law jurisdictional rule. Defendant’s

indictment for felony littering alleges that she “unlawfully, willfully and feloniously

did intentionally and recklessly spill and dispose of litter on property not owned by

the defendant, the property owned and controlled by the City of Greensboro and not

into a litter receptacle . . . .   The litter discarded was hazardous waste.”     This

indictment identified the crime charged, enabled defendant to prepare for trial, and

protected her from double jeopardy, thereby satisfying constitutional due process

requirements. Cf. Coker, 312 N.C. at 434-35, 323 S.E.2d at 346. Neither defendant

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nor her attorney challenged the pleading during the two-year period between her

indictment and her conviction. And, after her conviction, defendant’s initial proposed

issues on appeal related to the sufficiency of the evidence—not to the sufficiency of

the indictment.

      Notably, defendant ultimately raised only one issue on appeal to the Court of

Appeals: that the indictment failed to allege that the property where she littered was

not “designated . . . for the disposal of garbage and refuse.” N.C.G.S. § 14-399(a)(1).

Defendant did not raise this issue at the trial court, and for good reason. Assuming

arguendo that this provision is an essential element of felony littering, its omission

did not prejudice her case in any way. The evidence presented at trial showed that

she dumped heating fuel in the grass at 709 Elam Avenue in Greensboro and into the

street. Defendant could not plausibly argue that the prosecution failed to establish

that the land on which she poured heating oil was not publicly designated for that

purpose.   Had the State been compelled to issue a superseding indictment, its

issuance would have had no effect whatsoever on defendant’s ability to defend herself

or on the trial court proceedings as a whole. The whole exercise would have been

nonsensical.

      Nevertheless, defendant appealed the omission.            And today, defendant

succeeds in dumping fuel oil in someone else’s yard without consequence, not for the

sake of justice, but only because of the rigid technical rules of a bygone era.



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                                           III
      While the common law jurisdictional rule is outdated, imprudent, and

unnecessary, indictment by grand jury still plays a critical role in protecting

individual liberty. The grand jury has long been considered “one of the greatest

safeguards of the freedom of the citizen.” State v. Barker, 107 N.C. 913, 919, 12 S.E.

115, 117 (1890); see also In re Russo, 53 F.R.D. 564, 568 (C.D. Cal. 1971) (referring to

the grand jury as “a bulwark against . . . oppression and despotism”); but see generally

Helene E. Schwartz, Demythologizing the Historic Role of the Grand Jury, 10 Am.

Crim. L. Rev. 701 (1972) (explaining that “the grand jury’s history evidences the

vulnerability of that institution to pressure, abuse and manipulation by determined

partisans” and exploring famous examples). I do not suggest that the grand jury’s

role as a protective shield has diminished. But the common law jurisdictional rule,

when compared to other approaches, imposes substantial burdens on the judicial

system without appreciably advancing those celebrated protections. By discarding

the common law jurisdictional rule in favor of plain error review, this Court can

protect judicial economy and improve the administration of justice while still

safeguarding the rights of criminal defendants.

      This Court first adopted the plain error rule in State v. Odom. 307 N.C. 655,

660, 300 S.E.2d 375, 378 (1983). In Odom, this Court accepted the federal courts’

definition of plain error as “fundamental error, something so basic, so prejudicial, so

lacking in its elements that justice cannot have been done.” Id. (quoting United States


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                                  Martin, C.J., dissenting



v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (emphasis omitted)). “Our decisions

have recognized plain error only ‘in truly exceptional cases’ when ‘absent the error

the jury probably would have reached a different verdict.’ ” Dogwood Dev. & Mgmt.

Co. v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (quoting

State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). Presently, this Court

invokes the plain error rule to review jury instructions and evidentiary issues. Id.

      In Cotton, the United States Supreme Court, after rejecting the federal

common law jurisdictional rule, applied plain error review to the challenged

indictment. 535 U.S. at 631, 122 S. Ct. at 1785. The federal plain error test allows

appellate courts to correct “(1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]

substantial rights[,]’ . . . but only if (4) the error ‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’ ” Id. at 631-32, 122 S. Ct. at

1785 (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549

(1997) (first and third brackets in original)). Observing the “ ‘overwhelming’ and

‘essentially uncontroverted’ ” evidence in the record of the element of the offense that

was omitted from the indictment, id. at 633, 122 S. Ct. at 1786 (quoting Johnson, 520

U.S. at 470, 117 S. Ct. at 1550), the Court held that the failure to include the element

in the indictment “did not seriously affect the fairness, integrity, or public reputation

of judicial proceedings,” id. at 632-33, 122 S. Ct. at 1786.

      In the sixteen years since the Supreme Court decided Cotton, “a growing list of

states has flatly rejected earlier rulings characterizing the failure to allege all

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                                  Martin, C.J., dissenting



material elements as a jurisdictional defect.” State v. Duncan, 505 S.W.3d 480, 489

n.10 (Tenn. 2016) (citing Wayne LaFave et al., 5 Crim. Proc. § 19.2(e) (4th ed. 2015));

see also Ex parte Seymour, 946 So. 2d 536, 538 (Ala. 2006) (listing states that reject

the common law jurisdictional rule). Many of these states apply plain error review

(or some minor variation) when a defendant challenges a defective indictment

without objecting before the trial court. E.g., State v. Maldonado, 223 Ariz. 309, 313,

223 P.3d 653, 657 (2010) (en banc) (applying a “fundamental error” standard); State

v. Ortiz, 162 N.H. 585, 590, 34 A.3d 599, 604 (2011) (explaining that the failure to

object to the indictment before the trial court “confines our review to plain error”);

State v. Schrempp, 2016 S.D. 79, ¶ 13, 887 N.W.2d 744, 748 (2016) (stating that the

court “can only review for plain error” when the defendant fails to raise a timely

objection to the indictment). And in at least one state retaining the jurisdictional

rule, “defects ‘which are tardily challenged are liberally construed in favor of

validity.’ ” State v. Jones, 140 Idaho 755, 759, 101 P.3d 699, 703 (2004) (quoting State

v. Cahoon, 116 Idaho 399, 400, 775 P.2d 1241, 1242 (1989)).

      Applying our own plain error rule in cases in which the defendant failed to

object to a defective indictment at trial would lead to better outcomes by properly

aligning defendants’ incentives with the aims of justice. After all, one serious threat

to the “fairness, integrity, and public reputation of judicial proceedings” arises when

defendants, despite “overwhelming and uncontroverted evidence,” avoid punishment

for crimes because of “error[s] that w[ere] never objected to at trial.” Cotton, 535 U.S.

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                                 Martin, C.J., dissenting



at 634, 122 S. Ct. at 1787 (citing Johnson, 520 U.S. at 470, 117 S. Ct. at 1550).

      But our state has seen this unpalatable scenario play out repeatedly through

the application of the common law jurisdictional rule. For example, in State v.

Murrell, this Court affirmed a Court of Appeals decision to vacate a conviction for

robbery with a dangerous weapon. 370 N.C. 187, 197, 804 S.E.2d 504, 511 (2017). In

Murrell, the defendant robbed a bank by handing the teller a note demanding cash

and informing the teller that he was armed. Id. at 188, 804 S.E.2d at 505. After his

arrest, the defendant admitted to the robbery and told police that he had a weapon

in his possession during the robbery. Id. at 190, 804 S.E.2d at 506. The indictment

charging the defendant with robbery with a dangerous weapon alleged that he

committed the robbery “by way of it reasonably appearing to the victim . . . that a

dangerous weapon was in the defendant’s possession.”         Id.   The defendant was

convicted, and he appealed his conviction on the grounds that the indictment was

defective—an issue he failed to raise before the trial court. See id. The Court of

Appeals arrested the judgment, holding that the indictment “failed to name any

dangerous weapon that defendant allegedly employed.” Id. at 191, 804 S.E.2d at 507.

This Court affirmed that holding. Id. at 197, 804 S.E.2d at 511. Thus, despite the

threatening note and the defendant’s admission to having a pistol at the time of the

robbery, the defendant’s armed robbery conviction was vacated.

      Murrell is hardly an outlier. Indeed, there is no shortage of convictions in

North Carolina that were vacated due to a technical deficiency in an indictment that

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                                  Martin, C.J., dissenting



was not challenged before conviction and that had no bearing on the fairness,

integrity, or public reputation of judicial proceedings. See, e.g., State v. Randall, 228

N.C. App. 282, 748 S.E.2d 775, 2013 WL 3356878 (2013) (unpublished) (vacating a

conviction for being a registered sex offender unlawfully on the premises of an

elementary school because the indictment failed to specify what his previous offense

was or indicate that it involved a victim under the age of sixteen); State v. Harris, 219

N.C. App. 590, 597, 724 S.E.2d 633, 638-39 (2012) (same). In State v. Wynn, the Court

of Appeals vacated a conviction for trafficking in cocaine by sale. 204 N.C. App. 371,

696 S.E.2d 203, 2010 WL 2163766, at *3 (2010) (unpublished). Evidence presented

to the trial court in that case showed that, through video and audio surveillance,

police witnessed the defendant selling cocaine to a confidential informant. Id. at *1.

Almost immediately after the sale, police surrounded the defendant and searched his

vehicle. Id. Inside the vehicle, police found cocaine, crack cocaine, cash, digital scales

with white powder residue, and a cell phone. Id. At trial, the defendant did not object

to the sufficiency of the indictment, choosing instead to raise that issue for the first

time when appealing his conviction. Id. at *2. Despite the overwhelming evidence of

the sale presented at trial, the Court of Appeals vacated the defendant’s conviction

for trafficking in cocaine by sale because the indictment failed to allege “the name of

the individual to whom Defendant allegedly sold the cocaine,” even though the State

knew the name of that person. Id. at *3; see also State v. Calvino, 179 N.C. App. 219,

221-22, 632 S.E.2d 839, 842 (2006) (vacating a conviction for sale and delivery of


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                                 Martin, C.J., dissenting



cocaine on similar grounds).

      These decisions clearly illustrate the shortcomings of the common law

jurisdictional rule.    Compared with alternative approaches to reviewing flawed

indictments, as utilized in federal court and the courts of other states, the common

law jurisdictional rule unnecessarily hinders the proper administration of justice.

This Court can—and should—reconsider its rigid adherence to this archaic rule.

Alternatively, I respectfully request that the General Assembly reexamine a rule that

perpetuates misaligned incentives and undermines the criminal justice system.

                                    *       *       *


      In summary, the majority opinion misconstrues and mischaracterizes N.C.G.S.

§ 14-399 to discover an essential element of littering that the text of the statute does

not contain to correct an injustice that does not exist. In so doing, the majority

engages in an amorphous “holistic inquiry” instead of providing lower courts and

practitioners with a meaningful standard for distinguishing elements from

affirmative defenses.     More fundamentally, the Court misses an opportunity to

reevaluate an obsolete rule that detrimentally impacts the administration of justice

in our State. I therefore respectfully dissent.

      Justice NEWBY joins in this dissenting opinion.




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