State v. Powell

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1109
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA

Burke County
v.
No. 10 CRS 52989

RANDAL EUGENE POWELL

Appeal by defendant from judgment entered 21 March 2013 by

Judge Sharon Tracey Barrett in Burke County Superior Court.

Heard in the Court of Appeals 4 February 2014.

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

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

ERVIN, Judge.

Defendant Randal Eugene Powell appeals from a judgment

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

upon his conviction for first degree statutory sex offense in

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

Defendant contends that the trial court lacked jurisdiction to

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

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

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

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

should remain undisturbed.

I. Factual Background

A. Substantive Facts

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

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

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

over the age of eighteen, at all relevant times.

According to Bethany and Tonya, Defendant sexually abused

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

invariably having occurred while their mother was at work.

During the course of these episodes, Defendant would engage in

vaginal intercourse with Bethany while the other children were

bathing or watching television. Although Defendant rubbed his

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

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

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

happened to Bethany. The children never told anyone about the

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

Defendant was doing to her, Defendant intercepted the letter and

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

As a result of conduct unrelated to this case, the

Department of Social Services removed the children from their

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

grandmother in September of 2010. In approximately November of

2010, Bethany and Tonya informed their grandmother that

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

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

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

learning of the children’s allegations, their grandmother called

the police.

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

evaluation. According to the information developed during that

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

buttocks that could have been caused by a large bowel movement

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

with Bethany’s hymen was missing.

B. Procedural History

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

Defendant with first degree statutory rape was issued. On 7

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

indictment charging Defendant with two counts of first degree

statutory sexual offense. Prior to trial, the prosecutor

extended a negotiated plea offer to Defendant under which, in

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

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

had been lodged against Defendant would be consolidated for

judgment and that the sentence imposed upon Defendant would be

selected from the presumptive range. Defendant failed to accept

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

The charges against Defendant came on for trial before the

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

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

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

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

convictions would be consolidated for judgment and that

Defendant would be sentenced at the top of the presumptive

range. At the time that this proposed negotiated plea was

discussed on the record, the trial court informed Defendant

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

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

involve a 276 to 341 month term of imprisonment. After

discussing the proposed plea with his trial counsel, Defendant

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

trial by jury instead.

As the parties engaged in the jury selection process, the

trial court informed them that it had reviewed the indictment in

light of the relevant statutory provisions and determined that

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

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

if convicted, Defendant faced a mandatory minimum term of 300

months imprisonment. In response, Defendant’s trial counsel

indicated that he had understood that Defendant had been charged

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

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

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

included offenses. Although the trial court reiterated its

belief that the charges alleged in the indictment returned

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

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

imposition of a mandatory minimum sentence of 300 months

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

dismissed the first degree statutory sexual offense charge

relating to the accusations involving Bethany for insufficiency

of the evidence. During the jury instruction conference, the

trial court informed counsel for the parties that the jury would

be allowed to consider the issue of whether Defendant had

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

stemming from the accusations involving Tonya given that the

language of the indictment alleged that Defendant had committed

the offense defined in that statutory provision. On 21 March

2013, the jury returned a verdict finding Defendant guilty of

first degree statutory sexual offense stemming from the

accusations involving Tonya. At the conclusion of the ensuing

sentencing hearing, the trial court entered a judgment

sentencing Defendant to a term of 300 to 369 months

imprisonment. Defendant noted an appeal to this Court from the

trial court’s judgment.

II. Legal Analysis

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

Defendant contends that the indictment that had been returned

against him was fatally defective, a fact that deprived the

trial court of jurisdiction over this case. More specifically,

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

statute that Defendant was accused of having violated, resulted

in a fundamental ambiguity in the indictment in question

sufficient to render it fatally defective. We do not find

Defendant’s contention persuasive.

The indictment returned against Defendant alleged that:

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

The indictment specified that Defendant was charged with having

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

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

in the headings placed before each count set out in that

charging instrument that Defendant was being charged with “FIRST

DEGREE SEX OFFENSE.”

“A valid bill of indictment is essential to the

jurisdiction of the Superior Court to try an accused for a

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

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

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

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

criminal charge is constitutionally sufficient if it apprises

the defendant of the charge against him with enough certainty to

enable him to prepare his defense and to protect him from

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

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

charging a statutory offense must allege all of the essential

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

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

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

concise factual statement in each count which, without

allegations of an evidentiary nature, asserts facts supporting

every element of a criminal offense and the defendant’s

commission thereof with sufficient precision clearly to apprise

the defendant or defendants of the conduct which is the subject

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

sufficient in form for all intents and purposes if it expresses

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

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

validity of an indictment is evaluated on appeal utilizing a de

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

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

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

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

person is guilty of sexual offense with a child if the person is

at least 18 years of age and engages in a sexual act with a

victim who is a child under the age of 13 years.” “A person

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the latter, of these two statutory provisions requires proof

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

the commission of the offense.

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

plainly, intelligibly and explicitly set forth every essential

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

accused and the court as to the offense intended to be

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

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

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

indictment complies with this principle necessarily hinges on an

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

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

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

the indictment is sufficient to properly charge defendant with

an offense, the indictment remains valid and the incorrect

statutory reference does not constitute a fatal defect.” 184

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

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

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

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

result, any confusion arising from the caption, the statutory

citations, or other information contained in an indictment aside

from the language in which the offense allegedly committed by

the defendant is described is insufficient to render the

indictment in question fatally defective.

A careful examination of the language contained in the

relevant count of the indictment returned against Defendant

clearly indicates that the grand jury had charged Defendant with

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

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

in question alleges that Defendant “did engage in a sexual

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

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

“asserts facts supporting every element” of the offense defined

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

in the relevant count of the indictment returned against

Defendant might suffice to allege the commission of an act made

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

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

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

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

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

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

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

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

language in which the relevant count of the indictment is

couched clearly indicates that Defendant had ample notice that

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

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

Gen. Stat. § 14-27.4(a)(1).

In seeking to persuade us to reach a different result,

Defendant points to the fact that the indictment indicates that

Defendant had been charged with committing a “First Degree

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

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

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

that Defendant and his trial counsel were initially confused

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

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

According to the principle enunciated in Mueller, the fact that

the indictment might have labelled the offense that Defendant

was charged with committing erroneously does not invalidate the

indictment in question as long as the underlying offense is

clearly alleged in the language of the pertinent count set out

in that criminal pleading. Similarly, given that an indictment

suffices to support a conviction for both a principal offense

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

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

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

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

lesser-included offenses supported by an indictment charging

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

be read to charge multiple offenses does not render that

indictment fatally defective. Moreover, the fact that the

allegations contained in the indictment returned against

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

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

question is invalid given the inclusion of a reference to the

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

that would have been unnecessary in the event that the grand

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

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

grand jury was attempting to charge Defendant with violating

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

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

understood that the indictment charged Defendant with violating

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

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

given that the allegations of the relevant count of the

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

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

indictment returned against Defendant clearly indicated that he

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

and our conclusion that none of the arguments that Defendant has

advanced in an effort to persuade us that the indictment

underlying the trial court’s judgment was fatally defective have

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

from the trial court’s judgment.

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

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

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

hereby does, remain undisturbed.

NO ERROR.

Judges MCGEE and STEELMAN concur.

Report per Rule 30(e).