State v. RankinÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-396

Filed: 2 January 2018

Guilford County, No. 14 CRS 77504

STATE OF NORTH CAROLINA

v.

ANGELA MARIE RANKIN

Appeal by defendant from judgment entered 7 July 2016 by Judge Michael D.

Duncan in Guilford County Superior Court. Heard in the Court of Appeals 19 October

2017.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy
Bircher, for the State.

Sarah Holladay for defendant-appellant.

DAVIS, Judge.

In this appeal, we must determine whether the defendant’s indictment for

felony littering of hazardous waste was facially valid. Because we conclude that her

indictment failed to contain an essential element of the crime for which she was

charged, we vacate her conviction.

Factual and Procedural Background

The State presented evidence tending to establish the following facts: On 27

April 2014, Angela Marie Rankin (“Defendant”) was searching for scrap metal to sell.
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Opinion of the Court

She noticed a metal tank containing fuel oil near a residential driveway on North

Elam Avenue in Greensboro, North Carolina. Upon attempting to move the tank,

Defendant realized some amount of “home heating fuel” was contained inside of it.

She drained the contents of the tank onto the ground so that the tank “wouldn’t be as

heavy.”

The metal tank was reported stolen to the City of Greensboro Police

Department. The Division of Public Health of the Guilford County Department of

Health and Human Services also received a report of “a fuel release that impacted a

waterway and soil and roadway inside the Guilford County limits.” Upon

investigation, it was discovered that the heating oil from the metal tank was the

cause of the contamination in the area, and the oil was deemed “a hazardous

substance for disposal . . . .”

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 Guilford County Superior Court before the

Honorable Michael D. Duncan. Defendant moved to dismiss all charges at the close

of the evidence, and the trial court dismissed the conspiracy charge.

On 6 July 2016, the jury found Defendant guilty of felony littering of hazardous

waste and not guilty of misdemeanor larceny. On 7 July 2016, the trial court

sentenced Defendant to 5 to 15 months imprisonment but suspended the sentence

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Opinion of the Court

and placed her on supervised probation for 18 months. Defendant filed a timely notice

of appeal.

Analysis

I. Appellate Jurisdiction

As an initial matter, we must determine whether we possess jurisdiction over

this appeal. Defendant’s notice of appeal did not explicitly state that she was

appealing the trial court’s judgment to this Court as required by Rule 4(b) of the

North Carolina Rules of Appellate Procedure. Defendant has filed a petition for a

writ of certiorari in the event we find her notice of appeal was insufficient to confer

jurisdiction upon this Court based on her failure to expressly state that her appeal

was to this Court as required by Rule 4(b).

Because this Court is the only court possessing jurisdiction to hear her appeal,

it can be fairly inferred that Defendant intended to appeal to this Court. See State v.

Sitosky, 238 N.C. App. 558, 560, 767 S.E.2d 623, 624-25 (2014), disc. review denied,

368 N.C. 237, 768 S.E.2d 847 (2015) (holding that appellate jurisdiction existed over

defendant’s appeal despite her failure to designate court to which appeal was being

taken in notice of appeal). Moreover, the State has not suggested that it was misled

due to this deficiency in her notice of appeal.

Thus, Defendant’s failure to designate this Court in her notice of appeal does

not warrant dismissal of this appeal. See State v. Ragland, 226 N.C. App. 547, 553,

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Opinion of the Court

739 S.E.2d 616, 620 (denying defendant’s petition for certiorari where “defendant’s

failure to serve the notice of appeal and his mistake in failing to name this Court in

his notice of appeal [did] not warrant dismissal”), disc. review denied, 367 N.C. 220,

747 S.E.2d 548 (2013). Accordingly, we deny Defendant’s petition for writ of certiorari

as moot and proceed to consider the merits of her appeal.

II. Validity of Indictment

Our Supreme Court has made clear that “[a]n indictment must allege all the

essential elements of the offense endeavored to be charged . . . .” State v. Spivey, 368

N.C. 739, 742, 782 S.E.2d 872, 874 (2016) (citation and quotation marks omitted).

However, an indictment is not required to reference exceptions to the offense. State

v. Mather, 221 N.C. App. 593, 598, 728 S.E.2d 430, 434 (2012).

N.C. Gen. Stat. § 14-399(a) states, in pertinent part, as follows:

(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 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;

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Opinion of the Court

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. Gen. Stat. § 14-399(a) (2015) (emphasis added).

Defendant’s indictment alleged, in relevant part, the following:

The jurors for the State upon their oath present that
on . . . the date of offense shown and in the county named
above the defendant named above 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 State does not dispute the fact that the indictment failed to allege that

Defendant had not discarded litter on property “designated by the State or political

subdivision thereof for the disposal of garbage and refuse[ ] and . . . [was] authorized

to use the property for this purpose” as set out in N.C. Gen. Stat. § 14-399(a)(1).1

Thus, the sole issue in this appeal is whether subsection (a)(1) is an essential element

under § 14-399(a) or, alternatively, it is merely an exception.

1 Defendant’s indictment did, however, make specific reference to subsection (a)(2).

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Opinion of the Court

In State v. Connor, 142 N.C. 700, 55 S.E. 787 (1906), our Supreme Court

explained the difference between an essential element to an offense (which must be

alleged in the indictment) and an exception to the offense (which need not be alleged).

It is well established that when a statute creates a
substantive criminal offense, the description of the same
being complete and definite, and by subsequent clause,
either in the same or some other section, or by another
statute, a certain case or class of cases is withdrawn or
excepted from its provisions, these excepted cases need not
be negatived in the indictment, nor is proof required to be
made in the first instance on the part of the prosecution.

In such circumstance, a defendant charged with the crime,
who seeks protection by reason of the exception, has the
burden of proving that he comes within the same.

....

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.

....

We find in the acts of our Legislature two kinds of
provisos—the one in the nature of an exception, which
withdraws the case provided for from the operation of the
act, the other adding a qualification, whereby a case is

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Opinion of the Court

brought within that operation. Where the proviso is of the
first kind it is not necessary in an indictment, or other
charge, founded upon the act, to negative the proviso; but
if the case is within the proviso it is left to the defendant to
show that fact by way of defense. But in a proviso of the
latter description the indictment must bring the case
within the proviso. For, in reality, that which is provided
for, in what is called a proviso to the act, is part of the
enactment itself.

Id. at 701-03, 55 S.E. at 788-89 (internal citations and quotation marks omitted).

Over the past century since Connor was decided, our Supreme Court has

consistently held that an indictment must include all the essential elements of the

offense charged against the defendant. See, e.g., State v. Brice, __ N.C. __, __, __

S.E.2d __, __, slip op. at 9 (filed November 3, 2017) (No. 244PA16) (“To be sufficient

under our Constitution, an indictment must allege lucidly and accurately all the

essential elements of the offense endeavored to be charged.” (citation and quotation

marks omitted)); State v. Murrell, __ N.C. __, __, 804 S.E.2d 504, 508 (2017) (“In order

to satisfy the relevant statutory requirements, including the provision of adequate

notice, an indictment must allege lucidly and accurately all the essential elements of

the offense endeavored to be charged.” (citation and quotation marks omitted)); State

v. Williams, 318 N.C. 624, 631, 350 S.E.2d 353, 357 (1986) (“An indictment that does

not accurately and clearly allege all of the elements of the offense is inadequate to

support a conviction.”); State v. McBane, 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969)

(“The warrant or indictment must charge all the essential elements of the alleged

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Opinion of the Court

criminal offense. Nothing in G.S. 15-153 or in G.S. 15-155 dispenses with the

requirement that the essential elements of the offense must be charged.” (internal

citation omitted)); State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953) (“The

authorities are in unison that an indictment, whether at common law or under a

statute, to be good must allege lucidly and accurately all the essential elements of the

offense endeavored to be charged.”); State v. Johnson, 188 N.C. 591, 593, 125 S.E.

183, 184 (1924) (“Even under a statute containing a proviso or an exception if the

terms of the proviso are but a part of the description of the offense itself, they must

be negatived in the indictment or warrant, and as a general rule, such negative

averments must be proved by the prosecution.”).2

The offense of littering under N.C. Gen. Stat. § 14-399(a) is not a “complete and

definite” crime absent consideration of subsections (a)(1) and (a)(2). Connor, 142 N.C.

at 701, 55 S.E. at 788. Under § 14-399(a), the crime of littering is premised upon a

defendant’s act of disposing of or discarding trash in any place other than a waste

receptacle (as provided for in subsection (a)(2)) or on property designated by the city

or state for the disposal of garbage and refuse (as provided for in subsection (a)(1)).

The text of the statutory language in § 14-399(a) prior to the word “except” does not

2 While the dissent cites several cases for the proposition that an indictment need not mirror
the precise language contained in the statute, see, e.g., State v. Simpson, 235 N.C. App. 398, 400-01,
763 S.E.2d 1, 3 (2014), that principle does not obviate the requirement that every essential element of
the crime be alleged therein.

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Opinion of the Court

state a crime when that language is read in isolation. Rather, subsections (a)(1) and

(a)(2) are inseparably intertwined with the language preceding them.

In State v. Hinkle, 189 N.C. App. 762, 659 S.E.2d 34 (2008), this Court

expressly addressed the issue of whether subsection (a)(2) constituted an essential

element — rather than merely an exception — under § 14-399(a). The defendants in

Hinkle were employees of the People for the Ethical Treatment of Animals and were

tasked with the euthanasia of unwanted animals in the Bertie County animal shelter.

They subsequently placed several dead animals in heavy duty trash bags, which they

deposited in a private dumpster behind a grocery store. Law enforcement officers

observed the defendants placing the trash bags in the dumpster and arrested them.

The defendants were charged with multiple counts of cruelty to animals and with

littering but were only convicted of the offense of littering under N.C. Gen. Stat. § 14-

399(a). Id. at 763-65, 659 S.E.2d at 35-36.

On appeal, the defendants argued that the trial court had erred by denying

their motion to dismiss the littering charge because the State failed to prove that the

dumpster in question was not a “litter receptacle” as described by § 14-399(a)(2). Id.

at 768, 659 S.E.2d at 37. The State, conversely, argued that it did not bear the burden

of proving the inapplicability of § 14-399(a)(2) because this subsection was “not a part

of the statutory definition of littering and instead [wa]s an exception to the crime of

littering.” Id. at 768, 659 S.E.2d at 38 (quotation marks omitted). This Court

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Opinion of the Court

discussed the difference between essential elements of a criminal offense and

exceptions to the offense.

[W]e reiterate that there are no magic words for creating
an exception to an offense. Neither is placement of a phrase
controlling. The determinative factor is the nature of the
language in question. Is it part of the definition of the crime
or does it withdraw a class from the crime?

Id. at 769, 659 S.E.2d at 38 (internal citations and quotation marks omitted).

We then examined the language of § 14-399(a) and determined that subsection

(a)(2) was, in fact, an essential element of the offense of littering. In so holding, we

stated as follows:

Therefore, we examine the nature of the littering statute’s
language and ask whether “[i]nto a litter receptacle” is part
of the definition of the crime or whether it withdraws a
class from the crime. It is clear that “[i]nto a littering
receptacle” is part of the definition of the crime. If we read
section (a) up to the word “except,” then section (a) does not
describe the complete crime of littering. Without the
“except . . . [i]nto a litter receptacle” language, placing a
broken rubber band into a trash can at our Court would be
littering. Likewise, throwing a spent coffee cup into a trash
can at the mall would be littering. Such a reading of the
statute is inconsistent with both the plain language of the
statute and common sense. Essential to the crime of
littering is that the litter be placed somewhere other than a
litter receptacle.

Id. (emphasis added). We concluded that “the trial court erred by denying defendants’

motion to dismiss the littering charge because the State failed to present substantial

evidence that the dumpster was not a litter receptacle.” Id.

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Opinion of the Court

Thus, Hinkle stands for the proposition that subsection (a)(2) is an essential

element of N.C. Gen. Stat. § 14-399(a). Because 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.

The dissent incorrectly characterizes the conclusion in Hinkle that subsection

(a)(2) is an essential element of N.C. Gen. Stat. § 14-399(a) as “obiter dictum.” Our

Supreme Court has defined obiter dictum as “[l]anguage in an opinion not necessary

to the decision . . . .” Trs. of Rowan Tech. Coll. v. J. Hyatt Hammond Assocs., Inc.,

313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985) (citations omitted). Based on that

definition, this Court’s determination in Hinkle that subsection (a)(2) constitutes an

essential element of this offense is clearly not dicta. To the contrary, it forms the

holding of the case, and we are therefore bound by it. See In re Civil Penalty, 324

N.C. at 384, 379 S.E.2d at 37 (“Where a panel of the Court of Appeals has decided the

same issue, albeit in a different case, a subsequent panel of the same court is bound

by that precedent, unless it has been overturned by a higher court.” (citations

omitted)).

Moreover, in addition to the fact that we are bound to follow our prior decision

in Hinkle, we believe that the analysis set forth therein is consistent with the

applicable case law in North Carolina on this subject. We find our prior decisions in

State v. Trimble, 44 N.C. App. 659, 262 S.E.2d 299 (1980) and State v. Brown, 56 N.C.

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Opinion of the Court

App. 228, 287 S.E.2d 421 (1982) to be instructive on the issue of differentiating

between essential elements and exceptions under a statute. Each of these cases

provide clear examples of statutory provisions that — unlike in the present case —

simply carve out an exception to a crime that was fully defined elsewhere in the

statute.

In Trimble, the defendant was convicted under N.C. Gen. Stat. § 14-401, which

stated as follows:

§ 14-401. Putting poisonous foodstuffs, etc., in certain
public places, prohibited — It shall be unlawful for any
person, firm or corporation to put or place any strychnine,
other poisonous compounds or ground glass on any beef or
other foodstuffs of any kind in any public square, street,
lane, alley or on any lot in any village, town or city or on
any public road, open field, woods or yard in the country.
Any person, firm or corporation who violates the provisions
of this section shall be liable in damages to the person
injured thereby and also shall be guilty of a misdemeanor,
and upon conviction shall be fined or imprisoned, at the
discretion of the court. This section shall not apply to the
poisoning of insects or worms for the purpose of protecting
crops or gardens by spraying plants, crops or trees nor to
poisons used in rat extermination.

Id. at 664, 262 S.E.2d at 302 (citation and quotation marks omitted).

The defendant argued that his indictment was defective because it failed to

include an assertion that his actions did not fall under the exception for “protecting

crops or gardens by spraying plants, crops or trees [or] poisons used in rat

extermination.” Id. (emphasis omitted). On appeal, we held that “the insect control

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Opinion of the Court

and rat extermination exception” was not an essential element of the crime. Id. at

666, 262 S.E.2d at 303-04.

In Brown, the defendant was convicted of the crime of larceny by an employee.

Brown, 56 N.C. App. at 229, 287 S.E.2d at 423. N.C. Gen. Stat. § 14-74, the statute

under which the defendant was charged, provided as follows:

If any servant or other employee, to whom any money,
goods or other chattels . . . by his master shall be delivered
safely to be kept to the use of his master, shall withdraw
himself from his master and go away with such money,
goods, or other chattels . . . with intent to steal the same
and defraud his master thereof, contrary to the trust and
confidence in him reposed by his said master; . . . the
servant so offending shall be punished as a Class H felon:
Provided, that nothing contained in this section shall
extend to . . . servants within the age of 16 years.

Id. at 229, 287 S.E.2d at 422-23 (citation and quotation marks omitted and emphasis

added).

The defendant argued on appeal that his indictment was defective because it

failed to allege that he was over the age of 16. Id. at 230, 287 S.E.2d at 423. In

rejecting his argument, this Court held as follows:

Upon examining G.S. 14-74, we conclude that the
phrase in question withdraws a class of defendants from
the crime of larceny by an employee. The language before
the phrase completely and definitely defines the offense.
Servants within 16 years of age are excepted from that
definition. Because the phrase creates an exception to G.S.
14-74, we hold that age is not an essential element which
the indictment must allege and the State initially prove.

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Opinion of the Court

Id. at 230-31, 287 S.E.2d at 423 (emphasis omitted and added).

Trimble and Brown each provide examples of statutes that state “complete and

definite” crimes before then listing exceptions to those crimes. In Trimble, N.C. Gen.

Stat. § 14-401 criminalized the placement of poison or ground glass on “beef or other

foodstuffs” — a prohibition that clearly articulated a crime capable of being

committed in a wide variety of ways wholly unrelated to the use of poison to

exterminate rats, insects, or worms. In Brown, N.C. Gen. Stat. § 14-74 made it a

crime for an employee to steal from his employer property that had been entrusted to

him. The crime described was capable of ready application to employees of all ages,

but the statute carved out an exception for persons sixteen years of age or younger.

Thus, it is clear that the statutory provisions at issue in Trimble and Brown

were merely exceptions to crimes rather than essential elements of crimes. It is

equally apparent that the converse is true here. By enacting § 14-399(a), the General

Assembly was not attempting to prohibit individuals from disposing of trash outside

of their own property. Instead, it sought to make such disposal illegal only in places

other than (1) a waste receptacle; or (2) a city or county dump.3 Simply put, the crime

of littering does not occur until litter is placed where it ought not be.

3 The dissent cites State v. Hales, 256 N.C. 27, 122 S.E.2d 768 (1961), for the proposition that
“it is within the power of the Legislature to declare an act criminal . . . .” Id. at 30, 122 S.E.2d at 771
(citation omitted). But the dissent fails to mention our Supreme Court’s statement in that same
opinion that “the act of the Legislature declaring what shall constitute a crime must have some
substantial relation to the ends sought to be accomplished.” Id. at 30, 122 S.E.2d at 770 (citation
omitted).

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Opinion of the Court

Any characterization of the text of § 14-399(a) prior to the word “except” as

stating a “complete and definite” crime would lead to absurd results. In addition to

the examples discussed above from our decision in Hinkle, under such an

interpretation of the statute 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. It strains credulity to suggest that such

outcomes were intended by the General Assembly in enacting § 14-399(a). See

Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 216, 388 S.E.2d 134, 141 (1990)

(“A statute is presumed not to have been intended to produce absurd consequences,

but rather to have the most reasonable operation that its language permits.”); Sutton

v. Aetna Cas. & Sur. Co., 325 N.C. 259, 265, 382 S.E.2d 759, 763 (1989) (“[T]he Court

will, whenever possible, interpret a statute so as to avoid absurd consequences.”).

Thus, Defendant’s indictment was defective due to its failure to contain an

essential element of the offense of littering. Accordingly, her conviction must be

vacated.

Conclusion

For the reasons stated above, we vacate Defendant’s conviction.

VACATED.

Judge ZACHARY concurs.

Judge BERGER dissents in a separate opinion.

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 No. COA17-396 – State v. Rankin

BERGER, Judge, dissenting in separate opinion.

I respectfully dissent.

“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 [her] guilt or innocence,

and to give authority to the court to render a valid judgment.” State v. Marshall, 188

N.C. App. 744, 748, 656 S.E.2d 709, 712 (citations and internal quotation marks

omitted), disc. review denied, 362 N.C. 368, 661 S.E.2d 890 (2008). “The purpose of

an indictment is to inform a party so that [she] may learn with reasonable certainty

the nature of the crime of which [she] is accused.” State v. Simpson, 235 N.C. App.

398, 400, 763 S.E.2d 1, 3 (2014) (citation, quotation marks, brackets, and ellipses

omitted).

An indictment “is sufficient in form for all intents and purposes if it expresses

the charge against the defendant in a plain, intelligible, and explicit manner.” N.C.

Gen. Stat. § 15-153 (2015). “An indictment must contain ‘[a] plain and concise factual

statement in each count which . . . asserts facts supporting every element of a criminal

offense and the defendant’s commission thereof with sufficient precision clearly to

apprise the defendant . . . of the conduct which is the subject of the accusation.’ ”

State v. Rodriguez, 192 N.C. App. 178, 183, 664 S.E.2d 654, 658 (2008) (quoting N.C.

Gen. Stat. § 15A-924(a)(5) (2007)). The purpose of this requirement is:

(1) such certainty in the statement of the accusation as will
identify the offense with which the accused is sought to be
charged; (2) to protect the accused from being twice put in
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BERGER, J., dissenting

jeopardy for the same offense; (3) to enable the accused to
prepare for trial, and (4) to enable the court, on conviction
or plea of nolo contendere or guilty to pronounce sentence
according to the rights of the case.

State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953) (citations omitted).

“The general rule in this State . . . is that an indictment for a statutory offense

is sufficient, if the offense is charged in the words of the statute, either literally or

substantially, or in equivalent words.” Simpson, 235 N.C. App. at 400-01, 763 S.E.2d

at 3 (citation and quotation marks omitted).

To determine whether this indictment is sufficient, we must examine N.C. Gen.

Stat. § 14-399 and the law that distinguishes between elements of an offense and

exceptions to that offense. It is well established that each essential element must be

alleged in an indictment. While “the State bears the burden of production and

persuasion as to each element of a crime, ‘exceptions’ to crimes are not considered

elements for this purpose and are instead considered to be affirmative defenses.”

State v. Hinkle, 189 N.C. App. 762, 768, 659 S.E.2d 34, 38 (2008). A statutory

exception that withdraws a certain case, or class of cases, from its provisions need

not be included in an indictment for that indictment to be valid. State v. Connor, 142

N.C. 700, 701, 55 S.E. 787, 788 (1906).

Here, Defendant was charged under Subsection (e) of N.C. Gen. Stat. § 14-399,

which elevates the crime of littering to a Class I felony if the litter disposed of is

hazardous waste. The crime of littering is defined, in relevant part, as follows:

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BERGER, J., dissenting

(a) No person . . . 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
property or private property not owned by the person
within this State . . . including any public highway . . .
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. Gen. Stat. § 14-399(a) (2015) (emphasis added).

The indictment filed against Defendant for her alleged violation of Subsection

(e) stated:

The jurors for the State upon their oath present that on or
the date of offense shown and in the county named above
the defendant named above 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.

It is clear from the language of the indictment that it contained no allegation

of whether the hazardous waste was disposed of on property “designated by the State

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BERGER, J., dissenting

or political subdivision thereof for the disposal of garbage or refuse” or whether

Defendant was “authorized to use the property for this purpose.” See G.S. § 14-

399(a)(1). If Section 14-399(a)(1) is an essential element, then the State was required

to allege that Defendant was not excluded from criminal liability because she either

disposed of the waste in a place not designated for such disposal or did dispose of the

waste on such designated property but was not authorized to do so. The indictment

alleged neither.

In determining whether Subsection (a)(1) is an element or an exception, we

must ask, “[i]s it part of the definition of the crime or does it withdraw a class from

the crime?” State v. Brown, 56 N.C. App. 228, 230, 287 S.E.2d 421, 423 (1982). This

Court, in State v. Hinkle, 189 N.C. App. at 769, 659 S.E.2d at 38, stated that the

“ ‘except . . . [i]nto a litter receptacle’ ” language in Section 14-399(a)(2) was an

essential element. The Hinkle Court reasoned that, without this language,

placing a broken rubber band into a trash can at our Court
would be littering. Likewise, throwing a spent coffee cup
into a trash can at the mall would be littering. Such a
reading of the statute is inconsistent with both the plain
language of the statute and common sense.4

Id.

4 It is unquestionable that “[i]t is within the power of the Legislature to declare an act
criminal.” State v. Hales, 256 N.C. 27, 30, 122 S.E.2d 768, 771 (1961). See also Mitchell v. Financing
Authority, 273 N.C. 137, 144, 159 S.E.2d 745, 750 (1968) (noting that “so long as an act is not
[constitutionally] forbidden, the wisdom of the enactment is exclusively a legislative decision”).

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BERGER, J., dissenting

However, we are not bound by the language in Hinkle stating that Subsection

(a)(2) is an element rather than an exception.5 In Hinkle, the defendants were

appealing the denial of a motion to dismiss a littering charge because the evidence

tended to show that the defendants had disposed of dead animals in a dumpster. Id.

at 765-66, 659 S.E.2d at 36. The Hinkle defendants had argued on appeal that a

dumpster was a “litter receptacle,” and, because they had put their litter in a litter

receptacle, Subsection (a)(2) excepted them from criminal liability. Id. “The State

countered that because the dumpster was a private receptacle, defendants littered by

placing dead animals into the dumpster.” Id. at 766, 659 S.E.2d at 36. Hinkle turned

on whether a dumpster was a litter receptacle, and this Court held that it was. Id.

at 767, 659 S.E.2d at 37. The general expressions that followed were where the

Hinkle Court considered whether Subsection (a)(2) was an essential element, and

which party should bear the burden of proof, but neither of these considerations were

necessary to the decision of the question involved.

“If the statutory language is clear and unambiguous, the court eschews

statutory construction in favor of giving the words their plain and definite meaning.”

5 “Language in an opinion not necessary to the decision is obiter dictum and later decisions are
not bound thereby. As our Supreme Court has explained, general expressions in every opinion are to
be taken in connection with the case in which those expressions are used; if they go beyond the case,
they may be respected, but ought not to control the judgment in a subsequent suit where the very point
is presented for decision.” State v. Breathette, 202 N.C. App. 697, 701, 690 S.E.2d 1, 4 (citations,
internal quotation marks, and brackets omitted), disc. review denied, 364 N.C. 242, 698 S.E.2d 656
(2010).

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BERGER, J., dissenting

State v. Beck, 359 N.C. 611, 614, 614 S.E.2d 274, 277 (2005) (citation omitted). “We

presume that the use of a word in a statute is not superfluous and must be accorded

[its plain] meaning, if possible.” State v. Moraitis, 141 N.C. App. 538, 541, 540 S.E.2d

756, 757-58 (2000). “Where a term used in a statute has obtained long-standing legal

significance, we presume that the legislature intended that significance to attach to

the use of the term, absent an indication to the contrary.” Id. at 541, 540 S.E.2d at

758. We “are without power to interpolate, or superimpose, provisions and

limitations not contained” within the language of the statute. State v. Wainwright,

240 N.C. App. 77, 81, 770 S.E.2d 99, 103 (2015) (citation and quotation marks

omitted). “A statute that is clear on its face must be enforced as written.” Moraitis,

141 N.C. App. at 541, 540 S.E.2d at 757.

Our legislature is given “considerable latitude in defining elements of a crime

and in specifying defenses to that crime.” State v. Trimble, 44 N.C. App. 659, 665-66,

262 S.E.2d 299, 303 (1980) (citation omitted). Furthermore, “to litter” means “to

scatter about carelessly,”6 and this is essentially what Section 14-399(a), up to the

word “except,” criminalizes. Subsection (a)(1) merely states that when one litters on

property “designated by the State or political subdivision thereof for the disposal of

6 Litter, Webster’s New World College Dictionary (5th ed. 2014).

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BERGER, J., dissenting

garbage and refuse, and the person is authorized to use the property for this purpose,”

then that person is excepted from criminal liability.7

This Court considered this same question in State v. Trimble and applied the

following standard in determining whether an exception to a criminal statute should

be regarded as an essential element or as an affirmative defense:

[W]here, as in the instant case, the General Assembly has
left open the question of whether a factor is to be an
element of the crime or a defense thereto, it is more
substantively reasonable to ask what would be a “fair”
allocation of the burden of proof, in light of due process and
practical considerations, and then assign as “elements” and
“defenses” accordingly, rather than to mechanically hold
that a criminal liability factor is an element without regard
to the implications in respect to the burden of proof.

Trimble, 44 N.C. App. at 666, 262 S.E.2d at 303. This Court concluded the statutory

exception it examined was neither an element nor a defense, but found that it was a

“hybrid” factor. Id. It held that for an exception such as this, “the State has no initial

burden of producing evidence to show that defendant’s actions do not fall within the

exception.” Id. at 666, 262 S.E.2d at 303-04. “[H]owever, once the defendant, in a

non-frivolous manner, puts forth evidence to show that his conduct is within this

exception, the burden of persuading the trier of fact that the exception does not apply

falls upon the State.” Id. at 666, 262 S.E.2d at 304. The Trimble Court concluded

7 The legal commentary North Carolina Crimes: A Guidebook on the Elements of Crime
classified N.C. Gen. Stat. § 14-399 (a)(1) and (2) both as exceptions, not elements, until Hinkle called
that into question. Jessica Smith, N.C. Inst. Of Gov't, North Carolina Crimes: A Guidebook on the
Elements of Crime 404 (6th ed. 2007).

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BERGER, J., dissenting

that “it follows from this reasoning that an indictment or warrant for an arrest need

not set forth a charge that defendant's conduct is not within the exception to the

statute.” Id. (citation omitted).

Trimble is analogous to the case sub judice. In applying the standard used in

Trimble, we must conclude that Section 14-399(a)(1) is a “hybrid factor” or affirmative

defense, not an essential element. Consequently, the fair allocation of the burden of

proof must fall to Defendant. The State had no initial burden to prove that Defendant

had not disposed of the oil on property designated for the disposal of garbage and

refuse, or whether Defendant was not authorized to do so. Following the reasoning

in Trimble, if Defendant were able, in a non-frivolous manner, to put forth evidence

that shows she disposed of the oil on property designated for such disposal, and that

she was authorized to do so, then the State would bear the burden of persuading the

trier of fact that the exception does not apply.

The State was not required to allege whether the property on which Defendant

disposed of the oil was designated for such disposal or whether Defendant was

authorized. The indictment clearly identified the offense charged, protected

Defendant from double jeopardy, enabled Defendant to prepare for trial, and enabled

the court to pronounce sentence. Therefore, the indictment charging Defendant with

littering of hazardous waste was sufficient to give the trial court jurisdiction over her

case, and I would find no error.

8