State v. Newborn

IN THE SUPREME COURT OF NORTH CAROLINA

No. 330PA21

Filed 16 June 2023

STATE OF NORTH CAROLINA

v.
CORDERO DEON NEWBORN

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 279 N.C. App. 42, 864 S.E.2d 752 (2021), vacating in part a

judgment entered on 25 October 2019 by Judge Thomas H. Lock in Superior Court,

Haywood County. Heard in the Supreme Court on 26 April 2023.

Joshua H. Stein, Attorney General, by Kristin J. Uicker, Assistant Attorney
General, for the State-appellant.

Joseph P. Lattimore for defendant-appellee.

NEWBY, Chief Justice.

In this case we determine whether a single indictment charging defendant

with possession of a firearm by a felon and two related offenses in violation of

N.C.G.S. § 14-415.1(c), which requires separate indictments, is fatally defective. The

Court of Appeals vacated defendant’s conviction for possession of a firearm by a felon

because the State failed to obtain a separate indictment for that offense under the

unambiguous, mandatory language of N.C.G.S. § 14-415.1(c). This Court’s well-

established precedent provides, however, that a violation of a mandatory separate

indictment provision is not fatally defective. We follow our long-standing principle of
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Opinion of the Court

substance over form when analyzing the sufficiency of an indictment. Because the

indictment here alleged facts to support the essential elements of the crimes with

which defendant was charged such that defendant had sufficient notice to prepare

his defense, the indictment is valid. Accordingly, we reverse the decision of the Court

of Appeals.

On 25 April 2018, while patrolling U.S. Highway 19, Sergeant Ryan Flowers

of the Maggie Valley Police Department ran a Division of Motor Vehicles (DMV)

record search of defendant’s license plate. DMV records revealed that defendant’s

driver’s license had been permanently revoked and that he had four pending counts

of misdemeanor driving while license revoked–not impaired revocation. Sergeant

Flowers stopped defendant’s vehicle. While communicating with defendant and the

passenger, Sergeant Flowers smelled marijuana emanating from defendant’s vehicle.

Sergeant Flowers asked defendant where the marijuana was located in the vehicle;

defendant replied that there was none in the vehicle but admitted that he and the

passenger had smoked marijuana “a little earlier.” Sergeant Flowers also asked

defendant if there were any firearms in the vehicle, and defendant responded no.

Based on the smell of marijuana and defendant’s admission that he had

recently smoked marijuana, Sergeant Flowers decided to search defendant’s vehicle

and called Sergeant Jeff Mackey for backup. During the search, Sergeant Mackey

located a small firearm beneath the passenger seat and arrested the passenger for

carrying a concealed weapon in violation of N.C.G.S. § 14-269(a). See

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Opinion of the Court

N.C.G.S. § 14-269(a) (2021). Sergeant Flowers asked defendant if there were other

firearms in the vehicle, and defendant stated there were not. The officers’ further

search of the vehicle, however, revealed a second firearm located between the center

console and the driver’s seat. Accordingly, Sergeant Flowers arrested defendant for

misdemeanor carrying a concealed weapon in violation of N.C.G.S. § 14-269(a). A

dispatcher later informed the officers that defendant was a convicted felon.

On 6 August 2018, in a single indictment, defendant was indicted for

possession of a firearm by a felon, possession of a firearm with an altered or removed

serial number, and carrying a concealed weapon. Defendant did not challenge the

indictment before the trial court. The jury found defendant guilty of all three offenses.

Defendant appealed.

On appeal, the Court of Appeals vacated defendant’s conviction for possession

of a firearm by a felon because the State failed to obtain a separate indictment for

that offense in violation of N.C.G.S. § 14-415.1(c). State v. Newborn, 279 N.C. App.

42, 47, 864 S.E.2d 752, 757 (2021); see N.C.G.S. § 14-415.1(c) (2021). In vacating

defendant’s conviction, the Court of Appeals relied on its previous decision in State v.

Wilkins, 225 N.C. App. 492, 737 S.E.2d 791 (2013), in which it held that

N.C.G.S. § 14-415.1(c) unambiguously “mandates that a charge of [p]ossession of a

[f]irearm by a [f]elon be brought in a separate indictment from charges related to it.”

Wilkins, 225 N.C. App. at 497, 737 S.E.2d at 794. The State, however, urged the Court

of Appeals to rely on this Court’s decision in State v. Brice, 370 N.C. 244, 806 S.E.2d

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Opinion of the Court

32 (2017). In that case this Court held that a similar special indictment statute for

habitual offender crimes was not jurisdictional in nature, and a failure to obtain a

separate indictment did not deprive the trial court of jurisdiction. Brice, 370 N.C. at

253, 806 S.E.2d at 38. The Court of Appeals declined to follow Brice, reasoning that

Brice involved a completely different special indictment statute, not the statute at

issue in the present case. Newborn, 279 N.C. App. at 47, 864 S.E.2d at 757. Instead,

the Court of Appeals applied its own precedent from Wilkins because that case dealt

with the same statute. Id. Thus, the Court of Appeals held that “the State’s failure to

obtain a separate indictment for the offense of possession of a firearm by a felon, as

mandated by N.C.G.S. § 14-415.1(c), rendered the indictment fatally defective and

invalid as to that charge.” Id.

The State petitioned this Court for discretionary review to determine whether

the Court of Appeals erred by not following this Court’s decision in Brice. We allowed

the State’s petition.

This Court reviews the sufficiency of an indictment de novo. State v. White, 372

N.C. 248, 250, 827 S.E.2d 80, 82 (2019). Defendant failed to challenge the facial

validity of the indictment at the trial court. Defendant argues, however, that because

the indictment violates the statutory mandate in N.C.G.S. § 14-415.1(c), it is fatally

defective, and thus the trial court lacks subject matter jurisdiction over the offense.

It is well-settled that a defendant can raise a claim that the trial court lacked subject

matter jurisdiction at any time. See State v. Campbell, 368 N.C. 83, 86, 772 S.E.2d

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Opinion of the Court

440, 443 (2015). Therefore, we must determine whether the indictment charging

defendant with possession of a firearm by a felon, plus two related offenses, is fatally

defective under N.C.G.S. § 14-415.1(c), depriving the trial court of jurisdiction.

Section 14-415.1 prohibits felons from possessing or purchasing firearms.

N.C.G.S. § 14-415.1(a) (2021). Subsection 14-415.1(c) requires that “[t]he indictment

charging the defendant under the terms of this section shall be separate from any

indictment charging him with other offenses related to or giving rise to a charge

under this section.” N.C.G.S. § 14-415.1(c). In other words, when a defendant is

charged with possession of a firearm by a felon in addition to a separate related

offense, such as carrying a concealed weapon, N.C.G.S. § 14-415.1(c) requires that the

State obtain a separate indictment for the possession of a firearm by a felon offense.

Generally, the purpose of an indictment is to put the defendant on notice of the

crime being charged and to protect the defendant from double jeopardy. State v.

Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981). Therefore, to determine

the facial validity of an indictment, “the traditional test” is whether the indictment

alleges facts supporting the essential elements of the offense to be charged. Brice, 370

N.C. at 249–50, 806 S.E.2d at 36–37; see also N.C.G.S. § 15A-924(a)(5) (2021)

(mandating that an indictment must include “[a] plain and concise factual statement

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

. . with sufficient precision clearly to apprise the defendant . . . of the conduct which

is the subject of the accusation”). Accordingly, “a defendant can obtain sufficient

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Opinion of the Court

notice of the exact nature of the charge that has been lodged against him or her

through compliance with the traditional [pleading] requirements set out in

N.C.G.S. § 15A-924(a)(5) without the necessity for compliance with the separate

indictment provisions of N.C.G.S. § [14-415.1(c)].” Id. at 253, 806 S.E.2d at 38.

Additionally, obtaining a separate indictment under N.C.G.S. § 14-415.1(c) “is not

absolutely necessary to ensure the absence of prejudice to defendant.” Id.

Moreover, it is well-established that a court should not quash an indictment

due to a defect concerning a “mere informality” that does not “affect the merits of the

case.” State v. Brady, 237 N.C. 675, 679, 75 S.E.2d 791, 793 (1953). Indeed, this Court

opined forty-five years ago in State v. House, 295 N.C. 189, 244 S.E.2d 654 (1978),

that to quash an indictment because of an informality would “paramount mere form

over substance,” which this Court explicitly declined to do. House, 295 N.C. at 203,

244 S.E.2d at 662. This Court in House further explained the principle of substance

over form, stating that “provisions which are a mere matter of form, or which are not

material, do not affect any substantial right, and do not relate to the essence of the

thing to be done . . . are considered to be directory.” Id. at 203, 244 S.E.2d at 661–62

(quoting 73 Am. Jur. 2d Statutes § 19 (1974)). In other words, failure to comply with

statutory requirements regarding the form of an indictment rather than its substance

is not prejudicial to a defendant. See State v. Russell, 282 N.C. 240, 248, 192 S.E.2d

294, 299 (1972).

This Court’s decision in Brice held that failure to comply with a separate

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Opinion of the Court

indictment provision is a mere informality that does not render an indictment fatally

defective. See Brice, 370 N.C. at 252–53, 806 S.E.2d at 38. In that case, the defendant

was indicted for habitual misdemeanor larceny. Id. at 244–45, 806 S.E.2d at 33. The

defendant challenged the indictment’s validity because the form of the indictment

failed to comply with the statutory requirements under N.C.G.S. § 15A-928. Id. at

245, 806 S.E.2d at 33. Thus, the defendant argued that the indictment was fatally

defective and that the trial court lacked jurisdiction over the habitual misdemeanor

larceny offense. Id.

The statute at issue in Brice, N.C.G.S. § 15A-928, governs habitual offenders

and prescribes the process by which a prosecutor should present a defendant’s

previous convictions. It specifically mandates that

[a]n indictment or information for the offense must be
accompanied by a special indictment or information, filed
with the principal pleading, charging that the defendant
was previously convicted of a specified offense. At the
prosecutor’s option, the special indictment or information
may be incorporated in the principal indictment as a
separate count.

N.C.G.S. § 15A-928(b) (2021). After examining the statute’s purpose and language,

this Court determined that noncompliance with the statute does not constitute a

jurisdictional defect. Brice, 370 N.C. at 253, 806 S.E.2d at 38. Significantly, this Court

explained that “[a]lthough the separate indictment provisions contained in

N.C.G.S. § 15A-928 are couched in mandatory terms, that fact, standing alone, does

not make them jurisdictional in nature.” Id. In other words, “noncompliance with the

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Opinion of the Court

relevant statutory provisions [does not] constitute[ ] a jurisdictional defect” such that

the trial court does not have authority over the charge at issue. Id. at 252–53, 806

S.E.2d at 38. Therefore, this Court, relying on House and its principle of substance

over form, held that the statutory requirements were not jurisdictional. Id. at 253,

806 S.E.2d at 38. Because the defect did not implicate jurisdictional concerns, nor did

it affect the facial validity of the indictment, the defendant was required to raise the

statutory indictment issue to the trial court. Id. Otherwise, review of that issue was

waived. Id. Under Brice, indictments that fail to comply with mandatory separate

indictment statutes are not fatally defective and thus do not deprive the trial court of

jurisdiction.

Here, because the indictment includes the offense of possession of a firearm by

a felon along with two related offenses, the indictment fails to comply with the

mandatory separate indictment provision of N.C.G.S. § 14-415.1(c). Just as in Brice,

however, that defect is a “mere informality” that does not “affect the merits of the

case.” Brady, 237 N.C. at 679, 75 S.E.2d at 793. Applying the principle of substance

over form, it is clear that the indictment here gave defendant sufficient notice of the

crimes with which he was being charged such that he was able to prepare his defense.

Moreover, the State’s failure to obtain a separate indictment for the possession of a

firearm by a felon offense did not prejudice defendant because the indictment

sufficiently alleged facts supporting the essential elements of the crimes with which

defendant was charged. Therefore, we hold that although the statute here is “couched

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Opinion of the Court

in mandatory terms,” Brice, 370 N.C. at 253, 806 S.E.2d at 38, the statute’s separate

indictment requirement is not jurisdictional, and failure to comply with the

requirement does not render the indictment fatally defective.

The Court of Appeals in the present case erroneously applied its precedent in

Wilkins. Although the Court of Appeals in Wilkins dealt specifically with

N.C.G.S. § 14-415.1(c), that case was wrongly decided in light of this Court’s

precedent adopting a substance-over-form approach. See House, 295 N.C. at 203, 244

S.E.2d at 661–62. Despite this Court’s precedent recognizing that substance should

prevail over form, as well as Court of Appeals decisions applying the same principle,

the Court of Appeals reversed track in Wilkins and demanded strict compliance with

the form of an indictment while overlooking its substance.1 Accordingly, Wilkins is

hereby specifically overruled.

This Court’s decision in Brice correctly adhered to the principle of substance

over form and reaffirmed this Court’s long-standing practice of declining to quash an

1 Notably, before Wilkins, the Court of Appeals held on three separate occasions that
an indictment was not fatally defective for failing to comply with mandatory formalities
under N.C.G.S. § 14-415.1(c). In each case, the Court of Appeals relied on this Court’s decision
in House to adhere to the principle of substance over form. See State v. Boston, 165 N.C. App.
214, 218, 598 S.E.2d 163, 166 (2004) (“[T]he provision of [N.C.G.S.] § 14-415.1(c) that requires
the indictment to state the penalty for the prior offense is not material and does not affect a
substantial right[, and] . . . hold[ing] otherwise would permit form to prevail over
substance.”); State v. Inman, 174 N.C. App. 567, 571, 621 S.E.2d 306, 309 (2005) (holding
that the indictment was not fatally defective for failing to include the date of the defendant’s
previous conviction because “this omission is not material and does not affect a substantial
right”); State v. Taylor, 203 N.C. App. 448, 454, 691 S.E.2d 755, 761 (2010) (holding that the
indictment was not fatally defective for a discrepancy in the date of the defendant’s prior
felony offense).

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Opinion of the Court

indictment over a defect that amounts to a mere informality. Therefore, Brice controls

the outcome of this case. Because the Court of Appeals in the present case declined

to follow this Court’s precedent established in House and reaffirmed in Brice, and

instead relied on its erroneous decision in Wilkins, we reverse the decision of the

Court of Appeals and instruct that court to reinstate the judgment of the trial court.

REVERSED.

Justice DIETZ did not participate in the consideration or decision of this case.

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Morgan, J., dissenting

Justice MORGAN dissenting.

In dissenting from my learned colleagues in the majority, I would affirm the

decision of the Court of Appeals which held that “[w]hen the charge of possession of

a firearm by a felon is brought in an indictment containing other related offenses, the

indictment for that charge is rendered fatally defective and invalid, thereby depriving

a trial court of jurisdiction over it.” State v. Newborn, 279 N.C. App. 42, 43 (2021).

While the majority correctly identifies the issue in this case as “whether a single

indictment charging defendant with possession of a firearm by a felon and two related

offenses is fatally defective under N.C.G.S. § 14-415.1(c), depriving the trial court of

jurisdiction over the offense,” the reasoning of the majority is fatally defective itself

through the majority’s unconvincing departure from this Court’s entrenched

principles governing proper statutory interpretation and the majority’s exacerbation

of this flawed preface through its misunderstanding of the applicable appellate

caselaw precedent. Due to this misguided analysis of the intersection between the

relevant statutory law and the appropriate governing appellate caselaw, I

respectfully dissent.

Subsection 14-415.1(a) of the General Statutes of North Carolina states, in

pertinent part: “It shall be unlawful for any person who has been convicted of a felony

to purchase, own, possess, or have in his custody, care, or control any firearm . . . .”

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Morgan, J., dissenting

N.C.G.S. § 14-415.1(a) (2021). Pursuant to this statutory provision which establishes

the offense, N.C.G.S. § 14-415.1(c) states, again in pertinent part: “The indictment

charging the defendant under the terms of this section shall be separate from any

indictment charging him with other offenses . . . .” Id. § 14-415.1(c) (emphasis added).

In this case, defendant was charged with the criminal offenses of possession of

a firearm with an altered or removed serial number, carrying a concealed weapon,

and possession of a firearm by a felon. All three of defendant’s charges were lodged

in a sole indictment. The combination of defendant’s charged offense of possession of

a firearm by a felon with the other two charged offenses constituted an obvious lack

of the State’s compliance with the unequivocal mandate of N.C.G.S. § 14-415.1(c),

which clearly requires that an indictment charging an individual—such as defendant

here—with a violation of the statute “shall be separate from any indictment charging

him with other offenses.” Id.

“When the language of a statute is clear and unambiguous, there is no room

for judicial construction and the courts must give the statute its plain and definite

meaning, and are without power to interpolate, or superimpose, provisions and

limitations not contained therein.” In re Banks, 295 N.C. 236, 239 (1978) (emphasis

added) (citing State v. Camp, 286 N.C. 148 (1974)). “It is well established that the

word ‘shall’ is generally imperative or mandatory when used in our statutes.”

Morningstar Marinas/Eaton Ferry, LLC v. Warren Cnty., 368 N.C. 360, 365 (2015)

(extraneity omitted). In the instant case, it is evident that the indictment was

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Morgan, J., dissenting

defective in that it did not conform with the statute’s clear and unambiguous

language which must be given its plain and definite meaning. In my view, the Court

of Appeals followed the requirement imposed upon the state’s forums, as we opined

in In re Banks, to construe N.C.G.S. § 14-415.1(c) literally without taking additional

liberties with the statute’s unmistakable terms. Therefore, I agree with the lower

appellate court’s determination to vacate defendant’s conviction for the offense of

possession of a firearm by a felon because the State’s lack of compliance with the

separate indictment requirement of N.C.G.S. § 14-415.1(c) rendered the charging

instrument at issue here to be defective.

Despite the clear and unambiguous language of N.C.G.S. § 14-415.1(c) which

requires a separate indictment for the offense of possession of a firearm by a felon,

nonetheless the majority has sadly opted to forsake a rudimentary principle easily

understood in legal circles; namely, with regard to statutory interpretation, to ascribe

to words their plain and simple meaning. However, the majority chose to build upon

this faulty foundation by not merely ignoring basic rules of statutory construction but

also by trampling upon our stated principle in In re Banks that the courts “are

without power to interpolate, or superimpose, provisions and limitations not

contained” in statutes with operative words which have a plain and definite meaning.

In re Banks, 295 N.C. at 239. Yet here, the majority has decided to grant itself a

dispensation in order to depart from this cardinal principle as well, opting to create

such authority for itself. And in doing so, the majority incredibly manages to execute

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Morgan, J., dissenting

a third misfortune in the area of statutory interpretation by obfuscating the clear

application of N.C.G.S. § 14-415.1(c) and the pointedly relevant case of State v.

Wilkins, 225 N.C. App. 492 (2013), with the strained application of N.C.G.S. § 15A-

928 and the tangentially relevant case of State v. Brice, 370 N.C. 244 (2017). The

majority’s awkward adaptation here of N.C.G.S. § 15A-928 and Brice to blunt the

direct effect of N.C.G.S. § 14-415.1(c) and Wilkins signals a precarious uncertainty

for the reliability of statutory interpretation, the sanctity of legal precedent, and the

stability of the area of criminal law.

To illustrate the extent to which the majority is willing to contort itself with

regard to my observation, it is worthy of note that the majority acutely relies upon

the criminal procedure statute of N.C.G.S. § 15A-928 to offset the criminal law statute

of N.C.G.S. § 14-415.1. As a criminal law statute, N.C.G.S. § 14-415.1 establishes the

criminal offense of possession of a firearm by a felon and designates the manner in

which the specific offense must be charged; as a criminal procedure statute, N.C.G.S.

§ 15A-928 does not establish any criminal offense and designates the manner in

which, according to the statute’s title, there is to be “[a]llegation and proof of previous

convictions in superior court.” N.C.G.S. § 15A-928, as a criminal procedure statute,

has general application; N.C.G.S. § 14-415.1, as a criminal law statute establishing a

criminal offense, has a specific application as to the identified crime. While the

majority trumpets the applicability of N.C.G.S. § 15A-928 to the present case in a

manner which reduces the appropriate direct impact of N.C.G.S. § 14-415.1, the

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Morgan, J., dissenting

majority exemplifies yet a fourth method of wrongful statutory interpretation. “One

canon of construction is that when one statute deals with a particular subject matter

in detail, and another statute deals with the same subject matter in general and

comprehensive terms, the more specific statute will be construed as controlling.”

Piedmont Publ’g Co. v. City of Winston-Salem, 334 N.C. 595, 598 (1993). Because the

majority elevates and expands the general criminal procedure statute of N.C.G.S. §

15A-928 above and beyond the applicability of the specific criminal law statute of

N.C.G.S. § 14-415.1, which should totally govern the analysis and resulting outcome

of this case, the majority has elected to abrogate another fundamental standard of

prioritizing the operation of a specific statute over a general statute by instead relying

here on the general criminal procedure statute of N.C.G.S. § 15A-928 and its

subservient relevance when compared to N.C.G.S. § 14-415.1 and its prioritized

relevance as the specific criminal law statute.

With these four glaring missteps by the majority which have shunned

elementary statutory interpretation principles which are firmly ensconced in our

legal jurisprudence, it reasonably follows that the majority’s heavy reliance on Brice,

with the case’s major focus on N.C.G.S. § 15A-928 which conveniently fits the

majority’s unsound approach to the present case, is misplaced. In like fashion, the

majority stretches to cobble together various appellate caselaw principles regarding

double jeopardy, sufficient notice, and “form over substance” references to indictment

considerations in an exhausting exercise to strengthen its brittle decision.

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Morgan, J., dissenting

Meanwhile, the lower appellate court, in the opinion which it issued here, rendered a

sound and comprehensible decision based upon its own precedent of Wilkins. Unlike

Brice and its tangential relevance to the present case by virtue of its focus on the

general criminal procedure statute, N.C.G.S. § 15A-928, Wilkins (1) addressed the

same specific criminal law statute at issue here—N.C.G.S. § 14-415.1—which should

have fully controlled the outcome of the instant case; (2) analyzed the same issue as

the matter presented here concerning the combination of the charged criminal offense

of possession of a firearm by a felon and another charged offense in one indictment;

(3) examined the requirement regarding N.C.G.S. § 14-415.1 and proper statutory

interpretation that “where the language of the statute is clear and unambiguous,

there is no room for judicial construction”; (4) determined that “[d]efendant should

not have been charged with both offenses in the same indictment”; and (5) ultimately

concluded that the indictment charging defendant with possession of a firearm by a

felon was fatally defective and thus invalid because the charge was not brought in a

separate indictment. Wilkins, 225 N.C. App. at 496–97 (citation omitted).

While this Court is not bound by decisions of the Court of Appeals, I deem it to

be much more fathomable to implement a solid outcome rendered by the lower

appellate court which is based upon well-reasoned analysis spawned by well-

established principles that are rooted in directly relevant law rather than to

manufacture a shallow outcome which is based upon an ill-fitting analysis driven by

unbridled approaches that are rooted in conveniently available opportunities.

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Morgan, J., dissenting

I respectfully dissent.

Justice EARLS joins in this dissenting opinion.

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