STATE of North Carolina
v.
Robert TRIMBLE.
No. 7929SC482.
Court of Appeals of North Carolina.
February 5, 1980.*302 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Asst. Atty. Gen. Rebecca R. Bevacqua, Raleigh, for the State.
Prince, Youngblood, Massagee & Creekman by James E. Creekman, Hendersonville, for defendant-appellant.
CLARK, Judge.
I. Elements of the Offense
Appellant was convicted under N.C.Gen. Stat. § 14-401, which statute provides 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." (Emphasis supplied.)
Appellant argues that the above-underlined exception for rat extermination and insect control constitutes an element of the offense which is not set forth in the arrest warrant as required by N.C.Gen.Stat. § 15A-924(a)(5), and that therefore the charges must be dismissed pursuant to N.C. Gen.Stat. § 15A-924(e) and § 15A-954(a)(10).
We are hesitant to define an exception in a statutory definition of a crime as an element of that crime. Appellant's seemingly simple contention is replete with subtle but significant procedural due process questions left unresolved by the United States Supreme Court in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); and Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), concerning the proper interrelationships between the definition of a crime, defenses thereto, the respective burdens of proof and ultimate criminal liability.[1]
*303 Our concern is that a purely formalistic or procedural approach to defining elements and assigning burdens of proof (X is an element of the crime therefore S has the burden of proof) may disregard federal and state due process and law of the land, respectively, limitations on substantive criminal law, such as that enunciated in In re Winship, supra, that the accused is protected "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." 397 U.S. at 364, 90 S.Ct. at 1073 (emphasis supplied). In essence, following a purely formalistic approach would allow the General Assembly "to shift, virtually at will, the burden of persuasion with respect to any factor in a criminal case, so long as it is careful not to mention the nonexistence of that factor in the statutory language that defines the crime." Patterson v. New York, 432 U.S. at 223, 97 S. Ct. at 2333 (Powell, J., dissenting).[2]
In the instant case we are not troubled by the possibility that the General Assembly, in enacting N.C.Gen.Stat. § 14-401 has gone beyond the constitutional limits established by In re Winship, supra, and we recognize that legislatures do have considerable latitude in defining elements of a crime and in specifying defenses to that crime, Patterson, supra, 432 U.S. at 210, 97 S. Ct. at 2327; rather, our attention is directed to our concern that we do not artificially analyze the problem and thereby set a precedent for future cases where the General Assembly might define a crime in such a way as to place an egregious burden of proof on the defendant. Equally important, we find that where, 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.
In light of these considerations we hold that the insect control and rat extermination exception in N.C.Gen.Stat. § 14-401 is neither an element of the crime nor an affirmative defense thereto but is instead a "hybrid" factor in determining criminal liability: the State has no initial burden of producing evidence to show that defendant's *304 actions do not fall within the exception; however, 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. In sum we are not convinced that the exception is a sufficiently "independent, distinct substantive matter of exemption, immunity or defense, beyond the essentials of the legal definition of the offense itself," State v. Johnson, 229 N.C. 701, 706, 51 S.E.2d 186 (1949), to put all the "onus" of proof on the defendant, id.; State v. Connor, 142 N.C. (Biggs) 700, 704-05, 55 S.E. 787 (1906).
With respect to the precise question before us, 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. State v. Johnson, supra.
We note that in the case sub judice, the trial court placed the entire burden of proof on the State to show that the defendant placed the poison food out for "purposes other than poisoning insects or worms for the production of crops, plants or trees or for the extermination of rats." This charge is entirely consistent with this opinion. We see no actual prejudice to defendant by the omission of a "not within the exception" statement in the indictment, even if such a statement were required, since the warrant sufficiently apprised defendant of the crime for which he was charged, N.C.Gen.Stat. § 15A-924(a)(5), and the State carried the entire burden of proof on the exception.
II. Vagueness
We find no merit in defendant's contention that the N.C.Gen.Stat. § 14-401 is unconstitutionally vague. We also hold that the language, "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" was sufficiently broad to indicate that the General Assembly prohibited putting poison outside virtually everywhere where an innocent child or animal could find it, and that defendant's concrete patio comes within this definition. Similarly, we agree with the State that while parathion is a poison used in rat extermination, if it is put out for purposes other than rat extermination it comes within the scope of the statutory prohibition.
III. Evidentiary Issues
The trial court properly admitted testimony pertaining to the Hyer dog and the death of Mrs. Winton's Irish setter. Each of these evidentiary items would not be admissible for the purpose of showing that defendant acted in conformity with other crimes but would be admissible to establish the corpus delicti of the crime, particularly for showing that the poison was put out for purposes other than rat extermination. Similarly, the evidence was properly admissible to show intent, motive, and plan or design on the part of defendant to eliminate the problem of visitations by his neighbor's dogs. See 1 Stansbury's North Carolina Evidence § 92 (Brandis rev. 1973).
The statement of the defendant to Lieutenant Goodwin ("If your neighbor's dogs come up and [defecated] all over your wife's flowers, what would you do?") was also properly admitted into evidence as a voluntary and uncoerced statement made freely without any compelling influences and therefore falls without the protections of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and its progeny.
Also, the trial court properly admitted the pie pan, its contents and evidence relating to the chemical analysis thereof into evidence. First, the defendant admitted placing the pan out on the concrete patio. Second, Officer Goodwin discovered the pan which was in "plain view" when he was knocking on the back door of defendant's house. In the present case the officer went to defendant's premises armed with a valid warrant for the defendant's arrest. The warrant charged the defendant with placing poisonous compounds on beef and *305 other foodstuffs in his yard in the country. It was entirely reasonable for the officer to conclude that contents of the pan could be the poisonous foodstuffs described in the warrant. As the Fourth Amendment only protects individuals from unreasonable searches and seizures, Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), we find no violation of defendant's Fourth Amendment rights.
No error.
HEDRICK and HARRY C. MARTIN, JJ., concur.
NOTES
[1] See generally, Jeffries and Stephens, Defenses, Presumptions and Burdens of Proof in the Criminal Law, 88 Yale L.J. 1325 (1979); Eule, The Presumption of Sanity; Bursting the Bubble, 25 U.C.L.A.L.Rev. 637 (1978); Allen, The Restoration of In re Winship: A Comment on Burdens of Persuasion in Criminal Cases After Patterson v. New York, 76 Mich.L.Rev. 30 (1977); Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299 (1977); Ashford & Risinger, Presumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969); Osenbaugh, The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark.L.Rev. 429 (1976); Tushnet, Constitutional Limitations of Substantive Criminal Law: An Examination of the Meaning of Mullaney v. Wilbur, 55 B.U.L.Rev. 775 (1975).
[2] Generally speaking, the State carries both the burden of production and the burden of persuasion as to every element of an offense, and, similarly, the defendant carries both the burden of production and the burden of persuasion as to each affirmative defense. Upon close analysis, however, the distinction between the element and the defense blurs, for it is together that the elements and defenses define the substantive parameters of criminal liability. When one thinks in terms of circumscribing the parameters of criminal liability, disregarding for the moment the allocation of the burden of proof, there is little difference between requiring the State to show that an individual's actions are within the circumscribed area, and requiring the defendant to show that his actions are without the circumscribed area: in either case the prohibited range of conduct is the same.
The procedural implications with respect to the burden of proof are, however, quite serious. As Mr. Justice Powell, in his dissent in Patterson, supra, explains: "For example, a state statute could pass muster . . . if it defined murder as mere physical contact between the defendant and the victim leading to the victim's death, but then set up an affirmative defense leaving it to the defendant to prove that he acted without culpable mens rea. The State, in other words, could be relieved altogether of responsibility for proving anything regarding the defendant's state of mind, provided only that the fact of the statute meets the Court's drafting formulas." 432 U.S. at 224, fn. 8, 97 S. Ct. at 2334.