in the Supreme Court on 10 April 2017.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous, unpublished decision of the Court of Appeals, ___
N.C.App. ___, S.E.2d (2016), arresting a judgment entered on
15 May 2015 by Judge John E. Nobles, Jr., in Superior Court,
Onslow County, and remanding for resentencing.
H. Stein, Attorney General, by Oliver G. Wheeler, IV,
Assistant Attorney General, for the State-appellant.
Gerding, Appellate Defender, by Daniel L. Spiegel, Assistant
Appellate Defender, for defendant-appellee.
issue before us in this case is whether an indictment
returned for the purpose of charging defendant with the
offense of robbery with a dangerous weapon sufficed to give
the trial court jurisdiction to enter judgment against
defendant based upon his conviction for having committed that
offense. After careful consideration of the record in light
of the applicable law, we hold that the challenged indictment
was fatally defective because it did not sufficiently allege
all of the essential elements of the offense of robbery with
a dangerous weapon and, for that reason, affirm the Court of
11:45 a.m. on 13 September 2013, Stacy Phillips, a teller at
a PNC Bank branch located in Jacksonville, was the victim of
a robbery. At that time, a man entered the bank and laid a
note on the counter in front of Ms. Phillips. "[T]he
first thing [Ms. Phillips] saw on [the note] was 'armed,
' " which led her to believe that a robbery was in
progress. More specifically, the note that the man placed
before Ms. Phillips read "armed" and instructed,
"eyes down, 2, 000 - or two straps of hundreds, two
straps of fifties, two straps of twenties, no devices."
In spite of the fact that the only item that she saw in the
robber's possession was a case that he carried under his
arm, Ms. Phillips believed that the robber was armed based
upon the information contained in the note that he presented
Ms. Phillips attempted to grab the note, the robber said,
"Don't touch it." At that point, Ms. Phillips
gave the robber a bait strap, which included $330 in marked
bills; some additional $20, $50, and $100 bills; and a dye
pack, all of which the robber placed in the case. As the
robber reached the door and began to leave the bank, Ms.
Phillips activated a silent alarm and complied with PNC's
robbery protocol by calling the police, locking the
facility's doors, preparing an account of what she had
experienced, and providing assistance to the other persons
present at the time of the robbery.
Gary Manning of the Jacksonville Police Department,
accompanied by several other officers, arrived at the bank
shortly after the robbery. After securing the crime scene and
obtaining information from other witnesses, Detective Manning
viewed surveillance video footage related to the robbery. As
he did so, Detective Manning observed that a "red bloom
. . . emanat[ed] from the . . . front passenger area of the
vehicle" apparently used by the robber to facilitate his
escape. According to Karen Salefsky, the bank manager, the
"red bloom" that could be seen in the surveillance
video resulted from the explosion of the dye pack contained
in the bait strap.
following day, Detective Manning received a call from an
individual who "had found money in a dumpster in Phoenix
Park Apartments." While searching the dumpster,
Detective Manning retrieved money "stained with a bright
red" dye "consistent with the manner in which a dye
pack is prepared." In addition, Detective Manning
determined that the serial numbers of the currency retrieved
from the dumpster matched those printed on the currency taken
during the robbery.
September 2013, Crime Stoppers received a tip identifying the
suspect depicted in the surveillance footage, which had been
released to the public, as defendant, a resident of Kinston.
After noticing "a striking resemblance between
photographs . . . of [defendant] and the person depicted in
the surveillance footage, " Detective Manning began to
investigate defendant's possible connection to the
robbery. Detective Manning learned that defendant had access
to a vehicle resembling the one shown in the surveillance
video footage, which was a black Suzuki XL7 that was
registered to defendant's girlfriend, Heather Crider. On
4 October 2013, Ms. Crider's Suzuki XL7 was located in
downtown Kinston. While searching the vehicle with Ms.
Crider's consent, Detective Manning observed red smudges
on the vehicle's exterior consistent with those that
would have been made during the release of the dye pack
contained in the bait strap.
time that he was arrested in Kinston on 11 October 2013,
defendant possessed a duffle bag that contained, among other
things, a green bed sheet stained with red material that was
consistent with the color of certain stains found in the
dumpster and on the exterior of Ms. Crider's Suzuki XL7.
After waiving his Miranda rights, defendant admitted
that he had robbed the Jacksonville PNC Bank and gave an
account of that episode consistent with the information that
Detective Manning developed during his investigation.
Although defendant told Detective Manning that he had been
"provided" with a "pee shooter, " which
Detective Manning "took to mean a small caliber pistol,
" before entering the PNC Bank, investigating officers
never recovered it or any other weapon believed to have been
used during the robbery.
August 2014, the Onslow County grand jury returned a bill of
indictment that was intended to charge defendant with robbery
with a dangerous weapon. The indictment alleged, in pertinent
defendant [ ] unlawfully, willfully and feloniously did
steal, take and carry away another's personal property,
U.S. Money from PNC Financial Services Group, Inc., at the
location of "PNC Bank" . . . when a bank employee,
Stacy Phillips was present. The defendant committed this act
by way of it reasonably appearing to the victim Stacy
Phillips that a dangerous weapon was in the defendant's
possession, being used and threatened to be used by
communicating that he was armed to her in a note with demands
and instructions for her to complete, whereby the life of
Stacy Phillips was threatened and endangered.
charges against defendant came on for trial before the trial
court and a jury at the 11 May 2015 criminal session of the
Superior Court, Onslow County. On 15 May 2015, the jury
returned a verdict convicting defendant as charged. Based
upon the jury's verdict, the trial court entered a
judgment sentencing defendant to a term of fifty-three to
seventy-six months imprisonment. Defendant noted an appeal
from the trial court's judgment to the Court of Appeals.
seeking relief from the trial court's judgment before the
Court of Appeals, defendant argued, among other things, that
the trial court had erred by failing to dismiss the
indictment returned against him in this case on the grounds
that it failed to properly charge him with the commission of
robbery with a dangerous weapon. According to defendant,
"[t]he requirements for an indictment charging a crime
in which one of the elements is the use of a deadly weapon
are (1) to 'name the weapon and (2) either to state
expressly that the weapon used was a "deadly
weapon" or to allege such facts as would necessarily
demonstrate the deadly character of the weapon, ' "
quoting State v. Brinson, 337 N.C. 764, 768, 448
S.E.2d 822, 824 (1994) (emphasis omitted) (quoting State
v. Palmer, 293 N.C. 633, 639-40, 239 S.E.2d 406, 411
(1997)). More specifically, defendant asserted that
[a]lthough the language "robbery with a dangerous
weapon" appears in the caption, the indictment fails to
name any weapon. Since no weapon was named, the State could
not expressly state that the weapon was a deadly weapon or
allege facts that demonstrate the deadly character of the
weapon. The indictment also fails to allege any facts of how
the victim's life was threatened or endangered. The
indictment simply ...