in the Court of Appeals 19 October 2017
by defendant from judgment entered 7 July 2016 by Judge
Michael D. Duncan in Guilford County Superior Court, No. 14
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Amy Bircher, for the State.
Holladay for defendant-appellant.
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.
and Procedural Background
State presented evidence tending to establish the following
facts: On 27 April 2014, Angela Marie Rankin
("Defendant") was searching for scrap metal to
sell. 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
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 . . . ."
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.
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 and
placed her on supervised probation for 18 months. Defendant
filed a timely notice of appeal.
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).
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.
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, 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.
Validity of Indictment
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
Gen. Stat. § 14-399(a) states, in pertinent part, as
(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
(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
N.C. Gen. Stat. § 14-399(a) (2015) (emphasis added).
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.
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). 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
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
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