Copyright 1998 - N.C. Administrative Office of the Courts


STATE OF NORTH CAROLINA v. HULON LEON WILSON, JR.

No. COA96-1469

(Filed 3 March 1998)

1.    Appeal and Error § 163 (NCI4th)-- kidnapping indictment -- felonious restraint conviction -- indictment insufficient for conviction -- failure to object

    Defendant's failure to object to the submission of felonious restraint to the jury on an indictment for first-degree kidnapping was not an impediment to appeal because defendant challenged the indictment on the grounds that it was on its face insufficient to support the offense of which he was convicted.

2.    Indictment, Information, and Criminal Pleadings § 3 (NCI4th)-- kidnapping indictment -- felonious restraint instruction requested -- right to challenge indictment not waived

     Defendant did not waive his right to challenge the sufficiency of an indictment for first- degree kidnapping to support a conviction for felonious restraint by requesting the instruction on felonious restraint. Under N.C.G.S. § 15A-642(c), waiver of indictment must be in writing and signed by defendant and his attorney.

3.    Indictment, Information, and Criminal Pleadings § 18 (NCI4th)-- first-degree kidnapping indictment -- felonious restraint conviction -- lesser offense -- required allegations

    A first-degree kidnapping indictment which did not allege that defendant transported the victim by motor vehicle or other conveyance was insufficient to support a charge of felonious restraint and the court erred by submitting that charge to the jury as a possible verdict. The legislature has not adopted a short form indictment for kidnapping and, although the legislature has expressly declared that felonious restraint is a lesser included offense of kidnapping, a statute which simply authorizes a verdict to a lessor offense upon trial on a greater offense does not eliminate the requirement that every essential element of the lesser charge be alleged in the indictment. N.C.G.S. § 14-43.3.

4.    Constitutional Law § 219 (NCI4th)-- kidnapping indictment -- felonious restraint conviction -- indictment insufficient -- new indictment for felonious restraint -- double jeopardy

    A judgment upon a conviction for felonious restraint upon an indictment for first-degree kidnapping which did not allege the essential element of transportation by motor vehicle or other conveyance was remanded for judgment and sentencing for false imprisonment. Under double jeopardy, the State cannot now seek to indict and try defendant for felonious restraint; however, the verdict of felonious restraint means that the jury found each of the elements of false imprisonment.

    Appeal by defendant Hulon Leon Wilson, Jr. from judgment entered 22 May 1996 by Judge Howard E. Manning, Jr., in Durham County Superior Court. Heard in the Court of Appeals 28 August 1997.

    Michael F. Easley, Attorney General, by Charles J. Murray, Special Deputy Attorney General, for the State.

    Brian Michael Aus, for defendant Hulon Leon Wilson, Jr.

    WYNN, Judge.

    "[W]hen a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense [only] when the greater offense which is charged in the bill of indictment contains all of the essential elements of the lesser."See footnote 1

Felonious restraint, a lesser included offense of kidnaping, requires proof that the victim was transported in a motor vehicle or other conveyance.See footnote 2 Because the kidnaping indictment in the subject case fails to charge that the defendant transported the victim by motor vehicle or other conveyance, we must vacate his conviction on the lesser included offense of felonious restraint. However, we remand to the trial court for imposition of judgment of the lesser included offense of false imprisonment which does not require proof of transportation by motor vehicle or other conveyance.

Facts

    As a result of an incident which occurred on November 14, 1995, defendant was indicted and tried on May 21, 1996 in the Superior Court of Durham County for first degree kidnaping and assault. At the conclusion of the trial, defendant was acquitted of the assault charge but convicted of felonious restraint, which was submitted to the jury as a lesser included offense under the kidnaping indictment. The trial court sentenced defendant to an active sentence of twenty-five (25) to thirty (30) months imprisonment.

Preliminary Issues

    Before we discuss the merits of our decision today, certain litigation facts in this case constrain us to address the preliminary question of whether this issue was properly preserved for our appellate review.

    [1]According to the record, defendant in this case did not object to the trial court's submission of felonious restraint to the jury. In fact, during the charge conference, defense counsel asked the court to consider submitting felonious restraint as well as second degree kidnaping and false imprisonment as possible verdicts. Ordinarily, under the invited error doctrine, such action and inaction by defendant would prevent him from now seeking appellate review of the contested issues.See footnote 3 However, defendant argues that, inasmuch as the indictment in this case is subject to a motion in arrest of judgment and he did not formally waive his right to an indictment, the issue regarding the trial court's submission of the felonious restraint charge to the jury is preserved as a matter of law. We agree.

    Where there is a fatal defect in the indictment, verdict or judgment which appears on the face of the record, a judgment which is entered notwithstanding said defect is subject to a motion in arrest of judgment.See footnote 4 A defect in an indictment is considered fatal if it "wholly fails to charge some offense...or fails to state some essential and necessary element of the offense of which the defendant is found guilty."See footnote 5 When such a defect is present, it is well established that a motion in arrest of judgment may be made at any time in any court having jurisdiction over the matter, even if raised for the first time on appeal.See footnote 6 As the indictment in the subject case is being challenged by defendant on the grounds that it is on its face, insufficient to support the offense of which defendant was convicted, we conclude that defendant's failure to object to the submission of the felonious restraint charge is not an impediment to this appeal since such a challenge of the indictment may be made for the first time on appeal.

    [2]Having concluded that defendant's failure to object is not fatal to his appeal, we now consider whether defendant, nonetheless, waived his right to challenge the sufficiency of the indictment under which he was convicted by requesting an instruction on felonious restraint. In addressing this issue, we refer to N.C. Gen. Stat. § 15A-642(c) which provides that:

        Waiver of indictment must be in writing and signed by the defendant and his attorney. The waiver must be attached to or executed upon the bill of indictment.

We also find it instructive that our courts, in applying N.C.G.S. § 15A-642(c), have held that neither a tendering of a guilty plea by a defendant,See footnote 7 nor the tendering to the trial court of an unsigned waiver,See footnote 8 could be considered sufficient waivers of a defendant's right to a formal indictment. Guided by such precedent and the plain language of the statute itself, we conclude that defendant's request for an instruction on felonious restraint did not constitute a formal waiver of his right to be charged under a sufficient indictment. Accordingly, we now address the merits of defendant's argument that the indictment charging him with first degree kidnaping was insufficient to support defendant's conviction of felonious restraint.

Discussion

    [3]North Carolina courts have long held that in making out an indictment or criminal summons, the state need only allege ultimate facts.See footnote 9 Evidentiary matters simply need not be alleged.See footnote 10 However, it is also well settled in this state that "when a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense [only] when the greater offense which is charged in the bill of indictment contains all of the essential elements of the lesser."See footnote 11 Thus, when the lesser charge has an essential element not alleged in the bill of indictment charging the greater offense, no conviction may be had on the lesser offense.See footnote 12

    The above rule governs when determining the sufficiency of an indictment, unless the legislature has authorized the state to use short-form indictments for the crime in question.See footnote 13 Only when such authorization is given is the state exempt from the common law rule that it must allege every element of the lesser included charge in order to obtain a conviction pursuant to an indictment charging the greater offense.See footnote 14 As of yet, the legislature has not adopted a short form indictment for the crime of kidnaping.See footnote 15 Therefore, in determining the sufficiency of the indictment in the subject case, we are compelled to follow the general common law rule that the state must allege every element of a lesser included offense in order to obtain a conviction under an indictment charging the greater offense.

    The body of the indictment in this case charged that defendant did

            "kidnap Trenda Jean Wilson, a person who had attained the age of 16 years of age, by unlawfully confining and removing her from one place to another, without her consent and for the purpose of holding her hostage and terrorizing her and the defendant did not release Trenda Jean Wilson in a safe place."

(emphasis added). The offense of kidnaping is defined in N.C. Gen. Stat. § 14-39 as follows:

    

        (a) Any person who shall unlawfully confine, restrain, or remove any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnaping if such confinement, restraint or removal is for the purpose of: