Appeal by defendant from judgment entered 16 August 2005 by
Judge W. David Lee in Union County Superior Court. Heard in the
Court of Appeals 19 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth F. Parsons, for the State.
David Childers for defendant-appellant.
Defendant Henry Scott Lockhart appeals from his convictions
for felonious escape and having achieved the status of habitual
felon. On appeal, defendant primarily argues that the indictment
improperly charged him with felony escape under N.C. Gen. Stat. §
148-45(b) (2005) rather than escape of a work-release prisoner
under N.C. Gen. Stat. § 148-45(g), and, therefore, that there was
a fatal variance between the indictment and the evidence presented
at trial. We hold that because the indictment tracked the language
of N.C. Gen. Stat. § 148-45(g), it was sufficient to charge
defendant with a work-release escape. Further, contrary to
defendant's contention, we conclude that the State presented
substantial evidence of each element of the offense and that
defendant failed to establish he was entitled to dismissal based
upon an affirmative defense. Accordingly, the trial court properly
denied defendant's motion to dismiss.
The State's evidence at trial tended to show the following
facts. In October 2002, defendant was an inmate at the Union
Correctional Center in Monroe, North Carolina. Defendant
participated in a work-release program, in which a prison van
transported defendant between the correctional center and a work-
release site. On the morning of 18 October 2002, defendant was
transported by a prison van to his work site, Don's Auto Parts in
Monroe, North Carolina. When the prison van returned at the end of
the day to pick defendant up, he was not there. The van driver contacted Union Correctional Center Sergeant
Ronald Tarlton, who then left the correctional center in an effort
to locate defendant. After searching for defendant at Don's Auto
Parts and in the surrounding area for 40 minutes to an hour,
Sergeant Tarlton activated the "escape procedures," at which time
defendant's absence became "an official escape."
By 10:15 p.m., law enforcement had visited the homes of five
of defendant's friends and family members. At approximately 3:30
a.m. on the morning of 19 October 2002, officers arrived at the
home of defendant's sister, Joyce Price, in Wingate, North
Carolina. Upon arrival, second-shift Union Correctional Center
Sergeant David K. Funderburk noticed there were several vehicles in
the driveway and thought he caught a glimpse of defendant in the
home. Although officers informed defendant's family members that
defendant was wanted for escape, the family declined to allow the
officers to come into the house to look for defendant. The
officers told the family that they would wait outside while a
search warrant was sought, but that if one was obtained and
defendant was discovered inside the residence, charges could be
brought against those in the home. The family surrendered
defendant to authorities several minutes later.
Defendant was subsequently indicted for escape from the state
prison system and having attained the status of habitual felon.
The matter was tried before a jury on 15 and 16 August 2005, and
the jury returned a verdict finding defendant guilty of felonious
escape. After defendant pled guilty to having attained habitualfelon status, the trial court sentenced defendant within the
mitigated range to 44 to 62 months imprisonment. Defendant timely
appealed to this Court.
 We are first compelled to address certain violations by
defense counsel of the North Carolina Rules of Appellate Procedure.
Those rules "are mandatory" and failure to follow these rules will
subject an appeal to sanctions, up to and including dismissal.
Viar v. N.C. Dep't of Transp.
, 359 N.C. 400, 401, 610 S.E.2d 360,
360 (2005). See also
N.C.R. App. P. 25(b), 34.
Under North Carolina Rule of Appellate Procedure 26(g)(1), in
all briefs submitted to the appellate courts, "[t]he body of text
shall be presented with double spacing between each line of text."
Although the opening sections of defendant's brief are double-
spaced, the argument section is entirely single-spaced. Further,
under Rule 28(b)(6), each argument in an appellant's brief "shall
contain a concise statement of the applicable standard(s) of review
for each question presented . . . ." Defense counsel, however,
failed to include a statement of the standard of review with
respect to his argument challenging the trial court's denial of his
motion to dismiss.
We believe that an appropriate sanction for these obvious
rules violations is to require defendant's counsel to personally
pay the printing costs of this appeal. See, e.g.
, State v. Riley
167 N.C. App. 346, 347-48, 605 S.E.2d 212, 214 (2004) (sanctioning
defense counsel with appellate printing costs as a sanction forsubmitting single-spaced brief). We instruct the Clerk of this
Court to enter an order accordingly.
 We now turn to defendant's argument that the indictment
improperly charged him with felony escape under N.C. Gen. Stat. §
148-45(b)(1) rather than escape of a work-release prisoner under
N.C. Gen. Stat. § 148-45(g)(1), and, therefore, that there was a
fatal variance between the indictment and the evidence presented at
trial. The State acknowledges that State v. Washington
, 54 N.C.
App. 683, 685, 284 S.E.2d 330, 331 (1981), reversed an escape
conviction when the indictment tracked the statutory language of
N.C. Gen. Stat. § 148-45(b), but the evidence supported a
conviction only under N.C. Gen. Stat. § 148-45(g). Nevertheless,
the State contends (1) that N.C. Gen. Stat. § 148-45 has since been
amended so as to render Washington
inapplicable and (2) that a
citation in the indictment to N.C. Gen. Stat. § 148-45(b) was
necessary to give defendant notice that he was being charged as a
felon. We need not, however, resolve these issues, because the
indictment in this case in fact properly charged a violation of
N.C. Gen. Stat. § 148-45(g).
Under N.C. Gen. Stat. § 148-45(b)(1), a prisoner in the
custody of the Department of Correction, who is serving a sentence
for a felony conviction and "escape[s] from the State prison
system, shall, except as provided in subsection (g) of this
section, be punished as a Class H felon." N.C. Gen. Stat. § 148-
45(g)(1) provides that any prisoner who is assigned to awork-release program and fails to return to custody following a
work-release shall likewise be guilty of escape. Although a work-
release escapee is subject to the general escape provisions of N.C.
Gen. Stat. § 148-45, a first-time work-release escapee (unlike a
non-work-release escapee) may avoid criminal charges by
"voluntarily return[ing] to his place of confinement within 24
hours of the time at which he was ordered to return . . . ." N.C.
Gen. Stat. § 148-45(g)(2).
Here, there is no dispute that defendant was assigned to a
work-release program. The indictment, however, bears only the
generic heading "Escape from the State Prison System" and
specifically cites only to N.C. Gen. Stat. § 148-45(b), the non-
work-release statute. Nevertheless, the body of the indictment
goes on to state that defendant:
unlawfully, willfully and feloniously did
escape from state prison unit #4550, Union
Correctional Center, Monroe, North Carolina, a
unit of the state prison system, while the
defendant was there in the lawful custody of
the Department of Correction serving a
sentence for a conviction of a felony, that
sentence having been imposed at the May 16,
1996 session of the Union County Superior
Court. The defendant escaped while on work
release by willfully failing to return to the
prison unit at the designated time
(Emphasis added.) Because this indictment effectively tracks the
language of N.C. Gen. Stat. § 148-45(g)(1), this case is
distinguishable from Washington
, in which the defendant was
convicted under N.C. Gen. Stat. § 148-45(g) even though the
indictment only "followed the language of G.S. 148-45(b)." 54 N.C.
App. at 685, 284 S.E.2d at 331. As this Court has previously held, an indictment's improper
statutory citation is immaterial when the language of the
indictment sufficiently apprises a defendant of the charge at
issue. State v. Allen
, 112 N.C. App. 419, 428, 435 S.E.2d 802,
807-08 (1993) (upholding indictment when the caption referred to
N.C. Gen. Stat. § 14-33(b)(4) (1986), but the wording in the body
of the indictment described a violation of N.C. Gen. Stat. § 14-
34.2(1) (1986), the basis for his conviction). See also State v.
, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996) (indictment
charging a statutory offense is adequate when it "allege[s] all of
the essential elements of the offense"). Since the indictment in
this case tracked the statutory language of N.C. Gen. Stat. § 148-
45(g), we hold that defendant was effectively charged with a work-
release escape, irrespective whether the indictment's citation to
N.C. Gen. Stat. § 148-45(b) was erroneous. These assignments of
error are, therefore, overruled.
 Defendant next contends that, even assuming he was
properly charged with a work-release escape under N.C. Gen. Stat.
§ 148-45(g)(1), the trial court erred by denying his motion to
dismiss for insufficient evidence. In ruling on a defendant's
motion to dismiss, the trial court must determine whether the State
presented substantial evidence (1) of each essential element of the
offense and (2) of the defendant's being the perpetrator. State v.
, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied
U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). Whenconsidering whether the State has presented substantial evidence,
the trial court must view all of the evidence "in the light most
favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its
favor." State v. Rose
, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994), cert. denied
, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct.
Defendant does not assert that the State failed to present
evidence of each element of work-release escape, but, rather, that
it "was abundantly clear . . . that [he] had returned voluntarily
within twenty-four (24) hours." It was defendant, however, who had
the burden of establishing this affirmative defense to the
satisfaction of the jury. See State v. Womble
, 44 N.C. App. 503,
506, 261 S.E.2d 263, 266 (noting that "the 24-hour exception
provided in G.S. 148-45(g)(2) is a defense which defendant may have
raised had the evidence warranted"), appeal dismissed and disc.
, 299 N.C. 740, 267 S.E.2d 669 (1980). See also State
, 127 N.C. App. 685, 691, 493 S.E.2d 292, 296 (1997)
(defendant bears burden of showing affirmative defenses "'to the
satisfaction of the jury'" (quoting State v. Caddell
, 287 N.C. 266,
290, 215 S.E.2d 348, 363 (1975))), disc. review denied
, 347 N.C.
579, 502 S.E.2d 602 (1998). This Court may reverse the denial of
a motion to dismiss based upon an affirmative defense only if the
evidence in support of that affirmative defense is undisputed and
does not require determination of a witness' credibility. See
State v. Sellers
, 155 N.C. App. 51, 56, 574 S.E.2d 101, 105 (2002)(holding that trial court properly denied motion to dismiss despite
undisputed testimony that defendant was insane because the
credibility of that testimony was a question for the jury); State
, 153 N.C. App. 91, 100, 569 S.E.2d 24, 29 (2002) ("When
the evidence of entrapment is undisputed, the trial court may find
that defendant was entrapped as a matter of law.").
Although the State's evidence demonstrated that defendant was
recaptured within 24 hours, it also indicated that defendant's
family only surrendered him to law enforcement after officers
threatened to obtain a search warrant and press criminal charges
against defendant's family members for harboring a fugitive. The
jury could have concluded this surrender was not a "voluntar[y]
return" by defendant to his place of confinement. Compare State
, 51 N.C. App. 369, 370, 276 S.E.2d 732, 734 (1981)
(defendant voluntarily returned when, after going home, he returned
on his own accord and turned himself over at the location from
where he escaped).
As defendant has failed to show that the undisputed evidence
supported the conclusion that he voluntarily returned into custody,
we cannot conclude that the trial court erred by denying
defendant's motion to dismiss the charge of work-release escape.
As we have rejected defendant's attacks on his escape conviction,
we also overrule his derivative assignments of error challenging
his habitual felon indictment on the grounds that his escape
conviction was invalid.
No error. Judges STEELMAN and STEPHENS concur.
Judge STEPHENS concurred prior to 31 December 2006.
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