Appeal by juvenile from an order entered 31 October 2006 by
Judge Sherry F. Alloway in Guilford County District Court. Heard
in the Court of Appeals 18 September 2007.
Roy Cooper, Attorney General, by Bertha L. Fields, Assistant
Attorney General, for the State.
Russell J. Hollers, III, for juvenile-appellant.
MARTIN, Chief Judge.
K.J.H., a juvenile, appeals from a final order adjudicating
him delinquent for the following serious Class H felony offenses:
(1) possession of a stolen motor vehicle in violation of N.C.G.S.
§ 20-106; and (2) speeding to elude arrest in violation of N.C.G.S.
§ 20-141.5.
According to the record, two juvenile delinquency petitions
were sworn against K.J.H. on 3 October 2006 which read as follows:
*LARCENY OF MOTOR VEHICLE*
THE DELINQUENT JUVENILE WAS IN POSSESSION OF A RECENTLY
STOLEN FORD TAURUS OWNED BY PRESON FOSTER JR OF 2400-C
S HOLDEN RD GREENSBORO, NC. THE DELINQUENT JUVENILE WAS
IN VIOLATION OF G.S. 20-106
*FELONY SPEEDING TO ELUDE ARREST*
THE DELINQUENT JUVENILE FELONIOUSLY SPEEDED [sic] TO
ELUDE ARREST BY TRAVELING IN EXCESS OF 100 MPH IN A 35
MPH ZONE, CONSUMED AN IMPAIRING SUBSTANCE AND RECKLESS[sic] DROVE AS PROSCRIBED BY G.S. 20-140. THE DELINQUENT
JUVENILE WAS IN VIOLATION OF G.S. 20-141.5(D)
On 16 October 2006, K.J.H. appeared before the district court and
admitted the allegations contained in the two petitions in the
presence and with the advice of his counsel and his mother. The
district court determined that the juvenile had five delinquency
history points and a “high” delinquency history level, and so
entered a Juvenile Level 3 Disposition and Commitment Order
committing K.J.H. to a youth development center for an indefinite
commitment not to exceed thirty months_the maximum adult
sentence_or his eighteenth birthday.
The juvenile presents arguments addressing two out of the six
assignments of error contained in the record on appeal. The four
remaining assignments of error are deemed abandoned. N.C.R. App.
P. 28(a) (2007) (“Questions raised by assignments of error in
appeals from trial tribunals but not then presented and discussed
in a party's brief, are deemed abandoned.”).
K.J.H. contends the district court erred in adjudicating him
delinquent on the charges of possession of a stolen motor vehicle
and speeding to elude arrest because the juvenile petitions failed
to allege all of the essential elements of each offense charged and
so were fatally defective. “[I]t is well established that fatal
defects in an indictment or a juvenile petition are jurisdictional,
and thus may be raised at any time.” In re S.R.S., 180 N.C. App.
151, 153, 636 S.E.2d 277, 280 (2006) (citing State v. Sturdivant,
304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981); In re R.P.M., 172
N.C. App. 782, 787, 616 S.E.2d 627, 631 (2005)); see also N.C. Gen.Stat. § 15A-952(d) (2005) (“Motions [in adult criminal proceedings]
concerning jurisdiction of the court or the failure of the pleading
to charge an offense may be made at any time.”). This Court has
also concluded that a petition in a juvenile action “serves
essentially the same function as an indictment in a felony
prosecution and is subject to the same requirement that it aver
every element of a criminal offense, with sufficient specificity
that the accused is clearly apprised of the conduct for which he is
being charged.” In re Griffin, 162 N.C. App. 487, 493, 592 S.E.2d
12, 16 (2004). Therefore, “[w]hen a [juvenile] petition[_or an
adult criminal indictment_]is fatally deficient, it is inoperative
and fails to evoke the jurisdiction of the court.” In re J.F.M.,
168 N.C. App. 143, 150, 607 S.E.2d 304, 309 (2005) (citing In re
Green, 67 N.C. App. 501, 504, 313 S.E.2d 193, 195 (1984)).
For a juvenile petition to be deemed sufficient and,
therefore, not fatally defective, it must satisfy the requirements
set forth in N.C.G.S. § 7B-1802, which provides:
A petition in which delinquency is alleged shall contain
a plain and concise statement, without allegations of an
evidentiary nature, asserting facts supporting every
element of a criminal offense and the juvenile's
commission thereof with sufficient precision clearly to
apprise the juvenile of the conduct which is the subject
of the allegation.
N.C. Gen. Stat. § 7B-1802 (2005). “The general rule in this State
and elsewhere is that an indictment for a statutory offense is
sufficient, if the offense is charged in the words of the statute,
either literally or substantially, or in equivalent words.” State
v. Greer, 238 N.C. 325, 328, 77 S.E.2d 917, 920 (1953). Alternatively, “'[i]t is generally held that the language in a
statutorily prescribed form of criminal pleading is sufficient if
the act or omission is clearly set forth so that a person of common
understanding may know what is intended.'” State v. Snyder, 343
N.C. 61, 66, 468 S.E.2d 221, 224 (1996) (quoting State v. Coker,
312 N.C. 432, 435, 323 S.E.2d. 343, 346 (1984)). However,
regardless of the approach, “[t]he authorities are in unison that
an indictment, whether at common law or under a statute, to be good
must allege lucidly and accurately all the essential elements of
the offense endeavored to be charged.” Greer, 238 N.C. at 327, 77
S.E.2d at 919 (emphasis added).
The purpose for these requirements is:
(1) [to provide] such certainty in the statement of the
accusation as will identify the offense with which the
accused is sought to be charged; (2) to protect the
accused from being twice put in jeopardy for the same
offense; (3) to enable the accused to prepare for trial,
and (4) to enable the court, on conviction or plea of
nolo contendere or guilty to pronounce sentence according
to the rights of the case.
Greer, 238 N.C. at 327, 77 S.E.2d at 919. With respect to juvenile
adjudications in particular, this Court has held that “'[n]otice
must be given in juvenile proceedings which would be deemed
constitutionally adequate in a civil or criminal proceeding; that
is, notice must be given the juvenile and his parents sufficiently
in advance of scheduled court proceedings to afford them reasonable
opportunity to prepare, and the notice must set forth the alleged
misconduct with particularity.'” State v. Drummond, 81 N.C. App.
518, 520, 344 S.E.2d 328, 330 (1986) (quoting In re Burrus, 275
N.C. 517, 530, 169 S.E.2d 879, 887 (1969)). However, “[o]ur courts have recognized that while an
indictment should give a defendant sufficient notice of the charges
against him, it should not be subjected to hyper technical scrutiny
with respect to form.” In re S.R.S., 180 N.C. App. at 154, 636
S.E.2d at 280.
“[I]t is not the function of an indictment to bind the
hands of the State with technical rules of pleading;
rather, its purposes are to identify clearly the crime
being charged, thereby putting the accused on reasonable
notice to defend against it and prepare for trial, and to
protect the accused from being jeopardized by the State
more than once for the same crime.”
Id. (quoting Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731).
_________________________
In his first assignment of error, K.J.H. contends the petition
charging possession of a stolen motor vehicle was fatally defective
because it failed to allege all of the essential elements of the
offense. N.C.G.S. § 20-106 provides:
Any person who, with intent to procure or pass title to
a vehicle which he knows or has reason to believe has
been stolen or unlawfully taken, receives or transfers
possession of the same from or to another, or who has in
his possession any vehicle which he knows or has reason
to believe has been stolen or unlawfully taken, and who
is not an officer of the law engaged at the time in the
performance of his duty as such officer shall be punished
as a Class H felon.
N.C. Gen. Stat. § 20-106 (2005). As this statute has been
interpreted, the State “must provide substantial evidence for the
[following] two [essential] elements of the charge against
defendant[:] . . . [(1)] that defendant had possession of the
stolen car[;] . . . [and (2)] that defendant knew or had reason to
know the car was stolen.”
State v. Suitt, 94 N.C. App. 571, 573,380 S.E.2d 570, 571 (1989) (citing
State v. Lofton, 66 N.C. App.
79, 83, 310 S.E.2d 633, 635-36 (1984));
see also State v. Bailey,
157 N.C. App. 80, 86, 577 S.E.2d 683, 688 (2003) (quoting
State v.
Craver, 70 N.C. App. 555, 559, 320 S.E.2d 431, 434 (1984)).
Further, this Court has found that “[c]learly, the purpose of
th[is] statute is to discourage the possession of stolen vehicles
by one who
knows it is stolen
or has reason to believe that it is
stolen.”
State v. Rook, 26 N.C. App. 33, 35, 215 S.E.2d 159, 161
(1975) (emphasis added).
In the present case, K.J.H. led police on a high-speed chase
during the early morning hours of 3 October 2006. When K.J.H. was
stopped, he gave a false name to the officers, but correctly
identified himself as fourteen years old. The juvenile said he ran
from police because he was driving his mother's car and did not
want her to find out. After the officers contacted his mother, the
juvenile was identified as K.J.H. and the officers learned that his
mother did not own the vehicle he was driving. At this time, the
officers believed the vehicle to be stolen, and soon determined
that the owner of the vehicle was Preson Foster, Jr.
When swearing out the juvenile petition, the officer
sufficiently alleged one of the essential elements of the
charge_possession of a stolen or unlawfully taken vehicle_when he
swore: “THE DELINQUENT JUVENILE WAS IN POSSESSION OF A RECENTLY
STOLEN FORD TAURUS OWNED BY PRESON FOSTER JR OF 2400-C S HOLDEN RD
GREENSBORO, NC.” While the officer had a factual basis upon which
to allege the knowledge element of this offense, i.e., the juvenileinitially gave a false name to the officers and misidentified the
owner of the stolen car as his mother, the petition failed to state
facts which sufficiently alleged the essential element of the
charge requiring that defendant “knows or has reason to believe
[the vehicle] has been stolen or unlawfully taken.” N.C. Gen.
Stat. § 20-106. Therefore, the petition does not sufficiently
allege one of the essential elements of the offense and is fatally
defective.
_________________________
In his second assignment of error, K.J.H. contends the
petition charging speeding to elude arrest was fatally defective
because it failed to allege that K.J.H. fled a law enforcement
officer who was engaged in the lawful performance of his duties.
N.C.G.S. § 20-141.5 provides, in part:
(a) It shall be unlawful for any person to operate a
motor vehicle on a street, highway, or public
vehicular area while fleeing or attempting to elude
a law enforcement officer who is in the lawful
performance of his duties. Except as provided in
subsection (b) of this section, violation of this
section shall be a Class 1 misdemeanor.
(b) If two or more of the following aggravating factors
are present at the time the violation occurs,
violation of this section shall be a Class H
felony.
(1) Speeding in excess of 15 miles per hour
over the legal speed limit.
. . . .
(3) Reckless driving as proscribed by G.S.
20-140.
N.C. Gen. Stat. § 20-141.5(a), (b)(1), (b)(3) (2005). The
essential elements of speeding to elude arrest under N.C.G.S.§ 20-141.5(b) include: (1) operation of a motor vehicle; (2) on a
highway or public vehicular area; (3) while fleeing or attempting
to elude a law enforcement officer who is lawfully performing his
or her duties; and (4) while two or more of the enumerated factors
in section 20-141.5(b) are present.
See id.
However, this Court has found that “[u]nlike the offense of
resisting an officer in the performance of his duties, the offense
of fleeing to elude arrest is not dependent upon the
specific duty
the officer was performing at the time of the offense.”
State v.
Teel, __ N.C. App. __, __, 637 S.E.2d 288, 290 (2006). “Therefore,
the specific duty the officer was performing at the time of the
offense is not an essential element of the offense of fleeing to
elude arrest, as defined in [N.C.G.S.] § 20-141.5, and [is] not
required to be set out in the indictment.”
Id.
In the present case, while en route to assist another officer
at a traffic stop on 3 October 2006, the charging officer in this
case heard the sound of skidding tires and saw the Ford Taurus
driven by K.J.H. traveling directly toward his patrol car. The
officer maneuvered his vehicle so as to avoid a collision with the
Ford Taurus and started to pursue the vehicle. When the officer
believed he brought the Ford Taurus to a stop, he opened his patrol
car door to initiate a traffic stop. At this moment, the juvenile
fled in the Ford Taurus and began a high-speed chase with police.
During this chase, K.J.H. ran red lights in a public vehicular area
and traveled in excess of 100 miles per hour in a 35 mile-per-hour
zone. When swearing out the juvenile petition for speeding to elude
arrest, the officer sufficiently alleged the essential elements of
the charge when he swore: “THE DELINQUENT JUVENILE FELONIOUSLY
SPEEDED [sic] TO ELUDE ARREST BY TRAVELING IN EXCESS OF 100 MPH IN
A 35 MPH ZONE, CONSUMED AN IMPAIRING SUBSTANCE AND RECKLESS [sic]
DROVE AS PROSCRIBED BY G.S. 20-140.” While there was also a
factual basis to support the allegation that the law enforcement
officer was “in the lawful performance of his duties,” the officer
failed to allege those facts when swearing out the petition.
See
N.C. Gen. Stat. § 20-141.5(a). However, since this Court has found
that this is not an essential element of the offense, the juvenile
petition charging speeding to elude arrest was not fatally
defective.
In summary, we hold the petition charging speeding to elude
arrest was sufficient to apprise K.J.H. of the essential elements
of the specific charge against him, thus enabling him to prepare an
adequate defense. Therefore, the district court had jurisdiction
to adjudicate this matter and this assignment of error is
overruled. However, we hold that the petition charging possession
of a stolen motor vehicle was fatally defective because it failed
to allege the essential element that the juvenile knew or had
reason to believe the vehicle was stolen or unlawfully taken.
Thus, we must vacate the adjudication of delinquency of that
offense and remand for a new disposition hearing.
Affirmed in part, vacated in part, and remanded.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).
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