State v. Shuler ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-416
Filed: 18 December 2018
Swain County, No. 15CRS000121
STATE OF NORTH CAROLINA
v.
DAVID JOE SHULER, Defendant.
Appeal by Defendant from judgment entered 23 March 2017 by Judge William
H. Coward in Swain County Superior Court. Heard in the Court of Appeals 13
November 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Larissa
Williamson, for the State.
W. Michael Spivey for the Defendant.
DILLON, Judge.
David Joe Shuler (“Defendant”) appeals from a judgment finding him guilty of
statutory sex offense and petitions this Court for review of subsequent orders
requiring him to register as a sex offender and prohibiting contact with the victims.
Because we conclude that the indictment was facially defective, we vacate the
judgment and orders.
I. Background
STATE V. SHULER
Opinion of the Court
In March 2015, Defendant was indicted in two separate indictments for
statutory rape of a person who is thirteen (13), fourteen (14), or fifteen (15) years old.1
N.C. Gen. Stat. § 14-27.7A(b) (2015).2
Defendant was tried for both crimes by a jury. At the close of the State’s
evidence, the trial court dismissed one of the offenses on Defendant’s motion. The
jury found Defendant guilty of the remaining offense. Defendant was sentenced to a
term of imprisonment and was required to register as a sex offender. The court also
issued a no-contact order.
Defendant gave oral notice of appeal in open court and filed a petition for writ
of certiorari seeking review of the trial court’s order requiring him to register as a sex
offender and prohibiting contact with the victims.
II. Analysis
On appeal, Defendant argues that the indictment was facially invalid because
it did not include the name of the victim.3 Indeed, the indictment charging Defendant
does not identify the victim by name, but identifies her merely as “Victim #1.” For
the reasons below, we agree with Defendant.
1Defendant was indicted as an accessory to statutory rape. However, in North Carolina,
pursuant to Section 14-5.2 of our General Statutes, an accessory before the fact is punishable as a
principal felon. N.C. Gen. Stat. § 14-5.2 (2015).
2 Re-codified as N.C. Gen. Stat. § 14-27.25 as of 1 December 2015.
3 Defendant makes other arguments on appeal; however, because of our resolution of his
argument concerning the indictment, we need not address Defendant’s other arguments.
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STATE V. SHULER
Opinion of the Court
An indictment purported to be invalid on its face may be challenged at any
time. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000). The facial
validity of an indictment is reviewed de novo. See State v. Sturdivant, 304 N.C. 293,
307-11, 283 S.E.2d 719, 729-31 (1981).
Our General Statutes compel us to conclude that the indictment in the present
case is fatally defective. Specifically, “[a]t common law it [was] of vital importance
that the name of the person against whom the offense was directed be stated with
exactitude.” State v. Scott, 237 N.C. 432, 433, 75 S.E.2d 154, 155 (1953). As our
Supreme Court explained:
The purpose of setting forth the name of the person who is
the subject on which an offense is committed is to identify
the particular fact or transaction on which the indictment
is founded, so that the accused may have the benefit of one
acquittal or conviction if accused a second time.
Id. at 433-34, 75 S.E.2d at 155 (quoting State v. Angel, 29 N.C. 27, 29 (1846)). This
common law requirement that the victim be named has not been relaxed for
prosecutions under Section 14-27.7A(b) of our General Statutes, the crime for which
Defendant was convicted. Specifically, our General Assembly requires that an
indictment charging this crime must “nam[e] the victim.” N.C. Gen. Stat. § 15-
144.2(a) (2015).
Likewise, our jurisprudence compels us to conclude that the indictment in the
present case is fatally defective. Indeed, we have recognized that an indictment
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STATE V. SHULER
Opinion of the Court
subject to Section 15-144.2(a) of our General Statutes must name the victim. State v.
Dillard, 90 N.C. App. 318, 320, 368 S.E.2d 442, 444 (1988) (holding that “for an
indictment to be legally valid,” it must allege “the victim’s name”); see also State v.
Edwards, 305 N.C. 378, 380, 289 S.E.2d 360, 362 (1982).
The indictment need not include the victim’s full name as we have held that
the use of the victim’s initials may satisfy the “naming” requirement of Section 15-
144.2(a). State v. McKoy, 196 N.C. App. 650, 657-58, 675 S.E.2d 406, 411-12 (2009).
But an indictment which identifies the victim by some generic term is not sufficient.
For instance, in distinguishing McKoy, we held that an indictment which merely
referred to the victim as “the child” was fatally defective. In re M.S., 199 N.C. App.
260, 262-67, 681 S.E.2d 441, 443-46 (2009). Moreover, in a recent unpublished
opinion, we held that a charging document identifying the victim merely as “the
victim” was fatally defective. In re R.A.S., COA16-805, 2017 N.C. App. LEXIS 157,
**7 (N.C. App. Mar. 7, 2017) (“The petition did not include the victim’s name, initials,
or any other means of identifying the victim. By only referring to ‘the victim[,]’ the
petition violates N.C. Gen. Stat. § 15-144.2(a) and is fatally defective.”).
We note another unpublished opinion cited by the State, where a panel of our
Court held that a superseding indictment identifying the victim as “victim 1” was
sufficient. State v. White, COA16-945, 2017 N.C. App. LEXIS 888, *6-14 (N.C. App.
Oct. 17, 2017). However, the holding was based in part on the fact that the original
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STATE V. SHULER
Opinion of the Court
indictment, arrest warrant, and notice of dismissal all gave the full name of the
victim. Id. (holding that even though the original indictment naming the victim was
superseded by an indictment that listed the victim as “victim #1,” the defendant had
already received sufficient notice of the identity of the victim).
We are not persuaded by the State’s argument that the identification of the
perpetrator in the indictment sufficiently apprised the Defendant of who the victim
was in that the indictment identified the perpetrator of the sexual assault. As the
State concedes, the Defendant was not present at the commission of the underlying
crimes, but was only an alleged accessory before the fact. Also, in M.S., cited above,
the indictment identified the perpetrator as the person being charged and further
described the date and location of the act for which he was being charged. And it
seems likely that the defendant in that case subjectively knew the victim’s identity.
However, the charging document was nonetheless held to be defective for failing to
identify the victim. Indeed, while one purpose of an indictment is to put the
defendant on notice of the crime for which he is being charged, naming the victim
satisfies another function of an indictment; namely, to guard against the possibility
of double jeopardy.
Therefore, based on our General Statutes and our jurisprudence, we must
conclude that the indictment for “statutory rape of person 13, 14, or 15 years old” in
15CRS000121 is fatally defective. And since the indictment is fatally defective, the
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STATE V. SHULER
Opinion of the Court
trial court did not have jurisdiction over Defendant. See State v. Simpson, 302 N.C.
613, 616, 276 S.E.2d 361, 363 (1981) (“[A] valid bill of indictment is essential to the
jurisdiction of the court[.]”); accord State v. Stokes, 274 N.C. 409, 410-11, 163 S.E.2d
770, 772 (1968) (“It is hornbook law that it is an essential of jurisdiction that a
criminal offense should be sufficiently charged in a warrant or an indictment.”). As
such, we have no choice but to vacate the judgment against Defendant. Stokes, 274
N.C. at 415, 163 S.E.2d at 775.
In concluding that the indictment in 15CRS000121 is fatally defective and
thereby arresting the judgment against Defendant, Defendant’s other assignments of
error are moot.
III. Conclusion
We conclude that the indictment for “statutory rape of person 13, 14, or 15
years old” in 15CRS000121 is fatally defective by failing to include the name of the
victim. Therefore, we vacate the judgment. If the State so desires, it may proceed
against Defendant on a legally sufficient indictment. State v. Thornton, 251 N.C. 658,
662, 111 S.E.2d 901, 904 (1960).
VACATED.
Judge BRYANT and ZACHARY concur.
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