State v. Oldroyd ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-595
Filed: 19 May 2020
Yadkin County No. 13 CRS 000060-62
STATE OF NORTH CAROLINA
v.
MARC PETERSON OLDROYD, Defendant.
Appeal by Defendant from order entered 9 March 2017 by Judge Michael D.
Duncan in Yadkin County Superior Court. Heard in the Court of Appeals 3 March
2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Sherri H.
Lawrence, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Emily
Holmes Davis, for defendant-appellant.
MURPHY, Judge.
Indictments must state all essential and necessary elements of an offense in
order to bestow the trial court with jurisdiction. Armed robbery is a statutory
enhancement of the common law offense of robbery, and under the common law
robbery is a crime against the person. Indictments for crimes against the person
must specifically state the name of the victim. As a result, an indictment for
attempted armed robbery must name the victim, and failure to do so renders the
indictment fatally defective. Where an indictment for attempted armed robbery is
STATE V. OLDROYD
Opinion of the Court
fatally defective for failing to name any victim, we must vacate the judgment based
upon that indictment. Further, where part of a plea agreement is repudiated, the
entirety of the plea must be vacated.
Here, pursuant to a plea agreement, Defendant entered a guilty plea to a
reduced charge of second-degree murder, attempted armed robbery, and conspiracy
to commit armed robbery for which he received a consolidated sentenced of 120 to 153
months. Defendant later claimed, in his Motion for Appropriate Relief, that the
indictment for attempted armed robbery was fatally defective in failing to name any
victim. The trial court entered an order denying this claim, which we now reverse.
Defendant’s indictment for attempted armed robbery must have named a victim and
was fatally defective in not doing so. We vacate the judgment for attempted armed
robbery based on this indictment. Additionally, because the judgment entered on
attempted armed robbery was pursuant to a plea agreement with the State, we vacate
the entirety of the underlying plea agreement and remand to the trial court for
further proceedings.
BACKGROUND
On 5 October 1996, Defendant, Marc Peterson Oldroyd, along with Brian
Whitaker (“Whitaker”) and Scott Sica (“Sica”), planned to rob a Huddle House in
Jonesville, using two weapons, a .9mm Beretta and a .357 Magnum. Whitaker and
Sica used a stolen truck for the robbery while Defendant was waiting in a separate
-2-
STATE V. OLDROYD
Opinion of the Court
get-away vehicle owned by Whitaker. Whitaker and Sica drove the stolen truck to
the back entrance of the Huddle House and Sica, armed with a .9mm Beretta,
attempted to enter via the back entrance. This entrance was locked so Whitaker and
Sica left. At the time of Sica’s attempted entrance, Defendant was in an adjacent
parking lot where he could see Whitaker and Sica. Shortly after leaving, a police
officer stopped Whitaker and Sica’s vehicle on the highway, asked them to step out of
the car, and was given permission to search the vehicle.
While Whitaker and Sica were pulled over, Defendant drove by them and
circled back around. When it became clear the police officer was going to find the
materials they planned to use for the robbery, Sica shot and killed the police officer.
Defendant again drove by the location and saw there were now four police cars where
Whitaker and Sica had been pulled over and Whitaker and Sica’s vehicle was no
longer there. Defendant then drove to a relative’s apartment where Whitaker and
Sica later joined him.
Sixteen years later, Defendant was indicted for first-degree murder, attempted
armed robbery, and conspiracy to commit armed robbery. The indictment for
attempted armed robbery with a dangerous weapon stated:
The jurors for the State upon their oath present that on or
about [5 October 1996] and in [Yadkin County] [Defendant]
unlawfully, willfully and feloniously did attempt to steal,
take and carry away another’s personal property, United
States currency, from the person and presence of
employees of the Huddle House located at 1538 NC
-3-
STATE V. OLDROYD
Opinion of the Court
Highway 67, Jonesville, North Carolina. [Defendant]
committed this act by having in possession and with the
use and threatened use of a firearm, a 9mm handgun,
whereby the life [sic] of the Huddle House employees was
[sic] threatened and endangered.
On 2 June 2014, pursuant to a plea agreement with the State, Defendant pleaded
guilty to a reduced charge of second-degree murder, attempted armed robbery, and
conspiracy to commit armed robbery. Pursuant to the plea agreement, all three
convictions were consolidated and Defendant was sentenced to an active term of 120
to 153 months.
On 9 June 2015, Defendant filed a motion for appropriate relief (“MAR”) in
which he argued, inter alia, that the indictment for attempted armed robbery with a
dangerous weapon was “fatally flawed in that it does not name a victim.” Defendant
argued this flaw meant “the State failed to establish subject matter jurisdiction over
all counts. If the court has no jurisdiction over the subject matter of the action, the
judgment in the action is void.” On 9 March 2017, the trial court found “as a matter
of law there [were] no fatal defects in the indictments” and denied the MAR. On 26
November 2018, Defendant filed a petition for writ of certiorari requesting our review
of the trial court’s denial of his MAR. The State did not file a response. A panel of
this Court issued a writ of certiorari for the limited "purpose of reviewing the
conclusion [in the order denying Defendant’s MAR] that 'there are no fatal defects in
[Defendant’s] indictments' in the order of [the trial court] entered 9 March 2017."
ANALYSIS
-4-
STATE V. OLDROYD
Opinion of the Court
A. Standard of Review
“When a trial court’s findings on a motion for appropriate relief are reviewed,
these findings [of fact] are binding if they are supported by competent evidence and
may be disturbed only upon a showing of manifest abuse of discretion. However, the
trial court’s conclusions [of law] are fully reviewable on appeal.” State v. Lutz, 177
N.C. App. 140, 142, 628 S.E.2d 34, 35 (2006) (quoting State v. Wilkins, 131 N.C. App.
220, 223, 506 S.E.2d 274, 276 (1998)). We apply the law governing indictments to
Defendant’s indictment for attempted armed robbery “anew and freely substitute[]
[our] own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628,
632-33, 669 S.E.2d 290, 294 (2008) (internal marks omitted).
Defendant argues the indictment for attempted armed robbery was defective
and the trial court had no jurisdiction to enter the plea for this offense. “[W]here an
indictment is alleged to be invalid on its face, thereby depriving the trial court of its
jurisdiction, a challenge to that indictment may be made at any time, even if it was
not contested in the trial court.” State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326,
341. “The sufficiency of an indictment is a question of law reviewed de novo.” State
v. White, 372 N.C. 248, 250, 827 S.E.2d 80, 82 (2019).
B. Sufficiency of Indictments
Our Supreme Court has clearly outlined the requirements for a sufficient
indictment:
-5-
STATE V. OLDROYD
Opinion of the Court
Generally, an indictment is fatally defective if it fails to
state some essential and necessary element of the offense
of which the defendant is found guilty. . . . While it is not
the function of an indictment to bind the hands of the State
with technical rules of pleading, . . . the indictment must
fulfill its constitutional purposes—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. at 250-251, 827 S.E.2d at 82 (internal citations and marks omitted). The
consequences of an invalid indictment are equally clear; an invalid indictment
requires our Court to vacate any conviction based upon it. Id. at 250, 827 S.E.2d at
82.
Defendant challenges the sufficiency of his indictment for attempted armed
robbery; thus, we must evaluate his indictment based on the essential and necessary
elements of this offense. The essential and necessary elements of armed robbery are
“(1) the unlawful taking or an attempt to take personal property from the person or
in the presence of another (2) by use or threatened use of a firearm or other dangerous
weapon (3) whereby the life of a person is endangered or threatened.” State v.
Ingram, 160 N.C. App. 224, 226, 585 S.E.2d 253, 255 (2003), aff’d, 358 N.C. 147, 592
S.E.2d 687 (2004).
Defendant’s indictment for attempted armed robbery contained the following
language:
The jurors for the State upon their oath present that on or
about [5 October 1996] and in [Yadkin County] [Defendant]
-6-
STATE V. OLDROYD
Opinion of the Court
unlawfully, willfully and feloniously did attempt to steal,
take and carry away another’s personal property, United
States currency, from the person and presence of
employees of the Huddle House located at 1538 NC
Highway 67, Jonesville, North Carolina. [Defendant]
committed this act by having in possession and with the
use and threatened use of a firearm, a 9mm handgun,
whereby the life [sic] of the Huddle House employees was
[sic] threatened and endangered.
(Emphasis added). The indictment alleges (1) an unlawful attempt to take money
from the person and presence of the Huddle House employees, (2) with the use or
threatened use of a .9mm handgun, (3) which threatened the lives of those employees
and at first blush appears to cover all essential elements of attempted armed robbery.
Despite generally satisfying the essential elements, the issue in this case is the
amount of specificity required when identifying victims in an indictment for
attempted armed robbery in order to bestow jurisdiction on the trial court. Defendant
argues the indictment must have included the actual names of the victims. The State
disagrees and urges us to find the indictment reasonably identified the victims as
"employees of the Huddle House" given that the date and location are provided.
Based on binding precedent, we conclude the indictment was required to name a
victim.
Attempted armed robbery is a crime against the person. N.C.G.S. § 14-87,
which outlines the elements of armed robbery, falls within the subchapter titled
“Offenses Against Property” and not “Offenses Against the Person.” N.C.G.S. § 14-
-7-
STATE V. OLDROYD
Opinion of the Court
87 (2019). However, despite seemingly being categorized by the legislature as a crime
against property, we have held
[N.C.G.S.] § 14-87 does not create a new crime, it merely
increases the punishment which may be imposed for
common law robbery where the perpetrator employs a
weapon. . . . The focus of [N.C.G.S. § 14-87] then is not the
creation of a new crime for commission of an offense with a
firearm, but the punishment of a specific person who has
committed a robbery which endangers a specific victim.
State v. Gibbons, 303 N.C. 484, 490, 279 S.E.2d 574, 578 (1981) (internal citations
omitted). Common law robbery jurisprudence applies to statutory armed robbery.
“Common law robbery[] . . . is the felonious taking of money or goods of any
value from the person of another, or in his presence, against his will, by violence or
putting him in fear. . . . It is a crime against the person, effectuated by violence or
intimidation.” State v. Mann, 317 N.C. 164, 172, 345 S.E.2d 365, 370 (1986)
(emphasis added) (internal citations omitted). Armed robbery is equally a crime
against the person, the only difference being the use of a firearm or other dangerous
weapon. Given that an attempted crime is indistinguishable from a completed crime
in terms of the subject of the crime, attempted armed robbery, armed robbery, and
common law robbery are all crimes against the person. Characterizing attempted
armed robbery as a crime against the person is consistent with our prior holdings on
indictments. See State v. Burroughs, 147 N.C. App. 693, 696, 556 S.E.2d 339, 342
(2001) (“In an indictment for robbery with firearms or other dangerous weapons
([N.C.G.S. § 14-87]), the gist of the offense is not the taking of personal property, but
-8-
STATE V. OLDROYD
Opinion of the Court
a taking or attempted taking by force or putting in fear by the use of firearms or other
dangerous weapon. While an indictment for robbery (or attempted robbery) with a
dangerous weapon need not allege actual legal ownership of property, the indictment
must at least name a person who was in charge or in the presence of the property at
the time of the robbery, if not the actual, legal owner.") (internal citations and marks
omitted).
The logic underlying the requirement that crimes against the person must
identify the victim by name in an indictment is longstanding; where the subject of a
crime is a person, indictments should name that person “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.” State v. Sturdivant, 304 N.C. 293, 311, 283
S.E.2d 719, 731 (1981) (citing State v. Gregory, 223 N.C. 415, 27 S.E. 2d 140 (1943)).
See also White, 372 N.C. at 250-251, 827 S.E.2d at 82.
Our Supreme Court has held
[i]t is of vital importance that the name of the person
against whom the offense was directed be stated with
exactitude. . . . 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.
-9-
STATE V. OLDROYD
Opinion of the Court
State v. Scott, 237 N.C. 432, 433-434, 75 S.E.2d 154, 155 (1953). Although Scott was
an assault case, both assault and armed robbery are crimes against the person and
identifying that person with exactitude applies equally.
We have reaffirmed the importance of naming victims in indictments in the
context of other crimes against the person. In State v. McKoy, 196 N.C. App. 650, 675
S.E.2d 406 (2009), a rape and sex offense case governed by a statute on short form
indictments, we “implicitly acknowledge[d] that the indictment must name the victim
in some fashion [under the governing statute].” In re M.S., 199 N.C. App. 260, 266,
681 S.E.2d 441, 445 (2009). Although we are not bound by that statute in the case
before us, we have held that McKoy was consistent with Scott by “confirm[ing] that
the identity of the victim is still of critical importance in avoiding double jeopardy
issues.” Id.We are bound by the reasoning of our Supreme Court in Scott that clearly
requires that “the name of the person against whom the offense was directed be stated
with exactitude.” Scott, 237 N.C. at 433, 75 S.E.2d at 155. We cannot hold that
“employees of the Huddle House located at 1538 NC Highway 67, Jonesville, North
Carolina [on 5 October 1996]” was sufficient; specifically naming a victim of the
attempted armed robbery was required. By failing to do so, the indictment for
attempted armed robbery was fatally defective and the trial court had no jurisdiction
to enter judgment.
- 10 -
STATE V. OLDROYD
Opinion of the Court
C. Remedy
Defendant “requests this Court to vacate his conviction for attempted armed
robbery.” However, our Supreme Court has held that a “[d]efendant cannot repudiate
[a plea agreement] in part without repudiating the whole.” State v. Rico, 218 N.C.
App. 109, 122, 720 S.E.2d 801, 809 (Steelman, J., dissenting), rev'd for reasons stated
in dissent, 366 N.C. 327, 734 S.E.2d 571 (2012); see also State v. Pless, 249 N.C. App.
668, 791 S.E.2d 869 (2016). Here, Defendant pleaded guilty to a reduced charge of
second-degree murder, attempted armed robbery, and conspiracy to commit armed
robbery with a consolidated sentence. Defendant was to be sentenced to 120 to 153
months on the second-degree murder with “[t]he remaining charges . . . to be
consolidated for judgment into the second[-]degree murder charge with no additional
time.” By successfully having us vacate the judgment for attempted armed robbery,
which was part of Defendant’s plea agreement, we are obliged to vacate the whole
plea agreement. The parties can agree to a new plea agreement below or the State
may seek a new indictment for attempted armed robbery and/or proceed to trial “on
the charges contained in the indictments.” State v. Green, 831 S.E.2d 611, 618 (N.C.
Ct. App. 2019); see also State v. Abbott, 217 N.C. App. 614, 619, 720 S.E.2d 437, 441
(2011).
CONCLUSION
- 11 -
STATE V. OLDROYD
Opinion of the Court
We reverse the trial court’s order concluding that “there are no fatal defects
in the indictments,” as Defendant’s indictment for attempted armed robbery must
have named a victim to be valid. The indictment was fatally defective in not doing
so, and we must vacate the judgment based upon it. Since we are setting aside a
judgment that was entered pursuant to a plea agreement, we vacate the entirety of
the plea agreement and remand the entire case back to Yadkin County Superior
Court.
REVERSED, VACATED, AND REMANDED.
Judge STROUD concurs.
Judge BRYANT dissents with a separate opinion.
- 12 -
No. 19-595 – State v. Oldroyd
BRYANT, Judge, dissenting.
The majority holds that the indictment charging defendant with attempted
armed robbery with a dangerous weapon requires the name of at least one victim of
the attempted robbery. Where this indictment refers to a specific group of people—
the “employees of the Huddle House” or “Huddle House employees”—I believe the
description of the victims is sufficient. Thus, I respectfully dissent.
“A bill of indictment is legally sufficient if it charges the substance of the
offense and puts the defendant on notice that he will be called upon to defend against
proof of the manner and means by which the crime was perpetrated.” State v. Ingram,
160 N.C. App. 224, 225, 585 S.E.2d 253, 255 (2003) (citation omitted). As stated
above, common law robbery, statutory armed robbery, and attempted armed robbery
are crimes against the person. “Common law robbery[] . . . is the felonious taking of
money or goods of any value from the person of another, or in his presence, against
his will, by violence or putting him in fear. It is a crime against the person,
effectuated by violence or intimidation.” State v. Mann, 317 N.C. 164, 172 345 S.E.2d
365, 370 (1986) (citations omitted).
The majority, quoting our Supreme Court’s opinion in State v. Sturdivant, 304
N.C. 293, 283 S.E.2d 719 (1981) (reviewing first-degree rape and kidnapping
convictions), states that
where the subject of a crime is a person, indictments should
name that person “to identify clearly the crime being
charged, thereby putting the accused on reasonable notice
STATE V. OLDROYD
BRYANT, J., dissenting
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. at 311, 283 S.E.2d at 731 (citing State v. Gregory, 223 N.C. 415, 27 S.E. 2d 140(1943)); see also State v. Scott, 237 N.C. 432, 433–34, 75 S.E.2d 154, 155 (1953) (“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.” (citation omitted)).
With respect to indictments charging a defendant with armed robbery, our
Supreme Court has reasoned that
it is not necessary that ownership of the property be laid in
a particular person in order to allege and prove armed
robbery. The gist of the offense of robbery is the taking by
force or putting in fear. An indictment for robbery will not
fail if the description of the property is sufficient to show it
to be the subject of robbery and negates the idea that the
accused was taking his own property.
State v. Spillars, 280 N.C. 341, 345, 185 S.E.2d 881, 884 (1972) (citing State v. Rogers,
273 N.C. 208, 159 S.E.2d 525; State v. Guffey, 265 N.C. 331, 144 S.E.2d 14; State v.
Sawyer, 224 N.C. 61, 29 S.E.2d 34) (emphasis added). In State v. Burroughs, 147
N.C. App. 693, 556 S.E.2d 339 (2001), this Court held that
[w]hile an indictment for robbery (or attempted robbery)
with a dangerous weapon need not allege actual legal
ownership of property, the indictment must at least name
a person who was in charge or in the presence of the
2
STATE V. OLDROYD
BRYANT, J., dissenting
property at the time of the robbery, if not the actual, legal
owner. If the defendant needs further information, he
should move for a bill of particulars.
Id. at 696, 556 S.E.2d at 342 (emphasis added) (citation omitted). Later, in State v.
Thompson, 359 N.C. 77, 604 S.E.2d 850 (2004), addressing an argument challenging
the variance between the victim set forth in the indictment and the evidence
presented at trial, our Supreme Court provided the following:
It is well established that an indictment for armed robbery
need not allege that the property taken “be laid in a
particular person.” State v. Spillars, 280 N.C. 341, 345, 185
S.E.2d 881, 884 (1972). . . . “The gravamen of the offense
is the endangering or threatening of human life by the use
or threatened use of firearms or other dangerous weapons
in the perpetration of or even in the attempt to perpetrate
the crime of robbery.” [State v. Ballard, 280 N.C. 479, 485,
186 S.E.2d 372, 375 (1972).] “An indictment for robbery will
not fail if the description of the property is sufficient to
show it to be the subject of robbery and negates the idea
that the accused was taking his own property.” Spillars,
280 N.C. at 345, 185 S.E.2d at 884; see also State v. Pratt,
306 N.C. 673, 681, 295 S.E.2d 462, 467 (1982) (“As long as
it can be shown defendant was not taking his own property,
ownership need not be laid in a particular person to allege
and prove robbery”); State v. Jackson, 306 N.C. 642, 650–
51, 295 S.E.2d 383, 388 (1982) (“As long as the evidence
shows the defendant was not taking his own property,
ownership is irrelevant. . . . A taking from one having the
care, custody or possession of the property is sufficient”).
Id. at 107–08, 604 S.E.2d at 872.
Here, on 28 January 2013, defendant was indicted for the offense of attempted
armed robbery with a dangerous weapon. As stated,
3
STATE V. OLDROYD
BRYANT, J., dissenting
[t]he jurors for the State upon their oath present that on or
about [5 October 1996] . . . in [Yadkin County] . . . the
defendant . . . unlawfully, willfully and feloniously did
attempt to steal, take and carry away another’s personal
property, United States currency, from the person and
presence of employees of the Huddle House located at 1538
NC Highway 67, Jonesville, North Carolina. The defendant
committed this act by having in possession and with the
use and threatened use of a firearm, a 9mm handgun,
whereby the life [sic] of the Huddle House employees was
[sic] threatened and endangered.
Defendant does not challenge that the description of his “attempt to steal, take
and carry away another’s personal property, United States currency, from the person
and presence of employees of the Huddle House” was sufficient to show the currency
to be the subject of robbery and negated the idea that defendant was taking his own
property. See id. Moreover, I would hold that the description of those persons whose
lives were threatened or endangered—the “employees of the Huddle House” or
“Huddle House employees”—was sufficient to put “defendant on notice that he will
be called upon to defend against proof of the manner and means by which the crime
was perpetrated.” Ingram, 160 N.C. App. at 225, 585 S.E.2d at 255. Should
defendant have needed further identification of the alleged victims (such as, in
preparation for trial), defendant could have moved for a bill of particulars. See
Burroughs, 147 N.C. App. at 696, 556 S.E.2d 342. But defendant rather than proceed
to trial, defendant entered into a plea agreement with the State.
4
STATE V. OLDROYD
BRYANT, J., dissenting
Along with the charged offense of attempted robbery with a dangerous weapon,
defendant pled guilty to charges of conspiracy to commit robbery with a dangerous
weapon and second-degree murder. Per the terms of defendant’s plea agreement
Defendant is to be sentenced in the mitigated range on the
Class B2 offense of second degree murder . . . . The
remaining charges of attempted robbery with a dangerous
weapon and conspiracy to commit robbery with a
dangerous weapon are to be consolidated for judgment into
the second degree murder charge with no additional time.
(emphasis added). On 2 June 2014, the trial court entered a consolidated judgment
in accordance with defendant’s plea agreement. Over a year later, defendant filed an
MAR in which he raised five grounds for setting aside his conviction, including a lack
of jurisdiction. Defendant asserted that
[t]he True Bill of Indictment for Attempted Robbery
with a Dangerous Weapon is fatally flawed, and a
defective indictment is a prime example of a trial
court’s lack of jurisdiction. State v. Ellis (2005) and
State v. Wagner (2002). The indictment is flawed in
that it fails to allege any person whose life might
have been threatened or endangered. State v.
Burroughs, (2001), State v. Moore 305 S.E.2d 542(1983), State v. Setzer 301 S.E.2d 107 (1983), State
v. Matthews, 358 N.C. 102, 591 S.E.2d 535 (2004).
The indictment must allege the essential elements
of the crime charged, as required by the North
Carolina Constitution, Article I, Section 22, and N.C.
Gen. Stat. 15-144, and the 5th and 14th
Amendments to the U.S. Constitution, State v.
Sturdivant, N.C. 283 S.E.2d 719 (1981), and State v.
Crabtree 212 S.E.2d 103 (1975).
5
STATE V. OLDROYD
BRYANT, J., dissenting
On 9 March 2017, the trial court responded by denying defendant’s MAR. The
MAR hearing court stated that it “finds and concludes as a matter of law there are no
fatal defects in the indictments.”
On 6 January 2018, defendant submitted a supplemental motion for
appropriate relief asserting that
a defendant at any time after verdict may by a motion for
appropriate relief, raise the ground that evidence is
available which was unknown or unavailable to the
defendant at the time of trial, which could not with due
diligence have been discovered or made available at that
time . . . and which has a direct and material bearing upon
the defendant’s eligibility for the death penalty or the
defendant’s guilt or innocence. A motion based upon such
newly discovered evidence must be filed within a reasonable
time of its discovery.
(emphasis added). Defendant then proceeded to re-assert his challenge to the
elements of the indictment charging him with the offense of attempted robbery with
a dangerous weapon, some three-and-a-half years after entry of his guilty plea. In an
order entered 16 July 2018, the MAR hearing court denied defendant’s supplemental
motion for appropriate relief, in pertinent part, on the basis that the arguments had
previously been raised in the original MAR and ruled upon. Despite consistent
holdings of our Supreme Court that the property taken or attempted to be taken need
not “be laid in a particular person,” Spillars, 280 N.C. at 345, 185 S.E.2d at 884, and
even a variance between the individual named in such an indictment and the
evidence established is not fatal to the armed robbery charge, see Thompson, 359 N.C.
6STATE V. OLDROYD
BRYANT, J., dissenting
at 107–08, 604 S.E.2d at 872—now, before this Court on certiorari review of the MAR
orders, a majority of the panel holds that defendant’s 2013 indictment is invalid for
failure to name a victim. This, despite that the indictment identifies a specific group
of victims whom defendant could have sought the names of by a request for a bill of
particulars. See Burroughs, 147 N.C. App. at 696, 556 S.E.2d 342. The majority fails
to directly support its position with any prior holding of this Court or our Supreme
Court. The majority’s use of cases involving victims of rape and sexual assault are
inapposite. I am unaware of any cases determining that a trial court lacked
jurisdiction and reversibly erred in entering judgment pursuant to an indictment that
did not include the specific name of victims of an attempted armed robbery but where,
as here, the indictment identifies a specific group of employees of a particular
business as the victims. Under the majority’s reasoning which I think is misguided
and not legally supported, defendant’s 2014 judgment and commitment on the
charges of second-degree murder, attempted robbery with a dangerous weapon, and
conspiracy to commit robbery with a dangerous weapon consolidated in accordance
with his plea is to be reversed in its entirety.
For the foregoing reasons, I would hold that defendant’s indictment for
attempted armed robbery with a dangerous weapon contains a sufficient description
of the victims, such as to not render the indictment fatally defective, and to support
the trial court’s jurisdiction to accept defendant’s guilty plea. Accordingly, I would
7
STATE V. OLDROYD
BRYANT, J., dissenting
uphold the MAR hearing courts 9 March 2017 and 16 July 2018 orders denying
defendant’s MAR made on the basis of a fatally defective indictment.
8