State v. CollinsÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-659
Filed: 16 February 2016
Beaufort County, No. 12 CRS 52879-80
STATE OF NORTH CAROLINA
v.
ANFERNEE MAURICE COLLINS
Appeal by defendant from judgment entered 14 August 2014 by Judge
Wayland J. Sermons, Jr. in Beaufort County Superior Court. Heard in the Court of
Appeals 19 November 2015.
Attorney General Roy Cooper, by Assistant Attorney General Alexandra Gruber,
for the State.
The Phillips Black Project, by John R. Mills, for defendant-appellant.
TYSON, Judge.
Anfernee Maurice Collins (“Defendant”) appeals from judgments entered
following his conviction of four counts of first-degree rape of a child. We vacate three
of Defendant’s four convictions and arrest the judgments for those three convictions
for lack of jurisdiction, find no error on the fourth conviction, and remand for
resentencing and rehearing on the imposition of lifetime satellite-based monitoring.
I. Background
STATE V. COLLINS
Opinion of the Court
A.B. testified to four acts of sexual intercourse, which occurred between her
and Defendant in 2011. On 8 April 2013, Defendant was indicted in two separate
documents for four counts of first-degree rape of a child. All four charges were stated
in identical language and two counts were alleged in each indictment. According to
the indictments, the four offenses allegedly occurred between “January 1, 2011 and
November 30, 2011.” The jury convicted Defendant of all four offenses. The offenses
were consolidated and Defendant was sentenced to two consecutive terms of 192 to
240 months in prison. Upon release from prison, Defendant was also ordered to be
subject to satellite-based monitoring for the remainder of his natural life.
A. First Incident
A.B. was fourteen years old when she testified at trial in 2014. She testified
the first incident of sexual intercourse occurred in the spring or summer of 2011,
while she was a student in the fourth grade. A.B. told the investigating officer the
incident occurred “towards the end of the school year. [She] advised that it was
summer time.”
A.B.’s grandmother had dropped A.B. off at her aunt’s house. When she
arrived, Defendant and his mother were both in the home. A.B. fell asleep on the
couch. Her aunt, Defendant’s mother, left the home to go to work. When A.B. awoke,
she and Defendant began talking. Defendant asked A.B. what sports she liked to
play, and A.B. told Defendant she liked to play basketball at the local recreational
-2-
STATE V. COLLINS
Opinion of the Court
center. Defendant told her to be careful about walking to the center alone. A.B.
responded, “whatever,” and walked to the refrigerator to get a drink.
Defendant told A.B. “not to talk to him like that,” grabbed A.B. by the arm, and
pulled her into his bedroom. Defendant pushed A.B. onto the bed and forced himself
onto her despite her requests to stop. A.B. testified that Defendant held her down,
pulled her pants and his pants down, and “put his private area in [her] private area.”
Afterward, A.B. testified Defendant stated “not to tell anybody and he was going to
kill everybody [she] knew.”
B. Second Incident
The second incident occurred on a day when A.B. was visiting at a friend’s
house. She developed a serious headache and called her grandmother. Her
grandmother was unable to pick her up and told her to walk four or five houses down
the street to her aunt’s house. Defendant was present at the house when A.B. arrived.
A.B. went into her aunt’s bedroom alone to lay down and watch television. Defendant
entered the bedroom about ten minutes later. A.B. tried to leave the room, but
Defendant blocked her way. He held her down on the bed, pulled up her skirt, and
forcibly engaged in sexual intercourse with her.
A.B. testified she was not sure exactly when the second incident occurred. The
following exchange occurred during direct examination of A.B.:
Q: Do you remember when that was? Was it still in the
fourth grade?
-3-
STATE V. COLLINS
Opinion of the Court
A: Yes, sir.
Q: If you are not sure it’s okay. Make sure.
A: I’m not really sure.
The investigating officer testified A.B. told him the second incident had occurred
“during the first semester of her fifth grade year.”
C. Third Incident
A.B. also did not recall when in 2011 the third incident occurred. A.B. testified
she was at her aunt’s house and Defendant gave her a pill. She took the pill and did
not remember anything until she woke up while Defendant was “having sex” with
her. A.B. was “drowsy, sleepy,” and Defendant was “inside her” for “a couple of
minutes.” After the incident, A.B. “just put [her] clothes back on and went back to
sleep.”
D. Fourth Incident
The final incident occurred “around Thanksgiving” of 2011. A.B. was alone at
her aunt’s house when Defendant came in the back door. He pushed her down on the
couch, kissed her on the mouth, and stated he was “going to go away for a while.”
Defendant then pulled down A.B.’s pants and engaged in intercourse with her.
Over a year later, in November of 2012, A.B. told her stepmother she had been
raped by Defendant. On the same day, A.B.’s stepmother took her to speak with a
-4-
STATE V. COLLINS
Opinion of the Court
law enforcement officer. Defendant was seventeen years old when he was arrested
on 21 December 2012.
E. Defendant’s Age
Defendant’s arrest warrants erroneously stated his date of birth as 14
September 1994. According to the uncontroverted evidence presented by both the
State and Defendant, Defendant was born on 14 September 1995. He turned sixteen
years old on 14 September 2011. Defendant would have been either fifteen or sixteen
years old during the relevant time period between 1 January 2011 and 30 November
2011, when A.B. alleged all the offenses occurred, and as is alleged in both
indictments.
Defense counsel moved to dismiss all charges at the close of the State’s
evidence “based on the fact that the State has not proved beyond a reasonable doubt
that [Defendant] committed these various acts that he’s charged with.”
The following exchange occurred:
THE COURT: . . . And the Defendant’s date of birth that
is in evidence?
PROSECUTOR: That is in evidence is September 14th
1995.
. . . .
THE COURT: So during the year 2011, 2012, the victim
would be 11 and 12 years old?
-5-
STATE V. COLLINS
Opinion of the Court
PROSECUTOR: Yes. The incidents all occurred before her
– either before her birthday in 2011, which would make her
10 years old or 11 years old at the time of the incidents.
THE COURT: So they all allegedly occurred in 2011?
PROSECUTOR: Yes, sir.
THE COURT: And the Defendant’s date of birth of 9/14/95
would have made him, in 2011, 17 or 18 years old?
PROSECUTOR: Seventeen.
THE COURT: Seventeen? So the victim, according to the
State’s evidence, would be less than 13?
PROSECUTOR: Yes, sir.
THE COURT: The Defendant was at least 12 years old?
PROSECUTOR: Yes, sir.
THE COURT: And he was at least four years older than
the victim?
PROSECUTOR: Correct.
Neither party corrected the mathematical error in calculating Defendant’s age
as fifteen years old until he reached his sixteenth birthday on 14 September 2011.
Defendant has filed a motion for appropriate relief (MAR) in this Court. A copy of
Defendant’s birth certificate, attesting his date of birth as 14 September 1995, is
attached to Defendant’s MAR.
II. Issues
-6-
STATE V. COLLINS
Opinion of the Court
Defendant argues: (1) the State failed to meet its burden to prove the existence
of subject matter jurisdiction for the first three offenses; (2) the indictments were
insufficient to establish subject matter jurisdiction for any count, after the
indictments failed to allege dates specific enough to show Defendant was at least
sixteen years old at the time the alleged offenses occurred; and, (3) this case should
be remanded to the trial court for a hearing on the reasonableness of lifetime satellite-
based monitoring in light of Grady v. North Carolina, __ U.S. __, 191 L. Ed. 2d 459
(2015).
Defendant also argues his MAR should be granted where: (1) the superior
court lacked jurisdiction over the counts during which Defendant was less than
sixteen years old at the time of the offenses; (2) trial counsel was prejudicially
ineffective for failing to move to dismiss three of the charges at the close of the State’s
evidence, after the State failed to provide any substantial evidence tending to show
Defendant was at least sixteen years old at the time of the offense; and, (3) trial
counsel was ineffective and prejudiced Defendant for failing to request a special
verdict on those three charges.
III. Subject Matter Jurisdiction
A. Standard of Review
“Whether a trial court has subject-matter jurisdiction is a question of law,
reviewed de novo on appeal.” State v. Herman, 221 N.C. App. 204, 209, 726 S.E.2d
-7-
STATE V. COLLINS
Opinion of the Court
863, 866 (2012). “Under a de novo review, the court considers the matter anew and
freely substitutes its own judgment.” In re Appeal of the Greens of Pine Glen Ltd.
P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003) (citing Mann Media, Inc. v.
Randolph Cnty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)). “A court
empowered to hear a case de novo is vested with full power to determine the issues
and rights of all parties involved, and to try the case as if the suit had been filed
originally in that court.” Caswell County v. Hanks, 120 N.C. App. 489, 491, 462 S.E.2d
841, 843 (1995) (citation and internal quotation marks omitted).
B. Defendant’s Age on the Dates of the Offenses
Defendant argues the superior court was without subject matter jurisdiction
on the first three offenses, because no evidence presented at trial showed Defendant
was at least sixteen years old at the time those offenses were committed. We agree.
The district courts have “exclusive, original jurisdiction over any case involving
a juvenile who is alleged to be delinquent. For purposes of determining jurisdiction,
the age of the juvenile at the time of the alleged offense governs.” N.C. Gen. Stat. §
7B-1601(a) (2013) (emphasis supplied). “If, however, a juvenile commits a criminal
offense on or after the juvenile’s 16th birthday, the juvenile is subject to prosecution
as an adult in superior court.” State v. Pettigrew, 204 N.C. App. 248, 257, 693 S.E.2d
698, 704 (citing N.C. Gen. Stat. § 7B-1604), appeal dismissed, 364 N.C. 439, 706
S.E.2d 467 (2010).
-8-
STATE V. COLLINS
Opinion of the Court
The Juvenile Code, contained in the North Carolina General Statutes, provides
the exclusive procedure under which a juvenile may be tried for criminal acts in
superior court:
After notice, hearing, and a finding of probable cause the
court may, upon motion of the prosecutor or the juvenile’s
attorney or upon its own motion, transfer jurisdiction over
a juvenile to superior court if the juvenile was 13 years of
age or older at the time the juvenile allegedly committed
an offense that would be a felony if committed by an adult.
If the alleged felony constitutes a Class A felony and the
court finds probable cause, the court shall transfer the case
to the superior court for trial as in the case of adults.
N.C. Gen. Stat. § 7B-2200 (2013) (emphasis supplied).
“The superior court may obtain subject matter jurisdiction over a juvenile case
only if it is transferred from the district court according to the procedure this statute
prescribes.” State v. Dellinger, 343 N.C. 93, 96, 468 S.E.2d 218, 220 (1996) (emphasis
supplied). The superior court does not have original jurisdiction over a defendant
who was fifteen years old on the date of the alleged offense. Id.
In Dellinger, the Supreme Court held both the district court and the superior
court had lost jurisdiction over the accused where he was twelve or thirteen years old
on the date of offense, and who turned eighteen while his appeal from superior court
was pending. Id. The uncontroverted evidence before us shows Defendant was born
on 14 September 1995 and attained the age of sixteen years old on 14 September
2011.
-9-
STATE V. COLLINS
Opinion of the Court
“[W]hen jurisdiction is challenged . . . the State must carry the burden and
show beyond a reasonable doubt that [the court] has jurisdiction to try the accused.”
State v. Batdorf, 293 N.C. 486, 494, 238 S.E.2d 497, 502-03 (1977). The State
conceded during oral argument, and we agree with Defendant and the State that the
evidence showed Defendant was fifteen years old at the time of the first offense.
“When the record shows a lack of jurisdiction in the lower court, the appropriate
action on the part of the appellate court is to arrest judgment or vacate any order
entered without authority.” State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711
(1981). We vacate Defendant’s conviction for the first offense.
With regard to the second incident, A.B. first testified that it occurred while
she was in the fourth grade and then stated she was “not really sure” when it
occurred. According to the investigating officer, A.B. told him the second incident
occurred after the first semester of her fifth grade year had begun. The officer’s
testimony was not offered as substantive evidence, but to corroborate and not
contradict A.B.’s testimony. See State v. Stills, 310 N.C. 410, 415, 312 S.E.2d 443, 447
(1984) (“By definition, a prior statement is admitted only as corroboration of the
substantive witness and is not itself to be received as substantive evidence.”).
A.B. also could not recall when the third rape occurred, or whether it was
before or after school resumed. Whether the second and third rape offenses occurred
while Defendant was fifteen or sixteen years old cannot be determined from the
- 10 -
STATE V. COLLINS
Opinion of the Court
evidence. Even if Defendant had moved for a special verdict, no substantive evidence
was presented from which a jury could find beyond a reasonable doubt that Defendant
was sixteen years old at the time of the commission of either the second or third
offenses. Batdorf, 293 N.C. at 493, 238 S.E.2d at 502. The judgments entered on
Defendant’s second and third convictions must also be vacated for lack of subject
matter jurisdiction in the superior court.
We need not more specifically address the issue in Defendant’s MAR of
whether trial counsel was ineffective and prejudiced Defendant for failure to request
a special verdict on three of the four charges, or to preserve a claim that the State
failed to present sufficient evidence that the superior court had jurisdiction over
Defendant on those charges. “Subject matter jurisdiction cannot be conferred upon a
court by consent, waiver or estoppel, and failure to demur or object to the jurisdiction
is immaterial.” Stark v. Ratashara, 177 N.C. App. 449, 451-52, 628 S.E.2d 471, 473
(2006). Trial counsel’s failure to move to dismiss the charges based on a lack of
subject matter jurisdiction does not preclude this Court from reviewing the issues de
novo and determining whether subject matter jurisdiction exists. Id.
C. Sufficiency of the Indictments
Defendant argues the indictments were facially insufficient to establish subject
matter jurisdiction in the superior court where they: (1) cover a period of time when
Defendant was a juvenile; (2) fail to allege the dates of the offenses with sufficient
- 11 -
STATE V. COLLINS
Opinion of the Court
specificity; and, (3) state the same range of offense dates for all four charges. We
disagree.
We address this issue only with regard to Defendant’s fourth conviction, which
A.B. testified occurred around Thanksgiving of 2011, as Defendant’s other three
convictions are vacated. “A challenge to the facial validity of an indictment may be
brought at any time, and need not be raised at trial for preservation on appeal.” State
v. LePage, 204 N.C. App. 37, 49, 693 S.E.2d 157, 165 (2010). Defendant was tried and
convicted on two bills of indictment in File Nos. 12 CRS 52879 and 12 CRS 52880.
Except for the docket numbers, each indictment is identical and charges two identical
counts of first degree rape of a child. The date of offense on the indictments is alleged
as “January 1, 2011 to November 30, 2011.”
As discussed above, Defendant must have attained at least sixteen years of age
at the time the offenses occurred for the superior court to have jurisdiction over him.
N.C. Gen. Stat. §§ 7B-1601(a), 7B-1604. It is uncontested Defendant turned sixteen
years old on 14 September 2011.
Defendant was fifteen years old and a juvenile from 1 January 2011 until 13
September 2011, the majority of the time period alleged on the indictments. The
superior court would have jurisdiction to enter judgment against Defendant only for
offenses, which occurred from his sixteenth birthday on 14 September 2011 until 30
November 2011.
- 12 -
STATE V. COLLINS
Opinion of the Court
An indictment must assert “facts supporting every element of a criminal
offense and the defendant’s commission thereof with sufficient precision clearly to
apprise the defendant . . . of the conduct which is the subject of the accusation.” N.C.
Gen. Stat. § 15A-924(a)(5) (2013). The purpose of the indictment is to put the
defendant on “notice of the charge against him so that he may prepare his defense
and be in a position to plead prior jeopardy if he is again brought to trial for the same
offense.” State v. Freeman, 314 N.C. 432, 435, 333 S.E.2d 743, 745 (1985). “Generally,
an indictment must include a designated date or period within which the offense
occurred.” State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991).
In cases of sexual assaults on children, our Supreme Court has relaxed the
temporal specificity requisites which must be alleged to support the indictment:
We have stated repeatedly that in the interests of justice
and recognizing that young children cannot be expected to
be exact regarding times and dates, a child’s uncertainty as
to time or date upon which the offense charged was
committed goes to the weight rather than the admissibility
of the evidence. Nonsuit may not be allowed on the ground
that the State’s evidence fails to fix any definite time for the
offense where there is sufficient evidence that defendant
committed each essential act of the offense.
State v. Wood, 311 N.C. 739, 742, 319 S.E.2d 247, 249 (1984) (citations omitted)
(emphasis supplied).
Here, the indictments alleged a period of time which includes from 14
September 2011 to 30 November 2011 when Defendant was sixteen years old and
- 13 -
STATE V. COLLINS
Opinion of the Court
clearly under the jurisdiction of the superior court. The dissenting opinion does not
dispute that substantial evidence presented at trial showed one of the four offenses
occurred “around Thanksgiving,” and within the time period alleged on the
indictment after Defendant turned sixteen years old.
The district court was without jurisdiction over the fourth offense where the
uncontroverted evidence shows it occurred “around Thanksgiving,” after Defendant
had turned sixteen years old the previous September. N.C. Gen. Stat. § 7B-1601(a)
(The district court has “exclusive, original jurisdiction over any case involving a
juvenile who is alleged to be delinquent. For purposes of determining jurisdiction,
the age of the juvenile at the time of the alleged offense governs.”). Only the superior
court had jurisdiction over this offense. Pettigrew, 204 N.C. App. at 257, 693 S.E.2d
at 704.
Under the dissenting opinion’s rationale, the superior court is without
jurisdiction if the defendant is fifteen years old at any time within the alleged range
of offense dates, even if the evidence shows the crime clearly occurred when the
defendant was sixteen years old. This rationale is contrary to our Supreme Court’s
stated purpose for the relaxed temporal specificity requisites to allow allegations in
indictments charging crimes of sexual assaults on children. Wood, 311 N.C. at 742,
319 S.E.2d at 249.
- 14 -
STATE V. COLLINS
Opinion of the Court
A defendant may request a special verdict to require the jury to find the crime
occurred after he was sixteen years old. See State v. Blackwell, 361 N.C. 41, 46-47,
638 S.E.2d 452, 456 (2006), cert. denied, 550 U.S. 948, 167 L. Ed. 2d 1114 (2007) (“A
special verdict is a common law procedural device by which the jury may answer
specific questions posed by the trial judge that are separate and distinct from the
general verdict.”). Likewise, a defendant may move for a bill of particulars if he is
seeking more specificity on the allegations in the indictment. N.C. Gen. Stat. § 15A-
925 (2013); State v. Johnson, 30 N.C. App. 376, 377, 226 S.E.2d 876, 878, cert. denied,
291 N.C. 177, 229 S.E.2d 691 (1976) (“The purpose of a bill of particulars is to give an
accused notice of the specific charge or charges against him and to apprise him of the
particular transactions which are to be brought in question on the trial.”).
The fact that the range of dates alleged for the offenses includes periods of time
when Defendant was not yet sixteen years old, but also alleges a period of time after
Defendant was sixteen years old, does not establish a lack of subject matter
jurisdiction to vacate Defendant’s fourth conviction for rape of a child. This Court
may vacate one count of an indictment, while upholding the valid remaining counts
contained therein. See, e.g., State v. Williams, __ N.C. App. __, __, 774 S.E.2d 880,
886-87 (2015) (vacating one count of PWIMSD on the indictment as fatally defective
and upholding a second count). Even if this Court adopted the rationale and
conclusion in the dissenting opinion, the State would not be barred from obtaining a
- 15 -
STATE V. COLLINS
Opinion of the Court
new indictment charging only the crime, which occurred after Defendant’s sixteenth
birthday. We hold jurisdiction clearly exists in superior court and there is no error
in Defendant’s fourth conviction by the jury for first-degree rape of a child. This
argument is overruled.
D. Disposition
The appropriate disposition is to remand for resentencing on the fourth charge.
See State v. Brown, 350 N.C. 193, 213, 513 S.E.2d 57, 69-70 (1999) (This Court “cannot
assume that the trial court’s consideration of [the vacated convictions] had no affect
[sic] on the sentence imposed.”). As part of Defendant’s resentencing, the trial court
shall also conduct a new hearing on whether the imposition of lifetime satellite-based
monitoring is consistent with Grady, __ U.S. __,191 L. Ed. 2d 459 (2015) (North
Carolina’s satellite-based monitoring program effects a Fourth Amendment search,
and “[t]he reasonableness of a search depends on the totality of the circumstances,
including the nature and purpose of the search and the extent to which the search
intrudes upon reasonable privacy expectations.”).
IV. Conclusion
The State concedes the superior court’s lack of jurisdiction over the first
conviction. No evidence shows Defendant was sixteen years old, and the superior
court was without subject matter jurisdiction to enter judgment on the first three of
Defendant’s four convictions.
- 16 -
STATE V. COLLINS
Opinion of the Court
The judgment entered on the two convictions in File No. 12 CRS 52879 is
vacated. The conviction for Count I of the indictment in File No. 12 CRS 52880 and
the judgment entered thereon is vacated.
The indictments lawfully allege a range of dates during which the offenses
occurred, including periods of time when Defendant was an adult, and are not facially
defective. The indictments allege a period of time when Defendant was sixteen years
old and was lawfully subject to the jurisdiction of the superior court.
Unchallenged evidence shows the fourth offense occurred around
Thanksgiving 2011 and after Defendant’s sixteenth birthday on 14 September 2011.
We find no error regarding the jury’s verdict convicting Defendant of Count II of File
No. 12 CRS 52880. Defendant’s MAR alleging ineffective assistance of counsel is
dismissed for reasons stated in this opinion.
This case is remanded to the superior court for a resentencing hearing on
Count II of File No. 12 CRS 52880 for the jury’s conviction finding Defendant to be
guilty of first-degree rape of a child. The trial court shall also conduct a new hearing
on the imposition of lifetime satellite-based monitoring.
VACATED IN PART, NO ERROR IN PART, DISMISSED IN PART, AND
REMANDED FOR RESENTENCING AND REHEARING ON LIFETIME
SATELLITE-BASED MONITORING.
Judge DIETZ concurs.
Judge STROUD concurs in part and dissents in part in a separate opinion.
- 17 -
No. COA15-659 – State v. Collins
STROUD, Judge, concurring in part and dissenting in part.
I concur with the majority in vacating three of Defendant’s convictions, but I
dissent because I believe that all four indictments failed to confer jurisdiction upon
the superior court.
The evidence against Defendant is disturbing and compelling, and he has been
found guilty of raping a child four times. Any reasonable person would want him
punished and removed from society so that he may not have an opportunity to hurt
another child in any way. But this is just the sort of case in which “we must bear in
mind Lord Campbell’s caution: ‘Hard cases must not make bad laws.’ ” Shearin v.
Lloyd, 246 N.C. 363, 371, 98 S.E.2d 508, 514 (1957) (quoting Mast v. Sapp, 140 N.C.
533, 545, 53 S.E. 350, 354 (1906)). I believe that the superior court did not have
jurisdiction over Defendant under any of the four indictments as written because of
the error as to Defendant’s correct date of birth and because Defendant was under
the age of 16 during over 75% of the time period alleged.
This is a unique case in which a defendant was charged as an adult based upon
a mistake as to his age. We do not know the origin of the mistake as to Defendant’s
age on the arrest warrants. Perhaps it was a mere typographical error, or perhaps
the date was listed incorrectly on another document and the error was not discovered
when the magistrate was preparing the arrest warrants. Inexplicably, no one—
defense counsel, the trial court, or anyone else in the courtroom—realized this basic
mathematical error until after Defendant had been arrested as an adult, indicted as
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
an adult, imprisoned as an adult pending trial for nearly two years, tried as an adult,
and convicted as an adult felon for at least three crimes (and maybe four) which he
committed under the age of 16. Only on appeal did Defendant’s counsel realize the
error as to Defendant’s age. As noted by the majority opinion, it is undisputed that
Defendant was either 15 or 16 years old when all of the alleged criminal acts were
committed, with only the fourth offense arguably occurring after his sixteenth
birthday.1 At the very least, it is a travesty of justice that a juvenile was arrested on
21 December 2012 for offenses he committed under the age of 16 and has been treated
as an adult defendant ever since, and no one noticed it until his convictions were
appealed.
This oversight is even more baffling since the crime charged includes as
elements both the age of the victim and the age of the offender. N.C. Gen. Stat. § 14-
27.2(a)(1), under which Defendant was charged and convicted, defines the crime of
first-degree rape as follows:
A person is guilty of rape in the first degree if the
person engages in vaginal intercourse:
(1) With a victim who is a child under the age of
13 years and the defendant is at least 12 years old
and is at least four years older than the victim[.]
1 The briefs and majority refer to the offense which occurred last as the “fourth” offense or
indictment, and I also will call them the “fourth” for convenience and consistency. All four indictments
are identical and were issued simultaneously and based upon the indictments, there is no way to
distinguish between the alleged offenses. Only the evidence makes this distinction.
2
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
N.C. Gen. Stat. § 14-27.2(a)(1) (2011).
The arrest warrants listed Defendant’s birthday incorrectly; the later
indictments did not mention Defendant’s birthday or age but merely recited the
statutory language above. It is undisputed that the victim was under 13 and the
defendant was at least four years older than her during the entire time period alleged
in the indictments.
The State argues that there is no jurisdictional requirement that a criminal
indictment of an adult must include the defendant’s date of birth or age, and this is
true. See N.C. Gen. Stat. § 15A-924 (2013). Criminal indictments of adults and
juvenile petitions2 are alike in many ways, and one of the similarities is that both
require essentially the same specificity in the description of the alleged criminal
offense. See In re J.F., ___ N.C. App. ___, ___, 766 S.E.2d 341, 345 (2014) (“The
sufficiency of a juvenile petition is evaluated by the same standards applied to
indictments in adult criminal proceedings. The general rule is that an indictment
charging a statutory sexual offense will be sufficient if it is couched in the language
of the statute.”) (citations and quotation marks omitted). In particular, indictments
for sex offenses against children may properly encompass a period of time and need
not allege a specific date of each offense. See State v. Everett, 328 N.C. 72, 75, 399
S.E.2d 305, 306 (1991). Defendant was actually under the age of 16 during over 75%
2
“The pleading in a juvenile action is the petition. The process in a juvenile action is the
summons.” N.C. Gen. Stat. § 7B-1801 (2013).
3
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
of the time period alleged for all four indicted offenses, and there is no way to
determine which offense is which based on the four identical indictments.
Certainly, the State could properly have filed juvenile petitions against
Defendant for three offenses alleging a time period from 1 January 2011 until 13
September 2011, or the day before Defendant’s sixteenth birthday, and an indictment
for a fourth offense, alleging a time period from 14 September 2011 until 30 November
2011. Based upon Defendant’s actual age and evidence presented, the district court
would have had jurisdiction over the juvenile petitions, and the superior court would
have had jurisdiction over the indictment. See N.C. Gen. Stat. § 7B-1604(a) (2013)
(“Any juvenile . . . who commits a criminal offense on or after the juvenile’s sixteenth
birthday is subject to prosecution as an adult.”). Perhaps the district court would
have transferred the three juvenile matters to superior court to be tried with the
fourth offense. See N.C. Gen. Stat. § 7B-2200 (2013) (“[T]he court may . . . transfer
jurisdiction over a juvenile to superior court if the juvenile was 13 years of age or
older at the time the juvenile allegedly committed an offense that would be a felony
if committed by an adult.”) (emphasis added). But none of this happened because of
a mathematical error.
Except for the mistake as to Defendant’s date of birth, Defendant would have
been treated as a juvenile and—unlike an indictment—a juvenile petition for
delinquency must include an allegation of the juvenile’s age:
4
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
The petition shall contain the name, date of birth,
and address of the juvenile and the name and last known
address of the juvenile’s parent, guardian, or custodian.
The petition shall allege the facts that invoke jurisdiction
over the juvenile. The petition shall not contain
information on more than one juvenile.
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.
Sufficient copies of the petition shall be prepared so
that copies will be available for the juvenile, for each
parent if living separate and apart, for the guardian or
custodian if any, for the juvenile court counselor, for the
prosecutor, and for any person determined by the court to
be a necessary party.
N.C. Gen. Stat. § 7B-1802 (2013) (emphasis added).
The requirement that the petition include the juvenile’s date of birth and “facts
that invoke jurisdiction over the juvenile” is the relevant difference here between the
jurisdictional requirements of a juvenile petition and an adult criminal indictment.
See id. It is immediately apparent even in the statute regarding the petition that a
juvenile under the age of 16 is treated differently than an adult or an older juvenile.
For example, copies of the petition must be prepared for “each parent if living
separate and apart, for the guardian or custodian if any, for the juvenile court
counselor, for the prosecutor, and for any person determined by the court to be a
necessary party.” Id. A juvenile is afforded many different protections throughout
5
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
the entire court process.3 Without listing all of these differences, the most salient
here is that the district court has “exclusive, original jurisdiction over any case
involving a juvenile who is alleged to be delinquent” and has the discretion as to
whether to transfer Defendant to superior court to be tried an adult. N.C. Gen. Stat.
§§ 7B-1601(a), -2200 (2013).
N.C. Gen. Stat. § 7B-2203(b) sets out the factors to be considered in a transfer
hearing:
In the transfer hearing, the court shall determine
whether the protection of the public and the needs of the
juvenile will be served by transfer of the case to superior
court and shall consider the following factors:
(1) The age of the juvenile;
(2) The maturity of the juvenile;
(3) The intellectual functioning of the juvenile;
(4) The prior record of the juvenile;
(5) Prior attempts to rehabilitate the juvenile;
(6) Facilities or programs available to the court
prior to the expiration of the court’s jurisdiction
under this Subchapter and the likelihood that the
juvenile would benefit from treatment or
rehabilitative efforts;
(7) Whether the alleged offense was committed in
an aggressive, violent, premeditated, or willful
manner; and
3 See generally N.C. Gen. Stat. ch. 7B, arts. 17 to 27 (2013).
6
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
(8) The seriousness of the offense and whether
the protection of the public requires that the juvenile
be prosecuted as an adult.
N.C. Gen. Stat. § 7B-2203(b) (2013). If the district court decides to transfer the case
to superior court, the resulting “order of transfer shall specify the reasons for
transfer.” Id. § 7B-2203(c) (emphasis added). “The juvenile court must consider eight
enumerated factors pursuant to a transfer hearing and then specify the reasons for
transfer if the case is transferred to superior court.” In re E.S., 191 N.C. App. 568,
572, 663 S.E.2d 475, 478 (citation and brackets omitted), disc. review denied, 362 N.C.
681, 670 S.E.2d 231 (2008).
The transfer decision is in the discretion of the district court and is reviewable,
by either the superior court or any appellate court, only for an abuse of discretion.
See id. at 573, 663 S.E.2d at 478 (“[T]he decision to transfer a juvenile’s case to
superior court lies solely within the sound discretion of the juvenile court judge and
is not subject to review absent a showing of gross abuse of discretion.”) (citation
omitted). Defendant never had the opportunity for a transfer hearing on any of the
charges against him. We know nothing of his maturity, intellectual functioning, and
other factors which the district court would have been required to consider, although
the record surely contains hints that Defendant had significant intellectual and
emotional challenges.
7
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
The assertion of jurisdiction over Defendant as an adult based upon a mistake
as to his age is not a mere technicality; it is a jurisdictional error and irrevocably
changed the course of his prosecution:
The superior court may obtain subject matter jurisdiction
over a juvenile case only if it is transferred from the district
court according to the procedure [that N.C. Gen. Stat. § 7A-
608 (1989), the predecessor of N.C. Gen. Stat. § 7B-2200,]
prescribes. Contrary to the Court of Appeals’ opinion and
the State’s arguments, the superior court cannot obtain
jurisdiction by the mere passage of time nor can the mere
passage of time transform a juvenile offense into an adult
felony. A juvenile offender does not “age out” of district
court jurisdiction and by default become subject to superior
court jurisdiction upon turning eighteen. Because the
district court never actually exercised jurisdiction here,
that court could not and did not properly transfer the case
to the superior court. Therefore, the superior court lacks
subject matter jurisdiction.
This interpretation both conforms to the plain
language of these statutes and accords with legislative
intent. In the Juvenile Code, the General Assembly
enacted procedural protections for juvenile offenders with
the aim that delinquent children might be rehabilitated
and reformed and become useful, law-abiding citizens.
These safeguards evince conceptual distinctions between
the purpose of juvenile proceedings and that of adult
criminal prosecutions. Further, had the legislature
intended that the time of institution of proceedings should
govern jurisdiction, the 1994 amendment lowering the age
at which juveniles may be transferred to superior court for
trial as adults would have been superfluous.
State v. Dellinger, 343 N.C. 93, 96, 468 S.E.2d 218, 220-21 (1996) (citation omitted).
The State argues that even if Defendant was under age 16 during much of the
time alleged in the indictments, he was over 16 during some of the period alleged and
8
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
was 18 by the time he was tried, so at least the fourth offense, which the evidence
places in that time period, was properly in superior court. The majority relies on the
lenity which our case law has afforded the State in allegations of dates in sex offense
cases involving child victims. But neither the State nor the majority can cite to a case
in which the time period alleged in an indictment covers a time during which a
defendant would have been under 16, because there is no such case in North Carolina.
Only one case alludes to this situation, where the defendant argued that the
allegation that the offense occurred “on or about” a time period beginning about a
week after his sixteenth birthday could possibly include events occurring before he
turned sixteen, thus depriving the superior court of jurisdiction. See State v.
Pettigrew, 204 N.C. App. 248, 256-57, 693 S.E.2d 698, 704, appeal dismissed, 364 N.C.
439, 706 S.E.2d 467 (2010). This Court implied that it would be error to include a
time period before a defendant’s sixteenth birthday in the indictment:
Defendant next argues that his convictions must be
vacated because the time period of the offenses alleged in
the superseding indictment encompasses a time prior to
Defendant’s 16th birthday, and thus, the superior court
lacked jurisdiction over this matter. . . .
....
[T]he superseding indictment alleged that Defendant
committed the charged offenses “on or about” 1 February
2001 through 20 November 2001. On 23 January 2001,
Defendant turned 16 years old. Thus, Defendant contends
that the “on or about” language in the superseding
indictment could encompass acts committed before 23
January 2001, when Defendant was 15 years old.
N.C. Gen. Stat. § 15A-924(a)(4) provides that an
9
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
indictment must include “a statement or cross reference in
each count indicating that the offense charged was
committed on, or on or about, a designated date, or during
a designated period of time.” The “on or about” language is
commonly used in indictments, and Defendant
acknowledges that this language is usually sufficient for
purposes of N.C. Gen. Stat. § 15A-924(a)(4).
We are not persuaded by Defendant’s argument. As
we held above, there was substantial evidence that
Defendant committed the charged offenses within the time
frame alleged in the superseding indictment. Defendant
was 16 years old during that entire time frame.
Accordingly, Defendant’s argument is without merit, and
this assignment of error is overruled.
Id. at 256-58, 693 S.E.2d at 704 (emphasis added and brackets omitted). Although
Pettigrew did not address the exact issue presented in this case, since that
indictment’s first alleged date was after the defendant’s sixteenth birthday and “there
was substantial evidence that Defendant committed the charged offenses” after his
sixteenth birthday, I believe Pettigrew is instructive and tends to support the lack of
jurisdiction. See id., 693 S.E.2d at 704.
The majority cites State v. Williams for the proposition that “[t]his Court may
vacate one count of an indictment while upholding the valid remaining counts
contained therein.” See State v. Williams, ___ N.C. App. ___, ___, 774 S.E.2d 880,
886-87 (2015). I agree that this general rule of law is true, but Williams is inapposite
to the jurisdictional question at issue as the defendant there was an adult and there
was no question of potential juvenile court jurisdiction. In Williams, the defendant
was charged with two different crimes in one indictment. Id. at ___, 774 S.E.2d at
10
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
883. This Court held that the first count of the indictment was fatally defective
because it failed to “allege the possession of a substance that falls within Schedule I”
and the State’s amendment to the indictment was an impermissible “substantial
alteration” so that the trial court lacked subject matter jurisdiction over the first
count. Id. at ___, 774 S.E.2d at 885-86. But the remaining count of the indictment
properly described a distinctly different crime, and the defendant’s various challenges
to that conviction were rejected. Id. at ___, 774 S.E.2d at 886-87. Here, the two
indictments each included two counts of the same offense, described in the same way
and occurring in the same time period. On the face of the indictments, there is no
way to distinguish one count from another, and the time period covered by each is the
same.
The State argued before this Court that as long as a defendant is 16 or older
for at least part of the time period alleged in an indictment, the superior court has
jurisdiction over him as an adult. I do not find any law that supports this claim and
believe it is simply incompatible with our entire system of juvenile justice. The law
treats juveniles under age 16 differently for many important reasons and grants the
district court “exclusive, original jurisdiction” over these cases. See N.C. Gen. Stat. §
7B-1601(a). The State’s position would allow the State to charge juveniles as adults,
to arrest them as adults, to imprison them pending trial as adults, and to claim “no
harm, no foul” when the error is pointed out if even just a small bit of the evidence
11
STATE V. COLLINS
STROUD, J., concurring in part and dissenting in part
against the defendant covers a time period after his sixteenth birthday. Even if
Defendant was not prejudiced by being arrested, tried, and convicted as an adult, the
superior court simply did not have jurisdiction over Defendant under the indictments
as written. Cf. Lee v. Gore, 365 N.C. 227, 234, 717 S.E.2d 356, 361 (2011) (“Finally,
to hold otherwise essentially adopts a ‘no harm, no foul’ analysis. Absent prejudice,
so the argument goes, a statutory violation such as we have here may be overlooked.
As we explain above, however, this case involves the [Division of Motor Vehicles’]
authority to act. This is not a case that turns upon prejudice to the petitioner.”).
For the reasons stated above, I believe all of Defendant’s convictions must be
vacated for lack of jurisdiction, so I dissent.
12