State v. Billinger (Lawyers Weekly No. 11-07-0678, 16 pp.) (Robert C. Hunter, J.) Appealed from Hoke County Superior Court. (William R. Pittman, J.) N.C. App. Click here for the full-text opinion.
Holding: Although we have found no N.C. appellate decision directly on point, in accord with other jurisdictions, we find that evidence of defendant’s ownership of a sawed-off shotgun is sufficient to show his constructive possession of the weapon.
We find no error in defendant’s conviction of possession of a weapon of mass death and destruction. We vacate both defendant’s conviction of conspiracy to commit robbery with a dangerous weapon and the trial court’s order of restitution.
Although defendant was not at the scene when law enforcement officers found the sawed-off shotgun in question, three witnesses testified that defendant owned the shotgun. This evidence was sufficient to support a reasonable inference that defendant owned and, accordingly, constructively possessed the sawed-off shotgun.
The indictment charging defendant with conspiracy to commit armed robbery reads in pertinent part, “THE JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 26th day of June, 2008, in the county named above the defendant named above unlawfully, willfully and feloniously did with Jevaris Charan McArn, Kerry Kurtis Braithwaite, and Jonathan Wilson Jackson to commit the felony of Robbery With a Dangerous Weapon, in violation of North Carolina General Statutes Section 14-87, against Luis Alberto Reyes-Perez. This act was in violation of North Carolina Common Law and North Carolina General Statutes 14-2.4.”
The state failed to include any “operative language” between the words “did” and “with” denoting a conspiracy or agreement. Thus, the indictment fails to allege an essential element of the crime of conspiracy: the agreement to commit an unlawful act.
Even though the indictment’s caption identifies the charge as “Conspiracy to Commit Robbery with a Dangerous Weapon,” the caption of an indictment is not a part of it, and the designation therein of the offense sought to be charged can neither enlarge nor diminish the offense charged in the body of the instrument. State v. Bennett, 271 N.C. 423, 156 S.E.2d 725 (1967).
Although the indictment refers to G.S. § 14-2.4, merely charging in general terms a breach of a statute and referring to it in the indictment is not sufficient to cure a failure to charge the essentials of the offense in a plain, intelligible and explicit manner. State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638 (1963).
The state’s failure to allege an essential element of the crime of conspiracy renders the indictment facially defective and deprived the trial court of jurisdiction to adjudicate the charge.
The trial court ordered defendant to pay restitution in connection with his conviction for possessing a weapon of mass death and destruction. The state concedes that the restitution ordered by the trial court had no factual connection with defendant’s conviction for possession of a weapon of mass destruction (defendant injured the victim with a different weapon). As we have vacated defendant’s conspiracy conviction, the restitution order may not be attached to it. Consequently, we must also vacate the restitution order.
No error in part, vacated in part.