North Carolina Lawyers Weekly
State v. Rankin (Lawyers Weekly No. 011-008-18, 23 pp.) (Mark Davis, J.) (Philip Berger Jr., J., dissenting) Appealed from Guilford County Superior Court (Michael Duncan, J.) N.C. App.
Holding: Although an indictment is not required to reference exceptions to the offense, and although G.S. § 14-399(a)(1) and (2) are prefaced by the word “except,” those subsections set out elements of the offense rather than defenses to it. Therefore, the indictment against defendant should have alleged, but did not allege, that defendant’s littering did not occur on property designated for the disposal of garbage.
We vacate defendant’s conviction for felony littering.
State v. Hinkle, 189 N.C. App. 762, 659 S.E.2d 34 (2008), stands for the proposition that subsection (a)(2) is an essential element of § 14-399(a). In fact, the indictment in this case alleged that defendant did not place her refuse into a trash receptacle, the element set out in subsection (a)(1). Because subsections (a)(1) and (a)(2) serve identical purposes in this statute, it would be illogical to suggest that one is an essential element but the other is not.
Contrary to the dissent’s contention, this court’s determination in Hinkle that subsection (a)(2) constitutes an essential element of this offense is clearly not dicta. To the contrary, it forms the holding of the case, and we are therefore bound by it.
By enacting § 14-399(a), the General Assembly sought to make trash disposal illegal only in places other than (1) a waste receptacle or (2) a city or county dump. The crime of littering does not occur until litter is placed where it ought not be.
Any characterization of the text of § 14-399(a) prior to the word “except” as stating a “complete and definite” crime would lead to absurd results. Under such an interpretation of the statute, a trash collector disposing of waste in a city dump could be charged with littering and then have the burden of showing that his actions fell within an “exception” to the littering statute. It strains credulity to suggest that such outcomes were intended by the General Assembly in enacting § 14-399(a).
Defendant’s indictment was defective due to its failure to contain an essential element of the offense of littering.
Vacated.
Dissent
(Berger Jr., J.) Hinkle turned on whether a private dumpster was a litter receptacle, and this court held that it was. The general expressions that followed were where the Hinkle court considered whether subsection (a)(2) was an essential element, and which party should bear the burden of proof, but neither of these considerations was necessary to the decision of the question involved.
The state was not required to allege whether the property on which defendant disposed of the oil was designated for such disposal or whether defendant was authorized. The indictment clearly identified the offense charged, protected defendant from double jeopardy, enabled defendant to prepare for trial, and enabled the court to pronounce sentence. Therefore, the indictment charging defendant with littering of hazardous waste was sufficient to give the trial court jurisdiction over her case, and I would find no error.
