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Criminal Practice – Indictment – Insufficient Allegations – Gun Possession – Public Area

An element of a violation of G.S. § 14-277.2(a) is that the possession of a weapon occur on public or health care facility property. The indictment’s allegation of the address of the property was insufficient to inform defendant of the public or health-care-facility nature of the property. Consequently, the indictment was defective because it lacked an essential element.

We vacate defendant’s conviction for violating § 14-277.2(a).

The statute says, “It shall be unlawful for any person participating in, affiliated with, or present as a spectator at any parade, funeral procession, picket line, or demonstration upon any private health care facility or upon any public place owned or under the control of the State or any of its political subdivisions to willfully or intentionally possess or have immediate access to any dangerous weapon.”

Even considering accompanying documents, a misdemeanor statement of charges (and, later, an indictment) alleged that defendant had possessed a firearm at a protest at “40 East St, Pittsboro, NC 27312” and that the type of location was a “[h]ighway/[r]oad/[a]lley/[s]treet/[s]idewalk.”

While our existing caselaw does not address the essential elements of § 14-277.2(a), we have held with respect to analogous statutes that the location of a defendant’s conduct is essential to the offense.

We do not find that the statement of charges, even together with the police report, contained sufficient information to indicate that defendant’s conduct took place in the statutorily specified location—that is, “upon any private health care facility or upon any public place owned or under the control of the State or any of its political subdivisions . . . .”

The precise address of a defendant’s conduct, while advisable to include, primarily operates to apprise the defendant of the conduct of which she is accused. On the other hand, indicating the type of location involved—a dwelling house in first- and second-degree burglary; educational property in State v. Huckelba, 240 N.C. App. 544, rev’d on other grounds, 368 N.C. 569, 780 S.E.2d 750 (2015); and public land here—operates to supply an essential element of the offense. Both adequate notice to a defendant and a description of the essential elements of an offense are necessary for an indictment to be valid. And, while the same language can often accomplish both purposes, the presence of one does not always guarantee the presence of the other.

Here, if the address belonged to a public place, it would only be discovered through reference to an external database rather than through reference to the documents actually provided to defendant. Similarly, nothing in the disjunctive use of “[h]ighway/[r]oad/[a]lley/[s]treet/[s]idewalk” indicates any more than the statement of charges itself that the events described occurred at a public place.

Without any allegations in the charging document supporting an essential element of the offense—that defendant’s conduct took place “upon any private health care facility or upon any public place owned or under the control of the State or any of its political subdivisions”—the misdemeanor statement of charges lacked an essential element of § 14-277.2(a). As the missing element was essential, the trial court also erred in allowing the state to amend the charging document at trial, which changed the nature of the offense.

Vacated.

State v. Reavis (Lawyers Weekly No. 011-245-22, 18 pp.) (Hunter Murphy, J.) (Lucy Inman, J., concurring in the result only without separate opinion) Appealed from Chatham County Superior Court (Allen Baddour, J.) Ryan Park and Zachary Ezor for the state; Jeffrey Dobson and John Moss for defendant. 2022-NCCOA-909


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