State v. Lancaster

IN THE SUPREME COURT OF NORTH CAROLINA

No. 240A22

Filed 15 December 2023

STATE OF NORTH CAROLINA

v.

DARREN O’BRIEN LANCASTER

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 284 N.C. App. 465 (2022), finding no error in part and vacating

in part judgments entered on 14 September 2020 by Judge Joshua W. Willey Jr. in

Superior Court, Craven County, and remanding the case for resentencing. Heard in

the Supreme Court on 21 September 2023.

Joshua H. Stein, Attorney General, by Zachary K. Dunn, Assistant Attorney

General, for the State-appellant.

Craig M. Cooley for defendant-appellee.

BERGER, Justice.

Upon conducting an Anders review, the Court of Appeals determined that the

indictment charging defendant with going armed to the terror of the public was

deficient. According to the Court of Appeals, the State’s failure to allege in the

indictment that the crime occurred on a public highway deprived the trial court of

jurisdiction. We reverse.

I. Factual and Procedural Background

On 30 September 2019, officers with the Havelock Police Department

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responded to a call of an individual “waving a gun and firing rounds off kind of

aimlessly in the parking lot” of an apartment complex located behind a local high

school. The officers soon received another call that the same individual was at a

separate nearby location “with a firearm and was yelling at a female.” Upon their

arrival at the second location, the officers located and detained defendant. The

officers discovered a Hi-Point 9mm handgun in a nearby vehicle, and the vehicle’s

owner testified at trial that the gun belonged to defendant.

Defendant was indicted for multiple offenses, including two counts of going

armed to the terror of the public. As is relevant to our consideration, the indictments

alleged that he “unlawfully, willfully and feloniously did go armed to the terror of the

public by causing a disturbance and waving a firearm around in the parking lot[s]” of

the two locations.

Defendant’s matter came on for trial on 14 September 2020, and after

defendant waived his right to a jury trial, he was found guilty of possession of a

firearm by a felon, injury to personal property, resisting a public officer, and one count

of going armed to the terror of the public. The charges were consolidated and the

trial court sentenced defendant to a minimum of fifteen months and a maximum of

twenty-seven months in prison. Defendant appealed.1

1 The Court of Appeals noted that it was “not apparent from the record that

[d]efendant properly noticed his appeal,” but that court nevertheless issued a writ of

certiorari to remedy any jurisdictional question. State v. Lancaster, 284 N.C. App. 465, 466

n.1 (2022). Although the State has not argued that the Court of Appeals abused its discretion

in issuing this writ, “a writ of certiorari ‘is not intended as a substitute for a notice of appeal.’ ”

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At the Court of Appeals, defendant’s counsel was unable to identify any errors

in defendant’s trial and instead submitted an Anders brief requesting that the Court

of Appeals examine the record for any meritorious issues. See Anders v. California,

386 U.S. 738 (1967). The Court of Appeals examined the record and identified what

it contended was a meritorious issue related to the validity of the indictment charging

defendant with going armed to the terror of the public.2 Relying on its previous

decision in State v. Staten, 32 N.C. App. 495 (1977), the Court of Appeals’ majority

concluded that the indictment was fatally defective and failed to confer jurisdiction

upon the trial court because it “failed to allege” an essential element of the common

law crime of going armed to the terror of the public, specifically, “that [d]efendant

committed his act on a ‘public highway.’ ” State v. Lancaster, 284 N.C. App. 465, 466

(2022). Accordingly, the Court of Appeals vacated the judgment convicting defendant

of going armed to the terror of the public and remanded the matter for resentencing.

Id.

In a separate opinion, Judge Griffin agreed the panel was bound by the Court

of Appeals’ previous decision in Staten but reasoned that the indictment’s allegation

Cryan v. Nat’l Council of YMCAs, 384 N.C. 569, 573 (2023) (quoting State v. Ricks, 378 N.C.

737, 741 (2021)). This is so because “[i]f courts issued writs of certiorari solely on the showing

of some error below, it would ‘render meaningless the rules governing the time and manner

of noticing appeals.’ ” Id. (quoting Ricks, 378 N.C. at 741).

2 It appears that neither defendant nor the State was given an opportunity to brief

the issue identified by the Court of Appeals following its Anders review. Even where the

argument and reasoning of the Court of Appeals may be sound, the better practice is to order

supplemental briefing on the issue so identified. Such action permits full vetting of the issue

and avoids potential prejudice to either party on appeal.

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“that the act was committed in the parking lot of an apartment complex” was

sufficient. Id. at 471–72 (Griffin, J., concurring in part and dissenting in part).

Accordingly, he concluded there was no error in the trial court’s judgments. Id.

II. Analysis

The State appealed based upon the dissent, arguing that the indictment was

sufficient because the common law crime of going armed to the terror of the public

does not contain an element that the conduct occur about a public highway, and that

even if such element exists, an apartment parking lot is connected to and therefore

“about” a public highway. Defendant argues that the indictment was fatally defective

because it failed to allege that (1) defendant’s actions occurred about a public

highway, (2) defendant armed himself with an unusual and dangerous weapon, and

(3) defendant acted with the purpose of terrorizing the people. We must, therefore,

determine whether the indictment is fatally defective in light of our precedent that

“[q]uashing of indictments and warrants is not favored.” State v. Abernathy, 265 N.C.

724, 726 (1965).

“The sufficiency of an indictment is a question of law reviewed de novo.” State

v. White, 372 N.C. 248, 250 (2019).

“Except in misdemeanor cases initiated in the District Court Division, no

person shall be put to answer any criminal charge but by indictment, presentment,

or impeachment.” N.C. Const. art. I, § 22. An “indictment is a written accusation by

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a grand jury, filed with a superior court, charging a person with the commission of

one or more criminal offenses.” N.C.G.S. § 15A-641(a) (2021).

“An indictment need not conform to any technical rules of pleading but instead

must satisfy both statutory strictures and the constitutional purposes which

indictments are designed to satisfy, i.e., notice sufficient to prepare a defense and to

protect against double jeopardy.” In re J.U., 384 N.C. 618, 623 (2023) (cleaned up)

(quoting State v. Oldroyd, 380 N.C. 613, 617 (2022)); see also State v. Sturdivant, 304

N.C. 293, 311 (1981) (stating that an indictment’s “purposes are 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”).

Although earlier common law principles certainly conveyed that defective

indictments implicated jurisdictional concerns, the General Assembly’s adoption of

the Criminal Procedure Act represented a sharp departure from the demands of

technical pleading. See Oldroyd, 380 N.C. at 619 (“[T]he Criminal Procedure Act of

1975 . . . statutorily modernize[d] the requirements of a valid indictment.”); see also

United States v. Cotton, 535 U.S. 625, 630 (2002) (overruling the common law

principle that a defective indictment deprives a court of jurisdiction and noting that

the common law’s “elastic concept of jurisdiction is not what the term ‘jurisdiction’

means today, i.e., ‘the courts’ statutory or constitutional power to adjudicate the

case’ ” (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998))).

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Since adoption of the Act, “[t]his Court has been consistent in retreating from

the highly technical, archaic common law pleading requirements which promoted

form over substance.” In re J.U., 384 N.C. at 622. “Instead, contemporary criminal

pleading requirements have been designed to remove from our law unnecessary

technicalities which tend to obstruct justice.” Id. at 623 (cleaned up) (quoting State

v. Williams, 368 N.C. 620, 623 (2016)). After all, “it would not favor justice to allow

[a] defendant to escape merited punishment upon a minor matter of form.”

Sturdivant, 304 N.C. at 311.

Thus, indictments and other criminal pleadings are

sufficient in form for all intents and purposes if [they]

express the charge against the defendant in a plain,

intelligible, and explicit manner; and the same shall not be

quashed, nor the judgment thereon stayed, by reason of

any informality of refinement, if in the bill of proceeding,

sufficient matter appears to enable the court to proceed to

judgment.

N.C.G.S. § 15-153 (2021). Indictments simply must contain, as is relevant here, “[a]

plain and concise factual statement in each count which, without allegations of an

evidentiary nature, asserts facts supporting every element of a criminal offense and

the defendant’s commission thereof with sufficient precision clearly to apprise the

defendant or defendants of the conduct which is the subject of the accusation.”

N.C.G.S. § 15A-924(a)(5) (2021).

As for the indictment at issue here, defendant first contends that the crime of

going armed to the terror of the public includes an element that the criminal conduct

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occur on a public highway, and that the State’s failure to allege this element deprived

the trial court of jurisdiction. We disagree.

The General Assembly has provided that:

All such parts of the common law as were heretofore

in force and use within this State, or so much of the

common law as is not destructive of, or repugnant to, or

inconsistent with, the freedom and independence of this

State and the form of government therein established, and

which has not been otherwise provided for in whole or in

part, not abrogated, repealed, or become obsolete, are

hereby declared to be in full force within this State.

N.C.G.S. § 4-1 (2021). In other words, “the common law [which] has not been

abrogated or repealed by statute or become obsolete is in full force and effect in this

state.” State v. Vance, 328 N.C. 613, 617 (1991). “The ‘common law’ referred to in

N.C.G.S. § 4-1 is the common law of England as of the date of the signing of the

Declaration of Independence.” Id. (citing State v. Buckom, 328 N.C. 313 (1991); Hall

v. Post, 323 N.C. 259 (1988); Steelman v. City of New Bern, 279 N.C. 589 (1971)).

To determine whether the indictment in this case adequately charged

defendant with going armed to the terror of the public, we must first identify the

elements of the crime. Unlike crimes codified in our criminal statutes—the elements

of which may be readily ascertained by a reading of the statutory text—the elements

of common law crimes must be discerned through a reading of English common law

and our precedent interpreting such. See id.

This Court’s review of the common law crime of going armed to the terror of

the public began nearly two centuries ago in State v. Huntly, 25 N.C. (3 Ired.) 418

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(1843) (per curiam).3 In Huntly, the defendant was charged with the offense of “riding

or going about armed with unusual and dangerous weapons, to the terror of the

people.” Id. at 420. The defendant argued that because this crime was created by

the statute of Northampton, a 1328 English statute, and because English statutes

were no longer in effect in North Carolina, the allegations in his indictment—

including riding on a public highway with said weapons to the terror of the people—

constituted no crime at all. Id.

The statute of Northampton relied on by the defendant provided in relevant

part that:

[N]o man great nor small, of what condition soever he be,

except the King’s servants in his presence, and his

ministers in executing the King’s precepts, or of their office,

and such as be in their company assisting them, . . . [shall]

with force and arms, . . . go nor ride armed by night nor by

day, in fairs, markets, nor in the presence of the justices or

other ministers, nor in no part elsewhere, upon pain to

forfeit their armour to the King, and their bodies to prison

at the King’s pleasure.

Statute of Northampton, 2 Edw. 3, ch. 3 (1328).

In rejecting the defendant’s argument that this statute abrogated the common

law crime of going armed to the terror of the public, this Court relied on Sir John

Knight’s Case, a 1686 English case in which the Chief Justice “declared . . . that the

statute of Northampton was made in affirmance of the common law.” Huntly, 25 N.C.

3 Citations and quotations to State v. Huntly herein reference the original James

Iredell Reports, Volume III, published in 1843.

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(3 Ired.) at 421; see also Sir John Knight’s Case, 87 Eng. Rep. 75 (K.B. 1686). This

Court thus determined that the statute of Northampton “did not create this offence,

but provided only special penalties and modes of proceeding for its more effectual

suppression.” Huntly, 25 N.C. (3 Ired.) at 420. In so reasoning, this Court consulted

Blackstone’s Commentaries on the Laws of England:

Blackstone states that “the offence of riding or going armed

with dangerous or unusual weapons, is a crime against the

public peace, by terrifying the good people of the land; and

is particularly prohibited by the statute of Northampton,

upon pain of forfeiture of the arms, and imprisonment

during the King’s pleasure.”

Id. at 420–21 (citation omitted) (quoting 4 William Blackstone, Commentaries *149).

Having thus determined that this English common law crime remained in force

despite the statute of Northampton, this Court then considered the argument that

the crime diminished citizens’ right to carry firearms, and it concluded with a succinct

description of the crime itself:

But although a gun is an “unusual weapon,” it is to be

remembered that the carrying of a gun per se constitutes

no offence. For any lawful purpose—either of business or

amusement—the citizen is at perfect liberty to carry his

gun. It is the wicked purpose—and the mischievous

result—which essentially constitute the crime. He shall not

carry about this or any other weapon of death to terrify and

alarm, and in such manner as naturally will terrify and

alarm, a peaceful people.

Id. at 422–23 (second emphasis added).

Over one hundred years after Huntly, this Court again addressed the crime of

going armed to the terror of the public in State v. Dawson, 272 N.C. 535 (1968). In

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Dawson, four codefendants were charged with crimes stemming from their alleged

conduct of firing gunshots into various homes, breaking and entering into homes, and

defacing a home by painting “KKK” onto said property. Id. at 538–40. Among other

offenses, the appealing defendant was charged with and convicted of “the common-

law misdemeanor known as going armed with unusual and dangerous weapons to the

terror of the people.” Id. at 541.

In finding no error in the trial court’s denial of defendant’s motion to quash the

indictment charging this crime, this Court recognized that Huntly “is still the law of

North Carolina[,]” id. at 544, and stated that:

The indictment . . . , although not as detailed and

specific as the charge in State v. Huntley [sic], . . . is

nevertheless sufficient. It charges all the essential

elements of the crime, that is, that defendant (1) armed

himself with unusual and dangerous weapons, to wit,

pistols and rifles (2) for the unlawful purpose of terrorizing

the people of Alamance County, and, (3) thus armed, he

went about the public highways of the county (4) in a

manner to cause terror to the people. While it would have

been proper (as in Huntley [sic], supra) to enumerate acts

or threats of violence committed by defendant while thus

going armed, such specific averments are not required.

Evidence of such acts, of course, was admissible as tending

to prove the commission of the offense charged.

Id. at 549 (citations omitted).

Defendant contends that this language sets forth the elements of going armed

to the terror of the public. However, the Court in Dawson was describing the specific

evidentiary allegations contained in the defendant’s indictment, not the general

elements of the offense. The Court clearly stated earlier in the opinion that an

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individual is not allowed “to arm himself in order to prowl the highways or other

public places to the terror of the people.” Id. (emphasis added). As the Court noted

without limiting the offense to public highways, the crime of going armed to the terror

of the public has broad application:

In this day of social upheaval one can perceive only dimly

the tragic consequences to the people if either night riders

or daytime demonstrators, fanatically convinced of the

righteousness of their cause, could legally arm themselves,

mass, go abroad, and display their weapons for the purpose

of imposing their will upon the people by terror. Such

weapons⎯unconcealed and “ready to be used on every

outbreak of ungovernable passion”⎯would endanger the

whole community.

Id.

Defendant’s reading of Dawson would not only require that the crime occur

about a public highway, but also that the only weapons which would qualify to

establish the crime are “pistols and rifles.” Revolvers, shotguns, crossbows,

flamethrowers, grenades, and other weapons would not qualify. In addition, such a

reading would lead to an even more absurd result, that the crime could only occur in

Alamance County. Just as one can commit the crime of going armed to the terror of

the public while armed with unusual and dangerous weapons other than pistols and

rifles, or in counties other than Alamance County, one can commit the crime in public

locations other than highways. See Dawson, 272 N.C. at 549; see also State v.

Rambert, 341 N.C. 173 (1995) (upholding conviction for going armed to the terror of

the public and remanding for resentencing where crime occurred in a Piggly Wiggly

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parking lot).

The evidentiary allegations in the Dawson indictment led the Court of Appeals

in another case to incorrectly state that Dawson had

Enumerated the four essential elements to charge the

common law offense of intentionally going about armed

with an unusual and dangerous weapon to the terror of the

people, namely: (1) armed with unusual and dangerous

weapons, (2) for the unlawful purpose of terrorizing the

people of the named county, (3) by going about the public

highways of the county, (4) in a manner to cause terror to

the people.

State v. Staten, 32 N.C. App. 495, 496–97 (1977).

The Court of Appeals’ majority below recognized that this Court in Huntly

described the crime “without any reference that the defendant must have acted while

on a ‘public highway’ to be subject to criminal liability.” Lancaster, 284 N.C. App. at

468 (quoting Huntly, 25 N.C. (3 Ired.) at 421–22). In fact, the majority expressly

recognized that “it has long been understood that” the crime of going armed to the

terror of the public, like the similar common law crime of affray, “can occur in

locations other than along a public highway.” Id. at 469. Despite this, the majority

understood that because this Court has never addressed the Court of Appeals’

decision in Staten, the panel was bound to follow that decision. Id. at 470; see also In

re Civ. Penalty, 324 N.C. 373, 384 (1989) (“Where a panel of the Court of Appeals has

decided the same issue, albeit in a different case, a subsequent panel of the same

court is bound by that precedent, unless it has been overturned by a higher court.”).

We now take this opportunity to overrule Staten and clarify the elements of

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the common law crime of going armed to the terror of the public. Although the Court

of Appeals interpreted our decision in Dawson as imposing an “about a public

highway” element, see Staten, 32 N.C. App. at 496–97, this interpretation conflates

this Court’s recitation of the particular evidentiary facts set forth in the Dawson

indictment with a recitation of the elements of the crime in general.

The Court of Appeals’ erroneous statement in Staten, and defendant’s

argument in reliance thereof, is not just a misreading of Dawson—it is contrary to

both the English history of this common law crime and our decision in Huntly

interpreting such. The statute of Northampton did not restrict punishment for the

offense of going armed to the terror of the public to only those offenses committed

“about a public highway.” To the contrary, the statute specifically provided that

punishment was applicable to those who were armed “in fairs, markets,” and any

other public location. Statute of Northampton, 2 Edw. 3, ch. 3.

It is therefore no surprise that Blackstone’s Commentaries on the Laws of

England also fails to mention any requirement that this crime be committed “about

a public highway.” See 4 William Blackstone, Commentaries *149–50 (“The offence

of riding or going armed with dangerous or unusual weapons is a crime against the

public peace, by terrifying the good people of the land . . . .” (emphasis omitted)).4 As

4 The fourth volume of Blackstone’s Commentaries was published in 1769. See Wilfrid

Prest, William Blackstone: Law and Letters in the Eighteenth Century 246 (2008). As there

is no indication that the common law altered this crime between 1769 and 1776, Blackstone’s

description of the crime reflects “the common law of England as of the date of the signing of

the Declaration of Independence.” Vance, 328 N.C. at 617.

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we stated in Huntly, “[i]t is the wicked purpose—and the mischievous result—which

essentially constitute the crime.” Huntly, 25 N.C. (3 Ired.) at 422−23.

Both the contemporary English history and our decision in Huntly confirm that

the crime of going armed to the terror of the public does not require that the offensive

conduct occur about a public highway. See id. at 423 (“[Defendant] shall not carry

about this [gun] or any other weapon of death to terrify and alarm, and in such

manner as naturally will terrify and alarm, a peaceful people.”). Thus, the elements

of the common law crime of going armed to the terror of the public are that the

accused (1) went about armed with an unusual and dangerous weapon, (2) in a public

place, (3) for the purpose of terrifying and alarming the peaceful people, and (4) in a

manner which would naturally terrify and alarm the peaceful people.

With a proper understanding of the elements, we turn to defendant’s

arguments that the indictment charging him with going armed to the terror of the

public was fatally deficient because it failed to allege the “unusual weapon” and

“purpose” elements. Here, the indictment charged that on 30 September 2019,

defendant “unlawfully, willfully and feloniously did go armed to the terror of the

public by causing a disturbance and waving a firearm around in the parking lot of

326 McCotter Blvd Apartments, Havelock, North Carolina.”

First, defendant contends that although “a firearm is a dangerous weapon, . . .

there’s nothing ‘unusual’ about a run-of-the-mill firearm.” This argument is

foreclosed by our precedent.

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It has been remarked, that a double-barrelled gun,

or any other gun, cannot in this country come under the

description of “unusual weapons,” for there is scarcely a

man in the community who does not own and occasionally

use a gun of some sort. But we do not feel the force of this

criticism. A gun is an “unusual weapon,” wherewith to be

armed and clad. . . . But although a gun is an “unusual

weapon,” it is to be remembered that the carrying of a gun

per se constitutes no offence.

Huntly, 25 N.C. (3 Ired.) at 422–23. Thus, defendant’s argument that a firearm does

not constitute an unusual weapon is without merit.

Defendant next contends that the indictment was insufficient because it failed

to allege that he “possessed the firearm for the ‘purpose of terrorizing’ the people of

the named county.” According to defendant, “simply possessing or waving a firearm

doesn’t automatically mean the specific ‘purpose’ of said possession or waving is to

‘terrorize’ the people of the named county.”

However, “all that is required” for a sufficient indictment are “factual

allegations supporting the elements of the crime charged,” not “magic words” or a rote

recitation of elements. In re J.U., 384 N.C. at 624 (emphasis added). Here, both the

element that defendant’s conduct was done with the purpose of terrifying and

alarming people, and the element that such conduct was done in a manner which

would naturally terrify and alarm people, are “clearly inferable” from the allegations

in the indictment that defendant caused a disturbance and waved a firearm around

in the parking lot of an apartment complex. See id.

Defendant’s attempt to compare these circumstances to a situation in which

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an individual lawfully exercises their constitutional right by “simply possessing” a

firearm is inapposite. See Huntly, 25 N.C. (3 Ired.) at 422–23. Defendant’s argument

on this point goes to proof at trial. Further, although one may be able to imagine

circumstances under which “simply” waving a firearm is done without the purpose of

terrorizing people, an indictment need only contain factual allegations which support

the elements of the charged crime, not evidentiary allegations which conclusively

establish the elements regarding an accused’s mental state. See N.C.G.S. § 15A-

924(a)(5) (“[Indictments must contain a] plain and concise factual statement in each

count which, without allegations of an evidentiary nature, asserts facts supporting

every element . . . .”). Defendant’s argument that the indictment was fatally deficient

due to an omission of the “purpose” element is therefore without merit.

The indictment here adequately alleged facts supporting each element of the

crime of going armed to the terror of the public. The indictment clearly appraised

defendant of the conduct which was the subject of the accusation, see N.C.G.S. § 15A-

924(a)(5), and provided “notice sufficient to prepare a defense and to protect against

double jeopardy.” In re J.U., 384 N.C. at 623. Accordingly, there is no error in the

indictment charging defendant with going armed to the terror of the public, and the

decision of the Court of Appeals is reversed.

REVERSED.

Justice DIETZ did not participate in the consideration or decision of this case.

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