State v. Nickens, ___ N.C. App. ___, 821 S.E.2d 864 (Nov. 6, 2018)

The indictment properly charged resisting a public officer. On appeal the defendant argued that the indictment was invalid because it failed to sufficiently allege the officer’s public office. The indictment alleged that the defendant “did resist, delay and obstruct Agent B.L. Wall, a public officer holding the office of North Carolina State Law Enforcement Agent, by refusing commands to leave the premises, assaulting the officer, refusing verbal commands during the course of arrest for trespassing and assault, and continuing to resist arrest.” Count I of the indictment which charged the separate offense of assault on a government officer, identified the officer as “Agent B.L. Wall, a state law enforcement officer employed by the North Carolina Division of Motor Vehicles.” Both counts, taken together, provided the defendant sufficient information to identify the office in question.

     The court also rejected the defendant’s argument that the indictment was defective because it failed to fully and clearly articulate a duty that the officer was discharging. After noting the language in Count II, the court noted that Count III, alleging trespass, asserted that the defendant remained on the premises of the specified DMV office “after having been notified not to remain there by a person in charge of the premises.” The court held that “the charges” specifically state the duties the officer was attempting to discharge, namely: commanding the defendant to leave the premises and arresting or attempting to rest her when she failed to comply.

     The court went on to hold that the officer was acting within the scope of his duties at the time. It noted that G.S. 20-49.1(a) “contains an expansive grant of power,” vesting DMV inspectors with the same powers vested in law enforcement officers by statute or common law. Thus, the officer was acting under the authority given to him under the statute at the time and was acting within the scope of his duties. The court concluded: “Even though the indictment could have been be more specific, we decline to require that it be hyper-technical.”