On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 809 S.E.2d 358 (2018), the court affirmed holding that a littering indictment was fatally defective. In so ruling the court held that subsection G.S. 14-399(a)(1) of the littering statute sets out an element of the offense, not an affirmative defense. It stated: “We conclude that subdivision (a)(1), which requires that the accused be an unauthorized person depositing refuse on land not designated by the State for such use, is an essential element of the crime of felony littering[.]”