Opinion: Daily Journal

Ambiguous criminal code losing proposition for North Carolina taxpayers

The first step to saving money is to stop wasting it. A full-scale recodification of our criminal laws would empower North Carolina to accomplish exactly that.

In December, the N.C. Supreme Court issued its opinion in State v. Rankin, a felony littering case that illustrates how North Carolina’s haphazard collection of criminal laws is a losing proposition for the state’s taxpayers.

In April 2014, Angela Rankin and her boyfriend drove around Greensboro looking for scrap metal. They came upon an oil tank by the road outside a private residence. Believing the tank abandoned, they tried to load it into the back of their truck. But the tank, which still held heating oil, was too heavy. Undeterred, Rankin and her boyfriend dumped the fuel on the ground, loaded the tank in their truck, and drove off. As she later told investigators, she figured the oil would simply “dry up.”

It didn’t dry up. The dumped heating fuel contaminated the soil, ran into the gutter, and polluted the stormwater system. The Department of Health spent more than $10,000 cleaning up the mess. After admitting to dumping the fuel, Rankin was indicted for felony littering on July 21, 2014.

Seen from a prosecutor’s perspective, this would seem to have been an easy case. Rankin admitted to intentionally spilling litter onto property she did not own in violation of General Statute 14-399(a). She had spilled it onto the ground (i.e., not in a “receptacle” as allowed by the statute), and she was not authorized to spill it on that property. And because the litter was hazardous waste as defined by the statute, the resulting offense was a felony. It would seem reasonable that Rankin would accept a plea agreement rather than risk a harsher penalty at trial, right?

Not so. Instead, Rankin and her attorney proceeded to trial in July 2016 — two years later. At trial, Rankin moved to dismiss the case, arguing the state failed to present enough evidence on her state of mind. Under the littering statute, Rankin would be guilty only if she “intentionally or recklessly” spilled the oil on the ground. This element is known as “mens rea,” a Latin phrase meaning “guilty mind.” But Rankin admitted to knowing the tank contained oil. And she admitted to intentionally spilling it. She was certainly guilty of simple littering. So on what mens rea element did the state fail to provide evidence?

Most likely, Rankin’s theory was that the state failed to prove that she knew she was spilling hazardous waste — the element that made her actions a felony. The littering statute does not say what state of mind satisfies this particular element. Subsection 14-399(e) simply reads, “Any person . . . who discards litter that is a hazardous waste as defined [by statute] is guilty of a Class I felony.” Rankin probably hoped the court would interpret the statute to require some level of mens rea on this element that the state could not prove: e.g., that Rankin’s purpose was to spill hazardous waste, or that she knew the waste was hazardous. But the court declined to do so. It overruled Rankin’s objection, and the jury found her guilty of felony littering.

Rankin appealed her conviction to the N.C. Court of Appeals. Rather than raise the mens rea issue on appeal, Rankin swapped horses and challenged the sufficiency of her indictment. The court agreed and voted 2-1 to vacate Rankin’s conviction. In December 2018, the state Supreme Court voted 5-2 to affirm the Court of Appeals. Four and a half years, tens of thousands of dollars, and countless hours of labor from investigators, attorneys, judges, and support staff failed to end in a conviction in a routine case that should have been resolved pre-trial. And the legal question that kicked off this entire saga — whether the hazardous waste element requires a culpable frame of mind — remains unanswered.

So, what does Rankin’s prosecution have to do with recodification of the criminal code? In short, a clearer criminal code would result in fewer trials like hers.

Jury trials are expensive and burdensome, and the outcomes are generally uncertain. Each litigant faces substantial pressure to settle the case long before the trial begins. As a result, the cases that most often go to trial are the close cases in which a key fact or legal question remains unresolved.

What made Angela Rankin’s case close enough to merit a trial? An ambiguous statute. The littering statute failed to define a mens rea for the hazardous waste element. Must a defendant know that the litter is hazardous waste? Is it enough that a defendant is reckless about whether the litter is hazardous waste? Should a defendant be held strictly liable if the litter is hazardous waste, regardless of whether she knew? The statute does not make this clear. Nor is there a catch-all mens rea provision in the criminal code that instructs the court to “read in” a level of culpability where none is defined. The resulting ambiguity created a close case that should not have been close at all.

This issue is not confined to the littering statute — ambiguity is one of many systemic issues plaguing North Carolina’s criminal code. Recodification is the solution. Careful, considered revisions to the code would limit the ambiguity in criminal statutes. A well-defined, self-contained code would limit the amount of taxpayer money burnt on avoidable trials.

Mike Schietzelt is a criminal justice fellow at the John Locke Foundation.