IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-344
Filed 5 August 2026
Macon County, No. 23CR000360-550
STATE OF NORTH CAROLINA
v.
RONALD SCOTT LINDSAY
Appeal by Defendant from Judgment entered 13 May 2024 by Judge Steve R.
Warren in Macon County Superior Court. Heard in the Court of Appeals 28 January
2026.
Attorney General Jeff Jackson, by Special Deputy Attorney General Heidi M.
Williams and Special Deputy Attorney General Benjamin O. Zellinger, for the
State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.
Zimmer, for Defendant-Appellant.
HAMPSON, Judge.
Factual and Procedural Background
Ronald Scott Lindsay (Defendant) appeals from a consolidated Judgment
entered pursuant to jury verdicts finding him guilty of twelve counts of Felony
Obstruction of Justice and two counts of Misdemeanor Obstruction of Justice. The
Record before us, including evidence presented at trial, tends to reflect the following:
On 31 May 2022, Defendant was indicted by a Cherokee County grand jury on
STATE V. LINDSAY
Opinion of the Court
twenty counts of Felony Obstruction of Justice.1 The indictments arose from alleged
conduct by Defendant during his employment as the Attorney for the Cherokee
County Department of Social Services (Cherokee DSS).
The Indictments2 stated:
THE JURORS FOR THE STATE, UPON THEIR OATH, present
that on or about [Date], in Cherokee County, the defendant
named above unlawfully, willfully and feloniously did obstruct
justice. The defendant, as the attorney for the Cherokee County
Department of Social Services, created, improperly prepared,
approved, made a custom practice, and used a “Custody and
Visitation Agreement” (CVA) in the matter of [Minor Child],
which was an agreement that allowed the removal of minor
children from their parent(s) without court involvement, in
violation of North Carolina law. The use of this agreement
effectively avoided judicial oversight into the activities of
Cherokee County DSS, and subverted the statutory process for
determining abuse and neglect of children, and determining
custody and parental rights. The practice of using a CVA in this
matter interfered with the parental relationship between a
parent and child, violating the constitutional and statutory rights
of parents and minor children. This offense was done in secrecy
and with malice; with deceit and intent to defraud; was infamous;
and was done in violation of the common law, and against the
peace and dignity of the State.
Before trial, Defendant moved to dismiss the Indictments for failing to state a crime.
The trial court denied the Motion.
A jury trial began on 29 April 2024. The State introduced copies of the Custody
and Visitation Agreements (CVAs) underlying the charges. CVAs had captions atop
1 Venue was transferred from Cherokee County to Macon County in October 2023.
2 Each Indictment specified the date of each alleged offense and the name of the Minor Child
at issue. Otherwise, the language of all twenty Indictments was identical.
-2-STATE V. LINDSAY
Opinion of the Court
their first pages, featuring the text “NORTH CAROLINA”; “CHEROKEE COUNTY”;
and “CUSTODY AND VISITATION AGREEMENT[.]”3 Initial paragraphs typically
indicated the CVA was “made and entered into . . . by and between” the Parent(s) of
a Minor Child and another person (Caretaker) who would take “custody” of the Minor
Child pursuant to the agreement. Under “WITNESSETH[,]” the names of the
Parent(s), Minor Child(ren), and Caretaker(s) were listed.
Next, a typical CVA included provisions like the following:
Whereas, [Caretakers], are able to provide a loving and stable
home environment for said child and can provide for the support
and maintenance of said child if the said child resides with them
in their home;
Whereas, the parties hereto desire to enter into this Agreement
setting forth the terms and conditions for the care, custody and
control of [Minor Child] which the parties hereto deem to be in
the best interest of said child in order to adequately provide a
loving and stable future for said child now and in the future.
NOW, THEREFORE, [Parents] and [Caretakers], do hereby
stipulate and agree as follows:
1. The legal and physical care, custody and control of [Minor
Child] . . . shall be placed with . . . [Caretakers], until such time
as [Minor Child] shall become 18 years of age or is otherwise
emancipated. [Caretakers] shall hereafter be the caretakers of
the child as that term is defined by G.S. 7B-101(3); and
2. [Parents] shall have the right to have visitation with the [Minor
Child] at reasonable times and for a reasonable length of time on
3 The CVAs’ captions varied slightly. Most CVAs used the language “CUSTODY AND VISITATION AGREEMENT[.]” One CVA was captioned “CUSTODY, GUARDIANSHIP AND VISITATION AGREEMENT[.]” Three were captioned “CHILD CUSTODY AND VISITATION AGREEMENT[.]”
-3-STATE V. LINDSAY
Opinion of the Court
each visitation period as [Caretakers] may agree from time to
time in the future subject to [various] terms and conditions . . . .
6. It is stipulated and agreed that [Caretakers] shall have full
power and authority to seek, obtain and consent to and for any
medical or health care, emergency or otherwise, which may be
necessary or advisable in providing for the best interests and care
of [Minor Child]. It is further stipulated and agreed that
[Caretakers] shall have full power and authority to enroll the
child in school . . . [and] to consent to any and all extracurricular
activities, sports activities and programs which are necessary or
beneficial to provide for the complete and well-rounded education
of the child.
7. It is stipulated and agreed that [Caretakers] may enroll and
carry the child on their health care insurance or any other
insurance for which the child may qualify as a member of the
[Caretakers’] home and household. It is further stipulated and
agreed that for the purposes of filing State and/or Federal income
tax returns that [Caretakers] may claim the child as a dependent
and as an exemption and, [Caretakers] shall be entitled to any
claim and take advantage of any other tax benefit available to
them because the child is a member of the [Caretakers’] home and
household.
8. It is hereto stipulated and agreed that the home state of the
child as defined by the Uniform Child Custody Jurisdiction Act is
North Carolina and any and all legal proceedings involving the
custody of or visitation with the child shall and must be filed,
litigated and decided in the Courts of the State of North Carolina
pursuant to applicable North Carolina law and North Carolina
judicial decisions.
9. It is hereto stipulated and agreed that the site of this
Agreement is North Carolina and said Agreement shall be
interpreted in accordance with and governed by the laws and
judicial decisions of the State of North Carolina.
IN WITNESS WHEREOF, the parties hereto have set their hands
-4-STATE V. LINDSAY
Opinion of the Court
and seals, the day and year first above written.
CVAs were signed by Parent(s) and Caretaker(s) and notarized by a Notary
Public. CVAs were signed at various locations, including Parents’ homes and the
Cherokee DSS office. Neither Defendant nor any other Cherokee DSS employee
signed the CVAs. Testimony indicated no Parent had an attorney present when
signing a CVA. Multiple Parents testified Cherokee DSS did not inform them they
would have the right to an attorney if a case involving their children or parental
rights instead went to court.
Lisa Cauley, the Division Director of Social Services at the North Carolina
Department of Health and Human Services (DHHS), testified for the State as an
expert witness “in the field of social work[,] abuse, neglect, and dependency
processes[.]” Cauley participated in an investigation of Cherokee DSS after DHHS
was “alerted to concerns” about the agency’s use of CVAs.4
Cauley testified a social services agency like Cherokee DSS “does not have the
authority to remove a child from parents; a judge has to make that decision.” Rather,
DSS staff must follow the procedures set out in Chapter 7B of the North Carolina
General Statutes. Under Chapter 7B, the District Court has exclusive jurisdiction to:
adjudicate juveniles abused, neglected, or dependent; authorize DSS to take
4 As a result of this investigation, DHHS “took over the operation” of Cherokee DSS in 2018.
Cauley testified DHHS took this step for the purpose of “bring[ing] the county back into compliance with law, rule, and policy.”
-5-STATE V. LINDSAY
Opinion of the Court
nonsecure custody of juveniles and place them in other homes; and terminate
parental rights.
The State inquired further on this topic:
[The State]: So the decision about whether to dislodge [a] child
from their parents, who makes that decision?
[Cauley]: . . . there are times where parents would voluntarily
temporarily make that decision in a safety plan. But if you were
looking at parents losing custody of children, . . . that decision
would be made by a judge.
[The State]: Okay. And so a parent giving up their child until
they’re emancipated or 18 years old, that decision would have to
come from a judge; is that correct?
[Cauley]: An agency couldn’t make that decision without a judge,
that’s correct.
Cauley also testified about parents’ statutory right to counsel during these
proceedings, specifically noting attorneys are provided to indigent parents at no cost.
Further, Cauley explained a parent entitled to an appointed attorney by statute may
waive this right only if the judge determines the waiver is knowing and voluntary.
In her testimony, Cauley also confirmed: CVAs “were done without any
petition” by Cherokee DSS to the District Court; “the usage of [CVAs] . . . is [not]
found anywhere” in the North Carolina General Statutes; and DHHS has “no policy
that allows” social services agencies to use CVAs.
Several Social Workers who worked with Defendant at Cherokee DSS testified.
Social Work Supervisor David Hughes (SWS Hughes) started at the agency in 2011;
-6-STATE V. LINDSAY
Opinion of the Court
in 2016, he was promoted to Supervisor of the Child Protective Services Unit (CPS
Unit), which handled reports of child abuse, neglect, and dependency. The CPS Unit
had a large caseload; in one year, it received “probably 400 reports[,]” or “more than
one report a day.” SWS Hughes explained the CPS Unit was usually short-staffed
during his tenure; the unit was “supposed to have . . . seven social workers[,]” but “at
one point . . . [it] only had two[.]”
SWS Hughes testified DHHS performed an audit of the CPS Unit in October
2016. The audit recommended the CPS Unit “needed to close out cases, get our
numbers down. We also needed to hire more social workers. But the big thing was
getting the numbers down.” SWS Hughes confirmed that after the DHHS audit,
Cherokee DSS’ “usage of [CVAs] increase[d] to close cases faster.”
According to SWS Hughes, the idea to use CVAs “came from” Defendant, who
“had produced an original [CVA] template.” Defendant sometimes drafted CVAs
himself. At other times, Social Workers, using Defendant’s template, “basically
change[d] some wording,” adding information like names, addresses, dates of birth,
and relevant circumstances, so each CVA would be “tailor-made to that particular
case.” According to SWS Hughes, Defendant would ask Social Workers to send him
their draft CVAs “so he could look them over before they were presented to the
parents.” Defendant would typically reply to Social Workers with revised CVAs or
indicate their drafts were “good to go.” In an email exchange introduced into evidence
by the State, SWS Hughes sent Defendant a draft CVA and requested he “check this
-7-STATE V. LINDSAY
Opinion of the Court
out and see if it meets your approval[.]” Defendant emailed back a revised CVA, and
added, “If you have any questions or concerns after you review the attached custody
agreement, please let me know.”
SWS Hughes confirmed Defendant, in his position as Cherokee DSS Attorney,
was responsible for arguing the agency’s petitions for an adjudication of abuse,
neglect, or dependency in District Court. SWS Hughes recounted a meeting with
Defendant on a day Defendant lost multiple petition cases in court. A “frustrated”
Defendant told SWS Hughes, “it’s expensive to file these petitions.” SWS Hughes
acknowledged it was “cheaper to do a [CVA] than it is to do a petition[.]” This was
because the state or county usually had to spend “a lot of money” to provide services
to families after a petition case reached a disposition in District Court.5 It also “took
a lot longer to do a petition and go to the court” compared to doing a CVA.
SWS Hughes testified about the types of cases for which CVAs tended to be
proposed by Cherokee DSS staff. At weekly staff meetings, “most” of which Defendant
attended, Social Workers would discuss their “stuck cases[.]”
The State asked SWS Hughes to define a “stuck case”:
[SWS Hughes]: Well, say, the family is refusing to follow through
with the services that have been recommended. . . . They’re telling
the social worker, ‘I’m not coming to the door anymore, don’t
bother coming to my house.’ They won’t go for assessments at a
mental health provider, or they won’t go to a mental health
provider that has classes set up for them. They are just basically
5 As multiple witnesses testified, after a CVA was executed in a case, Cherokee DSS closed the
case and did not follow up with or provide any further services to Parents or Minor Children.
-8-STATE V. LINDSAY
Opinion of the Court
refusing to participate in the services. And they are telling
[Cherokee DSS] . . . ‘I’m through with you all. My child, perhaps,
is already living with my parents, the grandparents. Just tell me
what I need to do, I’m ready to sign my child over.’ That was the
reply a lot of times that we would get.
[The State]: Okay. What if [a parent] didn’t say ‘I want to turn my
child over,’ but they just said, ‘I’m done with you, stop coming to
my door,’ . . . why would the case be stuck?
[SWS Hughes]: Well . . . it’s basically just refusing to cooperate
with DSS. And if . . . we had a conversation or the social worker
did with the family when they said, ‘I’m ready to sign my child
over,’ when [a Social Worker] brought that information back and
discussed it in the staff meeting, then a CVA might be brought up
as the alternative to the situation. Because a lot of times these
parents would say, . . . ‘I’ll do whatever I’ve got to do, I don’t want
to go to court. I just want to sign my children over to my parents
and get you all out of my life.’
[The State]: Sir, isn’t the reason these cases were stuck is because
the parent didn’t want to cooperate but [Cherokee] DSS didn’t
want to go to court?
[SWS Hughes]: It could be a little bit of both.
[The State]: . . . in that situation, wouldn’t the case be stuck
because [Cherokee DSS] felt like [it] w[as] going to lose at court,
but at the same time the parent wasn’t responding how [Cherokee
DSS] wanted them to?
[SWS Hughes]: That’s correct. There might not have been enough
evidence that [Cherokee DSS] would win a case if [it] did file
petitions.
Per SWS Hughes, Cherokee DSS staff “would confer with [Defendant]” as to
whether there was sufficient evidence to successfully bring a petition in court and
Defendant “would weigh in” on the decision to file a petition or use a CVA.
-9-STATE V. LINDSAY
Opinion of the Court
Former CPS Unit Social Worker Katie Brown (SW Brown) testified Defendant
“introduced” CVAs to her. SW Brown first received a “blank [CVA] template” from
Defendant by email. She “ha[d] to” send Defendant her draft CVAs so he could “make
sure that everything was written in there correctly.”
Former Social Worker Laurel Smith (SW Smith) testified. When she worked
for Cherokee DSS, SW Smith originally thought a CVA was “equivalent to a legal
document that would be the same as if we went to court[.]” SW Smith testified she
had this understanding “because we were told that [a CVA] was a legal document” by
Defendant.
In an email introduced by the State, SW Smith asked Defendant, “[w]ould it
be possible to draw up a custody order” for a particular case. In his reply email,
Defendant wrote:
Attached is the draft of . . . [the] custody/guardianship/visitation
agreement for your file. Please let me know if anything needs to
be corrected, changed, or added. Hopefully this agreement will
suffice provided no one challenges it in court.
Former CPS Unit Social Worker Courtney Myers (SW Myers) recalled raising
“concerns” to her colleagues about whether CVAs “were proper or not.” SW Myers
“voice[d]” these concerns “to make sure that [CVAs] . . . w[ere] something we could
do, because any other time we needed a judge’s decision on changing custody of a
child.” SW Myers’s supervisor asked Defendant to join a meeting to answer her
questions, and “[Defendant] said that we could do [CVAs], it was fine.”
- 10 -STATE V. LINDSAY
Opinion of the Court
According to SW Myers, CVAs became “an internal practice” at Cherokee DSS
based on Defendant’s legal advice. She could not “do . . [a] [CVA]” without Defendant’s
review and approval.
SW Myers further testified Defendant advised her certain cases would be
“weak petitions,” meaning it was unclear whether Cherokee DSS had enough
evidence to file the petition and “win” in court. SW Myers recounted wanting to file a
petition in a particular case, noting her social work training had taught her a petition
“would have been the next step” because the Parents “weren’t working their case
plan[,]” as they “hadn’t done enough to address the safety concerns that got
[Cherokee] DSS involve[d].” However, Cherokee DSS elected to use a CVA because it
was decided the case “would have been a weak petition.”
The State called District Court Judge Monica Leslie as a witness. Judge Leslie
presided over abuse, neglect, and dependency cases in Cherokee County.
Judge Leslie described a December 2017 meeting Defendant attended at the
county courthouse. A Parent had hired an attorney to challenge the CVA the Parent
had signed.
Judge Leslie recounted questions she asked Defendant about CVAs:
[Judge Leslie]: I asked what statutory or legal authority he had
to . . . enter these agreements . . . to prepare or write the CVAs. .
. . And [Defendant’s] response was ‘None.’
At the close of its evidence, the State dismissed six of the twenty Indictments.
Defendant made Motions to Dismiss the remaining charges for insufficient evidence
- 11 -STATE V. LINDSAY
Opinion of the Court
at the close of the State’s evidence and the close of all evidence.6 The trial court denied
both Motions.
At the charge conference, the parties discussed a proposed jury instruction on
a theory of aiding and abetting. Defendant objected to the instruction. The trial court
overruled Defendant’s objection and instructed the jury on the theory of aiding and
abetting Obstruction of Justice using the North Carolina Pattern Jury Instruction.7
The jury found Defendant guilty on all fourteen counts of Obstruction of
Justice. In its Judgment, the trial court consolidated the counts and sentenced
Defendant to five to fifteen months in prison, suspended for twelve months of
unsupervised probation. Defendant provided oral Notice of Appeal after the jury
announced its verdict but before the trial court pronounced his sentence.
Appellate Jurisdiction
“Notice of appeal shall be given within the time, in the manner and with the
effect provided in the rules of appellate procedure.” N.C. Gen. Stat. § 15A-1448(b)
(2025). Rule 4(a) of the North Carolina Rules of Appellate Procedure provides “appeal
from a judgment or order of a superior or district court” may be taken by “giving oral
notice of appeal at trial[.]” (emphasis added). “An oral notice of appeal given before
entry of the final judgment violates Rule 4 and does not give this Court jurisdiction
to hear the defendant’s direct appeal.” State v. Jones, 296 N.C. App. 512, 515, 909
6 Defendant declined to present evidence.
7 See N.C.P.I.--Crim. 202.20 (titled “Aiding and Abetting--Felony, Misdemeanor”).
- 12 -STATE V. LINDSAY
Opinion of the Court
S.E.2d 373, 376 (2024) (citing State v. Smith, 292 N.C. App. 662, 665, 898 S.E.2d 909,
912 (2024) and State v. Lopez, 264 N.C. App. 496, 503, 826 S.E.2d 498, 503 (2019)).
In the instant case, the Record reflects that after the jury announced its verdict
but prior to sentencing, defense counsel said, “I better say we appeal this verdict.”
Thus, as Defendant prematurely entered oral Notice of Appeal before entry of the
final Judgment in violation of Rule 4 of our Rules of Appellate Procedure, this Court
does not have jurisdiction to hear Defendant’s appeal. See Jones, 296 N.C. App. at
515, 909 S.E.2d at 376.
Defendant, acknowledging this defect, filed a Petition for Writ of Certiorari to
allow us to hear this appeal. “The writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of the judgments and orders
of trial tribunals when the right to prosecute an appeal has been lost by failure to
take timely action[.]” N.C. R. App. P. 21(a)(1) (2026). Here, it is clear Defendant
expressed an intent to appeal although he failed to do so at the proper time. Thus, in
our discretion, we allow Defendant’s Petition and reach the merits of his appeal.
Issues
The issues on appeal are whether: (I) the trial court erred by denying
Defendant’s Motions to Dismiss; (II) the trial court erred by instructing the jury on
the theory of aiding and abetting; and (III) the Indictments were sufficient.
Analysis
I. Denials of Motions to Dismiss
- 13 -STATE V. LINDSAY
Opinion of the Court
Defendant contends the trial court erred by denying his Motions to Dismiss the
Obstruction of Justice charges for insufficient evidence.
In ruling on a motion to dismiss, the trial court’s task is to decide ‘‘whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of [the] defendant’s being the perpetrator
of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (2000) (citation and quotation marks omitted). “The evidence
is ‘substantial’ if it is relevant and adequate to convince a reasonable mind to accept
a conclusion.” State v. Ford, 388 N.C. 713, 720, 923 S.E.2d 549, 554 (2025) (citation
and quotation marks omitted). However, “[i]f the evidence is sufficient only to raise a
suspicion or conjecture” that the defendant committed the offense, the trial court
must grant the motion to dismiss. Fritsch, 351 N.C. at 378, 526 S.E.2d at 455 (citation
and quotation marks omitted).
“In deciding whether the evidence presented is substantial, the trial court must
view the evidence in the light most favorable to the State, giving the State the benefit
of all reasonable inferences[.]” Ford, 388 N.C. at 720, 923 S.E.2d at 554 (citations and
quotation marks omitted). “Any contradictions or conflicts in the evidence must be
resolved in the State’s favor.” Id. (citation omitted). “It is immaterial whether the
substantial evidence is circumstantial or direct, or both.” State v. Stephens, 244 N.C.
380, 383, 93 S.E.2d 431, 433 (1956). “When ruling on a motion to dismiss, the trial
court should be concerned only about whether the evidence is sufficient for jury
- 14 -STATE V. LINDSAY
Opinion of the Court
consideration, not about the weight of the evidence.” Fritsch, 351 N.C. at 379, 526
S.E.2d at 455-56 (citation omitted). “Whether the State presented substantial
evidence of each essential element of the offense is a question of law; therefore, we
review the denial of a motion to dismiss de novo.” State v. Crockett, 368 N.C. 717, 720,
782 S.E.2d 878, 881 (2016) (citation omitted).
The elements of felony Obstruction of Justice are: “(1) the defendant unlawfully
and willfully; (2) obstructed justice; (3) with deceit and intent to defraud.” State v.
Ditenhafer, 373 N.C. 116, 128, 834 S.E.2d 392, 400 (2019) (quoting State v. Cousin,
233 N.C. App. 523, 537, 757 S.E.2d 332, 342-43 (2014)). Here, Defendant argues “[t]he
State did not present sufficient evidence that [he] . . . willfully obstructed justice by
using CVAs for the purpose of hindering or impeding a proceeding or investigation.”
Thus, Defendant challenges two essential elements of Obstruction of Justice. First,
he claims the State did not show his acts obstructed justice within the meaning of the
offense. Second, Defendant contends there was insufficient evidence he acted
willfully.
A. Obstructive Acts
Obstruction of Justice “may take a variety of forms.” In re Kivett, 309 N.C. 635,
670, 309 S.E.2d 442, 462 (1983) (citation and quotation marks omitted). The offense
incorporates “any act which prevents, obstructs, impedes, or hinders public or legal
justice.” Ford, 388 N.C. at 720-21, 923 S.E.2d at 555 (citation and quotation marks
omitted).
- 15 -STATE V. LINDSAY
Opinion of the Court
In State v. Coffey, this Court clarified the categories of “acts” that satisfy the
conduct element of this offense. 292 N.C. App. 463, 898 S.E.2d 359, disc. review
denied, 386 N.C. 341, 901 S.E.2d 796 (2024). There, we held:
[F]or an act to meet the elements of obstruction of justice—that
is, an ‘act which prevents, obstructs, impedes or hinders public or
legal justice’—the act—even one done intentionally, knowingly,
or fraudulently—must nevertheless be one that is done for the
purpose of hindering or impeding a judicial or official proceeding
or investigation or potential investigation, which might lead to a
judicial or official proceeding.
Id. at 471, 898 S.E.2d at 364 (citation omitted). See also State v. Wilkins, 295 N.C.
App. 695, 700, 907 S.E.2d 74, 78 (2024) (citing this definition from Coffey and
describing it as the definition of “[a]n obstructive act”). A judicial or official proceeding
or investigation need not be pending for the acts to obstruct justice. See Coffey, 292
N.C. App. at 471, 898 S.E.2d at 364; State v. Wright, 206 N.C. App. 239, 243, 696
S.E.2d 832, 836 (2010) (where defendant, an elected official, filed false campaign
finance reports prior to any proceeding related to this misconduct began, “the lack of
any pending proceeding” was “immaterial” to the validity of the obstruction of justice
charge against him). Obstruction of Justice may be based on acts alleged to obstruct
current or potential proceedings or investigations in criminal or civil contexts. See
Coffey, 292 N.C. App. at 469-70, 898 S.E.2d at 363-64 (summarizing cases arising
from criminal and civil investigations and proceedings).
Here, evidence at trial showed Defendant “introduced” CVAs to Cherokee DSS.
The CVA idea “came from [Defendant].” Defendant “produced an original [CVA]
- 16 -STATE V. LINDSAY
Opinion of the Court
template[.]” Defendant drafted CVAs himself. CVAs drafted by Social Workers
required his review and approval. As a result, the use of CVAs became an “internal
practice” Cherokee DSS employed to “get cases closed faster[,]” resolve “stuck cases[,]”
and as an alternative to filing “weak petitions[.]”
However, as Cauley explained, CVAs are “[not] found anywhere” in our
General Statutes, which instead grant the District Court exclusive jurisdiction to
adjudicate juveniles abused, neglected, or dependent, authorize DSS to remove
juveniles from a parent’s custody, and terminate parental rights. DSS itself “does not
have the authority to remove a child from a parent; a judge has to make that
decision.” Thus, the jury heard evidence indicating Defendant used CVAs to avoid
judicial proceedings protecting the rights of parents and juveniles.
Thus, viewed in the light most favorable to the State, there was substantial
evidence Defendant acted for the purpose of hindering, impeding, or obstructing a
potential judicial proceeding by enabling Cherokee DSS, through the use of CVAs, to
circumvent statutory procedures, statutory protections, and court oversight over
cases.8 See Coffey, 292 N.C. App. at 471, 898 S.E.2d at 364.
B. Willfulness
“Ordinarily, ‘wil[l]ful’ as used in criminal statutes, means the wrongful doing
8 It is immaterial that Cherokee DSS did not file petitions in District Court before facilitating
the execution of CVAs because a pending proceeding is not required for Obstruction of Justice. See Coffey, 292 N.C. App. at 471, 898 S.E.2d at 364; Wright, 206 N.C. App. at 243, 696 S.E.2d at 836.
- 17 -STATE V. LINDSAY
Opinion of the Court
of an act without justification or excuse, or the commission of an act purposely and
deliberately in violation of law.” State v. Williams, 284 N.C. 67, 72, 199 S.E.2d 409,
412 (1973) (brackets and quotation marks omitted) (citing State v. Arnold, 264 N.C.
348, 141 S.E.2d 473 (1965)); accord State v. Ramos, 363 N.C. 352, 355, 678 S.E.2d
224, 226 (2009).
Defendant argues “[t]here was no evidence that [he] acted without justification
or excuse, or committed an act purposely and deliberately in violation of law.” In
response, the State argues the evidence “showed that Defendant acted willfully
because he knew CVAs were not based on any lawful authority” but he nonetheless
“encouraged their use[.]” We agree with the State.
The State introduced Defendant’s email to SW Smith in which he stated,
“[h]opefully this [CVA] will suffice provided no one challenges it in court.” Judge
Leslie testified Defendant said “None” when she asked him for a “statutory or legal
authority [he] had to . . . prepare or write the CVAs.” The email tends to show
Defendant knew CVAs were unlawful instruments because they would only “suffice”
if not challenged in court. Judge Leslie’s testimony showed Defendant used CVAs
despite knowing no statutory or legal authority supported the practice. This is
substantial evidence Defendant committed wrongful acts without lawful justification
or excuse and/or acted purposely and deliberately in violation of law. See Williams,
284 N.C. at 72, 199 S.E.2d at 412.
Thus, the State presented substantial evidence Defendant committed
- 18 -STATE V. LINDSAY
Opinion of the Court
“obstructive acts,” see Coffey, 292 N.C. App. at 471, 898 S.E.2d at 364-65, and did so
willfully, see Williams, 284 N.C. at 72, 199 S.E.2d at 412. Thus, there was substantial
evidence of the two essential elements of the offense Defendant challenges on appeal.
See Fritsch, 351 N.C. at 378, 526 S.E.2d at 455. Therefore, the trial court did not err
by denying Defendant’s Motions to Dismiss the Obstruction of Justice charges for
insufficient evidence. See id.
II. Aiding and Abetting Jury Instruction
Defendant argues the trial court erred by instructing the jury on the theory of
aiding and abetting. Where, as here, “the defendant preserves his challenge to jury
instructions by objecting at trial, we review the trial court’s decisions regarding jury
instructions de novo.” State v. Hope, 223 N.C. App. 468, 471-72, 737 S.E.2d 108, 111
(2012) (citation, quotation marks, brackets, and ellipsis omitted).
Under North Carolina law, a jury instruction on aiding and
abetting is supported by sufficient evidence if there is evidence
that ‘(i) the crime was committed by some other person; (ii) the
defendant knowingly advised, instigated, encouraged, procured,
or aided the other person to commit that crime; and (iii) the
defendant’s actions or statements caused or contributed to the
commission of the crime by that other person.’
State v. Young, 196 N.C. App. 691, 695-96, 675 S.E.2d 704, 707 (2009) (quoting State
v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999)). The State is not required to
prove any element of aiding and abetting “beyond a reasonable doubt before the trial
court may instruct on aiding and abetting; there needs only to be evidence supporting
the instructions, and the jury is to determine whether the State has proved the
- 19 -STATE V. LINDSAY
Opinion of the Court
elements beyond a reasonable doubt.” State v. Baskin, 190 N.C. App. 102, 111-12, 660
S.E.2d 566, 573-74 (2008) (citation omitted).
Here, as we have discussed, the evidence was sufficient as a matter of law to
overcome Defendant’s Motions to Dismiss and submit the Obstruction of Justice
charges to the jury. Thus, regarding the first element of aiding and abetting, because
there was evidence other Cherokee DSS employees participated in and facilitated the
agency’s use of CVAs, the evidence supported instructing the jury the offense was
also “committed by some other person[s][.]” See Young, 196 N.C. App. at 696, 675
S.E.2d at 707.
The evidence also indicated Defendant knowingly advised, encouraged, and
aided his colleagues to obstruct justice through the use of CVAs. See id. Social
Workers testified Defendant originated the CVA idea, introduced CVAs to the agency,
and produced an original CVA template. Social Workers testified their draft CVAs
required Defendant’s review and approval. According to SWS Hughes, Cherokee DSS
staff “would confer with” Defendant on whether the agency had enough evidence to
bring successful petitions in court, and he would “weigh in” on decisions to file
petitions or use CVAs. Further, emails introduced by the State showed Defendant
drafted, reviewed, revised, and approved CVAs.
Regarding the final element of aiding and abetting, evidence indicated
Defendant caused or contributed to the commission of Obstruction of Justice by his
colleagues. See id. Again, Social Workers testified Defendant was required to review
- 20 -STATE V. LINDSAY
Opinion of the Court
and approve CVAs before they were presented to parents. SW Myers recounted
raising concerns about Cherokee DSS using CVAs to “chang[e] custody of a child”
without “a judge’s decision[.]” However, SW Myers testified Defendant told her it was
“fine” and the agency “could do [CVAs].” Per SW Myers, CVAs became an “internal
practice” at the agency based on Defendant’s legal advice. Moreover, SW Smith
testified Defendant “told” Cherokee DSS staff that a CVA “was a legal document[.]”
This evidence showed Defendant contributed to the commission of Obstruction of
Justice by his colleagues by: introducing CVAs to the agency; drafting CVAs;
reviewing and approving drafts created by Social Workers; and sanctioning the use
of CVAs through his authority as the Cherokee DSS Attorney.
Therefore, because there was sufficient evidence of all elements of aiding and
abetting, see id. at 695-96, 675 S.E.2d at 707, and the evidence supported giving the
instruction, see Baskin, 190 N.C. App. at 111-12, 660 S.E.2d at 573-74, the trial court
did not err by instructing the jury on the theory of aiding and abetting.
III. Sufficiency of Indictments
An indictment must include 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 . . . of the conduct which is the
subject of the accusation.” N.C. Gen. Stat. § 15A-924(a)(5). “[T]he test used to
determine the validity of an indictment is simply, ‘whether the indictment alleges
- 21 -STATE V. LINDSAY
Opinion of the Court
facts supporting the essential elements of the offense to be charged.’ ” State v. Horton,
294 N.C. App. 614, 617, 903 S.E.2d 870, 874 (2024) (quoting State v. Stewart, 386
N.C. 237, 241, 900 S.E.2d 652, 656 (2024)). “The sufficiency of an indictment is a
question of law reviewed de novo.” State v. White, 372 N.C. 248, 250, 827 S.E.2d 80,
82 (2019) (citation omitted).
There are “two distinct species of indictment [defects], jurisdictional and nonjurisdictional[.]” State v. Singleton, 386 N.C. 183, 196, 900 S.E.2d 802, 812 (2024). A
jurisdictional defect “only aris[es] where an indictment wholly fails to allege a
crime[.]” Id. at 184, 900 S.E.2d at 805. “[W]here a criminal indictment suffers from a
jurisdictional defect, courts lack the ability to act.” Id. On the other hand, the “failure
to allege with sufficient precision [the] facts and elements of a crime” in an indictment
is a non-jurisdictional defect. Id. at 199, 900 S.E.2d at 814. “A defendant seeking
relief” from a non-jurisdictional defect “must demonstrate not only that such an error
occurred, but also that such error was prejudicial.” Id. at 210, 900 S.E.2d at 821
(citation omitted).
When an indictment for Obstruction of Justice “fails to allege that the acts
were intended to interfere with an investigation or proceeding, it fails to allege facts
supporting an element of the offense.” Wilkins, 295 N.C. App. at 701, 907 S.E.2d at
79 (citing Coffey, 292 N.C. App. at 471, 898 S.E.2d at 365). Citing Wilkins, Defendant
contends the Indictments “failed to allege conduct showing that [he] intended to
interfere with an investigation,” and thus “did not allege conduct that could be
- 22 -STATE V. LINDSAY
Opinion of the Court
understood to constitute” the offense. Thus, Defendant argues the Indictments suffer
from a jurisdictional defect because they failed to state a crime. Therefore, Defendant
argues the trial court erred by denying his Motion to Dismiss the Indictments.
Wilkins and Coffey involved “nearly identical” indictments for Obstruction of
Justice. Id. As those cases established, for this offense, “[a]n obstructive act is ‘one
that is done for the purpose of hindering or impeding a judicial or official proceeding
or investigation or potential investigation, which might lead to a judicial or official
proceeding.’ ” Id. at 700, 907 S.E.2d at 78 (quoting Coffey, 292 N.C. App. at 471, 898
S.E.2d at 364). In Wilkins, we observed the indictment did not assert any facts
indicating the defendant’s wrongful acts in submitting falsified training records
“were done to subvert a potential subsequent investigation or legal proceeding[.]” Id.
at 701, 907 S.E.2d at 79 (citation and quotation marks omitted). Thus, we held the
indictment did “not allege conduct that could be understood to constitute common law
obstruction of justice and therefore fails entirely to allege a criminal act, creating a
jurisdictional defect.” Id. at 702 n.2, 907 S.E.2d at 80 n.2.
The Indictments in the instant case are distinguishable from those in Coffey
and Wilkins. Here, the Indictments stated:
THE JURORS FOR THE STATE, UPON THEIR OATH, present
that on or about [Date], in Cherokee County, the defendant
named above did unlawfully, willfully and feloniously did
obstruct justice. The defendant, as the attorney for the Cherokee
County Department of Social Services, created, improperly
prepared, approved, made a custom practice, and used a “Custody
and Visitation Agreement” (CVA) in the matter of [Minor Child],
- 23 -STATE V. LINDSAY
Opinion of the Court
which was an agreement that allowed the removal of minor
children from their parent(s) without court involvement, in
violation of North Carolina law. The use of this agreement
effectively avoided judicial oversight into the activities of
Cherokee County DSS, and subverted the statutory process for
determining abuse and neglect of children, and determining
custody and parental rights. The practice of using a CVA in this
matter interfered with the parental relationship between a
parent and child, violating the constitutional and statutory rights
of parents and minor children. This offense was done in secrecy
and with malice; with deceit and intent to defraud; was infamous;
and was done in violation of the common law, and against the
peace and dignity of the State.
We note the language alleging Defendant’s use of CVAs “allowed the removal
of minor children from their parent(s) without court involvement, in violation of
North Carolina law” and “effectively avoided judicial oversight into the activities” of
Cherokee DSS. Unlike in Wilkins, the references to avoiding judicial oversight
suggests Defendant committed the alleged acts to “subvert” a potential judicial
proceeding. Id. at 701, 907 S.E.2d at 79. Thus, we cannot say the Indictments “did
not allege conduct that could be understood to constitute common law obstruction of
justice[.]” Id. at 702 n.2, 907 S.E.2d at 80 n.2. Therefore, the language in the
Indictments did not create a jurisdictional defect. See id.; Singleton, 386 N.C. at 184,
900 S.E.2d at 805.
Defendant also notes the Indictments “did not allege the purpose of the
[CVAs].” Here, Defendant appears to argue the Indictments are flawed because they
did not allege he used CVAs “for the purpose” of obstructing an ongoing or potential
official or judicial investigation or proceeding—a required element of the offense
- 24 -STATE V. LINDSAY
Opinion of the Court
under Coffey. In substance, Defendant is claiming a non-jurisdictional defect, because
he contends the Indictments did not state with “sufficient precision” the facts
underlying an element of the offense. Singleton, 386 N.C. at 199, 900 S.E.2d at 814.
However, even assuming the omission of the CVAs’ “purpose” from the Indictments
was error, Defendant does not explain, as is required, how such an error was
prejudicial. See id. at 210, 900 S.E.2d at 821.
Thus, there is no jurisdictional defect in the Indictments under Coffey and
Wilkins and, to the extent Defendant alleges a non-jurisdictional defect, he has not
shown any such error was prejudicial. See id. Therefore, the Indictments were
sufficient because they alleged facts supporting the essential elements of the charged
offenses. See Horton, 294 N.C. App. at 617, 903 S.E.2d at 874. Consequently, the trial
court did not err by denying Defendant’s Motion to Dismiss the Indictments. See id.
at 619, 903 S.E.2d at 875.
Conclusion
Accordingly, for the foregoing reasons, we conclude there was no error at
Defendant’s trial and affirm the Judgment.
NO ERROR.
Judges GORE and GRIFFIN concur.
- 25 -