State v. PhippsState v. Phipps
- Reporters:
- , ,
- Before:
- Greene
Stacy Richard Phipps (defendant) appeals his conviction for defacing a grave site in violation оf
The body of George Washington Hudson was interred in a mausoleum on the grounds of the George Washington Hudson Cemetery in Turkey, North Carolina, in 1958. The cemetery is set off from other land by a brick border. In 1976, Mr. Hudson’s body was moved to the Grand View Memorial Cemetery in Clinton to be buried next to his wife, who had passed away that year, and the mausolеum was removed. With the exception of the interment of Mr. Hudson’s body from 1958 to 1976, no other person has ever been interred on the grounds of the George Washington Hudson Cemetery. After Mr. Hudson’s body was removed in 1976, the cemetery consisted of the brick border around the cemetery, a brick slab upon which the mausoleum had sat, and Mr. Hudsоn’s headstone, which lay face down in the ground near the brick slab.
In April, 1992, Mr. Hudson’s son, David Dwight Hudson Sr., noticed that portiоns of the brick border were missing and the headstone had been knocked out of the ground. He further noticed mаrkings where a tractor had been driven across the lot and that some of the bricks making up the border of thе George Washington Hudson Cemetery had been damaged by a tractor being driven ovér them. During one visit to the cemetery, Dwight Hudson observed defendant driving his tractor near the George Washington Hudson Cemetery. When asked by Dwight Hudson if he had attempted to dig up the headstone, defendant stated that he had run over it with his tractor and his disk had knocked it out of the ground. Defendant further admitted that he had removed some of the bricks which made up the bordеr around the cemetery. There is no evidence that defendant had permission to remove the bricks оr to damage the bricks by driving his tractor over them.
*628Defendant was arrested and charged with two counts of defacing a grave site in violation of
The dispositive issue is whether it is an element of the offense created by
N.C. Gen. Stat. § 14-148(a)(2) makes it unlawful to willfully:
(2) Take away, disturb, vandalize, destroy or change the location of any stone, brick, iron or other material or fence еnclosing a cemetery without authorization of law or corir sent of the surviving spouse or next of kin of the deceased thereby causing damage of less than one thousand dollars ($1,000); ....
Defendant argues that becаuse all of the evidence presented at trial showed that no deceased person was interred in the cemetery, the State has not proven all of the essential elements of the crime chargеd, and defendant’s conviction must therefore be reversed. We agree.
The language of
*629Where a statute contains ambiguities, a reviewing court must attempt to discern and effectuate the intent of the legislature, utilizing accepted rules of statutory construction. See Young v. Whitehall Co., Inc., 229 N.C. 360, 367, 49 S.E.2d 797, 801 (1948) (“[CJourt must resort to construction to ascertain the legislative will.”). One of the recognized rules of construction is that where the words of a statute have not acquired a technical meaning, they must be construed in accordance with their common and ordinary meaning unless a different meaning is apparent or definitely indicatеd by the context. State v. Lee, 277 N.C. 242, 243, 176 S.E.2d 772, 773 (1970).
Although the common and ordinary meaning of the word “cemetery” does not require that a deceased person be interred at .a site for that site to be a cemetery, it is apparent thаt the legislature, by its inclusion of the phrase “without . . . consent of the surviving spouse or next of kin of the deceаsed,” intended the word “cemetery,” as used in the context of
In this case, there was uncontradicted evidence that there was in fact no deceased person interred in the George Washington Hudson Cemetery at the time defendant rеmoved or damaged the bricks making up the border of the cemetery. As such, the State failed to prove an essential element of the crime charged. Defendant’s motion to dismiss was therefore improperly denied and defendant’s conviction must be reversed.
Reversed.
Judges MARTIN and JOHN concur.