IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA 19

- 427 Filed: 20 October 2020 Perquimans County , No s. 16CRS 000 382 , 17CRS 00000 3 STATE OF NORTH CAROLINA

v. MICHAEL RAY WATERFIELD , Defendant.
Appeal by D efendant from judgment entered 7 November 2018 by Judge Marvin K. Blount III in Perquimans County Superior Court

. Heard in the Court of Appeals 31 October 2019

. Attorney General Joshua H. Stein, by Special Deputy Attorne y General Amy Bircher, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R. Grant, for the D efendant.

DI LLON , Judge.
One of the most fundamental concepts in criminal law is mens rea , the guilty mind. Historically, our society punished people for committing a crime for committing certain acts if they had some intent to commit the act

. Over time, this mens rea requirement has loosened . W e have seen the rise of strict liability crimes , crimes that do no t have an intent element

. One class of crimes where strict liability has flourished is so

- called regulatory crimes, meaning criminalS TATE V
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- offenses that have no common law analogue and are enacted to encourage behavior that advances the public welfare. This case involves several of these regulatory crimes. The General Assembly enacted legislation authorizing the Marine Fisheries Commission and its Director to regulate coastal fishing

. The legislature also provided that any violation of a Commission rule was a misdemeanor criminal offense

. Pursuant to its authority, the Commission enacted rules prohibiting fisherman from leaving gill nets and crab pots unattended for a certain amount of time. Defendant Michael Waterfield , a fisherman, was convicted of vi olating these regulations after he left gill nets and crab pots unattended for too long. Defendant argued that he is not criminal ly liable because he lacked any mens rea
– or intent

– to break the Commission rule. He claims he was sick and had to leave his equipment. As explained below, Defendant has presented a series of compelling arguments for why the proliferation of these strict liability crimes undermines foundational principles of our State’s criminal law jurisprudence. But as an intermediate app ellate court, we are bound to follow controlling precedent

. Under t hat precedent, these offenses are strict liability crimes that do not require the State to prove intent

. If th e law concerning these sorts of strict liability regulatory offenses should b e changed, that change must come from our Supreme Court or from our General Assembly.S TATE V
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- I. Facts and Procedural History Defendant is a licensed commercial fisherman. In late 2016, a M arine Patrol

o fficer was on boat patrol and came across an unattended gil l net

. The officer identified the net as belonging to Defendant because it had his name and boat number on it. A marine fisheries p roclamation in effect at the time require d a person operating this type of gill net to remain within 100 yards of the net. The o fficer observed the area but did not see anyone in the vicinity of the net

. Somewhere between thirty minutes and one hour later, Defendant approached the officer and asked why the officer was near his net. The o fficer t hen gave Defendant a citation for an unattended gill net. An hour later , the officer found crab pots with markers identifying them as belonging to Defendant

. The o fficer pulled up one of the pots and saw that there were dead and decomposing crabs inside. Several days later, the o ffic er returned Defendant ’s crab pots to the water with plastic tags on the pots so that they could not be opened without cutting the tags off. The officer returned to check on the pots seven days later and found that all the tags were still in place , indicat ing that the crab pots had not been fished. The officer cited Defendant for two violations of marine fisheries regulations :

one for leaving crab pots in the water for more than five consecutive days and anotherS TATE V
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- for leaving crab pots containing edible spe cies not fit for human consumption. The officer used a form citation for these offenses , a form that contained language that Defendant was being charged with committing these regulatory violations “unlawfully and willfully.” Defendant was convicted of all charges in district court and appealed to superior court. During his jury trial in superior court, Defendant explained that, as for the unattended gill net, he was struggling with throat cancer and , after setting out his nets, he got sick and had t o go home. He further explained that he got into an automobile accident on the way home. As a result of th ese unfortunate events, Defendant was unable to return and retrieve one of his nets. As for the crab pots, Defendant testified that he did fish thos e pots and that he “cut the tags off

, ” despite the officer’s testimony to the contrary. On cross

examination, Defendant acknowledged that he had a number of past violations for similar failures to retrieve gills nets or crab pots. He explained that, give n the scope of marine fisheries regulations, “[i]f you go out and fish, you gonna get tickets.” Because there we re no pattern instructions for the se regulatory offenses, t he trial court proposed to instruct the jury on the elements of the offenses by track ing the specific language in the applicable regulations or proclamations. The regulations did not include any intent element. Defendant did not object or request any additional instructions.S TATE V
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- After closing arguments, the trial court asked Defendant ’s counsel, “is there a contention that the law is something different than what has been provided to the Court?” Defense counsel responded that he was “just arguing the charging document ,” which presumably was a reference to the use of the phrase “unlawfull y and willfully” in the citation. The trial court then stated, “What I’ve been provided, I guess, from the law is the elements of the crime do not require willfulness.” The trial court then instructed the jury using the language of the applicable provisi ons and did not instruct the jury that these criminal offenses required proof of any form of criminal intent

. The jury convicted Defendant of the unattended gill net offense and the offense of leaving crab pots in the water for more than five days

. The ju ry acquitted him of the second crab pot violation. The trial court consolidated the two convictions for judgment and sentenced Defendant to 20 days in jail, suspended for one year of supervised probation , and a $200 fine. Defendant appealed. II. Analysis A. Strict liability for the charged offenses Defendant first argues that the trial court committed plain error by failing to instruct the jury that the State must prove his violations were willful

. He contendsS TATE V
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- that the offenses with which he was charged must include some form of mens rea and cannot be strict liability offenses. Defendant concedes that these arguments were not preserved by request or objection at trial and thus we review only for plain error. N.C. R. App. P. 10(a)(4); State v. Gregory , 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). “For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial.” State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

. Plain error should be “applied cautiously and only in the exceptional case” where the error s “seriously affect the fairness, integrity or public reputation of judicial proceedings.” Id. at 516

- 1 7, 723 S.E.2d at 333. Whether a particular off ense is a strict liability offense is a question of law that this Court reviews de novo

. See State v. Watterson , 198 N.C. App. 500, 50 3 , 679 S.E.2d 897, 899 (2009)

. As a leading criminal law treatise observes, “[f] or several centuries (at least since 1600) the different common law crimes have been so defined as to require, for guilt, that the defendant ’ s acts or omissions be accompanied by one or more of the various types of fault (intention, knowledge, recklessness or

— more rarely

— negligence); a person is not guilty of a common law crime without one of these kinds of fault .” 1 Wayne R. La F ave, Substantive Criminal Law § 5.5 , Strict Liability ( 3d ed. 2017 )

. “But legislatures, especially in the 20th and 21st centuries, have often undertaken to impose criminal liability for conduct unaccompanied by fault.” Id.S TATE V
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- Our General Assembly is among the state legislatures that began imposing strict liability over the last century

- and

- a - half. When challenges to these strict liability crimes arrived at our Suprem e Court, th at Court held that it is “ within the power of the Legislature to declare an act criminal irrespective of the intent of the doer of the act. The doing of the act expressly inhibited by the statute constitutes the crime. ” State v. Hales , 256 N.C. 27, 30, 122 S.E.2d 768, 771 (1961). T he determination of whether “ criminal intent is a necessary element of a statutory offense is a matter of construction to be determined from the language of the statute in view of its manifest purpose and design

. ” Id

. Our Supreme Court later refined these principles in the context of what are often called “public welfare” crimes. See Watson Seafood & Poultry Co. v. George W. Thomas, Inc. , 289 N.C. 7, 13, 220 S.E.2d 536, 541 (1975). In Watson , the Court addressed a traffic law prohibiting passing another vehicle at a railway crossing or highway intersection. Id. The Court explained that “ it is not a violation of due process to punish a person for certain crimes related to the public welfare or safety even when t he person is without knowledge of the facts making the act criminal. This is particularly so when the controlling statute does not require the act to have been done knowingly or willfully.” Id. at 14, 220 S.E.2d at 541

- 42 (citations omitted). The Court focused on several aspects of the traffic law that supported a strict

liability interpretation. First, the Court noted that the General Assembly did notS TATE V
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- include an express intent element, such as the words “knowingly” or “willfully” often found in criminal statutes. Id. at 15, 220 S.E.2d at 542. Second, the Court observed that the law was a “safety statute enacted by the Legislature for the public’s common safety and welfare

. ” Id. The Court also explained that the offense fell into a category for which the punishment is typically “a small fine

. ” Id. Finally, the Court noted that proving “ intent or guilty knowledge would make it impossible to enforce such laws in view of the tremendous number of petty offenses growing out of the host of
motor vehicles upon our roads .” Id. at 14, 220 S.E.2d at 542. Cases from this Court have applied the Watson reasoning to many different “public welfare” offenses, including offenses related to conservation of wildlife. See , e.g. , State v. Ballance , 218 N.C. App. 202, 217, 720 S.E.2d 856, 867 (2012). Applying th at precedent here , i f the offenses with which Defendant was charged were contained entirely within our General Statutes, we c ould readily hold that these are strict liability crimes

. The State charged Defendant with violating a marine fisheries proclamation prohibiting “ unattended gill nets with a stretched mesh length of 3 inches through 3 3⁄4 inches” and a marine fisheries regulation making it “ unlawful to leave pots in any coastal fishing waters for mo re than five consecutive days, when such pots are not being employed in fishing operations, except upon a timely and sufficient showing of hardship.” See 15 A NCAC 3I .0105(b); Proclamation M

- 23

- 2016.S TATE V
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- These offenses are public welfare laws designed to protect our marine fisheries; they carry minimum punishments, in most cases resulting only in a fine; they are the type of routine, minor offense that could prove impossible to enforce if the State had
to gather evidence of intent; and, most importantly, the General Assembly easily could have included an intent element for these offenses but did not do so. All of these factors weigh strongly in favor of strict liability. But this case is not so simple. He re, our General Assembly did not enact a self

contained criminal law

— it enacted legislation authorizing the Marine Fisheries Commission to regulate coastal fishing and then provided that violations of Commission regulations could be punished as a low

- level misdemeanor. N.C. Gen. Stat. §§ 113

- 182 ; 113

- 135 (2016)

. The legislature also permitted the Commission to delegate to the Fisheries Director the authority to issue proclamations that are, in effect, Commission regulations. N.C. Gen. Stat. § 113

- 221.1

. As a result of this statutory delegation, the General Assembly could not know what particular conduct would be criminalized by this statute; that depends on what the Marine Fisheries Commission and its director choose to regulate. Defendant contends that this is the fatal flaw in the State’s case. He asserts that there “is nothing in the context of the enabling statutes which suggests it was the ‘manifest purpose and design’ of the General Assembly” to impose strict liability. After all, the General Asse mbly did not even know what rules might one day beS TATE V
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- created under this delegation of authority. But, to be fair, the so - called enabling statute

— the one delegating this regulatory authority to the Commission

— is not the key place to look. The operative
statu te is N.C. Gen. Stat. § 113

- 135 , which criminalizes the conduct at issue : “ Any person who violates any provision of this Subchapter or any rule adopted by the Marine Fisheries Commission or the Wildlife Resources Commission, as appropriate, pursuant to th e authority of this Subchapter, is guilty of a misdemeanor

. . . . ” N.C. Gen. Stat. § 113

- 135(a). The General Assembly could have included an intent element in this criminal provision. For example, the legislature could have imposed criminal liability on any person who willfully violates the Commission’s rules. Or the legislature could have established a default mens rea , for example by stating that if a rule does not provide a different level of intent, the defendant must be shown to have acted willfull y to establish a violation of the rule

. These examples are not abstract ideas

— as the parties point out in their briefing, the General Assembly has contemplated this sort of legislation before. Indeed, one proposed bill was entitled “An act to make changes to future criminal laws related to regulatory offenses . . . that do not speci fy criminal culpability” and would have created a default mens rea of recklessness for regulatory crimes like the ones at issue in this case

. See H.B. 1010 § 2, 2019 Session (filed 25 April 2019). ThatS TATE V
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- the legislature has so many means to include an intent element in these criminal offense s , but still chose not to do so, weighs in favor of concluding these are stric t liability offenses. Moreover, other accompanying statutes support an interpretation that does not include an intent element. For example, the statute authorizing the Fisheries Director to issue proclamations states that “ persons who may be affected by
p roclamations issued by the Fisheries Director are under a duty to keep themselves informed of current proclamations” and it is “no defense in any criminal prosecution for the defendant to show that the defendant in fact received no notice of a particular
p roclamation.” N.C. Gen. Stat. § 113

- 221.1(c). T his statutory language demonstrates that the General Assembly contemplated the proof that would be requi red in criminal prosecutions of these regulations

. Al though the legislature chose to address certain i ssues, such as the obligation to know the law, it chose not to enact an intent element. Moreover , there is n othing particularly unusual about th e General Assembly’s decision not to include an intent element for these offenses. T hese regulatory offenses have no common law analogue; they are designed to cultivate and conserve our State’s marine resources

. These types of “public welfare” offenses often do not include an intent element. This is because a violation of these offenses “ impairs the efficiency of controls deemed essential to the social order as presently constituted.” Morissette v. United States , 342 U.S. 246, 256 (1952). With the rise of the administrative state andS TATE V
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- corresponding regulatory regimes, c ourts across our nation began construing t hese regulatory crimes “ which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime .” Id. Equally important , violations of the Marine Fisheries Commission regulations and proclamations are minor criminal offenses

— low

- level misdemeanors that will typically result in a fine and will lead to an active sentence only in exceedingly rare cases for defendants with many prior convictions

. N.C. Gen. Stat. § 113

- 135

. Finally, these offenses fall within the categor y of regulatory crimes for which an intent element could “ make it impossible to enforce such laws in view of the tremendous number of petty offenses

. ” See Watson , 289 N.C. at 1 4 , 220 S.E.2d at 54 2

. Requiring the State to launch an investigation into every person who unlawfully leaves a crab pot or gill net unattended and to gather sufficient evidence to prove beyond a reasonable doubt that the violation w as willful could render enforcement of these minor offenses impractical for the State. This, too, is a key factor in why our Supreme Court and other courts have interpreted the lack of an express intent element in these regulatory crimes as evidence of an intent to impose strict liability. Id. ; see also Morissette , 342 U.S. at 256. In sum, we hold that the criminal offenses charged in this case under N.C. Gen. Stat. § 113

- 135 are strict liability regulatory offenses that do not require the State to prove intent. But we note that our h olding is no t an endorsement of these strictS TATE V
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- liability c rimes. Defendant ’s appellate brief lays out in compelling detail why our State’s criminal laws historically have required an intent element, and why the ever

expanding morass of regulatory crimes is undermining the fundamental notion that

mens rea is a ne cessary component of our State’s criminal jurisprudence. But we “lack the authority to change the law on the ground that it might make good policy sense to do so.” Fagundes v. Ammons Dev. Grp., Inc. , 251 N.C. App. 735, 739, 796 S.E.2d 529, 533 (2017). B. Failure to instruct o n willfulness Defendant next argues that, even if the charged offenses are strict liability crimes, the State was required to prove willfulness in this case because the indictment alleged that Defendant acted willfully. Again, Def endant concedes that he did not raise this argument in the trial court . W e therefore review for plain error. There is logical appeal to Defendant ’s argument

— after all, if the State charges a defendant with willfully violating a regulation, should the Sta te not be required to prove that charge? But we are again constrained by controlling precedent. What happened in this case has happened before. In State v. Clowers , the State charged the defendant with willfully driving while impaired because “ the charg ing officer did not cross out the word ‘ willfully ’ on the uniform citation ” although, as in this case, “willfulness is not an element of the crime.” 217 N.C. App. 520, 529, 720 S.E.2d 430, 437 (2011). T he defendant presented a defense based on the State’s failure to proveS TATE V
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- willfulness and requested a jury instruction on willfulness. T he trial court denied that request because willfulness wa s not an essential element of the charged offense. This Court found no error i n Clowers , holding that “the inclusion of ‘willfully’ was beyond the essential elements of the offense” and thus the trial court properly disregarded it as “ surplusage.” Id. at 529

- 30, 720 S.E.2d at 43 7

. The Court further explained that the trial court c ould not have instructed the jury on willfulness because the trial court’s duty is to instruct the jury on the law and “ that instruction would not have been supported by law .” Id. The facts in Clowers are indistinguishable from those in this case. We are therefore constrained to reject this argument. In re Civil Penalty , 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). Accordingly, we find no error in the trial court’s instructions to the jury. III. Conclusion We find no error in the trial court’s judgments

. NO ERROR

. Judge s D IETZ and YOUNG concur.