State v. Artis

• Decision Date: 06 December 2005
• Docket Number: No. COA05-269.,COA05-269.
• Citation: 622 S.E.2d 204
• Parties: STATE of North Carolina v. Gregory Requint ARTIS.
• Court: North Carolina Supreme Court

622 S.E.2d 204

STATE of North Carolina v. Gregory Requint ARTIS.

No. COA05-269.

Court of Appeals of North Carolina.

December 6, 2005.

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Appeal by defendant from judgments entered 13 October 2004 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 2 November 2005.

Attorney General Roy Cooper, by Assistant Attorney General Lorrin Freeman, for the State.

Kevin P. Bradley, Durham, for defendant-appellant.

TYSON, Judge.

Gregory Requint Artis ("defendant") appeals from judgments entered after a jury found him to be guilty of malicious conduct by a prisoner and habitual misdemeanor assault. Defendant was convicted of having attained the status of being an habitual felon. We find no error in part, vacate in part, and remand.

I. Background

Defendant, a detainee at the Pitt County Detention Center in Greenville, North Carolina, was cleaning the center's common area when he was told to return to his cell. Defendant became frustrated, clogged his toilet, and flooded his cell. To prevent further flooding, Detention Officer Steven E. McKinney, ("Officer McKinney") turned off the water in defendant's cell. Defendant told Officer McKinney that he was going to "get" him when he had the opportunity.

Later in the day, Officer McKinney served lunch to the detainees, including defendant, through a small door which meal trays were passed. A detainee assisted Officer McKinney by distributing drinks. The drinks available to the detainees included water, milk, tea, and orange juice. The State's evidence tends to show defendant forcefully threw urine through the small door at Officer McKinney before defendant received his drink. Officer McKinney testified that he could tell the liquid was urine because of its distinct smell and warm temperature. Defendant maintains he threw tea at Officer McKinney.

Officer McKinney immediately asked to be relieved of his duties to remove his clothes and clean himself. The State did not present Officer Mckinney's uniform into evidence. He testified that it was standard procedure in the Pitt County Sheriff's Department to immediately wash any uniforms stained by bodily fluids. Officer McKinney reported the incident, but he did not include the names of the inmates who had assisted him while handing out the meals, and he could not remember their names at trial. No other witnesses testified to the incident.

On 13 October 2004, defendant was tried by a jury and found to be guilty of malicious conduct by a prisoner and assault on a government employee which resulted in a conviction for habitual misdemeanor assault. Defendant was sentenced as an habitual felon to an active sentence of a minimum of 168 months and a maximum of 211 months of confinement for his conviction of malicious conduct by a prisoner, such sentence to run at the expiration of the sentence imposed in 03 CRS 58379. For the crime of misdemeanor assault, defendant was sentenced as an habitual felon to a consolidated term of imprisonment of a minimum of 151 months and a maximum of 191 months confinement, such sentence to run concurrently with the sentence imposed for defendant's habitual felon conviction of malicious conduct by a prisoner to commence at the expiration of the sentence imposed in 03 CRS 58379. Defendant appeals.

II. Issues

Defendant argues: (1) the trial court did not have jurisdiction to proceed with the trial of a charge of malicious conduct by a prisoner when the indictment did not allege that defendant was in custody; (2) the trial court cannot enter judgment for both malicious conduct by a prisoner and habitual misdemeanor assault when identical conduct was alleged to establish both malicious conduct by a prisoner and the current misdemeanor assault of a government employee; (3) the trial court cannot sentence defendant as an habitual felon without a jury's determination of habitual felon status or express waiver of jury determination and admission of habitual felon status by defendant himself; and (4) a stipulation by defense counsel that defendant had been convicted of the prior misdemeanors alleged in an indictment charging habitual misdemeanor assault is not sufficient to establish the prior conviction element of that charge without submission of that element for determination by the jury.

III. Allegations in the Indictment

Concerning the allegations in the indictment, defendant argues the trial court: (1) did not have jurisdiction to proceed with the trial of a charge of malicious conduct by a prisoner when the indictment did not allege that defendant was in custody; and (2) cannot enter judgment for both malicious conduct by a prisoner and habitual misdemeanor assault when identical conduct was alleged to establish both malicious conduct by a prisoner and the current misdemeanor assault of a government employee.

A. Defendant's Custody

Defendant argues the indictment did not specifically allege he was in custody and is facially invalid. We disagree.

Defendant did not object to the trial court's jurisdiction at trial. N.C. Gen.Stat. § 15A-1446(d)(4) (2003) provides:

(d) Errors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.

. . . .

(4) The pleading fails to state essential elements of an alleged violation, as required by G.S. 15A-924(a)(5).

In State v. Wallace, our Supreme Court held "where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court." 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 121 S.Ct. 581, 148 L.Ed.2d 498 (2000).

The indictment charging defendant with malicious conduct by a prisoner and habitual misdemeanor assault failed to specifically allege defendant was "in custody." The indictment stated, "[a]t the time of the assault S.E. McKinney was performing a duty of his office by supervising the dispensing of food to the defendant." Defendant argues because the indictment failed to specifically allege he was "in custody," "the trial court lacks jurisdiction over the defendant and subsequent judgments are void and must be vacated." State v. Ellis, 168 N.C.App. 651, 655, 608 S.E.2d 803, 806 (2005) (citing State v. Wagner, 356 N.C. 599, 601, 572 S.E.2d 777, 779 (2002)).

Article I, Section 23 of the North Carolina Constitution provides, "In all criminal prosecutions, every person charged with a crime has the right to be informed of the accusation." N.C. Const. Art. I, § 23. Therefore, "[a] criminal proceeding must contain . . . (5)[a] plain and concise factual statement. . . which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense . . . 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) (2003).

In order to convict defendant of malicious conduct by a prisoner, the State must prove defendant, while in custody, threw bodily fluid at a government employee while the employee was engaged in employment responsibilities. N.C. Gen.Stat. § 14-258.4(a) (2003). N.C. Gen.Stat. § 14-258.4(a) provides:

Any person in the custody of the Department of Correction, the Department of Juvenile Justice and Delinquency Prevention, any law enforcement officer, or any local confinement facility (as defined in G.S. 153A-217, or G.S. 153A-230.1), including persons pending trial, appellate review, or presentence diagnostic evaluation, who knowingly and willfully throws, emits, or causes to be used as a projectile, bodily fluids or excrement at a person who is an employee of the State or a local government while the employee is in the performance of the employee's duties is guilty of a Class F felony. The provisions of this section apply to violations committed inside or outside of the prison, jail, detention center, or other confinement facility.

In State v. Page, this Court stated, "[t]he requirements of G.S. 15-153 are met where the indictment sets forth in a plain, intelligible and explicit manner all elements of the crime charged." 32 N.C.App. 478, 481, 232 S.E.2d 460, 462 (citing State v. Hunt, 265 N.C. 714, 144 S.E.2d 890 (1965)), cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977). "An indictment is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense." State v. Lowe, 295 N.C. 596, 603, 247 S.E.2d 878, 883 (1978).

This Court stated:

A criminal pleading does not have to state every element of the offense charged; it is only necessary to assert 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."

State v. Jordan, 75 N.C.App. 637, 639, 331 S.E.2d 232, 233 (quoting N.C. Gen.Stat. § 15A-924(a)(5)), disc. rev. denied, 314 N.C. 544, 335 S.E.2d 23 (1985).

In Jordan, the defendant was charged with failing to stop at the scene of an accident. Id. The defendant argued that the order upon which he was tried was defective because it failed to allege that he knew his car had collided with another car and damaged it. Id. This Court held that the defendant's knowledge could be inferred from the facts. Id.

Here, the indictment alleged malicious conduct by a prisoner. The purpose behind alleging that defendant was in custody is to give him proper notice of the charges against him. The evidence tended to show that defendant, an inmate at the Pitt County Detention Center, was incarcerated when he received notice of the charges, and raised no objection that he was unaware...