State v. Williams
| Decision Date | 17 September 2002 |
| Docket Number | No. COA01-1400.,COA01-1400. |
| Citation | 568 S.E.2d 890,153 NC App. 192 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Chris WILLIAMS. |
Attorney General Roy Cooper, by Assistant Attorney General Mary Penny Thompson, for the State/Appellee.
Paul Pooley, Durham, for Defendant/Appellant.
Chris Williams ("defendant") appeals from a judgment entered after a jury convicted him of assault on a female and felonious habitual misdemeanor assault. We vacate defendant's conviction of felonious habitual misdemeanor assault because a special accompanying indictment was required and not rendered. We remand for entry of judgment on defendant's conviction of assault on a female.
The State's evidence tended to show that on 28 July 2000, defendant appeared at the home of Jennifer Bacon at 9:00 a.m. He knocked at her door and asked for a cigarette. Ms. Bacon knew defendant as she often saw him at the local Citgo convenience store where she would speak to him and give him cigarettes or spare change. Ms. Bacon agreed to give defendant a cigarette.
While Ms. Bacon went to get a cigarette, defendant stepped into her home. According to Ms. Bacon, defendant proposed that he and Ms. Bacon engage in sexual intercourse. Ms. Bacon testified that defendant then assaulted her by wrapping his arms around her, kissing her cheek and grabbing her buttocks. Defendant testified and denied these allegations stating that he did not have the chance to do anything because Ms. Bacon shoved him out the door.
Ms. Bacon reported the incident to the police later that day, and defendant was questioned. Defendant was indicted on 16 October 2000, and a warrant for his arrest was issued the same day.
A bifurcated trial was held for the State to initially prove the crime of assault on a female and subsequently to prove the felony of habitual misdemeanor assault. While giving the jury a summary of the case before the trial for assault on a female, the judge characterized the charge as "feloniously assaulting Jennifer Bacon, a female, by kissing her on the cheek and grabbing her by the buttocks against her will, he then [a] male being over 18." At the close of evidence, the court instructed the jury on the elements of assault on a female. The jury rendered a guilty verdict.
The trial then moved to the felony of habitual misdemeanor assault phase. An assistant county clerk of court testified that defendant had been convicted of second degree trespass and resisting arrest on 13 March 1997 as well as assault on a government official on 15 October 1992. She further attested to defendant's guilty pleas of (1) disorderly conduct on 27 May 1993, (2) second degree trespass on 11 January 1994, and (3) simple assault on 18 June 1992. A probation officer's testimony connected defendant to the certified judgments already in evidence. The court instructed the jury on the felony of habitual misdemeanor assault. The jury returned a verdict of guilty on that charge. Defendant appeals.
Defendant assigns as error that the trial court: (1) lacked jurisdiction to sentence defendant for felonious habitual misdemeanor assault where the indictment only charged assault on a female and (2) erred under N.C.G.S. § 15A-1213 in describing the offense with which defendant was charged as "felonious assault".
Defendant contends that the trial court lacked jurisdiction to sentence him for the felony of habitual misdemeanor assault where the indictment only charged assault on a female. Defendant argues that this discrepancy makes the indictment invalid, and that an invalid indictment robs the trial court of jurisdiction.
A valid indictment is a predicate for jurisdiction. State v. McBane, 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969). It is generally prejudicial error for a trial judge to permit a jury to convict on a theory not supported by the bill of indictment. State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980). An indictment is insufficient if it does not accurately and clearly allege all the essential elements of the charged offense. State v. Perry, 291 N.C. 586, 592, 231 S.E.2d 262, 266 (1977) (citations omitted).
We hold that the indictment was insufficient to charge defendant with the felony of habitual misdemeanor assault. N.C.G.S. § 15A-928(b)(2001) requires a "special accompanying indictment" for a charge which requires conviction on a lesser charge unless the prosecutor incorporates a separate count into the principal indictment. See State v. Sullivan, 111 N.C.App. 441, 442-44, 432 S.E.2d 376, 377-78 (1993)
. The absence of any indictment alleging violation of N.C.G.S. § 14-33.2, habitual misdemeanor assault, renders the principal indictment in this case one which charged defendant with only the misdemeanor of assault on a female. Without a valid indictment, there was no jurisdiction for the felony charge.
The issue of a variance between the indictment and proof is properly raised by a motion to dismiss. State v. Baldwin, 117 N.C.App. 713, 717, 453 S.E.2d 193, 195, cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995) (citing State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971)). Defendant failed to move to dismiss. Assignments of error for appellate review must be preserved at trial. N.C.R.App. P. 10(b)(1). At bar, the felony conviction fails not because of a mistake in citation causing a variance between the proof and indictment, but rather because of the lack of a substantive element of the State's prima facie case for the felony of habitual misdemeanor assault. " `When the record shows a lack of jurisdiction in the lower court, the appropriate action on the part of the appellate court is to arrest judgment or vacate any order entered without authority.' " State v. Petersilie, 334 N.C. 169, 175-76, 432 S.E.2d 832, 836 (1993) (quoting State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981)). The indictment sufficiently charged defendant with assault on a female but not with the felony of habitual misdemeanor assault.
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