State v. Barr

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2014
• Docket: 13-1461
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1461 NORTH CAROLINA COURT OF APPEALS Filed: 17 June 2014 STATE OF NORTH CAROLINA

McDowell County v. No. 12 CRS 1514

BARBARA ANN BARR

Appeal by defendant from judgment entered 28 June 2013 by

Judge Gary Gavenus in McDowell County Superior Court. Heard in

the Court of Appeals 23 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General Benjamin J. Kull, for the State.

Gilda C. Rodriguez for Defendant.

ERVIN, Judge.

Defendant Barbara Ann Barr appeals from a judgment

sentencing her to a term of 45 days imprisonment and ordering

her to pay a fine and the costs based upon her conviction for

misdemeanor larceny. On appeal, Defendant contends that the

trial court erred by rejecting the plea agreement that she had

reached with the State without providing any explanation for its

decision to act in that manner and that Defendant was provided

ineffective assistance of counsel as the result of her trial -2- counsel’s failure to assert her right to obtain an explanation

of the trial court’s decision to reject the negotiated plea and

to have her case continued following the rejection of her guilty

plea. After careful consideration of Defendant’s challenges to

the trial court’s judgment in light of the record and the

applicable law, we conclude that the trial court’s judgment

should be vacated given that the criminal pleading upon which

the trial court’s judgment rests was fatally defective.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

On the afternoon of 24 October 2012, Defendant entered a

Walmart store in Marion, North Carolina, along with a male adult

and a young child. Brandy Bartlett, who worked as a loss

protection assistant at the store, initially noticed Defendant

because she was carrying a large pocketbook and an empty diaper

bag and was engaging in behavior that suggested that she might

be involved in unlawful conduct. After making this initial

observation, Ms. Bartlett continued to watch Defendant closely

and even came within a few feet of her.

While she watched Defendant, Ms. Bartlett noticed that

Defendant had put a pack of highlighters and an iPhone case in

her shopping cart. In addition, Ms. Bartlett noticed that the -3- adult male who was accompanying Defendant had picked up a camera

and placed it in the diaper bag. Subsequently, Defendant took

the child, along with the diaper bag, into a restroom, where the

two of them remained for approximately five minutes.

After Defendant exited the restroom, she handed the child

to her male companion, went to a different aisle, and picked up

a set of artificial toenails. Eventually, Ms. Bartlett observed

Defendant place the artificial toenails, iPhone case, and

highlighters into her pocketbook and walk to the cash register.

At that point, Defendant’s male companion left the store with

the diaper bag and child while Defendant paid for other items

that she had taken into her possession during her time in the

store.

After paying for these additional items, Defendant walked

through the first set of doors leading to the exterior of the

store building, where she encountered Ms. Bartlett, who told

Defendant what she had observed. After Defendant denied having

engaged in any misconduct, Ms. Bartlett stated that she was

aware that Defendant had items in her purse for which she had

not paid, that she had no desire to embarrass Defendant, and

that Defendant should accompany her to the store office. At

that point, Defendant did as Ms. Bartlett had requested. -4- After Defendant and Ms. Bartlett reached the office, Ms.

Bartlett, in the presence of her assistant manager, told

Defendant that she needed to remove the items that she had taken

from the store without making payment from her pocketbook. At

that point, Defendant produced the highlighters, the iPhone

case, and the artificial toenails while claiming that she had

gotten the toenails from a Family Dollar store at an earlier

time. After Defendant stated that she did not have

identification, Ms. Bartlett told Defendant that she was

required to call the police.

Sergeant Mike Hensley of the Marion Police Department

arrived at the Walmart store at approximately 4:30 p.m.

Although Sergeant Hensley saw the items that Defendant had

removed from her pocketbook, he did not search or interview

Defendant. After Ms. Bartlett created a receipt indicating the

total value of the items in question and confirmed that the

items were included in the Walmart store’s inventory, Sergeant

Hensley took a copy of the receipt and cited Defendant for

misdemeanor larceny.

2. Defendant’s Evidence

Defendant went to the Marion Walmart store on 24 October

2012 with her boyfriend, Shannon Mosteller, and her youngest

child. The highlighters, phone case, and artificial toenails -5- were in her possession at the time of her arrival given that she

had purchased them on the preceding evening and planned to

return the phone case and the artificial toenails. However,

after arriving at the store, Defendant decided to keep these

items and, instead, purchased groceries and a toy truck.

As she was leaving the store, Defendant was stopped by Ms.

Bartlett, who identified herself as a Walmart employee and told

Defendant, without providing any further explanation, that she

needed to accompany Ms. Bartlett to the office. As the two

women re-entered the store, Sergeant Hensley joined them.

Subsequently, Corporal D.J. Barrier of the Marion Police

Department arrived at the Walmart store as well.

After reaching the office, Ms. Bartlett asked Defendant to

hand her the camera that she claimed to have seen Defendant take

into the restroom. After Corporal Barrier brought Mr. Mosteller

inside the office and asked him about the camera, Mr. Mosteller

stated that, while he and Defendant had picked up a camera, they

had returned it to the display shelf, showed the officers where

he had placed the camera, and consented to a visual inspection

of his vehicle, which did not result in the discovery of any

stolen property.

Although she initially declined to allow the officers to

search her pocketbook, Defendant eventually consented to such an -6- examination after Sergeant Hensley stated that she could be

charged criminally if she maintained her initial position with

respect to that issue. As the search proceeded, Ms. Bartlett

pointed out the highlighters, phone case, and artificial

toenails, which she had not mentioned until that point. After

Ms. Bartlett indicated that the items had been stolen, Sergeant

Hensley cited Defendant for misdemeanor larceny.

B. Procedural History

On 24 October 2012, Defendant was issued a citation

purporting to charge her with misdemeanor larceny. On 20 May

2013, Defendant entered a plea of guilty in the McDowell County

District Court. In light of Defendant’s guilty plea, the

District Court entered a judgment sentencing Defendant to a term

of 45 days imprisonment and then suspended that sentence and

placed Defendant on unsupervised probation for a period of

twelve months on the condition that Defendant comply with the

usual terms of probation, pay the costs, and complete 24 hours

of community service. Defendant noted an appeal to the McDowell

County Superior Court from the District Court’s judgment.

On 24 June 2013, Defendant filed a motion seeking to have

evidence concerning the items allegedly seized from her

pocketbook suppressed. The charge against Defendant came on for

trial before the trial court and a jury at the 27 June 2013 -7- criminal session of the McDowell County Superior Court. After

hearing testimony and argument concerning the issues raised by

Defendant’s suppression motion, the trial court denied

Defendant’s motion. In addition, the trial court denied

Defendant’s motion that the case be remanded to the McDowell

District Court for compliance with the District Court judgment.

After discussions with the prosecutor, Defendant’s trial

counsel informed the trial court that Defendant and the State

had reached an agreement under which Defendant would plead

guilty to misdemeanor larceny, receive a suspended sentence, and

be placed on supervised probation. The trial court, however,

rejected the proposed plea agreement without comment. After

hearing the testimony of the parties’ witnesses, the arguments

of counsel, and the trial court’s instructions, the jury

returned a verdict convicting Defendant of misdemeanor larceny.

On 28 June 2013, the trial court entered a judgment sentencing

Defendant to 45 days imprisonment and requiring Defendant to pay

a $250.00 fine and the costs. Defendant noted an appeal to this

Court from the trial court’s judgment.1

1 After the conclusion of the proceedings in the trial court, Defendant’s trial counsel informed the trial court that Defendant desired to appeal the trial court’s judgment and stated that he did not know how to do so considering that he had “never handled an appeal.” In response, the trial court indicated that Defendant had given notice of appeal based upon the statement made by her trial counsel. As a result of the -8- II. Legal Analysis

As an initial matter, we are required to determine whether

the trial court had jurisdiction to enter the judgment from

which Defendant has appealed. Although neither party has

advanced any contention with respect to this issue, well-

established North Carolina law provides that, “where an

indictment [or other criminal pleading] is alleged to be invalid

on its face, depriving the trial court of its jurisdiction, a

challenge may be made at any time.” State v. Ackerman, 144 N.C.

App. 452, 464, 551 S.E.2d 139, 147, cert. denied, 354 N.C. 221,

554 S.E.2d 344 (2001). Simply put, “‘[t]here can be no trial,

conviction, or punishment for a crime without a formal and

sufficient accusation. In the absence of an accusation the

court acquires no jurisdiction whatever, and if it assumes

jurisdiction a trial and conviction are a nullity.’” McClure v.

State, 267 N.C. 212, 215, 148 S.E.2d 15, 17-18 (1966) (quoting

42 C.J.S., Indictments and Informations § 1 (1944)). “This

Court may raise the question of subject matter jurisdiction on

its own motion, even if it was not argued by the parties in

fact that Defendant clearly indicated a desire to appeal from the trial court’s judgment orally and in open court, we concur in the trial court’s determination that Defendant had adequately noted an appeal to this Court from the trial court’s judgment and, for that reason, deny the alternative petition for the issuance of a writ of certiorari that Defendant has filed with this Court. -9- their briefs.” Ramsey v. Interstate Insurors, Inc., 89 N.C.

App. 98, 102, 365 S.E.2d 172, 175, disc. review denied, 322 N.C.

607, 370 S.E.2d 248 (1988). As a result, we must determine

whether the trial court had jurisdiction over this case before

we have the authority to address the validity of Defendant’s

challenges to the trial court’s judgment.

“A citation is a directive, issued by a law enforcement

officer or other person authorized by statute, that a person

appear in court and answer a misdemeanor or infraction charge or

charges.” N.C. Gen. Stat. § 15A-302(a). Citations “may serve

as pleadings of the State in criminal cases.” N.C. Gen. Stat. §

15A-921(1). “The purpose of a[] [charging instrument] is to

give defendant sufficient notice of the charge against him, to

enable him to prepare his defense, and to raise the bar of

double jeopardy in the event he is again brought to trial for

the same offenses.” State v. Ingram, 20 N.C. App. 464, 466, 201

S.E.2d 534, 533 (1974). As a result, a valid citation must:

(1) Identify the crime charged, including the date, and where material, identify the property and other persons involved,

(2) Contain the name and address of the person cited, or other identification if that cannot be ascertained,

(3) Identify the officer issuing the citation, and -10- (4) Cite the person to whom issued to appear in a designated court, at a designated time and date.

N.C. Gen. Stat. § 15A-302(c). In addition, every criminal

pleading, including a citation used for that purpose, must

contain “[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 or defendants of the conduct which is

the subject of the accusation.” N.C. Gen. Stat. § 15A-

924(a)(5). As a result, given that “[a]n indictment [or other

criminal pleading] is invalid and prevents the trial court from

acquiring jurisdiction over the charged offense if [it] ‘fails

to state some essential and necessary element of the offense of

which the defendant is found guilty,’” State v. McNeil, 209 N.C.

App. 654, 658, 707 S.E.2d 674, 679 (2011) (quoting State v.

Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419, disc.

review improvidently granted, 349 N.C. 289, 507 S.E.2d 38

(1998)), the citation issued against Defendant in this case

would not have sufficed to authorize the trial court to exercise

jurisdiction over this case in the event that it failed to

charge the Defendant with the commission of a misdemeanor -11- larceny in the manner required by N.C. Gen. Stat. § 15A-

924(a)(5).

“The essential elements of larceny are that the defendant:

(1) took the property of another;

(2) carried it away;

(3) without the owner’s consent; and

(4) with the intent to deprive the owner of his property permanently.”

State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982)

(citing State v. Booker, 250 N.C. 272, 273, 108 S.E.2d 426, 427

(1959) and N.C. Gen. Stat. § 14-72(a)), overruled on other

grounds in State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911,

916 (2010). Consistently with the language of N.C. Gen. Stat. §

15A-302(c)(1), which requires citations to identify “the

property” involved in the commission of a particular crime, “our

case law on larceny indictments makes clear that the property

alleged to have been taken must be identified ‘with certainty

sufficient to enable the jury to say that the article proved to

be stolen is the same.’” State v. Justice, __ N.C. App. __, __,

723 S.E.2d 798, 801 (2012) (quoting State v. Ingram, 271 N.C.

538, 541-42, 157 S.E.2d 119, 122 (1967)); see also State v.

Godet, 29 N.C. 210, 210 (1847) (holding that “[a]n indictment

for larceny must describe the article stolen with a certainty

sufficient to identify it” so as to “enable[e] the judge to see -12- upon its face that the article is of value” and to protect “the

accused” by “enabl[ing] him to show, if subsequently called into

court to answer for the offense, that he has already been

convicted or acquitted of its commission”). As a result, a

criminal pleading, including a citation, that purports to charge

the defendant with committing larceny must specify the property

that the defendant is alleged to have stolen.

The citation issued to Defendant in this case alleged that

she “did steal take and carry away with the intent to deprive

the owner of its use permanently items belonging to Wal Mart

Inc. having a value of $25.43.” As should be obvious from even

a cursory examination of the citation that was issued to

Defendant, the criminal pleading utilized in this case does not

identify the property that Defendant is alleged to have stolen.

For that reason, the charging instrument utilized in this case

did not describe the items stolen “‘with certainty sufficient to

enable the jury to say that the article proved to be stolen is

the same.’” Ingram, 271 N.C. at 541, 157 S.E.2d at 122 (quoting

State v. Caylor, 178 N.C. 807, 808, 101 S.E. 627, 628 (1919)).

As a result, given that the citation that served as the basis

for the entry of the trial court’s judgment was fatally

defective and did not suffice to provide the trial court with

jurisdiction over this case, we are required to vacate the trial -13- court’s judgment. Eg., State v. Johnson, 42 N.C. App. 234, 236-

37, 256 S.E.2d 297, 299 (1979) (citing 4 Strong’s N.C. Index

3rd, Criminal Law § 127.2, p. 665) (holding that “[t]he court

should have allowed the motion to dismiss on the grounds that

the citation failed to charge the commission of a crime” and

stating that, “[b]ecause the citation failed to charge a crime,

the judgment of the Superior Court must be . . . arrested”).2

III. Conclusion

Thus, for the reasons set forth above, we conclude that,

since the citation utilized as the criminal pleading in this

case failed to adequately charge the commission of a criminal

offense, the trial court lacked jurisdiction to enter judgment

against Defendant in this case. As a result, the trial court’s

judgment should be, and hereby is, vacated.

VACATED.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).

2 Had the defect in the citation issued in this case been identified prior to trial, the prosecutor could have addressed the problem discussed in the text of this opinion by filing a misdemeanor statement of charges as authorized by N.C. Gen. Stat. § 15A-922.