IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-708
Filed: 19 April 2016
Surry County, Nos. 13 CRS 651–52, 13 CRS 52914
STATE OF NORTH CAROLINA
v.
JUAN FITZGERALD ALLEN
Appeal by defendant from judgments entered 23 January 2015 by Judge R.
Stuart Albright in Surry County Superior Court. Heard in the Court of Appeals 17
November 2015.
Attorney General Roy Cooper, by Assistant Attorney General Tamika L.
Henderson, for the State.
Appellate Defender Staples Hughes, by James R. Grant, for defendant-
appellant.
BRYANT, Judge.
Where defendant was tried without objection and convicted on a misdemeanor
citation in district court, appealed the conviction for a trial de novo in superior court
and was convicted by jury on the same misdemeanor citation, again without objection
to the citation, defendant’s challenge to the jurisdiction of the trial court is without
merit.
On 27 July 2013, defendant Juan Fitzgerald Allen was issued North Carolina
Uniform Citations charging him with willfully operating a motor vehicle on a street
or highway/public vehicular area (1) while subject to an impairing substance, (2)
STATE V. ALLEN
Opinion of the Court
while his drivers’ license was revoked, (3) while displaying an expired registration
plate knowing the same to be expired, (4) without having a current electronic
inspection, such vehicle requiring such an inspection, and (5) for transporting an open
container of fortified wine or spirituous liquor. Defendant submitted to a chemical
analysis of his breath approximately one hour after his arrest and registered a 0.23
blood alcohol level. The record indicates that a bench trial was held in Surry County
District Court followed by a trial de novo commenced on 21 January 2015, during the
criminal session in Surry County Superior Court, the Honorable Stuart Albright,
Judge presiding.
During a pre-trial conference in superior court, the State made an
unchallenged oral motion before the trial court to join for trial the charges of
transporting fortified wine or spirituous liquor without being in an unopened original
container, driving while impaired, and driving while license revoked. The State took
a voluntary dismissal on charges of driving with an expired registration and no
vehicle inspection. The matter proceeded to trial before a jury.
Following the presentation of all evidence and the trial court’s instruction to
the jury, the jury returned guilty verdicts against defendant for impaired driving,
driving a motor vehicle on a highway while his driver’s license was revoked, and
transporting within the passenger area of a motor vehicle spirituous liquor in other
than the manufacturer’s unopened original container. The jury further found as an
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Opinion of the Court
aggravating factor that “[a]t the time of the offense, . . . defendant’s license was
revoked because of impaired driving.” Based on the jury’s finding of the aggravating
factor, the trial court arrested judgment on the offense of driving a motor vehicle on
a highway while his driver’s license was revoked. In accordance with the remaining
jury verdicts, the trial court entered judgment against defendant for the offense of
impaired driving and sentenced him to an active term of two years. Judgment was
entered against defendant for transporting an open container of spirituous liquor, for
which he was sentenced to an active term of twenty days, to be served concurrent
with his DWI sentence. Defendant entered written notice of appeal.
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On appeal, defendant argues the trial court lacked jurisdiction to try him for
transporting an open container of spirituous liquor, a misdemeanor, when the
charging citation failed to allege an essential element of that offense. Specifically,
defendant contends that the charging citation was fatally defective as it failed to
allege that the open container was transported in the passenger area of defendant’s
vehicle. We disagree.
“There 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) (citations
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Opinion of the Court
and quotation marks omitted). “[A] citation . . . serves as the pleading of the State
for a misdemeanor prosecuted in the district court, unless the prosecutor files a
statement of charges, or there is objection to trial on a citation.” N.C. Gen. Stat. §
15A-922(a) (2015). “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.” Id. § 15A-302(a) (2015). “The citation
must: (1) [i]dentify the crime charged, including the date, and where material,
identify the property and other persons involved[.]” Id. § 15A-302(c).
Initially, we note that a defendant may object to a trial on a citation; “[a]
defendant charged in a citation with a criminal offense may by appropriate motion
require that the offense be charged in a new pleading.” Id. § 15A-922(c). However,
this Court has held that a defendant may not challenge the derivative jurisdiction of
the superior court to try a misdemeanor offense on a citation, where that challenge
was not raised before the district court. See State v. Phillips, 149 N.C. App. 310, 318,
560 S.E.2d 852, 857 (2002) (“[A] defendant's objection to trial by citation must be
asserted in the court of original jurisdiction, in this case, the district court. See State
v. Monroe, 57 N.C. App. 597, 599, 292 S.E.2d 21, 22 (1982) . . . . Thus, . . . ‘[o]nce
jurisdiction had been established and [the] defendant had been tried in district court,
. . . he was no longer in a position to assert his statutory right to object to trial on
citation when he appealed to superior court.’ Id.”).
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Opinion of the Court
Defendant appeals from the conviction by jury of a misdemeanor allowed by
his de novo appeal to superior court. “[T]he superior court has jurisdiction to try a
misdemeanor . . . [w]hen a misdemeanor conviction is appealed to the superior court
for trial de novo . . . .” N.C. Gen. Stat. § 7A-271(a)(5) (2015). The record does not
indicate that defendant—tried and convicted in district court before his appeal to
superior court for a trial de novo—challenged the charges in the citation during
proceedings in the district court, or the superior court. Now before this Court,
defendant raises this challenge to the jurisdiction of the trial courts for the first time.
We acknowledge defendant is allowed to challenge jurisdiction for the first time on
appeal. See N.C. R. App. P. 10(a)(1) (2015) (“[W]hether the court had jurisdiction over
the subject matter, and whether a criminal charge is sufficient in law, may be made
the basis of an issue presented on appeal.”). However, the ability to raise a
jurisdictional challenge at any time does not ensure that the jurisdictional challenge
has merit.
Defendant argues that “[a] citation, like a warrant or an indictment, may serve
as a pleading in a criminal case and must therefore allege lucidly and accurately all
the essential elements of the [crime] . . . charged.” However, defendant fails to direct
our attention to any opinion from this Court or other authority equating the
requirements for a valid citation with those of a valid indictment, and we find none.
Compare id. § 15A-302(c) (“The citation must: (1) Identify the crime charged,
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Opinion of the Court
including the date, and where material, identify the property and other persons
involved[.]”), with id. § 15A-644(a)(3) (“An indictment must contain: . . . (3) Criminal
charges pleaded as provided in Article 49 of [Chapter 15A], Pleadings and Joinder[.]”);
see also State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003) (“An indictment,
as referred to in [N.C. Const. art. I, § 22] . . . , is a written accusation of a crime drawn
up by the public prosecuting attorney and submitted to the grand jury, and by them
found and presented on oath or affirmation as a true bill. To be sufficient under our
Constitution, an indictment must allege lucidly and accurately all the essential
elements of the offense endeavored to be charged.” (citation and quotation marks
omitted)); State v. Jones, 157 N.C. App. 472, 477, 579 S.E.2d 408, 411 (2003) (“[A]
citation is not an indictment[.]”).
On 27 July 2013, defendant was issued a Uniform Citation by a law
enforcement officer with the Mt. Airy Police Department: “Defendant did unlawfully
and willfully operate a (motor) vehicle on a (street or highway) (public vehicular area)
transport open container of fortified wine/spirituous liquor unopened original
container G.S. 18B-401(a).” Section 401 of General Statutes Chapter 18B
(“Regulation of Alcoholic Beverages”) states that “[i]t shall be unlawful for a person
to transport fortified wine or spirituous liquor in the passenger area of a motor vehicle
in other than the manufacturer's unopened original container. . . . Violation of this
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Opinion of the Court
subsection shall constitute a Class 3 misdemeanor.” N.C. Gen. Stat. § 18B-401(a)
(2015).
Defendant argues that the citation failed to state that he transported the
fortified wine or spirituous liquor “in the passenger area” of his motor vehicle and as
such, is fatally defective to confer jurisdiction. Defendant contends that the citation
failed to include an essential element of the crime charged and that a citation, which
may be issued by a law enforcement officer, see N.C.G.S. § 15A-302(b) (“An officer
may issue a citation to any person who he has probable cause to believe has
committed a misdemeanor or infraction.”), is to be held to the same standard as an
indictment issued by a grand jury, see N.C. Gen. Stat. § 15A-641(a) (2015) (“Any
indictment is a written accusation by a grand jury, filed with a superior court,
charging a person with the commission of one or more criminal offenses.”).
Defendant’s contention does not comport with the statutory law of North Carolina,
where the standard for issuance of an indictment is not precisely the same as a
citation.
Nevertheless, in pertinent part, General Statutes, section 15A-302 states that
a citation must “[i]dentify the crime charged.” N.C.G.S. § 15A-302(c). As noted above,
the citation issued to defendant on 27 July 2013 sufficiently identified the crime
charged—transporting an open container of fortified wine or spirituous liquor while
operating a motor vehicle—and put defendant on notice of the charge. Defendant was
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Opinion of the Court
tried on the citation at issue without objection in the district court, and by a jury in
the superior court on a trial de novo. Thus, once jurisdiction was established and
defendant was tried in the district court, “he was no longer in a position to assert his
statutory right to object to trial on citation . . . .” Monroe, 57 N.C. App. at 599, 292
S.E.2d at 22. Therefore, defendant’s challenge to the trial court’s jurisdiction is
without merit.
NO ERROR.
Judges GEER and McCULLOUGH concur.
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