State v. Jackson

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-280

Filed 5 March 2024

Wake County, No. 20 CRS 206791

STATE OF NORTH CAROLINA

v.

CURTIS LEVON JACKSON, Defendant.

Appeal by Defendant from judgment entered 12 August 2021 by Judge Keith

O. Gregory in Wake County Superior Court. Heard in the Court of Appeals 11

January 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General M.
Denise Stanford, for the State.

Joseph P. Lattimore for Defendant.

GRIFFIN, Judge.

Defendant Curtis Levon Jackson appeals from judgment entered upon a jury

verdict finding him guilty of second-degree forcible sex offense; second-degree forcible

rape; first-degree kidnapping; assault on a female; interfering with emergency

communication; assault with a deadly weapon; and assault inflicting serious injury.

Defendant contends he was denied protections guaranteed by the Sixth Amendment

when he was deprived of both the right to autonomy in the presentation of his defense

and the right to effective assistance of counsel. Defendant further contends the trial

court lacked jurisdiction to sentence him for habitual misdemeanor assault where the
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Opinion of the Court

indictment was facially invalid. We hold Defendant was not denied any right

guaranteed by the Sixth Amendment. Additionally, we hold the trial court

maintained jurisdiction to sentence Defendant for habitual misdemeanor assault as

the indictment was not facially invalid.

I. Factual and Procedural Background

This case arises from incidents which occurred 26 April 2020. Evidence at trial

tended to show the following:

In March 2020, Defendant met the victim at a grocery store. The two began

dating and maintained a tumultuous relationship. On the evening of 25 April 2020,

victim attended a party. Defendant became agitated and repeatedly called victim.

When victim finally answered, Defendant told her to bring him food. Defendant

threatened to drive to victim’s home, where she resided with her children, if she

refused. In an effort to keep Defendant away from her children, victim reluctantly

agreed to take food to Defendant at his home.

Upon victim’s arrival with the food, Defendant turned off victim’s phone and

took her keys. Throughout the night and into the next morning, 26 April 2020,

Defendant continually raped and assaulted victim. Defendant told victim, on the

morning of 26 April 2020, she was going to drive him to an appointment. Defendant

threatened to tie victim up in his room if she refused.

Victim drove Defendant to the appointment but remained in the car.

Throughout Defendant’s appointment, victim made several attempts to get help.

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Opinion of the Court

Eventually, she was able to alert a store clerk nearby to call the police. Defendant

was arrested shortly thereafter, and victim was transported to a nearby hospital for

treatment of her injuries.

On 4 May 2020, Defendant was indicted on charges of second-degree forcible

sex offense, second-degree forcible rape, first-degree kidnapping, assault on a female,

habitual misdemeanor assault, interfering with emergency communication, assault

with a deadly weapon, and assault inflicting serious injury.

The matter came on for jury trial on 9 August 2021 in Wake County Superior

Court. On 12 August 2021, the jury returned a verdict, finding Defendant guilty on

all charges. The trial court arrested judgment on the assault inflicting serious injury

conviction—the predicate offense for the habitual misdemeanor assault conviction.

The court then pronounced judgment and sentenced Defendant on the remaining

convictions.

Defendant gave notice of appeal in open court.

II. Analysis

Defendant argues (A) he was denied protections guaranteed by the Sixth

Amendment when he was deprived of both the right to autonomy in the presentation

of his defense and the right to effective assistance of counsel. Defendant further

argues (B) the trial court lacked jurisdiction to sentence him for habitual

misdemeanor assault as the indictment was facially invalid. We disagree.

A. The Sixth Amendment

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Opinion of the Court

Defendant contends he was denied protections guaranteed by the Sixth

Amendment when he was deprived of both the right to autonomy in the presentation

of his defense and the right to effective assistance of counsel.

We review alleged violations of a defendant’s constitutional rights de novo. See

State v. Crump, 273 N.C. App. 336, 342, 848 S.E.2d 501, 505 (2020); see also State v.

Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008) (“Under a de novo review,

the [C]ourt considers the matter anew and freely substitutes its own judgment for

that of the lower tribunal.” (internal marks, emphasis, and citation omitted)).

1. Defendant’s right to autonomy in the presentation of his defense

Defendant contends he was denied his Sixth Amendment right to autonomy in

the presentation of his defense as the trial court committed a structural error in

failing to instruct Defendant’s counsel to conform to Defendant’s desire to introduce

documentary evidence when the two reached an absolute impasse.

The Sixth Amendment guarantees the accused, in all criminal prosecutions,

not only the right to have the assistance of counsel in making his defense, but also

the right to make his own defense. See U.S. Const. amend. VI; N.C. Const. Art. I, §

23 (“In all criminal prosecutions, every person charged with crime has the right to . . .

have counsel for defense[.]”); see also State v. Payne, 256 N.C. App. 572, 581, 808

S.E.2d 476, 483 (2017) (“Although not stated in the Amendment in so many words,

the right to self-representation—to make one’s own defense personally—is [ ]

necessarily implied by the structure of the Amendment.” (quoting Faretta v.

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Opinion of the Court

California, 422 U.S. 806, 819–20 (1975))). Even where a defendant elects to exercise

his right to have the assistance of counsel, he is still entitled to some autonomy over

his defense. See Faretta, 422 U.S. at 819–20; see also State v. Ali, 329 N.C. 394, 403,

407 S.E.2d 183, 189 (1991) (“No person can be compelled to take the advice of his

attorney.” (internal marks and citations omitted)). This is because the attorney-client

relationship is one based in the “principles of agency, [ ] not guardian and ward.” Ali,

329 N.C. at 403, 407 S.E.2d at 189 (internal marks and citation omitted). Thus, an

attorney “is bound to comply with her client’s lawful instructions” and may only act

within the scope of the authority conferred upon her by the defendant. Id. (citation

omitted).

Our Courts have previously recognized certain decisions, relating to the

conduct of a case, are to be made by the accused, while other strategic and tactical

decisions, such as what and how evidence should be introduced, are to be made by

defense counsel after consultation with the defendant. Id.; see also The American

Bar Association Criminal Justice Standards for the Defense Function Standard 4-5.2

(4th ed. 2017). However, where the defendant and his defense counsel reach an

absolute impasse and are unable come to an agreement on such tactical decisions, the

defendant’s wishes must control. State v. Ward, 281 N.C. App. 484, 487, 868 S.E.2d

169, 173 (2022) (internal marks and citation omitted). Notably, upon reaching an

absolute impasse, “defense counsel should make a record of the circumstances, her

advice to the defendant, the reasons for the advice, the defendant’s decision and the

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Opinion of the Court

conclusion reached.” Ali, 329 N.C. at 404, 407 S.E.2d at 189; see also State v. Floyd,

369 N.C. 329, 340, 794 S.E.2d 460, 467 (2016).

In State v. Floyd, the defendant argued, on appeal, the trial court failed to

adequately address an impasse between the defendant and his counsel regarding

certain unidentified questions the defendant wanted to be asked of a witness. Id.

Further, the defendant argued the trial court’s failure to instruct his counsel to

comply with his wishes amounted to a denial of his constitutional right to control his

defense and confront a witness. Id. Our Supreme Court stated, while the defendant

did tell the court his attorney was not asking the questions the defendant told him to

ask, the record did “not shed any light on the nature or the substance” of those

questions. Id. at 341, 794 S.E.2d at 468. Further, the Court also recognized the

defendant was generally disruptive throughout trial and was forced to leave the

courtroom, which led him to have a consultation with his attorney, while the witness,

to whom he wished to ask the desired questions, was on the witness stand. Id.

Accordingly, our Supreme Court held it was unable, without engaging in conjecture,

to determine whether the defendant had a serious disagreement with his attorney

regarding trial strategy and therefore could not determine, from the cold record,

whether an absolute impasse existed. Id.

Here, defense counsel stated Defendant would not introduce evidence or testify

on his own behalf. The trial court then conducted a colloquy to ensure Defendant

understood it was his right to testify and was waiving the right upon his own volition:

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Opinion of the Court

TRIAL COURT: All right. Now, you mentioned—I
mentioned evidence. You have a right
to present evidence through other
witnesses and so forth. Do you
understand that?

DEFENDANT: Yes, sir.

TRIAL COURT: All right. My understanding is you
have no intentions of putting on any
evidence; is that correct?

DEFENDANT: I have no intention of testifying.

TRIAL COURT: Okay. Are you going to present any
evidence?

DEFENDANT: I wanted my attorney to present some
evidence.

...

TRIAL COURT: All right. Now, are you—in reference to
evidence, is it some type of
documentation or some type of physical
or tangible object that you wanted to
present as evidence?

DEFENDANT: Yeah, documentation.

Defendant contends, during this colloquy, the trial court was presented with an

absolute impasse, which occurred between Defendant and defense counsel,

concerning Defendant’s desire to introduce certain documentary evidence. However,

while Defendant did announce to the court he wanted his attorney to “present some

evidence,” the record fails to indicate the substance of such questions. Therefore, just

as our Supreme Court held in Floyd, we hold we are unable to determine from the

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Opinion of the Court

cold record whether there was a true disagreement, which would amount to an

absolute impasse, between Defendant and defense counsel.

Defendant further contends, upon being presented with what he argued was

an absolute impasse, the trial court committed a structural error.

A structural error is a rare constitutional error “resulting from structural

defects in the constitution of the trial mechanism[.]” State v. Garcia, 358 N.C. 382,

409, 597 S.E.2d 724, 744 (2004) (internal marks and citation omitted). These errors

“prevent a criminal trial from reliably serving its function as a vehicle for

determination of guilt or innocence.” State v. Veney, 259 N.C. App. 915, 919, 817

S.E.2d 114, 117 (2018) (internal marks and citation omitted); see also Garcia, 358

N.C. at 409, 597 S.E.2d at 744 (“Such errors infect the entire trial process and

necessarily render a trial fundamentally unfair[.]” (internal marks and citations

omitted)). Our Supreme Court has identified six instances of structural error, which

include:

(1) complete deprivation of right to counsel; (2) a biased
trial judge; (3) the unlawful exclusion of grand jurors of the
defendant’s race; (4) denial of the right to self-
representation at trial; (5) denial of the right to a public
trial; and (6) constitutionally deficient jury instructions on
reasonable doubt.

State v. Minyard, 289 N.C. App. 436, 448–49, 890 S.E.2d 182, 191 (2023) (internal

marks and citations omitted). These structural errors are reversible per se. See State

v. Campbell, 280 N.C. App. 83, 87–88, 866 S.E.2d 325, 328 (2021) (quoting Garcia,

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Opinion of the Court

358 N.C. at 409, 597 S.E.2d at 744 (“[A] defendant’s remedy for structural error is not

[dependent] upon harmless error analysis[.]”)).

After Defendant stated there was documentary evidence he wanted defense

counsel to introduce, the trial court conducted the following colloquy:

TRIAL COURT: All right. Now, you’ve talked about this
with your attorney, correct?

DEFENDANT: Yes, sir.

TRIAL COURT: All right. Your attorney has addressed
with you the legal issues as far as any
documentation is concerned?

DEFENDANT: Legal issues as?

TRIAL COURT: About how it could be—if it can be
admitted into evidence.

...

[discussion of potential foundational issues concerning the
introduction of evidence]

...

TRIAL COURT: You may not agree with it, but do you
understand it?

DEFENDANT: Yeah. Like—like if I wanted to enter
some type of evidence, it would totally
be up to my attorney? Evidence away
from me testifying?

TRIAL COURT: Well, if your attorney has determined
that that evidence may not be legally
admissible, relevant, pertinent, and a
slew of other things, he can make that
determination. But I will say this also,

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Opinion of the Court

even if you thought, respectfully, if you
were representing yourself and you
attempted to put that object in, I
cannot guarantee it’s going to come into
evidence if it’s not coming in properly
under the evidentiary rules. Because
there are rules that would involve
whether or not it’s admissible or not.

Defendant argues the trial court committed structural error as it failed to properly

address the alleged absolute impasse when it did not require defense counsel to

comply with Defendant’s desire to present evidence.

As stated above, we are unable to determine from the cold record whether there

existed an absolute impasse between Defendant and defense counsel. Nonetheless,

the error here, which Defendant contends amounted to a structural error, is not one

our Supreme Court has previously identified as a structural error. See Minyard, 289

N.C. App. at 448–49, 890 S.E.2d at 191. Therefore, Defendant’s argument fails.

2. Defendant’s right to effective assistance of counsel

Defendant contends he was denied his Sixth Amendment right to effective

assistance of counsel as defense counsel committed a Harbison error during closing

arguments by impliedly conceding Defendant’s guilt. Further, Defendant argues the

trial court erred as it failed to conduct an inquiry with Defendant to ensure he

knowingly consented to defense counsel’s concession of guilt.

Again, we note the Sixth Amendment guarantees the accused, in all criminal

prosecutions, the right to have the assistance of counsel in making his defense. See

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Opinion of the Court

U.S. Const. amend. VI; N.C. Const. Art. I, § 23. Inherent in the right to the assistance

of counsel is the right to have effective assistance of counsel. See State v. McNeill,

371 N.C. 198, 217, 813 S.E.2d 797, 812 (2018) (citation omitted). Generally, where a

defendant makes an ineffective assistance of counsel claim, arguing he was denied

effective assistance of counsel, he must satisfy a two-part test established by the

United States Supreme Court in Strickland v. Washington. See Strickland v.

Washington, 466 U.S. 668, 687–88 (1984); see also State v. Braswell, 312 N.C. 553,

562–63, 324 S.E.2d 241, 248 (1985) (“[W]e expressly adopt the test set out in

Strickland v. Washington as a uniform standard to be applied to measure ineffective

assistance of counsel under the North Carolina Constitution.”). To meet his burden

under Strickland, a defendant must show (1) his counsel’s performance was deficient,

and (2) the deficient performance prejudiced his defense. See Strickland, 466 U.S. at

687–88; see also McNeill, 371 N.C. at 218, 813 S.E.2d at 812.

While acknowledging the Strickland test for claims of ineffective assistance of

counsel, our Supreme Court in State v. Harbison held ineffective assistance of

counsel, per se in violation of the Sixth Amendment, occurs where defense counsel

admits a defendant’s guilt to the jury without consent. State v. Harbison, 315 N.C.

175, 180, 337 S.E.2d 504, 507–08 (1985). This violation, known as a Harbison error,

exists where, in viewing the defense counsel’s statements in context, the statements

“‘cannot logically be interpreted as anything other than an implied concession of guilt

to a charged offense[.]’” State v. Moore, 286 N.C. App. 341, 345, 880 S.E.2d 710, 714

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Opinion of the Court

(2022) (quoting State v. McAllister, 375 N.C. 455, 475, 847 S.E.2d 711, 723 (2020));

see also State v. Mills, 205 N.C. App. 577, 587, 696 S.E.2d 742, 748–49 (2010)

(explaining defense counsel’s statements “must be viewed in context to determine

whether the statement was, in fact, a concession of [the] defendant’s guilt of a

crime[.]” (citation omitted)); McAllister, 375 N.C. at 473, 847 S.E.2d at 722 (holding

Harbison errors extended not only to the defense counsel’s express admissions of guilt

but also to implied admissions of guilt).

A Harbison error does not exist where the defendant has consented to his

counsel’s statement as a trial strategy. McAllister, 375 N.C. at 475, 847 S.E.2d at

723. However, even under these circumstances, “the trial court must be satisfied

that, prior to any admissions of guilt . . . , the defendant [gave] knowing and informed

consent, and the defendant [was] aware of the potential consequences of his decision.”

State v. Foreman, 270 N.C. App. 784, 790, 842 S.E.2d 184, 189 (2020) (internal marks

and citation omitted).

In State v. McAllister, the defendant was indicted on charges of: habitual

misdemeanor assault based on assault on a female, assault by strangulation, second-

degree sexual offense, and second-degree rape. 375 N.C. at 458–59, 847 S.E.2d at

714. During the State’s case in chief, a law enforcement interview with the defendant

was entered into evidence and played for the jury. Id. at 459, 847 S.E.2d at 714.

Then, during closing arguments, the defense counsel referred to the interview stating:

You heard him admit that things got physical. You heard

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Opinion of the Court

him admit that he did wrong, God knows he did. They got
in some sort of scuffle or a tussle or whatever they want to
call it, she got hurt, he felt bad, and he expressed that to
detectives. . . .

...

[Y]ou may dislike [the defendant] for injuring [the victim],
that may bother you to your core but he, without a lawyer
and in front of two detectives, admitted what he did and
only what he did. He didn’t rape this girl. . . .

...

Can you convict this man of rape and sexual offense,
assault by strangulation based on what they showed you?
You can’t. Please find him not guilty.

Id. at 460–61, 847 S.E.2d at 715. After deliberation, the jury returned a verdict

finding the defendant not guilty on all charges except the charge of assault on a

female. Id. at 461, 847 S.E.2d at 715.

On appeal, our Supreme Court noted the defense counsel’s statements were

problematic as he: attested to the accuracy of the admissions made by the defendant

in his interview; reminded the jury the defendant did wrong and implied there was

no justification for the defendant’s use of force against the victim; and asked the jury

to find the defendant not guilty of all charges while omitting mention of the charge of

assault on a female. Id. at 474, 847 S.E.2d at 722–23. Thus, our Supreme Court held

the defense counsel’s statements amounted to an implied admission of guilt and

remanded the case to the Superior Court for an evidentiary hearing to determine

whether the defendant knowingly consented in advance to the defense counsel’s

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Opinion of the Court

admission of guilt to the assault on a female charge. Id. at 477–78, 847 S.E.2d at 725.

Here, in his closing argument, defense counsel stated, in relevant part:

[Defendant] is charged with some very serious crimes. I
mean, kidnapping, forcible rape. Years and years and
years in prison.

...

When you look at evidence in this case, the credible
evidence, . . . not evidence that just comes out of her mouth.
She says it, that doesn’t make it true. You are the sole
judges of credibility in this case. You have to use your
common sense. You have to evaluate the witness. And
that’s your job.

...

I mean, ladies and gentlemen, when a witness gets up here
and makes—spits out rhetoric that doesn’t make any sense
at all, you can’t just accept it as true.

...

So, when you think about the other witnesses, the nurse
. . . that form that was filled out that I believe has been
submitted to evidence, you all got to look at it, the checklist,
it said no injuries. I mean, we’re talking about the neck
and we’re talking about strangulation, but there’s no
marks on the neck.

[Victim] testified that she could hardly walk. She had to
have somebody help her shower, bathe, and that kind of
thing. Think about the body cam when she’s running
around all over the place.

I mean, the doctor at the stem cell center, she approached
him, . . . he said she looked fine. There was nothing wrong
with her. And she’s alleging these serious injuries. I mean,
common sense tells you she’s not seriously injured.

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Opinion of the Court

Forcible rape, kidnapping, we don’t have that here.

...

Ladies and gentlemen, [Defendant] is not guilty of
kidnapping, and he’s not guilty of a sexual offense of any
kind. We’d ask that you find him not guilty. Thank you
very much for your time.

Undoubtedly, Defense counsel only mentioned Defendant’s charges for

kidnapping and “sexual offense of any kind,” omitting reference to Defendant’s charge

for assault on a female. Nevertheless, unlike the defendant’s counsel in McAllister,

defense counsel here never implied or mentioned any misconduct on behalf of

Defendant. Instead, defense counsel, despite failing to specifically reference

Defendant’s assault charge, spent ample time making statements explicitly calling

the jury’s attention to the lack of evidence to support a conviction on such a charge

and asked the jury, generally, to find Defendant not guilty. Thus, in viewing the

entirety of defense counsel’s statements in context, we hold those statements cannot

logically be interpreted as an implied concession of Defendant’s guilt.

We recognize Defendant further argues the trial court erred as it failed to

conduct the required inquiry with Defendant to ensure he knowingly consented to

defense counsel’s concession of guilt. However, because we hold defense counsel did

not concede guilt on behalf of Defendant, we hold the trial court was not required to

conduct an inquiry and therefore did not err.

B. Validity of the Indictment and the Trial Court’s Jurisdiction

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Opinion of the Court

Defendant contends the indictment was facially invalid as to the charge of

habitual misdemeanor assault thereby divesting the trial court of jurisdiction. We

disagree.

An indictment is a pleading which makes a formal accusation that the

defendant has committed a crime. See State v. Abbott, 217 N.C. App. 614, 617, 720

S.E.2d 437, 439 (2011). The purpose of an indictment is, among other things, to

provide the accused with notice of the offense with which he is charged. See State v.

Williams, 368 N.C. 620, 623, 781 S.E.2d 268, 270–71 (2016); see also State v. Greer,

238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953). Thus, our North Carolina General

Statutes, section 15A-924(a)(5), requires an indictment contain:

A plain and concise factual statement in each count which,
. . . asserts 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.

N.C. Gen. Stat. § 15A-924(a)(5) (2021). Where the indictment fails to do so, there is

not a sufficient accusation against the defendant, the trial court acquires no

jurisdiction, and any subsequent trial and conviction are a nullity. See State v.

Harris, 219 N.C. App. 590, 593, 724 S.E.2d 633, 636 (2012) (“There can be no trial,

conviction, or punishment for a crime without a formal and sufficient accusation.”

(internal marks and citation omitted)).

Here, Defendant argues the indictment failed to allege every element of the

offense of habitual misdemeanor assault because count IV failed to state the assault

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Opinion of the Court

on a female caused “physical injury.” However, habitual misdemeanor assault in

violation of N.C. Gen. Stat. §14-33.2 was sufficiently alleged in counts V and VIII:

V. And the grand jurors for the state upon their oath
present that on or about April 26, 2020, [ ] [D]efendant had
been previously convicted of two or more felony or
misdemeanor assaults, and the earlier of these convictions
occurred no more than 15 years prior to the date of the
current offense, to wit:

a. On or about July 31, 2011 [ ] [D]efendant did
commit the assault of Assault on a Government
Official/Employee in Wake County, North Carolina,
and thereafter was convicted and judgment entered
on August 22, 2011 in Wake County District Court
(File No. 11 CR 217692).

b. On or about July 31, 2011 [ ] [D]efendant did
commit the assault of Assault on a Female in Wake
County, North Carolina, and thereafter was
convicted and judgment entered on August 22, 2011
in Wake County District Court (File No. 11 CR
217690).

...

VIII. And the grand jurors for the state upon their oath
present that on or about April 26, 2020, in Wake County, [
] [D]efendant named above unlawfully and willfully did
assault and strike [victim] [ ], by hitting her shoulder,
thereby inflicting serious injury. This act was done in
violation of [N.C. Gen. Stat § 14-33.2].

Pursuant to N.C. Gen. Stat. §14-33.2, a defendant is guilty of habitual

misdemeanor assault where he,

violates any of the provisions of [N.C. Gen. Stat. § 14-33]
and causes physical injury, or [N.C. Gen. Stat. §14-34], and
has two or more prior convictions for either misdemeanor
or felony assault, with the earlier of the two prior

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Opinion of the Court

convictions occurring no more than 15 years prior to the
date of the current violation.

N.C. Gen. Stat. § 14-33.2 (2021). Accordingly, the essential elements of habitual

misdemeanor assault are, the defendant: (1) violates any of the provisions of N.C.

Gen. Stat. § 14-33, (2) causes physical injury, and (3) has two or more prior convictions

for misdemeanor or felony assault, with the earlier of the two occurring less than 15

years prior to the date of the current violation.

The indictment here included allegations concerning elements (1) and (3) of the

offense of habitual misdemeanor assault. Defendant’s two prior convictions were

alleged in count V, and Defendant having violated the provisions of N.C. Gen. Stat. §

14-33, was alleged in count VIII (assault inflicting serious injury). Thus, we need

only determine whether the indictment was sufficient as to element (2) of the habitual

misdemeanor assault charge where count VIII stated Defendant inflicted “serious

injury” rather than “physical injury,” as prescribed in the statutory language of N.C.

Gen. Stat. § 14-33.2.

In drawing an indictment, we recognize the “true and safe rule for prosecutors

. . . is to follow strictly the precise wording of the statute.” State v. Sturdivant, 304

N.C. 293, 310–11, 283 S.E.2d 719, 731 (1981) (internal marks and citations omitted).

Nonetheless, our precedent makes clear “it is not the function of an indictment to

bind the hands of the State with technical rules of pleading[.]” Id. at 311, 283 S.E.2d

at 731; see also In re J.U., 384 N.C. 618, 623, 887 S.E.2d 859, 863 (2023); State v.

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Opinion of the Court

Jones, 265 N.C. App. 644, 648, 829 S.E.2d 507, 510–11 (2019); Williams, 368 N.C. at

623, 781 S.E.2d at 270–71.

At common law, our courts were bound by strict, highly technical pleading

standards which required specific evidentiary allegations to support each element.

See State v. Owen, 5 N.C. 452, 464 (1810) (holding an indictment for murder, where

the death was occasioned by a wound, was insufficient as it failed to describe the

dimensions of the wound). However, our General Assembly has since enacted

statutes intended to alleviate such technical pleading requirements. See State v.

Rankin, 371 N.C. 885, 919, 821 S.E.2d 787, 810–11 (2018) (Martin, C.J., dissenting)

(thoroughly recounting the history of criminal pleadings in North Carolina). Through

such legislative reforms, North Carolina criminal law and procedure has “evolved

from requiring elemental specificity to a more simplified requirement that

indictments allege facts supporting each essential element of the charged offense.”

In re J.U., 384 N.C. at 623, 887 S.E.2d at 863 (internal marks and citation omitted).

Today, our General Statutes provide, an indictment “is sufficient in form for

all intents and purposes if it express[es] the charge against the defendant in a plain,

intelligible, and explicit manner[.]” N.C. Gen. Stat. § 15-153 (2021). Further, section

15-153 states an indictment will not “be quashed, nor the judgment thereon stayed,

by reason of any informality or refinement, if in the bill or proceeding, sufficient

matter appears to enable the court to proceed to judgment.” Id.

In considering the “serious injury” language used in count VIII above, we note,

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Opinion of the Court

our Court in State v. Harris stated, “an indictment for a statutory offense is sufficient,

if the offense is charged in the words of the statute, either literally or substantially,

or in equivalent words.” 219 N.C. App. at 592–93, 724 S.E.2d at 636 (internal marks

and citation omitted); see also State v. Singleton, 85 N.C. App. 123, 126, 354 S.E.2d

259, 262 (1987) (“An indictment couched in the language of the statute is generally

sufficient to charge the statutory offense.” (citation omitted)). Similarly, our Supreme

Court most recently stated, “[i]t is generally held that the language in a statutorily

prescribed form of criminal pleading is sufficient if the act or omission is clearly set

forth so that a person of common understanding may know what is intended.” In re

J.U., 384 N.C. at 624, 887 S.E.2d at 863 (internal marks and citation omitted).

Relevant here, our Courts have repeatedly applied a broad definition of serious

injury—including within that definition both physical and mental injuries. See State

v. Everhardt, 326 N.C. 777, 781, 392 S.E.2d 391, 393 (1990) (holding a mental injury

will support the element of serious injury under N.C. Gen. Stat. § 14-32); State v.

Demick, 288 N.C. App. 415, 436, 886 S.E.2d 602, 618 (2023) (citing N.C. Gen. Stat. §

14-318.4, which defines serious physical injury to include physical and mental

injuries). Moreover, we note the purpose of an indictment is, among other things, to

provide the defendant with notice of the offense with which he is charged, using

language which would allow a person of common understanding to know what is

intended, so that he may properly prepare for trial. See Williams, 368 N.C. at 623,

781 S.E.2d at 270–71; see also In re J.U., 384 N.C. at 624, 887 S.E.2d at 863.

- 20 -
 STATE V. JACKSON

Opinion of the Court

Regardless of whether count VIII of the indictment used the broader, “serious injury”

language, it logically follows Defendant was noticed of his need to defend against an

allegation that he caused physical injury as “serious injury” is defined to include

physical injury. Thus, in using “serious injury” rather than “physical injury” the

indictment still served its purpose—to provide Defendant with notice of the offense

with which he was charged, N.C. Gen. Stat. § 14-33.2.

North Carolina law shows a consistent trend away from the archaic and

technical pleading requirements at common law. Thus, despite the use of the term

“serious injury” rather than “physical injury” in the indictment, we hold the

indictment was not facially invalid as it sufficiently noticed Defendant of the charges

against him. Because the indictment was not facially invalid, the trial court was not

deprived of jurisdiction.

III. Conclusion

We hold Defendant was not denied any right guaranteed by the Sixth

Amendment. Further, we hold the trial court maintained jurisdiction to sentence

Defendant for habitual misdemeanor assault as the indictment was not facially

invalid.

NO ERROR.

Judge CARPENTER concurs.

Judge MURPHY concurs in part and dissents in part by separate opinion.

- 21 -
 No. COA22-280 – State v. Jackson

MURPHY, Judge, concurring in part and dissenting in part.

While I fully concur in the Majority’s analysis of Defendant’s Harbison

argument, I respectfully dissent from its holding as to the sufficiency of the

indictment. To be valid and thus confer jurisdiction to the trial court, a criminal

indictment must allege every essential element of the charged offense. In limited

circumstances, when one count in an indictment does not allege all essential

elements, those elements may be imputed from a separate count in the indictment.

Defendant appeals his conviction of habitual misdemeanor assault under N.C.G.S.

§ 14-33.2 on jurisdictional grounds on the basis that the indictment failed to allege

“physical injury.” In my view, Defendant was not properly indicted with habitual

misdemeanor assault under N.C.G.S. § 14-33.2 due to the indictment’s failure to

allege the element of physical injury, either expressly or through supplementation.

I would therefore vacate Defendant’s habitual misdemeanor assault conviction and

remand for a new sentencing hearing on Defendant’s conviction for assault

inflicting serious injury.

Defendant Curtis Levon Jackson appeals from convictions of second-degree

forcible sex offense in violation of N.C.G.S. § 14-27.27, second-degree forcible rape

in violation of N.C.G.S. § 14-27.22, first-degree kidnapping in violation of N.C.G.S.

§ 14-39, habitual misdemeanor assault in violation of N.C.G.S. § 14-33.2, assault

with a deadly weapon in violation of N.C.G.S. § 14-33(C)(1), interfering with
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

emergency communication in violation of N.C.G.S. § 14-286.2, and assault inflicting

serious injury against Tanya,1 his ex-partner, in violation of N.C.G.S. § 14-33(C)(2).

In early March 2020, Tanya and Defendant met at a grocery store. Tanya

gave Defendant her phone number. Thereafter, they began talking on the phone

and spending time together on weekends at Defendant’s house. The relationship

started off well, but it soured in April 2020 when Tanya became pregnant, informed

Defendant, and lost the baby a week and a half later. According to Tanya, things

went “downhill real quick [sic].” Defendant exhibited the occasional “tantrum” and

would take her belongings to keep her from leaving.

On 24 April 2020, Tanya told Defendant over the phone that she did not want

to continue their relationship. That same day, she agreed to meet Defendant at his

friend’s house to talk. Defendant drove his roommate’s car to his friend’s house.

When she arrived at the house, Defendant joined her in her truck. During their

conversation, Defendant “got frustrated” over a phone call she received about an

upcoming party. Tanya testified that “[Defendant] didn’t want to sit there no more.

He wanted to go [to] his place.” When she refused to drive him to his place,

Defendant grabbed her pocketbook, food, and keys; got back into his roommate’s

car; and drove away with her belongings.

Using her truck’s spare key, Tanya followed Defendant to his house to

1 I use a pseudonym to protect the identity of the victim and for ease of reading.

2
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

retrieve her belongings. When she arrived, Defendant got inside of her truck, and

the two argued. Defendant took Tanya’s spare key out of the truck’s ignition, along

with her pocketbook, food, phone, and first set of keys, and went into his room.

When Tanya followed Defendant into his room for her belongings, Defendant

slapped her in the face, berated her, and refused to let her leave.

The next day, on 25 April 2020, Tanya drove Defendant to an appointment.

After his appointment, she and Defendant argued because she planned to attend a

party later that evening. Defendant, in response, took her keys and grabbed her

gun to prevent her from leaving. However, Defendant returned both the keys and

gun when Tanya threatened to call the police.

That night, Tanya attended the party. Defendant repeatedly called and

texted her while she was at the party, but she had blocked his phone number.

Defendant then called Tanya from her son’s phone to speak with her. Defendant

complained to Tanya about hunger and back pain, threatening to show up at her

home if she did not bring food to his house. Eventually, Tanya agreed to take

Defendant some food because she did not want Defendant to be around her children

at home. When Tanya arrived at Defendant’s house, Defendant became agitated

and requested that Tanya get off her phone so the two could engage in

uninterrupted conversation.

Tanya turned her phone off as Defendant requested without “think[ing]

3
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

much of it.” Defendant then “flipped” and announced he was “going to beat” Tanya.

Defendant claimed to have “planned everything all the way up to this.” Defendant

seized Tanya’s keys and phone and started swinging at her, slapping her face, and

punching her arms while calling her names. Defendant also hit her with a broom

handle, choked her, and put a pillow over her face. Defendant tried to damage her

phone with a hammer but was unsuccessful. Defendant threatened Tanya not to

call the police and raped and assaulted her several times from the night of 25 April

2020 until 8:00 am on 26 April 2020. Fearing Defendant would tie her up at his

house if she did not join him, Tanya agreed to accompany Defendant to an

appointment on the morning of 26 April 2020. After several attempts to get help,

she successfully alerted a store clerk to call the police. Defendant was arrested

shortly thereafter, and Tanya was transported to a nearby hospital for treatment

of her injuries.

On 4 May 2020, Defendant was indicted for second-degree forcible sex

offense, second-degree forcible rape, first-degree kidnapping, habitual

misdemeanor assault, interfering with emergency communication, and assault

with a deadly weapon inflicting serious injury (“AWDWISI”). The indictment

alleged, in relevant part:

IV. [] [T]he grand jurors for the [S]tate upon their oath
present that on or about [26 April] 2020, in Wake County,
[Defendant] unlawfully and willfully did assault and
strike [Tanya], a female person. [Defendant] is a male

4
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

person and was at least 18 years of age when the assault
occurred. This act was done in violation of N.C.G.S. § 14-
33(c)(2).

V. And the grand jurors for the [S]tate upon their oath
present that on or about [26 April] 2020, [Defendant] had
been previously convicted of two or more felony or
misdemeanor assaults, and the earlier of these
convictions occurred no more than 15 years prior to the
date of the current offense, to wit:

a. On or about [13 July 2011,] [Defendant] did
commit the assault of Assault on a Government
Official/Employee in Wake County, North Carolina,
and thereafter was convicted and judgment entered
on [22 August 2011] in Wake County District Court
(File No. 11 CR 217692).

b. On or about [13 July 2011], [Defendant] did
commit the assault of Assault on a Female in Wake
County, North Carolina, and thereafter was
convicted and judgment entered on [22 August
2011] in Wake County District Court (File No. 11
CR 217690).

....

VIII. And the grand jurors for the [S]tate upon their oath
present that on or about [26 April] 2020, in Wake County,
[Defendant] unlawfully and willfully, did assault and
strike [Tanya], by hitting her shoulder, thereby inflicting
serious injury. This act was done in violation of N.C.G.S.
§ 14-33.2.

During trial, outside the presence of the jury, Defendant admitted that,

prior to the date of his 25 April and 26 April 2020 assault charges against Tanya,

he had been convicted of the crimes of assault on a government official and assault

5
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

on a female on 22 August 2011, as alleged in Count V.

Later in the proceedings, the trial court conducted a colloquy with

Defendant, during which it informed Defendant about his rights to present

evidence and testify. Defendant affirmed to the trial court that he understood and

voluntarily elected not to testify. Defendant, however, noted his interest in

presenting documentary evidence through his defense counsel. Defendant

communicated some uncertainty about how to get a certain document admitted into

evidence. The following conversation occurred:

[DEFENDANT]: I wanted my attorney to present some
evidence.

[COURT]: All right. Now, as far as evidence, I don’t want
to get into any attorney-client privilege issues, but is it
fair to say that you’re asking to have someone else testify
in this matter?

[DEFENDANT]: Evidence is only someone testifying?

[COURT]: No. But I’m inquiring, are you asking
someone else to testify? That’s the first question that I
have.

[DEFENDANT]: No, sir.

[COURT]: All right. Now, are you – in reference to
evidence, is it some type of documentation or some type
of physical or tangible object that you wanted to present
as evidence?

[DEFENDANT]: Yeah, documentation.

6
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

[COURT]: All right. Now, you’ve talked about this with
your attorney, correct?

[DEFENDANT]: Yes, sir.

[COURT]: All right. Your attorney has addressed with
you the legal issues as far as any documentation is
concerned?

[DEFENDANT]: Legal issues as?

[COURT]: About how it could be – if it can be admitted
into evidence.

[DEFENDANT]: I think –

The trial court clarified the necessary legal steps Defendant could take with

the help of his counsel to ensure a document is appropriately admissible.

Defendant communicated that he understood the trial court’s explanations;

however, right before the jury returned, he noted the following:

[DEFENDANT]: I know we spoke about the evidence. I
mean, I just wanted to say that I did have evidence that—
I didn’t want to testify. I did have evidence that I thought
would help prove my innocence, and my attorney didn’t
think we should enter that evidence.

....

And it wasn’t that he didn’t think we could get it in the
court, he just didn’t think we should enter it. And I just
wanted to state that on the record.

The trial court acknowledged the statement, and defense counsel did not

7
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

respond except to affirm that the defense was ready for the jury to return to the

courtroom. Defendant did not present any evidence during the trial or make an

offer of proof.

After the trial court provided its jury instructions, the State presented its

closing argument, explaining every charge in turn, starting with the more severe

crimes—second-degree rape, second-degree sex offense, and first-degree

kidnapping—and ending with the “litany of assaults.” Defense counsel, inter alia,

argued in closing that “[Defendant] doesn’t have to prove one single thing. . . . [The

State] [has] to prove these charges beyond a reasonable doubt.” Defense counsel

began and ended his argument by discussing the “very serious crimes” that

Defendant was charged with, i.e., “kidnapping[] [and] forcible rape.” Defense

counsel explained to the jury what the State’s burden of proof was regarding the

charges and challenged them to carefully evaluate the “stor[ies] [they] heard” and

testimonies about Defendant’s charges for contradictions. Additionally, defense

counsel placed emphasis on the “very serious crimes” throughout his closing

argument. The pattern of defense counsel’s emphasis on the more serious crimes

alleged by the State was as follows:

[Defendant] is charged with some very serious crimes. I
mean, kidnapping, forcible rape. Years and years and
years in prison.

....

8
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

Forcible rape, kidnapping, we don’t have that here.
Every element has to be satisfied.

....

Ladies and gentlemen, [Defendant] is not guilty of
kidnapping, and he’s not guilty of a sexual offense of any
kind. We’d ask that you find him not guilty.

The jury found Defendant guilty on all counts. The trial court arrested judgment

on the assault inflicting serious injury conviction due to the habitual misdemeanor

assault conviction.

Defendant argues that the indictment was facially invalid as to the habitual

misdemeanor assault charge because it failed to allege that the charge on which

Defendant claims the habitual misdemeanor assault was predicated, assault on a

female, “caused physical injury.”2 Defendant contends that, absent the physical

injury element, the trial court lacked subject matter jurisdiction to sentence

Defendant for habitual misdemeanor assault.

“[W]here an indictment is alleged to be invalid on its face, thereby depriving

the trial court of its [subject matter] jurisdiction, a challenge to that indictment

may be made at any time,” even for the first time on appeal. State v. Wallace, 351

N.C. 481, 503 (2000). We review whether the trial court had subject matter

jurisdiction over the habitual misdemeanor assault charge de novo. State v.

2 Physical injury is an essential element required for charging habitual misdemeanor assault

under N.C.G.S. § 14-33.2. See N.C.G.S § 14-33.2 (2021); see also State v. Garrison, 225 N.C. App.
170, 172 (2013).

9
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

Barnett, 223 N.C. App. 65, 68 (2012).

To be valid and thus confer jurisdiction, N.C.G.S. § 15A-924(a)(5) requires

that “an indictment charging a statutory offense must allege all of the essential

elements of the charged offense.” Barnett, 223 N.C. App. at 68 (citing State v.

Snyder, 343 N.C. 61, 65 (1996)); see also State v. Kelso, 187 N.C. App. 718, 722

(2007) (“[A]n indictment must allege every element of an offense in order to confer

subject matter jurisdiction on the court.”), disc. rev. denied, 362 N.C. 367 (2008).

“The sufficiency of an indictment is a question of law reviewed de novo.” State v.

White, 372 N.C. 248, 250 (2019).

A defendant is guilty of habitual misdemeanor assault if

that person violates any of the provisions of [N.C.G.S.] §
14-33 and causes physical injury, or [N.C.G.S.] § 14-34,
and has two or more prior convictions for either
misdemeanor or felony assault, with the earlier of the
two prior convictions occurring no more than 15 years
prior to the date of the current violation.

N.C.G.S. § 14-33.2 (2021) (Emphasis added). Defendant challenges the validity of

his indictment with respect to the habitual misdemeanor assault charge because

the indictment did not allege that the assault on a female caused physical injury.

Count IV of the indictment alleged that

[Defendant] unlawfully and willfully did assault and
strike [Tanya], a female person. [Defendant] is a male
person and was at least 18 years of age when the assault
occurred. This act was done in violation of N.C.G.S. § 14-
33(c)(2).

10
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

Count V of the indictment alleged that

[Defendant] had been previously convicted of two or more
felony or misdemeanor assaults, and the earlier of these
convictions occurred no more than 15 years prior to the
date of the current offense[.]

Neither Count IV nor Count V contain language alleging that Defendant caused

physical injury to Tanya. Thus, Defendant argues, the allegations in Count IV,

describing the April 2020 offense, and Count V, describing his previous convictions,

are insufficient to indict him for habitual misdemeanor assault.

In response, the State argues that the allegation of injury contained in Count

VIII satisfies the physical injury element for the habitual misdemeanor assault

charge. Count VIII of the indictment alleges that

[Defendant] unlawfully and willfully, did assault and
strike [Tanya], by hitting her shoulder, thereby inflicting
serious injury. This act was done in violation of N.C.G.S.
§ 14-33.2.

(Emphasis added).

While I do not constrain my analysis of the sufficiency of Defendant’s

indictment to Counts IV and V, the allegation of “serious injury” in Count VIII is

insufficient to satisfy the “physical injury” element for Defendant’s habitual

misdemeanor assault charge.

In State v. Barnett, the defendant was indicted for one count of assault on a

female under N.C.G.S. § 14-33 and one count of habitual misdemeanor assault

11
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

under N.C.G.S. § 14-33.2. State v. Barnett, 245 N.C. App. 101, 111–12 (2016), rev’d

in part, 369 N.C. 298 (2016). The defendant’s first count, assault on a female,

alleged “physical injury” to the victim; however, the allegations contained in his

second count,

which charged [the defendant] with habitual
misdemeanor assault and properly referenced [the
defendant’s] two prior misdemeanor assaults that
occurred less than 15 years prior to date of his current
violation, did not include any language regarding [the
defendant’s] current charge of assault on a female
resulting in a physical injury, a necessary showing for a
[N.C.G.S.] § 14-33.2 violation.

Id. at 112. The defendant did not dispute the validity of his first count, which

alleged assault on a female. Id. at 110. However, he “argued that the second count

of the indictment fail[ed] to properly allege habitual misdemeanor assault because

it did not include . . . a physical injury.” Id. at 111. Although the count of habitual

misdemeanor assault did not contain the physical injury element, we held that the

defendant’s indictment was sufficient. Defendant’s first count, alleging assault on

a female, alleged physical injury; therefore, we held that count one supplied the

missing physical injury element of the count alleging habitual misdemeanor

assault. Id. at 113–14. Thus, if an allegation of physical injury from the assault

was alleged by the grand jury elsewhere in the indictment, we may impute this

element to the otherwise defective allegation of habitual misdemeanor assault in

12
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

Count V.

Defendant correctly observes that, unlike in Barnett, Count IV (assault on a

female) here did not include an allegation of physical injury. However, since we

may supplement the missing element of physical injury from another part of the

indictment, I continue my analysis to determine whether another count in the

indictment alleged physical injury.

The State argues that “[C]ount VIII of the indictment sufficiently sets out

the charge of habitual misdemeanor assault” because it “allege[s] an assault

‘inflicting serious injury. . . .’” I disagree. Count VIII of the indictment provides, in

pertinent part:

[Defendant] unlawfully and willfully did assault and
strike [Tanya], by hitting her shoulder, thereby inflicting
serious injury. The act was done in violation of N.C.G.S.
§ 14-33.2.

(Emphasis added).

Count VIII alleged “serious injury” and not “physical injury” as required by

N.C.G.S. § 14-33.2. We have observed that our Supreme Court “has not defined

‘serious injury’ for purposes of assault prosecutions, other than stating that ‘the

injury must be serious, but it must fall short of causing death’ and that ‘further

definition seems neither wise nor desirable.’” State v. McLean, 211 N.C. App. 321,

325 (2011) (marks and citation omitted). In State v. Everhardt, we held that “[t]he

term [‘]serious injury,’ under [N.C.G.S.] § 14-32(b), means physical or bodily injury

13
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

resulting from an assault with a deadly weapon.” State v. Everhardt, 96 N.C. App.

1, 12 (1989), aff’d, 326 N.C. 777 (1990). However, while not supplying a more

limited definition, our Supreme Court rejected this more restrictive equivocation.

Upon reviewing Everhardt, it held that the term “serious injury” may also

encompass mental injury. Everhardt, 326 N.C. at 781 (holding that “mental injury

will support the element of serious injury under N.C.G.S. § 14-32”).

While Everhardt analyzed only N.C.G.S. § 14-32(b), we have also applied its

definition of “serious injury” outside the § 14-32(b) context. See, e.g., State v. Lofton,

193 N.C. App. 364, 374 (2008) (applying the broader understanding of “serious

injury” discussed in Everhardt to N.C.G.S. § 14-32.1(e) and holding that “[b]ecause

‘serious injury’ may include serious mental injury . . . [defendant’s] testimony

regarding her mental state . . . is [] relevant”). As we have applied Everhardt’s

broader definition of “serious injury” beyond N.C.G.S. § 14-32(b), we must also

apply it here to reject the premise that “serious injury” only means “physical

injury.”

The State made no argument as to whether “physical injury” can be squarely

defined within our caselaw’s interpretation of “serious injury,” but rather

presupposes “serious injury” to be a viable substitute for “physical injury” for the

14
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

purposes of alleging habitual misdemeanor assault.3 Without more appearing on

the face of the indictment, the State’s implication that “physical injury” is per se

alleged within the use of the phrase “serious injury” is not supported by the broader

interpretation we must apply.

While our approach to evaluating indictments is to refrain from “hyper

technical scrutiny with respect to form[,]” In re S.R.S., 180 N.C. App. 151, 153

(2006), we must not abscond from our charge to apply governing caselaw and

relevant statutory provisions where the General Assembly uses unambiguous

language. The unambiguous language of N.C.G.S. § 14-33.2 states that “[a] person

commits the offense of habitual misdemeanor assault if that person violates any of

the provisions of [N.C.G.S.] § 14-33 and causes physical injury[.]” N.C.G.S. § 14-

33.2 (2021) (emphasis added). The broadening of the definition of “serious injury”

to include both mental and physical injury established that serious injury is not

synonymous with physical injury. Everhardt, 326 N.C. at 781. Count VIII of the

indictment provides that Defendant “inflict[ed] serious injury” by striking and

hitting Tanya on her shoulder. However, the indictment alone cannot make the

leap from “serious injury” to “physical injury.”

Here, the essential element of “physical injury” was not sufficiently alleged

3 The State also mentions Count VII in its brief, stating that “Count VII of the indictment

alleges a charge of [N.C.G.S.] § 14-33(c)(1), assault with a deadly weapon.” However, it makes no
further arguments about Count VII or how it supplements the “physical injury” element for a
habitual misdemeanor assault charge.

15
 STATE V. JACKSON

MURPHY, J., concurring in part and dissenting in part

in the indictment to satisfy a habitual misdemeanor assault charge. The grand jury

failed to allege “physical injury” for the purposes of indicting Defendant for habitual

misdemeanor assault pursuant to N.C.G.S. § 14-33.2. The defective indictment

failed to confer the trial court with subject matter jurisdiction over the charge of

habitual misdemeanor assault. Accordingly, I would vacate this conviction and

remand for a new sentencing hearing on Defendant’s conviction in file number 20

CRS 206791. See Barnett, 223 N.C. App. at 68 (marks omitted) (noting that the

“[l]ack of jurisdiction in the trial court due to a fatally defective indictment requires

the appellate court to arrest judgment or vacate any order entered without

authority”). I therefore respectfully dissent from that portion of the Majority’s

opinion.

16