{ "id": 9249084, "name": "STATE OF NORTH CAROLINA v. CHRIS WILLIAMS", "name_abbreviation": "State v. Williams", "decision_date": "2002-09-17", "docket_number": "No. COA01-1400", "first_page": "192", "last_page": "196", "citations": [ { "type": "official", "cite": "153 N.C. App. 192" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "515 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "904", "parenthetical": "citing N.C.R. App. P. 10(c)(4), 28 (a),(b)(5)" } ], "opinion_index": 0 }, { "cite": "350 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131924 ], "year": 1999, "pin_cites": [ { "page": "514-15", "parenthetical": "citing N.C.R. App. P. 10(c)(4), 28 (a),(b)(5)" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0483-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "547 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135632, 135690, 135877, 135600 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0384-03", "/nc/353/0384-01", "/nc/353/0384-04", "/nc/353/0384-02" ] }, { "cite": "539 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "48" }, { "page": "48" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 32", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439431 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "37-38" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0032-01" ] }, { "cite": "273 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "302 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564272 ], "year": 1981, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0173-01" ] }, { "cite": "432 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "836", "parenthetical": "quoting State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981)" } ], "opinion_index": 0 }, { "cite": "334 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531340 ], "year": 1993, "pin_cites": [ { "page": "175-76", "parenthetical": "quoting State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0169-01" ] }, { "cite": "183 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569495 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0442-01" ] }, { "cite": "462 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "citing State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971)" } ], "opinion_index": 0 }, { "cite": "341 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793121, 793060, 793106, 793175, 793112 ], "year": 1995, "pin_cites": [ { "parenthetical": "citing State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0653-03", "/nc/341/0653-02", "/nc/341/0653-05", "/nc/341/0653-01", "/nc/341/0653-04" ] }, { "cite": "453 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "195", "parenthetical": "citing State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971)" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526276 ], "year": 1995, "pin_cites": [ { "page": "717", "parenthetical": "citing State v. Waddell, 279 N.C. 442, 183 S.E.2d 644 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0713-01" ] }, { "cite": "432 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "377-78" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522481 ], "year": 1993, "pin_cites": [ { "page": "442-44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0441-01" ] }, { "cite": "231 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "266", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "291 N.C. 586", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558813 ], "year": 1977, "pin_cites": [ { "page": "592", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0586-01" ] }, { "cite": "270 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "301 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564503 ], "year": 1980, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0164-01" ] }, { "cite": "170 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "916" } ], "opinion_index": 0 }, { "cite": "276 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560017 ], "year": 1969, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0060-01" ] } ], "analysis": { "cardinality": 508, "char_count": 9256, "ocr_confidence": 0.748, "pagerank": { "raw": 6.076401022782515e-07, "percentile": 0.9553014480767026 }, "sha256": "381434eb98329cc6a288e50bd53e11f51f7452f805973a92bd4e704a90415038", "simhash": "1:862fba4276eb1ec7", "word_count": 1523 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHRIS WILLIAMS" ], "opinions": [ { "text": "TYSON, Judge.\nChris Williams (\u201cdefendant\u201d) appeals from a judgment entered after a jury convicted him of assault on a female and felonious habitual misdemeanor assault. We vacate defendant\u2019s conviction of felonious habitual misdemeanor assault because a special accompanying indictment was required and not rendered. We remand for entry of judgment on defendant\u2019s conviction of assault on a female.\nI. Facts\nThe State\u2019s 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.\nWhile 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.\nMs. 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.\nA 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 \u201cfeloniously 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.\u201d At the close of evidence, the court instructed the jury on the elements of assault on a female. The jury rendered a guilty verdict.\nThe 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\u2019s 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\u2019s 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.\nII. Issues\nDefendant 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. \u00a7 15A-1213 in describing the offense with which defendant was charged as \u201cfelonious assault\u201d.\nITT. Jurisdiction\nDefendant 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.\nA 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).\nWe hold that the indictment was insufficient to charge defendant with the felony of habitual misdemeanor assault. N.C.G.S. \u00a7 15A-928(b) (2001) requires a \u201cspecial accompanying indictment\u201d 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. \u00a7 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.\nThe 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\u2019s prima facie case for the felony of habitual misdemeanor assault. \u201c \u2018When 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.\u2019 \u201d 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.\nIV. Prejudicial Error in the Judge\u2019s Pre-trial Remarks\nDefendant alleges prejudicial error for the trial judge to denominate the charge a \u201cfelonious assault\u201d when summarizing the case in his pre-trial remarks made before the jury was impaneled. This remark was made before the trial began and before the bifurcation of the trial. After the jury was impaneled, the State referred to the charge simply as \u201cassault.\u201d The judge properly instructed the jury on the charge of assault on a female during the first phase of the trial. The only mention of \u201cfelony\u201d during the assault phase of the trial was when defendant testified to having been charged with a felony.\nDefendant failed to preserve this assignment of error. Defendant failed to object at trial. Error may not be asserted upon appellate review unless the error has been brought to the trial court\u2019s attention by motion or objection. State v. Choppy, 141 N.C. App. 32, 37-38, 539 S.E.2d 44, 48 (2000), disc. review denied, 353 N.C. 384, 547 S.E.2d 817 (2001). Where no objection is made, defendant carries the burden of establishing the right to review. Choppy, 141 N.C. App. at 38, 539 S.E.2d at 48.\nDefendant also failed to assign plain error. Plain error is fundamental error amounting to a denial of the accused\u2019s basic rights. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Defendant must \u201cspecifically and distinctly\u201d contend in his brief and argue in his assignments of error that an error amounted to plain error. State v. Nobles, 350 N.C. 483, 514-15, 515 S.E.2d 885, 904 (1999) (citing N.C.R. App. P. 10(c)(4), 28 (a),(b)(5)).\nHere, defendant did not raise plain error in his assignments of error or argue plain error in his brief. The issue was not preserved or argued and is not reviewable by this Court.\nWe find error in the indictment charging habitual assault as invalid due to lack of a special accompanying indictment as required by N.C.G.S. \u00a7 15A-928(b). We vacate defendant\u2019s conviction of the felony of habitual misdemeanor assault, and remand for entry of judgment on defendant\u2019s conviction for assault on a female.\nJudgment vacated and remanded for entry of judgment for defendant\u2019s conviction of assault on a female.\nJudges MARTIN and THOMAS concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper; by Assistant Attorney General Mary Penny Thompson, for the State/Appellee.", "Paul Pooley, for Defendant/Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHRIS WILLIAMS\nNo. COA01-1400\n(Filed 17 September 2002)\n1. Assault\u2014 habitual misdemeanor assault \u2014 no accompanying indictment\nAn indictment did not sufficiently charge defendant with the felony of habitual misdemeanor assault where the indictment only charged assault on a female and there was no accompanying indictment as required by N.C.G.S. \u00a7 15A-928(b). There was no jurisdiction for the felony charge without a valid indictment and, even though defendant failed to move to dismiss, the appropriate action when the record shows a lack of jurisdiction is to vacate or arrest judgment.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to object at trial \u2014 failure to argue plain error\nDefendant did not preserve for appellate review an issue regarding the judge\u2019s pre-trial remarks where defendant failed to object at trial and did not raise plain error in his assignments of error or argue plain error in his brief.\nAppeal by defendant from a judgment entered 17 April 2001 by Judge William C. Griffin, Jr. in Pasquotank County Superior Court. Heard in the Court of Appeals on 22 August 2002.\nAttorney General Roy Cooper; by Assistant Attorney General Mary Penny Thompson, for the State/Appellee.\nPaul Pooley, for Defendant/Appellant." }, "file_name": "0192-01", "first_page_order": 222, "last_page_order": 226 }