in the Court of Appeals 8 June 2017.
by defendant from judgment entered 15 June 2016 by Judge G.
Bryan Collins, Jr. in Wake County No. 15CRS701096 Superior
Attorney General Joshua H. Stein, by Assistant Attorney
General Carole Biggers, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender James R. Grant, for defendant-appellant.
Lamont Jones ("Defendant") appeals from the
judgment entered following his conviction for operating a
motor vehicle with an open container of alcohol while alcohol
remained in his system. Defendant alleges the trial court
lacked subject matter jurisdiction, arguing the citation
issued to Defendant failed to state facts establishing each
of the elements of the statutory offense. We disagree.
& Procedural Background
January 4, 2015, Officer Donnie Johnson with the Raleigh
Police Department stopped a vehicle driven by Defendant on
New Bern Avenue. Officer Johnson estimated Defendant's
speed to be approximately sixty-five miles per hour in a
forty-five mile-per-hour zone. Officer Johnson approached
Defendant's vehicle and noticed an open can of beer in
the center console of Defendant's vehicle. After
determining Defendant was not impaired, Officer Johnson
issued Defendant a citation for speeding and operating a
vehicle with an open container of alcohol in the car, while
alcohol remained in his system. The citation read as follows:
The officer named below has probable cause to believe that on
or about Sunday, the 04 day of January, 2015 at 10:16PM in
[Wake] [C]ounty . . . [Defendant] did unlawfully and
willfully OPERATE A MOTOR VEHICLE ON A STREET OR HIGHWAY AT A
SPEED OF 62 MPH IN A 45 MPH ZONE. (G.S. 20-141(J1))
and on or about Sunday, the 04 day of January, 2015
at 10:16PM in [Wake] [C]ounty . . . [Defendant] did
unlawfully and willfully WITH AN OPEN CONTAINER OF ALCOHOLIC
BEVERAGE AFTER DRINKING. (G.S. 20-138.7(A))[.]
(Emphasis added). In addition, the officer's comments
contained the following: "OPEN COORS LIGHT IN CENTER
CONSOLE. HALF CONSUMED, STILL WITH CONDENSATION ON IT. . . .
PULLED OUT OF DONALD ROSS DR[.] AND SPED UP TO 62MPH. PURSUED
FOR NEARLY 1/2 MILE BEFORE SLOWING DOWN [IN FRONT OF] WAKE
was convicted of both offenses in District Court, and
appealed the conviction to Superior Court. At trial in
Superior Court, Defendant made a motion to dismiss the open
container charge at the close of the State's evidence,
arguing that the citation was "fatally defective"
and the trial court lacked jurisdiction. Defendant asserted
that the citation failed to include an essential element of
an open container offense: operating a motor vehicle while on
a public street or highway. The trial court, citing State
v. Allen, ___ N.C.App. ___, 783 S.E.2d 799 (2016),
denied Defendant's motion. The jury found Defendant
guilty of the open container charge and not guilty of
speeding. Defendant timely filed notice of appeal.
North Carolina Constitution states, "Except in
misdemeanor cases initiated in the District Court Division,
no person shall be put to answer any criminal charge but by
indictment, presentment, or impeachment. But any person, when
represented by counsel, may, under such regulations as the
General Assembly shall prescribe, waive indictment in
noncapital cases." N.C. Const. art. I, § 22. A
"valid indictment returned by a legally constituted
grand jury" is required for a court to have
jurisdiction. State v. Yoes, 271 N.C. 616, 630, 157
S.E.2d 386, 398 (1967) (citations and quotation marks
"[t]he General Assembly may . . . provide for other
means of trial for misdemeanors, with the right of appeal for
trial de novo." N.C. Const. art. I, § 24.
Superior Court Division "has original general
jurisdiction throughout the State except as otherwise
provided by the General Assembly; and the General
Assembly is authorized by general law to prescribe the
jurisdiction and powers of the district courts."
State v. Wall, 271 N.C. 675, 680, 157 S.E.2d 363,
366 (1967) (emphasis in original). The General Assembly has
indeed delineated the jurisdiction and procedure for trial of
misdemeanors in the district courts, and provided for the
right of appeal of those matters for trial de novo
in the superior courts.
Carolina General Statute § 7A-270 (2015) provides that
"[g]eneral jurisdiction for the trial of criminal
actions is vested in the superior court and the district
court divisions of the General Court of Justice." The
district court division has "exclusive, original
jurisdiction" of misdemeanors, N.C. Gen Stat. §
7A-272(a) (2015), while superior courts, with limited
exception, have "exclusive, original jurisdiction over
all criminal actions not assigned to the district court
division[.]" N.C. Gen Stat. § 7A-271(a) (2015).
was issued a citation for misdemeanor offenses and directed
to appear in Wake County District Court. A citation directs a
defendant to "appear in court and answer a misdemeanor
or infraction charge or charges." N.C. Gen. Stat. §
15A-302(a) (2015). A law enforcement officer may issue a
citation when he has probable cause to believe the individual
cited committed an infraction or misdemeanor offense. N.C.
Gen. Stat. § 15A-302(b) (2015). For a citation to be
valid, it 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
(4) Cite the person . . . to appear in a designated court, at
a designated time and date.
N. C. Gen. Stat. § 15A-302(c) (2015).
official commentary to Article 49, entitled Pleadings and
Joinder, contains a primer on various criminal pleadings in
North Carolina. N.C. Gen. Stat. ch. 15A, art. 49 official
commentary (2015). The commentary notes that misdemeanor
cases initiated by warrant or criminal summons require a
finding of probable cause and a "statement of the
crime." Id. It is the "statement of the
crime" set forth in warrants and criminal summons that
constitutes the "pleading" for misdemeanor criminal
cases. Id. Citations, however, are treated
differently. According to the commentary, a citation simply
needs to identify the crime charged.
It should be noted that the citation (G.S. 15A-302) requires
only that the crime be "identified, " less than is
required in the other processes. This is a reasonable
difference, since it will be prepared by an officer on the
scene. It still may be used as the pleading, but rather
than get into sufficiency of the pleading in such a case the
Commission simply gives the defendant the right to object and
require a more formal pleading. G.S. 15A-922(c).
Id. (emphasis added). See also N.C. Gen.
Stat. § 15A-302 official commentary (2015)
("[I]n certain circumstances the citation can
serve as the pleading upon which trial is based. See G.S.
15A-922 . . . ." (emphasis added)).
extent there was a deficiency in the citation, Defendant had
the right to object to trial on the citation by filing a
A defendant charged in a citation with a criminal offense may
by appropriate motion require that the offense be charged in
a new pleading. The prosecutor must then file a statement of
charges unless it appears that a criminal summons or a
warrant for arrest should be secured in order to insure the
attendance of the defendant, and in addition serve as the new
N.C. Gen. Stat. §15A-922(c) (2015). The statement of
charges, summons, or warrant may then be subjected to the
scrutiny argued for by Defendant. However, a defendant must
file his or her objection to the citation in the district
defendant in State v. Allen, ___ N.C.App. ___, ___,
783 S.E.2d 799, 799 (2016) was charged by citation with,
among other offenses, transporting an open container of
alcohol. Defendant was convicted by a jury and, on appeal, he
argued that the citation failed to allege all essential
elements of the offense, depriving the court of jurisdiction.
Id. at, 783 S.E.2d at 800. This Court held that
because the citation put the defendant on notice and met the
statutory requirements of N.C. Gen. Stat. § 15A-302, his
failure to object to the citation pursuant to N.C. Gen. Stat.
§ 15A-922(c) precluded his challenge to jurisdiction.
Id. at ___, 783 S.E.2d at 801. The Court also
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, 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[.]").
Id. at ___, 783 S.E.2d at 800-01.
in State v. Monroe, 57 N.C.App. 597, 598, 292 S.E.2d
21, 21-22 (1982), the defendant argued that a jurisdictional
defect existed for his charges of driving under the influence
and driving while license revoked. Defendant filed a motion
pursuant to Section 15A-922(c) in Superior Court.
Id. This Court held that
[h]ad defendant filed his motion prior to his trial at
district court, the statute would indeed have precluded his
trial on the citation alone. . . . [But] [o]nce jurisdiction
had been established and defendant had been tried in district
court, therefore, 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. at 598-99, 292 S.E.2d at 22. See also State
v. Phillips, 149 N.C.App. 310, 318, 560 S.E.2d 852, 857
("[The] defendant's objection to trial by citation
must be asserted in the court of original jurisdiction, in
this case, the district court." (citation omitted)),