An unpublished opinion of the North Carolina Court of Appeals does not constitute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



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

                                               McDowell County
      v.
                                               No. 12 CRS 1514

BARBARA ANN BARR


      Appeal by defendant from judgment entered 28 June 2013 by

Judge Gary Gavenus in McDowell County Superior Court.                     Heard in

the Court of Appeals 23 April 2014.


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

      Gilda C. Rodriguez for Defendant.


      ERVIN, Judge.


      Defendant      Barbara     Ann    Barr     appeals     from    a    judgment

sentencing her to a term of 45 days imprisonment and ordering

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

misdemeanor larceny.           On appeal, Defendant contends that the

trial court erred by rejecting the plea agreement that she had

reached with the State without providing any explanation for its

decision to act in that manner and that Defendant was provided

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

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

to have her case continued following the rejection of her guilty

plea.     After careful consideration of Defendant’s challenges to

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

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

should be vacated given that the criminal pleading upon which

the trial court’s judgment rests was fatally defective.

                            I. Factual Background

                             A. Substantive Facts

                             1. State’s Evidence

      On the afternoon of 24 October 2012, Defendant entered a

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

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

protection assistant at the store, initially noticed Defendant

because she was carrying a large pocketbook and an empty diaper

bag and was engaging in behavior that suggested that she might

be involved in unlawful conduct.                After making this initial

observation, Ms. Bartlett continued to watch Defendant closely

and even came within a few feet of her.

      While   she    watched    Defendant,     Ms.    Bartlett     noticed       that

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

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

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

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

two of them remained for approximately five minutes.

    After Defendant exited the restroom, she handed the child

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

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

Defendant   place   the   artificial   toenails,   iPhone   case,   and

highlighters into her pocketbook and walk to the cash register.

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

the diaper bag and child while Defendant paid for other items

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

store.

    After paying for these additional items, Defendant walked

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

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

Defendant what she had observed.       After Defendant denied having

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

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

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

that Defendant should accompany her to the store office.            At

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

Bartlett,     in     the       presence     of     her    assistant       manager,       told

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

from the store without making payment from her pocketbook.                                  At

that    point,     Defendant       produced        the    highlighters,         the     iPhone

case, and the artificial toenails while claiming that she had

gotten the toenails from a Family Dollar store at an earlier

time.        After       Defendant        stated         that    she      did    not      have

identification,          Ms.     Bartlett        told     Defendant       that    she     was

required to call the police.

       Sergeant     Mike       Hensley      of    the     Marion    Police       Department

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

Although    Sergeant       Hensley        saw    the     items     that    Defendant       had

removed from her pocketbook, he did not search                              or interview

Defendant.       After Ms. Bartlett created a receipt indicating the

total value of the items in question and confirmed that the

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

Hensley    took    a     copy    of   the    receipt       and   cited     Defendant       for

misdemeanor larceny.

                               2. Defendant’s Evidence

       Defendant went to the Marion Walmart store on 24 October

2012 with her boyfriend, Shannon Mosteller, and her youngest

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

had   purchased   them   on   the     preceding    evening    and   planned   to

return the phone case and the artificial toenails.                      However,

after arriving at the store, Defendant decided to keep these

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

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

Bartlett, who identified herself as a Walmart employee and told

Defendant, without providing any further explanation, that she

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

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

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

Department arrived at the Walmart store as well.

      After reaching the office, Ms. Bartlett asked Defendant to

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

into the restroom.       After Corporal Barrier brought Mr. Mosteller

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

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

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

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

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

stolen property.

      Although she initially declined to allow the officers to

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

charged criminally if she maintained her initial position with

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

pointed    out    the     highlighters,       phone    case,    and           artificial

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

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

Hensley cited Defendant for misdemeanor larceny.

                              B. Procedural History

    On     24    October      2012,    Defendant      was    issued       a     citation

purporting to charge her with misdemeanor larceny.                            On 20 May

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

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

District Court entered a judgment sentencing Defendant to a term

of 45 days imprisonment and then suspended that sentence and

placed    Defendant      on   unsupervised       probation    for     a       period    of

twelve months on the condition that Defendant comply with the

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

of community service.          Defendant noted an appeal to the McDowell

County Superior Court from the District Court’s judgment.

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

evidence    concerning        the     items    allegedly      seized          from     her

pocketbook suppressed.          The charge against Defendant came on for

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

hearing testimony and argument concerning the issues raised by

Defendant’s      suppression        motion,     the     trial     court     denied

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

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

District Court for compliance with the District Court judgment.

      After discussions with the prosecutor, Defendant’s trial

counsel informed the trial court that Defendant and the State

had   reached    an     agreement   under     which    Defendant    would   plead

guilty to misdemeanor larceny, receive a suspended sentence, and

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

rejected the proposed plea agreement without comment.                        After

hearing the testimony of the parties’ witnesses, the arguments

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

returned a verdict convicting Defendant of misdemeanor larceny.

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

Defendant to 45 days imprisonment and requiring Defendant to pay

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

Court from the trial court’s judgment.1

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

    As an initial matter, we are required to determine whether

the trial court       had jurisdiction to enter the judgment from

which   Defendant    has   appealed.           Although     neither     party    has

advanced   any     contention    with    respect       to   this    issue,     well-

established      North   Carolina       law     provides     that,      “where    an

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

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

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

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

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

conviction,   or    punishment    for     a    crime   without      a   formal   and

sufficient accusation.          In the absence of an accusation the

court   acquires    no   jurisdiction         whatever,     and    if   it   assumes

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

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

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

Court may raise the question of subject matter jurisdiction on

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


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

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

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

whether the trial court had jurisdiction over this case before

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

challenges to the trial court’s judgment.

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

officer or other person authorized by statute, that a person

appear in court and answer a misdemeanor or infraction charge or

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

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

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

give defendant sufficient notice of the charge against him, to

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

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

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

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

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

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

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

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

pleading,     including          a    citation       used        for    that    purpose,        must

contain “[a] plain and concise factual statement in each count

which,    without        allegations          of    an    evidentiary          nature,    asserts

facts supporting every element of a criminal offense and the

defendant’s commission thereof with sufficient precision clearly

to apprise the defendant or defendants of the conduct which is

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

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

criminal pleading] is invalid and prevents the trial court from

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

to state some essential and necessary element of the offense of

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

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

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

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

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

would not have sufficed to authorize the trial court to exercise

jurisdiction        over       this    case    in     the       event   that     it    failed     to

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

924(a)(5).

    “The essential elements of larceny are that the defendant:

            (1)    took the property of another;

            (2)    carried it away;

            (3)    without the owner’s consent; and

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

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

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

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

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

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

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

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

case law on larceny indictments makes clear that the property

alleged to have been taken must be identified ‘with certainty

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

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

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

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

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

for larceny must describe the article stolen with a certainty

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

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

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

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

criminal pleading, including a citation, that purports to charge

the defendant with committing larceny must specify the property

that the defendant is alleged to have stolen.

      The citation issued to Defendant in this case alleged that

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

the owner of its use permanently items belonging to Wal Mart

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

a   cursory    examination          of   the   citation     that   was   issued   to

Defendant, the criminal pleading utilized in this case does not

identify the property that Defendant is alleged to have stolen.

For that reason, the charging instrument utilized in this case

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

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

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

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

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

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

defective and did not suffice to provide the trial court with

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

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

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

should have allowed the motion to dismiss on the grounds that

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

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

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

                         III. Conclusion

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

since the citation utilized as the criminal pleading in this

case failed to adequately charge the commission of a criminal

offense, the trial court lacked jurisdiction to enter judgment

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

judgment should be, and hereby is, vacated.

     VACATED.

     Judges GEER and STEPHENS concur.

     Report per Rule 30(e).




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