                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-708

                                  Filed: 19 April 2016

Surry County, Nos. 13 CRS 651–52, 13 CRS 52914

STATE OF NORTH CAROLINA

               v.

JUAN FITZGERALD ALLEN


         Appeal by defendant from judgments entered 23 January 2015 by Judge R.

Stuart Albright in Surry County Superior Court. Heard in the Court of Appeals 17

November 2015.


         Attorney General Roy Cooper, by Assistant Attorney General Tamika L.
         Henderson, for the State.

         Appellate Defender Staples Hughes, by James R. Grant, for defendant-
         appellant.


         BRYANT, Judge.


         Where defendant was tried without objection and convicted on a misdemeanor

citation in district court, appealed the conviction for a trial de novo in superior court

and was convicted by jury on the same misdemeanor citation, again without objection

to the citation, defendant’s challenge to the jurisdiction of the trial court is without

merit.

         On 27 July 2013, defendant Juan Fitzgerald Allen was issued North Carolina

Uniform Citations charging him with willfully operating a motor vehicle on a street

or highway/public vehicular area (1) while subject to an impairing substance, (2)
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                                  Opinion of the Court



while his drivers’ license was revoked, (3) while displaying an expired registration

plate knowing the same to be expired, (4) without having a current electronic

inspection, such vehicle requiring such an inspection, and (5) for transporting an open

container of fortified wine or spirituous liquor. Defendant submitted to a chemical

analysis of his breath approximately one hour after his arrest and registered a 0.23

blood alcohol level. The record indicates that a bench trial was held in Surry County

District Court followed by a trial de novo commenced on 21 January 2015, during the

criminal session in Surry County Superior Court, the Honorable Stuart Albright,

Judge presiding.

      During a pre-trial conference in superior court, the State made an

unchallenged oral motion before the trial court to join for trial the charges of

transporting fortified wine or spirituous liquor without being in an unopened original

container, driving while impaired, and driving while license revoked. The State took

a voluntary dismissal on charges of driving with an expired registration and no

vehicle inspection. The matter proceeded to trial before a jury.

      Following the presentation of all evidence and the trial court’s instruction to

the jury, the jury returned guilty verdicts against defendant for impaired driving,

driving a motor vehicle on a highway while his driver’s license was revoked, and

transporting within the passenger area of a motor vehicle spirituous liquor in other

than the manufacturer’s unopened original container. The jury further found as an



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aggravating factor that “[a]t the time of the offense, . . . defendant’s license was

revoked because of impaired driving.” Based on the jury’s finding of the aggravating

factor, the trial court arrested judgment on the offense of driving a motor vehicle on

a highway while his driver’s license was revoked. In accordance with the remaining

jury verdicts, the trial court entered judgment against defendant for the offense of

impaired driving and sentenced him to an active term of two years. Judgment was

entered against defendant for transporting an open container of spirituous liquor, for

which he was sentenced to an active term of twenty days, to be served concurrent

with his DWI sentence. Defendant entered written notice of appeal.

                     _____________________________________________

      On appeal, defendant argues the trial court lacked jurisdiction to try him for

transporting an open container of spirituous liquor, a misdemeanor, when the

charging citation failed to allege an essential element of that offense. Specifically,

defendant contends that the charging citation was fatally defective as it failed to

allege that the open container was transported in the passenger area of defendant’s

vehicle. We disagree.

      “There can be no trial, conviction, or punishment for a crime without a formal

and sufficient accusation. In the absence of an accusation the court acquires no

jurisdiction whatever, and if it assumes jurisdiction a trial and conviction are a

nullity.” McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17–18 (1966) (citations



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and quotation marks omitted). “[A] citation . . . serves as the pleading of the State

for a misdemeanor prosecuted in the district court, unless the prosecutor files a

statement of charges, or there is objection to trial on a citation.” N.C. Gen. Stat. §

15A-922(a) (2015). “A citation is a directive, issued by a law enforcement officer or

other person authorized by statute, that a person appear in court and answer a

misdemeanor or infraction charge or charges.” Id. § 15A-302(a) (2015). “The citation

must: (1) [i]dentify the crime charged, including the date, and where material,

identify the property and other persons involved[.]” Id. § 15A-302(c).

      Initially, we note that a defendant may object to a trial on a citation; “[a]

defendant charged in a citation with a criminal offense may by appropriate motion

require that the offense be charged in a new pleading.” Id. § 15A-922(c). However,

this Court has held that a defendant may not challenge the derivative jurisdiction of

the superior court to try a misdemeanor offense on a citation, where that challenge

was not raised before the district court. See State v. Phillips, 149 N.C. App. 310, 318,

560 S.E.2d 852, 857 (2002) (“[A] defendant's objection to trial by citation must be

asserted in the court of original jurisdiction, in this case, the district court. See State

v. Monroe, 57 N.C. App. 597, 599, 292 S.E.2d 21, 22 (1982) . . . . Thus, . . . ‘[o]nce

jurisdiction had been established and [the] defendant had been tried in district court,

. . . he was no longer in a position to assert his statutory right to object to trial on

citation when he appealed to superior court.’ Id.”).



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                                    Opinion of the Court



      Defendant appeals from the conviction by jury of a misdemeanor allowed by

his de novo appeal to superior court. “[T]he superior court has jurisdiction to try a

misdemeanor . . . [w]hen a misdemeanor conviction is appealed to the superior court

for trial de novo . . . .” N.C. Gen. Stat. § 7A-271(a)(5) (2015). The record does not

indicate that defendant—tried and convicted in district court before his appeal to

superior court for a trial de novo—challenged the charges in the citation during

proceedings in the district court, or the superior court.          Now before this Court,

defendant raises this challenge to the jurisdiction of the trial courts for the first time.

We acknowledge defendant is allowed to challenge jurisdiction for the first time on

appeal. See N.C. R. App. P. 10(a)(1) (2015) (“[W]hether the court had jurisdiction over

the subject matter, and whether a criminal charge is sufficient in law, may be made

the basis of an issue presented on appeal.”).              However, the ability to raise a

jurisdictional challenge at any time does not ensure that the jurisdictional challenge

has merit.

      Defendant argues that “[a] citation, like a warrant or an indictment, may serve

as a pleading in a criminal case and must therefore allege lucidly and accurately all

the essential elements of the [crime] . . . charged.” However, defendant fails to direct

our attention to any opinion from this Court or other authority equating the

requirements for a valid citation with those of a valid indictment, and we find none.

Compare id. § 15A-302(c) (“The citation must: (1) Identify the crime charged,



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including the date, and where material, identify the property and other persons

involved[.]”), with id. § 15A-644(a)(3) (“An indictment must contain: . . . (3) Criminal

charges pleaded as provided in Article 49 of [Chapter 15A], Pleadings and Joinder[.]”);

see also State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003) (“An indictment,

as referred to in [N.C. Const. art. I, § 22] . . . , is a written accusation of a crime drawn

up by the public prosecuting attorney and submitted to the grand jury, and by them

found and presented on oath or affirmation as a true bill. To be sufficient under our

Constitution, an indictment must allege lucidly and accurately all the essential

elements of the offense endeavored to be charged.” (citation and quotation marks

omitted)); State v. Jones, 157 N.C. App. 472, 477, 579 S.E.2d 408, 411 (2003) (“[A]

citation is not an indictment[.]”).

       On 27 July 2013, defendant was issued a Uniform Citation by a law

enforcement officer with the Mt. Airy Police Department: “Defendant did unlawfully

and willfully operate a (motor) vehicle on a (street or highway) (public vehicular area)

transport open container of fortified wine/spirituous liquor unopened original

container G.S. 18B-401(a).”           Section 401 of General Statutes Chapter 18B

(“Regulation of Alcoholic Beverages”) states that “[i]t shall be unlawful for a person

to transport fortified wine or spirituous liquor in the passenger area of a motor vehicle

in other than the manufacturer's unopened original container. . . . Violation of this




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                                  Opinion of the Court



subsection shall constitute a Class 3 misdemeanor.” N.C. Gen. Stat. § 18B-401(a)

(2015).

       Defendant argues that the citation failed to state that he transported the

fortified wine or spirituous liquor “in the passenger area” of his motor vehicle and as

such, is fatally defective to confer jurisdiction. Defendant contends that the citation

failed to include an essential element of the crime charged and that a citation, which

may be issued by a law enforcement officer, see N.C.G.S. § 15A-302(b) (“An officer

may issue a citation to any person who he has probable cause to believe has

committed a misdemeanor or infraction.”), is to be held to the same standard as an

indictment issued by a grand jury, see N.C. Gen. Stat. § 15A-641(a) (2015) (“Any

indictment is a written accusation by a grand jury, filed with a superior court,

charging a person with the commission of one or more criminal offenses.”).

Defendant’s contention does not comport with the statutory law of North Carolina,

where the standard for issuance of an indictment is not precisely the same as a

citation.

       Nevertheless, in pertinent part, General Statutes, section 15A-302 states that

a citation must “[i]dentify the crime charged.” N.C.G.S. § 15A-302(c). As noted above,

the citation issued to defendant on 27 July 2013 sufficiently identified the crime

charged—transporting an open container of fortified wine or spirituous liquor while

operating a motor vehicle—and put defendant on notice of the charge. Defendant was



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tried on the citation at issue without objection in the district court, and by a jury in

the superior court on a trial de novo. Thus, once jurisdiction was established and

defendant was tried in the district court, “he was no longer in a position to assert his

statutory right to object to trial on citation . . . .” Monroe, 57 N.C. App. at 599, 292

S.E.2d at 22. Therefore, defendant’s challenge to the trial court’s jurisdiction is

without merit.

      NO ERROR.

      Judges GEER and McCULLOUGH concur.




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