An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA13-1327

                       NORTH CAROLINA COURT OF APPEALS

                                Filed:   1 July 2014

STATE OF NORTH CAROLINA


      v.                                     New Hanover County
                                             Nos. 12 CRS 59892, 13 CRS 40
KALMEAICE KAWANNA WILLIAMS



      Appeal by defendant from judgment entered 22 July 2013 by

Judge Kenneth F. Crow           in New Hanover     County Superior Court.

Heard in the Court of Appeals 19 March 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Melissa H. Taylor, for the State.

      Appellate  Defender   Staples  S.   Hughes,  by  Assistant
      Appellate Defender Jason Christopher Yoder, for defendant-
      appellant.


      McCULLOUGH, Judge.


      Defendant      Kalmeaice     Kawanna   Williams     appeals     from   his

conviction    of     habitual     misdemeanor    assault.      After    careful

review,    because    we   find    defendant’s    indictment    for    habitual
                                           -2-
misdemeanor      assault    to        be    facially     defective,     we     vacate

defendant’s conviction.

                                 I.        Background

      On 7 January 2013, defendant was indicted for second-degree

kidnapping in violation of N.C. Gen. Stat. § 14-39, assault on a

female in violation of N.C. Gen. Stat. § 14-33, and habitual

misdemeanor assault in violation of N.C. Gen. Stat. § 14-33.2.

      On   15    July,    2013,       defendant      pled   guilty     to    the   two

predicate misdemeanor assault on a female convictions listed on

the   indictment    for    the    purpose       of   the    habitual    misdemeanor

assault charge.

      Following a trial, on 22 July 2013, a jury found defendant

guilty of false imprisonment and assault on a female.                       Defendant

was sentenced to 120 days for his false imprisonment conviction.

At the expiration of the sentence for his false imprisonment

conviction, defendant was sentenced to serve 20 months to 33

months     for    his     habitual         misdemeanor      assault     conviction.

Defendant appeals.

                                 II.       Discussion

      Defendant’s sole argument on appeal is that the trial court

lacked subject matter jurisdiction to adjudicate the charge of

habitual misdemeanor assault where the indictment was facially

defective by failing to allege the element of “physical injury”
                               -3-
as required pursuant to N.C. Gen. Stat. § 14-33.2.   Based on the

reasons stated herein, we agree.

    It is well-established that “where an indictment is alleged

to be invalid on its face, thereby depriving the trial court of

its jurisdiction, a challenge to that indictment may be made at

any time, even if it was not contested in the trial court.”

State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000)

(citations omitted).

           North Carolina law has long provided that
           [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    a[c]quires   no
           jurisdiction [whatsoever], and if it assumes
           jurisdiction a trial and conviction are a
           nullity. In other words, an indictment must
           allege every element of an offense in order
           to confer subject matter jurisdiction on the
           court.

State v. Kelso, 187 N.C. App. 718, 722, 654 S.E.2d 28, 31 (2007)

(citations and quotation marks omitted).    “We review the issue

of insufficiency of an indictment under a de novo standard of

review.”   State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d

709, 712 (2008) (citation omitted).

    “Habitual misdemeanor assault is a substantive offense, not

a status to enhance a defendant’s sentence.”   State v. Garrison,

__ N.C. App. __, __, 736 S.E.2d 610, 612-13 (2013) (citation
                                      -4-
omitted).      N.C.   Gen.    Stat.     §   14-33.2,    entitled   “Habitual

misdemeanor assault[,]” provides as follows:

            A person commits the offense of habitual
            misdemeanor assault if that person violates
            any of the provisions of G.S. 14-33 and
            causes physical injury, or 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. Gen. Stat. § 14-33.2 (2013) (emphasis added).

            Assault on a female, a class A1 misdemeanor,
            is an offense included in N.C. Gen. Stat. §
            14-33 (2011).   In 2004, N.C. Gen. Stat. §
            14-33.2 was amended by N.C. Sess. Laws 2004-
            186, § 10.1 to specifically require that if
            the basis of a habitual misdemeanor assault
            charge is an offense under N.C. Gen. Stat. §
            14-33, there must also be a physical injury.

Garrison at __, 736 S.E.2d at 613.

    Based on the circumstances of the present case, to prove

defendant was guilty of habitual misdemeanor assault pursuant to

N.C. Gen. Stat. § 14-33.2, the State was required to allege a

physical injury in order to confer subject matter jurisdiction

on the trial court.          Here,    the State’s      habitual misdemeanor

assault indictment attempted to charge defendant with habitual

misdemeanor assault, but failed to state the essential element

of physical injury:

            AND THE JURORS FOR THE STATE UPON THEIR OATH
            present that on or about the date of the
                               -5-
          offense shown above and in the county named
          above the defendant named above unlawfully,
          willfully and feloniously did assault and
          strike Whitney Autry, a female person, by
          striking her in the chin with a closed fist.
          The defendant has been previously convicted
          of two or more felony or misdemeanor assault
          offenses. The defendant has been previously
          convicted of the misdemeanor assault of
          assault on a female, case number 06CR 55354,
          on 08/31/2006 in New Hanover County district
          court.   The defendant has been previously
          convicted of misdemeanor assault of assault
          on a Female, case number 10CR 54896, on
          06/03/2010, in New Hanover County district
          court.    The earlier of these convictions
          occurred no more than 15 years prior to the
          date of current violation.

(emphasis added).

    Based on the foregoing, we hold that the State’s failure to

allege   an   essential      element    of   the     offense   of   habitual

misdemeanor    assault    renders      defendant’s    indictment    facially

defective.    Accordingly, the trial court had no jurisdiction to

adjudicate    the   charge   for    habitual   misdemeanor     assault   and

defendant’s conviction on this charge is vacated.

    Vacated.

    Judges ELMORE and DAVIS concur.

    Report per Rule 30(e).
