              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA 15-1163

                                 Filed: 5 July 2016

Randolph County, Nos. 11 CRS 226, 11 CRS 52761

STATE OF NORTH CAROLINA,

             v.

KELVIN LEANDER SELLERS, Defendant.


      Appeal by Defendant from judgments entered 2 April 2013 by Judge L. Todd

Burke and Judge V. Bradford Long in Randolph County Superior Court. Heard in

the Court of Appeals 9 March 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
      for the State.

      Kimberly P. Hoppin, for Defendant-Appellant.


      HUNTER, JR., Robert N., Judge.


      Defendant appeals from judgments entered 2 April 2013 by Judges L. Todd

Burke and V. Bradford Long after a jury convicted him of financial card theft,

possession of stolen property, and the status of being an habitual felon. Our review

of the indictment reveals the indictment did not contain all of the elements of

possession of stolen property. Therefore, we vacate the judgment as it pertains to

Defendant’s conviction for possession of stolen property. Defendant contends the trial

court erred in denying his motion to dismiss the charges of financial card theft

because the State failed to present sufficient evidence of those offenses. Defendant
                                   STATE V. SELLERS

                                   Opinion of the Court



also argues he was denied the effective assistance of counsel, though he did not file a

motion for appropriate relief with the trial court. We hold the trial court did not err

in part, but we vacate the conviction of possession of stolen goods, and dismiss the

ineffective assistance of counsel claims without prejudice for Defendant to file a

motion for appropriate relief with the trial court.


                     I. Factual and Procedural Background

      On 3 October 2011, a grand jury charged Defendant with breaking and

entering a motor vehicle, financial card theft, and possession of stolen property. For

the charge of possession of stolen property, the indictment reads as follows:

             And the jurors for the State upon their oath present that
             on or about the date(s) of offense shown and in the county
             named above the defendant named above unlawfully,
             willfully, and feloniously did possess one handbag
             containing personal items, one wallet, one Wachovia
             debit/credit card, one social security card, one check book,
             and $30.00 in United States currency.

Defendant’s case came for a jury trial 2 April 2013 in superior court. The State’s

evidence tended to show the following.

      Sabrina McMasters, a service manager for Wells Fargo, testified as follows:

On 12 May 2011, while taking her daughter to daycare in Trinity, North Carolina,

from her home in Greensboro, it began to rain. At approximately 8 a.m., she parked

in a small parking lot in front of the building. Because of the rain, she rushed to get

her daughter inside of the daycare center which took five to eight minutes.


                                          -2-
                                  STATE V. SELLERS

                                   Opinion of the Court



      On her return, the glove box was open and her pocketbook, containing her

driver’s license, checkbook, social security card, house keys, pictures of her daughter,

and a debit card, was missing. McMasters ran into the daycare office and called the

police. Approximately ten minutes later, Officer Andrews arrived.

      Billy Andrews, a police officer for the City of Archdale, responded to a larceny

call at Trendel Children’s Center. When he arrived at 8:20 a.m., he saw McMasters

standing next to her vehicle, a white Dodge Durango, crying. McMasters told him

her pocketbook, containing bank cards, two checkbooks, and three social security

cards was stolen.

      After this conversation, McMasters called her bank to report her debit card

had been stolen. The bank’s records showed recent purchases on her card at a gas

station, The Pantry, and Food Lion. McMasters drove to The Pantry, where she spoke

with the owner, Andrew Lee. After she explained her circumstances, she searched

around the store, but she did not find her pocketbook or any of its contents. She then

drove to Food Lion, where she walked around the premises to search for her

pocketbook. She found nothing.

      McMasters told Officer Andrews her debit card was used that morning. The

bank reported someone swiped McMasters’ debit card at Food Lion at 8:16 a.m. and

subsequently at The Pantry around 8:34 a.m. to purchase gas and to make a cash

withdrawal. Officer Andrews testified Suzie Sellers, a daycare employee, informed



                                          -3-
                                 STATE V. SELLERS

                                 Opinion of the Court



him she saw a white man in his forties that morning sitting across the street from

the daycare and smoking a cigarette. No other daycare employees reported any

unusual activity at or around the daycare that morning.

      Later that afternoon, David Jones, a sergeant in investigations with the City

of Archdale, began investigating McMasters’ file. His investigation revealed someone

swiped McMasters’ debit card at a Food Lion at 8:16 a.m. for $114. This Food Lion is

located one-half mile from Defendant’s home. At 8:34 a.m., the debit card was at The

Pantry for $40.01 to buy gasoline. Someone then attempted to use the card inside

the store to make a withdrawal from the ATM, but that withdrawal was unsuccessful.

      Detective Jones obtained a surveillance video from The Pantry dated 12 May

2011 and played a copy of the video for the jury. The video is not contained in the

record on appeal. The next day, Detective Jones went to Defendant’s house, and

questioned him about these events. Defendant explained he was home alone that

day, and had been home alone for two weeks due to a medical issue. Hanging on the

banister just inside the front door of Defendant’s townhome, Detective Jones saw a

green baseball cap. He recognized the cap from the surveillance video from The

Pantry. During this discussion, Detective Jones obtained a lottery ticket from the

Defendant’s person which was purchased at 10 a.m. on 13 May 2011, during the time

which Defendant said he did not leave his home. Detective Jones did not attempt to

obtain surveillance video from Food Lion because “Food Lion is one of the tougher



                                        -4-
                                 STATE V. SELLERS

                                 Opinion of the Court



businesses to get video from and to work with.” He said it generally takes six months

to one year to obtain video from Food Lion.

      Describing the video from The Pantry, Detective Jones explained Defendant

placed two fruit drinks on the counter in front of Lee. In the video, Defendant

attempted to pay. At that time, Lee and Defendant discussed tornado damage in

Alabama and scratch off tickets. Defendant asked for a $100 gift card, but Lee

refused because he would only accept cash. Lee told Defendant he needed to use the

ATM. At that time, the time stamp on the video showed it was 8:34 a.m. Defendant

walked away from the counter and out of the screen, presumably toward the ATM.

Defendant left the store without returning to the counter to make a purchase.

      The State rested.    At that time, Defendant moved to dismiss all charges

because the State failed to meet its burden. The court denied Defendant’s motion.

      Defendant testified on his own behalf. Defendant works part-time at Kohl’s

and Bitlocks and is a pastor at the Second Chance Community Mission. Defendant

had prostate surgery 27 April 2011, and returned to the doctor to have his staples

removed 4 May 2011.

      Defendant went to The Pantry on the morning of 12 May 2011, shortly after

his wife left for work. Defendant missed Mother’s Day because of his surgery, so he

went to The Pantry to get his wife a gift card as well as a drink and a newspaper for

himself.   At the register, Defendant spoke with Lee, who he knows personally.



                                        -5-
                                  STATE V. SELLERS

                                  Opinion of the Court



Defendant goes to The Pantry every Thursday or Friday to cash his check. When Lee

told him he could not purchase a gift card unless he paid with cash, Defendant left

the store through the back door near the drink machine. Defendant drove home and

remained at home for the rest of the day. On cross-examination, Defendant agreed

he misled the police by telling them he did not leave his house that day. The defense

rested.

      Lee, the owner of The Pantry, testified for the State in rebuttal.          Lee

remembered Defendant coming into his store on 12 May 2011.              He remembers

Defendant attempting to use someone else’s card that day, but the transaction was

denied. Lee knows Defendant, whose first name is Kelvin. The name on the card

was not Kelvin, but he does not remember the name on the card.

      The Defendant renewed his motion to dismiss at the close of all of the evidence.

The trial court granted Defendant’s motion as to breaking and entering a motor

vehicle, but denied the motion as to possession of stolen goods and financial card

theft. The jury returned guilty verdicts for financial card theft and misdemeanor

possession of stolen goods.

      Subsequently, the trial court dismissed the jury. The court stated:

             At this juncture it’s a transcript of plea to fill out whether
             or not you are – attained a habitual felon status. I will be
             perfectly honest with you. You can contest that if you
             wanted to. You can contest it and say I am not a habitual
             felon. State’s going to bring a clerk up or either he is going
             to – the DA’s going to admit your prior convictions where


                                         -6-
                                   STATE V. SELLERS

                                   Opinion of the Court



             you have been charged with an offense, convicted of an
             offense, charged with another offense, convicted of it,
             charged with another offense, and then convicted of it.

             We can have a hearing on that or you can just fill out a
             transcript of the plea acknowledging or admitting or
             pleading guilty to being a habitual felon and then the
             Court’s going to sentence you. It’s up to you.

             You want to go ahead and admit that you are a habitual
             felon or do you want to have a trial on that?

Defendant’s trial attorney, Biggs, accepted the plea on behalf of Defendant. Then,

the following exchange occurred:

             The Court: Are you satisfied with your lawyer’s services?

             Defendant: At this point right now going to prison I am not
             satisfied.

             The Court: Whether you are satisfied or not, do you still
             want to enter this plea to being habitual felon.

             Defendant: Yes.

Defendant stipulated there was a factual basis for the plea. Judge L. Todd Burke

entered judgment against Defendant on 2 April 2013, sentencing him to 76 to 104

months imprisonment. The same day, Judge V. Bradford Long entered a corrected

judgment against Defendant, correcting the maximum sentence to 101 months.

Defendant asked for an appellate defender, but did not file a timely written notice of

appeal.

                                   II. Jurisdiction



                                          -7-
                                   STATE V. SELLERS

                                   Opinion of the Court



      Defendant filed a pro se handwritten petition for writ of certiorari on 27 March

2015. This Court granted certiorari for the purpose of “reviewing the judgment

entered on 2 April 2013 by Judge L. Todd Burke.” We amend our grant of certiorari

to include review of the judgment entered 2 April 2013 by Judge V. Bradford Long, a

judgment entered to correct a clerical error in sentencing from the previous judgment

entered by Judge L. Todd Burke.

                              III. Standard of Review

      This Court reviews the denial of a motion to dismiss de novo. State v. Smith,

186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Upon a defendant’s motion for

dismissal, the question for the trial court is “whether there is substantial evidence (1)

of each essential element of the offense charged, or of a lesser offense included

therein, and (2) of defendant’s being the perpetrator of such offense. If so, the motion

is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000)

(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied,

531 U.S. 890, 148 L. Ed. 2d. 150 (2000). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). Upon review of a

motion to dismiss, we review all of the evidence, including circumstantial evidence,

in the light most favorable to the State. State v. Mann, 355 N.C. 294, 301, 560 S.E.2d

776, 781 (2002), cert. denied, 537 U.S. 10085, 154 L. Ed. 2d 403 (2002).



                                          -8-
                                  STATE V. SELLERS

                                  Opinion of the Court



      We also review the sufficiency of an indictment de novo. State v. McKoy, 196

N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). Where an indictment is allegedly

facially invalid, the indictment may be challenged at any time, even if it was

uncontested in the trial court. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326,

341 (2000), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000).

                                    IV. Analysis

                             A. Financial Card Theft

      A person is guilty of financial transaction card theft if he “[t]akes, obtains or

withholds a financial transaction card from the person, possession, custody or control

of another without the cardholder’s consent and with the intent to use it[.]” N.C. Gen.

Stat. § 14-113.9(a)(1) (2015). Defendant contends the evidence was insufficient to

prove Defendant took or obtained Ms. McMasters’ financial transaction card with the

intent to use it. The surveillance video, Defendant argues, places Defendant in The

Pantry at the time the card was used, but does not show him using the ATM.

      The theft charges here relate to a card stolen from McMasters, the card’s

rightful owner. The evidence presented at trial tended to show that someone stole

the card from McMasters’ car the morning of 12 May 2011. The same day, someone

other than McMasters swiped the card at Food Lion and The Pantry. The State

presented surveillance video from The Pantry showing Defendant in the store at the

time the card was swiped. Lee testified Defendant attempted to use a card with



                                         -9-
                                   STATE V. SELLERS

                                   Opinion of the Court



another person’s name on its face. Viewing the evidence in the light most favorable

to the State, the State presented sufficient evidence Defendant obtained the card from

McMasters without her consent and with intent to use the card. The trial court did

not err by denying the Defendant’s motion to dismiss and allowing the charge to

proceed to the jury.

                          B. Possession of Stolen Goods

      As with all courts, both trial and appellate, the initial duty of a judge is to

determine whether the court has jurisdiction. Whether it is by motion to dismiss

from one of the parties or by the court sua sponte, this initial responsibility of the

court stems from the duty of the courts to provide the efficient and fair administration

of justice. If the parties to a litigation are put to the expense of a trial on issues in

which the court lacks the authority to determine, the time and cost of the proceedings

and other scarce judicial resources are misapplied.

      In a trial or appellate court setting, the burden of establishing jurisdiction is

placed upon the party seeking to invoke the trial court’s jurisdiction. See Marriott v.

Chatham County, 187 N.C. App. 491, 494, 654 S.E.2d 13, 16 (2007), appeal denied,

362 N.C. 472, 666 S.E.2d 122 (2008). “[I]t is [appellant’s] burden to produce a record

establishing the jurisdiction of the court from which appeal is taken, and his failure

to do so subjects [the] appeal to dismissal.” State v. Phillips, 149 N.C. App. 310, 313–

314, 560 S.E.2d 852, 855 (2002). “When the record shows a lack of jurisdiction in the



                                          - 10 -
                                  STATE V. SELLERS

                                  Opinion of the Court



lower court, the appropriate action on the part of the appellate court is to arrest

judgment or vacate any order entered without authority.” State v. Felmet, 302 N.C.

173, 176, 273 S.E.2d 708, 711 (1981). “When the record is silent and the appellate

court is unable to determine whether the court below had jurisdiction, the appeal

should be dismissed.” Id. at 176, 273 S.E.2d at 711.

      A court must have subject matter jurisdiction in order to decide a case. In re

T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006). “Subject matter jurisdiction is

the indispensable foundation upon which valid judicial decisions rest, and in its

absence a court has no power to act[.]” Id. (citing Hart v. Thomasville Motors, Inc.,

244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956)). As a result, subject matter jurisdiction

may be raised at any time, whether at trial or on appeal, ex mero motu. See In re

S.F., 190 N.C. App. 779, 781–782, 660 S.E.2d 924, 926 (2008). “A party may not waive

jurisdiction, and a court has inherent power to inquire into, and determine, whether

it has jurisdiction and to dismiss an action ex mero motu when subject matter

jurisdiction is lacking.” Reece v. Forga, 138 N.C. App. 703, 705, 531 S.E.2d 881, 882

(2000).

      “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.” N.C. Const. art. 1, § 22. An indictment must charge the “essential

elements of the offense” to confer subject matter jurisdiction. State v. Snyder, 343



                                         - 11 -
                                    STATE V. SELLERS

                                    Opinion of the Court



N.C. 61, 65, 468 S.E.2d 221, 224 (1996) (citation omitted). “[T]he evidence in a

criminal case must correspond with the allegations of the indictment which are

essential and material to charge the offense.” State v. Walston, 140 N.C. App. 327,

334, 536 S.E.2d 630, 635 (2000). The purpose of an indictment is to give defendant

reasonable notice of the charges against him so that he may prepare for his upcoming

trial. State v. Campbell, __ N.C. __, __, 772 S.E.2d 440, 443 (2015) (citing State v.

Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981)). “North Carolina law has

long provided that there can be no trial, conviction, or punishment for a crime without

a formal and sufficient accusation.” State v. Marshall, 188 N.C. App. 744, 748, 656

S.E.2d 709, 712 (2008) (citation and internal quotation marks omitted).

      Knowing possession of stolen property valued at not more than $1000 is a

misdemeanor. N.C. Gen. Stat. § 14-71.1, 14-72(a) (2015). The elements of possession

of stolen goods are: “(1) possession of personal property; (2) which has been stolen, (3)

the possessor knowing or having reasonable grounds to believe the property to have

been stolen; and (4) the possessor acting with a dishonest purpose.” State v. Tanner,

364 N.C. 229, 232, 695 S.E.2d 97, 100 (2010) (quoting State v. Perry, 305 N.C. 225,

233, 287 S.E.2d 810, 815 (1982)).

      Here, the indictment states: “[T]he defendant named above unlawfully,

willfully and feloniously did possess one handbag containing personal items, one

wallet, one Wachovia debit/credit card, one social security card, one check book, and



                                           - 12 -
                                   STATE V. SELLERS

                                   Opinion of the Court



$30.00 in United States currency.” The indictment does not allege the essential

elements that the listed personal property was stolen or that Defendant knew or had

reason to know the property was stolen, creating a facial defect in the indictment.

Accordingly, Defendant’s conviction for possession of stolen goods must be vacated.

                       C. Ineffective Assistance of Counsel

      Lastly, Defendant contends the final judgment should be vacated because he

received ineffective assistance of counsel. Generally, claims of ineffective assistance

of counsel should be considered through motions for appropriate relief and not

directly on appeal. State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001)

(citations omitted). “Our Supreme Court has instructed that should the reviewing

court determine the [ineffective assistance of counsel] claims have been prematurely

asserted on direct appeal, it shall dismiss those claims without prejudice to the

defendant's rights to reassert them during a subsequent MAR proceeding.” Id. at

554, 557 S.E.2d at 547 (internal quotation marks and citation omitted). Therefore,

we dismiss this claim without prejudice to the right of Defendant to file a motion for

appropriate relief with the trial court.

                                    V. Conclusion

      For the foregoing reasons, we find no error in part, vacate in part, and dismiss

in part without prejudice.

      NO ERROR IN PART; VACATE IN PART; DISMISS IN PART.



                                           - 13 -
                      STATE V. SELLERS

                      Opinion of the Court



Judges ELMORE and DAVIS concur.




                             - 14 -
