                               NO. COA14-176

                    NORTH CAROLINA COURT OF APPEALS

                             Filed: 15 July 2014


STATE OF NORTH CAROLINA,
     Plaintiff,

    v.                                  Richmond County
                                        No. 12 CRS 52607
SHANEEQUAH NICOLE WALL,
     Defendant.


    Appeal by defendant from judgment entered 9 October 2013 by

Judge Mark E. Klass in Richmond County Superior Court.             Heard in

the Court of Appeals 3 June 2014.


    Attorney General Roy Cooper, by Senior              Deputy     Attorney
    General Robert T. Hargett, for the State.

    Michelle FormyDuval Lynch, for defendant.


    ELMORE, Judge.


    On 9 October 2013, a jury found Shaneequah Nicole Wall

(“defendant”) guilty of resisting a public officer.              The trial

court sentenced defendant to 45 days imprisonment, suspended,

and placed her on supervised probation for 12 months.            Defendant

gave notice of appeal in open court.        We hold that the Richmond

County Superior Court lacked legal authority and, therefore, was

without   subject   matter   jurisdiction   to   try   defendant    on   the
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offense alleged in the misdemeanor statement of charges when

defendant was appealing from the judgment entered in district

court after a conviction on a magistrate’s order.                       We vacate

defendant’s conviction.

                                I. BACKGROUND

    Based     on   the   record    evidence,     which      is   conflicting    on

occasion,   the    facts   of     this    case   are   as    follows:      On   18

September 2012, the Richmond County Sheriff’s Office received a

warrant for the arrest of William Wall, Sr. (“Wall Sr.”) and an

emergency child custody order for William Wall, Jr. (“Jr.”),

Wall Sr.’s minor child, from the Osceola County Sheriff’s Office

in Florida.    The child custody order was based on allegations of

abuse or neglect and indicated that Richmond County was to take

immediate custody of Jr., who was 20 months old.                    The custody

order stated that Jr. could be found at 127 Logan Park in the

city of Rockingham.

    Deputy Cory Jones (“Deputy Jones”) with the Richmond County

Sheriff’s Office was dispatched to the Logan Park address.                      As

Deputy Jones entered Wall Sr.’s neighborhood, he spotted Wall

Sr. driving out.         Deputy Jones stopped the truck and arrested

Wall Sr. Deputy Jones informed passenger Felicia Wall, (Wall

Sr.’s daughter) of the arrest warrant for her father and of the

child custody order for Jr.         Felicia Wall drove Wall Sr.’s truck
                                             -3-


to the Logan Park residence as Deputy Jones followed in a marked

patrol car.

     When he arrived at the residence, Deputy Jones stood in the

doorway and identified himself as a sheriff’s deputy to Rosa

Wall, Jr.’s paternal grandmother and the apparent home owner.

Deputy Jones informed Rosa Wall of the warrant and of the child

custody order.          Meg Demayo with the Richmond County Department

of   Social      Services       and    Lieutenant         Mike   Burns        (“Lieutenant

Burns”)    met    Deputy     Jones      at    the    residence.          Defendant       and

Felicia Wall were present as well.

     Lieutenant         Burns     testified        that     there      were    two    minor

children    in    the    home.        Lieutenant         Burns   asked    Rosa    Wall    to

identify Jr.       Initially, Rosa Wall said that Jr. was not in the

residence. However,          she later confirmed that Jr. was in the

residence,       that   he   was      “fine,”      and    that   he    was     “not   going

nowhere.”        The record discloses that defendant, Felicia Wall,

and Rosa Wall each refused to identify Jr. when asked to do so

by law enforcement.             Pointing to the child later identified as

Jr., Deputy Jones specifically asked defendant; “Whose baby is

that?”        Defendant      responded;         “His      mama    is     on    the    way.”

Lieutenant Burns warned:               “If I find out that either of these

two children in this home is in fact the child William Wall, Jr.

that I’m looking for, everybody in the residence will go to

jail.”      After       approximately        two     hours,      Florida       authorities
                                          -4-


transmitted a photograph of Jr. and the officers were able to

identify him and place him in DSS custody.

    The     video      footage    illustrates,       and    Deputy    Jones    admits,

that the officers never presented the emergency child custody

order to defendant, Rosa Wall, or Felicia Wall.                           Lieutenant

Burns testified that he had the emergency child custody order in

his possession; however, he stated that he did not feel it was

necessary    to       show   it   until   one   of    the    women    affirmatively

identified Jr.

    Defendant, Felicia Wall, and Rosa Wall were each arrested

based on their refusal to identify Jr.                     Lieutenant Burns told

the women; “We’re arresting you for resisting—for lying to us.”

On 6 December 2012, a magistrate’s order charged defendant with

resisting    a    public     officer,     §   14-223,      and   giving   fictitious

information to a public officer, § 20-29, for the 18 September

2012 incident.          Defendant was tried on the magistrate’s order

and found guilty of resisting a public officer on 6 December

2013.    The fictitious information charge was dismissed.

    Defendant appealed the district court judgment to Richmond

County Superior Court for a trial de novo.                   On 2 July 2013, the

State    filed    a    misdemeanor      statement     of    charges    in     superior

court.      Defendant was tried on the misdemeanor statement of

charges and found guilty of resisting a public officer on 9

October 2013.         Defendant now appeals.
                                 -5-


                            II. ANALYSIS

    Defendant   argues   that   the   superior   court   lacked   subject

matter jurisdiction to try her on a misdemeanor statement of

charges filed in superior court for an alleged 18 September 2012

violation of § 14-223 because defendant was tried and convicted

on a magistrate’s order in district court.       We agree.

    A “statement of charges” is governed, in relevant part, by

the following provisions of N.C. Gen. Stat. § 15A-922 (2013):

         (d) Statement of Charges upon Determination
         of Prosecutor.--The prosecutor may file a
         statement    of    charges    upon   his    own
         determination    at    any   time   prior    to
         arraignment in the district court.       It may
         charge the same offenses as the citation,
         criminal summons, warrant for arrest, or
         magistrate’s    order     or   additional    or
         different offenses.

         (e) Objection to Sufficiency of Criminal
         Summons; Warrant for Arrest or Magistrate’s
         Order as Pleading.--If the defendant by
         appropriate    motion    objects    to    the
         sufficiency of a criminal summons, warrant
         for arrest, or magistrate’s order as a
         pleading,   at   the   time   of   or   after
         arraignment in the district court or upon
         trial de novo in the superior court, and the
         judge    rules   that    the   pleading    is
         insufficient, the prosecutor may file a
         statement of charges, but a statement of
         charges filed pursuant to this authorization
         may not change the nature of the offense.

         (f) Amendment of Pleadings prior to or after
         Final Judgment.--A statement of charges,
         criminal   summons,   warrant  for   arrest,
         citation, or magistrate’s order may be
         amended at any time prior to or after final
         judgment when the amendment does not change
                                             -6-


              the nature of the offense charged.


N.C. Gen. Stat. § 15A-922 (2013).

      The crux of defendant’s issue is that the State’s filing of

the misdemeanor statement of charges was untimely and therefore

impermissible.       We agree.       Subsection (d) of N.C. Gen. Stat. §

15A-922    clearly      provides     that       “[t]he      prosecutor    may    file    a

statement of charges upon his own determination at                              any time

prior to arraignment in the district court.”                       After arraignment,

the   State    may    only   file        a   statement       of    charges     when    the

defendant (1) objects to the sufficiency of the criminal summons

and (2) the trial court rules that the pleading is in fact

insufficient.        N.C. Gen. Stat. § 15A-922(e).                  While subsection

(f) allows the charging instrument to be amended prior to or

after a final judgment is entered, this does not grant the State

authority to change the form of the charging instrument; i.e.,

the   State    cannot    “amend”     a        magistrate’s        order   by    filing   a

misdemeanor statement of charges.                    Doing so would change the

nature of the original pleading entirely. Accordingly, the State

has a limited window in which it may file a statement of charges

on its own accord, and that is prior to arraignment.

      To   further      illustrate       this      point,    we   look    to   State     v.

Killian, 61 N.C. App. 155, 158, 300 S.E.2d 257, 259 (1983), a

case in which the State similarly filed a statement of charges
                                                   -7-


in superior court after the defendant was tried and convicted on

a warrant in district court.                       On appeal, this Court vacated the

superior court’s judgment for want of jurisdiction on the basis

that    the    statement          of    charges          alleged      a      separate      statutory

violation than that charged in the warrant.                                    Id. at 158, 300

S.E.2d at 259.          However, assuming arguendo that the statement of

charges did not change the nature of the offense charged, this

Court       opined    that    the       State’s        filing      in      superior     court       was

nevertheless “untimely and thereby without legal authorization.”

Id.    at    157,     300    S.E.2d         at    259.      We     noted       that     the    record

contained        no     motion         by        the     defendant         objecting          to    the

sufficiency of the original warrant and held, “[t]he statement

of     charges        was    filed          by     the     prosecutor          ‘upon       his      own

determination’;             and    that          could     only       be      done      ‘prior        to

arraignment in the district court,’ not upon trial de novo on

appeal to superior court.”                   Id.

       Here, the State did not file the statement of charges prior

to defendant’s arraignment in district court.                                   As in Killian,

the    record       similarly          discloses         that    no       motion     was    made      by

defendant       objecting         to     the       sufficiency          of    the     magistrate’s

order.       Thus, the trial court was not afforded the opportunity

to    rule     on     whether      the       magistrate’s          order       was    sufficient.

Nonetheless, the prosecutor “upon his own determination” filed

the     misdemeanor          statement            of     charges        seven       months         after
                                   -8-


defendant    appealed   the   district   court   judgment   to   superior

court.      This filing was “untimely and thereby without legal

authorization.”    Thus, the superior court had no jurisdiction to

try defendant for the new offense alleged in the statement of

charges.     Defendant’s conviction must be vacated.         Defendant’s

remaining issues on appeal are moot.

    Vacated.

    Judges McGEE and HUNTER, Robert C., concur.
