State v. Brice

IN THE SUPREME COURT OF NORTH CAROLINA

No. 244PA16

Filed 3 November 2017

STATE OF NORTH CAROLINA

v.

SANDRA MESHELL BRICE

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 786 S.E.2d 812 (2016), vacating and

remanding a judgment entered on 12 February 2015 by Judge Michael D. Duncan in

Superior Court, Catawba County. Heard in the Supreme Court on 30 August 2017.

Joshua H. Stein, Attorney General, by Kristin J. Uicker, Assistant Attorney

General, for the State-appellant.

Glenn Gerding, Appellate Defender, by Daniel L. Spiegel, Assistant Appellate

Defender, for defendant-appellee.

ERVIN, Justice.

After defendant Sandra Meshell Brice was convicted of committing the felony

of habitual misdemeanor larceny, a unanimous panel of the Court of Appeals vacated

defendant’s conviction and remanded this case to the trial court for the entry of a new

judgment and resentencing based upon a misdemeanor larceny conviction on the

grounds that the indictment returned against defendant in this case was fatally

defective. We reverse the Court of Appeals’ decision.

STATE V. BRICE

Opinion of the Court

On 22 July 2013, the Catawba County grand jury returned a single-count bill

of indictment purporting to charge defendant with habitual misdemeanor larceny.

The charge against defendant came on for trial before the trial court and a jury during

the 9 February 2015 criminal session of the Superior Court, Catawba County. After

the jury was empaneled and prior to the making of the parties’ opening statements,

defendant admitted, outside the presence of the jury and after an appropriate

colloquy with the trial court, to having been convicted of the four prior larcenies

delineated in the indictment. On 12 February 2015, the jury returned a verdict

convicting defendant of habitual misdemeanor larceny. Based upon the jury’s verdict,

the trial court entered a judgment sentencing defendant to an active term of ten to

twenty-one months imprisonment, suspended defendant’s active sentence, and placed

defendant on supervised probation for a period of twenty-four months on the

condition that defendant comply with the usual terms and conditions of probation,

serve a seventy-five-day term of imprisonment, and pay a $300.00 fine, attorney’s

fees, and the costs. Defendant noted an appeal to the Court of Appeals from the trial

court’s judgment.

In her sole challenge to the trial court’s judgment before the Court of Appeals,

defendant argued that the indictment’s failure to comply with the requirements

spelled out in N.C.G.S. § 15A-928 deprived the trial court of “jurisdiction to enter

judgment and sentence against [defendant] for felony habitual misdemeanor

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Opinion of the Court

larceny,” so that her “conviction for habitual misdemeanor larceny must be vacated

and remanded for entry of judgment on misdemeanor larceny.”

The State, on the other hand, noted defendant’s failure to challenge the validity

of the indictment that had been returned for the purpose of charging her with

habitual misdemeanor larceny before the trial court and pointed out that defendant

had not contended that “the indictment fails to describe each element of the crime

with sufficient specificity” or that she had been “prejudiced in preparing her defense

as a result of the indictment.” Thus, in the State’s view, any “variation” between “the

strict requirements of N.C.[G.S.] § 15A-928” and the indictment returned against

defendant in this case “is not reversible” error. As a result, the State urged the Court

of Appeals to leave the trial court’s judgment undisturbed.

In vacating the trial court’s judgment and remanding this case to the Superior

Court, Catawba County, for resentencing based upon a conviction for misdemeanor,

rather than habitual misdemeanor, larceny, the Court of Appeals concluded that “an

indictment for habitual misdemeanor larceny is subject to the provisions of N.C.[G.S.]

§ 15A-928” and that, “[o]n its face, the indictment here failed to comply with” that

statutory provision. State v. Brice, ___ N.C. App. ___, ___, 786 S.E.2d 812, 815 (2016).

The Court of Appeals rejected the State’s argument in reliance upon the decision in

State v. Jernigan, 118 N.C. App. 240, 455 S.E.2d 163 (1995), in which the Court of

Appeals had held that noncompliance with the arraignment procedures set out in

N.C.G.S. § 15A-928(c) constituted harmless error given that the defendant, who had

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Opinion of the Court

stipulated to his prior convictions prior to trial, “was fully aware of the charges

against him . . . , understood his rights and the effect of the stipulation, and . . . was

in no way prejudiced by the failure of the court to formally arraign him and advise

him of his rights.” Brice, ___, N.C. App. at ___, 786 S.E.2d at 815 (quoting Jernigan,

118 N.C. App. at 245, 455 S.E.2d at 167). In reaching this result, the Court of Appeals

stated that, while “a formal arraignment under [N.C.G.S. §] 15A-928(c) is not a

matter of jurisdictional consequence,” the indictment requirements set out in

N.C.G.S. § 15A-928(b) had been held to be jurisdictional in State v. Williams, 153 N.C.

App. 192, 568 S.E.2d 890 (2002), disc. rev. improvidently allowed, 357 N.C. 45, 577

S.E.2d 618 (2003) (per curiam). Id. at ___, 786 S.E.2d at 815. As a result, since the

failure of the indictment returned against defendant in this case to comply with the

requirements of N.C.G.S. § 15A-928 deprived the trial court of jurisdiction to enter

judgment against defendant based upon a conviction for habitual misdemeanor

larceny, the Court of Appeals vacated defendant’s conviction for that offense and

remanded this case to the trial court for the entry of judgment and resentencing based

upon a conviction for misdemeanor, rather than habitual misdemeanor, larceny. Id.

at ___, 786 S.E.2d at 815.

The State sought discretionary review of the Court of Appeals’ decision by this

Court on the grounds that “bills of indictment [should not be quashed] for mere

informality or minor defects which do not affect the merits of the case,” quoting State

v. Brady, 237 N.C. 675, 679, 75 S.E.2d 791, 793 (1953), and that this Court “do[es]

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Opinion of the Court

not favor the practice of quashing an indictment or arresting a judgment for

informalities which could not possibly have been prejudicial to the rights of defendant

in the trial court,” quoting State v. Russell, 282 N.C. 240, 248, 192 S.E.2d 294, 299

(1972). According to the State, the Court of Appeals implicitly held in State v.

Stephens, 188 N.C. App. 286, 293, 655 S.E.2d 435, 439-40, disc. rev. denied, 362 N.C.

370, 662 S.E.2d 389 (2008), that “an indictment that alleges all the felony offense’s

essential elements, including the prior conviction, properly alleges the felony offense”

“despite not complying with [the] form requirements” set out in N.C.G.S. § 15A-

928(b). In the State’s view, the Court of Appeals erred by relying upon Williams,

which had been “wrongly decided.” Finally, the State asserted that, assuming that

noncompliance with N.C.G.S. § 15A-928 constituted a jurisdictional defect, the Court

of Appeals had erred by failing to simply arrest judgment given that the trial court

lacked jurisdiction to convict defendant of, and sentence defendant for, a

misdemeanor in this case.

Defendant, on the other hand, argued that compliance with N.C.G.S. § 15A-

928 “is no mere formality, but rather is the formal mechanism by which the purpose

of [N.C.G.S.] § 15A-928 is achieved.” “If a defendant is not apprised of the opportunity

to admit the prior convictions outside of the presence of the jury,” “the defendant will

be unable to avoid the certain prejudice that would result from evidence of prior

convictions being presented to the jury.” In defendant’s view, the State is requesting

the Court to disturb settled North Carolina law, in accordance with which “the statute

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Opinion of the Court

must be strictly followed in order to apprise [the] defendant of the offense for which

he is charged and to enable him to prepare an effective defense,” quoting State v.

Jackson, 306 N.C. 642, 652 n.2, 295 S.E.2d 383, 389 n.2 (1982). Finally, defendant

asserted that the remedy that the Court of Appeals afforded to defendant in this case

has been “applied . . . time and time again” and “should remain undisturbed.” This

Court granted the State’s discretionary review petition on 8 December 2016.

In seeking to persuade us to overturn the Court of Appeals’ decision, the State

points out that this Court has held that “[a]n indictment is sufficient if it charges all

essential elements of the offense with sufficient particularity to apprise the defendant

of the specific accusations against him and (1) will enable him to prepare his defense

and (2) will protect him against another prosecution for that same offense,” quoting

State v. Bowden, 272 N.C. 481, 483, 158 S.E.2d 493, 495 (1968), and, citing State v.

House, 295 N.C. 189, 200, 244 S.E.2d 654, 660 (1978), that noncompliance with

provisions couched in mandatory terms is not necessarily fatal to the validity of an

indictment. The State contends that a decision to invariably quash an indictment

under circumstances such as those present here would attribute “to the Legislature

an intent to paramount [sic] mere form over substance,” quoting House, 295 N.C. at

203, 244 S.E.2d at 662. As a result, the State argues that, given that “we are no

longer bound by the ‘ancient strict pleading requirements of the common law’ ” and

that “contemporary criminal pleadings requirements have been ‘designed to remove

from our law unnecessary technicalities which tend to obstruct justice,’ ” quoting

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Opinion of the Court

State v. Williams, 368 N.C. 620, 623, 781 S.E.2d 268, 271 (2016) (quoting State v.

Freeman, 314 N.C. 432, 436, 333 S.E.2d 743, 746 (1985)), “[t]his Court should hold

that a pleading that does not conform to [N.C.G.S. §] 15A-928’s form requirements is

not jurisdictionally defective for that reason alone.”

Defendant, on the other hand, contends that the failure of the indictment

returned against him in this case to separate the allegations setting out the

substantive offense from the allegations delineating defendant’s prior convictions

renders that indictment fatally defective and insufficient to confer jurisdiction upon

the trial court to enter judgment against defendant based upon an habitual

misdemeanor larceny conviction. The fact that N.C.G.S. § 15A-928 utilizes

mandatory terms such as “must” and “may not” in describing the manner in which

allegations concerning a defendant’s prior convictions should be set out indicates that

these requirements should be treated as jurisdictional in nature, particularly given

that the relevant statutory provisions do not explicitly state that noncompliance with

the provisions of N.C.G.S. § 15A-928 is not a jurisdictional defect and that the General

Assembly has failed to amend the relevant statutory provision to reflect the State’s

interpretation despite several Court of Appeals opinions finding that noncompliance

with the separate indictment provisions of N.C.G.S. § 15A-928 constitutes a fatal

defect.

The crime of larceny is a felony, without regard to the value

of the property in question, if the larceny is . . . [c]ommitted

after the defendant has been convicted in this State or in

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Opinion of the Court

another jurisdiction for any offense of larceny under this

section, or any offense deemed or punishable as larceny

under this section, or of any substantially similar offense

in any other jurisdiction, regardless of whether the prior

convictions were misdemeanors, felonies, or a combination

thereof, at least four times. A conviction shall not be

included in the four prior convictions required under this

subdivision unless the defendant was represented by

counsel or waived counsel at first appearance or otherwise

prior to trial or plea. If a person is convicted of more than

one offense of misdemeanor larceny in a single session of

district court, or in a single week of superior court or of a

court in another jurisdiction, only one of the convictions

may be used as a prior conviction under this subdivision;

except that convictions based upon offenses which occurred

in separate counties shall each count as a separate prior

conviction under this subdivision.

N.C.G.S. § 14-72(b)(6) (2015). As a result, a criminal defendant is guilty of the felony

of habitual misdemeanor larceny in the event that he or she “took the property of

another” and “carried it away” “without the owner’s consent” and “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) (citations omitted), overruled in part on other grounds by

State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 916 (2010), after having been

previously convicted of an eligible count of larceny on four prior occasions. N.C.G.S.

§ 14-72(b)(6).

N.C.G.S. § 15A-924 (a) provides, in pertinent part, that:

A criminal pleading 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

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Opinion of the Court

apprise the defendant or defendants of the conduct which

is the subject of the accusation.

N.C.G.S. § 15A-924(a)(5) (2015). “To be sufficient under our Constitution, an

indictment ‘must allege lucidly and accurately all the essential elements of the

offense endeavored to be charged.’ ” State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593,

600 (quoting State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953)), cert. denied,

539 U.S. 985, 124 S. Ct. 44, 156 L. Ed. 2d 702 (2003). “It is hornbook law that a valid

indictment is a condition precedent to the jurisdiction of the Superior Court to

determine the guilt or innocence of the defendant, and to give authority to the court

to render a valid judgment.” State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461

(1968) (citing, inter alia, N.C. Const. art. I, § 12). “A criminal pleading . . . is fatally

defective if it ‘fails to state some essential and necessary element of the offense of

which the defendant is found guilty.’ ” State v. Ellis, 368 N.C. 342, 344, 776 S.E.2d

675, 677 (2015) (quoting State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943)

(citations omitted)). “[W]here 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 (citations omitted), cert. denied, 531

U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498 (2000). “As to other less serious defects,

objection must be made by motion to quash the indictment or, in proper cases, a bill

of particulars may be demanded.” Gregory, 223 N.C. at 418, 27 S.E.2d at 142.

The indictment returned against defendant in this case alleged that:

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Opinion of the Court

The jurors for the State upon their oath present that

on or about the date of offense shown and in the county

named above [Sandra Meshell Brice] unlawfully, willfully,

and feloniously did steal, take, and carry away FIVE

PACKS OF STEAKS, the personal property of FOOD

LION, LLC, such property having a value of SEVENTY

DOLLARS ($70.00), and the defendant has had the

following four prior larceny convictions in which [s]he was

represented by counsel or waived counsel:

On or about MAY 8, 1996 the defendant committed the

misdemeanor of LARCENY in violation of the law of the

State of North Carolina, G.S. 14-72, and on or about

SEPTEMBER 10, 1996 the defendant was convicted of the

misdemeanor of LARCENY in the District Court of Lincoln

County, North Carolina; and that

On or about FEBRUARY 19, 1997, the defendant

committed the misdemeanor of LARCENY in violation of

the law of the State of North Carolina, G.S. 14-72, and on

or about JULY 29, 1997 the defendant was convicted of the

misdemeanor of LARCENY in the District Court of

Catawba County, North Carolina; and that

On or about JUNE 13, 2003 the defendant committed the

misdemeanor of LARCENY in violation of the law of the

State of North Carolina, G.S. 14-72, and on or about

OCTOBER 17, 2003 the defendant was convicted of the

misdemeanor of LARCENY in the District Court of

Catawba County, North Carolina; and that

On or about JULY 7, 2007 the defendant committed the

misdemeanor of LARCENY in violation of the law of the

State of North Carolina, G.S. 14-72, and on or about

SEPTEMBER 24, 2007 the defendant was convicted of the

misdemeanor of LARCENY in the District Court of

Catawba County, North Carolina.

A careful reading of the indictment returned against defendant in this case clearly

indicates that the Catawba County grand jury alleged that defendant had stolen,

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Opinion of the Court

taken, and carried away the property of another with the requisite intent after having

been previously convicted of misdemeanor larceny at times when she had either been

represented by or waived counsel in various North Carolina District Courts on four

separate occasions. As a result, given that the indictment returned against defendant

in this case alleged all of the essential elements of habitual misdemeanor larceny, it

sufficed to give the trial court jurisdiction over this case under the traditional test

utilized in evaluating the facial validity of a criminal pleading. On the other hand,

the indictment returned against defendant in this case unquestionably failed to

comply with the requirements of N.C.G.S. § 15A-928(a) and (b), which provide that,

in instances in which “the fact that the defendant has been previously convicted of an

offense raises an offense of lower grade to one of higher grade and thereby becomes

an element of the latter, an indictment or information for the higher offense may not

allege the previous conviction,” N.C.G.S. § 15A-928(a) (2015), and must, instead, “be

accompanied by a special indictment or information, filed with the principal pleading,

charging that the defendant was previously convicted of a specified offense,” or the

special indictment may be contained “in the principal indictment as a separate

count,” id. § 15A-928(b) (2015). As a result, the ultimate issue presented for our

consideration in this case is whether the fact that the indictment returned against

defendant in this case failed to comply with the separate indictment or separate count

requirement set out in N.C.G.S. § 15A-928 constituted a fatal defect sufficient to

deprive the trial court of jurisdiction to enter judgment against defendant.

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Opinion of the Court

Admittedly, this Court has stated on a number of occasions that, “[w]here

jurisdiction is statutory and the Legislature requires the Court to exercise its

jurisdiction in a certain manner, to follow a certain procedure, or otherwise subjects

the Court to certain limitations, an act of the Court beyond these limits is in excess

of its jurisdiction.” In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006)

(quoting Eudy v. Eudy, 288 N.C. 71, 75, 215 S.E.2d 782, 785 (1975), overruled on other

grounds by Quick v. Quick, 305 N.C. 446, 457-58, 290 S.E.2d 653, 661 (1982),

superseded in part by statute, N.C.G.S. § 50-13.4(f)(9) (1983)). The extent, if any, to

which a particular statutory provision creates a jurisdictional requirement hinges

upon the meaning of the relevant statutory provisions. In re D.S., 364 N.C. 184, 187,

694 S.E.2d 758, 760 (2010) (stating that “[o]ur principal task here is to interpret the

statute”). According to well-established North Carolina law, “[t]he primary rule of

construction of a statute is to ascertain the intent of the legislature and to carry out

such intention to the fullest extent.” Burgess v. Your House of Raleigh, Inc., 326 N.C.

205, 209, 388 S.E.2d 134, 137 (1990) (citation omitted). “The best indicia of [the

legislative] intent are the language of the statute . . . , the spirit of the act, and what

the act seeks to accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of Comm’rs, 299

N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citations omitted).

The statutory scheme created in N.C.G.S. § 15A-928 serves two important

purposes. State v. Ford, 71 N.C. App. 452, 454, 322 S.E.2d 431, 432 (1984) (stating

that the “purpose of [N.C.G.S. § 15A-928] is to insure that defendants are informed

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Opinion of the Court

of the prior convictions they are charged with and are given a fair opportunity to

either admit or deny them before the State’s evidence is concluded”). As an initial

matter, the provision set out in N.C.G.S. § 15A-928(b) requiring “a special indictment

or information” “charging that the defendant was previously convicted of a specified

offense” serves the purpose of ensuring that “the defendant has notice that he is to be

charged as a recidivist before pleading . . . , eliminating the possibility that he will

enter a guilty plea on the expectation that the maximum punishment he could receive

would be that provided for in the statute defining the present crime.” State v. Allen,

292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977) (quoting Harold Dubroff, Note,

Recidivist Procedures, 40 N.Y.U. L. Rev. 332, 348 (1965) [hereinafter Recidivist

Procedures]) (discussing the North Carolina Habitual Felons Act and noting, at 292

N.C. at 434, 233 S.E.2d at 587, the procedural similarities between that Act and the

provisions of N.C.G.S. § 15A-928).1 Secondly, the requirement set out in N.C.G.S.

§ 15A-928(a) and (b) that the defendant’s prior conviction be alleged in a special

indictment or information or in a separate count is intended to prevent “any prejudice

due to the introduction of evidence of prior convictions before the trier of guilt for the

1 This Court has stated, in dicta, that, “when [N.C.]G.S. § 15A-928 does apply, the

statute must be strictly followed.” Jackson, 306 N.C. at 652 n.2, 295 S.E.2d at 389 n.2. The

quoted statement was made in a case involving a special indictment alleging a prior

conviction that had been returned nearly two months after the indictment charging the

substantive offense. Id. at 652 n.2, 295 S.E.2d at 389 n.2. In stating that the indictment

charging the prior conviction or convictions “must be filed with the principal pleading,” id. at

652 n.2, 295 S.E.2d at 389 n.2, the Court was clearly referring to the notice-related concerns

sought to be addressed by N.C.G.S. § 15A-928.

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present offense.” Id. at 435, 233 S.E.2d at 588 (quoting Recidivist Procedures at 348).

The separate indictment requirement operates to prevent such prejudice using the

procedures prescribed in N.C.G.S. § 15A-928(c), which requires the trial court, out of

the presence of the jury, to “arraign the defendant upon the special indictment or

information” after advising him or her that “he [or she] may admit the previous

conviction alleged, deny it, or remain silent,” N.C.G.S. § 15A-928(c) (2015), with an

admission of the prior conviction element sufficing to preclude the admission of

evidence concerning the defendant’s prior conviction before the jury, id. § 15A-

928(c)(1), and with a denial of the prior conviction element sufficing to authorize “the

State [to] prove that element of the offense charged before the jury as a part of its

case,” id. § 15A-928(c)(2).

An examination of the language in which N.C.G.S. § 15A-928 is couched and

the purposes sought to be achieved by N.C.G.S. § 15A-928 do not persuade us that

noncompliance with the relevant statutory provisions constitutes a jurisdictional

defect. Although the separate indictment provisions contained in N.C.G.S. § 15A-928

are couched in mandatory terms, that fact, standing alone, does not make them

jurisdictional in nature. Cf. House, 295 N.C. at 200-03, 244 S.E.2d at 660-62 (stating

that the word “must” or “shall” in a statute does not always “indicate a legislative

intent to make a provision of the statute mandatory, and a failure to observe it fatal

to the validity of the purported action” and holding that, though N.C.G.S. § 15A-

644(a)(5) directs that an indictment “must contain” the grand jury foreman’s

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Opinion of the Court

signature “attesting the concurrence of 12 or more grand jurors in the finding of a

true bill of indictment,” an indictment lacking the express statement that “12 or more

grand jurors concurred in such finding” was nevertheless valid “where the foreman’s

statement upon the bill is clearly so intended and there is nothing to indicate the

contrary.”). Similarly, the notice and prejudice-related purposes that underlie

N.C.G.S. § 15A-928 are not the sort of goals typically sought to be achieved by the

imposition of additional jurisdictional requirements over and above those otherwise

required. Although the provision of sufficient notice does appear to have

jurisdictional overtones, a defendant can obtain sufficient notice of the exact nature

of the charge that has been lodged against him or her through compliance with the

traditional facial validity requirements set out in N.C.G.S. § 15A-924(a)(5) without

the necessity for compliance with the separate indictment provisions of N.C.G.S.

§ 15A-928. Similarly, compliance with the separate indictment requirement set out

in N.C.G.S. § 15A-928 is not absolutely necessary to ensure the absence of prejudice

to defendant stemming from the disclosure of defendant’s prior convictions to the jury

given that defendant was separately arraigned on the prior conviction allegations in

this case as required by N.C.G.S. § 15A-928(c), admitted to the prior convictions, and

was convicted by a jury that had no knowledge of her prior larceny convictions. As a

result, a careful examination of the language in which N.C.G.S. § 15A-928 is couched,

coupled with an analysis of the purposes sought to be served by the enactment of the

relevant statutory language, persuades us that the separate indictment provision

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contained in N.C.G.S. § 15A-928 is not a jurisdictional issue that defendant was

entitled to raise on appeal without having lodged an appropriate objection or

otherwise sought relief on the basis of that claim before the trial court.2

In response to questions posed during oral argument, defendant asserted that

there were only two categories of indictment-related error—facial defects that

deprived the trial court of jurisdiction and errors for which no relief could be afforded

even if the alleged defect in the indictment was brought to the trial court’s attention

by objection, a motion to dismiss or quash, or otherwise. See, e.g., State v. Cheek, 307

N.C. 552, 555, 299 S.E.2d 633, 636 (1983) (rejecting the defendant’s argument that

the omission of “with force and arms” rendered a rape indictment fatally defective);

State v. Corbett, 307 N.C. 169, 173-75, 297 S.E.2d 553, 557-58 (1982) (same); State v.

Dudley, 182 N.C. 822, 825, 109 S.E. 63, 65 (1921) (stating that, while “[i]t may have

been the better form to have added to the bill that the alleged default was also

‘contrary to the statute in such case made and provided,’ but this, if it be a defect, is

one cured in express terms by our Statute of Jeofails”); State v. Sykes, 104 N.C. 694,

698-99, 10 S.E. 191, 192-93 (1889) (opining that “the grounds assigned in support of

the motion to quash are untenable” given that “it was not necessary that the affidavit

or warrant should conclude ‘against the statute’ ”); State v. Howard, 92 N.C. 772, 778

2 Although defendant asserts that similar language contained in the statutory

provisions governing the sentencing of habitual felons was held to be jurisdictional in State

v. Patton, 342 N.C. 633, 635, 466 S.E.2d 708, 709-10 (1996), we do not understand Patton to

involve a jurisdictional holding.

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(1885) (holding that it was not necessary for an indictment for murder to allege that

the “prisoner, not having the fear of God before his eyes, but being moved and seduced

by the instigation of the devil” or that the “deceased was in the peace of God and the

State”).3 In advancing this argument, however, defendant has overlooked a third

category of indictment-related errors involving deficiencies that must be brought to

the trial court’s attention as a prerequisite for the assertion of that indictment-related

claim on appeal. See, e.g., State v. Green, 266 N.C. 785, 788-89, 147 S.E.2d 377, 379-

80 (1966) (per curiam) (stating that the defendant, “by going to trial on this warrant

without making a motion to quash, waived any duplicity in the warrant” (citing State

v. Best, 265 N.C. 477, 144 S.E.2d 416 (1965))); State v. Strouth, 266 N.C. 340, 342,

145 S.E.2d 852, 853 (1966) (observing that, “by going to trial without making a motion

to quash, defendant waived any duplicity in the warrant” (quoting Best, 265 N.C. at

481, 144 S.E.2d at 418)); State v. Merritt, 244 N.C. 687, 688, 94 S.E.2d 825, 826 (1956)

(stating that “[t]he defendant could have required separate counts, one charging

operation of a motor vehicle while under the influence of intoxicating liquor” and “the

other charging the operation while under the influence of narcotics,” but, “[b]y going

to trial without making a motion to quash, [the defendant] waived any duplicity

3 A number of the decisions cited at this point in the text rely upon N.C.G.S. § 15-155,

which is entitled “Defects which do not vitiate” and which provides, in pertinent part, that

“[n]o judgment upon any indictment for felony or misdemeanor . . . shall be stayed or reversed

for the want of the averment of any matter unnecessary to be proved, nor for omission of the

words . . . ‘with force and arms,’ . . . nor for omission of the words ‘against the form of the

statute’ or ‘against the form of the statutes.’ ”

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STATE V. BRICE

Opinion of the Court

which might exist in the bill” (citing multiple cases)). The Court of Appeals applied

a similar analysis in evaluating claims arising from noncompliance with the separate

indictment provisions of N.C.G.S. § 15A-928 in State v. Sullivan, 111 N.C. App. 441,

442, 432 S.E.2d. 376, 377 (1993), in which the defendant successfully filed a “motion

to strike the surplus language” from an indictment that violated the separate

pleading requirement set out in N.C.G.S. § 15A-928, and Stephens, 188 N.C. App. at

288, 293, 655 S.E.2d at 437, 440, in which the Court of Appeals upheld the trial court’s

decision to allow the State to amend an indictment in order to ensure compliance with

N.C.G.S. § 15A-928 by separating the substantive allegations from the allegations

concerning the defendant’s prior convictions. As a result, we hold that the claim that

defendant has sought to present on appeal in this case is similar to other sorts of

claims which, while not involving challenges to noncompliance with formalities that

have little practical purpose, do involve deviations from statutory requirements that

attempt to effectuate significant legislative policy goals and, for that reason, may well

support an award of appellate relief in appropriate cases in the event that those

claims are properly preserved for purposes of appellate review.

In this case, however, defendant did not challenge before the trial court the

failure of the indictment returned against her to comply with the separate indictment

provision set out in N.C.G.S. § 15A-928. For that reason, given that the claim that

she has presented for our consideration is not jurisdictional in nature, she is not

entitled to seek relief based upon that indictment-related deficiency for the first time

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Opinion of the Court

on appeal.4 As a result, we reverse the decision of the Court of Appeals and instruct

that court to reinstate the judgment of the trial court.

REVERSED.

For the reasons set forth in the text of this opinion, the Court of Appeals’ decision in

4

Williams, 153 N.C. App. 192, 568 S.E.2d 890, is also overruled.

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