State v. Capps , 265 N.C. App. 491 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-386
Filed: 21 May 2019
McDowell County, Nos. 16 CRS 50513-14
STATE OF NORTH CAROLINA
v.
BEN LEE CAPPS
Appeal by defendant from judgments entered 24 October 2017 by Judge
Stanley L. Allen in McDowell County Superior Court. Heard in the Court of Appeals
14 February 2019.
Attorney General Joshua H. Stein, by Associate Attorney General Vinston
Walton, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant-appellant.
ZACHARY, Judge.
Ben Lee Capps (“Defendant”) appeals from judgments entered upon jury
verdicts finding him guilty of misdemeanor larceny, injury to personal property, and
reckless driving to endanger. However, the trial court lacked jurisdiction to try
Defendant on offenses alleged in the misdemeanor statement of charges. Thus, we
vacate the judgment stemming from the charges alleged in the misdemeanor
statement of charges and remand to the trial court to resentence Defendant for his
remaining conviction.
STATE V. CAPPS
Opinion of the Court
I. Background
On 19 April 2016, a McDowell County magistrate issued arrest warrants
charging Defendant with misdemeanor larceny and injury to personal property in file
number 16 CRS 50513 and reckless driving to endanger in 16 CRS 50514. Defendant
pleaded guilty to the charges in district court on 24 August 2016. He was sentenced
to time served and ordered to pay restitution of $25.00 to Love’s Truck Stop. On 2
September 2016, Defendant filed notice of appeal to superior court for a trial de novo
pursuant to N.C. Gen. Stat. § 15A-1431.
Defendant was tried in superior court on 23 October 2017 before the Honorable
Stanley L. Allen. Prior to jury selection, the prosecutor moved to amend the charges
in 16 CRS 50513 with a misdemeanor statement of charges, as follows:
THE COURT: The State has a motion to amend.
[PROSECUTOR]: Yes, sir. I have drafted it on a
misdemeanor statement of charges. The history of this
case briefly is that this was a misdemeanor which was pled
guilty to in [district] court based on the charging language,
and it was a time-served judgment, and so it was not
scrutinized closely. The charging language alleges that the
personal property and the property stolen in the larceny
are the property—Love’s Truck Stop. I am moving to
amend the owner of that property to Love’s Travel Stop &
Country Stores, Incorporated. May I approach?
THE COURT: Yes, sir. What says the defendant?
[DEFENSE COUNSEL]: No objection, Your Honor.
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STATE V. CAPPS
Opinion of the Court
The trial court granted the State’s motion and a misdemeanor statement of charges
was signed and entered that day. The arrest warrant identified the owner of the
stolen property as “Loves Truck Stop,” while the misdemeanor statement of charges
identified the owner as “Love’s Travel Stops & Country Stores, Inc.” In 16 CRS 50513,
the State proceeded upon the statement of charges signed by the prosecutor, rather
than the arrest warrant upon which Defendant was convicted in district court and
from which he appealed to superior court.
At trial, the State presented evidence that Defendant drove to Love’s Truck
Stop on 19 April 2016 and stopped his vehicle at the store’s air pump. While arguing
loudly with a passenger, Defendant exited his vehicle and attempted to put air in the
rear tire. He then began swinging the air hose at the passenger-side window and
telling the passenger “to be quiet.” Defendant then cut off the end of the air hose,
dragged the passenger from the vehicle, attempted to strike her with the severed
hose, and placed the section of hose inside of his car.
Deputy Donald Cline, an off-duty member of the Swain County Sheriff’s Office,
was at the truck stop refueling his vehicle, and he walked toward the disturbance.
As Defendant began to berate an attendant, Deputy Cline approached Defendant,
displayed his badge, and lifted his shirt to reveal his service weapon. With his
passenger lying on the ground, Defendant reentered his vehicle and drove around the
store at a high speed while “burning” his tires, leaving a continuous tread mark on
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STATE V. CAPPS
Opinion of the Court
the pavement. Defendant then drove through an intersection, where he narrowly
passed between a tractor-trailer and a stopped car, ran a red light, and headed “up
the interstate at a high rate of speed.”
The jury found Defendant guilty of all charges. The trial court sentenced
Defendant to 120 days in the custody of the North Carolina Division of Adult
Correction for misdemeanor larceny and ordered him to pay $25.00 in restitution,
together with $1,170.00 in court-appointed counsel fees. The court consolidated the
reckless driving and injury to personal property convictions for judgment and
imposed a 45-day sentence to run consecutively with Defendant’s larceny sentence.
Defendant gave notice of appeal in open court.
II. Discussion
On appeal, Defendant contends that the superior court lacked jurisdiction to
try him for misdemeanor larceny and injury to personal property because the State
proceeded upon an untimely misdemeanor statement of charges in 16 CRS 50513
rather than the arrest warrant upon which Defendant was convicted in district court.
We agree.
A trial court’s subject matter jurisdiction is a question of law reviewed de novo
on appeal. State v. Herman, 221 N.C. App. 204, 209, 726 S.E.2d 863, 866 (2012). A
misdemeanor statement of charges is one of several charging instruments that may
serve as a pleading in North Carolina. N.C. Gen. Stat. § 15A-921(5) (2017). Typically,
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STATE V. CAPPS
Opinion of the Court
a “citation, criminal summons, warrant for arrest, or magistrate’s order serves as the
pleading of the State for a misdemeanor prosecuted in the district court, unless the
prosecutor files a statement of charges[.]” Id. § 15A-922(a). “A statement of charges
is a criminal pleading which charges a misdemeanor.” Id. § 15A-922(b)(1). “When a
statement of charges is filed it supersedes all previous pleadings of the State and
constitutes the pleading of the State.” Id. § 15A-922(a).
The timing of arraignment in district court is determinative as to how, when,
and for what reason a prosecutor can file a statement of charges. “The prosecutor
may file a statement of charges upon his own determination at any time prior to
arraignment in the district court.” Id. § 15A-922(d) (emphasis added). “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.” State v. Wall, 235 N.C. App. 196, 199, 760 S.E.2d
386, 388 (2014) (citing N.C. Gen. Stat. § 15A-922(e)). If the trial court allows the
State to file a statement of charges at or after arraignment, the new statement of
charges “may not change the nature of the offense.” N.C. Gen. Stat. § 15A-922(e). “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 the nature of the offense charged.” Id. § 15A-922(f).
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STATE V. CAPPS
Opinion of the Court
Although N.C. Gen. Stat. § 15A-922(f) permits a misdemeanor charging
instrument to be amended at any time, a charging instrument may be amended by a
misdemeanor statement of charges only under limited circumstances. In Wall, the
defendant was charged by magistrate’s order with resisting a public officer and giving
false information to a public officer. Wall, 235 N.C. App. at 198, 760 S.E.2d at 387.
Following his conviction in district court, the defendant appealed to superior court
for a trial de novo. Id. The State filed a misdemeanor statement of charges in
superior court on which the defendant was tried and found guilty. Id. This Court
vacated the judgment, holding that the superior court “lacked legal authority and,
therefore, was without subject matter jurisdiction to try [the] defendant on the
offense alleged in the misdemeanor statement of charges.” Id. at 197, 760 S.E.2d at
386. We explained:
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.
Id. at 199, 760 S.E.2d at 388 (emphasis added).
Just as the magistrate’s order in Wall could not be “amended” by filing a
misdemeanor statement of charges, here, the arrest warrant could not be “amended”
by filing a misdemeanor statement of charges, unless either (1) the prosecutor filed
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STATE V. CAPPS
Opinion of the Court
the statement of charges prior to Defendant’s arraignment in district court, N.C. Gen.
Stat. § 15A-922(d); or (2) Defendant objected to the warrant’s sufficiency as a
pleading, and the trial court agreed that the warrant was insufficient. Id. § 15A-
922(e). Neither of these exceptions apply in the present case. The statement of
charges was untimely and therefore unauthorized. Wall, 235 N.C. App. at 200, 760
S.E.2d at 388. “Thus, the superior court had no jurisdiction to try [D]efendant for the
new offense alleged in the statement of charges.” Id.; see also State v. Killian, 61 N.C.
App. 155, 157-58, 300 S.E.2d 257, 259 (1983) (vacating judgment because the State
filed a misdemeanor statement of charges alleging a separate statutory violation than
that charged by the warrant, but reasoning that even if the statement of charges had
alleged the same offense, “it would have been untimely and thereby without legal
authorization”).
In the instant case, the State could have amended the warrant “at any time
prior to or after final judgment [so long as] the amendment d[id] not change the
nature of the offense charged.” N.C. Gen. Stat. § 15A-922(f); see also State v.
Clements, 51 N.C. App. 113, 115-17, 275 S.E.2d 222, 224-25 (1981) (allowing the State
to amend the arrest warrant at the close of the State’s evidence because the
amendment did not change the nature of the charged offense). However, this Court’s
holding in Wall, applying the plain language of N.C. Gen. Stat. § 15A-922, dictates
that the State may not amend a charging instrument in superior court by filing a
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STATE V. CAPPS
Opinion of the Court
misdemeanor statement of charges unless the defendant objects to the sufficiency of
the charging instrument and the trial court rules that the pleading is in fact
insufficient. Wall, 235 N.C. App. at 199, 760 S.E.2d at 388. The only fact
distinguishing this case from Wall is the nature of the original charging instrument.
The defendant in Wall was charged upon a magistrate’s order, id. at 198, 760 S.E.2d
at 387, whereas here, Defendant was charged upon an arrest warrant. In neither
instance did the defendant object to the sufficiency of the charging instrument. Id.
at 200, 760 S.E.2d at 388. Nor is it of any consequence that Defendant failed to object
to the statement of charges before the superior court. “Subject matter jurisdiction
cannot be conferred upon a court by consent, waiver or estoppel, and failure
to . . . object to the jurisdiction is immaterial.” State v. Collins, 245 N.C. App. 478,
485, 783 S.E.2d 9, 14 (2016).
The State argues in this case that “the prosecutor did not file a statement of
charges on his own accord at superior court . . . . [but] moved to amend the original
warrant, and the statement of charges was entered as an amendment to the warrant.”
That argument contradicts the statute and this Court’s holding in Wall. The plain
language of the statute clearly provides that “[w]hen a statement of charges is filed
it supersedes all previous pleadings of the State and constitutes the pleading of the
State.” N.C. Gen. Stat. § 15A-922(a). Wall explains that although section 15A-922(f)
permits the State to amend the charging instrument before or after final judgment is
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STATE V. CAPPS
Opinion of the Court
entered, “this does not grant the State authority to change the form of the charging
instrument; i.e., the State cannot ‘amend’ a[n] [arrest warrant] by filing a
misdemeanor statement of charges. Doing so would change the nature of the original
pleading entirely.” Wall, 235 N.C. App. at 199, 760 S.E.2d at 388 (emphasis added).
In the instant case, the State informed the trial court that it had “a motion to
amend [the arrest warrant]” that was “drafted . . . on a misdemeanor statement of
charges.” While the State may assert that it merely intended to amend the arrest
warrant, the newly filed misdemeanor statement of charges superseded the arrest
warrant and became the pleading of the State. See N.C. Gen. Stat. § 15A-922(a). This
Court’s case law does not allow the State, after arraignment in district court, to
amend one charging instrument by filing a different type of charging instrument;
indeed, it forbids it. Wall, 235 N.C. App. at 199, 760 S.E.2d at 388. This Court is
bound by that precedent. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.”). Additionally, this Court
is “an error-correcting body, not a policy-making or law-making one. We lack the
authority to change the law . . . .” Fagundes v. Ammons Dev. Grp., Inc., 251 N.C. App.
735, 739, 796 S.E.2d 529, 533 (citation omitted), disc. review denied, 370 N.C. 66, 803
S.E.2d 626 (2017).
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STATE V. CAPPS
Opinion of the Court
In that the State filed an untimely and unauthorized misdemeanor statement
of charges, the trial court was without subject matter jurisdiction to try Defendant
on the charges therein. Therefore, the judgment entered on those charges is void and
must be vacated.
III. Conclusion
In that the prosecutor proceeded on an untimely misdemeanor statement of
charges in 16 CRS 50153, the trial court lacked jurisdiction to try Defendant on the
charges listed. Accordingly, we vacate Defendant’s convictions for misdemeanor
larceny and injury to personal property. We remand the case for the court to
resentence Defendant on his conviction for reckless driving to endanger in 16 CRS
50154.
VACATED IN PART; REMANDED FOR RESENTENCING IN PART.
Judge HAMPSON concurs.
Judge BERGER dissents in separate opinion.
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No. COA18-386 – State v. Capps
BERGER, Judge, dissenting in separate opinion.
The majority relies on State v. Wall, 235 N.C. App. 196, 760 S.E.2d 386 (2014)
in reaching its decision. However, the majority has failed to discuss the plain
language of N.C. Gen. Stat. § 15A-922(d) and Wall regarding the meaning of the
phrase “upon [the prosecutor’s] determination.” Moreover, the majority and Wall
incorrectly conclude that the State is prohibited from using a misdemeanor statement
of charges to change the nature of the original pleading. Therefore, I respectfully
dissent.1
“A statement of charges is a criminal pleading which charges a misdemeanor.”
N.C. Gen. Stat. § 15A-922 (b)(1) (2017); see also N.C. Gen. Stat. § 15A-921 (2017).
Criminal pleadings must comply with the relevant requirements of N.C. Gen. Stat.
§ 15A-924. In addition, Section 15A-922 imposes as a jurisdictional requirement that
a misdemeanor statement of charges “must be signed by the prosecutor who files it.”
N.C. Gen. Stat. § 15A-922 (b)(1).
Defendant does not argue that the misdemeanor statement of charges here
fails in any way under Section 15A-924, or that the pleading was not signed by the
1 This panel is bound by State v. Wall pursuant to In re Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by that precedent . . . .”). “Our panel is
following [Wall], as we should. However, I write separately to dissent because” the majority and a
portion of Wall are incorrect. Watson v. Joyner-Watson, ___ N.C. App. ___, ___, 823 S.E.2d 122, 126,
(2018) Dillon, J., dissenting.
STATE V. CAPPS
BERGER, J., dissenting
prosecutor. Instead, Defendant argues for the first time on appeal that the filing of
the misdemeanor statement of charges post-district court arraignment caused the
superior court to be divested of jurisdiction.
Section 15A-922 states that a “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 . . . warrant . . . or additional or different offenses.”
N.C. Gen. Stat. § 15A-922(d) (2017) (emphasis added). This section does in fact
impose a limitation on the timing of a prosecutor’s filing of a misdemeanor statement
of charges when filed “upon his own determination.” Id.
Section 15A-922(e) allows a defendant to file a motion objecting to the
sufficiency of certain criminal pleadings. The motion may be filed in district court or
upon trial de novo in superior court. If the trial court determines such pleadings are
“insufficient, the prosecutor may file a statement of charges, but a statement of
charges . . . may not change the nature of the offense.” N.C. Gen. Stat. § 15A-922(e)
(2017). Defendant here filed no such motion.
The majority and Wall, contend that “[a]fter 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.” Wall, 235 N.C. App. at 199, 760 S.E.2d at 388 (citation omitted). The
majority here goes further in limiting the State’s use of misdemeanor statements of
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STATE V. CAPPS
BERGER, J., dissenting
charges by contending that “[t]he timing of arraignment in district court is
determinative as to how, when, and for what reason a prosecutor can file a statement
of charges.” This is correct only for statements of charges filed by a prosecutor “upon
his own determination” or when a defendant files a motion contesting an insufficient
criminal pleading. However, these limitations are not as sweeping as the majority or
Wall contend.
In State v. Killian, 61 N.C. App. 155, 300 S.E.2d 257 (1983), the defendant was
charged by warrant with a misdemeanor offense and convicted in district court. The
defendant appealed his conviction. When the case came on for trial de novo in
superior court, “the District Attorney issued a misdemeanor statement of charges.”
Id. at 156, 300 S.E.2d at 258 (1983) (quotation marks omitted). There was no motion
by the defendant in the record objecting to the original warrant pursuant to Section
15A-922(e), and no indication that the parties had agreed to the filing of the
misdemeanor statement of charges. Id. at 157, 300 S.E.2d at 259. This Court
reversed the defendant’s conviction because the misdemeanor statement of charges
filed by the prosecutor alleged a different offense than that alleged in the original
warrant. The Court also stated that even if the statement of charges alleged the same
charge as the original warrant, the new pleading would have been untimely because
“[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
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STATE V. CAPPS
BERGER, J., dissenting
de novo on appeal to superior court . . . .” Id. at 157, 300 S.E.2d at 259 (emphasis
added).
Similarly, in State v. Wall, the defendant was tried and convicted for a
misdemeanor in district court. The State filed a misdemeanor statement of charges
after the case was appealed for trial de novo in superior court. This Court noted that
“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.” Wall, 235 N.C. App. at 199, 760 S.E.2d at
388 (emphasis added).
Both Killian and Wall recognize that Section 922(d) imposes a procedural
limitation on the filing of a statement of charges on the prosecutor’s own
determination or accord. The prosecutor has discretion to file a misdemeanor
statement of charges on his own accord at any time prior to arraignment in district
court. A statement of charges filed at this time can correct a prior criminal pleading
or may charge new offenses.
However, neither the statute nor Wall or Killian, preclude a prosecutor’s post-
district court arraignment use of statements of charges when the prosecutor and the
parties agree. Here, there is no question that the statement of charges was filed post-
district court arraignment. The relevant inquiry then is whether or not the statement
of charges was filed on the prosecutor’s own determination.
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STATE V. CAPPS
BERGER, J., dissenting
The State made an oral motion to amend the warrant in superior court using
a misdemeanor statement of charges. Not only was the State’s request to use a
statement of charges to correct a perceived defect in the warrant consented to by
Defendant, it was allowed by the trial court as set forth in the following exchange:
THE COURT: The State has a motion to amend[?]
[PROSECUTOR]: Yes, sir. I have drafted it on a
misdemeanor statement of charges. The history of this
case briefly is that this was a misdemeanor which was pled
guilty to in [district] court based on the charging language,
and it was a time-served judgment, and so it was not
scrutinized closely. The charging language alleges that the
personal property and the property stolen in the larceny
are the property – Love’s Truck Stop. I am moving to
amend the owner of that property to Love’s Travel Stop &
Country Stores, Incorporated. May I approach?
THE COURT: Yes, sir. What says the defendant?
[DEFENSE COUNSEL]: No objection, Your Honor.
Based upon this exchange between the parties and the court, the statement of charges
was not filed upon the prosecutor’s own determination or accord, and thus, not subject
to the procedural limitation in Section 15A-922(d). Rather, the misdemeanor
statement of charges was a new pleading filed with consent of all parties and
permission of the Court because “there [was] some problem with the original process
as a pleading,” N.C. Gen. Stat. ch. 15A, art. 49 official commentary (2015). The
majority has declined to discuss the wording of the statute, or the intent of the
Legislature as set forth in the Official Commentary.
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STATE V. CAPPS
BERGER, J., dissenting
Therefore, because the statement of charges was not filed upon the prosecutor’s
own determination, the criminal pleading only had to meet the requirements set forth
in Section 15A-924 and be signed by the prosecutor to satisfy jurisdictional concerns.
Again, Defendant did not take issue with the sufficiency of the criminal pleading.
In addition, the majority and Wall incorrectly state that a misdemeanor
statement of charges may not be filed when it “change[s] the form of the charging
instrument, i.e., the State cannot ‘amend’ a magistrate’s order by filing a
misdemeanor statement of charges.” Wall, 235 N.C. App. at 199, 760 S.E.2d at 388.
The majority and Wall incorrectly view the filing of a statement of charges as an
amendment to a criminal pleading when it is not. A statement of charges is a new
criminal pleading, not an amendment to a prior criminal pleading.
The Official Commentary to Article 49 notes that
The “statement of charges” is new. Being able to use the
warrant as the pleading has worked well in this State, and
saved much solicitorial manpower as compared to
jurisdictions which require the drafting of a new
misdemeanor pleading in each instance. It was felt that
there is some loss in trying to “amend” the warrant, and
sometimes issue a new warrant, when what is desired is a
correct statement of the charges--a proper pleading. . . .
[T]he “statement of charges” is created, as a new pleading,
to be used when there is some problem with the original
process as a pleading. As such it takes the place of
amending the warrant (or amending other process which
may also be used as the pleading). When filed prior to
arraignment, it also may charge additional crimes. That
simple idea requires some complexity for statement in
statutory form, but that is the underlying idea in § 15A-922.
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STATE V. CAPPS
BERGER, J., dissenting
It should be relatively easy to prepare a statement of
charges; a form should be sufficient in many cases.
N.C. Gen. Stat. ch. 15A, art. 49 official commentary. (emphasis added). When read
together, Section 15A-922 and the Official Commentary make it clear that a
misdemeanor statement of charges was, contrary to Wall, intended to “change the
form of the charging instrument” Wall, 235 N.C. App. at 199, 760 S.E.2d at 388.
Here, the State could have cured the defect in the warrant by amendment or
by filing a statement of charges. See N.C. Gen. Stat. § 15-24.1 (2017) and § 15A-922(f)
(2017). It is nonsensical that a trial court would be divested of jurisdiction by the
filing of a statement of charges when an oral motion would have accomplished the
same practical result: correcting the pleading.
Nevertheless, the majority and Wall incorrectly view Section 15A-922 as
somehow prohibiting the use of a statement of charges to correct criminal pleadings
when there is no such prohibition in the statute or the Official Commentary. In fact,
the use of the misdemeanor statement of charges here was as the Legislature
intended. N.C. Gen. Stat. § 15A-922(a); see also N.C. Gen. Stat. ch. 15A, art. 49
official commentary.
Because the filing of the statement of charges, with consent of Defendant and
permission of the trial court, merely corrected a defect in a pleading, the trial court
did not err.
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