State v. Mather

• Decision Date: 17 July 2012
• Docket Number: No. COA11–1393.,COA11–1393.
• Citation: 728 S.E.2d 430
• Parties: STATE of North Carolina v. William Yale MATHER.
• Court: North Carolina Court of Appeals

728 S.E.2d 430

STATE of North Carolina

v.William Yale MATHER.

No. COA11–1393.

Court of Appeals of North Carolina.

July 17, 2012.

Appeal by defendant from judgment entered 5 April 2011 by Judge William R. Pittman in Moore County Superior Court. Heard in the Court of Appeals 5 April 2012.

Attorney General Roy Cooper, by Assistant Attorney General, Nancy E. Scott, for the State of North Carolina.

Geeta Nadia Kapur, for the defendant.

THIGPEN, Judge.

William Yale Mather (“Defendant”) appeals from a judgment convicting him of carrying a concealed handgun in violation of N.C. Gen.Stat. § 14–269(a1) (2011). On appeal, Defendant argues the trial court erred in denying his motion to dismiss because there was a fatal variance between the allegations in the charging document and the evidence at trial. After careful review, we conclude the trial court did not err.

The evidence of record tends to show the following: On the evening of 30 May 2009, Defendant, Defendant's girlfriend, and several other people went to the Broad Street Bar and Grill (“Bar and Grill”) in Southern Pines, North Carolina. While there, Defendant drank several beers and played pool. After several hours had passed at the Bar and Grill, a bouncer approached Defendant and asked whether he had a weapon on him. Defendant did not answer, and the bouncer told Defendant to leave. Defendant complied and left the Bar and Grill in a Sandhills Transportation burgundy taxi van.

Later that evening, Defendant returned and attempted to reenter the Bar and Grill. The bouncer told Defendant he could not go inside. Defendant became “agitated[,]” and the bouncer called the Southern Pines Police Department. Defendant walked back to the burgundy taxi van.

Officer Chris Coleman (“Officer Coleman”) of the Southern Pines Police Department responded to the call from the Bar and Grill bouncer and saw the burgundy taxi van in the Bar and Grill parking lot. Officer Coleman approached the van. Defendant was standing in the doorway of the van, talking to the cab driver. When Defendant saw Officer Coleman, he told Officer Coleman that he had a permit to carry a concealed weapon. Defendant showed Officer Coleman his concealed weapon permit, and Officer Coleman deemed the concealed weapon permit to be valid. Officer Coleman asked Defendant whether he had been drinking, and Defendant admitted that he had been drinking beer that evening at the Bar and Grill. Officer Coleman removed the concealed weapon from Defendant's pocket and arrested Defendant.

On 9 August 2009, Defendant was charged with carrying a concealed handgun in violation of N.C. Gen.Stat. § 14–269(a1). The magistrate's order charging Defendant alleged that “the defendant ... unlawfully and willfully did carry concealed about the defendant's person while off the defendant's own premises a gun, .25 CAL BROWNING PISTOL[,]” which is the language of N.C. Gen.Stat. § 14–269(a1)(1).

On 12 November 2009, Defendant was found guilty in District Court of carrying a concealed handgun in violation of N.C. Gen.Stat. § 14–269(a1). Defendant appealed to Superior Court. On 5 April 2011, a jury found Defendant guilty of carrying a concealed handgun in violation of N.C. Gen.Stat. § 14–269(a1). The trial court entered a judgment consistent with the jury's verdict, sentencing Defendant to 30 days incarceration in the Moore County Jail. However, the trial court suspended the sentence and imposedan active sentence of 7 days incarceration and 18 months unsupervised probation. From this judgment, Defendant appeals.

I: Sufficiency of the Indictment and Fatal Variance

On appeal, Defendant argues the trial court erred in denying Defendant's motion to dismiss because the evidence at trial “proved an offense not charged by the criminal pleading[.]” Defendant argues there was a fatal variance between the charging document—in this case, the magistrate's order—and the evidence. Before we reach the question of whether there was a fatal variance between the indictment and the evidence, we believe it is necessary to determine whether the indictment itself was sufficient.

Defendant did not object to the sufficiency of the indictment at trial and does not argue on appeal that the indictment was insufficient. However, we believe an examination of this question is necessary before we determine whether there was a fatal variance, because, in this case, the questions are intertwined.¹ Defendant essentially argues the magistrate's order charged him with the wrong crime, and the State's evidence “focused on the fact that [Defendant] had been drinking [alcohol].” However, Defendant also states in his brief that the “charging document does not allege that [Defendant] had consumed alcohol[.]” Defendant repeats and emphasizes that Defendant was “charged ... with carrying a concealed gun, not carrying a concealed gun while drinking alcohol.” In constructing his argument that there was a fatal variance between the charging document and the proof, Defendant implies that the consumption of alcohol is an essential element of the charge of carrying a concealed weapon, thus interposing the question of the sufficiency of the indictment.

“[W]hen an indictment has failed to allege the essential elements of the crime charged, it has failed to give the trial court subject matter jurisdiction over the matter, and the reviewing court must arrest judgment.” State v. Kelso, 187 N.C.App. 718, 722, 654 S.E.2d 28, 31–32 (2007) (citation omitted).

No indictment, whether at common law or under a statute, is sufficient if it does not accurately and clearly allege all of the constituent elements of the crime sought to be charged. However, there is no requirement that an indictment must follow the precise language of the statute provided that the pleading charges facts which are sufficient to enable the indictment to fulfill its essential purposes.

State v. Hunter, 299 N.C. 29, 41, 261 S.E.2d 189, 197 (1980) (internal citations omitted). Two purposes of an indictment are “to make clear the offense charged so that the investigation may be confined to that offense, that proper procedure may be followed, and applicable law invoked; [and] ... to put the defendant on reasonable notice so as to enable him to make his defense.” State v. Leonard, ––– N.C.App. ––––, ––––, 711 S.E.2d 867, 872,disc. review denied,365 N.C. 353, 717 S.E.2d 746 (2011) (quotation omitted). “A[n] ... indictment [m]erely charging in general terms a breach of the statute and referring to it in the indictment is not sufficient.” State v. McBane, 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969) (quotation omitted); see also State v. Billinger, ––– N.C.App. ––––, ––––, 714 S.E.2d 201, 207 (2011) (“[I]t is well established that [m]erely charging in general terms a breach of [a] statute and referring to it in the indictment is not sufficient to cure the failure to charge the essentials of the offense in a plain, intelligible, and explicit manner”).

In this case, the magistrate's order charged Defendant with a violation of N.C. Gen.Stat. § 14–269(a1), alleging that “the defendant ... unlawfully and willfully did carry concealed about the defendant's person while off the defendant's own premises a gun, .25 CAL BROWNING PISTOL.”

The statute defining the crime of carrying a concealed weapon, N.C. Gen.Stat. § 14–269(a1), provides the following:

It shall be unlawful for any person willfully and intentionally to carry concealed about his person any pistol or gun except in the following circumstances:

(1) The person is on the person's own premises.

(2) The deadly weapon is a handgun, the person has a concealed handgun permit issued in accordance with Article 54B of this Chapter or considered valid under G.S. 14–415.24, and the person is carrying the concealed handgun in accordance with the scope of the concealed handgun permit as set out in G.S. 14–415.11(c).

(3) The deadly weapon is a handgun and the person is a military permittee as defined under G.S. 14–415.10(2a) who provides to the law enforcement officer proof of deployment as required under G.S. 14–415.11(a).

Id. Our Supreme Court, citing an earlier version of N.C. Gen. Stat. § 14-269, has stated the following: “The essential elements of the statutory crime of carrying a deadly weapon are these: (1) The accused must be off his own premises; (2) he must carry a deadly weapon; (3) the weapon must be concealed about his person.” State v. Williamson, 238 N.C. 652, 654, 78 S.E.2d 763, 765 (1953) (citations omitted).

On appeal, Defendant posits that the evidence produced by the State at trial disproved that Defendant violated N.C. Gen.Stat. § 14–269(a1), because the uncontroverted evidence shows that Defendant had a concealed handgun permit. However, the State's evidence also shows that Defendant was not “carrying the concealed handgun in accordance with the scope of the concealed handgun permit as set out in G.S. 14–415.11(c)[.]” N.C. Gen.Stat. § 14–269(a1). N.C. Gen.Stat. § 14–415.11(c)(1) (2011) provides that “a permit does not authorize a person to carry a 269.3[.]” Id.N.C. Gen.Stat. § 14–269.3(a) (2011) provides that “[i]t shall be unlawful for any person to carry any gun, rifle, or pistol into any assembly where a fee has been charged for admission thereto, or into any establishment in which alcoholic beverages are sold and consumed. Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor.” Id. Moreover, N.C. Gen.Stat. § 14–415.11(c2) (2011), provides the following:

It shall be unlawful for a person, with or without a permit, to carry a concealed handgun while consuming alcohol or at any time while the person has remaining in the person's body any alcohol or in the person's blood a controlled substance previously consumed, but a person does not violate this condition if a controlled substance in the person's blood was lawfully obtained and taken in therapeutically appropriate amounts or if the person is on the person's own...