State v. Coltrane

• Decision Date: 05 February 2008
• Docket Number: No. COA07-486.,COA07-486.
• Citation: 656 S.E.2d 322
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Alfonza Dawnta COLTRANE aka Alfenza, Dawnta Coletrane aka. Alfonz Dwante Coltrane.

656 S.E.2d 322

STATE of North Carolina v. Alfonza Dawnta COLTRANE aka Alfenza, Dawnta Coletrane aka. Alfonz Dwante Coltrane.

No. COA07-486.

Court of Appeals of North Carolina.

February 5, 2008.

Appeal by defendant from judgment entered 8 November 2006 by Judge Jerry Cash Martin in Randolph County Superior Court. Heard in the Court of Appeals 26 November 2007.

Roy Cooper, Attorney General, by John P. Barkley, Assistant Attorney General, for the State.

Anne Rieman, Chapel Hill, for defendantappellant.

MARTIN, Chief Judge.

Alfonza Dawnta Coltrane ("defendant") appeals from judgments entered upon jury verdicts in 05 CRS 052926-27 finding him guilty of one count of driving while license revoked pursuant to N.C.G.S. § 20-28(a), one count of resisting a public officer pursuant to N.C.G.S. § 14-223, and one count of felonious possession of a firearm by a felon pursuant to N.C.G.S. § 14-415.1. On 8 November 2006, defendant was sentenced to a consolidated term of 20 to 24 months imprisonment to commence at the expiration of sentences which defendant was already obligated to serve.

Defendant's 8 November 2006 convictions arose out of events that occurred on 25 April 2005 in Randolph County. On 10 November 2005, defendant appeared in Randolph County District Court and was found guilty of driving while license revoked pursuant to N.C.G.S. § 20-28(a) and resisting a public officer pursuant to N.C.G.S. § 14-223. Defendant was sentenced to a term of 45 days imprisonment. Defendant gave notice of appeal to Randolph County Superior Court. On 10 April 2006, the Randolph County Grand Jury issued an indictment for the Class G felony of possession of a firearm by a convicted felon, in violation of N.C.G.S. § 14-415.1. On 7-8 November 2006, a jury heard and decided the case against defendant for the charges in 05 CRS 052926-27 of driving while license revoked, resisting a public officer, and felonious possession of a firearm by a felon. Defendant gave notice of appeal to this Court on 8 November 2006 in open court.

The record on appeal contains one hundred one assignments of error. In his brief, however, defendant presented arguments in support of only twenty-four of those assignments of error. The remaining assignments of error are deemed abandoned. N.C.R.App. P. 28(a) (2008) ("Questions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party's brief, are deemed abandoned.").

I.

Defendant first contends that the trial court erred by allowing the State to amend the 10 April 2006 indictment charging him with possession of a firearm by a felon. The State was permitted to amend the indictment to correct: (A) the date of the offense, and (B) the county in which defendant was convicted of the underlying felony. Defendant argues that, because of these errors, the indictment was defective and so the trial court lacked jurisdiction to hear the matter. We disagree.

A.

N.C.G.S. § 15A-923(e) provides that "[a] bill of indictment may not be amended." N.C. Gen.Stat. § 15A-923(e) (2007). "This statute, however, has been construed to mean only that an indictment may not be amended in a way which `would substantially alter the charge set forth in the indictment.'" State v. Brinson, 337 NC. 764, 767, 448 S.E.2d 822, 824 (1994) (quoting State v. Carrington, 35 N.C.App. 53, 240 S.E.2d 475, disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978)). "Thus, for example, where time is not an essential element of the crime, an amendment relating to the date of the offense is permissible since the amendment would not `substantially alter the charge set forth in the indictment.'" Id. (quoting State v. Price, 310 N.C. 596, 598-99, 313 S.E.2d 556, 559 (1984)); see also State v. Locklear, 117 N.C.App. 255, 260, 450 S.E.2d 516, 519 (1994) (quoting State v. Cameron, 83 N.C.App. 69, 72, 349 S.E.2d 327, 329 (1986)) ("Ordinarily, the date alleged in the indictment is neither an essential nor a substantial fact, and therefore the State may prove that the offense was actually committed on some date other than that alleged in the indictment without the necessity of a motion to change the bill.'").

N.C.G.S. § 14-415.1(a) provides, in part: "It shall be unlawful for any person who has been. convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c)." N.C. Gen.Stat. § 14-415.1(a) (2007). Thus, the date of the offense is not an essential element of the offense of possession of a firearm by a felon. Therefore, "`[t]he failure to state accurately the date or time an offense is alleged to have occurred does not invalidate a bill of indictment nor does it justify reversal of a conviction obtained thereon.'" Locklear, 117 N.C.App. at 260, 450 S.E.2d at 519 (quoting Cameron, 83 N.C.App. at 72, 349 S.E.2d at 329).

In the present case, the 10 April 2006 indictment returned against defendant stated that the alleged offense occurred "on or about the 9th day of December, 2004." The State moved to amend this date to 25 April 2005, which the trial court granted over defendant's objection. Since the date of the offense is not an essential element of possession of a firearm by a felon, amending this date did not "substantially alter the charge set forth in the indictment," Brinson, 337 N.C. at 767, 448 S.E.2d at 824 (internal quotation marks omitted), and we find no error.

B.

N.C.G.S. § 14-415.1(c) provides, in part:

An indictment which charges the person with violation of this section must set forth the date that the prior offense was committed, the type of offense and the penalty therefor, and the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the conviction or plea of guilty took place and the verdict and judgment rendered therein.

N.C. Gen.Stat. § 14-415.1(c) (emphasis added). However, "[e]ven where a statute requires a particular allegation, the omission of such an allegation from an indictment is not necessarily fatal to jurisdiction." State v. Inman, 174 N.C.App. 567, 569, 621 S.E.2d 306, 308 (2005), disc. review denied, 360 N.C. 652, 638 S.E.2d 907 (2006).

In State v. Lewis, 162 N.C.App. 277, 590 S.E.2d 318 (2004), this Court held that the State could amend a habitual felon indict ment pursuant to N.C.G.S. § 14-7.3 which "correctly stated the type of offense for which defendant was convicted and the date of that offense," but "incorrectly stated the date and county of defendant's conviction." Lewis, 162 N.C.App. at 284-85, 590 S.E.2d at 324 (emphasis added). N.C.G.S § 14-7.3 includes language almost identical to that in N.C.G.S § 14-415.1(c) regarding the "identity of the court," providing:

An indictment which charges a person with being a[ ] habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.

N.C. Gen.Stat. § 14-7.3 (2007) (emphasis added). Again, N.C.G.S § 14-415.1(c) provides, in part, that the indictment charging the offense of possession of a firearm by a felon "must set forth ... the identity of the court in which the conviction or plea of guilty took place." N.C. Gen.Stat. § 14-415.1(c). In Lewis, this Court concluded that "[t]he indictment at issue sufficiently notified defendant of the particular conviction that was being used to support his status as a[ ] habitual felon," in spite of errors in both the date and county of defendant's prior conviction. See Lewis, 162 N.C.App. at 285, 590 S.E.2d at 324. Although, unlike the present case, defendant in Lewis also "previously stipulated to [his prior] conviction and did not argue he lacked notice of the hearing at trial," we do not believe that this Court's conclusion in Lewis was contingent upon defendant's stipulation. See id.

In the present case, the 10 April 2006 indictment stated that defendant's underlying felony conviction occurred "in Montgomery County Superior Court." The State moved to amend this designation to Guilford County Superior Court, which the trial court granted over defendant's objection. The indictment correctly identified all of the other allegations required pursuant to N.C.G.S. § 14-415.1(c) regarding defendant's prior felony conviction, including: (1) the date on which defendant's prior felony was committed ("on or about October 31, 2003"); (2) the type of offense for which defendant was convicted ("fleeing to elude arrest, a felony"); (3) the penalty for that offense ("sentenced to a term of 14-17 months (consolidated with another sentence), suspended, with 36 months probation"); (4) the date of defendant's prior conviction ("on or about June 8, 2004"); and (5) the verdict rendered ("found guilty"). At the time of the 10 April 2006 indictment, defendant had prior convictions for the felony of fleeing to elude arrest in Guilford County (03 CRS 102696) and Randolph County (04 CRS 058421) entered on 8 June 2004 and 1 February 2006, respectively, but had no record of any convictions for any offenses in Montgomery County.

Just as this Court held in Lewis that an indictment which "incorrectly stated the date and county of defendant's conviction" sufficiently notified defendant of the prior conviction referenced therein, see id. at 284, 590 S.E.2d at 324, we conclude that the 10 April 2006 indictment in the present case sufficiently notified defendant that the prior felony conviction referenced was his 8 "June 2004 conviction for fleeing to elude arrest, which occurred in Guilford County. Since the State's amendment to the identity of the court in the indictment neither frustrated the purpose of the indictment "`to inform a party so that he may learn with...