State v. Snyder

• Decision Date: 04 April 1996
• Docket Number: No. 210PA95,210PA95
• Citation: 343 N.C. 61,468 S.E.2d 221
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina V. Lance Albert SNYDER.

Page 221

468 S.E.2d 221

343 N.C. 61

STATE of North Carolina

V.

Lance Albert SNYDER.

No. 210PA95.

Supreme Court of North Carolina.

April 4, 1996.

Michael F. Easley, Attorney General by Isaac T. Avery, III, Special Deputy Attorney General, for State-appellant.

Malcolm Ray Hunter, Jr., Appellate Defender by J. Michael Smith, Assistant Appellate Defender, for defendant-appellee.

ORR, Justice.

Defendant is appealing from his sixth conviction in the last ten years for impaired driving offenses. On 19 November 1993, defendant pled guilty to the offense of habitual impaired driving and was convicted by a jury of the offenses of driving while impaired (DWI) and being a habitual felon. The evidence presented at trial tended to show that on 11 May 1993, Officer Long of the Greensboro Police Department responded to a call describing a disturbance involving an individual, the defendant, with a knife at the Lost Dimensions Nightclub ("the Club"). When Long arrived at the Club, the Club manager told Long that the man causing the disturbance was driving a beige station wagon in the Club's parking lot. After locating and stopping the vehicle being driven by defendant, Long approached the vehicle and asked defendant to exit it. Long noticed that defendant needed to hold on to the vehicle to maintain his balance, that he smelled very strongly of alcohol, and that his speech was slurred. Long asked defendant to perform several field sobriety tests, which defendant failed. Long arrested the defendant for DWI.

Defendant was taken to the police department where Officer Cuthbertson administered further sobriety and physical tests to determine the extent of his impairment. After refusing to submit to a Breathalyzer test defendant was taken to the magistrate's office. Based on their observations of defendant on 11 May 1993, Long and Cuthbertson formed the opinion that defendant had consumed sufficient alcohol to be "appreciably impaired." Subsequently, on 7 June 1993, defendant was indicted in two separate indictments for driving while impaired ("DWI") and habitual impaired driving ("the DWI indictment") and for being a habitual felon.

On 18 November 1993, after a mistrial was declared due to the illness of a juror, the case was tried before a second jury. During this new trial, the State presented the following evidence regarding the Club's parking lot on which defendant was observed driving: The Club is located on a service road at 510 Farragut Street off Randleman Road near Interstate 40. The Club parking lot opens up onto Farragut Street. Officer Long testified that the Club sits on a small hill with a Budget Motel next door. There is a top-level asphalt parking lot for the Club that wraps around the back. He further testified as follows:

The parking lot winds around the back, and then, there's a spot right behind the back [of the Club] by a dumpster that has enough room if you wanted to try and drive through there. Then, the parking lot wraps around and leads to the back, and this is the hotel. There's two separate buildings for the hotel, which are separated by an area. The parking lot winds around, and there's parking spots for the rooms there, and you can drive up....

Mark Pulliam, general manager, testified that the Club is a private club and that the Club's policy restricts the use of the Club to members and their guests and only during the Club's open business hours; it is not open to the public. He further testified that Club members may not park in the lot overnight without special permission from Club management and that the Club does not permit patrons of the motel to use the Club's parking lot. On cross-examination, Pulliam testified that the Club enforces this policy by not permitting use of the Club's parking lot by nonmembers, by not permitting any loitering by the public, and by not allowing Club members to use the lot when they are not in the Club. On redirect examination, Pulliam testified that there is no membership card required to get into the parking lot. Finally, on recross examination, when asked by defense counsel whether a person who came into the parking but did not go into the Club would have to leave, Pulliam testified that nonmembers are allowed to park in the lot to "come in and check things out.... [E]verybody is welcome in the lobby."

At the close of the State's evidence, defendant, who offered no evidence, moved to dismiss all charges because the State failed to offer sufficient evidence that "defendant ... unlawfully, willfully did operate a motor vehicle on a street or highway while subject to an impairing substance" as charged in the DWI indictment. (Emphasis added.) The State then moved to amend the DWI indictment to read "on a highway or public vehicular area." (Emphasis added.) Over defendant's objection, the trial court granted the State's motion to amend the DWI indictment and denied defendant's motion to dismiss. Subsequently, the jury found defendant guilty of all charges, and the trial court entered judgment against him and sentenced him to forty years in prison.

On appeal to the Court of Appeals, defendant contended that the trial court erred (1) by granting the State's motion to amend the DWI indictment to include the allegation that defendant drove in a "public vehicular area," (2) by denying defendant's motion to dismiss for insufficient evidence to prove that defendant was driving on a "street or highway," and (3) by instructing the jury that the parking lot of the Club is a "public vehicular area" as a matter of law. The Court of Appeals arrested judgment and commitment on all charges, holding that the trial court erred in amending the DWI indictment and in failing to dismiss the charges stemming from the flawed indictment. The Court of Appeals further held that the trial court erred by instructing the jury that the Club's parking lot was a "public vehicular area" as a matter of law, as this removed an essential element of the offense charged from the jury's consideration.

On 27 July 1995, this Court granted discretionary review.

I.

The first issue before this Court is whether the trial court erred in granting the State's motion to amend the DWI indictment that defendant operated a motor vehicle on "a street or highway" to read "on a highway or public vehicular area." Defendant contends that such amendment was not proper because it substantially altered the charge contained in the bill of indictment, thereby violating defendant's right to an indictment by a grand jury as guaranteed by Article I, Section 22 of the North Carolina Constitution and pursuant to N.C.G.S. § 15A-641(a).

Jurisdiction to try an accused for a felony depends upon a valid bill of indictment guaranteed by Article I, Section 22 of the North Carolina Constitution. State v. McBane, 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969). An indictment charging a statutory offense must allege all of the essential elements of the offense. State v. Crabtree, 286 N.C. 541, 544, 212 S.E.2d 103, 105 (1975).

N.C.G.S. § 15A-923(e) provides that "[a] bill of indictment may not be amended." N.C.G.S. § 15A-923(e) (1988). This Court has interpreted the term "amendment" under N.C.G.S. § 15A-923(e) to mean "any change in the indictment which would substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984). In State v. Coker, this Court stated that an

indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense. The indictment must also enable the court to know what judgment to pronounce in the event of conviction.

State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984).

An indictment is sufficient in form for all intents and purposes if it expresses the charge in a plain, intelligible and explicit manner. N.C. Gen.Stat. § 15-153 (1983). It will not be quashed "by reasons of any informality or refinement, if[,] in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment." [State v. Russell, 282 N.C. 240, 244, 192 S.E.2d 294, 296 (1972) ]. It is generally held that the language in a statutorily prescribed form of criminal pleading is sufficient if the act or omission is clearly set forth so that a person of common understanding may know what is intended. 41 Am.Jur.2d, Indictments and Informations § 68 (1968).

Coker, 312 N.C. at 435, 323 S.E.2d at 346.

N.C.G.S. § 20-138.1(a) provides in pertinent part that "a person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State ... while under the influence of an impaired substance." N.C.G.S. § 20-138.1(a)(1) (1988). With regard to indictments in any prosecution for impaired driving, the situs of the impaired driving offense is one of the essential elements of the offense charged. See State v. Bowen, 67 N.C. App. 512, 515, 313 S.E.2d 196, 197, appeal dismissed, 312 N.C. 79, 320 S.E.2d 405 (1984). However, there simply has to be an allegation of a situs that is included within the parameters of N.C.G.S. § 20-138.1(a) that defendant drove a vehicle on "any highway, any street, or any public vehicular area." N.C.G.S. § 20-138.1(a) (emphasis added). Greater specificity is not required.

In the instant case, defendant contends that the DWI indictment was fatally defective because the omission of the phrase "public vehicular area" removed from the jury's consideration the situs of the offense--an essential element of the DWI offense charged. He argues that the subsequent amendment resulted in a substantial deviation from the charge alleged and upon which defendant was tried. Specifically, defendant argues that the term "street" in the DWI indictment was referring to "street" as defined in N.C.G.S. §...