State v. Stephens

• Decision Date: 15 January 2008
• Docket Number: No. COA06-1594.,COA06-1594.
• Citation: 655 S.E.2d 435
• Parties: STATE of North Carolina v. Mark Daniel STEPHENS.
• Court: North Carolina Court of Appeals

655 S.E.2d 435

STATE of North Carolina v. Mark Daniel STEPHENS.

No. COA06-1594.

Court of Appeals of North Carolina.

January 15, 2008.

Appeal by defendant from judgments entered 15 May 2006 by Judge Orlando F. Hudson in Wake County Superior Court. Heard in the Court of Appeals 22 August 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Amy C. Kunstling, for the State.

Jarvis John Edgerton, IV, Raleigh, for defendant-appellant.

JACKSON, Judge.

On 10 February 2003, Mark Daniel Stephens ("defendant") was indicted on one count of felony stalking of Melanie Shekita ("Shekita"). Defendant's indictment stated that

on or about the 2nd day of October, 2002, in Wake County, the defendant named above unlawfully, willfully and feloniously did on more than one occasion follow or is [sic] in the presence of, or otherwise harass, Melanie Shekita, without legal purpose and with the intent to cause emotional distress by placing that person in reasonable fear of death or bodily injury and who has committed this offense of stalking after having been previously convicted of a stalking offense on March 19, 2002. This act was done in violation of G.S. 14-277.3.

In a superceding indictment filed 4 November 2003, defendant was charged with one count of felony stalking of Shekita with language almost identical to the 10 February 2003 indictment, except that the date of the offense was amended to read "on or about October 2, 2002 to October 24, 2002" and the case number of defendant's prior stalking conviction, 02 CR 11460, was added. On 18 November 2003, defendant was indicted for attaining the status of an habitual felon. A second superceding indictment for stalking was filed 6 January 2004, stating that

on or about May 28, 2002 to October 24, 2002, in Wake County, the defendant named above, unlawfully, willfully, and feloniously did on more than one occasion follow or was in the presence of, or otherwise harass, Melanie Shekita, without legal purpose and with either the intent to place Melanie Shekita in reasonable fear either for her safety or the safety of her immediate family or close personal associates, or with the intent to caused [sic] Melanie Shekita to suffer substantial emotional distress by placing her in fear of death, bodily injury, or continued harassment, and that in fact caused Melanie Shekita substantial emotional distress. At the time of this offense, the defendant had been previously convicted of a stalking offense on March 19, 2002 in Wake County District Court (02cr 11460). This act was done in violation of N.C. Gen.Stat. § 14-277.3.

On 28 January 2004, defendant was tried before a jury and convicted of felony stalking and of attaining the status of an habitual felon. Defendant appealed, and this Court granted him a new trial after holding that the trial court failed to conduct the statutorily required inquiry prior to allowing him to proceed pro se. State v. Stephens, No. COA05-93, 173 N.C.App. 758, 620 S.E.2d 322, 2005 N.C.App. LEXIS 2249 (N.C.Ct App. Oct. 18, 2005) (providing the facts of this case in greater detail).

On 1 May 2006, defendant signed a written waiver of counsel, declaring his intention to proceed pro se. On 9 May 2006, the State filed a motion to amend defendant's 6 January 2004 indictment by (1) striking the allegation of a prior offense from the existing single count; and (2) adding the allegation of the prior offense as a second count, which would allege the elements required for the Class F felony offense of stalking. Apart from the division of the wording into two separate counts, the language of the amended indictment was identical to the 6 January 2004 superceding indictment. The trial court allowed the amendment, and by order filed 10 May 2006, the trial court amended defendant's indictment, finding that the amendment did not prejudice defendant or substantially change the language of the indictment.

On 12 May 2006, defendant was found guilty by a jury of felony stalking, and on 15 May 2006, he was found guilty of attaining the status of an habitual felon. The trial court sentenced defendant to a term of 120 to 153 months imprisonment, and defendant gave oral notice of appeal.

Defendant's sole argument on appeal is that the trial court erred in granting the State's motion to amend the 6 January 2004 indictment by separating the existing allegation into two separate counts. Defendant contends the amendment amounted to a substantial alteration of the charge; specifically, he argues that the indictment, in its original format, was sufficient only to allege misdemeanor stalking, whereas the indictment as amended elevated the charge to felony stalking. We disagree.

North Carolina General Statutes, section 15A-923(e) provides that "[a] bill of indictment may not be amended." N.C. Gen. Stat. § 15A-923(e) (2005). This provision has been interpreted to mean that "a bill of indictment may not be amended in a manner that substantially alters the charged offense." State v. Silas, 360 N.C. 377, 380, 627 S.E.2d 604, 606 (2006) (citing State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)). "In determining whether an amendment is a substantial alteration, we must consider the multiple purposes served by indictments, the primary one being `to enable the accused to prepare for trial.'" Id. (quoting State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600, cert. denied, 539 U.S. 985, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003)). An amendment to an indictment "which result[s] in a misdemeanor charge being elevated to a felony, substantially alter[s] the charge in the original indictment." State v. Moses, 154 N.C.App. 332, 338, 572 S.E.2d 223, 228 (2002).

North Carolina General Statutes, section 14-277.3 sets forth the offense of stalking, and provides in pertinent part:

(a) Offense. — A person commits the offense of stalking if the person willfully on more than one occasion follows or is in the presence of, or otherwise harasses, another person without legal purpose and with the intent to do any of the following:

(1) Place that person in reasonable fear either for the person's safety or the safety of the person's immediate family or close personal associates.

(2) Cause that person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment, and that in fact causes that person substantial emotional distress.

(b) Classification. — A violation of this section is a Class A1 misdemeanor. A person convicted of a Class A1 misdemeanor under this section, who is sentenced to a community punishment, shall be placed on supervised probation in addition to any other punishment imposed by the court. A person who commits the offense of stalking when there is a court order in effect prohibiting similar behavior by that person is guilty of a Class H felony. A person who commits the offense of stalking after having been previously convicted of a stalking offense is guilty of a Class F felony.

N.C. Gen.Stat. § 14-277.3(a), (b) (2005). In the instant case, defendant was charged with the offense of felony stalking, in part due to his prior conviction on 19 March 2002 for misdemeanor stalking.

North Carolina General Statutes, section 15A-928 provides in pertinent part:

(a) When 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. If a reference to a previous conviction is contained in the statutory name or title of the offense, the name or title may not be used in the indictment or information, but an improvised name or title must be used which labels and distinguishes the offense without reference to a previous conviction.

(b) An indictment or information for the offense must be accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense. At the prosecutor's option, the special indictment or information may be incorporated in the principal indictment as a separate count. Except as provided in subsection (c) below, the State may not refer to the special indictment or information during the trial nor adduce any evidence concerning the previous conviction alleged therein.

(c) After commencement of the trial and before the close of the State's case, the judge in the absence of the jury must arraign the defendant upon the special indictment or information, and must advise him that he may admit the previous conviction alleged, deny it, or remain silent. Depending upon the defendant's response, the trial of the case must then proceed as follows:

(1) If the defendant admits the previous conviction, that element of the offense charged in the indictment or information is established, no evidence in support thereof may be adduced by the State, and the judge must submit the case to the jury without reference thereto and as if the fact of such previous conviction were not an element of the offense. The court may not submit to the jury any lesser included offense which is distinguished from the offense charged solely by the fact that a previous conviction is not an element thereof.

. . . .

N.C. Gen.Stat. § 15A-928(a)-(c) (2005).

At the start of defendant's trial, and before the State made its motion to amend the superceding indictment, the trial court explained to defendant how evidence of his prior conviction for misdemeanor stalking could be introduced and admitted. The trial court explained that defendant would have the option of admitting the prior conviction so that the jury would...