Opinion
No. COA12–139.
2012-09-18
STATE of North Carolina v. Tion Lamichael BRADLEY.
Attorney General Roy Cooper, by Assistant Attorney General Thomas D. Henry, for the State. Ryan McKaig, for defendant-appellant.
Appeal by defendant from judgments entered 5 October 2011 by Judge John E. Nobles, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 16 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Thomas D. Henry, for the State. Ryan McKaig, for defendant-appellant.
CALABRIA, Judge.
Tion LaMichael Bradley (“defendant”) appeals from judgments entered upon (1) jury verdicts finding him guilty of common law robbery and second degree trespassing, and (2) his plea of guilty to attaining the status of an habitual felon. We find no error.
In the early morning hours of 6 January 2011, Sheila Darlene Grissett (“Grissett”) and Michelle Buie (collectively “the women”) were walking down a street in Wilmington, North Carolina, when they were approached by defendant. Defendant asked the women if they were looking for anything, and they indicated they were not. Defendant continued to follow the women for about three blocks.
Grissett entered a private residence to purchase cigarettes. After she exited, defendant again approached the women and offered to sell them crack. The women again declined. Defendant pulled out a gun and demanded money. Grissett refused, and defendant threw her to the ground. While she was on the ground, defendant searched her pockets. Defendant removed four five dollar bills from Grissett's pockets and fled.
Defendant was apprehended a short time later, and the women identified him as their assailant. Defendant was indicted for robbery with a dangerous weapon, second degree trespass, and attaining the status of an habitual felon. The robbery indictment identified the victim of the armed robbery as “Dralyn Griset.”
Defendant was arraigned on 10 May 2011. At the arraignment, the State made a motion to amend the robbery indictment to change the name of the victim to “Shelia Darlyn Grissett.” The trial court granted the motion over defendant's objection.
The victim's first name was misspelled in the amendment. The transcript reflects that the victim's first name is spelled “Sheila .”
Beginning 3 October 2011, defendant was tried by a jury in New Hanover County Superior Court. On 4 October 2011, the jury returned a verdict finding defendant guilty of common law robbery and second degree trespass. Defendant then pled guilty to attaining the status of an habitual felon. For the common law robbery conviction, the trial court sentenced defendant to a minimum of 79 months to a maximum of 104 months in the North Carolina Department of Correction. For the second degree trespass conviction, defendant was sentenced to 10 days, to be served concurrently with his sentence for common law robbery. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred by allowing the State to amend his indictment for robbery with a dangerous weapon. Specifically, defendant contends that amending the indictment to change the name of the victim from “Dralyn Griset” to “Shelia Dralyn Grissett” substantially altered the charge set forth in the indictment. We disagree.
“A bill of indictment may not be amended.” N.C. Gen.Stat. § 15A–923(e) (2011). This statute has been interpreted to forbid “ ‘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)(quoting State v. Carrington, 35 N.C.App. 53, 240 S.E.2d 475 (1978).
“A change in the name of the victim substantially alters the charge in the indictment” and thus, a trial court has no authority to amend an indictment to change the name of the victim. State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d 131, 144 (1994). However, this Court has allowed indictments to be amended to correct minor errors in the victim's name “where the variance was inadvertent and defendant was neither misled nor surprised as to the nature of the charges.” State v. Campbell, 133 N.C.App. 531, 535–36, 515 S.E.2d 732, 735 (1999).
Defendant relies upon State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967) and State v. Overman, 257 N.C. 464, 125 S.E.2d 920 (1962). In Bell, the Court held that a fatal variance existed when the indictment charged defendant with the robbery of Jean Rogers, and the evidence showed the correct name of the victim was Susan Rogers. 270 N.C. at 29, 153 S.E.2d at 744–45 (1967). In Overman, the Court held that a fatal variance existed when the indictment charged that Frank E. Nutley, rather than Frank E. Hatley, was the victim of a hit-and-run accident. 257 N.C. at 468, 125 S.E.2d at 924.
However, there is nothing in either Bell or Overman indicating that the incorrect names appearing on the indictments in those cases corresponded to either of the victims' actual first, middle, or last names. This Court has consistently upheld amendments to indictments in which the victim's name appeared incorrectly so long as the name being amended matched some portion of the victim's actual first, middle, or last names. See State v. Hewson, 182 N .C.App. 196, 211, 642 S.E.2d 459, 469 (2007)(allowing an amendment to change the victim's name from Gail Hewson Tice to Gail Tice Hewson); State v. Bailey, 97 N.C.App. 472, 475–76, 389 S.E.2d 131, 133 (1990)(allowing an amendment to change the victim's name from Pettress Cebron to Cebron Pettress); and State v. Marshall, 92 N.C.App. 398, 401–02, 374 S.E.2d 874, 875–76 (1988)(allowing an amendment when three indictments correctly listed the victim's name as Regina Lapish Foster, but the fourth, indicting the defendant for rape, listed the victim as Regina Lapish).
In the instant case, the grand jury's original indictment charged defendant with the offense of robbery with a dangerous weapon against Dralyn Griset. At defendant's arraignment, the trial court permitted the State, over defendant's objection, to amend the indictment to change the name to Shelia Dralyn Grissett. Under Hewson, Bailey, and Marshall, the addition of the victim's correct first name to her actual middle and last names did not substantially alter the charge in defendant's indictment. Defendant could not have been “misled [ ]or surprised as to the nature of the charges” against him. Campbell, 133 N.C.App. at 535–36, 515 S .E.2d at 735. This argument is overruled.
Defendant received a fair trial, free from error.
No error. Judges STROUD and McCULLOUGH concur.
Report per Rule 30(e).