Opinion
No. COA09-730.
Filed February 2, 2010.
Guilford County Nos. 07CRS100421-22, 08 CRS 23175.
Appeal by defendant from judgment entered 30 October 2008 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 18 January 2010.
Attorney General Roy Cooper, by Assistant Attorney General Nancy Reed Dunn, for the State. Faith S. Bushnaq for defendant-appellant.
Defendant James Joseph James was convicted of resisting a public officer, disorderly conduct, malicious conduct by a prisoner, and having attained habitual felon status. On appeal, he challenges only the malicious conduct conviction, arguing that the trial court erred in denying his motion to dismiss that charge because a fatal variance existed between the indictment and the proof offered at trial. We conclude, however, that the difference between the indictment and the proof was not material and, therefore, find no error.
Facts
At trial, the State's evidence tended to show the following facts. On the morning of 10 September 2007, defendant, who suffered from drug addiction, developed a plan to "go to the police, speak to Vice and Narcotics, get involved in the confidential informant program, and by doing so the police would give [him] money to go buy drugs which would . . . supply [his] habit." Defendant thought that he could take the money given to him as an informant, purchase drugs, turn over some of the drugs to the police, and keep the rest for himself.
With this idea in mind, defendant went to the High Point Police Department. He tried to enter the building through a side door that was a secured entrance not accessible to the public. Inside the building, Officer D. E. Griffiths and Officer J. S. Crouse began to hear "[e]xtremely loud banging, hollering, [and] shouting" coming from the side door. Upon investigating the noise, the officers observed defendant attempting to open the locked door and demanding to speak with the officer in charge. The officers repeatedly directed defendant to go to the main entrance of the building and ask to speak to the Watch Commander. Defendant, however, refused to leave and continued to yell loudly and aggressively and to bang on the door. Consequently, the officers ordered him to face a nearby wall and informed defendant he was being placed under arrest.
As the officers attempted to take defendant into custody, defendant struggled with the officers. Officer R. Henderson came to the aid of Officers Griffiths and Crouse, but the three were unable to handcuff defendant. Officer Henderson sprayed pepper spray on defendant, and Officer Crouse hit him with a small baton, but defendant continued to struggle. Ultimately, with the help of a fourth officer, the men were able to control defendant and handcuff him. Even in handcuffs, defendant continued to be "[e]xtremely aggressive, kicking, hollering, [and] still shouting."
Because defendant would not walk on his own, the officers picked defendant up to carry him to a patrol car so that they could transport him to the magistrate's office. When defendant kept kicking at the officers, they put leg restraints on him. Defendant still resisted being placed in a patrol car, and the officers ultimately transported defendant to the magistrate's office in the bed of a police pickup truck.
During the trip to the magistrate's office, Officers Griffiths and Crouse rode in the bed of the pickup truck with defendant. Defendant continued to struggle and threaten the officers. Upon arriving at the magistrate's office, defendant lifted himself up from the truck, turned toward Officer Griffiths, said "Get some of this," and spat at Officer Griffiths. The spit hit Officer Griffiths above his badge and on the side of his face. As defendant "went to spit again," the officers subdued him and placed a spit sock on his head to keep him from spitting at them anymore.
The officers secured defendant in a restraint chair, took him inside, and placed him in a holding cell while they went to the magistrate. Custody of defendant was then transferred to deputies of the Guilford County Sheriff's Department.
Defendant was indicted on one count each of resisting a public officer, disorderly conduct, and malicious conduct by a prisoner. Defendant was also indicted for being a habitual felon. The case went to trial on 27 October 2008. At trial, defendant testified on his own behalf that while he was in the truck on the way to the magistrate's office, he threw up, and at that point Officer Griffiths accused defendant of trying to spit on him. Defendant claimed that he never intentionally tried to spit on anyone, but after being pepper sprayed, he "continually was trying to spit and get that pepper spray out of [his] mouth." The jury returned a verdict convicting defendant of resisting a public officer, disorderly conduct, and malicious conduct by a prisoner.
Subsequently, as part of a plea arrangement involving other charges, defendant pled guilty to being a habitual felon. The court consolidated defendant's convictions in this case into a single judgment and sentenced defendant to a term of 107 to 133 months imprisonment. Defendant entered notice of appeal in open court.
Discussion
Defendant argues on appeal that the trial court erred in denying his motion to dismiss the charge of malicious conduct by a prisoner because of a fatal variance between the indictment and proof at trial. We disagree.
We review de novo the sufficiency of an indictment. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712, disc. review denied, 362 N.C. 368, 661 S.E.2d 890 (2008). For an indictment to be valid, it must "(1) identify the offense with which the accused is sought to be charged; (2) protect the accused from being twice put in jeopardy for the same offense; (3) enable the accused to prepare for trial; and (4) enable the court, on conviction or plea of nolo contendere or guilty, to pronounce sentence." State v. Goforth, 65 N.C. App. 302, 305, 309 S.E.2d 488, 491 (1983). "When a variance exists between allegations in the indictment and evidence presented at trial, the defendant may be deprived of adequate notice to prepare a defense." State v. Glynn, 178 N.C. App. 689, 696, 632 S.E.2d 551, 556, appeal dismissed and disc. review denied, 360 N.C. 651, 637 S.E.2d 180 (2006).
"In order for a variance to warrant reversal, the variance must be material. A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged." State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002) (internal citations omitted). Moreover, "`[a] variance will not result where the allegations and proof, although variant, are of the same legal significance.' . . . If a variance in an indictment is immaterial, it is not fatal." State v. Stevens, 94 N.C. App. 194, 197, 379 S.E.2d 863, 865 (quoting State v. Craft, 168 N.C. 208, 212, 83 S.E. 772, 774 (1914)), disc. review denied, 325 N.C. 275, 384 S.E.2d 527 (1989).
"In order to convict defendant of malicious conduct by a prisoner, the State must prove defendant, while in custody, threw bodily fluid at a government employee while the employee was engaged in employment responsibilities." State v. Artis, 174 N.C. App. 668, 672, 622 S.E.2d 204, 208 (2005), disc. review denied, 360 N.C. 365, 630 S.E.2d 188 (2006). Specifically, N.C. Gen. Stat. § 14-258.4(a) (2009) provides:
Any person in the custody of the Department of Correction, the Department of Juvenile Justice and Delinquency Prevention, any law enforcement officer, or any local confinement facility (as defined in G.S. 153A-217, or G.S. 153A-230.1), including persons pending trial, appellate review, or presentence diagnostic evaluation, who knowingly and willfully throws, emits, or causes to be used as a projectile, bodily fluids or excrement at a person who is an employee of the State or a local government while the employee is in the performance of the employee's duties is guilty of a Class F felony. The provisions of this section apply to violations committed inside or outside of the prison, jail, detention center, or other confinement facility.
In the present case, the variance at issue involves the identity of defendant's custodian at the time he emitted bodily fluids at Officer Griffiths. The indictment charging defendant alleged that he "did knowingly emit bodily fluid at Officer D. E. Griffiths, who was performing his duties of bringing the defendant before the magistrate in the Guilford County Jail #2, as an employee of the High Point Police Department. The defendant was under the custody of Guilford County Jail #2, High Point, NC at the time he committed this act." (Emphasis added.) At trial, however, the State's evidence showed that defendant was not in the custody of the Guilford County Jail at the time he emitted bodily fluids at Officer Griffiths, but was rather in the custody of officers of the High Point Police Department who were transporting him to the jail.
Contrary to defendant's argument, the identity of the custodian of a defendant is not an essential element of the offense of malicious conduct by a prisoner. It is only essential that the defendant be in the custody of the "Department of Correction, the Department of Juvenile Justice and Delinquency Prevention, any law enforcement officer, or any local confinement facility[.]" N.C. Gen. Stat. § 14-258.4(a). Whether defendant was in the custody of the Guilford County Jail or in the custody of a High Point police officer en route to the jail is not material to the issue whether defendant committed the offense of malicious conduct by a prisoner. Indeed, contrary to the closing sentence in the indictment placing custody in the jail, the beginning of the indictment states that the offense occurred while defendant was traveling to the magistrate in the custody of the High Point Police. As a result, defendant has failed to demonstrate any fatal variance. See Artis, 174 N.C. App. at 671-73, 622 S.E.2d at 207-08 (holding indictment charging defendant with malicious conduct by prisoner was sufficient when it did not specifically allege that he was "in custody" because defendant was an inmate at detention center and "[n]o conclusion could be reached other than that defendant was in custody").
Furthermore, defendant has not demonstrated that he was actually prejudiced by the variance in the indictment and the proof offered at trial. In general, when a variance does not involve an essential element of the crime, then "a variance between the indictment and the proof at trial does not require reversal unless the defendant is prejudiced as a result. This Court has required that a defendant demonstrate that he or she was misled by a variance, or hampered in his/her defense before this Court will consider the variance error." State v. Weaver, 123 N.C. App. 276, 291, 473 S.E.2d 362, 371 (internal citations omitted), disc. review denied and cert. denied, 344 N.C. 636, 477 S.E.2d 53 (1996).
Although defendant claims on appeal that "the indictment was essentially a decoy, throwing [defendant] off the period to which his defense should have been directed and diverting his attention to a period after the allegation at issue[,]" the defendant's theory at trial appears not to have relied on any difference in timing, but rather on a completely different version of the events that took place on the night in question. Defendant denied intentionally spitting on the officers at any point while in custody. He claimed only to have thrown up on or near Officer Griffiths and to have been falsely accused by Officer Griffiths of spitting on him. His defense — denial that he ever spit on any officer — does not depend upon the time in the evening that the incident occurred or the identity of the custodian. Instead, defendant's testimony reveals that he had a sufficient understanding of the factual allegations supporting the charge against him and was able to thoroughly prepare his defense of the charge.
Moreover, the indictment was specific about the identity of the person (Officer Griffiths) onto whom defendant allegedly emitted bodily fluids. It is undisputed that once defendant was in the custody of the Guilford County Jail, it would have been impossible for him to make any sort of contact with Officer Griffiths because Officer Griffiths had no further contact with defendant. Testimony revealed that once defendant was restrained in the chair after being unloaded from the truck, he was wheeled directly to a holding cell and then directly into the jail. Contact with Officer Griffiths concluded at the point of defendant's being unloaded from the truck. This lack of contact also counters defendant's claim that the error in the indictment was "rendered even more material" because the indictment "did not specify the bodily fluid at issue." Because at no point while defendant was in the custody of the jail did he have an opportunity to emit any bodily fluids onto Officer Griffiths, any emission of a bodily fluid would have to have occurred while defendant was in the custody of the High Point Police. Defendant could not have reasonably believed that the alleged incident occurred after he was no longer in Officer Griffiths' presence.
Any confusion on defendant's part caused by the wording of the indictment should have led defendant to file a motion for a bill of particulars directing the State to reveal information required by defendant to prepare for his defense. See State v. Garcia, 358 N.C. 382, 389, 597 S.E.2d 724, 732 (2004) ("The purpose of a bill of particulars is to `inform [the] defendant of specific occurrences intended to be investigated at trial' and `to limit the course of the evidence to [that] particular scope of inquiry.'" (quoting State v. Young, 312 N.C. 669, 676, 325 S.E.2d 181, 186 (1985))), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122, 125 S. Ct. 1301 (2005); see also N.C. Gen. Stat. § 15A-925(b) (2009) ("A motion for a bill of particulars must request and specify items of factual information desired by the defendant which pertain to the charge and which are not recited in the pleading, and must allege that the defendant cannot adequately prepare or conduct his defense without such information.").
Accordingly, we hold the trial court did not err in denying defendant's motion to dismiss the charge of malicious conduct by a prisoner. Defendant's remaining assignments of error set forth in the record on appeal, but not argued in his brief to this Court, are deemed abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges McGEE and ROBERT HUNTER, JR. concur.
Report per Rule 30(e).