Opinion
No. COA02-1443
Filed 16 September 2003 This case not for publication
Appeal by defendant from judgments entered 26 June 2002 by Judge W. Allen Cobb, Jr. in Superior Court, Pender County. Heard in the Court of Appeals 28 August 2003.
Attorney General Roy Cooper, by Assistant Attorney General Michelle B. McPherson, for the State. Geoffrey W. Hosford for defendant-appellant.
Pender County Nos. 01 CRS 2984, 50225; 02 CRS 255.
Jermaine Argusta Murphy (defendant) was convicted of possession of a firearm by a felon, carrying a gun into an alcohol establishment, and assault with a deadly weapon inflicting serious injury. After determining defendant to have a prior record level of III, the trial court sentenced defendant to a minimum term of thirty-four months and a maximum term of fifty months' imprisonment for assault with a deadly weapon inflicting serious injury, and to a minimum term of sixteen months and a maximum term of twenty months' imprisonment for possession of a firearm by a felon and carrying a gun into an alcohol establishment, to run consecutively with the first sentence. Defendant appeals.
The State's evidence at trial tended to show that near midnight on 5 May 2001, defendant and John Murphy were at the Jamaica Inn Club (Jamaica Inn) with a group of friends. The group had been at John Murphy's house earlier in the evening. The group consisted of defendant, John Murphy, Lashawna Johnson, Lashonda Johnson, Latonya Murphy, Shantay Murphy, Nicole Cooks, and Anthony Marcus. Members of the group, including defendant, had been drinking beer and smoking marijuana.
Makonya Heckstall (Heckstall) was dancing with friends, including William Jones (Jones), at the Jamaica Inn that night. Defendant approached her on the dance floor, asking her where she was from. When defendant saw Jones looking at him over Heckstall's shoulder, defendant asked Jones, "What the f__k you looking at?" Jones did not respond and defendant repeated the question. Defendant pulled out a gun and shot Jones in the arm. Defendant also shot Heckstall's brother, Ricky Heckstall, in the leg.
Torence Bryant (Bryant) was shooting pool at the Jamaica Inn when he heard gunshots from the dance floor. Defendant ran into the pool room and pointed "a small revolver, a rusty color and old," at Bryant. Bryant asked defendant, "What are you raising you[r] gun at me for? . . . I don't know you." Defendant responded by shooting Bryant in the torso. Defendant ran out of the Jamaica Inn and left with his friends, returning to John Murphy's house.
Several witnesses testified that while they did not see the shooter, they heard gunshots in the Jamaica Inn during the early hours of 6 May 2001. At trial, Bryant and Heckstall identified defendant as the shooter. While Bryant was in the hospital, he identified defendant as the shooter in a photographic array on 11 May 2001. The week before trial Heckstall identified defendant as the shooter in a photographic array shown to her by Detective Wells of the Pender County Sheriff's Department.
Detective Wells arrested defendant on 16 October 2001 in Duplin County. When he was arrested, defendant had in his possession a .38 caliber short Colt revolver, matching the description given by Bryant.
Defendant was indicted on three counts of attempted murder, three counts of assault with a deadly weapon with intent to kill inflicting serious injury, one count of possession of a firearm by a felon, and one count of carrying a gun into an alcohol establishment. Prior to the empanelment of the jury, the State moved to amend the indictment for the charge of possession of a firearm by a felon, by adding the date of 6 May 2001 to the indictment where no date had previously been included in the indictment for that charge. Over defendant's objections, the trial court allowed the State's motion. The trial court dismissed the three counts of attempted murder following a motion to dismiss and later dismissed two of the three counts of assault with a deadly weapon with intent to kill, inflicting serious injury. After both sides presented their evidence, the jury found defendant guilty of assault with a deadly weapon inflicting serious injury, possession of a firearm by a felon, and carrying a gun into an alcohol establishment.
I.
Defendant argues the trial court erred in granting the State's motion to amend the indictment for possession of a firearm by a felon to insert the date of that possession as 6 May 2001 where, prior to such amendment, the indictment alleged no date for the offense. N.C. Gen. Stat. § 15A-923(e) (2001) provides, in pertinent part, that "[a] bill of indictment may not be amended." However, this provision has been given a narrow construction by our Supreme Court by defining the term "amendment" as "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). Therefore, where the change to the indictment does not "substantially alter the charge," such a change does not violate the provisions of N.C.G.S. § 15A-923(e). Price, 310 N.C. at 598-99, 313 S.E.2d at 558-59.
Generally, our State's Courts have held that changing the dates in an indictment does not substantially alter the charge, and is therefore not a violation of N.C.G.S. § 15A-923(e). See, e.g., Price, at 598-99, 313 S.E.2d at 558-59; State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519 (1994); State v. Kamtsiklis, 94 N.C. App. 250, 254-55, 380 S.E.2d 400, 402, appeal dismissed and disc. review denied, 325 N.C. 711, 388 S.E.2d 466 (1989); State v. Cameron, 83 N.C. App. 69, 74, 349 S.E.2d 327, 331 (1986). In fact, the date an offense is committed is normally not an essential or substantial fact and "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." Cameron, 83 N.C. App. at 72, 349 S.E.2d at 329.
However, a change in the indictment relating to the time of the offense "does become material and of essence when it deprives a defendant of an opportunity to adequately present his defense," such as an alibi or other defense where time is relevant. State v. Campbell, 133 N.C. App. 531, 536, 515 S.E.2d 732, 735-36, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). Despite defendant's contention in his brief that he was unable to prepare a sufficient defense to the charge because of the possible confusion of the date of the offense, there is no evidence in the record of an alibi defense. See Kamtsiklis, 94 N.C. App. at 255, 380 S.E.2d at 402 (noting that the "defendant did not raise an alibi defense or any other defense which would make time critical to his defense"). Defendant argues he could not be sure whether he was being charged with possessing a firearm on 6 May 2001, the date of the incident at Jamaica Inn, or on 1 October 2001, the date he was arrested in Duplin County. However, all of the other charges against defendant brought at the same time as the charge of possession of a firearm by a felon arose from the 6 May 2001 incident at the Jamaica Inn. Under these facts, we do not find that defendant was surprised or misled by the nature of the charges by allowing the State to add the 6 May 2001 date to the indictment for the charge of possession of a firearm by a felon. See Campbell, 133 N.C. App. at 535-36, 515 S.E.2d at 735. We conclude that the addition of the date of 6 May 2001 was not an amendment prohibited by N.C.G.S. § 15A-923(e). This assignment of error is overruled.
II.
Defendant next assigns error to the trial court's granting of the State's motion to reopen its case to present additional evidence on the charge of possession of a firearm by a convicted felon. N.C. Gen. Stat. § 15A-1226(b) (2001) states that "[t]he judge in his discretion may permit any party to introduce additional evidence at any time prior to verdict." This statute has been held to be "a clear authorization for a trial judge, within his discretion, to permit a party to introduce additional evidence at any time prior to the verdict," even "new evidence which could have been offered in the party's case in chief." State v. Quick, 323 N.C. 675, 681, 375 S.E.2d 156, 159 (1989).
"The manner and presentation of evidence is largely in the discretion of the trial judge and his control of the case will not be disturbed absent a manifest abuse of discretion." State v. Goldman, 311 N.C. 338, 350, 317 S.E.2d 361, 368 (1984). Our Supreme Court stated in Goldman that it "has long recognized that the trial court has the discretion to allow either party to recall witnesses to offer additional evidence, even after jury arguments." Goldman at 350, 317 S.E.2d at 368. This Court has also held that it was not an abuse of the trial court's discretion to allow the State to reopen its case to present further evidence on an issue even after the defendant had made a motion to dismiss based on that issue. See State v. Hudson, 19 N.C. App. 440, 441-42, 199 S.E.2d 161, 162-63, cert. denied, 284 N.C. 256, 200 S.E.2d 656 (1973). Defendant argues in his brief that since he had not made a motion to dismiss the charge of possession of a firearm by a felon, Hudson can be distinguished. We find this argument to be without merit. We hold that the trial court did not abuse its discretion by allowing the State to reopen its case and present testimony to establish defendant's prior felony convictions. Defendant's assignment of error is overruled.
III.
Defendant also argues that the trial court erred in denying his motions to dismiss the charge of possession of a firearm by a felon and to set aside the verdict. In order to be entitled to a motion to dismiss, the trial court must find that, considering all the evidence in a light most favorable to the State and giving the State every reasonable inference therefrom, there is not substantial evidence of each element of the crime charged. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
Defendant argues there was not substantial evidence that defendant possessed a firearm on 6 May 2001. We disagree. Heckstall testified that while at the Jamaica Inn on 6 May 2001, she was dancing with Jones when defendant approached her and asked where she was from. Heckstall testified that when defendant saw Jones looking at him over Heckstall's shoulder, defendant asked Jones what he was looking at, but Jones did not respond. Heckstall testified that defendant repeated the question to Jones and then pulled out a gun and fired two shots. Heckstall testified that one of the gunshots hit Jones in the arm and the other hit her brother, Ricky Heckstall, in the leg.
Bryant testified that on 6 May 2001, while shooting pool at the Jamaica Inn, he heard gunshots, at which point defendant came running into the room where Bryant was playing pool. Bryant testified that defendant pointed "a small revolver, a rusty color and old," at Bryant. Bryant responded, "What are you raising you[r] gun at me for? . . . I don't know you." Defendant then shot Bryant in the torso. When Bryant was shown one of the guns later recovered from defendant's possession, Bryant testified that the gun was approximately the same size and that its top looked similar to the gun defendant used to shoot Bryant.
This testimony constituted substantial evidence that defendant possessed a firearm on 6 May 2001, sufficient to overcome defendant's motions to dismiss the charge of possession of a firearm by a felon and to set aside the verdict.
"The denial of a motion to set aside the verdict on the basis of insufficient evidence is within the discretion of the trial court and is reviewable on appeal under an abuse of discretion standard." State v. Fleming, 350 N.C. 109, 146, 512 S.E.2d 720, 745, cert. denied, 528 U.S. 941, 145 L.Ed.2d 274 (1999). There was substantial evidence that defendant did possess a firearm on 6 May 2001, and the jury's verdict was consistent with that evidence. The trial court did not abuse its discretion in denying defendant's motions to dismiss and to set aside the verdict. Defendant's argument is overruled.
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).