IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-155
Filed: 7 November 2017
Mecklenburg County, Nos. 14 CRS 246563, 246566-67
STATE OF NORTH CAROLINA
v.
STACY ALLEN SIMMONS
Appeal by defendant from judgments entered 14 July 2016 by Judge Robert C.
Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 19
September 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Thomas O.
Lawton III, for the State.
W. Michael Spivey for defendant-appellant.
DAVIS, Judge.
The issue in this case is whether the trial court erred by allowing the State at
the beginning of trial to amend the indictment charging the defendant with
trafficking in heroin and instead charge him with trafficking in opiates. Stacy Allen
Simmons (“Defendant”) appeals from his convictions for possession of marijuana,
possession of cocaine, trafficking in opiates by transportation, and trafficking in
opiates by possession. Because we conclude that the State’s actions constituted a
substantial alteration of the indictment that is not permitted under our law, we
STATE V. SIMMONS
Opinion of the Court
vacate Defendant’s convictions for trafficking in opiates by transportation and by
possession.
Factual and Procedural Background
The State presented evidence at trial tending to establish the following facts:
On 26 November 2014, Officer Adam Thompson, along with five other officers of the
Charlotte-Mecklenburg Police Department, was patrolling the area of the Greenleafe
Inn in Charlotte, North Carolina. The Greenleafe Inn was known to the officers as a
“crime hotspot” where drug-related arrests had been made in the past.
In the parking lot, Officer Thompson observed a man sitting in the passenger
seat of a white utility van with its engine and lights turned off. He suspected the
man may have been waiting to buy or sell drugs. Officer Thompson approached the
van, and the occupant of the vehicle stated that his name was John Turner. After
Officer Scottie Carson noticed a crossbow on the floor of the vehicle, Officer Thompson
asked Turner to exit the van. As he did so, Turner wiped a white substance from his
pants that Officer Thompson suspected was cocaine.
The officers searched Turner and the vehicle and found a plastic wrapper
containing heroin residue in his pocket. They also discovered inside the van 32
syringes, 0.5 grams of heroin, and a spoon containing heroin residue. Turner told the
officers he was a heroin addict and was waiting on his dealer to arrive. He identified
Defendant as his heroin dealer and said that Defendant would be driving either a
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Opinion of the Court
black Lexus or a silver Kia minivan. Turner further informed the officers that they
would find heroin in a “Hide-A-Key” box under the hood of Defendant’s vehicle.
Officer Thompson then waited with Turner in his motel room for Defendant to
arrive. Eventually, a silver Kia minivan drove into the parking lot and parked across
from Turner’s room. Defendant exited the vehicle with a young child in his arms and
approached Turner’s room. Officer Thompson opened the door as Defendant prepared
to knock, and Defendant immediately turned and began walking away. Officer
Thompson ordered him to stop, and Defendant complied. Officer Thompson
proceeded to search Defendant but did not find any contraband. Officers Thompson
and Carson then asked Defendant if there was any heroin concealed on the child.
After an initial denial, Defendant admitted having placed a packet of heroin in the
child’s pants.
Defendant was arrested, and Officers Todd Zielinski and Jonathan Brito
conducted a search of the Kia. On the passenger side of the vehicle, they found two
digital scales, a partially smoked marijuana “blunt,” and $800 in cash. Under the
hood was a black “Hide-A-Key” box containing “balloons” of heroin as well as a pill
bottle containing marijuana, crack cocaine, and 17 hydrocodone pills. The officers
also found a revolver wrapped in a sock under the hood. Testing conducted by a
forensic chemist revealed that the hydrocodone weighed 4.62 grams, the heroin
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Opinion of the Court
recovered from the child’s pants weighed 0.84 grams, and the heroin found under the
hood of the Kia weighed 3.77 grams.
On 8 December 2014, Defendant was indicted by a grand jury on charges of
misdemeanor child abuse, possession of a firearm by a felon, possession of marijuana,
possession with intent to sell or deliver (“PWISD”) cocaine, PWISD heroin, trafficking
in heroin by transportation, trafficking in heroin by possession, possession of drug
paraphernalia, maintaining a vehicle or dwelling for the purpose of using controlled
substances, and possession of a Schedule III controlled substance. On 5 July 2016, a
hearing was held before the Honorable Robert C. Ervin in Mecklenburg County
Superior Court to address various pre-trial matters. At the hearing, the State
announced that it was dismissing five of the charges. As a result, the charges
remaining against Defendant were possession of a firearm by a felon, possession of
marijuana, PWISD cocaine, trafficking in heroin by transportation, and trafficking in
heroin by possession.
At that point in the proceedings, Defendant’s counsel informed the court that
Defendant “intend[ed] to admit to the heroin that was found in the pants leg of the
daughter.” The prosecutor then stated the following:
[PROSECUTOR]: Your Honor, I did have one thing,
and I apologize that I didn’t mention it yet. Quite frankly,
I wasn’t anticipating doing this, but based on what I’ve
been hearing from the defense, I think it’s appropriate.
The state would move to amend the trafficking
indictments. They right now read possession of heroin. I
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think the more appropriate word should be opiate or
opiates. . . . Defendant has been on notice that in addition
to heroin that was seized from the vehicle, there was also
hydrocodone that was seized from the vehicle, as he was
charged with that. That is one of the charges that’s been
dismissed this morning but doesn’t change the nature of
the offense. Defendant has a lab result that includes the
hydrocodone, includes the different bags of heroin that
were weighed. They all are the same exact, or treated
exactly the same under the law, and so we’d be moving to
amend the indictments just to change the word heroin to
opiates[.]
Defendant objected to the State’s motion to amend the indictment. However,
the trial court granted the State’s motion and allowed the amendment.
Defendant’s trial began that same morning. On 11 July 2016, the jury
convicted Defendant of possession of marijuana, possession of cocaine, trafficking in
opiates by transportation, and trafficking in opiates by possession. Defendant was
found not guilty of possession of a firearm by a felon.
The trial court consolidated the trafficking convictions and sentenced
Defendant to 70 to 93 months imprisonment. The trial court also consolidated his
convictions for possession of marijuana and cocaine and sentenced him to a term of 8
to 19 months imprisonment to be served consecutively to the trafficking sentence.
The court then suspended the sentence for the possession convictions, and Defendant
was placed on 36 months of supervised probation. Defendant gave oral notice of
appeal.
Analysis
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Opinion of the Court
Defendant’s sole argument on appeal is that the trial court erred by permitting
the State to amend his drug trafficking indictment by changing the substance
referenced therein from “heroin” to “opiates[.]” He contends that the effect of the
amendment was to substantially alter the trafficking charges in violation of N.C. Gen.
Stat. § 15A-923.
The statute proscribing trafficking in opiates provides, in pertinent part, as
follows:
Any person who sells, manufactures, delivers, transports,
or possesses four grams or more of opium or opiate, or any
salt, compound, derivative, or preparation of opium or
opiate . . . including heroin, or any mixture containing such
substance, shall be guilty of a felony which felony shall be
known as ‘trafficking in opium or heroin’ and if the
quantity of such controlled substance or mixture involved:
a. Is four grams or more, but less than 14 grams, such
person shall be punished as a class F felon . . . .
N.C. Gen. Stat. § 90-95(h)(4) (2015).
While heroin is specifically mentioned in the statutory language, hydrocodone
is also a covered substance under N.C. Gen. Stat. § 90-95(h)(4) as an opium
derivative. State v. Johnson, 214 N.C. App. 436, 441, 714 S.E.2d 502, 506, disc. review
denied, 365 N.C. 362, 718 S.E.2d 393 (2011). All opiates in a person’s possession may
be aggregated to reach the statutory weight threshold of four grams. See State v.
Hazel, 226 N.C. App. 336, 347, 739 S.E.2d 196, 202-03 (holding that heroin found on
defendant’s person could be combined with heroin found in defendant’s apartment to
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support trafficking conviction under N.C. Gen. Stat. § 90-95(h)(4)), appeal dismissed
and disc. review denied, 367 N.C. 219, 747 S.E.2d 582 (2013).
It is well established that “[a] felony conviction must be supported by a valid
indictment which sets forth each essential element of the crime charged.” State v.
LePage, 204 N.C. App. 37, 49, 693 S.E.2d 157, 165 (2010) (citation omitted). An
indictment that “fails to state some essential and necessary element of the offense” is
fatally defective. State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419
(citation and quotation marks omitted), disc. review improvidently allowed, 349 N.C.
289, 507 S.E.2d 38 (1998). Where an indictment is fatally defective, the superior
court lacks subject matter jurisdiction over the case. State v. Justice, 219 N.C. App.
642, 643, 723 S.E.2d 798, 800 (2012) (citation omitted).
We review the trial court’s granting of a motion to amend an indictment de
novo. State v. Avent, 222 N.C. App. 147, 148, 729 S.E.2d 708, 710 (citation omitted),
writ of supersedeas denied and disc. review denied, 366 N.C. 411, 736 S.E.2d 176
(2012). N.C. Gen. Stat. § 15A-923 provides that “[a] bill of indictment may not be
amended.” N.C. Gen. Stat. § 15A-923(e) (2015). “Our Supreme 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. De la Sancha Cobos, 211 N.C. App. 536, 541, 711 S.E.2d 464, 468 (2011)
(citation and quotation marks omitted). In determining whether an amendment
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amounts to a substantial alteration, courts “must consider the multiple purposes
served by indictments.” State v. Silas, 360 N.C. 377, 380, 627 S.E.2d 604, 606 (2006)
(citation omitted). These purposes are as follows:
(1) to provide certainty so as to identify the offense, (2) to
protect the accused from twice being put in jeopardy for the
same offense, (3) to enable the accused to prepare for trial,
and (4) to enable the court, on conviction or plea of guilty
or nolo contendere, to pronounce sentence according to the
rights of the case.
State v. Foster, 10 N.C. App. 141, 142-43, 177 S.E.2d 756, 757 (1970) (citation
omitted).
In Silas, our Supreme Court held that where an indictment alleges one theory
of an offense, the State may not later amend the indictment to allege a different
theory. Silas, 360 N.C. at 382, 627 S.E.2d at 607. In Silas, the defendant was initially
indicted for felonious breaking and entering with the intent to commit murder. Id.
at 379, 627 S.E.2d at 606. After the close of all the evidence, the indictment was
amended to change the felony the defendant allegedly intended to commit from
murder to assault with a deadly weapon. Id. The Court held that the amendment
was impermissible because “the indictment served as notice to defendant apprising
him of the State’s theory of the offense.” Id. at 382, 627 S.E.2d at 608. As a result,
“[t]he subsequent alteration prejudiced defendant as he relied upon the allegations
in the original indictment to his detriment in preparing his case upon the assumption
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Opinion of the Court
the prosecution would proceed upon a theory the defendant intended to commit
murder.” Id.
Similarly, in State v. Frazier, __ N.C. App. __, 795 S.E.2d 654, disc. review
denied, __ N.C. __, 799 S.E.2d 51 (2017), this Court held that an amendment to an
indictment that allowed the jury to convict the defendant of negligent child abuse
under a theory not alleged in the original indictment was impermissible. Id. at __,
795 S.E.2d at 656-57. The initial indictment alleged that the defendant committed
child abuse by negligently failing to treat her child’s chest and facial wounds. Id. at
__, 795 S.E.2d at 656. During trial, however, the State was permitted to amend the
child abuse indictment to allege that the defendant failed to provide a safe
environment for her child. Id. at __, 795 S.E.2d at 656. We held that “[u]nder this
new theory, the jury could convict based on a finding that Defendant’s failure to
provide a safe living environment was the cause of her child’s wounds in the first
instance, irrespective of whether she attempted to treat the wounds after they had
been inflicted.” Id. at __, 795 S.E.2d at 656-57. Thus, we concluded that the
amendment in Frazier constituted a substantial alteration of the indictment. Id. at
__, 795 S.E.2d at 656.
In the present case, Defendant argues that broadening the scope of his
indictment to include additional substances by changing “heroin” to “opiates” was a
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substantial alteration and thus an impermissible amendment of the indictment. We
agree.
It is well established that “amending an indictment by adding an essential
element is substantially altering the indictment.” De la Sancha Cobos, 211 N.C. App.
at 541, 711 S.E.2d at 468 (quotation marks and brackets omitted). This Court has
held that “the identity of the controlled substance that defendant allegedly possessed
is considered to be an essential element which must be alleged properly in the
indictment.” State v. Stith, __ N.C. App. __, __, 787 S.E.2d 40, 44 (2016) (citation and
quotation marks omitted), aff’d per curiam, __ N.C. __, 796 S.E.2d 784 (2017).
In State v. Ledwell, 171 N.C. App. 328, 614 S.E.2d 412, disc. review denied, 360
N.C. 73, 622 S.E.2d 624 (2005), we held that an indictment alleging possession of
methylenedioxyamphetamine was facially invalid for failing to allege a substance
listed under Schedule I of the North Carolina Controlled Substances Act. Id. at 333,
614 S.E.2d at 415. We ruled that while “3, 4-methylenedioxyamphetamine” was a
substance listed under Schedule I, the absence of the correct numerical prefix in the
indictment rendered it fatally flawed. Id. at 332-33, 614 S.E.2d at 414-15 (citation
omitted). This Court explained that “we cannot regard this defect as a mere
technicality, for the chemical and legal definition of these substances is itself
technical and requires precision.” Id. at 332, 614 S.E.2d at 415 (citation omitted); see
also State v. Ahmadi-Turshizi, 175 N.C. App. 783, 785-86, 625 S.E.2d 604, 605-06
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(noting “Schedule I of the North Carolina Controlled Substances Act . . . identifies a
long list of controlled substances by their specific chemical names” and holding that
indictment alleging possession, sale, and delivery of
methylenedioxymethamphetamine was defective for “fail[ing] to include ‘3, 4’ [prefix]
as required”), writ of supersedeas denied and disc. review denied, 369 N.C. 484, 631
S.E.2d 133 (2006).
Similarly, in LePage, we held that an indictment charging the defendant with
contaminating food or drink with a controlled substance was fatally defective because
it identified the alleged controlled substance as “benzodiazepines” rather than
“Clonazepam.” 204 N.C. App. at 54, 693 S.E.2d at 168. In explaining the importance
of the distinction, we stated as follows:
The term ‘benzodiazepine’ describes a class of drug which
encompasses a number of individual drugs. There is not a
drug called simply ‘benzodiazepine;’ rather, there exist
several drugs, including Clonazepam . . . all of which fall
within the class of benzodiazepines. . . . In essence,
Clonazepam is a benzodiazepine. However, not all
benzodiazepines are Clonazepam.
Id. at 52-53, 693 S.E.2d at 167. Thus, in assessing the validity of an indictment, the
distinction between a specific controlled substance and the category of controlled
substances to which it belongs is a critical one.
In State v. Williams, 242 N.C. App. 361, 774 S.E.2d 880 (2015), this Court held
that where an indictment for possession with intent to manufacture, sell, or deliver
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a Schedule I substance failed to allege possession of a substance classified under
Schedule I, the indictment could not be amended to properly allege possession of a
Schedule I substance. Id. at 368, 774 S.E.2d at 885. In that case, the original
indictment alleged that the defendant possessed methylethcathinone. Id. at 363-64,
774 S.E.2d at 883. We noted that, although methylethcathinone was not a Schedule
I substance, 4-methylethcathinone was, in fact, listed under Schedule I and the
indictment was amended prior to trial to add the prefix “4-” to the substance named
therein. Id. We held that because “the amendment effectively added an essential
element that was previously absent, it constituted a substantial alteration and, as a
result, was legally impermissible.” Id. at 368, 774 S.E.2d at 885-86 (citation omitted).
Here, the State broadened the scope of Defendant’s original indictment to
allege that he had trafficked in “opiates,” a category of controlled substances, rather
than “heroin,” a specific controlled substance. It did so for the purpose of bringing an
additional controlled substance — hydrocodone — within the ambit of the indictment.
Although heroin is an opiate, not all opiates are heroin. Therefore, when the original
indictment was amended to include hydrocodone, a new substance was effectively
alleged in the indictment. See Ahmadi-Turshizi, 175 N.C. App. at 784-85, 625 S.E.2d
at 605 (“[T]he identity of the controlled substance that defendant allegedly possessed
is . . . an essential element which must be alleged properly in the indictment.”
(citation omitted)).
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Our holding is consistent with the proposition that a critical purpose served by
the indictment requirement is to “enable the accused to prepare for trial.” Foster, 10
N.C. App. at 142, 177 S.E.2d at 757 (citation omitted). In this case, the State moved
to amend the indictment on the morning of trial. Until then, Defendant had
justifiably relied upon the original indictment in preparing his defense. This concern
was expressed by Defendant’s attorney in his objection to the State’s motion to amend
the indictment:
[DEFENDANT’S COUNSEL]: Well, your Honor, it’s
been our understanding all along that the heroin charge –
the trafficking in heroin – had to do specifically with the
3.7 as well as the .84 grams that was seized. The
hydrocodone was charged separately, and we had no
knowledge that this would be included in – or the state
would try to include this in the trafficking amount. At this
point this is the first I’m hearing of this.
Notably, the State sought to amend the indictment only after Defendant
informed the trial court of his intention to admit to possessing some, but not all, of
the heroin that was found by the officers during the 26 November 2014 incident. The
logical inference from this sequence of events is that upon learning of Defendant’s
trial strategy on the morning of trial, the State sought to thwart that strategy by
broadening the scope of the indictment. In essence, the State was permitted to
change the rules of the game just as the players were taking the field.
The State argues that because the amendment to the indictment at issue here
occurred before trial, Defendant was not prejudiced in his ability to prepare a defense.
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We rejected a similar argument in De la Sancha Cobos. There, the indictment
alleging conspiracy to traffic in cocaine was amended “[a]t the beginning of the trial
before the jury was empaneled” to specify the amount of cocaine. De la Sancha Cobos,
211 N.C. App. at 538, 711 S.E.2d at 466. In that case, this Court ruled that “[b]ecause
we have previously held that the weight of cocaine is an essential element of the
offense of conspiracy to traffic in cocaine, we conclude that amending an indictment
by adding an essential element is substantially altering the indictment.” Id. at 541,
711 S.E.2d at 468 (quotation marks and brackets omitted). Thus, the fact that the
amendment here occurred before trial had actually begun does not change our
determination that the amendment was impermissible.
Therefore, the trial court erred in allowing the State to amend Defendant’s
indictment. Accordingly, the convictions at issue must be vacated.
Conclusion
For the reasons stated above, we vacate Defendant’s convictions for trafficking
in opiates by transportation and trafficking in opiates by possession and remand for
resentencing.
VACATED IN PART AND REMANDED.
Judges BRYANT and INMAN concur.
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