NO



NO. COA09-1112 JUDICIAL DISTRICT 19-C

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA, )

Plaintiff, ) From Rowan County

v. ) 06 CrS 57256

) 06 CrS 57259-61

FREDERICK TUCKER, ) 06 CrS 57263

Defendant. ) 06 CrS 57538-40

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DEFENDANT / APPELLANT’S BRIEF

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TABLE OF CASES AND AUTHORITIES iii

QUESTIONS PRESENTED 1

STATEMENT OF THE CASE 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW 3

STATEMENT OF THE FACTS 3

ARGUMENTS

I. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE DEFENDANT’S CONVICTION FOR TRAFFICKING IN OPIUM OR HEROIN (06 CRS 57259), WHEN THE INDICTMENT ALLEGED THAT THE DEFENDANT POSSESSED OPIUM, BUT THE STATE DID NOT PRESENT EVIDENCE OF OPIUM. 5

II. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND INDICTMENTS BY CHANGING THE DATE OF OFFENSE, IMMEDIATELY PRIOR TO TRIAL 10

CONCLUSION 16

WORD COUNT CERTIFICATION 16

CERTIFICATE OF SERVICE 17

TABLE OF CASES AND AUTHORITIES

Cases

State v. Ahmadi-Turshizi, 175 N.C. App. 783, 625 S.E.2d 604, disc. review denied, 360 N.C. 484, 631 S.E. 2d 133 (2006) 8, 9

State v. Benton, 10 N.C. App. 280, 178 S.E.2d 81 (1970) 10

State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994) 13

State v. Faircloth, 297 N.C. 100, 253 S.E.2d 890 (1979) 6

State v. Gibson, 169 N.C. 318, 85 S.E. 7 (1915) 7

State v. Law, 227 N.C. 103, 40 S.E. 2d 699 (1946) 6

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) 8

State v. Locklear, 117 N.C. App. 255, 450 S.E.2d 516 (1994) 11

State v. McDowell, 1 N.C. App. 361, 161 S.E.2d 769 (1968) 10

State v. Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d 649, 651 (1985) 10

State v. Pulliam, 78 N.C. App. 129, 336 S.E.2d 649 (1985) 6

State v. Silas, 360 N.C. 377, 627 S.E.2d 604 (2006) 13

State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979) 5

State v. Wilson, 264 N.C. 373, 141 S.E.2d 801 (1965) 14

Statutes

N.C.G.S. § 15A-1442 3

N.C.G.S. § 15A-923. 12, 13

N.C.G.S. § 90-90 7, 8

N.C.G.S. § 90-91 7

N.C.G.S. § 90-93 8

N.C.G.S. § 90-95(h)(4) 5

QUESTIONS PRESENTED FOR REVIEW

I. IS THE EVIDENCE INSUFFICIENT TO SUPPORT THE DEFENDANT’S CONVICTION FOR TRAFFICKING IN OPIUM OR HEROIN (06 CRS 57259), WHEN THE INDICTMENT ALLEGED THAT THE DEFENDANT POSSESSED OPIUM, BUT THE STATE DID NOT PRESENT EVIDENCE OF OPIUM?

II. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND INDICTMENTS BY CHANGING THE DATE OF OFFENSE, IMMEDIATELY PRIOR TO TRIAL?

STATEMENT OF THE CASE

The defendant was tried during the 2 February 2009 Superior Court Criminal Session of Rowan County, the Honorable John L. Holshouser, Jr., presiding. The defendant was found guilty of possession of stolen goods/property (06 CrS 57256), trafficking in opium or heroin (06 CrS 57259), trafficking in cocaine (06 CrS 57260), PWISD cocaine (06 CrS 57261), maintaining a vehicle/dwelling place CS (06 CrS 57263), PWIMSD marijuana (06 CrS 57538), PWIMSD cocaine (06 CrS 57539), and possession of firearm by felon (06 CrS 57540). On 6 February 2009, Judge Holshouser entered a judgment in 06 CrS 57259, giving the defendant an active sentence of 225 to 279 months and fining him $500,000 (R pp. 101-102). The remaining convictions were consolidated and the defendant received a sentence of 35 to 42 months, beginning at the expiration of the first sentence, and an additional fine of $50,000 (R pp. 103-104).

Defendant gave notice of appeal (T p. 347). The trial court allowed defendant’s motions to extend time to deliver the transcript and to extend time to serve the proposed record (R pp. 112, 115). The proposed record was served on 9 July 2009 (R p. 119), filed with the Court of Appeals on 19 August and docketed on 2 September 2009 (R p. 1). The printed record was mailed 8 September 2009. The Court of Appeals allowed defendant’s motion and extended the time to file the appellant’s brief to 22 October 2009.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

The defendant appeals as a matter of right, pursuant to N.C.G.S. § 15A-1442.

STATEMENT OF THE FACTS

At trial, the State’s evidence tended to show as follows.

24 September 2006

After obtaining a search warrant, detective Jason Owens and several other officers from the Rowan County Sheriff’s Office went to Mr. Tucker’s home (T pp. 52-55; R pp. 42-56). The officers handcuffed Mr. Tucker, his girlfriend, and one other person while they conducted a search of the house (T p. 55-56). The officers confiscated a number of items from the home, including a laptop computer, a mig welder, and a generator, all of which had been reported stolen (T pp. 56-57). Also seized during the search were some bags containing crack cocaine (T pp. 162, 169, 172, 175), powdered cocaine (T pp. 160, 168, 172, 174-175), marijuana (T pp. 119, 132, 138), and a number of pill bottles (T pp. 131, 144, 163-166). Some of the pills were later analyzed to contain hydrocodone (T pp. 173) and others to contain dihydrocodone (T pp. 173-174).

Mr. Tucker was taken into custody for felonious possession of stolen goods (T p. 194). He was advised of his rights and interviewed, and he signed a statement written by detective Owens (T pp. 194, 196-197). In the statement, Mr. Tucker acknowledged that he sold marijuana, and that the cocaine belonged to him. He stated that the pills were brought to him by people who needed money; that he acted as a pawnbroker, holding the pills until he was repaid (T p. 203).

28 September 2006

Using a second search warrant, detective Owens and other officers searched Mr. Tucker’s home again on 28 September. The officers again seized a number of items, including more rock cocaine (T pp. 223, 254, 257) and marijuana (222, 252-253, 257). They also found several firearms (T pp. 224-226) and seized property reported as stolen (R p. 63, T pp. 219). Mr. Tucker’s girlfriend was present during the search, but Mr. Tucker was not, because he was still in custody after his arrest four days earlier (T pp. 258, 267-268).

ARGUMENTS

I. THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE DEFENDANT’S CONVICTION FOR TRAFFICKING IN OPIUM OR HEROIN (06 CRS 57259), WHEN THE INDICTMENT ALLEGED THAT THE DEFENDANT POSSESSED OPIUM, BUT THE STATE DID NOT PRESENT EVIDENCE OF OPIUM.

ASSIGNMENT OF ERROR 4

R pp. 101-102

Introduction

The indictment in 06 CrS 57259 specifically alleged that the defendant possessed opium. None of the State’s evidence at trial indicated that the defendant had possessed opium. Therefore, defendant argues that there was insufficient evidence to support the charged offense.

Standard of Review

This Court reviews de novo whether the State presented evidence sufficient to survive a motion to dismiss. In order to withstand a motion to dismiss, the State must present substantial evidence of each essential element of the crime charged. State v. Smith, 40 N.C. App. 72, 252 S.E.2d 535 (1979).

Factual Background

Defendant Frederick Tucker was indicted on a charge of trafficking opium or heroin under N.C.G.S. § 90-95(h)(4). The indictment specifically alleged that he had possessed “more than 28 grams of opium which is included in Schedule II of the North Carolina Controlled Substances Act.” (R p. 9). At trial, the State presented evidence that some pills found in Mr. Tucker’s home contained hydrocodone, “a Schedule III preparation of an opiate derivative.” (T p. 173). Other pills were analyzed to contain “[d]ihydrocodone,” described as a “Schedule III preparation of an opiate derivative.” (T p. 173; also T p. 174). The State presented no evidence that opium was found in the home.

At the close of the State’s case, the defendant’s attorney made a motion to dismiss the trafficking charge and other charges, based on the insufficiency of the evidence (T p. 270). The court denied the motion (T p. 271). Mr. Tucker was subsequently convicted of the trafficking charge (R pp. 101-102).

Law and Discussion

A defendant must be convicted, if at all, of the particular offense charged in the indictment. The State's proof must conform to the specific allegations contained in the indictment. If the evidence fails to do so, it is insufficient to convict the defendant. State v. Faircloth, 297 N.C. 100, 253 S.E.2d 890 (1979). Therefore, a challenge to a fatal variance between indictment and proof may be raised by a motion to dismiss for insufficient evidence. State v. Pulliam, 78 N.C. App. 129, 336 S.E.2d 649 (1985), quoting State v. Law, 227 N.C. 103, 40 S.E. 2d 699 (1946). In Law, Chief Justice Stacey said:

The question of variance may be raised by demurrer to the evidence or by motion to nonsuit. "It is based on the assertion, not that there is no proof of a crime having been committed, but that there is none which tends to prove that the particular offense charged in the bill of indictment has been committed. In other words, the proof does not fit the allegation, and, therefore, leaves the latter without any evidence to sustain it. It challenges the right of the State to a verdict upon its own showing, and asks that the court, without submitting the case to the jury, decide, as a matter of law, that the State has failed in its proof."

Id. at 104, 40 S.E. 2d at 700, quoting State v. Gibson, 169 N.C. 318, 322, 85 S.E. 7, 9 (1915).

Here, the indictment specifically alleged that the defendant possessed a substance – opium – which was not actually found on the defendant or in his home when it was searched. Instead, the State presented evidence that pills containing opiate derivatives were found in the defendant’s home. Hydrocodone was one of the substances identified; it is an opiate derivative, and it appears on the list of Schedule II controlled substances in N.C.G.S. § 90-90, not on the list of Schedule III controlled substances in N.C.G.S. § 90-91, as the State’s witness testified. Opium also appears on that list, which underscores the fact that hydrocodone and opium are separate and distinct substances.

The State also presented evidence that pills containing a substance called “dihydrocodone” was found in the defendant’s home. “Dihydrocodone” is assumed to be an incorrect transcription of dihydrocodeine, which is listed as an opiate on Schedule II and as a narcotic drug on Schedules III and IV. N.C.G.S. §§ 90-90(2), 90-91(d), 90-93(a)(1). Again, opium also appears in each of these three schedules, emphasizing the fact that dihydrocodeine is a separate and distinct substance from opium.

This Court has previously determined that a substance listed on an indictment must be the exact substance listed on the statutory schedule of controlled substances. 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), the indictment alleged that the defendant possessed “Methylenedioxyamphetamine (MDA), a controlled substance included in Schedule I of the North Carolina Controlled Substances Act.” Id. at 333, 614 S.E.2d at 415. The Court vacated the defendant’s indictment because the substance listed on the indictment did not appear on Schedule I, which identifies “3, 4-methylenedioxy methamphetamine” as a controlled substance. Id. at 333, 614 S.E.2d at 415.

Likewise, in State v. Ahmadi-Turshizi, 175 N.C. App. 783, 625 S.E.2d 604, disc. review denied, 360 N.C. 484, 631 S.E. 2d 133 (2006), the indictments charged the defendant with possessing, selling and delivering “methylenedioxymethamphetamine, a controlled substance which is included in Schedule I of the North Carolina Controlled Substances Act.” Id. at 785, 625 S.E.2d at 605. As in Ledwell, this Court vacated the defendant’s convictions, holding that the indictment was fatally flawed because “the substance listed on the defendant’s indictment does not appear in Schedule I of our Controlled Substances Act.” Id. at 786, 625 S.E.2d. at 606. This Court held that “when an indictment fails to list a controlled substance by its chemical name as it appears in Schedule I of the North Carolina Controlled Substances Statutes, section 90-89, the indictment must fail.” Id. at 785, 625 S.E.2d. at 605.

In those two cases, this Court vacated flawed indictments which had simply omitted the prefix “3, 4-” in the name of the substance charged. Here, the error is far more grievous. This indictment charges trafficking of a substance – opium – for which absolutely no evidence exists. And the opiate-derived substances which were identified as being present – hydrocodone and dihydrocodeine (“dihydrocodone”) – were not listed in the indictment at all. Moreover, the testimony was that the particular form of the dihydrocodeine found in defendant’s home was a Schedule III preparation of that substance, in contrast to the Schedule II allegation in the indictment.

Although defense counsel did not specifically raise this issue at trial, the matter is preserved for appeal because the trial lawyer made a properly preserved motion to dismiss. “The State’s proof must conform to the specific allegations contained in the indictment. If the evidence fails to do so, it is insufficient to convict the defendant. Therefore, a challenge to a fatal variance between indictment and proof may be raised by a motion to dismiss for insufficient evidence.” State v. Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d 649, 651 (1985). State v. Benton, 10 N.C. App. 280, 281, 178 S.E.2d 81, 82 (1970); State v. McDowell, 1 N.C. App. 361, 363, 161 S.E.2d 769, 770-71 (1968).

Conclusion

The indictment specifically alleged that the defendant had trafficked in opium, but the State’s evidence tended to show that the defendant possessed drugs other than opium. Because the proof at trial varied from the facts alleged in the indictment, the trial court erred by denying defendant’s motion to dismiss for insufficient evidence at the close of the State’s case. Therefore, this Court should vacate the defendant’s conviction for trafficking in 06 CrS 57259.

II. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND INDICTMENTS BY CHANGING THE DATE OF OFFENSE, IMMEDIATELY PRIOR TO TRIAL.

ASSIGNMENT OF ERROR 2

T pp. 22, 29; R p. 82.

Introduction

Just before trial, the trial allowed the State’s motion to amend three indictments by changing the alleged date of offense. Defendant argues that the alterations to the indictments substantially changed the offenses charged and prejudiced the defendant by affecting his ability to prepare for trial.

Standard of Review

Whether a change in an indictment is a substantial alteration or not presents a question of law and is reviewable de novo. State v. Locklear, 117 N.C. App. 255, 450 S.E.2d 516 (1994).

Factual Background

Eight indictments were issued against defendant Frederick Tucker in January 2007. Five of the indictments charged him with criminal acts committed on 24 September 2006 (R pp. 4, 9, 14, 19, 24), and three of the indictments listed an offense date of 28 September 2006 (R pp. 29, 34, 39).

The week prior to trial, Mr. Tucker’s attorney filed a motion to dismiss the three cases charged in the indictments with the 28 September date of offense (R pp. 76-77). Those indictments charged possession with intent to manufacture, sell or distribute marijuana (06 CrS 57538), possession with intent to manufacture, sell or distribute cocaine (06 CrS 57539), and possession of a firearm by a felon (06 CrS 57540). The defendant’s motion noted that Mr. Tucker had been arrested on 24 September 2006, and that he was still incarcerated in the Rowan County Detention Center on 28 September 2006. The motion asserted that since Mr. Tucker could not have committed the acts charged as occurring on 28 September, the court should dismiss those indictments (R pp. 76-77).

The State filed a motion one day later, asking the court to amend the indictments with the 28 September 2006 date by changing the date of offense to 24 September 2006. The State alleged that this amendment would not change the nature of the offenses charged and so was permissible, under N.C.G.S. § 15A-923(f) (R pp. 82-83).

At the beginning of Mr. Tucker’s trial, the court heard the State’s motion to amend the indictments, which the State acknowledged was spurred by the defendant’s motion to dismiss (T pp. 22-23). In spite of the defendant’s opposition, the court allowed the State’s motion to amend, ruling that changing the date of offense from 28 September to 24 September “does not substantially change the nature of the offense or the charge set forth in the indictment.” (T p. 29).

The trial commenced, and the jury found Mr. Tucker guilty of all eight charged offenses. At sentencing, the trial court entered two judgments. The first judgment sentenced the defendant for the trafficking charge (R pp. 101-102). The court then consolidated the seven other convictions – including the three arising from the amended indictments – into a single judgment for sentencing (R pp. 106-108).

Discussion

Our statutes provide, in plain language, that a bill of indictment cannot be amended. N.C.G.S. § 15A-923(e). However, North Carolina appellate courts have allowed amendment, unless the change would substantially alter the charge set forth in the indictment. State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994).

Recently, in State v. Silas, our Supreme Court has reviewed the issue of amended indictments and has expressed a standard for determining whether the amendment amounts to a substantial alteration of the charged offense:

In enacting Chapter 15A of the General Statutes, the Criminal Procedure Act, the General Assembly provided that a bill of indictment may not be amended. This Court has interpreted that provision to mean a bill of indictment may not be amended in a manner that substantially alters the charged offense. 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.

State v. Silas, 360 N.C. 377, 379-80, 627 S.E.2d 604, 606 (2006) (quotations, citations, and alterations omitted; emphasis added).

In Silas, that Court elaborated on the concept of “substantial alteration”: “[w]hen the prosecution amends an indictment in such a manner that the defendant can no longer rely upon the statement of the intended felony in the indictment, such an amendment is a substantial alteration and is prohibited by N.C.G.S. § 15A-923(e).” Id. at 382, 627 S.E.2d at 607. To allow such practice would enable the State to thwart the very purpose of an indictment, “'“to enable the accused to prepare for trial.”'” Id. (citations omitted). Although the general rule is that the date of offense is not an essential element of an offense, our courts have recognized specific exceptions to this rule. One such exception is when a defendant relies on the dates alleged in the indictment to present an alibi or reverse alibi defense. In such a case, a variance as to time becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense. State v. Wilson, 264 N.C. 373, 141 S.E.2d 801 (1965).

Here, in preparing a defense, the defendant was entitled to rely on the specific dates of offense alleged in the original indictments. Relying on the allegations of the original indictments, counsel for the defendant could structure his presentation around the fact that Mr. Tucker was in jail on 28 September, and that is was therefore impossible for the defendant to have committed the offenses alleged on that date. The defendant’s pre-trial motion to dismiss, notifying the trial court that he had been in jail on 28 September and thus had an alibi, gave clear notice to the State that this would be the theory of defense against those charges. By relying on the date alleged in the indictments to present an alibi defense, the offense date became an essential element of the charges.

However, as the trial began, the trial court allowed the State to amend those indictments and change the date of offense to 24 September. Contrary to the trial court’s assertion that such amendment did not constitute a substantial change in the charges, the amendment had a huge negative effect on Mr. Tucker’s ability to defend against those charges. First, by changing the date to 24 September, Mr. Tucker was deprived of his otherwise-uncontroverted alibi defense. Second, because of the immediacy of the trial, he was also denied an opportunity to prepare an effective case against the State’s new allegations in the amended indictments.

Conclusion

The defendant was prejudiced by the trial court’s decision to allow amendment of the offense date on three indictments as the trial began. The defendant’s pretrial motion had given de facto notice to the State that an alibi defense would be pursued at trial. Therefore, the variance as to time was material and of the essence, with the amendments substantially changing the charged offenses and depriving the defendant of an opportunity to present his prepared defense. Furthermore, the timing of the decision prevented the defendant from being able to prepare an alternate defense. Thus, it was error for the trial court to allow the State’s motion to amend the indictment, and Mr. Tucker is entitled to have his convictions in 06 CrS 57538, 06 CrS 57539 and 06 CrS 57540 vacated.

If this Court rules that these three convictions must be vacated, the other cases with which they were consolidated for sentencing – 06 CrS 57256 (possession of stolen goods/property), 06 CrS 57260 (trafficking in cocaine), 06 57261 (PWISD cocaine) and 06 CrS 57263 (maintaining a vehicle/dwelling place) must be remanded for resentencing.

CONCLUSION

For the reasons argued above, this Court must vacate the defendant’s convictions.

Respectfully submitted, this 27th day of October, 2009.

_____________________________

Michael E. Casterline

Attorney for Appellant

68 North Market Street

Asheville, NC 28801

828/ 253-6401 mcasterline@

WORD COUNT CERTIFICATION

This brief, submitted in 14 pt. New Times Roman type, contains fewer than 8,750 words, including any footnotes and citations in the text. This brief is therefore within the word-count limit for briefs in proportional type, as allowed by N.C. R. App. P. 28(j)(2).

Respectfully submitted, this 27th day of October, 2009.

____________________________

Michael E. Casterline

Attorney for Appellant

CERTIFICATE OF SERVICE

This is to certify that the undersigned has this date filed the foregoing DEFENDANT/APPELLANT’S BRIEF by mailing it to the Clerk of the North Carolina Court of Appeals, and served a copy upon all parties to this cause by depositing a copy hereof in a postpaid wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service, properly addressed to the attorney or attorneys for said parties, as listed below.

THIS, the 27th day of October, 2009.

_____________________________

Michael E. Casterline

Attorney at Law

68 North Market Street

Asheville, NC 28801

Daniel S. Johnson

Special Deputy Attorney General

NC Department of Justice

PO Box 629

Raleigh, NC 27602

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