{ "id": 8526676, "name": "STATE OF NORTH CAROLINA v. FRANKLIN RAY HYDER", "name_abbreviation": "State v. Hyder", "decision_date": "1990-09-18", "docket_number": "No. 8924SC1340", "first_page": "270", "last_page": "278", "citations": [ { "type": "official", "cite": "100 N.C. App. 270" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "316 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695666 ], "opinion_index": -1, "case_paths": [ "/nc/316/0024-01" ] }, { "cite": "394 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "100 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526277 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/100/0058-01" ] }, { "cite": "340 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "71", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "375 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527498 ], "year": 1989, "pin_cites": [ { "page": "678" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0671-01" ] }, { "cite": "318 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "894-95", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520178 ], "year": 1984, "pin_cites": [ { "page": "48", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0040-01" ] }, { "cite": "122 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571494 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0579-01" ] }, { "cite": "173 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561836 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0487-01" ] }, { "cite": "119 S.E.2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "798" } ], "opinion_index": 0 }, { "cite": "254 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627710 ], "year": 1961, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0662-01" ] }, { "cite": "349 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732391 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0457-01" ] }, { "cite": "163 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "769", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "274 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560515 ], "year": 1968, "pin_cites": [ { "page": "434", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0431-01" ] }, { "cite": "367 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "674", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "322 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516596 ], "year": 1988, "pin_cites": [ { "page": "312", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0309-01" ] }, { "cite": "374 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "addition of victim's last name to one of four indictments not amendment as defendant was not misled or surprised as to the nature of the charges against him" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527052 ], "year": 1988, "pin_cites": [ { "parenthetical": "addition of victim's last name to one of four indictments not amendment as defendant was not misled or surprised as to the nature of the charges against him" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0398-01" ] }, { "cite": "380 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "conspiracy charges not substantially altered by changing dates in indictments" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526987 ], "year": 1989, "pin_cites": [ { "parenthetical": "conspiracy charges not substantially altered by changing dates in indictments" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0250-01" ] }, { "cite": "389 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "trial court properly allowed State's motion to correct three indictments where indictments referred to victim as Pettress Cebron, but victim's name actually was Cebron Pettress" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521736 ], "year": 1990, "pin_cites": [ { "parenthetical": "trial court properly allowed State's motion to correct three indictments where indictments referred to victim as Pettress Cebron, but victim's name actually was Cebron Pettress" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0472-01" ] }, { "cite": "313 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "change of date of offense was not an amendment as the change related to time, not an essential element of the murder charge" } ], "opinion_index": 0 }, { "cite": "310 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396898 ], "year": 1984, "pin_cites": [ { "parenthetical": "change of date of offense was not an amendment as the change related to time, not an essential element of the murder charge" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0596-01" ] }, { "cite": "244 S.E.2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574594, 8574566, 8574510, 8574546, 8574524 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0737-05", "/nc/294/0737-04", "/nc/294/0737-01", "/nc/294/0737-03", "/nc/294/0737-02" ] }, { "cite": "240 S.E.2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "478" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547131 ], "year": 1978, "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0053-01" ] }, { "cite": "316 N.C. 24", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695666 ], "pin_cites": [ { "page": "32", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0024-01" ] } ], "analysis": { "cardinality": 816, "char_count": 19609, "ocr_confidence": 0.774, "pagerank": { "raw": 8.655621770156384e-08, "percentile": 0.4915773081751098 }, "sha256": "bd42357728b3a2830ff424ed0f5863dbb46fe4a2b84b81ca5420e2d7f968e198", "simhash": "1:ca776666346f10e0", "word_count": 3289 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Hedrick and Judge Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. FRANKLIN RAY HYDER" ], "opinions": [ { "text": "GREENE, Judge.\nThe defendant appeals from a judgment entered 3 October 1989, which judgment was based upon a jury verdict convicting defendant of two violations of N.C.G.S. \u00a7 90-95(a)(l) (1985), delivery of a controlled substance (file number 88CRS827) and delivery of a controlled substance to a person under 16 years of age while defendant was over 18 years of age (file number 88CRS826).\nOn 11 July 1988, a Mitchell County grand jury indicted the defendant for two violations of N.C.G.S. \u00a7 90-95(a)(l). The first indictment, 88CRS826, accused the defendant of delivery of a controlled substance to a person under 16 years of age by a person over 18 years of age. In the top left corner of the indictment, \u201cWatauga,\u201d not \u201cMitchell,\u201d was placed as the county from which the indictment was issued. On 14 September 1989, the defendant moved to dismiss the indictment because of this error. At trial, the State moved \u201cto strike the word Watauga County and insert in lieu thereof Mitchell County.\u201d The trial court denied the defendant\u2019s motion and granted the State\u2019s motion on the grounds that \u201cthe designation of the county as \u2018Watauga\u2019 in the indictment issued by the grand jury in Mitchell County was a typographical error and has no way mislead [sic] the Defendant of the nature of the charges against him.\u201d\nThe State\u2019s evidence at trial tended to show that in August 1987 the defendant delivered a brown paper bag containing fifteen to twenty plastic bags full of marijuana to his two sons, Tim and Dale Hyder. When the defendant\u2019s sons received the marijuana, they took it behind their house and concealed it. At that time, Tim was 17 years old, and Dale was 15 years old. The boys lived with their mother in Mitchell County, and the defendant lived in Tennessee.\nIn August and September of 1987, Michael Nash (Nash), a deputy sheriff in Mitchell County, worked as an undercover officer. On three separate days in early September, Nash purchased a total of approximately 112 grams of marijuana from the defendant\u2019s sons. After the boys were arrested for charges relating to the sale of the marijuana, they each gave statements to two other Mitchell County sheriffs concerning various items, including the fact that the defendant had delivered the marijuana to them in August 1987. At his arraignment, the defendant entered a plea of not guilty on both charges. The defendant presented no evidence at trial.\nAs punishment for 88CRS826, the trial judge sentenced the defendant to the maximum term of imprisonment, thirty years. As punishment for 88CRS827, the trial judge sentenced the defendant to the maximum term of imprisonment, five years. On appeal, the defendant seeks either a new trial or a new sentencing hearing.\nThe issues are: (I) whether the trial court erred in denying defendant\u2019s motion to dismiss the indictment in 88CRS826; (II) whether the trial court erred in allowing two separate portions of an out-of-court statement to be read into evidence, (A) the first portion concerning a statement made by the defendant to Dale Hyder and (B) the second portion concerning a matter within Dale\u2019s personal knowledge; (III) whether the trial court erred in refusing to consider the defendant\u2019s physical condition as a mitigating factor; and (IV) whether the trial court considered improper nonstatutory aggravating factors in reaching its conclusion to impose the maximum sentences upon the defendant.\nI\nDefendant argues that the trial court violated N.C.G.S. \u00a7 15A-923(e) (1988) by improperly amending the indictment in 88CRS826 when the trial court granted the State\u2019s motion \u201cto strike the word Watauga County and insert in lieu thereof Mitchell County.\u201d We disagree.\nN.C.G.S. \u00a7 15A-923(e) instructs that \u201c[a] bill of indictment may not be amended.\u201d The statute does not define the term \u201camendment.\u201d Our courts, however, have defined the term to mean \u201cany change in the indictment which would substantially alter the charge set forth in the indictment.\u201d State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, disc. rev. denied, 294 N.C. 737, 244 S.E.2d 155 (1978). The trial court concluded that the error in the first indictment was a mere typographical error that in no way misled the defendant as to the nature of the charges against him. We agree. The defendant could not have been misled or surprised as to the nature of the charges against him, and the substitution of Mitchell County for Watauga County did not amount to an impermissible amendment of the indictment under N.C.G.S. \u00a7 15A-923(e) as it did not alter the charge in the indictment. See also State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984) (change of date of offense was not an amendment as the change related to time, not an essential element of the murder charge); State v. Bailey, 97 N.C. App. 472, 389 S.E.2d 131 (1990) (trial court properly allowed State\u2019s motion to correct three indictments where indictments referred to victim as Pettress Cebron, but victim\u2019s name actually was Cebron Pettress); State v. Kamtsiklis, 94 N.C. App. 250, 380 S.E.2d 400 (1989) (conspiracy charges not substantially altered by changing dates in indictments); State v. Marshall, 92 N.C. App. 398, 374 S.E.2d 874 (1988) (addition of victim\u2019s last name to one of four indictments not amendment as defendant was not misled or surprised as to the nature of the charges against him).\nII\nAt trial, the State called as a witness Coy Hollifield (Hollifield), the sheriff in Mitchell County. Without objection, Hollifield began reading into evidence the statement given by Dale Hyder when he was arrested. After Hollifield had read nearly two pages of the statement, the defendant began generally objecting to various portions of the statement. The first portion concerned a statement made by the defendant to Dale Hyder. The second portion apparently concerned facts about which Dale had firsthand knowledge.\nA\nThe first portion of the statement appears in the transcript as follows:\nQ. All right. What, if anything, did he [Dale] at that time tell you Sheriff Hollifield?\nA. Vernon Bishop was the man that actually did the interview, of course, I asked questions as we went down, and I\u2019ll just read the interview, if that\u2019s okay with you. Vernon asked the question, do you ahh go by Franklin or by Dale, and he stated Dale. Vernon asked, stated said I\u2019m Vernon Bishop and this is Danny Braswell and this is Sheriff Hollifield I guess your attorney has already told you what is going on, Dale stated yeah. Vernon, what basically what I need to know is where you got the marijuana that you sold to the undercover agent during the undercover campaign. Dale, I got it from my dad. And then I asked him a question, are you taping this now, and we were taping the conversation between us, and Vernon said yes, and he asked your dad\u2019s full name, and Frank \u2014 or Dale answered Franklin Ray Hyder. I asked a question, ahh I said, Dale is it and he said yes. And then I asked a question, what other name does your father go by, and he stated that he didn\u2019t go by any other name that he knew of. Vernon asked the question, ahh the first transaction was around the first of September, when did you bring the marijuana \u2014 when did he bring the marijuana to you, Dale stated about the last of August, middle or last of August. Vernon, okay, what time of the day or night was it, do you remember? Dale, it was the night. Vernon, now was it \u2014 how was it packaged, we want to get specific here, and I asked the question, ahh I was just, and then I said I was writing my questions down to ask when you got through, and that was my first question, Dale stated, it was in a brown grocery bag and it was in, the marijuana was in freezer bags. Vernon asked the question, plastic, Dale answered yes. Vernon, okay, he had this, he had individually packaged in freezer bags in a big paper sack. Dale answered yes. Vernon, how many small packages were there? Dale, I guess twenty. Vernon, about how many marijuana \u2014 how much marijuana was in the individual bags? Dale stated about an ounce. Vernon, about an ounce in each bag? Dale stated yes. Vernon, what was the conversation that took place when he went \u2014 when he came up, came over the mountain with the marijuana? What went on? Dale, he just said keep this for me, and try to sell it\u2014\nMr. Austin: Objection and Move to Strike.\nThe Court: Overruled.\nThe defendant argues that the entire statement was hearsay and that the only purpose for which the statement could have been properly admitted would have been to corroborate Dale\u2019s earlier testimony. However, since the statement did not corroborate Dale\u2019s testimony at trial, the defendant argues that such a purpose was not served. Therefore, the statement should not have been allowed into evidence. We do not address the merits of the defendant\u2019s argument because the defendant failed to object to the statement in a timely manner.\n\u201c[U]nder Rule 103 of the North Carolina Rules of Evidence, error may not be predicated on a ruling admitting evidence unless a timely objection or motion to strike appears in the record.\u201d State v. Reid, 322 N.C. 309, 312, 367 S.E.2d 672, 674 (1988) (emphasis added); see also N.C.G.S. \u00a7 15A-1446(a) (1988) and N.C.R. App. P. 10(b)(1). A timely objection is one \u201c \u2018made in apt time, that is, as soon as the opponent has the opportunity to learn that the evidence is objectionable.\u2019 \u201d State v. Edwards, 274 N.C. 431, 434, 163 S.E.2d 767, 769 (1968) (citation omitted). \u201cFailure to make an appropriate and timely motion or objection constitutes a waiver of the right to assert the alleged error upon appeal.\u201d N.C.G.S. \u00a7 15A-1446(b) (1988); see also Reid-, 1 Brandis, Brandis on North Carolina Evidence \u00a7 27 (3d ed. 1988). Applying these rules to the trial court\u2019s alleged error, the defendant did not object in apt time and thereby has waived the right to argue the alleged error in this appeal. As to the alleged error regarding this statement, the defendant\u2019s objection was made after Hollifield had read into evidence Dale Hyder\u2019s answer to the officer\u2019s questions. The objection was simply too late as the defendant was fully aware throughout the reading of the statement that it was an out-of-court statement offered for the truth of the matters contained within it.\nB\nThe second portion of Dale Hyder\u2019s statement to which the defendant assigns error concerns a matter apparently within Dale\u2019s personal knowledge. The defendant generally objected to portions of Dale\u2019s statement which show that Dale knew that the defendant grew marijuana in Tennessee. The relevant portions of Dale\u2019s statement appear in the transcript as follows:\nA. Dale, yes. Vernon, did he ever tell you where he got the marijuana? Dale, he grew it\u2014\nMr. Austin: Objection.\nThe Court: Overruled.\nQ. Vernon, he told you he grew it? Dale, I know he did. Vernon, but did you ever \u2014 but did he ever tell you that? And then I asked the question, did you see where he grew it at, is that what you are telling us?\nMr. Austin: Objection.\nThe Court: Overruled.\nA. Dale, yes. And I made the statement okay. Dale, I know for a fact he grew it. I asked the question, go ahead and talk to him then. Vernon, you saw it growing? Dale stated yes. I asked the question where at? Dale stated in his garden behind his house. I asked the question in Tennessee? Dale stated yes;\nThe defendant argues that the trial court erred in admitting this portion of the statement because Dale had not previously testified as to this matter and that therefore the statement did not add weight to his earlier testimony. The defendant therefore argues that admission of this portion of the statement violates a recent Supreme Court case, State v. Ramey, 318 N.C. 457, 349 S.E.2d 566 (1986). Assuming arguendo that the evidence was improperly admitted, the defendant was not prejudiced by its admission. Earlier testimony by the defendant\u2019s other son, Tim, revealed the fact that Tim knew that his father grew marijuana in Tennessee. This testimony was admitted without objection. Therefore, the fact that the defendant grew marijuana in Tennessee had already been established without objection. Our Supreme Court has stated on various occasions that prejudicial error cannot be shown when \u201cpreceding testimony given without objection is substantially the same as the testimony challenged.\u201d Stockwell v. Brown, 254 N.C. 662, 667, 119 S.E.2d 795, 798 (1961). See also Wilson County Board of Ed. v. Lamm, 276 N.C. 487, 173 S.E.2d 281 (1970); Hall v. Atkinson, 255 N.C. 579, 122 S.E.2d 200 (1961). Based upon the settled law, the defendant was not prejudiced by admission of Dale\u2019s statement.\nIll\nThe defendant assigns error to the trial court\u2019s refusal to consider the defendant\u2019s physical condition as a mitigating factor to the crimes. The defendant argues that the uncontested evidence proves that he suffered from serious medical problems which constitute a mitigating factor. We disagree.\n\u201cWhere evidence in support of a mitigating factor is uncon-tradicted, substantial and inherently credible, it is error for the trial court to fail to find that mitigating factor. . . . The defendant has the burden of establishing mitigating factors by a preponderance of the evidence.\u201d State v. Grier, 70 N.C. App. 40, 48, 318 S.E.2d 889, 894-95 (1984) (citations omitted). \u201cFinding that a mitigating factor exists is within the trial judge\u2019s discretion and will not be disturbed on appeal absent a showing that the court\u2019s ruling was so arbitrary that it could not be the result of. a reasoned decision.\u201d State v. Kinney, 92 N.C. App. 671, 678, 375 S.E.2d 692, 696 (1989). Here, because the defendant did not meet his burden of establishing the existence of a mitigating factor, the trial court did not abuse its discretion in refusing to find that the defendant suffered from serious medical problems.\nOur Supreme Court has ruled that \u201cstatements made by defense counsel during argument at the sentencing hearing do not constitute evidence in support of statutory mitigating factors. . . . Such statements may, of course, constitute adequate evidence of the existence of aggravating or mitigating factors if the opposing party so stipulates.\u201d State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 71 (1986) (citation omitted). In this case, the only mention of the defendant\u2019s physical condition was in defense counsel\u2019s argument at the sentencing hearing. No other testimony appears in the record which would support the assertion that the defendant suffered from serious medical problems. Likewise, the State did not stipulate to the existence of such a mitigating factor. Therefore, under Swimm, there was no evidence of the defendant\u2019s physical condition before the trial court for it to consider.\nIV\nAt the end of the sentencing hearing, and after the trial judge had informed the parties as to which aggravating and mitigating factors he had found, the judge sentenced the defendant on both convictions. After sentencing was complete, the trial judge lectured the defendant as follows:\nMr. Hyder, I want to say to you I find this crime particularly despicable, not only did you involve someone under sixteen, but it was your own son, and you have prior to this the evidence is that you, they had not been involved with drugs following your delivery of this substance to them they began using, moreover they sold it in this community, and but for your criminal action that would not have occurred, and I am therefore imposing the severest penalty I can. The Defendant is in your custody.\nBased on the above-quoted passage, the defendant argues that the trial court clearly believed that both of the defendant\u2019s sons began using marijuana after the defendant delivered it to them. The defendant argues that because there is no evidence in the record to support any finding that Tim Hyder ever used marijuana, the trial court erred in considering Tim\u2019s drug use as an aggravating factor. We find this immaterial as the record is clear that the defendant was sentenced prior to any comment made to the defendant about his son\u2019s use of drugs. Since the record contains statutory aggravating factors to which the defendant does not complain, and since these factors support the sentence rendered by the trial court, we find no error. State v. Flowers, 100 N.C. App. 58, 394 S.E.2d 296 (1990).\nNo error.\nChief Judge Hedrick and Judge Arnold concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by J. Charles Waldrup, Assistant Attorney General, for the State.", "Kyle D. Austin for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRANKLIN RAY HYDER\nNo. 8924SC1340\n(Filed 18 September 1990)\n1. Indictment and Warrant \u00a7 12.2 (NCI3d)\u2014 indictment \u2014 name of county changed \u2014no error\nThe trial court did not err in a prosecution for delivering a controlled substance by granting the State\u2019s motion to strike \u201cWatauga County\u201d and insert \u201cMitchell County.\u201d Although N.C.G.S. \u00a7 15A-923(e) provides that a bill of indictment may not be amended, the defendant could not have been misled or surprised as to the nature of the charges against him and the substitution of Mitchell County for Watauga County did not amount to an impermissible amendment of the indictment as it did not alter the charge.\nAm Jur 2d, Indictments and Informations \u00a7\u00a7 174, 180, 188, 192.\n2. Criminal Law \u00a7 162.2 (NCI3d)\u2014 hearsay \u2014 objection not timeiy \u2014right to argue on appeal waived\nDefendant in a prosecution for delivering a controlled substance did not object in apt time and thereby waived his right to argue on appeal that an out-of-court statement was hearsay.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 562, 603; Evidence \u00a7 494.\n3. Criminal Law \u00a7 169.3 (NCI3d)\u2014 out-of-court statement \u2014fact established by other evidence \u2014 no prejudice\nThere was no prejudice in a prosecution for delivering a controlled substance from the admission of an out-of-court statement that defendant was growing marijuana in Tennessee where that fact had already been established without objection.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 562, 603; Evidence \u00a7 494.\n4. Criminal Law \u00a7 1196 (NCI4th>\u2014 sentencing \u2014mitigating factor \u2014 no evidence\nThe trial court did not abuse its discretion in a prosecution for delivering a controlled substance by not considering defendant\u2019s physical condition as a mitigating factor. The only mention of defendant\u2019s physical condition was in defense counsel\u2019s argument, the State did not stipulate to the existence of this mitigating factor, and, under State v. Swimm, 316 N.C. 24, there was no evidence that defendant\u2019s physical condition was before the court.\nAm Jur 2d, Criminal Law \u00a7\u00a7 527, 598, 599; Drugs, Narcotics, and Poisons \u00a7 48.\n5. Criminal Law \u00a7 1117 (NCI4th)\u2014 sentencing \u2014 involvement of children in drugs \u2014not improperly considered\nThere was no error in sentencing defendant to maximum terms for delivery of a controlled substance and delivery of a controlled substance to a person under sixteen years of age while defendant was over eighteen years of age. Although defendant contends that the judge\u2019s statements clearly indicate that he believed that both of defendant\u2019s sons began using marijuana after defendant delivered it to them and that there is no evidence that one of the sons ever used marijuana, it is clear that defendant was sentenced prior to any comment made about defendant\u2019s son\u2019s use of drugs and the record contains statutory aggravating factors supporting the sentence.\nAm Jur 2d, Criminal Law \u00a7\u00a7 527, 598, 599; Drugs, Narcotics, and Poisons \u00a7 48.\nAPPEAL by defendant from judgment entered 3 October 1989 by Judge Samuel A. Wilson III in MITCHELL County Superior Court. Heard in the Court of Appeals 20 August 1990.\nLacy H. Thornburg, Attorney General, by J. Charles Waldrup, Assistant Attorney General, for the State.\nKyle D. Austin for defendant-appellant." }, "file_name": "0270-01", "first_page_order": 302, "last_page_order": 310 }