{ "id": 8955187, "name": "STATE OF NORTH CAROLINA v. JAY EFRAM INGRAM, Defendant", "name_abbreviation": "State v. Ingram", "decision_date": "2003-09-02", "docket_number": "No. COA02-826", "first_page": "224", "last_page": "230", "citations": [ { "type": "official", "cite": "160 N.C. App. 224" } ], "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": "417 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "747", "parenthetical": "stating \"the use of a conjunctive in [a robbery with a dangerous weapon] indictment does not require the State to prove various alternative matters alleged\"" } ], "opinion_index": 0 }, { "cite": "331 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501748 ], "year": 1992, "pin_cites": [ { "page": "569", "parenthetical": "stating \"the use of a conjunctive in [a robbery with a dangerous weapon] indictment does not require the State to prove various alternative matters alleged\"" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0559-01" ] }, { "cite": "369 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "322 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517600 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/322/0506-01" ] }, { "cite": "293 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "760" }, { "page": "766" } ], "opinion_index": 0 }, { "cite": "306 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571311 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0491-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "380 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "402" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526987 ], "year": 1989, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0250-01" ] }, { "cite": "286 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527539 ], "year": 1982, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc-app/55/0478-01" ] }, { "cite": "412 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "330 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508946 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/330/0298-01" ] }, { "cite": "389 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "change in indictment which stated victim's name as Pettress Cebron to correctly reflect the victim's name as Cebron Pettress was not a prohibited amendment" } ], "opinion_index": 1 }, { "cite": "97 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521736 ], "year": 1990, "pin_cites": [ { "parenthetical": "change in indictment which stated victim's name as Pettress Cebron to correctly reflect the victim's name as Cebron Pettress was not a prohibited amendment" } ], "opinion_index": 1, "case_paths": [ "/nc-app/97/0472-01" ] }, { "cite": "64 N.C. 100", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8681498 ], "year": 1870, "pin_cites": [ { "page": "102", "parenthetical": "\"A variance or omission in the name of the person injured is more serious than a variance in the name of the defendant. . . .\"" } ], "opinion_index": 1, "case_paths": [ "/nc/64/0100-01" ] }, { "cite": "125 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "924" } ], "opinion_index": 1 }, { "cite": "257 N.C. 464", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568554 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/nc/257/0464-01" ] }, { "cite": "153 S.E.2d 741", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "745" } ], "opinion_index": 1 }, { "cite": "270 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565060 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "29" } ], "opinion_index": 1, "case_paths": [ "/nc/270/0025-01" ] }, { "cite": "448 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "824", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "337 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552042 ], "year": 1994, "pin_cites": [ { "page": "767", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/337/0764-01" ] }, { "cite": "283 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "729" } ], "opinion_index": 1 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "year": 1981, "pin_cites": [ { "page": "308" } ], "opinion_index": 1, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "417 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 1 }, { "cite": "331 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501748 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/nc/331/0559-01" ] } ], "analysis": { "cardinality": 702, "char_count": 14304, "ocr_confidence": 0.758, "pagerank": { "raw": 8.632774428441785e-08, "percentile": 0.490914142098632 }, "sha256": "8504683a558521330fbedeeca00b8f2285e2ce1e54fe5aa1c02661bec584e1e1", "simhash": "1:ad63f47df73a1f5c", "word_count": 2374 }, "last_updated": "2023-07-14T16:12:23.823025+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge ELMORE concurs in part and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. JAY EFRAM INGRAM, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nFrom his conviction on the charge of armed robbery, defendant Jay Efram Ingram contends on appeal that the trial court erroneously (I) allowed the state\u2019s motion to alter the indictment; (II) overruled his objection to a series of questions regarding prior statements and behavior; and (III) found as an aggravating sentencing factor that he took advantage of a position of trust or confidence. After review, we find no error.\nAt about 11:00 p.m. on 23 May 2001, two men stole the day\u2019s receipts from a fast-food restaurant in Burlington. The incident occurred after two employees, Sandra Goodman and Stephonia Berger, closed the store. The record shows that one of the robbers (later identified as defendant) approached Ms. Goodman in her car, placed a gun to her head and took two deposit bags containing the day\u2019s receipts. The other robber, however, approached Berger in a different car and took a plastic bag containing clothes. Both women identified defendant as a former employee of the restaurant and one of the robbers.\nThe grand jury returned a true bill of indictment which stated inter alia,\nthe Defendant named above unlawfully, willfully and feloniously did steal, take and carry away and attempt to steal, take and carry away another\u2019s personal property, U.S. CURRENCY of the value of OVER $1,000, from the presence, person, place of business and residence of SANDRA GOODMAN AND STEPHONIA BERGER.\nAt the close of its trial evidence, the State moved to delete Stephonia Berger\u2019s name from the indictment. The trial court granted the motion, and the jury returned a verdict finding sheet finding \u201cTHE DEFENDANT JAY EFRAM INGRAM TO BE . . . GUILTY OF ARMED ROBBERY (SANDRA GOODMAN).\u201d\nThereafter, the trial court found aggravating and mitigating factors, determined the aggravating factors outweighed the mitigating factors, and sentenced defendant to a term of 80 months to 105 months imprisonment. Defendant appeals.\nDefendant first contends the indictment\u2019s alteration, striking the second victim\u2019s name, substantially altered the charge set forth in the indictment in violation of N.C. Gen. Stat. \u00a7 15A-923(e) (2001). We disagree.\nA bill of indictment is legally sufficient if it charges the substance of the offense and puts the defendant on notice that he will be called upon to defend against proof of the manner and means by which the crime was perpetrated. State v. Rankin, 55 N.C. App. 478, 480, 286 S.E.2d 119, 120 (1982). N.C. Gen. Stat. \u00a7 15A-923(e) states a bill of indictment may not be amended. However, our Supreme Court has interpreted this provision as prohibiting indictment amendments which substantially alter the charge set forth in the indictment. See State v. Kamtsiklis, 94 N.C. App. 250, 255, 380 S.E.2d 400, 402 (1989).\nIn this case, defendant was indicted for robbery with a dangerous weapon, in violation of N.C. Gen. Stat. \u00a7 14-87 (2001) which requires proof of the following elements: (1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened. State v. Beaty, 306 N.C. 491, 293 S.E.2d 760, 760, overruled on other grounds by State v. White, 322 N.C. 506, 369 S.E.2d 813 (1982). \u201cIn respect of armed robbery as defined in G.S. 14-87, force or intimidation occasioned by the use or threatened use of firearms, is the main element of the offense. Variance between the allegations of the indictment and the proof in respect of the ownership of the property taken is not material. In an indictment for robbery, the allegations of ownership of the property taken is sufficient when it negatives the idea that the accused was taking his own property. The gravamen of the offense is the endangering or threatening of human life by the use or threatened use of firearms or other dangerous weapons in the perpetration of or even in the attempt to perpetrate the crime of robbery.\u201d Id. at 499, 293 S.E.2d at 766.\nIn this case, the trial court allowed the indictment to be altered by deleting Ms. Berger\u2019s name as a victim, leaving Ms. Goodman\u2019s name as the sole alleged victim. This deletion did not change the degree or nature of the offense charged. Indeed, before and after the amendment, the defendant was on notice that he had to defend against a charge of robbery with a dangerous weapon. Moreover, it did not prejudice the defendant\u2019s theory of defense. He contended he had an alibi for the time at which the robbery occurred and therefore he could not have been one of the perpetrators. Finally, the deletion did not change the State\u2019s burden of proof. Indeed, defendant\u2019s guilt of robbery of a dangerous weapon would have been established with proof beyond a reasonable doubt that he robbed either Ms. Goodman or Ms. Berger \u2014 the State was not required to prove both individuals had been robbed by defendant. See State v. Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992) (stating \u201cthe use of a conjunctive in [a robbery with a dangerous weapon] indictment does not require the State to prove various alternative matters alleged\u201d).\nDefendant next contends the trial court erroneously allowed testimony regarding whether defendant ever jokingly scared other employees, his former coworkers, by pretending to rob them in a manner similar to that used by the robber on the night of the robbery because such testimony was irrelevant and prejudicial. We disagree.\nDuring direct examination of State\u2019s witness Stephonia Berger, the following testimony was admitted after defendant\u2019s objection:\nQ: How would the defendant, I\u2019m sorry, how would Mr. Ingram joke around after work some nights?\nA: Well, some nights when we would come out, he would run from behind the building and jump out and holler, \u201cAiee,\u201d you know, trying to scare us.\nQ: Compare that, the location where he would run out from when he was joking around, the location where these two gentleman came out and robbed you guys that night. Was it the same location?\nA: It was the same location.\n[t.p.58]\nUnder North Carolina Rule of Evidence 404(b), testimony tending to show proof of motive, opportunity, intent, preparation, plan, or knowledge is admissible. N.C. Gen. Stat. \u00a7 8C-1, Rule 404 (2001). The line of questioning at issue tended to make such a showing, and was more relevant and probative than unduly prejudicial.\nIn his final argument, defendant contends the trial court erred in finding the aggravating factor that \u201cdefendant took advantage of a position of trust or confidence to commit the offense\u201d, determining the aggravating factors outweighed any mitigating factors, and sentencing defendant in the aggravated range. We agree.\nInitially, we note that there is no case law which supports the contention that there is an abuse of a position of trust by a former employee who had not worked for the victim company for six months. Defendant had worked at the restaurant\u2019s location for approximately a year, and had not worked there for five or six months prior to the robbery. (D.brief p.9) Although he was working at another restaurant\u2019s location, he was no longer in any relationship of trust or confidence with the restaurant that was robbed in the instant case. Under the facts of this case, we hold that the evidence was insufficient to establish as an aggravating factor that a relationship of trust existed between defendant and his former employer. The aggravating factor at issue was inappropriate in this case.\nFor the foregoing reasons, we affirm the judgment below and remand for re-sentencing.\nNo error in part, remanded for resentencing.\nJudge McCULLOUGH concurs.\nJudge ELMORE concurs in part and dissents in part.", "type": "majority", "author": "WYNN, Judge." }, { "text": "ELMORE, Judge,\ndissenting in part, concurring in part.\nThe majority upholds the defendant\u2019s robbery conviction holding that the State could amend the indictment by deleting the name of one of the two named victims. From this conclusion I respectfully dissent.\nIt is well established that \u201ca valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.\u201d State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981). Our General Statutes state that \u201c[a] bill of indictment may not be amended.\u201d N.C. Gen. Stat. \u00a7 15A-923(e) (2001). This has been interpreted by North Carolina case law to mean that \u201can indictment may not be amended in a way which \u2018would substantially alter the charge set forth in the indictment.\u2019 \u201d State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994) (citation omitted).\nThe issue is whether the amendment which omitted one of the two victims named in the conjunctive substantially altered the charge set forth in the indictment. The majority holds that the burden of proof did not change, and that the amendment was appropriate. I respectfully disagree.\nWhere an indictment charges the defendant with a crime against someone other than the actual victim, such a variance is fatal. State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967). In Bell, the indictment charged defendant with the robbery of Jean Rogers, whereas the evidence showed the correct name of the victim was Susan Rogers. The Court held that the defendant\u2019s motion for nonsuit should have been allowed as to the indictment on the ground that the indictment was in variance with the evidence. Bell, 270 N.C. at 29, 153 S.E.2d at 745. In State v. Overman, 257 N.C. 464, 125 S.E.2d 920 (1962), the indictment charged that Frank E. Nutley, rather than Frank E. Hatley, was victim of a hit-and-run accident. Because the indictment required the State to prove injury to someone other than the true victim, the Court held a fatal variance existed. Id. at 468, 125 S.E.2d at 924. See State v. Harper, 64 N.C. 100, 102 (1870) (\u201cA variance or omission in the name of the person injured is more serious than a variance in the name of the defendant. . . .\u201d). But see State v. Bailey, 97 N.C. App. 472, 389 S.E.2d 131 (1990) (change in indictment which stated victim\u2019s name as Pettress Cebron to correctly reflect the victim\u2019s name as Cebron Pettress was not a prohibited amendment).\nI conclude from this line of cases that the identity of the victim is a substantial element of the indictment, and that a change in the victim\u2019s identity is a substantial change, which change is prohibited by section 15A-923(e) of the General Statutes. In the case at bar, the indictment was amended from including two individual victims to including only one. In addition, the amendment was made at the close of the State\u2019s evidence, well into the case and after the jury had been initially read the original indictment by the trial court and listened to the evidence with both victims in mind. This constitutes a substantial change which our law does not permit.\nThe trial transcript indicates that the State and the trial court were trying to bring the indictment into conformity with State v. Lyons, 330 N.C. 298, 412 S.E.2d 308 (1991), which held that disjunctive jury instructions using \u201cand/or\u201d between the victims names were fatally ambiguous and required a new trial when the indictment had used the conjunctive \u201cand\u201d between the names. The Lyons case established the rule that when a disjunctive jury instruction is given, which allows the jury to find a defendant guilty of either of two underlying acts each of which is in itself a separate offense, the instruction is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.\nIn the present case, however, the original indictment named two victims using the conjunctive \u201cand\u201d, not the disjunctive \u201cand/or.\u201d It follows that under the original indictment the State would have to prove that the defendant robbed from both of the named victims, Sandra Goodman and Stephonia Berger. The indictment was not ambiguous. After the amendment, the State\u2019s burden was reduced to proving that the defendant robbed Sandra Goodman only.\nThe majority relies on State v. Montgomery, 331 N.C. 559, 417 S.E.2d 742 (1992), which does say that a conjunctive in the indictment does not require the State to prove both, in that case person and presence of the victim. This case is distinguishable because the conjunctive charges the defendant with a crime against two individuals. While in a well-worded indictment this would usually be two separate charges, when the State decided to charge both in one, I believe they must then carry the burden as to both to satisfy the charge. Lessening the State\u2019s burden from two victims to one is a substantial alteration.\nBecause the amendment was in error and that error necessarily prejudiced the verdict given by the jury, I would vacate the judgment of the trial court. I concur in the other aspects of the majority opinion.", "type": "concurring-in-part-and-dissenting-in-part", "author": "ELMORE, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General W. Wallace Finlator, Jr., for the State.", "Duncan B. McCormick for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAY EFRAM INGRAM, Defendant\nNo. COA02-826\n(Filed 2 September 2003)\n1. Indictment and Information\u2014 name of one victim deleted \u2014 no error\nThe trial court did not err by allowing the State to delete the name of one of the victims in an armed robbery indictment. The alteration did not change the nature of the offense, prejudice defendant\u2019s theory of defense, or change the State\u2019s burden of proof.\n2. Evidence\u2014 prior conduct \u2014 pretending to rob\nThe admission of testimony that an armed robbery defendant had pretended to rob his coworkers in the past, in a manner similar to the robbery for which he was charged, was admissible to show motive, opportunity, intent, preparation, plan or knowledge. It was more probative than prejudicial.\n3. Sentencing\u2014 aggravating circumstances \u2014 position of trust or confidence \u2014 former employee\nThere was insufficient evidence to find the aggravating circumstance that a robbery defendant abused a position of trust or confidence where the defendant was a former employee who had not worked for the victim for six months.\nJudge ELMORE dissenting in part and concurring in part.\nAppeal by defendant from judgment entered 28 March 2002 by Judge Orlando F. Hudson in Superior Court, Alamance County. Heard in the Court of Appeals 20 May 2003.\nAttorney General Roy Cooper, by Assistant Attorney General W. Wallace Finlator, Jr., for the State.\nDuncan B. McCormick for the defendant-appellant." }, "file_name": "0224-01", "first_page_order": 254, "last_page_order": 260 }