{
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  "name": "STATE OF NORTH CAROLINA v. ROBERT GREGORY WINSLOW",
  "name_abbreviation": "State v. Winslow",
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    "judges": [
      "Judge JACKSON concurs.",
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      "STATE OF NORTH CAROLINA v. ROBERT GREGORY WINSLOW"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nRobert Gregory Winslow (defendant) appeals from a jury verdict entered 6 November 2001 finding him guilty of driving while impaired (DWI). Defendant was sentenced as a Prior Record Level IV to a minimum of 25 months and a maximum of 30 months for habitual driving while impaired (habitual DWI). Defendant failed to give timely notice of appeal. On 27 October 2003, defendant\u2019s Petition for Writ of Certiorari was granted pursuant to N.C. R. App. P. 21.\nOn 9 April 2000 defendant was arrested and charged with DWI. Defendant was also charged with habitual DWI in violation of N.C. Gen. Stat. \u00a7 20-138.5 based on prior DWI convictions dated as follows: 1 April 1993 in Perquimans County; 22 November 1998 in Gates County; and 2 October 1999 in Suffolk County, Virginia. Defendant pled not guilty and a jury trial followed on 5 November 2001. After the State had rested its case, counsel for defendant moved to dismiss the indictment. The trial court allowed the State to amend the indictment as to defendant\u2019s 1993 DWI to allege the conviction date of 11 August 1993 versus the occurrence date of 1 April 1993, over defendant\u2019s objection. The jury returned a guilty verdict of DWI. Defendant admitted his status of habitual DWI and the trial court entered judgment, sentencing him to 25 to 30 months imprisonment. Defendant appeals.\nOn appeal, defendant raises two issues: (I) whether the indictment is fatally defective, and (II) whether the trial court erred in allowing the State to amend the indictment after the State rested.\n(I)\nDefendant argues his felony conviction for habitual DWI should be vacated on the ground that the indictment charging him with habitual DWI was fatally defective. Specifically, defendant contends one of the three offenses enumerated in the indictment was outside the seven-year period, as provided in N.C. Gen. Stat. \u00a7 20-138.5(a) (2003):\nA person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01 (24a) within seven years of the date of this offense.\nJurisdiction to try an accused for a felony depends upon a valid bill of indictment. State v. McBane, 276 N.C. 60, 65, 170 S.E.2d 913, 916 (1969). A valid bill of indictment must allege all essential elements of a statutory offense. State v. Crabtree, 286 N.C. 541, 544, 212 S.E.2d 103, 105 (1975). Pursuant to N.C. Gen. Stat. \u00a7 15A-928(c) (2003), a defendant may admit a previous conviction and thereby establish an element of an offense. State v. Smith, 291 N.C. 438, 441-42, 230 S.E.2d 644, 646 (1976). An indictment is fatally defective if it \u201cwholly fails to charge some offense ... or fails to state some essential and necessary element of the offense of which the defendant is found guilty.\u201d State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998); State v. Crawford, 167 N.C. App. 777, 779, 606 S.E.2d 375, 377 (2005) (citations omitted).\nIn this case, the indictment for habitual DWI alleged that defendant was convicted of DWI on 1 April 1993. Defendant was charged with the current DWI offense on 9 April 2000. Defendant argues the 1 April 1993 offense was eight days outside of the seven year limitation. When defendant brought his motion to dismiss based on a defective indictment, the prosecutor explained to the trial court a typographical error existed, since the certified copy of the court records and the Department of Motor Vehicles report indicated defendant was actually convicted of the DWI offense on 11 August 1993, within the seven-year period required by statute. The prosecutor moved to amend the indictment to reflect the date of conviction rather than the date of the offense, which motion the trial court granted. The trial court denied defendant\u2019s motion to dismiss based on the indictment and based on insufficient evidence. Defendant thereafter admitted to the prior convictions as alleged in the amended indictment.\nDefendant argues the Rule of Lenity should be applied to require that this Court use the date of the offense, rather than the date of conviction in interpreting N.C.G.S. \u00a7 20-138.5, and therefore omit the 1993 DWI from the indictment; however, N.C.G.S. \u00a7 20-138.5 clearly refers to prior convictions. Therefore, because there is no ambiguity in the statute, we decline to apply the Rule of Lenity.\nIn this case, the indictment alleged the essential elements of the offense of habitual driving while impaired, since it alleged defendant had been previously convicted of three DWI offenses. Further, no fatal variance is shown between the indictment and proof at trial since defendant admitted the prior convictions, based on the amended indictment. State v. Baldwin, 117 N.C. App. 713, 716, 453 S.E.2d 193, 194 (1995) (holding defendant stipulated to convictions alleged in indictment; indictment was sufficient to support charge of violating N.C. Gen. Stat. \u00a7 20-138.5(a); and indictment served as proper notice to defendant). Defendant has failed to show that he is entitled to the relief sought. This assignment of error is overruled.\n(II)\nDefendant next argues the trial court erred in allowing the State to amend the indictment after the close of the State\u2019s evidence.\nAs previously noted, N.C. Gen. Stat. \u00a7 15A-923 (e) provides that a bill of indictment may not be amended. N.C. Gen. Stat. \u00a7 15A-923 (e) (2003). \u201cAn \u2018amendment\u2019 is \u2018any change in the indictment which would substantially alter the charge set forth in the indictment.\u2019 \u201d State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984); State v. Lewis, 162 N.C. App. 277, 285, 590 S.E.2d 318, 324 (2004). In addition, this Court has held, \u201c[a] 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.\u201d State v. Rankin, 55 N.C. App. 478, 480, 286 S.E.2d 119, 120 (1982); State v. Ingram, 160 N.C. App. 224, 225, 585 S.E.2d 253, 255 (2003). \u201cThe elements need only be alleged to the extent that the indictment (1) identifies the offense; (2) protects against double jeopardy; (3) enables the defendant to prepare for trial; and (4) supports a judgment on conviction.\u201d State v. Holliman, 155 N.C. App. 120, 126, 573 S.E.2d 682, 687 (2002) (quotations omitted).\nOur Supreme Court has recognized a judgment should not be reversed when the indictment lists an incorrect date or time \u201c \u2018if time was not of the essence\u2019 \u201d of the offense, and \u201c \u2018the error or omission did not mislead the defendant to his prejudice.\u2019 \u201d State v. Everett, 328 N.C. 72, 75, 399 S.E.2d 305, 306 (1991) (quoting N.C.G.S. \u00a7 15A-924(a)(4)). Also, N.C. Gen. Stat. \u00a7 15-155 indicates judgment will not be reversed where time is not of the essence:\nNo judgment upon any indictment for felony or misdemeanor, whether after verdict, or by confession, or otherwise, shall be stayed or reversed for the want of the averment of any matter unnecessary to be proved,... nor for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened . . . when the court shall appear by the indictment to have had jurisdiction of the offense.\nN.C. Gen. Stat. \u00a7 15-155 (2003). \u201cA variance as to time . . . becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense.\u201d State v. Price, 310 N.C. 596, 599, 313 S.E.2d 556, 559 (1984).\nPermitting the State to amend the indictment in the instant case to reflect the date of conviction rather than the date of the offense did not impair defendant\u2019s ability to defend the charge of habitual DWI. Here, time was not of the essence as the indictment clearly specified defendant was being charged with habitual DWI. Defendant never denied having been convicted of the 1993 DWI. He had notice of the 1993 DWI and had ample time to prepare for trial. In fact, in response to whether defendant would admit to his prior convictions, defense counsel stated to the trial court, \u201cthe defendant after thoughtful inquiry and thoughtful consideration . . . admit[s] the prior convictions.\u201d The amendment to the indictment did not substantially alter the charge set forth in the indictment. See Lewis, 162 N.C. App. at 285, 590 S.E.2d at 324 (although habitual felon indictment incorrectly stated the date and county of defendant\u2019s conviction, it sufficiently notified defendant of the particular conviction that was being used to support his status as habitual felon and defendant did not argue he lacked notice at trial). This assignment of error is overruled.\nNo error.\nJudge JACKSON concurs.\nJudge HUNTER concurs in part, dissents in part.\n. The Rule of Lenity is defined as \u201ca court, in construing an ambiguous criminal statute that sets out multiple or inconsistent punishments, should resolve the ambiguity in favor of the more lenient punishment.\u201d Black\u2019s Law Dictionary, 1332-33 (7th ed. 1999).",
        "type": "majority",
        "author": "BRYANT, Judge."
      },
      {
        "text": "HUNTER, Judge,\nconcurring in part, dissenting in part.\nI concur that the habitual impaired driving statute clearly refers to prior convictions. However, I respectfully dissent from the majority opinion in that I believe the trial court erroneously allowed an amendment to the habitual impaired driving indictment.\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 The purpose of an indictment is to give a defendant notice of the crime for which he is being charged. Our General Statutes state that \u201ca bill of indictment may not be amended.\u201d N.C. Gen. Stat. \u00a7 15A-923(e) (2001), which has been interpreted by our Supreme Court 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\nState v. Cathey, 162 N.C. App. 350, 352, 590 S.E.2d 408, 410 (2004) (citations omitted). \u201cThus, a \u2018non-essential variance is not fatal to the charged offense,\u2019 and any \u2018averment unnecessary to charge the offense : . . may be disregarded as inconsequential surplusage.\u2019 \u201d State v. Brady, 147 N.C. App. 755, 758, 557 S.E.2d 148, 151 (2001) (citation omitted).\nIn this case, defendant was indicted for a violation of N.C. Gen. Stat. \u00a7 20-138.5(a) (2003), habitual impaired driving, which states: \u201cA person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within seven years of the date of this offense.\u201d Id. The conviction of three or more offenses involving impaired driving within seven years of the present offense are necessary elements for the charge of habitual impaired driving. See id.; State v. Vardiman, 146 N.C. App. 381, 384, 552 S.E.2d 697, 700 (2001) (indicating habitual impaired driving is a substantive offense with the conviction of three or more offenses within seven years of the present offense as necessary elements). Therefore the date of the conviction is necessary to charge the offense and not mere surplusage. See Brady, 147 N.C. App. at 758, 557 S.E.2d at 151. In this case, the present offense occurred on 9 April 2000. The State acknowledged in its brief that the original indictment erroneously reflected the date of the 1993 driving while impaired offense, 1 April 1993, rather than the date of the 1993 conviction, 11 August 1993. By including the offense date in the indictment, which was eight days outside of the seven year time period for habitual impaired driving, the State did not properly indict defendant for habitual impaired driving. Accordingly, the indictment amendment allowed at trial was a substantial alteration of the charge and was not allowed under N.C. Gen. Stat. \u00a7 15A-923(e).\nMoreover, the indictment amendment was a substantial alteration of the charge because it elevated defendant\u2019s offense to a felony from a misdemeanor. To be convicted of habitual impaired driving, the State must first prove the defendant violated N.C. Gen. Stat. \u00a7 20-138.1, impaired driving, a misdemeanor. If the State meets its burden of proof regarding whether the defendant violated N.C. Gen. Stat. \u00a7 20-138.1, the State must then prove the defendant had three prior convictions involving impaired driving within seven years of the present offense. See N.C. Gen. Stat. \u00a7 15A-928(c). If the State so proves, or if the defendant stipulates to the prior convictions, the defendant is punished as a Class F felon and is sentenced to not less than twelve months active imprisonment. See N.C. Gen. Stat. \u00a7 20-138.5.\nIn this case, the State did not allege three prior convictions within seven years in the original habitual impaired driving indictment. Thus, under the original indictment, defendant could not be convicted of habitual impaired driving and would only be sentenced for the misdemeanor impaired driving charge. By amending the indictment at trial to include a conviction date within the seven year time period, defendant\u2019s charge was enhanced to a felony. An indictment amendment which elevates a misdemeanor charge to a felony is a substantial alteration and is not permitted under N.C. Gen. Stat. \u00a7 15A-923(e). See State v. Moses, 154 N.C. App. 332, 338, 572 S.E.2d 223, 228 (2002) (stating the addition of an aggravating factor which elevates a charge to a felony from a misdemeanor is a substantial alteration of an indictment). Accordingly, I would vacate judgment on the habitual impaired driving indictment and remand for resentencing on the misdemeanor charge of impaired driving.\n. We note that the State was not precluded from filing a superseding indictment prior to trial which properly alleged three prior convictions within the seven year time period.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "HUNTER, Judge,"
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.",
      "Richard E. Jester for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROBERT GREGORY WINSLOW\nNo. COA04-647\n(Filed 15 March 2005)\n1. Motor Vehicles\u2014 habitual DWI \u2014 indictment\u2014date of prior conviction \u2014 amendment\u2014Rule of Lenity\nThe indictment used to charge defendant with habitual DWI was not fatally defective even though it originally alleged that one of defendant\u2019s prior DWI convictions occurred on 1 April 1993, which was actually the date of the offense and eight days outside the seven-year limitation of the habitual DWI statute, N.C.G.S. \u00a7 20-138.5(a), where the trial court allowed the prosecutor\u2019s motion to amend the indictment to reflect the date of conviction on 11 August 1993. The Rule of Lenity did not require that the date of the offense rather than the date of conviction be used in the inteipretation of the DWI statute because the statute clearly refers to prior convictions, and there is no ambiguity in the statute.\n2. Indictment and Information\u2014 amendment \u2014 habitual driving while impaired \u2014 no substantial alteration\nThe trial court did not err in a habitual driving while impaired case by allowing the State to amend the indictment after the State rested, because: (1) permitting the State to amend the indictment in the instant case to reflect the date of conviction rather than the date of the offense did not impair defendant\u2019s ability to defend the charge of habitual DWI; (2) time was not of the essence as the indictment specified defendant was being charged with habitual DWI; (3) defendant never denied having been convicted of the 1993 DWI, he had notice of the 1993 DWI, and he had ample time to prepare for trial; and (4) the amendment to the indictment did not substantially alter the charge set forth in the indictment.\nJudge Hunter concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 6 November 2001 by Judge J. Richard Parker in Gates County Superior Court. Heard in the Court of Appeals 13 January 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.\nRichard E. Jester for defendant-appellant."
  },
  "file_name": "0137-01",
  "first_page_order": 167,
  "last_page_order": 174
}
