{ "id": 4175181, "name": "STATE OF NORTH CAROLINA v. CHRISTOPHER WAYNE JOHNSON", "name_abbreviation": "State v. Johnson", "decision_date": "2010-03-02", "docket_number": "No. COA09-696", "first_page": "765", "last_page": "769", "citations": [ { "type": "official", "cite": "202 N.C. App. 765" } ], "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": "167 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555421 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0661-01" ] }, { "cite": "31 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687326 ], "weight": 2, "year": 1848, "opinion_index": 0, "case_paths": [ "/nc/31/0180-01" ] }, { "cite": "216 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "150" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550951 ], "year": 1975, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0220-01" ] }, { "cite": "224 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555903 ], "year": 1976, "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0372-01" ] }, { "cite": "185 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1971, "pin_cites": [ { "page": "149" } ], "opinion_index": 0 }, { "cite": "280 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570300 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0167-01" ] }, { "cite": "108 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1959, "pin_cites": [ { "page": "861" }, { "page": "860" } ], "opinion_index": 0 }, { "cite": "250 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624666 ], "weight": 3, "year": 1959, "pin_cites": [ { "page": "518-19" } ], "opinion_index": 0, "case_paths": [ "/nc/250/0514-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 492, "char_count": 9044, "ocr_confidence": 0.759, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3470710068424839 }, "sha256": "59ea0c980364bfda5a2e6dafab5c033acc3c91bace55f9ae13c677821a5b770d", "simhash": "1:3578d560c223736b", "word_count": 1491 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STEELMAN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHRISTOPHER WAYNE JOHNSON" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nChristopher Wayne Johnson (\u201cdefendant\u201d) appeals the trial court\u2019s denial of his motion to dismiss the charges alleged in the indictment of \u201cunlawfully, willfully and feloniously\u201d selling and delivering cocaine to \u201cDetective Dunabro\u201d at the close of the State\u2019s casein-chief. Defendant contends that there was a fatal variance between the indictment and the proof with respect to the name of the purchaser, because the State\u2019s evidence tended to show that the purchaser was \u201cAgent Amy Gaulden,\u201d not \u201cDetective Dunabro.\u201d Since Detective Dunabro and Agent Amy Gaulden are the same person, and she was commonly known by both her maiden and married name, we find the description contained in the indictment and the evidence adduced at trial sufficiently identifies the purchaser to meet the jurisdictional requirements of our case law. For the reasons discussed herein, we find no error.\nI. FACTUAL BACKGROUND\nOn 5 September 2006, defendant was indicted for two offenses arising from violations of N.C. Gen. Stat. \u00a7 90-95(a)(l): (1) possession with intent to manufacture, sell and deliver cocaine, a controlled substance under Schedule II and (2) sale and delivery of a controlled substance to \u201cDetective Dunabro.\u201d Defendant was tried on 5 February 2009.\nIn pertinent part, the State\u2019s evidence, as presented during its case-in-chief, tended to show the following: Officer Mark Ward, a Surry County Deputy Sheriff, asked SBI Dectective Amy Gaulden, then stationed in Winston-Salem, to come to Surry County to participate in an undercover drug transaction. Deputy Sheriff Ward and Detective Gaulden previously attended a Drug Enforcement Administration (\u201cDEA\u201d) school which sponsored a two-week course for local law enforcement officers. Officer Ward identified Detective Gaulden for the jury, stating that they attended DEA school together; however, he clarified that \u201c[s]he wasn\u2019t a Gaulden then.\u201d Subsequently, Detective Gaulden testified that her name was Amy Gaulden; however, the prosecutor did not inquire as to Detective Gaulden\u2019s maiden name or other names by which she was known. Detective Gaulden testified that she purchased cocaine from defendant during a drug transaction arranged by the Surry County Sheriffs office. She further testified that it was necessary for her to make the purchase to protect the identity of a confidential informant working with the Surry County Sheriff\u2019s office.\nAt the close of the State\u2019s case-in-chief, defendant moved to dismiss the charges and this motion was denied by the trial court. Following the defense\u2019s evidence, including defendant\u2019s testimony wherein he denied the charges, the' State, during its rebuttal case, introduced testimony from Deputy Sheriff Ward that Detective Gaulden\u2019s name was Dunabro when she and Deputy Sheriff Ward met, but that she was married in July 2006. Defendant did not object to the State\u2019s rebuttal evidence. At the close of all the evidence, defendant was found guilty of the drug charges. Defendant was also found guilty of, and pled guilty to, the offense of being an habitual felon and was sentenced to an active term of 120 to 153 months\u2019 imprisonment. On appeal, defendant initially made three assignments of error; however, all but one have been abandoned.\nII. Analysis\nDefendant argues that his motion to dismiss should have been granted based on his contention that there was a fatal variance between the indictment and the evidence produced during the State\u2019s case-in-chief. Specifically, defendant argues that the indictment names \u201cDetective Dunabro\u201d as the purchaser of the cocaine; however, he contends that no evidence was supplied during the State\u2019s case-in-chief regarding a \u201cDetective Dunabro.\u201d In support of this argument, defendant relies upon State v. Bissette, 250 N.C. 514, 108 S.E.2d 858 (1959) and State v. Bennett, 280 N.C. 167, 185 S.E.2d 147 (1971).\nIn Bissette the Court held that an indictment charging a defendant with unlawfully selling tobacco seed must aver that the sale was made to some particular person or persons, or to some person or persons unknown. 250 N.C. at 518-19, 108 S.E.2d at 861. The Court reasoned that an indictment must clearly and accurately allege all of the essential elements of the offense to be charged in order to\n(1) ... identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice 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 nolo contendere or guilty to pronounce sentence according to the rights of the case.\nId. at 516, 108 S.E.2d at 860. Moreover, in Bennett the Court held that an indictment must contain the name of the purchaser where there is a statute outlawing sales of contraband which does not modify \u201cthe common-law requirement that the name of the person, to whom the accused allegedly sold narcotics unlawfully, be stated in the indictment when it is known.\u201d 280 N.C. at 169, 185 S.E.2d at 149.\nBased on the aforementioned, the general rule appears to be the following: Where a sale is prohibited, it is necessary for a conviction to allege in the bill of indictment the name of the person to whom the sale was made, or that his name is unknown, unless some statute eliminates that requirement. See Bissette, 250 N.C. 514, 108 S.E.2d 858; Bennett, 280 N.C. 167, 185 S.E.2d 147. Moreover, the proof must conform to the allegations and establish a sale to the named person or state that the purchaser was in fact unknown. See id.\nIn this case, both requirements o\u00ed Bissette and Bennett have been met given that the indictment named \u201cDetective Dunabro\u201d as the purchaser of the drugs. First, the name of a purchaser was included in the indictment, thus meeting the pleading requirement of Bissette. Secondly, the purchaser was sufficiently identified in the indictment to meet the constitutional requirements that the defendant be able to prepare for trial and avoid double jeopardy.\nThe object and purpose of describing a person by that person\u2019s name is to identify the person. State v. Salter, 29 N.C. App. 372, 374, 224 S.E.2d 247, 249 (1976); see also 54 Am. Jur. 2d Names \u00a7 64 (2009). As a general rule, and at common law, a person may be designated in a legal proceeding by the name by which the person is commonly known, even though it may not constitute the person\u2019s \u201ctrue name.\u201d Id. Moreover, it is not necessary that the person be known as well by the one name as by the other, and it is sufficient if the person is known by both names. See id.\nA person has a common law right to assume any name he or she lawfully chooses. In re Mohlman, 26 N.C. App. 220, 225, 216 S.E.2d 147, 150 (1975). A married woman acquires her husband\u2019s surname by repute only, as a matter of custom, rather than as a matter of law. Here, Detective Dunabro and Amy Gaulden are the same person and she is known by both names. The use of either name is merely a legal identification. It is common in today\u2019s society for persons to have professional names by which they are known. For instance, law enforcement officers and persons engaged in any other occupation are entitled to use their professional names at work. Moreover, defendant has not established any prejudice arising from the indictment\u2019s use of the purchaser\u2019s maiden name, nor is there any evidence of fraud or misrepresentation in the use of more than one name.\nWhere different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide. See Toole v. Peterson, 31 N.C. 180, 9 Ired. 180 (1848); State v. Walls, 4 N.C. App. 661, 167 S.E.2d 547 (1969). Here, the jury resolved the issue. The indictment and the evidence sufficiently established the identity of the purchaser to meet constitutional standards and requirements of proof. Accordingly, we find\nNo error.\nJudges ELMORE and STEELMAN concur.\n. See Romeo and Juliet (II, ii, 1-2)\n\u201cWhat\u2019s in a name? That which we call a rose By any other name would smell as sweet.\u201d", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State.", "Irving Joyner for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHRISTOPHER WAYNE JOHNSON\nNo. COA09-696\n(Filed 2 March 2010)\nIndictment and Information\u2014 variance \u2014 different names relating to same person \u2014 identity\u2014jury question\nThe trial court did not err by denying defendant\u2019s motion to dismiss drug charges even though he contends there was a fatal variance between the indictment and the evidence produced during the case-in-chief. Where different names are alleged to relate to the same person, the question is one of identity and is exclusively for the jury to decide. The indictment and the evidence sufficiently established the identity of the purchaser to meet constitutional standards and requirements of proof.\nAppeal by defendant from judgment entered 5 February 2009 by Judge Anderson D. Cromer in Surry County Superior Court. Heard in the Court of Appeals 28 October 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State.\nIrving Joyner for defendant-appellant." }, "file_name": "0765-01", "first_page_order": 793, "last_page_order": 797 }