{ "id": 4176271, "name": "STATE OF NORTH CAROLINA v. STEVEN DAVID TAYLOR, Defendant", "name_abbreviation": "State v. Taylor", "decision_date": "2010-04-20", "docket_number": "No. COA09-1360", "first_page": "448", "last_page": "460", "citations": [ { "type": "official", "cite": "203 N.C. App. 448" } ], "court": { "name_abbreviation": "N.C. Ct. 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App. 615", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959520 ], "year": 2003, "pin_cites": [ { "page": "624", "parenthetical": "\"Because defendant acknowledges his possession of the gun in this statement, it effectively disposes of his argument that there is no evidence of possession.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0615-01" ] }, { "cite": "589 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491655, 491400, 491788, 491695, 491634, 491828, 491637, 491894, 491546 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0580-06", "/nc/357/0580-05", "/nc/357/0580-08", "/nc/357/0580-09", "/nc/357/0580-04", "/nc/357/0580-02", "/nc/357/0580-03", "/nc/357/0580-01", "/nc/357/0580-07" ] }, { "cite": "585 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "262" }, { "page": "262", "parenthetical": "concluding circumstantial evidence was sufficient to withstand motion to dismiss charge of firearm possession where defendant was found carrying a bag containing firearm residue and a rifle was found concealed in a pile of tires near where defendant had been recently seen" } ], "opinion_index": 0 }, { "cite": "160 N.C. 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App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11220522 ], "year": 1999, "pin_cites": [ { "page": "535-36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0531-01" ] }, { "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": "313 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "558", "parenthetical": "quoting State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, appeal dismissed and disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978)" }, { "page": "559" } ], "opinion_index": 0 }, { "cite": "310 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396898 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "598", "parenthetical": "quoting State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, appeal dismissed and disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978)" }, { "page": "598-99" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0596-01" ] }, { "cite": "373 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562377, 2566140, 2560912, 2565048, 2562684 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0368-01", "/nc/323/0368-05", "/nc/323/0368-04", "/nc/323/0368-03", "/nc/323/0368-02" ] }, { "cite": "366 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 3, "year": 2009, "opinion_index": 0 }, { "cite": "466 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "709", "parenthetical": "\"Any person who has been convicted of or pled guilty to three felony offenses is declared by statute to be an habitual felon.\"" } ], "opinion_index": 0 }, { "cite": "342 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796151 ], "year": 1996, "pin_cites": [ { "page": "634", "parenthetical": "\"Any person who has been convicted of or pled guilty to three felony offenses is declared by statute to be an habitual felon.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0633-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2009, "pin_cites": [ { "page": "(a)" }, { "page": "(c)", "parenthetical": "emphasis added" }, { "page": "(c)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1087, "char_count": 30635, "ocr_confidence": 0.74, "pagerank": { "raw": 6.194328933084476e-08, "percentile": 0.3840138942463441 }, "sha256": "0cbdcb1579fa5aed32d0a846c191277c5e2f50ef356cab0ce49c805ea762dc57", "simhash": "1:a33b65e3f4cf0cda", "word_count": 5078 }, "last_updated": "2023-07-14T21:32:21.116750+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and HUNTER, Robert N., Jr. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. STEVEN DAVID TAYLOR, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant Steven David Taylor appeals from his convictions of possession of a firearm by a felon and having attained habitual felon status. Defendant primarily argues on appeal that the trial court erred in not dismissing both indictments for being facially insufficient to support the charges and due to a fatal variance between the indictments and the evidence at trial. We conclude, however, that the indictments are sufficient to support the offenses alleged and that there was no fatal variance between the indictments and proof at trial. Accordingly, we find no error.\nFacts\nThe State\u2019s evidence tended to establish the following facts at trial: On 24 June 2008 defendant was placed on intensive probation after pleading guilty to fleeing/eluding arrest in a motor vehicle and failure to heed blue lights or a siren. He met with his probation officer, Officer Benjamin Lynch, the same day, telling Officer Lynch that he was living in a cabin in the woods on Amy Lane on family property in Polk County, North Carolina. Defendant\u2019s cabin is located a short distance down an unmaintained dirt road. The cabin is a one room A-frame style house with no electricity or running water. The cabin is situated at the edge of a clearing in the woods, with a small stream running directly behind it. Roughly 100 to 200 yards through the woods, there are four or five other houses located on a hill on defendant\u2019s family\u2019s property. Defendant\u2019s father lives in one house and Chris Abril, a former law enforcement officer, lives in another. Between defendant\u2019s father\u2019s residence and defendant\u2019s cabin is a shooting range used by Mr. Abril.\nOn 29 June 2008, Officer Lynch drove to defendant\u2019s cabin to conduct a routine visit. Officer Lynch arrived at defendant\u2019s cabin around 8:00 p.m. and saw defendant standing near a fire pit in the clearing around the cabin. When defendant saw Officer Lynch pull up, he \u201ctook off\u2019 running toward the cabin and went inside. Defendant then came back outside onto the porch of the cabin, holding a cup containing \u201cmoonshine.\u201d Defendant appeared to be \u201cextremely impaired.\u201d Officer Lynch asked defendant why he had run into the cabin and defendant responded: \u201cNothing.\u201d For safety purposes, Officer Lynch patted down defendant, finding in his pocket an old knife and some .45 caliber shells that smelled like they had \u201cjust recently [been] fired.\u201d He then asked defendant where he had gotten the shells and defendant responded that he had been out shooting that day, but that he had already taken the gun back to his father\u2019s house.\nOfficer Lynch began searching the cabin and found a small box containing what appeared to be marijuana residue and rolling papers. While Officer Lynch continued to search the cabin, defendant started rambling and asking Officer Lynch to \u201cgive him a break.\u201d Defendant eventually told Officer Lynch that he had a box of ammunition outside the cabin. Defendant took Officer Lynch outside and showed him two boxes of ammunition located approximately a foot from the cabin. The boxes contained .45 caliber shells, some of which had already been fired, and three magazines designed to hold .45 caliber shells. Two of the magazines where fully loaded. After seizing the ammunition and magazines, Officer Lynch searched the immediate area and found a .45 caliber semi-automatic handgun in the undergrowth approximately 25 to 30 feet from the door to the cabin along a trail from the road up to the cabin. After finding the gun, Officer Lynch asked defendant about it and defendant told him that it was his father\u2019s and asked if he could take it back to his father\u2019s house.\nOfficer Lynch then took the gun and the ammunition to secure it in his vehicle. Defendant followed Officer Lynch to his vehicle and got into the passenger seat while Officer Lynch was placing the items in the backseat. Defendant kept asking Officer Lynch to \u201cgive him a break\u201d and allow him to take the gun back to his father. Because defendant was \u201cacting a little strange,\u201d Officer Lynch called the Polk County Sheriff\u2019s Department for assistance. Defendant kept looking back at the gun in the backseat and at Officer Lynch\u2019s gun, so Officer Lynch took the gun from the backseat and kept it with him. Concerned for his safety, Officer Lynch told defendant that he would not arrest him for a probation violation.\nOfficer Lynch radioed the sheriffs department again, asking that they \u201cstep ... up\u201d their response and defendant stated that there were other guns in the woods and that \u201che knew how to use them.\u201d Defendant got mad and stated that he would run away to California where no one could find him. Defendant then threatened to kill himself. When Officer Lynch called the sheriffs department again, defendant got out of the vehicle and ran into the cabin. Defendant soon came back out and showed Officer Lynch a handful of pills, claiming that they were Lortab. Defendant then swallowed the pills, grabbed the knife from the kitchen table in cabin, and \u201ctook off running up the path\u201d towards Mr. Abril\u2019s and his father\u2019s residences. Officer Lynch immediately radioed for an ambulance and began running after defendant. Officer Lynch caught defendant, took the knife away from him, and attempted to place him under arrest. While trying to handcuff defendant, defendant \u201cjerked away\u201d from Officer Lynch and began running back toward his cabin. Officer Lynch ran after defendant, and when defendant tried to dodge Officer Lynch they collided and fell to the ground. Officer Lynch handcuffed defendant and placed him under arrest. After the sheriff\u2019s deputies and the ambulance arrived, defendant was taken to the hospital. The woods around defendant\u2019s cabin were searched again, but no other weapons were found.\nDefendant was charged with possession of a firearm by a felon and having attained habitual felon status. Defendant pled not guilty to the charges and the case proceeded to trial. At the close of the evidence during the firearm possession phase, defendant moved to dismiss the charge for insufficient evidence. The motion was denied. Defendant also moved to dismiss the indictment on the ground that there was a fatal variance between the indictment and the proof at trial, where the judgment for defendant\u2019s prior felony of possession with intent to sell or deliver marijuana (\u201cPWISD marijuana\u201d) indicated that the offense was committed on 18 December 1992 while the firearm possession indictment alleged that the date of commission was 8 December 1992. That motion was also denied and defendant was convicted of possession of a firearm by a felon.\nPrior to presenting evidence in the habitual felon phase of the trial, the State moved to amend the indictment with respect to the date defendant committed the prior PWISD marijuana offense. The trial court granted the State\u2019s motion to amend the indictment so that it alleged that the offense was committed between 8 and 18 December 1992. At the close of the evidence, defendant moved to dismiss the habitual felon indictment on the same ground as his motion to dismiss the firearm possession indictment. That motion was also denied. The jury convicted defendant of having attained habitual felon status and the trial court consolidated the firearm possession and habitual felon convictions into one judgment, sentencing defendant to a presumptive-range term of 151 to 191 months imprisonment. Defendant timely appeals to this Court.\nI\nDefendant first argues that the trial court erred by denying his motions to dismiss the indictments for possession of a firearm by a felon and having attained habitual felon status. Defendant contends that (1) the indictments were insufficient on their faces to support the offenses for which defendant was convicted as they failed to contain information required by statute and (2) there is a fatal variance between the allegations in the indictments and the evidence at trial.\nA. Sufficiency of Indictments\nDefendant argues that his motions to dismiss the firearm possession and habitual felon indictments should have been granted as they fail to sufficiently allege the date defendant committed a prior felony supporting both indictments. Defendant claims that the facial deficiency of the indictments deprived the trial court of subject-matter jurisdiction to adjudicate the offenses.\nDefendant was indicted for possession of a firearm by a felon in violation of N.C. Gen. Stat. \u00a7 14-415.1(a) (2009), which prohibits \u201cany person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm or any weapon of mass death and destruction as defined in G.S. 14-288.8(c).\u201d The statute also specifies the information to be contained in a proper indictment for possession of a firearm by a felon: \u201cAn indictment which charges the person with violation of this section must set forth the date that the prior offense was committed, the type of offense and the penalty therefor, and the date that the defendant was convicted or plead guilty to such offense, the identity of the court in which the conviction or plea of guilty took place and the verdict and judgment rendered therein.\u201d N.C. Gen. Stat. \u00a7 14-415.1(c) (emphasis added).\nDefendant was also indicted for having attained habitual felon status under N.C. Gen. Stat. \u00a7 14-7.1 (2009), which defines a \u201chabitual felon\u201d as \u201c[a]ny person who has been convicted of or pled guilty to three felony offenses in any federal court or state court in the United States or combination thereof . . . .\u201d Accord State v. Patton, 342 N.C. 633, 634, 466 S.E.2d 708, 709 (1996) (\u201cAny person who has been convicted of or pled guilty to three felony offenses is declared by statute to be an habitual felon.\u201d). N.C. Gen. Stat. \u00a7 14-7.3 (2009) provides in pertinent part:\nAn indictment which charges a person with being an habitual felon must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.\n(Emphasis added.)\nThe State used defendant\u2019s prior felony conviction of PWISD marijuana (92 CRS 1292) in support of both the firearm possession and habitual felon indictments. Both indictments allege that the PWISD marijuana offense occurred on \u201c12/8/1992.\u201d However, defendant\u2019s PWISD marijuana judgment, which was introduced at trial as evidence of the present charges, identifies \u201c12/18/92\u201d as the date the offense was committed. Based on this discrepancy regarding the commission date of his PWISD marijuana offense, defendant maintains that the firearm possession and habitual felon indictments are insufficient under N.C. Gen. Stat. \u00a7 14-415.1(c) and N.C. Gen. Stat. \u00a7 14-7.3.\nAlthough \u201ca statute requires a particular allegation, the omission of such an allegation from an indictment is not necessarily fatal to jurisdictionf.]\u201d State v. Inman, 174 N.C. App. 567, 569, 621 S.E.2d 306, 308 (2005), disc. review denied, 360 N.C. 652, 638 S.E.2d 907 (2006). As the Supreme Court has explained:\n\u201cIn determining the mandatory or directory nature of a statute, the importance of the provision involved may be taken into consideration. Generally speaking, those provisions which are a mere matter of form, or which are not material, do not affect any substantial right, and do not relate to the essence of the thing to be done so that compliance is a matter of convenience rather than substance, are considered to be directory.\u201d . . .\nWhile, ordinarily, the word \u201cmust\u201d and the word \u201cshall,\u201d in a statute, are deemed to indicate a legislative intent to make the provision of the statute mandatory, and a failure to observe it fatal to the validity of the purported action, it is not necessarily so and the legislative intent is to be derived from a consideration of the entire statute.\nState v. House, 295 N.C. 189, 203, 244 S.E.2d 654, 661-62 (1978) (quoting 73 Am. Jur. 2d Statutes \u00a7 19).\nWith respect to an indictment for possession of a firearm by a felon, this Court has held that \u201cthe provision of \u00a7 14-415.1(c) that requires the indictment to state the penalty for the prior offense is not material and does not affect a substantial right\u201d as the \u201c[defendant is no less apprised of the conduct which is the subject of the accusation than he would have been if the penalty for the prior conviction had been included in the indictment.\u201d State v. Boston, 165 N.C. App. 214, 218, 598 S.E.2d 163, 166 (2004). This Court has similarly held that N.C. Gen. Stat. \u00a7 14-415.l(c)\u2019s requirement that a firearm possession indictment state the date of a defendant\u2019s prior felony conviction \u201cis not material and does not affect a substantial right.\u201d Inman, 174 N.C. App. at 571, 621 S.E.2d at 309.\nApplying the rationale in Boston and Inman to this case, we conclude that the discrepancy regarding the date of commission of defendant\u2019s prior felony offense is not material and does not affect a substantial right. Here, the firearm possession indictment specifies the prior felony (PWISD marijuana) and its penalty, the date of defendant\u2019s guilty plea, the court in which defendant\u2019s plea occurred, the file number of the case (92 CRS 1292), and defendant\u2019s sentence. Given this information in the indictment, \u201c[defendant is no less apprised of the conduct which is the subject of the accusation than he would have been\u201d if the date of commission of his prior felony offense had been correctly included in the firearm possession indictment. Boston, 165 N.C. App. at 218, 598 S.E.2d at 166. \u201cTo hold otherwise would permit form to prevail over substance.\u201d Id.\nWith respect to defendant\u2019s habitual felon indictment, this Court has held that \u201cthe date alleged in the indictment is neither an essential nor a substantial fact as to the charge of habitual felon ....\u201d State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519 (1994). It is \u201cthe fact that another felony was committed, not its specific date, which [i]s the essential question in the habitual felon indictment.\u201d Id.\nHere, defendant\u2019s habitual felon indictment provided notice of the three prior felonies being used to support the indictment, the dates the felonies were committed, the jurisdiction in which they were committed, the dates of convictions, the court in which the convictions took place, and the file numbers of the cases. Despite the discrepancy regarding the date defendant committed the prior PWISD marijuana offense, the habitual felon indictment in this case provided defendant with adequate notice of the prior felonies supporting the indictment in order for defendant to prepare a defense. See State v. Briggs, 137 N.C. App. 125, 130-31, 526 S.E.2d 678, 681-82 (2000) (\u201cThe purpose of an habitual felon indictment is to provide a defendant \u2018with sufficient notice that he is being tried as a recidivist to enable him to prepare an adequate defense to that charge,\u2019 and not to provide the defendant with an opportunity to defend himself against the underlying felonies____[A]n indictment for habitual felon is sufficient if it provides a defendant with notice of his prior felony convictions.\u201d (quoting State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 864 (1995)). We, therefore, conclude that the firearm possession and habitual felon indictments were sufficient on their faces to support the offenses of which defendant was convicted.\nB. Fatal Variance\nSimilar to his argument regarding the sufficiency of the indictments, defendant contends that the discrepancy in the firearm possession and habitual felon indictments and defendant\u2019s PWISD marijuana judgment regarding the date defendant committed the prior felony is a fatal variance between the allegations in the indictments and the proof at trial. A motion to dismiss based on a variance \u201cis in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged.\u201d State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971). A variance between the criminal offense charged in the indictment and the offense established by the evidence is, in essence, a failure of the State to establish the offense charged. State v. Pickens, 346 N.C. 628, 645-46, 488 S.E.2d 162, 172 (1997). Not every variance, however, is sufficient to require dismissal. State v. Rawls, 70 N.C. App. 230, 232, 319 S.E.2d 622, 624 (1984), cert. denied, 317 N.C. 713, 347 S.E.2d 451 (1986). \u201c[T]he defendant must show a fatal variance between the offense charged and the proof as to \u2018[t]he gist of the offense.\u2019 \u201d Pickens, 346 N.C. at 646, 488 S.E.2d at 172 (quoting Waddell, 279 N.C. at 445, 183 S.E.2d at 646). In order to be fatal, the variance must relate to an \u201cessential element of the offense.\u201d Id. The purpose for prohibiting a variance between allegations contained in an indictment and evidence established at trial is to enable the defendant to prepare a defense against the crime with which the defendant is charged and to protect the defendant from another prosecution for the same incident. State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002).\nWhere the date of the commission of an offense is not an \u201cessential ingredient of the offense charged,\u201d the State may \u201cprove that it was committed on some other date.\u201d State v. Wilson, 264 N.C. 373, 377, 141 S.E.2d 801, 804 (1965). \u201c \u2018The failure to state accurately the date or time an offense is alleged to have occurred does not invalidate a bill of indictment nor does it justify reversal of a conviction obtained thereon.\u2019 \u201d Locklear, 117 N.C. App. at 260, 450 S.E.2d at 519 (quoting State v. Cameron, 83 N.C. App. 69, 72, 349 S.E.2d 327, 329 (1986)).\nThe \u201cgist\u201d of the offense of possession of a firearm by a felon is the present possession of a firearm by a person previously convicted of a felony. N.C. Gen. Stat. \u00a7 14-415.1(a). The precise date on which that prior felony was committed is not essential to the charge. See Inman, 174 N.C. App. at 571, 621 S.E.2d at 309; Boston, 165 N.C. App. at 218, 598 S.E.2d at 166.\nAlthough a status, and not a substantive offense, the purpose of charging a defendant with having attained habitual felon status is to \u201cenhance the punishment which would otherwise be appropriate for the substantive felony which [the defendant] has allegedly committed while in such a status.\u201d State v. Allen, 292 N.C. 431, 435, 233 S.E.2d 585, 588 (1977). The date of commission of a prior felony offense is not essential to a charge of having attained habitual felon status. State v. Spruill, 89 N.C. App. 580, 582, 366 S.E.2d 547, 548 (holding that there was no fatal variance between habitual felon indictment and evidence at trial regarding date of commission of offense as \u201c[t]ime [i]s not of the essence as to this offense\u201d), cert. denied, 323 N.C. 368, 373 S.E.2d 554 (1988).\nThe date on which a defendant committed a prior felony is not an essential element of either possession of a firearm by a felon or having attained habitual felon status. Thus, the discrepancy in the indictments alleging that defendant committed the prior PWISD marijuana felony on 8 December 1992 and the PWISD marijuana judgment stating that the offense was committed on 18 December 1992 is not a fatal variance. The trial court properly denied defendant\u2019s motion to dismiss.\nII\nDefendant next argues that the trial court erred in granting the State\u2019s motion to amend his habitual felon indictment under N.C. Gen. Stat. \u00a7 14-7.3. After the jury found defendant guilty of possession of a firearm by a felon, the prosecutor, over defendant\u2019s objection, moved to amend the habitual felon indictment to \u201cexpand the date of offense [for defendant\u2019s PWISD felony] to 12-8-1992 through 12-18-1992.\u201d The trial court granted the motion to amend the indictment as to the date defendant committed the prior PWISD marijuana felony, and copies of defendant\u2019s three prior felonies referenced in the indictment were admitted and published to the jury, including the PWISD marijuana indictment indicating that the offense occurred on 18 December 1992.\nN.C. Gen. Stat. \u00a7 15A-923(e) (2009) provides that \u201c[a] bill of indictment may not be amended.\u201d This statute, however, has been interpreted to prohibit only those changes \u201c \u2018which 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) (quoting State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, appeal dismissed and disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978)). \u201cA change in an indictment does not constitute an amendment where the variance was inadvertent and [the] defendant was neither misled nor surprised as to the nature of the charges.\u201d State v. Campbell, 133 N.C. App. 531, 535-36, 515 S.E.2d 732, 735, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). \u201c[W]here time is not an essential element of the crime, an amendment relating to the date of the offense is permissible since the amendment would not \u2018substantially 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) (quoting Price, 310 N.C. at 598-99, 313 S.E.2d at 559)).\nWith respect to amendments to habitual felon indictments regarding the date a defendant committed a prior felony supporting the indictment, this Court has held that \u201cthe date alleged in the indictment is neither an essential nor a substantial fact as to the charge of habitual felon . . . .\u201d Locklear, 117 N.C. App. at 260, 450 S.E.2d at 519. \u201c[I]t [i]s the fact that another felony was committed, not its specific date, which [i]s the essential question in the habitual felon indicment.\u201d Id. The trial court, therefore, may properly permit amendment to a habitual felon indictment to alter the date of commission of an underlying felony under N.C. Gen. Stat. \u00a7 15A-923(e).\nHere, although the amendment to defendant\u2019s habitual felon indictment changed the date of commission of defendant\u2019s PWISD marijuana felony, the amendment did not alter the stated offense, the file number of the case, the date on which defendant pled guilty to the charge, or the court in which defendant pled guilty. The indictment in this case provided adequate notice to defendant of the specific felony convictions supporting the charge of his having attained habitual felon status. See State v. Lewis, 162 N.C. App. 277, 285, 590 S.E.2d 318, 324 (2004) (holding trial court did not err in amending habitual felon indictment to change date and county of conviction of prior felony where indictment included other information \u201csufficientf] [to] notif[y] defendant of the particular conviction that was being used to support his status as an habitual felon\u201d). The trial court, therefore, did not err in allowing the State to amend the indictment.\nIll\nIn his final argument on appeal, defendant contends that the trial court erred in denying his motion to dismiss the possession of a firearm by a felon charge for insufficient evidence. An appellate court \u201creviews the denial of a motion to dismiss for insufficient evidence de novo.\u201d State v. Robledo, 193 N.C. App. 521, 525, 668 S.E.2d 91, 94 (2008). A defendant\u2019s motion to dismiss should be denied if there is substantial evidence: (1) of each essential element of the offense charged and (2) of defendant\u2019s being the perpetrator of the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201cIn ruling on a motion to dismiss, the trial court is required to view the evidence in the light most favorable to the State, making all reasonable inferences from the evidence in favor of the State.\u201d State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002). Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).\nIn order to obtain a conviction for possession of a firearm by a felon, the State must establish that (1) the defendant has been convicted of or pled guilty to a felony and (2) the defendant, subsequent to the conviction or guilty, possessed a firearm. State v. Wood, 185 N.C. App. 227, 235, 647 S.E.2d 679, 686, disc. review denied, 361 N.C. 703, 655 S.E.2d 402 (2007); N.C. Gen. Stat. \u00a7 14415.1(a). Defendant does not challenge his status as a convicted felon \u2014 only the sufficiency of the evidence regarding his possession of a firearm. Defendant argues that the State failed to present substantial evidence that he was in possession of the handgun found in the undergrowth roughly 25 to 30 feet from the door to defendant\u2019s cabin.\nPossession of a firearm may be actual or constructive. State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998). Actual possession requires that the defendant have physical or personal custody of the firearm. Id. In contrast, the defendant has constructive possession of the firearm when the weapon is not in the defendant\u2019s physical custody, but the defendant is aware of its presence and has both the power and intent to control its disposition or use. Id. When the defendant does not have exclusive possession of the location where the firearm is found, the State is required to show other incriminating circumstances in order to establish constructive possession. State v. Young, 190 N.C. App. 458, 461, 660 S.E.2d 574, 577 (2008). Constructive possession depends on the totality of the circumstances in each case. State v. Glasco, 160 N.C. App. 150, 157, 585 S.E.2d 257, 262, disc. review denied, 357 N.C. 580, 589 S.E.2d 356 (2003).\nIn this case, the State proceeded at trial on the theory of constructive possession and thus was required to prove the existence of other incriminating circumstances. The evidence presented at trial tends to establish that Officer Lynch went to defendant\u2019s cabin for a routine probation visit on 29 June 2008 and that when defendant saw Officer Lynch driving up to the cabin, he \u201ctook off toward the house\u201d and ran inside. Officer Lynch frisked defendant for safety reasons and found in his pockets an old knife and several spent .45 caliber shells that smelled like they had \u201cjust recently [been] fired.\u201d When asked about the shells, defendant told Officer Lynch that he had been \u201coutside shooting that day\u201d but that he had \u201calready got rid of the weapon.\u201d\nOfficer Lynch asked defendant if he had any more ammunition or guns and defendant told him that there was a box of ammunition outside the cabin. Defendant took Officer Lynch outside and showed him two boxes of ammunition within a foot of the cabin. The boxes contained .45 caliber shells, some of which were \u201cused and spent,\u201d matching the type found in defendant\u2019s pocket. The boxes also contained three magazines for a .45 caliber firearm; two were loaded and one was empty. Officer Lynch then searched the area around where the ammunition and magazines were located and found a .45 caliber semi-automatic handgun in the undergrowth approximately 25 to 30 feet from the door to the cabin along a trail from the road up to the cabin. Officer Lynch searched this area because defendant ran along the trial into the cabin when Officer Lynch first arrived and Officer Lynch believed defendant would have been able to throw a gun in this area while running into the cabin. After finding the gun, Officer Lynch asked defendant about it and defendant told him that it was his father\u2019s and asked if he could take it back to him.\nThis evidence is sufficient to permit a reasonable jury to infer that defendant possessed the firearm in violation of N.C. Gen. Stat. \u00a7 14-415.1(a). See State v. Jones, 161 N.C. App. 615, 624, 589 S.E.2d 374, 379 (2003) (\u201cBecause defendant acknowledges his possession of the gun in this statement, it effectively disposes of his argument that there is no evidence of possession.\u201d), appeal dismissed and disc. review denied, 358 N.C. 379, 597 S.E.2d 770 (2004); Glasco, 160 N.C. App. at 157, 585 S.E.2d at 262 (concluding circumstantial evidence was sufficient to withstand motion to dismiss charge of firearm possession where defendant was found carrying a bag containing firearm residue and a rifle was found concealed in a pile of tires near where defendant had been recently seen). The trial court, therefore, properly denied defendant\u2019s motion to dismiss the charge of possession of a firearm by a felon.\nNo Error.\nJudges CALABRIA and HUNTER, Robert N., Jr. concur.\n. Defendant\u2019s other two prior felonies referenced in his habitual felon indictment \u2014 felony breaking and entering and felony fleeing/eluding arrest \u2014 are not at issue here as the indictment was not amended with respect to these offenses.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General E. Michael Heavner, for the State.", "Mercedes O. Chut for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEVEN DAVID TAYLOR, Defendant\nNo. COA09-1360\n(Filed 20 April 2010)\n1. Indictment and Information\u2014 variance \u2014 possession of firearm by felon \u2014 habitual felon \u2014 date of prior felony not essential element\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of possession of a firearm by a felon and attaining the status of a habitual felon based on a variance in the indictments. The date a defendant committed a prior felony was not an essential element of either charge, and thus the discrepancy of dates in the indictments was not a fatal variance.\n2. Indictment and Information\u2014 motion to amend \u2014 habitual felon \u2014 date of commission of prior felony\nThe trial court did not err by granting the State\u2019s motion to amend defendant\u2019s habitual felon indictment under N.C.G.S. \u00a7 14-7.3 regarding the date defendant committed a prior PWISD marijuana felony. The date was neither an essential nor a substantial fact for the habitual felon charge.\n3. Firearms and Other Weapons\u2014 possession of firearm by felon \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 constructive possession\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession of a firearm. The evidence was sufficient to permit a reasonable jury td infer that defendant constructively possessed a handgun found in the undergrowth roughly 25 to 30 feet from the door to defendant\u2019s cabin.\nAppeal by defendant from judgment entered 28 May 2009 by Judge Alan Z. Thornburg in Polk County Superior Court. Heard in the Court of Appeals 24 March 2010.\nAttorney General Roy Cooper, by Assistant Attorney General E. Michael Heavner, for the State.\nMercedes O. Chut for defendant-appellant." }, "file_name": "0448-01", "first_page_order": 476, "last_page_order": 488 }