STATE OF NORTH CAROLINA
v
.
Union County
No. 99 CRS 9760
JACK ROBINSON,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Claud R. Whitener, III, for the State.
W. David McSheehan, for defendant-appellant.
BRYANT, Judge.
On 3 July 1999, three motorcyclists--Greg Covington, Rodney
Wynn and Julian Lindsey--were riding through Monroe, North
Carolina, to a bike show in Lancaster, South Carolina. A dog owned
by the Strempke family ran into the road and was struck and killed
by Wynn's bike. The three continued traveling about a mile down
the road before they pulled into a service station to inspect the
bike. Meanwhile, Mr. Strempke got into his truck and followed the
three when they did not pull over to check on the dog. When he got
to the service station, he got out of his truck and called the
police. At some point, Strempke returned home and the cyclists decided
to turn around because of the damage to Wynn's bike. The cyclists
pulled into the Strempkes' driveway on the return trip to talk to
Strempke about the damage to Wynn's bike and to see if the dog was
hurt. When Strempke heard the three returning, he told his wife to
go inside and call defendant Jack Robinson, the neighbor who lived
across the street. Strempke then retrieved a pistol and called 9-
1-1 again. When defendant arrived, he loaded a twelve gauge
pistol-grip shotgun from his truck. As he approached the cyclists,
he shouted, “Do you need me?” several times to see if Strempke
needed help. When Covington told defendant that there was no need
for a gun, defendant swung the gun at Covington, telling him, “I'll
point my [f---ing] gun wherever I want to.”
A criminal summons was issued the same day, charging defendant
with assault by pointing a gun at “Greg Robinson.” Defendant was
tried and convicted on 30 July 1999 in district court. Defendant
gave notice of appeal to superior court for a trial de novo.
Following a trial by jury he was convicted on 9 June 2000.
Defendant filed a motion for appropriate relief on 16 June 2000,
and gave notice of appeal to this Court the same day. The motion
for appropriate relief was heard on 26 June 2000 in Union County
Superior Court, where the State made an oral motion to amend the
criminal summons to reflect the victim's proper last name. On 11
September 2000, the trial court filed an order allowing the State's
motion to amend and denying defendant's motion for appropriaterelief. Defendant again gave notice of appeal to this Court on 21
September 2000.
The issues in this case are summarized as follows: 1)
whether a motion to amend a criminal summons after final judgment
pursuant to N.C.G.S. § 15A-922(f) may be made orally; and 2) if
so, whether an amendment changing the last name of the victim from
“Robinson” (defendant's last name) to “Covington” changes the
nature of the offense such that the motion to amend must be denied.
Defendant first takes issue with the fact that the State did
not file a written motion to amend the summons; rather, the State
made an oral motion on 26 June 2000, ten days after defendant gave
notice of appeal to this Court from judgment entered 9 June 2000.
Defendant cites only to N.C.G.S. § 15A-922(f) in support of this
argument. We therefore limit the scope of our review to § 15A-
922(f). See N.C. R. App. P. 28(b)(5).
Section 15A-922(f) states, “A statement of charges, criminal
summons, warrant for arrest, citation, or magistrate's order may be
amended at any time prior to or after final judgment when the
amendment does not change the nature of the offense charged.”
N.C.G.S. § 15A-922(f) (1999). Nowhere in this statute is there a
requirement that the State file a written motion to amend a
criminal summons. Accordingly, we find this argument has no merit.
Finding that the State's oral motion was proper, we next
address whether the amendment changing the last name of the victim
from “Robinson” to “Covington” changed the nature of the offense.
We hold that it did not. Section § 15A-303(b) of the North Carolina General Statutes
states, “The criminal summons must contain a statement of the crime
or infraction of which the person summoned is accused. No criminal
summons is invalid because of any technicality of pleading if the
statement is sufficient to identify the crime or infraction.”
N.C.G.S. § 15A-303(b) (1999). “An indictment or criminal charge is
constitutionally sufficient if it apprises the defendant of the
charge against him with enough certainty to enable him to prepare
his defense and to protect him from subsequent prosecution for the
same offense.” State v. Coker, 312 N.C. 432, 434, 323 S.E.2d 343,
346 (1984).
Defendant was charged with assault by pointing a gun pursuant
to N.C.G.S. § 14-34, which states: “If any person shall point any
gun or pistol at any person, either in fun or otherwise, whether
such gun or pistol be loaded or not loaded, he shall be guilty of
a Class A1 misdemeanor.” N.C.G.S. § 14-34 (1999) (emphasis added).
The criminal summons charging defendant “Jack Robinson” with
assault by pointing a gun at “Greg Robinson” was technically
defective in that the correct name of the victim was “Greg
Covington.” The defendant was tried on this criminal summons and
convicted in district court. He thereafter appealed his conviction
to superior court where he was again tried and convicted on this
criminal summons. The record does not indicate that defendant
objected or excepted to the technical error in the criminal summons
at any point during the proceedings before the district and
superior courts or at any time prior to his motion for appropriaterelief. At the hearing on defendant's motion for appropriate relief
the trial court allowed the State to amend the summons and denied
defendant's motion, finding “[t]he name of Greg Robinson on the
criminal summons is an obvious typographical error on the part of
the magistrate, where the last name of the defendant was
erroneously substituted for the last name of the victim.”
In State v. Reeves, 62 N.C. App. 219, 302 S.E.2d 658 (1983),
defendant was charged with misdemeanor larceny of a jacket. The
arrest warrant listed the property owner as Southland Shirt Outlet.
The State moved to amend the warrant to allege the owner as
National Service Industries, Inc., d.b.a. Southland Shirt Outlet.
The trial court granted the motion. On appeal, this Court found no
error, holding that, although it is essential to allege the owner
of the property taken, “[a]mending the arrest warrant at trial to
change the owner of the property taken does not change the nature
of the offense charged. After the amendment, defendant was tried
for the same offense that is alleged in the warrant.” Id. at 224,
302 S.E.2d at 661.
In the instant case, we hold that the trial court's amendment
of the criminal summons based on N.C.G.S. § 15A-922(f) was proper
in that it did not change the nature of the offense charged.
Therefore, we find no error in the trial court's technical
amendment to the criminal summons in this case.
NO ERROR.
Judges TIMMONS-GOODSON and SMITH concur.
Report per 30(e).
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