A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-986


Filed: 2 July 2002


v .                         Cumberland County
                            No. 96 CRS 5010 (52 & 53)

    Appeal by defendant from judgment entered 30 March 1999 by Judge Gregory A. Weeks in Superior Court, Cumberland County. Heard in the Court of Appeals 22 May 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State.

    Margaret Creasy Ciardella, for the defendant-appellant.

    WYNN, Judge.

    Defendant, Mitchell Quarterman, presents one issue for our review: Whether his indictment charging that he conjunctively conspired with Troy Barksdale and Eddie Sanders, fatally varied from the trial court's jury instruction in the disjunctive of conspiring with Troy Barksdale or Eddie Sanders. We answer, no, because the immaterial variance in the indictment in this case was not fatal to the prosecution of defendant, and the trial court correctly instructed the jury on the two conspiracies.     
    The facts in this case show that defendant believed that Anthony King was involved with his girlfriend, Myosha Middleton. In early January 1996, Anthony King found Middleton at her homecrying and acting as though she had been beaten. Believing her to be in danger, he took her to a motel, gave her money to spend the night, left that night and arrived the next morning to pick her up. When he came out of the motel with Middleton, defendant pulled up in the parking lot acting “like a wild maniac.” Defendant tried to grab Middleton but Anthony King interceded.
    After that incident, defendant, a soldier stationed at Fort Bragg, solicited two other soldiers, Eddie Sanders and Troy Barksdale, to kill Anthony King. On the night of the crimes charged in this case, defendant assembled the three and rode with them in Barksdale's car to meet Anthony King at a convenience store. Defendant had a handgun and a large kitchen knife that he took from Sanders' house. Barksdale had a sawed-off shotgun in the rear of his car.
    Anthony King and his cousin, Roland King rode to the convenience store in a van. On the arrival of the three other men, Barksdale rode with Anthony King, and Roland King rode in the front-passenger seat of Barksdale's car. Shortly thereafter, Barksdale shot Anthony King in the face with a handgun and attempted to shoot him again but the gun jammed. He then got out of the van to get the sawed-off shotgun. Meanwhile, defendant, who sat behind Roland King in the other vehicle, fatally cut Roland King's throat with the kitchen knife.
    Anthony King survived the gunshot wound and drove the van back to the convenience store where the clerk called law enforcement officers. The three men had followed him but gave up their pursuitupon seeing the officers at the convenience store. They threw the knife out of the car and defendant put the handgun and shotgun under someone's trailer. Thereafter, defendant asked Barksdale to stab him with a steak knife to make it look like self-defense, Barksdale refused but agreed to hit defendant several times.
    A week after the incident, Sanders and Barksdale gave incriminating statements to the police soundly implicating defendant, which were substantially corroborative of their trial testimony.
    Defendant testified in his defense that he was not part of any plan to kill Anthony or Roland King. He stated that his role was to get Sanders and Barksdale with Anthony King to buy stolen clothing and sell marijuana. He denied taking a knife from Sanders' house and denied seeing any guns in the car. He stated that when Barksdale's car pulled over, he heard Sanders say, “he's got a knife.” He then jumped out of the car and saw that Roland King had been cut and Sanders was cutting Roland King's seatbelt with a knife. Defendant said that Barksdale came up holding a shotgun and told him to get in the car to go after Anthony King. According to defendant, Barksdale told him that Anthony King pulled a gun on him in the van. Defendant denied hiding guns under a trailer and said that Sanders told him to use the name Mike to identify the killer. He acknowledged that an incident occurred involving Anthony King and Middleton outside the motel but he said he had broken up with her and was not jealous of Anthony King.
    The jury found defendant guilty of conspiracy and the assaultcharges but was unable to reach a verdict on the murder charge, for which the trial court declared a mistrial. The trial judge sentenced defendant to 157 to 198 months in prison for the conspiracy to commit murder charge, and to a concurrent term of 93 to 121 months to run on the assault. On 30 March 1999, pursuant to a plea agreement, defendant pled guilty to second-degree murder for which he received a sentence of 132 to 168 months for the second- degree murder conviction.
    On appeal, defendant argues that the trial court erred by giving jury instructions on conspiracy to commit murder that fatally varied from the indictment of that crime. We disagree.
    The record shows that defendant did not object to the instruction at his trial; accordingly, our review is limited to plain error. See N.C.R. App. P. 10(b)(2) (2001); State v. Christian, __ N.C. App. ___, 562 S.E.2d 568 (2002); State v. Bradley, 91 N.C. App. 559, 373 S.E.2d 130 (1988), disc. review denied, 324 N.C. 144, 377 S.E.2d 238 (1989) (A party must object to a jury charge, or any omission therefrom before the jury retires.). To show plain error, defendant must show that it was a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982); see also State v. Dale, 343 N.C. 71, 468 S.E.2d 39 (1996); U.S. v. Cotton, 122 S.Ct. 1781 (filed May 2002). Before granting relief based on the plain error rule, “theappellate court must be convinced that absent the error the jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Thus, we review for plain error defendant's contention that the trial court's instructions fatally varied from the indictment.
    An indictment should provide notice to a defendant of the crime for which he is being charged; and, 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. See State v. Bowen, 139 N.C. App. 18, 24, 533 S.E.2d 248, 252 (2000).

        [I]t is not the function of an indictment to bind the hands of the State with technical rules of pleading; rather, its purposes are to identify clearly the crime being charged, thereby putting the accused on reasonable notice to defend against it and prepare for trial, and to protect the accused from being jeopardized by the State more than once for the same crime.

State v. Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981).

In making out an indictment or criminal summons, the State need only allege ultimate facts, not evidentiary matters. See State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998).
        The purpose of an indictment is at least twofold: First, to make clear the offense charged so that the investigation may be confined to that offense, that proper procedure may be followed, and applicable law invoked; second, to put the defendant on reasonable notice so as to enable him to make his defense. When these purposes are served, the functions of the indictment are not so impaired by the omission of subordinatedetails.

State v. Gregory, 223 N.C. 415, 420, 27 S.E.2d 140, 143 (1943).
    In this case, the indictment stated:

        AND JURORS FOR THE STATE UPON THEIR OATH PRESENT that on or about the 21st day of January, 1996, in the county named above the defendant named above unlawfully, willfully and feloniously did conspire with Troy Lavander Barksdale, Eddie Sanders, and other unknown persons to commit the murder of Roland King and Anthony Terrance King, in violation of North Carolina General Statutes Section 14-17. The act was in violation of the North Carolina Common Law and North Carolina General Statutes Section 14-2.4.

    At trial, the trial court instructed the jury as follows:
        Now, in the second count, the defendant has been accused of feloniously conspiring to commit the premeditated first-degree murder of Anthony Terrance King. And I charge that for you to find the defendant guilty of feloniously conspiring to commit the premeditated first-degree murder of Anthony Terrance King, the state must prove three things beyond a reasonable doubt.

        First, that the defendant and Troy Levander Barksdale and/or Eddie Sanders entered into an agreement.

        Second, that the agreement was to commit the premeditated first-degree murder of Anthony Terrance King.

        And, members of the jury, I instruct you that you will recall and apply the instructions that I've previously given you as to offense of premeditated first-degree murder.

        And third, the state must prove beyond a reasonable doubt that the defendant and Troy Levander Barksdale and/or Eddie Sanders intended that the agreement be carried out at the time it was made.

        So I charge if you find from the evidence andbeyond a reasonable doubt that on or about the alleged date, the defendant agreed with Troy Levander Barksdale and/or Eddie Sanders to commit the premeditated first-degree murder of Anthony Terrance King, and that the defendant and said persons intended at the time the agreement was made that it would be carried out, it would be your duty to return a verdict of guilty as charged.

    Defendant argues that the indictment's conjunctive phrase of “Troy Lavander Barksdale, Eddie Sanders, and other unknown persons” fatally varied from the jury instruction's disjunctive phrase of “Troy Levander Barksdale and/or Eddie Sanders.” We disagree.
    First, the indictment in this case gave clear notice to defendant of the crime in which he was charged. See State v. Creason, 313 N.C. 122, 130, 326 S.E.2d 24, 29 (1985). Indeed, the indictment put defendant on notice that he was charged with conspiring with co-conspirators, Barksdale and Sanders, to murder Anthony King. The phrasing under indictment in the conjunctive and under the instruction in the disjunctive was materially insignificant. “The use of a conjunctive in the indictment does not require the State to prove various alternative matters alleged.” State v. Montgomery, 331 N.C. 559, 569, 417 S.E.2d 742, 747 (1992).
    Moreover, defendant had notice of the charge against him of conspiring with another person. There is no error if, “the allegations and proof, although variant, are of the same legal signification. An immaterial variance in an indictment is not fatal.” State v. Simmons, 57 N.C. App. 548, 551, 291 S.E.2d 815, 817 (1982) (citation omitted); see also State v. Craft, 168 N.C.208, 212, 83 S.E. 772, 774 (1914) (“[A] variance will not result where the allegations and proof, although variant, are of the same legal signification. An immaterial variance in an indictment is not fatal.”).
    Nonetheless, defendant further argues that the disjunctive instruction allowed the jury to reach a non-unanimous verdict by finding defendant guilty of either of two conspiracies. We disagree.
    To convict defendant, the jury had to find that defendant conspired with one other person, which could have been Barksdale or Sanders or both and that the agreement was to commit or assist in committing murder. See State v. Merrill, 138 N.C. App. 215, 218, 530 S.E.2d 608, 611 (2000). At trial, defendant tried to show that the attempted murder was planned and carried out by Barksdale and Sanders. Yet he did not contend that they acted independently of each other nor that there was more than one conspiracy. There was only one conspiracy and the jury did not have to find that both Barksdale and Sanders were involved in the conspiracy to convict defendant.
    Moreover, the evidence was overwhelming that three men acted in concert in setting up and carrying out the attempted murder of Anthony King. The overwhelming evidence showed that defendant procured a gun to kill Anthony King; arranged a meeting with Anthony King; and attempted to find Anthony King after the murder of Roland King. The testimony of defendant's two co-conspirators, both who pled guilty to conspiracy charges, showed that defendanthad the motive to kill Anthony King; organized the three of them to commit murder; and acted as the leader of the men in carrying out the plan.
    Before granting relief based on the plain error rule, “the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Here, because the State presented substantial evidence of defendant's guilt, we find no plain error.
    No error.    
    Judges HUNTER and THOMAS concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***