An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1019


Filed: 6 May 2003


         v.                        New Hanover County
                                Nos. 01 CRS 57454
                                     01 CRS 52468

    Appeal by defendant from judgments entered 9 November 2001 by Judge Anthony M. Brannon in New Hanover County Superior Court. Heard in the Court of Appeals 14 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Steven Armstrong, for the State.

    Adrian M. Lapas for defendant appellant.

    ELMORE, Judge.

    Defendant was found guilty of robbery with a dangerous weapon, possession with intent to sell or deliver heroin, and resisting a public officer. He was sentenced by separate judgments to a minimum term of 100 months and a maximum term of 129 months for robbery with a dangerous weapon, to a minimum term of ten months and a maximum term of twelve months for the controlled substances offense, and to an active term of forty-five days for resisting a public officer.
    The sole issue presented by this appeal is whether the trial court erred by amending the indictment charging defendant with resisting a public officer to state the duty the officer wasattempting to discharge.
    The indictment before its amendment by the court charged as follows:
        AND THE JURORS FOR THE STATE UPON THEIR OATH present . . . the defendant named above unlawfully and willfully did resist, delay and obstruct OFFICER B.A. GOMEZ, a public officer holding the office of WILMINGTON POLICE OFFICER, by running. At the time, the officer was discharging and attempting to discharge a duty of his office.

At the close of the State's evidence, the State moved to amend the indictment to allege the duty the officer was discharging or attempting to discharge. The court deferred ruling upon the motion until the close of all the evidence, at which time the court allowed the motion and amended the indictment to add the following words at the conclusion of the second sentence: “to wit, investigating an armed robbery during an investigative stop.”
    The law is settled that an indictment charging one with resisting a public officer in violation of N.C. Gen. Stat. § 14-223 (2001) must specifically allege the duty being discharged by the officer. See, e.g., State v. Dunston, 256 N.C. 203, 204, 123 S.E.2d 480, 481 (1962); State v. Jenkins, 238 N.C. 396, 398, 77 S.E.2d 796, 797 (1953); State v. Thorne, 238 N.C. 392, 395, 78 S.E.2d 140, 142 (1953). It is also settled that an indictment may not be amended. N.C. Gen. Stat. § 15A-923(e) (2001). An impermissible amendment to an indictment is one which substantially alters the charge. State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, cert. denied, 294 N.C. 737, 244 S.E.2d 155 (1978). To amend the indictment to supply an essential element of theoffense that had been lacking in the indictment is, we conclude, a substantial alteration of the charge.             
    We therefore hold the conviction of resisting a public officer
must be vacated. The other convictions we do not consider, and therefore they remain intact.
    Assignments of error number one through three and five were not argued in respondent's brief and are therefore deemed waived under the North Carolina Rules of Appellate Procedure, Rule 28(a).
    Affirmed in part, vacated in part.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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