An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-106


Filed: 5 April 2005

                                Craven County
         v.                        Nos. 03 CRS 50335
                                    03 CRS 50336
WILLIAM WALLACE PITTMAN, III,                03 CRS 50337
        Defendant.                    03 CRS 50338

    Appeal by defendant from judgments entered 17 July 2003 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 17 January 2005.
    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

    Geoffrey W. Hosford for defendant-appellant.

    GEER, Judge.

     Defendant William Wallace Pittman appeals from his conviction of four counts of first degree sex offense. He contends on appeal that the trial court erred in allowing the State to amend the date of the indictment, in discharging a juror, and in denying defendant's motion to suppress his confession. Because (1) defendant has failed to demonstrate that he was prejudiced by the amendment, (2) the trial court did not abuse its discretion with respect to the juror, and (3) the trial court's findings of fact in denying the motion to suppress are supported by competent evidence, we hold that defendant received a trial free of prejudicial error.     A detailed summary of the evidence underlying the charges is not necessary for an understanding of defendant's three arguments on appeal. The State's evidence tended to show that the adultdefendant had the 10-year-old female victim perform oral sex on him on multiple occasions during the period from October 2002 until the end of that year. After the jury reached a verdict of guilty, the trial court sentenced defendant to two consecutive terms of imprisonment with a minimum of 240 months and a maximum of 297 months.

Amendment of the Indictment
    Defendant first contends that the court erred by allowing the State's motion to amend the indictments so that they alleged that the offenses occurred "October 2002 through December 2002" instead of "December, 2002," as originally stated. Although N.C. Gen. Stat. § 15A-923 (2003) provides that a bill of indictment may not be amended, our Supreme Court has held that this prohibition applies only to changes that would "substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 599, 313 S.E.2d 556, 558-59 (1984). When time is not an essential element of the crime, "an amendment in the indictment relating to the date of the offense is permissible since the amendment would not substantially alter the charge set forth in the indictment." State v. Campbell, 133 N.C. App. 531, 535, 515 S.E.2d 732, 735, disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999). A change in the date of the offense may be material and prohibited if it deprives the defendant of an opportunity to adequately present his defense. Id.
    In this case, although defendant objected to the proposed amendment, he conceded at trial that the amendment would notprejudice the preparation of his defense: "I object. I feel like I should object. I cannot necessarily express any prejudice that would cause me in my defense of Mr. Pittman." Defendant did not seek to present an alibi defense at trial that would have been impacted by the expanded time frame and defendant has not, on appeal, pointed to any other manner in which his defense was actually prejudiced apart from the general statement that the "unfair surprise[]" prevented him from relying on other unspecified defenses. This assignment of error is, therefore, overruled.
Discharge of Juror
    Defendant next contends that the court erred by discharging a juror and replacing her with an alternate juror. The record shows that during the State's case in chief, the court recessed for the evening at 4:55 p.m. The court directed the impaneled jurors to return the next morning at 9:25 a.m. When proceedings resumed the next morning at 9:40 a.m., juror number 6 was not present. The clerk called the juror's home and the juror answered the telephone. Upon learning that the juror lived in Havelock, the court announced that in its discretion it was discharging the juror and replacing her with the alternate juror. The juror ultimately arrived at court at 10:15 a.m., explaining that she had overslept.
    "It is within the trial court's discretion to excuse a juror and substitute an alternate at any time before final submission of the case to the jury panel." State v. Nelson, 298 N.C. 573, 593, 260 S.E.2d 629, 644 (1979), cert. denied, 446 U.S. 929, 64 L. Ed. 2d 282, 100 S. Ct. 1867 (1980). The court's decision is reviewedfor an abuse of discretion. Id. Defendant has not shown any abuse of discretion and we can discern none. This assignment of error is, therefore, overruled.
Motion to Suppress
    Defendant's final contention is that the court erred in denying his motion to suppress his statement. He argues the statement should have been excluded because it was made after he had invoked his right to counsel.     
    Review of a trial court's denial of a motion to suppress is limited to a determination whether the trial court's findings of fact are supported by competent evidence and whether those findings support the trial court's ultimate conclusion of law. State v. Thompson, 154 N.C. App. 194, 196, 571 S.E.2d 673, 675 (2002). The trial court's findings are conclusive if supported by competent evidence, even if the evidence is conflicting. State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001).
    The trial court found the following facts. On 13 January 2003, Investigator John Whitfield of the Craven County Sheriff's Department drove to defendant's home and arrested him. Whitfield transported defendant to the interrogation room of the sheriff's department and asked to speak to defendant regarding the allegations that had been made against him. Defendant indicated that he wished to talk to an attorney. Whitfield ceased interrogation and permitted defendant to call his attorney, but his attorney was not available to take defendant's call. Whitfield then proceeded to take defendant to the magistrate's office for thesetting of bond and to the booking room for fingerprinting. As Whitfield prepared to take defendant's fingerprints, defendant stated, "I can't believe I've done this . . . I can't believe I've hurt the people I love . . . I have done things before when I didn't remember what I've done." Defendant asked to speak further to Whitfield, who advised defendant that he could talk with him only after he advised defendant of his rights and defendant executed a waiver of rights. Whitfield then read defendant his Miranda rights and asked defendant whether he understood each right. Defendant responded affirmatively to each one. Whitfield next asked defendant whether he was willing to waive his rights and to speak to him about the matter at hand. Defendant executed and signed a written waiver of rights form and gave an inculpatory statement.
    Based upon these findings of fact, the court concluded that defendant made the statement freely, voluntarily, and understandingly; that defendant fully understood his constitutional rights; and that defendant freely, knowingly, intelligently, and voluntarily waived each of the rights.
    "Both the United States Supreme Court and [the North Carolina Supreme Court] have held that during a custodial interrogation, if the accused invokes his right to counsel, the interrogation must cease and cannot be resumed without an attorney being present 'unless the accused himself initiates further communication, exchanges, or conversations with the police.'" State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199 (2000) (quoting Edwards v.Arizona, 451 U.S. 477, 485, 68 L. Ed. 2d 378, 386 (1981)), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1380 (2001). Even when the accused initiates the communication after he has invoked the right to counsel, the defendant must also knowingly and intelligently waive the right to counsel and the right to remain silent in order for a post-invocation inculpatory statement to be admissible. State v. Lang, 309 N.C. 512, 521-22, 308 S.E.2d 317, 322 (1983). Therefore, prior to denying a motion to suppress a statement made after the defendant invoked the right to counsel, the court must find (1) that the defendant initiated the communication or exchange and (2) that the defendant knowingly and intelligently waived his rights before giving the inculpatory statement. State v. Tucker, 331 N.C. 12, 33, 414 S.E.2d 548, 560 (1992).
    We conclude the court made the requisite findings of fact and conclusions of law in this case. These findings are supported by competent evidence and are, therefore, binding on appeal. State v. Peterson, 347 N.C. 253, 255, 491 S.E.2d 223, 224 (1997). While defendant suggests that he was not, in fact, the one to initiate the communication that led to the inculpatory statement, the trial court's finding that he did is supported by competent evidence. Accordingly, we hold that the trial court did not err in denying the motion to suppress.

    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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