STATE OF NORTH CAROLINA
v
.
Durham County
Nos. 01 CRS 58999
MICHAEL ORES BRANDENBURG, 01 CRS 59001
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Samuel L. Bridges, for defendant-appellant.
HUDSON, Judge.
On 2 December 2001, warrants were issued charging defendant
Michael Brandenburg with driving while impaired (DWI), driving
while license revoked (DWLR), and possessing an open container of
an alcoholic beverage in the passenger compartment of a motor
vehicle. After conviction on all charges in district court,
defendant appealed for a trial de novo in superior court. The
matter was called for trial at the 4 November 2003 criminal session
of the superior court in Durham County. The jury convicted
defendant of DWI and DWLR, but found him not guilty of the open
container charge. The court sentenced defendant to twenty-five
months on the DWI charge and 120 days suspended, and thirty-six
months supervised probation to run at the expiration of the activesentence on the DWLR charge. Defendant appeals. For the reasons
discussed below, we conclude there was no error.
The evidence tended to show that on 2 December 2001, Durham
County Deputy Sheriff Chris Vermillion (“Deputy Vermillion”)
arrived at the scene of a single vehicle accident. Deputy
Vermillion found pieces of a vehicle's bumper in the road, and then
saw defendant's red pickup truck in a nearby driveway. The truck
was missing a piece of plastic cowling from the front bumper and
defendant was standing nearby with dirt in his hair and on his
shirt. The owner of a nearby home also stood near the truck.
Deputy Vermillion asked defendant what had happened and defendant
first told the deputy that he had been driving in the grass, then
claimed that someone had hit him from behind and made him wreck.
Deputy Vermillion testified that defendant was weaving back and
forth as he talked, and smelled strongly of alcohol.
Deputy Vermillion testified that he placed defendant under
arrest for DWI without administering a field sobriety test because
he could tell defendant could not perform the test. Deputy
Vermillion handcuffed defendant and placed him in the back of the
patrol car, and then went to speak to the homeowner. Deputy
Vermillion then heard defendant screaming and returned to the
patrol car. Defendant complained that the handcuffs were too
tight, and Deputy Vermillion loosened the cuffs and moved defendant
to the front seat of the car. Defendant then began yelling “don't
beat me,” and fell face-down out of the car onto the gravel.
Defendant said he was hurt, and Deputy Vermillion called anambulance, but left defendant on the ground while awaiting its
arrival.
The ambulance took defendant to the hospital, while Deputy
Vermillion collected a three-quarters empty bottle of grape wine,
a coat and a shotgun from defendant's truck. Deputy Vermillion
then followed the ambulance to the hospital. Deputy Vermillion
called for a chemical analyst to come to the hospital, but
defendant refused to allow a blood test.
At the close of the State's evidence, defendant moved to
dismiss the DWI and open container charges based on defective
warrants, citing N.C. Gen. Stat. § 15A-924(a)(5) and based on
sufficiency of the evidence. The court denied the motions to
dismiss, and allowed the State to file misdemeanor statements of
charges (“statements”) for the DWI and open container offenses to
cure any deficiencies in the warrants.
Defendant testified that a relative of his had been driving
his truck at the time of the accident and had left the scene to get
a jack to fix the truck's blown tire.
Defendant argues that the court erred in failing to dismiss
the charge of DWI because both the warrant and misdemeanor
statement of charges were defective. We disagree.
Defendant contends that the original warrant on the DWI charge
was defective because it omitted the essential element that the
offense occurred on a highway or public vehicular area. The
original warrant read:
I, the undersigned, find that there is
probable cause to believe that on or about thedate of offense shown and in the county named
above the defendant named above unlawfully and
did willfully operate a motor vehicle while
subject to an impairing substance.
Following the close of the State's evidence, defendant raised
this issue and moved to dismiss the DWI charge. The State
acknowledged that the warrant was defective, but argued that it
could cure the defect by filing a misdemeanor statement of charges
pursuant to N.C. Gen Stat. § 15A-922(e) as long as the statement
did not change the nature of the offense charged. The court denied
defendant's motion to dismiss and allowed the State to file the
misdemeanor statement of charges. The statement filed read:
I, the undersigned, upon information and
belief allege that on or about the date of
offense shown and in the county named above
the defendant named above did unlawfully and
willfully operate a motor vehicle on a street,
that street being Ellis Chapel Road, while
subject to an impairing substance.
Defendant then requested three working days to prepare after the
filing of the statement, which request the court denied, suggesting
that the statement made no material change. Defendant contends
that N.C. Gen Stat. § 15A-922(e) does not permit the State to file
a statement after the close of its evidence because it
substantially changed the nature of the State's theory of the case
and did not provide him sufficient notice.
“To be sufficient, any charging instrument, whether an
indictment, arrest warrant, or otherwise, must allege all essential
elements of the crime sought to be charged.” State v. Madry, 140
N.C. App. 600, 601, 537 S.E.2d 827, 828 (2000) (citing N.C. Gen.
Stat. § 15A-924(a)(5) (1999)). “The purpose of this requirement isto ensure that a defendant may adequately prepare his defense and
be able to plead double jeopardy if he is again tried for the same
offense.” Id. In Madry, this Court held a warrant fatally
defective because it charged the defendant with aiding and abetting
another in the charged offense, rather than with committing the
underlying offense itself. Id. We noted that, “[i]nstead of
issuing an amendment, the State should have filed a statement of
charges to rectify the situation.” Id. at 603, 537 S.E.2d at 829
(citing N.C. Gen. Stat. § 15A-922(b)). Further, as to the timing
of the filing, N.C. Gen. Stat. § 15A-922(f) provides
Amendment of Pleadings prior to or after Final
Judgment. -- 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. Gen. Stat. § 15A-922(f) (emphasis supplied).
Here, the State took exactly the action suggested and approved
by this Court in Madry, namely filing a statement of charges to
cure a defective warrant. Subsection (f) allows such filings “at
any time prior to or after final judgment” so long as “the
amendment does not change the nature of the offense charged.” The
defective warrant made clear the nature of the offense defendant
was charged with (driving while impaired).
Defendant further alleges constitutional error in the court's
denial of his motion to dismiss. However, defendant's brief fails
to argue this issue, and thus waives appellate review of it. N.C.
R. App. P. 10(c)(4). Defendant also refers to plain error in this argument, but
fails to argue plain error in his brief. An “empty assertion of
plain error, without supporting argument or analysis of prejudicial
impact, does not meet the spirit or intent of the plain error
rule.” State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61
(2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). “By
simply relying on the use of the words 'plain error' as the extent
of his argument in support of plain error, defendant has
effectively failed to argue plain error and has thereby waived
appellate review.” Id. (citing N.C. R. App. P. 10(c)(4)).
No error.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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