An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1157


Filed: 21 June 2005


         v.                        McDowell County
                                No. 02 CRS 53869

    Appeal by defendant from judgment entered 23 March 2004 by Judge James U. Downs in Superior Court, McDowell County. Heard in the Court of Appeals 30 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Hope Murphy White, for the State.

    M. Victoria Jayne for defendant.

    McGEE, Judge.

    Defendant was convicted of communicating threats and sentenced to a term of imprisonment of forty-five days. The sentence was suspended and defendant was placed on supervised probation for twenty-four months.
     The State's evidence at trial tended to show that on 21 October 2002, Ms. Molly Davis was operating a vehicle that passed a vehicle occupied by defendant and operated by defendant's daughter. While Ms. Davis waited at a traffic light, defendant motioned for Ms. Davis to pull over. Ms. Davis ignored defendant and continued to drive her vehicle. When defendant's vehicle caught up with Ms. Davis's vehicle, defendant pointed a gun at Ms. Davis and yelled, "I'll kill you this time. I got something to getyou with." The two vehicles subsequently collided when Ms. Davis's vehicle ran into the rear of the vehicle occupied by defendant.
    Defendant presented evidence tending to show that Ms. Davis had made prior remarks threatening defendant. Defendant's daughter, Crystal Curtis, testified that on 21 October 2002 defendant accompanied her as she ran some errands in her vehicle. As they waited at a traffic light, Ms. Davis drove her vehicle beside them and screamed at them. Ms. Davis followed Ms. Curtis and struck her vehicle from behind.
    The sole issue presented by defendant is whether the trial court erred by allowing the State to amend the warrant to change the date of the offense from 6 December 2002 to 21 October 2002.
    In general, a bill of indictment or charging document may not be amended. N.C. Gen. Stat. § 15A-923(e) (2004). An amendment has been defined by this Court as "any change in the indictment which would substantially alter the charge set forth in the indictment." State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478 (1978). Our Supreme Court has held that when time is not of the essence, an amendment of the date charged in the indictment does not constitute a substantial alteration of the charge. State v. Price, 310 N.C. 596, 598-99, 313 S.E.2d 556, 559 (1984). The Supreme Court noted that a variance as to time is a material alteration only when it affects the defendant's ability to prepare a defense, as when the defendant presents an alibi defense. Id. at 599, 313 S.E.2d at 559. In the case before us, defendant did not present an alibi defense.     We hold the trial court did not err in allowing the amendment to the warrant.
    No error.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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