State v McGill, (05-1071) 06/06/2006

Appeal by defendant from judgment entered 24 February 2005 by Judge James W. Morgan in Catawba County Superior Court. Heard in the Court of Appeals 15 May 2006.

Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams and Assistant Attorney General Brandon L. Truman for the State.

Linda Jayne Stowers for defendant-appellant.

LEVINSON, Judge.

    Defendant Rodney Fidel McGill was charged with robbery with a dangerous weapon and assault with a deadly weapon inflicting serious injury. By a separate bill of indictment, defendant was also charged with attaining habitual felon status. The State's evidence tended to show that on the evening of 15 March 2003, Lucio Callejas-Maya (Callejas-Maya) was talking on his cell phone while he was seated in a truck. Defendant opened the truck door and demanded money. When Callejas-Maya told defendant that he did not have any money, defendant brandished a knife and attacked Callejas- Maya with it. Defendant cut Callejas-Maya in the chest, right forearm and right hand. During the attack, Callejas-Maya let go ofhis cell phone, which cost him $125. Defendant grabbed the cell phone and left. Callejas-Maya and three friends subsequently located defendant and recovered the phone.
    A jury found defendant not guilty of robbery with a dangerous weapon, but guilty of assault with a deadly weapon inflicting serious injury. The State then moved to amend the habitual felon indictment, which the trial court allowed over defendant's objection. Defendant then admitted his habitual felon status. The trial court sentenced defendant as a Class C habitual felon to 121 to 155 months imprisonment and ordered him to pay $800 in restitution to Frye Regional Medical Center and $125 to Callejas- Maya for the cell phone. Defendant appeals.
    Defendant first contends the trial court violated N.C. Gen. Stat. § 15A-923(e) (2005) by improperly amending his habitual felon indictment. The indictment alleged that defendant had been convicted of three prior felonies: (1) possession of cocaine committed on 7/19/92, convicted on 2/17/94 in Catawba County; (2) possession with intent to sell/deliver cocaine committed on 4/6/94, convicted on 9/27/94 in Catawba County; and (3) possession with intent to sell/deliver cocaine committed on 9/12/98, convicted on 5/30/00 in Catawba County. Defendant, however, had been convicted of possession of cocaine in all three cases. The trial court granted the State's motion to strike the words “possession with intent to sell and deliver cocaine” and insert in lieu thereof “possession of cocaine” for the second and third underlying felonies set forth in the indictment. Defendant argues thatchanging the name of two of the three predicate felonies substantially altered the charge and deprived the trial court of jurisdiction to sentence him as an habitual felon. We disagree.
    Section 15A-923(e) instructs that “[a] bill of indictment may not be amended.” The statute does not define the term “amendment.” Our courts, however, have defined the term to mean “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).    “It is well established that an indictment is sufficient under the Habitual Felons Act if it provides notice to a defendant that he is being tried as a recidivist.” State v. Williams, 99 N.C. App. 333, 335, 393 S.E.2d 156, 157 (1990). The habitual felon indictment “must set forth the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.” N.C. Gen. Stat. § 14-7.3 (2005).
    Here, the original indictment charged defendant with attaining habitual felon status based on three predicate felonies. Although the indictment did not list the correct offense name for the second and third felonies, it nonetheless stated that defendant had committed the felonies on 4/6/94 and 9/12/98, respectively, and that he had been convicted of the felonies on 9/27/94 and 5/30/00, respectively, in Catawba County. We conclude that defendant was given sufficient notice here that he was being tried as arecidivist, and that he could not have been misled or surprised as to the nature of the habitual felon indictment. The substitution of “possession of cocaine” for “possession with intent to sell and deliver cocaine” did not amount to an impermissible amendment of the indictment under G.S. § 15A-923(e) as it did not alter the charge of attaining habitual felon status. See State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519 (1994) (“it was the fact that another felony was committed, not its specific date, which was the essential question in the habitual felon indictment.”). This assignment of error is overruled.
    Defendant also contends the trial court erred in ordering him to pay $125 in restitution to the victim. At the beginning of defendant's sentencing hearing, the State tendered a restitution worksheet and victim impact statement to the trial court. The victim impact statement provided that Callejas-Maya suffered a loss of $125 as to his cell phone. After “considering the victim impact statement as far as restitution is involved, considering statements by counsel for defendant and statements of the defendant,” the trial court recommended that, as a condition of work release, defendant make restitution in the amount of $125. Subsequently, the following colloquy occurred between the trial court, State prosecutor and defendant's trial counsel:
        THE COURT: . . . A condition of work release that he make restitution . . . to Lucio Callejas-Maya in the amount of $125.

        [DEFENSE COUNSEL]: Your Honor, that 125 was the cell phone. It's my understanding the phone was recovered that night so I don't know that . . . restitution is applicable or not.
        [PROSECUTOR]: Your Honor, Mr. Maya just has informed me that he did receive the phone.

        THE COURT: Okay, strike the $125.

        [PROSECUTOR]: Well, the phone was broken when he got it back.

        [DEFENSE COUNSEL]: I didn't know that.

        THE COURT: Then reinstate it.

    Defendant asserts that there was insufficient evidence in the record to support the $125 restitution award because the cell phone was unrelated to his assault conviction. He further asserts there was no evidence in the trial or the sentencing hearing other than the prosecutor's unsworn statement supporting a finding that the cell phone was damaged. We disagree with defendant's contentions.
    Section 15A-1340.34 of the General Statutes authorizes the trial court to order restitution “for any injuries or damages arising directly and proximately out of the offense committed by the defendant.” N.C. Gen. Stat. § 15A-1340.34(c) (2005). “[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.” State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995). The unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered. State v. Buchanan, 108 N.C. App. 338, 341- 42, 423 S.E.2d 819, 821 (1992).
    Contrary to defendant's assertion, the restitution award was not based upon the unsworn statements of the prosecutor. First, Callejas-Maya testified at trial that his cell phone dropped to the ground during the assault. Second, the restitution worksheet andvictim impact statement were introduced into evidence during the sentencing hearing. The victim impact statement, signed and attested to by Callejas-Maya, stated that Callejas-Maya suffered a loss of $125 to his cell phone. Moreover, defendant's contention that the restitution for the cell phone was not sufficiently connected to the assault conviction is simply without merit. This assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge JACKSON concur.
    Report per Rule 30(e).

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