An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 16 May 2006
STATE OF NORTH CAROLINA
v. Chatham County
No. 04 CRS 4266
MYRON T. FARRAR
Appeal by defendant from judgment entered 17 March 2005 by
Judge J.B. Allen, Jr. in Superior Court, Chatham County. Heard in
the Court of Appeals 24 April 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Brian C. Wilks, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant-appellant.
Myron T. Farrar (defendant) was convicted of assault with a
deadly weapon inflicting serious injury and sentenced to forty-six
to sixty-five months in prison on 17 March 2005. The indictment
charging him with this offense stated:
The jurors for the State upon their oath
present that on or about the date of offense
shown and in the county named above the
defendant named above unlawfully, willfully
and feloniously did assault Eddie Junior
Williams with a metal pipe, a deadly weapon,
inflicting serious injury.
The State's evidence at trial tended to show that Eddie
Williams (Mr. Williams) agreed to assist a woman with burning some
trash on 24 May 2004. When Mr. Williams was in the process ofbending over to light the wood to burn the trash, defendant "eased
up behind [him] through the woods and hit [Mr. Williams] in the
back of the head." Mr. Williams testified that defendant continued
to beat him on his back and head five or six times with an object
he could not see, but believed was a piece of wood. He further
testified the object made a "little tinkling" sound, that sounded
like a pipe.
At the close of the State's evidence, the State moved to amend
the indictment to identify the weapon used in the assault from "a
metal pipe" to "a stick or metal pipe." Over defense counsel's
objection, the trial court granted the motion.
Defendant argues the trial court erred in: (I) allowing the
State's motion to amend the indictment; (II) failing to dismiss the
charge of assault with a deadly weapon inflicting serious injury at
the close of the State's evidence due to an alleged fatal variance
between the indictment and the evidence at trial; (III) instructing
the jury on a theory of guilt allegedly not set forth in the
indictment; and (IV) defendant contends he received ineffective
assistance of counsel. We find no error.
I. State's Motion To Amend The Indictment
Defendant first argues the trial court erred in granting the
State's motion to amend the indictment charging defendant with
assault with a deadly weapon inflicting serious injury. Under N.C.
Gen. Stat. § 15A-923(e) (2005), an indictment may not be amended
"if the 'change in the indictment . . . would substantially alter
the charge set forth in the indictment[.]'" State v. Brady, 147N.C. App. 755, 758, 557 S.E.2d 148, 151 (2001)(quoting State v.
Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, disc. review
denied, 294 N.C. 737, 244 S.E.2d 155 (1978)). However, a
"non-essential variance is not fatal to the charged offense," and
any "averment unnecessary to charge the offense . . . may be
disregarded as inconsequential surplusage." State v. Grady, 136
N.C. App. 394, 396-98, 524 S.E.2d 75, 77-78 (holding that a change
in address on indictment for maintaining a dwelling for the use of
a controlled substance was not a substantial alteration), appeal
dismissed and disc. review denied, 352 N.C. 152, 544 S.E.2d 232
(2000). "This is so because an inadvertent variance neither
misleads nor surprises the defendant as to the nature of the
charges." Brady, 147 N.C. at 758-59, 557 S.E.2d at 151 (citing
State v. Campbell, 133 N.C. App. 531, 535-36, 515 S.E.2d 732, 735,
disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999)).
The facts in this case are substantially similar to those in
State v. Joyce, 104 N.C. App. 558, 410 S.E.2d 516 (1991), cert.
denied, 331 N.C. 120, 414 S.E.2d 764 (1992). In Joyce, the
defendant argued the trial court erred in allowing the State's
motion to amend the indictment charging him with robbery with a
dangerous weapon. Id. at 573, 410 S.E.2d at 525. The trial court
allowed the State to change the weapon used from "knife" to
"firearm." Id. Finding no error, our Court held the change to the
indictment did not "alter the burden of proof or constitute a
substantial change which would justify returning the indictment to
the grand jury." Id. As in Joyce, defendant here argues the trial court erred in
allowing the State's motion to amend the indictment charging him
with assault with a deadly weapon to change the weapon used from "a
metal pipe" to "a stick or metal pipe." Under Joyce, we conclude
the trial court did not err in allowing the amendment, because the
amendment did not alter the burden of proof or otherwise constitute
a substantial change.
Because the amendment was allowed immediately before the State
rested its case, defendant also argues his due process and
confrontation rights were violated as he was not allowed the
opportunity to shape his cross-examinations of the witnesses
regarding the altered allegation. We disagree. Defense counsel
cross-examined Mr. Williams about being hit with a "stick" and not
a "metal pipe." Further, State witness Dr. Woodward Burgert
testified Mr. Williams was treated at the emergency room as a
result of an assault with a "stick," and defense counsel cross-
examined him about this issue. Defendant, thus, has failed to
demonstrate how he suffered any prejudice due to the amendment.
Accordingly, we overrule this assignment of error.
II. Defendant's Motion To Dismiss
Defendant argues the trial court erred in denying his motion
to dismiss at the close of the State's evidence. In support,
defendant argues there was a fatal variance between the indictment
and the evidence presented at trial. Defendant's argument,
however, relies on the unamended version of the indictment.
Because we determined the trial court did not err in allowing theamendment to the indictment and the evidence presented at trial did
not vary from the amended indictment, this assignment of error is
III. Trial Court's Jury Instructions
Defendant argues the trial court erred by erroneously
instructing the jury on a theory of guilt not set forth in the
indictment. In particular, defendant argues the trial court erred
by instructing the jury that it could find defendant guilty if he
used a "stick or metal pipe." As with defendant's second argument,
this argument relies on the unamended version of the indictment.
Because we determined the trial court did not err in allowing the
amendment, we find this assignment of error likewise is without
IV. Ineffective Assistance Of Counsel
Defendant argues his trial counsel was ineffective. When a
defendant attacks a conviction on the basis that defense counsel
was ineffective, the defendant must show that defense counsel's
conduct fell below an objective standard of reasonableness.
, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248
Strickland v. Washington
, 466 U.S. 668, 687-88, 80 L.
Ed. 2d 674, 693, reh'g denied
, 467 U.S. 1267, 82 L. Ed. 2d 864
(1984)). To meet this burden, a defendant must satisfy a two-part
"First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant mustshow that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable
. (Emphasis added)."
at 562, 324 S.E.2d at 248 (quoting Strickland
, 466 U.S. at
687, 80 L. Ed. 2d at 693).
In this case, Mr. Williams had been convicted of second-degree
rape more than ten years prior to defendant's trial. During the
State's case-in-chief, defense counsel wanted to cross-examine Mr.
Williams about the conviction. Defense counsel argued the
conviction was admissible on the following two issues because
defendant raised a claim of self-defense: "One, whether or not the
victim [wa]s the aggressor in this particular case; and two, what
was going through [defendant]'s mind at the time that this happened
to cause him to apprehend for his own safety[.]" The trial court
was not inclined to allow defense counsel to cross-examine Mr.
Williams about the prior conviction during the State's case-in-
chief because, if Mr. Williams testified that he had previously
been convicted of second-degree rape and defendant later decided
not to testify as to self-defense, then the admission of such
evidence would be highly prejudicial to the State. The trial court
informed defense counsel that "it would be appropriate for me to
rule on this after the defendant testifies." Defense counsel
informed the trial court that he would not cross-examine Mr.
Williams about the conviction.
Because defense counsel allegedly acquiesced and subsequently
did not call Mr. Williams as a witness in defendant's case-in-chief, defendant argues his trial counsel was ineffective.
, defendant was able to establish that trial
counsel erred, it is unclear whether the trial court would have
allowed defense counsel to question Mr. Williams about the prior
conviction, as the trial court informed counsel it would wait to
rule on the issue until after defendant testified. Further,
defendant has failed to establish he was prejudiced as a result of
counsel's action. Defendant testified that he knew of Mr.
William's reputation in the community for violence and that "[h]e
has been known to carry guns and been in confrontations, shooting,
things like that[, and he] brutally raped an elderly lady." The
jury thereby learned about Mr. William's prior crime through
defendant's testimony. Accordingly, we conclude defendant has
failed to show he was prejudiced by his trial counsel's alleged
deficient performance to such a degree "that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland
466 U.S. at 694, 80 L. Ed. 2d at 698. This assignment of error is
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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