STATE OF NORTH CAROLINA
v
.
Onslow County
No. 05 CRS 58847
CHERYL JONES-WHITE
Attorney General Roy Cooper, by Assistant Attorney General
David J. Adinolfi II, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and
Terri W. Sharp, for defendant appellant.
McCULLOUGH, Judge.
Cheryl Jones-White (“defendant”) appeals judgments entered
consistent with a jury verdict finding defendant guilty of two
counts of threatening a court official and one count of
intimidating a witness.
Defendant waived the finding and return of a bill of
indictment and agreed to be tried upon an information alleging that
defendant threatened to kill District Court Judge Paul Hardison
(“Judge Hardison”) and Assistant District Attorney Jacqueline Smith
and attempted to deter Shirley Williams (“Ms. Williams”) from
attending court by threatening to kill her. These actions were
alleged to have occurred on or about 25 September 2005. Defendant's case was heard on 10 April 2006 at which time the
State presented the following evidence: Defendant and Ms. Williams
were involved in a romantic relationship for approximately six
years and lived together until sometime in August of 2005. In
August of 2005, a warrant was issued against defendant for the
assault of Ms. Williams. Ms. Williams testified that defendant
made several statements to Ms. Williams in which she threatened to
kill Ms. Williams, Judge Hardison and Assistant District Attorney
Jacqueline Smith if Ms. Williams testified against defendant. Ms.
Williams testified that these threats occurred on the 25th and 29th
of September and that she informed Assistant District Attorney
Jacqueline Smith of the threats. Ms. Williams further testified
that defendant offered her money to persuade her not to come to
court.
After being informed of the threats made upon Ms. Williams,
herself and Judge Hardison, Assistant District Attorney Jacqueline
Smith informed Judge Hardison of the threats, and he directed her
to get a detective in the courtroom. Detective Mike Muni, an
investigator with the Jacksonville Police Department, received a
call on 29 September 2005 regarding a request by Judge Hardison for
a detective to come to his courtroom to investigate a complaint.
When Detective Muni arrived in the courtroom, Assistant District
Attorney Jacqueline Smith informed him that defendant's bond
hearing was set to take place that day; and as a result, defendant
allegedly made threats against a witness called to testify against
defendant, as well as Judge Hardison and herself, and wanted thedetective to hear the testimony. Detective Muni listened to the
testimony of the victim, Ms. Williams, who testified that defendant
threatened to kill Ms. Williams, Judge Hardison and Assistant
District Attorney Jacqueline Smith if Ms. Williams showed up at the
bond hearing to testify.
Assistant District Attorney Jacqueline Smith testified that
she believed the threats made by defendant and was concerned for
her life, because she had previously prosecuted defendant. Over
the objection of defendant, Assistant District Attorney Jacqueline
Smith testified that she prosecuted defendant for three counts of
assault with a deadly weapon in which defendant used a knife to cut
a night club's bouncer who allowed four women to skip her in line,
and one of the women who was allowed into the club ahead of
defendant. As a result of the aforementioned case, defendant was
placed on probation, and a subsequent conviction in the pending
assault case would have resulted in revocation of probation and an
active prison sentence.
Judge Hardison further testified that he felt threatened for
his life by defendant's threats, due to his numerous encounters
with defendant and the fact that upon defendant's conviction of
assault in the pending case, her probation could have been revoked,
causing her to serve an active sentence. The State made a motion
to amend the bill of information to change the offense date from
September 25th to September 26th which was allowed by the judge.
Thereafter, the State again made a motion to amend the date to
September 29th which was further allowed by the judge. At the closeof the evidence, defendant made a motion to dismiss the charges and
such motion was denied by the trial judge.
The jury found defendant guilty of threatening Judge Paul
Hardison and Assistant District Attorney Jacquelyn Smith and
further found defendant guilty of intimidating a witness, Ms.
Williams. The trial judge thereafter determined defendant was a
prior record Level III offender for purposes of sentencing and
sentenced defendant to 8 to 10 months' imprisonment on the count of
intimidating a witness and two 6 to 8 months' suspended sentences
for the counts of threatening court officers, with defendant to be
placed on probation after the termination of her active sentence.
Defendant appeals.
Defendant contends on appeal the trial court erred in allowing
the State's motion to amend the date of the offense listed on the
information.
N.C. Gen. Stat. § 15A-923 provides that a defendant may waive
the requirement of a bill of indictment and in such cases the
pleading by the prosecution must be made in the form of an
information. N.C. Gen. Stat. § 15A-923(a) (2005). The statute
further states “[a]n information may be amended only with the
consent of the defendant” and that “[a] bill of indictment may not
be amended.” N.C. Gen. Stat. § 15A-923(d)-(e). In the context of
amending indictments, this Court has interpreted the word
“'amendment'” to mean “'any change in the indictment which would
substantially alter the charge set forth in the indictment.'” State
v. Campbell, 133 N.C. App. 531, 535, 515 S.E.2d 732, 735 (citationomitted), disc. review denied, 351 N.C. 111, 540 S.E.2d 370 (1999).
We find this meaning of “amendment” to likewise be applicable to
amendments of information.
An amendment to an indictment, or in this case an information,
relating to the date of the offense would not substantially alter
the charge set forth where time is not an essential element of the
crime and is therefore permissible. State v. Brinson, 337 N.C. 764,
767, 448 S.E.2d 822, 824 (1994). Further, a change will not
constitute an amendment where the variance was inadvertent and
defendant was neither misled nor surprised as to the nature of the
charges. State v. Bailey, 97 N.C. App. 472, 475, 389 S.E.2d 131,
133 (1990). A variance as to time does become material and of
essence when it deprives a defendant of an opportunity to
adequately present his defense. See State v. Kamtsiklis, 94 N.C.
App. 250, 255, 380 S.E.2d 400, 402, appeal dismissed, disc. review
denied, 325 N.C. 711, 388 S.E.2d 466 (1989). However, the record in
the instant case is devoid of any evidence of an alibi defense or
any other defense wherein time would be material. Moreover, it is
clear that defendant was neither misled nor surprised as to the
nature of the charges where the only change to the information was
the date on which the threats were made against the witness and the
officers of the court. There was ample evidence that the threats
occurred on several occasions and were specifically reported to the
Assistant District Attorney and Presiding Judge on 29 September
2005. We conclude that the change of date in this indictment was
not an amendment proscribed without the consent of defendant byN.C. Gen. Stat. § 15A-923(d). Accordingly, we overrule this
assignment of error.
Defendant further contends the trial court erred in allowing
the Assistant District Attorney to testify regarding her previous
prosecutions of defendant.
Rule 404(b) of the North Carolina Rules of Evidence states,
evidence of “other crimes, wrongs, or acts” is inadmissible to
prove the defendant acted in conformity with such actions, but it
may be admissible for other purposes such as such as “proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake, entrapment or accident.” N.C. Gen.
Stat. § 8C-1, Rule 404(b) (2005). Evidence of crimes for which
defendant was previously prosecuted by Ms. Smith, the sentence
resulting from such prosecution and the effect of the pending case
on the previous sentence, all tend to prove that defendant had a
motive to threaten the Assistant District Attorney.
It is important to note, even if the evidence were admitted in
error, such error was harmless. The record is replete with evidence
from the testimony of the witness, Ms. Williams, Ms. William's
daughter, Assistant District Attorney Jacqueline Smith, Judge
Hardison and Detective Muni that defendant attempted to deter Ms.
Williams from testifying against defendant on the pending assault
charge by threatening to kill Ms. Williams, the Assistant District
Attorney and the Presiding Judge. It cannot be said that exclusion
of evidence regarding previous prosecutions of defendant by the
Assistant District Attorney would have had any effect on theoutcome of the verdict. Therefore, this assignment of error is
overruled.
Next, defendant contends the trial court erred in denying her
motion to dismiss at the close of the evidence where there was
insufficient evidence to support the charges.
“When a defendant moves to dismiss a charge against him on the
ground of insufficiency of the evidence, the trial court must
determine 'whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.'” State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (citation omitted), cert. denied, 543
U.S. 1156, 161 L. Ed. 2d 122 (2005). “'Substantial evidence' is
relevant evidence that a reasonable person might accept as
adequate, or would consider necessary to support a particular
conclusion[.]” Id. (citations omitted). An inquiry into whether
there is substantial evidence “examines the sufficiency of the
evidence presented but not its weight” and the evidence must be
viewed in the light most favorable to the State with the State
being entitled to every reasonable inference in its favor. Id. at
412-13, 597 S.E.2d at 746.
N.C. Gen. Stat. § 14-16.7 defines the crime of threatening a
court officer as “knowingly and willfully mak[ing] any threat to
inflict serious bodily injury upon or to kill any . . . court
officer[.]” N.C. Gen. Stat. § 14-16.7(a) (2005).
Defendant argues that there was insufficient evidence that the
Presiding Judge or the Assistant District Attorney believeddefendant's threats, that the threats were conditional, and that
the only evidence of communication of a threat was through a third
party which is insufficient to support the charges.
There is no requirement within the plain language of the
statute that a court officer believe that defendant is actually
going to act upon the threat which a defendant makes. However, both
Assistant District Attorney Jacqueline Smith and Judge Hardison
testified that they believed defendant's threats and feared for
their lives. Therefore any contention that there was insufficient
evidence that either court officer lacked belief in defendant's
threats warranting dismissal of the charges is wholly without
merit.
Further, the ability to avoid a threatened consequence by
complying with a condition that a defendant had no right to impose
does not nullify the threat. State v. Roberson, 37 N.C. App. 714,
716-17, 247 S.E.2d 8, 10 (1978). Moreover, State v. Thompson, 157
N.C. App. 638, 580 S.E.2d 9 (2003), held that evidence of the
defendant's communicating threats against the victim to a third
person, who relayed the threats to the victim, was sufficient to
convict defendant of communicating threats since the utilization of
a third person to communicate the threats did not negate the
criminality of defendant's behavior.
The evidence is clear, defendant threatened to kill Assistant
District Attorney Jacqueline Smith and Judge Hardison if Ms.
Williams appeared to testify in court. Defendant's attempts to
argue insufficient evidence are meritless and wholly unsupported. Defendant further contends there was insufficient evidence
that Ms. Williams was scared of or believed the death threats made
against her, and therefore defendant's motion to dismiss was
erroneously denied. However, the plain language of the statute
setting forth the crime of intimidating or interfering with a
witness does not support such an argument.
N.C. Gen. Stat. § 14-226 states:
If any person shall by threats, menaces or in
any other manner intimidate or attempt to
intimidate any person who is summoned or
acting as a witness in any of the courts of
this State, or prevent or deter, or attempt to
prevent or deter any person summoned or acting
as such witness from attendance upon such
court, he shall be guilty of a Class H felony.
N.C. Gen. Stat. § 14-226(a) (2005). Belief of the threat made upon
the witness is not an element of the crime as listed in the statute
as it only requires that a defendant attempt to intimidate a
witness or attempt to prevent or deter the witness from testifying.
The evidence shows that defendant attempted to intimidate and deter
Ms. Williams from testifying by offering her money not to testify
and further by threatening to kill her, the Assistant District
Attorney, and the Presiding Judge. Therefore, the corresponding
assignments of error are overruled.
Finally, defendant contends the trial court erred in
sentencing defendant as a Level III offender without sufficient
proof of defendant's prior convictions.
In sentencing defendant, it appears that the State failed to
prove defendant's prior convictions by stipulation of the parties,an original or copy of the court record or prior conviction,
official record, or other reliable method as set forth in N.C. Gen.
Stat. § 15A-1340.14(f) (2005). The only evidence of the prior
convictions was a worksheet offered up by the State.
The State concedes in its brief on appeal that the prosecutor
failed to prove defendant's prior convictions and further concedes
that the case should be remanded to the trial court for
resentencing.
Accordingly, we find no prejudicial error in the substantive
trial but we remand for resentencing.
No prejudicial error in part and remanded for resentencing in
part.
Chief Judge MARTIN and Judge TYSON concur.
Report per Rule 30(e).
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