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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1402


Filed: 17 July 2007


     v .                              Onslow County
                                      No. 05 CRS 58847

    Appeal by defendant from judgments entered 12 April 2006 by Judge Russell J. Lanier, Jr., in Onslow County Superior Court. Heard in the Court of Appeals 4 June 2007.

    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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