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STATE OF NORTH CAROLINA v.
JAMES EMANUEL SILAS
There is no requirement that an indictment for felonious breaking or entering
contain specific allegations of the intended felony. However, if an indictment does specifically
allege the intended felony, N.C.G.S. § 15A-923(e) mandates that such allegations may not be
amended. Here, an indictment for breaking or entering with intent to commit murder was orally
changed by the prosecutor at the end of all of the evidence to allege an intent to commit an
assault. The trial court gave the State a second bite of the apple when there was no further
opportunity for defendant to prepare or present contrary evidence.
On discretionary review pursuant to N.C.G.S. § 7A-31 of
a unanimous decision of the Court of Appeals, 168 N.C. App. 627,
609 S.E.2d 400 (2005), finding no error in part, arresting
judgment in part, and remanding for a new sentencing hearing
judgments entered 7 September 2000 by Judge Beverly T. Beal in
Superior Court, Mecklenburg County. Heard in the Supreme Court
13 February 2006.
Roy Cooper, Attorney General, by
William P. Hart,
Senior Deputy Attorney General, for the State-
Thomas K. Maher for defendant-appellee.
On 9 July 1999, defendant James Emanuel Silas became
angry with Rhonda Silas, his estranged wife from whom he had been
separated for approximately one month. Mrs. Silas had recently
obtained a domestic violence restraining order against defendant,
and defendant was upset about his wife's relationship with Jasper
Herriott. Defendant drove to Mrs. Silas's apartment and upon
arriving, forced open a latched door. When defendant entered the
kitchen, he found Mrs. Silas, her daughter, and Mrs. Silas's
niece present. Defendant and his wife exchanged words, whereupon
defendant pulled out a .380 semiautomatic handgun and shot Mrs.
Silas twice in the left thigh. Mrs. Silas escaped to an upstairs
bedroom, and defendant departed the crime scene, eventually
heading toward Herriott's apartment.
Upon arriving at Herriott's apartment building,
defendant observed Herriott standing in front of the doorway.
Defendant exited his vehicle and proceeded to fire his handgun
numerous times at Herriott. Herriott quickly returned to his
apartment, locked the door, and telephoned law enforcement.
Meanwhile, defendant continued to fire his weapon into Herriott's
On 2 August, 8 October, and 29 November 1999, the grand
jury of Mecklenburg County returned true bills of indictmentagainst defendant for: (1) assault of Rhonda Silas with a deadly
weapon with intent to kill and inflicting serious injury; (2)
assault of Jasper Herriott with a deadly weapon with intent to
kill; (3) discharging a weapon into property occupied by
Herriott; (4) possession of a firearm by a felon; and (5)
felonious breaking or entering a building occupied by Rhonda
At trial, the State presented evidence which tended to
show the above facts. Defendant testified on his own behalf and
asserted he was angry with Herriott and Mrs. Silas, but his
intent was to harm them, not kill them. During the charge
conference the assistant district attorney orally moved to amend
the felonious breaking or entering indictment to conform to the
evidence and the anticipated jury instructions, and the trial
court allowed the motion.
After instruction by the trial court,
the jury deliberated and returned verdicts of guilty on all
charges except for the assault of Rhonda Silas, for which the
jury returned a verdict of guilty on the lesser included offense
of assault with a deadly weapon inflicting serious injury. After
finding defendant had a prior record level of IV,
the trial court
sentenced defendant in the presumptive range to consecutive terms
of ten to twelve months, fifteen to eighteen months, and three
terms of forty to fifty-seven months
The Court of Appeals
found, inter alia, the manner in which the trial court determined
defendant's prior record level was error and unanimously remandedthe case to the trial court for resentencing. The State did not
seek review of this sentencing issue.
In enacting Chapter 15A of the General Statutes, the
Criminal Procedure Act, the General Assembly
provided that [a]
bill of indictment may not be amended. N.C.G.S. § 15A-923(e)
This Court has interpreted that provision to mean a bill
of indictment may not be amended in a manner that substantially
alters the charged offense. See State v. Snyder
, 343 N.C. 61,
65, 468 S.E.2d 221, 224 (1996). In determining whether an
amendment is a substantial alteration, we must consider the
multiple purposes served by indictments, the primary one being
'to enable the accused to prepare for trial.' State v. Hunt
357 N.C. 257, 267, 582 S.E.2d 593, 600 (quoting State v. Greer
238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953))
, cert. denied
U.S. 985 (2003)
; see also Apprendi v. New Jersey
, 530 U.S. 466,
478-79 (2000) (brief discussion of the historical use and
requirements of indictments).
Relying on State v. Vick
, 70 N.C. App. 338, 319 S.E.2d
327 (1984), the Court of Appeals
held the alteration todefendant's indictment for felonious breaking or entering was a
substantial alteration because an indictment for felonious
breaking or entering is insufficient unless it alleges the
particular felony which is the basis for the required element of
intent to commit any felony or larceny therein. N.C.G.S. § 14-
54(a) (2005). The State argues the Court of Appeals' reliance on
was misplaced and Vick
should be overruled consistent with
this Court's opinion in State v. Worsley
, 336 N.C. 268, 279-
81, 443 S.E.2d 68, 73-74 (1994).
The State's arguments at the appellate level have been
inconsistent. At the Court of Appeals, the State argued the
amendment was not a substantial alteration because assault with a
deadly weapon with intent to kill inflicting serious injury and
assault with a deadly weapon inflicting serious injury are both
lesser included offenses of the offense of first-degree murder.
The Court of Appeals rejected this argument, noting
our research has not revealed a case
specifically stating assault with a deadly
weapon with intent to kill inflicting serious
injury or assault with a deadly weapon
inflicting serious injury is a lesser
included offense of first degree murder. We
also note that the State has not cited any
authority stating assault with a deadly
weapon is a lesser included offense of first
, 168 N.C. App. at 634 n.1, 609 S.E.2d at 405 n.1. Before
issuance of the mandate at the Court of Appeals, the State
submitted additional authority to that court which casts doubt on
felonious breaking or entering indictments must allegethe intended felony. Now, the State has changed mounts in
midstream, abandoning its argument presented to the Court of
Appeals and instead arguing to this Court that Vick
overruled. Despite these inconsistent theories, we agree with
the State that Vick
is contrary to Worsley
and must be overruled.
the Court of Appeals relied on State v.
297 N.C. 388, 255 S.E.2d 366 (1979) and State v.
, 186 N.C. 302, 119 S.E. 504 (1923), in analogizing the
offense of felonious breaking or entering to the offense of
burglary. See Vick
, 70 N.C. App. at 339-40, 319 S.E.2d at 328.
, this Court noted indictments for burglary were
insufficient unless they alleged the underlying felony which was
intended to be committed within the dwelling by the defendant.
, 186 N.C. at 305-06, 119 S.E. at 505-06. However, as this
Court noted in Worsley
, all of this Court's opinions requiring
these specific allegations were decided prior to the enactment
of N.C.G.S. § 15A-924(a)(5) . . . and are no longer controlling
on this issue. 336 N.C. at 279, 443 S.E.2d at 73. This Court
continued by explaining the pleading requirements of the Criminal
Procedure Act are 'more liberal' than the 'ancient strict
pleading requirements of the common law.' Id.
at 280, 443
S.E.2d at 74 (quoting State v. Freeman
, 314 N.C. 432, 436, 333
S.E.2d 743, 746 (1985)). Therefore, this Court held in Worsley
an indictment for first-degree burglary was sufficient even
though it [did] not specify the felony the defendant intended tocommit when he entered [the] apartment. Id.
at 280, 443 S.E.2d
Because of the similarities between the elements and
nature of felonious breaking or entering and burglary, we hold an
indictment for felonious breaking or entering is not required to
allege with specificity the felony a defendant intended to commit
inside the building. It is sufficient for the indictment to
allege, along with the other required elements of breaking or
entering, that the defendant intended to commit a felony or
larceny inside the building. The State could have simply sought
in the original indictment allegations that defendant intended to
commit a felony or larceny inside the building. Alternatively,
the State could have sought a superseding indictment, after the
return of the original indictment by the grand jury but before
the commencement of the trial, which made only those general
allegations required. See
N.C.G.S. § 15A-646 (2005).
Accordingly, we overrule Vick
insofar as it is inconsistent with
our holding today.
This, however, does not end our analysis. The State
would have us reverse the Court of Appeals because the language
in the indictment describing the specific intended felony was
nothing more than surplusage; therefore, any amendment to this
surplusage is not a substantial alteration of the indictment. We
disagree. As noted earlier, the primary purpose of an indictment
is 'to enable the accused to prepare for trial.' Hunt
N.C. at 267, 582 S.E.2d at 600 (quoting Greer
, 238 N.C. at 327,77 S.E.2d at 919). When the prosecution amends an indictment for
felonious breaking or entering in such a manner that the
defendant can no longer rely upon the statement of the intended
felony in the indictment, such an amendment is a substantial
alteration and is prohibited by N.C.G.S. § 15A-923(e).
The State relies on State v. Freeman
in making the
argument the amendment was made to mere harmless surplusage
contained in the indictment and was therefore not a substantial
alteration. In Freeman
, this Court stated, [t]he additional
'[r]ape or [r]obbery' language in the indictment is mere harmless
surplusage and may properly be disregarded in passing upon its
validity. 314 N.C. at 436, 333 S.E.2d at 745-46. However, the
issue in Freeman
was the sufficiency of an indictment which
alleged alternative underlying felonies for first-degree
kidnapping. There was no allegation the defendant lacked notice
of the prosecution's theory in Freeman
, as the prosecution
proceeded on a theory that the kidnapping was for the purpose of
facilitating a rape and a robbery. See id.
at 433-34, 333 S.E.2d
at 744-45. This Court noted the surplusage in Freeman
harmless to the defendant, as he was informed of the charge and
if he needed further clarification, the remedy would have been to
request a bill of particulars. Id.
at 436-37, 333 S.E.2d at 745-
46 (citing N.C.G.S. § 15A-925).
In the case sub judice
, the indictment served as notice
to defendant apprising him of the State's theory of the offense.
The subsequent alteration prejudiced defendant as he relied uponthe allegations in the original indictment to his detriment in
preparing his case upon the assumption the prosecution would
proceed upon a theory defendant intended to commit murder. In
its brief, the State concedes its trial theory was clearly stated
in the original indictment: The State's theory and proof was
that defendant intended to kill, not assault . . . . Because
the indictment alleged defendant intended to commit murder after
breaking and entering into Mrs. Silas's residence, defendant
prepared his case and the theory of his defense, including his
decision to testify on his own behalf, to discredit the
allegation that he intended to kill Mrs. Silas. By doing so,
defendant could hope to be acquitted of the charges alleged in
the felonious breaking or entering indictment, or at least be
convicted of the lesser included offense of misdemeanor breaking
Defendant's preparation resulted in the jury being
unable to find beyond a reasonable doubt he intended to kill Mrs.
Silas, as evidenced by the jury returning a guilty verdict of
assault with a deadly weapon inflicting serious injury instead of
assault with a deadly weapon with intent to kill inflicting
serious injury. The trial court gave the State a second bite of
the apple by permitting the assistant district attorney to orally
amend the indictment after the close of all evidence, when there
was no further opportunity for defendant to prepare or present
contrary evidence. It is the State that draws up the indictment and crafts
its language before submitting the indictment to the grand jury.
If the State seeks an indictment which contains specific
allegations of the intended felony, the State may not later amend
the indictment to alter such allegations. Moreover, in felonious
breaking or entering cases, as in burglary cases, when the
indictment alleges an intent to commit a particular felony, the
State must prove the particular felonious intent alleged. See
State v. Wilkinson
, 344 N.C. 198, 222, 474 S.E.2d 375, 388
(1996). Because the State sought to indict defendant for
felonious breaking or entering based upon a theory of intended
murder, the State was required to prove defendant intended to
commit murder upon breaking or entering Mrs. Silas's apartment;
therefore, the amendment to the original indictment was a
This amendment prejudiced defendant as to the one
element of felony breaking or entering that differs from
misdemeanor breaking or entering: The intent to commit any
felony or larceny therein. N.C.G.S. § 14-54(a). Nonetheless,
there is no question the indictment properly charged defendant
with misdemeanor breaking or entering. Therefore, the Court of
Appeals' remedy was proper, and upon remand to the trial court
judgment should be entered on misdemeanor breaking or entering.
In sum, we hold: (1) There is no requirement that an
indictment for felonious breaking or entering contain specific
allegations of the intended felony; only a general averment thatdefendant intended to commit a felony upon breaking or entering
is required. We therefore overrule State v. Vick
insofar as it
is inconsistent with this opinion. (2) However, if an indictment
does specifically allege the intended felony, N.C.G.S. § 15A-
mandates such allegations may not be amended.
Because the amendment to the indictment was a
substantial alteration which prejudiced defendant, we modify and
affirm the opinion of the Court of Appeals.
MODIFIED AND AFFIRMED.
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