Opinion
No. COA11–1422.
2012-05-15
STATE of North Carolina v. Leroy HOUGH.
Attorney General Roy Cooper, by Assistant Attorney General Ward Zimmerman, for the State. Don Willey for defendant-appellant.
Appeal by defendant from judgment entered 4 May 2011 by Judge V. Bradford Long in Montgomery County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Ward Zimmerman, for the State. Don Willey for defendant-appellant.
STEELMAN, Judge.
Where the amendment of the summons did not change the nature of the offense, the trial court properly allowed the amendment.
I. Factual and Procedural History
On the morning of 26 March 2004, George Sheppard was working at Southern Correctional Center in Troy, North Carolina. Leroy Hough (defendant) was an inmate. Defendant asked Sheppard to enter the supply room and unlock a box that contained the coffee pot. Sheppard did so, and after finding that the box was empty, he turned around to find defendant standing behind him holding a plastic container. Defendant threw the contents of the container, a hot liquid, in Sheppard's face. Sheppard removed his glasses and tried to clear his eyes of the liquid. He then felt something hit him in the face and felt blood run down the side of his face. Sheppard took out his pepper spray and defendant ran away. Defendant ran into another correctional officer, who handcuffed defendant.
A summons was issued charging defendant with assault on a government official. The summons alleged that defendant assaulted Sheppard
by THROWING A PLASTIC CONTAINER OF A[N] UNKNOWN HOT LIQUID IN HIS FACE AND STRIKING HIM WITH A[N] UNKNOWN OBJECT ON THE LEFT SIDE OF HIS FACE CUTTING HIM ABOVE HIS LEFT EYE AND THE BRIDGE OF HIS NOSE.[ ] At the time of the offense the officer was discharging the following duty of that employment: CORRECTION OFFICER.
Defendant's case was tried at the 2 May 2011 Criminal Session of Montgomery County Superior Court. Following presentation of the evidence, the trial court noted that there was a problem with the summons, namely, that the summons listed Sheppard's job title rather than his duties, and thus the summons failed to allege one of the essential elements of the offense. The State moved to amend the summons to state that Sheppard was “discharging a duty of his office by supervising the inmates[.]” The trial court allowed the amendment. Defendant was found guilty as charged and sentenced to 150 days imprisonment.
Defendant appeals.
II. Amendment of Summons
In his only argument on appeal, defendant argues that the trial court erred by allowing the State's motion to amend the summons and lacked subject matter jurisdiction. We disagree.
To obtain a conviction for assault on a government official, the State must allege and prove an assault on a government official “when the officer or employee is discharging or attempting to discharge his official duties [.]” N.C. Gen.Stat. § 14–33(c)(4) (2011). The original summons failed to state that Sheppard was performing his duties as a correctional officer when he was assaulted by defendant. The State moved to amend the summons to allege that Sheppard was “supervising the inmates” when the assault occurred.
Pursuant to N.C. Gen.Stat. § 15A–922(f), “[a] statement of charges, criminal summons, warrant for arrest, citation, or magistrate's order may be amended at any time prior to or after final judgment when the amendment does not change the nature of the offense charged.” N.C. Gen.Stat. § 15A–922(f) (2011). This statute “conforms to the long-held principle in this State that an amendment to a warrant under which a defendant is charged is permissible as long as the amended warrant does not charge the defendant with a different offense.” State v. Clements, 51 N.C.App. 113, 116, 275 S.E.2d 222, 225 (1981).
We hold that the trial court's amendment of the criminal summons was proper because it did not change the nature of the offense. See State v. Reeves, 62 N.C.App. 219, 224, 302 S.E.2d 658, 661 (1983) (“Amending the arrest warrant at trial to change the owner of the property taken does not change the nature of the offense charged. After the amendment, defendant was tried for the same offense that is alleged in the warrant.”). See alsoN.C. Gen.Stat. § 15A–303(b) (2011) (“No criminal summons is invalid because of any technicality of pleading if the statement is sufficient to identify the crime or infraction.”); State v. Coker, 312 N.C. 432, 434, 323 S.E.2d 343, 346 (1984) (“An indictment or criminal charge is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.”).
NO ERROR. Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).