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State v. Simmons

Court of Appeals of North Carolina

November 7, 2017

STATE OF NORTH CAROLINA
v.
STACY ALLEN SIMMONS

          Heard in the Court of Appeals 19 September 2017.

         Appeal by defendant from judgments entered 14 July 2016 by Judge Robert C. Ervin in Mecklenburg County, Nos. 14 CRS 246563, 246566-67 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Thomas O. Lawton III, for the State.

          W. Michael Spivey for defendant-appellant.

          DAVIS, Judge.

         The issue in this case is whether the trial court erred by allowing the State at the beginning of trial to amend the indictment charging the defendant with trafficking in heroin and instead charge him with trafficking in opiates. Stacy Allen Simmons ("Defendant") appeals from his convictions for possession of marijuana, possession of cocaine, trafficking in opiates by transportation, and trafficking in opiates by possession. Because we conclude that the State's actions constituted a substantial alteration of the indictment that is not permitted under our law, we vacate Defendant's convictions for trafficking in opiates by transportation and by possession.

         Factual and Procedural Background

         The State presented evidence at trial tending to establish the following facts: On 26 November 2014, Officer Adam Thompson, along with five other officers of the Charlotte-Mecklenburg Police Department, was patrolling the area of the Greenleafe Inn in Charlotte, North Carolina. The Greenleafe Inn was known to the officers as a "crime hotspot" where drug-related arrests had been made in the past.

         In the parking lot, Officer Thompson observed a man sitting in the passenger seat of a white utility van with its engine and lights turned off. He suspected the man may have been waiting to buy or sell drugs. Officer Thompson approached the van, and the occupant of the vehicle stated that his name was John Turner. After Officer Scottie Carson noticed a crossbow on the floor of the vehicle, Officer Thompson asked Turner to exit the van. As he did so, Turner wiped a white substance from his pants that Officer Thompson suspected was cocaine.

         The officers searched Turner and the vehicle and found a plastic wrapper containing heroin residue in his pocket. They also discovered inside the van 32 syringes, 0.5 grams of heroin, and a spoon containing heroin residue. Turner told the officers he was a heroin addict and was waiting on his dealer to arrive. He identified Defendant as his heroin dealer and said that Defendant would be driving either a black Lexus or a silver Kia minivan. Turner further informed the officers that they would find heroin in a "Hide-A-Key" box under the hood of Defendant's vehicle.

         Officer Thompson then waited with Turner in his motel room for Defendant to arrive. Eventually, a silver Kia minivan drove into the parking lot and parked across from Turner's room. Defendant exited the vehicle with a young child in his arms and approached Turner's room. Officer Thompson opened the door as Defendant prepared to knock, and Defendant immediately turned and began walking away. Officer Thompson ordered him to stop, and Defendant complied. Officer Thompson proceeded to search Defendant but did not find any contraband. Officers Thompson and Carson then asked Defendant if there was any heroin concealed on the child. After an initial denial, Defendant admitted having placed a packet of heroin in the child's pants.

         Defendant was arrested, and Officers Todd Zielinski and Jonathan Brito conducted a search of the Kia. On the passenger side of the vehicle, they found two digital scales, a partially smoked marijuana "blunt, " and $800 in cash. Under the hood was a black "Hide-A-Key" box containing "balloons" of heroin as well as a pill bottle containing marijuana, crack cocaine, and 17 hydrocodone pills. The officers also found a revolver wrapped in a sock under the hood. Testing conducted by a forensic chemist revealed that the hydrocodone weighed 4.62 grams, the heroin recovered from the child's pants weighed 0.84 grams, and the heroin found under the hood of the Kia weighed 3.77 grams.

         On 8 December 2014, Defendant was indicted by a grand jury on charges of misdemeanor child abuse, possession of a firearm by a felon, possession of marijuana, possession with intent to sell or deliver ("PWISD") cocaine, PWISD heroin, trafficking in heroin by transportation, trafficking in heroin by possession, possession of drug paraphernalia, maintaining a vehicle or dwelling for the purpose of using controlled substances, and possession of a Schedule III controlled substance. On 5 July 2016, a hearing was held before the Honorable Robert C. Ervin in Mecklenburg County Superior Court to address various pre-trial matters. At the hearing, the State announced that it was dismissing five of the charges. As a result, the charges remaining against Defendant were possession of a firearm by a felon, possession of marijuana, PWISD cocaine, trafficking in heroin by transportation, and trafficking in heroin by possession.

         At that point in the proceedings, Defendant's counsel informed the court that Defendant "intend[ed] to admit to the heroin that was found in the pants leg of the ...


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