in the Court of Appeals 19 September 2017.
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.
Michael Spivey for defendant-appellant.
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.
and Procedural Background
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.
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.
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.
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.
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
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.
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 ...