in the Court of Appeals 8 January 2018.
by defendant from judgment entered 20 February 2017 by Judge
Robert C. Ervin in Cleveland County No. 15 CRS 50052 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General M. Denise Stanford, for the State.
Bleyman for defendant-appellant.
appeal, we consider whether (1) the defendant's
indictment was fatally defective because it misspelled his
middle name and misidentified his race and date of birth; (2)
the State presented sufficient evidence of an agreement
between the defendant and another person to rob the victim in
order to support a conspiracy charge; and (3) the
defendant's right to due process was violated by the
compelled appearance of the mother of his child as a witness
for the prosecution. Dominic Rashaun Stroud
("Defendant") appeals from his convictions for
robbery with a dangerous weapon and conspiracy to commit
robbery with a dangerous weapon. After a thorough review of
the record and applicable law, we conclude that Defendant
received a fair trial free from error.
and Procedural Background
State presented evidence at trial tending to establish the
following facts: On 4 January 2015 at approximately 5:00
p.m., Terry Maddox, Jr. went to Optimist Park in Shelby,
North Carolina to meet a woman that he knew only though
Facebook as "Shay." Following his arrival at the
park, the two of them sat on benches in the picnic shelter
area, and Maddox prepared to smoke marijuana that the woman
had brought with her.
was suddenly struck on the head and fell to the ground. He
saw two masked men holding firearms. One of them held a
rifle, and the other possessed a handgun. One of the men told
Maddox to remove his shoes, and he did so. The men then took
his car keys, cell phone, and gold watch.
afternoon, Officer Donald Bivins of the Shelby Police
Department was dispatched to a house at 904 Hampton Street -
which was located approximately 100 yards from Optimist Park
- after dispatch received a call of "shots fired"
in the area of the park. Upon entering the house, Officer
Bivins and another officer observed a white male and a black
male in the living room. The officers also encountered a
black male sleeping in one bedroom and a white female lying
on the floor of another bedroom.
means of securing the house, the officers instructed the
occupants of the home to go into the living room. While in
the living room, Officer Bivins observed a bullet from a
rifle on the floor next to the couch. When he leaned down to
inspect the bullet, he discovered that a rifle was also
present underneath the couch. Officer Bivins further observed
a second bullet located between the cushions of a loveseat in
the living room. Behind the loveseat was a .9 millimeter
Glock handgun that was not loaded. Under a blanket in the
carport, Officer Bivins found a .45 caliber Glock handgun.
Matthew Dyer of the Shelby Police Department was also
dispatched to the Optimist Park area that evening. He
encountered Maddox, who informed Officer Dyer that he could
identify the persons who had robbed him. After coordinating
with the officers at 904 Hampton Street, Officer Dyer took
Maddox to the residence "for a show-up to identify the
suspects that robbed him." An officer stationed at the
home directed three persons to step outside the house, and
Maddox identified all three of the individuals as the persons
who had robbed him. The persons identified by Maddox were
Defendant, Abreanne LaShea Bowen (the mother of
Defendant's child), and Joey Raborn (a friend of
Defendant). All three were placed into custody and taken to
the Shelby Police Department for questioning.
thereafter, Bowen was interviewed by Detective Matt Styers of
the Shelby Police Department. During the interview, she
admitted that she was with Defendant at 904 Hampton Street
prior to contacting Maddox and arranging a meeting with him
at Optimist Park. She stated that she had set up the meeting
in order to retaliate against Maddox for having previously
robbed her cousin. Bowen told Detective Styers that she,
Defendant, and Raborn had all been present at Optimist Park
earlier that day. She further stated that when she saw
Defendant and Raborn approaching the bench where she and
Maddox were sitting she immediately ran back to the house at
904 Hampton Street.
also told Detective Styers that by the time Defendant and
Raborn returned to 904 Hampton Street from Optimist Park
"the police were already circling the block."
During his interview with Detective Styers, Defendant agreed
to Bowen's account of the events, stating:
"That's what happened. She said we did it for her
cousin, so that's what happened."
Lee Farris also investigated the incident. He examined the
picnic shelter area and found a small amount of marijuana, a
.45 caliber shell casing, and a damaged gold watch.
Farris subsequently executed a search warrant on the house
located at 904 Hampton Street. Inside the residence, he
discovered a piece of a gold watchband matching the damaged
watch he had found at Optimist Park.
was indicted by a grand jury on 12 January 2015 for robbery
with a dangerous weapon and conspiracy to commit robbery with
a dangerous weapon. A jury trial was held beginning on 16
February 2017 before the Honorable Robert C. Ervin in
Cleveland County Superior Court. At the close of the
State's evidence, Defendant moved to dismiss both
charges, and the trial court denied the motion. He renewed
his motion to dismiss at the close of all the evidence, which
was also denied.
February 2017, the jury found Defendant guilty of both
charges. The trial court sentenced Defendant to a term of 72
to 99 months imprisonment. Defendant gave oral notice of
Sufficiency of Indictment
first argument on appeal, Defendant contends that the trial
court lacked jurisdiction to enter judgment against him
because his indictment was fatally defective. He asserts that
because the indictment misspelled his middle name and
incorrectly identified his race and date of birth, it failed
to "clearly and positively identify [Defendant] as the
perpetrator of the charged offense."
did not challenge the sufficiency of the indictment at trial.
However, it is well-established that "when an indictment
is alleged to be facially invalid, thereby depriving the
trial court of its jurisdiction, it may be challenged at any
time, notwithstanding a defendant's failure to contest
its validity in the trial court." State v.
Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208 (citation
omitted), cert. denied, 534 U.S. 1046, 151 L.Ed.2d.
548 (2001). We review the sufficiency of an indictment de
novo. State v. Marshall, 188 N.C.App. 744, 748,
656 S.E.2d 709, 712 (citation omitted), disc. review
denied, 362 N.C. 368, 661 S.E.2d 890 (2008).
Court has held that "[a] valid bill of indictment is
essential to the jurisdiction of the Superior Court to try an
accused for a felony . . . ." State v. Moses,
154 N.C.App. 332, 334, 572 S.E.2d 223, 226 (2002) (citation
omitted). An indictment "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 of the same
offense." State v. Jones, 188 N.C.App. 562,
564, 655 S.E.2d 915, 917 (2008) (citation and quotation marks
present case, Defendant's middle name was incorrectly
spelled in the indictment as "Rashawn." His actual
middle name is "Rashaun." Our Supreme Court has
held that "[a]n indictment must clearly and positively
identify the person charged with the commission of the
offense." State v. Simpson, 302 N.C. 613, 616,
276 S.E.2d 361, 363 (1981) (citation omitted). "The name
of the defendant, or a sufficient description if his name is
unknown, must be alleged in the body of the indictment; and
the omission of his name, or a sufficient description if his
name is unknown, is a fatal and incurable defect."
Id. (citation omitted).
State v. Higgs, 270 N.C. 111, 153 S.E.2d 781 (1967),
our Supreme Court held that minor mistakes in the spelling of
a defendant's name in an indictment do not - without more
- render the indictment defective. Id. at 113, 153
S.E.2d at 782. In that case, the defendant's given name
was Burford Murril Higgs. However, the indictment listed his
name as Beauford Merrill Higgs. Id. In ruling that
the indictment was sufficient, the Supreme Court concluded as
On the trial, no point was made of the slight variance in the
given names of Beauford and Burford and of
the slight variance in the spelling of the middle name, and
defendant will not now be heard to say that he is not the man
named in the bill of indictment. Where defendant is tried
without objection under one name, and there is no question of
identity, he will not be allowed on appeal to contend that
his real name was different.
Id. (citation and quotation marks omitted); see
also State v. Vincent, 222 N.C. 543, 544, 23 S.E.2d 832,
833 (1943) ("Here, the two names, 'Vincent' and
'Vinson, ' sound almost alike. . . . He was tried
under the name of Vincent, without objection or challenge,
and sentenced under the same name. There being no question as
to his identity, he may retain the name for purposes of
judgment." (citation omitted)).
present case, the misspelling of Defendant's middle name
in the indictment differed by only one letter from the
correct spelling. As shown above, our appellate courts have
made clear that such minor spelling errors do not render an
indictment defective absent a showing that the defendant was
prejudiced by the error in preparing his defense. See
Higgs, 270 N.C. at 113, 153 S.E.2d at 782. Defendant has
made no such showing here.
addition to the misspelling of his middle name, the
indictment also contained two other mistakes. First, it
listed his race as white despite the fact that he is black.
Second, his date of birth was set out in the indictment as 31
August 1991 when, in fact, his correct birth date is 2
October 1991. Neither of these mistakes, however, caused
Defendant's indictment to be defective.
beyond the essential elements of the crime sought to be
charged are irrelevant and may be treated as
surplusage." State v. Taylor, 280 N.C. 273,
276, 185 S.E.2d 677, 680 (1972). This Court has held that
"a mistake in such information which is mere surplusage
may be ignored if its inclusion has not prejudiced
defendant." State v. Sisk, 123 N.C.App. 361,
366, 473 S.E.2d 348, ...