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State v. Capps

Court of Appeals of North Carolina

May 21, 2019

STATE OF NORTH CAROLINA
v.
BEN LEE CAPPS

          Heard in the Court of Appeals 14 February 2019

          Appeal by defendant from judgments entered 24 October 2017 by Judge Stanley L. Allen in McDowell County Nos. 16 CRS 50513-14 Superior Court.

          Attorney General Joshua H. Stein, by Associate Attorney General Vinston Walton, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant.

          ZACHARY, JUDGE.

         Ben Lee Capps ("Defendant") appeals from judgments entered upon jury verdicts finding him guilty of misdemeanor larceny, injury to personal property, and reckless driving to endanger. However, the trial court lacked jurisdiction to try Defendant on offenses alleged in the misdemeanor statement of charges. Thus, we vacate the judgment stemming from the charges alleged in the misdemeanor statement of charges and remand to the trial court to resentence Defendant for his remaining conviction.

         I. Background

         On 19 April 2016, a McDowell County magistrate issued arrest warrants charging Defendant with misdemeanor larceny and injury to personal property in file number 16 CRS 50513 and reckless driving to endanger in 16 CRS 50514. Defendant pleaded guilty to the charges in district court on 24 August 2016. He was sentenced to time served and ordered to pay restitution of $25.00 to Love's Truck Stop. On 2 September 2016, Defendant filed notice of appeal to superior court for a trial de novo pursuant to N.C. Gen. Stat. § 15A-1431.

         Defendant was tried in superior court on 23 October 2017 before the Honorable Stanley L. Allen. Prior to jury selection, the prosecutor moved to amend the charges in 16 CRS 50513 with a misdemeanor statement of charges, as follows:

THE COURT: The State has a motion to amend.
[PROSECUTOR]: Yes, sir. I have drafted it on a misdemeanor statement of charges. The history of this case briefly is that this was a misdemeanor which was pled guilty to in [district] court based on the charging language, and it was a time-served judgment, and so it was not scrutinized closely. The charging language alleges that the personal property and the property stolen in the larceny are the property-Love's Truck Stop. I am moving to amend the owner of that property to Love's Travel Stop & Country Stores, Incorporated. May I approach?
THE COURT: Yes, sir. What says the defendant?
[DEFENSE COUNSEL]: No objection, Your Honor.

         The trial court granted the State's motion and a misdemeanor statement of charges was signed and entered that day. The arrest warrant identified the owner of the stolen property as "Loves Truck Stop," while the misdemeanor statement of charges identified the owner as "Love's Travel Stops & Country Stores, Inc." In 16 CRS 50513, the State proceeded upon the statement of charges signed by the prosecutor, rather than the arrest warrant upon which Defendant was convicted in district court and from which he appealed to superior court.

         At trial, the State presented evidence that Defendant drove to Love's Truck Stop on 19 April 2016 and stopped his vehicle at the store's air pump. While arguing loudly with a passenger, Defendant exited his vehicle and attempted to put air in the rear tire. He then began swinging the air hose at the passenger-side window and telling the passenger "to be quiet." Defendant then cut off the end of the air hose, dragged the passenger from the vehicle, attempted to strike her with the severed hose, and placed the section of hose inside of his car.

         Deputy Donald Cline, an off-duty member of the Swain County Sheriff's Office, was at the truck stop refueling his vehicle, and he walked toward the disturbance. As Defendant began to berate an attendant, Deputy Cline approached Defendant, displayed his badge, and lifted his shirt to reveal his service weapon. With his passenger lying on the ground, Defendant reentered his vehicle and drove around the store at a high speed while "burning" his tires, leaving a continuous tread mark on the pavement. Defendant then drove through an intersection, where he narrowly passed between a tractor-trailer and a stopped car, ran a red light, and headed "up the interstate at a high rate of speed."

         The jury found Defendant guilty of all charges. The trial court sentenced Defendant to 120 days in the custody of the North Carolina Division of Adult Correction for misdemeanor larceny and ordered him to pay $25.00 in restitution, together with $1, 170.00 in court-appointed counsel fees. The court consolidated the reckless driving and injury to personal property convictions for judgment and imposed a 45-day sentence to run consecutively with Defendant's larceny sentence. Defendant gave notice of appeal in open court.

         II. ...


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