in the Court of Appeals 14 February 2019
by defendant from judgments entered 24 October 2017 by Judge
Stanley L. Allen in McDowell County Nos. 16 CRS 50513-14
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.
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
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.
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.
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.
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.
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
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.