             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-386

                                Filed: 21 May 2019

McDowell County, Nos. 16 CRS 50513-14

STATE OF NORTH CAROLINA

            v.

BEN LEE CAPPS


      Appeal by defendant from judgments entered 24 October 2017 by Judge

Stanley L. Allen in McDowell County Superior Court. Heard in the Court of Appeals

14 February 2019.


      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.
                                      STATE V. CAPPS

                                     Opinion of the Court



                                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.




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                                   Opinion of the Court



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



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                                   Opinion of the Court



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.      Discussion

      On appeal, Defendant contends that the superior court lacked jurisdiction to

try him for misdemeanor larceny and injury to personal property because the State

proceeded upon an untimely misdemeanor statement of charges in 16 CRS 50513

rather than the arrest warrant upon which Defendant was convicted in district court.

We agree.

      A trial court’s subject matter jurisdiction is a question of law reviewed de novo

on appeal. State v. Herman, 221 N.C. App. 204, 209, 726 S.E.2d 863, 866 (2012). A

misdemeanor statement of charges is one of several charging instruments that may

serve as a pleading in North Carolina. N.C. Gen. Stat. § 15A-921(5) (2017). Typically,



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                                   Opinion of the Court



a “citation, criminal summons, warrant for arrest, or magistrate’s order serves as the

pleading of the State for a misdemeanor prosecuted in the district court, unless the

prosecutor files a statement of charges[.]” Id. § 15A-922(a). “A statement of charges

is a criminal pleading which charges a misdemeanor.” Id. § 15A-922(b)(1). “When a

statement of charges is filed it supersedes all previous pleadings of the State and

constitutes the pleading of the State.” Id. § 15A-922(a).

      The timing of arraignment in district court is determinative as to how, when,

and for what reason a prosecutor can file a statement of charges. “The prosecutor

may file a statement of charges upon his own determination at any time prior to

arraignment in the district court.”     Id. § 15A-922(d) (emphasis added).       “After

arraignment, the State may only file a statement of charges when the defendant (1)

objects to the sufficiency of the criminal summons and (2) the trial court rules that

the pleading is in fact insufficient.” State v. Wall, 235 N.C. App. 196, 199, 760 S.E.2d

386, 388 (2014) (citing N.C. Gen. Stat. § 15A-922(e)). If the trial court allows the

State to file a statement of charges at or after arraignment, the new statement of

charges “may not change the nature of the offense.” N.C. Gen. Stat. § 15A-922(e). “A

statement of charges, criminal summons, warrant for arrest, citation, or magistrate’s

order may be amended at any time prior to or after final judgment when the

amendment does not change the nature of the offense charged.” Id. § 15A-922(f).




                                          -5-
                                   STATE V. CAPPS

                                  Opinion of the Court



      Although N.C. Gen. Stat. § 15A-922(f) permits a misdemeanor charging

instrument to be amended at any time, a charging instrument may be amended by a

misdemeanor statement of charges only under limited circumstances. In Wall, the

defendant was charged by magistrate’s order with resisting a public officer and giving

false information to a public officer. Wall, 235 N.C. App. at 198, 760 S.E.2d at 387.

Following his conviction in district court, the defendant appealed to superior court

for a trial de novo. Id. The State filed a misdemeanor statement of charges in

superior court on which the defendant was tried and found guilty. Id. This Court

vacated the judgment, holding that the superior court “lacked legal authority and,

therefore, was without subject matter jurisdiction to try [the] defendant on the

offense alleged in the misdemeanor statement of charges.” Id. at 197, 760 S.E.2d at

386. We explained:

             While subsection (f) allows the charging instrument to be
             amended prior to or after a final judgment is entered, this
             does not grant the State authority to change the form of the
             charging instrument; i.e., the State cannot “amend” a
             magistrate’s order by filing a misdemeanor statement of
             charges. Doing so would change the nature of the original
             pleading entirely. Accordingly, the State has a limited
             window in which it may file a statement of charges on its
             own accord, and that is prior to arraignment.

Id. at 199, 760 S.E.2d at 388 (emphasis added).

      Just as the magistrate’s order in Wall could not be “amended” by filing a

misdemeanor statement of charges, here, the arrest warrant could not be “amended”

by filing a misdemeanor statement of charges, unless either (1) the prosecutor filed

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                                   Opinion of the Court



the statement of charges prior to Defendant’s arraignment in district court, N.C. Gen.

Stat. § 15A-922(d); or (2) Defendant objected to the warrant’s sufficiency as a

pleading, and the trial court agreed that the warrant was insufficient. Id. § 15A-

922(e). Neither of these exceptions apply in the present case. The statement of

charges was untimely and therefore unauthorized. Wall, 235 N.C. App. at 200, 760

S.E.2d at 388. “Thus, the superior court had no jurisdiction to try [D]efendant for the

new offense alleged in the statement of charges.” Id.; see also State v. Killian, 61 N.C.

App. 155, 157-58, 300 S.E.2d 257, 259 (1983) (vacating judgment because the State

filed a misdemeanor statement of charges alleging a separate statutory violation than

that charged by the warrant, but reasoning that even if the statement of charges had

alleged the same offense, “it would have been untimely and thereby without legal

authorization”).

      In the instant case, the State could have amended the warrant “at any time

prior to or after final judgment [so long as] the amendment d[id] not change the

nature of the offense charged.”      N.C. Gen. Stat. § 15A-922(f); see also State v.

Clements, 51 N.C. App. 113, 115-17, 275 S.E.2d 222, 224-25 (1981) (allowing the State

to amend the arrest warrant at the close of the State’s evidence because the

amendment did not change the nature of the charged offense). However, this Court’s

holding in Wall, applying the plain language of N.C. Gen. Stat. § 15A-922, dictates

that the State may not amend a charging instrument in superior court by filing a



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                                   Opinion of the Court



misdemeanor statement of charges unless the defendant objects to the sufficiency of

the charging instrument and the trial court rules that the pleading is in fact

insufficient.   Wall, 235 N.C. App. at 199, 760 S.E.2d at 388.          The only fact

distinguishing this case from Wall is the nature of the original charging instrument.

The defendant in Wall was charged upon a magistrate’s order, id. at 198, 760 S.E.2d

at 387, whereas here, Defendant was charged upon an arrest warrant. In neither

instance did the defendant object to the sufficiency of the charging instrument. Id.

at 200, 760 S.E.2d at 388. Nor is it of any consequence that Defendant failed to object

to the statement of charges before the superior court. “Subject matter jurisdiction

cannot be conferred upon a court by consent, waiver or estoppel, and failure

to . . . object to the jurisdiction is immaterial.” State v. Collins, 245 N.C. App. 478,

485, 783 S.E.2d 9, 14 (2016).

       The State argues in this case that “the prosecutor did not file a statement of

charges on his own accord at superior court . . . . [but] moved to amend the original

warrant, and the statement of charges was entered as an amendment to the warrant.”

That argument contradicts the statute and this Court’s holding in Wall. The plain

language of the statute clearly provides that “[w]hen a statement of charges is filed

it supersedes all previous pleadings of the State and constitutes the pleading of the

State.” N.C. Gen. Stat. § 15A-922(a). Wall explains that although section 15A-922(f)

permits the State to amend the charging instrument before or after final judgment is



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                                   Opinion of the Court



entered, “this does not grant the State authority to change the form of the charging

instrument; i.e., the State cannot ‘amend’ a[n] [arrest warrant] by filing a

misdemeanor statement of charges. Doing so would change the nature of the original

pleading entirely.” Wall, 235 N.C. App. at 199, 760 S.E.2d at 388 (emphasis added).

      In the instant case, the State informed the trial court that it had “a motion to

amend [the arrest warrant]” that was “drafted . . . on a misdemeanor statement of

charges.” While the State may assert that it merely intended to amend the arrest

warrant, the newly filed misdemeanor statement of charges superseded the arrest

warrant and became the pleading of the State. See N.C. Gen. Stat. § 15A-922(a). This

Court’s case law does not allow the State, after arraignment in district court, to

amend one charging instrument by filing a different type of charging instrument;

indeed, it forbids it. Wall, 235 N.C. App. at 199, 760 S.E.2d at 388. This Court is

bound by that precedent. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379

S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same

issue, albeit in a different case, a subsequent panel of the same court is bound by that

precedent, unless it has been overturned by a higher court.”). Additionally, this Court

is “an error-correcting body, not a policy-making or law-making one. We lack the

authority to change the law . . . .” Fagundes v. Ammons Dev. Grp., Inc., 251 N.C. App.

735, 739, 796 S.E.2d 529, 533 (citation omitted), disc. review denied, 370 N.C. 66, 803

S.E.2d 626 (2017).



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                                   STATE V. CAPPS

                                  Opinion of the Court



      In that the State filed an untimely and unauthorized misdemeanor statement

of charges, the trial court was without subject matter jurisdiction to try Defendant

on the charges therein. Therefore, the judgment entered on those charges is void and

must be vacated.

                                 III.   Conclusion

      In that the prosecutor proceeded on an untimely misdemeanor statement of

charges in 16 CRS 50153, the trial court lacked jurisdiction to try Defendant on the

charges listed.    Accordingly, we vacate Defendant’s convictions for misdemeanor

larceny and injury to personal property.          We remand the case for the court to

resentence Defendant on his conviction for reckless driving to endanger in 16 CRS

50154.

      VACATED IN PART; REMANDED FOR RESENTENCING IN PART.

      Judge HAMPSON concurs.

      Judge BERGER dissents in separate opinion.




                                         - 10 -
 No. COA18-386 – State v. Capps


        BERGER, Judge, dissenting in separate opinion.


        The majority relies on State v. Wall, 235 N.C. App. 196, 760 S.E.2d 386 (2014)

in reaching its decision.        However, the majority has failed to discuss the plain

language of N.C. Gen. Stat. § 15A-922(d) and Wall regarding the meaning of the

phrase “upon [the prosecutor’s] determination.” Moreover, the majority and Wall

incorrectly conclude that the State is prohibited from using a misdemeanor statement

of charges to change the nature of the original pleading. Therefore, I respectfully

dissent.1

        “A statement of charges is a criminal pleading which charges a misdemeanor.”

N.C. Gen. Stat. § 15A-922 (b)(1) (2017); see also N.C. Gen. Stat. § 15A-921 (2017).

Criminal pleadings must comply with the relevant requirements of N.C. Gen. Stat.

§ 15A-924. In addition, Section 15A-922 imposes as a jurisdictional requirement that

a misdemeanor statement of charges “must be signed by the prosecutor who files it.”

N.C. Gen. Stat. § 15A-922 (b)(1).

        Defendant does not argue that the misdemeanor statement of charges here

fails in any way under Section 15A-924, or that the pleading was not signed by the




        1 This panel is bound by State v. Wall pursuant to In re Civil Penalty, 324 N.C. 373, 384, 379
S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by that precedent . . . .”). “Our panel is
following [Wall], as we should. However, I write separately to dissent because” the majority and a
portion of Wall are incorrect. Watson v. Joyner-Watson, ___ N.C. App. ___, ___, 823 S.E.2d 122, 126,
(2018) Dillon, J., dissenting.
                                    STATE V. CAPPS

                                  BERGER, J., dissenting



prosecutor. Instead, Defendant argues for the first time on appeal that the filing of

the misdemeanor statement of charges post-district court arraignment caused the

superior court to be divested of jurisdiction.

      Section 15A-922 states that a “prosecutor may file a statement of charges upon

his own determination at any time prior to arraignment in the district court. It may

charge the same offenses as the . . . warrant . . . or additional or different offenses.”

N.C. Gen. Stat. § 15A-922(d) (2017) (emphasis added). This section does in fact

impose a limitation on the timing of a prosecutor’s filing of a misdemeanor statement

of charges when filed “upon his own determination.” Id.

      Section 15A-922(e) allows a defendant to file a motion objecting to the

sufficiency of certain criminal pleadings. The motion may be filed in district court or

upon trial de novo in superior court. If the trial court determines such pleadings are

“insufficient, the prosecutor may file a statement of charges, but a statement of

charges . . . may not change the nature of the offense.” N.C. Gen. Stat. § 15A-922(e)

(2017). Defendant here filed no such motion.

      The majority and Wall, contend that “[a]fter arraignment, the State may only

file a statement of charges when the defendant (1) objects to the sufficiency of the

criminal summons and (2) the trial court rules that the pleading is in fact

insufficient.” Wall, 235 N.C. App. at 199, 760 S.E.2d at 388 (citation omitted). The

majority here goes further in limiting the State’s use of misdemeanor statements of



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                                    STATE V. CAPPS

                                 BERGER, J., dissenting



charges by contending that “[t]he timing of arraignment in district court is

determinative as to how, when, and for what reason a prosecutor can file a statement

of charges.” This is correct only for statements of charges filed by a prosecutor “upon

his own determination” or when a defendant files a motion contesting an insufficient

criminal pleading. However, these limitations are not as sweeping as the majority or

Wall contend.

      In State v. Killian, 61 N.C. App. 155, 300 S.E.2d 257 (1983), the defendant was

charged by warrant with a misdemeanor offense and convicted in district court. The

defendant appealed his conviction. When the case came on for trial de novo in

superior court, “the District Attorney issued a misdemeanor statement of charges.”

Id. at 156, 300 S.E.2d at 258 (1983) (quotation marks omitted). There was no motion

by the defendant in the record objecting to the original warrant pursuant to Section

15A-922(e), and no indication that the parties had agreed to the filing of the

misdemeanor statement of charges. Id. at 157, 300 S.E.2d at 259. This Court

reversed the defendant’s conviction because the misdemeanor statement of charges

filed by the prosecutor alleged a different offense than that alleged in the original

warrant. The Court also stated that even if the statement of charges alleged the same

charge as the original warrant, the new pleading would have been untimely because

“[t]he statement of charges was filed by the prosecutor ‘upon his own determination’;

and that could only be done ‘prior to arraignment in the district court,’ not upon trial



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                                   STATE V. CAPPS

                                 BERGER, J., dissenting



de novo on appeal to superior court . . . .” Id. at 157, 300 S.E.2d at 259 (emphasis

added).

      Similarly, in State v. Wall, the defendant was tried and convicted for a

misdemeanor in district court. The State filed a misdemeanor statement of charges

after the case was appealed for trial de novo in superior court. This Court noted that

“the State has a limited window in which it may file a statement of charges on its own

accord, and that is prior to arraignment.” Wall, 235 N.C. App. at 199, 760 S.E.2d at

388 (emphasis added).

      Both Killian and Wall recognize that Section 922(d) imposes a procedural

limitation on the filing of a statement of charges on the prosecutor’s own

determination or accord.      The prosecutor has discretion to file a misdemeanor

statement of charges on his own accord at any time prior to arraignment in district

court. A statement of charges filed at this time can correct a prior criminal pleading

or may charge new offenses.

      However, neither the statute nor Wall or Killian, preclude a prosecutor’s post-

district court arraignment use of statements of charges when the prosecutor and the

parties agree. Here, there is no question that the statement of charges was filed post-

district court arraignment. The relevant inquiry then is whether or not the statement

of charges was filed on the prosecutor’s own determination.




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                                   STATE V. CAPPS

                                BERGER, J., dissenting



      The State made an oral motion to amend the warrant in superior court using

a misdemeanor statement of charges. Not only was the State’s request to use a

statement of charges to correct a perceived defect in the warrant consented to by

Defendant, it was allowed by the trial court as set forth in the following exchange:

             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.

Based upon this exchange between the parties and the court, the statement of charges

was not filed upon the prosecutor’s own determination or accord, and thus, not subject

to the procedural limitation in Section 15A-922(d).        Rather, the misdemeanor

statement of charges was a new pleading filed with consent of all parties and

permission of the Court because “there [was] some problem with the original process

as a pleading,” N.C. Gen. Stat. ch. 15A, art. 49 official commentary (2015). The

majority has declined to discuss the wording of the statute, or the intent of the

Legislature as set forth in the Official Commentary.


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                                BERGER, J., dissenting



      Therefore, because the statement of charges was not filed upon the prosecutor’s

own determination, the criminal pleading only had to meet the requirements set forth

in Section 15A-924 and be signed by the prosecutor to satisfy jurisdictional concerns.

Again, Defendant did not take issue with the sufficiency of the criminal pleading.

      In addition, the majority and Wall incorrectly state that a misdemeanor

statement of charges may not be filed when it “change[s] the form of the charging

instrument, i.e., the State cannot ‘amend’ a magistrate’s order by filing a

misdemeanor statement of charges.” Wall, 235 N.C. App. at 199, 760 S.E.2d at 388.

The majority and Wall incorrectly view the filing of a statement of charges as an

amendment to a criminal pleading when it is not. A statement of charges is a new

criminal pleading, not an amendment to a prior criminal pleading.

      The Official Commentary to Article 49 notes that

             The “statement of charges” is new. Being able to use the
             warrant as the pleading has worked well in this State, and
             saved much solicitorial manpower as compared to
             jurisdictions which require the drafting of a new
             misdemeanor pleading in each instance. It was felt that
             there is some loss in trying to “amend” the warrant, and
             sometimes issue a new warrant, when what is desired is a
             correct statement of the charges--a proper pleading. . . .
             [T]he “statement of charges” is created, as a new pleading,
             to be used when there is some problem with the original
             process as a pleading. As such it takes the place of
             amending the warrant (or amending other process which
             may also be used as the pleading). When filed prior to
             arraignment, it also may charge additional crimes. That
             simple idea requires some complexity for statement in
             statutory form, but that is the underlying idea in § 15A-922.


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                                 BERGER, J., dissenting



               It should be relatively easy to prepare a statement of
               charges; a form should be sufficient in many cases.

N.C. Gen. Stat. ch. 15A, art. 49 official commentary. (emphasis added). When read

together, Section 15A-922 and the Official Commentary make it clear that a

misdemeanor statement of charges was, contrary to Wall, intended to “change the

form of the charging instrument” Wall, 235 N.C. App. at 199, 760 S.E.2d at 388.

      Here, the State could have cured the defect in the warrant by amendment or

by filing a statement of charges. See N.C. Gen. Stat. § 15-24.1 (2017) and § 15A-922(f)

(2017). It is nonsensical that a trial court would be divested of jurisdiction by the

filing of a statement of charges when an oral motion would have accomplished the

same practical result: correcting the pleading.

       Nevertheless, the majority and Wall incorrectly view Section 15A-922 as

somehow prohibiting the use of a statement of charges to correct criminal pleadings

when there is no such prohibition in the statute or the Official Commentary. In fact,

the use of the misdemeanor statement of charges here was as the Legislature

intended. N.C. Gen. Stat. § 15A-922(a); see also N.C. Gen. Stat. ch. 15A, art. 49

official commentary.

      Because the filing of the statement of charges, with consent of Defendant and

permission of the trial court, merely corrected a defect in a pleading, the trial court

did not err.




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