                                   NO. COA13-359

                     NORTH CAROLINA COURT OF APPEALS

                            Filed:        21 January 2014


STATE OF NORTH CAROLINA

     v.                                        Wayne County
                                               No. 11 CRS 5425
MAURICE ERSEL CARLTON,
     Defendant.


     Appeal by defendant from judgment entered 2 August 2012 by

Judge Charles H. Henry in Wayne County Superior Court.                    Heard in

the Court of Appeals 12 September 2013.


     Roy Cooper, Attorney General, by                  David    Shick,    Associate
     Attorney General, for the State.

     Gerding Blass,        PLLC,     by     Danielle    Blass    for     defendant-
     appellant.


     DAVIS, Judge.


     Maurice    Ersel      Carlton        (“Defendant”)     appeals      from    his

conviction for possession of tickets used in an illegal lottery.

On appeal, he argues that the trial court did not have jurisdiction

to try him on the possession of lottery tickets offense.                        After

careful review, we vacate the trial court’s judgment.

                            Factual Background

     On   11   September    2011,    Officer     Matthew       Fishman    (“Officer
                                   -2-
Fishman”) of the Mount Olive Police Department was on patrol and

noticed that the right rear brake light on Defendant’s vehicle was

not functioning properly.        Officer Fishman initiated a traffic

stop and asked Defendant to step out of the vehicle.                He then

issued Defendant a warning citation, returned his license and

registration, and asked Defendant if “there was anything in the

vehicle . . . that [he] needed to know about.”           Defendant replied:

“[N]o, you’re welcome to look.”

       Officer Fishman conducted a search of the vehicle and located

“approximately 10 carbon copy books which contained a white, pink,

and yellow copy” and a calculator in the center console of the

car.     He proceeded to issue Defendant a North Carolina Uniform

Citation purporting to charge Defendant with violating N.C. Gen.

Stat. § 14-291.1     The citation simply stated that “[a] person . .

. guilty of this offense acts as an agent in this state for a

lottery.”

       The case was first tried before the Honorable Charles P.

Gaylor, III in    Wayne County District Court on 9 March 2012.        Judge

Gaylor    found   Defendant   guilty   of   “operating    [a]   lottery”   in




1 The citation also charged Defendant with misdemeanor simple
possession of marijuana. Because Defendant was found not guilty
of this offense by the district court, that charge is not relevant
to this appeal.
                                -3-
violation of N.C. Gen. Stat. § 14-290 (rather than § 14-291, the

statute referenced on the citation) and sentenced him to 45 days

imprisonment.   Judge Gaylor then suspended the sentence and placed

Defendant on unsupervised probation for six months.       Defendant

appealed his conviction to Wayne County Superior Court.

     A jury trial was held on 2 August 2012 in Wayne County

Superior Court before the Honorable Charles H. Henry.   Immediately

prior to the trial, the prosecutor informed Judge Henry that “[t]he

State had made a motion at the district court trial to have the

charging statute amended . . . [I]t was originally charged as 14-

291 and during the district court proceeding the State amended

that to 14-290 and that was allowed by the district court judge.”2

     The trial proceeded on the charge of possession of tickets

used in the operation of an illegal lottery in violation of N.C.

Gen. Stat. § 14-290, and the jury found Defendant guilty of that

offense.   Judge Henry entered judgment on the jury’s verdict and

sentenced Defendant to 60 days imprisonment but suspended the

sentence and placed him on supervised probation for 18 months.




2 The record on appeal does not contain written documentation of
the purported amendment or a transcript of the district court
proceedings. The prosecutor’s statement to the trial court is the
only indication in the record that the district court consented to
the State’s request to have the citation amended in this fashion.
                                -4-
Defendant gave notice of appeal in open court.

                              Analysis

     Defendant argues that the superior court lacked jurisdiction

to try him for possession of lottery tickets in violation of N.C.

Gen. Stat. § 14-290.    We agree.

     The confusion in this case arises from the fact that two

separate criminal statutes are implicated — N.C. Gen. Stat. § 14-

291 (the original charging statute) and N.C. Gen. Stat. § 14-290

(the statute under which Defendant was convicted in both district

and superior court).3     N.C. Gen. Stat. § 14-291, the original



3 A source of additional confusion lies in the fact that the written
judgment mistakenly lists a third statute — N.C. Gen. Stat. § 14-
291.1 — as the statute prohibiting possession of lottery tickets
instead of listing § 14-290. This mistake in the judgment is noted
by both parties in their respective briefs but treated as a
clerical error. Although § 14-291.1 — like § 14-290 — punishes
the possession of tickets used in illegal lotteries, its particular
elements are inconsistent with the jury instructions provided by
the trial court. Furthermore, entering judgment on a violation of
§ 14-291.1 would be contrary to the pretrial dialogue in which the
prosecutor explained that he was proceeding on a charge of
possession of tickets used in an illegal lottery in violation of
§ 14-290. As such, we agree with the parties that the reference
to § 14-291.1 on the written judgment is appropriately deemed a
clerical error. See State v. Jarman, 140 N.C. App. 198, 202, 535
S.E.2d 875, 878 (2000) (defining clerical error as “[a]n error
resulting from a minor mistake or inadvertence, esp. in writing or
copying something on the record, and not from judicial reasoning
or determination”) (citation and quotation marks omitted)).
Therefore, our analysis of this appeal treats Defendant’s
conviction as arising under § 14-290. Moreover, because we are
vacating the judgment for lack of jurisdiction, we need not remand
for the correction of this clerical error.
                                -5-
charging statute identified in the citation, provides as follows:

          Except as provided in Chapter 18C of the
          General Statutes or in connection with a
          lawful raffle as provided in Part 2 of this
          Article, if any person shall sell, barter or
          otherwise dispose of any lottery ticket or
          order for any number of shares in any lottery,
          or shall in anywise be concerned in such
          lottery, by acting as agent in the State for
          or on behalf of any such lottery, to be drawn
          or paid either out of or within the State,
          such person shall be guilty of a Class 2
          misdemeanor.

N.C. Gen. Stat. § 14-291 (2011).

     Thus, in order to successfully prosecute Defendant under §

14-291, the State is required to prove that (1) Defendant acted as

an agent in the State (2) for or on behalf of a lottery.   See State

v. Heglar, 225 N.C. 220, 223, 34 S.E.2d 76, 77 (1945) (reversing

trial court’s denial of defendants’ motion to dismiss alleged

violation of N.C. Gen. Stat. § 14-291 where there was no evidence

that defendants “were agents for others in the operation of a

lottery”).   An agent is typically defined as an individual who is

not merely “a subordinate employee without discretion, but . . .

one . . . having some charge or measure of control over the business

entrusted to him or some feature of it . . . .”      Carolina Paper

Co. v. Bouchelle, 19 N.C. App. 697, 699, 200 S.E.2d 203, 205

(citation and quotation marks omitted), aff’d, 285 N.C. 56, 203

S.E.2d 1 (1974).
                               -6-
     N.C. Gen. Stat. § 14-290, on the other hand, reads as follows:

          Except as provided in Chapter 18C of the
          General Statutes or in connection with a
          lawful raffle as provided in Part 2 of this
          Article, if any person shall open, set on
          foot, carry on, promote, make or draw,
          publicly or privately, a lottery, by whatever
          name, style or title the same may be
          denominated or known; or if any person shall,
          by such way and means, expose or set to sale
          any house, real estate, goods, chattels, cash,
          written evidence of debt, certificates of
          claims or any other thing of value whatsoever,
          every person so offending shall be guilty of
          a Class 2 misdemeanor which may include a fine
          not to exceed two thousand dollars ($2,000).
          Any person who engages in disposing of any
          species of property whatsoever, including
          money and evidences of debt, or in any manner
          distributes gifts or prizes upon tickets,
          bottle   crowns,   bottle   caps,   seals   on
          containers, other devices or certificates sold
          for that purpose, shall be held liable to
          prosecution under this section. Any person who
          shall have in his possession any tickets,
          certificates or orders used in the operation
          of any lottery shall be held liable under this
          section, and the mere possession of such
          tickets shall be prima facie evidence of the
          violation of this section. This section shall
          not apply to the possession of a lottery
          ticket or share for a lottery game being
          lawfully conducted in another state.

N.C. Gen. Stat. § 14-290 (2011).

     In order to establish a violation of § 14-290, therefore, the

State need only establish that Defendant (1) knowingly possessed

(2) lottery tickets (3) used in the operation of a lottery.

Furthermore, mere possession of such lottery tickets is prima facie
                                     -7-
evidence of a violation of the statute.        Id.    As such, if the jury

finds beyond a reasonable doubt that the defendant knowingly

possessed the lottery tickets, it may also infer that those tickets

were used in the operation of a lottery.        See State v. Dawson, 23

N.C. App. 712, 714, 209 S.E.2d 503, 505 (1974) (evidence that

defendant possessed tickets found on floorboard of his automobile

“was sufficient to support the inference that the tickets were

those used in the operation of a lottery”), cert. denied, 286 N.C.

417, 211 S.E.2d 798 (1975).

      Here, Defendant was charged by means of a North Carolina

Uniform Citation.       A citation may serve as the State’s pleading

for   a   misdemeanor   prosecuted    in   district   court   “unless   the

prosecutor files a statement of charges, or there is objection to

trial on a citation.”      N.C. Gen. Stat. § 15A-922(a) (2011).

      The citation in this case alleged that, on 11 September 2011,

Defendant violated N.C. Gen. Stat. § 14-291.              The handwritten

statement of the offense at the bottom of the citation reads as

follows: “G.S. 14-291[.]      A person . . . guilty of this offense

acts as an agent in this state for a lottery.”                However, as

discussed above, the district court found Defendant guilty of

violating N.C. Gen. Stat. § 14-290 and entered judgment on that

offense.
                                       -8-
     It is well established that misdemeanor charging documents

may not be amended so as to charge the defendant with committing

a different crime.          See N.C. Gen. Stat. § 15A-922(f) (2011) (“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.”     (emphasis   added));      State   v.

Clements, 51 N.C. App. 113, 116, 275 S.E.2d 222, 225 (1981) (“[A]n

amendment to a warrant under which a defendant is charged is

permissible as long as the amended warrant does not charge the

defendant with a different offense.” (emphasis added)).

     Assuming, without deciding, that the original citation was

sufficient to charge the commission of a criminal offense and that

the procedures purportedly employed in the district court resulted

in an actual amendment to the original charging instrument —

subjects about which we express no opinion, the resolution of

Defendant’s jurisdictional argument hinges on whether a violation

of N.C. Gen. Stat. § 14-290 is a different crime than a violation

of N.C. Gen. Stat. § 14-291.                 Based on our examination and

comparison    of    these    two   statutes,    we   conclude   that    amending

Defendant’s citation by replacing N.C. Gen. Stat. § 14-291 with

N.C. Gen. Stat. § 14-290 as the charging statute would, in fact,
                               -9-
effectively charge Defendant with a different offense.   Instead of

requiring the State to establish that Defendant was acting as a

representative in the State    for an illegal lottery,     such an

amendment would merely require proof that Defendant knowingly

possessed lottery tickets in order to make out a prima facie

violation of the statute.

     Thus, given the significantly distinct elements of these two

crimes, we are compelled to conclude that amending the citation to

charge Defendant under § 14-290 — rather than under § 14-291 —

would change the nature of the offense charged.      See State v.

Davis, 261 N.C. 655, 656, 135 S.E.2d 663, 663 (1964) (holding that

trial court could not amend warrant to change charging statute

where “[e]ach of these statutes creates and defines a separate

criminal offense”); In re Davis, 114 N.C. App. 253, 256, 441 S.E.2d

696, 698 (1994) (holding that trial court could not amend petition

to charge juvenile with different offense than that originally

alleged).   Therefore, even assuming that the district court did

attempt to amend the citation in this manner (as was related by

the prosecutor to Judge Henry shortly before the trial in superior

court), such an amendment would not have been legally permissible.

     Because the district court lacked legal authority to amend

the citation to charge Defendant with a violation of N.C. Gen.
                                  -10-
Stat. § 14-290, the superior court did not have jurisdiction to

try Defendant for possession of tickets used in the operation of

an illegal lottery in violation of that statute.           Accordingly, we

must vacate the superior court’s judgment.4       See State v. Caudill,

68 N.C. App. 268, 272, 314 S.E.2d 592, 594 (1984) (vacating

judgment where superior court did not have jurisdiction because

amended     offense   was   “separate    and   distinct”    from   offense

originally charged).

                               Conclusion

     For the reasons stated above, we vacate the trial court’s

judgment.

     VACATED.

     Judges HUNTER, JR. and ERVIN concur.




4 Because we vacate Defendant’s judgment for lack of jurisdiction,
we need not address Defendant’s remaining arguments on appeal.
