              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-155

                              Filed: 7 November 2017

Mecklenburg County, Nos. 14 CRS 246563, 246566-67

STATE OF NORTH CAROLINA

             v.

STACY ALLEN SIMMONS


      Appeal by defendant from judgments entered 14 July 2016 by Judge Robert C.

Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 19

September 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Thomas O.
      Lawton III, for the State.

      W. Michael Spivey for defendant-appellant.


      DAVIS, Judge.


      The issue in this case is whether the trial court erred by allowing the State at

the beginning of trial to amend the indictment charging the defendant with

trafficking in heroin and instead charge him with trafficking in opiates. Stacy Allen

Simmons (“Defendant”) appeals from his convictions for possession of marijuana,

possession of cocaine, trafficking in opiates by transportation, and trafficking in

opiates by possession. Because we conclude that the State’s actions constituted a

substantial alteration of the indictment that is not permitted under our law, we
                                  STATE V. SIMMONS

                                  Opinion of the Court



vacate Defendant’s convictions for trafficking in opiates by transportation and by

possession.

                      Factual and Procedural Background

      The State presented evidence at trial tending to establish the following facts:

On 26 November 2014, Officer Adam Thompson, along with five other officers of the

Charlotte-Mecklenburg Police Department, was patrolling the area of the Greenleafe

Inn in Charlotte, North Carolina. The Greenleafe Inn was known to the officers as a

“crime hotspot” where drug-related arrests had been made in the past.

      In the parking lot, Officer Thompson observed a man sitting in the passenger

seat of a white utility van with its engine and lights turned off. He suspected the

man may have been waiting to buy or sell drugs. Officer Thompson approached the

van, and the occupant of the vehicle stated that his name was John Turner. After

Officer Scottie Carson noticed a crossbow on the floor of the vehicle, Officer Thompson

asked Turner to exit the van. As he did so, Turner wiped a white substance from his

pants that Officer Thompson suspected was cocaine.

      The officers searched Turner and the vehicle and found a plastic wrapper

containing heroin residue in his pocket. They also discovered inside the van 32

syringes, 0.5 grams of heroin, and a spoon containing heroin residue. Turner told the

officers he was a heroin addict and was waiting on his dealer to arrive. He identified

Defendant as his heroin dealer and said that Defendant would be driving either a



                                         -2-
                                 STATE V. SIMMONS

                                 Opinion of the Court



black Lexus or a silver Kia minivan. Turner further informed the officers that they

would find heroin in a “Hide-A-Key” box under the hood of Defendant’s vehicle.

      Officer Thompson then waited with Turner in his motel room for Defendant to

arrive. Eventually, a silver Kia minivan drove into the parking lot and parked across

from Turner’s room. Defendant exited the vehicle with a young child in his arms and

approached Turner’s room. Officer Thompson opened the door as Defendant prepared

to knock, and Defendant immediately turned and began walking away. Officer

Thompson ordered him to stop, and Defendant complied.             Officer Thompson

proceeded to search Defendant but did not find any contraband. Officers Thompson

and Carson then asked Defendant if there was any heroin concealed on the child.

After an initial denial, Defendant admitted having placed a packet of heroin in the

child’s pants.

      Defendant was arrested, and Officers Todd Zielinski and Jonathan Brito

conducted a search of the Kia. On the passenger side of the vehicle, they found two

digital scales, a partially smoked marijuana “blunt,” and $800 in cash. Under the

hood was a black “Hide-A-Key” box containing “balloons” of heroin as well as a pill

bottle containing marijuana, crack cocaine, and 17 hydrocodone pills. The officers

also found a revolver wrapped in a sock under the hood. Testing conducted by a

forensic chemist revealed that the hydrocodone weighed 4.62 grams, the heroin




                                        -3-
                                 STATE V. SIMMONS

                                  Opinion of the Court



recovered from the child’s pants weighed 0.84 grams, and the heroin found under the

hood of the Kia weighed 3.77 grams.

      On 8 December 2014, Defendant was indicted by a grand jury on charges of

misdemeanor child abuse, possession of a firearm by a felon, possession of marijuana,

possession with intent to sell or deliver (“PWISD”) cocaine, PWISD heroin, trafficking

in heroin by transportation, trafficking in heroin by possession, possession of drug

paraphernalia, maintaining a vehicle or dwelling for the purpose of using controlled

substances, and possession of a Schedule III controlled substance. On 5 July 2016, a

hearing was held before the Honorable Robert C. Ervin in Mecklenburg County

Superior Court to address various pre-trial matters.      At the hearing, the State

announced that it was dismissing five of the charges.       As a result, the charges

remaining against Defendant were possession of a firearm by a felon, possession of

marijuana, PWISD cocaine, trafficking in heroin by transportation, and trafficking in

heroin by possession.

      At that point in the proceedings, Defendant’s counsel informed the court that

Defendant “intend[ed] to admit to the heroin that was found in the pants leg of the

daughter.” The prosecutor then stated the following:

                    [PROSECUTOR]: Your Honor, I did have one thing,
             and I apologize that I didn’t mention it yet. Quite frankly,
             I wasn’t anticipating doing this, but based on what I’ve
             been hearing from the defense, I think it’s appropriate.
             The state would move to amend the trafficking
             indictments. They right now read possession of heroin. I


                                         -4-
                                  STATE V. SIMMONS

                                   Opinion of the Court



             think the more appropriate word should be opiate or
             opiates. . . . Defendant has been on notice that in addition
             to heroin that was seized from the vehicle, there was also
             hydrocodone that was seized from the vehicle, as he was
             charged with that. That is one of the charges that’s been
             dismissed this morning but doesn’t change the nature of
             the offense. Defendant has a lab result that includes the
             hydrocodone, includes the different bags of heroin that
             were weighed. They all are the same exact, or treated
             exactly the same under the law, and so we’d be moving to
             amend the indictments just to change the word heroin to
             opiates[.]

      Defendant objected to the State’s motion to amend the indictment. However,

the trial court granted the State’s motion and allowed the amendment.

      Defendant’s trial began that same morning.          On 11 July 2016, the jury

convicted Defendant of possession of marijuana, possession of cocaine, trafficking in

opiates by transportation, and trafficking in opiates by possession. Defendant was

found not guilty of possession of a firearm by a felon.

      The trial court consolidated the trafficking convictions and sentenced

Defendant to 70 to 93 months imprisonment. The trial court also consolidated his

convictions for possession of marijuana and cocaine and sentenced him to a term of 8

to 19 months imprisonment to be served consecutively to the trafficking sentence.

The court then suspended the sentence for the possession convictions, and Defendant

was placed on 36 months of supervised probation. Defendant gave oral notice of

appeal.

                                       Analysis


                                          -5-
                                  STATE V. SIMMONS

                                  Opinion of the Court



      Defendant’s sole argument on appeal is that the trial court erred by permitting

the State to amend his drug trafficking indictment by changing the substance

referenced therein from “heroin” to “opiates[.]” He contends that the effect of the

amendment was to substantially alter the trafficking charges in violation of N.C. Gen.

Stat. § 15A-923.

      The statute proscribing trafficking in opiates provides, in pertinent part, as

follows:

             Any person who sells, manufactures, delivers, transports,
             or possesses four grams or more of opium or opiate, or any
             salt, compound, derivative, or preparation of opium or
             opiate . . . including heroin, or any mixture containing such
             substance, shall be guilty of a felony which felony shall be
             known as ‘trafficking in opium or heroin’ and if the
             quantity of such controlled substance or mixture involved:

               a. Is four grams or more, but less than 14 grams, such
                  person shall be punished as a class F felon . . . .

N.C. Gen. Stat. § 90-95(h)(4) (2015).

      While heroin is specifically mentioned in the statutory language, hydrocodone

is also a covered substance under N.C. Gen. Stat. § 90-95(h)(4) as an opium

derivative. State v. Johnson, 214 N.C. App. 436, 441, 714 S.E.2d 502, 506, disc. review

denied, 365 N.C. 362, 718 S.E.2d 393 (2011). All opiates in a person’s possession may

be aggregated to reach the statutory weight threshold of four grams. See State v.

Hazel, 226 N.C. App. 336, 347, 739 S.E.2d 196, 202-03 (holding that heroin found on

defendant’s person could be combined with heroin found in defendant’s apartment to


                                         -6-
                                  STATE V. SIMMONS

                                  Opinion of the Court



support trafficking conviction under N.C. Gen. Stat. § 90-95(h)(4)), appeal dismissed

and disc. review denied, 367 N.C. 219, 747 S.E.2d 582 (2013).

      It is well established that “[a] felony conviction must be supported by a valid

indictment which sets forth each essential element of the crime charged.” State v.

LePage, 204 N.C. App. 37, 49, 693 S.E.2d 157, 165 (2010) (citation omitted). An

indictment that “fails to state some essential and necessary element of the offense” is

fatally defective. State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419

(citation and quotation marks omitted), disc. review improvidently allowed, 349 N.C.

289, 507 S.E.2d 38 (1998). Where an indictment is fatally defective, the superior

court lacks subject matter jurisdiction over the case. State v. Justice, 219 N.C. App.

642, 643, 723 S.E.2d 798, 800 (2012) (citation omitted).

      We review the trial court’s granting of a motion to amend an indictment de

novo. State v. Avent, 222 N.C. App. 147, 148, 729 S.E.2d 708, 710 (citation omitted),

writ of supersedeas denied and disc. review denied, 366 N.C. 411, 736 S.E.2d 176

(2012). N.C. Gen. Stat. § 15A-923 provides that “[a] bill of indictment may not be

amended.” N.C. Gen. Stat. § 15A-923(e) (2015). “Our Supreme Court has interpreted

the term ‘amendment’ under N.C.G.S. § 15A-923(e) to mean any change in the

indictment which would substantially alter the charge set forth in the indictment.”

State v. De la Sancha Cobos, 211 N.C. App. 536, 541, 711 S.E.2d 464, 468 (2011)

(citation and quotation marks omitted). In determining whether an amendment



                                         -7-
                                  STATE V. SIMMONS

                                   Opinion of the Court



amounts to a substantial alteration, courts “must consider the multiple purposes

served by indictments.” State v. Silas, 360 N.C. 377, 380, 627 S.E.2d 604, 606 (2006)

(citation omitted). These purposes are as follows:

             (1) to provide certainty so as to identify the offense, (2) to
             protect the accused from twice being put in jeopardy for the
             same offense, (3) to enable the accused to prepare for trial,
             and (4) to enable the court, on conviction or plea of guilty
             or nolo contendere, to pronounce sentence according to the
             rights of the case.

State v. Foster, 10 N.C. App. 141, 142-43, 177 S.E.2d 756, 757 (1970) (citation

omitted).

      In Silas, our Supreme Court held that where an indictment alleges one theory

of an offense, the State may not later amend the indictment to allege a different

theory. Silas, 360 N.C. at 382, 627 S.E.2d at 607. In Silas, the defendant was initially

indicted for felonious breaking and entering with the intent to commit murder. Id.

at 379, 627 S.E.2d at 606. After the close of all the evidence, the indictment was

amended to change the felony the defendant allegedly intended to commit from

murder to assault with a deadly weapon. Id. The Court held that the amendment

was impermissible because “the indictment served as notice to defendant apprising

him of the State’s theory of the offense.” Id. at 382, 627 S.E.2d at 608. As a result,

“[t]he subsequent alteration prejudiced defendant as he relied upon the allegations

in the original indictment to his detriment in preparing his case upon the assumption




                                          -8-
                                  STATE V. SIMMONS

                                  Opinion of the Court



the prosecution would proceed upon a theory the defendant intended to commit

murder.” Id.

      Similarly, in State v. Frazier, __ N.C. App. __, 795 S.E.2d 654, disc. review

denied, __ N.C. __, 799 S.E.2d 51 (2017), this Court held that an amendment to an

indictment that allowed the jury to convict the defendant of negligent child abuse

under a theory not alleged in the original indictment was impermissible. Id. at __,

795 S.E.2d at 656-57. The initial indictment alleged that the defendant committed

child abuse by negligently failing to treat her child’s chest and facial wounds. Id. at

__, 795 S.E.2d at 656. During trial, however, the State was permitted to amend the

child abuse indictment to allege that the defendant failed to provide a safe

environment for her child. Id. at __, 795 S.E.2d at 656. We held that “[u]nder this

new theory, the jury could convict based on a finding that Defendant’s failure to

provide a safe living environment was the cause of her child’s wounds in the first

instance, irrespective of whether she attempted to treat the wounds after they had

been inflicted.”   Id. at __, 795 S.E.2d at 656-57.      Thus, we concluded that the

amendment in Frazier constituted a substantial alteration of the indictment. Id. at

__, 795 S.E.2d at 656.

      In the present case, Defendant argues that broadening the scope of his

indictment to include additional substances by changing “heroin” to “opiates” was a




                                         -9-
                                    STATE V. SIMMONS

                                    Opinion of the Court



substantial alteration and thus an impermissible amendment of the indictment. We

agree.

         It is well established that “amending an indictment by adding an essential

element is substantially altering the indictment.” De la Sancha Cobos, 211 N.C. App.

at 541, 711 S.E.2d at 468 (quotation marks and brackets omitted). This Court has

held that “the identity of the controlled substance that defendant allegedly possessed

is considered to be an essential element which must be alleged properly in the

indictment.” State v. Stith, __ N.C. App. __, __, 787 S.E.2d 40, 44 (2016) (citation and

quotation marks omitted), aff’d per curiam, __ N.C. __, 796 S.E.2d 784 (2017).

         In State v. Ledwell, 171 N.C. App. 328, 614 S.E.2d 412, disc. review denied, 360

N.C. 73, 622 S.E.2d 624 (2005), we held that an indictment alleging possession of

methylenedioxyamphetamine was facially invalid for failing to allege a substance

listed under Schedule I of the North Carolina Controlled Substances Act. Id. at 333,

614 S.E.2d at 415. We ruled that while “3, 4-methylenedioxyamphetamine” was a

substance listed under Schedule I, the absence of the correct numerical prefix in the

indictment rendered it fatally flawed. Id. at 332-33, 614 S.E.2d at 414-15 (citation

omitted).     This Court explained that “we cannot regard this defect as a mere

technicality, for the chemical and legal definition of these substances is itself

technical and requires precision.” Id. at 332, 614 S.E.2d at 415 (citation omitted); see

also State v. Ahmadi-Turshizi, 175 N.C. App. 783, 785-86, 625 S.E.2d 604, 605-06



                                           - 10 -
                                   STATE V. SIMMONS

                                   Opinion of the Court



(noting “Schedule I of the North Carolina Controlled Substances Act . . . identifies a

long list of controlled substances by their specific chemical names” and holding that

indictment       alleging       possession,          sale,   and     delivery       of

methylenedioxymethamphetamine was defective for “fail[ing] to include ‘3, 4’ [prefix]

as required”), writ of supersedeas denied and disc. review denied, 369 N.C. 484, 631

S.E.2d 133 (2006).

      Similarly, in LePage, we held that an indictment charging the defendant with

contaminating food or drink with a controlled substance was fatally defective because

it identified the alleged controlled substance as “benzodiazepines” rather than

“Clonazepam.” 204 N.C. App. at 54, 693 S.E.2d at 168. In explaining the importance

of the distinction, we stated as follows:

             The term ‘benzodiazepine’ describes a class of drug which
             encompasses a number of individual drugs. There is not a
             drug called simply ‘benzodiazepine;’ rather, there exist
             several drugs, including Clonazepam . . . all of which fall
             within the class of benzodiazepines. . . . In essence,
             Clonazepam is a benzodiazepine.        However, not all
             benzodiazepines are Clonazepam.

Id. at 52-53, 693 S.E.2d at 167. Thus, in assessing the validity of an indictment, the

distinction between a specific controlled substance and the category of controlled

substances to which it belongs is a critical one.

      In State v. Williams, 242 N.C. App. 361, 774 S.E.2d 880 (2015), this Court held

that where an indictment for possession with intent to manufacture, sell, or deliver



                                            - 11 -
                                  STATE V. SIMMONS

                                   Opinion of the Court



a Schedule I substance failed to allege possession of a substance classified under

Schedule I, the indictment could not be amended to properly allege possession of a

Schedule I substance. Id. at 368, 774 S.E.2d at 885. In that case, the original

indictment alleged that the defendant possessed methylethcathinone. Id. at 363-64,

774 S.E.2d at 883. We noted that, although methylethcathinone was not a Schedule

I substance, 4-methylethcathinone was, in fact, listed under Schedule I and the

indictment was amended prior to trial to add the prefix “4-” to the substance named

therein. Id. We held that because “the amendment effectively added an essential

element that was previously absent, it constituted a substantial alteration and, as a

result, was legally impermissible.” Id. at 368, 774 S.E.2d at 885-86 (citation omitted).

      Here, the State broadened the scope of Defendant’s original indictment to

allege that he had trafficked in “opiates,” a category of controlled substances, rather

than “heroin,” a specific controlled substance. It did so for the purpose of bringing an

additional controlled substance — hydrocodone — within the ambit of the indictment.

Although heroin is an opiate, not all opiates are heroin. Therefore, when the original

indictment was amended to include hydrocodone, a new substance was effectively

alleged in the indictment. See Ahmadi-Turshizi, 175 N.C. App. at 784-85, 625 S.E.2d

at 605 (“[T]he identity of the controlled substance that defendant allegedly possessed

is . . . an essential element which must be alleged properly in the indictment.”

(citation omitted)).



                                          - 12 -
                                  STATE V. SIMMONS

                                   Opinion of the Court



      Our holding is consistent with the proposition that a critical purpose served by

the indictment requirement is to “enable the accused to prepare for trial.” Foster, 10

N.C. App. at 142, 177 S.E.2d at 757 (citation omitted). In this case, the State moved

to amend the indictment on the morning of trial.          Until then, Defendant had

justifiably relied upon the original indictment in preparing his defense. This concern

was expressed by Defendant’s attorney in his objection to the State’s motion to amend

the indictment:

                    [DEFENDANT’S COUNSEL]: Well, your Honor, it’s
             been our understanding all along that the heroin charge –
             the trafficking in heroin – had to do specifically with the
             3.7 as well as the .84 grams that was seized. The
             hydrocodone was charged separately, and we had no
             knowledge that this would be included in – or the state
             would try to include this in the trafficking amount. At this
             point this is the first I’m hearing of this.

      Notably, the State sought to amend the indictment only after Defendant

informed the trial court of his intention to admit to possessing some, but not all, of

the heroin that was found by the officers during the 26 November 2014 incident. The

logical inference from this sequence of events is that upon learning of Defendant’s

trial strategy on the morning of trial, the State sought to thwart that strategy by

broadening the scope of the indictment. In essence, the State was permitted to

change the rules of the game just as the players were taking the field.

      The State argues that because the amendment to the indictment at issue here

occurred before trial, Defendant was not prejudiced in his ability to prepare a defense.


                                          - 13 -
                                  STATE V. SIMMONS

                                  Opinion of the Court



We rejected a similar argument in De la Sancha Cobos. There, the indictment

alleging conspiracy to traffic in cocaine was amended “[a]t the beginning of the trial

before the jury was empaneled” to specify the amount of cocaine. De la Sancha Cobos,

211 N.C. App. at 538, 711 S.E.2d at 466. In that case, this Court ruled that “[b]ecause

we have previously held that the weight of cocaine is an essential element of the

offense of conspiracy to traffic in cocaine, we conclude that amending an indictment

by adding an essential element is substantially altering the indictment.” Id. at 541,

711 S.E.2d at 468 (quotation marks and brackets omitted). Thus, the fact that the

amendment here occurred before trial had actually begun does not change our

determination that the amendment was impermissible.

      Therefore, the trial court erred in allowing the State to amend Defendant’s

indictment. Accordingly, the convictions at issue must be vacated.

                                    Conclusion

      For the reasons stated above, we vacate Defendant’s convictions for trafficking

in opiates by transportation and trafficking in opiates by possession and remand for

resentencing.

      VACATED IN PART AND REMANDED.

      Judges BRYANT and INMAN concur.




                                         - 14 -
