The ability to file a misdemeanor statement of charges is a superpower for district court prosecutors, enabling them to overcome virtually any error in a criminal pleading with the stroke of a pen. Arraignment in district court is kryptonite, robbing the superpower of its efficacy. This dynamic was on full display in State v. Capps, __ N.C. App. __, __ S.E.2d __, 2019 WL 2180435 (May 21, 2019), a recent opinion by the court of appeals.
Facts. Ben Capps stopped at a truck stop, got in an argument with a passenger in his vehicle, cut off the end of the truck stop’s air hose, attempted to strike the passenger with it, and when confronted by an off-duty deputy, drove off with the piece of hose.
Procedural history. A magistrate issued an arrest warrant for Capps, charging him with misdemeanor larceny and other offenses. Capps was arrested and pled guilty in district court. He appealed for trial de novo in superior court, and the following exchange took place:
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 judge granted the State’s motion and the State filed a statement of charges containing the revised language. The defendant was convicted and appealed.
Appeal. Capps argued, and a majority of the court of appeals panel agreed, that the State violated G.S. 15A-922 by filing a statement of charges on its own initiative in superior court. Subsection (d) of the statute provides that a “prosecutor may file a statement of charges upon his own determination at any time prior to arraignment in the district court.” Such a statement of charges is very flexible. It “may charge the same offenses as the [earlier pleading] or additional or different offenses.” However, the majority determined that this subsection had no application because the statement of charges in this case was not filed “prior to arraignment in the district court.”
Under subsection (e) of the statute, the State may file a statement of charges at or after arraignment in district court “[i]f the defendant by appropriate motion objects to the sufficiency of [an earlier pleading] . . . and the judge rules that the pleading is insufficient.” A statement of charges filed under this provision is more limited. It “may not change the nature of the offense.” The majority determined that this subsection also had no application, because the defendant had not objected to the sufficiency of the arrest warrant. Thus, the State had no valid pleading on which to rely and the defendant’s conviction had to be vacated.
The State contended that what happened was in the nature of an amendment, and so was not subject to the technical limitations on statements of charges, but the majority disagreed: “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.” In support of this conclusion, the majority cited State v. Wall, 235 N.C. App. 196 (2014), discussed in this prior post, which ruled that filing a statement of charges “change[s] the nature of the original pleading entirely.”
The dissent. A dissenting judge would have ruled that the statement of charges was not filed based on the prosecutor’s “own determination” and so was not subject to the time limitations in G.S. 15A-922(d). Instead, the dissenting judge viewed the document as “a new pleading filed with consent of all parties and permission of the Court,” and therefore as a permissible way to remedy a technical defect in the arrest warrant.
Analysis and a practice pointer. If the document filed in this case is properly viewed as a statement of charges, I see the case as a straightforward win for the defendant, for the reasons given by the majority. But the State seems to have argued that what the prosecutor presented to the trial judge was not a statement of charges at all, but rather an amendment written up using a statement of charges form, AOC-CR-120. (In retrospect, the prosecutor probably wishes that he or she hadn’t used that particular form, but I imagine that he or she wanted to have a “clean” document.) Both the prosecutor and the trial judge mentioned “amend[ing]” the warrant, so that’s at least a plausible characterization of what happened.
If that’s the right way to view it, there’s no timing problem, because district court pleadings may be amended “at any time prior to or after final judgment.” G.S. 15A-922(f). But a different issue then crops up. An amendment is permissible only “when the amendment does not change the nature of the offense charged.” Id. Would it change the nature of the offense charged to strike through “Love’s Truck Stop” and replace it with “Love’s Travel Stop & Country Stores, Incorporated”?
Historically I have thought that changing the name of the victim in a way that cures a fatal defect changes the nature of the offense charged, even if the “old name” and the “new name” are very similar. See State v. Cathey, 162 N.C. App. 350 (2004) (deeming it improper to amend a larceny indictment to read “Faith Temple Church—High Point, Incorporated” rather than “Faith Temple Church of God” because doing so would cure a fatal defect and would be a substantial alteration of the indictment), overruled on other grounds, State v. Campbell, 368 N.C. 83 (2015) (holding that describing an entity as a church sufficiently signifies that it is capable of owning property). Cf. State v. Abbott, 217 N.C.App. 614 (2011) (ruling that it was an improper substantial alteration to amend the name of the victim in an indictment from “Cape Fear Carved Signs, Incorporated” to “Cape Fear Carved Signs,” a sole proprietorship). On this view, because a pleading charging that “Love’s Truck Stop” was the victim of a larceny would be fatally defective for failing to identify an entity capable of owning property, an amendment adding a reference like “Incorporated” would change the nature of the offense charged and so should not be allowed.
I am not as confident about that these days, in part because the appellate division has been chipping away at some of the formality regarding entities capable of owning property. This shows in cases like Campbell; State v. Brawley, 370 N.C. 626 (2018) (holding that “Belk’s Department Stores, an entity capable of owning property” adequately alleged that the victim was an entity capable of owning property); and most recently, State v. Speas, __ N.C. App. __, __ S.E.2d __, 2019 WL 1996453 (May 9, 2019) (holding that “Sears Roebuck and Company” adequately alleged that the victim was an entity capable of owning property). Furthermore, there’s a relatively recent unpublished case closely on point allowing an amendment adding a corporate signifier. See State v. Lewis, 230 N.C. App. 145, 2013 WL 5629425 (Oct. 15, 2013) (unpublished) (finding no error where the State was allowed to amend the victim’s name in a larceny citation from “Sally Beauty” to “Sally Beauty Holdings, Inc.” and stating that the amendment did not change the nature of the offense charged).
If the State could properly have amended the warrant in Capps, then the outcome of the appeal turned on whether what the State presented was an amendment written on a statement of charges form (which is how the prosecutor and the trial court described it) or was truly a statement of charges filed pursuant to G.S. 15A-922 (which is consistent with the caption of the document and is how the court of appeals majority viewed it). That’s a pretty fine distinction, so the practice pointer for prosecutors is simply not to use the statement of charges form when amending a pleading. Especially after arraignment in district court, when the statement of charges isn’t a superpower anymore.