State v. Bollinger

665 S.E.2d 136, 192 N.C. App. 241, 2008 N.C. App. LEXIS 1518
CourtCourt of Appeals of North Carolina
DecidedAugust 19, 2008
DocketCOA07-1062
StatusPublished
Cited by17 cases

This text of 665 S.E.2d 136 (State v. Bollinger) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bollinger, 665 S.E.2d 136, 192 N.C. App. 241, 2008 N.C. App. LEXIS 1518 (N.C. Ct. App. 2008).

Opinions

BRYANT, Judge.

Defendant Wesley David Bollinger appeals from a criminal conviction for carrying a concealed weapon. For the reasons stated herein, we find no prejudicial error.

At approximately 3:30 a.m., on 24 September 2005, Sergeant Mark Davis, Officer Heather Delaney, and Officer Jeffrey Baucom of the Concord Police Department reported to the scene of a two-vehicle accident. Upon arrival, the officers interviewed witnesses in order to fill out the accident report. During his interview, defendant informed Sgt. Davis that he did not have a license.

[243]*243At that time, Sgt. Davis asked for and received permission from defendant to conduct a pat-down of his person. Upon conducting the pat-down, Sgt. Davis discovered metallic knuckles and knives. Defendant was arrested for carrying a concealed weapon and driving with a revoked license.

Defendant was indicted for carrying a concealed weapon. The indictment stated defendant “unlawfully and willfully did carry a concealed deadly weapon while off his premises, to wit: a Metallic set of Knuckles.” (Emphasis added).

At trial, Officer Baucom testified that he observed Sgt. Davis pat-down defendant and discover “[a] set of metallic knuckles from [defendant’s] left rear pocket, a knife from his belt, another knife from his right front pocket and a fixed-blade sheath knife that was on some type of lanyard around his neck.” The State introduced into evidence a knife, metallic knuckles, and a fixed blade sheath knife all taken from defendant’s person at the time he was arrested.

After the close of the evidence, the trial court instructed the jury, regarding the charge of carrying a concealed weapon, as follows:

The defendant has been charged with carrying a concealed weapon. For you to find the defendant guilty of this offense, the State must prove three things beyond a reasonable doubt. First, that the defendant carried one or more knives. Second, that the weapon was concealed, that is, hidden from the view of others on or about the defendant’s person in such a way that he could quickly use it if prompted to do so by any violent motive. And, third, that the defendant acted willfully and intentionally, that is, that he intended to carry and conceal the weapon.
So if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant willfully and intentionally carried and concealed about his person one or more knives, it will be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

(Emphasis added).

The jury returned a verdict of guilty, and the trial court entered judgment. Defendant appealed.

On appeal, defendant argues only one issue: whether the trial court committed jurisdictional error by entering judgment against [244]*244him for carrying a concealed weapon. Although defendant raised six assignments of error in the record, he has not brought them forth in his brief. Therefore, pursuant to Rule 28, we deem them abandoned. N.C.R. App. P. 28(b)(6) (2008).

Defendant argues the trial court committed jurisdictional error by entering judgment for the offense of carrying a concealed weapon, after the jury was instructed it could find defendant guilty only upon a finding that defendant “intentionally carried and concealed about his person one or more knives” (emphasis added) while the indictment alleged only that defendant unlawfully carried a concealed weapon “to wit: a Metallic set of Knuckles.”

We note defendant failed to object to the indictment and failed to object to the jury instruction. Under North Carolina Rules of Appellate Procedure, Rule 10(b)(2), “[a] party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict . . . .” N.C.R. App. P. 10(b)(2) (2007). However, “[t]he North Carolina Supreme Court has chosen to review such unpreserved issues for plain error when... the issue involves either errors in the trial judge’s instructions to the jury or rulings on the admissibility of evidence.” State v. Holbrook, 137 N.C. App. 766, 768, 529 S.E.2d 510, 511 (2000) (citation and internal quotations omitted).

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.

Id. at 767-68, 529 S.E.2d at 511 (citation and internal quotations omitted).

Our General Assembly has, under North Carolina General Statute section 15A-641, defined an indictment as “a written accusation by a grand jury, filed with a superior court, charging a person with the [245]*245commission of one or more criminal offenses.” N.C. Gen. Stat. § 15A-641 (2007). “It is a well-established rule in this jurisdiction that it is error, generally prejudicial, for the trial judge to permit a jury to convict upon some abstract theory not supported by the bill of indictment.” State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980) (citations omitted). Here, defendant does not argue the indictment was facially invalid or otherwise insufficient to confer subject matter jurisdiction upon the trial court. It is clear the indictment charging carrying a concealed weapon pursuant to N.C. Gen. Stat. § 14-269(a) is valid on its face. Defendant merely alleges the indictment is insufficient to support the conviction. Defendant is in essence arguing there exists a fatal variance between the offense charged in the indictment and the evidence presented (and instructions given) at trial.

We note defendant cites (incorrectly) as an example but does not otherwise argue McClure v. State, 267 N.C. 212, 148 S.E.2d 15 (1966), for the proposition that a judgment is void when there is no valid indictment properly charging the offense for which a defendant is convicted. McClure is inapposite as the defendant in McClure pled guilty to the crime of assault with intent to commit rape, a charge separate and distinct, i.e. consisting of different elements, from the crime for which he was indicted — statutory rape. Id.

In his reply brief, defendant cites State v. Thorpe, 274 N.C. 457, 164 S.E.2d 171 (1968), as indicating that an indictment is insufficient to support a conviction if it does not conform to material elements in the jury charge required to support the conviction.

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State v. Bollinger
665 S.E.2d 136 (Court of Appeals of North Carolina, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
665 S.E.2d 136, 192 N.C. App. 241, 2008 N.C. App. LEXIS 1518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bollinger-ncctapp-2008.