State v. Uran

901 S.E.2d 872

STATE of North Carolina

v.Rachel Shalom J URAN, Defendant.

No. COA23-881

Court of Appeals of North Carolina.

Filed May 21, 2024

Appeal by Defendant from judgment entered 5 April 2023 by Judge Henry L. Stevens in Onslow County Superior Court. Heard in the Court of Appeals 19 March 2024. Onslow County, No. 19 CRS 054820

Attorney General Joshua H. Stein, by Assistant Attorney General Michelle Harris, for the State.

John W. Moss, for Defendant.

GRIFFIN, Judge.

Defendant Rachel Shalom Juran appeals from a judgment entered upon a jury verdict finding her guilty of assault on an emergency personnel. Defendant contends the trial court erred in denying her motion to dismiss; plainly erred in its jury instruction and verdict sheet; and violated her right to a unanimous jury verdict. We hold the trial court did not err, let alone commit plain error, or violate Defendant’s right to a unanimous jury verdict.

I. Factual and Procedural Background

On 1 September 2019, Defendant called 911 after experiencing intermittent chest pain. K. Lueth, a paramedic for Pender County EMS and Fire Department, along with her partner, responded to Defendant’s home. Defendant was placed in an ambulance to be transported to Onslow Memorial Hospital. While in transit, Defendant became agitated and forcefully grabbed and squeezed Lueth’s hand.

Lueth’s partner, who was driving the ambulance, found a safe place to pull over and called both Lueth’s supervisor and the police. A patrol sergeant with Onslow County Sherriff's Office and Lueth’s supervisor arrived on scene. Lueth’s supervisor rode in the ambulance with Defendant and Lueth the remainder of the way to the hospital. Upon release from the hospital, Defendant was arrested.

On 3 December 2019, Defendant was indicted for assault on an emergency personnel and communicating threats. On 3 April 2023, the matter came on for jury trial before Judge Stevens in Onslow County Superior Court. On 5 April 2023, the jury returned a verdict finding Defendant guilty of assault on an emergency personnel and not guilty of communicating threats. Defendant was sentenced to 6 to 17 months’ imprisonment suspended for 24 months’ supervised probation.

[1, 2] Defendant timely filed notice of appeal on 6 April 2023 and, on 27 November 2023, Defendant filed a petition for writ of certiorari.¹

II. Analysis

Defendant contends the trial court erred in denying her motion to dismiss and plainly erred in its jury instruction and verdict sheet as a fatal variance occurred both between the offense charged and the offense established at trial and between the indictment and the jury instruction and verdict sheet. Defendant further contends the trial court violated her right to a unanimous jury verdict.

A. Fatal Variance

Defendant argues the trial court erred in denying her motion to dismiss as the State failed to provide sufficient evidence of each element of the crime charged where a fatal variance occurred between the offense charged in the indictment and the offense established at trial. Further, Defendant argues the trial court plainly erred in its jury instruction and verdict sheet as a fatal variance occurred between the indictment and the jury instruction and verdict sheet. We disagree.

[3–7] It is a well-established principle within the administration of criminal law that "a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment." State v. Jackson, 218 N.C. 373, 376, 11 S.E.2d 149, 151 (1940). Thus, the allegations in the charging indictment must correspond with the evidence offered at trial. Id. Likewise, the allegations must also "conform to the equivalent material aspects of the jury charge[.]" State v. Williams, 318 N.C. 624, 631, 350 S.E.2d 353, 357 (1986). A fatal variance may exist where there is a discrepancy between either the allegations and the offense established or the allegations and the jury instruction. "The determination of whether a fatal variance exists turns upon two policy concerns, namely, (1) insuring that the defendant is able to prepare his defense against the crime with which he is charged and (2) protect[ing] the defendant from another prosecution for the same incident." State v. Glidewell, 255 N.C. App. 110, 113, 804 S.E.2d 228, 232 (2017) (internal marks and citations omitted). Accordingly, to constitute a fatal variance which warrants reversal, the variance "must be material, meaning it must involve an essential element of the crime charged," and the defendant must establish he suffered prejudice as a result. Id.

1. Motion to Dismiss

Defendant contends the trial court erred in denying her motion to dismiss as the State failed to provide sufficient evidence of each element of the crime charged where a fatal variance occurred between the offense charged in the indictment and the offense established at trial.

Our North Carolina Rules of Appellate Procedure, Rule 10, prescribes the ways in which a party may preserve an issue for appellate review. See N.C. R. App. P. 10. Rule 10(a)(1), defines the general procedure for preserving issues for appellate review:

In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.

N.C. R. App. P. 10(a)(1). On the other hand, Rule 10(a)(3) delineates the procedure required to specifically preserve a sufficiency of the evidence issue. See N.C. R. App. P. 10(a)(3). Under Rule 10(a)(3), a defendant in a. criminal case may not make the sufficiency of the State’s evidence at trial the basis of his issue on appeal unless he made a motion to dismiss at trial. Id. The motion to dismiss may be made at the close of the State’s evidence and/or at the close of all evidence. Id. However, where the defendant makes a motion to dismiss at the close of the State’s evidence and then decides to present evidence of his own, he has waived his motion and is precluded from appealing on the issue of its denial unless he renews his motion at the close of all evidence. Id.

In State v. Golder, our Supreme Court addressed the distinctions between Rules 10(a)(1) and 10(a)(3), noting, "unlike [Rule 10(a)(1)], Rule 10(a)(3) does not require that the defendant assert a specific ground for a motion to dismiss for insufficiency of the evidence." 374 N.C. 238, 245–46, 839 S.E.2d 782, 788 (2020). Likewise, the Court held, "Rule 10(a)(3) [ ] provides that when a defendant properly moves to dismiss, the defendant’s motion preserves all sufficiency of the evidence issues for appellate review." Id. at 245, 839 S.E.2d at 787.

Soon after our Supreme Court’s decision in Golder, the Court, in State v. Smith, 375 N.C. 224, 846 S.E.2d 492 (2020), addressed whether a defendant’s fatal variance argument was a properly preserved sufficiency of the evidence issue, where he made a general motion to dismiss based on sufficiency of the evidence at the close of the State’s evidence and at the close of all evidence. The Smith Court, acknowledging Golder, addressed the merits of the defendant’s case but only did so after "assuming without deciding that [the] defendant’s fatal variance argument was preserved[.]" Id. at 231, 846 S.E.2d at 496. After the Court’s decision in Smith, our Courts, when faced with a similar issue, have continually reviewed the merits of fatal variance arguments—all while assuming without deciding whether a defendant, upon a motion to dismiss pursuant to Rule 10(a)(3), has preserved a fatal variance argument as a sufficiency of the evidence issue. See State v. Gunter, 289 N.C. App. 45, 49, 887 S.E.2d 745, 748 (2023); State v. Mackey, 287 N.C. App. 1, 7, 882 S.E.2d 405, 409 (2022); State v. Tarlton, 279 N.C. App. 249, 253, 864 S.E.2d 810, 813 (2021); State v. Brantley-Phillips, 278 N.C. App. 279, 287, 862 S.E.2d 416, 422 (2021).

Thus, it appears our precedent, by "assuming without deciding," has intentionally avoided making a ruling on the preservation of fatal variance issues through general motions to dismiss based on sufficiency of the evidence. Nonetheless, these decisions all effectively require subsequent panels of this Court, under similar circumstances, to address the merits of a defendant’s fatal variance argument as a properly preserved sufficiency of the evidence issue.

[8] In the instant case, Defendant made a general motion to dismiss based on sufficiency of the evidence at the close of the State’s evidence. Defendant renewed her motion at the close of all evidence. Because Defendant timely moved to dismiss pursuant to Rule 10(a)(3), we, in an effort to stop proverbially kicking the can down the road, explicitly hold her fatal variance arguments, pertaining to the motion to dismiss, are properly preserved sufficiency of the evidence issues.

Having held Defendant’s fatal variance argument as to her motion to dismiss was preserved, we address her first contention, in which she argues: The trial court erred in denying her motion to dismiss the charge of assault on an EMT, in violation of N.C. Gen. Stat. § 14-34.6, as a fatal variance occurred where the State exclusively presented evidence tending to show the victim was a paramedic at the time of the incident rather than an EMT.

[9–11] This Court reviews issues concerning the existence of a fatal variance de novo. State v. Clagon, 279 N.C. App. 425, 431, 865 S.E.2d 343, 347 (2021). Moreover, we generally review motions to dismiss de novo to determine whether, in the light most favorable to the State, "there was substantial evidence (1) of each essential element of the offense charged, and (2) that [the] defendant is the perpetrator of the offense." State v. Collins, 283 N.C. App. 458, 465, 874 S.E.2d 210, 215 (2022) (internal marks and citations omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to...