Defendant appeals a judgment convicting him of incest, statutory rape, statutory sex offense, and indecent liberties with a child. Because Defendant was properly tried under superseding indictments, we conclude there was no error, though we remand for correction of a clerical error.
I. Procedural Background
The States evidence tended to show that Defendant was indicted for two counts of incest in File No. 20CRS000275 (“275”) and two counts of statutory rape and indecent liberties with a child in File No. 20CRS000276 (“276”), among other offenses. Defendants trial began on 3 January 2023, and that morning the State issued superseding indictments in both 275 and 276; the only change in the charges was the date range. In the original indictments, the dates of the offenses were from 5 December 2019 through 5 January 2020 but in the superseding indictments the dates were from 5 December 2019 through 25 January 2020.
Although Defendant made no specific motion or objection regarding the superseding indictments, Defendants counsel stated, “the only problem” was he had “not prepared any witnesses ․ [or] even [his] client regarding that date.” The State responded: (1) Defendant had notice of the dates due to the discovery materials from 9 December, produced over three weeks before the trial date, and (2) it had also informed Defendant about the superseding indictments a few days before the trial. Thereafter, the trial court stated Defendant should be served with the superseding indictments and the trial would begin the next day. The jury found Defendant guilty of all charges. The trial court entered judgments, and Defendant appeals.
II. Superseding Indictments
In Defendants brief, four-page argument, Defendant contends “the trial court erred by allowing the State to proceed to trial under the superseding indictment.” (Original in all caps.) The State responds to Defendants argument stating that “the trial court did not abuse its discretion in denying Defendants motion for a continuance” due to the superseding indictments. But Defendant makes no argument regarding a motion for continuance; in fact, his primary brief on appeal does not mention it at all.
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Furthermore, in Defendants reply brief, he specifically requests this Court not review the issue as a denial of a motion to continue. Accordingly, we will address the argument before us.
This Court reviews a trial courts granting of the States motion to amend an indictment de novo. A change of the date of the offense is permitted if the change does not substantially alter the offense as alleged in the indictment. Where time is not an essential element of the crime, an amendment relating to the date of the offense is permissible since the amendment would not substantially alter the charge set forth in the indictment.
State v. Pierce, 238 N.C. App. 141, 146, 766 S.E.2d 854, 858 (2014) (citations and quotation marks omitted). Defendant does not contend that “time” was an “essential element” of the crimes. See id. Defendant argues only that he was prejudiced by lack of adequate notice of the changed dates of the offenses.
The trial court explained its reasoning for allowing the superseding indictments, including that it was initially inclined to rule for Defendant:
[I]f we were to try this case and hes found guilty and I allow — and I dont allow his motion, that is going to be a major issue on appeal. And as an appellate judge, I can definitely see an appellate judge say, no, he was not given ample opportunity to prepare based upon the new date that was presented to the grand jury literally the day before trial. I understand.
But when the trial court questioned Defendant about receiving discovery about the relevant dates, including dates after 5 January 2020, Defendants counsel explained he received that notice over three weeks earlier, to which the trial court responded, “You had the discovery though. All right, Im going to change my mind. Im going to deny your motion based on that.” In other words, the trial court would not have allowed the superseding indictments if Defendant had not had adequate notice of the change in the dates, as he would need the opportunity to present alibi witnesses or other evidence addressing the specific dates. But because Defendant had three weeks prior notice of the additional dates, and the State had later informed him it would seek superseding indictments, the trial court allowed the superseding indictments. Defendant did not argue to the trial court or to this Court that additional notice, beyond the three weeks, would have made any difference in his preparation for trial. Defendants only argument on appeal is that he was prejudiced by lack of advance notice as to the dates, but he has failed to demonstrate prejudice on this basis. See State v. Wallace, 179 N.C. App. 710, 718, 635 S.E.2d 455, 461 (2006) (concluding there was no error to an amended indictment where the “[d]efendant was provided sufficient notice to present an alibi or reverse alibi defense”). Accordingly, we conclude there was no error.
III. Clerical Error
Defendants only other issue on appeal is noting three clerical errors in the judgment which the State concedes and also requests remand of these judgments. Accordingly, we remand file numbers 20CRS000275, -76, -78, for as the State notes, the “multiple clerical errors” within them, including (1) “file numbers 275, 277, and 278 run concurrently with count II in file number 276[;]” (2) “file number 275 and 276 should show a date of January 2020[;]” and (3) file number 275 should be noted as a Class B1 felony rather than Class F.
IV. Conclusion
Because the trial court did not err in allowing the State to proceed under the superseding indictments, we conclude there was no error but remand judgments 20CRS000275, -76, and -78 for correction of clerical errors.
NO ERROR and REMANDED IN PART.
Report per Rule 30(e).
FOOTNOTES
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. On 4 January 2023, Defendants counsel “renew[ed] the motion to continue” although the record and transcript do not show any motion to continue was made on the prior day. Furthermore, even if a motion had been made, Defendant does not address the denial of a motion to continue in his brief but argues only that the indictments with the revised dates should be vacated due to the trial courts error in allowing the State to amend them.
STROUD, Judge.
Chief Judge DILLON and Judge STADING concur.