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State v. Snyder4/18/1995
LEWIS, Judge.
Defendant was convicted 19 November 1993 of driving while impaired (DWI), habitual impaired driving, and being an habitual felon.
The evidence presented at trial shows that on 11 May 1993 Officer Long of the Greensboro Police Department responded to a call that there was a disturbance caused by a man with a knife at Lost Dimensions Nightclub (hereinafter "club"). When he arrived at the club, the officer was told by the manager that the man causing the disturbance was driving a beige station wagon in the club parking lot. The officer stopped the vehicle being driven by defendant in the parking lot. After defendant failed several sobriety tests, Officer Long arrested and charged him with driving while impaired.
The club parking lot connects with an adjacent motel parking lot. Members of the public are welcome to drop in and check out the club and to enter the lobby. The lot is the exclusive property of the club whose policy prohibits use of the lot by persons other than members or their guests who are only allowed to park in the lot while in the club and may not park there overnight.
Defendant was indicted by a grand jury on 7 June 1993 for DWI, habitual impaired driving, and being an habitual felon. A single indictment was issued for the DWI and habitual impaired driving charges (hereinafter "felony DWI indictment"). Count I of this indictment charged that defendant "unlawfully, willfully did operate a motor vehicle on a street or highway while subject to an impairing substance" on 12 May 1993. Count II of this indictment, incorporating Count I by reference, charged defendant with the habitual impaired driving felony. The habitual felon charge was issued in a separate indictment that was based on the habitual impaired driving charge.
At the close of the State's evidence, defendant, who offered no evidence, moved to dismiss all charges on the grounds that the State had not offered sufficient evidence that defendant drove on a street or highway as charged in the felony DWI indictment. The State then moved to amend this indictment to read "on a highway or public vehicular area." The court granted the State's motion to amend the felony DWI indictment over defendant's objection, and denied defendant's motion to dismiss. Judgment was entered against defendant on all charges, and he was sentenced to forty years in prison.
On appeal, defendant contends that the court erred by (1) granting the State's motion to amend the felony DWI indictment to include the allegation that defendant drove on a public vehicular area, (2) denying defendant's motion to dismiss, and (3) instructing the jury that the parking lot of the club is a public vehicular area as a matter of law.
As to numbers (1) and (2): defendant contends that the amendment of the indictment to add "public vehicular area" substantially altered the charge depriving him of the right to be tried for a felony upon a valid bill of indictment returned by a grand jury. We agree and hold that the judgment and commitment of defendant for driving while impaired, for habitual impaired driving, and with being an habitual felon is arrested.
A valid bill of indictment is essential to jurisdiction of the superior court to try an accused for a felony. State v. Abraham, 338 N.C. 315, 339, 451 S.E.2d 131, 143-44 (1994). This right to an indictment is guaranteed by our North Carolina Constitution. N.C. Const. art. I, § 22. An indictment that charges a statutory offense must allege all essential elements of the offense. State v. Crabtree, 286 N.C. 541, 544,
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