--- Am. Tribal Law ----, 2017 WL 924271 (Eastern Cherokee Ct.)
Cherokee Court of the Eastern Band of Cherokee Indians.
CSC 15-03
MARCH 3, 2017
FILE NO. 15CR 0951

Attorneys and Law Firms
Sheena M. Meader, for appellee.
Frank Lay, for defendant-appellant.


Robert C. Hunter

Appeal by Defendant from judgment entered 19 August 2015, by Judge James Baker in Cherokee Court. Heard in the Cherokee Supreme Court on 21 October 2016.

HUNTER, Justice.


I. Background

The Tribe alleged that on 2 May 2015, Daryl Martin (“Defendant”) committed several acts of domestic violence, against Jackie Bradley (“Victim”). The trial court conducted a hearing on these allegations on 23 June 2015. Pursuant to a plea agreement, Defendant plead no contest to one charge of attempted infliction of emotional distress and entered into a Deferred Judgment Agreement (“Agreement”) where Defendant was placed on unsupervised probation for a period of six months. [Appellee’s Brief at 7] [R at 55; T at 195, 97] The Agreement imposed certain additional conditions on Defendant, including unsupervised probation and attending batterer’s treatment. [Appellant’s Brief at 1; T at 196] At Victim’s request, the Agreement allowed for peaceful contact between Defendant and Victim, and Defendant was ordered not to assault, threaten, or harass Victim. [T at 194; Appellant’s Brief at 1]

Following the hearing on 23 June 2015, Victim moved back into Defendant’s house, where both parties resided until 13 July 2015, at which time Victim moved out of Defendant’s house. [T at 24; R at 29-30] On 7 August 2015, Victim filed a Complaint and Motion for Domestic Violence Protective Order, alleging conduct that constituted multiple violations of the Deferred Judgment Agreement. [R at 27-30] A magistrate granted Victim’s Motion and issued a Domestic Violence Protective Order (“DVPO”) that same day. [R at 23-26]

Subsequent to the issuance of the DVPO, the Tribe filed a written Motion to Enter Judgment (“Motion”), alleging that Defendant committed three violations of the Agreement. [Appellant’s Brief at 1] Only two of the alleged violations in the motion are relevant to this proceeding and they are set forth below:
1. On August 3, 2015, the defendant committed acts of domestic violence against the victim in violation of the Deferral Judgment, by attempting to cause or causing emotional distress.
3. The Defendant was Ordered not to threaten, assault, or harass the victim and to engage only in peaceful contact with her. As stated in #1 above, the defendant has harassed the victim and has had contact with her that was not peaceful.
[Appellant’s Brief at 1-2] The trial court heard evidence pertaining to the Tribe’s Motion on 18 and 19 August 2015. [Appellant’s Brief at 1] At the close of the Tribe’s evidence, Defendant moved to dismiss the action for insufficient evidence, which the trial court denied. [R at 50; T at 147] Defendant did not renew his motion to dismiss at the close of defense evidence. [R at 52; T at 178]

After hearing all the evidence presented, the trial court found that there “were numerous events after June 23rd through the last contact between the parties that would constitute a violation of the terms and conditions of the deferred judgment which the Court entered on June 23rd.” [T at 195] The trial court entered a judgment on 19 August 2015, and sentenced Defendant to 12 months imprisonment and two years’ supervised probation. Defendant appeals from the judgment.


II. Analysis

Defendant first contends that the trial court erred by considering evidence outside the scope of the specific allegations within the Tribe’s Motion to Enter Judgment. More specifically, Defendant argues that the Motion “serves the substantially similar purpose of placing the [Defendant on notice of his alleged conduct, with sufficient specificity to allow him to prepare a defense.” [Appellant’s Brief at 2] As a result, the trial court’s consideration of evidence outside the scope of the Motion prejudiced Defendant and left him incapable of preparing an adequate defense, in that he was unable to investigate or otherwise adequately prepare for the “unexpected dates and allegations.” For the reasons that follow, we agree that the variance between the date of the alleged offenses in the Tribe’s Motion and the evidence presented at the hearing prejudiced Defendant in his ability to present a defense.

As an initial note, this issue appears to be one of first impression for the Cherokee Supreme Court. Cherokee Code (“C.C.”) Ch. 14 § 14-40.1(m) (2016), provides that a trial court may defer sentencing of a perpetrator of domestic violence if certain conditions are met. If the perpetrator meets all conditions of a deferred sentence, the case against him may be dismissed. Currently, there is no express Cherokee Code Section or Cherokee Rule of Criminal Procedure specifically applicable to a hearing on a Motion to Enter Judgment resulting from violations of a deferred judgment under C.C. § 14-40.1(m). However, we believe the hearing on the Tribe’s Motion is analogous to a probation revocation hearing and the Motion itself serves the same purpose as a traditional charging instrument, which is to place the defendant on notice of his alleged conduct and allow him to prepare a defense. As such, we will evaluate Defendant’s arguments within this framework.

Although not binding, the Court finds it persuasive that under North Carolina case law, “[a]n indictment must include a designated date or period of time within which the alleged offense occurred.” State v. Stewart, 353 N.C. 516, 517, 546 S.E.2d 568, 569 (2001). However, a judgment should not be reversed when an indictment states an incorrect date, unless time was of the essence of the offense and “the error or omission did not mislead the defendant to his prejudice.” Id. Generally, “[a] variance as to time ... becomes material and of the essence when it deprives a defendant of an opportunity to adequately present his defense,” such as when a defendant seeks to rely on an alibi defense. State v. Price, 310 N.C. 596, 599, 313 S.E.2d 556, 559 (1984). There are certain circumstances when a time variance does not prejudice a defendant, even when an alibi defense is involved, such as “when the allegations and proof substantially correspond,” or “when defendant presents alibi evidence relating to neither the date charged nor the date shown by the State’s evidence.” State v. Booth, 92 N.C. App. 729, 731, 376 S.E.2d 242, 244 (1989). However, when “the defendant relies on the date set forth in the indictment to prepare his defense, and the evidence produced by the State substantially varies to the prejudice of the defendant, defendant’s motion to dismiss must be granted.” Stewart, 353 N.C. at 518, 546 S.E.2d at 569.

We further believe the case before this Court is analogous to the case of State v. Christopher. In Christopher, the indictment alleged that the defendant had conspired to commit felonious larceny and feloniously received stolen goods “on or about the 12th day of December, 1980.” State v. Christopher, 307 N.C. 645, 648, 300 S.E.2d 381, 383 (1983). Based on the indictment, the defendant prepared an alibi defense for that date. At trial, the State offered no evidence of any criminal activity taking place on 12 December 1980. Instead, the State’s evidence tended to show that the defendant’s alleged crimes took place “sometime in October or November and in December.” Id. “As a result, the defendant came to trial prepared to defend his innocence of a crime alleged to have happened around 12 December 1980 and was forced to defend his innocence of a crime which might have occurred over a three month[ ] period from October 1980 to January 1981.” Id. at 648-49, 300 S.E.2d at 383. The wide ranging discrepancies in Christopher, between the indictment and the State’s evidence at trial, essentially amounted to trial by ambush and was sufficient to constitute prejudicial error.

Here, the Tribe’s Motion specifically alleged that Defendant committed acts of domestic violence against and harassed Victim on 3 August 2015. At the hearing on the Tribe’s Motion, the trial court allowed the Tribe to present evidence spanning a period of several months. However, there was no evidence of these acts occurring on 3 August 2015. Furthermore, because alleged violation #3 in the Tribe’s Motion relates to alleged violation #1, the date set forth in violation #1 controls both alleged violations.

Defendant clearly relied on the date set forth in the Motion, in that he came to trial prepared to present an alibi defense based on text messages and other evidence establishing that he had no contact with Victim on 3 August 2015 and, therefore, was not in violation of his Deferred Judgment Agreement. At the hearing on the Tribe’s Motion, the court allowed Victim to testify about events ranging from 5 May 2015 through the date of the hearing, on 18 August 2015. As a result, Defendant “was forced to defend his actions over a period of time much greater than the time specified in the indictment. Such a disparity in the dates alleged and the dates supported by the evidence at [the hearing] ... leads to prejudicial error.” Id. at 650, 300 S.E.2d at 384. Thus, we reverse the trial court’s decision and remand based on a variance in the time alleged in the Tribe’s Motion and the evidence presented, and grant Defendant a new hearing on any Motion to Enter Judgment. As a result, we need not address Defendant’s other argument.


Brenda Toineeta Pipestem, Acting Chief Justice

Bradley B. Letts, Associate Justice

All Citations
--- Am. Tribal Law ----, 2017 WL 924271