Alibi Defense Doesn't Mean the State Can't Amend the Offense Date

A criminal indictment must allege an offense date. G.S. 15A-924(a)(4) provides that a criminal pleading must contain “[a] statement or cross reference in each count indicating that the offense charged was committed on, or on or about, a designated date, or during a designated period of time.” The statutory short forms reiterate this requirement. See, e.g.,G.S. 15-144.1 (rape); G.S. 15-144.2 (sex offense). However, a judgment won’t be reversed when the indictment fails to allege or incorrectly alleges a date or time, if time is not of the essence of the offense and the error or omission did not mislead the defendant.See G.S. 15-155; G.S. 15A-924(a)(4); State v. Price, 310 N.C. 596, 599 (1984). Likewise, when time is not of the essence, an amendment as to date does not substantially alter the charge. Time becomes of the essence when an omission or error regarding the date deprives a defendant of an opportunity to adequately present his or her defense, Price, 310 N.C. at 599, and this can occur when the defendant relies on an alibi defense. See State v. Stewart, 353 N.C. 516, 518 (2001). The recent Court of Appeals case, State v. Avent, __ N.C. App. __, __ S.E.2d __ (Aug. 7, 2012), applies these rules. Avent was a murder case in which the indictment alleged an offense date of December 28, 2009. The trial court allowed the State to amend the date offense to December 27, 2009. After he was convicted, the defendant appealed arguing that because he raised an [...]