State v. Clagon, ___ N.C. App. ___, 2021-NCCOA-497 (Sept. 21, 2021)

In this intimidating a witness case, the indictment alleged that the defendant told one person, Derstine, to tell another, Ramos, that the defendant would have Ramos deported if he testified against the defendant.  Evidence at trial tended to show that Ramos did not actually receive this message.  The court explained that while this was a variance between the indictment and the proof at trial, the variance did not relate to “the gist” of the offense of intimidating a witness, an offense concerned with “the obstruction of justice.”  The court cited North Carolina case law establishing that whether a witness actually receives the threatening communication at issue is “irrelevant” to the crime of intimidating a witness, and, thus, the language of the indictment was mere surplusage.  The court went on to determine that even if there was error in the trial court’s jury instruction on intimidating a witness, which did not deviate from the pattern jury instruction or from the instruction agreed upon by the parties, any such error was harmless as there was no reasonable likelihood that the alleged deviation misled the jury.

The State conceded that restitution ordered by the trial court lacked an evidentiary basis and the court remanded for a rehearing on the issue.