State v. Gayton-Barbosa

Decision Date19 May 2009
Docket NumberNo. COA08-863.,COA08-863.
Citation676 S.E.2d 586
PartiesSTATE of North Carolina v. Juan Pablo GAYTON-BARBOSA.
CourtNorth Carolina Court of Appeals

Sue Genrich Berry, Wilmington, for defendant-appellant.

HUNTER, ROBERT C., Judge.

Defendant appeals from multiple felony convictions pursuant to a jury trial in Wake County Superior Court. After careful review, we find no error in part, vacate in part, and remand for resentencing.

Background

Juan Pablo Gayton-Barbosa ("defendant") was brought to trial on 23 January 2008 on the following charges: 1) assault with a deadly weapon with the intent to kill inflicting serious injury through use of a handgun; 2) assault with a deadly weapon inflicting serious injury through use of a baseball bat; 3) felonious breaking or entering; 4) felonious larceny; 5) first degree kidnapping; and 6) possession of a firearm by a convicted felon. Defendant was convicted of all charges on 25 January 2008. Defendant now appeals.

At trial, the State's evidence tended to show that on 6 December 2004, defendant unlawfully entered the home of his former employer, Brandi Leggett ("Leggett"), where she resided with Natasha Minear ("Minear") and Minear's daughter, Madeline Minear ("Madeline"). While defendant waited in the house alone, Minear and Madeline returned home in the early evening. As Minear approached her closed bedroom door, defendant emerged with a bat and a gun, screaming for Leggett. Defendant began striking Minear in the head with a baseball bat. Minear yelled for her daughter to get out of the house and run. Madeline ran to the house of the nearest neighbor, Susan Schaler ("Schaler"), approximately a quarter mile away and told Schaler to call the police.

During the beating, Minear was able to break away from defendant and ran out of the house. Defendant caught her at the bottom of the porch steps, turned her around, and shot her.1 Minear lost consciousness for an unspecified period of time, and when she regained consciousness, she made her way to Schaler's house. Minear estimated that the attack lasted fifteen minutes.

Emergency services and law enforcement arrived and transported Minear to the hospital, where she had exploratory surgery to ascertain internal damage from the gunshot wound. Minear remained in the hospital for two weeks.

There was no evidence of a forced entry into the house; however, Madeline's baseball bat was missing as well as Leggett's Smith and Wesson .38 caliber revolver.2 Arrest warrants were issued for defendant, but he was not apprehended for two years. On 11 June 2007, Raleigh police officers stopped defendant's car due to lack of an operator's license. He was then arrested and served with the outstanding warrants.

At trial, defendant testified that he and Leggett had a personal and sexual relationship. He claimed that Minear was jealous of that relationship. Defendant stated that on 6 December 2004, he went to the women's home to give Leggett money for the purpose of renting equipment to clear land belonging to Leggett. Defendant claimed that he was on the property when he saw Minear and Madeline go inside the house. He then entered the house and asked Minear where he could find Leggett. Minear then told defendant that Leggett would be back in thirty minutes, and then she went into her bedroom. She returned with a gun and told defendant that he could no longer be with Leggett. Defendant then picked up a baseball bat and hit Minear to force her to drop her weapon. The two struggled over the gun and it discharged twice. The struggle continued outside; defendant struck Minear again with the bat, and the gun discharged. Defendant then ran away. Defendant stated that because he was an undocumented alien, he was afraid of deportation. He subsequently changed his name and continued to work construction in Raleigh until he was apprehended by police.

Analysis
I.

Defendant first argues that the conviction of felonious larceny of the gun used in the attack should be vacated because the indictment erroneously alleged that the gun belonged to Minear, while the evidence at trial tended to show that the gun belonged to Leggett, though it was kept in a bedroom occupied by both women. Defendant did not object to the indictment at trial, nor did he make a motion to dismiss at the close of evidence based on a fatal variance in the indictment.3

"The issue of variance between the indictment and proof is properly raised by a motion to dismiss" and a defendant "waive[s] his right to raise this issue by failing to raise the issue at trial." State v. Baldwin, 117 N.C.App. 713, 717, 453 S.E.2d 193, 195 (1995), disc. review denied, 341 N.C. 653, 462 S.E.2d 518 (1995); see also State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971) ("A motion to dismiss is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged."); State v. McGee, 175 N.C.App. 586, 588, 623 S.E.2d at 783, 784, disc. review denied, 360 N.C. 489, 632 S.E.2d 768, appeal dismissed and disc. review denied, 360 N.C. 542, 634 S.E.2d 891 (2006).

Although defendant challenged the sufficiency of the evidence to support a felonious larceny conviction at the end of the State's evidence on the grounds that there was no evidence that the firearm in question was not returned to the owner, he never renewed this argument or advanced any other challenge to the felonious larceny charge at trial. As a result, by failing to challenge the sufficiency of the evidence to support a larceny conviction at the end of all of the evidence or to argue that the State's proof at trial varied from the allegations of the felonious larceny indictment returned against him in File No. 07 CRS 41987, defendant waived his right to have this Court consider his variance claim on appeal. See N.C.R.App. P. 10(b)(1) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context."); N.C.R.App. P. 10(b)(3) (A "defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial."). Thus, the next issue that needs to be addressed is the extent, if any, to which the Court is entitled to address this variance-based challenge to defendant's felonious larceny conviction on the merits despite the absence of a contemporaneous objection at trial.

In State v. Brown, 263 N.C. 786, 787-88, 140 S.E.2d 413, 413 (1965), the Supreme Court granted relief on appeal as the result of a fatal variance relating to the ownership of allegedly stolen property despite the fact that no dismissal motion had been made at trial and that the variance issue had not been the subject of an assignment of error on appeal. Even so, the Supreme Court decided this issue on the merits under its general supervisory authority over the trial courts. The general supervisory authority under which the Supreme Court acted in Brown is currently embodied in N.C.R.App. P. Rule 2, which authorizes "either court of the appellate division" to "suspend or vary the requirements or provisions of any of these rules. ..." Although N.C.R.App. P. Rule 2 is available to prevent "manifest injustice," the Supreme Court has stated that this residual power to vary the default provisions of the appellate procedure rules should only be invoked rarely and in "exceptional circumstances." State v. Hart, 361 N.C. 309, 316-17, 644 S.E.2d 201, 205-06 (2007); see also Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008). After careful consideration, we will reach the merits of defendant's variance-based claim under N.C.R.App. P. 2 for several reasons.

First, the Supreme Court's decision in Brown suggests that fatal variances of the type present here are sufficiently serious to justify the exercise of our authority under N.C.R.App. P. 2. Such a result makes sense given the important notice and double jeopardy protections provided by criminal pleadings such as indictments. Secondly, a variance-based challenge is, essentially, a contention that the evidence is insufficient to support a conviction. The Supreme Court and this Court have regularly invoked N.C.R.App. P. 2 in order to address challenges to the sufficiency of the evidence to support a conviction. State v. Booher, 305 N.C. 554, 564, 290 S.E.2d 561, 566 (1982) ("Nevertheless, when this Court firmly concludes, as it has here, that the evidence is insufficient to sustain a criminal conviction, even on a legal theory different from that argued, it will not hesitate to reverse the conviction sua sponte, in order to `prevent manifest injustice to a party.'" (quoting N.C.R.App. P. 2)); see also State v. Hudson, 345 N.C. 729, 732, 483 S.E.2d 436, 438 (1997); State v. Denny, 179 N.C.App. 822, 825-26, 635 S.E.2d 438, 441-42 (2006), aff'd in part and rev'd in part on other grounds, 361 N.C. 662, 652 S.E.2d 212 (2007); State v. Richardson, 96 N.C.App. 270, 271, 385 S.E.2d 194, 195 (1989); State v. O'Neal, 77 N.C.App. 600, 604, 335 S.E.2d 920, 923 (1985).

Finally, it is difficult to contemplate a more "manifest injustice" to a convicted defendant than that which would result from sustaining a conviction that lacked adequate evidentiary support, particularly when leaving the error in question unaddressed has double jeopardy implications. Thus, given the peculiar facts of this case, it is appropriate to address defendant's variance-based challenge on the merits.4

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