State v. Lytle, No. COA09-1427 (N.C. App. 6/15/2010)
| Decision Date | 15 June 2010 |
| Docket Number | No. COA09-1427.,COA09-1427. |
| Parties | STATE OF NORTH CAROLINA, v. TERRENCE WAYNE LYTLE. |
| Court | North Carolina Court of Appeals |
L. Jayne Stowers, for defendant-appellant.
UNPUBLISHED OPINION
Terrence Wayne Lytle ("defendant") appeals judgments entered upon jury verdicts finding him guilty of felonious possession of stolen goods, two counts of breaking and entering, three counts of felonious larceny, and attaining the status of an habitual felon. We find no error.
On 30 January 2008 at approximately 9:30 a.m., James C. Ransdell ("Ransdell") drove by his farm property on Dwight Rowland Road in Fuquay-Varina, Wake County, North Carolina. As he was driving by the property, he saw a red Ford pickup truck parked behind a barn near his office building during a time when "[n]ormally there is nobody up there." Ransdell first noted that the truck was "out of place," especially considering the house on the property was unoccupied, no farming activity took place on the property in January, and two "no trespassing signs" were posted at the entrance to the property. Ransdell also saw a man, later identified as defendant, exiting the office building. Defendant did not have permission to be on Ransdell's property. As Ransdell approached, defendant "started forward . . . in a fast pace . . . jumped in his truck [and] took off." Ransdell contacted the Wake County Sheriff's Department ("WCSD") and provided them with the truck's license plate number. When law enforcement officers arrived at the property, Ransdell and the officers discovered the office door had been "jimmied" open with a screwdriver or similar device. Ransdell entered the office building and discovered that his replica revolver was missing.
Later that same day, at approximately 4:30 p.m., James Linden Stephenson ("Stephenson") arrived at his home at 7128 Mount Pleasant Road in Willow Springs, North Carolina. Stephenson noticed that his garage door "opened funny and pried up." Stephenson then observed that the back door of his home had been kicked open and a red Ford pickup truck was in his garage. Stephenson noticed that his gray 2000 Silverado pickup truck, which had been parked in his driveway, was missing along with tools and compact discs Stephenson kept inside the truck. He then contacted the WCSD. When the officers arrived, Stephenson accompanied the officers, searched the house, and discovered that Stephenson's Colt.380 semiautomatic handgun was missing, along with, inter alia, his daughter's laptop computer, jewelry, and sunglasses. Neither Stephenson nor his daughter gave anyone permission to enter their home to borrow or take any of the missing items.
At approximately 8:45 p.m. that evening, Detective Ben Farrell ("Detective Farrell") and Officer Whitehurst of the Morrisville Police Department ("MPD") responded to a 911 call directing them to the Extended Stay America hotel ("the hotel") in Morrisville, North Carolina. When Detective Farrell entered the lobby, a man identified as Mr. Morrison ("Morrison") approached him and told him that a man, later identified as defendant, was staying with him in the hotel room. Morrison stated that when he returned from work that day, he discovered defendant "had personal property that he didn't have that morning." Morrison believed the property did not belong to anyone in the room. Morrison gave his consent for Detective Farrell and Officer Whitehurst to enter the hotel room and investigate further.
When Detective Farrell entered the room, he saw defendant sitting in a chair. Detective Farrell identified himself and told defendant that he was investigating the ownership of items in the room. Detective Farrell asked defendant whether there were any items in the room that did not belong to him. Defendant said "yes," then produced a laptop computer with power cords. Detective Farrell asked defendant to help him find the owner of the property so that it could be returned. Defendant then "dropped his head" and stated, Detective Farrell also asked defendant if any other property in the room beside the laptop did not belong to him. Defendant replied in the affirmative and produced jewelry, a set of car keys, tools, and compact discs.
Defendant was arrested and indicted on three counts of felonious larceny, two counts of felonious breaking and entering, and possession of stolen goods. Defendant was subsequently indicted on the charge of attaining the status of an habitual felon for prior felony judgments. On 13 October 2008, following a hearing, the trial court granted defendant's motion to allow him to proceed pro se, and appointed James Bell as standby counsel.
On 23 December 2008, defendant filed a motion to dismiss the indictments "on grounds of fatal variance." On 24 December 2008, defendant filed a "Subpoena," "Request for Production of Documents by Subpoena," and subsequently a "Motion to Compel Subpoena," attempting to obtain his mental health records from Dorothea Dix Hospital, Johnston County Mental Health, Johnston County Jail, the North Carolina Department of Correction ("DOC"), Nash County Jail, and Wake County Jail. At a hearing on 13 February 2009, defendant denied being incompetent, but informed the trial court that he had psychotic tendencies.
At a pre-trial hearing on 20 February 2009, various motions made by defendant, his standby counsel, James Bell, and the State were heard by the trial court. The trial court granted defendant's request for production of his mental health records, involuntary commitments, in-patient and out-patient records. In addition, the trial court ordered all of the appropriate agencies to produce the records on or before 16 March 2009.
Defendant's case was called for trial on 16 March 2009 in Wake County Criminal Superior Court. Defendant orally moved the trial court to continue the trial to subpoena a witness and to obtain the records that were ordered regarding his diminished capacity and other mitigating factors. The court denied defendant's motion. On 17 March 2009, defendant received all of the records he requested. The court also granted defendant's request to subpoena five witnesses to appear on his behalf on 19 March.
At trial, the State asked the court to view the addresses in the indictments for case numbers 08 CRS 6460 and 6461 as well as the description of the building as a "residence" in case number 08 CRS 6460 as surplusage, and then moved to amend the indictments. Defendant objected. On 18 March, after the State rested its case, the trial court granted the State's request to amend the indictments. However, the trial court denied defendant's motion to dismiss the charges based on insufficiency of the evidence. Defendant presented no evidence. Defendant again moved to dismiss the State's case due to the insufficiency of the evidence and the trial court denied defendant's motion. The trial court also denied defendant's previous 23 December 2008 motion to dismiss the indictments.
The jury returned verdicts finding defendant guilty on all charges. The court arrested judgment on the charge of possession of stolen property. The court consolidated judgment on the remaining charges and sentenced defendant as a Class C habitual felon to two consecutive terms of a minimum term of 120 months to a maximum term of 153 months in the custody of the DOC. Defendant appeals.
Defendant argues that the court erred in allowing the State to amend the indictments in case number 08 CRS 6460 and case number 08 CRS 6461 on the two counts of felonious breaking and entering, because the amendments constituted a fatal variance between the indictments and the evidence presented at trial. We disagree.
"Jurisdiction to try an accused for a felony depends upon a valid bill of indictment guaranteed by Article I, Section 22 of the North Carolina Constitution." State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996). A bill of indictment must contain:
A plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.
N.C. Gen. Stat. § 15A-924(a)(5) (2009).
Whether an indictment is sufficient on its face is a separate issue from whether there is a variance between the indictment and the evidence presented at trial, although both issues are based upon the same concerns. A variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial.
State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002) (citation omitted). "Nonetheless, both issues are based upon the same concerns: to insure that the defendant is able to prepare his defense against the crime with which he is charged, and to protect the defendant from another prosecution for the same incident." Id.
"In order for a variance [in an indictment] to warrant reversal, the variance must be material." Id. (citing State v. McDowell, 1 N.C. App. 361, 365, 161 S.E.2d 769, 771 (1968)). "A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged." Id. Further, "[a] bill of indictment may not be amended." N.C. Gen. Stat. § 15A-923(e) (2009). However, our Supreme Court has interpreted the term "amendment" under N.C. Gen. Stat. § 15A-923(e) to mean "any change in the indictment which would...
To continue reading
Request your trial