State v. Norman

• Decision Date: 02 April 2002
• Docket Number: No. COA01-582.,COA01-582.
• Parties: STATE of North Carolina v. Gregory NORMAN.
• Court: North Carolina Court of Appeals

562 S.E.2d 453

149 NC App. 588

STATE of North Carolina v. Gregory NORMAN.

No. COA01-582.

Court of Appeals of North Carolina.

April 2, 2002.

Attorney General Roy A. Cooper, III, by Assistant Attorney General William R. Miller, for the State.

J. Clark Fischer, Winston-Salem for defendant-appellant.

HUNTER, Judge.

Gregory Norman ("defendant") appeals from a judgment entered upon a verdict of guilty on the charges of felonious breaking and entering, felonious larceny, resisting arrest, assault upon an officer, and habitual felon. On appeal, defendant argues that the charges of felonious breaking and entering and felonious larceny should have been dismissed due to an insufficient indictment and due to a fatal variance between the indictment and the evidence at trial. Defendant also assigns error to the trial court's admission of certain evidence at trial. We vacate the judgment on the charge of felonious larceny, hold there was no error in the judgment on the remaining charges, and remand for resentencing.

The evidence at trial tended to show that on the evening of 19 July 2000, defendant, who was intoxicated at the time, forcibly entered a trailer belonging to a company called "Quail Run Homes" by breaking a window on the trailer. At the time, the trailer was on display for sale at the company's display lot, and it was unoccupied. At some subsequent point in time that same evening or very early the next morning, Officer M.J. Snow of the Winston Salem Police Department was walking by the trailer with a police dog and saw the door to the trailer open and then quickly close. After about ten seconds, the door opened again and defendant stood in the doorway holding two electric lamps, one under each arm. Officer Snow ordered defendant to come out of the trailer, but defendant remained in the trailer and closed the door. Defendant then opened a different door at the back of the trailer and told Officer Snow he would come out if Officer Snow would restrain his police dog. When defendant exited the trailer, Officer Snow ordered him to lie on the ground, but defendant continued to walk away from the officer. As defendant approached his own car, which was parked close to the trailer, Officer Snow sprayed defendant with pepper spray. Defendant grabbed Officer Snow and pushed him, at which point the police dog attacked defendant, knocked him to the ground, and Officer Snow placed him under arrest. Subsequent to defendant's arrest, Officer Snow inspected the trailer and discovered a broken window and pry marks on a door. He also found the two electric lamps which were still inside the trailer.

Defendant was indicted and tried on five charges: (1) felonious breaking and entering, pursuant to N.C. Gen.Stat. § 14-54(a) (1999); (2) felonious larceny, pursuant to N.C. Gen. Stat. § 14-72(b)(2) (1999); (3) resisting an officer, pursuant to N.C. Gen.Stat. § 14-223 (1999) (misdemeanor); (4) assaulting an officer, pursuant to N.C. Gen.Stat. § 14-33(c)(4) (1999) (misdemeanor); and (5) being an habitual felon, pursuant to N.C. Gen.Stat. § 14-7.1 (1999). At the close of the State's evidence, and again at the close of all the evidence, defendant moved to dismiss the charges of felonious breaking and entering and felonious larceny, which motions were denied. Defendant was found guilty on all charges and sentenced to 80 to 105 months in prison. Defendant appeals.

On appeal, defendant presents two arguments for our review. The first argument pertains to the trial court's denial of defendant's motion to dismiss. The second argument pertains to the admission of certain evidence.

I.

Defendant first argues that his motion to dismiss should have been granted as to the charges of felonious breaking and entering and felonious larceny. Defendant presents two independent grounds to support this argument: (1) the indictment, on its face, is insufficient in specifying the ownership of the property that was the subject of the crime; and (2) there was a fatal variance between the indictment and the evidence presented at trial.

We first note that defendant's motion to dismiss was not, in fact, based upon the contention that the indictment is insufficient on its face. Rather, the motion to dismiss was based solely upon the grounds that there existed a fatal variance between the indictment and the evidence presented at trial. However, a defendant on appeal may challenge an indictment on the grounds that the indictment is insufficient to support the offense of which defendant was convicted, even when the defendant failed to challenge the indictment on this basis at trial. State v. Wilson, 128 N.C.App. 688, 691, 497 S.E.2d 416, 419, disc. review improvidently allowed, 349 N.C. 289, 507 S.E.2d 38 (1998). Thus, we review both grounds upon which defendant contends his motion to dismiss should have been granted.

A. Sufficiency of the Indictment

Defendant contends that the motion to dismiss should have been granted as to the charges of felonious breaking and entering and felonious larceny because the indictment, on its face, is insufficient in specifying the ownership of the property that was the subject of the crime. With regard to the felonious breaking and entering charge, defendant's argument is without merit.

Defendant was convicted of felonious breaking and entering, pursuant to N.C. Gen.Stat. § 14-54(a) ("[a]ny person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon"). As to the building itself, it was not necessary that the indictment allege ownership of the building; it was only necessary that the State "identify the building with reasonable particularity so as to enable the defendant to prepare his defense and plead his conviction or acquittal as a bar to further prosecution for the same offense." State v. Carroll, 10 N.C.App. 143, 145, 178 S.E.2d 10, 12 (1970). Ideally, an indictment for violation of N.C. Gen.Stat. § 14-54 should "identify the subject premises by street address, highway address, or other clear designation." State v. Melton, 7 N.C.App. 721, 724, 173 S.E.2d 610, 613 (1970). Here, the indictment alleged that defendant did break and enter a building occupied by Quail Run Homes located at 4207 North Patterson Avenue in Winston Salem, North Carolina. Thus, the particularity with which the indictment identified the building was sufficient.

As to the ownership of the property defendant intended to steal, it is well established that, where a defendant is charged with breaking and entering with felonious intent to steal,

neither the identification of the owner of the personal property sought to be stolen nor the accomplishment of the felonious intent is a prerequisite of guilt. A person is guilty of feloniously breaking and entering a dwelling house if he unlawful[ly] breaks and enters such dwelling house with the intent to steal personal property located therein without reference to the ownership thereof.

State v. Thompson, 280 N.C. 202, 214-15, 185 S.E.2d 666, 674 (1972). For example, in State v. Crawford, 3 N.C.App. 337, 164 S.E.2d 625 (1968), the defendant argued that his motion for judgment as of nonsuit should have been allowed because the bill of indictment charged the crime of feloniously breaking and entering a certain building with intent to steal, pursuant to N.C. Gen.Stat. § 14-54, without identifying the ownership of the property the defendant allegedly intended to steal. We rejected the defendant's argument based upon the following reasoning:

In the instant case, it was incumbent upon the State to establish that, at the time the defendant broke and entered, he intended to steal something. However, it was not incumbent upon the State to establish the ownership of the property which he intended to steal, the particular ownership being immaterial.

Id. at 341, 164 S.E.2d at 628. Thus, in the present case, it was not necessary that the indictment set forth the ownership of the property that defendant intended to steal.

However, as to the larceny charge, we are compelled to agree with defendant that the indictment is insufficient. Any crime that occurs when a defendant offends the ownership rights of another, such as conversion, larceny, or embezzlement,

requires proof that someone other than a defendant owned the relevant property. Because the State is required to prove ownership, a proper indictment must identify as victim a legal entity capable of owning property. An indictment that insufficiently alleges the identity of the victim is fatally defective and cannot support conviction of either a misdemeanor or a felony.

State v. Woody, 132 N.C.App. 788, 790, 513 S.E.2d 801, 803 (1999). Furthermore, where the victim is not an individual, the indictment must allege that the victim was "a legal entity capable of owning property." Id. at 790, 513 S.E.2d at 803. If the indictment fails to so allege, it is "fatally defective." Id.

Here, the indictment alleges that defendant did "steal, take and carry away 2 electric lamps, the personal property of Quail Run Homes Ross Dotson, Agent, such property having a value of $40.00." Because the indictment lacks any indication of the legal ownership status of the victim (such as identifying the victim as a natural person or a corporation), it is fatally defective and cannot support defendant's conviction. See State v. Thornton, 251 N.C. 658, 111 S.E.2d 901 (1960)

(indictment alleging defendant embezzled from "The Chuck Wagon" fatally defective for failing to allege fact that victim was corporation since name itself did not import a corporation); State v. Thompson, 6 N.C.App. 64, 169 S.E.2d 241 (1969) (same result where indictment alleged defendant committed larceny of property owned by "Belk's Department Store"). Accordingly, the judgment on the charge of felonious larceny pursuant to N.C. Gen.Stat. § 14-72(b)(2) must be vacated.

B. Fatal Variance

Defendant also contends that his motion to dismiss should...