1. Larceny--felonious possession of stolen property--sufficiency of evidence
The trial court erred by convicting defendant for felonious possession of stolen property
instead of misdemeanor possession of stolen property based on the State's failure to introduce
sufficient evidence of the value of the stolen goods in defendant's possession, because: (1)
although the owner of the stolen property testified that the total estimated value of all stolen
items was $5,000, there is no evidence regarding the total value of the items contained in the trial
court's charge; and (2) the testimony of two pawn shop employees regarding the money they
loaned defendant for some of these stolen items is not sufficient evidence from which a jury
could determine to any certainty the value of the VCR, cameras, and photography equipment.
2. Indictment and Information--amendment--obtaining property by false pretenses--
non-essential variance
The trial court did not err by convicting defendant for two counts of obtaining property by
false pretenses even though the State amended the indictment to change the items listed that
defendant represented as his own from two cameras and photography equipment to a Magnavox
VCR, because: (1) the amendment was not a substantial alteration of the charge since the
description of the item or items which defendant falsely represented as his own is irrelevant to
proving all essential elements of the charge; and (2) the proof required to convict defendant
under the amended indictment was the same as that required by the original indictment.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General D. David Steinbock, for the State.
Paul M. Green for defendant-appellant.
HUNTER, Judge.
Juamane Rashod Parker (“defendant”) appeals convictions of
felonious possession of stolen property and two counts of obtaining
property by false pretenses. We vacate defendant's conviction for
felonious possession of stolen property and remand for entry of
judgment and re-sentencing on misdemeanor possession of stolenproperty. We find no error in defendant's convictions and sentence
for obtaining property by false pretenses.
On 28 April 1999, Pamela Goodman (“Goodman”) returned home
from work to discover she and her husband had been robbed. Various
items were stolen from the house, including VCRs and photography
equipment. Goodman gave a list of stolen items to the
investigating officer. Goodman estimated the total value of items
stolen to be $5,000.00. The police recovered three VCRs, two
cameras and a remote control that had been stolen from the Goodman
house. The items were recovered from a local pawn shop.
Melinda Mitchell (“Mitchell”), a pawn shop employee, testified
that she prepared a pawn ticket for defendant on 28 April 1999 in
which she loaned defendant $80.00 for a Minolta camera, a Canon
camera, a lens, and a flash unit and converter. Effie Hayes
(“Hayes”), also a pawn shop employee, testified that she prepared
a pawn ticket for defendant on 30 April 1999 in which she loaned
defendant $40.00 for a Magnavox VCR. Hayes testified that she
loaned defendant $40.00 based on the estimate that she could resell
the VCR for $80.00.
Defendant was charged with felonious possession of stolen
property and two counts of obtaining property by false pretenses,
based on his pawning of the stolen goods. On 2 August 2000, a jury
returned guilty verdicts on all charges. Based on his prior record
level, defendant was sentenced to prison for a minimum of twenty
months and a maximum of twenty-four months. Defendant appeals.
Defendant makes two arguments on appeal: (1) the evidence was
insufficient to support his conviction for felonious possession ofstolen property; and (2) the indictment charging defendant with
obtaining property by false pretenses was improperly amended. We
address each argument in turn.
[1]Defendant first argues that the evidence was insufficient
to support his conviction for felonious possession of stolen
property. Specifically, defendant argues the State failed to
present evidence from which the jury could conclude the value of
the items stolen by defendant was over $1,000.00. We agree.
A defendant may be found guilty of felonious possession of
stolen property where the State proves “(1) defendant was in
possession of personal property, (2) valued at greater than
[$1,000.00], (3) which has been stolen, (4) with the possessor
knowing or having reasonable grounds to believe the property was
stolen, and (5) with the possessor acting with dishonesty.” State
v. Brantley, 129 N.C. App. 725, 729, 501 S.E.2d 676, 679 (1998);
see also State v. Raynor, 128 N.C. App. 244, 251, 495 S.E.2d 176,
181 (1998).
In State v. Holland, 318 N.C. 602, 610, 350 S.E.2d 56, 61
(1986), overruled on other grounds, State v. Childress, 321 N.C.
226, 362 S.E.2d 263 (1987), our Supreme Court vacated the
defendant's conviction for felonious possession of stolen property
where the State failed to present direct evidence of the value of
the stolen vehicle. There, the State presented evidence tending to
show that the vehicle was a 1975 Chrysler Cordoba; it was the
owner's favorite vehicle and he took especially good care of it;
and the owner always parked the vehicle under a shed. Id. TheState also introduced a photograph of the vehicle.
The State maintained that such evidence was sufficient to
establish the value of the vehicle exceeded $400.00, the statutory
minimum applicable at that time. Id. The Supreme Court rejected
the argument, stating that “the substantiality of the evidence is
insufficient for presentation of the issue of value to the jury.
The jury may not speculate as to the value.” Id. It concluded
that such evidence “was not such as would justify the jury in
finding that the value of the Cordoba exceeded four hundred
dollars.” Id. The court therefore vacated the defendant's
conviction for felonious possession of stolen property and remanded
for pronouncement of a judgment of guilty of misdemeanor possession
of stolen property and for re-sentencing. Id.
In this case, the State likewise failed to introduce
sufficient evidence of the value of the stolen goods in defendant's
possession. The trial court instructed the jury that defendant's
charge was based upon his possession of “a Magnavox VCR, cameras,
and photography equipment.” Although Goodman testified that the
total estimated value of all stolen items was $5,000.00, there is
simply no evidence regarding the total value of the items contained
in the trial court's charge. The only evidence relating to these
items was Hayes' testimony that she loaned defendant $40.00 for a
Magnavox VCR based on her estimate that she could resell it for
$80.00, and Mitchell's testimony that she loaned defendant $80.00
for two cameras and some photography equipment. Such evidence is
not sufficient evidence from which a jury could determine to anycertainty the value of the VCR, cameras, and photography equipment.
The jury must not be left to speculate about the value of these
items. See Holland, 318 N.C. at 610, 350 S.E.2d at 61. We
therefore vacate defendant's conviction for felonious possession of
stolen property in 99CRS011124. We remand that matter to the trial
court for entry of a judgment of guilty of misdemeanor possession
of stolen property, and for re-sentencing accordingly. See id.
[2]Defendant next argues his convictions for two counts of
obtaining property by false pretenses must be vacated because the
State improperly amended the indictment. The original indictment
listed the items defendant represented as his own as “two (2)
cameras and photography equipment.” The trial court permitted the
State to amend the indictment to change the items listed to a
“Magnavox VCR.”
“Pursuant to N.C.G.S. § 15A-923(e) (1999), a bill of
indictment may not be amended in a manner which substantially
alters the charge set forth.” State v. Haywood, 144 N.C. App. 223,
228, 550 S.E.2d 38, 42, appeal dismissed and disc. review denied,
354 N.C. 72, 553 S.E.2d 206 (2001). In State v. Bowen, 139 N.C.
App. 18, 27, 533 S.E.2d 248, 254 (2000), we noted that “the purpose
of an indictment is to give a defendant notice of the crime for
which he is being charged.” Therefore, if the court finds “that
the proof was in line with the indictment,” an amendment does not
substantially alter the charge within the meaning of N.C. Gen.
Stat. § 15A-923(e). Id.
This Court has further noted that while the evidence mustcorrespond to the allegations in the indictment which are
essential
to charge the offense, “a non-essential variance is not fatal to
the charged offense.” State v. Grady, 136 N.C. App. 394, 396, 524
S.E.2d 75, 77 (holding change in address on indictment for
maintaining a dwelling for the use of a controlled substance was
not substantial alteration), appeal dismissed and disc. review
denied, 352 N.C. 152, 544 S.E.2d 232 (2000); see also State v.
Joyce, 104 N.C. App. 558, 573, 410 S.E.2d 516, 525 (1991) (holding
change from “'knife'” to “'firearm'” in indictment for assault with
a deadly weapon did “not alter the burden of proof or constitute a
substantial change which would justify returning the indictment to
the grand jury”), cert. denied, 331 N.C. 120, 414 S.E.2d 764
(1992).
In this case, the elements of obtaining property by false
pretenses are “'(1) a false representation of a subsisting fact or
a future fulfillment or event, (2) which is calculated and intended
to deceive, (3) which does in fact deceive, and (4) by which one
person obtains or attempts to obtain value from another.'” State
v. Hutchinson, 139 N.C. App. 132, 138, 532 S.E.2d 569, 573 (2000)
(quoting State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286
(1980)); see also N.C. Gen. Stat. § 14-100(a) (1999).
We hold that the amending of the items listed on the
indictment from cameras and photography equipment to a VCR was not
a substantial alteration of the charge. The description of the
item or items which defendant falsely represented as his own isirrelevant to proving all essential elements of the charge. Under
the amended indictment, the State was still required to prove (1)
that defendant falsely represented a subsisting fact; (2) which
defendant calculated and intended to deceive; (3) which did in fact
deceive; and (4) by which defendant obtained value from another.
The proof required to convict defendant under the amended
indictment was the same as that required by the original
indictment. Therefore, the amendment was a non-essential variance
which did not substantially alter the charge in the original
indictment. See Bowen, 139 N.C. App. at 27, 533 S.E.2d at 254.
The amended indictment properly served its purpose of providing
defendant notice of the crime being charged. Defendant's
conviction must therefore stand.
No error as to 99CRS011122, 011123; judgment vacated in
99CRS011124 and remanded.
Judges GREENE and THOMAS concur.
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