STATE OF NORTH CAROLINA
v
.
MARK LYNN CRAYCRAFT
Attorney General Roy A. Cooper, by William M. Polk, for the
State.
John T. Hall for defendant.
TIMMONS-GOODSON, Judge.
On 15 March 2000, a jury found Mark Lynn Craycraft
(“defendant”) guilty of felony breaking and entering and felony
larceny. For the reasons stated herein, we reverse the judgment of
the trial court.
At trial the State presented evidence tending to show the
following: Defendant's father rented a mobile home from Joe
Montague (“Montague”) until he defaulted on his rental payments.
Montague explained that he took steps to evict defendant's father
for failure to pay rent; however, no civil ejectment documents were
offered into evidence. Montague stated that he, “gave [defendant's
father] seven days to get his stuff out or the place would be
locked up. He didn't do that. Sheriff came out, went down, put
the signs in the windows and we changed the locks on the doors” tosecure the mobile home. Defendant's father thereafter contacted
Montague in his attempts to retrieve his property from the mobile
home. Montague testified:
[Defendant's father] called out there 20
minutes to seven on a Friday night and wanted
to know would we come go down there and unlock
his trailer for him and get his stuff out. He
was going to go and rent a U-Haul truck. And
I said well when you get here with the truck
we'll call the law. Now if it's after 7:00
I'll be gone. So never heard nothing else
from him.
About two weeks later he called me again
and asked about the same thing. . . . Never
heard another word with him. He never came
back with the truck and never came back to my
knowledge.
The State presented further evidence by Yvonne DeBord Driver
(“Driver”), an employee of Montague, who testified that on 1
November 1998, she saw “that somebody had broke [sic] into the
mobile home and that the table was gone.” After calling Montague
to inform him of the break-in, she resecured the mobile home. At
that point, she observed defendant on a path behind the mobile
home. The next day, Driver encountered defendant riding a bicycle
on the property. She returned to the office and informed
Montague's wife that she had seen defendant. Mrs. Montague
followed defendant out of the mobile home park and down the road to
another mobile home, the backyard of which abutted the rear of
defendant's father's former mobile home. Driver subsequently
identified defendant to sheriff's deputies who arrested him. At
the close of the State's evidence, defendant made a motion to
dismiss based on the insuffiency of the evidence which was denied.
Defendant then presented evidence tending to show an alibi. The trial court sentenced defendant to suspended consecutive
sentences of eight to ten months, with supervised probation for
thirty-six (36) months, and ordered defendant to pay restitution in
the amount of $400.00 for the table and chairs and $150.00 to
compensate for the damage to the mobile home. From this sentence,
defendant appeals.
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Defendant presents two issues on appeal: (1) whether the trial
court erred in denying the motion to dismiss the charge of felony
larceny and (2) whether the trial court erred in ordering defendant
to pay restitution to Montague.
On a motion to dismiss, the trial court must consider the
evidence “in the light most favorable to the State, and the State
is entitled to every reasonable inference to be drawn therefrom.”
State v. Gainey, 343 N.C. 79, 85, 468 S.E.2d 227, 231 (1996). “In
ruling on a motion to dismiss, the trial court need only determine
whether there is substantial evidence of each essential element of
the crime and that the defendant is the perpetrator.” State v.
Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998), cert. denied,
122 S. Ct. 628, 151 L. Ed. 2d 548 (2001). Evidence is considered
substantial when “a reasonable mind might accept [it] as adequate
to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980). The motion to dismiss should be denied if
there is substantial evidence supporting a finding that the offense
charged was committed. See State v. Locklear, 322 N.C. 349, 358,
368 S.E.2d 377, 383 (1988). Defendant argues that the trial court erred in failing to
dismiss the felony larceny charge because of the existence of a
fatal variance between the indictment and the evidence at trial.
We agree.
In a larceny case, the indictment must allege that the person
from whom the property was taken had a property interest in the
stolen property. State v. Greene, 289 N.C. 578, 584, 223 S.E.2d
365, 369 (1976). The State may prove ownership by introducing
evidence that the person either possessed title to the property or
had a special property interest. Id. If the indictment fails to
allege the existence of a person with title or special property
interest, then the indictment contains a fatal variance. State v.
Salters, 137 N.C. App. 553, 555, 528 S.E.2d 386, 389 (2000), cert.
denied, 352 N.C. 361, 544 S.E.2d 556 (2000).
In the instant case, the evidence showed that the table and
chairs were the personal property of defendant's father. No
evidence was presented to show that they belonged to Montague as
alleged in the indictment. On the contrary, Montague testified
that the table and chairs belonged to defendant's father.
Defendant's father made two separate unsuccessful attempts to
collect his property from Montague. As a landlord, Montague did
not have any special possessory interest in the table and chairs,
although he was maintaining them for his former tenant, pursuant to
sections 42-25.9 and 42-36.2 of the North Carolina General
Statutes. See N.C. Gen. Stat. § 42-25.9(g) (2001) (stating that a
landlord may dispose of former tenant's personal property afterbeing placed in lawful possession by execution of a writ of
possession) and N.C. Gen. Stat. § 42-36.2 (2001) (pertaining to
storage of evicted tenant's personal property). Given the absence
of civil ejectment documents, the record lacks substantial evidence
that defendant's father had been evicted. Moreover, although under
section 42-25.9(g) “[t]en days after being placed in lawful
possession by execution of a writ of possession, a landlord may
throw away, dispose of, or sell all items of personal property”,
there was no evidence that Montague had obtained a writ of
possession. N.C. Gen. Stat. § 42-25.9(g). Even if the record
contained civil ejectment documents, a landlord does not have
special possessory interest in tenant's personalty, the way that,
for example, a parent does over their child's possessions, see
State v. Robinette, 33 N.C. App. 42, 46, 234 S.E.2d 28, 30 (1977),
or a bailee does, see State v. Liddell, 39 N.C. App. 373, 375, 250
S.E.2d 77, 79 (1979), cert. denied, 297 N.C. 178, 254 S.E.2d 36
(1979). Furthermore, even a caretaker in actual possession does
not have a special interest in the property. See Salters, 137 N.C.
App. at 556, 528 S.E.2d at 389.
As there was insufficient evidence that Montague had any
possessory interest in the table and chairs, the indictment
contained a fatal variance. Because of the fatal variance between
the indictment and the evidence, we conclude that the trial court
erred in denying defendant's motion to dismiss the charge of felony
larceny.
Given our conclusion that the trial court erred in denyingdefendant's motion to dismiss the charge of felony larceny,
defendant's conviction of felonious breaking and entering cannot
stand. “Any person who breaks or enters any building with intent
to commit any felony or larceny therein shall be punished as a
Class H felon.” N.C. Gen. Stat. § 14-54(a) (2001). The State
presented no evidence that defendant entered the mobile home with
the intent to commit a felony or larceny. Instead, there is
evidence that defendant committed wrongful breaking and entering,
a Class 1 misdemeanor. See N.C. Gen. Stat. § 14-54(b).
By his second assignment of error, defendant argues that the
trial court erred in ordering restitution. We agree in part with
defendant. As we have already concluded, the table and chairs,
personal property valued at $400.00, did not belong to Montague.
As such, he was not a victim of larceny as an “aggrieved party” to
be compensated “for the damage or loss caused by the defendant
arising out of the offense or offenses committed by defendant.”
N.C. Gen. Stat. § 15A-1343(d) (2001). Therefore, the trial court
erred in ordering defendant to pay Montague restitution in the
amount of $400.00 for loss of personal property. The $150.00
attributable to defendant's damage to the mobile home, however, is
proper and must stand on remand.
In conclusion, we hold that the trial court erred in denying
defendant's motion to dismiss the charge of felony larceny and in
ordering restitution for the value of the personal property.
Moreover, the trial court erred in failing to dismiss the charge of
felony breaking and entering. We therefore vacate defendant's convictions of felony breaking
and entering and felony larceny and remand for sentencing on
misdemeanor breaking and entering.
Reversed and remanded.
Judges CAMPBELL and LEWIS concur.
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