Appeal by defendant from judgment entered 13 December 2001 by
Judge Carl L. Tilghman in Martin County Superior Court. Heard in
the Court of Appeals 24 February 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Michelle B. McPherson, for the State.
Richard E. Jester, for defendant-appellant.
TYSON, Judge.
Nathaniel Lee Simpson (“defendant”) was found guilty by a jury
of two counts of felonious breaking and entering a motor vehicle.
He pled guilty to his status as habitual felon. He was sentenced
to a minimum term of 168 months and a maximum term of 211 months.
Defendant appeals. We find no error.
I. Background
The State presented evidence tending to show that on 9 August
2000, Doretha and Clarence Rodgers heard a noise outside their
house north of Williamston. They looked out and saw a man, whom
they identified as defendant, get into their vehicles, one at a
time, and rummage through the vehicles. Mrs. Rodgers notified law
enforcement authorities. She described the man as small-framed andwearing a dark, gingham plaid shirt and a green beret on his head.
While responding to a dispatch to the Rodgers' residence,
Deputy Mike Rogers of the Martin County Sheriff's Department
encountered a man satisfying this description walking along the
side of the road. Deputy Rogers directed Deputy Carver Bryant to
return to where he saw this man. Deputy Bryant found the man,
identified as defendant, trying to get into a tractor trailer
truck. Defendant told the officer that he was trying to obtain a
ride. Defendant did not present any evidence.
II. Issues
Defendant brings forward two assignments of error. First, he
contends the court erred by denying his motion to dismiss the
charge of felonious breaking and entering a motor vehicle. Second,
defendant contends that the court erred by amending the habitual
felon indictment by changing the date of a conviction of felony
larceny from 31 March 1991 to 21 March 1991.
III. Sufficiency of Evidence
Defendant argues the evidence fails to show that defendant had
the intent to commit larceny when he broke and entered the
vehicles. In ruling upon a motion to dismiss, the court must
consider the evidence in the light most favorable to the
prosecution, giving it the benefit of every reasonable inference
that may be drawn.
State v. Powell, 299 N.C. 95, 99, 261 S.E.2d
114, 117 (1980). The statute under which defendant was prosecuted
provides that it is a Class I felony for a person to break or enter
a motor vehicle with the intent to commit any felony or larcenytherein. N.C. Gen. Stat. § 14-56 (2002). This statute also
expressly provides
[i]t is prima facie evidence that a person entered in
violation of this section if he is found unlawfully in
such a railroad car, motor vehicle, trailer, aircraft,
boat, or other watercraft.
N.C. Gen. Stat. § 14-56. Prima facie evidence is defined as
evidence sufficient to take a case to the jury.
State v. Williams,
288 N.C. 680, 687, 220 S.E.2d 558, 564 (1975). Evidence that
defendant was seen inside the vehicles is sufficient to establish
the element of larcenous intent and to overcome the motion to
dismiss. In addition, the defendant's intent at the time of a
breaking and entering may be inferred from evidence of the
defendant's activities after he effectuated the breaking and
entering.
State v. Gray, 322 N.C. 457, 461, 368 S.E.2d 627, 629
(1988). Defendant was seen rummaging through the vehicles. A jury
could reasonably infer that he was looking for something to steal.
This assignment of error is overruled.
IV. Amendment to Indictment
An “amendment” to an indictment is defined as “any change in
the indictment which would substantially alter the charge set forth
in the indictment.”
State v. Carrington, 35 N.C. App. 53, 58, 240
S.E.2d 475, 478,
disc. review denied, 294 N.C. 737, 244 S.E.2d 155
(1978). Any change to an indictment which does not substantially
alter a charge is not prohibited.
Id. Ordinarily, the date
alleged in an indictment is not a necessary or essential fact.
State v. Cameron, 83 N.C. App. 69, 72, 349 S.E.2d 327, 329 (1986).
The State may show the offense was committed on another datewithout the necessity of a motion to change the indictment.
Id.
We find
State v. Locklear, 117 N.C. App. 255, 450 S.E.2d 516
(1994) particularly instructive. In that case we held a habitual
felon indictment was properly changed to charge the date of an
offense as 2 December 1992 instead of 19 December 1992. We stated
that the fact another felony is committed, not its specific date,
is the essential averment of a habitual felon indictment.
Locklear, 117 N.C. App. at 260, 450 S.E.2d at 519. The court did
not improperly amend the habitual felon indictment by changing the
date of a prior conviction.
V. Conclusion
We have carefully reviewed both of defendant's assignments of
error and conclude that defendant received a trial free from errors
he assigned and argued.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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