An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-845


Filed: 4 March 2003


         v.                        Martin County
                                Nos. 00 CRS 2206-07
                                    01 CRS 2012

    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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