An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1051


Filed: 20 May 2003


         v.                                Pitt County< br>                                         Nos. 01CRS16751
JAMES EARL DAVIS                                01CRS59026

    Appeal by defendant from judgments entered 27 March 2002 by Judge Dwight L. Cranford in Pitt County Superior Court. Heard in the Court of Appeals 5 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.

    Adrian M. Lapas for defendant appellant.

    McCULLOUGH, Judge.

    Defendant James Earl Davis was tried before a jury at the 25 March 2002 Criminal Session of Pitt County Superior Court on several charges arising from the incidents that occurred on the evening of 27 July 2001.
    The State's evidence tended to show that at approximately 5:00 p.m. on 27 July 2001, defendant was seen behind the Toys-R-Us store on Greenville Boulevard in Greenville, North Carolina. A store employee testified that she saw defendant carrying merchandise away from a storage trailer located at the back of the store and then place that merchandise with other merchandise under a nearby tractor-trailer. As the employee put it, this merchandise was “notsupposed to be there.” After doing so, defendant headed back to the storage trailer.
    The employee contacted the store director, who found defendant in a dumpster located beside the store. The store director told defendant to leave the store's premises. In compliance with the director's request, defendant climbed out of the dumpster and walked through the parking lot away from the store. As defendant neared the street, a Greenville police officer asked him to stop. Defendant began walking toward the officer, and the officer asked defendant to remove his hands from his pockets. Defendant did not respond and the officer repeated his request. Defendant then said “F-ck you.” The officer felt uneasy and grabbed defendant's arm to pull his hand out of his pocket. Defendant then shoved the officer against the hood of his patrol car. The officer managed to wrestle defendant to the ground and handcuff him. Upon searching the defendant, the officer found a nine-inch “Tough Tool,” described as a knife or box cutter.
    Defendant was charged on 13 November 2001 with felonious breaking or entering, felonious larceny, felonious possession of stolen goods, assault on a law enforcement officer, resisting a law enforcement officer, carrying a concealed weapon, and having attained the status of habitual felon. On 26 March 2002, a jury found defendant guilty of felonious breaking or entering, and felonious larceny. The jury also found defendant guilty of felonious possession of stolen goods, but this judgment was arrested by the trial court. The jury found defendant not guiltyof carrying a concealed weapon. Defendant appeals.
    Defendant presents two arguments on appeal. Defendant's first argument is that the trial court erred by allowing the State to change the name of the victim to allege its corporate status in the indictment. Defendant argues that changing the victim's name from “Toys-R-Us” to “Toys-R-Us, Inc.” substantially altered the indictment, making it flawed. We disagree.
    A bill of indictment cannot be “amended” according to N.C. Gen. Stat. § 15A-923(e) (2001). This prohibition has been interpreted to mean only that an indictment may not be changed in such a way that would “substantially alter” the charge in the indictment. State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1993) (quoting State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, appeal dismissed and disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978)). In a larceny prosecution, the indictment must allege that someone besides the defendant owned the property in question. State v. Norman, 149 N.C. App. 588, 593, 562 S.E.2d 453, 457 (2002). Therefore, the victim must be identified as “'a legal entity capable of owning property'” for the indictment to be proper. Id. (quoting State v. Woody, 132 N.C. App. 788, 790, 513 S.E.2d 801, 803 (1999)).
    Defendant challenges Count II of the indictment (larceny) which alleged that defendant “did steal, take and carry away three (3) Evenflo Car Seats, the personal property of 'Toys-R-Us.'” This does not show the corporate status of the victim and fails to show that the victim was an entity capable of owning property. SeeState v. Thornton, 251 N.C. 658, 661-62, 111 S.E.2d 901, 903 (1960). However, Count III of the indictment (possession of stolen goods), alleges that defendant “possess[ed] the personal property described in Count II above . . . being the personal property of the person, corporation, and other legal entity described in Count II,” which was “Toys-R-Us.” Although the name of the victim did not indicate its corporate status, the language in Count III did indicate that the victim was capable of owning the stolen property. Thus, the victim, “Toys-R-Us,” was properly identified as an entity capable of owning the property in question. See State v. Epps, 95 N.C. App. 173, 176, 381 S.E.2d 879, 881 (1989) (When two counts, one being insufficient and the other sufficient, are read together and apprise the defendant as to the charges against him, thereby curing the defect, there is no prejudicial error.).
    In addition, at no time was the victim's ownership of the stolen property or identity in question, and we conclude that the change did not prejudice defendant in mounting his defense. Therefore, we hold that the indictment properly identified the victim and its ownership rights and that the change to the indictment did not “substantially alter” the indictment in violation of N.C. Gen. Stat. § 15A-923(e).
    In light of our holding in this regard, we also reject defendant's argument that the possession of stolen property count in the indictment suffers from the same defect raised as to the larceny count. The change in the indictment neither “substantially alter[ed]” the indictment as to the larceny nor the possessioncharge. Further, judgment on the possession of stolen property was arrested by the trial court at sentencing, thereby eliminating any possible prejudice to defendant.
    Defendant's second argument on appeal is that the trial court erred by instructing the jury that the storage trailer in the present case is a “building” under N.C. Gen. Stat. § 14-54(a) (2001). Specifically, defendant argues that this instruction was not proper since it was not clear whether the structure was a “building” or a “trailer,” depriving him of his constitutional right to a jury trial on an essential element of the crime.
    Peremptory instructions, such as the instruction in the present case, are appropriate “'only in rare instances in this State, where uncontradicted evidence establishes the element(s) beyond a reasonable doubt.'” State v. Snyder, 343 N.C. 61, 68, 468 S.E.2d 221, 225 (1996) (quoting State v. Bowen, 67 N.C. App. 512, 515, 313 S.E.2d 196, 197 (1984)). For purposes of a charge of breaking and entering, a “building” includes any “dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.” N.C. Gen. Stat. § 14-54(c) (emphasis added). Determining whether a structure is a “building” or a “trailer” depends upon the circumstances in the case, as a trailer must qualify as a building for defendant to be guilty under § 14-54(a). State v. Bost, 55 N.C. App. 612, 616, 286 S.E.2d 632, 634-35, cert. denied, 305 N.C. 588, 292 S.E.2d 572 (1982). Whether storagetrailers are considered “buildings” depends upon their location, use, and whether “they have lost their character of mobility and have attained a character of permanence.” Id.
    In the present case, uncontradicted evidence tended to show that the storage trailer in which the stolen property was kept had no wheels and sat flat on the ground. In Bost, this Court held that a trailer used to store property at a construction site was considered a building because it was “'blocked up' and not characterized by mobility” making it “a structure used primarily for storage of property.” Id. at 615, 286 S.E.2d at 634. The trailer in Bost was moved from one site to another at the end of construction jobs and appears to have been less permanent in nature than the storage trailer in the present case. See id. at 614, 286 S.E.2d at 634.
    Based upon the uncontradicted evidence in the present case, we conclude that the trial court properly found that the storage trailer was a “building” beyond a reasonable doubt. Therefore, the trial court did not err in giving a peremptory instruction that the storage building in question was a “building” under N.C. Gen. Stat. § 14-54.
    In light of our foregoing conclusions, we hold that defendant received a fair trial, free from prejudicial error.     
    No error.
    Judges MARTIN and CALABRIA concur.
    Report per Rule 30(e).

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