An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-243


Filed: 2 March 2004


v .                         Beaufort County
                            Nos. 01 CRS 51194
ELIJAH JAMAL YARRELL,                01 CRS 2910

    Appeal by defendant from judgment entered 30 April 2002 by Judge Clifton W. Everett, Jr., in the Superior Court of Beaufort County. Heard in the Court of Appeals 15 January 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

    A. Michelle FormyDuval, for defendant-appellant.

    HUDSON, Judge.

    Defendant was indicted for breaking or entering a motor vehicle and attempted larceny, and as a habitual felon. On 29 April 2002, a jury convicted defendant of breaking or entering a motor vehicle and attempted felonious larceny, and defendant pled guilty to being a habitual felon. The court sentenced defendant to 110 to 141 months. Defendant appeals, contending that his indictment was fatally defective and that there was insufficient evidence as a matter of law to support his conviction of breaking or entering a motor vehicle. For the reasons discussed below, we vacate defendant's conviction for breaking or entering a motor vehicle and affirm the other convictions, but remand for re- sentencing.    The State's evidence tended to show that in the early morning hours of 12 May 2001, the Washington Police Department received a report that someone was attempting to break into cars at the PB&J Ford lot (“PB&J”). When they arrived, responding officers saw a black man walking between vehicles on the PB&J lot. The officers asked him to stop, but the man began running. Officer Lee then chased the suspect across a street, through a restaurant parking lot, and behind an office building, where he lost sight of the suspect for about five seconds. Officer Hassell attempted to cut the suspect off with his patrol car, and then confronted defendant Elijah Jamal Yarrell (“defendant”) hidding in bushes next to the office building. Officer Lee identified defendant as the man he had been chasing, and arrested him.
    The officers found a pair of brown work gloves next to the bushes where defendant was hiding, and they found a hammer and screwdriver in the restaurant parking lot through which the suspect ran. At the PB&J lot, officers discovered damage to a 1998 Ford Expedition, including a broken window and a damaged lock mechanism and steering column. The officers did not find any fingerprints on the Expedition, the hammer or the screwdriver.
    Defendant argues that the indictments against him are fatally defective and cannot support his conviction. Defendant contends that the indictments were flawed because they 1) insufficiently described the vehicle as a “1998 Ford” without specifying the vehicle model, 2) incorrectly identified the vehicle's owner, and 3) fatally varied from the evidence presented by the Stateregarding a necessary element of breaking or entering a motor vehicle. Defendant also argues that the court erred in denying his motion to dismiss the charges against him. We see no fatal flaws in defendant's indictments with regard to the identification of either the vehicle itself or its owner. Therefore, we affirm defendant's attempted larceny conviction. However, because the State failed to present evidence of one of the elements of breaking or entering a motor vehicle, we vacate that portion of the judgment.
    First, defendant alleges two flaws on the face of the indictments. Where a fatal defect in the indictment appears on the face of the record, “a judgment which is entered notwithstanding said defect is subject to a motion in arrest of judgment.” State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998), review dismissed 349 N.C. 289, 507 S.E.2d 38 (1998). An indictment is fatally flawed if it “wholly fails to charge some offense . . . or fails to state some essential and necessary element of the offense of which the defendant is found guilty.” Id. (internal citations omitted) When such a defect is present, a motion in arrest of judgment may be made at any time in any court having jurisdiction over the matter, even if raised for the first time on appeal. Id.
    “North Carolina courts have long held that in making out an indictment or criminal summons, the state need only allege ultimate facts.” Id. at 692, 497 S.E.2d at 419. Here, the identification of the vehicle and its owner in the indictments conform to thestandards set forth in the case law. This Court has upheld as sufficient indictments identifying personal property with similar levels of specificity. See State v. Monk, 36 N.C. App. 337, 340, 244 S.E.2d 186, 188 (1978) (“assorted items of clothing, having a value of $504.99”); State v. Hartley, 39 N.C. App. 70, 71, 249 S.E.2d 453, 454 (1978), cert. denied 296 N.C. 738, 254 S.E.2d 179 (1979) (“a quantity of used automobile tires . . . having a value of over $200.00”) ; State v. Foster, 10 N.C. App. 141, 142, 177 S.E.2d 756, 757 (1970) (“automobile parts of the value of $300.00”); State v. Mobley, 9 N.C. App. 717, 718, 177 S.E.2d 344, 345 (1970) (“an undetermined amount of beer, food and money of the value of $25.00”).
    Here, the indictment's description of a “1998 Ford” on the PB&J lot is analogous to the descriptions of personal property the Court upheld in the cases cited above. In contrast, the cases cited by defendant in his brief involve descriptions of real property, where the owner of the real property owned multiple properties in the same county. Further, had defendant felt that the indictment truly hampered his defense, “he could have requested a bill of particulars prior to the trial.” Foster, 10 N.C. App. at 143, 177 S.E.2d at 756.
    Similarly, the indictment sufficiently identifies the vehicle's owner as “the personal property of PB&J Automotive, LLC, d/b/a PB&J Ford Mercury.” Testimony revealed that the vehicle was owned by both Ford Motor Credit and PB&J, with PB&J having an ownership interest of approximately 10 percent. In State v.Waddell, our Supreme Court found no fatal variance between an indictment alleging armed robbery of money “said money being the property of Jesse L. Brown, t/d/b/a 7 Day Mart,” when the evidence showed that Jesse L. Brown did not in fact own the 7 Day Mart. 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971); see also State v. Cotten, 2 N.C. App. 305, 163 S.E.2d 100 (1968).
    In addition, even where there is a variance between the indictment and the evidence presented, defendant must show that the variance was material and prejudicial. State v. Christopher, 307 N.C. 645, 649, 300 S.E.2d 381, 383 (1983). Defendant's brief makes no claim of any prejudice resulting from the alleged variance. Thus, the indictments are sufficient to support defendant's conviction for attempted larceny.
    Defendant also alleges a fatal variance in the indictment for breaking or entering a motor vehicle because the State failed to present evidence about one of the elements of that crime. If an alleged defect, rather than appearing on the face of the indictment, results from the State's failure to offer sufficient evidence, “[a] motion to dismiss is in order.” Waddell, 279 N.C. at 445, 183 S.E.2d at 646. “A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged.” Id. Because defendant also assigns as error the court's denial of his motion to dismiss the breaking or entering a motor vehicle charge on the same grounds, we address this issue below with regard to the denial of defendant's motion to dismiss.     Defendant argues that the court erred in denying his motion to dismiss both the attempted larceny and breaking or entering a motor vehicle charges. The standard for ruling on a motion to dismiss is well-established.
        On a motion to dismiss on the ground of insufficiency of the evidence, the question for the court is whether there is substantial evidence of each element of the crime charged and of defendant's perpetration of such crime. In evaluating the motion the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference to be drawn therefrom.

State v. Williams, 319 N.C. 73, 79, 352 S.E.2d 428, 432 (1987) (internal citations omitted).
    In challenging the attempted larceny charge, defendant contends that the State failed to present evidence that he intended to take and carry away the vehicle and that no one was able to identify defendant as the perpetrator of the crime. We disagree.
    The State presented substantial evidence that a black man was on the PB&J lot after midnight, where an attempted break-in had been reported. When asked by officers to stop, the suspect instead ran, dropping tools and gloves as he fled. Officers pursued the suspect to the vicinity of an office building, where they lost sight of their quarry for only a few seconds. Moments later, officers apprehended defendant hiding in shrubbery next to the office building, and one of the officers positively identified defendant as the suspect he had been chasing. “An accused's flight is 'universally conceded' to be admissible as evidence of consciousness of guilt and thus of guilt itself.” State v. Jones,292 N.C. 513, 525, 234 S.E.2d 555, 562 (1977). The evidence presented by the State was sufficient to submit the charge of attempted larceny to the jury. Thus, we find no error in the court's denial of the motion to dismiss on that charge.
    Defendant also assigns error to the denial of his motion to dismiss on the charge of breaking or entering a motor vehicle. The crime of breaking or entering a motor vehicle is defined, in pertinent part, as occurring when a “person with intent to commit any felony or larceny therein, breaks or enters any . . . motor vehicle . . . containing any goods, wares, freight, or other thing of value.” N.C. Gen. Stat. § 14-56 (1999). “The statute requires, as an element of the offense, that the vehicle broken or entered must contain 'goods, wares, freight, or other thing of value.'” State v. McLaughlin, 321 N.C. 267, 270, 362 S.E.2d 280, 282 (1987).Even items of trivial value satisfy this element of the offense. See State v. Goodman, 71 N.C. App. 343, 349, 322 S.E.2d 408, 413 (1984), review denied 313 N.C. 333, 327 S.E.2d 894 (1985) (registration card, hubcap key); State v. Quick, 20 N.C. App. 589, 591, 202 S.E.2d 299, 300 (1974) (papers, cigarettes, shoe bag). As in McLaughlin, however, “[t]he record here . . . is devoid even of evidence that the . . . vehicle contained items of trivial value.” McLaughlin, 321 N.C. at 270, 362 S.E.2d at 282. The State concedes that it cannot distinguish this case from McLaughlin, and thus, requests that defendant's conviction for breaking or entering a motor vehicle be vacated. We agree.    Affirmed in part, vacated in part and remanded for new sentencing.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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