STATE OF NORTH CAROLINA
v
.
Beaufort County
Nos. 01 CRS 51194
ELIJAH JAMAL YARRELL, 01 CRS 2910
Defendant.
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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