State v Johnson, (03-717) 06/01/2004

Appeal by defendant from judgment entered 4 December 2002 by Judge Gregory A. Weeks in Wake County Superior Court. Heard in the Court of Appeals 3 May 2004.

Attorney General Roy Cooper, by Assistant Attorney General J. Douglas Hill, for the State.

Daniel F. Read for defendant-appellant.

ELMORE, Judge.

    On 23 September 2002, defendant Joseph Darnell Johnson was indicted on charges of breaking and entering and larceny. The case was tried at the 4 December 2002 Criminal Session of Wake County Superior Court.
    The evidence presented at trial tended to show the following: On 24 June 2002, Maricela Ignasio Sanchez (Sanchez) arrived home from work at about 8 p.m., went into her home and put her purse on top of her sofa. After cooking dinner, Sanchez opened the front door “because of the smell of the food” and went upstairs to talk to her son. When she came back downstairs, she noticed that her purse was missing.    Sanchez went outside and saw Edith Velazquez (Velazquez) and asked her if she saw anybody go into her apartment. Velazquez described a person, whom she identified in court as the defendant, and pointed towards him. At trial, Velazquez testified that defendant entered Sanchez' home empty-handed, but left with the purse. Sanchez screamed to her son, “there's the guy.” Her son chased after the defendant but did not catch him. Sanchez later described the defendant to police, and she was shown a photographic lineup. Sanchez identified the defendant as the perpetrator “immediately.” Sanchez also identified the defendant at trial.
    Defendant was convicted of felonious entering and felonious larceny after an entering. The offenses were consolidated for judgment and defendant was sentenced to a term of nine to eleven months imprisonment. Defendant appeals.
    Defendant first argues that the trial court erred by denying his motion to dismiss because there was a fatal variance between the indictments and the evidence adduced at trial. Specifically, defendant notes that the indictments name the victim as “Marisela Igmasio,” while at trial the victim identified herself as “Mariela Ignasio Zanhez” or “Maricela Ignasio Sanchez.” We note that while defendant did not raise this issue at trial, we nevertheless consider defendant's argument because “where it appears from the face of the indictment that the conviction and sentence are void, this Court will, of its own motion, arrest judgment.” State v. Call, 349 N.C. 382, 424, 508 S.E.2d 496, 522 (1998). Defendant further contends that there was insufficient evidence to supportthe conviction.
    Defendant was convicted of both larceny and entering. “[T]he indictment in a larceny case must allege a person who has a property interest in the property stolen and that the State must prove that the person has ownership, meaning title to the property or some special property interest.” State v. Adams, 331 N.C. 317, 331, 416 S.E.2d 380, 388 (1992) (quoting State v. Greene, 289 N.C. 578, 584, 223 S.E.2d 365, 369 (1976)). Regarding a variance between the name of a victim as it appears in the indictment and as portrayed by the evidence presented at trial, our Supreme Court has stated that “[w]here an indictment charges the defendant with a crime against someone other than the actual victim, such a variance is fatal.” Call, 349 N.C. at 424, 508 S.E.2d at 522 (quoting State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d 131, 144 (1994)). However, in State v. Utley, our Supreme Court held that “[m]anifestly, there is no uncertainty in the identity of the [victim]” where the trial court supplies the proper name of the victim when referring to the indictment and the evidence in its charge to the jury. State v. Utley, 223 N.C. 39, 48, 25 S.E.2d 195, 202 (1943).
     In the present case, while the indictment alleged that defendant took “the personal property of Marisela Igmasio,” the evidence presented at trial revealed that the property owner's name was “Maricela Ignasio Zanhez” or “Maricela Ignasio Sanchez.” Nevertheless, witnesses referred to the victim as “Ms. Ignasio” while testifying, the State referred to the victim as “Ms. Ignasio”while questioning her, and the trial court referred to the victim as “Maricela Ignasio” three times during its charge to the jury. On these facts, we conclude there was no uncertainty as to the identity of the victim in the present case.
    Moreover, in State v. Cameron, this Court held that where the record reveals that the victim's name as alleged in the indictment is “sufficiently similar” to the victim's name as evidenced at trial, and the proof at trial matched the indictment's allegations in all other respects, “defendant was not surprised or placed at any disadvantage in preparing his defense to the crimes charged in the indictment.” State v. Cameron, 73 N.C. App. 89, 92, 325 S.E.2d 635, 637 (1985), disc. review denied, 315 N.C. 592, 341 S.E.2d 31- 32 (1986). In the present case, although the stolen purse containing $900.00 was not recovered, the victim testified at trial to ownership of the property. The victim's neighbor testified that she saw defendant carrying the purse as he left the victim's apartment, and the victim's son, who chased defendant after the larceny, also testified that defendant was carrying the purse. The victim identified defendant “immediately” in a photo lineup after the larceny, and both she and her son identified defendant in court.
    Thus, it is clear the person alleged in the indictment as the owner of the stolen property is the same person indicated as the victim by the evidence presented at trial. Because both defendant and the jury were certain of the identity of the victim, we conclude, as in Cameron, that the variance between the allegationsof the indictment and the evidence presented at trial is “wholly immaterial.” Cameron, 73 N.C. App. at 92, 325 S.E.2d at 637. This assignment of error is overruled.
    We likewise conclude there was no fatal variance in regards to the charge of entering. “The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein.” State v. Gray, 322 N.C. 457, 460, 368 S.E.2d 627, 629 (1988)(citing N.C. Gen. Stat. § 14-54(a)). “The felonious intent required to satisfy the third element must be the intent set out in the indictment.” Id. Here, the indictment alleged that defendant entered a dwelling located at 2355 Foxridge Manor Road with the intent to commit larceny. The victim's name was not an essential element of the offense. Although the victim's name was incorrect in the entering indictment, “a non-essential variance is not fatal to the charged offense.” State v. Grady, 136 N.C. App. 394, 396, 524 S.E.2d 75, 77, appeal dismissed and disc. review denied, 352 N.C. 152, 544 S.E.2d 232 (2000).
    We further find that there was sufficient evidence on the record to sustain the conviction for entering. To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994)(citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). Here, defendant was seen entering the premises alleged in the indictment and was subsequently seen leaving with Sanchez' bag. Defendant did not have permission to enter the residence. Thus, in the light most favorable to the State, a jury could reasonably infer that defendant committed the offense of entering. Accordingly, the assignment of error is overruled.
    We next consider whether the trial court erred by submitting a verdict sheet that contained only a possible verdict of felonious entry. The court had previously instructed the jury that it could find defendant guilty if they found defendant broke or entered the victim's home. Defendant contends that the confusion robbed him of a unanimous verdict on a single charge and he is entitled to a new trial. We are not persuaded.
    “'It has long been the law in this State in prosecutions under this statute [G.S. 14-54] and its similar predecessors that where the indictment charges the defendant with breaking and entering, proof by the State of either a breaking or an entering is sufficient; and instructions allowing juries to convict on the alternative propositions are proper.'” State v. Reagan, 35 N.C. App. 140, 143-44, 240 S.E.2d 805, 808 (1978)(quoting State v. Boyd,287 N.C. 131, 145, 214 S.E.2d 14, 22 (1975)) (emphasis in original). In the case sub judice, there was no evidence presented of breaking, only entering. Thus, submission of only the issue of entering to the jury was proper.
    No error.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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