An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1083


Filed: 6 September 2005

    v.                    Pitt County
                            Nos. 02 CRS 1596, 01 CRS 59405

    Appeal by defendant from a judgment signed 20 September 2002 by Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 19 April 2005.

    Adrian M. Lapas for defendant-appellant.

    Attorney General Roy Cooper, by Assistant Attorney General Q. Shant. Martin, for the State.

    BRYANT, Judge.

    Tyrone Maurice Batts (defendant) appeals from a judgment signed 20 September 2002 following a jury verdict finding defendant guilty of felony breaking and entering, felony larceny and misdemeanor injury to personal property and habitual felon status.
    The State's evidence tended to show on 4 August 2001, at approximately 7:20 a.m., Detective Scott Staton saw defendant walking down Evans Street in Greenville, N.C. with stereo equipment and a briefcase in his hand. He was approximately twenty to thirty feet from the curb at Nicky Harris' address. Detective Statonapproached defendant and after defendant identified himself, Detective Staton inquired about the items defendant was carrying. Detective Staton identified one piece of equipment as an MP3 player/Sony Mini-Disk Player. Defendant told Detective Staton he had purchased the equipment two days prior on the street in exchange for sixty-five dollars worth of drugs. Based on this statement, Detective Staton suspected the items were stolen and took them to the police department for examination. The items Detective Staton took from defendant were a CD player, a Sony Mini-Disk player, and “some sort of control box, which controls lights so it will blink to the music.” The control box, also described by Detective Staton as a light and sound audio mixer, was inside the briefcase defendant was carrying and had Harris' name on it, with a note to Harris contained therein. At Harris' residence, Detective Staton discovered Harris' trailer had a broken lock, scratch marks near the locks, and there was a hacksaw on the ground next to the trailer. Detective Staton notified Harris of the trailer's condition. At the police station, Harris identified the items found in defendant's possession as his property and estimated the fair market value of the property was $1,300.00. Defendant presented no evidence.

    The issues on appeal are: whether the trial court erred by (I) denying defendant's motion to dismiss the charge of felony breaking and entering and felony larceny ; (II) denying defendant his right to a unanimous jury verdict on felony larceny ; (III) entering judgment as to felony larceny where a fatal variance existed between the indictment and the evidence presented at trial ; and (IV) entering judgment as to felony larceny where the indictment charged defendant with two theories by which he could be convicted of felony larceny, differing from the proof at trial so as to create a fatal variance.
    Defendant first contends the trial court erred by denying his motion to dismiss the charge of felonious breaking and entering .
    In considering a motion to dismiss, our Supreme Court has held:
        In reviewing challenges to the sufficiency of evidence, [the court] must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. . . . Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
        . . .

        In addition, the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence. The defendant's evidence that does not conflict may be used to explain or clarify the evidence offered by the State. When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.

State v. Scott, 356 N.C. 591, 596-97, 573 S.E.2d 866, 869 (citations omitted) (internal quotation marks omitted) , cert. denied, 537 U.S. 833, 154 L. Ed. 2d 50 (2002). 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. Friend, 164 N.C. App. 430, 438, 596 S.E.2d 275, 281 (2004); State v. Litchford, 78 N.C. App. 722, 725, 338 S.E.2d 575, 577 (1986).
    In the instant case we find the State presented sufficient evidence to withstand defendant's motion to dismiss. Defendant contends that a trailer is not a “building” within the meaning of N.C. Gen. Stat. § 14-54(a). “Building” is defined as “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) (2003) (emphasisadded). N.C. Gen. Stat. § 14-56 provides “[i]f any person, with intent to commit any felony or larceny therein, breaks or enters any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind, . . . that person is guilty of a Class I felony.” N.C.G.S. § 14-56 (2003).
    Here, defendant was indicted for breaking and entering Harris' trailer, which was used to store and transport musical equipment. Under N.C.G.S. § 14-54, trailers may qualify as “buildings” under various circumstances. N.C.G.S. § 14-54 (2003); See State v. Bost, 55 N.C. App. 612, 615, 286 S.E.2d 632, 634, disc. rev. denied, 305 N.C. 588, 292 S.E.2d 572 (1982). In Bost this Court held that whether a trailer qualified as a “building” under N.C.G.S. § 14-54 would depend upon the particular circumstances in each individual case. Bost at 616, 286 S.E.2d at 635. “They may qualify as 'buildings' if under the circumstances of their use and location at the time in question they have lost their character of mobility and have attained a character of permanence.” Id. at 615, 286 S.E.2d at 634 (emphasis added).
    Defendant contends Harris' trailer is not a building, that it did not have characteristics of permanence because the victim used his trailer to transport his musical equipment to different locations, because the trailer was not “blocked up,” because the trailer did not have flat tires, because the trailer could be“readily moved,” and because the State produced no evidence to show that the trailer remained stationary “for weeks or months.” We reject defendant's contentions as the evidence taken in the light most favorable to the State established the trailer was a permanent, locked storage facility for Harris' equipment.
     Although defendant attempted to distinguish the circumstances in Bost from the case at bar, the circumstances in Bost are analogous here. In Bost, a trailer on a construction site was used to store tools and equipment while a bridge was being built. Bost at 614, 286 S.E.2d at 634. The Court, while acknowledging the reasonable inference that the trailer on the construction site was mobile because it was moved from one construction site to another, nevertheless determined the construction trailer was “not being used and not intended to be used by the owner primarily to haul goods and personal property from place to place.” Bost at 615, 286 S.E.2d at 634. The Court also stated “it is clear that a trailer is a structure designed to secure property within and thus could be a 'building' within the meaning of N.C.G.S. § 14-54.” Id.
     In the instant case, Harris testified his trailer remains primarily at his residence until he has to perform with his band. He uses the trailer to store electronic music equipment and secures it with a lock until needed. Therefore, based on the reasoning of Bost, Harris' trailer had lost its character of mobility and hadattained a character of permanence at the time of the breaking and entering. See, e.g., Bost at 615, 286 S.E.2d at 634. Because , the State presented sufficient evidence as to the trailer's use (a storage facility for personal property) and character of permanence such that a rational juror could conclude that the trailer was a “building” within the meaning of N.C.G.S. . 14-54, the trial court properly denied defendant's motion to dismiss the charge of felony breaking and entering. This assignment of error is overruled.
    Defendant next argues the trial court erred by allowing the jury to convict based on alternate theories of felony larceny such that the verdict was not unanimous . We disagree.
    Our Supreme Court has held:
        Two lines of cases have developed regarding the use of disjunctive jury instructions. State v. Diaz stands for the proposition that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. In such cases, the focus is on the conduct of the defendant. In contrast, this Court has recognized a second line of cases standing for the proposition that 'if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.' In this type of case, the focus ison the intent or purpose of the defendant instead of his conduct. The present case falls into the Hartness line of cases.

State v. Bell
, 359 N.C. 1, 29-30, 603 S.E.2d 93, 112-13 (2004) (citations omitted) (emphasis supplied in original), cert. denied, ___ U.S. ___, 161 L. Ed. 2d 1094, 125 S. Ct. 2299 (2005).
    In State v. Hartness, our Supreme Court upheld a trial court's jury instruction where the trial court provided two methods by which the jury could convict the defendant of an indecent liberty. State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990). The Court in Hartness held “the crime of indecent liberties is a single offense which may be proved by evidence of the commission of any one of a number of acts.” Id. at 567, 391 S.E.2d at 180. Likewise, in the present case, the crime of felonious larceny is a single offense which may be proved by evidence of the larceny being committed pursuant to a breaking or entering or by evidence that there is a larceny of goods valued at more than $1,000.00. See N.C. Gen. Stat. § 14-72 (2003).
    Defendant acknowledges that under Hartness, “if . . . defendant is found guilty by the jury of the felony breaking or entering, an instruction [on felonious larceny] in the disjunctive that either act, larceny after the breaking or entering or larceny of goods over $1,000.00, will satisfy the elements of the offense.” The trial court in this case instructed the jury on feloniouslarceny as follows:
        Now, I charge for you to find the Defendant guilty of felonious larceny the State must prove six things beyond a reasonable doubt. First, that the Defendant took property belonging to another person. Second, that the Defendant carried away the property. Third, that the victim did not consent to the taking and carrying away of the property. Four, that at the time of the taking the Defendant intended to deprive the victim of its use permanently. Fifth, that the Defendant knew that he was not entitled to take the property. Six, either that the property was taken from a building after a breaking or entering or the property was worth more than $1,000.

This instruction is sufficient to survive defendant's unanimity challenge as to felony larceny. See State v. Galloway, 145 N.C. App. 555, 568, 551 S.E.2d 525, 534 (2001) (citation omitted) (“[I]f the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.”) .
    However, defendant further argues the breaking and entering charge was not supported by the evidence and there is no way to know whether some or all of the jurors relied upon this improper submission to support its verdict of felony larceny, thereby depriving defendant of his right to a unanimous jury verdict. Contrary to defendant's assertion, the State did produce substantial evidence of breaking and entering under N.C.G.S. § 14-54, so that jury submission was proper. See Issue I, supra. This assignment of error is overruled.
    Defendant next argues a fatal variance exists between the indictment charging defendant with felony larceny and the evidence presented at trial . We disagree.
    In order for a variance to warrant reversal, the variance must be material. State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002) (citation omitted). A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged. Id.; see also State v. Dawkins, 164 N.C. App. 780, 596 S.E.2d 906 (2004) (unpublished) (“[f]or th[e] variance to be fatal, the precise identity of the personal property must be an essential element of the crime”). “Whether the description of property in a larceny indictment is sufficient or so defective as to be void depends on whether the property alleged to have been taken is described with 'reasonable certainty.'” State v. Boomer, 33 N.C. App. 324, 329, 235 S.E.2d 284, 287, cert. denied, 293 N.C. 254, 237 S.E.2d 536 (1977). “Reasonable certainty is attained when the description reasonably informs the accused of the transaction meant, when it protects the accused in the event of subsequent prosecutions for the same offense, when it enables the court to see that the property described is the subject of larceny, and when it enables the jury to say that the article proved to bestolen is the same as the one described.” Id. at 329-30, 235 S.E.2d 287-88.
    Defendant argues the State produced no evidence he stole a mixing board, a drum machine, and a bass guitar, although the indictment alleges he had stolen these items. Contrary to defendant's allegation, evidence produced at trial indicated that “mixing board,” “light and sound mixer,” “control box,” and “NSI controlled computer” used to “make . . . the lights blink to the music,” were all multiple descriptions of the same item and referred to as a “mixing board” in the indictment . Here, Harris testified he was missing a mixer, a bass guitar, and a drum machine. Detective Staton recovered a light and sound mixer, a Mini-Disk player, and CD player from defendant all of which Harris identified as his property from his trailer. Based on the evidence presented, there was no material variance between the evidence and the indictment. This assignment of error is overruled.
    Defendant argues here, similar to his argument in Issue II, that a fatal variance exists where the State produced evidence to support two theories of committing felonious larceny.
    “Where an indictment sets forth conjunctively two means by which the crime charged may have been committed, there is no fatal variance between indictment and proof when the state offersevidence supporting only one of the means charged.” State v. Rawlins, 166 N.C. App. 160, 163, 601 S.E.2d 267, 270 (2004) (quotation omitted).
    The indictment in the present case charged that defendant “unlawfully, willfully and feloniously did steal, take and carry away . . . the personal property of [the victim], having a value of Two Thousand Fifty Dollars ($2,050.00), pursuant to the commission of felonious breaking and entering.” Here, the State offered evidence to support two theories by which defendant could commit felony larceny - taking property with a value greater than $1,000.00 or committing a larceny after breaking and entering a building. The evidence presented was sufficient to support either theory to prove defendant committed the single offense of felony larceny. Therefore, we find there is no fatal variance between the allegations in the indictment and the proof at trial. Accordingly, and for the reasons stated in Issue II above, this assignment of error is overruled.     
    No error.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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