An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1582


Filed: 19 July 2005


         v.                        Henderson County
                                Nos. 03 CRS 55975,
LAFOY BALL, JR.,                        04 CRS 2631

    Appeal by defendant from judgments entered 13 July 2004 by Judge E. Penn Dameron in the Superior Court in Henderson County. Heard in the Court of Appeals on 20 June 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.

    Ronald E. Justice, Jr., for defendant-appellant.

    HUDSON, Judge.

    Defendant Lafoy Ball, Jr., was charged with felonious breaking and entering, felonious larceny and felonious possession of stolen goods. By a separate bill of indictment, defendant was charged with having attained the status of habitual felon. A jury found defendant guilty of felonious breaking and entering, felonious larceny and felonious possession of stolen goods. Prior to the trial on defendant's habitual felon status, the State moved to amend the habitual felon indictment to change the name of the predicate offense in file number 01 CRS 64656 from habitual driving while impaired to possession of a schedule II controlled substance. The trial court allowed the motion over defendant's objection. After hearing testimony from the Deputy Clerk of the Henderson County Clerk's Office, the jury found defendant guilty of attaining habitual felon status. The trial court arrested judgment on the possession of stolen goods conviction, consolidated the larceny into the breaking and entering case, and sentenced defendant as a Class C felon to 100 to 129 months imprisonment. Defendant appeals. As discussed below, we see no error.
    The State's evidence tended to show that on the afternoon of 20 September 2003, Paul Evington was watching television in his living room when he noticed a pick-up truck pull up to the back of his next door neighbor's house. Charles Murphy owned the house and his daughter lived in it. One man got out of the truck and walked to the front of the house, while another man waited outside the truck. The first man returned from the front of the house and placed a stack of lawn chairs into the back of the truck. The man who had been waiting placed an outdoor smoker into the back of the truck. The two men got back into the truck and drove around to a freestanding storage building on the Murphy premises.
    Evington observed the larger of the two men try to kick in the door of the storage building. The two men then went around to the side of the building and Evington heard glass break. A few minutes later, when Evington saw the men come out through the door of the storage building carrying boxes, he telephoned 911. The men loaded several boxes from the storage building into the truck, and then drove away at a high rate of speed. Evington walked over to Murphy's storage house and noticed the screen had been torn off thewindow and the glass had been broken. Soon after, the police arrived. Evington informed the police that the truck was a late model Ford King Cab pick-up truck with the words “. . . & Sons” written on the side of the truck. Evington described the driver as approximately 5'8", weighing 145 pounds, wearing a white cutoff sleeve shirt with blue jeans. He recalled the passenger as approximately 5' 11", weighing 200 pounds, wearing an olive colored shirt and blue jeans. At trial, Murphy testified that some Christmas lights and drop cords had been taken from his storage building and that he had not given anyone permission to take the items. Murphy's daughter testified that her smoker and lawn chairs had been taken and that she had not given anyone permission to take the items or to enter the storage building.
    An hour later, a Mr. Allison of Gash Road, notified the Henderson County Sheriff's Department that defendant had come to his house trying to sell him some extension cords and that he had turned defendant away. A Sheriff's Department sergeant encountered the pick-up truck on Broyles Road and gave chase. The pick-up truck stopped at the end of a dirt driveway off of Broyles Road, and defendant got out and ran into the woods. Two sergeants pulled their patrol vehicles behind the truck and chased defendant on foot into the woods. Defendant, who was wearing blue jeans and a greenish-tan colored shirt, eventually dropped to his knees and was taken into custody. The truck was a silver F-150 extended-cab pick up truck with the words “Ball and Son Roofing” on the door. Items taken from the Murphy residence and storage building were found inthe pick-up truck.
    Defendant contends the trial court erred in denying his motion to dismiss the larceny charge based upon insufficient evidence. We disagree.
    To withstand a motion to dismiss, the State must present substantial evidence of each essential element of the offense and of the defendant's identity as the perpetrator. State v. Riddle, 300 N.C. 744, 746, 268 S.E.2d 80, 81 (1980). Substantial evidence is that relevant evidence “which a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996). To convict a defendant of felonious larceny, it must be shown that he: (1) took the property of another, (2) with a value of more than $ 1,000.00, (3) carried it away, (4) without the owner's consent, and (5) with the intent to deprive the owner of the property permanently. State v. Reeves, 62 N.C. App. 219, 223, 302 S.E.2d 658, 660 (1983); N.C.G.S. § 14-72(a) (2003).
    Defendant argues that there was insufficient evidence to prove an intent to deprive Murphy of his property permanently. Here, theState's evidence showed that Murphy's storage building was forcibly entered, Christmas lights and drop cords were taken without Murphy's permission and that police found the items in defendant's pick-up truck after defendant had tried to sell the items to a Mr. Allison. This evidence is sufficient for a reasonable juror to conclude that defendant intended to deprive Murphy of his property permanently. Accordingly, the trial court properly denied defendant's motion to dismiss.
    Defendant also contends the trial court violated N.C.G.S. § 15A-923(e) (2003) by improperly amending the habitual felon indictment. In this case, the grand jury returned a true bill of indictment charging that defendant had attained habitual felon status. To support the charge, the indictment alleged that defendant had been convicted of three counts of Habitual Impaired Driving: in file number 99 CRS 51656 on 23 August 1999 in Henderson County, in file number 01 CRS 64656 on 5 August 2002 in Buncombe County and in file number 03 CRS 57149 on 17 December 2003 in Buncombe County. Defendant, however, had been convicted of possession of a controlled substance in file number 01 CRS 64656. The trial court granted the State's motion to strike the words “Habitual Impaired Driving” in case number 01 CRS 64656 and insert in lieu thereof “Felony Possession of Schedule II Controlled Substances”. Defendant argues that changing the name of one of the predicate felonies substantially altered the charge and “deprive[d] [him] of crucial notice that could [have] affect[ed] his approach to the defense of his case.”     Section 15A-923(e) instructs that “[a] bill of indictment may not be amended.” The statute does not define the term “amendment.” Our courts, however, have defined the term to mean “any change in the indictment which would substantially alter the charge set forth in the indictment.” State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978). “It is well established that an indictment is sufficient under the Habitual Felons Act if it provides notice to a defendant that he is being tried as a recidivist.” State v. Williams, 99 N.C. App. 333, 335, 393 S.E.2d 156, 157 (1990). The habitual felon indictment must set forth “the date that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.” N.C.G.S. § 14-7.3 (2003).
    Here, the original indictment charged defendant with attaining habitual felon status based on three predicate felonies. Although the indictment did not list the correct offense name for the second predicate felony, the indictment stated that defendant had committed the felony on 28 November 2001 in file number 01 CRS 64656 and in Buncombe County. We conclude that listing the file numbers for the three predicate offenses with their respective offense date, conviction date and County Court name was sufficient to give defendant the required notice that he was being tried as a recidivist. The defendant could not have been misled or surprisedas to the nature of the charge against him, and the substitution of “possession of a schedule II controlled substance” for “habitual driving while impaired” did not amount to an impermissible amendment of the indictment under N.C.G.S. § 15A-923(e) as it did not alter the charge of attaining habitual felon status. See State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519 (1994)(holding that it was the fact that another felony was committed, not its specific date, which was the essential question in the habitual felon indictment). Accordingly, the trial court properly allowed the State to change the habitual felon indictment.
    No error.
    Judges MCGEE and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***