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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
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STATE OF NORTH CAROLINA v. PIERRE TOREZ-OMAR FARRAR
Filed: 19 September 2006
1. Robbery--attempted robbery with dangerous weapon--motion to dismiss--
sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
attempted robbery with a dangerous weapon based on alleged insufficient evidence that
defendant took or attempted to take any property from either of the two victims, because: (1) in
the light most favorable to the State, a reasonable person could conclude that defendant and two
others, while acting in concert, attempted to rob one of the victims of her pocketbook; and (2)
even though one of the men dropped the pocketbook upon hearing there was no money in it, the
grabbing of the pocketbook was an overt act calculated to deprive the victim of her personal
2. Burglary and Unlawful Breaking or Entering--allegation of specific felony for
The trial court committed plain error by instructing the jury that in order to convict
defendant of the offense of first-degree burglary, the State had to prove he committed the
burglary with the intent to commit the felony of robbery with a dangerous weapon when the
indictment alleged that defendant committed burglary with the intent to commit larceny.
Appeal by defendant from judgments entered 17 March 2005 by
Judge L. Todd Burke in Guilford County Superior Court. Heard in
the Court of Appeals 21 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Elliott, for the State.
Parish & Cooke, by James R. Parish, for defendant appellant.
Defendant appeals from the trial court's denial of his motion
to dismiss the charges of attempted robbery and first-degree
burglary and asserts that, as to the charge of first-degree
burglary, there was a fatal variance between the indictment and the
instructions given by the trial judge to the jury. We find no errorin the denial of the motion to dismiss but reverse and vacate the
conviction of first-degree burglary.
On 18 January 2005, defendant Pierre Torez-Omar Farrar
robbery with a dangerous weapon and first-degree
burglary. On 7 February 2005, defendant was also indicted for
attempted robbery with a dangerous weapon. The case was tried at
the 14 March 2005 Criminal Session of Guilford County Superior
The State presented evidence at trial which tended to show the
On 22 March 2004, defendant, along with Brandon Williams
and a man named Verdelle, went to a residence on Avalon Road in
Guilford County. The three men got on the porch, put shirts over
their faces and put latex gloves on their hands. Verdelle then
kicked the door in and walked into the house with a gun, followed
by Williams and defendant. Inside the house were Mollie Slade, her
sister Darlene Slade, Darlene's two children, and Mollie's sons
Lamar and Demar. Lamar came out of the back of the house, and
Verdelle pointed a gun at him. A chain was taken from around
Lamar's neck, and Verdelle walked into Lamar's room and took a
Playstation, some games, and a VCR. Williams kept watch on Mollie
and Darlene while defendant walked up and down the hallway, looking
through rooms. Meanwhile, the men kept asking, Where is it? Where
is the money? and Where is the stuff?
Finally, before leaving,
one of the men picked up Darlene's purse and asked her if there was
any money in it. When she said no, the man dropped the pocketbookand the three men left.
At the close of the evidence, the judge instructed the jury on
the charge of first-degree burglary as follows:
Now, I charge that for you to find the
defendant guilty of first-degree burglary, the
State must prove six things beyond a
reasonable doubt. . . .
. . . .
And sixth, that at the time of the
breaking and entering, the defendant intended
to commit robbery with a firearm. Or attempted
to commit robbery with a firearm.
Defendant was convicted of robbery with a dangerous weapon,
attempted robbery with a dangerous weapon and first-degree burglary
and was sentenced to consecutive terms of seventy-two to ninety-six
Defendant now appeals.
Defendant first argues that there was insufficient
evidence to sustain the conviction for attempted robbery with a
dangerous weapon and that the trial court erred in denying his
motion to dismiss such charges. Specifically, defendant contends
that the State failed to present substantial evidence that he took
or attempted to take any property from Mollie or Darlene Slade.
After careful review of the records, briefs and contentions of the
parties, we find no error.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the chargedoffense. 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).
The essential elements of robbery with a dangerous weapon are:
(1) an unlawful taking or an attempt to take personal property
from the person or in the presence of another, (2) by use or
threatened use of a firearm or other dangerous weapon, (3) whereby
the life of a person is endangered or threatened. State v. Call,
349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998); see also N.C. Gen.
Stat. § 14-87 (2005).
The elements of attempt are an intent to
commit the substantive offense and an overt act which goes beyond
mere preparation but falls short of the completed offense. State
v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003)
denied, 541 U.S. 1088, 159 L. Ed. 2d 252 (2004). Thus, '[a]n
attempted robbery with a dangerous weapon occurs when a person,
with the specific intent to unlawfully deprive another of personal
property by endangering or threatening his life with a dangerous
weapon, does some overt act calculated to bring about this
result.' State v. Gillis, 158 N.C. App. 48, 56, 580 S.E.2d 32, 38
(citations omitted), disc. review denied, 357 N.C. 508, 587 S.E.2d887 (2003).
In the instant case, in the light most favorable to the State,
a reasonable person could conclude that defendant, Williams, and
Verdelle, while acting in concert, attempted to rob Darlene of her
pocketbook. After the men entered the house with a gun drawn, one
of the men grabbed the pocketbook and asked Darlene if it contained
any money. Only when he was told that it did not did he
pocketbook. We conclude this evidence was sufficient to show that
there was an attempted taking. The grabbing of the pocketbook was
an overt act calculated to deprive Darlene of her personal
, the trial court did not err by denying the
motion to dismiss.
Defendant next argues that the trial court
error by instructing the jury that in order to convict him of the
offense of first-degree burglary, the State must prove he committed
the burglary with the intent to commit the felony of robbery with
a dangerous weapon, whereas the indictment alleged that defendant
committed burglary with the intent to commit larceny. Because we
find this variation between the indictment and jury instructions to
be prejudicial error, we reverse and vacate defendant's conviction
of first-degree burglary.
The plain error rule 'allows review of fundamental errors or
defects in jury instructions affecting substantial rights, which
were not brought to the attention of the trial court.' State v.
, 87 N.C. App. 626, 634-35, 362 S.E.2d 288, 293 (1987)(citation omitted). In order to obtain relief under this doctrine,
defendant must establish that the omission was error, and that, in
light of the record as a whole, the error had a probable impact on
the verdict. Id
. at 635, 362 S.E.2d at 293.
The essential elements of first-degree burglary are: (1)
breaking or entering, (2) the occupied dwelling house of another,
(3) in the nighttime, (4) with the intent to commit a felony
therein. State v. Montgomery
, 341 N.C. 553, 566, 461 S.E.2d 732,
739 (1995); see also State v. Scott
, 150 N.C. App. 442, 455, 564
S.E.2d 285, 295, appeal dismissed and disc. review denied
, 356 N.C.
443, 573 S.E.2d 508
N.C. Gen. Stat. § 14-51 (2005). While
the intent to commit a felony therein is an element of the offense,
the specific felony need not be stated in the indictment. See State
, 336 N.C. 268, 281, 443 S.E.2d 68, 74 (1994) (indictment
for first-degree burglary satisfied the requirements of N.C. Gen.
Stat. § 15A-924(a)(5) notwithstanding the fact that it did not
specify the felony defendant intended to commit when he entered the
victim's apartment). Thus, [b]ecause the State is only required
in the indictment to allege that the defendant intended to commit
felony, . . . any language in the indictment which states with
specificity the felony defendant intended to commit is surplusage
which may properly be disregarded. State v. Roten
, 115 N.C. App.
118, 122, 443 S.E.2d 794, 797 (1994)
Although the State is not required to allege a specific felony
in a burglary indictment, our Supreme Court has recently held that,
when the State has alleged an intent to commit a specific felony,such an allegation serves as notice to the defendant of the State's
theory of the offense. State v. Silas
, 360 N.C. 377, 381, 627
S.E.2d 604, 608 (2006).
, the indictment charging the defendant with the
offense of felonious breaking and entering alleged that 'on or
about the 9th day of July, 1999, in Mecklenburg County, James
Emanuel Silas unlawfully and wilfully did feloniously break and
enter a building occupied by Rhonda Silas, used as a residence,
located at . . . Charlotte, North Carolina, with the intent to
commit a felony therein, to wit: murder.' Id.
at 379, 627 S.E.2d
at 606. At the charge conference, following the evidentiary
portion of the trial, the trial court informed the parties that it
intended to instruct the jury that in order for the jury to find
the defendant guilty of the offense of felonious breaking or
entering, they, the jury, had to find that the defendant intended
to commit the felony of assault with a deadly weapon with intent to
kill inflicting serious injury or assault with a deadly weapon
inflicting serious injury. Where the instructions deviated from
the allegations set forth in the indictment, the assistant district
attorney orally moved to amend the indictment to conform to the
evidence and the anticipated jury instructions which the trial
The North Carolina Supreme Court recently stated, [w]hen the
prosecution amends an indictment for felonious breaking and
entering in such a manner that the defendant can no longer rely
upon the statement of the intended felony in the indictment, suchan amendment is a substantial alteration and is prohibited by
N.C.G.S. § 15A-923(e). Id.
at 382, 627 S.E.2d at 607. To allow
such practice would enable the State to thwart the very purpose of
an indictment, 'to enable the accused to prepare for trial.'
In the instant case, the indictment alleged that defendant
committed the offense of first-degree burglary by breaking and
entering with the intent to commit a felony therein, larceny. The
jury was subsequently instructed that in order to convict defendant
of first-degree burglary, that they must find that he broke and
entered with the intent to commit the felony of robbery with a
dangerous weapon. Unlike Silas
, there was no amendment or motion to
amend the indictment made by the State, however, the outcome was
the same; the jury was instructed and defendant convicted of a
crime of which he was not given sufficient notice in order to
enable him to prepare an adequate defense. See id.
at 382, 627
S.E.2d at 608. We find that the same analysis applied by the
Supreme Court in Silas
is applicable in the instant case, and
therefore it must be held that while there is no requirement that
an indictment for first-degree burglary contain specific
allegations of the intended felony, if an indictment does
specifically allege the intended felony, the State must prove that
particular felony and no amendments may be had.
Therefore, it is axiomatic that where the State alleges an
intent to commit a specific felony as an element of burglary in the
indictment, such as in the instant case, that the jury be requiredto find defendant possessed the intent to commit the specific
felony alleged in order to convict on the charge.
Based on the
foregoing conclusion, it is unnecessary to address the remaining
assignment of error asserted by defendant on appeal.
Accordingly, the trial court correctly denied the motion to
dismiss the charge of attempted robbery with a dangerous weapon,
but the trial court's instructions to the jury as to first-degree
burglary created a fatal variance in the indictment and resulted in
Therefore, the conviction of first-degree
burglary must be vacated and remanded for entry of judgment of non-
felonious breaking and entering. Further, the record on appeal
contains additional assignments of error which are not properly
addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error in part and vacated in part and remanded for entry of
judgment of non-felonious breaking and entering.
Chief Judge MARTIN and Judge HUNTER concur.
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