An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 October 2006
STATE OF NORTH CAROLINA
v. Lenoir County
No. 05 CRS 050931
CLAYTON FERNANDO CLARK, JR.
Appeal by defendant from judgment entered 1 November 2005 by
Judge Paul L. Jones in Lenoir County Superior Court. Heard in the
Court of Appeals 2 October 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Elizabeth Leonard McKay, for the State.
Terry F. Rose, for defendant-appellant.
Clayton Fernando Clark, Jr. (defendant) appeals from
judgment entered after a jury found him to be guilty of
of a stolen motor vehicle
. We find no error.
The State's evidence tended to show
that on 24 January 2005
Officer James Gwartney (Officer Gwartney) received
information from a confidential informant that defendant was in
possession of a stolen vehicle
. Officer Gwartney listened as the
informant called defendant over a speaker phone to discuss
purchasing the stolen vehicle. During the conversation, the
informant called defendant Clay and defendant stated that he had
a GMC Yukon. Defendant and the informant negotiated a sale priceof $1,500.00
for the vehicle and agreed to meet at the Friendly
Grocery Store to complete the transaction. Defendant arrived at
the location in a blue GMC Yukon and was paid $1,500.00 for the
vehicle. Subsequently, officers determined that the vehicle had in
fact been stolen.
Mike Mozingo, owner of Triple M Auto Sales, testified that his
used car dealership was the owner of the stolen vehicle, and had
reported the vehicle stolen on 5 November 2004.
On 13 July 2005, defendant was indicted on charges of
possession of a stolen motor vehicle
and possession of stolen
goods. The indictments alleged that the vehicle was the property
of Triple M Motors.
At the close of the State's evidence, the
State moved to correct the indictment to reflect that the owner of
the vehicle was Triple M Auto Sales. The motion was allowed.
A jury found
defendant to be guilty of possession of a stolen
motor vehicle. The trial court sentenced him to an active term of
eight to ten months imprisonment.
Defendant argues that the trial court erred by: (1) allowing
the State's motion to amend the indictment and (2) allowing an
audio recording of the conversation between him and the informant
III. Amendment of Indictment
Defendant asserts that the amendment was a substantial
alteration and should not have been allowed pursuant to N.C.
Gen. Stat. § 15A-923(e) (2005) states,[a] bill of indictment may not be amended. However, N.C.
has been construed to mean only that an
indictment may not be amended in a way which 'would substantially
alter the charge set forth in the indictment.' State v. May, 159
N.C. App. 159, 162, 583 S.E.2d 302, 304 (2003) (quoting State v.
Carrington, 35 N.C. App. 53, 240 S.E.2d 475, disc. rev. denied, 294
N.C. 737, 244 S.E.2d 155 (1978)). The trial court's allowance of
an amendment of an indictment would not constitute reversible error
unless the item amended was an essential element of the offense.
Id; see also State v. Brady, 147 N.C. App. 755, 759, 557 S.E.2d
148, 151 (2001) (No error where the indictment was amended,
changing the controlled substance named from Xanax to Percocet,
because the change did not substantially alter the charge against
IV. Possession of Stolen Vehicle
Defendant was charged with possession of a stolen motor
A defendant charged with possession of stolen
property under G.S. 14-71.1 or possession of a
stolen vehicle under G.S. 20-106 may be
convicted if the State produces sufficient
evidence that defendant possessed stolen
property (i.e., a vehicle), which he knew or
had reason to believe had been stolen or
State v. Bailey, 157 N.C. App. 80, 83-84, 577 S.E.2d 683, 686
(2003) (citing State v. Lofton, 66 N.C. App. 79, 83, 310 S.E.2d
633, 635-36 (1984)). Here, the indictment was solely changed from
Triple M Motors to Triple M Auto Sales, the name of the owner
of the vehicle
. The name of the owner of the vehicle from whom it was stolen
is not an essential element of the offense. A variance between the
indictment's allegation of ownership of the vehicle and the proof
of ownership is not fatal. See State v. Jones, 151 N.C. App. 317,
327, 566 S.E.2d 112, 119, cert. denied, 540 U.S. 842, 157 L. Ed. 2d
; State v. Medlin, 86 N.C. App. 114, 124, 357 S.E.2d 174,
180 (1987); see also N.C. Gen. Stat § 14-71.1 (2005); N.C. Gen.
Stat. § 20-106 (2005).
We hold the change in the indictment to
reflect the owner of the vehicle from Triple M Motors to Triple
M Auto Sales did not substantially alter the indictment against
defendant. This assignment of error is overruled.
V. Admission of Audio Recording
Defendant next argues the trial court erred by allowing an
audio recording of the conversation between defendant and the
informant into evidence.
Defendant contends the admission of the
recording violated his right to confront and cross-examine the
informant, who was not present at trial. See generally, Crawford
v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).
Defendant failed to preserve this argument on appeal or to
raise this argument at trial. Defendant objected to the admission
of the evidence based on N.C. Gen. Stat. § 15A-287, which prohibits
the interception and disclosure of wire, oral or electronic
communications without the consent of at least one party to the
Our Supreme Court has long held that where a
theory argued on appeal was not raised before
the trial court, the law does not permit
parties to swap horses between courts in orderto get a better mount in the appellate courts
. . . The defendant may not change his
position from that taken at trial to obtain a
steadier mount on appeal.
State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685
(2002) (quotations omitted); see State v. Monk, 132 N.C. App. 248,
254, 511 S.E.2d 332, 336, disc. rev. denied, 350 N.C. 845, 539
S.E.2d 1 (1999) ('In order to preserve a question for appellate
review, a party must have presented to the trial court a timely
request, objection or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific grounds
were not apparent from the context.' (quoting N.C.R. App. P.
Defendant did not raise this argument at trial and
cannot assert this argument for the first time on appeal. This
assignment of error is dismissed.
The trial court properly allowed the State to substitute the
actual name of the owner of the stolen vehicle in the indictment.
This change did not alter the charges against defendant. Defendant
received a fair trial free from prejudicial errors he preserved,
assigned, and argued.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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