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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1378


Filed: 17 July 2007


v .                                  Iredell County
                                     Nos. 04CRS57839-41

    Appeal by defendant from judgments entered 10 May 2006 by Judge Ronald K. Payne in Iredell County Superior Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.

    Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, for defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals judgments entered after a jury verdict of guilty of possession of a firearm by a felon, assault with a deadly weapon inflicting serious injury, attempted armed robbery, and three counts of attempted common law robbery. We determine there was no prejudicial error.

    Anthony Dewayne Daye (“defendant”) was indicted for possession of a firearm by a felon, assault with a deadly weapon inflicting serious injury, armed robbery, and three counts of attempted armed robbery. The State presented evidence at trial which tended to show the following:    Brandon Jackson was riding in a vehicle with his friend, Kenneth Edgerton, Jr., his mother Diana Jackson, and her boyfriend, Michael Kittrell. They stopped by a self-serve car wash. Mr. Jackson, Mr. Kittrell and Ms. Jackson stepped out of the van. A white car pulled up and two men with their faces covered got out of the car armed with guns. Mr. Jackson tried to run, but he slipped and fell. One of the men pointed a gun at his face and told him to stay down. The perpetrator demanded money and marijuana. Mr. Jackson gave the perpetrator his cell phone, a pack of cigarettes, and some money. One of the perpetrators held a gun in Mr. Kittrell's face and demanded money and drugs. Mr. Kittrell told the perpetrator he did not have anything and the perpetrator ordered Mr. Kittrell to get down. Mr. Kittrell did not get down, so the perpetrator hit him on his head with the gun. As a result of being hit on the head with the gun, Mr. Kittrell's head required four staples. One of the perpetrators asked Ms. Jackson if she had anything. Ms. Jackson said she did not have anything. The perpetrators rushed toward Mr. Edgerton and asked him if he had anything. He said he did not have anything, and the perpetrators left the scene.
    Officer Rance Young of the Statesville Police Department testified that he received a call regarding a robbery. The officer saw a vehicle traveling at a high rate of speed matching the description of the car from the dispatch. The officer stopped the vehicle and found the stolen cell phone and $111.00 on the backseat passenger, Brandon Adams. The officer identified defendant as oneof the people who was sitting in the car. Officers found two guns in the front yard of a house not far from where defendant was apprehended.
    Brandon Adams testified that he was with defendant and Dorey Joyner on the day of the robbery. Mr. Adams said that he and defendant got out of the car at the car wash together. He testified that defendant was armed. He admitted to taking cigarettes, money and a cell phone from the man who slipped and fell to the ground. Although Mr. Adams did not see what defendant did, when they got back into their car, defendant said he “smacked him.” He said they were stopped by the police a couple of blocks away. He said he did not know what happened to the guns, but he speculated that they must have been thrown out of the window of the car.
    The jury found defendant guilty of common law robbery, two counts of attempted common law robbery, attempted armed robbery, assault with a deadly weapon inflicting serious injury, and possession of a firearm by a felon. Defendant appeals.
    Defendant contends the trial court erred by failing to arrest judgments for attempted armed robbery because of a fatal variance between the indictments and the evidence at trial. We disagree.
    Here, the indictments alleged, in pertinent part, that defendant did “steal, take and carry away and attempt to steal, take and carry away another's personal property, to wit: property of unknown value” from Kenneth Edgerton, Jr., Diana Jackson, andMichael Kittrell. (Emphasis added.) However, the North Carolina General Statute clearly states:
        Any person . . . having in possession or with the use or threatened use of any firearms . . ., whereby the life of a person is endangered or threatened, unlawfully takes or attempts to take personal property from another . . . shall be guilty of a Class D felony.

N.C. Gen. Stat. § 14-87 (2005) (emphasis added). Defendant argues that the evidence at trial was that no property was stolen, taken or carried away from the alleged victims, and thus, this variance between the allegations of the indictment and the evidence at trial should have resulted in a dismissal of these charges at the close of the State's evidence.
    “'“ Where a statute sets forth disjunctively several means or ways by which the offense may be committed, a warrant thereunder correctly charges them conjunctively.”'” State v. Armstead, 149 N.C. App. 652, 654, 562 S.E.2d 450, 452 (2002) (citations omitted). “'The indictment should not charge a party disjunctively or alternatively, in such a manner as to leave it uncertain what is relied on as the accusation against him.'” Id. at 654-55, 562 S.E.2d at 452 (citation omitted). “'The proper way is to connect the various allegations in the indictment with the conjunctive term “and,” and not with the word “or.”'” Id. at 655, 562 S.E.2d at 452 (citation omitted). In addition, “[t]he purpose of . . . [an] indictment is to put the defendant on notice of the offense with which he is charged and to allow him to prepare a defense to that charge.” State v. Lancaster, 137 N.C. App. 37, 48, 527 S.E.2d 61,69, disc. review denied, 352 N.C. 680, 545 S.E.2d 723 (2000). Here, the indictment cited N.C. Gen. Stat. § 14-87, so defendant was on notice. Accordingly, we disagree with defendant.
    Defendant contends the trial court lacked jurisdiction on the charges of attempted robbery, because the indictments were fatally defective for failing to identify the property which defendant attempted to steal. We disagree.
    Generally it is “'true tha[t] an indictment need only allege the ultimate facts constituting the elements of the criminal offense.'” State v. Thomas, 153 N.C. App. 326, 335, 570 S.E.2d 142, 147 (citation omitted), appeal dismissed, disc. review denied, 356 N.C. 624, 575 S.E.2d 759 (2002). “The elements need only be alleged to the extent that the indictment (1) identifies the offense; (2) protects against double jeopardy; (3) enables the defendant to prepare for trial; and (4) supports a judgment on conviction.” Id.
    In State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971), overruled on other grounds by State v. Hurst, 320 N.C. 589, 359 S.E.2d 776 (1987), the indictment charged defendant with “. . . carry[ing] away U.S. currency of the value of ____ from the presence, person, place of business, and residence of . . ..” Id. at 698, 178 S.E.2d at 443. The defendant contended the indictment was “fatally defective in that it did not specify the value of the property involved.” Id. at 700, 178 S.E.2d at 444. Our Supreme Court concluded:        The gist of the offense as described in this indictment is the attempt to commit robbery by the use or threatened use of firearms. The force or intimidation occasioned by the use or threatened use of firearms is the main element of the offense. In such a case, it is not necessary or material to describe accurately or prove the particular identity or value of the property, provided the indictment shows that the property was that of the person assaulted or under his care, and that such property is the subject of robbery and that it had some value.

Id. at 700, 178 S.E.2d at 444.
    Here, the indictments were sufficient. The indictments read in pertinent part:
        [T]he defendant named above unlawfully, willfully and feloniously did steal, take and carry away and attempt to steal, take and carry away another's personal property, to wit: property of an unknown value, from the presence, and person of [Kenneth Edgerton, Jr., Diana Jackson, Michael Kittrell]. The defendant committed this act by means of an assault consisting of having in his possession and with the use and threatened use of a firearm, to wit: a handgun, whereby the lives of Michael Kittrell, Diana Jackson, Brandon Jackson and Kenneth Edgerton, Jr. were endangered and threatened.

They clearly illustrate that the alleged crime was committed by means of an assault with the use or threatened use of a firearm. In addition, although the language is somewhat vague regarding the property which defendant attempted to steal, the indictments clearly state the property had an “unknown value” which can be interpreted as the property having some value. Further, the evidence shows that the perpetrators demanded money, drugs, or “anything.” It is difficult to put a value on property when theperpetrators were so vague as to exactly what they wanted. Accordingly, we disagree with defendant.
    Defendant contends the trial court erred in admitting evidence of guns when there was no evidence connecting those weapons to the crime. We disagree.
    At trial, the court allowed the admission of two guns, along with pictures of the guns, found approximately three or four minutes from the scene of the crime. Defendant argues that there was no evidence tying the guns to the crime. However, even assuming arguendo that it was error to admit this evidence, we hold that it was not prejudicial in light of the overwhelming amount of evidence presented by the State. After reviewing the record and transcript in this case, we are unpersuaded that, but for this evidence, defendant would have been acquitted of the crimes charged. See N.C. Gen. Stat. § 15A-1443(a) (2005). Accordingly, we disagree with defendant.
    No prejudicial error.
    Chief Judge MARTIN and Judge TYSON concur.
    Report per Rule 30(e).

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