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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 17 July 2007
STATE OF NORTH CAROLINA
ANTHONY DEWAYNE DAYE
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.
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
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
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
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
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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