Opinion
No. COA09-1274
Filed 15 June 2010 This case not for publication
Appeal by Defendant from judgment entered 19 May 2009 by Judge A. Robinson Hassell in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Assistant Attorney General Kathryn J. Thomas, for the State. Ryan McKaig for Defendant.
Mecklenburg County No. 08 CRS 201325.
I. Procedural History
Defendant was indicted on 28 April 2008 for felonious larceny. A superseding indictment was returned on 30 March 2009. Defendant was tried before a jury and found guilty of felonious larceny on 18 May 2009. The trial court sentenced Defendant to six to eight months imprisonment. The sentence was suspended and Defendant was placed on supervised probation for 24 months and ordered to pay costs and restitution totaling $2,872.00. From the judgment entered, Defendant appeals.
II. Evidence
The State's evidence tended to show that on 17 August 2007, Charles Ashe ("Ashe") was employed by Steve Moore Chevrolet, LLC ("Steve Moore") as an assistant parts manager in the parts department. Ashe received a telephone call from Defendant regarding the price of a transmission for a Chevrolet truck. Defendant had ordered another part which was ready to be picked up. Therefore, Ashe placed an order with a wholesale distributor for the transmission so that Defendant could pick up both parts at the same time.
On 23 August 2007, Defendant went to Steve Moore to pick up the other part. At that time, Ashe informed Defendant that the transmission was also in and ready to be picked up. Defendant advised Ashe that he did not have the capacity to pick up the transmission that day so he would return with a truck to pick it up later.
On 7 September 2007, Defendant returned to pick up the transmission. After Ashe processed Defendant's invoice and warranty, he directed Defendant to the cashier. While Defendant was at the cashier's counter, Ashe had a forklift operator prepare to load the transmission into Defendant's truck. Defendant backed his truck in and the transmission was loaded onto the bed of the truck. When Ashe approached Defendant to get his initials on the invoice, Defendant drove away. Ashe immediately went to the cashier and was informed that Defendant had not paid for the transmission.
Ashe telephoned Defendant several times. When Ashe reached Defendant by phone, Defendant told Ashe that he had intended to pay for the transmission but something had come up. Defendant advised Ashe that he would come in the following day, a Saturday, and pay for the transmission. Defendant never showed up. On Monday, Ashe told his supervisor what had occurred and contacted the police. The transmission was never recovered and never paid for.
III. Discussion
On appeal, Defendant argues that the trial court erred in denying his motion to dismiss based on Defendant's allegation that a fatal variance existed between the indictment and the evidence presented at trial. Defendant argues that the indictment erroneously alleged that the transmission belonged to Steve Moore Chevrolet LLC, while the evidence at trial tended to show that Steve Moore Chevrolet LLC was not the owner of the transmission.
"A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged." State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971). "The issue of variance between the indictment and proof is properly raised by a motion to dismiss." State v. Baldwin, 117 N.C. App. 713, 717, 453 S.E.2d 193, 195, cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995). Pursuant to the North Carolina Rules of Appellate Procedure,
[i]f a defendant makes [a motion to dismiss] after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal . . . made at the close of [the] State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.
In this case, Defendant moved to dismiss the charge at the close of the State's evidence. Defendant's motion was denied. Defendant subsequently testified on his own behalf. However, Defendant failed to renew his motion to dismiss at the close of all the evidence. Therefore, as Defendant concedes, Defendant has failed to preserve this argument for appellate review. N.C. R. App. P. 10(b)(3); State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997).
We note that if a fatal defect appears on the face of the indictment, as opposed to a fatal variance between the indictment and evidence presented at trial, a defendant may raise that issue for the first time on appeal. State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998). In the present case, a fatal variance is at issue.
Defendant requests that this Court review his argument pursuant to Appellate Rule 2. "Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest or to prevent injustice which appears manifest to the Court and only in such instances." State v. Hart, 361 N.C. 309, 315-16, 644 S.E.2d 201, 205 (2007).
In the case sub judice, the evidence tended to show that Ashe, as an agent of Steve Moore Chevrolet LLC, ordered the transmission from a wholesale distributor. The transmission was received by Steve Moore Chevrolet LLC and available for Defendant's pickup on 23 August 2007. The transmission remained at Steve Moore Chevrolet LLC until 7 September 2007, when Defendant left with it in his truck without paying for it. The transmission was never paid for or recovered. Ashe testified, "All we really wanted was our transmission back. . . . [A]ll we wanted was either our money or our transmission." (Emphasis added). As the evidence tends to show that there was no fatal variance between the indictment and the evidence presented at trial, we conclude that the facts in this case do not present such "exceptional circumstances" that Rule 2 need be invoked to avoid "manifest injustice." N.C. R. App. P. 2. Accordingly, Defendant's appeal is dismissed.
DISMISSED.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).