Opinion
No. COA11–945.
2012-04-3
STATE of North Carolina v. Patrick Lee MOORE, Defendant.
Roy Cooper, Attorney General, by Kathleen M. Waylett, Special Deputy Attorney General, for the State. Staples Hughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant.
Appeal by defendant from judgments entered 11 May 2011 by Judge William R. Pittman in Harnett County Superior Court. Heard in the Court of Appeals 20 February 2012. Roy Cooper, Attorney General, by Kathleen M. Waylett, Special Deputy Attorney General, for the State. Staples Hughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from judgments entered upon jury verdicts finding him guilty of discharging a firearm into an occupied dwelling, possession of a firearm by a felon, and injury to personal property. On appeal, he contends the trial court erred by denying his motion to dismiss the charge of discharging a firearm into occupied property as a result of a fatal variance between the indictment and the evidence at trial. We find no error.
At trial, the relevant evidence tended to show the following: on 7 April 2010, as Christine Warner was standing by her car in the parking lot of the Dry Brooks Apartment complex in Lillington, North Carolina, she noticed cars entering the lot, heard “bang, bang, bang sounds,” and saw red and white sparks coming from the passenger side window of a vehicle. She ran to a breezeway in the building where her apartment was located and, when her daughter came out of her apartment, pushed her back in and entered the apartment behind her.
The Dry Brooks Apartment complex consists of six buildings. Ms. Warner's building, Building 144, contains eight, three-bedroom apartments, and Ms. Warner's apartment, Apartment 102, is on the bottom level of Building 144, behind Apartment 101. Following the shooting, two holes were found on the exterior wall of Building 144, beside Apartment 101, and police found a bullet fragment after peeling back the siding.
.........................
On appeal, defendant contends the trial court erred by denying his motion to dismiss the charge of discharging a firearm into occupied property because there was a fatal variance between the indictment and the evidence at trial. The State contends defendant failed to preserve this issue for appellate review by failing to move to dismiss on this ground in the trial court.
“[A] fatal variance between the indictment and proof is properly raised by a motion for judgment as of nonsuit or a motion to dismiss, since there is not sufficient evidence to support the charge laid in the indictment.” State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894,cert. denied,444 U.S. 874, 62 L.Ed.2d 102 (1979). “A motion to dismiss [for a variance] is in order when the prosecution fails to offer sufficient evidence the defendant committed the offense charged.” State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 646 (1971). “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.” Id. At trial, defendant moved to dismiss, arguing in part that the State failed to establish the element that he discharged a firearm into an occupied dwelling because the evidence showed Apartment 101 was unoccupied. On appeal, defendant argues essentially the same thing, that there was a fatal variance between the offense charged and the evidence at trial because the indictment alleged that he discharged a firearm into occupied Apartment 102 and the evidence at trial “showed that the apartment actually shot into was Apartment 101, an apartment in which no one lived and which was unoccupied at the time.” Because defendant moved to dismiss the charge for insufficient evidence and the trial court concluded that evidence showing that defendant discharged a firearm into Apartment 101, which was unoccupied, was sufficient to send the charge of discharging a firearm into occupied property to the jury, defendant has properly preserved this issue for appellate review. SeeN.C.R.App. P. 10(a)(1) (“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely ... 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. It is also necessary for the complaining party to obtain a ruling upon the party's. motion.”); N.C.R.App. P. 10(a)(3) (“In a criminal case, a defendant may not make insufficiency of the evidence to prove the crime charged the basis of an issue presented on appeal unless a motion to dismiss the action, or for judgment as in case of nonsuit, is made at trial.”); see also State v. Gayton–Barbosa, 197 N.C.App. 129, 133, 676 S.E.2d 586, 589 (2009) (holding that the defendant failed to preserve for appellate review the issue of a fatal variance between the indictment and the evidence at trial “by failing to challenge the sufficiency of the evidence to support a larceny conviction at the end of all the evidence or to argue that the State's proof at trial varied from the allegations of the felonious larceny indictment ....“ (emphasis added)).
We therefore turn to the issue of whether there is a variance between the indictment and the evidence presented at trial. For the following reasons, we hold there is not.
The requirement that the evidence conform to the charge in an indictment is concerned with ensuring that the defendant is able to prepare his defense against the crime with which he is charged and to protect the defendant from another prosecution for the same incident. State v. Skinner, 162 N.C.App. 434, 445, 590 S.E.2d 876, 885 (2004). “ ‘A variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial.’ “ Id. (quoting State v. Norman, 149 N.C.App. 588, 594, 562 S.E.2d 453, 457 (2002)). “ ‘In order for a variance to warrant reversal, the variance must be material.’ “ Id. (quoting Norman, 149 N.C.App. at 594, 562 S.E.2d at 457). “A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged.” Id. at 445–46, 590 S.E.2d at 885 (quoting Norman, 149 N.C.App. at 594, 562 S.E.2d at 457).
“An indictment need only allege the ultimate facts constituting each element of the criminal offense.” Id. at 445, 590 S.E.2d at 884–85. “ ‘[A]llegations beyond the essential elements of the crime sought to be charged are irrelevant and may be treated as surplusage.’ “ Id. at 445, 590 S.E.2d at 885 (quoting State v. Taylor, 280 N.C. 273, 276, 185 S.E.2d 677, 680 (1972)).
The indictment in this case charged that defendant “discharge[d] a handgun, a firearm into the dwelling house of Christine Warner, a building and structure located at 144 Dry Brook Circle, Apartment # 102, Lillington, North Carolina while it was actually occupied by Christine Warner and Mckenzie Warner.” The allegations that defendant discharged a firearm into the “building and structure located at 144 Dry Brook Circle” while it was “occupied by Christine Warner and Mckenzie Warner” support the essential elements that defendant discharged a firearm into a dwelling while it was occupied. The allegation as to the specific apartment number was beyond the essential elements of the crime sought to be charged and was irrelevant surplusage. Thus, the evidence tending to show that defendant discharged a firearm into the exterior wall of Building 144 beside Apartment 101 did not materially vary from the allegations supporting the essential elements in the indictment. Defendant's issue is overruled.
No error. Judges HUNTER and STEPHENS concur.
Report per Rule 30(e).