Opinion
No. COA11–1461.
2012-05-15
STATE of North Carolina v. Deandre Roosevelt RUCKER.
Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State. Mary McCullers Reece for defendant-appellant.
Appeal by defendant from judgments entered 16 June 2011 by Judge Paul C. Ridgeway in Durham County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State. Mary McCullers Reece for defendant-appellant.
STEELMAN, Judge.
Where defendant failed to argue a variance between the allegations in the indictment and the evidence presented at trial at the time he moved to dismiss the charges, he has waived appellate review and his appeal is dismissed.
I. Factual and Procedural History
Deandre Roosevelt Rucker (defendant) and his brothers stole Leaha Krier's pocketbook from her shopping cart at a Target store in Durham. Defendant and his father subsequently attempted to use several of Ms. Krier's credit cards to make purchases at other stores in Durham.
Defendant was indicted for misdemeanor larceny, obtaining property by false pretenses, identity theft, felony conspiracy, four counts of financial card theft, and contributing to the delinquency of a minor. On 15 June 2011, a jury found defendant not guilty of contributing to the delinquency of a minor, and guilty of all remaining charges. The trial court imposed consecutive sentences totaling 19–23 months imprisonment.
Defendant appeals.
II. Variance in Indictment
In his sole argument on appeal, defendant contends that the trial court erred in not dismissing the identity theft charge based upon a fatal variance between the allegations in the indictment and the evidence presented at trial. We disagree.
“ ‘The defendant in a criminal action may raise the question of variance between the indictment and the proof by a motion [to dismiss].’ “ State v. Skinner, 162 N.C.App. 434, 446, 590 S.E .2d 876, 885 (2004) (quoting State v. Overman, 257 N.C. 464, 468, 125 S.E.2d 920, 924 (1962)). However, we have held that a defendant must specifically raise this issue at trial as grounds for the motion to dismiss. State v. Curry, 203 N.C.App. 375, 384, 692 S.E.2d 129, 137,disc. review denied and appeal dismissed,364 N .C. 437, 702 S.E.2d 496 (2010). Where the defendant fails “to argue a variance between his indictment and the evidence presented at trial ... he has waived this issue for appeal.” Id. 203 N.C.App. at 385–86, 692 S.E.2d at 138 (citing N.C.R.App. P. 10(b)(1)).
At trial, defendant moved to dismiss all of the charges; however, he only specifically addressed one of the financial card theft charges and the contributing to the delinquency of a minor charge. He made no argument with respect to the remaining six charges. Defendant acknowledges that he did not specifically raise the alleged variance as grounds for dismissal of the identity theft charge, but nonetheless argues that his motion to dismiss preserves the issue for review. We are not persuaded, as defendant has failed to provide any support for his assertion, which is contrary to the authority of Curry.
We hold that because defendant failed to specifically argue that there was a fatal variance between his indictment and the evidence presented at trial regarding his identity theft charge, he has waived this issue for appellate review.
DISMISSED. Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).