Opinion
No. COA12–1451.
2013-06-18
STATE of North Carolina v. Jamie Ray SPAKE.
Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. Don Willey for defendant-appellant.
Appeal by defendant from judgment entered 13 June 2012 by Judge Robert C. Ervin in Lincoln County Superior Court. Heard in the Court of Appeals 3 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Tenisha S. Jacobs, for the State. Don Willey for defendant-appellant.
ELMORE, Judge.
Jamie Ray Spake (defendant) appeals from a judgment entered after a jury found him guilty of larceny from a merchant. Defendant contends there was a fatal variance between the indictment and the evidence presented at trial. We find no error.
On 21 May 2011, an asset protection officer at a Wal–Mart store in Denver, North Carolina, noticed defendant using wire cutters to remove the anti-theft devices from items in the store's electronics department. Defendant took the electronics merchandise to the furniture department and used a knife to remove the items from their packaging. When defendant attempted to leave the store through an exit in the garden department, asset protection officers detained him. After defendant was detained, he showed a sheriff's deputy where he had left the items in the garden department.
Defendant was indicted for larceny from a merchant by removing, destroying, or deactivating a component of an anti-shoplifting or inventory control device to prevent the activation of the device. The trial court denied defendant's motion to dismiss the charge. The jury found defendant guilty, and the trial court sentenced him to 16 to 20 months imprisonment. Defendant now appeals.
Defendant's sole argument on appeal is that the trial court erred by denying his motion to dismiss because there was a fatal variance between the indictment and the evidence presented at trial. Specifically, defendant contends that the State failed to present sufficient evidence that the Denver Wal–Mart store was a corporation or other entity capable of owning property. The State contends that defendant has waived appellate review of this issue by failing to raise the issue before the trial court. We agree with the State.
“It is well-established that ‘where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.’ “ State v. Tellez, 200 N.C.App. 517, 521, 684 S.E.2d 733, 736 (2009) (citation omitted). Thus, a “ ‘defendant may raise the question of variance between the indictment and the proof by a motion’ to dismiss, but defendant must also state this at trial as the grounds for the motion to dismiss.” State v. Curry, 203 N.C.App. 375, 384, 692 S.E.2d 129, 137 (citation omitted), disc. review denied, appeal dismissed,364 N.C. 437, 702 S.E.2d 496 (2010). A defendant “waive[s] his right to raise this issue by failing to raise the issue at trial.” 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).
When he moved to dismiss the charge after the State rested, defendant stated: “We would ask the Court to consider the failure of the State to prove the element of intent in regards to the crime charged. Also, the rest of the case, not presented in evidence.” Defendant later renewed the motion to dismiss without any further argument.
Thus, defendant never raised before the trial court the issue of whether the evidence at trial conformed to the allegations in the indictment by identifying an entity capable of owning property. Instead, defendant only specifically challenged the sufficiency of the evidence of intent, and he has waived review of the fatal variance issue he seeks to raise for the first time on appeal. See Curry, 203 N.C.App. at 384, 692 S.E.2d at 137; N.C.R.App. 10(a)(1). Accordingly, defendant's argument is overruled.
No error. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).