Opinion
No. COA11–1156.
2012-04-17
STATE of North Carolina v. Sedrick Modrickus ROYAL, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Newton G. Pritchett, Jr., for the State. Faith S. Bushnaq for defendant-appellant.
Appeal by defendant from judgments entered 2 June 2011 by Judge Robert H. Hobgood in Durham County Superior Court. Heard in the Court of Appeals 7 February 2012. Attorney General Roy Cooper, by Assistant Attorney General Newton G. Pritchett, Jr., for the State. Faith S. Bushnaq for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant Sedrick Modrickus Royal appeals from judgments entered after a jury found him guilty of breaking and entering, felonious larceny of $200, larceny of a firearm, and financial transaction card theft. Defendant pled guilty to attaining habitual felon status. Defendant argues the trial court erred by: (1) denying his motion to dismiss the charges because the evidence presented was insufficient to establish that defendant was the perpetrator of the charged offenses; (2) failing to dismiss the charge of financial transaction card theft when no evidence was presented that defendant intended to use the cards; and (3) denying his motion to dismiss the charge of felonious larceny when no evidence was presented that the $200 stolen belonged to Thorpe's Incorporated (“Thorpe's Inc.”), as alleged in the indictment. After careful review, we hold that the trial court erred by failing to dismiss the charge of felonious larceny of $200 due to the fatal variance between the indictment and the evidence presented at trial. We hold that the trial court did not err by denying defendant's motion to dismiss the other charges.
Background
The State's evidence at trial tended to establish the following facts: Wayne Thorpe, defendant's uncle, owned Thorpe's Inc. Thorpe had known defendant since he was a child and had employed defendant for five or six months prior to the night defendant allegedly committed the crimes charged.
Thorpe provided fuel cards for employees to purchase gasoline for business purposes. The fuel cards were restricted such that they could only be used to purchase gasoline. The fuel cards hung outside Thorpe's office. In order to use a fuel card, the employee had to enter an access code at the time of purchase. Each employee had a different access code, which was the last four digits of the employee's Social Security number. The employees' Social Security numbers were kept in an unlocked file cabinet outside of Thorpe's office.
In early 2010, the business began losing fuels cards and Thorpe suspected someone was taking them. On Saturday morning, 10 April 2010, Thorpe discovered that a fuel card he was about to report missing was back in the case outside his office. A .38 revolver and $200 in cash were missing from his private office. Thorpe checked the surveillance video and saw defendant enter the business around 2:30 a.m. on 10 April. Thorpe testified at trial that the person he saw in the surveillance video was defendant, “no if's, and's, or but's about it.” The surveillance video showed defendant entering an access code to deactivate the alarm, sticking something into his pants, entering the area where the fuel cards were kept, entering the area where the access codes were kept, and entering Thorpe's office. There were no signs of forced entry into either the business or Thorpe's office.
The fuel cards were used on Saturday morning, 10 April, to purchase gas. Thorpe cancelled all of the cards around noon on Saturday. Whoever purchased the gas that morning used the access codes of numerous employees to authorize the transactions. None of the employees whose access codes were entered to make the purchases were working that night and all denied having made the purchases. Thorpe also checked his account with the fuel company and discovered that his gasoline bill had risen from the usual $3,000 per month to $6,500 per month over a three-week period.
Thorpe showed the surveillance video to defendant, who claimed it was not him in the footage. The investigating officer, Detective Ron Christie, obtained a photograph of defendant from the North Carolina Department of Motor Vehicles and determined that defendant's appearance, profile, and facial structure matched that of the subject in the surveillance video. Defendant's girlfriend, Zina Robinson, testified that on Friday, 9 April 2010, defendant went to a cookout for her birthday and then they stayed in a hotel until Sunday.
On 13 April 2010, a warrant was obtained and the police searched defendant's residence for the gun, fuel cards, and other evidence linked to the crime. No such evidence was found.
On 7 September 2010, defendant was indicted for breaking and entering, felonious larceny of $200, larceny of a firearm, and three counts of financial transaction card theft. Defendant was also indicted for being a habitual felon. The matter came on for trial on 31 May 2011. The trial court denied defendant's motion to dismiss all charges filed at the close of evidence; however, the trial court determined that one, rather than three, counts of financial transaction card theft would be presented to the jury.
On 2 June 2011, the jury found defendant guilty of all charges. Defendant pled guilty to having attained the status of a habitual felon. The trial court sentenced defendant to presumptive, concurrent terms of 130 to 165 months imprisonment for each of the convictions. Defendant gave notice of appeal in open court.
Discussion
I.
First, defendant argues that the State presented insufficient evidence to prove that he was the perpetrator of the crimes charged, and thus the trial court erred in denying his motion to dismiss all of the charges at the close of evidence. We disagree.
“When the defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine ‘whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.’ “ State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)), cert. denied,543 U.S. 1156, 161 L.Ed.2d 122 (2005). “If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). “Substantial evidence” is relevant evidence that a reasonable person might accept as adequate to support a particular conclusion. Garcia, 358 N.C. at 412, 597 S.E.2d at 746. Conversely, if the evidence is sufficient only to raise a suspicion or conjecture as to either commission of the offense or the identity of the defendant as the perpetrator, the motion should be granted. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. Id. at 99, 261 S.E.2d at 117. “The reviewing court considers all evidence in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence.” Garcia, 358 N.C. at 412–13, 597 S.E.2d at 746.
Defendant contends the evidence submitted raised no more than mere suspicion or conjecture of his guilt. Defendant points out that Thorpe's testimony established that the fuel cards were kept in an area accessible to all employees; the access codes for the fuel cards were kept in an unlocked file cabinet; and most employees knew where the key to Thorpe's office was located and that Thorpe kept a gun in his office for protection. Defendant claims that any of the other employees could have taken the stolen items. Additionally, defendant argues that the video did not show defendant committing larceny or looking into the file cabinet where the access codes were kept. Defendant points out that the prosecutor asked Thorpe if defendant was the person who took the items, he replied: “Well, I can't say that. I didn't actually see him.”
In support of his argument that the evidence was insufficient, defendant relies on State v. Myers, 181 N.C. App 310, 639 S.E.2d 1 (2007). In Myers, this Court held that the defendant's opportunity to commit the offense charged and presence at the crime scene created a strong suspicion of guilt but was insufficient to establish that the defendant was the perpetrator of the offense. Id. at 315, 639 S.E.2d at 4–5.
We disagree with defendant's contentions. Unlike Myers, there is video surveillance placing defendant at the crime scene on the night it occurred acting in a manner that suggests he was perpetrating the crimes at that moment. No other individual was seen on the video and the fuel cards that were taken were used the next morning. This Court's holding in State v. Griffin, –––N.C.App. ––––, ––––, 713 S.E.2d 185 (2011), is on point. In that case, the defendant went to Allied Roofing and asked the office manager for a job application. Thirty to 45 minutes after the defendant left, the office manager noticed that her purse was missing. Id. at ––––, 713 S.E.2d at 186. A surveillance video showed defendant taking her purse from behind her desk. Id. That same day, a credit card belonging to the office manager was used at a Wal–Mart 3 .4 miles away from Allied Roofing. Id. The officer manager testified that the credit card used at Wal–Mart belonged to her and that she did not use the credit card on that day. Id. This Court held that the evidence constituted sufficient circumstantial evidence to permit a reasonable person to conclude that the defendant was the perpetrator. Id. at ––––, 713 S.E.2d at 187. Though the defendant in Griffin, like defendant in the present case, speculated that another person could have taken the stolen item, this Court noted that “we need not rule out every hypothesis of innocence to conclude that the circumstantial evidence is sufficient for a reasonable person to infer that defendant was the person who used the stolen credit card shortly after he stole it.” Id.
Here, while the video surveillance did not show defendant taking the stolen items, the State presented substantial evidence that defendant was the perpetrator of the crimes charged. Thorpe positively identified the man in the surveillance video as defendant. Thorpe had known defendant since he was a child and testified that no one else working for the business resembled defendant. Detective Christie also identified defendant as the perpetrator using a photograph of defendant provided by the DMV. Additionally, the stolen gas cards were used on the morning of Saturday, 10 April. Considering the evidence in the light most favorable to the State, the evidence presented was sufficient to show that defendant was the perpetrator of the crimes charged, and therefore, the motion to dismiss was properly denied.
II.
Second, defendant argues that the State provided insufficient evidence of defendant's intent to use the fuel cards following their taking, which is an essential element of financial transaction card theft. Defendant argues that the trial court erred in failing to dismiss that charge. In support of his contention, defendant cites case examples where sufficient evidence of intent was presented in charges of financial transaction card theft. In State v. Fraley, 182 N.C.App. 683, 689, 643 S.E.2d 39, 43 (2007), this Court found intent to use stolen credit cards where a video showed the defendant using the cards and the defendant testified that he planned to use the cards. In State v. Mann, 355 N.C. 294, 302, 560 S.E.2d 776, 781–82,cert. denied,537 U.S. 1005, 154 L.Ed.2d 403, (2002), the Court found that all elements of financial transaction card theft were met when surveillance footage showed the defendant at the Texaco station at the time the unauthorized purchases were made.
Defendant argues that unlike in Farley and Mann, the State did not provide evidence that connected defendant to use of the cards after they were taken. Defendant asserts that even if he was the person in the video and was in fact putting fuel cards into his pants, there is still no evidence of intent to use the stolen cards.
Defendant's arguments are unpersuasive in that they fail to take into account the use of circumstantial evidence to prove the element of intent. In State v. Kemmerlin, 356 N.C. 446, 474, 573 S.E.2d 870, 889–90 (2002), our Supreme Court noted that the defendant's intent need not be proven by direct evidence, but may be inferred from the circumstances. As stated supra, the State provided substantial evidence that defendant took the cards and then used them. As the Court in Kemmerlin recognized, circumstantial evidence can be used to infer that defendant had the intent to use the fuel cards when he took them. The defendant's intent at the time of the taking was, therefore, a question for the jury in this case. State v. Simmons, 167 N.C.App. 512, 521, 606 S.E.2d 133, 139 (2004), disc. review denied,359 N.C. 325, 611 S.E.2d 844 (2005). Consequently, denial of defendant's motion to dismiss the charge of financial transaction card theft was proper.
III.
Finally, defendant argues that the trial court erred in denying his motion to dismiss the charge of felonious larceny of $200 when the indictment alleged that the money was the property of Thorpe's, Inc. but no evidence of that fact was presented at trial. We agree.
The allegation of ownership of the property described in a bill of indictment for larceny is essential. State v. Crawford, 29 N .C.App. 117, 119, 223 S.E.2d 534, 535 (1976). A motion to dismiss properly raises the issue of variance between the indictment and proof offered at trial. State v. Baldwin, 117 N.C.App. 713, 717, 453 S.E.2d 193, 195,disc. review denied, 341 N.C. 653, 462 S.E.2d 518 (1995). If the evidence shows that the article stolen was not the property of the person alleged in the indictment to be the owner of it, the variance is fatal and a motion to dismiss should be granted. State v. Downing, 313 N.C. 164, 166, 326 S.E .2d 256, 258 (1985). Ownership of the premises from which the property was stolen does not constitute proof of ownership of the stolen property. Id.
Defendant contends that since the State failed to present substantial evidence that the $200 belonged to the business, rather than Thorpe individually, there was a fatal variance between the indictment and the proof offered at trial. In support of this argument, defendant cites State v. Johnson, 77 N.C. App 583, 335 S.E.2d 770 (1985). In Johnson, this Court determined that there was a fatal variance between the indictment and the proof presented at trial where the defendant was charged in the indictment with stealing two letter openers that were property of the church while the evidence established the letter openers were the personal property of the priest. Id. at 585, 335 S.E.2d at 772. The church neither owned nor had any special property interest in the letter openers. Id.
Here, the State failed to present substantial evidence as to ownership of the $200 at trial. While the evidence did not conclusively establish that the money belonged to Thorpe personally, the evidence certainly did not tend to establish that the money belonged to Thorpe's Inc. Thorpe testified that on the night of the theft, “someone went into my office, took my gun, the money, and other valuables.” Thorpe testified that the gun was kept in his desk drawer, which was located in his office, but made no statement as to where in his office the cash was kept. As the video surveillance recording played for the jury, Thorpe identified the location of his office and stated that both the gun and the cash were kept inside the office. Deputy Sheriff Johnny Clark also testified that Thorpe called to report “that his business had been broken into and that several items were removed from his office area, his work area, and his drawers in his desk, and gas cards that were used to supply fuel for his business had been missing.” Clark testified that Thorpe reported $200 worth of cash and a .38 caliber revolver were taken from his office area. The only testimony presented at trial directly related to the issue of ownership was with respect to the revolver; Thorpe testified that the revolver was his gun, registered to him.
Defendant was not charged with taking the “other valuables” mentioned.
In sum, it is clear that the money came from Thorpe's personal office, but there was no evidence regarding ownership. While the money may have belonged to the business, it is just as likely that the money belonged to Thorpe personally. We hold that there was a fatal variance between ownership of the $200 as alleged in the indictment and the proof offered at trial. Consequently, the trial court erred in failing to dismiss the felonious larceny charge.
Conclusion
Based on the foregoing, we hold that the State provided substantial evidence that defendant was the perpetrator of the crimes charged and that defendant had the intent to use the fuel cards at the time of their taking. However, the State presented no evidence that Thorpe's, Inc. was the owner of the $200. Because a variance existed between ownership as stated in the indictment and the proof offered at trial, the motion to dismiss should have been granted as to the charge of felonious larceny of $200. Consequently, we vacate the judgment and remand this case for further proceedings not inconsistent with this opinion.
No error in part; vacated and remanded in part. Judges THIGPEN and McCULLOUGH concur.
Report per Rule 30(e).