in the Court of Appeals 15 May 2017.
by Defendant from judgment entered 29 June 2016 by Judge D.
Jack Hooks in Superior Court, Columbus County, No. 13 CRS
Attorney General Joshua H. Stein, by Assistant Attorney
General James Bernier, Jr., for the State.
Holladay for Defendant.
Statement of the Facts
Faison's ("Ms. Faison") residence at 276
Lakeview Drive in Whiteville, North Carolina ("the
residence"), was broken into on 4 December 2013. Ms.
Faison's adult daughter, Ashley Colson ("Ms.
Colson"), lived next door, and discovered the break-in.
Ms. Colson called Ms. Faison that afternoon and informed Ms.
Faison of the break-in. Ms. Faison came home to find her back
door open with the glass broken out of it, the home
"tossed," and several items missing, including a
flatscreen television ("the television"), a
PlayStation 3 videogame system with three video games
("the gaming system"), a laptop computer ("the
laptop"), a Canon camera ("the camera"), and
two gold earrings ("the earrings"). Ms. Faison
called 911 to report the break-in, and police responded.
After the police officers left the residence, Ms. Faison and
Ms. Colson reviewed video recorded from her home surveillance
system that was stored in a DVR box in Ms. Faison's
bedroom ("the video"). The video showed a man
breaking the glass in the back door to the residence,
entering, and removing items from the residence.
man's face was clearly visible in the video.
December 2013, Ms. Faison informed Detective Trina Worley of
the Columbus County Sheriffs Office ("Detective
Worley") about the video, and Detective Worley inquired
about obtaining a copy of the video. When Ms. Faison could
not figure out how to make a copy of the video, she carried
the DVR box to the sheriffs office for law enforcement to
view the video. Three detectives plugged in the DVR box and
attempted to view the video, but were unable to locate the
trial, Defendant objected to any reference to the video,
arguing that the proper foundation had not been laid for
admission of the video as evidence. During Ms. Faison's
voir dire, the trial court determined that Ms.
Faison was competent to testify about the video. Ms. Faison
testified to the following: The video showed a man break the
glass in the back door of Ms. Faison's residence, enter
her residence through that door, and then remove items from
Ms. Faison's residence. The man's face was clearly
visible on the video and there were multiple instances, as
the man looked around, when his face was directly visible.
The man was not wearing a "hoodie," mask, or hat to
obscure his face. Ms. Faison later saw a man walking down the
road near her residence whom she believed to be the man in
the video. She observed him enter a nearby house. Ms. Faison
reported this information to the police, who initiated
surveillance of the house and identified the man as Jawanz
accordance with the policy of the Columbus County Sheriffs
Office, Detective Worley had a photo lineup prepared, with
six pictures (Defendant and five "fillers") of men
of similar age, race, height, and build. Captain Soles - an
officer not involved in the investigation of the case - and
who did not know the facts of the case or the identity of
Defendant, administered the lineup to Ms. Faison on 31
December 2013. About thirty minutes later, Captain Soles
administered the lineup to Ms. Colson, who was not present at
the earlier lineup presentation. Both Ms. Faison and Ms.
Colson positively identified Defendant as the man who broke
into Ms. Faison's residence. Defendant was arrested on 31
December 2013 and was indicted for felony breaking or
entering and felonious larceny. Defendant's indictment
for felonious larceny reads as follows:
[D]efendant named above unlawfully, willfully and feloniously
did steal, take and carry away a flatscreen television,
PlayStation 3 video game system, three video games for
PlayStation 3, laptop computer, Canon camera, two gold
earrings, the personal property of April Faison, such
property having a value of $1,210.00, pursuant to a violation
of Section 14-54 of the General Statutes of North Carolina.
Section 14-54 states in relevant part: "Any person who
breaks or enters any building with intent to commit any . . .
larceny therein shall be punished as a Class H felon."
N.C. Gen. Stat. § 14-54(a) (2015). Although all of the
stolen items were taken from Ms. Faison's home, and the
television and the earrings belonged to Ms. Faison, the
laptop belonged to her daughter, Ms. Colson, and the camera
and the gaming system belonged to a friend of Ms. Faison. The
stolen items were never recovered.
trial, Defendant sought to call his grandfather, Jimmy Bacon
("Mr. Bacon"), as an alibi witness. However, the
State objected because Defendant had not provided adequate
notice of this alibi witness as required by N.C. Gen. Stat.
§ 15A-905(c)(1). The trial court allowed a voir
dire of Mr. Bacon in which Mr. Bacon testified that
Defendant was with him at his home the entire day of 4
December 2013. However, when questioned, Mr. Bacon could not
recall any details as to specific dates of Defendant's
stay or what Defendant did during his stay. The trial court
ultimately granted the State's motion to exclude Mr.
moved to dismiss at the close of the State's evidence and
again at the close of all evidence, but Defendant's
motions were denied. During the charge conference, Defendant
pointed out that the State had not presented any evidence to
prove the value of the items stolen and, therefore, the jury
should not be instructed on felony larceny based upon the
stolen items being in excess of $1,000.00. The State
maintained that specific evidence of the value of the stolen
items was unnecessary because the jury, based upon the nature
of the items themselves, could determine that the items had a
value of more than $1,000.00. The trial court agreed with the
State and instructed the jury on felonious larceny based upon
value in excess of $1,000.00, with misdemeanor larceny as a
lesser-included charge. However, the trial court declined to
instruct the jury on felony larceny resulting from a breaking
or entering. The jury found Defendant guilty of felony
breaking or entering and felonious larceny with value in
excess of $1,000.00. Defendant appeals.
contends the trial court erred: (1) by denying
Defendant's motion to dismiss the larceny charge due to a
fatal variance between the indictment and the evidence
presented at trial; (2) by failing to dismiss the larceny
charge for insufficiency of the evidence as to the value of
the stolen items; and (3) by abusing its discretion in
excluding Mr. Bacon's alibi testimony.
Fatal Variance in the Indictment
first argues the trial court erred in denying his motion to
dismiss the felonious larceny charge. More specifically,
Defendant contends there was a fatal variance between the
owner of the stolen property as alleged in the indictment and
the proof of ownership of the stolen items presented at
trial. We agree in part.
asks this Court to vacate his felonious larceny conviction.
Defendant argues that, while the indictment alleged Ms.
Faison to be the owner of all the property stolen from her
residence, the evidence at trial demonstrated she was not the
owner of the laptop or the gaming system. We agree with
Defendant, but note that Defendant failed to address the
items properly attributed to Ms. Faison in the indictment -
the television and the earrings - and what that means for
Defendant's motion to dismiss. Although Defendant
concedes that some of the items listed in the indictment were
correctly listed as the property of Ms. Faison, he contends
that fatal variances with respect to other items included in
the indictment require quashing the indictment and further
require dismissal of all larceny charges.
support of his argument, Defendant cites State v.
Seelig for the proposition that "'the evidence
in a criminal case must correspond to the material
allegations of the indictment, and where the evidence tends
to show the commission of an offense not charged in the
indictment, there is a fatal variance between the allegations
and the proof requiring dismissal.'" State v.
Seelig, 226 N.C.App. 147, 162, 738 S.E.2d 427, 438
(2013) (citation omitted). However, Defendant appears to have
overlooked the following paragraph in Seelig:
"[A]n indictment 'must allege lucidly and accurately
all the essential elements of the offense endeavored to be
charged.'" In order to be fatal, a variance must
relate to "an essential element of the offense."
Alternately, "[w]hen an averment in an indictment is not
necessary in charging the offense, it will be 'deemed to
Id. at 162-63, 738 S.E.2d at 438 (citations
provides no argument or citations to any legal authority to
support the proposition that a larceny indictment that
properly alleges the owner of certain stolen property, but
improperly alleges the owner of additional property, must be
dismissed in its entirety. Because Defendant fails to make
this argument on appeal, it is abandoned. See State v.
Evans,___ N.C. App.___, ___, 795
S.E.2d 444, 455 (2017); N.C.R. App. P. 28 (2017)
("Issues not presented in a party's brief, or in
support of which no reason or argument is stated, will be
taken as abandoned..... The body of the argument . . . shall
contain citations of the authorities upon which the appellant
relies."). Defendant has abandoned this argument, and we
arguendo, that Defendant has not abandoned this
argument, we find no error.
North Carolina our courts have been clear that:
The general law has been that the indictment in a larceny
case must allege a person who has a property interest in the
property stolen and that the State must prove that that
person has ownership, meaning title to the property or some
special property interest. If the person alleged in the
indictment to have a property interest in the stolen property
is not the owner or special owner of it, there is a fatal
variance entitling defendant to a nonsuit. Furthermore,
although the law acknowledges that a parent has a special
custodial interest in the property of his minor child kept in
the parent's residence, that special interest does not
extend to a caretaker of the property even where the
caretaker had actual possession.
State v. Salters, 137 N.C.App. 553');">137 N.C.App. 553, 555-56, 528
S.E.2d 386, 389 (2000) (citations omitted).
indictment in a larceny case is required to allege the
ownership of the stolen property in order to: "(1)
inform defendant of the elements of the alleged crime,
(2)enable him to determine whether the allegations constitute
an indictable offense, (3) enable him to prepare for trial,
and (4) enable him to plead the verdict in bar of subsequent
prosecution for the same offense." State v.