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State v. Bacon

Court of Appeals of North Carolina

July 18, 2017


          Heard in the Court of Appeals 15 May 2017.

         Appeal by Defendant from judgment entered 29 June 2016 by Judge D. Jack Hooks in Superior Court, Columbus County, No. 13 CRS 53957-58.

          Attorney General Joshua H. Stein, by Assistant Attorney General James Bernier, Jr., for the State.

          Sarah Holladay for Defendant.

          McGEE, Chief Judge.

         I. Statement of the Facts

         April 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. [1] The man's face was clearly visible in the video.

         On 5 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 video.

         At 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 Bacon ("Defendant").

         In 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.

         At 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. Bacon's testimony.

         Defendant 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.

         II. Analysis

         Defendant 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.

         A. Fatal Variance in the Indictment

         Defendant 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.

         Defendant 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.

         In 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 be surplusage.'"

Id. at 162-63, 738 S.E.2d at 438 (citations omitted).

         Defendant 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 dismiss it.

         Assuming, arguendo, that Defendant has not abandoned this argument, we find no error.

         In 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).

         The 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. ...

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