Summary
finding fatal variance where the defendant relied on the indictment in shaping his alibi defense and "the State's `bait and switch' routine" forced the defendant "to defend his actions over a period of time much greater than the time specified in the indictment"
Summary of this case from State v. CustisOpinion
No. 595PA82
Filed 8 March 1983
Indictment and Warrant 17.2 — fatal variance as to time of conspiracy A variance between an indictment charging that defendant conspired "on or about the 12th day of December, 1980" to commit felonious larceny of hams and evidence tending to show that defendant and a co-conspirator had conversations concerning the hams and their value sometime in October or November and in December of 1980 and that the hams were stolen after Christmas was prejudicial to defendant in light of defendant's evidence that he was elsewhere on the date charged in the indictment, 12 December 1980, since defendant was forced to defend his actions over a period of time much greater than the time specified in the indictment.
ON defendant's petition for discretionary review of the decision of the Court of Appeals, 58 N.C. App. 788, 295 S.E.2d 487 (1982) (opinion by Judge Hill with Judge (now Justice) Harry C. Martin and Judge Becton concurring), finding no error in the judgment entered by Cornelius, J., on 13 August 1981 in Superior Court, CATAWBA County.
Sigmon, Clark and Mackie by Jeffrey T. Mackie and Barbara H. Kern, for defendant-appellant.
Rufus L. Edmisten, Attorney General, by Richard L. Griffin, for the State.
Justice MARTIN did not participate in the consideration or decision of this case.
Justice MITCHELL concurring.
Justice MEYER joins in this concurring opinion.
The Court of Appeals vacated defendant's conviction of receiving stolen goods but found no error in defendant's conviction of conspiring to commit felonious larceny. Defendant seeks to vacate the conspiracy conviction on the basis, inter alia, that there is a fatal variance between the date of the offense alleged in the indictment and the date presented at trial.
At trial the State's evidence tended to show that Johnny McCracken was employed as a truck driver for Mom and Pop's Smokehouse, Inc. from August 1980 until February 1981. The evidence also showed that Johnny McCracken was acquainted with the defendant and had known defendant for at least seven years. Sometime in October or November of 1980 the defendant mentioned to McCracken that he was "sitting on a gold mine." At some point in December 1980 defendant told McCracken that "he could get rid of some ham if I (McCracken) could get it."
Johnny McCracken admitted to stealing the ham from Mom and Pop's Smokehouse, Inc. sometime in late December, 1980 by having an unauthorized pallet of ham loaded onto his delivery truck. McCracken then took the ham to his house where defendant was supposed to pick it up and in fact did so.
The State's evidence also included the testimony of Tom McCall who stated that defendant delivered to McCall's store several cases of Mom and Pop's Smokehouse, Inc. hams in December 1980 or January 1981. McCall testified that defendant charged him substantially less than the list price of the hams and the delivery was made through the use of defendant's car. Although the State's evidence failed to show that there was ever any agreement as to how the ham was to be taken, when the ham was to be taken, or how McCracken asked to be paid for his part in the theft, McCracken did testify that sometime after 1 January 1981 he was paid fifty dollars and given a 1972 Chevrolet automobile by defendant.
Defendant's evidence tended to show that on the weekend of 12 December 1980 he was in Kingsport, Tennessee with his girlfriend, Beverly Cole. Ms. Cole testified that she was also with the defendant on the 19th and 20th of December 1980. Defendant's evidence further showed that the Chevrolet automobile which Johnny McCracken took possession of, was the property of defendant's sister-in-law, Darlene Christopher and had been sold by her to Johnny McCracken for the sum of $350.00.
Defendant testified that he had known Johnny McCracken for at least seven years and that he had on occasion seen McCracken during November and December of 1980. Defendant further testified that his discussions with McCracken were casual and no mention was ever made concerning McCracken "sitting on a gold mine" or concerning defendant's ability to get rid of any hams McCracken might obtain. Defendant further testified that he never took possession of any hams belonging to Mom and Pop's Smokehouse, Inc., and he never sold any hams to Tom McCall.
At the end of all the evidence the trial judge instructed the jury that they could find defendant guilty of the conspiracy charge if they found that on or about 14 December 1980 or the latter part of 1980 the defendant conspired to commit felonious larceny. The jury found defendant guilty of conspiring to commit felonious larceny. Judge Cornelius imposed a three-year sentence but ordered defendant to serve only 90 days, with the remaining thirty-three months suspended.
Defendant appealed to the Court of Appeals which upheld the conviction of conspiring to commit larceny. From the decision of the Court of Appeals defendant sought discretionary review by this Court pursuant to G.S. 7A-31 which was granted 8 December 1982.
Under the second question presented for review by the defendant he contends there exists a fatal variance between the date of the conspiracy alleged in the indictment, 12 December 1980, and the date of the conspiracy as shown by the State's evidence at trial. Such a variance, the defendant argues, in light of defendant's alibi defense, is prejudicial. We agree that the variance between the date alleged in the indictment and the date shown by the evidence at trial prejudiced defendant's ability to present a defense to the charge of conspiring to commit larceny.
The bill of indictment alleges that "on or about the 12th day of December, 1980, in Catawba County Loran Richard Christopher, Jr. unlawfully and wilfully did feloniously agree, plan, combine, conspire and confederate with Johnny McCracken . . ." to commit felonious larceny from Mom and Pop's Smokehouse, Inc. The indictment was undoubtedly based primarily on the statements of Johnny McCracken who admitted to stealing the ham from Mom and Pop's Smokehouse, Inc. In a statement to the police Johnny McCracken stated that on or about 14 December 1980 he stole the hams.
As a result of the indictment and Johnny McCracken's statement the defendant prepared his defense for trial in a manner designed to explain via an alibi the impossibility of his involvement in a conspiracy on 12 December 1980 and a theft two days later on 14 December 1980. However, at trial the State did not offer evidence that any criminal activity took place on or about 12 December 1980. Instead the State's chief witness, McCracken, testified that the hams were taken from Mom and Pop's Smokehouse, Inc. sometime after Christmas. As for his testimony concerning the conspiracy McCracken could be no more specific than to say he had conversations with the defendant sometime in October or November and in December. McCracken failed to pinpoint even one specific date on which the planned larceny was discussed or carried out. As a result, the defendant came to trial prepared to defend his innocence of a crime alleged to have happened around 12 December 1980 and was forced to defend his innocence of a crime which might have occurred over a three months period from October 1980 to January 1981.
In State v. Trippe, 222 N.C. 600, 24 S.E.2d 340 (1943), this Court held that when the date alleged in the indictment is not of the essence of the offense charged a "variance between allegation and proof as to time is not material where no statute of limitations is involved." 222 N.C. at 601, 24 S.E.2d at 341; State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961). In State v. Trippe, 222 N.C. 600, 24 S.E.2d 340, the defendant was charged with carnal knowledge of a female under sixteen years of age. For such a crime the date of the act was not essential so long as it was proven that the victim was under the age of sixteen and had no prior sexual behavior.
Much like the crime in State v. Trippe, 222 N.C. 600, 24 S.E.2d 340, the date of the crime of conspiracy to commit larceny is "not of the essence of the offense charged." State v. Trippe, 222 N.C. 600, 601, 24 S.E.2d 340, 341. The crime of conspiracy is complete when there is a meeting of the minds and no overt act is necessary. State v. Gallimore, 272 N.C. 528, 158 S.E.2d at 505 (1968). Although the crime of conspiracy is to be completed upon a meeting of the minds, it may be a continuing crime which extends over a period of years. State v. Brewer, 258 N.C. 533, 129 S.E.2d 262 (1962).
Even though the date in the indictment for crimes like conspiracy is not ordinarily material, to have a rule that allows the State to prove a different date at trial, "cannot be used to ensnare a defendant and thereby deprive him of an opportunity to adequately present his defense." State v. Whittemore, 255 N.C. 583, 592, 122 S.E.2d 396, 403 (1961).
In State v. Whittemore, supra, the State presented evidence during its case in chief that the crime was committed on the date alleged in the indictment. Defendant then presented an alibi defense for the date alleged in the indictment. After defendant rested his case the State presented rebuttal evidence tending to show the crime occurred on a date different from the date alleged in the indictment or shown by the State during its case in chief. In Whittemore the defendant was clearly disadvantaged because he was misled by the indictment and the State's evidence as to the dates of the alleged crime. The result being that the State was able to present alternative dates for the crime without allowing defendant an opportunity to defend his innocence as to those dates.
Although the defendant in the case sub judice has not been prejudiced in the same manner as the defendant in Whittemore, to-wit, not being allowed to explain the alternative dates, the defendant before us was nonetheless prejudiced. The wide ranging discrepancies between the indictment and the State's evidence at trial forced this defendant to explain conversations and actions with a long time acquaintance which in some instances were more than a month from the date alleged in the indictment. The result is a trial by ambush.
We are not unmindful that conspiracy offenses are ongoing crimes which may encompass many months. However, conspiracy crimes may be of very short duration covering less than one day. The indictment suggests the conspiracy occurred on 12 December 1980 and the defense was prepared in the light of this date. However, at trial the State ignored the indictment date and offered vague evidence that the conspiracy occurred over a three months period. The vague testimony of Johnny McCracken left the jury with the impression that this conspiracy began sometime in October or November of 1980 but no specific day, week or even month could be recalled.
As a result of the State's "bait and switch" routine the defendant was forced to defend his actions over a period of time much greater than the time specified in the indictment. Such a disparity in the dates alleged and the dates supported by the evidence at trial, considering the weak testimony offered by the State, leads to prejudicial error. We therefore grant defendant a new trial on his conviction of conspiring to commit larceny.
The defendant's other assignments of error will not likely recur at retrial and will not be discussed.
The decision of the Court of Appeals is reversed and this case remanded to that Court for remand to the Superior Court Catawba County for a new trial on the charge of conspiring to commit larceny.
Reversed and remanded.
Justice MARTIN did not participate in the consideration or decision of this case.