Opinion
No. COA09-817.
January 5, 2010.
Pitt County No. 07 CRS 61681.
Appeal by defendant from judgment entered 23 January 2009 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 18 November 2009.
Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State. Sue Genrich Berry for defendant-appellant.
Defendant Perry Lee Moore was indicted by the Pitt County Grand Jury for first-degree burglary, felonious larceny, and felonious possession of stolen goods alleged to have occurred on 6 November 2007. At trial, defendant moved to dismiss the burglary charge at the close of all evidence, citing a fatal variance between the indictment on burglary and the evidence at trial. Over defendant's objection, the State was permitted to amend the indictment, and the trial court then denied defendant's motion to dismiss. On 23 January 2009, the jury returned a verdict of guilty on each of the three counts. The trial court sentenced defendant to sixty-one to eighty-three months in prison. Defendant appeals. As discussed below, we find no error.
Facts
The evidence at trial tended to show that Scott Anderson and Zach Ellis, students at East Carolina University, were returning to the Lambda Chi Alpha fraternity house in the early morning hours of 6 November 2007. The students saw a stranger in front of the fraternity house with a bicycle they recognized as belonging to a friend. They confronted the man and told him to drop the bike, which he did. After Anderson parked behind the house, he returned to the front of the house and discovered the man still standing near the bike. He told the man to leave, and after the man complied, Anderson called the police and gave a description. Shortly thereafter at a "show up," Anderson and Ellis identified defendant as the man they had seen with the bike. The bike's owner, Alex Cowan, testified that he kept his bike inside the fraternity house where he lived. Defendant did not present any evidence.
On appeal, defendant argues the trial court: (I) abused its discretion in allowing the State to amend the indictment as to the burglary charge, and erred in (II) denying his motion to dismiss the burglary charge, and (III) failing to instruct the jury on intent after advising the parties it would do so. We find no error.
Analysis I
Defendant contends that the trial court erred in allowing the State to amend the indictment because the amendment substantially altered the charge set forth. We disagree.
"[T]he purpose of an indictment . . . is to inform a party so that he may learn with reasonable certainty the nature of the crime of which he is accused". State v. Coker, 312 N.C. 432, 437, 323 S.E.2d 343, 347 (1984).
N.C.G.S. § 15A-923(e) provides that "a bill of indictment may not be amended." This statute, however, has been construed to mean only that an indictment may not be amended in a way which "would substantially alter the charge set forth in the indictment." State v. Carrington, 35 N.C. App. 53, 240 S.E.2d 475, disc. rev. denied, 294 N.C. 737, 244 S.E.2d 155 (1978). Thus, for example, where time is not an essential element of the crime, an amendment relating to the date of the offense is permissible since the amendment would not "substantially alter the charge set forth in the indictment." State v. Price, 310 N.C. 596, 598-99, 313 S.E.2d 556, 559 (1984).
State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994). The essential elements of burglary are: (1) the breaking, (2) and entering, (3) at night, (4) into a dwelling of another, (5) that is occupied, and (6) with the intent to commit a felony therein. State v. Singletary, 344 N.C. 95, 101, 472 S.E.2d 895, 899 (1996). The location of the offense is not an element of first-degree burglary. State v. Ruffin, 90 N.C. App. 705, 708, 370 S.E.2d 275, 277 (1988).
"[A]n indictment for burglary is fatally defective if it fails to identify the premises broken and entered with sufficient certainty to enable the defendant to prepare his defense and to offer him protection from another prosecution for the same incident." State v. Coffey, 289 N.C. 431, 438, 222 S.E.2d 217, 221 (1976). In Coffey, the indictment charged that the defendant "`in the county aforesaid [Rutherford], the dwelling house of one Doris Matheny there situate, and then and there actually occupied by one Doris Matheny . . . did break and enter' with the requisite intent." Id. The defendant argued that the indictment did "not describe the location of the dwelling at which the burglary was committed with sufficient clarity". Id. at 437, 222 S.E.2d at 221. No street address was given in the indictment. The Supreme Court found no error and held that the description given was sufficient, reasoning
there is nothing to indicate Doris Matheny owned and actually occupied more than one dwelling house in Rutherford County. Prior to the commencement of his trial, the defendant knew that he was charged with burglarizing a dwelling on the same road as his own home and not more than a half a mile therefrom. Thus, he had ample information as to the location of the house to enable him to prepare his defense to the charge, which defense was that, at the time of the burglary, he was asleep in his own home.
Id. at 438, 222 S.E.2d at 221. In State v. Grady, 136 N.C. App. 394, 397, 524 S.E.2d 75, 77, disc. review denied, 352 N.C. 152, 544 S.E.2d 232 (2000), we held that, because specific designation of the address was unnecessary to set out the offense of maintaining a dwelling for the use of a controlled substance, an amendment of the address was not a substantial alteration. Thus, we found no error in the trial court allowing amendment of the address listed in the indictment from "919 Dollard Town Road" to "929 Dollard Town Road." Id.
Defendant cites State v. Benton, 10 N.C. App. 280, 178 S.E.2d 81 (1970), in support of his contention that correcting the address in a burglary indictment is a substantial alteration. We find that case distinguishable. In Benton, "an indictment [charged the defendant] with breaking and entering `the building located 2024 Wrightsville Ave., Wilmington, N. C., known as the Eakins Grocery Store, William Eakins, owner/possessor' [while] [a]ll of the evidence . . . related to a store, the nature of which was not disclosed, located at 2040 Wrightsville Avenue in the City of Wilmington, owned and operated by William Adkins." Id. at 281, 178 S.E.2d at 82. Defendant appealed contending the trial court erred in denying his motion for a directed verdict. Id. We concluded there was a fatal variance between the indictment and the proof and reversed the defendant's conviction on that basis. Id.
Here, the indictment contained only two errors identifying the location of the alleged burglary: the street number of the fraternity house was listed as "3500" Elizabeth Street instead of "500" Elizabeth Street and the location was listed as the dwelling house of both Alex Cowan and Scott Anderson. Anderson did not live at the fraternity house, but Cowan, who owned the bicycle defendant attempted to steal, did live there. This is unlike Benton, where the wrong street number was given and no correct occupant or owner was listed. Here, similar to Coffey, there was no evidence that Cowan occupied any other house in Pitt County. Defendant was standing in front of the fraternity house at 500 Elizabeth Street when he was confronted by Anderson and forced to drop the bicycle. The exact street number was not required and defendant was not impaired in preparing his defense. Ruffin, 90 N.C. App. at 708, 370 S.E.2d at 277; Coffey, 289 N.C. at 438, 222 S.E.2d at 221. Because the amendments did not substantially alter the charge set forth, the trial court did not err in allowing the State to amend the indictment. This assignment of error is overruled.
II
Defendant also argues the trial court erred in denying his motion to dismiss the burglary charge. We disagree.
Defendant contends there was a fatal variance between the first-degree burglary charge in the indictment and the evidence shown at trial because the indictment listed the address of the fraternity house as "3500 Elizabeth Street" while the actual address was 500 Elizabeth Street. On this basis, he moved to dismiss the burglary charge at the close of all evidence.
"In order to prevail on such a motion, the defendant must show a fatal variance between the offense charged and the proof as to `[t]he gist of the offense.' This means that the defendant must show a variance regarding an essential element of the offense." State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (citations omitted). As discussed above, the exact street address of the location of an alleged burglary is not an essential element of the offense of burglary. Ruffin, 90 N.C. App. at 708, 370 S.E.2d at 277. The unamended indictment sufficiently identified the location of the alleged burglary. Further, the trial court properly allowed an amendment to the indictment to reflect the correct street number. This assignment of error is overruled.
III
Defendant also argues that the trial court erred in failing to properly instruct the jury on intent in the burglary charge. We disagree.
Defendant cites State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988), for the proposition that
a request for an instruction at the charge conference is sufficient compliance with [Appellate Rule 10(b)(2)] to warrant our full review on appeal where the requested instruction is subsequently promised but not given, notwithstanding any failure to bring the error to the trial judge's attention at the end of the instructions.
Here, during the charge conference, the State requested an instruction on intent which the trial court agreed to give. Therefore, defendant has properly preserved this issue for our review.
Defendant contends that the instruction on intent violated his due process right under the Fourth Amendment to the United States Constitution, which requires that every element of the crime charged be proved beyond a reasonable doubt. U.S. Const. amend. IV. Intent to commit a felony is an essential element of burglary. Singletary, 344 N.C. at 101, 472 S.E.2d at 899. We thus consider whether the trial court erred in its instruction and whether any error was harmless beyond a reasonable doubt. Ross, 322 N.C. at 265-66, 367 S.E.2d at 891-92 (citing N.C. Gen. Stat. § 15A-1443(b)). When an instruction is requested, the trial court need not use any exact or specific language, but must only give the instruction in substance, that it is a correct statement of the law. State v. Miller, 344 N.C. 658, 671, 477 S.E.2d 915, 923-24 (1996).
North Carolina Pattern Jury Instruction-Crim. 120.10 states, in pertinent part:
Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. You arrive at the intent of a person by such just and reasonable deductions from the circumstances proven as a reasonably prudent person would ordinarily draw therefrom.
N.C.P.I.-Crim. 120.10 (2009). The trial court instructed the jury, "[i]ntent is a mental attitude seldom provable by direct evidence. It must be proven by circumstances that you may infer from the evidence that you hear."
In his brief, defendant's entire argument regarding prejudice is:
There was no direct evidence in this case that the Defendant broke and entered the fraternity house with the intent to commit larceny. Because the trial court failed to instruct the jury as it indicated it would as to a fact necessary to constitute the crime with which he was charged, the error is not harmless . .
The trial court's instruction was accurate as to the definition of intent and its tendency to be proved by inference; it merely omitted the direction that jurors employ the standard of a reasonable prudent person in drawing their inferences. The trial court gave the requested instruction in substance and accurately stated the law. Thus, we conclude that the trial did not err in giving its instruction on intent. Even if the trial court had erred, defendant would not have prevailed on appeal. Defendant makes no argument that he was prejudiced by the omission of the "reasonably prudent person" language; rather, he only contends that intent in this case was not based on direct evidence. As quoted above and acknowledged by defendant in his brief, the trial court fully instructed the jury on this point. This assignment of error is overruled.
NO ERROR.
Judges HUNTER, Robert C. and JACKSON concur.
Report per Rule 30(e).