Opinion
No. COA03-20
Filed 7 October 2003 This case not for publication
Appeal by defendant from judgment entered 20 March 2002 by Judge Stafford G. Bullock in Wake County Superior Court. Heard in the Court of Appeals 29 September 2003.
Attorney General Roy Cooper, by Assistant Attorney General James C. Holloway, for the State. Paul M. Green for defendant-appellant.
Wake County No. 01 CRS 68313.
Defendant appeals from a jury verdict finding him guilty of first degree burglary but not guilty of felony larceny. The Honorable Stafford G. Bullock sentenced defendant to an active prison term of 115 to 147 months. Defendant contends his conviction must be vacated due to a material variance between the allegations of the indictment and the State's proof at trial. We disagree and affirm.
The indictment charged that on 21 July 2001, defendant
unlawfully, willfully and feloniously did during the nighttime between the hours of 10:00 p.m. and 11:00 p.m., break and enter the dwelling house of Lawrence Jones located at 113 Ashe Avenue, Raleigh, N.C. At the time of the breaking and entering the dwelling house was actually occupied by Lawrence Jones. The defendant broke and entered with the intent to commit larceny.
The State's evidence tended to show that on the night of 21 July 2001, defendant was visiting Danny Weaver, who rented one of five rooms of a rooming house at 113 Ashe Avenue. Weaver, as an employee of the landlord, had a master key to all rooms in the house in order to perform light maintenance on the building. Lawrence Jones rented an upstairs room across the hallway from Weaver. Jones consented to defendant's presence in the common areas of the house but did not give defendant permission to enter his room. Between 9:30 and 10:00 p.m., while Jones was asleep in his room with the door locked, Jones heard someone unlock and open his door and reach into a cup of coins which Jones kept on his dresser for bus fare. Jones jumped out of bed and saw defendant stealing his money. He chased defendant out of his room, down the stairs of the rooming house and out to a porch. When Jones arrived outside, defendant was sitting on the porch with Weaver. Jones accused defendant of taking his money, and defendant responded, "What are you going to do call the police." Jones reported the incident to police the next day.
In claiming a fatal variance between the indictment's allegations and the State's proof, defendant avers the indictment charged him with entering the "dwelling house" at 113 Ashe Avenue while the State's evidence established only a non-consensual entry into Jones' "sleeping apartment" within the house. Defendant insists the indictment and judgment are insufficient "to establish a plea of former jeopardy," because the indictment failed to identify the specific premises he was charged with entering non-consensually. Similarly, because defendant contends he had Jones' consent to be in the rooming house on the night in question, defendant claims the State's evidence was insufficient to establish the crime charged in the indictment.
Under N.C. Gen. Stat. § 15A-924(a)(5) (2001), an indictment must provide the defendant with "[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation." "[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) (citing State v. Smith, 267 N.C. 755, 148 S.E.2d 844 (1966)). Moreover, "[i]t is generally prejudicial error for a trial judge to permit a jury to convict on a theory not supported by the bill of indictment." State v. Williams, 153 N.C. App. 192, 194, 568 S.E.2d 890, 892 (2002) (citing State v. Taylor, 301 N.C. 164, 170, 270 S.E.2d 409, 413 (1980)), disc. review improv. allowed, 357 N.C. 45, 577 S.E.2d 618 (2003). As quoted above, the instant indictment charged defendant with burglarizing "the dwelling house of Lawrence Jones located at 113 Ashe Avenue, Raleigh, N.C." Emphasizing the reference to a "dwelling house," defendant asserts, "[t]here is nothing in the indictment to raise the issue of entry into a locked bedroom inside the house." Therefore, defendant contends the trial court committed plain error in instructing the jury that he was charged with entering Jones' "sleeping apartment."
We conclude the indictment's reference to "the dwelling house of Lawrence Jones" properly identified Jones' individual room in the rooming house as the site of the burglary and was entirely consistent with the State's proffer at trial. As we have previously explained, "[t]here may be several dwelling units in a single structure, as the rooms of an inn, hotel, or lodging house. In such case, each room is regarded as the `dwelling house' of its respective occupant." State v. Merritt, 120 N.C. App. 732, 736, 463 S.E.2d 590, 593 (1995) (citing Charles E. Torcia, Wharton's Criminal Law § 335, at 208 (14th ed. 1980), disc. review denied, 342 N.C. 897, 467 S.E.2d 738 (1996). The rooms in a rooming house are thus "considered individual dwelling houses for purposes of our burglary statute." Id. at 737, 463 S.E.2d at 593; see also State v. Clinton, 3 N.C. App. 571, 574, 165 S.E.2d 343, 345 (1969) (finding a room in a rooming house to be a "dwelling house" under N.C. Gen. Stat. § 14-54).
The indictment alleged and the State proved defendant's unauthorized, nighttime entry into the "dwelling house of Lawrence Jones" which was "located at 113 Ashe Avenue, Raleigh, N.C." By identifying the individual "dwelling house" rented and occupied by Jones as the site of the charged burglary, the indictment met the requirements of N.C. Gen. Stat. § 15A-924(a)(5) and supported the judgment entered upon the jury's guilty verdict. See State v. Coffey, 289 N.C. 431, 438, 222 S.E.2d 217, 221 (1976). If defendant desired additional details of the charge against him, his recourse was to move for a bill of particulars pursuant to N.C. Gen. Stat. § 15A-925 (2001). See State v. Russell, 282 N.C. 240, 244-45, 192 S.E.2d 294, 297 (1972) (citing State v. Shade, 115 N.C. 757, 758, 20 S.E. 537, 537 (1894)). Moreover, because Jones' room is considered a dwelling house for purposes of N.C. Gen. Stat. § 14-51, we find no variance, fatal or otherwise, between the allegations in the indictment and the facts proved at trial. Finally, to the extent defendant assigns plain error to the trial court's use of the term "sleeping apartment" rather than "dwelling house" in its charge to the jury, we find no reasonable probability that the court's choice of words affected the verdict. See generally State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 145 L.Ed.2d 681 (2000).
The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. By rule, we deem them abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).