State v. Bacon , 254 N.C. App. 463 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1268
Filed: 18 July 2017
Columbus County, No. 13 CRS 53957-58
STATE OF NORTH CAROLINA
v.
JAWANZ BACON
Appeal by Defendant from judgment entered 29 June 2016 by Judge D. Jack
Hooks in Superior Court, Columbus County. Heard in the Court of Appeals 15 May
2017.
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
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Opinion of the Court
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 Sheriff’s 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 sheriff’s
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
1 Ms. Faison testified that she did not think about her surveillance equipment until after the
police had left her residence.
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Opinion of the Court
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 Sheriff’s 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
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Opinion of the Court
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
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Opinion of the Court
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
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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
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Opinion of the Court
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.
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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, 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. Holley, 35 N.C. App. 64, 67,
239 S.E.2d 853, 855 (1978) (internal citations and quotations omitted).
Concerning ownership of stolen property, a variance between an indictment
and the evidence presented at trial can be fatal: “‘If the proof shows that the article
stolen was not the property of the person alleged in the indictment to be the owner of
it, the variance is fatal and a motion for judgment of nonsuit should be allowed.’”
State v. Schultz, 294 N.C. 281, 285, 240 S.E.2d 451, 454 (1978) (citation omitted). “It
is, however, sufficient if the person alleged in the indictment to be the owner has a
special property interest, such as that of a bailee or a custodian.” Id. at 285, 240
S.E.2d at 454-55; see also State v. Carr, 21 N.C. App. 470, 472, 204 S.E.2d 892, 894
(1974); State v. Smith, 266 N.C. 747, 749, 147 S.E.2d 165, 166 (1966) (where no fatal
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Opinion of the Court
variance occurred when a father, who had custody and control of his daughter’s pistol
at the time the pistol was stolen, was found to be a bailee). The fact that items were
stolen from a particular residence does not automatically give rise to a special
property interest in the owner of that residence. See State v. Eppley, 282 N.C. 249,
259-60, 192 S.E.2d 441, 448 (1972) (where a fatal variance was found when a stolen
shotgun belonged to the homeowner’s father, and not the homeowner named in the
indictment).
In the present case, while Ms. Faison did have actual possession of all of the
stolen items — as they were taken from her home — she was not the owner of the
laptop, the camera, or the gaming system. Further, the State failed to produce any
evidence that Ms. Faison was a bailee or otherwise had a special property interest in
those items. Id.
The State, relying on State v. Carr, argues that a possessor has a special
property interest in an item when that person has sole possession, use, and control of
the item. State v. Carr, 21 N.C. App. 470, 471-72, 204 S.E.2d 892, 893-94 (1974).
However, Carr is readily distinguishable from the present case because, in Carr, a
son was found to have a special interest in a vehicle owned by his father’s business
and the son regarded the vehicle as his own, possessing it at all times and taking it
with him to college. See id. When Ms. Faison was asked whether she owned all of
the items stolen from her house, she answered: “No. . . . . The laptop was my
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Opinion of the Court
daughter’s, and the . . . camera and the game[ing system] was [sic] my friend’s.” Ms.
Faison merely stated that the items were in her possession in her home at the time
of the theft, but provided no more information relating to any possible special interest
in the property. Not only did the State fail to produce evidence tending to show that
Ms. Faison regarded the laptop, the camera, and the gaming system as her own, it
also failed to show how Ms. Faison came to possess these items or that she had any
special interest in them whatsoever.
The State further argues that “a parent has a special custodial interest in the
property of his minor child kept in the parent’s residence,” and therefore Ms. Faison
had a special property interest in her daughter’s laptop. See State v. Salters, 137 N.C.
App. 553, 555-56, 528 S.E.2d 386, 389 (2000). However, as Defendant points out, Ms.
Colson is not the minor child of Ms. Faison, but rather is an adult child who did not
live in Ms. Faison’s home. Therefore, we distinguish the present case from Salters
and turn to Eppley for guidance. In Eppley, no special property interest was found
where a father’s shotgun was stolen from his son’s home, but no evidence was
presented that the person named in the indictment – the son – was a bailee or had
any special property interest in the shotgun. Eppley, 282 N.C. at 259-60, 192 S.E.2d
at 448. When asked whether she owned all of the items stolen from her house, Ms.
Faison answered: “No. . . . . The laptop was my daughter’s.” Nothing in the evidence
beyond Ms. Faison’s actual possession of the laptop suggests that she had a special
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property interest in it. The present case is much like Eppley in that Ms. Faison
actually possessed an adult relative’s property in her home when the property was
stolen, but no evidence whatsoever was provided to show that Ms. Faison held any
special interest in the property.
We, therefore, hold that the evidence presented at trial was sufficient to
demonstrate that Ms. Faison was the owner of the television and the earrings, but
that there was a fatal variance between the ownership of the laptop, the camera, and
the gaming system as alleged in the indictment, and the evidence of ownership
presented at trial.
While we have located no authority directly on point regarding a fatal variance
in ownership of some, but not all, of the items alleged to have been stolen, in general:
“A defect in an indictment is considered fatal if it wholly fails to charge some offense
. . . or fails to state some essential and necessary element of the offense of which the
defendant is found guilty.” State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416,
419 (1998) (emphasis added) (internal citations and quotations omitted). Further,
“[w]hen an averment in an indictment is not necessary in charging the offense, it will
be ‘deemed to be surplusage.’” Seelig, 226 N.C. App. at 163, 738 S.E.2d at 438
(citations omitted). As the indictment included all the required elements alleging
Defendant stole the television and the earrings from Ms. Faison’s residence, the
indictment properly alleged all the elements of larceny. Any allegations in the
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indictment that were not necessary to support the larceny charge – whether felony
larceny or the lesser-included offense of misdemeanor larceny – are deemed to be
surplusage. Id. We are therefore left with an indictment that reads as follows:
The defendant named above unlawfully, willfully and
feloniously did steal, take and carry away a flatscreen
television, . . . [and] 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.
“It is usually held . . . that the verdict of the jury is not vulnerable to a motion
in arrest of judgment because of defects in the indictment, unless the indictment
wholly fails to charge some offense cognizable at law or fails to state some essential
and necessary element of the offense of which the defendant is found guilty.” State
v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943) (internal citations omitted)
(emphasis added). Where there are less serious defects, it is proper to object by
motion to quash the indictment or to demand a bill of particulars. Id. We therefore
affirm the trial court’s denial of Defendant’s motion to dismiss the larceny charge
based upon an alleged fatal variance between the indictment and the evidence
presented at trial, and we address Defendant’s additional arguments without
considering the surplusage contained in the larceny indictment.
B. Evidence of Value to Support Felonious Larceny
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Opinion of the Court
Next, Defendant argues the trial court erred in failing to dismiss the felonious
larceny charge for insufficiency of the evidence. Specifically, Defendant contends
there was insufficient evidence as to the value of the stolen items. We agree.
We review the denial of a motion to dismiss de novo. State v. Smith, 186 N.C.
App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon defendant’s motion for dismissal, the
question for the Court is whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included therein, and (2) of
defendant’s being the perpetrator of such offense.” State v. Barnes, 334 N.C. 67, 75,
430 S.E.2d 914, 918 (1993) (citation omitted). The evidence is viewed in the light
most favorable to the State. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994).
N.C. Gen. Stat. § 14-72 provides two separate bases for elevating misdemeanor
larceny to felonious larceny relevant to this appeal: (1) “Larceny of goods of the value
of more than one thousand dollars ($1,000) is a Class H felony[,]” N.C. Gen. Stat. §
14-72(a) (2015); and (2) “[t]he crime of larceny is a felony, without regard to the value
of the property in question, if the larceny is . . . [c]ommitted pursuant to a violation
of . . . [N.C. Gen. Stat. §] 14-54[.]” N.C. Gen. Stat. § 14-72(b)(2) (2015). N.C. Gen.
Stat. § 14-54(a) states: “Any person who breaks or enters any building with intent to
commit any felony or larceny therein shall be punished as a Class H felon.” N.C. Gen.
Stat. § 14-54(a) (2015).
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The language of the indictment appears to have charged Defendant with
felonious larceny pursuant to both N.C.G.S. § 14-72(a) and 14-72(b)(2):
[D]efendant named above unlawfully, willfully and
feloniously did steal, take and carry away a flatscreen
television . . . [and] 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.2
However, the trial court expressly declined to instruct the jury on the charge of felony
larceny committed pursuant to N.C.G.S. § 14-54 – intent to commit larceny after
breaking or entering. When the State requested that the trial court instruct the jury
on felonious larceny after breaking or entering, the judge responded:
You may be right, and when it’s over, you show me and I’ll
apologize to you and tell you I’m wrong. But we tried it this
way off this indictment, and we are going to stay with the
instructions off this indictment, which to my mind are
value in excess of $1,000.
We have long recognized that “a defendant may not be convicted of an offense on a
theory of his guilt different from that presented to the jury.” State v. Smith, 65 N.C.
App. 770, 773, 310 S.E.2d 115, 117 (1984). For example: “[A] conviction for felony
larceny may not be based on the value of the thing taken when the trial court has
instructed the jury only on larceny pursuant to burglarious entry.” Id. Thus, because
the jury was only instructed on felonious larceny based upon the stolen items having
2 We have removed the language deemed surplusage in our analysis of Defendant’s first
argument above, and only consider the property of Ms. Faison in our analysis – the television and the
earrings.
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Opinion of the Court
a value in excess of $1,000.00, Defendant’s conviction could not have been based on
larceny pursuant to breaking or entering.
The trial court instructed the jury solely on felonious larceny based upon the
stolen property having a value in excess of $1,000.00 pursuant to N.C.G.S. § 14-72(a).
The trial court also instructed the jury on the lesser-included offense of misdemeanor
larceny. In response to Defendant’s objection to the lack of evidence of value
presented at trial, the trial court ruled that the value of the stolen items was a
question of fact for the jury to decide, even though the State presented no specific
evidence concerning the value of any of the stolen items.
However, this Court has held that a jury cannot estimate the value of an item
without any evidence put forth to establish a basis for that estimation. See In re J.H.,
177 N.C. App. 776, 778-79, 630 S.E.2d 457, 459 (2006) (where the jury could not
presume that a five-year-old Ford Focus had a value over $1,000.00 absent any
evidence of the car’s condition or value). Though certain property may, by its very
nature, be of value obviously greater than $1000.00, like the Ford Focus in J.H., the
television and the earrings in this matter are not such items. Because the State
presented no evidence upon which the jury could reasonably ascertain the combined
value of the television and the earrings, the State failed to meet its burden of proving
the value element of felonious larceny. We hold that the State failed to present
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Opinion of the Court
sufficient evidence at trial to support the charge of felonious larceny and, therefore,
the trial court erred in denying Defendant’s motion to dismiss that charge.
It is proper to vacate and remand for entry of judgment and resentencing on a
lesser-included offense when a trial court instructed the jury on a lesser-included
offense, along with the greater offense, and the jury necessarily found that all the
elements necessary to establish the lesser-included offense were proven, but the
evidence presented at trial was insufficient to prove an essential element of the
greater offense. State v. Snead, 239 N.C. App. 439, 448, 768 S.E.2d 344, 350 (2015);
see also State v. Jolly, 297 N.C. 121, 130, 254 S.E.2d 1, 7 (1979) (“in finding defendant
guilty of [the greater offense], the jury necessarily had to find facts establishing the
[lesser offense] . . . [so] it follows that the verdict returned by the jury must be
considered a verdict of guilty of [the lesser offence]”). Accordingly, we vacate
Defendant’s conviction of felonious larceny and remand for entry of judgment and re-
sentencing for misdemeanor larceny.
C. Defendant’s Alibi Witness
Finally, Defendant argues that the trial court abused its discretion by
excluding Defendant’s alibi witness as a sanction for Defendant’s violation of
discovery rules. We disagree.
The trial court granted the State’s motion to exclude Mr. Bacon based upon
Defendant’s failure to give timely notice that he intended to call Mr. Bacon as an alibi
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witness. When the State complies with its discovery obligations, the defendant is
required to give notice of any alibi defense within twenty working days after the case
is set for trial. N.C. Gen. Stat. § 15A-905(c)(1).
(a) If at any time during the course of the proceedings the
court determines that a party has failed to comply with this
Article or with an order issued pursuant to this Article, the
court in addition to exercising its contempt powers may
....
(3) Prohibit the party from introducing evidence not
disclosed[.]
(b) Prior to finding any sanctions appropriate, the court
shall consider both the materiality of the subject matter
and the totality of the circumstances surrounding an
alleged failure to comply with this Article or an order
issued pursuant to this Article.
N.C. Gen. Stat. § 15A-910 (2015).
“A trial court’s decision concerning the imposition of discovery-related
sanctions . . . may only be reversed based upon a finding that the trial court abused
its discretion, which means that the trial court’s ruling was so arbitrary that it could
not have been the result of a reasoned decision.” State v. Allen, 222 N.C. App. 707,
733, 731 S.E.2d 510, 528 (2012) (internal citation, quotation, and bracketing omitted).
In making its decision, the trial court considered the materiality of Mr. Bacon’s
proposed testimony. When asked about specifics regarding Defendant’s stay at his
home, Mr. Bacon testified as follows:
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Q. Now, on the day in question, that is, December 4, 2013,
was [Defendant] residing with you?
A. Yes.
Q. And how long had that been the case?
A. He comes and stay with me weeks at a time. I remember
the incident good, because it was my birthday. December
2nd is on my birthday.
Q. So he had come to visit you on December 2nd?
A. Yeah.
Q. And he had stayed over through December 4th?
A. Yeah.
Q. Were you aware of his whereabouts over the course of
December 4th?
A. Yeah. He was there with me.
Q. For what period of time was he there with you?
A. He was there earlier. He was there a couple days before
my birthday and stayed until – I remember my wife taking
him home and bringing – and coming back with the
newspaper. The newspaper come out on Thursday. And she
read about it in the newspaper. And I said, “Well, how
could he do that when he was here?”
Q. In particular, sir, what we are asking about is – you may
not have been with him every second of every moment,
every minute. What period of time can you definitely testify
as to his whereabouts?
A. I don’t live on no big estate, you know. I live in a small
house. I had an eye on him. He was right there. He didn’t
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go nowhere.
Q. For December 12th – excuse me – December 4th?
A. Yeah. Until that Thursday. That’s when his grandma
took him home.
Q. And do you recall what date that was, sir?
A. It was – I know the newspaper come out on Thursday.
Because my birthday is on the 2nd. So he was there until
Thursday. I can’t recall what date that was.
Q. All right, sir.
A. But it had to happen before then, because it was already
in the newspaper when my wife came home with it.
(Emphasis added).
The incident occurred on 4 December 2013. Generally, Mr. Bacon’s testimony
was very vague concerning Defendant’s whereabouts during the relevant time period.
Mr. Bacon could not account for Defendant’s whereabouts for any specific part of 4
December 2013, even had he been able to establish that Defendant was residing with
him on that day.
More specifically, Mr. Bacon ties the date he remembers Defendant being with
him — 4 December 2013 — to an article in the paper that apparently identified
Defendant as the suspect in the 4 December 2013 incident. Mr. Bacon testified that
he knew Defendant was with him on 4 December 2013 because the very next day,
“[t]he newspaper come [sic] out[.] And [my wife] read about it in the newspaper. And
I said, ‘Well, how could he do that when he was here?’” However, Defendant was not
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arrested until 31 December 2013, and no article related to his arrest could have been
published before that date. Therefore, Mr. Bacon’s testimony suggested he was
remembering Defendant being at Mr. Bacon’s residence on a date after 31 December
2013. This contradicts the record, which shows that, after his arrest on 31 December
2013, Defendant was in custody until 9 October 2014. Given that no article could
have been published about Defendant’s arrest before Defendant was arrested and
given that Defendant spent 283 days incarcerated after his arrest, Mr. Bacon’s
testimony regarding his wife taking Defendant home and bringing back the alleged
newspaper article is not reliable.
Considering the materiality of Mr. Bacon’s proposed testimony, which we find
minimal, and the totality of the circumstances surrounding Defendant’s failure to
comply with his discovery obligations, we cannot find that the trial court abused its
discretion in excluding this testimony pursuant to N.C.G.S. § 15A-910.3 Allen, 222
N.C. App. at 733, 731 S.E.2d at 528.
3 Defendant argues that he should be awarded a new trial because the trial court failed to
make findings of fact, as required by N.C.G.S. § 15A-910(d), beyond that notice had not been given.
However, the failure to make findings of fact does not per se require a new trial. State v. Adams, 67
N.C. App. 116, 122, 312 S.E.2d 498, 501 (1984) (“the failure to make such findings here thus does not
merit reversal or remand”). In the present case, Defendant fails to show how the exclusion of the
single alibi witness equates to the “extreme sanction” of dismissal of charges or what prejudice
Defendant suffered from the lack of detailed findings of fact. State v. Foster, 235 N.C. App. 365, 379,
761 S.E.2d 208, 218 (2014). Given the circumstances of this case, we decline to hold that the trial court
abused its discretion by excluding the testimony of Defendant’s alibi witness. Adams, 67 N.C. App. at
122, 312 S.E.2d at 501.
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STATE V. BACON
Opinion of the Court
Even were we to assume, arguendo, that it was error for the trial court to
exclude Mr. Bacon’s testimony as a discovery sanction, Defendant has failed to show
that the error was prejudicial. In order to show prejudice requiring reversal,
Defendant must show “that there is a reasonable possibility that a different result
would have been reached had the error not been committed. N.C. Gen. Stat. § 15A–
1443(a) (2005).” State v. Jones, 188 N.C. App. 562, 569, 655 S.E.2d 915, 920 (2008).
As discussed above, Mr. Bacon’s testimony was disjointed, imprecise, and seemingly
contradicted by the facts. We do not believe Mr. Bacon’s testimony would have
provided meaningful alibi evidence for Defendant on 4 December 2013. Ms. Faison
recognized Defendant as he was walking down the street and reported this to the
police, who followed up and identified Defendant. Both Ms. Faison and Ms. Colson
independently identified Defendant, with near certainty, as the perpetrator after they
had, according to their testimony, viewed the video of the actual break-in and had
received multiple good looks at Defendant during the break-in and larceny. We
conclude there was no reasonable possibility that the jury would have reached a
different result had Mr. Bacon’s alibi testimony been allowed. See Jones, 188 N.C.
App. at 570, 655 S.E.2d at 920.
Finally, Defendant’s ineffective assistance of counsel claim is premature and
should have been initially considered pursuant to a motion for appropriate relief by
the trial court. State v. Parmaei, 180 N.C. App. 179, 185, 636 S.E.2d 322, 326 (2006)
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STATE V. BACON
Opinion of the Court
(“claims of ineffective assistance of counsel should be considered through motions for
appropriate relief and not on direct appeal”). However, we hold that Defendant’s
ineffective assistance of counsel claim must fail for the same reasons mentioned
immediately above.
To prevail on an ineffective assistance of counsel claim, Defendant must
demonstrate not only that the trial counsel’s conduct fell below an objective standard
of reasonableness, but must also prove that his attorney’s deficient performance
prejudiced Defendant such that Defendant was deprived of a fair trial. State v.
Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985). For the reasons discussed
above, we hold that Defendant has failed to meet the burden of showing either that
his attorney’s performance fell below an objective standard of reasonableness, or that
any deficient performance of his attorney prejudiced Defendant. Defendant’s claim
of ineffective assistance of counsel is without merit.
III. Conclusion
Defendant does not challenge his conviction for felony breaking or entering, so
that conviction stands. We hold that the trial court erred in denying Defendant’s
motion to dismiss with respect to the charge of felony larceny, but that the evidence
and the elements properly found by the jury support entry of judgment for the lesser-
included offense of misdemeanor larceny. We therefore vacate Defendant’s conviction
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STATE V. BACON
Opinion of the Court
for felony larceny and remand for resentencing based upon misdemeanor larceny.
Defendant’s arguments related to the exclusion of Mr. Bacon’s testimony fail.
NO ERROR IN PART, VACATED IN PART, AND REMANDED.
Judges TYSON and INMAN concur.
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