State v. Austin ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-44
Filed: 20 October 2015
Wake County, Nos. 13 CRS 2345, 211442
STATE OF NORTH CAROLINA
v.
SHERRY ENDOLEEN AUSTIN
Appeal by defendant from judgment entered 7 May 2014 by Judge Donald W.
Stephens in Wake County Superior Court. Heard in the Court of Appeals 8
September 2015.
Attorney General Roy Cooper, by Assistant Attorney General Derek L. Hunter,
for the State.
M. Alexander Charns for defendant-appellant.
BRYANT, Judge.
Where the variations between allegations contained in an indictment and
testimony presented at trial are minor, there is no fatal variance. Further, an
allegation in an indictment that defendant stole five items of clothing is sufficiently
specific to put defendant on notice as to the charges against her. We find no error in
the judgment of the trial court.
On 16 May 2013, defendant went to the Triangle Town Center in Raleigh,
North Carolina. She entered the Hollister clothing store and went to the women’s
STATE V. AUSTIN
Opinion of the Court
section, where she selected two items of clothing. Defendant then proceeded to the
men’s section of the store and picked up five more items. Gabriel Fisher (“Fisher”),
an asset protection agent, testified he observed defendant walk behind a table,
remove the security devices from those five items, and conceal them in her own
clothing.
Defendant then proceeded to purchase the two items she had selected from the
women’s department. As she attempted to exit the store, she was approached by
Fisher and other asset protection team members. Defendant admitted to taking the
five items. Each of the items had a small hole where the security device had been
removed. The discarded security devices were recovered near the table where the
defendant had been observed standing.
Defendant was arrested and indicted for felony larceny from a merchant and
attaining the status of an habitual felon. Beginning 6 May 2014, defendant was tried
by a jury in Wake County Superior Court. At the close of the State’s evidence and at
the close of all the evidence, defendant made a motion to dismiss the felony larceny
charge, arguing that (1) there was a fatal variance between the indictment and the
evidence at trial regarding the entity that was alleged to own the property, and (2)
the indictment did not allege with sufficient specificity which items were stolen by
defendant. The trial court denied the motions.
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Opinion of the Court
Initially, the jury indicated that it had found defendant guilty of misdemeanor
larceny. However, the jury was polled and after one juror indicated that she did not
concur in the verdict, the trial court determined that that verdict was not unanimous
and ordered the jury to continue deliberations. The jury subsequently returned a
verdict finding defendant guilty of felony larceny from a merchant. Defendant then
pled guilty to attaining the status of an habitual felon. The trial court sentenced
defendant in the mitigated range to a term of 67 to 93 months of imprisonment.
Defendant timely appealed.
______________________________________________________
On appeal, defendant raises the following issues: whether the trial court erred
by (I) failing to grant defendant’s motions to dismiss the felony larceny from a
merchant charge based on a fatal variance, and (II) not entering the jury’s initial
verdict of guilty of misdemeanor larceny.
I
Defendant argues that the trial court erred by denying her motions to dismiss
the felony larceny charge. Specifically, defendant contends that there was a fatal
variance between the indictment and the proof at trial and that the indictment
inadequately alleged which items were stolen by defendant. We disagree.
Defendant first asserts that there was a fatal variance between the owner of
the stolen property alleged in the indictment and the proof presented at trial. “It is
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Opinion of the Court
well established that ‘[a] defendant must be convicted, if at all, of the particular
offense charged in the indictment’ and that ‘[t]he State’s proof must conform to the
specific allegations contained’ therein.” State v. Henry, ___ N.C. App. ___, ___, 765
S.E.2d 94, 102 (2014) (quoting State v. Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d
649, 651 (1985)). Thus, “a fatal variance between the indictment and proof is properly
raised by a motion for judgment as of nonsuit or a motion to dismiss, since there is
not sufficient evidence to support the charge laid in the indictment.” State v.
Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894 (1979). “This court reviews the trial
court’s denial of a motion to dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62,
650 S.E.2d 29, 33 (2007).
In this case, the indictment alleged that defendant
unlawfully, willfully, and feloniously did steal, take, and
carry away 5 (five) items of clothing, the personal property
of Hollister, Inc. (A Division of Abercrombie & Fitch Stores,
Inc.) without the consent of Hollister, Inc. (A Division of
Abercrombie & Fitch Stores, Inc.), a merchant, by
removing, destroying, or deactivating a component of an
anti-shoplifting or inventory control device to prevent the
activation of any anti-shoplifting or inventory control
device, having such value of $197.50 . . . .
Defendant argues that the evidence presented by the State did not establish that the
clothing was stolen from Hollister, Inc.
At trial, Fisher identified himself as an asset protection agent for Abercrombie
& Fitch. He then testified as follows:
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Opinion of the Court
Q. Explain to the jury how Abercrombie & Fitch is
associated with Hollister?
A. Hollister is actually basically a brand of Abercrombie &
Fitch. There are several brands underneath the
Abercrombie & Fitch name. Abercrombie & Fitch,
Abercrombie Kids, and Hollister. They [sic] used to be
Gilly Hicks until recently as well.
...
Q. So Hollister is a retail department store; is that correct?
A. Correct.
...
Q. Who owned the property that Ms. Austin took out of the
store without paying?
A. Hollister.
It is clear from this testimony that Fisher was referring to the same corporate entity
that was the alleged owner of the property in the indictment.
Our Courts have held that minor variations between the name of the corporate
entity alleged in the indictment and the evidence presented at trial are immaterial
so long as “[t]he defendant was adequately informed of the corporation which was the
accuser and victim. A variance will not be deemed fatal where there is no controversy
as to who in fact was the true owner of the property.” State v. Ellis, 33 N.C. App. 667,
669, 236 S.E.2d 299, 301 (1977); see also State v. Wyatt, 254 N.C. 220, 118 S.E.2d 420(1961) (finding no fatal variance where the indictment for embezzlement alleged
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Opinion of the Court
ownership by the “Pestroy Exterminating Company,” the bill of particulars alleged
ownership in “Pestroy Exterminators, Inc.,” and the evidence at trial referred to both
of these names as well as “Pestroy Exterminating Corporation”); State v. Davis, 253
N.C. 224, 226, 116 S.E.2d 381, 383 (1960) (“The fact that the property was stolen from
T.A. Turner & Co., Inc. rather than from T.A. Turner Co., a corporation, as charged
in the bill of indictment, is not a fatal variance.”); State v. Morris, 156 N.C. App. 335,
576 S.E.2d 391 (2003) (finding no fatal variance where the indictment referred to the
employer as “AAA Gas and Appliance Company, Inc.” and the evidence at trial
referred to the corporation as “AAA Gas and Appliance Company,” “AAA Gas,” or
“AAA”). Accordingly, the minor variations between the name alleged in the
indictment, “Hollister, Inc.,” and the evidence presented at trial did not create a fatal
variance in this case.
Defendant next asserts that the indictment’s allegation that she removed a
singular “inventory control device” created a fatal variance when the only testimony
provided at trial was that she either removed no devices, as defendant herself
testified, or that she removed more than one device, as testified to by the State’s
witness, Fisher. However, this variance was not fatal. “An indictment is not facially
invalid as long as it notifies an accused of the charges against him sufficiently to allow
him to prepare an adequate defense and to protect him from double jeopardy.” State
v. Haddock, 191 N.C. App. 474, 476–77, 664 S.E.2d 339, 342 (2008). Consequently,
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Opinion of the Court
the difference between the singular “device” alleged in the indictment and the plural
“devices” testified to at trial did not create a fatal variance. See Henry, ___ N.C. App.
at ___, 765 S.E.2d at 103–04 (rejecting a fatal variance argument because “[i]t is
difficult to discern how the mistaken addition of the letter ‘s’ prevented the
indictment from providing Defendant sufficient notice of the general manner in which
he resisted . . . or how it could leave Defendant exposed to double jeopardy.”).
Defendant also contends that the allegation in the indictment that she stole “5
(five) items of clothing” lacked the specificity needed to inform defendant of the
charges against her and protect her from double jeopardy. However, this Court has
previously held that an allegation that the defendant stole “assorted items of clothing,
having a value of $504.99 the property of Payne’s, Inc.,” was “sufficiently descriptive
to fulfill the purposes of an indictment.” State v. Monk, 36 N.C. App. 337, 340–41,
244 S.E.2d 186, 188–89 (1978). The allegation in the indictment is sufficiently
specific to inform defendant of the charges against her. This argument is overruled,
and defendant’s subsequent double jeopardy argument is without merit.
II
Defendant argues that the trial court erred by failing to enter the jury’s initial
verdict of guilty to misdemeanor larceny. However, defendant concedes this
argument “is a preservation argument as the current state of North Carolina
statutory and case law does not support it.”
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Opinion of the Court
After the misdemeanor larceny verdict was announced and the jury was polled,
the court determined that the verdict was not unanimous, as required by N.C. Gen.
Stat. 15A-1237(b) (2013). As a result, the court properly did not accept the jury’s
initial verdict, and that verdict was not final. See State v. Best, 280 N.C. 413, 419,
186 S.E.2d 1, 5 (1972) (“The verdict is not complete until accepted by the court.”).
This argument is overruled.
NO ERROR.
Judges Geer and TYSON concur.
Report per Rule 30(e).
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