State v. McKenzie , 773 S.E.2d 574 ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-1216
Filed: 19 May 2015
Scotland County, No. 11 CRS 52610
STATE OF NORTH CAROLINA
v.
ALLEN DEAN McKENZIE
Appeal by defendant from judgments entered 2 May 2014 by Judge Thomas
Lock in Scotland County Superior Court. Heard in the Court of Appeals 27 April
2015.
Attorney General Roy Cooper, by Assistant Attorney General Erin O. Scott, for
the State.
Wait Law, P.L.L.C., by John L. Wait, for defendant-appellant.
DIETZ, Judge.
Defendant Allen Dean McKenzie appeals from his conviction and sentence for
breaking or entering and larceny after breaking or entering. McKenzie contends that
the trial court erred by allowing the State’s motion to amend the indictment to change
the alleged date of the offenses and admitting certain evidence made relevant by the
amendment.
STATE V. MCKENZIE
Opinion of the Court
For the reasons discussed below, we hold that the trial court properly allowed
the State’s motion to amend because the date of the offense is not an essential element
of either breaking or entering, or larceny after breaking or entering, and the
amendment did not prejudice McKenzie’s ability to present his defense. The trial
court’s admission of evidence that became relevant as a result of the amendment was
likewise not an abuse of discretion. Accordingly, we find no error.
Facts and Procedural History
Don Simons owned a ten-acre Scotland County property that included four
chicken houses and associated equipment, such as feeders, water lines, and heaters.
On 8 September 2011, after returning from a trip, Mr. Simons went to the property
for the first time in two or three weeks and discovered items were missing, including
twelve chicken feeders and two auger motors. After Mr. Simons discovered the theft,
he went to see Tommy Clark, a neighbor whom he had asked to watch the property.
Mr. Clark told Mr. Simons that several weeks earlier he and his uncle saw Defendant
Allen Dean McKenzie driving away from the property in a truck with feeders in the
back. Mr. Clark thought Mr. Simons had sold the property.
After speaking to Mr. Clark, Mr. Simons reported the incident to the sheriff.
Mr. Simons initially reported that he thought the crime was committed by “Eric
Clark,” but he testified at trial that he was confused about the names at the time
because he had just spoken with Mr. Clark shortly before speaking to the sheriff.
-2-
STATE V. MCKENZIE
Opinion of the Court
Officers spoke to Mr. Clark and his uncle, who informed them that they had seen
McKenzie taking the feeders from the property in his truck about two or three weeks
before Mr. Simons discovered the items had been taken.
On 19 September 2011, McKenzie reported to the sheriff’s office after a
warrant was issued for his arrest. After being fingerprinted, McKenzie signed a
waiver of his Miranda rights and made a police statement:
We didn’t break into nothing. Only 2 motors on an Auger
were taken out of one of the chicken houses. All the other
stuff was taken from around the chicken houses. Scrap
Metal and 6 chicken feeders. The scrap metal consisted of
metal brackets/paint cans, pieces of aluminum – just junk
laying in fields.
McKenzie also told the investigator who took his statement that if he was going to be
charged “for picking up junk that had been laying around for years he should have a
lot more warrants coming.”
At trial, Brenda Ward testified that she had known McKenzie for more than
twenty-five years. Ms. Ward identified her handwriting on five scrap tickets from
Scotland Salvage issued to McKenzie in August of 2011. The tickets showed
McKenzie received payment for hundreds of pounds of scrap material. McKenzie
objected to the admission of those tickets into evidence because the dates on the
tickets were all in early to mid-August, prior to the dates of the offenses alleged on
the indictment, 22 August 2011 through 8 September 2011. In response, the State
moved to amend the indictment to change the first date in the range to 1 August
-3-
STATE V. MCKENZIE
Opinion of the Court
2011. The trial court allowed the motion to amend the indictment, and the tickets
were admitted into evidence over McKenzie’s objection.
The jury found McKenzie guilty of felony breaking or entering and felony
larceny after breaking or entering. On 2 May 2014, the trial court entered judgments
imposing two consecutive terms of 18 to 22 months in prison.
On 7 May 2014, McKenzie sent a letter to the clerk of court stating that he
wanted to appeal from the judgments and requesting an appeal bond. That same
day, Judge Mary Ann Tally signed appellate entries noticing McKenzie’s appeal and
appointing appellate counsel. On 15 January 2015, McKenzie filed a petition for writ
of certiorari in this Court seeking to preserve his right to appellate review in light of
the fact that he never gave oral notice of appeal at trial or filed an adequate written
notice of appeal pursuant to Rule 4 of the North Carolina Rules of Appellate
Procedure. In response, the State argued that the appeal should be dismissed
because petitioner’s pro se notice of appeal was not properly served on the State.
Analysis
McKenzie’s notice of appeal has multiple deficiencies, including lack of proof of
service on the State and failure to designate the court to which appeal is taken.
Accordingly, we must dismiss the appeal for failure to comply with N.C. R. App. P. 4
(2013). In our discretion pursuant to N.C. R. App. P. 21(a), however, we allow
McKenzie’s petition for writ of certiorari in order to review the trial court’s judgments.
-4-
STATE V. MCKENZIE
Opinion of the Court
McKenzie presents two related arguments on appeal: (1) that the trial court
erred by allowing the State’s motion to amend the indictment; and (2) that McKenzie
was prejudiced by the admission of the scrap yard tickets, which were records of
activity that took place outside of the offense dates originally alleged. For the reasons
discussed below, we reject McKenzie’s arguments.
“We review the trial court’s granting of the State’s motion to amend the
indictment de novo.” State v. Avent, 222 N.C. App. 147, 148, 729 S.E.2d 708, 710,
disc. review denied, 366 N.C. 411, 736 S.E.2d 176 (2012). Amendments to an
indictment are only permissible if they do not “substantially alter the charge in the
original indictment.” State v. Bowen, 139 N.C. App. 18, 27, 533 S.E.2d 248, 254 (2000)
(internal quotation marks omitted); see also N.C. Gen. Stat. § 15A-923(e) (2013)
(generally disallowing the amendment of indictments). “Where time is not an
essential element of the crime, an amendment in the indictment 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. Campbell, 133 N.C. App. 531, 535, 515
S.E.2d 732, 735 (1999). “Accordingly, allowing amendment of the indictment would
not constitute reversible error unless the date was an essential element of the crime.”
State v. May, 159 N.C. App. 159, 162, 583 S.E.2d 302, 304 (2003).
McKenzie was indicted for breaking or entering and larceny after breaking or
entering, and a jury convicted him of the same offenses. “The essential elements of
-5-
STATE V. MCKENZIE
Opinion of the Court
felonious breaking or entering are (1) the breaking or entering (2) of any building (3)
with the intent to commit any felony or larceny therein.” State v. Litchford, 78 N.C.
App. 722, 725, 338 S.E.2d 575, 577 (1986) (citing N.C. Gen. Stat. § 14-54(a)). The
essential elements of larceny are that the defendant: “(1) took the property of another;
(2) carried it away; (3) without the owner’s consent, and (4) with the intent to deprive
the owner of the property permanently.” State v. Reeves, 62 N.C. App. 219, 223, 302
S.E.2d 658, 660 (1983); see also N.C. Gen. Stat. § 14-72. The offense is a felony,
regardless of the value of the property taken, if it is committed as part of a breaking
or entering. State v. Jones, 188 N.C. App. 562, 568, 655 S.E.2d 915, 919 (2008); see
also N.C. Gen. Stat. § 14-72(b)(2).
We therefore hold that the trial court properly allowed the State’s motion to
amend the indictment because the date of the offense was not an essential element
of either offense. See State v. Riffe, 191 N.C. App. 86, 94, 661 S.E.2d 899, 905 (2008);
May, 159 N.C. App. at 162, 583 S.E.2d at 304. We also hold that the trial court’s
decision to permit amendment did not prejudice McKenzie’s ability to prepare a
defense. McKenzie did not present an alibi defense or other defense that depended
on the particular dates alleged in the indictment, and he received copies of the scrap
yard tickets well in advance of trial and knew the State intended to submit them as
evidence of his crime. Accordingly, we find no error in the trial court’s ruling on the
-6-
STATE V. MCKENZIE
Opinion of the Court
State’s motion to amend the indictment to clarify the dates on which the State alleged
the crimes occurred.
Having found no error in the amendment to the indictment, we must also reject
McKenzie’s argument concerning admission of the scrap yard tickets. McKenzie’s
sole basis for challenging the admission of the scrap yard tickets into evidence is his
contention that the indictment could not be amended to include the date range when
those tickets were generated. Because we reject McKenzie’s argument concerning
the amendment to the indictment, we likewise reject his argument concerning the
admissibility of this evidence.
Conclusion
The trial court did not err in allowing the State’s motion to amend the
indictment and admitting the scrap yard tickets into evidence.
NO ERROR.
Judges BRYANT and TYSON concur.
Report per Rule 30(e).
-7-