{ "id": 8301196, "name": "STATE OF NORTH CAROLINA v. KARENNA T. JONES", "name_abbreviation": "State v. Jones", "decision_date": "2006-04-18", "docket_number": "No. COA05-901", "first_page": "269", "last_page": "273", "citations": [ { "type": "official", "cite": "177 N.C. App. 269" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "618 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633848 ], "year": 2005, "pin_cites": [ { "page": "255", "parenthetical": "quoting State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997)" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0253-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-168.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "213 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1975, "pin_cites": [ { "page": "400" }, { "page": "401" }, { "page": "401-02" }, { "page": "402" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554170 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "413" }, { "page": "414" }, { "page": "415" }, { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0412-01" ] }, { "cite": "87 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8697336 ], "year": 1882, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc/87/0558-01" ] }, { "cite": "570 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "127" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 500", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250590 ], "year": 2002, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0500-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "264 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "900" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 259", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550134 ], "year": 1980, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0259-01" ] }, { "cite": "337 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 572", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522768 ], "year": 1985, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0572-01" ] }, { "cite": "596 S.E.2d 275", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "281-82", "parenthetical": "quoting State v. Boykin, 78 N.C. App. 572, 576, 337 S.E.2d 678, 681 (1985)" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 430", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8898097 ], "year": 2004, "pin_cites": [ { "page": "438", "parenthetical": "quoting State v. Boykin, 78 N.C. App. 572, 576, 337 S.E.2d 678, 681 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0430-01" ] }, { "cite": "279 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "303 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574100 ], "year": 1981, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0507-01" ] }, { "cite": "572 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "436", "parenthetical": "quoting State v. Williams, 303 N.C. 507, 510, 279 S.E.2d 592, 594 (1981)" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250373 ], "year": 2002, "pin_cites": [ { "page": "423", "parenthetical": "quoting State v. Williams, 303 N.C. 507, 510, 279 S.E.2d 592, 594 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0419-01" ] }, { "cite": "488 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "172" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "346 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139473 ], "year": 1997, "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0628-01" ] }, { "cite": "173 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353160 ], "year": 2005, "pin_cites": [ { "page": "197", "parenthetical": "quoting State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0194-01" ] } ], "analysis": { "cardinality": 581, "char_count": 9985, "ocr_confidence": 0.737, "pagerank": { "raw": 3.947228449531221e-07, "percentile": 0.903667742791182 }, "sha256": "8a4532988f88567b47da21cf4bd22d14d3ddc7f879c275e651b428f9d0b23860", "simhash": "1:2f18553be7bf64fc", "word_count": 1681 }, "last_updated": "2023-07-14T22:32:29.259677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KARENNA T. JONES" ], "opinions": [ { "text": "McCullough, judge.\nKarenna T. Jones (\u201cdefendant\u201d) appeals from judgment entered upon a jury verdict finding her guilty of felonious larceny. We reverse.\nThe State presented evidence tending to show: in June of 2002, Ora Evans (\u201cthe victim\u201d), a resident of Onslow County, returned to 5226 Shields Road in Tillery, North Carolina, to take care of her ailing mother. The victim, uncomfortable with the presence of the many health care workers in her mother\u2019s home, buried $13,400 in cash (\u201cthe money\u201d) in her mother\u2019s backyard. The victim testified she placed $3,400 in a zipper pouch (\u201cthe pouch\u201d), while the remaining $10,000 was placed in a metal box (\u201cthe box\u201d). In the pouch, the victim described through receipts how she accumulated the money. Further, the victim included a written note (\u201cthe note\u201d) in the pouch. The note stated she and her son were the owners of the money. The note included information such as the date she buried the money, her address in Tillery, and the total amount buried. The victim wrapped the money, the receipts, and the note in aluminum foil and then placed everything in a hole she dug in her mother\u2019s backyard. The victim also drew a map in order to locate the area where she buried the money. She placed the map in her personal files at home in Onslow County.\nShortly after the victim\u2019s mother died in November 2002, she returned to Onslow County. On 4 January 2004, the victim and her nephew came back to 5226 Shields Road to retrieve her money. Once there, the victim realized her mother\u2019s mobile home was rented to defendant. The victim identified herself and her nephew to defendant and told defendant she had work to do in the backyard. Defendant consented at first, but quickly came to the backyard, yelled at the victim, and eventually asked her to leave. After being threatened with a gun by defendant, the victim left and went to the Scotland Neck Police Department (\u201cDepartment\u201d) for assistance. The victim returned with a deputy who permitted her to dig for ten minutes, however, the victim failed to locate her money.\nDeputy Tim Parker (\u201cDeputy Parker\u201d) testified he was called to 5226 Shields Road on 7 January 2004 \u201cin reference to somebody inside of a residence.\u201d When Deputy Parker arrived, he spoke to defendant. Defendant informed Deputy Parker of the victim\u2019s digging in the backyard. Defendant admitted to Deputy Parker that \u201cshe got curious and went out there and got a shovel. . . [and] dug one time [and] hit a metal box . . . and dug it up. And she gave me the items in the box.\u201d Defendant told Deputy Parker the box contained approximately $3,000 and that she spent it. Defendant gave Deputy Parker the pouch which only contained the receipts. The pouch previously contained the money and the note.\nDetective Bruce Temple (\u201cDetective Temple\u201d) investigated the situation and after conversing with Deputy Parker, testified a warrant was obtained for defendant\u2019s arrest on 27 January 2004. Detective Temple further testified in response to questioning, defendant admitted taking $3200 from the yard and spending it all on bills, shopping, and meals. Defendant presented no evidence.\nDefendant was found guilty of felony larceny and was sentenced to a minimum of five months to a maximum of six months in the North Carolina Department of Correction. Defendant\u2019s sentence was suspended and she was placed on supervised probation for 24 months. Defendant was ordered to pay $14,666 in restitution, attorneys fees, and court costs. Defendant appeals.\nI. Motion to Dismiss \u2014 Variance Between Indictment and Evidence:\nDefendant argues the trial court erred in denying her motion to dismiss because a fatal variance existed between the indictment and the evidence presented at trial. Defendant contends no trespassory taking occurred since her leasehold granted her lawful possession of the real property at 5226 Shields Road. Defendant further contends that absent a trespass, there can be no felonious larceny. We agree.\n\u201c \u2018A variance between the criminal offense charged and the offense established by the evidence is in essence a failure of the State to establish the offense charged.\u2019 \u201d State v. Langley, 173 N.C. App. 194, 197, 618 S.E.2d 253, 255 (2005) (quoting State v. Pickens, 346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997)). However, \u201c[a] variance between the offense alleged in the indictment and the evidence presented at trial is not always fatal.\u201d Id. (emphasis added). Thus, \u201c[i]t is only \u2018where the evidence tends to show the commission of an offense not charged in the indictment [that] there is a fatal variance between the allegations and the proof requiring dismissal.\u2019 \u201d Id. (citing State v. Poole, 154 N.C. App. 419, 423, 572 S.E.2d 433, 436 (2002) (quoting State v. Williams, 303 N.C. 507, 510, 279 S.E.2d 592, 594 (1981)). \u201cAccordingly, the defendant must show a variance with respect to an essential element of the offense.\u201d Id.\n\u201cThe crime of larceny requires the \u2018taking by trespass and carrying away by any person of the goods or personal property of another, without the latter\u2019s consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker\u2019s own use.\u2019 \u201d State v. Friend, 164 N.C. App. 430, 438, 596 S.E.2d 275, 281-82 (2004) (quoting State v. Boykin, 78 N.C. App. 572, 576, 337 S.E.2d 678, 681 (1985)); State v. Moore, 46 N.C. App. 259, 261, 264 S.E.2d 899, 900 (1980). Further, \u201c[w]hen the property has a value of more than one thousand dollars ($1,000), the larceny is a Class H felony. N.C. Gen. Stat. \u00a7 14-72(a) [(2005)].\u201d State v. Barbour, 153 N.C. App. 500, 502, 570 S.E.2d 126, 127 (2002). Importantly, \u201c[e]very larceny includes a trespass; and if there be no trespass in taking the goods, there can be no felony committed in carrying them away.\u201d State v. Webb, 87 N.C. 558, 559 (1882).\nIn the instant case and in alignment with State v. Bailey, 25 N.C. App. 412, 213 S.E.2d 400 (1975), the defendant here did not trespass and thus did not commit felonious larceny. Bailey involved a defendant who rented a mobile home including the. inside furnishings. Bailey, 25 N.C. App. at 413, 213 S.E.2d at 400. The furnishings consisted of \u201ca mattress and box springs ... a couch, chair and three tables in the living room [] and a dinette set... [with] a table and four chairs in the kitchen area.\u201d Id. The defendant decided to move and \u201cc[a]me out of [the] trailer . . . carrying . . . box springs [and a] mattress ... a living room suite, a dining room suite, and tables.\u201d Id. The defendant was found guilty of misdemeanor larceny. Id. 25 N.C. App. at 414, 213 S.E.2d at 401. This Court framed the issue in Bailey as \u201cwhether defendant was in lawful possession of the furniture at the time it was allegedly taken and carried away by him.\u201d Id. 25 N.C. App. at 415. This Court reasoned \u201c[i]f he was in lawful possession then there was no trespass in the taking and, hence, no larceny at common law.\u201d Id. 213 S.E.2d at 401-02. This Court determined the defendant was in lawful possession of the furnishings and reversed his conviction. Id. 25 N.C. App. at 416, 213 S.E.2d at 402.\nSimilarly, here the defendant was in lawful possession of the real property at 5226 Shields Road where the victim buried her money. The defendant had a valid lease to rent not only the mobile home, but also the property upon which the mobile home was located. Defendant\u2019s leasehold entitled her to lawful possession of the real property and consequently, the money the victim buried in the real property. In Bailey, proof the defendant lawfully possessed the property in question and thus did not engage in a trespassory taking existed in that \u201cthe furniture was in the trailer for [his] use and enjoyment, and he had complete access as well as control over it by virtue of his tenancy even though title remained in the landlord.\u201d Id. (emphasis added). In the case sub judice, the defendant, pursuant to a valid leasehold, was entitled to lawful possession of both the mobile home and the real property. Moreover, she had access and control over the real property by virtue of her leasehold, including the money buried by the victim. Since defendant did not engage in a trespassory taking, an essential element of larceny is missing. Thus, a fatal variance exists between the indictment and the evidence presented at trial.\nAs noted by defendant, upon the facts presented in this case, \u201cthe crime [she] may have committed\u201d (defendant\u2019s brief, p.15) would be conversion by a lessee. See N.C. Gen. Stat. \u00a7 14-168.1 (2005) (\u201c[e]very person entrusted with any property as ... lessee ... who fraudulently converts the same, or the proceeds thereof, to his own use, or secretes it with a fraudulent intent to convert it to his own use, shall be guilty of a Class 1 misdemeanor\u201d unless the value of the property converted exceeds $400.00 resulting in a \u201cClass H felony.\u201d)\nReversed.\nJudges McGEE and GEER concur.\n. Victim testified this money was earned over the years from her labor, her now deceased husband\u2019s labor, and the sale of timber. Victim also testified she and her husband kept this money to avoid having to go to the bank.", "type": "majority", "author": "McCullough, judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Hope Murphy White for the State.", "Adrian M. Lapas, for defendant-appellant. \u25a0" ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KARENNA T. JONES\nNo. COA05-901\n(Filed 18 April 2006)\nLarceny\u2014 trespass as necessary element \u2014 money dug from leased property by leaseholder \u2014 variance between indictment and evidence\nEvery larceny includes a trespass. There was a fatal variance between the indictment and the evidence in this case because defendant was leasing the property in which she found buried money. Her leasehold entitled her to lawful possession of the real property and the money; the crime she may have committed was conversion by a lessee.\nAppeal by defendant from judgment entered 3 March 2005 by Judge Alma L. Hinton in Halifax County Superior Court. Heard in the Court of Appeals 22 March 2006.\nAttorney General Roy Cooper, by Assistant Attorney General Hope Murphy White for the State.\nAdrian M. Lapas, for defendant-appellant. \u25a0" }, "file_name": "0269-01", "first_page_order": 303, "last_page_order": 307 }