{ "id": 4155327, "name": "STATE OF NORTH CAROLINA v. ANDRE JONES, SR.", "name_abbreviation": "State v. Jones", "decision_date": "2008-02-05", "docket_number": "No. COA07-969", "first_page": "562", "last_page": "570", "citations": [ { "type": "official", "cite": "188 N.C. App. 562" } ], "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": "631 S.E.2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636187 ], "year": 2006, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0054-01" ] }, { "cite": "651 S.E.2d 865", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639491 ], "year": 2007, "pin_cites": [ { "page": "866", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0865-01" ] }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "902" } ], "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "178 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376797 ], "year": 2006, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0211-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2005, "pin_cites": [ { "page": "(a)" }, { "page": "(b)(2)" }, { "page": "(a)" }, { "page": "(b)" }, { "page": "(b)(2)" } ], "opinion_index": 0 }, { "cite": "255 S.E.2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "153" } ], "opinion_index": 0 }, { "cite": "297 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570500 ], "year": 1979, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0399-01" ] }, { "cite": "157 S.E.2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "342", "parenthetical": "stating that \"no fatal variance existed between the allegation and proof, it being apparent that all the witnesses were referring to the same corporation^]\" even though the name of the corporation in the indictment varied from the actual name of the corporation" } ], "opinion_index": 0 }, { "cite": "271 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566320 ], "year": 1967, "pin_cites": [ { "page": "654", "parenthetical": "stating that \"no fatal variance existed between the allegation and proof, it being apparent that all the witnesses were referring to the same corporation^]\" even though the name of the corporation in the indictment varied from the actual name of the corporation" } ], "opinion_index": 0, "case_paths": [ "/nc/271/0646-01" ] }, { "cite": "290 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "630", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "305 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571096 ], "year": 1982, "pin_cites": [ { "page": "472-73", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0463-01" ] }, { "cite": "2 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "year": 1794, "opinion_index": 0 }, { "cite": "337 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "520", "parenthetical": "citing State v. Twitty, 2 N.C. 102 (1794)" }, { "page": "520" }, { "page": "521" } ], "opinion_index": 0 }, { "cite": "315 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719180 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "194", "parenthetical": "citing State v. Twitty, 2 N.C. 102 (1794)" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0191-01" ] }, { "cite": "161 S.E.2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "771", "parenthetical": "stating that \"it is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense\"" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552884 ], "year": 1968, "pin_cites": [ { "page": "365", "parenthetical": "stating that \"it is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0361-01" ] }, { "cite": "562 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "457", "parenthetical": "citing State v. McDowell, 1 N.C. App. 361, 365, 161 S.E.2d 769, 771 (1968) (stating that \"it is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense\"" }, { "page": "457" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 588", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9130405 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "594", "parenthetical": "citing State v. McDowell, 1 N.C. App. 361, 365, 161 S.E.2d 769, 771 (1968) (stating that \"it is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense\"" }, { "page": "594" }, { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0588-01" ] }, { "cite": "299 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "838" }, { "page": "838" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523655 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "711" }, { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0705-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2005, "pin_cites": [ { "page": "(a)" }, { "page": "(c)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "352 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "84 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168400 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/84/0299-01" ] }, { "cite": "369 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "102", "parenthetical": "citing State v. White, 84 N.C. App. 299, 352 S.E.2d 261 (1987)" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525304 ], "year": 1988, "pin_cites": [ { "page": "533", "parenthetical": "citing State v. White, 84 N.C. App. 299, 352 S.E.2d 261 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0532-01" ] }, { "cite": "361 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738802 ], "year": 2007, "pin_cites": [ { "page": "678", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0675-01" ] }, { "cite": "323 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "year": 1984, "pin_cites": [ { "page": "434-35" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "468 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "224", "parenthetical": "quoting State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984)" } ], "opinion_index": 0 }, { "cite": "343 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798912 ], "year": 1996, "pin_cites": [ { "page": "65", "parenthetical": "quoting State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0061-01" ] } ], "analysis": { "cardinality": 792, "char_count": 19553, "ocr_confidence": 0.751, "pagerank": { "raw": 1.2815585576312558e-07, "percentile": 0.6176555081010514 }, "sha256": "a8dacd1981facab0b2b023da44cda76fdf9e2a5d1c0ad5bb62cf7b851d3dbb96", "simhash": "1:a3897806563be744", "word_count": 3203 }, "last_updated": "2023-07-14T21:34:30.605877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANDRE JONES, SR." ], "opinions": [ { "text": "ARROWOOD, Judge.\nDefendant appeals from judgment entered convicting him of felonious breaking and entering and felonious larceny. We find no error.\nThe evidence tends to show that Andrew Jones, Sr. (Defendant) lived near Lindsay Hardison (Hardison); their backyards were adjacent. Hardison employed Defendant on several occasions to help him clear his yard and to paint. However, Hardison quickly discharged Defendant for his unreliability.\nIn January 2006, Hardison left his home to go to work, and at approximately 1:30 P.M., he returned to find his garage door opened. The garage, in which Hardison kept tools, paint and electrical cords, was an independent structure, fifteen feet from Hardison\u2019s home, and the garage did not have a lock; rather, the door was a metal \u201croll-up\u201d door. When Hardison investigated the opened garage door, he discovered that his work bench had been cleared of the power tools and extension cords. Hardison called the police.\nTwo months later, Hardison saw an extension cord in Defendant\u2019s back yard draped over the fence and coiling to a neighbor\u2019s residence. Hardison again called the police, and the police obtained and employed a search warrant, finding an orange power cord in Defendant\u2019s master bedroom, which Hardison identified as property stolen from his garage. Hardison stated at trial that he \u201cput [his] initials on the bottom corner of the tags so that [he] . . . [could] be sure [they were] the right ones.\u201d Hardison noticed that the cord in his neighbor\u2019s yard had a \u201ctag with my initials on it.\u201d\nAt trial, Defendant and Sarah Jones (Jones), Defendant\u2019s wife, admitted that their electricity had been turned off because they failed to pay the electric bills, that the extension cords were borrowed, and that Defendant used the extension cords for electricity from their neighbor\u2019s home.\nOn 13 November 2006, Defendant was indicted on the charges of felonious breaking and entering and felonious larceny after breaking and entering. On \u00cd3 March 2007, the court entered judgment convicting Defendant of both charges. The convictions were consolidated and Defendant was sentenced to six to eight months in the Department of Correction.\nSufficiency of Indictment\nIn his first argument, Defendant contends that the trial court erred by failing to dismiss the charge of felonious breaking and entering because there was a fatal variance between the indictment and the evidence. We disagree.\nA bill of indictment must contain the following:\nA 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\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\nN.C. Gen. Stat. \u00a7 15A-924(a)(5) (2005). An indictment \u201c \u2018is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense.\u2019 \u201d State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996) (quoting State v. Coker, 312 N.C. 432, 434-35, 323 S.E.2d 343, 346 (1984)). \u201c[T]he primary purpose of the indictment is to enable the accused to prepare for trial.\u201d State v. Farrar, 361 N.C. 675, 678, 651 S.E.2d 865, 866 (2007) (internal quotation marks omitted).\n\u201cTo support a conviction for felonious breaking and entering under [N.C. Gen. Stat.] \u00a7 14-54(a), there must exist substantial evidence of each of the following elements: (1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein.\u201d State v. Walton, 90 N.C. App. 532, 533, 369 S.E.2d 101, 102 (1988) (citing State v. White, 84 N.C. App. 299, 352 S.E.2d 261 (1987)). N.C. Gen. Stat. \u00a7 14-54 (2005) specifically requires the following:\n(a) 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) As used in this section, \u201cbuilding\u201d shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.\nOccupancy of the \u201cbuilding\u201d is not an element of the offense of felonious breaking and entering. State v. Young, 60 N.C. App. 705, 711, 299 S.E.2d 834, 838 (1983).\n\u201cIn order for a variance [in an indictment] to warrant reversal, the variance must be material.\u201d State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002) (citing State v. McDowell, 1 N.C. App. 361, 365, 161 S.E.2d 769, 771 (1968) (stating that \u201cit is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense\u201d). \u201cA variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged. Norman, 149 N.C. App. at 594, 562 S.E.2d at 457 (citing 41 Am. Jur. 2d Indictments and Information \u00a7 259).\nIn the instant case, the indictment for felonious breaking and entering states, in pertinent part, the following: \u201c[t]he defendant. . . did break and enter a building occupied by Lindsay Hardison, used as a residence[.]\u201d Defendant specifically argues that because the indictment alleges that Defendant broke and entered into a \u201cresidence,\u201d when the facts tend to show that Defendant broke and entered into a \u201cbuilding\u201d outside the residence, there was a fatal variance between the indictment and the evidence. We find this argument unconvincing for the following reasons: (1) the Court has previously expounded the meaning of \u201cresidence\u201d or \u201cdwelling house\u201d with regard to burglary to include buildings in the curtilage of the \u201cdwelling house\u201d; (2) the trial transcript reveals that the indictment enabled the accused to prepare for trial; and (3) the occupancy of the \u201cbuilding\u201d in question was not an essential element of the offense of felonious breaking and entering. For the foregoing reasons, the word \u201cresidence\u201d in the indictment here was surplusage, and the variance between the indictment and the evidence, if any, was not material.\nFirst, we examine the related law regarding the crime of burglary, in which the Court has expounded the meaning of \u201cresidence\u201d or \u201cdwelling house\u201d to include buildings in the curtilage of the dwelling. \u201cThe curtilage is the land around a dwelling house upon which those outbuildings lie that are \u2018commonly used with the dwelling house.\u2019 \u201d State v. Fields, 315 N.C. 191, 194, 337 S.E.2d 518, 520 (1985) (citing State v. Twitty, 2 N.C. 102 (1794)). Our Supreme Court has held that the definition of a \u201cdwelling house\u201d is not limited to the \u201chouse proper\u201d:\nThe term \u201cdwelling-house\u201d includes within it not only the house in which the owner or renter and his family, or any member of it, may live and sleep, but all other houses appurtenant thereto, and used as part and parcel thereof, such as kitchen, smokehouse, and the like: provided they'are within the curtilage, or are adjacent or very near to the dwelling-house. If the kitchen, smokehouse, or other house of that kind be placed at a great distance from the dwelling, and particularly if it stand outside of the curtilage or inclosed [sic] yard, it cannot be considered a part of the dwelling-house for the purpose of being protected against a burglary. The reason is that the law protects from unauthorized violence the dwelling-house and those which are appurtenant, because it is the place of the owner\u2019s repose; and if he choose to put his kitchen or smokehouse so far from his dwelling that his repose is not likely to be disturbed by the breaking into it at night, it is his own folly. In such cases the law will no more protect him than it will when he leaves his doors or windows open.\nState v. Green, 305 N.C. 463, 472-73, 290 S.E.2d 625, 630 (1982) (citation omitted). \u201cThe question whether a building was part of the dwelling rested upon whether it served the \u2018comfort and convenience\u2019 of the dwelling.\u201d Fields, 315 N.C. at 194, 337 S.E.2d at 520. \u201c[T]he visual and auditory proximity of outbuildings that serve the comfort and convenience of the homeowner is ... a useful theoretical measure of whether those buildings lie within or beyond the curtilage.\u201d Id. at 195, 337 S.E.2d at 521.\nHere, although the law pertaining to the definition of \u201cdwelling house\u201d in relation to the crime of burglary is not binding precedent to N.C. Gen. Stat. \u00a7 14-54 and the crime of felonious breaking and entering, we find the logic of the Court\u2019s interpretation of \u201cdwelling house\u201d pertinent and persuasive. Here, the evidence tended to show that the \u201cbuilding\u201d was a small garage, fifteen feet from the home, serving the comfort and convenience of the homeowner, and within close visual and auditory proximity. The building was within the curtilage of the residence.\nSecond, the trial transcript reveals that the indictment enabled the accused to prepare for trial. See State v. Miller, 271 N.C. 646, 654, 157 S.E.2d 335, 342 (1967) (stating that \u201cno fatal variance existed between the allegation and proof, it being apparent that all the witnesses were referring to the same corporation^]\u201d even though the name of the corporation in the indictment varied from the actual name of the corporation); see also State v. Simpson, 297 N.C. 399, 409, 255 S.E.2d 147, 153 (1979) (stating that \u201c[t]he description of [a] house . . . was adequate to bring the indictment within the language of the statute\u201d and the house was \u201cidentified with sufficient particularity to enable the defendant to prepare his defense[,]\u201d even though the indictment contained an error in the street address). In the instant case, when asked \u201c[d]id you ever have occasion while working with . . . Mr. Hardison to go into his garage or storage shed,\u201d Defendant stated, \u201cI had no reason to ask him that.\u201d When asked, \u201c[was] the garage open or shut while you [painted][,]\u201d Defendant answered, \u201cIt was open.\u201d When asked whether he had ever been in the garage, Defendant replied, \u201c[I\u2019ve] never been in that garage, ever. . . . Not a single [time].\u201d The transcript revealed that Defendant and the other witness who testified on Defendant\u2019s behalf showed no confusion as to whether the stolen items were stored in the house or the garage. The witnesses referred to the same garage, which housed the tools and cords \u2014 not to Hardison\u2019s residence \u2014 and the Defendant presented an ordered and prepared defense at trial.\nThird, the occupancy of the \u201cbuilding\u201d in question was not an essential element of the offense of felonious breaking and entering. Young, 60 N.C. App. at 711, 299 S.E.2d at 838. N.C. Gen. Stat. \u00a7 14-54(a) only requires that there must exist substantial evidence of each of the following elements: (1) the breaking or entering, (2) of any building, (3) with the intent to commit any felony or larceny therein. \u201c[B]uilding\u201d is \u201cconstrued to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property[.]\u201d N.C. Gen. Stat. \u00a7 14-54(c) (2005). Therefore, the allegation in the indictment here that \u201c[tjhe defendant . . . did break and enter a building occupied by Lindsay Hardison, used as a residence ... with the intent to commit a felony therein[,]\u201d contained surplus language. The indictment would have been sufficient to state that \u201cthe defendant did break and enter a building with the intent to commit a felony therein.\u201d' Because Hardison\u2019s occupation of the building was not an essential element of the crime of felonious breaking and entering, and because \u201c[a] variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged[,]\u201d Norman, 149 N.C. App. at 594, 562 S.E.2d at 457, we conclude that the variance here, if any, was not material. The language in the indictment in the case sub judice regarding the occupancy of the building by Hardison, and the building\u2019s use as a residence, was not essential to the crime of felonious breaking and entering.\nWe accordingly hold that the allegations in the indictment support the elements of the offense of felonious breaking and entering pursuant to N.C. Gen. Stat. \u00a7 14-54(a). This assignment of error is overruled.\nSufficiency of Evidence\nIn his second argument, Defendant contends that because the felony breaking and entering charge must be dismissed due to the fatal variance between the indictment and the evidence, the charge of felonious larceny must also be dismissed, because the value of the stolen goods was below $1,000. See N.C. Gen. Stat. \u00a7 14-72(a) (2005). We disagree. The variance, if any, between the indictment and the evidence regarding the felonious breaking and entering of the garage was not material, and therefore, Defendant\u2019s felonious larceny conviction pursuant to N.C. Gen. Stat. \u00a7 14-72(b)(2) (2005) was proper.\nPursuant to N.C. Gen. Stat. \u00a7 14-72(a), \u201c[l]arceny of goods of the value of more than' one thousand dollars ($ 1,000) is a Class H felony[,] . . . [and] where the value of the property or goods is not more than one thousand dollars ($ 1,000), [larceny of property] is a Class 1 misdemeanor.\u201d However, N.C. Gen. Stat. \u00a7 14-72(b), states that \u201c[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 G.S... . 14-54[.]\u201d See also State v. Brooks, 178 N.C. App. 211, 215, 631 S.E.2d 54, 57 (2006).\nWe conclude that Defendant\u2019s felonious larceny conviction pursuant to N.C. Gen. Stat. \u00a7 14-72(b)(2) was proper as incident to Defendant\u2019s felonious breaking and entering pursuant to N.C. Gen. Stat. \u00a7 14-54. This assignment of error is overruled.\nExclusion of Evidence\nIn his third argument, Defendant contends that the trial court erred by excluding the testimony of two witnesses who would have corroborated Defendant\u2019s alibi testimony that he was given and loaned the electrical cords. We conclude that the exclusion of the testimony, even if error, was not prejudicial.\n\u201c \u2018Relevant evidence\u2019 means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2005). \u201c[E]ven though a trial court\u2019s rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.\u201d State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991). \u201cWhen relevant evidence not involving a right arising under the Constitution of the United States is erroneously excluded, a defendant has the burden of showing that the error was prejudicial.\u201d State v. Weeks, 322 N.C. 152, 163, 367 S.E.2d 895, 902 (1988). This burden may be met by showing that there is a reasonable possibility that a different result would have been reached had the error not been committed. N.C. Gen. Stat. \u00a7 15A-1443(a) (2005).\nIn the instant case, Defendant specifically argues that the trial court erred by excluding the testimony of James Ragland (Ragland) and Gail Taylor (Taylor), regarding their loan or gift to Defendant of the power cords and equipment. Specifically, Ragland testified on voir dire that Defendant borrowed power cords from him, and Taylor testified on voir dire that she gave Defendant equipment that she no longer needed, including a \u201clawn mower\u201d and a \u201cleaf blower.\u201d\nWe decline to address whether the trial court erred in excluding the testimony of Ragland and Taylor because even assuming arguendo that it was error for the trial court to exclude this testimony, we hold that Defendant has failed to show prejudice as required by N.C. Gen. Stat. \u00a7 15A-1443(a). The evidence supporting Defendant\u2019s conviction is strong, and tends to show that the power cords were specifically identifiable, with specific notations of Hardison\u2019s initials on them. We cannot conclude that a different result would have been reached at trial had the trial court admitted the foregoing testimony. Thus, this assignment of error is overruled.\nFor the foregoing reasons, we conclude that Defendant received a fair trial, free from prejudicial error.\nNo Error.\nJudges MCCULLOUGH and ELMORE concur.", "type": "majority", "author": "ARROWOOD, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State.", "Parish & Cooke, by James R. Parish for Defendant-Appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANDRE JONES, SR.\nNo. COA07-969\n(Filed 5 February 2008)\n1. Burglary and Unlawful Breaking or Entering\u2014 felonious breaking and entering \u2014 allegation of residence \u2014 building within curtilage \u2014 no fatal variance\nThe trial court did not err by failing to dismiss the charge of felonious breaking and entering under N.C.G.S. \u00a7 14-54(a) based on an alleged fatal variance between the indictment and the evidence where the indictment alleged defendant broke and entered into the residence when the facts tended to show that defendant broke and entered into a building outside the residence, because: (1) a variance is not material, and thus not fatal, if it does not involve an essential element of the crime charged; (2) the court has previously expounded the meaning of residence or dwelling house with regard to burglary to include buildings in the curtilage of the dwelling house, and the same logic is pertinent and persuasive for felonious breaking and entering; (3) the transcript revealed the indictment enabled the accused to prepare for trial; and (4) the occupancy of the pertinent building was not an essential element of the offense, and thus the word \u201cresidence\u201d in the indictment was mere surplusage.\n2. Larceny\u2014 felonious larceny \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by failing to dismiss the charge of felonious larceny, even though defendant contends the value of stolen goods was below $1,000 because: (1) contrary to defendant\u2019s assertion, the variance, if any, between the indictment and the evidence regarding the felonious breaking and entering of the garage was not material; and (2) N.C.G.S. \u00a7 14-72(b) states that the crime of larceny is a felony, without regard to the value of the property in question, if the larceny was committed pursuant to a felonious breaking and entering in violation of N.C.G.S. \u00a7 14-54 such as in this case.\n3. Evidence\u2014 exclusion of testimony \u2014 failure to show prejudice\nEven assuming error in a felonious breaking and entering and felonious larceny case based on the trial court\u2019s exclusion of the testimony of two witnesses who would allegedly have corroborated defendant\u2019s alibi testimony that he was given and loaned the pertinent electric cords by the witnesses, defendant failed to show prejudice as required by N.C.G.S. \u00a7 15A-1443(a) when: (1) the evidence supporting defendant\u2019s conviction was strong and tended to show that the power cords were specifically identifiable with specific notations of the victim\u2019s initials on them; and (2) it cannot be concluded that a different result would have been reached if this testimony had been admitted.\nAppeal by Defendant from judgment entered 20 March 2007 by Judge Frank R. Brown in Wilson County Superior Court. Heard in the Court of Appeals 16 January 2008.\nAttorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State.\nParish & Cooke, by James R. Parish for Defendant-Appellant." }, "file_name": "0562-01", "first_page_order": 592, "last_page_order": 600 }