{ "id": 8526271, "name": "STATE OF NORTH CAROLINA v. LORAN RICHARD CHRISTOPHER, JR.", "name_abbreviation": "State v. Christopher", "decision_date": "1982-09-21", "docket_number": "No. 8125SC1358", "first_page": "788", "last_page": "795", "citations": [ { "type": "official", "cite": "58 N.C. App. 788" } ], "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": "265 S.E. 2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "222-23" } ], "opinion_index": 0 }, { "cite": "300 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559830 ], "year": 1980, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0105-01" ] }, { "cite": "294 S.E. 2d 216", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570147, 8570248, 8570193, 8570133, 8570169 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0389-02", "/nc/306/0389-05", "/nc/306/0389-04", "/nc/306/0389-01", "/nc/306/0389-03" ] }, { "cite": "291 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "57 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521994 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/57/0071-01" ] }, { "cite": "244 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561881 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0147-01" ] }, { "cite": "220 S.E. 2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "526", "parenthetical": "emphasis original" } ], "opinion_index": 0 }, { "cite": "288 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570429 ], "year": 1975, "pin_cites": [ { "page": "615-16", "parenthetical": "emphasis original" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0608-01" ] }, { "cite": "237 S.E. 2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564832, 8564802, 8564871, 8564904, 8564779 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0363-03", "/nc/293/0363-02", "/nc/293/0363-04", "/nc/293/0363-05", "/nc/293/0363-01" ] }, { "cite": "236 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551820 ], "year": 1977, "pin_cites": [ { "page": "653-54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0647-01" ] }, { "cite": "122 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "255 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571608 ], "year": 1961, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0583-01" ] }, { "cite": "283 S.E. 2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565409, 8565362, 8565396, 8565432, 8565337 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0237-04", "/nc/301/0237-02", "/nc/301/0237-03", "/nc/301/0237-05", "/nc/301/0237-01" ] }, { "cite": "267 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "47 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550013 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/47/0446-01" ] }, { "cite": "154 S.E. 2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567377 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0286-01" ] }, { "cite": "83 S.E. 772", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1914, "pin_cites": [ { "page": "774" } ], "opinion_index": 0 }, { "cite": "168 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658301 ], "year": 1914, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0208-01" ] } ], "analysis": { "cardinality": 634, "char_count": 15778, "ocr_confidence": 0.771, "pagerank": { "raw": 2.5961689552170427e-07, "percentile": 0.8190759384041308 }, "sha256": "f68e2ccfe7b2dbd36ea632c8f94e7fe635f7b920df6bda9a4bde246546b00dc7", "simhash": "1:893dd0da577386db", "word_count": 2612 }, "last_updated": "2023-07-14T18:20:52.636886+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MARTIN (Harry C.) concurred prior to 3 August 1982.", "Judge BECTON concurs." ], "parties": [ "STATE OF NORTH CAROLINA v. LORAN RICHARD CHRISTOPHER, JR." ], "opinions": [ { "text": "HILL, Judge.\nDefendant contends that error occurred in his trial with respect to both charges. We conclude that the trial court did commit error in connection with the receiving charge but find no merit in defendant\u2019s assignments of error in the conspiracy case.\nDefendant contends first that there was a fatal variance between the crimes charged in the bills of indictment and the proof of the same with respect to ownership and time.\nThe indictments allege ownership of the hams in \u201cMom (n) Pops Smokehouse, Inc., a corporation, located in Claremont, North Carolina.\u201d At trial the owner of the stolen hams was referred to by various witnesses as Mom & Pop\u2019s Incorporated, Mom & Pop\u2019s, Mom & Pop\u2019s Ham House and Mom & Pop\u2019s Smoke House in Claremont. The owner of the hams was further identified as a wholly owned subsidiary of Western Steer Mom & Pop\u2019s, Incorporated. The only variance between the indictment and proof was the omission of any reference to \u201cMom (n) Pops Smokehouse, Inc.,\u201d as alleged in the indictment. Nevertheless, the testimony at trial sufficiently identified the owner of the stolen hams to be the same entity referred to in the indictments and sufficiently established the owner to be a legal entity capable of owning property. Although \u201cevidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense,\u201d 7 Strong\u2019s N.C. Index 3rd, Indictment and Warrant \u00a7 17, p. 162, \u201c \u2018[a] variance will not result where the allegations and proof, although variant, are of the same legal significance.\u2019 [Citations omitted.]\u201d State v. Craft, 168 N.C. 208, 212, 83 S.E. 772, 774 (1914). Defendant has not shown that he was misled by the variance or that, having been informed of the charges against him, he was hampered in any way in presenting his defense. See State v. Martin, 270 N.C. 286, 154 S.E. 2d 96 (1967); State v. Currie, 47 N.C. App. 446, 267 S.E. 2d 390, cert. denied, 301 N.C. 237, 283 S.E. 2d 134 (1980).\nThe indictments further allege that defendant conspired to commit felonious larceny and feloniously received stolen goods \u201con or about the 12th day of December, 1980.\u201d At trial, the evidence disclosed only that sometime before and during December defendant had several conversations with Johnny Mc-Cracken concerning the hams and that defendant received the stolen hams on a Sunday night in late December, after Christmas. Defendant argues that this discrepancy between the time named in the indictments and the time shown by State\u2019s evidence constituted a fatal variance requiring dismissal of the charges. We agree with respect to the receiving charge, but not the conspiracy charge.\n\u201cWhere time is not of the essence of the offense charged . . . a discrepancy between the date alleged in the indictment and the date shown by the State\u2019s evidence is ordinarily not fatal. [Citations omitted.] \u2018But this salutary rule, preventing a defendant who does not rely on time as a defense from using a discrepancy between the time named in the bill and the time shown by the evidence for the State, cannot be used to ensnare a defendant and thereby deprive him of an opportunity to adequately present his defense.\u2019 State v. Whittemore, 255 N.C. 583, 592, 122 S.E. 2d 396, 403 (1961).\u201d State v. Locklear, 33 N.C. App. 647, 653-54, 236 S.E. 2d 376, 380, discr. rev. denied, 293 N.C. 363, 237 S.E. 2d 851 (1977).\nIn the present case, defendant clearly relied upon the date charged in the indictment by presenting an alibi defense for that date. Although he also presented testimony as to his whereabouts on the following weekend, this evidence was apparently introduced to bolster his alibi for the date charged in the indictment. Cf State v. Currie, supra (the defendant presented alibi evidence for the date charged in the indictment and the date shown by the State\u2019s evidence); State v. Locklear, supra (the defendant presented alibi evidence relating to neither the date charged in the indictment nor the date shown by the State\u2019s evidence). On the facts of this case, the introduction of evidence by State tending to show that the receiving offense occurred on a date other than the one charged in the indictment tended to \u201censnare [the] defendant and thereby deprive him of an opportunity to adequately present his defense\u201d and constituted a fatal variance between the indictment and the proof. The verdict on the receiving charge must therefore be vacated.\nFurther error occurred on the receiving charge when the court instructed the jury that defendant could be convicted of that charge if the jury found that he had committed the offense \u201con or about December the 14th or the latter part of December, 1980.\u201d While not required to charge on the date of the offense, a court which does so must charge on the date as shown by the evidence. See State v. Currie, supra. The evidence in the present case shows that, if defendant received the stolen hams, he did so in late December, after Christmas. There is no evidence whatsoever that defendant received the hams on 14 December 1980. The court\u2019s instruction permitted the jury to disregard the evidence as to when the offense occurred.\nAlthough the court gave the same instruction on the conspiracy charge, it did not constitute error because the evidence at trial showed that the conspiracy commenced prior to December 1980 and continued through the 14th until late December. For the same reason, there was no fatal variance between the date alleged in the conspiracy indictment and the date shown by State\u2019s evidence.\nNor is defendant entitled to dismissal of the conspiracy charge because of insufficient evidence, as he contends.\nA criminal conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means. [Citation omitted.] To constitute a conspiracy it is not necessary that the parties should have come together and agreed in express terms to unite for a common object: \u201c \u2018A mutual, implied understanding is sufficient, so far as the combination or conspiracy is concerned, to constitute the offense.\u2019 \u201d [Citations omitted.] ... As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed.\nState v. Bindyke, 288 N.C. 608, 615-16, 220 S.E. 2d 521, 526 (1975) (emphasis original). Accord State v. Abernathy, 295 N.C. 147, 244 S.E. 2d 373 (1978).\nState\u2019s evidence in the present case tended to show that defendant solicited McCracken to steal ham from his employer, that defendant received the stolen ham from McCracken and that defendant paid McCracken substantially less than the true value of the ham. Defendant argues that because there was no evidence of an express request by defendant that McCracken steal the ham, there was insufficient proof of a conspiracy to do an unlawful act. As previously stated, however, an express agreement need not be shown. Defendant\u2019s statements to McCracken that he \u201cwas sitting on a gold mine\u201d and that he \u201ccould get rid of some ham\u201d if McCracken \u201ccould get some ham,\u201d considered with the subsequent dealings between defendant and McCracken with regard to the ham, were sufficient for the jury to infer \u201ca mutual, implied understanding\u201d between defendant and McCracken \u201cto do an unlawful act.\u201d See State v. Jackson and State v. Marshall, 57 N.C. App. 71, 291 S.E. 2d 190, cert. denied, 306 N.C. 389, 294 S.E. 2d 216 (1982).\nDefendant also assigns error to the court\u2019s charge on conspiracy. He concedes that the court correctly charged as to the law of conspiracy but contends that the court failed to correctly apply to the evidence presented the element of conspiracy which requires that the defendant and his co-conspirator intended at the time their agreement to commit the larceny was made that it would be carried out. Our review of the charge reveals no prejudicial error. On the element of intent, the court required the jury to find that \u201cat the time of the taking the defendant and Johnny McCracken intended to deprive Mom & Pop\u2019s Ham House of its use permanently pursuant to the agreement. . . .\u201d The Court had previously informed the jury that State was required to prove that defendant and another person intended that their agreement to commit larceny be carried out \u201cat the time it was made.\u201d When construed as a whole, the charge correctly required a finding that at the time of his agreement with McCracken, defendant intended for McCracken to commit larceny from his employer pursuant to the agreement.\nAlthough we have vacated the verdict on the receiving charge as a result of error in defendant\u2019s trial, the judgment appealed from need not be disturbed.\nWhere the jury renders a verdict of guilty on each count of a bill of indictment, an error in the trial or in the charge of the court as to one count is cured by the verdict on the other count where the offenses which are charged are of the same grade and punishable alike, only one sentence is imposed, and the error relating to one count does not affect the verdict on the other.\nState v. Daniels, 300 N.C. 105, 115, 265 S.E. 2d 217, 222-23 (1980). Here, the court consolidated the conspiracy and receiving charges for purposes of judgment and imposed a sentence of three years imprisonment, with all but 90 days suspended. Conspiracy to commit larceny and receiving stolen goods are both felonies for which no specific punishment is prescribed by statute. As such, they are both punishable by fine, by imprisonment not exceeding ten years, or both. G.S. 14-2. The single sentence imposed was within the parameters of the punishment authorized for the crime of conspiracy to commit larceny.\nIn the judgment entered, we find\nNo error.\nJudge MARTIN (Harry C.) concurred prior to 3 August 1982.\nJudge BECTON concurs.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Richard L. Griffin, for the State.", "Sigmon, Clark and Mackie, by Jeffrey T. Mackie, for defendant-appe llant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LORAN RICHARD CHRISTOPHER, JR.\nNo. 8125SC1358\n(Filed 21 September 1982)\n1. Indictment and Warrant \u00a7 17.4\u2014 variance between averment and proof \u2014 ownership\nDefendant failed to show that he was misled by a variance between the indictment and proof at trial or that he was hampered in any way in presenting his defense where the indictment alleged ownership of hams in \u201cMom (n) Pops Smokehouse, Inc., a corporation, located in Claremont, North Carolina,\u201d and at trial the owner of the stolen hams was referred to by various witnesses as Mom & Pop\u2019s Incorporated, Mom & Pop\u2019s, Mom & Pop\u2019s Ham House and Mom & Pop\u2019s Smokehouse in Claremont.\n2. Indictment and Warrant \u00a7 17.2\u2014 conspiracy to commit felonious larceny and feloniously receiving stolen goods \u2014 variance between date alleged in indictment and proved at trial \u2014 prejudicial as to receiving charge\nWhere indictments alleged that defendant conspired to commit felonious larceny and feloniously received stolen goods \u201con or about the 12th day of December, 1980,\u201d and at trial, the evidence disclosed that sometime before and during December defendant had several conversations with another person concerning hams and that defendant received stolen hams on a Sunday night in late December, after Christmas, the discrepancy between the date alleged in the indictment and the date shown by the State\u2019s evidence was fatal as to the receiving charge. Defendant clearly relied upon the date charged in the indictment by presenting an alibi defense for that date, and introducing evidence tending to show that the receiving charge occurred on a date other than the one charged in the indictment tended to \u201censnare [the] defendant and thereby deprive him of an opportunity to adequately present his defense.\u201d Since there was evidence that the conspiracy commenced prior to December 1980 and continued through the 14th until late December, there was no fatal variance between the date alleged in the conspiracy indictment and the date shown by State\u2019s evidence.\n3. Conspiracy \u00a7 6\u2014 criminal conspiracy \u2014 sufficiency of evidence\nEvidence which tended to show that defendant solicited a person to steal ham from his employer, that defendant received the stolen ham from the person and that defendant paid the person substantially less than the true value of the ham, along with statements to the person that he \u201cwas sitting on a gold mine\" and that he \u201ccould get rid of some ham\u201d if the person \u201ccould get some ham,\u201d was sufficient for the jury to infer \u201ca mutual, implied understanding\u201d between defendant and the person \u201cto do an unlawful act.\u201d\n4. Conspiracy \u00a7 7\u2014 criminal conspiracy \u2014 instructions proper\nThe trial court correctly applied the law of conspiracy to the evidence presented on the element of conspiracy which requires that the defendant and his co-conspirator intended at the time their agreement to commit larceny was made that it would be carried out.\n5. Criminal Law \u00a7 171.1\u2014 defendant convicted of two charges \u2014one conviction vacated \u2014 single sentence imposed \u2014 judgment appealed from not disturbed\nAlthough the Court vacated a verdict on a receiving charge as a result of error in defendant\u2019s trial, the judgment appealed from was not disturbed since the trial court consolidated the conspiracy and receiving charges for purposes of judgment and imposed a sentence which was within the parameters of the punishment authorized for the crime of conspiracy to commit larceny. 6.S. 14-2.\nAppeal by defendant from Cornelius, Judge. Judgment entered 13 August 1981 in Superior Court, CATAWBA County. Heard in the Court of Appeals 7 June 1982.\nDefendant appeals his conviction of felonious conspiracy to commit larceny and of feloniously receiving stolen goods.\nAt trial, Johnny McCracken testified that in December of 1980, he was employed as a truck driver for Mom & Pop\u2019s Smoke House, a business which bought, cured and processed country hams. He had known the defendant for seven or eight years.\nPrior to December of 1980 defendant had remarked several times that McCracken \u201cwas sitting on a gold mine.\u201d He asked Mc-Cracken if he \u201ccould get some ham;\u201d that he \u201ccould get rid of some ham\u201d if McCracken could get it. McCracken testified that he stole a pallet containing 110 cases of center ham slices while loading a truck in December. He delivered the ham to his house because \u201c[t]his is where Mr. Christopher was to pick it up.\u201d Defendant picked up the ham on a Sunday night in late December, after Christmas, loading it into his station wagon. \u201cThere was talk of splitting the profit,\u201d but defendant later gave McCracken an old Chevrolet car and $50.\nRay Isenhower, plant manager of Mom & Pop\u2019s Smoke House, testified that in mid-December he suspected that a substantial amount of ham had disappeared and began taking inventory in January. The inventory showed a shortage of 249 cases of \u201ccenters\u201d. Isenhower also testified that Mom & Pop\u2019s Smoke House is a wholly owned subsidiary of Western Steer Mom & Pop\u2019s, Incorporated.\nTom McCall testified that he knew the defendant as an employee of a brokerage company and that prior to December of 1980 he had purchased food items from defendant for his discount food store. Sometime in December or January, on three different occasions, he purchased from defendant a total of 30 or 40 cases of pre-priced packaged sugar cured Mom & Pop\u2019s ham. \u201c[I]t was supposed to be overrun merchandise or mis-shipped merchandise.\u201d He received a receipt for the ham in February or March, but it was in a \u201cficticious name\u201d.\nDefendant denied selling ham to Tom McCall. He offered an alibi witness who stated that defendant was in Kingsport, Tennessee, with her on the weekend of 12 December 1980. She also testified that she was with the defendant in Hickory, North Carolina the following weekend.\nAttorney General Edmisten, by Assistant Attorney General Richard L. Griffin, for the State.\nSigmon, Clark and Mackie, by Jeffrey T. Mackie, for defendant-appe llant." }, "file_name": "0788-01", "first_page_order": 820, "last_page_order": 827 }