State v. BaconÂ, 254 N.C. App. 463

Background

On Dec. 4, 2013, April Faison’s home was burglarized; a DVR surveillance video (face visible) showed the intruder removing items including a flatscreen TV, PlayStation 3 gaming system, laptop, camera, and two gold earrings. The stolen items were not recovered.
Ms. Faison transported the DVR to the sheriff’s office; detectives attempted to view it but could not locate the video there. Ms. Faison and her daughter, Ashley Colson, later identified defendant Jawanz Bacon from photos and reported seeing him near the house; a photo lineup (administered by an uninvolved officer) produced positive IDs.
Bacon was indicted for breaking/entering and felonious larceny; the larceny count alleged all items were the property of Ms. Faison and stated a total value of $1,210.00. At trial the State conceded some items belonged to others (laptop to adult daughter; camera and gaming system to a friend).
Defense sought to call an alibi witness (grandfather Jimmy Bacon) but failed to timely disclose him as required by discovery rules; the trial court excluded that testimony. The court instructed the jury only on felonious larceny based on value > $1,000 (and on misdemeanor larceny as a lesser-included offense), not on felony larceny based on breaking/entering. Jury convicted Bacon of felony breaking/entering and felonious larceny.
On appeal the Court of Appeals (McGee, C.J.) addressed: (1) alleged fatal variance between indictment ownership allegations and trial proof; (2) sufficiency of evidence on value to support felonious larceny; and (3) whether exclusion of the alibi witness was an abuse of discretion.

Issues

Issue	State's Argument	Bacon's Argument	Held
Fatal variance between indictment (alleging Ms. Faison owned all listed items) and proof (some items belonged to others)	Indictment properly charged larceny and any misstatements about some items are surplusage; the indictment still alleges the essential elements for the items actually owned by Ms. Faison	Variance is fatal because proof did not correspond to ownership allegations for several listed items, requiring dismissal of larceny count	Court: Partially agree — there was a fatal variance as to the laptop, camera, and gaming system (not shown to be Ms. Faison’s or that she had a special property interest). But allegations as to TV and earrings (owned by Ms. Faison) were sufficient; misstatements as to other items were surplusage and do not require dismissal of the entire count.
Sufficiency of evidence on value to support felony larceny (> $1,000)	Jury may infer value from the nature of the items; specific value proof not required when items’ nature supports value finding	No evidence presented on value of TV and earrings; jury cannot reasonably assign combined value over $1,000 without evidentiary basis	Court: State failed to prove value element. Because jury was instructed only on the value theory (not breaking/entering theory), felonious larceny conviction must be vacated; remanded for judgment and resentencing on misdemeanor larceny.
Exclusion of alibi witness (sanction for late disclosure)	Exclusion was a permissible discovery sanction given lack of timely notice and the witness’s vague, unreliable testimony	Exclusion was an abuse of discretion and deprived Bacon of critical alibi evidence	Court: No abuse of discretion. Testimony was vague, contradicted by record (timing inconsistent with published reports and arrest), and minimally material; exclusion therefore upheld.
Ineffective assistance claim relating to counsel’s handling of the alibi witness	N/A	Counsel’s failures warrant reversal	Court: Premature on direct appeal and, in any event, fails on the merits given lack of prejudice from excluded testimony.

Key Cases Cited

State v. Seelig, 226 N.C. App. 147 (2013) (variance between indictment and proof can be fatal but immaterial averments may be surplusage)
State v. Eppley, 282 N.C. 249 (1972) (no special property interest found where defendant named in indictment did not have ownership or bailee interest in stolen item)
State v. Salters, 137 N.C. App. 553 (2000) (parent may have special custodial interest in minor child’s property stored in parent’s residence; caretaker generally does not)
State v. Schultz, 294 N.C. 281 (1978) (indictment must allege owner or someone with special property interest; variance as to owner is fatal)
State v. Jolly, 297 N.C. 121 (1979) (jury verdict for greater offense may be treated as verdict on lesser-included offense when elements are necessarily found)
State v. Allen, 222 N.C. App. 707 (2012) (review of discovery-sanction decisions is for abuse of discretion standard)
State v. Snead, 239 N.C. App. 439 (2015) (vacatur/remand to enter judgment on lesser-included offense appropriate when evidence insufficient as to greater offense but supports lesser)
State v. Braswell, 312 N.C. 553 (1985) (standard for ineffective-assistance claim requires showing both deficient performance and prejudice)