Dеfendant appeals from multiple felony convictions pursuant to a jury trial in Wake County Superior Court. After careful review, we find no error in part, vacate in part, and remand for resentencing.
Background
Juan Pablo Gayton-Barbosa (“defendant”) was brought to trial on 23 January 2008 on the following charges: 1) assault with a deadly weapon with the intent to kill inflicting serious injury through use of a handgun; 2) assault with a deadly weapon inflicting serious injury through use of a baseball bat; 3) felonious breaking or entering; 4) fеlonious larceny; 5) first degree kidnapping; and 6) possession of a firearm by a convicted felon. Defendant was convicted of all charges on 25 January 2008. Defendant now appeals.
At trial, the State’s evidence tended to show that on 6 December 2004, defendant unlawfully entered the home of his former employer, Brandi Leggett (“Leggett”), where she resided with Natasha Minear (“Minear”) and Minear’s daughter, Madeline Minear (“Madeline”). While defendant waited in the house alоne, Minear and Madeline returned home in the early evening. As Minear approached her closed bedroom door, defendant emerged with a bat and a gun, screaming for Leggett. Defendant began striking Minear in the head with a baseball bat. Minear yelled for her daughter to get out of the house and run. Madeline ran to the house of the nearest neighbor, Susan Schaler (“Schaler”), approximately a quarter mile away and told Schaler to call the police.
During the beating, Minear was able to break away from defendant and ran out of the house. Defendant caught her at the bottom of the porch steps, turned her around, and shot her. 1 Minear lost consciousness for an unspecified period of time, and when she regained consciousness, she made her way to Schaler’s house. Minear estimated that the attack lasted fifteen minutes.
Emergency services and law enforcement arrived and transported Minear to the hospital, where she had exploratory surgery to ascertain internal damage from the gunshot wound. Minear remained in the hospital for two weeks.
There was no evidence of a forced entry into the house; however, Madeline’s baseball bat was missing as well as Leggett’s Smith and Wesson .38 caliber revolver. 2 Arrest warrants were issued for defendant, but he was not apprehended for two years. On 11 June 2007, Raleigh police officers stopped defendant’s car due to lack of an operator’s license. He was then arrested and served with the outstanding warrants.
At trial, defendant testified that he and Leggett had a personal and sexual relationship. He claimed that Minear was jealous of that relationship. Defendant stated that on 6 December 2004, he went to the women’s home to give Leggett money for the purpose of renting equipment to clear land belonging to Leggett. Defendant claimed that he was on the property when he saw Minear and Madeline go inside the house.' He then entered the house and asked Minear where he could find Leggett. Minear then told defendant that Leggett would be back in thirty minutes, and then she went into her bedroom. She returned with a gun and told defendant that he could no longer be with Leggett. Defendant then picked up a baseball bat and hit Minear to force her to drop her weapon. The two struggled over the gun and it discharged twice. The struggle continued outside; defendant struсk Minear again with the bat, and the gun discharged. Defendant then ran away. Defendant stated that because he was an undocumented alien, he was afraid of deportation. He subsequently changed his name and continued to work construction in Raleigh until he was apprehended by police.
I.
Defendant first argues that the conviction of felonious larceny of the gun used in the attack should be vacated because the indictment erroneously alleged that the gun belonged to Minear, while the evidence at trial tended to show that the gun belonged to Leggett, though it was kept in a bedroom occupied by both women. Defendant did not object to the indictment at trial, nor did he make a motion to dismiss at the close of evidence based on a fatal variance in the indictment. 3
“The issue of variance between the indictment and proof is properly raised by a motion to dismiss” and a defendant “waive [s] his right to raise this issue by failing to raise the issue at trial.”
State v. Baldwin,
Although defendant challenged the sufficiency of the evidence to support a felonious larceny conviction at the end of the State’s evidence on the grounds that there was no evidence that the firearm in question was not returned to. the owner, he never renewed this argument or advanced any other challengе to the felonious larceny charge at trial. As a result, by failing to challenge the sufficiency of the evidence to support a larceny conviction at the end of all of the evidence or to argue that the State’s proof at trial varied from the allegations of the felonious larceny indictment returned against him in File No. 07 CRS 41987, defendant waived his right to have this Court consider his variance claim on appeal. See N.C.R. App. P. 10(b)(1) (“In order to preserve a question fоr appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.”); N.C.R. App. P. 10(b)(3) (A “defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, аt trial.”). Thus, the next issue that needs to be addressed is the extent, if any, to which the Court is entitled to address this variance-based challenge to defendant’s felonious larceny conviction on the merits despite the absence of a contemporaneous objection at trial.
In
State v. Brown,
First, the Supreme Court’s decision in
Brown
suggests that fatal variances of the type present here are sufficiently serious to justify the exercise of our authority under N.C.R. App. P. 2. Such a result makes sense given the important notice and double jeopardy protections provided by criminal pleadings such as indictments. Secondly, a variance-based challenge is, essentially, a contention that the evidence is insufficient to support a conviction. The Supreme Court and this Court have regularly invoked N.C.R. App. P. 2 in order to address challenges to the sufficiency of the evidence to support a conviction.
State v. Booher,
Finally, it is difficult to contemplate a more “manifest injustice’’ to a convicted defendant than that which would result from sustaining a conviction that lacked adequate evidentiary support, particularly when leaving the error in question unaddressed has double jeopardy implications. Thus, given the peculiar facts of this case, it is appropriate to address defendant’s variance-based challenge on the merits. 4
According to well-established North Carolina law, “the indictment in a larceny case must allege a person who has a property interest in the property stolen and that the State must prove that that person has ownership, meaning title tо the property or some special property interest.”
State v. Greene,
However, if it can be shown that the person named in the indictment, though not the actual owner of the stolen item, had a “special property interest” in the item, then the defect in the indictment will not be fatal.
State v. Craycraft,
Our Courts have evaluated circumstances in which a special property interest has been established.
See e.g. State v. Adams,
Conversely, our Courts have established situations in which a special property interest does not exist.
See e.g. State v. Eppley,
In the case sub judice, the evidence tended to show that Leggett owned the gun that was stolen by defendant and the home from which it was stolen. Minear and Leggett lived together and shared the bedroom where the gun was kept. Based upon these facts, we conclude that Minear did not have a special property interest in thе gun. While it is arguable that Minear was in shared possession of the gun, she did not have exclusive possession or control of the gun as in seen Carr, nor was she a custodian or bailee of the gun. Minear had no shared property rights, as seen between parents and children or between spouses. Accordingly, we must vacate the larceny conviction and remand for resentencing.
II.
Next, defendant assigns error to the following jury instruction with regard to the crime of breaking and/or entering: “ [fjirst, that there was either a breaking, breaking a window, or an entry.
Entering the building without the authorization of the owner would be an entry."
(Emphasis added). Specifically, defendant contends that the last sentence of this instruction expressed the trial court’s opinion that the entry element had been satisfied. Defendant did not object to this instruction at trial and requests a plain error review of this assignment of error. “ ‘[T]he plain error rule ... is always to be applied cautiously and only in the еxceptional case where, after reviewing the entire record, it can be said the claimed error is a
fundamental
error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done’ . . . .”
State v. Odom,
We find there was no error, much less plain error, in the trial court’s instruction. The trial court made a correct statement of law that unauthorized entry into the home of another satisfies the entry requirement under N.C. Gen. Stat. § 14-54(a) (2007).
See State v. Perkins,
Because we disagree with defendant’s contention that the trial court gave an opinion as to the satisfaction of the breaking or entering element of the crime, this assignment of error is without merit.
III.
Defendant further argues that, with regard to the charge of assault with a deadly weapon with intent to kill inflicting serious injury pursuant to N.C. Gen. Stat. § 14~32(a) (2007), the following instruction was erroneous: “[a]nd, third, that the defendant inflicted serious injury upon Natasha Minear. Two gunshot wounds to the [chest] as described in this case would be a serious injury.” Defendant raises two issues with this assignment of error: 1) whether the trial court erred in stating that there were “two gunshot wounds,” when there was conflicting evidence at trial as to whether Minear was shot once or twice; and 2) whether the trial court erroneously stated that the wounds Minear suffered constituted a serious injury.
5
Defendant did not object tо the instruction at trial, and therefore, the standard of review is plain error.
Odom,
A. Number of Gunshot Wounds
With regard to the first issue, Minear testified that she was shot twice (one bullet passed through her body and the other lodged in her hip), and the prosecution presented to the jury Minear’s undergarment, which contained two bullet holes. The trauma surgeon who treated Minear upon her arrival at the hospital testified that Minear was shot once. He based this belief on the trajectory of the bullet that enterеd her body, though he qualified this statement by saying that he was a clinician and not a forensic pathologist. Defendant testified that the gun discharged multiple times during the altercation with Minear.
Though there was conflicting evidence as to how many times Minear was shot, the State presented Minear’s testimony as well as illustrative evidence that defendant shot Minear twice. We find this evidence to be competent and that it supports the trial court’s assertion that “[t]wo gunshot wounds to the [сhest]
as described in this case
would be a serious injury.” (Emphasis added).
See State v. Tucker,
Furthermore, prior to its instruction on assault with a deadly weapon with intent to kill inflicting serious injury, the trial court instructed the jury, “[y]ou are.the sole judges of the credibility of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all or any part or none what have [sic] a witness has said on the stand.” The jury as the finder of fact was therefore charged with weighing the evidence presented, determining how many times Minear was shot, and deciding whether defendant’s actions justified a conviction of the crime charged.
B. Serious Injury
With regard to the second issue, “[w]hether serious injury has been inflicted must be determined according to the particular facts of each case and is a question the jury must answer under proper instruction.”
State v. Marshall,
In the present case, although there was conflicting evidence regarding the number of gunshot.wounds, we find that reasonable minds could not differ as to the serious nature of Minear’s injuries. Minear was shot, underwent exploratory surgery, spent two weeks in the hospital, missed two months of work, and suffered “horrible pain.”
Because we do not find that the trial court gave an improper opinion as to the number of times Minear was shot, nor do we find error in the trial court’s classification of Minear’s injuries as serious, this assignment of error is without merit.
IV.
Defendant next contends that the trial court erred in refusing to grant his motion to set aside the verdict with regard to the first degree kidnapping conviction because defendant’s restraint of Minear was inherent to the felonious assaults charged. Defendant did not move to dismiss this charge at the close of all of the evidence at trial. Our appellate rules state, “if a defendant fails to move to dismiss the action or for judgment as in case of nonsuit at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.” N.C.R. App. P. 10(b)(3). However, pursuant to N.C.R. App. P. 2, we will hear the merits of defendant’s claim despite the rule violation because defendant also argues ineffective assistance of counsel based on counsel’s failure to make the proper motion to dismiss.
“The standard of review of a trial court’s denial of a mоtion to set aside a verdict for lack of substantial evidence is the same as reviewing its denial of a motion to dismiss, i.e., whether there is substantial evidence of each essential element of the crime.”
State v. Duncan,
In North Carolina, to be convicted of the crime of kidnapping, the perpetrator must “unlawfully confine,
restrain,
or remove from one place to another” the person being kidnapped. N.C. Gen. Stat. § 14-39(a) (2007) (emphasis added). According to our Supreme Court, a restraint for purposes of a kidnapping conviction must be “separate and apart from that whicih is inherent in the commission of the other felony.”
State v. Fulcher,
Here, defendant kept Minear from leaving her house by repeatedly striking her with a bat and questioning her about Leggett. When she was able to escape, he chased her, grabbed her, and shot her. Detaining Minear in her home and then again outside was not necessary to effectuate the assaults charged. These acts were committed “separate and apart from that which is inherent in the commission of the other felony.”
Id.; see also State v. Romero,
V.
Defendant’s final argument is that he was provided ineffective assistance of counsel because his attorney failed to make a motion to dismiss the kidnapping charge at the close of all the evidence.
To prevail on an ineffective assistance of counsel claim:
“First, the defendant must show that counsel’s performance was deficient. Thisrequires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the defiсient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
State v. Braswell,
As discussed supra, the evidence was sufficient to support a kidnapping conviction, therefore defendant was not prejudiced by counsel’s failure to make a motion to dismiss at the close of evidence. Because defendant has not shown counsel’s assistance to be constitutionally inadequate, this assignment of еrror is without merit.
Conclusion
Due to the fatal defect in the larceny indictment, we vacate' the conviction and remand for resentencing. As to defendant’s remaining arguments, we find no error.
No error in part, vacate in part, and remand for resentencing.
Notes
. Minear testified that she was shot twice, but the emergency room physician testified that she was shot once.
. Defendant was subsequently charged with larceny of the handgun.
. We note that if there is a fatal defect on the face оf the indictment, as opposed to a fatal variance between the indictment and evidence presented at trial, a defendant may raise that issue for the first time on appeal.
State v. Wilson,
. In reaching this conclusion, we recognize that the evidence of defendant’s guilt of felonious larceny of Leggett’s firearm was substantial, that defendant’s felonious larceny conviction was consolidated for judgment with his brеaking or entering and first degree kidnapping convictions, and that the sentence that the trial court imposed upon defendant for these three consolidated convictions was at the absolute low end of the presumptive range for an individual convicted of a Class C felony with defendant’s prior record level. However, given that the record suggests that defendant may be able to present evidence (as compared to the argument of counsel) thаt certain mitigating factors are present and that the trial court would have the option of making the sentence imposed upon defendant in these consolidated cases run concurrently with the sentences imposed as a result of defendant’s other convictions on re-sentencing, we are unwilling to conclude that there is no reasonable possibility that a re-sentencing in the consolidated cases would not result in a different outcome on remand. In addition, the additional consequences that might flow from the mere fact that defendant was convicted of felonious larceny, such as the potential use of this conviction to impeach defendant’s credibility in subsequent judicial proceedings, N.C. Gen. Stat.. § 8C-1, Rule 609 (2007), also mitigate in favor of exercising this Court’s authority under N.C.R. App. R 2 in this instance.
. Although defendant fails to sufficiently argue the latter issue, we will address it since defendant assigned error to that portion of the jury instruction pertaining to the serious injury element.