                             NO. COA13-886

                   NORTH CAROLINA COURT OF APPEALS

                        Filed: 4 February 2014


STATE OF NORTH CAROLINA

     v.                              Durham County
                                     No. 12 CRS 57142
CHRISTINE RENA CHAMBERLAIN


     Appeal by Defendant from judgment entered 26 March 2013 by

Judge Allen Baddour in Durham County Superior Court. Heard in the

Court of Appeals 11 December 2013.


     Attorney General Roy Cooper, by Assistant Attorney General
     Carolyn McLain, for the State.

     Peter Wood for Defendant.


     STEPHENS, Judge.


                 Evidence and Procedural History

     On 31 December 2011, the district court in Durham County

issued a misdemeanor criminal summons (“First Summons”) asserting

that probable cause was present to believe that Christine Rena

Chamberlain (“Defendant”) committed one count of injury to real

property. According to the summons, Anthony Waraksa (“Waraksa”),

the complainant, alleged that Defendant destroyed “THREE LIGUSTRUM
                               -2-
TREES” located on his property on 5 April 2011. The case was later

dismissed by the district court due to a “fatal variance.”1

     Following dismissal, on 22 July 2012, the district court

issued a second misdemeanor criminal summons (“Second Summons”)

alleging probable cause to believe that Defendant had committed

two counts of injury to real property. According to the Second

Summons, Waraksa alleged that Defendant had destroyed, respective

to the two counts charged, (1) “TREES, LAWN[,] AND FLOWERBEDS” and

(2) “THREE LIGUSTRUM SHRUBS,” both located on his property. This

allegedly occurred between 30 September 2010 and 22 February 2011.

The Second Summons is the origin of the judgment that is now under

review.

     After a trial on the Second Summons, the district court found

Defendant not guilty on the first count of injury to real property,

related to destruction of trees, lawn, and flowerbeds, and guilty

on the second count of injury to real property, related to the

destruction of the Ligustrum shrubs. Defendant gave written notice

of appeal to the Durham County Superior Court on 14 November 2012.




1 The court did not provide any more detail on the reason for its
dismissal. However, Defendant asserts in her brief, pursuant to
statements made by her trial counsel in the superior court trial,
that “Waraksa was apparently confused when he took out the first
warrant[ and] gave the wrong date to the magistrate.”
                                     -3-
       Beginning 25 March 2013, Defendant was tried before a jury in

superior court on the second count of injury to real property,

regarding the destruction of the shrubs. Defendant made a pre–

trial motion to dismiss that charge on double jeopardy grounds,

arguing    that    the   original   dismissal      in   the   district    court

constituted an acquittal for the allegedly offending conduct and

that she could not be re-tried for that conduct in superior court.

That motion was denied. The evidence presented at trial tended to

show the following:

       Defendant and her husband, James Chamberlain, live next to

Waraksa and his wife, Harriett Sander (“Sander”) in Durham, North

Carolina. They had a friendly relationship until April of 2009,

when   Defendant    published     information      communicated   to     her   by

Waraksa in confidence. At that point,               Waraksa broke      off the

friendship. The following year, in September of 2010, Defendant

installed a berm near the property line between their houses.

Believing that Defendant’s landscaping had encroached upon his

property line, Waraksa “repaired the encroachment” and planted a

line of Ligustrum shrubs on his side of the line. On 11 November

2010, Defendant left Waraksa a note asking him to refrain from

planting   “hedge[s].     .   .   until    [the]   dispute    [was]    resolved

regarding the property line.”
                                    -4-
      Waraksa testified that property lines in his subdivision “are

set out with embedded iron pipes.” Prior to planting the Ligustrum

shrubs,   Waraksa   had   his   property   surveyed,    and   the    surveyor

identified the corners of his lot based on those pipes. There was

no   testimony   that   Defendant   ever   had   the   property     surveyed.

Defendant and her husband nonetheless testified that Waraksa’s

shrubs were planted over the property line, on their property.

      On 22 February 2011, Sander observed that the Ligustrum shrubs

had been destroyed and saw Defendant walking away from the shrubs

with “huge scissors.” Later in the trial, Defendant admitted to

cutting the shrubs, knowing they belonged to Waraksa:

           [THE STATE:] Okay. It’s your testimony that
           you intended to remove the Ligustrum bushes
           that had been planted by Mr. Waraksa, is that
           right? You intended to remove them; that’s why
           you cut them down?

           [DEFENDANT:]    Right, yeah, they were on my
           property.

           [THE STATE:] Right.

           [DEFENDANT:] They were planted where I needed
           to fix the berm.

           [THE STATE:] And you chose to cut them off,
           right? Is that what you did; you cut them?

           [DEFENDANT:]    Yes, with a shovel.

           [THE STATE:] You knew . . . Waraksa had planted
           those bushes?
                                  -5-
            [DEFENDANT:] Well, yes, uh-huh.

     Defendant moved to dismiss the charges against her at the

close of the State’s evidence and at the close of all of the

evidence. Those motions were denied. After the presentation of

evidence, the jury found Defendant guilty of injury to real

property. Defendant appeals the judgment entered upon the jury’s

verdict.

                              Discussion

     On appeal, Defendant argues the trial court erred by (1)

denying Defendant’s motion to dismiss based on double jeopardy,

(2) denying Defendant’s motion to dismiss at the close of the

State’s evidence and again at the close of all the evidence because

the State did not present sufficient evidence to support the charge

of injury to real property, and (3) failing to “instruct the jury

properly”    in   response   to   a     question   posed   during   jury

deliberations. We find no error.

     I. Double Jeopardy

     In her first argument on appeal, Defendant contends that the

trial court erred in denying her pre–trial motion to dismiss on

double jeopardy grounds. In making that argument, Defendant notes

that Waraksa took out two different warrants for injury to real

property based on the exact same damage to the trees. Defendant
                                  -6-
also points out that the district court committed a clerical error

by keeping the incorrect date on the warrant, instead of amending

the warrant to reflect the correct date. As a result, Defendant

alleges that it was a violation of the prohibition against double

jeopardy for the district court to allow the State to proceed with

a second charge. Accordingly, Defendant contends that the superior

court erred in denying her motion to dismiss based upon the first

and second district court trials.2 We disagree.

     The doctrine of double jeopardy “provides that no person shall

be subject for the same offen[s]e to be twice put in jeopardy of

life or limb.” State v. Sparks, 182 N.C. App. 45, 47, 641 S.E.2d

339, 341 (2007) (citation and internal quotation marks omitted).

“[T]he   Double   Jeopardy   Clause   protects   against   (1)   a   second




2 We note that there is no substantial evidence in the record
regarding the nature of the fatal variance beyond (a) the fact of
its existence and (b) the district court’s dismissal of the
original charge against Defendant on that basis. The only other
discussion about the variance is counsel’s statement to the
superior court in Defendant’s pre-trial motion to dismiss
regarding Waraksa’s alleged confusion over the date of the offense.
However, “it is axiomatic that the arguments of counsel are not
evidence.” State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191,
193 (1996). Therefore, the only evidence properly before us in the
record is the handwritten note on the summons stating that the
case was dismissed due to a fatal variance, and we are limited to
that fact. See State v. Gillis, 158 N.C. App. 48, 55, 580 S.E.2d
32, 37-38 (2003) (citation omitted) (“[T]his Court is bound on
appeal by the record on appeal as certified and can judicially
know only what appears in it.”).
                                   -7-
prosecution for the same offense after acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple

punishments for the same offense.” State v. Rahaman, 202 N.C. App.

36, 40, 688 S.E.2d 58, 62 (2010) (citations and internal quotation

marks omitted). “[W]hen the trial court grants a defendant’s motion

to dismiss at the close of evidence, that ruling has the same

effect as a verdict of not guilty.” Id. at 43, 688 S.E.2d at 64;

see also N.C. Gen. Stat. § 15-173 (2013). “However, the 5th

Amendment right to be free from double jeopardy only attaches in

a   situation   where   the   motion   to   dismiss   is   granted   due   to

insufficiency of the evidence to support each element of the crime

charged.” Rahaman, 202 N.C. App. at 44, 688 S.E.2d at 64. Double

jeopardy does not preclude a retrial when a charge is dismissed

because there was a fatal variance between the proof and the

allegations in the charge. Id.; State v. Johnson, 9 N.C. App. 253,

175 S.E.2d 711 (1970). We review a trial court’s denial of a motion

to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).

                In Johnson, the indictment alleged that
           the defendant committed the crime of breaking
           and entering “a certain storehouse, shop,
           warehouse,   dwelling   house   and   building
           occupied by one Lloyd R. Montgomery, 648
           Swannanoa River Road, Asheville, N.C.” The
           evidence at trial tended to show that the
           defendant broke into “438 Swannanoa River Road
                                   -8-
            in Asheville which was occupied by one Elvira
            L. Montgomery, who was engaged in business
            under   the   name    of   ‘Cat   and   Fiddle
            Restaurant.’” The trial court granted the
            defendant’s motion to dismiss due to a fatal
            variance between the indictment and the
            evidence presented at trial. The State retried
            [the] defendant for the offense of breaking
            and entering, but upon an indictment that
            corresponded to the evidence. The defendant
            then appealed and asserted that his right to
            be free from double jeopardy had been
            violated. Our Supreme Court held that “a
            judgment of dismissal for whatever reason
            entered after a trial on the first indictment
            would not sustain a plea of former jeopardy
            when [the] defendant was brought to trial on
            the   charge    contained    in   the   second
            indictment.”

Rahaman, 202 N.C. App. at 44–45, 688 S.E.2d at 64–65 (citation

omitted).

     In this case, the two summonses pertain generally to the same

facts,   but   the   First   Summons   lists   the   date   of   offense   as

“04/05/2011” while the Second Summons lists the date of offense as

“9/30/2010 through 02/22/2011.” Pursuant to the record properly

before us, the district court granted Defendant’s motion to dismiss

due to a fatal variance between the First Summons and the proof at

trial, not due to insufficiency of the evidence.3           Therefore, the




3 Defendant admits that the district court dismissed the charge
for a fatal variance. Defendant also admits that the only evidence
of record shows the variance was between the date of offense in
the First Summons and the Second Summons.
                                -9-
State was permitted to retry Defendant because the Second Summons

corrected the dates of the offense. Accordingly, we hold that the

superior court did not violate the double jeopardy provisions of

the state and federal constitutions and did not err by denying

Defendant’s motion to dismiss. See also State v. Fraley, __ N.C.

App. __, 749 S.E.2d 111 (unpublished opinion), available at 2013

N.C. App. LEXIS 806 (“Double jeopardy does not preclude a retrial

when a charge is dismissed because there was a fatal variance

between the proof and the allegations in the charge.”).4

     II. Defendant’s Motion to Dismiss

     Second, Defendant argues that the trial court erred in denying

her motion to dismiss due to insufficiency of the evidence,

alleging that the State failed to present substantial evidence of

every element of the crime charged.

     The test to be applied in ruling on a defendant’s motion to

dismiss is whether the State has produced substantial evidence of

each and every element of the offense charged, or a lesser-included

offense, and substantial evidence that the defendant committed the

offense. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117

(1980).   “If   substantial   evidence   exists   supporting   [the]



4 While unpublished decisions are not binding upon this court, the
facts in Fraley are similar to those here, and we find the Court’s
reasoning to be especially persuasive.
                                      -10-
defendant’s guilt, the jury should be allowed to decide if the

defendant is guilty beyond a reasonable doubt.” State v. Fowler,

353 N.C. 599, 621, 548 S.E.2d 684, 700 (2001), cert. denied, 535

U.S. 939, 152 L. Ed. 2d 230 (2002).

     Substantial evidence is defined as “evidence from which a

rational finder of fact could find the fact to be proved beyond a

reasonable doubt.” State v. Davis, 130 N.C. App. 675, 678, 505

S.E.2d 138, 141 (1998). When ruling on a motion to dismiss, the

trial court must consider all the evidence in the light most

favorable to the State. Id. at 679, 505 S.E.2d at 141. “Any

contradictions or discrepancies arising from the evidence are

properly    left   for   the   jury   to     resolve   and   do   not   warrant

dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237

(1996).    The   trial   court’s   decision      as    to   whether   there   is

substantial evidence is a “question of law,” and, on appeal, we

review it de novo. State v. Bumgarner, 147 N.C. App. 409, 412, 556

S.E.2d 324, 327 (2001).

     Defendant was charged with violating N.C. Gen. Stat. § 14-

127, which provides as follows:

            Willful and wanton injury to real property.

            If any person shall willfully and wantonly
            damage, injure or destroy any real property
            whatsoever, either of a public or private
                                     -11-
            nature, [she] shall be guilty of a Class 1
            misdemeanor.

N.C. Gen. Stat. § 14-127 (2013). Defendant does not challenge the

sufficiency of the evidence to prove that she was the perpetrator

of   the   crimes.   Rather,   she   argues   that   the   State   presented

insufficient evidence as to her mental state. We disagree.

      Section 14-127 requires, as an essential element of the

offense, a showing that the person charged with violating the

statute “willfully” and “wantonly” caused the damage to real

property. The words “willful” and “wanton” have substantially the

same meaning when used in reference to the requisite state of mind

for a violation of a criminal statute. State v. Williams, 284 N.C.

67, 72–73, 199 S.E.2d 409, 412 (1973). “[Willful] as used in

criminal statutes means the wrongful doing of an act without

justification or excuse, or the commission of an act purposely and

deliberately in violation of law.” State v. Arnold, 264 N.C. 348,

349, 141 S.E.2d 473, 475 (1965). “Willfulness” is a state of mind

which is seldom capable of direct proof, but which must be inferred

from the circumstances of the particular case. Id.

      Despite Defendant’s assertion to the contrary, there need not

be an intent to break the law in order for an act to be “willful.”

State v. Coal Co., 210 N.C. 742, 754–55, 188 S.E. 412, 420 (1936).

Thus, it does not matter whether Defendant knew for certain if the
                                 -12-
Ligustrum shrubs were on her property or Waraksa’s property when

she cut them down.

            The word [“willful”], used in a statute
            creating a criminal [offense], means something
            more than an intention to do a thing. It
            implies the doing the act purposely and
            deliberately, indicating a purpose to do it,
            without authority — careless whether [she] has
            the right or not — in violation of law, and it
            is this which makes the criminal intent,
            without which one cannot be brought within the
            meaning of a criminal statute.

In re Adoption of Hoose, 243 N.C. 589, 594, 91 S.E.2d 555, 558

(1956) (citation and internal quotation marks omitted).

     In this case, the State presented testimony by Waraksa that

the Ligustrum shrubs were on his property. The State also presented

evidence that Defendant acknowledged that the property line was in

dispute through a signed letter in which she asked Waraksa to stop

planting hedges until the property-line dispute was resolved.

Defendant’s testimony and her signed letter indicate that she did

not know whether the Ligustrum shrubs were on her property or

Waraksa’s. Accordingly, it was for the jury to determine whether

the shrubs were planted on Waraksa’s property or Defendant’s and

whether Defendant was legally justified in cutting them down. While

Defendant    presented   some   evidence   to   contradict   Waraksa’s

testimony regarding the location of the shrubs in relation to the

property line, “[i]t is elementary that the jury may believe all,
                                 -13-
none, or only part of a witness’[s] testimony[.]” State v. Miller,

26 N.C. App. 440, 443, 216 S.E.2d 160, 162, affirmed, 289 N.C. 1,

220 S.E.2d 572 (1975). Here, the jury opted to believe Waraksa’s

testimony that the shrubs were planted on his property. Therefore,

the evidence produced by the State, even though it was contested,

provided sufficient evidence for the finding that Defendant had

cut down the shrubs on Waraksa’s property without justification.

Accordingly, we hold that the superior court did not err in denying

Defendant’s motion to dismiss.

     III. Jury Instructions

     Lastly, Defendant contends that the trial court committed

reversible error by failing to directly answer the jury’s question:

“Is [D]efendant [j]ustified in cutting down property she knew was

not hers if she truly believed [that the bushes] were on her

property[?]” Defendant contends a proper instruction would have

been:

          For you to find[ D]efendant guilty of injury
          to real property, you must find that she
          willfully   damaged   trees,    lawn[,]   and
          flowerbeds, the real property of[] Waraksa.
          [“]Willful” is defined as “the wrongful doing
          of an act without justification or excuse, or
          the commission of an act purposely and
          deliberately in violation of [the] law.
          [“]Willfully” means “something more than an
          intention to commit the offense.”
                                 -14-
Defendant contends that the superior court’s failure to give this

instruction “affected [the jury’s] verdict.” Defendant argues that

the trial court’s decision not to answer this question amounted to

a failure to instruct on willfulness and, thus, that the jury might

not have properly considered Defendant’s state of mind. Therefore,

Defendant reasons, the State was improperly required to prove only

that Defendant damaged the shrubs.

      The State argues, and Defendant concedes, that — because

Defendant did not object to the trial court’s original charge,

request a different charge at the charge conference, or request

any additional charge when the jury expressed confusion — Defendant

did not properly preserve this argument for appeal. We agree.

      In matters concerning jury instructions, a party’s failure to

object at trial limits our review to an examination for plain

error. State v. King, 342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995)

(citing State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)); see

also N.C.R. App. P. 10(a)(2). Plain error is “error so fundamental

that it tilted the scales and caused the jury to reach its verdict

convicting the defendant.” State v. Bagley, 321 N.C. 201, 211, 362

S.E.2d 244, 250 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d

912   (1988)   (internal   quotation   marks   omitted).   “In   deciding

whether a defect in the jury instruction constitutes ‘plain error’,
                               -15-
[sic] the appellate court must examine the entire record and

determine if the instructional error had a probable impact on the

jury’s finding of guilt.” Odom, 307 N.C. at 661, 300 S.E.2d at

378-79. “[A] charge must be construed as a whole in the same

connected way in which it was given. When thus considered, if it

fairly and correctly presents the law, it will afford no ground

for reversing the judgment, even if an isolated expression should

be found technically inaccurate.” State v. Tomblin, 276 N.C. 273,

276, 171 S.E.2d 901, 903 (1970) (internal quotation marks omitted).

      In this case, Defendant’s proposed jury instructions are

substantially similar to those actually given by the superior

court. Indeed, the court initially explained the term “willful” as

follows:

           THE COURT: . . .

           [D]efendant has been charged with willful and
           wanton damage to, injury to, or destruction of
           real property. For you to find[ D]efendant
           guilty of this offense, the State must prove
           two things beyond a reasonable doubt.

           First, that [D]efendant damaged, injured, or
           destroyed Ligustrum shrubs of Anthony Waraksa.
           Lugustrum [sic] shrubs are real property.

           And second, that[] [D]efendant did this
           willfully       and    wantonly;   that is,
           intentionally and without justification or
           excuse,   and    without   regard   for the
           consequences or the rights of others.
                              -16-
          If you find from the evidence beyond a
          reasonable doubt that on or about the alleged
          date, [D]efendant willfully and wantonly
          damaged, injury, [sic] or destroyed Ligustrum
          shrubs, it would be your duty to return a
          verdict of guilty. If you do not so find or
          have a reasonable doubt as to one or both of
          these things, it would be your duty to return
          a verdict of not guilty.

In addition, the jurors had written copies of the instructions

quoted above, and the judge offered to re–read the instructions to

the jurors if necessary:

          THE COURT: . . .

          I’m happy to re-read them, if they want. But
          since   they   all    have   copies   of   the
          instructions, I don’t want to insult their
          intelligence — I won’t say that, but something
          like that. And I’ll ask them to return to the
          jury room to continue deliberating. But if for
          any reason they, any one of them wants the
          Court to orally re[-]give the instructions,
          I’ll be happy to do so, and they can just send
          out another note. I mean I have found in the
          past from time to time there is a juror who
          does not read well and prefers to hear
          something orally. So I want to make sure they
          understand they have that option and that
          right, whether or not they’ll exercise it.

“[T]his Court has consistently held that a trial court is not

required to repeat verbatim a . . . specific instruction that is

correct and supported by the evidence, but that it is sufficient

if the court gives the instruction in substantial conformity with
                                   -17-
the request.” State v. Brown, 335 N.C. 477, 490, 439 S.E.2d 589,

597 (1994).

       Here,   the   instruction    given   clearly     sets    forth   that

“willfulness” is a necessary element of injury to real property.

To find Defendant guilty of injury to real property, the State had

to prove the Defendant had a “willful” state of mind when she

damaged the shrubs. If the jury had a reasonable doubt as to the

willfulness of Defendant’s actions, the jury’s duty was to find

Defendant not guilty of injury to real property. This is, in

substance, the concept Defendant claims the trial court should

have   reiterated    to   the   jury.   Because   the   trial   court   gave

instructions in substantial conformity with those that Defendant

argues for on appeal, Defendant’s argument is overruled. The trial

court did not err — much less plainly err — in declining to directly

answer the jury’s question. Accordingly, we find

       NO ERROR.

       Judges STEELMAN and DAVIS concur.
