              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-1306

                                  Filed: 5 July 2017

Wake County, No. 14 CRS 207484

STATE OF NORTH CAROLINA

             v.

MICHAEL AYODEJI FALANA, Defendant.


      Appeal by Michael Ayodeji Falana from judgment entered 14 January 2016 by

Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of

Appeals 17 May 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General M. Denise
      Stanford, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jillian C.
      Katz, for the Defendant.

      MURPHY, Judge.


      Michael Ayodeji Falana (“Defendant”) appeals from the judgment below in

which a jury found him guilty of felony conversion. Defendant argues that the trial

court erred by denying his Motion to Dismiss because: (1) the State failed to establish

an essential element of felony conversion; and (2) the State’s evidence at trial fatally

varied from the indictment. Defendant argues further that the trial court’s jury

instructions were in error because: (1) the trial judge instructed the jury on felony

conversion based on the evidence presented at trial, which fatally varied from the
                                  STATE V. FALANA

                                  Opinion of the Court



indictment; (2) the trial court answered a question from the jury in violation of

N.C.G.S. § 15A-1234(c) (2015); and (3) the trial court’s supplemental instruction in

response to a question from the jury was legally erroneous and resulted in a coerced

verdict. We agree with Defendant that the trial court erred by denying Defendant’s

Motion to Dismiss, and vacate the judgment.

                                    Background

      In 2011, Defendant opened a business, Micdina Motors, that buys cars at live

and online auctions. To carry out his business, Defendant subscribed to various

online auction sites, including Copart. Copart is a marketing company that liquidates

total loss vehicles through online auctions. Only members that have provided proof

of licensing and paid associated fees can access and participate in Copart’s auctions.

      Around 2012, Defendant permitted Mr. Olamide Olamosu (“Olamosu”) to use

his auction accounts for Olamosu to conduct his own business in exchange for a

portion of Olamosu’s sales.    Defendant also permitted Olamosu to register as a

licensed sales representative with Micdina Motors at the North Carolina Department

of Motor Vehicles.     Although Olamosu’s transactions went through Defendant’s

online accounts and he had access to one of Micdina Motors’ email accounts,

Defendant testified that Olamosu generally did not discuss his customers with

Defendant in detail.




                                         -2-
                                  STATE V. FALANA

                                  Opinion of the Court



      In May or June 2013, Olamosu assisted Mr. Ezuma Igwe (“Igwe”) in the

acquisition of a 2012 Honda Pilot (“Pilot”), which he found using Defendant’s account

on the Copart auction site. The purchase price was $15,200. When Olamosu and

Igwe picked up the Pilot, it did not run. In addition, Igwe was unable to get title to

the car as it was subject to a lien. Falsely identifying himself as Defendant, Olamosu

arranged a refund with Copart for Igwe. Defendant disputed whether he knew the

details of this purchase and subsequent need for a refund.

      In November 2013, Defendant and Olamosu began to have financial disputes

over various transactions, which led Defendant to believe Olamosu owed him over

$10,000. Olamosu told Defendant that he would pay Defendant what he owed before

he left the country in January 2014.

      In January 2014, Olamosu coordinated the refund with Copart, which was to

be sent to Olamosu’s home address. Defendant testified that Olamosu told him about

the check at this time, suggesting Defendant call Copart to ensure it sent the check.

On 10 January 2014, Defendant called Copart, and requested that Copart send the

check to his address instead. When the check arrived, Defendant deposited it in his

personal bank account. Defendant denied knowing the check was Igwe’s refund. He

claimed he never met Igwe, and believed the check would constitute money Defendant

owed him.




                                         -3-
                                  STATE V. FALANA

                                  Opinion of the Court



      The State charged Defendant with felony conversion in violation of N.C.G.S.

§ 14-168.1 (2015). The indictment read in pertinent part:

             that on or about January 23, 2014, in Wake County the
             defendant named above unlawfully, willfully, and
             feloniously did being entrusted with property, 2012 Honda
             Pilot, owned by Ezuma Igwe, as a person with power of
             attorney to sell or transfer the property, fraudulently
             convert the proceeds of the property to the defendant’s own
             use. The value of the property was in excess of $400[.]

(Emphasis added). At the conclusion of the State’s evidence, Defendant moved to

dismiss the charge, arguing that (1) there was insufficient evidence that Igwe owned

the Pilot; and (2) there was a fatal variance between the indictment and the evidence

presented at trial because there was insufficient evidence that Defendant converted

the Pilot. The trial court denied the motion. At the close of all evidence, Defendant

renewed the Motion to Dismiss, which the trial court again denied. Defendant was

convicted of felony conversion. After Defendant paid restitution to Igwe in full, the

trial court sentenced Defendant to a minimum 6 months, maximum 17 months

imprisonment, which it suspended, placing Defendant on 24 months supervised

probation. On 14 January 2016, Defendant entered oral notice of appeal.

                                      Analysis

      Defendant argues inter alia that the Motion to Dismiss should have been

granted because the State failed to establish an essential element of felony conversion




                                         -4-
                                  STATE V. FALANA

                                  Opinion of the Court



– ownership – and there was a fatal variance between the indictment and the

evidence presented at trial as to ownership. We agree.

       “This Court reviews the 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) (citation omitted).

“[T]he question for the Court is whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense included therein, and

(2) of defendant’s being the perpetrator of such offense.” State v. Marley, 227 N.C.

App. 613, 614-15, 742 S.E.2d 634, 636 (2013) (citation omitted). Substantial evidence

exists if there is “relevant evidence that [a] reasonable mind might accept as adequate

to support a conclusion.” Id. at 614, 742 S.E.2d at 635 (citation omitted). A variance

between the indictment and the evidence presented at trial “occurs where the

allegations in an indictment, although they may be sufficiently specific on their face,

do not conform to the evidence actually established at trial.” State v. Norman, 149

N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002). Where such a variance is material,

it warrants a reversal because of the concern that the defendant be “able to prepare

his defense against the crime with which he is charged, and to protect the defendant

from another prosecution for the same incident.” Id. at 594, 562 S.E.2d at 457

(citations omitted).

      Defendant was charged with felony conversion pursuant to N.C.G.S. § 14-

168.1, which states:



                                         -5-
                                  STATE V. FALANA

                                 Opinion of the Court



            Every person entrusted with any property as bailee, lessee,
            tenant or lodger, or with any power of attorney for the sale
            or transfer thereof, who fraudulently converts the same, or
            the proceeds thereof, to his own use, or secretes it with a
            fraudulent intent to convert it to his own use, shall be
            guilty of a Class 3 misdemeanor.

            If, however, the value of the property converted or secreted,
            or the proceeds thereof, is in excess of four hundred dollars
            ($400.00), every person so converting or secreting it is
            guilty of a Class H felony. In all cases of doubt the jury
            shall, in the verdict, fix the value of the property converted
            or secreted.

      Felony conversion “occurs when a defendant offends the ownership rights of

another.” State v. Woody, 132 N.C. App. 788, 789, 513 S.E.2d 801, 803 (1999).

            [A]n essential component of the crime is the intent to
            convert or the act of conversion, which by definition
            requires proof that someone other than a defendant owned
            the relevant property. Because the State is required to
            prove ownership, a proper indictment must identify as
            victim a legal entity capable of owning property. An
            indictment that insufficiently alleges the identity of the
            victim is fatally defective and cannot support conviction of
            either a misdemeanor or a felony.

Id. at 789-90, 513 S.E.2d at 803. “Where an indictment charges the defendant with

a crime against someone other than the actual victim, such a variance is fatal.” Id.

at 790, 513 S.E.2d at 803 (quoting State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d

131, 144 (1994)). Thus, a proper indictment for felony conversion must identify the

proper victim and the State must prove ownership. Id. at 789-90, 513 S.E.2d at 803.

      The State failed to provide substantial evidence of each essential element of

felony conversion because it failed to establish that Igwe owned the Pilot. Despite

                                        -6-
                                  STATE V. FALANA

                                  Opinion of the Court



alleging that Defendant was entrusted with the Pilot “owned by Ezuma Igwe,” the

evidence demonstrated that Igwe was never the owner of the Pilot. North Carolina

law defines the owner of a motor vehicle as “a person holding the legal title to a

vehicle.” N.C.G.S. § 20-4.01(26) (2015). Igwe never received title to the Pilot; thus,

he did not meet the definition of owner of a motor vehicle in North Carolina as to the

Pilot. Moreover, a lien encumbered the Pilot that Igwe could not remove. The lack

of title statutorily precluded Igwe from qualifying as an owner, and the lien further

demonstrated his lack of ownership of the Pilot. Therefore, the State did not produce

sufficient evidence that Igwe owned the Pilot.           Since ownership is essential to

establishing the elements of felony conversion, Woody, 132 N.C. App. at 289-90, 513

S.E.2d at 803, there was not substantial evidence of each essential element of the

offense charged. The trial court erred when it failed to grant Defendant’s Motion to

Dismiss.

                                    Conclusion

      For the reason stated above, the trial court should have granted Defendant’s

Motion to Dismiss. We need not reach the additional fatal variance issue argued by

Defendant or the issues related to the jury instructions.

      VACATED.

      Judges HUNTER, JR. and DAVIS concur.




                                         -7-
