An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in acc ordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                   NO. COA14-174
                          NORTH CAROLINA COURT OF APPEALS

                                 Filed: 16 September 2014


STATE OF NORTH CAROLINA

      v.                                           Mecklenburg County
                                                   Nos. 09 CRS 237810
                                                   09 CRS 237821
                                                   10 CRS 17532
JOHN DONALD MATTHEWS



      Appeal by defendant from judgments entered 31 July 2013 by

Judge Richard D. Boner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 28 August 2014.


      Roy   Cooper,  Attorney   General,   by  Steven                      Armstrong,
      Assistant Attorney General, for the State.

      Jennifer Harjo, Public Defender, by Brendan O’Donnell,
      Assistant Public Defender, for defendant-appellant.


      STEELMAN, Judge.


      Where      the     State    presented   substantial       evidence    that   the

property        stolen     belonged    to     an    entity   capable       of   owning

property, the trial court did not err in denying defendant’s

motion     to    dismiss     the    charge    of    felonious    larceny.       Where

defendant failed to raise the constitutional issue of double
                                 -2-
jeopardy at trial, he cannot raise it for the first time on

appeal.      Where the trial court admitted evidence pursuant to

Rule 404(b), and defendant’s argument on appeal is based solely

upon Rule 403, we hold that the trial court did not abuse its

discretion in admitting the evidence.

                 I. Factual and Procedural Background

    John Donald Matthews (defendant) was indicted for felonious

breaking or entering, larceny after breaking or entering, and

larceny of a firearm arising from a 2 March 2009 break-in in

Charlotte.    Defendant was also indicted for obtaining the status

of an habitual felon.     Defendant was convicted, and appealed to

this Court.      We held that the trial court erred in denying

defendant the right to make the final argument to the jury, and

remanded the case for a new trial.      State v. Matthews, 218 N.C.

App. 277, 281, 720 S.E.2d 829, 833 (2012).      The underlying facts

of this case are contained in that opinion.

    On remand, defendant was tried for felonious breaking or

entering, larceny after breaking or entering, and obtaining the

status of an habitual felon.      The State obtained a superseding

indictment on the habitual felon charge.

    At    trial,   defendant   represented   himself,   with   standby

counsel present.      The jury convicted     defendant on all three
                                             -3-
counts.    On 31 July 2013, the trial court sentenced defendant to

110-151 months imprisonment.

    Defendant appeals.

                            II. Motion to Dismiss

    In his first argument, defendant contends that the trial

court    erred    in    denying   his       motion     to   dismiss    the   charge    of

felonious larceny.        We disagree.

                            A. Standard of Review

    “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).

                                   B. Analysis

    Defendant was charged with, and found guilty of, felonious

larceny.     A    person    is    guilty       of    larceny    when    he   takes    and

carries    away    the    personal          property    of    another    without      the

latter’s consent and with intent to deprive the owner of its use

permanently.       State v. Patterson, 194 N.C. App. 608, 613, 671

S.E.2d 357, 360 (2009).           An indictment for larceny must name the

alleged owner or person in lawful possession of the property

and, if the victim is not a natural person, the indictment must

allege    that    the    owner    is    a    legal     entity   capable      of   owning
                                    -4-
property.      State v. Phillips, 162 N.C. App. 719, 720-21, 592

S.E.2d 272, 273 (2004).

    In   the    instant   case,   defendant’s   indictment   for   larceny

stated that defendant “did steal, take and carry away cartons of

cigarettes, cigarette lighters, and United States currency, the

personal property of EGF Enterprises III, Inc., a corporation,

doing business as Value Mart, pursuant to a violation of Section

14-54 of the General Statutes of North Carolina.”

    At trial, Elias Francis (Francis), one of the owners of EGF

Enterprises III, Inc. (EGF), testified as follows:

            Q. And, Mr. Francis, are you associated with
            EGF Enterprises III?

            A. Yes, I own fifty percent of that store.

            Q. Five-zero percent?

            A. Yes, five-zero.

            Q. And what did EGF Enterprises III operate?

            A. Value Mart convenience store on McAlway.

            Q. Who do you own that store with?

            A. I own it with Abdelfattah Abdelmajid.

            Q. Are there any other owners?

            A. No.

            . . .

            Q. And on March 2nd, 2009 was EGF operating
                                         -5-
              Value Mart at that location?

              A. Yes.

      He    testified    that,     the   day   after    the    alleged     burglary,

cartons of cigarettes were missing from the Value Mart store.

We hold that this constituted evidence that the property was

stolen from the store.

      Defendant contends, nonetheless, that the evidence at trial

was “not legally sufficient to support the property-of-another

element of the larceny charge in at least two ways.”                          First,

defendant contends that there was no evidence as to who owned

the property stolen.         This is not correct.

      Francis’       testimony   explicitly      stated       that   the   cigarette

cartons were discovered missing upon a review of the store’s

inventory.         “Inventory” is defined as “[a] detailed list of all

things in one’s view or possession, esp. a periodic survey of

all   goods    and     materials    in   stock.”        The    American     Heritage

Dictionary, Second College Edition, 675 (1982).                      The cigarette

cartons were missing from inventory.                Thus, they were missing

from the store’s possession.             Based upon Francis’ testimony, the

store owned the missing cigarettes.

      Second, defendant contends that there was no evidence that

EGF   was     an    entity   capable     of    owning   property.          Defendant
                                     -6-
concedes that, in the indictment, EGF is modified by “Inc.” and

“a corporation,” terms that are sufficient to convey that an

entity is capable of owning property.             Patterson, 194 N.C. App.

at 613-14, 671 S.E.2d at 360-61.             However, defendant contends

that no evidence was raised at trial of EGF’s status as an

entity capable of owning property.

      As with defendant’s prior argument, this is not correct.

Francis’ testimony revealed that he and Mr. Abdelmajid owned

EGF, which operated Value Mart.        We hold that Francis’ testimony

concerning the ownership of EGF and of EGF’s operation of the

Value Mart store constituted substantial evidence that EGF was

an entity capable of owning property.             The trial court did not

err   in   denying   defendant’s    motion   to    dismiss   the   charge   of

felonious larceny.

      This argument is without merit.

             III. Superseding Habitual Felony Indictment

      In his second argument, defendant contends that the trial

court erred in permitting the State to proceed on a superseding

habitual felony indictment.        We disagree.

                         A. Standard of Review

      “An attack on an indictment is waived when its validity is

not challenged in the trial court.” State v. Wallace, 351 N.C.
                                        -7-
481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148

L. Ed. 2d 498 (2000). “However, where an indictment is alleged

to be invalid on its face, thereby depriving the trial court of

its jurisdiction, a challenge to that indictment may be made at

any time, even if it was not contested in the trial court.” Id.

                                  B. Analysis

      At the original trial, defendant was indicted for habitual

felon status (case number 09 CRS 68794).                 On remand from this

Court, the State obtained a superseding indictment for habitual

felon status (case number 13 CRS 21209).                     Defendant contends

that prosecution of this superseding habitual felon indictment

violated the Habitual Felons Act, N.C. Gen. Stat. § 14-7.1 et

seq., or alternatively violated double jeopardy.

      First, defendant contends that the superseding indictment

was   invalid    because   it    came   so    long   after    his   first   trial.

Specifically, defendant notes that “the date of defendant’s plea

at the first trial was in October 2010 – long before . . . May

2013, the date of the superseding indictment.”

      Defendant points to our decision in State v. Cogdell, in

which   we      held   that     “the    critical     event     that   forecloses

substantive changes in an habitual felon indictment is the plea

entered before the actual trial.”               State v. Cogdell, 165 N.C.
                                       -8-
App. 368, 373, 599 S.E.2d 570, 573 (2004).                    In Cogdell, the

defendant was arraigned, and subsequently a superseding habitual

felon indictment was obtained by the State.                   This superseding

indictment      was     filed     “approximately      three     months     before

defendant’s trial.”         Id. at 374, 599 S.E.2d at 573.                We held

that “defendant received sufficient notice that he was being

prosecuted as an habitual felon[,]” and declined to find error.

Id. at 374, 599 S.E.2d at 574.

      Defendant ignores our ruling in Cogdell, and instead pulls

language out of context to support his argument.                Defendant also

ignores the fact that the superseding indictment in the instant

case was obtained after this case was appealed and remanded for

a new trial.          The superseding indictment was filed in May of

2013; the new trial was held in July of 2013, two months after

the filing of the superseding indictment.                   In accordance with

our   opinion   in     Cogdell,   we   hold   that   this    time     period   gave

defendant sufficient notice that he was being prosecuted as an

habitual felon.

      Next, defendant contends that the filing of a superseding

indictment      constituted       a    violation      of     double     jeopardy.

Defendant    contends     that     “[t]here   is     no    material    difference

between indictments 13 CRS 21209 . . . upon which Mr. Matthews
                                     -9-
was convicted in this case, and indictment 09 CRS 68794 upon

which Mr. Matthews was previously convicted and sentenced.”

    “[A]      constitutional     issue     not   raised    at    trial    will

generally   not    be   considered   for   the   first    time   on   appeal.”

State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009).

In the instant case, defendant did not object to the habitual

felon charge against him.        At no point during the trial did he

raise   double     jeopardy    concerns     regarding      the    superseding

indictment.       Double jeopardy is a constitutional issue which

must be raised at trial to be preserved.                  Failure to raise

double jeopardy at trial constitutes waiver of such an argument.

See State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010).

Because defendant failed to raise this issue at trial, it is not

preserved, and is not properly before this Court.                The issue of

double jeopardy is dismissed.

    This argument is without merit.

                        IV. Evidence of Later Crimes

    In his third argument, defendant contends that the trial

court erred in admitting evidence of defendant’s later crimes.

We disagree.

                           A. Standard of Review
                               -10-
    “Evidentiary errors are harmless unless a defendant proves

that absent the error a different result would have been reached

at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d

889, 893, disc. review denied, 354 N.C. 223, 554 S.E.2d 650

(2001).

    “We review a trial court’s decision to exclude evidence

under Rule 403 for abuse of discretion.” State v. Whaley, 362

N.C. 156, 160, 655 S.E.2d 388, 390 (2008).

          Though this Court has not used the term de
          novo to describe its own review of 404(b)
          evidence, we have consistently engaged in a
          fact-based inquiry under Rule 404(b) while
          applying an abuse of discretion standard to
          the subsequent balancing of probative value
          and unfair prejudice under Rule 403. For the
          purpose of clarity, we now explicitly hold
          that when analyzing rulings applying Rules
          404(b)   and    403,    we    conduct   distinct
          inquiries    with    different    standards   of
          review. When the trial court has made
          findings of fact and conclusions of law to
          support its 404(b) ruling . . . we look to
          whether the evidence supports the findings
          and   whether    the   findings    support   the
          conclusions. We review de novo the legal
          conclusion that the evidence is, or is not,
          within the coverage of Rule 404(b). We then
          review    the    trial     court’s    Rule   403
          determination for abuse of discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 158-59

(2012) (citations omitted).

                            B. Analysis
                                        -11-
      Defendant      contends      that      the     trial     court     abused       its

discretion       under   Rule     403   of   the     North     Carolina       Rules   of

Evidence    in    admitting      evidence     of    defendant’s        later    crimes.

Defendant bases his entire argument on this issue upon Rule 403.

      On   26    June    2013,    the   State      provided    written     notice      to

defendant of its intent to offer evidence of a similar break-in

allegedly committed by defendant on 4 August 2009 as evidence

admissible pursuant to Rule 404(b) of the North Carolina Rules

of Evidence.       Prior to calling a witness concerning the charges

in   the   indictment,      the    State     called     a     witness    to    testify

concerning the 4 August 2009 break-in.                 The trial court allowed

this testimony for a limited purpose.                  Specifically, the trial

court held:

            Mr. Matthews, again, the purpose of this
            evidence is to show that at the time you are
            alleged to have committed the crimes for
            which you're being tried, you had the intent
            to commit the crime and a scheme or method
            or plan as to how to commit it. I've
            instructed the jury that that's all they can
            consider it for.

      The trial court later elaborated the rule under which it

was allowing this evidence:

            I've instructed the jury that they can only
            consider it for the limited purpose for
            which it's being offered. It's called 404(b)
            evidence.
                                   -12-
    Defendant,      representing    himself,   acknowledged    that   the

evidence was being admitted under Rule 404(b), but protested

that “I don't even know what 404(b) is.”

    Rule     403,   concerning     exclusion   of   relevant   evidence,

provides that:

            Although relevant, evidence may be excluded
            if its probative value is substantially
            outweighed   by   the    danger   of  unfair
            prejudice, confusion of the issues, or
            misleading the jury, or by considerations of
            undue delay, waste of time, or needless
            presentation of cumulative evidence.

N.C. R. Evid. 403.       By contrast, Rule 404(b), concerning the

admission    of   otherwise   inadmissible     character   evidence   for

limited purposes, provides that:

            Other crimes, wrongs, or acts. - Evidence of
            other crimes, wrongs, or acts is not
            admissible to prove the character of a
            person in order to show that he acted in
            conformity therewith. It may, however, be
            admissible for other purposes, such as proof
            of motive, opportunity, intent, preparation,
            plan, knowledge, identity, or absence of
            mistake, entrapment or accident.

N.C. R. Evid. 404(b).

    Defendant has raised no argument on appeal with regard to

the admissibility of this evidence under Rule 404(b).          As noted

above, defendant’s argument relies exclusively on Rule 403.            We
                                        -13-
note that analysis under Rule 403 is part of                          a Rule 404(b)

analysis.

    Alleged errors under Rule 403 are reviewed pursuant to an

abuse   of   discretion     standard.          “Abuse    of    discretion    results

where the court’s ruling is manifestly unsupported by reason or

is so arbitrary that it could not have been the result of a

reasoned decision.”         State v. Hennis, 323 N.C. 279, 285, 372

S.E.2d 523, 527 (1988).

    We recognize that the evidence to which defendant objects

was necessarily prejudicial to defendant.                     “Most evidence tends

to prejudice the party against whom it is offered.”                         State v.

Braxton, 352 N.C. 158, 196, 531 S.E.2d 428, 450 (2000).                      But the

question     under   Rule    403   is    not    merely    whether       evidence   is

prejudicial,     but   whether     the    trial     court       has    balanced    the

probative value of the evidence with any unfair prejudice it

might cause.     Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 158.

In the instant case, there was no unfair prejudice to defendant.

The trial court admitted the evidence for a limited purpose,

permitted by Rule 404(b), and carefully explained that purpose

to both the jury and defendant.                We hold that the trial court

did not abuse its discretion in admitting this evidence pursuant

to Rule 404(b) of the North Carolina Rules of Evidence.
                         -14-
This argument is without merit.

NO ERROR IN PART, DISMISSED IN PART.

Judge GEER concurs.

Judge HUNTER, Robert N., Jr. concurred prior to 6 September

2014.

Report per Rule 30(e).
