              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-707

                                  Filed: 18 April 2017

Pitt County, Nos. 14 CRS 51431, 51433, 3584

STATE OF NORTH CAROLINA

             v.

ANTHONY LEE MCNAIR


      Appeal by defendant from judgments entered 19 August 2015 by Judge W.

Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 26

January 2017.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Michael
      T. Wood, for the State.

      Kimberly P. Hoppin for defendant-appellant.


      DAVIS, Judge.


      This case presents a number of issues stemming from the defendant’s act of

breaking into a barn adjacent to a building that was being rented by a church for the

purpose of holding religious services. Anthony Lee McNair (“Defendant”) appeals

from his convictions of breaking or entering into a place of religious worship,

possession of burglary tools, and injury to personal property. On appeal, Defendant

argues that the trial court erred in denying his motion to dismiss the charges against

him due to (1) insufficiency of the evidence to support his convictions; (2) the existence
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of fatal variances between his indictment and both the evidence at trial and the trial

court’s jury instructions; and (3) the facial invalidity of the indictment. After careful

review, we find no error in part, vacate in part, and remand.

                      Factual and Procedural Background

      The State presented evidence at trial tending to show the following facts: In

February of 2014, Vision Phase III International Outreach Center (“Vision”) — a

church “engaged in international missions” — was renting a building (the “Chapel”)

in Greenville, North Carolina owned by Sutton Amusement Company (“Sutton”) for

the purpose of conducting its church services.            The Chapel and several other

structures situated behind it were located on a half block along Raleigh Street. One

of these structures was a small barn (the “Barn”), which was located approximately

50 feet behind the Chapel. Although Sutton owned the Barn, it allowed Vision to use

the Barn to store equipment that it could not keep in the Chapel.

      A six-foot-tall chain link fence stood along the sidewalk adjacent to Raleigh

Street beside the Chapel. A large building also owned by Sutton and used for its

storage purposes was located behind the Chapel and the Barn along the back side of

the half block. Directly behind the Chapel and to the right of the Barn stood a ten-

foot brick wall, which closed off access to the premises such that entry was only

possible through the main gate of the chain link fence. Both the Chapel and the Barn




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were located within the area enclosed by the chain link fence, Sutton’s large storage

building, and the ten foot brick wall.

      A padlock secured the main gate of the chain link fence. A second padlock

affixed to a hasp was used to secure the door of the Barn. One part of the hasp was

screwed into the door frame and the other part was fastened to the door. The padlock

was used to secure both parts of the hasp together in order to keep the Barn door

locked.

      At approximately 1:00 a.m. on 19 February 2014, Officer Adam Smith of the

Greenville Police Department was notified by dispatch that a 911 caller had reported

the presence of a person “inside the fence” on the Sutton property near the Chapel.

Detective Joshua Smith and Officer Chad Bowen of the Greenville Police Department

were also dispatched to the scene.

      When Officer Smith arrived at the Raleigh Street side of the premises, he

looked inside the fenced-in area and observed Defendant climbing over the ten-foot

brick wall from the inside out. The officers discovered that the padlock securing the

main gate at the front of the property had been cut off and was laying on the ground

next to the gate.    Outside the fenced-in area near the main gate, the officers

discovered bolt cutters and an electrical cord.

      Inside the fenced-in area, the officers also discovered that (1) the Barn door

had been opened; (2) “the whole padlock assembly” had been “pried off” of the Barn



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door; and (3) a pry bar that had previously been stored inside the Barn was laying on

the ground inside the fenced-in area. The officers also found a pair of work gloves in

the fenced-in area near the ten-foot wall. Detective Smith noticed “a metal gate

propped up against the wall . . . sort of like a ramp type, where [sic] somebody may

have used to go up over” the brick wall.

      Defendant was subsequently arrested, advised of his Miranda rights, and

questioned by Detective Matt McKnight at the Greenville Police Department.

Detective McKnight testified that Defendant had stated that he was homeless and

that he had “illegally entered the premises of the church for the purpose of sleeping

and that all he did was sleep on a bench near the courtyard of the church.”

      Defendant was indicted on the charges of: (1) breaking or entering into a place

of religious worship; (2) possession of burglary tools; (3) injury to the personal

property of Vision; (4) breaking or entering a building occupied by Sutton; and (5)

injury to the personal property of Sutton. A jury trial was held beginning on 18

August 2015 before the Honorable W. Russell Duke, Jr. in Pitt County Superior

Court. At trial, the State presented testimony from Officer Smith, Detective Smith,

Officer Bowen, William Harper (the pastor of Vision), and Jonathan Sutton (the

owner of Sutton Amusement Company). Defendant and his brother, Lynwood Leon

McNair, testified for the defense.




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      At the close of the State’s evidence, counsel for Defendant made a motion to

dismiss, which was denied by the trial court. The jury found Defendant guilty of: (1)

breaking or entering into Vision, a place of religious worship; (2) possession of

burglary tools; (3) injuring the personal property of Vision; and (4) injuring the

personal property of Sutton. The jury found him not guilty of breaking or entering

into a building occupied by Sutton. Defendant was also found guilty of attaining the

status of a habitual felon.

      The trial court consolidated the judgments and sentenced Defendant to 146 to

188 months imprisonment. Defendant gave oral notice of appeal and also filed a

written notice of appeal.

                                       Analysis

      On appeal, Defendant contends that the trial court erred by denying his motion

to dismiss the charges against him.        “When reviewing a defendant’s motion to

dismiss, this Court determines only whether there is substantial evidence of (1) each

essential element of the offense charged and of (2) the defendant’s identity as the

perpetrator of the offense. Whether the evidence presented at trial is substantial

evidence is a question of law for the court. Appellate review of a denial of a motion to

dismiss for insufficient evidence is de novo.” State v. Fisher, 228 N.C. App. 463, 471,

745 S.E.2d 894, 900-01 (internal citations and quotation marks omitted), disc. review

denied, 367 N.C. 274, 752 S.E.2d 470 (2013).



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             In reviewing challenges to the sufficiency of evidence, we
             must view the evidence in the light most favorable to the
             State, giving the State the benefit of all reasonable
             inferences. Contradictions and discrepancies do not
             warrant dismissal of the case but are for the jury to resolve.
             The test for sufficiency of the evidence is the same whether
             the evidence is direct or circumstantial or both.
             Circumstantial evidence may withstand a motion to
             dismiss and support a conviction even when the evidence
             does not rule out every hypothesis of innocence.

State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (internal citations and

quotation marks omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).

      Our Supreme Court has held that “[i]f there is any evidence tending to prove

guilt or which reasonably leads to this conclusion as a fairly logical and legitimate

deduction, it is for the jury to say whether it is convinced beyond a reasonable doubt

of defendant’s guilt.” State v. Franklin, 327 N.C. 162, 171-72, 393 S.E.2d 781, 787

(1990). However, “[i]f the evidence is sufficient only to raise a suspicion or conjecture

as to either the commission of the offense or the identity of the defendant as the

perpetrator of it, the motion should be allowed.” State v. Scott, 356 N.C. 591, 595,

573 S.E.2d 866, 868 (2002) (citation omitted).

I. Breaking or Entering into a Place of Religious Worship

      Defendant’s first argument is that the trial court erred in denying his motion

to dismiss the charge of breaking or entering into a place of religious worship.

Specifically, he contends that (1) the Barn was not a place of worship; and (2) the

State presented insufficient evidence to support a finding that Defendant was guilty


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of the lesser-included offense of felony breaking or entering.      We address each

argument in turn.

      A. “Place of Religious Worship” Element

      N.C. Gen. Stat. § 14-54.1 states as follows:

             (a) Any person who wrongfully breaks or enters any
             building that is a place of religious worship with intent to
             commit any felony or larceny therein is guilty of a Class G
             felony.

             (b) As used in this section, a “building that is a place of
             religious worship” shall be construed to include any church,
             chapel, meetinghouse, synagogue, temple, longhouse, or
             mosque, or other building that is regularly used, and
             clearly identifiable, as a place for religious worship.

N.C. Gen. Stat. § 14-54.1 (2015) (emphasis added). Therefore, the elements of this

offense are that a person “[1] wrongfully breaks or enters [2] any building that is a

place of religious worship [3] with intent to commit any felony or larceny therein.”

State v. Campbell, 234 N.C. App. 551, 557, 759 S.E.2d 380, 384 (2014) (citation

omitted), rev’d on other grounds, 368 N.C. 83, 772 S.E.2d 440 (2015).

      As an initial matter, it is important to note that the only building Defendant

is alleged to have broken into was the Barn, and the State concedes that the Barn

itself was not used for religious worship. However, the State asserts that Defendant’s

act of breaking into the Barn nevertheless constituted breaking or entering a place of

religious worship for purposes of N.C. Gen. Stat. § 14-54.1 because “[t]he church was

more than just a single building.” Moreover, according to the State, the Barn was


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within the curtilage of the Chapel and, for this reason, the Barn should be deemed an

extension of the Chapel for purposes of N.C. Gen. Stat. § 14-54.1. We reject the State’s

arguments on this issue.

      “The duty of a court is to construe a statute as it is written.” Campbell v. First

Baptist Church, 298 N.C. 476, 482, 259 S.E.2d 558, 563 (1979) (citation omitted). N.C.

Gen. Stat. § 14-54(c) defines the word “building” to include “any dwelling, dwelling

house, uninhabited house, building under construction, building within the curtilage

of a dwelling house, and any other structure designed to house or secure within it any

activity or property.” N.C. Gen. Stat. § 14-54(c) (2015).

      Based on the manner in which N.C. Gen. Stat. § 14-54.1 is worded, it is clear

that in order for Defendant to have been convicted of violating this statute, the

specific building Defendant is alleged to have broken into must have been a “building

that is regularly used, and clearly identifiable, as a place for religious worship.” See

N.C. Gen. Stat. § 14-54.1. Although both the Chapel and the Barn meet the statutory

definition of “building,” it is clear that the Chapel and the Barn are separate

structures. The State presented evidence at trial that the Chapel was used for

religious services but presented no evidence that the Barn was used as a place of

religious worship — a fact which the State also concedes in its brief.

      Thus, because the Barn was not itself used for religious worship and because

the General Assembly has limited the reach of this offense to “building[s] that [are]



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regularly used, and clearly identifiable, as a place for religious worship[,]” the State

cannot establish that Defendant was guilty of violating N.C. Gen. Stat. § 14-54.1.

This Court is not at liberty to broaden the statutory text to encompass structures

adjacent to buildings being used as a place of religious worship. State v. Wagner, __

N.C. App. __, __, 790 S.E.2d 575, 582 (2016) (“Our courts lack the authority to rewrite

a statute, and instead, the duty of a court is to construe a statute as it is written.”

(citation, quotation marks, and brackets omitted)), disc. review denied, __ N.C. __,

795 S.E.2d 221 (2017).

      We are also unable to accept the State’s argument that because the Chapel was

a building that held religious services and the Barn was within the curtilage of the

Chapel, the Barn was “clearly identifiable[ ] as a place for religious worship” as

required by N.C. Gen. Stat. § 14-54.1(b). As quoted above, the definition of the term

“building” contained in N.C. Gen. Stat. § 14-54 references the term “curtilage” solely

by referring to a “building within the curtilage of a dwelling house.” See N.C. Gen.

Stat. § 14-54 (emphasis added). Here, the State does not attempt to argue that any

portion of the property occupied by Vision was being used as a dwelling house.

      We observe that the language in N.C. Gen. Stat. § 14-54 linking the term

“curtilage” to proximity to a dwelling house is consistent with caselaw from North

Carolina’s appellate courts defining curtilage. See, e.g., State v. Fields, 315 N.C. 191,

194, 337 S.E.2d 518, 520 (1985) (“The curtilage is the land around a dwelling house



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upon which those outbuildings lie that are commonly used with the dwelling house.”

(citation and quotation marks omitted and emphasis added)).

       Thus, the evidence presented by the State was not sufficient to convict

Defendant of violating N.C. Gen. Stat. § 14-54.1.          Accordingly, we must vacate

Defendant’s conviction of that offense.

       B. Sufficiency of Evidence as to Breaking or Entering

       Alternatively, the State contends that in the event we determine the evidence

was insufficient to convict Defendant under N.C. Gen. Stat. § 14-54.1, this Court

should remand to the trial court for entry of judgment on the lesser-included offense

of breaking or entering. Defendant, conversely, argues that the State not only failed

to introduce evidence showing a violation of N.C. Gen. Stat. § 14-54.1 but also failed

to produce adequate evidence to support a charge of breaking or entering.

Specifically, Defendant contends that his mere presence at the scene was insufficient

to establish his guilt as to this offense.

                     The essential elements of felonious breaking or
              entering are (1) the breaking or entering (2) of any building
              (3) with the intent to commit any felony or larceny therein.
              The criminal intent of the defendant at the time of
              breaking or entering may be inferred from the acts he
              committed subsequent to his breaking or entering [into]
              the building.

State v. Bowden, 216 N.C. App. 275, 278, 717 S.E.2d 230, 232-33 (2011) (internal

citation and quotation marks omitted).



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      Defendant asserts that the only evidence connecting him to the break-in was

his presence in the area when law enforcement officers arrived. It is well settled that

“a defendant’s mere presence at the scene of the crime does not make him guilty . . . .”

Id. at 279, 717 S.E.2d at 233 (citation and quotation marks omitted). However, the

State presented the following evidence establishing that Defendant broke into the

Barn: (1) Pastor Harper testified that on 18 February 2014 Vision had secured the

Barn’s door with a lock; (2) at 1:00 a.m. on 19 February 2014, a 911 call was received

stating that an individual was inside the fenced-in area; (3) Defendant was found by

law enforcement officers scaling a ten-foot brick wall near the Barn; (4) officers

discovered a pry bar on the ground next to the Barn; and (5) a broken lock was found

beside the Barn door.

      The evidence further supported an inference that Defendant intended to

commit larceny when he entered the Barn. Upon their arrival at the scene, officers

determined that the Barn “appeared to have been rummaged through” and “was kind

of in disarray[.]” The officers also discovered that certain items, including a grill and

a pressure washer, had been removed from the Barn and placed in the fenced-in area.

Pastor Harper testified that these items had been present inside the Barn earlier that

day. Thus, the State presented sufficient evidence that Defendant was guilty of

breaking or entering into the Barn.




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       “When the actual instructions given are sufficient to sustain a conviction on a

lesser included offense, we consider the conviction a verdict on the lesser charge and

then remand for appropriate sentencing.” State v. Stokes, 367 N.C. 474, 479, 756

S.E.2d 32, 36 (2014). “There are two lesser-included offenses to [N.C. Gen. Stat. § 14-

54.1]: felony breaking or entering under N.C. Gen. Stat. § 14-54(a) . . . which lacks

the ‘place of religious worship’ element, and misdemeanor breaking or entering under

N.C. Gen. Stat. § 14-54(b) . . . which lacks both the ‘place of religious worship’ element

and the intent [to commit a felony or larceny therein] element.” Campbell, 234 N.C.

App. at 557, 759 S.E.2d at 384-85.

       Taking all the evidence in the light most favorable to the State, we are satisfied

that although — as discussed above — the State did not put forth adequate evidence

to satisfy the “place of religious worship” element of N.C. Gen. Stat. § 14-54.1, the

State did present sufficient evidence for the jury to convict Defendant of the lesser-

included offense of felony breaking or entering under N.C. Gen. Stat. § 14-54(a).

Accordingly, we remand to the trial court for entry of judgment and resentencing on

the lesser-included offense of felony breaking or entering. See State v. Clark, 137

N.C. App. 90, 97, 527 S.E.2d 319, 323 (2000) (remanding for entry of judgment and

resentencing on lesser-included offense where evidence was insufficient to establish

guilt of greater offense).

II. Possession of Burglary Tools



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        Defendant makes two arguments with respect to his conviction for possession

of burglary tools: (1) he did not have either actual or constructive possession of the

burglary tools at issue; and (2) a fatal variance existed between the indictment and

the court’s instructions to the jury because the jury instructions — unlike the

indictment — referenced the work gloves found on the ground inside the fenced-in

area.

        A. Constructive Possession

        The State does not contend that Defendant had actual possession of the

burglary tools, and there is no indication in the record that would support such an

argument.     However, the State does contend that Defendant had constructive

possession of the pry bar and the bolt cutters at the time he was apprehended.

              Under the theory of constructive possession, a person may
              be charged with possession of an item . . . when he has both
              the power and intent to control its disposition or use, even
              though he does not have actual possession. Where such
              materials are found on the premises under the control of
              an accused, this fact, in and of itself, gives rise to an
              inference of knowledge and possession which may be
              sufficient to carry the case to the jury on a charge of
              unlawful possession. However, unless the person has
              exclusive possession of the place where the [items] are
              found, the State must show other incriminating
              circumstances before constructive possession may be
              inferred.

State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989) (internal citations and

quotation marks omitted). Thus “[t]here must be more than mere association or



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presence linking the person to the item in order to establish constructive possession.”

State v. McNeil, 209 N.C. App. 654, 663, 707 S.E.2d 674, 682 (2011) (citation and

quotation marks omitted).

      In the present case, burglary tools were found within the fenced-in area. While

Defendant was not in exclusive possession of the area where the tools were found, the

State presented the following other incriminating circumstances: (1) Defendant was

found alone inside a privately-owned, fenced-in area at 1:00 a.m.; (2) as the officers

entered the fenced-in area, they observed Defendant scaling a ten-foot brick wall in

an apparent attempt to avoid apprehension; (3) the officers determined that someone

had broken into the Barn, observing that toolboxes and cabinets in the Barn

“appeared to [have been] rummaged through”; (4) padlocks were laying on the ground

both next to the main gate and adjacent to the Barn door; and (5) several items,

including a grill and pressure washer, that had previously been stored inside the

Barn were found in the fenced-in area. These incriminating circumstances support a

finding that Defendant had constructive possession of the burglary tools.

      B. Fatal Variance Between Indictment and Jury Instructions

      Defendant also argues that a fatal variance existed between the indictment

and the trial court’s instructions to the jury with respect to the charge of possession

of burglary tools. Based upon our review of the trial transcript, it is clear that

Defendant’s trial counsel did not specifically raise this issue at trial. Our appellate



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courts, however, have “chosen to review . . . unpreserved issues for plain error when

the issue involves either errors in the trial judge’s instructions to the jury or rulings

on the admissibility of evidence.” State v. Holbrook, 137 N.C. App. 766, 768, 529

S.E.2d 510, 511 (2000) (citation, quotation marks, and brackets omitted). This Court

has expressly applied this rule to unpreserved arguments alleging a fatal variance

between an indictment and the trial court’s jury instructions. See State v. Ross, __

N.C. App. __, __, 792 S.E.2d 155, 158 (2016) (“Our review of this issue on appeal is

for plain error, as Defendant failed to object to the jury instruction at trial on the

basis that it varied materially from the indictment.” (citations and emphasis

omitted)).

                    For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, a defendant must
             establish prejudice — that, after examination of the entire
             record, the error had a probable impact on the jury’s
             finding that the defendant was guilty. Moreover, because
             plain error is to be applied cautiously and only in the
             exceptional case, the error will often be one that seriously
             affects the fairness, integrity or public reputation of
             judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,

quotation marks, and brackets omitted).

      Defendant’s argument is premised on his assertion that although the

indictment on the charge of possession of burglary tools only identified the pry bar

and the bolt cutters as implements of housebreaking in Defendant’s possession, the


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trial court nevertheless instructed the jury that it could find Defendant guilty if it

found that he possessed either the pry bar, the bolt cutters, or the work gloves.

      “Our Courts have found that a trial court’s jury instructions which vary from

the allegations of the indictment might constitute error where the variance is

regarding an essential element of the crime charged.” State v. Lark, 198 N.C. App.

82, 92, 678 S.E.2d 693, 700-01 (2009), disc. review denied, 363 N.C. 808, 692 S.E.2d

111 (2010). However, “[a]llegations beyond the essential elements of the crime sought

to be charged are irrelevant and may be treated as surplusage.” State v. Bollinger,

192 N.C. App. 241, 246, 665 S.E.2d 136, 139 (2008), aff’d per curiam, 363 N.C. 251,

675 S.E.2d 333 (2009).

      We find instructive our decision in Bollinger. In that case, the defendant was

charged with carrying a concealed weapon, and his indictment stated that the

defendant was carrying a “set of metallic knuckles” whereas the evidence at trial

showed that the defendant was also carrying “one or more knives.” Id. at 243, 665

S.E.2d at 138 (quotation marks, brackets, and emphasis omitted). The trial court did

not instruct the jury on the defendant’s act of carrying a “set of metallic knuckles”

and instead instructed on his carrying of “one or more knives.” Id. (quotation marks,

brackets, and emphasis omitted).

      On appeal, we rejected the defendant’s fatal variance argument, concluding

that the indictment’s language identifying the “metallic knuckles” was “mere



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surplusage.” Id. at 246, 665 S.E.2d at 139-40. We reasoned that “[t]he gist of the

offense [was] carrying a concealed weapon.” Id. at 246, 665 S.E.2d at 140. Thus, we

held that although “the indictment alleged metallic knuckles while the evidence

introduced at trial showed defendant carried knives in addition to metallic knuckles,

the trial court’s instructions on carrying a concealed weapon were not erroneous.” Id.

Moreover, we noted that even assuming arguendo that the trial court had, in fact,

erred, the “mention of ‘knives’ in the jury instructions as opposed to ‘metallic

knuckles’ . . . did not affect the burden of proof required of the State or constitute a

substantial change or variance from the indictment.” Id. at 247, 665 S.E.2d at 140.

      The essential elements of possession of burglary tools are “(1) the possession of

an implement of housebreaking (2) without lawful excuse, and the State has the

burden of proving both of these elements.” State v. Campbell, 188 N.C. App. 701, 711,

656 S.E.2d 721, 728 (citation and quotation marks omitted), appeal dismissed, 362

N.C. 364, 664 S.E.2d 311 (2008). The indictment charging Defendant with this

offense stated as follows:

             POSSESSION OF BURGLARY TOOLS

             And the jurors for the State upon their oath present that
             on or about the 19th day of February, 2014, in the County
             named above the defendant named above unlawfully,
             willfully and feloniously did without lawful excuse have in
             the defendant’s possession an implement of housebreaking,
             a wooden handle pry bar and 24” bolt cutters, in violation
             of G.S. 14-55.



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      As in Bollinger, the indictment charged the defendant with both of the

essential elements of the offense by asserting that defendant “ha[d] in [his] possession

an implement of housebreaking” and this possession was “without lawful excuse . . . .”

Thus, the mention of specific tools was “mere surplusage.” See Bollinger, 192 N.C.

App. at 246, 665 S.E.2d at 139-40.

      The trial court’s instructions to the jury on this charge stated, in pertinent

part, as follows:

                    The Defendant has also been charged with
             possession without lawful excuse of implements of
             housebreaking. For you to find the Defendant guilty of this
             offense the State must prove two things beyond a
             reasonable doubt.

                    First, that the Defendant was in possession of
             implements of housebreaking. A pry bar, bolt cutters and
             gloves are implements of house-breaking if you find from
             the evidence beyond a reasonable doubt that they are made
             and designed for the purpose of house-breaking or they are
             commonly carried and used by housebreakers or is [sic]
             reasonably adapted for such use.

                    ....

                   And, second, that there was no lawful excuse for the
             Defendant’s possession. The State must prove beyond a
             reasonable doubt that the Defendant intended to use the
             implements to break into a house or building or did use
             them for that purpose.

(Emphasis added.)




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          The above-quoted instruction confirms that the trial court properly instructed

the jury as to both essential elements of the offense. The mere fact that the court

mentioned three implements of housebreaking rather than two does not constitute

error.1

          Moreover, even assuming arguendo that there was a variance, the evidence —

as discussed above — supported a finding that Defendant had constructive possession

of the pry bar and the bolt cutters. Defendant’s possession of either the pry bar or

the bolt cutters was sufficient to convict him of possession of burglary tools, and both

of these tools were expressly mentioned in the indictment. As in Bollinger, the

discrepancy cited by Defendant “did not affect the burden of proof required of the

State or constitute a substantial change or variance from the indictment.” See

Bollinger, 192 N.C. App. at 246-47, 665 S.E.2d at 140.                   Thus, the trial court’s

instruction did not constitute plain error.

III. Injury to Personal Property

          Finally, Defendant argues that the trial court erred in denying his motion to

dismiss the two charges of injury to personal property for which he was convicted.

Specifically, he contends that (1) the indictment charging injury to personal property

of Vision was facially invalid because it did not identify Vision as an entity capable of

owning property; (2) there was a fatal variance between the indictment and the


          1
         Defendant does not dispute the fact that there was sufficient evidence presented at trial to
allow the jury to find that he possessed the work gloves.

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evidence at trial as to the charge of injury to Vision’s personal property because the

State’s evidence suggested that the damaged lock on the Barn door was actually

owned by Sutton; and (3) his mere presence at the scene was insufficient to support

a finding that Defendant was guilty of injury to the personal property of Sutton and

Vision.

       A. Facial Validity of Indictment

       Defendant contends that the portion of his indictment charging him with

injury to Vision’s personal property was facially invalid because the indictment did

not allege that Vision was capable of owning property. Although Defendant did not

assert this argument at trial, our Supreme Court has held that “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.” State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (citations

omitted), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). The Supreme Court

has made clear that

              [t]he identity of the owner of the property that the
              defendant allegedly injured is a material element of the
              offense of injury to personal property. For that reason, a
              criminal pleading seeking to charge the commission of
              crimes involving theft of or damage to personal property,
              including injury to personal property, must allege
              ownership of the property in a person, corporation, or other
              legal entity capable of owning property.




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                                   Opinion of the Court



State v. Ellis, 368 N.C. 342, 345, 776 S.E.2d 675, 677 (2015) (internal citations and

quotation marks omitted).

      In State v. Campbell, 368 N.C. 83, 772 S.E.2d 440 (2015), our Supreme Court

addressed the application of this principle in cases where the owner of the property

at issue is a church. The Court held that “alleging ownership of property in an entity

identified as a church or other place of religious worship, like identifying an entity as

a ‘company’ or ‘incorporated,’ signifies an entity capable of owning property[.]” Id. at

87, 772 S.E.2d at 444 (citation omitted).

      In the present case, the indictment issued on 13 October 2014 listed three

charges and stated as follows:

             BREAKING AND OR ENTERING A PLACE OF
             WORSHIP

             The jurors for the State upon their oath present that on or
             about the 19th day of February, 2014, in the County named
             above the defendant named above unlawfully, willfully and
             feloniously did break and enter a building occupied by
             Vision Phase III International Outreach Center that is a
             place of religious worship, located at 208 Raleigh Ave.,
             Greenville, NC, with the intent to commit a larceny
             therein, in violation of G.S. 14-54(A).

             POSSESSION OF BURGLARY TOOLS

             And the jurors for the State upon their oath present that
             on or about the 19th day of February, 2014, in the County
             named above the defendant named above unlawfully,
             willfully and feloniously did without lawful excuse have in
             the defendant’s possession an implement of housebreaking,
             a wooden handle pry bar and 24” bolt cutters, in violation


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                                  Opinion of the Court



             of G.S. 14-55.

             INJURY TO PERSONAL PROPERTY

             And the jurors for the State upon their oath present that
             on or about the 19th day of February, 2014, in the County
             named above the defendant named above unlawfully and
             willfully did wantonly injure personal property, a lock on
             the shed door of storage [sic] building, the property of
             Vision Phase III International Outreach Center, in
             violation of G.S. 14-160.

(Emphasis added.)

      Thus, the first of the three charges contained in the indictment — the breaking

or entering charge — identified Vision as “a place of religious worship[.]” The third

charge — injury to personal property of Vision — stated that Defendant “unlawfully

and willfully did injure personal property, a lock on the shed door of [a] storage

building, the property of Vision Phase III International Outreach Center[.]”

Therefore, by identifying Vision as a “place of religious worship” earlier in the

indictment and then subsequently listing Vision as the owner of the personal property

that Defendant damaged, the indictment comported with Campbell.

      A converse ruling requiring the State to have expressly identified Vision as a

place of public worship in each portion of the indictment containing a separate charge

would constitute a hypertechnical interpretation of the requirements for indictments

that we believe is inconsistent with applicable North Carolina caselaw on this issue.

See In re S.R.S., 180 N.C. App. 151, 153, 636 S.E.2d 277, 280 (2006) (“Our courts have



                                         - 22 -
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                                   Opinion of the Court



recognized that while an indictment should give a defendant sufficient notice of the

charges against him, it should not be subjected to hyper technical scrutiny with

respect to form.”). Accordingly, the indictment here is properly construed as alleging

that Vision — a place of religious worship — was an entity capable of owning

property.

       B. Fatal Variance Between Indictment and Evidence at Trial

       Defendant also argues that there was a fatal variance between the indictment

and the evidence at trial as to the ownership of the lock mechanism forming the basis

for the charge alleging injury to Vision’s personal property. The State asserts — and

Defendant concedes — that this issue was not properly preserved because he failed

to raise it in the trial court.

       “In order to preserve an issue for 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(a)(1). “This Court repeatedly has

held that a defendant must preserve the right to appeal a fatal variance.” State v.

Hill, __ N.C. App. __, __, 785 S.E.2d 178, 182 (2016).

       However, we elect to reach the merits of this argument pursuant to our

authority under Rule 2 of the North Carolina Rules of Appellate Procedure. Rule 2

states as follows:



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                                   Opinion of the Court



              To prevent manifest injustice to a party, or to expedite
              decision in the public interest, either court of the appellate
              division may, except as otherwise expressly provided by
              these rules, suspend or vary the requirements or provisions
              of any of these rules in a case pending before it upon
              application of a party or upon its own initiative, and may
              order proceedings in accordance with its directions.

N.C. R. App. P. 2.

       In State v. Gayton-Barbosa, 197 N.C. App. 129, 676 S.E.2d 586 (2009), we

invoked Rule 2 to review a similar fatal variance argument that had not been

adequately preserved for appellate review.         We reasoned that “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.” Id. at 135, 676 S.E.2d at 590. Because this type of alleged error is

“sufficiently serious to justify the exercise of our authority under Rule 2[,]” State v.

Campbell, __ N.C. App. __, __, 777 S.E.2d 525, 530 (2015) (quotation marks and

brackets omitted), we elect to exercise our discretion under Rule 2 and review this

issue. See Hill, __ N.C. App. at __, 785 S.E.2d at 182 (invoking Rule 2 to address

merits of defendant’s argument regarding fatal variance between indictment and

evidence at trial).

       Defendant contends that the evidence presented at trial tended to show that

the hasp affixed to the Barn door was owned by Sutton — rather than Vision — and



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                                  Opinion of the Court



that Vision merely owned a padlock securing the hasp. He further argues that

although the evidence showed that the hasp was damaged, the evidence did not show

that the padlock was injured as a result of the events of 19 February 2014.

      At trial, multiple witnesses testified that they noticed the lock on the Barn

door had been “busted into,” “pried open,” or “broken off.” Officer Bowen testified

regarding his observation of the padlock assembly on the Barn door as follows:

                    [OFFICER BOWEN:] . . . . As we were going back to
             the barn, there’s a barn kind of in the center of this fenced-
             in area that we were at. We noticed that the door was open
             on this barn. Upon closer inspection of the door, you go up
             – and it was padlocked. You know, on a padlock usually you
             have one side that’s screwed to the door frame and the
             other to the door. Well, it appeared that one side of the
             frame where the lock [sic] had been pried off. So basically
             you could open the door – the whole padlock assembly had
             come off with it. So it looked like it had been forced open
             based on what I could see.

      The State also presented evidence from Detective Smith on this subject.

                   [PROSECUTOR:] What did you do next?

                   [DETECTIVE SMITH:] Continued to search around.
             There was a lock that appeared to be broken and we cleared
             the [Barn].

                  [PROSECUTOR:] Well, let me ask you about that.
             You mentioned a lock; where was the lock?

                   [DETECTIVE SMITH:] By one of [sic] doors to the
             [Barn].

                   ....



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                                   Opinion of the Court



                     [PROSECUTOR:] Is this the same [Barn] where the
              lock appeared to have been broken?

                     [DETECTIVE SMITH:] Yes, sir.

        Pastor William Harper also testified during direct examination regarding this

lock.

                   [PROSECUTOR:] I’m showing you now what’s been
              marked State’s Exhibit 9. Can you identify that?

                     [PASTOR HARPER:] Yeah, that’s the door of the
              barn that sits on the left as you look at it, and it’s a lock
              that’s been broken off.

              ....

                    [PROSECUTOR:] Now, when is the last time you
              had seen the [Barn]?

                    [PASTOR HARPER:] The day before; I normally do
              a normal check through the whole –

                     [PROSECUTOR:] And how do you normally secure
              that – or how is it normally secured?

                    [PASTOR HARPER:] Well, lock and key; it’s a lock
              and key that we use.

        Finally, Jonathan Sutton, the owner of Sutton Amusement Company, testified

regarding the ownership of the lock on the door of the Barn.

                     [PROSECUTOR:] You mentioned the [Barn] that, I
              think you said, was jimmied or broken in – busted into, I
              think, is what you said; can you describe that building for
              me?

                     [SUTTON:] It’s a small storage building on cinder


                                          - 26 -
                                   STATE V. MCNAIR

                                   Opinion of the Court



            blocks. I would estimate in size maybe, you know, twelve
            by ten, if even.

                      [PROSECUTOR:] And what do you keep in there?

                   [SUTTON:] The church – I allow the church to
            utilize that [Barn]. I don’t know what would have been in
            that [Barn], the church uses it.

                  [PROSECUTOR:] Do you normally secure that or
            does somebody else secure that [Barn]?

                      [SUTTON:] Typically the church, you know, secures
            it.

      While admittedly the evidence presented at trial regarding the damage to the

lock on the door of the Barn was not a model of clarity, viewing the evidence in the

light most favorable to the State — as we must — we believe that sufficient evidence

was presented to allow the jury to find that Vision owned the lock that secured the

Barn door and that this lock was damaged. Thus, we cannot say that a variance

existed between the charge alleged in the indictment and the evidence at trial.

Accordingly, this argument is overruled.

      C. Sufficiency of Evidence as to Defendant’s Convictions for Injury to
         Personal Property

      Finally, Defendant contends that his mere presence at the scene of the break-

in was insufficient to support his conviction of injury to personal property. Once

again, we disagree.




                                          - 27 -
                                  STATE V. MCNAIR

                                  Opinion of the Court



      The essential elements of injury to the personal property of another are “(1)

that personal property was injured; (2) that the personal property was that of

another, i.e., someone other than the person or persons accused; (3) that the injury

was inflicted wantonly and wil[l]fully; and (4) that the injury was inflicted by the

person or persons accused.” In re Meaut, 51 N.C. App. 153, 155, 275 S.E.2d 200, 201

(1981) (quotation marks omitted).

      As discussed above, the evidence at trial — when viewed in the light most

favorable to the State — was that (1) Sutton secured the main gate with a padlock;

(2) Vision secured the Barn door with a padlock of its own; (3) officers received a 911

call that an individual was inside the fenced-in area at 1:00 a.m.; (4) Defendant was

found by officers apparently attempting to leave the premises by climbing the brick

wall; (5) a pry bar was found on the ground next to the Barn and bolt cutters were

located on the ground outside the main gate; and (6) broken locks were discovered on

the ground next to the main gate and the Barn. Therefore, we reject Defendant’s

argument that the evidence simply showed his mere presence at the scene. To the

contrary, the evidence presented by the State was sufficient to allow the jury to find

that he was guilty of injury to the personal property of both Vision and Sutton.

                                    Conclusion

      For the reasons stated above, we vacate Defendant’s conviction of felony

breaking or entering into a place of religious worship under N.C. Gen. Stat. § 14-54.1



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                                         Opinion of the Court



and remand for entry of judgment on the lesser-included offense of felony breaking or

entering and resentencing. We conclude that Defendant received a fair trial free from

error as to his remaining convictions.2

       NO ERROR IN               PART;     VACATED         IN    PART;      REMANDED           WITH
       INSTRUCTIONS.

       Chief Judge McGEE and Judge BERGER concur.




       2 Defendant also argues in his brief that the trial court improperly added an extra point to his
prior record level during sentencing, and the State concedes error on this issue. However, this
argument was linked to Defendant’s conviction under N.C. Gen. Stat. § 14-54.1. Because we are
vacating his conviction for that offense and remanding for resentencing, this argument is moot.

                                                - 29 -
