State v. Hill ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-620
Filed 19 December 2023
Onslow County, No. 20CRS50692
STATE OF NORTH CAROLINA
v.
DAVID JONATHAN HILL, Defendant.
Appeal by defendant from judgment entered 15 December 2021 by Judge
Imelda J. Pate in Superior Court, Onslow County. Heard in the Court of Appeals 27
February 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Christopher R. McLennan, for the State.
Caryn Strickland for defendant-appellant.
STROUD, Chief Judge.
Defendant appeals his convictions for larceny from a merchant by product code
fraud and for misdemeanor larceny, arguing the trial court erred in denying his
motion to dismiss based on insufficiency of the evidence and fatal variances in the
indictments. Defendant also contends the trial court ordered Defendant to pay an
incorrect amount of restitution. Because the evidence did not show Defendant
“created” a product code “for the purpose of fraudulently obtaining goods or
STATE V. HILL
Opinion of the Court
merchandise from a merchant at less than its actual sale price” within the plain
meaning of North Carolina General Statute § 14-72.11(3), the charge of larceny from
a merchant should have been dismissed. There was no fatal variance in the
indictment as to the remaining misdemeanor larceny since any erroneous statements
in the indictment were mere surplusage. However, the trial court erroneously
included property returned to Walmart when calculating the restitution Defendant
should pay. Therefore, we find no error as to his conviction for misdemeanor larceny,
vacate Defendant’s conviction of larceny from a merchant, and remand to the trial
court for re-sentencing and to enter a new order of restitution.
I. Background
On 14 February 2020, a Walmart Asset Protection Manager (“manager”) saw
Defendant “placing a sticker over the top of a box” in the fabrics department of a
Jacksonville, North Carolina Walmart. The boxed item was identified as a Cricut Air
2 sewing machine (“Cricut”). Because Defendant’s behavior was unusual, the
manager followed Defendant through the store. Defendant put the box into a
shopping cart and went to the electronics department, where he took several items,
then moved along to the women’s apparel department. Stopping between two racks,
Defendant concealed unpurchased electronics inside a backpack. The manager
testified these items included, “several sets of headphones, some earbuds, a movie,
[and] some little odds and ends that [Defendant] just grabbed off the shelf[.]”
Once the electronics were in the backpack, Defendant put the backpack on and
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pushed his cart with the Cricut in it to self-checkout. At checkout, Defendant scanned
the $7.98 product code he had placed on the Cricut box and paid $7.98 for the $227.00
Cricut. After Defendant passed the point of sale, the manager approached, identified
himself as a Walmart representative, and asked Defendant for his identification,
which Defendant provided. However, when the representative confronted Defendant
about not paying the correct price for the Cricut, and asked to talk to Defendant about
it, Defendant shouted “[d]on’t touch me” and ran out of the store wearing the
backpack full of electronics, leaving the Cricut behind in the shopping cart still inside
the store.
The Walmart manager called law enforcement, who investigated the theft the
same day. To help law enforcement in the investigation, the manager provided “a
receipt of all the merchandise that was taken, as well as the receipt for what the
defendant actually paid for in self-checkout.” These receipts were admitted into
evidence. At trial, the manager testified, based on these receipts, that the items
Defendant placed in his backpack included four sets of headphones, a pack of Bic
lighters, a John Wick DVD, a webcam, and a portable battery. The total value of the
merchandise reported stolen, including the Cricut, was $477.15. The items
Defendant put in his backpack were never recovered.
The manager testified the product code Defendant scanned on the Cricut box
was “for a little shoe Tupperware that you would keep a single pair of shoes in[.]” A
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Opinion of the Court
photograph of this product code was admitted at trial and is included in the record.1
The product code on the sticker is legible, although the sticker is wrinkled, torn on
the side, and slightly curled on the side of the Cricut box. According to the manager,
the Tupperware products were sold in the department located next to the fabrics and
crafts department, the same place where the manager saw Defendant placing the
sticker on the Cricut.
Defendant was indicted for (1) felony larceny from a merchant by product code
fraud under North Carolina General Statute Section 14-72.11(3) and (2)
misdemeanor larceny under North Carolina General Statute Section 14-72(a). The
trial was held on 23-24 August 2021, and the State’s evidence showed the facts
summarized above. At trial, Defendant made a motion to dismiss at the close of the
State’s evidence, made no arguments to support his motion, and the motion was
subsequently denied. Defendant renewed the motion to dismiss at the close of all
evidence, made no arguments to support his motion, and was again denied.
The jury returned a verdict finding Defendant guilty of both larceny from a
merchant by product code fraud under North Carolina General Statute Section 14-
72.11(3), a felony, and misdemeanor larceny under Section 14-47(a). The trial court
entered the judgment and ordered Defendant to pay $477.15 in restitution.
1 The product code is commonly known as a UPC, or “Universal Product Code -- a combination of a bar
code and numbers by which a scanner can identify a product and usu[ally] assign a price[.]” Merriam-
Webster’s Collegiate Dictionary 1369 (11th ed. 2003).
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Defendant gave oral notice of appeal.
II. Motion to Dismiss
Defendant contends the trial court erred in denying his motion to dismiss as to
both charges.
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) (citation omitted).
“Under a de novo review, the court considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628,
632-33, 669 S.E.2d 290, 294 (2008) (citation and quotation marks omitted).
“Upon defendant’s motion for dismissal, the 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. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (2000) (citation omitted). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Smith, 186 N.C. App. at 62, 650 S.E.2d at 33 (citation and quotation
marks omitted). “In making its determination, the trial court must consider all
evidence admitted, whether competent or incompetent, in the light most favorable to
the State, giving the State the benefit of every reasonable inference and resolving any
contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
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(1994) (citation omitted).
B. N.C. Gen. Stat. § 14-72.11We first address Defendant’s argument as to the charge of felony larceny by a
product code. North Carolina General Statute Section 14-72.11 defines felonious
larceny against a merchant as follows:
A person is guilty of a Class H felony if the person commits
larceny against a merchant under any of the following
circumstances:
(1) By taking property that has a value of more than two
hundred dollars ($200.00), using an exit door erected and
maintained to comply with the requirements of 29 C.F.R. §
1910.36 and 29 C.F.R. § 1910.37, to exit the premises of a
store.
(2) By removing, destroying, or deactivating a component
of an antishoplifting or inventory control device to prevent
the activation of any antishoplifting or inventory control
device.
(3) By affixing a product code created for the purpose of
fraudulently obtaining goods or merchandise from a
merchant at less than its actual sale price.
N.C. Gen. Stat. § 14-72.11 (2019) (emphasis added). Defendant’s first argument as
to sufficiency of the evidence hinges on the meaning of the word “created” as used in
subsection 3 of the statute. This presents an issue of statutory interpretation and is
a case of first impression as to the meaning of the word “created” under North
Carolina General Statute Section 14-72.11(3).
“Statutory interpretation properly begins with an examination of the plain
words of the statute.” State v. Carr, 145 N.C. App. 335, 343, 549 S.E.2d 897, 902
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(2001) (citation and quotation marks omitted). “When the language of a statute is
clear and unambiguous, there is not room for judicial construction and the courts
must give the statute its plain and definite meaning, and are without power to
interpolate, or superimpose, provisions and limitations not contained therein.” Id.(citation and quotation marks omitted). “If the statutory language is clear and
unambiguous, the court eschews statutory construction in favor of giving the words
their plain and definite meaning. When, however, a statute is ambiguous, judicial
construction must be used to ascertain the legislative will.” State v. Beck, 359 N.C.
611, 614, 614 S.E.2d 274, 277 (2005) (citations and quotation marks omitted).
“Statutory language is ambiguous if it is fairly susceptible of two or more meanings.”
Purcell v. Friday Staffing, 235 N.C. App. 342, 347, 761 S.E.2d 694, 698 (2014)
(citation and quotation marks omitted). “We generally construe criminal statutes
against the State. However, this does not require that words be given their narrowest
or most strained possible meaning. A criminal statute is still construed utilizing
common sense and legislative intent.” Beck, 359 N.C. at 614, 614 S.E.2d at 277(citations and quotation marks omitted).
The pertinent part of the statute for purposes of our analysis as to larceny
from a merchant by product code fraud states that “[a] person is guilty of a Class H
felony if the person commits larceny against a merchant . . . [b]y affixing a product
code created for the purpose of fraudulently obtaining goods or merchandise from a
merchant at less than its actual sale price.” N.C. Gen. Stat. § 14-72.11(3) (emphasis
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added). This statute, Section 14-72.11, was first adopted in 2007, and subsection (3)
has not been amended since its adoption. Compare N.C. Gen. Stat. § 14-72.11(3)
(2019) with N.C. Gen. Stat. § 14-72.11(3) (2007).
Defendant argues the word “created,” as used in Section 14-72.11, is
synonymous with “made” and refers to behavior found in “especially sophisticated
and pernicious larceny schemes . . . where individuals make fake barcodes to get items
at cheaper prices.” (Emphasis added.) Under Defendant’s interpretation of the
statute, a product code made by the retailer or manufacturer for the legitimate
purpose of identifying the merchandise and its sales price was not “created for the
purpose of fraudulently obtaining goods or merchandise . . . at less than its actual
sale price.” N.C. Gen. Stat. § 14-72.11(3). Defendant contends his conduct in the
store does not fall within the statute because he transferred the product code from
another product and did not “create” it. Defendant argues that his conduct at most
falls under a misdemeanor statute, North Carolina General Statute Section 14-
72.1(d), which states:
[w]hoever, without authority, willfully transfers any price
tag from goods or merchandise to other goods or
merchandise having a higher selling price or marks said
goods at a lower price or substitutes or superimposes
thereon a false price tag and then presents said goods or
merchandise for purchase shall be guilty of a
misdemeanor[.]
N.C. Gen. Stat. § 14-72.1(d) (2019). The State, on the other hand, argues for a more
expansive interpretation, asserting that “created,” as used in Section 14-72.11(3),
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should also include cases “when an individual generates or repurposes a product code
to commit a larceny from a merchant[.]” (Emphasis added.) To decide the question,
we first look at the plain meaning of the word “create;” second, examine the word
“create” within its context; and third, look at North Carolina larceny-related statutes
in pari-materia. See Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App.
351, 358, 768 S.E.2d 23, 28 (2014) (“It is also a well-established principle of statutory
construction that statutes in pari materia must be read in context with each other.”
(quotation marks and citations omitted)).
a. Plain meaning of “create”
We begin with the plain meaning of the word “create.” See State v. Carr, 145
N.C. App. at 343, 549 S.E.2d at 902. Three dictionary definitions of “create” could
potentially apply here: (1) “to bring into existence,” (2) “to invest with a new form,
office, or rank” or (3) “to produce or bring about by a course of action or behavior[.]”
Merriam-Webster’s Collegiate Dictionary 293 (11th ed. 2003). The first definition,
“to bring into existence,” is the most commonly used definition of “create,” and in the
context of Section 14-72.11(3), would mean a defendant could only be convicted if they
affixed a product code specifically made or “[brought into existence] for the purpose
of fraudulently obtaining goods or merchandise from a merchant at less than its
actual sale price.” See N.C. Gen. Stat. § 14-72.11(3); see also Merriam-Webster
Collegiate Dictionary 293 (11th ed. 2003). The second definition, “to invest with a
new form” supposes a situation where the form of the label is changed to the extent
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that it takes on a new form different than the original product code. See Merriam-
Webster Collegiate Dictionary 293 (11th ed. 2003). The third definition, “to produce
or bring about by a course of action or behavior” still requires something to be
“produced” or “brought about” by an actor. Id.Said differently, the first two plain dictionary definitions of “create” seem to
contemplate (1) bringing something into existence that did not exist before, or (2)
changing the form of a thing, to the extent something new and different is created.
Id. The third definition, however, “bringing about by a course of action,” is closest to
the State’s proposed definition of “repurposing” a product code by removing it from
one item and affixing it to another item. Id. Looking at the word “create” in isolation,
an argument could be made that the word is “fairly susceptible of two . . . meanings.”
See Purcell, 235 N.C. App. at 347, 761 S.E.2d at 698 (“Statutory language is
ambiguous if it is fairly susceptible of two or more meanings.”). But words in a statute
are not construed in isolation, so we must next look at the word in context. See Dolan
v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“The definition of words in isolation . .
. is not necessarily controlling in statutory construction. A word in a statute may or
may not extend to the outer limits of its definitional possibilities. Interpretation of a
word or phrase depends upon reading the whole statutory text, considering the
purpose and context of the statute, and consulting any precedents or authorities that
inform the analysis.” ).
b. “Create” in Context
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Opinion of the Court
The meaning of a word can change depending on its context. For example,
the word “fire” can be a noun describing a pile of burning wood or a verb describing
the act of terminating an employee from a job. See Merriam-Webster’s Collegiate
Dictionary 470-471 (11th ed. 2003). Because the actual meaning of a word may
sometimes become obvious when the word is used in a sentence, we next consider the
use of the word “created” within the context of the statute to determine if the meaning
is indeed ambiguous. See C Investments 2, LLC v. Auger, 383 N.C. 1, 10, 881 S.E.2d
270, 278 (2022) (“Ordinary rules of grammar apply when ascertaining the meaning
of a statute, and the meaning must be construed according to the context and
approved usage of the language.” (citation and quotation marks omitted)).
The full sentence in the statute, including the opening phrase, is:
A person . . . commits larceny against a merchant under
any of the following circumstances:
....
(3) By affixing a product code created for the purpose of
fraudulently obtaining goods or merchandise from a
merchant at less than its actual sale price.
N.C. Gen. Stat. § 14-72.11(3).
Here, the phrase “created for the purpose of” modifies and characterizes the
phrase “product code”2 and means that an actor, the creator of the product code, must
2 The technical grammatical terminology for the clause “created for the purpose of” as used in this
statute is a reduced restrictive relative clause. It is a specific type of adjective phrase modifying
“product code” in the statute.
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Opinion of the Court
have had a specific purpose for creating the product code, namely a purpose or aim to
“fraudulently obtain[] goods or merchandise from a merchant at less than its actual
sale price.” Id. We next consider the grammatical construction of the statute to
identify who is doing the “affixing” and who is doing the “creating.” See id.The “person” doing the “affix[ing]” in this sentence can only be the defendant
charged with committing the crime of larceny because larceny in this statute is
achieved “[b]y affixing a product code[.]” Id. The next clause, “created for the purpose
of fraudulently obtaining goods or merchandise at less than its actual sale price” uses
the passive voice to modify the noun “product code.” Id. It is the passive use of
“created” that tells us the defendant who “affixes” the price code need not necessarily
be the same person who physically “created” the product code because the phrase “for
the purpose of” modifies “created,” not “affixed.” Id. Said differently, the “affixing”
defendant may or may not have personally “created” the product code; however, the
creator of the product code must have had the statutorily defined fraudulent purpose
in creating the code. Id.Thus, under the language of the statute, a defendant commits this crime if he
(1) affixes the product code and (2) the product code was “created for the purpose of
fraudulently obtaining goods or merchandise from a merchant at a reduced price.”
Id. Reading the word “created” in the context of the statute supports Defendant’s
definition of “created,” and is more appropriate here because it points to the moment
that the product code was “brought into existence,” not the moment it was relocated
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by the actor affixing it to another product. See id.; see also Merriam-Webster’s
Collegiate Dictionary 293 (11th ed. 2003).
c. In pari materia review of North Carolina’s larceny-related statutes
But if the awkward wording and grammatical structure of the statute leave
any questions of ambiguity, this interpretation of “create,” based on the plain reading
of the statute, is supported by an in pari materia review of the statutory framework
for various types of larceny as defined in the General Statutes within Subchapter V,
entitled “Offenses Against Property” and in Article 16, entitled “Larceny.” See N.C.
Gen. Stat. § 14-70 (2019) et seq.; see State v. Mayo, 256 N.C. App. 298, 301, 807 S.E.2d
654, 657 (2017) (“In discerning the intent of the legislature statutes in pari materia
should be construed together and harmonized whenever possible.” (citation and
quotation marks omitted)). We will therefore consider N.C. Gen. Stat. Section 14-
72.11(3) in the context of the other related larceny statutes.
“[A] statute must be strictly construed with regard to the evil which it is
intended to suppress and interpreted to give effect to the legislative intent.” State v.
Stephenson, 267 N.C. App. 475, 479, 833 S.E.2d 393, 397 (2019) (citation and
quotation marks omitted).
The structure and specificity of our larceny statutes, and the context in which
Section 14-72.11(3) was enacted, make it clear that “created” must be interpreted to
mean “brought into existence” and not “repurposed” as the State argues, because
“repurposing” is already covered under another statute. See N.C. Gen. Stat. § 14-
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Opinion of the Court
72.1(d) (describing the action of “willfully transferring” (or repurposing) a price tag
from one item to another to get a lower price). In general, larceny is “(1) the taking
of the property of another; (2) carrying it away; (3) without the owner’s consent; and
(4) with the intent to permanently deprive the owner of the property.” State v. Speas,
265 N.C. App. 351, 352, 827 S.E.2d 548, 550 (2019) (citations omitted). North
Carolina’s larceny-related statutes detail specific methods of committing larceny
against specific property owners and delineate the particular types of property
included in the offense. For example, Section 14-72(a) establishes felony larceny as
larceny of goods exceeding $1,000 in value, and misdemeanor larceny as larceny of
goods under that threshold, except as provided in subsections (b) and (c); subsection
(c) sets out specific conduct by which a person might commit larceny and defines when
such conduct rises to the level of a felony. See N.C. Gen. Stat. § 14-72(b)-(c) (2019).
This trend continues through Article 16: the General Assembly delineates specific
acts and circumstances by which a person might commit larceny and larceny-related
offenses and whether those specific acts constitute a misdemeanor or felony. See, e.g.,
N.C. Gen. Stat. § 14-72.5(a) (2019) (“If any person shall take and carry away motor
fuel valued at less than one thousand dollars ($1,000) from an establishment where
motor fuel is offered for retail sale with the intent to steal the motor fuel, that person
shall be guilty of a Class 1 misdemeanor.” (emphasis added)); N.C. Gen. Stat. § 14-
72.6 (2019) (“A person is guilty of a Class I felony if he commits . . . [l]arceny of goods
from a permitted construction site.” (emphasis added)). The structure of Article 16
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Opinion of the Court
indicates that the specific act defendant is alleged to have committed dictates which
specific type of larceny the defendant may have committed. See N.C. Gen. Stat. § 14-
70 (2019) et seq.
Defendant was correct that the State’s evidence was insufficient to convict him
of a felony under Section 14-72.11(3), because his conduct was, at most, punishable
as a misdemeanor. See also N.C. Gen. Stat. § 14-72.1(d) (“Whoever, without
authority, willfully transfers any price tag from goods or merchandise to other goods
or merchandise having a higher selling price or marks said goods at a lower price or
substitutes or superimposes thereon a false price tag and then presents said goods or
merchandise for purchase shall be guilty of a misdemeanor[.]” (emphasis added)).
Here, two statutes criminalize the similar acts of purchasing a product at a
fraudulently reduced price, see N.C. Gen. Stat. §§ 14-72.11(3), 14-72.1(d), but for the
purposes of this case, an important distinction between the two statutes lies in the
nature of the “label,” whether it was simply a transferred price tag, regardless of how
it was created, or if it was a product code “created for the purpose of” fraudulent
activity. 3 Compare N.C. Gen. Stat. § 14-72.1(d) (describing the price tag required for
the misdemeanor offense as “any price tag”) with N.C. Gen. Stat. § 14-72.11(describing the “product code” necessary for the offense as being created for the
purpose of fraud).
3 Here, we use the term “label” to include both product codes and price tags.
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The General Statutes provide no definition for either “product code” or “price
tag,” so we must use the ordinary definitions of these terms. See Surgical Care
Affiliates, LLC v. N.C. Indus. Comm’n, 256 N.C. App. 614, 621, 807 S.E.2d 679, 684
(2017) (“When a statute employs a term without redefining it, the accepted method
of determining the word’s plain meaning is not to look at how other statutes or
regulations have used or defined the term–but to simply consult a dictionary.”).
A “price tag” is defined as “a tag on merchandise showing the price at which it
is offered for sale[.]” Merriam-Webster’s Collegiate Dictionary 985 (11th ed. 2003).
Prior cases have used the term “price tag” with its ordinary meaning: a tag affixed
to a product to show the price of the product. See, e.g., State v. Odom, 99 N.C. App.
265, 269, 393 S.E.2d 146, 149 (1990) (describing a price tag with the brand-name,
item code and number, followed by the price). The price tag may show a hand-written
or typed price, or it may show the price by using a “product code” instead. A “product
code” is defined as a “Universal Product Code,” or UPC, which is “a combination of a
bar code and numbers by which a scanner can identify a product and usu[ally] assign
a price[.]” Merriam-Webster’s Collegiate Dictionary 1369 (11th ed. 2003). Thus, it
would be possible for an item offered for sale to have two separate indications of price
– both a price tag and a product code – or an item may have only a price tag, or only
a product code, or the price tag and the product code may be the same thing.
Here, the evidence shows the product code was on a sticker which also served
as the price tag. Neither State nor Defendant contends there is any relevant
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difference between these two terms based on the evidence in this case. The tag
affixed to the Cricut box was a partially torn rectangular sticker – commonly known
as a “price tag” – with a printed product code, or a “combination of a bar code and
numbers by which a scanner can identify a product.” Id. Based on the evidence, this
tag was both the price tag and product code for the Tupperware box, and it was
substituted for the price tag and product code of the Cricut. Walmart’s scanner
identified the item as a Tupperware box priced at $7.98 based on the “product code”
printed on the “price tag.”
Assuming arguendo that “created” in Section 14-72.11(3) could apply to
repurposed or transferred product codes or to price tags obtained from another
product, there would have been no need for two separate statutes, one a misdemeanor
and the other a felony. N.C. Gen. Stat. §§ 14-72.1 (misdemeanor), 14-72.11 (felony).
Indeed, it would be absurd to interpret the statutes as creating both a misdemeanor
and felony achieved by the exact same action. See Duplin Cnty. Bd. of Educ. v. Duplin
Cnty. Bd. of Cnty. Comm’rs, 201 N.C. App. 113, 119, 686 S.E.2d 169, 173 (2009) (“It
is well settled that in construing statutes courts normally adopt an interpretation
which will avoid absurd or bizarre consequences, the presumption being that the
legislature acted in accordance with reason and common sense and did not intend
untoward results. Accordingly, an unnecessary implication arising from one
statutory section, inconsistent with the express terms of another on the same subject,
yields to the expressed intent.” (citations, quotation marks, and brackets omitted)).
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Opinion of the Court
Because the larceny statues are explicit about the conduct which constitutes
each level of offense, we conclude the word “created” in Section 14-72.11(3) applies to
the specific scenario where (1) an actor (the defendant or another person) created a
false product code “for the purpose of fraudulently obtaining goods or merchandise at
a reduced price” and (2) the defendant affixed it to the merchandise. Section 14-
72.11(3) does not apply where a defendant transfers a legitimate product code printed
on the price tag from one product to another, which is already punishable as a
misdemeanor under Section 14-72.1. Compare N.C. Gen. Stat. § 14-72.11(3), with
N.C. Gen. Stat. § 14-72.1.
Even viewed “in the light most favorable to the State, giving the State the
benefit of every reasonable inference and resolving any contradictions in its favor[,]”
Rose, 339 N.C. at 192, 451 S.E.2d at 223, there is insufficient evidence of larceny from
a merchant by product code fraud because there is no evidence the product code that
was affixed was “created for the purpose of fraudulently obtaining goods or
merchandise from a merchant at less than its actual sale price.” N.C. Gen. Stat § 14-
72.11(3). The trial court erred by denying Defendant’s motion to dismiss as to the
charge of larceny from a merchant by product code fraud.
III. Variance in Indictment
We still must address Defendant’s conviction for misdemeanor larceny under
North Carolina General Statute Section 14-72(a). N.C. Gen. Stat. § 14-72(a).
Defendant argues, “[t]he trial court erred in denying [Defendant’s] motion to dismiss
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because there were fatal variances between the indictment and the evidence
presented at trial.”4 Defendant specifically argues the indictment alleged he took two
Cricuts, and at trial, the State only proved Defendant took one machine. Defendant
does not, however, argue that the indictment otherwise failed to allege that he
committed misdemeanor larceny of the other electronic items he placed in the
backpack; his argument is limited to the reference to two Cricuts, where the evidence
showed only one Cricut was taken.
A. Standard of Review
“We review de novo the issue of a fatal variance.” State v. Clagon, 279 N.C.
App. 425, 431, 865 S.E.2d 343, 347 (2021). “Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment for that of the
lower tribunal.” Williams, 362 N.C. at 632-33, 669 S.E.2d at 294 (citations and
quotations omitted).
B. Fatal Variance
Generally, “the evidence in a criminal case must correspond with the
allegations of the indictment which are essential and material to charge the offense.”
State v. Simmons, 57 N.C. App. 548, 551, 291 S.E.2d 815, 817 (1982) (emphasis added)
4 The State argues this issue was not preserved for appellate review under North Carolina Rules of
Appellate Procedure 10. We note, “Our Supreme Court recently clarified that merely moving to
dismiss at the proper time under Rule 10(a)(3) preserves all issues related to the sufficiency of the
evidence for appellate review. [An indictment] variance-based challenge is essentially, a contention
that the evidence is insufficient to support a conviction.” State v. Clagon, 279 N.C. App. 425, 431, 865
S.E.2d 343, 347 (2021) (emphasis in original) (citations, quotations, and brackets omitted).
Defendant’s general motions to dismiss, therefore, preserved his variance challenge for review.
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STATE V. HILL
Opinion of the Court
(citation and quotation marks omitted). This rule is based on “the obvious
requirements that the accused . . . be definitely informed as to the charges against
him, so that he may be enabled to present his defense and be protected against
another prosecution for the same offense.” Id. (citation omitted). “However, a
variance will not result where the allegations and proof, although variant, are of the
same legal signification. An immaterial variance in an indictment is not fatal.” Id.
at 551, 291 S.E.2d at 817-18 (citations, quotation marks, and brackets omitted). An
indictment need only “reasonably notif[y] [a] defendant of the crime for which he was
being charged by plainly describing who did what and when and by indicating which
statute was violated by such conduct.” State v. Sturdivant, 304 N.C. 293, 311, 283
S.E.2d 719, 731 (1981) (emphasis in original). “[T]o be fatal, a variance must relate
to an essential element of the offense. Alternately, when an averment in an
indictment is not necessary in charging the offense, it will be deemed to be
surplusage.” State v. Bacon, 254 N.C. App. 463, 467-68, 803 S.E.2d 402, 406 (2017)
(citation, quotation marks, and original brackets omitted).
Here, there was a variance between the indictment and the State’s evidence.
The indictment alleged:
[T]hat on or about [14 February 2020] and in Onslow
County [Defendant] unlawfully and willfully did steal,
take, and carry away 2 Cricut sewing machines, 1 pack of
3 BIC lighters, 1 John Wick Movie DVD, 4 sets of
headphones, 1 webcam, 1 FM Transmitter, 1 BW 10k gray
battery pack, and 1 Anker battery pack, the personal
property of Wal-Mart Stores, INC., a Corporation d/b/a
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STATE V. HILL
Opinion of the Court
Walmart Store, such property having a value of $477.15.
(Emphasis added.) The indictment alleged Defendant violated North Carolina
General Statute Section 14-72(a) (a misdemeanor) by this conduct, and, the evidence
at trial indicates Defendant only took one Cricut machine.
Defendant asserts this variance is fatal and his motion to dismiss should have
been granted. We disagree. The indictment’s allegation that Defendant took 2 Cricut
sewing machines is “surplusage” and “not necessary in charging the offense” of
misdemeanor larceny. See Bacon, 254 N.C. App. at 468, 803 S.E.2d at 406.
Defendant was charged with misdemeanor larceny in violation of North
Carolina General Statute Section 14-72(a). N.C. Gen. Stat. § 14-72(a) (2019). “The
essential elements of larceny are: (1) the taking of the property of another; (2)
carrying it away; (3) without the owner’s consent; and (4) with the intent to
permanently deprive the owner of the property.” Speas, 265 N.C. App. at 352, 827
S.E.2d at 550. Reading the indictment without reference to the 2 Cricut sewing
machines, the indictment states:
[T]hat on or about the date of offense shown and in Onslow
County [Defendant] unlawfully and willfully did steal,
take, and carry away . . . 1 pack of 3 BIC lighters, 1 John
Wick Movie DVD, 4 sets of headphones, 1 webcam, 1 FM
Transmitter, 1 BW 10k gray battery pack, and 1 Anker
battery pack, the personal property of Wal-Mart Stores,
INC., a Corporation d/b/a Walmart Store, such property
having a value of $477.15.
This indictment, even without mention of the Cricut machines, still alleges the four
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STATE V. HILL
Opinion of the Court
essential elements of larceny. See id.; see also Bacon, 254 N.C. App. at 470-71, 803
S.E.2d at 408 (holding an indictment is sufficient to allege larceny after omitting a
variance between the property alleged to have been taken and the evidence proven at
trial).5
Here, the indictment “definitely inform[s Defendant] as to the charges against
him, so that he may be enabled to present his defense and . . . be protected against
another prosecution for the same offense.” Simmons, 57 N.C. App. at 551, 291 S.E.2d
at 817.
Therefore, the variance between the evidence presented at trial and the
indictment is not fatal. See id. at 551, 291 S.E.2d at 817-18. The trial court did not
err by denying Defendant’s motion to dismiss as to his conviction for misdemeanor
larceny.
IV. Restitution
Finally, Defendant makes an argument as to the amount of restitution. “On
5 We also note fatal variances between the indictment and the evidence offered at trial as to the
property taken tend to arise where property is inadequately described by the use of “general and
broadly comprehensive words,” see State v. Ingram, 271 N.C. 538, 542-44, 157 S.E.2d 119, 123-24
(1967) (noting fatal variance where property taken described as “merchandise, chattels, money,
valuable securities and other personal property”); where the property proven to be stolen at trial
deviates entirely from the property alleged in the indictment, see Simmons, 57 N.C. App. at 552, 291
S.E.2d at 818 (reversing trial court’s judgment where indictment alleged the defendant stole eight
freezers with unique serial numbers, but evidence of only one freezer at trial was shown and the serial
number did not match any of the alleged eight freezers); or where the property is alleged to be owned
by one party but at trial is proven to be owned by another. See Bacon, 254 N.C. App. at 467-71, 803
S.E.2d at 406-08. The present case is dissimilar, because the indictment specifically alleged several
items were taken, these items were proven at trial, and there is only a variance as to the quantity of
one item which is not a “necessary element of the offense of which the defendant is found guilty.” State
v. Clark, 208 N.C. App. 388, 390, 702 S.E.2d 324, 326 (2010).
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STATE V. HILL
Opinion of the Court
appeal, we review de novo whether the restitution order was supported by evidence
adduced at trial or at sentencing.” State v. Wright, 212 N.C. App. 640, 645, 711 S.E.2d
797, 801 (2011) (citation and quotation marks omitted). “Under a de novo review, the
court considers the matter anew and freely substitutes its own judgment for that of
the lower tribunal.” Williams, 362 N.C. at 632-33, 669 S.E.2d at 294.
Here, the trial court ordered Defendant to pay restitution of $477.15. Based
on the evidence, this amount includes the value of the Cricut and the various items
in Defendant’s backpack when he fled Walmart. But the State acknowledges
Defendant left the Cricut behind in the cart when he ran from the store. The other
items in the backpack were not recovered. Our statutes governing restitution only
require Defendant to repay Walmart “for any injuries or damages arising directly and
proximately” by Defendant’s larceny. N.C. Gen. Stat. § 15A-1340.34 (2019). The trial
court must consider the return of property to the injured owner and the condition in
which that property was returned. See id. (“In determining the amount of
restitution, the court shall consider . . . in the case of an offense resulting in the
damage, loss or destruction of property of a victim: [r]eturn of the property to the
owner of the property or someone designated by the owner[.]”)
We therefore reverse the judgment as to the amount of restitution ordered and
remand for entry of a judgment of restitution based on the damages Walmart suffered
for the loss of the other items stolen, excluding the value of the Cricut which was
never removed from the store.
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STATE V. HILL
Opinion of the Court
V. Conclusion
We conclude the trial court erred by denying Defendant’s motion to dismiss as
to the charge of larceny from a merchant by product code fraud under North Carolina
General Statute Section 14-72.11(3). We vacate Defendant’s conviction for this
charge. However, the trial court did not err in denying Defendant’s motion to dismiss
the charge of misdemeanor larceny based on a fatal variance under North Carolina
General Statute Section 14-72(a). Finally, we conclude the trial court erred in
calculating restitution and remand for the trial court to enter a new restitution order.
NO ERROR IN PART; VACATED IN PART; AND REMANDED FOR
RESENTENCING.
Judge TYSON concurs in a separate opinion.
Judge STADING concurs in result only.
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No. COA22-620 – State v. Hill
TYSON, Judge, concurring by separate opinion.
We all agree the evidence presented to the trial court did not show Defendant
“created” a product code “for the purpose of fraudulently obtaining goods or
merchandise from a merchant at less than its actual sale price” to elevate the charge
of larceny from a merchant to a felony by switching an unrelated and lower price tag.
See N.C. Gen. Stat. § 14-72.11(3) (2021). We also all agree no fatal variance in the
indictment is shown concerning the remaining misdemeanor larceny charge, and
there is no error. Finally, we all agree Defendant’s restitution order improperly
calculated the amount of restitution, because the items stolen were recovered in a re-
sellable condition by Wal-Mart. I concur and write separately to address the proper
additional larceny from a merchant charge, which should have been charged, based
upon the evidence.
The evidence clearly showed Defendant: (1) willfully; (2) “transfer[ed] a price
tag from goods or merchandise to other gods or merchandise having a higher selling
price;” (3) “without authority;” and, (4) “present[ed] the goods for purchase. N.C. Gen.
Stat. § 14-72.1(d) (2021). Defendant should have been charged with shoplifting by
substitution of price tags for the Cricut machine and using an unrelated lower price
tag to pass the point of sale to steal the merchant’s property. Id.