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NO. COA11-658 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. SELVYN MARTIN ABBOTT New Hanover County No. 08 CRS 60837

Appeal by Defendant from judgment entered 3 September 2009 by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 10 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Lisa K. Bradley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliot Walker, for Defendant-appellant. HUNTER, JR., Robert. N., Judge. Selvyn Martin Abbott ("Defendant") appeals his conviction for larceny by employee. On appeal, Defendant contends: (1) the

trial court erred by allowing the State to amend the bill of indictment; (2) the trial court erred by entering judgment

against Defendant where the amended indictment failed to allege a victim capable plain of error owning by property; to (3) the trial the court on

committed

failing

instruct

jury

"temporary deprivation" in its charge to the jury; and (4) the

-2trial court erred by denying Defendant's motion to dismiss at the close of the evidence. trial court's judgment After careful review, we vacate the dismiss the State's indictment

and

against Defendant. I. Factual & Procedural Background The State's evidence at trial tended to show the following. In August 2008, Neil Schulman owned and operated a "full service sign shop" in Wilmington. and repaired signs. The shop designed, carved, printed,

Mr. Schulman operated the shop as a sole The video

proprietorship under the name "Cape Fear Carved Signs." shop had a workshop area and was equipped with a

surveillance system.

Mr. Schulman's son, Keith Yow, and Shannon

MacKay, a graphic designer, also worked at the shop. On or about 11 August 2008, Mr. Schulman hired Defendant to perform mechanical work on some of the shop's equipment.

Defendant was entrusted with some of the tools and had access to the tools in the workshop area of the shop but did not have permission to remove the tools from the shop. Mr. Schulman left on a trip to Florida. On the afternoon of 14 August 2008, while Mr. Schulman was in Florida, Ms. MacKay observed Defendant leaving the shop That same week,

"rolling like a suitcase kind of thing behind him."

Bill Wesley

-3Robinson, who worked at a muffler shop across the street from Cape Fear Carved Signs, also observed Defendant remove a black and yellow bag from the shop. behavior scooter Robinson suspicious shop and Mr. Robinson found Defendant's "James," to the who operated shop. Mr. a

telephoned adjacent

immediately as

sign

Mr. Yow

observed

James

confronted

Defendant.

arrived at the sign shop around this time and approached James and Defendant. Mr. Yow inspected the bag Defendant had been

carrying and discovered the bags contained tools from the sign shop. Defendant explained he was taking the tools home to

charge their batteries, which struck Mr. Yow as odd because the tools could have been charged right there at the sign shop. Yow escorted Defendant home, then returned to the shop Mr. to

determine if any tools were missing. Upon returning from his trip to Florida, Mr. Schulman was informed of Mr. Yow's encounter with Defendant. investigated to see if any tools were missing. Mr. Schulman He discovered

that a nail bag, a brand new nail gun set, a brand new wrench set, and two drills were missing. Mr. Schulman also discovered

that several of the shop's security cameras had been disabled. On 11 September 2008, Defendant was arrested for the

offense of larceny by employee.

On 15 December 2008, a New

-4Hanover County Grand Jury returned a true bill of indictment against Defendant on one charge of larceny by employee. The

indictment states that Defendant "being the employee of Cape Fear Carved Signs, Incorporated," embezzled and converted to his own use certain tools "valued at $2,420.00 . . . kept for his employer's use, with the intent to steal and to defraud his employer." This Criminal case came of on New to be tried at the 31 August Court, 2009 the

Session

Hanover

County

Superior

Honorable Judge Phyllis M. Gorham presiding. called, striking the the State word moved to amend the from bill its

When the case was of indictment by The

"Incorporated"

language.

prosecutor explained, "we've just been apprised that at the time of this incident, had not on yet The the date of the alleged It stated offense, was a the sole "the

business

been

incorporated. further

proprietorship."

prosecutor

that

essence of the offense is not the holding of the property by the entity, but it's rather, the larceny. court So this is and, not a

substantial

change."

The

trial

agreed

over

Defendant's objection, granted the State's motion to amend the indictment.

-5Following a two-day trial, the jury returned its verdict finding Defendant guilty as charged. Judge Gorham determined

Defendant had a prior record level of IV and sentenced Defendant to imprisonment for a period of ten to twelve months. entered notice of appeal in open court. II. Jurisdiction Jurisdiction lies in this Court pursuant to N.C. Gen. Stat.

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