State v. Glidewell, ___ N.C. App. ___, 804 S.E.2d 228 (Aug. 15, 2017)

(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in concert need not be alleged in the indictment. (2) The court rejected the defendant’s argument that a fatal variance existed between the indictment, the jury instructions, and the verdict sheets because each held him accountable for stealing a different number of items. Neither the jury instructions nor the verdict sheet were required to specify the number of items stolen. (3) The evidence was sufficient to support the trial court’s instruction on the theory of acting in concert. On appeal, the defendant argued that the State’s evidence was insufficient to show that he and his accomplice acted with a common purpose to commit a larceny or that he aided or encouraged his accomplice. According to the defendant, the evidence showed that he was simply present when his accomplice committed the crime. Here, the evidence showed that the defendant rode with his accomplice in the same car to the store; the two entered the store together; they looked at merchandise in the same section of the store; they were seen on surveillance video returning to the same area behind the clothing rack, stuffing shirts into their pants; and the two left the store within seconds of each other and exited the parking lot in a vehicle driven by the accomplice.