The Supreme Court affirmed per curiam State v. Wright, 273 N.C. App. 188 (2020), a case where the Court of Appeals majority determined there was sufficient evidence of the value of a stolen propane tank for purposes of felonious larceny and felonious possession of stolen goods.

In this armed robbery case, there was sufficient evidence that the defendant committed a taking from the victim’s person or presence. The evidence showed that the defendant and three other men entered a building in the early morning. The armed intruders ordered the occupants to lie face-down on the ground and take off their clothing. The defendant ordered, “Give me all your money,” and the victim’s cell phone was taken at this time.

The defendant was found guilty at trial in Mecklenburg County of habitual larceny and pled guilty to habitual felon status. On appeal, he argued that a prior conviction for attempted misdemeanor larceny did not qualify as a predicate offense for purposes of the habitual larceny statute. The Court of Appeals agreed.

Under G.S. 14-72(b)(6), a defendant is eligible to be punished for habitual larceny when the defendant commits a larceny after having been convicted of larceny on four previous occasions. Qualifying prior convictions include any larceny offense under G.S. 14-72, any offense “deemed or punishable as” larceny, and substantially similar offenses from other jurisdictions. Attempted larceny is not a larceny and is not deemed or punishable as larceny because it is not a completed larceny and is punished at a lower classification than the completed offense. See G.S. 14-72 and G.S. 14-2.5 (punishment for attempts not otherwise classified). The attempted larceny conviction was from North Carolina and did not therefore qualify as a substantially similar offense from another jurisdiction. Thus, the defendant’s conviction for attempted larceny did not qualify as a valid predicate offense supporting the habitual larceny conviction. That the defendant had previously been convicted of habitual larceny was not sufficient to overcome this defect, as an indictment for habitual larceny must state the four predicate offense relied upon to establish the habitual status. The court observed that a conviction for habitual larceny counts as one conviction for purpose of future habitual larceny prosecutions. Here, because the indictment failed to allege four valid predicate larceny convictions, it was fatally flawed and failed to confer jurisdiction on the trial court.

The normal remedy for a defective indictment is to vacate the conviction. However, the indictment here adequately charged the defendant with misdemeanor larceny and the jury, by convicting the defendant of the habitual offense, found that the defendant was responsible for the misdemeanor offense. Accordingly, the court remanded for entry of a judgment finding the defendant guilty of misdemeanor larceny and for resentencing on that offense. Because the defendant’s habitual felon conviction rested on the habitual larceny conviction, that conviction was reversed and remanded for dismissal.

The evidence was sufficient to support the defendant’s convictions for three counts of felony larceny. The defendant, a truck driver who worked as an independent contractor, was overpaid because a payroll processor accidentally typed “$120,000” instead of “$1,200” into a payment processing system, resulting in an excess deposit in the defendant’s bank account. Although the defendant was informed of the error and was asked not to remove the excess funds from his bank account, he made a series of withdrawals and transfers totaling over $116,000. In connection with one of the withdrawals, the defendant went to a bank branch. The teller who assisted him noted the large deposit and asked the defendant about it. The defendant replied that he had sold part of the business and requested further withdrawals. Because of the defendant’s actions, efforts to reverse the deposit were unsuccessful. The defendant was convicted of three counts of larceny on the basis of his three withdrawals of the erroneously deposited funds. The Court of Appeals vacated the defendant’s convictions, finding that he had not committed a trespassory taking. The Supreme Court reversed. The court noted that to constitute a larceny, a taking must be wrongful, that is, it must be “by an act of trespass.” A larcenous trespass however may be either actual or constructive. A constructive trespass occurs when possession of the property is fraudulently obtained by some trick or artifice. However the trespass occurs, it must be against the possession of another. Like a larcenous trespass, another’s possession can be actual or constructive. With respect to construing constructive possession for purposes of larceny, the court explicitly adopted the constructive possession test used in drug cases. That is, a person is in constructive possession of the thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing. The court found that the depositor retained constructive possession of the excess funds even after they had been transferred to the defendant’s account. Specifically, the depositor had the intent and capability to maintain control and dominion over the funds by affecting a reversal of the deposit. The fact that the reversal order was not successful does not show that the depositor lacked constructive possession. The court went on to conclude that the defendant did not simultaneously have possession of the funds while they were in his account, a fact that would have precluded a larceny conviction. The court concluded that the defendant “was simply the recipient of funds that he knew were supposed to be returned in large part. He therefore had mere custody of the funds, not possession of them.” It reasoned that when a person has mere custody of a property, he or she may be convicted of larceny when the property is appropriated to his or her own use with felonious intent.

In this Union County case, defendant appealed his convictions for misdemeanor larceny of a vehicle and robbery with a dangerous weapon, arguing error in (1) denying his motion for a mistrial after the victim’s testimony identifying him was ruled inadmissible, (2) denying his motion to dismiss the charge of larceny of a motor vehicle for insufficient evidence of intent to permanently deprive the victim, and (3) failure to instruct the jury on the concept of temporary deprivation. The Court of Appeals found no error in (1), but found merit in (2) and vacated defendant’s conviction for larceny, remanding the case for entry of judgment on unauthorized use of a motor vehicle.

In April of 2017, defendant and several associates burst into a mobile home and robbed several friends who had gathered in the living room. Defendant, armed with a hammer, went through the pockets of the people gathered in the living room, and took the keys of one victim and went on a joyride in his truck, returning the truck 30 minutes later. The owner of the truck was allowed to leave unharmed, although some documentation in the truck was destroyed and a roadside safety kit had been taken out of the vehicle. When the matter reached trial, the victim testified that defendant was the man with the hammer who had robbed him. However, the testifying victim had initially identified defendant through a picture that was not disclosed to the defense, leading to an objection from defense counsel to his testimony. After voir dire and argument from both sides, the trial court struck the victim’s identification of defendant and gave a curative instruction to the jury, but denied defendant’s motion for a mistrial. The trial court also dismissed several charges against defendant but denied defendant’s motion for the robbery and larceny of a motor vehicle charges.

Taking up (1), the Court of Appeals noted that review of the trial court’s denial of a mistrial is highly deferential, and that a mistrial is only appropriate in situations where improprieties in the trial were so serious defendant could not receive a fair trial. Here, the court agreed that the victim’s testimony was improper and that the trial court’s curative instruction was likely too vague to remove the prejudice of the improper testimony. However, because the State offered a second witness that also identified defendant, and defense counsel conducted adequate cross-examination after the improper testimony, the court found that “albeit inadequate standing alone,” the cumulative effect of these factors “defeats [defendant’s] claim of a gross abuse of discretion by the trial judge.” Slip Op. at 8. The court also rejected defendant’s attempt to apply State v. Aldridge, 254 N.C. 297 (1961) to call into question the second witness’s credibility. 

Turning to (2), the court agreed with defendant that the State did not present evidence showing intent to permanently deprive the victim of his vehicle. Explaining the elements of larceny, the court noted that intent to permanently deprive the owner of possession must be shown to sustain a conviction, and this intent is typically shown by circumstantial evidence. However, “apart from the act of taking itself, additional facts must be present to support an inference of the requisite criminal intent, including both the intent to wrongfully take and the intent to permanently deprive the owner of possession.” Slip Op. at 15. Here, the State pointed to defendant’s use of force as evidence of intent, but the court rejected this argument, exploring precedent to show that force alone does not represent evidence of intent to permanently deprive the victim of their property. Defendant returned the truck to the victim willingly after 30 minutes, representing only a temporary deprivation. The court concluded that the appropriate remedy here was the lesser-included offense of unauthorized use of a motor vehicle, and remanded for entry of judgment for that offense. This remand negated defendant’s argument (3), which the court did not consider. 

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 817 S.E.2d 6 (2018), the Supreme Court determined that the evidence presented at trial supported the defendant’s conviction under the doctrine of recent possession. Pursuant to a tip, a detective discovered stolen property from the victim’s house at another house on nearby Ridge Street. Several days later, another detective saw the defendant across from the Ridge Street house, sitting in a white pickup truck. The truck matched the description of one that had reportedly been used to deliver the previously discovered property to the Ridge Street house, and now contained more items from the victim’s house. After the trial judge denied the defendant’s motion to dismiss for insufficiency of the evidence and instructed the jury on the doctrine of recent possession, the jury found the defendant guilty of felony breaking or entering and felony larceny for the first incident, and guilty of felony larceny for the second incident.

On appeal, the defendant argued that the evidence was insufficient to send the charges to the jury as to both her culpable possession of the items allegedly stolen in the first incident and the recency of her possession of those items. Considering the trial court ruling on a motion to dismiss de novo and with all evidentiary conflicts resolved in favor of the State, the court determined that the defendant’s acknowledgment that she had been in control of the victim’s items found at the Ridge Street house two weeks after the first incident brought her within the doctrine of recent possession. Though she claimed to have been acting at the direction of another man—a co-defendant also charged in connection with the initial offense—“exclusive possession” within the meaning of the doctrine of recent possession can, the court said, include joint possession of co-conspirators or persons acting in concert. As a result, the court concluded that there was substantial evidence of exclusive possession, and that the Court of Appeals majority erred by holding to the contrary and vacating the defendant’s convictions. The court thus reversed the decision of the Court of Appeals and remanded the case for consideration of the defendant’s remaining arguments. 

Justice Earls dissented, writing that the evidence to support the defendant’s conviction was insufficient in that the defendant was never found in possession of the items allegedly stolen in the first incident. To the contrary, she only admitted to having the items at the behest of her employer (the co-defendant), and her possession was therefore not that of herself but of her employer.

The court modified and affirmed the decision below, 236 N.C. App. 446 (2014), holding that unauthorized use of a motor vehicle is not a lesser-included offense of possession of a stolen vehicle. The court noted that it has adopted a definitional test (as distinct from a factual test) for determining whether one offense is a lesser-included offense of another. Applying that rule, it reasoned that unauthorized use contains an essential element that is not an essential element of possession of a stolen vehicle (that the defendant took or operated a motor-propelled conveyance). The court overruled State v. Oliver, 217 N.C. App. 369 (2011) (holding that unauthorized use is not a lesser-included offense of possession of a stolen vehicle but, according to the Robinson court, mistakenly reasoning that Nickerson mandated that result), to the extent that it is inconsistent with its opinion.

In this Union County case, defendant appealed his convictions, arguing error in denying his motion to dismiss either the larceny or obtaining property by false pretenses charge under the single taking rule. The Court of Appeals found no error. 

In December of 2018, Defendant and two associates were captured on surveillance video at a Wal-Mart, using an empty child car seat box and a plastic bin to remove several thousand dollars’ worth of electronics from a display case. As a part of the scheme to remove the property, defendant and his associates purchased the car seat through a self-checkout line for $89, instead of the true value of the electronics hidden inside. At trial, defendant moved to dismiss the charges against him, a motion the trial court denied. The trial court instructed the jury on felony larceny, conspiracy to commit felony larceny, and obtaining property by false pretenses, and the jury convicted defendant of all three, as well as habitual felony status. 

The Court of Appeals first explained that the single taking rule prevents a defendant from being charged multiple times in a single transaction. However, the court noted that “in each of the cases upon which Defendant relies. . . the defendant was charged with either larceny offenses or obtaining property by false pretenses, but not both.” Slip Op. at 7. Previous decisions established that larceny and obtaining property by false pretenses are separate offenses with different elements; in particular, false and deceptive representation is not an element of larceny. As a result, defendant’s apparent purchase of a car seat, when he was actually hiding thousands of dollars of electronics inside, represented a distinguishable offense from larceny, and was not a duplicative charge. 

The court also considered defendant’s argument under State v. Speckman, 326 N.C. 576 (1990), that G.S. 14-100(a) requires the trial court to present larceny and obtaining property by false pretenses as mutually exclusive options for conviction. The court rejected this argument, noting that the crime in question for Speckman was embezzlement, which requires first obtaining property lawfully before wrongfully converting it, making it mutually exclusive from obtaining property by false pretenses. Unlike embezzlement, the court explained that “[t]he offenses of larceny and obtaining property by false pretenses are not mutually exclusive, neither in their elements. . . nor as alleged in the instant indictments.” Slip Op. at 11-12. 

In a larceny case, the State failed to present sufficient evidence that the defendant was the perpetrator.  The State’s evidence at trial showed that audio equipment had been taken from Manna Baptist Church after the church doors were inadvertently left unlocked following a Wednesday evening service.  The doors were locked by a church secretary the next morning and remained locked until Sunday morning.  The church’s pastor discovered that the equipment was missing following the Sunday service.  The defendant’s wallet was found near where some of the equipment had been stored.  In an interview with an investigator, the defendant admitted to being at the church on the night the doors were left unlocked but claimed to not remember anything that he had done while he was there.  At trial he testified that while at the church he did “a lot of soul searching” and drank a bottle of water but that he “did not take anything away from the church.”  An EMT who interacted with the defendant soon after he left the church testified that the EMT did not see him carrying anything at that time.

The court reviewed “well-settled caselaw” establishing that “evidence of a defendant’s mere opportunity to commit a crime is not sufficient to send the charge to the jury.”  Reviewing the evidence, the court said that while it “may be fairly characterized as raising a suspicion of defendant’s guilt of larceny,” crucial gaps existed in that “[t]he State failed to actually link defendant to the stolen property or to prove that he was in the church at the time when the equipment—which was never recovered—was stolen.”  The court noted that the evidence showed a four-day time span over which the theft could have occurred and that a number of other persons had access to the interior of the church during that period.  It further noted that the State was unable to show how the defendant would have been physically able to carry away the cumbersome audio equipment at issue.  The evidence presented was, in the court’s words, “simply not enough to sustain a conviction for larceny.”

The court modified and affirmed the decision below, 236 N.C. App. 446 (2014), holding that unauthorized use of a motor vehicle is not a lesser-included offense of possession of a stolen vehicle. The court noted that it has adopted a definitional test (as distinct from a factual test) for determining whether one offense is a lesser-included offense of another. Applying that rule, it reasoned that unauthorized use contains an essential element that is not an essential element of possession of a stolen vehicle (that the defendant took or operated a motor-propelled conveyance). The court overruled State v. Oliver, 217 N.C. App. 369 (2011) (holding that unauthorized use is not a lesser-included offense of possession of a stolen vehicle but, according to the Robinson court, mistakenly reasoning that Nickerson mandated that result) (below), to the extent that it is inconsistent with its opinion. 

The defendant was close friends with older couple in Pamlico County. They considered each other family. When the husband of the couple unexpectedly died, the defendant offered to assist the surviving widow. She ultimately turned over complete control of her finances to the defendant. Two months later, she signed a power of attorney making the defendant her attorney in fact and named the defendant as the primary beneficiary of her will. Money was withdrawn from the widow’s accounts and deposited into new bank accounts opened jointly in the names of the widow and the defendant. The defendant then used the widow’s funds to make personal purchases and pay individual debts. Additionally, some of the widow’s funds were automatically withdrawn by the bank from the joint accounts to cover overdrafts owed by the defendant on his individual bank accounts.  After the discovery that more than $100,000.00 had been withdrawn from the widow’s accounts, the defendant was charged with embezzlement and multiple counts of exploitation of an older adult. At trial, the defense requested a special jury instruction regarding the rights of joint account holders based on provisions in Chapter 54C (“Savings Banks”) of the North Carolina General Statutes. The trial court declined to give the proposed instruction, the jury convicted on all counts, and the defendant was sentenced to a minimum 73-months imprisonment.

On appeal, a unanimous Court of Appeals found no error. (1) The defendant’s motion to dismiss for insufficient evidence was properly denied. The evidence showed a fiduciary relationship existed between the defendant and the widow, even before the execution of the power of attorney. “[T]he evidence sufficiently established that a fiduciary relationship existed between Defendant and Mrs. Monk prior to that point, when he ‘came into possession of the funds in Mrs. Monk’s bank accounts.’” Steele Slip op. at 10. The defendant also argued that, as a joint account holder with the widow, the money in the accounts was properly considered his property. The court disagreed. While joint account holders may be presumed to be the owners of the money in a joint account, that presumption can be overcome when ownership is disputed. Then, ownership of the funds is determined by examining the history of the account, the source of the money, and whether one party intended to gift money to the other joint account holder (among other factors). It was clear here that the widow was the source of the funds in the joint accounts and that she did not intend to make any gift to the defendant. “[T]here was sufficient evidence that the funds taken were the property of Mrs. Monk, and that she did not have the requisite ‘donative intent’ to grant Defendant the money to withdraw and use for his personal benefit.” Id. at 14 (citation omitted). There was also sufficient evidence that the defendant intended to embezzle an amount exceeding $100,000. While more than $20,000 of the missing funds had been automatically withdrawn by a bank to cover the defendant’s preexisting overdraft fees and the defendant denied being aware of this, the overdraft repayments occurred over a 9-month period of time. The defendant received bank statements recounting the repayments each month during that time frame. The total amount deducted as overdraft repayments exceeded $20,000, more than one-fourth of the defendant’s yearly salary. There was also evidence of the defendant’s financial problems. This was sufficient circumstantial evidence of the defendant’s fraudulent intent to embezzle over $100,000. The defendant’s various sufficiency arguments were therefore all properly rejected.

(2) The trial court did not err in failing to give the jury a special instruction on joint accounts and joint tenancy. The proposed instruction was based on the language of G.S. 54C-165 and related laws regarding banking regulations. These laws are intended to protect banks, and allows them to disburse joint funds to either party listed on the account. The laws do not allow a joint account holder to wrongfully convert the funds to their own use simply by virtue of being a joint account holder. The proposed instruction therefore would have been confusing and misleading to the jury. In the words of the court:

Because the requested special instruction could have misled the jury and was likely to create an inference unsupported by the law and the record—that Defendant’s lawful access to the funds in the joint accounts entitled him to freely spend the money therein—the trial court properly declined to deliver Defendant’s requested special jury instruction. Steele Slip op. at 19.

The trial court did not err by denying the defendant’s motion to dismiss charges of possession of stolen goods (a debit card) and possession of marijuana. The State presented substantial evidence establishing constructive possession of both the items. The items were found in close proximity to the defendant and his vehicle. Because of their proximity to the items, the defendant and his accomplices had the ability to exercise control over the contraband. Additionally, an officer spotted the defendant’s car and the suspects about one minute after receiving information from the Sheriff’s department about a robbery related to the charges at issue. The brief period between the robbery and locating the suspects with the stolen card supports an inference that the defendant knew of the robbery and the presence of the card. Based on the totality of the circumstances, there was substantial evidence that the defendant had constructive possession of the items.

The evidence was sufficient to support a conviction for possession of stolen property. The defendant challenged only the sufficiency of the evidence that he knew or had reasonable grounds to believe that the items were stolen. Here, the defendant had possession of stolen property valued at more than $1,000, which he sold for only $114; although the defendant told a detective that he obtained the stolen property from a “white man,” he could not provide the man’s name; and the defendant did not specifically tell the detective that he bought the items from this unidentified man and he did not produce a receipt.

Reversing State v. Nickerson, 208 N.C. App. 136 (2010), the court held that unauthorized use of a motor vehicle is not a lesser included offense of possession of stolen goods. The court applied the definitional test and concluded that unauthorized use of a motor vehicle contains at least one element not present in the crime of possession of stolen goods and that therefore the former offense is not a lesser included offense of the latter offense.

As a matter of legislative intent, the court held that a defendant may not be convicted for both armed robbery and possession of stolen goods taken during the robbery.

In this Guilford County case, defendant appealed his conviction for felony conversion of property by bailee, arguing he did not qualify as a bailee under the law. The Court of Appeals agreed, vacating the judgment. 

In 2017, defendant accepted a check for $17,500 from an acquaintance (the alleged victim), and promised to invest the money on her behalf. Defendant had previously told the acquaintance that he was a financial advisor, and the agreement to invest the money was memorialized in a promissory note between the parties. After several months, defendant stopped responding to the victim’s communications about the money. The victim reported the issue to the Greensboro Police Department, and a detective conducted an investigation, including an interview with defendant. The investigation determined that defendant had never created an investment account for the money, and defendant no longer had the funds. Defendant was tried in February of 2022 for several charges, but after the trial court dismissed a computer access charge and an embezzlement charge, he was only convicted of felony conversion of property by bailee. 

Taking up defendant’s argument that he was not a bailee, the Court of Appeals first looked to the language of G.S. 14-168.1 and relevant caselaw. The court noted that “[t]raditionally, the object of bailment is a specific item of real property,” and that older North Carolina caselaw used the term “chattel” in this context. Slip Op. at 7. Normally the court would look for a relationship where a bailee controlled property for a limited purpose and had agreed to return that specific property. Because the nature of a bailment agreement is usually one party holding and returning a specific item of property (in the same or some altered form), money is not normally the subject of bailment. Caselaw supported the principle that “whether a bailment relationship has been created with respect to money depends on whether the agreement requires the use of ‘exact funds’ as opposed to treating the money as fungible.” Id. at 9. Here, the financial advisor relationship did not satisfy that test, as “[d]efendant was neither obligated nor expected to return the exact check given to him,” and “he was entrusted with a complex series of decisions concerning the investment of the funds as a fungible asset.” Id. at 11. Because defendant was not a bailee, he could not be convicted under the applicable statute. 

Judge Arrowood concurred in the judgment only by separate opinion, recommending the Supreme Court of North Carolina revisit the concept of bailment and the return of “exact funds.” Id. at 12.