Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 12/04/2024
E.g., 12/04/2024

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 Durham County case, defendant appealed his conviction for first-degree murder based on the felony-murder rule, arguing insufficient evidence of the underlying felony because the State did not admit evidence establishing the value of the victim’s car. The Court of Appeals agreed, reversing defendant’s conviction and remanding for the trial court to enter judgment on the lesser-included offense of involuntary manslaughter. 

In July of 2018, police found the victim dead in her apartment; the police noted the apartment looked as if there had been a party, as it was in disarray. Defendant was known to have spent time drinking with the victim, and his fingerprints were found on beer cans in the apartment. Later that day, police found defendant in Chapel Hill near defendant’s car, and defendant asked “is she dead?” when he was arrested. Police found the victim’s driver’s license and debit card in defendant’s wallet and determined defendant sold the victim’s smartphone in Burlington. Defendant was subsequently convicted based on the felony-murder rule as the determination was that the victim died while defendant was stealing her car. 

The Court of Appeals first considered defendant’s argument that the jury instruction sheets were flawed as they did not have a selection for “not guilty.” The court noted defendant did not raise this objection during trial, and that the plain error standard applied. Because the jury selection sheet had a space for “no” for each charge, the court determined this did not represent plain error. The court noted this was not ideal, but when combined with the jury instructions from the trial court, the issue did not rise to the level of plain error. 

Moving to the felony murder argument, the court explained that “in order to prove felony larceny, the State had the burden of proving that the victim’s car was worth over $1,000.00.” Slip Op. at 8. Here, “the State did not offer any opinion evidence regarding the vehicle’s value, evidence of what the victim paid for the vehicle, or any other evidence which included a dollar amount from which the jury could make a value determination.” Id. at 10. Although the State referenced various pieces of evidence in the record that could have supported the value was over $1,000, the court noted this was insufficient. Under State v. Holland, 318 N.C. 602 (1986), providing information about the vehicle’s make and year, a picture of the vehicle, and evidence the vehicle was operational did not represent sufficient evidence for a jury to establish a monetary value, and the court noted that here, the State presented even less evidence than in Holland.

The court also provided an explanation of the basis for entering judgment or retrying defendant for lesser-included offenses, explaining “[a] retrial for second-degree murder and/or voluntary manslaughter is one of ‘continuing jeopardy,’ as the original indictment in this case embraced second-degree murder and involuntary manslaughter as lesser-included offenses of first-degree premeditated murder and also embraced misdemeanor manslaughter as a lesser-included offense of first-degree felony murder.” Slip Op. at 14. 

Judge Stroud concurred as to the insufficiency of the evidence related to the car’s value, but dissented from the conclusions related to the jury selection sheet, and would have granted defendant a new trial. 

State v. Wright, 273 N.C. App. 188 2020-08-18 aff’d per curiam, 379 N.C. 93, 2021-NCSC-126 (Oct 29 2021)

In this larceny and possession of stolen property case, (1) the trial court did not err by denying the defendant’s motion to dismiss where there was sufficient evidence of the value of the stolen goods; (2) the trial court did not err in jury instructions on felonious larceny; and (3) the trial court erred by sentencing the defendant on both felonious larceny and felonious possession of the goods stolen during the larceny. 

(1) At trial, a witness testified that the value of a stolen propane tank, which was the basis for both the charges of felonious larceny and felonious possession of stolen goods, was “roughly $1,330.”  In moving to dismiss, the defendant argued that removing the cost of two regulators and the amount of propane necessary to fill the tank, items which there was some testimony about, dropped the value of the tank below the $1,000 threshold for the felony versions of the offenses.  The court rejected this argument, largely because of precedent establishing that the State is merely required to present some competent evidence of the fair market value of stolen property, which the jury may then consider.  The witness’s testimony of the roughly $1,330 value of the tank was sufficient on this issue and the trial court did not err by denying the defendant’s motion to dismiss.

(2) The court rejected the defendant’s argument that the trial court committed plain error by instructing the jury with respect to larceny that the defendant carried away “another person’s property” instead of “a propane tank,” an instruction taken verbatim from the relevant pattern jury instruction and which the defendant characterized as permitting the jury to find him guilty of felonious larceny based on the value of additional items not included in the indictment.  Noting that “the better practice may have been to designate the specific property taken,” the court found no reason to assume that the jury based its verdict on any consideration other than the value of the tank alone and concluded that the trial court did not err.

(3) The State conceded and the court agreed that the trial court erred in sentencing the defendant for both larceny and possession of the property stolen during the larceny.

Judge Collins concurred, writing separately to add additional analysis on the jury instruction issue.  Judge Murphy concurred in part and dissented in part, expressing the view that the State’s evidence of the value of the propane tank was insufficient because the testimony concerning valuation was in reference to the combined value of the propane tank, the unknown quantity of propane it contained, and associated regulators.

The defendant stole fuel injectors from a salvage yard. Among other issues: (1) The defendant’s indictment for larceny of motor vehicle parts in violation of G.S. 14-72.8 was insufficient. The statute requires that “the cost of repairing the motor vehicle is one thousand dollars . . . or more,” but the indictment alleged only that the total value of all the injectors taken from an unspecified number of vehicles was $10,500. The court of appeals construed the statute to require at least $1,000 in damage to a single motor vehicle. (2) A detective testified that he contacted an auto parts company in Maryland and learned that the defendant had sold the company 147 fuel injectors for nearly $10,000. This testimony was not hearsay as it was admitted “to describe [the detective’s] investigation,” not to prove that the defendant stole anything.

State v. Bacon, ___ N.C. App. ___, 803 S.E.2d 402 2017-07-18 temp. stay granted, ___ N.C. ___, 802 S.E.2d 460 (Aug 4 2017)

Because there was insufficient evidence to establish that the value of the stolen items exceeded $1000, the trial court erred by failing to dismiss a charge of felonious larceny. The items in question, stolen during a home break-in, included a television and earrings. Although the State presented no specific evidence concerning the value of the stolen items, the trial court ruled that their value was a question of fact for the jury. This was error. A jury cannot estimate the value of an item without any evidence put forward to establish a basis for that estimation. Although certain property may, by its very nature, be of value obviously greater than $1000 the television and earrings in this case are not such items.

The State presented sufficient evidence that the fair market value of the stolen boat batteries was more than $1,000 and thus supported a conviction of felony larceny.

In a felony larceny case, there was sufficient evidence that a stolen vehicle was worth more than $1,000. The value of a stolen item is measured by fair market value and a witness need not be an expert to give an opinion as to value. A witness who has knowledge of value gained from experience, information and observation may give his or her opinion of the value of the stolen item. Here, the vehicle owner’s testimony regarding its value constituted sufficient evidence on this element.

In a felony larceny case, there was sufficient evidence that the goods were valued at more than $1,000 where the victim testified that $500 in cash and a laptop computer valued at least at $600 were taken.

There was sufficient evidence that a stolen truck was worth more than $1,000. The sole owner purchased the truck new 20 years ago for $9,000.00. The truck was in “good shape”; the tires were in good condition, the radio and air conditioning worked, and the truck was undamaged, had never been in an accident and had been driven approximately 75,000 miles. The owner later had an accident that resulted in a “total loss” for which he received $1,700 from insurance; he would have received $2,100 had he given up title. An officer testified that the vehicle had a value of approximately $3,000. The State is not required to produce direct evidence of value, provided that the jury is not left to speculate as to value.

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 evidence was insufficient to support convictions of felony larceny from the person. Items were stolen from the victims’ purses while they were sleeping in a hospital waiting room. At the time the items were stolen, the purses were not attached to or touching the victims. The court rejected the State’s argument that the purses were under their owners’ protection because hospital surveillance cameras operated in the waiting room. The court noted: “Video surveillance systems may make a photographic record of the taking, but they are no substitute for ‘the awareness of the victim of the theft at the time of the taking.’” The court noted that the State’s theory would convert any larceny committed in areas monitored by video to larceny from the person.

The evidence was sufficient to show that a larceny of a laptop was from the victim’s person. At the time the laptop was taken, the victim took a momentary break from doing her homework on the laptop and she was about three feet away from it. Thus, the court found that the laptop was within her protection and presence at the time it was taken.

A larceny was from the person when the defendant stole the victim’s purse, which was in the child’s seat of her grocery store shopping cart. At the time, the victim was looking at a store product and was within hand’s reach of her cart; additionally she realized that the larceny was occurring as it happened, not some time later.

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.

In this habitual larceny case where the defendant was sentenced as a habitual felon, the court held that the habitual larceny indictment was not facially invalid for failure to allege all essential elements of the offense.  The defendant argued that the habitual larceny indictment was facially invalid because it did not specifically allege that he was represented by counsel or had waived counsel in the proceedings underlying each of his prior larceny convictions.  G.S. 14-72(b)(6) provides that a conviction for a larceny offense may not be used as a prior conviction for purposes of elevating misdemeanor larceny to felony habitual larceny unless the defendant was represented by counsel or waived counsel.  Reviewing the structure of G.S. 14-72(b)(6), the North Carolina Supreme Court’s definition of the elements of the offense in a prior case, and the availability to defendants of information regarding their counsel when they obtained prior convictions, the court held that representation by or waiver of counsel in connection with prior larceny convictions is not an essential element of felony habitual larceny and thus need not be alleged in an indictment for that offense.  Because representation by or waiver of counsel is not an essential element of the offense, the court also rejected the defendant’s related sufficiency of the evidence argument.

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.

As conceded by the State, the evidence was insufficient to establish misdemeanor larceny where the defendant was in lawful possession of the property at the time she removed it. After eviction proceedings were instituted against the defendant at one residence, she moved into a new home. Because the new home did not have appliances, she moved the appliances from her original home into the new home, having made plans to return them before the date she was required to be out the first residence. However she was arrested and charged with larceny of the appliances before that date expired.

In this Johnston County case, defendant appealed her convictions for three counts of larceny by an employee, arguing error in denying her motion to dismiss for insufficient evidence and calculating her prior record level. The Court of Appeals found no error. 

From May 13 -15, 2021, defendant was responsible for making cash deposits from her Dollar General store to the bank. In the store’s deposit log, defendant recorded that deposits were made on each day; she quit her job at the store on May 17. An audit later determined that defendant never made the deposits and stole over $11,000 from the store. A loss prevention officer tried to contact defendant, but could not reach her, and the matter was reported to the local sheriff’s office. Defendant was finally located and served with arrest warrants in September of 2021. After being served with arrest warrants, defendant made deposits into the Dollar General bank account in March and April of 2022, totaling the missing amount. When the matter came for trial, defendant testified that she left the deposit bags containing the missing amount in her car, and assumed her daughter had made the necessary deposits. When asked where she obtained the money to make the deposits in 2022, defendant said that she scraped together the money from working jobs and borrowing from family members, admitting that it was not the same money that had been taken from the store. 

The Court of Appeals explained the evidence supported a conclusion that defendant intended to take and deprive Dollar General of the money because defendant “quit her job the day after she falsely indicated that she had deposited Dollar General’s money into its bank account and left town.” Slip Op. at 7. The court rejected defendant’s argument that she did not have an intent to permanently deprive Dollar General of the funds, noting that defendant reimbursed the missing funds only after being arrested for larceny.

Moving to the record level calculation, the court noted that defendant pleaded guilty to misdemeanor possession of methamphetamine in 1999, but the same year the General Assembly reclassified the possession of any amount of methamphetamine as a felony. As a result, defendant’s plea agreement to the apparent misdemeanor was properly classified as a felony under G.S. 15A-1340.14(c), adding two points to her prior record level. The court explained that this did not breach defendant’s plea agreement, as “[s]he ‘bargained’ for a conviction to a lesser degree of possession of methamphetamine, dismissal of the possession of drug paraphernalia charge, and a sentence in accordance with that agreement.” Id. at 10. 

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. 

The evidence was sufficient to convict the defendant of larceny of a firearm. The court rejected the defendant’s argument that the evidence was insufficient to show that he intended to permanently deprive the victim of a firearm, noting: “Generally, where a defendant takes property from its rightful owner and keeps it as his own until apprehension, the element of intent to permanently deny the rightful owner of the property is deemed proved.” Here, the defendant was apprehended by law enforcement officers with the stolen pistol hidden in the spare tire well of his vehicle.

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.

(1) Forgery and larceny of a chose in action are not mutually exclusive offenses. The defendant argued that both forgery and uttering a forged check require a counterfeit instrument while larceny of a chose in action requires a “valid instrument.” The court concluded that larceny of a chose in action does not require that the bank note, etc. be valid. (2) A blank check is not a chose in action.

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.

Shoeprint evidence and evidence that the defendant possessed the victim’s Bose CD changer and radio five months after they were stolen was sufficient to sustain the defendant’s convictions for burglary and larceny.

State v. Patterson, 194 N.C. App. 608 2009-01-06 overruled on other grounds, 368 N.C. 83 (Jun 11 2015)

The doctrine of recent possession applied to a video camera and a DVD player found in the defendant’s exclusive possession 21 days after the break-in.

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 Onslow County case, defendant appealed his convictions for larceny from a merchant by product code and misdemeanor larceny, arguing error in (1) denying his motion to dismiss, and (2) ordering him to pay an incorrect amount of restitution. The Court of Appeals found no error with the misdemeanor larceny conviction, but vacated the larceny by product code conviction and remanded for resentencing and a new order of restitution. 

In February of 2020, a Walmart manager saw defendant putting a sticker with a product code for a Tupperware container over the product code on a sewing machine box. The manager followed defendant, noticing that he went to the electronics department and several other areas of the store and placed things in his backpack, then headed to the self-checkout. At the self-checkout, defendant scanned the sticker, which resulted in a $7.98 charge for a $227 sewing machine. Defendant also had placed electronics into his backpack that he did not scan or pay for, and fled the store when the manager attempted to confront him. At trial, proof of the product code sticker, along with receipts for the merchandise stolen, were admitted into the record. 

The Court of Appeals first considered the larceny by product code charge, looking to G.S. 14-72.11(3), specifically the meaning of “created” in the sentence “[b]y affixing a product code created for the purpose of fraudulently obtaining goods or merchandise from a merchant at a reduced price.” Slip Op. at 6. Explaining that this was a matter of first impression, the court looked to the plain meaning of “create,” as well as its use in context of the section, to weigh whether this language contemplated repurposing an existing product code as defendant had done here. The court pointed out that G.S. 14-72.1(d) seemed to more appropriately reflect the repurposing done by defendant in this case, as it considered transferring a price tag for obtaining goods at a lower price. Id. at 15. This led the court to agree with defendant that the charge was not applicable, concluding:

Because the larceny [statutes] 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.

Id. at 18. However, because the indictment still alleged the essential elements of larceny, defendant’s argument of a fatal variance failed when applied to the misdemeanor larceny charge. Additionally, the court noted that the sewing machine was left behind when defendant fled the store, justifying a reduction in the value of restitution. The court remanded to the trial court for resentencing and recalculation of restitution. 

Judge Tyson concurred by separate opinion to address the appropriate charge of shoplifting by substitution of tags under G.S. 14-72.1(d).  

Judge Standing concurred in the result only. 

In this McDowell County case, defendant appealed his conviction for felony larceny, arguing the trial court erred by denying his request for a jury instruction on the lesser included offense of attempted larceny. The Court of Appeals found no error with the trial court. 

In September of 2018, defendant placed several items in a shopping cart at a Tractor Supply store, then pushed the items through the anti-shoplifting alarms and out into the parking lot to a vehicle, disregarding staff who yelled after him that he had not paid for the items. When defendant reached the waiting car, he loaded the items into the back seat; however, after an argument with the driver, defendant threw the items out of the car into the parking lot and the vehicle drove away with defendant inside. When the matter reached trial, defendant was convicted of felony larceny under G.S. § 17-72(b)(6) because had previously been convicted of four misdemeanor larceny offenses. 

The court examined the trial court’s denial of the instruction on attempted larceny, noting that in North Carolina a judge must submit a lesser included offense to the jury unless “the State’s evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser included offense.” Slip Op. at 6-7, quoting State v. Peacock, 313 N.C. 554, 558 (1985). Outlining each element of common law larceny, the court explained that it consisted of (1) taking of property, (2) carrying it away, (3) without the owner’s consent, and (4) with the intent to deprive the owner of the property. The court then walked through each element, as the defendant clearly took the property out the doors of the Tractor Supply store, disregarding the anti-shoplifting alarms and warnings from staff, and proceeded to a waiting car in the parking lot. Although defendant argued that leaving the items in the parking lot showed only an attempt at larceny, the court disagreed, explaining “the larceny was completed before Defendant removed the items from the vehicle and abandoned them.” Id. at 10. Because the evidence in the record clearly showed each element of larceny, the court held that an instruction on attempted larceny was not required. 

Because misdemeanor larceny and simple assault are lesser included offenses of common law robbery, the trial court erred by sentencing the defendant for all three offenses. The court rejected the State’s argument that the defendant was not prejudiced by this error because all three convictions were consolidated for judgment and the defendant received the lowest possible sentence in the mitigated range. The court noted that the State’s argument ignores the collateral consequences of the judgment. The court thus arrested judgment on the convictions for misdemeanor larceny and simple assault.

Following State v. Ross, 46 N.C. App. 338 (1980), the court held that unauthorized use of a motor vehicle “may be a lesser included offense of larceny where there is evidence to support the charge.” Here, while unauthorized use may have been a lesser included of the charged larceny, the trial court did not commit plain error by failing to instruct on the lesser where the jury rejected the defendant’s voluntary intoxication defense.

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. 

(1) In this Franklin County case, the defendant was convicted of felony larceny pursuant to a breaking or entering, felony larceny of a firearm, firearm by felon, fleeing to elude, and armed robbery. The larceny pursuant to breaking or entering and larceny of a firearm occurred at the same time as a part of a continuous transaction and could not support separate convictions. Under the single taking rule, “a single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place.” Posner Slip op. at 4. The State conceded this error, and the court remanded the for judgment to be arrested on one of the larceny counts. [Brittany Williams recently blogged about the single taking rule here.]

(2) The defendant also challenged the trial court’s calculation of his prior record level. The trial court included a point based on a prior 2012 conviction for possession of drug paraphernalia. When determining record level points, prior convictions are classified by the law in effect at the time the present offense was committed. In 2014, the legislature created the class 3 misdemeanor offense of possession of marijuana paraphernalia. The State conceded that the defendant’s paraphernalia 2012 conviction was for marijuana paraphernalia. The conviction therefore should not have counted under current law and the trial court erred in including this point.

The trial court also erred in part in assigning the defendant an additional record level point for having been previously convicted of offenses with “all of the elements of the present offense.” G.S. 15A-1340.14(b)(6). This point applied to the defendant based on his prior convictions for possession of firearm by felon and felony breaking and entering. The defendant had not previously been convicted of larceny of a firearm, fleeing to elude arrest, or armed robbery, however, and it was error to assign this record level point in the judgments for those offenses. Both errors were prejudicial, as they raised the defendant’s prior record level from a level IV to a level V. The matter was therefore remanded for resentencing as well.

State v. Forte, ___ N.C. App. ___, 817 S.E.2d 764 2018-07-03 review granted, 371 N.C. 779 (Dec 5 2018)

The State conceded and the Court of Appeals held that the trial court erred by entering judgment for eight counts of felony larceny where all of the property was stolen in a single transaction. The court thus vacated seven of the convictions.

The court rejected the defendant’s argument that one of the larceny convictions had to be arrested because both occurred as part of a single continuous transaction. The court reasoned that where the takings were from two separate victims, the evidence supported two convictions.

The trial court erred by sentencing the defendant for both felony larceny and felony possession of stolen goods when both convictions were based on the same items.

The trial court erred by sentencing the defendant for both larceny from the person and larceny of goods worth more than $1,000 based on a single larceny. Larceny from the person and larceny of goods worth more than $1,000 are not separate offenses, but alternative ways to establish that a larceny is a Class H felony. While it is proper to indict a defendant on alternative theories of felony larceny and allow the jury to determine guilt as to each theory, where there is only one larceny, judgment may only be entered for one larceny.

A defendant may not be convicted of both felony larceny and felonious possession of the same goods.

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.”

State v. Campbell, ___ N.C. App. ___, 810 S.E.2d 803 2018-02-06 review granted, ___ N.C. ___, 813 S.E.2d 849 (Jun 7 2018)

In a case involving a theft of property from a church, the court held, over a dissent, that the evidence was insufficient to support a larceny conviction. The defendant argued that the State failed to present sufficient evidence that the defendant took the property in question. The evidence showed that the church had evening services on August 15 which ended at about 9 PM. The next morning the church secretary locked the church, after discovering that it had been left unlocked. On August 19 the Pastor discovered that audio equipment, including microphones, sound system wires, a music receiver, and a pair of headphones, was missing from the church. Additionally, some computer equipment had been moved around. There were no signs of forced entry. No fingerprints or DNA evidence were taken from the premises. However, an officer found a wallet in the baptistery changing area containing the defendant’s license. None of the stolen equipment was ever located. Two days later a Detective met with the defendant, who was incarcerated in jail on an unrelated matter. The defendant admitted that he had been at the church and he had “done some things” but didn’t recall all of what he had done. He remembered that the door to the church was open and that he went in to get a drink of water and to pray. He said he left the church and called 911 after having chest pains. When emergency medical services arrived, the defendant was not carrying a bag and had nothing in his pockets. On these facts, the State’s evidence relies solely on the fact that the defendant was in the church during a four-day time period when the stolen items were taken. This is insufficient to establish that the defendant committed the larceny.

The evidence was insufficient to adjudicate the thirteen-year-old juvenile delinquent for unauthorized use of a motor vehicle. Although the evidence showed that the juvenile was operating a motor vehicle registered to his mother, there was no evidence that he was using the vehicle without his mother’s consent.

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. 

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.

Following State v. Ross, 46 N.C. App. 338 (1980), the court held that unauthorized use of a motor vehicle “may be a lesser included offense of larceny where there is evidence to support the charge.” Here, while unauthorized use may have been a lesser included of the charged larceny, the trial court did not commit plain error by failing to instruct on the lesser where the jury rejected the defendant’s voluntary intoxication defense.

Following State v. Nickerson, 365 N.C. 279 (2011), the court held that unauthorized use is not a lesser included offense of possession of stolen property.

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.

An embezzlement indictment was not fatally defective. The indictment alleged that the defendant:

unlawfully, willfully and feloniously did embezzle three thousand nine hundred fifty seven dollars and eighty one cents ($3,957.81) in good and lawful United States currency belonging to AMPZ, LLC d/b/a Interstate All Battery Center. At the time the defendant was over 16 years of age and was the employee of AMPZ, LLC d/b/a Interstate All Battery Center and in that capacity had been entrusted to receive the property described above and in that capacity the defendant did receive and take into her care and possession that property.

The defendant argued that the indictment failed to allege that she acted with fraudulent intent. The court determined that “the concept of fraudulent intent is already contained within the ordinary meaning of the term ‘embezzle,’” as used in the indictment. The court noted that the defendant did not argue that she was prejudiced in her ability to prepare a defense because of this issue. It further noted that to convict the defendant of embezzlement, the State must prove that she fraudulently or knowingly and willfully misapplied or converted the property. Here, the indictment can fairly be read to allege that the defendant “knowingly and willfully” embezzled from her employer.

            The court also rejected the argument that the indictment was defective for failing to specify the acts constituting embezzlement. The indictment alleges that the defendant embezzled a specific sum of money entrusted to her in a fiduciary capacity as an employee of the company. The court “fail[ed] to see how these allegations would not adequately apprise Defendant as to the charges facing her or prejudice her ability to prepare a defense.”

The evidence was sufficient to sustain the defendant’s convictions for embezzlement under G.S. 14-90. The defendant, a director of accounting for a Foundation, transferred over $400,000 from the Foundation’s account into her personal account. The defendant asserted that she was not entrusted with the funds in the course of her employment. To access the funds, her employer’s bank required the defendant to use both her own security device, which they referred to as a “key fob,” along with her supervisor’s key fob. Because the bank issued the key fobs to each employee individually, the defendant asserted that she was not entrusted with the funds. Here however the defendant’s employer entrusted her with both key fobs, even if the bank intended otherwise. She had lawful possession or control of both her own key fob and her supervisor’s key fob when she obtained the funds. Although the bank intended for two employees to participate in each transaction as a security measure, the Foundation did not require its employees to use the key fobs as the bank intended. Instead, it entrusted the entire process to the defendant.

There was sufficient evidence to convict the defendant of larceny by employee. The victim brought her vehicle in for repairs at an auto shop. The defendant, who was the shop manager, provided an estimate for the work, which the victim accepted. When she was told her vehicle was ready, the victim paid the defendant in cash and took her vehicle, later learning that the work had not been done. The defendant deposited a portion of the cash paid by the victim to the shop’s account and kept the remaining amount. As soon as the victim tendered payment to the defendant as the shop’s manager and agent, the funds became the property of the shop for purposes of larceny by employee.

The evidence was sufficient to establish that the defendant embezzled funds from a school. The defendant contended that the State failed to offer substantial evidence that she used the school system’s property for a wrongful purpose. The defendant’s responsibilities included purchasing food and non-food items for school meetings and related events. The State’s evidence showed numerous questionable purchases made by the defendant, consisting of items that would not be purchased by or served at school system events. Also, evidence showed that the defendant had forged her supervisors’ signatures and/or changed budget code information on credit card authorization forms and reimbursement forms at least 29 times, and submitted forms for reimbursement with unauthorized signatures totaling $6,641.02. This evidence showed an intent to use the school’s property for a wrongful purpose, even if the forged signatures did not constitute embezzlement.

There was sufficient evidence of embezzlement where the defendant, a bookkeeper controller for the victim company, was instructed to close the company’s credit cards but failed to do so, instead incurring personal charges on the cards and paying the card bills from company funds. The court rejected the defendant’s argument that the evidence was insufficient because it did not show that she had been physically entrusted with the credit cards. The evidence also showed that the defendant embezzlement funds by paying for her personal insurance with company funds without making a required corresponding deduction from her personal paycheck.

(1) In an embezzlement case in which the defendant was alleged to have improperly written company checks to herself, there was sufficient evidence that the defendant was an agent of the company and not an independent contractor. Two essential elements of an agency relationship are the authority of the agent to act on behalf of the principal and the principal’s control over the agent. Here, the defendant had authority to act on behalf of the corporation because she had full access to the company’s checking accounts, could write checks on her own, and delegated the company’s funds. Evidence of the company’s control over the defendant included that she was expected to meet several responsibilities and that a member of the company communicated with her several times a week. (2) There was sufficient evidence that the defendant had constructive possession of the corporation’s money when she was given complete access to the corporation’s accounts and was able to write checks on behalf of the corporation and to delegate where the corporation’s money went.

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.

In this possession of a stolen motor vehicle case, the trial court’s jury instruction did not contain an incorrect statement of law regarding the element of possession. The evidence tended to show that an officer saw an individual driving a vehicle that was reported stolen. After an accident, the officer saw an individual wearing a white T-shirt flee from the vehicle’s driver side. An officer at the scene observed that only the driver’s door had been left open. Officers maintained almost constant visual contact with the defendant as he fled. The defendant was apprehended shortly afterwards wearing a white T-shirt. Instructing the jury on possession, the trial court stated that a person has actual possession of a vehicle if the person is aware of its presence, is in the car, such as driving, and has both the power intent to control its disposition or use. The court held that the instruction provided an accurate statement of law arising from the evidence presented and that the defendant’s argument that the instruction shifted the burden of proof to the defendant was without merit. The evidence was sufficient for the jury to infer that the defendant operated the stolen vehicle and was not merely a passenger.

The evidence was sufficient to establish that the defendant constructively possessed two stolen firearms found in a van he had rented. The defendant was convicted of two counts of possession of stolen goods in violation of G.S. 14-71.1. The weapons in question were stolen during two separate home invasions. Officers learned that a van spotted on the premises of the second home was rented to Shirelanda Clark. Clark informed officers that she had re-rented the vehicle to the defendant and an individual named Dezmon Bullock. At the request of the police, Clark arranged a meeting with the defendant and Bullock. The two arrived in the van and consent was given to search the vehicle. As the search began, officers found a new basketball goal still in its box. After claiming ownership of the basketball goal, the defendant abruptly left the scene, leaving the item behind. The search continued, and the two stolen weapons were discovered. On appeal the court rejected the defendant’s contention that the evidence was insufficient to establish constructive possession of the weapons, reasoning that although the defendant did not have exclusive possession of the van, other incriminating circumstances existed to establish constructive possession. Those circumstances included: the defendant’s “nervous disposition;” the fact that the defendant “admitted ownership of the basketball goal in proximity to the stolen firearms;” the fact that the defendant had rented the van from Clark; and that the defendant “exhibited irrational conduct tending to indicate he was fearful that the firearms would be discovered during the course of the search — specifically his sudden and abrupt departure from the area when [officers] began the search of the van . . . leaving behind his personal property for which he did not return.”

In a possession of stolen property case, the evidence was insufficient to establish that the defendant constructively possessed the jewelry at issue. The necessary “other incriminating circumstances” for constructive possession could not be inferred from the fact that the defendant was a high-ranking member of a gang to which the others involved in a robbery and subsequent transfer of the stolen goods belonged; the defendant accompanied a person in possession of stolen property to an enterprise at which a legitimate transaction occurred; and the defendant and his wife made ambiguous references to “more scrap gold” and “rings” unaccompanied by any indication that these items were stolen. At most the State established that the defendant had been in an area where he could have committed the crimes.

In a case involving felonious breaking or entering, larceny, and possession of stolen goods, there was sufficient evidence of possession. The defendant’s truck was parked at the residence with its engine running; items found in the truck included electronic equipment from the residence; a man fitting the defendant’s description was seen holding items later identified as stolen; items reported as missing included electronic equipment and a large quantity of loose change; the police dog’s handler observed evidence that someone recently had been in a muddy area behind the residence; the side door of the residence showed pry marks; the defendant was found wearing muddy clothing and shoes and in possession of a Leatherman tool and a large quantity of loose change. A reasonable juror could conclude that the defendant possessed goods stolen from the residence, either as the person standing in the yard holding electronic equipment, through constructive possession of the items in his truck, or through actual possession of the loose change.

In a possession of stolen property case, the trial court committed reversible error by instructing the jury on constructive possession. The property, a vehicle stolen from a gas station, was found parked on the street outside of the defendant’s residence. The defendant claimed that unknown to him, someone else drove the vehicle there. The State argued that evidence of a surveillance tape showing the defendant at the station when the vehicle was taken, the defendant’s opportunity to observe the running, unoccupied vehicle, the fact that the vehicle was not stolen until defendant left the station, and the later discovery of the vehicle near the defendant’s residence was sufficient to establish constructive possession. The court concluded that although this evidence showed opportunity, it did not show that the defendant was aware of the vehicle’s location outside his residence, was at home when it arrived, that he regularly used that location for his personal use, or that the public street was any more likely to be under his control than the control of other residents. The court concluded that the vehicle’s location on a public street not under the defendant’s exclusive control and the additional circumstances recounted by the State did not support an inference that defendant had “the intent and capability to maintain control and dominion over” the vehicle. Based on the same analysis, the court also agreed with the defendant’s argument that the trial court erred by denying his motions to dismiss as there was insufficient evidence that he actually or constructively possessed the stolen vehicle and by accepting the jury verdict as to possession of stolen goods because it was fatally inconsistent with its verdict of not guilty of larceny of the same vehicle.

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.

The court held that there was sufficient evidence to sustain the defendant’s conviction for possession of a stolen vehicle, rejecting the defendant’s argument that he did not have reason to believe the vehicle was stolen, in part because the defendant’s own statements indicated otherwise.

In a possession of stolen goods case, the evidence was insufficient to establish that the defendant knew that the item at issue, a four-wheeler, was stolen. Distinguishing State v. Lofton, 66 N.C. App. 79 (1984), the court noted, among other things, that the cosmetic changes to the four-wheeler were minimal,the defendant openly drove the four-wheeler, and the defendant did not flee from police. Additionally, there was no evidence regarding how the defendant got possession of the four-wheeler.

The evidence was insufficient to establish that the defendant knew a gun was stolen. Case law establishes that guilty knowledge can be inferred from the act of throwing away a stolen weapon. In this case, shortly after a robbery, the defendant and an accomplice went to the home of the accomplice’s mother, put the gun in her bedroom, and left the house. These actions were not analogous to throwing an item away for purposes of inferring knowledge that an item was stolen.

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.

Following State v. Nickerson, 365 N.C. 279 (2011), the court held that unauthorized use is not a lesser included offense of possession of stolen property.

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.

The trial court erred by sentencing the defendant for both felony larceny and felony possession of stolen goods when both convictions were based on the same items.

The trial court erred in convicting the defendant of two counts of possession of a stolen firearm under G.S. 14-71.1. It stated: “While defendant did possess the two separate stolen firearms, we hold that defendant may not be convicted on separate counts for each firearm possessed.

A defendant may not be convicted of both felony larceny and felonious possession of the same goods.

A defendant may not be sentenced for both robbery and possession of stolen property taken during the robbery.

Reversing the Court of Appeals and overruling State v. Marsh, 187 N.C. App. 235 (2007), and State v. Goblet, 173 N.C. App. 112 (2005), the Supreme Court held that a defendant who is acquitted of underlying breaking or entering and larceny charges may be convicted of felonious possession of stolen goods on a theory that the defendant knew or had reasonable grounds to believe that the goods were stolen. 

The evidence was sufficient to sustain a conviction for receiving goods explicitly represented as stolen by a law enforcement officer. No specific words are required to be spoken to fulfill the “explicitly represented” element of the offense. Rather the statute “merely requires that a person knowingly receives or possesses property that was clearly expressed, either by words or conduct, as constituting stolen property.” Here, the officer said that he was told that the business bought “stolen property, stolen laptops” and twice reminded the defendant that “this stupid guy kept leaving the door open, [and] I kept running in the back of it and taking laptops.” After the exchange of money for the laptops, the officer told the defendant that he could get more laptops.

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. 

Where there was insufficient evidence as to the ownership of the property in question, a vehicle, the evidence was insufficient to convict the defendant of felony conversion under G.S. 14-168.1. The indictment alleged that the vehicle was owned by a natural person named as Ezuma Igwe but the State failed to provide substantial evidence that Igwe owned the vehicle. North Carolina law defines a vehicle owner as the person holding legal title to it but here, Igwe never received title to the vehicle in question.

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