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., 09/17/2021
E.g., 09/17/2021

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 (July 18, 2017) 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.

State v. Fish, 229 N.C. App. 584 (Sept. 17, 2013)

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.

State v. Hull, 236 N.C. App. 415 (Sept. 16, 2014)

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.

State v. Jones, 369 N.C. 631 (June 9, 2017)

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.

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.

State v. Jones, 369 N.C. 631 (June 9, 2017)

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 (Jan. 6, 2009) 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.

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.

State v. Hole, 240 N.C. App. 537 (Apr. 21, 2015)

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.

(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 (July 3, 2018) 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 (Feb. 6, 2018) 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.

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