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. 

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.