STATE OF NORTH CAROLINA
v
.
JAMES WILSON, JR.
Attorney General Roy Cooper, by Assistant Attorney General
Meredith Jo Alcoke, for the State.
Lisa S. Costner for defendant-appellant.
THOMAS, Judge.
Defendant, James Wilson, Jr., was convicted of seven charges
of larceny from the person and pled guilty to being an habitual
felon. He was sentenced to five consecutive terms of imprisonment,
each running a minimum of 125 months with a maximum of 159 months.
He now appeals.
By three assignments of error, defendant contends the trial
court erred by (1) denying his motion to suppress two photographs
taken of his shoes while he was in custody at the Forsyth County
Jail; (2) denying his motions to dismiss the larceny from the
person charges for insufficiency of the evidence; and (3) failing
to instruct the jury on the lesser included offense of misdemeanor
larceny. For the reasons herein, we find no error.
Defendant was initially charged with six counts of common lawrobbery and one count of larceny from the person. Prior to trial,
the State elected to proceed on seven larceny from the person
charges.
Defendant moved to suppress from evidence two photographs of
his shoes. While defendant was in the Forsyth County Jail on an
unrelated charge, a law enforcement officer investigating one of
these charges took the photographs. Defendant, who had been
appointed counsel in the unrelated matter, but not the instant
cases because these charges had not yet been brought, requested
that his attorney be present. The attorney was not contacted by
law enforcement, however, and the photographs were taken.
Defendant argued to the trial court that his motion to
suppress should be allowed because the photographs were taken (1)
without a search warrant or court order, and (2) in violation of
his right to counsel.
The trial court entered the following ruling:
The Court, after review of the statutory
and case law, will deny the motion by the
defense to suppress the use of the photographs
taken on June the 4th based on case law. The
Court would just further find that the motion
is not supported by affidavit but in this
Court's mind it was clear that the motion
should be denied. That the taking of the
photographs was certainly authorized in this
case and will allow the State to use the
photographs taken on June 4th.
The State also presented evidence as to each of the seven
alleged instances of larceny which took place in January, February,
and March 2000. The State's evidence tends to show, on each
occasion, defendant entered a store [Mailbox Pack and Ship, BigLots (three occasions), K-Mart, Frauenhofer's Ice Cream and
Christie's Hallmark], and posed as a customer. He approached the
cashier about making a purchase or receiving change for a dollar.
When the cashier opened the cash register, defendant forcefully
reached into it and removed money, sometimes grabbing the hand of
the cashier in the process. Defendant was positively identified as
the perpetrator in each case by one or a combination of the
following: identification in open court; identification in a photo
lineup; identification in a store security video; identification of
defendant's vehicle leaving the scene; identification of the shoes
worn by defendant during the commission of the crimes.
Defendant's evidence, meanwhile, shows he was employed as an
assistant manager for Goodwill Industries and was responsible for
transporting other Goodwill employees. Goodwill's records indicate
defendant worked on-site both February 22 and March 8, days on
which two of the alleged offenses occurred. Defendant's evidence
also tends to show the following: (1) fingerprints lifted from one
of the crime scenes did not match defendant's; (2) in February
2000, defendant had an eye infection; (3) the victimized cashier at
K-Mart was later charged and pled guilty to larceny from K-Mart;
and (4) numerous witnesses had trouble identifying defendant in
initial photo lineups.
Defendant first contends the trial court erred by denying his
motion to suppress the photographs of his shoes because the officer
did not obtain a nontestimonial identification order pursuant to
Chapter 15A, Article 14 of the North Carolina General Statutesprior to taking the photographs. We disagree.
"A nontestimonial identification order . . . is an
investigative tool available in cases where there is not sufficient
basis for making a lawful arrest." State v. Welch, 316 N.C. 578,
584, 342 S.E.2d 789, 792 (1986). Our Supreme Court has held that
"Article 14 of Chapter 15A applies only to suspects and accused
persons before arrest, and persons formally charged and arrested,
who have been released from custody pending trial. The statute
does not apply to an in custody accused." State v. Irick, 291 N.C.
480, 490, 231 S.E.2d 833, 840 (1977); accord Welch, 316 N.C. at
585, 342 S.E.2d at 793. This interpretation applies even to a
defendant in custody on a charge or charges unrelated to the
offense being investigated by police. See State v. Puckett, 46
N.C. App. 719, 723, 266 S.E.2d 48, 51 (1980); State v. Thompson, 37
N.C. App. 651, 657, 247 S.E.2d 235, 239 (1978). Since defendant
was in custody at the Forsyth County Jail when the photographs were
taken, a nontestimonial identification order was not required. It
does not matter that defendant was in custody on a charge unrelated
to that being investigated by the officer. We conclude the learned
and able trial judge did not err in denying defendant's motion to
suppress.
We further note that the officer's failure to obtain a search
warrant prior to photographing defendant's shoes did not violate
defendant's constitutional rights. "'It is well settled in North
Carolina that clothing worn by a person while in custody under a
valid arrest may be taken from him for examination.'" State v.Steen, 352 N.C. 227, 241, 536 S.E.2d 1, 10 (2000) (quoting State v.
Dickens, 278 N.C. 537, 543, 180 S.E.2d 844, 848 (1971)), cert.
denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001). Also, the United
States Supreme Court has held that
once the accused is lawfully arrested and is
in custody, the effects in his possession at
the place of detention that were subject to
search at the time and place of his arrest may
lawfully be searched and seized without a
warrant even though a substantial period of
time has elapsed between the arrest and
subsequent administrative processing, on the
one hand, and the taking of the property for
use as evidence, on the other.
United States v. Edwards, 415 U.S. 800, 807, 39 L. Ed. 2d 771, 778
(1974), quoted in State v. Payne, 328 N.C. 377, 396, 402 S.E.2d
582, 593 (1991)). In the instant case, defendant was in police
custody pursuant to a valid arrest. If the clothing in his
possession could be taken from him for examination, then the
officer was well within his authority, and the bounds of the
federal and state constitutions, to take a photograph of
defendant's shoes.
Defendant next contends the trial court erred in denying his
motions to dismiss the charges of larceny from the person. We
disagree.
A motion to dismiss is properly denied if "there is
substantial evidence (1) of each essential element of the offense
charged and (2) that defendant is the perpetrator of the offense."
State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990).
"Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." State v.Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). "When
ruling on a motion to dismiss, all of the evidence should be
considered in the light most favorable to the State, and the State
is entitled to all reasonable inferences which may be drawn from
the evidence." State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d
138, 141 (1998). If the trial court determines that a reasonable
inference of the defendant's guilt may be drawn from the evidence,
it must deny the defendant's motion and send the case to the jury
even though the evidence may also support reasonable inferences of
the defendant's innocence. State v. Grigsby, 351 N.C. 454, 456-57,
526 S.E.2d 460, 462 (2000). Contradictions or discrepancies in the
evidence "are for the jury to resolve and do not warrant dismissal
of a case." State v. Jarrell, 133 N.C. App. 264, 268, 515 S.E.2d
247, 250 (1999).
The essential elements of larceny are: (1) taking the property
of another; (2) carrying it away; (3) without the owner's consent;
and (4) with the intent to deprive the owner of the property
permanently. State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810,
815 (1982); State v. Reeves, 62 N.C. App. 219, 223, 302 S.E.2d 658,
660 (1983). The crime of larceny from the person is a felony
regardless of the value of the property taken. N.C. Gen. Stat. §
14-72(b)(1) (2001); see also State v. Buckom, 328 N.C. 313, 317,
401 S.E.2d 362, 364 (1991). "As none of our statutes define the
phrase 'from the person' as it relates to larceny, the common law
definition controls." Buckom, 328 N.C. at 317, 401 S.E.2d at 364.
In Buckom, our Supreme Court looked to the common lawdefinition of larceny from the person and concluded:
Taken in the context of the foregoing
common law principles, "[p]roperty is stolen
'from the person,' if it was under the
protection of the person at the time. . . .
[P]roperty may be under the protection of the
person although not actually 'attached' to
him." R. Perkins & R. Boyce, Criminal Law 342
(3d ed. 1982) (footnotes omitted). For
example, if a jeweler places diamonds on a
counter for inspection by a customer, under
the jeweler's eye, the diamonds remain under
the protection of the jeweler. Id. It has
not been the general interpretation that
larceny from the person "requires an actual
taking from the person, and is not committed
by a taking from the immediate presence and
actual control of the person. . . . As said by
Coke in the 1600's: 'for that which is taken
in his presence, is in law taken from his
person.'" Id. at 342-43 (quoting 3 Coke,
Institutes *69).
Id. at 317-18, 401 S.E.2d at 365. Stated differently, "it is not
necessary that the stolen property be attached to the victim's
person in order for the theft to constitute larceny from the person
as long as the property was within the victim's protection and
presence at the time of the taking." State v. Barnes, 121 N.C.
App. 503, 505, 466 S.E.2d 294, 296, aff'd, 345 N.C. 146, 478 S.E.2d
188 (1996).
In Buckom, our Supreme Court applied this broad definition of
"from the person." It upheld a larceny from the person conviction
based on evidence the defendant reached into a cash register and
forcibly removed money while the cashier was in the process of
making change. The money had not been attached to, or dislodged
from, the cashier's person, but was within the cashier's protection
and presence. Here, the State's evidence is similar to that in Buckom. It
shows defendant, on each occasion, forcefully reached into the cash
register and removed money which was in the immediate presence and
protection of the cashier. On at least three occasions, defendant
grabbed or made contact with one of the cashier's hands in the
process. This is substantial evidence of each of the essential
elements of larceny from the person.
Nonetheless, defendant contends the evidence was insufficient
to show he was the perpetrator. He claims: (1) many witnesses
failed to identify him in early photo lineups; (2) the store
security videotapes failed to show him taking money from the cash
registers; (3) fingerprints found at one of the crime scenes were
not his; and (4) at the time of the offenses, he had an eye
infection, yet no witness testified that the perpetrator had an eye
infection.
These discrepancies in the evidence were properly left for the
jury to resolve and did not warrant dismissal of the charges
against defendant. See Jarrell, 133 N.C. App. 264, 268, 515 S.E.2d
247, 250. Rather, when viewed in the light most favorable to the
State, the evidence shows defendant was positively identified as
the perpetrator of all seven larcenies. His argument to the
contrary has no merit.
By his final assignment of error, defendant contends the trial
court erred by failing to include an instruction for the jury to
consider the lesser included offense of misdemeanor larceny in each
case. We do not agree. Submission of a lesser included offense is only required when
there is evidence from which the jury could find such crime was
committed. State v. Jones, 291 N.C. 681, 687, 231 S.E.2d 252, 255
(1977). Here, all of the evidence tends to show forcible reaching
into cash registers and the removal of money from the immediate
presence and protection of the cashiers. This constitutes larceny
from the person. There is no evidence tending to show the lesser
offense of misdemeanor larceny.
For the reasons discussed herein, we hold defendant received
a fair trial free from error.
No error.
Chief Judge EAGLES and Judge TYSON concur.
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