STATE OF NORTH CAROLINA
v. Washington County
No. 00 CRS 69
KENNY ROOSEVELT HOLLEY,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General P.
Bly Hall, for the State.
R. Andrew Womble, for the defendant.
HUDSON, Judge.
Defendant was convicted of felonious larceny and the trial
court sentenced him to a presumptive term of ten to twelve months
imprisonment. Defendant appeals.
The State's evidence tended to show that at about 10:18 p.m.
on 2 February 2000, in response to a report of a suspicious vehicle
in the area, Washington County Sheriff's Deputy Janice Spruill
traveled to Arnold's Car Sales, a used car lot located in the Pea
Ridge Community of Washington County, North Carolina. When Deputy
Spruill arrived at the scene, she found defendant's blue van parked
with the motor running and defendant occupying the driver's seat.
The side door of the van was open. Deputy Spruill heard suspicioussounds of people running emanating from the back of the building.
The deputy subsequently placed defendant in her car, where she
began to question him. She also drove her police car to the rear
of the auto lot to further investigate the earlier sounds. There,
she found the back door of the business open, and had the
dispatcher call the owner, Mr. Bill Arnold.
When Mr. Arnold arrived, he noticed a red Honda four-wheeler
on the lot, that he knew belonged to his neighbors Richard and
Barbara Ochoa. Ms. Ochoa testified that she had last seen the
vehicle parked on their property at about 9:00 p.m., and no one had
been given permission to remove it. The vehicle's value was
estimated to be about $3,500.
Defendant told Deputy Spruill that he had pulled over to take
a nap after traveling from Edenton, North Carolina. Initially,
defendant stated that he did not have any other passengers in the
van, but subsequently changed his story and said that he was with
some friends of family members who had probably left the van door
open. Defendant contended that he did not know their names or
their current location. Later, defendant told Deputy Spruill that
he was with a fifteen or sixteen-year-old nephew, Dee Basnight, but
did not know where he was and did not seem concerned about
Basnight's disappearance.
Another Washington County Deputy Sheriff, Chris Frye, also
responded to the scene. Deputy Frye found Anthony Stallings hiding
underneath a boat on the car lot. He and other law enforcement
officers also found a dark green toboggan hanging on a limb aboutten or fifteen feet into the woods behind the location where
Stallings was found.
Stallings testified that he was riding with defendant and
three of defendant's friends when defendant randomly pulled the van
into the car lot. Then, the three friends jumped out and attempted
to steal the four-wheeler. Stallings denied any involvement in the
crime, insisting that he was merely riding along to see a friend.
He stated that one of the other men in the van wore a green
toboggan that evening, and that defendant never went to sleep when
the van stopped. Defendant also called Deputy Spruill, who
testified in conformity with her testimony already given for the
State's case-in-chief. Defendant appeared pro se at trial and did
not testify.
We note the State contends that defendant's appeal is subject
to dismissal for failure to include a copy of his written notice of
appeal from the superior court's judgment on 31 January 2001, in
violation of N.C. R. App. Proc. 9(a)(3)(h) (1999). However, in
accordance with Rule 9(a)(3)(h), defendant has included a copy of
his appellate entries entered by the superior court on 31 January
2001. This is well within the ten-day period in which a defendant
may timely appeal a conviction or sentence. Accordingly, we will
not dismiss this appeal on this basis.
However, we conclude that defendant has not properly preserved
for review the issue of the sufficiency of the evidence. At trial,
defendant did not move for dismissal at the close of the State's
evidence or at the close of all of the evidence. It is well-settled that “[a] defendant in a criminal case may not assign as
error the insufficiency of the evidence to prove the crime charged
unless he moves to dismiss the action . . . at trial.” N.C. R.
App. Proc. 10(b)(3) (1999). Moreover, while defendant contends
that his failure to properly preserve this issue should be excused
because he proceeded without counsel at trial, our Supreme Court
has previously been unwilling to excuse defendant's deficient
performance after he has elected to represent himself at trial.
See State v. Rich, 346 N.C. 50, 62, 484 S.E.2d 394, 402
(“[A]lthough [a defendant] may conduct his own defense ultimately
to his own detriment, his choice must be honored out of that
respect for the individual which is the life-blood of the law.”
(internal citations and quotations omitted)), cert. denied, 522
U.S. 1002, 139 L. Ed. 2d 412 (1997). Hence, having made the
decision to represent himself, defendant will not now be heard to
complain of that decision.
Even if the issue of the sufficiency of the evidence were
properly before the Court, we conclude that taking the evidence in
the light most favorable to the State, there was indeed substantial
evidence, from which a reasonable fact finder could conclude that
defendant (and his accomplices) took and carried away the Honda
four-wheeler of Richard Ochoa, without the consent of Ochoa, and
with the intent to permanently deprive Ochoa of the four-wheeler.
See State v. Ervin, 43 N.C. App. 561, 564, 259 S.E.2d 406, 407
(1979) (finding sufficient evidence to convict defendants found in
proximity to obvious larceny). Accordingly, this assignment oferror is overruled.
No error.
Judges GREENE and TYSON concur.
Report per Rule 30(e).
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