Appeal by defendant from judgment dated 6 February 2002 by
Judge D. Jack Hooks, Jr. in Cumberland County Superior Court.
Heard in the Court of Appeals 10 September 2003.
Attorney General Roy Cooper, by Assistant Attorney GeneralJeffrey R. Edwards, for the State.
Jeffrey Evan Noecker for defendant-appellant.
BRYANT, Judge.
Clarence Antonio Owens (defendant) appeals a judgment and
commitment dated 6 February 2002 entered consistent with a jury
verdict finding him guilty of felonious larceny and felonious
possession of stolen goods.
On 7 November 2000, defendant was indicted on charges of
felonious breaking and entering, felonious larceny, felonious
possession of stolen goods, and conspiracy to commit felonious
breaking and entering. With respect to the charge of felonious
larceny, the indictment stated in pertinent part that defendant
“unlawfully, willfully and feloniously did steal, take and carry
away assorted cigarettes, the personal property of Economy Food
Center, Incorporated . . . having a total value of . . .
$3,500.00.” Defendant was also separately indicted for being a
habitual felon.
The evidence at trial revealed that an Economy Food store in
Cumberland County, North Carolina was broken into during the early
morning hours of 14 February 2000. The perpetrator, who was caught
on tape by the store's surveillance camera, had shattered the glass
door of the business to gain entrance, thereby triggering the
store's alarm system, and loaded approximately $3,500.00 worth of
cigarette cartons into a white agricultural bag. The identity of
the perpetrator could not be determined from the video footage as
he was wearing a mask. Nobody was present at the scene when thepolice arrived.
At approximately nine o'clock in the morning on 15 February
2000, James Smith, a local pharmacist, was driving on a road near
the Economy Food store when he noticed a van parked on his
grandfather's farm. When Smith stopped to investigate, he saw a
woman sitting on the passenger side of the van. Smith asked the
woman if she was having car trouble, to which she replied “No.”
The woman appeared very nervous, and upon further inquiry by Smith,
she said she was waiting for her brother. Having become suspicious
of the situation, Smith began following a trail of footprints he
saw on the ground leading away from the van and noticed a man
pulling a large white bag. Smith called out to the man, asking
what he was doing, and then placed a telephone call on his cell
phone to his neighbor, a state highway patrolman, asking him to
come over. Subsequently, Smith again asked the man what he was
doing on the property and also inquired about the contents of the
bag. The man initially told Smith “it didn't concern [him].” Some
moments later though, the man explained he was “doing this for
Chief,” whom he claimed to be the owner of the property. Shortly
thereafter the man “took off running,” leaving the bag behind.
When Smith looked inside the abandoned bag, he saw that it was full
of cigarettes. At trial, Smith identified defendant as the man he
had seen that day.
Sherman Ammons, whose nickname is “Chief,” testified that he
was currently serving a prison sentence pursuant to a plea
agreement for his involvement in the break-in of the Economy Food
store on 14 February 2000. Ammons testified that on that date, heand defendant had driven around to locate a suitable store to break
into for cigarettes. After having chosen the Economy Food store,
defendant put on his gloves and ski mask. Ammons, the driver,
pulled up to the store front, and defendant exited the vehicle and
retrieved his bag from the trunk. According to Ammons, this bag
was the same one abandoned in Smith's presence on 15 February 2000
and introduced into evidence at trial. Defendant then broke the
glass panel of the store door with a bolt cutter, thereby setting
off the alarm, which in turn prompted Ammons to drive away as
defendant stepped inside the store. Around nine in the morning on
15 February 2000, Ammons received a telephone call from defendant
asking him to pick defendant up on a dirt road approximately two
and a half to three miles from the Economy Food store. When Ammons
met defendant at the arranged location, defendant told him he had
hidden the bag of cigarettes in a barn; but when he returned to the
place with his sister to collect it, he ran away without the bag
when the property owner noticed him.
The State further introduced evidence of two additional break-
ins committed by defendant in Cumberland County that occurred
between 14 February 2000 and the time of defendant's arrest. This
evidence included a break-in at a B.P. gas station during the early
morning hours on 27 November 2000, which also involved the breaking
of a glass door for entry and the carrying away of cartons of
cigarettes in a large white bag. At the scene, a police officer
was able to identify defendant in flight and dropping the bag of
stolen cigarettes in the process. The other incident occurred on
21 February 2001, a little over a year after the Economy Food storebreak-in. During a police surveillance operation at the Smokers'
Depot in Fayetteville, a vehicle arrived, from which a man carrying
a white agricultural bag exited. The man shattered the glass front
door of the business and proceeded toward a display case of Newport
cigarettes. After placing the cigarettes in his bag, the man
became aware of the police and fled. Two officers at the scene,
however, were able to identify the man as defendant. The police
searched for defendant, but did not find and arrest him until 8
March 2001.
At the conclusion of the State's evidence, defendant made a
motion to dismiss all the charges. The motion was denied, and
defendant testified in his own defense, denying participation in
the Economy Food store break-in. During cross-examination, the
State asked defendant about his prior convictions, including having
previously been found to be a habitual felon. At the end of all
the evidence, defendant renewed his motion to dismiss, which the
trial court denied. The jury returned a verdict finding defendant
guilty of felonious larceny and felonious possession of stolen
goods but deadlocked as to the charges of felonious breaking and
entering and conspiracy to commit felonious breaking and entering.
Subsequently, the trial court entered judgment as to both felonious
larceny and felonious possession of stolen goods and sentenced
defendant as a habitual felon.
______________________
The issues on appeal are whether: (I) the trial court erred in
failing to arrest judgment on the felonious possession of stolen
goods conviction; (II) the incomplete recording of the trialproceedings deprived defendant of his right to meaningful appellate
review; (III) the trial court erred in denying defendant's motion
to dismiss; (IV) the trial court abused its discretion in admitting
evidence of the additional break-ins; (V) it was plain error for
the trial court to allow the State to question defendant on his
status as a habitual felon; and (VI) the trial court's failure to
intervene
and declare a mistrial based on certain comments by the
State amounted to plain error.
I
[1] Our review of the record on appeal has revealed a
substantial error relating to the judgment in this case that has
not been raised by defendant. We thus exercise our discretion
under the North Carolina Rules of Appellate Procedure to address
this error.
See N.C.R. App. P. 2. In entering judgment on both
the felonious larceny and possession convictions, which were based
on the taking and possession of the same items, i.e. $3,500.00
worth of cigarettes, the trial court violated the rule established
in
State v. Perry that while a defendant may be indicted and tried
on charges of larceny and possession of the same property, the
defendant may be convicted of only one of the offenses.
State v.
Perry, 305 N.C. 225, 236-37, 287 S.E.2d 810, 817 (1982);
see State
v. Adams, 331 N.C. 317, 333, 416 S.E.2d 380, 389 (1992). The
judgment should therefore have been arrested as to the felonious
possession conviction.
See State v. Hargett, 157 N.C. App. 90, 93,
577 S.E.2d 703, 705 (2003). Because consolidation of the
convictions for judgment does not cure this error, we vacate that
portion of the judgment and remand for entry of judgment andsentencing on the larceny conviction.
See State v. Barnett, 113
N.C. App. 69, 78, 437 S.E.2d 711, 717 (1993).
II
[2] In his first assignment of error, defendant contends the
failure to properly record the criminal proceedings effectively
deprived him of the right to meaningful appellate review, entitling
him to a new trial. In his brief to this Court, defendant explains
that, prior to trial, he had moved for and was allowed recordation
of all the proceedings; yet, during jury selection, conducted in a
different courtroom, no court reporter or transcriptionist was
present and only microphones and a video camera were used. As a
result, there are numerous places in the transcript where the
transcriptionist who prepared the transcript for appeal noted that
there was “[n]o audible response” and that she was “unable to see
a visual response” from the potential jurors.
Defendant, however, makes no attempt to explain to this Court
how he was prejudiced at the trial level. As this Court has
previously held, “the use of general allegations [of prejudice] is
insufficient to show reversible error resulting from the loss of
specific portions of testimony caused by gaps in recording.”
In re
Clark, 159 N.C. App. 75, 80, 582 S.E.2d 657, 660 (2003) (rejecting
the respondent's argument for a new trial after she had “generally
asserted that the failure to record all of the testimony . . . was
prejudicial, [but had] point[ed] to nothing specific in the record
to support her argument”). Moreover, a review of the transcript
reveals that all of the questions posed by counsel prior to and
comments made immediately following the missing responses areincluded in the transcript and at no point was such a missing
response followed by an objection from defense counsel. Because
the context of the questioning and the likely responses that were
elicited from the potential jurors are therefore ascertainable from
the record, defendant was not denied meaningful appellate review,
see State v. Hammonds, 141 N.C. App. 152, 166, 541 S.E.2d 166, 177
(2000) (overruling the defendant's argument where a “review of the
record . . . satisfie[d the Court] that while some specific
portions of the record [were] indeed lost, in every case the
context of the purportedly objectionable rulings [could] be
reconstructed”),
aff'd, 354 N.C. 353, 554 S.E.2d 645 (2001) (per
curiam), and his argument is without merit.
III
[3] We next address defendant's argument that the trial court
erred in denying his motion to dismiss the charge of felonious
larceny.
(See footnote 1)
In order to withstand a motion to dismiss, the State must
present substantial evidence of each essential element of the
offense and of the defendant's identity as the perpetrator.
State
v. Riddle, 300 N.C. 744, 746, 268 S.E.2d 80, 81 (1980).
“Substantial evidence is such relevant evidence that a reasonable
mind might accept as adequate to support a conclusion.”
State v.
Morgan, 111 N.C. App. 662, 665, 432 S.E.2d 877, 879 (1993). In
reviewing the trial court's denial of a motion to dismiss, theevidence must be construed in the light most favorable to the
State.
State v. Neal, 109 N.C. App. 684, 686, 428 S.E.2d 287, 289
(1993). To convict a defendant of felonious larceny, it must be
shown that he: (1) took the property of another, (2) with a value
of more than $1,000.00, (3) carried it away, (4) without the
owner's consent, and (5) with the intent to deprive the owner of
the property permanently.
State v. Reeves, 62 N.C. App. 219, 223,
302 S.E.2d 658, 660 (1983); N.C.G.S. § 14-72(a) (2001).
In this case, the evidence, taken in the light most favorable
to the State, established all the elements of felonious larceny.
Ammons testified that he and defendant had agreed to break into the
Economy Food store to steal cigarettes and that he had seen
defendant, who was equipped with a large white bag, break the
glass door of the store and enter the building. Ammons left when
the store's alarm went off but met defendant again the next
morning. At this meeting, defendant told Ammons he had hidden the
bag containing the stolen cigarettes in a barn near the store but
had abandoned it after the property owner appeared. This version
of the events is corroborated by Smith's testimony of having seen
defendant on his grandfather's farm attempting to carry away a
large bag filled with cigarettes. In addition, the cigarettes
stolen from the Economy Food store were valued at $3,500.00, thus
exceeding the required threshold amount for felonious larceny.
See
N.C.G.S. § 14-72(a). As this evidence was sufficient to overcome
defendant's motion to dismiss, this assignment of error is
overruled.
IV
[4] Defendant also contends the trial court abused its
discretion in admitting evidence of the additional break-ins that
occurred after 14 February 2000. Defendant concedes in his brief
to this Court that this evidence was properly admitted under Rule
404(b) of the North Carolina Rules of Evidence for the purpose of
establishing identity,
modus operandi, and common plan or scheme
and restricts his argument to whether the probative value of the
evidence outweighed the danger of unfair prejudice under Rule 403.
Rule 403 requires the trial court to determine “whether the
incidents are sufficiently similar and not too remote in time so as
to be more probative than prejudicial.”
State v. Schultz, 88 N.C.
App. 197, 202, 362 S.E.2d 853, 857 (1987),
aff'd, 322 N.C. 467, 368
S.E.2d 386 (1988) (
per curiam).
The required degree of similarity
is that which results in the jury's “reasonable inference” that the
defendant committed both the prior and present acts.
State v.
Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). The
decision to exclude evidence under Rule 403 is a matter within the
sound discretion of the trial court.
State v. White, 349 N.C. 535,
552, 508 S.E.2d 253, 264-65 (1998).
Although the additional break-ins occurred nine and twelve
months after the Economy Food store break-in, this lapse of time is
not too remote considering the great similarity between these
incidents and the Economy Food store break-in in terms of the
identity of the perpetrator, the method of entry, the type of bag
used, and the goods stolen.
See State v. Wortham, 80 N.C. App. 54,
62, 341 S.E.2d 76, 81 (1986) (“[e]vidence may be admitted even
though remote in time, if its 'signature' value is high”),
rev'd inpart on other grounds, 318 N.C. 669, 351 S.E.2d 294 (1987).
Defendant was identified by police officers at both the 27 November
2000 and the 21 February 2001 break-in; defendant gained entry to
the stores in the same manner as was employed at the Economy Food
store, i.e. shattering the glass panel of the front door; and
during each break-in, the perpetrator used a large white bag to
carry away cartons of cigarettes. Based on the signature value of
this evidence, the trial court therefore did not abuse its
discretion in concluding that any prejudicial effect was
substantially outweighed by the probative value of admitting the
evidence.
V
[5] Defendant further asserts it was plain error for the trial
court to allow the State to question defendant with respect to his
having previously attained the status of habitual felon. We
disagree.
During cross-examination, the State made inquiry as to
defendant's criminal record, concluding with the questions,
answered in the affirmative by defendant, “What about being a[]
habitual felon?” and “[Y]ou, sir, are a[] habitual felon, isn't
that correct?” Defendant argues this was in violation of N.C. Gen.
Stat. § 14-7.5, which prohibits the State from revealing to the
jury the existence of a
pending habitual felon indictment unless
the defendant has already been found guilty of the principal felony
charged.
See N.C.G.S. § 14-7.5 (2001). In this case, however, the
State's questions did not refer to the pending habitual felon
indictment against defendant but simply served to elicitinformation on defendant's criminal record, including a
previous
habitual felon conviction.
See State v. Aldridge, 67 N.C. App.
655, 659, 314 S.E.2d 139, 142 (1984) (“[i]t is well established
that, if the accused takes the stand in his own behalf, he may be
questioned about prior convictions”). Thus, section 14-7.5 was not
violated.
See id. (finding no violation of section 14-7.5 in the
absence of any evidence that the jury knew of the present habitual
felon indictment during the trial on the underlying offense).
Accordingly, the trial court did not err in failing to intervene
during this line of questioning.
VI
[6] In his next assignment of error, defendant contends the
trial court's failure to intervene and declare a mistrial based on
certain comments by the State during closing arguments amounted to
plain error.
Plain error analysis requires a defendant to show a
“'fundamental error, something so basic, so prejudicial, so lacking
in its elements that justice cannot have been done.'”
State v.
Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting
United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnote
omitted)). After a thorough review of the transcript in this case,
we conclude that none of the State's comments constituted error;
however, even if they had amounted to error, considering the
evidence presented against defendant at trial (as discussed in
issue III), defendant cannot show that the comments were so
prejudicial as to amount to plain error. Consequently, this
assignment of error is overruled. In light of the need to remand this case for resentencing, we
do not address defendant's remaining assignment of error
challenging his sentence.
Trial -- no error.
Sentencing -- vacate felonious possession of stolen goods
conviction and remand for resentencing on felonious larceny
conviction.
Judges MARTIN and GEER concur.
Footnote: 1