An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-675
                                          &nb sp; 

Filed: 17 February 2004


v .                         Wake County
                            Nos. 01 CRS 104377, 02 CRS 11636

    Appeal by defendant from judgment entered 14 November 2002 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 28 January 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State.

    William B. Gibson, for defendant-appellant.

    LEVINSON, Judge.

    Clarence Allen Giles (defendant) appeals from his conviction of felonious larceny and his status as an habitual felon. We find no error in the felonious larceny conviction, but reverse the habitual felon conviction and remand for a new trial.
    The evidence tends to show the following. On 19 July 2001, defendant and Eric Young entered the Sam's Wholesale store on South Saunders Street in Raleigh. Towanda Battle, the store's checkout supervisor, observed defendant and Young enter the store together. Battle estimated that the two men spent ten to fifteen minutes inside the store before they reappeared together at the checkout area. Young was pushing a long flat cart with one box on it.Battle directed the men towards a cash register operated by Pamela McConahay to check out.
    McConahay informed Battle that there was a problem with the box defendant and Young presented at the checkout counter. The box's label indicated that it was filled with Styrofoam cups. The box had been opened, re-taped shut and had a bulge in its side. Battle opened the box and found, in addition to Styrofoam cups, boxes of Tylenol, Advil and other medicines. Battle called Deborah Sykes, the manager on duty, for assistance.
    Defendant walked out of the store while Battle was calling Sykes. Young told Battle and Sykes that he did not know there was medicine in the box. Young began pushing the cart and the opened box towards the store exit. Defendant returned and helped Young push the cart to the exit, despite the employees' attempts to stop them. Defendant and Young eventually abandoned the cart and the box and fled from the store.
    Sykes determined that the merchandise inside the box was valued at $4,733. Defendant was indicted and convicted of felonious larceny. Defendant was also indicted as an habitual felon and admitted to having this status at trial.

    Defendant contends that his motion to dismiss should have been granted by the trial court because the evidence did not indicate that defendant acted in concert with Young or that defendant had knowledge of the box's contents. We disagree.     When reviewing a motion to dismiss based upon insufficiency of the evidence, “the trial court is to consider the evidence in the light most favorable to the State” while giving the State “every reasonable intendment and every reasonable inference to be drawn from the evidence. . . .” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982) (citations omitted). Given these inferences, “the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense.” Earnhardt, 307 N.C. at 65-66, 296 S.E.2d at 651. “The essential elements of larceny are that the defendant: (1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of his property permanently.” State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982). If the property taken has a value greater than $1,000, the larceny is classified as a felony. N.C.G.S. § 14-72(a) (2003). Under the acting in concert theory, a defendant “may be found guilty of committing the crime if he is at the scene acting together with another with whom he shares a common plan to commit the crime, although the other person does all the acts necessary to effect commission of the crime.” State v. Abraham, 338 N.C. 315, 346, 451 S.E.2d 131, 147 (1994).
    Viewing the evidence in the light most favorable to the State, the trial court did not err in denying the motion to dismiss. Defendant entered the store with Young and reappeared after a shorttime, still with Young, at the checkout area. The box that defendant and Young brought to the checkout area had been obviously tampered with. After the contents of the box were revealed, Young and defendant attempted to take the box outside the store. Given the numerous opportunities that defendant had to look inside the open box, it is reasonable to infer that defendant knew the box was filled with significant quantities of medicines in addition to cups. The behavior of the Sam's employees clearly indicated that Young had not paid for the merchandise and was not free to leave with the box. The circumstances suggest defendant formed a common plan with Young to steal the box and its contents. This assignment of error is overruled.
    Defendant further argues that his stipulation of the fact that Young pled guilty to felonious larceny violated defendant's constitutional rights to confrontation of the witnesses against him. Defendant also contends that defense counsel's actions deprived him of his constitutional right of effective assistance of counsel. We disagree.
    Here, the trial Court read the following statement to the jury:
        The parties have entered into a stipulation that Eric Young, who was also charged in this offense, has pled guilty to the crime of larceny occurring on July 19th, 2001 at Sam's Wholesale, Inc. It's signed by the attorney for the defendant and by Miss Shekita for the State.
    “A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate courtfinds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.” N.C.G.S. § 15A-1443(b) (2003). The Sixth Amendment to the United States Constitution guarantees a defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. “It is settled that the constitutional right of an accused to confront the witnesses against him may be waived even in a capital case. . . .” State v. Splawn, 23 N.C. App. 14, 18, 208 S.E.2d 242, 245 (1974). “While every reasonable presumption will be indulged against a waiver of fundamental constitutional rights by a defendant in a criminal prosecution, a defendant may waive the benefit of constitutional guarantees by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.” State v. Hutchins, 303 N.C. 321, 341-42, 279 S.E.2d 788, 801 (1981) (citations omitted). This Court has stated that a defendant's right to confront witnesses may be waived “by an accused's counsel acting in his behalf” and does not require action by the defendant. Splawn, 23 N.C. App. at 18, 208 S.E.2d at 245.     Assuming arguendo that evidence of Young's plea violated defendant's right of confrontation, defendant expressly waived that right by agreeing to the stipulation. Therefore, G.S. § 15A- 1443(b) cannot be applied here, because defendant has surrendered the constitutional right that he now argues was violated.
    Defendant further argues that defense counsel's agreement to the stipulation was an action that denied him effective assistance of counsel. We disagree.     To show ineffective assistance of counsel, “the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984); see State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). “The question becomes whether a reasonable probability exists that, absent counsel's deficient performance, the result of the proceeding would have been different.” State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987). “[I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel's alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel's performance was actually deficient.” Braswell, 312 N.C. at 563, 324 S.E.2d at 249.
    The evidence of defendant's guilt was compelling. Defendant has not shown a reasonable probability that his trial would have a different outcome had the stipulation not been made. Defendant has failed to demonstrate any prejudice to his case as a result of the stipulation. This assignment of error is overruled.
    Finally, defendant argues that the trial court incorrectly sentenced defendant as an habitual felon. We agree.
    In order to convict a defendant as an habitual felon, a defendant must be found guilty after submission of the issue to thejury or the defendant must enter a plea of guilty. See N.C.G.S. § 14-7.5 (2003); State v. Gilmore, 142 N.C. App. 465, 471, 542 S.E.2d 694, 699 (2001) (citing State v. Williams, 133 N.C. App. 326, 330, 515 S.E.2d 80, 83 (1999)). A stipulation by a defendant to his status as an habitual felon, “in the absence of an inquiry by the trial court to establish a record of a guilty plea, is not tantamount to a guilty plea.” Gilmore, 142 N.C. App. at 471, 542 S.E.2d at 699. This Court has held that a trial court must meet the requirements outlined in N.C.G.S. § 15A-1022(a) (2003) before accepting a defendant's guilty plea as an habitual felon. See State v. Bailey, 157 N.C. App. 80, 88-89, 577 S.E.2d 683, 689 (2003). Because the trial court did not make the inquiries required by G.S. § 15A-1022(a), defendant's conviction as an habitual felon must be reversed.
    We find no error in defendant's felonious larceny conviction. We reverse defendant's conviction as an habitual felon and therefore order a new trial in 02 CRS 11636. Defendant must thereafter be resentenced.
    No error in part, reversed in part and remanded for new trial.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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