STATE OF NORTH CAROLINA
v
.
Wake County
Nos. 01 CRS 104377,
02 CRS 11636
CLARENCE ALLEN GILES
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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