An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-824

NORTH CAROLINA COURT OF APPEALS

Filed: 18 May 2004

STATE OF NORTH CAROLINA

    v .                             Cumberland County
                                No. 00 CRS 070736
HOWARD WESLEY HELTON

    Appeal by defendant from judgment dated 26 March 2003 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 31 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State.

    The Kelly Law Firm, by George E. Kelly, III, for defendant-appellant.

    BRYANT, Judge.

    Howard Wesley Helton (defendant) appeals a judgment dated 26 March 2003, entered consistent with his conviction for attempted felonious larceny and having attained the status of habitual felon.
    The State's evidence tended to show the following: On 30 November 2000, George Mitchell was working as the security manager at a Target store located in Fayetteville, North Carolina. At approximately 9:00 a.m., Mitchell was viewing images from the store security camera when he saw defendant remove the security tag from a television. If not deactivated at a cash register, this tag triggers the alarm system stationed near the exit of the store. After witnessing removal of the security tag, Mitchell used a zoom camera to record defendant walking down a back aisle.    Defendant pushed his cart toward the front of the store, but did not attempt to exit through an exit door. Instead, he waited for someone to open an entrance door and then walked through that door into the store's outer vestibule. Mitchell stopped defendant, identified himself as store security, and asked defendant to come to the security office. Upon stopping defendant, Mitchell discovered defendant had both a television and a computer in the cart but did not have a receipt for either item. Once at the office, defendant became belligerent and refused to give any identification. Mitchell telephoned the police who took defendant into custody.
    Mitchell checked the price of both the television and computer using the store's computer system and item 'DPCI' numbers. The listed price for each item was $259.99 for the television and $849.00 for the computer. Mitchell double checked the prices with the prices listed on the shelves. The prices listed in the store's computer system and on the shelves matched.
    At trial, defendant testified he had pushed his cart into the outer vestibule area to look for his sister, who was planning to use her credit card to pay for the items. Defendant testified that he was not attempting to steal either the television or the computer.

_________________________

    This appeal involves whether the trial court: (I) committed plain error in allowing the State to cross-examine defendant concerning his prior incarceration and criminal convictions; (II)committed plain error by allowing the State to ask defendant about communications defendant had with his lawyer; (III) committed error by denying defendant's request for a jury instruction on the definition of “value”; (IV) committed plain error by not providing a jury instruction clarifying an element of felonious larceny; and (V) committed error by denying defendant's motion to dismiss the habitual felon indictment.
I

    First, defendant argues that the trial court committed plain error by allowing the State to cross-examine him in regard to his prior imprisonment, his prior criminal convictions, and the fact he had been taken into custody on a prior occasion by Target store security.
    Plain error is “a fundamental error so prejudicial that justice cannot have been done.” State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602-03 (2003). “To prevail, the 'defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.'” Id. (citation omitted). Plain error review is to be applied only to exceptional cases. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
    N.C. Gen. Stat. § 8C-1, Rule 609 states: “For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross-examination orthereafter.” N.C.G.S. § 8C-1, Rule 609 (2003). In addition, N.C. Gen. Stat. § 8C-1, Rule 404(b) permits such evidence for purposes of proving intent, motive, lack of mistake, opportunity, preparation, plan, and identity, while prohibiting admission of such evidence to prove defendant's character and action in conformity therewith. N.C.G.S. § 8C-1, Rule 404(b) (2003). Evidence admitted under Rule 404(b) is also subject to the requirements of Rule 403. See N.C.G.S. § 8C-1, Rule 403 (2003) (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”).
    In the instant case, defendant testified that he did not intend to steal either the television or the computer in his cart. Rather, he pushed his cart to the outer vestibule area only to look for his sister, who he thought may have been outside smoking, because she was going to use her credit card to pay for the items. On cross-examination, the State questioned defendant about his recent incarceration in prison for obtaining property by false pretenses and felony larceny. The State further cross-examined defendant concerning other misdemeanor and felony larceny convictions, some of which included incidents involving large retail stores similar to Target. The State also questioned defendant about having been stopped by store security at the same Target store in the past. Defendant raised no objection to this cross-examination by the State.
    The trial court did not err in allowing the State to impeachdefendant's credibility by use of his prior convictions. See N.C.G.S. § 8C-1, Rule 609. In addition, Rule 404(b) permitted use of defendant's prior convictions and other bad acts to show intent, lack of mistake, and a common plan. Defendant has not shown the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Accordingly, this assignment of error is overruled.
II

    Second, defendant argues that the trial court committed plain error by allowing the State to ask defendant if he had given his lawyer certain information following his arrest, as this line of questioning violates defendant's attorney-client privilege.
    “It is well settled that communications between an attorney and a client are privileged under proper circumstances.” State v. Bronson, 333 N.C. 67, 76, 423 S.E.2d 772, 777 (1992). “The attorney-client privilege belongs to the defendant and may be waived by him.” Id.
    In the instant case, defendant contends that the computer was on sale for $499.00 instead of the $899.00 list price. Defendant was asked if he had gone back to the store to confirm the sale price, to which he answered “no,” because he was not allowed back on Target's premises. Defendant was then asked whether he had told his attorney that the item was on sale and whether he had told his attorney to “[g]o check it right then and there.” Defendant answered “no,” because his attorney at the time repeatedly postponed meeting with or contacting defendant for a month or so.    Defendant failed to object to the question and did not raise the attorney-client privilege, but voluntarily answered all of the State's questions. Therefore, defendant waived the attorney-client privilege. See Id. This assignment of error is overruled.
III

    Third, defendant argues that the trial court erred by denying his request for a jury instruction on the definition of “value,” as the term is used in the sixth element of the crime of felonious larceny.
    When a defendant presents a request for a special jury instruction, that request must be granted if warranted by the facts of the case and if the requested instruction accurately states the law. State v. Golden, 143 N.C. App. 426, 434, 546 S.E.2d 163, 168 (2001). In the instant case, defendant requested a special jury instruction as to the term “value,” an element of felonious larceny. The transcript reveals the following colloquy:
    [DEFENSE]: Your Honor, with regard to the explanation in the charge of felonious larceny, one of the elements -- the sixth element being the value of the property, Your Honor, I would ask that there be some additional explanation or definition of the term value for the jury. . . .

    Your Honor, first of all, it being that the words [sic] value from State v. Haney does not mean the price at which the owner would sell but it means fair market value. The State v. Williams case being -- distinguishing the Haney case between private citizens and merchants and that because the Williams case involved merchants, at that point that the distinction between that the selling price is some evidence of value but that does not necessarily mean -- it's sufficient at that point to survive a motion to dismiss, but thatalone from this wouldn't appear to be sufficient. It's just a selling price, Your Honor, and that's the reason I would ask for some clarification as to value.

    THE COURT: I'm not sure I follow you.

    [DEFENSE]: Your Honor, what they said here is that the -- in the previous cases, the selling price was not competent as evidence of value for purposes of General Statute 14-72. Here the court held that, however, that whether a merchant has determined a retail price of merchandise which he is willing to accept as the worth of the item offered for sale, such a price constitutes evidence of fair market value sufficient to survive a motion to dismiss. And at that point, Your Honor, what I'm asking is that that's not -- that is not necessarily prima facie of the price.

    [PROSECUTION]: I think that's exactly what prima facie is, Your Honor.

    [DEFENSE]: Of the value.

    THE COURT: Maybe I missed something but it is what a willing seller will sell at and what a willing buyer will buy at is the historic definition of the fair market value and both of you can argue that to your heart's content. Otherwise, the request is denied.

    Our Court has clearly stated:
The “market value” of the stolen item is generally used in determining whether the crime is felonious or nonfelonious. Thus, in the case of common articles having a market value, the courts have . . . declared the proper criterion to be the price which the subject of the larceny would bring in open market -- its 'market value' or its 'reasonable selling price,' at the time and place of the theft, and in the condition in which it was when the thief commenced the acts culminating in the larceny.

State v. Dees, 14 N.C. App. 110, 112, 187 S.E.2d 433, 435 (1972) (footnote omitted) (citations omitted). See State v. Hall, 57 N.C.App. 544, 547, 291 S.E.2d 873, 876 (1982) (“'[M]arket value' of a stolen item is the criterion used to determine the worth of personal property which was the subject of a larceny.”).
    Defendant's requested jury instruction did not encompass a correct statement of law as to the definition of value, and therefore, the trial court properly denied defendant's request. This assignment of error is overruled.

IV

    Fourth, defendant argues that the trial court committed plain error by not providing a jury instruction on the definition of “worth” as the term was used in the court's instruction on non- felonious and felonious larceny.
    In State v. Barton, our Supreme Court held that trial courts are not required to frame its jury instructions with any greater particularity than is necessary for a jury to understand and apply the law. State v. Barton, 335 N.C. 696, 703, 441 S.E.2d 295, 298 (1994). Therefore, it is only necessary for the trial court to give jury instructions so complete and with enough precision so as to allow the jury to apply the law to the facts as they find them to be.
    In the instant case, the trial court instructed the jury as follows:
For you to find the defendant guilty of attempted felonious larceny, the state must prove two things beyond a reasonable doubt. First, that the defendant intended to commit felonious larceny. And at this time I'm going to give you the elements of that offense in respect to felonious larceny or the attempt to commit felonious larceny. First, that thedefendant attempted to take property belonging to another person. Secondly, that the defendant attempted to carry away property. Thirdly, that the victim did not consent to the attempted taking and carrying away of the property. Fourth, that at the time of the attempted taking, the defendant intended to deprive the victim of its use permanently. Fifth, that the defendant knew he was not entitled to take the property. And six, that the property was worth more than $1000.

    . . . .

    . . . If you do not find -- so find or if you have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of attempted felonious larceny but must determine whether the defendant is guilty of the lesser[-]included offense of attempted nonfelonious larceny.

    Attempted nonfelonious larceny differs from attempted felonious larceny in that the property need not be worth more than $1000.

(emphasis added).
    This instruction is a reflection of the North Carolina Pattern Jury instruction for felonious larceny, which reads:
    Now I charge that for you to find the defendant guilty of felonious larceny, the State must prove six things beyond a reasonable doubt:
    
    First, that the defendant took property belonging to another person.

    Second, that the defendant carried away the property.

    Third, that the victim did not consent to the taking and carrying away of the property.

    Fourth, that at the time of the taking, the defendant intended to deprive the victim of its use permanently.

    Fifth, that the defendant knew he was not entitled to take the property.
    And sixth, that the property was worth more than $1000.

    . . . .

    If you do not find the defendant guilty of felonious larceny, you must determine whether he is guilty of non-felonious larceny. Non-felonious larceny differs from felonious larceny in that the property need not be worth more than $1000.

1 N.C.P.I. --Crim. 216.10 (1991).
    Defendant has not shown that the jury instruction was so void of precision that the jury could not understand the concept of “worth,” and apply that concept to the facts of this case. This assignment of error is overruled.

V

    Last, defendant argues that the trial court committed error by denying his motion to dismiss the habitual felon indictment, because the indictment violates his constitutional rights as the prosecution had unfettered discretion in determining whether to present the indictment.
    Our courts have held the procedures set forth in the Habitual Felon Act comport with a criminal defendant's federal and state constitutional guarantees. Further, the clear mandate of North Carolina Constitution art. IV, § 18, stating the District Attorney shall . . . be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, N.C. Const. art. IV, § 18, is that “the responsibility and authority to prosecute all criminal actions . . . is vested solely,” [. . .] with the various elected district attorneys.

    It is well established that there may be selectivity in prosecutions and that the exercise of this prosecutorial prerogativedoes not reach constitutional proportion unless there be a showing that the selection was deliberately based upon “an unjustifiable standard such as race, religion or other arbitrary classification.”

    For defendant to have prevailed on his motion, therefore, he must have shown that the instant “prosecutorial system was motivated by a discriminatory purpose and had a discriminatory effect.”

State v. Wilson, 139 N.C. App. 544, 550-51, 533 S.E.2d 865, 870 (2000) (citations omitted) (some alterations in the original), cert. denied, 537 U.S. 956, 154 L. Ed. 2d 306 (2002).
    Upon review of the record, we hold defendant has failed to present any evidence reflecting an improper motive by the prosecutor in its decision to present the habitual felon indictment. This assignment of error is overruled.
    No error.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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