STATE OF NORTH CAROLINA
v. Wake County
No. 03 CRS 872
BARNEY KOUYEN HUANG
Attorney General Roy Cooper, by Assistant Attorney General M.
Lynne Weaver, for the State.
Kevin P. Bradley, for defendant-appellant.
CALABRIA, Judge.
Barney Kouyen Huang (“defendant”) was charged with misdemeanor
larceny for theft of a vacuum cleaner hose from Sam's Club on South
Saunders Street in Raleigh, North Carolina. Alfred Anthony Cervini
(“Cervini”), a loss prevention specialist for Sam's Club, testified
that he was assigned to the South Saunders Street store on 22
December 2002 for the purpose of re-training the store's loss
prevention officer. While patrolling the store, Cervini observed
defendant remove a vacuum cleaner hose from an aisle display and
conceal the hose underneath his shirt and jacket, stuffing one end
of the hose down into his pants. Cervini followed defendant until
he joined his wife, Lingy Huang (“Huang”), at the store's bakerydepartment. Defendant and Huang proceeded to a checkout line,
where Huang purchased three food items. On their way out of the
store, they placed some empty boxes in the shopping cart and exited
separately. Cervini followed defendant outside the store and
confronted him about the vacuum hose. In response to defendant's
repeated denials, Cervini tapped on a protuberance above
defendant's shoulder created by the end of the hose and asked
defendant to follow him back into the store.
When they reached the manager's office, Cervini asked
defendant again about the vacuum hose. Defendant unzipped his
jacket, removed the hose from beneath his shirt, and threw it to
the floor, striking Cervini on the legs. When defendant refused to
produce identification, Cervini called the police. While waiting
for the police to arrive, defendant “kept getting up saying he had
to leave” and walking toward the office door. When Cervini stood
up to stop him, defendant “would stare [Cervini] down” before
returning to his seat. Defendant then placed his hands inside his
jacket as though to tuck in his shirt. Cervini asked defendant “to
keep your hands where I can see them[,]” for safety reasons.
Defendant then put his right hand in his jacket pocket. After
twice complying with Cervini's requests to keep his hands visible,
defendant put his right hand back into his pocket and “started
rocking back and forth” and “staring straight ahead,” ignoring
Cervini. When defendant failed to heed an additional request to
remove his hand from his pocket, Cervini grabbed his wrist. Then
defendant pushed Cervini into Terry Stratton (“Stratton”) a front-end store manager, who was also in the office. Cervini announced
he was going to handcuff defendant and grasped him by the wrist a
second time. Defendant again pushed Cervini away, and then he
backed into a corner of the room. When the police arrived, Cervini
heard one of the officers ask defendant why he did it, and
defendant said “because he bought a defective vacuum cleaner from
Sam's Club.”
Stratton testified that she was working as the front-end
manager of the South Saunder's Street Sam's Club store on 22
December 2002, when Cervini notified her that he was preparing to
stop a suspected shoplifter. Stratton followed Cervini outside and
watched him ask defendant “at least twice” about the hose. When
defendant insisted he had not taken anything, Cervini tapped him on
the shoulder “as if to point out to him that he really had
something there.” Stratton accompanied the two men to her office,
where she witnessed the following:
We came in, we shut the door. And Mr. Cervini
had asked [defendant] for the merchandise. He
said he didn't have any. [Cervini] did ask
him for [it] a couple of times, then finally
[defendant] pulled this hose out from under
his jacket, he had his jacket on. [Cervini]
asked him for identification. He didn't have
any. And he started mumbling that we can
replace it. He didn't need it. He needed to
go, needed to go get some money, needed to go
get his wife. . . .
Stratton corroborated Cervini's account that defendant was “very
agitated, wanted to leave[,]” and “kept putting his hands in his
pockets” while they waited for the police. After asking defendant
three or four times to keep his hands in view, Cervini grabbed himby the wrist in an attempt to handcuff him. Stratton left the
office when the police arrived.
Raleigh Police Officer Sam Keeler (“Keeler”) responded to the
call from Sam's Club and found defendant in the manager's office.
Keeler noticed that defendant's pants were unzipped. Defendant
told Keeler that he had no identification and ignored Keeler's
instructions to keep his hands out of his pockets. After patting
down defendant's clothing, Keeler asked defendant what had
happened. Defendant told Keeler “that he bought a vacuum cleaner
and the hose was defective, and he went ahead and was replacing
it.” Defendant did not appear to be injured and was not carrying
a box. When Huang arrived in her car to pick up defendant,
however, Keeler noticed boxes in her car.
Defendant testified in his own defense, characterizing the
State's evidence as “all [a] bunch of lies[.]” He denied
concealing the hose beneath his clothing and claimed that the hose
in question would not fit his vacuum cleaner. As defendant and
Huang were leaving the store, she asked him to pick up two of the
empty cardboard boxes which were provided for customers at the
checkout counter. Defendant placed one of the boxes in Huang's
cart and carried the second one with him. While standing by the
exit door waiting for his wife to pick him up in her car, defendant
heard a “little noise” inside the box. He opened the box and
discovered a hose. At this moment, Cervini approached defendant
and ordered him into the store's office. Defendant tucked the hose
under his arm and carried the box with him. Once in the office,defendant placed the box on a chair, handed Cervini the hose, and
explained that he found the hose in the box. Cervini replied that
he had watched defendant on a store surveillance camera open a box
and take the hose. Defendant asked Cervini to go find the open
box. Cervini went to look for the box and was gone “a long time.”
When he returned, Cervini was “very irritated” and tried to
handcuff defendant. Cervini scratched defendant's wrists with the
edge of the handcuffs, drove his knee into defendant's bad knee,
twisted defendant's arm “even harder[,]” and said defendant would
“suffer more” if he did not cooperate. When the police arrived,
defendant's wife provided them with his social security number.
Police confirmed defendant's identity and rushed him out of the
store. Defendant took the box with him as evidence. As a result
of his encounter with Cervini, defendant had injuries: bruised and
scratched wrists, a sore shoulder for almost a month, and an
injured knee for which he sought medical treatment.
Huang confirmed that defendant picked up two empty boxes as
they were exiting the store. Since she could not see over the
boxes stacked in her cart, defendant waited by the store exit with
one box while she retrieved the car. Unable to locate her husband
when she returned, Huang circled the parking lot two or three times
before going back into the store. Officer Keeler brought her to
the office, where Huang saw a cardboard box resting next to a
chair. Defendant's wrists were “kind of bloody,” and he had blood
on his shirt.
I. Amendment of the Citation On appeal, defendant first argues that the trial court erred
in allowing the State to amend the citation at the beginning of
trial to change the name of the property's owner from “Sam's Club”
to “Sam's Club, Incorporated[.]” The transcript reflects the
following exchange regarding the State's motion:
[PROSECUTOR]: Your Honor, State would like to
amend this citation in this matter just to
include incorporated after Sam's Club.
THE COURT: Any objection?
[DEFENSE COUNSEL]: I have no objection.
. . .
THE COURT: So it would be the personal
property of Sam's Club, Incorporated?
[PROSECUTOR]: Yes, Your Honor.
THE COURT: Motion to amend is allowed.
Under N.C. Gen. Stat. § 15A-922(f) (2003), “[a] statement of
charges, criminal summons, warrant for arrest, citation or
magistrate's order may be amended at any time prior to or after
final judgment when the amendment does not change the nature of the
offense charged." In State v. Reeves, 62 N.C. App. 219, 302 S.E.2d
658 (1983), we held that “[a]mending the arrest warrant at trial to
change the owner of the property taken does not change the nature
of the offense charged. After the amendment, defendant was tried
for the same offense that is alleged in the warrant.” Id. at 224,
302 S.E.2d at 661. Although here defendant was charged by citation
rather than by warrant, the statute at issue makes no distinction
between an arrest warrant and a citation. Defendant's case is
indistinguishable from Reeves, and his assignment of error isoverruled.
II. Denial of Motion to Dismiss
Defendant next argues that the trial court erred in denying
his motion to dismiss because there was no evidence that the vacuum
hose was owned by an entity named “Sam's Club, Incorporated” as
alleged in the amended citation. Specifically, he contends, “The
only proof was of ownership by 'Sam's Club', not a legal entity
capable of owning property.”
“[U]pon a motion for nonsuit in a criminal case, the evidence
must be taken in a light most favorable to the State and the Court
must give the State the benefit of every reasonable inference which
arises from the evidence.” State v. Jetton, 1 N.C. App. 567, 569,
162 S.E.2d 102, 104 (1968). In order to support a charge of
larceny, the State must prove 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 the
property permanently.” State v. Perry, 305 N.C. 225, 235, 287
S.E.2d 810, 816 (1982) (footnote 7). Moreover, “the evidence at
trial must establish that the person named in the indictment is
either the owner, the bailee, or has an otherwise special interest
in the property stolen.” State v. Downing, 313 N.C. 164, 166, 326
S.E.2d 256, 258 (1985).
Defendant does not contest the sufficiency of the evidence
that he took the vacuum hose from the Sam's Club store without
permission and with the requisite intent. Instead, he cites a
variance between the owner named in the citation, “Sam's Club,Incorporated[,]” and the witnesses' references to “Sam's Club” and
“Sam's[.]” He notes that neither Cervini nor Stratton expressly
identified their employer as a corporation.
This Court addressed a similar argument in State v. Daye, 45
N.C. App. 316, 262 S.E.2d 704 (1980) and concluded that the failure
of State's witnesses to identify the retail store as a corporation
as alleged in the indictment did not constitute a fatal variance:
In the case sub judice, the indictment alleged
that J. Riggings, Inc. owned the two suits.
The proof was that they were owned by "J.
Riggings, a man's retailing establishment,"
"J. Riggings store" and "J. Riggings." The
question posed by this appeal is whether this
proof is so at variance with the indictment
that the case should be dismissed. We hold
that it is not. The evidence was that the
suits were owned by the entity named in the
indictment. We hold that it was not a fatal
variance that no one testified J. Riggings was
a corporation.
Id. at 317-18, 262 S.E.2d at 705.
The evidence established that defendant stole merchandise on
display for sale at a Sam's Club retail store. There was no
evidence that the hose was owned by an individual or entity other
than the owner named in the citation. In accordance with Daye, we
find no fatal variance between the allegations in the citation and
the State's proof at trial. To the extent defendant challenges
Sam's Club's capacity to own property, we further find the
circumstances support a reasonable inference that Sam's Club had
possession and control of the merchandise on display in its retail
store.
III. Ineffective Assistance of Counsel In his remaining argument on appeal, defendant asserts his
counsel rendered ineffective assistance by failing to place into
evidence (1) Defendant's Exhibit D-8, a photograph purportedly
reflecting the injuries to defendant's wrists inflicted by Cervini
and (2) Defendant's Exhibit E, the shirt defendant was wearing at
the time of the incident, allegedly stained with blood from his
injuries. Defendant suggests that these exhibits would have
bolstered the credibility of his testimony while discrediting the
State's witnesses.
To sustain a claim of ineffective assistance of counsel,
defendant must show both that his counsel's performance fell below
an objective standard of reasonableness and that this deficiency
had a probable impact on the outcome at trial. State v. Braswell,
312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). "[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." Id. We have examined the photographic exhibit in
question, which portrays two small marks or scratches on the
subject's right wrist and a single, smaller mark on the left wrist.
We find no reasonable probability that the admission of this image
to illustrate defendant's testimony would have affected the outcome
at trial. To the extent defendant faults his trial counsel for
failing to introduce the shirt into evidence, he has failed to
include this exhibit as part of the record on appeal. See N.C. R.App. P. 9(a) (2004). “Our review is limited to what is presented
in the record on appeal.” State v. Lyszaj, 314 N.C. 256, 260, 333
S.E.2d 288, 292 (1985). Accordingly, we find no merit to
defendant's ineffective assistance claims.
The record on appeal contains an additional assignment of
error not addressed by defendant in his brief to this Court.
Pursuant to N.C. R. App. P. 28(b)(6) (2004), we deem it abandoned.
No error.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***