STATE OF NORTH CAROLINA
Wake County
v. 03CRS49691-49694
03CRS56350
DAVID LEE SMITH
Attorney General Roy Cooper, by Special Deputy Attorney
General E. Burke Haywood, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant.
LEVINSON, Judge.
Defendant (David Lee Smith) appeals from habitual felon
convictions and judgments on indictments for felonious larceny of
a utility trailer (03 CRS 49691); felonious larceny of a Ford F-250
pickup truck (03 CRS 49692); felonious larceny of a tractor (03 CRS
49693); and felonious breaking or entering and felonious larceny of
a lawn mower, chain saws and landscaping equipment (03 CRS 49694).
A jury found defendant guilty on all counts, and consecutive prison
sentences were imposed. The defendant argues the trial court erred
in entering judgment on duplicative counts of larceny when all
counts arose from a single act of taking. In addition, the
defendant argues that the trial court erred in failing to dismiss
all of the charges based on the State's failure to adducesufficient evidence of lack of consent to the breaking or entering
and to the larcenies. We remand for the reasons set forth below.
The evidence presented at trial tended to show the following:
Defendant was tried for events that took place late in the evening
of 28 May 2003. Sometime around midnight, Detective Kevin Herring
of the Apex Police Department was driving in his personal
automobile when he noticed a pickup truck with a Town of Apex seal
on the side. The pickup was pulling a utility trailer, which was
carrying a Kubota tractor. His suspicions aroused by the lack of
tail lights on the trailer, the presence of the town seal on the
truck, and the late hour, Detective Herring used his mobile phone
to contact the Apex police communicator, who confirmed the
trailer's tag was registered to the Town of Apex. Because
Detective Herring was driving his personal car, which lacked blue
lights and a siren, he could not signal the driver of the truck to
stop. He therefore followed the truck through Chatham County and
into Harnett County until he lost sight of the vehicle. Soon
thereafter, in the early morning hours, Apex police officers were
dispatched to the location where Detective Herring had last seen
the pick-up truck with the trailer. The officers located the
abandoned pick-up truck in a nearby mobile home park.
That same night Officer Don D. Day of the Apex Police
Department was patrolling an area that included the Apex Parks and
Recreation Department maintenance building at 2306 Laura Duncan
Road. He received an order to check the maintenance building for
a possible break-in. The town's public works director told theinvestigating officers that he knew of no work going on and that no
one was authorized to take a town vehicle outside the town limits.
Officer Day noted that the large double swinging triangular gates
securing the driveway into the park, which should have been
padlocked, were wide open. He then traveled some fifty yards down
the main driveway into the park and discovered that a second set of
large gates securing the maintenance and storage area, which also
should have been locked, were open. Finally, a third set of gates
set in the chain link fence securing the maintenance yard, which
also should have been locked, were open. Officer Day described
this fence as ten to twelve feet high with barbed wire at the top.
Officer Day immediately reported the apparent break-in to his
supervisor, Sergeant Shawn Pearson, who notified Dennis Stanley,
the department maintenance supervisor and emergency contact person
for the facility. Stanley testified that when he arrived at the
maintenance facility, he disabled the main building's alarm system.
He immediately noticed that a Ford F-250 truck, a flatbed utility
trailer and an orange B-24 series Kubota tractor were missing. He
also noted a lawn mower and several smaller power landscaping tools
were missing, including four chainsaws, two leaf blowers, and a
weed eater.
Stanley described the maintenance yard's security system as a
high-tech system with a video camera inside the main shop building
and three video cameras surveying nearly the entire exterior area
of the maintenance yard, which included several aluminum storage
sheds. The cameras make a recording on a video cassette recorderattached to a video monitor with a fourteen-inch screen. He
further testified that at the end of his work shift that day he had
locked the door to the shop building, locked the gate to the chain
link fence, and locked the main gate to the maintenance yard. He
stated that the keys to the Ford truck were left inside the truck.
Testimony indicated that only the five employees of the
maintenance department had access to the trucks, but just two
employees, Corey Crabtree and Alex Roadletter, were assigned to use
the particular Ford F-250 truck that was stolen. Crabtree carried
in the truck a metal Altoid mint tin which was used to hold loose
change.
Having viewed the videotape made by the security cameras,
Stanley stated that he did not recognize the person on the
videotape as anyone he had worked with since he joined the
department in 1998. He also stated that the defendant had never
worked for the maintenance department. The videotape reportedly
showed a black male wearing work gloves loading equipment into the
truck. He drove the truck, which was towing the utility trailer
carrying the tractor, to the locked gate and stopped. The suspect
on the videotape got out of the truck and removed an article from
a tool box which he used to open the lock securing the gate.
Stanley identified the Ford pickup truck recovered by the
authorities as the truck that had been stolen. The videotape was
received into evidence and was viewed by the jury. Leyle Wilson, a field operations agent with the City County
Bureau of Investigation (C.C.B.I.), processed the stolen Ford truck
for evidence. She lifted two latent fingerprints from the Altoid
tin which Crabtree had described in his testimony.
Clara Irlend, a latent fingerprint examiner for the C.C.B.I.,
testified that she ran the prints collected from the Altoids tin
through the Bureau's Automated Fingerprint Identification System
(A.F.I.S.), leading her to some possible matches. After describing
the fingerprint identification process in detail, she gave her
opinion that the latent print was a near identical match to the
prints of a David Lee Smith whose prints had been obtained by her
department on 5 June 2003. A photograph of the David Lee Smith
whose prints were found in the A.F.I.S. database was received into
evidence. Defendant testified that he was fingerprinted on that
date pursuant to an arrest for resisting an officer and driving
with a revoked license, and that he had given fingerprints to the
C.C.B.I. on numerous occasions.
The defendant testified to a criminal history in which he had
pled guilty or had been convicted of crimes on seven separate
occasions. He denied knowing where the Apex parks and recreation
facility is located and denied that he was the person on the
videotape. He admitted that he had seen the trucks used by the
Apex parks department and that he believed they were all Fords;
stated that Crabtree looked familiar; and was noncommittal on the
question of whether he had seen the Altoid tin before (“I can't sayI have, can't say I haven't.”). He also testified to recent
arrests on unrelated charges.
Defendant brings forward several assignments of error. He
first contends that the trial court erred by failing to dismiss
three of the four larceny charges because the State offered no
evidence tending to establish that he stole the items on four
separate occasions. We agree.
It is well settled that “[a] single larceny offense is
committed when, as part of one continuous act or transaction, a
perpetrator steals several items at the same time and place.”
State v. Adams, 331 N.C. 317, 333, 416 S.E.2d 380, 389 (1992)
(quoting State v. Froneberger, 81 N.C. App. 398, 401, 344 S.E.2d
344, 347 (1986)). We have referred to this rule as the “single
taking rule.” State v. Rawlins, ___ N.C. App. ___, ___, 601 S.E.2d
267, 272 (2004).
Our courts have applied the single taking rule in cases with
facts remarkably similar to those of the instant case. In
Froneberger, 81 N.C. App. 398, 344 S.E.2d 344, the defendant was
convicted on four counts of felonious larceny of several silver
pieces. The only evidence to support four separate larcenies was
the fact that the defendant pawned the silver on separate occasions
and had unlimited access to the home from which he stole the
silver. Id. at 401, 344 S.E.2d at 347. This Court concluded the
evidence was insufficient to support four separate convictions for
larceny. Id. at 401-02, 344 S.E.2d at 346-47. It was equally
possible that the defendant had taken all of the silver at onetime, rather than four separate times. Id. at 402, 344 S.E.2d at
347. We held “[a] single larceny offense is committed when, as
part of one continuous act or transaction, a perpetrator steals
several items at the same time and place.” Id. at 401, 344 S.E.2d
at 347.
In State v. Marr, 342 N.C. 607, 467 S.E.2d 236 (1996), our
Supreme Court applied the single taking rule where defendant had
been convicted as an accessory before the fact of four separate
larcenies. Although there was evidence that two buildings had been
entered and two vehicles taken, the taking of the vehicles and the
various items from the buildings was all part of the same
transaction. Id. at 613, 467 S.E.2d at 239.
In State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003),
we applied the single taking rule where defendant broke into an
equipment lot and stole two circular saws, a reciprocating saw, a
volt meter, and several drill bits from three different trucks.
Id. at 91, 577 S.E.2d at 704. The defendant was convicted on two
counts of larceny. Although the defendant could not have
physically taken all of the tools in a single trip, the vans were
parked inside the same locked fence in close proximity and the
larcenies occurred within the same general time period. Id. at 96,
577 S.E.2d at 707. Consequently, this Court held the larcenies
were part of a single continuous transaction, necessitating that
one of the convictions be vacated. Id.
Similarly, in the instant case, the evidence showed a single
transaction occurred. The surveillance video showed an individualloading the pickup truck with the lawn tools, attaching the utility
trailer to the truck, and driving the truck out of the facility.
All of the evidence indicated that this occurred on the evening of
28 May 2003, in one single continuous act.
We conclude that the evidence does not support more than one
larceny conviction. We therefore remand with instructions for the
Superior Court to arrest judgment on three of the four larceny
convictions, and at the same time to enter new judgment(s) and
sentence(s) for one felonious breaking or entering and one
felonious larceny.
We next turn to defendant's argument that the trial court
erred when it failed to dismiss the breaking and entering charge,
as well as all of the larceny charges, because there was
insufficient evidence of lack of consent for each charge. We
disagree.
In reviewing a claim of insufficiency of the evidence, this
Court must determine whether, after viewing the evidence in the
light most favorable to the State, any rational trier of fact could
have found the essential elements of the charged crime beyond
reasonable doubt. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d
649, 652-53 (1982). The State is entitled to all reasonable
inferences which may be drawn from the evidence. State v. Davis,
130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “The test for
sufficiency of the evidence is the same regardless of whether the
evidence is circumstantial or direct.” State v. Holmes, 142 N.C.
App. 614, 617, 544 S.E.2d 18, 20 (2001). To support a conviction for felonious breaking or entering
under N.C.G.S. § 14-54(a) (2003), “there must exist substantial
evidence of each of the following: (1) the breaking or entering,
(2) of any building, (3) with the intent to commit any felony or
larceny therein.” State v. Walton, 90 N.C. App. 532, 533, 369
S.E.2d 101, 103 (1988).
Although the State did not offer direct testimony that the
defendant lacked consent to break or enter the locked Apex Parks
and Recreation Department maintenance facility, the circumstantial
evidence is overwhelming. The evidence tended to show the
defendant was inside a locked facility in the middle of the night.
The main building had an alarm system. The entire compound was
surveyed by four video cameras and surrounded by a ten to twelve
foot high fence topped with barbed wire. The presence of the
security system and fence give rise to an inference that the
general public was not permitted entry. The defendant was not
there during normal working hours, nor was he an employee of the
Apex Parks and Recreation Department. The defendant loaded various
items which did not belong to him into a pickup truck which,
likewise, did not belong to him. The State offered evidence that
only Corey Crabtree, Alex Roadletter and their three co-workers at
the maintenance yard were authorized to use the truck. Using a tow
strap, the defendant pulled a tractor out of a storage bay then
mounted it onto a utility trailer, damaging the trailer's tail
lights. He then hitched the trailer to the pickup truck. He drove
the truck to the locked gate and stopped. The defendant got out ofthe truck and removed an article from a tool box which he used to
open the lock securing the gate. No work was authorized that night
and no one was permitted to take the truck outside the town limits.
The fact that he wore gloves suggests that the defendant wanted to
avoid leaving fingerprints. Moreover, the defendant's own
testimony is entirely inconsistent with any inference that he acted
with consent. Specifically, he denied knowing where the Apex parks
and recreation facility is located, denied that he was the person
on the videotape, and denied that had ever been in possession of
the stolen vehicles and items.
Viewing the evidence in its totality and in the light most
favorable to the State, there is substantial evidence that the
defendant lacked consent to break or enter the maintenance
facility. This assignment of error is overruled.
Lack of consent is clearly an essential element of larceny.
“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). The same evidence that supports a finding
that defendant lacked consent to break or enter the facility also
supports a finding that he took the vehicles and various items from
the maintenance facility without consent. This assignment of error
is overruled.
We have considered defendant's remaining arguments and
conclude they are without merit.
Reversed in part and Remanded.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
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