State v Swanson, (04-1350) 11/15/2005

On writ of certiorari defendant appeals from judgments dated 18 November 1992 (See footnote 1) by Judge James D. Llewellyn in Craven County Superior Court. Heard in the Court of Appeals 15 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Kevin Anderson, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Benjamin Dowling-Sendor, for the defendant.

    BRYANT, Judge.

    Lonny Joe Swanson (defendant) appeals from judgments signed 18 November 1992 consistent with guilty verdicts of first-degree burglary and two counts of felonious larceny.
    Defendant and his fiancée lived in a trailer on Joseph Shelton's property. Occasionally, Shelton paid defendant for performing repairs on his house. On the night of 16 April 1992,after Shelton had paid defendant for work done that day, and while Shelton and his wife slept, defendant entered their home without permission. While inside, defendant took several sets of keys and two handbags containing Mrs. Shelton's personal items.
    After taking the items, defendant left the Shelton's home and returned to his trailer. While there, he woke up his fiancée and told her Shelton had given defendant permission to use Shelton's truck. Defendant and his fiancée took the truck and drove toward New Bern. While en route, defendant fell asleep at the wheel and wrecked the truck.
    On 10 August 1992, defendant was indicted in Craven County for: first-degree burglary; felonious larceny of two handbags and three sets of keys; felonious larceny of a truck; felonious possession of stolen goods; and felonious possession of a truck. The trial court dismissed the two counts of felonious possession at the close of all the evidence. The jury found defendant guilty of first-degree burglary and the two remaining counts of felonious larceny. The trial court sentenced defendant to twenty years imprisonment for first-degree burglary and consolidated the two counts of felonious larceny and sentenced defendant to six years to run consecutively.
    Defendant appeals.

    Defendant argues the trial court erred in denying defendant's motion to dismiss the two counts of felonious larceny.
    Preliminarily, in response to a procedural issue raised in the State's brief, we note defendant has properly preserved this issue for our review. N.C. R. App. P. 10(b)(3). Review of the transcript indicates defense counsel, at the close of the State's evidence, argued a motion to dismiss the first-degree burglary charge; at the same time counsel also argued dismissal of the two separate larceny charges based on insufficiency of the evidence. The trial court denied defendant's motions as to “all charges” against defendant. Defendant presented no evidence, and, at the close of all the evidence, defense counsel renewed his motions to dismiss. The trial court stated “[t]hose motions are once again denied.” Therefore, based on defense counsel's motions argued at the close of all the evidence, this issue has been properly preserved. See State v. Chavis, 134 N.C. App. 546, 556, 518 S.E.2d241, 248 (1999), disc. rev. denied, 351 N.C. 362, 542 S.E.2d 220 (2000) (“After the defendant announced he would not present any evidence, he renewed his prior motion to dismiss based on the insufficiency of the evidence [and this Court concluded] the defendant has properly preserved this argument for appeal.”).
    In ruling on a motion to dismiss, the trial court must consider all of the evidence, whether direct or circumstantial, “in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.” State v. Davis, 130 N.C. App. 675, 678-79, 505 S.E.2d 138, 141 (1998). 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. Froneberger, 81 N.C. App. 398, 344 S.E.2d 344 (1986). Multiple takings occur where a lapse in time exists between the takings. State v. Jordan, 128 N.C. App. 469, 474, 495 S.E.2d 732, 736 (trial court did not err in sentencing two separate takings where defendant, intending to steal the victim's car, stole items from the victim's house, left her house, and stole her car where there was a lapse of time between the two takings), disc. rev. denied, 348 N.C. 287, 501 S.E.2d 914 (1998).
    In the case sub judice, a temporal break occurred between defendant's taking of the handbags and keys and the taking ofShelton's truck. Defendant took the personal items from inside the Shelton's home. Defendant then left, went to his trailer, and spoke with his fiancée. Defendant thereafter, with his fiancée returned to the Shelton's home and took the truck. These events involved two separate and distinct takings. See State v. Spruill, 89 N.C. App. 580, 366 S.E.2d 547 (the defendant broke into car dealer's building and took a number of car keys, property of value, and then selected a car to drive away from lot; this showed two separate acts of larceny, separated in time and space, involving separate property), cert. denied, 323 N.C. 368, 373 S.E.2d 554 (1988). This evidence is sufficient to support two separate counts of larceny and the trial court did not err in denying defendant's motion to dismiss. See e.g., State v. Barton, 335 N.C. 741, 746, 441 S.E.2d 306, 309 (1994); Froneberger, 81 N.C. App. 398, 344 S.E.2d 344; and Spruill, 89 N.C. App. 580, 366 S.E.2d 547. This assignment of error is overruled.

    Defendant argues the trial court erred in denying his motion to dismiss the felonious larceny charge based on insufficiency of the evidence as to the value of Shelton's truck. We disagree.
    A motion to dismiss is properly denied if “there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). In ruling on a motion to dismiss, the trial court must consider all of the evidence “in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.” Davis, 130 N.C. App. at 678-79, 505 S.E.2d at 141. To convict a defendant of felonious larceny, the State must show that the defendant: (1) took the property of another; (2) with a value of more than $1,000.00; (3) carried it away; (4) without the owner's consent; and (5) with the intent to deprive the owner of the property permanently. State v. Reeves, 62 N.C. App. 219, 223, 302 S.E.2d 658, 660 (1983); N.C. Gen. Stat. § 14-72(a) (2003).
    The State's evidence showed defendant entered the Shelton residence, stole keys for the truck, then drove it to New Bern and wrecked it. Then Shelton testified the truck “should be” valued at more than $5,000.00 before the wreck. Defendant however, argues this is not sufficient evidence of value, and cites State v. Rick, 54 N.C. App. 104, 106, 282 S.E.2d 497, 499 (1981) and State v. Holland, 318 N.C. 602, 611, 350 S.E.2d 56, 61 (1986), overruled on other grounds by State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987) in support of his argument.    The instant case is distinguishable from the cases cited by defendant. In State v. Rick, the victim's testimony consisting merely of what price she would have accepted for the car, was not sufficient to provide an estimate as to its fair market value. Rick, 54 N.C. App. at 106, 282 S.E.2d at 499. In State v. Holland the State offered no direct evidence of the car's value, only the testimony of the victim that of the two cars he owned, the stolen car was his favorite of which he took especially good care and always parked under a shed. Holland, 318 N.C. at 611, 350 S.E.2d at 61.
    The instant case is analogous to State v. Cotten, wherein the victim testified as to the value of his stolen vehicle and stated: “I think on a trade-in I could get a thousand dollars for it . . . .” State v. Cotten, 2 N.C. App. 305, 311, 163 S.E.2d 100, 104 (1968) (holding that the victim's estimate of the value of his vehicle was competent evidence to be submitted to the jury because a witness who has knowledge of value gained from experience, information and observation may give an opinion of the value of specific personal property); see State v. Thompkins, 83 N.C. App. 42, 44, 348 S.E.2d 605, 606 (1986) (victim testified to the worth of the items).
    Viewing the evidence in the light most favorable to the State, the trial court properly denied defendant's motion to dismiss asShelton's first-hand knowledge was sufficient evidence that the value of the truck was more than $1,000.00. This assignment of error is overruled.
    No error.
    Judges MCCULLOUGH and TYSON concur.
    Report per Rule 30(e).

Footnote: 1 By order of this Court on 26 March 1997 and 9 January 2004, defendant's petitions for writ of certiorari were granted.

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