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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. JAMES FRANKLIN WEST
Filed: 19 December 2006
1. Larceny_two charges_separate offenses
The trial court did not err by not dismissing or arresting judgment on one of two counts of
felonious larceny where defendant was convicted of larceny of a firearm with respect to a
shotgun stolen from a truck and the larceny of a separate vehicle in which he left the scene.
Although defendant contended that the two charges were part of the same transaction, there was
substantial evidence of two separate acts. The distinct nature of the items and the charges was
reenforced during the jury instructions.
2. Homicide_second-degree murder_manslaughter instruction refused
The trial judge did not err in a second degree murder prosecution in its refusal to instruct
on voluntary manslaughter where there was no evidence of either self-defense or heat of passion
following provocation. Defendant put on evidence of diminished capacity, but diminished
capacity short of insanity is not a defense to malice. Defendant did not raise at trial the question
of whether the refusal to instruct on manslaughter elevated the permissive inference arising from
use of a deadly weapon to an unconstitutional rebuttable presumption and the argument was not
considered on appeal.
3. Sentencing_calculation of prior record level_joined charges
Nothing in the Structured Sentencing Act specifically addresses the effect of joined
charges when calculating previous convictions to arrive at prior record levels, and the assessment
of a prior record level when sentencing defendant for second-degree murder by using convictions
for offenses which had been joind for trial with the murder charge would be unjust and in
contravention of the intent of the General Assembly, as well as the rule of lenity. The sentence
here was remanded.
Appeal by defendant from judgment entered 15 September 2005 by
Judge James F. Ammons in Cumberland County Superior Court. Heard
in the Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Richard J. Votta, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel Shatz, for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from a judgment entered upon his conviction
by a jury of second degree murder, two counts of felony larceny and
one count of breaking and entering an automobile. At trial, the
State put forth evidence to show that on 19 December 2003,
defendant was living with Brooks Bullard, his supervisor at work.
On the morning of 19 December 2003, Bullard went outside and found
his 1999 Pontiac automobile missing from his driveway. The screen
covering defendant's window was off and defendant was gone.
Bullard soon discovered that a shotgun he owned was missing from a
pick-up truck also parked in the driveway.
Sometime around 12:40 and 1:00 p.m. of the same day, Russ
Hammonds, the sole occupant of a Colonial Realty office building,
was shot and killed. While investigating, officers came across
defendant in his mother's house next door to the crime scene.
Officer Donald McLamb testified that defendant admitted entering
the office and shooting the victim. Defendant told police that he
stole the car and the shotgun from Bullard and drove to the
apartment complex across the street from his mother's house. He
hid in the woods surrounding the apartment complex until morning.
Before his mother left for work, defendant walked to her house and
spoke with her. After she left, defendant brought the shotgun
inside and hid it under the couch. Defendant later walked to the
building next door, entered without knocking and shot the victim.
Following the shooting, defendant returned to his mother's home and
watched television. Defendant told the officers that he did not
know the victim or why he had shot him. Defendant's motion to dismiss the charges at the close of the
State's evidence was denied. Defendant then offered evidence
tending to show that while growing up, defendant struggled in
school, was exposed to alcohol, drugs and pornography at an early
age and was verbally and physically abused by his parents as well
as others. Dr. Claudia Coleman, a psychologist, testified that
defendant suffered from mild depression, functioned at a low
intelligence level and evinced behavior indicative of borderline
personality disorder. Dr. Coleman opined that, as a result of
defendant's conditions, stressful situations were likely to break
him down cognitively. Defendant's renewed motion to dismiss at the
close of all the evidence was also denied.
 Defendant contends the trial court erred in failing to
dismiss or arrest judgment in one of the two counts of felony
larceny. We disagree.
When a defendant moves for dismissal, 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. If so, the motion to dismiss is properly denied.
State v. Bellamy, 172 N.C. App. 649, 656, 617 S.E.2d 81, 87 (2005)
(quoting State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649,
651-52 (1982)). Substantial evidence is relevant evidences that
a reasonable mind might accept as adequate to support a
conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655,663 (1995). In ruling on a motion to dismiss, the court must view
the evidence in a light most favorable to the State. State v.
Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The test
for sufficiency of the evidence is the same whether the evidence is
direct or circumstantial or both. State v. Fritsch, 351 N.C. 373,
379, 526 S.E.2d 451, 455 (2000) (citations omitted).
In the present case, defendant was convicted of larceny of a
firearm with respect to the shotgun stolen from Bullard's
employer's truck, pursuant to N.C.G.S. § 14-72(b)(4), as well as
larceny of Bullard's Pontiac automobile, pursuant to N.C.G.S. § 14-
72(a). Defendant argues that the two felony larceny charges were
all part of the same transaction and therefore constituted a single
offense. 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, 401, 344 S.E.2d 344, 347 (1986). When a firearm is
stolen, a defendant may not be charged with both felonious larceny
of a firearm and felonious larceny of property including that same
firearm. State v. Adams, 331 N.C. 317, 333, 416 S.E.2d 380, 389
This case, however, involved the application of two distinct
statutory provisions with each larceny charge predicated on
separate and unrelated property. See State v. Barton, 335 N.C.
741, 746, 441 S.E.2d 306, 309 (1994) (finding two separate takings
where a wallet and automobile were stolen, forming the basis for a
robbery charge, and a firearm was later taken after it wasdiscovered in the automobile, forming the basis for a larceny
charge). At trial, the State put forth substantial evidence
showing two separate acts of larceny. First, defendant entered a
truck used by Bullard and owned by defendant's employer and stole
Bullard's shotgun that was locked behind the truck's seats.
Defendant stole the shotgun to use as an outlet for his anger when
he shot and killed a stranger. After stealing the shotgun,
defendant then entered and stole the Pontiac automobile. Defendant
left the scene using the automobile and traveled to his mother's
The distinct nature of the items and their respective charges
were reenforced to the jury by the trial judge during jury
instructions. As to the first count of felonious larceny, the
trial judge's instructions referenced only the firearm. For the
second count of felonious larceny, the trial judge explicitly
indicated this count was in regard to the 1999 Pontiac Grand
Prix. Further, the different purpose for which the shotgun and
automobile were used suggests that each taking was motivated by a
unique criminal impulse or intent and constitutes multiple takings.
State v. Weaver, 104 N.C. 758, 760, 10 S.E. 486, 487 (1889)
(indicating that [w]hen several articles are taken at one time,
and the transaction is set in motion by a single impulse, and
operated upon by a single unintermittent force, it forms a
continuous act, and hence must be treated as one larceny[.])
This case can be distinguished from State v. Marr, 342 N.C.
607, 467 S.E.2d 236 (1996), relied upon by defendant, where chargesfor individual items stolen in a single criminal incident were
overturned. In Marr, there was evidence that two buildings were
entered, tools and other items were stolen from both buildings and
two vehicles were taken. Id. at 610, 467 S.E.2d at 237. Each item
was taken with the single objective of stealing the victim's tools
for defendant's use and for resale. Id. The perpetrators in Marr
did not have the unique criminal impulse or intent motivating
multiple takings as suggested by the current case's evidence.
The State has presented substantial evidence of two separate
takings to support two felony larceny convictions. Accordingly,
defendant's motion to dismiss was properly denied and both charges
of felonious larceny were properly submitted to the jury.
 Defendant next argues that the trial court erred in its
refusal to instruct the jury on voluntary manslaughter. A
defendant is entitled to have a lesser included offense submitted
to the jury only when there is evidence to support that lesser
included offense. State v. Smith, 351 N.C. 251, 267, 524 S.E.2d
28, 40 (2000). If the State presents sufficient evidence to fully
satisfy its burden of proving each element of the greater offense
and there is no evidence to negate those elements other than
defendant's denial that he committed the offense, defendant is not
entitled to an instruction on the lesser offense. Id. at 267-68,
524 S.E.2d at 40.
The elements of second degree murder are that defendant
unlawfully kill another person with malice and that the killingoccur without premeditation and deliberation. State v. Norris, 303
N.C. 526, 529, 279 S.E.2d 570, 572 (1981). Voluntary manslaughter
is an intentional killing without malice committed either in the
heat of passion or through imperfect self-defense resulting in
excessive force. State v. Lyons, 340 N.C. 646, 663, 459 S.E.2d
770, 779 (1995). The malice at issue, on the facts of this case,
is the condition of mind which prompts a person to take the life
of another intentionally without just cause, excuse, or
justification. State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d
532, 536 (1982). Using this definition, malice may be inferred
from the intentional infliction of a fatal wound using a deadly
weapon. State v. Holder, 331 N.C. 462, 487-88, 418 S.E.2d 197, 211
In this case, there was no evidence of either self-defense or
heat of passion following provocation. At trial, defendant put on
evidence of his diminished capacity. Diminished capacity that does
not amount to legal insanity is not, however, a defense to the
element of malice. State v. Page, 346 N.C. 689, 698, 488 S.E.2d
225, 231 (1997). The State presented evidence sufficient to
satisfy its burden of proving each element of second degree murder,
and there was no evidence presented to negate any of those
Defendant argues that because the malice in this case is based
on a permissive inference arising out of the intentional use of a
deadly weapon, the jury should have the option of rejecting the
inference in favor of voluntary manslaughter. Defendant contendsthat the trial court elevated the permissive inference of malice to
a rebuttable presumption of malice in failing to instruct on
voluntary manslaughter. Rebuttable presumptions shift the burden
of proof to the defendant and are in violation of the Due Process
Clause of the Fourteenth Amendment. Francis v. Franklin, 471 U.S.
307, 326, 85 L. Ed. 2d 344, 361 (1985). Defendant did not raise
this constitutional issue before the trial court and, as a result,
we will not consider it here. See State v. Hunter, 305 N.C. 106,
111-12, 286 S.E.2d 535, 539 (1982).
 Defendant assigned error to the trial court's computation
of his prior record level under North Carolina's Structured
Sentencing Act (Sentencing Act) in sentencing him for second
degree murder. See
N.C. Gen Stat. §§ 15A-1340.10 et seq
The trial court counted prior record points for offenses which had
been joined for trial with the murder charge. Defendant argues
that to do so was a violation of the Sentencing Act and a violation
of defendant's constitutional rights.
The State does not contest
this assignment of error.
N.C.G.S. § 15A-1340.13(b) requires that the court determine a
defendant's prior record level pursuant to N.C.G.S. § 15A-1340.14
when sentencing for a felony conviction. The prior record level
of a felony offender is determined by calculating the sum of the
points assigned to each of the offender's prior convictions that
the court ... finds to have been proved in accordance with this
section. N.C. Gen. Stat. § 15A-1340.14(a). A person has a priorconviction when, on the date a criminal judgment is entered
person being sentenced has been previously convicted of a crime[.]
N.C. Gen. Stat. § 15A-1340.11(7) (emphasis added). As a criminal
sentencing statute, the Act must be strictly construed. State v.
, 142 N.C. App. 629, 632, 544 S.E.2d 253, 255 (2001).
The trial court sentenced defendant for his convictions of
larceny of a firearm, larceny of an automobile and breaking and
entering an automobile, before recessing for lunch. Upon
reconvening, the trial court assigned defendant two prior record
points for one of the Class H larcenies and proceeded to sentence
defendant for second degree murder as a Level II offender. Nothing
within the Sentencing Act specifically addresses the effect of
joined charges when calculating previous convictions to arrive at
prior record levels. We agree with defendant that the assessment
of a defendant's prior record level using joined convictions would
be unjust and in contravention of the intent of the General
Assembly. See State v. Jones
, 353 N.C. 159, 170, 538 S.E.2d 917,
926 (indicating that [w]hen interpreting statutes, this Court
presumes that the legislature did not intend an unjust result).
Further, the 'rule of lenity' forbids a court to interpret
a statute so as to increase the penalty that it places on an
individual when the Legislature has not clearly stated such an
intention. State v. Boykin
, 78 N.C. App. 572, 577, 337 S.E.2d
678, 681 (1985); see also State v. Hanton
, 175 N.C. App. 250, 259,
623 S.E.2d 600, 606 (2006) (applying the rule of lenity to astatutory ambiguity concerning prior record points for out-of-state
We remand this case to the trial court for an entry of
judgment on the second degree murder conviction which accurately
reflects defendant's prior record level.
No error in the trial; remanded for resentencing.
Judges TYSON and CALABRIA concur.
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