Appeal by defendant from a judgment dated 27 July 2005 by
Judge Albert Diaz in Gaston County Superior Court. Heard in the
Court of Appeals 30 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
John W. Congleton, for the State.
Mary Exum Schaefer for defendant-appellant.
BRYANT, Judge.
Robert Lawrence Gilbert (defendant) appeals a judgment dated
27 July 2005, and entered consistent with a jury verdict on several
charges and defendant's subsequent guilty plea to the remaining
charges. For the reasons below we hold defendant received a trial
free of error, but vacate his conviction for felonious possession
of stolen goods and remand for resentencing.
Facts and Procedural History
In November and December of 2004, the Gaston County grand jury
indicted defendant on charges of felonious breaking and entering,
felonious larceny, felonious possession of stolen goods, larceny of
a motor vehicle, driving while license revoked, driving whileimpaired, transporting an open container of alcoholic beverage
after drinking, exceeding a safe speed, and driving left of center.
The grand jury also charged defendant with two counts of having
attained the status of an habitual felon.
At trial, the State introduced evidence tending to show the
following: Officer Joshua Self testified that he was working at an
off-duty security job at a shopping center on 21 August 2004. He
was in uniform and was driving a marked patrol car at the time. At
approximately 9:50 p.m., Officer Self heard an alarm call
dispatched for a nearby business. Because he was within sight of
the building, he decided to assist patrol and check out the
building.
Upon his arrival, Officer Self observed that a side door had
been broken out. He saw movement inside the building and aimed his
spotlight into its doorway. Officer Self saw a person whom he
identified as defendant standing in the doorway, and defendant
stepped through the broken door and began walking toward Officer
Self. After handcuffing defendant and placing him in the patrol
car's backseat, Officer Self noticed defendant was sweating.
Officer Self saw a Skilsaw outside of the building's doorway, and
he saw some hand trucks which had been used to move a poker machine
to a location right by the doorway.
The business's office manager, Carletta McIntosh, testified
the Skilsaw was normally kept approximately thirty feet from the
front door and the poker machine was approximately fifty feet from
the front door. She stated that the Skilsaw's value was about $800to $900 and that the poker machine's value was $2,000. Ms.
McIntosh further testified that the business was not open for
business at 9:50 p.m. on 21 August 2004 and that defendant did not
have permission to break or enter the building at that time.
At the close of the State's evidence, defendant made a motion
to dismiss the charges due to insufficient evidence. The trial
court denied the motion, and defendant declined to present any
evidence. After receiving the trial court's instructions as to the
charges of felonious breaking or entering, felonious larceny, and
felonious possession of stolen goods, the jury found defendant
guilty of the three charges.
Out of the jury's presence, defendant entered an
Alford plea
pursuant to a plea arrangement to the charges of larceny of a motor
vehicle, driving while license revoked, transporting an open
container of alcoholic beverage after drinking, and driving while
impaired. Defendant also admitted to one count of habitual felon
status. The State dismissed the charges of exceeding a safe speed
and driving left of center, along with the remaining habitual felon
indictment. In accordance with the plea arrangement, the trial
court consolidated all of the substantive offenses into one
judgment and sentenced defendant as an habitual felon to a term of
135 to 171 months imprisonment. From the trial court's judgment,
defendant appeals.
_________________________
I
Defendant first contends the trial court erred by denying hismotion to dismiss the charge of felonious breaking or entering. He
argues the evidence was insufficient to show an intent to commit a
felony inside the building. Defendant's argument is not
persuasive.
When ruling on a defendant's motion to dismiss, the trial
court must consider the evidence in the light most favorable to the
State; the State is entitled to every reasonable inference which
can be drawn from the evidence presented, and all contradictions
and discrepancies are resolved in the State's favor.
State v.
Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989)
. “'If
there is substantial evidence -- whether direct, circumstantial, or
both -- to support a finding that the offense charged has been
committed and that defendant committed it, a case for the jury is
made and nonsuit should be denied.'”
Id. (quoting
State v.
McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975)).
“The
essential elements of felonious breaking or entering are
(1) the
breaking or entering (2) of any building (3) with the intent to
commit any felony or larceny therein.”
State v. Mitchell, 109 N.C.
App. 222, 224, 426 S.E.2d 443, 444 (1993) (citation omitted).
Defendant only challenges the sufficiency of the evidence as to the
element of intent to commit any felony or larceny.
“An intent to commit larceny at the time of the breaking or
entering may be inferred from the defendant's conduct and other
circumstances shown by the evidence.”
State v. Thomas, 153 N.C.
App. 326, 334, 570 S.E.2d 142, 147 (citation omitted),
appeal
dismissed and disc. review denied, 356 N.C. 624, 575 S.E.2d 759(2002). When viewed in the light most favorable to the State, the
evidence tended to show defendant was discovered inside a closed
business without permission. The glass in a side door was broken
out, and two items of merchandise with a combined value of at least
$2800 had been moved a total of eighty feet from their normal
locations in the business. One item was outside of the building,
and the other item was next to the door. After handcuffing
defendant and placing him in the patrol car, Officer Self observed
defendant was sweating. This evidence was sufficient to permit the
jury to infer that defendant did break and enter the building with
the intent to commit larceny. The trial court properly denied
defendant's motion and submitted the charge of felonious breaking
or entering to the jury. This assignment of error is overruled.
II
In his second argument, defendant contends the trial court
erred by denying his motion to dismiss the charge of felonious
larceny. He argues the evidence was insufficient to show a
“complete severance of the object from the owner's possession, to
such an extent that the defendant has absolute possession of it.”
State v. Carswell, 36 N.C. App. 377, 379, 243 S.E.2d 911, 913,
reversed, 296 N.C. 101, 249 S.E.2d 427 (1978). His argument is
without merit.
Pursuant to N.C. Gen. Stat. § 14-72 (2005), larceny requires
proof beyond a reasonable doubt that a 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 hisproperty permanently.”
State v. Perry, 305 N.C. 225, 233, 287
S.E.2d 810, 815 (1982) (citations omitted). The required element
of taking and carrying away or asportation
does not require removal
of the property from the owner's premises.
While there must be a taking and carrying away
of the personal property of another to
complete the crime of larceny, it is not
necessary that the property be completely
removed from the premises of the owner. The
least removal of an article, from the actual
or constructive possession of the owner, so as
to be under the control of the felon, will be
a sufficient asportation.
State v. Walker, 6 N.C. App. 740, 743, 171 S.E.2d 91, 93 (1969)
(citation and internal quotations omitted). In
Carswell, our
Supreme Court held that picking an air conditioner up from its
stand and placing it on the floor was sufficient to put the object
briefly under the defendant's control and sever it from the owner's
possession.
Carswell, 296 N.C. at 104, 249 S.E.2d at 429. When
viewed in the light most favorable to the State, the evidence in
the instant case tended to show that one item had been moved thirty
feet and out of the building and that the other item had been moved
approximately fifty feet and was next to the door. This evidence
was sufficient for the trial court to submit the charge of
felonious larceny to the jury. This assignment of error is
overruled.
III
Although not raised by defendant, the judgment does contain an
error which must be addressed.
In entering judgment on both the
felonious larceny and possession of stolen goods convictions, whichwere based on the taking and possession of the same items, the
trial court violated the rule established in
State v. Perry that
while a defendant may be indicted and tried on charges of larceny
and possession of the same property, the defendant may be convicted
of only one of the offenses.
Perry, 305 N.C. at 236-37, 287 S.E.2d
at 817
. The judgment should therefore have been arrested as to the
felonious possession of stolen goods conviction.
State v. Owens,
160 N.C. App. 494, 499, 586 S.E.2d 519, 522-23 (2003). Because
consolidation of the convictions for judgment does not cure this
error, that portion of the judgment is vacated and remanded for
entry of judgment and sentencing on the remaining convictions.
State v. Barnett, 113 N.C. App. 69, 78, 437 S.E.2d 711, 717 (1993).
No error as to trial; vacated in part and remanded for
resentencing.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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