An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 October 2006
STATE OF NORTH CAROLINA
v. Alamance County
No. 04 CRS 054963
SONIA PINNIX DUBOIS
Appeal by defendant from judgment entered 13 October 2005 by
Judge J.B. Allen, Jr., in Alamance County Superior Court. Heard in
the Court of Appeals 2 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher H. Wilson, for the State.
Michael J. Reece, for defendant-appellant.
Sonia Pinnix Dubois (defendant) appeals from judgment
entered after a jury found her to be guilty of non-felonious
larceny. We find no error.
A. State's Evidence
The State's evidence tended to show defendant and Thomas
Harris (Harris) dated for three to four years prior to moving in
together into a rented house on 1 March 2004. Harris was the
tenant on the lease and the name of defendant's daughter was listed
as the customer on the power utility account. Among other
household items, Harris owned and brought into the house a living
room suite, brass-colored wall hangings consisting of elephants,candle holders, and three ships. Defendant's and Harris's
relationship deteriorated and Harris moved out of the house on or
about 15 April 2004. Harris stayed with his mother until defendant
moved out of the house. During the time Harris was staying with
his mother, he returned to the house two or three times per week.
Harris returned every Tuesday to specifically pick up a check from
the mailbox. During one of his return trips to the house, Harris
discovered some of his personal property he had left in the house
was missing. Harris went to the Burlington Police Department on 27
May 2004 to report that various items of his personal property had
been stolen from his residence and named defendant as a suspect.
Harris called the Burlington Police again on 3 June 2004 and,
in response, Officer Robin Harlukowicz (Officer Harlukowicz)
responded to the house. Harris informed Officer Harlukowicz that
he noticed additional personal property belonging to him was
missing from the house. Officer Harlukowicz found no evidence of
Harris stated he had learned from a neighbor that some of his
personal property was located at the house of a neighbor, Mr. and
Mrs. Fuller. Officer Harlukowicz and Harris went into the Fuller
residence, where Harris's brass-colored elephants and candle
holders were found hanging on a wall. Mrs. Fuller testified that
she bought the brass-colored items from defendant at the end of May
or in early June. Harris testified that he never gave defendant
authority to sell any of his property.
After Officer Harlukowicz left the house, Harris waited forthe mailman to bring his check. While he waited, defendant and
three men approached the house, riding in a pick-up truck and
towing a trailer. Harris told them to leave and called Officer
Harlukowicz who returned to the house. Harris reported to Officer
Harlukowicz that he had determined that more items were missing
than originally reported.
The Burlington Police took defendant into custody and
questioned her at the police station on 4 June 2004. While in
custody, defendant admitted that she knew some of the items she had
taken from the house belonged to Harris and that she sold the
brass-colored elephant and candle holders to Mrs. Fuller.
Defendant also admitted giving the living room suite to her
daughter for payment of the outstanding power bill for the house.
Harris testified that he never gave defendant or her daughter
permission to sell or remove any of his household items.
B. Defendant's Evidence
Defendant testified that she and Harris moved in together in
March 2004 and she understood that Harris would add her name to the
lease. Defendant testified that she owned all personal property in
the house with the exception of the living room suite, Harris's
clothes, a refrigerator, and the brass-colored wall hangings.
Defendant admitted selling the brass-colored items to Mrs. Fuller
after Harris moved out. Defendant testified that she had passed by
the house in a truck only because she had caught a ride and was en
route to another destination.
Defendant's daughter testified that when her mother and Harrismoved in together, she agreed for the electrical power account to
be placed in her name, as long as Harris agreed to pay the bill.
When Harris became delinquent in paying the power bill, defendant's
daughter told Harris that she would take possession of his living
room suite to satisfy the bill. Defendant's daughter stated that
defendant neither objected nor consent to the agreement.
Defendant's daughter testified that defendant allowed her to take
possession of Harris's living room suite.
On 28 March 2005, defendant was indicted for felony larceny
and obtaining property by false pretenses. At trial, defendant
moved to dismiss the charges against her at the close of the
State's evidence. The trial court dismissed the charge of
obtaining property by false pretenses. Defendant renewed her
motion to dismiss the larceny charge at the close of all evidence.
The trial court denied the motion and instructed the jury on both
felonious and non-felonious larceny. A jury found defendant guilty
of non-felonious larceny. The trial court determined defendant was
a prior level III with six points and sentenced her to an active
term of 120 days. Defendant appeals.
Defendant argues the trial court erred in denying her motions
to dismiss the felony larceny charge.
III. Motion to Dismiss
To withstand a motion to dismiss, the State must present
substantial evidence of each essential element of the offense and
of the defendant's identity as the perpetrator. State v. Riddle,300 N.C. 744, 746, 268 S.E.2d 80, 81-82 (1980). Substantial
evidence is relevant evidence which a reasonable mind might accept
as adequate to support a conclusion. State v. Smith, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980). 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. State
v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). Any
contradictions or discrepancies arising from the evidence are
properly left for the jury to resolve and do not warrant
dismissal. State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237
Here, defendant was convicted of misdemeanor larceny. The
essential elements of larceny are: (1) the taking of the property
of another; (2) carrying it away; (3) without the owner's consent;
and (4) with the intent to permanently deprive the owner of the
property. State v. Barbour, 153 N.C. App. 500, 502, 570 S.E.2d
126, 127 (2002). If the property has a value of not more than
$1,000.00, the offense is a Class 1 misdemeanor. N.C. Gen. Stat.
§ 14-72(a) (2005).
Defendant argues that the State failed to offer any evidence
that a taking of Harris's property occurred. Defendant asserts
that she was in lawful possession of Harris's property because
Harris failed to take his property with him when he moved out of
their shared residence. We disagree.
Here, the uncontroverted evidence showed: (1) Harris broughtthe brass-colored wall hangings into the rented house; (2) Harris
owned the brass-colored wall hangings; and (3) defendant sold the
brass-colored wall hangings to Mrs. Fuller without Harris's
permission. The State's evidence also tended to show that
defendant's daughter took Harris's living room suite and that
Harris did not give her permission to do so. We hold based upon
this evidence, considered in the light most favorable to the State,
a jury could reasonably infer defendant committed non-felonious
larceny. This assignment of error is overruled.
The trial court properly denied defendant's motions to
dismiss. Defendant received a fair trial free from prejudicial
errors she preserved, assigned, and argued.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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