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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. CLYDE EDWARD SPENCER
Filed: 18 December 2007
1. Larceny--sufficiency of evidence--testimony of coconspirators
The trial court did not err in a prosecution for breaking and entering, larceny, and other
charges by denying defendant's motions to dismiss for insufficient evidence. The testimony of
two indicted co-conspirators was sufficient to support defendant's convictions.
2. Larceny--county in which crime occurred--a matter of venue
The trial court did not err by denying defendant's motion to set aside a larceny conviction
where the indictment alleged that the crime occurred in Cleveland County while the proof
indicated that the crime occurred in Gaston County. The place for returning an indictment is a
matter of venue, and the variance between the indictment and the proof is not material.
3. Appeal and Error--Rule 2--manifest injustice
Appellate Rule 2 was invoked to prevent manifest injustice and consider whether
defendant could be convicted of both larceny and possession of the same stolen property.
4. Larceny--possession of stolen property and larceny--judgment arrested
Judgment was arrested on convictions for felonious possession of stolen property where
defendant was also convicted of larceny of the same property.
5. Sentencing--prior record level--stipulation
Sufficient evidence existed to show that defendant stipulated to his prior record level
pursuant to N.C.G.S. § 15A-1340.14(f)(1), and the trial court did not err by determining
defendant to be a prior record level IV offender.
6. Sentencing--habitual felon--clerical error
While there was a clerical error in finding defendant to be a violent habitual felon, he was
properly sentenced in the presumptive range and the error was not prejudicial.
7. Appeal and Error_preservation of issues--assignment of error abandoned--lack of
An argument that defense counsel was ineffective because he failed to inform defendant
about the possible maximum sentence was deemed abandoned where defendant did not present
evidence tending to show that he was not fully informed.
Judge JACKSON concurs.
Appeal by defendant from judgments entered 16 November 2006 by
Judge Karl Adkins in Cleveland County Superior Court. Heard in the
Court of Appeals 15 November 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General E. Burke Haywood, for the State.
Richard E. Jester, for defendant-appellant
Clyde Spencer (defendant) appeals from judgments entered
after a jury found him to be guilty of breaking and entering,
larceny after breaking and entering, and felonious possession of
stolen property in file 06-CRS-053923 and felony larceny and
felonious possession of stolen property in file 06-CRS-053924.
Defendant pled guilty to attaining habitual felon status in file
06-CRS-4758. We find no error in part, arrest judgment and vacate
in part, and remand for resentencing and correction of clerical
On 23 June 2006, Sidney Gary's (Gary) and Lynn and Melanie
Hayes' (the Hayes) homes were broken into and several items were
stolen. Eric Barnes (Barnes), a next door neighbor, notified
Kings Mountain police officers after he had encountered a
suspicious male asking to borrow his gas can. Barnes observed a
different male walking in the rain, coming from the direction of
the Hayes' home, wearing khaki shorts and no shirt. Shortly
thereafter, the male who [was] supposedly out of gas, crank[ed]
his truck up. Barnes called the police and reported that there
was a suspicious green Chevrolet truck in the area. At
approximately 8:30 p.m., Officer Taylor Myers (Officer Myers)
responded to the call. As Officer Myers proceeded to Crescent Hill
Road, Officer Scott Bailey (Officer Bailey) notified her that he
had stopped the suspicious vehicle. Subsequently, Officers Myers and Bailey received a second call
stating an unknown subject, who was wearing khaki shorts and no
shirt, was running through the yards of homes on Crescent Lane
towards South Cansler Street. This area is less than a half of a
mile from where Officer Bailey had stopped the suspicious vehicle.
As Officer Myers proceeded toward that area, she saw Donald Bell
(Bell) standing outside in his yard. Bell advised Officer Myers
a light in the Hayes' home was on, although the family was out of
town. Bell also stated he had observed three suspicious subjects
sitting in a green Chevrolet truck, stopped directly in front of
the Hayes' home. Officer Myers and Bell went next door to
investigate and discovered a broken window and a brick lying on the
den floor. Officer Myers entered the Hayes' home and photographed
Officer Bailey stopped the suspicious vehicle within a half
block of the Hayes' home. Todd Bryan (Bryan) and Judy Shinn
(Shinn) were the truck's only occupants. Bryan and Shinn both
appeared to be under the influence of crack cocaine. After
conducting a search of the vehicle, Officer Bailey recovered DVDs,
CDs, a PlayStation, a jewelry box, a laptop computer, a green
duffle bag, and a gas can. Officer Bailey ordered the truck towed
to the police department where an inventory was taken of the
vehicle's contents. (T 86, 108) Gary and the Hayes identified
several items located in the truck as belonging to them.
Bryan and Shinn were arrested and taken into custody. At some
point during the evening, Shinn stated to a police officer that
they had left defendant behind at the scene. Bryan was charged
with and pled guilty to two counts of possession of stolenproperty. Shinn was charged with and pled guilty to one count of
possession of stolen property.
On 2 July 2006, Officer Kevin Putnam (Officer Putnam)
responded to a call regarding a break-in at the home of Amy Beam
(Beam) in Gastonia. Someone had broken the glass in her rear
door, entered Beam's home, and stole several items including a
purse, a checkbook, and her identification card. The vehicle
involved in the break-in was identified as an older model white
Chevrolet or GMC truck. On 5 July 2006, Officer Putnam spotted the
vehicle parked in a driveway. Defendant and another occupant were
inside the vehicle. Defendant was arrested and taken into custody.
Bryan testified for the State pursuant to his plea agreement.
Bryan stated he had met defendant in a drug rehabilitation program.
In the last week of May 2006, defendant asked Bryan to give him a
ride to his parent's home in Shelby. Bryan and defendant ended up
in Gastonia where they began a two-week drug binge. Bryan
testified that during this binge, he and defendant stole various
items and traded the property for drugs. Bryan and defendant met
Shinn at a drug house the day the crimes in question occurred.
On the evening of 23 June 2006, Bryan dropped defendant off in
a Kings Mountain neighborhood, parked his truck up the street, and
waited for defendant to return. Bryan testified it was understood
that he would drop [defendant] off, [defendant] would break into
a house, [Bryan] would come pick him up and [they] would get the
stuff, take it and sell it. While awaiting defendant's return,
Bryan's truck ran out of gas. After searching for gas for thirty
to forty-five minutes, Bryan saw defendant walking down the street
at the same time a police officer was patrolling the area. Bryanentered his vehicle and attempted to leave the scene, but Officer
Bailey initiated a stop. Bryan testified he did not see defendant
put property in his truck and did not know how the Hayes' property
ended up there. Bryan testified defendant was wearing khaki shorts
and no shirt during the night the crimes in question occurred.
Bryan also testified while he and defendant were in jail,
defendant asked if Bryan would take [the] charges for him.
Initially, Bryan agreed and wrote a statement confessing that he
had broken into Gary's and the Hayes' homes. Bryan later recanted
the earlier confession.
Shinn also testified for the State pursuant to her plea
agreement. Shinn stated she had met Bryan at a friend's home and
asked him to give her a ride in exchange for gas money. Bryan
and Shinn drove to a store to meet defendant. Defendant had
purchased a crack rock and split it three ways. Bryan, Shinn,
and defendant drove to a home on Ozark Avenue in Gaston County.
Shinn testified Bryan and defendant entered the home and emerged
with DVDs, a PlayStation, a camera and video games. Defendant
stated the items belonged to him, and he had to take them to Kings
The group then drove to Kings Mountain. Shinn testified Bryan
took defendant to a home where he knocked on the door for
approximately twenty minutes. Defendant walked around to the back
of the home and tripped a security alarm. Bryan attempted to leave
the area, but ran out of gas. Shinn testified she did not see
defendant put property in Bryan's truck while it was parked in the
Kings Mountain neighborhood. Gary testified that he discovered his home had been broken
into in the early morning hours of 23 June 2006. The perpetrators
of the crime had gained access to his home through the window in
his children's room. Gary also testified that he did not know
Bryan, Shinn, or defendant and he had not given anyone permission
to enter his home and remove his possessions.
Defendant entered a plea of not guilty to all charges. (T 4)
In file 06-CRS-53923, the jury found him to be guilty of: (1)
breaking and entering the Hayes' home; (2) larceny after breaking
and entering the Hayes' home; and (3) felony possession of stolen
property from the Hayes' home. In file 06-CRS-53924, the jury
found defendant to be guilty of: (1) felonious larceny from Gary's
home and (2) felonious possession of stolen property from Gary's
home. Defendant pled guilty to attaining habitual felon status.
The trial court consolidated all counts on the individual
indictments and entered one judgment on each indictment. In file
06-CRS-53923, defendant was sentenced to an active minimum term of
133 to a maximum of 169 months imprisonment. In file 06-CRS-53924,
defendant was sentenced to an active minimum term of 107 to a
maximum of 138 months imprisonment, to be served consecutively with
the sentence above. Defendant appeals.
Defendant argues the trial court erred by: (1) denying his
motions to dismiss; (2) incorrectly calculating his prior record
level; and (3) finding him to be a violent habitual felon.
Defendant also argues he received ineffective assistance of
Defendant argues the trial court erred by denying his motions
to dismiss at the close of the State's evidence and again at the
close of all the evidence. We disagree.
A. Standard of Review
This Court has stated:
The standard for ruling on a motion to dismiss
is whether there is substantial evidence (1)
of each essential element of the offense
charged and (2) that defendant is the
perpetrator of the offense. Substantial
evidence is relevant evidence which a
reasonable mind might accept as adequate to
support a conclusion. 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. Any contradictions or
discrepancies arising from the evidence are
properly left for the jury to resolve and do
not warrant dismissal.
State v. Wood
, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)
(internal citations and quotations omitted).
B. Sufficiency of the Evidence
 Defendant argues the trial court erred by denying his
motions to dismiss based on insufficiency of the evidence.
Defendant's only argument pertaining to this assignment of error is
[t]he State provided only the testimony of indicted co-
conspirators implicate [sic] [defendant] for the crimes in this
It is well settled in North Carolina that uncorroborated
accomplice testimony is sufficient to sustain a conviction. State
v. Wallace, 104 N.C. App. 498, 503, 410 S.E.2d 226, 229 (1991),
disc. rev. denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506
U.S. 915, 121 L. Ed. 2d 241 (1992). Bryan and Shinn testified
consistently regarding defendant's participation in the crimescommitted. This accomplice testimony is sufficient to support the
denial of defendant's motions to dismiss. The trial court did not
err by denying defendant's motions. Wood, 174 N.C. App. at 795,
622 S.E.2d at 123. This assignment of error is overruled.
 Defendant argues there was no proof that one of the
crimes occurred in Cleveland County. Defendant asserts his
conviction of larceny in file 06-CRS-053924, must fail because the
indictment alleged the crime occurred in Cleveland County, while
the proof at trial indicated the crime actually occurred in Gaston
County. We disagree.
N.C. Gen. Stat. § 15A-631 (2005) states, the place for
returning a presentment or indictment is a matter of venue and not
jurisdiction. This Court has held [q]uestions of venue . . . are
waived by the failure to make a pretrial motion, even if the
problem of venue arises from a variance between the indictment and
the proof at trial. State v. Brown, 85 N.C. App. 583, 587-88, 355
S.E.2d 225, 229 (citations omitted), disc. rev. denied, 320 N.C.
172, 358 S.E.2d 57 (1987). Here, defendant failed to make a
pretrial motion regarding venue. Defendant wavied any question of
Further, a variance between an indictment and the proof at
trial is not always fatal. State v. Furr, 292 N.C. 711, 721, 235
S.E.2d 193, 200 (citations omitted), cert. denied, 434 U.S. 924,
54 L. Ed. 2d 281 (1977). A variance regarding the place of the
crime is not material where it is not descriptive of the offense,
is not required to be proven as laid to show the court's
jurisdiction, and does not mislead the defendant or expose him todouble jeopardy. Brown, 85 N.C. App. at 588, 355 S.E.2d at 229
(citation omitted). Here, where defendant was charged with felony
larceny in Cleveland County, and the State's proof of the offense
tended to show it occurred in Gaston County, the variance is not
material. This assignment of error is overruled.
D. Convictions of Both Larceny and Possession of Stolen Property
 Defendant argues he cannot be convicted for both larceny
and possession of the same stolen property. We agree.
Defendant failed to set out an assignment of error in the
record on appeal pertaining to this argument. Defendant has raised
this issue on appeal for the first time in his brief. Rule 10(a)
of the North Carolina Rules of Appellate Procedure provides, in
relevant part, [e]xcept as otherwise provided herein, the scope of
review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal in accordance
with this Rule. . . . N.C.R. App. P. 10(a) (2008). Violation of
the Rules of Appellate Procedure will subject an appeal to
dismissal. Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d
298, 299 (1999).
In light of our Supreme Court's decision in State v. Hart, we
must determine whether to invoke and apply Appellate Rule 2 despite
defendant's appellate rules violation. 361 N.C. 309, 644 S.E.2d
201 (2007). The decision whether to invoke Appellate Rule 2 is
discretionary and is to be limited to rare cases in which a
fundamental purpose of the appellate rules is at stake. Id. at
315-16, 644 S.E.2d at 205. Appellate Rule 2 has most consistently
been invoked to prevent manifest injustice in criminal cases in
which substantial rights of a defendant are affected. Id. at 316,644 S.E.2d at 205. Under these facts, we find it appropriate to
invoke Appellate Rule 2 and review the merits of defendant's
 It is well established in North Carolina that though a
defendant may be indicted and tried on charges of larceny,
receiving, and possession of the same property, he may be convicted
of only one of those offenses. State v. Andrews, 306 N.C. 144,
148, 291 S.E.2d 581, 584 (citations and quotations omitted), cert.
denied, 459 U.S. 946, 74 L. Ed. 2d 205 (1982); see also State v.
Perry, 305 N.C. 225, 235, 287 S.E.2d 810, 816 (1982) (Our review
of the legislative history and case law background against which
our possession statutes were enacted and our analysis of its
internal provisions lead us to the conclusion that . . . the
Legislature did not intend to punish an individual for larceny of
property and the possession of the same property which he stole.).
In State v. Dow, this Court stated: where judgment must be
arrested upon one of two sentences of equal severity because of a
double jeopardy violation, the sentence which appears later on the
docket, or is second of two counts of a single indictment, or is
the second of two indictments, will be stricken. 70 N.C. App. 82,
87, 318 S.E.2d 883, 887 (1984)(internal citation and quotion
omitted). The trial court's judgment must be arrested in one of
the two cases where a defendant has been convicted of both larceny
and possession of the same stolen property. Id.
Applying these rules, we arrest the defendant's convictions of
felonious possession of stolen property in files 06-CRS-053923 and
06-CRS-053924 and remand for resentencing in accordance with this
 Defendant argues the trial court erred in calculating his
prior record level. We disagree.
N.C. Gen. Stat. § 15A-1340.14(f)(2005) provides:
A prior conviction shall be proved by any of
the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
Here, defendant's prior record level was properly proven by
stipulation. Included in the record on appeal is form AOC-CR-600
entitled Prior Record Level For Felony Sentencing. In Section I,
defendant was found to have accumulated eleven points for prior
felony convictions and was classified as a prior record level IV.
(R. 20) Section III is entitled Stipulation and states:
The prosecutor and defense counsel . . .
stipulate to the accuracy of the information
set out in Sections I. and IV. of this form,
including the classification and points
assigned to any out-of-state convictions and
agree with the defendant's prior record level
or prior conviction level as set out in
(Emphasis supplied). Both the assistant district attorney and
defense counsel signed this stipulation.
Further, defense counsel failed to object to the following
exchange between the assistant district attorney and the trial
Your Honor, the State would tender the
[d]efendant as a Level 4 for sentencing
purposes, exempting the convictions that have
been used to indict the [d]efendant as a
habitual felon. I've crossed those out on the
worksheet which [defense counsel] and
[defendant] have reviewed. . . . I've
calculated and defense counsel has stipulated
that his record Level is 4 with 11 prior
conviction points, and we would submit
[defendant] as a prior record Level 4 as a
Sufficient evidence in the record tends to show defendant
stipulated to his prior record level pursuant to N.C. Gen. Stat. §
15A-1340.14(f)(1). The trial court did not err by determining
defendant to be a prior record level IV offender. This assignment
of error is overruled.
V. Judgment and Commitment Orders
 Defendant argues the trial court erred by finding
defendant to be a violent habitual felon. The State acknowledges
this clerical error. We agree.
Here, the two Judgment and Commitment orders erroneously
indicate the trial court made no written findings because the
prison term imposed is: . . . for an adjudication as a violent
habitual felon. The transcript indicates and the State concedes,
this finding is incorrect. Based on the record, the trial court
should have indicated defendant: (1) pled guilty to attaining
habitual felon status and (2) was sentenced in the presumptive
range. Because defendant was properly sentenced as an habitual
felon, these clerical errors are not prejudicial. Upon remand, the
trial court is to correct these clerical errors in judgments 06-
CRS-053923 and 06-CRS-053924.
VI. Ineffective Assistance of Counsel
 Defendant argues his trial counsel was ineffective because
he failed to fully inform defendant of the possible maximum
sentence he faced before trial. We dismiss this assignment of
Where defendant cites no authority or presents no argument
pertaining to the assignment of error in his brief, it is deemed
abandoned pursuant to N.C.R. App. 28(b)(6)(2008). Here, defendant
presents no evidence tending to show he was not fully informed of
the possible maximum sentence prior to trial. Defendant
acknowledges the Record on Appeal and transcript do not contain
enough evidence for [defendant] to present a meritorious argument
on this issue before this Court. This assignment of error is
deemed abandoned and is dismissed. Id.
The trial court erred by convicting defendant for both larceny
and felony possession of the same stolen property. We arrest
judgment and vacate defendant's convictions and sentences for
felony possession of stolen property in 06-CRS-053923 and 06-CRS-
053924 and remand for resentencing. During remand, the trial court
is to correct clerical errors regarding defendant's habitual felon
Defendant's prior record level was properly stipulated to by
defendant pursuant to N.C. Gen. Stat. § 15A-1340.14(f).
Defendant's assignment of error regarding ineffective assistance of
counsel is deemed abandoned and dismissed pursuant to N.C.R. App.
P. 28(b)(6). Defendant's remaning convictions are undisturbed. We
find no error in part, arrest and vacate judgment in part, andremand for resentencing and correction of clerical error in
accordance with this opinion.
No Error in Part, Arrest and Vacate Judgment in Part, and
Judge STROUD concurs.
Judge JACKSON concurs by separate opinion.
JACKSON, Judge, concurs by separate opinion.
Although I concur fully with the majority opinion, I write
separately to express my opinion that while not all Appellate Rules
violations warrant dismissal, neither do they all require a
determination of whether to invoke Rule 2.
In State v. Hart, 361 N.C. 309, 644 S.E.2d 201 (2007), our
Supreme Court reminded this Court that every violation of the
rules does not require dismissal of the appeal or the issue,
although some other sanction may be appropriate, pursuant to Rule
25(b) or Rule 34 of the Rules of Appellate Procedure. Id. at 311,
644 S.E.2d at 202 (emphasis added). Therefore, when Rules
violations are not so egregious as to warrant dismissal, sanctions
may be appropriate. This leaves open the possibility that
sanctions may not be appropriate when the violations are minor.
[T]he exercise of Rule 2 was intended to be limited to
occasions in which a 'fundamental purpose' of the appellate rules
is at stake, which will necessarily be 'rare occasions.' Id. at
316, 644 S.E.2d at 205 (citations omitted). Rule 2 must be
applied cautiously. Id. at 315, 644 S.E.2d at 205. Before
exercising Rule 2 to prevent a manifest injustice, both [the
Supreme] Court and the Court of Appeals must be cognizant of the
appropriate circumstances in which the extraordinary step ofsuspending the operation of the appellate rules is a viable
option. Id. at 317, 644 S.E.2d at 206.
Because Rule 2 is an extraordinary step, I do not believe
that it should be invoked every time there are Rules violations
which fail to rise to the level of requiring dismissal. Just as
sanctions may not be appropriate even for minor Rules violations,
Rule 2 also may not be appropriate when the Rules violations are
Since Hart, this Court has declined to dismiss an appeal and
reached the merits of the case without invoking Rule 2 on several
occasions. See State v. Parker, 187 N.C. App. ___, ___ S.E.2d ___
(2007) (chastising defense counsel for failing to state the
appropriate standard of review pursuant to Rule 28(b)(6)); Cotter
v. Cotter, 185 N.C. App. 511, 648 S.E.2d 552 (2007) (declining to
dismiss, sanction, or invoke Rule 2 when the only violation was
failure to state the standard of review pursuant to Rule 28(b)(6));
State v. Burke, 185 N.C. App. 115, 648 S.E.2d 256 (2007) (same when
the violation of Rule 28(b)(6) was failing to cite the record page
upon which the stated assignment of error was found); Peverall v.
County of Alamance, 184 N.C. App. 88, 645 S.E.2d 416 (2007) (taxing
printing costs to plaintiff's counsel for three violations of Rule
28(b)(6) and a violation of Rule 10(c)(1)); and McKinley Bldg.
Corp. v. Alvis, 183 N.C. App. 500, 645 S.E.2d 219 (2007) (taxing
printing costs to defendants' counsel for violations of Rules
28(b)(4), 28(b)(6), and 10(c)(1)).
I would reserve the invocation of Rule 2 for those cases in
which the very nature of the particular Appellate Rule violation
requires its use. One example of such a violation is the one inthe case sub judice. Here, if we were to decline to invoke Rule 2,
there would be no assignment of error to address.
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