Opinion
No. COA11-99
Filed 6 September 2011 This case not for publication
Upon writ of certiorari granted 7 September 2010 from judgment entered 5 May 2009 by Judge Timothy S. Kincaid in Cleveland County Superior Court. Heard in the Court of Appeals 18 August 2011.
Attorney General Roy Cooper, by Assistant Attorney General Sueanna P. Sumpter, for the State.
Edward Eldred, for defendant-appellant.
Cleveland County Nos. 08 CRS 55157, 08 CRS 055159.
Defendant is entitled to a new trial based upon the trial court instructing the jury on alternate theories upon which defendant could be convicted of felonious larceny, where one of the theories was not supported by the evidence.
I. Factual and Procedural Background
On 26 August 2008, the residence of Brian Allen Davis (Davis) and Luanne McKnight (McKnight) was broken into between approximately 5:30 a.m. and 4:25 p.m., while they were not at home. Various items were taken, including three long guns, one of which had been purchased for $600.00, a hunting knife, bicentennial coins worth $50.00, and other old coins.
Evidence presented at trial established that on 26 August 2006, Johnnie Dunn (defendant) rode with a woman named Sharon Cook (Cook) to the residences of Edward Padgett and Billy Gene Grigg (Grigg), where they offered to sell the firearms later identified as those stolen from Davis and McKnight's residence. Grigg purchased the guns for $150.00.
Cook pled guilty to breaking and entering and possession of a firearm by a felon in connection with the events of 26 August 2008.
On 10 November 2008, defendant was indicted for felonious breaking and entering, felonious larceny, felonious possession of stolen goods, and possession of a firearm by a felon. On 15 May 2009, a jury found defendant not guilty of felonious breaking and entering and guilty of the two other charges. The trial court found defendant to be a level VI for felony sentencing based upon 27 prior record points. Defendant was sentenced to consecutive terms of 20-24 months imprisonment for the charge of felonious larceny and 29-35 months imprisonment for the charge of possession of a firearm by a felon. The trial court arrested judgment on the conviction for felonious possession of stolen goods.
This Court granted defendant's petition for writ of certiorari to review the two judgments entered by the trial court.
II. Jury Instructions
In his only argument, defendant contends that the trial court committed plain error in instructing the jury that it could find defendant guilty of felonious larceny if it found that defendant committed larceny pursuant to a breaking and entering or if he committed larceny of goods worth more than $1,000.00 because there was no evidence to support submission of felonious larceny to the jury upon the theory that the goods were worth more than $1,000.00. We agree.
A. Standard of Review
When an instructional issue is not preserved at trial, the court may review the instructions for plain error. State v. Maready, 362 N.C. 614, 621, 669 S.E.2d 564, 568 (2008). Plain error is " fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done." Id. (internal quotation marks omitted).
B. Analysis
Before applying plain error analysis to jury instructions, "it is necessary to determine whether the instruction complained of constitutes error." State v. Cummings, 361 N.C. 438, 470, 648 S.E.2d 788, 807 (2007), cert. denied, 552 U.S. 1319, 170 L. Ed. 2d 760 (2008). The trial judge should not give jury instructions that are not supported by the evidence. State v. Smith, ___ N.C. App. ___, ___, 696 S.E.2d 904, 911-12 (2010).
It was error to instruct the jury that it could convict the defendant of felonious larceny of stolen goods on the theory that the goods were worth more than $1,000.00 because the evidence did not support this theory. McKnight testified that the stolen bicentennial coins were worth $50.00 and that she had purchased one of the three stolen guns for $600.00. Grigg purchased all three guns for $150.00. No other evidence was presented concerning the value of the stolen goods.
We next consider whether the trial court's error in instructing the jury on a theory not supported by the evidence rises to the level of plain error where the instruction also included an alternate theory, which defendant does not assert was unsupported by the evidence.
N.C. Gen. Stat. § 14-72 describes the circumstances under which larceny is raised from a misdemeanor to a felony. The larceny is felonious if it was committed pursuant to a breaking or entering or if the value of the goods stolen was over $1,000.00. N.C. Gen. Stat. § 14-72(a), (b)(2).
The trial court may instruct the jury on alternate acts that will establish an element of the offense. State v. Lyons, 330 N.C. 298, 303, 412 S.E.2d 308, 312 (1991). In an unpublished decision, this Court determined that the larceny statute allows for this type of disjunctive instruction, because felonious larceny is one crime that can be established by evidence of a number of different circumstances indicated by the statute. State v. Batts, 173 N.C. App. 233, 617 S.E.2d 724 (2005) (unpublished). However, when the court instructs the jury disjunctively, there must be evidence to support each of the alternatives. State v. Johnson, 183 N.C. App. 576, 582, 646 S.E.2d 123, 127 (2007).
In Johnson, the trial court instructed the jury that it could find the defendant guilty of second-degree kidnapping if it found that the defendant restrained or confined the victim for the purpose of committing the offense of breaking or entering, committing the offense of larceny, or facilitating his flight after committing those offenses. Id. at 581-82, 646 S.E.2d at 127. In a plain error review of the instructions, this Court held that the defendant was entitled to a new trial because two of the three theories explained in the instructions were not supported by the evidence, making it impossible to tell upon which theory the jury relied in reaching its verdict. Id. at 584, 646 S.E.2d at 128.
In the instant case, the trial court's jury instructions similarly provided the jury with alternate theories upon which it could base a conviction, only one of which was supported by the evidence. Because the instruction in the instant case presents the identical type of error as the instructions in Johnson, we are bound by our holding in Johnson. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (holding that one panel of the Court of Appeals cannot overrule another panel). Defendant is therefore entitled to a new trial on the charge of felonious larceny.
Defendant is also entitled to a new trial on the charge of felonious possession of stolen goods because the instruction to the jury on this charge was affected by the same error as the instruction on felonious larceny. Judgment was arrested on this charge based solely upon defendant's conviction of felonious larceny based upon the same goods. See State v. Scanlon, 176 N.C. App. 410, 422-23, 626 S.E.2d 770, 779 (2006) ("While a defendant may be charged with larceny, receiving, and possession of the same property, a defendant may only be convicted for only one of those offenses."). The conviction on this charge and the order arresting judgment are vacated.
We note that in cases where alternative theories are submitted to the jury, this error can be avoided by the submission of special interrogatories to the jury, having them specify which of the alternative theories was the basis of the guilty verdict.
III. Conclusion
The judgments in case 08 CRS 55157 (felonious larceny and felonious possession of stolen goods) are vacated and these matters are remanded to the trial court for a new trial. Defendant did not argue error as to his conviction for possession of a firearm by a felon (case 08 CRS 55159), and that appeal is dismissed. N.C. R. App. P. 28(b)(6).
APPEAL DISMISSED as to case 08 CRS 55159.
NEW TRIAL as to case 08 CRS 55157.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).