Opinion
No. COA10-1012
Filed 21 June 2011 This case not for publication
Appeal by Defendant from judgment entered 16 March 2010 by Judge D. Jack Hooks, Jr. in Superior Court, Wayne County. Heard in the Court of Appeals 21 February 2011.
Attorney General Roy Cooper, by Assistant Attorney General Roberta A. Ouellette, for the State. Lisa Skinner Lefler for Defendant.
Wayne County No. 09 CRS 050181.
Christopher Nathan Sellers (Defendant) was convicted of felony larceny on 16 March 2010. The trial court found Defendant's prior record level to be II, and sentenced Defendant to a prison sentence of six to eight months. The trial court suspended Defendant's sentence and placed Defendant on forty-eight months' supervised probation. Defendant appeals.
The State's evidence at trial tended to show that Tamara Wright (Mrs. Wright) and her husband, Malcolm Wright (Mr. Wright), left their home on 3 October 2008, for a weekend trip to New York. Mrs. Wright testified that before she left her home for New York, she placed her heirloom diamond ring in a jewelry saucer on top of a dresser in the master bedroom. Jeweler Steven Barnes testified that the ring contained seven diamonds and that he had previously appraised the ring at a value of $5,000.00. The Wrights' home is a ranch-style house with the master bedroom at one end of the home and a den and kitchen at the other end.
The Wrights' son, Garrett Wright (Garrett), testified to the following. While his parents were in New York, he brought three fellow Marines, Eric Ritter, Corey Strickland, and Matthew Wilson (the Marines), with him from Camp Lejeune to spend the weekend at his parents' home. In addition to the Marines, the only other house guests were Defendant, Ashley Williams (Ms. Williams), and a man named Kevin. Only Garrett, the Marines, and Defendant slept at the house. Garrett and Defendant had been friends for several years, and Defendant had slept at the house on previous occasions.
Garrett testified that he hosted a small party on Saturday night for the Marines, Defendant, Ms. Williams, and Kevin. All present were drinking alcohol. Ms. Williams and Kevin were only at the house for a few hours and left before midnight. Throughout the weekend, Garrett did not see any of the guests, except Defendant, anywhere in the house other than in the den, kitchen, and living room. On Sunday morning, Garrett found Defendant sleeping in the master bedroom. Garrett testified that Defendant "knew where the master bedroom was and [that Defendant] knew to stay out of it." The Marines testified they did not enter the master bedroom and that they did not take Mrs. Wright's ring.
Mr. and Mrs. Wright returned home on 7 October 2008, and Mrs. Wright discovered that her heirloom ring was missing. Mr. Wright testified that he immediately called Garrett and learned of the party and the names of the house guests. Mr. and Mrs. Wright then filed a report with the Wayne County Sheriff's Office.
Detective Lieutenant Shawn Harris (Detective Harris) of the Wayne County Sheriff's Office testified that he was assigned the Wrights' case. Detective Harris entered Mrs. Wright's ring into an electronic database that would show if Mrs. Wright's ring had been pawned locally. The database revealed that the ring had not been pawned locally. Detective Harris' personal investigation of local jewelers and pawn shops also failed to locate Mrs. Wright's ring.
Felicia Cumberlander (Ms. Cumberlander), Defendant's former co-worker, testified that the week after Defendant stayed at the Wright's house, Defendant told her he had found a ring with "five to six diamonds in it" in a Wal-Mart parking lot and that he sold it for $800.00. Defendant then lent Ms. Cumberlander $20.00. Ms. Cumberlander never saw the ring or the Defendant in possession of $800.00. Ms. Cumberlander further testified that Defendant had a reputation for often borrowing money from co-workers.
Another of Defendant's former co-workers, Christopher Musser (Mr. Musser), testified that he was aware Defendant had lent money to Ms. Cumberlander and another co-worker shortly after Defendant had spent the weekend at the Wrights' house. Mr. Musser also testified that Defendant had occasionally borrowed money from others and that Defendant had requested an advance on his paycheck in October of 2008.
At the close of the State's evidence, Defendant made "a motion to dismiss the charge of felonious larceny" because the State "ha[d] not put forth a scintilla of evidence concerning that . . . [D]efendant did steal, take, or carry away any diamond ring[.]" The trial court denied Defendant's motion. Defendant did not offer evidence. Following the close of all the evidence, Defendant renewed his motion to dismiss. The trial court again denied Defendant's motion.
As a preliminary matter, we note that the record on appeal does not contain Defendant's notice of appeal. Defendant filed a petition for a writ of certiorari with this Court on 4 October 2010, in which he stated that he gave "oral notice of appeal immediately following imposition of judgment on 16 March 2010." Defendant also stated that his "[a]ppellate counsel had telephone and electronic mail contact with the Clerk of Superior Court and the court reporter and is informed that the recording is not able to be recovered nor is the transcript available." Defendant asserts that his counsel "has made every effort to trace and obtain the transcript but is informed that it is not available."
Further, Defendant has filed "[t]he notes from the Clerk of Superior Court[,]" which he contends "clearly state that [Defendant] gave notice of appeal." The notes state: "Def. Appealed Verdict 2:41 PM." We may, in our discretion, issue a writ of certiorari "when the right to prosecute an appeal has been lost by failure to take timely action[.]" N.C.R. App. P. 21(a)(1); see also State v. McCoy, 171 N.C. App. 636, 639, 615 S.E.2d 319, 321 (2005) ("The provisions of Rule 21 are . . . discretionary.") (citation omitted). We therefore elect to exercise our discretion and treat Defendant's situation as a failure to file a timely notice of appeal and grant Defendant's petition for writ of certiorari in order to review his appeal.
Defendant argues that the trial court erred in denying his motions to dismiss because the State failed to present substantial evidence that Defendant took and carried away the ring. We disagree. "In order 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. Owens, 160 N.C. App. 494, 500, 586 S.E.2d 519, 523 (2003) (citation omitted). "`Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). "In reviewing the trial court's denial of a motion to dismiss, the evidence must be construed in the light most favorable to the State." Id. (citation omitted).
"To convict a defendant of felonious larceny, it must be shown that he: (1) took the property of another, (2) with a value of more than $1,000.00, (3) carried it away, (4) without the owner's consent, and (5) with the intent to deprive the owner of the property permanently." Id. at 500, 586 S.E.2d at 523-24 (citations omitted). In the present case, Defendant does not dispute that Mrs. Wright's ring had been appraised at a value of over $1,000.00.
Defendant cites State v. Moore, 312 N.C. 607, 324 S.E.2d 229 (1985), to support his argument that the State's evidence is insufficient to prove that Defendant took Mrs. Wright's ring. Defendant argues that, as in Moore, "the evidence disclose[s] no more than an opportunity for [the defendant] to have taken [property] with equal opportunity for [the property] to have disappeared in other ways." Moore, 312 N.C. at 612-13, 324 S.E.2d at 231-32. In Moore, our Supreme Court found insufficient evidence to show that the defendant was the perpetrator of the theft of a wallet where the victim left the wallet unattended in an unoccupied, unlocked store for at least forty minutes. Id., at 612-13, 324 S.E.2d at 232-33. Similarly, in State v. Gilmore, 142 N.C. App. 465, 469-70, 542 S.E.2d 694, 697-98 (2001), our Court found that the State had not presented substantial evidence to support a larceny charge despite the defendant's failure to move to dismiss for insufficient evidence. In Gilmore, the State produced evidence that a store window had been broken and items had been stolen. Id. at 467, 542 S.E.2d at 696. The defendant's fingerprint was found on a broken piece of window outside the store. Id. at 470, 542 S.E.2d at 698. However, the State also presented evidence that the defendant had been in the store lawfully around the time of the break-in, and there was no evidence that the fingerprint was imprinted at the time of the break-in. Id.
However, where the State presents substantial evidence that a defendant was the perpetrator of a larceny, a motion to dismiss may be properly denied. For example, our Court found substantial evidence that the defendant was the perpetrator of a larceny of furniture from a house in State v. Ethridge, 168 N.C. App. 359, 361-62, 607 S.E.2d 325, 326-27 (2005). In Ethridge, the State presented evidence tending to prove that a "vehicle registered to [the] [d]efendant . . . was seen at the crime scene[;]" that the "vehicle, with its tailgate open, was pulled up to the door of the house[;]" that a "coffee table was seen in the car[;]" and the "[d]efendant was placed by [a witness] next door to the crime scene on the day the offenses occurred." Id. at 362, 607 S.E.2d at 327. Similarly, in State v. Osborne, 149 N.C. App. 235, 242-44, 562 S.E.2d 528, 534-35 (2002), our Court found that the State presented substantial evidence that the defendant was the perpetrator of a larceny where items stolen from an apartment were found among the defendant's possessions and only the defendant and victim had access to the locked apartment during the relevant time period.
In the present case, the State presented evidence which, when viewed in the light most favorable to the State, supports the conclusion that Defendant was the perpetrator of the larceny. Defendant was one of seven people who had access to Mrs. Wright's ring. From the testimony of Garrett, the Marines, and Ms. Williams, the jury could conclude that Defendant was the only guest to enter the room from which the ring was taken. Defendant knew he was not allowed in that area of the house. The Marines testified that they did not take the ring. Moreover, shortly after Defendant spent the weekend at the Wright's home, he told a co-worker that he had found a ring containing "five to six diamonds" — a ring similar to the seven-diamond ring stolen from Mrs. Wright. Defendant also told a co-worker that he sold the ring for $800.00, a fact somewhat corroborated by Defendant's unusual behavior of lending money to co-workers. Considered together, and viewed in the light most favorable to the State, this was substantial evidence that Defendant was the person who took and carried away Mrs. Wright's ring.
The State's evidence showing that Defendant took and carried away the stolen property is notably greater than that produced in both Moore and Gilmore. In Moore, the State did not present any evidence that the defendant had a greater opportunity than anyone else to steal the victim's wallet during the forty minutes that the store was unattended and unlocked. Moore, 312 N.C. at 612-13, 324 S.E.2d at 232-33. In the present case, the State's evidence showed that Defendant was one of a small number of people with access to Mrs. Wright's ring, and that Defendant was the only person seen in the bedroom from which the ring was taken. In Gilmore, the State did not present any evidence that the defendant was at the scene of the crime during the relevant time. Gilmore, 142 N.C. App. at 470, 542 S.E.2d at 698. In the present case, the State presented evidence tending to show that Defendant was the only house guest who entered the master bedroom, the scene of the crime, during the relevant time period.
In sum, the State presented substantial evidence which, when viewed in the light most favorable to the State, proved the elements of the charge of felony larceny. Defendant's motions to dismiss for insufficiency of evidence were therefore properly denied.
No error.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).