State v. Barnes, COA95-739

• Decision Date: 06 February 1996
• Docket Number: No. COA95-739,COA95-739
• Citation: 121 N.C.App. 503,466 S.E.2d 294
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Michael Anthony BARNES.

Page 294

466 S.E.2d 294

121 N.C.App. 503

STATE of North Carolina v. Michael Anthony BARNES.

No. COA95-739.

Court of Appeals of North Carolina.

Feb. 6, 1996.

Robert H. Edmunds, Jr., Greensboro, for defendant-appellant.

WYNN, Judge.

The State's charge of common law robbery against defendant resulted in a finding of guilt on the lesser offense of larceny from the person. He was sentenced upon his plea of guilty to being a habitual felon.

The State's evidence shows that on 11 July 1994, James Morana worked alone at the House of Eyes, a kiosk located in Cotton Mill Square Mall in Greensboro. At approximately 8:40 p.m., he left the kiosk unattended as he talked to a saleswoman in a neighboring shop approximately 25 to 30 feet away. Upon being told by another salesperson that someone was in his kiosk, Mr. Morana returned to find defendant rising from behind the counter near the cash register. Mr. Morana stepped past defendant, looked under the counter, and saw that a bank bag containing approximately $50 in cash was missing. About that time, defendant left the kiosk. Mr. Morana chased defendant, cornered him against a wall, and asked defendant to return the bag. As defendant pushed his way past him, Mr. Morana saw a bulge in defendant's shirt. Mr. Morana grabbed defendant's shirt, exposing the bank bag. Defendant fled. He subsequently turned himself in to the police.

Defendant did not present any evidence. Following his conviction of the crime of larceny from the person, he appealed to this court.

On appeal, defendant contends that the charge of larceny from the person was not proven because the evidence fails to establish that the bank bag was taken from Mr. Morana's person. We agree.

Our Courts have routinely upheld convictions of larceny from the person when the stolen property was, or had been, attached to the victim's person at the time of, or immediately prior to, the taking, such as when a purse, wallet, money or other item was dislodged and taken from the victim's hand, arm, or pocket. See, e.g., State v. Young, 305 N.C. 391, 289 S.E.2d 374 (1982); State v. Washington, 51 N.C.App. 458, 276 S.E.2d 470 (1981); State v. Simmons, 33 N.C.App. 705, 236 S.E.2d 188, cert. denied, 293 N.C. 592, 238 S.E.2d 151 (1977); State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968); State v. Skipper, 230 N.C. 387, 53 S.E.2d 169 (1949). If, however, the victim merely stood near the property at the time of the taking, then the criminal commits misdemeanor or felonious larceny, depending upon the value of the goods stolen. For example, in State v. Lee, 88 N.C.App. 478, 363 S.E.2d 656 (1988), the victim stood four to five steps away from her grocery cart when the defendant stole the victim's purse from her cart. Finding that "the deficiency in the State's evidence is so clear," this Court ex mero motu vacated the defendant's conviction for larceny from the person and remanded the case for the entry of judgment upon a conviction of misdemeanor larceny. Id. at 479-80, 363 S.E.2d at 657.

In 1991, our Supreme Court broadened the definition of "from the person" when it upheld a conviction of larceny from the person based on evidence that the defendant stole from a cash register as the cashier opened the register to make change, even though the cash had not been attached to, or dislodged from, the cashier's person. State v. Buckom, 328 N.C. 313, 401 S.E.2d 362 (1991). Noting that the term "from the person" had never been defined in the General Statutes, the Court looked to the common law definition of the crime of larceny from the person and held that it is not necessary that the stolen property be attached to the victim's person in order for the theft to constitute larceny from the person as long as the property was within the victim's protection and presence at the time of the taking.

Relying upon Buckom, the State argues that although Mr. Morana was away from the store, "he was still in a position to watch that store, therefore the larceny was from the...