State v. Edgerton

• Decision Date: 06 August 2019
• Docket Number: No. COA18-1091,COA18-1091
• Citation: 266 N.C.App. 521,832 S.E.2d 249
• Parties: STATE of North Carolina v. Lamont EDGERTON, Defendant.
• Court: North Carolina Court of Appeals

266 N.C.App. 521

832 S.E.2d 249

STATE of North Carolina

v.Lamont EDGERTON, Defendant.

No. COA18-1091

Court of Appeals of North Carolina.

Filed: August 6, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Erika N. Jones, for the State.

W. Michael Spivey, for Defendant-Appellant.

INMAN, Judge.

Felony habitual larceny, which elevates the crime of misdemeanor larceny if the defendant has been convicted of four or more prior larcenies, does not include as an essential element the requirement that the defendant was represented by counsel or waived counsel in obtaining those prior larceny convictions.

Lamont Edgerton ("Defendant") appeals following a jury verdict finding him guilty of habitual larceny and attaining the status of an habitual felon. Defendant argues that (1) the indictment was facially invalid and insufficient to charge him with habitual larceny; (2) he was not properly arraigned for the charge of habitual larceny; (3) his attorney was not authorized to stipulate to his prior larceny convictions; (4) the State did not provide sufficient evidence to prove the charge of habitual larceny; and (5) the use of an Automated Criminal/Infraction System printout to prove a prior felony conviction violated the best evidence rule. After careful review of the record and applicable law, we hold that Defendant has failed to demonstrate error.

I. Factual and Procedural History

The record and evidence introduced at trial reveal the following:

On 14 September 2016, employees at Ingles Markets, Incorporated ("Ingles") witnessed Defendant "sticking ... meats inside of a bag he brought in the store for himself." Defendant then left the store without paying for the items. One employee followed Defendant outside and planned to identify the license plate of Defendant's vehicle, but Defendant made eye contact with him and the employee returned inside the store.

Defendant reentered the store and confronted the employees at the Ingles deli counter. Defendant became "pretty rowdy," asked the employees if there was a problem, and said if there was he would "be back and take care of that problem." Both employees felt threatened by Defendant's behavior and told Defendant to take the meat. Once Defendant had left the store, they notified their management and called the police.

Sergeant Andy Greenway ("Sgt. Greenway") of the Lake Lure Police Department was dispatched to Ingles to investigate the call. He viewed surveillance footage of the incident and recognized Defendant. Sgt. Greenway and another officer found Defendant in front of his house with his father and sister and noticed two empty Ingles bags in the driveway. He then arrested Defendant, who asked, "Can I not just have my dad go back and pay for the pork chops?" Sgt. Greenway told Defendant that it was too late for that. Defendant told Sgt. Greenway that he took the pork chops because he had no money and wanted something nice to eat on his birthday.

Defendant was indicted for habitual larceny and as an habitual felon. The habitual larceny charge came on for jury trial during the 23 April 2018 session of Rutherford County Superior Court. At the close of the State's evidence, after conferring with Defendant, Defendant's counsel informed the court "for the record, we would stipulate to the sufficient prior larcenies to arrive at the level of habitual larceny." On 25 April 2018 the jury returned a verdict finding Defendant guilty of larceny.

After the jury returned its verdict, Defendant became agitated, made comments to the jury, and was removed from the courtroom when he got "more and more out of control." The court found that Defendant "was a physical threat to everyone in the courtroom" and ruled that he had waived his right to be present.

The habitual felon phase of the trial proceeded in Defendant's absence.¹ Defendant's counsel declined to stipulate to Defendant's felony record. Karla Tower, an assistant clerk of the Rutherford County Superior Court, testified about Defendant's prior felony convictions and the jury found Defendant guilty of being an habitual felon.

The next day, the court reconvened for sentencing with Defendant present. The court found Defendant to have a level VI prior felony record level, and sentenced Defendant to 103 to 136 months’ imprisonment. Defendant appeals.

II. Analysis

A. Indictment

Defendant argues the indictment charging him with habitual larceny was facially invalid because it did not allege all the essential elements of the offense. We disagree.

Our General Statutes provide that larceny of property valued $1,000 or less is a misdemeanor, and larceny of property valued more than $1,000 is a felony. N.C. Gen. Stat. § 14-72(a) (2017). But our statutes also provide that a charge of larceny ordinarily classified as a misdemeanor can be elevated to a felony charge when the defendant has committed four or more prior larcenies. The larceny must have been:

[c]ommitted after the defendant has been convicted in this State or in another jurisdiction for any offense of larceny under this section, or any offense deemed or punishable as larceny under this section, or of any substantially similar offense in any other jurisdiction, regardless of whether the prior convictions were misdemeanors, felonies, or a combination thereof, at least four times. A conviction shall not be included in the four prior convictions required under this subdivision unless the defendant was represented by counsel or waived counsel at first appearance or otherwise prior to trial or plea.

N.C. Gen. Stat. § 14-72(b)(6) (2017) (emphasis added). Defendant argues that the felony indictment in this case is invalid because it did not specifically allege that he was represented by counsel or had waived counsel in the proceedings underlying each of his prior larceny convictions. For the reasons explained below, we hold that the counsel requirement is not an essential element of the crime of habitual larceny and that the indictment was therefore valid.

A constitutionally sufficient indictment "must allege lucidly and accurately all the essential elements of the offense endeavored to be charged." State v. Brice , 370 N.C. 244, 249, 806 S.E.2d 32, 36 (2017) (citations omitted). An indictment that fails to allege an essential element of the offense is facially invalid, thereby depriving the trial court of jurisdiction. Id. We review a challenge to the facial validity of an indictment de novo , State v. Williams , 368 N.C. 620, 622, 781 S.E.2d 268, 270 (2016), considering the matter anew and freely substituting our own judgment for that of the trial court. State v. Biber , 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).

The indictment in this case alleges that Defendant did "steal, take, and carry away 2 packs of pork products, the personal property of Ingles Markets, Inc." and, in a separate count, alleges that Defendant previously had been convicted of four larceny offenses. The indictment lists the date of conviction, court, and file number for each larceny offense. The indictment does not allege that Defendant obtained those convictions while he was represented by counsel or had waived counsel.

We consider whether Section 14-72(b)(6) ’s counsel requirement is an essential element of the offense, and is therefore required to be alleged in an indictment for habitual larceny, or whether the requirement provides for an exception to criminal liability that is not an essential element of the offense. Each provision in a statute defining criminal behavior is not necessarily an essential element. Such provisions may instead constitute, for example, affirmative defenses or evidentiary issues to be proven at trial. See, e.g., State v. Sturdivant , 304 N.C. 293, 309-10, 283 S.E.2d 719, 730-31 (1981) (holding that consent is an absolute defense to kidnapping, rather than an essential element); State v. Leaks , 240 N.C. App. 573, 578, 771 S.E.2d 795, 799 (2015) (holding the manner used by a sex offender to notify the sheriff of a change in address is an evidentiary issue to be proven at trial, rather than an essential element of the crime). In some instances, we have held that exceptions to criminal statutes are "hybrid" factors, which the State is not required to allege in an indictment and for which it bears no initial burden of proof but must rebut evidence that a defendant's conduct falls within the exception. See State v. Trimble , 44 N.C. App. 659, 666, 262 S.E.2d 299, 303-04 (1980).

Allegations beyond the essential elements of a crime need not be included in an indictment. State v. Rankin , ––– N.C. ––––, ––––, 821 S.E.2d 787, 792 (2018).

The language of Section 14-72(b)(6) provides for an exception to the crime of habitual larceny, removing from consideration prior convictions obtained when a defendant was not represented by counsel and had not waived counsel. "Whether an exception to a statutorily defined crime is an essential element of that crime or an affirmative defense to it depends on whether the statement of the offense is complete and definite without inclusion of the language at issue." Id. When the statute's statement of the offense is complete and a subsequent clause provides an exception to criminal liability, the exception need not be negated by the language of the indictment. State v. Mather , 221 N.C. App. 593, 598, 728 S.E.2d 430, 434 (2012) (citing State v. Connor , 142 N.C. 700, 701, 55 S.E. 787, 788 (1906) ). There are no "magic words" that indicate an exception to a statutory offense is a defense: "[t]he determinative factor is the nature of the language in question." State v. Brown , 56 N.C. App. 228, 230, 287 S.E.2d 421, 423 (1982). The question is whether the language is part of the definition of the crime or if it withdraws a class from an already complete definition of the crime. Id.

This Court has employed this analysis with respect to several criminal statutes, but we have not always focused on the same factors in making this determination. Prior...