State v. Hicks

• Decision Date: 07 August 2012
• Docket Number: No. COA11–1165.,COA11–1165.
• Citation: 729 S.E.2d 732
• Parties: STATE of North Carolina v. Boyd Johnston HICKS, Defendant.
• Court: North Carolina Court of Appeals

729 S.E.2d 732

STATE of North Carolina

v.Boyd Johnston HICKS, Defendant.

No. COA11–1165.

Court of Appeals of North Carolina.

Aug. 7, 2012.

Appeal by defendant from judgments entered 13 January 2011 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 8 February 2012.

Attorney General Roy Cooper, by Assistant Attorney General G. Mark Teague, for the State.

Duncan B. McCormick for defendant-appellant.

GEER, Judge.

Defendant Boyd Johnston Hicks appeals from his convictions of four counts of conspiracy to commit breaking and entering, four counts of conspiracy to commit larceny after breaking and entering, two counts of burning a building used for trade, two counts of felonious breaking and entering, and two counts of felonious larceny. Defendant primarily contends on appeal that the trial court erred in denying his motion to dismiss the two counts of burning a building used for trade. As the State presented substantial evidence to prove the charges, we find no error.

Facts

The State's evidence tended to show the following facts. In the summer of 2009, Darell Beale and Chris West worked together at Dickinson Tire in Greenville, where they were supervised by defendant. At one point, defendant asked Beale and West whether they would be interested in making some extra money, mentioning that he knew of some places that did not have alarms.

Subsequently, the men would meet, and defendant would tell Beale and West which stores to rob and what tires to get from each store. The meetings took place at different locations, with the men sometimes going out to eat, sometimes meeting at defendant's house, and sometimes meeting at West's house. When the men went to the stores, defendant drove his van, served as a lookout, and sometimes helped the other two men load the tires into the van. Although West and Beale sometimes kept some of the stolen tires for themselves, they generally gave most of the tires to defendant. Defendant would then pay Beale for the tires, and Beale would in turn pay West his share.

On 13 July 2009, defendant, Beale, and West broke into Fulcher Tire Sales and Service, Inc. and stole rims and tires. West and Beale disposed of the rims, but gave the majority of the tires to defendant. Beale took the stolen eighteen-wheeler tires to someone he knew.

The men returned to Fulcher Tire a second time on 4 August 2009 and stole batteries and more tires. West left with some of the merchandise while Beale and defendant remained in the store. When West returned, the store was on fire. West testified at trial that Beale set the fire. The men then went to West's apartment to transfer the tires to defendant. Defendant paid Beale and West $600 .00 each for the stolen tires. On that same evening, the three men also went to Colortyme Custom Wheels, which was on the same road as Fulcher Tire, to steal tires and rims. That store too caught on fire.

On 10 August 2009, Beale and West broke into Carolina Tire and Auto Sales at the direction of defendant. West had worked at the store for a time, while defendant was a frequent visitor to the store. Beale and West gave some of the tires they stole to defendant and left some by the road where the police found them. When the owner arrived at the store, he found the front door pried open and determined that a truck, tires, rims, and tools had been stolen.

Subsequently, West was identified by a confidential informant who had reviewed surveillance tapes of an unrelated robbery. When the police apprehended West, he admitted to several instances of breaking and entering and identified both defendant and Beale as accomplices in some of his thefts.

Defendant was indicted for four counts of conspiracy to commit breaking and entering; four counts of conspiracy to commit larceny after breaking and entering; four counts of conspiracy to commit possession of stolen goods; one count of conspiracy to commit larceny of a motor vehicle; one count of conspiracy to commit possession of a stolen vehicle; two counts of conspiracy to burn a building used for trade; two counts of burning a building used for trade; two counts of felonious breaking and entering; two counts of felonious larceny; and two counts felonious possession of stolen goods.

During the trial, at the close of the State's evidence, the trial court granted defendant's motion to dismiss one count of conspiracy to commit larceny of a motor vehicle; one count of conspiracy to possess a stolen motor vehicle; and two counts of conspiracy to burn a building used for trade. Defendant did not present any evidence. The jury found defendant guilty of four counts of conspiracy to commit breaking and entering; four counts of conspiracy to commit larceny after breaking and entering; four counts of conspiracy to commit felonious possession of stolen goods; two counts of burning a building used for trade; two counts of felonious breaking and entering; two counts of felonious larceny; and two counts of felonious possession of stolen goods. The trial court arrested judgment as to the four counts of conspiracy to possess stolen goods and two counts of possession of stolen goods.

The trial court then sentenced defendant to two consecutive presumptive-range terms of 11 to 14 months imprisonment for felonious breaking and entering and felonious larceny with respect to Colortyme. For the Fulcher Tire breaking and entering and larceny on 4 August 2009, the trial court sentenced defendant to a presumptive-range term of 11 to 14 months imprisonment on each count. Those sentences were to run consecutively with one another and at the conclusion of the sentences relating to the breaking and entering and felonious larceny of Colortyme.

For each count of setting fire to a place of business—involving Fulcher Tire and Colortyme—the trial court sentenced defendant to a presumptive-range term of 25 to 30 months imprisonment. Those sentences were to run consecutively to each other and at the end of the term of imprisonment imposed for the felonious larceny and breaking and entering of Fulcher Tire.

With respect to one count of conspiracy to commit breaking and entering and one count of conspiracy to commit larceny after breaking and entering, the trial court imposed a presumptive-range term of eight to 10 months imprisonment for each count, with the sentences to run consecutively with one another and at the expiration of the terms of imprisonment imposed for setting fire to a place of business. With respect to the remaining conspiracy counts, the trial court then imposed six presumptive-range sentences of eight to 10 months imprisonment, suspended those sentences, and ordered 36 months of supervised probation to begin at the expiration of the final term of imprisonment. Defendant timely appealed to this Court.

I

Defendant first contends on appeal that the trial court erred in denying his motion to dismiss all but one of the conspiracy counts because the evidence supported only one ongoing conspiracy and not multiple, separate conspiracies. The State, however, argues that defendant did not make that argument before the trial court and, therefore, did not preserve the issue for appellate review. We agree.

Defendant's motion to dismiss was the subject of extensive argument in the trial court with the trial judge asking numerous questions regarding the evidence supporting each count of the various indictments. Ultimately, the trial court granted the motion to dismiss as to four different counts. During that oral argument, however, defendant never contended that the separate conspiracy counts should be dismissed. Instead, defendant's apparent strategy appeared to be a divide and conquer approach, focusing on the evidence of each breaking and entering separately in order to argue that West and Beale had committed a number of the thefts on their own volition without defendant's involvement. The argument made on appeal would not have been consistent with that strategy.

As our Supreme Court has explained: “This Court has long held that where a theory argued on appeal was not raised before the trial court, ‘the law does not permit parties to swap horses between courts in order to get a better mount’ “ on appeal. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). Because defendant's argument regarding the conspiracy counts was not properly preserved, we do not address it.

Defendant next contends that the trial court erred in not dismissing the counts of burning a building used for trade. When considering a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the crime and of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002).

“ ‘Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ “ State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must be viewed “in the light most favorable to the State, giving the State the benefit of every...