State v. Jennings
| Decision Date | 07 June 2011 |
| Docket Number | NO. COA10-1250,Wake County No. 09 CRS 14056,COA10-1250 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. BRYAN DELANO JENNINGS, JR. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by Defendant from judgments entered 7 May 2010 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 9 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General
Terence D. Friedman, for the State.
James N. Freeman, Jr. for Defendant.
Defendant appeals from judgments entered on his convictions of obtaining property by false pretenses and misdemeanor larceny. For the following reasons, we conclude there was no error.
On 21 April 2009, Defendant was indicted on one count of obtaining property by false pretenses and one count of misdemeanor larceny, arising out of allegations that Defendant had stolencertain goods from a TJ Maxx Home Goods store (TJ Maxx or store) in Apex, North Carolina. The matter came on for trial on 5 May 2010.
The evidence showed that on 15 February 2009, Defendant caught the attention of a TJ Maxx loss prevention detective, Kristina Ruffin, when he came into the store with two empty plastic bags in his shopping cart. Ms. Ruffin testified that she "[kept] an eye on [Defendant] during his entire time in the store" by using the camera surveillance system, watching Defendant through binoculars in her office, and monitoring him in person on the sales floor. The State then introduced two videos that had captured Defendant's movements throughout the store and his transaction at the cash register. The videos were played for the jury as Ms. Ruffin testified to their contents and her own observations at that time.
The first video demonstrated that upon entering the store, Defendant had in his shopping cart two empty plastic TJ Maxx shopping bags and one TJ Maxx bag with merchandise-a star-shaped house decoration-inside. As Defendant walked through the store, he took various items of merchandise from the racks, removing their hangers and folding or rolling them up before placing them in his cart. After Defendant placed several other items on the top of his cart, including a wine rack from the housewares section, Ms. Ruffin went to the sales floor to observe him more closely. She was standing approximately five feet away from Defendant when she saw him transfer many of the items in his cart into the empty shoppingbags. Ms. Ruffin explained, as the video showed, that the two shopping bags were now full and tied up. A t-shirt, a pair of pants, and the wine rack remained on top of the cart.
The second video showed Defendant at the customer service desk, and Ms. Ruffin testified that he had not made any other transaction in the store before approaching TJ Maxx employee Sharon Zimmer to check out. Defendant first sought to return three items and presented two different receipts. One item Defendant asked to return was the star decoration with which he had entered the store. Defendant proffered a receipt for the decoration, and Ms. Zimmer refunded him cash. Ms. Ruffin observed that the other two items he sought to return-a Duke t-shirt and a pair of pants—had not come into the store with Defendant. Nevertheless, Defendant handed Ms. Zimmer a second receipt, which was from a different TJ Maxx store, which he represented as being for the Duke t-shirt and the pants. To the contrary, having seen Defendant take them off the racks of the Apex store that day, Ms. Ruffin testified that this receipt was not, in fact, for the specific t-shirt and pants that Defendant claimed he had previously purchased and was now returning. To explain, Ms. Ruffin described TJ Maxx's price coding system, which assigns the same style number to items of the same type, so items of " the same color, same size, same logo, ha[ve] the same style number." Where only the style number appears on a purchasereceipt, Defendant "could have bought those items, had the same style number, same size, pick it up off the floor and returned it." Thus, Ms. Zimmer would not have known if the Duke t-shirt and pants were those represented on the receipt when she gave Defendant cash back for the return of these items. Defendant then used that money to purchase the wine rack, another t-shirt, and a pair of pants.
Ms. Ruffin noticed that Defendant still had the two plastic bags filled with merchandise he had taken off the store's racks that day tied up in his shopping cart as he purchased these items and left TJ Maxx. As Defendant exited, Ms. Ruffin and members of the Apex Police Department asked Defendant to accompany them to the store's loss prevention office. Defendant obliged, and about twenty items were uncovered from the tied bags that had been in the bottom of his shopping cart, totaling $326.82 worth of TJ Maxx merchandise. Law enforcement later searched Defendant's car pursuant to a search warrant and found a wide array of new clothing; a large number of receipts from various stores, including a lot of returned receipts for items made both with and without purchase receipts; and two large shopping bags filled with other empty shopping bags, as shown in photographs introduced as exhibits by the State. One was a large plastic TJ Maxx bag full of other plastic empty TJ Maxx bags; the other large bag was from Marshall's and was full of empty plastic Marshall's department store bags.
Defendant testified in his own defense, denying that the two plastic bags he had in his cart upon entering the store were, in fact, empty but, rather, contained various items that he planned on returning. He explained that he had filled the bags with merchandise, including a Duke t-shirt and pair of sweatpants, which he had not taken from TJ Maxx that day but had previously purchased. Defendant testified that items remained in the bags when he left the store because customer service refused to accept them back as the thirty-day refund period for returns had expired.
On 7 May 2010, the jury found Defendant guilty of obtaining property by false pretenses and misdemeanor larceny. The trial court then entered judgment on the convictions, imposing a suspended sentence of six to eight months with 36 months of supervised probation. Defendant gave oral notice of appeal.
Defendant argues that the trial court erred in denying his motion to dismiss the charge of obtaining property by false pretenses on the ground of insufficient evidence. Specifically, Defendant contends that the State failed to provide substantial evidence that he ever made a false representation of a subsisting fact to TJ Maxx. We disagree.
When a defendant in a criminal trial makes a motion to dismiss a charge against him on the ground that there is not sufficientevidence, the appropriate standard of review State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). Substantial evidence' is relevant evidence that a reasonable person might accept as adequate or would consider necessary to support a particular conclusion." State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (internal citations omitted); see also Scott, 356 N.C. at 597, 573 S.E.2d at 869 ().
Scott, 356 N.C. at 596, 573 S.E.2d at 869 (internal quotation marks and citation omitted. "When determining the sufficiency of the evidence to support a charged offense, we must view the evidence 'in the light most favorable to the State, giving the State the benefit of all reasonable inferences'" which may be drawn therefrom. State v. Ridgeway, 185 N.C. App. 423, 433, 648 S.E.2d 886, 893-94 (2007) (quoting State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)). "'Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.'" State v. Parker, 185 N.C. App. 437, 440-41, 651 S.E.2d 377, 380 (2007) (quoting State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996)). "In addition, the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence[,]" and such "evidence that does not conflict 'may be used to explain or clarify the evidence offered by the State.'" Scott, 356 N.C. at 596, 573 S.E.2d at 869 (internal citations omitted). "When ruling on a motion to dismiss, the trial court should be concerned onlyabout...
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