State v. Sellers
| Decision Date | 05 July 2016 |
| Docket Number | No. COA15–1163.,COA15–1163. |
| Citation | 789 S.E.2d 459,248 N.C.App. 293 |
| Parties | STATE of North Carolina, v. Kelvin Leander SELLERS, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General, Roy Cooper, by Assistant Attorney General, Joseph L. Hyde, for the State.
Kimberly P. Hoppin, for Defendant–Appellant.
Defendant appeals from judgments entered 2 April 2013 by Judges L. Todd Burke and V. Bradford Long after a jury convicted him of financial card theft, possession of stolen property, and the status of being an habitual felon. Our review of the indictment reveals the indictment did not contain all of the elements of possession of stolen property. Therefore, we vacate the judgment as it pertains to Defendant's conviction for possession of stolen property. Defendant contends the trial court erred in denying his motion to dismiss the charges of financial card theft because the State failed to present sufficient evidence of those offenses. Defendant also argues he was denied the effective assistance of counsel, though he did not file a motion for appropriate relief with the trial court. We hold the trial court did not err in part, but we vacate the conviction of possession of stolen goods, and dismiss the ineffective assistance of counsel claims without prejudice for Defendant to file a motion for appropriate relief with the trial court.
On 3 October 2011, a grand jury charged Defendant with breaking and entering a motor vehicle, financial card theft, and possession of stolen property. For the charge of possession of stolen property, the indictment reads as follows:
And the jurors for the State upon their oath present that on or about the date(s) of offense shown and in the county named above the defendant named above unlawfully, willfully, and feloniously did possess one handbag containing personal items, one wallet, one Wachovia debit/credit card, one social security card, one check book, and $30.00 in United States currency.
Defendant's case came for a jury trial 2 April 2013 in superior court. The State's evidence tended to show the following.
Sabrina McMasters, a service manager for Wells Fargo, testified as follows: On 12 May 2011, while taking her daughter to daycare in Trinity, North Carolina, from her home in Greensboro, it began to rain. At approximately 8 a.m., she parked in a small parking lot in front of the building. Because of the rain, she rushed to get her daughter inside of the daycare center which took five to eight minutes.
On her return, the glove box was open and her pocketbook, containing her driver's license, checkbook, social security card, house keys, pictures of her daughter, and a debit card, was missing. McMasters ran into the daycare office and called the police. Approximately ten minutes later, Officer Andrews arrived.
Billy Andrews, a police officer for the City of Archdale, responded to a larceny call at Trendel Children's Center. When he arrived at 8:20 a.m., he saw McMasters standing next to her vehicle, a white Dodge Durango, crying. McMasters told him her pocketbook, containing bank cards, two checkbooks, and three social security cards was stolen.
After this conversation, McMasters called her bank to report her debit card had been stolen. The bank's records showed recent purchases on her card at a gas station, The Pantry, and Food Lion. McMasters drove to The Pantry, where she spoke with the owner, Andrew Lee. After she explained her circumstances, she searched around the store, but she did not find her pocketbook or any of its contents. She then drove to Food Lion, where she walked around the premises to search for her pocketbook. She found nothing.
McMasters told Officer Andrews her debit card was used that morning. The bank reported someone swiped McMasters' debit card at Food Lion at 8:16 a.m. and subsequently at The Pantry around 8:34 a.m. to purchase gas and to make a cash withdrawal. Officer Andrews testified Suzie Sellers, a daycare employee, informed him she saw a white man in his forties that morning sitting across the street from the daycare and smoking a cigarette. No other daycare employees reported any unusual activity at or around the daycare that morning.
Later that afternoon, David Jones, a sergeant in investigations with the City of Archdale, began investigating McMasters' file. His investigation revealed someone swiped McMasters' debit card at a Food Lion at 8:16 a.m. for $114. This Food Lion is located one-half mile from Defendant's home. At 8:34 a.m., the debit card was at The Pantry for $40.01 to buy gasoline. Someone then attempted to use the card inside the store to make a withdrawal from the ATM, but that withdrawal was unsuccessful.
Detective Jones obtained a surveillance video from The Pantry dated 12 May 2011 and played a copy of the video for the jury. The video is not contained in the record on appeal. The next day, Detective Jones went to Defendant's house, and questioned him about these events. Defendant explained he was home alone that day, and had been home alone for two weeks due to a medical issue. Hanging on the banister just inside the front door of Defendant's townhome, Detective Jones saw a green baseball cap. He recognized the cap from the surveillance video from The Pantry. During this discussion, Detective Jones obtained a lottery ticket from the Defendant's person which was purchased at 10 a.m. on 13 May 2011, during the time which Defendant said he did not leave his home. Detective Jones did not attempt to obtain surveillance video from Food Lion because "Food Lion is one of the tougher businesses to get video from and to work with." He said it generally takes six months to one year to obtain video from Food Lion.
Describing the video from The Pantry, Detective Jones explained Defendant placed two fruit drinks on the counter in front of Lee. In the video, Defendant attempted to pay. At that time, Lee and Defendant discussed tornado damage in Alabama and scratch off tickets. Defendant asked for a $100 gift card, but Lee refused because he would only accept cash. Lee told Defendant he needed to use the ATM. At that time, the time stamp on the video showed it was 8:34 a.m. Defendant walked away from the counter and out of the screen, presumably toward the ATM. Defendant left the store without returning to the counter to make a purchase.
The State rested. At that time, Defendant moved to dismiss all charges because the State failed to meet its burden. The court denied Defendant's motion.
Defendant testified on his own behalf. Defendant works part-time at Kohl's and Bitlocks and is a pastor at the Second Chance Community Mission. Defendant had prostate surgery
27 April 2011, and returned to the doctor to have his staples removed 4 May 2011.
Defendant went to The Pantry on the morning of 12 May 2011, shortly after his wife left for work. Defendant missed Mother's Day because of his surgery, so he went to The Pantry to get his wife a gift card as well as a drink and a newspaper for himself. At the register, Defendant spoke with Lee, who he knows personally. Defendant goes to The Pantry every Thursday or Friday to cash his check. When Lee told him he could not purchase a gift card unless he paid with cash, Defendant left the store through the back door near the drink machine. Defendant drove home and remained at home for the rest of the day. On cross-examination, Defendant agreed he misled the police by telling them he did not leave his house that day. The defense rested.
Lee, the owner of The Pantry, testified for the State in rebuttal. Lee remembered Defendant coming into his store on 12 May 2011. He remembers Defendant attempting to use someone else's card that day, but the transaction was denied. Lee knows Defendant, whose first name is Kelvin. The name on the card was not Kelvin, but he does not remember the name on the card.
The Defendant renewed his motion to dismiss at the close of all of the evidence. The trial court granted Defendant's motion as to breaking and entering a motor vehicle, but denied the motion as to possession of stolen goods and financial card theft. The jury returned guilty verdicts for financial card theft and misdemeanor possession of stolen goods.
Subsequently, the trial court dismissed the jury. The court stated:
Defendant's trial attorney, Biggs, accepted the plea on behalf of Defendant. Then, the following exchange occurred:
Defendant stipulated there was a factual basis for the plea. Judge L. Todd Burke entered judgment against Defendant on 2 April 2013, sentencing him to 76 to 104 months imprisonment. The same day, Judge V. Bradford Long entered a corrected judgment against Defendant, correcting the maximum sentence to 101 months. Defendant asked for an appellate defender, but did not file a timely written notice of appeal.
Defendant filed a pro se handwritten petition for writ of certiorari...
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