State v. West

Decision Date19 December 2006
Docket NumberNo. COA06-205.,COA06-205.
Citation638 S.E.2d 508
PartiesSTATE of North Carolina v. James Franklin WEST.
CourtNorth Carolina Court of Appeals

MARTIN, Chief Judge.

Defendant appeals from a judgment entered upon his conviction by a jury of second degree murder, two counts of felony larceny and one count of breaking and entering an automobile. At trial, the State put forth evidence to show that on 19 December 2003, defendant was living with Brooks Bullard, his supervisor at work. On the morning of 19 December 2003, Bullard went outside and found his 1999 Pontiac automobile missing from his driveway. The screen covering defendant's window was off and defendant was gone. Bullard soon discovered that a shotgun he owned was missing from a pick-up truck also parked in the driveway.

Sometime around 12:40 and 1:00 p.m. of the same day, Russ Hammonds, the sole occupant of a Colonial Realty office building, was shot and killed. While investigating, officers came across defendant in his mother's house next door to the crime scene. Officer Donald McLamb testified that defendant admitted entering the office and shooting the victim. Defendant told police that he stole the car and the shotgun from Bullard and drove to the apartment complex across the street from his mother's house. He hid in the woods surrounding the apartment complex until morning. Before his mother left for work, defendant walked to her house and spoke with her. After she left, defendant brought the shotgun inside and hid it under the couch. Defendant later walked to the building next door, entered without knocking and shot the victim. Following the shooting, defendant returned to his mother's home and watched television. Defendant told the officers that he did not know the victim or why he had shot him.

Defendant's motion to dismiss the charges at the close of the State's evidence was denied. Defendant then offered evidence tending to show that while growing up, defendant struggled in school, was exposed to alcohol, drugs and pornography at an early age and was verbally and physically abused by his parents as well as others. Dr. Claudia Coleman, a psychologist, testified that defendant suffered from mild depression, functioned at a low intelligence level and evinced behavior indicative of borderline personality disorder. Dr. Coleman opined that, as a result of defendant's conditions, stressful situations were likely to break him down cognitively. Defendant's renewed motion to dismiss at the close of all the evidence was also denied.

I.

Defendant contends the trial court erred in failing to dismiss or arrest judgment in one of the two counts of felony larceny. We disagree.

"When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied." State v. Bellamy, 172 N.C.App. 649, 656, 617 S.E.2d 81, 87 (2005) (quoting State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982)). "Substantial evidence is relevant evidences that a reasonable mind might accept as adequate to support a conclusion." State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). In ruling on a motion to dismiss, the court must view the evidence in a light most favorable to the State. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). "The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both." State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000) (citations omitted).

In the present case, defendant was convicted of larceny of a firearm with respect to the shotgun stolen from Bullard's employer's truck, pursuant to N.C.G.S. § 14-72(b)(4), as well as larceny of Bullard's Pontiac automobile, pursuant to N.C.G.S. § 14-72(a). Defendant argues that the two felony larceny charges were all part of the same transaction and therefore constituted a single offense. "A single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place." State v. Froneberger, 81 N.C.App. 398, 401, 344 S.E.2d 344, 347 (1986). When a firearm is stolen, a defendant may not be charged with both felonious larceny of a firearm and felonious larceny of property including that same firearm. State v. Adams, 331 N.C. 317, 333, 416 S.E.2d 380, 389 (1992).

This case, however, involved the application of two distinct statutory provisions with each larceny charge predicated on separate and unrelated property. See State v. Barton, 335 N.C. 741, 746, 441 S.E.2d 306, 309 (1994) (finding two separate takings where a wallet and automobile were stolen, forming the basis for a robbery charge, and a firearm was later taken after it was discovered in the automobile, forming the basis for a larceny charge). At trial, the State put forth substantial evidence showing two separate acts of larceny. First, defendant entered a truck used by Bullard and owned by defendant's employer and stole Bullard's shotgun that was locked behind the truck's seats. Defendant stole the shotgun to use as an outlet for his anger when he shot and killed a stranger. After stealing the shotgun, defendant then entered and stole the Pontiac automobile. Defendant left the scene using the automobile and traveled to his mother's house.

The distinct nature of the items and their respective charges were reenforced to the jury by the trial judge during jury instructions. As to the first count of felonious larceny, the trial judge's instructions referenced only the firearm. For the second count of felonious larceny, the trial judge explicitly indicated this count was "in regard to the 1999 Pontiac Grand Prix." Further, the different purpose for which the shotgun and automobile were used suggests that each taking was motivated by a unique criminal impulse or intent and constitutes multiple takings. State v. Weaver, 104 N.C. 758, 760, 10 S.E. 486, 487 (1889) (indicating that "[w]hen several articles are taken at one time, and the transaction is set in motion by a single impulse, and operated upon by a single unintermittent force, it forms a continuous act, and hence must be treated as one larceny[.]")

This case can be distinguished from State v. Marr, 342 N.C. 607, 467 S.E.2d 236 (1996), relied upon by defendant, where charges for individual items stolen in a single criminal incident were overturned. In Marr, there was evidence that two buildings were entered, tools and other items were stolen from both buildings and two vehicles were taken. Id. at 610, 467 S.E.2d at 237. Each item was taken with the single objective of stealing the victim's tools for defendant's use and for resale. Id. The perpetrators in Marr did not have the unique criminal impulse or intent motivating multiple takings as suggested by the current case's evidence.

The State has presented substantial evidence of two separate takings to support two felony larceny convictions. Accordingly, defendant's motion to dismiss was properly denied and both charges of felonious larceny were properly submitted to the jury.

II.

Defendant next argues that the trial court erred in its refusal to instruct the jury on voluntary manslaughter. "A defendant is entitled to have a lesser included offense submitted to the jury only when there is evidence to support that lesser included offense." State v. Smith, 351 N.C. 251, 267, 524 S.E.2d 28, 40 (2000). If the State presents sufficient evidence "to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements other than defendant's denial that he committed the offense, defendant is not entitled to an instruction on the lesser offense." Id. at 267-68, 524 S.E.2d at 40.

The elements of second degree murder are that defendant unlawfully kill another person with malice and that the killing occur without premeditation and deliberation. State v. Norris, 303 N.C. 526, 529, 279 S.E.2d 570, 572 (1981). Voluntary manslaughter is an intentional killing without malice committed either in the heat of passion or through imperfect self-defense resulting in excessive force. State v. Lyons, 340 N.C. 646, 663, 459 S.E.2d 770, 779 (1995). The malice at issue, on ...

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