State v. West, No. COA06-205.

• Docket Nº: No. COA06-205.
• Citation: 638 S.E.2d 508
• Case Date: December 19, 2006
• Court: Court of Appeal of North Carolina (US)

638 S.E.2d 508 STATE of North Carolina
v.
James Franklin WEST. No. COA06-205. Court of Appeals of North Carolina. December 19, 2006.

Page 509

Appeal by defendant from judgment entered 15 September 2005 by Judge James F. Ammons in Cumberland County Superior Court. Heard in the Court of Appeals 30 October 2006.

Attorney General Roy Cooper, by Assistant Attorney General Richard J. Votta, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.

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

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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

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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...