State v. Wright
| Decision Date | 18 August 2020 |
| Docket Number | No. COA19-863,COA19-863 |
| Parties | STATE of North Carolina v. Michael Eugene WRIGHT, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly Randolph, for the State.
Mary McCullers Reece, Smithfield, for defendant-appellant.
Where the State presented sufficient evidence to permit the jury to determine the value of stolen goods, the trial court did not err in denying defendant's motion to dismiss. Where the jury did not consider alternative theories of guilt not permitted by the indictment, defendant cannot show prejudice, and the trial court did not commit plain error in its jury instruction. Where the trial court sentenced defendant on both the charges of felonious larceny and felonious possession of the goods stolen during the larceny, the trial court erred. We vacate the judgment and remand for arrest of one conviction and resentencing.
In December of 2017, Jeff Crotts, owner of Knob Creek Orchards, discovered that a 120-gallon propane tank was missing from his property, and reported it to the sheriff's office. On 25 January 2018, Amy Lail, a sergeant with the Cleveland County Sheriff's Office (Sgt. Lail), received information that the missing tank was located on the property of Peggy Hudson Canipe (Canipe), fiancée of Michael Wright (defendant), and that defendant was a suspect in the theft. Shortly after Sgt. Lail arrived on Canipe's property, defendant himself arrived. Sgt. Lail informed defendant that the tank was stolen, and defendant responded that he had purchased it "many miles" away, and claimed he was able to load the tank into the back of his Chevy Blazer, which Sgt. Lail found "absurd." Sgt. Lail also noted that the tank had been spray-painted, and that the same paint color had been used "in other locations around the house[.]" Nelson Speagle (Speagle), a propane manager with Carolina Energies who serviced the propane tanks at Knob Creek Orchards, was able to identify this tank as the stolen tank by its serial number, and testified that it was valued at "roughly $1,330[.]"
The Cleveland County Grand Jury indicted defendant for felonious larceny and felonious possession of stolen goods, namely a "240lb propane tank" worth $2,000. At the close of the State's evidence, the State moved to amend the indictment to remove the size of the propane tank, and indicate that the value of the propane tank was in excess of $1,000. Defendant did not object, and the trial court allowed the motion. At the close of all the evidence, defendant moved to dismiss based upon insufficient evidence. The trial court denied this motion.
The jury returned verdicts finding defendant guilty of felonious larceny and felonious possession of stolen goods. The trial court consolidated the charges for judgment, and sentenced defendant to a minimum of 20 months and a maximum of 36 months in the custody of the North Carolina Department of Adult Correction.
Defendant appeals.
In his first argument, defendant contends that the trial court erred in denying his motion to dismiss. We disagree.
"This Court reviews the trial court's denial of a motion to dismiss de novo ." State v. Smith , 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). " " State v. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) ), cert. denied , 531 U.S. 890, 121 S.Ct. 213, 148 L. Ed. 2d 150 (2000).
"In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose , 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied , 515 U.S. 1135, 115 S.Ct. 2565, 132 L. Ed. 2d 818 (1995).
The charges of both felonious larceny and felonious possession of stolen goods require, as an essential element of the charge, that the value of the stolen property exceed $1,000. N.C. Gen. Stat. § 14-72(a) (2019). On appeal, however, defendant contends that there was insufficient evidence before the trial court that the stolen tank was worth more than $1,000.
In support of his argument, defendant notes that, when asked to value the tank, Speagle stated that enough propane to fill the tank would be worth $300, and that the two regulators that accompany the tank would be worth $90 each. Combining the costs of the regulators, the fuel, and the tank, Speagle determined that the total value was "probably at $1,300, 1,330-something." However, defendant further notes that, when asked how much fuel was left in the tank, Speagle responded that he didn't "have a clue how much." Moreover, defendant was indicted for stealing a propane tank, not for stealing a propane tank and two regulators. Defendant argues that, removing the $300 for the cost of fuel, plus $180 for the two regulators, Speagle's valuation of roughly $1,300 drops below the $1,000 threshold necessary for a felony charge. As a result, defendant contends that this testimony was insufficient to support convictions for either felonious larceny or felonious possession of stolen goods.
However, the State "is not required to produce ‘direct evidence of ... value’ to support the conclusion that the stolen property was worth over $1,000.00, provided that the jury is not left to ‘speculate as to the value’ of the item." State v. Davis , 198 N.C. App. 146, 151-52, 678 S.E.2d 709, 714 (2009) (quoting State v. Holland , 318 N.C. 602, 610, 350 S.E.2d 56, 61 (1986), overruled on other grounds , State v. Childress , 321 N.C. 226, 362 S.E.2d 263 (1987) ). Rather, the State is merely required to present some competent evidence of the fair market value of the stolen property, which the jury may then consider.
In Davis , the State presented evidence that a stolen Panasonic DVD player had been purchased for over $1,300, that it was in substantially the same condition as when purchased, and that the only Panasonic dealer in the area marketed the same DVD player for over $1,300. This Court held that, viewed in the light most favorable to the State, the reasonable selling price of the DVD player, at the time and place of the theft and in the condition in which it was when stolen – the measure of fair market value – was over $1,300. Id . at 152, 678 S.E.2d at 714. The defendant argued that the DVD player could not be worth over $1,000 because it was not functional without its electronic brain, but this Court held that argument failed, noting that "[t]he State did not have to prove that a DVD player without its brain was worth over $1,000.00, as long as the State provided some evidentiary basis that placed the jury's determination of its value beyond ‘speculat[ion].’ " Davis , 198 N.C. App. at 152, 678 S.E.2d at 714 (quoting Holland , 318 N.C. at 610, 350 S.E.2d at 61 ). We held that the issue of whether the DVD player, without its brain module, was nonetheless worth $1,000 was "properly before the jury for resolution." Id . at 153, 678 S.E.2d at 714 ; see also State v. Olson , 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) ().
In the instant case, the State presented evidence, namely the testimony of Speagle, that the stolen propane tank was worth $1,300, more than the requisite $1,000 threshold. Whether the absence of fuel or regulators put that valuation below the $1,000 threshold was a question "properly before the jury for resolution," and did not warrant dismissal. In viewing the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, the State presented sufficient evidence of the value of the propane tank to take the issue beyond "speculation" and permit its consideration by the jury. Accordingly, we hold that the trial court did not err in denying defendant's motion to dismiss.
In his second argument, defendant contends that the trial court committed plain error in its jury instructions. We disagree.
"In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C.R. App. P. 10(a)(4) ; see also State v. Goss , 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied , 555 U.S. 835, 129 S.Ct. 59, 172 L. Ed. 2d 58 (2008).
"Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan , 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
The trial court, in its jury instructions, informed the jury that it could find defendant guilty of felonious larceny if it found that defendant "took and carried away another person's property[,]" and that said property "was worth more than $1,000[.]" This instruction was lifted verbatim from the North Carolina Pattern Jury Instructions, N.C.P.I.-Crim 216.10, with the consent of the parties. On appeal, defendant contends that this instruction improperly permitted the jury to find defendant guilty under an alternate theory not charged in the indictment. Because defendant failed to object to this instruction at trial, we review this argument for plain...
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