State v. Webb ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-612
Filed: 6 March 2018
New Hanover County, No. 15 CRS 60753
STATE OF NORTH CAROLINA
v.
MAURICE JASON WEBB, Defendant.
Appeal by Defendant from judgments entered 25 January 2017 by Judge Ebern
T. Watson III in New Hanover County Superior Court. Heard in the Court of Appeals
13 November 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly
Randolph, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
Gomez, for defendant-appellant.
MURPHY, Judge.
The issue underlying Maurice Jason Webb-Sholar’s1 (Defendant) arguments
on appeal is whether the State put forth sufficient substantial evidence that he
personally committed the crimes appealed herein. For the reasons that follow, we
hold that this case is analogous to State v. Ethridge, 168 N.C. App. 359, 607 S.E.2d
325 (2005), and, thus, there was sufficient evidence that Defendant perpetrated the
1Defendant is sometimes referred to as “Maurice Sholar,” “Maurice Webb-Sholar,” or “Maurice
Webb-Scholar” in various court documents. On the Judgments, Defendant’s name appears as “Maurice
Jason Webb.”
STATE V. WEBB
Opinion of the Court
crimes to support a jury finding, of each essential element of the offense charged, and
of Defendant being the perpetrator of each offense.
Defendant argues that: (1) there was insufficient evidence that Defendant
personally committed the offenses of felony breaking or entering, felony larceny, and
misdemeanor injury to real property, and, thus, it was error for the trial court to deny
Defendant’s motion to dismiss; and (2) as a result of this error, the trial court plainly
erred in its jury instructions on felonious larceny. We disagree, and analyze each
argument in turn.
Background
During Fall 2015, Defendant introduced himself to Lasonia Melvin as “Jason
Young.” The two dated “casually” for about one month. Defendant visited her
apartment several times throughout the relationship, which was located on the
ground floor of an apartment complex in Wilmington.
Defendant asked Melvin about her plans for Thanksgiving. Melvin told
Defendant that she and her daughter were traveling out of town. When Defendant
asked to accompany Melvin on this trip, she declined. Shortly thereafter, Melvin
ended the relationship because Defendant was always asking for money, although
Defendant told Melvin he had a job.
The day before Thanksgiving, Melvin and her daughter left her apartment at
approximately 5:00 p.m. for their trip out of town. Melvin locked the apartment door
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Opinion of the Court
when she left, and asked a neighbor, Henrietta McKoy, to watch her apartment.
McKoy lived across the parking lot from Melvin. Between 10:00 p.m. and 11:00 p.m.,
McKoy saw a dark blue or black vehicle backed into the parking space where Melvin
parks. At the time, McKoy thought the car belonged to Melvin. McKoy went outside
a second time, approximately 30 minutes after first seeing the vehicle, and the vehicle
was still parked in the same space.
Around the same time, another neighbor, Matthew Lofty (Lofty), sat outside
on his porch, directly above Melvin’s apartment. Throughout the night, Lofty saw a
four-door, dark blue Hyundai parked and backed into Melvin’s parking spot, with the
trunk facing Melvin’s apartment. Lofty saw Defendant and another unidentified
male near Melvin’s apartment. Lofty observed Defendant twice that evening: first
standing in the parking lot, and second, standing directly in front of Melvin’s
apartment door. Lofty also noted he saw the unidentified male in the area each time
he looked down from the porch. Lofty told police that he saw the unidentified male
and Defendant going in and out of the apartment.2 Lofty also stated that, sometime
during the night, he saw a flat screen television in the open trunk of the dark blue
Hyundai.
2 At trial, Officer Carly Tate testified about Lofty’s statement without objection. We note that
Lofty’s statement to police is inconsistent with his trial testimony. At one point in his testimony, Lofty
stated that he saw Defendant standing outside and the unidentified male going in and out of the
apartment. Later in his testimony, Lofty stated he did not see anyone going back and forth from the
apartment.
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Opinion of the Court
Heather Wilson (Wilson), who lived with Lofty, exchanged brief pleasantries
with Defendant as she smoked on the upstairs porch. Wilson thought Defendant
seemed nervous during this exchange. Wilson claimed the sunroof and trunk were
open on the vehicle, and that she saw “stuff” in the trunk on at least one occasion.
Over the course of roughly three hours, Lofty observed Defendant and the
unidentified male went to and from Melvin’s residence four to five times in the dark
blue Hyundai. During one of these visits, as Lofty and Wilson watched, Defendant
noticed he was being observed, appeared “startled,” slammed the trunk closed,
entered the passenger side of the vehicle, and slowly pulled out of the parking lot.
Both Lofty and Wilson heard a lot of noise throughout the night and would look
outside, but could not identify its source.
The next day Wilson and Lofty noticed the door to Melvin’s apartment was
open, and alerted McKoy, who called the police. When Officer Carly Tate of the
Wilmington Police Department arrived on scene, she noticed Melvin’s door frame was
broken and appeared to have been pried open. Officer Tate entered the apartment
and noticed several items were missing or had been “disturbed.” Melvin later
determined that three TVs (one of which was an older, 55-inch model), a sapphire
diamond bracelet, a microwave, two laptops (including her work laptop), an Amazon
Fire Stick, several DVDs, and $900 dollars in cash were missing. Melvin’s insurance
company valued her stolen items at approximately $4,000, and paid her roughly
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Opinion of the Court
$3,000 after a $1,000 deductible. Sometime later Wilson picked Defendant out of a
photo lineup, and Lofty also identified Defendant as the perpetrator.
During the trial, Defendant made a motion to dismiss at the close of the State’s
evidence, and renewed his motion to dismiss at the close of all evidence. The trial
court denied both motions. The trial court instructed the jury on the charges of felony
breaking or entering, felony larceny, and misdemeanor injury to real property. The
jury subsequently returned a verdict of guilty on all counts. The trial court entered
judgments upon the verdicts and sentenced Defendant to 11 to 23 months of
imprisonment for each felony conviction, consolidated; and a consecutive term of 120
days imprisonment for the injury to real property conviction. Defendant timely
appealed in open court.
Analysis
Defendant presented two arguments on appeal: (1) there was insufficient
evidence that Defendant personally committed the offenses of felony breaking or
entering, felony larceny, and misdemeanor injury to real property, and, thus, it was
error for the trial court to deny Defendant’s motion to dismiss; and (2) as a result of
this error, the trial court plainly erred in its jury instructions on felonious larceny.
We disagree and hold that Defendant received a fair trial, free from error.
A. Motions to Dismiss
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Opinion of the Court
Defendant argues the State presented insufficient evidence he personally
broke into or entered Melvin’s apartment, personally committed larceny, or
personally injured the apartment door.
We review the denial of a motion to dismiss for insufficient evidence de novo.
State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).
Evidence is sufficient to sustain a conviction when, viewed
in the light most favorable to the State and giving the State
every reasonable inference therefrom, there is substantial
evidence to support a jury finding, of each essential
element of the offense charged, and of defendant’s being
the perpetrator of such offense.
Id. at 523, 644 S.E.2d at 621 (citations, quotation marks, and alterations omitted).
“Upon defendant’s motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant’s being the perpetrator of
such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (2000) (citation omitted). “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, 132 L. Ed. 2d
818 (1995).
Circumstantial evidence may withstand a motion to
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Opinion of the Court
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant’s
guilt may be drawn from the circumstances. Once the court
decides that a reasonable inference of defendant’s guilt
may be drawn from the circumstances, then it is for the
jury to decide whether the facts, taken singly or in
combination, satisfy it beyond a reasonable doubt that the
defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (quotation marks, citations, brackets, and
emphasis omitted).
Here, at the State’s request, the trial court did not instruct the jury on acting
in concert or aiding and abetting. Thus, in order for the jury to find Defendant guilty
of felony breaking and entering, felony larceny, and misdemeanor injury to real
property, “the State was required to prove that defendant committed the offenses
himself.” State v. Haymond, 203 N.C. App. 151, 168, 691 S.E.2d 108, 122 (2010); see
also State v. McCoy, 79 N.C. App. 273, 274, 339 S.E.2d 419, 420 (1986) (“The court
failed to instruct on acting in concert. Accordingly, defendant’s conviction may be
upheld only if the evidence supports a finding that he personally committed each
element of the offense.”).3
3 We note the logical inconsistency in conducting a de novo review of a motion to dismiss raised
during trial retroactively through a filter of the ultimate jury instructions. However, this is the
standard that we adopted in our prior published opinions and we are bound to follow this retroactive
analysis of a defendant’s motion to dismiss. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30,
37 (1989) (“[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same
court addressing the same question, but in a different case, unless overturned by an intervening
decision from a higher court.”).
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Opinion of the Court
The jury convicted Defendant of felonious breaking or entering, felonious
larceny, and injury to real property. The elements of felonious breaking or entering
are: “(1) the breaking or entering (2) of any building (3) with the intent to commit any
felony or larceny therein.” State v. Litchford, 78 N.C. App. 722, 725, 338 S.E.2d 575,
577 (1986); see also N.C.G.S. § 14-54(a) (2017). For larceny, the State must prove
Defendant: “(1) took the property of another; (2) carried it away; (3) without the
owner’s consent; and (4) with the intent to deprive the owner of his property
permanently.” State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982); see also
N.C.G.S. § 14-72 (2017). The State charged Defendant with felonious larceny,
alleging he took property worth more than $1,000 or acted pursuant to a breaking or
entering. See N.C.G.S. § 14-72(a), (b)(2). It is a misdemeanor to “willfully and
wantonly damage, injure or destroy any real property whatsoever, either of a public
or private nature[.]” N.C.G.S. § 14-127 (2017).
Defendant cites to State v. Cunningham, 140 N.C. App. 315, 536 S.E.2d 341(2000), in support of his argument. In Cunningham, the defendant was convicted of
first-degree burglary. Id. at 320, 536 S.E.2d at 345. On appeal, Cunningham argued
the State failed to present sufficient evidence to support the charge. Id. at 320, 536
S.E.2d at 346. The trial court did not instruct the jury as to acting in concert, and,
thus, we reviewed for sufficient evidence that Cunningham personally committed the
crime. Id. at 321-22, 536 S.E.2d at 345.
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When reviewing the evidence in Cunningham, we noted, “[t]he only evidence
with regard to the alleged burglary came from two sources: (1) defendant’s own
confession . . . and (2) the testimony of Sherry Atwell, the owner of the house and
daughter of the victim[.]” Id. at 322, 536 S.E.2d at 346. In Cunningham’s confession,
he did not admit “he broke down or otherwise opened any of the exterior or interior
doors.” Id. at 322, 536 S.E.2d at 347. Indeed, the confession stated another person
with Cunningham kicked the door and opened it. Id. at 322, 536 S.E.2d at 346. The
State asked us to accept certain portions of Cunningham’s confession—that he
carried a shotgun—and reject the portions of his confession implicating another for
the breaking. Id. at 322, 536 S.E.2d at 347. The State also pointed to Atwell’s
testimony, but her testimony only supported constructive breaking, a theory upon
which the jury was not instructed. Id. at 324, 536 S.E.2d at 347-48. Accordingly, we
held that the State failed to present sufficient evidence of a “breaking” and vacated
Cunningham’s conviction. Id. at 321-22, 324, 536 S.E.2d at 345, 347-48.
In contrast, the State argues that the instant case is more analogous to
Ethridge, 168 N.C. App. 359, 607 S.E.2d 325. In Ethridge, the defendant argued the
trial court erred by denying his motion to dismiss a number of charges. Id. at 362,
607 S.E.2d at 327. Ethridge alleged “the evidence was insufficient to prove [he] was
the perpetrator.” Id. We disagreed and pointed to the following evidence:
A vehicle registered to [Ethridge] and identified by others
as belonging to [Ethridge], was seen at the crime scene.
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The vehicle, with its tailgate open, was pulled up to the
door of the house. A coffee table was seen in the car.
[Ethridge] was placed . . . next door to the crime scene on
the day the offenses occurred.
Id.Here, Melvin was not at her apartment the day of the robbery. A neighbor,
McKoy, saw a vehicle backed up to the victim’s patio door. Neighbors told Officer
Tate they saw two males “going in and out of the apartment” while outside smoking.
One of the men, Defendant, was recognized by neighbors because of his relationship
to Melvin. When one of the neighbors, Wilson, spoke to Defendant, he seemed
“startled and anxious.” Melvin told the officer that only three people knew she was
going to be out of town—one of whom was Defendant.
Lofty saw Defendant and another male in the following places: by the victim’s
apartment, on the front porch, right in front of the apartment door, and then in the
parking lot, next to a vehicle. The vehicle “kept coming and going.” At one point,
Lofty saw Defendant in the driver’s side of the vehicle. Defendant “got startled[,]”
the two slammed the trunk, and then they left. At some point, Lofty saw a television
in the trunk. Lofty saw the other male “standing there” and Defendant would be
“gone” at some points. That night, Lofty also heard a lot of noise (“banging on the
walls”). The next morning, Lofty’s daughter noticed the victim’s apartment door was
open and crime scene investigators confirmed that the door had been pried open.
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Wilson also testified that she saw Defendant and another man parked with a
car backed up to the victim’s door. She saw “stuff” in the trunk of the car. She
testified: “It caught them off guard when we walked out on the porch and they closed
the trunk very, very fast. The sunroof was open, [Defendant] was in the driver’s seat,
the other guy was in the passenger and they took off and went down the road.” Wilson
saw the vehicle come and go at least four, and maybe five, times.
When the victim called Defendant to ask about that night, he told her he was
out of town—a fact contradicted by the several witnesses’ testimonies. When Melvin
returned home, her 55-inch television was missing—a television so big she said it
would take more than one person to carry out.
We conclude there was sufficient evidence Defendant was the perpetrator of
the crimes and individually committed the crimes. The case sub judice more closely
aligns with Ethridge than with Cunningham. Witnesses saw Defendant driving a car
that came to the victim’s apartment at least four times. At times, Defendant was
standing by the car, and at other times, witnesses did not see Defendant. Defendant
did not have permission to be there. A witness saw a television in the trunk of the
car Defendant drove. Televisions were stolen from the victim’s apartment. When
spoken to, Defendant acted “startled[,]” slammed the trunk, which contained the
television, and drove away. Considering the evidence in the light most favorable to
the State and giving the State the benefit of every reasonable inference, there is
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sufficient evidence that Defendant perpetrated the crimes. As such, we hold the trial
court did not err in denying Defendant’s motions to dismiss.
B. Jury Instructions
Next, Defendant argues the trial court plainly erred in its jury instructions on
felonious larceny.
“[A]n issue that was not preserved by objection noted at trial . . . may be made
the basis of an issue presented on appeal when the judicial action question is
specifically and distinctly contended to amount to plain error.” N.C. R. App. P.
10(a)(4) (2017). “[T]he plain error standard of review applies on appeal to
unpreserved instructional or evidentiary error.” State v. Lawrence, 365 N.C. 506,
518, 723 S.E.2d 326, 334 (2012). Plain error exists when: (1) there is an error; (2)
that is plain; (3) that affects a substantial right; (4) that must seriously affect the
fairness, integrity or public reputation of judicial proceedings. Id. at 515-16, 723
S.E.2d at 332-33. “[P]lain error review should be used sparingly, only in exceptional
circumstances, to reverse criminal convictions on the basis of unpreserved error[.]”
Id. at 517, 723 S.E.2d at 333.
As discussed supra, Defendant argues the State presented insufficient
evidence that he personally took property worth over $1,000. However, we find that
the State produced sufficient evidence Defendant personally committed these crimes,
and that he took property in excess of $1,000. As the trial court did not err in its jury
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Opinion of the Court
instructions on felonious larceny, we need not review whether the alleged error
amounted to plain error.
Conclusion
Defendant received a fair trial, free of prejudicial error.
NO ERROR.
Chief Judge McGEE and Judge ELMORE concur.
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