State v. Greene , 251 N.C. App. 627 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1060
Filed: 17 January 2017
Onslow County, No. 13 CRS052870, 053006-07
STATE OF NORTH CAROLINA
v.
KRYSTEN S. GREENE, Defendant.
Appeal by defendant from judgments entered on 4, 6 and 13 May 2015 by Judge
John E. Nobles, Jr. in Superior Court, Onslow County. Heard in the Court of Appeals
22 February 2016.
Attorney General Josh Stein, by Special Deputy Attorney General I.
Faison Hicks, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
STROUD, Judge.
Defendant appeals from several convictions for theft-related offenses. We
vacate defendant’s convictions for larceny from the person because the evidence does
not establish the necessary elements to sustain a conviction of larceny from the
person and remand for judgment to be entered on the lesser-included offense of
misdemeanor larceny and any resentencing if necessary due to two of defendant’s
multiple convictions being vacated. We find no error as to defendant’s remaining
convictions.
STATE V. GREENE
Opinion of the Court
I. Background
The State’s evidence tended to show in November 2012, Ms. Ramona Tongdee
was at the hospital with her grandmother because her grandfather was hospitalized
for a stroke. Ms. Tongdee and her grandmother were in a waiting room furnished
with couches, recliners, and chairs. Ms. Tongdee fell asleep on a couch and when she
awoke her “purse was on the floor. Rather than kind of tucked away, it was on the
floor with things spilled out of it[.]” Ms. Tongdee’s grandmother’s purse “was on the
couch, in the same manner.” Ms. Tongdee was missing her pink .40 caliber
semiautomatic pistol and her grandmother was missing $75.00.
The hospital had security video cameras in this area and the security footage
showed a man “going through Ms. Tongdee’s purse, as well as other family members’
property, while they were asleep in the room. Altogether, the time frame spanned
about 11 minutes, while the male was going through the their [(sic)] property while
they slept.” Later, in a field near a residence, officers discovered a pink pistol. Mr.
Julian Spencer later arrived at the residence and told the officers he was there to get
a dog from inside the residence, but he did not have a key. Mr. Spencer then admitted
that he was working with defendant.
In April of 2013, Ms. Marcia Humphrey returned to her home and discovered
that thousands of dollars of cash and old coins, including an 1857 quarter, were
missing from her home. Defendant’s fingerprint was found in Ms. Humphrey’s home,
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Opinion of the Court
although Ms. Humphrey did not know him or give him permission to be in her home.
Thereafter, defendant’s girlfriend pawned Ms. Humphrey’s 1857 quarter.
In April of 2014, defendant was indicted for several crimes. Ultimately, the
jury convicted him of felonious breaking and/or entering, felonious larceny after
breaking and/or entering, felonious possession of stolen goods/property, larceny of a
firearm, possession of a stolen firearm, two counts of larceny from the person,
felonious possession of stolen goods/property, feloniously conspiring to possess stolen
goods/property, and possession of a firearm by felon. In February of 2015, defendant
“admitted habitual felon status.” (Original in all caps.) The trial court entered
judgments, and defendant appeals.
II. Motion to Dismiss
Defendant contends that two of his motions to dismiss should have been
allowed.
The standard of review for a motion to dismiss is
well known. A defendant’s motion to dismiss should be
denied if there is substantial evidence of: (1) each essential
element of the offense charged, and (2) of defendant’s being
the perpetrator of the charged offense. Substantial
evidence is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. The Court must
consider the evidence in the light most favorable to the
State and the State is entitled to every reasonable
inference to be drawn from that evidence.
State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and
quotation marks omitted).
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Opinion of the Court
A. Larceny from the Person
Defendant first contends that the trial court erred in failing to dismiss the
charge of larceny from the person from Ms. Tongdee and her grandmother due to
insufficiency of the evidence.
The essential elements of larceny are: (1) taking the
property of another; (2) carrying it away; (3) without the
owner’s consent; and (4) with intent to permanently
deprive the owner of the property. It is larceny from the
person if the property is taken from the victim’s person or
within the victim’s protection and presence at the time of the
taking.
State v. Hull, 236 N.C. App. 415, 418, 762 S.E.2d 915, 918 (2014) (emphasis added)
(citations and quotation marks omitted). Our Supreme Court has explained that the
definition of a taking “from the person” was established by the common law:
This Court recently addressed the crime of larceny
from the person in State v. Buckom, 328 N.C. 313, 401
S.E.2d 362 (1991). We noted that because the North
Carolina General Statutes do not define the phrase “from
the person” as it relates to larceny, the common law
definition controls. We quoted with approval from the
common law description of “from the person”:
Property is stolen “from the person,” if it was
under the protection of the person at the time.
Property attached to the person is under the
protection of the person even while he is
asleep. And the word “attached” is not to be
given a narrow construction in this regard. It
will include property which is being held in
the hand, or an earring affixed to the ear, or a
chain around the neck, or anything in the
pockets of clothing actually on the person’s
body at the moment. Moreover, property may
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STATE V. GREENE
Opinion of the Court
be under the protection of the person although
not actually “attached” to him. Thus if a man
carrying a heavy suitcase sets it down for a
moment to rest, and remains right there to
guard it, the suitcase remains under the
protection of his person. And if a jeweler
removes several diamonds and places them on
the counter for the inspection of a customer,
under the jeweler’s eye, the diamonds are
under the protection of the person. On the
other hand, one who is asleep is not actually
protecting property merely because it is in his
presence. Taking property belonging to a
sleeping person, and in his presence at the
time, is not larceny from the person unless the
thing was attached to him, in the pocket of
clothing being worn by him, or controlled by
him at the time in some equivalent manner.
The crime of larceny from the person is regularly
understood to include the taking of property “from one’s
presence and control.” Thus, for larceny to be “from the
person,” the property stolen must be in the immediate
presence of and under the protection or control of the victim
at the time the property is taken.
State v. Barnes, 345 N.C. 146, 148–49, 478 S.E.2d 188, 190 (1996) (citations omitted).
State v. Buckom clarifies,
At common law, Larciny [sic] from the person is
either by privately stealing; or by open and violent assault,
which is usually called robbery. Open and violent larciny
[sic] from the person, or robbery is the felonious and
forcible taking from the person of another, of goods or
money to any value by violence or putting him in fear. The
difference between the two forms of larceny referred to by
Blackstone is that robbery, even in its least aggravated
form, is an open and violent larciny [sic] from the person,
or the felonious taking, from the person [of,] or in the
presence of[,] another, of goods or money against his will
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Opinion of the Court
by violence or by putting him in fear, whereas stealing from
the person is a concealed, clandestine activity. At common
law, larceny from the person differs from robbery in that
larceny from the person lacks the requirement that the
victim be put in fear. Larceny from the person forms a
middle ground in the common law between the private
stealing most commonly associated with larceny, and the
taking by force and violence commonly associated with
robbery.
328 N.C. 313, 317, 401 S.E.2d 362, 364–65 (1991) (citations, quotation marks, and
ellipses omitted).
Defendant argues that our Supreme Court clarified in State v. Barnes that
“[t]aking property belonging to a sleeping person, and in his presence at the time, is
not larceny from the person unless the thing was attached to him, in the pocket of
clothing being worn by him, or controlled by him at the time in some equivalent
manner.” 345 N.C. 146, 149, 478 S.E.2d 188, 190 (1996). Defendant argues that
because Ms. Tongdee’s purse and her grandmother’s purse were not attached to them
as they slept, there was insufficient evidence of larceny from the person.
The State’s argument essentially concedes that the purses were not attached
to or touching the victims and takes a creative technological approach to defendant’s
contentions. The State argues that even if the purses were not attached to their
owners, the purses were still under their protection thanks to their vicarious “eye” of
the video cameras in the hospital1:
1 The videotape of the incident is not in our record, so our statement of the facts and analysis
is based upon the testimony at trial, some of which describes what is happening in the video.
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STATE V. GREENE
Opinion of the Court
Property is under the protection of a person, such
that it can be the subject of a larceny from the person, so
long as, among other things, it is under the person’s eye.
E.g., State of North Carolina v. Buckom, 328 N.C. 313, 401
S.E.2d 362 (1991) (“If a jeweler removes several diamonds
and places them on the counter for the inspection of a
customer, under the jeweler’s eye, the diamonds are under
the protection of the person.”)
Here, the evidence showed that Ms. Tongdee and
[her grandmother] placed their purses essentially right
next to their bodies as they lay down to sleep. And the
evidence also showed that they went to sleep in a room that
was equipped with a video surveillance camera that
created a motion picture photo-recording of every human
action that occurred during every second while Ms.
Tongdee and [her grandmother] slept in the ICU waiting
room. This video surveillance camera acted as the
functional equivalent to the jeweler’s eye in Buckom.
(Quotation marks and brackets omitted). The State’s argument takes the meaning
of “under the jeweler’s eye,” far out of context and beyond its meaning as used in case
law. Buckom, 328 N.C. at 318, 401 S.E.2d at 365; see State v. Boston, 165 N.C. App.
890, 893, 600 S.E.2d 863, 865 (2004).
In State v. Boston, this Court noted that cases addressing the situations where
property was taken from the person emphasize the importance of “the awareness of
the victim of the theft at the time of the taking[.]” 165 N.C. App. at 893, 600 S.E.2d
at 865. In Boston, the defendant testified that he was having a conversation with the
victim in the victim’s home and “noticed a wallet on a little table near where
defendant was standing. Defendant then took the wallet and walked out the door.”
Id. at 891, 600 S.E.2d at 864. The victim had turned away and did not see the
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Opinion of the Court
defendant take the wallet. Id. at 893, 600 S.E.2d at 865. This Court determined
that the trial court erred by failing to instruct the jury on misdemeanor larceny
because the “defendant presented evidence that the wallet was not under the eye of,
or the protection or control of, Mr. Skinner at the time the wallet was taken.” Id. The
court in Boston noted that its
holding is consistent with the North Carolina Supreme
Court’s decision in State v. Buckom, 328 N.C. 313, 401
S.E.2d 362 (1991). In Buckom, the Court held that the
“from the person” element of larceny from the person was
supported by evidence that the defendant took money from
the open drawer of a cash register at the same time the
cashier was reaching in the drawer to make change. What
distinguishes Buckom from Lee[2] and Barnes is not only
the distance involved, which is relevant to immediate
presence, but also the awareness of the victim of the theft
at the time of the taking, which is relevant to protection
and control. This distinction is further supported by dicta
in Buckom and Barnes. Both cases cited the example of
diamonds placed on the counter and “under the jeweler’s
eye” as remaining under the protection of the jeweler.
Buckom, 328 N.C. at 318, 401 S.E.2d at 365; Barnes, 345
N.C. at 148, 478 S.E.2d at 190.
Id.
Video surveillance systems may make a photographic record of a taking, but
they are no substitute for “the awareness of the victim of the theft at the time of the
taking[.]” Id. Many stores, office buildings, and even city streets now have video
camera surveillance. Furthermore, it is increasingly common for individuals to have
2 In State v. Lee, this Court determined that the taking of a handbag from a grocery cart when
the owner was “four or five steps away” looking at the grocery shelves was not larceny from the person.
88 N.C. App. 478, 478–79, 363 S.E.2d 656, 656 (1988) (quotation marks omitted).
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Opinion of the Court
video security systems in their yards and homes, and some systems will allow
individuals to view the video from their home system on their phone or computer
when away from the residence. The State’s theory of video surveillance as the
“functional equivalent” of the human eye would convert any larceny committed in
areas monitored by video to larceny of the person. Sometimes technological changes
may lead quite reasonably to changes in the law, but the essence of larceny from the
person is still that it is from the person, which requires the person’s awareness at the
time of the taking unless the item was attached to the person. See id.
Nor does the evidence here show that the purses were attached, in the owners’
pocket, or controlled in a like manner. See Barnes, 345 N.C. at 149, 478 S.E.2d at
190. Ms. Tongdee testified that her purse was between her and her daughter
“touching the couch” and that her grandmother’s “purse was between her
[grandmother] and the recliner and the couch[.]” Even though the purses were close
to their owners, the evidence does not show that the purses were actually even
touching them. Because Ms. Tongdee and her grandmother were sleeping at the time
of the larceny, without their purses “attached to [them], in the pocket of clothing being
worn by [them], or controlled by [them] at the time in some equivalent manner[,]”
id., we conclude that there was insufficient evidence that “the property [was] taken
from the victim[s’] person or within the victim[s’] protection and presence at the time
of the taking.” Hull, 236 N.C. App. at 418, 762 S.E.2d at 918. Therefore, we vacate
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Opinion of the Court
and remand for entry of judgment on misdemeanor larceny. See generally Lee, 88
N.C. App. at 479–80, 363 S.E.2d at 657 (“In vacating the larceny from the person
conviction, however, we note that the evidence and verdict support a conviction of the
lesser included offense of misdemeanor larceny, and remand the matter to the trial
court so defendant can be sentenced for that offense in compliance with G.S. 14-3(a).”
(citation omitted)).
B. Conspiracy to Possess Stolen Property
Defendant next contends that the trial court erred in failing to dismiss the
charges of conspiracy to possess stolen goods, i.e., the gun. Defendant concedes he
was in possession of stolen property but argues the evidence was insufficient as to
any conspiracy. “A criminal conspiracy is an agreement between two or more persons
to do an unlawful act. A conspiracy may be shown by express agreement or an implied
understanding. A conspiracy may be shown by circumstantial evidence[.]” State v.
Choppy, 141 N.C. App. 32, 39, 539 S.E.2d 44, 49 (2000) (citations, quotation marks,
and brackets omitted).
The evidence showed that defendant made a phone call from jail to Mr.
Spencer. Thereafter, Mr. Spencer showed up at the residence where the pistol was
and admitted to “working with” defendant. The jury could reasonably infer from the
evidence that Mr. Spencer conspired with defendant to possess the pistol. See id. We
conclude that there was sufficient evidence of a conspiracy to possess stolen property,
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Opinion of the Court
see id., and thus the trial court properly denied defendant’s motion to dismiss. This
argument is overruled.
III. Hearsay Testimony
Defendant next raises several hearsay issues.
A. Hearsay with Same Evidence Admitted
Defendant contends that the trial court erred in overruling his objection to
hearsay as to Detective Lincoln’s testimony regarding what a witness told him about
a vehicle description, the owner of that vehicle, and the relationship between
defendant and the vehicle owner, defendant’s girlfriend. We need not review these
arguments because even if Detective Lincoln’s testimony was inadmissible hearsay,
the same evidence was admitted on several other occasions without objection,
including by another detective. See State v. Perry, 159 N.C. App. 30, 37, 582 S.E.2d
708, 713 (2003) (“By failing to object to the later admission of the same evidence,
defendant has waived any benefit of the original objection and failed to preserve the
issue for appeal.”). These arguments are overruled.
B. Plain Error
Defendant also contends that although he failed to object, the trial court
committed plain error in allowing Detective Lincoln to testify that Mr. Spencer was
linked to several other crimes with defendant, and he had admitted to working with
defendant.
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STATE V. GREENE
Opinion of the Court
[T]he plain error standard of review applies on appeal to
unpreserved instructional or evidentiary error. For error
to constitute plain error, a defendant must demonstrate
that a fundamental error occurred at trial. To show that
an error was fundamental, a defendant must establish
prejudice—that, after examination of the entire record, the
error had a probable impact on the jury’s finding that the
defendant was guilty. Moreover, because plain error is to
be applied cautiously and only in the exceptional case, the
error will often be one that seriously affects the fairness,
integrity or public reputation of judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations, quotation
marks, and brackets omitted). Considering the other evidence regarding a conspiracy
with Mr. Spencer, including that defendant called him from jail, and thereafter Mr.
Spencer showed up at the location where the stolen pistol was hidden, even if there
was hearsay testimony as to the relationship between the two, we do not believe this
“error had a probable impact on the jury’s finding that the defendant was guilty.” Id.
IV. Ineffective Assistance of Counsel
Defendant next argues that he received ineffective assistance of counsel
because his attorney elicited the hearsay testimony regarding the relationship
between himself and Mr. Spencer.
To obtain relief for ineffective assistance of counsel, the
defendant must demonstrate initially that his counsel’s
conduct fell below an objective standard of reasonableness.
The defendant’s burden of proof requires the following:
First, the defendant must show that counsel’s
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
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Opinion of the Court
counsel guaranteed the defendant by the
Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a
trial whose result is reliable.
The defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.
State v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (2002) (citations and
quotation marks omitted). Even generously presuming arguendo that defendant’s
attorney committed an error in his cross-examination of Detective Lincoln, defendant
has not shown that, “but for counsel’s unprofessional errors, the result of the
proceeding would have been different” given the telephone call between the two from
jail coupled with Mr. Spencer thereafter showing up where the gun was hidden. Id.
We conclude that defendant did not receive ineffective assistance of counsel. This
argument is overruled.
V. Jury Instructions
Defendant next contends that the trial court committed plain error in
reinstructing the jury on larceny from the person as the instructions “amounted to a
directed verdict of guilty since the court did not explain that the person would not
physically possess the property or not be within the person’s protection if the person
was asleep at the time of the taking.” (Original in all caps.) As we have already
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Opinion of the Court
vacated and remanded for defendant’s conviction of larceny of the person and as
defendant does not challenge the instruction regarding the elements of misdemeanor
larceny, we need not address this issue.
VI. Arrest Judgment
Lastly, defendant contends that the trial “court should arrest judgment on one
of the two larceny of the persons in 13 CRS 53006 since the thefts occurred during a
continuous transaction and is thus one larceny for the purposes of conviction and
sentencing.” (Original in all caps.) Defendant contends that his theft of the gun from
Ms. Tongdee and the cash from her grandmother were part of one continuous
transaction. Defendant cites to State v. Froneberger, where the defendant was
convicted after pawning items of silver from the same larceny victim on four separate
occasions, and this Court set aside three of the convictions because there was no
evidence that the larceny was not actually one transaction, but then defendant
pawned the items over time. See Froneberger, 81 N.C. App. 398, 344 S.E.2d 344
(1986). The Court noted the general rule, “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.” Id. at 401, 344 S.E.2d at 347. Thus, because in
Froneberger, all of the items stolen belonged to the same owner and were taken from
the same place without any evidence that the items were taken at different times,
this Court set aside three of the convictions. Id. at 401-02, 344 S.E.2d at 347.
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Opinion of the Court
Evidence indicating property was taken from the same person led to only one
conviction of larceny for the defendant. See id.
But here, the takings were from two separate victims. In an analogous
situation, regarding robbery, this Court has determined that when the “defendants
threatened the use of force on separate victims and took property from each of them.
. . . [E]ach separate victim was deprived of property. The armed robbery of each
person is a separate and distinct offense, for which defendants may be prosecuted and
punished.” State v. Johnson, 23 N.C. App. 52, 56, 208 S.E.2d 206, 209 (1974). Here,
defendant took property from both Ms. Tongdee and her grandmother. In fact, the
jury saw the video surveillance recording which showed that defendant walked up to
the couch where Ms. Tongdee was sleeping, took a purse, went through it, took the
gun, began to walk away, and then turned around, walked back to the waiting area,
and grabbed a purse from a chair where Ms. Tongdee’s grandmother was asleep.
Defendant walked away after taking Ms. Tongdee’s gun and appeared to be leaving,
but then he returned to take her grandmother’s purse.
The elements of larceny are: “(1) taking the property of another; (2) carrying
it away; (3) without the owner’s consent; and (4) with intent to permanently deprive
the owner of the property.” Hull, 236 N.C. App. at 418, 762 S.E.2d at 918. Here
defendant took and carried away property belonging to two separate victims, without
either owner’s consent, and with the intent to permanently deprive each of them of
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Opinion of the Court
their personal property, and thus the jury was properly allowed to consider both
charges and the trial court properly sentenced defendant upon them. See generally
Johnson, 23 N.C. App. at 56, 208 S.E.2d at 209. This argument is overruled.
VII. Conclusion
For the foregoing reasons, we vacate defendant’s convictions for larceny from
the person and remand for entry of judgments for misdemeanor larceny and any
necessary resentencing on defendant’s multiple convictions. As to all other issues
raised on appeal, we find no error.
VACATED and REMANDED in part; NO ERROR in part.
Judges CALABRIA and TYSON concur.
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