State v. Manns ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1324
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Forsyth County
No. 12 CRS 061995
JOY FATINA MANNS
Appeal by defendant from judgment entered 1 May 2013 by
Judge William Z. Wood in Forsyth County Superior Court. Heard
in the Court of Appeals 26 May 2014.
Attorney General Roy Cooper, by Associate Attorney General
Adrian Dellinger, for the State.
Don Willey for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant appeals from judgment entered based upon her
conviction for felonious larceny from a merchant by removing,
destroying, or deactivating an antishoplifting or inventory
control device. We find no error.
Background
The State’s evidence at trial establishes the following
factual background. Paul Lott is the loss prevention manager at
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Macy’s in Winston-Salem, North Carolina. On 30 November 2012,
after being alerted about defendant’s presence, Mr. Lott, using
an exterior video camera, located defendant in the parking lot.
After leaning through the passenger window of a vehicle,
defendant walked around and sat in the driver’s seat. Defendant
then took individual items of clothing out of a bag, wrapped a
plastic bag around each item’s antitheft device, and pulled each
antitheft device apart.
Mr. Lott testified that Macy’s used two types of antitheft
devices to protect certain merchandise. The first type, called
a microwave system, sets off an alarm when taken through the
store’s exits. The second type, called an ink tag, contains
vials of ink which are supposed to stain the item when the tag
is pulled apart. Mr. Lott testified that the type of
merchandise recovered from defendant would have had been
protected by these types of antitheft devices.
After Mr. Lott observed defendant removing the antitheft
devices, he called the Winston-Salem Police Department, and
officers responded within five minutes. Officer K.D. Freeman
was one of the responding officers. He identified defendant,
since he had known her for several years. Defendant told
Officer Freeman that she had gone to Macy’s to steal clothing in
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order to pay her bills. Officer Freeman noticed that the
antitheft devices had been burned and removed from the clothing.
Defendant told him that she “learned how to steal a long time
ago” and had burned the devices off. Another officer
photographed the merchandise, seized it, and returned it to Mr.
Lott. The merchandise consisted of jeans, pants, and a purse.
Mr. Lott confirmed that the merchandise belonged to Macy’s. The
stolen goods had a total value of $894.00.
At the close of the State’s evidence, defendant moved to
dismiss the charge, but the trial court denied her motion.
Defendant renewed her motion at the close of all evidence, which
the trial court again denied.
The jury found defendant guilty of felonious larceny by
removing, destroying, or deactivating an antishoplifting or
inventory control device. The trial court sentenced defendant
to a term of 6 to 17 months imprisonment. Defendant gave notice
of appeal in a timely manner.
Discussion
Defendant argues that the trial court erred by denying her
motion to dismiss. “‘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
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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 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914,
918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150(2000). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164,
169 (1980). “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). “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).
In the instant case, defendant was charged with larceny
from a merchant by removing, destroying, or deactivating an
antishoplifting or inventory control device, pursuant to N.C.
Gen. Stat. § 14-72.11(2) (2013). “The essential elements of
larceny are: (1) taking the property of another; (2) carrying it
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away; (3) without the owner’s consent; and (4) with the intent
to deprive the owner of the property permanently.” State v.
Wilson, 154 N.C. App. 686, 690, 573 S.E.2d 193, 196 (2002).
Here, the State was required to prove the four elements of
larceny, plus the additional element specified by section 14-
72.11(2): that the larceny was committed against a merchant
“[b]y removing, destroying, or deactivating a component of an
antishoplifting or inventory control device to prevent the
activation of any antishoplifting or inventory control device.”
N.C. Gen. Stat. § 14-72.11(2); see State v. Justice, ___ N.C.
App. ___, ___, 723 S.E.2d 798, 800-01 (2012).
On appeal, defendant challenges the sufficiency of the
evidence to support the additional element required by section
14-72.11(2), which makes the larceny a Class H felony under the
circumstances. She argues that the evidence shows she made no
attempt to remove, destroy, or deactivate the antitheft devices
until after the larceny had been completed and therefore did not
attempt to remove the antitheft devices to prevent their
activation or carry out the theft undetected. Thus, while
defendant concedes that the evidence was sufficient to support a
larceny conviction, she contends that the record only supports a
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conviction for misdemeanor larceny, given that the value of the
stolen goods was under $1,000.00.
Defendant has not cited any legal authority for her
argument, and we are not persuaded. The plain language of the
statute does not support her contention. Furthermore, in
Justice, we stated that “the removal of an antishoplifting
device is a separate and distinct element from the taking and
carrying away of the property in question.” Justice, ___ N.C.
App. at ___, 723 S.E.2d at 801. Although Justice dealt with an
issue related to the indictment, we find our discussion of the
elements of this offense in that decision to be instructive with
respect to the instant issue, and we decline to deviate from the
reasoning quoted above. See id.We find that the State’s evidence is sufficient to support
a finding that defendant removed a component of an
antishoplifting or inventory control device. Mr. Lott observed
defendant removing antitheft devices from merchandise in the
parking lot of Macy’s. Defendant also stated to Officer Freeman
that she went to Macy’s to shoplift in order to pay her bills
and that she burned off the antitheft devices. Accordingly, we
hold that the trial court did not err in denying defendant’s
motion to dismiss.
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Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).