State v. Sexton ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1086
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Wake County
No. 12 CRS 213765
ANTHONY JOHN SEXTON
Appeal by defendant from judgment entered 14 February 2013
by Judge Michael J. O’Foghludha in Wake County Superior Court.
Heard in the Court of Appeals 22 January 2013.
Roy Cooper, Attorney General, by Elizabeth A. Fisher,
Assistant Attorney General, for the State.
Daniel F. Read for defendant-appellant.
DAVIS, Judge.
Anthony John Sexton (“Defendant”) appeals from his
conviction for felonious larceny of a dog. On appeal, he argues
that the trial court erred by (1) denying his motion to dismiss
the charge against him for insufficient evidence; and (2)
allowing testimony regarding his temper and use of profane
language, his conduct towards one of the State’s witnesses, his
physical appearance at the time of the subject incident, and his
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conduct the day after the incident. After careful review, we
conclude that Defendant received a fair trial free from error.
Factual Background
The State presented evidence at trial tending to establish
the following facts: On 16 June 2012, Linwood Marshall (“Mr.
Marshall”), Denise Marshall (“Mrs. Marshall”), and their
children left for a weekend trip to the beach to celebrate
Father’s Day. The Marshalls left their dog, Malibu, at their
home in Youngsville, North Carolina, having previously arranged
for Mrs. Marshall’s mother to visit the house and care for
Malibu. When Mrs. Marshall’s mother visited the house to feed
Malibu on 16 June 2012, she discovered that Malibu was not in
her pen.
Upon returning home and discovering that Malibu was
missing, Mr. Marshall searched the neighborhood for the dog. He
learned that one of the neighborhood children had been walking
Malibu, that the child had accidentally dropped her leash, and
that Malibu then “took off.”
The same morning that Malibu was discovered to be missing,
Richard Aleksic (“Mr. Aleksic”) — who was staying with his
girlfriend, Charlene Dossett, in the residence next door to
Defendant’s home — witnessed Defendant chasing Malibu through a
wooded area near his house. Mr. Aleksic saw Defendant grab
Malibu’s leash and say: “I got you now, you motherf——er. . . .
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I’m going to take care of this f——ing sh—t once and for all.”
Approximately one month earlier, an altercation had
occurred between Mrs. Marshall and Defendant when his dogs
chased her while she was walking Malibu. When Mrs. Marshall
confronted Defendant about his dogs’ behavior, Defendant
responded: “[M]y dogs? Your dog comes over here all the time .
. . [S]he was over here last week and I got a video of it.”
After this incident, Mrs. Marshall did not walk Malibu by
Defendant’s house anymore.
On 17 June 2012, Deputy B.J. Simmons (“Deputy Simmons”) of
the Wake County Sheriff’s Office was on duty and received a call
from dispatch to meet Mr. Marshall at his home regarding a
missing dog. After Deputy Simmons arrived, Mr. Marshall
explained to him that Malibu was missing and that one of their
neighbors had seen Defendant “grab what appeared to be their
dog.” After gathering some information from Mr. Marshall,
Deputy Simmons proceeded to knock on Defendant’s door, identify
himself as a deputy sheriff, and inform Defendant that he was
looking for the Marshalls’ dog. When Deputy Simmons told
Defendant that Mr. Aleksic had seen him grab Malibu the previous
day, Defendant replied that he had been at work that Saturday
morning and that he did not know Mr. Aleksic.
Two days later, Mr. Aleksic was driving in his car and
discovered that Defendant was following him. For approximately
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twenty minutes, Defendant continued to follow Mr. Aleksic while
making “obscene gestures, giving [him] the finger . . . [and]
riding [his] bumper.” Mr. Aleksic called the Highway Patrol and
was instructed to turn on his four-way flashers. Once Mr.
Aleksic did so, Defendant stopped following him. Mr. Aleksic
believed that Defendant’s actions were “retaliatory” and that
Defendant was “trying to scare [him] or trying to run [him] off
the road” because Mr. Aleksic “knew the situation” with Malibu.
On 7 August 2012, Defendant was indicted and charged with
felonious larceny of a dog in violation of N.C. Gen. Stat. § 14-
81(a)(1). A jury trial was held beginning on 13 February 2013
in Wake County Superior Court. The jury found Defendant guilty,
and the trial court entered judgment on the jury’s verdict. The
trial court sentenced Defendant to 6 to 17 months imprisonment,
suspended the sentence, and placed Defendant on supervised
probation for a period of 24 months. Defendant gave notice of
appeal in open court.
Analysis
I. Denial of Motion to Dismiss
Defendant’s first argument on appeal is that the trial
court erred in denying his motion to dismiss based on the
insufficiency of the evidence. Defendant argues that the
evidence presented at trial raised only a “mere suspicion” of
his guilt of the larceny of Malibu such that dismissal of the
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charge was warranted. We disagree.
A trial court’s denial of a defendant’s motion to dismiss
is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007). When ruling on a motion to dismiss, “the
trial court must determine whether there is substantial evidence
(1) of each essential element of the offense charged and (2)
that defendant is the perpetrator of the offense.” State v.
Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (citation
and quotation marks omitted). “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, 78-79,
265 S.E.2d 164, 169 (1980).
In reviewing challenges to the sufficiency
of evidence, we must view the evidence in
the light most favorable to the State,
giving the State the benefit of all
reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of
the case but are for the jury to resolve.
The test for sufficiency of the evidence is
the same whether the evidence is direct or
circumstantial or both. Circumstantial
evidence may withstand a motion to dismiss
and support a conviction even when the
evidence does not rule out every hypothesis
of innocence.
State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455,
cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000) (citations
and quotation marks omitted). “If there is any evidence tending
to prove guilt or which reasonably leads to this conclusion as a
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fairly logical and legitimate deduction, it is for the jury to
say whether it is convinced beyond a reasonable doubt of
defendant’s guilt.” State v. Franklin, 327 N.C. 162, 171-72,
393 S.E.2d 781, 787 (1990).
To overcome a motion to dismiss a charge of larceny, the
State must present substantial evidence that the 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
the property permanently.” State v. Osborne, 149 N.C. App. 235,
242-43, 562 S.E.2d 528, 534 (citation and quotation marks
omitted), aff’d per curiam, 356 N.C. 424, 571 S.E.2d 584 (2002).
Here, the State offered testimony from Mr. Aleksic that
Defendant (1) ran after Malibu, chasing her through the wooded
area near his house; (2) grabbed Malibu’s leash and pulled her
back onto his property; and (3) shouted “I got you now, you
motherf——er. . . . I’m going to take care of this f——ing sh—t
once and for all” after he had grabbed Malibu’s leash.
The State’s evidence demonstrated that Defendant knew
Malibu was the Marshalls’ dog and that the Marshalls had not
given Defendant consent or permission to take Malibu. See State
v. Moore, 46 N.C. App. 259, 262, 264 S.E.2d 899, 900 (1980)
(concluding that person may be convicted of larceny when he
finds and keeps lost property if “at the time he finds the
property he knows or has reason to believe that he can ascertain
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the owner of the property” (citation omitted)). The State
offered circumstantial evidence of Defendant’s intent to
permanently deprive the Marshalls of their dog through Mr.
Aleksic’s testimony that he overheard Defendant state he was
“going to take care of this f——ing sh—t once and for all” and
the fact that Defendant never returned Malibu to the Marshalls.
Furthermore, the fact that Defendant followed Mr. Aleksic’s
vehicle for approximately twenty minutes under these
circumstances allowed the jury to infer that he was trying to
intimidate Mr. Aleksic so as to prevent him from testifying
against Defendant. See State v. Brockett, 185 N.C. App. 18, 26,
647 S.E.2d 628, 635 (“Generally, an attempt by a defendant to
intimidate a witness to affect the witness’s testimony is
relevant and admissible to show the defendant’s awareness of his
guilt.”), disc. review denied, 361 N.C. 697, 654 S.E.2d 483(2007).
Based on all of this evidence, a reasonable juror could
have concluded that Defendant was guilty of taking and carrying
away Malibu without the Marshalls’ consent and with the intent
to permanently deprive them of their dog. Accordingly, we hold
that the trial court did not err in denying Defendant’s motion
to dismiss.
II. Admission of Evidence Concerning Defendant’s Conduct and
Physical Appearance
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Defendant next asserts that the trial court committed plain
error by admitting testimony relating to (1) his following Mr.
Aleksic’s car for approximately twenty minutes; (2) his use of
profane language; (3) the “big shaggy beard” he had at the time
of the incident and the fact that he shaved it prior to trial;
and (4) the fact that he was digging in his backyard with a
tractor the day after Malibu was discovered to be missing.
Defendant argues that although “individually these irrelevant
character attacks and arguments may not have risen to the level
of reversible error, taken together they served to deprive
[Defendant] of a fair trial.” Defendant acknowledges that he
did not object to the introduction of this evidence at trial and
is, therefore, limited to plain error review on appeal.
Under plain error review, Defendant bears the burden of
showing that the alleged error “had a probable impact on the
jury’s finding that the defendant was guilty.” State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(citation and quotation marks omitted). “[T]he plain error rule
may not be applied on a cumulative basis, but rather a defendant
must show that each individual error rises to the level of plain
error.” State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453,
463 (2009) (emphasis added).
Here, Defendant has failed to make such a showing. He
offers no argument or explanation as to how any of the alleged
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evidentiary errors committed by the trial court — on an
individual basis — were “so fundamental that justice could not
have been done” or why these errors had a probable impact on the
jury’s finding of guilt. State v. Cummings, 352 N.C. 600, 636,
536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149
L.Ed.2d 641 (2001). As our Supreme Court has explained:
The right and requirement to specifically
and distinctly contend an error amounts to
plain error does not obviate the requirement
that a party provide argument supporting the
contention that the trial court’s [improper
admission of evidence] amounted to plain
error, as required by subsections (a) and
(b)(5) of Rule 28 [of the North Carolina
Rules of Appellate Procedure]. To hold
otherwise would negate those requirements,
as well as those in Rule 10(b)(2).
Defendant’s empty assertion of plain error,
without supporting argument or analysis of
prejudicial impact, does not meet the spirit
or intent of the plain error rule.
Id. at 636-37, 536 S.E.2d at 61 (internal citations omitted).
Because Defendant has failed to provide this Court with any
specific argument as to why the admission of each challenged
piece of evidence rose to the level of plain error, he has
failed to meet his burden of establishing plain error. See
State v. Wiley, 355 N.C. 592, 623-24, 565 S.E.2d 22, 44 (2002)
(holding that where defendant “asserts plain error but provides
no explanation as to why any alleged error rises to the level of
plain error. . . . , defendant has effectively failed to argue
plain error and has thereby waived appellate review”), cert.
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denied, 537 U.S. 1117, 154 L.Ed.2d 795 (2003).
Conclusion
For these reasons, we conclude that Defendant received a
fair trial free from error.
NO ERROR.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).