State v. White ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-369
Filed 16 May 2023
Union County, Nos. 18 CRS 56328, 19 CRS 313
STATE OF NORTH CAROLINA
v.
ORIENTIA JAMES WHITE
Appeal by defendant from judgments entered 26 August 2021 by Judge
Jonathan Wade Perry in Union County Superior Court. Heard in the Court of Appeals
21 February 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Wendy J.
Lindberg, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant-appellant.
ZACHARY, Judge.
Defendant Orentia1 James White appeals from judgments entered upon a
jury’s verdicts finding him guilty of felony larceny; conspiracy to commit felony
larceny; and obtaining property by false pretenses; and upon his guilty plea to having
attained habitual felon status. After careful review, we conclude that Defendant
received a fair trial, free from error.
1 The judgments appealed from spell Defendant’s name as “Orientia” but the record reflects
that Defendant’s name is spelled “Orentia.”
STATE V. WHITE
Opinion of the Court
I. Background
On 17 December 2018, when they arrived for work at approximately 7:00 a.m.,
employees of the Walmart in Monroe discovered that a locked display case in the
electronics department had been opened and nearly emptied. The display case, which
was usually filled to its capacity with Beats and Apple merchandise, was later
determined to be missing 70 items worth a total of $9,898.80.
Walmart management contacted the Monroe Police Department and
instructed the store’s asset protection department “to conduct video surveillance to
find out what happened[.]” Meanwhile, an employee found a Beats speaker on the
floor in the crafts department, the section of the store adjacent to the electronics
department. There, the employee also discovered a car seat out of its box, which “was
unusual because [Walmart] cannot sell car seats out of the box.”
Surveillance footage captured between 1:03 and 1:48 a.m. showed the actions
of three suspects: two men—one of whom would later be identified as Defendant—
and a woman.2 The three individuals entered the store and the two men headed to
the electronics department. The unidentified female suspect approached the two male
suspects pushing a shopping cart that contained a plastic storage bin and a child’s
car seat box. The two unidentified suspects pushed the shopping cart past the Beats
display case and turned into the adjacent aisle, where they removed the car seat box
2 The two other suspects appear not to have subsequently been identified or charged.
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Opinion of the Court
from the shopping cart and placed it out of the camera’s view. Defendant followed
behind them, stopping at the display case. As Defendant perused the display case,
the two unidentified suspects pushed the shopping cart—now containing only the
plastic storage bin without the car seat box—and walked away. About a minute later,
the unidentified male suspect joined Defendant at the display case; Defendant had
his back to the camera, obscuring his actions at the display case. The two men then
moved away from the display case, and Defendant walked alone up the aisle where
the car seat box had been placed. Over the next few minutes, the suspects appeared
to browse as lone shoppers, periodically disappearing from the surveillance footage
and reappearing soon thereafter.
The unidentified female suspect reappeared with the shopping cart containing
the plastic storage bin, and pushed it up to the display case. She placed the plastic
bin on the ground in front of the display case and emptied its merchandise into the
plastic bin while Defendant browsed in the adjacent aisle. She then pushed the plastic
bin up the adjacent aisle, where she met Defendant, who crouched down next to her.
The female suspect then returned to the now-empty shopping cart and pushed it out
of the camera’s view while Defendant remained crouching near the plastic bin in the
adjacent aisle. After a few minutes, the female suspect reappeared, pushing the
empty shopping cart up to Defendant, who placed the car seat box in the shopping
cart before the female suspect pushed the cart away. Defendant walked up the other
end of the aisle and followed after her on his own.
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Opinion of the Court
A few minutes later, another surveillance camera captured the female suspect
approaching an exit door, pushing the shopping cart containing the car seat box.
However, due to the early morning hour, the door did not open, so she pushed the
cart away from the door. A few minutes later, another surveillance camera recorded
the three suspects apparently purchasing the car seat at a self-checkout kiosk.
Cameras in the parking lot captured the three suspects exiting the store, loading the
car seat box into a vehicle in the parking lot, and driving off together.
On 8 April 2019, a Union County grand jury returned true bills of indictment
charging Defendant with one count each of felony larceny, conspiracy to commit
felony larceny, obtaining property by false pretenses, and having attained habitual
felon status. The grand jury returned superseding indictments on the same charges
on 4 November 2019.
On 23 August 2021, the matter came on for trial in Union County Superior
Court. At the close of the State’s evidence, Defendant moved to dismiss the charges
against him, which the trial court denied. Defendant did not present any evidence,
and he renewed his motion to dismiss at the close of all evidence. The trial court again
denied Defendant’s motion to dismiss.
The trial court instructed the jury on the offenses of felony larceny, conspiracy
to commit felony larceny, and obtaining property by false pretenses. The jury
returned guilty verdicts for all three offenses. Thereafter, Defendant pleaded guilty
to attaining the status of habitual felon.
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The trial court entered two judgments, sentencing Defendant as a habitual
felon in the mitigated range to two consecutive terms of 75 to 102 months in the
custody of the North Carolina Division of Adult Correction, and ordering that court
costs and restitution of $9,898.80 to Walmart be entered as a civil judgment.
Defendant gave oral notice of appeal.
II. Discussion
Defendant argues that the trial court erred by denying his motion to dismiss
because there was insufficient evidence to support the charges of both felony larceny
and obtaining property by false pretenses. Alternatively, in the event that this Court
finds that his motion to dismiss argument was not preserved for appellate review,
Defendant argues that the trial court erred by instructing the jury on both the charge
of felony larceny and the charge of obtaining property by false pretenses.
A. Preservation
“Rule 10(a)(3) of the North Carolina Rules of Appellate Procedure provides
that, in a criminal case, to preserve an issue concerning the sufficiency of the State’s
evidence, the defendant must make a motion to dismiss the action at trial.” State v.
Golder, 374 N.C. 238, 245, 839 S.E.2d 782, 787 (2020) (citation and internal quotation
marks omitted); N.C.R. App. P. 10(a)(3). Our Supreme Court recently held that “Rule
10(a)(3) does not require that the defendant assert a specific ground for a motion to
dismiss for insufficiency of the evidence.” Golder, 374 N.C. at 245–46, 839 S.E.2d at
788. Accordingly, “a defendant preserves all insufficiency of the evidence issues for
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Opinion of the Court
appellate review simply by making a motion to dismiss the action at the proper time.”
Id. at 246, 839 S.E.2d at 788.
In the case at bar, Defendant moved to dismiss all charges at the close of the
State’s evidence, and he renewed his motion to dismiss at the close of all evidence.
Accordingly, Defendant properly preserved this issue, and we need not address his
alternative argument. See id.
B. Standard of Review
Our standard of review of a trial court’s denial of a motion to dismiss is well
established:
In ruling on a motion to dismiss, the trial court need
determine only whether there is substantial evidence of
each essential element of the crime and that the defendant
is the perpetrator. Substantial evidence is the amount
necessary to persuade a rational juror to accept a
conclusion. In evaluating the sufficiency of the evidence to
support a criminal conviction, the evidence must be
considered in the light most favorable to the State; the
State is entitled to every reasonable intendment and every
reasonable inference to be drawn therefrom. In other
words, if the record developed at trial contains substantial
evidence, whether direct or circumstantial, or a
combination, to support a finding that the offense charged
has been committed and that the defendant committed it,
the case is for the jury and the motion to dismiss should be
denied. Whether the State presented substantial evidence
of each essential element of the offense is a question of law;
therefore, we review the denial of a motion to dismiss de
novo.
State v. Blagg, 377 N.C. 482, 487–88, 858 S.E.2d 268, 273 (2021) (citation omitted).
C. Analysis
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STATE V. WHITE
Opinion of the Court
Defendant argues that the trial court should have dismissed either the charge
of felony larceny or the charge of obtaining property by false pretenses under the
“single taking rule.” “The ‘single taking rule’ prevents a defendant from being charged
or convicted multiple times for a single continuous act or transaction.” State v.
Buchanan, 262 N.C. App. 303, 306, 821 S.E.2d 890, 892 (2018). “[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.” State v. Adams, 331 N.C. 317, 333,
416 S.E.2d 380, 389 (1992) (citation omitted). The “single taking rule” also applies to
indictments charging the offense of obtaining property by false pretenses. Buchanan,
262 N.C. App. at 306, 821 S.E.2d at 892.
In Adams, for example, the defendant was charged with both felonious larceny
of a firearm and felonious larceny of property stolen pursuant to a breaking or
entering. 331 N.C. at 332, 416 S.E.2d at 388. The evidence at trial tended to show
that the firearm that was the subject of the first larceny charge was among the
property that was the subject of the second larceny charge. Id. Our Supreme Court
concluded that the “defendant was improperly convicted and sentenced for both
larceny of a firearm and felonious larceny of that same firearm pursuant to a breaking
or entering.” Id. at 333, 416 S.E.2d at 389.
However, in each of the cases upon which Defendant relies, including Adams,
the defendant was charged with either larceny offenses or obtaining property by false
pretenses, but not both. See id.; see also State v. Posner, 277 N.C. App. 117, 120, 857
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S.E.2d 870, 873 (2021) (one count of felony larceny of property pursuant to a breaking
or entering and one count of felony larceny of a firearm); Buchanan, 262 N.C. App. at
308, 821 S.E.2d at 893 (two counts of obtaining property by false pretenses); State v.
Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 682 (1985) (three counts of larceny of
firearms and one count of felony larceny). Unlike those cases, in the case before us
Defendant was charged with both larceny and obtaining property by false pretenses.
This Court has recognized that “the crimes of larceny and obtaining property
by false pretenses . . . are separate and distinguishable offenses.” State v. Kelly, 75
N.C. App. 461, 463, 331 S.E.2d 227, 229 (1985). “The essential elements of larceny
are 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 his property
permanently.” State v. Campbell, 373 N.C. 216, 221, 835 S.E.2d 844, 848 (2019)
(citation and internal quotation marks omitted). By contrast, obtaining property by
false pretenses comprises the following elements: “(1) a false representation of a
subsisting fact or a future fulfillment or event, (2) which is calculated and intended
to deceive, (3) which does in fact deceive, and (4) by which one person obtains or
attempts to obtain value from another.” State v. Pierce, 279 N.C. App. 494, 499, 865
S.E.2d 335, 339 (2021) (citation omitted). “A key element of obtaining property by
false pretenses is that an intentionally false and deceptive representation of a fact or
event has been made.” Kelly, 75 N.C. App. at 464, 331 S.E.2d at 230. This reveals a
significant distinction between the two offenses: “A false and deceptive
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Opinion of the Court
representation is not an element of larceny.” Id.Here, Defendant made such a “false and deceptive representation of a fact”: he
represented to Walmart3 that he was purchasing a car seat for $89.00, rather than
$9,898.80 worth of misappropriated merchandise secreted inside the car seat’s box.
As the State persuasively argues in its appellate brief, had Defendant and his co-
conspirators attempted to take the merchandise and carried it out of the store without
involving the car seat box, under the “single taking” rule “the proper charges would
have been one count of felony larceny and one count of conspiracy to commit felony
larceny, not 70[.]”
However, as the State correctly observes, Defendant and his co-conspirators
committed the separate and distinguishable offense of obtaining property by false
pretenses “by removing an infant car seat from its box, loading that box with the
stolen [merchandise], and taking that box to the checkout counter, where they paid
the value for an infant car seat knowing that it was not the value of the items inside
the box.” By selecting a large box and removing its original contents, Defendant and
his co-conspirators were able to represent to Walmart that they were purchasing an
item worth less than one percent of the actual value of the merchandise it contained.
As the State notes: “Defendant’s actions by paying the value for a box that
represented an $89.00 item knowing there were multiple, more valuable items inside
3 For the purposes of N.C. Gen. Stat. § 14-100, the term “person” includes a “corporation.” N.C.
Gen. Stat. § 14-100(c) (2021).
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the box at the time was conduct sufficient to support a false representation being
made.” We agree with the State’s contention that it “provided substantial evidence of
every element of both crimes” of felony larceny and obtaining property by false
pretenses.
Defendant further argues that N.C. Gen. Stat. § 14-100 prohibited the trial
court “from submitting felony larceny and obtaining property by false pretenses as
two separate counts for the jury to consider independently and return two separate
verdicts on.” For support, Defendant points to the portion of § 14-100(a) that provides:
[I]f, on the trial of anyone indicted for [obtaining property
by false pretenses], it shall be proved that he obtained the
property in such manner as to amount to larceny or
embezzlement, the jury shall have submitted to them such
other felony proved; and no person tried for such felony
shall be liable to be afterwards prosecuted for larceny or
embezzlement upon the same facts.
N.C. Gen. Stat. § 14-100(a) (2021).
Our Supreme Court has interpreted this provision with respect to
embezzlement, holding:
Where . . . there is substantial evidence tending to support
both embezzlement and false pretenses arising from the
same transaction, the State is not required to elect between
the offenses. Indeed, if the evidence at trial conflicts, and
some of it tends to show false pretenses but other evidence
tends to show that the same transaction amounted to
embezzlement, the trial court should submit both charges
for the jury’s consideration. In doing so, however, the trial
court must instruct the jury that it may convict the
defendant only of one of the offenses or the other, but not
of both. If, on the other hand, the evidence at trial tends
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Opinion of the Court
only to show embezzlement or tends only to show false
pretenses, the trial court must submit only the charge
supported by evidence for the jury’s consideration.
State v. Speckman, 326 N.C. 576, 579, 391 S.E.2d 165, 167 (1990).
Defendant posits that because N.C. Gen. Stat. § 14-100(a) “applies equally to
‘larceny or embezzlement,’ the Speckman discussion is equally relevant in the larceny
context.” Accordingly, Defendant contends that, “[a]t most, the trial court in this case
was authorized under Speckman to submit felony larceny and obtaining property by
false pretenses as mutually exclusive options for the jury to return a verdict on.” We
disagree.
Defendant overlooks a critical principle underlying the Speckman Court’s
reasoning: the crimes of embezzlement and obtaining property by false pretenses are
mutually exclusive. As the Speckman Court explained, in order “to constitute
embezzlement, the property in question initially must be acquired lawfully, pursuant
to a trust relationship, and then wrongfully converted”; in order to constitute false
pretenses, however, “the property must be acquired unlawfully at the outset,
pursuant to a false representation.” Id. at 578, 391 S.E.2d at 166–67 (emphases
added). Because “property cannot be obtained simultaneously pursuant to both lawful
and unlawful means, guilt of either embezzlement or false pretenses necessarily
excludes guilt of the other.” Id. at 578, 391 S.E.2d at 167. This mutual exclusivity was
the basis for the Speckman Court’s holding that “a defendant may not be convicted of
both embezzlement and false pretenses arising from the same act or transaction[.]”
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Id.By contrast, the crimes of larceny and obtaining property by false pretenses
are not mutually exclusive. As previously discussed, “the crimes of larceny and
obtaining property by false pretenses . . . are separate and distinguishable offenses.”
Kelly, 75 N.C. App. at 463, 331 S.E.2d at 229. Accordingly, Defendant is incorrect to
assert that Speckman “is equally relevant in the larceny context.” As we previously
explained: “A false and deceptive representation is not an element of larceny.” Kelly,
75 N.C. App. at 464, 331 S.E.2d at 230.
In the larceny indictment, the State alleged that Defendant did “steal, take
and carry away a quantity of headphones and an I-Pod, without the consent of the
possessor and knowing that he was not entitled to it, with the intent to deprive the
possessor of its use permanently[.]” And in the indictment for obtaining property by
false pretenses, the State alleged that Defendant obtained “a quantity of headphones
and an I-Pod” by the following false and intentionally deceptive scheme:
[D]efendant took a car seat out of [its] box while in Wal-
Mart. . . . [D]efendant placed a quantity of headphones and
an I-Pod in the empty car seat box. . . . [D]efendant then
rang up and paid for the car seat box knowing a car seat
was not in the box and he never paid for the quantity of
headphones and I-Pod that were actually in the box. This
was a false representation of a material fact which was
intended to deceive, and which did in fact deceive.
(Emphasis added).
The offenses of larceny and obtaining property by false pretenses are not
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mutually exclusive, neither in their elements, as explained above, nor as alleged in
the instant indictments. Furthermore, as previously discussed, viewed in the light
most favorable to the State, we conclude that the State presented “substantial
evidence of each essential element of [each] crime and that [D]efendant is the
perpetrator.” Blagg, 377 N.C. at 487, 858 S.E.2d at 273 (citation omitted).
Accordingly, the trial court did not err in denying Defendant’s motion to dismiss, or
in submitting both offenses to the jury “to consider independently and return two
separate verdicts on.”
III. Conclusion
For the foregoing reasons, we conclude that Defendant received a fair trial, free
from error.
NO ERROR.
Judges FLOOD and RIGGS concur.
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