State v. SellersÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-1163
Filed: 5 July 2016
Randolph County, Nos. 11 CRS 226, 11 CRS 52761
STATE OF NORTH CAROLINA,
v.
KELVIN LEANDER SELLERS, Defendant.
Appeal by Defendant from judgments entered 2 April 2013 by Judge L. Todd
Burke and Judge V. Bradford Long in Randolph County Superior Court. Heard in
the Court of Appeals 9 March 2016.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
for the State.
Kimberly P. Hoppin, for Defendant-Appellant.
HUNTER, JR., Robert N., Judge.
Defendant appeals from judgments entered 2 April 2013 by Judges L. Todd
Burke and V. Bradford Long after a jury convicted him of financial card theft,
possession of stolen property, and the status of being an habitual felon. Our review
of the indictment reveals the indictment did not contain all of the elements of
possession of stolen property. Therefore, we vacate the judgment as it pertains to
Defendant’s conviction for possession of stolen property. Defendant contends the trial
court erred in denying his motion to dismiss the charges of financial card theft
because the State failed to present sufficient evidence of those offenses. Defendant
STATE V. SELLERS
Opinion of the Court
also argues he was denied the effective assistance of counsel, though he did not file a
motion for appropriate relief with the trial court. We hold the trial court did not err
in part, but we vacate the conviction of possession of stolen goods, and dismiss the
ineffective assistance of counsel claims without prejudice for Defendant to file a
motion for appropriate relief with the trial court.
I. Factual and Procedural Background
On 3 October 2011, a grand jury charged Defendant with breaking and
entering a motor vehicle, financial card theft, and possession of stolen property. For
the charge of possession of stolen property, the indictment reads as follows:
And the jurors for the State upon their oath present that
on or about the date(s) of offense shown and in the county
named above the defendant named above unlawfully,
willfully, and feloniously did possess one handbag
containing personal items, one wallet, one Wachovia
debit/credit card, one social security card, one check book,
and $30.00 in United States currency.
Defendant’s case came for a jury trial 2 April 2013 in superior court. The State’s
evidence tended to show the following.
Sabrina McMasters, a service manager for Wells Fargo, testified as follows:
On 12 May 2011, while taking her daughter to daycare in Trinity, North Carolina,
from her home in Greensboro, it began to rain. At approximately 8 a.m., she parked
in a small parking lot in front of the building. Because of the rain, she rushed to get
her daughter inside of the daycare center which took five to eight minutes.
-2-
STATE V. SELLERS
Opinion of the Court
On her return, the glove box was open and her pocketbook, containing her
driver’s license, checkbook, social security card, house keys, pictures of her daughter,
and a debit card, was missing. McMasters ran into the daycare office and called the
police. Approximately ten minutes later, Officer Andrews arrived.
Billy Andrews, a police officer for the City of Archdale, responded to a larceny
call at Trendel Children’s Center. When he arrived at 8:20 a.m., he saw McMasters
standing next to her vehicle, a white Dodge Durango, crying. McMasters told him
her pocketbook, containing bank cards, two checkbooks, and three social security
cards was stolen.
After this conversation, McMasters called her bank to report her debit card
had been stolen. The bank’s records showed recent purchases on her card at a gas
station, The Pantry, and Food Lion. McMasters drove to The Pantry, where she spoke
with the owner, Andrew Lee. After she explained her circumstances, she searched
around the store, but she did not find her pocketbook or any of its contents. She then
drove to Food Lion, where she walked around the premises to search for her
pocketbook. She found nothing.
McMasters told Officer Andrews her debit card was used that morning. The
bank reported someone swiped McMasters’ debit card at Food Lion at 8:16 a.m. and
subsequently at The Pantry around 8:34 a.m. to purchase gas and to make a cash
withdrawal. Officer Andrews testified Suzie Sellers, a daycare employee, informed
-3-
STATE V. SELLERS
Opinion of the Court
him she saw a white man in his forties that morning sitting across the street from
the daycare and smoking a cigarette. No other daycare employees reported any
unusual activity at or around the daycare that morning.
Later that afternoon, David Jones, a sergeant in investigations with the City
of Archdale, began investigating McMasters’ file. His investigation revealed someone
swiped McMasters’ debit card at a Food Lion at 8:16 a.m. for $114. This Food Lion is
located one-half mile from Defendant’s home. At 8:34 a.m., the debit card was at The
Pantry for $40.01 to buy gasoline. Someone then attempted to use the card inside
the store to make a withdrawal from the ATM, but that withdrawal was unsuccessful.
Detective Jones obtained a surveillance video from The Pantry dated 12 May
2011 and played a copy of the video for the jury. The video is not contained in the
record on appeal. The next day, Detective Jones went to Defendant’s house, and
questioned him about these events. Defendant explained he was home alone that
day, and had been home alone for two weeks due to a medical issue. Hanging on the
banister just inside the front door of Defendant’s townhome, Detective Jones saw a
green baseball cap. He recognized the cap from the surveillance video from The
Pantry. During this discussion, Detective Jones obtained a lottery ticket from the
Defendant’s person which was purchased at 10 a.m. on 13 May 2011, during the time
which Defendant said he did not leave his home. Detective Jones did not attempt to
obtain surveillance video from Food Lion because “Food Lion is one of the tougher
-4-
STATE V. SELLERS
Opinion of the Court
businesses to get video from and to work with.” He said it generally takes six months
to one year to obtain video from Food Lion.
Describing the video from The Pantry, Detective Jones explained Defendant
placed two fruit drinks on the counter in front of Lee. In the video, Defendant
attempted to pay. At that time, Lee and Defendant discussed tornado damage in
Alabama and scratch off tickets. Defendant asked for a $100 gift card, but Lee
refused because he would only accept cash. Lee told Defendant he needed to use the
ATM. At that time, the time stamp on the video showed it was 8:34 a.m. Defendant
walked away from the counter and out of the screen, presumably toward the ATM.
Defendant left the store without returning to the counter to make a purchase.
The State rested. At that time, Defendant moved to dismiss all charges
because the State failed to meet its burden. The court denied Defendant’s motion.
Defendant testified on his own behalf. Defendant works part-time at Kohl’s
and Bitlocks and is a pastor at the Second Chance Community Mission. Defendant
had prostate surgery 27 April 2011, and returned to the doctor to have his staples
removed 4 May 2011.
Defendant went to The Pantry on the morning of 12 May 2011, shortly after
his wife left for work. Defendant missed Mother’s Day because of his surgery, so he
went to The Pantry to get his wife a gift card as well as a drink and a newspaper for
himself. At the register, Defendant spoke with Lee, who he knows personally.
-5-
STATE V. SELLERS
Opinion of the Court
Defendant goes to The Pantry every Thursday or Friday to cash his check. When Lee
told him he could not purchase a gift card unless he paid with cash, Defendant left
the store through the back door near the drink machine. Defendant drove home and
remained at home for the rest of the day. On cross-examination, Defendant agreed
he misled the police by telling them he did not leave his house that day. The defense
rested.
Lee, the owner of The Pantry, testified for the State in rebuttal. Lee
remembered Defendant coming into his store on 12 May 2011. He remembers
Defendant attempting to use someone else’s card that day, but the transaction was
denied. Lee knows Defendant, whose first name is Kelvin. The name on the card
was not Kelvin, but he does not remember the name on the card.
The Defendant renewed his motion to dismiss at the close of all of the evidence.
The trial court granted Defendant’s motion as to breaking and entering a motor
vehicle, but denied the motion as to possession of stolen goods and financial card
theft. The jury returned guilty verdicts for financial card theft and misdemeanor
possession of stolen goods.
Subsequently, the trial court dismissed the jury. The court stated:
At this juncture it’s a transcript of plea to fill out whether
or not you are – attained a habitual felon status. I will be
perfectly honest with you. You can contest that if you
wanted to. You can contest it and say I am not a habitual
felon. State’s going to bring a clerk up or either he is going
to – the DA’s going to admit your prior convictions where
-6-
STATE V. SELLERS
Opinion of the Court
you have been charged with an offense, convicted of an
offense, charged with another offense, convicted of it,
charged with another offense, and then convicted of it.
We can have a hearing on that or you can just fill out a
transcript of the plea acknowledging or admitting or
pleading guilty to being a habitual felon and then the
Court’s going to sentence you. It’s up to you.
You want to go ahead and admit that you are a habitual
felon or do you want to have a trial on that?
Defendant’s trial attorney, Biggs, accepted the plea on behalf of Defendant. Then,
the following exchange occurred:
The Court: Are you satisfied with your lawyer’s services?
Defendant: At this point right now going to prison I am not
satisfied.
The Court: Whether you are satisfied or not, do you still
want to enter this plea to being habitual felon.
Defendant: Yes.
Defendant stipulated there was a factual basis for the plea. Judge L. Todd Burke
entered judgment against Defendant on 2 April 2013, sentencing him to 76 to 104
months imprisonment. The same day, Judge V. Bradford Long entered a corrected
judgment against Defendant, correcting the maximum sentence to 101 months.
Defendant asked for an appellate defender, but did not file a timely written notice of
appeal.
II. Jurisdiction
-7-
STATE V. SELLERS
Opinion of the Court
Defendant filed a pro se handwritten petition for writ of certiorari on 27 March
2015. This Court granted certiorari for the purpose of “reviewing the judgment
entered on 2 April 2013 by Judge L. Todd Burke.” We amend our grant of certiorari
to include review of the judgment entered 2 April 2013 by Judge V. Bradford Long, a
judgment entered to correct a clerical error in sentencing from the previous judgment
entered by Judge L. Todd Burke.
III. Standard of Review
This Court reviews the denial of a motion to dismiss de novo. State v. Smith,
186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). Upon a defendant’s motion for
dismissal, the question for the trial 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)
(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, 78–79, 265 S.E.2d 164, 169 (1980). Upon review of a
motion to dismiss, we review all of the evidence, including circumstantial evidence,
in the light most favorable to the State. State v. Mann, 355 N.C. 294, 301, 560 S.E.2d
776, 781 (2002), cert. denied, 537 U.S. 10085, 154 L. Ed. 2d 403 (2002).
-8-
STATE V. SELLERS
Opinion of the Court
We also review the sufficiency of an indictment de novo. State v. McKoy, 196
N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009). Where an indictment is allegedly
facially invalid, the indictment may be challenged at any time, even if it was
uncontested in the trial court. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326,
341 (2000), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000).
IV. Analysis
A. Financial Card Theft
A person is guilty of financial transaction card theft if he “[t]akes, obtains or
withholds a financial transaction card from the person, possession, custody or control
of another without the cardholder’s consent and with the intent to use it[.]” N.C. Gen.
Stat. § 14-113.9(a)(1) (2015). Defendant contends the evidence was insufficient to
prove Defendant took or obtained Ms. McMasters’ financial transaction card with the
intent to use it. The surveillance video, Defendant argues, places Defendant in The
Pantry at the time the card was used, but does not show him using the ATM.
The theft charges here relate to a card stolen from McMasters, the card’s
rightful owner. The evidence presented at trial tended to show that someone stole
the card from McMasters’ car the morning of 12 May 2011. The same day, someone
other than McMasters swiped the card at Food Lion and The Pantry. The State
presented surveillance video from The Pantry showing Defendant in the store at the
time the card was swiped. Lee testified Defendant attempted to use a card with
-9-
STATE V. SELLERS
Opinion of the Court
another person’s name on its face. Viewing the evidence in the light most favorable
to the State, the State presented sufficient evidence Defendant obtained the card from
McMasters without her consent and with intent to use the card. The trial court did
not err by denying the Defendant’s motion to dismiss and allowing the charge to
proceed to the jury.
B. Possession of Stolen Goods
As with all courts, both trial and appellate, the initial duty of a judge is to
determine whether the court has jurisdiction. Whether it is by motion to dismiss
from one of the parties or by the court sua sponte, this initial responsibility of the
court stems from the duty of the courts to provide the efficient and fair administration
of justice. If the parties to a litigation are put to the expense of a trial on issues in
which the court lacks the authority to determine, the time and cost of the proceedings
and other scarce judicial resources are misapplied.
In a trial or appellate court setting, the burden of establishing jurisdiction is
placed upon the party seeking to invoke the trial court’s jurisdiction. See Marriott v.
Chatham County, 187 N.C. App. 491, 494, 654 S.E.2d 13, 16 (2007), appeal denied,
362 N.C. 472, 666 S.E.2d 122 (2008). “[I]t is [appellant’s] burden to produce a record
establishing the jurisdiction of the court from which appeal is taken, and his failure
to do so subjects [the] appeal to dismissal.” State v. Phillips, 149 N.C. App. 310, 313–
314, 560 S.E.2d 852, 855 (2002). “When the record shows a lack of jurisdiction in the
- 10 -
STATE V. SELLERS
Opinion of the Court
lower court, the appropriate action on the part of the appellate court is to arrest
judgment or vacate any order entered without authority.” State v. Felmet, 302 N.C.
173, 176, 273 S.E.2d 708, 711 (1981). “When the record is silent and the appellate
court is unable to determine whether the court below had jurisdiction, the appeal
should be dismissed.” Id. at 176, 273 S.E.2d at 711.
A court must have subject matter jurisdiction in order to decide a case. In re
T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790 (2006). “Subject matter jurisdiction is
the indispensable foundation upon which valid judicial decisions rest, and in its
absence a court has no power to act[.]” Id. (citing Hart v. Thomasville Motors, Inc.,
244 N.C. 84, 90, 92 S.E.2d 673, 678 (1956)). As a result, subject matter jurisdiction
may be raised at any time, whether at trial or on appeal, ex mero motu. See In re
S.F., 190 N.C. App. 779, 781–782, 660 S.E.2d 924, 926 (2008). “A party may not waive
jurisdiction, and a court has inherent power to inquire into, and determine, whether
it has jurisdiction and to dismiss an action ex mero motu when subject matter
jurisdiction is lacking.” Reece v. Forga, 138 N.C. App. 703, 705, 531 S.E.2d 881, 882
(2000).
“Except in misdemeanor cases initiated in the District Court Division, no
person shall be put to answer any criminal charge but by indictment, presentment,
or impeachment.” N.C. Const. art. 1, § 22. An indictment must charge the “essential
elements of the offense” to confer subject matter jurisdiction. State v. Snyder, 343
- 11 -
STATE V. SELLERS
Opinion of the Court
N.C. 61, 65, 468 S.E.2d 221, 224 (1996) (citation omitted). “[T]he evidence in a
criminal case must correspond with the allegations of the indictment which are
essential and material to charge the offense.” State v. Walston, 140 N.C. App. 327,
334, 536 S.E.2d 630, 635 (2000). The purpose of an indictment is to give defendant
reasonable notice of the charges against him so that he may prepare for his upcoming
trial. State v. Campbell, __ N.C. __, __, 772 S.E.2d 440, 443 (2015) (citing State v.
Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981)). “North Carolina law has
long provided that there can be no trial, conviction, or punishment for a crime without
a formal and sufficient accusation.” State v. Marshall, 188 N.C. App. 744, 748, 656
S.E.2d 709, 712 (2008) (citation and internal quotation marks omitted).
Knowing possession of stolen property valued at not more than $1000 is a
misdemeanor. N.C. Gen. Stat. § 14-71.1, 14-72(a) (2015). The elements of possession
of stolen goods are: “(1) possession of personal property; (2) which has been stolen, (3)
the possessor knowing or having reasonable grounds to believe the property to have
been stolen; and (4) the possessor acting with a dishonest purpose.” State v. Tanner,
364 N.C. 229, 232, 695 S.E.2d 97, 100 (2010) (quoting State v. Perry, 305 N.C. 225,
233, 287 S.E.2d 810, 815 (1982)).
Here, the indictment states: “[T]he defendant named above unlawfully,
willfully and feloniously did possess one handbag containing personal items, one
wallet, one Wachovia debit/credit card, one social security card, one check book, and
- 12 -
STATE V. SELLERS
Opinion of the Court
$30.00 in United States currency.” The indictment does not allege the essential
elements that the listed personal property was stolen or that Defendant knew or had
reason to know the property was stolen, creating a facial defect in the indictment.
Accordingly, Defendant’s conviction for possession of stolen goods must be vacated.
C. Ineffective Assistance of Counsel
Lastly, Defendant contends the final judgment should be vacated because he
received ineffective assistance of counsel. Generally, claims of ineffective assistance
of counsel should be considered through motions for appropriate relief and not
directly on appeal. State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001)
(citations omitted). “Our Supreme Court has instructed that should the reviewing
court determine the [ineffective assistance of counsel] claims have been prematurely
asserted on direct appeal, it shall dismiss those claims without prejudice to the
defendant's rights to reassert them during a subsequent MAR proceeding.” Id. at
554, 557 S.E.2d at 547 (internal quotation marks and citation omitted). Therefore,
we dismiss this claim without prejudice to the right of Defendant to file a motion for
appropriate relief with the trial court.
V. Conclusion
For the foregoing reasons, we find no error in part, vacate in part, and dismiss
in part without prejudice.
NO ERROR IN PART; VACATE IN PART; DISMISS IN PART.
- 13 -
STATE V. SELLERS
Opinion of the Court
Judges ELMORE and DAVIS concur.
- 14 -