State v. Manns

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2014
• Docket: 13-1324
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 -2- 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 -3- 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 -4- 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 -5- 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 -6- 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. -7- Conclusion

For the foregoing reasons, we find no error.

NO ERROR.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).