State v. McKoy

• Court: Court of Appeals of North Carolina
• Decided: June 1, 2021
• Docket: 20-452
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-237

No. COA20-452

Filed 1 June 2021

Franklin County, No. 16CRS051676

STATE OF NORTH CAROLINA

v.

SHAWN MARTEZ MCKOY

Appeal by Defendant from judgment and order entered 22 May 2019 by Judge

Cy A. Grant, Sr., in Franklin County Superior Court. Heard in the Court of Appeals

14 April 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Carole Biggers and Assistant Attorney General Eric R. Hunt, for the State-Appellee.

The Green Firm, PLLC, by Bonnie Keith Green, for Defendant-Appellant.

COLLINS, Judge.

¶1 Defendant, Shawn Martez McKoy, appeals a judgment entered upon his

conviction of felony larceny and an order for restitution. Defendant argues that the

trial court: (1) plainly erred by permitting the State’s four witnesses to offer lay

opinions identifying an individual depicted in surveillance footage as Defendant;

(2) erred by denying Defendant’s motion to dismiss for insufficient evidence; and,

(3) erred by failing to consider Defendant’s ability to pay before ordering restitution. STATE V. MCKOY

Opinion of the Court

The trial court did not err in admitting one witness’ identification of Defendant and

did not plainly err in admitting identifications by the other witnesses. Because there

was substantial evidence of each element of felony larceny and Defendant’s identity

as the perpetrator, the trial court did not err in denying Defendant’s motion to

dismiss. The trial court did not fail to consider Defendant’s ability to pay prior to

ordering restitution, and therefore did not abuse its discretion.

I. Procedural History

¶2 On 20 February 2017, Defendant was indicted on two counts of felony larceny.

Defendant was tried before a jury in Franklin County Superior Court on 21 and 22

May 2019. At the close of the State’s evidence, Defendant moved to dismiss both

charges for insufficient evidence. The trial court denied Defendant’s motion.

Defendant did not present any evidence and renewed his motion to dismiss, which

the trial court again denied. The jury returned a verdict of guilty on the first count

of felony larceny and not guilty on the second count. The trial court sentenced

Defendant to 11 to 23 months in prison and ordered Defendant to pay $3,200 in

restitution. Defendant gave timely notice of appeal in open court.

II. Factual Background

¶3 In August 2016, William Mitchell owned and operated a catering company in

Louisburg, North Carolina, adjacent to a Sheetz gas station. Mitchell owned a trailer

containing various catering equipment used for his business and stored the trailer on STATE V. MCKOY

the business’s property adjacent to the Sheetz. Mitchell testified that he purchased

the trailer near the end of 2014 for “[s]omewhere in the vicinity of $3500.”

¶4 Mitchell last saw the trailer around 1 August 2016. In the last week of August

2016, he drove past the property and saw that the trailer was gone. He contacted the

Louisburg Police Department and Detective Clifford Stephens met with Mitchell at

the property.

¶5 Stephens examined the lot where the trailer was kept and found no physical

evidence other than tire drag marks over a curb. He then requested that Cindy

Jackson, a manager at the Sheetz, permit him to access the surveillance footage

recorded by the store’s multiple cameras. Jackson allowed Stephens to review the

footage, and Mitchell joined him. Stephens determined that the trailer was removed

on the night of 25 August 2016 and asked Jackson to provide him with recordings

taken from multiple cameras during a specific 15-minute time frame (“Sheetz

Footage”). Jackson requested the Sheetz Footage from the Sheetz security office,

which delivered a DVD containing it to Jackson. Jackson then provided the DVD to

Stephens.

¶6 Both Mitchell and Stephens took still images of an individual depicted in the

Sheetz Footage to show to their contacts. Stephens sent an image to Troy Wheeless,

an agent with the North Carolina Department of Motor Vehicles license and theft

bureau. Wheeless identified Defendant as the individual in the image. Mitchell also STATE V. MCKOY

compared a picture of Defendant from a DMV website or other government database

with the still that he took from the Sheetz Footage and concluded that Defendant was

the individual in the Sheetz Footage.

¶7 Mitchell, Jackson, Stephens, and Wheeless each testified for the State at trial.

During direct examination of Stephens, the State played multiple portions of the

Sheetz Footage for the jury. Mitchell described the Sheetz Footage as showing, at

approximately 9:00 p.m. on 25 August: (1) an extended-cab silver truck pulling in to

the Sheetz parking lot and parking in front of the store; (2) an individual getting out

of the driver’s side of the truck and “hesitat[ing] as he appears to look over at the

trailer”; (3) that individual, a “black male, average height, average weight, beard,

mustache, close cut hair, a red shirt and khaki pants[,]” walking into the entryway of

the Sheetz; (4) the individual walking through a hallway to the store’s bathroom;

(5) the individual returning to the truck, starting it, and beginning to drive off; (6) the

truck leaving the Sheetz parking lot, and exiting the view of the cameras, in the

direction of the property where the trailer was stored; and, (7) the truck later

returning to the view of the cameras and pulling out with the trailer in tow. The

video did not show anyone else getting into or out of the truck while it was on the

Sheetz property.

¶8 At trial, Mitchell, Jackson, Stephens, and Wheeless each identified the

individual depicted in the Sheetz Footage as Defendant. Defendant raised only a STATE V. MCKOY

general objection to the identification by Jackson and did not object to the

identifications by the other three witnesses.

¶9 The jury found Defendant guilty of larceny of the trailer, but not guilty of

larceny of the catering equipment within the trailer. The trial court entered

judgment and ordered restitution. Defendant appeals.

III. Discussion

A. Lay Witness Identifications

¶ 10 Defendant argues that the trial court erred by permitting the State’s witnesses

to give lay opinion testimony identifying Defendant as the individual pictured in the

Sheetz Footage.

¶ 11 Defendant acknowledges that he raised only a general objection to the

identification by Jackson and did not object to the identifications by Mitchell,

Stephens, and Wheeless. As Defendant concedes, the issue of whether the

identifications were properly admitted is not preserved for appellate review. See N.C.

R. App. P. 10(a)(1) (“[I]n order to preserve an issue for appellate review, a party must

have presented to the trial court a timely request, objection, or motion, stating the

specific grounds for the ruling the party desired the court to make if the specific

grounds were not apparent from the context.”); State v. Jones, 342 N.C. 523, 535, 467

S.E.2d 12, 20 (1996) (“A general objection, when overruled, is ordinarily not adequate

unless the evidence, considered as a whole, makes it clear that there is no purpose to STATE V. MCKOY

be served from admitting the evidence.”).

¶ 12 Notwithstanding Defendant’s failure to properly preserve this issue, because

Defendant specifically and distinctly contends that the admission of the

identifications amounted to plain error, we will review the trial court’s admission of

the identifications for plain error. See N.C. R. App. P. 10(a)(4) (“In criminal cases, an

issue that was not preserved by objection noted at trial and that is not deemed

preserved by rule or law without any such action nevertheless may be made the basis

of an issue presented on appeal when the judicial action questioned is specifically and

distinctly contended to amount to plain error.”).

¶ 13 “For error to constitute plain error, a defendant must demonstrate that a

fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 334 (2012) (citation omitted). “To show that an error was fundamental,

a defendant must establish prejudice—that, after examination of the entire record,

the error ‘had a probable impact on the jury’s finding that the defendant was guilty.’”

Id. (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). The plain

error rule “is always to be applied cautiously and only in the exceptional case . . . .”

Odom, 307 N.C. at 660, 300 S.E.2d at 378 (citation omitted).

¶ 14 “Under the North Carolina Rules of Evidence, the jury is charged with

determining what inferences and conclusions are warranted by the evidence.” State

v. Buie, 194 N.C. App. 725, 730, 671 S.E.2d 351, 354 (2009) (citation omitted). STATE V. MCKOY

“Ordinarily, opinion evidence of a non-expert witness is inadmissible because it tends

to invade the province of the jury.” State v. Fulton, 299 N.C. 491, 494, 263 S.E.2d

608, 610 (1980). A lay witness’s “testimony in the form of opinions or inferences is

limited to those opinions or inferences which are (a) rationally based on the

perception of the witness and (b) helpful to a clear understanding of his testimony or

the determination of a fact in issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2019).

¶ 15 A lay witness may not give an opinion as to the identity of an individual

depicted in surveillance images where the witness is “in no better position than the

jury to identify [the defendant] as the person in the surveillance [images] . . . .” State

v. Belk, 201 N.C. App. 412, 414, 689 S.E.2d 439, 441 (2009). In determining whether

a lay witness is sufficiently qualified to give an opinion on the identity of a person

depicted in surveillance images, we consider (1) the witness’s general level of

familiarity with the defendant’s appearance; (2) the witness’s specific familiarity with

the defendant’s appearance at the time the surveillance was taken, or at a time when

the defendant was dressed in a similar manner to the individual in the surveillance;

(3) whether the defendant had disguised his appearance at the time of the offense;

(4) whether the defendant had altered his appearance before trial; and (5) the clarity

of the surveillance images and the completeness with which the individual was

depicted. State v. Hill, 247 N.C. App. 342, 346, 785 S.E.2d 178, 181-82 (2016); State

v. Collins, 216 N.C. App. 249, 256, 716 S.E.2d 255, 260 (2011). STATE V. MCKOY

¶ 16 At trial, only Wheeless indicated that he had a general familiarity with

Defendant. Wheeless testified that he was “familiar with” Defendant, had “previous

dealings” with Defendant, and had “been in his personal presence[,]” even though

“[p]robably weeks” had passed between the last time Wheeless saw Defendant and

the day he identified Defendant in the still image provided by Stephens. Mitchell,

Jackson, and Stephens each had no familiarity with Defendant’s appearance prior to

seeing him in the Sheetz Footage. Mitchell testified that he did not know Defendant,

nor did he have any contact with Defendant after the trailer was taken. Stephens

testified that he had not seen Defendant in person prior to trial. Jackson offered no

testimony indicating that she was familiar with Defendant.

¶ 17 None of the State’s witnesses testified to their specific familiarity with

Defendant’s appearance at the time the trailer was taken, or with his appearance

when dressed in a manner similar to the individual depicted in the Sheetz Footage.

No evidence was presented that the individual in the Sheetz Footage had used a

disguise, or that Defendant had altered his appearance between 25 August 2016 and

trial. Finally, there is no indication of any defect in the clarity of the Sheetz Footage,

and there are multiple instances in which the footage shows the individual in his

entirety as he walks through the view of the store’s cameras.

¶ 18 The admissibility of Wheeless’s testimony is controlled by this Court’s decision

in State v. Collins. In that case, the defendant argued that the trial court plainly STATE V. MCKOY

erred by admitting an officer’s lay opinion identifying the defendant as the person

depicted in a surveillance video. Collins, 216 N.C. App. at 254, 716 S.E.2d at 259.

The officer testified only that he “had had dealings” with the defendant. Id. at 256,

716 S.E.2d at 261. This Court stated that “[w]e believe ‘dealings’ mean more than

minimal contacts . . . however, we do note defense counsel could have questioned

these ‘dealings,’ if so desired.” Id. at 257, 716 S.E.2d at 261. Based on the officer’s

testimony concerning “dealings” with the defendant, this Court concluded that the

officer “was familiar with defendant and would be in a better position than the jury

to identify defendant in the videotape.” Id.

¶ 19 Similarly, Wheeless testified that he had “previous dealings” with Defendant.

Wheeless also testified that he was “familiar with” Defendant and had “been in his

personal presence[.]” Defendant did not question the basis of Wheeless’s claimed

familiarity or the scope of these “dealings” on cross examination. Accordingly,

Wheeless was qualified to give lay opinion testimony identifying the individual in the

Sheetz Footage as Defendant. The admission of Wheeless’s testimony was not error,

let alone plain error.

¶ 20 No evidence, however, supported a conclusion that Mitchell, Jackson, or

Stephens were qualified to provide lay opinion testimony identifying Defendant as

the individual in the Sheetz Footage. The trial court erred by admitting their

identifications of Defendant. STATE V. MCKOY

¶ 21 Defendant contends that but for these erroneous identifications, “there was no

evidence that [Defendant] committed the crime or was at the Sheetz store, and the

jury likely would not have convicted him.” We disagree.

¶ 22 Defendant emphasizes that the trial court “instructed the jury that the video

and screen shots were admitted only for the purpose of illustrating and explaining

the witnesses’ testimony.” The DVD containing the Sheetz Footage was admitted

“generally into evidence” by the trial court. The trial court instructed the jury,

however, that “[p]hotographs and a video were introduced into evidence in this case

for the purpose [of] illustrating and explaining the testimony of a witness. These

photographs and video may not be considered by you for any other purpose.”

Nonetheless, as discussed above, Wheeless’s identification of Defendant was based on

his prior familiarity with Defendant and was properly admitted. The jury was

permitted to consider the Sheetz Footage as illustrative of Wheeless’s identification

and assess the accuracy of Wheeless’s identification.

¶ 23 Additionally, the State introduced several still images for the jury’s

consideration. Among these were State’s Exhibit 5, “a picture of a gentlemen [sic] at

the men’s and women’s restroom,” and State’s Exhibit 7, a known photograph of

Defendant in 2014 taken from a DMV or other government database. During

examination of both Stephens and Wheeless, State’s Exhibit 5 and State’s Exhibit 7

were published to the jury simultaneously. The jurors therefore had an opportunity STATE V. MCKOY

to compare the images and draw their own conclusion as to whether Defendant was

the individual in the Sheetz.

¶ 24 Because the admission of Wheeless’s identification was not erroneous, the

Sheetz Footage illustrated Wheeless’s identification and permitted the jury to assess

its accuracy, and the jury had the opportunity to draw its own conclusions based on

still images admitted into evidence, we cannot conclude that the erroneous admission

of identifications by Mitchell, Stephens, and Jackson “had a probable impact on the

jury’s finding that the [D]efendant was guilty.” See Odom, 307 N.C. at 660, 300

S.E.2d at 378. Consequently, Defendant cannot demonstrate prejudice, and the

erroneous admission of these identifications did not amount to plain error.

B. Sufficiency of the Evidence

¶ 25 Defendant next argues that the trial court erred by denying his motion to

dismiss because the evidence was insufficient to support his conviction for felony

larceny. We review a 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 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 that amount of relevant evidence necessary to persuade a

rational juror to accept a conclusion.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d

824, 826 (2015) (internal quotation marks and citation omitted). STATE V. MCKOY

In deciding whether substantial evidence exists[, t]he evidence is to 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; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.

State v. Hill, 365 N.C. 273, 275, 715 S.E.2d 841, 843 (2011) (quoting State v. Powell,

299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).

¶ 26 Defendant was convicted of felony larceny of the trailer under N.C. Gen. Stat.

§ 14-72(a). “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) (quoting State v. Reid, 334 N.C. 551, 558,

434 S.E.2d 193, 198 (1993)). “Larceny of goods of the value of more than one thousand

dollars ($1,000) is a Class H felony.” N.C. Gen. Stat. § 14-72(a) (2016).

¶ 27 Defendant argues that the evidence admitted at trial “established only that

[Defendant] was in the Sheetz store” and that “[t]here was insufficient evidence to

support an inference that the individual depicted in the Sheetz surveillance video is

the person who stole the trailer.” We disagree.

¶ 28 During the State’s case in chief, the trial court admitted the Sheetz Footage STATE V. MCKOY

into evidence, and the State played multiple clips of the footage.1 Mitchell and

Stephens extensively narrated the contents of these clips without objection. As

discussed above, each of the State’s witnesses identified Defendant as the individual

in the Sheetz Footage. Though three of these identifications were erroneously

admitted, they are still relevant in assessing a motion to dismiss. See Hill, 365 N.C.

at 275, 715 S.E.2d at 843, (requiring the court, for purposes of a motion to dismiss for

insufficient evidence, to consider “all of the evidence actually admitted, whether

competent or incompetent, which is favorable to the State”). Additionally, the trial

court admitted State’s Exhibit 5, a still image taken from the Sheetz Footage showing

the suspect outside of the Sheetz bathroom, and State’s Exhibit 7, a known image of

Defendant.

¶ 29 The evidence admitted at trial, viewed in the light most favorable to the State,

and giving the State the benefit of every reasonable inference, tended to show:

Mitchell purchased his catering trailer for approximately $3,500 in 2014. Mitchell

parked the trailer on a lot next to a Sheetz gas station in Louisburg, North Carolina.

Mitchell last saw the trailer around 1 August 2016. On the night of 25 August 2016,

an extended-cab silver truck pulled up to the front of the Sheetz. Defendant exited

1 The trial court was consequently permitted to consider the Sheetz Footage in ruling

on Defendant’s motion to dismiss, despite the subsequent inconsistent instruction that the jury was to consider the Sheetz Footage only for illustrative purposes. STATE V. MCKOY

the truck, walked into the Sheetz, and went into the bathroom. After a few minutes,

Defendant returned to the truck. Defendant drove the truck towards the exit of the

Sheetz parking lot, braked, and backed up to the adjacent property where Mitchell’s

trailer was parked. A few minutes later, Defendant drove the truck away with the

trailer in tow.

¶ 30 Defendant argues that the evidence cannot support his felony larceny

conviction because it shows only that Defendant had the opportunity to take the

trailer. It is true “that a conviction cannot be sustained if ‘[t]he most the State has

shown is that defendant had been in an area where he could have committed the

crimes charged.’” Campbell, 373 N.C. at 221, 835 S.E.2d at 848 (quoting State v.

Minor, 290 N.C. 68, 75, 224 S.E.2d 180, 185 (1976)). But crediting the in-court

identifications and giving the State the benefit of every reasonable inference, a

rational juror could conclude that Defendant was the sole occupant and driver of the

truck and, without Mitchell’s consent, hitched Mitchell’s trailer—valued at over

$1,000—to the truck and drove away with the trailer in tow, intending to deprive

Mitchell of it permanently. Accordingly, substantial evidence of each element of

felony larceny and Defendant’s identity as the perpetrator was presented. The trial

court did not err by denying Defendant’s motion to dismiss.

C. Restitution Order

¶ 31 Defendant argues that the trial court erred in ordering restitution because it STATE V. MCKOY

failed to consider Defendant’s ability to pay. Though Defendant did not object to the

award of restitution before the trial court, “a defendant’s failure to specifically object

to the trial court’s entry of an award of restitution does not preclude appellate

review.” State v. Mauer, 202 N.C. App. 546, 551, 688 S.E.2d 774, 777-78 (2010)

(citations omitted); see also N.C. Gen. Stat. § 15A-1446(d)(18) (2019).

¶ 32 “When sentencing a defendant convicted of a criminal offense, the court shall

determine whether the defendant shall be ordered to make restitution to any victim

of the offense in question.” N.C. Gen. Stat. § 15A-1340.34(a) (2019).

In determining the amount of restitution to be made, the court shall take into consideration the resources of the defendant including all real and personal property owned by the defendant and the income derived from the property, the defendant’s ability to earn, the defendant’s obligation to support dependents, and any other matters that pertain to the defendant’s ability to make restitution, but the court is not required to make findings of fact or conclusions of law on these matters.

N.C. Gen. Stat. § 15A-1340.36(a) (2019).

¶ 33 “A trial court’s judgment ordering restitution must be supported by evidence

adduced at trial or at sentencing.” State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d

911, 917 (2010) (quotation marks and citation omitted). “[T]he award does not have

to be supported by specific findings of fact or conclusions of law, and the quantum of

evidence needed to support the award is not high. Rather, when there is some

evidence that the amount awarded is appropriate, it will not be overruled on appeal.” STATE V. MCKOY

State v. Hillard, 258 N.C. App. 94, 97, 811 S.E.2d 702, 704 (2018) (citations omitted).

“Whether the trial court properly considered a defendant’s ability to pay when

awarding restitution is reviewed by this Court for abuse of discretion.” Id. at 98, 811

S.E.2d at 705.

¶ 34 During trial, Mitchell testified that he had paid “[s]omewhere in the vicinity of

$3500” for the trailer. The trial court was also informed, prior to ordering restitution,

that Defendant was near the end of an active sentence and therefore unable to

currently earn, Defendant has two children to support upon his release, and

Defendant “plan[s] to go back to school and get a trade once he leaves from custody.”

Defendant also filed an affidavit of indigency reflecting that he was in custody and

had zero assets and zero liabilities as of 22 May 2019.

¶ 35 Given the information presented to the trial court, the amount of restitution

ordered, and the terms of its payment, the trial court did not fail to consider

Defendant’s financial resources as required by section 15A-1340.36(a) and thus, did

not abuse its discretion. See State v. Tate, 187 N.C. App. 593, 597-98, 653 S.E.2d 892,

896 (2007) (finding sufficient consideration of defendant’s financial resources where

the trial court was presented with an affidavit of indigency and “was aware of

defendant’s age, employment situation, and living arrangements”); State v. Person,

187 N.C. App. 512, 531, 653 S.E.2d 560, 572 (2007) (The “relatively modest amount

of restitution and the terms of its payment are not such as to lead to a ‘common sense’ STATE V. MCKOY

conclusion that the trial court did not consider defendant’s ability to pay.”), rev’d on

other grounds, 362 N.C. 340, 663 S.E.2d 311 (2008).

IV. Conclusion

¶ 36 Because Wheeless had general familiarity with Defendant, the trial court did

not err in permitting him to identify Defendant as the individual depicted in the

Sheetz Footage. Though the trial court erred in permitting the State’s other three

witnesses to identify Defendant, in light of the other evidence presented, the trial

court did not plainly err. The trial court did not err in denying Defendant’s motion

to dismiss, and did not abuse its discretion in ordering Defendant to pay restitution.

NO ERROR IN PART; NO PLAIN ERROR IN PART.

Judges TYSON and CARPENTER concur.