State v. Sisk

• Court: Court of Appeals of North Carolina
• Decided: October 4, 2022
• Docket: 22-154
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-657

No. COA22-154

Filed 4 October 2022

McDowell County, Nos. 18 CRS 479, 18 CRS 495

STATE OF NORTH CAROLINA

v.

STEVEN MICHAEL SISK, JR., Defendant.

Appeal by defendant from judgment entered 18 August 2021 by Judge J.

Thomas Davis in McDowell County Superior Court. Heard in the Court of Appeals 7

September 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General William A. Smith, for the State.

Stephen G. Driggers, PLLC, by Stephen G. Driggers, for the Defendant- Appellant.

CARPENTER, Judge.

¶1 Steven Michael Sisk, Jr. (“Defendant”) appeals from judgment after a jury

convicted him of felony larceny, and after he pled guilty to attaining habitual felon

status. On appeal, Defendant argues the trial court erred in refusing to provide the

jury with an instruction on attempted larceny. After careful review, we find no error.

I. Factual & Procedural Background

¶2 The State’s evidence presented at trial tended to show: On 10 September 2018, STATE V. SISK

Opinion of the Court

Lauren Hudgins was working the morning shift as a cashier in the Marion, North

Carolina “Tractor Supply” retail store. Ms. Hudgins testified that typically only three

employees work in this Tractor Supply store at a given time: a cashier, a manager,

and a receiver. That day, Ms. Hudgins observed a man walking quickly out the front

doors of the store pushing a shopping cart containing a Traveller truck winch, Ariat

boots, and a battery. At trial, Ms. Hudgins identified Defendant as the man she

observed on 10 September 2018.

¶3 The merchandise in Defendant’s shopping cart had not been purchased and

was therefore property of Tractor Supply. The anti-shoplifting devices attached to

the unpaid merchandise triggered the door alarms to sound. As she was ringing up

another customer, Ms. Hudgins called out to Defendant while he walked out of the

store, “[h]ey, you did not pay for that.” Ms. Hudgins called over the intercom for the

manager on duty, Elizabeth Cadwell, the assistant store manager. Ms. Hudgins then

called police as she followed Defendant out the door to obtain the tag number from

his vehicle. Defendant headed towards a white Suzuki Reno that was parked in a

handicap zone twenty to twenty-five feet from the front of the store.

¶4 As Defendant approached the vehicle, he opened the rear driver’s side door of

the vehicle and “th[rew the] items into the back of the car as fast as he could.” A man

was sitting in the driver’s seat of the vehicle. Defendant got into the vehicle, and “a

commotion” ensued between Defendant and the driver. Defendant got out of the STATE V. SISK

vehicle and “threw the items back on the ground and left.” Defendant got back inside

the vehicle, and the driver drove away. Using her cell phone, Ms. Hudgins took

photographs of the license plate on the Suzuki Reno.

¶5 Ms. Cadwell testified that she was in the back of the store when she heard the

alarm sound and received a call from Ms. Hudgins. She immediately headed to the

front of the store to disable the alarm, and then proceeded outside to the parking lot

as Defendant was removing the merchandise from the vehicle. As manager on duty,

Ms. Cadwell took over Ms. Hudgins’ call with the 911 operator, consistent with

Tractor Supply’s policy. As part of a report that she was compiling for the store’s

corporate office, Ms. Cadwell took photographs of the items Defendant removed from

the store. Approximately ten minutes after being dispatched, Officer Travis Maltba

(“Officer Maltba”) of the Marion Police Department arrived at the store.

¶6 Christy King testified that she was parked in the parking lot of Tractor Supply

when she witnessed a man about twenty feet away, whom she identified as Defendant

at trial, running out of the store with a shopping cart and a store employee chasing

after him. Ms. King observed Defendant: (1) throw the items in the vehicle, (2) jump

in the vehicle where he sat for several seconds, (3) exit the vehicle; (4) throw the items

down in the parking lot, and (5) get back in the vehicle. Ms. King took photographs

of Defendant from her cell phone, depicting him discarding the items on the parking

lot and getting into the vehicle. STATE V. SISK

¶7 Officer Maltba testified he observed an employee wearing a red vest whom he

later identified as Ms. Cadwell. He also observed the merchandise on the ground in

the parking lot. Officer Maltba then took statements from Ms. Cadwell and Ms. King.

Ms. Cadwell and Ms. King turned over to Officer Maltba the photographs they had

each taken, and the State admitted these photographs as exhibits at trial. Officer

Maltba had encountered Defendant “several times” in the past, and Officer Maltba

had no doubt the person in the photographs taken by the witnesses was Defendant.

After generating a report and completing his investigation, Officer Maltba sought and

received a warrant for Defendant’s arrest for misdemeanor larceny.

¶8 On 18 September 2018, Defendant was indicted on the charges of misdemeanor

larceny, in violation of N.C. Gen. Stat § 14-72(a), and attaining habitual felon status,

in violation of N.C. Gen. Stat. § 14-7.1. On 17 May 2021, a McDowell County grand

jury returned a superseding indictment for the charge of felony larceny, pursuant to

N.C. Gen. Stat. § 14-72(b)(6). The superseding indictment alleged Defendant had

unlawfully, willfully, and feloniously been convicted of four misdemeanor larceny

offenses prior to committing the 10 September 2018 offense.

¶9 On 17 August 2021, a jury trial commenced before the Honorable J. Thomas

Davis in McDowell County Superior Court. During the charge conference, counsel

for Defendant “ask[ed] the court to allow the jury to consider the lesser charge of

attempted larceny,” considering Defendant was not apprehended on Tractor Supply STATE V. SISK

property. The trial court denied the request, finding there was “no conceivable way

that the jury could, based on th[e] evidence, not find that the State has not shown

substantial evidence as to each of the elements of the completed [larceny].” Defense

counsel objected to the ruling.

¶ 10 The jury returned a unanimous verdict of guilty as to the misdemeanor larceny

charge. Defendant admitted to having four prior misdemeanor larceny convictions,

and he pled guilty to attaining the status of habitual felon. The trial court sentenced

Defendant to a minimum of 100 months and a maximum of 132 months with the

North Carolina Department of Correction. After the judgment was announced,

Defendant gave oral notice of appeal in open court.

II. Jurisdiction

¶ 11 The Court has jurisdiction to address Defendant’s appeal from a final judgment

pursuant to N.C. Gen. Stat. § 7A-27(b) (2021) and N.C. Gen. Stat. § 15A-1444(a)

(2021).

III. Issue

¶ 12 The sole issue before this Court is whether the trial court erred in refusing to

include a jury instruction on the lesser included offense of attempted larceny where

there is clear and positive evidence as to each element of larceny.

IV. Standard of Review

¶ 13 The Court “review[s] the trial court’s denial of the request for an instruction STATE V. SISK

on the lesser included offense de novo.” State v. Laurean, 220 N.C. App. 342, 345,

724, S.E.2d 657, 660 (2012) (emphasis added), disc. rev. denied, 366 N.C. 241, 731

S.E.2d 416. “Under a de novo review, [this C]ourt considers the matter anew and

freely substitutes its own judgment for that of the lower tribunal.” State v. Biber, 365

N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citations and quotation marks omitted).

V. Analysis

¶ 14 On appeal, Defendant argues that in viewing the evidence in the light most

favorable to Defendant, “a rational juror could conclude from the evidence presented

at trial that his actions fell short of a completed larceny” where Defendant left the

items in the parking lot of Tractor Supply, approximately twenty-five feet from the

front door of the store. He further argues there would have been evidence that the

larceny was completed if he had been apprehended in the parking lot. The State

contends “the evidence was clear and positive as to the charge of larceny,” and thus,

the trial court properly declined to include a jury instruction for attempted larceny.

After careful review, we agree with the State.

¶ 15 “In North Carolina, a trial judge must submit lesser included offenses as

possible verdicts, even in the absence of a request by the defendant, where sufficient

evidence of the lesser offense is presented at trial.” State v. Lowe, 150 N.C. App. 682,

686, 564 S.E.2d 313, 316 (2002) (citation omitted). However, “[w]here the State’s

evidence is clear and positive as to each element of the offense charged and there is STATE V. SISK

no evidence showing the commission of a lesser included offense, it is not error for the

judge to refuse to instruct on the lesser offense.” State v. Peacock, 313 N.C. 554, 558,

330 S.E.2d 190, 193 (1985) (citation omitted); see also State v. Broome, 136 N.C. App.

82, 88, 523 S.E.2d 448, 453 (1999) (explaining an attempt charge is not required

where “the State’s evidence tends to show completion of the offense” and “there is no

conflicting evidence relating to the elements of the crime charged”), disc. rev. denied,

351 N.C. 362, 543 S.E.2d 136 (2000). “When determining whether there is sufficient

evidence for submission of a lesser included offense to the jury, [this Court] view[s]

the evidence in the light most favorable to the defendant.” State v. Ryder, 196 N.C.

App. 56, 64, 674 S.E.2d 805, 811 (2009) (citation omitted).

¶ 16 In this case, the trial court instructed the jury only on the offense of larceny

and declined to instruct on any lesser included offense. “Larceny has been defined as

a wrongful taking and carrying away of the personal property of another without his

consent, . . . with intent to deprive the owner of his property and to appropriate it to

the taker’s use fraudulently.” State v. Carswell, 296 N.C. 101, 103, 249 S.E.2d 427,

428 (1978) (citation and quotation marks omitted). The elements of common law

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. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982),

overruled in part on other grounds by State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 STATE V. SISK

(2010).

¶ 17 The element of “taking” requires the accused have the goods “in his possession,

or under his control, even if only for an instant.” Carswell, 296 N.C. at 104, 249

S.E.2d at 429 (citation omitted) (defining “taking” as the “severance of the goods from

the possession of the owner”). Our Supreme Court has made clear that “proof of

asportation[, or carrying away,] is required for [a] larceny charge,” although proof

that the defendant is in possession of the stolen property after the larceny was

completed is not required. Perry, 305 N.C. at 234, 287 S.E.2d at 815. Asportation,

does not require “that the property be completely removed from the premises of the

owner.” State v. Walker, 6 N.C. App. 740, 743, 171 S.E.2d 91, 93 (1969). Rather, “[a]

bare removal from the place in which he found the goods, though the thief does not

quite make off with them, is a sufficient asportation, or carrying away.” Carswell,

296 N.C. at 103, 249 S.E.2d at 428 (citation omitted).

¶ 18 Here, Defendant quickly passed Tractor Supply’s last point of sale and walked

out of the front doors pushing a shopping cart containing unpaid merchandise.

Defendant unloaded the items into his vehicle. During this period, Defendant

possessed and controlled the goods, thereby severing the goods from the possession of

Tractor Supply for a duration of time. See id. at 104, 249 S.E.2d at 429. Thus, the

element of “taking” was completed. See Perry, 305 N.C. at 233, 287 S.E.2d at 815.

¶ 19 Defendant’s carrying away of the goods is evidenced by his pushing the STATE V. SISK

shopping cart out the door after a store cashier told him that the goods were not paid

for and after an anti-theft alarm sounded. See id. at 233, 287 S.E.2d at 815. To

satisfy the element of “carrying away,” it was not required that Defendant leave

Tractor Supply’s premises with the items or that he continued to possess the items

after he completed the larceny. See Walker, 6 N.C. App. at 743, 171 S.E.2d at 93;

Perry, 305 N.C. at 234, 287 S.E.2d at 815.

¶ 20 Tractor Supply did not give Defendant permission to leave with the unpaid

goods. Conversely, the record tends to show Ms. Hudgins called after Defendant to

pay for the items as he left the store and chased him when he did not respond.

Therefore, the element of “without the owner’s consent” was satisfied. See Perry, 305

N.C. at 233, 287 S.E.2d at 815.

¶ 21 Finally, Defendant’s intent to permanently deprive Tractor Supply of the items

is shown by his refusal to stop when Ms. Hudgins advised he had not paid for the

goods and after the door alarms went off. Defendant’s intent is further shown by his

loading the goods into his companion’s vehicle. The intent element was completed

even though he ultimately left the items on Tractor Supply’s premises, apparently

due to the driver’s reaction. See id. at 233, 287 S.E.2d at 815.

¶ 22 Defendant attempts to distinguish the instant case from the unpublished

decision of State v. Boyd, No. COA19-543, 2020 N.C. App. LEXIS 156 (N.C. Ct. App.

Feb. 18, 2020) (unpublished). In Boyd, our Court held the trial court did not err in STATE V. SISK

refusing to instruct on the lesser included offense of attempted larceny. Id. at *12.

There, the defendant took another’s gaming system and dropped it while running

away with it. Id. We reasoned the defendant’s taking and carrying away of the item

was sufficient to show the larceny was complete, although the defendant did not know

where he lost it. Id.

¶ 23 Defendant seemingly argues that because he knowingly left the Tractor Supply

merchandise in the parking lot, unlike the defendant in Boyd who accidently dropped

the stolen item, that Defendant only attempted to commit the offense of larceny. We

disagree. As discussed above, the larceny was completed before Defendant removed

the items from the vehicle and abandoned them.

¶ 24 Defendant also asserts this case is factually similar to two unpublished cases

in which the State charged the defendants with attempted larceny. See State v.

Evans, No. COA12-224, 2012 N.C. App. LEXIS 1127 (N.C. Ct. App. Oct. 2, 2012)

(unpublished); State v. Carter, No. COA09-609, 2010 N.C. App. LEXIS 381 (N.C. Ct.

App. Mar. 2, 2010) (unpublished). Defendant further argues Evans and Carter are

on point where the defendants challenged the trial courts’ denials of their motions to

dismiss, and the evidence was viewed in the light most favorable to the State.

Contrary to this assertion, Defendant contends this case is distinguishable from State

v. Carswell because the defendant in Carswell was appealing the denial of a motion

for nonsuit, and the evidence was considered in the light most favorable to the State. STATE V. SISK

This argument is without merit.

¶ 25 In Evans, our Court considered whether the trial court properly denied the

defendant’s motion to dismiss based on sufficiency of the evidence. Evans, No.

COA12-224, 2012 N.C. App. LEXIS 1127, *3. The circumstantial evidence presented

by the State tended to show the defendant removed security tags from two comforters

in a Macy’s department store. Id. at *2–3. Defendant was carrying these two

comforters in the store when he dropped them and ran out of the store. Id. at *2. We

held the State presented sufficient evidence that the defendant attempted to steal the

comforters; therefore, the trial court properly denied the defendant’s motion to

dismiss. Id. at *7.

¶ 26 Similarly, in Carter, the defendant was challenging the trial court’s denial of

his motion to dismiss the charge of attempted larceny. Carter, No. COA09-609, 2010

N.C. App. LEXIS 381, *4. In that case, the defendant opened a vehicle that the local

police department was using as a “bait car,” stepped inside, and shut the door. Id. at

*7. The officers approached the vehicle when the brake lights came on and while the

defendant was trying to get the vehicle into gear. Id. at *3. We held there was

sufficient evidence of each element of attempted larceny, and the trial court’s

dismissal of the defendant’s motion to dismiss was proper. Id. at *8.

¶ 27 In neither Evans nor Carter did the State present evidence tending to show a

larceny was completed. In Evans, the defendant did not leave the store with the STATE V. SISK

comforters, and in Carter, the defendant did not take or move the vehicle. Hence, the

charge of attempted larceny was appropriate in these cases. The facts in this case

are clearly distinguishable because Defendant completed each element of larceny,

including taking unpaid merchandise outside of the store and carrying it away to his

vehicle. See Perry, 305 N.C. at 233, 287 S.E.2d at 815.

¶ 28 Here, Defendant did not present evidence. In viewing the State’s evidence in

the light most favorable to Defendant, “the evidence is clear and positive as to each

element” of larceny, and there is no evidence of Defendant committing a lesser-

included offense, including attempted larceny. See Peacock, 313 N.C. at 558, 330

S.E.2d at 193. Therefore, we conclude the trial judge did not err in denying

Defendant’s request for the trial court to instruct on attempted larceny. See id. at

558, 330 S.E.2d at 193.

VI. Conclusion

¶ 29 We hold the State presented clear and positive evidence tending to prove each

element of larceny. Accordingly, we discern no error in the trial court’s refusal to

instruct the jury on a lesser included offense.

NO ERROR.

Judges DIETZ and COLLINS concur.