State v. Wilson

• Court: Court of Appeals of North Carolina
• Decided: December 3, 2024
• Docket: 24-27
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-27

Filed 3 December 2024

Rutherford County, Nos. 19 CRS 831–32, 50318–20

STATE OF NORTH CAROLINA

v.

MICHELLE RENEE WILSON

Appeal by defendant by writ of certiorari from judgment entered 7 December

2022 by Judge Steve R. Warren in Rutherford County Superior Court. Heard in the

Court of Appeals 24 September 2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Adrina G. Bass, for the State.

John W. Moss for defendant-appellant.

ZACHARY, Judge.

Defendant Michelle Renee Wilson appeals by writ of certiorari from the trial

court’s judgment entered upon a jury’s verdicts finding her guilty of three counts of

larceny of a firearm and one count each of possession of a firearm by a felon,

misdemeanor possession of stolen goods, possession of burglary tools, breaking or

entering, larceny after breaking or entering, possession of a stolen motor vehicle, and

attaining habitual-felon status. After careful review, we reverse Defendant’s three

convictions for larceny of a firearm, vacate Defendant’s sentence, and remand for the STATE V. WILSON

Opinion of the Court

trial court to resentence Defendant in accordance with this opinion.

BACKGROUND

On 28 January 2019, Detective Atkins of the Rutherford County Sheriff’s Office

received a report that several items, including three firearms, had been stolen from

James Murray’s property on Pea Ridge Road in Bostic, North Carolina. Detectives

Atkins and Holtzclaw went to Defendant’s residence on Lawing Mill Road “[t]o speak

with [her] about the . . . break-in from Pea Ridge Road.” While the detectives waited

for someone to answer the door, they observed—in plain view on the front porch of

the residence—several other items that had been reported stolen. Detective Atkins

took photographs of the items, which Murray and his grandson later verified as their

stolen property.

Detective Millard procured a search warrant for Defendant’s residence. When

the detectives executed the search warrant, they discovered many of the items that

Murray and his grandson had reported stolen.

During the detectives’ search of the residence, Defendant arrived in her white,

single-cab Chevrolet truck. The detectives searched the truck and found “a set of bolt

cutters” and “extra . . . key locks.” After agreeing to speak with the detectives and

being read her Miranda rights,1 Defendant told them that she, Tim Terry, and Doug

1 In Miranda v. Arizona, the United States Supreme Court held that the State “may not use

statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless [the State] demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706 (1966).

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Roe met at her residence. They then drove her truck to the Pea Ridge Road property.

While at the property, “they wound up taking a lot of smaller [items]”; Defendant,

Terry, and Roe then “wound up going back to [Defendant’s] property” and “unload[ed]

the stuff on the front porch.” About an hour and a half later, Terry and Roe returned

to the Pea Ridge Road property and stole more items, including a motorcycle.

On 30 January 2019, Sergeant Upton executed a search warrant for

Defendant’s cell phone and extracted its contents, which Detective Ellenburg

reviewed. The cell phone contained several outgoing and incoming text messages from

27–29 January 2019 regarding the stolen property. The stolen firearms were never

recovered.

On 7 October 2019, a Rutherford County grand jury indicted Defendant for

three counts of larceny of a firearm and one count each of possession of a firearm by

a felon, misdemeanor possession of stolen goods, possession of burglary tools,

breaking or entering, larceny after breaking or entering, possession of a stolen motor

vehicle, and attaining habitual-felon status.

This matter came on for trial on 5 December 2022. Defendant made a motion

to dismiss at the close of the State’s evidence and renewed the motion at the close of

all evidence; the trial court denied both motions. On 7 December 2022, the jury

returned verdicts finding Defendant guilty of all charges. The trial court consolidated

the convictions into a single judgment and sentenced Defendant to a term of 83 to 112

months in the custody of the North Carolina Division of Adult Correction.

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On 4 January 2023, Defendant filed a written notice of appeal.

APPELLATE JURISDICTION

Preliminarily, we note the deficiencies in Defendant’s notice of appeal.

The first such deficiency is the lack of designation as to which court she

appealed. Rule 4 of the North Carolina Rules of Appellate Procedure provides that an

appellant’s notice of appeal “shall designate . . . the court to which appeal is taken[.]”

N.C.R. App. P. 4(b). Yet, this Court has recognized that such a nonjurisdictional

“defect in a notice of appeal should not result in loss of the appeal as long as the intent

to appeal can be fairly inferred from the notice and the appellee is not misled by the

mistake.” State v. Springle, 244 N.C. App. 760, 763, 781 S.E.2d 518, 521 (2016)

(cleaned up).

Of more concern, however, is the fact that Defendant’s notice of appeal was

also untimely. Rule 4 requires that an appellant in a criminal action file notice of

appeal and serve copies thereof “upon all adverse parties within fourteen days after

entry of the judgment or order[.]” N.C.R. App. P. 4(a)(2). Here, Defendant did not give

oral notice of appeal in open court after the trial court entered judgment on 7

December 2022; rather, she filed an untimely written notice of appeal on 4 January

2023. Because Defendant failed to file her written notice of appeal within the 14-day

window allowed by Rule 4(a)(2), we lack jurisdiction over Defendant’s appeal. See

State v. McCoy, 171 N.C. App. 636, 638, 615 S.E.2d 319, 320 (“[C]ompliance with the

requirements of Rule 4(a)(2) is jurisdictional and cannot simply be ignored by this

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Court.”), appeal dismissed, 360 N.C. 73, 622 S.E.2d 626 (2005).

Acknowledging the deficiencies in her appeal, on 10 April 2023, Defendant

petitioned this Court to issue its writ of certiorari to review the judgment entered

against her due to the fact that her “right to prosecute [this] appeal has been lost by

failure to take timely action[.]” N.C.R. App. P. 21(a)(1).

“Certiorari is a discretionary writ, to be issued only for good and sufficient

cause shown.” State v. Grundler, 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959), cert.

denied, 362 U.S. 917, 4 L. Ed. 2d 738 (1960). “A petition for the writ must show merit

or that error was probably committed below.” Id. For the following reasons, we

exercise our discretion pursuant to Rule 21 to allow Defendant’s petition for writ of

certiorari in part and to review one of the two issues that she presents on appeal.2

Defendant has shown good cause in that one of the arguments that she raises

on appeal has merit. Moreover, the State does not assert that it was prejudiced by

the untimeliness of Defendant’s notice of appeal. Finally, Defendant’s intent to appeal

to this Court may be “fairly inferred” from her notice, Springle, 244 N.C. App. at 763,

781 S.E.2d at 521 (citation omitted), and the State does not contend that it was misled

by the notice’s defect.

In our discretion, we allow Defendant’s petition for writ of certiorari solely to

review the question of whether the trial court erred by denying her motion to dismiss

2 Defendant does not challenge “any issues related to her charges for misdemeanor possession

of stolen goods or possession of burglary tools.”

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three of the four larceny charges. See State v. Ledbetter, 371 N.C. 192, 197, 814 S.E.2d

39, 43 (2018); see also State v. Friend, 257 N.C. App. 516, 519, 809 S.E.2d 902, 905

(2018). We deny Defendant’s petition for writ of certiorari as to the second issue

Defendant advances.

DISCUSSION

Defendant contends that the trial court erred by denying her motion to dismiss

three of the four larceny charges. Specifically, Defendant argues that the State’s

evidence failed to support four separate larceny offenses under the “single-taking

rule,” which precludes conviction and sentencing for multiple larceny charges arising

out of a single continuous act or transaction.

Standard of Review

This Court reviews de novo a trial court’s denial of a motion to dismiss. State

v. Hobson, 261 N.C. App. 60, 70, 819 S.E.2d 397, 404, disc. review denied, 371 N.C.

793, 821 S.E.2d 173 (2018).

“When ruling on a defendant’s motion to dismiss, the trial court must

determine whether there is substantial evidence (1) of each essential element of the

offense charged, and (2) that the defendant is the perpetrator of the offense.” Id.

(citation omitted). “Substantial evidence is the amount necessary to persuade a

rational juror to accept a conclusion.” State v. Osborne, 372 N.C. 619, 626, 831 S.E.2d

328, 333 (2019) (cleaned up).

In evaluating the sufficiency of the evidence upon a defendant’s motion to

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dismiss, 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[.]” State v. Winkler, 368 N.C. 572, 574–75, 780 S.E.2d 824, 826

(2015) (citation omitted).

Preservation

Our Supreme Court has stated that “under Rule 10(a)(3), a defendant’s motion

to dismiss preserves all issues related to sufficiency of the State’s evidence for

appellate review.” State v. Golder, 374 N.C. 238, 246, 839 S.E.2d 782, 788 (2020);

N.C.R. App. P. 10(a)(3). “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. “[A] defendant preserves all insufficiency of the

evidence issues for appellate review simply by making a motion to dismiss the action

at the proper time.” Id. at 246, 839 S.E.2d at 788.

At trial, Defendant moved to dismiss all charges at the close of the State’s

evidence and renewed her motion at the close of all the evidence. Accordingly,

Defendant properly preserved this issue for appellate review.

Analysis

Defendant argues that under the “single-taking rule,” she “may not be . . .

convicted . . . and punished for four separate charges of felony larceny arising out of

one transaction or occurrence.” We are constrained to agree.

“The essential elements of larceny are: (1) taking the property of another; (2)

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carrying it away; (3) without the owner’s consent; and (4) with the intent to deprive

the owner of the property permanently.” State v. Garner, 252 N.C. App. 393, 396–97,

798 S.E.2d 755, 758 (2017) (citation omitted). Moreover, larceny “[o]f any firearm” is

a felony. N.C. Gen. Stat. § 14-72(b)(4) (2023).

The single-taking rule “prevents a defendant from being . . . convicted multiple

times for a single continuous act or transaction.” State v. White, 289 N.C. App. 93, 97,

887 S.E.2d 902, 906 (citation omitted), disc. review denied, 385 N.C. 319, 891 S.E.2d

272 (2023). “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. Froneberger, 81 N.C. App. 398, 401, 344 S.E.2d 344, 347 (1986). It is the State’s

burden to present evidence that the stolen items were taken as part of multiple acts

or transactions in order to support multiple convictions. Cf. id. (“The State has not

shown a prima facie larceny of each of the four [stolen items].”). “Thus, absent

evidence that the [items] w[ere] stolen on more than one occasion, [a] defendant could

only be convicted of one count of larceny.” Id.

The underlying facts in this matter parallel those presented in State v. Adams,

331 N.C. 317, 416 S.E.2d 380 (1992). In Adams, the defendant participated in a

residential breaking or entering, during which a firearm and other items were stolen.

331 N.C. at 321–22, 416 S.E.2d at 382. The defendant was tried, convicted, and

sentenced for a number of offenses, including larceny of a firearm and larceny of

property stolen pursuant to a breaking or entering. Id. at 333, 416 S.E.2d at 389. Our

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Supreme Court, however, held that where all of the items were stolen “during the

course of a single breaking or entering of the . . . residence[,]” the trial court had

improperly convicted and sentenced the defendant “for both larceny of a firearm and

felonious larceny of that same firearm pursuant to a breaking or entering.” Id.

Accordingly, the Court reversed the defendant’s conviction of felonious larceny

pursuant to a breaking or entering and vacated his sentence on the charge. Id.

In the case at bar, Defendant was charged, inter alia, with larceny after

breaking or entering and three counts of larceny of a firearm. While it is unclear when

the firearms were taken—during the first larceny or the second, when Defendant’s

cohorts returned to the property to steal more items—the State’s evidence does not

establish that Defendant participated in more than a single incident of larceny.

Because the evidence presented at trial showed that Defendant participated in “one

continuous act or transaction,” she could only properly be convicted of and sentenced

for one larceny offense. Froneberger, 81 N.C. App. at 401, 344 S.E.2d at 347.

The State failed to meet its burden to present evidence that Defendant stole

the items during the course of multiple acts or transactions. “Therefore, we hold that

the court erred in not dismissing the three larceny of firearms charges, where

[D]efendant was properly” convicted of one count of felonious larceny after breaking

or entering. State v. Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 682 (1985); see

Froneberger, 81 N.C. App. at 401–02, 344 S.E.2d at 346–48. In that the trial court

consolidated all of Defendant’s convictions into a single judgment for sentencing, we

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remand for resentencing. See Froneberger, 81 N.C. App. at 402, 344 S.E.2d at 347.

CONCLUSION

For the reasons stated above, we reverse Defendant’s three convictions for

larceny of a firearm, vacate Defendant’s sentence, and remand for the trial court to

resentence Defendant in accordance with this opinion.

REVERSED IN PART; SENTENCE VACATED; REMANDED FOR

RESENTENCING.

Judges STROUD and HAMPSON concur.

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