NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 7 May v. Johnston County Nos. 10 CRS 57277, CRS 5365

Transcription

1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA NORTH CAROLINA COURT OF APPEALS Filed: 7 May 2013 STATE OF NORTH CAROLINA v. Johnston County Nos. 10 CRS 57277, CRS 5365 STEVEN DALE NARRON Appeal by defendant from judgment entered 14 March 2012 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 12 February Attorney General Roy Cooper, by Assistant Attorney General Michael E. Butler, for the State. Unti & Lumsden LLP, by Sharon L. Smith, for defendantappellant. HUNTER, Robert C., Judge. Defendant appeals from judgment entered after a jury found him guilty of one count of obtaining property by false pretense, two counts of misdemeanor larceny, and two counts of injuring wires or fixtures. After careful review, we find no error.

2 -2- Background The State s evidence tended to establish the following facts: Between 20 September 2010 and 18 November 2010, Progress Energy suffered copper wire thefts at multiple locations in Johnston County. Progress Energy Field Supervisors, David Southerland and Kevin Fulcher, discovered the thefts when responding to reports of power outages or low-hanging wires. During these service calls, Southerland and Fulcher determined the length of copper wire missing and reported the information to Progress Energy s Security Specialist, Kevin Kennedy, as well as to local law enforcement. Kennedy investigated the thefts for Progress Energy and prepared a report in which he determined the value of the copper wire stolen in the incidents underlying defendant s charges. Kennedy s report was admitted into evidence. Kennedy also visited scrap yards and discovered that the same type of copper wire stolen from Progress Energy had been sold to a recycling facility, Wise Recycling. Kennedy reported his findings to the Johnston County Sheriff s Department which began investigating Bradley Eason as a suspect in the thefts. Detective Gerald Coley of the Johnston County Sheriff s Department discovered a truck at Eason s home containing scraps

3 -3- of copper wire, pruners, and a box of muriatic acid. The copper wire was the same type stolen from Progress Energy and it matched a sample discovered by Kennedy at Wise Recycling. Eason was arrested for stealing copper wire and admitted he had stolen the wire with defendant and several other individuals. Explaining his involvement with defendant in the thefts, Eason testified that defendant approached him about his plan to steal copper wire to make some money. Eason agreed to help defendant, and he stole copper wire with defendant at several times during September, October, and November 2010 at multiple locations in Johnston County including locations on Zelma Road and N.C. Highway 39. Eason testified that on each occasion that he stole copper wire with defendant, defendant would climb a ladder with a pair of bolt cutters and cut a section of wire strung between utility poles. When the wire fell to the ground, Eason and the other individuals involved would roll the wire into bundles and place it in their vehicle. Eason testified that after the first night of stealing copper wire with defendant, Eason took the wire to Wise Recycling and sold it under his own name for approximately $800. Eason gave the money to defendant, and defendant divided the money between all the individuals involved, giving 20 percent of

4 -4- the proceeds to Eason and keeping 30 percent for himself. As Eason and defendant continued to steal copper wire, defendant suggested that they should treat the wire with muriatic acid to alter the color of the wire in an attempt to prevent the police from identifying it. Eason testified that he accompanied defendant to the recycling yard to sell the stolen copper approximately eight times. As their conspiracy progressed, Eason and defendant evenly divided the proceeds from selling the copper wire. Defendant was arrested for felony larceny, misdemeanor larceny, injuring wires or fixtures, and obtaining property by false pretense. The next day, defendant was in the Wilson County Sheriff s Office to be served with warrants on separate charges. While there, Officer Josh Bissett served defendant with outstanding warrants related to wire thefts in Wilson County. As defendant and Officer Bissett waited for the magistrate, defendant made a voluntary confession to the wire thefts in Johnston County. Officer Bissett testified that defendant stated that he was not responsible for the copper thefts from cell phone towers or power lines in Wilson County but that he was responsible for the thefts in Johnston County: He advised me... that my charges would never hold up in

5 -5- Wilson County. He said now if you were talking about Johnston County, that would be one thing because I did those, but I did not do the ones in Wilson County. Defendant was indicted on twenty felonies related to the theft of copper wire owned by Progress Energy in Johnston County: thirteen counts of injuring wires or fixtures, six counts of felony larceny, and one count of obtaining property by false pretense. Defendant was also indicted for six counts of misdemeanor larceny and attaining habitual felon status. Defendant pled not guilty to all charges and moved to dismiss the charges at the close of all of the evidence. The trial court immediately denied defendant s motion to dismiss the charge of obtaining property by false pretense, but took an overnight recess to consider the motion to dismiss as to the remaining charges. The next day, the State suggested the Court dismiss the felony larceny charges and to proceed with two counts of misdemeanor larceny. The trial court granted defendant s motion to dismiss all charges except the following five charges that were submitted to the jury: one count of felonious obtaining property by false pretense and two counts of misdemeanor larceny in case number 10 CRS 57277; and two counts of injuring wires or fixtures pursuant to N.C. Gen. Stat. 14-

6 in case number 10 CRS The locations of the thefts associated with the charges were 790 Zelma Road, Kenly, North Carolina, and N.C. Highway 39, Middlesex, North Carolina. The jury returned guilty verdicts on all five charges. Defendant pled guilty to attaining habitual felon status and was sentenced to a term of imprisonment of 96 to 125 months. Defendant gave notice of appeal in open court. 1 Discussion I. Admission of Evidence under Rule 803(5) Defendant first argues that the trial court erred by admitting the testimony of two of the State s witnesses whose testimony was based upon a report that was produced by the Johnston County Sheriff s Department. Defendant contends that the trial court erred in concluding the sheriff s report was a recorded recollection under Rule 803(5) of the North Carolina 1 Defendant filed a petition for writ of certiorari in the event this Court concluded his oral notice of appeal was ineffective. In his petition, defendant asks this Court to review the judgment entered on the charges of which he was convicted and his guilty plea to the habitual felon charge. We conclude defendant s oral notice of appeal was properly given from the convictions for the charges of obtaining property by false pretense, misdemeanor larceny, and injuring wires or fixtures. Because defendant advances no error for the entry of his guilty plea other than the errors alleged for the underlying convictions, with which we find no error, we deny his petition for writ of certiorari.

7 -7- Rules of Evidence. We conclude that defendant has not preserved this issue for our review. At trial, Progress Energy employee Southerland testified as to the amount of wire stolen from Progress Energy and the locations from which it was stolen based on a report provided by the Johnston County Sheriff s Department ( the sheriff s report ). Southerland testified that when he investigated reports of copper wire thefts, he calculated the amount of wire that was stolen and reported it to the sheriff s department. Because Progress Energy was the victim of numerous thefts of its copper wire, Southerland could not testify as to the specific incidents underlying defendant s indictments without referring to the sheriff s report. Defendant s counsel objected to Southerland s testimony and the trial court asked for the basis of the objection. Defendant s counsel argued that when the State provided the sheriff s report to Southerland the State essentially guided the witness to the information that they wanted him to regurgitate. The trial court asked the State for the rule under which Southerland s testimony should be admitted, and the State replied that it was a refreshed recollection. See N.C. Gen. Stat. 8C-1, Rule 612 (2011) (permitting the use of a

8 -8- writing to refresh a witness s memory for the purpose of testifying). However, during voir dire, Southerland testified that the sheriff s report did not refresh his memory. Noting the witness s inability to refresh his memory by reading the sheriff s report, the trial court then suggested that the State could seek to admit his testimony as a recorded recollection under Rule 803(5). See N.C. Gen. Stat. 8C-1, Rule 803(5) (2011) (providing that [a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly is not excluded from evidence by the hearsay rule). The State immediately moved to admit Southerland s testimony pursuant to Rule 803(5). When the trial court asked defendant if he wanted to be heard on the State s motion, defendant s counsel replied that defendant did not care to be heard. The trial court then ruled that Southerland s testimony would be admitted under Rule 803(5) and that defendant s objection was overruled. The trial court allowed the sheriff s report to serve as a basis of Southerland s testimony but did

9 -9- not allow the report to be received as an exhibit. As the jury returned to the courtroom, the trial court again announced that defendant s objection was overruled and that the testimony would be admitted under Rule 803(5), at which point defendant s counsel stated: Your Honor, I would ask are we not well, I noted my objection for the record. Defendant s counsel did not make a new objection. When Southerland resumed his testimony, he testified that 1,002 feet of copper wire was missing from 790 Zelma Road on 20 October The State then called as a witness Progress Energy employee Fulcher who relied upon the same sheriff s report to provide his testimony about the wire thefts. Fulcher testified that 1,790 feet of copper wire was missing from two locations when he responded to N.C. Highway 39 on 12 November Defendant did not object to Fulcher s reliance on the sheriff s report. We conclude the record establishes that although defendant objected to Southerland s testimony on the basis that the State was leading the witness to recite certain parts of the sheriff s report, defendant failed to object to Southerland s testimony on the basis that the report did not qualify as a recorded recollection under Rule 803(5). Defendant s counsel was asked

10 -10- by the trial court if she wanted to be heard on its ruling, and she declined the opportunity. Thus, defendant has not preserved for review the issue of whether the trial court erred in admitting the evidence under Rule 803(5). See N.C. R. App. P. 10(a)(1) (2012) ( In 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. ); see State v. Battle, 172 N.C. App. 335, 338, 615 S.E.2d 733, 735 (2005) (concluding that where the defendant s objection at trial was based on a theory different from that advanced on appeal, the defendant had not preserved the issue for review), writ denied, 361 N.C. 168, 641 S.E.2d 7, vacated and remanded on other grounds, 361 N.C. 148, 696 S.E.2d 521 (2006). Assuming, without deciding, that defendant properly preserved the issue for review and that it was error to admit that part of Southerland s testimony that was based on the sheriff s report, we conclude the error was harmless. In order to establish prejudice, defendant must establish that there was a reasonable possibility that the jury would have reached a

11 -11- different verdict had the error not occurred. N.C. Gen. Stat. 15A-1443(a) (2011). Defendant has not met this burden in light of the other evidence of his guilt. Defendant did not object to Fulcher s testimony as to the theft of copper wire from N.C. Highway 39. As for the charges relating to thefts on Zelma Road, the State introduced the testimony of Eason who testified that he and defendant stole copper wire from utility poles on multiple occasions during the relevant time period including at locations on Zelma Road and N.C. Highway 39 in Johnston County. The State also introduced evidence that after he was arrested, defendant confessed to Officer Bissett that he was responsible for the thefts of copper wire in Johnston County. In light of this evidence, defendant has failed to establish that there is a reasonable possibility that had Southerland not been permitted to testify based on the sheriff s report the jury would have reached a different verdict. See State v. Hairston, 190 N.C. App. 620, , 661 S.E.2d 39, 42 (2008) (concluding that if the Court assumed the error alleged had occurred the defendant could still not establish prejudice in light of the other evidence of his guilt, including his confession to the crime).

12 -12- II. Motion to Dismiss Next, defendant argues that the trial court erred in denying defendant s motion to dismiss all of the charges for insufficient evidence. We disagree. We review 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 doing so, we must determine 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. 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, 78-79, 265 S.E.2d 164, 169 (1980). When considering defendant s motion to dismiss, 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

13 -13- N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). A. Obtaining Property by False Pretense Defendant argues that the trial court erred in denying his motion to dismiss the charge of obtaining property by false pretense because the State failed to present any evidence that defendant used deception in the sale of the stolen copper wire. The elements of the crime of obtaining property by false pretense are: (1) [A] false representation of a past or subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which the defendant obtains or attempts to obtain anything of value from another person. State v. Wright, 200 N.C. App. 578, 586, 685 S.E.2d 109, 115 (2009). The trial court submitted the charge to the jury on the theory of aiding and abetting, which required the jury to find that (i) the crime was committed by some other person; (ii) the defendant knowingly advised, instigated, encouraged, procured, or aided the other person to commit that crime; and (iii) the defendant s actions or statements caused or contributed to the commission of the crime by that other person. State v. Goode, 350 N.C. 247, 260, 512 S.E.2d 414, 422 (1999).

14 -14- Defendant contends that although Eason testified that he sold the stolen copper wire to Wise Recycling, Eason did not testify that he told Wise Recycling who owned the wire that he was selling. Contrary to defendant s argument, Eason testified that he sold the stolen copper in his name at least once in Johnston County and divided the money with defendant and his other co-conspirators. Moreover, it was not necessary for the State to produce evidence that defendant or his co-conspirators verbally deceived Wise Recycling when selling the stolen copper. For the crime of obtaining property by false pretense, the false pretense need not come through spoken words, but instead may be by act or conduct. State v. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Eason testified that he and defendant would wash the stolen copper in muriatic acid in order to alter the appearance of the copper and throw off the police as [t]hey wouldn t recognize it if it was oxidized. Eason stated that it was defendant s idea to use the muriatic acid. While the stated intent of using the acid was to deceive the police, the evidence permits a reasonable inference that altering the appearance of the copper also deceived Wise Recycling into believing that the copper was not stolen. Thus, there is substantial evidence in

15 -15- the record that defendant used deception in selling the copper wire, and defendant s motion was properly denied. B. Misdemeanor Larceny & Injuring Wires or Fixtures Defendant argues that the trial court erred in denying his motion to dismiss the two charges of misdemeanor larceny and the two charges of injuring wires or fixtures because the trial court relied upon testimony based upon the sheriff s report, which defendant contends the trial court erroneously admitted into evidence under Rule 803(5). We disagree. Larceny is the taking by trespass and carrying away of the goods or personal property of another, without the owner s consent and with the intent permanently to deprive the owner of the property and to convert it to the taker s own use. The elements of proof are the same for misdemeanor and felony larceny, the only difference being the value or nature of the property stolen. State v. Fluker, 139 N.C. App. 768, 777, 535 S.E.2d 68, 74 (2000) (internal citation omitted). For the crime of injuring wires or fixtures, N.C. Gen. Stat (2011) provides that [i]f any person shall willfully injure, destroy or pull down any... electric power line... or other apparatus, equipment or fixture used in the transmission of telegraph, telephone, cable telecommunications, or electrical power service... that person shall be guilty of a Class I Felony.

16 -16- As discussed above, we conclude that defendant did not object to the admission of the sheriff s report on the basis that it did not qualify as a recorded recollection under Rule 803(5). Therefore, we do not consider defendant s argument that the testimony based on the report was admitted in error. Referring to the sheriff s report, Southerland testified that copper wire was stolen from Progress Energy s utility poles at 790 Zelma Road in Johnston County in October of Fulcher also relied on the sheriff s report to testify that copper wire was stolen from Progress Energy at N.C. Highway 39 on 12 November Additionally, the State introduced the testimony of Eason who testified that he and defendant stole copper wire from utility poles on multiple occasions during the relevant time period, including at locations on Zelma Road and N.C. Highway 39 in Johnston County. Eason testified that defendant knew that taking the copper wire was illegal and that they sold the stolen wire to recycling facilities. Although Eason did not testify as to the exact location of the thefts he committed with defendant on Zelma Road and N.C. Highway 39, this is not an essential element of the crimes charged. Finally, the State introduced evidence that defendant admitted that he committed thefts of copper wire in

17 -17- Johnston County. We conclude there was substantial evidence of each essential element of misdemeanor larceny and injuring wires or fixtures and of defendant being the perpetrator of each offense, and defendant s motion was properly denied. Lastly, defendant argues that the trial court erred in denying his motion to dismiss the charges because the denial was based on evidence not readily available to the jury. Defendant contends that it was unreasonable to assume any juror could have recalled the numerous locations of stolen wire and the corresponding footages of wire missing and then connect this information to the other witnesses testimony. It seems that defendant contends the evidence was too complicated for the jury to resolve, and therefore, the trial court should have dismissed the charges. Defendant provides no legal authority for this argument, and we conclude that it is without merit. Conclusion For the reasons stated above, we find no error. NO ERROR. Judges McCULLOUGH and DAVIS concur. Report per Rule 30(e).