State v. Willis ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling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 Procedur e.
NO. COA14-674
NORTH CAROLINA COURT OF APPEALS
Filed: 3 March 2015
STATE OF NORTH CAROLINA
v. Wake County
Nos. 12 CRS 216257, 8325
RONALD ANDRE WILLIS
Appeal by defendant from judgment entered 3 December 2013 by
Judge Paul G. Gessner in Wake County Superior Court. Heard in the
Court of Appeals 9 February 2015.
Attorney General Roy Cooper, by Assistant Attorney General
Oliver G. Wheeler IV, for the State.
Public Defender of New Hanover County Jennifer Harjo and
Assistant Public Defender Brendan O’Donnell, for defendant-
appellant.
HUNTER, JR., Robert N., Judge.
Defendant Ronald Andre Willis appeals from a judgment entered
consistent with a jury verdict finding him guilty of larceny from
a merchant by removal of an anti-theft device, and his guilty plea
to attaining habitual felon status. For the following reasons, we
find no error.
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On 21 August 2012, defendant was indicted for larceny from a
merchant and for attaining habitual felon status. The State’s
evidence tended to show the following: On 20 July 2012, Caleb
Popow and Gabriel Fischer were working in loss prevention at a
J.M. Hollister store in Cary, North Carolina. The store’s anti-
theft system consisted of an electronic article surveillance
(“EAS”) monitor at the doorway and two anti-theft devices, hard
sensors and soft sensors. An alarm sounds when a sensor passes
through the EAS monitor. Hard sensors are the large plastic
devices often attached to clothing. Soft sensors are white, about
an inch long and three-eighths of an inch wide, and adhere to a
product. Hollister used soft sensors on the store’s fragrances.
Because Hollister did not like the appearance of soft sensors on
a displayed product, the sensors were attached to the inside bottom
of a fragrance box by the manufacturer.
Popow saw defendant enter the store and felt he did not fit
the store’s target market. Defendant looked at a rack of clothing
and then went to the men’s cologne display. Popow, who was acting
like a shopper, saw defendant select two different colognes, “Jake
Cologne” and “SoCal.” The cologne boxes were not covered with
cellophane wrap, nor were they sealed closed with an adhesive.
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Defendant opened the boxes, put the small bottles of cologne in
his left pants pocket, and placed the closed, empty boxes back on
the display. Defendant then walked out of the store without
setting off the EAS monitor. Popow grabbed the empty SoCal box
and verified that it contained a sensor.
Popow and Fischer followed defendant out of the store and
approached him. They identified themselves as Hollister loss
prevention agents, and asked defendant about the bottles of cologne
he did not purchase. Defendant told them that he had given the
bottles to a woman, whom the agents later determined to be April
Yolanda Walston. Popow and Fischer accompanied defendant to the
parking lot where he waved down a car. Ms. Walston was a passenger
in the car. Defendant told Ms. Walston to give Popow and Fischer
the cologne, and she handed over one bottle of cologne. Cary
police officers arrived, searched the car, and found the other
bottle of cologne. Defendant was arrested.
Defendant’s case was called for trial in Wake County Superior
Court on 2 December 2013. At the close of the State’s evidence,
defendant moved to dismiss the charges for insufficiency of the
evidence. Defendant’s motion was denied, and he chose not to
testify on his own behalf. The trial court submitted the charges
of felonious larceny from a merchant by removal of an anti-theft
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device and the lesser-included offense of larceny. A jury found
defendant guilty of felonious larceny from a merchant by removal
of an anti-theft device offense, and defendant subsequently pled
guilty to the habitual felon charge. Defendant was sentenced to 97
to 127 months imprisonment. Defendant appeals.
Defendant contends the trial court erred in denying his 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 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,
78-79, 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
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N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S.
1135, 132 L. Ed. 2d 818 (1995).
Circumstantial evidence may withstand a motion
to dismiss and support a conviction even when
the evidence does not rule out every
hypothesis of innocence. If the evidence
presented is circumstantial, the court must
consider whether a reasonable inference of
defendant’s guilt may be drawn from the
circumstances. Once the court decides that a
reasonable inference of defendant’s guilt may
be drawn from the circumstances, then it is
for the jury to decide whether the facts,
taken singly or in combination, satisfy [it]
beyond a reasonable doubt that the defendant
is actually guilty.
State v. Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation,
quotation marks, and emphasis omitted).
Here, defendant was charged with larceny from a merchant by
removing 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 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). The
State was required to prove the elements of larceny and 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
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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, 219 N.C. App. 642, 643-44, 723
S.E.2d 798, 800-01 (2012) (holding that “an indictment under
section 14-72.11(2) must allege the four elements of larceny and
also removal of an antishoplifting or inventory control device”).
Defendant challenges the sufficiency of the evidence to
support the additional element required by section 14-72.11(2)
that he removed a component of an antishoplifting device for the
purpose of defeating the store’s antishoplifting system.
Defendant asserts that “[t]aking a bottle that has no sensor, out
of a box that does have a sensor, does not amount to “‘removing []
a component of an antishoplifting device.’” He also asserts that
there was no evidence that he took the cologne bottles out of the
boxes “for the purpose of defeating the antishoplifting system[.]”
We are not persuaded.
Here, Popow observed defendant take two bottles from their
boxes, place the bottles in his pants pocket, place the empty boxes
back on the display, and exit the store without the alarm sounding.
Defendant removed the colognes’ antishoplifting device when he
removed the colognes’ packaging to which the antishoplifting
device was physically attached. By exiting the store with the
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unpackaged bottles of cologne in his pants pocket, defendant
defeated the antishoplifting system and was able to exit the store
with the cologne without setting off the store’s EAS monitor
system. Viewing this evidence in the light most favorable to the
State, we conclude the State presented sufficient circumstantial
evidence from which a reasonable person could conclude that
defendant removed “a component of an antishoplifting or inventory
control device to prevent the activation of” an antishoplifting
system. N.C. Gen. Stat. § 14-72.11(2). Accordingly, the trial
court properly denied defendant’s motion to dismiss.
No error.
Chief Judge MCGEE and Judge STEPHENS concur.
Report per Rule 30(e).