State v. McKinnon ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1446
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
Buncombe County
v.
Nos. 12 CRS 984-85
EVERETTE LEE MCKINNON
Appeal by defendant from judgments entered 28 June 2013 by
Judge Marvin P. Pope in Buncombe County Superior Court. Heard
in the Court of Appeals 4 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
David D. Lennon, for the State.
Charlotte Gail Blake for defendant-appellant.
ERVIN, Judge.
Defendant Everette Lee McKinnon appeals from judgments
sentencing him to active terms of imprisonment based upon his
convictions for two counts of felonious larceny. On appeal,
Defendant contends that the trial court erred by denying his
motion to arrest judgment with respect to one of these two
felonious larceny convictions on the grounds that the evidence
presented at trial showed the commission of one, rather than
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two, offenses. After careful consideration of Defendant’s
challenge to the trial court’s judgments in light of the record
and the applicable law, we conclude that judgment in one of the
two cases before us should be arrested and the judgment in the
other case should remain undisturbed.
I. Factual Background
A. Substantive Facts
On 3 July 2011, Defendant drove a van to a Sam’s Club store
in Asheville. After the van pulled into the parking lot at 1:05
p.m. and parked, a passenger exited the van, entered the store,
obtained a “return sticker” from one of the store’s greeters,
and returned to the van.1 At that point, Defendant exited the
van and entered the store at 1:15 p.m. After loading a 55”
Samsung television onto a flatbed cart, Defendant proceeded to
the service desk, where he obtained an extended warranty
brochure from Susan Buckner, a Sam’s Club employee. Following
his conversation with Ms. Buckner, Defendant brought the
television to an exit door, where an exit greeter “grabbed a
refund sticker off of that television” and motioned toward the
service desk before waving Defendant, along with the television,
through the exit at 1:24 p.m.
1
A return, or “refund,” sticker is provided to a customer
who is returning an item of merchandise. The customer takes the
returned item with the sticker to the store’s service desk to
obtain a refund or replacement merchandise.
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After loading the television into his van, Defendant
reentered the store with the empty flatbed cart, placed a second
55” Samsung television onto the cart at approximately 1:27 p.m.,
and returned to the service desk. Upon arriving at the service
desk, Defendant told Ms. Buckner that he had locked his keys in
his car, asked if she had a coat-hanger, and “proceeded back to
the exit door greeter, who thought it was the same television
that just left.” After asking Ms. Buckner “if it was okay for
him to take the TV out[,]” the exit greeter allowed Defendant to
leave the store with the second television.
B. Procedural History
On 5 November 2012, the Buncombe County grand jury returned
bills of indictment charging Defendant with two counts of
felonious larceny.2 The charges against Defendant came on for
trial before the trial court and a jury at the 24 June 2013
criminal session of the Buncombe County Superior Court. On 27
June 2013, the jury returned verdicts convicting Defendant of
two counts of felonious larceny. After the return of the jury’s
verdicts, Defendant unsuccessfully moved that judgment be
2
Although Defendant had also been charged with having
attained the status of an habitual felon, the trial court
dismissed the habitual felon indictment on the grounds that one
of the predicate felonies upon which the State relied in seeking
to have Defendant sentenced as an habitual felon had been
obtained in violation of Defendant’s right to the assistance of
counsel.
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arrested in one of the two cases in which he had been convicted
of felonious larceny on the grounds that the evidence presented
at trial only sufficed to support a single felonious larceny
conviction. At the conclusion of the ensuing sentencing
hearing, the trial court entered judgments sentencing Defendant
to two consecutive terms of 18 to 22 months imprisonment.
Defendant noted an appeal to this Court from the trial court’s
judgments.
II. Substantive Legal Analysis
In his sole challenge to the trial court’s judgments,
Defendant contends that the trial court erred by denying his
motion to arrest judgment with respect to one of the two counts
of felonious larceny for which he was convicted. More
specifically, Defendant argues that the theft of the two
televisions constituted a single continuous transaction
sufficient to support only one, rather than two, felonious
larceny convictions. Defendant’s argument has merit.
According to well-established North Carolina law, “[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). The principle
enunciated in Froneberger was applied in State v. Marr, 342 N.C.
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607, 610, 467 S.E.2d 236, 237 (1996), in which the defendants
took items from two separate buildings, a mobile home and shop,
located on the victim’s premises, placed the stolen items in two
cars belonging to the victim and drove away. On appeal, the
Supreme Court held that the evidence supported a single larceny
conviction, rather than four, stating that:
In State v. Adams, 331 N.C. 317, 416 S.E.2d
380 (1992), we held that 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. That is the case here. Although
there was evidence of two enterings, the
taking of the various items was all part of
the same transaction.
Id. at 613, 467 S.E.2d at 239. Similarly, in State v. Hargett,
157 N.C. App. 90, 91-92, 577 S.E.2d 703, 704 (2003), the
defendant was convicted of two counts of larceny for breaking
into two work vans and stealing, inter alia, a circular saw from
each van. On appeal, this Court arrested judgment with respect
to one of the two larceny convictions, stating that:
The trial court erred in convicting and
sentencing defendant for two separate
larcenies. Defendant took tools from
multiple vans owned by Queen City Electric,
but the vans were parked inside the same
locked fence in close proximity. The
larcenies from the separate vans occurred
within the same general time period. We
hold the larcenies were part of a single
continuous transaction.
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Id. at 96, 577 S.E.2d at 707. Finally, in State v. Phillips,
172 N.C. App. 143, 144, 615 S.E.2d 880, 881 (2005), a group of
defendants stole five all-terrain-vehicles from an outdoor
supply store by cutting a hole in the store’s perimeter fence
and “push[ing] the ATVs through the hole in the fence and into a
nearby wooded area.” “Because the ATVs were large and unwieldy,
the men had to make at least four separate trips before all the
ATVs were secured.” Id. Nonetheless, because the defendants
“stole all five ATVs from the same victim during one break-in,
occurring on the same night[,]” and “[t]here was no interruption
in the events once the transaction began[,]” this Court held
that the defendants’ “actions were part of a single, continuous
transaction,” with the fact that the defendants “made several
trips to move the large and cumbersome ATVs” not being
sufficient to “convert this offense into five separate
offenses.” Id. at 147-48, 615 S.E.2d at 883. As a result, the
decisional law in this jurisdiction clearly establishes that the
theft of multiple items from the same location at approximately
the same time is a single theft even if the perpetrator has to
make multiple entries into the location from which the items
were stolen in order to remove the stolen items.
A careful review of decisions such as Marr, Hargett, and
Phillips establishes that the evidence presented before the
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trial court in this case only sufficed to establish the
commission of a single felonious larceny. Although the State
argues that the trial court correctly denied Defendant’s motion
in arrest of judgment on the grounds that Defendant engaged in
“two separate acts of deception” to obtain the televisions, this
argument overlooks the fact that Defendant’s ability to steal
the second television hinged, in large part, on the temporal
proximity between the two takings, a circumstance that Defendant
utilized in order to lull the store employees into believing
that Defendant had only taken one, rather than two, televisions
from the store. Aside from the fact that the record does not
appear to provide significant factual support for this “multiple
deception” argument, the State has not cited any authority in
support of the legal principle that it has urged us to adopt,
and we know of none. Similarly, we are not persuaded by the
State’s argument that the principle enunciated in Marr, Hargett,
and Phillips has no application in this case on the grounds that
the transaction in which the two televisions were taken involved
an interruption, given that the Defendant appears to have been
continuously involved in stealing televisions from Sam’s Club
from the time that he arrived in the parking lot until his final
departure from the premises, and that Defendant did not retain
control over all of the stolen property throughout the series of
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events that occurred at the time of the theft, given that the
first television was clearly in the van in which Defendant came
to the Sam’s Club while the second television was being stolen.
As a result, we conclude that, since the evidence developed at
trial only supports a single felonious larceny conviction, the
trial court erred by denying Defendant’s motion in arrest of
judgment.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Defendant’s sole challenge to the trial court’s judgments has
merit. As a result, judgment in Buncombe County File No. 12 CRS
985 should be, and hereby is, arrested, while the trial court’s
judgment in Buncombe County File No. 12 CRS 984 should, and
hereby does, remain undisturbed.3
NO ERROR IN BUNCOMBE COUNTY FILE No. 12 CRS 984; JUDGMENT
ARRESTED IN BUNCOMBE COUNTY FILE NO. 12 CRS 985.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).
3
As a result of the fact that the amount of restitution that
Defendant was ordered to pay in the judgment entered in Buncombe
County File No. 12 CRS 984 encompasses the value of both
televisions, we leave that judgment undisturbed.