Opinion
No. COA09-609
Filed 2 February 2010 This case not for publication Opinion Withdrawn
Appeal by defendant from judgment entered 13 November 2008 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 October 2009.
Attorney General Roy Cooper by Assistant Attorney General David P. Brenskelle, for the State. John T. Hall, for Defendant.
Mecklenburg County No. 08 CRS 24344, 08 CRS 205486.
Defendant Guss Bobby Carter, Jr., appeals from a judgment entered 13 November 2008 sentencing him to a minimum term of 167 months and a maximum term of 210 months imprisonment in the custody of the North Carolina Department of Correction based upon a jury verdict convicting Defendant of attempted felony larceny of a motor vehicle and Defendant's plea of guilty to having attained the status of an habitual felon. Although we find no error in the proceedings that resulted in Defendant's conviction and sentence, we remand this case to the trial court for the correction of a clerical error contained in the judgment.
I. Factual Background A. Substantive Facts
Officer Calvin Helms of the Charlotte-Mecklenburg Police Department was on duty in the early morning hours of 2 February 2008, watching a bait car parked at a Circle K in Mecklenburg County. The bait car was left with the engine running, the keys in the ignition, and the windows rolled halfway down. Officer Helms also put "bait items" in the car, including "an old laptop, a little money in an envelope, a carton of cigarettes," and a box for an Xbox game. In addition, Officer Helms placed a "McDonalds bag and some other things" in the vehicle. After setting up the bait car at around 11:00 p.m., Officer Helms went to a surveillance vehicle that was also occupied by his partner, Officer Eugene Jarka.
The Charlotte-Mecklenburg Police Department utilized several types of bait cars, including a "lock-out transmission car," which had a "hidden switch" in the vehicle that, when activated, prevented the vehicle from being put into gear, effectively immobilizing the vehicle. The bait car placed at the Circle K on 2 February 2008 was a 1993 Toyota 4-Runner with a "lock-out transmission." The 1993 Toyota 4-Runner in question was worth up to $2,000.00.
Approximately one hour later, Officer Helms observed Defendant and a man known as "Cowboy" conversing outside the Circle K near the bait vehicle. At that point, Officer Helms observed Defendant approach the bait vehicle while "Cowboy" "started getting out of there quickly." Defendant opened the driver's side door, stepped into the vehicle, and shut the door. Officer Helms attempted to ascertain whether Defendant was "trying to steal the items [in the vehicle] or trying to steal the car" by "waiting on the brake lights to come on." When the "brake lights came on," Officer Helms knew "he was actually attempting to steal the car." At that point, Officer Helms and Officer Jarka moved in to "make the arrest."
AS Officer Helms approached the driver's side window and Officer Jarka approached the passenger side window, Defendant "was jerking on the shift trying to get it in gear." Officer Helms arrested Defendant. Another officer detained "Cowboy," but let him go after speaking with him briefly.
B. Procedural History
On 2 February 2008, the magistrate issued a Warrant for Arrest charging Defendant with larceny of a motor vehicle. On 25 February 2008, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with attempted larceny of a motor vehicle. On 14 April 2008, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with having attained the status of an habitual felon.
The charges against Defendant came on for trial at the 10 November 2008 criminal session of the Mecklenburg County Superior Court before the trial court and a jury. On 13 November 2008, the jury found Defendant guilty of attempted larceny of a motor vehicle. Following the return of the jury's verdict, Defendant entered a plea of guilty to having attained the status of an habitual felon. After determining that Defendant had 25 prior record points and should be sentenced as a Level VI offender, the trial court entered judgment sentencing Defendant to a minimum term of 167 months and a maximum term of 210 months in the custody of the North Carolina Department of Correction. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis A. Motion to Dismiss
Defendant contends that the trial court erred by refusing to dismiss the charge of attempted larceny of a motor vehicle. Based upon a careful review of the evidentiary record, we conclude that the trial court correctly denied Defendant's dismissal motion.
In reviewing a defendant's challenge to the denial of a motion to dismiss on the basis of insufficiency of the evidence, we examine "whether the State presented `substantial evidence' in support of each element of the charged offense." State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005); see also State v. McNeil, 359 N.C. 800, 803, 617 S.E.2d 271, 273 (2005) (citations omitted); State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). "`Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.'" McNeil, 359 N.C. at 804, 617 S.E.2d at 274 (quoting Garcia, 358 N.C. at 412, 597 S.E.2d at 746 (quotation omitted)). In making this determination, the record evidence is considered "`in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence.'" Id. (quoting Garcia, 358 N.C. at 412-13, 597 S.E.2d at 746 (citation omitted)). The necessary "`substantial evidence inquiry examines the sufficiency of the evidence presented but not its weight,'" which remains at all times a question for the jury. McNeil, id., (quoting Garcia, id., (quotation omitted)); see also State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (citation omitted). "Thus, `if there is substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.'" State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quoting McNeil, id. (quotation omitted)).
"The essential elements of larceny are that defendant (1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to permanently deprive the owner of the property." State v. Coats, 74 N.C. App. 110, 112, 327 S.E.2d 298, 300, cert. denied, 314 N.C. 118, 332 S.E.2d 492 (1985) (citing State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982)). When the value of the property stolen exceeds $1,000, the larceny in question is classified as a felony. N.C. Gen. Stat. § 14-72(a).
"The elements of an attempt to commit a crime are (1) an intent to commit the crime, (2) an overt act done for that purpose, going beyond mere preparation, (3) but falling short of the completed offense." State v. Collins, 334 N.C. 54, 60, 431 S.E.2d 188, 192 (1993). As a result, in order to withstand Defendant's dismissal motion, the State had to present evidence tending to show: "(1) An intent to take and carry away the property of another; (2) without the owner's consent; (3) with the intent to deprive the owner of his or her property permanently; (4) an overt act done for the purpose of completing the larceny, going beyond mere preparation; and (5) falling short of the completed offense." State v. Weaver, 123 N.C. App. 276, 287, 473 S.E.2d 362, 369, cert. denied and disc. review denied, 344 N.C. 636, 477 S.E.2d 53 (1996).
At trial, the State presented evidence that Defendant opened the driver's side door of a vehicle that was owned by another, stepped into that vehicle, and shut the door. According to Officer Helms, Defendant did not "have permission to drive [the vehicle] or borrow it." After Defendant entered the vehicle, the "brake lights came on." At the time that Officer Helms approached the driver's side window, Defendant "was jerking on the shift trying to get it in gear." However, because it was immobilized, Defendant was unable to actually steal the bait vehicle. In addition, Sergeant Richard Tarsburg of the Charlotte-Mecklenburg Police Department testified that the bait vehicle was owned by the Department and was "worth up to $2,000." By entering the running vehicle, depressing the brake pedal, and attempting to put the vehicle into gear, Defendant performed overt acts going beyond mere preparation that were intended to effectuate a larceny of a vehicle valued at more than $1,000.00. As a result, we hold that the record contains sufficient evidence of each element of attempted felonious larceny and that Defendant's dismissal motion was properly denied.
B. Discovery Violation
Defendant argues that the trial court erred by denying his motion to dismiss predicated upon the State's failure to comply with the discovery statutes. After careful consideration of Defendant's contentions in light of the record, we conclude that the trial court did not abuse its discretion in denying Defendant's dismissal motion.
N.C. Gen. Stat. § 15A-910 provides that:
(a) If at any time during the course of the proceedings the court determines that a party has failed to comply with this Article or with an order issued pursuant to this Article, the court in addition to exercising its contempt powers may
(1) Order the party to permit the discovery or inspection, or
(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing evidence not disclosed, or
(3a) Declare a mistrial, or
(3b) Dismiss the charge, with or without prejudice, or
(4) Enter other appropriate orders.
(b) Prior to finding any sanctions appropriate, the court shall consider both the materiality of the subject matter and the totality of the circumstances surrounding an alleged failure to comply with this Article or an order issued pursuant to this Article.
"Determining whether the State failed to comply with discovery is a decision left to the sound discretion of the trial court." State v. Jackson, 340 N.C. 301, 317, 457 S.E.2d 862, 872 (1995) (citation omitted). In addition, "[t]he choice of which sanction to apply, if any, rests in the sound discretion of the trial court[.]" State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986). "It is important to note that while [N.C. Gen. Stat. § 15A-910] sets out possible curative actions, it does not require the court to impose any sanction." State v. Alston, 307 N.C. 321, 330, 298 S.E.2d 631, 639 (1983) (citing State v. Stevens, 295 N.C. 21, 37, 243 S.E.2d 771, 781 (1978)). "The trial court may be reversed for an abuse of discretion . . . only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision." State v. Carson, 320 N.C. 328, 336, 357 S.E.2d 662, 667 (1987) (citation omitted).
At trial, Defendant moved to dismiss after learning that officers of the Charlotte-Mecklenburg Police Department had talked to "Cowboy" on the night that Defendant was arrested and that investigating officers know that "Cowboy's" name was Calvin Murray. Following his arrest, Defendant told investigating officers that he and "Cowboy" were at the Circle K in order to meet a friend named "LB;" that "LB" drives a Toyota 4-Runner like the bait car; that Defendant mistook the bait car for "LB's" car; and that Defendant got into the bait car in order to teach "LB" a lesson about leaving the keys in his car. According to Defendant, "Cowboy" might have assisted Defendant in challenging the State's attempt to prove his guilt of attempted felonious larceny by corroborating his claim to have lacked the intent to permanently deprive the Department of the bait car. However, Defendant had been unable to locate "Cowboy" since his arrest. Upon learning at trial that investigating officers had spoken with "Cowboy" at the scene, knew his identity, and had failed to disclose that information, Defendant moved for a dismissal.
After orally denying Defendant's dismissal motion at trial, the trial court entered a written order on 25 November 2008 that began with a series of findings of fact that were generally consistent with the evidentiary summary set out at the beginning of this opinion and then included the following additional findings of fact:
9) Defendant was arrested for attempted larceny of a vehicle. The officers learned he had an outstanding warrant for armed robbery, which was served.
10) Neither Officer Helms nor Jarka had any contact with the other suspect. They learned that other officers briefly detained and then released him. No charges relating to the attempted larceny of the bait car were filed against anyone other than Defendant.
11) Officer Helms was the officer in charge of putting the case file together and presenting it to the District Attorney's Office for prosecution. He took a written statement from Defendant in which Defendant said he had been drinking that night and that he and "Cowboy" had gone to the convenience store looking for "LB." He said he saw a vehicle with the engine running, and it looked like one that belonged to "LB." He said he told "Cowboy" that "LB" was probably inside the store and that he was going to get in the car to scare "LB." He also said his intent in trying to get the car in gear was not to steal it, but instead to move it to the front of the store for "LB."
12) When the case was called for trial at the beginning of the term on Monday, November 10, 2008, Defendant . . . requested a continuance because neither he nor Ms. Trosch [defense counsel] had located a witness he needed. He identified that witness as the other suspect the officers saw run from the scene. He said he knew that person only by his nickname, "Cowboy." Defendant said "Cowboy" received a citation that same night, and the police should be able [to] look through their citations for February 2, 2008, and get photographs of all the people who got citations that day and show them to him so he could identify "Cowboy" from those photographs.
13) The Court asked Ms. Trosch if she felt she was prepared to go [to] trial and effectively represent Defendant, and she said she felt she was ready.
14) The Court asked Ms. Trosch about her efforts to locate the other suspect. She said Defendant only knew him by his nickname, "Cowboy" and knew that he was often at the Castlewood Apartments, which was the place Defendant said he and "Cowboy" had been prior to going to the convenience store to look for "LB." She gave the information to her investigator, and he tried to locate "Cowboy." Defendant asked the investigator to obtain all the police department's citations for the date of Defendant's arrest, but he was unable to get that information from the police department. The investigator checked the Castlewood Apartments and other locations to try to find him but could find no one who said they knew anyone called "Cowboy."
15) The State's evidence was completed the first morning of the term. During the testimony of Officer Jarka, he said he recognized the man with Defendant that evening as a homeless person he had seen hanging around that area. This testimony by Officer Jarka was the first time the prosecutor, Ms. Trosch, the Court, or Officer Helms had heard that Officer Jarka, or anyone other than Defendant, had any familiarity with the other suspect.
16) After Officer Jarka testified, Ms. Trosch made the motion to dismiss for failure of the State to comply with its discovery obligations. She contended that the State had a duty to find out that Officer Jarka recognized the other suspect and to supply that information as discovery.
17) The Court asked the ADA if the State had any additional information on the identity of the other suspect. In response, Officer Jarka stated that his name is Calvin Murray and that his age is late 30s or early 40s. This information was checked through local criminal records, and it was determined that Mr. Murray's full name is Calvin Willis Murray, date of birth November 8, 1961. The last address listed for Mr. Murray was in a government-assisted housing development that has since been razed.
18) The jury was excused until 9:30 a.m. Wednesday morning (Tuesday was a state holiday). The attorneys and the law-enforcement officers involved in the case were excused until 9:00 on Wednesday. The Court directed the prosecutor to check all local and state arrest and detention records for any record of Calvin Murray and to request the officers in the area surrounding the scene of the offense to attempt to locate Mr. Murray. A recess was taken at 11:20 a.m. on Monday.
19) On Wednesday morning, it was reported that Mr. Murray had not been located. Officer Helms had located an arson case report from earlier this year in which Calvin Murray was listed as a witness. Officers went to the address listed on the report as Mr. Murray's address and found that it was his sister's residence. She said he did not live there and she had not seen nor heard from him in weeks. The ADA reported he was not able to find any further information on Mr. Murray in state or local court-related files or computerized records.
20) Ms. Trosch was asked what efforts she and her investigator made to find "LB." She said the only information Defendant could give them about "LB" is that he is a "crack" cocaine dealer and that Defendant and "Cowboy" were looking for him on the offense date to buy "crack." She did not feel "LB" was as important a witness to the defense as "Cowboy," so neither she nor her investigator made any further attempt to locate "LB."
Based on these and other findings of fact, the trial court made the following conclusions of law:
1) Defendant's exculpatory statement to Officer Helms should have alerted the State that the other suspect, who was detained by CMPD officers and apparently questioned about the case, was a potentially favorable witness for Defendant.
2) The prosecutor should have asked Officer Helms to investigate whether anyone involved in the investigation had information about the identity and contact information for that person.
3) The State's failure to investigate this potentially exculpatory information, under the circumstances of this case, constitutes a violation of the State's discovery responsibilities.
4) The failure of the State to take the above-described steps to comply with its discovery obligations was not done in bad faith. It did not result in "last minute piecemeal disclosure" described in State v. Cook, 362 NC 285, 292 (2008), nor "sandbag delivery" described in State v. Payne, 327 NC 194, 202 (1990).
5) In addition, the above-described violation had minimal prejudicial effect on Defendant. The testimony of Calvin Murray, if he is the person Defendant identified as "Cowboy," would be relevant only to corroborate Defendant's description of his intention when he got into the vehicle. Defendant said in his statement to Officer Helms that he told "Cowboy" he thought the vehicle belonged to "LB" and that he intended only to move it to scare "LB."
6) Any testimony by "Cowboy" as to what Defendant told him about his intentions would not be admissible unless Defendant first testified concerning his intentions and what he told "Cowboy."
7) Defendant faced an habitual felon charge if the jury convicted him of attempted larceny of a motor vehicle. He has a very lengthy prior criminal record, including multiple convictions for the same or similar offenses as in this case, and he is a prior record level VI, even for habitual felon sentencing purposes. Defendant did not testify in this case, and it is very doubtful he would have testified if "Cowboy" had been located and was willing to testify.
8) The sanction the Court imposed, pursuant to N.C.[Gen. Stat.] § 15A-910(a)(2), of granting a recess to allow the defense attorney and her investigator, with the assistance of the District Attorney's Office and the CMPD, to try to locate Calvin Murray, a/k/a "Cowboy," is an appropriate and sufficient sanction, under the circumstances of this case, for the State's violation of its discovery responsibilities.
For these reasons, the trial court denied Defendant's dismissal motion. On appeal, Defendant contends that the trial court abused its discretion by refusing to dismiss the felonious larceny of a motor vehicle charge since Defendant's "intent when he entered the police operated bait car was a key element of the crime" and that "the totality of the circumstances of withholding the information about exculpatory evidence justifies only a decision to dismiss."
In his brief, Defendant contends that the trial court's ruling violated various provisions of the federal and state constitutions, including his right to the effective assistance of counsel, to confront the witnesses against him, to due process of law, to the equal protection of the laws, to mount a defense, to disclose exculpatory evidence, and to the preservation of exculpatory evidence. However, Defendant did not advance any of these constitutional claims in the trial court. As a result of the fact that this Court does not consider constitutional issues that were not presented for consideration to the trial court, N.C.R. App. P. 10(b)(1) (stating that "[i]n order to preserve a question 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"); State v. Bussey, 321 N.C. 92, 95, 361 S.E.2d 564, 566 (1987) (stating that, "[b]ecause defendant failed to raise the alleged constitutional errors before the trial court, he has waived these arguments, and they may not be raised for the first time in this Court"), we decline to consider Defendant's constitutional challenges to the trial court's order.
Assuming arguendo that the trial court correctly concluded that "[t]he State's failure to investigate . . . potentially exculpatory information" constituted a violation of the State's discovery obligations, we cannot say the trial court abused its discretion by granting a recess to allow the defense counsel and her investigator, "with the assistance of the District Attorney's Office and the [Charlotte-Mecklenburg Police Department], to try to locate Calvin Murray, a/k/a `Cowboy,'" rather than dismissing the charge against Defendant. See State v. Fenn, 94 N.C. App. 127, 133, 379 S.E.2d 715, 719, disc. review denied, 325 N.C. 548, 385 S.E.2d 504 (1989) (finding no abuse of discretion where the trial court granted a recess in order to allow the defendant to review evidence not produced by the State in discovery). Defendant has not challenged the trial court's conclusion that the State did not act in bad faith at the time that it failed to provide Defendant with the information in its possession concerning "Cowboy's" identity. In addition, the record contains no evidence other than Defendant's post-arrest statement tending to show that, had he been located, "Cowboy" would have corroborated Defendant's claim to have entered the bait car for the purpose of playing a trick on "LB." Finally, granting a continuance in order to allow additional investigation is a recognized sanction authorized by N.C. Gen. Stat. § 15A-910(a)(2). As a result, we are unable to conclude that the trial court abused its discretion by electing to address the State's failure to inform Defendant of the information in its possession concerning "Cowboy's" identity by granting a two day continuance and ordering the State to assist in Defendant's efforts to locate "Cowboy" rather than dismissing the attempted felonious larceny of a motor vehicle charge against Defendant.
In its conclusions of law, the trial court opined that the State's failure to disclose the information in Officer Jarka's possession concerning "Cowboy's" identity did not prejudice Defendant because "[a]ny testimony by `Cowboy' as to what Defendant told him concerning his intentions would not be admissible unless Defendant first testified concerning his intentions and what he told `Cowboy'" and because the trial court believed, given Defendant's lengthy criminal record, that "it is very doubtful he would have testified if `Cowboy' had been located and was willing to testify." The trial court's conclusions concerning the likelihood that Defendant would have been able to present "Cowboy's" testimony overlooks N.C. Gen. Stat. § 8C-1, Rule 803(3), which provides an exception to the prohibition against the presentation of hearsay evidence for "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)[.]" See State v. Bryant, 337 N.C. 298, 310, 446 S.E.2d 71, 78 (1994) (holding that "defendant's statement to his sister that he was going to meet two guys to buy stolen merchandise was admissible under Rule 803(3) as a statement of his then-existing intent to engage in a future act"). However, the fact that several of the trial court's conclusions may be erroneous does not preclude us from upholding the result reached by the trial court given that the remaining conclusions are correct and support the trial court's decision. L.A. Reynolds Co. v. State Highway Commission, 271 N.C. 40, 52, 155 S.E.2d 473, 483 (1967) (stating that, since "conclusions of law (2) and (4) support [the trial court's] judgment that plaintiff recover from defendant the sum of $16,400," "it is not necessary for us to pass upon the correctness of the challenged portion of . . . conclusion of law (3)").
C. Clerical Error
Defendant contends that the trial court erred by entering a judgment reflecting that Defendant had been convicted of "larceny of a motor vehicle" after the jury returned a verdict finding Defendant guilty of "attempted larceny of a motor vehicle." We agree.
After accepting the jury's verdict, the trial court stated in imposing sentence that, "[t]he jury having found the defendant guilty of the felony of attempted larceny of a motor vehicle and the defendant having entered a plea of having obtained the status of a habitual felon, the defendant will be sentenced in the Offense Class C, Prior Record Level VI[,]" and that "I would sentence the defendant in the presumptive range to a minimum of 167, maximum 210 months in the Department of Corrections." The written judgment signed by the trial court, however, indicates that Defendant had been convicted of "larceny of a motor vehicle," a Class H felony, rather than attempted larceny of a motor vehicle, a Class I felony. Even so, the trial court correctly categorized Defendant as a prior record Level VI offender and correctly sentenced Defendant as a Class C felon in light of his plea of guilty to having attained the status of an habitual felon. Thus, the erroneous statement on the judgment to the effect that Defendant had been convicted of felonious larceny of a motor vehicle had no impact upon the sentence imposed upon him and constituted a mere clerical error.
"When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record `speak the truth.'" State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999)); see also State v. Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18 (2003) (defining clerical error as "`an error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination'") (quoting State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000)). As a result, we conclude that this case should be remanded to the trial court for the limited purpose of correcting the clerical error contained in the trial court's judgment, so that the judgment will reflect that judgment was imposed based upon Defendant's conviction for attempted larceny of a motor vehicle rather than larceny of a motor vehicle. Since the trial court clearly understood the nature of the offense for which Defendant was being sentenced and since the sentence imposed upon Defendant correctly reflected the jury's verdict and the prior record level that the trial court deemed appropriate, we expressly do not remand this case to the trial court for resentencing.
NO ERROR in part; REMANDED for correction of judgment in part.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).