Opinion
No. COA09-815
Filed 1 June 2010 This case not for publication
Appeal by defendant from judgment entered 13 August 2008 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 13 January 2010.
Attorney General Roy Cooper, by Assistant Attorney General Sueanna P. Sumpter, for the State. S. Alston Associates, PLLC, by Simoné Frier Alston, for defendant.
Moore County No. 08 CRS 51032-35.
Collins Stephanie Wilson (defendant) was indicted and, after a jury trial, found guilty of felonious breaking or entering of a motor vehicle with the intent to commit larceny therein, misdemeanor larceny, misdemeanor possession of stolen goods, simple assault, and communicating threats for events that occurred on 3 March 2008. Defendant entered a plea of guilty to being a habitual felon and was sentenced to the following terms of imprisonment: for his conviction for felonious breaking and entering of a motor vehicle, 151 to 191 months; for his conviction for misdemeanor larceny, 120 days, to run at the expiration of the sentence for the breaking and entering conviction; for his conviction for communicating threats, 120 days, to run also at the expiration or the sentence for the breaking and entering conviction; and for his conviction for simple assault, 60 days, to run at the expiration of his sentence for communication threats. The court arrested judgment on defendant's conviction for possession of stolen property.
At the same trial, defendant was acquitted of two other charges stemming from an alleged 22 January 2008 incident, but those facts and circumstances are largely beyond the scope of this opinion.
At trial, the State presented evidence that tended to show the following: Early in the morning of 3 March 2008, Eric Turk stepped out of his home to go to work when he noticed that his motion detector light had been tripped and that the door to his truck was open. It was still dark, but Mr. Turk heard a noise and found a man, later identified as defendant, standing in the shadows in front of Mr. Turk's house. The man stated: "I've got a gun. I'll shoot you." Mr. Turk rushed the man and subdued him with the help of a neighbor until the police arrived.
The arresting officer conducted a search of defendant's person and discovered a wallet that Mr. Turk identified as being his. The State showed evidence that suggested that the wallet had been taken from the interior of the vehicle along with other items belonging to Mr. Turk, including a GPS unit. Upon a search of the area where the two men had struggled, some of these items were located scattered about the yard. The next day, Mr. Turk's GPS unit was located in a neighboring yard.
Defendant presented a very different account of the events of 3 March 2008. Defendant claimed that he had come across Mr. Turk's home after a night of heavy drinking with a group of friends. At some point in the evening, his friends beat him up and abandoned him on the side of the road. Defendant claimed on the stand that he approached Mr. Turk's home in an effort to obtain help after being stranded. Finding no answer at Mr. Turk's neighbor's home, defendant claims he began walking towards Mr. Turk's home. On his way he noticed a wallet on the ground and picked it up intending to return it to the owner of the house he was approaching. However, while proceeding towards Mr. Turk's house for assistance, he was rushed, unprovoked, by Mr. Turk.
Defendant appeals his conviction on three grounds: (1) that the trial court erred in its instructions to the jury on the charge of misdemeanor larceny by not listing what items were included under the count; (2) that the trial court erred in denying the defendant's request for an instruction on voluntary intoxication in connection with the charge of communicating threats; and (3) that the trial court erred in sentencing defendant as a level V offender. We find no error in the trial court's rulings.
I
Defendant first argues that, because the trial court did not specify the items alleged to have been taken in connection with the misdemeanor larceny charge, the jury may not have delivered a unanimous jury verdict. Defendant presents the scenario that, since the instruction did not specify if the items to be considered included the wallet, GPS unit, or both, then some of the jurors may have found defendant guilty of misdemeanor larceny of the wallet while others found him guilty in connection with the GPS unit.
However, defendant's argument fails to address the plain meaning of the misdemeanor larceny statute, which does not require such a listing. See N.C. Gen. Stat. § 14-72(a) (2009) ("Larceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony. . . . [L]arceny of property . . . where the value of the property or goods is not more than one thousand dollars ($1,000), is a Class 1 misdemeanor."). Further, this Court has specifically 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." State v. Froneberger, 81 N.C. App. 398, 401, 344 S.E.2d 344, 347 (1986). The Court in Froneberger clearly stated that it is not important exactly what items defendant is alleged to have stolen, but simply that a jury unanimously concluded that, during the transaction in question, defendant stole one or more items. Id. The misdemeanor portion of statute requires only a minimum value for the goods taken.
In addition, the trial court used almost verbatim the pattern jury instructions for misdemeanor larceny which do not call for a listing of the personal property alleged to have been taken. N.C.P.I. — Crim. 216.05 (2002). As the State notes, the jury instructions used in defendant's case specifically limited the jury to considering only the items alleged to have been taken on 8 March 2008. As a result, no constitutional issue arises, and the decision to not list the items was properly made by the trial court. The trial court's ruling is affirmed.
II
Defendant then contends that the trial court erroneously denied his request for a jury instruction on voluntary intoxication in relation to the charge of communicating threats. According to the transcript of the trial court proceedings, the trial court judge denied the motion because the crime was not a specific intent crime to which the defense of voluntary intoxication could apply. We affirm the trial court's ruling.
"Except where a crime requires a showing of specific intent, voluntary intoxication is not a defense to a criminal charge[,]" State v. Jones, 300 N.C. 363, 365, 266 S.E.2d 586, 587 (1980) (quotations and citation omitted), as the defense may only negate the specific intent element of crimes that include such an element. As a result, to determine if a voluntary intoxication defense may be used, it is necessary to determine if the crime of communicating threats is a specific intent crime.
The State points to the plain meaning of N.C. Gen. Stat. § 14-277.1, which states in part that "[a] person is guilty of a Class 1 misdemeanor if without lawful authority [h]e willfully threatens to physically injure the person or that person's child, spouse, or dependent or willfully threatens to damage the property of another." N.C. Gen. Stat. § 14-277.1(a) (2009) (internal numbering omitted). Thus, the State argues, per the plain meaning of the statute, communicating threats is a general intent crime: A defendant violates the statute if he performs the act which it forbids; the State is not required to prove that the defendant intended the threat to be credible or even that the victim believed that it would be carried out.
Defendant's argument in support of finding communicating threats to be a specific intent crime is difficult, if not impossible, to determine. Not only can defendant not point to specific holdings construing this as a specific intent crime, but defendant also neither cites relevant case law nor suggests any possible new statutory interpretation in support of the argument. As a result, this Court holds that communicating threats is a general intent crime, and the trial court properly denied defendant's request to add voluntary intoxication to the jury instructions as a defense to communicating threats.
III
Lastly, Defendant claims that the trial court erred in sentencing him as a level V offender. He argues that he was prejudiced by the prosecutor's use of prior felonies with lower prior record levels for purposes of establishing his habitual felon status. Defendant claims that, while the State did not technically violate the prohibition against double counting, the prosecutor did violate the rule of lenity. The rule of lenity is a principle of statutory construction that "forbids a court to interpret a statute so as to increase the penalty that it places on an individual when the Legislature has not clearly stated such an intention." State v. Boykin, 78 N.C. App. 572, 577, 337 S.E.2d 678, 681 (1985) (citation omitted).
However, as Defendant concedes, this Court has already concluded that the rule of lenity does not apply to limit the prosecutor's choices among prior convictions. See State v. Cates, 154 N.C. App. 737, 740, 573 S.E.2d 208, 210 (2002). In Cates, this Court concluded that the Habitual Felon Act was not ambiguous, that the General Assembly had not limited the prosecutor's choices among prior convictions (with the exception of prohibiting double usage), and that the rule of lenity does not apply to such situations. Id. Defendant acknowledges that this holding in Cates controls this issue, but, instead of distinguishing the case at hand, simply asks this Court to overturn our own precedent as applying it here would impose substantial prejudice on defendant and others situated like him. "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court." In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). As a result, defendant's argument is without merit and overruled.
As to defendant's contention that there was an error in the calculation of the record, defendant expressly stipulated to the record level. Further, we note that, while defendant provides his own list of previous convictions that should have been used as the basis for calculating his prior record level, he does not explain why the trial court erred in counting certain previous felony larceny convictions in the total points he was awarded. As such, we decline to overrule the trial court's calculation, and find no error in its sentencing of defendant as a level V offender.
No error.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).