Opinion
No. COA12–994.
2013-03-19
STATE of North Carolina v. Kobaski Rene CLAROS, Defendant.
Roy Cooper, Attorney General, by Tracy J. Hayes, Special Deputy Attorney General, for the State. M. Alexander Charns for defendant-appellant.
Appeal by defendant from judgments entered 13 January 2012 by Judge Robert T. Sumner in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 January 2013. Roy Cooper, Attorney General, by Tracy J. Hayes, Special Deputy Attorney General, for the State. M. Alexander Charns for defendant-appellant.
DAVIS, Judge.
Kobaski Rene Claros (“defendant”) appeals from his convictions for felonious breaking and entering, felonious larceny after breaking and entering, and resisting a public officer. After careful review, we find no error.
Factual Background
The State's evidence at trial tended to show the following facts: On 20 September 2009, Jason Cook (“Cook”) noticed a black, older model truck parked outside the home of his neighbors, the Pearsalls. He had never seen the car there before and knew that the Pearsalls were out of town on vacation. Cook noticed three people congregating by the cab of the truck and called 911 to report the suspicious activity. While he was on the phone with the dispatcher, Cook heard five loud bangs and his neighbor's security alarm going off. Cook observed the truck speed off, noting two people in the cab and three in the bed of the truck.
Officer M.W. Blaich of the Charlotte–Mecklenburg Police Department (“Officer Blaich”) was patrolling nearby in a marked police vehicle and responded to the dispatcher's call. He noticed a truck matching the dispatcher's description turning into a Texaco station on the corner of Mallard Creek Road and Prosperity Church Road. Officer Blaich observed defendant in the bed of the truck and three other individuals in the cab of the truck.
Officer Blaich pulled behind the vehicle, activated his blue lights and siren, and initiated a traffic stop. The driver of the truck attempted to flee from the vehicle but was blocked by the gas pump. Defendant jumped out of the bed of the truck, and Officer Blaich ordered him to lie on the ground and remain still. When he approached defendant and the driver for the purpose of placing them in handcuffs, defendant responded by pushing Officer Blaich against the truck. He and defendant struggled and fell to the ground. Officer Blaich then heard the truck's engine accelerate, at which time he disengaged from defendant, fearing that both of them would be hit by the vehicle. Defendant and the driver escaped but were later apprehended.
James Pearsall (“Pearsall”), the homeowner, was contacted by his home security company that same day and notified about the break-in. He returned home and saw that the front door was open and the back door had been kicked in. Pearsall noticed that a big screen television, a DVD player, and a pair of surround sound speakers were missing from the living room. Police officers took him to the Texaco station where the truck previously occupied by defendant was parked. Pearsall identified several of the items in the back of the truck as the ones stolen from his home. He also noticed a second television in the bed of the truck that resembled one kept in the upstairs bedroom of his home. When he returned home, he verified that this television was missing from the upstairs bedroom and confirmed that the second television in the truck was, in fact, the one he owned.
Defendant was charged with felonious breaking and entering, felonious larceny after breaking and entering, felonious possession of stolen goods, resisting a public officer, and assault on a government officer. A jury trial was held on 9 January 2012. The jury convicted defendant of felonious breaking and entering, felonious larceny after breaking and entering, felonious possession of stolen goods, and resisting a public officer. The jury found defendant not guilty of assault on an officer.
The trial court arrested judgment on the felonious possession of stolen goods offense and consolidated the remaining offenses into one judgment. Defendant was sentenced to a presumptive-range term of eight to ten months imprisonment to begin at the expiration of all sentences which the defendant was presently obligated to serve. Defendant gave notice of appeal in open court.
Analysis
I. Sufficiency of Indictment
Defendant first argues that the trial court lacked jurisdiction to adjudicate the resisting a public officer charge because the indictment was fatally defective. We disagree.
It is well established in North Carolina that “ ‘[t]here can be no trial, conviction, or punishment for a crime without a formal and sufficient accusation. In the absence of an accusation the court a[c]quires no jurisdiction [whatsoever], and if it assumes jurisdiction a trial and conviction are a nullity.’ “ State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712–13 (2008) (quoting State v. Kelso, 187 N.C.App. 718, 722, 654 S.E.2d 28, 31 (2007)) (alterations in original). A facially invalid indictment may be attacked at any time even if the issue was not raised at trial. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341,cert. denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000).
If the reviewing court determines that a judgment was entered by the trial court without jurisdiction, “the appropriate action ... is to arrest judgment or vacate any order entered without authority.” State v. Felmet, 302 N.C. 173, 176, 273 S.E.2d 708, 711 (1981). We review de novo questions concerning the sufficiency of an indictment. State v. Justice, ––– N.C.App. ––––, ––––, 723 S.E.2d 798, 800 (2012).
A valid indictment for the charge of resisting a public officer must: (1) identify the specific public officer by name; (2) state the official duty being discharged or attempting to be discharged; and (3) describe generally how the defendant resisted the public officer. State v. Swift, 105 N.C.App. 550, 553, 414 S.E.2d 65, 67 (1992). Here, the indictment alleged that defendant “did unlawfully and willfully resist, delay, and obstruct M.W. Blaich, a public officer holding the office of Charlotte–Mecklenburg Police Officer, by not obeying said officer[']s command. At the time, the officer was discharging a duty of the office, to wit: conducting an investigation.”
Defendant relies primarily on State v. Smith, 262 N.C. 472, 137 S.E.2d 819 (1964), and State v. Scott, 241 N.C. 178, 84 S.E.2d 654 (1954), to support his argument that his indictment for resisting a public officer was fatally defective. The present case, however, is easily distinguishable from both Smith and Scott. In Smith, the State conceded that the indictment was defective because it did not include the name of the police officer that the defendant was accused of resisting. 262 N.C. at 474, 137 S .E.2d at 820. In Scott, the indictment failed because it stated only that the defendant did unlawfully “resist, delay, and obstruct a public officer in discharg[ing] and attempting to discharge the duty of his office.” 241 N.C. at 178–79, 84 S.E.2d at 655.
This case is more analogous to our recent decision in State Hemphill, ––– N.C.App. ––––, 723 S.E.2d 142 (2012). In Hemphill, this Court held that an indictment alleging that the defendant resisted a public officer “by not obeying [Officer Adkins's] command” adequately stated how the defendant resisted the officer and was, therefore, not fatally defective. Id. at –––, 723 S.E.2d at 148. As in Hemphill, the indictment here was sufficiently specific to put defendant on notice of the events that would be brought out at trial and to protect defendant from subsequent prosecution for the same offense. Id. Thus, we find that the indictment was not fatally defective, and the trial court had jurisdiction to try defendant on the resisting a public officer charge.
II. Sufficiency of Trial Court's Judgment
Defendant next argues that the trial court erred by failing to indicate on the judgment the specific sentence to which he was to serve consecutive prison time. This argument is without merit.
At sentencing, the trial court arrested judgment on the felonious possession of stolen goods charge and consolidated the remaining offenses for judgment. The trial court sentenced defendant to eight to ten months imprisonment and stated orally that the sentence was “to run consecutive with his current sentence in 08–CRS–236066.” In the written judgment, the trial court selected the option on the form stating that “[t]he sentence imposed above shall begin at the expiration of all sentences which the defendant is obligated to serve.”
Defendant contends that it was error for the trial court to not specifically write in the written judgment the file number, date, and county of the sentence as to which defendant was to serve consecutive time. Defendant does not cite any statutory authority or case law to support his argument, instead merely claiming that “[t]he rule of lenity suggests that one should not serve a sentence consecutively to one not specifically named in the judgment.” However, as the State correctly notes, the rule of lenity “only applies to the construction of ambiguous statutes.” State v. Ellison, –––N.C.App. ––––, ––––, n. 14, 713 S.E.2d 228, 244, n. 14 (2011). As defendant does not assert the ambiguity of any statutes in this appeal, this contention must fail.
III. Denial of Motion to Dismiss
Defendant's final argument is that the trial court erred in denying his motion to dismiss the felonious larceny charge because the State failed to offer into evidence the specific items—or photographs of the items—that were stolen. Defendant concedes that his argument is not based on existing law but asks this Court to expand the doctrine of corpus delicti.
A trial court's denial of a defendant's motion to dismiss is reviewed de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E .2d 29, 33 (2007). On appeal, this Court 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....’ “ 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). The evidence must be viewed in the light most favorable to the State, with every reasonable inference drawn in the State's favor. State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995).
Felonious larceny is defined as “the felonious taking by trespass and carrying away by any person of the goods or personal property of another, without the latter's consent and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker's own use.” State v. Ford, 195 N.C.App. 321, 323, 672 S.E.2d 689, 690 (2009) (citation and quotation marks omitted). Defendant concedes that, “[t]aken in the light most favorable to the State, there is evidence that the accused took a TV from Mr. Pearsall's home.” However, he asks this Court to expand the doctrine of corpus delicti by requiring the State to actually place the physical items at issue into evidence, thereby proving that “the items alleged to be stolen were the items that were in fact taken[.]”
The corpus delicti of a crime “refers to the fact of the specific loss or injury sustained,” and the doctrine of corpus delicti requires the State to prove that a crime has actually been committed. State v. Smith, 362 N.C. 583, 589, 669 S.E.2d 299, 304 (2008) (internal quotation marks omitted). Here, the State presented substantial evidence that a larceny occurred, and the trial court properly denied defendant's motion to dismiss. Pearsall testified at trial that when he came home, he noticed that his big screen television, DVD player, and pair of surround sound speakers were missing from his living room. He identified the items in the back of the truck as the ones stolen from his home. He also noticed a second television in the truck that resembled one he kept in his upstairs bedroom, and he subsequently confirmed that this television had been stolen from his home as well.
Thus, the State presented sufficient evidence to prove that a crime had been committed, and the admission into evidence of the stolen items themselves (or photographs of these items) was unnecessary to establish the corpus delicti of larceny. The trial court did not err in denying defendant's motion to dismiss. We decline defendant's invitation to expand the corpus delicti doctrine in this context.
Conclusion
For the reasons stated above, we conclude that defendant received a trial free from error.
NO ERROR. Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).