Opinion
NO. COA12-227
01-15-2013
STATE OF NORTH CAROLINA v. MICHAEL ANTHONY MABERSON
Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State. Robert W. Ewing for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Guilford County
File No. 09 CRS 80879, 80884-
85, 24517
Appeal by defendant from judgment entered 22 July 2011 by Judge Patrice A. Hinnant in Guilford County Superior Court. Heard in the Court of Appeals 31 December 2012.
Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State.
Robert W. Ewing for defendant-appellant.
ERVIN, Judge.
Defendant Michael Anthony Maberson appeals from judgments sentencing him to 80 to 105 months imprisonment based upon jury verdicts convicting him of felonious breaking or entering, felonious larceny, felonious possession of stolen property, assault on a governmental official with a dangerous weapon, and felonious fleeing to elude arrest and Defendant's plea of guilty to having attained the status of an habitual felon. On appeal, Defendant contends that the trial court erred by denying his motion to dismiss the felonious larceny charge on variance-related grounds and by failing to arrest judgment on the possession of stolen property charge given Defendant's conviction for stealing the same property. After careful consideration of Defendant's challenges to the trial court's judgment, we conclude that, while the trial court did not err by denying Defendant's dismissal motion, Defendant's conviction for possession of stolen property should be vacated and that this case should be remanded to the Guilford County Superior Court for resentencing.
I. Factual Background
A. Substantive Facts
At approximately 1:53 a.m. on 28 May 2009, Officer Keith Springs of the Greensboro Police Department observed a blue sedan parked in front of a Family Dollar store located at the North O'Henry Shopping Center. Officer Springs saw a male exit the sedan, approach the store, and begin kicking the front door. As Officer Springs drove into the parking lot, the blue sedan left the area. Upon noticing that the glass on the front door of the Family Dollar store was broken, Officer Springs began to follow the sedan and activated his blue lights.
After Officer Springs attempted to stop the blue sedan, the vehicle pulled into the parking lot of an apartment complex. At that point, Officer Springs ordered the driver several times to exit the vehicle and show his hands. The driver, however, refused to obey Officer Springs' commands. As a result, Officer Springs approached the driver's side window and observed Defendant, with whom he was acquainted, in the driver's seat. Although Officer Springs gave additional verbal instructions, Defendant ignored these commands and drove away.
After leaving the scene of this initial stop, the blue sedan reached speeds of approximately 60 miles per hour in a 30 mile per hour zone. In addition, the blue sedan ran two stop signs, drove in the wrong lane of travel for some distance, and crossed the median in order to return to the correct side of the street. As a result, Officer Springs received authorization to perform a mobile roadblock. However, when pursuing officers attempted to conduct the mobile roadblock, Defendant pulled to the left, sideswiped a police vehicle, and drove away. After escaping the mobile roadblock, the blue sedan ran another stop sign.
Ultimately, the pursuing officers decided to perform a Precision Immobilization Technique. Although the officers' initial attempt at immobilizing the blue sedan failed, a second such maneuver was successful. After the blue sedan came to a stop, Defendant fled on foot. Ultimately, Officer Springs apprehended Defendant in a nearby back yard. Baby wipes, diapers, bibs, and burp cloths were recovered from the blue sedan.
Officer Anthony Hallinan of the Greensboro Police Department went to the Family Dollar store for the purpose of securing the crime scene. At that time, Officer Hallinan noted that the right side of the door had "heavy spider web type cracking to the glass" and that the glass on the left side of the door was completely broken. In addition, Officer Hallinan observed that there were packages of baby socks outside the door and by the curb and that several packages of diapers and gift bags were on the floor of the aisle that contained baby items.
B. Procedural History
On 28 May 2009, Magistrate's Orders charging Defendant with felonious breaking or entering, assault with a deadly weapon, and felonious fleeing to elude arrest were issued. On 20 July 2009, the Guilford County grand jury returned bills of indictment charging Defendant with felonious breaking or entering, felonious larceny, felonious possession of stolen property, assault on a governmental official with a deadly weapon, felonious fleeing to elude arrest, and with having attained the status of an habitual felon. The charges against Defendant came on for trial before the trial court and a jury at the 18 July 2011 criminal session of the Guilford County Superior Court. At trial, defendant unsuccessfully moved to dismiss the charges that had been lodged against him on the grounds that the record did not contain sufficient evidence tending to show that he had been driving the blue sedan. On 22 July 2011, the jury returned verdicts convicting Defendant of felonious breaking or entering, felonious larceny, felonious possession of stolen property, assault on a governmental official with a deadly weapon, and felonious fleeing to elude arrest. On the same date, Defendant entered a plea of guilty to having attained habitual felon status. Based upon the jury's verdicts and Defendant's plea, the trial court consolidated Defendant's substantive convictions for judgment and ordered that he be imprisoned for 80 to 105 months. Defendant noted an appeal to this Court from the trial court's judgment.
The trial court did dismiss two additional counts of assault on a governmental official with a dangerous weapon which had been lodged against Defendant.
II. Legal Analysis
A. Variance
In his first challenge to the trial court's judgment, Defendant contends that the trial court erred by denying his motion to dismiss the larceny charge because there was a fatal variance between the indictment and the proof presented at trial. We do not find this argument persuasive.
"The issue of variance between the indictment and proof is properly raised by a motion to dismiss." State v. Baldwin, 117 N.C. App. 713, 717, 453 S.E.2d 193, 195, cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995). In the event that a defendant fails "to argue a variance between his indictment and the evidence presented at trial . . . [,] he has waived this issue for appeal." State v. Curry, 203 N.C. App. 375, 385, 692 S.E.2d 129, 138, disc. review denied, 364 N.C. 437, 702 S.E.2d 496 (2010). At trial, Defendant did not specifically argue that the felonious larceny charge should be dismissed on variance-related grounds. As a result, Defendant has failed to preserve this issue for appellate review. See State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (stating that, "[i]n order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent").
In light of his trial counsel's failure to advance a variance-based argument in support of Defendant's dismissal motion, Defendant argues that he was denied his right to effective assistance of counsel. Given that fact, we will address Defendant's variance-based challenge to his larceny conviction on the merits. See State v. Gayton-Barbosa, 197 N.C. App. 129, 140, 676 S.E.2d 586, 593 (2009) (stating that, "pursuant to N.C.R. App. P. 2, we will hear the merits of defendant's claim despite the rule violation because defendant also argues ineffective assistance of counsel based on counsel's failure to make the proper motion to dismiss").
According to Defendant, a fatal variance existed between the indictment charging him with felonious larceny and the evidence adduced at trial given that the indictment alleged that Defendant "unlawfully, willfully, and feloniously did steal, take, and carry away diapers, clothing and other various items, the personal property of Family Dollar, Inc.," while the State's witnesses simply referred to the store as "Family Dollar." As a result, Defendant asserts that the State failed to prove that the property in question had been taken from any corporate entity.
In State v. Wyatt, 254 N.C. 220, 118 S.E.2d 420 (1961), an indictment charging the defendant with embezzlement alleged that property had been taken from "Pestroy Exterminating Co." A subsequent bill of particulars alleged that the stolen property belonged to "Pestroy Exterminators, Inc." During the trial, various witnesses used those terms and "Pestroy Exterminating Corporation" interchangeably. According to the Supreme Court, "there was no[] fatal variance between [the] allegations and [the] proof, and [] the defendant was informed of the corporation which was the accuser and victim." Id. at 221-22, 118 S.E.2d at 421. Similarly, in this case, "[t]he defendant was adequately informed of the corporation which was the accuser and victim. A variance will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property." State v. Ellis, 33 N.C. App. 667, 669, 236 S.E.2d 299, 301, disc. review denied, 293 N.C. 255, 236 S.E.2d 708 (1977). As a result, there was no fatal variance between the larceny indictment and the proof adduced at trial, a fact which necessitates rejection of Defendant's ineffective assistance of counsel claim.
B. Duplicativeness
Secondly, Defendant contends that the trial court erred by failing to arrest judgment in connection with his possession of stolen goods conviction after entering judgment based on Defendant's conviction for stealing the same property. Defendant's contention has merit.
"[T]hough a defendant may be indicted and tried on charges of larceny, receiving, and possession of the same property, he may be convicted of only one of those offenses." State v. Perry, 305 N.C. 225, 236-37, 287 S.E.2d 810, 817 (1982), overruled on other grounds by State v. Mumford, 364 N.C. 394, 402, 699 S.E.2d 911, 916 (2010). "[C]onsolidation of the convictions for judgment does not cure this error." State v. Owens, 160 N.C. App. 494, 499, 586 S.E.2d 519, 523 (2003). In its brief, the State candidly concedes that the trial court should have arrested judgment with respect to Defendant's conviction of possession of stolen property based upon well-established North Carolina law. As a result, we are required to vacate defendant's conviction for possession of stolen goods and to remand this case to the Guilford County Superior Court for resentencing.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Defendant's challenge to the validity of his felonious larceny conviction lacks merit and that the trial court erred by failing to arrest judgment in connection with Defendant's conviction for felonious possession of stolen property. As a result, this case should be, and hereby is, remanded to the Guilford County Superior Court with instructions that Defendant's conviction for felonious possession of stolen property be vacated and that Defendant be resentenced. With that exception, however, the trial court's judgment should, and hereby does, remain undisturbed.
NO ERROR IN PART; VACATED IN PART AND REMANDED FOR RESENTENCING.
Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).