Opinion
No. COA11–405.
2012-05-1
STATE of North Carolina v. Joseph Dewayne SHERLIN, Defendant.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Scott T. Slusser, for the State. Michele Goldman for defendant-appellant.
Appeal by defendant from judgment entered on or about 13 October 2010 by Judge Richard L. Doughton in Superior Court, Buncombe County. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Scott T. Slusser, for the State. Michele Goldman for defendant-appellant.
STROUD, Judge.
Joseph Dewayne Sherlin (“defendant”) appeals from a conviction for felonious larceny and having attained habitual felon status. Defendant contends that the trial court committed plain error in its felonious larceny instruction because the instruction permitted the jury to find him guilty of felonious larceny without finding that he had committed a breaking or entering. We find no error.
On 21 May 2009, Kim Hensley discovered that her Buncombe County home had been broken into and that several items were missing, including about $10,000 of jewelry. Ms. Hensley had been away from home between about 10:00 a.m. and about 2:00 p.m. A short time after the incident, Ms. Hensley contacted her mail carrier, Latora Vess, to determine if Ms. Vess had observed any unusual activity that day. Ms. Vess testified that she saw a truck parked near Ms. Hensley's home on 21 May 2009 at about 11:00 a.m., and that a man was walking from the truck toward the house.
At 2:10 p.m. on 21 May 2009, defendant sold jewelry to a shop in Greenville, South Carolina, for nearly $2,200. A Greenville County Sheriff's deputy contacted Buncombe County detectives and informed them of the jewelry sale. Ms. Hensley and her husband were able to identify several pieces of the jewelry defendant sold to the shop. On 9 June 2009, the shop's manager called the Greenville Sheriff's Department because defendant had returned. When deputies arrived, they found defendant's truck parked in the shop's lot and verified the license plate.
At trial, the trial court gave the jury the following instruction on the elements of felonious larceny:
First, that the defendant took property belonging to another person.
Second, that the defendant carried away the property.
Third, that the victim did not consent to the taking and carrying away of the property.
Fourth, that at the time of the taking, the defendant intended to deprive the victim of its use permanently.
Fifth, that the defendant knew he was not entitled to take the property.
And sixth, that the property was taken from a building after a breaking or entering.
Defendant did not object to the instruction as given or request any additional instructions related to felonious larceny.
During its deliberations, the jury submitted two questions to the trial court: “Can we please get another verification of the larncey [sic] law guidelines?” and “Does the larncey [sic] have to be the aftermath effect of the break entering?” In response to the jury's questions, the trial court repeated the felonious larceny instruction. Defendant did not object or request other instructions. The jury then found defendant guilty of felonious larceny and having attained habitual felon status, but not guilty of breaking or entering. The trial court imposed a term of 168 to 211 months imprisonment. Defendant gave notice of appeal.
In his sole argument on appeal, defendant contends that the trial court committed plain error by failing to instruct the jury that it was required to find he took property after committing a breaking or entering in order to find him guilty of felonious larceny. We disagree.
In the standard of review section of his brief, defendant acknowledges that he did not request a specific jury instruction or object to the trial court's larceny instruction, and that we must review the instruction given for plain error pursuant to N.C.R.App. P. 10(a)(4). Plain error is “a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and quotation marks omitted) (emphasis in original). Under plain error analysis, a defendant is entitled to reversal “only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
“In instructing the jury, the trial court must declare and explain the law arising on the evidence, state the evidence to the extent necessary to explain the application of the law and refrain from expressing an opinion as to whether or not a fact has been proved.” State v. Greenidge, 102 N.C.App. 447, 451, 402 S.E.2d 639, 641 (1991) (citing N.C. Gen.Stat. § 15A–1232). “However, the trial court need not instruct the jury with any greater particularity than is necessary to enable the jury to apply the law to the substantive features of the case arising on the evidence when, as here, the defendant makes no request for additional instructions.” State v. Atkinson, 39 N.C.App. 575, 581, 251 S .E.2d 677, 682 (1979). “The charge of felonious larceny requires that the State prove that the defendant took property from the victim either with a value of more than $1,000 or after a breaking or entering.” State v. Milligan, 192 N.C.App. 677, 682, 666 S .E.2d 183, 187 (2008) (citing N.C. Gen.Stat. § 14–72).
In this case, as defendant concedes, the trial court instructed the jury on the offense of felonious larceny by using the North Carolina Pattern Jury Instruction for that offense. It is a well-established principle that “the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions.” State v. Ballard, 193 N.C.App. 551, 555, 668 S.E.2d 78, 81 (2008) (citation and quotation marks omitted).
Nevertheless, defendant now contends that the use of the passive voice in the sixth element of the pattern instruction allowed the jury to find that defendant was guilty of felonious larceny even if it found he was not responsible for the breaking or entering. In this way, defendant contends, the instruction allowed the jury to reach inconsistent verdicts.
In reviewing this argument, we first note that the jury instruction must be viewed as a whole and in context. State v. McNeil, 196 N.C.App. 394, 400, 674 S.E.2d 813, 818 (2009). The first element of the instruction states that “the defendant took property belonging to another person[.]” The sixth element continues that “the property was taken from a building after a breaking or entering.” Although the sixth element, read in isolation, utilizes the passive voice, the instruction as a whole directs the jury to consider defendant's responsibility for the entire chain of events, including the breaking or entering that led to the subsequent taking of property. Thus, the instruction properly directed the jury that in order to find defendant guilty of felonious larceny, it was necessary to find that he took property after a breaking or entering. In addition, the evidence introduced at trial supports the instruction given. Thus, we hold that the instruction was a proper declaration of the law arising from the evidence.
Furthermore, as to defendant's argument that the instruction yielded inconsistent verdicts, we note that verdicts that are inconsistent are not necessarily invalid. “In North Carolina jurisprudence, a distinction is drawn between verdicts that are merely inconsistent and those which are legally inconsistent and contradictory.” State v. Mumford, 364 N.C. 394, 398, 699 S.E.2d 911, 914 (2010) (emphasis in original) (citation omitted). It is firmly established that when there is sufficient evidence to support a verdict, “mere inconsistency will not invalidate the verdict.” State v. Davis, 214 N.C. 787, 794, 1 S.E.2d 104, 108 (1939) (citation omitted). Thus, although the jury's verdicts on the offenses of felonious larceny and breaking or entering do appear to be inconsistent, the felonious larceny verdict is still proper because it is supported by the evidence. Beyond speculation, it is impossible to determine how the jury reached its verdicts. Defendant, therefore, cannot rely on inconsistent verdicts to support his claim that he was prejudiced by the larceny instruction given.
Accordingly, we hold defendant has failed to demonstrate that the trial court's decision to give the North Carolina Pattern Jury Instruction on felonious larceny amounted to plain error.
NO ERROR. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).