Opinion
No. 07-905.
Filed February 5, 2008.
Forsyth County, Nos. 06 CRS 55818.
Appeal by defendant from judgment entered on or about 30 January 2007 by Judge A. Moses Massey, in Superior Court, Forsyth County. Heard in the Court of Appeals 14 January 2008.
Attorney General Roy A. Cooper III, by Assistant Attorney General Christopher H. Wilson, for the State. M. Alexander Charns, for defendant-appellant.
The State adduced evidence that on 12 May 2006, Adam Harrell was working as an Asset Protection Specialist at a Target department store in Winston-Salem, North Carolina. While viewing the store's video surveillance monitors in the Asset Protection office, Harrell observed defendant "grabbing handfuls of merchandise" in the razorblade aisle and depositing the merchandise into a clothes hamper in his shopping cart.
Harrell walked onto the sales floor and watched from an adjacent aisle as defendant continued to place packs of razor blades into the clothes hamper for five or six minutes. Defendant then pushed his cart to another area of the store and removed a box containing a child's car seat from the display shelf. Harrell saw defendant open the box, remove the car seat, dump the contents of the clothes hamper into the empty box, and reseal the car seat box with tape. Defendant then pushed the cart around the store several times before "staging" it in the boys' clothing area and exiting store. Harrell notified the store manager of his observations and moved to the front of the store.
Within five minutes, defendant re-entered the store, having changed from a blue plaid shirt into a white t-shirt. Defendant retrieved his shopping cart, proceeded to a check-out lane, and purchased the car seat box, a soda, and a package of razorblades for approximately $58.00. As soon as defendant had exited the store with the merchandise, Harrell intercepted him and led him back to the Asset Protection office. Harrell and law enforcement which had arrived on the scene then emptied the contents of the car seat box into a shopping cart, returned to the check-out area, and scanned each item into a cash register. The register produced an itemized receipt reflecting the total cost of the stolen merchandise as $2,717.89. A copy of the receipt and a photograph of the merchandise found in the car seat box were admitted into evidence and published to the jury. Harrell also recited the receipt's itemized list of merchandise and the corresponding prices to the jury.
Defendant told Harrell and Winston-Salem Police Officer Michael Short that his name was Darius Jones. After arresting defendant for felonious larceny, Short transported him to jail and "processed him, at that point under the name of Darius Jones." Defendant's fingerprints were identified by a technician as belonging to William Thomas Smith. Short returned defendant to the magistrate and did "the paperwork over, but — under the new name[,]" charging him with the additional offense of resisting, delaying, and obstructing a public officer ("RDO").
Defendant offered no evidence at trial. A jury found defendant guilty of felonious larceny and RDO a public officer. Defendant had a prior record level VI and admitted to habitual felon status. The trial court consolidated his substantive offenses and sentenced him to a prison term of 108 to 139 months. Defendant gave notice of appeal in open court.
On appeal, defendant first claims that the trial court erred by refusing to instruct the jury on misdemeanor larceny as a lesser included offense of felonious larceny. In denying defendant's request for the instruction, the court found "no evidence to contradict the value of the property being more than two times the legal amount required to constitute felonious larceny[.]" Defendant now argues that "it was for the jury to believe or disbelieve" Harrell's testimony regarding the value of the merchandise found in the car seat box. Defendant notes that Harrell did not purport to "personally kn[o]w the value or price of each item[,]" and did not state when the cash register used to tally the value of the stolen merchandise "had last been calibrated or checked for error."
The defendant bears the . . . burden, when challenging a jury instruction, to show that the jury was misled or misinformed by the charge as given, State v. Sledge, 297 N.C. 227, 235, 254 [S.E.2d] 579, 585 (1979) or that a different result would have been reached had the requested instruction been given. [N.C. Gen. Stat. § ] 15A-1443(a). . . .
State v. Carson, 80 N.C. App. 620, 625, 343 S.E.2d 275, 278 (1986). It is well established that the trial court must instruct the jury on any lesser included offense which is supported by the evidence. State v. Kyle, 333 N.C. 687, 703, 430 S.E.2d 412, 421 (1993) (quoting State v. Boykin, 310 N.C. 118, 121, 310 S.E.2d 315, 317 (1984)). However, such an instruction is warranted "only where there is evidence that would permit a jury rationally to find a defendant guilty of the lesser offense and acquit him of the greater offense." State v. Barnette, 96 N.C. App. 199, 202, 385 S.E.2d 163, 164 (1989) (citing State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983)). The possibility that the jury might accept some, but not all, of the State's evidence is insufficient alone to warrant a lesser included offense instruction. State v. Franks, 74 N.C. App. 661, 662, 329 S.E.2d 717, 718 (quoting State v. Bradshaw, 27 N.C. App. 485, 487-88, 219 S.E.2d 561, 562), disc. rev. denied, 314 N.C. 333, 333 S.E.2d 493 (1985).
As applied to the case sub judice, the distinction between felonious larceny and the lesser included offense of misdemeanor larceny is the value of the stolen property. See N.C. Gen. Stat. § 14-72(a) (2005); see also State v. Reeves, 62 N.C. App. 219, 223, 302 S.E.2d 658, 660 (1983). "Larceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony. . . . [L]arceny . . . where the value of the property or goods is not more than one thousand dollars ($ 1,000), is a Class 1 misdemeanor." N.C. Gen. Stat. § 14-72(a). For purposes of the larceny statute, "value" denotes "the price which the subject of the larceny would bring in open market — its 'market value' or its 'reasonable selling price,' at the time and place of the theft[.]" State v. Dees, 14 N.C. App. 110, 112, 187 S.E.2d 433, 435 (1972) (citation and internal quotations omitted); accord State v. Morris, 318 N.C. 643, 645 n. 1, 350 S.E.2d 91, 93 n. 1 (1986). This Court has held that the retail price charged by a merchant is sufficient to establish the value of the affected merchandise, and that the price tag affixed to such merchandise may qualify as a "business record[.]" State v. Odom, 99 N.C. App. 265, 272-73, 393 S.E.2d 146, 151 (citing State v. Williams, 65 N.C. App. 373, 374-75, 309 S.E.2d 266, 267 (1983)), disc. rev. denied, 327 N.C. 640, 399 S.E.2d 332 (1990). Likewise, a non-expert "witness who has knowledge of value gained from experience, information and observation may give his opinion of the value of specific personal property." State v. Boone, 39 N.C. App. 218, 221, 249 S.E.2d 817, 820 (1978), modified on other grounds, 297 N.C. 652, 256 S.E.2d 683 (1979).
Defendant did not object to Harrell's testimony, based upon the cash register receipt, that the retail price of the stolen merchandise totaled $2,717.89. Defendant likewise offered no objection when the itemized receipt was admitted into evidence and published to the jury. Therefore, defendant has waived any issue surrounding the foundation or admissibility of the State's evidence of value. N.C.R. App. P. 10(b)(1); see also State v. McLawhorn, 43 N.C. App. 695, 698, 260 S.E.2d 138, 140 (1979), disc. rev. denied, 299 N.C. 123, 261 S.E.2d 925 (1980). In light of defendant's waiver, Harrell's failure to attest to the calibration or accuracy of the cash register, standing alone, did not support a lesser included offense instruction. Defendant made no showing that the merchandise had a value not exceeding $1,000, or that the State's evidence of value was somehow "equivocal and susceptible of diverse inferences" on this question. State v. Morris, 318 N.C. 643, 645-46, 350 S.E.2d 91, 93 (1986) (citing State v. Jones, 275 N.C. 432, 438, 168 S.E.2d 380, 384 (1969)). "Since all the evidence in the present case indicated that the value of the stolen property exceeded $[1,0]00, the trial court did not err by failing to instruct as to the lesser included offense of misdemeanor larceny." State v. Reese, 31 N.C. App. 575, 578, 230 S.E.2d 213, 215 (1976)." This assignment of error is overruled.
Defendant next contends that he was denied effective assistance of counsel at trial because counsel failed to request recordation of the jury selection, the parties' opening statements and closing arguments, and all bench conferences. Defendant concedes that he is unable to demonstrate any specific prejudice caused by counsel's omission, but avers that the lack of a transcript of these proceedings "deprived defendant of a full and adequate and complete appeal[.]"
For a claim of ineffective assistance of counsel, "the defendant must show that counsel's performance was deficient. . . . [and that] the deficient performance prejudiced the defense." State v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (2002) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed. 2d 674, 693 (1984)). Defendant has already conceded he cannot show the requisite element of prejudice for this claim. See id.
Our general statutes provide for the recordation of trial proceedings as follows:
(a) The trial judge must require that the reporter make a true, complete, and accurate record of all statements from the bench and all other proceedings except:
(1) Selection of the jury in non capital cases;
(2) Opening statements and final arguments of counsel to the jury; and
(3) Arguments of counsel on questions of law.
(b) Upon motion of any party or on the judge's own motion, proceedings excepted under subdivisions (1) and (2) of subsection (a) must be recorded. . . .
N.C. Gen. Stat. § 15A-1241(a)-(b) (2005); see also State v. Cummings, 332 N.C. 487, 497, 422 S.E.2d 692, 697 (1992) (determining that "the phrase 'statements from the bench' [in N.C. Gen. Stat. § 15A-1241(a)] does not include private bench conferences between trial judges and attorneys"). We have previously declined to adopt a "per se rule granting a new trial where counsel neither requests nor the trial court requires that the entire trial, jury selection, arguments of counsel and bench conferences are recorded." State v. Verrier, 173 N.C. App. 123, 130, 617 S.E.2d 675, 679-80 (2005). Although Verrier involved aclaim of ineffective assistance of appellate counsel, rather than trial counsel, we see no basis to depart from its holding on this issue. See id. To find ineffective assistance of counsel in this circumstance would effectively rewrite N.C. Gen. Stat. § 15A-1241(a)-(b) to require recordation of the aforementioned portions of every criminal trial. As this Court explained in Verrier, "It is outside the realm of this Court's function as the judiciary to modify statutory law. That role is reserved for the legislature." Id. at 130, 617 S.E.2d at 680.
The record on appeal includes additional assignments of error not addressed in defendant's appellate brief. Pursuant to North Carolina Rule of Appellate Procedure 28(b)(6), we deem them abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges McGEE and ARROWOOD concur.
Report per Rule 30(e).