Opinion
COA22-149
12-20-2022
STATE OF NORTH CAROLINA v. THOMAS L. WALKER
Attorney General Joshua H. Stein, by Assistant Attorney General Dylan Sugar, for the State. Anne Bleyman, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 5 October 2022.
Appeal by Defendant from judgment entered 9 June 2021 by Judge R. Gregory Horne in Watauga County Superior Court, No. 17 CRS 51579
Attorney General Joshua H. Stein, by Assistant Attorney General Dylan Sugar, for the State.
Anne Bleyman, for Defendant-Appellant.
WOOD, Judge.
¶ 1 Defendant appeals from the denial of his motion to dismiss the charges of larceny and breaking into a coin-operated machine, and the matter is before us to determine if sufficient evidence supported the trial court's ruling. Defendant also challenges his enhanced sentence as a habitual felon as being cruel and unusual punishment. After careful review, we find Defendant received a fair trial, free from error and that his constitutional rights were not violated.
I. Background
¶ 2 Tweetsie Railroad, a wild west theme park near the mountain town of Boone, features delightful attractions including train rides, delicious treats, live entertainment, and a thrilling arcade. In the fall of 2017, Jerry Pegram ("Pegram") oversaw the arcade at Tweetsie on behalf of National Amusement, a vending company owned by his sister Marsha Owens ("Owens"). Pegram would periodically visit the arcade to collect money from the arcade machines and ensure they worked properly. As part of his routine, he would exchange quarters from the arcade machines with a cash equivalent from the nearby bill-to-change machine. The earned cash would remain inside the locked collection bins of the arcade machines for a later accounting. Only Pegram and Owens had access to the keys for the machines.
¶ 3 During a regular visit on 25 October 2017, Pegram noticed the lock to access a machine's collection bin appeared misaligned. Pegram opened the compartment to discover the cash he had deposited there only ten days prior was missing. Looking around, Pegram noticed that several other machines also appeared to have been tampered with and had misaligned or misplaced locks. Upon further investigation, he found they contained less than the expected amount of money. Pegram suspected that approximately $1,500.00 was missing. Owens later estimated a loss of $1,856.75 after reviewing earnings for the same period in prior years. Pegram immediately called the police to report the incident. He also contacted the General Manager of Tweetsie who reviewed the arcade's security camera footage.
¶ 4 The footage revealed that, several days prior on 22 October, two men entered the arcade, one of whom had crutches and carried a backpack. The two men visited several arcade machines but did not appear to use them. Instead, one of the men knelt down with the backpack for prolonged periods in front of the locked compartments of certain machines which were the same machines alleged to be missing money and to have tampered locks. Pegram saved a photo of the men in the footage to his phone.
¶ 5 Later, on 28 October, Pegram visited the arcade again and, while there, saw a man with crutches enter. From the photo, Pegram believed that this man, Thomas Walker ("Defendant"), was one of the same men who had visited the arcade on 22 October. The familiar man roamed the arcade and noticed Pegram's presence. Pegram called the General Manager as Defendant left the arcade and drove away with another man. Pegram recorded the vehicle's license plate and alerted law enforcement.
¶ 6 Detective Smith of the Watauga County Sheriff's Office reviewed the security footage, observed the tampered locks, and discovered that the suspects' vehicle belonged to Defendant. Detective Smith visited Defendant's residence to further his investigation but could not find him. He then applied for and received an arrest warrant for Defendant on 3 November charging Defendant with violations of N.C. Gen. Stat. § 14-72(A) (felony larceny) and § 14-56.1 (breaking into a coin-operated machine). Defendant was indicted on 26 November 2018 for felony larceny, breaking into a coin-operated machine, and as a habitual felon. The following day a warrant was issued for Defendant's arrest on the charge of violating N.C. Gen. Stat. § 14-7.1 (attaining habitual felon status).
¶ 7 During the trial, which took place from 7 to 9 June 2021, the State solicited testimony from Pegram, Owens, the General Manager, a responding deputy, and Detective Smith. The State also introduced the security footage of 22 October and photographs from the same footage. At the close of the State's case, Defendant moved to dismiss the charges of larceny and breaking into a coin-operated machine. The trial court denied Defendant's motion. At the close of all evidence, Defendant moved the court once more to dismiss the same charges. The trial court again denied the motion. The jury found Defendant guilty of misdemeanor larceny and felony breaking into a coin-operated machine. Defendant then pleaded guilty to the charge of obtaining habitual felon status due to previous felony convictions.
¶ 8 At Defendant's sentencing, the trial court entered an enhanced sentence of thirty-five to fifty-four months due to his status as a habitual felon. Defendant appeals as of right to this Court from a final judgment of the superior court pursuant to N.C. Gen. Stat. § 7A-27(b)(1).
II. Standard of Review
¶ 9 "This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)). "Under a de novo standard of review, this Court considers the matter anew and freely substitutes its own judgment for that of the trial court." Reese v. Mecklenburg Cnty., 200 N.C.App. 491, 497, 685 S.E.2d 34, 38 (2009).
¶ 10 Likewise, we review alleged violations of constitutional rights de novo. Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001).
III. Discussion
A. Motion to Dismiss
¶ 11 A trial court properly denies a motion to dismiss if, when viewed in the light most favorable to the State, "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 of such offense." State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). In this context, "[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). However, "[i]f the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed." Fritsch, 351 N.C. at 378, 526 S.E.2d at 455 (quoting Barnes, 334 N.C. at 75, 430 S.E.2d at 918). "The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both." Id. at 379, 526 S.E.2d at 455. "When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence." Id. at 379, 526 S.E.2d at 455-56.
1. Larceny
¶ 12 Defendant first argues that the trial court erred in denying his motion to dismiss the charge of larceny. "The essential elements of larceny are: (1) taking the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of the property permanently." State v. Wilson, 154 N.C.App. 686, 690, 573 S.E.2d 193, 196 (2002). In the present case, Defendant specifically challenges the sufficiency of the State's evidence to support the element of "taking the property of another."
¶ 13 Supporting this argument, Defendant claims that the amount of money missing from the machines "was based on 'guesstimation'" and that the money could have been taken by another person prior to or after Defendant's time at the arcade. At trial, neither Pegram nor Owens were able to specify the exact amount alleged to have been missing. Pegram estimated the loss to be around $1,500.00, and Owens estimated a $1,856.75 loss. No evidence was introduced that Defendant later possessed this same money. Further, Pegram and Detective Smith testified to reviewing only the security footage for 22 October. Presumably, someone else could have stolen the money prior to or after 22 October and before Pegram checked the machines on 25 October. As Defendant argues, "[i]f there was no money to take on 22 October 2017, there was no larceny by [Defendant]."
¶ 14 In considering Defendant's argument regarding the lack of evidence of the exact amount taken, we note State v. Davis affirms that an exact value of lost money is not necessary to support a larceny charge. 198 N.C.App. 146, 151-52, 678 S.E.2d 709, 714 (2009). "The State is not required to produce 'direct evidence of . . . value' to support the conclusion that the stolen property was worth over $1,000.00, provided that the jury is not left to 'speculate as to the value' of the item." Id. (quoting State v. Holland, 318 N.C. 602, 610, 350 S.E.2d 56, 61 (1986), overruled on other grounds by State v. Childress, 321 N.C. 226, 232, 362 S.E.2d 263, 267 (1987)).
¶ 15 As to Defendant's argument that others could have stolen the money at another time, "[c]ircumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence." Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (quoting State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988)). The trial court need only "consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances." Id.
¶ 16 Here, security cameras captured Defendant and another man kneeling in front of the machines for an extended period. The machines Defendant knelt in front of were the same machines later discovered to have tampered locks and money missing. Only Pegram and Owens had access to keys for the locks. Detective Smith noted that "the cylinder locks . . . had been removed from the sheet-metal and not attached, but merely placed back in the sheet-metal door to appear normal." At trial, Pegram identified Defendant as the man he had seen return to the arcade a second time, and Detective Smith identified Defendant as the registered owner of the vehicle at the scene.
¶ 17 Viewed in the light most favorable to the State, we hold that the trial court possessed more than sufficient evidence to infer that Defendant committed the act of "taking the property of another" and "for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty." Id. (quoting State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978)). Therefore, the issue was properly submitted to the jury, and the jury, having weighed the evidence, found Defendant guilty of misdemeanor larceny rather than felony larceny.
2. Breaking into a Coin-Operated Machine
¶ 18 Defendant next argues that the trial court erred in denying his motion to dismiss the charge of breaking into a coin-operated machine. A person is guilty of breaking into a coin-operated machine if he "forcibly breaks into, or by the unauthorized use of a key or other instrument opens, any coin- or currency-operated machine with intent to steal any property or moneys therein" N.C. Gen. Stat. § 1456.1 (2021). Similar to the previous argument, Defendant points to the lack of direct evidence showing that Defendant broke into an arcade machine. He argues that the security footage only shows Defendant and another man kneeling in front of machines, their activities from that position were hidden from view, and that someone else could have previously broken into the machines.
¶ 19 This argument fails for the same reasons as his first. A motion to dismiss is properly denied even though an alternative "hypothesis of innocence" exists. Fritsch, 351 N.C. at 379, 526 S.E.2d at 455. The security footage shows the Defendant and another man kneeling in front of the same machines that Pegram identified as having tampered locks and missing money. This evidence, when viewed in the light most favorable to the State, is sufficient to submit the issue to the jury.
B. Habitual Felon Act
¶ 20 Defendant finally argues that the trial court violated his right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment when the trial court sentenced Defendant to an enhanced sentence of thirty-five to fifty-four months, having obtained habitual felon status due to his prior record level. The Eighth Amendment to the U.S. Constitution prohibits the infliction of "cruel and unusual punishments." This Court applies "the 'grossly disproportionate' principle, remembering that '[o]nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.'" State v. Clifton, 158 N.C.App. 88, 94, 580 S.E.2d 40, 45 (2003) (quoting State v. Hensley, 156 N.C.App. 634, 639, 577 S.E.2d 417, 421 (2003)). Defendant alleges that "[s]entences under the Habitual Felon Act are excessive and grossly disproportionate to those under Structured Sentencing alone."
¶ 21 "This Court and the North Carolina Supreme Court have consistently rejected Eighth Amendment challenges to habitual felon sentences." State v. Cummings, 174 N.C.App. 772, 776, 622 S.E.2d 183, 185-86 (2005); see Clifton, 158 N.C.App. at 95, 580 S.E.2d at 45 (upholding a sentence of two consecutive terms of 168 to 211 months active imprisonment under the habitual felon statute). Defendant would have this court reconsider and overturn our firmly established precedent on the matter. However, we do not possess the authority to do so. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Thus, this argument is without merit.
IV. Conclusion
¶ 22 The trial court properly denied Defendant's motion to dismiss the charges of larceny and breaking into a coin-operated machine when sufficient evidence existed to support all elements of the charges against Defendant as viewed in the light most favorable to the State. Additionally, we hold that Defendant's right against cruel and unusual punishment has not been violated.
NO ERROR.
Judges GRIFFIN and JACKSON concur.
Report per Rule 30(e).