{ "id": 11918313, "name": "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY BARNES", "name_abbreviation": "State v. Barnes", "decision_date": "1996-02-06", "docket_number": "No. COA95-739", "first_page": "503", "last_page": "506", "citations": [ { "type": "official", "cite": "121 N.C. App. 503" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "74 ALR3d 271", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "249 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "slightest taking and movement of property with the intent to permanently deprive the owner of the property is sufficient to constitute the crime of larceny" } ], "opinion_index": 0 }, { "cite": "296 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564777 ], "year": 1978, "pin_cites": [ { "parenthetical": "slightest taking and movement of property with the intent to permanently deprive the owner of the property is sufficient to constitute the crime of larceny" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0101-01" ] }, { "cite": "401 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "365" } ], "opinion_index": 0 }, { "cite": "328 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544115 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0313-01" ] }, { "cite": "363 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "657" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358476 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/88/0478-01" ] }, { "cite": "53 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630160 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0387-01" ] }, { "cite": "161 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 721", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576142 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0721-01" ] }, { "cite": "238 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566402, 8566469, 8566501, 8566439, 8566365 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0592-02", "/nc/293/0592-04", "/nc/293/0592-05", "/nc/293/0592-03", "/nc/293/0592-01" ] }, { "cite": "236 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552258 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0705-01" ] }, { "cite": "276 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643514 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0458-01" ] }, { "cite": "289 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570055 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0391-01" ] } ], "analysis": { "cardinality": 452, "char_count": 7601, "ocr_confidence": 0.75, "pagerank": { "raw": 2.6127600377706985e-07, "percentile": 0.8205962973130866 }, "sha256": "6fd755dd9def9b56de0942969876aa36f4118ad248478ad747f59097388a0d70", "simhash": "1:2532445f060f2639", "word_count": 1290 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Eagles and Smith concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY BARNES" ], "opinions": [ { "text": "WYNN, Judge.\nThe State\u2019s charge of common law robbery against defendant resulted in a finding of guilt on the lesser offense of larceny from the person. He was sentenced upon his plea of guilty to being a habitual felon.\nThe State\u2019s evidence shows that on 11 July 1994, James Morana worked alone at the House of Eyes, a kiosk located in Cotton Mill Square Mall in Greensboro. At approximately 8:40 p.m., he left the kiosk unattended as he talked to a saleswoman in a neighboring shop approximately 25 to 30 feet away. Upon being told by another salesperson that someone was in his kiosk, Mr. Morana returned to find defendant rising from behind the counter near the cash register. Mr. Morana stepped past defendant, looked under the counter, and saw that a bank bag containing approximately $50 in cash was missing. About that time, defendant left the kiosk. Mr. Morana chased defendant, cornered him against a wall, and asked defendant to return the bag. As defendant pushed his way past him, Mr. Morana saw a bulge in defendant\u2019s shirt. Mr. Morana grabbed defendant\u2019s shirt, exposing the bank bag. Defendant fled. He subsequently turned himself in to the police.\nDefendant did not present any evidence. Following his conviction of the crime of larceny from the person, he appealed to this Court.\nOn appeal, defendant contends that the charge of larceny from the person was not proven because the evidence fails to establish that the bank bag was taken from Mr. Morana\u2019s person. We agree.\nOur Courts have routinely upheld convictions of larceny from the person when the stolen property was, or had been, attached to the victim\u2019s person at the time of, or immediately prior to, the taking, such as when a purse, wallet, money or other item was dislodged and taken from the victim\u2019s hand, arm, or pocket. See, e.g., State v. Young, 305 N.C. 391, 289 S.E.2d 374 (1982); State v. Washington, 51 N.C. App. 458, 276 S.E.2d 470 (1981); State v. Simmons, 33 N.C. App. 705, 236 S.E.2d 188, cert. denied, 293 N.C. 592, 238 S.E.2d 151 (1977); State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968); State v. Skipper, 230 N.C. 387, 53 S.E.2d 169 (1949). If, however, the victim merely stood near the property at the time of the taking, then the criminal commits misdemeanor or felonious larceny, depending upon the value of the goods stolen. For example, in State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656 (1988), the victim stood four to five steps away from her grocery cart when the defendant stole the victim\u2019s purse from her cart. Finding that \u201cthe deficiency in the State\u2019s evidence is so clear,\u201d this Court ex mero mo tu vacated the defendant\u2019s conviction for larceny from the person and remanded the case for the entry of judgment upon a conviction of misdemeanor larceny. Id. at 479-80, 363 S.E.2d at 657.\nIn 1991, our Supreme Court broadened the definition of \u201cfrom the person\u201d when it upheld a conviction of larceny from the person based on evidence that the defendant stole from a cash register as the cashier opened the register to make change, even though the cash had not been attached to, or dislodged from, the cashier\u2019s person. State v. Buckom, 328 N.C. 313, 401 S.E.2d 362 (1991). Noting that the term \u201cfrom the person\u201d had never been defined in the General Statutes, the Court looked to the common law definition of the crime of larceny from the person and held that it is not necessary that the stolen property be attached to the victim\u2019s person in order for the theft to constitute larceny from the person as long as the property was within the victim\u2019s protection and presence at the time of the taking.\nRelying upon Buckom, the State argues that although Mr. Morana was away from the store, \u201che was still in a position to watch that store, therefore the larceny was from the person.\u201d It also argues defendant was in the presence of Mr. Morana before he left the store with the bag. We disagree.\nAs the Supreme Court observed in Buekom, the crime of larceny from the person developed as a middle ground between the forcible taking of property necessary to constitute robbery and the secret or private stealing commonly associated with simple larceny. The Court gave as an example of a taking from a person\u2019s presence and protection sufficient to constitute larceny from the person the situation in which a thief steals jewelry placed on the counter by the jeweler for inspection by the thief \u201cunder the jeweler\u2019s eye.\u201d Id. at 318, 401 S.E.2d at 365.\nThe situation in the present case is not analogous. The taking of the bank bag in this case is more akin to the secret or private stealing commonly associated with simple larceny. The kiosk was unattended at the time defendant entered. By the time Mr. Morana returned to the kiosk, defendant had hidden the bank bag under his shirt, and defendant left the kiosk before Mr. Morana realized that the bank bag was missing. By that point the crime of larceny had been completed. See State v. Carswell, 296 N.C. 101, 249 S.E.2d 427 (1978) (slightest taking and movement of property with the intent to permanently deprive the owner of the property is sufficient to constitute the crime of larceny). Because the crime had been completed while Mr. Morana was absent and while the bag was left unprotected, we conclude that the larceny of the bank bag was not from Mr. Morana\u2019s person.\nFor the foregoing reasons, we hold that the trial court erred by denying defendant\u2019s motion to dismiss the charge of larceny from the person. Nevertheless, the elements of the felony of larceny from the person are the same as misdemeanor larceny except that the felony requires that the property be taken from the person, presence or protection of the victim. See State v. Buckom, 328 N.C. 313, 401 S.E.2d 362. Having determined, as a matter of law that the aforementioned element was unsupported by the evidence, it follows that the jury found all the elements of misdemeanor larceny to exist from the evidence beyond a reasonable doubt. Because the evidence and the jury\u2019s verdict does show, and defendant concedes, that defendant committed the offense of misdemeanor larceny, we vacate the felony judgment and remand the matter for entry of judgment upon a conviction of misdemeanor larceny. There being no felony conviction to which the habitual felon indictment attaches, that indictment is dismissed and the conviction vacated.\nVacated and remanded.\nJudges Eagles and Smith concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Mabel Y. Bullock, for the State.", "Robert H. Edmunds, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY BARNES\nNo. COA95-739\n(Filed 6 February 1996)\nLarceny \u00a7 147 (NCI4th)\u2014 larceny from the person \u2014 insufficiency of evidence \u2014 sufficiency of evidence of misdemeanor larceny\nThe evidence was insufficient to support a conviction of larceny from the person where the evidence tended to show that defendant entered an unattended kiosk in a mall, concealed a bank bag containing approximately $50 under his shirt, and left the kiosk before the sales person who manned the kiosk realized that the bank bag was missing; however, the evidence and the jury\u2019s verdict did show, and defendant conceded, that defendant committed the offense of misdemeanor larceny, and the case is remanded for entry of judgment upon that conviction.\nAm Jur 2d, Larceny \u00a7\u00a7 4, 54, 55, 144.\nWhat constitutes larceny \u201cfrom a person\u201d. 74 ALR3d 271.\nAppeal by defendant from judgment entered 13 January 1995 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 2 January 1996.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Mabel Y. Bullock, for the State.\nRobert H. Edmunds, Jr., for defendant-appellant." }, "file_name": "0503-01", "first_page_order": 537, "last_page_order": 540 }