{ "id": 9000760, "name": "STATE OF NORTH CAROLINA v. GEORGE CLEVELAND BOSTON", "name_abbreviation": "State v. Boston", "decision_date": "2004-08-17", "docket_number": "No. COA03-932", "first_page": "890", "last_page": "894", "citations": [ { "type": "official", "cite": "165 N.C. App. 890" } ], "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": "456 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "297", "parenthetical": "holding that the Court will not presume from a silent record that defense counsel argued the defendant's guilt without the defendant's consent and indicating that the appropriate avenue for relief, if any, is through the filing of a motion for appropriate relief" } ], "opinion_index": 0 }, { "cite": "340 N.C. 187", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790178 ], "year": 1995, "pin_cites": [ { "page": "197", "parenthetical": "holding that the Court will not presume from a silent record that defense counsel argued the defendant's guilt without the defendant's consent and indicating that the appropriate avenue for relief, if any, is through the filing of a motion for appropriate relief" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0187-01" ] }, { "cite": "401 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "pin_cites": [ { "page": "365" }, { "page": "365" }, { "page": "365" } ], "opinion_index": 0 }, { "cite": "328 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544115 ], "weight": 3, "pin_cites": [ { "page": "317-18" }, { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0313-01" ] }, { "cite": "478 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1996, "pin_cites": [ { "page": "190", "parenthetical": "citing State v. Buckom, 328 N.C. 313, 317-18, 401 S.E.2d 362, 365" }, { "page": "191" }, { "page": "189" }, { "page": "190", "parenthetical": "emphasis added" }, { "page": "190" } ], "opinion_index": 0 }, { "cite": "345 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53904 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "149", "parenthetical": "citing State v. Buckom, 328 N.C. 313, 317-18, 401 S.E.2d 362, 365" }, { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0146-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "13-14" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "68 L. Ed. 2d 349", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1981, "opinion_index": 0 }, { "cite": "451 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6297860, 6298121, 6296317, 6297131, 6296589, 6295406, 6296017, 6296882, 6297366, 6295705, 6297629 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/451/0970-10", "/us/451/0970-11", "/us/451/0970-04", "/us/451/0970-07", "/us/451/0970-05", "/us/451/0970-01", "/us/451/0970-03", "/us/451/0970-06", "/us/451/0970-08", "/us/451/0970-02", "/us/451/0970-09" ] }, { "cite": "273 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "301 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569816 ], "year": 1981, "pin_cites": [ { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0591-01" ] }, { "cite": "363 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "657" }, { "page": "656" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358476 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0478-01" ] } ], "analysis": { "cardinality": 514, "char_count": 10458, "ocr_confidence": 0.728, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.4128437603891192 }, "sha256": "aea288501aa7b4b7cae4e2650f4b2126dbf6e7bfd2804a70a0df052b29702733", "simhash": "1:4338701a5721a55a", "word_count": 1759 }, "last_updated": "2023-07-14T17:46:04.930387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE CLEVELAND BOSTON" ], "opinions": [ { "text": "THORNBURG, Judge.\nOn 11 February 2003, a jury convicted George Cleveland Boston (\u201cdefendant\u201d) of common law robbery and being an habitual felon. At trial, the evidence presented by the State and by defendant differed significantly.\nThe State\u2019s evidence included the following: William Skinner (\u201cMr. Skinner\u201d) testified that a former co-worker of his brought defendant to Mr. Skinner\u2019s house. Defendant or the co-worker asked if Mr. Skinner would be interested in buying some guns. Mr. Skinner said yes. Defendant indicated that he had the guns out in the car and left the house. The following day defendant returned to Mr. Skinner\u2019s house. Mr. Skinner agreed to buy guns from defendant and gave defendant a check for fifty dollars. Defendant left and did not return with the guns. The next morning Mr. Skinner stopped payment on the check.\nThat night defendant returned for the third time to Mr. Skinner\u2019s house. Defendant knocked on the back door and Mr. Skinner let him in the house. Mr. Skinner declined to purchase two more guns from defendant. During this conversation Mr. Skinner was sitting in the den. At some point defendant asked for a blank check, which Mr. Skinner declined to give. Defendant then wanted to put his cigarette out. When Mr. Skinner turned to give defendant an ash tray, defendant hit Mr. Skinner on the head, knocking him to the ground. Defendant jumped on top of Mr. Skinner and started trying to get Mr. Skinner\u2019s wallet out of his pocket. Defendant succeeded in taking Mr. Skinner\u2019s wallet, which contained papers including personal information and one hundred and twenty dollars ($120.00). Defendant then left the house. Mr. Skinner called the police and told the officer what had happened.\nIn addition to Mr. Skinner\u2019s testimony, the State presented the testimony of the police officer who responded to Mr. Skinner\u2019s call. The officer\u2019s description of Mr. Skinner\u2019s report to the officer concerning the theft of the wallet was essentially the same as Mr. Skinner\u2019s testimony at trial. The officer also testified about Mr. Skinner\u2019s appearance the night of the incident. The officer said that Mr. Skinner was bleeding, he had scrapes on his head, and he was shaking. The officer also testified that Mr. Skinner\u2019s hair was all in a mess, his shirt was untucked, and his belt was undone.\nDefendant testified to the events that led to his conviction as follows: Defendant sold one gun to Mr. Skinner. Mr. Skinner paid with a two-party check, which defendant cashed. The next day defendant sold a second gun to Mr. Skinner, but this time was unable to cash Mr. Skinner\u2019s check. Defendant returned to Mr. Skinner\u2019s house for the third time and asked Mr. Skinner about the check. Mr. Skinner said that he was not going to give defendant any more money. During this conversation, defendant noticed a wallet on a little table near where defendant was standing. Defendant then took the wallet and walked Out the door. Defendant testified that Mr. Skinner did not see defendant take the wallet. Defendant also testified that he did not \u201cput his hands on\u201d Mr. Skinner or \u201cphysically abuse\u201d Mr. Skinner.\nThe trial judge initially indicated to counsel that he planned to instruct the jury on common law robbery, larceny from the person, and misdemeanor larceny. The attorney for the State requested that the judge not instruct on misdemeanor larceny. Over the objection of defense counsel, the trial court followed the State\u2019s request and instructed the jury that the possible verdicts were common law robbery, larceny from the person, or not guilty. After the jury returned verdicts of guilty of common law robbery and being an habitual felon, the trial court sentenced defendant to a minimum of one hundred forty-four (144) months to a maximum of one hundred eighty-two (182) months in the custody of the North Carolina Department of Correction. Defendant appeals.\nWe have reviewed the assignments of error brought forward by defendant, and we find reversible error in the trial court\u2019s refusal to instruct the jury on the crime of misdemeanor larceny.\nI\nDefendant contends that the trial court erred by refusing to instruct the jury on the charge of misdemeanor larceny, a lesser included offense of larceny from the person. State v. Lee, 88 N.C. App. 478, 479, 363 S.E.2d 656, 657 (1988). Where the evidence supports the defendant\u2019s guilt of a lesser included offense, the defendant is entitled to have the question submitted to the jury. State v. Summitt, 301 N.C. 591, 596, 273 S.E.2d 425, 427 (1981), cert. denied, 451 U.S. 970, 68 L. Ed. 2d 349 (1981). However, where the evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the crime charged, the trial court is not required to submit a lesser included offense to the jury. State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d 706, 714 (1972).\nDefendant argues that there was conflicting evidence relating to the \u201cfrom the person\u201d element of the larceny from the person charge. \u201c[F]or larceny to be \u2018from the person,\u2019 the property stolen must be in the immediate presence of and under the protection or control of the victim_\u201d State v. Barnes, 345 N.C. 146, 149, 478 S.E.2d 188, 190 (1996) (citing State v. Buckom, 328 N.C. 313, 317-18, 401 S.E.2d 362, 365). In Barnes the North Carolina Supreme Court held that the evidence did not support a conviction for larceny from the person where the defendant stole a bank bag from an unattended bank kiosk. Id. at 150-51, 478 S.E.2d at 191. Further evidence before the Barnes court indicated that the teller of the kiosk was twenty-five to thirty feet away from the kiosk, at another shop. Id. at 147, 478 S.E.2d at 189. In State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656 (1988), this Court held that the evidence did not support a larceny from the person conviction where the defendant stole a handbag from a shopping cart while the owner was four or five steps away, looking up and down the shelves and talking to another person. Id. at 479, 363 S.E.2d at 656.\nIn the instant c\u00e1se, defendant testified that he and Mr. Skinner were in the same room of Mr. Skinner\u2019s house, that he and Mr. Skinner were talking, and that when Mr. Skinner turned away, defendant took a wallet from a table in the same room. Defendant testified further that Mr. Skinner did not see defendant take the wallet. Under Barnes the property stolen must be \u201cin the immediate presence and under the protection or control of the victim at the time the property is taken.\u201d Id. at 149, 478 S.E.2d at 190 (emphasis added). By testifying that Mr. Skinner did not see defendant take the wallet and that Mr. Skinner was turned away from the wallet when the wallet was taken, we hold that defendant presented conflicting evidence as to whether the wallet was under the protection or control of Mr. Skinner at the time it was taken.\nThis holding is consistent with the North Carolina Supreme Court\u2019s decision in State v. Buckom, 328 N.C. 313, 401 S.E.2d 362 (1991). In Buckom, the Court held that the \u201cfrom the person\u201d element of larceny from the person was supported by evidence that the defendant took money from the open drawer of a cash register at the same time the cashier was reaching in the drawer to make change. Id. at 318, 401 S.E.2d at 365. What distinguishes Buckom from Lee and Barnes is not only the distance involved, which is relevant to immediate presence, but also the awareness of the victim of the theft at the time of the taking, which is relevant to protection and control. This distinction is further supported by dicta in Buckom and Barnes. Both cases cited the example of diamonds placed on the counter and \u201cunder the jeweler\u2019s eye\u201d as remaining under the protection of the jeweler: Buckom, 328 N.C. at 318, 401 S.E.2d at 365; Barnes, 345 N.C. at 148, 478 S.E.2d at 190.\nIn the instant case, defendant presented evidence that the wallet was not under the eye of, or the protection or control of, Mr. Skinner at the time the wallet was taken. Thus, defendant presented conflicting evidence on the \u201cfrom the person\u201d element of larceny from the person, and the trial court erred by refusing to instruct the jury on the lesser included offense of misdemeanor larceny. Defendant is, therefore, entitled to a new trial in accordance with this ruling.\nII\nAs our ruling on defendant\u2019s first assignment of error is dispositive, we address only one of defendant\u2019s remaining arguments. Defendant contends that the trial court erred by failing to determine whether defendant consented to admissions made by defense counsel during opening argument regarding the theft of the wallet. Because the record is silent as to defendant\u2019s consent to his attorney\u2019s admissions during opening argument, we do not pass on this assignment of error. The appropriate remedy, if any, is for defendant to file a motion for appropriate relief in superior court based upon ineffective assistance of counsel pursuant to N.C. Gen. Stat. \u00a7 15A-1415(b)(3) (2003); see State v. House, 340 N.C. 187, 197, 456 S.E.2d 292, 297 (1995) (holding that the Court will not presume from a silent record that defense counsel argued the defendant\u2019s guilt without the defendant\u2019s consent and indicating that the appropriate avenue for relief, if any, is through the filing of a motion for appropriate relief). We note that our ruling herein is without prejudice to defendant\u2019s right to file such motion.\nNew trial.\nChief Judge MARTIN and Judge HUNTER concur.", "type": "majority", "author": "THORNBURG, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State.", "Russell J. Hollers III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE CLEVELAND BOSTON\nNo. COA03-932\n(Filed 17 August 2004)\n1. Larceny\u2014 instructions \u2014 lesser included offense\nThe failure to instruct on the lesser included offense of misdemeanor larceny was error where there was conflicting evidence on the \u201cfrom the person\u201d element of larceny from the person.\n2. Criminal Law\u2014 admissions in argument \u2014 ineffective assistance of counsel \u2014 remedy\u2014motion for appropriate relief\nThe appropriate remedy for defense counsel\u2019s alleged failure to obtain defendant\u2019s consent to make admissions during opening arguments was a motion for appropriate relief in superior court. N.C.G.S. \u00a7 15A-1415(b)(3).\nAppeal by defendant from judgment entered 11 February 2003 by Judge W. Russell Duke, Jr. in Chowan County Superior Court. Heard in the Court of Appeals 26 April 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Jill F. Cramer, for the State.\nRussell J. Hollers III, for defendant-appellant." }, "file_name": "0890-01", "first_page_order": 922, "last_page_order": 926 }