{
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  "name": "STATE OF NORTH CAROLINA v. ALONZO ARNOLD SHEPPARD, JR.",
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    "judges": [
      "Judges BRYANT and HUNTER, JR. (Robert N.) concur."
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    "parties": [
      "STATE OF NORTH CAROLINA v. ALONZO ARNOLD SHEPPARD, JR."
    ],
    "opinions": [
      {
        "text": "McCullough, Judge.\nAlonzo Arnold Sheppard, Jr., (\u201cdefendant\u201d) appeals from his convictions for larceny from the person and felony larceny of goods worth more than $1,000 and his classification as an habitual felon. For the following reasons, we vacate defendant\u2019s conviction for felony larceny of goods worth more than $1,000 and remand to the trial court for resentencing.\nI. Background\nDefendant was arrested without a warrant on 11 November 2010 for the theft of a purse from a shopping cart. On 7 March 2011, defendant was indicted by a Forsyth County Grand Jury on charges of financial card theft, larceny from the person, and felony larceny. Defendant was additionally indicted as an habitual felon on a separate bill of indictment.\nDefendant\u2019s case came on for jury trial during the 9 July 2012 Criminal Session of Forsyth County Superior Court, the Honorable William Z. Wood, Jr., presiding. Testimony proffered by the victim tended to show the following: On 1 November 2012, the victim went to Harris Teeter to buy groceries. Upon entering the store, the victim got a shopping cart and placed her purse in the child\u2019s seat, next to the handle bar. After picking up several items on her list, the victim stopped to look at pickles. While looking at ajar of pickles she was holding, the victim noticed out of the comer of her eye someone pass by her shopping cart, which was \u201cright beside [her],\u201d within a \u201chand\u2019s reach away from [her].\u201d The victim immediately glanced down into her shopping cart and noticed her purse was gone. The victim looked up the aisle and saw a man a few feet in front of her walking towards the exit. The man had the victim\u2019s purse in his hand. The victim followed the man. By the time the man reached the exit, he was almost running. The victim yelled for someone to call the police as she reached the exit of the store.\nAt the close of the State\u2019s evidence, defendant moved to dismiss the charges for financial card theft, larceny from the person, and felony larceny. The trial court granted defendant\u2019s motion to dismiss the financial card theft charge.\nOn 11 July 2012, the jury returned verdicts finding defendant guilty of larceny from the person and felony larceny of goods worth more than $1,000. On 12 July 2012, the jury also returned a verdict finding defendant guilty of attaining the status of an habitual felon. The trial court consolidated the offenses for judgment and sentenced defendant to a single term of 110 to 141 months. Defendant was given credit for 610 days served awaiting trial. Defendant gave oral notice of appeal.\nII. Analysis\nDefendant raises the following issues on appeal: whether the trial court erred by (1) denying defendant\u2019s motion to dismiss the charge of larceny from the person; (2) sentencing defendant for both larceny from the person and felony larceny of goods worth more than $1,000 for a single larceny; and (3) sentencing defendant for felony larceny of goods worth more than $1,000 where the indictment alleged a different offense.\nMotion to Dismiss\nDefendant\u2019s first argument on appeal is that the trial court erred in denying his motion to dismiss the larceny from the person charge because there was insufficient evidence to support the charge. \u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). \u201c \u2018Upon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u2019 \u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).\n\u201cThe essential elements of larceny are: (1) taking the property of another; (2) carrying it away; (3) without the owner\u2019s consent; and (4) with the intent to. deprive the owner of the property permanently.\u201d State v. Wilson, 154 N.C. App. 686, 690, 573 S.E.2d 193, 196 (2002). When the property is taken \u201cfrom the person,\u201d the larceny is a Class H felony without regard to the value of the property. N.C. Gen. Stat. \u00a7 14-72(b) (2011). \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 at the time the property is taken.\u201d State v. Barnes, 345 N.C. 146, 149, 478 S.E.2d 188, 190 (1996) (emphasis omitted) (citing State v. Buckom, 328 N.C. 313, 317-18, 401 S.E.2d 362, 365 (1991)). \u201c \u2018[I]t 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 ....\u2019\u201d State v. Wilson, 328 N.C. 313, 691, 573 S.E.2d 193, 196 (2002) (quoting State v. Barnes, 121 N.C. App. 503, 505, 466 S.E.2d 294, 296, aff\u2019d, 345 N.C. 146, 478 S.E.2d 188 (1996)).\nIn this case, defendant contends there was insufficient evidence that the victim\u2019s purse was \u201cunder the protection or control\u201d of the victim at the time it was taken. Specifically, defendant contends the victim was looking at ajar of pickles she was holding and not protecting her purse. We do not agree.\nAlthough the victim was looking at ajar of pickles she was holding, there is substantial evidence that the victim\u2019s purse was in the victim\u2019s immediate presence and under the victim\u2019s protection or control. The evidence at trial tended to show that at the time defendant took the victim\u2019s purse, the purse was in the child\u2019s seat of the victim\u2019s shopping cart, next to the handle bar. The shopping cart and purse were \u201cright beside [the victim]\u201d within a \u201chand\u2019s reach away from [the victim].\u201d As the victim was looking at a jar of pickles, the victim noticed someone walk by out of the comer of her eye and immediately glanced down into her shopping cart and realized her purse was gone. The victim then looked up and saw defendant a few feet in front of her walking away with her purse. The victim then testified that she \u201cpursue[d] [defendant] because it was [her] purse, and he had taken it from [her].\u201d\nDefendant argues that this case is indistinguishable from State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656 (1988), in which we vacated the defendant\u2019s conviction for larceny from the person \u201cbecause the record show[ed] that the larceny involved was not from the person of the complainant as charged in the bill of indictment, but was from an unattended grocery cart.\u201d Id. at 478, 363 S.E.2d at 656. We, however, find the facts in the present case distinguishable. In Lee, the victim placed her shoulder handbag in her shopping cart and was shopping when an accomplice of the defendant asked the victim to help him find unsalted sweet peas. Id. at 479, 363 S.E.2d at 656. The victim then \u201ctook \u2018four or five\u2019 steps away from the cart and looked up and down the shelves and talked with [the accomplice] for \u2018a couple of minutes probably,\u2019 and during that time [the] defendant got the shoulder bag[]... and left the store with it.\u201d Id. The victim in Lee did not notice her purse had been taken until she returned to her shopping cart. Id. Although similar, the facts in the present case are distinguishable. The victim in this case did not walk away from her purse and shopping cart for a couple of minutes. Instead, the victim remained next to her shopping cart and purse, within a hand\u2019s reach, while looking at ajar of pickles. Furthermore, the victim immediately realized the larceny at the moment it occurred and pursued defendant as he fled the store.\nWhere larceny from the person does not require that the property taken be attached to the victim, but merely taken from the victim\u2019s presence while under the victim\u2019s protection or control, we find the evidence in this case, where the victim\u2019s purse was within reach of the victim and the victim immediately realized the larceny as it occurred, sufficient to support the charge of larceny from the person when viewed in the fight most favorable to the State. See State v. Boston, 165 N.C. App. 890, 893, 600 S.E.2d 863, 865 (2004) (commenting that distance is relevant to \u201cimmediate presence\u201d and awareness of the victim of the theft at the time of the taking is relevant to \u201cprotection and control\u201d). Therefore, the trial court did not err in denying defendant\u2019s motion to dismiss.\nJudgment and Sentencing\nDefendant\u2019s second argument on appeal is that the trial court erred in sentencing defendant for both larceny from the person and larceny of goods worth more than $1,000 based on a single larceny. We agree.\nAfter the jury returned verdicts finding defendant guilty of larceny from the person, larceny of goods worth more than $1,000, and attaining the status of an habitual felon, the trial court consolidated the. three offenses for judgment and sentenced defendant to a single term of 110 to 141 months. We hold the trial court erred in entering judgment and sentencing defendant for both larceny from the person and larceny of goods worth more than $1,000 based on a single larceny. \u201c[T]he purpose of [N.C. Gen. Stat. \u00a7] 14-72 is to establish levels of punishment for larceny based on the value of the goods stolen, the nature of the goods stolen or the method by which stolen, not to create new offenses.\u201d State v. Boykin, 78 N.C. App. 572, 576, 337 S.E.2d 678, 681 (1985). Thus, larceny from the person and larceny of goods worth more than $1,000 are not separate offenses, but alternative ways to establish that a larceny is a Class H felony. See N.C. Gen. Stat. \u00a7 14-72(a) & (b).\nWhile it is proper to indict defendant on alternative theories of felony larceny and allow the jury to determine defendant\u2019s guilt as to each theory, where there is only one larceny, judgment may only be entered for one larceny. In this case, the trial court acknowledged that there was only one larceny, and therefore issued only one sentence. Nevertheless, it entered judgment for both larceny from the person and larceny of goods worth more than $1,000. As described above, the trial court erred.\nAlthough the trial court erred in entering judgment on both larceny convictions, we note that either larceny conviction standing alone is sufficient to support defendant\u2019s status as an habitual felon. Furthermore, the sentence imposed by the trial court, 110 to 141 months, is within the presumptive range for a single Class H felony larceny considering defendant\u2019s status as an habitual felon elevates the Class H felony to a Class C for punishment and defendant is a prior record level IV. See N.C. Gen. Stat. \u00a7 15A-1340.17 (2011). Thus, the trial court\u2019s error was that it entered judgment and sentenced defendant for both larceny convictions, not that it imposed an improper sentence.\nDefective Indictment\nDefendant\u2019s third argument on appeal is that the trial court lacked jurisdiction to sentence defendant for larceny of goods worth more than $1,000 because the indictment provided that \u201cdefendant. . . unlawfully, willfully and feloniously did steal, take, and carry away U.S. CURRENCY, the personal property of [the victim], such property having a value of $1,000.00.\u201d For purposes of appeal, we acknowledge the inconsistency, accept defendant\u2019s argument, and vacate defendant\u2019s conviction for felony larceny of goods worth more than $1,000.\nAs discussed above, defendant\u2019s conviction for larceny from the person was sufficient to support the sentence issued. Nevertheless, because we vacate defendant\u2019s conviction for felony larceny of goods worth more than $1,000, we must remand to the trial court for resentencing.\nIII. Conclusion\nFor the reasons discussed above, we affirm the trial court\u2019s denial of defendant\u2019s motion to dismiss the larceny from the person charge, vacate defendant\u2019s conviction for felony larceny of goods worth more than $1,000, and remand to the trial court for resentencing.\nAffirmed in part; vacated and remanded in part.\nJudges BRYANT and HUNTER, JR. (Robert N.) concur.\n. We note that the sentence issued on remand is unlikely to differ from the sentence previously issued. As discussed above, the term of 110 to 141 months issued for the consolidated offenses is within the presumptive range for defendant\u2019s conviction for larceny from the person considering defendant\u2019s prior record level and status as an habitual felon.",
        "type": "majority",
        "author": "McCullough, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch, for the State.",
      "Kevin R Bradley for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ALONZO ARNOLD SHEPPARD, JR.\nNo. COA12-1435\nFiled 2 July 2013\n1. Larceny \u2014 from the person \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of larceny from the person. The victim\u2019s purse was within reach of the victim and the victim immediately realized the larceny as it occurred.\n2. Sentencing \u2014 alternative felonies \u2014 larceny from the person\u2014 larceny of goods worth more than $1,000\nThe trial court erred by sentencing defendant for both larceny from the person and larceny of goods worth more than $1,000 based on a single larceny since they axe alternative ways to establish a Class H felony and judgment may only be entered for one larceny. However, either larceny conviction standing alone was sufficient to support defendant\u2019s status as an habitual felon. Further, the sentence imposed by the trial court was within the presumptive range for a single Class H felony larceny.\n3. Indictment and Information \u2014 fatal variance \u2014 felony larceny of goods \u2014 value of goods\nDefendant\u2019s conviction for felony larceny of goods worth more than $1,000 was vacated and remanded to the trial court for resentencing because the indictment stated the property was worth $1,000.\nAppeal by defendant from judgment entered 12 July 2012 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 13 March 2013.\nAttorney General Roy Cooper, by Assistant Attorney General Barry H. Bloch, for the State.\nKevin R Bradley for defendant appellant."
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