in the Court of Appeals 5 April 2017.
by defendant from judgment entered 13 May 2016 by Judge
Daniel A. Kuehnert in Lincoln County Superior Court Nos. 15
CRS 51923, 1256.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Thomas J. Campbell, for the State.
William D. Spence for defendant-appellant.
William Cannon ("Defendant") appeals from his
judgment for aiding and abetting larceny and attaining
habitual felon status. On appeal, he contends: (1) that the
trial court erred in denying his motion to dismiss the charge
of aiding and abetting larceny; and (2) that the trial court
erred in sentencing Defendant as a habitual felon when the
issue was not submitted to the jury as required by N.C. G.S.
§ 14-7.5 (2015). After careful review, we hold that the
trial court did not err in denying Defendant's motion to
dismiss. However, we agree with Defendant that the trial
court erred in sentencing Defendant as a habitual felon when
the issue was not submitted to the jury. We affirm
Defendant's conviction for aiding and abetting larceny,
vacate the habitual felon enhancement, and remand for a new
May 2015, Shawn Sanbower ("Sanbower"), a loss
prevention officer at a Wal-Mart store in Denver, North
Carolina, observed Amanda Eversole ("Eversole")
remove several items of clothing from store shelves and
attempt to leave the store without paying. Sanbower
apprehended Eversole, and then reviewed surveillance tapes.
He discovered that Eversole had been in the store with
William Black ("Black"), who had taken a number of
items from store shelves without paying. Law enforcement was
contacted. Sanbower went out to the store parking lot and saw
Black, along with several law enforcement officers. Black was
in the rear passenger seat of a green SUV, which was filled
with goods from the Wal-Mart with a total value of $1,
177.49. At the vehicle, Sanbower also observed Defendant
speaking with the officers.
Ken Davis ("Deputy Davis"), from the Lincoln County
Sheriff's Office, was one of the officers present, having
arrived in response to the store's call. Deputy Davis
testified that he had approached Black's vehicle and
found it was full of stolen goods. Defendant then approached
the vehicle and asked Davis and other officers what they were
doing. Deputy Davis asked Defendant how he knew Black, and
Defendant replied that he had only just met "them,
" and that he was paid $50.00 to drive "him"
to this Wal-Mart in Denver from Gastonia. Defendant further
confirmed that he owned the vehicle.
November 2015, the Lincoln County Grand Jury indicted
Defendant on the charges of felony larceny, conspiracy to
commit felony larceny, and aiding and abetting larceny.
Defendant was also indicted for attaining habitual felon
status. This matter went to trial on 12 May 2016. At the
close of the State's evidence, Defendant moved to dismiss
all of the charges. This motion was denied. Defendant
declined to put on evidence. During the jury charge
conference, the trial court dismissed the felony larceny
charge on its own motion.
jury found Defendant not guilty of conspiracy to commit
larceny, but guilty of aiding and abetting larceny. The State
then amended the habitual felon indictment without objection,
and submitted sentencing worksheets by stipulation. Defendant
"stipulated" to habitual felon status. The trial
court sentenced Defendant to an active minimum sentence of 80
months to a maximum of 108 months imprisonment. The trial
court waived court costs, and awarded attorney's fees as
a civil judgment.
Motion to Dismiss
contends that the trial court erred in denying his motion to
dismiss the charge of aiding and abetting larceny. We
Standard of Review
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) (emphasis omitted).
"Upon defendant's 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's being
the perpetrator of such offense. If so, the motion ...