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State v. Cannon

Court of Appeals of North Carolina

August 1, 2017

STATE OF NORTH CAROLINA
v.
GARY WILLIAM CANNON, Defendant.

          Heard in the Court of Appeals 5 April 2017.

         Appeal 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.

          MURPHY, Judge.

         Gary 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 sentencing hearing.

         I. Background

         On 14 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.

         Deputy 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.

         On 9 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.

         The 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.

         Defendant appeals.

         II. Motion to Dismiss

         Defendant contends that the trial court erred in denying his motion to dismiss the charge of aiding and abetting larceny. We disagree.

         A. Standard of Review

         "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) (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 ...


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