in the Court of Appeals 8 March 2017.
by defendant from judgment entered 8 June 2016 by Judge James
M. Webb in Moore County, No. 15CRS51606 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Thomas H. Moore, for the State.
L. Hayes for defendant-appellant.
Wayne Glidewell, Jr. ("Defendant") appeals from his
conviction for habitual misdemeanor larceny. Defendant gave
defective notice of appeal, but we grant his petition for
writ of certiorari and reach the merits of his arguments.
Defendant asserts that the trial court erred in giving an
acting in concert jury instruction. First, Defendant argues
that he was prejudiced by this instruction because it created
a fatal variance between his indictment and the evidence
supporting his conviction. Second, he argues that the State
introduced insufficient Opinion of the Court evidence to
warrant such an instruction. We review each argument in turn
and find neither compel reversal of his conviction.
and Procedural History
evidence introduced by the State at trial tended to show that
on June 11, 2015, Defendant and Darian Parks
("Parks") walked into the Southern Pines Belk
Department Store ("Store") together. Both men
removed several men's shirts from their display in the
Store's Nautica section and concealed the shirts
underneath their clothing. The men then exited the Store
Defendant and Parks left the store, Brian Hale
("Hale"), the Store's Loss Prevention Officer,
followed the two men into the parking lot and observed them
leave in a silver Chevrolet Malibu. After Defendant and Parks
drove away, Hale returned to the Store and found a price tag
for $34.50 on the floor, which he deduced had been removed
from one of the shirts. Hale and two of the Store's loss
prevention associates identified the men who stole the shirts
on the Store's surveillance camera video as Defendant and
Parks. Hale also provided the Southern Pines Police with the
make, model, and license plate number of the vehicle in which
the men fled.
January 4, 2016, a Moore County grand jury indicted Defendant
for habitual misdemeanor larceny under N.C. Gen. Stat. §
14-72(b)(6). Parks, as co-defendant, pleaded guilty to the
charges brought against him for this same set of operative
facts prior to Defendant's trial.
8, 2016, Defendant was tried before a jury in Moore County
Superior Court. Before Defendant's jury was impaneled,
Defendant knowingly and voluntarily admitted to four prior
misdemeanor larcenies used by the State to elevate the
present charge from misdemeanor larceny to a Class H felony
of habitual misdemeanor larceny. At the close of the
State's case-in-chief, Defendant presented no evidence
and chose not to testify. After jury deliberations, Defendant
was found guilty, sentenced to an active prison term of
eleven to twenty-three months, and ordered to pay $241.50 in
restitution. The record indicates that Defendant gave no oral
or written notice of appeal at trial.
for Writ of Certiorari
day following trial, June 9, 2016, Defendant's trial
counsel gave oral notice of appeal. The trial court made
appellate entries and appointed appellate counsel for
Defendant. However, for notice of appeal in a criminal action
to be effective, it must either be given orally at trial or
be filed with the clerk of superior court and served on
adverse parties within fourteen days after the court's
entry of judgment. N.C. R. App. P. 4(a)(1) and (2) (2016).
Because trial counsel's notice of appeal was neither
given orally "at trial" nor filed with the clerk,
it was defective. For this reason, on November 22, 2016,
Defendant filed a petition for writ of certiorari asking this
Court to consider the merits of his appeal.
response to Defendant's petition, the State conceded it
was aware of Defendant's intent to appeal and
acknowledged review of Defendant's conviction was proper.
Accordingly, we grant Defendant's petition for writ of