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State v. Glidewell

Court of Appeals of North Carolina

August 15, 2017

STATE OF NORTH CAROLINA,
v.
LARRY WAYNE GLIDEWELL, JR., Defendant.

          Heard in the Court of Appeals 8 March 2017.

         Appeal 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.

          Mark L. Hayes for defendant-appellant.

          BERGER, Judge.

         Larry 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.

         Factual and Procedural History

         The 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 without paying.

         As 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.

         On 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.

         On June 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.

         Petition for Writ of Certiorari

         On the 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.

         In 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 certiorari ...


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