in the Court of Appeals 25 April 2019.
by Defendant from judgment dated 26 April 2018 by Judge Mark
E. Powell in Rutherford County Superior Court Nos.
Attorney General Joshua H. Stein, by Assistant Attorney
General Erika N. Jones, for the State.
Michael Spivey for Defendant-Appellant.
habitual larceny, which elevates the crime of misdemeanor
larceny if the defendant has been convicted of four or more
prior larcenies, does not include as an essential element the
requirement that the defendant was represented by counsel or
waived counsel in obtaining those prior larceny convictions.
Edgerton ("Defendant") appeals following a jury
verdict finding him guilty of habitual larceny and attaining
the status of an habitual felon. Defendant argues that (1)
the indictment was facially invalid and insufficient to
charge him with habitual larceny; (2) he was not properly
arraigned for the charge of habitual larceny; (3) his
attorney was not authorized to stipulate to his prior larceny
convictions; (4) the State did not provide sufficient
evidence to prove the charge of habitual larceny; and (5) the
use of an Automated Criminal/Infraction System printout to
prove a prior felony conviction violated the best evidence
rule. After careful review of the record and applicable law,
we hold that Defendant has failed to demonstrate error.
Factual and Procedural History
record and evidence introduced at trial reveal the following:
September 2016, employees at Ingles Markets, Incorporated
("Ingles") witnessed Defendant "sticking . . .
meats inside of a bag he brought in the store for
himself." Defendant then left the store without paying
for the items. One employee followed Defendant outside and
planned to identify the license plate of Defendant's
vehicle, but Defendant made eye contact with him and the
employee returned inside the store.
reentered the store and confronted the employees at the
Ingles deli counter. Defendant became "pretty
rowdy," asked the employees if there was a problem, and
said if there was he would "be back and take care of
that problem." Both employees felt threatened by
Defendant's behavior and told Defendant to take the meat.
Once Defendant had left the store, they notified their
management and called the police.
Andy Greenway ("Sgt. Greenway") of the Lake Lure
Police Department was dispatched to Ingles to investigate the
call. He viewed surveillance footage of the incident and
recognized Defendant. Sgt. Greenway and another officer found
Defendant in front of his house with his father and sister
and noticed two empty Ingles bags in the driveway. He then
arrested Defendant, who asked, "Can I not just have my
dad go back and pay for the pork chops?" Sgt. Greenway
told Defendant that it was too late for that. Defendant told
Sgt. Greenway that he took the pork chops because he had no
money and wanted something nice to eat on his birthday.
was indicted for habitual larceny and as an habitual felon.
The habitual larceny charge came on for jury trial during the
23 April 2018 session of Rutherford County Superior Court. At
the close of the State's evidence, after conferring with
Defendant, Defendant's counsel informed the court
"for the record, we would stipulate to the sufficient
prior larcenies to arrive at the level of habitual
larceny." On 25 April 2018 the jury returned a verdict
finding Defendant guilty of larceny.
the jury returned its verdict, Defendant became agitated,
made comments to the jury, and was removed from the courtroom
when he got "more and more out of control." The
court found that Defendant "was a physical threat to
everyone in the courtroom" and ruled that he had waived
his right to be present.
habitual felon phase of the trial proceeded in
Defendant's absence.Defendant's counsel declined to
stipulate to Defendant's felony record. Karla Tower, an
assistant clerk of the Rutherford County Superior Court,
testified about Defendant's prior felony convictions and
the jury found Defendant guilty of being an habitual felon.
next day, the court reconvened for sentencing with Defendant
present. The court found Defendant to have a level VI prior
felony record level, and sentenced Defendant to 103 to 136
months' imprisonment. Defendant appeals.
argues the indictment charging him with habitual larceny was
facially invalid because it did not allege all the essential
elements of the offense. We disagree.
General Statues provide that larceny of property valued $1,
000 or less is a misdemeanor, and larceny of property valued
more than $1, 000 is a felony. N.C. Gen. Stat. §
14-72(a) (2017). But our statutes also provide that a charge
of larceny ordinarily classified as a misdemeanor can be
elevated to a felony charge when the defendant has committed
four or more prior larcenies. The larceny must have been:
[c]ommitted after the defendant has been convicted in this
State or in another jurisdiction for any offense of larceny
under this section, or any offense deemed or punishable as
larceny under this section, or of any substantially similar
offense in any other jurisdiction, regardless of whether the
prior convictions were misdemeanors, felonies, or a
combination thereof, at least four times. A conviction
shall not be included in the four prior convictions required
under this subdivision ...