Opinion
No. COA12–1156.
2013-04-2
STATE of North Carolina v. Virgil WINGO and Ervin Wingo, Defendants.
Attorney General Roy A. Cooper, III, by Assistant Attorney General, Janelle E. Varley, for the State (Virgil Wingo). Attorney General Roy A. Cooper, III, by Assistant Attorney General Ellen E. Newby, for the State (Ervin Wingo).
Appeal by defendants from judgments entered on or about 1 March 2012 by Judge Theodore Royster in Superior Court, Union County. Heard in the Court of Appeals 14 March 2013. Attorney General Roy A. Cooper, III, by Assistant Attorney General, Janelle E. Varley, for the State (Virgil Wingo). Attorney General Roy A. Cooper, III, by Assistant Attorney General Ellen E. Newby, for the State (Ervin Wingo).
Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant Virgil Wingo.
Bryan Gates, for defendant-appellant Ervin Wingo.
STROUD, Judge.
Defendants appeal judgments convicting them each of felony breaking and or entering, breaking or entering a motor vehicle, felony larceny, and two counts of misdemeanor larceny. For the following reasons, we arrest judgment as to defendant Virgil Wingo's two convictions for misdemeanor larceny; otherwise, we find no error.
I. Background
In November of 2010, Mr. Oliver Nelson Dale was driving past a farm owned by his half-brother, Mr. William Chad Summerlin, when he noticed a truck he did not recognize backed up to a barn on the property. Mr. Dale and Mr. Summerlin were in business together restoring and reselling various items, and they stored some of the items used in this business on Mr. Summerlin's farm. Mr. Dale confronted defendants about being on the land, looked inside defendants' truck and saw items which had been stored at various locations on the farm, including “chains, a big—a few batteries, car batteries, big surrey for horse and buggy, fairly large items, and then some—anything that was metal and had some weight to it.” Mr. Dale also noticed in defendants' truck several parts from an Opel car on the property, including a steering column, radio, and radiator along with some items which had been stored “inside the porch of the house, the main house.” When Mr. Dale confronted defendants as to why they were there removing items from the property, defendants claimed that “the bank” had them there to clean up the property. Though the farm was for sale, there was no bank involved with it. After a jury trial, defendants were each convicted of felony breaking and or entering, breaking or entering a motor vehicle, felony larceny, and two counts of misdemeanor larceny. Defendants appeal.
II. Multiple Larceny Counts
Defendant “Virgil Wingo respectfully requests that this Court arrest judgment on his two misdemeanor larceny convictions” because “the State's evidence showed that all three [larceny] counts arose from a single continuous transaction.” Defendant Virgil directs this Court's attention to State v. Marr wherein,
[t]he defendant was convicted of four separate larcenies, which were larceny after entering the mobile home, larceny after entering the shop, larceny by taking the Volvo automobile, and larceny by taking the Ford truck. Judgment was arrested on the conviction of larceny after entering the mobile home. The defendant concede[d] the evidence supports a conviction of larceny but contends there was only one larceny.
State v. Marr, 342 N.C. 607, 613, 467 S.E.2d 236, 239 (1996). This Court concluded that all of the larcenies were part of a continuous transaction, noting that
[i]n State v. Adams, 331 N.C. 317, 416 S.E.2d 380 (1992), we held that a single larceny offense is committed when, as part of one continuous act or transaction, a perpetrator steals several items at the same time and place. That is the case here. Although there was evidence of two enterings, the taking of the various items was all part of the same transaction. We arrest judgment on two of the convictions of larceny.
Id. The State's brief concedes that “[t]he State is unable to distinguish the cases cited by the defendant and it appears that the Court must arrest judgment on the misdemeanor larceny convictions.” Pursuant to Marr, we arrest judgment on two of defendant Virgil Wingo's convictions for misdemeanor larceny. See id. Because we cannot presume that defendant Virgil Wingo's convictions on two additional counts of misdemeanor larceny had no effect on his sentence, we must remand for resentencing. State v. Surrett, –––N.C.App. ––––, ––––, 719 S.E.2d 120, 127 (2011).
III. Jury Instructions
Both defendants contend that the trial court committed plain error in numerous ways in instructing the jury. Overall, defendants contend that the trial court's instructions as to the various offenses as applied to each individual defendant were too confusing for the jury to possibly follow as they failed to clearly distinguish between which defendant was being charged with what offenses and which offense the trial court was instructing on was often unclear. Neither defendant raised any objections to the jury instructions or sought to clarify them at trial.
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.
State v. Lawrence, 365 N.C. 506, ––––, 723 S.E.2d 326, 334 (2012) (citations, quotation marks, and brackets omitted).
After a thorough review of the jury instructions, we agree that the instructions are somewhat confusing; the trial court also recognized and noted the confusing nature of the instructions while giving them, but given the multiple similar charges against each of the two defendants, the instructions would necessarily be quite complicated. The verdict sheets did clearly identify each defendant and each charge and defendants do not argue otherwise. Defendants fail to demonstrate that any error by the trial court “had a probable impact on the jury's finding that the defendant[s were] guilty” in light of the overwhelming evidence against defendants which included an eyewitness who caught defendants in the act of removing the specific items for which they were charged from Mr. Summerlin's property without a lawful reason. Lawrence, 365 N.C. at ––––, 723 S.E.2d at 334. This argument is overruled.
IV. Conclusion
For the foregoing reasons, we arrest judgment as to defendant Virgil Wingo's convictions for misdemeanor larceny and remand for resentencing; otherwise, we find no error.
JUDGMENT ARRESTED and REMANDED FOR RESENTENCING in part; NO ERROR in part. Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).