Opinion
No. COA11–1151.
2012-04-17
STATE of North Carolina v. Billy HILL.
Attorney General Roy Cooper, by Assistant Attorney General Thomas D. Henry, for the State. Ryan McKaig for defendant-appellant.
Appeal by defendant from judgment entered 19 April 2011 by Judge Richard L. Doughton in Cabarrus County Superior Court. Heard in the Court of Appeals 26 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Thomas D. Henry, for the State. Ryan McKaig for defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Defendant Billy Hill appeals from the judgment entered after a jury found him guilty of larceny from the person and he pled guilty to having attained habitual felon status. Defendant contends that the trial court erred when it denied his motion to dismiss the substantive charge and committed plain error when it failed to instruct the jury on the meaning of the phrase “from the person.” We find no error.
On 17 December 2009, defendant and two accomplices, one male and one female, entered a Wal–Mart store in Kannapolis. The unusual behavior of the three individuals, including walking back and forth at the front of the store and looking at the cash registers, attracted the attention of the store's loss prevention officers. One officer watched the three individuals from the store's floor, while another monitored the situation using the store's closed-circuit television system.
As the officers watched, defendant's male accomplice took a bag of potato chips and got into a checkout line. The female accomplice took a cart and stood behind the man in line, blocking the access of other customers. When the man paid for the potato chips, he placed loose change in the bagging area of the checkout line. While the cashier turned her back to the cash register and “took a step away” to pick up the change, defendant walked behind her and took cash from the open register drawer. One of the loss prevention officers called the police after defendant and his accomplices left the store, and they were quickly apprehended by police officers.
An audit determined that defendant took $240 from the register, but that money was not recovered. The store's security cameras recorded the incident, and the recording was admitted into evidence at trial and played for the jury. At trial, the loss prevention officers also identified defendant as the person who took the money from the register.
The jury found defendant guilty of larceny from the person, and defendant pled guilty to having attained habitual felon status. The trial court imposed a term of 146 to 185 months imprisonment. Defendant appealed.
Defendant's first argument is that the trial court erred by denying his motion to dismiss the charge of larceny from the person, because the State presented insufficient evidence that the money was taken “from the person” of the cashier. We disagree.
“When a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine ‘whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.’ “ State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation omitted). “ ‘In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.’ “ State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).
Larceny “from the person” is a felony, regardless of the value of the property stolen. N.C. Gen.Stat. § 14–72(b)(1) (2011). “Larceny from the person forms a middle ground in the common law between the ‘private’ stealing most commonly associated with larceny, and the taking by force and violence commonly associated with robbery.” State v. Buckom, 328 N.C. 313, 317, 401 S.E.2d 362, 365 (1991). “ ‘Property is stolen ‘from the person,’ if it was under the protection of the person at the time.... Moreover, property may be under the protection of the person although not actually ‘attached’ to him.' “ State v. Barnes, 345 N.C. 146, 148, 478 S.E.2d 188, 190 (1996) (citation omitted).
In this case, the evidence, viewed in the light most favorable to the State, establishes that the money was taken from the person of the cashier. Although the money was not in the cashier's pocket, or otherwise attached to her person, it was under her protection in the cash register as she performed her duties at her workstation. Unlike the cases cited by defendant, there is no evidence in this case that the cashier took more than “a step” away from the cash register at the time defendant took the money. Compare Barnes, 345 N.C. at 150, 478 S.E.2d at 191 (larceny victim twenty-five to thirty feet away from stolen property); State v. Lee, 88 N.C.App. 478, 479, 363 S.E.2d 656, 656 (1988) (larceny victim took “four or five” steps away from stolen property). Accordingly, we hold the trial court properly denied defendant's motion to dismiss.
In defendant's remaining argument, he contends the trial court committed plain error by failing to instruct the jury on the meaning of the phrase “from the person.” We disagree.
Defendant acknowledges that he did not request a specific instruction or object to the trial court's jury charge as given and that we must review the instructions for plain error. N.C. R.App. P. 10(a)(4). Plain error is “a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and quotation marks omitted). Under plain error analysis, a defendant is entitled to reversal “only if the error was so fundamental that, absent the error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002).
“In instructing the jury, the trial court must declare and explain the law arising on the evidence, state the evidence to the extent necessary to explain the application of the law and refrain from expressing an opinion as to whether or not a fact has been proved.” State v. Greenidge, 102 N.C.App. 447, 451, 402 S.E.2d 639, 641 (1991) (citing N.C. Gen.Stat. § 15A–1232). “However, the trial court need not instruct the jury with any greater particularity than is necessary to enable the jury to apply the law to the substantive features of the case arising on the evidence when, as here, the defendant makes no request for additional instructions.” State v. Atkinson, 39 N.C.App. 575, 581, 251 S.E.2d 677, 682 (1979).
In this case, the trial court instructed the jury on all of the essential elements of larceny from the person, including “that the defendant took property from the person of the victim.” Defendant did not request additional jury instructions or object to the instructions as given. As the trial court's instructions satisfied its obligation to instruct the jury on all the elements of the offense, we refuse to find that the trial court committed plain error.
No error. Judges BRYANT and GEER concur.
Report per Rule 30(e).