State v. Primus
227 N.C. App. 428
| N.C. Ct. App. | 2013Background
- Primus was convicted of attempted felony larceny and injury to personal property; convictions consolidated with a 10–12 month sentence.
- Mr. Wendell Smith awoke to barking at ~7:00 a.m. on 11 March 2011 and saw defendant driving away with a trailer carrying an A/C unit.
- Defendant initially claimed multiple A/C units in the woods, then admitted taking the unit from Ms. McDonald’s mobile home.
- Ms. McDonald found the A/C unit behind her home with wires/piping cut, previously attached to her mobile home.
- Defendant was indicted on 19 September 2011 for two offenses; trial occurred 25 June 2012; the jury convicted; defense appeals finalized after sentencing on 29 June 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted felony larceny | State argues substantial evidence supports all elements of attempted larceny | Primus contends evidence only supports completed larceny, not the attempt | Evidence supports finished larceny; Canup rationale upholds conviction for attempted larceny |
| Is the jury instruction that wires and piping are personal property improper | State says instruction is proper pattern instruction | Primus contends instruction showed court opinion on a factual issue | Instruction not preservable; if error, harmless as supported by evidence |
Key Cases Cited
- State v. Smith, 186 N.C. App. 57 (2007) (sufficiency review for dismissal motions; substantial evidence standard)
- State v. Fritsch, 351 N.C. 373 (2000) (motion-to-dismiss standard; substantial evidence elements)
- State v. Allen, 193 N.C. App. 375 (2008) (elements of larceny and criteria for completed vs. attempted offenses)
- State v. Perry, 305 N.C. 225 (1982) (larceny elements and interpretation of intent to deprive permanently)
- State v. Weaver, 123 N.C. App. 276 (1996) (elements of attempted larceny; overt act requirement)
- State v. Canup, 117 N.C. App. 424 (1994) (cannot negate attempt by completion evidence; lesser-included analysis)
- State v. Wade, — (—) (discussion of when to uphold lesser charges under related offenses)
- State v. Merritt, 120 N.C. App. 732 (1995) (harmless error when opinion is supported by evidence)
- State v. Eason, 328 N.C. 409 (1991) (preservation requirement for claimed trial-court opinions; harmless error analysis)
- State v. Young, 324 N.C. 489 (1989) (mandatory ban on trial-court expressions of opinion; preservation rule)
- State v. Carswell, 296 N.C. 101 (1978) (asportation suffices for larceny)