State v. Sheppard
228 N.C. App. 266
| N.C. Ct. App. | 2013Background
- Defendant arrested (Nov. 11, 2010) for purse theft from a shopping cart.
- Indicted (Mar. 7, 2011) on financial card theft, larceny from the person, felony larceny; habitual felon indictment filed separately.
- Jury trial began (Jul. 9, 2012) before Judge Wood; victim testified purse taken from a cart while in the victim's sight.
- Purse was in the child’s seat of the victim’s shopping cart, within arm’s reach during the theft.
- Jury convicted on larceny from the person and felony larceny of goods >$1,000, and on habitual felon status (Jul. 12, 2012); consolidated judgment.
- Court sentenced 110 to 141 months and credited 610 days; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was substantial evidence for larceny from the person | Sheppard argues insufficient evidence. | Lee contends the purse was not under protection or control. | No error; substantial evidence supported larceny from the person. |
| Whether sentencing for both larceny from the person and felony larceny for a single larceny was proper | State argues separate convictions. | Sheppard says only one larceny occurred; cannot punish twice. | Erroneous to enter judgments for both offenses; only one larceny sentencing proper. |
| Whether the indictment defection mapping to felony larceny >$1,000 deprived jurisdiction | Indictment inconsistency; felonious goods value stated as $1,000. | Inconsistency vacates felony larceny conviction. | Conviction for felony larceny >$1,000 vacated; remand for resentencing on remaining offense. |
Key Cases Cited
- State v. Smith, 186 N.C. App. 57, 650 S.E.2d 29 (2007) (standard for reviewing dismissal motions; substantial evidence required)
- State v. Fritsch, 351 N.C. 373, 526 S.E.2d 451 (1993) (substantial evidence standard clarified)
- State v. Barnes, 334 N.C. 67, 430 S.E.2d 914 (1993) (dismissal standard; role of essential elements)
- State v. Rose, 339 N.C. 172, 451 S.E.2d 211 (1994) (evidence review; light favorable to State)
- State v. Wilson, 154 N.C. App. 686, 573 S.E.2d 193 (2002) (larceny from the person elements; immediate presence concept)
- State v. Lee, 88 N.C. App. 478, 363 S.E.2d 656 (1988) (distinguishing unattended cart scenario from present case)
- State v. Buckom, 328 N.C. 313, 401 S.E.2d 362 (1991) (larceny from the person scope; control/protection test)
- State v. Boston, 165 N.C. App. 890, 600 S.E.2d 863 (2004) (distance and immediate awareness affect 'immediate presence')