State v Owens

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-357 NORTH CAROLINA COURT OF APPEALS Filed: 20 September 2011 STATE OF NORTH CAROLINA v. Cumberland County No. 09 CRS 54863 ANDREW DAVID OWENS Appeal by defendant from judgments entered 16 November 2010 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 6 September 2011. Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State. Mercedes O. Chut for defendant-appellant. HUNTER, JR., Robert N., Judge. Defendant Andrew David Owens appeals from judgments entered upon jury verdicts finding him guilty of identity theft and misdemeanor larceny. Defendant argues the trial court erred in denying his motion to dismiss the charges for insufficiency of the evidence. evidence as Because we find the State presented sufficient to the disputed elements of the withstand a motion to dismiss, we find no error. offenses to -2The State s evidence tended to show the following: On 8 April 2009, Timothy Brown was working as a security guard at a Wal-Mart in Fayetteville. Mr. Brown witnessed defendant enter the store, grab a plastic shopping bag, and proceed to the beer aisle. Defendant looked around to make sure no one was watching him, and then placed a twelve-pack of beer in the plastic bag. Defendant walked to the front of the store, briefly stood in the checkout line, and then, without having paid for the beer, began to walk out of the store. As defendant passed through the metal detectors, Mr. Brown stopped defendant and identified himself as a Wal-Mart employee. Mr. Brown asked defendant to follow him prevention office, and defendant complied. into the loss Mr. Brown asked defendant for a form of identification, and defendant handed Mr. Brown two Because he birth certificates, could not verify each with defendant s a different identity, Mr. name. Brown called the police. Officer Rodney Miller of the Fayetteville Police Department responded to the call. Officer Miller asked defendant who he was, and defendant answered that his name was Michael Street, which corresponded to the name on one of the birth certificates. Officer Miller identification, certificates. asked but defendant defendant only if he produced had the any two photo birth Upon returning to his patrol car and running -3 Michael could Street not through positively the police determine database, defendant was Officer Michael Miller Street. While detained at the Wal-Mart, defendant later explained to Officer Miller that the second birth certificate belonged to a deceased friend named David Owens. Officer carried Miller by arrested defendant, defendant which and contained secured several a folder documents. Because defendant identified himself as Michael Street and said the birth certificate in the name of Michael Street belonged to him, Officer Miller processed and fingerprinted defendant for misdemeanor larceny under the name Michael Street. Upon going through defendant s paperwork a second time, Officer Miller found a document that contained a photograph of defendant and gave his name as Owens, Andrew D, which matched the name on the birth certificate defendant claimed belonged to his friend. When Officer Miller brought this to defendant s attention, defendant said, You got me. reprocessed as Andrew David Owens and theft in addition to misdemeanor larceny. examiner with the Fayetteville Police Defendant was then charged with identity A latent fingerprint Department found that defendant s fingerprints taken on 8 April 2009 matched those on file for Andrew David Owens. Defendant now argues the trial court erred in denying his motion to dismiss the charges of identity theft and misdemeanor -4larceny for insufficiency of the evidence. To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense and that defendant is the perpetrator of the offense. See State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. at 717, 483 S.E.2d at 434 (citation and quotation marks omitted). In ruling on the motion to dismiss, the trial court must view all of the evidence . . . in the light most favorable to the State, giving the State the benefit of every reasonable contradictions in its favor. inference Id. and resolving any If there is more than a scintilla of competent evidence to support the allegations in the warrant or indictment, it is the court s duty to submit the case to the jury. State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958). Identity theft occurs when: A person [] knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person for the purposes of making financial or credit transactions in the other person s name, to obtain anything of value, benefit, or advantage, or for the purpose of avoiding legal consequences. . . . -5N.C. Gen. Stat. § 14-113.20(a) (2009) (emphasis added). Under the statute, identifying information includes social security numbers, state identification cards, and [a]ny other numbers or information that can be used to access a person s financial resources. Id. Defendant argues that the statute contains no specific reference to birth certificates, and is therefore inapplicable. We disagree. Once defendant was stopped potential legal consequences. for shoplifting, he faced To avoid those consequences, he pretended to be someone else by presenting that person s birth certificate as a means of identification. We hold that use of another s birth certificate as identification for the purpose of avoiding legal consequences falls within the scope of N.C. Gen. Stat. § 14-113.20. presented Accordingly, we conclude sufficient evidence to establish committed the offense of identity theft, that the State that defendant and thus the trial court did not err in denying defendant s motion to dismiss. Defendant further argues that the trial court erred in denying his motion to dismiss because the State did not prove that the original owner of the information used by defendant did not give his consent . . . . Defendant correctly points out that in State v. Dammons, 159 N.C. App. 284, 295, 583 S.E.2d 606, 613, disc. review denied, 357 N.C. 579, 589 S.E.2d 133 -6(2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004), this Court found lack of consent to be an essential element of identity theft. However, in Dammons, the acts took place in 2001, prior to a change in the statute. S.E.2d 608-09. Id. at 287-88, 583 In 2002, the North Carolina General Assembly removed the element of lack of consent from N.C. Gen. Stat. § 14-113.20(a). See 2002 N.C. Sess. Laws 788, ch. 175, § 4. erred in Accordingly, this argument is overruled. Next, failing to disagree. defendant dismiss argues the that charge of the trial court misdemeanor larceny. We Larceny is a wrongful taking and carrying away of the personal property of another without his consent with intent to deprive the owner of his property. N.C. 101, 103, 249 S.E.2d quotation marks omitted). 427, State v. Carswell, 296 428 (1978) (citation and Without the element of carrying the property away, there is no larceny, only attempted larceny. See State v. Wilfong, 101 N.C. App. 221, 222, 398 S.E.2d 668, 669 (1990), appeal dismissed, 328 N.C. 336, 404 S.E.2d 864 (1991). This Court has held that an article need not be completely removed from the owner s premises to constitute larceny. See State v. Walker, 6 N.C. App. 740, 171 S.E.2d 91 (1969). In Carswell, our Supreme Court held that removal of an air conditioner from its base in the window to a point on the floor four to six inches toward the door was a sufficient taking and -7asportation to support a larceny conviction. Carswell, 296 N.C. at 104, 249 S.E.2d at 429. Here, Mr. Brown stopped defendant as soon as he had passed the metal detector. Although the evidence does not reveal whether defendant was inside or outside the store at the point where he was stopped, it does reveal that he had put the beer in a plastic bag and was leaving the store without paying. Viewing this evidence in the light most favorable to the State, we find it sufficient Accordingly, to we withstand overrule defendant s defendant s received a fair trial, free from error. No error. Judges MARTIN and THIGPEN concur. Report per Rule 30(e). motion argument to and dismiss. find he

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