State v. Sexton
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1086 NORTH CAROLINA COURT OF APPEALS Filed: 20 May 2014 STATE OF NORTH CAROLINA v. Wake County No. 12 CRS 213765 ANTHONY JOHN SEXTON Appeal by defendant from judgment entered 14 February 2013 by Judge Michael J. O Foghludha in Wake County Superior Court. Heard in the Court of Appeals 22 January 2013. Roy Cooper, Attorney General, by Elizabeth Assistant Attorney General, for the State. A. Fisher, Daniel F. Read for defendant-appellant. DAVIS, Judge. Anthony John Sexton ( Defendant ) conviction for felonious larceny of a dog. appeals from his On appeal, he argues that the trial court erred by (1) denying his motion to dismiss the charge allowing against testimony him for regarding insufficient his temper evidence; and use of and (2) profane language, his conduct towards one of the State s witnesses, his physical appearance at the time of the subject incident, and his -2conduct the day after the incident. After careful review, we conclude that Defendant received a fair trial free from error. Factual Background The State presented evidence at trial tending to establish the following facts: Marshall ), children Denise left for Father s Day. On 16 June 2012, Linwood Marshall ( Mr. Marshall a weekend ( Mrs. trip to Marshall ), the beach and to their celebrate The Marshalls left their dog, Malibu, at their home in Youngsville, North Carolina, having previously arranged for Mrs. Marshall s Malibu. mother to visit the house and care for When Mrs. Marshall s mother visited the house to feed Malibu on 16 June 2012, she discovered that Malibu was not in her pen. Upon returning home and discovering that Malibu missing, Mr. Marshall searched the neighborhood for the dog. was He learned that one of the neighborhood children had been walking Malibu, that the child had accidentally dropped her leash, and that Malibu then took off. The same morning that Malibu was discovered to be missing, Richard Aleksic girlfriend, ( Mr. Charlene Aleksic ) Dossett, in who the was staying residence next with door his to Defendant s home witnessed Defendant chasing Malibu through a wooded area near his house. Mr. Aleksic saw Defendant grab Malibu s leash and say: I got you now, you motherf er. . . . -3I m going to take care of this f ing sh t once and for all. Approximately occurred between one Mrs. month earlier, Marshall and an Defendant chased her while she was walking Malibu. confronted Defendant about responded: [M]y dogs? his altercation dogs when his had dogs When Mrs. Marshall behavior, Defendant Your dog comes over here all the time . . . [S]he was over here last week and I got a video of it. After this incident, Mrs. Marshall did not walk Malibu by Defendant s house anymore. On 17 June 2012, Deputy B.J. Simmons ( Deputy Simmons ) of the Wake County Sheriff s Office was on duty and received a call from dispatch missing to dog. meet After Mr. Marshall Deputy at Simmons his home arrived, regarding Mr. a Marshall explained to him that Malibu was missing and that one of their neighbors had seen Defendant grab what appeared to be their dog. After gathering some information from Mr. Marshall, Deputy Simmons proceeded to knock on Defendant s door, identify himself as a deputy sheriff, and inform Defendant that he was looking for the Marshalls dog. When Deputy Simmons told Defendant that Mr. Aleksic had seen him grab Malibu the previous day, Defendant replied that he had been at work that Saturday morning and that he did not know Mr. Aleksic. Two days later, Mr. Aleksic was driving in his car and discovered that Defendant was following him. For approximately -4twenty minutes, Defendant continued to follow Mr. Aleksic while making obscene gestures, giving [him] the finger . . . [and] riding [his] bumper. was instructed to Mr. Aleksic called the Highway Patrol and turn on his four-way flashers. Aleksic did so, Defendant stopped following him. Once Mr. Mr. Aleksic believed that Defendant s actions were retaliatory and that Defendant was trying to scare [him] or trying to run [him] off the road because Mr. Aleksic knew the situation with Malibu. On 7 August 2012, Defendant was indicted and charged with felonious larceny of a dog in violation of N.C. Gen. Stat. ยง 1481(a)(1). A jury trial was held beginning on 13 February 2013 in Wake County Superior Court. The jury found Defendant guilty, and the trial court entered judgment on the jury s verdict. The trial court sentenced Defendant to 6 to 17 months imprisonment, suspended the sentence, and placed probation for a period of 24 months. Defendant on supervised Defendant gave notice of appeal in open court. Analysis I. Denial of Motion to Dismiss Defendant s court erred insufficiency in of first argument denying the his on motion evidence. appeal to is that dismiss Defendant the based argues trial on the that the evidence presented at trial raised only a mere suspicion of his guilt of the larceny of Malibu such that dismissal of the -5charge was warranted. We disagree. A trial court s denial of a defendant s motion to dismiss is reviewed de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). When ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, 347 (2012) (citation and quotation marks omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). 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. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both. Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000) (citations and quotation marks omitted). If there is any evidence tending to prove guilt or which reasonably leads to this conclusion as a -6fairly logical and legitimate deduction, it is for the jury to say whether it is defendant s guilt. convinced beyond a reasonable doubt of State v. Franklin, 327 N.C. 162, 171-72, 393 S.E.2d 781, 787 (1990). To overcome a motion to dismiss a charge of larceny, the State must present substantial evidence that the defendant 1) took the property of another; 2) carried it away; 3) without the owner s consent; and 4) with the intent to deprive the owner of the property permanently. State v. Osborne, 149 N.C. App. 235, 242-43, 534 562 S.E.2d 528, (citation and quotation marks omitted), aff d per curiam, 356 N.C. 424, 571 S.E.2d 584 (2002). Here, the State offered testimony from Mr. Aleksic that Defendant (1) ran after Malibu, chasing her through the wooded area near his house; (2) grabbed Malibu s leash and pulled her back onto his property; and (3) shouted I got you now, you motherf er. . . . I m going to take care of this f ing sh t once and for all after he had grabbed Malibu s leash. The State s evidence demonstrated that Defendant knew Malibu was the Marshalls dog and that the Marshalls had not given Defendant consent or permission to take Malibu. See State v. Moore, 46 N.C. App. 259, 262, 264 S.E.2d 899, 900 (1980) (concluding that person may be convicted of larceny when he finds and keeps lost property if at the time he finds the property he knows or has reason to believe that he can ascertain -7the owner offered of the property circumstantial permanently deprive (citation evidence the Marshalls of of omitted)). The Defendant s their dog State intent to through Mr. Aleksic s testimony that he overheard Defendant state he was going to take care of this f ing sh t once and for all and the fact that Defendant never returned Malibu to the Marshalls. Furthermore, the fact that Defendant followed Mr. Aleksic s vehicle for approximately twenty minutes under these circumstances allowed the jury to infer that he was trying to intimidate Mr. Aleksic so as to prevent him from testifying against Defendant. See State v. Brockett, 185 N.C. App. 18, 26, 647 S.E.2d 628, 635 ( Generally, an attempt by a defendant to intimidate a witness to affect the witness s testimony is relevant and admissible to show the defendant s awareness of his guilt. ), disc. review denied, 361 N.C. 697, 654 S.E.2d 483 (2007). Based on all of this evidence, a reasonable juror could have concluded that Defendant was guilty of taking and carrying away Malibu without the Marshalls consent and with the intent to permanently deprive them of their dog. Accordingly, we hold that the trial court did not err in denying Defendant s motion to dismiss. II. Admission of Evidence Physical Appearance Concerning Defendant s Conduct and -8Defendant next asserts that the trial court committed plain error by admitting testimony relating to (1) his following Mr. Aleksic s car for approximately twenty minutes; (2) his use of profane language; (3) the big shaggy beard he had at the time of the incident and the fact that he shaved it prior to trial; and (4) the fact that he was digging in his backyard with a tractor the Defendant day after Malibu was discovered to be missing. argues that although individually these irrelevant character attacks and arguments may not have risen to the level of reversible error, taken together [Defendant] of a fair trial. they served to deprive Defendant acknowledges that he did not object to the introduction of this evidence at trial and is, therefore, limited to plain error review on appeal. Under plain error review, Defendant bears the burden of showing that the alleged error had a probable impact on the jury s finding Lawrence, 365 that N.C. the defendant 506, 518, was 723 (citation and quotation marks omitted). guilty. S.E.2d 326, State 334 v. (2012) [T]he plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error. State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453, 463 (2009) (emphasis added). Here, Defendant has failed to make such a showing. He offers no argument or explanation as to how any of the alleged -9evidentiary errors committed by the trial court on an individual basis were so fundamental that justice could not have been done or why these errors had a probable impact on the jury s finding of guilt. 536 S.E.2d 36, 61 L.Ed.2d 641 (2001). State v. Cummings, 352 N.C. 600, 636, (2000), cert. denied, 532 U.S. 997, 149 As our Supreme Court has explained: The right and requirement to specifically and distinctly contend an error amounts to plain error does not obviate the requirement that a party provide argument supporting the contention that the trial court s [improper admission of evidence] amounted to plain error, as required by subsections (a) and (b)(5) of Rule 28 [of the North Carolina Rules of Appellate Procedure]. To hold otherwise would negate those requirements, as well as those in Rule 10(b)(2). Defendant s empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule. Id. at 636-37, 536 S.E.2d at 61 (internal citations omitted). Because Defendant has failed to provide this Court with any specific argument as to why the admission of each challenged piece of evidence rose to the level of plain error, he has failed to meet his burden of establishing plain error. See State v. Wiley, 355 N.C. 592, 623-24, 565 S.E.2d 22, 44 (2002) (holding that where defendant asserts plain error but provides no explanation as to why any alleged error rises to the level of plain error. . . . , defendant has effectively failed to argue plain error and has thereby waived appellate review ), cert. -10denied, 537 U.S. 1117, 154 L.Ed.2d 795 (2003). Conclusion For these reasons, we conclude that Defendant received a fair trial free from error. NO ERROR. Judges STEELMAN and STEPHENS concur. Report per Rule 30(e).
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