An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1446
                         NORTH CAROLINA COURT OF APPEALS
                             Filed:     19 August 2014

STATE OF NORTH CAROLINA

                                              Buncombe County
      v.
                                              Nos. 12 CRS 984-85

EVERETTE LEE MCKINNON


      Appeal by defendant from judgments entered 28 June 2013 by

Judge Marvin P. Pope in Buncombe County Superior Court.                        Heard

in the Court of Appeals 4 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      David D. Lennon, for the State.

      Charlotte Gail Blake for defendant-appellant.


      ERVIN, Judge.


      Defendant     Everette     Lee    McKinnon     appeals       from    judgments

sentencing him to active terms of imprisonment based upon his

convictions for two counts of felonious larceny.                          On appeal,

Defendant contends that the trial court erred by denying his

motion     to   arrest   judgment     with   respect    to   one    of    these   two

felonious larceny convictions on the grounds that the evidence

presented at trial showed the commission of one, rather than
                                          -2-
two,       offenses.      After   careful       consideration   of    Defendant’s

challenge to the trial court’s judgments in light of the record

and the applicable law, we conclude that judgment in one of the

two cases before us should be arrested and the judgment in the

other case should remain undisturbed.

                             I. Factual Background

                              A. Substantive Facts

       On 3 July 2011, Defendant drove a van to a Sam’s Club store

in Asheville.          After the van pulled into the parking lot at 1:05

p.m. and parked, a passenger exited the van, entered the store,

obtained a “return sticker” from one of the store’s greeters,

and returned to the van.1            At that point, Defendant exited the

van and entered the store at 1:15 p.m.                   After loading a 55”

Samsung television onto a flatbed cart, Defendant proceeded to

the    service     desk,     where   he    obtained    an   extended     warranty

brochure from Susan Buckner, a Sam’s Club employee.                     Following

his    conversation        with   Ms.     Buckner,    Defendant      brought   the

television to an exit door, where an exit greeter “grabbed a

refund sticker off of that television” and motioned toward the

service desk before waving Defendant, along with the television,

through the exit at 1:24 p.m.
       1
      A return, or “refund,” sticker is provided to a customer
who is returning an item of merchandise. The customer takes the
returned item with the sticker to the store’s service desk to
obtain a refund or replacement merchandise.
                                      -3-
    After     loading     the   television     into     his   van,    Defendant

reentered the store with the empty flatbed cart, placed a second

55” Samsung television onto the cart at approximately 1:27 p.m.,

and returned to the service desk.            Upon arriving at the service

desk, Defendant told Ms. Buckner that he had locked his keys in

his car, asked if she had a coat-hanger, and              “proceeded back to

the exit door greeter, who thought it was the same television

that just left.”     After asking Ms. Buckner “if it was okay for

him to take the TV out[,]” the exit greeter allowed Defendant to

leave the store with the second television.

                          B. Procedural History

    On 5 November 2012, the Buncombe County grand jury returned

bills   of   indictment    charging    Defendant      with    two    counts   of

felonious larceny.2       The charges against Defendant came on for

trial before the trial court and a jury at the 24 June 2013

criminal session of the Buncombe County Superior Court.                  On 27

June 2013, the jury returned verdicts convicting Defendant of

two counts of felonious larceny.            After the return of the jury’s

verdicts,    Defendant     unsuccessfully       moved    that   judgment      be

    2
      Although Defendant had also been charged with having
attained the status of an habitual felon, the trial court
dismissed the habitual felon indictment on the grounds that one
of the predicate felonies upon which the State relied in seeking
to have Defendant sentenced as an habitual felon had been
obtained in violation of Defendant’s right to the assistance of
counsel.
                                              -4-
arrested in one of the two cases in which he had been convicted

of felonious larceny on the grounds that the evidence presented

at trial only sufficed to support a single felonious larceny

conviction.            At    the   conclusion           of    the    ensuing        sentencing

hearing, the trial court entered judgments sentencing Defendant

to   two   consecutive          terms    of    18       to   22     months    imprisonment.

Defendant noted an appeal to this Court from the trial court’s

judgments.

                            II. Substantive Legal Analysis

      In   his    sole        challenge      to     the      trial    court’s       judgments,

Defendant contends that the trial court erred by denying his

motion to arrest judgment with respect to one of the two counts

of   felonious         larceny     for       which      he     was    convicted.            More

specifically,          Defendant    argues          that      the    theft     of     the   two

televisions           constituted        a     single         continuous        transaction

sufficient       to    support     only      one,       rather      than     two,    felonious

larceny convictions.            Defendant’s argument has merit.

      According        to     well-established            North      Carolina       law,    “[a]

single     larceny      offense     is       committed        when,     as    part     of   one

continuous    act       or     transaction,         a   perpetrator          steals    several

items at the same time and place.”                           State v. Froneberger, 81

N.C. App. 398, 401, 344 S.E.2d 344, 347 (1986).                               The principle

enunciated in Froneberger was applied in State v. Marr, 342 N.C.
                                    -5-
607, 610, 467 S.E.2d 236, 237 (1996), in which the defendants

took items from two separate buildings, a mobile home and shop,

located on the victim’s premises, placed the stolen items in two

cars belonging to the victim and drove away.               On appeal, the

Supreme Court held that the evidence supported a single larceny

conviction, rather than four, stating that:

             In State v. Adams, 331 N.C. 317, 416 S.E.2d
             380 (1992), we held that a single larceny
             offense is committed when, as part of one
             continuous act or transaction, a perpetrator
             steals several items at the same time and
             place.   That is the case here.     Although
             there was evidence of two enterings, the
             taking of the various items was all part of
             the same transaction.

Id. at 613, 467 S.E.2d at 239.           Similarly, in State v. Hargett,

157   N.C.   App.   90,   91-92,   577    S.E.2d   703,   704   (2003),   the

defendant was convicted of two counts of larceny for breaking

into two work vans and stealing, inter alia, a circular saw from

each van.     On appeal, this Court arrested judgment with respect

to one of the two larceny convictions, stating that:

             The trial court erred in convicting and
             sentencing   defendant   for    two   separate
             larcenies.     Defendant   took   tools   from
             multiple vans owned by Queen City Electric,
             but the vans were parked inside the same
             locked fence in close proximity.           The
             larcenies from the separate vans occurred
             within the same general time period.        We
             hold the larcenies were part of a single
             continuous transaction.
                                       -6-
Id. at 96, 577 S.E.2d at 707.               Finally, in State v. Phillips,

172 N.C. App. 143, 144, 615 S.E.2d 880, 881 (2005), a group of

defendants     stole    five    all-terrain-vehicles       from    an       outdoor

supply store by cutting a hole in the store’s perimeter fence

and “push[ing] the ATVs through the hole in the fence and into a

nearby wooded area.”         “Because the ATVs were large and unwieldy,

the men had to make at least four separate trips before all the

ATVs were secured.”          Id.     Nonetheless, because the defendants

“stole all five ATVs from the same victim during one break-in,

occurring on the same night[,]” and “[t]here was no interruption

in the events once the transaction began[,]” this Court held

that the defendants’ “actions were part of a single, continuous

transaction,” with the fact that the defendants “made several

trips   to    move     the   large    and     cumbersome   ATVs”      not     being

sufficient     to    “convert       this     offense   into    five     separate

offenses.”     Id. at 147-48, 615 S.E.2d at 883.              As a result, the

decisional law in this jurisdiction clearly establishes that the

theft of multiple items from the same location at approximately

the same time is a single theft even if the perpetrator has to

make multiple entries into the location from which the items

were stolen in order to remove the stolen items.

    A careful review of decisions such as Marr, Hargett, and

Phillips     establishes     that    the    evidence   presented   before      the
                                   -7-
trial   court   in   this   case   only   sufficed   to   establish   the

commission of a single felonious larceny.            Although the State

argues that the trial court correctly denied Defendant’s motion

in arrest of judgment on the grounds that Defendant engaged in

“two separate acts of deception” to obtain the televisions, this

argument overlooks the fact that Defendant’s ability to steal

the second television hinged, in large part, on the temporal

proximity between the two takings, a circumstance that Defendant

utilized in order to lull the store employees into believing

that Defendant had only taken one, rather than two, televisions

from the store.      Aside from the fact that the record does not

appear to provide significant factual support for this “multiple

deception” argument, the State has not cited any authority in

support of the legal principle that it has urged us to adopt,

and we know of none.        Similarly, we are not persuaded by the

State’s argument that the principle enunciated in Marr, Hargett,

and Phillips has no application in this case on the grounds that

the transaction in which the two televisions were taken involved

an interruption, given that the Defendant appears to have been

continuously involved in stealing televisions from Sam’s Club

from the time that he arrived in the parking lot until his final

departure from the premises, and that Defendant did not retain

control over all of the stolen property throughout the series of
                               -8-
events that occurred at the time of the theft, given that the

first television was clearly in the van in which Defendant came

to the Sam’s Club while the second television was being stolen.

As a result, we conclude that, since the evidence developed at

trial only supports a single felonious larceny conviction, the

trial court erred by denying Defendant’s motion in arrest of

judgment.

                         III. Conclusion

     Thus, for the reasons set forth above, we conclude that

Defendant’s sole challenge to the trial court’s judgments has

merit.   As a result, judgment in Buncombe County File No. 12 CRS

985 should be, and hereby is, arrested, while the trial court’s

judgment in Buncombe County File No. 12 CRS 984 should, and

hereby does, remain undisturbed.3

     NO ERROR IN BUNCOMBE COUNTY FILE No. 12 CRS 984; JUDGMENT

ARRESTED IN BUNCOMBE COUNTY FILE NO. 12 CRS 985.

     Judges ROBERT C. HUNTER and STEPHENS concur.

     Report per Rule 30(e).




     3
      As a result of the fact that the amount of restitution that
Defendant was ordered to pay in the judgment entered in Buncombe
County File No. 12 CRS 984 encompasses the value of both
televisions, we leave that judgment undisturbed.
