                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA17-612

                                     Filed: 6 March 2018

New Hanover County, No. 15 CRS 60753

STATE OF NORTH CAROLINA

               v.

MAURICE JASON WEBB, Defendant.


       Appeal by Defendant from judgments entered 25 January 2017 by Judge Ebern

T. Watson III in New Hanover County Superior Court. Heard in the Court of Appeals

13 November 2017.


       Attorney General Joshua H. Stein, by Assistant Attorney General Kimberly
       Randolph, for the State.

       Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
       Gomez, for defendant-appellant.


       MURPHY, Judge.


       The issue underlying Maurice Jason Webb-Sholar’s1 (Defendant) arguments

on appeal is whether the State put forth sufficient substantial evidence that he

personally committed the crimes appealed herein. For the reasons that follow, we

hold that this case is analogous to State v. Ethridge, 168 N.C. App. 359, 607 S.E.2d

325 (2005), and, thus, there was sufficient evidence that Defendant perpetrated the



       1Defendant is sometimes referred to as “Maurice Sholar,” “Maurice Webb-Sholar,” or “Maurice
Webb-Scholar” in various court documents. On the Judgments, Defendant’s name appears as “Maurice
Jason Webb.”
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                                   Opinion of the Court



crimes to support a jury finding, of each essential element of the offense charged, and

of Defendant being the perpetrator of each offense.

      Defendant argues that: (1) there was insufficient evidence that Defendant

personally committed the offenses of felony breaking or entering, felony larceny, and

misdemeanor injury to real property, and, thus, it was error for the trial court to deny

Defendant’s motion to dismiss; and (2) as a result of this error, the trial court plainly

erred in its jury instructions on felonious larceny. We disagree, and analyze each

argument in turn.

                                     Background

      During Fall 2015, Defendant introduced himself to Lasonia Melvin as “Jason

Young.”   The two dated “casually” for about one month.          Defendant visited her

apartment several times throughout the relationship, which was located on the

ground floor of an apartment complex in Wilmington.

      Defendant asked Melvin about her plans for Thanksgiving.              Melvin told

Defendant that she and her daughter were traveling out of town. When Defendant

asked to accompany Melvin on this trip, she declined. Shortly thereafter, Melvin

ended the relationship because Defendant was always asking for money, although

Defendant told Melvin he had a job.

      The day before Thanksgiving, Melvin and her daughter left her apartment at

approximately 5:00 p.m. for their trip out of town. Melvin locked the apartment door



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when she left, and asked a neighbor, Henrietta McKoy, to watch her apartment.

McKoy lived across the parking lot from Melvin. Between 10:00 p.m. and 11:00 p.m.,

McKoy saw a dark blue or black vehicle backed into the parking space where Melvin

parks. At the time, McKoy thought the car belonged to Melvin. McKoy went outside

a second time, approximately 30 minutes after first seeing the vehicle, and the vehicle

was still parked in the same space.

        Around the same time, another neighbor, Matthew Lofty (Lofty), sat outside

on his porch, directly above Melvin’s apartment. Throughout the night, Lofty saw a

four-door, dark blue Hyundai parked and backed into Melvin’s parking spot, with the

trunk facing Melvin’s apartment. Lofty saw Defendant and another unidentified

male near Melvin’s apartment. Lofty observed Defendant twice that evening: first

standing in the parking lot, and second, standing directly in front of Melvin’s

apartment door. Lofty also noted he saw the unidentified male in the area each time

he looked down from the porch. Lofty told police that he saw the unidentified male

and Defendant going in and out of the apartment.2 Lofty also stated that, sometime

during the night, he saw a flat screen television in the open trunk of the dark blue

Hyundai.




        2 At trial, Officer Carly Tate testified about Lofty’s statement without objection. We note that
Lofty’s statement to police is inconsistent with his trial testimony. At one point in his testimony, Lofty
stated that he saw Defendant standing outside and the unidentified male going in and out of the
apartment. Later in his testimony, Lofty stated he did not see anyone going back and forth from the
apartment.

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      Heather Wilson (Wilson), who lived with Lofty, exchanged brief pleasantries

with Defendant as she smoked on the upstairs porch. Wilson thought Defendant

seemed nervous during this exchange. Wilson claimed the sunroof and trunk were

open on the vehicle, and that she saw “stuff” in the trunk on at least one occasion.

      Over the course of roughly three hours, Lofty observed Defendant and the

unidentified male went to and from Melvin’s residence four to five times in the dark

blue Hyundai. During one of these visits, as Lofty and Wilson watched, Defendant

noticed he was being observed, appeared “startled,” slammed the trunk closed,

entered the passenger side of the vehicle, and slowly pulled out of the parking lot.

Both Lofty and Wilson heard a lot of noise throughout the night and would look

outside, but could not identify its source.

      The next day Wilson and Lofty noticed the door to Melvin’s apartment was

open, and alerted McKoy, who called the police. When Officer Carly Tate of the

Wilmington Police Department arrived on scene, she noticed Melvin’s door frame was

broken and appeared to have been pried open. Officer Tate entered the apartment

and noticed several items were missing or had been “disturbed.”          Melvin later

determined that three TVs (one of which was an older, 55-inch model), a sapphire

diamond bracelet, a microwave, two laptops (including her work laptop), an Amazon

Fire Stick, several DVDs, and $900 dollars in cash were missing. Melvin’s insurance

company valued her stolen items at approximately $4,000, and paid her roughly



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$3,000 after a $1,000 deductible. Sometime later Wilson picked Defendant out of a

photo lineup, and Lofty also identified Defendant as the perpetrator.

      During the trial, Defendant made a motion to dismiss at the close of the State’s

evidence, and renewed his motion to dismiss at the close of all evidence. The trial

court denied both motions. The trial court instructed the jury on the charges of felony

breaking or entering, felony larceny, and misdemeanor injury to real property. The

jury subsequently returned a verdict of guilty on all counts. The trial court entered

judgments upon the verdicts and sentenced Defendant to 11 to 23 months of

imprisonment for each felony conviction, consolidated; and a consecutive term of 120

days imprisonment for the injury to real property conviction. Defendant timely

appealed in open court.

                                       Analysis

      Defendant presented two arguments on appeal: (1) there was insufficient

evidence that Defendant personally committed the offenses of felony breaking or

entering, felony larceny, and misdemeanor injury to real property, and, thus, it was

error for the trial court to deny Defendant’s motion to dismiss; and (2) as a result of

this error, the trial court plainly erred in its jury instructions on felonious larceny.

We disagree and hold that Defendant received a fair trial, free from error.

A. Motions to Dismiss




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      Defendant argues the State presented insufficient evidence he personally

broke into or entered Melvin’s apartment, personally committed larceny, or

personally injured the apartment door.

      We review the denial of a motion to dismiss for insufficient evidence de novo.

State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).

              Evidence is sufficient to sustain a conviction when, viewed
              in the light most favorable to the State and giving the State
              every reasonable inference therefrom, there is substantial
              evidence to support a jury finding, of each essential
              element of the offense charged, and of defendant’s being
              the perpetrator of such offense.

Id. at 523, 644 S.E.2d at 621 (citations, quotation marks, and alterations omitted).

      “Upon defendant’s motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of the offense charged, or

of a lesser offense included therein, and (2) of defendant’s being the perpetrator of

such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373,

378, 526 S.E.2d 451, 455 (2000) (citation omitted). “In making its determination, the

trial court must consider all evidence admitted, whether competent or incompetent,

in the light most favorable to the State, giving the State the benefit of every

reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d

818 (1995).

              Circumstantial evidence may withstand a motion to


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                dismiss and support a conviction even when the evidence
                does not rule out every hypothesis of innocence. If the
                evidence presented is circumstantial, the court must
                consider whether a reasonable inference of defendant’s
                guilt may be drawn from the circumstances. Once the court
                decides that a reasonable inference of defendant’s guilt
                may be drawn from the circumstances, then it is for the
                jury to decide whether the facts, taken singly or in
                combination, satisfy it beyond a reasonable doubt that the
                defendant is actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (quotation marks, citations, brackets, and

emphasis omitted).

        Here, at the State’s request, the trial court did not instruct the jury on acting

in concert or aiding and abetting. Thus, in order for the jury to find Defendant guilty

of felony breaking and entering, felony larceny, and misdemeanor injury to real

property, “the State was required to prove that defendant committed the offenses

himself.” State v. Haymond, 203 N.C. App. 151, 168, 691 S.E.2d 108, 122 (2010); see

also State v. McCoy, 79 N.C. App. 273, 274, 339 S.E.2d 419, 420 (1986) (“The court

failed to instruct on acting in concert. Accordingly, defendant’s conviction may be

upheld only if the evidence supports a finding that he personally committed each

element of the offense.”).3



        3 We note the logical inconsistency in conducting a de novo review of a motion to dismiss raised
during trial retroactively through a filter of the ultimate jury instructions. However, this is the
standard that we adopted in our prior published opinions and we are bound to follow this retroactive
analysis of a defendant’s motion to dismiss. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30,
37 (1989) (“[A] panel of the Court of Appeals is bound by a prior decision of another panel of the same
court addressing the same question, but in a different case, unless overturned by an intervening
decision from a higher court.”).

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      The jury convicted Defendant of felonious breaking or entering, felonious

larceny, and injury to real property. The elements of felonious breaking or entering

are: “(1) the breaking or entering (2) of any building (3) with the intent to commit any

felony or larceny therein.” State v. Litchford, 78 N.C. App. 722, 725, 338 S.E.2d 575,

577 (1986); see also N.C.G.S. § 14-54(a) (2017). For larceny, the State must prove

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 his property

permanently.” State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982); see also

N.C.G.S. § 14-72 (2017).     The State charged Defendant with felonious larceny,

alleging he took property worth more than $1,000 or acted pursuant to a breaking or

entering. See N.C.G.S. § 14-72(a), (b)(2). It is a misdemeanor to “willfully and

wantonly damage, injure or destroy any real property whatsoever, either of a public

or private nature[.]” N.C.G.S. § 14-127 (2017).

      Defendant cites to State v. Cunningham, 140 N.C. App. 315, 536 S.E.2d 341

(2000), in support of his argument. In Cunningham, the defendant was convicted of

first-degree burglary. Id. at 320, 536 S.E.2d at 345. On appeal, Cunningham argued

the State failed to present sufficient evidence to support the charge. Id. at 320, 536

S.E.2d at 346. The trial court did not instruct the jury as to acting in concert, and,

thus, we reviewed for sufficient evidence that Cunningham personally committed the

crime. Id. at 321-22, 536 S.E.2d at 345.



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      When reviewing the evidence in Cunningham, we noted, “[t]he only evidence

with regard to the alleged burglary came from two sources: (1) defendant’s own

confession . . . and (2) the testimony of Sherry Atwell, the owner of the house and

daughter of the victim[.]” Id. at 322, 536 S.E.2d at 346. In Cunningham’s confession,

he did not admit “he broke down or otherwise opened any of the exterior or interior

doors.” Id. at 322, 536 S.E.2d at 347. Indeed, the confession stated another person

with Cunningham kicked the door and opened it. Id. at 322, 536 S.E.2d at 346. The

State asked us to accept certain portions of Cunningham’s confession—that he

carried a shotgun—and reject the portions of his confession implicating another for

the breaking. Id. at 322, 536 S.E.2d at 347. The State also pointed to Atwell’s

testimony, but her testimony only supported constructive breaking, a theory upon

which the jury was not instructed. Id. at 324, 536 S.E.2d at 347-48. Accordingly, we

held that the State failed to present sufficient evidence of a “breaking” and vacated

Cunningham’s conviction. Id. at 321-22, 324, 536 S.E.2d at 345, 347-48.

      In contrast, the State argues that the instant case is more analogous to

Ethridge, 168 N.C. App. 359, 607 S.E.2d 325. In Ethridge, the defendant argued the

trial court erred by denying his motion to dismiss a number of charges. Id. at 362,

607 S.E.2d at 327. Ethridge alleged “the evidence was insufficient to prove [he] was

the perpetrator.” Id. We disagreed and pointed to the following evidence:

             A vehicle registered to [Ethridge] and identified by others
             as belonging to [Ethridge], was seen at the crime scene.


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             The vehicle, with its tailgate open, was pulled up to the
             door of the house. A coffee table was seen in the car.
             [Ethridge] was placed . . . next door to the crime scene on
             the day the offenses occurred.

Id.

      Here, Melvin was not at her apartment the day of the robbery. A neighbor,

McKoy, saw a vehicle backed up to the victim’s patio door. Neighbors told Officer

Tate they saw two males “going in and out of the apartment” while outside smoking.

One of the men, Defendant, was recognized by neighbors because of his relationship

to Melvin.   When one of the neighbors, Wilson, spoke to Defendant, he seemed

“startled and anxious.” Melvin told the officer that only three people knew she was

going to be out of town—one of whom was Defendant.

      Lofty saw Defendant and another male in the following places: by the victim’s

apartment, on the front porch, right in front of the apartment door, and then in the

parking lot, next to a vehicle. The vehicle “kept coming and going.” At one point,

Lofty saw Defendant in the driver’s side of the vehicle. Defendant “got startled[,]”

the two slammed the trunk, and then they left. At some point, Lofty saw a television

in the trunk. Lofty saw the other male “standing there” and Defendant would be

“gone” at some points. That night, Lofty also heard a lot of noise (“banging on the

walls”). The next morning, Lofty’s daughter noticed the victim’s apartment door was

open and crime scene investigators confirmed that the door had been pried open.




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      Wilson also testified that she saw Defendant and another man parked with a

car backed up to the victim’s door. She saw “stuff” in the trunk of the car. She

testified: “It caught them off guard when we walked out on the porch and they closed

the trunk very, very fast. The sunroof was open, [Defendant] was in the driver’s seat,

the other guy was in the passenger and they took off and went down the road.” Wilson

saw the vehicle come and go at least four, and maybe five, times.

      When the victim called Defendant to ask about that night, he told her he was

out of town—a fact contradicted by the several witnesses’ testimonies. When Melvin

returned home, her 55-inch television was missing—a television so big she said it

would take more than one person to carry out.

      We conclude there was sufficient evidence Defendant was the perpetrator of

the crimes and individually committed the crimes. The case sub judice more closely

aligns with Ethridge than with Cunningham. Witnesses saw Defendant driving a car

that came to the victim’s apartment at least four times. At times, Defendant was

standing by the car, and at other times, witnesses did not see Defendant. Defendant

did not have permission to be there. A witness saw a television in the trunk of the

car Defendant drove. Televisions were stolen from the victim’s apartment. When

spoken to, Defendant acted “startled[,]” slammed the trunk, which contained the

television, and drove away. Considering the evidence in the light most favorable to

the State and giving the State the benefit of every reasonable inference, there is



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sufficient evidence that Defendant perpetrated the crimes. As such, we hold the trial

court did not err in denying Defendant’s motions to dismiss.

B. Jury Instructions

      Next, Defendant argues the trial court plainly erred in its jury instructions on

felonious larceny.

      “[A]n issue that was not preserved by objection noted at trial . . . may be made

the basis of an issue presented on appeal when the judicial action question is

specifically and distinctly contended to amount to plain error.” N.C. R. App. P.

10(a)(4) (2017).     “[T]he plain error standard of review applies on appeal to

unpreserved instructional or evidentiary error.” State v. Lawrence, 365 N.C. 506,

518, 723 S.E.2d 326, 334 (2012). Plain error exists when: (1) there is an error; (2)

that is plain; (3) that affects a substantial right; (4) that must seriously affect the

fairness, integrity or public reputation of judicial proceedings. Id. at 515-16, 723

S.E.2d at 332-33. “[P]lain error review should be used sparingly, only in exceptional

circumstances, to reverse criminal convictions on the basis of unpreserved error[.]”

Id. at 517, 723 S.E.2d at 333.

      As discussed supra, Defendant argues the State presented insufficient

evidence that he personally took property worth over $1,000. However, we find that

the State produced sufficient evidence Defendant personally committed these crimes,

and that he took property in excess of $1,000. As the trial court did not err in its jury



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                                   Opinion of the Court



instructions on felonious larceny, we need not review whether the alleged error

amounted to plain error.

                                     Conclusion

      Defendant received a fair trial, free of prejudicial error.

      NO ERROR.

      Chief Judge McGEE and Judge ELMORE concur.




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