An unpublished opinion of the North Carolina Court of Appeals does not constitute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                      A.   Fisher,
      Assistant Attorney General, for the State.

      Daniel F. Read for defendant-appellant.


      DAVIS, Judge.


      Anthony      John    Sexton      (“Defendant”)       appeals      from     his

conviction for felonious larceny of a dog.                On appeal, he argues

that the trial court erred by (1) denying his motion to dismiss

the   charge    against     him    for   insufficient      evidence;       and   (2)

allowing    testimony      regarding     his   temper    and    use   of    profane

language, his conduct towards one of the State’s witnesses, his

physical appearance at the time of the subject incident, and his
                                           -2-


conduct 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:            On 16 June 2012, Linwood Marshall (“Mr.

Marshall”),      Denise       Marshall         (“Mrs.         Marshall”),         and   their

children     left   for   a     weekend    trip         to    the   beach    to     celebrate

Father’s Day.          The Marshalls left their dog, Malibu, at their

home in Youngsville, North Carolina, having previously arranged

for   Mrs.    Marshall’s      mother      to    visit        the    house    and    care    for

Malibu.      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       was

missing, Mr. Marshall searched the neighborhood for the dog.                                 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    (“Mr.    Aleksic”)          —   who    was    staying       with    his

girlfriend,     Charlene      Dossett,         in   the      residence       next    door    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. . . .
                                            -3-


I’m going to take care of this f——ing sh—t once and for all.”

       Approximately        one     month     earlier,          an     altercation          had

occurred    between       Mrs.    Marshall        and    Defendant       when      his   dogs

chased her while she was walking Malibu.                             When Mrs. Marshall

confronted       Defendant        about     his     dogs’       behavior,          Defendant

responded: “[M]y dogs?             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    to    meet     Mr.    Marshall      at     his    home     regarding      a

missing    dog.          After    Deputy     Simmons         arrived,        Mr.    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
                                          -4-


twenty minutes, Defendant continued to follow Mr. Aleksic while

making “obscene gestures, giving [him] the finger . . . [and]

riding [his] bumper.”           Mr. Aleksic called the Highway Patrol and

was   instructed     to    turn    on    his    four-way    flashers.        Once   Mr.

Aleksic did so, Defendant stopped following him.                           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. § 14-

81(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      Defendant     on     supervised

probation for a period of 24 months.                    Defendant gave notice of

appeal in open court.

                                        Analysis

I. Denial of Motion to Dismiss

      Defendant’s       first     argument      on   appeal   is    that    the   trial

court   erred   in      denying    his    motion      to   dismiss    based    on   the

insufficiency      of     the   evidence.            Defendant     argues    that   the

evidence presented at trial raised only a “mere suspicion” of

his guilt of the larceny of Malibu such that dismissal of the
                                -5-


charge 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
                                            -6-


fairly logical and legitimate deduction, it is for the jury to

say   whether      it     is   convinced     beyond   a   reasonable     doubt    of

defendant’s guilt.”            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,     562    S.E.2d      528,   534     (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
                                       -7-


the   owner    of   the   property”    (citation      omitted)).      The   State

offered   circumstantial         evidence      of    Defendant’s     intent     to

permanently     deprive    the     Marshalls    of   their   dog    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          Concerning      Defendant’s    Conduct    and
      Physical Appearance
                                       -8-


      Defendant 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   day    after    Malibu     was     discovered    to    be    missing.

Defendant    argues that although “individually these irrelevant

character attacks and arguments may not have risen to the level

of   reversible     error,     taken   together      they    served    to    deprive

[Defendant] of a fair trial.”              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     that   the    defendant       was   guilty.”          State   v.

Lawrence,    365    N.C.     506,   518,     723    S.E.2d      326,   334     (2012)

(citation and quotation marks omitted).                “[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
                                      -9-


evidentiary    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.       State v. Cummings, 352 N.C. 600, 636,

536   S.E.2d   36,   61   (2000),   cert.   denied,   532    U.S.   997,     149

L.Ed.2d 641 (2001).       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.
                                -10-


denied, 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).
