               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-863

                                Filed: 18 August 2020

Cleveland County, No. 18 CRS 50333

STATE OF NORTH CAROLINA

              v.

MICHAEL EUGENE WRIGHT, Defendant.


        Appeal by defendant from judgment entered 26 April 2019 by Judge Carla

Archie in Cleveland County Superior Court. Heard in the Court of Appeals 1 April

2020.


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

        Mary McCullers Reece for defendant-appellant.


        YOUNG, Judge.


        Where the State presented sufficient evidence to permit the jury to determine

the value of stolen goods, the trial court did not err in denying defendant’s motion to

dismiss. Where the jury did not consider alternative theories of guilt not permitted

by the indictment, defendant cannot show prejudice, and the trial court did not

commit plain error in its jury instruction. Where the trial court sentenced defendant

on both the charges of felonious larceny and felonious possession of the goods stolen

during the larceny, the trial court erred. We vacate the judgment and remand for

arrest of one conviction and resentencing.
                                  STATE V. WRIGHT

                                  Opinion of the Court



                       I. Factual and Procedural Background

      In December of 2017, Jeff Crotts, owner of Knob Creek Orchards, discovered

that a 120-gallon propane tank was missing from his property, and reported it to the

sheriff’s office. On 25 January 2018, Amy Lail, a sergeant with the Cleveland County

Sheriff’s Office (Sgt. Lail), received information that the missing tank was located on

the property of Peggy Hudson Canipe (Canipe), fiancée of Michael Wright

(defendant), and that defendant was a suspect in the theft. Shortly after Sgt. Lail

arrived on Canipe’s property, defendant himself arrived.          Sgt. Lail informed

defendant that the tank was stolen, and defendant responded that he had purchased

it “many miles” away, and claimed he was able to load the tank into the back of his

Chevy Blazer, which Sgt. Lail found “absurd.” Sgt. Lail also noted that the tank had

been spray-painted, and that the same paint color had been used “in other locations

around the house[.]” Nelson Speagle (Speagle), a propane manager with Carolina

Energies who serviced the propane tanks at Knob Creek Orchards, was able to

identify this tank as the stolen tank by its serial number, and testified that it was

valued at “roughly $1,330[.]”

      The Cleveland County Grand Jury indicted defendant for felonious larceny and

felonious possession of stolen goods, namely a “240lb propane tank” worth $2,000. At

the close of the State’s evidence, the State moved to amend the indictment to remove

the size of the propane tank, and indicate that the value of the propane tank was in



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                                  STATE V. WRIGHT

                                  Opinion of the Court



excess of $1,000. Defendant did not object, and the trial court allowed the motion. At

the close of all the evidence, defendant moved to dismiss based upon insufficient

evidence. The trial court denied this motion.

      The jury returned verdicts finding defendant guilty of felonious larceny and

felonious possession of stolen goods. The trial court consolidated the charges for

judgment, and sentenced defendant to a minimum of 20 months and a maximum of

36 months in the custody of the North Carolina Department of Adult Correction.

      Defendant appeals.

                                II. Motion to Dismiss

      In his first argument, defendant contends that the trial court erred in denying

his motion to dismiss. We disagree.

                               A. Standard of Review

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘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 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert.

denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).



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                                   STATE V. WRIGHT

                                   Opinion of the Court



      “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).

                                      B. Analysis

      The charges of both felonious larceny and felonious possession of stolen goods

require, as an essential element of the charge, that the value of the stolen property

exceed $1,000. N.C. Gen. Stat. § 14-72(a) (2019). On appeal, however, defendant

contends that there was insufficient evidence before the trial court that the stolen

tank was worth more than $1,000.

      In support of his argument, defendant notes that, when asked to value the

tank, Speagle stated that enough propane to fill the tank would be worth $300, and

that the two regulators that accompany the tank would be worth $90 each.

Combining the costs of the regulators, the fuel, and the tank, Speagle determined

that the total value was “probably at $1,300, 1,330-something.” However, defendant

further notes that, when asked how much fuel was left in the tank, Speagle responded

that he didn’t “have a clue how much.” Moreover, defendant was indicted for stealing

a propane tank, not for stealing a propane tank and two regulators. Defendant argues

that, removing the $300 for the cost of fuel, plus $180 for the two regulators, Speagle’s



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                                   STATE V. WRIGHT

                                   Opinion of the Court



valuation of roughly $1,300 drops below the $1,000 threshold necessary for a felony

charge. As a result, defendant contends that this testimony was insufficient to

support convictions for either felonious larceny or felonious possession of stolen goods.

      However, the State “is not required to produce ‘direct evidence of ... value’ to

support the conclusion that the stolen property was worth over $1,000.00, provided

that the jury is not left to ‘speculate as to the value’ of the item.” State v. Davis, 198

N.C. App. 146, 151-52, 678 S.E.2d 709, 714 (2009) (quoting State v. Holland, 318 N.C.

602, 610, 350 S.E.2d 56, 61 (1986), overruled on other grounds, State v. Childress, 321

N.C. 226,, 362 S.E.2d 263 (1987)). Rather, the State is merely required to present

some competent evidence of the fair market value of the stolen property, which the

jury may then consider.

      In Davis, the State presented evidence that a stolen Panasonic DVD player

had been purchased for over $1,300, that it was in substantially the same condition

as when purchased, and that the only Panasonic dealer in the area marketed the

same DVD player for over $1,300. This Court held that, viewed in the light most

favorable to the State, the reasonable selling price of the DVD player, at the time and

place of the theft and in the condition in which it was when stolen – the measure of

fair market value – was over $1,300. Id. at 152, 678 S.E.2d at 714. The defendant

argued that the DVD player could not be worth over $1,000 because it was not

functional without its electronic brain, but this Court held that argument failed,



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                                  STATE V. WRIGHT

                                  Opinion of the Court



noting that “[t]he State did not have to prove that a DVD player without its brain

was worth over $1,000.00, as long as the State provided some evidentiary basis that

placed the jury's determination of its value beyond ‘speculat[ion].’ ” Davis, 198 N.C.

App. at 152, 678 S.E.2d at 714 (quoting Holland, 318 N.C. at 610, 350 S.E.2d at 61).

We held that the issue of whether the DVD player, without its brain module, was

nonetheless worth $1,000 was “properly before the jury for resolution.” Id. at 153,

678 S.E.2d at 714; see also State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595

(1992) (holding that “[a]ny contradictions or discrepancies in the evidence are for the

jury to resolve and do not warrant dismissal”).

      In the instant case, the State presented evidence, namely the testimony of

Speagle, that the stolen propane tank was worth $1,300, more than the requisite

$1,000 threshold. Whether the absence of fuel or regulators put that valuation below

the $1,000 threshold was a question “properly before the jury for resolution,” and did

not warrant dismissal. In viewing the evidence in the light most favorable to the

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

presented sufficient evidence of the value of the propane tank to take the issue beyond

“speculation” and permit its consideration by the jury. Accordingly, we hold that the

trial court did not err in denying defendant’s motion to dismiss.

                                 III. Jury Instruction




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                                   STATE V. WRIGHT

                                   Opinion of the Court



      In his second argument, defendant contends that the trial court committed

plain error in its jury instructions. We disagree.

                                A. Standard of Review

      “In criminal cases, an issue that was not preserved by objection noted at trial

and that is not deemed preserved by rule or law without any such action nevertheless

may be made the basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to plain error.” N.C.R.

App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007),

cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008).

      “Under the plain error rule, defendant must convince this Court not only that

there was error, but that absent the error, the jury probably would have reached a

different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

                                      B. Analysis

      The trial court, in its jury instructions, informed the jury that it could find

defendant guilty of felonious larceny if it found that defendant “took and carried away

another person’s property[,]” and that said property “was worth more than $1,000[.]”

This instruction was lifted verbatim from the North Carolina Pattern Jury

Instructions, N.C.P.I.-Crim 216.10, with the consent of the parties.        On appeal,

defendant contends that this instruction improperly permitted the jury to find

defendant guilty under an alternate theory not charged in the indictment. Because



                                            7
                                  STATE V. WRIGHT

                                  Opinion of the Court



defendant failed to object to this instruction at trial, we review this argument for

plain error.

      Defendant was initially indicted for the theft and possession of “a 240lb

propane tank.” Subsequently, the State moved to amend the indictment to remove

the size of the propane tank, and the trial court allowed the motion.        However,

defendant notes that he was not charged with taking any other property aside from

the tank itself, and contends that the trial court’s overly broad instruction – that

defendant carried away “another person’s property” instead of “a propane tank” –

permitted the jury to find him guilty of felonious larceny based on the value of

additional items not included in the indictment. Indeed, our Supreme Court has held

that, where instructions permit the jury to convict on grounds other than those

charged in the indictment, those instructions are error, and also plain error. State v.

Tucker, 317 N.C. 532, 536, 346 S.E.2d 417, 420 (1986).

      Notwithstanding this rule, however, defendant fails to show that he was in fact

prejudiced by this instruction, in that the jury would otherwise have reached a

different result. Defendant contends that, had the jury been “specifically instructed

to consider the value of the propane tank, they would not have found that the tank

alone was worth more than $1,000,” and that absent the over-broad instruction, the

jury could not have found defendant guilty of felonious larceny. However, as we have

held above, this assertion is inaccurate. There was sufficient evidence for the jury to



                                           8
                                   STATE V. WRIGHT

                                   Opinion of the Court



find the value of the propane tank to be in excess of $1,000. Defendant’s mere

assertion that there was not sufficient evidence of value does not, therefore, establish

prejudice. Nor does defendant suggest that he was in fact found guilty of the theft of

any property aside from the tank itself; he merely alleges that the tank did not

possess the requisite value. Indeed, in reviewing the evidence before the trial court,

we cannot find any reason to assume that the jury based its verdict on any

consideration other than the value of the tank alone.

      Accordingly, while we recognize that the better practice may have been to

designate the specific property taken, we do not agree that defendant has shown that

the jury considered, or was permitted to consider, an improper theory based on the

instruction given. We therefore hold that the trial court did not err in instructing the

jury, pursuant to the Pattern Jury Instructions, that defendant could be found guilty

of stealing “property” as opposed to some more specific term.

                                    IV. Sentencing

      In his third argument, defendant contends that the trial court erred in

sentencing him for both larceny and possession of stolen property. We agree.

                                A. Standard of Review

      “Whether multiple punishments were imposed contrary to legislative intent

presents a question of law, reviewed de novo by this Court.” State v. Hendricksen,




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                                    STATE V. WRIGHT

                                    Opinion of the Court



257 N.C. App. 345, 809 S.E.2d 391, 393, review denied, 371 N.C. 114, 812 S.E.2d 856

(2018).

                                       B. Analysis

       Defendant contends, and the State concedes, that it is a violation of legislative

intent to convict a defendant of both stealing property and possessing that same

property. Indeed, our Supreme Court has held that, while “[l]arceny and possession

of property stolen in the larceny are separate crimes[,]” it is inappropriate for the trial

court to punish an individual for both when the same property is involved. State v.

Perry, 305 N.C. 225, 234, 287 S.E.2d 810, 815 (1982), overruled on other grounds by

State v. Mumford, 364 N.C. 394, 699 S.E.2d 911 (2010). Specifically, the Court held

that “the Legislature did not intend to punish an individual for larceny of property

and the possession of the same property which he stole.” Id. at 235, 287 S.E.2d at

816. When the trial court enters judgment on both larceny and the possession of

property stolen in the larceny, our remedy is to vacate the conviction for the latter.

See State v. Stroud, 252 N.C. App. 200, 797 S.E.2d 34 (2017). Because the trial court

consolidated the two charges for judgment, we therefore vacate the judgment entirely,

and remand this matter to the trial court, with instructions to arrest the charge of

possession of stolen property and enter judgment only upon the charge of larceny,

and to resentence defendant accordingly.




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                             STATE V. WRIGHT

                             Opinion of the Court



    NO ERROR IN PART, NO PLAIN ERROR IN PART, VACATED AND

REMANDED IN PART.

    Judge COLLINS concurs in separate opinion.

    Judge MURPHY concurs in part and dissents in part in separate opinion.




                                      2
 No. COA19-863 – State v. Wright


      COLLINS, Judge, concurring.


      I concur in the majority opinion. I write separately to add additional analysis

to the discussion of the second issue involving the jury instruction.

      The trial court, in its jury instructions, informed the jury that it could find

defendant guilty of felonious larceny if it found that defendant “took and carried away

another person’s property[,]” and that said property “was worth more than $1,000[.]”

On appeal, defendant contends that this instruction was plainly erroneous as it

improperly permitted the jury to find defendant guilty under an alternate theory not

charged in the indictment.

      “It is the rule in this State that the trial court should not give instructions

which present to the jury possible theories of conviction which are . . . not charged in

the bill of indictment, and that where the indictment for a crime alleges a theory of

the crime, the State is held to proof of that theory and the jury is only allowed to

convict on that theory.” State v. Litchford, 78 N.C. App. 722, 727, 338 S.E.2d 575,

578 (1986) (internal quotation marks and citation omitted).

      Here, Defendant was initially indicted for the theft and possession of “[a]

240LB propane tank.” Subsequently, the State moved to amend the indictment to

remove the size of the propane tank, and the trial court allowed the motion. The

evidence presented a trial shows that Speagle, a propane manager with Carolina

Energies, identified the propane tank by its serial number. Speagle testified that the
                                  STATE V. WRIGHT

                                COLLINS, J., concurring



propane tank “had been sprayed over, camouflaged a little bit” and he called his office

to confirm that the propane tank’s serial number matched the “serial number

connected to” the propane tank stolen from Crotts’ labor camp.          Speagle then

explained how he recovered and removed the tank from the property and that “the

value of the tank” was approximately $1330. Through Speagle’s testimony, the State

established that the propane tank stolen from Crotts was the exact propane tank

recovered from the Canipe’s property. The State provided no evidence of any other

property that Defendant was alleged to have taken.

      While “[t]echnically, it would have been better for the trial court to have

charged the jury that it had to find” that Defendant took and carried away a propane

tank, “[s]uch a misstatement by the trial court . . . does not amount to submitting to

the jury a possible theory of conviction which is neither supported by the evidence

nor the indictment.” Id. at 728, 338 S.E.2d at 579. There is no fatal variance here

where both the indictment and the evidence show that Defendant stole a propane

tank, the trial court charged the jury that it could find Defendant guilty if he “took

and carried away another person’s property,” and there is no evidence from which the

jury could determine that Defendant had stolen property other than a propane tank.

See State v. Pringle, 204 N.C. App. 562, 567, 694 S.E.2d 505, 508 (2010) (determining

“no error, much less plain error,” where “the trial court’s instruction was in accord

with the material allegations in the indictment and the evidence presented at trial”).



                                          2
                                   STATE V. WRIGHT

                                 COLLINS, J., concurring



We discern no plain error in the trial court’s instructions on felonious larceny because

it cannot be said that the instructional mistake “had a probable impact on the jury’s

finding of guilt.” State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983)

(citation omitted).




                                           2
         No. COA19-863 – State v. Wright




         MURPHY, Judge, concurring in part and dissenting in part.


         While I concur fully with the improper sentencing under both larceny and

possession of stolen property issue, I concur in outcome only as to the jury instruction

issue.    However, I respectfully dissent as to the Defendant’s motion to dismiss.

According to the language of the indictment, the jury should only have considered the

value of the propane tank in determining if Defendant stole property worth more than

$1,000.00, elevating the larceny from a misdemeanor to a felony. Therefore, the

evidence of the propane tank’s value presented by the State was insufficient to

support a conviction of felonious larceny because there was no testimony as to the

value of the propane tank alone and the only testimony on value was in reference to

the combined value of the propane tank, an unknown amount of propane gas within

the tank, the regulator attached to it, and the regulator attached to the building.

Further, any determination by the jury as to the value of the propane tank alone

would be speculative due to the impossibility of subtracting the value of an unknown

amount of propane gas from the combined value to deduce the value of the propane

tank.

                                       BACKGROUND

         The indictment states, “[t]he jurors for the State upon their oath present that

on or about the date of offense shown and in the county named above [Defendant]
                                       STATE V. WRIGHT

                       Murphy, J., concurring in part and dissenting in part




named above unlawfully, willfully, and feloniously did steal, take and carry away A

240LB PROPANE TANK[.]”          The indictment was later properly amended to “a

propane tank with a value in excess of a thousand dollars.”

      At trial, the value of the propane tank was described in many different ways,

each time by Nelson Speagle (“Speagle”). Speagle worked as a propane manager for

Carolina Energies with almost 19 years of experience at the time of his testimony.

Speagle, on behalf of Carolina Energies, had provided propane gas, regulators, and

propane tanks to the victim in this case. Speagle estimated the value of the tanks

three times, in the following ways:

             [State:] Are you familiar with how much these tanks are
             worth?

             [Speagle:] Right -- With the tank and the gas and
             regulators, it’s roughly $1,330, somewhere in that ballpark.

             [State:] Are you talking about the tanks pertaining to [the
             victim]?

             [Speagle:] Yes.

             ...

             [State:] And based on your training and experience and
             your job duties, were you able to give -- or were you able to
             come up with a fair market value of how much this tank
             was?

             [Speagle:] Just the tank?



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                                 STATE V. WRIGHT

                 Murphy, J., concurring in part and dissenting in part




      [State:] No. Total. Everything in it.

      [Speagle:] Total?       You're probably at $1,300, 1,330
      something.

      [State:] And that’s including the regulators that are on the
      tank?

      [Speagle:] That’s the tank, the regulators, and the fuel.

      ...

      [State:] So just to be clear, it’s your opinion that on the date
      of January 25th the value of the tank that you received was
      approximately $1,330?

      [Speagle:] Yeah.

(Emphasis added). Regarding the regulators and their value, Speagle testified:

      [State:] Okay. And when you noticed this tank, did you
      notice that the regulators were with it?

      [Speagle:] One was and the other wasn’t. It was laying, I
      think, in the yard or on the ground there.

      [State:] And normally are these regulators attached to the
      propane tank?

      [Speagle:] We’ve got one that the regulator attaches to the
      tank and one regulator that attaches to the house or
      structure, wherever we put the tank.

      [State:] And how much would a regulator cost?

      [Speagle:] Roughly $90.




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                                             STATE V. WRIGHT

                            Murphy, J., concurring in part and dissenting in part




        Speagle also testified that he did not know how much propane gas was in the

propane tank at the time he retrieved it, and the last time he checked the tank, at an

unknown date, it was full. In terms of the value of the propane gas, he testified

                [State:] So would you say that the gas was about $500
                worth of gas in this particular tank, or are you just saying
                that’s –

                [Speagle:] The gas that was in it fits 96 gallons. You’re
                looking at roughly $300 for gas.

        At the close of all evidence, Defendant moved to dismiss all charges, and the

trial court denied the motion. Defendant was found guilty of felonious larceny and

felonious possession of stolen goods. This Dissent focuses on Defendant’s argument

that “[t]he trial court erred in failing to dismiss the charges where the evidence of

value was insufficient to support convictions for felonious larceny and felonious

possession of stolen goods.”

                                            ANALYSIS

        Although this Dissent focuses only on the issue of whether the State presented

sufficient evidence to support a value of more than $1,000.00 justifying a charge of

felonious larceny,1 it is important to clarify that Defendant’s indictment includes only




        1 While Defendant was also found guilty of felonious possession of stolen goods, I will focus on
the conviction of felonious larceny because the analysis applies with equal force to both charges
because both charges were based on the same evidence and I agree with the parties and the Majority
that it was improper to sentence Defendant to both possession of stolen goods and larceny.

                                                       4
                                         STATE V. WRIGHT

                         Murphy, J., concurring in part and dissenting in part




the “propane tank.”      The evidence at trial discussed the combined value of the

propane tank, propane gas, and regulators, the value of the regulators, and what the

value of the propane gas could be. However, no evidence at trial ever valued the

propane tank alone, nor can that value be deduced from the evidence presented at

trial.

                                   A. Larceny Indictments

         “Generally, the same degree of certainty must be used to describe the goods in

indictments for obtaining property by false pretenses as in indictments for larceny.”

State v. Ricks, 244 N.C. App. 742, 752, 781 S.E.2d 637, 643 (2016) (citing State v.

Reese, 83 N.C. 637, 639 (1880)). “The principle that the item obtained in a false

pretense crime and the thing stolen in larceny must be described with the same

degree of certainty was reaffirmed in 1915. . . . The item must be described with

‘reasonable certainty’ and ‘by the name or term usually employed to describe it.’” Id.

at 752, 781 S.E.2d at 644 (quoting State v. Gibson, 169 N.C. 318, 85 S.E. 7, 8 (1915)).

This principle was once more reaffirmed in 2014 when our Supreme Court stated

“[a]dditionally, ‘it is the general rule that the thing obtained by the false pretense

must be described with reasonable certainty, and by the name or term usually

employed to describe it.’” State v. Jones, 367 N.C. 299, 307, 758 S.E.2d 345, 351 (2014)

(quoting Gibson, 169 N.C. at 320, 85 S.E. at 8) (internal alterations omitted).



                                                  5
                                       STATE V. WRIGHT

                       Murphy, J., concurring in part and dissenting in part




      Applying the same indictment rules regarding the description of goods to

larceny and obtaining property by false pretenses, I conclude that when describing

the stolen item in indictments for larceny, the item “must be described with

reasonable certainty and by the name or term usually employed to describe it.” Ricks,

244 N.C. App. at 752, 781 S.E.2d at 644 (internal marks and citations omitted). In

this case, the indictment only stated “a propane tank.” According to our precedent,

“propane tank” must refer only to the object that it names or usually describes. Id.

Obviously, this includes the propane tank in this case. However, nothing in the

indictment describes with reasonable certainty the regulators, or the propane gas

within the propane tank. Indeed, the term that would normally refer to these items

is not “propane tank.” In fact, the only terms ever used by the State, the victim in

this case, Jeff Crotts (“Crotts”), Sergeant Amy Lail, and an expert in the field,

Speagle, to refer to the regulators were “regulator,” or “regulators.” The only terms

used by the State, Crotts, Speagle, and Defense Counsel to refer to the propane gas

were “gas,” “fuel,” and “propane.” Also, throughout the Record there are distinctions

made between the tank, the regulators, and the propane gas. The usage of these

words throughout the trial demonstrates the usual terms that describe regulators

and propane gas are “regulator,” and “propane,” “gas,” or “fuel” respectively.




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                                              STATE V. WRIGHT

                             Murphy, J., concurring in part and dissenting in part




        As a result, the indictment did not charge Defendant with larceny of the two

regulators attached to the propane tank or the propane gas within the tank. Instead,

it simply charged Defendant with larceny of the propane tank.2                          Based on the

indictment, the jury should only have considered the value of the propane tank in

determining if the value of the stolen property exceeded $1,000.00, making Defendant

guilty of felonious larceny.         N.C.G.S. § 14-72(a) (2019).            Based on the evidence

presented at trial, if we were to calculate the value of the propane tank alone, then

we would subtract the value of the two regulators, worth $90.00 each, and the value

of the propane gas, worth somewhere between $0.01 and $300.00, from the combined

value testified to by Speagle, $1,330.00. This is the same as subtracting somewhere

between $0.01 and $300.00 from $1,150.00, which would leave us with a value for the

propane tank alone being somewhere between $850.00 and $1,149.99. However, this

is not the end of the inquiry as to the validity of Defendant’s convictions.

                                       B. The Motion to Dismiss




        2 Making legal distinctions between an object and an item attached to it is not novel. Our
Supreme Court similarly distinguished between an item and its attachment in State v. Greene, 289
N.C. 578, 223 S.E.2d 365, (1976). In Greene, our Supreme Court held that, although the defendant
was found in possession of a set of disk boggs that had been attached to a tractor, the doctrine of recent
possession did not extend to the tractor that the disk boggs had been attached to in part because of its
ability to be removed from the tractor. Id. at 581-583, 223 S.E.2d at 367-369. Although the issue
before us is not governed by the doctrine of recent possession, Greene supports making a legal
distinction between an attachment and the item it was attached to. The logic underlying this
distinction is equally applicable to an object and its contents when those contents are typically removed
and replaced.

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                                       STATE V. WRIGHT

                       Murphy, J., concurring in part and dissenting in part




      1. Standard of Review

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

      2. General Principles

      Defendant argues that the trial court erred in not granting his motion to

dismiss for insufficient evidence. Specifically, he argues the State failed to present

sufficient evidence to establish the propane tank had a value exceeding $1,000.00 as

required in charges of felonious larceny and felonious possession of stolen goods.

N.C.G.S. § 14-72(a) (2019). No other element of the crime is challenged.

             Upon [D]efendant’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 [D]efendant’s being the
             perpetrator of such offense. If so, the motion is properly
             denied. . . .

             If the evidence is sufficient only to raise a suspicion or
             conjecture as to either the commission of the offense or the
             identity of the defendant as the perpetrator of it, the motion
             should be allowed. . . . This is true even though the
             suspicion so aroused by the evidence is strong. . . .

             The evidence is to be considered in the light most favorable
             to the State; the State is entitled to every reasonable
             intendment and every reasonable inference to be drawn
             therefrom; contradictions and discrepancies are for the
             jury to resolve and do not warrant dismissal; and all of the
             evidence actually admitted, whether competent or



                                                8
                                        STATE V. WRIGHT

                        Murphy, J., concurring in part and dissenting in part




             incompetent, which is favorable to the State is to be
             considered by the court in ruling on the motion. . . .

             The test of the sufficiency of the evidence to withstand the
             motion is the same whether the evidence is direct,
             circumstantial or both. . . . When the motion calls into
             question the sufficiency of circumstantial evidence, the
             question for the Court is whether a reasonable inference of
             [D]efendant’s guilt may be drawn from the circumstances.
             If so, it is for the jury to decide whether the facts, taken
             singly or in combination, satisfy them beyond a reasonable
             doubt that the defendant is actually guilty.


      State v. Powell, 299 N.C. 95, 98-99, 261 S.E.2d 114, 117 (1980) (internal

citations and marks omitted) (emphasis added).

      Here, the only relevant essential element of felonious larceny relates to the

value of the property stolen. “Larceny of goods of the value of more than one thousand

dollars ($1,000[.00]) is a Class H felony.” N.C.G.S. § 14-72(a) (2019).

      3. State v. Davis and State v. Parker

      Relying on State v. Davis, the Majority holds that the State presented sufficient

evidence of value to withstand Defendant’s motion to dismiss. State v. Davis, 198

N.C. App. 146, 678 S.E.2d 709 (2009). The Majority relies on Davis to reach the

conclusion that Defendant’s motion to dismiss was properly denied because “the State

presented evidence, namely the testimony of Speagle, that the stolen propane tank

was worth $1,300[.00], more than the requisite $1,000[.00] threshold. Whether the

absence of fuel or regulators put that valuation below the $1,000[.00] threshold was

                                                 9
                                              STATE V. WRIGHT

                            Murphy, J., concurring in part and dissenting in part




a question ‘properly before the jury for resolution,’ and did not warrant dismissal.”

Supra at 6. The Majority bases this conclusion on the proposition from Davis that

the State “is not required to produce ‘direct evidence of . . . value,’ provided that the

jury is not left to ‘speculate as to the value’ of the item.” Id. at 151-52, 678 S.E.2d at

714 (quoting State v. Holland, 318 N.C. 602, 610, 350 S.E.2d 56, 61 (1986) overruled

on other grounds, State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987))). The

Majority’s reliance on Davis is misplaced.3


        3 Our Supreme Court will not be bound by Davis. State v. Alonzo, 373 N.C. 437, 440, 838

S.E.2d 354, 356 (2020) (“We are not bound by the Court of Appeals’ decision in Lark”). Therefore,
while not critical to the proper outcome, I include this observation of Davis insofar as it misapplied
Holland and our prior decision in Parker. In Davis, we held “the jury could have reasonably concluded
that the value of the DVD player deck [the] defendant possessed was worth over $1,000.00 based on
[the vendor’s] testimony that the entire system retails in his store for over $1,300.00.” Davis, 198 N.C.
App. at 152, 675 S.E.2d at 714. We even went on to say “the jury could have reasonably concluded
that the DVD player was worth $1,300.00 and was merely missing a necessary component, similar to
a car missing its engine or a watch missing its batteries.” Id. at 153, 678 S.E.2d at 715. It is unclear
to me how a jury could do anything other than speculate as to the value of a used, non-functional half
of a two-part system if the only information it had before it regarding value was that a new, fully-
functional complete system was worth $1,300.00. Additionally, it is unclear how it could ever be
reasonable for a jury to find that the fair market value of a non-functioning item without its other
essential component could remain the same as the fully-functional item with both components. Davis
is even more clearly illogical when it is applied to what we claimed was similar to the facts of Davis—
a car missing its engine. Id. The Davis holding would suggest that it is reasonable for a jury to
conclude that a new car worth $25,000.00 was worth the same as a car in “like-new condition” that is
“merely . . . missing its engine.” Id. at 152-153, 678 S.E.2d at 714-715.

        Additionally, Davis holds that “[t]he State is not required to produce ‘direct evidence of . . .
value’ to support the conclusion that the stolen property was worth over $[]1,000.00, provided that the
jury is not left to ‘speculate as to the value’ of the item.” Id. at 151-152, 678 S.E.2d at 714, (quoting
Holland, 318 N.C. at 610, 350 S.E.2d at 61). This paraphrasing of Holland was not an accurate
representation of the cited language’s meaning. In context, the full language referred to is:

                Although the State offered no direct evidence of the Cordoba's value,
                there is in the record evidence tending to show that the victim owned



                                                       10
                                             STATE V. WRIGHT

                             Murphy, J., concurring in part and dissenting in part




       The Majority’s reliance on Davis is misplaced because the proposition cited to

support its conclusion that the State presented sufficient evidence, by its own terms,

does not apply here. That proposition is only appropriately applied when “the jury is

not left to ‘speculate as to the value’ of the item.” Id. (quoting Holland, 318 N.C. at

610, 350 S.E.2d at 61). This is precisely the situation we have here. To determine



               two automobiles and that the 1975 Chrysler Cordoba was his favorite
               one of which he took especially good care, always keeping it parked
               under a shed, and that a picture of this automobile was exhibited to
               the jury for the purpose of establishing the location of the automobile
               when discovered after its theft. The State contends that this evidence
               is sufficient to support the jury's finding that the automobile's value at
               the time of the theft exceeded four hundred dollars. We are not
               convinced and find that the substantiality of the evidence is
               insufficient for presentation of the issue of value to the jury. The jury
               may not speculate as to the value. Although the trial court properly
               instructed the jury as to the difference between misdemeanor and
               felony possession, the evidence was not such as would justify the jury
               in finding that the value of the Cordoba exceeded four hundred dollars.

       Holland, 318 N.C. at 610, 350 S.E.2d at 61 (emphasis added). In context, it is clear that our

Supreme Court in Holland was not holding “[t]he State is not required to produce ‘direct evidence of .

. . value’ to support the conclusion that the stolen property was worth over $[]1,000.00,” but was

instead simply rejecting the State’s argument that the indirect evidence presented was sufficient

evidence of value to justify submitting the issue to the jury. Davis, 198 N.C. App. at 151-152, 678

S.E.2d at 714. In fact, the first time such a reading of Holland occurred was in Davis. I would

encourage our Supreme Court to overrule Davis. Routten v. Routten, 843 S.E.2d 154, 158-159 (N.C.

Ct. App. 2020) (“However, the Moore court misapplied our decision in Petersen. . . . We also expressly

overrule Moore v. Moore”).


                                                      11
                                        STATE V. WRIGHT

                        Murphy, J., concurring in part and dissenting in part




the value of the propane tank, the jury would have to determine the value of the

propane gas within the propane tank when it was picked up by Speagle, and then

subtract it and the value of the regulators from $1,330.00. Since the regulators were

worth $180.00 and there was no evidence presented of how much propane gas was in

the propane tank, the jury necessarily had to speculate as to whether the propane

tank had a value as low as $850.00 or as high as $1,149.99. This is particularly

significant because to be convicted of felonious larceny the required value of the stolen

property must be greater than $1,000.00. The jury was asked to blindly guess how

much gas was in the tank to determine the value of the propane tank.

      Davis also inaccurately describes State v. Parker. Davis states that in Parker

“the State produced no evidence at all of the value of the stolen property.” Id. at 152,

678 S.E.2d at 714. Upon further reading of Parker, the State presented evidence

about the value of all of the victims’ stolen items, including those that were alleged

to be stolen by the defendant and some that were not, the resale value of some of the

items alleged to be stolen by the defendant, and the amount of money loaned to the

defendant when he traded stolen items with a pawn store. State v. Parker, 146 N.C.

App. 715, 716, 555 S.E.2d 609, 610 (2001). In Parker, when discussing Holland and

applying it to the facts of the case, we said:

             [O]ur Supreme Court vacated the defendant’s conviction
             for felonious possession of stolen property where the State


                                                 12
                           STATE V. WRIGHT

           Murphy, J., concurring in part and dissenting in part




failed to present direct evidence of the value of the stolen
vehicle. There, the State presented evidence tending to
show that the vehicle was a 1975 Chrysler Cordoba; it was
the owner’s favorite vehicle and he took especially good
care of it; and the owner always parked the vehicle under
a shed. [Citing Holland]. The State also introduced a
photograph of the vehicle.

The State maintained that such evidence was sufficient to
establish the value of the vehicle exceeded $400.00, the
statutory minimum applicable at that time. Id. The
Supreme Court rejected the argument, stating that “the
substantiality of the evidence is insufficient for
presentation of the issue of value to the jury. The jury may
not speculate as to the value.” Id. It concluded that such
evidence “was not such as would justify the jury in finding
that the value of the Cordoba exceeded four hundred
dollars.” Id. The court therefore vacated the defendant’s
conviction for felonious possession of stolen property and
remanded for pronouncement of a judgment of guilty of
misdemeanor possession of stolen property and for re-
sentencing. Id.

In this case, the State likewise failed to introduce sufficient
evidence of the value of the stolen goods in [the]
defendant’s possession. The trial court instructed the jury
that [the] defendant’s charge was based upon his
possession of “a Magnavox VCR, cameras, and
photography equipment.” Although Goodman testified
that the total estimated value of all stolen items was
$5,000.00, there is simply no evidence regarding the total
value of the items contained in the trial court’s charge. The
only evidence relating to these items was Hayes’ testimony
that she loaned [the] defendant $40.00 for a Magnavox
VCR based on her estimate that she could resell it for
$80.00, and Mitchell’s testimony that she loaned [the]
defendant $80.00 for two cameras and some photography
equipment. Such evidence is not sufficient evidence from


                                    13
                                       STATE V. WRIGHT

                       Murphy, J., concurring in part and dissenting in part




             which a jury could determine to any certainty the value of
             the VCR, cameras, and photography equipment. The jury
             must not be left to speculate about the value of these items.
             See Holland, 318 N.C. at 610, 350 S.E.2d at 61. We
             therefore vacate [the] defendant’s conviction for felonious
             possession of stolen property in 99CRS011124. We remand
             that matter to the trial court for entry of a judgment of
             guilty of misdemeanor possession of stolen property, and
             for re-sentencing accordingly.

      Id. at 717-718, 555 S.E.2d at 610-611 (emphasis added).

      Parker is controlling here, and, based on Parker, the trial court should have

granted Defendant’s motion to dismiss. In Parker, “[the d]efendant was charged with

[and convicted of] felonious possession of stolen property . . . [b]ased on his pawning

of [some of] the stolen goods.” Id. at 716, 555 S.E.2d at 610. The defendant challenged

the conviction for felonious possession of stolen goods and “argue[d] the State failed

to present evidence from which the jury could conclude the value of the items stolen

by [the] defendant was over $1,000.00.” Id. at 717, 555 S.E.2d at 610. At trial in

Parker, the State introduced evidence regarding the value of all items stolen from the

property owners; however, the defendant was only charged with having stolen some

of the missing property and “there [was] simply no evidence regarding the total value

of the items contained in the trial court’s charge.” Id. at 718, 555 S.E.2d at 611.

Although there was some testimony as to the value of the items the defendant was

charged with stealing, “[t]he only evidence relating to these items was [a witness’s]

testimony that she loaned [the] defendant $40.00 for a Magnavox VCR based on her

                                                14
                                        STATE V. WRIGHT

                        Murphy, J., concurring in part and dissenting in part




estimate that she could resell it for $80.00, and [another witness’s] testimony that

she loaned [the] defendant $80.00 for two cameras and some photography

equipment.”    Id.   Relying on Holland, we held that “[s]uch evidence [was] not

sufficient evidence from which a jury could determine to any certainty the value of

the [property the defendant was charged with stealing]. The jury must not be left to

speculate about the value of these items.” Id. (citing Holland, 318 N.C. at 610, 350

S.E.2d at 61). We then “vacate[d the] defendant’s conviction for felonious possession

of stolen property . . . [and] remand[ed] . . . for entry of a judgment of guilty of

misdemeanor possession of stolen property, and for re-sentencing accordingly.” Id.

(citing Holland, 318 N.C. at 610, 350 S.E.2d at 61).

        4. Application to These Facts

        Applying the general principles controlling motions to dismiss, and applying

Parker to this case, there was insufficient evidence of value to submit the issue to the

jury.   I would vacate Defendant’s conviction for felonious larceny and felonious

possession of stolen goods, and remand for entry of judgment of misdemeanor larceny

or possession of stolen goods and resentencing accordingly.

        a. The Combined Value of the Propane Tank, Propane Gas, and Two

Regulators




                                                 15
                                           STATE V. WRIGHT

                           Murphy, J., concurring in part and dissenting in part




       In the light most favorable to the State, the value of the propane tank, the two

regulators, and any propane gas within the tank was $1,330.00. Speagle provided an

estimate of the value of these items three times. Although Speagle provided a range

of values from $1,300.00-$1,330.00 the second time he estimated the combined value

of these three items, his initial and ultimate valuations were that these items

together were worth $1,330.00. Viewing this evidence in the light most favorable to

the State, we must take the higher values given as opposed to the lower values,

leaving us with $1,330.00 as the combined value of the propane tank, any propane

gas within the tank, and the two regulators.4

       Although the combined value of the propane tank, the propane gas within it,

and the regulators is $1,330.00, as stated above, Defendant was only charged with

larceny of the propane tank. The only value the trial court could have properly

considered to determine the motion to dismiss as to the felony enhancement of larceny

was the value of the propane tank alone. To find the value of the propane tank, we

must subtract Speagle’s estimated value of the two regulators and propane gas from

his testimony of their $1,330.00 combined value.




       4  I come to this conclusion based only on logical reasoning and application of our general
jurisprudence as my exhaustive research has discovered no applicable caselaw regarding the issue of
how the light most favorable standard interacts with ranges of values.

                                                    16
                                       STATE V. WRIGHT

                       Murphy, J., concurring in part and dissenting in part




      b. The Value of the Propane Tank without the Regulators and Propane

Gas

      According to Speagle’s testimony, the value of each regulator was $90.00. One

regulator was attached to the propane tank while another was attached to the

building, meaning the total value of the regulators was $180.00. Additionally, it is

clear that Speagle’s valuation of $1,330.00 included both regulators, as he twice

stated “regulators” when he described what he was including in his valuation. When

the value of the two regulators ($180.00) is removed from the value provided by

Speagle for everything ($1,330.00), we find that the value of the propane tank and

any propane gas within the tank was $1,150.00.

      At the time the propane tank was stolen, there was up to $300.00 worth of

propane gas in the tank.         However, we cannot assume that Speagle was

approximating the value of the propane tank absent any propane gas. Speagle

consistently included the “gas” or “fuel” when he described what he was including in

calculating his value of $1,330.00. Speagle’s estimate included the value of an unclear

amount of gas, with a maximum value of $300.00. There was no evidence presented

as to how much gas Speagle was including in his estimate of the combined value of

the propane tank, propane gas, and regulators. Although he was basing his valuation

on the assumption there was gas within the propane tank when he identified it at



                                                17
                                         STATE V. WRIGHT

                         Murphy, J., concurring in part and dissenting in part




and removed it from Defendant’s residence, he explicitly stated “I don’t have a clue

how much [fuel was in the propane tank].” Any decision as to how much gas there

was in the tank and its corresponding value is entirely speculative, and the jury could

not have properly decided this value in calculating the value of the tank without the

fuel.

        That being said, to recreate the jury’s only legally acceptable path to deducing

the value of the propane tank, we are faced with the impossible task of determining

the value of an unknown amount of gas, ranging from $0.01-$300.00. The amount of

propane gas that the jury determined to be within the propane tank was dispositive

of whether Defendant was convicted of felonious or misdemeanor larceny because

after removing the value of the regulators the value of the propane tank and the

propane gas within it was $1,150.00. If the jury were to determine the propane gas

was worth anywhere between $0.01-$149.99, then when it would have removed this

value it would have been left with a value exceeding $1,000.00 for the propane tank,

satisfying the requirement of felonious larceny; however, if the jury were to determine

the propane gas was worth anywhere between $150.00-$300.00, then when it would

have removed this value it would have been left with a value of $1,000.00 or less for

the propane tank satisfying only the requirement of misdemeanor larceny. This

impossible task is the exact hurdle required of the jury in this case if it was to properly



                                                  18
                                       STATE V. WRIGHT

                       Murphy, J., concurring in part and dissenting in part




determine the value of the tank alone from the testimony presented at trial, and it is

the type of speculation that the law prohibits.

      Like in Parker, in this case there is an estimate of multiple items of stolen

property—a propane tank, the regulators, and the propane gas within it—not all of

which Defendant was charged with stealing, but “there is simply no evidence

regarding the . . . value of the” item Defendant was charged with stealing, the propane

tank. Parker, 146 N.C. App. at 718, 555 S.E.2d at 611. Although there is testimony

on the value of the regulators, and the maximum potential value of the propane gas,

it is impossible to extrapolate the value of the propane tank from this testimony

because there is nothing in the Record to suggest how much propane gas was being

included in Speagle’s combined estimate of the propane tank, the propane gas, and

the regulators. This evidence “is sufficient only to raise a suspicion or conjecture as

to . . . the commission of” felonious larceny because any determination of how much

propane gas was in the tank for the purposes of the estimate would be conjecture, and

thus any corresponding determination of the value of the propane tank would also be

conjecture. Powell, 299 N.C. at 98, 261 S.E.2d at 117. Here, like in Parker, there was

no evidence for the jury to determine “to any certainty the value of the” propane tank

that Defendant was charged with stealing, and allowing the jury to speculate about

the value of the propane tank was improper. Parker, 146 N.C. App. at 718, 555 S.E.2d



                                                19
                                       STATE V. WRIGHT

                       Murphy, J., concurring in part and dissenting in part




at 611. The trial court should have granted Defendant’s motion to dismiss as to the

charge of felonious larceny and felonious possession of stolen goods. I would vacate

the conviction for felonious larceny and felonious possession of stolen goods and

remand for entry of judgment for misdemeanor larceny or misdemeanor possession

of stolen goods and resentencing accordingly.

                                       CONCLUSION

      The indictment here only refers to the “propane tank,” so only the value of the

propane tank is considered to determine if Defendant should have been convicted of

felonious or misdemeanor larceny. The State presented evidence that required the

jury to speculate as to the value of the propane tank. It was impossible to determine,

and therefore impossible to remove without speculation, the value of the propane gas

included in the combined estimate of the propane tank, any propane gas within the

tank, and the regulators attached to the tank and the building. When the evidence

requires the jury to speculate as to the value of stolen property, a motion to dismiss

should be granted. Therefore, the trial court erred in not granting Defendant’s

motion to dismiss as to felonious larceny and felonious possession of stolen goods, and

we should vacate Defendant’s felonious larceny charge and remand for entry of

judgment for misdemeanor larceny or misdemeanor possession of stolen goods and

resentencing accordingly.



                                                20
                                       STATE V. WRIGHT

                       Murphy, J., concurring in part and dissenting in part




      Were we to vacate the conviction for felonious larceny and remand for entry of

judgment for misdemeanor larceny or misdemeanor possession of stolen goods and

resentencing, the second issue raised by Defendant would be moot, as any error in

failing to instruct the jury that the propane tank must have been shown to be worth

more than $1,000.00 for the purposes of felonious larceny would have no effect.

Finally, as to the erroneous sentencing under both larceny and possession of stolen

goods, I concur with the Majority.




                                                21
