                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA15-1060

                              Filed: 17 January 2017

Onslow County, No. 13 CRS052870, 053006-07

STATE OF NORTH CAROLINA

               v.

KRYSTEN S. GREENE, Defendant.


      Appeal by defendant from judgments entered on 4, 6 and 13 May 2015 by Judge

John E. Nobles, Jr. in Superior Court, Onslow County. Heard in the Court of Appeals

22 February 2016.


      Attorney General Josh Stein, by Special Deputy Attorney General I.
      Faison Hicks, for the State.


      Parish & Cooke, by James R. Parish, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals from several convictions for theft-related offenses. We

vacate defendant’s convictions for larceny from the person because the evidence does

not establish the necessary elements to sustain a conviction of larceny from the

person and remand for judgment to be entered on the lesser-included offense of

misdemeanor larceny and any resentencing if necessary due to two of defendant’s

multiple convictions being vacated. We find no error as to defendant’s remaining

convictions.
                                  STATE V. GREENE

                                  Opinion of the Court



                                     I.     Background

       The State’s evidence tended to show in November 2012, Ms. Ramona Tongdee

was at the hospital with her grandmother because her grandfather was hospitalized

for a stroke. Ms. Tongdee and her grandmother were in a waiting room furnished

with couches, recliners, and chairs. Ms. Tongdee fell asleep on a couch and when she

awoke her “purse was on the floor. Rather than kind of tucked away, it was on the

floor with things spilled out of it[.]” Ms. Tongdee’s grandmother’s purse “was on the

couch, in the same manner.”       Ms. Tongdee was missing her pink .40 caliber

semiautomatic pistol and her grandmother was missing $75.00.

      The hospital had security video cameras in this area and the security footage

showed a man “going through Ms. Tongdee’s purse, as well as other family members’

property, while they were asleep in the room. Altogether, the time frame spanned

about 11 minutes, while the male was going through the their [(sic)] property while

they slept.” Later, in a field near a residence, officers discovered a pink pistol. Mr.

Julian Spencer later arrived at the residence and told the officers he was there to get

a dog from inside the residence, but he did not have a key. Mr. Spencer then admitted

that he was working with defendant.

      In April of 2013, Ms. Marcia Humphrey returned to her home and discovered

that thousands of dollars of cash and old coins, including an 1857 quarter, were

missing from her home. Defendant’s fingerprint was found in Ms. Humphrey’s home,



                                          -2-
                                  STATE V. GREENE

                                  Opinion of the Court



although Ms. Humphrey did not know him or give him permission to be in her home.

Thereafter, defendant’s girlfriend pawned Ms. Humphrey’s 1857 quarter.

      In April of 2014, defendant was indicted for several crimes. Ultimately, the

jury convicted him of felonious breaking and/or entering, felonious larceny after

breaking and/or entering, felonious possession of stolen goods/property, larceny of a

firearm, possession of a stolen firearm, two counts of larceny from the person,

felonious possession of stolen goods/property, feloniously conspiring to possess stolen

goods/property, and possession of a firearm by felon. In February of 2015, defendant

“admitted habitual felon status.” (Original in all caps.)      The trial court entered

judgments, and defendant appeals.

                                  II.    Motion to Dismiss

      Defendant contends that two of his motions to dismiss should have been

allowed.

                   The standard of review for a motion to dismiss is
             well known. A defendant’s motion to dismiss should be
             denied if there is substantial evidence of: (1) each essential
             element of the offense charged, and (2) of defendant’s being
             the perpetrator of the charged offense. Substantial
             evidence is relevant evidence that a reasonable mind might
             accept as adequate to support a conclusion. The Court must
             consider the evidence in the light most favorable to the
             State and the State is entitled to every reasonable
             inference to be drawn from that evidence.

State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and

quotation marks omitted).


                                         -3-
                                  STATE V. GREENE

                                  Opinion of the Court



A.    Larceny from the Person

      Defendant first contends that the trial court erred in failing to dismiss the

charge of larceny from the person from Ms. Tongdee and her grandmother due to

insufficiency of the evidence.

                   The essential elements of larceny are: (1) taking the
             property of another; (2) carrying it away; (3) without the
             owner’s consent; and (4) with intent to permanently
             deprive the owner of the property. It is larceny from the
             person if the property is taken from the victim’s person or
             within the victim’s protection and presence at the time of the
             taking.

State v. Hull, 236 N.C. App. 415, 418, 762 S.E.2d 915, 918 (2014) (emphasis added)

(citations and quotation marks omitted). Our Supreme Court has explained that the

definition of a taking “from the person” was established by the common law:

                    This Court recently addressed the crime of larceny
             from the person in State v. Buckom, 328 N.C. 313, 401
             S.E.2d 362 (1991). We noted that because the North
             Carolina General Statutes do not define the phrase “from
             the person” as it relates to larceny, the common law
             definition controls. We quoted with approval from the
             common law description of “from the person”:
                    Property is stolen “from the person,” if it was
                    under the protection of the person at the time.
                    Property attached to the person is under the
                    protection of the person even while he is
                    asleep. And the word “attached” is not to be
                    given a narrow construction in this regard. It
                    will include property which is being held in
                    the hand, or an earring affixed to the ear, or a
                    chain around the neck, or anything in the
                    pockets of clothing actually on the person’s
                    body at the moment. Moreover, property may


                                         -4-
                                   STATE V. GREENE

                                   Opinion of the Court



                    be under the protection of the person although
                    not actually “attached” to him. Thus if a man
                    carrying a heavy suitcase sets it down for a
                    moment to rest, and remains right there to
                    guard it, the suitcase remains under the
                    protection of his person. And if a jeweler
                    removes several diamonds and places them on
                    the counter for the inspection of a customer,
                    under the jeweler’s eye, the diamonds are
                    under the protection of the person. On the
                    other hand, one who is asleep is not actually
                    protecting property merely because it is in his
                    presence. Taking property belonging to a
                    sleeping person, and in his presence at the
                    time, is not larceny from the person unless the
                    thing was attached to him, in the pocket of
                    clothing being worn by him, or controlled by
                    him at the time in some equivalent manner.
             The crime of larceny from the person is regularly
             understood to include the taking of property “from one’s
             presence and control.” Thus, for larceny to be “from the
             person,” the property stolen must be in the immediate
             presence of and under the protection or control of the victim
             at the time the property is taken.

State v. Barnes, 345 N.C. 146, 148–49, 478 S.E.2d 188, 190 (1996) (citations omitted).

      State v. Buckom clarifies,

                    At common law, Larciny [sic] from the person is
             either by privately stealing; or by open and violent assault,
             which is usually called robbery. Open and violent larciny
             [sic] from the person, or robbery is the felonious and
             forcible taking from the person of another, of goods or
             money to any value by violence or putting him in fear. The
             difference between the two forms of larceny referred to by
             Blackstone is that robbery, even in its least aggravated
             form, is an open and violent larciny [sic] from the person,
             or the felonious taking, from the person [of,] or in the
             presence of[,] another, of goods or money against his will


                                          -5-
                                         STATE V. GREENE

                                         Opinion of the Court



                by violence or by putting him in fear, whereas stealing from
                the person is a concealed, clandestine activity. At common
                law, larceny from the person differs from robbery in that
                larceny from the person lacks the requirement that the
                victim be put in fear. Larceny from the person forms a
                middle ground in the common law between the private
                stealing most commonly associated with larceny, and the
                taking by force and violence commonly associated with
                robbery.

328 N.C. 313, 317, 401 S.E.2d 362, 364–65 (1991) (citations, quotation marks, and

ellipses omitted).

        Defendant argues that our Supreme Court clarified in State v. Barnes that

“[t]aking property belonging to a sleeping person, and in his presence at the time, is

not larceny from the person unless the thing was attached to him, in the pocket of

clothing being worn by him, or controlled by him at the time in some equivalent

manner.” 345 N.C. 146, 149, 478 S.E.2d 188, 190 (1996). Defendant argues that

because Ms. Tongdee’s purse and her grandmother’s purse were not attached to them

as they slept, there was insufficient evidence of larceny from the person.

        The State’s argument essentially concedes that the purses were not attached

to or touching the victims and takes a creative technological approach to defendant’s

contentions. The State argues that even if the purses were not attached to their

owners, the purses were still under their protection thanks to their vicarious “eye” of

the video cameras in the hospital1:


        1 The videotape of the incident is not in our record, so our statement of the facts and analysis
is based upon the testimony at trial, some of which describes what is happening in the video.

                                                 -6-
                                  STATE V. GREENE

                                  Opinion of the Court



                    Property is under the protection of a person, such
             that it can be the subject of a larceny from the person, so
             long as, among other things, it is under the person’s eye.
             E.g., State of North Carolina v. Buckom, 328 N.C. 313, 401
             S.E.2d 362 (1991) (“If a jeweler removes several diamonds
             and places them on the counter for the inspection of a
             customer, under the jeweler’s eye, the diamonds are under
             the protection of the person.”)
                    Here, the evidence showed that Ms. Tongdee and
             [her grandmother] placed their purses essentially right
             next to their bodies as they lay down to sleep. And the
             evidence also showed that they went to sleep in a room that
             was equipped with a video surveillance camera that
             created a motion picture photo-recording of every human
             action that occurred during every second while Ms.
             Tongdee and [her grandmother] slept in the ICU waiting
             room. This video surveillance camera acted as the
             functional equivalent to the jeweler’s eye in Buckom.

(Quotation marks and brackets omitted). The State’s argument takes the meaning

of “under the jeweler’s eye,” far out of context and beyond its meaning as used in case

law. Buckom, 328 N.C. at 318, 401 S.E.2d at 365; see State v. Boston, 165 N.C. App.

890, 893, 600 S.E.2d 863, 865 (2004).

      In State v. Boston, this Court noted that cases addressing the situations where

property was taken from the person emphasize the importance of “the awareness of

the victim of the theft at the time of the taking[.]” 165 N.C. App. at 893, 600 S.E.2d

at 865. In Boston, the defendant testified that he was having a conversation with the

victim in the victim’s home and “noticed a wallet on a little table near where

defendant was standing. Defendant then took the wallet and walked out the door.”

Id. at 891, 600 S.E.2d at 864. The victim had turned away and did not see the


                                         -7-
                                         STATE V. GREENE

                                         Opinion of the Court



defendant take the wallet. Id. at 893, 600 S.E.2d at 865.                 This Court determined

that the trial court erred by failing to instruct the jury on misdemeanor larceny

because the “defendant presented evidence that the wallet was not under the eye of,

or the protection or control of, Mr. Skinner at the time the wallet was taken.” Id. The

court in Boston noted that its

               holding is consistent with the North Carolina Supreme
               Court’s decision in State v. Buckom, 328 N.C. 313, 401
               S.E.2d 362 (1991). In Buckom, the Court held that the
               “from the person” element of larceny from the person was
               supported by evidence that the defendant took money from
               the open drawer of a cash register at the same time the
               cashier was reaching in the drawer to make change. What
               distinguishes Buckom from Lee[2] and Barnes is not only
               the distance involved, which is relevant to immediate
               presence, but also the awareness of the victim of the theft
               at the time of the taking, which is relevant to protection
               and control. This distinction is further supported by dicta
               in Buckom and Barnes. Both cases cited the example of
               diamonds placed on the counter and “under the jeweler’s
               eye” as remaining under the protection of the jeweler.
               Buckom, 328 N.C. at 318, 401 S.E.2d at 365; Barnes, 345
               N.C. at 148, 478 S.E.2d at 190.

Id.
       Video surveillance systems may make a photographic record of a taking, but

they are no substitute for “the awareness of the victim of the theft at the time of the

taking[.]” Id. Many stores, office buildings, and even city streets now have video

camera surveillance. Furthermore, it is increasingly common for individuals to have


       2 In State v. Lee, this Court determined that the taking of a handbag from a grocery cart when
the owner was “four or five steps away” looking at the grocery shelves was not larceny from the person.
88 N.C. App. 478, 478–79, 363 S.E.2d 656, 656 (1988) (quotation marks omitted).

                                                 -8-
                                   STATE V. GREENE

                                   Opinion of the Court



video security systems in their yards and homes, and some systems will allow

individuals to view the video from their home system on their phone or computer

when away from the residence.       The State’s theory of video surveillance as the

“functional equivalent” of the human eye would convert any larceny committed in

areas monitored by video to larceny of the person. Sometimes technological changes

may lead quite reasonably to changes in the law, but the essence of larceny from the

person is still that it is from the person, which requires the person’s awareness at the

time of the taking unless the item was attached to the person. See id.

       Nor does the evidence here show that the purses were attached, in the owners’

pocket, or controlled in a like manner. See Barnes, 345 N.C. at 149, 478 S.E.2d at

190.   Ms. Tongdee testified that her purse was between her and her daughter

“touching the couch” and that her grandmother’s “purse was between her

[grandmother] and the recliner and the couch[.]” Even though the purses were close

to their owners, the evidence does not show that the purses were actually even

touching them. Because Ms. Tongdee and her grandmother were sleeping at the time

of the larceny, without their purses “attached to [them], in the pocket of clothing being

worn by [them], or controlled by [them] at the time in some equivalent manner[,]”

id., we conclude that there was insufficient evidence that “the property [was] taken

from the victim[s’] person or within the victim[s’] protection and presence at the time

of the taking.” Hull, 236 N.C. App. at 418, 762 S.E.2d at 918. Therefore, we vacate



                                          -9-
                                  STATE V. GREENE

                                  Opinion of the Court



and remand for entry of judgment on misdemeanor larceny. See generally Lee, 88

N.C. App. at 479–80, 363 S.E.2d at 657 (“In vacating the larceny from the person

conviction, however, we note that the evidence and verdict support a conviction of the

lesser included offense of misdemeanor larceny, and remand the matter to the trial

court so defendant can be sentenced for that offense in compliance with G.S. 14-3(a).”

(citation omitted)).

B.    Conspiracy to Possess Stolen Property

      Defendant next contends that the trial court erred in failing to dismiss the

charges of conspiracy to possess stolen goods, i.e., the gun. Defendant concedes he

was in possession of stolen property but argues the evidence was insufficient as to

any conspiracy. “A criminal conspiracy is an agreement between two or more persons

to do an unlawful act. A conspiracy may be shown by express agreement or an implied

understanding. A conspiracy may be shown by circumstantial evidence[.]” State v.

Choppy, 141 N.C. App. 32, 39, 539 S.E.2d 44, 49 (2000) (citations, quotation marks,

and brackets omitted).

      The evidence showed that defendant made a phone call from jail to Mr.

Spencer. Thereafter, Mr. Spencer showed up at the residence where the pistol was

and admitted to “working with” defendant. The jury could reasonably infer from the

evidence that Mr. Spencer conspired with defendant to possess the pistol. See id. We

conclude that there was sufficient evidence of a conspiracy to possess stolen property,



                                         - 10 -
                                 STATE V. GREENE

                                 Opinion of the Court



see id., and thus the trial court properly denied defendant’s motion to dismiss. This

argument is overruled.

                                III.   Hearsay Testimony

      Defendant next raises several hearsay issues.

A.    Hearsay with Same Evidence Admitted

      Defendant contends that the trial court erred in overruling his objection to

hearsay as to Detective Lincoln’s testimony regarding what a witness told him about

a vehicle description, the owner of that vehicle, and the relationship between

defendant and the vehicle owner, defendant’s girlfriend. We need not review these

arguments because even if Detective Lincoln’s testimony was inadmissible hearsay,

the same evidence was admitted on several other occasions without objection,

including by another detective. See State v. Perry, 159 N.C. App. 30, 37, 582 S.E.2d

708, 713 (2003) (“By failing to object to the later admission of the same evidence,

defendant has waived any benefit of the original objection and failed to preserve the

issue for appeal.”). These arguments are overruled.

B.    Plain Error

      Defendant also contends that although he failed to object, the trial court

committed plain error in allowing Detective Lincoln to testify that Mr. Spencer was

linked to several other crimes with defendant, and he had admitted to working with

defendant.



                                        - 11 -
                                  STATE V. GREENE

                                  Opinion of the Court



             [T]he plain error standard of review applies on appeal to
             unpreserved instructional or evidentiary error. For error
             to constitute plain error, a defendant must demonstrate
             that a fundamental error occurred at trial. To show that
             an error was fundamental, a defendant must establish
             prejudice—that, after examination of the entire record, the
             error had a probable impact on the jury’s finding that the
             defendant was guilty. Moreover, because plain error is to
             be applied cautiously and only in the exceptional case, the
             error will often be one that seriously affects the fairness,
             integrity or public reputation of judicial proceedings[.]

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

marks, and brackets omitted). Considering the other evidence regarding a conspiracy

with Mr. Spencer, including that defendant called him from jail, and thereafter Mr.

Spencer showed up at the location where the stolen pistol was hidden, even if there

was hearsay testimony as to the relationship between the two, we do not believe this

“error had a probable impact on the jury’s finding that the defendant was guilty.” Id.

                      IV.    Ineffective Assistance of Counsel

      Defendant next argues that he received ineffective assistance of counsel

because his attorney elicited the hearsay testimony regarding the relationship

between himself and Mr. Spencer.

             To obtain relief for ineffective assistance of counsel, the
             defendant must demonstrate initially that his counsel’s
             conduct fell below an objective standard of reasonableness.
             The defendant’s burden of proof requires the following:
                   First, the defendant must show that counsel’s
                   performance was deficient. This requires
                   showing that counsel made errors so serious
                   that counsel was not functioning as the


                                         - 12 -
                                   STATE V. GREENE

                                   Opinion of the Court



                   counsel guaranteed the defendant by the
                   Sixth Amendment. Second, the defendant
                   must show that the deficient performance
                   prejudiced the defense.         This requires
                   showing that counsel’s errors were so serious
                   as to deprive the defendant of a fair trial, a
                   trial whose result is reliable.
              The defendant must show that there is a reasonable
             probability that, but for counsel’s unprofessional errors,
             the result of the proceeding would have been different. A
             reasonable probability is a probability sufficient to
             undermine confidence in the outcome.

State v. Quick, 152 N.C. App. 220, 222, 566 S.E.2d 735, 737 (2002) (citations and

quotation marks omitted). Even generously presuming arguendo that defendant’s

attorney committed an error in his cross-examination of Detective Lincoln, defendant

has not shown that, “but for counsel’s unprofessional errors, the result of the

proceeding would have been different” given the telephone call between the two from

jail coupled with Mr. Spencer thereafter showing up where the gun was hidden. Id.

We conclude that defendant did not receive ineffective assistance of counsel. This

argument is overruled.

                              V.      Jury Instructions

      Defendant next contends that the trial court committed plain error in

reinstructing the jury on larceny from the person as the instructions “amounted to a

directed verdict of guilty since the court did not explain that the person would not

physically possess the property or not be within the person’s protection if the person

was asleep at the time of the taking.” (Original in all caps.) As we have already


                                          - 13 -
                                    STATE V. GREENE

                                    Opinion of the Court



vacated and remanded for defendant’s conviction of larceny of the person and as

defendant does not challenge the instruction regarding the elements of misdemeanor

larceny, we need not address this issue.

                              VI.      Arrest Judgment

      Lastly, defendant contends that the trial “court should arrest judgment on one

of the two larceny of the persons in 13 CRS 53006 since the thefts occurred during a

continuous transaction and is thus one larceny for the purposes of conviction and

sentencing.” (Original in all caps.) Defendant contends that his theft of the gun from

Ms. Tongdee and the cash from her grandmother were part of one continuous

transaction.   Defendant cites to State v. Froneberger, where the defendant was

convicted after pawning items of silver from the same larceny victim on four separate

occasions, and this Court set aside three of the convictions because there was no

evidence that the larceny was not actually one transaction, but then defendant

pawned the items over time. See Froneberger, 81 N.C. App. 398, 344 S.E.2d 344

(1986). The Court noted the general rule, “A single larceny offense is committed

when, as part of one continuous act or transaction, a perpetrator steals several items

at the same time and place.” Id. at 401, 344 S.E.2d at 347. Thus, because in

Froneberger, all of the items stolen belonged to the same owner and were taken from

the same place without any evidence that the items were taken at different times,

this Court set aside three of the convictions. Id. at 401-02, 344 S.E.2d at 347.



                                           - 14 -
                                  STATE V. GREENE

                                  Opinion of the Court



Evidence indicating property was taken from the same person led to only one

conviction of larceny for the defendant. See id.

      But here, the takings were from two separate victims.        In an analogous

situation, regarding robbery, this Court has determined that when the “defendants

threatened the use of force on separate victims and took property from each of them.

. . . [E]ach separate victim was deprived of property. The armed robbery of each

person is a separate and distinct offense, for which defendants may be prosecuted and

punished.” State v. Johnson, 23 N.C. App. 52, 56, 208 S.E.2d 206, 209 (1974). Here,

defendant took property from both Ms. Tongdee and her grandmother. In fact, the

jury saw the video surveillance recording which showed that defendant walked up to

the couch where Ms. Tongdee was sleeping, took a purse, went through it, took the

gun, began to walk away, and then turned around, walked back to the waiting area,

and grabbed a purse from a chair where Ms. Tongdee’s grandmother was asleep.

Defendant walked away after taking Ms. Tongdee’s gun and appeared to be leaving,

but then he returned to take her grandmother’s purse.

      The elements of larceny are: “(1) taking the property of another; (2) carrying

it away; (3) without the owner’s consent; and (4) with intent to permanently deprive

the owner of the property.” Hull, 236 N.C. App. at 418, 762 S.E.2d at 918. Here

defendant took and carried away property belonging to two separate victims, without

either owner’s consent, and with the intent to permanently deprive each of them of



                                         - 15 -
                                  STATE V. GREENE

                                  Opinion of the Court



their personal property, and thus the jury was properly allowed to consider both

charges and the trial court properly sentenced defendant upon them. See generally

Johnson, 23 N.C. App. at 56, 208 S.E.2d at 209. This argument is overruled.

                                  VII.   Conclusion

      For the foregoing reasons, we vacate defendant’s convictions for larceny from

the person and remand for entry of judgments for misdemeanor larceny and any

necessary resentencing on defendant’s multiple convictions. As to all other issues

raised on appeal, we find no error.

      VACATED and REMANDED in part; NO ERROR in part.

      Judges CALABRIA and TYSON concur.




                                         - 16 -
