An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1002
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 April 2014


STATE OF NORTH CAROLINA

       v.                                       Haywood County
                                                No. 11 CRS 54179, 54180, 54236,
                                                54238
ALEX STEPHEN LOFTIS



       Appeal by defendant from judgments entered 22 January 2013

by Judge Nathaniel J. Poovey in Haywood County Superior Court.

Heard in the Court of Appeals 22 January 2014.


       Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant
       Attorney General, for the State.

       Staples S. Hughes, Appellate Defender, by Andrew DeSimone,
       Assistant Appellate Defender, for defendant-appellant.


       STEELMAN, Judge.


       The trial court erred in failing to charge the jury that it

could not convict defendant of both larceny by an employee and

armed   robbery.        A   conspiracy     is    committed      at   the   time   of

agreement between the parties.            The fact that the ultimate crime

may have been either larceny by an employee or armed robbery

does    not   preclude      guilt    of   conspiracy      for    larceny    by    an
                                           -2-
employee.      Since there was evidence that defendant committed

both robbery and larceny by an employee, the trial court did not

commit     plain     error    in     its     jury    charge      on      second-degree

kidnapping.         Where    defense   counsel       made   no    inquiry       about    a

witness’ character for truthfulness, but rather asked what kind

of   person   the    witness    was,       the   trial   court     did    not    err    in

sustaining the State’s objection.

                    I. Factual and Procedural Background

      On 10 November 2011, a masked man boarded an armored car

owned by Dunbar Armored Incorporated (Dunbar) and driven by Alex

Loftis (defendant).          Defendant and James Ray Godley IV (Godley)

were employees of Dunbar and were servicing automatic teller

machines.     The masked man threatened defendant and Godley with a

stun gun, tied them up, and took about one million dollars in

cash.    Jerry Bogan (Bogan) later confessed to being the masked

man, and told law enforcement that he and defendant had planned

and executed the robbery.

      Defendant was charged with larceny by an employee greater

than $100,000, robbery with a dangerous weapon, second-degree

kidnapping    of     Godley,       conspiracy       to   commit       larceny    by     an

employee    greater    than    $100,000,         conspiracy   to      commit    robbery

with a dangerous weapon, and conspiracy to commit second-degree
                                  -3-
kidnapping of Godley.       The jury found defendant not guilty of

conspiracy    to   commit   robbery    with   a    dangerous    weapon    and

conspiracy    to   commit    second-degree        kidnapping,   but      found

defendant guilty of     the remaining charges.           The trial court

sentenced defendant to a consolidated term of imprisonment of

73-97 months for the larceny, robbery, and conspiracy to commit

larceny charges.     A second consecutive judgment of 25-39 months

was imposed for the second-degree kidnapping charge.             The second

judgment was suspended for 36 months, and defendant was placed

upon supervised probation.

    Defendant appeals.

             II. Larceny by an Employee and Armed Robbery

    In his first argument, defendant contends that the trial

court erred or committed plain error by entering judgment on

both the larceny by an employee and the armed robbery charges,

and in failing to instruct the jury that defendant could not be

found guilty of both offenses.        We agree.

                        A. Standard of Review

    The North Carolina Supreme Court “has elected to review

unpreserved issues for plain error when they involve either (1)

errors in the judge’s instructions to the jury, or (2) rulings
                               -4-
on the admissibility of evidence.” State v. Gregory, 342 N.C.

580, 584, 467 S.E.2d 28, 31 (1996).

         [T]he plain error rule ... is always to be
         applied   cautiously   and    only   in  the
         exceptional case where, after reviewing the
         entire record, it can be said the claimed
         error is a “fundamental error, something so
         basic, so prejudicial, so lacking in its
         elements that justice cannot have been
         done,” or “where [the error] is grave error
         which amounts to a denial of a fundamental
         right of the accused,” or the error has
         “‘resulted in a miscarriage of justice or in
         the denial to appellant of a fair trial’” or
         where the error is such as to “seriously
         affect the fairness, integrity or public
         reputation of judicial proceedings” or where
         it can be fairly said “the instructional
         mistake had a probable impact on the jury's
         finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333

(2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

                           B. Analysis

    Defendant was tried for both larceny by an employee and

robbery with a dangerous weapon.     The trial court instructed the

jury on both charges, and did not charge the jury that defendant

could only be found guilty of one of the charges.     Defendant did

not object to these jury instructions at trial, and we therefore

review this issue only for plain error.
                                         -5-
       The elements of larceny by an employee, as defined by N.C.

Gen. Stat. § 14-74, are “(1) the defendant was an employee of

the owner of the stolen goods; (2) the goods were entrusted to

the defendant for the use of the employer; (3) the goods were

taken    without   the      permission    of   the    employer;     and   (4)   the

defendant had the intent to steal the goods or to defraud his

employer.” State v. Frazier, 142 N.C. App. 207, 209, 541 S.E.2d

800, 801 (2001).           Unlike common law larceny, “[l]arceny by an

employee requires lawful possession.”                State v. Brown, 56 N.C.

App. 228, 231, 287 S.E.2d 421, 424 (1982).

       The elements of robbery with a dangerous weapon are “(1) an

unlawful taking or an attempt to take personal property from the

person or in the presence of another; (2) by use or threatened

use of a firearm or other dangerous weapon; (3) whereby the life

of a person is endangered or threatened.”                   State v. Rogers, ___

N.C. App. ___, ___, 742 S.E.2d 622, 626 (2013) (quoting State v.

Gwynn, 362 N.C. 334, 337, 661 S.E.2d 706, 707–08 (2008)) (citing

N.C.    Gen.   Stat.   §    14-87).      Robbery     with    a   dangerous   weapon

involves a trespassory taking, see State v. McDonald, 130 N.C.

App. 263, 268, 502 S.E.2d 409, 413 (1998), as opposed to a

taking pursuant to lawful             possession,     such as larceny by an

employee.
                                      -6-
    Our Supreme Court has held that, “since property cannot be

obtained    simultaneously     pursuant     to   both   lawful    and    unlawful

means,     guilt    of   either      embezzlement       or     false    pretenses

necessarily excludes guilt of the other.”                    State v. Speckman,

326 N.C. 576, 578, 391 S.E.2d 165, 167 (1990).                     However, our

Supreme Court has also held that:

            Nevertheless, the State may join for trial
            two offenses when they “are based on the
            same act or transaction or on a series of
            acts or transactions connected together or
            constituting parts of a single scheme or
            plan,” N.C.G.S. § 15A–926(a) (2009), even if
            the defendant cannot be convicted of both
            offenses “due to the mutually exclusive
            nature   of    those   offenses,”  State  v.
            Speckman, 326 N.C. 576, 578, 391 S.E.2d 165,
            167 (1990) (citation omitted). When two such
            offenses    are    joined   for   trial  and
            substantial evidence supports each offense,
            both should be submitted to the jury. See
            id. at 579, 391 S.E.2d at 167. “[H]owever,
            the trial court must instruct the jury that
            it may convict the defendant only of one of
            the offenses or the other, but not of both.”
            Id. Because no such instruction was given
            here, the trial court erred.

State v. Melvin, 364 N.C. 589, 593, 707 S.E.2d 629, 632 (2010).

    In     the     instant   case,    defendant     was      charged    with   two

mutually exclusive offenses, larceny by an employee and robbery

with a dangerous weapon.          Pursuant to Melvin, it was not error

to submit both offenses to the jury.              However, the trial court

was required to instruct the jury that it could find defendant
                                   -7-
guilty of only one of the two offenses.            The failure to so

charge the jury was error.         We further hold that this error

constituted plain error since the jury convicted defendant of

both charges.

       We vacate the trial court’s judgment on the         charges of

robbery with a deadly weapon and larceny by an employee greater

than $100,000, and remand these two charges for a new trial.

See Speckman, 326 N.C. at 580, 391 S.E.2d at 167-68 (remanding

for new trial where the trial court’s error in permitting the

jury    to   convict   on   two   mutually   exclusive   offenses   was

prejudicial).    Upon retrial, the trial court is to instruct the

jury that defendant can be found guilty of one or neither, but

not both, of the charges.

            III. Denial of Defendant’s Motion to Dismiss
       The Charges of Larceny and Conspiracy to Commit Larceny

       In his second argument, defendant contends that the trial

court erred in denying his motion to dismiss the charges of

larceny by an employee and conspiracy to commit larceny by an

employee at the close of all of the evidence.      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).
                                        -8-
    “‘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).

                                 B. Analysis

    Defendant       contends     that    the   State    failed       to    present

sufficient evidence that defendant either conspired to commit or

committed the crime of larceny by an employee.

    The elements of larceny by an employee are set forth in

section   II    B   of   this   opinion.       To   establish    a    charge    of

conspiracy, the State must present evidence of “an agreement

between two or more persons to do an unlawful act or to do a

lawful act in an unlawful way or by unlawful means.”                      State v.

Bindyke, 288 N.C. 608, 615, 220 S.E.2d 521, 526 (1975).

    In    the   instant    case,   the     State    presented   evidence      that

defendant was employed by Dunbar, that the money was entrusted

to defendant for his employer’s purposes, that the money was

stolen, and that Bogan conspired with defendant to commit the
                                              -9-
theft.       We   hold     that      this    was    substantial    evidence     of   each

element      of   larceny       by   an     employee   and   conspiracy    to     commit

larceny by an employee.

       Defendant argues that there was not sufficient evidence to

find him guilty of larceny by an employee, because the evidence

suggests      that   the    money      was     taken   via   a    trespassory     taking

rather than while defendant was in lawful possession.                            We hold

that there was sufficient evidence in the record for the jury to

have found either that there was a trespassory taking, or that

there was a conversion of the money while it was in the lawful

possession of defendant.               The trial court did not err in denying

defendant’s       motion    to       dismiss    the    charges    of   larceny    by   an

employee and conspiracy to commit larceny by an employee at the

close of all of the evidence.

       This argument is without merit.

           IV. Jury Instruction on Second-Degree Kidnapping

       In his third argument, defendant contends that the trial

court erred in instructing the jury on second-degree kidnapping.

We disagree.

       The trial court instructed the jury that it could convict

defendant of second-degree kidnapping if it found that he acted

“for   the    purpose      of     facilitating        the   defendant's   or     another
                                         -10-
person's     commission      of   either      larceny     by    an    employee    and/or

robbery      with    a      dangerous      weapon     or       any     lesser-included

offenses[.]”        Defendant contends that it was error to permit the

jury    to   find    that    defendant      engaged     in     kidnapping        for   the

purpose      of   facilitating     larceny      by   an    employee       because,      as

defendant argues above, there was no evidence that defendant

committed larceny by an employee.                    Because defendant did not

object to this instruction at trial, we review only for plain

error.

       In section III B of this opinion, we held that there was

sufficient evidence in the record for the court to submit the

charge of larceny by an employee to the jury.                        Because there was

evidence that defendant committed larceny by an employee, one of

the offenses underlying the charge of second-degree kidnapping,

the trial court did not commit plain error in instructing the

jury upon the charge of second-degree kidnapping.

       This argument is without merit.

                    V. Exclusion of Impeachment Evidence

       In his fourth argument, defendant contends that the trial

court     erred     in   excluding      the     testimony       of     Bogan’s    former

employer that was offered to impeach Bogan.                    We disagree.

                              A. Standard of Review
                                     -11-
    “Evidentiary errors are harmless unless a defendant proves

that absent the error a different result would have been reached

at trial.” State v. Ferguson, 145 N.C. App. 302, 307, 549 S.E.2d

889, 893, disc. review denied, 354 N.C. 223, 554 S.E.2d 650

(2001).

                               B. Analysis

    At      trial,    Dillon   Loftis       (Dillon),     defendant’s     older

brother,    testified   with   regard   to     defendant’s      character   for

truthfulness.        Specifically,    when    asked     about   his   brother’s

reputation for truthfulness, Dillon testified:

            He is -- Alex is the most trustworthy and
            caring person, selfless person that you'll
            ever meet. I'm sitting here as his brother,
            and I can honestly tell you that he was the
            best man at my wedding, cried with me during
            my wedding –-

            MR. JONES: Objection to that.

            THE COURT: Sustained.

    Afterwards, defense counsel and Dillon had the following

exchange:

            Q. You also had an occasion to know Jerry
            Bogan?

            A. Oh, we hired him at Cubicle Connections.
            And --

            Q. What kind of person is Jerry Bogan?

            MR. JONES: Objection.
                                           -12-


               THE COURT: Sustained.

               THE WITNESS: Complete opposite.

       Defendant contends that this latter question, “What kind of

person    is    Jerry    Bogan,”     was    a     legitimate   attack    on   Bogan’s

character for truthfulness pursuant to Rule 608(a) of the North

Carolina Rules of Evidence.                Defendant contends that the trial

court erred in sustaining the State’s objection to the question,

and to Dillon’s response, “Complete opposite.”                   Rule 608 states:

               Opinion    and   reputation    evidence   of
               character. — The credibility of a witness
               may be attacked or supported by evidence in
               the form of reputation or opinion as
               provided in Rule 405(a), but subject to
               these limitations: (1) the evidence may
               refer only to character for truthfulness or
               untruthfulness, and (2) evidence of truthful
               character is admissible only after the
               character of the witness for truthfulness
               has been attacked by opinion or reputation
               evidence or otherwise.

N.C.    R.     Evid.    608(a).      In     the     instant    case,    counsel      for

defendant did not ask, “What is Jerry Bogan’s reputation for

truthfulness,” which is permitted under Rule 608(a), but rather,

“What    kind    of    person   is   Jerry      Bogan?”   This   general      type   of

character evidence is prohibited under Rule 404 of the North

Carolina Rules of Evidence.
                                   -13-
      We hold that the trial court’s exclusion of this testimony

was not error.       Even assuming arguendo that it was error, we

hold that defendant has failed to show that, absent any possible

error, a different result would have been reached at trial.

      This argument is without merit.

                             VI. Conclusion

      We vacate the judgments on the charges of larceny by an

employee and armed robbery, and remand those two charges for a

new trial.     The jury shall be instructed that defendant may be

found guilty only of one or the other, or neither.             The trial

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

larceny by an employee and conspiracy to commit larceny by an

employee charges.       The trial court did not err in instructing

the   jury    on   second-degree   kidnapping   or   in   sustaining   the

State’s objection to improper character evidence solicited from

defendant’s brother.

      NO ERROR IN PART, VACATED AND REMANDED FOR NEW TRIAL IN

      PART.

      Judges STEPHENS and DAVIS concur.

      Report per Rule 30(e).
